Hensman v. Fryer, 17 L. T. Rep. N. S. 394; L. Rep. 3 Ch. 420;

Gibbins v. Eyden, 20 L. T. Rep. N. S. 516; L. Rep. 7 Eq. 371.

So far as we

rely upon Hensman v. Fryer, it is not affected by the decisions in Collins v. Lewis (L. Rep. 8 Eq. 708), and Dugdale v. Dugdale (27 L. T. Rep. N.S. 705; L. Rep. 14 Eq. 234). The decision in Dady v. Hartridge (32 L. T. Rep. N. S. 7; 1 Dr. & Sm. 236) has not been followed. Tombs v. Roch had nothing to do with the question

now before the court, as to con

tribution between specific and residuary devisees. We submit that the case is governed by Hensman v. Fryer, and that the real estate comprised in the residuary devise, and that which passes under the specific devise must contribute rateably towards the payment of the debts. As to the plaintiff's unsuccessful claim as a creditor; if he had been an outside creditor his claim would have been dismissed with costs; he is in no better position in consequence of his being a party to the suit, and must therefore pay the costs of his fictitious claim.

Kay, Q.C. in reply.-The rule that real estate in a residuary devise is applicable for payment of debts in priority to real estate specifically devised is clearly laid down in Brownson v. Lawrance (18 L. T. Rep. N. S. 143; L. Rep. 6 Eq. 1, 5). The decision in Hensman v. Fryer (sup.) is clearly erroneous, and has never been followed.

The VICE-CHANCELLOR said.-The true rule with respect to contribution is that stated in Tombs v.

Roch (sup.). A testator by making a specific devise thereby expresses his intention that the devisee shall enjoy that specific portion of his property. It would be contrary to justice and to all the cases cited to hold that a specific and residuary devisee must contribute rateably. The specific devisees are entitled to hold their gifts, and not until the residuary estate has been exhausted can they be called upon to contribute towards the payment of debts. With respect to the costs of the plaintiff's unsuccessful claim, I do not think it would be just to make him pay costs, but he will not be allowed any.

Solicitors for the plaintiff, Monckton, Long, and Co., agents for Sankey, Son, and Flint, of Canterary.

Solicitor for the defendant, J. Henry Jones.

[V.C. H.

pay the premiums, and they were paid by the mortgagees. On the death or C. the mortgagees claimed to be repaid out of the policy moneys the sums they had advanced for keeping the policy on foot, with interest at five per cent.

Held that they were entitled to immediate payment of the premiums paid by them, with interest at four per cent., and to a charge for the remaining one per cent. upon the reversion of the policy moneys.

THE question in this case turned upon the right of the mortgagees of a reversionary interest of a policy of assurance, to be repaid out of the policy-. moneys during the lifetime of the mortgagor, the premiums they had paid for keeping the policy on foot. The facts were these:

By a settlement made in Dec. 1847, on the marriage of the defendants, Mr. and Mrs. Chetham, the former assigned to trustees (of whom the defendant Downing was now the sole survivor) all his interests under the will of his grandfather upon trust, after the death of his mother, or sooner with her consent, to convert the same into money, and to invest the proceeds, and to pay the income to Mrs. Chetham for her life for her sole and separate use, and after her death in trust to hold the capital and income as she should by deed or will appoint, and in default of appointment, in trust for the person or persons, including any husband of Mrs. Chetham, who would be entitled to her personal estate at her death in case she died intestate. Mrs. Chetham assigned unto the same trustees a policy of assurance granted to her on the life of ber mother (who was a party to the settlement) for 4991., subject to the payment of an annual premium of 201. 19s. 2d. (Mrs. Chetham, in fact, being a trustee for her mother). The trustees were directed, after the death of Mrs. Chetham's mother, to get in the policy moneys, and to invest and hold them upon trusts similar to those above mentioned. Mr. Chetham covenanted with the trustees to pay the annual premiums, to keep on foot the policy, and not to do anything whereby the policy might become void. It was declared that the trustees might, if they should think fit, apply any part of the income of the trust property in payment of the premiums. Notice of the assignment of the policy was given to the assurance company.

