ted by Baron Alderson, who was also a shareholder in the Grand Junction Canal Company; and it was upon this account that the action was not heard during the time that Baron Alderson was on the bench. If the Lord Chancellor had been called as a witness in an action respecting this property, his evidence could not have been received on the ground of his interest. How then, could he, who was not allowed to be heard as a witness, determine the question as a Judge? His Lordship, therefore, had no power to make an order in the case, and, consequently, the order made by him was altogether void. On this point the following cases were citedDrewry v. Thacker (1), Great Charte v. Kennington (2), The Queen v. the Paving Commissioners of Cheltenham (3), The Queen v. the Justices of Hertfordshire (4). It was also contended that no breach of the injunction, restraining the defendant from impeding the navigation of the canal had been committed; all that he had done was to direct his clerk to keep watch at the canal, and take the numbers of the different barges that passed, for the purpose of bringing actions of trespass, and in doing so the clerk had stated to the men in the barges that they were trespassers upon the canal, but they were not stopped or impeded in any manner, and the injunction had not, therefore, been infringed. It was true that the defendant had brought fifteen actions against the company, but this was not an act restrained by the injunction. The order made did not go to prevent the question being tried at law, and the injunction now asked for to restrain these proceedings could only be granted upon a supplemental bill filed by the company for that

purpose.

Mr. Randell appeared for other defendants in the suit.

Mr. Stuart was heard in reply, only upon the question as to a breach of the injunction having been committed.

(1) 3 Swanst. 529.

(2) 2 Str. 1173.

(3) 1 Q.B. Rep. 467; s. c. 10 Law J. Rep. (N.S.) M.C. 99.

(4) 6 Q.B. Rep. 753; s. c. 14 Law J. Rep. (N.s.) M.C. 73.

The VICE CHANCELLOR.- In the first place my opinion is, that under the act of parliament which created the authority of the Vice Chancellor of England, I am bound to take all the decrees and orders made by the Lord Chancellor in the way in which I find them. The expression in the act (5) is, that the "Vice Chancellor shall have no power or authority to discharge, reverse, or alter any decree, order, act, matter, or thing made or done by any Lord Chancellor." I am not sorry that there has been this sort of discussion, because it has the effect of disseminating those principles of our law which are so material to be known throughout the country; but at the same time I cannot accede to the proposition that I, acting under the authority of this act of parliament, am at liberty to say that, because from some general principles of law, an act done by the Lord Chancellor may be considered void on account of his having an interest in the matter adjudicated upon, that therefore I am at liberty to treat it as void. It appears to me that I should be acting in opposition to the plain meaning of the act if I did not take every order made by the Lord Chancellor as it appeared on the face of it.

It is very much to be lamented that the state of His Lordship's health prevents him from deciding himself upon this case, but it does not follow because the Lord Chancellor is prevented from acting in the matter, that therefore I can. My opinion is, that I have no power to interfere, and the order must be taken as it stands; and consequently, the only question is, whether upon the facts stated, I am justified in committing Mr. Dimes for a breach of the injunction; and whether he ought to be restrained from continuing his actions at law. In such cases as these, it has always been the rule of the Court to see whether there has actually been a breach of the injunction, and not merely an intention to do so. A rebellious disposition is not sufficient, and it must be shewn that the intention has been carried out so as actually to contravene the very words found in the order of the Court. The terms of the injunction were to restrain the defen

(5) 53 Geo. 3. c. 24. s. 2.

dant, his agents, servants and workmen from in any manner stopping, impeding or obstructing, or causing or procuring to be stopped, impeded or obstructed, the passage of boats, barges or other vessels along the canal. Now, that injunction was pronounced in consequence of Mr. Dimes having placed some kind of bar across the canal, so as to operate as a complete obstruction to the navigation; and that being the species of obstruction which gave rise to the order, we must consider whether the terms of the order have been expressly violated. It does not appear from the affidavits, that the fact of placing a clerk, with a pencil and note-book in his hand, by the side of the canal had the least effect in impeding the navigation. If the clerk had personally interfered to prevent the bargemen from proceeding, the case might have been different; but I suspect strongly that such an interference would have led to a very different result. All the clerk seems to have done was, to take the numbers of the barges, and to use words intended to convey to the minds of the bargemen that they were trespassers; but my own opinion is, that such a proceeding would produce no effect whatever in preventing them from passing with their barges, and, in point of fact, there was no such effect produced. It appears to me, therefore, having regard to the terms of the injunction, and the narrative of facts which took place, that there has been no breach of the injunction, and therefore no reason for making an order to commit.

