« EelmineJätka »
mises in remainder, on the death of Richard White, jury; the costs of the last trial to abide the event. It is demised a portion of the premises to John Harte, unnecessary to enlarge on the points discussed in reciting the original lease and the aforesaid cove- argument. We are of opinion that the rule laid down nant, and that it had been agreed upon between in the cases cited by the defendant's counsel the parties that certain trees should be planted is a correct one, in proceeding against a lessee for instead of the building originally stipulated for. lives, after the expiration of a lease, and where there
Mr. Battersby, Q. C., (Mr. Hamilton Smythe is a covenant for renewal, as here. Where there is a with him) now moved, on behalf of the defendant, distinct contract, unannulled by any misconduct on that the verdict should be changed into a verdict the part of the tenant, and no condition unperformed for the defendant, or a non-suit entered. A tenant then on the dropping of the life, the tenure is refer. under a lease for lives, with a covenant for the rable to the contract, and a demand of possession addition of a new life, is not a trespasser upon the becomes necessary. We are likewise of opinion that expiration of the lives, but is entitled to a demand if there be a contract, the terms of which are iof possession. Such a tenant stands somewhat in performed, the tenant cannot be held to continue in the position of a purchaser, who, when he enters possession under the contract, and, therefore, a into possession before the completion of the pur-demand of possession is unnecessary. In this view chase, is held to be a tenant at will, and there must we are of opinion that a demand of possession is be a demand of possession to determine the will. necessary, if the jury are satisfied that the condition In the case of Lessee Walker v. Byrne (3 I. L. Rec. was fulfilled. Now, if the instrument, bearing date N. S. 68), it was held, that upon the expiration of in 1830, be genuine, and, as recited, another cona lease for lives, which contained a clause for per- dition (which has been fulfilled,) was substituted for petual renewal, a demand of possession must be the original one, the defendant would be entitled to made to sustain the ejectment. So in the case of have the verdict entered for him. Doe dem. Newby v. Jackson (1 B. & C. 448), where an agreement was made between A. and B. that the former should sell certain premises to B. if it
LUSCOMBE v. BLAKE.-May 3. turned out that he had a title to them, and that B. should have the possession from the date of the Interpleader-Costs of Sheriff. agreement, a demand of possession was held neces- Where, after the sheriff has obtained the common covenant to renew is not quite the same as an
interpleader rule, the claimant and execution agreement, because the latter binds both parties,
creditor enter into a compromise whereby the there being mutuality between them; but the case
former abandons a portion of his claim, the of a covenant is somewhat different.] Right dem.
claimant was directed to pay the sheriff all the Lewis and others v. Beard (13 East. 210) is to the
costs incurred. same effect. Counsel also cited Doe dem. Winterscale Mr. Blackburne having obtained the common idvi Newcomen (1 Jones Ex. Rep. 496, 4 L. R., N. S. terpleader rule on behalf of the High Sheriff of
Meath, the claimant and execution creditor subse. Pigot, C. B.-In the present case the conside- quently compromised the matter out of court. ration is one which goes to the whole contract, and On the day appointed by the rule for the parties therefore the condition must be performed before to interplead, Mr. Blackburne applied for the costs any contract legally arises.)
of the sheriff. Mr. M Donough, Q. C. (Mr. Plunket, Q. C.
Mr. Richards for the execution creditor. with him,) for plaintiff.-- There was no evidence at
Mr. Tuthill, for the claimant, relied on Ball s. the trial of a release, disposition, or waiver of the Bruen (Bl. D. & O. 283.) conditions, and no evidence given of its performance,
The following order was made :this is merely a qualified covenant for a renewal. In “ That the said J. C. E. (the claimant) do pay to Lessee Pilkington v. Talbot, (5 L. Rec. N. S. 11,) the said sheriff the costs of the said order of where an under-tenant holding under a toties quoties the 24th of April (the rule to interplead), and covenant to renew, subject to forfeiture or default, of this motion, when taxed, &c., without further had neglected to renew, he was held precluded from motion." setting up the want of a demand of possession as a defence. (This case is given more fully in 1 Furlong, L. & T. 204.) The dictum of Abbot, C.J.
