Practice-Lands Clauses Consolidation Act, ss. 85, 87-Condition of Bond not Fulfilled. Where a railway company gave notice to take lands under their compulsory powers, and paid a sum of money into Court, and the landowner filed a bill to restrain the railway company from taking possession, and ultimately the land was not taken : Held, that the money deposited might be paid out, and that the latter part of section 87 of the Lands Clauses Act relating to the non-fulfilment of the condition of the bond, did not apply. Saunders, in reply, The Court has no such discretion, Ex parte Stevens, 5 Rail. Ca. 437. Even if the Court had, it ought not to exercise it. The costs of the suit in 1851 are not ascertained: non constat that there are any. WOOD, V.-C., said that the latter part of section 87 of the Lands Clauses Act did not apply to such a case as the present, where the only reason why the condition of the bond was not fulfilled was that neither party desired it. It was quite different from the case of the company giving notice, and then refusing to complete by reason of pecuniary inability, which was the evil against which the clause in question was aimed. The South Staffordshire Company must recover their costs of the suit in the ordinary way. 9, 10, 21 DEC. 1863. Will-Construction-Domicile—“ Child.” The will of a testator must be construed according to the law of the place of domicile of the testator. An English testator left a legacy to the children of his This was a petition for the transfer to the Birmingham, Wolverhampton, and Dudley Railway Company of a sum of 3,365l. 15s. 5d. Bank Annuities, being the investment of a sum of money paid into Court in the year 1851, under section 85 of the Lands Clauses Consolidation Act, in respect of certain lands belong-nephew C, who was at the time of the making of ing to the South Staffordshire Railway Company which the Birmingham Company were desirous of taking under the powers contained in their Act. On the Birmingham Company proceeding to take possession of the lands in question, which were to be used for making a junction between the two lines, the South Staffordshire Company filed a bill to restrain them. A motion for an injunction was heard in August, 1851, and stood over till the next term. In November, 1851, the motion was mentioned, and stood over generally, upon an undertaking by the Birmingham Company not to take any further steps without giving notice to the Staffordshire Company. The Since then nothing was done in the suit. time fixed by the Act for the exercise of the Birmingham Company's powers long since expired: the land in question now forms the site of a station on the Staffordshire line; and the Birmingham Company have now power to make their junction at a different point. the will and of the death of the testator, an Englishman living abroad. Subsequently C acquired a French domicile, and married a French woman, by whom he had previously had a daughter. This daughter was duly acknowledged by C after the marriage, and legitimised according to French law : Held, that she was not entitled to the legacy. of the will of James Clegg, so far as the same related to a certain legacy of 50007. This was a suit for the administration of the trusts will, dated the 13th of March, 1843, the sum of 50007. The testator, who was an Englishman, gave by his to trustees upon trust to pay the dividends to his nephew E. B. Clegg during his life, and after his death after the death of the survivor to pay and divide the to his widow for her separate use during her life, and principal "to and amongst his children attaining the age of twenty-one years equally, or if only one such child, then to that only child": and if there should be no such child, then the sum in question was to form part of the testator's residuary estate. The testator died on the 19th of August, 1843. At the date of the will and of the death of the testator E. B. Clegg was residing abroad, but had not lost his English domicile. Subsequently, however, he acquired a French domicile, and in 1858 married the defendant Marie Anne Croc at Lyons, having previously to the marriage had by her a child, the defendant Catherine Edmée Croc, who was born after E. B. Clegg had acquired a French domicile. E. B. Clegg, subsequently to his marriage, There was no other issue of the marriage. Shortly after his death the bill was filed by the trustees of James Clegg's will against Marie Anne Croc, Catherine Edmée Croc, and John Bedale, the residuary legatee under the will of the testator. At the hearing, the usual inquiry as to the children of E. B. Clegg was directed, and the cause now came on to be heard on further consideration. The question was, whether Catherine Edmée Croc was a child of E. B. Clegg, so as to be entitled to the legacy of 50007. Rolt, Q.C., and G. L. Russell, for the plaintiffs. Daniel, Q. C., and Drewry, submitted that Catherine Edmée Croc was entitled to the legacy, being a legitimate child of E. B. Clegg, according to the law of France. They cited, Re Wright's Trusts, 2 K. & J. 505; W. M. James, Q.C., and Karslake.