would arise, if such a practice were to prevail, and urged that no case of exclusion had been shewn against the defendant. Calvert v. Adams, 2 Dick. 478; The MASTER OF THE ROLLS said, he would peruse the authorities, and state his opinion on a future day. March 28.-His Lordship observed, that there seemed to have been five or six orders made in different causes resembling the order sought on the present motion, and he should, therefore, grant the order asked. WIGRAM, V.C. Feb. 19, 20, 21, 25; HARBIDGE v. WOGAN. March 28. Marriage Settlement, Instructions forRectification-Fraud-Mistake. Previously to the marriage of the female plaintiff with H, verbal instructions were given by her to A, a solicitor's clerk, for the settlement of her property. A, who resided at a distance from B, his principal, took down the instructions in writing and forwarded them to B. to this effect: that the property was to be conveyed to trustees for the separate use of the lady for life, with remainder to H. for life, with remainder to the children of the marriage, and in default of children to W. (the brother of the lady) and his children. B, who was then unacquainted with the plaintiffs, sent instructions to counsel to prepare the settlement accordingly, but directed that a general power of appointment should be limited to the lady in default of children. The draft so settled by counsel was returned to A, who procured it to be engrossed. On A. tendering the engrossment to W. for his execution, as a trustee, W. objected to the power of appointment, and thereupon A. said that the power had been inserted by mistake, and immediately drew his pen through the clause, and so W. executed it. On the following day the deed was executed by the plaintiffs and the other trustee in the presence of A, and was attested in the common form without any notice of the erasure. Subsequently a second attestation clause had been added, referring NEW SERIES, XV.-CHANC. to the erasure, and the draft was altered to correspond with the deed. The marriage took place in July 1841, and in March 1842 the husband and wife filed their bill against A. and W. and the other trustee, charging that positive instructions were given to A. for the insertion of the power in question, and that it was struck out by the fraudulent collusion of A. and W, and praying that the deed might be rectified according to the intention of the parties, and for the appointment of new trustees, or that the latter might be declared trustees for the appointees of the wife. The defendant A. died before putting in his answer:-Held, that though the terms of the settlement alone did not furnish a ground for the relief prayed, yet those terms, taken in connexion with the circumstances, made it incumbent on W, in his position as trustee, not to allow the clause to be struck out without consulting the lady; and that an issue or an inquiry must be directed to ascertain whether, at the time of her execution, the lady was aware that no power was reserved to her of disposing of the property away from W. and his children. Where marriage articles provide simpliciter for the limitation of the wife's property to herself and her husband successively for life, with remainder to their children, with remainder over to strangers, the Court would primâ facie order the insertion in the settlement of a power of appointment to the wife in default of children; and it would be the duty of counsel preparing a settlement under similar instructions to insert such a power, or, at least, to call the attention of the parties to the propriety of introducing it. The bill was filed on the 9th of March 1842, by Mrs. Harbidge, by her next friend, and by Mr. Harbidge her husband, to have their marriage settlement rectified according to the intention of the parties. The bill stated, that previously to the intermarriage of the plaintiffs, in July 1841, it was agreed, that certain real and personal property, to which the lady was entitled, should form the subject of settlement; that instructions for a settlement were given to one Boulger (a defendant) who resided at S, and acted as the managing clerk of Mr. Robinson, a solicitor, practising at Wellington; and such instructions were, that the property should be limited to the separate use of the lady for 20 life, with remainder to the intended husband for life, with remainder to the children of the marriage; and, in default of children, that the lady should have a power of appointing the property by deed or will, and in default of such appointment it should be limited to W. Wogan (the brother of the lady) for his life, with remainder to his children in fee. That Boulger took down the instructions in writing, and forwarded them to his principal, Mr. Robinson. The instructions were then laid before counsel, who, in preparing the draft settlement, gave the lady an absolute power of appointment in default of issue of the marriage; that the draft was then returned to Boulger, who procured it to be engrossed, and that the engrossment contained the power of appointment; but before the execution of the settlement by the plaintiffs, the power in question was struck out by the fraud and contrivance of the defendants Boulger and W. Wogan. That by the settlement as executed, the property was