would survive, there would be very little necessity for introducing this proviso in the way in which it is introduced. Then there follow these words :

"And it is hereby further agreed and declared, that, in case of the failure of issue male of Estcourt Cresswell by Anna Maria Wotton, there should happen to be no such daughter or daughters of their two bodies, or, there being any such, all of them should happen to die before any such daughter or daughters should be entitled to their or her portion or portions by virtue of those presents; or, in case all and every the trusts thereinbefore declared of and concerning the term of 1000 years, should be fully performed, then the term shall cease."

If this proviso had been couched in such terms, as that, notwithstanding the expression that I have before alluded to, the term had ceased, there would have been an end of the question. I observe Lord Eldon, in reasoning on the case of Hope v. Lord Clifden, takes notice, that the term there continued; and that, whatever might be the construction put upon the words directing the raising of the portions, yet, in the event that happened, there was a legal subsisting term which afforded the fund out of which the portions were to be raised. Here the words are, "that, in case of the failure of issue male, there shall happen to be no such daughter (an event which did not happen), or, there being such, all shall happen to die before they shall be entitled to her or their portions; or, if the trusts shall be fully performed, then the term should cease."

Now, my opinion is, upon the previous words, that the event did not happen, namely, of all the daughters dying before any one became entitled to her portion; because, having regard to all the cases (and I believe I have looked at every one which has been reported on the subject), I am bound to say, that this lady did not die before she became entitled to her portion. The consequence therefore is, that the term, at law, which was originally a term well created in remainder, still continues; and, under the trusts of this term, she, or rather the plaintiffs, who claim under her, are entitled to have the portion of 10,000'.

VOL. VIII. CHANC.

raised, which has been substituted by enlargement for the original portion.

The other questions in the case became immaterial on this view of the settlement.

After the principal point had been decided, a question was raised on the construction of the marriage settlement of Mrs. Fry (Ann Cresswell).

By that instrument she assigned the 10,000l. to trustees, upon trust for the sole and separate use and benefit of her, Ann Cresswell, and to permit and suffer her, notwithstanding her intended coverture, to have, receive, and take, as well the sum of 10,000l. and the interest thereof, and to give away or otherwise dispose of the same principal money and interest, every or any part thereof, by any writing or writings under her hand, it being the intention that the same should be for her separate disposal, notwithstanding her intended coverture; and her receipts alone should be effectual discharges for the same. And, in case the sum of 10,000l. should not have been paid over to Ann Cresswell, or to her order in her lifetime, upon trust for such person or persons, and for such intents and purposes, and in such manner and form, as she, Ann Cresswell, notwithstanding her intended coverture, by her last will and testament in writing, or by any writing in the nature of or purporting to be her last will and testament, and to be by her signed and published as therein mentioned, should direct, limit, or appoint. And if it should happen that Thomas Fry should survive her, Ann Cresswell, and there should be no such direction, limitation, or appointment of the sum of 10,000/. and the interest thereof, or of any part thereof, and in case of an incomplete appointment thereof and the interest thereof, in trust, to permit and suffer him, Thomas Fry, and his assigns, to receive and take the interest of the trust monies for his life for his and their own use and benefit; and after his decease, in trust for the children of the marriage as therein mentioned; and, if there should be no issue, in trust for the next of kin of Ann Cresswell, who would have been entitled to her personal estate in case she had died unmarried and intestate.

F

Mrs. Fry, by deed, appointed the 10,000l. to her husband, and died without children, leaving him surviving.

The Solicitor General and Mr. Pepys now contended, that her general power of disposition, under her marriage settlement, applied only to the case of the 10,000l. being raised and paid to her in her lifetime; that, if it was not actually paid to her (which was the event that happened), she had only a power of disposing of the money by will; and that, she not having appointed it by will, the money would go under the limitations of the settlement to Mr. Fry for life, remainder to the lady's next of kin.

Mr. Horne, contrà.

