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and the custom was admissible in evidence. FRY, LJ, said that the custom admitted in evidence amounted to this: that, in the event of the non-disclosure of the principal's name at a certain time, the broker was to be personally liable. That custom did not contradict the written contract. 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.-COUNSEL, Murphy, Q C., and L. E. Pyke; Finlay, Q.C., and Winch. SOLICITORS, Irvine & Hodges; Philip Thornton.

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, 1845, 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 if the
same were paid in under the Lands Clauses Consolidation Act, 1815, 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

EDEN ». THE WEARDALE COAL AND IRON CO.-C. A. No. 2, money the above-mentioned question of jurisdiction arose. Kay, J., held

31st March.

PRACTICE-THIRD PARTY-INTERROGATORIES" DEFENDANT "-RIGHT OF
THIRD PARTY TO INTEPROGATE PLAINTIFF-JUDICATURE ACT, 1873, s. 100
-R. S. C., 1883, XXXI, 1.

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, and that 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

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 other-nable the court to order the payment of the costs in question.
wise 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
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
for the examination of the opposite parties, or any one or more of such
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 company of an agreement to take a lease from the plaintiff of
a piece of land, 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 June, 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 state-
ment 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 SOLICITORS' JOURNAL, 130). The commissioners then
obtained leave to withdraw the defence which they had delivered; and,
on the 17th 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 far as they might be affected thereby, to adduce evidence, and to
cross-examine the plaintiff's witnesses. On the 10th of January, 1887, the
Court of Appeal (35 W. R. 235, 34 Ch. D. 223, ante, p. 183) gave the plaintiff
leave to deliver interrogatories for the examination of the commissioners, as
being opposite parties" within the meaning of rule 1 of order 31. The
commissioners 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
only a plaintiff or a defendant could deliver interrogatories, the commis-
sioners were not entitled to do so.

THE COURT OF APPEAL (COTTON and LINDLEY, L.JJ.) reversed the decision, holding that the commissioners were entitled to leave to deliver the interrogatories, on the ground that, though the mere fact of their being 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 SOLICITORS' 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, Blakesley; Dunham. SOLICITORS, White, Borrett, & Co.; Crossman, Crossman, & Prichard.

THE COURT OF APPEAL (COTTON, LINDLEY, and LOPES, L.JJ.) affirmed the decision. COTTON, L.J., said that unless the provisions 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. Section 1 of the Lands Clauses Consolidation Act provided that it should apply to all future "undertakings" authorized by Acts which should authorize the purchase of land for such undertakings. That referred to works of a 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 Wade v. The Westminster Palace Hotel Co. (8 C. B. N. S. 276), 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 lordship's opinion, though Sion College was a charitable institution, from which the public might get a 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 4 of 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 of England, in the same manner and to the same account as if the same were paid in under the Lands Clauses Act, would give power to the court to direct the payment of costs of the investment of the money. In his lordship's opinion 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 not be dealt with according to the Lands Clauses Act unless that section applied, for otherwise the costs would have to come out of that fund, and it was contemplated by the Lands Clauses Act that the fund should not be diminished by the payment of costs. But he did not consider this was a sufficient reason for holding that section 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 was most reasonable that those who took the land should pay the costs. LINDLEY and LOPES, L.JJ., concurred.-COUNSEL, Sir Arthur Watson, Q.C., and W. Baker; Everitt, Q.C., and W. D. Rawlins. SOLICITORS, The City Solicitor; Clarke, Rawlins, & Co.

-

CAMPBELL v. CAMPBELL-C. A. No. 2, 6th April.
APPEAL FOR COSTS --COSTS IN DIVORCE ACTION-DISCRETION OF JUDGE -
COSTS OF THIRD COUNSEL-21 & 22 Vicr. c. 108, s. 13-JUDICATURE ACT,
1873, s. 49.

