tion, then he would not have the benefit of the 4th section, but would be left to the law as it stood before, with the additional advantage however conferred upon him, that although he shall be within the exception from the benefit of the section generally, he would get the benefit of the concluding words of the section, namely, that he is not to be imprisoned under any circumstances for more than a year; a position which would be more favourable to him of course than the position in which he stood before the passing of the

statute.

The 3rd exception is this: "Default by a trustee or person acting in a fiduciary capacity and ordered to pay by a Court of equity any sum in his possession or under his control." This gentleman has been ordered to pay a sum of money, which, putting the question of interest apart, I assume, for this purpose only, to be a distinct sum of 4,000l., and the argument was that at the time that order was made, although true it was that the 4,000l. had once been in his possession, and although true it was that a Court of equity must regard it as still being in his possession, because he has not properly discharged himself of it, yet inasmuch as he had, before the order was made, squandered and wasted it by incurring debt, so that he was no longer in a condition to pay, he was not within the 3rd exception, but was entitled to say, "when the order was made I was not in possession of that sum of money, nor had I it under my control." I apprehend that that construction of the Act would be one that would ill harmonize with the scope of the whole section, and the various exceptions which have place under that section, because the exceptions are all of them of a character which indicates that the legislature wished to limit the protection of this statute simply to the reduction of imprisonment to the period of a year in regard to certain debts, payable, not simpliciter as debts originally contracted in the ordinary intercourse between man and man, where credit is given by one person to another, but as contracted in a manner subject to observation in respect of their bearing a character in some degree worthy of being visited with punishment.

Now the first exception is "default in payment of a penalty, or a sum in the nature of a penalty other than penalty in respect of any contract." That very first exception makes extremely clear the distinction I have pointed out, because even as regards a penalty, if it is merely a penalty in respect of a contract, that is not to deprive the person who has incurred the penalty from the benefit of the section; but if it is any other sort of penalty, by which is meant a penalty for the infringement of a positive law, he is to be excepted from the benefit of the section. The second exception is "default in payment of any sum recoverable summarily before a justice or justices of the peace.' That again would be something in the nature of a penalty for an infringement of the law, and not in the nature of a simple debt. Then we come to the third exception, "default by a trustee or person acting in a fiduciary capacity, and ordered to pay by a Court of Equity any sum in his possession or under his control." The fourth exception is "default by an attorney or solicitor in payment of costs when ordered to pay costs for misconduct as such," again pointing very clearly to the distinction I have adverted to:-" default in payment of a sum of money when ordered to pay the same in his character of an officer of the Court making the order," again pointing to the same sort of distinction; though, no doubt, there may be particular cases in which the shades of misconduct would vary from the darkest to those of an extremely light description. Then the fifth is "default in payment for the benefit of creditors of any portion of a salary or other income in respect of the payment of which any Court having jurisdiction in bankruptcy is authorised to make an order." And lastly, "default in payment of sums in respect of the payment of which orders are in this Act authorised to be made." Therefore in every case excepted, there is something in the character of delinquency pointed at. I cannot see that it makes a shadow of dif ference with reference to the question of delinquency, whether a person has the money in his possession at the time the order is made, or has had it in his pos

session, and some short time before the making of the order has made away with it or squandered it, and so prevented the cestui que trust from having the benefit of any order that could be made. On the contrary, there would be the greatest possible injustice done if the construction placed upon this Act should be capable of operating as a species of premium to a person for divesting himself of funds before the making of the order, for the purpose of coming within the exception when he was least entitled to such protection. But there is a sensible and intelligible construction to be put upon the clause, if you read it as pointing to a person who, by the common course of a Court of Equity, is accountable for trust funds, which the Court treats him as having in his possession until he has properly discharged himself of those funds.

Observe the extremely inconvenient consequences which would arise if we were to look to anything beyond that order. The common form of order is for the payment of a sum of money into Court on admission, by the answer, that the defendant has a sum of money in his hands. Nobody ever dreamt of setting out in his answer that he had had so much trust funds in his hands, and discharging himself by saying that he properly accounted for a portion, and as to the rest he has squandered it. Nobody thought of putting in an answer in that form before the statute was passed; but if we were to hold that the effect of the statute was to give protection from imprisonment in such a case, every answer of a defaulting trustee in future would contain a statement admitting his liabi lity, but claiming the benefit of the statute because, having made away with the money, it is de facto no longer in his possession or control. The intention of the legislature was that the Court should look to see what had been done on the face of the order, and finding an order upon the defendant for the payment of 4,000l., and nothing more stated on the face of it, it would necessarily treat that order as having been made because he was wrongfully in possession of the money. That would be a plain and simple construction, and one which would be

capable of being placed upon the Act of Parliament; but if the Court is to be put to finding out whether the person has really possession of the money, what construction are you to give it? Are you to say that he is in possession of the particular sum in bank notes numbered or in a bag of gold which can be traced, and if he is not found in possession of those notes or that bag of money, he is not within the exception to the Act? If he has spent all the money and has none at his bankers, but has landed estate to the value of 100,000l., can you say that he has not money in his possession because he has parted with the actual notes or gold paid to him? I think that would be too narrow a construction, and I confess I think the true construction of the act is that when an order has been made on a person by a Court of Equity of competent jurisdiction for the payment of a sum of money as a trustee or as being in a fiduciary position, then all you have to look at is the fact of that order being so made upon him, and you treat that order as being made upon a person having that sum of money, inasmuch as he received and never discharged himself of it.

