my 1 Brother Keating, that if a cotton manufacturer was employed elsewhere to make this material to cover the steel, no person could hesitate to say that such a manufacture was within the statutes. Then are these premises the less for the manufacture of cotton fabrics, because the cotton is at some time not to be wound round steel? I am of opinion that the magistrates were wrong. WILLIAMS, J.-I am of the same opinion. The exhibit marked "B." is a manufacture of a cotton fabric, and the case finds that this manufacture is worked by steam. I think that the premises where this manufacture is carried on are within the meaning of the enactment in the Factory Act, 7 & 8 Vict. c. 15. It is clear, that whatever becomes of this fabric afterwards, it is still a fabric of cotton manufactured by steam. I think the magistrates were wrong, and that the appellant is entitled to our judgment. KEATING, J.-I am of the same opinion. The premises of the respondent were used for the manufactare of a cotton fabric by steam. I certainly do not see that the fabric is less within the statute by reason of the purpose to which it is applied after it is manufactured.-Judgment for the appellant. COURT OF EXCHEQUER. HILARY TERM. she gave the note now sued upon. The circumstances which preceded the giving this note which are material to be noticed are the following:-In 1837, her husband's account being then overdrawn, and the plaintiffs being aware that she had separate estate, agreed that her husband should have permission to overdraw his account to the extent of 9501. for a period of two years, the plaintiffs retaining certain securities then in their hands, and having, by way of further security, a joint promissory note of the defendant's husband and herself for 950l. The defendant's husband and herself gave a joint promissory note for that amouut. In 1840 a new arrangement was come to, substantially the same as the former. A new joint promissory note was given, dated the 1st August, 1840, for the sum of 9507. In 1848 an arrangement was come to, and a third joint promissory note, viz. one for the sum of 10007., dated the 1st January, 1848, was given by the defendant's husband and herself. The terms of this arrangement are not distinctly stated in the case. It is, however, clear that the note was given as a security to the bank for the overdrawn account of George La Touche. It is not, however, at all clear with respect to this note, whether there was any limitation of time during which the arrangement was to be in force, as on the previous occasions. In 1855 the husband died. At that time there was a balance of 23407. 168. 4d. due from him to the bank. This was reduced by securities which have been realised, viz. assignment of a policy and of a legacy to 9177. 118. The bank [Coram POLLOCK, C. B., MARTIN, CHANNELL, and then applied to the defendants by a letter, in which PIGOTT, BB.] LA TOUCHE and Others v. LA TOUCHE.-Jan. 23 and Feb. 10. Consideration for promise—Statute of Limitations-Married woman's separate estate. A woman, with separate estate, joined with her husband in a promissory note, payable on demand, to secure the balance against him at his banker's. The balance continued against him till his death, which happened seven years afterwards; and after that event she signed a promissory note for the unsecured balance:-Held, that the foregoing transaction constituted a good consideration for the latter note. your they stated that this last-mentioned balance is uncovered by any security; an application "for Mr. La Touche's joint note for the same having been and postponed on account of his illness." The defendant in reply expresses her regret that she is unable to pay the amount, and ultimately signs the note upon which this action is brought. The question we have to dethink she is. We do not adopt the argument of the cide is, whether she is liable upon this note, and we count with the late George La Touche," in the note, plaintiff's counsel, that the words, "for value on acpreclude the defendants from shewing there was no primâ facie imports a consideration, the onus of proof consideration for her making it. lies upon the defendant to shew that there was no con But as the note This was a special case. The facts essential to the sideration for this note, which was made at a time decision are set out in the judgment. The case was argued by Borill (with whom was W. R. Cole), for the plaintiffs; and C. Pollock (with Harington), for the defendant. The following cases were cited:-Ridout v. Bristow (1 Cr. & J. 231); Serle v. Waterworth (4 M. & W. 9, 795); Lee v. Muggeridge (5 Taunt. 36); Lampleigh v. Braithwait (Hob. 105); Pease v. Hirst (10 B. & Cr. 122); Flight v. Reed (9 Jur., N. S., 1016); and Johnson V. Gallagher (30 L. J., Ch., 298). Cur. adv. vult. CHANNELL, B., now delivered the judgment of the Court. This was a special case stated, without pleadings, for the opinion of the Court, and was argued before us in the course of the present term. The question is, whether the defendant is liable on a promissory note for 9177. 