require, wherever a testator speaks in his will of the happening of events such as the present, or of persons, or of the status of persons, that his will should be taken to speak from the date of its execution and not from his death.

THE VICE-CHANCELLOR Sir W. PAGE WOOD. A will must be construed to speak and take effect from the death of the testator, unless a contrary intention appears by the will; and the only question I have to consider in this case is, whether the words used by the testator in his will are strong enough to shew that he did not intend his will to take effect from his death.

Looking to all the circumstances of the case-that the testator's daughter married after the date of his will and before his death; that the testator was aware of that circumstance; and that, notwithstanding he was so aware of it, he left his will, in which he had given the interest of [319] this property to his daughter for her life or until her marriage, and after her decease or marriage to her children, unaltered, I cannot say that the testator did not purposely leave his will unaltered that he did not purposely leave it to operate upon the state of circumstances as they stood at the time of his death.

It is quite consistent with this view to admit that, at the time when the testator was penning this instrument, his intention was to prevent his daughter from marrying, as she has done, a third husband; but the testator must be presumed to have known the law, that a will speaks from the death of the person making it, and to have been content to leave his will to speak from the date of his death.

In the case in Ireland, West v. Kerr, it is difficult to see how any question could arise as to the construction to be put upon the limitation, the subject of the suit. In that limitation there were two circumstances, neither of which occurs here. The person to whom the annuity was given was described by the testator in his will as "the widow of my nephew;" and the testator directed the annuity to be paid to her "so long as she shall continue single and unmarried;" so that the claimant, who had married again between the date of the will and the testator's death, in no way answered the description or fulfilled the condition which alone could have entitled her to claim. The case of Willing v. Baine does not at all apply to the case before me. There it was immaterial for the purpose of the testator's will whether the event, upon the happening of which the gift over was to take effect, occurred in his lifetime or after his decease. The circumstance of its occurring during his life placed him under no necessity of altering his will, in order to carry out his original intention in favour of those in remainder. Whereas here the difficulty is that, although the marriage of the testator's daughter had a [320] material bearing upon his original intentions in favour of her children, the testator, notwithstanding that marriage, left the bequest in her favour unaltered, so as, in terms, to operate during her life, or until she should contract a fourth marriage. Whether the case were one under the old or under the new law in regard to wills, the question to be decided in such a case would be, whether the testator, having so left his will unaltered, with a full knowledge of all the circumstances, the Court is not bound to hold that he did so purposely, and with the intention that it should be construed so as to speak from his death.

I must answer the question in that form, that this lady takes for her life, or until she marries again.

Declare that the Defendants, the children, are entitled to the capital of the £1200, in the shares mentioned in the testator's will, in remainder expectant upon the death or marriage of the Defendant, Mary Ann Morris.

Declare that the Defendant, Mary Ann Morris, is entitled to the income of the £1200 during her life or until her marriage.

[321] COTTON v. SCUDAMORE. Feb. 10, 1855.

Vendors and Purchasers. Title-Deeds retained. Costs of attested Copies.

Where, by the conditions of sale, it is agreed that the vendor shall retain the titledeeds, "and that a covenant will be entered into for the production of such of them as are not enrolled, and for giving attested or other copies thereof to the respective purchasers at their expense," a purchaser has not, on completion, a right to attested copies at the expense of the vendor.

The Defendant contracted to purchase lands of the Plaintiff subject to certain conditions of sale, one of which was as follows:-"As the title-deeds of the property comprised in this particular of sale relate to other property of greater value, the vendor shall retain the custody thereof, and a covenant will be entered into for the production of such of them as are not enrolled, and for giving attested or other copies thereof to the respective purchasers at their expense."

The Defendant refused to complete his purchase, unless the Plaintiff consented to comply with a requisition made on behalf of the Defendant to the effect that attested. copies of the title-deeds to be retained in the custody of the Plaintiff, as stipulated by the conditions of sale, should be delivered to the Defendant at the Plaintiff's expense, on the completion of the purchase.

The Plaintiff filed a claim for specific performance of the contract.

