following-that is to say, upon trust, out of the proceeds thereof, to pay and distribute to and among the several persons, parties thereto, of the third part, a composition of 2s. 6d. in the pound on the amounts of their said respective debts; and after payment thereof, upon trust to hand over the surplus (if any) the defendant; and, for the considerations aforesaid, "each of the said persons, parties thereto of the third part, did thereby, for himself, his partDers, administrators, and assigns, release and absolutely discharge the defendant, his executors, &c., of and from the payment of the said respective debts, and of and from all claims and demands in respect thereof :" provided always, that the deed should not be binding on any creditor, party thereto, to whom the composition should not be paid "within seven days from the time of such creditor executing the said deed." The plea then averred, that the indenture was a trust deed for the benefit of creditors, and a composition deed, within the true intent and meaning of the Bankruptcy Act, 1861; and that a majority in number, &c. approved of it, and that all the conditions in sect. 192 were observed; that the plaintiff, before and when the deed was made, was a creditor, and that all things had been done and happened to render the deed as binding on the plaintiff as if he had actually executed it, and to release the defendant from the plaintiff's claim by force of the deed and of the statute in that behalf. Demurrer, and joinder in demurrer. The Court of Exchequer held the plea no bar to the action. Gilbon, for the defendant.-It was open to all creditors to sign the deed. No creditor was excluded from the composition. The plea avers, that all the conditions required by sect. 192 of the Bankruptcy Act had been complied with. The plaintiff's claim is barred by the deed. [He cited Ex parte Spyer (32 L.J., Bank., 63).] Field, Q. C., contra.-The deed confines all benefit copy was annexed to the bill of sale, and the original bill of sale, with this copy, was duly registered in accordance with the provisions of the Bills of Sales Act, the 17 & 18 Vict c. 36. The defendant's name was on each sheet of the original inventory, but was omitted on the copy. It was objected, on behalf of the defendant, that there was no valid deed registered within the provisions of the Bills of Sales Act; that the schedule being disannexed destroyed the deed; and that, even assuming the copy to be correct, the plaintiff had no right to substitute a copy for the original. The jury found the copy registered was a true copy. The verdict was entered for the plaintiff, with leave to the defendant to move to enter it in his favour, if the Court of Exchequer should be of opinion that the bill of sale in dispute was not registered within the provisions of the 17 & 18 Vict. c. 36. A rule nisi was afterwards obtained, and cause was shewn, when the Court discharged the rule. Quain (Hawkins, Q. C., with him), for the defendant, contended that the Bills of Sales Act had not been complied with; that the registration of a copy was not sufficient; and cited Davidson v. Cooper and Another (11 M. & W. 778). Coleridge, Q. C. (Day with him), for the plaintiff.The registration was sufficient. The rule, that bills of exchange or bonds are destroyed by mutilation, does not apply to bills of sale. Even if the deed had been lost, the effects would pass, if a copy were registered in compliance with the act. ERLE, C. J.-The judgment of the Court below must be affirmed. The registration of the copy was sufficient. The other judges concurred. Judgment for the plaintiff. COURT OF EXCHEQUER. HILARY TERM. to the creditors who are parties to it. The plea should [Coram POLLOCK, C. B., MARTIN, CHANNELL, and shew that all the creditors are to benefit. A deed cannot be pleaded to an action by a creditor who was not an object of the deed. ERLE, C. J.-We are all of opinion that the judg PIGOTT, BB.] MOUNSEY v. ISMAY.-Jan. 18 and 25. horse-races. Prescription Act, 2 & 3 Will. 4, c. 71, 8.2—Right to hold ment of the Court below ought to be affirmed.-Judg-A right to hold races is not an "easement," within the 2 & ment for the plaintiff. 3 Will. 4, c. 71, s. 2. GREEN v. ATTENBOROUGH.