to prevent the will from operating as if the appointment to David had never been contained in it?

To prevent the application of the 24th

section an intention must be shewn excluding that effect which is given to the will by the statute, namely, a continuing operation during the subsequent life of the testatrix; and to exclude the operation of the 27th section you must take the will as having been executed immediately before the death, and shew on the face of it an intention sufficient to deprive the general devise of the effect given to it by the statute, namely, that of being a valid execution of any general power of appointment which, at the time of his decease, might have been exercised by the testator. The statute must apply, unless the conclusions of the 24th and 27th sections are on the face of the will clearly repelled. I must, therefore, affirm the decree of the Vice Chancellor, and, as a necessary consequence, I must dismiss this petition of rehearing, with costs.

Baron and Feme-Wife's Equity to a Settlement out of Real Estate as against the Assignees in Insolvency of her HusbandBill by Wife.

A wife, suing in forma pauperis without a next friend, held to be entitled as against the assignees in insolvency of her husband to a settlement for her separate use for life of the rents of real property, the legal estate in which was vested in trustees for her benefit for life.

This was a suit by a married woman, suing in forma pauperis, without a next friend (1), against the assignees in insolvency of her husband, for the purpose of obtaining a settlement for her separate use for life of the rents of real estate vested in trustees for her benefit for life.

Sarah Read, by will, dated in November 1849, gave all her real estate to trustees upon trust to pay the rents of certain houses in Nottingham to her daughter, the

(1) Vide Re Barnes, 31 Law J. Rep. (N.S.) Chanc. 455.

plaintiff, Elizabeth Barnes, for life, and after the plaintiff's death, the testatrix gave such real estate for the benefit of the children or descendants of the children of the plaintiff.

The testatrix died in June 1852.

In December 1859, the plaintiff's husband, Thomas Barnes, petitioned the Court for the Relief of Insolvent Debtors for protection from process, and the defendants Waller and White were appointed official and creditors' assignees respectively.

The bill alleged that Barnes was now a labourer, and that his earnings were not sufficient to maintain his wife, and that he did not maintain her. No settlement had been made upon the plaintiff upon her marriage, and she was now living with her daughters, who were themselves in a state of great poverty.

The bill prayed for an account against Robinson and Watts, the trustees of the testatrix, of the rents of her real estate, and for a declaration "that the plaintiff was entitled to the sum so found due from the defendants Robinson and Watts as last aforesaid, and to the rents and profits of the said hereditaments and premises which should accrue due during her life for her separate use, and that the defendants Robinson and Watts might be decreed to pay the same to the plaintiff upon her sole receipt, or else that a proper settlement or provision might be made for the plaintiff out of the same."

The income of the property was 351. per

annum.

Mr. Greene and Mr. F. C. J. Millar, for the plaintiff, relied on Bosvil v. Brander (2) and Sturgis v. Champneys (3).

Mr. Shee, for the trustees.

Mr. Bevir, for the assignees in insolvency of Thomas Barnes.-If the property in question had been personalty, the assignees could not have resisted the wife's equity to a settlement thereout. The property here, however, was realty, and the wife could not come as plaintiff and ask for a settlement. The circumstance of the wife being plaintiff made the present case distinguishable from Sturgis v. Champneys, where the wife was a defendant and resisted a claim by the assignees in insolvency of her husband to

(2) 1 P. Wms. 458.

(3) 5 Myl. & Cr. 97; s. c. 9 Law J. Rep. (N.s.) Chanc. 10.

real estate to which she was entitled for life, and the legal estate in which was vested in mortgagees.

STUART, V.C.-I think there is no doubt about the equity of the wife to a settlement in this case. If the assignees had been plaintiffs, it is clear that the wife would have been considered to be entitled, but it is said that as the property here is realty, the wife cannot succeed unless the plaintiffs are persons claiming in right of the husband.

In all cases of personal property, the wife may, as plaintiff, assert her right to a settlement in the same manner as if those claiming in right of her husband had been plaintiffs. That being so in regard to personalty, the same principle must be applied to real estate. It would be ridiculous to say that a starving wife can only be relieved if other people come to the Court to obtain possession of her property.

