resistance. All this may be conceded without in any degree affecting the question of the true meaning and construction of the deed. The just and lawful debts of Alexander Fraser due at his death are alone to be a burden upon the real estate. Under this description everything incidental to or inseparable from the debts would be included. For instance, suppose the debts bore interest, and interest accrued upon them after the death of Alexander Fraser, it would, as a matter of course, follow the principal, and contribute to increase the burden upon the real estate. But the costs and expenses of an action brought to enforce the payment of a debt are not necessarily incident to it, and when a person is providing for the payment of his just and lawful debts probably the last thing he thinks of is the idea of their becoming the occasion of litigation. Is there anything in the language of the deed to show that the testator has in his view anything beyond the debts themselves as a burden upon the real estate? I think rather too much stress was laid, in the argument, on the words employed to express the testator's meaning. It was said that the expression "shall in nowise affect or diminish his executry" manifested the intention of the testator that the executry should be discharged from every liability which in any manner might be incurred by reason of the debts due from Archibald Fraser; but the word "nowise" seems to have been used merely to intimate more emphatically that the debts themselves were not in any event to be paid out of the executry. The testator never having anticipated that any costs could be incurred with respect to the only debts in his contemplation, viz., the just and lawful debts of Archibald Fraser due at his death, made no provision for such an event. In the absence of any specific direction upon the subject, there is nothing to exonerate the executor from his original liability to satisfy such costs out of the general personal estate. If in this case the executor and the heir of entail had been different persons, the executor, upon actions being brought against him by the creditors of Archibald Fraser, might have given notice to the heir and taken his directions as to defending them, and have refused to make any defence unless the heir would guarantee him against the costs. But the same person being both executor and heir of entail, he could not by any act of his own shift the burden of the costs from the executry to the real estate. The narrow view, as it may be considered, which I have taken of this question renders it wholly unnecessary to advert to the distinction, acted upon in the court below, between the litigation being profitable or unprofitable to the real estate or the defences being proper or improper, as indicated by the award of costs in the several actions. The costs, whether properly or improperly incurred, could not be converted into debts retrospectively due from Archibald Fraser at his death, and must all of them, in my opinion, be paid out of the personal estate. I agree with my noble and learned friend on the woolsack as to the mode in which we should deal with the question of [H. of L. | locutor of Lord Handyside was brought before the Inner House it was recalled, and it was remitted to the Lord Ordinary to allow parties, before answer, an opportunity of substantiating their respective averments as regards the claim for the amount of these costs. The question then came before Lord Kinloch as Lord Ordinary, who was of opinion that, under the terms of the entail, burdening the lands of Abertarff and others with the debts of the testator, and declaring that "these debts shall noways diminish my executry or other funds, property or effects," the expense bona fide incurred in having the debts so charged fairly expiscated and their amount adjusted, is in sound construction a consequence of the debts, and equally chargeable on the entailed lands with the debts themselves. He accordingly pronounced a decree on the 8th June 1858, in which he found the pursuer entitled to relief out of the lands and estate of Abertarff of the expenses, whether incurred by himself or his agent, or found due by him to his antagonists, disbursed or incurred by him, of having the debts chargeable against the said lands and estate, and the amount thereof, fairly settled and adjusted, but of no other expense; and with regard to the five litigations the costs of which are in dispute, he found the pursuer entitled to them (with the exception of the costs incurred in a particular question) subject, as regards his own costs, to taxation, and he remitted it to the auditor of the court to examine the accounts of expenses, of which the pursuer claimed relief, and to separate and tax the same consistently with the following findings and report. The intention of this decree, as I understand it, was to decide that the pursuer was