to come in as a general creditor. The words of the act are to be construed according to their legal intention. Your Honor will see that there is another provision in the clause as to personalty. Sect. 13 is confined to the case of charges upon lands, and the words used there cannot be taken to denote money. This act cannot be taken to have given the judgment creditor anything that did not pass to the assignees; this is not a case where, the property not being assignable at law, the creditor, having done all he can, will be assisted by the court of equity. There is a distinction between insolvency and bankruptcy: if execution issued before the assignment under the bankruptcy, the execution creditor had the benefit of it; but, in the case of insolvency, imprisonment was held to give greater notoriety. Foster v. Blackstone (1 My, & K. 297) and Bishop v. Hatch (3 N. & M. 498) were cases of bankruptcy. But the title of the insolvent's assignees overreaches the diligence of the creditor after the imprisonment. Here the benefit of the judgment could not be resorted to, under sect. 13, till many months after the insolvency. (See Gye v. Hitchcock, 4 Adol. & Ell. 84; 5 N. & M. 600; Kelcey v. Winter, 1 Scott, 616; Groves v. Cowham, 10 Bing. 5; Sharp v. Thomas, 6 Bing. 416: as to the effect of insolvency, Lodge v. Lyseley, 4 Sim. 70; Dillon v. Plaskett, 2 Bligh, N. S., 239; Sugd. Vend. and Pur., p. 666).

Stuart, in reply. When Foster v. Blackstone was decided the judgment creditor had no other remedy; now we have the rights given us by sect. 13, and how are they taken away by sect. 61? It is said that the sale of the land under the power has deprived us of the benefit of our judgment; but how is the money, the produce of the sale, to be disposed of? It is said that the creditor is to go in under the insolvency; but how can that apply to the case of a creditor whose rights can only be carried out by this Court? The provisions of the act are express to give the judgment creditor a charge; and what is there to shew that his charge is taken away, unless he has made it available before the insolvency? The 61st section is only to restrain sales. This money is land in the hands of the trustees, and we are entitled to our rights against it.

VICE-CHANCELLOR.-The question is, whether, by virtue of the words which are found in the beginning of sect. 13, as operating on the actual transaction itself, which was manifested by deed-whether a judgment creditor has not, in fact, a lien upon that money as the proceeds of a sale of land. This, as I understand it, was a mortgage, and the estate was vested in Hedger upon trusts for sale, and upon trust to pay, first Murray's debt, and then his own; and then it is directed, that, if any sum or sums of money should remain in the hands of Hedger, he should pay such residue or surplus to Lister, his heirs, appointees, or assigns, for his and their own benefit, or as he or they should direct. I cannot but myself think, that, to say the least of it, there is a very grave question, whether the judgment itself did not operate as an appointment of that residue. I am not bound to decide that question at present; but, pending that question, it seems to me, that, at any rate, the money should be secured.-Injunction as to 10007., part of the monies admitted to be in the bank.

Rasch, for the plaintiff, contended, that the affidavits should disclose the points to which it was intended that the witness should depose. (Hope v. Hope, 3 Beav. 317; M'Kenna v. Everitt, 2 Beav. 188; and Bown v. Child, 3 Sim. 457). And further, that it should be shewn that he was the only witness who could depose to the facts. (Pearson v. Ward, 1 Cox, 177; and Rowe v. 13 Ves. 261).

KNIGHT BRUCE, V. C.-I should have thought this only not a motion of course, because it required notice. It appears that this is a material witness, and that he is going abroad. The order must be made, and the costs of the motion be costs in the cause.

GUDE v. WORTHINGTON.-April 19.
Will-Construction-Discretionary Power.

A. B., by her Will, gave to her Trustees and Executors a Sum of 5001., upon Trust to invest the same, and pay and apply the Interest or Principal for the Use of C.D., as they might in their Discretion think jit, during the Life of C. D., it being the Testatrix's wish that the Trustees should have the entire Power to dispose of the Principal and Interest, or to withhold the Whole and let the Interest accumulate, as they should think fit; and after C. D.'s Death, in Trust to add the 500l., or such l'art as remained, to 1000l. subsequently given to the Trustees, for the Benefit of E. F. and G. H. Both the Trustees and Executors died, having, during their Lives, from Time to Time paid the Interest of the 500l. to C. D., but without having exercised their discretionary Power over the Principal:-Held, that C. D. was entitled absolutely to the Fund.