I think the plaintiff has a right to maintain this suit, and that her right to a settlement for her separate use for life of the whole of the income of the property in question cannot be denied.

lature has given to every judgment and decree of the superior Courts at Westminster, both at law and in equity, a very peculiar effect and operation. The judg ment or decree is to operate as a charge upon the estate and interest of the debtor in any lands, tenements or hereditaments, and the creditor, at the end of the year, is to have the same remedies in a Court of equity against the hereditaments so charged as he would be entitled to if the judgment debtor had, by writing under his hand, agreed to charge his estate with the amount of such judgment debt and interest thereon. This enactment gives to the creditor, in respect of his judgment, the character and right of an incumbrancer by contract on any interest which the debtor may have in real estate. The object of the enactment was to enable the judgment creditor to attach and realize, by a suit in equity, such estates and interests of his debtor as could not be extended under a writ of elegit. It gives a new right to the judgment creditor to be prosecuted by a new suit in a Court of equity; but the charge and the right of suit to enforce it cannot be called, with any propriety of language, part of the powers of the Court by which the judgment or decree was made for enforcing such decree or judgment. If it be so called, then a suit in equity, to have the benefit of a charge created by a judgment of the Court of Queen's Bench, becomes part of the process, jurisdiction and authority of the last-mentioned Court. Nor can the new suit that may be brought on the decree be denominated part of the power, jurisdiction or authority of the Court of equity for enforcing that decree, which words are the appropriate language for denoting the means which the Court has of giving effect to its decree, namely, process of execution of various kinds.

By the 25th section of the Court of Probate Act, 20 & 21 Vict. c. 71, it is enacted that "the Court of Probate shall have the like powers, jurisdiction and authority for enforcing all orders, decrees and judgments made or given by that Court as are by law vested in the High Court of Chancery." The question in this case is, whether under and by virtue of this 25th section a judgment or order of the Court of Probate for the payment of money is attended with the

same rights and consequences of creating a charge upon the interest in land of the person against whom it is made, as are by the statute of the 1 & 2 Vict. c. 110. given and attach to judgments and decrees of the superior Courts of law and equity at Westminster existing at the time of the passing of that statute. I am of opinion, for the reasons already stated, that the charge and right of suit in equity given by that statute to the persons who obtain decrees of the High Court of Chancery cannot in any sense be treated as part of the powers, jurisdiction and authority of the Court of Chancery for enforcing its decrees; and that these words in the 25th section of the Court of Probate Act denote only the ordinary powers of enforcing decrees by writs of execution and process in contempt; and therefore I affirm the order which has been made, and dismiss the appeal with

costs.

LORDS JUSTICES. Nov. 14.

Ex parte HARDING, in re

THE PLUMSTEAD, WOOL-
WICH AND CHARLTON
WATER COMPANY.

Joint-Stock Company -Winding-up Company registered as a Company with Limited Liability-Official ManagerCosts.

A company was, in 1852, registered as one of unlimited liability, under the act, 7 & 8 Vict. c. 110. After the passing of the act of 1856 (19 & 20 Vict. c. 47.) it was reregistered as one of limited liability. In 1858 one of the Vice Chancellors made an order for winding up the company, and appointed Mr. R. P. H. official manager, who proceeded in the winding-up. On appeal to the Lords Justices, their Lordships discharged the order for winding-up, and subsequently one of the Commissioners in Bankruptcy made an order for winding up, and appointed an official liquidator. R. P. H. paid over all the assets in his hands to such official liquidator, and presented a petition to the Commissioner for payment of his costs and expenses as official manager out of the estate of the company, but the petition was dismissed on the ground that there was no jurisdiction to make the order; and, on NEW SERIES, 32.-CHANC.

appeal, the order of the Commissioner was affirmed, but without costs.

