In one case a jury may according to the evidence find the custom one way or the other that is so, or that there is no such custom, because the evidence does not support it. case. As I have said, I have endeavoured, so far as I can, to find authority to guide me upon this question; but I confess I have been unable to find any authority, that is, any express authority, I can follow as a guide to me in any way; and, therefore, I am obliged to decide it in the best way I can, upon what I consider to be the strict and proper principle applicable to the Now, of course, when one is claiming an easement as against another—that is, claiming an easement, which is an infringement of the right of the property of that other and every easement is such-of course the right must be well established; and the question is, is the right of the plaintiffs well established? That, I have already said, depends upon this-does the lord, in whose position I am assuming these gentlemen to be, now hold, and are they, therefore, entitled to work, these mines by virtue of that estate or interest, whatever it is to be called, which was vested in the bounder? Now, as the bounder, when he pitches his bounds, and by reason of the lord neglecting to work within one year, goes on to work himself, derives nothing from the ord, so, when the bounder's interest ceases, the lord derives nothing from the bounder; he does not come in as of any estate or interest that the bounder had. In point of fact, the lord's position I conceive to be his-as long as the bounder has got his bounds at work, and as long as the right to the tin-bounds xists, it operates thus-it operates to the lord as imply an impediment to his using his ordinary right of working the minerals within the limits of the ounds which have been pitched; there is an impediment to his using what is his plain right by virtue of is ownership; when that impediment ceases, for that s the effect, as it appears to me, of the cession of the an-bounder's right, by reason of his ceasing to work, and abandoning his mine, it is simply the removal of the impediment which prevented the lord from using is right; but he uses the right which he had before the tin-bounder had any right at all. Except that ight to prevent the lord from exercising his right, the noment the tin-bounder's interest, whatever it is whether it is called an estate, interest, or right or icense-ceases, the lord's right continues, not as a ight derived from, and not by virtue of any estate or nterest derived from, the tin-bounders, but simply by virtue of an estate or interest which never was in he tin-bounder at all. That appears to me to be the conclusion at which I must arrive, in endeavouring to reason the matter but as best I can upon principle. I have not any doubt about the antiquity of the mine; it is quite long enough for this purpose; nor have I any doubt about the antiquity of the stream, or upon the question, whether it is a natural or an artificial stream. I think that makes no difference, but I consider it is a question upon the law of prescription. Now, according to the law of prescription as it stood before the Prescription Act, 2 & 3 Will. 4, c. 71, how would the matter have stood? Assuming that the party prescribing for the easement cannot prescribe in the persons-that is to say, by virtue of any right in himself or his ancestors before the time of legal memory-supposing he cannot so prescribe, which is the case here, and he is obliged to prescribe in a "que" estate, the party prescribing would have had to establish that he, and those whose estate he now has, have from the time whereof the memory of man runneth not to the contrary, enjoyed this easement. That claim might have been defeated in a great number of ways. The most common way in which such a claim was defeated was by shewing the origin of the enjoyment within the time of legal memory. But there were other ways of defeating it. It might be shewn, that although some persons may have enjoyed this right beyond the time of legal memory, yet those persons were not the persons whose estate you now claim under. That may be another way. There may be a number of ways of defeating a person's claim to an easement. I apprehend there is no doubt that if the statute had not passed it would be impossible to say that in this case the present owners, the plaintiffs, could say that they, and those whose estate they now have, have from the time when the memory of man runneth not to the contrary, had this enjoyment. Even assuming that the mine is older than the time of legal memory, and the enjoyment of the easement was before the time of legal memory, but still, I apprehend, if they could establish that, it never could be established upon principle that the enjoyment of it was in those whose estate the present owners, the plaintiffs, now have. Then comes the statute, the effect of which, I apprehend, is only to alter the time of prescription. It shortens it to different periods for different species of easements or prescriptive rights of this kind. The period which it fixes for ways