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the side on which the three bars were was nearest to there was a public street at Liverpool, over the whole the wall. Complaints were on several occasions made of which, from fence to fence, the public had a right to the defendants about the danger of having the lid of way, subject to the existence of certain cellars. placed against the wall in this manner.

There was a footpath on one side, and on the other On the 12th of June, the plaintiffs (two children side no footpath; but the cellars alluded to made that about seven years of age) with others were playing side less commodious as a way than it otherwise would about the lid. They had been warned and desired to be; still the public had a right to pass there. The go away, but Hughes climbed up on to the lid and defendant was the occupier of a house and cellar then jumped off, causing it to fall on himself and on the side where there was no footpath. He took Abbott, from which they both received very serious the flap or cover of his cellar off, and placed it injuries. The street in which this occurred was a against the wall on the same side, nearly upright, public highway, but there was no foot pavement on so that it could be easily pulled over. It may be the side where the cellar and lid were.

admitted that if a person passing along the street The learned assessor nousuited the plaintiffs, with in the ordinary use of a right of way without any leave reserved to inove to set the nonsuit aside, and carelessness on his part, had, by his dress blowing have a new trial, if the Court should be of opinion that against it, pulled it over and sustained hurt thereby, there was evidence of negligence by the defendants. he might have maintained an action against the deA rule nisi was accordingly obtained.

fendant for a negligence or wrong in placing the flap

so that, without any negligence on the part of the 24 Nov. 1863.

plaintiff, it was likely to do, and had actually done, L. Temple, and Littler, now showed cause against damage to him. the rule.

In the first of these two cases, in which Hughes was The learned assessor's decision is correct. There plaintiff, the flap was pulled over by the plaintiff

, a was no evidence of negligence on the part of the defen- child of tender age, climbing up it and jumping from dants, and even if there were, the plaintiffs having it, and it fell upon him, hurting him very severely. themselves contributed to the accident by causing the Had he been an adult it is clear he could have mainlid to fall down, cannot recover, according to several tained no action for it; he would voluntarily have decisions.

meddled for no lawful purpose with that which, if (POLLOCK, C. B., referred to

left alone, would not have hurt him, and he would, Lynch v. Nurdin, 1 Q.B. 29].

therefore, have contributed by his own negligence to That case was doubted in

his own damage. We think the fact of the plaintiff Leggo v. Newbold, 9 Exch. 302; and in

being of tender years in this case makes no difference. Singleton v. Eastern Counties Railway Company, His touching the flap was for no lawful purpose ; and 7 C. B. (n. s.) 287.

if he could maintain the action as it is, he could There is also the decision in,

equally maintain an action if the lid had been placed Barnes v. Ward, 9 C. B. 392,

inside the defendant's premises; but within sight and as limited by

reach of the child. Hardcastle v. The South Yorkshire Railway Com

As far as the child's act is concerned, he had no pany, and River Dun Company, 4 H. & N. 67.

more right to touch the flap for the purpose for which McCulloch, and R. G. Williams, in support of the he did touch it, than he would have had it been rule.

inside the plaintiff's premises. Cases were referred to, Lynch v. Nurdin is precisely similar to the present supposed to be in favour of the plaintiff, but we think case, and should govern it. There are no grounds for

none are decisive of the present case, and no case the statement that it has been doubted. That deci- establishes a principle opposed to our view—which is, sion applies to the case of the plaintiff Hughes ; as to that the nonsuit was right, and ought not to be set

aside. Abbott's right to recover, there can be no doubt.

As to the other case, The defendants in the present case were guilty of

in which Abbott was plaintiff, negligence and carelessness in leaving the lid in such the case is different. He was playing with the rest of a position in a frequented public street, and are liable the boys, but the exact circumstances do not appear. for the consequences of that negligence,

If he was playing with Hughes, so as to be a joint Reg. v. Jones, 3 Camp. 229 ;

actor with him, we think he cannot maintain the Illidge v. Goodwin, 5 C. & P. 190 ;

action; but if not, we think he can, as the injuries

would then be the result of the joint negligence of Dixon v. Bell, 5 Mau. & Sel. 198.

