CR. CAS. RES.]

money so paid have been applied to the repair of the road in each township. If the sums so paid to the township of Darfield were not sufficient, the township rates of Darfield made up the difference as far as the 500yds. in Ardsley were concerned.

The same thing occurred in Ardsley as to the remaining part of the turnpike road situate in the township of Ardsley.

Since the expiration of the Turnpike Act, Darfield has not repaired any part of the old turnpike road in Ardsley.

With the above exceptions each of the seven townships repaired its own highways.

The road indicted is part of an ancient and immemorial highway.

Upon these facts the Chairman directed the jury to find the defendants guilty, and they were convicted, and I respited the judgment and reserved for the consideration of this Court the question whether he was right in so directing the jury as above mentioned.

If the Court shall be of opinion that he was right in so directing the jury, then the said conviction is to be affirmed, and the costs of the prosecution are to be paid out of the highway rates of the township of Ardsley in accordance with my direction. If the court shall be of opinion that he was wrong in so directing the jury, then the said conviction is to be quashed.

Forbes for the defendants.-It is submitted that the conviction cannot be sustained. Of common right the liability to maintain a highway is upon the parish, and no division of a parish, such as a township, vill, or hamlet, is liable; but by immemorial usage or custom a division of a parish may be liable to repair its own highways. It is found as a fact in the present case that there is an immemorial custom for each township in this parish to repair all highways (with two exceptions) within the limits of the township. One of the exceptions is the part of the road in question, which has never been repaired by the defendants; but down to the year 1868, and so far as can be traced, that part has always been repaired by the adjoining township of Wombwell, but there is no evidence when or for what consideration Wombwell did the repairs. It is not contended that Wombwell is now legally liable to repair. As therefore no liability can be proved against any other body to repair the road in question, the legal liability falls of common right on the parish at large. The first count of the indictment charges that the defendants from the time whereof the memory of man is not to the contrary have been used and accustomed to repair the part of the highway in question, and still of right ought to repair it. The second count alleges that within the parish there are divers townships, the defendants' being one, and that the defendants from the time whereof the memory of man is not to the contrary, have repaired and still of right ought to repair, such of the highways within this township as would otherwise be repairable by the parish, and that by reason thereof the defendants ought to have repaired the highway in question; and the third count avers that within the parish there always has been, and still is, a certain ancient and laudable and immemorial custom for each of the townships within the parish to repair all the highways within their respective townships, that would otherwise have been repairable by the parish at large. All these averments in the indictments have been disproved, as to the

[CR. CAS. RES.

part of the highway in question being repairable by the defendants. It is not only necessary in the indictment to allege that the inhabitants indicted ought to repair, but also that they have from time immemorial repaired: (Rex v. Inhabitants of Great Broughton, 5 Burr. 2700.) Ashurst, J. there said: "If you lay a charge upon persons against common right, you must show how they are bound. It is not enough to show that they immemorially ought to repair it should be shown that they have repaired. He mentioned the case of Weston-underPenyara (4 Burr. 2507), where it was holden that the repair of highways lies of common right upon the whole parish; but, as that parish lay within two distinct counties, an indictment might be brought against that part of it in which the ruinous road lay. There the indictment was not against a particular precinct or division of the parish (as the present one is), but against the whole of the parish that lay within the county of Gloucester, in which that indictment was brought." The duty to repair must be measured by the custom, and the case states only, "That there is an immemorial custom for each township to repair all highways (with the two exceptions mentioned) within the limits of the respective townships." Now the part of the road in question is one of these exceptions. [CLEASBY, B.-Is not Rex v. Hatfield, 4 B. & Ald. 75 an authority against you? I submit the finding as to the two exceptions distinguishes this case. In 1 Russ. on Crimes 485 (5th ed.), it is said: "The liability of a township to repair by prescription may be such as to place the township on the same footing as a parish in respect to the roads within its limits. The liability may be to repair all highways within the township, which but for the prescription and usage would have been repairable by the parish at large; and in such case the township must not only repair immemorial roads, but also any new highways which may have been made within its limits, and which the parish might have been called upon to repair in the absence of any such prescription." In this case the repairs have always been done by the township of Wombwell. defendants can only be liable by reason of having repaired all the highways within the township from time immemorial. [HAWKINS, J.-Is not Rex v. The Inhabitants of Barnoldswick (4 Q. B. 499) almost in point against you?] In that case the inferences from the evidence were drawn by the jury, who found that the defendants' township was liable to repair all the highways within it; but here the jury found nothing, and the chairman, upon the facts stated, directed the jury to convict the defendants.