In 1853 Mr. Chetham deserted his wife, and ceased to pay the premiums on the policy, and to contribute anything towards his wife's support.

By a mortgage made in Oct. 1866, in consideration of certain sums of money advanced by the plaintiffs to Mrs. Chetham's mother, and which had been employed in the maintenance of Mrs. Chetham, the latter appointed that the 4991. to arise from the policy should be held by the trustees of the settlement for the benefit of the plaintiffs, in order that they might retain and satisfy all sums advanced by them with interest at 51. per cent. Notice of this deed was given to the surviving trustee of the settlement and the Assurance Company.

In Dec. 1866, Mrs. Chetham's mother executed a deed of composition, whereby she compounded with her creditors for 2s. 6d. in the pound. The deed provided that the payments to the creditors should be without prejudice to any securities held by them. The plaintiffs received certain dividends under this composition. From the date of the mortgage down to the time of the death of Mrs.

Chetham's mother, the plaintiffs paid all the premiums due on the policy, all other persons interested therein having refused to do so.

Mrs. Chetham's mother died in June 1871, and after her death the assurance company paid the 4991. to the surviving trustee of the settlement, who paid it into court.

Thereupon the plaintiffs filed the bill in this suit against the surviving trustee of the settlement, and Mr. and Mrs. Chetham, praying for an account of the premiums paid by them (the plaintiffs); for a declaration that they were entitled to be repaid the moneys advanced for keeping the policy on foot, with interest at 5 per cent., and that the balance of the policy moneys might be secured for the benefit of themselves and other persons interested under the settlement of 1847, and for consequential relief.

Dickinson, Q.C. and Joliffe for the plaintiffs, submitted that they were entitled to the decree prayed for, with the exception of the 5 per cent. interest. As to that, the authorities seemed to show that they could only claim 4 per cent. at at the present time, and they therefore asked to be allowed the extra 1 per cent. on the death of Mrs. Chetham.

F. T. Prior for Mrs. Chetham, contended that the plaintiffs were not entitled to any of the money expended on the premises until after the death of Mrs. Chetham. Neither the settlement nor the mortgage deed authorised them in making the payments, but they had done so voluntarily, and for their own benefit. They must now add hem to their security. He cited

Shearman v. British Mutual Life Assurance Company, 24 L. T. Rep. N. S. 570; L. Rep. 14 Eq. 4; Clack v. Holland, 19 Beav. 262;

Burridge v. Row, 1 Y. & Col. C. C. 183. Lindley, Q.C. and Whitehead, for the trustee. The VICE-CHANCELLOR.-The question in this case is one of lien. There has been, no doubt, a salvage of the policy by the plaintiffs by the payment of the premiums, and they are entitled to be repaid the money they have thus expended. It has been contended that there is no provision either in the settlement or the mortgage deed for the payment of the premiums by the plaintiffs. Now, although the settlement provides that the premiums are to be paid by the husband, and in default out of the trust moneys, it does not say that they shall not be paid in any other way, and therefore does not exclude the equitable right of the plaintiffs to the claim they now seek to establish. I think they are entitled to be immediately repaid out of the policy moneys the sums they have paid, with interest at 4 per cent., and also to a charge for the extra 1 per cent. upon the reversion of the fund as provided by the mortgage deed. The fund, subject to what I have said, must remain in court, and become payable at the death of Mrs. Chetham.

Solicitors for plaintiffs, Bower and Cotton, for Gill, Radford, and Gill, Manchester.

Solicitors for defendants, G. J. Browlow, for R. Brown, Stockport.

Jan. 29, 30, and 31, and Feb, 11.

DE LISLE v. HODGES.

