were in the house when the negotiations for the purchase commenced.

The plaintiff thereupon filed a bill for specific performance, to which the defendant demurred, alleging as one cause of demurrer that it appeared by the bill that neither the alleged contract, 6. nor any memorandum or note thereof in writing, has been made or signed by this defendant or by any other person thereunto lawfully authorized by this defendant within the meaning of the statute passed in the 29th year of King Charles II. for the prevention of frauds and perjuries."

On the 25th of May, 1874, the Master of the Rolls being of opinion that there was a good agreement within the Statute of Frauds, overruled the demurrer, but made the costs costs of the cause, on the ground that, "If people come to this court upon contracts founded upon letters in this imperfect way, they must not be surprised at there being a demurrer."

On the 6th of July following the defendant filed his answer, and the plaintiff having amended his bill, he subsequently filed an answer to the amended bill, but in neither answer did he plead the Statute of Frauds as a defence to the plaintiff's claim.

The defendant alleged that he had never been furnished with a copy of the list of excepted articles as entered in the books of the plaintiff's agent, but admitted that his solicitor had read over and made a substantially correct memorandum of the same.

On the 10th of November, the cause came on for hearing and the Master of the Rolls made an order that the plaintiff should specifically perform the agreement, and directed inquiries as to the damages sustained by the plaintiff by reason of the non-performance by the defendant, and as to whether any and which of the articles removed by the plaintiff since the contract were comprised within the exceptions mentioned in his agent's book.

From this decision the defendant appealed.
Fischer, Q.C., and Badcock, for the appellant.

Chitty, Q.C., and Caldecott, for the respondent, said that no doubt where a contract was denied it was not necessary to plead the Statute of Frauds, but in cases like the present where the contract was admitted, but it was said not to be in writing, then the defence of the statute could not be set up unless it had been pleaded: Macdonald v. Longbottom, 7 W. R. 507, 1 El. & El. 977; Skinner v. McDouall, 2 De G. & Sm. 265; Homfray v. Fothergill, L. R. 1 Eq. 567, 14 W. R. Ch. Dig. 78; Mortlock v. Buller, 10 Ves. 292; Powell v. Elliott, 23 W. R. 777, L. R. 10 Ch. 424; Baskett v. Cafe, 4 De G. & Sm. 388. Ridgway v. Wharton, 2 W. R. 137, 3 De G. M. & G. 677, was relied on by the other side, but that case was disapproved in Heys v. Astley, 12 W. R. 24, 4 De G. J. & S. 34.

JAMES, L.J.-This case has been very fully, very elaborately, and very ably argued, and I have arrived at the conclusion that the decision of the Master of the Rolls cannot be supported. The Master of the Rolls, upon hearing the case, evidently proceeded, or thought it necessary to proceed, upon his decision upon the demurrer which was to the original bill, and I am of opinion that that original decision upon the demurrer was not well founded; that too much was inferred, and too much was guessed by way of inference, for the purpose of making out that to be an agreement in writing, as alleged by the original bill, which was not an agreement as made out from the letters. [His lordship having read passages from the letters and evidence, continued:-] I am therefore of opinion that there was not any sufficient agreement in writing to comply with the Statute of Frauds. It was said that it was too late to take the objection of that statute, because there was no such objection taken by the answer. Now, with refer