and watercourses is a period of twenty years, and it is fixed in this way:It says, where a party claims by prescription, his claim shall not be defeated by merely shewing the origin of it at any time previously to twenty years. That is the effect of the 2nd section. Then comes the 5th section, which deals only with the mode of pleading. It leaves the question of right entirely untouched; I mean it leaves the question in what manner a person must establish his right by prescription just where it was. The only alteration, as it appears to me, the Prescription Act has made with respect to prescription, except as to pleadings, is this, that whereas you must before have shewn-not only pleaded it in many classes of actions, but have shewn-that those whose estate under whom you claim, or yourself, have from time immemorial enjoyed this easement, it is sufficient now to allege the matter generally, and to shew that it has been enjoyed for twenty years. But still it must be, that for twenty years and more it has been enjoyed by the party claiming it, and those whose estate he claims. Now, the plaintiffs have not enjoyed this, of course, themselves, for more than the last seven, eight, or nine years; then they must make up the rest of the twenty years, by shewing that it has been enjoyed by persons whose estate and interest they now have. As I have said, they are bounders or adventurers under the bounders. Have the plaintiffs the estate or interest, or whatever it is to be called, the rights which the bounders had? It appears to me they have not, and for that reason I am under the necessity of determining that the plaintiffs have not established their right to this easement; and the consequence is, that the bill must be dismissed. I do not see any reason why, with respect to costs, I can do otherwise than follow the ordinary rule, of dismissing the bill, with costs. VICE-CHANCELLOR STUART'S COURT. JOHNSTONE v. HAMILTON.-June 12, 22, and 24, and July 1, 3, and 4. Devise and bequest to executors-Secret trust-Leaseholds -Right of the Crown-11 Geo. 4 & 1 Will. 4, c. 40— Practice. W. B. devised and bequeathed the residue of his freehold, leasehold, and personal estates to five trustees (whom he appointed executors), four of them being ministers of the Presbyterian Church in London, and the fifth being, as well as the testator, a member of that church. The answer admitted that it was the expressed wish and hope of the testator, as to his residuary property generally, that his residuary legatees would make use of the same for the benefit of a Presbyterian college, to which he had been in his lifetime a large benefactor; and the trustees also admitted that they did not allege, or contend, or believe, that the testator intended them to enjoy the property beneficially. There were no next of kin :Held, that the bequest of the leaseholds was void, and that that portion of the residuary estate belonged to the Crown. - The Attorney-General had not been made a party to the suit, but had been served with the decree, directing inquiries:-Held, that rule 8 of sect. 42 of the 15 & 16 Vict. c. 86, does not bind the Crown, so as to preclude the institution, on behalf of the Crown, of further inquiries. The object of this suit was to ascertain the rights of the parties, of the Crown, and of the institution after mentioned, in the following freehold and leasehold estates-i. e. in the realty, and personalty savouring of realty, without interfering with the pure personalty. William Brownley, by his will, dated the 14th February, 1862, gave, devised, and bequeathed the rest, residue, and remainder of his estate, both real and personal (after payment of all debts and legacies), jointly to the Rev. James Hamilton, D.D.; the Rev. Thomas M'Crie, D.D.; the Rev. John Craig Duncan; the Rev. Charles Graham Scott, and John Johnstone, their heirs, executors, and administrators; and he appointed them executors of his will. John Johnstone, in June, 1864 (the testator having died in February, 1864), instituted this suit against his four co-executors, and, amongst other things, the bill stated that the four defendants were ministers of the Presbyterian Church, of which the plaintiff was a member; that they all were members of the council of the Presbyterian College-an institution situate in Queen-square, Bloomsbury, supported by voluntary contributions; that the testator in his lifetime was a very liberal contributor towards defraying the expenses of the college, and a great benefactor to the Presbyterian Church, of which he was a member; and that shortly before the execution of his will he communicated to the defendants, or some of them, his desire to devote, if possible, some portion of his property, after his death, for the benefit of the college, or to bestow some portion of his property upon the defendants and others for the purpose of enabling them to carry out, or to give better effect to, the intention and objects of the originators and supporters of the college; and that the plaintiff alleged that the defendants admitted that it was the desire or