this situation may understand the value of a security on their fellowships. That is one point which I mean to reserve. Then, it is said that it is directly contrary to the statutes. No doubt, the statutes assume that every fellow of the college is to conduct himself in the world with honesty and propriety; that his conduct, his character, all that is about him, should be of such a nature as to reflect honour and dignity on the foundation to which he belongs. And, so far as any of the proceedings which have been detailed to us on the present occasion are contrary to these purposes, no doubt they are in violation of the rules of the college; but are they so far a violation of the rules of the college, that the purpose which is destined to be answered here is to prevail? The next and the last point relates to the visitorial authority. It is said, that, although it may be very proper to give effect to this assignment, yet it ought not to be made available here, because it could not be done without interfering with the discipline and arrangement of the college; and that this was a matter within the visitorial jurisdiction, and not the jurisdiction of a court of equity. I am much surprised at a question of that sort being raised, but I shall reserve it for consideration. I wish to have a copy of the pleadings and the evidence, and I should like to have that book of the statutes, which I wish to have an opportunity of looking into; and, certainly, I think it is a matter in which the public is, to a consi-* derable extent, interested, when it comes to this, whether they can deal with a fellow of a college on the same footing as they deal with other people, because of the protection to his income.

be lamented that the transaction has been brought be-order that persons who are dealing with gentlemen in fore the Court. No doubt some suspicion belongs to a transaction of this sort, in which goods are taken instead of money, but I must express my opinion that it does not appear by any evidence whatever that can be relied upon, that this gentleman was surprised in the transaction. He entered into it with his eyes open, he pressed for it, he was fully aware of the nature of it, and he himself went, and went with his friend, for the purpose of ascertaining the value of the goods which he took as part of the transaction. I am therefore of opinion that the transaction cannot be set aside on this ground. It is, too, to be borne in mind, that the defendant does not come forward as a person desiring relief on equitable terms. He does not say, "I have been oppressed and injured, I am willing to pay what is just, but do not compel me to pay more than is just;" but he comes here on an entirely different footing, offering nothing, except in the event of his not succeeding in escaping payment of all. The next defence is this, that it was an usurious transaction, and that the security given was a security so connected with land as not to be within the exception of the statute; and a case is cited for that proposition. But I think that this is an objection which cannot prevail on this occasion and in this course of proceeding. But then comes the most important part of this case, and, with the exception of what is alleged in the answer, I say the most unfortunate part of this case. Finding difficulties in raising money, the defendant offered the security of his fellowship or the profits of his fellowship. "Lend me this money," he says; "you will be safe." He authorised a communication with the persons from whom it was supposed information on the subject might be obtained, and availed himself of it to give the assignment of other securities, which he did. And having obtained such money as he could get in that way, and given his fellowship as an inducement and pretended security, he says, "What I have done is worth nothing at all; it cannot avail you in the least; I will set you at defiance." Now, this is a transaction brought forward in a court of equity at this day. If it is the law, he must have the benefit of it; but do not let us mistake the nature of this transaction. "There is my fellowship; give me the money; I will give you the security. Now I have got the money, the security is not worth a straw." Now, the security is said not to be worth anything, first of all, because the subject of the assignment was uncertain. He says, "I did not know how much I was to receive one year, and how much another year there might be wanted for the purposes of the colleges-one sum at one time, and another sum at another time. It is so uncertain, that it cannot be the subject of an assignment." The next objection is, that it is contrary to the policy of the law. "I am in the situation of a fellow of the college." I should be sorry to say a syllable; it would be quite contrary to all that has appeared on this occasion, if there was a syllable to be uttered with respect to the college. It has behaved itself in a manner worthy of its high character on this occasion, and worthy of persons filling the eminent station they do. He says, "I have a duty to perform to the college; I am to support myself, and do what is fit for the dignity of the college and the decency of appearance;" and these things have been put forward among the reasons; and, therefore, I may go abroad soliciting persons to lend me money on the security of it, and then say it is good for nothing; go about your business, you have no claim on me. If the fellow of a college, receiving his stipend under circumstances detailed in this case, is entitled to hold his income free from all claims of creditors, and free from all assignments or pledges he may make of it-if that is so, certainly it is most important it should be known, in