ERRATA. (3 B. & A. 327,) is to the same effect. Pigot, C. B.-We shall set aside the verdict in Jordan v. Casual Ejector, ante p. 240 :-" The Court of
Read the two first lines of the marginal note Lester this case, as we conceive it right that the instrument Exchequer will not allow a tenant who has signed," de. of February 1830, which is most material in this
In JURIST No. 26, page 210, first column, line 16, for case, should be subjected to the investigation of a'" there were two,” read “there never was."
HOUSE OF LORDS.
to consider whether the objection was properly O'BRIEN U. THE QUEEN, M.MANUS V. THE QUEEN.
urged by plea.
The right of the plaintiffs in error to be furnished Held. That the commission being directed, first to with the
copy of the indictment and the lists referred three judges by name, and, subsequently to the to, has been endeavoured to be sustained by the same judges and others therein mentioned, was
counsel for the plaintiffs in error at the bar upon not thereby rendered ambiguous.
two grounds: first, upon the ground that the statute That the plaintiff in error was not entitled to a copy of the 36 Geo. 3, c. 7 extended to Ireland; secondly,
of the indictment, or a list of the witnesses, or of or that, if that statute did not originally extend to the jury ten days before the trial, because the 36 Ireland, it was afterwards so extended by the opeGeo. 3, c. 7, did not extend to Ireland, nor was ration of the 57th Geo. 3, c. 6, and by the 11 & 12 it extended by 57 Geo. 3, c. 6, nor by 11 & 12 Vic. c. 12. Vic. c. 12.
The Judges are of opinion that neither of these That those acts which were treason in England by grounds can be supported.
the statute of Edw. 3, were made treason in Ire The statute of the 36 Geo. 3, passed before the land, if committed there.
Union, aud did not bind Ireland ; and, therefore, That the allocutus, ante p. 170, was in the proper
if it has any application to Ireland, it must be by i form.
the effect of 57 Geo. 3, or 11 and 12 Vic. The errors in this case were the same as those
The 1st section of 36 Geo. 3, c. 7, enacted, that assigned in the court below, and reported ante certain acts during the life of his Majesty, Geo. 3,
of Sir Fitzroy Kelly, Q. C, Mr. Napier, Q. C., treason ; and the 1st section of the 57 Geo. 3, c.6,
after a demise of the Crown, should be deemed Sir Colman O'Loghlen, for Mr. Smith O'Brien.
Mr. Segur, Mr. O Callaghan, and Mr. M Mahon made these provisions perpetual, but did not exfor Mr. M.Manus.
tend the operation of the statute of the 36 Geo. 3 The Attorney-general for England, the Attorney
to Ireland. general for Ireland, Mr. Welsby, and Mr. Peacock
The 4th section of 57 Geo. 3, cap. 6, has been for the Crown.
principally relied upon, which expressly gives the The case was argued by Sir F. Kelly, Mr. Napier, benefit of the 7 and 8 W. 3, and the 7 Anne, cap. Mr. Segur, and Mr. O'Callaghan for the plaintiff's 21, to persons accused of any treason made or dein error; at the conclusion of their arguments, which clared by that act of the 57 Geo. 3; and it is were similar to those used in the court below, and enough to say that the charge in the sixth count is reported ante p. 171. The counsel for the Crown not for any treason made or declared by that were not called on, the learned judges having inti
statute. mated their opinion, that their decision was formed,
With regard to the statute of the 11 and 12 Vic., and which was delivered by the Chief Justice of the the only effect of that statute was to extend to IreCommon Pleas.
land certain of the provisions of the 36 Geo. S, Wilde, C. J.-I am authorized by the learned made perpetual by the 57 Geo. 3, and the 4th sec. judges to report their unanimous opinion that the of the 57 Geo. 3, which has been relied upon, is errors assigned have not been maintained by the limited to treason, made or declared by that act ; arguments urged at your Lordships' bar.
and the treason which is the subject of the sixth count As to the first objection, the judges are of opinion was not one of them, and to which, therefore, it that the allegation upon the record that the three
does not apply. judges who executed the commission in relation to
As to the objection, that the counts charging the trials of the several plaintiffs in error, were nomi- the levying of war in Ireland do not charge au nated and appointed to execute that commission, is offence which in point of law amounts to treason, an affirmative allegation of their authority to per- this objection depends upon the construction of the form that duty, and that it is in no respect rendered statute of Henry 7, passing by the name of uncertain or ambiguous by the subsequent statement Poyning's Law. that the conmission by which they were so autho
By that statute, we think that those acts which rized nominated and appointed, was directed to them were treason in England by the statute of Edward and others.
