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and the custom was admissible in evidence. Fur, L.J., said that the l custom admitted in evidence amounted to this: that, in the event of the non-disclosure of the prini:ipal's name at a certain time, the broker was to be personally liable. That custorri did not contradict the written coutract. The contract said that the _owner should be liable. The custom said that the broker should also be liable. The two were not inconsistent. No doubt they would be inconsistent if the custom said that the broker alone should be liable.——Coimsar., Hm-_uhi/, Q C., and L. E. P1/Ira; Finlay, Q.C., and Winch. SOLICITORS, Irvine 5- Hodges; Philip Tliorntim.


31st March.

PR.-\(‘1‘1C8—Tl1l11D Psn'r\'—Iuriziiuootrroiues—“ Darnunaur "—Rroii'r or TH-IRD Pair-rr -ro INTBFROGATE PLA1NT11’l’—JL'l)1CA'1‘l‘RE Aer, 1873, s. 100 —R. B. C., 1883, XXXI , 1.

This was an appeal from a decision of Kay, J . (ante, p. 302, 35 W. R.

357), the question being whether a “third party" was entitled to deliver interrogatories for the examination of the plaintiff. Rule 1 of order 31 provides that " In any action where relief by way of damages or otherwise is sought on the ground of fraud or breach of trust, the plaintiff may at any time after delivering his statement of claim, and a defendant may at or after the time of delivering his defence, without any order for that l purpose, and, in every other cause or matter, the plaintiff or defendant ~ may, by leave of the court or a judge, deliver interrogatories in writing 1 for the examination of the opposite pa»-tins, or any one or more of such i parties.” Section 100 of the Judicature Act, 1873, provides that the word “defendant” shall include “ every person served with any writ of summons or process, or served with notice of, or entitled to attend, any proceedings." The action was brought for the specific performance by the defendant compaiiy of an agreement to take a lease from the plaintiff of a piece of lan , with the coal thereunder. The company commenced to work the coal, but they were served by the Ecclesiastical Commissioners with notice that they, as lords of the manor, claimed to be the owners of the coal. On this ground the company refused to accept a lease from the plaintiff. The company served notice on the commissioners claiming indemnity from them, in the event of the plaintiff establishing his claim. On the 30th of J une, 1884, on the application of the defendants, an order was made giving leave to the Ecclesiastical Commissioners to deliver a counter-claim. On the 30th of July, 1884, on the application of the commissioners, an order was made giving them leave to deliver a statement of defence with their counter-claim. On the 8th of December, 1884, the Court of Appeal ordered the counter-claim which the commissioners had delivered to be struck out, on the ground that the commissioners were not “defendants” within the meaning of rule 3 of order 19 (33 W. R. 241, _28 Ch. D. 333, 29 Soucn-oas' J ovruum, 130). The commissioners then obtained leave to withdraw the defence which they had delivered; and, on the 17_th of March, 1885, an order was made, on their application, that the question between them and the defendants should be tried after the trial_of the action, and that, pursuant to rule 53 of order 16, they, as third parties, should be at liberty to appear at the trial and oppose the plaintiff's claim, so fa_r as they might be affected thereby, to adduce evidence. and to cross-examine the ])lBlfltlfl'S witnesses. On the 10th of January, 1887, the Court of Ap_peal_(-35 W. R. 235, 34 Ch. D. 223, ante, p. 183) gave the plaintiff leave to de ive_r interrogatories for the examination of the commissioners, as being'“cpposite parties ” within the meaning of rule 1 of order 31. The comm_issioiiers then applied for leave to deliver interrogatories for the examination of the plaintiff. Kay, J ., refused the application, on the ground that the Court of Appeal had, in ordering the counter-claim to be struck out, decided that the commissioners were not defendants; and, as o_nly a plaintiff or a defendant could deliver interrogatories, the commissioners were not entitled to do so.

’I:H_1-1 Coi'i<r_ or APPEAL (Cor-ro:\' and LINDLHY, L.JJ.) reversed the decision, holding that the commissioners were entitled to leave to deliver the interrogatones, on_ the ground that, though the mere fact of their R8108 brought,in as third parties might not place them in the position of

defendants, as the Court of Appeal held on the former hearing of the

present case (33 W. R. 241, 28 Ch. D. 333, 29 S0r.rcrroii.s' JOURNAL, 130),

yet, by the order _of the 17th of March, 1885, the commissioners were

placed in the position of “ defendants," and came within the definition of that word in section 100.—COUNSEL, Bl/rl.'e'sIe_t/ ,- Dunhmii. Sonrcirons, TVl|r!:, Barrett, Q Co. ; Urassrnan, Cros.s-man, 4- Prielmrri.

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purchase, and the President and Fellows accordingly applied for and obtained the Sion College Act, 1884, which empowered the corporation to sell and the college to buy the land in question. The Act of 1884 did not in express terms incorporate the Lands Clauses Act, 18-l5, but section 4 provided that “all purchase-money to be paid by the President and Fellows of Sion College for the said piece of land shall be paid into the Bank of England in the same manner and to the same account as it the same were paid in under the Lands Clauses Consolidation Act, 18-L3, and other Acts amending the same, and shall be dealt with accordingly." The purchase-money had been, in pursuance of this section, paid into the bank by the college, and upon an application for the investment of this money the above-mentioned question of jurisdiction arose. Kay, J ., held that the President and Fellows of Sion College were not liable to pay the costs of investment. He was of opinion that the college was not an undertaking or work of a public nature within the meaning of section 1 of the Lands Clauses Consolidation Act,andthat that Act was not, therefore, incorporated with the special Act of 1884, unless the latter Act contained an express incorporation of it, and he was of opinion that section 4 did not incorporate section 80 of the Lands Clauses Consolidation Act so as to enable the court to order the payment of the costs in question.

