facturing purposes; and therefore it is said, that inasmuch as this copper smelting is carried on in what the appellant contends is a fit place, it may be carried on with impunity, although the result may be the utter destruction of the value of the plaintiff's property. I apprehend that that is not the meaning of the word "suitable," or the meaning of the word "convenient," when the law is laid down on the subject. The word "suitable" unquestionably cannot carry with it this consequence-that a trade may be carried on in a particular locality, the consequence of which trade may be injury and destruction to the neighbouring property. Of course I except the cases where any prescriptive right has been acquired by a lengthened se of the place. On these grounds, therefore, shortly, without dilating further upon them, as they are sufficiently unfolded by the judgment of the learned judges in the court below, I advise your Lordships to affirm the decision of the Court below, and to refuse this appeal, and to refuse it with costs. Lord CRANWORTH.-I entirely agree with my noble and learned friend, and also in the opinion expressed by the judges, that this has been considered to be the proper mode of directing a jury, as Mr. Baron Martin said, for the last twenty years; I believe I should have carried it back rather further. I have always understood that the proper question was, and I cannot do better than adopt the language of Mr. Justice Mellor -It must be plain that persons using a lime-kiln, or other works which emit noxious vapours, may not do an actionable injury to another; and that that place where it is carried on so that it does occasion an actionable injury to another, is not, in the meaning of the law, a convenient place." I always understood that to be so; but, in truth, as was observed in one of the cases by the learned judges, it is extremely difficult to lay down any actual definition of what constitutes an injury, because it is always a question of compound fact which must be looked to, to see whether or not the mode of carrying it on did or did not occasion so serious an injury as to interfere with the comforts of life and enjoyment of property. I perfectly well remember, when I had the honour of being one of the barons of the Court of Exchequer, trying a case in the county of Durham, where there was an action for smoke in the town of Shields. It was proved incontestibly that smoke did come, and in some degree interfered with a certain person, but I said, "You must look at it, not with a view to the question, whether, abstractedly, that quantity of smoke was a nuisance, but whether it was a nuisance to the person living in the town of Shields," because if it only added in an infinitesimal degree to the quantity of the smoke, I thought that the state of the town rendered it altogether impossible to call that a nuisance. There is nothing of that sort in the present case; it seems to me that the distinction, in matter of fact, was most correctly pointed out by Mr. Justice Mellor, and I do no think he could possibly have stated the law, either abstractedly or with reference to the facts, better than he has done in this case. Lord WENSLEYDALE.-I entirely agree in opinion with both my noble and learned friends in this case. In these few sentences I think everything is included: -"The defendants say, if you do not mind you will stop the progress of works of this description. I agree that that is so, because, no doubt, in the county of Lancaster, above all other counties, where great works have been created and carried on-works which are the means of developing the national wealth, you must not stand on extreme right, and allow a person to say, 'I will bring an action against you for this or that, and so on.' Business could not go on if that were so. Everything must be looked to from a rea sonable point of view; therefore the law does not regard trifling or small inconveniences, but only regards sensible inconveniences which sensibly diminish the comfort, enjoyment, or value of the property which is affected." I do not think that the question could have been more correctly laid down by any one to the jury, and I entirely concur in the propriety of dismissing this appeal.-Appeal dismissed, with costs. Note for reference-s. C., 4 B. & S. 616; Com. Dig., "Nui sauce." ROLLS COURT. GRANT v. GRANT.-July 7, 8, and 10. Husband and wife-Gifts by husband to wife--Separate property-Evidence of. In order to constitute a valid gift from husband to wife there must be some clear and distinct act by which the husband divests himself of the property, and engages to hold it as trustee for the separate use of his wife. It is not necessary that he should deliver the property to a trustee for his wife; but to establish the fact of the gift, the testimony of the wife must be corroborated by clear and independent evidence. Motion for decree.