A bill of 1500 folios was filed in February, 1850, and the answer of 900 folios was filed in June. On motion to dismiss in January, 1851, the plaintiff desired time to amend :Held, that the delay was inexcusable, and the bill must be dismissed, unless the plaintiff filed his replication forthwith.

THIS was a motion to dismiss a bill for want of prosecution. The bill was filed on the 12th of February, 1850, and was 1500 folios in length. The answer was filed on the 12th of June, 1850, and was 900 folios in length. The plaintiff did not obtain an office copy until the 12th of July. He laid it before counsel in Michaelmas term, and obtained his opinion thereon on the 20th of January. In answer to the motion to dismiss, an affidavit was made by the plaintiff's solicitor, "that no counsel could be found to advise on the answer until the expiration of the long vacation."

Mr. Turner and Mr. C. M. Roupell, in support of the motion.

Mr. H. Stevens, contrà, stated, that the delay had been unavoidable, and that it was necessary to have an opportunity of amending the bill. He asked for time for that purpose.

The MASTER OF THE ROLLS refused further time, saying, that, after this inexcusable delay, the bill must be dismissed unless the plaintiff filed his replication forthwith.2

Where a matter is pressing, the accountant-general will grant his direction to pay money into the bank instanter.

AN order was made on a party to pay a sum of money into court. A delay took place in drawing up the order, and immediately before the expiration of the time, the defendant avoided service of the order.

113 Beavan, 112.

2 In Collett v. Preston, post, the Lord Chancellor, on appeal from the Rolls, moderated the strictness which the Master of the Rolls had recently applied to these cases. 3 13 Beavan, 113.

Payne v. Little.

A motion being made for substituted service on the defendant, he admitted that he had purposely avoided service, because (as he said) he could not have complied with the order, inasmuch as the direction from the accountant-general to pay the money into the bank could not, by the practice of his office, be obtained, until the second day after bespeaking it.

Mr. Teed and Mr. C. Webster, in support of the motion.

Mr. W. T. S. Daniel, for the defendant.

The MASTER OF THE ROLLS thought it necessary to cause inquiries to be made as to the practice of the accountant-general's office, when it was ascertained, that although the ordinary rule was as stated, see 1 Smith's Pr. pp. 812, 845, (3d ed.), yet that in pressing cases the direction might be obtained instanter.1

PAYNE V. LITTLE.

February 25, 1851.

Next Friend of Feme Covert - Practice.

A defendant cannot act as next friend of a plaintiff feme covert.

THIS bill was filed by Anne P. Payne, a feme covert, by Charles Henry Payne the younger, her next friend.

By amendment, Charles H. Payne, who was interested, was made a defendant, but he was still retained as next friend.

A motion was now made, on behalf of one of the defendants, that the proceedings might be stayed until the plaintiff should have amended the bill, by substituting a new next friend. An affidavit filed in support stated, that the interest of the plaintiff and her next friend were conflicting.

Mr. Lloyd, Mr. Bagshawe, and Mr. T. Clarke in support of the motion, referred to an anonymous case, 11 Jurist, 258; in which the Vice-Chancellor of England had declined to allow a defendant to be next friend of an infant plaintiff.

Mr. Turner and Mr. Selwyn, contrà, argued, that this was not a case like the one cited, of the next friend of an infant plaintiff, who had the conduct of the suit; for here, the next friend of the married

1 So, in the secretary's office at the Rolls, the petition is usually left one day, and the order delivered the next; but in urgent cases, the order may be obtained immediately.

Egerton v. Earl Brownlow.

woman had no duty to perform, and was simply under a liability for the costs. They said it might be difficult to find another person willing to undertake that responsibility.

The MASTER OF THE ROLLS. I have no doubt that the proceeding is irregular, and the order must be made.

EGERTON V. EARL BROWNLOW.1

June 28, 30; July 2, 12; August 30, 1851.

Will-Condition- Prerogative - Public Policy - Proviso as to acquiring a Title.

