422 Affirmation.] LAW AND EQUITY INDEX. "one-third" of the total value of the property saved, and gave them their costs of the suit. The Erin-goBragh, 9 Ir. Jur. N.S. 100, Adm. In this case where there was no personal risk or any danger, but which was an ordinary salvage service performed with skill, good conduct and complete success to a vessel in imminent peril of being totally lost, the Court awarded to the salvors a sum of £375 "one-fourth" of the admitted value and costs. The Rothsay Castie, 9 Ir. Jur. N.S. 360, Adm. or AFFIRMATION. An affirmation, taken under the 3 & 4 W. 4, c. 82, stated that affirmant was a member of a religious sect, called "Separatists," but did not in terms, follow the orm of affirmation required by the Act. Held, that it must be assumed to have been properly made. Wolseley v. Worthington, 14 Ir. Ch. Rep. 369, Ch. App. ANNUITY. A bond given to secure an annuity recited that G. H. C. had contracted and agreed with R. K. for the sale to him of a deferred annuity; and also recited that upon the treaty for the purchase of the annuity, it was agreed that the payment of it should be secnred by the bond of G. H. C. in a sufficient penalty and by his warrant of attorney for confessing judgment. Quare, in the absence of any further evidence of a contract to grant the annuity, could arrears of the annuity be recovered to a greater amount than the penalty of the bond? Cooke v. The Marquis of Donegal, 9 Ir. Jur. N.S. 41, Ch. E., for valuable consideration granted to D. and his heirs, an annuity of £35, charged upon freehold lands, upon trust for M., until her death or marriage; and by the same deed he covenanted that he would pay to M. a sum of £500 upon her marriage with the consent in writing of H. M. married without the consent of H. but with the knowledge and assent of E. E. by a deed subsequently executed conveyed the same lands to trustees, upon trust to secure to M. an annuity of £17 10s., "the same to be paid and payable to her until such time as she should be paid, or sufficiently secured, in a sum of £500, the same to be for her sole and separate use and benefit." Held, that the annuity of £17 10s. did not terminate on the death of M. Watson v. Powell, 14 Ir. Ch. Rep. 38, Ch. ARBITRATION AND AWARD. Upon the face of an award an expression appeared which was construed in one sense by the taxing-master, but in a different sense (as it appeared by the arbitrator's certificate subsequently given by him) by the arbitrator himself; nevertheless the Court, on motion to remit the award to the arbitrator for his explanation, refused to interfere with the interpretation put by the taxing-master on the expression used. Godfrey v. Broderick, 9 Ir. Jur. N.S. 359, Exch. ASSIGNMENT, COVENANT AGAINST, See MORTGAGE. [Bankruptcy and Insolvency. AVERMENT.. Proof of] To an avowry pleaded to an action of replevin the plaintiff replied that divers persons before and at the time of the demise in the plea mentioned, were in possession, seisin, and enjoyment of a portion of the premises as tenants in fee thereof under grants thereof by the defendants prior to the said demise. Upon the trial of an issue joined upon this replication the plaintiff proved the possession of the parties, but failed to prove that they derived under grants by the defendants. The judge told the jury that it was immaterial whether the parties had derived under the defendants or not; that it was the duty of the lessors to see that they did not undertake to demise more than they had a right to demise, or to give possession of; and that if they did so demise at a gross rent and afterwards distrained for that rent, they must be defeated in the action. Held, that this was a misdirection. Tyrrell v. The Irish Society, 9 Ir. Jur. N.S. 395, C. P.; s. c. 14 Ir. C. L. Rep. 493. BANKRUPTCY AND INSOLVENCY. the payment of a composition by an arranging trader, Proof of debts.] A party becomes security for and when two of the instalments are paid, the case is turned into bankruptcy. The creditors prove against the estate of the principal for their first bills, giving credit for the instalments paid. The surety then behis estate for two sets of unpaid bills. Such proof comes bankrupt, and the creditors seek to prove on will not be allowed, the creditors having made their Jur. N.S. 198, Bank. election. Re Sheehan and Feehan's Estate, 9 Ir. Order and disposition.] Where the owner of chattel property and of an establishment where he carried directions as to his affairs, or making any provision on his business leaves the country without giving any for his wife, and one of the trustees of the marriage settlement of that wife takes possession of those chattels which are made the subject of the settlement, and pays the wife a weekly sum for the hire of them with the consent of co-trustees, and they so remain with him to his