entitled to the costs of the five actions so far as the proceedings taken by him in each action were properly taken with the view previously expressed, viz., that of having the debts chargeable against the estates and the amount thereof fairly settled and adjusted, and to direct the disallowance of all expenses not falling within that category, and to refer it to the auditor to inquire and determine what expenses under that declaration were properly chargeable on the estate. The ground upon which the decision of the majority of the judges disallowing the costs in four of the actions proceeds, is, that inasmuch as in those actions the deft. was ordered to pay costs to the pursuer, the defence of them must necessarily, in the opinion of the courts who decided them, have been improper. I cannot concur in that conclusion. A deft in a suit is often ordered to pay costs, not on the ground that there was anything in his conduct deserving of censure, either in the fact of resisting a plt.'s claim or in the mode in which the resistance was conducted, but on the principle that a plt. who succeeds in establishing a demand is primâ facie entitled to receive the costs to which he has been put in making it out. But an executor or a trustee who is ordered to pay costs to the claimant is entitled, unless he has forfeited his right by some laches or misconduct, to recover from the estate which he has defended, not only the costs which he has incurred to the adversary Lord KINGSDOWN.-My Lords, this case has but also the costs which he has paid to his occasioned much difference of opinion in the court own solicitor. The real question is, therefore, in below, and I am very sorry to say that such diffe- what position did Abertarff stand when these rence extends to your Lordships' House, for I con- actions were defended by him on his behalf? The fess that I find myself unable to concur in the view testator could not, as against his creditor, relieve of my noble and learned friends who have already his personal estate from the payment of his debts, addressed you. Lord Handyside was of opinion that or his executor from the liability of being sued for none of the costs could be thrown on the estate, them. But the executor was entitled to be repaid holding that the case was the same as if, without out of the real estate, whatever he might be comany special charge, the heir of entail in possession pelled to pay out of the personalty. He stood, had resisted any action brought against him in that therefore, really in the situation of a person who, character, in which case the expenses would have in admitting or resisting claims, was acting on befallen upon him personally. But when the inter-half of others, that is, of those who were entitled costs. Ex.] HAUGHTON AND OTHERS . THE EMPIRE MARINE INSURANCE COMPANY (LIMITED). ¿Ex. to be construed on the same principles as other contracts, and its language is to be taken in its plain and ordinary sense. The word "at" in the present policy must therefore be read in its ordinary and geographical sense, and the ship being insured "at" Havana was insured all the time she was there, the risk commencing and the policy attaching at the moment of her "first arrival" within the entrance of the harbour, as laid down by Lord Hardwicke, C. J., in Motteux v. The London Assurance Company, 1 Atk. 545. All the limitation imposed by the law, as to the time of the commencement of the risk in such a case, is, that the ship should arrive at the port “at” which she is insured in a state of sufficient seaworthiness to be enabled to lie there in reasonable security till properly repaired and equipped for her voyage. (See per Lord Ellenborough, C. J., in Parmeter v. Cousins, 2 Camp. 235.) to the real estate. In other words, he was trustee | Held (a) (discharging the rule), that a marine policy is for them. He could not take their directions as to the payment of the sums demanded, or the resistance to some of the claims, for he himself was a minor, and the rest were brought forward very soon after he came of age. He could have no knowledge of the circumstances or amount of them. He could have no sinister interest in resisting them; indeed, whether they fell on the real or the personal estate, he supposed that he alone was interested in the matter. In all cases the resistance occasioned a substantial reduction of the original demand, though in some the costs exceeded the amount of the reduction. It may turn out upon inquiry that some part of these costs may have been improperly incurred, and if so, they will be disallowed, but I agree in Lord Kinloch's judgment that such expenses as were properly incurred ought to be allowed. When an estate is devised to trustees in trust to raise and pay the amount of a testator's debts, the trustee is entitled to be reimbursed out of the estate whatever expenses he has properly incurred in ascertaining