school. It appears that Lord Lonsdale had a power, in fee simple, to grant all the lands which are mentioned, both in the will and in the deed, except the particular lands upon which the school-house had been built. That school-house in the parish of Lowther was built upon land comprised in the family settlement, of which the then Lord Lonsdale was tenant for life only, and, consequently, he had no power to make the grant, which by his deed he purported to make.

On the part of the Attorney General, it is insisted, first, that the trusts of the deed are to be established, or, if any difficulty should arise with respect to the establishment of the trusts of the deed, by reason that Lord Lonsdale had no power to dispose of the school-house, then, that the trusts of the will are to be established; and that, though the school under those trusts would not possess precisely the same property as the deed of 1697 proposed to grant, yet, substantially, the same school would be founded, with the same advantages, although less in point of pecuniary amount.

On the part of the defendant, it is insisted, in the first place, that this deed proposing to found the school had never in truth been delivered or acted upon; that it was in the nature of an escrow; and, therefore, that the Court would not now execute it at the distance of more than a century. It does not appear, that that objection is founded in fact; because, according to the evidence, the school actually was carried on during the life of John Viscount Lonsdale, as he proposed to found it, and it continued nearly forty years after his death. At the end of, or about that time, I think Sir James Lowther, or some ancestor of the family, came into possession, under the family settlement, of an estate tail, suffered a recovery, and discontinued the school—at which time the school ceased, and, then, since the emoluments of the manor and rectory, which were proposed to form the endowment of the school, have in fact been enjoyed by the Lowther family, and are now enjoyed by the present Lord Lonsdale, and applied to his own use as part of his own estate. The defendants failed, therefore, in that first objection, namely, that the deed was a mere escrow, and that the deed had not been established.

The next objection taken on the part of

the defendant was, that this was not a charity; that, being a school for the purpose of the education of the sons of gentlemen, it could not be considered as a charity, and, therefore, that the Court had no jurisdiction to establish it. Undoubtedly a school for the sons of gentlemen, in the popular meaning of charity, is not a charity: but the question to be considered is, whether it is a charity within the meaning of the statute of Elizabeth; and the statute of Elizabeth expressly states, that all schools for learning are to be considered as charities. It is perfectly immaterial, therefore, who the persons are who are to have the benefit of such establishments. That objection therefore fails also.

The next objection is founded on the circumstance that Lord Lonsdale was tenant for life only of the school-house, and that it appears by the recital of the deed, that his purpose was, not to erect a school generally, but to erect a particular school, to be carried on in the house which he himself had built in the parish of Lowther; that, unless that purpose could be executed, he had expressed no general purpose of erecting a school, and, consequently, that his charity must wholly fail. I am bound upon authority to say that that objection must prevail, and that this Court cannot carry into effect the trusts of the deed of 1697, it being truly stated that the clearly-expressed intention of Lord Lonsdale was, that there should be an establishment of this particular school.

The defendants then say, that, with respect to the will, the same objection, as to Lord Lonsdale's want of power to dispose of the school-house, is an answer to the establishment of any charitable trust, under the will, because the same particular purpose for the establishment of the school in that special house, is equally marked in the will, as in the deed; and, consequently, that, if the deed fails, the will must fail too. To this the Attorney General answers:Supposing this to be true, yet Lord Lonsdale devises by his will to those who claim under the family settlements very large benefits; and, upon the principle of election, they would be bound therefore to confirm the disposition which John Lord Lonsdale made of the school by his will. Now, I am of opinion, that the principle of election has never been extended to a case like this. I

know of no instance, in which it has been held, nor do I think it safe in principle to make a precedent, that the doctrine of election can be applied to any subject under a will, unless there be the form in language of a gift of that particular subject by the will.

Here there is not the form of a gift. It is plain, upon reading the will, that Lord Lonsdale had an intention to give; but he had not adopted the language of gift: he has merely expressed an imperfect intention; and I do not consider myself at liberty to carry into effect, upon the principle of election, an imperfect intention, not effectuated by any devise in his will.

Having thus disposed of the objections that were taken at the bar, another point occurred to me, which was subsequently considered, and which point appears to me to be of the greatest importance here. In the will, Lord Lonsdale, after directing the application of the rents and profits for the maintenance of this school, proceeds to close the demise of those lands in these terms: "Upon trust in such manner and under such laws, statutes, and constitutions, as to my said executors shall seem meet and expedient, or otherwise upon such other trusts and such other purposes as my said executors shall think most conducing to the good of the county of Westmoreland, and especially of the parish of Lowther aforesaid." Those words are in truth a direction to this effect— that, if by any reason the school fails, then the trustees, to whom the lands were given, are to apply the rents and profits of those lands otherwise upon such other trusts and for such other purposes as the executors shall think most conducive to the good of the county of Westmoreland, and especially of the parish of Lowther. Here, therefore, is an express clear intention on the part of Lord Lonsdale, that, if for any reason this school could not be founded, and the first trust intended were disappointed, still the lands proposed for the endowment of the school were to be applied by the trustees to such other purposes for the good of the county of Westmoreland, and especially of the parish of Lowther, as they should direct. That necessarily means such other purposes, as, under the statute of Elizabeth, would be considered charitable purposes.