Mr. Hetherington, for the Plaintiff, contended that the costs of the attested copies to be delivered on completion should be borne by the purchaser, who had notice, by the conditions of sale, that he was not to have the title-deeds, and must, therefore, have foreseen that he would have to bear the expense of procuring copies; so that he must be taken to have regulated his bidding accordingly. This was the rule laid down by Lord Eldon in Boughton v. Jewell (15 Ves. 176).

[322] Mr. James, Q.C., for the Defendant. Where a purchaser cannot have the original title-deeds he is entitled to attested copies of them at the expense of the vendor. This is the broad rule, and, if the vendor intends to protect himself from its operation, he must expressly and clearly stipulate, by the conditions of sale, that the expense of attested copies is to be borne by the purchaser. (1) This the Plaintiff has not done. The stipulation contained in the conditions of sale is restricted to attested copies to be furnished at a future time, in performance of the covenant which, in pursuance of that condition, the Plaintiff is to enter into when required by the purchaser. But the right of the purchaser to the attested copies, the subject of his requisition, is altogether independent of the covenant. It arises immediately upon completion, and before the covenant is entered into.

A reply was not heard.

THE VICE-CHANCELLOR Sir W. PAGE WOOD. Independently of the high authority of Lord Eldon, it is clear there is sound sense in the observations which have been cited from the report of Boughton v. Jewell: "If the purchaser had no intimation that he could not have the deeds, he is entitled to attested copies at the expense of the vendor; as, if he had notice that he was not to have the deeds, he would regulate his bidding accordingly, conceiving that he was to bear the expense of procuring copies." The present case goes further than that put by Lord Eldon. Here the purchaser not only had notice that he was not to have the deeds, but the vendor expressly tells him, "I mean [323] to retain the deeds, but, nevertheless, I will do something for you, I will enter into a covenant to give you attested copies." He says, in effect, "You will get my covenant, but nothing else." This is clearly the meaning of the condition. The construction attempted to be put upon it by the purchaser would amount to this: that he is, in the first instance, to have attested copies at the vendor's expense, and then, if he loses those, or has some extraordinary demand for duplicates, is to have

(1) Lord St. Leonards' Vendors and Purchasers, pp. 38, 475. And see Dare v: Tucker, 6 Ves. 460.

V.-C. XIV.-16

others at his own expense by force of the covenant-a construction which seems to me far too forced and unnatural to be adopted.

I quite concur in the remark of Lord Cottenham, C., that the Court will, wherever it is possible, discourage catching stipulations in conditions of sale; but here there is no stipulation of that description.

There must be a decree for specific performance, with costs.

[324]

15 & 16 Vict. c. 80, s. 34.

DEWELL v. TUFFNELL. (1) Feb. 14, 1855.

Order 51, of 16th October 1852. Certificate. Sub-Purchase.

After a certificate of purchase under a sale by the Court has become binding by the lapse of eight days since the signature thereof by the Judge, the purchaser is considered to be so far the absolute owner that he may sell at an advanced price for his own benefit.

On the 7th of November 1854 Warde was certified to be the purchaser, at £1460, of Lot 2 of certain estates which the decree in the cause directed to be sold. The certificate was approved by the Vice-Chancellor on the 8th of November 1854, and became binding on the 17th of November 1854. (15 & 16 Vict. c. 80, s. 34; 51st Order of 16th of October 1852.)

On the 20th of November 1854 a provisional agreement was entered into by Wilkinson, as agent of Warde, with M'Whinnie, to make over Warde's contract to M'Whinnie at an advance of £140 on the original price, which agreement, with a slight variation in the terms, was afterwards adopted by Warde.

On the 10th of January 1855 Warde took out a summons, in the usual form, for leave to pay in his purchase-money and to be let into possession, and that all proper parties might be ordered to join in and execute a proper conveyance and assurance of the purchased premises to Warde, or as he should direct. This summons was supported by affidavits of M'Whinnie and Warde, stating the circumstances in detail. The affidavit of Warde negatived any contract or understanding whatever between the parties before the 20th of November, and stated expressly that there was not any fraud or collusion whatever between Warde and M'Whinnie; and that there had not been, and was not, any under-bargain between them, unless the circumstances thereinbefore stated amounted to an under-bargain.

