Ex.] THE ATTORNEY-GENERAL v. UPTON AND OTHERS. [Ex. 2nd and 4th sections of the Act, taken together, was to make C. liable to duty as on a succession from B. "shall at the same time and before he shall have the | Held (dubitante Martin, B.), that the effect of the case delivered to him, pay the clerk to the said justices his fees for and in respect of the case and recognisances." The case was heard on the 3rd March; notice of appeal was served on the 6th; and the recognisances were entered into on the 10th. They referred to Chapman v. Robinson, 28 L. J. 30, M. C. Bovill, Q. C. (Hannen and Stanhope with him) contended that the only limit for entering into recognisances was, that it must be done before the case is stated and delivered. And with regard to the case the justices at petty sessions had no right to convict the app., inasmuch as they had no power to inquire upon what evidence the magistrate granted the licence, or whether he had good reasons for so doing or not. Manisty, Q. C., for the resp., contended that the justices had a right to see whether the magistrate had sufficient evidence before him to entitle him to grant the licence, and it ought to have been shown to him that the cattle plague was not within one mile of the place from whence the cattle were to be removed. ERLE, C. J.-I am of opinion that there is nothing in the objection as to the recognisances, and that they were entered into in time, and as to the conviction, that it should be quashed. The penalty is to be paid by a person who removes his cattle without a licence; but as the app. did remove, but had a licence to do so, it is clear that the conviction must be wrong in law. Mr. Stanhope applied for a licence, and there is not the slightest ground for saying that there was any intentional fraud on his part. The justices at petty sessions, however, have thought that they had a right to inquire into the amount and nature of evidence given before the magistrate, and to decide whether it was such as to justify him in granting the licence. I am of opinion they had no right to do so. Stanhope appears to have acted without any intention to do wrong, and I must say that the justices in doing what they have done seemed only to have acted under what they considered a painful sense of duty. Mr. BYLES, M. SMITH, and KEATING, JJ. concurred. Conviction quashed. COURT OF EXCHEQUER. Reported by H. LEIGH and E. LUMLEY, Esqrs., Barristersat-Law. ERRATA.-In Robinson v. Emerson, ante, p. 291, the following corrections are to be made: In the headnote, par. 1, line 3, for "Geo. 3, c. 6," read "Geo. 3, c. 137, s. 6." In par. 2, line 7, for "37" read "187"; and in p. 292, col. 1, line 30 from the top, for "Manwaring" read "Sherborne," Saturday, April 21. THE ATTORNEY-GENERAL v. UPTON AND OTHERS. Succession Duty Act 1853 (16 & 17 Vict. c. 51), ss. 2, 4- General power of appointment—Appointee to whom successor. A. devised real estate to B., his wife, for life, with remainder to such uses as she should by deed or will appoint, and died after the Succession Duty Act came into operation. B. appointed the estate to the use that trustees should receive an annuity thereout, on trust to pay the same to C. C. was a stranger in blood to B., but related to A, so that a different rate of duty would be payable if she was 66 successor" to B. from that which would be payable if she was "successor" to A.: Per Bramwell, B.: The 2nd section alone would have had that effect. Re Barker, 7 H. & N. 109; 5 L. T. Rep. N. S. 206, distinguished. This was a case involving a question under the Succession Duty Act 1853 (16 & 17 Vict. c. 51). The information showed that Henry Fanshawe, a Rear-Admiral in the Royal Navy, by his will dated the 14th April 1851, devised certain real estate to the use of his wife, Caroline Fanshawe, and her assigns during her life, and after her decease to such uses, and upon such trusts, as she should by deed or will direct and appoint, and in default of such appointment to certain uses by the said will declared. That the testator died on the 9th Aug. 1856, being after the time appointed for the commencement of the Succession Duty Act 1853; and upon his death the said Caroline Fanshawe, by beneficially entitled in possession to the said real reason of such disposition as aforesaid, became estate during her life, and had also a general power of appointment over the same by deed or will. That afterwards, by a certain deed-poll dated the 3rd Aug. 1858, the said Caroline Fanshawe appointed that the said real estate should immediately after her decease remain to the use and intent, that the defts. should, during the life of Elizabeth Fanshawe and her husband, and all and every