MICHAELMAS TERM, 29 VICT. void it might have afforded a defence; but it states that the fee simple passed under it. The legal owner having built a wall upon the land, the defendant is not justified in knocking it down merely because his wife is entitled for life to the rents and profits of the land. It may be that the wall was built in pursuance of the trusts of the settlement. If the plaintiff has wrongfully obtained possession of the trust property and built upon it, the cestui que trust has the same remedy in a Court of equity against him as against the trustee Rolfe v. Gregory (a); but the defendant has no right to obtain redress by his own act: Hyde v. Graham (b). Crompton, contrà.-The plea affords a good equitable defence. The trustee having wrongfully conveyed the legal estate in the land to the plaintiff, with notice of the trust, he became in equity a trustee for the defendant's wife. If an action be brought by a trustee against his cestui que trust a Court of equity will restrain it. [Martin, B.—In the case of a cestui que trust for life and one in remainder, if the trustee erects some building on the land, which is an improvement to it, but the cestui que trust for life prefers it in its unimproved state, has he a right to knock it down?] Here the action is for entering on the land, and the destroying the wall is matter of aggravation. In Story Equity Jurisprudence, § 533, vol. 1, p. 615, 6th ed., it is said "that trusts are enforced, not only against those persons who are rightfully possessed of trust property as trustees, but also against all persons who come into possession of the property bound by the trust, with notice of the trust." The defendant was in possession by permission of the trustee, and in right of his possession pulled down the wall. [Channell, B.-Suppose the wall had been built (a) 34 L. J. Chan. 274. (b) 1 H. & C. 593. VOL. IV.-H. & C. EXCH. 1865. DRAKE V. PYWELL. 1865. DRAKE v. PYWELL. by the trustee, would the defendant have been justified in pulling it down?] This case is different, because the plaintiff, having acquired the property by a breach of trust, a Court of equity would restrain him from interfering with it. There is no necessity to set aside the deed; a Court of equity would stay the action, and appoint a new trustee. In those cases in which Courts of law have held equitable pleas bad, because they could not do complete justice between the parties, there have been equities on both sides, and it is a fundamental principle that he who asks for equity must do equity. C. Wood, in reply.-The plea does not shew that the defendant has any right to the possession of the land, but only that his wife is entitled to the rents and profits of it. He was a mere tenant at will to the trustee, and the conveyance to the plaintiff, although a breach of trust, determined the tenancy. [Pollock, C. B.-The defendant's wife, being entitled to the rents and profits, had the option of being in possession, and if the trustee had brought ejectment, a Court of equity would have stayed the action.] Cur. adv. vult. Bramwell, B., now said.-The question in this case is whether a plea on equitable grounds is good. The declaration states that the defendant broke and entered the plaintiff's close and pulled down a wall. The defendant pleaded that one Brown was seised in fee of the land in trust for the defendant's wife for her life, and that, whilst the defendant and his wife were in occupation of the land, the trustee, with the knowledge of the plaintiff, committed a breach of the trust, and illegally conveyed the land to the plaintiff, who built a wall upon it, wherefore the defendant in his own right, and by the direction of his wife, pulled it down. We think this a bad plea; because, although the trustee may have committed a breach of trust in conveying the land to the plaintiff, the building the wall on the land, notwithstanding the defendant objected to it, may have been a benefit to the estate, and it may be that the cestui que trust in remainder would rather have the wall standing than demolished. There are other considerations which tend to shew that the plea is bad. It would seem that the proper course would be to file a bill in equity against the trustee and the plaintiff for a reconveyance of the land, when, if the defendant and his wife have sustained any injury by the plaintiff building the wall, compensation might be awarded to them. But, however that may be, we think that the plaintiff is entitled to judgment. Judgment for the plaintiff. 