the side on which the three bars were was nearest to the wall. Complaints were on several occasions made to the defendants about the danger of having the lid placed against the wall in this manner. On the 12th of June, the plaintiffs (two children about seven years of age) with others were playing about the lid. They had been warned and desired to go away, but Hughes climbed up on to the lid and then jumped off, causing it to fall on himself and Abbott, from which they both received very serious injuries. The street in which this occurred was a public highway, but there was no foot pavement on the side where the cellar and lid were. The learned assessor nonsuited the plaintiffs, with leave reserved to move to set the nonsuit aside, and have a new trial, if the Court should be of opinion that there was evidence of negligence by the defendants. A rule nisi was accordingly obtained. 24 Nov. 1863. L. Temple, and Littler, now showed cause against the rule. The learned assessor's decision is correct. There was no evidence of negligence on the part of the defendants, and even if there were, the plaintiffs having themselves contributed to the accident by causing the lid to fall down, cannot recover, according to several decisions. [POLLOCK, C. B., referred to Lynch v. Nurdin, 1 Q. B. 29]. Leggo v. Newbold, 9 Exch. 302; and in Barnes v. Ward, 9 C. B. 392, as limited by Hardcastle v. The South Yorkshire Railway Company, and River Dun Company, 4 H. & N. 67. McCulloch, and R. G. Williams, in support of the rule. Lynch v. Nurdin is precisely similar to the present case, and should govern it. There are no grounds for the statement that it has been doubted. That decision applies to the case of the plaintiff Hughes; as to Abbott's right to recover, there can be no doubt. The defendants in the present case were guilty of negligence and carelessness in leaving the lid in such a position in a frequented public street, and are liable for the consequences of that negligence, Reg. v. Jones, 3 Camp. 229; 7 DEC. 1863. there was a public street at Liverpool, over the whole of which, from fence to fence, the public had a right of way, subject to the existence of certain cellars. There was a footpath on one side, and on the other side no footpath; but the cellars alluded to made that side less commodious as a way than it otherwise would be; still the public had a right to pass there. The defendant was the occupier of a house and cellar on the side where there was no footpath. He took the flap or cover of his cellar off, and placed it against the wall on the same side, nearly upright, so that it could be easily pulled over. It may be admitted that if a person passing along the street in the ordinary use of a right of way without any carelessness on his part, had, by his dress blowing against it, pulled it over and sustained hurt thereby, he might have maintained an action against the defendant for a negligence or wrong in placing the flap so that, without any negligence on the part of the plaintiff, it was likely to do, and had actually done, damage to him. In the first of these two cases, in which Hughes was plaintiff, the flap was pulled over by the plaintiff, a child of tender age, climbing up it and jumping from it, and it fell upon him, hurting him very severely. Had he been an adult it is clear he could have maintained no action for it; he would voluntarily have meddled for no lawful purpose with that which, if left alone, would not have hurt him, and he would, therefore, have contributed by his own negligence to his own damage. We think the fact of the plaintiff being of tender years in this case makes no difference. His touching the flap was for no lawful purpose; and if he could maintain the action as it is, he could equally maintain an action if the lid had been placed inside the defendant's premises; but within sight and reach of the child. As far as the child's act is concerned, he had no more right to touch the flap for the purpose for which he did touch it, than he would have had it been inside the plaintiff's premises. Cases were referred to, supposed to be in favour of the plaintiff, but we think none are decisive of the present case, and no case establishes a principle opposed to our view-which is, that the nonsuit was right, and ought not to be set aside. As to the other case, in which Abbott was plaintiff, the case is different. He was playing with the rest of the boys, but the exact circumstances do not appear. If he was playing with Hughes, so as to be a joint actor with him, we think he cannot maintain the action; but if not, we think he can, as the injuries would then be the result of the joint negligence of Cur. adv. vult. Hughes and of the defendant. How this is does not appear, and we think as to his case there ought to be a new trial, for