1832.

DOE

defendant to move to enter a nonsuit, it being contended Exch. of Pleas, that she was a stranger to the legal estate, and so that a right of re-entry could not be reserved to her. Doe d. Barber v. Lawrence (a), Doe d. Barney v. Adams (b). Humfrey having obtained a rule accordingly.

Hoggins shewed cause.-The statute of uses does not apply to this, which is leasehold property; and the trustees having joined in the lease with the lessor of the plaintiff, the rent being payable to her and her son, the assent of the trustees to the receipt of rents by the lessor of the plaintiff appears by the lease, and an assignment by them to her must be presumed. It was the intention of the testator, as evinced by the words "on trust to permit and suffer (the lessor of the plaintiff) to receive the rents" during her life or widowhood, to vest in the widow an estate for life, defeasible by her second marriage: and so she has the legal estate, and a power of re-entry might be reserved to her. But the intention of the parties to the lease was, that the lessor of the plaintiff should receive the rents and profits, and should re-enter on their nonpayment. It thus operates as an assignment from the executor to the lessor of the plaintiff for her life, and as a lease from her to the defendant during her widowhood. In Burton v. Barclay (c), a deed was allowed to have the double operation of passing a fee, and also a chattel interest, in order to carry the intent of the parties into effect.

[Bayley, B.-The bequest of a leasehold to the trustee vests the legal estate in the trustee. Comyns, in his Digest, tit. Devise (I) says, "A devise to B. to the use of another is good to the cestui que use;" and in tit. Uses (C), he affirms that a man may raise uses by will, for he may

(a) 4 Taunt. 23.

(b) 2 C. & J. 232.

(c) 5 Moore & P. 785; S. C. 7 Bing. 760.

d.

BARKER

บ.

GOLDSMITH.

Exch. of Pleas, devise lands to the use of another: but he there speaks of interests of immediate freehold.]

1832.

DOE

d.

BARKER

v.

GOLDSMITH.

Humfrey contrà.-The lease recites the interest of Mrs. Barker, and shews that it is equitable only. A power of re-entry cannot be reserved to a stranger to the legal estate: but, if her estate is sufficient to support such a power, so will that of her son Henry Barker, though it only arises on her death or second marriage. The defendant, by executing the lease, is not estopped from shewing, that, upon the face of the lease executed by Mrs. Barker to him, she shews herself to have no title. And the assent of the trustees, might apply with equal effect to the case of Doe d. Barber v. Lawrence.

BAYLEY, B.-If this had been a lease from these parties in their own names simply, without disclosing on the face of it the rights which they individually possessed, the demise by Sarah Barker, as surviving lessor, might have been sustained; because the lessee would, in that case, have been estopped from saying she was not his lessor. But the lease does disclose what the title of the lessor is, and describe Roberts as surviving executor of W. Barker. It discloses also the bequest to Sarah Barker as his widow, with reference to this property, and describes it as leasehold for the residue of a term. Roberts therefore was the surviving executor, in whom alone was vested the legal interest; and it was his lease only in law, though in terms the lease of Sarah Barker, for it operates only as a confirmation by her.

The devise is to the executors, on trust to permit the lessor of the plaintiff to receive the rents of this leasehold for her life or widowhood, and its effect at law was to vest the legal estate in Roberts and Shirven, and in the personal representative of the survivor of them, and to give Mrs. Barker an equitable right only during her life or

1832.

DOE

d. BARKER

v.

GOLDSMITH.

widowhood. It would be contrary to the trust given to the Exch. of Pleas, executors, that they, or either of them, should convey to her the legal estate. An assignment is a species of conveyance which is not to be presumed, and is not within the contemplation of the parties. This lease operates at common law; for, the statute of uses applies to freeholds only and does not comprehend copyholds and leaseholds. Then, as, under the statute of uses, by a devise of freehold to A. for the use of B., B. takes the legal estate, and A. is the conduit pipe merely; so, at common law, if a leasehold is bequeathed to A. to the use of B. the legal interest is in A. and not in B. Therefore, in this case, it appears on the face of the lease in question that the legal estate was in J. Roberts, and in him only, so that, on his death, it devolved to his personal representative, he having survived the other trustee.

There may be purposes for which a testator might wish the legal interest to remain in the trustees in order to control Sarah Barker's occupation, though he might intend her to have the beneficial interest; but here there is no evidence of his intention to give Sarah Barker a life estate. Then, if so, the lease operates as a lease by Roberts and a confirmation by the others. That a stranger to the legal interest, whose real title is disclosed on the lease cannot re-enter under a power to that effect, is clear in the case of Doe v. Lawrence. The ejectment will not lie; and the rule for a nonsuit must be made absolute.