Cur. adv. vult. Hughes and of the defendant. How this is does not

appear, and we think as to his case there ought to be 7 DEC. 1863.

a new trial, for the purpose of ascertaining the facts, POLLOCK, C.B., now delivered the judgment of the which are left in doubt. Court (Pollock, C.B., Bramwell and Pigott, BB.).

Rule discharged in Hughes's case. The facts may shortly be stated thus. It appears

Rule absolute in Abbott's case. VOL. III.

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a new trustee ; and the order of appointment should

EQUITY.
Lord Chancellor.
} Rc Borce.

15 & 16 Vict. c. 55, s. 9;
21, 25 Jan. 1864.

Ex parte Countess of Mornington, 4 D. M. & G. 537. Trustee Act, 1850, section 32-Lunatic Trustee 25 JAN. 1864. Devise by Implication.

THE LORD CHANCELLOR said that in his opinion the A testator appointed A B to be trustee of his will; and direction to Boyce to invest the surplus rents and after devising all his real estate to his wife for life, profits, after payment of the rent-charge

, was enough he directed his trustce, on the death of his wife

, to sell to give him an estate sufficient in point of quality to his real estate, with power to sell the same by public the widowhood he would take, therefore, a contingent

enable him to carry the direction into effect. During auction or private contract, &c., and with power to

estate

pur autre vie. On the death of the widos, execute all such instruments and assurances as might

Boyce was directed to sell the real estate, with power be necessary to carry out the sale:

Held, that, whether or not A B took any estate in the to select the mode of sale, and to execute all such really by implication, he was a trustee within the Trustee This was equivalent to a trust to sell and contes; and

assurances as were requisite to give effect to the sale. Act, 1850 ; and that, on his becoming lunatic, the Court his Lordship thought that, if the will had been er: had power, under the 32nd section, to appoint a new trustee in his place.

pressed in those words, Boyce would have taken the

remainder in fce in the real estate, expectant upon the This was a petition in lunacy, and in the matter of life estate of the widow. the Trustee Act, 1850, for the appointment of a new But even if Boyce had a mere power of sale, he trustee. The petition was heard before the Lords was, in the first place, appointed to the office of Justices ; but, in consequence of conflicting decisions trustee of the will ; secondly, he was peremptorily in previous cases, and of a doubt whether the case directed to sell on the death of the widow; and, before the Court was within the statute, their Lord- thirdly, he was empowered to carry the sale into ships, without any expression of opinion on their part, effect by the execution of all necessary assurances. requested that the matter might be brought before the The combination of these three particulars brought Lord Chancellor.

the case within the Trustee Act, and the Court had The testator, by his will, dated in 1851, appointed jurisdiction to appoint a new trustee in the place his wife and J. S. Boyce to be executors, and of Boyce. J. S. Boyce to be trustee of his will. He devised all But, further, if he had been appointed a simple his real estate to his wife and her assigns during her trustee, the case was within the statute, if the Court life, if she should so long continue his widow, but in thought proper to exercise its discretionary power. the event of her marrying again, he gave her a legal The testator contemplated the event of a new trustee rent-charge, with power of distress and entry, and being required, and created a power to provide for directed his trustee to invest the surplus of the that event, which, however, by reason of the lunacy, rents and profits of his real estate. On the death could not be exercised. It was, therefore, impraeof his wife, the testator directed his trustee to sell ticable to appoint a new trustee without the assistance the real estate, with power to sell by public auction or of the Court ; and as the estate could not otherwise be private contract, &c., and with power to execute all sold, it was expedient that a new trustee should be such instruments and assurances as might be necessary appointed. The case was met and provided for by the to carry out the sale. The will contained a power to 32nd section of the Act. appoint a new trustee, but in the events which hap His Lordship's power under the Trustee Act in cases pened, it had become incapable of being exercised. of lunatic trustees (section 3) was limited to making a