Tire COURT or APPEAL (Co-r-rox, LXNDL1!\', and Lorss, L.JJ.) atlirmed the decision. Co-r'ro.\', L.J., said that unless the proiisions of the Lands Clauses Consolidation Act were incorporated with the Act of 1884 the court had no jurisdiction to order the President and Fellows of Sion College to pay these costs. The question was whether section 80 of the Lands Clauses Consolidation Act, 1845, applied. It was said that section 1 of the Lands Clauses Act introduced that Act into the Act of 1881 That Act, however, was not like an Act authorizing a public undertaking, it was passed merely to enable the corporation to make a good title to part of the land which it was doubtful whether they had power to sell. Sectionl of the Lands Clauses Consolidation Act provided that it should apply to all future “undertakings” authorized y Acts which should authorize the purchase of land for such undertakings. That referred to works ota public nature, and independently of authority he should have thought that Sion College was not an undertaking of the kind intended by _the Act. But IVad4 v. T/16 lV¢s!2niusier Palace Hotel C0. (8 C. B. N. S. 2i6), seemed exactly in point. In that case an Act was passed to enable the Westminster Palace Hotel Co. to acquire land, and it was held that the Lands Clauses Consolidation Act was not incorporated. In his lor<_iehip's opinion, though Sion College was a charitable institution, from which the public might geta benefit, it was not a public undertaking such as was contemplated by the Lands Clauses Consolidation Act. In the next place it was argued that section iof the Sion College Act, 1884, incorporated the provisions of section 80 of the Lands Clauses Act. It was said that section 80 was one of a set of clauses dealing with purchase-money, the whole of which were applicable when the purchase-money was to be dealt with as purchase-money under that Act. But it could not be properly said that a direction to pay purchase-money into the Bank Oi England, in the same manner and to the same account as if the same wen‘ paid in under the Lands Clauses Act, would give power to the court todlijevi the payment otcosts of thainvestmentot themoney. In hislordship'sopini011 section 80 did not come within the reasonable meaning of the words. Then it was said that-section 80 must apply, because the money paid in could notlh‘ dealt with according to the Lands Clauses Act unless that section applied, for otherwise the costs would have to come out of that fund, "lid it was contemplated by the Lands Clauses Act that the fund should BOY be diminished by the payment of costs. But he did not consider this wasri suflicient reason for holding that B€Cl10Tl 80 applied. It was unfortunate that there was no such direction as is contained in that section, because when land was taken from the owners for a particular purpose. It ‘"5 most reasonable that those who took the land should pay the costs. Lmntsr and Lorss, L.JJ., concurred.—Covrmn., Sir Art/mr Watery. Q.C., and W. .Baker,- Ererill, Q.C., and W‘. D. Rawlins. Sotrcrroiis, TH

City SOZ~'t-itor; Clarke, Rail-lins, Q Ca.

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In this case the question arose whether an appeal lies from an 0111;: made by the Divorce Division as to costs. Section 13 of the Act 21 it Vict. c. 108 provides for the taxation of the costs in respect Of "Y business transacted in the Divorce Court by any one oi the reflmlliflz belonging to the Principal Registry of the Court of Probate, and i zd “ the certificate of the registrar of the amount at which such bill is 9:1! f shin be Bllblect t° “Plieal to the judge of the said court.” Section o "1 the Act 20 8: 21 Vict. c. 85 had provided that “ there shall be 110 aPg% on the subject of costs only." Section 49 of the Judicature Act. 1 U; provides: “No order . . . as to costs only, WhiCl1 117 1"’ ‘"9 1° or the discretion of the court, shall be subject to appeal, cxwpt 5.7 leiwe as the court or 1' ud8e making such order." In the present case an Old" aw made at the trial of a divorce action that the iisbaiid should Paine costs of the wife. The wife had been represented by three counsel. d the case was ii complicated one; there were four co-respondents; _l11 to‘ trial occupied a number of days. Hannen, P., directed the l'¢8"t"“ d disallow t e wife the costs of a third counsel. The wife appwledvlu the preliminary objection was taken that there was no right Of '1PP°”.‘“d

THE C01'ltT or Ar-Paar. (Corrorr, LINDLBY, and Lorizs, L-J-lldlsmgl 1, the appeal. COTTON, L J ., said that he felt considerable doubt whe eoé under section 13 of the Act of 1858, the decision of the judss W",,‘:d final, and also whether section 49 oi the Judicature Act-13731325) ,1;

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which case the Court of Appeal varied an order of the Divorce Division as to costs, no objection was raised to the right of appeal. His lordship would not now decide whether an appeal lay. But, assuming that it did, s judge of great experience had decided that, under the circumstances of the case, it was not right that the husband should bo burdened with the costs of a third counsel. Hannen, P., had expressly said that he did not intend to lay down any general rule. He had merely exercised his discretion on the facts of the particular case, and the Court of Appeal ought not to intvrferc. The court never interfered with the discretion of a taxing master on a question of amount. Ll.\'DLB\' and Lorss, L JJ., COllC\lTl'9d.—-COUNSEL, Sir 6'. Rim!-II, Q. C., I7. Matthews, and Srrutton ,Finlay, Q.C., Lockwood, Q.O., Searle, and U. N. Grouse.

