is impossible; but whatever is raised beyond what is required retains its character of real estate. In my opinion, all these cases are rightly decided, and all are consistent. They clearly establish that this is personal property, and belongs to John's estate, as part of his personal property, and must at his death go accordingly. VICE-CHANCELLOR KINDERSLEY'S COURT. REWE v. WHITMORE.-June 24 and 25. Account-Receipts and judgments-Evidence. In taking accounts as between merchants or traders, entries in the books of one party of sums received by him to the credit of the other, are good evidence in favour of the latter. On the other hand, entries in the same books, of payments made by the one on account of the other, are not conclusive, but must be proved by the former in the usual way. Adjourned summons.-This was a mortgagee's suit; and the object of the present application was that, in taking the accounts between the several incumbrancers, parties standing in the place of the first mortgagee might be allowed to make use of certain books of accounts as evidence of payments made by him to the mortgagor, if they were to be bound by entries in the same books of sums admitted to have been received by that mortgagee for the benefit of the mortgagors. The mortgagor Simpson was the owner of a brickfield, and employed Green as agent and manager in carrying on his business there; in course of which large sums of money were received and paid by Green on account of Simpson. The accounts were kept by the former; and it appearing at a certain period when the parties came to a settlement, that Simpson owed Green between 20007. and 30007., it was arranged that Simpson should give Green a mortgage of the brickfields and stock of bricks, &c., for securing the amount. The consideration stated was 3000l., but the deed was accompanied by a memorandum, stating that 22001. only was actually due; making the transaction a mortgage for a sum due, and for further advances, up to 30007. the latter view of the case, and the decree (stating that no notice had been given by Messrs. Martin to Simpson of the deposit) declared them to be subject and liable to all the equities which existed between Simpson and Green at the date of the bankruptcy of Green, and that they could claim the benefit of the deposit to the extent only of what remained due under the indenture from Simpson to Green at the date of Green's bankruptcy. On taking this account in chambers, the parties interested under Simpson proposed to put in evidence Green's books to shew the sums which he admitted himself to have received from Simpson subsequently to the date of the security, on the ground that such entries were good evidence as against Green, and therefore, by the terms of the decree, also against Messrs. Martin. Messrs. Martin objected to this, maintaining, that even if good as against Green, the entries of receipts were not good as against them; and further contending, that if these books of account were put in to prove entries of receipts, they were entitled to use the same books to prove entries of payments made by Green as against Simpson, and that such entries would be good evidence of the payments as against Simpson. W. Pearson appeared for the plaintiffs, in support of the summons. Fry, for the defendant Henrich. The following cases were cited;-Duchham v. Walla (2 Stark Ev. 33, B. 60); Catt v. Howard (3 Stark. N.P. 3); Shaw v. Broom (4 Dow, 730); Harrison v. Vallar (1 Bing. 45); Prichard v. Draper (1 Russ. & M. 19); Crosse v. Bedingfield (12 Sim. 35); Talbot v. Rutledg (4 Bro. C. C. 74); Carter v. Lord Coleraine (Barnard 126; Eq. Cas Ab. 227); and Boardman v. Jackson (2 Ball & B. 382). Sir R. T. KINDERSLEY, V. C.-I do not feel the slightest doubt but that if Green had not parted with his security, the entries in his book of account of receipts by him would have been good evidence in favour of Simpson, as against him; and by the terms of the decree Messrs. Martin must stand in the same position as Green would have stood. Supposing that to be so, would Green be entitled to Soon afterwards Green deposited Simpson's mort- say to Simpson, "You use these documents as evigage with his bankers, Messrs. Martin, to secure ba-dence against me as to receipts; I am entitled to use lances due to them, but the fact of the deposit was them as evidence, and they are good evidence for me, not communicated to Simpson. of payment as against you?" That is the main question in the case. Fourteen charges were made by Simpson on the brickfield; and the priorities of the different mortgages ultimately stood thus:-Green, first; Henrick, second; and then Reeve, the equity of redemption remaining in Simpson. Green and Simpson both became bankrupts, but the dealings between them continued up to the date of the bankruptcy of the former; the account between them was consequently carried on, shewing a great many receipts and payments by Green subsequently to the date of his security. There was no evidence that these accounts were ever delivered to Simpson, or that he knew anything of the items