and the survivor of them, during their, his, or her lifetime, and from and after the decease of such survivor, at the discretion of the trustees or trustee for the time being, to lay out and invest the said proceeds thereof in their or his names or name, on such security, either real or personal, as the said trustees shall, with such consent as aforesaid, in their absolute discretion, think proper, and do and shall, with such consent or at such discretion as aforesaid, from time to time alter, vary, and transpose the said stocks, funds, and securities into or for other stocks, funds, and securities of the same or a like nature."

The trusts were for the wife, as she should, notwithstanding coverture, generally appoint, and subject thereto, for her separate use, without power of anticipation; then to the survivor for life; then to the children; with an ultimate trust for the wife or her appointees, exclusively of the husband.

At the date of the marriage the £2500 had been lent by Sarah E. Anderson to Thomas Pickard on his note of hand, and after the marriage it was allowed to remain in his hands. He continued duly to pay or to account for interest on the same at 5 to his wife down to the 1st of January, 1871.

per cent.

On the 14th of February, 1871, the bill was filed by Mrs. Pickard against the trustees and Mr. Pickard, stating that a separation had taken place, and that the trustees alleged and insisted that the trusts of the settlement did not authorize them to leave the £2500 in the hands of Mr. Pickard, unless authorized so to do by the Court; and that the Plaintiff was desirous that the £2500 should remain outstanding on the personal security of the husband, she being satisfied with such security; and praying that the trusts of the settlement might be carried into execution.

Mr. Kay, Q.C., and Mr. Martineau, for the Plaintiff :

The question is, what is the meaning of the words "real or personal security;" whether "personal" security means the security of personal property, or the security of somebody's personal undertaking.

One of the authorities is Forbes v. Ross (1), in the year 1788, where the words were "heritable or personal security," and it ap

V.-C. B.

1872

w

PICKARD

v.

ANDERSON.

1872

V.-C. B. peared that the testator had been used in his lifetime to place money at interest in the hands of Ross, one of the trustees. Lord Thurlow allowed the money to remain in the hands of Ross, who was a man of property, but directed him to pay the estate £5 per cent. interest.

PICKARD

v.

ANDERSON.

Another is Langston v. Ollivant (1), in 1807, where Sir W. Grant, M.R., thought that the authority given to the trustees by the words "real or personal security," although the trustees were not rendered answerable except for wilful neglect and default, did not extend to an accommodation, which was what had there taken place.

These cases leave the matter in doubt.

Mr. Higgins, Q.C., and Mr. W. Karslake, for the Defendants the

trustees.

SIR JAMES BACON, V.C.:

I think that the husband ought to execute a bond.

There will be a declaration that, upon his executing to the trustees a bond for the £2500 and interest at £5 per cent., they, with the consent of the husband and wife, are to be at liberty to continue the £2500 on such security until further order.

The costs of all parties as between solicitor and client will come out of the corpus of the fund; with liberty to apply.

Solicitors for the Plaintiff: Messrs. Emmets, Watson, & Emmet, agents for Messrs. Emmet & Emmet, Halifax.

Solicitors for the Defendants: Messrs. Hopwood & Sons.

(1) Coop. G. 33.

PROSSER v. BANK OF ENGLAND.

[1872 P. 12.]

33 & 34 Vict. c. 71, part iv., s. 24-14 & 15 Vict. c. 99, s. 14.—Bank of England-Fund in the joint Names of Three Persons-Death of One-Proof of Death.

.

Evidence which the Court of Chancery may now, in uncontested cases, consider sufficient to prove a death, is not necessarily binding and conclusive upon, or to be accepted as satisfactory by, the Bank of England. The bank has a discretion to exercise for its own protection and the benefit of the public; and this Court will not compel it, when exercising that discretion bona fide, to depart from its own settled practice.

Therefore, an injunction to restrain the bank from requiring an examined copy of a burial certificate purporting to be duly signed was refused.

MOTION.

The bill in this suit stated that by virtue of divers Acts of Parliament, charters, and provisions of Government made for the public benefit, and also for the profit of the Defendants' corporation, it was the duty of the Defendants to keep in proper books the names of all holders of Government annuities, and to enter in such books from time to time the names of all persons to whom any of such annuities had been transferred, so as to shew the amount of such annuities from time to time held by such persons respectively; and when any person in whose name any of such annuities had been standing (either solely or jointly with any other name or names) had died, upon reasonable evidence of such death being given to the Defendants, to denote in the said books such death, to the intent and purpose that the representatives of the deceased, or the survivor or survivors of the persons in whose names such annuities had been standing, as the case might be, might deal with the same by sale and transfer, or otherwise, as they might be advised. Prior and up to the death of Catherine Prosser (hereinafter mentioned) a sum of £2960 15s. 9d. New £3 per Cent. Bank Annuities belonged to her and the Plaintiffs jointly; and such sum was standing in the joint names of the said Catherine Prosser and the Plaintiffs in the books of the Defendants. Catherine Prosser died on the 17th of December, 1871, and was buried on the 22nd of December, 1871,

V.-C. W.