-Dec. 2. Bill of sale—Schedule of effects-Copy-Registration. The schedule of effects to a bill of sale made to the plain- Fifth plea-that for the full period of twenty years fiff, being written on separate paper, became disannexed next before this suit, on a certain day in each and every from the bill of sale and lost; a copy of the schedule was year, to wit, on Ascension-day, commonly called registered with the original bill of sale:-Held, that by Holy Thursday, horse-races have been, and of right the registration of the copy with the bill of sale, the ought to have been, and still ought to be, holden on a plaintiff had complied with the 17 & 18 Vict. c. 36. piece of land, in the extra-parochial hamlet of KingsAppeal from a judgment of the Court of Exchequer. moor, in the said county (being in the neighbourhood An interplead er issue, in which the plaintiff was the of the said city of Carlisle), and for the full period of plaintiff, and the defendant the defendant, was tried twenty years next before this suit, the freemen of the in London, before Pollock, C. B., when the follow- said city of Carlisle on the day aforesaid, in each and ing facts were proved:-In the month of Septem- every year have, during all the time aforesaid of right, ber, 1862, the defendant being in want of money and without interruption, enjoyed, and claim to enjoy, applied to the plaintiff for a loan, on the security as a custom, a certain reasonable and laudable right of the defendant's household furniture and effects. and privilege-that is to say, that the freemen of the A bill of sale was prepared by the plaintiff's attorney, said city of Carlisle, on the day aforesaid in each and and executed by the defendant. There was no inven- every year, should enter into and upon the said piece tory of the effects taken at the time, but an imperfect of land in the said hamlet, for the purpose of holding inventory had been previously taken by the plaintiff, horse-races thereon; and the said freemen of the said and this imperfect inventory, consisting of several city of Carlisle, on the day aforesaid in each and every locse pieces of paper, was appended to the bill of sale, year, without interruption, have, during all the time but afterwards became disannexed, and lost. Some aforesaid, been used and accustomed to enter, and of days afterwards, and before the bill of sale was regis- right have entered, and ought to have entered, and tered, a copy was made of this inventory, and this still of right ought to enter, into and upon the said The delaration was for breaking and entering a close of the plaintiff, and pulling down a bank and tearing up thorns, &c. (See 9 Jur., N. S., 306). piece of land in the same hamlet, for the purpose of holding horse-races thereon. Averment, that the close, &c., at the time when &c., was parcel of the said piece of land in the said hamlet, wherefore the defendant, being one of the freemen of the said city, broke and entered the said piece of land and the said close in the declaration mentioned on Ascension-day, in the year of our Lord 1862, for the purpose of holding the said horse-races; and because the plaintiff a short time before the time when &c., had wrongfully placed and erected fences, posts, and rails, and a bank and thorns upon the said land, and the part of the said land where the said horse-races were accustomed to be held as aforesaid, and continued to keep the same there placed and erected until the said time, when &c., insomuch that the said freemen were unable to hold the said horse-races, as they were accustomed and of right entitled to do; wherefore the defendant, being one of the freemen of the said city, for the purpose of enabling the said horse-races to be held as aforesaid, did on the second day remove the said fences, posts, and rails, and the said bank and thorns, doing no more damage thereto than was necessary for the purpose aforesaid; which are the trespasses alleged in the declaration. The sixth plea alleged the right and custom to have existed for forty years. The seventh and eighth pleas laid the right, &c. in the citizens of Carlisle for twenty and forty years respectively. The ninth, tenth, eleventh, and twelfth pleas claimed a right to enter the land before Ascensionday for the purpose of preparing for the races, and justified accordingly. (See 9 Jur., N. S., 306). Demurrer to the above pleas, and replication to all, that at the commencement of the twenty and forty years before this suit, there was no vested or legal custom, as mentioned in the pleas. Joinder in demurrer on the pleas, and demurrer to the replication and joinder in demurrer. The case was argued by C. Hutton, for the plaintiff, who contended that the freemen of Carlisle, or the citizens, were not a class of persons capable of enjoying by grant such a right as was claimed in the pleas. He further contended that the right or custom claimed was not one which was included under the 2 & 3 Will. 4, c. 71, s. 2. Crompton, for the defendant. C. Hutton, in reply. [Pollock, C. B., and Martin and Channell, BB., expressed themselves as being of opinion that the pleas were bad; but Pigott, B., having expressed a contrary opinion, the case stood over for further consideration.] Cur, adv. vult. 18 to the first above demurred to, save that the right was alleged to be in the citizens of Carlisle. The next was similar to the last, save that the user was alleged to be for forty years. The four pleas following were substantially the same as the preceding, and one objection only was made to all of them, viz. that the