CT. OF APP.] GUARDIANS OF W. DERBY UNION v. METROPOLITAN LIFE ASSUR. Soc. [CT. OF APP. The of all borrowing under the Act that borrowers may redeem under the Act whenever it is advantageous to them to do so. If this were thoroughly understood by lenders it would be taken into account by them, and would certainly embarrass borrowers not improbably to the extent of making all future borrowing for long terms impossible in many conditions of the money market. If the Act of 1871 has, by plain words of enactment or by necessary implication, brought about such an extensive change in the position of borrowers under the Acts and lenders to them, the result, however unexpected, must be acquiesced in; and if lenders, since the passing of the Act, have failed to realise the meaning of the statute, they have no legal ground of complaint; but before the construction suggested is accepted it must be shown to rest upon a clear basis. In my judgment there is no such basis, and, on the ordinary rules of construction, the rights of lenders under the Act are in no way interfered with. operative words in sect. 2 of the Act (independently of the proviso) seem to me altogether incapable of the meaning sought to be attributed. In terms they give only the capacity to borrow with a view to redemption (a most valuable extension of powers as regards the ratepayers), but do not profess to give, and in my judgment, as more fully appears below, are hardly capable of giving anything. There are two, and only two, parts of the section which can be relied upon by the guardians as giving new rights, the rest of the section dealing only with the conditions subject to which the rights or powers, whatever they may be, are to be obtained and exercised. These are as follows: 1. They (the guardians or managers) may apply to the Poor Law Board for an order to enable them to redeem the balance of the loan, and to borrow so much money as may be necessary for that purpose. 2. And if the said board shall issue their order in that behalf, the said guardians or managers may borrow the requisite amount to redeem such balance. The first part quoted shows the object of the application, and the second the result of an order made upon the application. In part 1 above quoted the only right given is a right to apply. The purposes of the application are, however, carefully indicated; they are to enable them to redeem and to borrow. The one word "enable governs both "redeem " and "borrow." In itself it has the primary meaning in the case of a person under any disability as to dealing with another of removing that disability, not of conferring compulsory power as against that other. But in such an Act as the present, one of a series which has never dealt with compulsory powers, but has been exclusively concerned with conferring capacity, the presumption already strong in favour of the primary meaning becomes almost irresistible. When we add to this that in order to use the word "enable " for the purpose required by the argument it must have one meaning in connection with 'redeem," and another in connection with "borrows," it may be said to be fairly demonstrated that the word cannot bear the meaning sought to be attributed to it. But the case by no means ends there. Part 2 above quoted is inserted for the express purpose of explaining and defining the effect of an order made upon an application under part 1, and it is confined strictly to removing disability or conferring capacity, the guardians and managers may borrow the requisite amount to redeem such balance. If it had been intended to confer a right of compulsory redemption, it seems almost impossible to explain why such an important right should not have been even glanced at when the effect of the order is being stated. I am quite unable to say, as matter of construction, that a compulsory power of redemption is here coupled with a mere capacity to borrow-compulsory borrowing is of course out of the question. I think that capacity, and capacity only. is being dealt with here as throughout the rest of the Acts. But then comes the proviso which has to bear the whole weight of the argument of the guardians. Now, no doubt a proviso may assist in determining which of two reasonable constructions of the clause upon which it is a proviso ought to be adopted, but hardly to give to that clause an entirely different meaning from that which standing alone it would bear. At any rate, such a controlling force can only be attributed to a proviso when it can be demonstrated to be entirely meaningless on any other supposition. Is that the case with the proviso in this section? I think not. It provides only that, in the event (meaning, I suppose, in case) of loans outstanding at the