action can be brought; besides, the plea does not state that the tenants refuse to pay rent, on the ground that the plaintiff's title is invalid, or that they acknowledge the title of the defendant; and even by such an action, the question in dispute could not be decided. Counsel referred to Bechinall v. Arnold (1 Ven. 354, and Mitf. E. P., last ed. 324).

Mr. Longfield, Q.C., in reply, contended that the question in dispute could be tried by an action of trespass for mesne rates, and relied on Butcher v. Butcher, (1 Man. & Ry. 221.)

account."
His Honour also referred to Phillips on
Evidence, 8 ed. 514, and Hard. 472, and expressed
some doubts, as to whether the judgment against
the tenant would be evidence against the defendant.
He then said, there was another ground in support
of the plea stated by Mr. Longfield, which was of
some importance. After the death of J. Lindsay,
the defendant entered into possession of the house
and demesne, and remained until the 27th of
October; and during that interval the plaintiff
could have brought an ejectment against the de
fendant, and tried the question in this manner; but,
instead of doing so, the plaintiff took forcible pos
session of the premises. His Honour said he con-
sidered that a party should not be permitted to
take advantage of his own wrong; and, as after
the 1st of May ejectments could be brought against
the tenants, and the question tried at the next
Assizes, he was of opinion the plea should be al-
lowed.

EQUITY EXCHEQUER.

DORCUS AND ANOTHER v. DOHERTY—April 23.
Construction of Will-Words sufficient to pass

legal estate in Mortgaged Property.

April 17.-The MASTER OF THE ROLLS, after alluding to the form of the pleas, upon which his Honour gave no opinion, as the question was not argued, and also to the alteration of the law as to the revocation of wills effected by the late statute, upon which there was not any point raised, said-The point in this case is, whether part of the lands, being in the hands of the tenants, who have not attorned or paid rent, the question can be decided at law; or whether plaintiff can sustain a bill to perpetuate testimony. His Honour then alluded to the case of Angell v. Angell (1 Sim. and St. p. 89), where the Vice-Chancellor says, "The jurisdiction which Courts of Equity exercise to. perpetuate testimony is open to great objection; A testatrix, who died possessed of a mortgage in first, it leads to a trial on written depositions, which freehold lands, after reciting that she was pos is much less favourable to the cause of truth than sessed of several sums of money lent and advanced the viva voce examination of witnesses, but, what to several persons, and charged upon freehold and is still more important, inasmuch as those written other lands, gave and devised the same unto S. depositions can never be used till after the death D., and G. H. O., upon the several trusts therein of the witnesses-and are not, indeed, published mentioned, and after giving several pecuniary till after the death of the witnesses it follows, and specific legacies, proceeded thus "I leave all whatever perjury may have been committed in the rest, residue, and remainder of my property, those depositions, it must necessarily go unpunished, of what nature or kind soever, I may die possessed and this testimony has, therefore, this infirmity, of, to the said G. H. O., in trust for the children that it is not given under the sanction of the penalof Wm. O." Held, that the legal estate in these ties which the general policy of the law imposes mortgaged premises passed to S. D. and G.H.O. upon the crime of perjury. It is for these reasons By bill filed to foreclose, &c. a mortgage of certain that Courts of Equity do not entertain bills to per- lands held for lives renewable for ever. The bill petuate testimony generally, for the purpose of stated a mortgage bearing date the 14th of Febru being used upon a future occasion, unless where it ary, 1838, whereby one Arthbutnot Emerson conis absolutely necessary to prevent a failure of veyed, by way of mortgage, certain freehold lands justice. If it be possible that the matter in ques- in the county of Donegal, to Anne Cunningham. tion can be made the subject of immediate judicial Anne Cunningham made her will, bearing date the investigation, no such suit is entertained." His 4th of February, 1847, in the following terms Honour said, that if judgment were obtained in an "Whereas I am possessed of several sums of money action against the tenant, it would still be ques- lent and advanced to several persons, and charged tionable whether it would be binding on the de- upon freehold and other lands. I give and devise fendant, and alluded to the case of Dew v. Clarke the same unto Solomon Dorcus, and G. H. O'Neill," (1 Sim. & Stu. 108), in which it was argued, on upon the several trusts therein mentioned; and after the part of the plaintiff, that there were outstand-giving several specific and pecuniary legacies, proing terms which prevented actions of ejectment from being brought; and on the judgment in that case, Sir J. Leach says, (page 114), "It appears to me that this bill makes out no case to perpetuate testimony. Although it were true that the validity of the will could not, by reason of the lease, be immediately tried by the devisees in trust, yet it may be immediately tried by an action for rent against the tenant. Testimony can be perpetuated only where by no means the plaintiff can presently assert his title to the property. I must, therefore, reject altogether the prayer to perpetuate testimony, and consider the bill as if it were not inserted, and not, therefore, multifarious on that

