2

ADMIRALTY COURT.
ADMIR

ADMIRALTY COURT.

ADMIRALTY COURT,

The com

any other cause, and would it not be extraordinary if which are guaranteed by the treaty of Oct. 27, 1837,
Austria, or Prussia herself, was to guarantee as a between Great Britain and the Netherlands, and by
matter of necessity a war against herself, and in cases the convention additional to that article signed in
that might be supposed most injurious to the interests March 1851, so soon, and for as long as the Govern-
of the Ionian people? I mention these instances, not ment of the Ionian islands shall grant to the inhabi-
as decisive of the question before me, but as eluci- tants and vessels of the Netherlands the same advan-
dating some of the very gross anomalies which might tages which were granted in these islands to the
very possibly arise from some constructions of this inhabitants and vessels of Great Britain.
treaty. Whether they were in any degree foreseen or mencement of that treaty is not unworthy of observa-
intended by the high contracting powers, is a question tion. The Queen negotiates on behalf of the Ionian
upon which I am not called on to speculate. Some of states as perfectly separate and distinct from the
the secondary provisions of this treaty I may omit to dominions of the Crown of Great Britain. It com
notice with much convenience. By the 3rd article mences, "Her Majesty, the Queen of the United
the United Ionian States were, with the approbation Kingdom of Great Britain and Ireland, on the one
of Great Britain, to regulate their internal organisa-part, and his Majesty the King of the Netherlands,
tion. By the 4th, there is to be a legislative assembly on the other part, being desirous of promoting the
and a new constitutional charter, also to be ratified by relations of commerce and navigation, existing be-
the King of Great Britain. Until such charter was tween the United States of the Ionian Islands, which
ratified no alteration was to be made in the existing are under the protection of her Britannic Majesty,
constitution, save by the King in Council. Until and the kingdom of the Netherlands, have agreed to
that period, therefore, as to internal concerns, these conclude a convention for that purpose, and have
islands remained nearly, though not altogether, in the named, as their respective plenipotentiaries."
position of conquered islands belonging to the Crown Nothing can be more manifest than this preamble to
of Great Britain. The 5th article declares, that his show, that the Sovereign of Great Britain has nego
Britannic Majesty shall have a right to occupy the tiated for the Ionian islands as an entirely separate
fortresses of the islands, to maintain garrisons and and distinct state. Now it appears to me, certain
have the control of the Tonian forces. By the 6th, a conclusions follow in the consideration of this treaty.
particular convention is to regulate the maintenance First, it is evident that the Crown of Great Britain
of the forces, payment of the garrisons, and the num-
ascribes to itself the right of making treaties on behalf
ber of men in time of peace. This is a remarkable of the Ionian states. Secondly, that no treaty be-
limitation, because it evidently leads to the conclusion tween Great Britain and another state, does include
that in time of war-non constat, what war-Great the Ionian islands, unless specially named. I think
Britain was not to be subject to any such restriction. that is perfectly evident, because otherwise, there is
The 7th article is one deserving great attention. The no necessity for this treaty if it was included in the
trading flag of the Ionian islands was acknowledged former. Thirdly, that this power vested in the
by all the contracting parties as the flag of a free and Crown of Great Britain is limited, and limited as to
independent state. The effect of this provision I the Ionian states in the same way that the power is
apprehend is, if war existed between Russia and limited with respect to the British territories them-
Austria-Great Britain having no part in it-the selves, viz., the Crown may contract; but as to all
Ionian flag would be respected as the flag of a neutral internal legislation necessary to carry such contracts
power. In one respect, and one only, therefore, the into execution, it rests with the Government of the
neutral character would clearly belong to the subjects Ionian states to adopt the required measures, as it
of these islands. The description of the flag to be would so rest in similar cases with the British Par-
carried I need not enlarge upon. I must also observe, liament. Now, there is another very recent treaty
that the whole diplomatic power is lodged in Great with the Grand Duke of Tuscany, bearing date Dec.
Britain by virtue of this treaty. The constitutional 30, 1854. By the 2nd article of that treaty it is
charter does not, in my opinion, essentially influence stipulated, that the subjects of the Ionian islands and
any view I may take of the question on which I am their vessels shall enjoy the same privileges as the
unfortunately called to pronounce an opinion. The British ships in the Tuscan dominions, subject to the
status of the subjects of the Ionian states must be condition that the Government of the Ionian islands
governed by the treaty-not by the charter-so far as shall grant reciprocal rights. Here again it is per-
any question may arise affecting the right or interest fectly manifest that there must be a distinct contract
of the powers, parties to that treaty. Now, then, I to include the Ionian states, and that no obligation
will make a short summary of this case-it will show or contract with Great Britain, or for a part of her
some of the anomalies. A single, free and indepen- own dominions, would otherwise include these states.
dent state, having the flag of a free and independent Now, if it be necessary for purposes of a
state, the military, naval and diplomatic power is vested condary character, or for commercial purposes of
in the protecting state-the protected not being the comparatively small importance, for Great Britain
subjects of the protector, and not British subjects, for to include specially by name the Ionian states; and if
that is perfectly clear. Now, it is my duty, if I can, in the exercise of the powers of peace and war con-
as I apprehend, to give effect to all the main provi-ferred, if they are so, on Great Britain, such powers
sions of this treaty; I must maintain the quality of are exercised in so special a form and manner, does
independence, save as modified by the treaty itself, not the same argument show that when Great Britain,
and by parity of reasoning the independence of the as the protector of the Ionian islands, intends a
flag, or rather the rights and attributes of the flag of measure of infinitely greater consequence as affecting
an independent state. Having carefully addressed their welfare, such an intention should be expressed
myself to all these considerations, I come to the ques- in a formal and definite shape, that all the subjects
tion whether I ought to condemn the ship and cargo of those states may be aware of their changed con-
proceeded against as the property of British subjects dition, of the same duties and obligations which
trading with the enemy, as the property of allies await them in consequence of their being placed in a
trading with the enemy, or as the property of subjects state of hostility with a great continental power? To
of the Ionian states, being at war with Russia. There me, I confess, it appears clear that what was deemed
is no other state of things in which I conceive it to be proper and necessary for minor changes, must à fortiori
possible to pronounce a decree of condemnation. Now, be expected where the inhabitants of a state called free
with respect to the first ground of condemnation, I and independent-and guaranteed to be so, not by
of opinion that this property cannot be Great Britain alone but by other powers-are con-
condemned, for, according to all the authori- verted into enemies of one of the guaranteeing powers
ties and all the principles on which the autho-themselves. But confining myself to the considera-
rities are founded, no property can be condemned tion of the question, whether by the terms of the
on that ground unless it belong to a British subject treaty the subjects of the Ionian states as a necessary
in the proper sense of the term-which the Ionian consequence of the provisions of that treaty become
subjects are not. As to the second ground I am of the enemies of the enemies of the protecting power,
opinion I cannot condemn, because the Ionians are
at least, I ought to consider from what cause such
not allies in the war-no act whatsoever of the lonian necessity springs. Again, I must repeat the terms of
Government or of the protecting power has brought the proposition, to prevent mistake. I am not putting
them within the fair meaning of that term. On the or attempting to put bounds to the authority of Great
third ground I am of opinion that it does not follow Britain under this treaty. I am considering the im-
of necessity that the Ionian subjects are at once, by port of the treaty only where Great Britain has not
a declaration of war by the Crown of Great Britain, declared the exercise of her power. In this view of
confined to a declaration of war by Great Britain the case is it at all immaterial, at all inconsistent with
only against another power, comprised within that the powers of the treaty, at all injurious to the sub-
declaration, and constituted' enemies of that power. jects of the protected states themselves, that whatever
This being so, and there being no act of the protecting might be the relations of Great Britain towards
power, the Ionians stand in a very singular position. Russia or any other country, peace with the Ionian
Great Britain may have authority to do so, as the states should continue at least until war was declared
protecting power is possessed of all the right of treat- on their part by Great Britain? Are there not many
ing with foreign nations-the right to place them in instances in which Great Britain herself might wish
the category of enemies, but she has not thought not to involve the Ionian states in a warfare in which
proper to do so. Now, this observation I think is she herself is engaged, but in which they have no in-
entitled to more weight, from a consideration of the terest? But above all I must repeat what I have so
manner in which Great Britain has exercised the often said before in substance-could it have been the
great power secured to her by the treaty. I refer to intention of the contracting powers, evinced by the
the convention, dated May 1852, between the Queen, terms of the treaty, that a state of warfare should
and the King of the Netherlands. The terms of that necessarily follow upon hostilities breaking out be-
treaty are: the inhabitants and vessels of the Ionian tween themselves and others, without giving in the
islands shall enjoy, in the dominion of his Majesty terms of the proposition, even an option to the pro-
the King of the Netherlands, all the advantages tecing power to leave the Ionian states at peace? To