the purpose of ascertaining the facts, which are left in doubt. POLLOCK, C.B., now delivered the judgment of the Rule discharged in Hughes's case. EQUITY. Trustee Act, 1850, section 32-Lunatic TrusteeDevise by Implication. A testator appointed A B to be trustee of his will; and after devising all his real estate to his wife for life, he directed his trustee, on the death of his wife, to sell his real estate, with power to sell the same by public auction or private contract, &c., and with power to execute all such instruments and assurances as might be necessary to carry out the sale: Held, that, whether or not A B took any estate in the realty by implication, he was a trustee within the Trustee Act, 1850; and that, on his becoming lunatic, the Court had power, under the 32nd section, to appoint a new trustee in his place. This was a petition in lunacy, and in the matter of the Trustee Act, 1850, for the appointment of a new trustee. The petition was heard before the Lords Justices; but, in consequence of conflicting decisions in previous cases, and of a doubt whether the case before the Court was within the statute, their Lordships, without any expression of opinion on their part, requested that the matter might be brought before the Lord Chancellor. The testator, by his will, dated in 1851, appointed his wife and J. S. Boyce to be executors, and J. S. Boyce to be trustee of his will. He devised all his real estate to his wife and her assigns during her life, if she should so long continue his widow, but in the event of her marrying again, he gave her a legal rent-charge, with power of distress and entry, and directed his trustee to invest the surplus of the rents and profits of his real estate. On the death of his wife, the testator directed his trustee to sell the real estate, with power to sell by public auction or private contract, &c., and with power to execute all such instruments and assurances as might be necessary to carry out the sale. The will contained a power to appoint a new trustee, but in the events which happened, it had become incapable of being exercised. The testator's wife survived him, did not marry again, and was now dead. The trustee, J. S. Boyce, had become lunatic. The questions were, whether Boyce took any estate under the will by implication; and if not, whether he, as the donee of a power of sale without any legal estate was a trustee within the meaning of the Trustee Acts. Cory, for the petitioner. 13 & 14 Vict. c. 60, s. 32; 15 & 16 Vict. c. 55, s. 9; Ex parte Countess of Mornington, 4 D. M. & G. 537. 25 JAN. 1864. THE LORD CHANCELLOR said that in his opinion the direction to Boyce to invest the surplus rents and to give him an estate sufficient in point of quality to profits, after payment of the rent-charge, was enough the widowhood he would take, therefore, a contingent enable him to carry the direction into effect. During estate pur autre vie. Boyce was directed to sell the real estate, with power to select the mode of sale, and to execute all such assurances as were requisite to give effect to the sale. This was equivalent to a trust to sell and convey; and his Lordship thought that, if the will had been expressed in those words, Boyce would have taken the remainder in fee in the real estate, expectant upon the life estate of the widow. On the death of the widow, But even if Boyce had a mere power of sale, he was, in the first place, appointed to the office of trustee of the will; secondly, he was peremptorily directed to sell on the death of the widow; and, thirdly, he was empowered to carry the sale into effect by the execution of all necessary assurances. The combination of these three particulars brought the case within the Trustee Act, and the Court had jurisdiction to appoint a new trustee in the place of Boyce. But, further, if he had been appointed a simple trustee, the case was within the statute, if the Court thought proper to exercise its discretionary power. The testator contemplated the event of a new trustee being required, and created a power to provide for that event, which, however, by reason of the lunacy, could not be exercised. It was, therefore, imprac ticable to appoint a new trustee without the assistance of the Court; and as the estate could not otherwise be sold, it was expedient that a new trustee should be appointed. The case was met and provided for by the 32nd section of the Act. His Lordship's power under the Trustee Act in cases of lunatic trustees (section 3) was limited to making a vesting order. He should decide the present case, not on the ground that Boyce took an estate by implication, but on the ground that the case was within the 32nd section of the Act. He would, therefore, appoint a new trustee; and the order of appointment should be drawn up both in Lunacy and in Chancery. Note.