3, were made treason in Ireland, if coinmitted The second objection involves two points: first, there; and we cannot deem it necessary to say whether the plaintiffs in error in respect of the sixth more upon the subject, than that the terms of the count of the indictment were entitled to have a copy
statute admit of no doubt. of the indictment, a list of the witnesses, and a list
As to the objection to the allocutus, we think it of the jury ten days before the trial under the pro
is in the proper form. visions of the statute of Wm. 3, and the statute of
All that the prisoner in that stage of the proAnde. Secondly, whether, if they were so entitled, ceedings can properly be asked, is, what has he to the objection founded upon the non-compliance with say why judgment should not be pronounced; and the provisions of these statutes was matter properly
as to precedents which go further, we deem the urged by plea.
matter beyond the question stated, to be surplusage. The judges are of opinion that the plaintiffs in The only remaining error assigned refers to the error were not entitled to have delivered to them the challenge of the jury. That error has not been list and copies referred to in the error assigned in urged at your Lordships' bar, and we think it was that respect, and therefore it becomes unnecessary very properly abandoned, as the questiou is not
open to any doubt, the language of the statute of LORD CHANCELLOR.I think it desirable to 9 Geo. 4 being clear and unambiguous.
save further expense. Be it so. The Judges have not thought it necessary to trouble your Lordships with a more detailed statement of their reasons for the opinions they enter
ROLLS COURT. tain, as the general assignments of error have been
GARDINER v. BLESSINTON. so fully, and ably, and satisfactorily discussed by the
BYRNE, Petitioner, GARDINER, Respondent learned Judges of the Court of Queen's Bench in
April 17 & 19.
Receiver-Petition-Allowance for maintenance. The Lord Chancellor, Lord Lyndhurst, Lord The Court refused to appoint a Receiver
, on the Brougham and Lord Campbell severally expressed
petition of a judgment cu editor, over an allo. their entire concurrence in the opinion of the Judges, ance directed by the Court to be paid to the in and affirmed accordingly the judgment of the court heritor for maintenance. below.
By order bearing date the 26th day of June, 1834, and made in the cause of Gardiner v. Blessintom, it
was ordered that the sum of £600 per annum COURT OF CHANCERY.
should be allowed to the plaintiff, C. J. Gardiner, BANKRUPTCY.-May, 23.
for his maintenance, and that same should be paid Ex parte Dickson, in re VOGAN. by the receiver over the lands in the Co. Tyrone,
and be in addition to the use of the house at Mortgage Practice.
Mountjoy Forest, and the part of the demesse Where the mortgaged premises were clearly insuffi- then in the occupation of the plaintiff.
cient for payment of the debt, on the assignees That part of the house and demesne having been submitting, they were ordered to convey the equity subsequently sold, pursuant to the deeree in the of redemption to the mortgagee, in consideration cause, on the 19th of July, 1847, an order was of a release from the debt.
made, that an allowance of £700 per annum, to The Commissioner, by memorandum of the 4th of commence from the 1st of January then past
, be February, 1849, had adjudged that the petitioner, made to the said C. J. Gardiner for his support Benjamin Dickson, bad a good security by equi- and maintenance, out of the rents of the Tyrone table mortgage on the estates of the bankrupt, for estates, in lieu of the mansion house and that part the sum of £5089 158. The petitioner went into of the demesne of Mountjoy Forest hitherto in his possession of the mortgaged premises.
possession, and lately sold under the decree in the By memorandum of the 17th of January, 1849, cause. the Commissioner ascertained to be due, on foot of In Easter Term, 1848, the petitioner, Lawrence the mortgage, up to the 1st of November, 1848, Byrne, obtained a judgment against the said C. J. £6521 78. 6d. By memorandum of the 26th of Gardiner, for the sum of £132 7s. 9d. January, 1849, the Commissioner directed the On the 16th of June, 1848, a writ of fi. fa. assignee to inquire and state upon affidavit the issued on said judgment, directed to the sheriff' of nature and value of the mortgaged premises, and Tyrone, and a return of nulla bona was made what sum the saine would be likely to realize, if thereto. Byrne then presented a petition for a sold by auction, and whether sufficient for pay- receiver over this sum of £700 per annum, and Inent of the said sum of £6521 7s.6d.