sides; it will not, in my view of the case, be neces-
sary for me to recapitulate it. I proceed upon the
assumption, which I believe to be accurate for it
matters not if it be not precisely accurate in all its
particulars-but to this effect, that all these islands
were conquered by Great Britain during the war
ending 1815. I proceed on that assumption-whether
Corfu surrendered at that time or some other I
need not inquire-I proceed on the assumption that
Great Britain dealt with them as conquered. Had
they continued after the peace in the same state, they
would have been a part of the dominions of Great
Britain, governed, as other conquered territories were
governed, by the Crown and Acts of Parliament.
Great Britain, however, did not retain these islands
in the ordinary course of conquered territories, but
she exercised a right indisputably belonging to her
of making, in conjunction with other powers, a new
and different status for these islands. Great Britain
ceded her original rights and merged them in the new
settlement. I am of opinion that no right remained
in Great Britain after the treaty to which I am about
forefer, except the rights conferred by that treaty;
that from the nature of that transaction, and from the
terms of the treaty itself, Great Britain can at this
period exercise no rights whatsoever that are not to
be found within the four corners of that treaty; that
there does not remain a scintilla of the original right
of conquest; that, for reasons with which I have no
concern, Great Britain laid at the feet of the contract-
➡ing parties, as she had a right to do, the power and
authority she had previously acquired. Henceforward
the treaty is the sole guide-from this document must
be derived all the rights of the contracting parties,
and all the rights and the obligations of the Ionian
states. The treaty of Paris of the 5th Nov. 1815, was
made between Great Britain, Austria, Russia, and
Prussia? I apprehend it is a mere truism to say it was
equally binding upon all and upon each of them.
The first article declares, that these islands shall form
sa single, free and independent state. My province is
simply that of construction, of ascertaining to the
best of my ability what the contracting powers in-
fended by the contract into which they entered, and
that, with reference in the first instance to the words
of the contract itself; but I must look to the whole of
the instrument and not to part. Terms, however
strong or clear in themselves, whatever meaning may
be attributed, necessarily attributed, to them standing
alone, may be modified by other parts of the same
instrument. The construction, therefore, I put on
this first article is, that the Ionian islands shall form
a single, free and independent state, according to the
plain meaning of those terms, subject to and liable to
be controlled by the rest of the treaty-the whole
treaty creates one obligation. The second article is
one of great importance, the declaration that this
state shall be placed under the immediate and ex-
clusive protection of the King of Great Britain. I
am strongly inclined to think that the necessary and
inevitable consequence of such a condition is, that
the King of Great Britain has the right of making
war and peace; indeed, such a power is inseparable
from protection, for how could the duty of protection
be fulfilled without such a right, and how could the
lonian islands be secured from aggression but by the
exercise of that power, and how could their tran-
quillity be secured afterwards save by the power to
conclude peace, with all its concomitants? But it is
another and wholly different question whether, in
consequence of this protectorate right, the Ionian states
become ipso facto the enemies of all or any power or
powers with which Great Britain may happen to be at
war; and it is also another and a different question,
whether, if Great Britain were on account of Ionian
aggrievances alone to adopt measures for her protec- am
tion against any other state, the kingdom of Great
Britain would necessarily be at war with such state.
This is a question which I must consider when here-
after I discuss further the provisions of this treaty.
The concluding part of this article is not important.
The other contracting powers renounce every right or
pretension which they might have had with regard to
the Ionian islands and guarantee all the dispositions
of the treaty. It is obvious that this clause entirely
removes from me the necessity of looking into any
part of the antecedent history, because, whatever might
have been the claims of any of the contracting powers,
they have completely ceded and merged them by this
treaty; that it were perfectly vain to look back to
them to obtain any information which can by possi-
bility be of use on the present occasion. It is im-
portant, however, to bear in mind that all the con-
tracting powers guarantee the position of these states.
Now this guarantee, it appears to me, opens another
view of this case. Did Russia, Austria or Prussia
intend to guarantee so intimate a dependence
on Great Britain that if one of such guaranteeing
powers became at war with Great Britain-I must
use the same expression over again-of necessity, the
lonian states must take part in that war? It would,
I think, be a singular guarantee, for it would be to
guarantee a state of warfare amongst themselves, and
in which the Ionian islands might not have the
remotest interest. Take the case of a war between
Great Britain and Prussia, some dispute having
arisen in the Baltic from the affairs of Denmark, or
VOL. XXV.-No. 649.

se

a

ADMIRALTY COURT.