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ence to that point of pleading and practice, several cases were cited to us which are not altogether consistent with one another. It appears, however, from the preponderance of authority, that the objection must be taken by the plaintiffs, otherwise it cannot be taken for the first time at the hearing, and probably if this case had stood so it might have been too late to have taken the objection. But I cannot myself conceive that that can by any possibility apply to a case like the present in which the objection has been taken absolutely by demurrer on the very ground that there is not an agreement within the Statute of Frauds, and in which the demurrer has been overruled by the court below, from whose ultimate decision the appeal is now made to us. The reason why the objection must be taken before the hearing or taken by answer, if not previously, is that possibly the plaintiff might have amended his bill by alleging a parol agreement part performed, or something or other which would have enabled him to have compelled performance notwithstanding the Statute of Frauds. But if that objection has been clearly and distinctly taken by demurrer although that demurrer has been overruled, it seems to me it would be idle to expect a man to repeat the demurrer when some additional thing, not affecting the statement of the contract, has been put in by way of amendment, or to make it necessary for him, by his answer to the interrogatories, to repeat that of which he has already given distinct notice to the plaintiff that he insisted upon, and means to insist upon, namely, that there is no contract within the Statute of Frauds. No authority has been cited which shows that a man is obliged to go on repeating an objection once clearly and distinctly taken. I am of opinion, therefore, if it depended upon that, it is not too late now to repeat the objection which was taken in the court below upon demurrer and, were it necessary, we could now give leave to appeal from the demurrer so as to take it again, for I cannot conceive that it would be right to allow a man who has taken the objection, to lose it because he has not gone on verbosely repeating it a second time on a subsequent occasion. I do not think it necessary absolutely to determine the question upon the Statute of Frauds, because it appears to me, now that we have the whole of the correspondence before us, and the whole of the evidence before us, that the two parties never were ad idem, that they really meant never to bind themselves to the same contract, to the same thing. [His lordship having stated the facts of the case, continued as follows:-]

I am of opinion, therefore, that the plaintiff has not made out the agreement which he alleges by his bill, and the correspondence contained in it, for the sale of the house and furniture as alleged by him, and having failed in that, I am of opinion that the suit ought to be dismissed, and dismissed with costs.

MELLISH, L.J., and BAGGALLAY, J.A., concurred.

Solicitors, Shum, Crossman, & Crossman; Cope, Rose, & Pearson.

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From Chan. Div.

Feb. 2, 19; March 17.

WAKE v. VARAH.

A testator gave his his residuary estate to trustees in trust for his three children, W., A., and M., in equal shares, for their respective lives, and after the death of each of themin trust as to the share of the child so dying for the issue of such child as he or she should appoint, and in default of appointment in trust for his or her children equally; and he directed that in case and so often as any of his said three children should die without leaving issue such child's share as well original as accruing should be in trust for "the survivors or survivor" during their, his, or her respective lives or life equally; and after the death of each such "survivor" the surviving or accruing share to which such "survivor” for the time being should become entitled for life under the trusts aforesaid was to be in trust for the issue of such survivor as he or she should appoint, and in default of appointment in trust for all his or her children, in equal shares. And in case all the testator's said three children should die without leaving issue then in trust for the representatives "of the survivor."

W. died first without issue; A. died next leaving children; M. died last without issue.

Held (affirming the decision of Hall, V.C.), that the whole of the corpus passed on the death of M. to the children of A.

This was an appeal from an order made by Hall, V.C., on the further consideration of the cause, the question being what was the true construction of the will of Mr. John Woodhouse, dated the 18th of July, 1835.

The case is reported ante, p. 21, where the material parts of the will and the facts will be found.

The plaintiff appealed.

Dickinson, Q. C., and C. Gould (Owen with them), for the appellant, said that the question turned upon the true meaning of the word "survivors," which, in the absence of a clear or necessary intention to the contrary shown by the rest of the will, must be read literally. The result of so reading it would be that there would be an intestacy as to the corpus of the share of the testator's daughter Mary Ann, who survived his other two children, and died without having had issue. If she had died leaving issue, the gift to them would have been direct. The contention of the other side was that on Mary Ann's death without issue her share passed to the children of her sister Ann, who had pre-deceased her, because Ann, if she had been still living, would have taken that share for life under the words "survivors or survivor," and then on Ann's death leaving children those children would have taken. But in the events which had happened to change" survivors or survivor" into "others or other" would make nonsense of the will; for the children of Ann could only take this share after the determination of Ann's life estate in it, and, as Ann was already dead when that life estate would have commenced, to read the word "survivor" in the way proposed would be equivalent to saying that a deceased person could take a life estate in a fund. The case on which the other side chiefly relied was Waite v. Littlewood, 21 W. R. 131, L. R. 8 Ch. 70, but even if that decision was right the whole will showed that that was the testator's intention much more clearly than it did here.

