clares that neither of them should have a power of disposing of the lands, or the rents, issues, or profits thereof before they came of age. That is a power of disposing of that which was in them in right of their dominion over the estate which was vested in them. I think there is quite enough in this instrument, both in the previous and subse quent parts of it, to control the general words of gift; it is, at all events, capable of being moulded into what I before thought it to be-a tenancy in common; and therefore the former direction which I gave will remain. I am glad that the case has been spoken to again, because I felt some difficulty as to that case of Kenworthy v. Ward, and I am quite sure that by my present decree I am carrying out the real intention of the testator. very nearly the words of the instrument, except that of the whole, but of his or her share, and he dethey are all in one sentence. The Vice-Chancellor says: "It is contrary to the rule of law that persons who are to take at different times, can take as joint tenants. To make them take as joint tenants, the property must be vested at once. From the necessity of this case the children who attained twentyone, must take as tenants in common." So that, even if I held that one child attaining the age of twenty-one was entitled to an estate in possession, it does appear that there are grounds for holding that there was a tenancy in common, and not a joint tenancy created. The distinction is a very narrow one, and I am not sure that I have come to a right conclusion on it. The result is, that I think the first child attaining twenty-one took a vested interest, while the other would take but a contingent interest until she attained twenty one. And, in that view, the case would fall within the authority of Woodgate v. Unwin. Upon these grounds it would follow that the respondent is entitled to a moiety, and the petition must be dismissed, but without costs, and the trustee must have his costs. I am quite prepared to have the case spoken to again, if the parties think right; because the matter appears to me to be involved in considerable difficulty. Nov. 11.-The case was re-argued by J. A. Lawson, Q.C., for the petitioner, and F. Fitzgerald, Q.C., for the respondent. Nov. 17.-LORD CHANCELLOR.-In this case of Hickson v. Hill I remain of the impression which I formed of the case upon the first hearing-that the estate given to those two children was substantially an equitable tenancy in common. The case reduces itself now to a very narrow compass, having regard to the rule recognised and confirmed in Kenworthy v. Ward-that the circumstances of the estates vesting at different times will not of itself create a tenancy in common, where parties claim under the same conveyance and same limitations. It is always a question of construction in these cases, whether a joint tenancy or tenancy in common has been given, having regard to the language of the instrument, and in that view the direction to convey here would prima facie create a joint tenancy. But, looking to what was done in the prior parts of the instrument, it appears to me very plain that all the parties contemplated was a tenancy in common. The circumstances adverted to have relieved the case from all difficulty as to there being a period during which the application of the rents was unprovided for; and, therefore, during the minority of the son it was plainly a case of tenancy in common. That being so, what is there to change the destiny of the estate, when it becomes absolutely vested in them? No doult, the conveyance is to be made to them, their heirs, executors, administrators, or assigns; but that limitation is followed by provisions which show that the settlor contemplated interests belonging to those children respectively during the lifetime of their mother, which they might dispose of not only by deed, but by will. That is not a mere power, because it is a power which was to be exercised not MANSERGH v. FITZGERALD.-Nov. 19, 20. Landlord and tenant-Lease-Renewal-Notice of demand- M., a minor and ward of the court, was entitled to a renewabis Quære, whether the service of the notice by F. was not a con tempt of court. con By indenture of the 1st April, 1767, William Wilson demised to Thomas O'Dwyer the lands of Cullen, situate in the County of Tipperary, taining 14A. 2R. 32P., to hold to the said Thomas O'Dwyer, his heirs and assigns, for three lives; and the said indenture contained a covenant on the part of William Wilson, for the perpetual renewal of the lease, upon a payment of a fine of £2 on the fall of each life. By indenture of the 3rd June, 1811, Lady Caroline Damer, in whom the interest of William Wilson had become vested, executed to Morgan O'Dwyer, who was then entitled to the lessee's interest, a renewal of the lease of the 1st April, 1767, for the lives of Morgan O'Dwyer, Thomas O'Dwyer, and Bryan Keatinge O'Dwyer. The Earl of Portarlington subsequently became entitled to the interest of