analogy thereto, a court of law would require a party pleading a plea of this sort to bring into court any money which the plaintiff had paid to them. It is not necessary to determine how that may be, for Adams was no party to this action, and the defendants could not be required in this action between the plaintiff and themselves to bring into court money which, in consequence of the rescission of the contract, they held for the use of Adams. It may be that Adams in fact was only agent for the plaintiff, and that the money in reality belonged to the plaintiff; but that was not known to the defendants, and it does not lie in the plaintiff's mouth to object to the defendants' plea on the ground that they had not discovered the whole of his fraud. Neither does it lie in the plaintiff's mouth to object to the plea, because it does not contain a statement that they were ready and willing to return to Adams the money he had paid them, that being a matter affecting the rights of a stranger to the suit, but in no way affecting the rights of the plaintiff. If, indeed, it could have been shown that the bill had been negotiated, so as to put it out of the power of the London Pianoforte Company to return it, or still more, if it had been the fact that Adams was willing to receive back the money, and that they had refused, there would have been ground for saying that they had already determined their election by affirming the contract; but nothing of the kind existed, in fact, the only ground on which the jury could have been asked to find that the London Pianoforte Company had affirmed the contract was, that they pleaded and relied upon a plea of stoppage in transitu which, if they could have proved it, would have entitled them to resume their vendor's lien for the unpaid balance of the price without parting with the cash, and which was therefore so far inconsistent with a plea of recission for fraud, the legal consequence of which would be that they could not retain the money. But different and quite inconsistent defences are raised every day in distinct pleas; and though the jury might perhaps have been asked on this to find that there had been an affirmance of the contract by holding the money, it was the plaintiff's business to raise the point at the trial, and ask that it should be submitted to the jury. Probably, if this point were present to the minds of the plaintiff's counsel at the time of the trial, they abstained from raising it from a well founded belief that the jury would have found nothing in favour of the plaintiff which they could reasonably have found against him. Having abstained from raising the point before, it is too late for them to do so now. We think, therefore, that the plaintiff is not entitled to a new trial in order to have this point left to a jury. And as we think that the facts proved did constitute a defence, we think the rule should not have been made absolute, and that we should now discharge it, leaving the verdict for the defendants. Rule discharged. Attorneys for the plaintiff, Gregory, Rowcliffe, Rowcliffe and Rawle, 1, Bedford-row, W.C., agents for Aspinall and Bird, Liverpool. Attorneys for the defendants, Pike and Son, 26, Old Burlington-street, W. [BANK. COURT OF BANKRUPTCY. Reported by A. A. DORIA and B. GUEST, Esqrs., Barristers-at-Law. Monday, Nov. 13, 1871. Ex parte PAGE; Re SPRINGALL. Practice Costs-Rules for the payment of If two creditors present separate petitions the costs of the creditor upon whose petition the adjudication is founded uill be paid in priority to the costs of the other creditors. THIS was an appeal from a decision of the registrar of the Norwich County Court on the 18th July last respecting the order in which the costs of liquidation and bankruptcy were to be paid. F. W. Springall, who was a grocer, residing in Norwich, filed his petition for the liquidation of his affairs about the month of June 1871, but the creditors at the first meeting failed to pass the necessary resolution, and shortly afterwards Messrs. Green and Wright, two of the creditors, filed a petition in bankruptcy against the debtor; the act of bankruptcy being the petition before mentioned. On the next day Mr. Isaac Page, the father-inlaw of Springall, filed a second petition against him in bankruptcy founded upon an admission of insolvency by the debtor in the prescribed form, which was duly filed. Upon this latter petition the debtor was by his own consent immediately adjudicated bankrupt. The registrar of the County Court decided that bankruptcy were to be paid in the following the costs of the parties to the liquidation and order :: Receiver in liquidation, first; receiver in bankruptcy, second; the costs of the trustee and his solicitor, third; the costs of Green and Wright on their petition, fourth; the costs of Page on his petition on which adjudication was pronounced, fifth. Against this decision Mr. Page appealed. Reed for the respondent, Mr. J. Green, the trustee. : The CHIEF JUDGE. The question in this case involves a point of construction. I am of opinion that the trustee is in the first place to deduct from the amount in his hands the actual disbursements for realisation, and