a provision for the family in general, and particularly for Miss Julia Barrington, to place himself in loco parentis. In the first place, it appears that Sir John Barrington allowed his brother 400l. a year, which he in 1797 voluntarily bound himself to pay during his life. I take no notice of Mr. Fitzwilliam Barrington's diary, as I do not consider that can be evidence between these parties, of the facts it contains, there being no proof that it ever came to the knowledge of Sir John. Sir John Barrington's bankers, however, prove the payment to the brother of large sums, in addition to his annuity. But his letter of the 11th of July 1818, referred to by the Vice Chancellor, is a most important document, shewing that he had taken his brother's family under his protection, and that his principal object in the appropriation of his property, was to provide for them; that he had always been preparing to supply his brother with cash en masse; that on Lady Simeon's marriage, he had made a disposal of the Isle of Wight property, for the benefit of his brother's family; and on Mrs. Powys's marriage, he had made another will, improved upon, as he concluded, by the destination of his tithe property in Essex, in trust, to form a fund to raise the very heavy demands that would press on the Isle of Wight estate: that in the framing of these wills, he had acted altogether free from any personal consideration, following the order of priority of birth as the rule for it. Part of these demands on the Isle of Wight estate, was the provision for Mrs. Powys; and it is to be observed, that he speaks of the object of the arrangement of 1817, as being to provide an additional fund to answer the pre-existing demand, and not intending to create a new one. The testimony of the witnesses carries this part of the case somewhat further, and proves that the brother's family were, in fact, maintained by Sir John Barrington, the income of the brother not exceeding 400l. or 500l., per annum, and Sir John making up the deficiency to cover the expenses of the family, which were considerable. It cannot be material whether the music-master, or the drawing-master, or the dress-maker, received what was due to them from the hands of their father, when

it

appears their uncle furnished the means. The arrangements on Lady Simeon's marriage in 1813, are important, as shewing that at that time Sir John Barrington treated his brother's family as his own, in the disposal of his property, and appointing 10,000., as the portion of each of his younger nieces. The letter of the 11th of July 1818, shews, that at the time of making the will of the 28th of March 1817, Sir John Barrington knew of the intended marriage of his niece Julia; and such will was made, as he says, on the occasion of such marriage. At that time, therefore, the will proves that he intended 10,000l., and no more, should be the portion of Mrs. Powys. Nothing can more completely shew the assumption of the office of parent towards them, so far as relates to the disposal of property, than this will. Had his nieces been his own children, the disposition and arrangements would probably have been the same as far as they affect them. If Sir John Barrington had died between the 28th of March and the 2nd of June 1817, Miss Julia Barrington's fortune would have been 10,000l.; but that 10,000, would have been so settled by the will, as to have precluded the necessity of any other settlement of that sum. But, although the object was so attained, and the chances of life guarded against by this will, the negotiations proceeded with the intended husband. To this negotiation, the uncle was a party on the behalf of the intended wife, the father not interfering. On the 2nd of June, the settlement is executed, the father being no party to it, but the uncle is and he put in settlement a sum of 10,000l., charged on the reversion of the Swainston estate, (which was, by the will, to go in succession to the nieces,) for the advancement in life, and to provide for the maintenance of the niece, who was about to marry. Did not Sir John Barrington, by this settlement, exercise the office and duty of advancing the niece in life, and of providing for her maintenance, and that by a sum charged on an estate settled on her eldest sister and herself, in succession? Was not this a portion? And if so, was not the 10,000l., appropriated to the same purpose, and ultimately charged upon the same property by the will, also

