for appearance was fourteen days from the service of the bill, and the time allowed for "pleading, answering, or demurring," was six weeks from the service of the interrogatories. The defendants were served with the bill and inter rogatories on the 3rd of October, and the six weeks from that day expired on the 14th of November. The defendants, however, did not enter any appearance until the 20th of November, on which day they also filed a demurrer to the whole bill. Baggallay, Q. C., and E. K. Karslake, for the plaintiffs, contended that the order which had been made fixed the time for demurring alone, as well as the time for pleading or answering. Consolidated Order X., rule 7, provided that the order should fix the time for pleading, answering, or demurring, and that had been done in this case. Cotton (Hobhouse, Q. C., with him), for the defenants, said that it had been decided that Consolidated Order X., rule 7, did not apply to demurring alone, the time for which was regulated by Consolidated Order XXXVII., rule 3, Blenkinsopp v. Blenkinsopp, 8 Beav. 612; Brown v. Stanton, 7 Beav. 582. A. G. Marten, for the defendant Rogerson, objected that an undertaking for damages by a limited company was not sufficient. THE MASTER OF THE ROLLS said, that he had overlooked the point when he granted the interim order, and he could not continue the order unless some responsible person gave an undertaking as to damages. The case was analogous to that of a plaintiff residing abroad; when he always required an undertaking from some person in this country. In some instances the undertaking had been given by the agent of the plaintiff. The plaintiffs did not procure the undertaking required, and the interim order was accordingly not continued. The plaintiffs' counsel saved the motion until A defendant could not obtain further time for the next seal. demurring alone. E. K. Karslake, in reply, argued that Consolidated Order XXXVII., rule 3, only applied to cases where the defendant was within the jurisdiction. THE MASTER OF THE ROLLS said, that the third rule of the 37th Consolidated Order distinctly provided that a defendant might demur within twelve days from his appearance. This order applied whether an answer was required or not, and whether the defendant was within the jurisdiction or not, and in cases where an answer was required, and the defendant was out of the jurisdiction, it so far overruled the other general order above referred to as to limit its provisions to pleading, answering, or demurring, not demurring alone. Other wise the time allowed to a defendant would depend upon the accident whether the plaintiff required him to answer or not. In the latter case he would have only twelve days, in the former six weeks. This was the sense in which Lord Langdale understood those orders. The motion must be refused with costs. Master of the Rolls. LEAK V. MACDOWALL. 5 DEC. 1863. Loss suffered by Partnership-Legacy in Compensation-"Representatives." A testator, in 1841, after stating that, in 1793, Messrs. P. & H., bankers, had lost a certain sum by him, directed his executors to pay this sum, with interest from 1793, to such of the representatives of Messrs. P. & H., then both dead, as might be alive at his death: Held, that this legacy belonged, not to the present representative of the banking firm, but to the executors of P. & H., the partners in 1793, as part of their respective personal estates, and was divisible equally between the estates of the two partners, notwithstanding that their shares in the business had been unequal. This was a petition for the payment to the petitioner of a sum of 7117. 17s., which had been carried to a separate account, to answer the legacy of 200 guineas mentioned below. The will of John Merritt, dated the 10th of October, 1841, contained the following bequest : "At the beginning of the year 1793, when I had some business with Messrs. Pease & Harrison, bankers, of Hull, a transaction took place by which those gentlemen were losers to the amount of about 200 guineas. It is my will and bequest that my executors should, as soon as conveniently may be after my decease, pay unto such of the representatives of the said Messrs. Pease & Harrison, now both dead, as may then be alive, the said sum of 200 guineas, with interest for the same at the rate of 47. per cent. from the 1st of January, 1793, to the time when the money is paid." For some years previously to August, 1793, Joseph Robinson Pease and Thomas Harrison had carried on the business of bankers in co-partnership at Hull, Pease having two-thirds, and Harrison one-third of the business. By a deed, dated the 5th of August, 1793, Harrison transferred his share in the business, including his share in all debts owing to the firm, to Robert Copeland Pease. two persons (Pease and Harrison) who had been kind to him. As they were dead he wished to make the loss good to their representatives. Mr. Bevir's second contention was only the same question transformed. One partner had two-thirds, and the other one-third of the business; but the testator did not give the legacy to their representatives in proportion to their shares in the business. To hold that the legacy was to be divided otherwise than in moieties would be making a new will for the testator.