A husband and wife lived apart, and the wife had the care of one of their two younger children. The husband being desirous of raising money by mortgage of his settled estates, and being unable to do so on account of the existing charges thereon, applied to the wife to postpone her pin-money and jointure annuities to his proposed mortgages. The wife consented, provided that the husband would exercise a power of appointment which he had over a sum of 30,000l., in favour of his younger children, to the extent of appointing 5000l. to the child under her care. He accordingly did so by a revocable deed; and by a similar deed, dated the next day, reciting the former appointment, he appointed the rest of the fund to his only other younger child. The former deed only was communicated to the wife, and, she objecting to the power of revocation, it was cancelled, and a new irrevocable deed was prepared and executed of the same date as the former. The husband died before the mortgage which he proposed to make was effected.

On an attempt being made to

prove that the deeds were given to the family solicitor as escrows, not to take effect until the mortgage transaction was completed:

Held, that though, a priori, it was probable that the appointment of the 5000l. might have been so made, there was not the same probability as to the other appointment of the 25,000l.; and although a purchaser in the position of the wife would not have expected to have the deed of appointment of the 50007. delivered to him until the consideration was paid, that rule would not apply to the case of a mother seeking the benefit of one of her children, by inducing the father to exercise a power of appointment in the child's favour; and the evidence of the solicitor who prepared the deeds, to the effect that they were delivered to him as escrows, being unsupported by any other witness, being given fourteen years after the transaction, not very exactly, and being entirely contradicted by his conduct at the time of their execution, and subsequently, it was discredited, aud the deeds were considered to have been duly sealed and delivered.

Held, also, that although the bribe to the husband would affect the validity of the appointment of the 50007., yet that the appointment of the 25,000l. was not so connected with the former appointment as to be also invalid; nor indeed was the motive for the latter appointment the same as in the former case, for, instead of being an inducement to the wife to consent to the proposed arrangement, the second appointment, if revealed to her, would probably have prevented her concurring in postponing her pin-money and join

ture.

If a power of jointuring be exercised on a corrupt bargain for some

3. Under a power of appointment and selection among children, if an appointment be made upon a condition to be performed by the appointee, the appointment is good, but the condition is void.

But an appointment to child A. upon a certain contingency, and if that contingency should not happen, then the same share to go to child B., is a good conditional limitation under the power. So it is, if the event on which the shifting limitation is to take effect be some act to be done by A., if such act be consistent with the scope of the power; as if the limitation over be to take effect if A. do not, upon the request in writing of the appointor, make over another fund derived from a different source to the other objects of the power: for this is consistent with the intention of the power, which was, that the donee should, according to his view of the exigencies of the objects of the power, appoint the whole fund to all of them, or to some only in exclusion of the others.

If the condition be in form that

A. should do this upon the request not only of the appointor, but of his executors or administrators, it will be construed as if the limitation were inserted in the instrument creating the power; and where that provides that the appointment must be made so as to take effect within twentyone years after the death of the appointor, the condition will be valid.

A bill, in such a case, by a married woman, and the trustees of her settlement, claiming to be entitled to the share so appointed to her, freed from the conditional limitation, or, if bound to elect, for an inquiry whether it would be most beneficial for the persons entitled under the settlement to take under the appointment or not, is not an election. Stroud v. Norman, 313

4. Where a power of appointment is to be exercised by a writing under the hand and seal of the donee, it cannot be exercised by a will executed with only the formalities required by the 1 Vict. c. 26, because the essential requisition of the power is, that it should be exercised under hand and seal, and the statute applies to a power of which the essential requisition is, that it should be exercised by will, and the formalities are comparatively unimportant.

The reason that such a power would have been held duly exercised before the new Wills Act by a will under hand and seal was, because, under the general word "writing," it was indifferent by what kind of instrument the power was exercised, provided the essential solemnities were complied with. Buckell v. Blenkhorn (5 Hare, 131), not followed. West v. Ray, 385

POWER OF SALE. See DISENTAILing Deed, 2.

PRACTICE.

See AMENDMENT.

APPEAL, ORDERS OF 7TH AUGUST, 1852.

CHAMBERS, ORDERS OF 16TH OC-
TOBER, 1850.
COSTS, 1, 2.

EVIDENCE, 1, 2, 3, 4, 5.
EXCEPTION.

FRIENDLY SOCIETIES.
MORTGAGE.

MOTION FOR DECREE, 1, 2.
OFFICIAL MANAGER.
PARTIES, 1, 2.

PLEA.

PRODUCTION OF DOCUMENTS, 1, 2, 3.

SALE BY THE COURT.
STAYING PROCEEDINGS, 1, 2, 3.
TRUSTEE ACT, 1850, 2.
TRUSTEE RELIEF ACT.

PRIORITY.

See CHARGING ORDER.

PRIVITY OF ESTATE. See INJUNCTION, 2.

PROFITS.

