Wood, and Underwood, and the Lessee covenanted to manage the demised Premises in a husbandlike Manner. The Lessee having permitted Goats to be upon the Land, the Lessor filed his Bill for an Injunction, and obtained one on an interlocutory Application. The Lessee did not move to dissolve, and, on the Cause coming on for hearing, the Court made an Order that the Bill be retained for Twelve Months, with Liberty to the Lessor to bring an Action; and if the same were not brought within that Time, the Bill to be dismissed, with Costs, not exceeding a stated Sum; and the Injunction to be continued in the mean Time.

66

The bill stated, that, by indenture of lease, dated the 29th July, 1835, Evan Jones, of &c., clerk, demised to Thomas Thomas, of &c., tiler, his executors, administrators, and assigns, all that messuage, tenement, lands, and premises called Craig Galva, otherwise Craig Alfa, and all quarries of paving and tile stones in and upon the said premises, situate &c., in the county of Glamorgan, together with full and free liberty, power, and authority to open, dig, and search for, and by all lawful ways and means whatever to work, raise, and get up, the paving and tile stones thereby demised; except and always reserved out of the said demise, unto the said Evan Jones, his heirs and assigns, all manner of timber trees, trees likely to become timber, saplings, and all wood and underwood whatsoever, which then were, or at any time thereafter during the said term thereby demised should be, standing, growing, and being on the said demised premises, or any part thereof," and all mines and minerals, &c.; to hold the same for the term of ninety-nine years, at the yearly rent of 167. for the messuage, and 2d. for every yard of paving-stone, and 3d. for every thousand of tile stones: and the said Thomas Thomas, for himself, his heirs, executors, and administrators, covenanted that he, his executors, administrators, and assigns, should not nor would commit, or cause to be committed, any waste, spoil, or destruction on the said demised premises, or any part thereof, by cutting down, lopping, or topping any timber trees, or trees likely to become timber, saplings, or any other wood or underwood; and also should and would, during the said term, use, treat, and manage all and every the lands, fields, and premises thereby demised in a proper and husbandlike manner in all respects whatsoever. The bill then set out the plaintiff's title to the feesimple through the lessor, and an allegation of the defendant's title to the lease by assignment from the lessee, (which was denied by the answer): that the plaintiff had brought an action of ejectment for breach of covenant, when a verdict was given for the plaintiff, with leave to enter a nonsuit on a question of right to destroy the trees: that the premises comprise a certain wood or plantation of considerable extent, called Craig Alfa Wood, and contains divers timber trees, and trees likely to become timber, and also much underwood and many saplings: that the defendant kept a great number of goats, and had given orders to turn them all, on the 25th July, 1848, into Craig Alfa Wood; and upon being told by the plaintiff's solicitor, that, if he persisted in so doing, he would take steps to prevent it, the defendant laughed, and said, "There was a pretty dish to stir." Then followed a statement of a correspondence between the solicitors of the parties, and an allegation that the defendant had turned the goats into the wood: that the plaintiff had made divers applications to the defendant to remove them, but he neglected to do so, and they were doing great waste, spoil, and injury to the young trees, underwood, and saplings thereon growing. It was then charged that Craig Alfa Wood or plantation was of considerable extent, and contained great numbers of young trees of ten years' growth or thereabouts, and great numbers of saplings, and a large quantity of wood and underwood, all which were likely to be of great future value, if duly tended and preserved; and