11s., dated the 28th August, 1856, payable to the plaintiffs or order. The facts, as they may be extracted from the case agreed upon, may be shortly stated. The plaintiffs are bankers in Dublin. They had for many years prior to 1837, and down to the time of his death, a banking account with Mr. George La Touche, with whom the defendant, Amelie La Touche, intermarried in the year 1831. On the occasion of the marriage, property was settled in the usual way to the defendant's separate use. On the 25th November, $55, the defendant's husband died. After his death when she was not under coverture. We do not think that the facts stated in this case shew there was no consideration. The note of 1848, although made during coverture, was binding on the defendant's separate estate. Unless something occurred to discharge the defendant's separate estate from liability, there was, we think, a good consideration for the note now sued upon made by her after her coverture was determined. It is not, we think, material, that more than six years elapsed from 1848 to 1855, for it has been held that a debt barred by the Statute of Limitations, and as to which the remedy is gone, is still a good consideration for a promise in writing to pay. We think that the same principle applies to the present case, though the note of 1848 was signed by the defendant when covert, and only bound her separate estate in equity. It was argued that the note must be taken to have been made, subject to some agreement between the parties either as to the time for which George La Touche was to be permitted to overdraw his account, or that it was to be a security (collateral to the assignment of the policy and legacy) for the then overdrawn account to the amount of 1000l. only, and not a security for a new credit beyond the 10007.; and that if such agreement existed, then that 10007. having been realised on the policy and assignment of the legacy, the note of 1848 was, in effect, satisfied, and 1 afforded no consideration for the subsequent one. We Sir R. Phillimore, Q. A., for the Bishop of Norwich think, however, that it does not appear upon the case thought it his duty to call the Court's attention to stated that there was any such agreement, and it is former proceedings instituted against the defendant for the defendant to shew it. The only statements by the bishop, for performing certain ceremonies in his in the case at all tending to shew such an agreement own church contrary to the injunction of the bishop are contained in the letters of the plaintiffs of the On that occasion also the defendant submitted, and 31st July and 28th August, 1856, and which are to the suit was stayed, but the articles remain amongs the effect, that the balance beyond the amount of the the records of the court. As Mr. Drury has again of policy and legacy "is uncovered by any security." | fended, he must take the consequences. This, however, when taken with the next sentence, "an application for your and Mr. La Touche's joint note for the same having been postponed on account of his illness," seems to refer to the fact, that the six years had expired since the note of 1848, rather than to admit that that note would not have been, during the six years, a security for such a balance on the ground of any agreement subject to which it was given. Our judgment will, therefore, be for the plaintiffs.-Judgment for the plaintiffs. COURT OF ARCHES. KITSON v. DRURY.-March 6. Dr. LUSHINGTON.-This suit is instituted by the secretary of the Bishop of Norwich against the Rev George Drury. The fourth article charges, that on particular day Mr. Drury publicly performed the office of the Church in a room not consecrated or licensed and without any license or authority for so doing from the bishop of the diocese. Now, it is not denied-in deed, it cannot be that if this article be proved, an ecclesiastical offence has been committed. An affirma tive issue to the articles has been given; consequently both the law and facts are admitted, and Mr. Drury on his own confession, stands guilty, as I have said of an ecclesiastical offence. This gentleman, then having given an affirmative issue, offers an affidavit explanatory of his conduct; and in order to avoid a Criminal suit-Officiating in an unconsecrated and unli- condemnation in costs-for such condemnation there censed building-Costs. must be, unless grounds are shewn to induce the Court in the exercise of justice, to come to a contrary de Articles having been filed against a clergyman of the cision. It has been objected, that I cannot receive Church of England, wherein he was charged with having such an affidavit; but I shall certainly do so, other publicly read prayers and administered the Holy Sa-wise there would be an end of affirmative issues; for crament according to the rites and ceremonies of the United Church of England and Ireland, in a room not consecrated or licensed, and without any authority from the bishop of the diocese, he gave an affirmative issue: -Held, that a misapprehension of the law, and the fact that other clergymen of the