Now, I am of opinion, that this is a ge

neral disposition to charity, and, the particular foundation of the school failing, that general disposition is to be executed by this Court; and I am bound to make a declaration accordingly.

I, therefore, declare that the intention of Lord Viscount Lonsdale, as to the school at Lowther, has failed, by reason that he had not power to dispose of the school-house; but that the manor and lands of Darnbrook, the rectory and parsonage of Hale, and the glebe lands and tithes thereunto belonging, and the part or share of the testator in the tithes or tenths of Briscoe, within the parish of St. John in the county of Cumberland, theretofore had and enjoyed together with the rectory of Hale, are well given by the will of John Lord Viscount Lonsdale to charitable uses.

Let it be referred to the Master to inquire, of what the particular property, so disposed of, now consists, and in whose occupation and possession the same now are, and under what circumstances, and what is now the rent thereof, and of every part thereof, and in whom the legal estate is now vested. Declare that the defendant, the Earl of Lonsdale, is to account for the annual rents and profits of the said several premises which have been received by him, or to his use, from the commencement of a term of six years before the filing of the information, and let the Master take such account accordingly: let the Master settle a scheme for the application of the rents and profits of the said several premises to some charitable purpose or purposes conducing to the good of the county of Westmoreland, and especially of the parish of Lowther, and for the future trust and management thereof; and let the Master tax the costs of the informant, the Attorney General, to the hearing; and let the same when taxed be paid by the defendant, the Earl of Lonsdale; and reserve the consideration of all further directions and the subsequent costs, and the extra costs of the informant, until after the Master has made his report.

It appearing by the pleadings that a part of the manor of Darnbrook had been sold, and had produced the sum of 40007.; the directions were altered by introducing a declaration, that Lord Lonsdale was to account

A testator had given the residue of his estate to relations within a certain degree; and by the decree, it had been referred to the Master to inquire who were the persons coming within that degree.

A. B. had gone in before the Master, claiming to be one of the class to whom the residue was given, and the Master had allowed his claim. Other claimants had carried in states of facts, and they were represented by a solicitor, who was also the solicitor both for the plaintiff's and for the defendants.

A motion was now made on behalf of A. B., that he might be allowed to attend the proceedings in the Master's office, and that the costs of his attendance as well as the costs of the application might be paid out of

the estate.

Mr. Russell appeared in support of the motion; and submitted, that the investigation of the claims carried in to the Master's office would not be conducted properly, unless there were an adverse party to watch them. How could the solicitor, who carried in a claim, be a fit person to resist and sift it?

Mr. K. Parker, contrà, argued for the executors, that there was no precedent of such an order as the one now sought; that no misconduct was imputed to the parties in the cause, and therefore, the interference of one who was not a party was unnecessary; and that, at all events, even

Bill for specific performance dismissed with costs, where the agreement had been procured by the plaintiff under circumstances of great suspicion.

The bill was filed by a purchaser against a vendor to enforce specific performance of a contract for the sale of a certain property for the sum of 1900l.

It was resisted, on the ground that the agreement had been improperly obtained.

It appeared by the evidence that there had been some negotiation for the purchase between the parties. The plaintiff caused an agreement to be prepared by a solicitor, in which a blank was left for the price, and which contained a stipulation that a part of the purchase money should remain in his hands as a security against a claim of dower, he in the mean time paying interest on this sum at the rate of 31. per cent. One evening, the plaintiff sent for the defendant to his house; there he remained upwards of two hours, drank the greater part of four pints of ale, and then signed the agreement. He was an ignorant person, and liable to be intoxicated by a small quantity of liquor.

It was further alleged by the answer, that the sum agreed to be paid was far below the real value of the land. On this point the evidence was contradictory; but the balance was rather on the side of the defendant.

Under these circumstances the Vice Chancellor dismissed the bill with costs.

The plaintiff claimed payment of a promissory note out of the separate estate of a married woman.

- In order to prove that she had property settled to her separate use, the plaintiff was proceeding to read the answer of the married woman.

It was objected, that, as the plaintiff stated her to be a married woman, prima facie her answer could not be read; and, even if it were admitted, that, where a married woman had property settled to her separate use, her answer could be read, yet anterior evidence must be adduced to prove the facts of her having separate property.

The Vice Chancellor was of opinion, that her answer might be read to shew that she had property settled to her separate use.

CHANC. VOL. V.

Where demised premises are burned down, and the lease does not provide for the case of accidental fire, the lessee has no equity to restrain the lessors from suing for the rent, or for the breach of covenants to repair, even though the lessor is bound to repair the outside of the premises.

Neither has he any equity to compel his lessor, who is so bound to repair, and who had insured the premises, to expend the money received from the insurance office in rebuilding any part of the premises.