And see,

in support of the appellant's contention, Leeming v. Sherratt, 2 Hare, 14, 24; Re Corbett's Trusts, 8 W. R. 257, Johns., 591, 599; and Winterton v. Crawfurd, 1 Russ. & My. 407, 411. [JAMES, L.J.-Suppose A. dies leaving children, then B. dies without children, and then C. dies leaving children. Clearly C. takes a

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life interest in the whole of B.'s share; and then you say that on C.'s death A.'s children would take nothing more than what they had already got?] That was the appellant's argument. There was no ultimate gift in the will of an accrued share, except to the persons who were to take in succession to the persons to whom that accrued share was given for life. Those persons in the case supposed would have been C.'s children, and if C. died without children there would be an intestacy.

Cookson, Q.C., and T. F. Kirby, for two of the children of the testator's daughter Ann, said that to make survivorship the leading idea in this will would be to create an intestacy in a great many contingencies which might naturally have been foreseen when the will was framed. The leading idea was not to provide for the survivors, but for every stirps. And the courts had attrib

66

uted such an intention to a testator in his use of the word survivor in other cases besides Waite v. Littlewood, 21 W. R. 131, L. R. 8 Ch. 70: see Badger v. Gregory, 17 W. R. 1090, L. R. 8 Eq. 78; and Hurry v. Morgan, Re Corbett's Trusts was referred to. 15 W. R. 87, L. R. 3 Eq. 152, 156, where the decision in The case of Milsom v. Audrey, 5 Ves. 465, was not good law, and was disapproved of in Re Arnold's Trusts, 18 W. R. 912, L. R. 10 Eq. 252. The testator clearly intended that there should be equality between the three stirpes, though it may be doubtful whether he intended equality between the tenants for life.

Eddis, Q.C., and C. Barber, for the other child of the testator's daughter Ann, said that it was only in the event of all his children dying without issue that the testator intended the gift to go over, and then, going back to the prior gift, if the words were read as "other or others" the whole will became clear, and was consistent with the gift over: see Re Tharp's Estate, 11 W. R. 763, 1 De G. J. & S. 453. [JAMES, L.J., said that case seemed much in point.] Also Doe v. Wainewright, 5 T. R. 427, 431.

C. Gould, in reply, referred to Dorin v. Dorin, 23 W. R. 570, L. R. 7 H. L. 568.

Cur. adv. vult.

March 17.-BAGGALLAY, J.A.-The testator in this cause, by his will dated the 18th of July, 1835, made certain dispositions of his residuary real and personal estate in favour of his three children and their issue; and the question involved in the present appeal is whether, according to the true construction of the will, and in the event which has happened of the longest liver of the three children dying without having been married, here is an intestacy as regards that portion of the corpus of the testator's estate to the income of which such child was entitled for life, or whether the same is effectually disposed of by the will in favour of the children of the testator's daughter Ann, who was his only child that left issue.

The appellant, who is the plaintiff in the cause, contends that a literal interpretation ought to be put upon the words "survivors" and "survivor" where they occur in the will, and that if such interpretation be adopted, the event which has happened is not provided for by the testator, and that there is consequently an intestacy.

