V. C. KINDERSLEY'S COURT. The power is nothing but a power-it is not an estate; the reversion is not settled to her separate use-it is not settled to her use at all. And it is precisely the same thing if the power given to the married woman by such a devise is an equitable power. Nor can it make the slightest difference in the nature of the power, whether it be created by marriage-settlement or by any other instrument. In every case a power of appointment vested in a married woman, however or wherever created, is a power only; and it is not an estate or property vested in the donee of the power, and cannot be property settled to her separate use. True it is she may dispose of it without the intervention of her husband, but only by adopting the particular method prescribed by the power; she cannot (as she may do with respect to property settled to her separate use) dispose of it by every or any instrument or mode of conveyance or disposition, as freely as a feme sole could do with her own property; she is strictly confined to the mode and formalities prescribed by the power; and when she exercises the power in favour of any given individual, she is not giving him her own property, but only nominating him as the person who is to take under the instrument creating the power; and her capacity to exercise the power independently of her husband is recognised and maintained by a court of equity as well as by a court of law-not upon any principle or notion of her being regarded as a feme sole, for, if it were so, a court of law could not recognise it; but upon the principle that a married woman is held by all courts, whether of law or equity, to be capable of exercising a power of appointment as a feme sole or a man. Now, for the reasons I have mentioned, it appears to me that it is a mistake to suppose that because a married woman having a power of appointment may exercise that power independently of her husband, and without his intervention or interference, that therefore the property which is subject to that power is property settled to her separate use, although in the view of a court of equity she is a feme sole in respect of property settled to her separate use, and may (as a feme sole might do) contract debts payable out of such property; she cannot contract debts-I mean, in the ordinary way, for I shall have to advert to an exception presently-she cannot, in the ordinary way, that is, by her mere contract, incur a debt payable out of property over which she had a mere power of appointment, because she cannot contract a debt payable out of her general assets or any property not settled to her separate use. But, notwithstanding the incapacity of a married woman to incur a debt merely by her contract, yet it is well established that a married woman is capable of committing a fraud, and is liable to be visited with the consequences of the commission of such fraud. The case of Savage v. Foster, 9 Moo. and several other cases, have clearly established that; and the principle applies not only to the acts of a married woman who is incapable of affecting herself in the ordinary way by contract, but applies also to the case of an infant. It is not necessary for me to consider the case of an infant; I take the case of a married woman. In the case of Savage v. Foster, a married woman was entitled to an estate in fee simple expectant on the death of her mother. Her halfsister was about to be married. The married woman entitled to this remainder or reversion was very anxious to promote that marriage, and, in order to procure the marriage to be brought about, induced her mother to represent herself as the owner in fee of the estate, though she was only tenant for life-the married woman, who was entitled to the remainder, concealing the fact of her own title. Accordingly the marriage of the sister was brought about by the mother conveying, as if she were the owner in fee, the estate to the intended husband. Afterwards the married woman who had thus induced her mother to execute that conveyance became a widow, and, on a bill filed by the husband of the sister, she was compelled by this court to convey the estate. It was held to be a fraud in her, and the court made her set right that fraud-that is, visited the effect of that fraud on this property, which was her own fee-simple estate on the death of her mother. Several other cases were eited which it is not necessary to go through, in which the principle is clearly recognised, that a married woman is not only capable of committing a fraud, but that her property is liable to be visited with the consequences of that fraud. Now, I think that principle applies to the case of Mr. Gates. When the case was first before me, this point hardly received any consideration; both the counsel and the court were so much occupied with the general question, that it hardly received any attention; and, without sufficient consideration, on the former occasion I stated shortly I did not see anything in Mr. Gates's case to distinguish it from the other creditors. But a reconsideration of the question brings me to the conclusion that Mr. Gates stands in the position of a person who has been defrauded, who has advanced 4500. under a gross fraud committed on him by the married woman, Lady Dunboyne; for the matter stands thus:-Lady Dunboyne, being the widow of Mr. Vaughan, contracted a marriage with Lord Dunboyne, which by the Master's report is found to have been a valid marriage. For reasons which are not very apparent, and which it is not necessary to enter into, she concealed from every body, among the rest concealed from Mr. what is the effect of a single woman owing a debt, Gates, the fact that she was married, she representing and then marrying? So long as the coverture lasts herself still to be Mrs. Vaughan, the widow of Mr. the debt may be recovered from the husband; but as Vaughan. She represented herself to be what, if she soon as the coverture ceases, whether the coverture had been still a widow, she would have been, the ceases by the death of the wife or by the death of the owner of, and able to deal with as a feme sole, certain real husband, from that moment it ceases to be the debt estate which was limited to her in fee, subject to her of the husband, and remains, as before, the debt of general power of appointment by will. She borrowed the wife, payable of course out of her general assets, 45001. from Mr. Gates, and executed what purported Suppose that Lady Dunboyne had survived her husto be a mortgage to secure to him that sum; she band, that debt of Mr. Waugh, which was her debt executed that mortgage, of course, in her name and before her marriage, would be debt recoverable perdescription of Mary Ann Vaughan, widow. After that sonally from her. If it was debt recoverable by an transaction, and about a year or two after the mar- action at law before the marriage, when the marriage riage with Lord Dunboyne, she went through another ceased it would be recoverable against her by an aeceremony of marriage with Lord Dunboyne, and that tion, and recoverable at her death against the execu second marriage was avowed and treated as if it were tors; and in the administration of her assets Mr. the only marriage; but it has been found by the Waugh would be entitled to be admitted as a creditor. Master, and that finding is not challenged, that the Mr. Waugh therefore stands in the situation of a first marriage was a valid marriage. It was, there- creditor of Lady Dunboyne, not by virtue of a debt fore, admitted by Mr. Gates's counsel that that deed that she contracted during the coverture, but a debt could not prevail as a mortgage. Now, suppose Lady that she contracted before the coverture, and which Dunboyne had survived Lord Dunboyne, could there remains a debt on the cesser of her coverture. Mr. have been the least doubt but, as against her, this Waugh's debt is payable out of her general assets; court would have given relief to Mr. Gates, and given and, as in the ordinary case of a man or of a fee him a charge on that very property which, by having sole, if the general assets are not sufficient to pay Mr. again become widow, Lady Dunboyne was the abso- Waugh's debt, then the appointed property will come lute owner of? I cannot entertain the smallest doubt