intended as a portion? But, if this was given as a portion, and is so to be considered, the giving it affords the strongest evidence, of the intention in the giver, to place himself for that purpose in loco parentis: and, on the other side, if the assumption be proved by other means, then the sum so given must be considered and treated as a portion. I consider both points as established by the evidence, and the proof of either is sufficient proof of the other, and so raises the presumption in equity that both gifts were not intended to take effect. Neither is this presumption rebutted by the evidence of the plaintiff; for independently of the presumption in equity against double portions, and of the positive testimony, that the testator, Sir John Barrington, intended his niece should have only one sum of 10,000l., there is the strongest grounds for presuming, from the documents, that such must have been his intention. That such was his intention in 1813, is quite clear; that he continued to entertain the same intention up to and at the time of making his will, of 1817, is also quite clear; and he not only does not give her any more, but disposes of all the property, appropriating 10,000l., and no more, to her. What ground is there for supposing that he had altered this intention on the 20th of April, after making his will? No stipulation for that purpose appears on the part of the intended husband: 10,000l. was the whole which he stipulated for, or which he had any reason to expect. Had Sir John Barrington, at the time he executed the settlement, an intention that his niece should have another 10,000l. under his will, would he not have made such additional sum the subject of negotiation, instead of leaving it as it stands in the will, which gives to the intended husband an unrestricted power over that sum? But, upon what ground is the direct evidence of SirJohn Barrington's intention with respect to these two sums to be contested? The whole question is one of intention, and, on such an issue, the declarations of the party are, I conceive, admissible; and so the case is put.

It has been said, that the trusts of the 10,000l. by the settlement, differ from those prescribed by the will; and that the will

charges the Hatfield Broad Oak tithes, and other property, with the payment; whereas, by the settlement, the reversion of the Swainston estate alone is charged. After the decision of the House of Lords in the case of Wharton v. Lord Durham(3), the variation in the trusts cannot be relied That case having been argued before I had the honour of a seat in the House of Lords, I abstained from taking any part in the judgment; and I was glad to be enabled to do so, because I had been counsel in the cause; but I fully concur in that judgment.

on.

As to the observation that the 10,000l. was by the settlement, only charged on the reversion of the Swainston estate, and might therefore have failed altogether, or have been postponed for a long period, it is to be observed, that although the charge on the reversion was by possibility in law liable to fail, by Sir John Barrington or his brother leaving issue male, who should attain twenty-one, and bar the reversion, yet the 10,000l. portion would not, in that event, have failed, it being in that case charged on the Post Office annuity (4); so that the charge, either by itself only, or by means of becoming a charge on the Post Office annuity, did, in fact, secure the 10,000l. But, what was the probability, in fact, of the charge on the reversion being defeated? I am not aware, that the age of the parties was distinctly in evidence; but Fitzwilliam Barrington had been married twenty-eight years, and had no son; and Sir John Barrington, who was the best judge of the probability of his marrying and having issue, evidently considered that event as one not at all to be taken into account: so that the reversion of the Swainston estate, though in law contingent, was, in fact, equal in value to an absolute interest, and must have so been considered by the party. The omission, therefore, of

(3) See 6 Law J. Rep. (N.s.) Chanc. 15. The decision in that case was reversed by the House of Lords, subsequently to the Vice Chancellor's judgment in Powys v. Mansfield.

(4) There appears to be some inaccuracy in this view of the case, as the Post Office annuity was brought into settlement, not by the Barrington family, but by the family of Mr. Powys.

the other property in the settlement, is necessarily a departure in effect from the intention declared by the will, of making the other property primarily liable for 50,000l.; for if such property was not thought equal to raise the whole 50,000l., it was not material that 10,000l., part of it, should be raised out of the reversion[His Lordship referred to some of the evidence, which it is not material to set out.]

It has been argued, that the codicil of the 23rd of June 1818, confirmed the will, and makes the will speak as of the date of the codicil, and, therefore, revives the legacy, if it had been adeemed by the settlement, and is, at all events, evidence of the intention that the legacy should take effect. It is very true, that a codicil republishing a will, makes a will speak as of its own date, for the purpose of passing after-purchased estates, but not for the purpose of reviving a legacy revoked, adeemed, or satisfied. The codicil can only act on the will, as it existed at the time, and at that time the legacy revoked, adeemed, or satisfied, formed no part of it. Any other rule would make a codicil merely republishing a will, operate as a new bequest, and so revoke any codicil by which a legacy given by a former will was revoked, and undo every act by which it might have been adeemed or satisfied.

The cases are consistent with this rule, such as Drinkwater v. Faulkner(5), Monck v. Monck (6), Booker v. Allen (7); and the case of Roome v. Roome (8) is not an authority against the decision, because the codicil was not considered in that case as reviving an adeemed legacy, it having been decided there was no ademption: but the codicil was referred to as an additional proof that no ademption was intended. As to the argument, that the codicil must, at any rate, be evidence of an intention that both sums should be paid, the same answer may be given as has been given to similar arguments in other cases-namely, that the testator, if he knew the rule of law, must have known that the codicil could

(5) 2 Ves. 625.

