cases of companies being wound up. It is a principle which appears to me a perfectly sound one. Some authorities have been cited to shew that there cannot be double proof against joint and separate estates. That is carrying the same principle still further, because, in that case, the proof is not twice against the same estate but against two estates, though, indeed, belonging to the same person, and some judges have, as to that application. of the principle, said that it should not be carried any further. But the simple principle that an insolvent estate, whether wound up in Chancery or Bankruptcy, ought not to pay two dividends on the same debt appears to me to be a perfectly sound one. For if it be not adopted, a creditor might, by inducing his debtor to contract with several persons, in respect of the same debt, obtain higher dividends than the other creditors, perhaps getting payment of his debt in full. This is, as I apprehend, what the law does not allow. The true principle of justice is, that there is to be only one dividend in respect of claims which are substantially the same debt, even though there may be separate contracts. Therefore, with great respect for the Vice Chancellor, I am, on the whole, of opinion that this proof should not be allowed. LORD JUSTICE JAMES.-I concur. Statute of Limitations Legacy In been five, was last heard of in 1845. The executrix, M. W., retained one-fifth of the legacy. She became lunatic in 1851, whereupon the fund was carried to an account entitled "the account of M. W. and the children of W. P.," and the income of the whole was applied for the benefit of the lunatic. To a petition presented in 1871 by the four surviving children for payment of the fifth share, which remained unpaid out of the fund, and for the payment of interest thereon out of another fund belonging absolutely to the lunatic, it was objected that the Statute of Limitations was a bar:—Held, that the Statute was no bar to the claim for the principal, but was a bar to the claim for more than six years' interest. By his will dated the 4th October, 1845, J. T. Pitt bequeathed to the children of his brother, W. Pitt, who should be living at his (the testator's) decease, the sum of 1,000l., to be divided between them equally, and directed it to be paid out of the property which he thereby bequeathed to his executrix for life. He gave a considerable amount of property to Martha Walker for life, and after her death to be divided equally between the children of W. Pitt who should be living at his (the testator's) death, and he appointed Martha Walker executrix. He died on the 24th of January, 1847. There were five children of W. Pitt, of whom J. T. Pitt, the younger, was one. He had for many years lived in Canada, and from 1834 to 1845 had travelled about the United States, and during that time kept up an occasional correspondence with his family, writing to some member about twice in three years, or not quite so often. One of his sisters received the last letter from him which reached any member of his family. It was dated the 17th of February, 1845, and was sent from New York. After this terest on Legacy-Class-Presumption of nothing was heard of him, notwithstanding Death. A testator gave a fund to his executrix for her life, subject to the immediate payment thereout of a legacy to be divided amongst the children of W. P., to whom he also gave the fund after the death of the executrix. He died in 1847. One of W. P.'s children, of whom there had that advertisements were inserted in several American papers, and enquiries made. M. Walker, soon after the testator's death, paid 200l. to each of the other four children of W. Pitt. In 1851, she became lnnatic, and the funds bequeathed to her for life, which were subject to the payment of the remaining 2001., were trans ferred into Court to an account entitled, "The account of Martha Walker and the children of W. Pitt," and the dividends were ordered to be applied in the maintenance of the lunatic. This petition was presented by three of the other four children of W. Pitt, and the executors of the fourth, who had recently died, and by the administrator of J. T. Pitt, the younger, for the purpose of obtaining payment of the 2007. and interest. It prayed that the 2001. might be paid out of the settled fund, and the interest out of a fund which belonged to M. Walker absolutely. Mr. Fry and Mr. Bardswell, for the petitioners. Mr. Dickinson and Mr. Methold, instructed by the solicitor to the suitors' fund. and Mr. Millar, for the next of kin, contra. The petitioners cannot claim at all because there is no evidence whether or not J. T. Pitt survived the testator, and the onus of proving their title lies on the petitioners. They referred to In re Lewes' Trusts, 40 Law J. Rep. (N.S.) Chanc. 