diocese had acted in a similar way with impunity, were no grounds for noncondemnation of the defendant in the costs of the suit. When a defendant gives an affirmative issue to articles in a criminal suit, he may at the same time file an affidavit explanatory of his conduct. This was a suit instituted by John Kitson, of the hamlet of Thorpe, in the city of Norwich, secretary of the bishop of the diocese, against the Reverend George Drury, rector of Claydon-with-Akenham, Suffolk, clerk, and brought by letters of request from the Consistory Court of the Bishop of Norwich. The fourth article set out the offence charged as follows:That you did on Thursday, the 5th May, 1864, being Ascension-day, publicly read prayers and administer the Holy Communion of the Lord's Supper, according to the rites and ceremonies of the United Church of England and Ireland, in a room not consecrated nor licensed, called the chapel of a certain building situate in the city of Norwich, commonly called or known as the Monastery, in the said diocese of Norwich and province of Canterbury, without any license or authority for so doing of the Bishop of Norwich. On the 10th January, 1865, Moore, as proctor for Mr. Drury, retracted the negative issue before given to the articles brought in and admitted in the cause, and gave an affirmative issue. On the case being heard, Twiss, Q. C., and Swabey contended that the Court could not condemn the defendant in costs, or at any rate in full costs. He had not acted against the injunction of the bishop, and had abstained as soon as he was informed he was acting contrary to law. He misapprehended the effect of the 18 & 19 Vict. c. 86, supposing that statute to apply to clergymen of the Church of England. [They cited Barton v. Wells (1 Cons. 21); Carr v. Marsh (2 Phillim. 201): Barnes v. Shore (1 Robert. 382); Freeland v. Neale (1 Robert. 643; 12 Jur. 635); and Jones v. Jelf (8 Law T., N. S., 399).] no one would give such an issue, unless he were per mitted at the same time to offer some explanation of the circumstances under which the offence was com mitted. According to my recollection, such an affidavit was admitted in Jones v. Jelf, a case cited at the bar. Of course, such an affidavit is open to contradiction on the other side; and an opportunity, if necessary, for ought I to condemn Mr. Drury in the costs of this that purpose shall be given. The question, then, is suit? I will observe, that I intend, in the first in stance, to deliver my judgment without any reference to the earlier proceedings taken against him, an which are to be found in the records of this court Now, I need hardly say, that the ordinary, indeed the universal, practice is, to condemn a guilty party in the costs. It would be a great hardship upon the bishop within whose cognisance the offence arises, if after h has proved and established his case he were not to be satisfied as to the expense of so doing. In the cas cited (Barton v. Wells), the circumstances were totally different. It was a suit instituted merely to try a civi right—a question of some difficulty; and Lord Stowel thought, that as it was an exceptional case, not insti tuted to punish the defendant, but to inquire into th law, he was justified in merely condemning the de fendant in nominal costs. Since then the question of costs has undergone great changes, and they now gene rally fall upon the losing party. What is the duty o the bishop, when he finds that the law has been vio lated? He is clearly bound to enforce it. No doubt thi is an onerous duty, but the good of the diocese require that the sacredness of the law should be maintained If, however, there be circumstances brought to his no tice which induce him, notwithstanding a violation, t abstain from punishing the offender, it is a matte entirely within his own discretion; this Court canno question his determination. Mr. Drury states, that i acting as he did, he misapprehended the law, and tha as soon as his attention was called to it, he abstained from further acts. Now, Mr. Drury is an incumben of many years standing; he was instituted in 1848 His case, therefore, is not like that of a young ma who has just taken orders. Moreover, it is one of the first principles of law, that ignorance is no justifica tion. Again, he says, that several other clergymen of late years have acted in a similar way in this diocese with impunity. But if this be not an isolated instance, and others, whether wilfully or carelessly, have been violating the law, it is more especially the duty of the bishop to prevent a repetition of these offences; and I cannot conceive it is otherwise than fit that the bishop should at once take such steps, as he may be advised, to that end. It seems to me that Mr. Drury has offered no sufficient excuse for his conduct, or why I should not proceed to the usual sentence. I think I am entitled to refer to the antecedent proceedings I have before mentioned; and if so, I there find strong grounds to justify the bishop in persevering with the present suit. On that occasion Mr. Drury acted directly contrary to the injunctions of the bishop; but, after the suit was instituted, he submitted, and it was stayed. He has again offended; and the bishop has felt it to be his duty to interfere and resort to this Court. I think he is perfectly justified in so doing. I admonish Mr. Drury to abstain from offending again, and I condemn him in the costs of the suit. COURT OF CHANCERY. Ex parte GIBSON, re PATTRICK.