-This will is that of an English testator, and must be construed as such. Child means "legitimate child." C. E. Croc has only been "legitimated" by subsequent acknowledgment, according to French law. This proceeding cannot affect her status in this country any more than an Act of Parliament passed to declare a person legitimate would affect his status abroad. They cited, Anstruther v. Chalmers, 2 Sim. 1; Daniel, Q. C., in reply. 21 DEC. 1863. WOOD, V.-C., said, that the cause came on in a very inconvenient form for determining the rights of the child of E. B. Clegg, inasmuch as his widow, who had a life interest in the legacy was still alive. However, as she had been made a defendant, he thought he was in a position to determine the point. There was, no doubt, that, according to French law, E. B. Clegg was the father of the defendant, Catherine Edmée Croc; and the sole question was, whether he was her father in the sense used by this testator. No case had been decided exactly in point; but the law seemed to his Honour quite clear, as laid down in Story's Conflict of Laws (479 a.), that a will was to be construed according to the law of the place of the testator's domicile. Thus, if a testator in Canada left to his son, who was domiciled in England, a legacy of 1007., he would be held to mean 100%. currency, and not 1007. sterling. Here the testator giving a legacy to the child of E. B. Clegg, must be held to mean such a child as is recognised by English law. If there had been any allusion to the circumstance of E. B. Clegg being domiciled abroad, there would have been an additional ingredient in favour of the defendant; but, as it stood, the matter was quite clear. His Honour then referred to Anstruther v. Chalmers (loc. cit.), cited with approbation in Yates v. Thomson (3 Cl. & Fin. 544), as an English decision in support of the view taken by Story. The same question might arise under the Statute of Distributions, not with regard to the meaning of the word "child," which would be determined by the domicile of the intestate, but with regard to the meaning of "representatives" of deceased children, which he thought to mean representatives according to English law. So also, a gift by an English testator to the heir of a domiciled Frenchman, must mean the heir not according to French law, but according to English. The practice of the Court, with reference to service on persons out of the jurisdiction, adhered to, as established by Whitmore v. Ryan, 4 Hare, 612, notwithstanding Cookney v. Anderson, 2 N. R. 140. The bill in this suit was filed by Edward Steele, carrying on business as a soap-manufacturer at Liverpool, against Alexander Stuart, Robert Towns, James Stuart, Joseph Gordon Stuart, and Thomas Mitchell Staig. The suit arose out of business transactions between the plaintiff and defendants, which were con| ducted in accordance with the following arrangements. The plaintiff was in the habit of consigning parcels of soap to the defendants Towns and Alexander Stuart, who carry on business in partnership at Sydney, under the firm of R. Towns & Co., for sale there on behalf of the plaintiff, with instructions to remit the proceeds of such sales to the firm of Staig & Stuart, who were the agents and correspondents at Kircaldy, in Scotland, of R. Towns & Co. The defendants Thomas Mitchell Staig and Joseph Gordon Stuart comprised the firm of Staig & Stuart. When goods were shipped to R. Towns & Co., the plaintiff advised Staig & Stuart of the shipments. The plaintiff, or Messrs. Staig & Stuart, then drew against the shipments; and the drafts, when accepted, were discounted by Messrs. Staig & Stuart, and the pro ceeds remitted to the plaintiff, by way of advance Stuart and James Stuart, the latter of whom was resiagainst the shipments. dent within the jurisdiction, and active process was prayed against him. Messrs. Staig & Stuart reimbursed themselves out of the proceeds of the goods sold by R. Towns & Co., and remitted to them; and the surplus, after satisfying the bills or drafts, was handed over to the plaintiff. In accordance with the above arrangements, certain parcels of soap were shipped by the plaintiff to R. Towns & Co. in the months of June, August, and October, 1860; and advances were made in respect thereof by Staig & Stuart, by means of bills which were discounted with the Union Bank of Kirkcaldy. A correspondence was set out in the bill, in which it was stated that, by the direction of Staig & Stuart, R. Towns & Co. had remitted the proceeds of the sales of the above-mentioned parcels to the firm of Stuart Brothers (consisting of James Stuart and Joseph Gordon Stuart), bankers in London, as the agents of Staig & Stuart. The bill alleged that the remittances, before and when they came into the hands of Messrs Stuart Brothers, were ear-marked as made specifically in respect of or against the proceeds of sale of the plaintiff's parcels of soap. It contained, however, no express averment that the remittances had actually come to or were in the hands of Messrs. Stuart Brothers. The bills discounted having arrived at maturity, were not taken up, and the plaintiff was threatened with an action in respect of them by the Union Bank. The bill prayed that it might be declared that the proceeds of the sale of the parcels of soap had been effectually appropriated in equity to meet bills drawn on and accepted by the plaintiff by way of