custom alleged was not within the Prescription Act. Some short time ago this custom was the subjectmatter of discussion before us; it was there pleaded as a custom at common law, and we were of opinion that it was a good custom. The case is reported in 1 H. & C. 729. The present pleas have been added since. It is perfectly clear that such a right as is here set up can only exist by custom; a grant of such right to the freemen of Carlisle, or the citizens of Carlis would be void; such bodies as the freemen of a city or the citizens of a city, not being themselves a corpora tion, are incapable of being grantees. And there is probably, another objection to it, as not being a legal subject of grant or only of license. The question, therefore, really comes to this-assuming that the owners of this close had, forty-one years before the commencement of the suit, by parol, granted to, or conferred upon, the freemen of Carlisle, or the citizens of | Carlisle, this right, and that they had, during the forty years preceding the suit, in fact, exercised it as a right, and without interruption, would the operation of the 2nd section of the statute render it absolute and indefeasible, notwithstanding that the origin of it could be clearly and satisfactorily proved, and that it began shortly before the commencement of the period of the forty years? The occasion of the enactment of the Prescription Act is well known. It had been long established, that the enjoyment of an easement as of right for twenty years was practically conclusive of a right from the reign of Richard I; or, in other words, of a right by prescription, except proof was given of an impossibility of the existence of the right from that period. A very common mode of defeating such a right was proof of unity of possession since the time of legal memory. To meet this, the grant by a lost deed was invented; but in progress of time a difficulty arose, in requiring a jury to find, upon their caths, that a deed had been executed, which every one knew never existed. Hence the Prescription Act. the claim The 1st section of the act relates to profits à prendre, and the respective periods therein mentioned, as thirty years and sixty years. The present case is not alleged to be within it. The pleas are all grounded upon 2nd, which enacts, "that no claim which may be lawfully made at common law, by custom, prescription. or grant, to any way or other easement, or to any watercourse, or the use of any water to be enjoyed upon any land, &c., and such way or other matter MARTIN, B., now delivered the judgment of the shall have been actually enjoyed by any person whole Court. This is a demurrer to pleas. The de- ing right thereto, without interruption for twenty claration is, trespass for breaking and entering a close, years, shall be defeated or destroyed by shewing only and breaking down the fences, &c. There are several that such way or other matter was first enjoyed, a pleas which are demurred to. They are all grounded at any time prior to such period of twenty years; and upon the Prescription Act, 2 & 3 Will. 4, c. 71. The when such way or other matter should have been so first alleged, that for the full period of twenty years enjoyed for the period of forty years, the right thereto next before the suit, on a certain day in every year, should be deemed absolute and indefeasible, unless it viz. Ascension-day or Holy Thursday, horse-races shall appear that it was enjoyed by a consent or agree had been of right, &c., holden on a certain piece of ment by deed or in writing." The question which has land, whereof the close in which &c. was parcel; and been argued before us, and which is the true one, is for the same full period of twenty years the freemen whether a custom for the freemen or citizens of Car of the city of Carlisle had of right, and without inter-lisle, upon Ascension-day, to enter upon another man s ruption, enjoyed a custom that they should enter upon the said piece of land, for the purpose of holding horseraces thereon; and the said freemen had, during all that time, used, &c. The pleas proceeded to justify the trespass by virtue of the custom, in the usual manThe next plea was the same, alleging the use of the custom for forty years. The next plea was similar ner. land for the purpose of holding horse-races, is a easement within the 2nd section. To be so to a way other easement, it must be within the words "custom, prescription, or grant to any way or other easement, of to any watercourse, or the use of water to be enjoyed upon the land of another;" and we think it is not. In the first place, we do not think this custom is an ease COURT OF PROBATE. mert at all. One of the earliest definitions of an easement with which we are acquainted, is in the Termes de h Ley, and it is a privilege that one neighbour hath of another, by writing or prescription, without profit, as a way