in aid when you have exhausted all the general but that if, in that state of things, Lady Dunboyne, assets. I will now state my view with respect to the having become a second time a widow on the death of two cases which were cited, and which I have not yet Lord Dunboyne, Mr. Gates had filed a bill against adverted to, viz. Stead v. Clay and Shipton v. Rawlings. her, this court would not only have made her liable I would first, however, observe that if a woman, b to pay the 45007. back to Mr. Gates, but would have fore her marriage, is an executrix or an administragiven him an equitable charge on that very property trix or a trustee, having trusts to execute or assets to which she had thus purported to mortgage to him- administer, and if she afterwards marries, and a not as giving effect to the instrument she had exe- devastavit or breach of trust is committed during cuted as a mortgage, but making it the foundation of coverture, the husband is primâ facie liable for that creating a charge which it would have enforced by devastavit; for it is assumed that, in the absence of compelling a legal mortgage. If that would be case in anything shown to the contrary, he was a party the event of Lady Dunboyne surviving Lord Dunto that devastavit-he is liable for it when the coverboyne, on which I confess, after fully considering it, ture ceases. Supposing the wife should survive the I do not entertain the smallest doubt, Lady husband, prima facie the liability of the husband Dunboyne not having become a widow, having ceases, unless he was himself actually a party to the died before Lord Dunboyne, but having died the devastavit. But, if the husband was no party to the owner of this very property, which she purported to devastavit, the wife's liability remains after the cesser mortgage to Mr. Gates, which property descends to her of the coverture. And in the case of Adair v. Škrt, heir, claiming merely as a volunteer through her-it a well-known case in Sch. & Lef. Lord Redesdale appears to me that not only is Mr. Gates entitled to went so far as to determine this-that, after the stand as a creditor of Lady Dunboyne against her coverture, the wife was liable for the devastarit, even assets generally, but that he is entitled to a specific though commenced by her husband during the covercharge in equity on the very property which was ture. But in Clough v Devon, the late V. C. of Engpurported to be mortgaged to him; that is, as I should land expressed some doubt whether Lord Redesdale a have given this effect to it against Lady Dunboyne if dictum was satisfactory, and whether the wife, after she had survived her husband, I ought to give this the cessation of the coverture, ought to be liable to a effect to it as against the heir of Lady Dunboyne, devastavit which was not her own aet, but the act of who merely claims through her by descent. It ap- her husband. But nobody ever doubted that, if the pears to me, therefore, that Mr. Gates is entitled to be wife committed the devastavit, she would be liable declared to have an equitable charge for his 4500l. as after the coverture ceased. Whether the husagainst the real estate, which purports to have been band would be liable or not is not material. made the subject of that mortgage. And if that pro- And so if the coverture ceases, not by the death of the perty should not be sufficient to satisfy his claim, he husband but by the death of the wife, the wife's prowould be entitled to stand as a creditor on her general perty would be liable. I mention this for the purpose assets; and of course, if a creditor on her general of explaining the grounds on which I consider Shipton assets then, if the general assets should not be suf- v. Rawlings to stand. Now Stead v. Clay was cited as ficient (about which, however, there is not the least an authority contradicting the general proposition. apprehension, I believe), then, as in the case of a that a married woman cannot by the contract incar feme sole or a man, the appointed property becomes an ordinary debt during her coverture, payable out of liable to supply any deficiency. If a man or a feme property over which she has a mere power of appoint sole had borrowed money and had died, what would ment. Now in that case the husband of the married be applicable first?-the general assets; and in de- woman, a person of the name of Liddiard, had become fault of general assets, or failing general assets, or in a bankrupt; and, being a bankrupt, he had withdrawn case of insufficency of general assets, then the ap- his furniture and some other property from his pointed property would be available. And so it creditors, sold it, transferred the proceeds to Rothappears to me the same principle would apply here. schild's house at Paris, and caused the money to be In short, consistently with the view I take, that pro-invested in French Rentes. He had afterwards transperty, whether real or personal, limited to the appoint- ferred the rentes into the name of his wife; and he ment of a married woman, is not her separate estate, and his wife had gone to Paris and resided there. 1: consistently with that, if her general assets are liable appears that a marriage-settlement which had bee to pay any obligation of hers, then, if the general made the father of the wife, a sum of 15001. Cons assets fail, the property which she has appointed is stood limited, so that after a life-estate in Mrs. Lidliable, not because it is limited to her separate use, diard she had a power of appointment over the 15 but because, her general assets being liable, if the by deed or will, and in default of appointment it was assets fail the property appointed becomes liable, as limited to Mrs. Liddiard, her executors and adminis it would in the case of a feme sole or a man; and this trators. Besides that property there were some Long view preserves what appears to me to be the principle Annuities, 591 a year, and 1000. Reduced Stock, and justice of the whole doctrine, on which in any which under the marriage-settlement of Mr and Mrs. case you apply property that has been appointed Liddiard were also limited in reversion to the appointunder a power. You cannot apply it until you have ment of Mrs. Liddiard. Mrs. Liddiard made a wi exhausted all the general assets of the appointor. by which, as it was alleged, she had exercised her You do not take the property, which was never the power as to the latter property, but not exercised appointor's at all, and which he has under a power the power as to the 15007. Consols. under the father's appointed to strangers-you never take that pro- settlement. If she had not exercised the power, as it perty to pay the debt, until you have taken his own was alleged she had not, the property became hers; assets. It may be considered somewhat of a stretch if the husband survived her, it became his by his to apply it at all in payment of the debts of the donee marital right; but, he being an uncertificated barkof the power; but that doctrine is well established, rupt, it vested in the assignee for the benefit of the and the same doctrine applies to the case of a married creditors. The bill was filed by the assignee of the woman, not because it is property settled to her sepa- husband against Susannah Clay and other persons rate use-not because, as in the case of a man so in claiming under the wife's will, alleging that there the case of a married woman. On failure of general was an appointment executed as to the funds under assets which are liable, then the appointed property is the marriage-settlement-that is, the 1000l. Redac liable also. There is one other case-the case of Mr. and the Long Annuities; but no appointment of the Waugh. His case stands on a totally different prin- 1500l. Consols. ; and the claim made by the bill was ciple from that of Mr. Gates; but it stands on this, that the 15001. Consols. belonged to the assignes a principle, if anything, still more clear; for, as I now in right of the bankrupt, who was entitled to it understand (which I was not aware of on the first right of his wife as in default of appointment. The occasion), Mr. Waugh was a creditor of Lady Dun- case came before Sir Anthony Hart upon a motion to boyne before her marriage with Lord Dunboyne. Now I restrain Susannah Clay, who was appointed