The testator's wife survived him, did not marry vesting order. He should decide the present case, not again, and was now dead. The trustee, J. S. Boyce, on the ground that Boyce took an estate by implicahad become lunatic.

tion, but on the ground that the case was within the The questions were, whether Boyce took any estate 32nd section of the Act. He would, therefore, appoint under the will by!implication ; and if not, whether he, as the donee of a power of sale without any legal estate be drawn up both in Lunacy and in Chancery. was a trustee within the meaning of the Trustee Acts.

Note. -See Cory, for the petitioner.

Re Dawson's Trusts, Re Broome, post, 397. 13 & 14 Vict. c. 60, s. 32 ;

.

}

23 JAN. 1864. Lords Justices.

Re Dawson's TRUST Busk, this day, informed their Lordships that their 18 Dec. 1863, Re BROOME.

suggestion had been adopted, and that proposed 15, 23 Jan. 1864.

minutes had been approved of by counsel on behalf of

the Bank of England. Trustee Act, 1850, ss. 32, 35Trustee Extension Act, s. 6– Invalid Trustee.

THEIR LORDSHIPS, thereupon, approved of such

minutes. Where a trustee, from ill-health, was unequal to the exertion of signing the necessary papers for effecting a

Minute. — The approved minutes, as far as material, transfer into Court of a sum of stock, the Court appointed were as follows :-It appearing that William Broome new trustecs of such sum of stock, they undertaking, and Dalton Dalton are jointly entitled to the within a given time, to transfer such sum of stock into 21, 2441. 14s. 8.l. Bank 31. per cent. Annuities standthe name, and with the privity, of the Accountant- ing in their names as survivors in a joint account of General of this Court, pursuant to the provisions of Bank of England, upon trust as in the petition men

the said John Grimshaw, deceased, in the books of the the Trustee Relief Act.

tioned, and the said William Broome and Dalton This was a petition for the appointment of new Dalton by their counsel appearing and desiring to be trustees under the trusts of the will and codicils of discharged from the said trusts, and it appearing to one Thomas Dawson, in the room of John Grimshaw, the satisfaction of the Court that it is expedient to William Broome, and Dalton Dalton. It appeared appoint new trustees of the said, &c., in the place of on the hearing that John Grimshaw was dead, William the said John Grimshaw, William Broome, and Dalton Broome was a person of infirm health, and Dalton Dalton, and that it is impracticable so to do without Dalton was desirous of retiring from the trusts. the assistance of this Court, and that the petitioner

The petition had been intituled both in Chancery Thomas Dawson is beneficially interested in the said and in Lunacy.

sum of 11,0821. Is. 3d. Bank 31. per cent. Annuities,

and Robert Steele, Edward Browne, an«l Hugh Wild, Busk, for the petitioners, proposed that Robert in the petition respectively named, by their counsel Steele, Edward Browne, and Hugh Wild should be appointed trustees of two legacies of 10,0001. each transfer into their names of the 21, 2441. 14s. 8d. Bank

appearing, and undertaking within one month after the in the petition mentioned, and of the sum of | 31. per cent. Annuities in the petition mentioned, and 11,0821. 98. 3d. Bank 31. per cent. Annuities, part of a the payment thereout of the costs of the said petition, sum of 21, 2441. 143. 8d. like Annuities, also in the to transfer into the name and with the privity of the petition mentioned, in the place of John Grimshaw, Accountant-General of the Court, pursuant to the proWilliam Broome, and Dalton Dalton.

