any difference if only one person had been the buyer of all the goods? There has been also a deposit paid before the fiat, and that may be considered as a part payment by the purchasers. At all events, as regards the deposit, the execution creditor is entitled to that as money paid before the fiat. Hill was not heard in reply. WILDE, C. J.-I am of opinion that the plaintiffs are entitled to the whole amount they claim. The 108th clause of the Bankrupt Act, 6 Geo. 4, c. 16, has received a construction, adopted by the Court in every case, that an execution, to be a protection under that clause, must have been executed in the sense of making the execution creditor cease to be a creditor holding a security for his debt. The Courts seem to have decided, that, when an execution has been executed within the meaning of that clause, the creditor is in the same position as one who has had his debt paid; but that up to that time, and while he is upholding his security, he is not to be at liberty to use it for his own exclusive advantage, but only rateably with the other creditors. Now, applying this principle to the present case, I think the defendant was at the time of the fiat a creditor holding security, because the property which had been seized under the execution had become, in law, a security to him for his debt, but it had not made him cease to be a creditor of the bankrupt. The law then says, that such creditor shall not use his security for his own benefit. It is contended, that because the goods remained subject to certain contracts of sale a distinction is created. But how is that? Does it make the defendant cease to be a creditor before the fiat? It seems to me that there is no ground for holding that the contracts of sale have extinguished any part of the debt, or removed the creditor from his position of creditor of the bankrupt; neither do I see any distinction as to the deposit-money of 931. 10s. It is true, that it was received before the fiat, but under circumstances which gave no other interest in it to the defendant than a security under the execution, and it remained in the same position as the goods in respect of which it had been paid. The plaintiffs are, therefore, entitled to recover the whole proceeds of the sales. COLTMAN, J.-There was, originally, some difficulty in construing this section of the act, but that is now pretty well understood. Looking at the state of things at the time of the fiat, the sheriff here held the goods as security for the creditor, and the defendant had not, therefore, ceased to be a creditor with a security. As regards the deposit, I think that the auctioneer held that money, not as a payment by the purchasers, but as money received by a stakeholder, until the contracts of sale had been completed. CRESSWELL, J.-I am of the same opinion. There was here no perfect sale before the fiat, but only an in choate one. WILLIAMS, J., concurred.-Judgment for plaintiffs. PREROGATIVE COURT. In the Goods of G. GIBSON.-July 3. Practice-Service of Decree. A Decree with Intimation was served by leaving a true Copy in the House, and with the Daughter of the Person cited, who was dangerously ill :-Held a sufficient Service. A decree with intimation issued against several persons, and was personally served on all except one, with respect to whom the officer of the court made the following return :-"And I further certify, that on the same day, and at the same time and place, I attended for the purpose of executing this decree on the withinnamed Harriet Gibson, widow, when I was informed by the said Miss Emily Gibson, and also by the said Miss Elizabeth Poindester, that the said Mrs. Gibson was confined to her bed by severe illness, and I could not see her; that her medical attendant, Mr. Swann, had directed that she should not be disturbed, and that anything tending to excite her mind might prove dangerous. That I thereupon handed a true copy of this decree to the said Miss Emily Gibson, with a request that she would give it to her mother at the first opportunity, which she promised me she would do." Blake, no appearance being given, moved the Court to decree an administration limited, for the purpose of carrying on proceedings in Chancery; the service of the decree being, under the circumstances, sufficient. Sir H. JENNER FUST granted the motion. ECCLES and Others v. HARRISON and Others.-July 3. A Will was opposed on the Ground of Incapacity. Four Allegations were given in, and several Witnesses examined, but Publication had not passed. On a Proxy of Consent from the opposing Parties, the Court granted Probate of the Will, but refused to make any Order as to Costs. This was a cause of proving the last will of L. Harrison, promoted by the guardian of the residuary legatees therein named, against the next of kin of the deceased. Four allegations were given in in the course of the suit, and a great number of witnesses examined, when terms of compromise were agreed upon between the several parties in the cause; and the proctor for the next of kin alleged, under a special proxy, that he proceeded no further, and consented that letters of administration with the will annexed should be granted to the guardian of the residuary legatees. Addams, for the guardian, applied for the grant. Jenner, for the next of kin, consented. It was further prayed that the costs of all parties be paid out of the estate. Sir H. JENNER FUST.