1865. DRAKE บ. PYWELL. STUBLEY, Administrator of MARY STUBLEY, deceased, Nov. 18. THE declaration stated that the defendants, at the time The defendof the grievances, &c., were possessed of a railway which ants' railway crossed on a level a public footway; and on each side of the line were swing-gates through which passengers entered. At one of these gates the view up and down the line was obstructed by the piers of a railway bridge which crossed it, but near the line there was a clear view of 300 yards in each direction. A woman who approached the line by that gate waited until a luggage train had passed, and immediately afterwards proceeded to cross the line, when a person on the other side twice called out to her, but, being deaf, she did not hear, when an express train, which the luggage train had prevented her from seeing, knocked her down and killed her. Thirtysix passenger trains passed along the line daily, besides luggage trains. No person was stationed at the crossing to warn passengers of danger, but caution boards were placed there.-Held, that there was no evidence for the jury of negligence on the part of the defendants. 1865. STUBLEY v. LONDON AND NORTH WESTERN RAILWAY CO. crossed on the level thereof a public highway, and were also possessed of an engine and train of carriages then travelling upon and along the said railway under the care and management of their servants: Yet the defendants did not take reasonable or proper care, or use reasonable and proper means for the protection of persons using the said highway where it was so crossed by the said railway, and by their servants drove and managed the said engine and train of carriages upon and along the said railway in a careless and negligent manner, whereby the said Mary Stubley, who was then lawfully using the said highway where it was so crossed by the railway, was knocked down by the engine and train of carriages, and thereby wounded and injured, and by reason of the wounds and injuries thereby occasioned to her, afterwards and within twelve calendar months next before this suit, died, &c. Plea (inter alia), not guilty.-Issue thereon. At the trial, before Blackburn, J., at the last Leeds Summer Assizes, the following facts appeared.-Near the Butley station, between Leeds and Dewsbury, the defendants' railway crosses on a level a public footway, leading from Butley to Morley. This footway was much frequented in consequence of there being a large mill in the neighbourhood. On each side of the railway, at a few yards from the line, was a swing gate, through which foot passengers passed in crossing the railway. A person standing at the gate on the Batley side of the railway could not see more than thirty yards along the line in the direction of Leeds, the view being obstructed by the stone pier of a bridge by which the West Yorkshire Railway is carried across the defendants' railway; but about nine feet from the rails there is a clear view of nearly 300 yards up and down the line in either direction. On the morning of the 9th December, 1864, the plain tiff's wife, who was employed at the mill, was proceeding to her work. She passed through the gate on the Butley side of the railway, and waited until a long luggage train from Dewsbury to Leeds had passed. As soon as it had passed a person at the gate on the Morley side of the railway saw her begin to cross the line. He twice called out to her, and held up his hands, but, being deaf, and looking down on the ground, she neither heard nor saw him, and proceeded to cross the line, when an express train from Leeds, which the luggage train had prevented her from seeing, knocked her down and killed her. Thirty-six passenger trains passed along the line daily, besides luggage trains. No person was stationed at the crossing to warn foot passengers that trains were due; but boards were placed on each side of the line with "Beware of the Engine" upon them. At the close of the plaintiff's case, the defendants' counsel submitted that there was no evidence for the jury of negligence on the part of the defendants. The plaintiff's counsel having cited Bilbee v. The London, Brighton and South Coast Railway Company (a), and the ruling of Pollock, C. B., in Stapley v. The London, Brighton and South Coast Railway Company (b), the learned Judge reserved leave to the defendants to move to enter a nonsuit, if there was no evidence on which the jury could reasonably find negligence, and subject to that he told the jury to assume, for the purpose of the day, that the law casts on the Company the duty of taking all reasonable precautions for the purpose of protecting passengers from risk, including that of keeping watchmen to warn passengers of the approach of a train, if the nature of the traffic and the place made that a reasonably necessary precaution; but they must not suppose that the defendants were bound to build a foot-bridge, the legislature having authorized a (a) 18 C. B. N. S. 584. (b) Post, p. 93. 1865. STUBLEY V. LONDON AND NORTH WESTERN RAILWAY CO. |