-See Re Dawson's Trusts, Re Broome, post, 397. Busk, this day, informed their Lordships that their suggestion had been adopted, and that proposed minutes had been approved of by counsel on behalf of the Bank of England. THEIR LORDSHIPS, thereupon, approved of such minutes. Where a trustee, from ill-health, was unequal to the exertion of signing the necessary papers for effecting a Minute. The approved minutes, as far as material, transfer into Court of a sum of stock, the Court appointed were as follows:-It appearing that William Broome new trustees of such sum of stock, they undertaking, and Dalton Dalton are jointly entitled to the within a given time, to transfer such sum of stock into 21,2441. 14s. 8d. Bank 37. per cent. Annuities standthe name, and with the privity, of the Accountant-ing in their names as survivors in a joint account of General of this Court, pursuant to the provisions of Bank of England, upon trust as in the petition menthe said John Grimshaw, deceased, in the books of the the Trustee Relief Act. This was a petition for the appointment of new trustees under the trusts of the will and codicils of one Thomas Dawson, in the room of John Grimshaw, William Broome, and Dalton Dalton. It appeared on the hearing that John Grimshaw was dead, William Broome was a person of infirm health, and Dalton Dalton was desirous of retiring from the trusts. The petition had been intituled both in Chancery and in Lunacy. Busk, for the petitioners, proposed that Robert Steele, Edward Browne, and Hugh Wild should be appointed trustees of two legacies of 10,000l. each in the petition mentioned, and of the sum of 11,0821. 9s. 3d. Bank 37. per cent. Annuities, part of a sum of 21,2447. 14s. 8d. like Annuities, also in the petition mentioned, in the place of John Grimshaw, William Broome, and Dalton Dalton. Kingdon, on behalf of certain parties interested in the 11,0827. 9s. 3d. Bank 31. per cent. Annuities, objected to the trustees named. They desired that instead of new trustees being appointed in respect to that sum, that that sum might be transferred into Court. This difficulty, however, had arisen, William Broome was a person of infirm health and unequal to the exertion of signing the necessary papers for the transfer. Neither the Trustee Act, 1850 (13 & 14 Vict. c. 60), nor the Trustee Extension Act (15 & 16 Vict. c. 55), met the difficulty. tioned, and the said William Broome and Dalton Dalton by their counsel appearing and desiring to be discharged from the said trusts, and it appearing to the satisfaction of the Court that it is expedient to appoint new trustees of the said, &c., in the place of the said John Grimshaw, William Broome, and Dalton Dalton, and that it is impracticable so to do without the assistance of this Court, and that the petitioner Thomas Dawson is beneficially interested in the said sum of 11,0821. 9s. 3d. Bank 37. per cent. Annuities, and Robert Steele, Edward Browne, and Hugh Wild, in the petition respectively named, by their counsel appearing, and undertaking within one month after the transfer into their names of the 21,244l. 14s. 8d. Bank 37. per cent. Annuities in the petition mentioned, and the payment thereout of the costs of the said petition, to transfer into the name and with the privity of the Accountant-General of the Court, pursuant to the provisions of the Trustee Relief Act, so much of the 11,0827. 9s. 3d. like Annuities, part thereof as shall remain after payment of the share hereinafter directed to be paid thereout of the said costs, and after deducting the costs of the transfer to be so made by them. Let Robert Steele, Edward Browne, and Hugh Wild, in the petition named, be appointed trustees of the and of the appropriated fund or sum of 11,0827. 9s. 3d. two legacies of 10,0007. each in the petition mentioned, Bank 31. per cent. Annuities also in the petition mentioned, in the place of the said John Grimshaw, William Broome, and Dalton Dalton. And let the right to call for a transfer of and to transfer the W. B. Coltman, for Dalton Dalton, the retiring 21,2447. 14s. 8d. Bank 37. per cent. Annuities standing trustee. Humphrey, for William Broome. THEIR LORSDHIPS suggested that the proposed trustees should be appointed trustees of the whole fund of 21,2447. 14s. 8d. Bank 31. per cent. Annuities, under the Trustee Act, 1850, on an undertaking by them to transfer into Court the sum of 11,0821. 9s. 3d. like Annuities within a month from the date of their appointment, and desired counsel to communicate with the solicitors of the Bank of England as to the form of order. in the names of the said William Broome and Dalton Dalton, as survivors on a joint account with the said John Grimshaw, in the books of the Bank of England, by the description of, &c., and to receive the dividends or income of the said Bank 37. per cent. Annuities re. spectively, vest in the said Robert Steele, Edward Browne, and Hugh Wild. And let the said Robert Steele, Edward Browne, and Hugh Wild transfer into their own names the said sum of 21,2447. 