-I will decree the grant on the proxy of the parties who have opposed this will; but I can make no order as to costs-the parties must settle that amongst themselves. I do not know the amount of the costs, nor how they may have been incurred. In the Goods of R. STEVENSON.-July 3. R. S. had not been heard of since 1828. Advertisements offering a Reward for Information respecting him, were inserted, without Result, in 1841. The Court granted the Administration to his Estate, without requiring further Advertisements. R. Stephenson was transported in February, 1821, and was discharged by Government, at Van Diemen's Land, in February, 1828, since which time nothing had been heard of him. In 1841 advertisements were inserted in the newspapers, offering rewards for authentic information respecting him, but without result. A representation was now wanting, for the purpose of giving a discharge to the executors of his father, who died in 1830, and under whose will he was entitled to a seventh part of some leasehold property. Harding moved for administration to be granted to the sister of the said R. Stevenson, as having died intestate, and a bachelor, on or after February, 1828, without inserting the affidavits usually required in similar cases. Sir H. JENNER FUST.-The property in this case is very small, and, as advertisements were inserted some years ago respecting this person, I think I may dispense with those required by the practice of the Court. Decree the administration, with inventory and justifying security. ROLLS COURT. RUDGE v. WINNALL.-July 22 and 23. Emblements-Interest on Legacy. A Testator devised his Estate at A. to B. for Life, and James Barrett, late of Prior's Court, in the parish of Ledbury, in the county of Hereford, by his will, bearing date the 7th December, 1841, gave, devised, and appointed all those his messuages or tenements, farm, lands, hereditaments, and premises, called "Prior's Court," and the lands taken in exchange from the canal company, situate in the parish of Ledbury aforesaid; and also all those messuages, lands, and premises situate at Cold Green, in the parish of Bosbury, in the county of Hereford, and at Stapley Pitch, in the parish of Bosbury aforesaid; and also all those lands and premises bought by the said testator from the Rev. Charles Henry Thomas Baumgarton, situate in Bosbury aforesaid, and a certain meadow called Stapley meadow, situate in Bosbury aforesaid, subject nevertheless and charged as thereinafter mentioned, to the uses following, that is to say, to the use of his friends, the defendants John Winnall and William Winnall, their heirs and assigns, upon trust from time to time to pay the rents and profits thereof to the said testator's son, John Barrett, of Bosbury aforesaid, for his life; and after his decease the said testator gave and devised the same hereditaments unto and to the use of his (testator's) grandson, James Barrett, and the heirs male of his body lawfully is suing; and for default of such issue, to the use of the right heirs of his (the said testator's) grandson, the said James Barrett, for ever. And the said testator gave, devised, and appointed all that his messuage or tenement, farm, lands, hereditaments, and premises, called "Temple Court," situate in the parish of Bosbury aforesaid; and also the several cottages, or dwellinghouses, and premises bought by the said testator from Robert Hartland, situate in Bosbury aforesaid; and also a piece or parcel of land in Catley Suffield, in Bosbury aforesaid; and all other the real estate whatsoever and wheresoever in which he (the said testator) had any devisable interest, or over which he had any general power of testamentary appointment, subject nevertheless as thereinafter mentioned, to the uses following, that is to say, to the use of the said John Winnall and William Winnall, their heirs and assigns, upon trust from time to time to pay the rents and profits thereof to the said testator's daughter, Elizabeth, the wife of Henry Rudge, of Leominster, in the county of Hereford, surgeon, for the term of her natural life; and from and after her decease, upon trust to pay the same to the said Henry Rudge, for his natural life; and from and after his decease the said testator gave and devised the last-menVOL. XIII. hh tioned hereditaments to the use of the first and other sons of the said Elizabeth Rudge, according to priority of birth, and the heirs of his and their bodies lawfully issuing; and in default of such issue, to the use of the daughters of the said Henry Rudge, and the heirs of their bodies, as tenants in common, with cross-remainders between them, in case any of the same daughters should happen to die without issue; and for default of such issue, to the use of the right