In this case the question arose whether an appeal lies from an order made by the Divorce Division as to costs. Section 13 of the Act 21 & 22 Vict. c. 108 provides for the taxation of the costs in respect of any

Re SION COLLEGE, Ex parte THE CORPORATION OF LONDON- business transacted in the Divorce Court by any one of the registrars C. A. No. 2, 26th March.

LAND TAKEN

UNDER STATUTORY POWERS-RE-INVESTMENT OF PURCHASEMONEY-COSTS-LANDS CLAUSES CONSOLIDATION ACT, 1845, ss. 1, 80. This was an appeal from a decision of Kay, J (ante, p. 61). The question was whether the court had jurisdiction to order the President and Fellows of Sion College to pay the costs of the investment of moneys paid by them to the Corporation of London for the purchase of some land on the Thames Embankment. In the reign of King Charles I. the Rev. Thomas White bequeathed a sum of money to found a college and library for the benefit of the clergy of the City of London, and an almshouse for ten poor men and ten poor women. By charters of King Charles I. and King Charles II. Sion College was incorporated, and powers of acquiring and managing land, and for other purposes, were conferred on the President and Fellows of the institution. Further powers were conferred by an Act of Parliament obtained in the year 1875. The President and Fellows desired to procure a more convenient site for their college and library on the Thames Embankment, on land belonging to the Corporation of London. The Act of 1875 did not authorize such a

belonging to the Principal Registry of the Court of Probate, and that
"the certificate of the registrar of the amount at which such bill is taxed
shall be subject to appeal to the judge of the said court." Section 51 of
the Act 20 & 21 Vict. c. 85 had provided that "there shall be no appeal
on the subject of costs only." Section 49 of the Judicature Act, 1873,
provides: "No order
as to costs only, which by law are left to
the discretion of the court, shall be subject to appeal, except by leave of
the court or judge making such order." In the present case an order was
made at the trial of a divorce action that the husband should pay the
costs of the wife. The wife had been represented by three counsel. The
case was a complicated one; there were four co-respondents; and the
trial occupied a number of days. Hannen, P., directed the registrar to
disallow the wife the costs of a third counsel. The wife appealed, and
the preliminary objection was taken that there was no right of appeal.

THE COURT OF APPEAL (COTTON, LINDLEY, and LOPES, L.JJ) dismissed the appeal. COTTON, L J., said that he felt considerable doubt whether, under section 13 of the Act of 1858, the decision of the judge was not final, and also whether section 49 of the Judicature Act, 1873, applied. In Robertson v. Robertson (6 P. D. 119, 25 SOLICITORS' JOURNAL, 711), in

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, a judge of great experience had decided that, under the circumstances of the case, it was not right that the husband should be 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 interfere. The court never interfered with the discretion of a taxing master on a question of amount. LINDLEY and LOPES, L JJ., concurred.--COUNSEL, Sir C. Russell, Q.C., C. Matthews, and Scrutton; Finlay, Q.C., Lockwood, Q.C., Searle, and C. N. Crosse.

Re ALBERT PALACE ASSOCIATION-Chitty, J., 1st April. COMPANIES ACT, 1862, s. 87-WINDING UP INJUNCTION-RESTRAINING RECOVERY OF PENALTIES UNDER SECTION 25.

In this case (see ante, p. 363) a motion was made by the official 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 a summons, under section 25 of the Act, to recover penalties for default by the company 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-up order operated as a stay of proceedings, and could be produced at the hearing, if any, of the

summons.

CHITTY, 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 statement.amounted to a threat of proceeding. He therefore granted a perpetual injunction, with costs.-COUNSEL, W. R. Sheldon; Willis Bund. SOLICITORS, McDiarmid & Teather; Wright & Wright.

BURROWS v. HOLLEY-Chitty, J., 31st March. REGISTRATION IN MIDDLESEX-REGISTRATION OF JUDGMENT FOR FORECLOSURE ABSOLUTE-7 ANNE, c. 20. s. 18-1 & 2 VICT. c. 110, s. 18. In 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 Middlesex, relying on 7 Anne, c. 20, s. 18, which provides that no judgment shall bind land in Middlesex until entered up at the Middlesex Registry, and contended that "judgment" included foreclosure judgments.

