the parties as to the level at which the railway should be made other than that which is contained in a recital of the second agreement. It is insisted that there is an agreement to that effect by the company; but, in truth, this is at most only the recital of an agreement, which nowhere appears to have been entered into. The indenture contains no covenant or agreement by the company to make the line according to the gradient mentioned in the recital. The covenants relate to the bridge and the road, and are in these words: “The bridge is to be constructed so as to interfere with and obstruct the present lodge-road as little as possible consistent with the deviation thereof hereby authorized, and to make the continuation thereof over the said railway as convenient as possible, having regard to the nature of the mode of carrying the same over by a bridge," I am bound to conclude, and, indeed, the evidence also leads me to the same result, that the level selected for the railway is that best suited for the convenience and safety of the public, and, if so, consistently with that fact the company have complied with the words I have just read, although they have not made the bridge according to the line specified in the plan attached to the agreement. I cannot lower the railway to give the plaintiff a less curved approach to his house, neither can I lower the railway in order to give him a level crossing at O. The evidence upon the other points in dispute is not very distinct. Not only is it clear, but it is admitted, that these originally formed no part of the real subjects of complaint between the parties, and that they would probably have been easily arranged without litigation if the matter respecting the lodge-road could have been settled; in confirmation of which it is also to be observed, that none of them were made in the pleadings until the final re-amendment of the bill. The failure of the company in these respects would probably have been easily settled, or if not, would have been measured by damages to be recovered by the plaintiff in an action, had this suit not been instituted, and had the company persisted in refusing to do what was right in this respect. It is also to be observed, that by a clause in the original agreement, it is provided, "That in case any dispute shall arise respecting the formation of the arches, roads, crossings, approaches, culverts, gates or other accommodation works hereby agreed to be made, or any of them, or in anywise relating thereto, such dispute shall be settled and provided for as directed by the Railways Clauses Consolidation Act, 1845." It is said that this clause is ineffectual because the magistrate, who is appointed by the Railways Clauses Consolidation Act, would have no authority under the act, except in the case where there was no contract, and that this agreement could not give him authority. But assuming this to be correct, the clause points out a ready mode by which the authority might be given as between the parties themselves, and the matter might be settled by reference to a magistrate if any one could be found who would consent to act as umpire to settle the difference. I have hitherto spoken of "the plaintiff," in the singular, for this reason: that I have, in all the observations I have made, treated the suit as that of Mr. Raphael alone, who was the party to the contract. It is true he has since sold and conveyed the estate to the co-plaintiffs, Mr. Barnett and Mr. Birch; but I do not think that this transfer of interest affects the question in any respect, either in favour of the plaintiffs or of the defendants. In my opinion, it leaves the matter exactly as if no such transfer had been made; and I only refer to it to shew that it has not been overlooked by me. In this state of things, I have considered at the outset, and I still think, after a thorough investigation of the matters in difference, that it would have been prudent if the plaintiffs had abated somewhat of their claims against the defendants in consequence of the suggestion I made. I regret to have found how very useless it was my making the suggestion. Indeed, the letter in which they propose to compromise the matter is one in which they give only this alternative to the defendants, namely, either a full decree for all they ask, with costs, or for payment down of 6,4564 2s. 6d., being, to use their words, "the amount of the engineer's estimate of the cost of the works required to execute the agreement." This, of course, shewed plainly that nothing but the decision of this Court could settle the dispute; and accordingly I have for this purpose given the subject much consideration. In so doing, I have more than once, in the long time I have taken to consider this case, gone through the papers. I have already stated the reasons which forbid me to compel the specific performance of the agreement as to the lodge-road by altering the level of the railway, and also why I cannot substitute a new bridge and road, and