With respect to the other point, it seems to me to stand in a different position, because it is plain on the face of the decree that it was intended that the question should be finally settled between the plaintiffs and the defendant, and it is evident that by commencing these fifteen actions at law Mr. Dimes has committed an act which is inconsistent with and contrary to the tenour of the decree made by this Court. My opinion, therefore, is that on this point there must be an order for an injunction. I shall not, however, give any

costs.

66

A testator, by his will, gave to his wife 2,000l. Bank stock to give by will among any of his cousins most agreeable to her, but if not disposed of it was to be added to the general fund, and as residue go, share and share alike, between all his first cousins. The testator then gave to his wife for her life all the rest and remainder of his " property," real and personal, and all the money he had in the public funds, &c. with power to vary the same; and he gave his wife and executors power to renew or grant leases to the best advantage for herself and his heirs; and he gave his executors power to sell any of his estates, and fund the money, with power to give receipts. The testator then gave to each" of his twelve first cousins 100l. stock; he named eleven, and said "as my cousin W. A. B. has departed this life, I desire the same legacy may be transferred or paid between his children, share and share alike; hence I have allotted 1,2001. stock from my 5l. per cents. to be paid to my twelve first cousins." The testator then gave several other legacies, and after the death of his wife, said, "I give full power to my executors, their heirs or assigns, to collect all my property together, and sell the houses and other estates, and to convert into money all my funded property," and then to pay some legacies to several persons named. "Then the whole of the remainder of my property is be divided share and share alike to my aforesaid twelve first cousins and their children." The testa

tor appointed his wife and C. and M. executors of his will. He afterwards made a codicil to his will, and revoked the legacy given to Mrs. B. one of the first cousins, if she did not comply with a request he had made, but he declared that he did not thereby mean to exclude her children from the benefit she might thereafter possess in the final division of his property after the decease of his wife. At the decease of the tenant for life all the first cousins were dead, some had left children and others had died

without having disposed of their interests:Held, that the executors had power to sell the real estates, and that it was a conversion of the whole into personalty: that the interest of the twelve first cousins, including the first cousin who had died, vested immediately on the death of the testator as if all had been named; that the division was postponed till the death of the tenant for life; that the interest of each first cousin who died in the lifetime of the tenant for life, leaving children, was divested, and the children of such first cousin, including the children of the first cousin who had died in the lifetime of the testator, took their parent's share by way of substitution.

Thomas Baskerfeild, by his will, dated the 20th of December 1815, after giving his house at Colchester, with the furniture, &c. to his wife, and directing the trustees to transfer some settled stock to her, stated "I hereby give and bequeath to my dear wife all my 2,000l. Bank stock for her to give by will to and among any of my cousins as shall be most agreeable to her; that she may have it in her power to reward their kindness to her. But in case she does not choose to dispose of the same by her will, then that Bank stock to be added to the general fund, and as the residue, after my dear wife's decease, to go share and share alike between all my first cousins. And I hereby give, devise and bequeath to my dear wife for her natural life, all the rest and remainder of my property, real and personal, as freehold, leasehold, copyhold, and all the money I have in the public funds or various stocks at the Bank of England standing in my name; and I hereby give my dear wife full power to sell out, or exchange any of the stocks, and in that case to refund the same to the best advantage into the names of herself and my executors hereinafter named; and I hereby give my dear wife, with the executors named in this will, full power to renew or grant any lease or leases of my farms or houses, to the best advantage for herself and my heirs; and I hereby give them, my executors and executrix, full power to sell and dispose of them, if most convenient, and if so, the money arising from the sale thereof to be funded as above in their names in the Bank of England;

and I hereby give them full power to sell and dispose or charge the same, and their receipt or discharge, when signed by them, to be a good and perfect bargain of sale, and each one to be answerable only for their own misconduct, and not for the other."

The will then stated, "I hereby request my friends, Horatio Cock and Joseph Maberly, to be joint executors with my dear wife, who I hereby appoint executrix and residue legatee of this my will, and I give to my two friends, Mr. Cock and Mr. Maberly, for their trouble therein 501. each," and if they survived his wife, as at the final settlement of his property they would have more trouble, he gave them a further bequest of 1001. each.