contained in them. It is very extraordinary that there is no direct authority on the point, and that we must go back for what authorities there are to Barnardiston and Eq. Cas. Ab. It is true that there is a general rule of law, that if a document or letter is put in evidence as to one part by one side, the other side has the right to have the whole read as evidence either for or against him; and the question is, does that rule apply to merchants' and traders' accounts? Does every entry in their books of account become evidence because the books have been put in to prove particular entries? It appears to me that it does not follow that that is the case. Looking at the question in the abstract, it would work great injustice if such a rule prevailed. Reeve, the mortgagee last in priority, then filed his bill, and, when the case came to a hearing, one of the questions raised was as to the rights of Messrs. Martin; on whose behalf it was contended, that they stood In the ordinary dealings among merchants who pay in the same position as that of Green at the date and receive moneys the one from the other (of course, when they took the deposit from him; and on the not supposing the case where the accounts are comother hand it was urged, that not having communi-municated to each other, as with bankers), it appears cated the fact of the deposit to Simpson, they could not stand in any better position than that which Green ultimately held, depending on the result of the accounts between Simpson and Green. The Court took to me that, according to the principles which must be applicable to them, cach merchant is chargeable with what he admits he has received; but he must prove in the regular way the items he says he has paid. Suppose the case of a merchant in Rio Janeiro receiving a consignment of goods from a merchant in London for sale there; he is the only one who knows what he has sold, and the London merchant knows nothing about it. If the Rio merchant enters in his books such a sum of goods sold, it stands to reason that he should be debited in account with that sum which he says he has received. But how does it stand with sums he may say he has paid? He must prove the payment, and the entry in his books cannot have the effect of throwing the onus of such proof on the London merchant. There is nothing special in this case, and there being no authority on the point, I must hold the rule to be, that a merchant is bound by all the entries in his books of receipts by him, but the entries in the same books of payments by him are not evidence in his favour to prove that he made such payments. When an executor is called upon in the ordinary way to bring into chambers a debtor and creditor account, which he is bound by the act of Parliament to bring in, the plaintiff upon that account is entitled to charge him with his entries of receipts, but he cannot discharge himself by his entries of payment: it is not because a man has thought fit to admit certain receipts, that he may use as evidence of payment any entries he has made in the same book. It appears to me, therefore, that the entries of Green's receipts are good evidence against Messrs. Martin, who stand in the same position as Green, but that Messrs. Martin must prove in the regular way payments made by Green, the entries of payments by Green not being good evidence as against Simpson. In what I have above stated I assumed that the different items were quite unconnected, but some entries of payments may be so made and connected with entries of receipts, that the use of one may entitle the other party to use the other; as where a receipt and payment are mixed up with the same transaction. VICE-CHANCELLOR STUART'S COURT. J. S. devised lands to his sons W. and J., to hold to them, their heirs and assigns, as tenants in common, and not as joint tenants, and he declared, that in case any of his soms should happen to die without any issue of his or their body or bodies lawfully begotten, that the share of him or them so dying should go to, and be equally divided amongst, the survivor or survivors of them in equal shares and proportions, to hold to them, their heirs and assigns, as tenants in common and not as joint tenants. J. S. charged a gross sum upon the lands in favour of his other children:-Held, that the words of the devise created an estate tail. The question in this case was, whether under the devise in the will of Joseph Sykes the elder, of Golcar, in the county of York, an estate tail had been created, or whether it was a devise of an estate in fee-simple, with an executory devise over. then the share of him or them so dying should go to, and be equally divided amongst, the survivor or survivors of them his said children (as well sons as daughters), in equal shares and proportions, to hold to them, their heirs and assigns, as tenants in common and not as joint tenants; and in case any of his said children should happen to die leaving lawful issue before any such should die without lawful issue, then that such issue of him or them so dying should take and be entitled to