visions of the Trustee Relief Act, so much of the Kinglon, on behalf of certain parties interested in 11,0821. Is. 3d. like Annuities, part thereof as shall the 11,0821. 98. 31. Bank 31. per cent. Annuities, remain after payment of the share hereinafter directed objected to the trustees named. They desired that to be paid thereout of the said costs, and after deductinstead of new trustees being appointed in respect to ing the costs of the transfer to be so made by them. that sum, that that sum might be transferred into Let Robert Steele, Edward Browne, and Hugh Wild, Court. This difficulty, however, had arisen, William

in the petition named, be appointed trustees of the Brooine was a person of infirm health and unequal two legacies of 10,0001. each in the petition mentioned, to the exertion of signing the necessary papers for and of the appropriated fund or sum of 11,0821. 95. 3d. the transfer. Neither the Trustee Act, 1850 (13 & Bank 31. per cent. Annuities also in the petition men. 14 Vict. c. 60), nor the Trustee Extension Act (15 tioned, in the place of the said John Grimshaw, & 16 Vict. c. 55), met the difficulty.

William Broome, and Dalton Dalton. And let the

right to call for a transfer of and to transfer the W. B. Collman, for Dalton Dalton, the retiring 21,2441. 148. 8d. Bank 31. per cent. Annuities standing trustee.

in the names of the said William Broome and Dalton Humphrey, for William Broome.

Dalton, as survivors on a joint account with the said

John Grimshaw, in the books of the Bank of England, Their LORSDHIPS suggested that the proposed trus- by the description of, &c., and to receive the dividends tees should be appointed trustees of the whole fund or income of the said Bank 31. per cent. Annuities re. of 21, 2441. 14s. 8d. Bank 31. per cent. Annuities, under spectively, vest in the said Robert Steele, Edward the Trustee Act, 1850, on an undertaking by them to Browne, and Hugh Wild. And let the said Robert transfer into Court the sum of 11,0821. 9s. 30. like Steele, Edward Browne, and Hugh Wild transfer into Annuities within a month from the date of their their own names the said sum of 21,2441. 148. 8d. appointment, and desired counsel to communicate Bank 31. per cent. Annuities. And let the sum of with the solicitors of the Bank of England as to 10,1621. 58. 5d. Bank 31. per cent. Annuities, part of the form of order.

the said sum of 21,2441. 14s. 8d. like Annuities, when

transferred and vested as aforesaid, and the dividends reason of the death of Harriet Rackham, a daught=1 and interest thereof, be held by the said Robert Steele, , of the testator in the cause, without issue in his lifeEdward Browne, and Hugh Wild, their heirs, exe- time, one-sixth share of his residuary estate hal cutors, and administrators respectively, upon the lapsed. trusts of the said will of the said testator Thomas The question turned upon the construction of the Dawson subsisting or capable of taking effect, and will, which is sufficiently stated in the former report. relating to the two legacies of 10,0001. each, but subject | Harriet Rackham died unmarried in the testator's to the payment of the proper portion of the costs and lifetime some years after the will was made. expenses hereinafter mentioned. And let the said the plaintiff was the eldest son of the testator, and 11,0821. 9s. 3d. Bank 31. per cent. Annuities, residue the defendants who appealed were his other children of the said 21,2441. 14s. 8d. like Annuities, when so and grandchildren. transferred as aforesaid, and the dividends thereof until

Malins, Q.C., and Archibald Sinilh, for the apthe transfer herein before referred to shall be made by them into the name and with the privity of the said pellants, contended that the proviso amounted to a Accountant-General pursuant to the undertaking here

gift over of the share in question upon the event of the

death of Harriet Rackham and the failure of her inbefore mentioned, be held by the said Robert Steele, children to attain twenty-one, and that it took effect, Edward Browne, and Hugh Wild, their executors and although the event happened in the testator's lifetime. administrators, upon the trusts of the said will of the

They cited, said testator Thomas Dawson subsisting or capable

Darrel v. Molesworth, 2 Vern. 378; of taking effect, and relating to the fund thereby

Ledsome v. Hickman, 2 Vern. 611 ; directed to be appropriated and set apart to produce,

Bretton v. Lethulier, 2 Vern. 653 ; &c., but subject to the payment of the proper propor

Willing v. Baine, 3 P. Wms. 113; tion of the costs and expenses hereinafter mentioned,

Walker v. Main, 1 J. & W. 1; and also to the payment of the costs of the transfer to

Humphreys v. Howes, 1 Russ. & My. 639; be made by them under the said undertaking.