The will then stated, "The following legacies and gifts I beg may be paid or transferred within the year after my decease. To each of my twelve first cousins I give 100l. stock from my 5l. per cents., to be transferred to them free of expense. To Mrs. Bray, Mrs. Frances Brandreth, Mrs. Alice Brandreth, Mrs. William Gape and her three sisters, Mrs. West, Mrs. Elizabeth Baskerfeild and Mrs. Catherine Baskerfeild, Mrs. Mary Margaret Baskerfeild, Mrs. Catherine Baskerfeild, her sister; Mr. Thomas Baskerfeild, Mrs. Burrell: and as it has pleased God to remove my cousin Captain William Alston Brandreth from this life, to I hope a better, in remembrance of him I desire the same legacy may be transferred or paid by and between his children share and share alike. Hence I have allotted 1,200l. stock from my 51. per cents., to be paid to my twelve first cousins." The testator then gave several legacies.

The will then stated, "And from and immediately after the death of my dear wife, and not before, then I give full power to my executors, their heirs as aforesaid, to collect all my property together, and sell the houses and other estates, and to convert into money all my funded property, and then to pay the following legacies to my godchildren," &c. and other persons named.

The will then continued, "And I give 50l. to each of my late cousin Nehemiah Brandreth's children, that is, to Mrs. Wilkins and her sister, Susannah Brandreth,

living near her. Then the whole of the remainder of my property is to be divided share and share alike to my aforesaid twelve first cousins and their children."

The testator made several codicils to his will, by one of which, dated the 8th of March 1816, after setting out an account of some stock belonging to Mr. Burrell's children, and naming the whole of them, he said, "It is most likely I may not live to see the youngest child come of age, and as this fund stands in the names of Mrs. M. Burrell and myself, and on my decease it will be wholly in her name, I wish, if possible, to secure the legacy to even the youngest, and therefore desire and hereby give full powers to my executors to withhold paying her the legacy I have left her, unless she agrees to place their names in the Bank with her for the security of the children's property, and if she will accept of Mr. Cock and Mr. Maberly being trustees, then she is to have her legacy; if not, I hereby revoke that bequest to her, but do not mean to exclude her children from the benefit she might hereafter possess in the final division of my property after the decease of my dear wife."

The testator died on the 1st of December 1816, without issue, leaving his wife surviving; he was possessed of very consider able real and personal estates, and upon the institution of this suit a decree was made, dated the 13th of June 1839, establishing the will and declaring that the trusts ought to be carried into execution, and directing very numerous inquiries.

On the 28th of April 1845 the Master made his general report, and among other things he found that Mrs. Bray, Mrs. F. Brandreth, Mrs. A. Brandreth, Mrs. W. Gape, Mrs. West, Mrs. E. Baskerfeild, and Mrs. C. Baskerfeild, Mrs. M. M. Baskerfeild, Mrs. C. Baskerfeild, the second of that name, Mr. T. Baskerfeild and Mrs. Burrell were eleven of the twelve first cousins of the testator named in his will, and that they were living at his death.

That Capt. W. A. Brandreth was the twelfth first cousin of the testator named in his will, and that he died in the lifetime of the testator.

That Dionysia, the wife of Henry Brandreth, Edward Atkins Bray, and Caroline, the wife of Robert Serrell Wood, three of

the children of Mrs. Bray; Catherine, the wife of John Walton, the only child of T. Baskerfeild; Peter Ashwell Burrell, Isabella Burrell, Mary Ann Burrell, Jane, the wife of Duncan Alexander Maddeford and Thomas Burrell, five of the children of Mrs. Burrell; Thomas Alston Brandreth, Hannah, the wife of Joseph Silver, Alice Ann Brandreth, Henry Rowland Brandreth and Alfred Brandreth, six of the children of Capt. W. A. Brandreth, were the only children of the said twelve first cousins of the said testator named in his will, who were alive at the time of the testator's death; and that there had not been any child of either of the said twelve first cousins born since his death.

That all the twelve first cousins named in the testator's will were since dead.

That Dionysia, the wife of H. Brandreth, Caroline the wife of R. S. Wood and A. Brandreth, three of the children of the testator's twelve first cousins, who were living at the time of his death, were since dead.

The Master then found who were the personal representatives, and also the heirsat-law, not only of the several twelve first cousins named by the testator in his will, but also of the children of the twelve first cousins who had since died; he also found which of them had died altogether intestate, or intestate only as to real estate, and which of them had devised such interest as they had in the testator's real estate to other parties, and to whom ; and this report was continued by a subsequent report, made in pursuance of a decree, dated the 27th of February 1846, in which, among other things, he found that Sophia Baskerfeild, the testator's widow and tenant for life died on the 29th of November 1846; and upon these reports the cause now came on to be heard.