the amount, or in raising the sums necessary for paying it. When the estate is charged with debts, but no express trust is created for paying them, the heir or devisee becomes, I apprehend, a trustee for the purpose. If he be the absolute owner subject to the charges, of course no question arises; but if he have no interest, or only a limited interest, then he stands, I think, in the same position with any other trustee. The peculiar situation in which Abertarff stood of representing the executry, to which the creditors had a right to resort, seems to nie to strengthen his claim to be considered a trustee. Assuming that he has acted prudently and properly in requiring the debts to be made out, he ought not to be subjected personally to the costs which have been incurred in protecting the estate which he represents. But the testator has declared that the debts, and impliedly, therefore, in my opinion, the costs of ascertaining them, shall not diminish his executry. The necessary consequence seems to me to be, that they must fall upon the But as a majority of your Lordships think differently, of course the judgment will be as proposed by the L. C. real estate. Decree varied. Common Law Courts. COURT OF EXCHEQUER, Nov. 22 and Feb. 26. HAUGHTON AND OTHERS V. THE EMPIRE MARINE Marine policy-Construction of-Meaning of words “at A vessel of the plts., insured by a valued policy "lost or not lost, at and from Havana to Greenock," upon arriving in good safety inside the heads in the harbour of Havana, was towed, in charge of a pilot, up the harbour, and when past the thick of the shipping above the city, and beyond the spot where her cargo was eventually discharged, and near the "Regla Shoal," she began to stir the mud up, whereupon, by order of the pilot, her anchor was let go, and she settled down on the anchor of another ship, and sustained the damage to recover which, under the policy, the present action was brought; and upon a rule to enter a nonsuit or a verdict for the defts. it was Declaration on a valued policy of insurance in 30007. on the ship Urgent, "lost or not lost at and from Havana to Greenock," whereby it was (inter alia) declared and agreed that the said ship should be and was warranted free from particular average below water, unless caused by injury to the stern or sternpost, or by fire, grounding, or contact with some substance other than water; and that ship and freight should be and were warranted free from ship were stranded, or sunk, or burnt. average under 3 per cent., unless general, or the Averment, that the said ship, when at Havana as aforesaid, and after commencement of and during the continuance of the said risk, sustained injury by perils insured against, such injury being caused by grounding and contact with some substance other than water within the true intent and meaning of the said policy in that behalf, and thereby sustained an average loss and damage exceeding 3 per cent.; that is to say, to the amount of 1000% Averment of performance of all conditions, &c. Breach, neglect, and refusal of defts. to pay, &c., according to the terms of the policy, and averment of damage to plts. by reason thereof. Second count, for money payable and money due on accounts stated. Claim 10007. Pleas-1. To first count, that the said ship did not when at Havana, after the commencement and during the continuance of the said risk, sustain injury by the perils insured against as alleged. 2. To the first count, that the said ship was not, after the commencement and during the continuance of the said risk, stranded, sunk, or burnt within the meaning of the said policy; and that the said loss and damage in the said first count mentioned did not constitute a general average loss, and amounted to less than 3 per cent. 3. To the first count, that plts. were not, nor any of them, interested in the said ship, as alleged. 4. To the residue of the declaration, never indebted. On all which pleas issues were joined. The action was brought by the plts., merchants at Liverpool, to recover 3531. 38. 1d., the sum found due from defts. under a pro forma average adjustment which the plts. had caused to be prepared by ave and at the trial before M. Smith, J. and a special rage adjusters of Liverpool, under the above policy; jury, at the Liverpool Summer Assizes 1865, the ment, but contended that, at the time of the hap defts. did not dispute the accuracy of such adjustpening of the damage, the vessel was not covered (a) In delivering his judgment in this case, Channell, B. stated that he was not aware whether Pollock, C. B. concurred with the judgments of Pigott, B. and himself, or not; and that Martin, B., not having heard the whole of the argument would take no part in the judgment, which at any rate, his Lordship added, "is the judgment of the majority of the court." Ex.] HAUGHTON AND OTHERS V. THE EMPIRE MARINE INSURANCE COMPANY (LIMITED). [Ex. by the policy, inasmuch as she had not then I be dismissed. Had she been insured on the outarrived "at" Havana, but was still on her voyage to that port. The facts as they appeared from the evidence of the captain, which was taken vivâ voce under a judge's order before a commissioner at Liverpool on 8th April 1865, were as follows:-On the 5th May 1864, the Urgent arrived off the harbour of Havana, and as soon as she got inside the heads in the harbour the captain took a pilot and engaged a steamtug to take her up to a spot where she could obtain clear anchorage. The ship was then towed up through the harbour past the thick of the shipping above the city, and beyond the spot where eventually her cargo was discharged. When past the thick of the shipping and near a spot called the " Regla Shoal," at the head of the harbour, the ship began to stir the mud up, but she never stopped and was not felt to take the ground. The pilot then gave orders to let go the anchor, and to the steamer to let go the warp. The anchor was let go, but the steamer kept tugging ahead, and the ship ran out some fifteen fathoms of chain. The hawser then broke and the helm being starboarded by order of the pilot, the ship swung round three or four points. The pilot then went on shore without giving any further orders, leaving the ship anchored as she was; and so she lay till the next morning (May 6th), when the captain attempted to get her round head to wind, but failed to do so, and subsequently on the same day he discovered that the cause of her not coming round was that she had settled down on the anchor of another ship, which had, caused her to sustain serious injury in the starboard after-run. She was on the following day, the 7th, at high water, tugged off and towed into deep water to a spot selected by the purchaser of the cargo, nearer the mouth of the harbour than the "Regla Shoal " and there her cargo was discharged, and she was afterwards taken into a dry dock where her injuries were repaired. was, ward voyage to Havana the policy would have covered her until she had been safely anchored for twenty-four hours. It was now decided that the home policy attached before the outward policy was at an end, the two policies thus overlapping each other. It was clear that here something was insured plus the home voyage, or it would have been "from" Havana only. [POLLOCK, C. B.— Has it not been decided that to be "at" a place the vessel must be there in safety; that the dangers of the voyage must be over and at an end?] In Arnould on Marine Insurance (3rd edit. by Maclachlan), p. 339, it was said to be now settled that where a ship was insured "at and from" a foreign port with a view to cover the home voyage, she must have once been at the outward port, the terminus a quo, "in good physical safety," before the homeward policy can attach; and Purmeter v. Cousins, 2 Campb. 235, and Bell v. Bell, Ib. 475, were there cited as authorities for that proposition, and the ruling of Lord Ellenborough there had been upheld in banco. But it was enough if the ship, while at the terminus a quo, was in a condition "enabling her to lie there in reasonable security till properly repaired and equipped for her voyage:" (per Lord Ellenborough, C. J., in Parmeter v. Cousins, ubi sup.) In policies like the present, in the words "at and from "a place, "first arrival" was implied, and always understood:" (per Lord Hardwicke, C. J. in Motteux and others v. The Governor and Company of the London Assurance Company, 1 Atk. 545.) Patrick v. Ludlow, 3 Johnson's New York Cas. 10; Palmer v. Marshall, 8 Bing. 79; 1 L. J., N. S., Smith v. Surridge, 4 Esp. N. P. C. 25; and 1 Phillips on Marine Insurance, 3rd edit. (Boston), sects. 932, 933, 934, were all authorities to the like effect. None of The entry in the official log under date of 5th the cases gave a satisfactory definition of the meanMay merely stated the simple fact that "at 4 p.ming of the word "at." The court, therefore, must the pilot ran the ship aground on the Regla Shoal take it in its plain, popular, and geographical sense, and left us." and not complicate the case by adopting an unnatural, strained, and artificial interpretation of so clear and simple an expression. The only question was whether, at the time that the ship received the injury, the policy had attached. The verdict was entered for the plts. for 3531. 3s. 1 d., subject to leave to the defts. to move to enter a nonsuit or a verdict for defts., the court to draw all necessary inferences, and a rule to that effect having been obtained in Michaelmas Term, on the ground that the policy never attached, the vessel not having arrived at Havana within the meaning of the policy, Brett, Q. C. and Baylis now (Nov. 22) showed cause against it on behalf of the pits.