The Chief Clerk declined to grant the order, on the [325] ground that it was in substance an application to substitute a purchaser without the usual affidavit of no sub-contract.

The application was heard by the Vice-Chancellor, in Chambers, on the 14th of February 1855, when Mr. Wickens, on behalf of Warde, argued that, after the certificate became binding (which was assumed to be equivalent to absolute confirmation under the old practice), the purchaser was, to all intents and purposes, owner of the estate, and entitled to deal with it as he pleased; that the rule was assumed to be so in Sugden's Concise View of the Law of Vendors and Purchasers, p. 51, and 2 Dan. Ch. Pr. 2d ed. p. 1205, and in all the other text-books, as well as by Sir John Leach in Hodder v. Ruffin (Tamlyn, 341); that nothing contrary to this view was to be found in Rigby v. M'Namara (6 Ves. 515) or Holroyd v. Wyatt (2 Coll. 327); that in Rigby v. M'Namara the reference to opening biddings (which, after confirmation absolute, cannot be opened unless on special grounds: Morice v. Bishop of Durham (11 Ves. 57)) shewed that the rule there laid down was not intended to apply to a case like that in question; and that the fact of an affidavit of no sub-contract being always required in practice on an application to substitute a purchaser after confirmation absolute must be referred either to an obsolete practice of substituting a purchaser before confirmation, or to the necessity of proving that no contract or understanding subsisted until after the report was absolutely confirmed.

No counsel appeared on the other side.

(1) Ex relatione Mr. Wickens.

On the 24th of February 1855 the Vice-Chancellor (in Court), after referring to Hoddler v. Ruffin (Tamlyn, 341), held Warde entitled to the order asked for by his

summons.

[326] THE AFRICAN STEAMSHIP COMPANY v. SWANzy and Kennedy.(1) 1855. [For subsequent proceedings, see 2 K. & J. 660.]

Merchant Shipping Act, 1854, Part 9. Injunction. Form of Order.

Form of order made on motion for injunction, in a suit by a shipowner, to restrain actions for damage occasioned by loss of the ship and cargo, under the provisions of the Merchant Shipping Act, 1854, Part 9.

The African Steamship Company's ship, the "Forerunner," on the 25th of October 1854 struck upon a rock near the island of Madeira and was totally lost.

At the time of her loss she had on board her crew, various passengers with their luggage, and a cargo of considerable value, belonging to different persons; and of the passengers on board three were lost. Eleven of the crew were also lost, and the cargo and the luggage were lost.

The Defendant, Swanzy, was the owner of part of the cargo; and on the 19th of January 1855 he commenced an action, in the Court of Common Pleas, against the Plaintiffs for the recovery of the value of such portion of the cargo.

The Defendant, Kennedy, was one of the passengers on board the "Forerunner" at the time of her loss; and on the 16th of January 1855 he also commenced an action against the Plaintiffs, in the Court of Common Pleas, for the recovery of the value of his baggage and other property on board the "Forerunner," which were lost at the same time.

The Plaintiffs, by their bill in this suit, admitted, "for the purpose of this suit," their liability in respect of the loss of the "Forerunner," to the extent and in the manner mentioned in the Ninth Part of the "Merchant Shipping Act, 1854," that is to say, they admitted that they were answerable in damages to the extent of the value of the ship and freight due or to [327] grow due in respect of such ship during the said voyage; and they further admitted that the value of the said ship and freight was insufficient to answer all the claims which had been made, or might be made, against the Plaintiffs in respect of such loss; and they stated that the value of the ship and freight exceeded the sum of £15 per registered ton; and that the bill was not filed in concert or collusion with the Defendants or either of them, or with any other person or persons, but solely to obtain for the Plaintiffs the benefit of the limitation of liability prescribed by the said Act.