bankruptcy, they will be held to be in bis order and disposition, and the true owner cannot claim them, it appearing that he knew of the arrangeMurray, 9 Ir. Jur. N.S. 98, Bank. ment but did not remonstrate against it. Re Angus Fraudulent preference.] A bank, being indorsee the trader in contemplation of bankruptcy took up of bills, on which a trader had forged acceptances, the bills, without pressure on him being made by the bank. The traders became bankrupt. Held, that the payment to the bank was a fraudulent preference. In re and Bankrupts, 14 Ir. Ch. Rep. 113, Ch. App. Debt fraudulently contracted.] A party bringing a frivolous or unfounded action, by which the defendant is put to costs, is a debt fraudulently contracted by the plaintiff in such action, who seeks to take the benefit of the Insolvent Act. Dunne's Case in 1 B. & J. Reports, adopted. Re Carpenter, 9 Ir. Jur. N.S. 20, Bank. Final examination.] Where a bankrupt is charged with forgery, and with making false entries in his books, and obtaining credit by false representations, his examination will be adjourned sine die; and al- | deed to bring in and lodge in the bankruptcy matter though the documents alleged to have been forgeries whatever they had realised under it, on the ground have been destroyed, and none of them forthcoming, that the deed was not protected inasmuch as it was a prosecution for forgery will be directed, as well as a an act of bankruptcy. Held-that having been privy prosecution for frauds against the bankruptcy law. and assenting to the provisions of the deed, although Re Patrick M‘Nevin, 9 Ir. Jur. N.S. 197. Bank. he did not execute it, he could not question its valiThe Court of Bankruptcy has no jurisdiction to dity; but held that the form of the deed drafted from make a certificate from the creditors of the bankrupt the ordinary lithographed precedent was objectionable, a condition precedent to passing the final examination. and did not entitle trustees to the benefit of the 93rd In re Burke, 14 Ir. Ch. Rep. 107. Ch. Ap. section; in fact, that such form is contradictory in its terms, as purporting to be for the benefit of all the creditors, and then attempting to exclude such creditors as did not execute it within a certain time named. Re John Smart, 9 Ir. Jur. N.S. 195. Bankr. Semble the Court has no power to adjourn the final examination of the bankrupt sine die for any misconduct of the bankrupt if his disclosures be full and true. lb. Committal.] There is no distinction in the examination of a bankrupt and a witness who is examined with regard to a bankrupt's property; the test in every case is, if the account given be such as a reasonable man can believe. Re Felix M'Cann, 9 Ir. Jur. N.S. 77. Bank. Semble-all creditors coming in before the trust fund is distributed are entitled to their dividends. Ib. Equitable mortgage.-Sale.] Where A. equitably mortgaged his property to B.'s creditors as a security for the debt of B., who afterwards becomes bankrupt, the Court of Bankruptcy ought not to order the sale It is not necessary, in a warrant of committal, to of A.'s property, and cannot adjudicate upon the refer to the particular answers that are deemed un-rights of third parties to, or the trusts upon that prosatisfactory; it is enough to refer to the evidence ge-perty. Re Purcell, a bankrupt, 9 Ir. Jur. N.S. 102. nerally, and ask the bankrupt or witness if he have any further or other account to give. Ib. Ch. Ap. Right of lien.] Where the assignees of a bankrupt dispute the right of lien and a doubt exists on the subject, the Court will not make an order to give up the property, but leave them to establish their right by law if so advised. Re Angus Murray, 9 Ir. Jur. N.S. 98. Bankr. Although the examination may disclose grounds for a criminal prosecution, that will be no bar to the Court exercising its jurisdiction to commit for unsatisfactory answering. The Courthas power to commit a witness for unsatisfactory answering to a criminal prison. A witness examined in Dublin may be com- Settlement of wife's property obtained after marmitted to Kilmainham, and not the Four Courts Marriage] Although an insolvent may obtain property shalsea. Ib. by his wife after marriage, he has no right to put it in settlement for the benefit of herself and children if he have creditors at the time. The Court, in order to compel the trustee of such settlement to reassign for the benefit of creditors, will discharge the order for hearing and not grant a new one until such assignment is made. But if the insolvent is in custody only at the suit of one creditor to whom a small sum is due, he will be remanded for two years at the suit of his creditors, with an intimation that if the trustee submits to the jurisdiciion of the Court the insolvent will be discharged. Re Clark, 9 Ir. Jur. N.S. 384. Bankr. Recommittal without