Power of appointment-Appointment of specified sums and residue-Deficiency-Abatement. An appointor by deed appointed specified shares of

[V.C. H.

a trust fund of Consols, "or other the stocks, funds, and securities of which the same should then consist, or thereafter should or might consist, or upon which the same, or any part or parts thereof, should then, or thereafter should or might be invested," to appointees, named, and the residue to C. At the date of the execution of the deed the appointor was aware that the fund had diminished in value, through re-investment, and at the time of his death it proved insufficient to satisfy the specific appointments irrespective of the residue. Held, that it must be distributed rateably amongst the appointees, exclusive of C.

THE question in this case turned upon the construction of an appointment, under a deed poll, made by Richard Hodges, in pursuance of a power vested in him. The facts were these:

By a settlement executed on the 20th May 1822, a sum of 37,914l. 138. 9d. Consolidated Three per Cent. Annuities was vested in trustees in trust for Richard Hodges for life, and after his death, in the events which happened, in trust among his nephews and nieces as he should by deed or will appoint, power being reserved to the trustees to reinvest the trust funds with the consent of Richard Hodges. In 1827 a further sum of 8001. Consolidated Three per Cent. Annuities became vested in the trustees upon the same trusts and powers, and the two funds then amounted together to 38,7141. 138. 9d. Consolidated Annuities. In 1853 the trust funds, in consequence of a change in the investment, was represented by 27,1701. 158. 4d. Consolidated Three per Cent. Annuities and 80001. secured on mortgage, and they continued in the same state until the death of Richard Hodges.

66

or

By the deed in question, executed on the 30th Nov. 1870, it was recited (inter alia) that Richard Hodges was desirous of revoking certain other revocable appointments previously made, and of appointing the two original trust funds, viz., the 37,9147. 138. 9d. and 8001. Consols, amongst his nephews and nieces in the shares and proportions, and in the manner thereinafter expressed, the deed proceeded to revoke the said appointments, and in pursuance of the said desire, and in consideration of the natural love and affection which Richard Hodges had for his nephews and nieces, appointed that after his death the trustees should hold the 37,9141. 13s. 9d. Consolidated Three Cent. Annuities, per other the stocks, funds, and securities of which the same should then consist or thereafter should or might consist, or upon which the same or any part or parts thereof should then or thereafter should or might be invested" upon the same trusts thereinafter declared concerning the same. And an appointment was then made of the 8001. Consols on the same terms. The deed then proIceeded to declare that the direction and appointment of the said two sums of Consols was so made, that the said two sums should be held by the trustees upon the trusts following, viz., as to the sum of 70001. Consolidated Annuities part of the said two several sums of 37,9141. 138. 9d. and 8001. Consolidated Annuities or other the stocks, funds, or securities of which the same might for the time being consist, or upon which the same might for the time being be invested upon trust," for one of the appointor's nephews named. The deed then proceeded in similar language to appoint other sums of Consolidated annuities, amounting in all to 37,000l., to other nephews and nieces (by name) of the ap

66

pointor, and continued as follows. “And as to the residue of the said two sums of 37,9141. 137. 9d., and 8001. Consolidated Annuities, or other the stocks, funds or securities, of which the same may for the time being consist, or upon which the same may for the time being be invested upon trust," for my niece Caroline Hodges, for her absolute use and benefit. Then follows a power of revocation of the appointment of the two sums, but the words "or other the stocks," &c., were not added.

Richard Hodges died in July 1872 without having revoked these appointments. At the date of appointment and at the present time the trust funds were insufficient to satisfy the several sums appointed, irrespective of the appointment, of the residue.

This suit had consequently been instituted by the trustees against the appointees for the purpose of determining their rights under the appointment.

The question was, whether Caroline Hodges could enforce an abatement on the part of the other appointees, in order that she might take a share of the trust funds.

Dickinson, Q.C. and Hemming, for the plaintiffs, the trustees, submitted the question to the court.

