By the 9 Geo. 4. c. 49. s. 15, it is enacted, "that all drafts for the payment of any sum to the bearer on demand, and drawn in any part of Great Britain on any banker, who shall transact business within fifteen miles of the place where such drafts shall be issued shall be exempted from duty; provided the place where such drafts shall be issued shall be specified therein." Mr. Wigram and Mr. Freeling, for the plaintiff, contended, first, that as the act required drafts to be stamped, unless the place where the drafts were issued appeared on the face of the draft, such places being within a certain specified distance from the place of payment, and as no place was stated in this draft, and it was not stamped, it did not amount to payment of the purchase-money. Ruff v. Webb, 1 Esp. 129. Wilson v. Vysar, 4 Taunt. 288. Waters v. Brogden, 1 You. & Jer. 457. Secondly, that as the plaintiff had exercised due diligence in trying to procure payment of the cheque, and as there was no laches on his part, he had not made the cheque his own, and the loss ought to fall on the defendants. Darbishire v. Parker, 6 East, 3. s. c. 2 Law J. Rep. (N.s.) K.B. 138. Moule v. Brown, 4 Bing. N.C. 266; s. c. 7 Law J. Rep. (N.S.) C.P. 111. Mr. Russell and Mr. Speed, contrà, contended, first, that the place was inserted in the draft, and secondly, that due diligence had not been exercised by the plaintiff. Had he taken the cheque and presented it himself the next day, the money would have been paid. He ought not to have employed a banker at any distance from Lutterworth, or if he did employ a banker at a distance, care ought to have been taken that they should have acted in the same manner, and with the same diligence as a banker at Lutterworth would. A bank at Lutterworth would have had the cheque presented on the 21st, or the morning of the 22nd, and the money would have been paid. The Rugby Bank ought to have presented it on the 21st, or at latest on the morning of the 22nd, and then to have presented it, not by sending it by the post, but in such a manner that the money would be received. The cheque might have been paid within less than two days after it was given, and it is the plaintiff's fault that it was not paid. KNIGHT BRUCE, V.C.-I think the plaintiff is right on both points. The Stamp Act requires that on order to exempt a cheque from a stamp, the place where the cheque is issued or drawn shall be stated on it. It is impossible to say that the word Lutterworth placed on this cheque, under the name of the bankers, for another purpose, is sufficient. Here it is used to describe the situation of the bank, and not the place where the cheque was drawn. This then was a void cheque, an insufficient security, and therefore no payment. Supposing this objection had not been made, the next question is, whether a reasonable diligence has been used in presenting the cheque. It was delivered in the place where it was drawn, and where it was made payable, but after the office hours of the bank where it was payable. The person who received the cheque was a country gentleman or farmer, who lived two or three miles out of the town. He employed as his bankers certain bankers at Rugby, to whom he sent the cheque that very evening. At Rugby it was received after office hours by one of the partners, who deposited it in his house for safe custody, and in the morning it was paid into the bank in the ordinary way. I am of opinion that the receiver of the cheque was entitled to employ a banker for the purpose, and that he was not obliged to keep it in his own custody, where it would be exposed to hazard. I think also that the distance of the bankers is not unreasonable. The bankers then must have a reasonable time to present the cheque. The cheque is put into the post directed to the bankers at Lutterworth. This mode of presentation under the circumstances is not unreasonable. The Lutterworth Bank stopped before two o'clock, the ordinary banking hours extending to four. I am of opinion that the Rugby bankers had, under the circumstances, the whole of the banking hours of the day for their and the plaintiffs' protection. On the whole, I think, that reasonable diligence has been exercised, that the employment of the Rugby bankers as intermediate agents was justifiable, and that the Rugby bank itself has acted with due diligence in transmitting the cheque. Therefore, I must hold that the plaintiff's debt is due, and that there is a lien on the estate sold for the amount. K. BRUCE, V.C. Jan. 25; to Feb. 14, 21. WHITMARSH v. ROBERT SON. Settlement-Power of Advancement. Trustees were, by the settlement made on the marriage of Mr. and Mrs. F, directed to stand possessed of a sum of stock on trust pay the dividends for the separate use of Mrs. F, during the joint lives of Mr. and Mrs. F, and then to the survivor of Mr. and Mrs. F, for his or her life, and then to divide the stock between the children of the marriage. There was in the settlement a power authorizing the trustees, during the lives of Mr. and Mrs. F, or in the lifetime of the survivor of them, with their, his, or her consent, to raise any part of the children's shares for their advancement. There were several children of the marriage. Mr. F. died; Mrs. F. married Mr. M; Mr. and Mrs. M. absolutely assigned the dividends to accrue during the life of Mrs. M, to W. Mrs. M. afterwards, by