-March 18. Bankruptcy-Colonial insolvency. An uncertificated colonial insolvent petitioned the Court of Bankruptcy in England. His discharge was suspended with protection, for twelve months, in order to enable the colonial creditors to come in and prove their debts, and was then made conditional upon his future property being made available for his creditors. Appeal from an order of Mr. Commissioner Andrews, made at Exeter on the 29th December, 1864. George Pattrick having resided at Sidney, in Australia, for eighteen or nineteen years, where he engaged in certain trading transactions, became insolvent in April, 1860, and his estate was then placed under compulsory sequestration in the New South Wales Insolvency Court. His debts amounted to 76677., and his assets to 6414; but in 1847 he had married a lady who was a ward in Chancery, and upon whom was settled, by an order of the Court, separate estate producing, after 1851, an income of between 8001. and 9007. per annum. The assets were distributed, and the creditors received 18. 6d. in the pound. In November, 1860, George Pattrick applied to the colonial court for a certificate, when certain of his creditors took objections; and evidence was given by George Pattrick upon their objections on the 27th November, 1860, and the 5th February, 1861. Almost immediately after his last examination, and whilst his application for a certificate was pending, George Pattrick left Sidney for Melbourne, on his way to England, and arrived in England in March, 1862. The New South Wales Insolvency Act (5 Vict., No. 17, 1841) provides, in sect. 31, that no action shall be brought against any insolvent for any debt or demand provable against his estate (after that estate is vested in the chief commissioner by sequestration), until trustees be appointed for the administration of the estate. And the same act, in sect. 66, provides, that no insolvent shall remove out of the jurisdiction of the Supreme Court of the colony until after confirmation and allowance of the account and plan of distribution of the estate of such insolvent, except with the consent in writing of three-fourths of the creditors who have proved, or such insolvent shall have obtained his certificate, and the allowance thereof. Soon after the arrival in England of George Pattrick, one of his Australian creditors, Mr. Gibson, No. 535, VOL. XI., NEW SERies. brought an action in England against him for a debt of 125l., for money lent and interest, which he had not proved under the Australian insolvency. Mr. George Pattrick pleaded the proceedings in Australia, but judgment was given against him, and a writ of ca. sa, was issued. Pattrick having contracted debts in the county of Devon to the extent of 1147., in July, 1863, petitioned the Devonshire county court; his petition was dismissed on the 12th January, 1864, and in February, 1864, he filed a petition in the district court of bankruptcy at Exeter, including in his schedule his Australian debts, and was adjudicated bankrupt. After the adjudication, an application was made on behalf of Mr. Gibson to the district court for the dismissal of the petition, on account of the proceedings in the colony, which was refused by the commissioner, on the ground that the bankrupt had not obtained his colonial certificate. On the 12th April, 1864, the objections urged on the part of Mr. Gibson, the opposing creditor, were heard. On the 3rd May, his honor the district commissioner directed that notice of the English proceedings should be advertised in Australia, overruled Mr. Gibson's objections, and adjourned the meeting for the last examination and discharge to the 15th December, when the application to amend was renewed, and again refused. Pending these proceedings, an application was made on the 14th May, on behalf of Mr. Pattrick, to the chief commissioner of insolvency at Sidney for a certificate of conformity, which was refused. On the 29th December Mr. Commissioner Andrews gave the judgment now appealed from, granting the bankrupt his order of discharge, after suspension thereof for eight months, with protection; the reason of the suspension being, that the bankrupt had contracted debts in England without reasonable expectation of being able to pay the same. The whole sum realised under the bankruptcy was a little over 40%., the proceeds of the sale of a waggonette. Sargood, for Mr. Gibson, the opposing creditor, in support of the appeal.-The bankrupt was found insolvent in Australia; that insolvency will be recognised here; and a second bankruptcy and insolvency here cannot be allowed to enable the bankrupt to get rid of his debts under the Australian insolvency. Two commissions of bankruptcy cannot subsist together (Ex parte Brown, 2 Ves. jun. 66); whether separate or joint (Ex parte Martin, 15 Ves. 114). LORD CHANCELLOR.