June 16, 1564. The master of the ship H., during the voyage, executed a bottomry bond hypothecating the ship, freight, and cargo. The cargo was not perishable, and the master could have communicated with the owners of the cargo before executing the bond:-Held, in an action on the bond First, that the master should have communicated with the Secondly, that the master was not bound to tranship the July, 1861, executed by the master on the ship, cargo, and freight, a sum of 7592.88 dollars, with a premium of 33 per cent. (2530.96 dollars), the whole sum secured by the bond being 10,123.84 dollars, or 21547. Os. 2d. sterling. The money advanced was not paid to the master, but to Messrs. Paulsen & Co., the agents for the ship. The ship sailed a few days afterwards from St. Thomas's, and arrived at Liverpool on the 13th August, 1861, when the ship, cargo, and freight were arrested by a warrant from the High Court of Admiralty of England, extracted by the plaintiff as the holder of the above bottomry bond. The owners of the ship did not contest the validity of the bond, and allowed the vessel to be sold at Liverpool, when she realised 5601. The freight, 2017. 12s. 10d., was also paid into the registry. The cargo, on its arrival at Liverpool, was valued at 8951. The plaintiff has received the net proceeds of the sale of the schooner and freight, amounting together to 7047. 17s. 3d., in part liquidation of the 21547. Os. 2d. alleged to be due on the bond, and he claimed by this suit the full value of the cargo in further part liquidation of the bond. The case was argued before the judge of the High Court of Admiralty on the 24th March, 1863, when the claim of the bondholder was resisted on behalf of the consignees of the cargo (the now respondents) on several grounds. This was a cause of bottomry instituted in the High Court of Admiralty of England, by Alexander Duanty, of Liverpool, the holder of a bottomry bond on the schooner Hamburg, the cargo lately laden therein, and the freight due for the transportation thereof, against the said schooner, her said cargo, and the said freight, and against Messrs. Judah Hart & Co., of 7, Bread-street-buildings, in the city of London, merchants, Messrs. Charles White & Sons, of Barge-yard, Bucklersbury, in the city of London, merchants, and Messrs. Fruhling & Goschen, of 12, Austin-friars, in he city of London, merchants, the owners of the said argo (and the now respondents). The Hamburg was schooner belonging to the port of Hamburg. In month of January, 1861, whilst lying in the port f San Juan del Norte, she was chartered to convey Brazil wood and other produce from San Juan del Norte to Liverpool, in England, the freight being payble at Liverpool upon delivery of the cargo. The Hamburg was accordingly laden with a cargo of Brazil Food, gum, indigo, and india-rubber, which was consigned, by three separate bills of lading, to the respondents, Messrs. Judah Hart & Co., Messrs. Charles John White & Sons, and Messrs. Fruhling & Goschen, merchants, in the city of London. The master retained in his possession copies of two of these bills of lading, upon which the names and addresses of the onsignees were indorsed. The vessel proceeded on er voyage from San Juan del Norte, and having met ith damage from heavy weather was obliged to put to St. Thomas's on the 24th April following, for pairs. Upon her arrival there the master reported to Z. and T. Levy & Co., who were the agents of J. Levy & Co., of Hamburg, the owners of The amburg, and applied to them for funds to enable im to repair the damage, but they declined to assist Lord CHELMSFORD delivered the judgment of their He then appointed Messrs. Paulsen & Co., of Lordships.-This was an appeal from the judgment Thomas's, agents for the ship, and reported her to of the High Court of Admiralty, which has been proconsul for Hamburg, who directed her to be sur-nounced for the invalidity of a bottomry bond, in so eyed, and an estimate of her then value, and of the far as it applied to the cargo of the ship Hamburg; st of necessary repairs to be made by three persons, and the question arose under the following circumho, by two reports, dated respectively the 6th May, stances:-The Hamburg was a schooner of fifty Ham861, valued the vessel at 2000 dollars, and estimated burg commercial lasts. She was proceeding from Nihe cost of the necessary repairs at 4820 dollars, "not caragua to Liverpool with a cargo of Brazil wood, eluding what extra work might be found necessary gum, indigo, and india-rubber, and on the 25th April, fterwards." The repairs were completed by the 5th 1861, she put into St. Thomas's for the purpose of uly, 1861. On the 9th July the master advertised repairing the damage she had sustained on the voyage. St. Thomas's for a loan of 6000 dollars, or there- On the 9th July the master advertised for tenders for bouts, on bottomry of the ship's cargo and freight. a loan to defray the expenses incurred for the repairs, Mr. S. Bartholomei Lange, of