This was an appeal, presented by Mr. Robert Palmer Harding, against an order made by Mr. Commissioner Goulburn. The petitioner had been appointed official manager of the above-named company by Vice Chancellor Kindersley, and before the Commissioner he prayed that he might be paid out of the estate of the company his costs and expenses incurred by him as official manager. The facts of the case, which are a little complicated, were stated in the petition as follows: that the company was, on the 14th of October 1852, registered as a joint-stock company under the provisions of the act, 7 & 8 Vict. c. 110; that upon the passing of the Joint-Stock Companies Act, 1856, the 19 & 20 Vict. c. 47, it was re-registered on the 5th of November 1856 as a company with limited liability, and continued to carry on its business with no other alteration until the month of November 1858; that by the 60th section of the act, 19 & 20 Vict. c. 47, "the Court" is defined to mean for the purpose of winding up companies, the Court of Bankruptcy in the case of limited companies and the Court of Chancery in the case of unlimited companies; that Vice Chancellor Kindersley considering that the Court of Chancery had jurisdiction so to order, although the company was registered as a limited company, directed on the 19th of November 1858 that the company should be wound up in Chancery, and accordingly, on the 2nd of December following, he appointed Mr. Robert Palmer Harding official manager; that Mr. Harding, in conducting the winding-up, obtained the sanction of the Court to file a bill against Mr. Lewis Davis, and on the 3rd of February 1860 he exhibited his bill against that gentleman in the Court of the Master of the Rolls; that on the hearing of the cause an objection was taken, on behalf of the defendant, that the order of Vice Chancellor Kindersley of the 19th of November 1858 for the winding up the company was null and void, as the Court of Chancery had no jurisdiction in the case of an unlimited company by reason of section 60. of the act, 19 & 20 Vict. c. 47, and that therefore the appointment of Mr. Harding as official

U

manager was also void, and that he had no interest in the matter sufficient to maintain his suit; that the Master of the Rolls considered the objection valid, and thereupon dismissed the bill, without costs; that on appeal to the Lords Justices, which was heard with an application by some of the contributories of the company to discharge the order for winding-up of the 19th of November 1858, their Lordships affirmed the order of the Master of the Rolls, and discharged the order of the Vice Chancellor (1); that thereupon a petition to wind up the company was presented in bankruptcy, and an order was made accordingly, and an official liquidator was appointed, to whom Mr. Harding handed over all the assets in his hands, making no deduction therefrom for the costs and expenses in conducting the winding-up; that soon afterwards he presented a petition to the Court of Bankruptcy for payment out of the estate of the company (which was ample) of all his costs of the winding-up under the order of the 19th of November 1858, the costs of the suit against Mr. Davis and his (the petitioner's) own fees, amounting altogether to the sum of 600l.; that the petition was heard before Mr. Commissioner Goulburn, who, considering that he had no jurisdiction to make the order, dismissed it. Under this state of circumstances, Mr. Harding appealed.

The appeal was commenced in the month of June 1862; and on a question of jurisdiction being raised, their Lordships ordered it to stand over until after the passing of the act of 1862, then in its passage through parliament (2), and the appeal now came on for hearing.

Mr. Glasse and Mr. Roxburgh, for the appellant, argued that the Court had jurisdiction to order payment of all costs properly incurred, as was plainly manifest from the fair purport of the following enact

ments:

(1) See 2 De Gex, F. & J. 20; s. c. 29 Law J. Rep. (N.S.) Chanc. 741.

(2) It was arranged that a clause should be inserted, if thought desirable, to give the Court jurisdiction in this and such like cases. A clause was inserted in the bill by the Solicitor General, which passed the House of Commons, but was rejected in the House of Lords-The Companies Act, 1862, (25 & 26 Vict. c. 89).

one.

Sections 59, 83. and 103. of the Winding-up Act, 1848, 11 & 12 Vict.

c. 45.

Sections 74, 86. and 87. of the Joint-
Stock Companies Act, 1856, 19 & 20
Vict. c. 47.

Section 11. of the Joint-Stock Banking
Companies Act, 1858, 21 & 22 Vict.
c. 60.