Karslake, Q.C. and Cracknall; Greene, Q.C. and Romer; H. R. Young, H. S. Milman, and Leonard Field for the defendants, the specific appointees, contended that the word "residue could only be taken as meaning that which remained after satisfaction in full of all the specific sums appointed. The appointor was aware of the fluctuating nature of the property he was dealing with, and if the value of the fund had increased instead of having diminished, Caroline Hodges would have been a gainer; upon the same principle she was liable, in the event which had happened, to lose. They referred to:

Petre v. Petre, 14 Beav. 197;
Page v. Leapingwell, 13 Ves. 463;
Oke v. Heath, 1 Ves. Sen. 135;

Harley v. Moon, 1 Dr. & Sm. 623; 6 L. T. Rep.
N. S. 411;

Booth v. Alington, 6 De G. M. & G. 613; 28 L. T.
Rep. 211;

Lefevre v. Freeland, 24 Beav. 403.

Lindley, Q.C. and Bagshawe, for Caroline Hodges, argued that the appointment to her, although expressed to be of the residue, amounted to an appointment of the balance of the securities upon which the two funds were then, or might thereafter be invested. That, in point of fact, was the effect of the decision of Sir William Grant in Page v. Leapingwell (sup.). The word "residue" must be taken in connection with the terms of the whole of the instrument, and need not, necessarily, be restricted to its ordinary acceptation. The appointor in directing that the appointees were to take "in shares and proportions " thereinafter expressed, intended to place the whole of the appointments upon the same footing. Moreover, the authorities clearly show that a gift of residue of a specific amount following immediately after specific gifts, took the character of those gifts. They cited:

Easum v. Appleford, 5 My. & Cr. 56;
Wright v. Weston, 26 Beav. 429;

Elwes v. Causton, 30 Beav. 554;

[V.C. H.

Karslake, Q,C., in reply, cited
Dyose v. Dyose, 1 P. W. 305;
Attorney General v. Drapers' Company, 4 Beav. 67
Vivian v. Mortlock, 21 Beav. 252.
Cur. adv. vult.

Feb. 11.-The VICE-CHANCELLOR, after stating the facts, continued as follows: The question is, Is Caroline Hodges to take nothing, and the others to abate, in order only that all the specific appointees may take? or is the appointment to Caroline, although expressed to be of the residue, the same in legal operation as an appointment of 1704l. 13s. 9d., the balance of the two funds or other stocks, funds, and securities, upon which that sum was then, or might thereafter, be invested? On hehalf of Caroline it has been contended that the latter is the correct view, and that the present case is to be decided as Sir William Grant decided that of Page v. Leapingwell (sup.) In that case Sir William Grant, held that the testator had clearly shown that he considered he was dealing with and appointing not less than 10,000l., and that the last donee in the series of legatees, to whom the "overplus was given, was under the gift of overplus entitled to be treated as if he had given to him a specified sum: i.e., as if the sum had been stated in figures, a sum equal to the balance of the 10,000l., after paying the sums previously given. There not being in fact in that case 10,000l., all the beneficiaries were required to abate rateably. It is to be observed that under the gift of "overplus" Sir William Grant considered that had there been more than 10,000l. the excess would have passed as "overplus." In Petre v. Petre (sup.), a testator having a power of appointment by will over a sum of stock, bequeathed two sums of 5000l. and 50001. sterling, thereout to A. and B., and the residue to his son. The stock became in equity liable to his debts, and by payment thereof, and of the costs of the suit, the fund became less than 5500l. sterling. The Master of the Rolls held that the pecuniary and residuary legatees were not liable to abate proportionally, but that the residuary gift failed altogether. The Master of the Rolls said "the authority of Page v. Leapingwell applies where the testator disposes of an estate which he assumes will produce a given sum, or is dealing with an ascertained fund, in which cases it is indifferent whether, after he has given certain portions, he specifies the remainder by stating its amount, or by comprising it under the term of "residue." But in this case, so far from knowing the amount of the fund, the testator could have no conception of it; for it was impossible to ascertain the amount until the fund had been realised by a sale, and the charges on it known. If in this case it appeared that the testator thought he was dealing with a sum of 7100l. sterling, and he had divided it into different proportions, the loss would then fall on all the persons interested in proportion to their shares, although the last portion were called the residue, but that is not the case here." In Elwes v. Causton (sup.) a testatrix bequeathed various sums of her bank stock, part of 9000l. like stock, to several legatees, and all the residue of her said bank stock to C. C. The stock at her death was insufficient to pay the specified sums. It was held that all those legacies, including the residue to C. C., must take in proportion. The Master of the Rolls said, "I am of opinion

