credit of the cause, I apprehend that that would not vary the rights of the parties. But instead of that being done, inasmuch as it was anticipated that a question would be raised by the mortgagor or the person representing his interest, as to whether the mortgagee was entitled to retain more than six years' arrears of interest, and the executors and trustees of the mortgagee desired to be made safe, some 6007. only was carried to the general credit of the cause, and 2501. was carried to a separate indemnity account, to indemnify the executors and trustees against such claim, if any, as might be raised by the persons representing the interest of the mortgagor. That circumstance can make no difference in the rights of the parties. It is said the money is no longer in the hands of the mortgagees, but in the hands of the Court. That is perfectly true; but it is in the hands of the Court, not as money belonging to the mortgagor, or brought in by him, but as money which is brought in by the mortgagee; and being in the hands of the Court for the mortgagee, it is in effect and in construction, as between mortgagee and mortgagor, in the hands of the mortgagee; as between the trustees under the mortgagee's will and the cestuis que trust, it is in the hands of the Court as an indemnity to those trustees, but, subject to that indemnity, it is in the hands of the mort

gagee.

It is now sought to deal with that money by this petition, which is presented in the cause, and to which, of course, the mortgagor, or the persons representing the mortgagor's interest, are no parties; and by it the trustees ask for the distribution of this fund according to the rights of the parties claiming under the mortgagee's will, but at the same time so to deal with it as to preserve the security intended to be given by carrying it to a separate account. The only way to accomplish that is to give notice to the mortgagor, or the person representing his interest, that they are going to deal with this money, so that if he has any claim he may make it; and, accordingly, the assignee of the mortgagor is served with the petition in order that, if he thinks fit, he may appear and assert his claim. Therefore, it appears to me that the highest ground which the mortgagor

can stand upon, even if it could be put upon that ground, is to say that he ought to be regarded as if he had filed a bill to get back all beyond the principal and six years' interest.

Assuming, then, that he does stand in the position of a mortgagor, after the power of sale has been exercised and the money received by the mortgagee, filing a bill for the purpose of recovering the surplus money, and insisting that there ought to be no more than six years' interest allowed to the mortgagee, does that come within the description in the 42nd section of a suit by which interest is to be recovered"? Could a bill by the mortgagor to get back the surplus money be by any possibility called a suit by which the interest was recovered? I do not know that it would make any difference if the words were "in a suit," but still it is worthy of note that the word used is "by." I am not touching the question whether this petition is a suit, but I am assuming for the moment that it is to be regarded as a suit; in fact I am putting the respondent to this petition in the same position as if he had filed a bill. Surely, according to the plain language of the section, this limitation can only apply to the case where interest is sought to be recovered by a suit, and that must be a suit by the person seeking to recover the interest, and the only person who can do so is the mortgagee. The mortgagor is seeking to recover the surplus after satisfaction of principal and interest, and that at all events is not a seeking to recover interest. Nor, on the other hand, would such a suit as I am supposing for the benefit of the mortgagor be a suit by which the mortgagee, who is the only person who can recover interest, is seeking to recover it. He is holding the money; he has got his interest; it might have been that he had sold the estate for double the amount of principal and all the interest claimed to be due upon it. He has been paid all, and is not seeking to recover anything. How can it be possibly said that the legislature intended to apply this to such a case as I am supposing in favour of the mortgagor,—a suit by the mortgagor to recover the surplus after satisfying principal and interest? It would be perverting the terms of the act to say that it applies to such a case.

I am met, no doubt, by the case of Mason v. Broadbent. That was just such a bill as I am supposing, a bill by the mortgagor, after the money had been received by the mortgagee, to recover the surplus money after satisfaction of principal and interest, and the decision was, that the mortgagee in that case could only retain six years' arrears of interest. After observing upon the question of trust, which I am not at all touching upon at this moment, his Lordship says, "It would be an anomalous state of things to say, that the day before the power of sale was exercised, the sale could have been stopped, and that the mortgagor could have redeemed the property by payment of the principal and six years' interest, but that the day after the sale he is obliged to pay interest from the date of the deed for twelve, thirteen or fourteen years. I am confirmed in this view because the deed subsequently directs the application of the money in payment of the interest on the mortgages, and the surplus, if any, is to be accumulated towards the payment of the principal. I am of opinion, therefore, that this case comes within the principle laid down by Lord Cottenham, in the case of Hunter v. Nockolds, and that it is not a case in which more than six years' interest can be recovered." But there is no observation upon the language of the section which I have been considering. His Lordship's attention does not seem to have been addressed to the question whether the terms of the act applied distinctly to it. He assumes, what might be open to a great deal of argument, that if it were a bill for redemption, the mortgagee would only be entitled to retain, or to have paid to him six years' arrears, and upon that assumption he proceeds to the conclusion, that where the power of sale had been exercised, there could be no difference, and it must still be regarded in the same light as if it were a bill for redemption by the mortgagor. No doubt there is that authority in favour of the mortgagor in this case. But I am bound to say, that I cannot concur in the conclusion that such a case as that which I am supposing in favour of the mortgagor, a bill by the mortgagor to recover the surplus money, comes within the plain import of the language of the 42nd section. appears to me, giving to the mortgagor

It

the benefit of the utmost he could claim, and as a concession in his favour for the purpose of trying the case, that this was a suit by him, and not a mere petition with which he is served in order that he may raise the question if he can; it is impos sible to say that such a suit as that by him would be a suit by which " arrears of interest" were sought to be "recovered."