14s. 8d. Bank 31. per cent. Annuities. And let the sum of 10,1621. 5s. 5d. Bank 31. per cent. Annuities, part of the said sum of 21,2447. 14s. 8d. like Annuities, when transferred and vested as aforesaid, and the dividends and interest thereof, be held by the said Robert Steele, Edward Browne, and Hugh Wild, their heirs, executors, and administrators respectively, upon the trusts of the said will of the said testator Thomas Dawson subsisting or capable of taking effect, and relating to the two legacies of 10,0007. each, but subject to the payment of the proper portion of the costs and expenses hereinafter mentioned. And let the said 11,0827. 9s. 3d. Bank 31. per cent. Annuities, residue of the said 21,244. 14s. 8d. like Annuities, when so transferred as aforesaid, and the dividends thereof until the transfer hereinbefore referred to shall be made by them into the name and with the privity of the said Accountant-General pursuant to the undertaking hereinbefore mentioned, be held by the said Robert Steele, Edward Browne, and Hugh Wild, their executors and administrators, upon the trusts of the said will of the said testator Thomas Dawson subsisting or capable of taking effect, and relating to the fund thereby directed to be appropriated and set apart to produce, &c., but subject to the payment of the proper proportion of the costs and expenses hereinafter mentioned, and also to the payment of the costs of the transfer to be made by them under the said undertaking. Will, Construction-Gift over-Death in A share of residue was given by will to the testator's daughter C for life, and after her death to her children who should attain twenty-one, other shares being given upon corresponding trusts for other sons and daughters of the testator nominatim and their children, with a proviso that if any one or more of the sons or daughters should die without having any child who under the preceding trusts should become absolutely entitled to a share of the property, the original and surviving or accruing shares of each son or daughter whose issue should so fail, and his or her children, should vest in, accrue and belong to the survivors or others of the sons and daughters for their lives, and be transmitted to their children in the same manner as their original shares. One of the daughters named in the will having died without issue in the testator's lifetime, after the date of the will: Held (reversing the decision of STUART, V.-C.), that her share did not lapse, but passed to the other sons and daughters and their children under the gift over contained in the proviso. This was an appeal from so much of the decree of Stuart, V.-C. (reported ante 25), as declared that by reason of the death of Harriet Rackham, a daughter of the testator in the cause, without issue in his lifetime, one-sixth share of his residuary estate had lapsed. The question turned upon the construction of the will, which is sufficiently stated in the former report. Harriet Rackham died unmarried in the testator's lifetime some years after the will was made. The plaintiff was the eldest son of the testator, and the defendants who appealed were his other children and grandchildren. Malins, Q.C., and Archibald Smith, for the ap pellants, contended that the proviso amounted to a gift over of the share in question upon the event of the children to attain twenty-one, and that it took effect, although the event happened in the testator's lifetime. They cited, death of Harriet Rackham and the failure of her Darrel v. Molesworth, 2 Vern. 378; Re Sheppard's Trusts, 1 K. & J. 269; Bastin v. Watts, 3 Beav. 97; Smith v. Oliver, 11 Beav. 494. Greene, Q. C., and E. Ward, for the respondent, contended that the proviso amounted to a gift by way of substitution, which failed by reason of the failure of the objects of the original gift. In the cases cited on the other side the original gift was made to persons named, but here to a class, viz., the children of Harriet Rackham, which never existed. They cited, Rider v. Wager, 2 P. Wms. 331; Re Sheppard's Trusts (loc. cit.); The word "accrue" could not apply to shares never enjoyed by the original objects. Re Wood's Will, 31 Beav. 323. Archibald Smith, in reply. KNIGHT BRUCE, L.J., said that upon the letter and spirit of the will before him, independently of authority, and also upon the great preponderance of authority, he thought that the proviso ought to be construed as if the words had run thus-"if any one or more of my said sons and daughters shall, whether surviving or not surviving