ceeded thus-"I leave all the rest, residue, and
remainder of my property, of what nature and kind
soever, I may die possessed of, to the said G. H.
O'Neill, in trust for the children of W. N. ONeill;"
and S. Dorcus and G. H. O'Neill were appointed ex-
ecutors, and proved the will accordingly. The only
question in the cause was whether the legal estate
in the mortgaged premises was vested under the
will in Dorcus and O'Neill, or whether the heir-at-
law of the mortgagee was a necessary party to the
suit.

Tombe, Q.C., & Mr. T.K. Lowry, for the plainti contended that the legal estate in the mortgaged premises, passed under the will to Dorcus and

four nieces, and divided the surplus after the widow's jointure, in fifths, to each a fifth-on every future occasion the plaintiff refused to accept of this distribution-and claimed to be entitled during the life of the widow to 5-9ths, and to one-fifth of 4-9ths, and after her death to the entire. The nieces, during life of widow, claimed 8-9ths, and after her death 4-9ths.

Brewster, Q.C., Gayer, Q.C., and Mr. Flood, for the trustee.

George, Q.C., and Mr. J. T. Bagot, for the heir-at-law.

PENNEFATHER, B.-This case stood over for the purpose of considering the construction to be put upon the codicil. No one who has heard the case argued, and read the documents, but must Green, Q.C., F. Fitzgerald, Q.C., Mr. Bur- feel that it is a case of difficulty and uncertainty. roughs, and Mr. Odell, for the plaintiff. We We have given it the best attention in our power, submit, that by the codicil the revoked five-ninths without, however, being able to overcome the diffi go to the plaintiff, whose estate is thus accelerated, culty; and the members of the Court have not and that the previous gift to the nieces is modified, been able to arrive at the same conclusion as to the the estate for their own lives given by the will construction of this codicil, my brother Richards being cut down to an estate pour autre vie, that of and I differing in opinion from my brother Lefroy. the widow. It was the intention of the testator, The will was evidently prepared with attention; that the plaintiff, who was the object of his bounty, and the testator, after different specific devises, dishould have his estate brought into possession im-rected the rest of his property to be divided into mediately on the death of the widow, and not post-nine parts or shares, referring to the persons by poned until after the deaths of the co-devizees; name; four to go to his nieces, the daughters of otherwise, he might never be able to exercise the his brother John, for their lives respectively, as powers of jointuring and leasing given by the will tenants in common; the remaining five to five difto him, only when in possession of the estate. ferent individuals. Nothing material arises as to Admitting the general principle, that a clear gift these five shares, for it is beyond doubt they were in a will is not to be cut down by doubtful words revoked, and that after the death of the different in a codicil, that principle is controlled by another, tenants for life, all the testator's property was that the intention of the testator should be effec- given to his nephew, Henry, for life, remainder to tuated; and where the gift in the will is inconsistent his first and other sons in tail male, giving him a with the codicil, and an entirely new disposition power, when in possession, of leasing and jointur by the latter, it shall prevail. Lord Hardwicke v. ing. I mention this power as it was pressed in Douglas, (7 Cl. & Fin. 794;) Sandford v. Sandford, argument, and it has some influence on the mind of (1 De Gex & Small. 67.) [Pennefather, B.-Yes, my brother Lefroy. There is no preamble to this where the two instruments are perfectly inconsistent codicil-no recital to explain the views or intention and irreconcileable, as where an estate in fee is of the testator. We must, therefore, collect from given by the will, and for life by the codicil.] the words themselves its true construction. In There is an inconsistency in a devise to A. for life construing it, we are bound not to reject nor introby will, and to A. pour autre viè by codicil. The duce words without an absolute necessity, and yet testator had two objects by the codicil; first, that we are bound to put a construction upon the inthe division of his property should be altered, and, strument, if not altogether insensible. We are all secondly, that it should stand only for the life of agreed that the first portion of this codicil is free the widow-that upon her death the residuary de- from doubt. [His lordship here read the portion visee should enter into possession of the property, of the codicil alluded to, revoking the five shares.] with all its rights and incidents. This is a clear revocation of the five shares; the question then arises, is anything else revoked? I think there is nothing else revoked. It is remarkable, that the word "only," which was perfectly legible, has been partially erased. The codicil formerly read thus:-" I order the said division to stand only." If this word, only, had remained, it might have struck the testator that the shares in remainder to his nephew, Henry, might be revoked also. If they were only to stand as to the shares to his nieces, the inference might be, that the five shares might be revoked to Henry also. The testator might have struck out the word only, as shewing he intended the word stand to apply, not only to his nieces, but to Henry also. The meaning I put on the codicil is, that the four shares remain unaffected, and that the revoked five-ninths should stand for Henry and his sisters during the life of his wife, with benefit of survivorship as to those five-ninths amongst them during that period; after the death of the widow, the five shares to fall in to Henry. I cannot say this opinion is free from doubt, but it is the best I have been able to form. I would further say, that if it had been tabe testator's intention to revoke the shares given nieces by the will, nothing would have bee