the exe V. C. KINDERSLEY'S COURT. catrix under the wife's will, to restrain her from taking these funds over to France and disposing of them. Sir Anthony Hart took this view. He restrained the transfer of the 1500. stock, because, according to the representations, that actually belonged to the assignee of the bankrupt; but he refused even the interim injunction as to that which was appointed. Now, stopping there, what does that show? It shows in the broadest way possible, that, in the view of a most eminent and experienced judge, one thoroughly versed in the principles of equity, a married woman cannot by any act of hers during the coverture contract a debt affecting the property over which she has a mere power of appointment; and that there is no ground for the notion of its being settled to her separate use, because if it was, of course it would be liable to her debts and obligations. As far as I can make out, upon examining the record and the amendments made, the case, as presented to Sir Anthony Hart, differed from what was presented afterwards to Lord Lyndhurst on appeal. It either had not presented to him as it turned out to be when it came before Lord Lyndhurst, or he did not sufficiently consider that it was not the case of a married woman incurring a debt by her mere contract, but the case of a married woman who was a party to a fraud. The case came before Lord Lyndhurst; and then it appeared that Mrs. Liddiard had in fact appointed both the 1500l. under the one settlement, and the other funds under the other settlement. Sir Anthony Hart, if he had known that she had appointed both, would doubtless have refused the injunction at all. Lord Lyndhurst granted the injunction as to all. Why, Lord Lyndhurst does not in his judgment allude to the question as to the propriety of a married woman to contract debts, nor to the question whether property over which she had a power of appointment is property settled to her separate use, but merely says that there is good reason to suppose that the French Rentes which had been transferred to the wife, and which she had transferred to her sister, were the bankrupt's property, that is, the property of the bankrupt's creditors, the abstraction of which was a fraud, to which fraud the wife was a party; and therefore, without deciding any right, he would not allow the property to be taken away by the appointee of the wife, till the question as to the right of the parties should be decided on the hearing of the cause. Now that case does not in the smallest degree establish the proposition that property which is liable to a married woman's appointment under a power, is property settled to her separate use; nor the proposition that such property is liable to pay any debts which she may have purposed to have contracted under, or incurred by her mere contract during coverture. Now take the case of Shipton v. Rawlings. That case, as altimately decided by Sir John Stuart, is not, I beleve, reported anywhere; but it is reported on an interlocutory order in the 41st Hare. In that case a widow, under her first husband's will, was entitled for her life to the income of certain leasehold property, held under a renewable lease from an ecclesiastical body, and which, subject to her life-interest, was bequeathed to certain persons. The widow had also a power of appointment over the reversion of his residuary property. She was one of the trustees and executors ander his will; and a trust was imposed upon the lifeinterest which she had in the leasehold property, to set apart a certain sum annually, in order to provide a fund to pay for the fines or renewals of the leases of this property. The widow married a second husband; and upon that marriage she settled her life-interest in trust for herself For her separate use. She still remained, of course, a trustee, and was in fact the acting trustee and exeEntrix under the will. She did not set apart the newal fund, but she received the whole life- interest; End, as it was limited by her second marriage-settleent to her separate use, she has had the whole enefit of it. It was not the husband's devastavit, ecause the life-interest out of which the renewal and ought to have been provided did not go to him; ut, by the very terms of the settlement, that lifeterest was settled to her separate use; so that she, part from her husband and as a feme sole, had, aring the marriage, committed the breach of trust, receiving and applying the whole of the life-inme, instead of setting apart a sufficient sum to anver the renewals. She died, and after her death the rsons who were entitled in reversion to the ecclesiascal property, under the first husband's will, filed their l against the trustees to make them responsible; but ey insisted that the representatives of the wife, who s the acting trustee, and had received and applied to r own separate use the whole income out of which e renewal fund should have been provided, were cessary parties; and Wigram, V. C. allowed the jection, and required the representatives of the wife be brought before the court. Sir John Stuart, I conceive, most properly held that her property s liable; and, of course, the property over which e had a power of appointment was liable, because general assets were liable. I have not the advange of having any copy of the judgment delivered by John Stuart, and therefore I cannot say what the cise ground was on which he put it. If he put it the ground that the reversion was settled to her HOUSE OF LORDS. separate use, because she had a power of appointment House of Lords. Reported by JAMES PATERSON, Esq., of the Middle Temple, Thursday, July 20. ABERDEEN RAILWAY COMPANY. BLAIKIE BROTHERS. A contract made by a director of a railway company, The com This was an appeal from a decision of the Court of HOUSE OF LORDS. Brothers, as acting for and on account of the plaintiffs, with a view to the plaintiffs contracting for the manufacture and supply of the said chairs, the said John Blaikie, the youngest, acting as aforesaid, on 6th Feb. 1846, addressed an offer to the said Alex. Gibb, to furnish the permanent chairs for the defendants' railway, agreeably to the plan and specifications, to be delivered in Aberdeen at the price of 8/. 108. per ton. That, on the same day, the said A. Gibb, acting for and on behalf of the defendants, and as authorised by them, addressed to the said John Blaikie, the youngest, on behalf of the plaintiffs, the following acceptance of the said offer:-"As authorised by the directors of the Aberdeen Railway Company, I hereby accept of your offer for supplying of the chairs for the permanent road of the Aberdeen Railway, at the rate of 8. 109. per ton, delivered at Aberdeen, the chairs to be supplied in every respect of the quality and dimensions stated in the specifications of date 19th Jan. last, signed by me, and the quantity to be performed, and to which this acceptance is meant to refer, is also stated in this specification, and the period of delivery." That the quantity of chairs stated in the said specification was 78,131 joint chairs, and 312,531 intermediate chairs; or, when reduced to weight, the whole quantity to be supplied amounted to 4150 tons of chairs. That, before any of the said chairs had been supplied to the defendants, or required by them to be delivered, the defendants had requested the plaintiffs to adopt Messrs. Ransome and May's patent mode of casting the chairs, which request the plaintiffs had agreed to comply with. That the plaintiffs had already implemented their part of the said contract to the extent of furnishing and delivering to the defendants at such times and in such quantities as they required for the construction of the permanent road of their line of railway, with reference to the state and progress of their works, 2710 tons of chairs, manu factured in terms of the foresaid specification and subsequent agreement as to the patent mode of casting. That the plaintiffs are able and willing further to implement the said contract by furnishing and delivering to the defendants the remaining quantity of chairs contracted for, to wit, 1440 tons of chairs, at such times, and in such quantities, &c.; but the defendants refuse to implement the said contract by receiving delivery of the same. The plaintiffs then