warrant.] A witness committed by the judge of the Bankrupt Court for unsatisfactorily answering questions put to him on examination in a bankrupt matter, was again brought up for further examination and recommitted without a warrant. The recommittal was held bad. In re Daly, 9 Ir. Jur. N.S. 137. Exch. Arrangement clauses: turning arrangement into bankruptcy after certificate.] In an affidavit to verify a petition presented to the Court by an arranging trader, he states that the schedule of assets contains a true and full account of the property he has to be made available for the payment of the composition. And where creditors, relying on the truth of this, accept the composition offered, and the trader obtains his certificate, the creditors may, long after the certificate is obtained, bring the case by motion before the Court praying that the certificate may be withdrawn. The Court, on satisfactory evidence that leasehold property was omitted, and that the affidavit to support the petition was untrue, will withdraw the certificate and put the case into bankruptcy. Re an Arranging Trader, 9 Ir. Jur. N.S. 120. Bank. Trust deed.] A trader executed a trust deed, purporting to be for the benefit of all his creditors who would come and execute it within a month, and it was advertised in accordance with the provisions of the 93rd section of the Irish Bankruptcy and Insolvency Act, 1857. A creditor who had at first as sented to it, and afterwards, more than three months after its execution, obtained an adjudication against the trader, sought to compel the trustees under the BILL OF EXCHANGE. Plea of want of consideration.—Insolvency.] To an action against the acceptor of a bill of exchange by the indorsee the defendant pleaded that the bill was indorsed to the plaintiff to secure a sum due by the drawer of the bill before he was discharged as an insolvent, together with interest, &c., from which debt the drawer was duly discharged by virtue of the proceedings in the insolvency, of which the plaintiff had notice, &c., and also to secure a sum of £30 advanced by plaintiff to d fendant, and that save to the extent of the said sum of £30 (which the defendant brought into Court) there was no consideration for the acceptance by the defendant of the said bill of exchange. Held, upon demurrer, a bad plea. Bernal v. Croker, 9 Ir. Jur. N.S. 31. C.P. BILL OF SALE. A bill of sale and affidavit annexed thereto de scribed the attesting witness as "W. J. Miller, 21 Remmington street, Islington, in the county of Middlesex, now in no occupation." The witness had been in the militia, but at the time of the execution of the bill of sale had no occupation. Held-this was a sufficient description of the witness to satisfy the requirement of the first section of the Bills of Sale Act (17 & 18 Vict. c. 55). Trousdale v. Sheppard, 14 Ir. C. L. Rep. 370, Q. B.; s.c. 7 Ir. Jur. N.S. 275. CHARGE. By articles executed in the year 1784, previously to the marriage of A., lands were covenanted to be settled on A. for life, with remainder to trustees for a term, to raise £3000 for two or more younger children of the marriage, payable at twenty-one or marriage, with power to A. to appoint this sum as he might think proper among the younger children, with remainder to the first and other sons of the marriage successively in tail male, with remainder to the daughters as tenants in common in tail. There was issue of the marriage a son, P. S., and two daughters, M, and S. On the marriage of M., in the year 1807, A. appointed to M. £2000, part of the £3000 which was assigned to the trustees of the settlement. P. S., ou attaining twenty-one, joined his father, A., in suf fering a recovery, and the lands were resettled on A. for life, remainder to P. S. in fee. P. S. died in 1821, intestate, and unmarried, leaving M. and S., his co heiresses. On the marriage of S. with R. a settlement was executed, dated 14th April, 1823, by which A. & S., after reciting their title to the estate, but without taking any notice of the charge of £3000, conveyed S.'s moiety of the lands upon certain trusts, for the benefit of R., S. and their issue. In 1825 A. died, without making any further appointment of the charge of £3000; and on the 10th of December, 1825, S. and R. executed a deed purporting to assign the £1000, the unappointed residue of the £3000 charge, to the trustees of the Provincial Bank. It being conceded by all parties that the marriage articles should be construed as if they contained a hotchpot clause, Held-That in consequence of the execution of the settlement of S., her £1000 was not a subsisting charge on her moiety. In re Norcott's estate, 14 Ir. Ch. Rep. 315. L. E. C. land, filed a petition, which prayed, among other things, that the, commissioners be discharged from their trusts in the matter of the Fanning Charity, and