Longfield, Q.C., Wall, Q.C., Mr. Hickey, and Mr. Newton, for the nieces. It is conceded on the other side that the will admits of no doubt, and that the codicil is obscure. The case, then, rests on the settled rule of construction,-where the will contains a clear gift, it is not to be revoked by doubtful expressions in a codicil. (1 Jar. 165.) The testator knew how to use legal terms; when he wished to revoke, he expressed the intention distinctly; but when he comes to speak of the share to the four nieces, he orders that to "stand as in his will mentioned." When he associates the plaintiff with the nieces, he is only dealing with the revoked five-ninths; they were equally his objects as the plaintiff. During the widow's life, there was the same motive of increased bounty for both; the provision for both was suspended during her life; at her death, the nieces got the houses, the plaintiff the entire five-ninths. In the codicil, a new sentence should begin at the word, "also;" "for" should be read "as to," "as regards," and it then clearly appears that the gift in the codicil is of other property, and if so, the case comes within another settled rule of construction, that the gift in the codicil was cumulative, not substitutional.

easy than to have expressed his meaning. He appears to have been perfectly apprized of the meaning of words of revocation.

RICHARDS, B-I have arrived at a similar conclusion with that of my brother Pennefather, though not, perhaps, by the same train of reasoning. It is clear, there is first a revocation of five shares, but the testator limits the general character of revocation, by directing that four of the divisions should "stand." The codicil, as it was originally, directed that they should "stand only." If that were so, the word "only" would be inconsistent with what follows, as to the remaining five-ninths. If it were the intention of the testator to give the daughters of his brother John a share in the remaining five-ninths, the word "only" would undoubtedly be inconsistent with the intention to give more than four-ninths, it is also inconsistent with the intention that Henry should take "as therein mentioned," that expression evidently applying only to the four-ninths. It is important to consider, that where the devise to his nieces is clear by the will, it should not be cut down by a codicil, without a clear evidence of such an intention. It would require clear and manifest evidence of intention, to justify us in withdrawing the testator's bounty. The balance of evidence in the instrument is quite the other way. The difficult part to construe is, that with reference to the five-ninths. "Also for said profits" I understand to be used to avoid repetition, and to refer to the revoked profit rents the nephew would take, if the five-ninths were revoked; but the nieces were associated with him during the life of the widow, with benefit of survivorship during that period.

