received, but no answer sent; that the clerk of the plaintiff's attorney then offered 57., and requested the clerk of the defendant's attorney to take the costs out of it; but this he refused, and said, " the matter must-take its regular course." It was now contended, on behalf of the plaintiff, that though the rule must be absolute on account of the irregularity, which was indisputable, yet that the Court ought not to throw the costs upon the plaintiff beyond the time at which the offer to pay had been made; for that it was evident the only object of the defendant's attorney was to increase the costs and to produce delay; and it was suggested, that the costs subsequently incurred should, with a view to preventing such conduct in attorneys in future, be paid by the defendant's attorney himself.

The Court made the rule absolute, on payment, by the defendants of all costs incurred subsequent to the offer to pay made by the plaintiff.

1829.

BEESTON

v.

BECKETT.

DOE, on the demise of DANIEL, v. KEIR and others. EJECTMENT for divers messuages and lands in the several parishes of Chilsham and Lympsfield, in the county of Surrey. The demise was laid on the 10th of February, 1826. At the trial before Mr.Serjeant Onslow at Kingston, at the spring assizes, 1827 (a), a verdict was found for the plaintiff, subject to the opinion of this Court on the following case:

Philip Stanhope being seised in fee of the premises in question, by indentures of bargain and sale and release, bearing date respectively the 25th and 26th May, 1790, between the said Philip Stanhope of the first part, Elizabeth Daniel of the second part, Samuel Newnam of the third

part,

William

(a) Counsel for the plaintiff, Marryat and Hutchinson; for the defendants, Taddy, Serjt.

Where a party

who has an

estate, and also a power,

executes a

deed which is defective

under the

power, but

which would be good at common law,

the estate will

pass, though the party contemplated only an execution of the power. An appointment directed to be signed, sealed, and delivered in

the presence of two credible witnesses, is not well executed if signed, sealed, and delivered in the presence of two persons, to one of whom an estate is appointed therein by way of remainder.

1829.

DOE

V.

KEIR.

Daniel, father of the said Elizabeth Daniel, of the fourth part, and Charles Stanhope and Edward Daniel of the fifth part. in consideration of a marriage then intended to be had between the said Philip Stanhope and Elizabeth Daniel, conveyed the premises to the said Charles Stanhope and Edward Daniel, and their heirs: To the use of Philip Stanhope, his heirs and assigns, until the marriage, and after the solemnization thereof: To the use of Philip Stanhope and his assigns for life: Remainder to trustees to preserve contingent remainders: Remainder to the use of Elizabeth Daniel for life: Remainder to trustees to preserve contingent remainders: Remainder to the use of the children of said marriage in tail, as Philip Stanhope and Elizabeth Daniel should jointly, by deed or writing, appoint, or as the said Philip Stanhope should appoint in the event of his surviving the said Elizabeth Daniel; and for want of any such appointment: To the use of all and every the child and children of the said marriage as tenants in common, and the respective heirs of their bodies; and failing the issue of such child or children: To the use of every other such child or children equally, and if only one, to that one in tail; and in default of such issue: To the use of the said Philip Stanhope in fee. On the 20th May, 1790, the marriage between the said Philip Stanhope and Elizabeth Daniel took effect. On the 22d October, 1801, the said Philip Stanhope died, leaving Elizabeth Stanhope his wife, and Elizabeth Charlotte Stanhope and Eugenia Stanhope, his two daughters and only children by the said Elizabeth, him surviving, and without having made or joined in the making of any appointment. Elizabeth Charlotte Stanhope died on the 22d of June, 1816, under age and unmarried. By bargain and sale and release, bearing date respectively 3 & 4 December, 1817, between the said Elizabeth Stanhope of the first part, the said Eugenia Stanhope of the second part, Richard Greenland Denne of the third part, and Samuel Forster of the fourth part, the premises were conveyed to Denne in fee to make a tenant to the præcipe of a