John William, late Earl of Bridgwater, by his will gave all his estates to trustees upon trust to convey the same to certain uses therein specified, with remainder, after the determination of the estates thereby created, to the use of Lord Alford for ninety-nine years, if he should so long live, remainder to trustees to preserve contingent remainders; remainder to the use of the heirs male of his body, with remainder to the use of Charles Cust in similar terms; with divers remainders over, and an ultimate remainder to his own right heirs forever: and it was provided that if Lord Alford should die without having acquired the title and dignity of Duke or Marquis of Bridgwater, to him and the heirs male of his body, then and in such case the use and estate thereby limited to the heirs male of his body should cease and be void: and that if the Earldom of Brownlow should descend and come to him, and he should not acquire the title and dignity of Duke or Marquis of Bridgwater, to him and the heirs male of his body before the end of five years next after he should become Lord Brownlow, then the several uses and estates directed to be limited to the said Lord Alford, and to the heirs male of his body should thenceforth cease and be void, and the estates should be enjoyed according to the subsequent uses and limitations. The will also contained similar provisos as to the other estates limited to the persons in remainder. Upon failure of the previous estates, Lord Alford became tenant for life, but died without acquiring the title of Duke or Marquis of Bridgwater, or the Earldom of Brownlow. His eldest son filed this bill, claiming to be equitable tenant in tail of the

estates:

Held, upon demurrer to the bill, that the above proviso was a valid proviso, and the plaintiff was not entitled to the estates in possession; but as he was the heir of the testator, and was therefore entitled under the general prayer for relief to call upon the court to see that a proper settlement was made in case the persons in remainder should not fulfil the object of the testator, the demurrer must be overruled.

THIS suit was instituted for the purpose of having it declared who was the person entitled, under the will of the late Duke of Bridgwater, to the large estates of that nobleman, said to amount to about 70,000l. per annum. The facts of the case were these: John William, Earl of Bridgwater, by his will, dated the 31st of March, 1823, after giving to his wife an annuity of 12,000l. per annum, and various other large legacies, gave and devised all his honors, manors, lands, tithes, rents, and hereditaments whatsoever in the several counties of Middlesex, Hertford, Buckingham, Bedford, Northampton, Oxford, Salop, Chester, Flint, York, and Durham, and elsewhere, and all other his real estates whatsoever, to the use of the Right Hon. John

120 Law J. Rep. (N s.) Chanc. 645; 1 Simons, N. s. 464.

Egerton v. Earl Brownlow.

Earl Brownlow, the Right Hon. Edward Herbert, Lord Viscount Clive, and Sir Charles Long, their heirs and assigns forever, upon trust to convey his estates in the following manner: to the use of the heirs of the body of the testator, with remainder to the use of the said trustees, their executors, administrators, and assigns, for the term of ninety years; and upon the expiration of that term, to the use of the Right Hon. James Walter Earl of Verulam, and the Right Hon. John Thomas Viscount Sydney, and their heirs, during the life of his brother the Hon. and Rev. Francis Henry Egerton, in trust to preserve contingent remainders, with remainder to the use of the first or only son of the body of his said brother, for the term of ninety-nine years, if such first or only son should so long live, with remainder to the first and other sons of the body of such first or only son of his brother in tail male, with remainder to the use of the wife of the testator for life, and after her decease to the use of Dame Amelia Long for ninety-nine years, if she should so long live, remainder to the use of the heirs male of her body, remainder to the use of the Right Hon. John Hume Cust, commonly called Lord Viscount Alford, the eldest son of John Earl Brownlow, by the testator's niece, Sophia Lady Brownlow, for ninety-nine years, if the said Lord Alford should so long live; remainder to trustees to preserve contingent remainders; remainder to the use of the heirs male of his body; with remainder, in default of such issue to the use of the Hon. Charles Henry Cust for ninety-nine years if he should so long live; remainder to trustees during the life of the said Charles Henry Cust, to preserve contingent remainders; remainder to the use of the heirs male of his body, subject nevertheless, as to all the said trusts, to the provisos thereinafter contained.