CHITTY, J., said that it was clear that section 18 referred to common law money judgments, and the effect of the enactment was not altered by 1 & 2 Vict. c. 110, s. 18, or by the Judicature Act, 1873, s. 110, the former of those enactments spoke of decrees and orders of courts of equity whereby any sum of money was payable, and the enlargement in the latter enactment of the term judgment so as to include decrees was made for the purposes of the Act which contained such enactment, and for no other purpose. If he were to accede to the present application he would be casting doubt on an infinite number of existing titles. He had communicated with the Middlesex Registrar and ascertained that he would follow any direction which the court might give. He was not, however, justified in giving any direction to register such judgments as that which the present applicant sought for, as there was no ground which could support any right to registration. He refused the application.-COUNSEL, J. H. Boome. SOLICITORS, Barnard & Co.

March.

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 made except that costs of the motion be taxed and paid to the defendant. The taxing master disallowed the costs of the ex parte 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.

CHITTY, 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 parte 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-COUNSEL, SOLICITORS, Hamlin, Decimus Sturges; Romer, Q. C., and John Cutler. Grammer, & Hamlin, for B. C. Pullan, Leeds; Ernest Salaman.

GEE v. BELL-North, J., 2nd April. MORTGAGE-FORECLOSURE-WRIT OR SUMMONS-COSTS-APPOINTMENT OF RECEIVER-JUDGMENT IN DEFAULT OF APPEARANCE TO WRIT-EXTENT OF RELIEF-R. S. C., 1883, XIX., 10; XX., 4; LV., 5A. (DECEMeer, 1885).

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 default of 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 officer 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 he does not appear by a solicitor, but, if no appearance Las been entered for any party, then such pleading or document shall be delivered by being filed with the proper officer." Rule 4 of order 20 provides that "Whenever a 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 personal 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 plaintiff entitled to." The defendant did not appear on the hearing of the motion.

NORTH, 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. NORTH, 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 costs of a summons. The plaintiff's counsel replied that a receiver could not have been appointed under an originating summons. In the result, NORTH, J., did not make any special order as to costs, but he said he must not be taken as assenting to the view that a receiver could not be appointed under a summons.-COUNSEL, Nalder. SOLICITORS, Collyer-Bristow & Co.

UNWIN v. BUCK-North, J., 4th April. ·

THE YORKSHIRE RAILWAY CO. v. MULLAN--Chitty, J., 31st
PRACTICE-RECEIVER-OCCUPATION RENT-PARTY LAWFULLY IN POSSESSION. MORTGAGE-FORECLOSURE-ADMINISTRATION OF ESTATE OF DECEASED MORT-

In this case the question arose whether a receiver of rents and profits appointed in an action is entitled to receive from a party rightfully in possession, rent from the date of the order or from the date of his demand for the same. The action was for foreclosure, and the defendant was mortgagee in possession and occupation of part of the lands comprised in the security. The order appointing the receiver directed that the tenants should attorn and pay rents to the receiver. After the appointment of receiver the plaintiff obtained judgment for foreclosure nisi.

CHITTY, J., said that in the case of Rand field v. Randfield (7 W. R. 651) it was held by Kindersley, V.C., that under such an order as the present a party in lawful possession could not be made to pay occupation rent except from the date of the receiver's demand. The receivership order did not expressly provide for the mortgagor being himself in occupation, and as such occupation was lawful in the fullest sense of the term, and according to every principle not to be disturbed unless by express order to the contrary, the rent payable to the receiver only ran from the date of the demand. He therefore should direct the usual inquiry as to the amount due for occupation rent as from that date, and in default for delivery up of possession.-COUNSEL, Methold; Grosvenor Woods. SOLICI TORS, Emmet, Son, & Stubbs, for Leeman, Wilkinson, & Badger, York;