* Selwyn, Q.C., referred to Re Henderson, 28 Beav. 656, different The whole of the business, and the right to all debts owing to the firm of Pease & Harrison, subse-as settling that representatives meant executors, and quently became vested in Joseph Robinson Pease, that the executors only took as part of their testator's before his death; and, under his will and by virtue personal estate. The expression, "such of the repreof an assignment from his executors, in 1812 the peti- sentatives as might then be alive," was very tioner became absolutely entitled to the business, and from a direction to divide into equal shares, as in King v. Cleaveland, 26 Beav. 26. to the rest of Joseph Robinson Pease's personal estate. It was admitted, for the purposes of the present case, that the petitioner now carried on the same business, and that it had been continuously carried on from 1793 until the present time. THE MASTER OF THE ROLLS concurred in that view. Note.*-See, however, Philips v. Philips, 3 Hare, 281. Harrison died in 1804, and his estate was repre- Master of the Rolls. } sented by the executors of his surviving executor. Bevir, for the petitioner, contended, 1st. That the petitioner, as the present representative of the firm of Messrs. Pease & Harrison, and the person in whom the right to the assets of that firm was now vested, was entitled to the whole of the 7117. 17s. It was a debt repaid to the firm, and the circumstance that it was repaid from a sense of honour, and not under any legal obligation, was immaterial. 2nd. That if the testator must be taken to have intended to benefit the two partners personally, and not merely to recoup the business; yet the petitioner, as the representative of Pease, who had two-thirds of the business, was entitled to two-thirds of the 7117. 17s. It was not so much mere bounty as restoration. Selwyn, Q.C., and Jenkinson, for Harrison's representatives, were not called upon. THE MASTER OF THE ROLLS said, that there might be some question as to the meaning to be given to the word representatives in the present case; but he had no doubt upon the points contended for by Mr. Bevir. If the testator had intended the legacy for the banking firm he would have mentioned it, as it was at that time in existence. Instead of this he gave the legacy to the representatives of two individuals. It was clearly not his intention to give a legacy to an abstraction, such as the person which happened to be carrying on a particular business, merely because, fifty years before, the firm, which was then carrying on the same business, had suffered a loss through him. It did not appear that the transaction created a debt from him to the firm; but, assuming that it did, he repaid it as a legacy, not as a debt; his motive being gratitude to 8 DEC. 1863. MONTAGU . EARL OF SANDWICH. Held, that her general residuary personal estate (including railway stock), passed under the gist of "the residue of money." The Countess Dowager of Sandwich, by her will dated in 1861, left everything of which she died pos sessed to the defendants (whom she also appointed executors), in trust for the purposes following. Then followed a number of pecuniary and specific legacies; and after several specific bequests of jewellery and other things, the will continued thus :-"Should any money remain after paying these bequests, I leave 50%. to each of my two footmen" C and D, "should they be in my service at the time of my death. The residue of money if any, I leave to my grandson Oliver Montagu (the plaintiff). . . . I leave my cabinet and its contents to my grandson Hinchingbrook, as a souvenir," with certain small gifts of money for the purposes therein mentioned. The present suit was instituted to obtain the opinion of the Court on the point (among others), whether money invested on mortgage, stock of the London and North Western Railway Company, and rents due to the testatrix at the time of her decease would pass under the words "the residue of money." Baggallay, Q.C., and Schomberg, for the plaintiff as auction by order of the Court, and his assignees refused residuary legatee cited, to complete the purchase :— Rogers v. Thomas, 2 Keen, 8; Selwyn, Q.C., and H. T. Salmon, for the next of kin, contended that the word "money" was always to be construed strictly, unless, as in the cases cited for the plaintiff, a charge of debts, or some