Pleas has held that the creditor could maintain his action for the full amount, and there is nothing to induce us in this case to restrain him. The only excuse given by the debtor is that he had not money with which to pay this instalment; but that, under the circumstances, is not a sufficient excuse; and it was not until the action was brought that the composition was tendered. The order of the Registrar must be discharged. The creditors will have their costs below, but not of the appeal. Solicitor for the Debtor: Mr. J. T. Moss. L. JJ. 1872 In re HATTON. In re WARD'S TRUSTS. Failure of Purpose of Gift-Settlement-Advancement—Abolition of Purchase of Commissions in Army-Regulation of Forces Act, 1871 (34 & 35 Vict. c. 86). By a separation deed a sum of money was directed to be held by trustees upon trust for the wife for life, and after her death, as to four-sixth parts thereof, for F. W., one of the children of the marriage, who was then an officer in the army, during his life, and after his death for his children. And it was declared that it should be lawful for the trustees, if in their discretion they should think fit, to apply any portion of the fund, not exceeding £2000, in or towards effecting the promotion of F. W. in the army. The trustees applied £850 in the way pointed out by the deed, but in consequence of the abolition of purchase of commissions in the army, under the Royal Warrant of the 20th of July, 1871, no further sum could be applied for the same purpose : Held, that the purpose for which the power was given to the trustees having failed, the residue of the sum of £2000 could not be raised and applied in any manner for the benefit of F. W. Palmer v. Flower (1) distinguished. THIS Petition was heard in the first instance by the Lords On the 24th of March, 1869, a deed of separation was executed VOL. VII. 1 L. JJ. 1872 July 27. L. JJ. 1872 In re WARD'S TRUSTS. possessed of a sum of £10,969, which had been paid to them, upon trust to invest the same and to pay the income thereof to Mrs. Ward during her life for her separate use, and after her death, as to four-sixths of the trust fund, upon trust to pay the income to Frederick Ward the younger for his life, and after his death upon trust for the children of Frederick Ward the younger as he should by deed or will appoint, and in default of appointment upon trust for the children who, being sons, should attain twenty-one, or, being daughters, should attain that age or marry, in equal shares ; and in default of children, for his sisters Caroline Nott and Frances Ward and their respective children as therein mentioned. And the indenture contained a proviso that it should be lawful for the trustees or trustee for the time being, if he or they should in their or his discretion see fit (and they or he should be under no fiduciary obligation as to the exercise of such discretion), at any time or times while the said Frederick Ward the younger should continue to hold a commission in Her Majesty's army, by and out of the said four-sixth parts, to raise any sum or sums not exceeding in the whole the sum of £2000, and to apply such sum or sums in or towards the purchase of or effecting his promotion in Her Majesty's army; but it was provided that no sum should, during the life of Mrs. Ward, be raised for that purpose without her consent in writing, and that in that case Frederick Ward the younger should by his bond secure her an annual sum during her life equal to £5 per cent. on the sum so raised. In July, 1869, the trustees applied £850, part of the sum of £10,969, with the consent of Mrs. Ward, in effecting the promotion of Frederick Ward the younger to the rank of lieutenant in the army, and he executed a bond as required by the separation deed. By a royal warrant of the 20th of July, 1871, and by the Regulation of the Forces Act, 1871 (34 & 35 Vict. c. 86), the purchase of commissions in the army was abolished, and it therefore became impossible to apply any further portion of the sum of £2000 in that way. The trustees accordingly presented a petition, under the 22 & 23 Vict. c. 35, asking for the advice and direction of the Court whether they might safely pay the sum of £1150, being the balance of the sum of £2000, to Frederick Ward the younger, or whether they might exercise the power of advancement in any other way for his benefit. The Petition was presented in the Court of the Master of the Rolls, but, at his request, was heard by the Lords Justices. All the members of the family who were adult consented to the application. Mr. Waller, for the Petitioners, referred to Palmer v. Flower (1), where Vice-Chancellor Bacon directed a sum of £6500, which trustees were empowered by a testator to raise for procuring the promotion of his nephew in the army, to be paid to him absolutely, under similar circumstances to those under which the present difficulty had arisen. The only