entangle myself in negotiations for the price of land, according to the suggestion I made at the close of the argument, and which could only be successfully worked, if it were bona fide adopted by both sides in a spirit of conciliation, of which, as I have said, I see little prospect. At the same time, the company unquestionably have not performed their contract, and ought to make good to the plaintiffs all that they have lost, and they ought to compensate them for all the injury sustained by reason of such nonperformance, whatever that may be. But, in my opinion, this is a case in which the plaintiffs can only have damages, and the measure of these damages is the injury sustained by them. This relief is not asked for by the bill. There is little direct evidence upon the subject; and I should be making a decree, resisted both by the plaintiffs and by the defendants, if I were to direct an inquiry in chambers as to the amount of damages sustained by the plaintiffs by reason of the breach of covenant by the defendants; in addition to which, I am satisfied that this would be best ascertained by a jury, who might, if necessary, have a view of the spot. If I directed an inquiry in chambers to ascertain the amount of damage, I could only do so at the request of the plaintiffs. Unless such an inquiry were asked by the plaintiffs, the defendants have no right to ask for a conveyance by the decree of the Court, nor could I decree it while the contract remains unperformed, and such damage as the plaintiffs have sustained is not compensated. In this state of things, I am of opinion that the proper decree for me to make is, to dismiss the bill without costs, but without prejudice to the plaintiffs bringing such action or actions for breach of the covenants contained in the contract as they may be advised. I have been informed that occasionally the Courts of common law have held that since the act they have considered that an action for damages cannot be sustained when it appears that the matter has been before a Court of equity, which, having jurisdiction to award damages, has not done so; but I presume that this rule would not obtain, when the Judge in the Court of Chancery declares that he considers that that there has been a breach of the covenants contained in the contract, and that he abstains from awarding damages solely because he considers that the proper amount to be awarded would be best ascertained in an action at law, and that accordingly he makes the decree, without prejudice to such action being brought, instead of directing an inquiry on the subject, or directing an issue to ascertain what damages had been sustained by the plaintiffs. If, however, the plaintiffs desire it and ask for it, I will direct an inquiry as to what damage has been sustained by reason of the breach, by the defendants, of the covenants contained in the indenture of the 15th of July, 1863, and at the same time direct that the conveyance to be executed between the parties shall be settled in chambers, in case the parties differ. In neither case shall I give any costs up to and including the hearing; but I do not mean that the request of the plaintiffs to take a decree for inquiry as to damages shall in any respect prejudice their right to appeal from the decree I now pronounce; for my decision is unquestionably an adverse decree to them, as they ask for specific performance alone, which I refuse to decree; but I mean that if an appeal from my decision should be affirmed, it should be stated that I thought it right that the plaintiffs should have such an inquiry directed, if they thought fit to ask for it, and it might then be obtained, if the Lords Justices should think fit to award it. Solicitors Messrs. Birch & Ingram, for plaintiffs; Messrs. Hargrove, Fowler & Blunt, for defendants. This was a motion, on behalf of the plaintiff in the cause, to vacate the enrolment of the decree in the cause, on the ground of improper conduct on the part of the defendant's solicitors in abstracting the plaintiff's copy of the decree, whereby he had been prevented from presenting a petition of appeal in due time. Judgment in the cause was pronounced, by the Master of the Rolls, on the 16th of January, 1866, dismissing the plaintiff's bill with costs. The plaintiff, having given notice to the Registrar that he intended to appeal, had the settling and passing of the decree; and when, on the 6th of March, the minutes were settled, he paid the stamp. The decree was passed on the 9th, and was entered on the 10th, the original order having on that day been left with the Registrar by the clerk to the defendant's solicitors, to whom by arrangement with the plaintiff's solicitor it had been intrusted. On the 13th the same clerk to the defendant's solicitors applied to the entering clerk for the decree, and took it away from the office. The plaintiff's solicitor, having on the 14th and 16th inquired in vain for it at the office, was informed at last on the 17th, by the defendant's solicitors, that it had been enrolled by them on the 16th. It was subsequently returned to the plaintiff. Mr. Jessel and Mr. Everitt, for the plaintiff, contended that the decree belonged to the plaintiff who had paid for it, and that the eventual return of it to him was an admission of this. Whenever there were doubtful circumstances attending an enrolment, it would be vacated- Hill v. the South Staffordshire Railway Mr. Beavan (Mr. Selwyn with him), for the defendant.