602; s. c. Law Rep. 6 Chanc. 356; Wing v. Angrave, 8 H. L. Cas. 183; s. c. 30 Law J. Rep. (N.s) Chanc. 65. Besides, the claim to have the legacies and interest raised now is barred by the Statute of Limitations, since the lunatic has enjoyed the fund as part of that in which she has a beneficial life interest. JAMES, L.J.-I think that the unpaid fifth share of the legacy of 1,000l. ought to be divided among such of the four children of W. Pitt, who are known to have survived the testator, as are now living, and the representative of the one of them who is now dead. These four children were, without doubt, included in the class of persons to whom the testator gave the legacy. There is a doubt whether J. T. Pitt, the fifth child, was not also included, but since no evidence has been produced, and apparently none can be obtained, to prove that he was living at the testator's death, it follows that he must be considered as not included in the class, because it lies on those who claim under him to prove their title. As to the defence rested on the Statute of Limitations, the answer as regards the principal is, I think, that the Court, acting on behalf of the lunatic, has invested the fund in a manner which, by the title of the account, shews that the children of W. Pitt had an interest in it. But that answer does not apply to the income, and as regards this the Statute does apply so as to prevent the petitioners claiming more than six years' interest. The costs of the petitioners will be borne by themselves, those of the respondents by the residue of the fund upon which the legacy was charged. The arrears of interest must be paid out of the fund belonging to the lunatic absolutely. MELLISH, L.J.-Iam of the same opinion. Solicitors-Messrs. Burton, Yeates, & Hart, agents for Messrs. Tyndall & Co., Birmingham, for petitioners; Mr. Johnson, Mr. W. H. Tatham, & Mr. Winterbotham, for other parties interested. Partition Act, 1868 (31 & 32 Vict. c. 40) -Bill for Sale of Property-Decree for Partition or Sale. The Court will not make a decree for sale of property under the Partition Act, 1868, unless the bill prays for a partition as well as a sale. Teall v. Watts (40 Law J. Rep. (N.S.) Chanc. 176; s. c. Law Rep. 11 Eq. Ca. 213), followed. Aston v. Meredith (40 Law J. Rep. (N.S.) Chanc. 241; s. c. Law Rep. 11 Eq. Ca. 601), dissented from. George Holland died on the 28th of October, 1838, having by his will, dated the 19th of October in the same year, devised and bequeathed all his real and personal estate to his widow for life, and after her death for his surviving children, and the issue of such of them as should be then dead, and appointed trustees. The testator left his widow and three children, namely, George Robinson Holland, Mary Jane Holland, and Henry Holland. Henry Holland died in 1867, leav ing one child, Harry Uravia Holland, an infant. The widow married again, and died on the 12th of April, 1870. The only real estate of which the testator died seised, consisted of an undivided one-fifth part or share of certain freeholds in Bull Street, Birmingham. On the 20th of December, 1870, George Robinson Holland and his sister agreed to sell the share in the freeholds to William Southwell, upon very advantageous terms. The agreement provided that the share of the infant in the proceeds of the sale should be invested in the names of the trustees. In March, 1871, a suit of Holland v. Holland (1871, H. No. 67) was instituted on behalf of the infant, for the administration of the testator's estate; and on the 11th of March, 1871, the usual administration decree was pronounced. It contained no direction for the sale of the real estate, and an application made in that suit for a sale was refused, on the ground of want of jurisdiction therein to sell the infant's estate. Mary Jane Holland, in 1871, sold all her interest in the freeholds to her brother, and he now filed the bill in this suit against the infant, praying a decree that the undivided one-fifth part or share of the testator's premises in Bull Street, Birmingham, might be sold; that an enquiry might be directed as to whether it was for the benefit of the infant that the sale of the premises contemplated by the agreement of the 20th of December, 1870, should be carried into effect, and if so, that the agreement might be confirmed by the Court; and for the usual accounts, enquiries, and