their child or children, and the life of the longest liver of them respectively, yearly receive an annuity of 2007., to be charged upon the said real estate, upon trust, during the life of the said Elizabeth Fanshawe, to pay the same to the said Elizabeth Fanshawe for her separate use. That the said Caroline Fanshawe died on the 12th March 1863, leaving the said Elizabeth Fanshawe her surviving. That the interest of the said Elizabeth Fanshawe in the said annuity is a succession within the meaning of the Succession Duty Act 1853, and duty is payable in respect thereof; and the Attorney-General insists that the proper rate of duty is 10 per cent., inasmuch as such interest is derived from the said Caroline Fanshawe as predecessor, and both the said Elizabeth Fanshawe and her husband are strangers in blood to the said Caroline Fanshawe; but the defts. decline to pay duty at that rate, alleging that the interest of the said Elizabeth Fanshawe is derived from her husband's uncle, the testator, Admiral Fanshawe, as predecessor, and that consequently the proper rate of duty is 3 per cent. only. The answer submitted, that the interest of the said Elizabeth Fanshawe in the said annuity is not Duty Act 1853, and that no duty is payable in a succession within the meaning of the Succession respect thereof; and further, that if the said interest be a succession, and any duty payable in respect thereof, such interest is not derived from the said Caroline Fanshawe as predecessor, but from the testator, Admiral Fanshawe, and that the husband of the said Elizabeth Fanshawe being related to the said Admiral Fanshawe as in the information mentioned, the proper rate of duty, if any, is 3 per cent. only. The Succession Duty Act 1853 (16 & 17 Vict. c. 51), ss. 2 and 4, enacts as follows: Sect. 2: Every past or future disposition of property, by reason whereof any person has or shall become beneficially entitled to any property or the income thereof upon the death of any person dying after the time appointed for the commencement of this Act, either immediately or after any interval, either certainly or contingently, and either originally or by way of substitutive limitation, and every devolution by law of any beneficial interest in property, or the income thereof, upon Ex.] THE ATTORNEY-General v. UPTON AND OTHERS. the death of any person dying after the time appointed for the commencement of this Act, to any other person, in possession or expectancy, shall be deemed to have conferred or to confer on the person entitled by reason of any such disposition or devolution a succession; and the term "successor" shall denote the person so entitled; and the term "predecessor" shall denote the settlor, disponor, testator, obligor, ancestor, or other person from whom the interest of the successor is or shall be derived Sect. 4: Where any person shall have a general power of appointment, under any disposition of property taking effect upon the death of any person dying after the time appointed for the commencement of this Act, over property, he shall, in the event of his making any appointment thereunder, be deemed to be entitled, at the time of his exercising such power, to the property or interest thereby appointed as a succession derived from the donor of the power; and where any person shall have a limited power of appointment under a disposition taking effect, upon any such death, over property, any person taking any property by the exercise of such power shall be deemed to take the same as a succession derived from the person creating the power as predecessor. [Ex. exhausts the succession, and further takers take a further succession. They also cited Re Jenkinson, 24 Beav. 64; and Attorney-General v. Yelverton, 7 H. & N. 306; 5 Attorney-General v. Brackenbury, 1 H. & C. 782; 8 Bovill, Q. C. and Hannen for the defts.-The defts. are not liable to duty. Mrs. Fanshawe never had any property beyond her life-estate. The interests of the persons she might nominate in the exercise of her power would take effect out of the admiral's estate, and the Legislature never intended that two duties should be payable in such a case. The 4th section is intended to deal with powers generally: the first part of it deals with general powers, and the last with limited powers; and the scope of it is that in the case of general powers the person who exercises the power shall pay the duty, and in that of limited powers the appointee. No doubt the 2nd The Attorney-General, the Solicitor-General, Locke, section would apply here but for the 4th; that QC. and Pemberton for the Crown.