the facts, this is identically the same case with that now before me. Here the defendants are said to have induced the plaintiff to proceed with his preparations and to incur expense. Whether the case I have referred to was mentioned to the Vice-Chancellor or not, I do not know, but, if mentioned, it must have assisted him in deciding that no equity was raised by this bill. | The Vice-Chancellor does not mention the case, but says that here there is no equity. Then there is an allegation of a trust; but the plaintiff is bound to state how the trust arises, for the Court is to carry the trust out, and is not, therefore, to be left in the dark on the subject. As the Court is to act on the trust, the plaintiff must shew on what facts the trust arises, and that the facts are such that the Court will act upon them. But the case does not stop here, for the plaintiff has shewn that there can be no trust. There is no one but the Company; the money they have must be the money of the Company; and who, then, are they trustees for? The plaintiff was only connected with the Company from being, as he states, induced to believe that they had entered into a binding contract with him. You must take the allegations of the bill according to the facts stated, and here the allegation is nothing more than the plaintiff's conclusion from the facts he states. The Vice-Chancellor was of opinion that there was an infinitesimally small quantity of equity. I am of opinion that that small quantity is wholly evanescent. The demurrer must be allowed.

ROLLS COURT.

REG.. PROSSER.-Nov. 8 and 24. Motion to stay Proceedings on Sci. Fa. to repeal Patent. A Writ of Sci. Fa. to repeal Letters-patent having been issued by the Authority of the Attorney-General at the Instance of an Alien-Held, on Application to the Court to stay Proceedings thereon, (after a similar Application to the Attorney-General had failed), on the Ground that the Prosecutor of the Writ was an Alien, and that the Security for Costs was insufficient, and on other special Grounds, that the Court had no jurisdiction to interfere, but that the Control of the Proceedings rested entirely with the Attorney-General. Semble, an Alien may prosecute a Writ of Sci. Fa. to recall Letters-patent.

This was an application, on the common law side of the Court, to stay proceedings on a writ of scire facias issued by the authority of the Attorney-General to repeal certain letters-patent. The writ was issued at the instance of a Mr. Irving Van Wart, who was an American by birth, and carried on business in New York, but was temporarily resident in England. It appeared that the defendant, Prosser, had obtained a patent in England for improvements in the machinery by which iron tubes were manufactured, and one Cutler had also obtained a patent in England for improvements in the tubes themselves. They subsequently took out, in partnership, a patent in Scotland, combining both the English patents. Some differences subsequently arose between them, and the partnership was dissolved. The writ of scire facias was, after this event, issued at the instance of Van Wart, to repeal Prosser's English patent. An application had been made to the AttorneyGeneral to enter a nolle prosequi, or stay proceedings on the writ, but he had declined to do so; and, in consequence of such refusal, the defendant, Prosser, made the present application. The grounds urged in support of the application were: first, that the prosecutor was an alien; secondly, that he had not sufficient interest to support the application; thirdly, that he was acting from improper motives; fourthly, that the security which he had given for costs was insufficient. A question also arose and was much discussed, whether the

Court had jurisdiction to interfere, and the case of Reg. v. Nielson (Webster's Pat. Cas. 672) was cited and relied upon in support of the jurisdiction.

M. D. Hill and Hindmarsh were counsel for the defendant.

Turner, contra.-The prosecutor is not strictly an alien; his father was naturalised by act of Parliament, and the effect of that was to naturalise the son. (Co. Litt. 129. a.) But, even if he were an alien, that would not prevent him from becoming a prosecutor in a case like this. As an alien he had a right to trade; and, as a consequence, he had a right to all actions and privileges incident to trade, and necessary to the enjoyment of his rights. (Chapple v. Purday, 2 Mee. & W. 303; Bassana v. Lawson, 5 Bing. N. C. 90; Beard v. Egerton, 3 C. B. Rep. 97). As to want of interest, it is unnecessary that he should have any. But, in fact, he has a sufficient interest. Interest in the individual is not necessary. It is the interest of the public that requires a bad patent to be repealed. But a foreigner has an interest in setting aside such a patent; he has a right to trade in this country, and an interest in getting rid of any obstacle which interferes with that right. It is immaterial whether the patent affects the immediate trade carried on by the party or not. He may at some future period wish to carry on that trade. As to the allegation that the action was carried on by collusion with Cutler, and was not, in fact, the proceeding of the prosecutor, but of other parties, to stop certain proceedings instituted by the defendant in Scotland in respect to the partnership which he had carried on there, no ground was shewn for it, and the Court would not look to the motives of parties instituting proceedings to get rid of an illegal monopoly, or prevent an illegal act. (Coleman v. The Eastern Counties Railway Company, 10 Beav. 1; Morgan v. Seward, Webs. 197). But here, in fact, the proceedings in question were commenced after the writ was issued.