A. R. Oldman.

BLAKEY v. HALL-Chitty, J., 1st April. PRACTICE-COSTS-EX PARTE INJUNCTION-R. S. C., 1883, XXVIII., 11. In this case the defendant had obtained, on an ex parte motion, an interim injunction restraining the plaintiffs from publishing extracts of a judg. ment of Chitty, J., on the ground that such extracts did not shew the

GAGOR-REAL ESTATE SPECIFICALLY DEVISED-FORM OF JUDGMENT. 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 real estate to trustees, in fee, upon certain trusts. certain trusts. The testator died in 1864. The action was commenced

He bequeathed the residue of his personal estate to the same trustees on by the mortgagee of a term of 1,000 years, which the testator held at a peppercorn 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 insufficient to satisfy what should be found due to the plaintiff, 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 of the 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 of sale in payment of what should be found due to the plaintiff, and it was declared 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 of the deficiency out of the assets of the testator; and it was ordered that, in that case, the ordinary accounts in a creditor's administration action should be taken of the testator's personal estate, and that, in case the personal estate should not be sufficient for the payment of his debts, &c., inquiries should be made as to his real estate and the incumbrances affecting it. One of the inquiries directed was "what real estate the testator

was seised of or entitled to at the time of his death, other than the hereditaments comprised in the plaintiff's mortgage." And it was ordered that "a sufficient 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 insufficient, and the personal estate also proved to be insufficient to pay the testator's debts. F., a specific devisee 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 testator'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 sufficient 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. NORTH, J., said that the inquiry above quoted was in a common form properly applicable to a case where a testater 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, Dundas Gardiner; Eustace Smith. SOLICITORS, W. W. Palmer; Beaumont, Son, & Rigden.

purposes. There were many authorities, such as Attorney-General v. Eastlake | (11 Hare, 205), which shewed that the purpose to which property was applied, not the source from which it was derived, was the test to deter. mine whether it was charity property. Re St. Bride's, Fleet-street (W. N., 1877, pp. 95, 149), was precisely in point.-COUNSEL, Everitt, QC., and E. Ford; Sir H. Davey, Q.C., and Vaughan Hawkins. SOLICITORS, Clapham & Fitch; Clabon.

Re THE CHRISTCHURCH INCLOSURE ACT-Stirling, J., 30th October; 8th, 13th, and 27th November; 4th and 11th December; 28th March.

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Re ST. BOTOLPH WITHOUT BISHOPSGATE PARISH ESTATE- portion of the allotments made under the Act for the turf common was North, J., 26th March.

"CHARITY PROPERTY"-JURISDICTION OF CHARITY COMMISSIONERSPROPERTY VESTED IN TRUSTEES FOr the Use and Benefit of a PARISH CITY OF LONDON PAROCHIAL CHARITIES ACT, 1883 (46 & 47 VICT. c. 36), ss. 5, 10, 11.

The question in this case was whether certain real estate, which was vested in trustees on behalf of a parish, was 66 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, and every of them, and every other charity the property or income of which is applicable or 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 proceed to prepare a scheme or schemes for the future application and management of the charity property and endowments so classified by them, and section 10 provides that any person or persons alleging that any property which the commissioners have determined 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, may apply to the High Court for a declaration that such property is not charity property. In June, 1794, a piece of land was conveyed to the then rector of the parish and certain other persons (described as parishioners and householders of the parish) as trustees, appointed by the vestry on behalf of the parish, for the purpose of building a workhouse for the poor of the parish. By an Act passed in 1795 the persons named as trustees in the deed of 1794 were appointed trustees for the purposes of the Act, and power was given to the vestry to appoint other trustees in the case of vacancies by death or otherwise, and the trustees were authorized to raise a sum not exceeding £10,000 upon annuities for lives or terms of years, and to apply the same in the purchase of the piece of ground, and for and towards the building of a workhouse and such other buildings thereon as should be necessary for the relief and employment of the poor of the parish and the furnishing of the workhouse, and it was enacted that the annuities so to be purchased should be charged on the rates to be made on the parishioners under the Act, and that the above conveyance should be an effectual conveyance to the trustees "for the use and benefit of the parish," and the same was thereby ratified and confirmed. After this a workhouse was erected on part of the land. In 1837 the East London Poor Law Union was formed, and the workhouse was no longer required for the parish. The building was afterwards let, and the rent was applied for the use and benefit of the parish in aid of the poor rates. In 1865 the property was taken by the Great Eastern Railway Co., and the purchase-money was laid out in the purchase of other property, the income of which was paid over by the parish trustees to the church wardens and overseers of the poor of the parish and applied by them in aid of the poor rate. After the passing of the Act of 1883 the Charity Commissioners published a statement under the Act, in which they included the property as a "general charity" of the parish, stating that the application of it was "for parish purposes analogous to poor rates." This petition was presented by the trustees, and the churchwardens and overseers of the poor of the parish, asking the court to declare that the property was not "charity property." NORTH, J., held that the property was "charity property" within the meaning of the Act of 1883. The trust declared by the Act of 1795 "for the use and benefit of the parish" was in his opinion a trust for charitable