are,

make the extension of all wars to the Ionian states inevitable, would be to deprive the protecting power of her discretion to leave them at peace. Now I am told that anomalous consequences must follow if the Ionian states are allowed to maintain a neutral character. I admit it must be so. quences be more repugnant to the treaty, than to hold But will such consethat a guaranteed free and independent state is involved necessarily in war by the act of another state contrary to their own interests, and without the least regard to them, and that, not by the act, the deliberate act of the protecting power, but merely as an inevitable inference? But, again, are anomalous consequences resulting from a treaty a reason for abrogating its main provisions? For construing such provisions, if possible, so as not to produce such consequences, no doubt there is very strong reason for abrogating none. Though all contracting powers may be bound by what they have done, yet surely it would be difficult to contend that such a construction as this must be taken as actually foreseen, and intentionally provided for too, by the stipulations of the treaty to the effect of entailing on the Ionian states any war in which Great Britain may be involved. But to this I ought to add, that if anomalous consequences, or such as can be deemed so, could dissolve treaties, I fear there would be little security for compacts amongst states. It often happens, unfortunately, from the want of care and caution, that treaties are so framed that when they come to be put in practice, consequences wholly unforeseen by the contracting parties will arise. anomalies so fearful, and are the consequences so But in this case, the detrimental to the protecting power as have been supposed? Trade by the enemy to the Ionian islands there can be none, without the consent of the protecting power, for Great Britain is in possession of all the fortresses and all the ports. What trade can be carried on by Ionian vessels ? Ionian flag must be provided with a pass signed by Every vessel under the the Lord High Admiral, or she will not be considered as navigating according to law. The protecting power, if it chooses to exercise it, has ample means of preventing any injurious consequences arising to itself; and that, without resorting to any violent construction of the treaty. order in council of the 15th April. I will now conI have not yet adverted to the sider what bearing it has on the question before me. By that order in council, it is declared, all the subjects of her Majesty, all the subjects of any friendly or neutral state, may, notwithstanding the present hostilities, freely trade with any ports or places not in state of blockade, contraband and carrying dispatches excepted. or more comprehensive than this declaration-there is Now, nothing can be clearer only one exception; it is in these words: "Except that no British vessel shall, under any circumstances whatever, either under or by virtue of this order, or otherwise, be permitted to enter any port or place in the possession or occupation of her Majesty's enemies." The single question on this occasion is, whether a vessel under the Ionian flag is a British vessel within the meaning of this declaration. question was a casus omissus, or what were the intenWhether this tions of her Majesty's Government, save as expressed in this declaration, Then what is the definition or true meaning of the am not called upon to inquire. words "British vessels?" First, all vessels properly so called according to our municipal law. all vessels under the British flag, though perhaps not Secondly, strictly entitled thereto, because by the law of nations the carrying the British flag stamps on them as to other nations the British national character. And, thirdly, such words may mean, though this is a much more doubtful point, vessels under neutral flags, but owned by British subjects. Now, I can affix no other meaning to these particular words. Within which of these three meanings Not in the first or second, clearly, without utterly discan I place an Ionian vessel? regarding and discarding the plainest expression of British flag. The words of the treaty are, the " I never can call the Ionian flag the knowledgment of the flag of the Ionian islands as the flag of a free and independent state." If words have any meaning, these words do not mean British flag. Then, lastly, can I say that this vessel under the Ionian flag, and owned by the inhabitants of these states, was owned by British subjects? I am of opinion that by no rational mode of construction can I come to such a conclusion. in council, judging from its terms, does not contemI think that this order plate the case of the inhabitants of the Ionian islands at all. I think they are not strictly British subjects, either in the strict sense of the terms or any other within the view of this order. I have therefore come to the conclusion that an Ionian vessel is not by virtue of this order prohibited from entering a Russian port not blockaded. another question behind-though the order does not There is, however, prohibit, does it permit and sanction an lonian vessel in going to a Russian port? The solution of this question will depend on other considerations. Is an Ionian vessel or vessels under a neutral or friendly flag? Is an Ionian a subject of a neutral or friendly state? If these questions can be answered in the affirmative, then the order in council would operate on this case; if not, then I apprehend, according to

the treaty.

ac

LAW TIMES REPORTS.

V. C. KINDERSLEY'S COURT.

the view I have already taken, the case must be
governed by the general law independently of
the order in council.
proposition because I am not willing to pass by
any matter of importance discussed at the bar;
I have brought forward this
entitled to restitution independently of this order in
but if I should be of opinion that the claimants are
council, it would not be necessary to determine
whether they are included in the provisions of it, and
it may be that the very grounds on which I hold the
claimants entitled to restitution would bring them
shall, if there be no other merits affecting the ques-
also within the operation of the order in council. I
tion, and if the case is to depend solely on the point
argued before me, restore the ship on the following
grounds: First, because it is not the property of
it cannot be, as the property of a British subject,
illegally engaged in trade with Russia on the ground
British subjects in any sense of the term, consequently
of the war between Russia and Great Britain. Now
it may be, as to this head, not unimportant to con-
sider on what ground the property of a British
merchant, trading with the enemy of Great Britain
during war, is condemned. We have all the law in
Hoop (1 Chr. Rob. 196.) It is upon this ground that
such property
the case of the Hoop, and in the Nelly cited in the
property is pro hac vice to be considered as an enemy,"
(to use the language of Lord Stowell)
and the parties considered pro hac vice, engaged in the
"taken adhering to the enemy, and, therefore, the
perty belonging to a neutral is not adhering to the
transaction are guilty of an illegal act. Such pro-
he has no enemies to adhere to. The prohibition is
enemy in the sense which is meant in that dictum, for
Lord Stowell, in the case of the Hoop, especially relied
to British subjects only, or to allies in the war. Now,
authority he could not have placed his dependence,
on the authority of Bynkershoek, and upon a greater
and every word in the passages quoted, and in the
whole treatise, relates to subsidies, to subjects and to
kershoek-to subjects and subjects only. So in the
subjects only. That is the expression used in Byn-
inquiry is, whether the property claimed was the pro-
numerous cases cited by Lord Stowell, the whole
Britain in the sense in which that term is used in
perty of British subjects-the subjects of Great
sequently owing at least a temporary allegiance to
Courts of Prize, namely, persons carrying on trade in
territories subject to the British Crown, and con-
the Ionian states stand in eadem conditione? It is
the Crown of Great Britain. Now, do the subjects of
admitted on all hands they are not British subjects in
the proper sense of the term; they have not their
averment would be to set the whole treaty at nought;
domicil in British territory; for to make such an
it would be to make a mockery of the most stringent
stipulations contained in that treaty.
Again, the Ionian subjects do not participate with
British subjects in the advantages of commercial in-
authorities may do so-a court of justice cannot.
Diplomatic
the inconveniences, and have none of the benefits?
tercourse by virtue of this treaty. Are they to suffer
Britain which they violate by such a trade? Perhaps
Do they owe any allegiance to the Crown of Great
this is the nicest and most difficult point, but I am
of opinion that allegiance in the proper sense of the
exists only between the Sovereign and his subjects,
term undoubtedly they do not owe, because allegiance
properly so called, which they are not. A limited
that by the terms of the treaty itself, as a sort of
equivalent for protection; and there may be cases in
obedience according to the treaty they do owe, and
due in return for such protection. But is it to be
which it might be competent to Great Britain to
declare that abstinence from trade with her enemy is
enforced without such a declaration?
cedent I can find none-beyond what it has hitherto
ciple to be enforced beyond all precedent-for pre-
But again, is this presumed illegality of trade a prin-
I think not.
been carried by any court, in any country, at any
time, in any decided case? On what ground is it to
islands, for they have no interest in the quarrel,
while without a possibility of benefit to themselves
be based? Not on that of advantage to the Ionian
they may be deprived of a lucrative trade, and that too,
without any formal act done by the protecting power.
I have mentioned, at least, some of the reasons which
have induced me to come to that conclusion. I have done.