Webster, with Turner, contended, that an alien had a right to prosecute the writ: there was no analogy between this case and those cited on the other side, as to writs of habeas corpus and quo warranto. In those cases the party actually injured must apply, but in a sci. fa. a party who might be injured might apply. An alien could have a patent; and it would be strange if he had not the power to give the Crown the necessary information to repeal one. In the old form of the writ, it was not necessary to state the prosecutor's name: that was a modern practice. As to the insufficiency of the security for costs, if the prosecutor left the country, or the security became insufficient, the Attorney-General would, on an application to him for that purpose, stay proceedings until fresh security was given. The Attorney-General had the sole conduct and control of the proceedings, and the Court could not interfere.

Nov. 24.-Lord LANGDALE, M. R.-In this case a writ of scire facias to repeal certain letters-patent, granted to Richard Prosser, was issued under the fiat of the Attorney-General, in the usual course. The patentee applied to the Attorney-General first of all to obtain from him a direction that all further proceedings in the action should be stayed, or that a nolle prosequi should be entered. The application to the Attorney-General was not successful, and, in consequence thereof, the patentee applies to this Court for an order that the proceedings in the action may be stayed; and, in support of this application, he offers the same reasons which were addressed to the Attorney-General to induce him either to stay the proceedings or to enter a nolle prosequi. The reasons alleged are to the effect, first, that the prosecutor, as he is called, (being the person at whose instance the Attorney-General authorised the writ to be issued, and who is permitted to prosecute the action), is an alien; secondly, that he has no special interest in the patent, or in the repeal of it, but that he

HALFORD. STAINS.-Jan. 20.

Thellusson Act-Accumulations-Portions. A Testator devised his Real Estates to Trustees, upon Trust, during the Life of his Niece, E. S., to keep the Premises in Repair, insure, &c., and (in an Event which did not happen, to pay an Annuity to E. S. for her Life) to accumulate the Surplus, and invest in the Purchase of other Real Estates, to be settled to the same Uses, or to invest the Accumulations in the Funds; upon the Death of E. S., the Estates (original and accumulated) to go to the First and other Sons of E. S. in Tail Male, with Remainders over. His Personal Estate he gave to other Trustees, with like Directions to accumulate, in the Way of compound Interest, during the Life of E. S.; then to go to her Children, Share and Share alike, with Gifts over in default of Children. At the Death of the Testator, J. S. was his Heir-atLaw, but he died shortly after, intestate as to his Real Estate, leaving said E. S. his Heiress-at-Law. Twenty-one Years having now expired-Held, first, that E. S. was entitled to be let into Possession of the devised Real Estates. Secondly, that the Heiress-at-Law, and not the Executor of J. S., was entitled, for her Life, to the Income arising from the Accumulations of the Rents and Profits of the Real Estates.

Thirdly, that, by the Use of the Words "Portion," "Portion or Share," in the Advancement Clause, in reference to the Power given to the Trustees to advance any of the Children who should have a vested Interest in the Accumulations, this Case was not brought within the Exception in the 2nd Section of the Thellusson Act. William Stains, of Canterbury, by his will, dated 16th November, 1824, gave and devised all his manors and estates therein particularly mentioned, and all other his manors, messuages, lands, tenements, hereditaments, and real estates, not thereinafter otherwise by him well and effectually given and devised, unto Richard Halford and John Furley, and their heirs, upon trust that they, or the survivor of them, or his heirs, should, during the term of the natural life of his, the said testator's, niece, E. Stains, receive and take the rents, issues, and profits of the said estates and premises, and should thereout, in the first place, keep the same in good and tenantable repair, and also keep the buildings thereon well and sufficiently insured from loss or damage by fire; and, in the next place, in an event which did not happen, pay unto his said niece, Elizabeth Stains, one annuity or clear yearly sum of 2007., for her own use and benefit, for the term of her natural life, upon trust that the said trustees or trustee for the time being should, during the term of the natural life of his said niece, Elizabeth Stains, at their or his discretion, lay out and invest the residue of the said rents, issues, and profits, or any part or parts thereof, after making the several payments and deductions as aforesaid, in the purchase of freehold manors, messuages, lands, tenements, or hereditaments, free from incumbrances, (except fee farm and quit rents), to be situate in the county of Kent, to be settled to such and the same ends, intents, and purposes, &c., as were in and by the said testator's will devised, limited, and declared of and concerning his aforesaid manors, &c., or as near thereto as the deaths of parties and other contingencies would admit of. And upon further trust, that they and he should, at their or his discretion, as to such part or parts of the said net residue as should not be laid out and invested in such purchase or purchases as aforesaid, and also in the meantime, and until such purchase or purchases should be made as aforesaid, as to the whole of the said net residue of the said rents, issues, and profits, lay out and invest the same, in their or his own names or name, in the purchase of stocks in some or one of the public