Lady Caroline Damer, the court for that purpose, commenced proceedings, The respondent, by his answering affidavit, de- and his interest was purchased in the Incumbered Estates Court by Patrick Fitzgerald; and by a deed of the 11th January, 1841, the interest of Morgan O'Dwyer was conveyed to the Rev. James Mansergh. The Rev. James Mansergh died in April, 1847, leaving his widow, Catherine Mansergh, and four infant children-Daniel, Owen Lloyd, Nicholas, and Catherine Mansergh. By an order of the 21st January, 1850, these four children were made wards of Court; and in the minor matter, Richard Pennefather Lloyd was appointed guardian of the fortune; Catherine Mansergh was appointed guardian of their persons, and William Hunt receiver. All the lives named in the last renewal dropped, but no one acting for the minors, as the petition alleged, became aware of that fact until the year 1855, when a notice of the 30th October was served by Patricktioner.-There has been no delay in the case suffiFitzgerald on the receiver only, stating the death of the lives, and calling upon him to pay the rent, renewal fines, and interest, and take out a renewal within one month from the date of the notice. On the 8th November a notice in reply was served by the receiver, asking for particulars of the demand, which were furnished on the 13th November; and, by letters bearing date the 19th and 28th November, the receiver's solicitors stated that no time should be lost in bringing the claim before the court. A statement of facts were then prepared by the receiver, which was lodged in the Master's Office on the 3d December; and on the 11th December, the matter having been brought before the Master, he directed a petition to be presented, praying, among other matters, for a reference to inquire whether it would be for the benefit of the minors that a renewal should be obtained, and on the next day Mr. Fitzgerald's solicitor was informed of this order. On the 17th January, 1856, a petition was presented: on the 22d an order directing the reference sought for was made, and on the 25th a summons was issued to take the Master's directions under this order; but, owing to the state of business in the Master's office, the matter did not come on until the 9th February, when the Master directed a case to be submitted to counsel to advise on the proceedings proper to be taken. In consequence, as the petition alleged, of the obscurity in which Mr. Mansergh's affairs had been left, and the difficulty of procuring information, the case was not prepared, and opinion of counsel obtained thereon, until the 29th April, 1856. The matter was then again brought before the Master, and a draft report was prepared, but it was found necessary to present further petitions, and obtain further orders of the court; so that the report, which was signed on the 18th September, was not confirmed until the 5th November. Patrick Fitzgerald and his solicitor were, during the whole period, aware of the pendency of the proceedings. A draft fee-farm grant was then prepared, and, on the 24th January, 1857, tendered to Fitzgerald's solicitor, for his approval, who returned the draft, with an intimation that Fitzgerald considered himself no longer bound to renew. On the 15th May P. Fitzgerald, without having obtained the leave of cient to work a forfeiture, for the receiver could not have taken a step, without the authority of the court; it should be ascertained whether it was for the benefit of the infant that the renewal fines should be paid. The court deals with the funds of the minor, and the receiver could not have made any payment. The demand was made only on the receiver, which is clearly not a sufficient demand within the Tenantry Act. The receiver is only an officer of the court. He has no power to make lettings, or take surrenders, but must manage every thing under the control of the court. Chambers on Infancy, 361. Angel v. Smith (9 Ves. 335); Smith v. Shannon (3 Ir. Eq. 452); Watkins v. Lloyd (5 Ir. Eq. 244). The argument ab inconvenienti proves too much, for in every case where there is a receiver, an application must be made to the court for liberty to bring an ejectment. The delay in this case was the delay of the court; and at all events was not fraudulent or wilful, which it is essential it should be. Palmerston v. Corporation of Dublin (Lyn. App. lxxiv.); Shenton v. Corbally (2 Dow. 444); Jackson v. Saunders (1 Sch. & L. 443); Barrett v. Burke (5 Dow. 1). The Solicitor-General (Christian), D. Sherlock, Q.C., and J. B. Murphy, for the respondent, contended that the service of notice upon the receiver was sufficient. Butler v. Portarlington (4 Ir. Eq. Rep. 1). The delay in this case was more than sufficient to work a forfeiture, and the parties were aware it was intended to insist on the notice. LORD CHANCELLOR.