Court of Appeal, in which the marriage was required to be with the consent of the young lady's guardian or guardians. The mother was appointed testamentary guardian, and died; and after her death, and while there was no guardian, the marriage took place, and it was held that the condition was not complied with. The former case (Dawson v. OliverMassey, L. R. 2 Chy. D. 753,) was limited to the case of parents; and, as guardians might have been appointed by the Court, the marriage without their consent was not a performance of the condition. In this last case there was no consent at all by any guardians, and it does not help to solve the question as to the effect of consent of survivors.

There is a general rule, however, that where the power to sell, or to consent, or do any act, is attached to the office of executor, trustee, guardian, &c., and not to particular persons, it may be exercised by any persons who fill the office. Thus, where a power of appointment was given to a deceased person, his executors, administrators or assigns, it was held to be well executed by the two acting executors appointed by the will of the deceased, where three executors had been named in his will, and one of them had declined to act-Wigram, V. C., saying: "The question in all such cases is, whether the confidence is reposed in the individuals named or in the persons who de facto fill the given office:" Earl Granville v. McNeille, 7 Hare 156.

In a later case (Lane v. Debenham, 11 Hare 188) the same learned Judge pointed out the distinction between trusts and powers, that where a naked power is given to two persons it will not survive to one of them, unless there be express words or a necessary implication shewing it to be the intention that it should survive. But, when a testator gives his property to trustees in trust to sell, it is a novel doctrine that, after the death of one of two trustees, the other cannot sell and execute the trust.

The present is a mixed case of power and trust. The land is devised to the wife for life, with a power of sale of the fee at any time during her life with consent of the executors.

So far as her life estate is concerned it would seem

to be a trust to sell with consent, and a power over the remainder. She has, with consent of all, sold to John, one of those entitled in default of appointment, the part that would have devolved upon him in case of such default, and he has received it in full of his claims under the will; so that there need be no difficulty in dividing the proceeds of the sale now in question, one-third to the widow and twothirds to Joseph.

The consent is not by this will required to be given by persons by name, but by his executors, and would seem to be attached to the office, so long at least as the plural number remains: Sugden Pow., 8th ed., p. 128; citing Vincent v. Lee, Co. Lit. 113a. A number of cases to the same effect are collected in Lewin on Trusts, 7th ed., p. 523 et seq.

But in Sykes v. Sheard, 2 DeG. J. & S. 6, where real estate was devised to trustees upon trust to sell, but no sale to be made without the consent of his sons and daughters, the testator left seven children, one of whom, a daughter, afterwards died, and her husband had become absolutely entitled to her share; the surving children and the husband of the deceased daughter consented to a sale; the Lord Justice thought the title much too doubtful, notwithstanding Vincent v. Lee, to be forced upon a purchaser.

A different conclusion has been arrived at in several American cases: Leeds v. Wakefield, 10 Gray 514; Sohier v. Williams, 1 Curtis, C. C. 479, and others.

In this state of the authorities I do not think the title such as can be forced on a purchaser.

The petition is therefore dismissed, with costs.

[CHANCERY DIVISION.]

SNARR V. THE GRANITE CURLING AND SKATING COMPANY,

Excavation for building—Right to lateral support—Damages by removal of -Future damages-Costs.

The defendant was entitled to the lateral support of the defendants' land, in which they made excavations for the purposes of a rink, whereby the plaintiff's land was damaged.

Held, that in substituting artificial support for the natural support of the soil which had been removed, the defendants might construct it of any material, provided it was a sufficient support for the purpose, and that they continued to maintain the plaintiff's land in its proper position. Held, also, that in estimating the plaintiff's damages, no sum should be allowed for damages to arise in future.

The damages were assessed at $40, but judgment was given for the restoration of the plaintiff's land. Held, that the plaintiff was entitled to full costs.

The cause was heard at the Toronto Sittings, on the 13th December, 1881.

The plaintiff was the owner of a dwelling house, a lot of land, and garden thereon, on the east side of Church street, in the city of Toronto.

The defendants, a Rink Company, were the owners of the lot adjoining that of the plaintiff, on the south side thereof.

It was apparently necessary for the defendants in making or forming their rink to excavate the land to the depth of several feet. This excavation was not so deep at and near Church street as it was at and towards the rear of the lots. The excavation was done along the dividing line between the lands of the plaintiff and those of the defendants. The plaintiff alleged that she was entitled to the lateral support of the defendants' land, so that her land. might not fall away or be injured; or that, upon the removal by the defendants of that support, she was entitled to have a support substituted for it which would preserve her land

from injury by reason of such removal. This alleged right of the plaintiff was not, on the argument, disputed by the defendants. The plaintiff further contended that the support substituted by the defendants was utterly insufficient, that it had failed to support her land properly, and that she had sustained injury by reason thereof. The additional facts sufficiently appear in the judgment.

There

W. Cassels and Brough, for the defendants. was no law requiring the defendants to construct a stone wall to the north of their premises. All the plaintiff was entitled to ask was reasonable support. The defendants had offered to pay $40 before suit, a sum in excess of the damage sustained, and the defendants also offered to mend the supporting wall in places where it had sagged. To do this required work to be done on plaintiff's property, and she had refused to allow this. There is no evidence of any loss from plaintiff's land being drained by the defendants, and this claim is without legal foundation. The defendants offered what was reasonable, and the plaintiff should be ordered to pay the costs.

Beaty, Q. C., and J. M. Hamilton, contra. The evidence clearly shews that there has been a trespass as to five and a half inches of land. A person is not allowed to excavate his land so near to that of his neighbour as to occasion the soil to fall in: Backus v. Smith, 5 App. R. 341; Rowbottom V. Wilson, 8 E. & B. 139. They also referred to the case of Humphreys v. Brogden, 12 Q. B. 743. As to the plaintiff's right to recover damages for future injuries, they cited Lamb v. Walker, L. R. 3 Q. B. D. 389.

February 13, 1882. FERGUSON, J.-The plaintiff complains because she says that water, necessary to the the fertility of her garden, has been drawn away by reason of the excavation by the defendants on their own land; but I think this complaint not established by the evidence with sufficient clearness for me to grant any relief in

regard to it, even if the law on the subject were in her favour. The plaintiff also claimed, and contends, that the defendants have trespassed upon and taken some four or five inches of her land; but I do not think that, in the face of the evidence of Mr. Henderson as to what took place at the time of the purchase of her land, I should be justified in finding against the defendants as for a trespass for this alleged cause.

The plaintiff, however, says that she is entitled to damages occasioned by the depression of her land in certain places along the boundary, in consequence of the insufficient substituted support, furnished by the defendants when they removed the natural support; for the loss of certain shrubs and fruit brushes growing thereon; and in respect of the displacement of the fence. She also contended that she was entitled to have the defendants ordered to construct a support to her land of the most permanent character, and brought before the Court the evidence of professional gentlemen to shew that such a support should be constructed. Her contention was, that this should be constructed of stone in a certain manner, and at very great cost to the defendants. In this last contention I do not think the plaintiff is correct, and no authority was referred to to shew the correctness of it. It was not denied that she was and is entitled to a support sufficient to maintain the surface of her land in position, and the defendants say that they are at liberty to construct such support of any material that to them may seem proper. In this contention I think the defendants are right. I think they may furnish the support of any material, provided it is a sufficient support for the time being, and answers the purpose of preserving the position of the plaintiff's land. The defendants admit that there was and is a defect in the substituted support furnished by them, saying, however, that the defect came about by an accident. It appeared at the hearing that before the litigation commenced an offer of $40 for the alleged damages had been made, and that so far as the amount