bite,

that it was the nature and habit of goats to gnaw, and destroy the bark of young trees, saplings, and shoots, and thereby materially to damage the same, and impede, check, or interfere with the growth and management thereof; and that the said goats had done such damage in Craig Alfa Wood or plantation: that the admission of the goats was an unhusbandlike and improper manner of using, treating, and managing the said demised premises, and that the defendant had thereby committed or permitted great spoliation, destruction, and waste in, upon, and against the young trees, and trees likely to become timber, saplings, wood, and underwood, so excepted from the said demise as aforesaid: that such acts were wilfully and vindictively intended to damage and injure the plaintiff, and his estate and interest in the premises: that the defendant threatened and intended to lead, drive, and admit horses, cows, bullocks, sheep, and other noxious cattle and animals into the said wood or plantation, which would be injurious to the same, and the trees, saplings, and underwood growing therein; and that he ought to be restrained from suffering and permitting the said goats, or any of them, or any goats or goat of the said defendant, or any other cattle noxious to the said trees, underwood, and saplings, to enter and remain within the limits of the said Craig Alfa Wood or plantation, or to have any access, or further access, whatsoever to any of the trees likely to become timber, saplings, or any wood or underwood standing, growing, or being in the same wood or plantation, or on the said demised premises, or any part thereof, during the said term. And the bill then prayed an injunction against the defendant accordingly. The defendant, by his answer, after making a statement as to the title to the residue of the term, and shewing that he had only an interest in the quarry, part of the property, for a stated period, and that the action was brought against him and another, when leave was given to enter a nonsuit, if the Court of Common Pleas should be of opinion in favour of the defendants on either of these points-first, that, to maintain the right of entry for forfeiture by breach of covenant, the plaintiff must prove the breach of more than one covenant; secondly, that the demise of the quarry gave a right to remove such underwood as was necessary for working it, it being agreed that what was done was necessary for working it, and that nothing but underwood had been removed; thirdly, that waste could not be committed in respect of underwood, which was not demised by the lease-denied that the premises demised comprised the said wood, but said that they consisted of about thirty acres of land, on about twenty acres of which, part of a steep and rocky hill, were scattered patches of underwood, of about twelve years' growth, not planted, but growing spontaneously, consisting of hazel trees, holly trees, briars, and brushwood, all of very small value, and not likely ever to become of any considerable value, and covering about ten acres of land. He said, that before 1847 there were timber trees, saplings, and trees likely to become timber, but the same, with the exception of one tree likely to become timber, were cut down by order of the plaintiff himself in that year: that there was but one tree likely to become timber, which was about five inches in diameter, and no plantation or saplings, nor any wood or underwood: that he had many goats: that he had no recollection of using the expression spoken of in the bill. He denied that he turned his goats into the said alleged wood, but admitted that he turned them into the demised premises, but, in obedience to an order made in the suit, he had withdrawn them: he denied that the goats had done any damage, waste, or spoil: he denied the existence of Craig Alfa Wood or plantation, or any other plantation or wood, save as aforesaid; but said that such underwood as did exist would, at the end of thirteen years, if duly tended and preserved, be worth about 51. an

bark of trees.

Wigram and Prendergast, for the plaintiff.-The plaintiff is entitled to have the injunction made perpetual. The defendant has not come to have the injunction procured against him set aside. As regards the covenant against waste, no doubt the lessee is not entitled to injure the wood, and the same rule applies to the assignee. The mischievous nature of goats is so well known as to be proverbial; and besides all modern opinions, those of the ancients shew what is considered to be the baneful effects of their being permitted among herbage, as may be seen in the Georgics of Virgil. The title of a reversioner to restrain a breach of covenant is proved by the case of Shadwell v. Hutchinson, (2 B. & Adol. 97). [They also cited Berry v. Hurd (Cro. Car. 242) and Courthorpe v. Maplesden, (10 Ves. 290).]

Russell, for the defendant.-The trees only are excepted. The lessee is entitled to the herbage of the land; and if the plaintiff be right in what he contends for, the defendant will be totally deprived of this undoubted right. The balance of evidence is enough to shew that what the defendant is doing is no more than what is the customary course of husbandry in the country. Having made a reservation for his own benefit, if he wants to secure that benefit, the plaintiff must take the means of having it, and must so fence the lands that what he deems to be injurious may not happen. If he thinks the goats do damage, (which, in fact, they do not, but, on the contrary, do good), it is his business to protect the trees, and not try and throw that burthen upon the tenant. If fencing of the land is needful, the plaintiff himself is the person to do it, and

not the defendant.

