reference to these sums, that the receipt for the first *sum did not cover the amount which was deducted in respect of Andrew Duncan's debt; but I think this point is as untenable as the last. The parties had the right to receive the amount which was deducted. In the receipt they dealt with it as a sum deducted in effect, in the same manner as if the debt had been paid to Shuter and repaid by him. It could not be necessary for them to go through the mere form of the payment and repayment being actually made. The only remaining question is as to the right of the plaintiff to have the life income retained to make good the value of her contingent annuity. I do not think that this point is altogether free from difficulty; but the conclusion at which I have arrived upon it is, that the decree is right in this respect also. The equity. contended for did not exist before the bankruptcy of Andrew Duncan. Upon his bankruptcy the whole of his interest under the settlement passed to the assignees. The statute has given a right of proof against his estate; but I think this right of proof cannot be held to have created an equity which had no antecedent existence. For these reasons I am of opinion that this appeal must be dismissed with costs. CARVER v. BURGESS. (7 D. M. & G. 96-97.) [A note of this appeal affirming the decision of the MASTER OF THE ROLLS will be found at the end of the report below in 104 R. R. 518 (18 Beav. 541), see 104 R. R., P. 522.] MARTIN v. FOSTER (1). (7 D. M. & G. 98-103; S. C. 24 L. J. Ch. 519; 1 Jur. N. S. 337; 3 W. R. 339.) March 16, 29. Under the old law of husband and wife the mere fact of marriage with a female ward of Court, without the Court's consent, was held to confer upon the Court a jurisdiction to decline, during the joint lives of the husband and wife, to part with a fund in its own power and custody belonging to the ward, even upon the application of the husband and wife upon the consent of the wife in Court, until such settlement should have been made thereof as should appear advisable and proper under the circumstances of the case. THIS was an appeal from an order made by Vice-Chancellor KINDERSLEY upon a petition presented to him by a husband and wife, who had married without first obtaining the sanction of the Court, the lady being at the time an infant ward of Court. (1) This case has little (if any) modern application, since by the Married Women's Property Act, 1882, a ward is now entitled to her own property as if she had remained unmarried and can dispose of it absolutely on attaining 21. The Infants Settle- KNIGHT BRUCE, TURNER, L.JJ. [98] The petition prayed that, pursuant to an agreement for a settlement made upon the marriage, 1,000l., part of a sum of 2,5191. 28. 3d., stock standing in Court to the credit of the wife in the above-mentioned cause, might be paid to the trustees of the marriage settlement, upon the trusts thereof for the benefit of the wife and the children of the marriage (if any); and that the remainder of the stock, together with a sum of 695l. 18s. 2d. cash, also in Court to the credit of the lady in the cause, might be paid, after deducting the costs, to the husband. The petition was presented shortly after the lady came of age, her interest in the funds in Court (which, by an order of the COURT, was declared to be contingent upon the happening of that event) having thereupon become a vested interest. The husband had made no settlement of property of his own, and it appeared that the only property of which he was possessed in his own right was a salary of 2001. a year which he earned as clerk to certain hop merchants, *and a leasehold brewery at Norwood valued at 1,500l., and producing an annual rental of 1001. The wife appeared both before the Vice-Chancellor and before the Court of Appeal, for the purpose of giving her consent to the application of the funds in Court according to the prayer of the petition. By the order appealed from, the VICE-CHANCELLOR, on the ground that the marriage, without applying for the consent of the Court, was a contempt of Court on the part of the husband, and that such contempt was left unexplained, directed that the whole sum of stock in Court should be settled upon the wife and children (if any) of the marriage in the usual manner, and the sum of cash paid to the husband, after deducting the costs. In support of the petition of appeal, affidavits were produced and read on behalf of the petitioners, from which it appeared that at the time when the husband contracted to marry his wife, in 1852, he was not aware that she was entitled to the funds in question, or to any other property; that, on ascertaining that fact, he made inquiries of the solicitors for the plaintiff in the suit whether the lady was a ward of Court; that he was informed by the solicitors. that she could not be considered a ward of Court, and that he might safely marry her without applying to the Court; that he thereupon married her in January, 1853, with the consent of her 'mother and the trustees of the will, having, previously to the marriage, written a letter undertaking, in the event of her becoming entitled to the funds in Court, to settle 1,000l., part thereof, to her separate use; and lastly, that upon the lady attaining her majority, a settlement in conformity with such antenuptial agreement had been prepared, and that the petition to the Vice-Chancellor *had been presented for the purpose of carrying it into effect. Mr. Roupell and Mr. W. D. Lewis, in support of the appeal. * Mr. Speed, for the plaintiffs, was not called upon. THE LORD JUSTICE KNIGHT BRUCE: Upon the question of jurisdiction I entertain not the slightest doubt. It is a point with which the nature of the contempt, whether criminal in fact and substance, or only so technically, has nothing to do. The jurisdiction arises from the mere fact of the marriage of a ward of Court without the consent of the Court. The manner or extent in which or to which the husband shall be punished, or whether he shall be punished at all, must of course depend upon the circumstances of each particular case. In this instance there has been nothing substantially criminal, nothing immoral. There were, no doubt, good intentions on all sides, but that took place which gave the Court jurisdiction over the husband and wife; a jurisdiction not capable of being removed by the mere consent of the wife, whether of age or not of age. The case may stand thus: that it may not be in the power of the Court or correct