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In this case (see ante, p. 363) a motion was made by the cficial liquidator of the company for an order, under the Companies Act, 1862, s. 87, to restrain B. Boaler from further proceedings before the Lord Mayor upon asummons, under section 25 of the Act, to recover penalties for default by the gompany in complying with the statutory provisions as to keeping its register. It was submitted on behalf of the respondent that an injunction was unnecessary, because the winding-u order operated as a stay of proceedings, and could be produced at the hearing, if any, of the summons.

Ciin-rr, J.,_ said that it appeared on the evidence that the respondent had stated._in'answer to the applicant, that no one but a judge of the Chancery Division could stop his proceeding with the summons. Such a ststeinent._amounted to _a threat of proceeding. He therefore granted a gzrpetual injunction, with costs.—-OoUivsnL, W. R. Slirldim ; Willis Bimd.

iiciroiis, 1lIoDm1-midq Tsatlier; Wright Q Wright.

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Iu_this case the question arose as to the right of a plaintiff who had obtained in a mortgage action a judgment for foreclosure absolute to have an entry of the same made in the Middlesex Register. The plaintiff had_ applied for the insertion in the foreclosure order of a direction to register the order in lliiddlesex, relying on '7 Anne, c. 20, s. 18, which providesthat nojudgment shall bind land in Middlesex until entered up at the Middlesex Registry, and contended that “ judgment " included foreclosure judgments.

1 Ciirrrr, .l., said that it was clear that section 18 referred to common "V !110_i_iey Judgments, and the effect of the enactment was not altered by l-is 2 \ict. c. ll0, s. 18, or by the Judicature Act, 1873, s. 110, the former of those enactments spoke of decrees and orders of courts of equity f'hbY any sum of money was payable, and the enlargement in the fatter enactment of the term judgment so as to include decrees was made or the purposes of the Act which contained such enactment, and for no ah" P_“YP°!@- If he were to accede to the present ap lication he would casting doubt on an infinite number of existing titles. He had compiplnicated with the Middlesex Registrar and ascertained that he would .° Q“ "Y infection which the court might give. He was not, however, lrmflfll ill giving any direction to register such judgments as that which mi? Present applicant soright for, as there was no ground which could J pplort any right to registration. He refused the application.—Ooonszi., - . Booms. Bouciroas, Banmrd 5- U0.


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plglszlsllléd in an action is entitled to receive from a party rightfully in ,0: ,h;1°11i lent from the date of the order or from the date of his demand “mt Billie. The acticn was for foreclosure, and the defendant was the use 8°}? 111 possession and occupation of part of the lands comprised in sh,“ 1, d“‘€tY- The order appointing the receiver directed that the tenants receiverntgm 9}1d_ pay rents to the receiver. After the appointment of Cmny glllllliiiiff obtained judgment for foreclosure nisi. it was ,1 id -Lflaid that in the case of Rnndfialrl v. Rand_/icld (7 \V. R. 651) A pm 1 Y Kllidersley, V.0., that under such an order as the present “Ce tyhu awful possession could not be made to pay occupation rent not :1: ‘On: the date of the receiver‘: demand. The receivership order did as meg *9 Y Provide for the mortgagor being himself in occupation, and ,,cc°rd,n°°€“P5ll°Ii waslawful in the fullest sense of the term, and ,0 me cgnto every principle not to be disturbed unless by exPress order the demmdrlry» the rent payable to the receiver only ran from the date of amount dn -1 He therefore should direct the usual inquiry as to the damn, “B <21‘ occupation rent as from that date, and in default for roiis Eninlro P°Bsession.—-Coi:.\'sizi., Metliold; Graiwcnor Woods. Sonor4_ If ‘ Y S°"i I Slubbs, for Lemon Wilkinson 4- Bridger York;

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right effect of the judgment. _ when the motion was subsequently heard in the presence of the plaintiffs, an order was made that, upon the plaintiffs apologizing for their contempt of court, and giving an undertaking not to continue the acts complained of, no order be maids except that costs_ of the motion be taxed and paid to the defendant. The taxing master disallowed the_costs of the er part» motion, on the ground that they had not been provided for in the order as drawn up by the registrar. The defendant accordingly moved either for a correction of the order in that respect under_the slip order, or for a direction to the taxing master. The_ plaintiffs resisted the motion on the ground that, such costs not having been mentioned at the hearing, they should be treated as costs in the action.

C_i-ii'rn', J., said that the practice as, on inquiry by him, stated by the registrar, was that in cases like the present costs of the subsequent motion included those of the prior ex put: application, although not mentioned expressly at the hearing. The registrar had omitted to include them in the order drawn up, and in this respect the order should be altered, and the_defendant would have the costs of the present motion —-COUNSIL, Deriniur Sturges ; Romer. Q. (7., and John Fuller. Soniciroiis, Hamlin, Grammar, Q Hamlin, for B. (7. Pullmi, Leeds; Erries! Salaimm.

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In this case a question arose as to the relief which could be given to a plaintiff, on a motion for judgment in default of the defendant's appearance to the writ. The action was for the foreclosure of a mortgage. By his writ the plaintiff claimed the ordinary mortgage accounts ; foreclosure in defanlto payment; and the appointment of a receiver. A receiver was appointed soon after the issue of the writ. The mortgagor did not appear to the writ. The plaintiff delivered a statement of claim, by filing it with the proper ofllcer of the court, as provided by rule 10 of order 19, which says that " every pleading or other document required to be delivered to a party, or between parties, shall be delivered, in the manner now in use, to the solicitor of every party who appears by a solicitor, or to the party if be docs not appear by a solicitor, but, if no appearance has been entered for any party, then such pleading or document shall be delivered by being filed with the proper ofllcer." Rule 4 of order 20 provides that “ Wlienever ii statement of claim is delivered the plaintiff may therein alter, modify, or extend his claim without any amendment of the indorsement of the writ." By his statement of claim the plaintiff claimed the relief which he had claimed by the writ, and also personiil payment of the mortgage debt and interest by the mortgagor. The plaintiff gave notice of motion for “ such judgment as upon the statement of claim the court may consider the plaintiif entitled to.” The defendant did not appear on the hearing of the motion.