that the remainder which forms the net proceeds of the estate referred to in the 31st rule, is to be distributed in the following manner and in so far as the order made by the registrar differs from the present it must be varied as follows: Receiver's charges under the petition for liquidation, first; receiver's charges in bankruptcy, second; solicitor's costs of the liquidation, third; the costs of Mr. J. Page, the petitioning creditor in the bankruptcy, fourth; the trustee's and his solicitor's costs in the bankruptcy, fifth; the costs of Messrs. Green and Wright, of the petition filed by them, and not proceeded with, sixth. The appeal must be dismissed, but without costs. Solicitors for the appellants, Flux and Leadbitter, for W. H. Tillett and Co., Norwich. Solicitors for the respondents, Linklaters and Hackwood, for Coaks, Norwich. CHAN.] Equity Courts. FARQUHAR v. HADDEN. COURT OF APPEAL IN CHANCERY. Saturday, Nov. 4, 1871. Will-Construction Share in leasehold premises belonging to a partnership firm-Bequest by one partner to another-Extent of interest which passes thereby. F., who was a partner in a firm of solicitors, which consisted of himself and L., and whose business was carried on in leasehold premises of which F. and L. were joint tenants, by his will bequeathed to his partner, L., all his share of the leasehold premises in which his business was carried on, and all his share of the office furniture, books, and other office or household effects therein, for his own absolute use and benefit. After F's death the assets of the partnership proved to be insufficient for the payment of the partnership debts, though F's private estate was amply solvent : Held (reversing a decision of Stuart, V.C.), that the share of the leasehold premises belonging to F., being subject to the payment of the partnership debts, nothing passed to L. under the above gift. THIS was an appeal by the residuary legatees under the will of Mr. Thomas Newman Farquhar, a solicitor, and a partner in the firm of Johnston, Farquhar, and Leech, who carried on their business at 65, Moorgate-street, in the city of London, and at 4, Old Palace-yard, in the city of Westminster, from a decision of Stuart, V.C., with reference to the construction of a bequest contained in Mr. Farquhar's will, in favour of his partner, Mr. Joseph Leech. At the time of Mr. Farquhar's death, as well as at the time when he executed his will, the only partners in the firm of Johnston, Farquhar, and Leech were Mr. Farquhar and Mr. Joseph Leech, they being interested therein in equal shares. Mr. Farquhar executed his will in Oct. 1863, and he died on the 30th July 1866. The bequest in question was as follows: "I bequeath all my share of the leasehold premises in Moorgate-street, and in Old Palace-yard, or elsewhere, in which my business is carried on, and all my share of the office furniture, books, and other office or household effects therein respectively, to my partner, Joseph Leech, in case he shall be living at my decease, for his own absolute use and benefit." The lease of the premises in Moorgate-street was of considerable value; it had been granted to Messrs. Farquhar and Leech as joint tenants. The Vice-Chancellor in his judgment assumed that they were tenants in common in undivided moieties of these premises, but the fact was as already stated. The lease of the premises in Old Palace-yard was of no value. After Mr. Farquhar's death it was discovered that the partnership assets were insufficient to pay the partnership debts. This arose from the circumstance that the drawings-out of the partners had been based upon an excessive valuation of some of the partnership assets. The private estate of Mr. Farquhar was amply solvent. The above bequest to Mr. Leech was never assented to by Mr. Farquhar's executors, but in 1867 it was arranged Vol. XXV., N.S., 636. [CHAN. that the lease of the premises in Moorgate-street, and the office furniture and books therein, should be purchased by Mr. Leech for 8800l., the half of which, viz., 44001., he was to pay to Mr. Farquhar's executors, and this sum he accordingly paid to them. This arrangement was made expressly without prejudice to any question as to what his rights might be under the above bequest. This suit was instituted to administer Mr. Farquhar's estate, and to carry into execution the trusts of his will. Mr. Leech presented a petition in the suit, by which he prayed that it might be declared that the above bequest to him was a bequest of an undivided moiety of the leasehold premises in Moorgate-street, and of the other particulars comprised therein; without regard to the state of the partnership assets and liabilities at the date of the death of Mr. Farquhar, and that in the adjustment of the accounts between the petitioner and the executors of Mr. Farquhar he was entitled to have credit given to him for the 44001. which he had paid for the purchase of Mr. Farquhar's moiety of the Moorgate-street premises and other particulars. Stuart, V.C., made an order in conformity with the prayer of this petition, and from this decision Mr. Farquhar's residuary legatees (who were his children) appealed. on. The material