-Upon the first opening of this case, I was impressed with the consideration that it was one of very serious importance. It struck me very early in the discussion, that it was a case of great importance, as well upon the construction of the Tenantry Act, as upon the position of the court itself, under the circumstances that have taken place. This is a petition filed by a minor, by his guardian, as his next friend, seeking to have a renewal of this interest, the reversion on which is vested in the respondent, and to which the respondent is absolutely entitled, unless there are circumstances in the case sufficient to displace his right. It is also very clear, that the demand of renewal fines is of the precise amount due, and the statement with regard to the lives is quite correct; and, therefore, the respondent is in no possible brg the or profits thereof before they or purchased in the very nearly the words of the instrument, except that of the whole, but of his or her sha Nov. 11.-The case was re-argued by son, Q.C., for the petitioner, and Q.C., for the respondent. Nov. 17.-LORD CHANCELLOR.Hickson v. Hill I remain of the i formed of the case upon the fir estate given to those two chil an equitable tenancy in con itself now to a very narro to the rule recognised a v. Ward-that the c vesting at different t tenancy in commor same conveyanc always a questi whether a joir been given, instrumen convey tenanc prior very ter tc P State re., and that he report in respect deferred until all were d thence delay occurred nd have occurred, if this had 443 referred to the Master, and, I art for that prop THE IRISH JURIST. rick Fitzgerald; and by son Mansergh, and four file a constety, to enforce a perma of the 1st Apri, 1757 Md 1.4 ཐ སྙ།། made wards against. P. hus rul, and it payed a deart Suit. Lord Eldon decided Suction existed; and he accordingly the same rule as to both, and held the practice to be, that where there was a receiver in possession, an ejectment should not be brought without the leave of the court. He said "It is clearly a contempt of this court to disturb sequestrators; and the party cannot claim, though by an adverse title, in any other way than by coming to he examined pro interesse suo. Consider the consequences. How are sequestrators to defend their could have made an order at these parties defend as landlord? After the tenants a proper application to the possession against an ejectment? How can any of renewal taken out; but, however, have attorned to the receiver, the court is the landof the court the matter lid lie over bort. With regard to a sequestration, le passé able time. The landlord had notice" I have no doubt, having in my former practice paweedings care to put paid were pending, and, he never intervene; he never came to the himself in privity with its proceedregard to what was going on, no had considerable occasion to consider that, and I am of opinion that where sequestrators are in possession under the process of the court, but espe cially where they are in possession for the purpose en he once served a notice in the minor matter. of raising a duty, that is, a sau derned, drie the amount of fines, and insisting on their possession is not to be disturbed, even by an adverse Ultimately, from the forms of the court, title, without leave; upon this principle, that the occurred, and thus the matter stands; possession of the sequestrators is the possession of landlord insisting upon his right to a forfeiture, the court. On the other hand, there is obvious wider all the circumstances of the case, he can be tried is pure matter of title, that can be tried in ad the court being called upon to say whether, convenience and justice, where the question to be permitted to insist on that right. That appeared ejectment, in saying the mode of examining him to me to be a very serious question: in the first pro interesse suo should be by giving leave to bring place was the landlord right in confining his an ejectment, the court taking care to protect the emand of renewal fines to a demand upon the possession by giving proper directions." He says receiver? Practically Practically the readiest way of then-"There may be inconvenience in that, but a demand put in course of realization, the inconvenience the other way is enormous. If it if it be not a demand which the receiver is is necessary to ask leave, the court must have credit getting himself bound to discharge, as head rent, or tithe för never refusing it, where it ought to be granted; THE IRISH JURIST. the interest of Morgan petition in reference there to having k Fitzgerald; and by a deed by ejectment, for the recovery et 1 las, petitioner was ort.th. April, 1700 The present petition was then the by Pan pist. P. Fitzgerald, and it tom renewal of the v great purposes of convenience may pointment of the receiver, must, before he can preputting the party to ask for it.' sume to take any steps of his own motion, apply olies only to ejectments, but the to this court for leave to assert his right against 'pped with ejectments-every the receiver. That is a plain rule, and a very qually taken care of by the necessary rule: it