Bolton's rules (Smith, Suppt. 93); and in the first of Primate Boyle's Orders (ibid. 96); vide also Rule 54, ibid. 101. Mr. Colles, contra.-The defendant has been perfectly regular. The practice in the office is not to consider it vacation while the court is sitting. In Jessop v. Jessop (3 L. Rec. O. S. 91) the Master of the Rolls decided, that while the court sat for dispatch of business after any term, the equitable term should be considered as continuing. of a recognizance the crown acknowledged by the C. Kelly, for the Attorney-General, consented accordingly. MASTER OF THE ROLLS.--I will not overrule the settled practice of the office. The effect of the construction which the plaintiff's counsel puts on the rule would be, that under the 3rd General Order, after the last day of Term, the offices would be open from twelve to three o'clock each day only. From the year 1843 to the present time, a period of six years, the word "vacation" has always been considered to mean the period during which the court is not sitting; and, having been informed by the officer that such is the uniform practice, I will follow it, unless clearly of opinion that it is wrong. The notice in this case is not regular, for it does not state what the documents are, an inspection of which is required. Every notice should be framed in such a manner that the court can turn it into an order; it should also specify the irregularity complained of, and the application should have been to set aside the order, publication having passed contrary to the provisions of the 93rd General Order. In accordance with the view taken by the late Master of the Rolls, I consider the word "vacation" is A notice of motion, served for a particular day, referrable to the period when the court is not sitting. I shall obtain a certificate to shew what is the established practice which ought to be invariably observed. MASTER OF THE ROLLS.-I will make the decree, reciting that the Attorney-General appeared by his counsel, and consented to be bound by the proceedings. GRAVES v. GRAVES.-Feb. 14. should state that the motion will be moved at the Hobart moved for the discharge of a receiver, he MASTER OF THE ROLLS.-This notice is not "Declare that publication passed regularly according to the course and practice of the court, and refuse the motion with costs, without pre-regular. Every notice of this nature which is judice to the plaintiff serving a notice of served for a particular day, should state that the motion for the present sittings, and specifying motion will be moved at the sitting of the court. in his notice the evidence which he seeks to You must, therefore, serve a new notice. be at liberty to give, and the witnesses he desires to examine." Lib. 282, fo. 50. EQUITY EXCHEQUER.-Feb. 9. IN THE MATTER OF THE IRISH SOUTH-EASTERN EX PARTE Kelly. CORAM PENNEFATHER AND RICHARDS, B.B. Railway Company-Payment out of CourtCosts-Wilful Refusal. K., the occupier of premises taken by the company, had agreed to give up the possession for £23, but when a clerk of the company afterwards came to demand possession accordingly, and stated that he had the money agreed on in his pocket, K. refused to surrender, on the ground that his sister had an equal interest in the premises with himself, and required compensation. The company thereupon lodged the money in court, to K's separate credit, on the ground of a refusal by K. to accept it, but the warrant did not set forth the peculiar circumstances of the case. Upon K. presenting a petition for payment of the sum out of court-Held, first, that the money, having been lodged to his separate credit, it was an admission of his title, and he was entitled to be paid without a reference. Secondly, that the tender was insufficient and the warrant defective, and therefore that the company were not entitled to their costs; nor was petitioner, as his dealings were tainted with mala fides. The petition of Samuel Kelly-after setting forth his title as tenant at will of the premises of which possession had been taken by the company, and the service upon him of the several preliminary notices required by the act-stated that an agreement had been entered into between petitioner and the railway company, by which he was to give up the land for the sum of £23,-that on the 9th of February, 1848, a solicitor's clerk, in the employment of the company, went, along with the subsheriff, to the premises in