-It was immaterial whether the injury occurred before or after the ship was finally and properly anchored, though the facts showed that it occurred after; the pilot had left her, and she was brought up swinging by her own anchor. The policy attached the moment the ship was within the natural and artificial entrance of the harbour, and she was then, in nautical phraseology, "at Havana." There was a difference between "off" and "at" a place. A ship when lying in the Sloyne was at Liverpool; a ship anchored in the river at Gravesend was at London, though she had not reached her ultimate place of destination, the London-docks. But a ship in the Dover-roads was "off" Dover, and not "at" it until she was within the entrance of the harbour. No doubt, in order for the policy to attach, the ship must be at the place in a seaworthy condition, and that was the case here; but in simply ascertaining whether in fact she were at the place, the second question of seaworthiness may for the moment Potter (with him E. James, Q. C.), contra, for the defts., contended that the ship was not at Havana within the meaning of the policy. If this had been an outward policy only it would have expired when the ship had been safely anchored for twenty-four hours, the voyage would then have been concluded and the underwriters discharged. But even admitting that there might be an overlapping of the two policies, there must be a time when the outward liability ceased, and surely the homeward liability must begin at that same time. The vessel could not be said to be at Havana, unless she were there, so that twenty-four hours afterwards the outward liability would cease; but here the outward liability remained until the ship had been twenty-four hours at the spot where her cargo was discharged. The letting go the anchor by order of the pilot was the necessary consequence of the momentary emergency, and was a temporary and not the final anchoring. It might be that it was not necessary to the homeward policy's attaching that the outward voyage should have expired, but it was necessary that such a time should have arrived that the outward underwriters could or night be discharged, and that time had not arrived here; in fact, the outward voyage must be at an end before the homeward voyage commenced. The ruling of Lord Tenterden, C. J., in Samuels v. The Royal Exchange Insurance Company, 8 B. & C. 119, showed that the word "London" might, for the purposes of the Ex.] HAUGHTON AND OTHERS v. THE EMPIRE MARINE INSURANCE COMPANY (LIMITED). policy, be restricted to a particular dock there, and that a ship which had not arrived at her place of discharge had not been anchored for twenty-four hours in good safety at her destination, and to that effect was the case cited in Phillips on Marine Insurance, sect. 968. "At Havana " meant, therefore, at the place of discharge. the ultimate destination of the vessel. Cur. adv. vult. [Ex. the port. My judgment is, therefore, for the pits., that the rule be discharged. Feb. 26.-The following judgments were now language used by the parties ought to have a plain delivered: CHANNELL, B.-The question in this case is whether or not the policy had attached at the time when the damage occurred to the ship Urgent? The facts are before us on the notes and in the documents. In my opinion the ship was then at Havana, and consequently the policy had attached. The damage occurred "at Havana," speaking in a geographical sense, and there is nothing in my judgment to show that the parties, at the time the policy was underwritten, had any other meaning of the word "at" in contemplation. All the limitation which it seems has ever been imposed by the law, as to the time of the commencement of the risk in such a case as the present, is that the ship should arrive at the port "at" which she is insured in a state of sufficient repair or seaworthiness to be "enabled to lie there in reasonable security till properly repaired and equipped for her voyage: (Parmeter v. Cousins, ubi sup., and Bell v. Bell, ubi sup.), in the latter of which cases Lord Ellenborough's ruling at Nisi Prius was subsequently upheld by the court in banc. In the present case, however, there appears to be no doubt that the ship was really within the harbour in good safety, and that the loss occurred from a peril in the harbour, and in no way from any injuries that she had received before her arrival. The ship being insured while at Havana, is evidently (in the absence of any express provision to the contrary) insured all the time she is there, and therefore the risk commences, as was said by Lord Hardwicke in Motteux and others v. The London Assurance Company (ubi sup.), on her "first arrival" there. Unless, therefore, we can say that her "first arrival" at the port is when she casts anchor there, instead of when she enters the port, our judgment must be for the plts. In many cases the nature of the port may be such that the two events may be identical. There may be nothing to show the