Hannam v. Sims, 2 De G. & J. 151 ; Note. -See

Ive v. King, 16 Beav. 46 ; Re Boyce, ante, 396.

Re Sheppard's Trusts, 1 K. & J. 269 ;

Re Green's Estate, 1 Dr. & Sm. 68 ; Lords Justices.

2 Jarman on Wills, 714—717 (3rd ed.): RACKHAM V. DE LA MARE. 23, 25 JAN. 1864.

and distinguished

Bastin v. Watts, 3 Beav. 97 ;
Will, Construction-Gift over-Death in

Smith v. Oliver, 11 Beav. 494.
Testator's Life-time.

Greene, Q.C., and E. Ward, for the respondent, A share of residue was given by will to the testator's contended that the proviso amounted to a gift by way daughter C' for life, and after her death to her children of substitution, which failed by reason of the failure who should attain twenty-one, other shares being given of the objects of the original gift. In the cases cited upon corresponding trusts for other sons and daughters

on the other side the original gift was made to persons of the testator nominatim and their children, with a named, but here to a class, viz., the children of proviso that if any one or more of the sons or daughters

Harriet Rackham, which never existed. should die without having any child who under the

They cited, preceding trusts should become absolutely entitled to a

Rider v. Wager, 2 P. Wms. 331 ; share of the property, the original and surviving or

Shergold v. Boone, 13 Ves. 370 ; aceruing sharcs of each son or daughter whose issue

Christopherson v. Naylor, 1 Mer. 320 ; should so fail, and his or her children, should vest in,

Ive v. King (loc. cit.); accrue and belong to the survivors or others of the sons

Re Sheppard's Trusts (loc. cit.); and darughters for their lives, and be transmitted to

Slewart v. Jones, 3 De G. & J. 532; their children in the same manner as their original

Re Wood's Will, 31 Beav. 323. shares.

The word “

accrue” could not apply to shares nerer One of the daughters named in the will having died enjoyed by the original objects. without issue in the testator's lifetime, after the date of Archibald Smith, in reply. the will :Held (reversing the decision of Stuart, V.-C.), that

Knight Bruce, L.J., said that upon the letter and her share did not lapse, but passed to the other sons and spirit of the will before him, independently of authority, daughters and their children under the gift over con

and also upon the great preponderance of authority, tained in the proviso.

he thought that the proviso ought to be construed as

if the words had run thus—" if any one or more of my This was an appeal from so much of the decree of said sons and daughters shall, whether surriring or not Stuart, V.-C. (reported ante 25), as declared that by surviving me, die,” &c. Harriet Rackham was named

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in the will, and was living at the date of the will ; she having brought no action to establish his legal right, afterwards died in the testator's lifetime; but the having stood by and seen money laid out on the plaintiff, as heir-at-law and one of the next of kin of siding, and the traffic increase, without making any the testator, was entitled to nothing more than he objection, could not now be permitted to ask the would have been entitled to if she had died after the Court to do what in effect would be to stop the traffic testator's death. On the question how the case would of the company, and his Honour dismissed the bill have stood if she had been dead at the date of the with costs. will, he would give no opinion. He thought the The case in the Court below, is fully reported ante, respondent ought to have no costs of the appeal. 109. TURNER, L.J., agreed, and said that the authorities

Willcock, Q.C., and Roxburgh for the appellant. cited relating to substitutionary gifts had no bearing upon the present case, which appeared to him to be a of serious nuisance, for which there is no adequate

1st. Where the evidence clearly establishes a case gift to A. for life, with remainder to the children of A. who should attain twenty-one, and a gift over upon although the plaintiff has not brought an action to

remedy at law, equity interferes by injunction, the death of A. and failure of such children.

establish his legal right,

Soltau v. Deheld, 2 Sim. (N. s.) 152 ;
Lords Justices.