prayed that the defendants might be ordered either to specifically perform the said contract by accepting delivery, or to make payment to the plaintiffs of 7000l., or such other sum as shall be ascertained to be the amount of the loss and damage sustained by the plaintiffs. The defendants pleaded, first, that Mr. Gill had no authority to bind the defendants; secondly, that they never contracted in manner and form as alleged; thirdly, that at the time when the said agreement was entered into, viz., on 19th Jan. and 6th Feb. 1846, Thomas Blaikie, one of the plaintiffs, and partner in the firm of Blaikie Brothers, was a director and chairman of the defendants' company, and so continued to hold these offices until 25th Feb. 1846, when the said Thomas Blaikie resigned, on the ground that a firm with which he was connected had accepted employment, and was performing work for the railway; that "under the Companies Clauses Act, any such contract or agreement, to which the plaintiff Thomas Blaikie was a party while he remained a director of the company, was illegal, and cannot be enforced." The case was argued in May 1853. With regard to the first and second pleas, the Court of Session, according to the practice of the court, directed an issue to be tried by a jury, which it is immaterial further to notice. The principal question arose on the third plea, in a form analogous to a demurrer in this country. The Court of Session pronounced the following order: -"Find, that the circumstance of Mr. Thomas Blaikie, one of the plaintiffs, having been a director of the Aberdeen Railway Company for some months before and on the 6th Feb. 1846, and having thereafter continued to act as such, and not having resigned the said office of director till on or about the 25th Feb. 1846, is not fatal to the validity of the contract.' From this The respondents, Messrs. Blaikie Brothers, iron-order the defendants now appealed. founders and engineers in Aberdeen, brought an action against the Aberdeen Railway Company, the appel- The Solicitor-General (Bethell) and E. Gordon (Adlants. This action, owing to the Court of Session vocate), for the appellants.-The law of England is being a court both of law and equity, partook of the the same as that of Scotland on this subject, with nature of a bill in equity, as well as an action at law this exception, that the law of Scotland is not so in this country-being at once a bill for specific per- fully developed. It is the law of both countries that formance of a contract to deliver and accept iron a trustee cannot be permitted to put his interest in chairs, and an action of damages for breach of con- conflict with his duty; and a contract between a tract in not accepting part of the chairs, the plaintiffs trustee and his cestui que trust is all but entirely propraying in the alternative either for specific perform-hibited. It is true that it has been the habit of courts ance, or for damages for the breach of contract. The plaintiffs, Messrs. Blaikie, in their summons (equivalent both to a bill and a declaration) set forth the grounds of action and relief in substance as follows:That Alex. Gibb, civil engineer, Aberdeen, acting as resident engineer for and on behalf of the Aberdeen Railway Company, the defendants, having prepared a specification of chairs required for the permanent road of the line of defendants' railway, and having, on or about the 19th Jan. 1846, being the date of said specification, communicated the same to John Blaikie the youngest, one of the partners of the firm of Blaikie of equity, in the first instance, to direct an inquiry as to whether the relation of trustee and cestui que trust had ceased before the contract was made, and whether there had been acquie cence on the part of the cestui que trust: (Ex parte Lacey, 6 Ves. 625; Ex parte James, 8 Ves. 337; Fox v. M'Greth, 2 Bro. Ch. C. 226; Murphy v. O'Shea, 2 Jon. & L. 422.) But it is obvious such inquiries only tend to fritter away the rule; for it can never be satisfactorily ascertained by the machinery of any court how far the trustee may have taken advantage of his position to gain an advantage to himself. It would be much better to HOUSE OF LORDS. adhere to the general rule and permit no exceptions as Lord Eldon seemed inclined to do in Ex parte Lacy. There was a leading case in the law of Scotland decided by the House in 1794 to the same effect: (York Building Company v. Mackenzie, 8 Bro. P. C. 42.) The present case clearly comes within the same principle. A director of a railway company is in the position of a statutory trustee, and is bound to give the benefit of his skill to the shareholders, who, as a body, are comparatively helpless, and cannot, by the necessity of their condition, individually manage their affairs. A contract made between the director and the company is therefore void, especially while he occupies the office of director; and he does not make it valid by merely resigning his office immediately thereafter. The contract is entirely void in equity. The Companies Clauses Act does not alter this law, but rather recognises and confirms it. It is true the C. P. has decided in Foster v. Oxford, Worcester, and Wolverhampton Railway Company, 13 C. B. 200, that that statute does not of itself make the contract void. But, even assuming the correctness of that decision, it was merely the narrow view which a court of common law can take which was there taken; that is, the equitable doctrine could not be given effect to. But the Court of Session in Scotland is a court of both law and equity, and therefore it ought to have decided that such a contract was void. Rolt, Q.C.. and Macfarlane (Advocate), for respondents. The third plea of the defendants does not raise the general question of law, whether a director can validly contract with the company of which he is a director, but merely restricts the question to whether the Companies Clauses Act makes the contract void. If the sole question be the operation of that statute, then the case of Foster v. Orford, &c. Railway Company, 13 C. B. 200 sufficiently sets it at rest, for it was there decided that the only effect of the statute is to make the director cease to be a director, leaving the contract valid. If, however, the general question of law be sufficiently raised by the third plea, which we say it is not, still the cases of Coles v. Trecothick, 9 Ves. 234; Campbell v. Walker, 5 Ves. 677; Murphy v. O'Shea, 2 Jon. & L. 425; Selsey v. Rhoades, 2 Sim. & St. 41; Gibson v. Jeyes, 6 Ves. 266, and others, show, that if you put an end to the relation of trust and allow a reasonable time to elapse, and you show that the transaction was perfectly fair, the contract cannot be impeached. We say here, that in fact, Thomas Blaikie had ceased to be a director before the contract was made, or at least completed, and that the contract was in every respect fair and reasonable. The present appeal ought, therefore, to be dismissed. The Solicitor-General replied. Cur, adv. vult. The LORD CHANCELLOR (after stating the pleadngs).