Charlotte Howard, by her will, dated the 16th March, 1815, appointed William Henry Worthington her executor, and bequeathed as follows:-"I give and bequeath to my friend, William Henry Worthington, of &c., the sum of 15007., upon trust to continue the same upon such securities as the same may be invested at the time of my decease, or to call in the same, and place it out again at interest in real and Government securities, or in the public funds, and to apply the interest thereof to or for the benefit of the two daughters, and of Daniel the youngest son, of my nephew, William Seaman, until their respective portions in the same 15007. shall become payable, either in their maintenance or education, or otherwise, as the said William Henry Worthington shall in his discretion think fit; and when and as either of the said daughters of my said nephew, William Seaman, shall attain their respective ages of twenty-one years or be married, or the said Daniel Seaman shall attain the age of twenty-one years, then upon trust to pay to such daughter so attaining the age of twenty-one years or being married, and to the said Daniel Seaman

GROVE. YOUNG.-April 19.

Practice-Examination de bene esse. Where a material Witness is going Abroad, it is a Matter of Course, upon the Application of a Party to the Cause, to make an Order for his Examination de bene csse. This was a motion that the defendant in the cause might be at liberty to examine John Stoneman as a

of 500l., as her and his share of the money so given by me in trust as aforesaid. And in case either of such daughters shall die before she shall attain the age of Seaman shall die before he shall attain his said age of twenty-one years or be married, or the said Daniel twenty-one years, then I direct that the share or shares of him, her, or them so dying, of and in the said trustmoney, shall from time to time accrue and belong to the survivors and survivor of such three children, and

In re THE NORTH OF ENGLAND JOINT-STOCK BANKING COMPANY, ex parte BURLINSON.-June 20. Contributory-Husband and Wife-Joint-stock Companies Winding-up Act, 1848.

A Female Shareholder in a Company married without any Settlement being made: the Husband received Dividends, and signed the Receipts "Pro Ann Burlinson." The Company's Deed contained Clauses by which Husbands of Female Shareholders were required to do certain Acts, if they claimed to be Shareholders, and without doing which they could not receive any Dividends in their own Right. The Husband did not perform any of these Acts. His Name was put on the List of Contributories; and, on Appeal, the Court held that his Name ought to be on the List, either alone or with that of his Wife.

In this case Master Farrer, to whom the winding-up of the affairs of the Company was referred, certified that he had included the name of Frederick Thomas Burlinson in the list of contributories, as a contributory without qualification, in respect of twenty shares of 100%. each, and had settled the list as regarded the inclusion of the said Frederick Thomas Burlinson therein, the solicitor for him having consented to be placed on the list, without qualification, if liable in any capacity. The Master's certificate was dated the 19th June, 1849. It appeared that Ann Wetherell, spinster, was the holder of twenty shares on the 16th December, 1834, by transfer from one Thomas Wood, and she was duly registered, and received dividends up to her marriage. On the 26th September, 1837, she married Mr. Burlinson, and from that time all the dividends were received by him. There was no settlement made. The dividend warrants were in the following form:-"Capital stock account. Dividend warrant. 81. 58., dividend on twenty shares. The North of England Joint-stock Banking Company. Pay self or bearer 81. 5s., being a dividend of 8s. 3d. per share on the paid-up capital stock of the Company in my name, for the year ending the 31st December, 1842, as declared at a general meeting held February, 1843. Per pro. Ann Burlinson-F. T. Burlinson. B., Newcastle-upon-Tyne, 14th March, 1843." Six warrants were signed as above, and a seventh, "For Ann Burlinson-F. T. Burlinson." From this decision Mr. Burlinson appealed. The deed of settlement of the Company contained the following clauses applicable to the case, namely, Nos. 28, 29, 30, and 31. The 28th clause was this:- "The husband of any female shareholder, or the executor, administrator, or legatee of any deceased shareholder, or the assignee of any bankrupt or insolvent debtor, possessed of shares, shall not be a member of the Company in respect of such shares as shall be vested in hinr in any of the aforesaid capacities respectively, but such assignee of a bankrupt or insolvent debtor shall sell and dispose of such share, in manner and subject to the provisions herein before expressed and contained with respect to the sale and transfer of shares; and any such husband, executor, administrator, or legatee as aforesaid shall be at liberty either to sell and dispose of the shares so vested in him, in like manner and subject as aforesaid, or, at his option, to become a member of the Company in respect of such shares, on complying with the provisions of these presents, as next hereinafter expressed in that behalf." The 29th clause was:- "The husband of any female shareholder, or the executor, administrator, or legatee of a deceased shareholder, who shall be desirous of becoming a member of the Company in respect of the shares vested in him in any of such capacities respectively, shall give notice in writing at the bankinghouse of the Company, in Newcastle-upon-Tyne, of such his desire, in which notice shall be expressed the name and place of abode of the person giving the same, and the name of the shareholder in whose place or right he claims, and the number of shares in respect whereof