-This bill was filed praying a declaration that the plaintiff was entitled to certain specific chattels, and that the defendant might be ordered to deliver them to the plaintiff. In 1857 the plaintiff intermarried with Mr. Robert Grant; previously to 1863, when they went to reside abroad on account of the ill health of Mr. Grant, they resided at Nuttall Hall. Mr. Grant died abroad, in October, 1863. By his will he gave to the plaintiff a life interest in 30,0007., and appointed the defendant his residuary legatee and sole executor. It was admitted that the general furniture at Nuttall Hall passed to the defendant, but the specific articles were claimed by the plaintiff, as having been given to her as presents by her husband previously to and after their marriage. They were eleven in all, and consisted of statuettes, piano, pictures, &c., and for the most part formed part of the furniture and ornaments of a room at Nuttall Hall, known as the Boudoir. The circumstances under which the plaintiff claimed these several articles, and the evidence in support of her claim, are fully stated in his Honor's judgment. Hobhouse, Q. C., and W. W. Karslake, for the plaintiff, cited Lucas v. Lucas (1 Atk. 270); Graham v. Londonderry (3 Atk. 393); and Mews v. Mews (15 Beav. 529). Selwyn, Q. C., and Kay, for the defendant, cited Maclean v. Longbands (5 Ves. 71) and Walker v. Hodge (Swab. 92). July 10.-Sir J. ROMILLY, M. R.-After reading the evidence, I have come to the conclusion that the plaintiff is entitled to a decree. It has been properly observed on both sides, that in cases of this description, in equity, the question is merely one of evidence, and that it cannot be disputed that a husband may be a trustee for his wife. This is perfectly settled; and the only question is, whether he has constituted himself such a trustee or not. I apprehend that in this case the fact of the transaction taking place between the husband and the wife, and not between strangers, does not make any difference, further than this, that in the case of a gift of chattels by one stranger to another, in order to make the gift complete, there must be a delivery of the chattels; whereas in the case of husband and wife there cannot be a delivery, because, assuming they are given to the wife, they still remain in the legal pos session of the husband; and therefore it is impossible to give that completion to the gift that would take place between strangers. This case comes under that class of cases where it has been held, that though there is no absolute delivery, a declaration of trust would be sufficient; and the only question here is, whether the husband has used words which are equivalent to a declaration of trust. In the first place, there need not be any writing. That is quite settled by the authorities. They must be clear, unequivocal, and irrevocable; but it is not necessary to use any technical words; it is not necessary to say, "I hold the property in trust for you;" or "I hold the property for you, for your separate use." Words that shew that the donor means, at the time that he speaks, to divest himself of all beneficial interest in the property are, in my opinion, sufficient for the purpose of creating the trust. I am also of opinion that it is sufficient for the purpose of shewing that the trust has been created, if the husband afterward states that he has so created, though there were no witnesses except the donee present at the time the trust was created. For instance, A. has 10007. standing in his name; in the presence of witnesses, or in writing (it does not matter which), he says to B., "I hereby give you 1000l. Consols now standing in my name in the books of the Governor and Company of the Bank of England," in my opinion that would constitute A. a trustee for B., and the gift would be complete. I think that is what is established in Ex parte Pyje (18 Ves. 140), on which I have had to comment very often in many other cases. I am of opinion that it would be just the same if A. was asked by C., "Have you given the stock standing in your name to B.?" and B. said, in reply, "Yes, I have given it to B., and it is his property." I am also of opinion that if, without being asked, he had voluntarily said, "I have given the 10007. Consols standing in my name in the books of the Governor and Company of the Bank of England to B.," that would constitute a valid declaration of trust of the stock. As I have said, it must be final, irrevocable, and complete. It will not do to call it by the name of a person, because that might be ambiguous. That might be evidence corroborative of something else, and very often it is; but the mere fact of calling stock or a chattel by the name of B., saying "That is B.'s statue, or carriage, or stock," does not necessarily make it the property of that person. Neither does an express declaration of intention to give it, because the thing is not complete. But if the donor make an express declaration that "I do now give it," I am of opinion that is sufficient. I am also of opinion