1840. Morrice v. Langham. take in remainder provided there was no issue of Sir James Hay Langham, those rents and profits which, on the face of the trust to preserve contingent remainders, were to be for the benefit of Sir James Hay Langham: which appears to me to have the effect of making the heir of Herbert Hay take, immediately, as the next person in remainder, notwithstanding the estate in the trustees to preserve contingent remainders for the benefit of the first and other sons of Sir James Hay Langham; which I take to be contrary to law, and moreover to involve this sort of contradiction; namely, that though the trustees were to take the rents and profits for the benefit of Sir James Hay Langham and his estate and interest is to cease, yet they are to hold them for the benefit of persons for whom they are in no sense trustees, any otherwise than as they might be trustees, in the first instance, to preserve the estate limited contingently to the first and other sons of Sir James Hay Langham, and so, if it were necessary, preserve the estate to the right heirs of Herbert Hay, but in no other manner whatever. *It appears to me that it is quite impossible to argue [*279] the case on behalf of the heir of Herbert Hay, without running into a manifest inconsistency, and without, in effect, contradicting the principle of Hopkins v. Hopkins, and other cases of that kind, which are unquestionable. It appears to me that the real effect of Stanley v. Stanley, Doe v. Heneage and Carr v. Lord Erroll, is this, that the courts are bound to construe the words of cesser, as near as they possibly can, in their simple and ordinary sense; and my opinion is that there is no mode whatever of construing the words of cesser in the will of Mr. Tutte, which can have the effect of giving any interest to the right heirs of Herbert Hay. The question then is this, whether, under the limitations in the deed of 1804, the person who is entitled to take, is Mr. Herbert Langham or Mr. Langham Christie. Now, with respect to that, I think that the point is reasonably clear; and, if the parties wish it, I will state my opinion, leaving them then to take the opinion of a court of law; or, if the parties prefer it I will not give my opinion and send the question to a court of law. 1840.-Morrice v. Langham. Mr. Knight Bruce said he wished that a case should be sent to a court of law, unprejudiced by his Honor's opinion. Mr. Jacob said that it was not the course of the Court to send a case to law, unless it wanted the assistance of a court of law to enable it to decide on the point in dispute and the question arose upon the limitation of a legal estate; neither of which cir cumstances existed in this case; for his Honor thought the point was reasonably clear, and all the limitations in the will, [*280] were *limitations of equitable estates, the legal fee having been vested in the plaintiffs and A. H. Strong, at the commencement of the will. THE VICE-CHANCELLOR :-It is perfectly true that the ques tion relates to an equitable interest; but nevertheless the right depends upon the true construction of the shifting clause in the deed of 1804; and, though I have very little doubt as to the construction of it, still if Mr. Knight Bruce presses for a case to be sent to law, I do not see how I can refuse it. The decree was drawn up in the following words: Declare the will of the Rev. Francis Tutte, the testator in the pleadings named, well proved, and that the same ought to be established and the trusts thereof performed. Declare that, according to the true construction of the testator's will, the rents and profits of the testator's copyhold estates, as from the 14th day of April, 1833, the time when the defendant Sir James Hay Langham became entitled to the settled estates of Sir James Langham of Cottesbrook Hall, so as to be in the actual receipt of the rents thereof, to the time of the decease of the said Sir James Hay Langham or until he should have male-issue, passed, by the residuary devise in the will, to Alexander Hale Strong deceased, and the plaintiffs, Frederick Edward Morrice and Arnold Wain-、 wright, in equal third parts, in manner and according to the directions and trusts of the will. And declare that the rents and profits, of the freehold estates in question in these suits, accrued and to accrue during the same period or any part thereof, were 1840.-Morrice v. Langham. not disposed of by the said will, and that the same belong to the person or persons who would have been entitled to such estates, under the indenture of the 12th day of April, [*281] 1804, in the pleadings mentioned, in default of any appointment, by the testator Francis Tutte, in exercise of the power therein contained. Order that a case be made for the opinions of the Barons of the Court of Exchequer, and that the questions in such case be: whether, under the limitations contained in the said indenture of the 12th day of April, 1804, and the proviso therein, supposing the appointment to have been made by the said Francis Tutte in exercise of the power therein contained, the defendant, Herbert Langham, is now entitled to any and what estate in the freehold hereditaments comprised in the said indenture, and whether the said defendant, Langham Christie,. is now entitled to any and what estate in the said freehold hereditaments, &c.