under the circumstances, and for testamentary purposes, she must be taken to have been a feme sole at the time she executed the will, and probate of it was decreed. Sarah Coward, of Castlemaine, in the county of Talbot, Victoria, and formerly of Maryport, in the county of Cumberland, in England, wife of Fleming Coward, died on the 30th July, 1858. James M'Niel (her father), late of Maryport, shipowner, died in the month of April, 1846, having made a will, dated the 31st March, 1846, by which he devised a messuage at Maryport, and bequeathed one-sixteenth part of and in the brig Congress, to his daughter Sarah Coward, and on the death of his wife, who is still living, onethird share of his household furniture, plate, linen, and china. In 1853 Mr. and Mrs. Coward proceeded to Australia, accompanied by Mrs. Coward's two children, William M'Millan and Fleming Coward. In 1855 Mr. Coward returned to England, leaving his wife and her children in Australia; and at the summer assizes at Carlisle in that year he was convicted of an attempt to murder, and was sentenced to be transported for life, which sentence is still being carried out. After the conviction of Mr. Coward, Mr. M'Niel's executor transferred to Mrs. Coward the one-sixteenth share in the brig Congress, to which she was entitled under her father's will, and such share was registered in her name as the owner thereof. On the 21st June, 1858, Sarah Coward duly executed a will, whereby she bequeathed all her real and personal estate to her two sons, William M'Millan and Fleming Coward, to be divided equally between them, and appointed Joseph Slee

executor.

Elizabeth Nosworthy, late of Poughill, Devonshire, spinster, died on the 2nd January, 1865, leaving two testamentary papers, A. and B., both dated the 6th January, 1862. A. was a lithographed form, on the first side of a sheet of paper. By it the whole property, real and personal, was left to Martha Nosworthy, and she was appointed executrix. The name "Martha Nosworthy" was the only part written (and that by the deceased herself), except the date, which was entered in the following peculiar way:-"I have day of Jan 6th, 1862, in the set my hand, the

year of our Lord one thousand and eight hundred and 62." The word "Jan" and the figures were in the deceased's handwriting, the rest was lithographed. This paper revoked all former or other wills, and had the signatures of the deceased and two witnesses attached to the end thereof. On the second side of the sheet, and therefore at the back of A., B. was written by the deceased herself. It commenced, "This is the last will and testament of Elizabeth Nosworthy, of day of Jan 6th, 1862, Powhill, Devon, made this

in the year of our Lord eighteen hundred and 62. I hereby revoke all wills made by me heretofore. I appoint Martha Nosworthy, my niece, to be my execu tor, and direct that all my just debts and funeral expenses shall be paid as soon as conveniently may be after my decease." So much seemed to have been copied from the lithographed form on the first side. She then bequeathed to Mrs. Alfred Medland a tenement called Elwell Cottage, and she gives to her nieces Mary, Martha (the universal legatee in the litho graphed will), and Agnes Nosworthy, 251. each, and to her nephew Samuel Nosworthy and her niece Mrs. Dennington 201. each; and she divides her jewelry, plate, wardrobe, books, and pictures between her nephew and nieces.

Spinks moved the Court to grant administration with the will annexed, of the goods of the deceased, to John M'Neil, as attorney of Joseph Slee, the executor, who is now resident at Castlemaine. Notice of Miss Henrietta Sharland, in her affidavit, stated that the application has been given to her Majesty's proctor, who declines to interfere. The Court will grant the deceased, Elizabeth Nosworthy, had been for many probate of the will; it will be for after consideration years housekeeper to Mr. Thomas Melhuish, with whom what property can pass under it. [He referred to the deponent was intimately acquainted: that in Ja Jarm. Wills, c. 3, p. 35, 3rd ed.; The Countess of Port-nuary, 1862, the deponent being on a visit to Mr. Melland v. Prodgers (2 Vern. 104); Ex parte Franks (1 Moo. & Sc. 11); and In the Goods of Elizabeth Martin (2 Robert. 405).]

Sir J. P. WILDE. In the case cited, Ex parte Franks, this point was deliberately argued, although the Court only gave a certificate of its opinion, and did not deliver a formal judgment. In accordance with that opinion, I consider I am justified in holding that this woman, for testamentary purpose, must be taken to have been a feme sole, and I grant probate of her

will.

huish, the deceased had asked her and Mr. Melhuish to see her execute her will: that the testatrix, being in her own sitting room, produced from a drawer the sheet of paper which contains the documents A. and B.: that she opened the sheet of paper, and, holding it with the second and third pages wide open, said "This is my will." She then laid it upon the table, and signed her name at the end of the testamentary writ ing marked B., and the deponent and Mr. Melhuish also signed their names in the deceased's presence: that the testatrix, being old and near sighted, then asked the deponent to see if there was any other

In the Goods of ELIZABETH NOSWORTHY, Deceased. place where she (the deceased) and the witnesses

-June 27.

