1850. VINCENT V. BISHOP OF delivery. In Johnson's Dictionary the word “seal” is de- Malins, in reply.-The term "publication" imports that the witnesses were informed at the time of attestation that the instrument was a testamentary instrument. The law on this subject has been settled by a series of authorities, which are recognised as binding in Doe d. Spilsbury v. Burdett (e). The cases of Wright v. Wakeford (f), Stanhope v. Keir (d), and Doe v. Pierce (b) shew that not merely the instrument but also the ceremony of publication must be attested. Since the Statute of Frauds, the witnesses attest all that is necessary to give the deed validity, viz. the ceremony of its execution. So here the witnesses must attest all that is required to be done by the donee of the power. "Publication," without signing, would be of no avail, then how can signing be sufficient without publication? If this had been a deed inter vivos, and the attestation had gone to the sealing only, or to the delivery only, that would not have been a valid execution of the power: Buller v. Burt(g). (a) 9 Sim. 629. (b) 6 Taunt. 402. (d) 2 S. & S. 37. (e) 9 A. & E. 936. (ƒ) 4 Taunt. 213. (g) Cited 4 A. & E. 15. 1850. VINCENT บ. BISHOP OF Sealing is no publication, for it does not communicate to the witnesses that the instrument is to operate after the death of the party executing it, but rather raises a presumption the other way. Besides, sealing was not required SODOR & MAN. by the power, and was therefore a mere nugatory act. [He also referred to Simeon v. Simeon (a), Bartholomew v. Harrison (b).] Cur. adv. vult. The judgment of the Court was now delivered by ALDERSON, B.-We shall certify, in this case, to the Vice-Chancellor, that we are of opinion that the power was well executed. By the settlement, on the marriage of the Dean of Westminster with Miss Susanna Short, a power was given to that lady, during coverture, by any deed, sealed and delivered in the presence of and attested by two or more witnesses, or by her last will signed and published in the presence of and attested by two or more witnesses, to appoint certain property therein mentioned to such uses as she might choose. It appears that, by her will, dated the 17th February, 1826, she made such appointment. The attestation clause is as follows: "Signed and sealed in the presence of Humphrey Pritchett" and "Mary Eames." The question is, whether this is sufficient. It depends on the state in which the law was left by the case of Burdett v. Spilsbury, in the House of Lords. We are unable to see how, after that decision, the law previously considered to be established by the well-known case of Wright v. Wakeford can be considered as in force. It seems to us that it was by the decision of Burdett v. Spilsbury really overruled. Now, if that be so, it would be quite clear that this power was well executed. But we are embarrassed by 1850. VINCENT v. certain dicta of the noble lords by whom the decision of Doe v. Spilsbury was pronounced, in which they say they do not mean to overrule Wright v. Wakeford, but leave BISHOP OF SODOR & MAN. its authority untouched, and to confine their decision to the cases where the attestation is general, and omits altogether all mention of the formalities required by the power to be attested. But, even if this be so, we still think this power was well executed. It is conceded that the attestation need not follow the words of the power literally. Where the power given is to be exercised by signing and publishing a will, and by having an attestation of both these formalities, it would clearly be well executed, if the attestation expressed that it was signed and delivered; and this was expressly so determined by this Court in the case of Ward v. Swift, and by Vice-Chancellor Shadwell in Simeon v. Simeon. Now what is the principle which governs these decisions? We think it is this; that if the attestation express, in any form of words, an act to have been done in the presence of witnesses, by which the complete execution of the instru ment, as required by the power, appears to have been effected, it will be sufficient; but that, where the framer of the power requires two or more such acts to be done, then if the attestation expresses only the doing of one of them, even though all persons would clearly infer that the other act had also taken place, it will not be sufficient. For in this latter case, it is clear that the framer of the power really intends something more than the act expressed in the attestation, because he has expressly added the other. Thus, in this case, he requires both signing and publishing. The signing, therefore, in the presence of witnesses, though it might naturally and reasonably be also called a publishing, will not alone do, for he expressly says, the will is to be signed in the presence of witnesses, and also published. But here it is both signed and sealed in their presence. Now if sealing in the presence of witnesses be naturally and reasonably to be considered as a publication, and we think it may be so 1850. VINCENT v. considered, then we