F. Bayley, on the same side.-The plaintiff has not stated a case which, if proved, would entitle him to relief; or, if he has stated such a case, he has not proved it. This Court will not interfere on behalf of a lessor to restrain a lessee from doing any act which is not either a breach of covenant, waste, or trespass in the nature of waste. By breach of covenant is to be understood covenants either express or implied; and by trespass in the nature of waste is meant an act which in its nature is waste, but which, for some technical reason, would not support an action of waste: for instance, if the lessee cut down trees which are included in the demise, that is waste; but if they are excepted out of the demise, it is not waste, but trespass. (Dyer, 19 a, pl. 106; Goodright v. Vivian, 8 East, 190). The lease in this case contains express covenants only; all implied covenants are excluded.

The covenants by the lessee are, first, that he will not commit any waste, spoil, or destruction on the demised premises, by cutting down, lopping, or topping any timber trees, or trees likely to become timber, or any other wood or underwood; and also that he will use, treat, and manage the lands, fields, and premises hereby demised in a proper and husbandlike manner. The first covenant, therefore, is not a covenant against waste generally, but against particular species of waste only, namely, cutting down, lopping, and topping: and it is not even alleged that the defendant has done any of those acts. The second is a covenant to treat the demised premises in a proper and husbandlike manner; and the complaint is, that the defendant has used the trees and underwood in an improper and unhusbandlike manner; but, as trees and underwood are no part of the demised premises, there is no breach of this covenant. But even supposing the covenant to be to treat the premises demised, and those excepted out of the demise, in a proper and husbandlike manner, then I contend that the acts alleged against the defendant do not constitute a breach of such a covenant, because nothing is unhusbandlike management at common law which does not amount to waste, as laid down by Parke, J., in Phillips v. Smith, (14 Mee. & W. 589). There is no allegation of any special custom of the country, and there is only one young tree likely to become timber. There can be no waste in respect of underwood, unless it amount to destruction; (Co. Litt. 53. a.); "there is waste, spoil, and destruction," &c. If a tenant cut down timber trees, that is waste; and if he suffer young germins to be destroyed, that is destruction. (Ib.) So if a tenant cut down underwood, (as he may do at law); yet if he suffer young germins to be destroyed, this is destruction. (Ib.) In Bro. Abr., tit. "Waste," 112, per Nedham, J., it is said, "Pulling up subboys ou thornes per le roote est waste, et de germinibus et de stocking up tout ceo doit etre specialment declare que le spring ne poet cress et destroyer le spring:" citing Year Book, 5 Edw. 4, 100. That is also in Long Quinto, 102, Michaelmas Term, 6 Edw. 4, thus:"Et en meme cel plee, per Nedham, J., fuit mre que en reising up by the roots de subbois ou thornes, ceo est wast: et ceo covient estre specialmt declar-et issint des germins scil. rotes d'arbres en stocking de eux, que le spring ne poit cresser, ou a suffrer le close estre overt et nemy par ceo closer per que avers entrent et destruent le spring ceo est especial wast aussi." Here the allegation is, that goats will materially damage young trees, saplings, and shoots, and will impede, check, or interfere with the growth and management thereof; but there is no allegation of destruction, nor anything like it. The proposition, that a lessee of land, which contains unin closed wood or underwood, is bound to protect such wood or underwood from his cattle, is not entirely new, but it is wholly unsupported by authority. Fitzherbert's Nat. Brev. 59, note (e), cites Year Books 11 Hen. 6, 1, and 22 Hen. 6, 12, where it is said that waste was assigned in permitting wood to be uninclosed; but in 11 Hen. 6, 1, it appears that wood was inclosed, and the defendant left the fence open, per quod the cattle entered, (pl. 3); and see Fitz. Abr., " Waste," 42. In the Year Book 22 Hen. 6, 12, waste was assigned in cutting down one hundred oaks, and also waste on the stocks of some oaks; the objection was, that waste was assigned twice in the same thing; and per Cur., “it is double waste;" for if the spring which was growing on stocks of the oaks had been safely guarded, they would grow to oaks. It is stated thus:-" Ceux sout divs wastes, car si le spring qui fuit cressant sur les stockes de les querks avoit este saufment gardes ils voil. cress. a's querks aderer." Abr., "Waste," 46; Bro. Abr.," Waste," 91; and the The same point is stated in Fitz. same law is laid down in Fitz. Nat. Brev. 50, 51. This, however, is distinguishable, because the original act of