St. Thomas's, advanced, landing, and reshipping the cargo; and on the 24th on the security of a bottomry bond, dated the 24th July, 1861, executed the bottomry bond in question, On the 31st March, 1863, the judge of the High Court of Admiralty delivered judgment, pronouncing against the bond so far as it regarded the cargo, and condemned the now appellant in costs. The bondholder appealed from this judgment. Milward and Vernon Lushington, for the appellant.There was no reasonable opportunity of transhipping the cargo, nor was there any obligation on the master to tranship. In any event the appellant, having advanced his money in good faith on the 24th July, 1861, cannot have his security of that date affected by the default of the master in not transhipping in May. [They cited The Gratitudine (3 Ch. Rob. 240); The Buonaparte (8 Moo. P. C. 459); Glascott v. Lang (2 Ph. Ch. Cas. 310); The Oriental (7 Moo. P. C. 398); The Olivier (1 V. Lush. 484); Duncan v. Benson (1 Exch. 537); Benson v. Chapman (5 C. B. 330); Cammell and Others v. Sewell and Others (5 H. & Norm. 728); The Priscilla (1 V. Lush. 1); Nostra Senora del Carmine (1 Spinks, 303); La Ysabel (1 Dods. 273); The Rajah of Cochin (1 Swab. 473); Arthur and Another v. Barton (6 M. & W. 138); and 3 Kent's Com. 240).] The Queen's Advocate (Sir R. Phillimore, Q. C.) and Dr. Tristram, for the respondents.-The master was bound, under the particular circumstances of this case, to communicate with the owners of the cargo before he executed the bond. The master is only the agent of the owner of the cargo, ex necessitate rei, when he cannot communicate with the owner of the cargo. [They cited The Royal Arch (1 Swab. 269); The Neptune (3 Hagg. 129); and The Segredo (1 Spinks, 36.] think, quite correctly. The master was certainly bound to tranship his cargo; indeed, his first d was to carry his cargo to its destination in the sa bottom, unless under the greatest difficulty. learned judge rightly thought that the true fore this objection was not as an independent one, that the circumstances on which it was rested m have their weight in the consideration of the seco on which, indeed, the judgment itself, and the at ment on the appeal, mainly turned. whereby he hypothecated the ship, freight, and cargo for the sum of 7592 dollars, with a maritime interest of 33 per cent., the total amount of the bond in English money being 21541. The ship arrived at Liverpool on the 13th August, 1861; in September proceedings were commenced on the bond; as to the ship and freight no defence was offered, and the bondholder became entitled to the proceeds of these, amounting to 7047. 178.; this left a deficiency of 14497. 3s., for which it was sought to make the cargo responsible, and that has sold for 8951. This sum was the This brings their Lordships to the consideratio matter in contest. The learned judge decided against that objection, and it is impossible for them n the claim, and the decision is now appealed against. perceive that, in dealing with it in the court belo Two objections were made in the court below to has been considered that it derived whatever w the claim of the bondholder, and were relied on in it was entitled to from the decision of this Con the argument on the appeal. It was urged, in the tee, in the case of The Buonaparte, reported in 8 first place, that looking to the small value of the ship, P. C. 459, which it was supposed had introduc even when repaired, together with the freight, the new rule of decision into this branch of maritime master was not justified in incurring expenses which Whether this supposition be correct or not, und led to the necessity of borrowing so large a sum, but edly, if in itself that decision was both rightly u ought to have transhipped the cargo; in the second stood below, and also rightly applied to the ci place, it was contended, that considering the circumstances of this case, the learned judge could on stances just stated, and some which will presently be termine the case before him as he has done. added, it was, at all events, the duty of the master, important sentence in that judgment is to be before he incurred these expenses and signed a bond in p. 470, and is as follows:-"That it is ar which was to bind the cargo, to communicate, or at versal rule that the master, if in a state of dist least attempt to communicate, with the owners of the pressure, before hypothecating the cargo, mus cargo in England, and to have waited at least a rea- municate, or even endeavour to communicate sonable time for their instructions. the owner of the cargo, has not been alleged, a position that could not be maintained; but safely, both on authority and on principle, b that, in general, it is his duty to do so, or it is his in general, to attempt to do so." The facts now to be stated, which in some measure apply to both objections, but principally to the last, are these:-The cargo consisted, as has been stated, of Brazil wood, gum, indigo, and india-rubber, articles not of a rapidly perishable