the share he or they so dying would have been entitled to if living, to hold to them, their heirs and assigns for ever, as tenants in common and not as joint tenants. The testator directed that a sum of 3007. should be raised out of the property, and be paid to the persons mentioned in the will. He died in January, 1838, and his will was proved in March following. Shortly after the testator's death a partition of the lands devised to his sons was made. Joseph Sykes the younger being desirous of adding to the value of the closes allotted in severalty to him, expended 5007, and upwards in erecting buildings thereon, and making improvements. By an indenture, dated the 13th October, 1857, which was duly inrolled in Chancery, as a disentailing deed, in pursuance of the 3 & 4 Will. 4, c. 74, after reciting the will and partition, it witnessed that Joseph Sykes the younger conveyed his lands to Richard Taylor to secure the repayment of the sum of 2001. and interest at 5l. per cent., freed and discharged from all estates tail, and all remainders and reversions expectant and depending thereon, subject nevertheless to the proviso for redemption. Joseph Sykes the younger, by his will, dated in June, 1862, after directing his debts to be paid, devised his lands in Golcar, subject to the mortgage debt, unto two trustees (the plaintiff Daniel Taylor and the defendant Lee), their heirs, &c., to hold, upon the trusts therein mentioned, for the benefit of his (Joseph Sykes the younger's) wife and his children therein named. This testator died in July, 1862. He left no issue of his first marriage, and the issue by his second wife, she being a niece of his first, were illegitimate. Richard Taylor, the mortgagee, died in January, 1862, leaving his brother John his heir-at-law, and leaving Walker and Lockwood his executors. and Lockwood, and after paying the mortgage debt, Part of the mortgaged property was sold by Walker interest, and costs, there was a surplus of about 1001. Another part of the mortgaged property was sold for 2501. The two daughters of Joseph Sykes the elder and others alleged, that by the death of Joseph Sykes the younger, without any issue of his body lawfully begotten, they became, in the events which had happened, entitled to the said surplus and purchase money. The widow of Joseph Sykes the younger was in possession of the property, which was sold for the sum of 2501.; and the purchaser brought an action of ejectment against her to recover possession, and obtained a verdict. The bill prayed for an account, and that the representatives of Richard Taylor might be decreed to pay to the plaintiff Daniel Taylor and the defendant Lee the said surplus and purchase moneys; and the bill also prayed for an injunction, and for a conveyance of the property. By his will, dated the 29th December, 1837, Joseph Sykes the elder devised unto his two sons William R. W. Elliott Forster, for the plaintiffs, the acting Sykes and Joseph Sykes the younger, certain closes of executor of the will of Joseph Sykes the younger, his land therein described, to hold to them, their heirs and widow and children, contended that the devise in the assigns, as tenants in common and not as joint tenants, will of Joseph Sykes the elder created an estate tail, and he gave unto his daughter Sarah Furness, widow, and that, in the events which had happened, they a small piece of land, to hold to her and her heirs and were entitled to the money. [He referred to Hughes assigns for ever. The testator declared, that in case v. Sayer (1 P. Wms. 534); Barlow v. Salter (17 Ves. any of his sons or daughters in his will mentioned, 479); Massey v. Hudson (2 Mer. 130); Greenwood v. should happen to depart this life without any issue of Verdon (1 Kay & J. 74); Jones v. Cullimore (3 Jur., his or their body or bodies lawfully begotten, that | N. S., 404; and see the cases there cited, p. 405); and Campbell v. Harding (2 Russ. & M. 390; S. C., 8 Bligh, | By a codicil, dated in January, 1851, the testator made 469).] Humphry appeared for the defendants Walker and Lockwood, and asked that they might be allowed to pay their costs out of the money in their hands. Malins, Q. C., Buchanan, and T. C. Wright, for other defendants, submitted, that Joseph Sykes the younger did not take an estate tail, but an estate in fee-simple, subject to an executory devise over in fee in the event of his dying without leaving issue in the lifetime of other children of his father. Joseph Sykes the elder having charged this property with the sum of 3007. in favour of other children, shewed that it was not his intention to create an estate tail. Further: a gift to a man and his heirs and assigns must be construed to mean in fee-simple. [They cited Pell v. Brown (Cro, Jac. 290; Fearne's Cont. Rem. 418); 2 Jarm. Wills, 483; Sheers v. Jeffery (7 T. R. 589); and Gee v. The Corporation of Manchester (17 Q. B. 737).] Sir J. STUART, V. C.