(6) 1 Ball & Beat. 298.

(7) 2 Russ. & M. 270; s. c. 9 Law J. Rep. Chanc. 130.

(8) 3 Atk. 181.

not revive an adeemed legacy, and, therefore, that it was unnecessary to mention it. The probability, however, is, that his attention being directed to the only object of the codicil, the words of confirmation of his will were introduced as words of course, without any reference to the legacy in question.

I have not said anything as to the identity of purpose in the two gifts-namely making a provision for the niece in contemplation of her marriage; but, there are strong observations of Lord Eldon on that subject, in the case of Trimmer v. Bayne (9). Indeed, the facts of that case, in almost every particular, strongly resemble the present. It was the case of a natural child, the father of which must be, for every pur pose, considered as a stranger. Verbal declarations were received in evidence of the father's intention; and the provision by the will, though not settling the property on the parties, and the issue of the marriage as in this case, had reference to the children's marriage: on which Lord Eldon observed, if there had been no general rule as to the ademption of the legacy by the settlement, it would be well worthy of discussion, whether it ought not to prevail in that particular case, the legacy being given with express and peculiar reference to the marriage of the daughter. Unless, therefore, it be admitted as a positive rule, that no one can, for these purposes place himself in loco parentis to a child who is living with his father, this case of Trimmer v. Bayne cannot be distinguished from the present. There is, then, the case which I before mentioned, of Monck v. Monck, which bears a strong resemblance to the present in many points. In that case, a testator had, by will, given 5,000l. to his brother, and, contemplating his marriage, directed in that event, it should be applied as a provision for his family. He afterwards advanced 1,000l. to his brother, and on his brother's marriage, settled 1,000l. on him and his family. Lord Manners held, that he had placed himself in loco parentis, and that the legacy was adeemed by the settlement, though, in that case, the evidence to shew the assumption of the office of parent, was

(9) 7 Ves. 568.

only to be found in the instruments themselves. In that case, it was also decided, that parol evidence was admissible in such cases to shew the intention; and a codicil, ratifying and confirming the will, did not set up an adeemed legacy. Lord Manners also ruled an identity of purpose as to the provision, though that was not so strong as in the present case. Booker v. Allen also embraces many of the points in question in this case; and, except that the legatee had no father, it was a case much less strong than the present against the double portions. Sir John Leach, then Master of the Rolls, held, that the testator had placed himself in loco parentis, and the presumption was, therefore, raised against the double portions; and, that evidence of the testator's intention was admissible; and that the codicil did not set up an adeemed legacy. Upon these authorities, and for these reasons, I am of opinion, that the evidence adduced to prove that Sir John Barrington had placed himself in loco parentis to his niece for the purpose of providing for her, is admissible for that purpose, and establishes that point, although the legatee was living with her father. The presumption The presumption against double portions, therefore, arises, and it is not repelled by the evidence adduced by the plaintiff. On the contrary, the result of the whole of the evidence is strongly to shew that Sir John Barrington intended his niece should only have one sum of 10,000l., and that the legacy given by the will, therefore, should not take effect. I am also of opinion, that the legacy so adeemed by the settlement, was not set up by the codicil. The result, therefore, is, that the plaintiff has failed, in my opinion, in so much of the suit as sought payment of the 10,000l. legacy; and so much of the decree as provided for the payment of that legacy, must be reversed without costs; and so much of the bill as prayed payment of the legacy, must be dismissed with costs.

Decree accordingly.

Railway Act-Construction.

By an act by which a railway company was incorporated, the usual power was given to them, to construct “according to the provisions and restrictions of the act," the said railway upon, across, or over any roads, &c., doing as little damage as might be. By a subsequent section it was enacted, "that where the railway should cross any turnpike road, or other public highway, by means of an arch," such arch should be "of such width as to leave a clear and open space under such arch of not less than fifteen feet" :—Held, that, under these clauses, the company were empowered to diminish the width of any turnpike road, which was crossed by the railway, provided they left an open space of fifteen feet; and an application by the trustees of a turnpike road for an injunction to restrain a railway company from constructing a bridge over the road of less than the usual width of that road, on the ground, that an inconvenience to the public would be thereby occasioned, was refused; but leave was given to the trustees to proceed against the company in a court of law.