directions. Mr. Crossley, for the plaintiff, said it was for the benefit of all parties that the agreement should be confirmed by the Court, and the sale carried out. Mr. Gazdar, for the defendant, suggested that the bill should have prayed for a partition, or in the alternative for a sale, and not for a sale only Dart's V. & P. 1075 (ed. 1871). Mr. Crossley said there had been conflicting decisions of the Court. in Mr. Freeling (amicus curia) said that Teall v. Watts (ubi supra), the Master of the Rolls had held that the bill ought to pray for partition as well as sale. Mr. Crossley said that in Aston v. Meredith (ubi supra), Bacon, V.C., had held that a sale might be decreed under the Act, although the bill contained no prayer for partition. WICKENS, V.C., made a decree as prayed by the bill, but directed the bill to be amended by the addition of a prayer for a partition, as well as a sale. Solicitors-Messrs. Lambert, Burgin & Petch, for plaintiff; Messrs. Vizard, Crowder & Co., for defendants. Land Registry-Indefeasible Title Purchase from first Mortgagee-Form of Order. The former order made in this case (40 Law J. Rep. (N.S.) Chanc. 616) varied. Sir William Russell being registered as owner with an indefeasible title under 25 & 26 Vict. c. 53, created several mortgages which were duly registered. Mr.. Richardson having purchased from the first mortgagee under his power of sale. obtained in August last an order, of which the following are the minutes "Order that the applicant, Thomas Richardson, be entered on the register of title as the owner in fee with an indefeasible title, in the same manner as if he had purchased from the former registered owner without his (the former owner) having created any incumbrances, subsequent to the mortgage to the mortgagee selling to the said Thomas Richardson; but his Lordship doth not direct any alteration to be made in the record of incumbrances." The Registrar found a difficulty in obeying this order, considering that the effect of the last clause, (beginning "but his Lordship,") was to compel him to set forth Will-Forfeiture-Voluntary Alienation -Bankruptcy Act, 1869-Liquidation by Arrangement. Liquidation by arrangement on a petition by the debtor was held to work a forfeiture under a proviso guarding against voluntary alienation. Lady Amherst, by her will dated 1827, bequeathed 20,000l. to trustees: as to 10,000l. upon trust, to pay the income to Plantagenet Cary for life, with remainder over, and as to the remaining 10,000l. upon trust, to pay the income to Byron Charles Ferdinand Plantagenet Cary (in the will called Ferdinand Byron Cary), for life, with remainder over; and her will contained the following proviso: "Provided and my will is, that in case the said Plantagenet Cary and Ferdinand Byron Cary, or either of them, shall at any time during their respective lives assign over, assure, mortgage, or in any manner encumber, or by any instrument in writing, parol agreement, or otherwise howsoever, part from the dividends and annual produce of the said trust moneys, stocks, funds, and securities hereby declared to be in trust for them, or any part thereof, until the same are actually due, upon any pretence or in any manner whatsoever, then and in such case the right and interest of and in the dividends and annual produce of the said trust moneys, stocks, funds, and securities of such of them, the said Plantagenet Cary and Ferdinand Byron Cary, so doing or permitting, or suffering to be done, any such act or thing as aforesaid, shall cease and determine, to all intents and purposes, in such and the same manner, as if the said Plantagenet Cary and Ferdinand Byron Cary were actually dead; and the same shall go and be applied in such and the same manner as the same would be applicable under the aforesaid trusts, in case the said Plantagenet Cary and Ferdinand Byron Cary respectively so incurring such forfeiture were actually dead." Lady Amherst died in 1830. Byron C. F. P. Cary filed a petition for liquidation by arrangement under the provisions of the Bankruptcy Act, 1869; and on the 9th of December, 1870, his creditors passed a resolution that his affairs should be liquidated by arrangement, and a trustee, without a committee of inspection, was at the same time appointed. A doubt arose as to whether the petition for arrangement operated as a forfeiture under the proviso above set out, and the trustees paid the money representing the share in which Byron C. F. P. Cary had a life interest into Court. This was a petition by persons entitled on the determination of his life estate for the payment out of the funds to them. Mr. De Gex and Mr. Warmington, for the petitioners, relied on Shee v. Hale, 13 Ves. 409, in which case it had been held that a debtor by taking the benefit of the Insolvent Debtors' Act then in force had suffered a forfeiture. Mr. W. Pearson, for the trustee under the liquidation, contended that liquidation by arrangement was to be considered in the same light as bankruptcy, and did not work a forfeiture Lear v. Leggett, 7 Law J. Rep. (N.S.) Chanc. 