-I consider that the words of the devise in the will of Joseph Sykes the elder created an estate tail, and there must be a decree to that effect, and for costs against all the defendants, excepting the representatives of the mortgagee, who must pay their own costs. some alterations in his will; and he thereby revoked a bequest to his son Daniel of the proceeds of certain policies of insurance, and bequeathed such proceeds unto all his sons and daughters then living, and the children of his deceased daughter Susannah, in the manner therein mentioned. By another codicil, dated in October, 1851, the testator devised and bequeathed all his shares, estate, and interest in the company of proprietors of the Norfolk Estuary, and the lands, property, income, and effects of the company, unto and between all his sons and daughters then living, and the child or children of his deceased daughter Susannah Kent, their heirs, executors, administrators, and assigns, for their absolute use and benefit, in equal shares, as between brothers and sisters, but so that the child or children of his said deceased daughter should take only the share which she would have taken if living. And he directed, that all calls and payments to be made and become due after his decease, in respect of his shares in the company, should be borne and paid by his said children and grandchildren, in equal shares and proportions, according to their respective estates and interests therein. The testator died in August, 1852, and his widow died on the 27th June, 1863. The defendant Daniel Kent entered into possession of the real estates devised to him; and he got in the personal estate, and out of it paid the testator's debts (except some calls on the Norfolk Estuary shares), and the funeral and testamentary expenses, and the legacies given by the will, except the three legacies of 1000 each, and other legacies of smaller amount. The real and personal estate belonging to the testator, which the defendant Daniel Kent chimed to be entitled to under the will, was alleged to be of the value of about 20,000%. The testator, as the owner of shares in the Norfolk Estuary Company, was liable to pay the calls made in respect of each share held by him, and on a call being made, the amount thereof became, as alleged, a debt due from him or his estate to the company. J. K., by his will, devised estates to his son D., charged with a legacy of 1000l. to his daughter, the plaintiff M.; and by a codicil he bequeathed all his shares in the Norfolk Estuary Company unto all his sons and daughters equally, and directed that all calls and payments to be made and become due after his decease should be borne and paid by them in equal shares. M. and her husband gave notice to the executors that they declined to accept the legacy of the shares, and they refused to take a transfer of them. Subsequently calls were made upon the executors, and D. paid them; and he refused After the decease of the testator, it appeared, as the to pay the legacy of 1000l., without deducting the sum bill alleged, that the undertaking called the Norfolk of 3181. 158. thereupon, and without the husband of M. Estuary would be profitless for a long time at least, taking a transfer of the shares, and giving an under-even if it should thereafter turn out to be not a losing taking to pay all future calls. On bill filed by M. by her next friend, it was held that she was entitled to the legacy of 10001., without deduction, and that she had a right to disclaim the legacy of the shares. This suit was instituted by Martha Long by her next friend, to obtain the payment of a legacy of 10007., under the following circumstances: Jeremiah Kent, of Little Wilbraham, in the county of Cambridge, by his will, dated the 1st July, 1850, after devising certain hereditaments to his son, the defendant George Kent, gave and devised the residue of his freehold and leasehold lands and hereditaments unto his son, the defendant Daniel Kent, his heirs, executors, administrators, and assigns; chargeable, nevertheless, with the payment of an annuity to his wife, and of the legacies to his children and grandchildren, given by his or any codicil thereto, but not so as to exempt his personal estate from the payment thereof. The testator then, inter alia, bequeathed to his son George the sum of 5007., and also to each or his daughters, the plaintiff Martha Long, Amelia Ambrose, and Louisa Kent, the sum of 10007. sterling, to be paid to them respectively at the expiration of twelve months next after the decease of his wife. After making other bequests, the testator bequeathed the residue of his personal estate unto his son Daniel Kent, for his absolute use and benefit. The testator appointed his wife and the defendants George Kent, Daniel Kent, and Hanslip Long, executrix and executors of his will. concern, of which the plaintiff and her husband were afraid; and they considered that they were entitled to accept and enjoy the legacy of 10001. given to the plaintiff by the will, and also her share of the moneys arising from the said policies of insurance, and to reject the gift of the shares contained in the codicil. so far as the plaintiff or her husband could have claimed under the codicil of October, 1851; and