nature; it was consigned in different proportions to three separate houses in London; and their Lordships are not prepared to differ from the learned judge's opinion, that the master, if he were ignorant of the addresses of these firms, had the means at St. Thomas's of ascertaining them, or one or more of them, or of procuring a letter to be forwarded to one or more of them. The means of postal communication between St. Thomas's and England are fortnightly; The Hamburg arrived at St. Thomas's on the 25th April, and the bond was executed on the 24th July. Mail steamers left St. Thomas's for England on the 29th April, the 14th and 29th May, the 13th and 29th June, and the 15th July, and mails for St. Thomas's from London were made up on the 2nd and 17th of each of the months of May, June, and July. Had the master, even if he passed over the mail of the 29th April, written by that of the 14th May (which for anything that appears he certainly might have done), he would probably have had an answer by the mail which left England on the 13th June, and might have been expected to arrive at the latter end of that month; and it appears that the negotiation for the bottomry loan did not commence until the 11th July. It may be added, that although the master's conduct is severely reflected on as unauthorised, and wanting in good sense and consideration, no fraud or collusion is imputed to him; indeed, he seems to have acted under advice, which by the law of his country he deemed himself bound to be governed by a circumstance not entirely without significance, as a fact, although their Lordships entirely agree with the learned judge of the Admiralty, that the case is to be decided by the general maritime law as administered in England. Lastly, no fraud is imputed to the lender of the money on the bond. Upon this statement of facts their Lordships have to consider the propriety of the judgment. The first objection was disposed of by the learned judge very shortly and without difficulty, and, as their Lordships This sentence is followed by one which, in t port, is printed as follows:-"If, according to cumstances in which he is placed, it is reasonabl he should, it was rational to expect that he mi tain an answer within a time not inconvenie reference to the circumstances of the case; it taken, therefore, upon authority and principle, is the duty of the master to do so, or at least t the attempt." This passage is obviously inaccurate. Th ment was not written, but appears to hav printed from a shorthand writer's note. It however, difficult to collect what really was the learned judge, and, with a slight correction text, would stand thus:-"If, according to ! cumstances in which he is placed, it be reasonal he should-if it be rational to expect that he tain an answer within a time not inconvenien reference to the circumstances of the case, t must be taken upon authority and principle th the duty of the master to do so, or at least t the attempt." That this is the true wording of the pass have ascertained by communicating with Lo tice Knight Bruce, who delivered the judgme is a most important passage, and the complem explanation of what goes before. The precedi tence states that it is the duty of the master tain circumstances to make an attempt to m communication, and this sentence explains w circumstances are in which this duty is impose him. It shews what the learned judge unders the expression "in general," if such words we by him. The reporter has accurately stated marginal note the general rule established by cision, though he has unfortunately omitted to the press in that portion of the judgment in w is expressed. In the rule thus enunciated their Lords unable to discern any novelty, either in the ciple on which it rests, or in its application to t June 18, 1964. [Privy Council.] of the hypothecation of the cargo of a ship by the master. and have no power to direct him, but in the single case of an actual delivery to them; if owners, they The character of agent for the owners of the cargo may be very numerous, for in a carrier ship there may is imposed upon the master by the necessity of the be a hundred owners of the cargo, and the master may case, and by that alone. In the circumstances sup-be in danger of receiving a hundred different opinions, posed something must be done, and there is nobody supposing it were possible for him to apply to all. present who has authority to decide what shall be What does the necessity of such a case offer to be done. The master is invested by presumption of law done?" Again (p. 266); he answers an extreme case, with authority to give directions on this ground-put at the bar, of a valuable ship, with a cargo of a Undoubtedly the master that the owners have no means of expressing their considerable value, belonging to Dover, being in diswishes. But when such means exist, when communi- tress at Calais, and says, cation can be made to the owners, and they can give should use his utmost endeavours to correspond with their own