And

he is desirous of becoming a member; whereupon, and upon otherwise complying with the provisions of the deed of settlement, he shall be admitted and become a member of the Company in respect of such shares, and have the same transferred into his name accordingly, and shall be personally charged with the duties and liabilities incident to the ownership of the same." Clause 30. "The husband of any female shareholder, or the executor, administrator, or legatee of any deceased shareholder, who shall not, under the provision lastly hereinbefore contained, elect to become a member of the Company in respect of the shares vested in him in any such capacity, and also the assignee of any bankrupt or insolvent debtor possessing shares, shall be entitled to receive any dividend which shall have become due on the shares so vested in him in any such capacity as aforesaid before his title to the same shares accrued; but no dividends which shall become due on the same shares after his title shall have accrued shall be payable to or demandable by him, but shall, till some person shall have become a member of the Company in respect of the said shares, remain in suspense, and shall not be paid till the transfer thereof shall be completed, and the new holder thereof shall claim the same; and every transfer shall carry with it the profits, and interest, and share of capital and surplus or guarantee fund, in respect of the shares transferred, so as to close all the right and interest of the party or parties making such transfer in respect of such transferred shares." the 31st clause was as follows:-"In case any person, in whom any shares shall, by original subscription, purchase, marriage, bequest, representation, or other mode of acquisition, become vested, and who shall not have executed the deed of settlement, shall, for six calendar months after notice in writing for that purpose, neglect or refuse to execute the same, it shall be lawful for the directors to declare the shares so vested in such person so neglecting or refusing, and all benefit and advantage whatsoever incident thereto, to be forfeited to the other shareholders, and the same shall be forfeited accordingly." A cashier of the Company, Henry M'Creight, was examined, and deposed as follows:-"I say, from my knowledge of the regulations of the said bank, that it was not the practice of the said Company, or directors, or managers, or of any one, for the bank ever to require a notice, under the 29th clause of the deed of settlement, on the payment to an executor or administrator, or other representative, or on admitting him to the receipt of future dividends, under the 30th clause of the said deed, but that the said Company was satisfied with the production and registration in the Company's books of the probate or letters of administration of the deceased or former shareholder, or with any other evidence or information satisfying them that the persons represented to them were such executors, administrators, or representatives; and that the names of the said Alexander Berham and Michael Allen" [this entry had reference to a transaction found in the books which had been produced]" were entered in the said share ledger as executors of the said John Scott, and the dividends thereon paid to the said Alexander Berham, in consequence of the statement of the said Alexander Berham, that he and the said Michael Allen were such executors. Such practice as before mentioned was not, to the best of my belief, ever brought before any public meeting of the Company; and, as far as I know or believe, no notice ever was given by any parties under the said 29th section: I never saw one while clerk, and I have lately had all the papers of the bank, with respect to the title to shares and their transmission, through my hands, and I have not seen one such notice among them."

Swanston and Elderton moved that the decision of the Master might be reversed, and that the name of Mr. Burlinson might be struck out of the list of contri