V. C. KINDERSLEY'S COURT.
Reported by P. M. LEONARD and H. R. YOUNG, Esqrs.,
Barristers-at-Law.

Tuesday, May 8.
ATKINSON v. ABBOTT.
Solicitor-Retainer.

Where a solicitor obtained a written retainer from a client authorising him to proceed against the trustees and executors of his client's father's will, to obtain the probate thereof and to take such proceedings as might be considered expedient to obtain an account of the trust property under the will; the solicitor took proceedings in the Ecclesiastical Court and afterwards filed a bill in an administration suit in this court on behalf of his client, and the client moved to take the bill of the file as put on without proper authority:

[SEPT. 8, 1855.

V. C. KINDERSLEY'S COURT.

Held, that such written retainer did not authorise the Held, also, that if a solicitor relies upon a written reinstitution of a suit in this court, and the bill must be taken off the file accordingly on the same terms as Allen v. Bone, 4 Bear. 493: as an authority for instituting a suit in this court, the retainer should explicitly and clearly state such object.

off the file, as having been put on by a Mr. Bracken-
bury, the plaintiff's solicitor, without due authority
This was a motion by the plaintiff to take the bill
for that purpose.

pointed two executors and trustees thereof, and devised
and bequeathed his property to trustees for his children,
to be divisible when the youngest child attained the age
John Atkinson, by his will, dated in Oct. 1819, ap-
widow and the plaintiff and other children him sur-
viving.
of twenty-one. The testator died in 1821, leaving his

will, but never rendered any account of the property
gave Brackenbury a retainer in the following form:
The executors acted in the trusts of the
to their cestux que trust; and in 1852 the plaintiff

in the county of Lincoln, do hereby appoint you my against the trustees and executors of my late father's "29th May 1852. I, William Atkinson, of Huttoft, solicitor, and authorise and request you to proceed will, to obtain the probate thereof, and to take such father's will." Mr. Brackenbury then, in June 1852, proceedings as may be considered expedient to obtain an account of the trust property under my said against the executors, in the course of which an ac commenced proceedings in the Ecclesiastical Court Feb. 1853; and in Jan. 1855, Brackenbury, without any count was filed by them. That suit was dismissed in filed this bill for an account and administration of the intermediate steps, or communication with the plaintif that he was satisfied with the account rendered by the testator's estate. executors in the suit in the Ecclesiastical Court; that The plaintiff in his evidence swore authorise nothing more than the proceedings taken meant by the retainer given to Brackenbury to he knew his father's estate was insolvent; that he rendered; and that he never otherwise authorised to obtain probate of the will, and the account as retainer, and swore that it was intended to be the filing of this bill. Brackenbury relied on the that this suit was such a step. a general one, empowering him to take any necessary steps to obtain an account from the executors; and

contended that where there was the oath of a client against his solicitor, that of the client, in the absence of any express retainer, must prevail. Here the reSelwyn for the plaintiff, in support of the motion, ing probate and the usual inventory in the Ecclesiastainer, in terms, authorised no more than the obtaintical Court; and, when that was done, Brackenbury's Crossley v. Crowther, 9 Hare, 384.). duty was at an end: (Allen v. Bone, 4 Beav. 493

潤

bury, said, the object of this motion was, by an irre-
gular means, to put an end to this suit. They relied
Campbell, Q.C. (R. Moore with him), for Bracken-
(Tarbuck v. Tarbuck, 6 Beav. 134.)
respondent to file a bill for an account in this court:
on the terms of the retainer as fully authorising the

L

I must allow this motion. given to Brackenbury to file this bill? or, if not, has The VICE-CHANCELLOR.-It does appear to me that solves itself into this: was there a written retainer The whole question rethere been any acquiescence on the part of the plainwas informed of the fact that Brackenbury had filed the bill; he gave notice of motion soon after he knew tiff' in what Brackenbury has done? The plaintiff therefore, been no acquiescence on his part. It was have the bill taken off the tile. that fact, namely, in March; and he now moves to There has clearly, motion I have no concern. which may have induced the plaintiff to make this an end to this suit; but, with regard to the views suggested that this motion was only now made to put rights by investigating the motives of his conif he can. I cannot decide a man's what is the effect of the plaintiff is not entitled to put an end to the suit duct. Even if I could, May 1852? That, I admit, must be construed by ought not to say the itself; but still, with respect to, and a knowledge of, the surrounding circumstances of the case. Well, then, the question really is, with reference to Lord Langdale's observation in retainer of the 29th Now, Allen v. Bone, the retainer or written authority given by a client to his solicitor ought, in a case of this kind, to be not merely one "to take the account," but to institute a suit for that purpose: that is, if a suit is instituted to take the accounts of the estate of the testator, a written authority for that should be shown by the solicitor. A solicitor would not be doing which he acts should be substantially clear, plain, and his duty if he took from an ignorant client a vague authority for such a step. The instrument upon explicit. But what are the surrounding circumstances of this case? The testator died in 1821, having devised and bequeathed his real and personal estate to two persons, named Abbott and Stephenson, the property was to be when his youngest child as trustees and executors, and the final distribution of by the plaintiff to Brackenbury, the executors had attained twenty-one. When the retainer was given not proved the will; they had not then, or at all

TAY C. STUART'S COURT.

events had not from 1821 to 1852, given any account to their cestux que trust of the testator's estate. No account appears indeed, so far as I can see, to have been ever rendered by them. Well, in that state of circumstances, the plaintiff gives Brackenbury the retainer. That retainer is, I think, a sufficient authority to him to institute a suit to obtain probate in the Ecclesiastical Court, and to take such proceedings as may in that court be necessary to an account. But it was said that the account sought could only be obtained in an administration suit; that the Ecclesiastical Court could not take cognizance of such a suit; and therefore that the retainer must have meant to authorise a suit in this court. That is an interprestation, however, which I think no unprofessional man would put upon the language of this retainer; and it is one which the plaintiff certainly did not put on it. The retainer then appears to me to authorise no more than the taking of proper steps for probate and an account in the Ecclesiastical Court. Brackenbury himself seems so to have in reality considered it; for when he had obtained it, and the suit in the Ecclesiastical Court was abandoned, he did nothing, till he filed this bill two years afterwards, without any consultation with his client in the mean time. If Brackenbury had applied to the executors, and they had rendered an account, independent of the suit in the Ecclesiastical Court, the retainer would have been bisatisfied. It appears to me, then, that this retainer was no authority for filing this bill. I do not mean to say that no retainer can, under any circumstances, authorise a solicitor in filing a bill, without speeifically and in terms so stating; but I do say, that if a solicitor relies upon a written retainer as an authority for instituting a suit in this court, the retainer should explicitly and clearly state such an object. I have said that I think there was no acquiescence on the part of the plaintiff in Brackenbury's proceedings here; and as this retainer did not authorise him to file this bill, I must declare that this bill be taken off the file, on the same terms as in Allen v. Bone,

da V. C. STUART'S COURT. Reported by JAMES B. DAVIDSON, Esq., of Lincoln's-inn, TILLES BUSTNE | Barrister at-Law.