The

H. Matthews, Q.C. (Bosanquet with him) was not called upon to argue.

COCKBURN, C.J.-I think that upon the facts found in the case it is clear that the parish at large has never from time immemorial maintained its own highways. It has no machinery, no officers, and no rates have ever been levied for that purpose upon the parish at large. The parish consists of seven townships, and the liability of the parish to repair the highways within it has always been fulfilled by each townhip maintaining the highways within its own ambit. It is in vain to contend at the present day that a township, being a division of a parish, may not be liable, by virtue of an immemorial custom, to maintain the highways within it in

CT. OF APP.]

repair. Independently of the question of liability as between the townships of Ardsley and Wombwell to maintain and repair the highway in question, it seems to me that the township of Ardsley is liable to repair and maintain all its own highways. That is the inference I draw from the facts stated. Then if so, what is there to get rid of its liability to maintain the highway in question? It is said that the township is not liable as regards this highway, because the adjacent township of Wombwell has always, as far as can be traced, repaired it. But is any consideration for that obligation, or any means of enforcing it shown? None; and it is not contended, there being no consideration shown, that the township of Wombwell is legally bound to repair it. But unless the liability of the township of Wombwell to maintain the highway in question can be established, it is no answer to the prosecutors of this indictment to say, that somebody else than the defendants have always repaired it. There, again, I think the proper inference from the facts stated in the case is that by some arrangement between the townships of Ardsley and Wombwell, the township of Wombwell fulfilled the duty of maintaining this highway, which was incumbent on the township of Ardsley. It is a matter between the townships of Ardsley and Wombwell themselves as to whether such an obligation exists on the part of Wombwell to repair, but it is not a question between the township of Ardsley and the parish at large. Upon the whole, I am of opinion that the facts show that the township of Wombwell is not liable in point of law to repair the highway in question, and that the defendants are liable to maintain all the highways of which the highway in question is one within its own township. The rest of the Court concurred.

Conviction affirmed.

Supreme Court of Judicature.

COURT OF APPEAL.

SITTINGS AT WESTMINSTER.

Wednesday, Jan. 23, 1878. (Before BRAMWELL, BRETT, and COTTON, L.JJ.) THE ATTORNEY-GENERAL V. LAMPLOUGH.(a) Revenue-Duty on medicines-Mineral watersRepeal of part of statute-52 Geo. 3, c. 150— 3 & 4 Will. 4, c. 97, s. 20.

By 52 Geo. 3, c. 150, any person vending any of the preparations set out in the schedule of the Act, without stamped wrappers as prescribed by the Act, were made liable to a penalty. The schedule contained a list of preparations with a general clause at the end, one item in the list being as follows: "Waters, videlicet, all artificial mineral waters, and all waters impregnated with soda or mineral alkali, or with carbonic acid gas, and all compositions, in a liquid or solid state, to be used for the purpose of compounding or making any of the said waters." The general words at the end of the schedule were: "And also all other powders, waters, to be used or applied externally or internally as medicines, for the prevention, cure, &c., of any disorder, or which shall be re(a) Reported by W. APPLETON, Esq., Barrister-at-Law.

[CT. OF APP.

as

commended to the public by the makers beneficial for the prevention, cure, or relief of any disorder."

By 3 & 4 Will. 4, c. 97, s. 20, so much of the schedule of 52 Geo. 3, c. 150, as was contained under the head" waters," was repealed. Lamplough's Pyretic Saline was composed of carbonate of soda, tartaric acid, and a small quantity of chlorate of potash. It was sold by the defendant in the form of a powder without a stamp, and, when mixed with water, was drunk as a mineral water as a beverage, though it was also recommended and advertised by him as a valuable medicine, the medicinal property being afforded solely by the chlorate of potash. Upon an information for a penalty against the defendant, under 52 Geo. 3, c. 150, it was