deed, directed the trustees to raise portions for some of the children of her first marriage, and the trustees were willing to raise them accordingly :—Held, that the second marriage of Mrs. M, and the deed of assignment, did not interfere with the right of Mrs. M. to exercise her power of consent, and the portions were directed to be raised accordingly. By the marriage settlement of Mr. Leslie Finlayson and Miss Ann Maria Penneck, dated in November 1820, it was declared that the trustees of the settlement should stand possessed of 1,700l. 3 per cent. Bank annuities, on trust, to pay the dividends to A. M. Penneck, for her separate use, during the joint lives of L. Finlayson and A. M. Penneck, and after the decease of such one of them as should first die, to pay the dividends to the survivor, during the life of the survivor, and after the decease of the sur vivor to divide the principal equally among the children of the marriage, the shares to vest in them at twenty-one or marriage, and to be paid to them at the death of the survivor of L. Finlayson and A. M. Penneck. The settlement contained the following power of advancement:-" Provided always, &c., that it shall be lawful for the said trustees at any time or times after the decease of the survivor of them, the said L. Finlayson and A. M. Penneck, or in the lifetime of them or the survivor of them, with their, his, or her consent, in writing, to levy and raise any part or parts of the portions intended to be hereby provided for such child or children as aforesaid, not exceeding in the whole for any one such child one moiety or equal half part of his or her then expectant portion of or in the said sum of 1,7001. 3 per cent., notwithstanding the same shall not then have become vested or payable, and to apply the money so to be raised for the preferment, advancement, or benefit of such child or children, in such manner as the said trustees shall in their discretion think fit." The marriage took effect. Mr. L. Finlayson died in the early part of 1837. There were seven children of the marriage. Soon after the death of Mr. L. Finlayson Mrs. Finlayson married Mr. Mileham, but no settlement was made on the occasion of this marriage. By an indenture dated in April 1837, Mr. and Mrs. Mileham, in consideration of the sum of 550l. paid to Mr. Mileham, absolutely assigned to Thomas Whitmarsh all the dividends of the 1,700l. Bank annuities to arise during the life of Mrs. Mileham. Notice was given to the trustees of the assignment, but they declined to pay the dividends to Mr. Whitmarsh. In August 1840 Mr. Whitmarsh filed a bill against the trustees, Mr. and Mrs. Mileham, and the children of Mrs. Mileham, praying that the trustees might be directed to pay to him, Mr. Whitmarsh, the dividends of the stock to arise during the life of Mrs. Mileham. The cause came on to be heard on the 5th of July 1842, before Vice Chancellor Knight Bruce. The trustees then stated that they had received a letter from Mrs. Mileham, requesting them to make advances to the children out of the trust fund, and submitted two questions to the Court-first, whether the assignment affected the dividends to accrue after the death of Mr. Mileham, in case Mrs. Mileham survived him; and secondly, whether the power of advancement was affected by the marriage of Mr. and Mrs. Mileham. His Honour then thought he could pay no attention to the letter, and that the question of advancement, which he thought open to considerable argument, was not properly raised. The case is reported as to this point in 1 You. & Col. C.C. 715; s. c. 11 Law J. Rep. (N.s.) Chanc. 404. By the decree made in the cause, after providing for the costs up to the hearing, the trustees were ordered to pay the dividends of the stock to Mr. Whitmarsh, during the joint lives of Mr. Mileham and his wife, or until the further order of the Court; without prejudice to the right of the plaintiff to the dividends after the death of Mr. Mileham, if he should die in the lifetime of his wife, and without prejudice to any question that might arise as to the power contained in the settlement, or as to any execution or exercise of the said power of advancement, and without prejudice to any bill in equity which the defendants Mr. and Mrs. Mileham might file; and it was ordered that the cause should in all other respects stand over, with liberty to the parties to apply to the Court as they might be advised, and the consideration of subsequent costs was reserved. By a deed poll, dated the 8th of January 1845, executed by Mrs. Mileham, after reciting that there were seven children of the marriage of Mr. and Mrs. Finlayson, three of whom were daughters, of the respective ages of twenty-three years, twenty-one years and sixteen years, and four of them sons, of whom the eldest was twenty; that the three above-named daughters were about to establish a school for the education of children, and the son about to commence business as a corn-factor, it was witnessed that Mrs. Mileham, pursuant to the power contained in the settlement, did consent, direct, appoint and request the trustees to raise the sum of 4801. sterling, or such other less sum as they should think proper, and apply the same for the benefit of the four children, that is, to apply three-fourths of that sum to enable the daughters to establish a school, and for that purpose to lay it out in furni ture and goodwill or otherwise, as should be advisable, and to apply the one-fourth to enable the son to set up business as a cornfactor. On the 25th of January these three daughters and the son presented a petition stating the deed poll, and praying that the trustees might be directed or empowered to raise the sum of 480l., and apply the same as pointed out in the deed poll or otherwise as they might direct. Mr. Shapter and Mr. Hanson, for the petition. The property remains in the wife. The husband has the right during their joint lives to take the accruing interest of the fund, subject, however, to the power over the fund existing at the time of the marriage, and any equitable rights the wife may have in it. Thompson v. Butler, Mo. 522. 