cutting down the trees was unlawful: it was owing to the unlawful act of the tenant that there were any germins that required protection. What is said by Needham, J., (Long Quinto, 102), before cited, and the case of Clithero v. Higgs, (Jones, 388), are the only authorities, and they tend to negative any implied obligation on the part of a lessee to protect wood or underwood from his own cattle. I submit, therefore, that the bill ought to be dismissed.

Wigram, in reply.

KNIGHT BRUCE, V. C.-This case has been argued by Mr. Bayley with an industry and learning worthy of a case of greater pecuniary value. I am not at all satisfied that this suit ought ever to have been instituted. The defendant may take his choice, whether he will have the injunction against him dissolved, and the bill dismissed without costs, or have the injunction continued against him till further order, the bill being retained for a year, with liberty for the plaintiff to bring such action as he may be advised.

June 6.-On this day the following order was made:The bill to be retained for twelve months, with liberty for the plaintiff to bring an action; if the action be not brought within that time, dismiss the bill, with costs not exceeding 407.; the injunction to be continued in the mean time.

HUMPHREY V. GEARY.-June 21.

Practice-Costs-Case sent to Law. Where, by a Decree made on the hearing, a Case was directed for the Opinion of a Court of Law, and the general Costs of the Suit were given; upon the Cause coming on upon the Equity reserved-Held, that the Costs of the Case were included in the general Costs of the Suit, without any specific mention of those Costs being made in the Decree.

By the original decree made at the hearing of this cause, a case was directed for the opinion of a court of law, and the costs of the suit were given generally, no mention being specifically made of the costs of the case at law.

KNIGHT BRUCE, V. C.-In this case a question was argued by Mr. Bacon and Mr. Glasse, whether, under the term "the general costs of the suit," the costs of a case sent to a court of law are to be considered as included, there being no specific mention made of them in the decree, nor any order made respecting them. I have consulted the officers of the court, and I have received answers from many of them. If I were at liberty to decide now upon the merits of the case-which I am not-I should hold that the costs of a case at law ought to be given to the person who has the general costs of the suit. I am not at liberty to do this. The clerks of records and writs, whom I have consulted, wish not to answer the question, on the ground that they are not practically acquainted with the taxation of costs. I have not, therefore, the benefit of their opinion. The clerks in court, however, or rather the officers who were formerly so called, namely, Mr. Horne, Mr. Milne, Mr. Smith, Mr. Wainewright, Mr. Jackson, Mr. Baines, and Mr. Mills, certify to me that such costs, if not specifically mentioned, are not considered as costs in the cause, and are therefore disallowed. Mr. Munro, one of the Registrars, has sent me a separate certificate, in which he states that he had examined many decrees, and had only found one case on the point, and that was at the Rolls in 1819, (Shaw v. Towers), in which the costs of a case were ordered to be taxed separately. Then I have the certificate of seven of the Registrars, namely, Mr. Collis, Mr. Walker, Mr. Davis, Mr. Bicknell, Mr. Bedwell, Mr. Hussey, and Mr. Wood, who say that they have made an extensive search, and have not been able to find any order in which the costs of a case sent to law have been considered separately, and they are unanimously of opinion, that, according to the practice

of the Court, such costs are always considered to be included in the term "costs of the suit." In this state of opinion among the officers of the court, I think that, as the seven Registrars whom I have named have come to the conclusion they have, I am justified in acting on my own opinion of what is proper, and I therefore decide, that the costs of the case ought to be considered as part of the costs of the suit, without being specifically mentioned. The order will be, that the costs of this case are to be included in the costs of the cause; but no order need be drawn up; communication of my opinion to the Taxing Master will be sufficient. No costs of this application.