question, and, without payment or tender of the purchase money, or any sum whatever, took forcible possession of them, on the ground that the company had lodged the purchase money in court, that petitioner had not been tendered or shewn the purchase money by the clerk, who, when he came to demand possession in the first instance, alleged that he (the clerk) had the money in his pocket. The petition prayed the payment of the money out of court, in the usual form, with the costs of the petition. The company opposed the application, and an affidavit sworn by the solicitor's clerk stated that the deponent had repeatedly told the petitioner that he was ready to pay him the £23 on getting possession of the premises, and had repeatedly requested him to accept the money, but that petitioner, in reply, had stated, in the presence of his sister, that she (his sister) was equally entitled to the premises as petitioner, and refused to give up possession until she was satisfied. The question turned on the right of a party to money lodged by a company to his separate credit, and on the construction of the 76th and 80th sections of the Lands Clauses Consolidation Act. Bond Coxe for petitioner.-The money having been lodged to the separate credit of petitioner, is a primâ facie admission of his title. Even where money is lodged to the credit of the petitioner and all other parties interested, the petitioner, on an affidavit of his title, is entitled to have the money paid to him, (Ex parte Grange, 3 Y. & C. 68). By the 79th section, the party in possession is to be deemed the owner and enti tled to the money. (Richards, B.-On this branch of the case there is no difficulty; the petitioner is clearly entitled to the purchase money. The only question is as to the costs.) Wall, Q.C., contra.-The exceptional clause of the 8th section precludes a party from costs if, by his own act, he brings himself within it. Possession was the only title which petitioner here had to shew the company, and they could not pay him until they had obtained that possession. The attempt on the part of petitioner to set up the title of his sister was such an adverse claim as to Thomas v. Evans (10 East. 104); Dickinson v. PER CURIAM.-There is a difficulty in this case, arising from the circumstance that the warrant under which the company lodged the money sets forth the petitioner's refusal to accept it to be the sole ground for the lodgment. Now, there was another and a more proper ground on which they should have lodged the money, and that was the adverse claim put forward by the petitioner's sister. The tender strictly was not a legal one; and the company's warrant has been very loosely framed, and should have set forth all the special facts of the case. On the other hand, an attempt has been made by the petitioner to extort more money than he had originally agreed for. We shall, therefore-as there has been default on both sides-direct the petitioner to be paid the amount in court, and pronounce no rule as to the costs of the petition. COURT OF EXCHEQUER CHAMBER. ROCHE v. O'BRIEN.-Feb. 1, 2. CORAM BLACKBurne, C.J, Doherty, C.J., PIGOTY C.B., PENNEFATHER, B., TORRENS, J., CRAMPTON, J., PERRIN, J., RICHARDS, B., BALL, J, JACKSON, J. Absente- LEFROY, B., AND MOORE, J. Will-Construction-Estate Tail. A., seized of the reversion in fee, devised it to B.. will and codicil of John Roche, which were as follows: per "Whenever it happens that the Aghada estate, by want of male heirs, to wit, of the said James Joseph Roche, or by any other contingency reverts back to me, I hereby leave it in as full a manner as I can convey it to my nephew, William Roche, to be enjoyed by him and his lawful begotten heirs male for ever; and, as I have perfected leases to him, in trust, of the demesne and two adjoining farms of Aghada, subject to a yearly rent according to a valuation made, I leave him my interest, if any I had, in those leases; and in case of his not coming into possession of the estate by the means above-mentioned, I leave him £6,000 of my £4 cent. stock, to be held by trustees, the interest of which is to pay the rent of the demesne and two farms above mentioned; to my eldest grandson, James J. R. O'Brien I leave £10,000 £4 per cent. stock; to my grand-daughter, Jane O'Brien, I leave £4,000 £4 per cent. stock; to my daughter, Mary O'Brien, I leave the £4,000 £4 per cent. which I settled on her as a marriage portion on her