-You say the status of the Australian bankruptcy and of the Australian assignee would be recognised here, so as to preclude a bankruptcy here; upon what general principle is this? It may be that the second bankruptcy may be material for the purposes of the first bankruptcy. The one may be ancillary to the other; and creditors under the second might, by using greater diligence, obtain here for themselves a portion of the assets, and transmit the remainder to the Australian assignee; so that I could not say that there should not be two co-existent commissions when it might be advantageous for the creditors that such should be the case. If the English bankruptcy appears fraudulent, I think the proper application to the Court wonld have been to annul it. Would any Australian debts be provable here? Sargood said he saw no reason why that should not be the case. LORD CHANCELLOR.-If so, my impression is, that the commissioner ought to have adjourned the application for discharge indefinitely. [His Lordship then called upon Mr. Bagley.] Bagley, for the bankrupt.-The only opposing creditor is one who might have come in under the Aus m tralian insolvency, but who chose to bring his action here, which he could not do in Australia. The bankrupt never obtained his certificate under the first bankruptcy; so even if the first bankruptcy had been an English one, a second could be sustained; à fortiori, therefore, an Australian bankruptcy is no bar. The 75th section of the Bankruptcy Act of 1861 (24 & 25 Vict. c. 134), recognises the filing of a colonial petition in insolvency by or against a debtor as sufficient evidence of an act of bankruptcy to enable a creditor here to petition for adjudication. This shews that the Legislature contemplated a colonial insolvency and an English bankruptcy as co-existent. An Australian judgment gives no right to execution here, but leaves the English remedies untouched. The bankrupt was, however, justified in leaving the colony, as the requisites of the 66th section of the New South Wales Act had been complied with. Nothing that took place in Australia can bar rights in England; and the fact that the bankrupt some years ago resided in Australia, does not give his creditors larger remedies than if he had lived here. The object of the creditor here is to compel the wife to pay her husband's debts out of her separate estate. The English debts had, in fact, heen already paid. [He cited Morgan v. Knight (33 L. J., C. P., 28, 168); Herbert V. Sayer (5 Q. B. 965); Butler v. Hobson (4 Bing. N. C. 290); and Ex parte Cridland (3 V. & B. 94).] W. W. Karslake, for the assignee, supported the order of the commissioner, and asked for his costs. LORD CHANCELLOR.-I know of nothing which would be of more evil example, or more mischievous in its consequences, than to give the slightest encouragement to a course of action like that which has been adopted by this bankrupt. A gentleman has been made bankrupt in Australia, and is refused his certificate there, but being fortunate enough to be married to a wife having property settled to her separate use, he comes and lives in this country on that separate property. Being pursued here, and rightly pursued, by one of his Australian creditors, he endeavours, by a misapplication of the law of bankruptcy in this country, to obtain here that which he has failed, and justly failed, to get in Sidney, namely, a discharge from his debts. Now, it would be impossible to imagine a greater perversion of the law of bankruptcy, than if I were to make this country an asylum for persons coming here from their place of domicil to escape their creditors, and to allow such persons, by making a clandestine application to one of the county courts, thereby to obtain a discharge which would be a bar to the claims of those creditors. Unquestionably, if an order upon an application to annul had been brought before me, I should not have hesitated to annul the present adjudication; but I do not think that upon this application I can deal with this case in that manner. There could be no greater perversion of the law of bankruptcy than to allow it to minister to the discharge of this bankrupt. I do not, however, desire his incarceration; I shall extend the time of suspension, but I will not allow his discharge, when it is granted, to have the effect of relieving his future estate from liability to his debts. I shall give the bankrupt protection during twelve months, and shall suspend the order of discharge, in order that his creditors may have an opportunity of coming in to prove their debts. With regard to the assignee, he has elected to support the bankrupt's case, and by that case, therefore, he must stand or fall. He will, therefore, have no costs out of the estate. The appellant may take back his deposit, and have his costs. Note for reference-24 & 25 Vict. c. 134, s. 75. E. K. Karslake, for the plaintiffs. Kay, for the defendant, objected