heirs of the said Elizabeth Rudge for ever. And the said testator thereby gave and bequeathed unto the said John Winnall and William Winnall, their executors, administrators, and assigns, all his live and dead stock, household furniture and effects, and all his personal estate whatsoever and wheresoever, upon trust, as soon as conveniently might be after his decease, to make sale and dispose of, and convert the same into money; and, after payment thereout of all his mortgage and other debts, funeral and testamentary expenses, and legacies, and the expenses of proving and executing his said will, to stand possessed of the residue thereof upon the trusts thereinafter declared concerning the same. And the testator gave and bequeathed unto the said John Winnall and William Winnall, their executors, administrators, and assigns, the sum of 12,000l. sterling, and also the residue of his said personal estate, subject as aforesaid, upon the trusts, intents, and purposes thereinafter mentioned, that is to say, upon trust that they, the said John Winnall and William Winnall, and the survivor of them, and the executors, administrators, and assigns of such survivor, did and should stand possessed thereof, and lay out and invest the same when raised, as thereinafter mentioned, in their or his names or name, in the parliamentary stocks or public funds of Great Britain, or at interest on Government or real securities in England or Wales, and from time to time to alter, vary, and transfer the therein before-mentioned trust-monies so to be laid out and invested as aforesaid, for or into other stocks, funds, and securities of a like nature, as they should think fit. And the testator directed and declared that the trustees or trustee for the time being of his said will should stand possessed of the sum of 60007., part thereof, and the stocks, funds, and securities upon which the same should be invested, in trust to pay 40007., part of the said sum of 6000l., to James Barrett, the son of his late son James Barrett, on his attaining the age of twentyone years; and the sum of 2000l., other part thereof, to Louisa Barrett, the daughter of his said late son James Barrett, on her attaining the age of twenty-one years, or marrying under that age; and in case only one of the said children should live to attain the age of twentyone years, or marrying as aforesaid, then the said sum of 60007. so given for the benefit of the said James Barrett and Louisa Barrett, to be in trust for such one child only; and the will contained an ulterior disposition of the said sum of 6000l. in certain events, which did not happen. And as to the sum of 60007., remaining part of the said sum of 12,000., and the residue of his personal estate, the said testator directed the trustees or trustee for the time being of his said will to stand possessed thereof upon the trusts, intents, and purposes thereinafter mentioned, that is to say, in trust for all and every the child and children of his daughter, Elizabeth Rudge, who, being a son or sons, other than an eldest son, should attain the age of twenty-one years, or being a daughter or daughters, should attain that age or marry, if more than one, in the shares and proportions therein mentioned. And the testator authorised and empowered the trustees or trustee for the time being of his said will, within twelve calendar months after his decease, to raise the sum of 6000l. therein before bequeathed for the benefit of the children of his late son James Barrett, and the sum of 60007. thereinbefore hequeathed for the benefit of the children of his daughter, Elizabeth Rudge, by mortgage of the whole or any part 40007. and 20007. respectively, part of the said sum of Roupell and Elmsley appeared for the plaintiffs; and of his real estates therein before devised and appointed respectively, so nevertheless that one-third part of the sum to be raised should be secured on the estates thereinbefore bequeathed for the benefit of the children of the said Elizabeth Rudge and her issue, and the remaining two-third parts on the estates thereinbefore bequeathed for the benefit of his son John Barrett and his issue. And the testator declared that it should be lawful for the trustees or trustee for the time being of his said will, by and out of the said trust-monies therein before bequeathed, to levy and raise, for the maintenance and education of such of the children of his said son James, or of his said daughter, Elizabeth Rudge, for whom it was his intention to provide a portion or portions as aforesaid, in the mean time, and until his, her, or their portion or respective portions should become payable, such yearly sum and sums of money, not exceeding what the interest of the expectant portion or portions intended to be thereby provided for such child or children respectively would amount to after the rate of 41. per cent. per annum, as to them (the said trustees or trustee for the time being) should, for that purpose, seem sufficient: the said sum or sums of money for maintenance Lord LANGDALE, M. R., decided, that the growing to be free