May 6.-Lord LANGDALE, M. R.-This bill is filed by A. Fiestel v. King's College, Cambridge, and L. Buller, a fellow of that college, praying that it may be declared, that, under and by virtue of an assignment in the bill mentioned, the plaintiff is entitled to be paid the income of Mr. Buller's fellowship, and that accounts may be taken of what is due to the plaintiff under the assignment, and of what is due to Mr. Buller in respect of his fellowship; and that the college may be ordered to pay what is due to the plaintiff on his security out of what shall be found due to the defendant Buller in respect of his fellowship. The defendant Buller, in December, 1842, requested the plaintiff to lend him money on the security of the income of his fellowship; and the plaintiff having agreed to do so, an indenture, dated the 28th December, 1842, was executed between Mr. Buller of the one part, and the plaintiff of the other part; and thereby, in consideration of 3007., stated to be lent to Buller by the plaintiff, Buller granted and assigned to the plaintiff the income and emoluments payable to him in respect of his fellowship, to have and receive the same to the plaintiff for his own use, in trust, however, to re-assign the same in case Buller should pay the plaintiff 3001, and interest on the 30th June then next; but, if default should be made, then with power for the plaintiff to sell and dispose of the same income and emoluments, and out of the money to arise from the sale, and out of the income until the same should be sold, to pay the costs of the sale, and then to pay and retain to himself the 300l. and interest, or so much thereof as should remain then due; and by the same indenture Buller appointed the plaintiff his attorney to receive the income and emoluments of the fellowship, and he contracted to pay the 300%. and interest, and agreed, that, notwithstanding the power to sell, the plaintiff might resort to his right and remedy as a mortgagee, by way of foreclosure or otherwise; and it seems to have been further agreed, that the security should not be resorted to so long as the interest on the loan was regularly paid. Notice of the indenture was given to the college in January, 1843, and in September in the

assist in carrying into effect the statutes; but the defendant himself distinctly admits that the office, situation, or post of senior fellow now held by him, is not an office in any way connected with the administration of justice, or an ecclesiastical office of any nature or character; that there is not any cure of souls attached thereto; and he not only denies that there is any provision in the statutes, rules, or regulations of the college which renders it incumbent on him to be resident in the college, but says, that, if there be any such rule, it has long ceased to be, or to be considered binding on the fellows. There is nothing in this case which appears to me in any degree to resemble any of the cases in which assignments of income have been held void on the ground of public policy. The college may deal as the law allows them with a fellow who has assigned his fellowship, but I am at a loss to conjecture what special interest the public can have in the question, whether Mr. Buller does or not continue to be a fellow, or does not hold himself in readiness to perform such slight duties as are annexed to the benefit he is intended to enjoy. I do not think the public are at all concerned in the question, whether Mr. Buller continues to be a fellow or not, whether the fellowship now occupied by him shall be at any time hereafter occupied by him or any other person; and I do not propose to interfere in any way with the internal management of the college, with their authority over individual fellows, or the dividends they may apportion in respect of any fellowship. I am only to consider the dividends they may at this time or hereafter apportion to Mr. Buller. It appears to me Mr. Buller has effectually assigned such dividends as may be apportioned to him, and that there is no sufficient reason to induce this Court to abstain from giving effect to such assignment, and, therefore, I must order, that, for the purpose of paying what is due to the plaintiff, the sums of money which already have been, or may hereafter be, apportioned to Mr. Buller, in respect of his fellowship, shall be applied in or towards satisfaction of the plaintiff's demand, and the necessary accounts must be taken. I do not mean to direct any account of the income and emoluments of the college, but only an account of the sums of money which now or hereafter to Mr. Buller, and I will either appoint a receiver of such sums of money as may hereafter be appropriated, or adopt any other mode of securing the plaintiff's interest which may be more satisfactory to the college itself. The costs of the suit ought to be paid by the plaintiff to the college bursar, and he is to have them over with the other costs against the defendant Buller.