or sink through his land. In this definition, custom is not mentioned; prescription is, and it, therefore, seems to point to a privilege belonging to an individual, not to a custom which appertains to many, as a class. Again: in Mr. Gale's book (p. 5), an easement is defined, a very great number of authorities are collected, and it is stated in the most explicit terms, that to constitute an easement there must be two tenements-a dominant one, to which the right belongs, and a servient one, upon which the obligation is imposed. We further think, that the 2nd section itself points to a right belonging to an individual in respect of his land, not to a class, such as freemen or citizens claiming a right in gross, wholly irrespective of land; for to obtain the benefit conferred by the section, it must be enjoyed by a person claiming James Smith, late of Penn, Staffordshire, licensed right thereto for the full period of twenty years or forty victualler, died on the 25th December, 1863. He exeyears. We are not aware of any case or expression of cuted a will, dated the 7th June, 1853, in which he opinion by any judge contrary to this view, but the appointed his wife Hannah Smith, sole executrix and 5th section of the act has been relied on as establish- universal legatee for life, and on his death he ordered ng it. This section relates to pleadings, and enacts, his property to be divided between his nephews and that in all pleadings to actions of trespass and other nieces (of whom Thomas Smith, the plaintiff, was pleadings wherein, before the passing of the act, it one), and his sister-in-law Elizabeth Horton. After work have been necessary to allege the right to have the death of his wife, the deceased had another will existed from time immemorial, it shall be sufficient to made, in which he gave all his property to the plainallege the enjoyment thereof as of right by the occu- tiff, with whom, at that time, he resided. This will pier of the tenement in respect whereof the same is was dated the 24th December, 1862, but was imperclaimed. It has been said that this shews that an ease- fectly executed, it having been signed by the deceased ment within the protection of the statute must be an in the presence of only one witness. After the death easement belonging to a dominant tenement. We think of James Smith, the defendant Thomas Smith, his it affords an argument and illustration as to what this brother and next of kin, applied to the plaintiff, and Legislature contemplated; but after what fell from was informed by him that the deceased had left no the Court in Welcome v. Upton (5 M. & W. 398), and will. Subsequently, in February and March, 1864, in the same case (6 M. & W. 536), and the notes of Mr. Hogg, on behalf of the defendant, wrote three the late Mr. Henry Willes, in page 652 of the edition letters to the plaintiff, asking for information as to the of Gale on Easements, edited by him, we are not pre-property of the deceased, and informing the plaintiff pared to say that the statute may not extend to easethat the defendant intended to take legal proceedings ments in gross; although it is to be observed that all in the matter. No answer was returned to either of which Lord Wensleydale says in the last reports of these letters. On the 11th May, 1864, the defendant the case is, "We might be disposed to think that the Mr. Thomas Smith, as brother and next of kin of the present case (an alleged easement in gross) is within deceased, took out letters of administration of his the equity of the statute." And he goes on to add, effects. On the 13th May Mr. Hogg wrote again to that the question was there immaterial. But however the plaintiff to this effect:-"I now make a formal this may be, we are of opinion that, to bring the right demand for the delivery of all papers and documents within the term "easement" in the 2nd section, it in your possession, and articles of value, &c., otherwise must be one analogous to that of a right of way which I shall bring an action of detinue." On the 1st July, precedes it, and a right of watercourse which follows 1864, the plaintiff took out a citation, calling upon the it, and must be a right of utility and benefit, and not defendant to bring in the letters of administration granted to him, and to shew cause why they should not be revoked, and why administration, with a will, dated the 7th June, 1853, of the effects of the deceased, should not be granted to the plaintiff. The defendant thereupon brought into the registry the letters of administration granted to him, and opposed the grant of administration as prayed, to the plaintiff. The plaintiff propounded the will dated the 7th June, 1853, and the defendant pleaded that it was not executed in accordance with the statute; at the same time he gave notice that he only intended to crossexamine the witnesses produced by the plaintiff in support of the will. Only one witness was produced. At the termination of his examination, SMITH V. SMITH.