interests in the counties of Meath and Kildare to his seven younger grandsons, and that Andrew Rorke. junior, is under that will entitled to a seventh share o proportion of the residuary estate of James Halpin, consisting, among other matters. of the lands in the counties of Meath and Kildare thereinafter mentioned, and the profits thereof during the respective terms yet to come But what is the residuary estate referred to? The leasebol! estates are the only ones referred to as the residue of the testator's estates in the will, and it is but natural that the word "residue" should be used in the same sense in both instruments. What again, are "the lands in the counties of Meath and Kildare hereinafter mentioned"? The only lands specifically named from beginning to end of the deed was the leasehold estates of Newtown, Ballycaru, and Possextown, which are carefully and accurately described in the operative part of the deed. Not one word occurs in it that can fairly be referred to the fee simple estates, and it is plain that Andrew Rorke, junior, never intended by this deed to part with any claim or right to them. But we find in this deed still stronger internal evidence that the leasehold lands were the only subject of the grant. After acknowledging the receipt of £700 from Andrew Rorke, the elder, the executor, on account of the one-seventh share of the residuary estate, Andrew Rorke, junior, in consideration of a sum of £700, releases Andrew Rorke. the elder, and the estate of James Halpin from all claim or demand in respect of "the seventh share to which the said Andrew Rorke, junior, is at present entitled of the residnary estate of the said James Halpin, deceased." Again, when we come to the

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trust funds. The daughter attained twenty-one and died, and the mother afterwards appointed the residue of the fund to her son, and it was held that this residue did not pass under the settlement. Again, in In re Wright's trusts (15 Beav. 367) the words, "all other his per onal estate and effects whatsoever or whensoever, of or belonging, or due or owing to him," in a deed of assignment were not considered to convey a contingent reversionary interest in a legacy. Similar principles are to be found in Pope v. Whitcombe (3 Russ. 124) and Moore v. Magrath (Cowp 9). In the latter case a grant of certain lands nominatim, together with "all other his lands, tenements, and hereditaments in the Kingdom of Ireland," was held not to pass any lands of the grantor in Ireland except those specifically mentioned, Lord Mansfield stating that it was very common to put into deeds a sweeping clause, and that the use and object of it in general was to guard against any accidental omission; but that in such cases it was meant to refer to estates or things of the same nature and description with those which had been already mentioned.

A question has been raised as to the jurisdiction of the Landed Estates Court to set aside a deed on account of fraud, incidentally to a proceeding in that Court, without directing an independent suit to be instituted in the Court of Chancery. The 37th section, however, of the Landed Estates Court Act (21 & 22 Vic., c 72) gives to that Court "all the power, authority, and jurisdiction of a Court of Equity in Ireland," and it is the practice of that Court to set aside deeds in the course of an ordinary suit for sale. - Ronayne's estate (13 Ir. Ch. Rep. 444).

Assuming. for the sake of argument, that the words of the deed were sufficient to pass the fee simple estates, it is a purchase of a reversionary interest, and the purchaser must be prepared to show that the full value was given for it.-Bromley v. Smith (26 Beav. 644). It is quite immaterial also that the vendor was a person of mature age who understood the true value of the property. Nor will the fact of the reversion being dependent on contingencies that do not admit of estimation by an actuary, relieve the purchaser from the onus of showing that fair value was given.-Talbot v. Staniforth (1 John. & Hem. 484); Peacock v. Evans (16 Ves. 512); Boothby v. Boothby (15 Beav. 212); Salter v. Bradshaw (26 Beav. 161); Tottenham v. Green (32 L. J. N. S. Ch. 201).