If I am right so far, that it does not come within the words, does it come within the spirit of the act? It appears to me that it does not, even if I could look at it in that point of view, and strain the words in order to meet it. But we must bear in mind that this is an act of parliament taking away from parties a right which they had before, namely, a right in the mortgagee to have twenty years' arrears of interest paid to him if so much was due. What right has the Court to put a wider construction upon the clause in question than that which the language fairly imports? I apprehend the intention of the legislature was this, that if a mortgagee chooses to allow six years to elapse, and then is obliged to come to a Court in order to get payment of his principal and interest, he shall not have more than six years' interest. Does it follow that the legislature meant to enact that, in case the mortgagor comes to redeem, who, after all, it must be recollected has lost his legal estate by the period for the payment having passed, and who has only an equity to come here, he is to be entitled to ask the Court, when it gives him this equitable aid, that although he has not paid any interest for considerably more than six years past, he shall be relieved upon payment of only six years' arrears? I really do not see the justice of importing such an interpretation into that section. When I look at the terms of the act, it appears to me clear that the legislature only intended it to apply to a case in which a suit was instituted, by which suit the interest was, or was sought to be recovered.

For these reasons, with all deference to that decision, I am bound to say, that I cannot concur in it, and therefore I must hold that the mortgagees in this case are not limited to six years' arrears of interest.

This was a petition, by the trustees of an estate, the subject of an administration suit, in which they were plaintiffs, for the payment out of court and re-investment in land of the purchase and compensation. monies for part of the estate which had been taken by the Portsmouth Railway Company, under the powers of their act of 1853.

These monies had, under an order of the Court, of February, 1857, been paid into the Bank, to the credit of the cause "real estate," not to be paid out or otherwise disposed of without notice to the company. But by some inadvertence, as was alleged, the account had not been entitled in the matter of the act as well as in the cause. The petition was entitled in both matters; but under the circumstances above mentioned, the question was raised, whether the parties now appearing upon it could get their costs against the company.

A testator by his will, executed in England and in the English form, gave legacies to the younger children of his deceased daughter. By a settlement of prior date, made in the Scotch form, upon his daughter's marriage, he had covenanted to pay to trustees a principal sum, to be divided, after the death of the parents, among the younger children of the marriage. The obligation was never satisfied in his lifetime, and no reference to it was contained in the will. The legacies were in excess of the portions which would have arisen from the settlement:-- Held, that the testator placed himself in loco parentis, and, the will being construed according to English law, the legacies were to be taken in satisfaction of the provisions contained in the settlement.

Hume.

By a settlement or "contract of marriage," dated the 12th of February, 1834, and made in the Scotch form upon the marriage of his daughter with Capt. A. Campbell, Dr. Hume bound himself, his heirs, executors and successors, to pay to the trustees therein named, upon the day of the marriage, the principal sum of 4,000l., the interest to be "life-rented," by himself during his life, and after his death by Capt. Campbell and his intended wife and the survivor of them, and after the death of the survivor the capital or "fee" to be divided in certain proportions among the younger children of the marriage; and he declared that the above provision "conceived in favour" of his daughter was to be accepted by her in

full satisfaction of her "legitim" or "portion natural," and also that the provision "conceived in favour of" the children was to be in satisfaction of "all bairns' part of gear, legitim portion, natural executry and everything else they could ask or claim through the decease of" their father and mother.

Mrs. Campbell died in the lifetime of her father, leaving issue of the marriage five children, one of whom had since died.

Dr. Hume died in March, 1857.

By his will (which was executed shortly before his death in the English form, and afterwards proved in the Prerogative Court of Canterbury) he constituted the eldest son of the marriage (who was also entitled under the settlement to certain entailed estates) his residuary legatee, and bequeathed a sum of 5,000l. to each of the younger children being daughters, and 6,000l. to the remaining younger child being a son.

The testator had not in his lifetime paid to the trustees of the settlement the sum of 4,000l. pursuant to his obligation, nor was any specific provision contained in the will for satisfying it. The question therefore arose, whether the above legacies were to be accepted by the legatees in full satisfaction of the testator's obligation under the settlement, or whether the sum of 4,000l. was still payable, and if so, whether it should be paid out of the residue or deducted from the legacies rateably.