orders, the character of agent is not imposed the consignees or proprietors; but a case of instant · the master, because the necessity which creates necessity might occur even so near, the master might not be able to receive their directions; all communicaupon it does not arise. tion might be interrupted, as it is sometimes for a fortnight or three weeks. It is clear that the rule as to communication must be either, that in no case, and under no circumstances, is it incumbent on the master to communicate with the owners of the cargo; or that, in some cases, and under some circumstances, it is incumbent on him so to do: either the universal negative or the particular affirmative proposition must hold, and both cannot be true, although one must be. But it has not been contended, and cannot reasonably be argued, that the first proposition is true. Where the cargo belongs to a single individual, known to the master, the ship in a port in the same country, or near to it, in which that owner is resident, the means of communication sure and speedy, the probable delay inconsiderable, the cargo not of a perishable kind, the money to be borrowed so large as to be sure to bring it within the operation of the bond, it could not be contended that the master could properly hypothecate it for the repairs of the vessel without first communicating with the owner. Equally clear it is, that, where all these circumstances were reversed, no such duty would be incumbent on him. But if the first proposition be false, and the latter true, what is in effect the practical conclusion, but that the question, whether a master must communicate or not, is one which can only be decided by the circumstances in each particular case? And this, which certainly seems consistent with the principle on which, as we have already observed, the maritime law makes the master, under certain circumstances, an agent for the owner in respect of the cargo, their Lordships believe to have been recognised by Lord Stowell in the case of The Gratitudine. This was not the precise point for decision in that case; but no one can read that admirable judgment attentively without perceiving that the duty of communication with the owner of the cargo before hypothecation under circumstances, and dependent on circumstances, was familiar to the mind of the great judge who decided it. 66 That the rule laid down in the case of The Buonaparte was properly applied in that case, no person who attends to the facts can entertain any doubt. There may be more doubt in the present case; but the learned judge has examined the evidence with great care, and appears to us to have arrived at a right conclusion. As to the supposed inconvenience of the rule, their Lordships do not forget, that the lender of the money is the party interested in the event of the suit, and not the master. But there is no hardship in requiring from one who is about to advance a large sum of money under such circumstances, that he should inquire of the master whether he has communicated, or made an attempt to communicate, with the owners the circumstances of his distress, and what he proposes to do in regard to their goods. And it must be remembered, on the other hand, that the owners of the goods are equally interested, and, unless communicated with, have not the same means of protecting their own interests, which the lender undoubtedly has. If it be said, that a decision in their favour will tend to increase the difficulty of procuring loans in foreign ports for the repair of vessels in distress, it may also be said, on the other hand, that it will tend very much to the benefit of commerce in general to discourage improvident or fraudulent advances. Their Lordships will humbly recommend to her Majesty, that this judgment be affirmed, and the appeal dismissed, with costs.-Appeal dismissed. COURT OF APPEAL IN CHANCERY. The donees of a power to appoint amongst children ap- Thus, in 3 C. Rob. 259, "There are other cases also in port in which the master has the same authority forced on him. Suppose the case of a ship driven into port with a perishable cargo, where the master could hold no correspondence with the proprietor; Suppose the vessel unable to proceed, or to stand in By a settlement, dated the 10th December, 1808, Deed of repairs to enable her to proceed." Again (p. 261): Suppose the cargo to be not instantly and made in contemplation of the marriage of Vickris Perishable, but that it can await the repair of the ship, Pryor and Jane Ann Pryor, certain hereditaments What is the master to do in the situation before de- were limited to the use of trustees, upon certain trusts scribed, being a stranger in a foreign port, in a state for the benefit of Vickris Pryor and Jane Ann Pryor, distress, without an opportunity of communication and subject thereto, to the use of such child or chilwith the owners or their agent-what is his duty under dren of the marriage, in such shares, for such estate such circumstances?" Again (p. 262): "It cannot be and