dividing the half of the benefits which may result from the suit. Moreover, the plaintiffs themselves publicly declared the existence of an agreement. They consulted me upon its contents and effect in the month of February last."

Upon the cause coming on to be heard before the Master of the Rolls, Mr. Pemberton, Mr. Kindersley, and Mr. Bacon for the defendant, read the above passages in the answer and the depositions, and insisted that Sloper, who formerly practised as a solicitor of the Court, but who for several years had ceased to take out his certificate, and had resided at Paris, ought to be a party.

Mr. Cooper and Mr. Ayrton for the plaintiffs contended that it would be useless to make Sloper a defendant; that supposing he thought fit to set up the agreement, it was illegal, as being plainly champerty, and could not therefore be enforced (a)—that it was probable, however, that he would not answer, as a discovery might subject him to the punishment of that crime, fine and imprisonment (b).

(a) Principal cases where the Court has refused its aid by reason of the transaction involving champerty or maintenance.-Powell v. Knowler, 2 Atkyns, 224; Bayly v. Tyrrell, 2 Ball & Beatty, 358; Burke v. Greene, ibid. 517; Lord Cholmondeley v. Lord Clinton, 2 Jacob & Walker, 1, 26, 55, 136; S. C. 4 Bligh, O. S. 1, 25, 43-45, 82, 90; Stone v. Yea, Jacob, 426; Byrne v. Frere, 2 Molloy, 157, 178-180; Harrington v. Long, 2 Mylne & Keen, 590, and Prosser v. Edmonds, 1 Younge & Collyer, 481, 496, 500.

In the following cases instruments were set aside by reason of champerty or of maintenance.-Skapholme v. Hart, Reports tempore Finch, 477; Strachan v. Brander, 1 Eden, 303; Kenney v. Browne, 3 Ridgway, 462, 498-503; Stevens v. Bagwell, 15 Vesey, 139, 150, 156, and Wood v. Downes, 18 Vesey, 120, 125 -128.

(b) Principal cases where it has been held that a defendant was not bound to answer facts tending to show him guilty of champerty or maintenance.-Penrice v. Parker, Reports tempore Finch, 75; a case in which a counsel had contracted for a sum

The MASTER OF THE ROLLS thought that Sloper should be before the Court. Upon the suggestion of the plaintiffs' counsel, that if such an agreement had ever existed, it had been cancelled, the order gave the plaintiffs leave to amend their bill by adding parties or otherwise, as they might be advised.

Monsieur Boityère manifestly imagined that Sloper was the solicitor or agent of the plaintiff, in which case, under the provisions of the Code Napoleon (Art. 1597), the agreement would have been null. Supposing Sloper not to have stood towards the plaintiffs in such relation, the agreement was valid according to the law of France. See Merlin, Repertoire de Jurisprudence, under the title Pacte de quotâ litis. In discussing whether Sloper was

in

gross to be paid for fees on the event of the cause.*-Sharp v. Carter, 3 Peere Williams, 375; Oliver v. Haywood, 1 Anstruther, 82; Mayor of London v. Ainsley, ibid. 158. But in the latter case the demurrer was allowed on another ground.Wallis v. Duke of Portland, 3 Vesey, 494; S. C. 8 Brown P. C. 161, and Hitchins v. Lander, Cooper, 34.

"En maintenance Hank (ford) dit que en brefe de champertie port vers Penros de ceo que il aver prise parcell del terre que fuit recover vers le plaintif, Penros dit que il fuit de counsell cestui que recover, et avoit cel terre pur ses gages, et demaunde jugement, et sic bene: mes sil ust ceo prise in auter forme, il ust estre champertie; tamen quere si ust estre agree inter Penros et son client devant laction porte que il aura parte pur ses gages, car donques champertie. Contrarium ou il recover bonâ fide sans tiel promise ou pacte precedent et donques don parcell a son atturney pur ses gages."-Brooke's Abridgment, Champertie, 3. Coke, after stating Penros' case, adds "neither doth it appear what became of Penros' plea: and we are of opinion, that it shall remain for ever a blemish to his reputation, as often as it is cited; for quamvis aliquid ex se non sit malum, tamen si sit mali exempli, non est faciendum."-Second Institute, 564.

a necessary party, the possibility of the agreement not being prohibited by the French jurisprudence was not adverted to. The agreement being to be executed here, the question would still arise if the Court would give effect to a transaction opposed to the policy of several of our statutes and of all our tribunals.

V. C. July 18, November 3, 1837.

There being an assignment by way of security

of the wife's

and the wife,

when the con

tingency hap

upon a settlement, and a moiety being settled,-held,

BENJAMIN ARCHER V. JOHN GARDINER and JANE his Wife, MARIA GRAHAM, and others.