INCLOSURE ACT-CONSTRUCTION-ALLOTMENTS-TURF COMMON-RIGHTS OF LORD OF THE MANOR AND OCCUPIERS-CHARITABLE Trust. 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 of 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 inclose were to be ring-fenced or continued open and used as therein mentioned. A 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 Malmesbury, on 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 took 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, upon 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 nothing. His lordship further held that the rights of the occupiers were private and not public rights, and consequently that the trust in their favour was Kenyon Parker; Pearson, Q.C., and Ribton; Spencer Butler; Hemming, Q.C. not charitable.-COUNSEL, Robinson, Q.C., and Cust; Hastings, Q.C., and and Pauli, and Ingle Joyce. SOLICITORS, Nicholl, Manisty, & Co.; Arnold, Crawley, & Co.; Lowell, Son, & Pitford; Bircham & Co.; Solicitor to the

Treasury.

LESLIE v. CAVE-Kekewich, J., 31st March. PRACTICE-PRODUCTION OF DOCUMENTS-PRIVILEGE-SUFFICIENCY OF

AFFIDAVIT.

In this case the question arose whether an affidavit claiming privilege in respect of certain documents was sufficient, it appearing that one of the documents was not entitled to privilege. The plaintiffs sued the defendant for slander of their title to estates in Derbyshire, Sussex, and elsewhere, and the defendant counter-claimed to recover possession of these estates, alleging that by an indenture dated in 1812 the estates were settled on A. for life, remainder to B. for life, with a general power of appointment in B., and, subject thereto, with remainder over; and that the power of appointment was duly exercised by B. in favour of C., under whom the defendant claimed. The plaintiffs rested their claim on the remainder over, alleging that the power of appointment had never been exercised by B. The defendant had obtained an affidavit of documents from the plaintiffs, which was in the usual form, and claimed privilege in respect of the documents specified in the schedule, on the ground that they related wholly to the title of the plaintiffs, and did not support the defendant's case. With regard to one of the documents, however, this privilege was only claimed in respect of a part of the document, the rest being submitted by the plaintiffs to inspection. North, J., ordered this document to be produced, and allowed the defendant to inspect the whole of it, on the ground that it would be impossible to ascertain the purport of the document (which was a conveyance of real estate) without reading it all. It then appeared that this document was not entitled to privilege at all. The defendant accordingly applied to North, J., for inspection of all of the documents in respect of which privilege was claimed, on the ground that, inasmuch as the claim of privilege had been proved to be inaccurate in one particular, it could not be relied on in respect of the other documents named therein. The action having been transferred for trial to Kekewich, J., and being in the list for hearing, the summons for inspection was, by request of North, J., heard by the former judge. The defendant relied

upon Ponsonby v. Hartley (27 SOLICITORS' JOURNAL, 314, W. N. 1883, 44) as shewing that the privilege was gone, inasmuch as it had been falsely claimed with respect to one document.