arrival of the vessel till she casts anchor. But here we have evidence as to the port of Havana, which is sufficient, in my judgment, to show that the arrival was before casting anchor. Mr. Potter has argued that the first arrival, which must no doubt be in good safety, must be identical with the mooring in good safety usually named in outward policies. But I think we cannot construe the terms of one contract by reference to those of another not referred to in it. And it is clear that there is no usage that the duration of the outward and homeward policies should not overlap, because the outward policy usually extends to twenty-four hours after the vessel is moored in good safety. During those twenty-four hours there is no question that there is a double insurance, and therefore I see no ground for saying that the parties contracted subject to any usage that such a policy would not attach until the previous one had determined. If they had wished to make such a condition it could easily have been done; or, if having in view any special dangers, as shoals, or the like, within the port of Havana, they had chosen to make the risk date from the vessel being moored in safety, they would have done so; but as it stands it is from her "first arrival," which, as a matter of fact, I think to be on her entering PIGOTT, B.-(After recapitulating the facts, his Lordship proceeded to deliver his judgment as follows):-The sole question in this case is, whether the policy had or had not attached at the moment when the mischief occurred? I am of opinion, in conjunction with my brother Channell, that it had. I agree with the plts.' counsel, and think that the construction put upon it, and that as the ship had arrived, geographically speaking, within the harbour of Havana, and was in safety there before the injury was received, the risk had then commenced. A policy of insurance is to be construed by the same rules and on the same principles as other contracts, it being the duty of the court to collect the meaning of the parties by taking the language employed in a plain and ordinary sense, and not to speculate on some supposed meaning which the parties have not expressed. It was argued for the defts. that Havana being an outward port, as far as regards this vessel, the words "at and from " Havana must be construed to mean that the risk should commence when the ship had so far performed her outward voyage that nothing remained to determine the outward policy, but that the twenty-four hours after her arrival should expire, and that, so construed, this policy had not attached, inasmuch as the ship had not arrived at her place of discharge. But this, it seems to me, would be a very artificial mode of construing the policy in question, nor have we any safe guide to conduct us to it. With equal plausibility it might be argued that the risk “at and from" a port should not commence till the insurance "to" that port ceased, which is at the end of the twenty-four hours, and not at the commencement of them. The answer to both these arguments seems to be, that the construction of this contract cannot depend upon the contents of another and distinct contract which is wholly unconnected with it, and that the court is not called upon to know or assume that, in fact, any outward policy exists. This view is sanctioned by the authority of Lord Hardwicke in Motteur v. The London Assurance Company (ubi sup.), where his Lordship mentions a case tried before him at Guildhall, in which he says, "It was debated whether the words at and from' Bengal meant the first arrival of the ship at Bengal ;" and he adds, "It was agreed the words 'first arrival' were implied, and always understood in policies." Now, there can be no question about the sense in which Lord Hardwicke uses the words "first arrival," viz., in contradistinction to her being moored in a particular place, or discharging her cargo. In Parmeter v. Cousins (ubi sup.) Lord Hardwicke's report of the above case is mentioned, and the learned reporter adds, "There seems no doubt that the rule laid down by Lord Hardwicke, qualified by the principal case (to which the note is appended), is to be considered as established law upon the subject." The qualification there alluded to is, that the ship shall be once in good safety at the port, a matter not in dispute in the present case. This doctrine, and the authority for it, are to be found in several of the text-books on insurance, and may be then taken to have been long considered as the meaning of those who so word their policies. In Arnould on Insurance, p. 28, s. 25, 2nd edit., it is the form recommended to be adopted for the advantage of the assured in protecting the ship from the moment of her arrival. I do not think it necessary to advert to the other question which has been raised, viz., whether, in fact, this ship had not anchored in the harbour before the damage