it was, therefore, the desire and object of the plaintiff and her husband not to accept the legacy of the shares in the Norfolk Estuary Company; and they accordingly gave, on the 3rd September, 1853, to the executors a notice, in the following terms: cline to accept the legacy of the portion of the Nor"Gentlemen,-We beg to inform you, that we defolk Estuary shares bequeathed to the undersigned Martha Long, and disclaim the bequest. (Signed) "HANSLIP LONG. "MARTHA LONG." The plaintiff and her husband had, previously to such formal notice, refused to accept the bequest of the shares, and had refused to take a transfer of them In September or October, 1854, a call was made by the directors of the company upon the executors of the testator, in respect of the shares held by him, and they threatened proceedings to obtain payment; and thereupon the solicitor of the executors, in pursuance of instructions, applied to the plaintiff and her hus band for their proportion of the call, and Hanslip Long, and other legatees, again informed the solicitor of their distinct and positive determination not to accept the shares, or make any payment in respect of calls thereon. The defendant Daniel Kent paid the last-mentioned call, and he subsequently, in June, 1864, claimed to deduct the calls on the shares from the legacies given by the will; but the plaintiff and her husband again refused to accept any of the shares, or to submit to such deduction from the sum of 10007. given by the will to the plaintiff; and thereupon the solicitor of Daniel Kent refused to pay the legacy. The defendant Hanslip Long was, as one of the exeentors, subsequently required by his co-executors to execute transfers of the shares into his own name and the names of other legatees, but he refused to do so; and thereupon the solicitor of the co-executors refused to pay any of the legacies. The defendant Daniel Kent alleged, that the number of shares intended for the plaintiff was twelve and a half, and that he had, since the deccase of the testator, paid for calls on them the sum of 251. 10s. for each, and that further calls might be made to the amount of 10l. 10s. for each share; and he also alleged, that the whole amount which he had paid was 3187. 158., and the whole amount of future calls which might be made was the sum of 1317. 58. The plaintiff snbmitted, that at the expiration of twelve months after the decease of the widow of the testator, she became entitled to payment of the legacy of 1000l., and alleged that such payment had, after request made, been refused by Daniel Kent, wthout deducting the sum of 318. 158., and unless Hanslip Long would make a transfer of the shares, and give an undertaking to pay all future calls. The bill prayed for a declaration, that the plaintiff was entitled to the legacy of 1000. free from the payment of the calls on the shares, and without it being obligatory on herself or Hanslip Long to accept any of the shares: that the defendants might be ordered to raise the money out of the residuary personal estate; or if they should not admit assets sufficient for that purpose, then for account: that in case the residuary personal estate should be insufficient, then for a declaration that the 1000l. was a charge upon the real estate devised to Daniel Kent, and for directions for raising the same, and that the 1000, or such part as to the Court should seem fit, might be settled upon the plaintiff and her children; and for inquiries and accounts. The secretary of the company, in reply to a statement in an affidavit made by two daughters of the testator, that there were at his decease two calls in arrear, deposed that all the calls made upon the testator up to the period of his decease were paid at and upon the days when the same became due, without any compulsory steps being taken by the company, or the directors thereof, to obtain payment of such calls. Bacon, Q. C., and G. Simpson, for the plaintiff, stated the facts, and were stopped by the Court. Bristowe, for the defendant Daniel Kent, the residuary legatee, contended, that if he should be ordered to pay these calls out of the residue, there would be no residue at all. The implication of intention upon the part of the testator was perfectly clear, and it was, that he did not intend to throw upon that portion of his estate which he had given to his son Daniel the burthen which these shares might be subject to. The case of Talbot v. Lord Radnor (3 My. & K. 254) was directly in point, and there ought to be a direction that, in taking the accounts, each of the legatees of these shares should bear their proportion of the calls. He also referred to, and distinguished, the cases of Moffatt v. Bates (3 Sm. & G. 468) and Warren v. Ball (1 Johns, & H. 1; 6 Jur., N. S., 395).] Ince appeared for the defendant Hanslip Long. Sir J. STUART, V. C.