other expression showed an intention of treating all the personalty as money, when the word "money" would pass the general residuary personal estate. Gosdon v. Dotterill, 1 M. & R. 56, were authorities to show that a bequest of money, or "the rest of the money," did not include stock. Southgate, Q.C., and T. H. Earle, for other parties, were not called upon. THE MASTER OF THE ROLLS said, that ordinarily the proper meaning of the word "money" was not to be extended, and that the burden of proof lay on the person who wished to extend it. But in the present case the testatrix professed to dispose of all her property: she gave "everything of which she died possessed" to her executors for certain specified purposes. There was no intestacy as to any part of the property. The Lord Justice Turner had put the case most clearly in Lowe v. Thomas (loc. cit.), that if a person gave all his money to A, and then certain chattels to B, "all his money" could not mean all the personalty, and must therefore be restricted to its proper meaning; but if the order of the bequests were reversed, "all the money" would mean all the personalty not already bequeathed. So in the present case, after making several specific bequests of jewellery, the testatrix proceeded: "Should any money remain after paying these bequests"—i. e. after paying a certain number of specific bequests of jewels which she treated as money -"I leave the residue of money (if any) to my grandson." It was true that a specific bequest of her cabinet followed, but this could not control the intention of giving all her property. The specific legacies of jewellery were treated as money, and the general intention of the will was to dispose of everything. His Honour was therefore of opinion that the general residuary personal estate passed under the gift of "the residue of money." Held, that the assignees were not entitled to the deposit which had been paid by the bankrupt on signing the agreement, though the conditions of sale did not stipulate for the forfeiture of the deposit in the event of the purchaser making default. Under an order made in this suit, certain houses were put up for sale by auction in lots, and at such sale Mr. Dion Boucicault became the purchaser of certain of the lots, and thereupon signed an agreement to complete the purchase, and paid a deposit of 101. per cent. on the purchase-money, in accordance with the conditions of sale. The 15th condition of sale was as follows: "If any purchaser shall not pay his purchase-money at the time above-mentioned, or at any other time which may be named in any order for that purpose, and in all other respects perform these conditions, an order may be made by the said Judge at Chambers for the resale of the premises purchased by such purchaser, and for payment by him of the deficiency, if any, in the price which may be obtained upon such resale, and of all costs and expenses occasioned by such default.” The conditions did not stipulate that in case of default being made by the purchaser, the deposit should be forfeited. After signing the contract, Mr. Boucicault became bankrupt, and his assignees elected not to completethe purchase, whereupon the auctioneer paid the deposit into Court. A motion was now made in the suit on behalf of the vendors, that the premises might be resold, and the deposit forfeited to them. Bacon, Q. C., and Pemberton, for the vendors, argued that the deposit of a purchaser who refuses to complete his purchase is forfeited, and asked for a declaration to that effect. They cited, Sugd. V. & P. 40, 41 (14th ed.); Lethbridge v. Kirkman, 25 L. J. (N. s.) 89; Malins, Q.C., and Swanston, for the assignees, contended that a vendor was entitled to protect himself against the risk of the purchaser making default in two ways, by stipulating both for the forfeiture of the deposit, and for the resale of the property; but that, in the absence of express stipulation, he could not proceed in both ways, and that where either 'stipulation was expressed, the other could not be implied. In the present case the vendors had provided for a resale, but had not provided for the forfeiture of the deposit, and they contended that pending a resale the deposit would stand as a security for any possible loss, and that it ought to be dealt with according to the result of the resale. They distinguished the present case from those cited on the ground that in the latter cases there was no provision for making good any deficiency upon a resale, and cited, Palmer v. Temple, 9 Ad. & E. 508. Osler appeared for a mortgagee. HIS HONOUR, in giving judgment, said that the question had arisen through the bankruptcy of the purchaser, whereby a new party had been introduced, viz., the bankrupt's assignees, to whom the purchaser's rights had been transferred, who could complete the purchase