Mr. K. S. Parker, Mr. Hodgson and Mr. N. Wetherell, for P. A. Burrell the plaintiff.—The gift was to a class of persons to be ascertained at a future period, and the time indicated by the will was the death of the tenant for life; it was then that the property was to be ascertained, and until then the interests could not be vested-1 Roper on Legacies, 588, 4th edit., 1 Jarman on Wills, 762. The direction was, that the whole of the remainder of the property was to be divided to his

aforesaid twelve first cousins and their children. It is, therefore, to be considered whether the word "children" was synonymous or in substitution. The will contained no gift, neither was there any trust for conversion created. The testator only gave a power of sale with a direction, upon the decease of his wife, to convert and divide among a class, so that no division was to be made until the time of distribution-Billingsley v. Wills (1), Ford v. Rawlins (2), Beck v. Burn (3), Cunningham v. Murray (4), Chevaux v. Aislabie (5), Hoghton v. Whitgreave (6); and the parties entitled must be those who could take by purchase-Buffar v. Bradford (7), Oates d. Hatterley v. Jackson (8), Jeffery v. Honywood (9), Wild's case (10), Murray v. Tancred (11).

Mr. Roupell and Mr. Willcock, for the other children of Mrs. Burrell.—The testator directed a conversion of the estate, and he referred to the constitution of a class to be ascertained at a future time. He could not have contemplated substitution; he knew the age and situation of the class he intended to take, most of whom could have no issue, and he must have had more regard for the children of first cousins than for the personal representatives of first cousins; the interests, therefore, were not vested-Salmon v. Green (12), Doe d. Stewart v. Sheffield (13), Viner v. Francis (14), Knight v. Gould (15).

Mr. Walpole and Mr. Grove, for the children of W. A. Brandreth.-The eldest son claims to be entitled to a share of the real estate, but the will gave the parties no option; a power of sale was given, and without it the legacies would not be paid;

(1) 3 Atk. 219.

(2) 1 Sim. & S. 328; s. c. 1 Law J. Rep. Chanc. 170.

(3) 7 Beav, 492; s. c. 13 Law J. Rep. (N.S.) Chanc. 319.

(4) 1 De Gex & S. 366; s. c. 16 Law J. Rep. (N.S.) Chanc. 484.

(5) 13 Sim. 71.

(6) 1 J. & W. 146.

(7) 2 Atk. 221.

(8) 2 Str. 1172.

(9) 4 Madd. 398. (10) 6 Rep. 16. (11) 10 Sim. 465.

(12) Ante, p. 166.

(13) 13 East, 526.

(14) 2 Bro. C.C. 658; s. c. 2 Cox, 190.

(15) 2 Myl. & K. 295.

NEW SERIES, XVIII.-CHANC.

it must, therefore, be considered that there was a conversion-Grieveson v. Kirsopp (16), Ashby v. Palmer (17), Smith v. Claxton (18); and where a gift was made to a class and their children, the issue could not be ascertained until the death of the testator, or the death of the tenant for life; but here the words "and their children," at the end of a direction to divide the residue among the twelve first cousins, evidently meant that the class should be ascertained at a future period-Lugar v. Harman (19), Butler v. Stratton (20), Wright v. Wright (21).

Mr. Follett, for E. A. Bray, the heir-atlaw and personal representative of Mrs. Bray.

Mr. Pryor, for the children of Mrs. Bray. The twelve first cousins became entitled per capita, and Mrs. Bray's children became entitled to her share.

Mr. Purvis and Mr. E. G. White, for Mr. Watton.-C. Watton is the heiressat-law of seven of the twelve first cousins. It is not said that there was any intestacy as to real estate, but she claims such interest as they have given to her by their wills. Eleven of the twelve first cousins took per capita, but the children of the twelfth took by substitution-Wild's case. And in the codicil of the 8th of March 1816 the testator in certain events revoked the legacy to Mrs. Burrell, but at the same time he declared that he did not mean to exclude her children from the benefit she might have possessed on the final division of his property. This clearly shewed that the testator intended the children of first cousins should have the benefit of the gift. It has been argued that no trust was created, and that the estates were not vested in trustees; that a power of sale was alone given; but as regards the testator's wife, there was a clear devise of the estates with power of sale, as well as power to lease, and this affected the whole gift.

Mr. Turner and Mr. Freeling, for T. A. Brandreth, Ambrose Frampton and Eliza

(16) 2 Keen, 653; s. c. 6 Law J. Rep. (N.S.) Chanc. 261.

(17) 1 Mer. 296.
(18) 4 Madd. 484.
(19) 1 Cox, 250.

(20) 3 Bro. C.C. 366. (21) 16 Ves. 188.

31