V.C. H.]

[Q. B.

that this case comes within the principle acted on in Page v. Leapingwell, which was followed by me in the cases cited. If a man dealing with a sum of stock of a specific amount say I bequeath so much to A., so much to B., and the rest to C., the furd must be divided in those exact proportions, and if the stock falls short, the loss must be apportioned amongst all the legatees in the same proportion. The distinction between this case and that is this-that the latter was a case of a legacy payable out of stock, and there

was

66

no gift of the residue, which makes all the difference. If a man says I have 15001. stock; of this I give 1000l. to A. and the rest to B.; it is the same as if he said I give 1000l. of it to A. and 500l. to B., and both A. and B. are equally objects of his bounty." Many other cases were referred to in the course of the argument. I do not refer to them because most of them had some special circumstances, and the law is really not in question. The question is, does the deed poll of the 3rd Nov. 1870, deal with, or at all events make an appointment to be operative in reference to and regulated by specific funds at an unvarying amount, or does the appointor assume that a given sum will be available, or does the deed poll not so deal with the trust funds? I think the deed poll does not so deal. The appointor, in specifying what each appointee is to take, superadds the words, or other the stock funds or securities" &c., such words expressly referring to variations of investment already made, or thereafter to be made. I think the present case cannot be brought within the case of Page v. Leapingwell, and cases of that class. I do not overlook that the two funds are more than once (three times) mentioned without the addition of the words "or other the stocks," &c., but the places where these words are omitted do not include any of the parts of the instrument in which the particular sums to be taken by each are declared; neither do I overlook this, that the two funds specified would not (and that no doubt the appointor knew when the deed poll was executed) suffice by a considerable sum to provide for the appointees prior to Caroline. The appointor commenced his appointments-i.e., made the first recited appointment-when the two specified funds remained unchanged; and he continued to refer to those two funds subsequently to the change of investment. He did not, I think, in terms or in effect declare that those two funds should be considered as continuing for the purpose of measuring and apportioning the benefits taken by all the appointees. So to hold would, I think, be to depart from the ordinary meaning and force of the word "residue" upon conjecture, and not upon the construction afforded by intention clearly manifested upon the face of the instrument. I am not, I consider, warranted in treating the words "or other" as merely supplementary and subordinate. Much reliance was placed on the recital mentioning that the appointment was to be in shares and proportions, but this recital is, I think, insufficient to show that Caroline was at all events intended to take rateably with the other appointees. On the whole I hold that the trust funds must be distributed among the appointees exclusive of Caroline.

Solicitors for plaintiff, Young, Jackson, and Co. Solicitors for defendants, Saunders and Hawksford; Gedge, Kirby, and Millett; Harting and Co.

Common Law Courts.

COURT OF QUEEN'S BENCH. Reported by J. SHORTT and M. W. MCKELLar, Esqrs., Barristers-at-Law.

Wednesday, Jan. 28.

MUSGRAVE v. THE INCLOSURE COMMISSIONERS FOR ENGLAND AND WALES.