Noni-ii, J ., refused to make an order for personal payment by the defendant. He said that, the statement of claim not having been delivered to the defendant otherwise than by filing it with the officer of the court, the plaintiff could not have any relief beyond that which he had claimed by his writ. Noii.-i-ii, J ., also asked why the action had not been commenced by originating summons in chambers, instead of by writ, and suggested that the plaintiff ought only to have the colts of a summons. The plaintiffs counsel replied that ii receiver could not have been appointed under an originating summons. In the result, Noiirii, J., did not make any special order as to costs, but he said he must npt be taken as assenting to the view that a receiver could not be appointed under a summoiis.—Coi:.\'ssL, Xaldn". SOLICITORS, Collyer-Bristoic Q Co.

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In this case a question arose as to the proper form of the judgment for the administration of the estate of a deceased mortgagor, obtained at the instance of the mortgagee, whose security was deficient._ The mortgagor by his will made several specific devises of portions of his real estate, and he devised all other his reul estate to trustees, in fee, upon certain trusts. He bequeathed the residue of his personal estate to the same trustees on certain trusts. The testator died in 1864. The action was commenced by the mortgagee of a term of 1,000 years, which the testator held at a

eppercorn rent, against the trustees and executors of the testator's will. The writ claimed payment of the_ mortgage-money, and interest : the ordinary mortgage accounts, and, in default of payment, sale, or foreclosure and possession ; that, in case the proceeds of sale of the mortgaged property should be insuificient to satisfy what should be found due to the plaintiif the deficiency might be made good out of the testator’s estate; and that if the defendants did not admit assets, the real and personal estate ofthe testator might be administered. At the trial of the action judgment was given for the ordinary mortgage accounts, and for the sale of the mortgaged property and the application of the proceeds ofd saile in payment of what should be found due to the plaintiff, and it was ec ared that in case the proceeds of sale should be insufficient to pay the amount found due to the plaintiff, he was entitled to receive satisfaction lqfttlge deficiency out of the assets of the_testat0r; and it was ordered t aéi 3 that case, the ordinary accounts m a creditor s fldfillI£1aBtt1‘fl_§£01‘1msU: ta? should be taken of the testators personal estate, an B I 1 _ personal estate should not be suflloient for the patfiment of his debtgfléivéi inquiries should be made_a_s to his real estatfi an B 1!1¢flflt'1abt!;l;1}?€',; pig it, One of the mqiuriefl directod W116 what W“ °5 .. . - .

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was seised of or entitled to at the time of his death, other than the hereditaments comprised in the plaintifE’s mortgage." And it was ordered that “ a sufflcient part of the testator's real estate, other than as aforesaid, to make good the deficiency of the testator's personal estate, or, if necessary, the whole of such real estate, be sold." The mortgaged property was sold and proved insuflicient, and the personal estate also proved to be insuflicient to pay the testat0r's debts. F., a specific devises of part of the testator’s real estate which was not comprised in the mortgage, on whom the judgment had been served, applied by motion to strike out the inquiries as to the testator's real estate, and so much of the Judgment as directed a sale of the testatcr’s real estate, or any part thereof, other than the hereditaments comprised in the plaintiff's mortgage, or, in the alternative, that there might be added to the judgment an inquiry whether the hereditaments comprised in the mortgage were, at the time of the testator’s death, a sufllcient security for the mortgage debt. F. had been in possession of the real estate devised to him ever since March, 1869

He said that the mortgaged property was of ample value at the time of the testator's death, and that the plaintiff had unreasonably delayed the realization of it until its value had decreased.

Noam, J., said that the inquiry above quoted was in a common form properly applicable to a case where a testatcr had devised his real estate generally to trustees. but it was not applicable to a case where there were specific devises. The inquiry must be altered by adding to it the words “ and other than the real estate specifically devised to F.”—~ COUNSEL, Dundaa Gardiner; .E'u.stucr* Smith. SOLICITORS, W. W. Palmer ,Bmumont, Son, .1 Rigden.

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The question in this case was whether certain real estate, which was vested m trustees on behalf of a parish. was “ charity property " within the meaning of the City of London Parochial Charities Act of 1883. Section 5 of that Act provides that the Charity Commissioners “ shall as soon as may be proceed to inquire into the nature, tenure, and value of all the property and endowments belonging to the charities mentioned in the Digest of Parochial Charities of the City of London, referred to in the 13th report of the Charity Commissioners for England and Wales, every of_them, and every other charity the property or income of which is applicable o_r applied to or for the benefit of any parish or part of a parish within the City of London, or of any inhabitant or inhabitants thereof, and the purposes or trusts for or upon which the same have heretofore been or are now held or enjoyed, and_to which the income thereof has been or is now applied, and shall classify the said property in two schedules," one of which is to contain “ ecclesiastical charity property "

and the other “ general charity property." Section 11 provides that the commissioners shall ro e d l