that this was not an appeal from an order of the Vice-Chancellor, but from that of his clerk, and that the Lords Justices & J. 113) their Lordships had refused to hear an would not hear it. In Stroughill v. Gulliver (1 De G. appeal which had not previously been argued by counsel, and this had not. Counsel did not attend before the chief clerk (Hudson v. Carmichael, 18 Jur. 852), and Vice-Chancellor Stuart would not hear counsel in chambers; Vice-Chancellor Wood only in Chancellor Kindersley heard counsel continually in peculiar cases. The Master of the Rolls and Vicechambers. The plaintiffs ought to have moved in court before the Vice-Chancellor to have the order discharged. order had been made in chambers by the judge himE. B. Karslake, for the plaintiffs, said that the self, and it would be absurd to compel the plaintiffs to move in court to have that order discharged, as of course it would be. tice is imperative, the case had better go on. As a Sir J. L. KNIGHT BRUCE, L. J.-Unless the pracgeneral rule, I adhere to the practice as laid down in Stroughill v. Gulliver (1 De G. & J. 113); but this is a There was a default by the plaintiffs in not asking peculiar case, and must not be drawn into a precedent. the judge to hear counsel in chambers. Notes for reference-Morg. Ch. Prac. 145; 15 & 16 Vict. c. 80, s. 28. Re SKEGGS.-March 24. A testator gave to his wife all the residue of his personal estate, including all moneys to which he was entitled under his father's marriage settlement, and declared that it was not his intention to make any disposition of his real estate. He was entitled under his father's marriage settlement to a sum of Consols, the proceeds of the sale of real estate, taken under compulsory powers, and paid into court:-Held, upon the construction of the will, that this sum was not included in the moneys bequeathed, but went as real estate to the heir. Petition of appeal presented with signature of one counsel only. John Skeggs, who died in 1858, by his will, dated the 21st November, 1851, after reciting that, by the settlement made on his marriage with his wife, dated the 26th September, 1822, the inheritance in feesimple in certain hereditaments in the county of Kent, was assured and limited to the use of him and his assigns during his life, with remainder, subject to the jointure for his said wife, in case she should survive him, to the use of all and every, or such one or more of his children by his said wife as he should by deed or will appoint, in execution of that power appointed and devised the whole of the hereditaments so settled, including the sum of 300l. paid into the Bank of England as the purchase moneys for three 8 , acres and a half of land, part of the said settled estates taken in April, 1844, by the guardians of the poor of the union of Bromley, in Kent, unto and to the use of his only surviving son John Francis Skeggs, his heirs and assigns, for ever. The piece of land mentioned in the will had been conveyed to the guardians of Bromley on the 4th April, 1844, at the price of 3001, and that sum was paid into court under the act 5 & 6 Will. 4, intituled "An Act to facilitate the Conveyance of Workhouses and other Property of Parishes, and of Incorporations or Union of Parishes in England and Wales," to the account of the surviving trustee of the marriage settlement. The money was invested in Consols, and had remained in court, and John Skeggs's widow was living. John Francis Skeggs, the son, by his will, dated the 10th January, 1859, after giving certain specific legacies, made the following bequest :-" And as to all the residue and remainder of my personal estate and effects, whatsoever and wheresoever, of which I shall be possessed, or over which I shall have any power of appointment or disposition at the time of my decease, and including in such personal estate all moneys to which I may be entitled under the settlement made on the marriage of my father and mother, or under the will of my said father, or under the wills of my late aunts Elizabeth and Mary Skeggs, or any appointment made by my said father under the power given to him by the wills of my said aunts, or either of them, and all money due to me on mortgage or otherwise, I give and dispose of the same to my wife Ann Skeggs and to John Forster," upon certain trusts for conversion. And the testator directed that his trustees should hold the moneys thence to arise," and also the ready money and money in the stocks or funds of or to which I may be possessed or entitled at the time of my decease," upon trust, out of the same moneys, to pay his debts and legacies, and to lay out the surplus in Government securities, in trust for his wife. He then devised all estates vested in him as trustee or mortgagee, to his trustees. And the will contained this clause:-" And I hereby declare, that it is not at present my intention to make any devise or disposition of my freehold or other real estate of which I may be seised, possessed, or entitled at the time of my decease; meaning that this will shall apply only to my personal estate and chattels real.” The testator died on the 12th June, 1864, leaving his widow surviving, and his only sister, Mary O'Reilly, his heiress-at-law. John Francis Skeggs was not entitled to any money or other personal estate under the settlement, except the sum of 3027. 