-By reason of section, I contend, was intended to exclude the the appointment of Aug. 3rd, 1858, Caroline operation of the 2nd, and such was Turner, L. J.'s Fanshawe must be deemed to have become entitled opinion in the Lovelace case. Mrs. Fanshawe would to the annuity as a succession derived from Admiral no doubt have been liable to duty had she not been the Fanshawe, and the result would have been, if she testator's wife. Now, as to the second branch of had been any other relative than his wife, she would the case. Supposing duty to be payable by the have become liable to duty herself; she takes it, defts., under what section is it contended that they however, as property to which she is entitled, and are liable? Clearly not under the 4th, for that does by giving it to somebody else she creates a new not apply to their case. It cannot, surely, then be succession. The effect of the first part of the 4th contended that that section, which has no applicasection of the Act is to obliterate the old technical tion to their case, is to be introduced by implication distinction between property and power. So a new into the 2nd section, so as to alter what would otherstarting point after her death is created under the wise be its effect. In Re Barker, the then AttorneyAct, and Elizabeth Fanshawe takes as her suc- General was arguing for what is my present propo cessor. The matter is even plainer on authority.sition, and it was contended by the Crown that the The case of Drake v. The Attorney-General, 10 CL. & F. 257, determined a precisely similar point with respect to legacy duty under 36 Geo. 3, c. 52, 88. 7 and 18. The Attorney-General v. Gardner, 1 H. & C. 639; Re Wallop's Trusts, 10 L. T. Rep. N. S. 174; 1 De are decisions in point, and the latter is still an Re Lovelace, 4 De G. & J. 340; Re Barker, 7 H. & N. 109; 5 L. T. Rep. N. S. 206; and Lord Braybrooke v. The Attorney-General, 9 H. L. 150; 4 L. T. Rep. N. S. 218, are probably the authorities on which the defts. rely. None of these, however, were cases in point; for none of them were within the 4th section of the Act. In Re Lovelace, Turner, L. J., was of opinion that the proper antecedent of the words "taking effect" in that section was the word "power," and not "disposition;" but in all those cases the power had taken effect before the time fixed for the commencement of the operation of the Act, and therefore the technical rule of law applied by which estates and interests created by the exercise of a power are read as inserted in the instrument creating the power. This technicality is just what the 4th section was intended to sweep away and when a person does an act whereby he gives another what he might have given himself, he is really acting as owner, and the appointee takes a fresh succession from him. [BRAMWELL, B.Suppose the donee of the power appoints by will; then upon his death he would be deemed to be entitled to the property as a succession.] It is clear that the duty is imposed upon him, that case of appointees was within the 2nd section. Attorney-General v. Floyer, 9 H. of L. 477. The Attorney-General in reply.-Any expressions Ex.] THE ATTORNEY-GENERAL v. UPTON AND OTHERS. in the Barker case favourable to the defts. are not of much authority, for the facts in that case did not raise the present question, and the then AttorneyGeneral conceded the point as to the higher rate of duty on account of the decision in Lovelace's case, that the 4th section only applies to powers becoming actual subsisting powers after the commencement of the Act. Hence that concession does not apply to cases within the 4th section like the present. [MARTIN, B.-My difficulty is that the very words of the first part of the 4th section are satisfied by making use of them to impose a duty on the donee of the power, and that so, even reading the 2nd and 4th sections together, other cases are left to be dealt with according to the general law.] The 2nd section does not define what is a disposition, but leaves that to be discovered by the consideration, who is the predecessor by general law and the Act. This Act is to be construed according to the popular sense of the words (see Lord Braybrooke's case, 9 H. L. 165); and when the Act does assist you to solve the question, it is a repugnancy to go to the ordinary law. What can be more repugnant than to say that the original donor is to be supposed to have given the same subject-matter to the appointee and also to the donee of the power? Besides, the effect of the deft.'s contention is to render the whole of the second portion of the 4th section which relates to limited powers superfluous. POLLOCK, C. B.