portion of the Vice-Chancellor's judgment was as follows: "This question seems to me to be reasonably clear, if it is considered that it is a question which arises in the administration of the estate of one partner who has chosen to make his surviving partner an object of his bounty. Mr. Farquhar, by his will, in clear and distinct terms, has specifically given to Mr. Leech all his share of the leasehold premises in Moorgate-street in which the business was carried The specific matter of the bequest is very clearly and distinctly stated. The testator and Mr. Leech were tenants in common of this leasehold property, each of them being entitled to an undivided moiety thereof, and, in language as distinct, I think, as any language could well be, that undivided moiety which the testator had he has given to his partner. But, in the administration of the private estate of the testator, not in the administration of the affairs of the partnership, it is said that there is an equity as between the residuary legatees and this specific legatee; and that I am to consider that that which the testator gave is not that which he has described, but only such an interest in that leasehold property as he might have after the affairs of the partnership were wound-up. Now, if the testator had said that, of course this specific legatee could get no more than the testator desired that he should have. But there is nothing in the will to show anything of the kind. The case is reduced to this-it is a claim by the residuary legatees to that which was specifically given to another object of the testator's bounty. This is ridiculous, because a specific legatee is entitled to the specific thing bequeathed to him, unless the testator's estate is insolvent. In this administration suit, upon taking the accounts of the assets and of the debts and liabilities of Mr. Farquhar, it appears from the chief clerk's certificate that there is no insolvency. In administering the estate of a testator, as to which no creditor has come in to make any claim, I am asked to say that a specific legatee shall be disappointed because the residuary legatees apprehend that in winding-up the partnership affairs there may be some demand arising against the testator's separate estate. The effect of this bequest to Mr. Leech was to give him specifically this part of the partnership property. As to the rights of the creditors of the partnership, that is quite another thing; because each partner is liable to the whole extent of his assets to make good the partnership debts; and it can make no difference that the whole of the testator's property, as well as the whole of Mr. Leech's property, is applicable to make good the partnership debts to the utmost farthing, in proportion to the share of each partner in the partnership, and that this is property belonging to the testator as assets applicable to satisfy the partnership debts. I propose to make an order declaring that, it appearing by the chief clerk's certificate that no person has come in under the decree in this cause to claim any debt out of the estate of the testator in the cause, the petitioner, as specific legatee thereof under the will of the testator, is entitled to all the share of the testator of and in the leasehold premises in Moorgate-street and Old Palace-yard, and the other things mentioned in the bequest. Sir R. Palmer, Q.C., Greene, Q.C., and T. Stevens, on behalf of the appellant, argued that the interest of a partner in the assets of the partnership, could only be his share of those assets after payment of the partnership debts. This was well settled by a series of authorities, of which they cited: West v. Skip, 1 Ves. Sen. 239; The partnership estate being in this case in solvent, there was nothing which could pass under the bequest to Mr. Leech. Dickinson, Q.C. and Daniel Jones, on behalf of Mr. Leech, argued that the cases cited on the other side did not prove that partners could not agree how a particular portion of the assets should be applied. The question to be decided was merely as to the intention of the testator. There was no question about the rights of the creditors of the firm, for Mr. Farquhar's estate was ample. There could be no doubt that he could by deed in his lifetime have given his share in the leasehold premises to Mr. Leech, and it ought to make no difference that he had expressed his wish by his will. The fact that the partners happened to have overdrawn could not alter the intention of the testator. Without calling for a reply, Lord Justice JAMES said: With deference to the Vice-Chancellor, I am bound to say that I entertain no doubt whatever upon the result of the argument as to the proper construction to be put upon this bequest. The question is, what is the natural, grammatical, and ordinary meaning of the words the testator uses. He says, "I bequeath all my share of the leasehold premises in Moorgate-street and in Old Palace-yard, or elsewhere in which my business is carried on, and all my share of the office furniture," and so on, partner." It is admitted that if those words had been used in a bequest to anybody else, it would only have given the share which the testator