time of the passing of the Act, no such redemption shall take place without the consent of the persons to whom the loan shall be owing. I think that the word "such is emphatic and important. It means plainly a redemption under and by virtue of the preceding part of the section, that is to say, by money borrowed for the purpose. This seems to me to be the key to the meaning of the whole proviso. The section itself, on any construction of it, introduces an important power (the power of borrowing with a view to redeem) which had no existence before the passing of the Act. No real consent to a redemption in such circumstances could possibly have been given before the passing of the Act, for no one could foresee that such a change would arise. I read the proviso, therefore, as necessarily referring to and requiring a consent after the passing of the Act. But, although no real consent to such a redemption could have been made before the passing of the Act, there might have been, and probably were (as hereinbefore shown), consents to anticipatory redemption which, though made with reference to totally different circumstances, would in terms apply to the new state of things introduced by the Acts. To allow them to have such an operation would be manifestly unfair. The avoidance of this unfairness would be a reasonable, and is, I think, the true explanation of the introduction of the proviso. Expanded by construction, it means, notwithstanding any consent to redemption given before the Act, no redemption under the Act shall take effect without a consent given with reference to the new conditions. Of course this explanation would account for the fact that no reference is made in the proviso to loans incurred after the passing of the Act. All such loans would be contracted with the knowledge that the borrowers had not indeed a compulsory, but a facultative, power to redeem, and the parties would be left to make their own bargain as to redemption. If, as in the present case, the contracts and charges excluded the hypothesis of an anticipatory redemption by CT. OF APP.] DUMBELTON v. WILLIAMS, TORREY, AND FIELD LIMITED. compulsion, that would be enough. If, on the contrary, there was an agreement to accept redemption by anticipation, there would be no reason why further consent should be given when the section became operative. The result is that, in my judgment, the proviso is intended to place lenders before the Act not in a better, but only in the same, position as lenders after the Act. Sect. 3 of the Act, which plainly applies to all loans whether contracted before or after the passing of the Act, seems to me strongly to confirm the conclusion to which I have arrived as to sect. 2. It indicates a continuing appreciation, on the part of the Legislature, of the strict manner in which the powers of redemption of borrowers under the Acts are limited, and the same abstinence from interference with the contractual rights of lenders which is manifest throughout these Acts, and, so far as I know, in this class of legislation generally. To entitle the borrowers by one and the same Act to pay off a loan compulsorily, it may be twenty or twenty-five years before the time fixed by contract for payment of the last instalment, and at the same time to make the right of paying by half-yearly instead of annual instalments dependent upon the consent of the lenders, would be such an insistence of "straining at a gnat and swallowing a camel" as could hardly be attributed reasonably to the Legislature. I have assumed that the Government department, under sect. 2 of the Act, has nothing to do with the interests of lenders, as of course is the case if their authority only extends to increasing the capacity of borrowers. On the other construction the want of notice to the lenders would increase the arbitrary nature of the legislation, if, indeed, anything could be more arbitrary than an enactment authorising borrowers, who have stipulated in terms for a loan to continue for thirty years, to pay off that loan whenever it is to their advantage, without even the usual six months' notice to which an ordinary mortgagee is by law entitled when the day for redemption had passed, or any notice whatsoever. Appeal allowed. Solicitors: Travers Smith, Braithwaite, and Robinson; Evans, Foster, and Wadham, agents for J. and J. R. W. Thompson, Bradford; Sharpe, Parker, Pritchards, and Barham, agents for Cleaver, Holden, Garnett, and Cleaver, Liverpool. Wednesday, Feb. 17. (Before Lord ESHER, M.R., LOPES and DUMBELTON v. WILLIAMS, TORREY, AND FIELD APPEAL FROM THE QUEEN'S BENCH DIVISION. Practice - Payment into court before defenceDefence denying liability—Joinder of issue— R. S. C., Order XXII., rr. 1, 4, 6, and 