HEATH, J. As to this ground, it is clear from the evidence that the book was the property of the master, and though there might be inventions of the plaintiff in it, yet they were the perty of the master. pro CHAMBRE, J. The master has a right to something beside the mere manual labour of the servant in the mixing of the colours; and though the plaintiff invents them, yet they are to be used for his master's benefit, and he cannot carry on his trade without his book. 1813. MAKEPEACE V. JACKSON. Rule refused. GREGORY . HENDERSON. Tussizes 1813, before Heath, J. [ 772 ] May 8. Devise to A. in trust to permit and suffer the testator's widow to have, hold, use, occupy, possess, and enjoy the full, free, and uninterrupted possession and use of all the interests of mo nies in the funds, and rents and profits arising from the testator's houses, for her natural life, if HIS was an action of replevin, tried at the Lewes spring assizes 1813, before Heath, J. Robert Henderson, deceased, in 1801 demised the premises by lease to the plaintiff for 21 years, and devised them by his will; and the sole question was, whether on the true construction of that devise under the statute of uses, the defendant had the legal estate in her, so as to enable her to make the distress. The testator devised unto his good friends and trustees William Leader and John Mills, Esquires, his several houses therein described, and also all his monies in the public funds or otherwise, which he should die possessed of, to hold to them his said trustees to and for the intents and purposes thereinafter, mentioned, viz. upon trust to permit and suffer his the testator's wife S. E. Henderson, the defendant, to have, hold, use occupy, possess, and enjoy, the full, free, and uninterrupted possession and use of all and singular the interests of the said monies in the funds, or otherwise, and rents and profits arising from the said houses, for and during the term of her natural life, if she should continue his widow and unmarried; and that her receipts for all rents, interests, good and valid, she providing profits, with the approbation of any one of his said trustees, should be good and valid, she his said wife providing for, and educating properly, all the (five) children (therein named) which the testator then had; and also paying Mrs. M. Danby thereout of his said estates one annuity of twenty pounds, half-yearly, to whom the testator bequeathed the same during her natural life, she should re main unmarried; and that her receipts for all rents, &c. bation of any one of his trus with the appro tecs, should be for and educating properly the dren, and also paying two annuities thereby bequeathed to testator's chil M.D. and M.I. of 201. for their lives, besides direction until board and lodging to M. I. and that his children should be solely under their mother's marriage, or properly provided for: Held that the use was executed in the devisees in trust. and 1813. GREGORY V. and likewise paying to Miss M. Jones, besides board and lodging, one other like annuity of twenty pounds, half-yearly, to whom the testator also bequeathed the same; and it was his HENDERSON. Will that his said *children should be solely under their mother's [ *773] direction until marriage or properly provided for, whereby they could maintain themselves: but in case the defendant S. E. Henderson should marry again, or die, then upon trust that his said trustees should take the management and direction of all the testator's said estates and monies, and after payment of the above-mentioned annuities to Mrs. Danby and Miss Jones during their natural lives, he directed that the remainder of his rents, profits, interests, and proceeds of his houses and monies, should be disposed of by his trustees for the maintenance of his children, and that the receipts of each child for their own proportion to the trustees, should be a perfect acquittal for the said sum, and this to continue during their natural lives, and at their decease to go to their children lawfully begotten, (in equal portions,) for ever; and that the receipt of the females should still continue to have its full force, notwithstanding they were married and termed femme couvert in law: in case of the death of any of his children without issue lawfully begotten, their proportion or share should be equally divided amongst the survivors; taking care, notwithstanding any thing that might be said above which could be construed to the contrary, that in case of the family's separating, a sufficient sum from the sum total should be taken for Miss Jones's board, not less than 50l. per annum, besides her annuity; and when she should die, to be buried at the expence of all of them. And the testator ap pointed W. Leader and J. Mills, together with the defendant S. Henderson, executors and executrix. If, therefore, the use was executed, Mrs. Henderson was the landlord, and the plaintiff was her tenant. Heath, J. thought that no doubt a simple devise to trustees to suffer any one to enjoy rents and profits was a use executed in the cestuy que trust, unless there is any thing to be done by the trustee: but in this case there were re[ 774] ceipts to be approved and annuities to be paid. He therefore thought that as there was something to be done by the devisee, the use was not executed in the defendant; and under his direction the jury found a verdict for the plaintiff. Shepherd, Serjt. now moved to set aside the verdict and have a new trial. The word trust had no other operation than if he had devised to his trustees "to the uses following." It is or 1813. GREGORY v. dinary that the trust to permit and suffer A. to receive the rents, vests the legal estate in A.: Doe ex dem. Leicester v. Bigg, ante, 2. 