have enough in this attestation to fulfil the whole power, for it is signed in the presence of two witnesses, and it is published also, if being sealed in the presence of witnesses amounts to a publication. And both SODOR & MAN. these acts are here stated in the attestation. We therefore think, for these reasons, that this power was well executed, and shall certify accordingly. The following certificate was afterwards sent to the ViceChancellor (a): "We have heard this case argued by counsel, and have considered it; and we are of opinion that the said Susanna Ireland's will, or appointment in the nature of a will, was a due execution of the power of appointment limited or given to her by and contained in the indenture of settlement dated January 28, 1794. "FRED. POLLOCK. "R. M. ROLFE. "T. J. PLATT." (a) The following certificate had been previously sent to the ViceChancellor by the Court of Common Pleas upon a case sent for the opinion of that Court: "This case has been argued before us, and we are of opinion that Susanna Ireland's will (or appointment in the nature of a will) was a due execution of the power of appointment, limited or given to her by and contained in the indenture of release and settlement of the 28th of January, 1794." "THOS. WILDE, "W. H. MAULE, "C. CRESSWELL. "E. V. WILLIAMS." BISHOP OF 1850. June 17. IN THE EXCHEQUER CHAMBER. (In Error from the Court of Exchequer). THE THAMES HAVEN DOCK AND RAILWAY COMPANY v. BRYMER and Others, Assignees of BROMLEY, a Bankrupt. A declaration THIS in covenant by the assignees of B., a bank rupt, stated, that by a deed between B. of the first part; D. and S. his wife, of the second part; V. was a writ of error brought upon a judgment of the Court of Exchequer (a). It was an action of covenant, brought by the plaintiffs below as assignees of one William Bromley, a bankrupt, against the defendants below, on a deed made to the bankrupt. The declaration stated "that whereas, heretofore and be and the said B., described as trustees, of the third part; and the Thames Haven Dock and Railway Company, the defendants, of the fourth part; after reciting that certain persons on behalf of the Company had agreed to buy certain premises, and that B. had agreed to sell the same, it was witnessed, that, in consideration of a certain sum already paid to B., and in consideration of the further sum of 29361. to be paid to B., and to V. and B., according to their respective rights and interests in the premises, on or before the 25th of March, 1844, B., D., S., and V. agreed to sell the premises; and that B. would, at his own expense, deduce a good title to the same; and that B., and all other necessary parties, would, on or before the said 25th of March, on payment by the Company of the said sum of 29367., at the costs and charges of the Company, execute and procure to be executed a proper conveyance for conveying the fee-simple of the premises; and that the Company thereby agreed with B. that they would, on or before the said 25th of March, and on the execution of such convey. ance, pay the said sum of 29367., and until payment of the said sum would pay interest on the same to B. and his assigns; that the 25th of March had elapsed, and although B. before his bankruptcy, and the plaintiffs as his assignees after it, were willing and ready to deduce a good title, and though B. and the necessary parties were ready and willing, on payment by the defendants of the said sum of 2936l., to execute a conveyance, and would have done so, but that the defendants discharged B. and the plaintiffs from deducing such good title, and from executing such conveyance. The declaration then alleged as a breach, that the defendants did not prepare a proper conveyance, nor pay to B. or to the plaintiffs the sum of 29361., or any part thereof :-Held, on error, affirming the judgment of the Court of Exchequer, on special demurrer to the declaration, first, that the assignees of a bankrupt, suing on a deed made to the bankrupt, are not bound to make profert of the deed; secondly, that the breach, that the defendants had not prepared the conveyance nor paid the money, was good, for, as the deed provided that the conveyance was to be at the costs and charges of the defendants, it lay on them to prepare it; thirdly, that the execution of the conveyance and the payment of the money were concurrent acts; but that the deduction of a good title by B. was neces sarily a condition precedent to the preparation of the conveyance, as the conveyance could not be properly prepared until the title was deduced; fourthly, that the averment that the defendants discharged B. and the plaintiffs from deducing title, though not alleged to have been under seal, was sufficient on general demurrer; and, lastly, that it was not necessary to point out the respective interests of B. and others in the money to be paid, as the covenant was not a covenant to pay the principal sum to B. and the others according to their respective interests, and the interest to B., but was a covenant to pay to B. both principal and interest. (a) 2 Exch. 549. |