VICE-CHANCELLOR WIGRAM'S COURT. DOBSON V. LAND.-March 19, 20, and 28. Practice-Evidence- Suppression of DepositionsExamination.

An Examination of Witnesses having taken place before the Commissioner, in a Foreclosure Suit, as to the Condition of the mortgaged Premises since the Mortgagee had been in Possession, and it being sworn by the Commissioner and his Clerk, and not contradicted, that the Depositions had been read and explained to, and also signed by, the Witnesses, the Court refused to order the Depositions to be suppressed, upon the Grounds of Partiality and Misconduct in the Commissioner, which were denied by him and his Clerk, on Oath; but allowed the Witnesses to be examined and cross-examined viva Voce, before the Master, as to those Parts of their Depositions the Accuracy of which was disputed. The bill in this case was filed by the mortgagees, for the purpose of obtaining the usual decree for foreclosure, against the representatives of the mortgagor. A decree had been made directing a reference to be taken in the Master's office as to the account, and also an inquiry as to the parties who had been in possession of the mortgaged premises since 1826, and whether the property had become deteriorated while the mortgagees were in possession. Witnesses were accordingly examined before the commissioner upon these points.

The Solicitor-General and Batten, for the defendants, now moved to suppress the depositions, upon the grounds of partiality and misconduct in the commissioner. The affidavits of two of the witnesses stated, that the evidence of one witness had been communicated by the commissioner to the other witness; that questions, which formed no part of the interrogatories, had been put to the witnesses; and that the depositions, as given out, did not truly represent the answers which had been given by them. In support of the motion the following cases were cited:-Cooke v. Wilson, (4 Madd. 380); Cootle v. Jackson, (6 Ves. 12); Campbell v. Scougall, (19 Ves. 552); Richardson v. Fisher, (1 Bing. 145); Lord Mostyn v. Spencer, (6 Beav. 135); and Wood v. Freeman, (4 Hare, 552; 9 Jur. 549).

Kenyon Parker and Shee, against the motion.-The witnesses, having, as was sworn by the commissioner and his clerk, had their depositions carefully read over, and particularly explained to them, and they having signed the same, were precluded from impeaching their accuracy. [They cited Whitelock v. Baker, (13 Ves. 511).] The commissioner, as was his duty, has not divested himself of his discretion, in admitting only what was legal evidence relevant to the point at issue between the parties.

The Solicitor-General, in reply, said the affidavits of the commissioner and of the defendants' witnesses were directly opposed to each other; and submitted, that it was contrary to the practice, under such circumstances, to allow the depositions to be used in evidence.

Sir JAMES WIGRAM, V. C., said he could not accede to the motion, so far as it sought to suppress the whole of the depositions; but thought it was desirable, that,

as to particular parts of them, an examination should take place before another commissioner. He should examine the evidence very carefully on both sides before deciding the motion.