The respondents, on the other hand, insist that it is evident, from the portion of the will in which the words occur, that they were not used by the testator in their literal sense, and that, inasmuch as the intention of the testator can be ascertained with reasonable certainty from an examination of the whole will, a modified or qualified interpretation should be put upon the language used by him so as to give effect to such intention. The decision of the Vice-Chancellor was in favour of the respondents, and from that decision the present appeal is brought. I think that the principle applicable

questions of this kind was accurately stated by Lord Hatherley when Vice-Chancellor in Re Corbett's Trust, 8 W. R. 257, Johns. 591, in which the question was whether the word "survivor" should be read as "other," and in which he expressed himself as follows :-"I am bound to say that the later authorities lean more strongly than the earlier ones to the strict construction of words, although in cases where it is necessary to do so in order to render a will intelligible, or where a clear and necessary inference can be drawn from the terms of the will, the court will not hesitate to construe the words 'survivors or survivor' as 'others or other.'"

What, then, is the proper construction to be put upon the testator's will in the present case?

The testator, after giving the income of his residuary estate to his three children, William, Ann, and Mary Ann, in equal shares, during their respective lives, directs that, upon the decease of each, the share of his property to the income of which such child shall have been entitled for life shall be held in trust for his or her children or more remote issue. Upon this it may be observed that the testator's three children and their issue were the primary objects of his bounty, and I think it a fair inference that he intended that there should be equality as between the three stirpes, and that as regards each stirps there should be a life estate followed by a distribution of capital amongst the issue of the tenant for life. Had any one or more of his children pre-deceased the testator, their issue, if any, would have been entitled, notwithstanding the failure of the life estate.

The testator, having thus provided for the event of each of his children having issue, proceeds next to provide for the event of any one or more of them dying without leaving issue, and it is upon the construction to be put upon these provisions that the arguments before us have chiefly turned. The testator directs that, on the death of any of his children without leaving issue, the survivors or survivor of them shall receive during their, his, or her lives or life, the income of the share to which the deceased child was entitled for life, and that, after the decease of each such survivor, the corpus of the surviving or accruing share to the income of which such survivor shall so become entitled for life shall be held in trust for his or her issue.

Now, as regards the estate for life which is thus given in an accruing share, it is immaterial whether the words "survivors or survivor" are literally interpreted or read as "others or other," since no child of the testator could take a life estate in an accruing share unless he or she survived the child whose death occasioned the accretion; but when we come to the gift to the issue, which is to take effect upon the determination of the life estate, we at once perceive that, if the literal interpretation be adopted, the title of the issue of a deceased child to participate in any benefit from an accrued share is made to depend upon the accident of their parent surviving the brother or sister whose share is given over, a provision of a most capricious character, and entirely inconsistent with the intention of the testator as indicated by the original gift.

But the adoption of the literal interpretation would not only lead to the capricious and unsatisfactory result to which I have just alluded, but would have resulted in an intestacy in several, not only possible, but prob- | able, events, including that which has actually occurred.

Now, what has occurred is this:-William, the child who first died, did not leave issue; Ann, who died next, left issue; and Mary Ann, who died last, was never married. Upon the death of Mary Ann, if the literal interpretation be adopted, there was, so far as the provisions to which I have as yet referred are concerned, an intestacy as regards the corpus, not only of her original share, but of the moiety of William's share to which she succeeded for life on his death without issue.

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But neither the consideration that a literal interpretation of the language used would lead to intestacy in particular events, nor the consideration that such an interpretation would lead to a construction which, if really intended by the testator, would have been capricious, would justify the court in attributing to the language used by the testator other than its literal interpretation, unless satisfied, upon a consideration of the whole contents of the will, not only that the language used was insufficient to effect his full intention, but that the will itself afforded sufficient evidence of what his intention was. Now, the provisions the effect of which I am now considering are introduced by the words, " In case and so often as any of my said three children shall die without leaving issue," thus indicating the intention of the testator to provide for the death of the longest liver of his three children as well as for the deaths of the two who should previously die. But if the words "survivors or survivor" receive their literal interpretation the death without issue of the longest liver is clearly unprovided for, inasmuch as on the death of the longest liver there can be no survivor. It is apparent, then, from these provisions alone, that the testator has not used language adequate to provide for all the events for which he has expressed his intention to provide. But though we may surmise in what way the testator would have supplied the deficiency had his attention been directed to it, these provisions afford no clear evidence as to what his intentions were.