Two wills-Same date-On same paper-Inconsistent. The deceased, on the first side of a sheet of paper, had executed, in the presence of witnesses, a will, in which she left the whole of her property, real and personal, to A., and appointed her executrix. This will was a lithographed form, the only written parts being the name of the legatee and the date, in the handwriting of the deceased. It contained a clause of revocation. On the back of the will, and on the second side of the sheet of paper, the deceased had written a document, which she called her last will and testament, and which also contained a clause of revocation. By this she divided her property between her nieces (A. being one) and a nephew, and appointed A. executrix. This document was also duly executed. Both papers had the same date:Held, that the Court might receive evidence to shew that the deceased did not sign the lithographed form with an intention that it should operate as her will.

ought to sign: that the deponent then turned over
the sheet, and reading the lithographed attestation
clause on the first side, she told the deceased that she
and the witnesses must sign there also, which they
The deceased did not attend to the fact that
did.
there were apparently two wills upon the same sheet
of paper; nor did she make any further observation
about either one or the other. All the writing both
in A. and B. was completed by the deceased previous
to the execution of these documents.

Wambey moved for probate of both these doc ments, as together containing the will of the deceased

Sir J. P. WILDE was satisfied that paper B. was the will of the deceased, and duly executed, and he wond decree probate of it. If the parties desired to have paper A. also included in the probate, they must propound it.

22

,

COURT OF CHANCERY.

Ex parte KIMBERLEY, re KIMBERLEY.-April 29. Bankrupt-Renewed protection-Intermediate arrest of bankrupt-Jurisdiction of the Court to order release Bankruptcy Act, 1849, sect. 112.

Reed, on behalf of the detaining creditor, observed that it had been repeatedly held in cases arising under trust deeds, that the Court had no power, independently of the statute, to order the release of a debtor taken in execution. This was decided in Re Harwood (7 Law T. 171); Ex parte Smith (10 Law T. 551); and The cases in which it is declared by the first paragraph of Bailey (3 Mont. & A. 408). Upon the section it was Ex parte Johnson (Id. 848). See, further, Ex parte the 112th section of the Bankrupt Law Consolidation Act clear that it had reference-first, to the case where a of 1849, that a bankrupt "shall be free from arrest or imprisonment," are to be considered as all limited by bankrupt is not in prison or in custody at the date of the preliminary proviso, "if the bankrupt be not in bankrupt who is in prison or in custody; and, thirdly, the adjudication; secondly, to the bringing up of a prison or custody at the date of the adjudication." Hence the words "shall be free from arrest or imprison-protection from arrest. It could not be held to apply where any bankrupt has surrendered and obtained ment" will not give to any order for renewal of protec- to a case where a man had by his own neglect failed tion a retro-active operation; so as to afford a release to obtain a renewal of protection in time. As it was, from custody to a bankrupt who has been arrested since the bankrupt reaped considerable advantage, by being the expiration of a first term of protection, and before protected from all further detainers. the commencement of a second.

"It appeared that Mr. Kimberley was adjudicated a ankrupt in August, 1863. At the sitting for disharge held on the 15th December last, the bankrupt vas opposed by a single creditor. Evidence was given considerable length, and the Court held that the failure was the result of a "rash and hazardous speenlation, and also that "the bankrupt had contracted debts without reasonable or probable expectation of payment." The bankrupt's order of discharge was hereupon suspended for twelve months from that late, with protection for three months, to be renewed the usual notices.

On the 15th March the protection thus granted exred; but the bankrupt, by some oversight, omitted obtain a renewal, and he was on the 21st March rested on a ca. sa. at the suit of a creditor who had of proved.

Sargood, in reply.