-My Lords, the ground relied on by the appellants is, that Mr. Thomas Blaikie, holding as he did the situation of chairman of the board of directors, was a trustee for the company; or, at all events, that as between himself and the company, he was subject to the same objections as those which affect a trustee in his relation to the cestui que trust, whose interests he is to protect, and so that he could not make any contract for his own benefit in relation to the affairs of the company. Messrs. Blaikie, on the other hand, contended, first, that no such defence is set up by the pleas in defence; for that the third plea is not founded on any general doctrine as to the duties of trustees, but on the special provisions of the Companies Clauses Act, and that those clauses do not support the proposition contended for; and, secondly, they say, even supposing any general question to be properly raised by the plea, still that no such general rule exists in Scotland, which would prevent a director from entering, on behoof of the company whose affairs he was managing, into a contract with a firm of which he is a member. Disregarding for the present the statute, I will proceed to consider the more general question, which divides itself into two branches: first, is any such general question raised by the pleas; and secondly, if it is, then what is the law of Scotland on this subject? The language of the third plea is as follows:- Under the Companies Clauses Act any such contract or agreement to which the plaintiff, Mr. Thomas Blaikie, was a party, while he remained a director of the company, was illegal and cannot be enforced." The respondents contend that the plea raises no question as to the invalidity of the contract arising from Mr. Blaikie's situation as director, except so far as that invalidity is created by the statute, and so that the general law on this head is not properly in controversy. But is this so? In order to test the accuracy of this argument, we must assume the law to be such as the appellants contend for, namely, that, as a general rule, no director can enter into a contract on behalf of the company with a firm in which he is a partner. What the plea insists on is, that the contract entered into by Mr. Blaikie when he was director, is incapable of being enforced, because it is avoided by an Act of Parliament. The proposition itself, that is, the invalidity of the contract by reason of the character which Mr. Blaikie sustained, is distinctly brought forward. The objection ex hypothesi is valid; but a wrong reason is alleged in its support. I confess this seems to me to be immaterial. The object of pleading is to compel the litigant parties to state distinctly the facts on which their title to relief rests. If this is done, There the respondent Mackenzie, while he filled the 1 HOUSE OF LORDS. themselves. I have, therefore, satisfied myself that the Court of Session came to a wrong conclusion; and that the third plea was a sufficient answer to the plaintiff's ease. I therefore move that the judgment of the court below be reversed. go Lord BROUGHAM.-My Lords, I also arrive at the same conclusion, that the law of Scotland differs in no respect from the law of England upon this matter; and it is very important that it should be understood that there is no such difference between the two systems of jurisprudence. The cases which have been referred to of Whelpdale v. Cookson, 1 Ves. sen. 9; and chiefly the case of Er parte James, in bankruptcy, clearly lay down what the law of England upon the point is. "And Lord Eldon, either in that case or in one of the others-in Campbell v. Walker or in Ex parte Lacey-goes even further than Lord Hardwicke did in Whelpdale v. Cookson, and considers (though he expresses it, no doubt, with the respect due to that eminent judge, rather as a grave doubt than as a well-matured opinion) that Lord Hardwicke did not far enough in giving effect to this principle when he said that it was possible that the a sent of the creditor might validate the sale. Now, how far the two systems of law are the same upon this very important question appears, not only from that which my noble and learned friend has adverted to-namely, the case of The York Buildings Company v. Macbenzie, which is the ruling case upon this subject, and which was decided upon an appeal from Scotland, and according to the principles of Scotch law in this house; but it also appears, from the fact that in that case a distinct reference was made, at least in the argument at the bar, to the English law authorities, and to the very case of Whelpdale v. Cookson, 1 Ves. sen. 9. The case of Ex parte James, 8 Ves. 337, could not have been referred to, because it was decided some years afterwards; but the case of Whelpdale v. Cookson is referred to in the argument at the Scotch bar, as well as the passage in the digest from the Roman law which my noble and learned friend has read. It is also to be observed that, not only were the English cases cited in Scotland in that instance, but conversely, the Scotch case of Mackenzie v. The York Buildings Company is referred to afterwards in the English cases-repeatedly at the bar, and once or twice, I think, by Lord Eldon himself in disposing of English cases. The case of Mackenzie was, as has been observed, after eleven years of possession; and it is remarkable, too, that there was no fraud whatever found imputable to the party, Mr. Mackenzie, the purchaser in that case. I think that, in the account of the subsequent proceedings in the case, though not in the court below, it appears that so entirely bona fide was Mr. Mackenzie's possession found to be, that the rule of the civil law, happily the rule in Scotland, though most unfortunately never introduced into our jurisprudence, namely, that "fruges bonâ fide perceptae et consumptae" are to be held to be the property of the party who is ultimately held not to have the title, was applied in the case of Mackenzie. So entirely free from all imputation of fraud was he found to be, that he was allowed not merely to remain in undisputed and undisturbed possession of the rents and profits of the estate during those eleven years, that is, up to the period of the appeal; because the rule of bond fide consumption applies not only up to the time of a decision against him in the court below, but up to the final decision of the Court of Appeal. And accordingly Mr. Mackenzie's bona fides was found to be so mimpeachable in the case, and his conduct in the whole transaction was found to be so entirely without fraud, that not only did the court below find the other party liable to costs because they had charged him with fraud, which the court at the first decided in his favour, but afterwards he was adjudged to have the whole of the expenses allowed to him to which he had been put in ornamental improvements upon That is certainly one very strong instance of the application of the rule; perhaps it is stronger than any other within our recollection, because in that case it clearly shows that so entirely was the opinion of the court in favour of the rule, that even while they held that the transaction could not be sustained, but that his purchase was invalid, they nevertheless decreed him possession of the rents and profits, and also to be allowed for the expenses of the improvement. In that case, my Lords, I must also observe that it was not merely the decision of this House which set the court below right upon a point of Scotch law, as it has once and again done, but the Scotch law appears to have been by no means distinctly maintained by the court below to be as it was ultimately found not to be by Four Lordships' decision; for, in the first instance, they decided against the party seeking to set aside the sale; the court afterwards, however, by a narrow majority, set aside the sale. Then again came both parties to appeal against this second decision, and then by a narrow majority again the court refused to set aside the sale, and found, as I have already stated, that in respect of the charge of fraud, the defendant, Mr. Mackenzie, was entitled to his expenses. Therefore, it cannot be said to have been at all the understanding of the court of session that the law was in favour of such purchases at the time when you the estate. find these two conflicting decisions in the court below, for and during the term of her natural life, all and and each by such a very narrow majority. My Lords, singular the stock, crop, and effects, both real and I also agree with my noble and learned friend, that the personal estates, of what nature or kind soever; and decision in the case of Foster v. The Oxford, &c. from and after her decease I leave and bequeath all Railway Company, in the C. P., upon which great re- my crop, property, personal estates, and effects, of liance was placed at your Lordships' bar, does not what nature or kind soever; and from and after her apply to this case, because there the transaction was decease I do give and bequeath all and every my child past all doubt valid at common law, though not in or children (except the said Edward Bellingham) who equity; but had the C. P. an equitable jurisdic-shall or may be living at the time of my decease, to tion as well as a common law jurisdiction, the anomaly be equally divided between them, share and share never could have happened of a transaction being alike. And I make, nominate, and declare and appoint found legal and valid in that court, which could not my wife sole executrix of this my will. In witness stand examination on the other side of Westminster- whereof I have hereunto set my hand and seal, the hall. It has not often occurred to me to see a 25th Aug. 1807. THOMAS FREEMAN," stronger instance of the great inconvenience, to say the very least of it, of that division between the two sides of Westminster-hall-I will not say that impassible barrier between them-for, on the contrary, it is constantly, and must be for the sake of justice, constantly passed; but I have seldom seen a more striking instance of the inconvenience of the existence of that division, and of not allowing the court to exercise both jurisdictions; at all events, whenever a case arises on which entire justice cannot be done without the exercise of both jurisdictions. On the whole, I entirely agree that the judgment of the court below must be reversed. The LORD-CHANCELLOR.