BOLLAND, B., and GURNEY, B., concurred.

Rule absolute.

Exch. of Pleas, 1832.

An attorney, having transacted common

law, as well as conveyancing

and other busi

ness, not tax

able, delivered

a bill for all the

common law business, which his

client examined

and admitted to

be correct, and, on application for payment, directed the at

for him a sum

JAMES V. CHILD.

THE plaintiff, an attorney, was employed by the defendant from the year 1822 until about April, 1825, in conveyancing business; before the year 1828, in prosecuting and defending actions at law; and, in 1828, in preparing conveyances. In September, 1828, the plaintiff made out and delivered to the defendant a separate bill for the law charges, amounting to 100l. 3s. 1d., with a statement that some few charges were to be added for agency. The defendant examined and admitted the bill, and requested the plaintiff to raise for him 1007. on his bond, which was done torney to borrow in November following; and the amount, with 17. 9s. 6d. of money, which before received, placed by the plaintiff to the defendant's done, and credit credit. At this time, the bill for conveyancing had not given to him in been delivered, and the plaintiff had been referred to a third party for payment of a part of it, which third party the plaintiff had ineffectually sued at the defendant's inpayment of any stance. Subsequently, the plaintiff brought his action to charges for con- recover 521. 10s., as appeared by the particulars, for conveyancing. The whole debt was 1647. 14s. 6d., including tion for the resi- 57.11s. for raising the 1007., and 67. 10s. the agent's chargdue of his dees, for preparing and engrossing a warrant of attor mand:-Held, that he had no ney, not included in the bill delivered. After the action right to separate the common law was commenced, the plaintiff, by his particulars of demand, and conveyanc- abated the 57. 11s. included in the first account, in order

was accordingly

account for that

amount; subse

quently, on failing to obtain

part of his

veyancing, the

attorney

brought an ac

ing bills, and to

appropriate the to apply that sum to the sum of 67. 10s. then due in re

sum credited in

discharge of the spect of taxable items. No signed bill had been delivered

former; and,

therefore, that pursuant to the statute.

he could not sus

tain an action,

These appearing to be the facts at the trial before Bolwithout deliver- land, B., at the last Pembrokeshire Assizes, the plaintiff was nonsuited, because the warrant of attorney was said to be a taxable item-Sandom v. Bourn (a); Wild v. Craw

ing a signed bill,

pursuant to the statute.

Semble, that the drawing and

engrossing a warrant of attorney is a taxable item.

(a) 4 Campb. 68.

1832.

ford (a); Ex parte Prickett (b); and, because the plaintiff Exch. of Pleas, could not separate the conveyancing from the common law charges, and should have delivered a bill embracing the whole-Hill v. Humphreys (c), Thwartes v. Mackerson (d), Benton v. Garcia (e), Walt v. Collins (f).

In moving for a rule to shew cause why the nonsuit should not be set aside, and a verdict entered for the plaintiff, or a new trial had, John Evans urged the plaintiff's right to appropriate the payment to the common law bill; and said that the case of Sandom v. Bourn, relied upon by the defendant as an authority to shew that preparing a warrant of attorney constituted a taxable item, had been questioned by Bayley, J., in Burton v. Chatterton (g), and by Alderson, J., in Smith v. Taylor (h). He also insisted that the plaintiff might recover for the conveyancing, though the defendant owed him money for the common law business, which, no signed bill having been delivered, could not be recovered-Mowbray v. Fleming (i), Heming v. Wilton (k).

Chilton shewed cause.-Lord Ellenborough, in Sandom v. Brown, and Lord Tenterden, in Wild v. Crawford, were of opinion that the preparing a warrant of attorney was a taxable item, and, acting upon that opinion, nonsuited the plaintiffs in each of these cases. The rule as laid down by Alderson, J., in Smith v. Taylor, viz. that business in order to be taxable must be done in Court, seems to be too limited. The cases do not support it. Thus, business done at the Quarter Sessions, Clark v. Donavan (l), and in the

(a) 2 Stark. N. P. 538.

(b) 1 N. R. 266.

(c) 2 B. & P. 343.

(d) M. & M. 199.

(e) 5 Esp. 149; 11 East, 287, n. (f) R. & M. 284.

(g) 3 B. & Ald. 437.

(h) 5 Moore & P. 66; S. C. 7

Bingh. 264.

(i) 11 East, 285.

(k) M. & M. 199.

(1) 5 T. R 694. And see the same point determined by the Court of Common Pleas in Sylvester v. Webster, 2 Moore & Scott, 506.

JAMES

บ.

CHILD.