same year, Mr. Buller having neglected to pay any interest, the plaintiff, by his solicitor, requested the college not to pay to Buller the income of his fellowship, but to pay the same to the plaintiff. The bill was filed in November, 1844, stating that the college and the bursar of the college refused to pay anything to the plaintiff, and that the whole sum intended to be secured by the indenture remained due to the plaintiff. Mr. Buller admits that he was in 1842, and is now, a fellow of the college; that the provost and fellows of the college are entitled to some definite and proportionate shares of the income arising from the property of the college, and otherwise; and that he, as fellow, is entitled to some yearly sum of money or dividend, payable by the college or the bursar in the proportion in the answer mentioned. The defendant hath further in his answer set forth facts and allegations, from which he desires it to be inferred that he was imposed upon in the transaction, which ended in the assignment of the income of his fellowship, and that the transaction was usurious and void; and he submits, that the dividends of his fellowship, or his share as fellow of the income or property of the college, are not assignable, inasmuch as he says such assignment would defeat the intention of the founder of the college, and render the defendant unable to perform the duties devolved upon him, as the senior fellow thereof, under the statutes; and that such assignments would be contrary to principles of public policy, which require that the intention of the founder or donor should be strictly preserved and executed. The transaction between the plaintiff and Mr. Buller is one of those transactions that courts of justice are frequently under the necessity of executing without approving of them in themselves. I have before stated my opinion, that the evidence in this case does not establish any such case of fraud and imposition as is alleged by Mr. Buller in his answer, and that the indentures of December, 1842, cannot be impeached on the ground of usury. I am also of opinion that there is nothing in the nature of the income which a fellow of this college is entitled to, from which it can be inferred that his income and emoluments are not assignable in equity by reason of the uncertain annuity or otherwise. The cases of assignments at law, which were cited in the argu-may be by the college itself apportioned or appropriated ment, are not applicable to this case, but the question is here, whether there are any such duties incident to the situation or office, as it is called, of a fellow, as to make the assignment of the income contrary to public policy. The assignment may be contrary to the implied intention of the founder of the college, contrary to the spirit of the statutes, which are the exponents of the intention of the founder, and may, therefore, expose the assignor to consequences very unpleasant to himself, and very injurious to those who have dealt with him VICE-CHANCELLOR OF ENGLAND'S COURT. on the faith of his assignment. It may be a violation of his duty to the college, and very reprehensible, without being on that account void, or contrary to public policy. The advantages to the fellow which are annexed to the fellowship are very great, and, when well used by a studious and well-conducted person, may secure to himself the means of acquiring independence and distinction in life, and may secure to the world some fruits of his useful pursuits; but the easy duties which are annexed to it, are duties which seem to be intended for the purposes and benefit of the college, and not for the public, otherwise than in a secondary and remote sense; as it is for the benefit of society, that is, for the benefit of the public, that all lawful trusts should be duly executed, and all lawful contracts duly performed. The fellow of a college may be summoned to attend the meetings of the other fellows, and if he attends he may vote in the election of officers, assist in what this defendant thinks proper to call the due administration of justice between the fellows, and

CORPORATION OF LIVERPOOL v. MORRIS.-May 1. Motion on Answer to dissolve Injunction. Affidavit to Practice-Injunction. prove the Identity of a Model, referred to by the Answer, rejected.

This was a motion by defendant, upon filing his answer, to dissolve an injunction which plaintiffs had obtained ex parte.

Stuart and W. M. James, for the motion, proposed to read an affidavit which had been filed since the answer, for the purpose of identifying certain models as the models referred to in the answer.

Bethell, contra, objected to the admission of the affidavit, on the rule that no affidavit filed after answer could be used upon a motion to dissolve on answer, citing Barwell v. Brooks, (7 Jur. 364).

Stuart.-We have taken the only course that was possible. Ex concessit, there must be cases where the use of a model becomes necessary. The answer states;

"And this defendant has caused a map and two models to be prepared ready to be shewn to this Court; that such map is annexed by way of schedule hereto, and gives an actual representation of the whole extent of said street; and that one of the said models, which is marked with the letter (A), gives an accurate representation of said street from the west of Mill-lane to the east of St. Ann-street; and that the other of the said models, which is marked with the letter (B), gives an accurate representation of the palisading in front of the house which has been taken down." We say that we have an accurate model, marked (A), and we produce an affidavit merely to prove, that the one produced is the one referred to in the answer. So, in the case of a book referred to by an answer, you do not set out the book in the schedule; but, when reading the answer, we produce that book and evidence of its identity with that referred to by the answer. This affidavit is not for the purpose of improving the case made upon the answer, but is, in fact, a part of that case. VICE-CHANCELLOR.-If your answer had been so constructed, that the Court must of necessity infer that that is the same model which is referred to by the answer, I might look at the model for the purposes of this motion; but, as I understand it, that cannot be satisfactorily made out, except by having recourse to some other evidence than the answer. Formerly, the practice was to deposit the thing mentioned in the answer with the Clerk in Court, and refer to it in the answer as being left with the Clerk in Court, and, if he refused to receive it, the Court would make an order that he should receive it. I cannot receive this affidavit.-Affidavit rejected.