-I do not propose to allow costs in the court below, for I think the company misled the plaintiffs, by putting their plea on a wrong ground Judgment reversed. Equity Courts. COURT OF APPEAL IN CHANCERY. Reported by C. H. KEENE, Esq., of Lincoln's-inu, Barrister-at-Law. July 19, 22, and 24. FREEMAN v. FREEMAN. A testator, being entitled to freehold, leasehold, and copyhold estates, made his will, and, after reciting that his eldest son, and customary heir, was sufficiently provided for, devised the same, after the death of his wife, to his three younger children. By a subsequent will, commencing "This is the last will and testament of me," &c., made after the birth of two other children, and containing a similar recital to that in the first will, the testator gave (after the decease of his wife) all his crop, property, personal estates, and effects, to all and every his children, except his eldest son and customary heir. The copyhold estates were never surrendered to the use of the testator's will, and at the date of that will the testator had freehold estates on which it could operate: Held, affirming the decision of the court below-first, that the second will contained no disposition of the copyhold estates; secondly, that the second will did not revoke the devise of the copyholds contained in the first. This was an appeal from the decision of Wood, V.C., reported in 1 Kay, 479. Both wills were duly executed and attested. The copyholds were not surrendered by the testator to the use of his will. The testator died in Sept. 1807, leaving his wife, Edward Bellingham Freeman, his eldest son and heir-at-law and customary heir, and the three children mentioned in his first will, and two others born after the date thereof, surviving. Elizabeth Freeman, the widow of the testator, died in the year 1827; and Edward Freeman, one of the trustees of the will, in 1851. The bill was filed by the younger children of the testator, praying that a surrender to the uses of the testator's will might be supplied, and that proceedings in ejectment, commenced by the customary heir, might be restrained by injunction. Wood, V.C. considered that there was a misjoinder of plaintiffs, inasmuch as the two children who were born after the date of the first will were only interested under the second; and, in accordance with his Honour's suggestion, the bill was amended by making these parties defendants. Upon the cause coming on to be heard, his Honour held that the court would, if necessary, supply a surrender to the use of the parties named in the first will; but it could not be a simple decree to supply a surrender, because, if the surrender were supplied ab initio, the second will would pass the copyholds by means of the general words; but there was nothing in the second will sufficiently indicative of an intention to pass copy holds to enable the court to supply a surrender to the use of that will, inasmuch as there was freehold property upon which the general devise contained therein would operate, and the only ground on which the court would allow general words to pass unsurrendered copyholds, was, just as in cases of powers, that there were no other means of satisfying the words of the devise. Nor could the two instruments be taken together as one will; for the second instrument, in that case, would be a revocation of the interests given by the first to the three children, Thomas, John, and Eliza-the second devise would be inconsistent with the first. The two wills must therefore be looked upon as separate instruments, the first of which clearly passed the copyholds, and was not revoked by the second; which simply operated on that property upon which it affected to operate, and not upon the copyholds, which it did not notice. From this decision, the customary heir, Edward B. Freeman, and the two younger children of the testator, appealed. W. M. James and Metcalfe, for the plaintiff, in support of the decree of the V. C., contended that the copy holds passed by the first will, and the devise was not revoked by the second. There was nothing in the second will inconsistent with the devise of the copyholds, and certainly no indication of any intention to revoke it; the expression "This is my last will and testament" was wholly insufficient for that purpose. They cited Thomas v. Evans, 2 East, 448; Rolt and Hislop Clarke, for the defendants, the two children of the testator, born after the date of his first will, argued, in support of the appeal, that the words in the second will were sufficiently large to include copyholds. Thomas Freeman, the testator, being entitled to the reversion in fee in certain copy hold hereditaments, holden of the manor of Bromyard, upon the death and failure of issue of his brother Edward, and being also seised of certain freehold hereditaments in fee simple in possession, made his will, dated the 18th June 1804, and thereby, after providing for the pay-Judd v. Pratt, 15 Ves. 390. ment of his debts and funeral and testamentary expenses, gave, devised, and bequeathed to his wife for her widowhood the said hereditaments, and all the estate, right, title, and interest which he had of, in, or to all and every or any of the freehold, leasehold, and copyhold, given and devised by Chandless and C. C. Berkeley, for Edward B. Freethe will of his late father, and all and every other his man, the customary heir, opposed the decree, on the estate and estates, whatsoever and wheresoever, free-ground that the second will operated as an entire hold, leasehold, or copyhold, to which he had any revocation of the first, being inconsistent with it. In right or title whatsoever, in possession, reversion, the ecclesiastical courts, where there are two papers remainder, or expectancy; and from and immediately both called wills, if the last professes to be the whole after the death or second marriage of his said wife, will, the first is not admitted to proof. The expression the testator gave, devised, and bequeathed the same to "this is the last will and testament of me," is his two younger sons, Thomas Dew Freeman and sufficient to revoke a former will. They cited Archer John Freeman, and to his daughter, Elizabeth Free- v. Slater, 10 Sim. 624; Coward v. Marshal, Cro. Eliz. man, their heirs, executors, administrators, and assigns, 721; Seymour v. Nosworthy, Hard. 374; Willet v. forever; and in the same will was contained the follow Sandford, 1 Ves. sen. 178, 186; Crosbie v. M'Dowal, ing clause: "and whereas my eldest son, Edward Bel- 4 Ves. 610; Plenty v. West, 16 Beav. 173; S. C. lingham Freeman, being well provided for by the will 1 Rob. 264. of my father, give him by this my will the sum of 107. only, by way of acknowledgment." And the testator appointed his wife and his brother, Edward Freeman, and his cousin, Richard Barneby, executrix and executors of his will. The testator made a second will, dated the 25th Aug. 1807, which is as follows:-" This is the last will and testament of me, Thomas Freeman, of Whitehouse, in the parish of Suckley, and county of Worcester, gentleman. Whereas, in and by the will of my late father, Thomas Freeman, deceased, my eldest son, Edward Bellingham Freeman, will become upon my decease entitled to all my freehold estates, which will make an ample provision for him: Now, I do hereby give and bequeath to my wife, Elizabeth Freeman, The following cases were also referred to in the court below:-Byas v. Byas, 2 Ves. sen. 164; Sampson v. Sampson, 2 V. & B. 337; Weld v. Acton, 2 Eq. Cas. Abr. 777, pl. 26; Wentworth v. Cox, 6 Mad. 363; Allen v. Anderson, 5 Hare, 163; Church v. Mundy, 15 Ves. 396; Doe dem. Wall v. Langlands, 14 East, 370; Hitchens v. Basset, 2 Salk. 591; S. C. Show. P. C. 146. Lord Justice KNIGHT BRUCE.