advance thereon, and discounted by Messrs. Staig & Stuart; that an account might be taken of all moneys received by the defendants and their firms respectively in respect of the proceeds of the sale; that the defendants might be decreed to make good the amount thereof; and that such amount might be applied in satisfaction of the bills, and the surplus paid to the plaintiff. An order having been obtained, giving leave to serve Staig and Joseph Gordon Stuart out of the jurisdiction; to-day Whitehorne moved on behalf of the last-mentioned defendants that the order might be discharged, on the ground that this suit did not fall under the statutes 2 Will. 4, c. 33, and 4 & 5 Will. 4, c. 82. He cited, Cookney v. Anderson, 2 N. R. 140. Druce, for the plaintiff, opposed the motion. The object of the suit was not to enforce payment of bills payable in Scotland, but to compel a banking firm in London to pay to the plaintiff moneys in its hands specifically appropriated by the Australian firm for that purpose. That firm consisted of Joseph Gordon In Cookney v. Anderson (loc. cit.), the whole of the defendants were out of the jurisdiction, the subjectmatter was out of the jurisdiction, and the deed under which the plaintiff's rights arose was a Scotch instrument. The plaintiff alone happened accidentally to be in this country. Such a case was totally distinguishable from the present, and the Lord Chancellor never intended his judgment to apply to a case where the subject-matter of the suit and a defendant, against whom active process was prayed, were within the jurisdiction. He also remarked that Whitmore v. Ryan, 4 Hare, 612, on which the practice was founded, had not been overruled. If these defendants could not be served, it would be impossible to take the accounts, Kirwan v. Daniel, 7 Hare, 347; Whitehorne, in reply. 21 DEC. 1863. WOOD, V.-C., said, that he considered this branch of the Court far too weak to upset what had been the uniform practice for a long period. The orders relating to service out of the jurisdiction were made in 1845, by all the Judges of the Court for the time being, under powers conferred by the Act 3 & 4 Vict. c. 94. In accordance with that Act the rules were to be laid before each House of Parliament, and were not to have effect till each House of Parlia ment should have sat for thirty-six days after the rules had been laid before it. If, however, that number of days elapsed without the rules being objected to by vote of either House, they were to become as binding and obligatory as if they had been enacted by Parliament. The orders in question not having been objected to, had thus obtained the sanction of the Legislature. It was proper, however, to observe, that the sanction might have been given, because the rules were not peremptory but simply permissive. In 1846, the case of Whitmore v. Ryan was decided by Vice-Chancellor Wigram. In arguing that case, every argument adduced by the Lord Chancellor in Cookney v. Anderson was used: nevertheless, the other side were not called on to reply to them. The ViceChancellor there decided that these orders were not confined to such suits as are mentioned in the two statutes of Will. 4 (loc. cit.); the facts of that case tried the principle as much as possible, but the decision was not appealed from, and had been uniformly followed, up to the present time. Further, those orders had been re-enacted by all the Judges of the Court under the presidency of Lord Campbell. The present Lord Chancellor, however, in Cookney v. Anderson, had founded his judgment on grounds which would show the present practice to be incorrect. The express decision, however, in that case did not go nearly that length: as there the Court had no jurisdiction either over the subject-matter of the suit or the parties to it. Considering the amount of sanction, however, which the present practice had obtained, his Honour felt himself too weak to alter it after it had been adopted for seventeen years without the express decision of a higher tribunal: but from the respect which he entertained for the judgment of the Lord Chancellor he had felt it necessary to explain his reasons as to what he was about to do in the present case. Bankruptcy Act, 1861, Section 70, r. 1—Service of Petition Abroad-Practice. Service of a petition on a debtor residing abroad, under Section 70 of the Bankruptcy Act, 1861, will be void unless application be made previously under rule 1 of that section. sional Life Assurance Company," asked for an adjuRoxburgh, for the official manager of the "Profesdication of bankruptcy against a debtor under the following circumstances. The company was being wound The Judge had under the order in question a dis-up under the Joint-Stock Acts of 1848 and 1849, the debtor had been placed on the list of contributories, and cretion as to granting leave to serve the defendants an order for a call had been made by the Master of the out of the jurisdiction. Here the litigation was Rolls in the present year. The debt in this case mainly Scotch, having arisen out of dealings with amounted to 1,9217. 