and clear of and from all deductions for crops passed to the executors, and formed part of the taxes or otherwise, and to be raised and paid in such testator's personal estate; and that the legatees were manner and at such times as to them (the said trus- not, upon the construction of the will, entitled to intees or trustee for the time being) should, for that pur-terest at 41. per cent., as prayed by their petition, but pose, seem meet. And the testator also authorised the to maintenance only, as allowed by the Master. said trustees or trustee for the time being, at any time or times after his decease, to levy and raise, by the ways and means aforesaid, or any of them, for the VICE-CHANCELLOR OF ENGLAND'S COURT. advancement or preferment in the world of the son or Re THE DUKE OF MARLBOROUGH'S ESTATES.—August 2. sons, other than an eldest son, or an only son of the said Elizabeth Rudge, for the time being entitled as aforesaid, or of the children of his son, the said James Barrett, any sum or sums of money, not exceeding in the whole, for each of such sons or children, the amount of his or their then expectant portion or portions, which sum or sums of money should be taken in part or in full satisfaction, as the case might be, of the portion or fortune provided, or intended to be provided, for such son or sons, as the said trustees or trustee for the time being should, in their or his discretion, think fit, notwithstanding the portion or portions of such child or children should not then have become vested or payable. And the said testator thereby appointed the said John Winnall and William Winnall joint executors of his said will. The testator died in December, 1841. This suit was instituted by the children of Elizabeth Rudge, to administer the testator's estate. By the decree made at the hearing of the cause it was referred to the Master to take the usual accounts in an administration suit; and the Master, by his report, included in the personal estate of the testator a sum of 2357., which had arisen from a sale of emblements, consisting of crops growing on the testator's Prior's Court estate, which was in his own occupation at his death. To this part of the report exceptions were taken by John Barrett, the devisee for life of the estate. The Master also found, that the testator, at the time of his death, stood in loco parentis to his grandson, James Barrett, (the son of the testator's son James), and his granddaughter, Louisa Barrett, who afterwards married the defendant Alfred R. Taylor; and that various payments had been made by the executors for their maintenance, which he certified ought to be allowed out of the rents and profits of the testator's real estates charged with the said sum of 12,0007. The cause now came on to be heard on the exceptions, and for further directions; and a petition was also presented by the testator's grandson, James Barrett, an infant, by his next friend, and Mr. and Mrs. Taylor, and the trustees of their marriage settlement, submitting that the petitioners, James Barrett and Louisa Taylor, were entitled to interest upon their legacies of Railway Company-Tenant for Life-Agreement. A Railway Company agreed to pay a Landowner, Tenant for Life, a Sum of Money, for the Benefit of him or other the Owner for the Time being, for indemnifying him from the Expenses of making a new Road, &c., and as a Compensation for the Annoyance which he or such other Owners as aforesaid might sustain in Consequence of the Construction of the Railway; and the Company agreed to pay a further Sum as the Price of the Land taken. Both Sums were paid into Court. The Application of the Tenant for Life for the absolute Payment to him of the first Sum refused; the Costs of the Road, &c. to be paid out of it, and the Rest invested. In 1845, Lord Churchill, who was tenant for life of certain lands through which the Oxford, Worcester, and Wolverhampton Railway was projected to pass, opposed the making of the railway. He, however, afterwards came to an agreement with the railway company, in the following terms:-After reciting, that about four miles in length of the said railway were intended to pass through the estates of Lord Churchill, (of which estates he was tenant in possession, except one, of which he was seised in fee-simple), and about one mile thereof was intended to run parallel to, and very near to, his residence and park, called Cornbury Park, crossing the private entrance road thereto, and that the line of the railway had, therefore, been very much objected to by Lord Churchill, who considered that the same would be a great detriment to his park and estates, and had therefore, as a landowner, been a dissentient to the passing of the bill, and intended to oppose the same, but that the promoters had offered to make a liberal compensation to Lord Churchill for the annoyance which would be occasioned to him by the making of the said intended railway, and to make terms with him with respect to the making and carrying on thereof, in case he would withdraw his opposition thereto: it was witnessed, that, in