turbed), or to go into the question, whether the second agreement contained a sufficient reference to the first.

The second agreement, regarded as an independent agreement, was complete in itself, and divided into two distinct branches; and the mere fact that the plaintiffs, who had really performed their part, could not have been compelled to do so, was not a reason for refusing to decree specific performance against the defendants of a distinct part of the agree. ment.

It was true that the plaintiffs, by their bill, alleged this agreement to have reference to a particular document; but that was immaterial, since it proved sufficient of itself to support their case.

Dickinson and A. Dixon, for the plaintiff, contended,

1st. That the plaintiff's original bill was sustainable as a bill to redeem Sacree's mortgage. They admitted that the plaintiff could not have filed a bill to enforce the judgment as an equitable charge, before the expiration of twelve months from its entering up, and that he could not have come to a court of Equity, (independently of the statute 1 & 2 Vict. c. 110) to ask it to remove some legal impediment to his taking possession, without having first sued out a writ of elegit. But the judgment, being a lien upon the land, gave the plaintiff a right to redeem the prior mortgage, and this he might do without sueing out a writ of elegit,

Powell on Mortgages, by Coventry, 282 a, (6th ed.);

Neate v. The Duke of Marlborough, 3 My. & Cr. 407, 416;

Seton on Decrees, 237 (2nd ed.).

2nd. That the twelve months had now expired, and,

been cured. The Court would give an administrator relief on a bill filed before the grant of the letters of administration, and a vendor might enforce specific performance upon a title acquired after the filing of

the bill.

3rd. That, inasmuch as the bill had been amended after the expiration of the twelve months from the

The bill being dismissed by reason of an objection which might have been taken by demurrer, the defendant was only allowed costs as of a demurrer.

The plaintiff had, on the 18th of December, 1861, recovered a judgment for 467. and costs, amounting altogether to 891. 17s. 5d., against the defendant, Miss Tucker, and had registered this judgment in the Common Pleas on the 15th of January, 1862.

Miss Tucker was the owner of certain freehold property at Hythe, subject only to a mortgage in fee, and a further charge, for securing 2007. and interest, in favour of Thomas Sacree.

On the 22nd of August, 1862, the plaintiff filed his original bill against Sacree and Miss Tucker as defendants, seeking to redeem the former and to foreclose the latter.

Miss Tucker, by her answer, objected that the bill contained no allegation of the plaintiff having sued out a writ of elegit on his judgment, and claimed to have the same benefit of the objection as if she had demurred.

On the 27th of March, 1863, Sacree transferred his mortgage to the plaintiff, and on the 20th of April, 1863, the plaintiff's bill was amended by stating the transfer and striking out Sacree's name as a defendant, and was thus converted into a simple foreclosure bill against Miss Tucker.

as a bill for giving effect to the judgment as an equitable charge. See

Smith v. Hurst, 10 Hare, 30; where the original bill having been filed within the twelve months, a decree giving effect to the judgment, was made upon a supplemental bill, filed after the expiration of the twelve months.

4th. That the objection ought to have been taken by demurrer; and, consequently, even if it succeeded, the defendant was not entitled to costs,

Nesbitt v. Berridge, 1 N. R. 345.

J. Pearson, and Ersey, for the defendant, contended

1st. That a judgment creditor could not, independently of the 1 & 2 Vict. c. 110, file a bill to redeem a mortgage without first sueing out a writ of elegit,

2 Fonbl. Eq. 269;

1 Madd. Ch. (2nd ed.) 522; (3rd ed.) 655;
Mitford, Pleading, 126 (4th ed.).

The observations of Lord Cottenham, relied upon for the plaintiff, referred only to cases in which the proceedings were instituted against, not by, the judgment creditor, e. g. to a foreclosure suit by a prior mortgagee, or to an administration suit. So an heir at law was entitled to an issue of devisav vel non when defendant, but not when plaintiff,

Boyse v. Rossborough, Kay, 71.