that new trustees might be appointed. Held, that though the Court would have jurisdiction to interfere if there were any breach of trust, or misappropriation of the funds, yet the Court had no power to relieve the Commissioners from the trusts imposed on them by Act of Parliament. In re Fanning's Charity, 9 Ir. Jur. N.S. 146. Quare Whether the Court had power to frame a scheme of rules for the management of a charity under the control of the commissioners. Ib. Effect of stat. 10 G. 4, c. 7.] A testator by will, dated 15th November, 1861, bequeathed £500 to two Roman Catholic priests or the survivor of them, “to be applied as they shall deem best for the maintenance and education of two priests of the order of St. Dominick in Ireland;" also £500 to another Roman Catholic priest on a secret trust disclosed to him by the testator during his lifetime. Held, with reference to the former bequest (varying the Master's order) that it was a charitable bequest, but invalid, as being contrary to the policy of 10 Geo. 4, c. 7; but that not being contrary to any express provision contained in that Act, it was to be carried out cy pres under the sign manual and not by the Court. And with respect to the latter bequest (affirming said Master's order), that being given on an invalid trust, it was void absolutely, and could not be carried out cy pres. Simms v. Quinlan, 9 Ir. Jur. N.S. 404, R. CLERK OF THE PEACE. Clerks of the peace are entitled to a fee of 2s. 6d. upon every renewal of a publican's license. 3 & 4 W. 4, c. 68, ss. 2, 6, 10. Hawkins v. M Loughlin, 14 Ir. C. L. Rep., App. i., Exch. M'Loughlin, appellant; The Clerk of the Peace of Wexford, respondent, 2 Ir. Jur. p. 168 CONTRACT. The defendant, a Roman Catholic clergyman in Sheffield, through P, who was the superintendent of the Glasnevin Cemetery, Dublin, for the uses of a cemetery about to be opened in Sheffield, gave the plaintiff (a stationer in Dublin) an order, which, according to the evidence of P, was in the following Held a'so-That it could not be raised out of M.'s words, "One copy of each of the large books, and as moiety. Ib. Held also That M. was entitled to have £500, part of her appointed share of £2000, raised out of S.'s moiety. Savage v. Carroll, 1 B. & B. 265, disapproved of; Tenison v. Moore, 13 Ir. Eq. Rep. 424, followed. Ib. CHARITY. What is not within stat. 7 & 8 Vict., c. 97.] A bequest of a sum of money, for the purpose of building a church in Ireland is not within the 7 & 8 Vict. c. 97, s. 16, and is therefore valid, though the will be made within three months of the testator's death. Pollock v. Day, 14 Ir. Ch. Rep. 297, R.; s.c. affirmed on appeal, 14 Ir. Ch. Rep. 371, Ch. Ap. Jurisdiction of Court in cases of] The Commissioners of Charitable Donations and Bequests in Ire few as possible of the smaller books and forms." According to the plaintiff's evidence, P desired him to furnish "One book of the forms least in use, and a moderate quantity of the others, in proportion as they were used in Glasnevin Cemetery." The plaintiff forwarded to the defendant, through P, two of the large books and an excess in the "smaller books and forms," over the requirements of the Sheffield Cemetery, as ascertained by the evidence at the trial, together with a quantity of stationery, which had not been ordered at all, and included them all in the one invoice. Held, (following Levy v. Green, i El & El. 969) that the defendant was justified in rejecting the whole.-Christian, J., dissentiente. Shannon v. Barlow, 9 Ir. Jur. N.S. 229, C. P. And per Christian, J., that the case was distinguishable from from Levy v. Green as to the indefinite por tion of the order, 1st, because it was indefinite; and 2ndly, because it appertained to a certain measure or standard which was in the possession of the defendant, but not in the knowledge of the plaintiff; and that as to the portion of the order which was alleged to be precise, there was not evidence to show that the books in question were not amongst those most in use. And, that as to the stationery, which was not ordered, no case decided that where articles alterius generis were sent along with those ordered, the purchaser was at liberty to reject the whole of them. And that a verdict which, under these circumstances, specified the articles in the invoice, for which the jury thought the plaintiff entitled to recover, ought not to be disturbed. Ib. COPYRIGHT. The proprietors of copyright in a book need not, in an action for the infringement thereof, aver that the defendant published the plaintiff's book. The plaiut states a good cause of action if it avers that the defendant published parts of the plaintiff's book. Rooney v. Kelly, 14 Ir. C. L. Rep. 158, Q. B.; s. c. 7 Ir. Jur. N.S. 213. Such a cause of action is not answered by a plea in confession and avoidance, to the effect that the book