March 28.-Sir JAMES WIGRAM, V. C., gave judgment. The amended notice of motion, by mistake, asked that the depositions, taken by virtue of the commission which had been issued in the cause, might be suppressed, with costs, on the ground of irregularity. Upon the motion, it was suggested that the commissioner himself, whose supposed misconduct had made it necessary, ought to be the party to pay those costs. The difficulty in that respect was obviated by the defendants' counsel waiving any claim of costs against the commissioner, and the motion then proceeded. The plaintiffs were mortgagees. The defendants were owners of the equity of redemption. The usual decree in a suit for redemption has been made, and proceedings taken before the Master. The grounds of the application were founded upon the affidavits of two witnesses - who had been examined under the commission. One of the witnesses swore that she did not say what the deposition attributed to her-that certain sums, therein mentioned, had been expended with the privity, assent, and concurrence of the several persons entitled to the equity of redemption of the mortgaged premises. Now, orders for the re-examination of a witness have been made, after publication, upon a point alleged to have been incorrectly taken down at the examination, as in the case of Cass v. Cass, (4 Hare, 278; 9 Jur. 272). The defendants contend that I must, in this case, from the conduct of the commissioner, as evidenced by the affidavits, infer partiality on his part in favour of the plaintiffs. It seems to me that I must reject all the charges of partiality, which the commissioner has positively denied by his affidavit, and which denial is corroborated by his clerk, their affidavits being altogether uncontradicted by the defendants. As to the charge of partiality, I am bound to reject it; and as to misconduct, I am also bound to reject it, unless it is a necessary inference from the evidence. Now, such an inference I am not prepared to draw. I have great difficulty in understanding why I should believe the affidavits of the witnesses, whose depositions are sought to be suppressed, rather than that of the commissioner, which is confirmed by his clerk, who swears that the depositions were taken down correctly. The commissioner swears that he never knew or spoke to any of the parties in these suits until the witnesses were examined before him; and that he never conversed with the solicitors for the parties, or either of them, until they met him. If this is true, in spirit as well as in letter, it wholly takes away all ground for the motion by reason of partiality. Another point relied upon was, that the commissioner had improperly disclosed to one of the witnesses the evidence of a previous witness. This was explained by a statement, that he had referred to former evidence to correct a date. I cannot think that a ground for suppressing all the depositions. Another point was this-it was said that a question had been put to one of the witnesses, which question was not to be found in the interrogatories: the inference, it was said, was irresistible that the commissioner had been prompted. This, however, is not only an unnecessary, but a most strained, inference. The subject-matter of the inquiry related to the state of the repairs of a warehouse and a cottage. The witness spoke to the repairs of both. The fair inference is, that the witness, having spoken of two species of property, was afterwards applied to, in order to ascertain whether his answer applied to both, or to one only. I cannot, upon this, infer anything unfavourable to the impartiality of the examiner. I agree that too much care cannot be taken to protect suitors against the partiality of examiners, but I could not do worse than

criminate a commissioner, who had acted as in this case, by suppressing the whole of the depositions upon the case now before me. As to the costs, I shall have an opportunity of stating what is to be done with them on the hearing of the cause, unless the parties agree that the affidavits on both sides be taken before the Master to decide on their materiality, so that the Court may judge of the actual position of the parties. If I am to enter upon the examination, I must consider whether the plaintiffs are not entitled to the benefit of the fact, if it be a fact, that both the witnesses did depose as the depositions represent. And that may raise the question, whether the plaintiffs are also entitled to shew what witnesses did, on a former occasion, give different evidence from what is now proposed to be given. If the parties will consent that these affidavits shall go before the Master as evidence, it will obviate every difficulty, and enable both the Master and myself to consider which of them is material. If not, I must make a special order confining the re-examination and cross-examination to the two witnesses upon whose affidavits the motion is founded, and to the disputed part of their depositions. I do not think I could possi bly avoid giving the plaintiffs leave to examine Mr. Bond and Mr. Hooper (the commissioner and his clerk) without prejudice to the right of cross-examination. That is the order I must make, unless the parties consent to go before the Master.

THE COURT ultimately made the following_order:"The plaintiffs not asking to examine Mr. Bond and Mr. Hooper, the defendants to be at liberty to examine, vivâ voce, Mary Land and W. Winter (the two witnesses who had made affidavits on the motion) upon interrogatories upon the points in their answers to which they, in their affidavits, have spoken. The costs of the motion to be reserved."

COURT OF QUEEN'S BENCH.-TRINITY TERM.

DoE d. CLAY and Others v. JONES.-May 22. In 1838, M. H. mortgaged Premises for 1000 Years to D., and in 1839 conveyed the Fee for 181., subject to the Mortgage Term, to her Daughter, the Wife of De fendant; this Conveyance was unknown to the Parties to the subsequent Deeds. In 1842, M. H. mortgaged the Premises in Fee to M., and in October, 1844, conveyed the Equity of Redemption to C., the Lessor of the Plaintiff. In October, 1844, M. assigned the Mortgage of the Fee to R. T., and the Representatives of D. assigned the Term of 1000 Years to J. T., as Trustee, "to secure the Mortgage money to, and afterwards to be re-conveyed as C. should direct." In September, 1847, Part of the Premises being required for a Railway, C, received the Purchase-money from the Company, and therewith paid off the Mortgagees:-Held, that the Term had not become attendant upon the Inheritance by Construction of Law, so as to be determined by Sect. 2 of Stat. 8 & 9 Vict. c. 112; and therefore C. was entitled to recover upon the Demise of J. T. Quare, whether Defendant could maintain that the Term was satisfied?

