June 1841, leaving her husband surviving. On the 5th of May 1841 she made a will in these words :

"I, Caroline Shelford, of Broadclest, do, by this my will, give to the Rev. Thomas Shelford, Rector of Lambourne, Essex, two thousand six hundred pounds, and I nominate and appoint my brother, the Rev. William Barker, executor of this my will."

At the date of her will, and at her death, the property subject to the trusts of the settlement amounted, in value, to about the sum of £2600, and Mrs. Shelford had no other property, in her own right, or which she had any power to dispose of by will, save only these trust funds.

The Plaintiff, Leonard Shelford, the administrator of the Rev. Thomas Shelford, by this bill, insisted that the will of Mrs. Shelford was a valid execution of her power under her marriage settlement. The Defendant, Mr. Barker, one of her next of kin, contended the contrary.

Mr. Lloyd and Mr. G. L. Russell, for the Plaintiff. This will is a valid execution of the power, for there is nothing on which it can operate, except the settled property. Curteis v. Kenrick (3 Mee. & W. 467); Churchill v. Dibben (9 Sim. 447, note); I Sug. Powers (pp. 417, 424, 6th ed.).

1

It is not necessary that there should be an express reference to the power, 1 Sug. Powers (p. 388, 6th ed.), if an intention to dispose of the property sufficiently

appears.

[12] Secondly, the late Wills Act, 1 Vict. c. 26, is applicable to the present will, and this is a general power; therefore, under the 27th section, the general bequest operates as an appointment.

Mr. Selwyn and Mr. C. C. Barber, for one of the next of kin (after stating that the property consisted of one-fourth of £5000 and three thirty-seconds of a residue, invested in railway shares, consols and a policy, but that they asked no inquiry on the subject, proceeded). This will neither refers to the power nor to the property, and is not an execution of the power. Lovell v. Knight (3 Sim. 275) was affirmed by the Lord Chancellor and cannot be reversed here, and that and the subsequent case of Lempriere v. Valpy (5 Sim. 108) govern the present. The authorities as to real estate, as Curteis v. Kenrick (3 Mee. & W. 467) and Churchill v. Dibben (9 Simons, 477, note) are inapplicable, for a feme coverte can never devise real estate except by means of a power, but she may bequeath personalty in the absence of any power. This does not profess to be an appointment of any particular property, but is a mere bequest of a pecuniary legacy of £2600, without reference to any property out of which it was to be paid.

The Wills Act does not alter the old law. The 8th section provides "that no will made by any married woman shall be valid, except such a will as might have been made by a married woman before the passing of the Act." But, besides, this is not "a bequest of personal property described in a general manner" within the 27th section, but is a mere gift of a legacy. Jarman on Wills (p. 586, 1st edit.). Mr. Jenkinson, for Acland.

[13] Mr. Lloyd, in reply. The 8th section only refers to the testamentary capacity of a married woman, and says that it is not to be extended. The last objection is answered by the decision in Hawthorn v. Shedden (25 L. J. (Ch.) 833). THE MASTER OF THE ROLLS. I will consider this case.

THE MASTER OF THE ROLLS [Sir John Romilly]. This case bears a close analogy to the last, and it has been for this reason that I have been desirous of giving judgment in them both together.

The question is, whether the will of Mrs. Shelford is a good execution of the power, and I am of opinion that it is.

The distinction which appears to me to exist between the present case and the last is this: that here, unless as an execution of the power, this will has nothing that it can operate upon. The power was only to be exercised during coverture, and, except under a power or by the licence of her husband, she could not make a will. It is stated that, to be a good execution of the power, the will must either refer to the power or to the property, and that here it does neither. But I think that this is stated too broadly; the case of Churchill v. Dibben, reported in the note to the case of Curteis v. Kenrick (9 Sim. 447), is ample authority for the purpose of

supporting such a bequest as this, as a due execution of the power; and the remarks of the Judges, during the argument of the case in Curteis v. Kenrick (3 Mee. & Wels. 461) are also conclusive, [14] that the will must be taken to be an execution of the power where the words of it would have nothing to operate upon except it were so considered. I do not feel pressed by the argument that the words of the will import a mere pecuniary bequest, and that it contains no disposition of the residue. The testatrix knew of what her property consisted when it was settled, it was a share of money, and she makes a will giving a sum of money to a person. She obviously considered that the bequest would be paid out of the property which she had the power of disposing of, and the distinction between property and power does not appear to me to exist in the present case, as I was reluctantly, on the state of the authorities, compelled to hold that it did in the last case.