_ _ p 0 e 0 prepare a scheme or schemes for the future application and management of_ the charity property and endow. ments so classified by them, and section 10 provides that any person or P°_"°"" 311681118 _tl1B$ any property which the commissioners have deterrnined to be_charity property is not charity property, but that he or they is or are entitled to the same free from any charitable trust affecting the same‘: miily apply to the High Court for a declaration that such property 3,23 ° 'mW P'°P°!t!- "_-7'1I\9. 1794. _a piece of land was conveyed

_ e_then rector of the parish and certain other persons (described as parishioners and househo ders of the parish) as trustee

_ s, appointed by ghe vestry on behalf of the parish, for the purpose of building a work

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Inclosure commissioners, appointed by the Christchurch Inclosure Act, 1802 (42 Geo. 3, c. 43), were directed to allot to the lord of the manor, in trust for the occupiers for the time being of certain cottages, part of the waste of the manor for supplying turves for fuel for the use of such cottages. Numerous other allotments were also to be made, and, among others, one to the lord of the manor of a specified value in compensation for his rights in the soil of the waste ground, which should be “awarded by the said commissioners, to be divided and allotted" under the Act. Allotments were also directed to be made for (among others) the owners oi the above mentioned cottages in proportion to their interests, to be in compensation for their rights in the waste, which should be “divided and allotted " as aforesaid. And any parts of the waste which the commissioners should not think proper to divide, allot, and iuclose were to be ring-fenced or continued open and used as therein mentioned. A portion of the allotments made under the Act for the turf common was purchased by the London and South~Western Railway Co. from the lord of the manor, who paid the purchase-money into court in consequence of claims made in respect of it by the owners and occupiers of the cottages. This petition was present by arrangement by the Earl of Malmesbnry, o_n behalf of himself and the other owners, for the purpose of having their rights determined. When the matter first came on it was ordered to stand over in order that the Attorney-General might be served.

STIRLING, J ., in giving judgment, said that the question was one of the construction of the Act. Under the enactment relating to the allotments for a turf common, the soil of such allotments was left vested in the lord, subject to a perpetual trust in favour of the occupiers. The owners too: no benefit from that trust except such indirect one as might result from the higher rent which they might be able to obtain for the cottages in consequence of their rights of turbary. The special allotment made to the lord and directed to be in compensation for his rights in the soil of the waste ground, which should be “awarded to be divided and allotted" under the Act, his lordship held, iipcn the construction of the Act, was not to be in compensation for the lord's rights in respect of the soil of the turf common, but only for his rights in respect of such part of the waste as should be specifically allotted to be held in severalty. The persons, therefore, entitled to the fund in court were the lord and the occupiers, present and future. There would be an inquiry as to the respective interests of the lord and the occupiers, but as to the rights inter se of present and future occupiers his lordship decided nothingHis lordship further held that the rights of the occupiers were private and not public rights, and consequently that the trust in their favour Ia! not charitable.—Couxsai., Robinson, Q.C., and Gust; Hastings, Q..C.,and Kenyon Parker ,' Pearson, Q.C., and Ribton ,' Spammvflutler; Hanming, Q-Q and Pauli, and Ingle Joyce. Souciroas, Nicholl, llamsty, Q 00- .‘ 411°14Crawley, if C0,; Lowvll, Son, Q» Pitfard; Birclram Q 00.; Soliritor to I/II T rcasury.

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Tn this case the question arose whether an aflldavit claiming pI‘lVll6K6 ill respect of certain documents was sufficient, it appearing that one of N19 documents was not entitled to privilege. The plaintiffs sued the defendant for slander of their title to estates in Derbyshire, Sussex, and 6186' where, and the defendant coiinter-claimed to recover possession of thew estates, alleging that by an indenture dated in l8l2 the estates were settled on A. for life, remainder to B. for life, with a general power of lPP°“'t' ment in B., and. subject thereto, with remainder over ; and that the P°‘"' of appointment was duly exercised by B. in favour of C., under wholil the defendantclaimed. The plaintiffs rested their claim on the reinaindet over, alleging that the power of appointment had never been exercised bl B. The defendant had obtained an aifidavit of documents from the P18-ill" tiffs, which was in the usual form, and claimed privilege in respect Of 31° documents specified in the schedule, on the ground that they related wholly to the title of the plaintiffs, and did not support the defends-I1“ case. With regard to one of the documents, however, this prlVl!°8° was only claimed in respect. of a part of the document, the rest be"-'8 sub‘ mitted by the plaintiffs to inspection. North, J ., ordered this d0¢"_"1”“t to be produced, and allowed the defendant to inspect the whole of 1t,°" the ground that it would be impossible to ascertain the p\1rp<_>1l5 9’ the document (which was a conveyance of real estate) without reBd1118 ItH’ It then appeared that this document was not entitled to pl'iVil°8° "7Hi The defendant accordingly applied to North, J ., for inspection of all (:1 the documents in respect of which privilege was claimed, on f-11° Emu“ that, inasmuch as the claim of privilege had been proved to be inawmaw in one particular, it could not be relied on in respect of the other document! named therein. The action having been transferred for trial Kekewwgi J ., and being in the list for hearing, the summons for insp¢¢l=1°11 “mi "quest °1 N "Q11 Jheard. by the former judge. The defendant


_, April 9. I887. THE SOLICITORS’ JOURNAL. 381

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‘This was an application under ord. 65, r. 12,_ for an order that the paintift should be entitled to costsas of an action in the High Court.

he action was brought in the Birmingham District Registry to recover £35 for commission and £11: damages for wrongful dismissal. The defendaigt paid ils. 10d. into court in discharge of the claim for commission, and £...> in discharge of_ the damages for wrongful dismissal. This amount was taken out in satisfaction of_ the whole cause of action. On the taxation of costs in the District Registry, objection was taken by the defendant on the ground that, under the above rule, only costs on the county court scale were recoverable. d ?ANlS'l‘Y, J .—Consideririg the nature of this action, and seeing that the

e endant has been put to little, if any, extra expense, I think that the plaintiff should have his costs according to the scale of the High Court.Souciroiis, Beale Q 00. ; Robiriscn, Preston, if Slaw.