interest, of and in England, and should alter, vary, and transpose the same stocks, funds, and securities from time to time, at their or his discretion, and should receive the dividends, interest, and annual proceeds of the said stocks, funds, and securities, and lay out and invest the same, in their or his own name or names, in or upon other stocks, funds, or securities of a similar description, so that the same, and all the resulting income and produce thereof, might accumulate in the way of compound interest; and from and immediately after the decease of his said niece, then upon trust that his said trustees or trustee for the time being should stand and be possessed and interested of and in all and every the said stocks, funds, and securities so directed to be purchased and accumulated, upon and for the trusts, intents, and purposes thereinafter expressed and declared of and concerning the residuary personal estate of which the same should be and be deemed part. And from and after the decease of his said niece, the said testator directed that his said trustees or trustee for the time being should stand seised of all and singular the said estates and premises therein before devised as aforesaid. Then came limitations to the use of the first and other sons of the body of Elizabeth Stains in tail male, and, for default of such issue, to the daughters of the first and other sons of Elizabeth Stains, as tenants in common in tail general-the daughters of an elder son to be preferred; in default of such issue, to Edwin Stains for life, remainder to his first and other sons in tail male, &c., with ultimate remainder to the use of the testator's own right heirs for ever. And the testator, after making divers pecuniary and specific bequests, gave and bequeathed all and every his stocks, funds, &c., and also the stocks, funds, and securities therein before directed to be purchased and accumulated, and all the residue of his personal estate, (subject to the payment of his debts and legacies), unto John Buckton and Thomas Bourne, their executors, administrators, and assigns, upon trust that they, the said John Buckton and Thomas Bourne, or the survivor of them, his executors or administrators, should, with all convenient speed after his decease, make sale and absolutely dispose of all such part or parts thereof as should not consist of stocks, funds, monies, mortgages, and securities for money, and should collect, get in, and receive all such part and parts thereof as should consist of monies or securities for money, and should, at their or his discretion, lay out and invest the same monies to arise and be produced by such sale or sales, and to be collected, got in, and received as aforesaid, or any part or parts thereof, in their or his own names or name, in the purchase of freehold manors, messuages, lands, tenements, or hereditaments, free from incumbrances, (except fee farm and quit rents), to be situate, lying, and being in the county of Kent, and which the said testator directed to be forthwith settled, conveyed, and assured to such and the same uses, and upon such and the same trusts, as were thereinafter by him declared of and concerning such part or parts of his said net monies as should not be by his said trustees or trustee, their or his executors or administrators, laid out and invested in such purchase or purchases as aforesaid, or as near thereto as the deaths of parties and other contingencies would admit of; and upon further trust, that they or he should, at their or his discretion, as to such part or parts of the said net residue as should not be laid out and invested in such purchase or purchases as aforesaid, and also in the meantime, and until such purchase or purchases should be made as aforesaid, as to the whole of the said net monies, lay out and invest the same in their or his own names or name, in the purchase of stock, in some or one of the public funds, or upon other Govern ment or real securities, at interest, of and in England, and should alter, vary, and transpose the same stocks,