having obtained the usual notice order, that are The valne was estimated at £3310. The yearly ceiver would be appointed, unless cause shewn, profit fell short of the interest money, and judg. within ten days. ment in ejectment for non-payment of rent due Mr. Rolleston, Q. C. vow shewed cause, and before the petitioner went into possession had been contended that this allowance was not such an obtained against two of the lots composing the annuity or rent-charge as was contemplated by the mortgaged premises. The premises had been sheriff's act, or 3 & 4 Vic. cap. 105, and the Court offered for sale by the bankrupt, but no bidders had no authority to appoint a receiver over it. offered, though the interest was then more valu. Mr. Hughes, Q. C. and Mr. H. Smythe, able. The mortgagee had incurred considerable contra, cited Rochard v. Fulton, (7 I. E. R. 131:) costs in proving his claims.
Dillon v. Plasket, (2 Bli. N. S. 241 ;) Evans v. Mr. Armstrong, Q.C., for the mortgagee, the Blennerhasset, (1 I. E. R. 115; Reilly on Repetitioner, moved that Bernard Mooney, the as. ceivers, page 125, 2 P. W. 211;) Harris v. Dusignee, might be ordered to join as a party to, and vison, (15 Šim. 128.) execute a conveyance of, the equity of redemption Mr. Ryan, in reply, contended, that ever if of the mortgaged premises, in consideration of the this allowance came within the terms of the statute, value thereof, and of the petitioner releasing the the petitioner was not entitled to the benefit of the assignee and the estate of the bankrupt. "This 3 & 4 Vic. c. 105, as the judgment was entered in application is in order to avoid further costs, the Easter Term, 1848, within a year. Smith v. Hurst, mortgagee having already incurred a considerable (1 Coll. 705;) Cassidy v. Hopkins
, (10 I. E. R. 208.) amount.
MASTER OF THE ROLLS. I do not think that Mr. Creighton, for the assignees, submitted to this sum which the receiver was directed to pay act as the Court should direct, in order to avoid Mr. Gardiner, is an annuity or rent-charge within further costs.
the meaning of the acts of Parliament—the Sheriff's
act, or the 3 & 4 Vic. c. 105. The Court fre EQUITY EXCHEQUER.-SITTINGS AFTER quently makes an allowance to an inheritor for his
HILARY TERM. support, although there may not be a surplus, and
LEVINGE v. DE MONTMORENCY. I am not bound
to treat that as liable to be ex. Practice—Staying proceedings-Costs of parties tended at law by an elegit ; nor does this case come within that part of the 21st section, which
in stayed cause-Loftie v. Forbes (2 I. Eq. Rep. provides that the Court may appoint a receiver
443,) considered Tangney v. Holmes, Ir.
Jur. 78, 125, 163,) dissented from. over property which could be made available by filing a bill. The Court of Exchequer gave a Where a creditor's suit, instituted in the Court of strict construction to the act of 5 & 6 W. 4, c.
Chancery, has been stayed by reason of a prior 55, and considered, that where a legal impediment decree to account obtained in this Court, in a existed to the issuing of an elegit, such as an out cause of a similar frame and between the same standing term, a receiver ought not to be appointed, parties, and the plaintiff in the stayed cause had and such an application was refused, where the paid the costs of one of the defendants, the Court respondent held only an equity of redemption.
will not order the receiver in the first cause to This Court gave a more liberal construction, and pay the plaintiff in the stayed cause the amount was in the habit of appointing receivers in cases of the costs so paid, to the prejudice of prior where only a temporary bar existed, which could incumbrancers. be removed by filing a bill in aid of the execution In such a case, the plaintiff in the stayed cause is at law; and this part of the 21st section was personally liable to the costs of prior incumenacted to get rid of the difference of opinion, and brancers, if the fund proves deficient, and puisne put an end to the questions on which the Courts creditors are only entitled to their costs in the differed. But I do not think it was intended to same priority as their respective demands, but give jurisdiction by petition, in every case in which
this Court will restrain the defendants from proa bill might be filed. In this case the petitioner ceeding against the plaintiff in the stayed cause has mistaken bis remedy, for the petition should for their custs therein, until the fund is realised. have been entitled in the cause in which the Re- The Courts of Chancery and Exchequer exercise a ceiver has been appointed, and prayed that he concurrent jurisdiction, and the rule as to the might be extended to his demand.
