of the word, that is, of a person accidentally knowing the names of the proprietors, but wholly unconnected with the newspaper. I merely decide that by force of this enactment a person complaining of a libel in a newspaper may file a bill against the printer and publisher to ascertain the names of the proprietors, for the purpose of bringing his action against the proprietors alone; and I do so because any other conclusion seems to me inconsistent with the spirit and intention, as well as with the words of the statute. I therefore overrule the demurrer.

Administration Suit-Infant Ward of Court-Marriage-Contempt-Settlement.

The Court, on a petition, presented in an administration suit by a ward of Court and her husband, who had married without consent while the wife was a minor and in ignorance that she was a ward of Court, settled her property on her for life, with remainder to her children; and with a power for the wife to appoint the property by will to her husband for his life.

This suit was instituted for the administration of the estates of William Thompson. A petition was presented by William Nicholas Patterson and Sarah Elizabeth Wood, his wife, praying that the costs as between solicitor and client of the petitioners, and all other necessary parties of and incident to that application, might be raised and paid by a sale of a sufficient part of a sum of 6871. 78. 10d. bank 31. per cent. annuities; that the sum of 201. 168. 8d., further part of the said bank annuities, might be sold, and the proceeds paid to the petitioner, Sarah Elizabeth Wood Patterson, upon her separate receipt; and that a proper settlement of

the residue of such bank annuities might be made upon the petitioners respectively, and the issue of their marriage.

The facts of the case were shortly these

William Thompson, by his will dated the 20th of May, 1864, devised and bequeathed all his real and personal estate to the plaintiff, John Wilkinson, and the defendant, Charles Joughin, upon trust, to permit his wife Adelaide to receive the income thereof for her life, and on her death to sell, convert and invest the same for the benefit of his children as therein mentioned; but if no child of his should attain the age of twenty-one years or be married, then he bequeathed the residue of his estate in trust for his step-daughter the petitioner, Sarah Elizabeth Wood Patterson, by the name of Sarah Ward, for her absolute use; but in case she should die without leaving issue, upon trust to pay the same moneys, or the stocks, funds, and securities wherein the same should be invested to the plaintiff and Anne Hammond in equal shares; and the testator appointed the plaintiff and Charles Joughin his executors.

The testator died in July, 1864, and Charles Joughin proved his will. The testator left no child or issue.

By a decretal order made on the 19th of April, 1866, it was declared that the testator's (alleged) wife Adelaide took no interest under his will

Wilkinson v. Joughin, 85 Law J. Rep. (N.S.) Chanc. 684; and that the devise and bequest to Sarah Ward was valid.

The real estate of the testator was sold by order of the Court for 1,4751. In June, 1870, a sum of 6197. 18s. Od. (the balance of the 1,4751., after deducting certain payments thereout) was invested in a sum of 6667. 11s. 2d. bank 31. per cent. annuities in the name of the Accountant-General, and carried to an account entitled "The account of the infant defendant, Sarah Ward, and her issue, and the parties entitled in default of such, free of duty:' and the interest to accrue due on the annuities and the accumulations, were ordered to be invested in like manner. They had since been invested in a sum of 201. 16s. 8d. like annuities, and there was

now, therefore, altogether, the sum of 6871. 78. 10d. bank 31. per cent, annuities standing to the account.

On the 24th of November, 1867, the petitioner, William Nicholas Patterson, married Sarah Ward by the name of Sarah Massey Wood Ward, her real name being Sarah Elizabeth Wood Ward.

There was issue of the marriage one child, viz., William Thompson Patterson, born on the 12th of September, 1871.

The petitioner, Sarah Elizabeth Wood Patterson, attained her age of twenty-one years on the 6th of June, 1871.

No settlement or agreement for one was made before, upon or since the marriage. The petitioners now presented the petition, praying as above stated.

The plaintiff died in 1870, and there was no legal personal representative of his estate. The defendant, Charles Joughin, did not disapprove of the marriage.

The above facts, including the identity of the petitioner, Sarah Elizabeth Wood Ward, with Sarah Ward and Sarah Massey Wood Ward, were proved.

Mrs. Patterson deposed that when she became engaged to her husband, she knew she was entitled to an interest under the testator's will; but she had no knowledge whatever that she was a ward of Court; nor was she aware of that fact until quite recently (since she attained. her majority). She had no knowledge. whatever that it was necessary to obtain the sanction of the Court to her marriage; and if she had known that it was necessary she should not have married without its sanction.

Mr. Patterson deposed that he was quite ignorant, previously to his marriage, and until quite recently (since his wife attained her age of twenty-one years), that she was a ward of Court, or entitled to any property whatever, or that it was necessary to obtain the sanction of the Court to her marriage; and that if he had known it was necessary to obtain that sanction, he should not have married without it.