intention of the testator, in making the residuary bequest, that the residuary legatees should apply, for the benefit of the college, such portion of the residuary estate as was allowable by law; and that they admitted that it was the expressed wish and hope of the testator, that, so far as his residuary estate consisted of property which could not legally be given to charity, the devisees would nevertheless make use of the same for the benefit of the college. The bill also alleged, that the freehold and leasehold portions of the residuary estate were devised and bequeathed to the plaintiff and defendants, not upon any trust of or to such or the like purport or effect as aforesaid, but by the reason of the testator's knowledge of the sympathy of the plaintiff and defendants with his religious views, and his wishes in relation to the college; por and it prayed, that the rights and interests of all persons in, or with regard to, the said freehold hereditaments, and the said leasehold messuages, and other leaseholds devised and bequeathed by the will, might be ascertained and determined by the Court; and for these purposes, that all proper and necessary inquiries and accounts might be directed and taken. The defendants, by their answer, admitted that they believed that the testator, when he made his will, expected that they would apply such portion of his property "as they might lawfully and validly apply," or "s far as it would be allowable by law so to do," or " far as they might lawfully do so," for the benefit of the college; that it was the desire, and they think it probable that it was the intention, of the testator, that they should apply, for the benefit of the college, " some portion, and probably the whole of such tion, of the residuary estate as was allowable by law;" and that the expressed wish and hope of the testator was, that "as to his residuary estate generally, or some portion of it, and therefore, so far as it consisted of property, a devise of which to charity the law would render invalid," the residuary devisees would, nevertheless, make use of the same for the benefit of the college; but the defendants submitted, whether the same portions were devised and bequeathed upon any trust. The cause came on to be heard on the 2nd July, 1864, and on the 10th of the same month inquiries were directed for the heir-at-law and next of kin, and it was ordered that the Attorney-General should be served with that decree. The chief clerk, in December, 1864, certified that no person had come in, pursuant to the advertisements, and that he was unable to certify who were the testator's heir-at-law and next of kin. The cause came on to be heard (12th June) on further consideration. Malins, Q. C., and J. Napier Higgins were for the plaintiff, and stated the facts. Wickens, for the Attorney-General, submitted that he ought to have been made a party to the suit, and that there ought to be an inquiry as to the property comprised in the will, and as to the nature of the instructions under which the will was prepared. Craig, Q. C., and Potter were for the defendants. After some discussion, it was ordered that the pleadings should be amended, by making the Attorney-Ge neral a party to the suit. This was done, and inquiries were prepared on his behalf as to what real and per sonal estate the testator was seised and possessed of at his death, distinguishing pure personalty from that having relation to land; also, whether property given by the will to the plaintiff and defendants, or any and what part of it, was intended by the testator to be held or applied by them upon any and what trust. or for any and what purpose other than their indivi dual benefit; and whether there was any and what agreement or understanding between the testator and the plaintiff and defendant as to the purposes to which the property, or any part of it, should be applied. These inquiries were, on the 22nd June, objected to on behalf of the plaintiff and the defendants, on the ground that the bill alleged, and the answer admitted. freehold and personal estate, and that the Crown had no right to institute inquiries as to personalty or p perty not within the Mortmain Act. J. Napier Higgins submitted, that by sect. 42, rale of the 15 & 16 Vict. c. 86, service of the decree up the Attorney-General was sufficient to bind the Cros in the same way as if the Attorney-General had be originally made a party to the suit. Upon be served with the decree, two courses were open to the Attorney-General; either to have applied for the rehearing, or, if further evidence had been thought re . quisite, to have applied by summons at chambers to add to the decree. But it was not competent for the Attorney-General now to ask for these fresh inquiries. Sir J. STUART, V. C.