enforcement of costs under staying orders is the “ No rule on said petition, without preju
same, whether the suits are instituted in the same dice to the petitioner amending his petition,
or different Courts of Equity. if he shall be so advised, and entitling same This was an application made under the following in the cause in which the receiver has been circumstances :-On the 22nd of January, 1848, appointed, and applying for the extension of the usual decree was pronounced in this cause, the receiver to this matter; and let the re- which was a foreclosure suit, and the usual accounts spondent have £5 for his costs of appearing directed to be taken. Eyre and Morrogh, two of on this motion, and let same be set off against the defendants in the Exchequer cause, had, subthe petitioner's demand."
sequently to the institution of the suit in the ExR. P. A. B., lib. 28, fo. 320. chequer, but before the decree to account,viz.,
on the 26th of May, 1847, filed a bill of foreclosure LAWLER v. LOWRY.--May, 10.
in the Court of Chancery against De Montmorency
and others. Several of the defendants in the latter Practice-Continuing Proceedings under the Sheriff''s Act.
cause had appeared and answered. By an order
of the 3rd of June, 1848, the Court of Exchequer Where a notice pursuant to the first order under restrained Messrs. Eyre and Morrogh, the plaintiffs
the 154th General Order has been served, and in the Chancery cause, from proceeding, on the before the second order has been made, the Court usual terms, that they should be at liberty to come cannot continue the proceedings under the in and prove their demand in the Exchequer cause, Sheriff's Act.
together with their costs necessarily incurred in the The petitioner, Lawler, had served a notice on the Chancery cause, with the costs of the motion, and respondent, Maria Lowry, and on James Scott the costs of such of the defendants in the said Chan. Molloy, her provisional assignee, the respondent cery cause as were properly made parties thereto, in being an insolvent. Maria Lowry had filed affi- the priority of the defendants' demands respectively. davits to shew cause against the appointment of a By an order of the Master of the Rolls, bearing receiver, but died before cause shewn. All her date the 1st of December, 1848, it was referred to next of kin were in Ainerica, and she had no per- the Master to tax the costs of the plaintiffs and sonal representative.
defendants in the Chancery cause.
Messrs. Eyre Mr. Lawson, Q.C., moved to continue the pro- and Morrogh subsequently paid over the sum of ceedings against James Scott Molloy, the provi- £18 2s. 5d., being the ascertained costs of E. c. sional assignee, and against the tenants of the Tuthill, a defendant iu both causes. The present lands, under the 5 & 6 W. 4, c.55.
motion was made on behalf of Messrs. Eyre, and MASTER OF THE Rolls.--I have no power, Morrogh, the plaintiffs in the stayed cause, that when there was no receiver appointed to continue the receiver in the Exchequer cause should be di. the proceedings. I must, therefore, refuse this rected to pay over to them the said sum of motion. I cannot continue proceedings that never £18 128. 5d., and likewise pay the several defend. existed. You must serve a scire facias on the ants in the stayed cause their respective ascertained tenants,
costs in the said conse; or that the restraining
order might be varied, and that the several de- of the original mortgagor. If the latter were alive, fendants in the stayed cause might
be restrained he could
only have his costs out of the surplus fond. from proceeding against the plaintiffs in that cause
Mr. J. B. Murphy contended against the claim for their respective costs, and that it might be of Mr. O'Donnell's client, and relied on Pepper v. stated specifically by whom and in what manner Foster, (10 Ir. Eq. Rep. 352 ;) Rutherford v. and priority, and out of what funds the costs of the Cottenham, (8 Ir. Eq. Rep. 391 ; Daniel's Ch. Pr
. defendants in the stayed cause should be paid. vol. 2, 1297.