of the plaintiff and the books of the defendant were composed by one and the same author, from common sources of information, "and that no part of defendant's said books, or either of them, was copied or colourably altered from the said book of the plaintiff." Ib. COVENANT. A deed of assignment of the premises, demised by a lease dated the 20th of October, 1824, for a term of 500 years, contained a covenant on the part of the assignee to expend £2,000 in building houses, within seven years from the 1st of September, 1855. The deed contained a clause of re-entry for breach of the covenant. By a subsequent indorsement under seal, dated the 12th of November, 1856, after reciting that the assignee had built one house, and was desirous to let the remainder of the premises for building ground, the following covenant was entered into on the part of the assignor:-"That in case any penalty or forfeiture shall be incurred under and pursuant to, and for non-performance of the clauses, covenants, and agreements in the deed reserved, that, in such case, such penalty or forfeiture shall not in any manner affect the interest of the persons who may be tenants to said within premises, so as in any manner to deprive such persons of the full benefit of their respective holdings:" and that in case such forfeiture were incurred by the assignee, "that then and in such case, such penalty or forfeiture shall not in any manner whatscever, interfere with or affect the interest or property of the persons who might be tenants to said demised premises under the said assignees, &c., so as in any manner to deprive them of the full benefit and advantage of their respective holdings upon the premises; and that in case of any such penalty being incurred, and that any proceedings were taken and rendered effectual on account thereof, the assignor, instead of the assignee, should be entitled to recover and receive the rents to be payable by such persons so becoming tenants to said premises; and that such persons should not be liable to pay any greater sum than the rent originally reserved." The assignee having failed to perform the covenant within the specified period, the assignor brought an ejectment on the title, for breach of the covenant. Held, that notwithstanding that the deed of assignment transferred to the assignee the whole of the interest of the grantor, he might re enter for condition broken. Colville v. Hall, 14 Ir. C. L. Rep. 265, C. P.; s. c. 8 Ir. Jur. N. S. 303. Held also, that the indorsement did not amount to a release of the condition in the principal deed, but merely to a covenant not to disturb the under-tenants. Ib. Heldalso, that the fact that a receiver had been appointed, and acted over a portion of the premises, on foot of a judgment, registered as a mortgage, obtained by the assignor against the assignee for arrears of rent, did not amount to an eviction, so as to prevent the assignor from taking advantage of the breach of condition; and that the receipt by the receiver, from an under-tenant, of rent, which accrued due after bringing the ejectment, did not operate as a waiver of the forfeiture. Ib. Whether absolute or qualified.] A was, under his marriage settlement, tenant for life of certain leasehold property held for a term of fifty-two years, with remainder to his wife for life, remainder to the children of the marriage absolutely. By deed reciting the settlement, that there were two children of the marriage, both infants, that there was a contract for purchase of the property, and that inasmuch as the children were incompetent to convey, A had agreed to covenant for their execution of the deed on their reaching twenty-one, the trustees of the settlement, A and his wife, joined in conveying the leaseholds for the residue of the term to a purchaser according to their several interests; then all the conveying parties covenanted that notwithstanding any act done by them or any of them, they or some of them had good title to convey "for the residue of the term in manner aforesaid, according to the true intent of these presents." They also covenanted against incumbrances, and for further assurance; and finally, A covenanted for the execution by the children of the marriage as they should attain twenty one. Held, that on the true construction of the entire deed the covenant for title was not absolute but qualified, and that there was not any breach of it in consequence of A and his wife having only life estates. Doyle v. Kinsley, 9 Ir. Jur. N. S. 26. Ex. Cham. Where a deed of assignment, after reciting that under a certain deed A was seised and possessed of certain premises, and that he had agreed with the plaintiff for the sale of all the defendant's estate and interest under the same deed, to the plaintiff, witnessed that the defendant did grant, &c., and assign unto the plaintiff, the