LORD MOSTYN V. SPENCER. [4] contradicted, nor is any explanation given by the plaintiff, as to the nature of the agency, or its limits. This is the more remarkable, as the alleged agency of his father, Llewellyn Lloyd, is distinctly denied, while not a word is said as to the agency of the son. It must, therefore, be taken on these affidavits, that Cynric Lloyd, the nephew of the plaintiff, was also his agent; and it was, therefore, highly irregular and improper to put a person so connected with him in the commission, and to have allowed him to be one of the acting Commissioners. If any inconvenience results to the plaintiff from this irregularity, he must ascribe it entirely to himself or his agents. It is of the utmost importance, that the rules of the Court on this subject should be strictly enforced, not merely for the purpose of ensuring impartiality in the examination of the witnesses, and in the statement of the evidence, but also for ensuring secrecy as to the testimony which they had given. The irregularity was the more objectionable, as the proceeding was ex parte, the defendant not having joined in the commission. It is clear, therefore, that in such a case, unless there be some objection as to the time or the circumstances of the application, the depositions ought to be suppressed. [His Lordship then referred to the circumstances under which the objection was taken, and held that there was no delay in taking the objection, and continued as follows:] It is contended, that the depositions having been used, the objection comes too late, and the case of Gordon v. Gordon, and what fell from Lord ELDON on that occasion, are relied upon in support of the objection. But in that case, the cause had been reheard, and an order made on the rehearing. Here, although the depositions have been used before the Master, he has not yet made his report, but waits the result of the present application. I think this objection, therefore, cannot be sustained. I concur with the MASTER OF THE ROLLS, in regretting that the plaintiff should, by the death of William Pugh, be deprived of the benefit of his evidence: but it is of infinite importance in the administration of justice in this Court, to adhere strictly to the rule, on which the present objection is rested: and it must not be allowed to bend to the inconvenience that may exist in any particular case, and especially where that inconvenience has been caused by the plaintiff or his agents. The motion, therefore, must be refused, with costs. THE ATTORNEY-GENERAL v. PARGETER (1). (6 Beav. 150-156; S. C. 13 L. J. Ch. 81.) A husbandry lease of charity lands for 200 years at a fixed rent, cannot, unless there be some special reason, be supported in equity. Such a lease of charity lands cannot be supported upon any custom of the country in which the lands are situate. The purchaser of a charity lease takes with notice of the facts appearing thereon showing its equitable invalidity. THIS was an information filed for the purpose of setting aside a lease of charity lands, which had been granted by the trustees for a term of 200 years at a fixed rent of 14l. 38. It appeared that Thomas Foley had in his lifetime built a school for sixty boys. By his will, he devised the house and various real estates in fee to the persons named in his will, and gave to the same persons a sum of money to be expended in the purchase of other real estates, to be conveyed to them; and he directed the lands to be employed for the purposes of the charity. He afterwards in his will, speaking of his devisees, termed them "feoffees." The testator died in 1677, and new trustees were afterwards appointed. On the 28th of September, 1695, the trustees demised part of the charity lands to William Parker for 200 years, at a rent of 141. 3s. The lease contained an exception of the mines and quarries, coal, ironstone mines and minerals, with liberty to search for and get the same, and also an exception of the hares and other game, with liberty for three of the trustees, &c. to sport, to hawk upon the premises, and a covenant by the lessee to preserve the The lessee did not subject himself to any obligation to build or to expend any money, but he covenanted to pay the reserved rent, to keep the buildings and fences belonging to the premises in good and tenantable repair, to use upon the premises the hay, straw, and fodder, and the dung, soil, and compost arising thereon, and to manure the premises in a good and husbandly game. manner. The defendant stood in the situation of a purchaser of this lease. Mr. Kindersley and Mr. Spurrier in support of the information. * Mr. Pemberton, Mr. Turner, and Mr. Harwood, contrà. Mr. Kindersley, in reply. (1) See A.-G. v. Foord, post, p. 79. 1843. Jan. 23, 24. Rolls Court. Lord LANGDALE, M.R. [150] [151] [152] [153] A.-G. [In re The Berkhampstead Free School (1), Attorney-General v. PARGETER. Hungerford (2), Attorney-General v. Cross (3), Attorney-General v. v. Feb. 1. [154] Warren (4), and other cases were cited. The arguments of counsel sufficiently appear from the following judgment.] THE MASTER OF THE ROLLS: This is an information and bill filed to set aside a lease dated the 28th of September, 1695, whereby certain charity lands were demised to William Parker for 200 years, at the stationary rent of 14l. 3s. It does not appear that any consideration, other than the rent, was paid or agreed to be paid for the lease. There was no surrender of any former lease; the lessee did not subject himself to any obligation to build or to expend any money, but he covenanted to pay the reserved rent, to keep the buildings and fences belonging to the premises in good and tenantable repair, to use upon the premises the hay, straw, and fodder, and the dung, soil, and compost arising thereon, and to manure the premises in a good and husbandly manner. with I think that this is a husbandry lease, and not the less so, because there is an exception in the grant, of the mines and quarries, coal, ironstone, mines and minerals, with liberty to search for and get