13s. 8d., being a balance of a Scotch firm. The bill contained no distinct aver ment that the subject-matter of the suit was within the jurisdiction; and, therefore, in exercise of the discretion given him, he should discharge the present order. Had the bill contained proper averments that the subject-matter was within the jurisdiction, he should have been inclined to follow what he had done in the case of Venning v. Lloyd (see 6 Jur. (N. S.) 81). account for calls. The debtor was residing now, and had been residing for two years, at Boulogne. There was an affidavit of the official manager that the debtor intended residing out of England, in order to defeat his creditors, and also an affidavit of the service of the petition on him at his present place of residence, and it was contended that, as the debtor was a non-trader, the debt here owing was a debt or liability which came within the 90th section of the Bankruptcy Act, 1861. He cited, In re Royal Bank of Australia, 3 Sm. & G. 272, 6 De G. M. & G. 572. part of the 70th section of The Bankruptcy Act, 1861. It must also be proved by affidavit. A memorandum endorsed, though purporting to be signed by the debtor, of its receipt, will not be sufficient. Goulburn, Comr.} Re HEAD. 21 DEC. 1863. Bankruptcy Consolidation Act, 1849, s. 125- Furniture remaining in a bankrupt's dwelling-house for the use of which the bankrupt had agreed with his landlord to pay him a yearly sum (which he had not paid), will pass to his assignees under section 125 of the Bankruptcy Consolidation Act, 1849. Roxburgh, after stating that his Honour had some time since given leave to serve the petition for adjudication on this debtor, who was a non-trader and residing abroad, and that on the 10th of November, 1863, the petition had accordingly been served, applied for an adjudication of bankruptcy against the debtor under section 70 of the Bankruptcy Act of 1861, rule 5. The service in this case was proved by a copy of the petition served, with a memorandum of receipt by the debtor indorsed upon it. The question was, it being admitted that an act of bankruptcy had been committed, as to the nature of the petitioning credi-M.P., demised to the bankrupt, as tenant from year to By deed dated January 8th, 1858, Mr. Cobbold, tor's debt. The debtor was a shareholder in the Waterloo Insurance Company, which was being wound up by the Court of Chancery, and this petition was based on an order of that Court made the 4th of August, 1863, and making a call on the debtor in respect of the shares held by him in the company. He contended that this was a sufficient debt on which to found the petition. Chidley (solicitor), cited, contrà, Secus, as to fixtures, and also as to furniture in a house which a bankrupt had underlet. This was a special case, stated for the opinion of the Court. year at an annual rent of 201., a hotel at Walton-onthe-Naze. At the same time it was agreed that the furniture and fixtures then in the hotel, and should bankrupt should pay an additional yearly sum for the purchase the same on or before January, 1859. By deed dated the 5th of May, 1859, Mr. Cobbold demised a private house (unfurnished) to the bankrupt at a rent of 287. This house the bankrupt furnished himself. He also added some furniture to that in the In re Royal Bank of Australia, 3 Sm. & G. 272; hotel. On the 2nd of December, 1862, a fresh demise 6 De G. M. & G. 572; by the landlord was made to the bankrupt of the hotel, Warwick and Worcester Railway Company, 30 and at the same time the bankrupt also underlet his L. J. 530 (Equity). HIS HONOUR, without entering into any question as to the nature of the debt, held, that in the present case there was not sufficient evidence of the personal service of the petition, so as to justify him in making the adjudication prayed for. Application had been made to him for leave to serve the petition abroad, and on that application it was ordered that the 16th of December should be the time specified wherein the debtor should appear (s. 70, rule 2), and that a copy of the petition should be served personally on the debtor. He found no affidavit whatever in the proceedings of service. There was a copy of the petition, with a notice written thereon by somebody that the paper had been received "by me," and signed by the name of the debtor, but there was no affidavit as to such signature. If that were proper service, a person might be made bankrupt on the receipt of a letter by the post. Nothing appeared to satisfy the Court that, supposing personal service had not been effected, every reasonable effort had been made to do so, and that the attempts to serve the debtor had come to his knowledge and had been defeated by him (s. 70). The Court would, therefore, decline to adjudicate, but the time for adjudication would be enlarged for a week from this date. private house. For some time previous to his bank- Bagley, for Mr. Cobbold, cited, as to the fixtures, that the question in this case arose on the 125th section First as to the fixtures, which he would consider that the Act had no operation on these, and that apart from the furniture, he was clearly of opinion they belonged to the landlord. He would next consider the furniture in the private house, and this he held could not be said to be at the time of the bankruptcy in the order, &c., of the bankrupt, being in fact in that of his sub-lessee. Then as to the |