The cause was brought on by way of motion for decree. It was stated that, according to the opinion of Scotch counsel, the obligation to pay the 4,000l. still subsisted in the nature of a debt against the testator's estate, and that the surviving trustee of the settlement ought to demand payment from the executors. As to the testator's intention, certain parol evidence was adduced to the effect that in giving instructions for a former will, he had expressly declared the legacies intended to be thereby given to his grandchildren to be in satisfaction of the obligation contained in the settlement.

Mr. Rolt and Mr. Pember, for the executors of the will.-The testator placed himself in loco parentis, and the presumption of law against double portions must take effect

WOOD, V.C.-If I had to determine this case with reference to the law of Scotland, it might present some difficulty, because, as was held in the case of Kippen v. Darley (1), before the House of Lords, by the law of that country there is no general antecedent presumption against double portions. But I am clearly of opinion, that this will is to be construed by the principles of English law, and I think there can be no doubt that the testator intended to place himself in loco parentis, as to the future. provisions for his grandchildren, both in the settlement and in the will. Accordingly, out of that relation the presumption of our law against double portions will arise. The case is in fact stronger than Powys v. Mansfield. I shall therefore declare that "the provisions made by the testator in favour of his grandchildren mentioned in the will are to be taken in satisfaction of the provisions made by the settlement of February 12th, 1834. Costs of all parties to come out of the fund."—I may add, that it is satisfactory to me to know that this decision is in accordance with the views and wishes of all the parties.

(1) 3 Macq. 203.

Before the Divorce Act (20 & 21 Vict. c. 85.) an English marriage was indissoluble; and the decree of a foreign Court, purporting to dissolve such marriage, will be treated by an English Court as a nullity. In an English instrument "children will be construed, unless otherwise explained by the context, to mean children lawfully begotten.

B, an Englishman, was married in England to H, an Englishwoman. S, a friend of H, with the concurrence of H, induced B, for a pecuniary consideration, to go to Scotland, and reside there for forty days, in order to give the Scotch Court jurisdiction to entertain a suit against him by H. for a divorce. The suit was instituted, and a decree of divorce, on the ground of adultery, was pronounced by the Scotch Court in 1846. Shortly afterwards, a marriage was solemnized in Scotland between S, who was domiciled in Scotland, and H; and three children of such marriage were born in Scotland during the life of B-Held, that the Scotch divorce was null and void, and consequently the marriage of S. and H. was invalid, and their children were illegitimate; that neither S. nor H. were justifiably ignorant of the subsistence of the prior marriage, notwithstanding the divorce, as an impediment to their marriage; and that even if either S. or H. had been so ignorant (in which case their children would have been legitimate according to the law of Scotland, notwithstanding the invalidity of the marriage), their children could not take under an English will either real estate devised to the children lawfully begotten of H, or personal estate bequeathed to the children of H.

These were two petitions relating to two sums of 1,8931. and 8281. consols, transferred into court under the Trustee Relief Act, the former sum representing a moiety of the residuary personal estate of John NEW SERIES, 35.-CHANC.

Wilson, and the latter representing the produce of part of his real estate sold under a power of sale in his will.

John Wilson, a domiciled Englishman, by his will, dated the 27th of February, 1832, gave a moiety of his residuary personal estate in trust for his greatniece, Elizabeth Hickson, for life, and after her death in trust for her children or issue as she should appoint, and in default of appointment in trust for "all and every the children and child of his great-niece at twenty-one or marriage in equal shares ; and in case she should not have any child or issue who under the trusts thereinbefore declared should become entitled to the said moiety, then in trust for the testator's nephew, Ambrose Moore, his executors, administrators and assigns. And the testator devised his real estate to the use of trustees during the life of Elizabeth Hickson for her separate use; with remainder to the use of trustees for the term of 500 years, upon trusts for raising portions for the younger children of Elizabeth Hickson; with remainder to the use of the first and other sons of the body of Elizabeth Hickson "lawfully begotten or to be begotten" successively in tail; with remainder to the use of the daughters of the body of Elizabeth Hickson lawfully begotten, as tenants in common in tail; with remainder to the use of Ambrose Moore for life; with remainder to the use of the first and other sons of Ambrose Moore successively in tail, with divers remainders over.

The testator died in October, 1835.

On the 10th of June, 1828, Elizabeth Hickson, who was then an infant of the age of sixteen, and lived with her step-father at Stenson, in Derbyshire, was married at Manchester to Thomas Buxton, who also lived at Stenson. Immediately after the marriage ceremony, she was separated from her husband, and never lived with him afterwards. Buxton was convicted of procuring the marriage by fraud and conspiracy, and sentenced to three years' imprisonment.

In 1830 a bill was introduced in the House of Lords to have the marriage declared null and void; but as it appeared that Elizabeth Buxton had consented to the marriage, the bill was withdrawn.

In 1838 a separation deed was executed between Thomas and Elizabeth Buxton, by

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