The Vice Chancellor.-It appears to me that the difficulty has arisen merely from the blunder of the person who prepared the instrument. It does, in the clearest terms, express what was the primary object of the parties, namely, that the fund in question should be at the complete disposal of the lady, just as if she were a feme sole; and then, when they come to state how the receipt is to be given, there is a palpable blunder; and there are blunders in almost every part of the instrument. It is true you do find some words, which primá facie would make it appear as if the parties meant the subsequent trust to arise in the event of the money not having actually been paid. But my opinion is, that that which is clear must prevail against that which is obscure; and, the general object of the parties being plainly expressed, my opinion continues the same as that which I formerly expressed, namely, that the plaintiffs are entitled to have the 10,000l. raised.

Lord Egmont. The defendants were Lord Egmont, and trustees, to whom his property had been conveyed on trusts, in which the creditors had an interest: and part of the prayer was, that Lord Egmont and the trustees might be respectively restrained from collecting the rents of the real estate, or getting in the personal estate. The bill stated, that Lord Egmont was not within the jurisdiction of the Court; and process was prayed against him, when he should come within the jurisdiction.

To this bill, one of the trustees put in the following plea :

"That John Earl of Egmont in the said bill named, was, at the time when the bill was filed, and hath since continued and been, and now is, resident at Epsom, in the county of Surrey, within the jurisdiction of this honourable Court; but yet the plaintiff hath not made John Earl of Egmont a party to the bill as he ought to have done; all which matters the defendant doth aver, &c., and he doth plead the same to the bill, and to the relief and discovery thereby sought."

After the plea was filed, the plaintiff served process on Lord Egmont, and he had appeared.

The Solicitor General, in support of the plea.

Most material relief is prayed against Lord Egmont; and the plaintiff is therefore bound to make him a party in due form. He is not made a party duly, when process is prayed against him merely when he shall come within the jurisdiction, upon a false allegation, that he is not within the jurisdiction.

Mr. Stuart, contrà.

Lord Egmont is duly made a party; for the frame of the bill is such, that he can be compelled to appear. Nay, he has been compelled to appear. He is therefore made a defendant as effectually as is possible.

The Vice Chancellor was of opinion, that a bill which stated a necessary party to be out of the jurisdiction, when in fact he was within the jurisdiction, was not duly framed: and he therefore allowed the plea, giving the plaintiff liberty to amend.

A, being tenant for life of an estate unimpeachable of waste, except as to the demesne lands, a bill is filed, alleging that Blackacre is part of the demesne lands, and that he had committed both legal and equitable waste on the demesne lands; and praying relief accordingly. By the decree it was declared, that Blackacre was not part of the demesne lands, and an account of the timber felled on the demesne lands was directed, which account had not yet been taken: afterwards the same plaintiffs filed a bill against A, alleging that he had committed equitable waste on Blackacre, and praying relief accordingly-Held, that a plea of the pendency of the former suit, was not a good plea to this second bill.

In July 1827, the present bill was filed for the purpose of obtaining an account of all timber cut or felled by the defendant in a certain wood called Lea's Wood, and on a certain farm called Temple House Farm, and which had been planted and left standing, and were intended, for ornament and shelter.

The defendant met the bill so filed by the following plea-That, before the plaintiffs exhibited their said bill, that is to say, in or as of Trinity term 1824, the said plaintiffs exhibited their bill in this court, against him, the defendant, for the same matter and to the same effect, and for the like relief and purpose, as against him, the defendant, as the plaintiffs do now, by their present bill, set forth and pray; and that he, the defendant, being served with process of subpoena for that purpose, appeared to the said former bill, and put in his answer thereto; and that various proceedings were had in the said cause; and that the said cause is yet undetermined, and the said former bill is still depending and remaining as of record. undismissed in this court; - wherefore as the plaintiffs have brought their said present bill in this court against him,

the defendant, for the like account, and praying such or the like relief as is prayed by the said former bill; he, the defendant, pleads the said former bill depending in this court in bar to the said plaintiffs' bill, and to the discovery and relief therein prayed.

By an order, dated 25 July 1827, it was referred to the Master in rotation to look into the said two bills and certify whether they were for the same matters or not; and, by his report, dated 2nd August 1827, the Master certified that he found that the said two bills were for the same

matters.