The statute of 1 Vict. c. 26 had clearly no application to the last case, which was not the case, as this is, of a general power of appointment, to which alone the statute refers, and in this case, I do not think it necessary to have recourse to the statute of 1 Vict. c. 26, to support the validity of this bequest as an execution of the power; but if it were necessary to do so, without expressing any opinion on the question whether the words of the statute go to the full extent which the ViceChancellor Stuart seems to have ascribed to them in the case of Hawthorn v. Shedden (25 L. J. Ch. 833), still the Legislature has informed the donee of a power, that she may dispose of personalty, which is subject to her general power of appointment, by any legal bequest of personal property described in a general manner, and that the personalty subject to such powers would be included in such bequest, even though she had other and greater property of her own. This state of the law (the knowledge [15] of which must be imputed to the testatrix) might, in my opinion, if necessary, fairly be brought in aid of the construction of the testamentary instrument in this case, where the gift in her will cannot be satisfied without resorting to the power.

However, as I have already observed, I think this case is governed by the decision in Curteis v. Kenrick (9 Sim. 443), and the observations there made: that it is not affected by the case of Lovell v. Knight (3 Sim. 275), and that the will of Mrs. Shelford is a good execution pro tanto of the power contained in the settlement made on her marriage.

[15] HUNTER v. AYRE. Nov. 4, 1856.

Where, after plea of the Plaintiff's outlawry, the outlawry has been reversed, the Plaintiff may now obtain an order for liberty to proceed with the cause.

The Defendant pleaded the Plaintiff's outlawry and the outlawry having been afterwards reversed,

Mr. Southgate now moved ex parte that the Plaintiff might be at liberty to proceed with the cause. He referred to Lord Clarendon's Order (Beames's Orders, 175, and 1 Saunder's Orders, 298), in which it is stated, "And after the said outlawry reversed, the Defendant, upon a new subpoena served on him, and payment unto him of 20s. costs, shall answer the same bill as if such outlawry had not been."

He also cited Hunter v. Nockolds (6 Hare, 459), where, after a plea of outlawry of the Plaintiff, the outlawry was reversed, it was held that the Plaintiff was entitled to an order of the Court for the issue of a new subpoena against [16] the Defendant, and that, upon service of such subpoena and payment of 20s. costs (as directed by Lord Clarendon's Order), the Defendant should answer the bill.

He observed that, as the subpoena had since been abolished, an order of the Court,

to the effect now asked, was the proper substitute.

THE MASTER OF THE ROLLS [Sir John Romilly] so ordered accordingly. (NOTE.— See Mitford, 227, 4th ed.)

[16] HILL v. TRENERY. Dec. 6, 1856.

A husband, on his marriage, assigned a policy on his life to trustees as a provision for his wife, but he afterwards became unable to pay the premiums. The Court authorized the trustees to sell the policy and accumulate the produce.

In 1839 Mr. Trenery, on his marriage, assigned a policy on his own life for £1000 to the Plaintiffs, upon trust to receive the amount on his death, and hold the same in trust for Mrs. Trenery his wife. He covenanted with the trustees to pay the premiums.

Mr. Trenery had separated from his wife, and was resident at Gibraltar, and had become unable to pay the premiums.

The trustees filed this claim against Mr. and Mrs. Trenery, for indemnity and protection, and to have the policy sold, and out of the produce to have a sum of £24 advanced by them for the last premium repaid.

Mr. C. Barber, for the Plaintiffs.

Mr. Torriano, for the Defendant, the husband, asked that the trustees might be directed not to sue him on the covenant.

THE MASTER OF THE ROLLS [Sir John Romilly] (the wife not opposing) [17] ordered the policy to be sold, and the trustees to be paid the £24 out of the produce. He directed the surplus to be paid into Court and accumulated, and that the husband should not be sued on the covenant.

[17] Re HOOD. Jan. 23, 1856.

An order to ascertain debts and liabilities under Sir George Turner's Act cannot be obtained at the Secretary's Office at the Rolls upon petition of course.

Mr. Beavan moved for an order to ascertain debts and liabilities under Sir George Turner's Act (13 & 14 Vict. c. 35, s. 19).

He stated that although the statute (13 & 14 Vict. c. 35, s. 19) specifically provided that the order should be obtained "on motion or petition of course," yet, on application at the Secretary's Office for the order, it had been ascertained that such orders were now never made there upon petition of course. (In re Harrold, 15 Jur. 763.)

THE MASTER OF THE ROLLS [Sir John Romilly] said he believed that such was the present practice, and that he would now make the order.