premises, to hold same to him, his heirs, executors, &c. for ever; and also contained a covenant that the defendant then had in himself good right, full power, and lawful authority to make that conveyance of his estate and interest under the said deed to the plaintiff, his heirs, executors, &c. Held, that this was not an absolute covenant that A had power to convey a freehold estate, but only that he had power to convey such an estate as he took under the said deed. Delmer v. M'Cabe, 14 Ir. C. L. Rep. 377, C. P.; s. c. 8 lr. Jur. N. S. 236. Covenant to settle after-acquired property.] Where a settlement contains a covenant that all the real and personal estate of the settlor whereof he then was, or should at any time thereafter be possessed or entitled unto, should stand charged with the payment of a certain sum of money for the trusts in the settlement mentioned, such covenant to charge after acquired property is not capable of registration under the Registry Acts, so as to give the settlement priority over aubsequent purchasers for value without notice of the after acquired lands. Gubbins v. Gubbins, 1 Drury & Walsh, considered, and held not to be a decision to the contrary. Re F. & W. Olden, 9 Ir. Jur. N. S 297, Bank. CRIMINAL LAW. Abduction.] A mother does not lose the possession of her child, an unmarried girl under the age of sixteen, by contracting a second marriage, and neither the consent of the girl herself, nor that of her stepfather, to her being taken away out of the possession and against the will of her mother, is any bar to an indictment and conviction under statute 24 & 25 Vic. | c. 100, s. 55. The Queen v. Norton, 9 Ir. Jur. N. S. 156, Crim. App. See EVIDENCE. CUSTOM. Obligation to inquire into custom of trade.] The defendant gave to the plaintiffs the following guaranty" 10th April, 1863-Gentlemen, I beg leave to inform you that at the request of Mr. John Ferguson, of Upper George's-street, Kingstown, who has lately opened an establishment of general merchant and dealer in groceries of all kinds, that I have consented to give you a general guaranty for a sum not exceeding £200 for any orders he may give you for the carrying on of his house of business at Kingstown, and for the goods you may supply him under this letter of agreement. This guaranty to be in force against me till recalled, reserving the right to do so when occasion shall require, and on notice to you." Held, in an action brought to recover the price of goods supplied to Ferguson by the plaintiffs, that the defendant was not discharged by the plaintiffs having taken bills from Ferguson for the amount due to them, in accordance with what was proved to be the custom of the wholesale grocery trade of the city of Dublin, he being under an obligation, if he did not know, to inquire as to the usage upon which the trade was carried on. Woods and others v. Armstrong, 9 Ir. Jur. N.S. 292, C. P. Held, also, as to a portion of plaintiffs' demand, which consisted of duty on tea, advanced by the plaintiffs, that the same was a part of the price of the tea. Ib. See EVIDENCE. DAMAGE. defendant, under an agreement in writing, undertook Semble, That the rule laid down in Hadley v. DEED (CONSTRUCTION). A fund was, by a deed of 1841, vested in trustees, in trust for such of four persons as should be living at the determination of life interests limited to their father and mother. On the marriage of A, one of the four, her father being still living, a settlement was executed, which recited an agreement that a share of £2,700 and the one-fourth share of the fund, and the interest thereof to which A should become entitled, should be conveyed to trustees upon certain trusts, and by which A assigned to the trustees the share of £2,700, and all and every other sum or sums of money or other property to which she might thereafter become entitled, upon certain trusts as to the share of £2,700; and upon trust after the decease of A and L, her intended husband, to permit the children of the marriage to receive the interest of the share of £2,700, and every other sum or sums of money to which A might become thereafter entitled in such shares &c. as A and L or the survivor should appoint, and in default of appointment as to the principal, equally among the issue of the marriage; and if but one child, for such child only; and it was agreed that the one-fourth of the trust fund, or any other sum to which A might thereafter become entitled under the settlement of 1841, should, when received by the trustees of that deed, be paid by them to L, or his assigns, should A be then living, and not otherwise, the same to be for his sole use and benefit. L died, leaving a son a minor, and his wife A surviving him, and A's father afterwards died; Rule as to proximateness or remoteness of] The whereupon the trust fund under the deed of 1841, |