had. What he had at the time of his death was a right to this property, subject to what in the ordinary course of administration would be the application "to my [CHAN. of the assets of the partnership in payment of the partnership debts. What is contended is, that it was not merely a gift of the interest of the testator in the property, but a gift of the interest of the testator in these particular parts of the partnership assets with an additional gift of so much of his residuary personal estate as should be required if necessary to free these particular parts from their ordinary primary obligation to pay the partnership debts. I cannot find anything of that kind in the words, and to say that that was the intention of the testator is to say that you may guess at it from something other than what he has said. If I were to place myself now in the position of the testator, and try to guess at what his meaning was, this would be the last thing I should guess that he ever intended to do-viz., that in case the other assets should turn out to be insufficient for the payment of the partnership debts, then his partner was to call on his estate to contribute more than its ordinary share to the payment of these debts, in order to give effect to this bequest. If I were to guess at his meaning, that would be the last thing that I should guess he intended. If the will had been, as the Vice-Chancellor said, "a gift of my moiety of it," and the testator had really had at the time of his death as tenant in common a legal and equitable estate in this leasehold property which would pass to his executors, it might have required some further consideration whether the gift would not then have been a gift of the moiety free from debts, and whether Locke King's Act would not then have applied. But we have not to deal with such a case, we have to deal with a case in which there was something answering the description of "all my share of the leasehold premises." We have to give effect to those words by giving to Mr. Leech that thing which at the time of the testator's death was, according to the ordinary use of language, described by the words, "All my share." Mr. Leech at law took all the assets of the partnership, and became liable to all the debts of the partnership. He was the only person who, at the time of the death of the testator, took all the assets, and became liable to all the debts of the partnership. The sole question is whether he has a right to call on the testator's estate to pay more than his share of the debts, according to the ordinary course of administration. No such right has been given to him; his equity is only to call on the testator's estate to concur with him in the payment of the partnership debts when all the partnership assets (including this specific devise) have been applied according to their primary liability in payment of the debts of the partnership. I am of opinion, therefore, that the Vice-Chancellor's order is erroneous, and ought to be reversed. Lord Justice MELLISH said: I am of the same opinion. Let us first consider what is the plain, natural, and grammatical meaning of the words which the testator has used. Now, the testator has no interest in this house at all except his interest as partner with Mr. Leech; they were joint tenants of the lease, and the testator's interest consisted simply of that which a deceased partner had in equity in the assets of the partnership, that is to say, an interest subject to the payment of the debts of the firm. That being his interest, he bequeaths "all my share of the leasehold premises and of the office furniture, and books, &c.," to his partner, Mr. Leech. It is said that that is an inaccurate description. One does not see that there is substantially any inaccurate description at all. He had an interest in the property subject to the payment of the debts, such an interest as a personal creditor of his own might have taken in execution. That was the interest which he had, and he leaves it to his partner. That may not be conclusive, if we find in the surrounding circumstances and facts of the case (which we are entitled to take into consideration), and in the language of the rest of the will, anything which shows us that he really did intend, at all events, whether the partnership was solvent or not, that Mr. Leech should have this property. But in order to depart from the grammatical construction we must be convinced that the testator contemplated the events which have happened, and that he intended that, in the events that have happened, Mr. Leech should take under this gift. I am convinced that he did not contemplate those events at all; he thought that the partnership was perfectly solvent, and he intended on that assumption that his partner should continue to be in the personal enjoyment of the partnership property for the purpose of carrying on the business. It is plain to my mind that the real object of the testator in making the gift was that he thought his partner would have a much greater enjoyment of this property than anybody else, and the reason he gave it him was that he might continue in that personal enjoyment. That shows plainly that he never