marriage, for her use and that of her younger children; to my niece, Ellen Verling, I leave £1,000 £4 per cent. stock, with £30 a-year profit rent I leave on her brother Bartholomew Verling's stores; to my grandson, J. Roche O'Brien, I leave also ny interest in White Point, after his mother's death; I leave £100 to my sister, Ellen Verling; to my sister, Julia Enery, £100; to my nephew, Doctor Verling, and his sister, Catherine Ellis, £100 each, and I desire the stock on the farm to be sold to pay these legacies; to my nephew, William Roche, and my grand-daughter, Jane O'Brien, I leave my household furniture, plate, &c., and it is my wish, if the rules of our church allow it, that they should be married and live in Aghada house; God bless and prosper them and their offspring. To the parish of Aghada, I leave the school-house, and £20 a-year for its support, and also the chapel and priest's house I leave to the parish rent-free for ever, as long as they shall be used for such specified purposes; the five slate houses I built in the village, I leave to five of the poorest families rent-free; to David Coughlan I leave the house he now lives in during his life; to my servant, James Tracy, I leave the house his wife now lives in; and to my wife's servant, Mary Ahearne, otherwise Finne, her house rent-free during their lives; and to each of those three, viz., David Coughlan, James Tracy, and Mary Ahearne, otherwise Finne, I leave £10 a-year during their lives: having had unbounded confidence in my unhappy nephew, James Roche, I did not take legal means under the settlement I made to secure those last bequests out of the Aghada estate; I trust, and hope, and desire that whosoever is in possession of the estate will confirm these my wishes and intents. I appoint my trusty friend, Henry Bennett, (my present law agent) William Roche, and my daughter, Mary O'Brien, as executors of this my last will." The codicil to the will was as follows:"By my will dated the 5th day of January, 1826, I appointed my friend Henry Bennett, my nephew, William Roche, and my daughter, Mary O'Brien, executors to that will; now, by this codicil, I annul that appointment, and appoint John Gibson, barrister-at-law, Bartholomew Hackett, of Middleton, distiller, and my nephew, William Roche, as my executors to that will, and do hereby empower them to name and appoint two trustees for the purpose of managing the sums I left to my nephew, William Roche, my grand-daughter, Jane O'Brien, and my grandson, J. O'Brien, as it is my intent and will that they should only receive the interest, and the principal to remain untouched during their lives, to go to their children; out of William Roche's interest the rent of Aghada which I have leased him is to be paid; and I desire that he and my grand-daughter Jane, who are shortly to be married, will reside there. I leave William Roche all the stock, &c., on the farm, and to him and his wife all my household furniture, plate, and china, and make them my residuary legatees; it is my will that my grandson, James R. O'Brien, shall live with them at Aghada until he is of age, which is to be at the age of twenty-five, and not before; and the trustees are to pay him until that period £100 a-year to complete his education, and another £100 a-year during that period to his mother, and the remainder of the interest of his £10,000 to be paid William Roche to assist him in keeping up Aghada during that period, and I trust by that time he will have a profession by which he will add to his income; I request and desire that nothing shall prevent his following his profession; it is my intention that William Roche and his wife shall step into possession of Aghada house, demesne, and farms, which are leased to him in the same way that I leave it when it shall please God to take me; in case of the death of William Roche before his wife, she is to be paid the interest of her £4,000, to be made up £200 a-year as her jointure; and if she dies before him, he is to have the £10,000, provided she has no issue; but if she leaves issue, it is to go to them after William Roche's death, as before directed." Sir C. O'Loghlen for the plaintiff in error, the defendant below. The question is, whether William Roche took an estate tail alone, or an estate tail with an expectant or reversionary fee. First, it is clear that the testator did not mean to die intestate, and, that nothing might be undisposed