-I am of opinion that the Crown is entitled to duty at the rate of 10 per cent. The case of Re Barker, I am not sorry to say, appears to have nothing to do with the present question; the distinction being that in that case, as the power had taken effect before the Act came into operation, the 4th section had no application; on the present occasion it has. Mr. Bovill has asked how the appointee derived any property from Caroline Fanshawe, and on what ground therefore 10 per cent is payable. I will endeavour then to meet that question. This Act of Parliament appears to have been very well drawn, and few public Acts are entitled to so much commendation for acquaintance with the subject-matter involved and for the means taken for producing the results intended. Now the real property law of this country is a highly artificial system; creating an apparent difference and professing to create a real one where there is really none; thus it makes a difference between a case where an estate is given to a man and his heirs and where one is given to a man for life with a power by any deed to dispose of the reversion, which he may thus give to himself in fee. In this case the testator left to his wife Caroline | Fanshawe a life-estate with power by deed to dispose of the remainder. A person to whom such an estate is left may say, "I only want a life-estate, I shall not incumber myself with anything further;" he would then only be liable to the duty as on a life-estate. But if such person chooses to dispose of the remainder, eo instanti the Act meant to say you shall be considered as taking an estate in fee-simple, having done an act which shows your intention to do so. Then all the consequences of that must flow, and he is then exactly in the same position as a devisee in fee. The answer to the question how property was derived from Mrs. Fanshawe is, that she was in substance left the whole, but with what in substance amounted to a power to reject part, and she chose to act as if the whole was hers. I think that is a complete answer to the question. It seems to me that under the 2nd section the duty chargeable would, if the case were not within the 4th section, perhaps be 3 per cent., but this case is within the 4th section, and the consequence is that as Mrs. Fanshawe in substance took the whole property, she is to be considered the giver and not [Ex. the testator who created the power, and therefore the appointee takes under her, and being a stranger to her must pay the higher rate of duty. MARTIN, B.-I was at first inclined to agree with the Attorney-General, but Mr. Bovill's argument had a great effect upon my mind, and I am not now quite clear on the subject; but my doubt is not so strong as to induce me to differ from what I believe is the opinion of the rest of the court. It appears to me that the present question depends on the 1st, 2nd, and 4th sections. What at first created a doubt in my mind was the 33rd section, the terms of which seem at first sight to imply that the donee of the power would be liable to pay some additional sum by reason of the exercise of the power. I apprehend that, if the 2nd section stood alone, the appointee would be liable to duty as taking from the settlor, according to the established rule of law that interests created by the exercise of a power must be read as inserted in the instrument creating the power. The 4th section, which may be read as immediately following the 2nd, since the intermediate section only refers to joint tenants, shows clearly that a distinction is intended to be drawn between general and limited powers, the first part referring to general powers. [The learned Baron here cited the first part of the section.] Now, take a very common case: an estate is devised to a person for life, with a general power to appoint by will, which is so exercised; reading the section as applied to that case, it would mean that, by the exercise of the power, that person would be deemed to be entitled at the time of his death to the property so appointed as a succession from the donor. The statute, therefore, seems to have created a constructive property in him in that which he gives to the appointee, and taking that with the definition of succession in the 1st section, he must be deemed at the moment of his death to be the owner disposing of the property as his own, and creating a new succession. This, I think, is not an unreasonable construction: and though I was much struck with the argument on the other side, I have not so strong an opinion on the subject as to be prepared to differ. With respect to the case of Re Barker, the judgment was certainly given under the circumstances that have been mentioned, and the then Attorney-General conceded the point as to the higher rate of duty. But if anything was said in that case that was wrong, there is no reason why we should not say so and rectify it. BRAMWELL, B.