The bill prayed that the value of the said ship and freight might be ascertained in such manner as the Court should direct, the Plaintiffs undertaking to pay the amount of such value into Court; and in the meantime, if the Court should think fit, to give security for such payment as the Court should direct; and that all proper directions might be given for ascertaining the persons who had, or alleged they had, any claim against the Plaintiffs in respect of the loss of the said ship; and that proper directions might be given for the exclusion of any claimant who should not come in within a certain time; and that the value of the said ship and freight might be apportioned by this Court between the persons who should establish their claims, and in proportion to the amount thereof; and that the Defendants might be restrained by injunction from prosecuting the actions commenced by them respectively against the Plaintiffs, and from commencing or prosecuting any other action or actions in respect of the loss of the said ship.

The Plaintiffs now moved for an injunction accordingly.

Mr. Rolt, Q.C., and Mr. Cairns, for the Plaintiffs.

Mr. W. M. James, Q.C., and Mr. Cole, for the Defendant, Swanzy.

[328] Mr. Giffard, for the Defendant, Kennedy.

(1) See Hill v. Audus, supra, p. 263.

Some discussion took place as to the form of the order, the minute of which was ultimately settled as follows:

Order that the managing director of the Plaintiffs, the company, should make an affidavit as to the value of the ship and cargo, having regard to the Act of Parliament, the value so proved to be paid into Court within a month. The injunction to be granted. Advertisements to be put into the papers to discover who were the claimants. Inquiry as to the value of the ship and freight. Inquiry how such value ought to be apportioned among the Defendants and the several other persons who should establish claims. Adjourn further consideration. Reserve costs. Liberty to apply.

[328] BRODRICK v. BROWN. Feb. 19, March 6, 1855.

[See Hall v. Bromley, 1887, 35 Ch. D. 648.]

Power of Appointment. "Instrument." "Executed." Cheque. Letter.

Extrinsic Evidence.

A bequest of personal property to three trustees, A., B. and C., "upon trust to dispose of the same in whatever way A. shall, by any deed or deeds, instrument or instruments, or by his will, appoint; provided that no such deed, instrument or will shall be taken to be an execution of this power, unless the said deed, instrument or will be executed after my decease;" and, subject thereto, upon trust for A. for life: Held, to be a power exerciseable by an instrument in writing, whether a deed or not, if such instrument sufficiently referred to the power or to the property subject to it, or if it made a general gift and the appointor had no property of his own to which it could refer.

A written order, directed to the trustees of the fund, would be a good exercise of this power.

If the donee of the power was also the sole trustee of the fund a cheque upon a banker where the fund was lying would be a good appointment, if he had no money of his own there.

So, also, would a letter from him referring to the power or to the property, and accompanying a gift of money, which it stated to be in pursuance of the power or out of the property.

Various examples of this last kind of appointment.

In the case of a series of appointments of this kind one letter stated only that the payment which it accompanied was made "in fulfilment of the known wishes" of the donor of the power. Held, that this was an ambiguity that might be explained by reference to other documents which shewed that the gift was intended to be in exercise of the power.

Clara Sutcliffe made her will, dated in 1851, as follows:

"This is the last will and testament of me, Clara Sut-[329]-cliffe, of the City of Bath, spinster: whereas it is my chief desire and intention that my dear and only brother, William Sutcliffe, should, in the event of his surviving me, have the sole and entire enjoyment of all my property of every description, and the fullest power of disposing thereof after his death, according to his sole will and pleasure; but I am desirous of providing for the contingencies of his dying before me, or too soon after me to exercise the aforesaid power. I do hereby give, bequeath and devise all my property of every description as follows, that is to say: whereas a certain debt of £10,000 is owing to me from my brother, and secured by a mortgage bearing date on or about the 28th day of May, in the year of our Lord, 1830, I direct that my debts and funeral expenses shall be paid out of the said sum of £10,000, and the residue of the said sum, together with all my other property of every kind, I give to my brother William Sutcliffe aforesaid, John Kidston, Doctor of Medicine, William Robertson, Doctor of Medicine, and Robert Hunter Brown, late a captain in the Honourable East India Company's service, all of the City of Bath, and the survivor of them, and the executors, administrators and assigns of such survivor, upon the following trusts :