conveyed to W. Wogan and the defendant Fletcher, in trust for the separate use of Mrs. Harbidge for life, remainder to Mr. Harbidge for life, remainder to the children of the marriage; and in default of such children, the property was limited to W. Wogan for life, with remainder to his children in fee. The bill then, after charging that positive instructions were given by Mrs. Harbidge to Boulger, that the settlement should contain a power of appointment to Mrs. Harbidge in default of children, prayed that the settlement might be rectified according to the intention of the parties by the insertion of the power in question, and for the appointment of new trustees, and that the defendants Boulger and W. Wogan might pay the costs of the suit. The defendant Boulger died before putting in his answer. W. Wogan, by his answer, insisted, that it was the intention of Mrs. Harbidge, who was of advanced age at the time of her marriage, to debar herself of all power of disposing of the corpus of her property, her intended husband then being in insolvent circumstances, and of a low station in life, and that the instructions given to Boulger were to that effect. That on the 6th of July 1841, the defendant called upon Boulger by appointment, and Boulger then produced the settlement and asked him to execute it; that, on Boulger's reading over the engrossment, the defendant perceived that it contained an absolute power of appointment, and he then told Boulger that it was not in accordance with what he had stated to him, and he, the defendant, considered that the settlement, as prepared, was useless; that Boulger then said, that that was true, and that it had not been prepared according to the instructions, but that the power had been introduced by mistake; and that thereupon Boulger, immediately, and of his own accord, struck the clause out of the engrossment. That the settlement, before execution, had been read over and explained to the plaintiffs. It appeared by the documents produced, that the original instructions, as taken down by Boulger, did not contain any directions for inserting such a power; but that the instructions laid by Robinson before counsel did, and that in the draft prepared by counsel such a power was inserted; that the engrossment also had contained the power; but that the clause, both in the draft and in the engrossment, had been struck through with an ink line; and that the attestation clause to the deed was in the common form, not noticing the cancellation; that a second attestation clause, taking notice of the cancellation, had been afterwards added, but at what time it did not appear. It appeared by the evidence of Robinson that before the draft came back from counsel he had an interview with Boulger, who then told him that he, Robinson, had given wrong instructions to counsel as to the insertion of the power; and that thereupon he told Boulger to erase the clause as soon as he received the draft; and that he, Robinson, had no knowledge of the parties, or of their intention, except from the instructions of Boulger, and that he inserted the power because it was usual, and he thought it might be useful in the event of Mrs. Harbidge marrying again. Subsequently to the institution of the suit the husband had taken the benefit of the Insolvent Act, and his assignee was brought before the Court by supplemental bill. Mr. Romilly and Mr. Rogers, for the plaintiffs, contended, that as the intentions of the parties had not been carried out by the settlement, the Court, on the ground of mistake, would rectify the deed. The Marquess of Breadalbane v. the Marquess of Chandos, 2 Myl. & Cr. 711; s. c. 7 Law J. Rep. (N.S.) Chanc. 28. The Duke of Bedford v. the Marquess of Abercorn, 1 Myl. & Cr. 312; s. c. 5 Law J. Rep. (N.s.) Chanc. 230. Pearce v. Verbeke, 2 Beav. 333; s. c. 9 Law J. Rep. (N.S.) Chanc. 203. Mr. Tinney and Mr. G. L. Russell, for W. Wogan and his children.-The case made by the bill is a case of fraud and concert only, and upon this record the Court is not in a condition to adjudicate upon the question of mistake. But, however that may be, no mistake is proved; but there is some evidence that the lady intended to debar herself of the power of disposing of the property; and the circumstances of her intended husband shew the propriety of that course. Mr. Romilly, in reply.-If the object of the defendants had been to protect the wife, a proviso, restraining anticipation, would have been introduced into the deed; but this was evidently a scheme to secure the property absolutely to W. Wogan and his children. The death of Boulger, before answer, has involved the plaintiffs in a difficulty in proving a case of fraud; but, notwithstanding that, there is sufficient in the facts proved to warrant the Court directing an issue or an inquiry. Feb. 25.-WIGRAM, V.C.