recovery: To the use of the said Elizabeth Stanhope and her assigns for life, and from and immediately after the decease of the said Elizabeth Stanhope: To the use of such person and persons, and to and for such estate and estates, uses, trusts, intents and purposes, and with, under, and subject to such powers, provisoes, conditions and restrictions, and with such remainders and limitations over, and charged and chargeable with such sum and sums of money, in such manner as the said Eugenia Stanhope had already at the execution of the said last-mentioned indenture directed, limited or appointed, given or devised the same, or should at any time or times thereafter direct, limit or appoint, give or devise the same, by any deed or instrument in writing, under her hand and seal, to be executed by her in the presence of and attested by two or more credible witnesses, and either with or without power of revocation and new appointment, or by her last will and testament in writing, or any codicil or codicils thereto, to be by her signed, sealed and published in the presence of and attested by three or more credible witnesses; and in default of any such declaration, limitation or appointment, gift or devise, and so far as any such should not extend: To the use of the said Eugenia and her heirs. In Hilary term, 1818, a recovery was suffered accordingly, and the parties entered and were seised accordingly. On the 2d of October, 1818, Elizabeth Stanhope died. On the 17th of November, 1818, the said Eugenia Stanhope intermarried with John Keir. By indentures of bargain and sale and release, bearing date respectively the 12th and 13th of November, 1818, and the indenture of release being made between John Keir of the first part, the said Eugenia Stanhope of the second part, and Sir Edwin Francis Stanhope, Bart. Thomas Carter and Lawrence Keir, of the third part, being a settlement made and executed previously to the marriage of the said John Keir and Eugenia Stanhope, it was witnessed, that in consideration of the said intended marriage, and pursuant to, and by force and virtue, and in exercise and execution of, the power

1829.

DOE

V.

KEIR.

1829.

DOE

v.

KEIR.

and authority limited to the said Eugenia Stanhope by the said indentures of bargain and sale and release of the 3d and 4th of December, 1817, and the recovery suffered in pursuance thereof, and of all other powers and authorities enabling her in that behalf, she the said Eugenia Stanhope, by that deed or instrument under her hand and seal, and executed by her in the presence of the two credible persons whose names are thereupon indorsed as witnesses attesting the execution of the said indenture by her the said Eugenia Stanhope, did direct and appoint that the premises in the declaration mentioned should from thenceforth be and remain To the uses, upon the trusts, and subject to the powers thereinafter expressed concerning the same. It is also witnessed, that for the consideration aforesaid, and for a nominal consideration to the said Eugenia Stanhope paid by the said Sir E. F. Stanhope, T. Carter, and L. Keir, the said Eugenia Stanhope, with the consent of the said John Keir, did bargain, sell, and release unto the said Sir E. F. Stanhope, T. Carter, and L. Keir, among other lands, the premises in the declaration mentioned: To hold the same with the appurtenances unto the said Sir E. F. Stanhope, T. Carter, and L. Keir, and their heirs, to the uses, upon the trusts, and subject to the powers thereinafter expressed concerning the same. And it was declared that the direction, limitation and appointment, and the grant, release and confirmation therein contained should operate and enure: To the use of the said Eugenia Stanhope and her heirs until the marriage, and after the solemnization thereof: To the use of the said John Keir for life, or until he should commit an act of bankruptcy or become insolvent, or do any other act whereby his life estate would be forfeited or vested in any other person: Remainder to the use of the said Sir E. F. Stanhope, T. Carter, and L. Keir: Upon trust to preserve contingent remainders: And upon further trust, during the life of the said John Keir and Eugenia Stanhope, to pay the rents, issues and profits of the said premises to the said Eugenia Stanhope, notwithstanding her coverture;

and in case of the decease of the said Eugenia Stanhope in the life-time of the said John Keir, then: Upon trust, in case of any such bankruptcy or insolvency during the joint lives, and any issue of the said intended marriage, to pay and apply the rents and profits for the maintenance of the said John Keir and issue of the said marriage; and in case of the death of the said Eugenia Stanhope, and failure of issue of her by the said John Keir during his life, then from and after her decease and such failure of issue: In trust to pay the rents and profits to the said John Keir for life, and after the decease of the said John Keir to the use of the said Eugenia Stanhope and her assigns for life: Remainder to trustees to preserve contingent remainders: Remainder to the use of the children of the said intended marriage, as the said John Keir and Eugenia Stanhope, or the survivor of them should direct or appoint by deed or will, or in default of such appointment, to the use of all and every the children of the said John Keir by the said Eugenia Stanhope, as tenants in common, and the respective heirs of their bodies, and failing the issue of such child or children, to the use of every other such child or children equally, and if only one, to that one in tail; and for default of such issue, if the said Eugenia Stanhope should survive the said John Keir: To the use of the said Eugenia Stanhope, her heirs and assigns; but if she should die in the life-time of the said John Keir: To such uses, upon and for such trusts, intents and purposes, with, under and subject to such powers, provisoes and declarations as the said Eugenia Stanhope should, notwithstanding her coverture, by her last will and testament in writing, or any codicil or codicils to the same, signed and published by her in the presence of, and to be attested by, three or more credible witnesses, appoint; and in default of such last-mentioned appointment, and so far as any such appointment should not extend: To the use of the said Charles Stanhope in fee. The last stated indentures of the 12th and 13th November, 1818, were executed by the said John Keir and Eugenia

1829.

DOE

v.

KEIR.