Feb. 13, 14, 15 and 16, and July 25.1 2000 RITTSON v. STORDY.

Will Construction-Devise to the heir-at-law of my heir-at-law now in America." valent to heir-apparent or presumptive-Trust for an "Heir-at-law" equimachien-Rights of the Crown-Rights of trustees-Resulting trust.

LAW TIMES REPORTS.

follows:"to the heir-at-law of my heir-at-law
V. C. STUART'S COURT.
now in America, his heirs and assigns for ever."
April 1827, without having had issue. The testator
The testator died at Thrustonfield, on the 17th
had an only brother named Thomas Harrison, who
was born in England in the year 1741. This Thomas
Harrison emigrated to the then British colonies in
North America, in the year 1763, and settled in the
vania, and was married there on the 21st June 1764,
to Sarah Richards of Philadelphia. Of the children
same year in Philadelphia in the province of Pennsyl-
of this marriage two only survived their infancy;
namely, John Harrison, who was born at Philadelphia
in the year 1773, and Thomas Harrison, who was
born after the lastly named John Harrison.

[Vol. 25-315

pl. 8; Doe v. Angell, 9Q, B. 828;
17. 9 Q. B. 828; Middleton v. Spicer,

V. c. STUART'S COURT.

Harrison.-It was said on his behalf, first, that if he i Bro. C. C. 201; Powell v. Merrett, 17 Jur. 449.). every one except the Crown; he might take if he Wigram and Charles Hall appeared for Thomas could not hold:" (Co. Litt. 2 b.) An alien could not devise because his title was defective; but the defect was an alien, he was a good holder of lands against 404; 4th part Leon. 84). Here the Attorney-General had filed no information, and would the court decide, was only one of title, not of birth: (Shepp. Touchst. as between two co-defendants, that the Crown was entitled? The word "heir" was used here in the Philadelphia from his emigration in 1763 until his secondly, was the present claimant disabled from sense of "heir-apparent," and Thomas Harrison was The testator's brother Thomas Harrison resided at & Vinc. 58; 1 Powell on Devises, 315.) Then the person designated: (2 Jarm. Wills, 13, ed. Wolst. death in 1815; and he left his elder son John Har-taking? What was the position of his father John Comm. 369, Coleridge's note; Co. Litt. 88a. Allerison, testator's nephew, him surviving. giance is treated as a contract which cannot be before the recognition of independence, see 1 Bl. Harrison? For the common law on this subject forfeited, or cancelled, or altered by any change of time, place, or circumstance, but an act of the Legislature: (Calvins case, 7 Rep. 6; see the stat 4 Geo. 2, c. 21; and Pufendorf, lib. 8, c. 11, s. 2.) [The VICE-CHANCELLOR.-In any severance it is ne9 B. & C. 775; Sutton v. Sutton, 1 R. & M. 663; ranged by treaty.] The treaty with America was cessary that the question of allegiance should be armerely territorial: (Doe dem. Auchmuty v. Mulcaster, Fitch v. Weber, 6 Hare, 51.) The rule of common law was not altered by the treaty.

ried Lydia Leib, an American lady of Philadelphia,
and he was a resident in Philadelphia from the time
This John Harrison, on the 27th Nov. 1802, mar-
of his birth until his death in the year 1833. He
died intestate as to hereditaments in England, leaving
his eldest son Thomas Harrison, one of the present
claimants surviving him, who was born in Philadel-
phia on the 1st April 1806, where he had been all his
life since a resident.

and on the 3rd Sept. 1783, the Acknowledgment of
The Declaration of Independence of the United
States of America was dated on the 4th July 1776,
Independence was made by the Crown of Great
Britain.

testator, had an only sister, named Ruth Harrison,
Thomas Harrison of Thrustonfield, the father of the
who was married to John Rittson in the year 1725,
and died in 1742.

rison, Charles Rittson, a natural-born subject of the
At the time of the death of the testator John Har-
Crown, and great-grandson of the said Ruth Rittson,
was her lineal heir-at-law, and was also the heir-at-
law of the testator, if the testator's brother Thomas
Harrison had died without issue, or if, having issue,
such issue were incapable of inheriting lands in
England.

The said Charles Rittson died in England in the
year 1845, having by his will devised all his real and
personal estate, whatsoever and wheresoever, to the
plaintiff Elizabeth Rittson, her heirs and assigns,
absolutely.

estate: first, the plaintiff Elizabeth Rittson; secondly,
There were four claimants to the testator's real
the testator's will; thirdly, Thomas Harrison; and
the defendant John Stordy, the surviving trustee of
fourthly, the Crown.

Testator, by will dated in 1826, devised lands to trustees
and their heirs upon trust, to convey "to the heir-at-
law of my heir-at-law now in America, his heirs and dated the 9th Nov. 1854. By that report the master
A decree was made at the hearing of the cause
on 10th March 1852, and the master's report was
assigns for ever."
issue. His only brother, a native of England, emi-and the cause now came on upon further directions.
Testator died in 1827 without submitted the question of construction to the court,
grated to America in 1763, and died there in 1815,
leaving an eldest son J., born in America in 1773,
who continued to reside there till his death in 1833.
J. married an American lady, and had an eldest sondence, of parents born and continuing to reside there,
T., the present claimant, born in America in 1806, and
ever since resident there.
The declaration of independence of the United States of
America, on the part of the Crown of Great Britain,
was made by treaty in 1783:
Held, that T. was the person designated by the language
of the devise:

that the child of a British subject continuing to reside
in America was not an alien, would be to make all
Bacon, in reply, said that the effect of contending
of the Crown.
the persons so born in America natural-born subjects

but he cannot take by descent: (Co. Litt. 2 b.) It
Malins in reply.-An alien can take by purchase,
would have been otherwise if the present claimant
had been named in the will. This was no description
of an individual; there was nothing to show that the
testator knew whether his brother were living or dead;
apply to a direct devise by name to an alien. The
the passages from Shepp. Touchst. and Leon. only
contract between Great Britain and the States ex-
tended to allegiance. John Harrison was in the same
position as Ludlow, in Doe v. Acklam. As to the
cited.
Crown's right Beale v. Symonds, 16 Beav. 406, was

claim.
been a claimant the property but had withdrawn her
F. T. Sergeant appeared for Mrs. Rooke, who had