-I have no intention to overrule the decision in the case of Talbot v. Lord Radnor ; but I intend to adhere to the principle which governs all the cases, and which has been clearly laid down. This is a question of intention, and unless I can find, which I cannot, an intention on the part of the testator, to connect the gift of these shares with the legacy of 1000l., I have no warrant for saying that the legacy is not an independent gift, nor that the legatee has not a clear right to the 1000. I also think that she has a right to disclaim the gift of the shares; and there must be a declaration accordingly. The donee of a general power of appointment over a sum of Consolidated Bank Annuities, ly will gave various specific and pecuniary legacies, including a gift of Indian Stock, and appointed executors, but the will did not contain any general gift or reference to the power :Held, not an execution of the power under the 27th section of the Wills Act. Hawthorn v. Sheddon (3 Sm. & Gif. 293; 2 Jur., N. S., 749) observed upon. Petition. The question was, whether or not, having regard to the 27th section of the Wills Act, a power of appointment had been validly executed under the following circumstances: Robert Ashton, by his will, dated the 21st September, 1850, gave to trustees the sum of 18007., 37, per Cent. Bank Annuities, upon trust to pay the annual produce to Frances Bridle for life, for her separate use, and after her decease, upon trusts for her issue; but in case she should die without having any child, he directed that from and after her decease, his trustees should stand possessed of any portion, not exceeding one moiety of the said 18007. Consols, in trust for such persons, and in such manner, and for such intents and purposes, as she should by deed or will ap point; and in default of such appointment, he directed the said Consolidated Annuities to fall into the residue of his estate, which he devised and bequeathed upon certain trusts. Robert Ashton died on the 30th July, 1851. A sum of 18007. Consols was purchased to answer the bequest in favour of Frances Bridle, and subsequently, in the events which happened, a further sum of 1000l. was, under a direction in the will, purchased out of the residuary estate of the testator, and appropriated to the same bequest. *The 27th section of the Wills Act (1 Vict. c. 26), is as follows: "And be it further enacted, that a general devise of the real estate of the testator, or of the real estate of the testator in any place, or in the occupation of any person mentioned in his will, or otherwise described in a general manner, shall be construed to include any real estate, or any real estate to which such description shall extend (as the case may be), which he may have power to appoint in any manner he may think proper, and shall operate as an execution of such power, unless a contrary intention shall appear by the will; and in like manner a bequest of the personal estate of the testator, or any bequest of personal property any personal estate, or any personal estate to which such description shall extend (as the case may be), which he may have power to appoint in any manner he may think proper, and shall operate as an execution of such power, unless a contrary intention shall appear by the will." described in a general manner, shall be construed to include COURT OF COMMON PLEAS. EASTER TERM. A suit was afterwards instituted for the administration of the estate, and the sum of 28001. Consols was paid into court, in trust in the cause, to a separate ac count, and the income was ordered to be paid to Frances [Before ERLE, C. J., BYLES, KEATING, and SMITH, JJ. Bridle until further order. Frances Bridle died a spinster, on the 5th June, 1865, having made her will, as follows:-" I, Frances Bridle, leave 100l. to Mr. Simmons's children; this house, No. 34, New-street, to Mr. Simmons and his heirs; 4007., Indian Bonds, to be transferred for Margaret Shea's benefit during her lifetime, at her decease to go to Ellen Field; 107. for a ring to Nowell Stowers; 201. for each of my executors, Barrington Piers and William Whitehouse; my watch and chain to Annette Simmons; my jewellery, trinkets, and portrait of my mother I leave to Fanny Rose Piers." LOCKE v. FURZE.—May 11. Damages-Covenant for quiet enjoyment in a reversionary lease-Defect of title-Interesse termini—Value of term. The plaintiff entered into possession of premises under a lease expiring in 1864, and in 1860 obtained from the same lessor another lease of the same premises, to com mence from the termination of the former lease. Bem the expiration of the first lease, the second lease was n pudiated by one claiming under a good title. In a action for breach of the covenant for quiet enjoymen under the reversionary lease-Held, that the plantý was entitled to recover from the lessor the value of the term of which he had been deprived, and not merely the damages ordinarily given on the breach of a contract for the sale of land. This petition was now presented by the trustees of the residuary estate of Robert Ashton, praying that the sum of 28001. Consols might be transferred to the credit of the cause generally, and the dividends paid to them to be applied as part of the income of the testa-Held also, that no damages could be given in additae te tor's residuary estate, under the trusts of his will; and the only question was, whether the will of Frances Bridle, if her assets proved insufficient, operated as an exercise of the power of appointment given her by the will of Robert Ashton. Rolt, Q. C., Sheffield, T. A. Roberts, and Pemberton appeared in the case. Judgment was reserved. July 25.