The will then contained various other limitations over, with an ultimate limitation to the testator's own rights and heirs forever; and it was expressly declared that the estates limited to Lord Alford and the Hon. Charles Henry Cust should not vest in them as estates tail, but that the vesting in their heirs male should not take place until after their deaths.

The will also contained a proviso that any person taking any estate under the will should take the name and arms of Egerton; and then followed a proviso in these words:-"Provided always, and I declare my will to be that if the said John Hume Cust, Lord Alford, shall die without having acquired the title and dignity of Duke or Marquis of Bridgwater, to him and the heirs male of his body, then and in such case the use and estate herein before directed to be limited to the heirs male of his body shall cease and be absolutely void; and that if the Earldom of Brownlow shall descend and come to him, and he shall not acquire the title and dignity of Duke or Marquis of Bridgwater, to him and the heirs male of his body, before the end of five years next after he shall become Earl Brownlow, then and in such case the several uses and estates hereinbefore directed to be limited to the said John Hume Lord Alford, and to trustees during his life, for preserving contingent remainders, and to the heirs male of his body, shall thenceforth cease and be absolutely void, and that my said here

Egerton v. Earl Brownlow.

ditaments and real estates hereinbefore devised shall thereupon go over and be enjoyed according to the subsequent uses and limitations declared and directed by this my will, as if the said John Hume Lord Viscount Alford were actually dead without issue male."

The will then contained a similar proviso with regard to the limitation to the Hon. Charles Henry Cust. The testator made a codicil to his will, and therein recommended the said Lord Alford, in case he should become Marquis or Duke of Bridgwater, so that the estates should become permanently settled on him, to settle them upon his brother, it being understood that this was not a peremptory obligation, as otherwise his refusal might tend to defeat the object of the testator, of uniting the estates to the title of Marquis or Duke of Bridgwater, if it should be the pleasure of the crown to create such title, so as to come to the heirs male of the said Lord Brownlow and his issue male.

The testator made other codicils not affecting the present question, and died without issue. His widow died in 1849. The brother of the testator, the Hon. and Rev. Francis Henry Egerton, became Earl of Bridgwater, but died before the widow of the testator. The sister of the testator, Dame Amelia Long, also died during the life of the testator's widow, leaving two daughters; one became Lady Farnborough and the other, Sophia, had married Lord Brownlow. At the date of the will Lady Brownlow was dead, but had left two sons— the said Lord Alford and the Hon. Mr. Cust, who afterwards took the name of Egerton, and was the first defendant to this suit. Upon the death of the previous tenants for life named in the will, Lord Alford came into possession of the estates, and continued in possession until his death, which took place in the year 1850. Lord Alford died without having acquired the title of Duke or Marquis of Bridgwater, and without having become Earl Brownlow. This bill was filed by the eldest son of Lord Alford, claiming to be equitable tenant in tail of the testator's estates. The claim was resisted by the Hon. Mr. Egerton and other parties in remainder, who put in general demurrers to the bill.

Mr. J. Russell and Mr. Giffard, in support of the demurrer, contended that the plaintiff's interest under the will had entirely failed. The testator had expressly said that if Lord Alford died without having acquired the title of Marquis or Duke of Bridgwater, then the use and estate limited to the heirs male of his body should cease and be absolutely void. The condition as to acquiring the title was a condition precedent, and that condition not having been fulfilled, the limitation to his heirs male became void. The testator's object was that the estates should be enjoyed by a person having the title of Duke or Marquis of Bridgwater, and that they should go to his nearest of blood, provided such person acquired the title; but if not, then his intention was that more remote relations should have the property. This was a very natural desire, and the condition he had inserted in his will was perfectly valid. It was not criminal, and it was not contrary to public policy, and there was nothing to