5 Law J. Rep. (N.s.) Chanc. 138. There is a difference between an assignment by operation of law and an assignment by deed. The former passes the right to the assignee precisely in the same plight and condition as it was in the hands of the person through whom he acquired it-Mitford v. Mitford (1). A married woman may execute a power: there is no objection on that ground. The execution, however, of a married woman, professing to assign an interest not settled to her separate use, is inoperative. There is a difference between this case and the case of Noel v. Lord Henley (2). There a person was not allowed to derogate from his own deed of assignment. however, there was no deed of assignment of the wife, while she had power to make such a deed, from which she can derogate. It has been repeatedly decided that a husband's assignee cannot be in a better situation than the husband. Here, Mr. Russell and Mr. Stinton, for the persons representing the plaintiff. The marriage had the same operation as an assignment for valuable consideration. It has been decided, that if a person having a life interest in a trust fund, and a power to appoint the trust fund by way of advancement for his children in his lifetime, assigns (1) 9 Ves. 87, 100. (2) M'Cl. & You. 302. his life interest, his power is thereby extinguished-Noel v. Lord Henley. Mrs. Mileham is therefore now precluded from exercising the power. KNIGHT BRUCE, V.C.-I understand that no instrument whatever was executed by Mrs. Mileham between the marriage settlement upon her first marriage and her second marriage, and, as under her marriage settlement she would not take her life interest after her first husband's death for her separate use, nothing occurred to make it an interest for her separate use. When she married, therefore, it was liable to all the incidents to which a life interest in personalty is liable which belongs to a woman not for her separate use who marries without a settlement. But as this life interest was derived under a particular instrument, it was, of course, liable to all those provisions contained in that instrument to which properly it could be considered liable. Now what would have been the effect upon the execution of this power, if Mrs. Mileham, when a widow, had sold or encumbered her life interest, I desire to be particularly understood as not giving any opinion whatever, or any intimation of opinion. In point of fact, the sale is made by her second husband and herself, so far as she could join in the act after the marriage. The first question then is, if this sale had not been made, and if the second husband and herself had done no act, could she have exercised this power? that is, could she have effectually consented to the trustees acting under the advancement clause, without, and against, the consent of her second husband? I am of opinion that she could; that this power of giving consent was a power with which marriage did not interfere; that she remained, immediately after the second marriage, at full liberty (however it might prejudice that life interest to which her husband was entitled, or partly entitled at least, in her right) and entitled effectually to exercise that power of consent; and that the trustees were authorized to give effect to that consent without, and against, the consent of her husband. that is so, the question is, whether a sale by the husband of his life interest could make any difference. I am of opinion that it could not, and that a purchaser from him If stood not in a better situation than he would have done if that sale had not been made. The next question is, whether her concurrence in that instrument made any difference. Generally speaking, a married woman cannot execute a deed; she can do no act of this description except in respect of an estate settled to her separate use, or in the exercise of a power given to her. Separate use here is out of the question; there is no such thing. A power has been given to her, but the existence of a power only enables her to do an act under the power conformable to the power; it does not enable her to deal with the subject of the power in any manner not in conformity with the power. Dealing with the subject of the power in a manner not conformable with the power, she deals with all the disabilities and all the consequences which belong to the act of a married woman; and, as this sale to Mr. Whitmarsh was an act not under the power, and not in conformity with the power, I am of opinion the act is in no sense to be considered her act, and is a mere nullity. The sale, therefore, leaves her rights unaffected, and I am of opinion