1862. TURNER V. BARNES. On the trial of the issues in fact, before Channell B., at the Summer Assizes for Devonshire in 1861, a verdict was found for the plaintiff for 155l., subject to the following special case. At the time of the making of the indenture hereinafter next mentioned, G. W. Turner, of, &c., was seised in fee and was also in the occupation of a messuage or dwelling house with the appurtenances, being No. 14, Castle Street, in the parish of St. Lawrence, in the city of Exeter, and was also the proprietor of five whole shares and one half share in a Benefit Building Society, called The Exeter and West of England Permanent Benefit Building Society, of which Society the defendants were trustees. By an indenture, bearing date and made the 22d January, A.D. 1857, between and by G. W. Turner, of the one part, and the defendants, therein described as trustees of The Exeter and West of England Permanent Benefit Building Society, of the other part, reciting, among other things, that it had been agreed that 5501. should be paid out of the funds of the Society to G. W. Turner, in full satisfaction of his shares, and that in consideration of such payment G. W. Turner had, pursuant to the rules of the Society, agreed to pay unto the Society for the term of fourteen years commencing from the 22d January, 1857, the quarterly sum of 16l. 3s. 2d. in respect of his shares, the first and every subsequent quarterly payment to be made at the times and in manner prescribed by the said rules, and that for securing the quarterly sums and other monies thereafter to become payable on account of, or with reference to the said shares, and that security respectively, G. W. Turner had agreed to execute the security intended to be by the reciting indenture effected, it was witnessed that, in consideration of the sum of 5501. advanced out of the funds of the Society, G. W. Turner appointed and conveyed the messuage or dwelling house, No. 14, Castle Street, with the appurtenances, to the defendants, their heirs and assigns for ever. And it was amongst other things provided that, if G. W. Turner, his heirs, executors, administrators, or assigns, should duly pay unto the Society the several quarterly and other sums which under the rules of the Society should become payable on account of the said shares, and should observe and perform the rules of the Society and the covenants thereinafter contained, it should be lawful for G. W. Turner, his heirs and assigns, to hold and enjoy the said messuage or dwelling house with the appurtenances, and to receive and take the rents and profits thereof, without disturbance by the defendants or other the trustees or trustee for the time being of the Society; but that, if default should be made in any of the matters aforesaid, it should be lawful for the trustees or trustee for the time being of the Society, to enter into possession or into receipt of the rents and profits of the said messuage or dwelling house with the appurtenances, and to lease the same as they might think fit, or to sell and dispose of the same, and out of the rents and the proceeds of such sale, amongst other things, to retain the full amount of all payments in arrear, and fines thereon due upon that security, and also of the then value of all future payments payable upon the said shares, and to pay the surplus, if any, unto G. W. Turner, his heirs or assigns. The indenture concluded 1862. TURNER V. BARNES 1862. TURNER V. BARNES. with the following clause: "And the said G. W. Turner doth hereby agree to become tenant to the said W. Barnes, &c., their heirs or assigns, or other the trustees or trustee for the time being of the said Society, of the hereditaments and premises hereby appointed and conveyed, henceforth during their will, at the clear net yearly rent of 661. payable on the usual quarterly days, videlicet, &c., subject to the powers of distress and entry for nonpayment thereof, and to all usual remedies as in leases of like property. Provided always that no greater principal sum shall be hereby secured than 8007." On the 25th May, 1858, G. W. Turner intermarried with the plaintiff, then called Ellen Emma Hester Austin. Before the marriage and at the time of the making of the indenture hereinafter next mentioned, G. W. Turner and the plaintiff were respectively possessed of certain household furniture and effects, being those comprised therein. By that indenture, bearing date the 25th May, 1858, and made prior to the marriage by and between G. W. Turner of the first part, the plaintiff of the second part, and B. Austin and J. Austin of the third part, (B. Austin and J. Austin, being respectively the father and brother of the plaintiff), in consideration of the intended marriage, all and singular the household goods and furniture, plate, linen, glass, china, books, prints, pictures, and other household effects of them the said G. W. Turner and the plaintiff respectively were assigned to B. Austin and J. Austin in trust (among other things), after the solemnization of the marriage, to permit the plaintiff to have hold and enjoy the said furniture and effects for her separate use, free from the control and debts of G. W. Turner. The furniture and effects comprised in this indenture remained in the messuage No. 14, Castle Street, from the solemnization of the marriage of G. W. Turner and the plaintiff until the time of the distress hereinafter mentioned. During the lifetime of G. W. Turner and the plaintiff, the furniture and effects were used by G. W. Turner and the plaintiff in the said messuage. About five weeks before the death of G. W. Turner, he and the plaintiff went to a watering place near Exeter for the benefit of his health, leaving the servants in care of the said messuage and the furniture and effects. About three weeks before the death of G. W. Turner, the plaintiff's father, with the consent of G. W. Turner and the plaintiff, went to the said messuage for the purpose of protecting it and the furniture and effects; and he remained there for that purpose until the time of the levying of the distress hereinafter mentioned. G. W. Turner died at the watering place on the 16th March, 1860. The plaintiff was with him at the time of his death, and returned to the said messuage on the 18th March, 1860, and remained therein until this action was brought. G. W. Turner, before his death, had paid to the defendants, as trustees of the Benefit Building Society, the sum of 741. 12s. 8d. on account of the quarterly sum of 161. 3s. 2d. agreed to be paid by him in respect of his shares in the Society, and secured by the indenture dated 22d January, 1857, and at the time of his death there was due and in arrear from him to the defendants as such trustees, on account of the quarterly sum of 161. 3s. 2d., the sum of 1197. 5s. 4d. 1862. TURNER V. BARNES. On the 17th March, 1860, being the day following the day of the death of G. W. Turner, one of the defendants, for himself and the others, and with their authority, signed a warrant of distress addressed to W. Harris, and delivered the same to him, with direc tions to execute it. The arrears of rent mentioned in that warrant were three years arrears of the sum of 667., at which it is stated, in the indenture dated the 22nd January, 1857, that G. W. Turner agreed to become tenant to the defendants of the messuage or dwelling house No. 14, Castle Street, at a net yearly rental of that amount, after giving credit for the sum of 741. 12s. 8d., paid to the defendants by G. W. Turner in his lifetime on account of the quarterly sum of 161. 3s. 2d., agreed to be paid by him in respect of his shares in the Society. On the said 17th March, Harris, in pursuance and under the authority of the warrant of distress and of the directions given to him, entered into and upon the messuage, and distrained the furniture and effects therein for the alleged arrears of rent. On the 20th March, and whilst Harris continued in possession of the furniture and effects under the distress, the plaintiff, at the request of the defendants, signed and delivered to them a notice in writing, requesting them not to sell the furniture for seven days from that date. On the 22nd March, and whilst Harris continued in possession of the furniture and effects under the distress, the plaintiff signed and delivered to the defendants and to Harris a notice that she claimed the furniture and effects under the indenture of the 25th May, 1858, and required them to give up possession of |