consideration of his thereby agreeing, as a landowner, to withdraw his opposition to, and to assent to, the said railway bill, certain persons, on behalf of the company, covenanted, that, in the event of the said bill passing into a law during the then or then next tenant for life a sort of trustee in these matters for session of Parliament, the company would, before taking possession of any part of the land, pay 52501. unto, or for the benefit of, Lord Churchill or other the owner for the time being of the said park and estates, which said sum should be deemed to be paid (in consideration of his assenting to the bill) for indemnifying him, as such owner as aforesaid, from the expenses which he would incur in making a new road from his residence towards the railway station, and building lodges thereon, and as a compensation for the injury, inconvenience, and annoyance which he or such other owners as aforesaid might be considered to sustain in consequence of the construction of the said railway, independently of the actual value of the lands to be taken, and of the damage by severance occasioned to the lands immediately adjoining thereto and held therewith, which said last-persons by the description of other owners; and that I mentioned value and damage respectively were thereinafter otherwise provided for: that the compensation to be paid for any land of the said Lord Churchill which should be required for the purposes of the railway, and the compensation to be paid for any permanent damage or injury to be occasioned by severance of the lands immediately adjoining, should be determined by arbitration, in such manner as was provided by the Lands Clauses Consolidation Act; compensation for all injury, loss, annoyance, for residential and other pur VICE-CHANCELLOR, (after reading the first part of the agreement).-Well, now, it is perfectly plain to me that here is an express distinction between Lord Churchill in person and as owner for the time being, and the owners of the inheritance; and I think, that, whatever the parties did really mean, they have so expressed themselves as to shew that a proportion was to go to Lord Churchill in respect of his making a new road and lodges, and the rest to be a compensation to the owners for the time being; and it seems to me, therefore, by this peculiar language, expressly not to be meant to be paid to Lord Churchill alone, but to other ought to make a reference as to what is to be paid for lodges and roads, and that the rest must remain in court in the usual way.-Reference, what part of that sum of 52501. ought to be paid to Lord Churchill for his expenses in making a new road, &c., and the residue to be invested for the benefit of the inheritance, and that Lord Churchill is entitled to the same for his life. A GASTON. FRANKUM.-Nov. 9, 1848. Pleading-Separate Estate-Contract of Married Woman-Waiver. Married Woman, having separate Property, and who was living apart from her Husband, made an Agreement to take the Lease of a Dwelling-house:-Held, that, to the Extent of her separate Property, she was liable to pay the Rent. poses, to be sustained by Lord Churchill, as owner of VICE-CHANCELLOR KNIGHT BRUCE'S COURT. the said park and estates, by reason of the construction of the said railway, except only the actual value of the land purchased by the said company, and such damage by severance as last thereinbefore mentioned, being included in the said sum of 52501. The railway bill passed, and soon afterwards the compensation was assessed by two surveyors at 23367. for the value of the land, and 18571. for severance. These sums, added to the 52501., made 94437., which sum was paid into court, under the Lands Clauses Consolidation Act. Lord Churchill now presented his petition, praying for payment out of court of the 5250, and praying a reference to inquire whether certain proposed purchases would be fit and proper whereon to lay out part of the rest of the money, and for the investment of the residue. Bethell and Osborne, for the petitioner. This agreement had two objects-a sum was to be paid to the tenant for life as compensation for his personal inconvenience, and a sum was to be paid for the inheritance; and the petitioner is undoubtedly entitled to that part which is compensation for his personal inconvenience. The only part there can be any doubt about is, whether the Court ought not to see the new road and lodges built out of part of this money. The language of the agreement is clear; and as to the act, by sect. 73 it is expressly directed that regard shall be had, not only to the value of the land, but also to the damage, if any, to be sustained by the owner by reason of the severing of the lands taken from the other lands of such owner, or otherwise injuriously affecting such other lands, by the exercise of the powers of the act. This clearly points at temporary as well as permanent damage; and there is no doubt that the making of a railway, whilst in progress, is likely to be a great annoyance to re sidents. Malins and Bigg, for the persons entitled in remainder after Lord Churchill, opposed.