halendum we read "to have and to hold the said several premises in the counties of Meath and Kildare and other the share which the said Andrew Rorke, junior, is at present entitled to, of any lands or tenements or any other property part of the residuary estate of James Halpin, de cased, as one of his residuary devisees or legatees." In the clause whereby the executor is released, the words, "the share to which the said Andrew Rorke is at present entitled," can only refer to the leasehold interests, and can it be reasonably argued that it was the intention of the parties that in the habendum the very same words should have a different meaning? The only words that can be construed as sufficiently large in their signification, to pass the contingent reversionary interest in the fee simple estates, are those occurring in the estate clause of the deed. But general words in the operative part of deeds have been often held to be controlled in their meaning by the recitals. In Childers v. Eardley (28 Beav. 648) a mother had a power of appointment over a fund in favour of her children, and which in default of appointment was divisable equally, the share of the daughters to vest at twenty one or marriage. She had one son and one daughter, and on the marriage of her son she appointed to him a moiety of the fund. The settle-possession of the fee simple estates. It is plain that ment recited that he was entitled to this moiety, aud was also contingently entitled to the other moiety in the event of his sister dying unmarried under twentyone, and it further recited an intention to settle a moiety of the fund appointed, and “all other his part, share. and interest, as well vested as contingent," in the

It is highly improbable that Andrew Rorke, junior, knew that he had a contingent interest in Johnstown and the other fee simple estates under James Halpin's will. The will was obscurely drawn, and no one without a knowledge of law would be aware that the undisposed of interests in the lauds of which the testator had made but partial di positions, would pass under the residuary clause. At the time of the execution of this deed, too, James Halpin was still alive, and having attained the age of twenty-three was in

John Rorke, who was a solicitor, knew the actual rights of the parties, and framed the deed in such a manner as to include this contingent interest. It is also evident that his brothers bad not the most remote suspicion of their rights in connection with the fee simple estates, and that John Rorke knowing this was

is at present entitled to of any lands and tenements, | there is a respondent, I think if they have a right to

interfere in one case they have a right to interfere in another, for they do it on the same principle in both cases, of shewing that the proceedings ought to be sustained. The not appearing below would not beneOrder below reversed. All parties to bear their have had no interest in appearing below; but where fit the owners of the weirs below. The Crown would own costs of the appeal.

Coghlan, appellaNT, LORD LISMORE, RESPONDENT. the Crown is wholly independent of the enactments in

this statute. Well, here we have a statutable jurisdiction, a decision made, and an appeal. For the purFishery Appeal-Statute 26 & 27 Vic. c. 114-In-pose of that appeal we learn that two parties appear, jury to navigation-Right of the Crown to be heard on argument of appeal. In appeals under the 26 & 27 Vic. c. 114 the Crown has a right to appear and be heard upon the question of the weir condemned by the Commissioners being an injury to navigation. Dissentiente, Hayes,

COGHLAN, APPELLANT, LORD LISMORE, RESPONDENT.

February 1.

that they shall give notice to the parties and hear the evidence; and then it gives a right of appeal. It is stated expressly in the 14th section that the appeal is Fishery appeal-St. 26 & 27 Vic. c. 114-Evidence the case is to contain. It shall be settled by the to be on a special case, and the section provides what

Short-hand writer's notes.

In an appeal under st. 26 & 27 Vic. c. 114, held by Lefroy, C.J., and Fitzgerald, J., that the Court should not look beyond the facts stated in the case submitted by the Commissioners, or go into the short-hand writer's notes of the evidence adduced before them.

Per Hayes, J.-That the Court should look to those notes and decide upon the evidence, not merely upon the case stated.

Per O'Brien, J.-That the Court might look to the notes for the purpose of ascertaining whether there was evidence of any particular fact stated in the case, or whether any fact had been omitted from the case, but not for the purpose of weighing the evidence given on opposite sides.

Commissioners; and the appeal shall be by a special case, stating the facts and the grounds of their decision. It is well settled that the facts established in the case do not mean the evidence given in it. There may have been fifty witnesses examined before the Commissioners, not one of whom they believed; and there may have been the evidence of half a dozen of witnesses to establish a single fact. I may endeavour to illustrate this case by a reference to the Registry of Voters Act; and I recollect well in the case of the Dublin freemen it was contended on the one hand