LEFROY, B. The principle on which the Court is bound to act, is, not to declare an instrument void for uncertainty, if we can come to a conclusion as to the meaning of the testator without insertion, transposition, or omission of words. All the members of the Court are agreed in the principle; in the application of it they differ. Adopting stringently this rule, the conclusion I have finally arrived at is, that the codicil takes away five-ninths from the parties they were originally given to, without disturbing the remainder, but accelerating it; and as to the four-ninths, the codicil makes a modification of the bequest in the will, reducing the nieces' life interests, as tenants in common, to joint estates for the life of the widow, with benefit of survivorship during the life of the widow. The effect of that is, that at the death of the widow, Henry will be at once in the possession of the whole, and so capacitate himself to exercise those powers under the will he otherwise could not. It is true we have no clue in the codicil, as to what the testator meant; we must, therefore, construe it by the precise terins he has made use of, looking at the provisions of the will with a reasonable intendment that the codicil was made on further consideration. It is important to observe, that on the death of the widow his nieces took an increase of property; by the will, his nephew Henry could perform none of the powers given him, till after the cessation of all the previous lives. Was that a convenient disposition? We must recollect, that Henry was to have the means of providing for

his wife and children, and the testator made the codicil to remedy this inconvenience, of postponing the exercise of these powers until the several fragments of the estate came by ninths into possession. It is admitted, this codicil, in the first instance, is a revocation of five-ninths. The effect of the construction by my brothers is, to set up the devise of these shares during the life of the widow, and as to the four-ninths, during the lives of his nieces. That would be a strange state to leave his property in. I was drawn to these considerations by the observations of Mr. Burroughs, and when it was presented to my mind that the testator had a good reason for the variation in the disposition of his property, I changed from my first impressions. 1 cannot insert words, nor can I withdraw the connected word, "and-also," between the middle and latter portion of the clause. I think it much more reconcileable with the testator's intention, to sweep away the four-ninth's, and to abridge the rights of the nieces, in order to reduce Henry's rights into possession. I have arrived at this conclusion with great doubt, in consequence of the obscurity of the instrument, and the doubts of my brothers Pennefather and Richards.*

In

The Chief Baron was absent.

QUEEN'S BENCH.-HILARY TERM.
WRIXON v. WALKER.-Jan. 19.
Demurrer-Covenant-Variance.

covenant for rent by lessor against lessee, the
declaration stated, that the lessor demised to the
lessee certain premises, to hold from the 1st of
May 1846, for seven years, "yielding, during
the said term, the yearly rent of £80, to be paid
on every 1st of November and 1st of May in each
and every year." It then stated, that the lessee
covenanted that he would "from time to time,
during the term, pay the said rent on the said
days and times aforesaid." The lessee set out the
lease on oyer, and from the reddendum it ap-
peared that the first half-year's rent was not to be
payable until the 1st of November, 1847, "the
lessee having already paid the year's rent to
accrue due on the 1st of May, 1847." Held,
(Perrin, J., dissentiente.) on demurrer to the
declaration, that the lease was set out in the de-
claration according to its legal construction and
operation, and that there was no variance.
This case came before the court on a demurrer to
a declaration on an action of covenant. The de-
claration, which was filed on the 3rd of June,
1848, stated, that by an indenture dated the 11th
of April, 1846, the plaintiff demised to the de-
fendant certain premises, to hold the same from
the 1st of May, 1846, for the term of seven years,
"yielding and paying therefore and thereout, yearly
and every year during the said term, unto the said
plaintiff, &c., the yearly rent or sum of £80, to be
paid by regular half-yearly payments, on every 1st
of November and 1st of May in each and every
year." The declaration then stated, that the de-
fendant covenanted with the plaintiff that he would
"from time to time, and at all times thereafter
during the term thereby granted, well and truly
pay to the plaintiff the said reserved yearly rent or

sum of £80, in regular half-yearly payments as aforesaid, on the said days and times aforesaid." The declaration then averred, that the defendant went into possession, and that on the 1st of May, 1848, a sum of £40, being half a year's rent, was due and remained unpaid, contrary to his covenant. The defendant set out the deed on oyer, and the reddendum was in the following words" Yielding and paying therefore and thereout, yearly and every year during the said term, unto the plaintiff, &c., the yearly rent or sum of £80, to be paid by regular half-yearly payments, on every 1st day of November and 1st day of May, in each and every year during the term hereby granted, the first half. yearly payment thereof to be made on the 1st day of Nov. 1847, the said lessee having already paid the year's rent to accrue due on the 1st day of May,

1847.

made by the tenant and deposited in the hands of the landlord, was first applied; but the tenant had expressly covenanted that he would pay on the days and years aforesaid, during the entire of the term. There was to be no qualification of the covenant, but in the mode of payment; the landlord being, as it were, the paymaster for the first year's rent, and the tenant having a receipt in advance. I see no inconsistency between the two things, and am of opinion, if the pleader had stated that the covenant was not to pay during the term, but after the end of the first year, a demurrer would be taken for a variance.