the performance of certain trusts, are directed to the following judgment.-The testator, who died in July 25.-The VICE-CHANCELLOR now delivered 1827, devised his real estates to trustees, who, after convey the whole "to the heir-at-law of my heir-atcontended that Thomas Harrison, having been born Thomas Harrison, had emigrated to America in the Malins and T. Greene, on behalf of the plaintiff, The testator had no children. His only brother, in the United States after the declaration of indepen-year 1763, where he married, and died in 1815, leaylaw now in America, his heirs and assigns for ever." ing his eldest son John Harrison, born in America in was an alien (Doe v. Acklam, 2 B. & C. 779), and, as the year 1773, whose eldest son Thomas Harrison was and, therefore, incapable of taking under the descrip- claims to be the person who is described as the heirsuch, was incapable of inheriting lands in England, born in America in 1806. This Thomas Harrison tion in the will as heir-at-law of the testator's heir-at-law of the testator's heir-at-law, now in America. 193; O. Bridg. Ed. Ban. 410.) At the time of the if John Harrison and Thomas Harrison are aliens, at-law: (Collingwood v. Pace, 1 Vent. 413; 1 Sid. The present plaintiff is the devisee of the person who, Held, moreover, that the testator's brother, by continuing could answer the above description in the will; hence in question. By the words "my heir-at-law now in testator's death there was no person in America who was the proper heir-at-law entitled to inherit the lands to reside permanently and for the rest of his life in the the devise was void for uncertainty, and the heir-at- America" the testator plainly described a person United States, after the treaty of 1783, became a citi- law in England was entitled. zen of the United States and ceased to be a British subject: Bacon and Currey for Stordy, the surviving trustee in which the words "heir-at-law" are used in a Also, that his son J. having, after he had attained twenty-son was not void for uncertainty, inasmuch as the ex- settled that, when the words "heir-at-law" are used in whom he believed to be alive; therefore this is a case of the will, argued that the devise to Thomas Harri- popular and not in a technical sense. It is now well one, continued to live and having died in the United pressions in the will amounted to a sufficient designatio a popular sense, they may properly designate the heirStates, never was a British subject; and, further, that persona (James v. Richardson, 1 Vent. 334; Hale, presumptive or heir-apparent. Taken in the popular T., the present claimant, was an alien; consequently, C.J. in Pibus v. Mitford, 1 Vent. 381; Mandeville's sense, Thomas Harrison, of Philadelphia, the eldest that the testator's brother and his son J. were inca- case, Co. Litt. 26 b.; Burchett v. Durdant, 2 Vent. pable of having an heir-at-law as to English law, and 311; Wills v. Palmer, 5 Burr. 2615; S. C. 2 Wm. tion of "the heir-at-law of my heir-at-law now in that T., being an alien, was not entitled to have the Bla. 687; Fearne's C. R. 82 Harg. n. (3); Goodright America." But it was argued for the plaintiff that, executory trust performed in his favor. son of John, is the only person answering the descripAs no alien can sue to recover land in England, no alien 1 P. Wms. 229; S. C. 3 Bro. P. C. 60; Carne v. Roch, tion, no person can take unless he answers the whole v. White, 2 W. Bla. 1010; Derbison v. Beaumont, where the word "heir" is used as a word of descripcan maintain a suit for his own benefit for enforcing 7 Bingh. 266: Doe v. Perratt, 5 B. & Cr. 48; S. C. description, and is capable of taking and inheriting as the performance of an executory trust. The court will not, at the suit of the Crown, order per-ever, an alien, as contended for by the plaintiff, was America, because, being an alien, he could not in9 Cl. & Finn. 606.) Thomas Harrison being, how-heir-that in this case there was no heir-at-law in formance of an executory trust, by conveyance to an alien, in order that the Crown may thereby be enabled heir-at-law. The case of Collingwood v. Pace, and herit as heir, and could, as to English land, have no A trustee cannot claim to hold for his own benefit, where show that where the words "heir" or "heir-at-law" other cases cited in support of this proposition, only the instrument expressly says he is to hold as a trustee are used in the technical sense—that is, are used in merely, if there be any person to whom by operation of reference to an ancestor so as to show that having law the beneficial interest results. Held, that, under the above circumstances, there was a the capacity to inherit is part of the descriptiontrust, the beneficial interest of which had resulted to they cannot mean an alien or person incapable of inthe testator, through whom the plaintiff claimed, and that one who claims by purchase under the descripheriting as "heir." But that is no more than saying that he was therefore entitled. tion of "heir" must show that he is "heir" in the of description, so that the capacity to inherit is not of the word "heir" is used in a popular sense as a word sense in which the testator used that word. Where inherit ceases to be material if the person meant is otherwise ascertained with certainty. This testator, referring to the person as being in America, mentions the essence of the description, the want of capacity to the very situation and circumstance on which the

to seize.

This was a suit instituted to determine the true construction of the will of John Harrison of Thrustonfield, in the county of Cumberland. The testator, by his will dated the 16th Nov. 1826, devised certain real estates to Thomas Stordy, since deceased, and the defendant John Stordy, their heirs and assigns, upon trust at the end of a year after his decease, to convey all the said real estate and every part thereof. as

benefit of the Crown, but for that of the devisee. The
unable to take; and the devise accrued, not for the
claim an equitable estate which an alien cannot take:
Crown has no right to come into a court of equity to
(Attorney-General v. Henchman, 3 Myl. & K. 485;
Walker v. Denne, 2 Ves. jun. 170; Burney v.
M'Donald, 15 Sim. 6; Taylor v. Haygarth, 14 Sim. 8;
Baker v. Wall, 1 Lord Raym. 185; The King v. Holland,
Bla. 123; S. C. 1 Eden, 177; Davall v. The New
1 Styles, 21; S. C. All. 14; Burgess v. Wheate, 1 W.
MN. & G. 506.)
River Company, 13 Jur. 761; Onslow v. Wallis, 1

trust for an alien enured for the benefit of the Crown
Wickens, for the Crown, contended, that a devise in
(Attorney-General v. Sands, Hardr. 488; Lewin on
Trustees, p. 99; 1 Saunders on Uses, 309, ed. 1844;
Fourdrin v. Gowdrey, 3 Myl. & K. 383; Du Hourmelin
v. Sheldon, 4 Myl. & Cr. 425; 2 Vin. Abr. 258, Alien
(A) pl. 8, and marg. note; 1 Roll. Abr. 194, Alien

V. C. STUART'S COURT.

LAW TIMES REPORTS.