-I am of the same opinion, and as far as my opinion is concerned I think the point is very clear. I have no desire to stand up for the opinion I expressed in Re Barker, but I must say that I did not understand the distinction the then Attorney-General drew. I believe that the Crown is entitled to the higher duty under the 2nd section, and is not compelled to rely upon the 4th; but that if that is not so, then it is clearly entitled under the 4th. It is conceded by the defts. that their objection is purely technical; that if the estate had been devised in fee to Mrs. Fanshawe, and she had out of it given the annuity, the Crown would have been entitled to 10 per cent.; but it is said that here it is otherwise, because another form of words is used, not making any difference arising out of any matter of substance, contrary to the opinion of Lord Campbell expressed in Lord Braybrooke v. The Attorney-General, that this Act is to be construed according to the popular meaning of the words employed, and not according to the technicalities of the real property law of England or Scotland. Bearing that opinion in mind, what are the words of the 2nd section? I know well that an appointee takes under the creator of the power as May 5, 1866.] EL] In the Goods of JAMES COSNAHAN (deceased). a matter of legal expression, and if it was necessary to apply that rule here of course it must be applied. But there are no technical words in the 2nd section; would any person say that the appointees here became beneficially entitled by reason of the disposition of Admiral Fanshawe? You look at the causa proxima; Admiral Fanshawe is only the remote cause, but the disposition by reason whereof is the appointment. The section goes on to say that such disposition shall that be deemed to confer "succession;" a again is not a term of art; and the term "predecessor" shall denote the settlor, &c., "or any other person" from whom the interest of the successor is derived. I said, in Re Barker, that these are ordinary English words, and must be construed as such. Now, not one person in a thousand would say that the person from whom the annuitant's interest was derived was Admiral Fanshawe. I do not deny the existence of the general rule of law mentioned, but I say that it is not applicable to the construction of this section; and I deny, according to my understanding, that the H. of L. has held that it is. The 4th section, in my opinion, merely corroborates this view; but, supposing my opinion to be wrong on this point, then I think that inevitably, by the 4th section, the Crown is entitled. Though I appreciate the argument for the defts. that the object of that section was merely to show what in certain cases were successions, and who were to be predecessors, yet, when I find it here stated that the person appointing under a general power of appointment shall be deemed to be entitled to the property as a succession, it seems to me to follow that he must constitute a new terminus for the purposes of the Act. As to the distinction pointed out in Re Barker, that the 4th section would only make the grantee of a general power the predecessor where the power took effect after the passing of the Act, it cannot be that that can have been intended. I cannot see any reason for a difference with respect to such powers, and those coming into effect before the passing of the Act; and one difficulty in the way of it is, that the last part of the 4th section cannot be restricted in its effect to such powers. Therefore I think that the distinction under which the Attorney-General gave up the point in Re Barker was unfounded, and that the Crown is entitled to 10 per cent. under the 2nd section, or if not, the 2nd, at any rate under the 4th. PIGOTT, B.-I am of the same opinion. The construction I place on the 2nd and the 4th sections taken together as parts of one Act brings me to that conclusion. If the question turned on the 2nd section alone I should be inclined to think that the Crown was entitled to 3 per cent. only, on the ground that the appointee must be considered as taking from Admiral Fanshawe. But the 4th section clearly gives the person who exercised this power the property in the interest upon which she exercised it. I take the words of that section to mean, shall be deemed to be entitled to the property for all purposes. The words "as a succession are added to show that the donee of the power is to be liable to pay duty as such, but they leave the property vested in him for all other purposes. How then can it be consistent to say that the appointee takes from Admiral Fanshawe? She must take from Mrs. Fanshawe, who is one of the "other persons mentioned in the said section, and therefore a predecessor. If it is otherwise, the words ought to have had something added to them to control this effect, but the 2nd section makes no exception, and the reason is, that the two sections are to be read together. Judgment for the Crown. Attorneys for defts., Upton, Johnson, and Upton. [PROB. COURT OF PROBATE. April 17 and 24. 