INFORMATION for a penalty under 52 Geo. 3, c. 150, for the sale by the defendant of a preparation entitled "Lamplough's Pyretic Saline" without a stamp or payment of duty, as required by the Act. At the trial before Cleasby, B. and a special jury, the following facts were proved or admitted:Pyretic Saline was composed of the following ingredients: Tartaric acid, 457; bicarbonate of soda, 524; and chlorate of potash, 19. It was sold as a powder, and with water drunk as a beverage. But it was also recommended on the wrappers, and by an advertisement, as being beneficial as a medicine and curative for fevers and other disorders, and it was admitted that it was, in fact, a very valuable medicine. The chlorate of potash was admittedly not a mineral alkali, and had no part in the effervescing properties of the mixture, which was afforded by the other two ingredients forming together carbonic acid gas, but the medicinal quality of the saline was given by the chlorate of potash, which is used as a medicine for fevers. Upon these facts the verdict was entered for the Crown, with leave to the defendant to move to enter it for him, on the ground that on the above facts he was not liable to a penalty under 52 Geo. 3, c. 150, when read in conjunction with 3 & 4 Will. 4, c. 97, s. 20. (a)

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(a) By the 52 Geo. 3, c. 150, s. 2, any person, whether licensed or not, vending medicine set forth in the schedule annexed to the Act, without paper covers provided by the Commissioners of Stamps were made liable to a penalty of 101. The schedule mentions (inter alia) the following: Waters, videlicet, all artificial mineral waters, and all waters impregnated with soda or mineral alkali, or with carbonic acid gas, and all compositions in a liquid or solid state to be used for the purpose of compounding or making any of the said waters." And there were general words at the end of the schedule as follows: "And also all other pills, powders, lozenges, tinctures, potions, cordials, electuaries, plaisters, unguents, salves, ointments, drops, lotions, oils, spirits, medicated herbs, and waters, chemical and officinal preparations whatsoever, to be used or applied externally or internally as medicines or medicaments for the prevention, cure, or relief of any disorder or complaint incident to or in anywise affecting the human body, made, prepared, uttered, vended, or exposed for sale, by any person or persons whatsoever,

CT. OF APP.]

By 3 & 4 Will. 4, c. 97, s. 20, it is enacted that

From and after the 10th Oct., in the year one thousand eight hundred and thirty-three, so much of the said schedule as is contained in the following words (that is to say): "Waters, videlicet, all artificial mineral waters, and all waters impregnated with soda or mineral alkali, or with carbonic acid gas. and all compositions in a liquid or solid state to be used for the purpose of compounding or making any of the said waters," shall be and the same is hereby repealed.

A rule nisi was moved for and granted, and came on for argument in the Exchequer Division, before Kelly, C.B., and Cleasby and Huddlestone, BB. The Exchequer Division discharged the rule, giving judgment for the Crown.

The defendant appealed.

The case in the court below will be found fully reported 37 L. T. Rep. N. S. 247.

Herschell, Q.C. and Ince, Q.C. (with them E. B. Cooper) for the defendant

Dicey (with him the Solicitor-General) for the Crown.

The arguments were the same as in the court below.

BRAMWELL, L.J.-I am of opinion that this judgment must be reversed. I do not agree with the majority of the court below. The first question for us is, whether in the reign of George III., directly after the passing of the Act, this article would have been within the description of articles contained in the schedule. Now, this is a preparation in a solid state to make a certain water. Is what is made from it a water of such a description as is contained in the schedule, or is it that and something else besides? Witnesses have been called on behalf of the Crown who say that the result of the composition is properly called a water "impregnated with carbonic acid gas." Now this description may have been wrong, and it might, perhaps, more properly have been described as a medicine, but the witnesses did not say so, but the contrary. It is said that, because there is another ingredient in the composition, it is not correctly called "a water impregnated with carbonic acid gas;" but surely that is wrong -at all events, I cannot agree with it. The next question is, does the Act which repeals this part of the schedule under the head "waters" cause this composition to come within the enumeration in the tail of the schedule? Now, it is possible that this composition would have come under the tail of the schedule if it had not been specifically mentioned in the schedule itself; but the question is to be considered with reference to the particular enactments with respect to mineral wherein the person making, preparing, uttering, vending, or exposing for sale the same hath or claims to have any occult secret or art for the making or preparing of the same, or hath or claims to have any exclusive right or title to the making or preparing the same, or which have at any time heretofore been, now are, or shall hereafter be prepared, uttered, vended, or exposed to sale under the authority of any letters patent under the Great Seal, or which have at any time heretofore been, now are, or shall hereafter be by any public notice or advertisement, or by any written or printed paper or handbills, or by any label or words written or printed, affixed to, or delivered with any packet, box, bottle, phial, or other inclosure containing the same, held out, or recommended to the public by the makers, vendors, or proprietors thereof, as nostrums or proprietary medicines, or as specifics, or as beneficial to the prevention, cure, or relief of any distemper, malady, ailment, disorder, or complaint incident to or in any wise affecting the human body."