[SEPT. & 1855,

V. C. WOOD'S COURT.

churchwardens and overseers for the time being of the parish of Putney in the county of Surrey, praying a declaration that six acres and a-balf of land lying session of the defendant, were subject to a charitable intermixed with the Roehampton estate, in the poetrust for the benefit of the church and poor of Putney, and that the defendant might be decreed to deliver up possession of the same; that a commission might be directed to issue for the purpose of inquiring and dant's possession which were subject to such trust, setting forth what were the lands now in the defenupon trust for the church and the poor of Putneys and that, if necessary, the lands, when set forth, might be conveyed to the relators and their successors that if it should be found impossible to set forth such lands, an inquiry might be made as to the value of the said lands, and that a commission might be veyed to the relators. ngendi equal value, and that when set forth it might be condirected for the purpose of setting out such part of the defendant's estate at Roehampton as should be of

alleged incapacity to inherit depends, and makes them that although the King should have the use, yet he V. C. WOOD'S COURT. as much a part of the description as the words "heir- could not seize the land itself by law, but by equity he at-law." There is therefore no room to doubt as to might have a decree for the land; and so was Sir John whom the person was whom the testator meant. Thomas Harrison, therefore, as the person described, the case of a term granted by the King in trust for one Dack's case. As it seems that Sir John Dack's case was would seem to be entitled to the conveyance from the who afterwards committed felony-so that there must, trustee, unless it be shown that he is an alien, and, independently of the right of the Crown under the as an alien, is not entitled to have the executory trust forfeiture, have been a resulting trust for the Crown, performed in his favour. It has been argued that, inasmuch as under such circumstances it would result being the son of a natural-born British subject, although he was born in the United States since the Crown or a subject-the authority of that case is of declaration of independence, he is not an alien, but a to the grantor of the term, whether granted by the British subject. The testator's brother Thomas Harrison, who emigrated from England in the year sue to recover land in England, the jurisdiction for little or no value upon the question whether there is an equity in the Crown. Inasmuch as no alien can 1763, during that same year settled in Philadel- enforcing the performance of the executory trust in phia, where he continued to reside from that time land cannot be exercised at the suit of an alien suing till his death in 1815. His son John was born for his own benefit. If such a jurisdiction were exerin Philadelphia in 1773, married an American lady in cised at the suit of the Crown, praying, not for a 1802, and resided in Philadelphia from his birth performance of the executory trust by a direct contill his death there in 1833. the present claimant, was born in Philadelphia alien, in order that the Crown might be able to seize His son Thomas, veyance to the Crown, but by a conveyance to the in 1806, where he has continued to reside till this (according to the dictum attributed in the Reports to time. British-born subjects, settled in the American colonies at the time of their declaration of independence in 1786, confirmed by the treaty of 1783, would be to permit a right of suit for the performance some of the judges in Rex v. Holland), that would ceased to be subjects of the Crown of Great Britain, of an executory trust, not for the benefit of the cestui seem to be an abuse of the equitable jurisdiction. It and became alien thereto by a continued and permanent residence in those states after that treaty. The benefit and enjoyment by himself for the purpose of Crown, by the treaty, distinctly contracted with the which the executory trust was created. The claim of que trust, but in order to defeat his right to that inhabitants of those states to release them from their the trustee to hold for his own benefit by reason of allegiance and subjection to the Crown of Great the want of any title in the alien or the Crown, could Britain. During the argument Calvin's case was only prevail from want of title in any one to enforce cited to prove that the character of a natural-born the performance of the trust. If the devise be in subject of the Crown of Great Britain is indelible, and favour of the alien, like any other devise of an that he cannot become an alien ex post facto. The equitable interest which fails, it results to the person attempt to maintain that proposition, as applied to entitled to claim by descent, and on whom, according the United States, is to deny the validity of the de- to law, the descent is cast. It is well settled by variclaration of independence, as recognised by the treaty ous cases, and recently by the decision in the H. of L. between the Crown of England and the inhabitants in Ellcock v. Mapp, 3 H. Lds. Ca. 492, that a trustee of the United States, and sanctioned by Act of Par- cannot claim to hold for his own benefit where liament and by the law of nations. All the inhabitants of those states, although born subjects to the that he is to hold it as a trustee merely, if there King of Great Britain, by continuing to be inhabit- be any person to whom, by operation of law, the the instrument which creates his estate expressly says ants, that is, by continuing to reside permanently beneficial interest results. The decision of the L. C. and for the rest of their lives in those states after the in Henchman v. The Attorney-General, against the treaty of 1788, became and were citizens of the United right of the Crown claiming by escheat, was on the States, and ceased to be British subjects. This was ground that the Crown could only be entitled by decided in Doe v. Acklam. But it was incident to escheat where there was no tenant, and that, the legal their right of putting off their allegiance thus given estate being in the trustee, who thus filled the to these subjects of the Crown that there must be an tenancy, there was no room for any claim by escheat; unequivocal manifestation of intention to do so; and, but there being no heir on whom the equitable estate unless the right was assumed by some unequivocal could descend, or to whom it could result, and thereact, such as continued and uninterrupted residence in fore a complete vacancy of any equitable title, the the new state, the original allegiance and subjection estate must remain in the trustee. In the present must remain. In Auchmuty v. Mulcaster, an adherence to the Crown of England was held to be suffi- by the will, the legal estate would have descended on ciently manifested by a return to this country on the the plaintiff's testator as the person nearest in descent case it is not disputed that, if no trust had been created declaration of independence, remaining then two years of inheritable blood. On the present plaintiff's tesin England, and returning to the United States tator, therefore, if the original testator had died in the employment of the British Government. intestate, the right of inheritance by descent would be It has been contended, however, that the in-cast by operation of law. The testator, having defancy of this claimant's father, at of the treaty in 1783, made it impossible for him the date to elect or manifest any intention of putting off the allegiance under which he was born. But if, as it would appear, the parent of this infant did enough, by continued and uninterrupted residence, to become a citizen of the United States; and if, on attaining his full age, the son also continued to live and died in the United States, he never was a British subject, for (as was said in Doe v. Acklam) by his continued residence in the United States he manifestly became a citizen of them. grandfather of the present claimant, and if they ceased If that be so as to the father and to be British subjects, he who was born in the United States in 1802, and has resided there ever since, cannot be a subject of Great Britain, but is an alien. Still it is said that there is authority for the proposition that an alien is capable of taking land by devise, and is entitled to hold against everybody but the Crown. If this were a case of the devise of a legal estate to an alien, the question would be merely at law between the alien and the Crown. But even at law an alien cannot sue to recover possession of land, although an alien friend may sue in respect of mere personal property. The Crown, however, in this case claims on the ground that a devise in trust for an alien, directly or indirectly, enures to the Crown. There is no precise authority for this except the dicta in Reg. v. Holland; and in The Attorney-General v. Sands, Sir Matthew Hale is reported by Hardress to have said, that a trust (of the inheritance) in an alien is forfeitable, and will belong to the King, as it was held in 23 Car. in Holland's case; and the reason is, because an alien has no capacity to purchase for the benefit of any other but of the King. It is impossible safely to rely on this report, for it is certain that in Holland's case, which was the trust of a copyhold for an alien, the judgment was against the Crown: and as to saying that the trust was forfeitable on account of the alienage, it was decided by the H. of L. in Duplessis v. Attorney-General, 1 Bro. P. C. 415, that the Crown takes lands given to an alien, not by way of forfeiture, but only by a right to take the profits of the land. In Reg. v. Holland, according to the report in Alleyne, Bacon said that an alien at the common law could not compel the feoffees to execute an use; and Rolle said, Attorney-General, at the instance and relation of the This was an information filed in Feb. 1854 by the

incapable of inheriting, has created a trust for a purvised the estate to a trustee in trust for a person pose which has failed. It is the case, therefore, of a resulting trust where the beneficial interest has resulted to the plaintiff's testator as the person entitled to inherit by the law of descent. The plaintiff, for this reason, is entitled to a decree that the trustee convey the inheritance to her. As the suit was not occasioned by the claim of the trustee, and the costs have not been increased by that claim, I think he cessful claimants, and must bear their own costs. Crown and the alien are mere adverse and unsucmust have his costs, charges and expenses. The The alien, by arrangement, had his costs; and the trustee his costs, charges and expenses.