it is sufficient if he makes a declaration—" I have already given it;" and the only matter that is necessary to be known is, does the donor by these words mean to divest himself of the whole of the property in question? I asked with confidence, what does a husband mean when he says to his wife, "I give you this vase or this chandelier ?" Does he mean to say that he keeps any property in it for himself? If so, he means what the words do not import, when he expressly says, "I give it to you." There may be in some cases an implied condition between husband and wife, that he is to be at liberty to make use of it when he requires it during his life; but even that implied condition does not exist unless it is expressed or understood by both parties at the time. It is very possible that would be so, but it must depend upon the nature of the property. In all these cases the difficulty is as to the proof, and that is the next question to be considered. It is a rule well recognised, that the unsupported testimony of any person on his own behalf cannot be safely acted on; if it were otherwise, a stranger might come and say "The deceased person owed me a sum of money, and I claim it." The question is naturally asked, "Was there any writing?" The mere declara tion is not sufficient, and this Court does not listen to it. Though in many cases this rule may operate to prevent a person from receiving what he is entitled to, the Court cannot act on that unsupported testi mony. In this case I could not act on the uncorroborated testimony of the wife; but, in my opinion, the is sufficient evidence here to support her testimony, and, indeed, to prove the case without her testimony. I will refer to the various passages in the eviden which, in my opinion, establish that the property is hers, and then I will refer to the two cases of Me Mews and Walter v. Hodges, to shew how easily these are distinguishable from the present case. Take first the case of the statuettes. In the first place, the wife swears that these were given to her but Mrs. Lafon says this-"I paid a visit to Nuttall Hall in September, 1862, when Mr. Grant took me through the reception rooms, and shewed me everything in them, particularly pointing out to me his presents to Mrs. Grant on her marriage, namely, the beautiful statuettes of Highland Mary and Lavinia, which he distinctly told me he had given to her." Why am I to doubt this lady? This lady says, "He tol me he had given them to her." Then he had created himself a trustee for her. That confirms the wife's statement, and it is still more strongly confirmed by Mr. Spence, the sculptor, who says that "they were ordered for her, and intended to be given to her." That of itself would not be conclusive; but when the donor tells a lady of his own accord, "I have given them to my wife," and the sculptor says they were ordered for her, and intended as a marriage present for her, then the trust is, in my opinion, established. There is other corroborative testimony of the sister of the plaintiff, but I prefer this independent testimony. That puts an end entirely to an observation which Mr. Selwyn made, which I think could scarcely be sup ported in law, that if a man makes a wedding present to a woman to whom he is engaged, the fact of marriage revests the gift in him, and he becomes entitled to it himself. It is not necessary to refer to that, be cause it is clear the statuettes did not arrive till after the marriage. There is not the same clearness with respect to the two marble pedestals, but it is quite clear that they must go with the statuettes. Mr. Gundry, the sculp tor, says-" I remember the two statuettes Mr. Grant requested me to make, and I accordingly made a pair of antique pedestals for the said statuettes. I remember Mr. Grant saying to me that he had seen the statuettes in Mr. Spence's studio at Rome, and that he had told Mr. Spence that if Mrs. Grant liked them he would buy them for her, and that he had accordingly done so." That is a confirmation, though not quite so strong as that of Mrs. Lafon; but I am of opinion that this addition to the statuettes must be treated as an addition to the original gifts, and musi pass with the original gift. The next article which I have to refer to is the piano. It is mentioned in that very passage I have read before from Mrs. Lafon's affidavit:- The piano, which he told me he had given to her on condition that she would play in the presence of other persers besides himself," which condition she performed. Here is evidence of an express statement by him that be gave it to his wife. With respect to the soufflé dist and the hash dish, they rest on still stronger evidence; for in the first place Miss Bailey, the sister of the plaintiff, says "I first saw the hash dish or breakfast dish in the autumn of 1862, on the breakfast table at , Oct. 14, 1865. Nuttall, and my brother-in-law told me that he had to the statuettes, the marble pedestals, the two pieces