-As at present advised, I do not think the proper course would have been for the Crown to have asked in chambers for an addition to the decree. If the Crown had asked such a thing, I should have refused it, on the ground that the inquiry, if any, ought to have been made the subject of discussion in court. I think it is quite open to the Crown to ask for further inquiries now. J. Napier Higgins objected that the inquiries proposed were oppressive and unnecessary. If the Crown wanted an inquiry as to the personalty, which amounted to about 20,000l. or 30,000l., an information should be filed; and as to the real estate, if the Court should decide that there was no secret trust, the first proposed inquiry would be wholly nugatory. The second proposed inquiry was rendered unnecessary by the admissions in the answer; and it moreover involved a question of law and not of fact. [He referred to the case of Lomax v. Ripley (3 Sm. & Giff. 48; 1 Jur., N. S., 272).] Wickens.-The Attorney-General practically repre sents the heir-at-law and the next of kin. Sir J. STUART, V. C., directed the matter to stand over, so that it might be ascertained from the defendants whether they claimed the property beneficially; and he said that, if they did, there must be further inquiries. July 1.-It was now stated that the residuary devisees and legatees met on the 28th June, and that they resolved upon the following admission:-" That the plaintiff and defendants do not allege or contend, nor do they believe, that the testator intended them to enjoy the testator's estate, or any part of it, beneficially." The result was, that, as to the freeholds, the Crown made no claim, it being admitted that, as the freeholds had been devised to trustees absolutely upon a secret trust, there was a good legal devise to them in trust for the heir-at-law, and that the Crown could not claim by escheat (Sweeting v. Sweeting, 33 L. J., Ch., 211); and that the only question was, whether the trustees could hold the leaseholds as against the Crown. Malins, Q. C., and Higgins submitted that the trustees were entitled, as the legal representatives of the testator, and where there was no trust upon the face of the will, to hold not only the freehold estate, but also the leasehold. As in the case of Lomax v. Ripley, this testator had given property to these trustees, knowing that the trusts would be carried into effect, and they claimed, as Mrs. Ripley did, to retain it, and to do that which they knew the testator would have done. The law, no doubt, was in a peculiar position, and the distinction between freeholds and other property was an anomaly. In the case of Middleton v. Spicer (1 Bro. C. C. 201) (to which all the law upon the subject was traceable), there was a gift upon an express trust, and both the trust and the gift were held to be void; and in all the cases in which it had been held, that where personal estate had been given to trustees upon trusts that failed, there was, in the absence of the next of kin, a resulting trust in favour of the Crown, were cases of express trust. (Taylor v. Haygarth, 14 Sim. 8; Barrow v. Watkin, 24 Beav. 1; Rittson v. Stordy, 3 Sm. & Giff. 230; 1 Jur., N. S., 771); Dacre v. Patrick son, 1 Drew. & S. 182); Read v. Steadman, 26 Beav. 495). In this case there was a secret trust, and the devise was good at law. (1 Jarm. Wills, 206, note (b); Doe d. Burdett v. Wrighte, 2 B. & Al. 710). The Crown could only claim this property by prerogative as bonâ vacantia, which was not the case here, as the plaintiff and defendants were in legal possession, and they were entitled to keep it. (1 Bl. Com. by Christian, 298; Burgess v. Wheate, 1 Eden, 177; Russell v. Clowes, 2 Coll. 648; Cox v. Parker, 22 Beav. 168; Cradock v. Owen, 2 Sm. & Giff. 241; Henchman v. The Attorney-General, 3 My. & K. 485). Craig, Q. C., and Potter submitted that the defendants had a good title not only as legatees, but as executors. The devise was perfectly valid, and not within the provisions of the Statute of Mortmain. The 11 Geo. 4 & 1 Will. 4, c. 40, expressly reserved the rights of executors where there were no next of kin. The only question was, whether the Court would raise a resulting trust in favour of the Crown where there were no heir-at-law and no next of kin. If the rule laid down in Middleton v. Spicer were, that the executors could not hold as against the Crown, still the effect of sect. 2 of the 11 Geo. 4 & 1 Will. 4 was to supersede that rule, and the bequest would remain good at law. But if the Mortmain Act applied, and the provisions in reference to express trusts did not apply here, then the bequest was swept away, and of executors. (Boson v. there remained a good will of the simple appointment Stratham, 1 Eden, 508; Adlington v. Cann, 3 Atk. 151; Powell v. Meritt, 1 Sm. & Giff. 381). Wickens was not called upon. stat. 11 Geo. 4 & 1 Will. 4, c. 40, I think it has entirely Sir J. STUART, V. C.