Ejectment, on the several demises of John Clay, Meredith Humphreys, Richard Thompson, and John Thompson, to recover possession of a messuage and premises in the parish of Wrexham, in the county of Denbigh. On the trial, before Erle, J., at the Denbigh shire Spring Assizes in 1848, it appeared that the action was brought by the lessor of the plaintiff, John Clay, against the defendant Jones, his brother-in-law. In 1838, Mary Humphreys, widow, was seised in fee of the premises in question, and by indenture of mortgage, dated the 1st June, 1838, between the said Mary lumphreys of the first part; Meredith Humphreys, Caroline Humphreys, spinster, (now the wife of the defendant Jones), John Clay, and Mary his wife, ( which

said Meredith Humphreys, Caroline Humphreys, and Mary Clay were the three children of Mary Humphreys, by her husband Meredith Humphreys, deceased), of the second part; and Edward Davies of the third part, the premises in question were demised to Edward Davies for the term of 1000 years, for securing the repayment of 607. and interest. By indenture, dated the 1st June, 1842, between the said Mary Humphreys of the first part, John Humphreys (eldest son and heir apparent of Mary Humphreys) of the second part, Nathaniel Minshall of the third part, and the said Edward Davies of the fourth part, the said premises were conveyed, subject to the mortgage for 60%, to Nathaniel Minshall and his heirs, upon trust to sell, and after payment to Edward Davies of the sum of 607., and of a further sum of 407., upon trust for Mary Humphreys, with a proviso for redemption. By indenture, dated the 1st October, 1844, between the said Mary Humphreys of the first part, the said John Humphreys of the second part, and the said John Clay of the third part, in consideration of 187., the equity of redemption in the said premises was conveyed by Mary Humphreys and John Humphreys to John Clay, one of the lessors of the plaintiff, subject to the payment of the said principal sum of 1007. due and owing to the said Edward Davies, with a proviso, that, upon payment of the said sum of 1007., with interest, to the executors of Edward Davies, it should be lawful for Nathaniel Minshall and the executors of Edward Davies to convey all their estate and interest in the premises to John Clay, or as he should direct. Edward Davies died in October, 1843, and in December, 1844, his executors called upon John Clay to pay the sums of 60l. and 40%. By indenture, dated the 21st December, 1844, between the said Nathaniel Minshall of the first part, the said John Clay and Meredith Humphreys of the second part, Richard Thompson of the third part, Samuel Roberts and William Jones (the executors of Edward Davies) of the fourth part, and John Thompson of the fifth part, reciting, among other things, that, by articles of agreement, dated the 1st October then last past, John Clay had agreed with Meredith Humphreys that he (the said Meredith Humphreys) should be entitled to an undivided moiety of the premises on payment by him of a moiety of the principal sum of 100l. and interest, and a moiety of the sums of 187. and 187. 3s. 4d.; and that, on payment by Meredith Humphreys of a moiety of the said several sums within six months from the date thereof to John Clay, he, the said John Clay, and all other persons having an interest in the said premises, should convey to Meredith Humphreys a moiety of the said premises; and further reciting, that payment of the said sums agreed to be paid by Meredith Humphreys to John Clay had not been made, and that the undivided moiety of the premises had not been conveyed to Meredith Humphreys: it was witnessed, that, in pursuance of the said recited agreement, and in consideration of the sums of 60l. and 401., making together 1007., by the direction of John Clay and Meredith Humphreys paid to Samuel Roberts and William Jones by John Thompson, and in consideration of the sums of 18. and 187. 38. 4d. to John Clay, at the request of Meredith Humphreys paid by John Thompson, and in consideration of the further sum of 231.168. 8d. to Meredith Humphreys and John Clay, paid by John Thompthe payment of which said several sums of 60%., 407., 3s. 4d., and 237. 16s. 8d., making together the sum of 10%., John Clay and Meredith Humphreys thereby acknowledged, Samuel Roberts and William Jones, as such executors, by the direction of John Clay and Meredith Humphreys, assigned the said premises, for the residue of the term of 1000 years, to John Thompson, with a proviso, that, if the said John Clay and Meredith Humphreys should pay to John Thompson the sum of 1607., with interest, on the

son,

.361.