was sustained, and at a place even farther within it than her place of ultimate discharge, and whether that would make any difference in the case. In my judgment the plts. are entitled to keep their verdict, and this rule, therefore, should be discharged. Rule discharged. Attorneys for the plts., Norris and Allen, 20, Bedford-row, agents for Simpson and North, Liverpool. Attorneys for the defts., Chester and Urquhart, 11. Staple-inn, agents for Lace, Banner, Littledale, Gill, and Bardswell, Liverpool. April 30 and May 26. CAVELL AND ANOTHER v. PRINCE. Husband and wife-Impotence-Plea of by a third party in action on covenant in marriage-settlement Nullity of marriage-Void or voidable. In an action by the covenantees, trustees of a marriagesettlement, on a covenant in consideration of marriage therein contained to pay an annuity during the life of the covenantor's intended son-in-law, it is not competext to the deft. (the covenantor) as a third party to plead equitably the nullity of the marriage by reason of the husband's impotence and the consequent failure of consideration for the covenant, the parties to the marriage them selves having taken no steps to set the marriage aside on that ground, nor elected to treat the contract as vo id. Quare, whether a marriage duly solemnised is ipso facto void, or only voidable, on the ground of impotence? The observations of Bramwell, B. in H- v. C [Ex. party's entering into the marriage contract, and one April 30.-Keane, Q. C. (Haslefoot with him) and even if it were to be taken that it was a voidable marriage, yet on the plea it was not void. Impotence did not make a marriage absolutely void, but only voidable; and that only at the suit of the husband or wife, and by the decision of a court of competent jurisdiction. Here in an ordinary action at common law against a third party, when neither of the parties to the marriage had attempted to invalidate the marriage, such third party could not be allowed to avail himself of the objection of the 1 Sw. & Tr. 622; 29 L. J. 92, Pr. & M., on this point impotence of the husband as an answer to the approved. This was an action on a covenant. The declaration set out a deed by which the deft. covenanted with the plts. that if a marriage then contemplated should be had and solemnised between one J. S. C. and the daughter of the deft., the deft. would pay to the plts., as trustees of the settlement for the husband and wife, an annuity of 2001. during the life of the said J. S. C., or until he should become bankrupt, and it then averred that the said marriage was duly solemnised, and that 2004 was due on account of the said annuity. The deft. pleaded several pleas, and amongst others, Plea 3. That the deed was made by deft. to plts. as trustees for J. S. C. and for his sole benefit, and was obtained from deft. by the fraud of the said J. S. C. action. They cited Evans v. Carrington, 29 L. J. 330, Ch. Evans v. Edmonds, 13 C. B. 777; 22 L. J. 211, C. P. ; Beresford, contra, for deft., in support of the plea, urged that although the plea might be without a precise precedent, yet the real contract between the parties must be borne in mind. The consideration for deft.'s covenant was the consummation of the marriage, and not the bare ceremony of its solemnisation in church, and there had been a total failure of such consideration. He cited H- v. C, 29 L. J. 81, Pr. & M.; 1 Sw. & Tr. 605. [POLLOCK, C. B. refers to Hall v. Wright, 1 L. T. Rep. N. S. 230; 29 L. J. 43, Q. B.; 2 El. Bl. & El. 746.] Plea 4. On equitable grounds, that the deed was made with plts. as trustees for the said J. S. C., in consideration of the marriage of the said J. S. C. with The COURT (Pollock, C. B., and Martin, Bramthe deft.'s daughter, and of such marriage being a well, and Pigott, BB.) were of opinion that, valid marriage, and of the said J. S. C. being compe whether as between the parties to the marriage tent to contract the said marriage, whereas, in truth themselves the marriage could or could not be and in fact, the said marriage was not a valid mar-treated as absolutely null and void, yet while riage, nor was the said J. S. C. competent to contract the same, but that the said marriage was always null and void by reason of the impotence of the said J. S. C., of which the deft. had no notice at the time of making the said deed, and that deft.'s daughter had never been able to live and cohabit with the said J. S. C. by reason of his said impotence, and had never lived or cohabited with him for the reason aforesaid; and the consideration for making the said deed had wholly failed as aforesaid. Demurrer to both pleas, and joinder in demurrer; and traverses also of the same pleas. Pits.' points:-Impotence in either of the parties at the time of solemnising a duly-solemnised marriage is a canonical and not a civil disability to the neither the husband nor the wife had attempted to |