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of lt.hEm_l/l::i_limml of Land Trrissfl-r Board and 0jlice.] (1.) For the purposes

with euprinupal Act a hind Tmnsfer Board shall be established, charged

R _ t 9 duty of fa_cilitating_ the transfer of land,_ consisting of a

begl'"_'89Ii8rRl, a chief examiner of titles, and an assistant registrar, to "PP91M_€d by the Lord Chancellor, who shall have power to fill all

"c_3l1¢l98 In the board.

ofigil 1;he board shall have a principal oflice in London, and branch

b 8 a such places in England as may from time to time be determined

Y Order in P/ouncil.

fl(3.) There shall be annexed, by Orders in Council made from time to

lagiitrl fir? Principal oflice in London and to each of the branch offices, ii

hnd lfrllfi elr district for the purposes of the registration and transfer of

fim -d e _imits of each district shall be such as may be from time to e etermined by Order in Council.


2. Reqirtraliori required la carry legal eitale ] Her Majesty ma

. _ . . y by Order :BhC_*i>(:1t'1<;% from time to time declare, as respects any land transfer ‘hp ml; f at on and after a day_specified in the Order, the registration of mg‘; da sir of land in the district is to be compulsory, and on and after mung Yil Blhlll the duty of every person before selling, settling, or or ‘D ‘Z3 "8 and in the district to be registered as a proprietor of the land, touowinave a proprietor of the land registered on his behalf, and the mute g.£F°'15l°l1§ shall apply to such freehold and leasehold land Act’ “Z161 in the district as is capable of registration under the principal


ls.) gal R :1j¢pri-itor of the land has been registered, s conveyance of

. 9 fee Blmple of the land, if freehold, whether subject or not to §,'§“mb1""1°Bfl. and a conveyance of the whole interest in the land,

an Bllsehold, whether subject or not to incumbrances, and a convey

ele? creating any_svch lease of the land as is described in section

8 egg Of the principal Act, shall, if executed after the day so

8% 1 ed» °P9!‘8l§ Only as a contract, and not convey to a person

beg estate in the land, nor render him capable of taking any hmde rom or execising or creating any legal rights in or over the exec: tug Goiifer on him any equitable right in respect of the land mug 9 Fight of enforcing the contract, and the cost of such a

(M “um yéince shall not be allowed on taxation ; and

mweew PY°Prietor of the land has been registered, a person after thlllg, under the will or on the intestacy of any person dying

mud “Bf sy so specified, to the fee simple of or a life estate in the

the rwh ll'8e_l1old, whether subject or not to incumbrances, or to ‘heme: Bbiiitsrest or a life e¢tate in the land, if leasehold, “king augubgfifiipz not to inciirnbrances, shall not be capable _of

3 R0,, Over the hmdh rom or exercising or creating any legal rights in High 0’g::;t"!;l]'f -';l¢<I made in the High 0ourt.] Where under an order of the the fiucipa1AYctr_eehold or leasehold land capable of registration under llhdpti-qmge, dhtril-B =91d- til‘? °°\1!'t may. and if the land is situate in a Wmpuiwq “mu @111 which the registration of the transfer of land is ' cmthe Purchaser to be registered as proprietor of the


land, with such title as the Court may think just, and for that purpose may, if necessary, cause the title to be examined by one of the conveyancing counsel of the Court.

4. Pr0i‘i8tDM8 as to first re_qi'slmti'an.] (1.) An application for the registration of land under the principal Act may be made by any person capable of conveying the fee simple of, or the whole interest in the lard, whether with or without consent, and whether for his own benefit or not, and whether as owner, mortgagee, or otherwise, and whether subject or not to incumbrauces, and in the case of settled land may be made either by any such person as aforesaid or by the trustees of the settlement.

(2.) Leasehold land may be registered with a possessory title only, and the provisions of the principal Act with respect to the registration of freehold land with ii possessory title shall apply accordingly to leasehold land with the necessary modifications.

5. Provisiorisfor re_qi'.~ili'/ition of -velll1=ril'nirI.] (1 ) Where all application is made for the registration of settled land, the trustees of the settlement shall be registered as the proprietors of the land, but the name of the tenant for life shall be separately entered in the register under an appropriate heading.

('2) The registration of settled land in pursuance of this section shall not confer on the trustees of the settlement as against the tenant for life, and shall not take away from the tenant for life, any power to sell or otherwise deal with the land, and for the purpose of exercising any such power, the tenant for life so entered in the register shall be in the same position as if lie were the registered proprietor of the land, but the purchase-money paid on any transfer of the land, and the money raised by pay charge on the land, shall be paid to the registered proprietors of the


(3.) W'here a tenancy for life of registered land determines, and another person becomes tenant for life thereof, the trustees of the settlement shall cause his name to be entered in the register accordingly.

(4) Where land is settled by will, and there are no trustees of the settlement, the executors proving the will shall be the trustees of the settlement, unless and until trustees of the settlement are appointed.