7. In an action by the holder of a bill of lading for short delivery the defendants paid money into court, and served on the plaintiff a notice stating that the money paid in was enough to satisfy the plaintiff's claim. A month later they delivered a defence denying liability, on which the plaintiff joined issue. (a) Reported by E. MANLEY SMITH, Esq., Barrister-at-Law. [CT. OF APP. Held, that the defence and the joinder of issue ought to be struck out, and that the only question for the court was as to the amount of damages. THIS was an appeal by the plaintiff from the judgment of Williams, J., at the trial of the action without a jury. The plaintiff was the indorsee for value of the bill of lading for 803 bales of hay shipped on board the steamship Mobile at New York for carriage to London. The bill of lading was dated at New York, and was signed by the New York Shipping Company. The defendants were London agents for the New York Shipping Company. The action was brought to recover 1121. 13s. damages for the short delivery of the hay in London, and was commenced in Dec. 1893. On the 16th Jan. 1894 the defendants paid into court the sum of 74l. 78., and at the same time served upon the plaintiff a notice which followed exactly Form No. 3 in Appendix B. of the Rules of the Supreme Court. The notice stated the fact that they had paid into court the sum of 741. 78., and went on to allege that this sum was enough to satisfy the plaintiff's claim. On the 16th Feb. the plaintiff delivered his statement of claim. On the 17th March the defendants delivered their statement of defence, in which they denied any liability and also alleged that the sum of 741. 78. previously paid by them into court was enough to satisfy the plaintiff's claim. Upon this defence being delivered the plaintiff delivered a reply joining issue, and the action thereupon proceeded to trial. The money was not taken out of court by the plaintiff. At the trial of the action, before Williams, J. without a jury, the learned judge held that he had to try an issue of the liability of the defendants upon the bill of lading, and, as no evidence was offered by the plaintiff that the defendants were in any way parties to the bill beyond the alleged admission of liability by the payment into court on the 16th Jan., he held that the plaintiff had shown no cause of action and gave judgment for the defendants. The plaintiff appealed. By Order XXII. of the Rules of the Supreme Court it is provided as follows: Rule 1. Where any action is brought to recover a debt or damages any defendant may, before or at the time of delivering his defence, or at any later time by leave of the court or a judge, pay into court a sum of money by way of satisfaction, which shall be taken to admit the claim or cause of action in respect of which the payment is made; or he may with a defence denying liability (except in actions or counter-claims for libel or slander) pay money into court which shall be subject to the provisions of rule 6. Rule 4. If the defendant pays money into court before delivering his defence, he shall serve upon the plaintiff a notice specifying both the fact that he has paid in such money, and also the claim or cause of action in respect of which such payment has been made. Such notice shall be in the Form No. 3 in Appendix B., with such variations as circumstances may require. Form No. 3 in Appendix B is as follows: Take notice that the defendant has paid into court £ and says that that sum is enough to satisfy the plaintiff's claim (or the plaintiff's claim for &c.). To Mr. X. Y., the plaintiff's solicitor. Z., the defendant's solicitor. By rule 5, money paid into court before delivery of the defence shall be paid out to the plaintiff on his request, unless the court or a judge shall otherwise order. Rule 6. When the liability of the defendant, in respect of the claim or cause of action in satisfaction of which the payment into court has been made, is denied in the defence, the following rules shall apply: (a) The plaintiff may accept, in satisfaction of the claim or cause of action in respect of which the payment into court has been made, the sum so paid in, in which he shall be entitled to have the money paid out to him as hereinafter provided, notwithstanding the defendant's denial of liability, whereupon all further proceedings in respect of such claim or cause of action, except as to costs, shall be stayed; or the plaintiff may refuse to accept the money in satisfaction and reply accordingly, in which case the money shall remain in court, subject to the provisions hereinafter mentioned. (c) If the plaintiff does not accept in satisfaction of the claim or cause of action in respect of which the payment into court