-As to the argument upon the failed. The 2nd section of that statute I understand to amount to this, that it declares in what respect there shall be no alteration in the law, just as the 1st section states how the law is intended to be altered. My opinion certainly is very clear, that the doctrine in the case of Middleton v. Spicer, which has been so repeatedly acted upon, is the law of this Court; and that there is no just foundation for the argument, that the authority of that case was altered or intended to be altered in the slightest degree by the 2nd section of the 11 Geo. 4 & 1 Will. 4, c. 40. In the case of Muckleston v. Brown (6 Ves. 52), which is one of the most instructive cases of this kind, I understand the law to have been laid down in this way-that if a testator gives to executors, to whom he has applied to act as his trustees, the residue of his real and personal estate, and they agree to take upon them the execution of such trusts as he shall declare, i. e. not to take beneficially, and he happen not to declare any, the case is within the equity of this Court, and the heir has a right to be heard to say that no trust was duly declared. In this case these gentlemen, whether as executors or as devisées or legatees of the chattels real, which were assets of the testator, have admitted that the intention of the testator was a charitable purpose, and admitted, moreover, that there was no intention that they should take beneficially, and, therefore, it seems to me that this is a case in which the chattels real go to the Crown, and I shall make a declaration accordingly. I wish to express my opinion as to the propriety of the conduct of these gentlemen, in clearly and distinctly stating, both upon the bill and answer, what truth and honesty required they should state, though they were not legally bound to state it, in order to guide the decision of the Court. What they have got has been got in the most laudable way. The declaration will be, that these gentlemen take the freeholds; that the gift of the leaseholds is void, and that they belong to the Crown. Direct inquiries as to the leasehold estates, and an account as to the rents of the leaseholds, and reserve further consideration. VICE-CHANCELLOR WOOD'S COURT. Giffard, Q. C., for Mrs. Gregory, referred to Re Saril (10 Jur., N. S., 876). Osborne, Q. C., and R. C. Palmer, for Mrs. Jones. Will-Feme covert-Absolute gift-Restraint on alie- This fund should be paid out, as there is no restraint nation. Absolute gift by will to a married woman for her separate and inalienable use. The property having been paid into court under the Trustee Relief Act-Held, that it could not be parted with during coverture, but the dividends only should be paid to the wife. Petition. The question was, whether or not funds given absolutely to married women, but with a restriction on alienation, ought to be handed over to them or to be retained, and the income only paid during coverture. These were the facts: on anticipation. Judgment was reserved. July 26.-Sir W. P. WOOD, V. C., after stating the question, said-Having regard to the principles laid down in Baggett v. Meux, and which are founded on the doctrine of Tullett v. Armstrong, I cannot hold in the present case, that the property can be dealt with during coverture. This was the decision in Re Sarei and in Spring v. Pride (10 Jur., N. S., 646), the only other case on the subject, there was the same incon sistency, though that was a stronger case than this, as there was a power of disposition; and the Court reconciled the directions by holding, that the restriction applied during coverture, but did not extend beyond that period. In every case since Baggett v. Meur and Tullett v. Armstrong, the Court has sought to protect the wife during coverture; and, therefore, I cannot here part with the funds, and I shall order them to be retained in their respective investments, and the dividends only paid on the separate receipts of the married women during coverture. COURT OF QUEEN'S BENCH. Samuel Gaskell, by his will, dated the 6th May, 1861, after directing payment of his debts, and specifically devising certain hereditaments, devised and bequeathed all his real estate, and the residue of his personal estate, unto and to the use of the petitioners, John Travis and Mark Wilson, their heirs, executors, administrators, and assigns, upon trust to permit his wife to occupy rent free one of his houses, and out of the rents and profits of the residue of his real and personal estate, to pay her for life the sum of 20s. weekly; and if there should be any surplus, to pay also thereout 10s. weekly to Ann, the wife of Elijah Jones; such last-named weekly payment to be made into her own hands, free from the control or interference of any husband, and not to be anticipated or assigned over, or precharged in any way; and her receipt alone, given after any such weekly payment should have become payable, and not before, to be a sufficient discharge, and in trust to retain the residue, if any, of the said rents and profits until the decease of his wife, and from and after her decease, he declared that the annuity of 10s. to Ann Jones should cease; and he directed his trustees to sell his real and personal estate, and divide the proceeds between the said Ann Jones and Hannah, the wife of James Gregory, equally, share and share alike, and the issue of such of them as should be then dead leaving issue, such issue merely taking its parent's share; and he declared that the share of each of them, the said Ann Jones