109. The addition that the defendant's receipt shall be a discharge with the approbation of any one of the trustees, is re- HENDERSON. dundant, and inoperative to restrain the necessary consequence of the legal estate which the testator had before given the defendant, viz. that her receipt, without such approbation, would be a legal discharge. There are acts to be done by the defendant. She is to maintain the children, and Miss Jones; and is to pay the annuities, which distinguishes this from the class of cases where the trustees themselves are to do the acts. The condition of paying the annuities and maintaining the children raises the inference that the defendant has the legal estate subject to those charges. CHAMBRE, J. In this case the legal estate is in the trustees: to determine that, we must look to the intent of the will; and it seems pretty clear that intent was not to give the defendant the legal estate. It is true, there is very little left for the trustees to do during her widowhood, but if it was intended that she should have the legal estate, there would have been no need of any trustees at all. The testator making the approbation of the trustees necessary to her receipts, I think, shews it was not intended to give the defendant a legal estate. I think therefore there is no reason for granting the rule. GIBBS, J. The rule has been misconceived. Though an estate be devised to A. and his heirs to the use of B. and his heirs, the Courts will not hold it to be a use executed, unless it ap pears by the whole will to be the testator's intent that it should be executed. The Courts will rather say the use is not executed, because the approbation of a trustee is made necessary, than that the approbation of a trustee is not necessary, because the use is executed. The very circumstance which is to discharge the tenants, is the approbation of one of the trustees: "I leave my wife to receive the rents, provided there is always the control of one of the trustees upon her receipts." The testator therefore certainly meant that some control should be exercised, and what could that control be, except they were to exercise it in the character of trustees? I agree therefore that the legal estate is in the trustees, and that the rule ought not to be granted. Rule refused. [ 775 ] GLENNIE 1813. May 8. An underwriter cannot set off, as a mutual credit a after the bankruptcy of the ums of the same GLENNIE and Others, Assignees of the Estate of G. SHARP and THI HIS action was brought to recover a total loss on the subscription of the defendant to a policy effected by, and in the name of the bankrupts, Sharp and Sons, whose assignees the gainst a loss, a loss accruing plaintiffs were, on the ship Neptunus, at and from St. Petersburgh to London, at the premium of ten guineas per cent., to assured, premi- return 21. 10s. per cent. for* Baltic convoy, and 2l. 10s. per cent. and other poli- more for North Sea convoy, and arrival. The cause was tried cies due before at the London sittings after Hilary term 1813, before Gibbs, J. from the assur- upon the following admissions. The bankrupts were the owners of the ship Neptunus, and effected the policy above meninsurance bro- tioned on that ship, which policy was on 21st July 1812 subker in effecting those policies. scribed by the defendant for 300l. at a premium of 10 guineas On the 1st of October 1812 a commission of bankper cent. the bankruptcy ed, who was himself his own Neither can he set off re ges not com bankruptcy. underwriter must, upon the conclusion of turns of premi- rupt issued against the bankrupts who had been thereunder um upon voya- found and declared bankrupts, and their estate and effects had plete before the been legally assigned to the plaintiffs. The bankrupts at the Although the time of their bankruptcy were indebted to the defendant in the sum of 600l. 16s. for premiums of insurance for policies by him underwritten to the bankrupts, and including 317. 10s. for the premium on the policy in question. On the 20th of August 1812 the Neptunus sailed from St. Petersburgh on the voyage insured, and during such voyage was on the 11th day of October in the same year captured and wholly lost. On the 30th of [ *776] October the defendant proved the said sum 600l. 16s. under the the adventure, necessarily become debtor to ther for a loss the assured, ei or a return of premium. commission as a debt due to him from the bankrupts, but the loss of the ship was not then known to him. The only question to be tried was, whether the defendant was entitled to have a sufficient or any part of that sum of 600l. 16s. applied and set off against the sum of 300l. for which the defendant had so subscribed the policy, he thereby offering, on being allowed so to set off, to reduce his proof under the commission by that sum. It was further proved, that the nature of the dealings between the bankrupts and the defendant, was, that the bankrupts acted as their own insurance brokers. When the defendant subscribed policies for the bankrupts as an underwriter to them, instead of receiving the premiums, he suffered them to become items in account, against which were to be placed either losses or returns *as they should accrue, though it was certainly in the power of the defendant at any time to call for his premiums without waiting for losses or returns. Shepherd, Serjt. for the plaintiffs, contended that as well the loss as the returns of premium in case of arrival, were at the time of the bankruptcy wholly contingent debts, dependant on future events, and that they therefore could not be set off by the defendant against the debt which he owed to the plaintiffs. Lens and Blosset, Serjts. for the defendant, on the other hand, contended, that there had been, within the statute 5 G. 2. c. 30. s. 28. “mutual credit given by the bankrupts and the defendant, before the bankruptcy;" and that, therefore, "the account was to be stated between them, and one debt to be set against the other, and that what should appear to be due on either side on the balance of account, and on setting such debts against one another, and no more, was to be claimed or paid on either side respectively." And he referred to the cases of Atkinson v. Elliott, 7 T. R. 380. French v. Fenn, Cooke's Bankrupt Laws, 5th edit. 554. Gibbs, J. referred to Ex parte Ockenden, 1 Atk. 235. as a (a) qualification pronounced by Lord Hardwicke himself, of the doctrine he had advanced in the case Ex parte Deeze, 1 Atk. 228. he was of opinion that he could not hold this to be a case of mutual credit, without going further than the Courts had in any case hitherto gone, and under his direction the jury found a verdict for the plaintiffs for the full amount of the demand, subject to the question reserved, of the defendant's right to the set-off. 1813. GLENNIE v. EDMUNDS. [ *777 ] Accordingly, Lens, in Easter term 1813, moved for a rule [ 778 ] nisi to set aside the verdict and have a new trial. He urged that upon this insurance there was an absolute certainty that the defendant would have to pay something to the bankrupts, either a partial return of premium in case of the ship's arrival, or a loss in case of her capture: the bankrupts had therefore entrusted the defendant with those sums, the amount only of which was uncertain, and the defendant had entrusted the bankrupts with the premiums, which constituted a mutual credit. He referred to Smith v. Hodson, 4 Term Rep. 211. and Cox v. Fenn. HEATH, J. I do not think it is possible to make this a mutual credit; it is only a possible debt, and it would be of no use (a) See Green v. Farmer, 1 Bl. Rep. 653. and the note on the case cited in the latest edition of Atk.; and see Olive v. Smith, 5 Taunt. 60. to |