138. Consols, in which the 3007. had been invested, or to anything under his father's will, except a life interest in a moiety of the residuary personal estate of his father. The widow of John Francis Skeggs had presented a petition for payment of the 3027. 12s. Consols to her, as having passed to her under the bequests in the will of John Francis Skeggs. Mary O'Reilly, as heiress-atlaw of John Francis Skeggs, opposed, and the ViceChancellor Kindersley decided that the Consols passed to Mary O'Reilly. Ann Skeggs, the widow, appealed, and the appeal now came on to be heard. She only appeared by one counsel in the court below, and the Lords Justices had allowed the petition of appeal to be presented with the signature of one counsel only. F. H. Colt, for the petitioner Mrs. Skeggs.-If the testator had used the word "stocks," there would have been no doubt; and money includes stock in the funds. He intends to give his widow all his personal estate, and this might have been taken out of court at any time. Jessel, for Mary O'Reilly, as to the meaning of the word "money," cited Langdale v. Whitfield (4 Kay & J. 426; 4 Jur., N. S., 706) and Lowe v. Thomas (18 Jur. 563). [As to election, see Pulteney v. Darlington (1 Bro. C. C. 238).] Sir G. J. TURNER, L. J., after stating the case, said This testator has on the face of his will expressly declared that it was not his intention then to make any devise or disposition of any freehold or real estate of which he might die possessed; and he declared also that he meant that his will should apply only to personal estate and chattels real. I think that, in the face of such a declaration, a strong context must be found upon the will itself to cause real estate to pass under a description which applied naturally to personal estate only. The argument for the appellant is, that the sum of stock in question, which was undoubtedly in the eye of the Court real estate, must pass under the will, because the testator has said that he included in such personal estate "all moneys to which he might be entitled under the settlement made on the marriage of his father and mother;" and these are the only words in which it was possible to contend that the sum of stock was included. Now, in the first place, what was the position of the fund? It was the proceeds of the sale of part of the same estate which was subject to the jointure of the testator's mother; and the testator was no doubt entitled, under the circumstances, to say that, as between his own real and personal representatives, it should be taken to be personal estate; but in order that it should be taken as personal estate, a very clear and distinct declaration of the testator's intention must be found in the will. It was a case in which the testator had no means of making a conclusive personal election as to the form in which he would take the property, inasmuch as the testator's mother, as jointress of this fund, might, as well as himself, have called for an investment of it upon freeholds. Upon the language of the will it is clear that the testator was referring to what might be the state of circumstances at his own death, when he said-" And as to all the residue and remainder of my personal estate and effects of which I shall be possessed, or over which I shall have any power of appointment at the time of my decease, and including in such personal estate all moneys to which I may be entitled under the settlement made on the marriage of my father and mother, or under the will of my said father." Now, at the time of his decease, it was perfectly possible that this property might have been converted actually into personal estate by various acts which it was in his power to do; and though possibly there might be an argument as to whether the word แ money" would pass this sum of stock, it is unnecessary for the Court to decide it. The real question is, whether the testator was at the date of his will looking to the circumstances as they at that time were, or to a possible future state of circumstances which might exist at the time of his death; and even admitting that the word "money" might include stock, it does not appear to me to follow that this stock would pass under this description in the will. He was looking at the state of circumstances as they should stand at the time of his own death, and there is no intention apparent upon the will sufficiently strong to controvert the express declaration of his present intention not to make any devise or disposition of real estate, but that his will should apply to personal estate only. I entirely concur, therefore, in the learned Vice-Chancellor's opinion." Sir J. L. KNIGHT BRUCE, L. J.-I feel some difficulty in the case, but the agreement of opinion of the Vice-Chancellor and the Lord Justice renders that |