funds, and securities, from time to time, at their or his discretion, for or in other stocks, funds, or securities, of the like nature, and should receive the dividends, interest, and annual proceeds of the said stocks, funds, and securities, and again lay out and invest the same in manner aforesaid, so that the same and all the resulting income and produce thereof might accumulate, in the way of compound interest, for and during the term of the natural life of his said niece; and from and immediately after her decease, then upon trust that his said trustees or trustee for the time being should assign, or transfer, or make over all and every the said stocks, funds, securities, and accumulations, unto the child, if only one; and if more than one, between and amongst all and every the children, but exclusive of an elder or only son (such only son not being an only child) of his said niece, equally to be divided between them, if more than one, share and share alike, as tenants in common, and to be vested in sons at twenty-one, and in daughters at twenty-one or marriage. The will then contained further limitations of the personal estate, upon default of issue of Elizabeth Stains, to said Edwin Stains and his children, &c., with an ultimate limitation for the person or persons who would have been entitled under the Statute of Distributions, in case the testator had died intestate. And the testator, by his will, also provided, that it should be lawful for the said trustees or trustee for the time being, at any time after the decease of his said niece, to apply all or any part of the dividends, interest, and income arising from the portion of each, any, or either of the said children and issue, being minors, of and in the said stocks, funds, and securities, during the minority of such children and issue, for or towards their maintenance, education, clothing, or advancement, in such manner as his said trustees or trustee for the time being should think fit; and also to advance and pay to and for each, any, or either of such children and issue, notwithstanding his, her, or their minority, any part not exceeding one-half of the then vested or expectant share of any such children or issue of and in the said stocks, funds, and securities, either for placing out any such children or issue, being a male, to any profession, business, or employment, or otherwise for the advancement or preferment in the world, or in marrying any such children being either male or female; and that all sums which should be advanced to or for each of such children or issue respectively as aforesaid should be taken and considered as a part of his or her said portion or share respectively, and should be deducted and allowed out of the same, notwithstanding his or her death respectively before his or her portion should be absolutely vested in him or her. He appointed John Buckton and Thomas Bourne executors of his will. The suit was instituted by the trustees of the real estate, to have the trusts properly carried out. By a decree made therein in the year 1842, a reference was directed to the Master to make certain inquiries; the Master, by his separate report, found, that the testator died 24th September, 1827, leaving his brother, James Stains, since deceased, his only brother and heir-at-law, and heir according to the custom of gavelkind, (of which tenure the devised estates were); that James Stains died in the year 1828 intestate as to the real estates, which vested in him as heir-at-law of the testator, leaving said Elizabeth Stains, his only child and heiress-at-law, and according to the custom, him surviving; and that she was then the representative in respect of the hereditaments, which were expressed to be devised by the will of the testator. It appeared, that, after the testator's death, the trustees of the real estate entered into possession or receipt of the rents and profits, and out of the accumulations purchased certain lands, which were conveyed to them, according to the directions of the will; and that they had since accumulated the rents and profits of the real

estate; and that, on the 24th September, 1848, there were of such accumulations, 38431. 78. 2d., 31. per Cent. Bank Annuities, and 16207. 9s., Reduced Bank Annuities, which the trustees had brought into court. Elizabeth Stains now presented her petition in the cause, stating to the above effect, and that the period of twenty-one years, computed from the day of the death of the testator, ended on the 24th September, 1848; and she submitted, that the trust for accumulation contained in the testator's will was good and effectual for such period of twenty-one years, and no longer; and that from such period she, as such heiress, became entitled to the rents and profits of the said devised and purchased estates, and to be let into possession or receipt of the rents and profits thereof as from the 24th September, 1848, and also to receive the dividends and interest arising from the past accumulations of the surplus rents and profits subsequently to 24th September, 1848; and prayed that she might be let into the possession or receipt of the rents and profits of the said real estates accordingly; and that the sum of 237. 12s. cash, which had arisen from the dividend upon the said 16207. 9s. Reduced Bank Annuities, which fell due on the 10th October, 1848, might be ordered to be paid to her; and that all the future interest and dividends which should arise from the said 38431. 7s. 2d., 31. per Cent. Bank Annuities, and 16207. 98. Reduced Bank Annuities, might be ordered to be from time to time paid to her during her life.

James Parker and Lloyd, for the petitioner.-The petitioner is entitled for her life to the rents, issues, profits, and produce of the real estate from the expiration of the twenty-one years after the death of the testator. The 1st section of the Thellusson Act, (39 & 40 Geo. 3, c. 98), directs, that, "in every case where any accumulation shall be directed otherwise than as aforesaid, such directions shall be null and void, and the rents, issues, profits, and produce of such property so directed to be accumulated shall, so long as the same shall be directed to be accumulated contrary to the provisions of this act, go to, and be received by, such person or persons as would have been entitled thereto if such accumulation had not been directed." We further contend, that the petitioner is also entitled to the fruits of the accumulations from the real estates, as being part of the produce of the real estates; and we submit, that there is to be no apportionment in respect of the last half-year's rent, the trustees having necessarily received already twentyone-years' rent, the testator having died 24th September, 1827.

Bethell and Goodeve, for Edwin Stains, the first tenant for life under the will.

Kenyon, for one of the trustees of the personal estate. There is one question which the trustees consider necessary to be decided on this will, namely, whether this direction for accumulation is not within the exception in the 2nd section of the Thellusson Act in favour of accumulations for portions. The 2nd section says, that nothing in the act shall extend "to any provision for raising portions for any child or children of any grantor, settlor, or devisor, or any child or children of any person taking any interest under such conveyance, settlement, or devise." [He then read the different parts of the will in which the word "portion" or "portions" occurred, and contended, that this case was within the above exception.]

VICE-CHANCELLOR.-The question seems to be, whether a mere gift as a general legacy is within the 2nd section of the act. I do not think these are portions within the meaning of the exception; but the testator has put his own meaning on the word, and he explains it to mean 66 part or share." Parker, on this point, mentioned the case of Shaw v. Rhodes, (1 Russ. 135).

Chandless, for the executor of James Stains.-I sub