of plate, the piano, the Bohemian glass service, the marble dessert service, the picture of the Madonna, and two of the engravings, her testimony is so amply and entirely confirmed, I shall trust her word with respect to the other two pictures, and give the whole of them to her. I will make a decree accordingly, with costs. I wish to make some additional observations with reference to the two cases above mentioned. In Mews v. Mews, it is clear that why I considered the case was not proved was this. All that happened then, as I said, was, that the money was allowed by the husband to be in the name of his wife at his banker's; but he never stated that he had given it to her. He knew of it perfectly well; he sanctioned it, and she was in the habit of drawing upon it; but upon his deathbed he treated it as his own, and thereby contradicted the evidence of his wife in respect of it. I made this observation, “The evidence which is required to constitute a valid gift, as I have before stated, is, that there must be some clear and distinct act, by which the husband has divested himself of the property, and engaged to hold it as a trustee for the separate use of his wife. I have looked in vain through the evidence to find any such clear and distinct act on his part. If he had himself deposited the money with bankers, or with those gentlemen quasi bankers, stating that they were to hold it for his wife, that would probably be sufficient for that purpose." That observation I confirm. I am of opinion that there are here distinct and unequivocal expressions, and that unless technical words are required, nothing more can be requisite With respect to the marble dessert service, the Bo- than for a man to say, "I have given this property to hemian glass service, and the two services of plate, if my wife. I have divested myself of all interest in it; it were necessary, the donor has really created the it is her's, and her's only;" and any words that are butler a trustee for the plaintiff of this property. equivalent to that are sufficient for the purpose. In There is an express declaration that they were her's, Walker v. Hodge, the wife said that her husband had and it meets exactly the case which I stated in Mews given her a pocket-book containing bank-notes; if it v. Mews, where I observed, that if the husband had stood on that alone, as I have already stated, the stated to the banker that the money was his wife's, Court could not proceed on the unsupported testithat would probably be sufficient. Here he does ex-mony of the wife. That would be sufficient, if conpressly state to another person that they are his wife's. firmed. She brought a lady, a friend of her's, who In addition to that, he puts them in the butler's was present, to confirm it; but the lady's confirmation charge, and tells him to keep them for his wife. It is was this, "I give it to you, in case any accident should scarcely necessary to go further. With respect to the happen to me;" which is a very different thing from picture of the Madonna, the butler says, "Mr. Grant a gift; and if a gift at all, it was a donatio mortis told me it was his wife's, that he had given it to her." causa. So that, in point of fact, there was no eviIn addition to that, Mr. Maclure says, "I remember dence in that case to support the gift. If the evidence Mr. Grant telling me that the little cabinet picture of of the wife had been confirmed by the other witness, the Madonna della Sedia and the piano belonged I am of opinion that her case would have been made to Mrs. Grant, and that he had given them to her." out. I am of opinion that it is made out here, and the necessary consequences must follow. I think this embraces all the articles, with the exception of the four pictures. With respect to the two pictures, the Midsummer Night's Dream and Miss Nightingale at Scutari, Miss Plummer says, "I was present in May, 1861, and saw Mr. Grant give to his wife the engraving of Miss Nightingale at Scutari as a present." Miss Poole also says, "I recollect hearing Mr. Grant say that the engravings of Midsummer Night's Dream and Miss Nightingale at Scutari, were birthday presents from him to his wife." I do not find, though it may be that I have overlooked it, the same confirmation as to the two other pictures, the Rescue and the Sanctuary; but considering that the wife's testimony in all other respects is so entirely supported, and that she swears positively to these gifts, and that the other witnesses state that they were as presents of the husband's, though these two gifts are not confirmed, I shall trust to the evidence of the wife, and treat the whole of these four pictures as gifts to her. If these two had stood alone, and that had been the whole question, it would have been perfectly different; but considering that, with respect FORRER V. NASH.