66

[CT. OF APP.

waters. There is a general injunction against selling them without a stamp, and before the repealing Act was passed this article was taxable under the schedule, and not under the general words at the tail of the schedule. It would have been taxable as an artificial mineral water, whether claimed under a patent or by a person claiming an occult secret in the manufacture, or advertised and praised as a medicine. Then comes the repealing Act, which says that so much of the schedule as are contained in the following words: 'Waters, viz., all artificial mineral waters, and all waters impregnated with soda or mineral alkali, or with carbonic acid gas, and all compositions in a liquid or solid state to be used for the purpose of compounding or making any of the said waters," shall be repealed. The repealing Act says in effect, though not in words, that artificial mineral waters are not to be taxed. The schedule has made certain things taxable; it is then repealed. The argument for the Crown is, that the taxation of the mineral waters is not repealed if you continue to sell them as patent medicines, or advertise them in the manner pointed out in the tail of the schedule. The effect of the repealing Act in my view is this: In the first place, the schedule taxes all artificial mineral waters, whether patented or not. The tail of the schedule says they must still be taxed if they are patented or advertised, &c.; but the repealing Act says, you must not tax artificial mineral waters at all. It is said that you cannot look at the repealed portion of an Act in order to make out the meaning of the remainder. If that is true, it follows that a clause in an Act, which at the time it is passed has one meaning, may obtain another meaning if some other part of the Act is repealed. That, in my opinion, would be an absurd result. It is right to say that when a portion of an Act is repealed it is as though it never had existed with respect to the particular matters dealt with by that portion. So much for the words of the statutes, and now for the substance of the matter. I think the intent of the Legislature was to exempt these waters from taxation, and not to make them taxable if the vendor said they were good for diseases. If that were not so, the Legislature might have said "the part of the schedule which refers to artificial mineral waters shall be repealed, provided nothing shall be repealed which in any way comes under the provision of the tail of the schedule." But it has not done so, and I think it meant to exempt such articles from taxation.

BRETT, L.J.-In this case there are two main questions. The first, under what part of the 52 Geo. 3, c. 150, does this composition come? and the second, what is the effect of the repealing statute? The one is a question of fact, the other of the construction of the first statute. This must be construed as if on the day after it was passed. It is for taxing certain medicinal compositions, and it uses this term, "all artificial mineral waters." That is intended, I think, to include what would be generally known and understood both by scientific and commercial people as "artificial mineral waters," and also to include what perhaps would not be so known, namely, "waters impregnated with carbonic acid gas." I do not think it makes a difference if an extraneous substance is used in the composition of the waters, whether it is a mineral or not. Now

for the remaining part of the schedule. A schedule is part of a statute, and as much an enactment as any other part. Then under which

part does this composition come? If it were such as people could not call it a water impregnated with carbonic acid gas, I should have thought that it was put in that specifying part of the statute. Was it a composition

which when used with water would be a medicine, or something other than a medicine, within the words at the tail of the schedule? I think that the admitted facts are that, when compounded and mixed with water, it produced a carbonic acid gas water, with a foreign substance contained therein, and this is what the scientific witnesses said at the time. I am of opinion that it still remains a water impregnated with carbonic acid gas, such as to fall under the schedule, and that it would have been taxable under the schedule. The next question is, what is the effect of the repeal of part of the statute? The whole matter, no doubt, is to be construed as if the repealed part had never existed. The first thing you look at in a repealing statute, is that part of the original statute with which the repealing statute deals, where in the statute there are several enactments some of which are repealed. Here are two distinct enactments, one of specified waters, and the other of other substances. The two enactments are distinct, the one is repealed, and the other has nothing to do with it.