thought the partnership assets were insolvent, so that his executors and the creditors would then be entitled to have this property sold to a third person if it was necessary for the payment of the partnership debts. Therefore, I am clearly of opinion that, either he never contemplated the event of the partnership being insolvent at all, or, if he did contemplate that, he did not intend the legacy in that event to take effect. If we were to deprive the children of the testator of their share of the residue when we cannot see that the testator intended to do so, it appears to me that we should be putting a very wrong construction upon the will. Order of Vice-Chancellor discharged and petition dismissed with costs. Solicitors for the appellants, Lyne and Holman. Solicitors for the petitioner, Johnston, Farquhar, and Leech. Saturday, Nov. 4, 1871. (Before the LORDS JUSTICES.) Costs-Taxation-Counsel's fees-Allowance of fees [CHAN. The suit was instituted by two partners, Messrs. R.T. Cousens and Thomas Gooch, against their partner, Mr. J. S. Cousens, for the purpose of obtaining a rectification of the partnership articles. It was instituted as a cross suit to one which Mr. J. S. Cousens had instituted against Messrs. R. T. Cousens and Thomas Gooch. Ultimately, both the bills were dismissed with costs. In the suit which was instituted by J. S. Cousens, he in the first instance retained a Queen's Counsel. Before the hearing of the two suits (which were heard together), the junior counsel who had drawn the pleadings for J. S. Cousens, was called within the bar,. and consequently another junior counsel was instructed in his place, and briefs in behalf of J. S. Cousens were delivered to the Queen's Counsel originally retained, the original junior, then become a Queen's Counsel, and the new junior. No retainer in the cross suit had been given to the Queen's Counsel who had been in the first instance retained in the original suit, but upon the hearing briefs in the cross suit on behalf of the defendant, J. S. Cousens, were delivered to all the three counsel who appeared for him in the original suit. The bill in the cross suit having been dismissed with costs, to be paid by the plaintiffs, R. T. Cousens and Thomas Gooch to the defendant, J. S. Cousens, the taxing master, upon the taxation of the costs, allowed the fees of all the three counsel. The plaintiffs objected to the allowance of the fees of the leading Queen's Counsel to whom no retainer in the cross suit had been given,. as it was given in the original suit. The plaintiffs mnade a further objection to the amount of the fees which the taxing master had allowed. The taxing master, in his certificate, made the following obsersations:-" The case as to the three counsel is this -Mr. Eddis had been the defendant's junior in this suit, but, prior to the hearing, he took silk. The practice in this office prior to the decision in Horsley v. Coe (L. Rep. 7, Eq. 464; 20 L. T. Rep. N. S. 473), by Lord Romilly, was to allow the costs of the third counsel in such cases; and I conceive that I am bound, whatever my opinion may be, to follow that case until a court of coordinate or superior jurisdiction has ruled other wise." The plaintiffs applied to the Vice-Chancellor to vary the taxing master's decision, but his Honour declined to do so, and from this decision the plaintiffs appealed. Osborne Morgan, Q C. and Lindley, on behalf of the appellants, argued that the magnitude neither of the original suit nor of the cross-suit was such as to justify the allowance of the costs of three counsel upon a taxation as between party and party. That was the reason why the costs of three counsel were allowed in Pearce v. Lindsay (John. & M. 702; 1 De G. F. & J. 573; 2 L. T. Rep. N. S. 169). There was no reason why a brief in the cross-suit should have been given to the Queen's Counsel who was retained in the first instance on behalf of J. S. Cousens in the original suit. [Lord Justice JAMES.-In practice it would be found impossible to do without the same counsel in the cross-suit as in the original suit.] Carter v. Bernard (16 Sim. 157), in which the costs of three counsel were allowed, was a case of a very special nature. Since Green v. Briggs (7 Hare, 279) until Horsley v. Cox (ubi sup.) it had always been the practice to disallow the costs of a third counsel as, for example in the case of Brown v. The Midland Railway Company (10 Hare App. 45) -though in that case the junior who drew the pleadings was called within the bar before the hearing. The question now to be decided was, whether the decision in Horsley v. Cox was applicable to every case? The taxing-master, by the language of his certificate, evidently invited the parties to take the opinion of the Court of Appeal on this question. They also urged that the taxing-master had allowed fees of excessive amount. Without calling upon W. F. Robinson, who appeared on behalf of the defendant, J. S. Cousens, Lord Justice JAMES said that he did not mean to lay down as a rule that in every case where the junior who had drawn the pleadings was called within the bar before the hearing of the cause, the fees of three counsel ought to be allowed