-July 12, 13, and 15. Specific performance-Inability to perform contract before bill filed. The plaintiff, who was a lessee, entered into an agreement to let a part of the premises to the defendant, with the option of taking a lease for twenty-one years. The defendant subsequently discovered that the plaintiff's own lease was for twenty-one years and a quarter, and that the covenants were such as to prevent him from granting the proposed lease. After some negotiations he broke off the contract. Bill for specific performance dismissed, with costs, although the plaintiff was able, before the hearing of the cause, to grant the lease on the terms of the agreement. Motion for decree.-This was a suit for the specific performance of an agreement, dated the 2nd September, 1864, by which the defendant agreed to take from the plaintiff certain premises at No. 2, Hanover-street, Hanover-square. "To Mr. Antoni Forrer. with some "We have received draft lease from you surprise. If you will refer to Mr. Nash's letter to Mr. Forrer, you will see that the proposal was for a tenancy with an option, on Mr. Nash's part, of taking a lease, should he be so disposed; and we understand that the instructions were before you to prepare an agreement for carrying that out. Mr. Nash does certainly not propose to take the lease immediately. Of should require to inspect the lease under which Mr. course, before the formal agreement is signed, we Forrer holds. The agreement had better specify pretty clearly, though concisely, the clauses to be inserted in the lease; several of those contained in your draft lease are directly opposed to the stipulations of Mr. Nash's letter, and would not be agreed to. Mr. Nash would prefer reducing the premium from 350l. to 250! and the increasing the rent 107. per annum." Sir,-I hereby agree to take from you the ground floor and the rooms in the basement, with all their fittings, fixtures, &c., as undermentioned-ground floor, shop, three rooms, galleries, and little area near the desk, basement, kitchen, and one room cellar, of the premises now occupied by you, being No. 2, Hanoverstreet, Hanover-square, W. I agree to pay you 3501. per annum, with a rental of 2107. per annum, free from all rates and taxes from Michaelmas-day, 1864, with right to a lease of the above-named premises, for seven, fourteen, or twenty-one years, when I desire it. Also with right to relet the premises, if I desire, for any business that will not interfere with Mr. Forrer's business, nor involve any material alteration of the present possession on payment of them. All skylights to remain as they are, and no light to be obstructed at any time. I agree that no show beyond On the 15th September the defendant's solicitors my name and trade shall appear on the shop or enwrote to the plaintiff's solicitor as follows:trance of the premises. I undertake to pay the rent "Mr. Nash was here yesterday, and said by equal quarterly payments of 527. 10s. on the usual letter ready to send us, which he had seen, but we quarter days; the first payment to be made on Christ-have not received. We shall certainly not advise Mr mas-day, 1864. Satisfactory change of references. (Signed) "WILLIAM NASH. "ANTONI FORRER." The plaintiff was, at the date of the agreement, lessee of the premises for a term, whereof twenty-one years and a quarter were then unexpired, and the lease under which he held contained covenants restraining him from permitting any person carrying on any trade or business except that of a jeweller or artist in jewellery and hair, and from underletting the premises, or any part thereof, without the landlord's written consent. On the 3rd September the plaintiff wrote to the defendant, as follows:-"The inquiry this morning as to your respectability and responsibility is so satisfactory, that I appoint Tuesday, the 6th September, 1864, at twelve o'clock, to receive the premium and give you possession of the premises. There are two or three verbal additions to make (viz.), that the term I am to grant you shall not be beyond the Christmas-day, 1884; and that after the words, nor interfere with Mr. Forrer's business; nor thereby break any of the covenants in Mr. Forrer's lease.' Upon receipt of this letter the defendant went to the plaintiff and expostulated with him, that no agreement had been sent, and that the premium was demanded without any evidence of the plaintiff's ability to grant the lease. On the 9th September, further correspondence having taken place between the parties in the meantime, the plaintiff's solicitor sent a draft lease to the defendant's solicitors, with a letter, in the following terms: office of the plaintiff's solicitor, and was there shewn & On the 14th September the defendant called at the letter, which was intended to be sent to the defendant's solicitors, in which his right to see the plaintif s lease was disputed. you had a Nash to pay a large premium to Mr. Forrer, a gentle man who is, we doubt not, highly respectable, but of whose private means we know nothing, without ascer taining that Mr. Forrer has power to grant the