June 23, 1881. ] 
JOURNAL OF HORTICULTURE AND COTTAGE GARDENER. 
507 
debentures pledged to the debenture holders. They therefore ac¬ 
quired a most material interest in the sums which were to arise from 
the gardens, ^nd they acquired, therefore, a material interest in 
seeing that the tirm created in those gardens and demised to the 
Horticultural Society is not put an end to except in accordance with 
the terms of the instrument on the faith of which they advanced 
their money; and considering that the instrument was framed 
between the parties with a view to raising the money, I think the 
debenture holders are entitled to say that they stand in a position 
somewhat different to that of persons who claim merely under one of 
the two contracting parties. 
Now, the Committee did not meet in the year 1873. There was a 
bona-fide, difference of opinion between the Society and the Com¬ 
missioners with regard to the propriety or impropriety of the 
appointment of the three members named by the Horticultural 
Society. The Committee did not meet in 1874, and for the same 
reason. In 1875 that difficulty was removed, but the Committee did 
not meet then, although it was undoubtedly, as it appears to me, in 
the power of the Commissioners to have required the Committee to 
meet then. In 1876, 1877, and 1878 the same thing happened, and the 
Committee in fact never met from some time prior to 1873 down to 
the present hour. In point of terms it appears to me to be plain that 
the allowance by the Committee is necessary for the ascertainment of 
the expenses, and in point of substance I think the meeting of the 
Committee was a matter of great importance. The evidence before 
me tends to show (I do not say it conclusively shows) that in some 
of the years if the Committee had met and exercised the vigilance 
with regard to expenses which they had exercised in previous years 
the portion of the money payable by way of rent might have been 
pa d to the Commissioners ; and if the interference of the Committee 
was essential or important to the settling of the expenses, it, of course, 
affected all the subsequent sums, because until the expenses had been 
paid the debenture holders could not be paid, and until the expenses 
and debenture holders had been paid the sums payable by the Society 
by way of rent could neither be paid nor ascertained, and therefore 
the question whether the sum or sums payable under the agreement 
to the Commissioners for rent did fail in the five years appears to me 
to turn on whether the prior charge by way of expenses had or had 
not been ascertained, because until the ascertainment of the prior 
charge you cannot tell whether the subsequent sum exists or no. I 
think, therefore, that in point of substance as well as in point of form 
the sum payable has never been ascertained, and it is impossible 
therefore to say that that sum has failed. 
Then, no doubt, it has been argued with great force that the Horti¬ 
cultural Society have estopped themselves from settingup this con¬ 
tention because the accounts of the Society have been produced before 
me, and although those five years are not measured from the same 
dates, yet during the whole period covered by the five years to which 
I have referred the whole expenses of the Society were, together 
with the debenture interest in certain years, sufficient to consume the 
whole receipts from the gardens, and left nothing whatever payable 
by way of rent to the Commissioners. I have a difficulty in saying 
that those accounts worked the estoppel contended for. In the first 
place they may prevent the Society from saying that the expenditure 
was not perfectly bona-fide on their part; but it does not follow that 
their judgment of what was right to be expended and the judgment 
of the Committee as to what was right to be expended would neces¬ 
sarily agree. They are two bodies who might have differed honestly 
one from the other, and I am unable to come to the conclusion that 
there is any estoppel in those accounts on the Society which would 
prevent them from saying that the Committee might have allowed 
smaller sums. 
Then in the next place there is this difficulty, that for such an 
estoppel to be fair, and to be that which can be relied upon, it must 
be mutual. The Commissioners must be prevented from saying that 
the accounts can be opened, as well the Horticultural Society must 
be prevented from saying that they did not fairly expend all the 
money. I am at a loss to see how the Commissioners are prevented 
from saying that a portion of that money was improperly expended 
in the expenses of the gardens. If the consent of the Committee 
was a condition precedent to the outlay by the Horticultural Society, 
then, as that consent was not given, not a farthing of those sums 
can be allowed to the Society ; if it was not a condition precedent, 
then the accounts are open between the parties, and the Commis¬ 
sioners might still be heard to say that a portion of the sums so ex¬ 
pended on the Horticultural Society’s expenses was improperly 
expended by them. Again, I am at a loss to find any precedent for 
holding that a term can be extinguished by estoppel. According to 
my view a forfeiture, if it is to take effect, must take effect according 
to the very terms of the instrument, and I have great difficulty in 
saying that the allegation by the Horticultural Society that they 
fairly expended those sums in the absence of the Committee to guide 
them, precludes them from saying that the sum payable by them to 
the Commissioners by way of rent has never been in fact ascertained 
in the manner expressed. 