The plaintiffs thereupon filed an exception to such report, and set down the defendant's plea for argument.

On the matter coming on for argument, the Court, by an order dated November 22, 1827, directed the plaintiffs' exception to be withdrawn, and referred it to the Master to look into the plaintiffs' bill in this cause, and into the defendant's plea thereto, and the bill in the said plea mentioned to have been formerly exhibited by the plaintiffs against the defendant, and the proceedings in the said cause ;-and he was ordered to certify, whether the said bill formerly exhibited was for the same matter, and to the same effect, and for the like relief and purpose, as against the defendant, as the plaintiffs' bill in this cause, or not; and whether the said former cause was yet undetermined, and was still depending and remaining as of record undismissed in this court.

By his report, dated 1st April, 1828, the Master certified, that the bill, in the plea mentioned to have been formerly filed by the plaintiffs against the defendant, was so filed for the purpose of obtaining relief in respect of waste therein alleged to have been committed by the defendant, as tenant for life of certain estates, consisting of two mansion-houses, called Arbury and Astley Castle, and divers lands and hereditaments, in the county of Warwick, devised by the will of Sir Roger Newdigate, bart.; by which will the said estates were devised to the defendant for life, without impeachment of waste (except as to the timber grow. ing in the park, avenues, demesne lands and woods adjoining to the capital messuage called Arbury), with remainder to trus

tees, in trust for the plaintiff, Charles Newdigate Newdigate, for life, without impeachment of waste, with remainder to the first and other sons of the said plaintiff in tail male. The Master further certified, that, by the said bill, it was alleged, among other things, that a certain wood, called Lea's Wood, and a certain farm, called Temple House Farm, formed part of the demesne lands adjoining or belonging to the said mansion-house called Arbury, and were accordingly comprised in the exception as to waste contained in the said will; that the defendant had cut timber growing upon the said wood and farm (amongst others) to a very considerable amount, and had also cut down, or caused to be cut down, timber and other trees in every part of the said estate and premises belonging to the said capital mansion house-many of which were, or were intended to be, ornamental, and afforded shelter to the said mansion-house, and farm-house, and buildings, or to the gardens and pleasuregrounds thereto belonging. And the Master further certified, that the plaintiffs, by the said former bill, prayed that an account might be taken of all such timber and other trees as were then growing in the park, avenues, demesne lands and woods adjoining the said capital messuage called Arbury, and also of all such trees growing upon the said estates, and intended for ornament and shelter, as had, during the period therein mentioned, been felled by the order or with permission of the defendant, and of the monies which had been received by him, or for his use, in respect thereof; and that the defendant might be restrained from further cutting down any timber within the description aforesaid. And the said Master further certified, that the cause, being at issue, came on to be heard,-when the then Vice Chancellor pronounced a decree, whereby it was declared, that the words constituting the exception in the said will denoted the lands comprised in a certain map exhibited in the said cause, and which lands are in the same decree particularly mentioned; but that the wood, called Lea's Wood, and the farm, called Temple House, are not among the premises so declared to be comprised in the said exception, the plaintiffs having failed to

establish by evidence that they were within the exception; and, by such decree, an account was directed of all the timber that had been felled or cut in the park, avenues, demesne lands, and woods, thereby declared to be comprised in the said exception, and of the monies received in respect of the same. The report also stated, that there was not any account directed as to the timber or trees which were growing on the said estates, and intended for ornament and shelter, and which had been cut down or felled by the defendant; that it appeared that there was not any evidence entered into in the former suit in respect of the timber and trees so alleged to have been intended for ornament and shelter, although the bill prayed relief in that behalf; and that there was not any appeal preferred against the said decree, but that there had not as yet been any proceedings had or taken before the Master in respect of the accounts thereby directed.