PERRIN, J.-I am of opinion that there is a variance between the covenant, as set out in the declaration, and the agreement upon which the money was lodged. I will confine myself to the words of the lease and the words of the covenant. The declaration charges that the defendant covenanted to pay a half year's rent on the 1st of November, 1846, and on the 1st of May, 1847. Now, if a man covenants to pay a sum of money, he

The defendant then demurred specially, and (among other causes,) assigned, that the indenture was not set forth according to its legal effect and operation. To this there was a joinder in demurrer. Butt, Q.C., and Mackey, for the demurrer.-enters into an obligation to pay it; but in the There is a material variance between the covenant, as stated in the declaration, and the reddendum in the lease. The first half year's rent was not to be payable for eighteen months after the date of the lease, whereas, from the declaration, it would appear that it was payable in six months after. If the lease was not set out in oyer, the plaintiff could recover, in this declaration, a rent which the lease, when set out, shews he was not entitled to. The lease is not, therefore, set out according to its legal import and effect. They cited Baden v. Flight, (3 Bing. N. C. 685;) S. C. (4 Scott, 412;) Paine v. Emery, (2 Cr. M. & Ros. 306;) S. C. (5 Tyrw. 1097.)

present case no money was to be paid until the 1st of November, 1847, the lessee having already paid the year's rent to accrue due on the 1st of May, 1847, as appears by the lease. Upon that instrument, therefore, it is plain that the lessee did not enter into an obligation to pay over again a sum of money he had already paid. It is said, however, that he covenanted, but did not mean to pay. That is to be the legal operation and effect of his covenant, but in my judgment the legal operation of a covenant is, that when a party enters into it, he becomes bound by it, and obliged to pay the money in pursuance of that covenant. The defendant, in the present case, says—Because I had already paid this money, I did not contract to pay

J.Clarke and Barry contra.-Even if this were a variance, it should be assigned specially. [Black-it over again. Suppose the plaintiff had declared burne, C. J.-It is a ground for general demurrer.] On the face of the lease, there is a reservation of the rent, as stated in the declaration. [Moore, J.If the declaration had gone on to say, that the first year's rent was payable on the 1st of May, 1847, that would have been a variance.] The half-year's rent which we have declared for, became due on the 1st of May, 1848. It is unnecessary to aver what is not material.

BLACKBURNE, C. J.-I see no variance in this case, and think the declaration sets out the lease according to its legal construction and operation. The lease was for a term of seven years, and the rent was to be payable for the entire of the term; but in consequence of an agreement to appropriate in advance a sum of money in payment of the first year's rent, the tenant would only have to pay six year's rent during the term. That was a distinct collateral agreement, and in no way controlled or qualified the terms of the lease. It was to the same effect, as if the landlord had said to the tenant, "You have deposited a sum of money in my hands, and I will apply it in discharge of your obligation." CRAMPTON, J.-I am of the same opinion, and gee no inconsistency which can amount to a variance. The declaration sets out the lease in the very terms of the instrument. It is true that there was to be no payment of rent, until the advance, which was

for the two half years' rent, which had been already paid, according to the argument for the plaintiff, that would be a proper declaration; and upon a plea of non est factum, it would be held that there was no variance, although, upon the lease being produced, no money would appear to be due; and the result would be, that a verdict for nominal damages would pass for the plaintiff, on the ground that the defendant must have contracted to pay these gales of rent.

MOORE, J.-When I read the pleading in this case, I thought there was a variance; that was my first impression; but upon examining it more minutely, I have come to the conclusion, that there is no variance. The lease contains what was the contract between the parties, and the declaration sets it out literally. The rent was to be payable in each and every year during the term, by regular half-yearly payments, and the defendant covenanted accordingly; that was the contract. A collateral arrangement was entered into, at the same time, by which a sum of money was advanced, to be applied in discharge of those gales that were to accrue due on the 1st of November, 1846, and the 1st of May, 1847. That was no variance of the contract, and I am therefore of opinion that the contract is legally set out in the declaration.

Demurrer overruled.