By an indenture dated the 28th June, 1823, and made between the above-named defendants John Gardiner and for the husband's Jane his wife, of the one part, and the defendant Maria debt of a moiety Graham of the other part, in consideration of 5107. due contingent fund, from the defendant John Gardiner to the defendant Maria Graham, it was witnessed that the said defendants pened, insisting John Gardiner and Jane his wife did bargain, sell, assign, transfer, and set over unto said defendant Maria Graham, her executors, administrators, and assigns, all that one with reference moiety of the one-fifth or other part, share, and interest to subsequent assignments of of said defendant John Gardiner in right of said deportions of the entire fund, that fendant Jane Gardiner, or either of them, in the printhe first assign- cipal sum of 7350l. 4 per cent. consolidated bank annument passed all ities, or other stock or funds to which he, she, or either of them was entitled under the will therein mentioned, in reversion expectant on the decease of one Elizabeth Graham, contingent upon said defendant Jane Gardiner being the longest liver of them, and all benefit, &c., and all the estate, &c.: to have, hold, receive, take, and enjoy said one moiety of the share and interest of him the said defendant John Gardiner, in right of said defendant Jane Gardiner, or of either of them, of, in, to, and out of said principal sum of 73501. 4 per cent. consolidated bank annuities, or of the stocks and funds. aforesaid, and every part thereof, from and immediately after the decease of said Elizabeth Graham unto said defendant Maria Graham, her executors, administrators,

the remaining
moiety, and not
the half of it.
A married
woman insisting
upon her equity

to a settlement,
and the Court
giving her a
moiety of the

fund, her costs

deducted before the division.

and assigns upon trust to receive same, and retain and repay herself and themselves the said sum of 510., and all sums of money which then might be due for interest thereon, and also for premiums and expenses she the said defendant Maria Graham, her executors, administrators, or assigns, should pay or be put to in effecting and keeping on foot a policy of insurance upon the life of said defendant Jane Gardiner for the sum of 510l. against the life of said Elizabeth Graham, in case of the default of said defendant John Gardiner to effect or keep same on foot according to the covenant thereinafter contained; and after payment of said sums respectively, it was declared that the surplus of the moiety should be paid to and received by said defendant John Gardiner, his executors, administrators, or assigns.

By an indenture dated the 13th of April, 1826, made between the said defendants John Gardiner and Jane his wife of the one part, and Rebecca Kyffyn, widow, of the other part, it was witnessed, that in consideration of the sum of 1507. by the said Rebecca Kyffyn, paid to the said defendants John Gardiner and Jane Gardiner, they the said defendants John Gardiner and Jane his wife, and each of them, according to their respective interests, did grant, bargain, sell, assign, transfer, and assure unto the said Rebecca Kyffyn all that the sum of 5007. out of the share that would be so due and payable to her the said Jane Gardiner in her own right on the decease of the said Elizabeth Graham, under the will aforesaid, without any deduction or abatement thereout, or on account of any other cause, matter, or thing, or under any other pretence whatsoever: to have, hold, receive, perceive, and take the said sum of 5007. from and out of the principal sum of 14707., the proportional part or share of her the said Jane Gardiner (being the one-fifth part of the said sum of 73501. in the said 4 per cent. annuities so payable to her on the decease of the said Elizabeth Graham as aforesaid), to the only proper use and behoof of the said Rebecca Kyffyn, her executors, administrators, and as

signs, for ever. And by a deed-poll bearing date the 3d of March, 1827, indorsed on the last mentioned indenture, it was witnessed, that in consideration of the sum of 907. by the said Rebecca Kyffyn paid to the said defendants John Gardiner and Jane Gardiner his wife, they the said defendants John Gardiner and Jane Gardiner did grant, bargain, sell, assign, transfer, and assure unto the said Rebecca Kyffyn all that the sum of 2701. out of the said part or share of the said sum of 73507. 4 per cents. that would be due and payable to her the said defendant Jane Gardiner in her own right on the decease of the said Elizabeth Graham, under and by virtue of the therein recited will, without any deduction or abatement whatever thereout, on account of any cause, matter, or thing, or under any pretence whatsoever: to have, hold, receive, perceive, and take the said sum of 270%. of her the said defendant Jane Gardiner, so payable to her at the decease of the said Elizabeth Graham as therein stated, to the only proper use and behoof of her the said Rebecca Kyffyn, her executors, administrators, and assigns, for ever.

The said Rebecca Kyffyn having died intestate in the year 1833, the plaintiff had become her administrator, and filed the bill in this cause to have the said two sums of 5007. and 2707. transferred and paid out of the sum of 14257. 18s. three and a half per cents., which now represented the said sum of 14707. 4 per cents.

Upon the hearing of the cause, the defendant Jane Gardiner insisted upon her equity to a settlement, and the Vice-Chancellor intimating that one-half the fund must be settled, as there did not appear to be any previous settlement or other circumstance usually influencing the Court in fixing a smaller amount (a), and the remainder

(a) The ensuing are some instances in which half the fund has been settled.-Jewson v. Moulson, 2 Atkyns, 417; Worrall v. Marlar, 1 Cox, 153; Brown v. Clark, 3 Vesey, 166; Pringle v. Hodgson, ibid. 617; Carr v. Taylor, 10 Vesey, 574, and 1 Mad