-We do not deny that the tenant for life may be entitled to part, but not to the whole of this money. Sect. 7 of the general act empowers the tenant for life to contract on behalf of the remainder-man. Now, is Lord Churchill to be considered here as contracting in his own right, or as representing the inheritance? This railway is such a dissight and annoyance to the inheritance that the inheritance is entitled to compensation; otherwise why was this money paid into court, instead of being paid to Lord Churchill at once? The Legislature has made the In a Suit for the specific Performance of an Agreement to take a Lease, it must be alleged and charged in the Bill that the Defendant has waived the Production of the Lessor's Title, if such Waiver is intended to be relied on; and it is not enough to allege such Facts as, if proved, would amount to a Waiver. This was a bill filed for the purpose of charging the separate estate of Mrs. Harriet Frankum, a married lady, living apart from her husband, with the sum of 767. 1s. 6d. for rent alleged by the bill to be due to the plaintiff, Mr. Ernest Gaston, for a house, No. 39, Bakerstreet. In 1843 the house was entrusted to Mr. Francis, an agent, to let, to whom Mrs. Frankum applied, and entered into a correspondence with Mr. Gaston as to the terms; and ultimately she agreed with Mr. Francis to take the house for seven or fourteen years, at 901. a year rent, and to pay 501. for fixtures. Mr. Francis drew up an agreement, which he took to the solicitors for Mrs. Frankum, in which it was stated that 107. deposit was to be paid to Mr. Francis. After some objection as to the authority of Mr. Francis to receive this deposit, he took the agreement to Mrs. Frankum, signed by him as agent for Mr. Gaston, and received the 107. deposit from her. Before the house was let, Mrs. Frankum told him her situation, that is, that she was living apart from her husband, and that she had a separate income, which would enable her to pay the rent. On the 12th June, Mr. Francis met Mr. Bridges, the agent of Mrs. Frankum, and, after comparing with him the inventory of the fixtures, gave up to him the possession of the house for Mrs. Frankum. Mr. Gaston and his solicitor, before the possession of the house was delivered, called on Mrs. Frankum, and informed her, that, as she was a married lady, she must procure some party to guarantee the rent; and she then said that either her trustee or her solicitor would do so. Mr. Gaston's solicitor then drew up another agreement, leaving a blank for the name of the guarantee, and sent the same to Mrs. Frankum's solicitors; and those gen-blished, yet that the suit was substantially one for specific tlemen wrote, in reply, a letter, dated the 14th June, performance, although the bill did not, in terms, pray 1843, in which it was stated that Mrs. Frankum must such relief; and that there had not been any instance of rely on the old agreement, a copy of which they en- the Court decreeing a specific performance of a contract closed. On the 5th July, Mrs. Frankum paid Mr. against a married woman. They also relied upon the Gaston's solicitor 407. on account of the premises; and other grounds of defence, and further contended, that, on the same day the solicitor refused to become guarantee at least, the defendant was entitled to investigate the for the rent, but said that she had an ample separate plaintiff's title to grant a lease before she could be held income to pay the rent, and he thought she would be a to the agreement, and that the plaintiff was bound to good tenant; and in the December following he sent to make out a good title to grant the lease in question. Mr. Gaston a notice of Mrs. Frankum's intention to KNIGHT BRUCE, V. C.-My opinion is, that the agree quit at Midsummer, 1844, and a letter stating, that, ment is binding upon the defendant, and can be enas Mrs. Frankum could not get a guarantee, her forced against her to the extent of her separate proonly alternative was to give up possession. In a cor-perty; but I feel difficulty in precluding the defendant respondence between the solicitors, it was asserted from the right to investigate the plaintiff's title to grant on one side, and contradicted on the other, that Mr. the lease in question. I think good sense and substanGaston had accepted Mrs. Frankum's notice. The tial justice are entirely with the plaintiff, and against rent was paid, but in June, 1844, Mrs. Frankum agreed the defendant Mrs. Frankum. If the plaintiff's case to let the house to Mr. Bridges, and then another cor- fails, it will be only on technical grounds. I think it respondence took place respecting a grant of a lease clear, that the agreement is such as would have bound direct from Mr. Gaston to Mr. Bridges. In April, 1845, the defendant, if Mrs. Frankum had been an unmarried and January, 1846, distresses were put in for rent. woman; and that it does, to the extent of her separate Under these circumstances, the bill was filed against property, bind her, although a married woman. The Mr. and Mrs. Frankum and Mr. Hutton, a trustee, and conduct of the lady and her agents precludes her from it prayed a declaration of the Court that the wife's raising those objections which are not in the pleadings. separate property was liable to pay the 717. 