interest, to take effect in possession at such age or time, and in such manner, as the said Vickris Pryor Said that he is in all cases to wait till he hears from a distant country. The repairs may be immediately and Jane Ann Pryor should by deed jointly appoint, necessary; it may be hoped that the repairs will be or as the survivor of them should appoint; and for far advanced before he can hear from the consignees. want of, and subject to, any such appointment, to the The master may not know the proprietors at all, but use of all and every the children, both sons and daughnly the consignees; they may be mere consignees, I ters, of the body of the said Jane Ann Pryor by the said Vickris Pryor, as tenants in common in tail, with cross remainders between them. There were nine children of the marriage-Richard Vickris Pryor, Frederick Peacock Pryor, Felix Pryor, Arthur Pryor, Thomas Pryor, Elizabeth Pryor, Martha Pryor, Ann Pryor, and Isaline Pryor. Frederick Peacock Pryor died an infant and unmarried; Martha Pryor married Herbert Randolph, and died in 1838, leaving an only daughter, Martha Jane Randolph, who married the Rev. Francis Charles Hingeston; Elizabeth Pryor married William Gould; Jane Ann Pryor married Alfred Pryor; and Isaline Pryor married Edward Burridge. By an indenture, bearing date the 18th June, 1846, reciting the above power contained in the settlement of 1808, Vickris Pryor and Jane Ann Pryor did, in pursuance thereof, irrevocably appoint the hereditaments comprised in the deed of 1808, and subject to the said power of appointment, unto and to the use of "Felix Pryor and Arthur Pryor, and their heirs and assigns, as joint tenants, and not as tenants in common, and to, for, and upon, no other trust, intent, or purpose whatever." By an indenture, dated the 19th June, 1847, and made between Felix Pryor and Arthur Pryor of the one part, and Robert Pryor and Tomkyns Dew of the other part, after reciting the above-mentioned deeds of 1808 and 1846, and that they, Felix Pryor and Arthur Pryor, were desirous of making some provision for the Rev. Richard Vickris Pryor and Thomas Pryor, and Elizabeth Gould, Jane Ann Pryor, and Isaline Burridge, their only surviving brothers and sisters, respectively, out of the said hereditaments, and of settling the same as therein mentioned, Felix Pryor and Arthur Pryor, for a nominal consideration, granted, released, and confirmed to the use of Pryor and Dew, as trustees, all the said hereditaments, after the decease of Vickris Pryor and his wife, upon trust to pay annuities of 50l. to Elizabeth Gould, Jane Ann Pryor, and Isaline Burridge, for their respective lives; and upon further trust to pay to Richard Vickris Pryor and Thomas Pryor, during their joint lives, and afterwards to the survivor of them, an annunity of 501. And it was further declared, that the trustees should stand seised of the said hereditaments subject as aforesaid, upon trust for Richard Vickris Pryor, Felix Pryor, Arthur Pryor, and Thomas Pryor, in equal shares, as tenants for life in common, with a power to each to appoint his share, after his death, among his children; and in default of appointment, then as to the share of each for his children, with cross remainders over in default of children of any one, or more; and on failure of issue of all of them, then upon trust for Jane Ann Pryor, wife of Vickris Pryor, and her heirs and assigns. Vickris Pryor died in 1849; and in December, 1861, the trustees, Pryor and Dew, filed a bill against all parties for a declaration of their rights, alleging that the deeds dated in 1846 and 1847 were void as a fraud upon the power. Inquiries were directed, and it was proved that the deed dated in 1846 was in fact executed in June, 1847; that the deeds were prepared by a Mr. Veasey, who was solicitor to the father and mother; that instructions were first given to counsel to prepare a deed of appointment much in the form of the deed dated in 1847, but giving also a life interest to the husband of one of the daughters; and on counsel advising that that could not be done, then the two deeds were prepared and executed; also that in the original draft Richard Vickris Pryor was one of the appointees, but on his objecting his name was struck out. The correspondence between the parties and Mr. Veasey, the solicitor who was employed, also shewed that Arthur Pryor also raised some objections, but deferred to his mother's wishes. The cause ca on before Vice Chancellor Wood, who, on the 1st 1861, declared the deed to be fraudulent and void, livering judgment to the following effect: Sir W. P. WoOD, V. C.