declared by a covenant. But how would a court of Equity execute it as a trust? Just as a court of Law would execute it as a covenant. If the court can

collect from the deed of trust, that the donor intended the covenant to be binding as a trust, this was the whole length it could go. In the case of Coventry which had been quoted, the deed was to be enforced by a covenant. The question was, whether that circumstance prevented the court from looking at the intent of the deed, or did it require the literal fulfilment of it? If it appeared from the intent of this deed, that the donor intended the whole for charitable uses, he would not be bold enough to deny, that a court of Equity might direct the whole to be applied according to the donor's intention. Although when the whole of a property is given to charitable uses, and the revenues increase, that increase must go to the charity; still it does not follow, that because part of a property is so given, all the remainder unprovided for, is to be applied in the same manner. He would now consider the intent of the deed. It is said by the gentlemen on the other side, that in the introductory part of the deed, there is no expression of an intention to benefit the city of Bris tol. The donor certainly meant a benefit to that city, by allowing it to enjoy the revenue of the property for ten years, while the other cities had it only for one year. The trust deed directed the corporation to purchase lands, of which the rents should amount to 1207. or more; and it appeared VOL. LX.

to him, that if they could make this purchase for less than 2,0007. they were entitled to appropriate the balance.

Vice Chancellor.---Certainly not, if they were trustees.

Mr. Bell said, that if he could have succeeded in showing that they were obliged to lay out the whole of the 2,000l., it would have fortified the claim of the corporation; but if he failed in that attempt, the failure would not affect the validity of his other arguments. The deed says, that 100%. are to go to the city of Bristol for ten years, and afterwards 1041. to 24 other cities, in annual succession. Now, Mr. Wetherell contends, that since the donor has given them 100%. for ten years, they have no title, in justice, to the residue. Could any thing be more absurd than for a person making a will to say, he left A. B. his property on condition that he should pay C. D. 50l. per annum, and yet not to intend that all the surplus should go to A. B. Is there a single iota in this deed which says, that if there was a surplus, the corporation should account for it? Is it not evident that the donor either did not contemplate the rise of rent; or if he did, that he intended the city of Bristol to be benefited by it? If a property of limited amount is left to a charity, all the benefit resulting from fluctuation of rents, &c. must go to that charity, and not to the heir at law. Of this nature were the cases adduced on the other side; and it was evident they were not applicable, since in this case all the property had not been left to the charity. If

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the rent of the land did not amount to 1201. Bristol was bound by the deed to make up the deficiency. Were they to be bound to pay this, and to derive no benefit from the surplus? It would not be in the power of arbitrators to relieve the city of Bristol from the deficiency on all occasions. It is agreed in the deed that the corporation shall make up the rent, unless in cases of accidents and repairs; and here they are subject to the decision of arbitrators, without the power of applying to a court of justice. One of the gentlemen on the other side had said, that the President of St. John's College and the Mayor of Bristol were appointed, in the capacity of visiters, to look after the management of the charity, at their own expense; and hence he infers that the city of Bristol had no claim to the surplus on account of the visitatorial labours of the Mayor, any more than St. John's College had for those of its President. Now it appeared more likely, that since St. John's Col. lege was benefitted by the will of the testator, the President was appointed a visiter on that account; on the same principle that the Mayor of Bristol was, on account of the benefit intended to the city of Bristol, appointed a visiter. He submitted to his Honour whether it did not follow, that where the city was to guarantee a certain amount, some benefit was not intended by the

testator.