upon taxation. The question to be considered was whether the nature of the case was such that, according to the ordinary practice of litigants, it would be proper to give a retainer to a Queen's Counsel in the first instance. If the case was one in which it would be proper according to that practice to give a retainer to a Queen's Counsel in the first instance, then upon that hearing it would be right to give briefs to three counsel-viz., the Queen's Counsel originally retained, the Queen's Counsel who originally drew the pleadings, and a new junior, and the costs of all the three counsel ought to be allowed on taxation, for they would not be a mere matter of luxury. The taxing master's decision was therefore right in this case, and with regard to the amounts of the fees which he had allowed, the appellants ought to have been content with the decision of the Vice-Chancellor, and not to have brought such a question before the Court of Appeal. The appeal would be refused with costs. Lord Justice MELLISH expressed his concurrence. Solicitors for the plaintiffs, H. Wellington Vallance. Solicitors for the defendant, Flux and Co. Nov. 7, and 11, 1871. (Before the LORDS JUSTICES.) RADFORD v. WILLIS. Vendor and purchaser-Specific performanceWill-Construction- VestingDoubtful title "Unmarried"-Gift to trustees on trust for an unmarried woman for life for her separate use, and after her death to convey to her husband in fee-Whether the estate vests in the husband immediately on his marriage. A testator devised and bequeathed certain freehold, leasehold, and personal property, and the rents, issues, and profits thereof to trustees upon trust to pay to or permit his daughters, A. and L., to receive in equal shares for their respective lives, for their separate use, and after their respective deaths upon trust to convey and assure, assign, pay and transfer the whole thereof unto and equally between the respective husbands of them, his said daughters, to hold to them respectively, and their respective heirs, executors, administrators, assigns, according to the several natures and qualities thereof respectively. Provided always that if either of his said daughters should happen to depart this life unmarried, then and in such case [CHAN. the share of such daughter, in and to his aforesaid trust estate should accrue and belong to the survivor of them, his said daughters, and be taken and enjoyed by her for her life in like manner as was thereinbefore directed with respect to her original share, and on her decease the whole should devolve to, and should be conveyed and assured, assigned and transferred to the husband of his said surviving daughter, as was thereinbefore directed with respect to her original share. After the testator's death, L. married, and her husband died in her lifetime, having by his will given to her all his interest under the testator's will. Subsequently, a portion of the freehold property devised by the testator on trust for L. and her husband, was put up for sale, and at the sale, W. became the purchaser. He, afterwards, upon investigating the title, objected to complete his purchase, upon the ground that L. might marry again, and that if her second or any subsequent husband survived her, he would, under the will of the testator, be entitled to the property put up for sale. Thereupon, a bill for specific performance was filed against W., and he demurred to the bill for want of equity: Held, that, upon the true construction of the testator's will, the property given to the trustees upon trust for L. and her husband, vested in the first husband whom she married, subject to her life estate, and that this vested remainder passed under the husband's will to L. Held, therefore (reversing the decision of Wickens, V.C., 24 L. T. Rep. N. S. 574), that the title was one which the court would compel the purchaser to accept. Held also, that the word "unmarried" in the above gift over meant "without ever having been married." THIS was an appeal by the plaintiffs, who were vendors, seeking to enforce specific performance of a contract for the sale of land, against the allowance by Wickens, V.C., of a demurrer for want of equity put in to the bill by the defendant, the purchaser. The hearing of the demurrer by the Vice-Chancellor is reported 24 L. T. Rep. N. S. 574, where the facts of the case are so fully stated that it is unnecessary to repeat them. Greene, Q.C. and H. M. Williams, on behalf of the plaintiffs, argued that as soon as the testator's daughter married, the property, subject to her life estate, vested absolutely in her husband. The direction that the trustees should convey to the husband after the daughter's death was merely given in addition to secure the life estate of the daughter. This construction of the will was clearly the right one, and it would be in accordance with the disposition of the court in favour of an early vesting: Driver v. Frank, 3 M. & S. 25; 8 Taunt. 468; 1 Jarm. on Wills (3rd edit.) 304, 305; 2 Fearne's Contingent Remainders (10th edit.). The word " unmarried" in the gift over must be construed as meaning "without ever having been married :" Re Saunders Trusts, L. Rep. 1 Eq. 680; |