-I think this case co within the class of cases referred to in Tucker v. Tu No doubt the questiou may be difficult in many but here it is too clear; in many cases the dist tion may be fine, as to whether or not the appointm is what it ought to be-an appointment by the rent to a child, an object of the power, the child be desirous that some settlement should be made, being anxious, or we will say, agreeing and concur in the settlement; or whether it is just as it was the argument, that the child has really no voice in matter, but that he is merely the instrument sele by the parent to make an appointment, which is yond the objects of the power; and the author shew that the question does not depend upon whe it be for a corrupt motive, or from an honour and reasonable motive. Nobody imputes com motives to this lady, and I should be sorry any suggestion of the kind should be made. would have a great effect in one event. I sh have more to investigate the question, if I cam a different conclusion on the other branch, ho came to pass that she got that estate left to in fee; that would have a different effect. I as that to be, as suggested, a mistake which migh corrected. Assuming that to be so, it comes to that the appointment is made to the two brothers they by a subsequent deed make the settlemen favour of their sisters, and in favour of grandchild who are not objects of the power; and I appreh that though the parent may, as far as morale siderations are concerned, wish to provide for remoter issue, yet the rule of law which prohibits parent from having any power of providing for remoter issue, carries it on to this, that it canno done at the sole will of the parent; if it is done a it must be done in a bonâ fide manner, by an app ment to one of the objects of the power, and object of the power thinking it reasonable that provision should be made. In all cases where a pa appoints to a child, and the child marries, the cas very simple and a very easy one to deal with. It be the very thing the child might wish; and alth there may be parental influence exercised if the perty were the child's own property, without any pointment at all taking place, proper influence be exercised, and no one could complain of that. case of Goldsmid v. Goldsmid (2 Hare, 187) goes) ther in some respects than any of the other cases. Honor then commented on that case and proceed In that case there really was nothing on the fa the transaction to shew that it was not what it ported to be, namely, an appointment to the dang and a choice on her part to make the settlement i manner described. In all cases the Court wou anxious to uphold a transaction of this kind, unl a case where it clearly can get behind it. But if the whole transaction the evidence is so clear the can have no doubt that the condition, or unders ing, which is the same thing, is, that the app should resettle it immediately in a manner that scribed, and that is accepted, I apprehend, th would be a fraud on the donor of the power for persons to have held it upon other trusts, and it be also a fraud upon the objects of the power the donee of the power should be able to poi anything which is not an object of that power allow the trustee to hold it, and not to carr effect the intention of the donee of the power, be a fraud on that donee; the trustee holding it, m 18, 18] himself simply the conduit pipe upon a trust which he has undertaken to perform, that becomes a fraud on the objects of the power. [His Honor then commented on the evidence, and came to the conclusion that it was as plain as possible that it was brought within the rule, that if you make an appointment to a person upon an express trust that he was to hold it for others who were not objects of the power, that appointment could not stand, and must fail in toto; and his Honor made a decree declaring the appointment void.] Those claiming the hereditaments under the deeds of 1847 appealed. Sir H. Cairns, Giffard, and Wickens, for the appellants.-This appointment was made bonâ fide, and for the interest of the whole family, and is in no sense a fraud on the power, even admitting that it was made on an understanding that the further settlement would be made. There is no difference between this and the common case of an appointment before a marriage ettlement, which has never been disputed. [They ted Sagd. Pow. 670; White v. St. Barbe (1 V. & B. 39); Wade v. Paget (1 Bro. C. C. 364); and Goldsmid Goldsmid (2 Hare, 187).] Willcock, Rolt, Daniel, Fooks, Surrage, and Darby, Rasch appeared for the trustees. A question was raised as to whether the evidence of Mr. Veasey was admissible, and the Court decided that it was. vey and assure" the property, and so on; then it is conveyed, to a certain extent, for the benefit of the brothers and sisters who are the objects of the power; and, subject to that, for the benefit of persons of a lower generation, who are not objects of the power. Now, the first question is, whether it is possible, as a matter of fact, to persuade any reasonable being, upon these materials, that the settlement, so to speak, by the two brothers, Felix and Arthur Pryor, in favour of their brothers and sisters, had not been matter of contract and bargain between them and their parents, the donees of the power-whether any person in his senses could be brought to believe that the parents would have made the appointment, but for that contract and bargain. That