without due publication of banns," the marriage shall be null and void to all intents and purposes."

Now, evidence that this marriage was "knowingly and wilfully" celebrated by both parties without due publication of banns, beyond the production of the copy of the register on Mr. Kensit's part, there is none. The plaintiff, Mr. Gompertz, does indeed, bring evidence on the subject, for he says, "I deny that I left out the other names of myself or wife with any fraudulent intent to avoid the discovery of the said marriage, but I did so for brevity's sake only."

These, I believe, are all the essential facts. From them Mr. Kensit takes it upon himself to shew that fraud was committed by both parties. Mr. Amphlett did not shrink from that position at all. Mr. Kensit undertakes to prove that the undue publication was knowingly and wilfully caused by both parties. Now evidence as I have said, on Mr. Kensit's part, there is none beyond what is contained in his answer. But he has read, indeed he was obliged to read, the evidence of Mr. Gompertz himself, who says, "The banns were published by my sole direction and instructions, and when I gave such instructions for the publication in the names by which we were afterwards married, I did so, not considering, or either thinking or believing, that I was doing anything wrong or acting contrary to law."

A charge of fraud is made against Mr. Gompertz, and when this passage is produced, to meet it the Court is asked to assume that what he says is not true. He says he did what he did for brevity's sake. There is no evidence to shew that the names were not published in full; but if they were published only as Mr. Gompertz gave them, why is the Court to assume that he gave them wilfully and knowingly, with a view to concealment ? Is it so rare a thing in the affairs of the world to find a man signing or giving his address, with the omission of one or more of his names? Giving the utmost effect to the Act of Parliament, I cannot say that the offence against which the Statute was directed has been committed.

Then I am asked to presume fraud against the wife. Both parties must be

shewn to have knowingly and wilfully concurred in the undue publication. But it appears from Mrs. Gompertz's evidence, that she knew nothing about it. Against that statement, I am asked to infer that she did know, because she signed the register with one name only, which was not the way in which she usually signed her name. That circumstance cannot now be satisfactorily explained, as she is no longer living. Then, upon what ground can I presume fraud against this lady? I have no safe ground for so doing. I cannot say that because all the true names were not used, the omission was knowingly and wilfully made by both parties.

I am satisfied that there is nothing in the authorities to contravene this conclusion. The case which was most strongly urged upon me, Tongue v. Tongue (ubi supra), bears no sort of analogy to the present. In that case, the evidence of the sextoness shewed that the mau (who was a minor) was just as much a party to the fraud as the woman. The woman was shewn to have contemplated the fraud, and the omission by the young man of the name of Croxall, by which he was generally known, was of the most vital importance, as shewing that he was cognisant of the fraud. The case of Tongue v. Tongue (ubi supra) could not have been decided otherwise upon the facts there proved, the man being as much a party to the fraud as the woman, who confessed it. No observation was made by the defendants' counsel on the case of The King v. The Inhabitants of Wroxton (ubi supra), where the facts were much stronger against the validity of the marriage than they are here. There the husband knew the name of the wife, and said he would see to the proper publication of the banns. She took no step, and he procured the banns to be published in a wholly false name. In the publication of the banns the woman was described as Agnes, her real name being Susannah. During the marriage ceremony the clergyman used the name of Agnes, but she was told by the husband to hold her tongue. So that both parties had knowledge of the misdescription. But the marriage, was supported on the ground that there was no proof of the knowledge by both parties of

the undue publication of banns. Is there a particle of evidened in this case to shew that the wife had any knowledge whatever that there had been an undue publication of banns? I think there is no reasonable ground upon which Mr. Gompertz's request was refused by Mr. Kensit, and Mr. Gompertz is entitled to the relief he asks.