the same; and also an exception of the hares, partridges, pheasants, and other beasts and birds of warren, liberty for three of the trustees, their servants and followers, to hawk and hunt upon the premises, at their wills and pleasures, and a covenant by the lessee to preserve the game for the same persons. This being a husbandry lease of charity lands granted for 200 years at a fixed rent, it cannot stand, unless there be some special reason to support it. I am of opinion, that the length of the term is not justified or excused by the reservation of the mines, and the right to get coal and minerals. It is argued, that there are in this case circumstances, to show that the real foundation of the charity is not forthcoming: that there must have been some deed of covenant: and that if such deed of settlement were produced, it would or it might be thereby shown, that there was authority to grant this long lease. (1) 13 R. R. 43 (2 V. & B. 134). (3) 17 R. R. 121 (3 Mer. 524). (4) 19 R. R. 74 (2 Swanst. 291). It does not appear to me that the facts of the case afford any foundation for the argument, that there was any deed or instrument other than the will, whereby the estate was vested in the trustees. The testator, having built a school house in which sixty boys were placed, devised the house and various real estates to the persons named in his will in fee, and gave to the same persons a sum of money to be expended in the purchase of other real estates, to be conveyed to them in fee: he directed the lands to be employed for the purposes of the charity, and in afterwards speaking of the persons to whom he had made the devise, he calls them "feoffees," instead of "devisees" or "trustees," and from this it is argued, that it should be inferred that there must have been a feoffment besides the devise; but I own that it appears to me, from the context of the will, that in using the word "feoffees," the testator means only to designate, in one word, the several persons to whom he had devised the estate in fee. I cannot suppose that he made a devise of the lands to the same uses, to persons to whom he had previously conveyed the same lands by feoffment; and I do not think that the inscription on the picture. adds any probability to the argument. It does not appear what was the date of the inscription, and I think that by "feoffees," was meant the persons, who, as trustees, were possessed of the fee or inheritance of the estate, and that the will of the founder was the instrument by which the estate was settled. In the lease in question, the devisees are described as trustees. or feoffees, a description perhaps intended to reconcile their real character as trustees with the slightly erroneous description of them in the will, and on the testator's picture, if the inscription was existing at the date of the lease, which does not appear. It is next argued, that this lease was granted according to the custom of the country, and according to the usual mode of letting, adopted and acted upon by the trustees themselves. It appears, indeed, that the trustees had granted some other leases of the same kind, and an attempt was made to prove the alleged custom of the country. I think that the attempt was unnecessary, for if any number of such leases had been proved, they could not have established a custom which would have justified trustees in alienating the charity lands in this way, but the proof failed, and some leases for twenty-one years were produced. * A.-G. v. PARGETER. [ *155 ] [ *156] A.-G. ተ. PARGETER. It is lastly argued, that the defendant's father was a purchaser of the estate for a valuable consideration, and that he was not bound by an equity to set aside the lease founded on extrinsic circumstances, but the purchaser must be held to have had notice of the lease which he purchased. The equity of this case is not founded on extrinsic circumstances, but on the facts appearing on the lease itself, showing it to be such, that if due consideration had been given to the subject, neither lessors nor lessee could have thought the lease beneficial to the charity, or any thing less than a breach of trust. 1843. Jan. 24, 27. Rolls Court. Lord [ *171 ] GARDNER v. JAMES. (6 Beav. 170-172.) Where the distribution of a direct gift of residue among a class of children is expressly postponed by the will, children born after the death of the testator may be included in the class. THE testator, by his will, bequeathed his residuary personal estate to his executors, upon trust to "invest the whole residue thereof at interest, and pay 50l. per annum, part of such interest, unto Susannah Brunton, and her assigns for life; and after payment of the said sum of 50l. per annum, upon trust, to apply the residue of the interest of the said trust money, for and towards the maintenance, education, and support of any child or children of Henry Holland Gardner lawfully begotten, until he, she, or they should, respectively, attain his, her, or their age or ages of twentyone years; and also, in case of the death of the said Susannah Brunton during the minority of such child or children of Henry Holland Gardner, then, in trust to apply the whole of the interest of such trust money, or so much thereof as in the discretion of his said trustee should be considered necessary for that purpose, for the maintenance, education, and support of such child or children; and after the death of the said Susannah Brunton, and when such child or children of Henry Holland Gardner *should have attained such age or respective ages of twenty-one years as aforesaid, then, upon trust, to transfer such trust money to such child, if there should be only one, or if there should be more than one, to all such children, share and share alike; but if there should be no such child of Henry Holland Gardner living at the death of the said Susannah Brunton, or in case of the death of such child or children before they should attain the said age of twenty-one years as aforesaid, then, after the death of Susannah Brunton, the testator gave and |