standing alone would, I agree with Mr. Giffard, be immaterial; such a matter of bargain in favour of persons who were objects of the power, would amount to nothing; it is the association that proves the true nature of the case as to the grandchildren of the donees of the power; and as it is, I think, an irresistible inference that the settlement in favour of the brothers and sisters was matter of bargain, so that the other part of the same transaction in favour of the grandchildren of the donees of the power, must also be taken by any reasonable man, acting as a judge of facts, to have been also matter of bargain. I think it clear that the two purposes were associated together-that one was not independent of the other-that they formed parts of one entire design, which entire design was in contradiction of the original settlement, and in transgression of the law, and was therefore void. It is an irregular transaction, which must have been carried into effect, and I have no doubt, in this case, was carried into effect, by wellmeaning and honourable persons; but it is one which, viewed as upon the evidence-the plainly and clearly admissible evidence-the law forbids. I agree entirely with the Vice-Chancellor's conclusion, whether, as I have already said, the disputed evidence is admitted or not admitted. Sir J.L. KNIGHT BRUCE, L. J.-If there is a limited power to be executed in favour of the objects of the power, and there is a belief and intention that so soon the power shall have been executed, the intended Sir G. J. TURNER, L. J.-I also agree with the Viceappointees will dispose of the property in favour of Chancellor's conclusion. I think it is impossible to persons not objects of the power; and if besides the doubt, from the evidence in this case, apart from the belief or knowledge of such intention, there is a bar- disputed evidence, from the mere facts of the case gain between the donees of the power and the ap- itself, that this was a deliberate attempt to go beyond pointees, that the appointee shall dispose in favour of the limits of the power. It has been attempted, in persons not objects of the power, and it is the result argument, to support the case by the analogy of an of the evidence that the execution of the power is the appointment made to a daughter upon her marriage, effect and consequence of the bargain, and would not and a settlement by the daughter in favour of herself have taken place but for a contract, whether valid or and the issue of her marriage. I confess that I am invalid, between the donees and the appointees that inclined to suspect that analogy very much, because it should be made, and it is the true result of the evi- the course of executing an appointment in favour of ence that it would not otherwise have been made at her daughter upon her marriage, and then that daughall, then such an execution of the power is bad, in my ter making a settlement, has been pursued for a cenjudgment. The question here is, to which class this tury, and there has never, up to the present day, been ecution belongs; and upon that question I am of an attempt made-at least, I am not aware of any, pinion that nothing is required beyond the two deeds until the present argument-to extend that doctrine June, 1847-contemporaneous deeds in substance generally. I will not discuss that question, however, nd in fact, although one of them bears date in the but I do not think that the analogy has really any apyear 1846. The first of them is an appointment of plication. When an appointment is made in favour property to two of the objects of the power, as joint of a daughter or a son, with a view to marriage, then tenants in fee; the second deed is a settlement by the question is, in what mode the son and daughter is them (both being substantially contemporaneous, as I to enjoy it-whether the daughter is to enjoy it by have already said) containing this recital:-" And the herself, for instance, or through the medium of a setd Felix Pryor and Arthur Pryor" (these are the two tlement to be made by her upon herself, and her chil#ppointees under the first instrument) "being respec- dren deriving their enjoyment through her. Now, ely desirous of making some provision for their Mr. Giffard, most ingeniously, I must say, endeavoured d brothers and sisters out of the said hereditaments, to apply that argument to the present case, by saying, d also of settling and assuring the said heredita-" You may as well say, that here the appointment in ents described or mentioned in the said schedule to ose persons, upon the trusts, and for the purposes, d with the powers, hereinafter mentioned respecvely, for the purpose of carrying the said recited Nesire into effect, have agreed and determined to con favour of the two sons, in order that they may appoint to their brothers and sisters and the issue of the brothers and sisters, is also a mode of enjoyment of the brothers and sisters." But there it is to be observed that there is no occasion, no particular occa |