distinction between that case and the present was that this case arose on a deed inter vivos instead of a will. But as it was a settlement for the benefit of the family, and F. Ward the younger was one of the objects of the settlor's bounty, for whom a provision was intended, the same principle would apply. It was a circumstance to be considered that he was in the army at the time when the deed was executed; if he had not been the provision for his advancement would probably have been more general. He also referred to Leche v. Lord_【Kilmorey (2), Barlow v. Grant (3), and Cope v. Wilmot (4). Mr. S. Dickinson, for Mr. F. Ward the younger and his mother and sisters. Mr. Streeten, for Mr. F. Ward the elder. Mr. Bunting, for the infant children of Caroline Nott, offered no opposition. SIR W. M. JAMES, L.J.: This is not an absolute gift, it is only a discretionary power to advance money for the benefit of the son in one particular direction. I think the case is not governed by Palmer v. Flower. That was a case of a will, and the Vice-Chancellor proceeded on the expressed intention of "making a provision for the advancement" of his nephew. Here there is a deed between parties, and we must (1) Law Rep. 13 Eq. 250. (3) 1 Vern. 255. (2) T. & R. 207. (4) 1 Coll. 396, n. L. JJ. 1872 In re WARD'S TRUSTS. L. JJ. 1872 In re WARD'S TRUSTS. be guided by the express words. If the way of applying the money, which was legal at the date of the deed, had continued to be legal, it might have been applied in that way. As the law now stands Mr. Ward gets his promotion without the payment of money, and the fund cannot be so applied. SIR G. MELLISH, L.J., concurred. Solicitors: Messrs. Newbon & Co.; Mr. J. J. Darley. L. JJ. 1872 July 30. Ex parte KIVETON COAL COMPANY. Bankruptcy-Practice-Appeal from part of an Order-Liberty to appeal after When an appeal is brought from part of an order in bankruptcy the whole case is not open to the Respondent; but if he wishes to complain of another part of the order he must present a cross-appeal. Where the Appellant had not given notice of appeal until the last day allowed for the purpose, the Court gave the Respondent leave to present a cross-appeal, though the time for appealing had expired. THIS was an appeal by the Kiveton Coal Company from part of an order of Mr. Registrar Hazlitt sitting for the Chief Judge. On the 6th of September, 1871, Phillips presented a petition for liquidation of his affairs by arrangement. On the 28th of May, 1872, the trustees under the liquidation gave notice of motion to set aside, as fraudulent and void, a sale made by Phillips on the 24th of August, 1871, of twenty-seven coal waggons to the Kiveton Coal Company. On the 26th of June, 1872, Mr. Registrar Hazlitt made an order declaring that the sale of the waggons was not fraudulent and void, but that the company had become the true owners of the same; but the order went on to declare that such of the waggons as had not been taken possession of by the company before the commencement of the liquidation were, at the date of such commencement, in the possession, order, or disposition of Phillips, by the consent and permission of the company the true owners thereof; and to direct that the same should therefore be delivered up to the trustees. On the 17th of July the company gave the trustees notice of appeal from so much of the order as directed the waggons which had not been taken possession of by the company before the commencement of the liquidation to be delivered up to the trustees. Mr. Roxburgh, Q.C., for the Appellants. The Hon. A. Thesiger (Mr. J. Linklater with him), for the trustees, claimed to open the whole case, and to have the sale altogether set aside. He cited Sherwin v. Shakspear (1); Watts v. Symes (2). THEIR LORDSHIPS held that the cases cited were inapplicable, as they related to re-hearings by way of appeal: whereas the present proceeding was strictly an appeal, and the Respondent therefore could not open the whole case without a cross-appeal. Mr. Thesiger then asked for leave to present a cross-appeal, though the twenty-one days allowed by rule 143 of the Bankruptcy Rules, 1870, had passed. THEIR LORDSHIPS considered that they had jurisdiction to grant such leave, and that it was proper to grant it in the present case, as the company had not given notice of appeal till the last day. Their Lordships thought it reasonable that a party who might be willing to acquiesce in an order as it stood should have an opportunity of contending that it ought to be varied in his favour if the other party appeals from it. Their Lordships accordingly gave the Respondent leave to appeal, and adjourned the hearing of the present appeal, the Respondents paying the costs of the day. Solicitors: Messrs. Linklater & Co.; Mr. J. W. Marsh. (1) 5 D. M. & G. 517, 523. (2) 1 D. M. & G. 240. L. JJ. 1872 Ex parte KIVETON COAL CO. In re PHILLIPS. |