[18] FAREBROTHER v. WODEHOUSE. June 27, Nov. 4, 1856.

[S. C. 26 L. J. Ch. 81; 2 Jur. (N. S.) 1178; 5 W. R. 12. See In re Jeffery's Policy, 1872, 20 W. R. 857; Forbes v. Jackson, 1882, 19 Ch. D. 620. Discussed, Nicholas v. Ridley [1904], 1 Ch. 192.]

Where two properties are mortgaged by A. to B. for distinct sums, and C. is surety for one only, the right of B., to retain all the securities until repaid both debts, overrides the right of C. to have the benefit of the securities for that debt for which he is surety.

The Defendants lent A. B., at the same time, two sums of £2000 and £3000 on distinct securities, and the Plaintiff was surety for the first sum. Held, that the Plaintiff, on paying the £2000, was not entitled to have a transfer of the securities held for that sum, until the Defendants had also been paid the £3000.

In 1841 the Rev. Robert Croughton, the vicar of Melton Mowbray, applied to the Norwich Union Life Insurance Company for a loan of £5000, and it was finally agreed between them that this should be accomplished by two separate and distinct loans, one for £2000, and the other for £3000.

It was agreed that the £2000 should be advanced to Mr. Croughton, on the security of his bond and warrant of attorney, and the assignment of a policy in the National Loan Fund Assurance Office, effected on the life of Mr. Croughton, but standing in the names of the Plaintiff and Mr. Broadhurst, and also on the further security of a demise of the vicarage of Melton Mowbray, and provided the Plaintiff would become bound as security to the Norwich Union Company for the due payment of the £2000 and interest, and for the keeping on foot the policy of insurance.

It was also, at the same time, agreed that the £3000 (the residue of the £5000) should be advanced on other securities, wholly distinct and separate from the securities provided for the repayment of the £2000.

This arrangement was carried into effect, and the £5000 was advanced accordingly, £2000 on the security already referred to and the suretyship of the Plaintiff, and £3000 on other and distinct securities. In order to effect this arrangement, and complete the suretyship of the Plaintiff, he executed a bond on the 7th of May [19] 1841, in a penal sum of £4000, to which a condition was annexed, that the bond was to become void if Mr. Croughton paid the interest and premiums, and if the Plaintiff indemnified the Defendant against all loss in respect of the defaults or neglect of Mr. Croughton, or the insufficiency of the securities. Mr. Croughton failed to pay the interest. November 1842 a sequestration was issued by the Norwich Union Company against the living of Melton Mowbray, under which a considerable part of what was due to them, in respect of the £2000, was paid. Some portion, however (about £900), remaining still unpaid, the Norwich Union Company, on 29th November 1854, sued the Plaintiff at law on his bond. The Plaintiff was willing to pay the amount claimed, provided the securities held by the Norwich Union Company for the £2000 were handed over to him, but this they declined to do. The Plaintiff endeavoured, in the action, to plead the case made by him in this suit, but that failed, and thereupon, in June 1855, he filed the present bill, praying for an injunction to restrain the further proceedings in the action, and offering to pay all that was due from him in the action, on having the securities, on which the £2000 was advanced, delivered up and assigned over to him. The right to the possession of these securities was the only question in this cause. The case came before the Vice-Chancellor Wood in July 1855, on a motion for an injunction, when the following order was made :

The Plaintiff, C. Farebrother, undertaking to give judgment in the action for £893, 4s. 10d. and costs, to be dealt with as the Court should direct, it was ordered that an account should be taken of what was due to the Defendants from the Plaintiff on his bond; and that the Plaintiff should pay the amount to the Defendants, within one month after the date of the Chief Clerk's [20] certificate; and upon payment it was ordered that the Defendant should deposit with the Clerk of Records and Writs the policy of insurance of the 14th of May 1839, the bond of the 7th of May 1841, and the indenture dated the 7th of May 1841. And it was ordered that execution upon the judgment in the action should be stayed.

The Chief Clerk certified, on the 19th of February 1856, that £837, 16s. was due, and this the Plaintiff paid. The cause now came on for further consideration, when the question was, whether the deeds and documents deposited under the order of the Vice-Chancellor were to be delivered to the Plaintiff, or whether they were to be retained by the Defendant until the whole amount due from Mr. Croughton to the Norwich Union Life Assurance Company, in respect both of the £2000 and £3000, had been paid.