of, made William Roche and his wife residuary legatees. Secondly, that the testator having a contingent reversion in fee in the property, he devised it from his heir at law, and gave it to another, charging it in such a manner as to shew that whoever should have the property should take under the will. These charges cannot be enforced against the heir at law, as he takes by title paramount. Thirdly, that, having his heir at law in contemplation, he took from him that he would otherwise be clearly entitled to. He had most fully provided for him, and designedly gave the property to William Roche, for the purpose of founding a family of the name of Roche, who were to dwell in Aghada house. If the construction contended for by the plaintiff below be the true one, the manifest intention of the testator is wholly defeated. The re version would not be disposed of; his heir would take at law, and not under the will; and the estate would go to the very person he intended to deprive of it. The first portion of the sentence, "I hereby leave it (the Aghada estate) in as full a manner as I can convey it," conveyed the fee simple, and the subsequent words, "lawful begotten male heirs for ever," reduce it to an estate tail, with a reversion in fee. Chyck's case, (Dy. 357, Pasch. 19, El.) That case, as reported in Dyer, is still law, and the case reported in Benloe, 300, and Anderson, 51, by the name of Baker v. Raymond, is not the same. In Abraham v. Twig, (Moore 425, 11 Jac.); Roberts v. Roberts, (2 Bul. 127, 13 Jac.); Blanford v. Blanford, (1 Rol. 320, 21 Jac.); Sergeant's case, (2 Rol. 425); Herbert v. Thomas, (Har. and Wol. 434-per Littledale, J.); Doe d. Herbert v. Thomas, (3 Ad. & El. 128, Sheph. Touch. 445). All these authorities rely on Chyck's case, as cited in Dyer. Daniel v. Uply, (Latch. 43,) is a decision to the same effect, by Doderidge, J., who was either at the bar or on the bench at the time of the decision of Chyck's case. The following cases and authorities were also relied upon, and commented on during the argument-Turnman v. Cooper, (Cro. Jac. 476, S. C. Rol. Rep. 19, 23, S. C. Poph. 138; 1 Thomas's Co. Litt. 518, 21 a.); Altham's case, (8 Coke 154, b.) denied to be law in Turnman v. Cooper, (Pop. 138; Year Book, 21 Hen. 6, 723, b). (Blackburne, C. J.-That was the case of a deed where the whole estate passed from the grantor.) (Anon. Brownl. 45); Holland v. Fisher, (O'Bridg. 212; 1 Steph. Black. Com. 460); Mellish v. Mellish, (2 B & C. 520); Barker v. Giles, (2 P. W. 279, S. C., affirmed on appeal; 3 Bro. P. C. 297); Littleton & Ux v. Green, (4 M. & W. 229); Nanfan v. Legh, (7 Taun. 85, S.C. 2 Marsh. 107); Doe d. Ellis v. Ellis, (9 East. 382); Davie v. Stevens, (1 Doug. 321); Doe d. Murch v. Marchant, (6 Man. & Gr. 813). Chatterton, with him R. W. Greene, Q. C., and F. Fitzgerald, Q. C., contended-That, according to the true construction of the will, William Roche took only an estate tail. That the construction contended for by the defendant below would tend further to defeat the testator's intention to found a family, than that sought to be put upon the will by the plaintiff, as the fee would be more easily alienated. That the devise shewed no intention of the testator to dispose of his whole property; the words were, not my estate, but "the Aghada estate," words of description only. The charges made by the testator upon the devised estate would take place on the reversion, whether the estate be taken by descent, or under the will. That the reversion was disposed of, and that there was no general intention expressed in the will inconsistent with an estate tail. The learned counsel distinguished Chuck's case, and Turnam v. Cooper, and cited and referred to Altham's case, (8 Coke, 154, b.); Ossulton's case, (3 Salk. 336); Baker v. Wall, (1 Lord Ray. 185); Doe d. Lord Lindsay v. Colyear, (11 East. 548); Slater v. Slater, (5 T. R. 335); Nanfan v. Legh, (2 Marsh. 