-It is conceded on the part of each of the parties to this case, both plaintiff and defendant, that the copyhold estate in dispute is the only copyhold property that the testator had, or was interested in, and that he never surrendered the copyhold property to the use of his will; that his customary heir was already sufficiently provided for; that the testator, when he executed the second ROLLS COURT. instrument, had freehold estates in fee devisable and devised by him; and that, if the expression in that instrument had been "the only will and testament," the construction contended for by the respondent could not be maintained; and, on the other hand, if the earlier will had been the only one, the equitable title to the copyholds would clearly have passed under it, so that the testator did not die intestate as to the copyholds, unless the earlier will was revoked by the later. But the later instrument does not profess to revoke the earlier, nor does it notice any other disposition of his property by the testator, or affect his copyhold property, although it does contain a disposition of some of the other disposable property of the testator differing from the disposition thereof contained in the earlier will. It seems to me that both of those instruments may well stand in force together, neither of them containing separately the testator's whole intentions, and that those dispositions which are contained in the later instrument will supersede those contained in the former, so far only as they depart from the earlier dispositions. The expression "last will and testament " amounts to nothing so far as real estate is concerned; it could not be construed otherwise than if the testator, instead of saying "this is my last will and testament," had said, "this is a testamentary instument." If the testator had begun his will with "this is my only will," it might have been different; but I think that, whatever may be said by the ecclesiastical courts as to the meaning of a testator when he calls an instrument his last will, in the temporal courts that expression is not to be taken as meaning to revoke all earlier wills, unless they are clearly inconsistent with it. I am of opinion that this appeal should be dismissed with costs. Lord Justice TURNER.-The question for us to consider in this case is whether the second will is to be taken as having revoked the first. No case has been cited in which a devise of property has been held to be revoked by another will containing no disposition of that property; and I am not disposed to extend the principle of the decisions, so as to create an intestacy. It is not necessary to say whether there may not be cases in which the testator may evince an intention to dispose of the whole of his property by such words as are used in the second will; but in this case the testator has disposed of his copyholds by his first will, and has not disposed of them in the second, which is no sufficient evidence of such an intention; for we must take him to have known, when he executed his second will, that he had disposed of his copyhold property. Then we are told that in the Ecclesiastical Courts a different rule prevails; but there the mere appointment of an executor will dispose of the whole estate, and cases of revocation as to personal estate have never been applied to real estate. I think the V. C. has dealt mercifully with the appellants, in not making them pay the costs. I am not sure that, if costs had been given in the court below, I should have dissented from that judgment. The appellants ought to be well satisfied. Lord Justice KNIGHT BRUCE.-In the end I hope the estate will be divided equally between the five children. Morally, it ought to be. Appeal dismissed with costs. ROLLS COURT. could, under the terms of the contract, give a valid receipt for the property included in it; and therefore that the payments to the husband were good; but that the payment to his assignees was bad, as no valid receipt could be given by them. Held, also, that the portion of the property which was yet unpaid must be treated as the absolute property of the wife, subject to the life estate of the husband therein, and must be settled accordingly for the benefit of herself and her children. ROLLS COURT. and securities, upon trust to pay the dividends and interest unto his wife Harriet Inkson for life, and after her death upon the trusts thereinbefore mentioned, with respect to the sum directed to be invested to secure the 4007. a year thereinbefore given to his wife. The testator died leaving his widow and four children, including Mrs. Duncan, surviving; and they all survived the testator's widow, who died in Aug. 1842. In November following the trustee sold out This suit was instituted by Harriet Grace Duncan 13,333l. 6s. 8d. Consols., which had been invested (the wife of Andrew Duncan), by her next friend, to secure the annuity of 4007. a year to the testator's against Cannan and Harvey, the assignees in bank-wife; and, after deducting from Mrs. Duncan's oneruptcy of her husband, and Andrew Duncan, and the fourth share a sum of 1000%, which the testator had children of the marriage, and Richard Shuter, the lent to Mr. Duncan, and an arrear of interest which surviving trustee of her father's will, praying a de- had accrued thereon, he paid 20057., the balance of claration that, according to the proper construction of such fourth, to Mr. Duncan. In the same mouth he her father's will and her contract of marriage, she paid him a further sum of 10667. 58. 41d.; and bewas entitled absolutely to the corpus of her share tween Jan. 1843 and Sept. 1846 he paid him at under the will of her father Lewis Inkson, subject to different times 4001. in respect of Mrs. Duncan's the life-interest of her husband therein, and that the share of the testator's residuary estate. These pay. same might be invested and secured for her benefit, ments were made upon the joint receipts of Mr. and and that the dividends payable to the husband might Mrs. Duncan. He had also, since Mr. Duncan's be impounded for the purpose of providing for the bankruptcy, paid a further sum to his assignees, upon payment of certain annuities which he had covenanted their receipt. There still remained in his hands prounder their marriage-contract to pay to the plaintiff perty which was expected to produce about 9000L, and the children of the marriage. It also prayed to one-fourth of which Mrs. Duncan was entitled, and that the defendant Richard Shuter, the trustee of her which it was alleged Mr. Shuter intended to pay to i father's will, might be compelled to make good several the assignees of Mr. Duncan. No proof had been a payments made by him to the husband and his as- made under the bankruptcy for any contingent debt signees out of the corpus of her share. to which the plaintiff or her children were entitled Andrew Duncan, a domiciled Scotchman, in con- under the marriage-contract, and the plaintiff had templation of his marriage with the plaintiff, then no settlement except the Scotch contract, and the Harriet Grace Inkson, an Englishwoman, entered into interest of 20007. settled upon her for her separate a Scotch contract of marriage in the ordinary form, use by her father's will. The bill charged that Mr. which was executed in London, and dated the 31st and Mrs. Duncan had no power by the marriage-ccaJuly 1831, and the said A. Duncan thereby, "in tract to give any receipt for the trust property, which consideration of 1000l. paid by Lewis Inkson, the would discharge the trustee from seeing to the applilady's father, as a present portion, covenanted to pay cation of the reversionary interest of the plaintiff in to the said H. G. Duncan, his intended wife, in the the trust property, and that he ought to make good event of her surviving him, an annuity of 100l. per the sums paid to Mr. Duncan and his assignees. annum for her life, and, in the like event, to provide her with suitable furniture for her dwelling-house, or