It has also been argued that by the effect of the instrument of 
1876 the Horticultural Society have again estopped themselves from 
setting up this contention. I do not so read the recitals in the in¬ 
strument. They refer to the past receipts during certain years as 
having been insufficient for the payment of all the sums charged by 
the fourteenth clause of the agreement of 1860. They recite in anti¬ 
cipation that in the year 1876 the Commissioners may become en¬ 
titled to exercise the right of re-entry for non-payment of rent. 
Under what circumstances that anticipation arose I do not distinctly 
know, but it does not appear to me to be a conclusive admission 
between the parties that the deed is to operate in any other manner 
than that which, according to its terms, I hold it ought to operate in. 
But even supposing there was an estoppel as against the Horti¬ 
cultural Society, which would prevent their saying that the rent 
payable had been ascertained, and that no such sum existed because 
no payment was made, it remains to be inquired whether the deben¬ 
ture holders are in any manner bound by the estoppel. I have 
already indicated my opinion that the contract of 1860 was made for 
the purpose of enabling the Horticultural Society to raise money 
upon it, and I think the debenture holders are entitled to every 
security and every safeguard which that instrument intended to pro¬ 
vide for them. One of those safeguards was the appointment of 
this Committee. In the appointment of that Committee the deben¬ 
ture holders and the Commissioners had similar interests. They 
were both interested in cutting down the expenses to a reasonable 
extent, because each of them had a charge upon the proceeds of the 
gardens subsequent to the expenses. They must be taken, therefore, 
to have advanced their money upon the faith of there being a Com¬ 
mittee appointed in the manner indicated by the deed, which should 
act from time to time in their interest, which should ascertain the 
expenses, and, therefore, ascertain the sum payable by way of rent 
ascertainable as between the parties ; and they must be taken further, 
in my view, to have contracted that the term of thirty-one years shall 
be put an end to only in the event of the sums payable by way of 
rent being ascertained and being found for five consecutive years not 
to equal £2145. 
In my judgment, as I have already indicated, the sum payable by 
way of rent has never been ascertained, because the prior expenses 
have never been ascertained. The debenture holders, therefore, I 
think, are in a position to say, “ You have contracted between your¬ 
selves for the creation of a term determinable on a certain event only; 
you have induced me to lend money on the faith of that term, or 
upon the faith of raising a charge upon the money arising from the 
term ; you have, therefore, given me an interest in the continuance 
of the term. It has been stipulated that that term shall only be extin¬ 
guished in the event of a certain sum failing to meet another, which 
event has never happened, because you have, by disagreement between 
yourselves, never provided the machinery for ascertaining the amount 
of the prior sum.” 
I hold, therefore, that the forfeiture upon which the plaintiffs rely 
has not arisen; consequently that their claim made in the present 
action is not sustainable, and I dismiss the action with costs. 
CRICKETS IN CUCUMBER HOUSES. 
To “A Cornish Subscriber,” who is troubled with crickets 
in his houses, I would say that he cannot do better than try 
phosphor paste in the following way—Cut some thin slices of 
bread and butter, and upon this spread a moderately thick layer 
of the paste. Cut the bread into pieces of about an inch square, 
and lay them about in the haunts of the crickets. If they do not 
partake the first night or two they do so eventually, and in a few 
days many of them will be found dead, and if the practice be 
continued they will be all destroyed. 
I have been much troubled with them this spring eating the 
young roots of Orchids, and getting among and eating the tips of 
the roots of Pines, besides making great destruction in the Peach 
house, as well as eating ravenously the Cucumbers and Melons, 
also nearly all cuttings and seedlings in the propagating house 
have been eaten by them. I at first tried various insect-destroy¬ 
ing powders, but none answered so effectually as phosphor paste, 
After one night in these heated structures the paste becomes dry 
and the bread hard, so that it must be renewed and a fresh sup¬ 
ply provided. I purchase the paste in small penny bottles, 
because when a bottle is once opened the paste loses strength. 
It will destroy anything that will eat it, and should be laid down 
the last thing at night and removed early in the morning. 
I have also been much troubled with mice in one of the newly 
made Vine borders, and they have been destroyed by the same 
means. A house was planted last year with seventeen Vines, and 
the mice ate through the stems of eleven of them during last 
winter. Has any one known of such a case as this before ?— 
Thomas Record. _ 
I notice in last week’s Journal that a correspondent from 
Cornwall is troubled with a plague of crickets. A few years ago, 
when living in Manchester, we were infested with crickets and 
cockroaches. We procured a box of Hardeman’s beetle powder, 
which drove both these pests away in a very short time.— James 
Percival. 
Bedding Pelargoniums. — “ C. P. P.” deserves honour for 
continuing to cultivate Pelargoniums through all the years the 