and Hannah Gregory, should be for their respective sole, separate, and inalienable use and benefit, and without being in any wise subject or liable to the debts, control, or interference of her then present or any future husband with whom office, and stabling, &c. of the plaintiff, and taking Trespass for breaking and entering a timber-yard. she might intermarry; and their respective receipts away fixtures, goods, and chattels of the plaintiff, alone, whether covert or sole, should be good and effec-keeping him out of the possession thereof, until be tual discharges for the same to the trustees; and he appointed the petitioners his executors. Landlord and tenant-Lease by one joint tenant to another Two of three joint tenants of property demised the same to Semble, that, assuming its invalidity, the plaintiff was estopped from denying the right of the lessors distrain. paid the defendant a sum of money, in order to regain counts for money had and received, and on account possession of them, whereby, &c. There were also stated. Pleas, to the first count, not guilty by stat. 11 Geo.2 debted. c. 19, s. 21, and to the remaining counts, never in at The testator Samuel Gaskell died in May, 1861, and his wife Nancy Gaskell died on the 6th February, 1864. The petitioners, on her death, in pursuance of the directions of the will, sold the property, and as doubts were entertained whether they could safely pay the moneys due in respect of their shares to Ann Jones At the trial, which took place before Mellor, J., and Hannah Gregory upon their sole receipts, or whe- the last Spring Assizes, holden at Manchester, it ap ther the moneys ought not to be invested, and the divi-peared that the action was brought in respect of an dends only paid to them during their covertures, they alleged illegal distress for rent, alleged to be due from paid the shares into court to separate accounts, and the plaintiff James Cowper to Joseph Cowper and now presented this petition, praying that the rights John Scholes Hague. and interests of Ann Jones and Hannah Gregory the action claimed 871. 7s. 6d., the amount of rest The particulars delivered it in the said trust funds might be ascertained and de- claimed, and 47. 138. 6d., being the expenses incurred in and about the distress. The facts were as follo By his will, dated the 28th August, 1855, Wilia Cowper, of Oldham, in the county of Lancaster, de vised to Joseph Cowper, and James Cowper (the plaintiff), and John Scholes Hague, all his real and personal estates, in trust to pay a legacy of 100%, and subject thereto, to pay and divide the residue unto and clared. Eddis, for the petitioners. The authorities shew, that when there is a restraint on anticipation by a married woman, it is held to apply to the corpus as well as to a life estate. (Tullett v. Armstrong, 4 My. & C. 377; Baggett v. Meux, 1 Coll. 138; 1 Ph. 627; Re Sykes's Trust, 2 Johns. & H. 415). equally amongst the grandchildren of his late brother Thomas, and his said brothers Joseph and James (the plaintiff), and their sister, in equal shares and proportions, as tenants in common. The plaintiff, with Joseph Cowper and John Scholes Hague, were also appointed executors under the said will. Shortly after the testator's death the personal property was converted into money, and divided amongst the cestuis que trust; but the real property, including a timber yard and premises at Oldham, remained unconverted in the hands of the trustees, it having been agreed between the parties interested under the will, that it should be let to a tenant. Accordingly, the following proposal was sent by the plaintiff to his co-executors:"Gentlemen,-I, having entered upon the slate trade, and having had the offer of a yard for a timberyard, before accepting the same, wish to make some proposal to you. I will take all the slate and timber belonging to you at the yard and station at Oldham, at a valuation to be made by one person, if we can agree upon one; and if not, then each party to appoint one, and they can appoint an umpire before they commence; the said valuer or valuers to be empowered also to fix the annual rent I shall pay for the timber-yard, office, and stabling, and for a term of years to be fixed upon between us. I will receive the rents of the houses and cottages at Oldham, free of expense to you, and see that they are kept in repair, as you request. The amount of the value to be secured to your satisfaction, or paid in a month from the delivery of the valuation. I must have an answer in a few days from this date, or I shall consider this offer is rejected. "Yours &c., (Signed) "JAMES COWper. "Oldham, Oct. 18, 1855." The following document was afterwards signed by the three co-executors: "We, the undersigned executors of the late William Cowper, deceased, do hereby agree to the proposal of Mr. James Cowper, hereunto annexed, on condition that the slate in transitu, and also all the plant, moving stock, and effects belonging to the deceased's trades (excepting the grey mare), be included therein, and taken by the said James Cowper, on the terms