Vice-Chancellor.-The information in this case sets forth that the corporation of Bristol were bound, by the deed of trust, to

lay out 2,000l. in the purchase of land of the annual rent of six score pounds or more; and it is contended, that if they could purchase more with this sum they were bound to do so by the intention of the donor. It is said, that since the purchase, the annual rents have risen from 129%, to many thousand pounds; that notwithstanding this great rise the trustees have applied only 104/ to the charity; that they have appropriated this great surplus to themselves; and that this appropriation is a breach of trust, as it does not appear to have been the intent of the donor that the corporation should be bene. fited by the surplus. On this information the corporation have demurred, on the ground that the question is too important to be decided in this early stage. As this is a question merely res pecting the intention of the donor, I do not see what benefit can result from delay, since no other evidence than the deed itself can be adduced. My opinion, therefore, is, that the present is the proper moment of deciding. The case is of great importance; it is new in circumstance, although not in principle. (His Honour then went over all the cases that had been referred to, and precedents, in the course of the arguments, and showed that none of them were applicable in every circumstance to the present question.) If this were a case between A and B, without regard to charity, the corporation would be considered as pur chasers of the land; and as such, although bound by their covenant to apply the sums provided for in

the

the deed, they would be entitled to appropriate the surplus. But this is not to be considered as a case of individual interest. They are trustees for the execution of the will of Sir Thomas White. I am to look at this, not as a covenant, but as a deed under trust; and the duties by which the trustees are bound are the same as in other cases of trust. There is a plain intent in this deed, that the surplus should remain in their hands for some purpose. Is it intended that they are to take the surplus beneficially, or are they to keep it, in order to answer some purpose mentioned or implied in the deed? It is obvious from the nature of the property, that there must be some charges occasion ally. The question I am to consider is this was it left in their hands to answer incidental expenses on the property, or for their own benefit? It is plain that the testator gives to the other 24 corporations the sum of 47. for expenses and repairs. Did he mean bounty to this corporation, or the means of defraying the expenses of executing the trust? The deed states, that the sums are to be applied to purposes stated, and to no other; yet the purposes mentioned do not amount to the whole rent. This is only to be reconciled by supposing that the parties took into consideration the expense of executing the trust. This construction seems confirmed by the clause of the trust relating to the appointment of arbitrators, who were to determine, when the surplus is not sufficient to cover the charges, from what other part of the estate they are to be

defrayed. Looking at the deed as a declaration of trust, my opinion of its true meaning is, not that the trustees should take bounty to themselves, but that the surplus was intended as a security for the expenses of management; and consequently, if the trustees have appropriated the surplus, they have been guilty of a breach of trust. I shall therefore overrule the demurrer.

SECONDARIES' OFFICE, COLEMANSTREET, Nov. 21.

Brown v. Allen.-The defendant, who is Lord Spencer's gamekeeper, was tried at the last Kingston assizes, under Lord Ellenborough's Act, for shooting at, and wounding the present plaintiff, on the high road between Wimbledon and London, upon which he was acquitted. The plaintiff subsequently brought an action for the injury he had sustained in consequence of the defendant wantonly shooting at him, upon which the defendant suffered judgment to go by default; and the inquisition upon the writ of inquiry was taken to assess the damages, before Wm. Collingridge, Esq. the Secondary of London, and a jury impanelled upon the occasion.

William Purday being sworn, stated as follows:-" I was with the plaintiff on the night of the 17th of February last, near Wimbledon; it was a moonlight night; a man named Wilkins was with us; I first saw the defendant, Allen, near the Green Man, Wimbledon, and a man was with him; they followed us about a mile and a quarter

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a quarter before they interrupted us: Allen first stepped up to us, and put his gun across our breasts, and told us to stop: I begged his pardon, and attempted to go on: Allen then said, I have a suspicion that you are going a poaching; I told him if he had such a suspicion of me, that I would willingly be searched: Allen then raised his gun and let us pass; he lifted his gun barrel over our heads; Allen then turned round and said to the plaintiff, Brown, you are the poaching rascal I want: you have been pounds out of my way, and I will blow a hole through you.' Brown replied that he would be searched there, or go down to Wandsworth and be searched. Brown put a basket down on the ground, and told Allen that he would be stripped naked if he had any suspicions of him. Allen kept manoeuvring about Brown, and said he would shoot him, and not search him. I walked on a little way; Allen pushed hard with the muzzle of his gun against Brown's breast, and pinned him against the pailings. It was a It was a double-barrel gun. Brown called me back; I said, Brown come along. Allen replied, that he should not. I said to Brown, if he (Allen) is tolerated to shoot, let him shoot. Allen then came down into the road, and ran his gun five times against me, and swore that, if I moved a foot, he would blow a hole through me. While he was thus attacking me, he cocked both the locks of his gun. Brown stepped over a stile into a common foot-path, which leads to Putney. As Brown got over the gate, Allen attempted to