6. Land to vest in personal represmlalires an derilli.] (1) \Vhere there is vested in any person real estate which, if he died intestate, would, but for this section, pass to his heirs, it shall, on his death, notwithstanding any testamentary disposition, devolve to his personal representatives as if it were a chattel real, and for the purposes of this section the personal representatives for the time being of the deceased shall be deemed his heirs.

(2.) Provided that this section shall not alter any right to the beneficial


interest in real estate, or any liability of real estate for the debts of a deceased person, and subject to the liability for _those debts the personal representatives of the deceased person shall hold his real estate as trustees for the person by law beneficially entitled thereto.

(3 ) The personal representatives of a deceased registered proprietor of registered land or a registered charge shall, without being themselves registered, have the same power of dealing with the land or charge as if they were the registered proprietors thereof, and the principal Act shall apply accordingly.

(4.) This section applies only in cases of death after the commencement of this Act.


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7. Application to Land Irons/'e2' Board for l!6n_/l'I‘I7l¢lt0?l of pissessory or qmzli/red Mia] (1.) Any person registered as proprietor of land with a possessory title or qualified title may apply to the Land Transfer _Board for the confirmation of his title as an absolute title after the expiration of five years from the date of the first publication of the notice in this Act mentioned, unless due cause is shewn iii the meantime why such confirmation should not take place.

(2.) The application for the confirmation of title to land shall _be accompanied by an aflidavit in such form, by such persons, and with such particulars as may be prescribed, and shsll include a statement to the effect that the deponent has made due inquiry into the _title, is not aware of any question or dispute as to the title, except such (if any) as is specified in the aflidavit, and believes that, except as aforesaid, the confirmation of the title will not prejudice any estate, right, or interest of any other person in, to, or over the land. _ _

8. Public notice on receipt ofrlpplicati'0n.] (1.) On the receipt of an application, acoompanied. by the requisite affidavit, and on the deposit by the applicant of such sum as may be directed by the Land Transfer Board for the purpose of covering the expenses of and consequential on the application, the board shall publish notice of the application having been made. (2.) The notice shall be in the prescribed form, and shall contain the prescribed particulars.

(3.) Publication of the notice shall be'made—

(a.) by such advertisements, local notices, and other means as may be prescribed or as the Land Transfer Board may in any particular case direct; and

(6.) by serving in the prescribed manner a copy thereof on every_ person registered as an incumbrancer of the land, or being a caiitioper in respect of the land, and on any other person _who in the opinion of the Land Transfer Board ought to receive notice.

(4.) The publication of the notice shall take place during the mouth

of November next after the application, and during the month of Novem

ber in each of the four years succeeding thefirst publication.

9. Made of skewing rams against corgfirmalmn _qf 11113.] fl-l AUY P9750"

desirous of shewing cause against the confirmation of a title may, at any

time within the period of five years from the date of the first publication



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of notice of the application for confirmation of title, petition the Land Transfer Board in the prescribed manner, and subject to the prescribed conditions as to security of costs and otherwise.

(2.) On receipt of the petition, it shall be the duty of the Land Transfer Board to make inquiry as to the matters in the petition alleged, and_ to satisfy themselves as to the sufficiency of any cause shewn therein against the application.

(3.) All costs incurred by any person presenting any such petition shall be taxed in manner provided for the taxation of costs in or about proceedings for the registration of land, and shall be defrayed by themapplicant for the confirmation of title, unless the Land Transfer Bo are of opinion that the petition was presented without reasonable ground.

10. 00)[fi1'l)1!lffD71 oftitle at expiration of ti'm:.] (L) ¥Vithin the prescribed time after the expiration of the period of five years from the date of the first publication of the notice of application the applicant for confirmation of title may finally apply to the Land Transfer Board to make an entry in the register confirming his title.

(2.) The final application shall be accompanied by an affidavit in such form, by such persons. and with such particulars as may be prescribed, and shall include, with respect to its date, the like statements as are required on a first application. _ _ _ _ _

,3.) Qn_ receipt_o_f the final application, accompanied by the requisite affidavit, if no petition has been presented to shew cause why the entry applied for should not be made, or, if such a. petition has been presented and is held to shew no sufficient cause why the entry should not be made, the Land Transfer Board shall make an entry in the prescribed form in the register confirming the title of the applicant.

(4.) From and after the date of the entry being made, the title so confirmed shall be absolute in the same manner as if the proprietor had been registered with an absolute title on the day on which the first application to confirm his title was made.

(-9.) If by reason of the confirmation under this section of the title of the proprietor of any land any personjs deprived of any estate, right, or interest in the land, the proprietor, his heirs, executors, and administrators shall he liable to pay compensation for the same in like manner as for an in jury to the property of that person.

(6.) In the eveiit of the applicant dying during the period of five years mentioned in this section, his application shall not be deemed to have determined, but the person registered as successor in title of the applicant may, if he thinks fit, proceed with the application as if he were the original applicant.

ll. Powers of board on applimlion for oon_firmali'on of ti"ls.] (1.) For the purpose o_f the execution of their duties iii relation to an application for confirmation of title, the Land {Transfer Board may exercise any powers which they may exercise on an application for the registration of land in respect of which an examination of title is required.

_(2.) Any person aggrieved by a decision of the Land Transfer Board with respect to the confirmation of a title to land, may appeal to the gizgh Court in the prescribed manner and subject to the prescribed cou

i ions.

12. Persons under iizeapariti/.] (1.) A petition shewing cause against the confirmation of a title may be preseiited by any person alleging that he has good cause to believe that the right of some person under incapacity will be prej udiced_ by the title being confirmed.