EVANS v. CROSBIE.-June 23. Will-Legacies charged on Real Estate-Legatec. On the Construction of a Will,-Held, that Legacies were charged on Real Estate, and that the Words, "I leave and bequeath to D. the Sum of 2000l., and also to be my residuary Legatee," constituted a Gift to D. of the Testator's residuary Real Estate.

Catherine Currie, of Greenock, the sum of 2001. for her own absolute use and benefit; and, in respect to my interest in the said twelve shares in the Westminster Gas Company before excepted, I give and bequeath the same unto my grandchildren, Malcolm Currie Ancell and Charlotte Ancell, for their sole and absolute use and benefit, free from the control of their father, Henry Ancell; and I do hereby further appoint my said trustees to be executors of this my will and testament. The testator died in December, 1836, leaving real property to a considerable amount, but personal property to an amount less than 4501. The questions now raised were, whether all the legacies given by his will were charged on his real estate, and whether Donald Currie took the real estate not otherwise disposed of, under the expression "residuary legatee."

Stuart and Shapter, for the plaintiffs, who were the assignees of Neil Currie, the testator's heir-at-law, a bankrupt, who would claim the undisposed of real

estate.

Bethell, Hetherington, and Pearson, for the representative of Donald Currie.-We contend, that the words "residuary legatee" carry the residuary real estate. In the first place, there is a gift of all, both real and personal, to trustees, to pay the legacies, and to pay the residue to the person who the testator makes his residuary legatee; and it may be said, that the realty is thereby converted into personalty, so as to pass to a legatee. In the next place, it is the intention of the will to dispose of the whole of the testator's property; that is apparent on the will, and is, besides, the presumption of law. Then comes the question, whether the word "legatee" can mean "devisee," and there are several cases to shew that it can. (Hope v. Taylor, 1 Burr. 268). [Vice-Chancellor.-The reasons there given by Lord Mansfield are rather fanciful. It has been said, that the law presumes an intention to dispose of the whole; that is not so: the law presumes that the testator meant what he has said.] (Pitman v. Stevens, 15 East, 505; Hardacre v. Nash, 5 T. R. 716; Davenport v. Coltman, 9 Mee. & W. 481; 12 Sim. 588).

Campbell, for the three children of James Currie, contended, that the legacies were charged on the real estate. The objects of the testator's bounty were all brothers and sisters, and as he has undoubtedly charged the legacy given to one of them on the real estate, we must conclude, that he intended to charge all the legacies in the same manner. (Bench v. Biles, 4 Mad. 187; Crooke v. De Vandes, 9 Ves. 197; Withers v. Kennedy, 2 My. & K. 607).

Stuart, in reply.-The testator has not made his real and personal estate one fund; for, after having given it, he specifies two ways in which the legacies are to be paid. The personal estate is to be applied as far as it goes, and the other legacies are to be paid out of it, and the 1500l. out of the real estate. There is no absolute conversion, for the trustees have power to raise the legacy by mortgaging merely, without selling. It has been said that all the legacies are charged on the land, but there is nothing in the will expressing that intention. In Davenport v. Coltman, and the other cases that have been cited, there was something in the context to shew, that, by legatee, the testator meant devisee. Here there is nothing of the kind, and there is no reason why we should give the word a meaning which does not belong to it.