127; s. c. 2 Sim. 479; s. c. 1 Russ. & M. 690; Pym v. Lockyer, 11 Law J. Rep. (N.S.) Chanc. 8; s. c. 12 Sim. 394; Rochford v. Hackman, 21 Law J. Rep. (N.S.) Chanc. 511; s. c. 9 Hare, 475; Graham v. Lee, 23 Beav. 388; s. c. 26 Law J. Rep. (N.S.) Chanc. 395. Mr. W. D. Gardiner appeared for the trustees of the will. BACON, V.C., said — I think it quite clear that a forfeiture has taken place. It has certainly been held that a petition in bankruptcy by creditors was not such a voluntary act on the part of the debtor as to work a forfeiture against the debtor in such a case as this; but it has been just as clearly decided under the Insolvent Debtors Act that a person taking the benefit of that Act made a voluntary alienation; and this case is not to be distinguished in principle. I must hold, therefore, that the petitioners are entitled. Solicitors-Mr. J. Yarde, agent for Messrs. Whidborne & Tozer, Teignmouth, for petitioners; Messrs. Terrell & Chamberlain, agents for Messrs. Terrell & Petherick, Exeter; and Messrs. Frere, Cholmeley & Co., for other parties interested. Will-Construction-Mortgage-Exoneration of devised Estates. A testator devised part of a freehold estate (the whole of which was subject to a mortgage), upon trust, to pay his widow an annuity, and out of the surplus income to apply so much as the trustees thought fit for the benefit of his children, and to apply the surplus in paying off the principal and interest of the mortgage debt, and after the death of the wife, and when the whole of the mortgage should be paid off, upon trust for his children. The rest of the property, subject to the mortgage, descended to the heir-Held, in a suit by the mortgagee in which a sale had been decreed that, against a purchaser from the heir, the descended estate must bear the burden of the mortgage in exoneration of the devised estates. Thomas Carter Clout, the testator in this cause, was, at the time of his death, possessed of certain freehold property at Tunbridge Wells, the whole of which. was subject to a mortgage for 1,600. The property was sold and put up in four lots, numbered from 1 to 4 inclusive. Lot 1 consisted of two cottages at Coxheath. Lot 2, of five cottages, called Carter's Cottages. Lot 3, of six cottages, being Nos. 1 to 6, Carter's Terrace; and lot 4 consisted of other cottages in Carter's Terrace, built after the date of the testator's will. By his will dated April, 1835, he devised lots 1, 2, and 3 to trustees, upon trust to pay the rent of one of the cottages to his wife, Elizabeth, during widowhood, and out of the rents of the remainder to pay her 61. a year during widowhood, and upon trust to pay so much of the surplus as they should think proper for the support, education and advancement of the testator's three children, Thomas C. Clout, Mary Ann C. Clout, and Jane C. Clout, and subject thereto to pay such surplus from time to time towards paying off the principal and interest due on any mortgages existing on his said messuages, if his personal estate should be insufficient, and in the meantime to accumulate the same until an opportunity should occur to discharge all or any portion of the mortgages, and after his wife's death or second marriage, and the whole of the mortgages should be paid off, and subject thereto as to lots 1 and 2, to the use of his son, Thomas C. Clout, if he should have attained twenty-one, and as to one half of lot 3 for the benefit of his daughter, Mary Ann C. Clout, for her separate use and her children; and as to the other half, for the benefit of his other daughter, Jane C. Clout and her children, with remainders over in default of issue. The testator died in 1844; his widow died in 1848. His daughters married James Booker and Thomas Russell respectively, and each had issue. Lot 4 did not pass by the testator's will, and descended to his son, Thomas C. Clout, subject to the mortgages. The son encumbered his interest both under the will and as heir; he also executed a deed for the benefit of his creditors, by which he conveyed the equity of redemption in the three lots. The mortgage for 1,6001., which ex |