-Jan. 22. Administration called in-Will proved-Delay-Costs. The defendant, next of kin of the deceased, having been led by the plaintiff, with whom the deceased lived at the time of his death, to suppose that there was no will, took administration of the effects of the deceased. Six months after the death of the deceased, and two months after administration had been granted, the plaintiff produced a will. The defendant called upon him to propound it :-Held, that the defendant was entitled not only to be repaid the costs of taking administration, but also of putting the plaintiff to proof of the will. It would seem that, in such a case, if the assets be insufficient to satisfy the costs of both parties, the party propounding the will will have a preferable claim for payment. ore of recreation and amusement. In my opinion, therefore, the present alleged right is not within the language or meaning of the PrescripAct; and we are satisfied that it was never in the contemplation of the Legislature who framed it (Lord Wen-leydale, 5 M. & W. 404), to include within the act such customary rights; as entering land to enjoy rural sports, as in Mellishant v. Johnson (Willes, 202); or to dance upon a green, as in Abbot v. Weekly (1 Lev. 170). by analogy to which we held this alleged cus tomary right to run horse-races a lawful one at coma law. What we think he contemplated were incorporeal rights, incident to and annexed to property for its more beneficial and profitable enjoyment, and not customs for mere pleasure. In onion, therefore, the pleas demurred to are bad, aur judgment is for the plaintiff.-Judgment jor tl Auintiff. Searle, for the defendant, stated that he could not dispute that the will was duly executed, but he asked that the defendant might be paid out of the estate, not only the expenses of taking administration, but also the costs of putting the plaintiff to proof of the will. The plaintiff had caused these expenses by keeping back the will so long after the death of the deceased. Spinks, for the plaintiff, admitted the defendant was entitled to the expense of taking administration, but denied that he was justified in putting the plaintiff to proof of the will. Sir J. P. WILDE.-I think, under the circumstances, the defendant's costs ought to be paid out of the deceased's estate. Proof has been given of the due execution of the will of the 7th June, 1853, but no evidence has been offered to shew why it was not forth coming at the time of the death of the deceased. It seems there was a subsequent will, which was imperfectly executed; but why was not a proper search made for other testamentary papers? And why was not the will now brought forward then produced? It is admitted that, as regards the expenses of taking administration, the defendant is entitled to be repaid them, for that step was forced upon him by the plaintiff. And as to the costs of this suit, it was not unnatural or improper, seeing that no satisfactory account was given why the will was not produced in the first instance, for the defendant to put the plaintiff to the proof of it, and I think he is entitled to these costs. Spinks said he was informed that the estate was not sufficient to satisfy all the costs. He submitted that the plaintiff was entitled to repay himself first. Sir J. P. WILDE thought so too, but referred the matter to the registrar to report as to the amount of the property, and of the costs on either side. [Before ERLE, C. J., CHANNELL, B., and BLACKBURN, KEATING, and MELLOR, JJ.] REG. v. JOHN MUTTERS.-Jan. 21. Larceny-Adulterer—Master and servant. The prisoner, who was in the employ of the prosecutor, went away with the prosecutor's wife, with the intention of committing adultery, and, when going away, was concerned in taking some of the property of his master. The wife's evidence was, that he had by her orders assisted her in taking away the property:-Held, that the prisoner was guilty of larceny. Case stated by the chairman of the quarter sessions for the county of Devon: At the general quarter sessions of the peace, held on the 18th October, 1864, John Mutters was indicted, for that, on the 28th July, 1864, at St. Leonard, in the county of Durham, whilst he was servant to Samuel Fluellin, he did feloniously steal thirteen spoons, two pair of sugar-tongs, one watch, two boxes of the goods and chattels of the said Samuel Fluellin, his master; and, in a second count, for simple larceny of the above-mentioned articles. The evidence was set out in the case, and, so far as it is material, was as follows: Samuel Fluellin. The prisoner works for me; my wife had no property of her own when she married; after our marriage my aunt gave me eight tea spoons; I had some other spoons, which my wife bought, but it was with my money. The watch mentioned in the indictment was given to my wife by a cousin of her's before we married. Very soon after our marriage, she gave it to me. Before the 28th July I had a large box in my house, which I missed on that day, as I also did some spoons and sugar tongs; my wife and the prisoner were also gone. We went to Exmouth regatta on the 27th, and came home in a trap, my wife, the prisoner, and I; we had a quarrel on the road as we came back. Phillippa Gage.