Malcolm Currie made his will, dated 27th February, 1834, in the following words:-"I, Malcolm Currie, of Regent-street, in the city of Westminster, in the county of Middlesex, do solemnly make and declare this to be my last will and testament. I give and bequeath all my real and personal estate in possession, reversion, expectancy, or remainder, wheresoever situated in England, (except my twelve shares in the Westminster Gas Company), unto my brother, Donald Currie, of Regent-street aforesaid, and unto my nephew, Malcolm Douglas Crosbie, also of Regent-street afore said, and their heirs, executors, administrators, and assigns, upon trust that they, or the survivor of them, or the heirs or assigns of such survivor, do and shall, as soon as conveniently may be after my decease, by or out of my personal estate, or by sale, mortgage, or other disposition of my real estates, or any part thereof, pay unto my sister, Flora Crosbie, of Regent-street aforesaid, the sum of 15007. for her own absolute use and benefit, clear of any control by her husband, Captain Crosbie, the interest to be paid to her on her own receipt during her life, and at her demise the sum of 1000l. to go to her daughter, Eliza Crosbie, and 5007. to her son, the said Malcolm Donald Crosbie. I leave and bequeath unto my brother, James Currie, the sum VICE-CHANCELLOR.-It rather seems to me, that the of 10007., to be laid out at eligible security, and the in-cases of Pitman v. Stevens and Davenport v. Coltman terest to be paid to him during his life, and at his demise the said sum to be divided amongst his surviving children, giving his son, Malcolm Currie, 100l. towards completing his medical education. I leave and bequeath unto my brother, Donald Currie, of Regentstreet aforesaid, the sum of 20007., and also to be my residuary legatee. I bequeath to my paternal sister,

have a value with regard to this case in this respect, that they are authorities as to the use of the word "legatee," as applicable, in the minds of the parties who used it, to a disposition of the real estate. It is clear, that, upon these two cases, the Court looked, as it ought to do, at the whole of the will; but these two cases are proofs, that persons not well educated, or, at

on.