But the next provision in the will supplies the necessary clue. It is as follows:-"And in case all my said children shall die without leaving issue as aforesaid, then in trust for the heirs, executors, administrators, and assigns of the survivor." From this it is evident, not only that the testator intended to provide, and considered that he had provided, in the previous portions of his will for all possible events in which any of his children might leave issue, but also that it was his intention, if there was any such issue, whether of one child or more, that such issue should become entitled to his property. 'If the clauses in the will which have given rise to the questions in this cause had been omitted, and this concluding clause had followed immediately after the original gift to the children and their issue, there could not have been any doubt but that cross-limitations should be implied between the testator's children and their respective issue. The judgment of Lord Justice Knight Bruce in Re Tharp, 11 W. R. 763, 1 De G. J. & Sm. 458, was to this effect; and the case, cited in argument, of Doe v. Wainewright, 5 T. R. 427, shows that a similar rule of construction was adopted at an early period in reference to a deed.

If this be so, can the fact that the provisions to which allusion has been made are interposed between the original gift and the gift over make any difference? I think not. These provisions, insufficient as they are to effect the testator's full intention, not only do not contain anything inconsistent with an implication of crosslimitations, but, on the contrary, so far as they go, they give effect to them.

Upon the whole, I am of opinion that, according to the true construction of the testator's will, the share, as well accrued (if any) as original, of any child who should die without leaving issue was to go over to the other children and their issue per stirpes, and be enjoyed by them in the same course of devolution as their original shares.

The practical result is, that the children of the testator's daughter Ann, or those who claim through them, became entitled upon the death of Mary Ann to the fund of which Mary Ann was entitled to the income for life.

This was the view taken by the Vice-Chancellor, who, in the course of his judgment, referred to the case of Waite v. Littlewood, 21 W. R. 131, L. R. 8 Ch. 70, and ex. pressed his concurrence in what was said in that case by

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band it was

Held (varying the order of the president), that, without deciding whether or no the husband had a right to sell the settled property, the court would restrain him from doing so whilst the inquiry was pending, and an injunction until further order was granted.

This was an appeal from a decision of the President of the Probate, Divorce, and Admiralty Division of the High Court, reported ante, p. 489, where the facts are stated.

It is only necessary to add that before the decree for dissolution of marriage had been made absolute the wife had presented a petition for alimony, and for an alteration in the post-nuptial settlement, under which her On this petition an order had been made under which an inquiry was going on before the registrar at the time when the husband advertised for sale the property included in the postnuptial settlement.

husband took the first life interest.