This information was filed at the relation of the trustees of the upper district of the Kingston and Skeetbridge turnpike road.

By the 5 Will. 4. c. 88, a company was incorporated for making a railway from London to Southampton. By the 9th section of that act, it was enacted, "that it should be lawful for the company to enter upon lands, and take levels, &c.; and also for the purposes and according to the provisions and restrictions of the act, to construct or make in, upon, across, under or over the said railway or other works, and in, upon, across, under or over any lands, streets, hills, valleys, roads, rivers, &c., such inclined planes, tunnels, embankments, bridges, arches, piers, roads, ways, passages, conduits, drains, culverts, cuttings and fences, and also to erect and construct such houses, wharfs, &c., as the said company should think proper; and also to di

vert or alter the course of any rivers, &c., and also to divert or alter the course of any roads or ways, or to raise or sink any roads or ways, in order the more conveniently to carry the same over or under the said railway; the company doing as little damage as might be, in the execution of the powers thereby given them."

By the 72nd section, it was enacted, "that where the railway should cross any turnpike road, the road should be raised or sunk by the company, so that it should pass over the railway, or that the railway should pass over the roads by means of a bridge, of such height and width and with such an ascent or descent as was provided by the act."

By the 74th section, it was enacted, "that where any bridge should be erected by the company for the purpose of carrying the railway over or across any turnpike road or other public highway, the span of the arch of such bridge should be formed, and should at all times be and be continued of such width as to leave a clear and open space under every such arch of not less than fifteen feet, and of a height from the surface of such turnpike road to the centre of such arch of not less than sixteen feet." By the 77th section, it was enacted, "that in all cases, in which, in the exercise of any of the powers thereby granted, any part of the carriage or horse roads, either public or private, should be found necessary to be cut through, diverted, raised, sunk, taken, or so much injured as to be impassable for passengers or carriages, or the persons entitled to the use thereof, the company should, at their own expense, before any such road should be so cut through, diverted, raised, sunk, taken, or injured as aforesaid, cause a sufficient carriage or horse road (as the case might require,) to be set out and made instead thereof, as convenient for passengers and carriages as the road to be cut through, diverted, raised, sunk, taken, or injured as aforesaid, or as near thereto as might be, and should cause the same to be put into good and substantial order and condition, where the former road could not more easily be restored; and when the road cut through, diverted, raised, sunk, taken, or injured, should be a turnpike road, the

substituted road, if temporary, should be set out and made as aforesaid, and the principal road should be restored within six calendar months after the commencement of the operation; and the railway, where it should cross such turnpike road, should be constructed and kept in repair in such manner as to prevent, as far as practicable, any obstruction to the passage along such turnpike road."

The line of the railway was to pass over Ditton Marsh, where it crossed the turnpike road from Kingston to Skeetbridge. The road, at the part where the railway was to cross it, was forty feet wide; but the company proposed to carry the railway over it by means of a bridge of the width of twenty-four feet only, of which five feet were to form a footpath. And as the railway crossed the road in a very oblique direction, the width of the road would be diminished to the length of 160 feet. The company had commenced the construction of an arch of the width above mentioned. The trustees of the road, considering that the arch would not be of sufficient width for the purposes of the great traffic upon that road, caused the present information to be filed. It prayed that the arch intended to be erected by the company might be declared a nuisance, and that it ought to be abated; and that the company might be restrained from proceeding with the proposed arch, or from erecting any other arch upon or across the said road, so as to obstruct or narrow it, to the nuisance and injury of the public.

There were several clauses in the act, as the 18th and four following clauses, by which the company were required to construct arches of a greater width than fifteen feet at the particular places mentioned in those clauses respectively, as over the rivers Wey and Itchen, the Basingstoke Canal, &c.

A motion was now made for an injunction to restrain the company from proceeding with their proposed bridge over the Kingston road.

In support of the motion several affidavits had been sworn by surveyors and others, who deposed that, in their opinion, the proposed arch would occasion great inconvenience and obstruction to persons