-It appears that previously to the marriage of the plaintiff Mr. Harbidge, with Letitia his wife, who is also a plaintiff, it was agreed that the real and personal property of Letitia should be the subject of settlement. A settlement was made; and, according to the terms of that settlement, the property was limited to the separate use of Letitia, for her life, with remainder to her intended husband, for life, with remainder to the children of their marriage; and, in default of children, to W. Wogan, the brother of Letitia, for life, with remainder to his children. The settlement contained no power, enabling Letitia, in the event of there being no children of the marriage, to dispose of the property, so as to defeat the ultimate limitation to W. Wogan and his children; and, ac cording to the terms of the settlement, subject to there being children of the marriage, the property would have vested absolutely in W. Wogan and his chidren. The bill, in this case, insists, that the settlement ought to have contained a power to Letitia over the property, so as to enable her to dispose of it in the event of there being no children of the marriage; and it insists that the bill, as engrossed, did contain such a power, but that it was afterwards struck out by the contrivance of the defendants, or some of them, and that, therefore, they are trustees for Letitia. The object of the suit is to have that power inserted. At the hearing of the cause I stated that there did not appear to me anything in the terms of the settlement alone which would enable me to give the relief prayed. It might be unreasonable that the power should be omitted, but, in the absence of express fraud proved against the parties, or some irregularity, there was nothing in the terms of the settlement to give the plaintiffs the relief asked; and I was of opinion that, on the ground of mistake merely, the Court could not give relief, for the power was once inserted and had been struck out; so that the case must rest upon fraud, if upon anything. I have since considered the case, and, though the terms of the settlement, standing alone, would not be ground for relief, it is impossible to deny that those terms may be a material circumstance to be considered, taken in connexion with other circumstances. For the purpose of the argument, suppose that the instructions given by Mrs. Harbidge to Boulger were, in substance, the same as those expressed in the instructions as they now stand; that is, to settle the property upon herself for life, with remainder to her husband for life, with remainder to her children, and if no children, then to W. Wogan and his children. The first question that arises is, if these instructions had been laid before a conveyancer of competent skill, in what way he would have acted upon them? In my opinion, which is confirmed by inquiry, a conveyancing counsel would have given the lady a power over the property, subject to the interest of her children, if any; or, at least, he would not have prepared the settlement without noticing the propriety of inserting such a power; and the Court, in the first instance, would have ordered a settlement with such a power. Now, the next consideration is, the way in which the case was dealt with. Boulger, who was not himself a solicitor, received, as the clerk of Mr. Robinson, the instructions from Letitia, and prepared a draft settlement literally in accordance with those instructions, and forwarded it to his principal, who did not himself prepare the draft settlement, but, converting the information he had received from Boulger into instructions, he forwarded them to his counsel at Shrewsbury; and in those instructions, he inserted the very power which the plaintiffs say ought to have been inserted in the settlement; and at the same time he put a note in the margin of the instructions, that he had inserted the power with reference to the possibility of the lady marrying a second time, and having children of a second marriage. That was not well considered in that view of the case, because if there had been one child of the marriage, it would have taken, in exclusion of any children by a second marriage. These instructions go before counsel, who prepares the draft accordingly, and inserts the power, which the plaintiffs say ought to be contained in the settlement. According to Robinson's evidence, in the interval between his sending instructions to counsel and the return of the draft, an interview took place between him and Boulger, when Boulger told him that no such power ought to be contained in the settlement; that the lady was fifty years old, and intended that the property should be settled absolutely upon W. Wogan and his children. If I am to give credit to that, it appears that Mrs. Harbidge told Boulger absolutely to deprive her of any power over the property; for the reservation of such a power would have been inconsistent with the absolute limitation to W. Wogan and his children. Upon Robinson being told this, he said to Boulger, "You had better then strike it out of the draft." Upon the draft coming back from counsel, it is received by Boulger, who thereupon caused it to be engrossed, without striking out the power. On the 6th of July 1841, W. Wogan, being then on a visit to Mrs. Harbidge, goes over to S, and waits upon Boulger, for the pur pose of executing the settlement. Boulger then reads over the settlement to W. Wogan, who immediately takes notice of the existence of this power. I have looked through Wogan's answer, to see if Mrs. Harbidge ever told him, that she meant to settle this property upon him absolutely; and I cannot, from anything that is there said by him, make out that she ever affirmatively said, "Deprive me of the power