-The simple question was, whether or not the plaintiff, through his solicitor, had been guilty of negligence in not entering a caveat during the eight weeks' interval between the decree and the enrolment; and the defendant was entitled to say that the plaintiff had been. The plaintiff had no peculiar right to the decree. The decree was in favour of the defendant. The plaintiff had indeed the charge of drawing it up, and might claim the eventual custody of it; but whenever it was wanted for any purpose, the defendant was entitled to have it produced; and it could surely make no practical difference whether, for the purpose of enrolment, he borrowed the plaintiff's copy, or were put to the needless expense of obtaining an office copy. At any rate, the burden was on the applicant to make out mala fides or some very strong case of surprise, before the Court would deprive a party of the advantage enrolment had given him of being subjected to one appeal only instead of two Williams v. Page, 1 De Gex & J. 561; s. c. 26 Law J. Rep. (N.S.) Chanc. 813. Wildman v. Lade, 4 De Gex & J. 401. Their LORDSHIPS were of opinion that, without the imputation of any wrong intention to the defendant's solicitors, there had been an irregularity by which the defendant could not be permitted to profit. The entering clerk ought to have delivered the decree to the person from whom he received it, that is, in the present case, to the plaintiff's solicitor, on whose behalf the clerk to the defendant's solicitors must be taken to have been acting. On the contrary, the entering clerk had delivered it without authority to the defendant's solicitors. Such a delivery had delayed the plaintiff's proceedings, and was sufficient reason for vacating the enrolment; but there would be no costs. Solicitors-Mr. T. Martin, agent for Mr. J. W. Friend, Exeter, for plaintiff; Messrs. Terrell & Chamberlain, agents for Mr. J. H. Terrell, Exeter, for defendant. -- Will Construction Remoteness Bequest of Chattels upon Trusts corresponding with Uses of Realty-Chattels "not to vest absolutely in Tenant in Tail" until of full Age-Effect of Words "as near as the rules of Law and Equity will permit." B. G. devised freeholds, upon trust for the use of E. G, his nephew, for life, with remainders to the use of his first and other sons in tail male, with successive remainders over for life, and remainders to the first and other sons of the successive tenants for life in tail male; and he bequeathed his residuary personal estate, upon such trusts, &c. as were thereby declared concerning the devised freehold hereditaments, "or as near thereto as the rules of law and equity would permit; provided, nevertheless, that such residuary personal estate should not vest absolutely in any tenant in tail, unless such person should attain the age of twenty-one years" :-Held, affirming the decision of Lord Chancellor Westbury, (but Lord St. Leonards dissenting), that the proviso merely narrowed the class who would have taken under the previous words of gift, and did not extend such class to tenants in tail by descent; and therefore the personalty vested only in tenants in tail by purchase, and the gift was not void for remoteness. Held, also, that the words "as near as the rules of law and equity will permit," would not by their own force have controlled the construction. Bennett Gosling, of Fleet Street, banker, by his will, devised freehold hereditaments in trust for the use of Ellis Gosling, the second son of the testator's brother, Robert Gosling, for life, provided that he should. accept the position of partner in the testator's bank; with remainder to the use of his first and other sons successively in tail male, with successive limitations over in remainder for life; the successive tenants for life to accept the position of partner in the same bank; with remainder to the first and other sons of such successive tenants for life in tail male; and he bequeathed his residuary personal estate upon such trusts, &c. NEW SERIES, 35.