2nd. That if the plaintiff had no title to sue when

According to the evidence for the residuary legatees, which was uncontradicted, J. B. Brittain and Miss Hopkins had, to deceive the testator, George Brittain, fixed a day for their marriage, and gone away from his house as if for the purpose of being married at Covent Garden Church; but instead of really going there, they had merely procured a forged document purporting to be a certificate of their marriage, by showing which to the testator they satisfied him that they were married. One of the residuary legatees further stated that she had, at the testator's request, while he was preparing his will, written to

ask J. B. Brittain whether he and his wife were married or not, and had received in answer, and had communicated to the testator, a letter in which he stated that they were married. She could not find this letter, and believed it to have been destroyed.

Selwyn, Q.C. (W. Morris with him), for Miss Hopkins, submitted that the only question was, whether she was the person intended by the testator, and that upon this the Chief Clerk's certificate was conclusive.

Toulmin, for some of the residuary legatees, contended that the case came within the principle of,

Kennell v. Abbott, 4 Ves. 802;

inasmuch as J. B. Brittain and Miss Hopkins had joined in representing to the testator that they were married, but for which he would not have left the latter anything.

W. R. Fisher, for the executors.

THE MASTER OF THE ROLLS held that this was simply a case of misdescription, and could not be brought within the class of cases as to legacies obtained by fraud. In Kennell v. Abbott, the legatee had represented himself to the testatrix as her husband, and the Master of the Rolls (Lord Alvanley) evidently considered that the circumstance of his being her husband had alone induced her to leave him the legacy. The case of Rishton v. Cobb (5 My. & Cr. 145) was a strong confirmation of his Honour's view. In that case the testator had supposed her to be the widow of Sir Niel Campbell. She had in fact married again, but according to a not unusual practice, had retained her former name. The testator left her the dividends of a sum of stock, to be paid to her so long as she continued single and unmarried, and she was held entitled to the legacy on the ground that it was not proved that she had intentionally concealed her second mar. riage. Here it did not appear how the testator had been injured through the petitioner not being really his son's wife, and there was no evidence that the con

cealment had been practised for the purpose of obtaining the le acy.

This was a question of priority between simple contract creditors and judgment creditors, arising in the administration of the personal estate of James Rigby, an intestate. The defendants, before the order for administration was made, obtained judgments against the intestate's administratrix, but did not register them until after the date of the order. The Chief Clerk, by his certificate, found that the defendants were entitled to priority of payment over the simple contract creditors, and, as between themselves, according to the dates of their respective judgments; but, at the request of the plaintiffs, the point was adjourned for the consideration of the Court.

that the present case was within the statute 23 & 24

Selwyn, Q. C., and De Gex, for the plaintiffs, argued

Vict. c. 38. The case of

Gaunt v. Taylor, 3 Man. & Gr. 886 (more fully reported 11 L. J. C. B. 68),

was distinguishable. That was a case sent from this Court by Lord Langdale, M. R., for the opinion of the Court of Common Pleas. It was to be regretted that the learned Judges, in drawing up their certificate, assigned no reasons for their decision; but it might fairly be presumed from the incidental observations of Tindal, C.J., in the course of the argument, that the Court relied upon the general intention expressed in the preamble of the statute 4 & 5 Will. & Mary, c. 20, as establishing the distinction between judgments against a testator or intestate, and judgments against his executors or administrators. The statute 23 & 24 Vict. c. 38, re-enacted the former statute generally, but without any reference to the intention expressed in the preamble.

J. L. Bird, and W. Pearson, for the judgment creditors, contended that the effect of the two statutes was identical as regarded the point in question.

Selwyn, Q. C., in reply.