that her consent is as effectual as it would have been if she had never married, and as if no sale had been made. As the matter stands, however, it may be difficult now to give effect to this exercise of the power in a suit in which the only plaintiff is the purchaser of a life interest. I am of opinion, however, that it is not to depend upon his option merely, whether such a suit shall or shall not be confined in its operation to the administration of the trust as far as it regards the life interest. The decree hitherto made has been confined to his life interest, but the decree is not exhausted, for there is a specific provision in the decree that the hearing of the case in all other respects shall stand over, with liberty for all parties to apply. It will be, therefore, a legitimate course that this cause shall now be set down to be further heard; it will be a legitimate course against the consent of the plaintiff, and with the consent of the defendant, to administer the trusts generally; and in administering the trusts generally, it will be the duty of the Court, if it shall find a consent by Mrs. Mileham regularly found, upon which the trustees consider it consistent with their duty to act, to give effect to that consent and to that willingness of the trustees to do an act consequent upon that consent. That, however, cannot be done without a judicial ascertainment of the number of children and of the persons entitled to participate. Therefore, with this expression of my opinion let the petition stand over to a day to be named; upon that same day let the cause stand in the paper to be further heard upon the subject of the decree reserved, with liberty at that time to produce an affidavit as to the number and ages of the children. The cause was set down for further hearing on the 14th of February. It appeared then that the plaintiff, Mr. Whitmarsh, had assigned his interest absolutely to his son W. H. Whitmarsh. W. H. Whitmarsh had mortgaged this interest to Miss Jones, and on a petition of the mortgagee and W. H. Whitmarsh, the dividends were ordered to be paid to Miss Jones. W. H. Whitmarsh afterwards became bankrupt. No supplemental bill had been filed, but W. H. Whitmarsh's assignees and mortgagee appeared at the hearing, but not the plaintiff, who had not been served. His Honour thought that to obviate possible inconvenience at some future time, and to make the decree correct, the plaintiff, Mr. T. Whitmarsh, ought to be served. The plaintiff was served, and the cause came on for further hearing on the 21st of February. The number and ages of the children were verified by affidavit, and, the trustees consenting, an order was made for raising the sum according to the prayer of the petition. MAN. K. BRUCE, V.C. MANNINGFOrd v. toleFeb. 15. Baron and Feme-Settlement-Trust. Mr. C. married Miss F, who was a ward of court. After Mrs. C. had attained twenty-one a settlement of her fortune was made, and thereby, after reciting that it had been proposed that 2,000l., part of her fortune, should be paid to Mr. C. to enable him to buy a house and furniture, and that the proposal had been sanctioned by the Court, Mr. C. covenanted with the trustees of the settlement that he would buy a house and furniture and convey and assign the same to them on certain trusts, for the benefit of himself, his wife and children. The sum of 2,000l. was paid to Mr. C. in the beginning of August, and with this sum he opened an account with the bank of Messrs. S. On the 25th of August a house was conveyed to uses to bar dower in favour of Mr. C, and the vendor was paid by a cheque on the bank. Mr. C. afterwards deposited the title deeds of the house with the bank, as a security for present and future advances. The bank had no notice of the above circumstances or of there being any trust:Held, that the house was bound by the trusts of the settlement, and that these trusts had priority over those declared by Mr. C. in favour of the bank. In the early part of the year 1831, Mr. Cock, who resided at Bristol, and had been brought up as a cabinet-maker, married. Miss Foxon, who was a ward of court, and entitled to a considerable sum standing to the credit of a cause entitled Foxon v. Foxon. In June 1831, Mrs. Cock being then of age, a settlement was made of her property. The settlement recited that it had been proposed that the sum of 2,000l., part of the above-mentioned sum of money, the property of Mrs. Cock, should be paid to Mr. Cock to enable him to purchase a proper and suitable house in Bristol for himself and his wife to reside in, and to buy furniture for such house, and that such house and furniture should be accordingly purchased by him and conveyed and assigned to trustees, to be approved of by the Court, on the trusts therein mentioned, for the benefit of Mr. Cock, his wife and children. The settlement then recited that Mr. Clark and Mr. Smart had been approved of by the Court to be trustees of Mrs. Cock's settlement, and that the above-mentioned proposal had been sanctioned by the Court. The settlement then contained a covenant by Mr. Cock with Clark and Smart that he would purchase such house and furniture accordingly, and convey and assign the same to them on the above-mentioned trusts. By an order made in the suit of Foxon v. Foxon it was ordered that the sum of 2,000l. should be paid to Mr. Cock for the pur |