has been made, the sum so paid in, but proceeds with the action in respect of such claim or cause of action, or any part thereof, the money shall remain in court, and be subject to the order of the court or a judge, and shall not be paid out of court except in pursuance of an order Rule 7. The plaintiff, when payment into court is made before delivery of defence, may within four days after the receipt of notice of such payment, or when such payment is first signified in a defence may before reply, accept in satisfaction of the claim or cause of action in respect of which such payment has been made, the sum so paid in, in which case he shall give notice to the defendant in the Form No. 4 in Appendix B. McCall, Q.C. and C. A. Russell, Q.C. for the plaintiff. By paying money into court before defence the defendants admitted liability, and could not afterwards at the trial deny liability. If a defendant wishes to pay money into court with a denial of liability, so that the payment may not operate as an admission, he must do so with a defence which denies liability, under the latter part of rule 1. The defendant gave to the platiff the notice provided for by rule 4. It is clear, therefore, that the payment into court in this case was a payment under the first part of rule 1, and was an admission of liability. The pleas in the defence denying liability ought to have been treated as mere surplusage, and to have been disregarded at the trial, or, at any rate, the fact of payment into court before defence ought to have been treated as conclusive evidence of liability in answer to those pleas. When the defendants applied at chambers for an order that the question of liability should be tried first, the master refused to make an order upon the ground that there was no question of liability to be tried; and the defendants did not appeal. After that, the plaintiffs were entitled to treat the pleas denying liability as of no importance. Robson, Q.C. and Kilburn for the defendants.— The plaintiff not having taken the money out of court, and having joined issue on the defence denying liability, the case comes within rule 6. The plaintiff refused to accept the admission of liability. In Re The Earl of Stamford and Warrington (52 L. T. Rep. 511) the notice of payment into court was not in proper form. [Lord ESHER, M.R.-Pearson, J. held that as a matter of fact the money was paid into court at the same time as the defence was delivered.] They also cited Hennell v. Davies, 68 L. T. Rep. 220; (1893) 1 Q.B. 367. [CHAN. DIV. McCall, Q.C. replied. It is plain that up to the time of the delivery of the defence there was an admission of liability. Nothing has destroyed that admission. The joinder of issue was wholly unnecessary, and ought not to be treated as affecting the admission. Lord ESHER, M.R.-We think that we must say that in this case the plea denying liability ought never to have been on the record, and that we must treat it and the joinder of issue as struck out. Then the only question to be decided is the amount of damages, and for that purpose there must be a new trial. Appeal allowed. Solicitors for the plaintiff, Ray and Miers. Solicitors for the defendants, Downing, Holman, and Co. HIGH COURT OF JUSTICE. CHANCERY DIVISION. Jan. 19, 20, 21, 22, 23, 26, 27, and Feb. 18. DALTON v. FITZGERALD. (a) Settlement-Settlement of T. estate-Will reciting erroneously that said settlement included B. estate, and directing said estates to be settled— Settlement accordingly-Successive entries by tenants for life on said estates by virtue of such settlement-Estoppel. J. D. was at the time of making his will and at his death entitled to considerable real estates including the T. and B. estates. He had several daughters and one son, who married in 1809, when the T. estate was settled upon certain uses, nearly all of which failed by the death of the son in J. D.'s lifetime. By his will, made_in_ 1828 (when two daughters only survived), J. D. recited the settlement of 1809, and stated erroneously that that settlement included the B. estate, and expressed his desire that the said estates should be settled upon the uses thereinafter declared, and the said estates passed to the trustees of the will. The testator died in 1837, and his two daughters became his co-heiresses at law. By an indenture of 1842 a settlement was made for the purpose of effectuating the said will. It included both the T. and B. estates, which were settled on the daughters and their issue, remainder to Sir J. F. for life, remainder to his sons in strict settlement, remainder to G. F. for life, remainder to his sons in strict settlement, remainders over. The daughters executed it, but Sir J. F. and G. F. did not. One daughter died