Mr. J. B. Murphy, in support of the applica PENNEFATHER, B.- This is a case of considerable tion. The liability of the plaintiffs in a stayed importance as regards the practice of this court, and cause was lately discussed before the Master
of the the more so because it affects the Court of Chancery Rolls and the Chancellor, in the case of Tangney as having a concurrent jurisdiction. The present v. Holmes, (Ir. Jur. pp. 78, 125, 163. In p. 126, question arises on an order made in this court, dated the Lord Chancellor observes, that “the proper June, 3, 1848, restraining the plaintiff in the Court way to consider this petition is to look at the posi- of Chancery from proceeding with the suit instituted tion of the defendant, whose costs are in question, in that court, and was made on the ground that proand what would have been his rights as to those ceeding there was unnecessary, a decree in this court costs, if the stayed cause had come to a hearing. having been pronounced under which all rights could It is plain that the order would have been that be adjudicated on. That order was obtained at the these costs should be paid by the plaintiff, who instance of the plaintiffs here, and it would would have them over against the fund, or the as if they considered the funds were insufficient. lt plaintiff, being entitled to redeem the defendant is an order made for the protection of the funds and and failing to do so, he would have been bound to property, made at the instance of the creditor inte. pay these costs without having them over.” Again-rested in their preservation, and only made when * I do not look upon this order as simply a staying the funds are likely to be insufficient, and therefore order, but substantially a decree in the stayed we cannot act as if this fund was sufficient to answer cause.” Here there are different classes of de- the demands of all parties. It is an application highly fendants ; first, creditors, who are necessary par- beneficial to all persons interested, and avoids fur. ties ; secondly, formal parties. Some of the cre- ther expense as soon as a decree is obtained in either ditors may be prior, others puisne, to the plaintiff. court to answer all the purposes of the suitor. ProThe latter are only entitled to get their costs in the vision was made for costs which it will be necessary same priority as their demand, so that it would be to vary in some respects according to the principles an injustice to the plaintiff in the stayed cause to the court will presently advert to. The present make him personally liable. If the order were motion is, that the costs to which the plaintiff in the varied, by introducing the words “ that the de-Chancery cause is liable should be paid in the first fendants in the stayed cause shall get their costs in instance by the receiver out of the funds collected the same priority as their demands,” all difficulty by the receiver, or that the defendants in the Chanwould be renioved.
cery cause be restrained from taking proceedings Mr. Vincent Scully, on same side, relied on against the plaintiff in the stayed cause
, on their Jackson v. Curtis, (2 Moll. 463, ibid. 466 ;) demand for costs against him. In justice it would Croker v. Copley, (ibid. 469 ;) Crofts v. Poe, ( appear that the plaintiff in the Chancery cause, who Ir. Eq. Rep. 151,) where Pennefather, B., lays is restrained from proceeding there by the order of down the rule—“ The costs are given against this court, is entitled substantially to relief in one or the plaintiff, as an ultimate security to the party, other of the shapes in which he seeks it. In Loftie but are not to be enforced against him, unless it v. Forbes, it was stated, from the MSS. of the late appears that there are no funds in the cause appli- Sir Michael O’Loghlen, that where both suits were cable to their payment, or that the plaintiff is instituted in the Court of Chancery, the defenguilty of laches in prosecuting the suit. This is dants in a stayed suit would be prevented from levy. the spirit of the order we ask for, that the defending their costs against the plaintiff
, because the court ants in the stayed suit be restrained froin proceed having restrained him it would be unjust to allow ing against us until the fund proves deficient. Hall the defendants to proceed against him. In the prov. Hill, (5 I. Eq. R. 11,) is to the same effect. priety of that observation I fully concur; but, with Mr. Bennett, Q.C. for a prior mortgage cre- great respect to the judges of the Court of Chancery
, ditor.–There is no prospect of the fund being suffi- I would extend a similar rule to an order made by cient; therefore, to order the receiver to pay over the Court of Exchequer. In a matter of this nature these costs, would be to make my client, having the courts have a co-ordinate jurisdiction, and it the first claim on the fund, provide for puisne in ought to be the object of both courts to discourage cumbrances. In Crofts v. Poe, a final decree was litigation. It would appear from the MSS. read to pronounced, and in Loftie v. Forbes there was no us that it does not signify in what court the order is suggestion of a deficient fund.
made, and the same principles are applicable to both Mr. Sausse, Q.C., for another incumbrancer. courts. I feel bound to say so much, approving of Mr. M. O'Donnell for W. De Montmorency, a what fell from Sir M. O'Loghlen, and, as a neces
. formal defendant, being executor of the testator, sary consequence, of the equitable jurisdiction, and who devised the lands charged to the principal de- if I was now adjudicating on this matter in the Court fendant. There was only a portion of the incum- of Chancery I would hold myself bound to prevent brancés created by the testator, so that we are en- the defendants from dismissing the bill. I have said titled to costs as against the plaintiffs in the stayed this from the necessity of observing on the general cause. [Richards, B.--He stands in the position question, where the two equity courts are acting in