21st June then next, the said John Thompson would assign the premises for the remainder of the term of 1000 years, as the said John Clay and Meredith Humphreys should direct or appoint; and for further assurance, it was witnessed, that Nathaniel Minshall released, and John Clay and Meredith Humphreys confirmed, the said premises in fee to Richard Thompson, in trust for sale. The defendant had no notice of the deeds of the 25th and 26th October, 1839, until some time after he had completed the purchase of the equity of redemption. In September, 1847, the principal and interest due to John Thompson, under the last-mentioned deed, was paid by John Clay and Meredith Humphreys out of money arising from the sale of part of the property to the Shrewsbury and Chester Railway Company, but no re-conveyance of the property had been made to John Clay and Meredith Humphreys, or either of them. It further appeared, that, in 1839, Mary Humphreys, by indentures of lease and release, dated the 25th and 26th October, 1839, between the said Mary Humphreys of the one part, and Caroline Humphreys of the other part, in consideration of 187., conveyed the premises in question, subject to the term of 1000 years, to her daughter Caroline, in fee. About December, 1839, the defendant married the daughter of Mary Humphreys. It was contended, for the defendant, that the term of 1000 years attended the inheritance by intendment of law, and that the term was satisfied by the operation of sect. 2 of stat. 8 & 9 Vict. c. 112. The jury found that the deeds of the 25th and 26th October, 1839, were a bonâ fide conveyance; and, under the direction of the learned judge, a verdict was entered for the lessor of the plaintiff, leave being reserved to move to enter a verdict for the defendant. In the following Easter Term, (April 19),

Townsend moved for a rule nisi accordingly, and cited Doe d. Cadwalader v. Price (16 Mee. & W. 603) and Doe d. Hall v. Moulsdale, (Id. 689, 699).

On a subsequent day, (May 4), the Court granted a rule nisi, against which, in last Easter Term*,

Welsby and Langford Foulkes shewed cause.-The lessor of the plaintiff, John Clay, is entitled to retain the verdict on the demise of John Thompson, the last mortgagee. The term of 1000 years is in John Thompson, as trustee for John Clay, by virtue of the proviso in the indenture of the 21st December, 1844-"That if the said John Clay and Meredith Humphreys should pay to John Thompson the sum of 1607., with interest, on the 2nd June then next, the said John Thompson would assign the premises for the remainder of the term of 1000 years as the said John Clay and Meredith Humphreys should direct or appoint." In Doe d. Cadwalader v. Price (16 Mee. & W. 603) and Doe d. Hall v. Moulsdale (Id. 699) the outstanding term was by express declaration assigned to attend the inheritance. If the term had not been dealt with for many years, it might be presumed that it had been surrendered; or if, under some circumstances, trustees ought to have conveyed the term, it would be presumed that they had done so; but such presumption cannot be made where there is, as in this case, an express declaration by the trustee. Again, if there had been no declaration as to this term, it would have become attendant upon the inheritance by construction of law, and would have ipso facto ceased and determined by operation of sect. 2 of stat. 8 & 9 Vict. c. 112; but expressum facit cessare tacitum. [They cited Sugd. Vend. and Pur., pp. 786, 789, 11th ed.] Further, there could not have been a merger of the term if it had been assigned to the lessor of the plaintiff, John Clay, because he was not entitled to the fee-simple. [Erle, J.-The railway company, who purchased part of the property from John Clay and Meredith Humphreys, thought they were

* April 17, before Patteson, Coleridge, and Erle, JJ. Lord Denman, C. J., was absent on account of illness.