me, die," &c. Harriet Rackham was named in the will, and was living at the date of the will; she afterwards died in the testator's lifetime; but the plaintiff, as heir-at-law and one of the next of kin of | the testator, was entitled to nothing more than he would have been entitled to if she had died after the testator's death. On the question how the case would have stood if she had been dead at the date of the will, he would give no opinion. He thought the respondent ought to have no costs of the appeal. TURNER, L.J., agreed, and said that the authorities cited relating to substitutionary gifts had no bearing upon the present case, which appeared to him to be a gift to A. for life, with remainder to the children of A. who should attain twenty-one, and a gift over upon the death of A. and failure of such children. Practice-Injunction-Nuisance-21 & 22 Vict. c. 27-25 & 26 Vict. c. 42-Damages. It is not in every case of a nuisance being proved that this Court will interfere by injunction. Where, therefore, a plaintiff filed a bill to restrain a Railway Company from using a siding for the deposit and stacking of manure in such a manner as to cause a nuisance to himself and his family, but failed to prove the continuance of such nuisance, the Court refused at the hearing to interfere by injunction, and left the defendant to his remedy at law. Notwithstanding the 21 & 22 Vict. c. 27, and the 25 & 26 Vict. c. 42, it is not compulsory on the Court to give damages, but it may leave the party injured to his remedy at law. The plaintiff in this suit was the owner of a house at Stevenage, in the immediate neighbourhood of the Stevenage Station, on the Great Northern Railway. The defendants were the Great Northern Railway Company, against whom the plaintiff prayed by his bill, that they might be restrained from using the siding for the deposit and stacking of manure or other matter, whereby any noxious, offensive, or unhealthy fumes, vapours, or stenches, might be caused or emitted, or from permitting their trucks or waggons containing any such offensive matter to remain on the siding, or using the siding in such manner as to interfere with the quiet and wholesome enjoyment of his house by himself and his family. The siding was constructed in 1858. In December, 1861, the plaintiff, for the first time, complained of a nuisance, and on the 19th of January, 1863, he filed his bill. No interlocutory injunction was sought, in consequence of the nuisance being abated subsequent to the filing of the bill. Wood, V.-C., held, that the plaintiff having thus delayed to take any steps for more than four years, having brought no action to establish his legal right, having stood by and seen money laid out on the siding, and the traffic increase, without making any objection, could not now be permitted to ask the Court to do what in effect would be to stop the traffic of the company, and his Honour dismissed the bill with costs. The case in the Court below, is fully reported ante, 109. Willcock, Q.C., and Roxburgh for the appellant. 1st. Where the evidence clearly establishes a case of serious nuisance, for which there is no adequate remedy at law, equity interferes by injunction, although the plaintiff has not brought an action to establish his legal right, Soltau v. Deheld, 2 Sim. (N. s.) 152; Semple v. London and North-Western Railway In the present case, such a nuisance has been clearly proved, Walter v. Selfe, 4 De G. & Sm. 315; Imperial Gas Company v. Broadbent, 7 H. of L. Attorney-General v. Sheffield Gas Company, 3 De 2nd. The plaintiff's forbearance to sue until the nuisance became intolerable, is no bar to his right to relief in equity, even if it would have been a ground for refusing an interlocutory injunction, Gordon v. Cheltenham Railway Company, 5 Beav. 323. He cannot be bound by his acquiescence in the construction of the siding, which in itself was unobjectionable. 3rd. Even if the injunction should be refused, the plaintiff's right to damages ought to be tried in this Court, under Sir H. Cairns' Act, 21 & 22 Vict. c. 27, 25 & 26 Vict. c. 42; Wedmore v. The Mayor, &c., of Bristol, 1 N. R. 120; Johnson v. Wyatt, ante, 270. T. Stevens (Rolt, Q.C., with him), for the respondents, the company. 1st. The only nuisance complained of by the bill, is the nuisance alleged to be caused by the detention of the manure at the siding, and the offensive nature of the manure itself. On that ground alone relief is sought. But the evidence for the plaintiff has entirely failed to show that any such nuisance has been caused to the plaintiff by the defendants, as will warrant the interference of this Court. He referred to Bamford v. Turnley, 3 Q. B. 62; overruling Hole 2nd. The plaintiff has no locus standi here. This will appear if we consider what was the jurisdiction of |