73rd section. In the Goods of JAMES COSNAHAN (deceased). Testamentary deed-Grant of probate in Isle of Man— Though the court will follow the grant of a foreign tribunal, of competent jurisdiction, in admitting a will cr other testamentary instrument to probate, it will not be bound by the procedure of such tribunal as to the person to whom the grant should be made. A testator interposed a trustee between his widow and the property. The Court, in order to effect his intentions, passed over the widow, who was first entitled, and made the grant to the trustee under the 73rd section of the Probate Act. The deceased, James Cosnahan, late of Douglas, Isle of Man, who died, leaving a widow and several children him surviving, on the 2nd Nov. 1865, made and executed a certain deed, whereby he assigned unto Richard Quirk, of the same place, innkeeper, all his real and personal estate upon certain trusts, which were to take effect after his decease, for the benefit of his widow and children. After his death the Archidecanal Court of the Isle of Man, on the 11th March 1866, granted letters of administration, with the said deed annexed, to Richard Quirk as A question executor according to the tener. having been raised in the registry whether the deed could be considered testamentary, and, if so, to whom the grant should be made, Searle moved for a grant of probate to Richard Quirk, as executor according to the tenor. A question had been raised in the registry whether the deed was testamentary, but it was unnecessary to consider that, because the court would probably follow the grant made by a competent court in the Isle of Man. Sir J. P. WILDE.-The court would follow its jurisdiction in making the grant, but the person to whom the grant should go is another question. Searle. The question would be, what character this person holds. He is trustee under the deed, but he has to do everything that an executor would have to do. Sir J. P. WILDE.-There is nothing in the deed giving him that power. It would be the duty of an executor to get in the property, and hand it over to him as trustee. Searle. The grant might go to him as universal legatee in trust. But Sir J. P. WILDE.-I don't think he is that. The first person entitled to the grant is the widow. the testator has interposed a trustee between the widow and the property, and I shall therefore best effect his intentions by passing over her in favour of Quirk, who has command of the property in the Isle of Man. The widow would be the person entitled to it, but I pass her by, and am prepared to make him the grant under the 73rd section. Letters of administration (with deed) granted. Div.] In the Goods of NICHOLAS CHOLWILL (deceased)-HUTCHINSON v. HUTCHINSON, &c. [BANK. In the Goods of NICHOLAS CHOLWILL (deceased). Administration-Person entitled to grant resident abroad-20 & 21 Vict. c. 77, s. 73. Where the person entitled to letters of administration to the personal effects of the deceased was resident in New Zealand, the Court made a limited grant to his aunt under the 73rd section of the Probate Act 1857, but ordered that justifying security should be given. Nicholas Cholwill, late of Moorwinston, in Cornwall, farmer, died on the 21st March 1866, intestate, leaving L. H. Cholwill, his lawful son and only next of kin, him surviving. He died possessed of a freehold farm of the value of 14001, and household furniture, stock, &c., of the value of 2001. Since his death the farm had been under the care of one of his servants, L. H. Cholwill being resident at Taranaki, New Zealand, and it was necessary that a representative should be appointed for the purpose of preserving the property. Dr. Spinks moved that a grant be made to Fanny Haynes, widow, the sister of the intestate, who was willing to become administratrix to his estate and effects for the benefit of her nephew, L. H. Cholwill. It should be limited until such time as L. H. Cholwill, or his lawful attorney, applied for the grant. Sir J. P. WILDE.