As to the costs, considering the answer which Mr. Kensit has put in, I should have been much inclined to make him pay the costs of the suit, but as there happens to be a fund, I think the ends of justice will be sufficiently met if I allow the plaintiff's costs to come out of the fund, giving no costs to Mr. Kensit. With respect to the other defendant, Mr. Murphy, I wholly disapprove the course he has adopted. Instead of joining the plaintiff, he has chosen to put in a long answer, so as to have incurred expense. I cannot give Mr. Murphy any costs. There will be a decree for the execution of the trusts of the will; an inquiry into debts; with a declaration that the plaintiff and the defendant Murphy are entitled, as trustees of Mrs. Spring's settlement, to the waterworks shares, and the income of them since the death of the tenant for life; the amount to be verified by affidavit, and a direction that the same subject as above, be transferred and paid to the plaintiff and Murphy as trustees.

of certain claims against the Contract Company, which was in course of winding up. The liquidator had not thought the proposed compromises expedient, and it was now asked that they might be ordered to be carried out in spite of his opposition and that of some of the creditors.

The claims of which the petition asked the Court to sanction a compromise were first, that of Mr. Hankey; second, that of other creditors, who appeared separately to support the petition.

The company's assets were insufficient to meet the liabilities.

It appeared, however, from Mr. Hankey's cross-examination that he (having formerly been a director of the company) had bought up and was now owner of not only the claim which he put forward as his own on the petition, but also of the claims of certain other claimants who appeared as nominal copetitioners and supporters, and he had bought enough debts to give him a statutory majority of creditors under section 2 of the Companies Act of 1870.

Sir R. Palmer and Mr. Kekewich, for the petitioner,

The Solicitor-General and Mr. A. G. Marten, for co-petitioners, and

Mr. Lindley, Mr. F. Waller, and Mr. H. M. Jackson, for creditors, in support, relied on sections 159 and 160 of the Companies Act of 1862, and section 2 of the Companies Act of 1870, and defended the conduct of Mr. Hankey on the ground that having been a director he was endeavouring to close the winding-up and get all claims settled.

Sir John Karslake and Mr. Whitehorne, for the liquidator.

Mr. Higgins, Mr. W. Pearson, and Mr. Macnaghten, for other creditors, and Mr. Ince, for a contributory, opposed on the ground that Mr. Hankey had bought these claims, great part of which were disputed, for much less than the sums for which they were proposed by the petition to be compromised, and that the arrangement would not be beneficial to the company, and not being proposed nor even supported by the liquidator, could not be sanctioned by the Court under the Companies Acts of 1862 and 1870

Re The Northumberland and Durham

3 D

District Banking Company, 1 Dr. & S. 273;

Re The East of England Banking Company, Pearson's case, 20 W. R. 394.

WICKENS, V.C., said he should follow The East of England Banking Company, Pearson's case (ubi supra) in which the Lords Justices decided that the Court has no jurisdiction to compel a liquidator to accept a compromise not originated by him, especially as in this case the petitioner's evidence had not disclosed the fact that these were really all claims of his own, which he asked to have compromised. Even if he had jurisdiction to make an order which he thought he had not, he ought not to do so in a case like the present. The petition must be dismissed with costs.

Solicitors Mr. H. Handson, for petitioner; Messrs. W. Tatham & Son; Messrs. Ashurst, Morris & Co.; Messrs. Stevens, Wilkinson & Harries; Messrs. Mackenzie & Trinder; Messrs. Tilleard, Godden & Holme; Messrs. Lewis, Munns & Longden; Messrs. Barnes & Bernard; and Messrs. Abrahams & Roffey, for other parties interested.

A testator bequeathed his residuary personal estate to trustees upon trust for his two granddaughters in equal shares at twenty-one or marriage, and directed that in case they or either of them should marry under twenty-one, their shares should be settled upon them and their children in the usual form. Both granddaughters married under twenty-one, one in 1867, the other in 1870, after the passing of the Apportion ment Act of that year :-Held, that in both cases the income of the respective trust funds was apportionable down to the date of the respective marriages.

St. Aubyn v. St. Aubyn, 1 Dr. & S. 611, followed.