-I live near Mr. Fluellin's house, The prisoner lives with his mother opposite. On the 28th July he brought a cord out of his mother's house, and went into the prosecutor's. He and his brother brought out a box. Mrs. Fluellin was running to and fro between the house of the prisoner's mother and her home. Leah Slade.-On the 28th July the prisoner and Mrs. Fluellin came to my house; they stayed two nights, and occupied one bed-room. John Pierce, police constable.-On the 30th July I went to Mrs. Slade's. I found the prisoner and Mr Fluellin together in a bed-room, and charged him with stealing the spoons and the other articles mentioned from the prosecutor. He said, "I've not stolen any thing. What I have taken away is with her consent," nodding to Mrs. Fluellin. She then said, "Yes, I told him to get a fly and take the boxes." I pointed to one box and said, “That is Mr. Fluellin's" (the prosecutor). She said, “Yes, that is the only thing which I have got of his." I took this watch, which I now produce, from the prisoner's person. I afterwards examined a box in the room which the prisoner admitted to be his, and which, at my request, Mrs. Fluellin opened. In it I found on the top several articles of female wearing apparel, and under these some silver spoons and some sugar tongs. I found also a bill and a prayer-book, both with the prisoner's name on them. He said, "I did not know the silver was there. The watch is Mrs. Fluellin's; I got it from her." Mary A. Fluellin, for the defence.-I am the wife of the prosecutor. As we returned from the Exmouth regatta, my husband abused me all the way to Exeter, and threatened to throw me out of the cart. I told him that I would not live with him any longer, nor sleep with him again. I did not sleep with him that night, but sat up in the house of the mother of the prisoner. Next morning (the 28th) I ordered the prisoner to get a fly, and take away the boxes, because I was going to leave. He was not there while I was packing. He did not know of my putting in the spoons or sugar tongs. The watch was given to me by a cousin of mine before I married. He (the prisoner) knew nothing of it. I took money, about 71. or 81., from my husband's desk to pay the fares to Bath. I paid the prisoner's fare as well as my own. I was about an house. The box was afterwards locked. I had the key. hour packing up my things in his box in his mother's The counsel for the prisoner objected, that the charge against the prisoner could not be maintained. on the ground that he was acting under the control of his mistress, and that she could not be legally charged with stealing from her husband. The court decided that the case must go to the jury. The chairman charged the jury to the effect, that if the prisoner and the prosecutor's wife went away with the intention of carrying on an adulterous intercourse, and if he, when so going away, was concerned in taking away the property of the prosecutor, he was guilty The jury convicted the prisoner. A case was upon the point raised by the prisoner's counsel. granted Carter appeared on behalf of the prisoner, and argued that there was no felonious intent; citing Reg. v. Thurborn (1 Den. C. C. 388); Re.c v. Rosenberg ( Car. & K. 233); Reg. v. Thomson (1 Den. C. C. 549); and Reg. v. Featherstone (1 Dear. C. C. 369). Bere, for the prosecution, was not called on. tion should be affirmed; taking the articles animo ERLE, C. J.-We are all of opinion that the convicadulterii completed the offence.-Conviction affirmed. COURT OF CHANCERY. til the 6th April, 1843, to let and demise the same. And the testator thereby declared, that after that ditaments; and as to the money arising from the sale, GREEN V. GASCOYNE.-Dec. 9 and 10, 1864, and Jan. 12, time the trustees should sell the said land and here 1865. Will-Construction- Accumulation-Heir-at-law-39 and the rents, issues, and profits, until the same should & 40 Geo. 3, c. 98, s. 1-Thellusson Act. A testator devised real estate to trustees in fee, upon trust be sold, he bequeathed the same to the trustees, upon the several trusts declared with respect to the money arising from the sale of the residuum of his personal estate. And as to all his personal estate not thereinbefore disposed of, the testator gave and bequeathed the same to his trustees, upon trust, as soon as conveniently might be after his decease, to sell and convert the same, and stand possessed thereof, and of the moneys arising from the sale