in 1843, and the sister became sole heiress. She died in 1861 a spinster. Sir J. F. thereupon entered into possession of the said estates, and died without issue in 1867, when Sir G. F. entered into possession of the same. He died without issue in 1894, and the property passed to the plaintiff. Sir G. F. had procured himself to be registered in the land registry as owner in fee of the B. estate, and by codicil devised this estate to the defendants. In an action claiming a declaration that the B. estate was effectually comprised in the settlement of 1842 and for rectification of the register, it (a) Reported by A. W. CHASTER, Esq., Barrister-at-Law. was contended by the plaintiff that the defendants were estopped from denying the validity of such settlement. Held, that the doctrine of estoppel was applicable to the case, and that Sir G. F., and all persons claiming under him were precluded from denying that the settlement was effectual, and that accordingly the plaintiff was entitled to succeed. Board v. Board (29 L. T. Rep. 459) applied. THIS was an action brought to establish the title of the plaintiff, Mr. W. H. Dalton, to certain lands situate in the manor of Bulk, in the county of Lancaster, which formed part of the estate of the late J. Dalton, who died in 1837. J. Dalton was at the time of making his will and at his death entitled to real estate of considerable value, and in particular to the manor of Thurnham and Glasson, the mansion-house called Thurnham Hall, and divers messuages, lands, and hereditaments, situate in Thurnham, Glasson, Cockerham, Pilling, and Edel, in the county of Lancaster, certain lands called Abbey lands, and a free fishery, and tithes which togther was known as the Thurnham Estate, and to the manor of Bulk, in the same county, and divers, messuages, lands, and hereditaments situate in the township, or parish, or district of Bulk, in the same county, such premises including the manor of Bulk, and known as the Bulk estate. Both these estates had been a very long time in the plaintiff's family, and had been, in fact, acquired by an ancestor in the reign of Philip and Mary. J. Dalton had several daughters and one son, who married in 1809, on which occasion a settlement was made by deeds of lease and release, dated the 30th and 31st Jan. 1809. By these deeds the Thurnham estate was limited to uses in favour of J. Dalton, the father for life, to the son for life, with remainder to the first and other sons of his body lawfully begotten in tail male, with remainders over and ultimately to the right heirs of J. Dalton, the father, subject to a jointure in favour of the widow of J. Dalton, the son, and powers to charge the estate for the benefit of the younger children. J. Dalton, the son, died in 1819 without leaving children, and thereby the limitations in the settlement of 1809 subsequent to the life of J. Dalton, the father, failed with the exception of the ultimate trust, and the only effect thereof was to provide a jointure for the widow of the son. Subsequently to that J. Dalton, the father, made a will in 1828. At that time the only children of the testator living were two daughters viz., Mrs. Lucy Bushell and Miss Elizabeth Dalton. So far as it is material to be stated, the will recited the settlement of 1809, and then recited, "And whereas by the said settlement, &c., my family estates, consisting of the manors of Thurnham and Glasson, and of Bulk, and of divers capital and other messuages, tenements, lands, tithes, fisheries, and hereditaments, were settled" as herein before named. That recital was erroneous so far as it related to the manor of Bulk. And then, after reciting the death of the son, the will continued: And I am desirous that the said estates, which have descended to me from my ancestors, shall be preserved as one entire patrimony, and should be enjoyed by my two daughters equally between them for life, and by the survivor of them for her life, and their respective issue male as hereinafter mentioned, and that in default of such issue male the same estates shall be kept undivided [CHAN. DIV. and be enjoyed in the order of succession hereinafter pointed out, so that they may always form the estate of one person, bearing my name and arms, in order to continue the name and memory of my family for many years if it shall so please God; for these reasons I give and devise all those the manors or lordships of Thurnham and Glasson, and Bulk, and all other the messuages, tenements, lands, tithes, fisheries, hereditaments, and premises whatsoever, situate in Thurnham, Glasson, Bulk, Cockerham, Pilling, and Edel, in the county of Lancashire, or elsewhere soever, and which are comprised in the settlement so made previous to the