The Master then went on to certify, that the plaintiffs' bill in this cause had been filed for the purpose of obtaining an account of all timber cut or felled in the wood, called Lea's Wood, and on the farm, called Temple House Farm, which had been planted and left standing, and were intended, for ornament and shelter, and for which purpose it was alleged in the bill, that, since the decree in the former cause, the plaintiffs had been informed and believed that the timber and other trees growing, standing, or being, as well in the wood as on the farm, were planted and left standing for ornament, and, at the time the defendant first came into possession of the estate and premises, were of remarkably fine growth, and afforded shelter and ornament to the mansion-house, called Arbury, and to the park, pleasure grounds, and buildings thereto belonging; and that the defendant since he had been in possession of the estate, had caused to be cut down divers timber and other trees which were, or were so intended to be, ornamental and afforded shelter, &c. the Master then, after stating the prayer of the second bill, certified that, inasmuch as the first bill prayed an account of all timber trees growing upon the estates, and intended for ornament and shelter, which had been felled and cut by the defendant, and the present bill prayed an account of

And

timber cut and felled in the wood and farm, on the ground of such timber being intended for ornament and shelter, the bill formerly exhibited, in so far as regards such timber, was for the same matter and to the same effect, and for the like relief and purpose, as against the defendant, as the present bill, save that such former bill prayed a general account and relief in respect of ornamental timber cut on all the devised estates; whereas, the present bill prayed an account and relief in respect of ornamental timber cut in the wood and on the farm only. The Master further certified, that the former cause having been heard, and a decree pronounced in it, such cause was by such decree determined, so far as regarded all the matters in question between the parties, raised by the pleadings in that cause; but that, so far as regarded the accounts directed by the decree, the former decree was yet undetermined, inasmuch as such accounts had not yet been taken; and that, by reason of such accounts not having been taken, such former bill was still depending and remaining on record undismissed in this court.

The question was, whether, in this state of things, the present suit ought to be permitted to go on; or, whether the facts appearing on the plea, and taken in connexion with the Master's report, should not afford a sufficient bar to the further prosecution of the suit.

The Solicitor General and Mr. Bridger were in support of the plea.

The principle on which a plea of a former suit depending, is permitted, is thisthat a defendant is not to be harassed by two suits for the same purpose. It is clear, that the former bill stated a case on which, if true, the relief sought here might have been obtained; and if the defendants did not include that part of the case in the decree, it still remains on the record; and if they are dissatisfied with the decree, they may rehear in on appeal. The subject matter of the present bill was included in the former bill, and the Master has so found. The plea must, therefore, be allowed.

Mr. Pepys and Mr. Jemmett were in support of the bill.

No evidence having been gone into, in the former suit, as to the equitable waste, it

became, in fact, a suit relating only to the extent of the lands comprised in the exception; and it is not possible to obtain in it relief, except with respect to those lands, and the commission of legal waste upon them. No appeal or rehearing would give the plaintiffs any relief in that suit, as to equitable waste. In substance, therefore, it appears on the report, that the two suits are not for the same purpose.

The Vice Chancellor.-The original suit was instituted for the purpose of determining the question, whether there might, or not, be a legal waste committed on certain lands, which depended on the question, whether those lands were within a certain exception; for the party was made tenant for life without impeachment of waste of all the estate, except certain lands particularly described. It was alleged, that certain lands did come within the exception; and the question was, whether there was legal waste or not. That bill also contained the general allegation, that, on all the parts of the estate, without specifying any one particularly, there had been equitable waste committed by means of cutting down timber planted for shelter or ornament. Now, it appears, that suit was so conducted, that no evidence whatever was given on the point raised as to equitable waste; and the point decided by the Court, and the only point presented to it for decision, was, as to the meaning of the exception. The Court made a decree, which declared the meaning of the exception; and the accounts which were directed, were accounts which were consequential on the meaning, which the Court, by its decision, gave to the terms of the exception. The decree in the cause having been made, the accounts proceeding, and the decree not having been signed and enrolled,. the plaintiff files his bill for the purpose of having an account of equitable waste committed in certain parts of the estate; and to this bill, so framed, having one single object, the defendant has pleaded, "That the plaintiffs at a certain time exhibited their bill of complaint against the defendant for the same matter and to the same effect, and for the like relief and purposes, against this defendant, as the plaintiffs do now by their present bill set forth