of his said lands, and also of the rents of his said estates, until the same should be sold, and all accumulations thereof, and also the rents of the said estates after the same should become saleable, upon trust for the children of his brother Jonathan, as therein mentioned. And in the said will was contained a proviso, that in the meantime, and until all his said lands should be sold, his said trustees should, subject to the payment of his debts, &c., stand possessed of the rents of his said lands, upon trust to pay certain annuities previously charged thereon; and upon further trust to place out and invest the residue of the said rents, issues, and profits which should not be applied for the purposes aforesaid, at interest on securities, and receive the dividends of the said trust moneys, and invest the same, so that the same and the resulting income might accumulate in the way of compound interest; and when and so soon as the said several estates should be sold, or become saleable, then upon trust to stand possessed of the said rents, issues, and profits, and the accumulations thereof, upon and for the trusts and purposes thereinbefore declared concerning the The stat. 39 & 40 Geo. 3, c. 98, cannot be applied to money arising from the sales of the said estates respecaccelerate the enjoyment of any gift or disposition con tained in a will. tively. On the 24th September, 1854, the twenty-one years Although the trust for accumulation is cut down by force sister, who survived his wife, was still living, and the had elapsed from the death of the said testator; his of the statute, the interpretation of the language of the suit was instituted to ascertain the rights of the parwill must remain in point of disposition precisely as if ties. The heir-at-law claimed the rents to be accuthere had been no such operation performed by the sta-mulated under the direction in the will between the expiration of the twenty-one years and the death of the sister. tute. Sir R. T. Kindersley, V. C., held, that the residuary devisees of the real estate, and not the heir-at-law, were entitled. The heir-at-law now appealed from the decision. Glasse, Q. C., and Freeman appeared for the appellant. Baily, Q. C., and Shebbeare, for the residuary devisees. Osborne, Q. C., and Glaister, for other parties. This was an appeal by Thomas Gascoyne, the heirst-law of Henry Gascoyne, the testator in the cause, who by his will, dated the 22nd October, 1832, after directing payment of his debts, funeral and testamentary expenses, and the expenses incurred by the admission of his trustees to his copyhold estates, out of the rents and profits of his real estate, until the same should be sold, and bequeathing certain ananities devised to his trustees and their heirs, a certain freehold farm (subject to certain annuities), apon trust during the life of the testator's wife and The following authorities were referred to:-Smith ster, Sarah Smith, to demise and let the same, and v. Lomas (12 Weekly Rep. 949); Eyre v. Marsden (2 sland possessed of the rents, issues, and profits thereof Kee. 564: on app., 4 My. & C. 231); Macdonald v. the trusts, and for the intents and purposes there- Bryce (2 Kec. 276); 39 & 40 Geo. 3, c. 98, s. 1; Barfter expressed; and after the decease of the sur-rington v. Liddell (2 De G., Mac., & G. 480); Trickey v. vivor of them, his said wife and sister, Sarah Smith, Trickey (3 My. & K. 560); and Gosling v. Gosling upon trust to sell and dispose of the said farm; and as (Johns. 265). to the money arising from the sale thereof, and the Tenta, issues, and profits thereof, until the same should be so sold, after the same should become saleable, the testator gave and bequeathed the same to his said trustees upon the several trusts, and to and for the several ends, intens, and purposes thereinafter declared or express.d, with respect to the money arising from the sale of the residuum of his real and personal estate. And the said testator further demised to his trustees two other estates, and all other lands and hereditaments not thereupon disposed of to his said trustees, upon trust (unless the same should have been previously sold under the powers therein before contained), unNo. 529, VOL. XI., New Series. LORD CHANCELLOR.—I will now state my present impression on this will, and I want to be particularly plain in doing so, that counsel may be thoroughly aware of the manner in which it strikes my mind. You may consider what I now shall state, as the result of my present opinion, and if, upon consideration, it should appear to any of the counsel engaged that there is an error in the view that I have taken, and that they should like to address themselves to my observations, I shall be glad to give an opportunity to them of having the case spoken to again by one counsel on either side in Hilary Term. Now, the case is that of a testator directing an acge |