lease, for the option of which we are stipulating. As regards the question of lease or agreement, we have to observe, that Mr. Nash being about to resume business, after being out of it some time, wishes to see whether his old connexions remain by him before he binds himself to a lengthened term. This clearly appears from his letter to Mr. Forrer; and it is this proposal that we have to attempt to carry out. We must request a definite reply by Saturday, as Mr. Nash has to make some decisive arrangements on that day." The plaintiff's solicitor then prepared a fresh draft agreement, and sent it for the approval of the defendant's solicitors. The plaintiff's lease had in the meantime been inspected, and the draft was returned very much altered, and accompanied with several requisitions; in particular, they required the plaintiff to procure from the landlord an undertaking, that in the event of the plaintiff perfecting his lease, he (the landlord) would adopt the defendant as tenant, on the terms specified in the defendant's agreement, and also a license, dispensing altogether with the restrictive clauses in the plaintiff's lease. In consequence of the alterations and requisitions so made by the defendant's solicitor, the plaintiff's solicitor, on the 22nd September, wrote to them as follows: "I have received your letter of yesterday, and draft of the new agreement altered; and I have seen Mr. Forrer thereon. The alterations made by you in the "Herewith I beg to send you a draft lease of the draft are so extensive, and those alterations, and the part of the house No. 2, Hanover-street, which Mr. requisitions contained in your letter, so inconsistent Forrer has agreed to let to Mr. Nash, and Mr. Nash with the agreement already signed by the parties, has agreed to take. This draft is prepared in con- dated the 2nd instant, and so impossible to be agreed formity with Mr. Forrer's lease, and with the agree-to by Mr. Forrer, that, on behalf of Mr. Forrer, there ment between him and Mr. Nash, and I trust we shall is no alternative but to withdraw this new draft, and find no difficulty or delay in settling it, as it appears proceed on the agreement already signed; and I beg Mr. Nash is anxious to complete, and Mr. Forrer is to withdraw this new draft accordingly. This draft equally so. And thus, on the lease and counterpart was only sent to you at your request, and in compli being executed, and the 3507. and the costs paid by ance with Mr. Nash's desire to have a more formal Mr. Nash, the matter can be completed, and Mr. Nash agreement than the one already signed; and on behalf let into immediate possession." of Mr. Forrer I have to call on Mr. Nash to at once carry out the agreement of the 2nd instant; and I beg to give you notice, that Mr. Forrer is ready to deliver In reply to this the defendant's solicitors wrote, on the 10th September 14 up possession of the premises to Mr. Nash immediately on receiving the 350l. premium, and I request an appointment for Mr. Nash attending on the premises for that purpose. You have, on the part of Mr. Nash, declined a lease of the premises, but Mr. Forrer is ready to grant a lease for the term stated in the agreement of the 2nd instant, when required by Mr. Nash so to do." On the same day the defendant's solicitors wrote in reply as follows: In reply to your letter, dated this day, in which you rely on an alleged agreement, signed by the parties, dated the 2nd instant, we beg to remark, that, according to your own shewing, you have not the power to carry it out. Your client has not got the term which, by that alleged agreement, it appears he was to have granted to Mr. Nash, nor has he the power to comply with that very important stipulation, that Mr. Nash is to have the right to relet the premises, if he desires, for any business that will not interfere with Mr. Forrer's business. Under these circumstances, we, on Mr. Nash's behalf, decline to pay the premium. We may add, that the principal alterations made by us in your draft agreement, and stated by you to be inconsistent with the alleged agreement of the 2nd instant, are mere attempts on our part to concede to your client certain stipulations in his favour which the alleged agreement of the 2nd instant does not contain. Unless some communication from you in the course of to-morrow should alter our views, we shall consider the whole negotiation at an end." Accordingly on the 23rd September the plaintiff's solicitor wrote as follows: In reply to your letter of yesterday, I beg to say that Mr. Forrer considers that the agreement of the 2nd inst. is binding on Mr. Nash, and that he cannot withdraw from it, and Mr. Forrer requires Mr. Nash to carry that agreement out forthwith, by paying the premium, 3501., and taking possession of the premises. Mr. Forrer will be prepared, when required by Mr. Nash, to grant him a lease for the full sum mentioned in the agreement; and if Mr. Nash should wish to relet the premises to