See BENEFIT BUILDING SOCIETY.

PRODUCTION OF DOCU

MENTS.

See EXCEPTION.

1. The Plaintiff impeached a certain deed in the Defendant's possession, and stated in his bill that this Ideed had been left with the Defendant as a security for a loan of money which had since been repaid. The Defendant, in his answer, admitted the possession and relevancy of the impeached deed, and stated that it was a bonâ fide conveyance to him for valuable consideration, and denied that it had ever been so deposited with him as in the bill mentioned:

PROTECTOR.

Held, that, as the Defendant denied that he was a mortgagee, the Plaintiff's whole statement, that there had been such a mortgage, and that it was paid off, must be regarded; and that the Plaintiff was entitled to the production of the deed: secus if the Defendant had claimed the privilege of a mortgagee to refuse production of the deed.

If a title deed in the Defendant's possession be impeached, all subsequent documents which depend upon and proceed from it, may be required to be produced, as well as the deed itself; and, therefore, in a suit to set aside a conveyance of an equity of redemption to the Defendant, a receipt for the mortgage money obtained by him after the date of the deed must be produced. Jones v. Jones, App. vi

2. A Defendant will not be ordered to produce letters, which, together with other goods in a portmanteau, have been pawned by him before the commencement of the suit. Liddell v. Norton, App. xi

3. Under a decree in an administration suit, a creditor supported his claim in Chambers by the production of certain documents. The Plaintiff believing these documents to be forged, applied to have them deposited with the Chief Clerk, and for liberty to have them produced to be examined by scientific persons, to test their genuineness; and the application was granted, the creditor's solicitor being allowed to be present at such examination. Groves v. Groves,

App. xix

RESTRAINT OF TRADE. 755

devisee for life of a mansion house and estates to "reside" there for six months in every year, and imposing a penalty for breach of such condition, and if he should neglect to observe it for five years, devising the estate to others, rendered it necessary for the devisee to be personally present in the house 168 days in each year, in order to escape the penalty or forfeiture; but held, that it would be sufficient, if, keeping up an establishment at the house, he were merely to visit it each day; and that it was not necessary for him to spend a night there. Walcot v. Botfield, 534

RESIDUE.

See LEASEHOLDS, 1. WILL, 7, 8.

RESTRAINT UPON ANTICIPATION.

See POWER OF Appointment, 1.

RESTRAINT OF TRADE. Upon the sale of the business of a general merchant in a country place, the vendor agreed to give a bond for a sum of 1600l. as liquidated damages, if he should be thereafter concerned in any "trading establishment" within a neighbouring district, comprising a considerable section of the county of Cornwall:Held, that this was not too general a restraint of trade, and specific performance of the agreement was decreed at the suit of the vendor.

In construing the condition of such a bond, a Court of law would take into consideration the surrounding circumstances at the time of executing the bond, and would consider the words "trading establishment to mean an establishment for any trade likely to interfere with the

See TRUSTEE AND CESTUI QUE TRUST.

1. By a settlement in contemplation of marriage, reciting, that, the intended husband being entitled to certain real estate, it was agreed, on the treaty for the marriage, that he should secure to the intended wife in case she should survive him, a certain annuity by way of jointure "in manner thereinafter expressed," the husband demised certain real estate to trustees for a long term of years, upon the trusts thereinafter declared, and then covenanted that his heirs, executors, administrators, or assigns, should pay the jointure to his wife surviving him, upon certain specified days; and the covenant was followed by a declaration that the demised lands were to be held upon trust for the settlor until some default in making any of the payments of the jointure; and, in case of non-payment of

any part for forty days next after any day of payment, then, upon trust to secure the same:-Held, that, as between the real and personal representatives of the settlor, the land was the primary fund for payment of the jointure, because the jointure was not in satisfaction of any debt due from the settlor at the time of executing the settlement, nor had his personal estate been augmented by any consideration given for it; and therefore the presumption was, that a primary charge upon the land was intended; and that presumption was not rebutted by anything in the recitals, or in the form of the deed of settlement. Loosemore v. Knapman, 123

2. By a marriage settlement, the father of the intended husband agreed to settle a money bond and certain real estates on the intended husband and wife, during their joint lives; and, after the death of the husband, if the wife should survive, on her for life, and, after her decease or second marriage, upon the children; and it was agreed, that, if the husband should die before his wife, three trustees should be appointed to take care of the property for the child or children of the marriage. The marriage was solemnised, and there was issue of it. The husband's father died, leaving his son, the husband, his sole executor, who thereupon took possession of the bond, and deposited it with his bankers, who had no notice of the settlement, to secure a loan from them. The husband then died insolvent, leaving his wife surviving. In a suit concerning the trust property, trustees thereof having been appointed by the Court:-Held, that they might redeem the bond by raising money for that purpose out of other parts of the property included in the settlement. Sharshaw v, Gibbs,

333