COTTON, L.J.—I am of the same opinion. The Crown here claims duty as upon a water advertised on paper as good for certain diseases, and the question here is, What is the effect of the repealing Act? And, first, as to the construction of 52 Geo. 3, the defendant says, "I was taxable under that Act, but it has been repealed." The Crown says, "No; you would not have been taxable under that, but under the tail of the schedule; or, at any rate, after the repeal of that part of the schedule you would have been liable under the tail of the schedule." As a matter of construction, is the preparation within the first part of the statute? If it is, it cannot be in the tail of the schedule. The Act was aimed at compositions which were sold as medicines. The witnesses for the Crown call it a mineral water that has medicinal properties. The question is, Can it be said that this production is a carbonic acid gas water? If it is something else in substance, then it is not within the schedule. I think it is not within the tail of the schedule, and that the Legislature did not intend to make such articles as this subjects of taxation. I am of opinion that the defendant is not liable.

Judgment reversed. Solicitor for plaintiff, the Solicitor of Inlan? Revenue.

Solicitors for defendant, Crouch and Spencer.

[CHAN. DIV.

A testator gave his wife a legacy of 1000l., and bequeathed out of his pure personalty a sum of 9000l. to trustees for his wife for life, and ultimately between certain charities; he then gave to the same trustees all other his real and personal estate for conversion, directing them to hold it, after paying the 9000l., and after payment, out of such residuary estate as should not be wanted for the said legacy, of his debts, funeral and testamentary expenses, upon trust to pay the income to his wife for life, and after her death to raise out of his said residuary estate certain legacies for the benefit of the plaintiffs, and then legacies in favour of charities to the amount of 40,000l.. directing these latter legacies to be paid out of his pure personalty; then, as to the "ultimate residue" of his said residuary estate, he directed his trustees to hold one-tenth for A., another tenth for B., and the remaining eight-tenths for a charity, and declared that the said "ultimate residue" should be marshalled so that the eighttenths might be paid out of that part of his estate which might lawfully be appropriated to charitable purposes. There was only a sum of 20001. impure personalty. The testator's estate was not sufficient to pay all the legacies in full. On the death of the widow the question arose whether this 20001. was chargeable in exoneration of the pure personalty with the whole, or only rateably with the pure personalty with its proportion of the debts, costs of administration, and legacies (other than the 9000Z.)

Held, that there was nothing in the words of the will to controvert the general rule of the court, and that the debts, costs, and legacies were pay. able out of the pure personalty (less the 90001.) and impure personalty rateably.

PETITION.-Alexander Boetefeur, by his will dated the 26th May 1868, after bequeathing to his wife, the defendant, Matilda Maria Allemora Constant Boetefeur, the sum of 1000l., to be paid to her immediately after his decease, bequeathed "out of such part of my personal estate as may be lawfully applied to charitable purposes and preferably to any payment thereout the sum of 9000l. to his wife, and the plaintiffs and petitioners, Richard Lewis and Charles Reeve, their executors, administrators, and assigns, upon trust for investment as therein mentioned, and to pay the income thereof to his said wife for her life, and after her death upon trust to divide the said sum of 90001., or the securities for the time being representing the same, among certain charities which he particularly mentioned. The testator then devised and bequeathed unto the same trustees, their heirs, executors, administrators, and assigns, all his real and personal estate which was not thereby otherwise disposed of, upon trust to sell, get in, and convert the same as (a) Reported by W. C. DAVIES, Esq., Barrister-at-Law.

CT. OF APP.]

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therein mentioned; and he directed that his trustees should hold "all my residuary estate, after satisfying in the first place out of such part of my personal estate as may lawfully be applied for charitable purposes the said legacy of 90001., and after paying out of such part of the said residuary estate as shall not be wanted for the said legacy my debts, funeral and testamentary expenses (all which debts and expenses I charge thereon), upon trust to pay" the income to his wife for life, and after her death, "to raise out of my said residuary estate and pay the legacies following," i. e., two legacies of 2001. and 50l., and a legacy of 2501. to each of the plaintiffs, and then numerous charitable legacies amounting to 40,000l., and directed that the said last-mentioned legacies for charitable purposes shall be paid exclusively out of such part of my residuary personal estate as may lawfully be appropriated for such purposes, and preferably to any other payment thereout (except the said legacy of 9000l. directed to be paid in the first place and the legacies to the said Richard Lewis and Charles Reeve)," and as to "the ultimate residue of my said residuary estate," he directed his trustees to stand possessed as to one-tenth thereof in trust for one of the plaintiffs, and as to another one-tenth in trust for the other plaintiff, and as to the remaining eighttenths thereof for the Royal National Lifeboat Institution, and the testator declared "that in the division of the said ultimate residue, the same shall, if and so far as necessary, be marshalled so that the two equal tenths shall be paid out of such parts thereof as cannot lawfully be appropriated for charitable purposes, to the intent that the remaining eight equal parts may consist of such personal estate as may be lawfully appropriated for such purpose."