SWAINE V. THE GREAT Semple v. London and North-Western Railway
NORTHERN RAILWAY

Ca. 600 ;

Company, 1 Rail. Ca. 133. 25, 26 Jan. 1864. COMPANY.

In the present case, such a nuisance has been clearly

proved, Practice-Injunction-Nuisance-21 & 22 Vict.

Walter v. Selfe, 4 De G. & Sm. 315; c. 27—25 & 26 Vict. c. 42Damages.

Imperial Gas Company v. Broadbent, 7 H. of L. It is not in every case of a nuisance being proved that this Court will interfere by injunction.

Attorney-General v. Sheffield Gas Company, 3 De

G. M. & G. 319. Where, therefore, a plaintif filed a' bill to restrain a Railway Company from using a siding for the

2nd. The plaintiff's forbearance to sue until the deposit and stacking of manure in such a manner as to nuisance became intolerable, is no bar to his right to cause a nuisance to himself and his family, but failed relief in equity, even if it would have been a ground to prove the continuance of such nuisance, the Court

for refusing an interlocutory injunction, refused at the hearing to interfere by injunction, and

Gordon v. Cheltenham Railway Company, 5 Beav.

323. left the defendant to his remedy at law.

Notwithstanding the 21 & 22 Vict. c. 27, and the 25 He cannot be bound by his acquiescence in the & 26 Vict. c. 42, it is not compulsory on the Court to construction of the siding, which in itself was ungive damages, but it may leave the party injured to his

objectionable. remedy at law.

3rd. Even if the injunction should be refused, the

plaintiff's right to damages ought to be tried in this The plaintiff in this suit was the owner of a house Court, under Sir H. Cairns' Act, 21 & 22 Vict. c. 27, at Stevenage, in the immediate neighbourhood of the 25 & 26 Vict. c. 42; Stevenage Station, on the Great Northern Railway. Wedmore v. The Mayor, &c., of Bristol, 1 N. R. The defendants were the Great Northern Railway Company, against whom the plaintiff prayed by his Johnson v. Wyatt, ante, 270. bill, that they might be restrained from using the siding for the deposit and stacking of manure or other T. Stevens (Rolt, Q.C., with him), for the responmatter, whereby any noxious, offensive, or unhealthy dents, the company. fumes, vapours, or stenches, might be caused or 1st. The only nuisance complained of by the bill, is emitted, or from permitting their trucks or waggons the nuisance alleged to be caused by the detention of containing any such offensive matter remain on the manure at the siding, and the offensive nature of the siding, or using the siding in such manner as to the manure itself. On that ground alone relief is interfere with the quiet and wholesome enjoyment of sought. But the evidence for the plaintiff has enhis house by himself and his family. The siding was tirely failed to show that any such nuisance has been constructed in 1858.

caused to the plaintiff by the defendants, as will In December, 1861, the plaintiff, for the first time, warrant the interference of this Court. He referred to complained of a nuisance, and on the 19th of January, Bamford v. Turnley, 3 Q. B. 62; overruling Hole 1863, he filed his bill. No interlocutory injunction v. Barlow, 4 C. B. (N. s.) 334; was sought, in consequence of the nuisance being Attorney-General v. Sheffield Gas Consumers' Comabated subsequent to the filing of the bill.

pany, 3 De G. M. & G. 304. Wood, V.-C., that the plaintiff having thus 2nd. The plaintiff has no locus standi here. This delayed to take any steps for more than four years, will appear if we consider what was the jurisdiction of

120 ;

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