-Sir W. P. WOOD, V. C.-In this case the question is, whether a person having a power of appointment over a sum of 28001., 31. per Cent. Consolidated Bank Annuities, and having made a will in this form [His Honor stated it as above], has exercised the power. If this were res integra, I should have had no doubt upon the point, as it seems to me that the 27th section of the Wills Act is clear in its interpretation. I always understood the words to mean, that whereas before the intention of a testator was frustrated by using words which imported "property," and not "power," it should not be so any longer, and that the same rule should prevail as to real and personal estate. Therefore, if a testator says, "I give all my estate in Warwickshire," that includes all he has there, whether it be property or what he has a general power over. And so as to personal estate, a general gift includes all. In like manner, if a testator has a power over jewels or leaseholds, and gives "all my jewels" or "all my leaseholds," these gifts would be an exercise of his power; and this seems correct and suitable enough. I was surprised, however, to find the decision of Hawthorn v. Sheddon (3 Sm. & Gif. 293; 2 Jur., N. S., 749), and also to find it approved by Lord St. Leonards in his book on Powers, p. 310, 8th ed.; and I should have had great difficulty in deciding this case if it had been on all fours with that one. But there the gifts were all pecuniary, while here there is a gift of Indian Stock, and the case is, therefore, not so strong, though there is an appointment of executors. And in the case of Shelford v. Acland (23 Beav. 10; S. C., 3 Jur., N. S., 8), a doubt is expressed whether the words of the statute go to the full extent which Vice-Chancellor Stuart seemed to think they did in Hawthorn v. Sheddon. Here I am asked to say that a gift of Indian Stock ought to be considered an appointment of a sum of Consolidated Bank Annuities. No doubt, if you describe the fund in a manner applicable to pass it, it will do so, but if you give a sum of 10007., that gift will not pass leaseholds. There must, therefore, be an order according to the prayer of the petition. the above, as for a compulsory sale. The declaration stated, in the first count, that by an indenture, dated the 14th February, 1860, betwe John Furze (since deceased) and the plaintiff, it was witnessed, that for and in consideration of 4001 paid &c., the said John Furze did demise and lease to the plaintiff No. 6, St. James's-street, to have and to holk the premises thereby demised, with the appurtenances, to the plaintiff, &c., from the 4th December, 1864, which time an existing lease would expire, for twentyone years and twenty-one days, at a rent for the first twenty-one days of 107., and for the remainder of the term of 1757. a year; and the said John Furze did. thereby covenant with the plaintiff, his executors, &c that the plaintiff, &c. should and might peaceably and quietly have, hold, and enjoy the premises during the said term, without the lawful let, suit, trouble, denial, interruption, molestation, or disturbance of or by the said John Furze, his heirs or assigns, or any of them, or any person or persons whomsoever, claiming or ta claim by, from, through, under, or in trust for hi them, or any of them. Averment of all conditions being fulfilled. Breach, that before and during the term, one F. Vickers, then lawfully claiming the premises through the said John Furze, and having a good title to them and to the possession thereof, claimed and demand.d them of the plaintiff, and threatened to oust him from the possession and enjoyment thereof, whereby the plaintiff could not, and did not, peaceably have, hold, and enjoy them, &c., and by reason of the premises the plaintiff was forced and obliged to, and did, take and accept a lease of the said premises from the said F. Vickers for seven years from the 25th December, 1864, at an increased rent of 300l. a year, and was put to great trouble and expense and costs in obtaining such lease, and hath lost the benefit of the lease granted by the said John Furze, and the 400% paad for the same. Second count, for money received by John Furse in his lifetime for the plaintiff's use. Pleas-second, to first count, that the plaintiff never had or entered into possession of the said demised premises under or by virtue of the said lease, as alleged. Fourth, to first count, that the said F. Vickers did not claim or demand the said premises from the plaintiff, nor threaten to oust him from the possession or enjoyment thereof, as alleged. Fifth and sixth, to second count, never indebted, except as to 4177., and payment into court of that sur Joinder of issue on all pleas, and demurrer to the second plea. |