Both Mr. and Mrs. Patterson said they very much regretted having unconsci ously committed what they were told was a contempt of the Court, by marrying without its consent.

Practice-Trustee Act, 1850, s. 32Trustee resident abroad-Appointment of new Trustee in Place of-Vesting OrderJurisdiction.

A trustee permanently residing abroad, does not thereby become "incapable to act," so as to enable the persons to whom the power of appointing new trustees in such an event has been given, to appoint a trustee in his place; but the Court has jurisdiction, under the 32nd section of the Trustee Act, 1850, to appoint a new trustee in such a case without the consent of or service of the petition on the trustee so resident abroad, and will exercise that jurisdiction and also make the usual vesting order if it appears to the Court " expedient" so

to do.

In re Blanchard (3 De Gex, F. & J. 131; s. c. 30 Law J. Rep. (N.S.) Chanc. 516) distinguished.

This was a petition referred to the Court of Appeal by Vice Chancellor Wickens, before whom it had been in the first instance presented. His Honour was

pressed by the conflicting decisions on the point which arose in the present case in the following way.

The petition was entitled in the above mentioned matter, and also in the matter of the trusts of the will of Henry D'Esterre Hemsworth, so far as the same related to a sum of 7,000l. appropriated to his daughter, Jane Maria Bignold, and in the matter of the Trustee Acts, 1850 and 1852.

It shewed that under the marriage settlement of Mr. and Mrs. Bignold and the will of the lady's father, certain trust funds had become vested in the hands of their trustees, one of whom on the 2nd of July, 1868, left England for Tahiti, with the intention which he had ever since adhered to of residing there permanently as a merchant: in fact he was permanently resident abroad. Under these circumstances the donces of the power to appoint new trustees under the settlement and will respectively, had executed deeds appointing a new trustee of them respectively in place of the trustee out of the jurisdiction. And the object of the petition was to obtain vesting orders of the property dispensing with service on the trustee out of the jurisdiction.

The petition was presented by all the parties interested under the settlement and will, by the two trustees within the jurisdiction and the new trustee, and there were no respondents.

The power of appointing new trustees in the will only extended to the cases of trustees"dying, disclaiming, or desiring. to be discharged, or refusing, declining or becoming incapable to act." The question therefore was, whether the fact of the trustee's permanent residence out of the jurisdiction in the present case rendered him "incapable to act" within the meaning of the power.

Mr. Horton Smith, for the petitioners, submitted that it did, and that

Mesnard v. Welford, 1 Sm. & G.

426; s. c. nom. Mesnard v. Welford, 22 Law J. Rep. (N.s.) Chanc. 1053

should be followed rather than

Withington v. Withington, 16 Sim. 104;

Re Watts' Settlement, 9 Hare 106;

After G. had been adjudged a bankrupt by a Scotch sequestration, and before he obtained his discharge, his wife, who had taken part in procuring the sequestration, made her will and thereby gave an annuity to him for life, and declared, that if he should become bankrupt, or should assign, &c., the annuity should cease; and she also empowered the trustees of her will in their discretion at any time to refuse or discontinue payment of the annuity to her husband. After the death of the testatrix, and before the first payment of the annuity became due, G. obtained a discharge which did not devest the property from the trustee in the sequestration: Held, reversing the decision of one of the Vice Chancellors, that the annuity was forfeited.

:

Mrs. Graham, by her will, dated the 16th of February, 1863, in exercise of a power of appointment vested in her over the reversionary interest in certain trust property, subject to the life estate therein of her mother, Mrs. Payne, appointed the same to trustees upon trust, to pay certain legacies, and proceeded as follows

"And upon further trust that my said trustees shall out of the income of the said trust premises, or if that shall be insufficient, then out of the principal thereof, pay to my husband an annuity of 1001. during his life (but subject to the provisoes with respect to the said annuity hereinafter contained), the said annuity to be paid by equal half-yearly payments, the first of such payments to be made at the expiration of six calendar months after the decease of the survivor of me and my said mother.

"Provided always, and I hereby declare that if my said husband shall become bankrupt, or shall assign, charge or encumber, or attempt or affect to assign,

charge or encumber the said annuity of 1007., or do or suffer any act whereby the same or any part thereof, would, if belonging absolutely to him, become vested in any other person or persons, then and in such case the said annuity shall not be payable, or shall cease to be payable as the case may require in the same manner as if my husband were dead.