(2.) The following persons shall for the purposes of this section be deemed to be under incapacity, namely, an infant a lunatic and a married woman, not entitled for her separate use, or under the lllarried Women’s Property Act, 1882, as if she were a fame sole; and this section shall apply to a person as to whom it is not known whether he is alive or dead, and to anyone claiming under or iii succession to any such erson in like manner as if he were under incapacity. P

(3.) Where a person is absent from the United Kingdom in the service of the Crown, any person may present apetition under this section in like manner as if the absent person were under incapacity and where it, appears to the Land Transfer Board that the right of any such absent person may possibly be prejudiced by the confirmation of title they shall take such means for protecting his interests as may be prescribed, or as appears to the Land Transfer Board in any particular case to be proper.

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persons in receipt of the rents and profits of all the lands ad'oining the land in question and that the applicant has, save as specified in the afifidavit, served in the prescribed manner on all those persons the prescribed notice of his intention to make the application ;

that the applicant has given the prescribed notice in relation to any highway, river, common, or other place over which the public or any class of persons exercise or have any rights or that there is no such highway, river, common, or place affected by the application;

that save as specified in the aflidavit, the applicant is hi possession or in receipt of the rents and profits of the whole of the land comprised within the boundaries claimed ; and

(vi.) that the deponent believes that the entry of the description of those

boundaries as conclusive will not prejudice any estate, right, or interest of any other person or class of persons in, to, or over any land, or the exercise of any right by the public.

(b.) The fietition shewing cause against the entry may, in addition to any other legation, allege that the petitioner has good cause to believe that the rights of some class of persons or of the public will be prejudiced by the entry applied for.

(¢.) The Land Transfer Board shall not make the entry unless satisfied that adequate notice has been given to the persons interested, and that the rights of any persons or class of persons or the exercise of any right by the public will not be prejudiced.

(11.) From and after the date of the entry being made, the description of the boundaries as entered in the register shall be conclusive.

(e.) An entry under this section in the register of the description of the boundaries of any land as conclusive shall not deprive the public of any right, and if by reason of any |~uch entry any person or class of persons is deprived of any estate, right, or interest in, to, or over the land, the proprietor of the land at the time of the entry, his heirs, executors, and administrators, shall be liable to pay compensation for the same in like manner as for an injury to the property of that person or class of persons.

( f.) If the Land Transfer Board are of opinion that the boundaries of the land re fcrred to in the application can he conclusively established only for a limited portion, or only subject to certain reservations, whether affecting the whole or part of the boundaries, or that any part of the boundaries, though open to some doubt, is not likely tobe disputedhflle board may enter in the register the exceptions and qualifications subject to which the boundaries are established, and may enter in the register that the description of the boundaries is conclusive, save as specified in the exceptions and qualifications.

(g.) Nothing in this section shall alter the effect of the regi.~itration_of land with a description which is not conclusive as to the boundaries thereof.

14. Eotmdarin bctirmz arijoiniflg pieces of registered land] (1.) On the transfer of part of any registered land, the Land Transfer Board, on the prescribed conditions being complied with, may enter on the register 118 conclusive the boundaries between the part transferred and the part u0l§ transferred.

(2 ) The Land Transfer Board may also, on the application of _t.he registered proprietors of adjoining lands, and on the prescribed conditiollfl being complied with, settle and enter on the register as conclusive the boundaries between those lands or any parts thereof, and for this purpose any person entered as tenant for life of registered land shall be in the same position as if he were the registered proprietor of the land.

(3) If on any transfer of registered laud any doubt arises as to the boundaries or extent of the land, the Land Transfer Board shall, on the application of the transferor or transferee, have jurisdiction to decide tl16 doubt as between them, subject to an appeal to the Court in the prescribed manner and on the prescribed conditions.

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Establishment of Insurance Fund.

15. Power to ostziblish insurance fu11rl.] (1.) There shall be establishgdi in accordance with the scheme in the First Schedule to this Act, an 111surance fund to be raised out of insurance fees payable on registerfid transactions relating to land, and there shall be paid out of the fund in accordance with the provisions of the scheme compensation for any 1°55 sufiered by any person in respect of registered laud which arises from forgery or fraud, or from any error on the part of the Laud Transfer Board or its officers, or from any of the other matters in the scheme melltioned.

(2.) The insurance fund shall be invested in such names and memo! B5 the Treasury may from time to time direct.

_ (3.) If the insurance fund is at any time insufficient to pfli °QmP°““' tion for any such loss, the deficiency shall be charged on and paid out of the consolidated fund of the United Kingdom or the gI0Wi!18 PT°dt‘°° thereof ; but any sum so paid out of the consolidated fund or the 81'°"¥“5 produce thereof shall be repaid out of the money subsequently standing to the credit of the insurance fund. _ 1.

(4 ) Accounts of the fund shall be kept, and be audited all pub l° accounts, in accordance with such regulations as the Treasury mil’ mm time to time make. _

(5.) Rules under this Act may from time to time be made_providinB lg any matters which appear to be necessary or proper for giving effect this section and the scheme in the First Schedule to this Act.

1_6~ A""’""'"'”1¢ 0f 33 Q‘ 39 Vict. r. ST. I8. 95 and 96 as to rectification Of lb’ "¢9"1{"'-] (1-) Where a person satisfies the High Court that he has 116%" deprived of any registered land, by any forgery or fraud, or by any error pf the Land Transfer Board, or any of its oflioers, the Court 1118!, B°°_°'d'


ins as the Court may think equitable under the oircumstallosfli am“ P. PT Payment Of Compensation to that person out of the insert?“ f“"d*

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