V. C. WOOD'S COURT.
Reported by J, HENRY COOKE, Esq., Barrister-at-Law.

June 4, and July 18, 19 and 25.
THE ATTORNEY-GENERAL v. STEPHENS, THE PUTNEY

CHARITY.

Before the year 1636, lands which had formerly been
Charity-Confusion of boundaries-Commission to
ascertain boundaries.
conveyed for the benefit of the church and poor of a
certain parish, became intermixed with land of an
estate. In that year the owner of the estate admitted
the fact and agreed to charge lands with the payment
of an annual sum as a rent for the same. Entries of
these payments were regularly made in the parish
Held, that the agreement of 1636, the entries and receipts,
books, and receipts were given for rent "in respect of
parish land."
proved that the owners of the estate were tenants from
year to year of the parish lands; the receipts estopping
the owners from denying the right: that an arrange-
ment between owners of the estate, which had been
divided that the rent should be paid out of one portion,
did not bind the parish by privity, and that a commis-
sion must issue to set out the lands or land of equal
value.

dens and overseers for the benefit of the church and previously to the year 1634 the parcels of land in The allegations of the information were, that in and parish, and that in that year they were in possession question had been duly conveyed to the churchwar wardens and overseers, and that an agreement was then come to that the Earl should thenceforth contine of the Earl of Portland as tenant at will to the church to occupy them as tenant from year to year at the yearly rent of 67., and that a memorandum of such agreement was executed on the 1st Sept. 1634, in in following terms:

several grounds at Roughampton divers parclis of land wch doe contain by estimation six acres and half, bee they more or lese, and doe belong to the "Whereas there lyeth within my new park and church and poore of ye pish of Putney, in ye county of Surrey, for wch lands, lying dispensed wth in my said grounds, being heretofore ordayned for good and full and yearly valuable yearly rent and satisfaction, and doe promise and agree to pay unto ye church charitable uses, I am desirous and willing to give a wardens and overseers for the poore of ye said parishe for ye tyme being yearly ye sum of six pounds, same to bee paid at the feast of St. Michael the Archangel and ye Annunciation of ye Blessed Virgin Mary henceforth by even and equall portions yearlys and I doe further promise and agree to make spen further assurance hereof as by counsell learned shall be advised, and to sett out sufficient land of a better value for performance thereof, wch I shall either tye for ye payment of ye said yearly rent or otherwise assure and convey to such pson and psons and their feoffees in trust for the same. heires as shall by the vestrymen of the said parish have hereunto sett my hand and ceal the first day of September in the 11th yeare of the reign of our most or the greater part of them, bee nominated to be gracious Sovereigne Lord King Charles-FORTLAND In witness whereof I

the late father of the defendant, Mr. Lyne Stephens, estate had passed from owner to owner until, in 1842 purchased the same, and it remained in his possession The information further alleged that the Roehampton until his death in 1851, when it descended upon the defendant Mr Stephen Lyne Stephens, his eldest son and heir-at-law; that the lands mentioned and re ferred to in the agreement of 1634 were correctly and minutely described in the minute-book of the parish in the year 1636, and therein plainly marked out by certain boundary marks and capable of identification in 1634 down to the present time the said parcels at that period; that from the time of this agreement piers of the Roehampton estate respectively as tenants land had been held by the several successive occufrom year to year to the churchwardens and overseers of Putney, and that during the aforesaid periods the yearly rent of 64 was duly paid to them by the seve ral successive occupiers of the Roehampton estate that annual payments of 61. had been made by the defendant and his father, and receipts taken by the which were expressed to be for this payment in dence took place between the defendant and the respect of parish lands;" that in 1851 a correspon of ascertaining and marking the boundaries of the relators, who demanded an increase of rent propor tionate to the present value of land in such a situa tion, and applied to be allowed to enter for the purpo acres inclosed within the defendant's estate; the rent or to allow any portion of his estate the defendant refused to pay any increase be marked, and had been served with notice to quit, which expired on the 25th March 1853that the lands had been originally, and when first let in possession of the said parcels of land as tenants plainly and clearly defined and distinguished by metes and bounds, and that the persons who had beca from year to year, and in particular, the defendant and his father, had from time to time and by degrees removed, destroyed and obliterated, or caused so 29 be done, the metes and bounds, and so confounded the boundaries that it had been impossible for the relators to distinguish them, wherefore they unable to recover possession by any proceedings the portion occupied by the defendant had been der subdivided since the Earl of Portland's time, that law; that the Roehampton estate had been greatly

rived from a division and settlement of the property in 1786, and upon the title-deeds of this portion an annual payment of 67. was recited as being due to the parish of Putney, and that the particular portion of the original estate charged with this payment had been at one period only thirty-one acres, with the

The principal points in the contention were as to the true construction of the agreement of 1634:-the churchwardens and overseers contending that it created the relation of landlord and tenant, and that the payment of the rent in question, in support of which various receipts were produced and referred to, amounted to an acknowledgment by the different owners of such tenancy; the defendant, on the other hand, contending that the agreement showed on the face of it the creation of a perpetual rentcharge in favour of the parish in lieu of the lands, and subject to which rentcharge the lands had been conveyed to the defendant's father, under whom he claimed, and that the payment of the 67. had always been made on that footing. The defendant also contended that the parcels of land did not, in fact, form any portion of that part of the Roehampton estate of which he was in possession: that if they did, he had come into posSession of them unwittingly, and as a purchaser for valuable consideration without notice, and that the right, if any, of the churchwardens and overseers might be the subject of an action at law. Another point also made was, whether, supposing the construction of the agreement to be decided in favour of the defendant's view, the parish were to be held bound by the alienation of the churchwardens and overseers in 1634.

These arguments are more fully referred to in the judgment, as are also some of the cases bearing upon the points raised."

Rolf, W. M. James and Selwgn for the relators. The Solicitor-General and Hobhouse for the defendant.

The cases (other than those mentioned in the judgment) relied upon were Grierson v. Eyre, 9 Ves. 341; Attorney-General v. Warren, 2 Swan. 302; Speer v. Crater, 2 Mer. 410; Wake v. Conyers, 1 Eden. 381; Miller v. Warmington, 1 Jac. & W. 489; Godfrey v. Littell, 1 Russ. & M. 59, 630; Attorney-General v. The South Sea Company, 4 Beav. 453; Attorney-General v. Pilgrim, 12 Ib. 57: Attorney-General v. Hall, 16 Ib. 318; Meur v. Bell, 1 Hare, 73; Attorney-General v. Hungerford, 2 Cl. & Finn. 357.