But then the principal part of Mr. Higgins's argument is this:-He says, Why are those words added at all? Why does the section say, "in his possession or subject to his control?" Why not say "an order made by a Court of Equity for the payment of a sum of money?" I apprehend very good reasons might be given for that. I think the case of wilful default is one of those pointed at. A defendant is ordered to pay a sum of money which, but for his wilful default, he might have received, but it is not a sum of money that he ever had in his possession; he has never by his neglect or default been enriched in any way whatever, and there is nothing of that moral delinquency which is involved in receiving money and afterwards disposing of it in such a manner that those for whom he received it cannot get the benefit of it, but it is merely that by carelessness or otherwise the person has not duly exerted himself in procuring that money to be paid which should have been paid. That would be a case in which a person would

not be within the exception from the benefit of the clause, but would have the benefit of the clause to its fullest extent. So, again, with regard to the word control, there might be money in a man's control which had never been in his possession, such as money of a testator in a bank after an executor had proved. That would be money not in the executor's possession, but it would be entirely under his control, and the Court might order him to pay that money. Therefore, those words, were inserted for the purpose of placing the person who had received the money, and was actually in possession of it, in the position of any other trustee.

Now comes a part of this case which creates a great difficulty, which we all feel to be insuperable. This is an order made by the Court by consent for payment of an admitted balance. That I should treat as meaning admitted to be in the defendant's possession. If it stood there alone there would be no difficulty, but unfortunately the order on the face of it tells us what is the composition of that balance; it is an aggregate composed of two sums, one principal, and the other interest, but we have no account of how much is principal and how much interest. The defendant is accountable for the whole sum, but so much of it as represents interest has never been in his possession in any sense whatever. It may be that he has made no interest, or he may have made 24 per cent. by placing it at a banker's at call, whereas the Court would charge him with 4 or 5 per cent. as the case may be. The interest was no part of the sum, which we can say was, on the face of the order, in his possession, and therefore we have not an order of a Court of Equity shewing it to be money in his possession, and directing him to pay that sum of money. It is said that the amount could be ascertained, but I apprehend there would be the greatest possible difficulty in ordering an attachment to issue as to a sum which includes, on the face of the order, something which does not come within the exception of the statute. The defendant is clearly entitled to the benefit of the statute as to so much of the sum as was composed of interest, and he has been arrested in respect of a sum, as to part of NEW SERIES, 40.-CHANC.

which he is entitled to be protected, and as to part of which he is not. I take it that those who want to put the law in force against him must be in a position to produce an order which takes the case out of the operation of the 4th section. It seems to me that such an order is not now produced, and for that reason it will be necessary to discharge the order for attachment. Of course there will be no costs.

JAMES, L.J., and MELLISH, L.J., concurred.

Will-Codicil-Condition that a Married Woman should " cease to reside"-Invalidity of the Condition.

A testatrix made a codicil to her will as follows:-" I direct all interest given by my said will to my niece, Elizabeth, the wife of William Wilkinson, shall pass, as in my said will named in case of her death, should she not cease to reside in Skipton within eighteen months of my death":-Held, that the condition as to non-residence was void.

SPECIAL CASE.

Emily Musgrave, of Skipton, in the county of York, by her will, dated the 22nd day of March, 1867, devised and bequeathed her residuary, real, and personal estate to her niece, Elizabeth, the wife of William Wilkinson, and William Wallis, upon certain trusts, for the benefit of the niece, Elizabeth Wilkinson, for her life, for her separate use, independently of her husband, with remainders and limitations over, in favour of the niece's children and remoter issue. The niece was to take upon herself the office of trustee and executor under the will, and to continue to act therein until incapacitated otherwise than by voluntary retirement from the trust; and the observance of that condition was to be a condition precedent to the trust in favour of the niece and her children and remoter issue taking effect. By a codicil dated June 7, 1869, the testatrix directed as follows:-"I direct all interest given by my said will to my niece, Elizabeth, the wife of William Wilkinson, shall pass, as in my said will named in case of her death, should she not cease to reside in Skipton within eighteen months of my death."

The testatrix died on July 23, 1869. The niece and Mr. Wallis (the other executor and trustee) proved the will and accepted the trusts of it. Mr. Wilkinson, the husband of the niece, carried on business with his brother as a corn miller at Skipton, and it was essential to the welfare of the business that he should continue to reside in his own house there.

On January 18, 1871, the niece left the

First. Whether Mrs. Wilkinson had, under the circumstances, complied with the direction contained in the codicil, so as to entitle her to continue to receive the interest conferred on her by the will?