of dealing with this property." She is merely made to say, "I do not wish to have any more trouble about the property." Upon this power being noticed by W. Wogan, Boulger said, that she was not entitled to have the power introduced, and he immediately struck it out of the settlement; and in this state the settlement was executed by Fletcher, the other trustee, and by the husband and wife. As regards the husband, there is evidence, which I should not be dissatisfied with, that the husband read the settlement, and must have known that the clause in question was struck out, and he deliberately executed it with the knowledge of that fact. But the husband is not a plaintiff in respect of the power, but only upon the ground that a fraud has been committed, and so far as the bill seeks to have new trustees appointed. I cannot, however, find any satisfactory evidence, that the wife's attention was called to the fact, that this settlement did not contain the power in question. If instructions in exact accordance with the instructions said to have been given by her, had been sent to counsel, these would have led counsel to call her attention to it; if she meant the power to be excluded, cadit quæstio. In that state of things, Robinson thinks it right to have the power inserted; counsel inserts the power, and the draft is thus returned to Boulger, who takes the settlement containing that power, to be executed by W. Wogan. W. Wogan is in that position which prevents him from saying, that Mrs. Harbidge is bound by that which has taken place, because his position as a trustee made it his duty to say to Boulger, "You shall not strike out the power without consulting Mrs. Harbidge." The question is, whether Mrs. Harbidge, before the execution of the settlement, knew that the settlement did not contain that power. That question must be ascertained—whether before the execution of the settlement Mrs. Harbidge knew that the settlement did not contain a power enabling her to dispose of the property away from W. Wogan and his children. Whether that question should be tried before the Master, or an issue should be directed, I would rather leave to the parties to decide. The second attestation, I think, shews that Boulger was not acting a straightforward part. The draft is first engrossed with the power in it; the power is then struck out of the engrossment, and then the draft is altered accordingly by Boulger. March 28.-Mr. Tinney and Mr. G. L. Russell now applied to the Court, on behalf of the defendant, W. Wogan, to have the case re-argued, on the ground, that the Court had decided the case upon a principle which had not been raised upon the pleadings, nor in the arguments at the hearing; and that the plaintiffs, by stating a case upon positive instructions to insert the power in question, were estopped from resting their case upon the ground of implied instructions, and that the decision upon this latter ground was a surprise upon the defendant. WIGRAM, V.C.-I do not think that it is a sufficient ground to ask for a re-hearing, that the Court has decided the cause upon a view of its own, which was not raised in the arguments at the bar. It was the practice of a very eminent Judge to make no observation till the cause was over; but I have found it necessary, and still feel it right to do otherwise. A re-hearing is in the discretion of the Judge, and I do not feel any doubt in my own mind to call for a second argument. The facts upon which I founded my decision, are sufficiently stated in the bill, and proved in the evidence; and I do not think the plaintiffs are estopped, by having stated a case of positive instructions, from obtaining relief upon the ground of implied instructions. There is nothing inconsistent with the relief on either ground. The application must be refused, with costs. In this suit a decree was obtained, on the 26th of February 1845, whereby the plaintiff's bill was dismissed, with costs, and certain documents, which were, by consent, deposited with the clerk of records and writs, were ordered to be delivered up to the defendants R. B. Andrews and T. N. Abdy. One of the defendants, R. B. Andrews, died after the documents had been delivered up, and after the taxation of costs had been commenced, but before it had been completed. A bill of revivor was now filed by the personal representatives of the deceased defendant, there being no part of the original decree to be performed except the payment of costs. To this bill a plea was put in on the ground that the documents ordered by the original decree to be delivered up having been so delivered to the defendants, nothing remained to be done but the taxation and payment of the costs, and that a bill of revivor could not be filed for the sole purpose of obtaining costs. Mr. Bethell and Mr. Heathfield, in support of the plea, contended, that the rule of the court had been long established, that where a decree directed anything to be done, and then directed the costs to be taxed and paid, and where nothing remained to be done but the taxation and payment of costs, there a bill of revivor could not be filed. The only case in which a doubt was thrown upon the rule was that of Morgan v. Scudamore (1), but that had been overruled by (1) 2 Ves. jun. 313, and 3 Ves. 195. |