107, S. C.; 7 Taun. 85); Davie v. Stevens, (Doug. 321; Co. Litt. 27, a.); Church v. Wyatt, (F. Moore, 637); Wood v. Ingersole, (1 Bul. 63); Doe d. Eustace v. Easley, (1 Cr. M. & Ros. 823); Winter v. Perratt, (9 Cl. & Fin. 613); Angell v. Angell, (9 Q. B. 353); Oddie v. Woodford, (3 My. & Cr. 584); Doe d. Ellis v. Ellis, (9 East. 382); Trenke v. Frencham. (2 Dy. 171); Chilton v. Cooper, (2 B. & Ald. 610). Napier, Q. C., in reply. The court will effeetuate the intention expressed on the face of the will. It is clear from the whole testament, the testator thought he was devising the property out and out. There is first a general expression conveying the fee, and the subsequent words cannot narrow it. By the "Aghada estate," he intended his whole interest, and to convey it "in as full a manner as he could," when he should become possessed of the reversion in fee, and the charges evidence that intention to deal with the whole. He referred to Randall v. Tuchin, (6 Taun. 418-per Chambre, J.); Moffet v. Catherwood, (Al. & Nap. 472); Cotton v. Stenlake, (12 East. 515). a Feb. 2.-BLACKBURNE, C. J., now delivered the judgment of the court.-This is an action of covenant brought by the plaintiff below as heir at law of John Roche, the testator, claiming the rent reserved in lease executed by John Roche to Wm. Roche, whose assigns the defendants are, and the plaintiff below insists he is entitled to the reversion, as beir at law of John Roche. The declaration states a settlement executed on the marriage of the testator's nephew, James J. Roche, limiting the estate to John Roche for life, remainder to James Joseph Roche for life, remainder to him in tail male, with the reversion in fee to John Roche, the settlor. It then states the will of John Roche, devising his reversion to William Roche in tail male, and the death of William and James without issue male, and traces the descent of the reversion to the plaintiff. The plea of the defendant sets out the will and the codicil of the testator, John Roche, in hæc verba, on the construction of which the question in this case wholly depends. The plaintiff below alleges that Wm. Roche took only an estate tail, which has now determined. (The learned Chief Justice then read the words of the will.) It is not denied that the words in the devise give an estate tail. Lord Ossulton's case, (3 Salk. 336,) puts this question beyond doubt. The addition of the word "for ever," makes no difference. Baker v. Wall, (1 Ld. Raymond 185). Davie v. Stevens, (1 Doug. 320,) was a devise to A. of the "fee simple and inherit ance of Lower Shelstone, to him and his child, or children, for ever." The language of Lord Mansfield is, every word, applicable to this case. Nanfan v. Legh, (7 Taunt. 85,) is a leading authority, and has a strong resemblance to this case, and there the devise was held to confer an estate tail, and no more, and for this position there will be found a large body of authority. The de fendant below contends that there is a devise to Wm. Roche of two distinct estates, first, an estate in tail male; and secondly, of an estate in fee expectant on the reversion. To maintain this view the sentence is divided in two, and the order of it inverted, for the purpose of avoiding the absurdity that would follow. I know of no authority for so altering the plain language of a will. The context requires no such construction, but rather the contrary. I shall only say, that in all the reasons given in the cases for this construction, it never occurred that in a devise a sentence could be stopped in the middle. The judgment of my brother Crampton in the court below contains so able a review of Chycke's case, that I shall not further refer to it. The judgment of Lord Ellenborough in Doe d. Ellis v. Ellis, (9 East. 382) which is now impugned by the defendant below con&tains a clear exposition of the law. No one can read that case without seeing that it militates against the whole argument of the defendant's counsel. Considering the whole will, we think the inference to be drawn from it is, that the testator intended W. Roche to take an estate tail only. Judgment affirmed. words of the second license (which alone could be supposed to legalise the sale) were, We, &c, do license, &c., being a brewer of beer for sale, and having taken out and paid for a license to brew, &c., to retail strong beer, which he or they shall brew, and be charged with duty thereon, to be consumed elsewhere than on their premises; that is to say, to retail the same at and from their premises in the city of Waterford, being part of the entered brewing premises of the said, &c., but not elsewhere, and not to sell any beer to be drunk or consumed upon the premises where sold," &c. Jebb, for the appellant, stated the case, and referred to sections 2, 7, 10, 26 of 6 Geo. 4, c. 81, but was stopped by the court calling on Fitzgibbon, Q. C., for the respondents.