any respectable person for any business, that would not interfere with Mr. Forrer, Mr. Forrer will consent to do all that is necessary to carry that stipulation into effect. If Mr. Nash does not forthwith carry out the agreement of the 2nd inst., and pay the premium, Mr. Forrer will have no alternative but to take proceedings against Mr. Nash for the recovery of the 3501." The defendant's solicitors then wrote in reply to the above: "Your letter, dated this day, is not more satisfactory than those that have preceded it. It merely states Mr. Forrer's willingness to carry out the alleged agreement, without shewing that he has the power to do so. Mr. Nash cannot be kept in a state of uncertainty any longer; and we, therefore, adhere to our letter of yesterday, definitely declining any further negotiation." This bill was filed on the 7th October. With regard to the landlord's consent, in September, 1864, he wrote as follows to Mr. Forrer: "I hereby consent to your granting a lease of part of the premises, No. 2, Hanover-street, which you hold of me under a lease, dated the 25th March, 1862, to Mr. Nash, and hereby also consent to his carrying on the business of a tailor in that part of the house, No. 2, Hanover-street, which you intend to let to Mr. Nash; and I give this consent in pursuance of the terms and conditions contained in the said indenture of lease." On the 21st April, 1865, the landlord filed an affidavit which, after referring to the agreement of the 2nd September, contained the following passage: "I have been and am ready directly to do all acts necessary for enabling the plaintiff to perform in all respects on his part the said agreement with the defendant." Southgate, Q. C., and E. K. Karslake, for the plaintiff. Selwyn, Q. C., and Eddis, for the defendant. Sir J. ROMILLY, M. R., said-I am of opinion that the agreement of the 2nd September is good and sufficient, so far as the mere form of it is concerned, but at the time of entering into the agreement the plaintiff had not the power to perform it. It is like the case of a man agreeing to sell what does not, in fact, belong to him. If the defendant had proceeded in the transaction, his acceptance of the agreement or of the lease would have been a waiver on his part of the landlord's concurrence, and after taking possession he might have been turned out of the premises without any remedy. In support of the plaintiff's case, an affidavit is produced containing the landlord's consent, but that affidavit was not filed until April of the present year. If the consent had been obtained in September, while the transaction was on foot, there would have been an end to the question. But how long was the defendant to wait in doubt? The consent given by the landlord in September was not sufficient; and the plaintiff cannot make his case good now, as the letters of the 22nd and 23rd September shew that the parties have been dealing at arm's length with each other. The case of the plaintiff entirely fails, and the bill must be dismissed, with costs. VICE-CHANCELLOR STUART'S COURT. Re THE RESIDUARY TRUST ESTATE OF GEORGE BULLEY, and re THE 10 & 11 VICT. c. 95.—July 21. Will-Construction-Remoteness. A testator bequeathed the residue of his estate to trustees to his daughter for life, and after her decease to her husband for life, and directed that the moneys vested in their names should be paid to the surviving children of his daughter as soon as they should attain the age of twenty-two; that the share of any child dying before that age should go amongst those who should attain twenty-two; and that only the interest of the shares should be paid to the children before they attained twenty-two-Held, that the bequest was void on the ground of remoteness. Petition. By his will, dated the 20th November, 1816, the testator, George Bulley, after making certain pecuniary and other bequests, gave and bequeathed the residue of his estate to trustees, in trust to pay the interest and dividends to his daughter Mary Hayward for life; and after her decease to her husband for life; and he then directed "that the said moneys so vested in the names of my said trustees, or the survivor of them, or the executors or administrators of the survivor, shall be by him or them paid to all and every surviving children or child lawfully begotten on the body of my said daughter Mary Hayward, share and share alike, as near as my said trustees, or the survivor of them, his executors or administrators, can ascertain, as soon as they shall arrive or come to the age of twenty-two years respectively, and not to go to his or their heirs or assigns for any other person or persons on any pretence whatsoever; that is to say, the share of such child which may happen to die after the decease of the said Mary Hayward, and before it shall arrive or come to the age of twenty-two years, shall go amongst the other children or child who shall arrive or come to the age of twenty two-years, share |