Second. Whether she would incur a forfeiture under the codicil if she returned to Skipton and resided there?

Mr. Dickinson and Mr. W. W. Karslake, for Mrs. Wilkinson, the plaintiff in the case. There are three questions herefirst, whether the codicil is not too vague in its terms to be construed by the Court? second, whether, if it can be construed, the condition thereby imposed on plaintiff is a valid one? third, whether, if it is, the plaintiff has not sufficiently complied with it?

First. The will and codicil must be read together. By the will a condition precedent is imposed on the plaintiff, which she has fulfilled; and so far as anything more may remain to be done by her, in respect of that condition, she is ready and willing to do it. But, that condition being fulfilled by the plaintiff, the property left by the will is completely vested in her. To devest it there must be found in the will or codicil a clause at least as plain as the vesting one. But the only clause is the codicil in dispute, which is very obscure in its language. For what is the true meaning of the word "reside"?

Fillingham v. Bromley, Turn. & R.

530;

Clavering v. Ellison, 29 Law J. Rep. (N.S.) Chanc. 761; s. c. 7 H. L. Cas. 707; affirming 25 Law J. Rep. (N.S.) Chanc. 274; Ibid. 335; s. c. 3 Drew. 451;

shew how difficult it is to explain that word; and that vested estates, liable to be devested in vague terms only, will not readily be defeated. Then again, the con

dition in the codicil is a condition subsequent; and such conditions, even if plainly expressed, are never favourably regarded by the Court. Taking, therefore, both the will and codicil together, the latter is much too indefinite for this Court to say what it really means.

Secondly, the condition in the codicil is contrà bonos mores, being one for the separation of husband and wife, and tending to produce differences between them. By the civil law such a condition, whether precedent or subsequent, is inoperative and void; and the principles and authorities of the civil law are allowed, to a certain extent at least, to influence cases of the present kind

Wren v. Bradley, 2 De Gex & S. 49-54; s. c. 17 Law J. Rep. (N.S.) Chanc. 172;

Brown v. Peck, 1 Eden, 140.

A married woman cannot reside apart from her husband-where he resides, she resides. If this condition is held good, the Court will be virtually authorising the wife to live separate from her husband, when the Ecclesiastical Courts will assuredly compel her to do just the reverse.

Thirdly, even if the condition is good, the plaintiff has, de facto, ceased to reside at Skipton within the prescribed limit of time, and has, therefore, sufficiently complied with the condition.

Mr. Graham Hastings, for Mr. Wilkinson, supported the plaintiff's case.

Mr. T. N. M. Lawrence was for Mr. Wallis.

Mr. Karslake and Mr. Alexander, for the children of Mrs. Wilkinson.-First. This codicil is not too vague in its terms to be construed by the Court. No doubt the will and codicil must be read together, and when they are, it will be seen at once that the true objects of the testatrix's bounty were the plaintiff's children. That is a very important feature in the case. Then, in what respect is the codicil too vague? The word "reside" means to live," "to dwell," "to establish oneself" in any place. There is no difficulty in understanding that

66

Dunne v. Dunne, 3 Sm. & G. 22; s. c. on appeal, 7 De Gex, M. & G. 207; Doe d. The Duke of Norfolk v. Hawke, 2 East, 481.

Secondly, this condition is a perfectly valid one. There could be no question of that, if it were imposed on a man. It is imposed on a married woman, who takes a life interest to her separate use in the property subject to it. As to the property, therefore, she is a feme sole, and why then is not the condition an equally good one in her case as in that of a man? It was said-"No: it is bad-because it tends to separate husband and wife." But that is not so. The residence of the wife is to be made at the choice of the husband -and if he elects for her to disobey the condition-he can control her, and the forfeiture arises. As to the statement that the condition leads to matrimonial quarrels, it need not necessarily do so; and surely the plaintiff can prevent that? The cases cited on behalf of the plaintiff do not apply to this one

Brown v. Peck (ubi supra)

was so long ago as 1757, and the facts of it were not at all like those of the present case. This condition is, therefore, a valid one; and the forfeiture which has been incurred operates as an acceleration of the gift over of the property to the children of the plaintiff.

Thirdly, the plaintiff has not sufficiently complied with the condition. The word "reside means not only "to live," "to dwell," "to establish," oneself at any place, but to do so "permanently.' Here the testatrix has fixed the limit of eighteen months from her death as that period within which, if the plaintiff meant to secure the benefits given to her, she was to elect to fix on her abode at some place other than Skipton; and looking at the length of time given for the plaintiff to make up her mind where she would ultimately live, it is impossible to suppose the testatrix meant that the mere visit of a day to some other place, followed by a return to Skipton, should be a compliance with her wishes. For what would have been the result of that? Why, the very frustration of them. For the plaintiff's children, the ultimate objects of the testatrix's bounty, would thereby have been prejudiced. The condition may be a capricious one; but this Court has nothing to do with that. Suppose this condition had been that the plaintiff should