that we should go into the evidence which was given before the revising barrister; and on the other, that we were bound by the conclusion at which he had arrived; and though perhaps if I had gone into the evidence I would have come to a different conclusion from his, yet I, for one, felt that I was bound by his conclusion. Well, it is said in the Act that these In this appeal the Commissioners in the case stated three Commissioners shall state the facts. By that I by them stated that they had the notes of the evi- understand that, judging by all before them, the dedence adduced before them taken by a short-hand meanour of the witnesses and other matters, they writer, and were ready to produce them if the Court shall find such facts as they deem proved. Otherwise required them to do so. Counsel for the appellant there is no use in the Legislature saying that they now insisted that the Court should require the pro- shall state the facts. What would have been said is, duction of the notes and go into the whole of the evi- that they shall report the evidence; and it appears to dence. Counsel for the respondent argued that theme that we must come to the conclusion that it would be Court should confine itself to the facts stated upon the case itself.

The same counsel appeared as in the case last above given.

FITZGERALD, J.-The question at present is, whether the parties are to be at liberty to refer to the notes of the evidence taken by the short-hand writer, and the allegation on which the appellant bases his application for using the notes is, on the passage in the case submitting to the Court whether they should furnish the judges with a copy of the notes, &c. They have given their decision and the reasons therefor, and submit whether they should furnish the notes. I think, therefore, that it is a mistake to say that the notes are incorporated with the case. The Commissioners very properly offered to do it, but the case before us is simply an appeal on the special case. There is no case made before us to send back the case to the Commissioners for amendment. The contention on the part of the appellant is, that she shall be at liberty, by her counsel, on the argument of the case to refer to the notes and bring before us the evidence, which was before the Commissioners. In my judgment that cannot be done, and, I think, for obvious reasons. If one was to deal with conjectures, we might think that the Legislation intended that this appeal should be in the nature of a rehearing on the materials which the Commissioners had before them; but if that was the intention of Parliament, Parliament has not so expressed it, and one must go on the language of the Act. What the Act says is, that the Commissioners shall be required to inquire into certain particulars, and, amongst others, whether particular weirs are, in their judgment, obstacles to navigation; and it says

the duty of the Court, if we went into the evidence, to decide what part of it we should believe or reject. I do not think that this was the intention of the Legislature as it is to be gathered from the language of the Act; and I think that going into the evidence would be fraught with mischief, as I do not see how we could decide upon the credit of the witnesses produced below. It may be urged-and we have heard this argued with a full feeling of the responsibility which lies upon us-that our decision in this case will be final; but it does appear to me that there can be no danger in our holding that we should not go into evidence; because, incorporating into this Act the Act for appeals from magistrates, there is no reason why the Court should not, if it thinks it necessary, remit the case back to the Commissioners to be amended. So here, if an application was made stating that there had been certain facts established which would materially affect the rights of the parties, and which were not stated or wrongly stated, and asking us to send the case back, I, for one, if there were fair grounds for that allegation, and if such had been the application, would hold that the case should be remitted to the Commissioners for the purpose either of having the statement in it altered, or of having a supplemental one added. But here there is no quarrel with any statement of fact made by the Commissioners. I do not find that counsel say that the facts found are not sustained by the evidence; nor has our attention been called to any other fact than those found. There may have been evidence given which the Commissioners thought immaterial, and which they considered it unnecessary to state. The conclusion therefore which I have arrived at is, that on the hearing of the appeal

we can only deal with the facts stated on the case settled by the judges below, and decide whether the conclusions which they have drawn are consonant with right and justice. On the other hand if the appellant says that any other facts were established which ought to be added, the course should be to remit the case back to be amended; but I do protest against having the short-hand writer's notes thrown in upon as in globo.

judge to take evidence. If there is any objection to the short-hand writer's notes let the facts proved be shown.

