finite meaning (o); but, this doubt removed, another question to be asked is, are women, children, and servants, who are parishioners and inhabitants, to be allowed to vote? It seems the extent of the terms must be taken secundum subjectam materiam, with reference to the nature of the privilege the cestuis que trust are to exercise (p), and, if so, none should be admitted to vote, who, from poverty, infancy, or coverture, are presumed not to have a mind of their own (q). In a case, where the election was given to "the inhabitants and parishioners, or the major part of the chiefest and discreetest of them," it was held that, by chiefest, was to be understood those who paid the church and poor rates, and by discreetest, those who had attained the age of twentyone (r); but Lord Hardwicke said, that, even where parishioners and inhabitants" stood without any restriction at all it was a reasonable limitation to confine the meaning to those who paid scot and lot, that is, who paid to church and poor (s); and so, in a previous case, it seems his Lordship had actually determined (t). The Court of Exchequer adopted a similar construction in the Clerkenwell case (u), though it does not appear how far the Court was guided in its judgment by the evidence of the common usage (x); and Lord Eldon, in a subsequent

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case, restricted the election to the same class (y), but his Lordship's decree was possibly founded on the circumstance, that those only who paid scot and lot were admitted to the vestry (z); not that, for the purposes of election, the vestry is the representative of the parish (a), but in one of the oldest documents the trust was said to be for "the parishioners of the said parish at a vestry or vestries to be from time to time holden for the said parish (b)." But, where the instrument creating the trust contains merely the words "parishioners and inhabitants," the Court will not confine the privilege of voting to those paying scot and lot, if it appears from constant usage that the terms are to be taken in a wider and more extensive signification; to include, for instance, all housekeepers, whether paying to the church and poor or not (c). By persons paying to the church and poor must be understood persons liable to pay, though they may not have actually paid (d); but it seems to be a necessary qualification that they should have been rated (e), unless perhaps the name has been omitted by mistake (ƒ), or there is the taint of fraud (g). With respect to the mode in which the votes are to be taken, it is clear that the election cannot be conducted by ballot, not only on the general principle that the ballot is a form of proceeding unknown

(y) Edenborough v. Archbishop of Canterbury, 2 Russ. 93.

(z) See Ib. 110.

(a) Attorney-General v. Parker, 3 Atk. 578, per Lord Hardwicke; Attorney-General v. Forster, 10 Ves. 340, 344, per Lord Eldon.

(b) See Edenborough v. Archbishop of Canterbury, 2 Russ. 94.

(c) Attorney-General v. Parker, 3 Atk. 576; S. C. 1 Ves. 43. (d) See Attorney-General v. Forster, 10 Ves. 339, 346. (e) Edenborough v. Archbishop of Canterbury, 2 Russ. 110. (f) Ib.

(g) S. C. Ib. 111.

to the common law of England (h), but also on the ground, that the trustees have a right to be satisfied, that the person they present to the bishop has been the successful competitor; whereas in election by ballot there are no means of ascertaining for whom each particular elector voted (). The choice of the candidate must therefore be determined by one of the modes known to the common law, viz. either by poll or a shew of hands (k). However, the cestuis que trust may expressly agree among themselves that they will abide by the declaration of the result of the ballot, and will ask no questions how the individual votes were given, or such a contract may be inferred from long and clear antecedent usage (1); but an agreement of this kind can apply only to each particular election as it occurs, for any one parishioner has a right to insist that the coming election shall be conducted on a different principle: it would be a bold thing to say, that the parish of to-day could bind the parish of tomorrow to deviate from the original and legitimate mode (m). A contract between the cestuis que trust in favour of the ballot is also open to the objection, that the right of voting in the election of a clerk is a privilege coupled with a public duty, and it may be doubtful whether a court of equity would enforce the result of an election, where it cannot be ascertained whether the voters, in the exercise of their right, have fairly and honestly discharged that duty (n).

Another case, in which a modification of property un

(h) Faulkner v. Elger, 4 Barn.

& Cress. 449.

(i) Edenborough v. Archbishop of Canterbury, 2 Russ. 105, 108, 109, per Lord Eldon.

(k) See Ib. 106, 110.

(1) See Ib. 105, 106, 108, 109.

(m) See Ib. 106.

(n) See Ib. 109.

known to the common law has been admitted into trusts, is, where property, real or personal, is settled to the separate use of a feme covert, so as to exclude the control of her husband. The principle at common law is, that, as the husband undertakes the debts and liabilities of the wife, he is entitled, absolutely or partially according to the circumstances of the case, to the enjoyment of her property; but in equity a feme is allowed to contract with the husband before marriage for the exclusive enjoyment of any specific property (0), or a person may make a gift to the wife during the coverture, and shut out the husband's interference by clearly expressing such an intention. Where the separate estate is the result of a special agreement between the parties, the policy of the law can scarcely be said to be transgressed, for the old rule was established for the benefit and protection of the husband, and quisque renuntiare potest juri pro se instituto; but that equity should have allowed a stranger to vest property in the wife independently of the husband during the coverture appears a more questionable doctrine, though it may be said even in this case there is no violation of the marital rights, for the property never vested in the feme herself, and the donor may limit any estate which the law does not refuse to recognize. The Court has also permitted the further anomaly of a restriction upon the feme's anticipation (where such an intention has been expressed) of the growing proceeds of the separate estate; but this indulgence appears not a distinct inroad upon the common law incidents of property, but rather an appendage to the separate use for the purpose of more effectually excluding the influence of the husband. If the wife were not debarred from anticipating the pro

(0) See Parkes v. White, 11 Ves. 228.

ceeds, she might, where the husband was not actuated by proper motives, be induced to divest herself of the property, and place it at the husband's disposal.

At the first introduction of the settlement to the separate use it was doubted whether, to accomplish the object, the interposition of an express trustee was not necessary (p); but it has since been determined that this precaution may be waived, for, rather than the intention shall be disappointed, the husband himself shall be construed a trustee for the wife (q). But, whether a trustee be expressly appointed or not, the intention of excluding the husband must not be left to inference, but must be clearly and unequivocally declared; for, as the husband is bound to maintain the wife, and bears the burden of her incumbrances, he has prima facie a right to her property (r); but, provided the meaning be certain, the Court will execute the intention, though the settlor may not have expressed himself in technical language ($).

The marital claims will be defeated if the gift be to the wife for her "sole and separate use (t)," or "her sole use (u)," or for "her livelihood (x)," or "that she

(q) Bennet v. Davis, 2 P. W. 316; Parker v. Brooke, 9 Ves. 583; Rollfe v. Budder, Bunb. 187; Prichard v. Ames, 1 Turn. & Russ. 222.

(r) Ex parte Ray, 1 Mad. 207, per Sir T. Plumer; Wills v. Sayers, 4 Mad. 409, per eundem; Massey v. Parker, 2 M. & K. 181, per Sir C. Pepys; Kensington v. Dollond, 2 M. & K. 188, per Sir