1872

Feb. 19.

V.-C. W.

1872 PROSSER

v.

at Llanvihangel Crucorney, in the county of Monmouth. On the day of her burial, and after the same had been duly entered in the register of burials for the parish of Llanvihangel Crucorney, an extract from such entry, purporting to be signed by the officer to ENGLAND. whose custody such register was entrusted, was obtained on behalf of the Plaintiffs. On the 3rd of January, 1872, a Mr. Hugh Roberts, who had been well acquainted with Catherine Prosser, duly made a statutory declaration, to which the extract from the register was annexed as an exhibit.

BANK OF

That declaration (omitting the merely formal parts of it) was as follows:

"1. I was for two years and upwards, previous to her decease, personally acquainted with Catherine Prosser, late of No. 13, York Place, Albion Road, Stoke Newington, and afterwards of No. 1, Park Lane Villas, Stoke Newington, in the county of Middlesex, spinster, deceased, mentioned in the paper writing hereunto annexed marked with the letter A, being an extract from the register book of burials belonging to the parish of Llanvihangel Crucorney, in the county of Monmouth.

"2. The said Catherine Prosser is the same person as Catherine Prosser who is mentioned and described in the books kept at the Bank of England for the New £3 per Cent. Annuities by the name and description of Catherine Prosser, of No. 13, York Place, Albion Road, Stoke Newington, spinster, in a joint account with William James Prosser, of Mount Pleasant House, Upper Clapton, gentleman, and Harry Curtis Nisbet, of No. 35, Lincoln's Inn Fields, gentleman."

No other sum of New £3 per Cent. Annuities, save the £2960 15s. 9d. aforesaid, was standing at the dates of her death and the statutory declaration, or either of them, in the books kept by the Defendants, in the name of Catherine Prosser jointly with the Plaintiffs.

The Plaintiffs, on the 3rd of January, 1872, duly transmitted the extract and statutory declaration to the Defendants, in order that the latter might enter in the said books the death of Catherine Prosser. Until her death had been entered in the books of the Defendants, the Plaintiffs would be unable to deal with the

£2960 15s. 9d. New £3 per Cent. Annuities, now solely belonging V.-C. W. to them on a joint account.

On the 5th of January, 1872, the Defendants gave notice to the Plaintiffs that they would not mark Catherine Prosser as dead in their books, alleging as a reason that the statutory declaration did not state that the extract had been compared with the original register for the parish where Catherine Prosser had been interred. The bill then set out a correspondence between the solicitors of the respective parties (to which it is unnecessary more particularly to advert), and proceeded thus: "The Defendants still refused to mark Catherine Prosser as dead in their books, or to recognise the right of the Plaintiffs to deal with the sum of £2960 15s. 9d. New £3 per Cent. Annuities, which sum was still standing in the Defendants' books, as it did prior to the death of Catherine Prosser. The Plaintiffs charged that the requisition of the Defendants, to the effect that every extract from a register of burials, duly signed by the proper officer in accordance with the provisions of the 14 & 15 Vict. c. 99, should be further verified by such statutory declaration of examination as hereinbefore referred to, was unjust and unreasonable; and that the Defendants ought to accede to the request of the Plaintiffs of the 3rd of January hereinbefore mentioned without further evidence."

The bill then prayed that it might be declared that the Defendants were not justified in requiring from the Plaintiffs any additional evidence of the death of Catherine Prosser beyond that furnished by the Plaintiffs as aforesaid, and that the Defendants ought to enter in their said books against the said sum of £2960 15s. 9d. New £3 per Cent. Bank Annuities a memorandum of the death of Catherine Prosser; that the Defendants might be restrained, under the order and direction of the Court, from permitting the name of Catherine Prosser to remain in their said books without the usual memorandum of death marked against it; and that the Defendants might be ordered to pay the costs of the suit.

The bank is a corporation established by Royal charter in 1691, and the management of the National Debt has been entrusted to it by several Acts of Parliament, now consolidated in the National Debt Act, 1870. The practice of the Defendants appeared, from the

1872

PROSSER

v.

BANK OF

ENGLAND.