The testator died on Dec. 30th 1869, having no real estate, though shortly before his death he had contracted for the sale to the Metropolitan Railway of a leasehold house for 2000l. It was admitted in argument that this sum of 2000l. was impure personalty, and that eight-tenths of the residue of this sum, after payment of what was payable thereout, was undisposed of. There was an administration suit respecting the testator's estate, and Mrs. Boetefeur, the tenant for life, having now died, the object of the present petition was to obtain a division of the funds in court among the unpaid legatees, and the question arose whether, on the construction of the will, this 2000l. impure personalty was chargeable in exoneration of the pure personalty with the whole, or only rateably with the pure personalty with its proportion of the debts, costs of administration, and legacies to the plaintiffs, the petitioners.

Sir Henry Jackson, Q.C. and Macnaghten for the petitioners.-This petition, which practically takes the place of a further consideration-that having been accidentally not reserved -is for the purpose of having it decided whether the 20007. is to be drawn upon rateably with the other funds, or is wholly liable for payment of debts, costs, &c., in exoneration of the other legacies to charities. It is clear, on the authority of Harrison v. Harrison (1 Russ. & M. 71), that this 2000l. is impure personalty, and the case will be argued on that assumption. The testator has, by the words of the will, created a demonstrative fund out of which the charitable legacies are to be paid; but there are no words in the will sufficient to con

[CT. OF APP.

trovert the ordinary rules of this court applicable to the distribution of assets. The debts, costs, and legacies to the petitioners are therefore pay. able rateably out of the pure and impure personalty, and the minutes as framed are perfectly right.

Daniel Jones for the representatives of the widow.-By the terms of the will the 1000l. legacy to Mrs. Boetefeur must be paid first in full, for the legacies out of "residuary estate cannot have priority over a legacy given first. It is "residue" after payment of the 10001. legacy, and the directions as to preference apply only to legacies out of residue. Next, as to the payment of the debts and costs, it will be contended on behalf of the charities that Miles v. Harrison (30 L. T. Rep. N. S. 190; L. Rep. 9 Ch. 316) governs this case; but I submit that it does not. That case went entirely on the particular words of the will, which are not the same as here. The costs, debts, &c., are therefore payable rateably out of the pure personalty and the 2000l. impure personalty. Then, as to any portion of the impure personalty which is not disposed of by this means, there will be an intestacy, to one-half of which the widow would be entitled, as there are no children. I ask that this one-half, when ascertained, may be paid out to us at once, and the other half carried over. By this means we shall save the expense of a second application.

Rigby, for the Attorney-General, representing the charities.-Though the court will not marshal assets in favour of charities as a general rule, yet it will do so if the directions in the will are sufficiently explicit :

Miles v. Harrison (sup.);

Wills v. Bourne, L. Rep. 16 Eq. 487;

and ours is a stronger case even than these. The testator directs the charities to be preferred to all other claims, and therefore the costs of suit, the debts and legacies, must all come primarily out of the impure personalty:

Sturge v. Dimsdale, 1 L. T. Rep. 252; 6 Beav. 462; Tempest v. Tempest, 29 L. T. Rep. 101; 7 De G. M. & G. 470. were also referred to.

B. B. Rogers (Westlake, Q.C. with him) supported the contention of the Attorney-General.

Sir Henry Jackson, Q.C. in reply.-Unless there is a declaration to the contrary, each fund, pare or impure, must bear its own share rateably. In the cases before Lord Selborne (Wills v. Bourne) and Lord Cairns (Miles v. Harrison) words sufficient were found; but here the testator has avoided disturbing the general rule.

BACON, V.C.—I think the arguments which have been addressed to me, and the cases which have been cited, show that this is a question of cɔnstruction. Miles v. Harrison and Wills v. Bourne (sup.), the cases that were before Lord Cairns and Lord Selborne, which I have been looking at during the course of the argument, proceed upon the words of the wills there existing, which were different to the words contained in this will. In the case before me the testator has plainly pointed out what he calls his residue, and he has charged upon this residue the payment of his debts and so on, which would unquestionably include, according to the practice of this court, the costs of this suit; having done that he gives the charitable legacies out of such part of his estate as may by law be applied to the payment of them, and he directs that the