or not as they liked, and who had elected not to complete it. His Honour thought that the 15th condition of sale was not applicable to the case of a default arising from the bankruptcy of the purchaser, and that the provi sions for a resale contained in that condition had reference only to default arising from some other cause. It was clear that default had been made on the part of the purchaser, and it was hard to see how the purchaser by such default could acquire any right to recover that which had been deposited expressly as a security against such default. His Honour, after referring to the cases cited, remarked that in the present case the sale had been directed by the Court, and that the Court which had exacted the payment of the deposit, had, by the possession of such deposit, a large power of dealing with the rights of the persons who claimed the Under the circumstances, however, he thought the proper course would be to determine only that the assignees had no right to the deposit. same. Pensions of Indian Officers-Assignment47 Geo. 3, Sess. 2, c. 25, s. 4. Where an officer, formerly in the service of the East India Company, but since 1858 in Her Majesty's service, had retired on his pay, with the addition of a pension granted under an order made by the Secretary of State for India in council: Held, that the pay and pension did not come within 47 Geo. 3, Sess. 2, c. 25, s. 4, so that an assignment of them for the purpose of securing certain payments was valid. The defendant, Colonel Cooper, was formerly an officer in the service of the East India Company, and became, under the Act of 1858 (20 & 21 Vict. c. 106), an officer in Her Majesty's service. On the 31st of December, 1861, he retired on the pay of a colonel, (his commission as such being then given him) viz., a pension, 4507. per annum, and an annuity of 2007. a year under an order made by the Secretary of State for India in council, and published in the "Gazette" for the 12th of August, 1857, which directed that annuities at the rates there mentioned should be offered on retirement to the lieutenantcolonels and majors as they stand regimentally in the cavalry and infantry of the three presidencies, in addition to the pensions to which they may be entitled under the regulations of the service." On the 30th of April, 1862, Colonel Cooper, being indebted to Major Master in the sum of 2,8561. 8s. 5d., a judgment for which sum had been obtained, assigned the annual sum of 1007., part of his pension of 4507. a year, and of the annuity of 2001. for a attorney to receive such annual sum of 100l. to secure period of eleven years, and appointed Major Master his the payment of quarterly instalments of 251. Notice of the assignment was served on the Secretary Under-Secretary, that assignments of pensions were of State for India, to which a reply was sent by the not recognised by that department, but that these pensions were paid either to the officer to whom they were granted, or to their duly constituted attorneys. instalment of 251. due in February, 1863, the plaintiff, Default having been made in the payment of the who was the executor of Major Master, not being able to obtain payment from the Secretary of State of the pension or the annuity, filed the bill for the purpose became bankrupt, and enforcing his security. Colonel Cooper afterwards his assignee was made a defendant. The plaintiff obtained an injuction re straining Colonel Cooper from receiving his pension and annuity, or any part of it. of The defendant, Colonel Cooper, now moved to dissolve this injunction. Roxburgh, for Colonel Cooper, contended that the assignment made to the plaintiff came within the provisions of 47 Geo. 3, Sess. 2, c. 25, s. 4, and was therefore null and void, and that consequently the plaintiff had no equity to support his claim upon the pension. He argued that Colonel Cooper, being her Majesty's officer, and the pensions in question having been granted by her Majesty, there was no difference between them and the pensions referred to in the Act of 47 Geo. 3. [The Vice-Chancellor asked, whether Colonel Cooper's pensions were not payable out of the Indian revenues, and not out of any funds appropriated by votes of Parliament.] The funds out of which the pensions might have to be paid, could not affect the question, as it was granted by the Crown, and all revenues, whether Indian or other wise, were the revenues of the Crown. He cited, in the course of his argument, 46 Geo. 3, c. 69, s. 7; 21 & 22 Vict. c. 106, ss. 39, 43, 56, 58; 24 & 25 Vict. c. 134, s. 134. 12 DEC. 1863.] Malins, Q.C., and Bagshawe, appeared for the plaintiff, but were not called upon. H. Stevens, for the other defendants, who were incumbrancers under an assignment similar to that of the plaintiff and subsequent to it. STUART, V.