wardens, and assistants. And it was enacted that the reference directed to the Master to approve of and settle said master, wardens, and assistants should from time to proper conveyances and other assurances thereof; and time pay such sums of money for such purposes as the it was ordered that sufficient of the Consols should be Court should direct out of the monies applicable to the sold to raise the 96,000l., and the same should be paid purposes of the said act. In pursuance of the powers to such persons as the Master should certify to be enin the act the Skerries was purchased by the commis- titled. And it was ordered that it be referred to the sioners, and a sale was effected, the value being assessed taxing Master in rotation to tax the reasonable costs, by the sheriff of the county and a jury, pursuant to the charges, and expenses of the said John Jones and of directions contained therein, so that the sale was a com- Morgan Jones attending the purchase of the estate pulsory one. The conveyance was made by the Rev. comprised in the contract, or what had been incurred in John Jones, the first tenant for life, under the will of consequence thereof, together with their costs, charges, the testator Morgan Jones, and all other proper parties, and expenses of obtaining the proper orders, and of the the property being sold for 446,9847. 11s. 2d., of which other proceedings for such purposes, and of completing a portion was invested in the purchase of the sum of the conveyances of the said estate, and attendant there141,475/. 158. 10d., 31. per Cent. Consols, in the name And it was ordered that the master, wardens, and of the Accountant-General, and stood to an account assistants of the said corporation of Trinity House of "Ex parte the Corporation of Trinity House of Dept- Deptford, Stroud, should pay the said costs, charges, ford Stroud and John Jones." An estate belonging to and expenses to the said defendants, Lewis, Morgan, the Hawarden family, called the Westmead estate, si- and Howell. At the time of the contract, many and tuate in the county of Carmarthen, was offered for sale, complicated incumbrances and interests and estates and a contract was entered into, dated 6th July, 1843, were outstanding, the parties entitled to the same being between Howe and Pomeroy (trustees for sale of the fee- resident in Scotland, Ireland, France, and elsewhere. For simple of ten-elevenths of the Westmead estate) of the this reason, Mr. S. F. Wilde, the conveyancing counsel first part; the Dowager Viscountess Hawarden (the be- of the purchaser, advised that the deeds of reconveyance neficial owner for life of the remaining one-eleventh) and release of such estates and interests and incumof the second part; M. C. Trevilian and the Dean of brances should be by separate instruments to the Clogher (trustees for sale of the fee-simple of that one- vendors, rather than that the same should be included eleventh subject to her life estate) of the third part; in the purchase or conveyance deed to the purchaser, J. C. Maude (a party whose consent was necessary for on account of the very material inconvenience of its the exercise of the power of sale by the trustees) of length, which would be occasioned by making so many the fourth part; and John Jones of the fifth part. parties, entitled to different interests in or affecting the The parties of the first, second, third, and fourth parts Westmead estate, parties thereto; and, for the purpose agreed, that, subject to the direction and approbation of of facilitating the completion of the purchase, the solithe Court of Chancery, the trustees for sale and tenant citors of the vendors agreed to this requisition. Acfor life should sell, and John Jones should purchase, cordingly, all necessary deeds for effecting these purall those &c., (the Westmead estate), "and the inherit- poses were prepared by the solicitors of the vendors, ance thereof in fee-simple in possession, free from in- and drafts of them were transmitted to the solicitors of cumbrances, except an annual crown rent of 1017. 5s. the purchaser for their perusal; and they submitted per annum, after deducting land-tax, payable out of the same to counsel (Mr. Wilde) to advise whether the said premises, and except the liability of part of the they were sufficient for the purpose intended. On acsaid premises to bear one-half of the expense of the count of the heavy incumbrances affecting the estate, the sluice or embankment against the sea," for the sum of vendors could not pay off the same without resorting 96,000l., to be paid out of the said Consols in the Bank, to the purchase-money; and it was afterwards found or the monies to be produced by a sale of a competent necessary to alter the several drafts of reconveyance and part thereof. That J. Jones should, at his own costs, ob-releases, by reciting the Master's certificate to whom the tain the sanction of the Court to the contract within a purchase-money was due, and stating, that, in consicertain time specified. That the vendors, within a stated deration of the payment to be made by the Accountanttime after the sanction of the Court being obtained, General out of the purchase-money of the amounts cershould furnish an abstract of title to the estate, and de- tified by him to be due to the several incumbrancers, duce a good title thereto, subject as therein before men- they respectively released the estate from their severaĺ tioned, (except a small specified piece of Salt Marsh). charges as therein stated. The drafts were altered for That, in case any of the proceedings in the suit of these purposes, and again laid before Mr. Wilde by the Hawarden v. Hawarden shall be required to be pro- solicitors of the purchaser, and perused and affirmed. duced, the purchaser shall accept, at the vendors' ex- The purchase was then completed, and, after its compense, plain copies of such proceedings, as well for ve- pletion, the full bill of costs, charges, and expenses rifying the abstract as for all other purposes." Other against John Jones (since deceased) and against Morclauses then followed, and then that the trustees for gan Jones, the present tenant for life under the will of sale and tenant for life, "as soon as the proper order the testator, Morgan Jones, attending the purchase of shall have been made by the said Court of Chancery for the estates comprised in the contract of 6th July, 1843, the completion of the said purchases, and the payment and which had been incurred in consequence thereof, of the said sum of 96,000l., execute and procure to be together with their costs, charges, and expenses of obexecuted by all other necessary parties (if any) a pro- taining the proper orders, and of the other proceedings per conveyance and settlement of the said manors, &c., for such purposes, and of completing the conveyance, and the fee simple and the inheritance thereof, free and attendant thereon, and which were to be paid by from incumbrances, except as aforesaid, to, for, and the Trinity House under their act, and pursuant to the upon such uses, trusts, intents, and purposes, and in order of 28th July, 1845, was carried in before Mr. such manner as the said Court of Chancery shall direct; Gatty, the taxing Master in rotation. The bill amountand that such conveyance and settlement shall be pre-ed to 11307. 10s. 6d., and the taxing Master taxed off pared by the purchaser, and the expense thereof borne in manner prescribed by the act of the 6 & 7 Will. 4, c. 79, or in such other manner as that the vendors shall not in any case be liable to pay any part thereof." By an order of the Court of Chancery, dated 28th June, 1845, the Master's report, that a good title could be made to the Westmead estate, was confirmed, and a

2531. 10s., and the percentage being added to the bill, the same was finally allowed at the sum of 903/. 6s. 8d. The taxing Master had also disallowed 127. 13s. 4d. out of 251. 13s. 4d., the latter sum being the charge for a state of facts carried in before the Master in Ordinary pursuant to an order of the Court, dated 18th November, 1843, referring it to the Master to inquire whether