O'BRIEN, J.-I have already intimated the purpose for which, and for which alone, I think the evidence before the Commissioners might be referred to. The question, I think, is not altogether free from doubt under the Act, whether in administering the law under the Act, considering the extraordinary powers given to the Commissioners, it might not be advisable for us to be in possession of all that was before them in order to say whether their decision was well founded. It has been said that that would be taking on ourselves to decide whether the Commissioners were right or wrong in the credit which they gave to the evidence on one side notwithstanding the evidence given on the other. I do not think that that would necessarily follow; nor do I mean to suggest that such an inquiry should be conducted by the Court. The Commissioners refer to one fact, and say that certain vessels are obliged to sail in a particular direction, and that by reason of that they are prevented from passing over part of the river. On that and on other facts of the case the first question is to see whether in our opinion those facts stated warranted the conclusion at which the Commissioners have arrived, that the weir is injurious to navigation. That is a question which we might determine on the case itself, and without referring to the evidence adduced to prove the several matters of fact. But beyond that there is a question that the evidence before the Commissioners was not sufficient to sustain their finding as to the matters of fact. Now, I do not think that the question is at all to be regarded in the same light as if we were asked to say whether a finding by a jury was against the weight of evidence. We are to say, not whether the Commissioners were right or wrong in determining the fact, or whether the preponderance of evidence was greater on one side or the other, but whether there was evidence to sustain that matter of fact; and it is much the same as if a defendant applied to have a plaintiff non-suited. That would be a matter which we would be competent to deal with, -a question of law, whether, looking at the evidence, there was a sufficient case to be laid before a jury. Beyond that, if there was sufficient evidence to lay before a jury, and though there was evidence on the other side, as to which party's evidence they attached the greater weight to, there the Court could not take upon itself the task of saying whether, though there was evidence on both sides, the finding below was against the weight of evidence; that is a duty which I do not think is cast upon us in this case; but I do not think it precludes us from seeing whether there was any evidence below sufficient to sustain the find

HAYES, J.-As I differ in some matters from my brother Fitzgerald, I shall state the opinion at which I have arrived. In substance the question is whether we are to proceed to adjudicate upon the case which is now presented to us, or whether we are to be assisted by further statements of the facts proved before the Commissioners. Now I, for one, am very slow to come to a conclusion on this case without seeing my way to the doing of justice; and the view which I have taken is, that before all things it becomes most important to see whether or not this weir is detrimental to navigation. Upon the case as stated I could come to no conclusion. For want of a better I might adopt the conclusion of the Commissioners, but I apprehend that if I did so it would be a perfect delusion and a mockery to the public to call this a court of appeal at all. Let us see whether the Act of Parliament has intended to delude the persons interested as to this appeal. The 14th section of the Act says that the appeal is to be by a special case to be settled by the Commissioners. It does not say that it is to be settled in presence of both parties. The Commissioners may go into their own study and settle it without reference to either party. So that here, upon an appeal which is to decide both law and fact, the Commissioners may decide as many matters of fact as they choose. Then the Act says that upon the special case being stated the appellant shall serve a copy of it upon the other party. There is no provision for going before the Commissioners and summoning the other party to appear. The only thing which can be done is provided by the 9th clause of the section, which says that "when a party gives in good faith notice of an appeal under this section, but omits through mistake to do some act necessary to perfect the appeal, the appellate court may permit an amendment on such terms as it thinks just." Why, to perfect the appeal would seem to be something collateral, and would not have reference in any way to introducing into the case more than the Commissioners themselves introduced. Well, what is the result? I do not say that the Commissioners have not b.eu most anxious to do their duty, but here we have a most important question; and they tell us that they are of opinion that this weir is injurious to navigation. Mr. Shaw says that we are not competent to deal with the evidence, but still that is not the que tion here. The questioning of the Commissioners on these matters. If it beis, is the subject to be deluded by the appearance of an appeal when the appe 1 court has not the power of going into the case? I think we have not the means here of deciding, and I think we ought to have them; and the Commissioners say that they are ready to produce the short-hand writer's notes. Now, it is said, why should the short-hand writer's notes be producd? There is no provision in the statute for their production. That is true, but it is the duty of the

came a matter of conflict of evidence, that would not be a matter for us. When the onus probandi ties upon a party, and he produces no evidence at all, that I would say is a matter which the Court may look to. Therefore, so far as that goes, so fat counsel for the appellants cau tell us, he seeks to go into the evidence to shew that there was no evidence at all below on the point; to that extent, in the first instance, I think they are entitled to refer to the evidence.

There is