-C., said, that the question was, whether the present case was within the enactments of the two statutes passed in the 46th and 47th years of Geo. 3, which entirely annulled all assignment of the pensions there mentioned. Those enactments were founded upon a principle of public policy, that the grant of pensions was for the purpose of retaining in the service of the Crown those persons who had previously been in that service, but had ceased to be actively engaged therein. That principle was held in such high estimation, that, at Common Law, assignments of the half pay of officers were invalid (see Flarty v. Odlum, 3 T. R. 681, and Lidderdale v. Duke of Montrose, 4 T. R. 248). If he had found any ground for so construing those enactments, and carrying that principle of public policy so far, as to reach the present case, he should have hesitated long before granting the injunction which he was now asked to dissolve, or sanctioning in any manner an assignment by an officer of his pension. But the pay and pension which Colonel Cooper claimed, were of a kind to which, he considered, the two statutes of Geo. 3, did not apply. They were not granted by the Queen, and were not paid through the Paymaster-General, nor under the control of Parliament, but were granted by the Indian Government, and were paid out of the Indian reveBy the Act for the Better Government of India passed in 1858, all the revenues of the East India Company were taken from the control of that defunct company, and vested in the Crown, for the purpose of the Government, not of this country or the empire generally, but specially of India. application of those funds was not regulated by Parliament, there being only a statement laid before Parliament of the mode in which the revenues had Officers in the Indian army held, been applied. indeed, her Majesty's Commissions; that was for the purpose of the proper control of the army, but they were not paid by the Queen in that sense in which officers of the British army were paid; viz., out of a Parliamentary grant specially appropriated for that purpose. His Honour inferred, from the absence of any special enactment on the point, that it was not considered necessary or proper that the principle of public policy referred to should apply to officers deriving their pensions from the Government of India. The motion, therefore, must be refused, the costs being costs in the cause. nues. The Gift of Chattels-Heirloom. 189 A gift of chattels accompanied by a letter containing a description of them, with the following words added thereto: "N. B. This necklace is to be considered as an heirloom in the family, and is to be left to the eldest son and his heirs (after death of his mother), as long as the family shall continue," was held to be only a conditional gift, and the executor of the donec was ordered to deliver up the article in question to the person entitled to heirlooms. In 1817, J. Seale sent to his son J. H. Seale (afterwards Sir J. H. Seale) a box containing certain articles of plate and jewellery, and at the same time sent a letter in which, after mentioning that the box "It contains the following articles to be approhad been dispatched, he added, "Two handsome embossed priated as hereinafter-mentioned :bowls, old plate, "A casket of diamonds in a necklace, with ornaments, and a medal of the Princess Charlotte, a lock of her hair, undoubted, "J. H. Seale, Esq." "Mrs. Seale." "N. B. This necklace is to be considered as an heirloom in the family, and is to be left to the eldest son and his heirs (after death of his mother), as long as the family shall continue." Lady Seale continued in possession of the diamonds until the time of her death in 1862. Sir J. H. Seale died in 1844, leaving the plaintiff, his eldest son, who succeeded to the family estates. The plaintiff was also the personal representative of his father and grandfather. The defendants were the executors appointed by Lady Seale's will, of whom E. T. Heale, had alone proved the will, but Hayne kept possession of the diamonds at the request of the other parties. The object of the suit was to obtain possession of the diamonds. Conflicting evidence was given as to the identity of the diamonds in Hayne's possession, with those mentioned in J. Seale's letter, and also as to the interest which Lady Seale considered herself to have in the diamonds. Bacon, Q.C., and Wickens, for the plaintiff, contended that the gift was restricted to the use of the diamonds during Lady Seale's life, and that the plaintiff was now entitled to them. Malins, Q.C., and H. Stevens, for the defendant E. T. Heale, contended that the diamonds were assets to pay Minute.-Motion refused; costs, costs in the cause. Lady Seale's debts: adding, that there would not without them be sufficient for such payment. They also contended that the evidence which had been |