contained in his said proposal, and that he do take the timber-yard, office, and stabling, as a yearly tenant And it is hereby further agreed between all parties undersigned, that the valuation referred to in the said proposal shall be made by a person to be nominated by the undersigned John Scholes Hague, the decision of which person in the premises shall be fixed and binding upon all parties; the payment of the amount of the valuation to be made or secured as in the said proposal is mentioned. "Dated this 1st day of November, 1855. (Signed) "JOHN SCHOLES HAGUE." A valuer appointed by the parties, in pursuance of the above agreement, fixed the rent of the timberyard, cottages, &c., at 1801., and the plaintiff entered into possession. In November, 1862, the plaintiff having become irregular in his payments, and the sum of 2701, the amount of a year and a half's rent, being due, a distress for that sum was levied, but was paid without sale. In May, 1863, the rent was again in arrear, but was not pressed for, and in September of that year the plaintiff became bankrupt. His assignees entered upon possession, and paid all rent in arrear and accruing due during their holding. In November the plaintiff re-entered into possession, and in May, 1864, another distress was levied upon the premises in question for rent in arrear. The plaintiff, in order to get rid of the distress, paid the amount, and then commenced the present against the defendant, who, as the bailiff of Joseph Cowper and John Scholes Hague, had levied the distress. A verdict was entered for the defendants, with leave to the plaintiff to move to set it aside and enter a verdict for himself, on the ground that although Joseph Cowper and John Scholes Hague might, by agreement with the plaintiff, their co-tenant, give him, as against themselves, exclusive possession of the joint property, yet that the agreement did not create such a tenancy as carried with it a right to distrain. Brett, Q. C., obtained a rule accordingly; against which R. G. Williams (Edward James, Q. C., with him) shewed cause. The letters which passed between the plaintiff and the other joint tenants of the property distrained upon taken in conjunction with what subsequently took place, were amply sufficient to create a tenancy between the parties, subject to the question, whether the relation of landlord and tenant can legally subsist between the parties. There is authority for the affirmative of this proposition. In 1 Bac. Ab., tit. "Leases," the law on the subject is thus laid down:-"If one joint tenant or tenant in common makes a lease for years of his part to his companion, this is good; for this only gives him a right of taking the whole profits, where and before he had but a right to the moiety thereof; he may contract with his companion for that purpose as well as he may with any stranger;" for which is cited Co. Litt. 186. a. Pleadal's case (2 Leon. 159) also throws light upon the question. There the case was, “That a man seised of lands in fee took a lease by indenture, of the herbage and pannage of the same land. It was the opinion of the whole Court that the same was no estoppel to him to claim the soil of the freehold; and it was said by Plowden, and agreed by the Court, that if the father and son be joint tenants for a hundred years, and the son takes a lease of his father for fifteen years, to begin &c., the same shall conclude the son to claim the whole or parcel of it by survivor." [Blackburn, J.-In James v. Portman (Ow. 102), Popham, C. J., says, "One joint tenant may make a lease to the other, although he cannot infeof; for a lease is but a contract," referring to 11 Hen. 6, 33; and this so far is in your favour; but, in the same case Fenner, J., doubts "whether one joint tenant could make a lease to the other, but said, that by the contract he had excluded himself from the profits. And by the 39 Edw. 3, 27, one joint tenant may have an account against the other."] Then, secondly, assuming the lease to be void, the plaintiff, having enjoyed the possession of the premises under the agreement, and paid rent, is estopped from denying the tenancy. Brett, Q. C., in support of the rule.-Before the creation of the so-called tenancy, the executors, as joint tenants, were in possession of each and every part of the premises distrained upon; the plaintiff, therefore, in point of law was in possession of the whole. [Blackburn, J.-Not more so than the other joint tenants. None of the parties were in sole possession.] All that was done between the parties was simply that, under an agreement, two of the joint tenants withdraw, leaving the third in sole possession, but this is not by law equivalent to the granting of a lease. [Blackburn, J.-The case in 11 Hen. 6, 33, turned upon a point of pleading only, but nevertheless it was relied upon as the authority for the passage in Co. Litt. 186. a. :-" And one joint tenant may let his part for years or at will to his companion."] That must be construed to mean, that one joint tenant may lawfully contract with the others for the sole posses |