LORD CHANCELLOR.-In matters of this kind it is

The Court has no inherent authority, independently of the statute, to order the release of a bankrupt whose order the duty of the Court to proceed with the utmost cirof discharge had been suspended with protection, and cho (having neglected to obtain a renewal in time) was founded (as it must be in a case of this kind) wholly cumspection, for if the authority of the Court be arrested on a ca. sa. after the expiration of his term of pro- upon the language of the statute, if I make an order tection, and before the commencement of a second term. of release, which is not warranted by this statutory This was an appeal from Mr. Commissioner Holroyd, enactment, the order of the Court may not be a proefusing an application by the bankrupt William Kim-tection to the gaoler, who may be answerable for the erley (who was formerly a solicitor, carrying on consequences of an escape. Now, this order was made usiness in Old Broad-street), for an order for release under these circumstances:-The commissioner susrom custody under the 112th section of the Bankrupt pended the order of discharge, and he at the same Aw Consolidation Act of 1849. time made an order that there should be protection for a period of three months, with power to renew the protection. Now, the immediate portion of the statute which warranted that order, is the first portion of the 112th section of the act of 1849; and, as has been pointed out, there occur words in that section which warrant the order that the commissioner has made. The words are distinct with reference to the freedom from arrest of the bankrupt under certain circumstances; for example, in coming to surrender, and after surrender during the time limited by the act for surrender, and for such further time as shall be allowed him for finishing his examination, and for such time afterwards until his certificate (for which we will read his order of discharge) be allowed, " as the Court shall, from time to time, by indorsement on the summons of such bankrupt, think fit to appoint." But upon looking at this portion of the statute, I think that the whole of these consecutive authorities, which are involved in the first member of the sentence, constituting this portion of the 112th section, are limited to the case of a bankrupt who is "not in prison or custody at the date of the adjudication;" and although the words of the statute are not very clear, as they admit of this interpretation, I shall not take upon myself to put a construction upon them at variance with the construction they have received at the hands of the learned commissioner, and also, as I am informed, of Erle, C. J., sitting in chambers. I do not think, therefore, that any protection, any order for freedom from arrest, made by the commissioner under this particular power, would have a retro-active operation, so as at once to operate for the release of a bankrupt who is in prison or is in custody under final process when such renewed order of protection was made. In the present case, the first term of protection expired on the 15th March. It was not renewed till the 24th March. The imprisonment took place on the 21st March. The bankrupt, therefore, was in prison at the time when the order for protection of the 24th March, which is relied on, was made; and his release under this particular part of the section could only be effected by holding, that the power of granting protection extends to the case of a bankrupt who

On the 14th March the learned commissioner granted
arther protection until the 5th May; but upon being
sked to make an order for the bankrupt's release
om custody under an arrest which had been ex-
cted three days previously, he refused to do so,
ying it would be better that the applicant should
ply to the Court out of which the writ issued. It
emed to him that the words "if the bankrupt be not
prison or in custody," &c., had application only to
e instance of the kind, namely, when the bankrupt
ad surrendered, and had obtained protection; and
uld not be extended beyond that limit.
Upon an application being then made to Erle, C. J.,
chambers, his Lordship refused to grant the release,
the ground of want of jurisdiction.

Sargood supported the appeal. He argued that the Yourt of Bankruptcy must be held to have power to nforce its own orders; if it granted protection, it must also be empowered to order freedom from arest. Moreover, the provisions of the 112th section xactly embraced this particular case. The bankrupt ad been adjudicated; he had surrendered; he had btained protection, and he was now in prison. [The reference to Lord Eldon's remarks in Last's case (2 Ves. &B. 374), which occurs in Plomer v. Macdonogh (1 De G. & S. 235), was referred to.]

No.550, VOL. XI., NEW SERIES.

b b

COURT OF APPEAL IN CHANCERY.

Re THE AGRICULTURAL CATTLE INSURANCE COm-
PANY.-BELHAVEN'S CASE.-April 21 and 22, and
June 15.

B.

Contributory-Compromise-Cancellation. disputed his liability to pay calls on shares in a company, and the directors agreed to accept a sum of money from him, and to release him fram liability. At a meeting of shareholders a resolution was consequently passed, that his shares should be cancelled, and this resolution was mentioned in a circular to the shareholders:- Held, that, under the circumstances, B.'s shares were cancelled, and that the compromise was valid, though he might have been originally liable.

This was an appeal from an order of the Master of the Rolls, dated the 28th March, 1865, placing the name of Lord Belhaven on the list of contributorie to the Agricultural Cattle Insurance Company. The facts of the case are fully stated in the judgment of Lord Justice Turner.

Hobhouse and J. Pearson, for Lord Belhaven, the appellant, cited Oriental v. Briggs (2 Johns. & H. 625) Selwyn and Bush, for the official manager, relied on Spackman's case (ante, p. 207); Brotherhood's case (31 Beav. 365; 8 Jur., N. S., 926); and Cookney's_case De G. & J. 170; 5 Jur., N. S., 77), and contended that the directors had exceeded their powers in making this compromise, and the notice did not state what was to be done at the meeting. (Lawes's case, 1 De G., Mac & G. 421; Bennett's case, 5 De G., Mac., & G. 284). Hobhouse, in reply.