is not a rule of arbitrary authority, wis (3 Hare, 472), some- but it is absolutely necessary; because, if it were to what has taken place otherwise, it would be impossible for this court to stated the facts). The administer justice between parties." Then, again, the court did not allow we have the same doctrine laid down by the Master to be interfered with of the Rolls, in Ames v. The Trustees of the Birkener claiming para-head Docks (20 Beav. 332), where he held that the the receiver was possession of the receiver could not be interfered laiming a right with, although a question might arise as to the session of the validity of the order under which he had been receiver was appointed. These cases have gone no farther er left him than establishing that a party will not be allowed and, the to disturb the possession, and therefore that the ply for landlord was guilty of a contempt by bringing his legal ejectment, and are in that respect distinguishable re- from the present. The landlord was equally in ng contempt by serving his notice to quit; and, therefore, if I had only to consider the question of restraining the ejectment proceedings, I should have no difficulty in doing so upon a motion in the minor atter, but the parties have prætermitted all that, the matter comes before me in another shape, ompels me to consider the abstract question far these principles will bear upon the facts of this case. The position of wards of this court is e eject- perfectly well established. No one will be allowed u not come to the to interfere with their persons without the sanction ase of Russell v. The East of the court. I do not see why the court should Company (3 Mac. & G. 104), pro- be less chary of their property than of their persons. ne possession of a receiver appointed by The notice, if valid, must have the effect of deterthe court in a suit, was seized by the sheriff under mining the right, and is served only on the receiver, writs of fi. fa., issued by judgment creditors of the who may or may not know whether he ought to defendant; and the court there would have attend to it or not, and who may or may not have granted an attachment against the sheriff, had money in his hands; and shall the court allow the he not come to the court and submitted to its property to be lost through his neglect? The authority. The Lord Chancellor says there, in landlord may serve the notice upon the receiver, page 118 of the report "In the present case but it is another question whether he can make it it would have been perfectly open to the plain- available without coming to the court, and asking tiffs in the execution to have applied to this for payment. I think that it is a very serious court to he heard pro interesse suo, or to have question, and one which, if this case were confined been heard on a summary application for leave to to that abstract question, would be a question of levy under their execution, notwithstanding the great difficulty, but upon which I entertain a strong possession of the receiver. There is no instance in opinion. If the landlord comes to the court, he which justice may not be readily obtained by puts himself in the position of having the title persons who are supposed to have their rights in- discussed as against the minor. The court is comterfered with, by an order or process issued by this petent to do that, and will do it in a proper case by court. Thus, I find in one case, where a party the institution of a plenary suit. If he comes to wished to destrain for rent or property in the posses-demand the fines, the court will have it in its sion of a receiver, that the court, being satisfied that the legal right of distress was paramount to the title of the party for whose benefit the receiver was appointed, allowed the distress to be made." So he goes on, and lays down the rule as I have stated it. In Hawkins v. Gathercole (1 Drew. 12), where a subsequent incumbrancer, with notice of the appointment of a receiver in a former suit, issued a sequestration, it was held that this amounted to a contempt of court, and the ViceChancellor there said "The party, thinking he has a right paramount to that of the receiver, or rather to that of the person who has got the ap power to try the question whether each life in the lease has or has not fallen. In this case that question does not arise, but is it to be said that the landlord, outside the court, can determine that question, which the court has no knowledge of? There seems to me to be great difficulty in determining a notice on the receiver to be sufficient. I will not assume that the landlord, serving notice of demand, wanted merely that which he was justly entitled to, his money. That very threat of disturbing the possession appears to me a thing which the court will not allow. The demand in this case has not been made on the tenant, or his assignee, or on the pay the rent-charge, is to call on the receiver to bring the default, and is entitled to demand his fines, and |