butories. The holding of the shares by the lady was before she contracted her marriage with the appellant, and on that event taking place no settlement was made. True it is that the husband from time to time received the dividends, but he did so only as the agent of the wife, and so the receipts shew. Independently, therefore, of the deed of the Company, it cannot fairly be contended that he is a contributory. [Knight Bruce, V. C.-This was a liability contracted before marriage; the husband may die, and she may again be liable. She consented to be and was a shareholder at the time of her marriage. I never heard that a husband is not liable for his wife's debts. If this lady had not married, she, being liable by her own act, would have continued liable; but having married, then it is contended that her husband is not liable.] What we say is, that the name of the husband never ought to have been on the list, because he never did any act which could entitle him to any benefit, and therefore cannot be placed in a situation of responsibility for losses. What is the use or the meaning of the 29th clause, where it says that the husband of any female shareholder, if he desires to become a shareholder, must do certain acts, unless it means that he is not liable unless he does them? What can be the sense of the 30th clause, which says he shall not be entitled to any benefits unless he does those acts, if it be not that he is to remain in the same situation as if he never had married a female shareholder, so long as he neglects to do those acts? Then, upon the construction of the act itself, the word "husband" does not occur in the clause which gives definitions of the word "contributory." The case of Ex parte Angas (ante, p. 76) was an authority to shew that the husband ought not to be placed on the list of contributories. [Knight Bruce, V. C.— Angas's case was very different from this, because the share was settled to the wife's separate use. The husband had never contracted with the Company in any other way than as to his wife's separate estate. The contention here must be, that a wife can have an agent for a civil purpose other than for her separate estate.] Yes, we do; and Hart v. Stevens (6 Q. B. 937) shews that it can be so. There (without at present adverting to another point of our argument, on the point of a chose in action) a feme sole, the payee of a promissory note, payable with interest, married, and her husband survived her. The husband during her life received the interest, and it was held that the payment of such interest, in the wife's life, to the husband, within six years before the action brought by her administrator, must be considered as made to him in the character of agent to the wife, and was an answer to the Statute of Limitations. Mr. Justice Patteson, in delivering judgment, said, "It was further argued, that, if he (the husband) was competent, his evidence did not avail for the purpose for which it was given-the taking the note out of the Statute of Limitations. But it is clear that it did. If he received the interest, not in his own right, but as agent for his wife, which he clearly did, then the interest of course was paid to her." So that Mr. Justice Patteson clearly and distinctly recognises the principle, that the husband may be the agent for the wife other than in respect of her separate estate. [Knight Bruce, V.C.-I agree with all but the last paragraph of the judgment.] Then we say that the shares in question were choses in action, which the husband did not-indeed, could not, without complying with the provisions of the deed-reduce into possession. He never did any act to interfere with the ownership of these shares at any time; and all that he did was to receive the dividends for and on behalf of his wife. The case before cited, of Hart v. Stevens, shews that the receipt of interest does not operate so as to create a reduction of a chose in action into possession. The learned judge there expressly held, that the husband having received the interest on the note did not have such

effect; he saying, "for this latter proposition we think there is no foundation;" and again, for they suppose a reduction into possession by the husband during his wife's life, of which his merely receiving interest in the way stated is not even any evidence." For all these reasons we contend that the name of this gentleman ought to be removed from the list.

Bacon and Headlam, for the official manager, were not called on.

KNIGHT BRUCE, V. C.-The case before the Court does not appear to me to be in the least degree affected by the terms of the deed constituting and regulating the Company; nor does it appear in the least degree affected by Angas's case, decided by me; nor does it appear to be affected by the question-if, indeed, it is one-whether these shares have been reduced into possession by the husband. The husband is most clearly liable, and his name ought most clearly to be upon the list. The only point for consideration-if it requires further consideration-is, whether the wife's name ought not to be associated with his own. But I understand that question not to be now before me. It must be understood that I give no opinion upon the question, whether the wife's name ought not to be on the list with that of her husband. Assuredly the husband's name must be on the list, either with or without that of his wife; that is all I decide. The motion must be refused, with costs.

COURT OF QUEEN'S BENCH.-TRINITY TERM.

JOHN SMITH V. REG. (in error).—June 4. The Authority of the Recorder of a Borough is not deter mined or suspended by the coming of the Judges into the County, and acting under their Commissions of Oyer and Terminer and General Gaol Delivery; and therefore he may hold Quarter Sessions of the Peace during the Time of the Assizes in the same County. So, also, may the Justices of a County, though generally it would be highly inconvenient and improper to do so. Error from the general quarter sessions of the peace for the borough of Manchester, in April, 1848.-The record stated, that, at the general quarter sessions of the peace of our sovereign Lady the Queen, holden at Manchester, in the county of Lancaster, in and for the borough of Manchester, on the 3rd April, in the eleventh year of the reign of our sovereign Lady, Victoria, before Robert Bayes Armstrong, Esq., the recorder of the said borough, John Smith (the plaintiff in error) was indicted for breaking and entering a dwelling-house, and stealing therefrom, and for having been previously convicted; and that he was, on the 6th April, tried, found guilty, and sentenced by the said recorder of the said borough to be transported for ten years. The errors specially assigned were-First, "that on the 24th March, 1848, at the Court-house in Liverpool, in the said county of Lancaster, there was holden for the southern division of the said county of Lancaster, within which said southern division for the said county of Lancaster the said borough of Manchester is, and then was, included, a session of oyer and terminer and general gaol delivery, before Sir E. H. Alderson, Knt., and Sir R. M. Rolfe, Knt., two of the Barons of her Majesty's Court of Exchequer at Westminster, and others," &c.; "and that the said session of oyer and terminer and general gaol delivery was at Liverpool aforesaid, in and for the southern division of the county of Lancaster aforesaid, continued, and was holden by adjournment from day to day, from the said 24th March until the 8th April then next following; and that the indictment in the record aforesaid was found, in manner and form as therein alleged, against him, the said John Smith, at the general quarter sessions of the peace aforesaid holden at Manchester, in the county of Lancaster aforesaid, in and for the said borough, in the said county,