-The respondents are not restricted to retailing the beer on their own premises alone; the license is inconsistent with any such supposition, and no restriction of the kind appears in the act. The words of the license enables them to retail beer "at and from" EXCHEQUER OF PLEAS.-HILARY TERM. their premises in Waterford; and unless the word STEEVENS, Appellant. STRANGMANS, Respondent. A. and Co., being brewers at W., and having two licences one authorizing them to brew for sale, and another to brew and retail beer to be consumed elsewhere than on their premises-sent a van to C. in charge of a servant, who from it on their behalf sold beer by retail, to any person who offered to buy. Held, that no other licence for doing so was required by the 6 Geo. 4, c. 81. Quære-Was any licence necessary for such a sale? Semble-That in cases of serious doubt as to the true construction of statutes, and licenses there under, the court will be slow to inflict penalties for their infringement. This was a case stated for the opinion of the court, pursuant to the 84th section of 7 & 8 Geo. 4, c. 53, by the justices of the peace, at the Quarter Sessions for the city of Waterford. It stated that the respondents carried on the trade of brewers, at premises in the city of Waterford-that they had also a bottling establishment in the same premises, from which beer in bottles was sent to their cus tomers that they had two licences, one for brewing, and the other a brewer's licence for retailing beer to be consumed elsewhere than on their premises; and that a servant of the respondent's had taken a van, with bottles of beer in it, and sold the beer publicly by retail, from the van, in the street of Clogheen, several miles distant from Waterford. The appellant had lodged an information against the respondents, for selling without the license required by the 6 Geo. 4, c. 81, which came on to be heard before three justices of the peace for the city of Waterford, by whom it was dismissed; whereupon he appealed to the general Quarter Sessions of the same city, who stated the case for the opinion of this court; and the question for the consideration of the court now was, were the respondents liable to the penalties imposed by the 6 Geo. 4, c. 81, s. 26, on persons selling without the licenses required by that act? The material "from" be struck out, the present sale is within the license; for surely the purchaser would say he The 10th section certainly says, that no one license had the beer "from the respondents' premises." shall authorise a person to carry on his trade in more than one separate set of premises. But the respondents did not "carry on their trade,” as menselling, by a mere act of selling like the present; tioned in their license, which was for brewing and nor could a van be considered a "set of premises," within the meaning of this section. Harris, on same side. The charge in the information is, that the respondents sold without taking out the license required by the statute. If any have been mentioned in the statute; but the stalicense were necessary for such an act, it must tute contains no license whatever appropriate to such a sale as this. The respondents could not, as brewers, have got any other licenses than the two they have. The retailer's license mentioned in the act, and which it is pretended they might have had, is expressly confined to fixed premises. They shew which of the licenses mentioned in the statute the respondents should have had; and when they attempt to do so, this will be found to be a casus omissus in the act. Hubbard v. Johnson (3 Taunt. 219) shews how stringently these acts should be construed. Smyly, in reply. We rely on the 10th section of the statute, which says a party shall not trade, on one license, in more than one set of premises; that is a prohibition of any act of trading, not carried on in premises for which a license has been taken out. PIGOT, C.B. This case need not stand over. The court does not think it so clear as to warrant them in giving judgment against the respondents. There are several matters to be considered before we should inflict a penalty on them. First, is it plain that there has been a sale not within the terms of the license which the respondents had? By that license, they are permitted to retail beer "at and from" the premises which they hold in the city of Waterford. Now, the word "from" will bear two constructions; it may refer to a sale, at any place, |