-It is a reasonable application. The grant (limited) may go as prayed under the 73rd section, but the administratrix must give justifying security. DIVORCE AND MATRIMONIAL Tuesday, May 1. HUTCHINSON v. HUTCHINSON AND BARKER. Husband's petition-Confession of adultery by petitioner -Discretionary bar. Before the court will exercise the discretion which it possesses under the 31st section of the 20 & 21 Vict. c. 85 to dissolve the marriage, notwithstanding that the petitioner has also been guilty of adultery, it must be shown that in all other respects he is free from blame, and that, with the exception of the particular lapse proved or confessed, he had been a good and faithful husband to his wife. Where the husband (the petitioner) confessed adultery on intervention of the Queen's Proctor, and where his conduct to his wife was blamable, the Court reversed the decree nisi and dismissed the petition. This was a husband's petition for dissolution of marriage on the ground of the wife's adultery with the co-resp. It was heard by the Judge Ordinary on the 18th Nov. 1865, and a decree nisi was granted. The Queen's Proctor subsequently obtained leave to intervene on affidavits showing that the petitioner himself had been guilty of adultery; and the court was now moved to reverse the decree nisi and dismiss the petition. It appeared from the affidavits read in support of the application that the parties were married in 1847; that a few months after the marriage the petitioner communicated the venereal disease to his wife; that in 1848 he sailed on a voyage from Hull to Dantzic and returned in 1849 affected with fresh disease; that the resp., warned of the fact, refused to have intercourse with him, though they cohabited for a short time after his return; and that she then left him and went into the service of the co-resp., with whom she afterwards lived. adultery at Dantzic while in a state of drunkenness, The petitioner, in his affidavit in reply, confessed but denied that he had returned home afflicted with disease. The Solicitor-General (Dr. Spinks with him) for the Queen's Proctor. Dr. Wambey, for the petitioner, urged that his youth (twenty-one years of age) at the time he committed the adultery should be taken into account, and that the discretion of the court should be exercised in his favour. Besides, the offence had been condoned by the subsequent cohabitation, and the principle laid down in Anichini v. Anichini, 2 Curt. 213, should prevail. WILDE, J. O.-The question here arises under the 31st section of the Act, which gives the court a discretion to make a decree for dissolution of the marriage, notwithstanding that the petitioner may have been guilty of adultery; but so far as that discretion goes, it has never been exercised except under very peculiar circumstances. Without attempting to say that there is no act of adultery which might not be looked over for this purpose, still I think it is obvious that the person who asks the court to exercise a discretion in his behalf ought to be in all other respects free from blame. It is obvious that a husband who seeks that concession from the court ought to be able to say that but for this one lapse he had been a faithful and good husband to his wife. In this case, what are the facts that are admitted and plain? They are these: that within a few months after his marriage he communicates the venereal disease to his wife; and that not long after he goes on a voyage and commits adultery at a brothel with another woman. He pleads drunkenness in extenuation. But it must be observed that he was perfectly sober when he went there, and the court cannot accept the excuse offered. I am quite clear that he wilfully and in his senses committed adultery. How can I say under these circumstances that that which is venial in him is punishable in the wife? When it is said that the offence was committed a long time ago, it may be answered that the wife's adultery also took place a long time ago. His offence is no older than hers. Under these circumstances I must order the decree nisi to be reversed and must dismiss the petition. COURT OF BANKRUPTCY. March 27 and April 13. (Before Mr. Commissioner WINSLOW.) Ex parte THOMAS AND ANOTHER, re THOMAS. 24 & 25 Vict. c. 134, s. 110-Resolution by creditors under-Jurisdiction to annul-When exercised. Notwithstanding a resolution by creditors at the first meeting under the 110th section of the B. A. 1861 to suspend the proceedings in the bankruptcy, and administer the estate out of court, the court has jurisdiction to hear an application to supersede, and being satisfied of the consents of the creditors, will order the adjudication to be annulled. This was a petition to annul the bankruptcy, notwithstanding resolutions passed by the creditors under the 110th section of the B. A. 1861 to administer the estate out of court. The circumstances were as follows: The bankrupt was a builder and auctioneer carry. |