marriage of my said late son, or mentioned or intended so to be, with the appartenances unto and to the use of T. J. Trafford and J. Clifton their heirs and assigns, subject to the portions, charges, and incumbrances mentioned in the said settlement, so far as the same affect the said hereditaments and premises, or any part thereof respectively, upon trust nevertheless that they the said T. J. Trafford and J. Clifton, or the survivor of them, or the heirs or assigns of such survivor, shall and do by good effectual settlements, conveyances, and assurances in the law, settle, convey, and assure the same manors, messuages, lands, tenements, hereditaments, and premises to the uses and in manner hereinafter mentioned. On this his Lordship said that there could be no question that the legal estate was given to the trustees so far as it passed by the will, and that the testator had not been his own conveyancer, because he included in the will directions to settle, and specified the legal uses thus : "To the use of his said two daughters equally during their joint lives, and to the use of the survivor of them during her life" with remainders in strict settlement in the event of issue, and remainders over in the event of their dying without issue. Then followed various other legal limitations, and the ultimate remainder to the right heirs of himself for ever. The will continued: case I direct that in the said settlement all proper clauses be inserted for effectuating my intention before expressed as counsel shall advise, and as are usual in settlements of the like nature, although not specifically mentioned by me particularly. I direct that proper precaution be taken for preserving all the contingent estates to be limited in such settlement by the interposition of proper estates to trustees for that purpose, in all cases where it shall be necessary or expedient so to do, in order to effectuate my intentions. And in case any person or persons to whom an estate or estates in tail male, is or are hereinafter directed to be limited, now is or are born, or shall be born, during my life, then instead of such estate in tail male there shall be substituted in such an estate to such person for life only, with remainder to trustees during the life of such person, to preserve contingent remainders, with remainder to the first, second, third, fourth, fifth, and all and every other son and sons of the body of such person, lawfully to be begotten severally and successively in tail male, according to the order of birth, the elder of such sons and the heirs male of his and their body and bodies being always preferred, and to take before the younger of such sons and the heirs male of his and their body and bodies issuing, it being my desire and intention that the said estates should be put into strict settlement, so that no person born during my lifetime shall take any estate tail therein, so as to have power to bar or disappoint those who come after him in the succession. My will further is that all persons who shall be tenants for life under such settlement shall be so without impeachment of waste. That such of them shall have such powers to grant husbandry leases at such rent, and not exceeding twenty-one years, as are usual in settlements. That such settlement shall also contain the usual powers of selling or exchanging all or any part of the premises for a full price or equivalent, such sale or exchange to be with the consent of the person in possession, and of the trustees, and the moneys thence arising to be paid to the trustees, to be laid out in the purchase of other estates, which as well as those received in exchange must be settled to the same uses, proper powers to trustees to give receipts and discharges for moneys received under the trusts of the settlement, usual powers for each male tenant for life when in possession, to limit and secure a jointure to his widow, and so forth. The testator made a number of codicils to that will, which in some respects altered the nature of the limitations to be introduced into the settlement. He used language in them such as in referring to the devised estates "my real estates," "my family estates," &c., all of which were referred to by the parties to the litigation as throwing some light on the interpretation of the language of the will as to what he meant to devise. The testator died in 1837, and at his death his two daughters became his coheiresses-at-law. By an indenture, dated the 30th July 1842, a settlement was made for the purpose of effectuating the will of J. Dalton, the father. The settlement was very lengthy, and included the Thurnham estate and the manor of Bulk, which were expressly referred to in the will, and all and singular, the