1s. 6d. rent Where there is an agreement to grant a lease, and the due for the house. Four several grounds of defence proposed lessor is the plaintiff, and there is nothing in were raised by Mrs. Frankum in her answer: firstly, the agreement, or there is nothing done, to preclude that the agreement was not a concluded one; secondly, the right to call for the lessor's title, generally speaking that the memorandum in writing of the alleged agree- the defendant has the right to have the title proved ment was not signed by her; thirdly, that her separate before taking the lease. That right may be waived, as property was not bound, and that the Court could not any other right may be. I am afraid-for the purposes decree a specific performance of the agreement; and, of this case afraid that, where the defendant is to be fourthly, that the house was uninhabitable, on account precluded from calling for proof of the plaintiff's title, of the chimneys being smoky. counsel will, therefore, confine his reply to that point. that must be put in issue in the bill. The plaintiff's Tripp and Speed, for the plaintiff, contended, that, although the memorandum of agreement had not been signed by the defendant, it had been adopted by her solicitor, in his letter of the 14th June, 1843; and that such letter, referring to the agreement, and insisting on the benefit of it, was a sufficient signature within the Statute of Frauds; (Boydell v. Drummond, 11 East, 142; Tawney v. Crowther, 3 Bro. C. C. 161, 318); and moreover, that the defendant had taken possession, and the agreement had been performed on the part of the plaintiff. And it was also urged, that it was settled that a feme covert was liable in respect of her general engagements; and that no specific charge was required to make the separate estate of a married woman liable in respect of her contracts, nor was it necessary that there should be any promise or engagement in writing to pay. (Owen v. Dickenson, 1 Cr. & Ph. 48; Clinton v. Willes, 1 Sugd. on Powers, 208). And the earlier cases, and particularly Bullpin v. Clarke, (17 Ves. 365); Stuart v. Lord Kirkwell, (3 Madd. 337); Aguilar v. Aguilar, (5 Madd. 514); and Murray v. Barlee, (4 Sim. 82; S. C., 3 My. & K. 209), were commented upon. As to the objection raised to the performance of the covenant, upon the ground of the annoyance caused by smoky chimneys, it was contended that the evidence, upon the part of the plaintiff, entirely rebutted that head of defence. Randall, for Mr. Frankum. Prendergast, for Mr. Hutton, the trustee. Swanston and Wright, for the defendant Harriet Frankum, contended, that the evidence established that there had been no concluded agreement, or, at all events, no agreement which had been signed by the defendant, or by her solicitor or agent; and that the correspondence between the respective solicitors of the plaintiff and the defendant shewed that it was not intended that the defendant should become tenant of the house, except she was able to procure her trustee, or some other person, to become liable for the rent and covenants in the proposed lease; and supposing the agreement was esta did not, under the circumstances of the case, arise; for Tripp, in reply, submitted that the question of title it appeared that the parties, finding the defendant could not procure any person to enter into the covenants in the proposed lease, had agreed that the defendant should continue in possession of the house under the agreement of the 25th May, 1843, and that no further instrument in writing should be signed by her, or by any person on her behalf, to give effect thereto; and that the bill did not seek the specific performance of the agree ment, but payment of the rent in respect of the defendant's use and occupation of the premises; and that, moreover, the defendant must, by her acts and conduet, be deemed to have accepted the title. KNIGHT BRUCE, V. C.-The plaintiff alleges here that the defendant has waived a right, primâ facie given to her by law, to require a title to be shewn to the property which is the subject of the suit, the bill not alleging that there has been any waiver. The plaintiff states, perhaps correctly, that facts are stated in the bill, which, if proved, would amount to evidence of waiver. But there are many instances in which it is not sufficient to charge or state the evidence, or that which is intended to be proved by the evidence. Here the point is waiver, and the allegations are of facts from which that waiver can be inferred. I am of opinion, the waiver not being alleged, and not being charged, that I cannot look at the evidence for that purpose. There is nothing in the bill of that kind. I think, therefore, there must be a reference for the title, if the counsel of the plaintiff thinks he is able to shew the title. Ex parte SANDERSON, in re THE NORTH OF ENGLAND |