stop him, but did not succeed. Allen then levelled his gun at Brown; I did not think he meant to shoot him. Allen, however, swore and pulled the trigger of his gun, and as the contents of one of the gun barrels lodged in the body of Brown, he fell to the ground, and called to me, seemingly in great pain, Purday, I am shot. I then attempted to get over the gate, but Allen would not let me he said, "If you move another step, I'll blow a hole through you with the other barrel. You recollect my gun shoots twice, and I'll shoot you.""

Joseph Wilkins being sworn, stated as follows:-" I am a jobbing gardener. I had been be tween Cheam and Sutton for a job of trenching, on the 17th of February, and found there were as many hands as could be employed. I met Purday and Brown between nine and ten on Putney-hill. We walked together, and met Allen near the Green Man, Wimbledon. They bid each other good night. Allen followed them nearly a mile. It was not ten o'clock, but it was very near it. Allen came across the road, and said, I think you have got something.""

Common-Sergeant.-There is no necessity for this witness to go into all the details of the first evidence. I admit that the defendant shot the plaintiff. I will ask him if Purday told the truth in the whole of his relation?

snare game. I took a walk with them. I did not walk with the plaintiff on the next day at all. I believe he kept his bed at that time, and a long time after. Common-Sergeant.-Had Purday any stick?

Witness.-I think he had a little switch stick. No violence was offered to Allen. On the contrary, he alone acted with violence: I believe he was in liquor at the time.

Dr. Simmons deposed as follows:-I examined the plaintiff a short time after he was shot and found he was dreadfully wounded. A great number of shots were in his knee, leg, and thigh. I hoped it would not prove fatal; but I had great apprehensions at the time that it might. I never saw the plaintiff after that night, till I saw him on the trial at Kingston; he then limped, which was no doubt the consequence of the injury he received by being shot; I believe the limping was not affected; it was the probable effect of the injury in his thigh; I think for a labouring man such an injury would prove highly prejudicial to him in his employment, and of more serious consequence than to a person whose occupation was of a different and lighter description.

Mr. Joseph Hillier, the fatherin-law of the plaintiff, proved that the plaintiff had suffered eight or nine weeks' serious indisposition from the injury he received when he was shot, and he was not able to do any work for twelve weeks. The Secondary summed up the evidence very minutely; he inveighed against the atrocious conduct of the defendant, and

recommended the jury to give such fair and moderate damages as they should be of opinion, after a dispassionate review of the facts which had been detailed in evidence, the justice of the case required.

The jury retired for a short time, and gave a verdict-Damages 50l. and costs.

ADMIRALTY-COURT, DEC. 1. In the case of the ship La Jeanne.

This was a claim for salvage of ship and cargo, the particulars of which were briefly stated by Dr. Adams, on behalf of the salvors. The vessel belonged to Dunkirk, and was brought into Falmouth by the Hind revenue-cutter, having been found at sea, floating, with her keel upwards, and two or three casks of brandy, part of her cargo, washed out of her. By dint of great and severe exertion, the cutter's crew, assisted by 90 other men, amounting in all to 131 hands, succeeded in righting her, and brought her into Falmouth on the 13th of last February. The value of the cargo, which consisted of wine and brandy, was 3,000l., and the expenses already incurred amounted to 428/., which sum was, of course, to be deducted from the nett amount to be allotted for salvage. One cask or barrel of brandy was afterwards found in a barn near the coast, and another was also discovered on shore.

Dr. Arnold, for the owners, admitted that this was a case of "derelict," but one that did not come before the Court under very special circumstances; and in this view of the case, he thought an allowance of one-third would

be