was in prison at the time when the order was made;
and that would necessarily be, in fact, giving to the
order for protection a retro-active operation. I do not
think the words of the statute warrant any such thing.
The other words of the section which are relied upon
are these:-"Where any person who has been ad-
judged bankrupt, and has surrendered and obtained
his protection from arrest, is in prison or in custody
for debt at the time of his obtaining such protection."
The argument is, that the renewed order of the 24th
March is to be treated as an order which gave the
bankrupt protection, and that at the time of making
that order he answered the description of a person
"who had been adjudged a bankrupt, and had sur-
rendered;" and, therefore, that there is in the Court
of Bankruptcy a discretionary power to order his dis-
charge. But all these portions of the 112th section are
to be taken together as describing the different occa-
sions when the Court is authorised to give freedom
from arrest. First, where the bankrupt is not in prison,
the Court is empowered to give him freedom from ar-
rest through all stages of the bankruptcy. Secondly,
when he is in prison, and even in prison under criminal
process, it is empowered to give him a partial discharge
for the purpose of enabling him to surrender.
Thirdly, we come to that portion of the enactment
which has been last considered; namely, that by which
the Court has power to give a discharge to a person
who, having been adjudicated a bankrupt, having sur-
rendered, and having thereupon obtained protection,
has nevertheless been arrested. But it is clear that,
in the latter state of circumstances, something is still
left to be done, because the person who has been ad-
judicated bankrupt, and has surrendered and obtained June 15.-Sir J. L. KNIGHT BRUCE, L. J.-In this
protection, has many processes of the court still to go case the Master of the Rolls would, as I collect, have
through. He has particularly to go through the pro- determined otherwise than he has done-that is, would
cess of passing his final examination; and therefore, have determined in favour of the present appellant,
if the Court sees that it is proper, and for the benefit Lord Belhaven, but for the view taken by his Honor
of the other creditors, to enable the bankrupt to go of the recent decision of the Lord Chancellor in
through that stage, it is armed again with a power, in Spackman's case (ante, p. 207), which his Honor con
that state of things, of giving him freedom from ar-sidered as inconsistent with the present appellant's
rest. But then that power is limited by this condi-
tion, that it is not to extend to cases where the arrest
is made by a creditor whose debt is not barred by the
order of discharge, or where imprisonment was made
under circumstances which would prevent his obtain-
ing his order of discharge. Taking the whole section
together, therefore, I think there are no words that
would warrant the present order being held to have a
retro-active operation, and I think there are no words
which would enable the commissioner to grant the
application that has been made to him with respect to
a bankrupt who was in prison under final process
when the order of protection was made. Without
giving a final opinion upon the language of the statute,
finding that this bankrupt was in prison, and finding
that the words of the statute are not such as to enable
me to say that the discharge ought to be made, and
that the language of the act of Parliament leaves no
doubt as to the propriety of making the order, I must
decline to interpret the words as having any retro-
active operation; and I must further decline to exer-
cise the discretionary power which is given to the
Court under the latter part of the enactment; because
I think the latter part of the enactment is not in-
tended to apply, and does not apply (having regard
to the rest of the clause), to a case distinguished by
the special circumstances which are now before the
Court. I must, therefore, adhere to the order of the
commissioner, and refuse the application. The re-
spondent will have his costs to the extent of the
deposit.

Notes for reference-12 & 13 Vict. c. 106, s. 112; Archb.
Bank, 573, 11th ed.

success in the controversy before him. It seems me, however, with all deference to the Master of the Rolls, that there was not, nor is, any such inconsis tency; that the Lord Chancellor's judgment in Spack man's case proceeded mainly on suppression, conceal ment, and fraud, and that there is not any such gredient in the case before us, which, in my opinion it was, and is, possible to decide in Lord Belhaven favour without contradicting that of Spackman. Then appears to have been a bona fide dispute, bonâ fide di each side whether Lord Belhaven was right or wrong between him and the directors, as to his liability to held as a shareholder or subscriber, which they serted and he denied. He had never executed deed of settlement, though he had paid a deposit, an his name stood on the register. The dispute had bee of some years' standing, when, early in 1855, befor the middle of April, the directors agreed to accept and he agreed to pay, 501. for his complete discharge This sum, accordingly, he paid, and they received, and at a general meeting of the company held on the 29t June, 1855, a resolution upon that subject was tered into, which was thus, among other things. B was resolved-"That the arrangement with Lord Belhaven, now reported by the directors to the meeting be adopted and confirmed, and the same is here done." Matters remained on this footing until a after the time of the winding up, the order for whic was made on the 28th April, 1861, more than six years after the arrangement recognised at the meeting June, 1855. There does not appear to have been any suppression, concealment, or fraud in that arrange ment, or connected with it. It appears to have been