-CHANO. as were thereby declared concerning the devised freeholds, "or as near thereto as the rules of law and equity will permit: provided, nevertheless, that the personal estate should not vest absolutely in any tenant in tail, unless such person should attain twenty-one years." The testator died in 1855. Ellis Gosling accepted the position of partner in the bank, and enjoyed the freehold hereditaments as tenant for life. He died in 1861, leaving Ellis Duncombe Gosling, an infant, his only son. In consequence of claims made upon the testator's residuary personal estate by the testator's next-of-kin, a bill was filed, on behalf of the infant, Ellis Duncombe Gosling, by his next friend, to establish the will. By this bill the infant claimed a declaration by the Court that he was entitled to an estate in tail male in the real estate of the testator devised by his will, and to an absolute interest in the residuary personal estate, subject only to be divested in the event of his dying under twenty-one. The next-of-kin of the testator contended that, subject to the bequest to Ellis Gosling for life, the testator's residuary personal estate was not effectually disposed of by the will, the bequest being void for remoteness; that, therefore, as to such residuary personal estate, there was an intestacy, and on the death of Ellis Gosling the same devolved on the testator's next-of-kin. The Master of the Rolls had held, that the proviso restricting the vesting of the residuary personal estate in any tenant in tail was an integral and essential part of the trusts on which the bequest was made, and the Court could not reject the portion it considered void. On appeal, the Lord Chancellor Westbury held (1) the bequest to be valid, mainly on the grounds that forasmuch as with regard to personalty there can be no tenant in tail by descent (for the words which create an estate tail in realty confer absolute possession in personalty), so under this bequest the personalty must vest in a tenant in tail of the realty by purchase; that the only effect of the proviso would be (1) Gosling v. Gosling, 32 Law J. Rep. (N.s.) Chanc. 233. 4 Q to substitute one tenant in tail by purchase for a prior tenant in tail by purchase in the event of such prior tenant dying under twenty-one, and that the proviso would not prevent the property from vesting, but would only render it liable to be divested. The proviso, if confined to tenants in tail of the real estate by purchase, was unobjectionable. From the decision of the Lord Chancellor Westbury the next-of-kin of the testator now appealed. It was admitted in the arguments, and it was held by their Lordships, that the words used did not constitute an executory bequest, as the bequest was to certain persons to hold in trust; not to certain persons to settle or convey upon trusts as near to the uses declared of the realty as the rules of law and equity would permit. The proviso explains the testator's intention, viz., that the personalty should be held, together with the realty, even by a tenant in tail of the latter by descent. This implies a gift to a class some of whom might be without the limits, and the bequest is void Lord Dungannon v. Smith, 12 Cl. & F. Leake v. Robinson, 2 Mer. 363. the House of Lords, pp. 342, 346, Taking the proviso in connexion with the bequest, and having regard simply to the plain construction of the language of the will, it is clear that the testator intended to include tenants in tail by descent. In order to ascertain the objects of a testator's bounty, you must construe his will without reference to the rules of law which prohibit remote limitations; and having thus arrived at the true construction, you are then to apply the rules of law as to perpetuities— Cattlin v. Brown, 11 Hare, 372. Sir Roundell Palmer and Mr. Wickens, (with them Mr. Selwyn and Mr. Rasch) for the respondents.-The proviso is not to be read as part of the sentence containing the bequest. It is subsequent to the bequest. The word "absolutely" means indefeasibly, and its use shews that the testator did not intend that the estate should not, by the preceding words of the bequest, be vested; it only meant that it should be liable to be divested, as in Taylor v. Frobisher, 5 De Gex & Sm. 191; s. c. 21 Law J. Rep. (N.S.) Chanc. 605. 66 Either the original words of the bequest do not include any person who does not take by purchase, or the words as near as the rules of law permit" exclude them. If any such person is to take an interest, it must be by implication from the words which follow; and if there were any such implication, it must be limited by the rules of law, and therefore cannot be carried to the degree of remoteness— Ware v. Polhill, 11 Ves. 257; and at 281. There is nothing in the will to make the bequest void unless it is the proviso; but the proviso only applied to persons who took the personalty, and only a tenant in tail by purchase could take the personalty The Countess of Lincoln v. the Duke of Newcastle, 3 Ves. 398: and on appeal, 12 Ibid. 218. The case was also cited of Egerton v. Brownlow, 4 H.L. Cas. 1; s. c. 23 Law J. Rep. (N.s.) Chanc. 348. Mr. Hall replied. The LORD CHANCELLOR (LORD CHELMSFORD).-The question in this case arises upon a bequest of personalty in the will of Bennett Gosling after devises of his real estates to his nephews successively, and their first and other sons in tail. The clause upon which the question arises is in these terms: "I give and bequeath unto my said trustees, or such of |