messuages, mills,_lands, tenements, and hereditaments, late of J. Dalton, the elder, situate, lying and being in Bulk. And to that deed there was a schedule, containing a specific description of the property dealt with by the deed. The limitations so far as material were in favour of the daughters and their issue, with remainder to Sir J. Fitzgerald for his life, with remainder to his first and other sons in tail male, with remainder to G. Fitzgerald for his life, with remainder to his first and other sons in tail male, with divers remainders over. As to the daughters, Mrs. Bushell and Miss Dalton, they were made parties to the deed, and executed it; but as regards Mrs. Bushell not in a way sufficient to bind a married woman conveying real estate. Neither she nor Miss Dalton purported to grant the property comprised in the deed. The other tenants for life were named as parties, but neither Sir J. Fitzgerald nor G. Fitzgerald ever executed it. The subsequent history of the title was this: Mrs. Bushell died in 1843 and her sister became sole heiress. She died in 1861 without ever having been married, and thereupon Sir J. Fitzgerald entered into possession of the estates described in the schedule of the deed of 1842. He died without issue in 1867, and therepon Sir G. Fitzgerald, party to the deed, went into possession and receipt of the rents and profits of the same. He died in 1894 without leaving any issue, and thereupon, under the limitations of the settlement, of 1842, the plaintiff became entitled. It was discovered immediately after the death of Sir G. Fitzgerald that he had procured himself to be registered in the Land Registry as owner of the fee simple of the lands in the manor of Bulk, and by codicil he devised them to the defendants. Thereupon the defendants entered into possession and this action was brought, claiming (inter alia) a declaration that the lands in question were effectually comprised in the settlement of 1842; that the title of the plaintiff as tenant for life of the lands might be established, delivery of pos [CHAN. DIV. session to the plaintiff, and rectification of the register at the Land Registry. The defendants did not dispute that the settlement of 1842 was a proper and effectual settlement of the Thurnham estate and the manor of Bulk, so far as the lands were comprised in the settlement of 1809; but they asserted that J. Dalton, the father, died intestate as to the lands in the manor of Bulk. That the manor was only a reputed manor, and that its devise did not pass the lands in question, the language of the will and codicils being inadequate for that purpose, and at all events the deed of 1842 was ineffectual for the purpose, and that Sir G. Fitzgerald, by possession for twenty years acquired a title in fee simple. The plaintiff, on the other hand, asserted that it was an actual and not a reputed manor; that the devise was effectual to pass the lands in question, and that if this was not so then on the true construction of the will that it was comprised in the devise to the trustees; and that, if that was held not to be so, then that Sir G. Fitzgerald and the defendants were estopped from disputing the validity of the settlement of 1842. Hastings, Q.C. and J. T. Prior for the plaintiff. -On the main question we submit that the plaintiff is clearly entitled to the declaration asked for: Travers v. Blundell, 36 L. T. Rep. 341; 6 Ch. Div. Delacherois v. Delacherois, 10 L. T. Rep. 884; 11 Gibson v. Gibson, 1 Drew. 42. As to the question of estoppel there is a case exactly in point, namely: Board v. Board, 29 L. T. Rep. 459; L. Rep. 9 Q. B. 448. A similar decision is that of Hawksbee v. Hawksbee, 11 Hare, 230. [STIRLING, J. referred to Darby and Bosanquet on the Statute of Limitations. 2nd edit., p. 499.] Re Stringer's Estates (37 L. T. Rep. 233; 6 Ch. Div. 1) is distinguishable. The common law doctrine of estoppel and the equitable doctrine of election work out the same, and Sir G. Fitzgerald elected to take under the instrument. [STIRLING, J. referred to Kernaghan v. M‘Nulty, 12 Ir. Ch. 98).] Elton, Q.C., Buckley, Q.C., and T. H. Carson for the defendants.-Re Stringer (ubi sup.) is, we submit, in point, and there are other stronger cases which show that we are not estopped by the deed of 1842: Griffith-Boscawen v. Scott, 56 L. T. Rep. 386; 26 Durnford v. Lane, 1 Bro. C. C. 106; Paine v. Jones, 30 L. T. Rep. 779; 18 Eq. 320; Scott v. Nixon, 3 Dr. & W. 388. They also referred to Co. Litt. sect. 140; The judgment of Thesiger, L.J., in Attorney-General Shelford's Real Property (by Carson), p. 298; Ex parte Morgan, 34 L. T. Rep. 329; 2 Ch. Dir. 89. The cases divide themselves into two classes, namely, (1) where a testator is not the owner of |