The same testator devised his real estate to the trustees upon trust for one of his said granddaughters, and directed that in the event of her marrying under twenty-one (which event happened), then they should assure the same by deed to her for her life to her separate use, without power of anticipation, with remainder to her children as tenants in common in tail with remainders over, with power to the trustees to secure a life interest to the husband after the death of the granddaughter either with or without impeachment for waste:-Held, that the life estate of the granddaughter must be subject to impeachment for waste.

SPECIAL CASE.

Daniel Coggs Webb, by his will dated the 23rd of February, 1859, bequeathed the residue of his personal estate to trustees in trust for his two grandchildren, Isabel Webb and Laura Sarah Webb, in equal shares as tenants in common, and the testator directed that the said respective shares should be vested in his said two grandchildren respectively on their respectively attaining the age of twentyone years, or upon their respective marriages, which ever should first happen, and he further directed that in case his said two grandchildren, or either of them, should marry under the age of twenty-one years, then the trustees should, by all proper and necessary deeds, settle and assure the moieties or moiety of both on such one of his granddaughters as should marry as aforesaid, upon trust for them for their separate use for their respective lives, without power of anticipation, with remainder to their children who should attain twenty-one, with remainders over in the usual form. The testator likewise devised all his real estate unto and to the use of his trustees and their heirs upon trust for his said granddaughter Laura Sarah Webb, her heirs and assigns, whenever and so soon as she should attain the age of twenty-one years, or marry under that age, whichever event should first happen, and he directed that in case the said Laura Sarah Webb should marry under the age of twenty-one years, then his trustees should by all proper and

necessary deeds settle and assure the said real estates "upon the said Laura Sarah Webb for her life, independently of any husband whom she may marry, and of his debts, control, interference and engagements, and with a restraint upon anticipation, with remainder to all and every the child and children of the said Laura Sarah Webb, as tenants in common in tail, with cross-remainders between them in tail, and in default of such issue, upon the said Isabel Webb, for her life, with remainder for her children in like manner in all respects as hereinbefore directed with respect to the said Laura Sarah Webb and her children." The

testator further authorised his trustees to secure in such last mentioned settlement a life interest to any husband of either of his said granddaughters, to commence immediately after her decease, and to be either with or without impeachment of waste.

The testator died on the 16th of November, 1860.

Isabel Webb, being at the time under twenty-one years of age, married Edward Henry Clive, on the 9th of January, 1867. There was one child of the marriage, Sybil Mary Clive.

By an indenture dated the 16th of January, 1867, Mrs. Clive's share of her grandfather's personal estate was settled in accordance with the trusts of the will.

Laura Sarah Webb, being also at the time under the age of twenty-one years, married Sir Algernon William Peyton, on the 24th of November, 1870.

By an indenture dated the 25th of November, 1870, Lady Peyton's share in her grandfather's personal estate was settled in accordance with the trusts of the will, and by another indenture of the same date, the real estate devised by the testator in favour of Lady Peyton was also settled, and was conveyed to trustees to the use of the trustees during the life of Lady Peyton, without impeachment of waste, upon trust to permit her to receive the rents and profits of the same premises for her separate use, without power of anticipation, with remainders over, in accordance with the trusts of the testator's will.

The residuary personal estate of the

testator had been invested and was held by the trustees of the will on various securities consisting of (besides money in the funds) Canadian bonds, railway, dock and gas company shares, railway debentures and preference stock, and Indian five per cent. stock.

Under these circumstances, the question arose whether such income of the trust funds settled on the marriages of Mrs. Clive and Lady Peyton, as became first payable after their respective marriages, or any, and if any, what parts thereof, ought to have been treated as income, and as payable to Mrs. Clive and Lady Peyton respectively, or whether the same or any, and if any, what parts thereof ought to have been treated as capital.

The further question also arose whether the estate for life in favour of Lady Peyton, in the real estate, was or not rightly limited without impeachment of waste.

To settle these and other questions arising out of the same matter (which, however, do not call for a report), a Special Case was stated under the Act 13 & 14 Vict. c. 35, which was heard before the Court of Appeal in the first instance.