The bill alleged, that by indenture dated the 25th of March 1820, between John Cheetham of the one part, and the plaintiff, Thomas Leeds, of the other part, for the considerations therein expressed, John Cheetham did demise and lease unto the plaintiff a cotton factory, together with the steam-boiler, steam-engine, steam-pipes, and gearing thereunto belonging, and also certain closes or parcels of land adjoining the cotton-factory, unto the plaintiff, his executors, administrators, and assigns, from the 25th of December then last, for the term of twenty-one years, at the yearly rent of 1037. 3s. 6d., payable quarterly as therein mentioned; that in the indenture of lease, among other covenants therein contained, was a covenant on the part of the plaintiff, his heirs, executors, administrators, and assigns, from time to time, and at all times during the continuance of the said term, to pay to John Cheetham, his heirs or assigns, the yearly rent of 103l. 3s. 6d. at the several times in the said indenture appointed for payment thereof, without any deduction or abatement, except land-tax; and also, that the plaintiff, his executors, administrators, and assigns, should and would, from time to time, and at all times during the continuance of the term, well and substantially repair, and keep repaired, at his and their own expense, all and singular the inside of the cotton-factory, and the outbuildings and offices thereto belonging, together with all fixtures, buildings, improvements, and additions, then, or at any time during the continuance of the said term, erected or to be erected, upon the premises or any part thereof, and also should

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and would, from time to time, during the continuance of the said term, well and substantially repair and keep repaired, at his own expense, the steam-boiler, steamengine, steam-pipes, and gearing, and all the apparatus thereto belonging, so long as the same would last, or could be rendered workable by repair: but when the same or any part thereof were quite worn out by long use, and were no longer workable, the defendant, John Cheetham, was to replace them with new ones at his own expense, during the last fourteen years of the said term; and the defendant, for himself, his heirs, executors, administrators, and assigns, thereby covenanted, that he would from time to time, and at all times during the continuance of the said term, at his own expense, maintain and keep the outside brickwork, plastering, slating, tiling, and all other outer parts of the premises in good, substantial and tenantable repair at his expense, and that, he would during the last fourteen years of the term, replace or cause to be replaced, the steam-boiler, steam-engine, steam-pipes, and gearing, and the apparatus thereunto respectively belonging, with good and substantial new ones of the same size and description, when, and as they should respectively become incapable of further use by long service, and could be no longer rendered workable by repair.

The bill further stated, that, shortly after the execution of the lease, the plaintiff entered into the possession of the factory and premises, and continued in the possession until the 22nd June 1825, when the factory, buildings, and premises, were destroyed by accidental fire that shortly after the lease had been granted, the defendant, John Cheetham, caused an insurance from loss or damage by fire to be effected in the Norwich Insurance, on the factory and buildings for 500l.; on the steam-engine for 1007.; on the engine-house for 601.; and on the gearing for 40.; the total amount of the sums so insured being 700l.: that shortly after the same had been burned down, the defendant, John Cheetham, received from the insurance office, the 7001. which was the amount of his insurance, which, together with the old materials upon the premises, was greatly more than sufficient to rebuild and reinstate the factory, buildings, steam-boiler, engine-pipes, gear

ing and premises, and to place the same in a better state and condition than the same were in before they were burned down and destroyed. The bill further alleged, that the plaintiff was desirous that the said factory, buildings, and premises, with the steam-engine, pipes, and gearing, should be rebuilt and restored, and that he was advised that he was entitled to have the 700l. so received, or part thereof applied towards rebuilding and restoring the same, and he was willing, in case the 7001. should be insufficient for the rebuilding and restoring of the said premises, to pay and make good the deficiency out of his own monies. The bill also charged, that, although by the terms and provisos of the said lease, the plaintiff was bound to repair the interior of the premises, and the steam engine-pipes and gearing, yet it was fully contemplated by the plaintiff and John Cheetham, that the steam-boiler, steamengine pipes, and gearing, in and upon the said premises, when the said lease was executed, would not last or be serviceable for more than the period of seven years; and therefore it was stipulated and covenanted on the part of the said John Cheetham, that he would replace and renew the said steam-boiler, steam-engine pipes, and gearing, in the last fourteen years of the said term; that if the plaintiff were now to put in a new steam-boiler, steam-engine pipes, and gearing in the factory and premises, John Cheetham would derive considerable advantage at the expense of the plaintiff. The bill further charged, that the factory and the steam-boiler, steam-engine pipes, and gearing therein, being not only no longer workable, but wholly destroyed, the plaintiff was in equity discharged from his covenant in the lease for the repairing of the said steam-boiler, steam-engine pipes, and gearing, and that he was not now, under the terms of the lease, liable or bound to make good or reinstate the said steam-boiler,steamengine pipes and gearing, and premises, but that the said John Cheetham was bound to restore and make good the said premises, and also the said steam-boiler, steam-engine pipes and gearing, with the said sum of 7001. received by him from the insurance office, and with the old materials; and that the defendant had commenced an action against the plaintiff in the Court of King's Bench for