Inclosure of commons Rights of pasturage Rights usually enjoyed by lord or his tenantsEvidence-Provisional order — Jurisdiction of valuer or assistant commissioner where no objection made to claim-General Inclosure Act (8 & 9 Vict. c. 118), ss. 27, 48, 56, 77. Plaintiff was lord of the manor of K., and seised of certain farms, parcel of the said manor. He was also owner of the soil in certain tracts of waste land, which it was proposed to inclose. The tenants of the farms had from time immemorial exercised over the waste certain rights of pasturage. The Inclosure Commissioners, by their provisional order, directed that a certain portion of the waste should be allotted to the lord in respect of his right and interest in the soil, exclusively of his right or interest in all or any of the mines, minerals, stone, and other substrala under such land.

Held, that the provisional order being silent as to the inclusion or exclusion of "any right of pasturage which may have been usually enjoyed by the lord or his tenants" (8 & 9 Vict. c. 118, s. 27), such rights of pasturage, if any existed, were not to be considered as included in the provisional order, or as compensated for by the portion of the waste allotted to the lord of the

manor:

Held, also, that the quasi rights of pasturage enjoyed by the tenants of the farms, though technically merged in the ownership of the waste, were in fact "rights of pasturage usually enjoyed by the lord or his tenants," within the meaning of sect. 27 of the General Inclosure Act, and in respect of which the lord was entitled to a further allotment under sect. 77 of the Act. Plaintiff, having claimed rights of pasturage over the waste in respect of all the farms, some of these claims were objected to, but in the case of one claim no objection was made. This unobjected to claim having been disallowed by the valuer and assistant commissioner:

Held, that the claim not having been objected to, the valuer and assistant commissioner had no jurisdiction to examine its validity, and disallow it.

THIS was an action upon a feigned issue pursuant to sect. 56 of the General Inclosure Act (8 & 9 Vict. c. 118).

The feigned issue was as follows: In the Queen's Bench, the 9th July, A.D. 1866, Cumberland (to wit), whereas Sir George Musgrave, Bart., was at the time of his making the claims hereinafter mentioned, and from thence hitherto has been, and still is lord of the manor of Kirkoswald, in the township of Kirkoswald, in the county of Cumberland, and as such lord, claims to be scised in his demesne, as of fee of, and in certain lands within, and parcel of the said manor (that is to say), certain lands containing together about 257a. 2r. 13p., and comprised in a certain farm

Q. B.]

called the Mains Farm, certain other lands containing together about 181a. 2r. 38p., and comprised in a certain farm called the Demesne Farm, certain other lands containing together about 109a. 3r. 14p., and comprised in a certain farm called the Housegills Farm, certain other lands containing together about 159a. 3r. 5p., and comprised in a certain farm called the High Bank Hill Farm, certain other lands containing together about 422a. 1r. 17p., and comprised in a certain farm called the Fog Close Farm, certain other lands containing together about 335a. Or. 17p., and comprised in a certain farm called the Park House Farm, and certain other lands called the Woodlands, containing together about 84a. Ir. 30p., and of which certain portions containing together about 11a. Or. 20p., form part of the said farm called the Park House Farm, and the remaining portions do not from part of the said last mentioned farm; and whereas, under and according to the provisions of the Acts for the inclosure, exchange, and improvement of land, certain proceedings were duly had and taken for the inclosure of certain commons within and parcel of the said manor (that is to say), four certain commons called respectively Haresceugh Fell, Viol Moor, Tod Bank Hill, and Berry Moor, that a certain valuer duly appointed and acting in that behalf under the said Acts determined in the matter of the said inclosure (amongst other claims), certain claims duly made by the said Sir George Musgrave, of rights of common of pasture upon each of the said commons for all his commonable cattle, levant and couchant, upon his said respective lands; and whereas the Inclosure Commissioners for England and Wales afterwards duly empowered Nathan Wetherell, Esq., an assistant commissioner under the Acts, to re-hear and determine (amongst other claims) the said claims of the said Sir George Musgrave, and the said Nathan Wetherell, Esq., did accordingly duly and according to the said Acts, re-hear and determine the said claims of the said Sir George Musgrave, and upon such re-hearing did determine and decide in respect of the said claims of Sir George Musgrave, as follows (that is to say), that his said claims in respect of his said lands, in his said farm called the Mains Farm, should be disallowed as to all the said commons, that his said claims in respect of his said lands comprised in the said farm called the Demesne Farm, should be allowed as to the said common called Haresceugh Fell, and disallowed as to the said commons called Viol Moor, Tod Bank Hill, and Berry Moor, that his said claims in respect of his said lands comprised in the said farm called the Housegill's Farm, should be allowed as to the said commons called Haresceugh Fell and Viol Moor, and disallowed as to the said commons called Tod Bank Hill and Berry Moor, that his said claims in respect of his said lands, comprised in the said farm called the High Bank Hill Farm, should be allowed as to the said commons called Haresceugh Fell and Berry Moor, and disallowed as to the said commons called Viol Moor and Tod Bank Hill, that his said claims in respect of his said lands, comprised in the said farm called the Fog Close Farm should be disallowed as to all the said commons, that his said claims in respect of his said lands comprised in the said farm called the Park House Farm, should be allowed as to the said commons called HareVol. XXX., N. S., 751*