THE MASTER OF THE ROLLS said, that the present case was ruled by that of Gaunt v. Taylor. The evil, which the statute of William and Mary was intended to remedy, was that there might be judg ments against a testator or intestate of which his executors or administrators knew nothing, and they

might thus become guilty of devastavit by paying the simple contract debts first. When the statute 2 & 3 Vict. c. 11, was passed, the words contained in the statute of William and Mary "or has any preference against heirs, executors, or administrators, in their administration of their ancestors' testators', or intestates' estates" were omitted. The case of Fuller v. Redman (26 Beav. 600), decided in this Court, drew attention to that omission, and Lord St. Leonards, after communicating with his Honour, introduced the Act, 23 & 24 Vict. c. 38, to put the law on the old footing, and obviate the peculiar difficulty which had arisen; but in framing the latter Act, his Lordship had thought it unnecessary to insert a declaration that it was to refer only to judgments entered up against the testator or intestate, as the executor or administrator must have had notice of a judgment entered up against himself, and it was not intended to protect him against a devastavit which he had knowingly committed.

devised the said three mill shares in fee; and upon further trust, that the trustees should, subject to the payment of the said annuity of 251., pay the rents of his real estate, and the dividends of the trust moneys, to his five younger children (the plaintiffs) during their respective lives, in equal shares, as tenants in common, with remainder to his grandchildren; and after the decease of the last survivor of his children (the plaintiffs), he directed that the trustees should sell his real estate (except the mill shares), and stand possessed of the moneys arising from the sale and the dividends thereof (subject, nevertheless, to the said annuity of 251. given to Francis Thornton, and also the principal sum yielding the said annuity of 257.), in trust for the children of the plaintiffs, per stirpes; and he directed that the principal sum from which the annuity of 257. arose, should be divided after the death of Francis Thornton, among Francis Thornton's children.

The testator died in 1856, and the annual income of his estate (whether inclusive or exclusive of the three mill shares) proved to be more than sufficient to pay the annuity of 100l. to the widow, and such of the additional annuities of 157. as remained payable:

Francis Thornton, by his will dated in 1849, devised and bequeathed all his real and personal estate to three trustees, of whom his wife was one (and whom he also appointed executors), their heirs, &c., upon trust to get in and convert such part of his personal estate as should not consist of money, and out of the dividends arising from the investments thereof, and the rents of his real estate, to pay his wife an annuity of 1001. during her life in lieu of dower, and the additional yearly sum of 15%. in respect of each of his children till they should respectively attain twenty-one, and also pay any sum not exceeding 301., as a premium, or apprentice fee, for each of his sons; and upon further trust, to pay to each of his children the sum of 250%. at twenty-one, or marriage; and from and after the decease of his wife, upon further trust, out of the rents of his real estate (excepting three shares in a certain mill, to which he was entitled in ke), and also out of the annual dividends of the said trust moneys, &c. (subject, nevertheless, to the payment out of the said trust moneys of the several sums of money therein before given to and for the benefit of his said sons and daughters), to pay an annuity of 251. to his son Francis Thornton, to whom the testator

the five younger children against the trustees, and the heir-at-law, Francis Thornton, to take the opinion of the Court, as to whether the annual income of the mill shares was applicable with the annual income of the other portions of the testator's estate to pay such annuities during the life of the widow, and whether the surplus annual income of the other portions of the testator's real and personal estate during the life of the widow belonged to the plaintiffs under the trusts of the will, or ought to be invested and accumulated for the benefit of the plaintiffs and their issue, or whether the same was undisposed of by the will.

Humphry (Selwyn, Q. C., with him), for the plaintiffs, contended that this was an executory devise of real and personal estate, and that the surplus rents and profits of both, which accrued between the deaths of the testator and the widow, went to the five children. He cited,

Genery v. Fitzgerald, Jac. 468.

younger

Baggallay, Q.C., and Wood, for the heir-at-law. The will consisted of two parts; one disposing of the property during the life of the widow, and the other after her death.

The words "from and after the

decease of my said wife "governed all the subsequent clauses, and there was, therefore, an intestacy as to the surplus profits which remained after satisfying the annuities.

M. A. Shee, for the trustees, who also represented the unborn grandchildren. The will was dated as far back as 1849, when the testator did not contemplate the increased value of the estate; the ultimate interest in the whole property, not expressly bequeathed, was intended for the grandchildren.