(a) Note. The case directed, by the decree in this cause, to be made for the opinion of the Barons of the Exchequer, was argued in April, 1841. The Barons certified that, under the limitations in the indenture of the 12th of April, 1804, Herbert Langham, upon the death of Francis Tutte, did not become entitled to any estate in the hereditaments therein comprised, and that Langham Christie, on the death of Francis Tutte, became entitled to an estate for life in the said hereditaments. (See 8 Mess. & Wels. 194.) (a) An appeal is pending in the House of Lords against this decree. 1840.-Piper v. Gittens. [*282] 1840 18th November. *PIPER v. GITTENS. On the 25th of July the defendant served a notice of motion to dismiss, to be made on the 29th, the next seal. On the 27th, plaintiff replied, and tendered 20s. costs to defendant, which the defendant refused to accept until he had ascertained whe ther he ought to do so or not, and the whole of the 28th was allowed him for that purpose. At eight o'clock in the evening of the 28th, plaintiff instructed counsel to appear on the motion. At ten in the morning of the 29th, defendant said he would accept the costs. The Court held that he was loo late, and ordered him to pay the costs of the motion, minus 20s. ON the 25th of July, the defendant served the plaintiff with notice of a motion, to be made on the 29th, which was the then next seal-day, to dismiss the bill for want of prosecution. On the 27th, the plaintiff filed a replication; and, on the morning of the 28th, tendered, to the defendant's solicitor, 20s. costs. The solicitor declined to accept the costs, until he had ascertained whether he ought to accept them or not; and the whole of the 28th was allowed him for that purpose. Between eight and nine o'clock in the evening of that day, the plaintiff's solicitor, not having received any further communication from the defendant's solicitor, delivered a brief to counsel to appear upon the motion. At ten o'clock in the morning of the 29th, the defendant's solici tor said he would accept the costs; but was then told that he was too late, as the plaintiff's brief had been delivered to counsel on the preceding evening. Mr. Lowndes, for the motion, said that the defendant's solicitor was allowed the whole of the 28th to consider whether he would accept the costs or not; and, therefore, the plaintiff's solicitor, was too precipitate in delivering his brief to counsel on that day. Mr. Knight Bruce, for the plaintiff, said that the whole day, meant only the business hours, and that the next day was the seal-day. 1840.-Brown v. Douglas. THE VICE-CHANCELLOR said that if the defendant's solicitor was to have the whole day to consider whether he would accept the costs or not, he ought to have given his decision on that day, between eight and nine o'clock at the latest: and he ordered the defendant to pay the costs of the motion, minus 20s. *BROWN v. DOUGLAS. [*283] 1840 23d and 25th November. A. B. C. and D. where co-partners. A. and B. died, and, soon afterwards, C. and D. became bankrupt. M., who was a creditor of the firm at the deaths of A. and B. and at the bankruptcy, filed a bill, on behalf of himself and all the other creditors of A. and B., against the executors (who, however, had not proved) and devisees of both A. and B. and the assignees of the bankrupts, for the purpose of having the real and personal assets of both A. and B. applied in payment of their joint and separate debts. Held that the administration of the two estates might be comprised in one suit, and, therefore, a demurrer for multifariousness, was over-ruled. An objection, however, made ore tenus, that no properly constituted personal representatives of A. and B. were parties, was allowed: but the Court did not give the plaintiff the costs of the demurrer on the record, but merely allowed the demurrer ore tenus, without costs. IN 1839, Douglas, Sedgwick, Weatherby and four other persons, carried on the business of cotton-spiners, in co-partnership, at Holywell in Flintshire, under the firm of Douglas, Smalley & Co.; and Douglas & Weatherby, carried on the same business, in co-partnership, at Pendleton in Lancashire, under the firm of W. Douglas & Co. Sedgwick died on the 3rd, and Douglas on the 21st of October, in that year. In April following, the surviving partners became bankrupt. At the deaths of Sedgwick and Douglas, and at the time or the pankruptcy, a debt was due, from each of the two firms, to the Manchester Joint Stock Banking Company. The Company proved, under the fiat, the debt due from Douglas, Smalley & Co.; but had received no dividend on that proof; and they had not proved, against Weatherby's separate estate, the debt due from W. Douglas & Co. The bill was filed by the banking company in the name of |