to enforce a settlement against the wishes both of the wife and husband. That is a point upon which at present I decline to give any opinion; but the Court clearly has this jurisdiction, viz., to decline parting with the capital of a fund within its own power and custody, belonging to the wife, even *upon the application of both, and the consent of the wife in Court during their joint lives, until such a settlement shall be made as the Court may think advisable and proper under the circumstances. I repeat, there fore, that I do not mean to say now that a settlement is to be forced upon the gentleman and lady, but this I mean most distinctly to say, so far as I am concerned, that, without a settlement discreet and proper under the circumstances being made, not one shilling of the capital of the fund shall, during the joint lives, be touched with my consent. THE LORD JUSTICE TURNER: My opinion coincides with that of my learned brother upon the question of jurisdiction. The case of Austen v. Halsey has always seemed to me to be an authority decisive upon that point. My view of the case is this, that the marriage is a contempt of the Court, a contempt indeed often overlooked, but still creating a jurisdiction over the husband which is capable of being enforced against him at any time, and which cannot be removed by the wife's consent to the fund being paid to him. When she consents MARTIN 0. FOSTER. [ *100 ] [101] [ *102 ] to such payment she, in effect, asks that the payment may be made to a person who is in contempt, and the Court exercises its discretion whether it will make the payment or not. In exercising this discretion the Court, as I apprehend, is guided by the consideration of what is most for the benefit of the wife and children, and as a general rule I take it the Court will give its sanction to any arrangement which a prudent father would approve of. THE LORD JUSTICE KNIGHT BRUCE: It seems highly probable that I shall not be induced to accede to a settlement by which 1,000l. only of the *lady's fortune shall be settled upon her, and all the rest of her property become that of her husband. RABY v. RIDEHALGH (1). (7 D. M. & G. 104–111; S. C. 24 L.J. Ch. 528; 1 Jur. N. S. 363 ; 3 W. R. 344.) The trust was created by a codicil to the will of William Raby, dated the 8th of May, 1830, whereby he gave one moiety of the residue of his real and personal estate to George Lewis Ridehalgh and Peter Roylance upon trust for the testator's son William Raby the elder during his life, and after his death upon certain trusts for the benefit of his children; and the other moiety to the same trustees for the testator's other son John Spencer Raby the elder during his life, and after his death upon certain trusts for the benefit of his children, but there were no powers or directions for the investment of the personal (1) In re Somerset, Somerset v. Earl Poulett [1894] 1 Ch. 231, 63 L. J. Ch. 41, 69 L. T. 744, C. A.; Mara v. Browne [1895] 2 Ch. 69, 64 L. J. Ch. 594, 72 L. T. 765 (revd. [1896] 1 Ch. 199, 65 L. J. Ch. 225, 73 L. T. 638, C. A.); Chillingworth v. Chambers [1896] 1 Ch. 685, 65 L. J. Ch. 343, 74 L. T. 34, C. A.; Moxham v. Grant [1899] 1 Q. B. 480, 68 L. J. Q. B. 283, 80 L. T. 356 (affd. [1900] 1 Q. B. 88, 69 L. J. Q. B. 97, estate. After the death of the 81 L. T. 431, C. A.). Trustees may now invest their trust funds on mortgage unless forbidden by the trust: see the Trustee Act, 1893, s. 1.-O. A. S. (2) The interests of beneficiaries may be impounded in certain cases to indemnify their trustees against loss arising out of breaches of trust to which the beneficiaries were parties: see Trustee Act, 1893, s. 45.-O. A. S. testator in 1832, the trustees invested part of the personal estate, RABY V. amounting to 15,495l., in mortgages on real estates which ulti- RIDEHALGH. mately turned out deficient. In 1844 William Raby the elder and his children filed a bill against the trustees, charging them with a breach of trust in investing on insufficient securities, and seeking *to make them liable for the deficiency. The bill was afterwards amended by naming William Raby the elder as a defendant and leaving his children sole plaintiffs. He had since died. The trustees alleged in their answer that the tenants for life had themselves induced them to make the investments complained of; and at the hearing of the cause a reference was directed to the Master to inquire as to the particulars of the investments, and whether they had been made at the instance or request or with the authority of the tenants for life. The Master by his report, which had been confirmed, found that there was a deficiency of 1,8957. in the trust estate, of which 635l. had been paid to the tenants for life out of the capital, and 1,260l. arose from loss occasioned by the insufficiency of the securities. He also found as follows: "And I do not find that such particular investments or any of them, were or was made at the instance.or request, or with the authority of the defendant John Spencer Raby the elder, and the late defendant William Raby the elder, or either of them, but I find that it was the intention of the trustees to invest in the public stocks or funds, the whole of the trust monies. in their hands as the trustees of the will of the testator, and that at the instance and request of the defendant, J. S. Raby the elder, and the late defendant William Raby the elder, who were anxious to secure as large an income as they could, such intention was abandoned, and that it was also at their instance or request arranged, that the said trust monies should be advanced and lent upon mortgage so as to secure a higher rate of interest than could have been obtained by investing the same in the public stocks or funds; and I find that the said John Robinson, to whom the said. trustees referred the said John Hall (1), as aforesaid, *and who subsequently acted in, and relating to, such several advances and mortgages or securities as are herein before mentioned, was employed and acted for the said trustees in and relating to such several mortgage transactions as aforesaid with the general privity and concurrence of the defendant J. S. Raby the elder, and the late defendant W. Raby the elder, and that they were respectively aware, that mortgages had been taken and were from time to time. being taken by the said trustees for different portions of such trust monies as aforesaid under the advice of the said J. Robinson, (1) One of the mortgagees. [ *105 ] [*106] |