Mr. Daniel and Mr. Jessel, for the official liquidator, opposed the petition, though they admitted that the claim of Mr. Harding was perfectly just. He had parted with the money in his hands, and the Court now had no jurisdiction to make the order asked for, so that his case was a most unfortunate The Court of Chancery, under the events that had happened, never had authority to order the winding up of the company, and consequently the appointment of Mr. Harding to the office of official manager was wholly void. All the proceedings of that gentleman in the performance of that office were therefore equally void, and any charge upon the estate for those proceedings could not be made to the detriment of creditors who were the only legitimate claimants thereupon. His position was simply that of a trustee whose supposed cestui que trust had been proved to have no interest or title whatever in or to the trust estate.

Mr. Glasse was heard in reply.

LORD JUSTICE Knight BruCE.-In my opinion it would have been desirable if the legislature had interfered in the matter, but it has not thought fit to do so. This Court has made a decision affirming a decision of his Honour the Master of the Rolls, and that decision must be assumed to be correct. Mr. Harding has throughout these proceedings manifested the best intentions, but he has acted without the requisite legal authority. There has been a mistake of the law; and as that is so, and as the present question is one of Mr. Harding's remuneration and the payment to him of the costs of a suit and of the other proceedings taken whilst he was acting in the character of official manager, I feel, and so does my learned Brother, that we are unable to interfere to do that which, upon all other grounds, we should be most desirous to do.

LORD JUSTICE TURNER.-I regret much that I am compelled to come to the same conclusion, but I think it is quite impossible that this Court can accede to the prayer of this petition. It is deeply to be regretted that Mr. Harding has been employed, and most diligently employed, under an order of this Court which, as it turns out, this Court had no jurisdiction to make; for the judgment of this Court has most clearly established that there was no jurisdiction to make the winding-up order in November 1858. It is impossible to construe the Winding-up Acts in favour of a person who is called the "official manager," but who in truth never did fill that character at all. I repeat that it is with great regret that I can find no ground whatever for granting the prayer of this petition.

This suit was instituted, by the Rev. Charles Baxter Sweet, clerk, the owner of the advowson of a rectory, against a purchaser, to enforce the specific performance of a contract for the sale of the advowson for 5,500l.

The cause came on for hearing in March 1862, when it was declared that the plaintiff was entitled to a decree for specific performance of the contract (1); and the defendant was directed to pay the purchasemoney upon the execution of the conveyance by the plaintiff.

In consequence of the death of Charles B. Sweet, the suit was revived by an order

(1) Vide 31 Law J. Rep. (N.s.) Chanc. 817.

of revivor of the 16th of April 1862, by the present plaintiffs, George Sweet and William Foot Sweet.

The conveyance had been duly executed by the conveying parties, but the defendant had failed to pay the purchase-money, and on the 9th of August 1862 an order was made for payment of the purchase-money by the defendant on the 18th of August 1862, or within seven days after service of the order upon him. The purchase-money being still unpaid, an attachment was, on the 22nd of August 1862, issued against the defendant, who, it was stated, had gone to Ireland to avoid process.

Mr. Karslake, on behalf of the plaintiffs, moved for an order to rescind the contract and to stay all proceedings in the cause, and for payment of the costs of this application by the defendant. He referred to Foligno v. Martin (2).

STUART, V.C. said, that on the authority of that case, the order asked for might be made.

Mr. Karslake asked that the plaintiffs might have liberty to apply to assess the damages which they had incurred in consequence of the defendant's breach of the contract.

STUART, V.C. said the plaintiffs might have an order to this effect also.

The order made was as follows: "Upon motion this day made, &c., this Court doth order that the contract mentioned in the pleadings of the firstmentioned cause, and set forth in the third, sixth and seventh paragraphs to the plaintiff's bill therein, be rescinded, and that all further proceedings in this cause be stayed, except as to any application which may be made to this Court to award and assess the damages which the plaintiffs George Sweet and William Foot Sweet, clerk, have sustained by reason or in consequence of the breach of the said contract; and it is ordered that the defendant Robert Fitzgerald Meredith do pay unto the plaintiffs George Sweet and William Foot Sweet their costs of this application, to be taxed by the taxing Master.

(2) 16 Beav. 586; s. c. 22 Law J. Rep. (N.s.) Chane. 502.