Mr. Roupell and Mr. Giffard, for the Plaintiff, insisted on the Plaintiff's right to have the securities for the £2000 delivered over to him, relying on the principle of equity, that where a surety has paid to the creditor the debt of the principal, he is entitled to stand in the shoes of that creditor, and to have the benefit of all his securities against the principal debtor.

Mr. R. Palmer and Mr. Baggalay, for the Defendants, insisted that the Defendants were entitled to retain the securities. They relied on the rule that where two separate estates are mortgaged to secure two separate debts the mortgagor cannot redeem one without redeeming the other. That although it was true that, as against the debtor, a surety who has paid off the debt stands in the place of the creditor, still that as against the creditor, he stood only in the place of the debtor; [21] that,

consequently, as the debtor here owed £5000, the Plaintiff, when he had paid off £2000, was not entitled to have these securities delivered up to him without paying the additional £3000; for the Defendants were entitled, as against Mr. Croughton, and consequently as against the Plaintiff his surety, to tack both sets of securities and hold them until the whole debt had been repaid.

The following authorities were cited and relied on: Craythorne v. Swinburne (14 Ves. 160); Newton v. Chorlten (10 Hare, 646, and 2 Drew. 333); Titley v. Davis (2 Eq. Ca. Abr. 604, pl. 35, 36, and 15 Viner's Abr. pl. 19, p. 447); Barnes v. Racster (1 Y. & C. (C. C.) 401); Higgins v. Frankis (15 L. J. (Ch.) 329); Williams v. Owen (13) Simons, 597); Bowker v. Bull (1 Simons (N. S.) 29).

THE MASTER OF THE ROLLS reserved judgment.

Nov. 4. THE MASTER OF THE ROLLS [Sir John Romilly]. This cause involves a question of very great importance, on which I felt considerable doubt, as it appeared to me, at first, to bring two principles of equity into direct conflict.

Practically, the question before the Court has resolved itself into a question of costs, because the Norwich Union Company, in consequence of the improvement, pending the suit, of the value of one of the securities on which the £3000 was advanced, have found that those other securities are sufficient to protect them in respect of the sum of £3000, and are therefore willing [22] to deliver up to the Plaintiff the securities on which the £2000 was advanced. At first sight, therefore, it appeared that it would be unnecessary to decide this question if it should appear, as it was contended, that this was a suit to redeem an incumbrance, and that, therefore, in any event, the costs of the suit must be paid by the Plaintiff.

But the answer to this was, that though this might be so up to the time of the payment of the money due under the Vice-Chancellor Wood's order, yet, that upon payment of that sum the Defendants ought to have delivered up the securities, unless they were entitled to retain possession of them, and that, therefore, from that period at least, it was merely a suit or proceedings by a mortgagor to recover from a mortgagee, who had been paid in full, the title-deeds and securities improperly retained.

As I concurred in that view of the nature of the suit, upon the assumption of the Plaintiff being right, it became necessary for me to determine the question raised in the suit, for the purpose of deciding how these subsequent costs should be borne. It is necessary, in order to arrive at the solution of this question, to consider whether the contract, express or implied, between these parties, governs the case, and if not, what, in the absence of contract, is the rule which must prevail. Before I proceed to consider the contract in this case, I think it desirable to examine how the matter would stand if it were not affected by any contract. In the absence of contract it is clear that, as against Mr. Croughton, the Defendants were entitled to tack their debts; Mr. Croughton, undoubtedly, could not have redeemed the securities, on the strength of which the £2000 was advanced by the Norwich Bank, without [23] also paying what was due to them in respect of the £3000; and it is settled by numerous authorities that, until the bank had been paid the whole that was due to them, they could not have been compelled by Mr. Croughton, or by any person claiming under him, to deliver up the securities relating to any portion of the debt secured, though it were by separate and distinct securities.

The question which then presents itself is this: If a third person become surety to the mortgagee for the payment by the mortgagor of one of these debts, will this, so far as he is concerned, affect this rule and deprive the mortgagee of the right, which he would otherwise have possessed, of tacking his debts together and making the property mortgaged available for both in the absence of express contract for it? It is clear that the mortgagee may contract with the mortgagor, or with his surety, that this right of separate redemption shall exist in either or both of them. In the absence of contract, I think that the fact that a third person has become surety for one of the debts does not deprive the mortgagee of his right to tack. If it did, it would, in most cases, enable the mortgagor to do in the name of his surety what he is not able to do in his own name. I am, therefore, of opinion that the surety, by offering to pay or by voluntarily paying to the creditor the debt for which he has become surety, could not redeem the particular property which was made the subject R. VI.—1*