Dr. Tristram and W. Barber, for the appellant.-The Divorce Division can now only grant injunctions upon the same principles and in the same cases in which the court of equity could have granted them before the passing of the Judicature Acts, and the court of equity would never interfere to restrain a voluntary settlor from selling land. That was laid down by Lord Eldon in 1811 in the case of Pulvertoft v. Pulvertoft, 18 Ves. 84, and that case has been followed ever since. [MELLISH, L.J.-That was on the ground that the court of equity does not interfere to protect a mere volunteer.] We submit that the ground was that although a court of equity will not help a volunteer to void his own act it will not prevent him from doing so. But the court has gone farther in Buckle v. Mitchell, 18 Ves. 100, where at the instance of a purchaser it decreed specific performance against the husband, who was the voluntary settlor, and the trustees. It has been held, too, in Daking v. Whimper, 26 Beav. 568, 8 W. R. Ch. Dig. 93, that the cestuis que trust have no equity against the purchaser as to the application of the purchase-money in the hands of the voluntary settlor. We submit, therefore, that when 22 & 23 Vict. c. 61 passed, the court of equity had no power to restrain a voluntary settlor from selling, and that no such power was conferred on it by that Act, for if it had been intended to take from him his statutory right it would have been clearly expressed in the Act. [MELLISH, L.J. -It is a mistake to call it a right. It is a right of the purchaser. The statute of Elizabeth was passed because it was thought the purchaser would be defrauded if he was not allowed to keep what he had purchased. That is why a court of equity does not interefere in favour of a volunteer. Here the interference is under an Act of Parliament, and it depends on the construction of that Act. I see section 5 of 22 & 23 Vict. c. 61, which is the section empowering the court to alter settlements, applies in terms to post-nuptial settlements as well as to ante-nuptial settlements. Now if, notwithstanding that section, a husband under these circumstances can sell the settled property, that section is utterly useless.] It would take effect on post-nuptial settlements of personal property, and on post-nuptial settlements of real property for valuable consideration, but not in cases like the present where there was no consideration, and where, as we submit, the court had no seisin. The president decided against us on the ground that a recital in this settlement referred to an ante-nuptial agreement, but it must be observed that the recital does not state that that agreement was in writing. [MELLISH, L.J.-But even if it were verbal, and it was subsequently repeated in writing in the settlement, surely that would stand under the Statute of Frauds? JAMES, L.J.-Was this an interim injunction ?]

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No, it was a perpetual injunction. [Dr. Spinks.-But then the question of the settlement in still before the registrar, and he will refer it to the court.]

Dr. Spinks, Q.C., and Bayford, for the respondent, were not called upon.

JAMES, L.J.-Without deciding any question, it seems to me that the property comprised in this settlement should be kept in statu quo is a mere matter of course. We do not give judgment against the appellant unless he provokes it, but at the present moment we simply say that it was quite right that this property should be kept in statu quo. If there is any ground for saying that the appellant has a power to sell it, he may ultimately take the opinion of the Court of Appeal.

Dr. Tristram.-Then we submit to an injunction until the registrar has made his report.

JAMES, L.J.-Until further order. The court must have power to keep this property while it is in dispute. The costs of this application must be paid by the appellant.

MELLISH, L.J., and BAGGALLAY, J.A., concurred. Solicitors, Milne, Riddle, & Mellor; Dean & Taylor, for Boothroyd & Son, Stockport.

ANDERSON v. THE BANK OF BRITISH COLumbia. Practice-Production of documents-Privilege-Unprofessional agent-Communication by agent to principal after litigation threatened-Judicature Act, 1875, ord. 31, r. 11.

A letter by an unprofessional agent to his principal, giving information relating to what the agent has done for and on account of his principal, is not privileged, although it is sent in compliance with the request of the principal made after litigation has been threatened or commenced against him respecting the matter on which he has required the information.

business in London, but had a branch bank in America. The defendants were a banking company, carrying on The plaintiffs, by their solicitors, made a claim to the London manager respecting a transaction which the plaintiffs had had with the branch bank, and threatened litigation if the demand were not complied with. Three days afterwards, and before instructing solicitors in the matter, the London manager telegraphed to the branch manager for particulars of the transaction, and later in the same day wrote to the solicitor of the bank requesting his attendance at the next meeting of directors with reference to the claim.

Held, that the letter written by the branch manager in reply to the telegram was not privileged.

This was an appeal from an order of the Master of the Rolls overruling the defendants' claim to treat a certain document as privileged, and directing them to produce it.

The plaintiffs in the suit, Messrs. Anderson & Co., alleged by their bill that the defendants, the Bank of British Columbia, who had a branch at Oregon in the United States, had improperly dealt with certain moneys in the hands of the Oregon branch by withdrawing them from the credit of an account in which the plaintiffs were interested, and carrying them over to another account.

In or before the month of September, 1874, the plaintiffs made a complaint to the defendant Ransom, the manager of the bank in London, stating the nature of their claim. On the 18th of September, 1874, the defend