Mr. Fry and Mr. Kingdon, for Mrs. Clive and Lady Peyton.-The question whether there is to be an apportionment of the rents and profits up to the period of Mrs. Clive's marriage depends on the proper construction of 4 & 5 Will. 4. c. 22. s. 2, and the reason why the case is argued before your Lordships in this first instance is that there are conflicting decisions on the point in various branches of the Court.

In

Campbell v. Campbell, 7 Beav. 482; which is an exactly similar case to this, the Master of the Rolls held that the Act of Will. 4 did not apply. In

Shipperdson v. Tower, 8 Jur. 485, Lord Justice Knight Bruce, when Vice Chancellor, decided in favour of an apportionment, and the case was followed by Vice Chancellor Kindersley in—

St. Aubyn v. St. Aubyn, 1 Dr. & S. 611. The same question has been raised before Vice Chancellor Malins in

572,

and before Vice Chancellor Bacon in

Donaldson v. Donaldson, Law Rep. 10 Eq. 635,

in both of which cases the learned Vice Chancellors, while agreeing with the construction put upon the Act by the Master of the Rolls, have felt themselves constrained to follow the decisions of the Vice Chancellors Knight Bruce and Kindersley, the latter of which was come to with both the former decisions before him.

Lady Peyton's marriage was after "The Apportionment Act, 1870" (33 & 34 Vict. 35), and the only question is whether, under the 2nd section of that Act, there is an apportionment. The question is, we admit, scarcely open to argument, but we wish to have the decision of the Court upon it.

As to waste, Mrs. Clive and Lady Peyton ought not to be punishable for it

Bankes v. Le Despencer, 10 Sim. 576; Davenport v. Davenport, 1 Hem. & M. 775.

Mr Langworthy appeared for General and Miss Clive, and for Sir Algernon Peyton, and Mr. W. W. Streeten for the trustees.

LORD JUSTICE JAMES said, that as to Mrs. Clive's share in the testator's personal estate, it was too late to alter the series of decisions which had commenced with Shipperdson v. Tower (ubi supra) in 1844, and been continued in subsequent cases down to the present day. The construction put upon the Act by those deci sions had been adopted by conveyancers and others who had had to deal with such questions, and it would be highly inexpedient to put a different construction on it now; the Court, therefore, held that as to the income of Mrs. Clive's share, there must be an apportionment. As to Lady Peyton's share, she was married since the Apportionment Act of 1870, and there could be no doubt that under that Act there must also be an apportionment of the income of her share.

On the question whether the estate for life given to Lady Peyton in the real estate was or was not to be subject to

marked that the life estate was given to Lady Peyton with a restraint against anticipation, and that it would not be consonant with that restraint if it was not also subject to impeachment for waste. He must therefore hold that in the limitation in the settlement to Lady Peyton, the words "without impeachment for waste" were not properly inserted.

LORD JUSTICE MELLISH concurred.

Charity-Mortmain-Bequest in Aid of Erecting or of Endowing an Additional Church at A.-43 Geo. 3. c. 108-Mixed Personalty.

A testatrix bequeathed her residuary personal estate to trustees upon trust to be by them applied in aid of erecting or of endowing an additional church at A. There was no additional church in course of erection or intended to be erected at the date of the will or at the testatrix's death :-Held, reversing the decision of one of the Vice Chancellors, that the intentions of the testatrix were not confined to a church in course of erection or contemplated at the date of the will or at the death of the testatrix, and an enquiry was directed whether the bequest, or any and what part thereof, could be laid out and employed as directed by the will.

A bequest for building or endowing a church is not void under the statute of mortmain, because the trustee having an option may apply the whole fund for endowment Girdlestone v. Creed, 10 Hare, 480, distinguished.

Gift supported under the 43 Geo. 3. c. 108 to the extent of 5001. out of the mixed personalty.

This was an appeal from an order made by Bacon, V.C., on further consideration. The case is reported in 40 Law J. Rep. (N.S.) Chanc. 509.

Mary Morice, by her will dated the 7th