[Q. B.

sceugh Fell and Viol Moor, and disallowed as to the said commons called Tod Bank Hill and Berry Moor, that his said claims in respect of his said lands called the Woodlands, should so far as regards the said portion thereof, forming part of the said farm called the Park House Farm, be allowed as to the said commons called Haresceugh Fell and Viol Moor, and that the residue of his said last-mentioned claims should be disallowed. And whereas, the said Sir George Musgrave claims to be interested in the said commons, and is dissatisfied with the said determinations and decisions of the said assistant commissioner, so far as his said claims were thereby disallowed. And whereas, the said Sir George Musgrave, duly caused notice of such dissatisfaction to be delivered according to the provisions and requirements in that behalf, of the 56th section of 8 & 9 Vict. c. 118, and everything has been done and has happened, and all times have elapsed, necessary to entitle the said Sir George Musgrave to bring an action upon a feigned issue against the Inclosure Commissioners for England and Wales, for the determination of the several matters in respect to which he is so dissatisfied as aforesaid. Now the said Sir George Musgrave affirms, and the Inclosure Commissioners for England and Wales deny as follows, that is to say: First, that the said Sir George Musgrave is entitled to common of pasture upon the said common called Haresceugh Fell, for all his commonable cattle, levant and couchant, upon his respective lands, comprised in the said farms called respectively the Main's Farm and the Fog Close Farm, and upon such of his said lands called the Woodlands, as do not form part of the said farm called the Park House Farm. Secondly, that the said Sir George Musgrave is entitled to common of pasture upon the said common called Viol Moor, for all his commonable cattle, levant and couchant, upon his said respective lands, comprised in the said farms called respectively the Maiu's Farm, the Demesne Farm, the High Bank Hill Farm, and the Fog Close Farm, and upon such of his said lands called the Woodlands, as do not form part of the said farm called the Park House Farm. Thirdly, that the said Sir George Musgrave is entitled to common of pasture upon the said common called Tod Bank Hill, for all his commonable cattle, levant and couchant, upon his said respective lands, comprised in the said farms called respectively the Main's Farm, the Demesne Farm, the Housegill's Farm, the High Bank Hill Farm, the Fog Close Farm, and the Park House Farm, and upon the said lands called the Woodlands. And fourthly, that the said Sir George Musgrave is entitled to commonof pasture upon the said common, called Berry Moor, for all his commonable cattle, levant and couchant, upon his said respective lands, comprised in the said farms called respectively the Main's Farm, the Demesne Farm, the Housegill's Farm, the Fog Close Farm, and the Park House Farm, and upon the said lands called the Woodlands. Therefore, &c.

The action came on for trial at the Cumberland Summer Assizes, 1866, when a verdict was by consent entered for the plaintiff subject to the opinion of the court on a special case to be settled by an