"Provided also, and I hereby further declare that it shall be lawful for my said trustees or trustee, if they or he shall, in their or his absolute discretion, think fit and without assigning any reason for so doing at any time or times to refuse or discontinue the payment to my said husband of the said annuity of 1001. or any part thereof during the whole or any portion of his life. And in such case the said annuity or such payment or payments thereof as my said trustees or trustee shall refuse to make to my said husband as aforesaid, shall sink into the income of the said trust premises for the benefit of the person or persons for the time being entitled to such income; it being my wish and intention that the payment of the said annuity to my said husband, shall be according to the discretion of my said trustees or trustee in all respects."

And subject to the annuity, she appointed the trust property in favour of her sister Mrs. Trappes and her children. The annuity was afterwards increased by a codicil to 150l.

The testatrix died in June, 1864.

Mrs. Payne, the tenant for life, died on the 4th of April, 1868, and the first payment of the annuity became due on the 4th of October following.

On the 7th of May, 1861, nearly two years before the date of the will, Henry Graham, the husband, was upon his own petition adjudged a bankrupt under a Scotch sequestration, his wife, the testatrix, taking part in the proceedings for obtaining the sequestration, and on the 29th of August, 1868, after the death of Mrs. Payne, but before the first payment of the annuity became due, he obtained a discharge from all his debts and liabilities at the date of his sequestration, but without any consent of creditors or composition under the 146th or 147th sections

of the Bankruptcy (Scotland) Act, 1856. The trustee in the sequestration was discharged in February, 1869. The bankrupt had never disclosed to his creditors the interest in the annuity given him by his wife's will.

The suit was instituted for administration, and came originally before James, V.C., the question then turning upon the effect of an English bankruptcy which had been annulled shortly before the first pay. ment became due. See

Trappes v. Meredith, 39 Law J. Rep. (N.S.) Chanc. 366.

The bill was afterwards amended by stating the facts relating to the Scotch sequestration, and the matter again came before James, V.C., who held, that having regard to the intention of the testatrix, the Scotch sequestration was not a bankruptcy within the forfeiture clause of the will; and 2ndly, that the trustees of the will must exercise their discretion with regard to each payment of the annuity whether they would withhold it or pay it to the trustee in the sequestration

Trappes v. Meredith (No. 2), 39 Law 7. Rep. (N.S.) Chanc. 727. The persons entitled in remainder appealed. The appeal came on to be heard before the Lord Chancellor on the 31st of January, the 8th of February, and the 1st of March, 1871, but after the argu ment had proceeded for some time, was directed to stand over in order that the opinion of the Scotch judges might be taken upon the effect of the sequestration and discharge in the events that had happened.

By the interlocutor of the Scotch Court, dated 3rd of November, 1871, the Lords of the first division certified as follows:

1. By the law of Scotland, a right or estate in expectancy or spes successionis, may be sold and assigned so as to give the purchaser a good title in a question with the seller to the right, estate or succession when it comes to be vested in the seller. But such right or estate in expectancy or spes successionis is not attachable by the diligence of creditors of the person in expectancy, or entitled to succeed, and would not be carried to the trustee in his sequestration if he should be discharged before such right, estate or

succession was vested in him. Therefore, assuming, first, that the annuity was settled and regulated entirely by the first clause of Mrs. Graham's will, and that the 2nd and 3rd clauses were not contained in the said will, and second, that the right to the annuity vested in Mr. Graham before the date of his discharge under the sequestration, so as if he had been solvent to be attachable by his creditors, the annuity would fall under the sequestration and be carried to the trustee, and would be now still claimed under the sequestration for the benefit of Mr. Graham's creditors.

2. The 3rd clause of the will, taken by itself and apart from the 2nd clause, would have no effect in preventing the annuity from falling under the sequestration, so long as the trustees under the will do not exercise the powers thereby conferred on them to refuse or discontinue payment of the annuity, but the trustee and creditors under the sequestration can take this right and interest of the bankrupt only tantum et tale, as it stood vested in the bankrupt and subject to all the conditions and qualities legally attaching

to it.

3. The omission of Mr. Graham to give notice to the trustee in the sequestration of the bequest of the annuity having been made, would have no effect on the discharge obtained by Mr. Graham, because the terms of the will, and particularly of the 2nd clause, taken either alone or in connection with the 3rd clause, prevented the annuity from falling under the sequestration. If the annuity had vested in the bankrupt so as to be carried to the trustee in the sequestration, the omission to notify the fact to the trustee would, under section 103 of the Bankruptcy (Scotland) Act, 1856, have had the effect of annulling the discharge as one of the "benefits of the Act," which by that omission he forfeited. But in the circumstances of this case, and looking especially to the conditions of the will respecting the annuity, it cannot be held to be an estate acquired by the bankrupt, or descending or reverting to him within the meaning of section 103, because, supposing the annuity to have been otherwise a right of such a nature as to vest in him before the