to pay her 2007. in lieu thereof, and further, he covenanted to make the following payments to the child or children that shall be procreated of the said intended marriage,-if there be only one child surviving the father, to him or her the sum of 1000l. sterling; and, if there be not more than two children surviving their father, to them the sum of 15004. sterling; and if there be more than two children surviving their father, to them the sum of 2000l. sterling, divisible among them as therein provided." The said contract then proceeded as follows: "For which causes, and on the other part, the said Harriet Grace Inkson hereby assigns and makes over to and in favour of herself and the said Andrew Duncan her promised spouse, in conjunct fee and liferent, and the child or children that shall be procreated of the said intended marriage, divisible as aforesaid, whom failing, the said Harriet Grace Inkson, her heirs, and assigns whomsoever, in fee, all estate, funds, and effects, heritable and movable, real and personal, presently belonging or due, and addebted to her, or that may be acquired by her during the subsistence of the said intended marriage; and it is provided and agreed that the provisions before written in favour of the said Harriet Grace Inkson. and the child or children that shall be procreated of Reported by GEORGE WHITELEY, Esq., of the Middle Temple, the said intended marriage, are and shall be in full satisfaction from the said Andrew Duncan, and his aforesaid, to them respectively, of all legal claim competent to the said Harriet Grace Inkson, upon the predecease of the said Andrew Duncan, or competent to her heirs and successors, upon her predecease, and also of all legal claim competent to the said child or children, upon the decease of their father and mother, or either of them; and the said provisions are hereby accepted of accordingly." In witness, &c. ROLLS COURT. Barrister-at-law. Dec. 16, 19, 21, and 22, 1853, and Jan. 20, 1854. Scotch marriage contract-Scotch domicile-Change of mariti. A contract of marriage in the Scotch form, between a domiciled Scotchman and an Englishwoman, though made in London, will be construed in England accord- The marriage was solemnised in London, on the ing to the law of Scotland, although the domicile of 2nd of Aug. 1826, and Mr. and Mrs. Duncan went to the parties is subsequently changed by their permanent Aberdeen, where they resided until Aug. 1841. Mr. removal to England. Duncan then gave up his residence and disposed of By a Scotch marriage contract, the property of the wife, his business, and sold the whole of his property in present and future (in consideration of the covenants Scotland, and came with his wife and family to Lontherein contained on the part of the husband), was don, and became domiciled in England, where he enassigned and made over "to and in favour of herself gaged in various business speculations; but in Jan. and her husband in conjunct fee and life rent, and the 1848 he was declared a bankrupt under the English child or children that should be procreated of the mar-law, and the defendants, Cannan and Harvey were riage (divisible as therein mentioned), whom failing, appointed the official and creditors' assignees. the said wife, her heirs and assigns, in fee." The par- Lewis Inkson, the father of Mrs. Duncan, by his ties at the time of the marriage were domiciled in will dated the 9th of Aug. 1881, after directing the Scotland, but subsequently became domiciled in Eng-payments of his debts, gave and devised all his real land; and, after such change of domicile, the trustee and personal estates unto his wife Harriet, Richard of the will of the wife's father paid to the husband, on Shuter, the defendant, and Benjamin Fox, whom he the joint receipt of the husband and wife, certain sums appointed executors of his will, and their heirs, exeof money, part of the share to which the wife was en- cutors, and administrators, upon trust to sell the same, titled under her father's will. The trustee also paid and out of the proceeds to invest a sum of money a further sum, to which the wife was so entitled, to the sufficient to produce 4001. a year, and to pay the said assignees of the husband, who had become bankrupt. annuity to his said wife for life, and after her decease There still remained a part of her father's residuary to divide the principal equally amongst such of his estate, to a share of which she was entitled, to be children as should be living at the time of the decease divided. Upon a bill by the wife against the trustee, of his said wife, and the issue of such of them as asking that he might make good the sums already paid, should have died leaving issue surviving, such issue and that the part of the property still unpaid might be to take their respective parents' share. And the testator directed his trustees to invest the residue of his estate, and to stand possessed of the said trust-fund settled: Held, that by the Scotch law the husband and wife The opinions of several eminent Scotch lawyers, on the construction of the contract, and the effect of the change of domicile on its provisions, were taken by both parties, the result of which is stated in the judg ment. R. Palmer, Q.C., Anderson, Q.C., and Hemming, for the plaintiff, contended that the contract, according to the opinion of the Scotch advocates, only gave a lifeestate to the husband, and the corpus remained the property of the wife. The jus mariti was excluded by the contract. The payments to the husband and wife under the contract were not good; that question was governed by the law of domicile of the parties for the time being, which was at the time English. They cited The Duchess of Buckingham v. Winterbottom, 13 Bell, Murray and Young, 1137; Donn v. Lippman, 5 Cl. & Fin. 1; 2 Sh. & M. 682; Kent v. Jackson, 14 Beav 367; S.C., 2 De G. M. & G. 49; Bell's Principles of the Law of Scotland, s. 1564, 573; Black v. Pearson, 3 Bell & Mur. 504; Massey v. Banner, 1 Jac. & W. 241; S. C., 4 Madd. 413; Byrne v. Norcott, 13 Beav. 336 Whicker v. Hume, Ib. 366; Attorney-General v. Dunn, 6 M. & W. 511; Lashley v. Thwaites, Robertson, Personal Succession App. 426; Paul v. Roy, 15 Bear. 433; Macdonald v. Macdonald, 8 Bell & Mur. 830; Er parte Mitford, 1 Bro. C. C. 398; Ex parte Turpis, Mont. 443; S. C., 1 Deac. & Ch. 120; Foubert v. Trust, 1 Bro. P. C. 129 (Tomlin); Dela Vega v. Viana, 1 B. & Ad. 284; Trimley v. Vignior, 4 Mo. & S. 695; Hitchcock v. Clendinen, 12 Beav. 534; Story, Conflict of Laws, ss. 55, 66, 89, 136, 137, 139, 148; Archbold on Bankruptcy, 181, 259, 10th edit. Roberts, for Andrew Duncan and his children. Roupell, Q.C., and Rudall, for the assignees of Duncan, cited Fergusson v. Fyffe, 8 Cl. & Fin. 121; Anstruther v. Adair, 2 Myl. & K. 513. Lloyd, Q.C., and Giffard, for the defendant Shuter, cited Stickman v. Dawson, 1 De G. & Sm. 90, 106; Leslie v. Baillie, 2 Yo. & Coll. 91; 1 Burge, Col. and Foreign Law, 235; Story, Conflict of Laws, ss. 136, 145 270, 142, 240; Johnstone v. Beattie, 1 Phill. 171; 10 Cl. & Fin. 42; Gambier v. Gambier, 7 Sim. 265; Phillips v. Hunter, 2 H. Black. 406; Wms. Exors. 47. Anderson, in reply. The MASTER of the ROLLS.-The questions raised in this suit are-First, whether the payments made by the defendant Shuter of part of the property of the plaintiff under her father's will to her husband, upot their joint receipt, are authorised by the marriage contract, in the Scotch form, executed in contemplation of their marriage; secondly, whether the payment to the assignees is good; and, thirdly, depending on the second point, whether the portion of the plaintiff's property remaining unpaid ought to be settled for the benefit of the plaintiff. That the Scotch law is applicable to this case is not disputed on either side. I shall first consider how the case would stand if the plaintiff and her husband had continued to reside in Scotland; and I shall thes consider whether it is altered by the change of domicile. The evidence given upon the construction of the marriage-contract is not upon all points perfectly satisfactory. The opinions of very eminent Scotch lawyers are given; but they differ upon one material point, namely, whether the husband alone could give a good discharge for the money. Lord Handiside, |