KEKEWICH, J., said that his own view of the practice of the court did not agree with the decision in Ponsonby v. Hartley as reported, and he must decline to follow it. He therefore adjourned the hearing of the action till the 26th of April to enable the defendant (if so minded) to apply to the Court of Appeal. - COUNSEL, Warmington, Q C., and A. Brown; Barber, Q.C., and Ingpen. SOLICITORS, Jackson, Wyman, & Smart; Arnold & Co.

JUDGES' CHAMBERS.

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 convey. ancing counsel of the Court.

4. Provisions as to first registration.] (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 incumbrances, 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 a possessory title shall apply accordingly to leasehold land with the necessary modifications.

5. Provisions for registration of settled land.] (1) Where an 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 appro

ELKINGTON v. FRAZER-Manisty, J., 23rd March. COSTS-RECOVERY OF LESS THAN £50-ORD. 65, r. 12. This was an application under ord. 65, r. 12, for an order that the plaintiff should be entitled to costs as of an action in the High Court. The action was brought in the Birmingham District Registry to recover £35 for commission and £75 damages for wrongful dismissal. The defend-priate heading. ant paid 9s. 10d. into court in discharge of the claim for commission, and £25 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.

(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 he were the registered proprietor of the land, but the purchase-money paid on any transfer of the land, and the money raised by any charge on the land, shall be paid to the registered proprietors of the (3.) Where 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.

MANISTY, J.-Considering the nature of this action, and seeing that the defendant 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.-land. SOLICITORS, Beale & Co.; Robinson, Preston, & Stow.

PENDING LEGISLATION.

THE LAND TRANSFER BILL.

(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 representatives on death.] (1) Where there is vested in any person real estate which, if he died intestate, would, but

THE following are the chief provisions of this Bill rolating to registra- for this section, pass to his heirs, it shall, on his death, notwithstand

tion:

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(2.) The board shall have a principal office in London, and branch offices at such places in England as may from time to time be determined by Order in Council. (3.) There shall be annexed, by Orders in Council made from time to time, to the principal office in London and to each of the branch offices, a land transfer district for the purposes of the registration and transfer of land. The limits of each district shall be such as may be from time to time determined by Order in Council.

PART II.

COMPULSORY REGISTRATION.

2. Registration required to carry legal estate.] Her Majesty may by Order in Council from time to time declare, as respects any land transfer district, that on and after a day specified in the Order, the registration of the transfer of land in the district is to be compulsory, and on and after that day it shall be the duty of every person before selling, settling, or mortgaging land in the district to be registered as a proprietor of the land, or to have a proprietor of the land registered on his behalf, and the following provisions shall apply to such freehold and leasehold land ituate within the district as is capable of registration under the principal Act, namely

(4.) until a proprietor of the land has been registered, a conveyance of the fee simple of the land, if freehold, whether subject or not to incumbrances, and a conveyance of the whole interest in the land, if leasehold, whether subject or not to incumbrances, and a conveyance creating any such lease of the land as is described in section eleven of the principal Act, shall, if executed after the day so specified, operate only as a contract, and not convey to a person any legal estate in the land, nor render him capable of taking any benefit from or execising or creating any legal rights in or over the land, nor confer on him any equitable right in respect of the land except the right of enforcing the contract, and the cost of such a conveyance shall not be allowed on taxation; and

(b.) until a proprietor of the land has been registered, a person succeeding, under the will or on the intestacy of any person dying after the day so specified, to the fee simple of or a life estate in the land, if freehold, whether subject or not to incumbrances, or to the whole interest or a life estate in the land, if leasehold, whether subject or not to incumbrances, shall not be capable of taking any benefit from or exercising or creating any legal rights in or over the land.

3. Registry of sales made in the High Court.] Where under an order of the High Court any freehold or leasehold land capable of registration under the principal Act is sold, the court may, and if the land is situate in a land transfer district in which the registration of the transfer of land is compulsory, shall cause the purchaser to be registered as proprietor of the

ing 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.

of a

interest in real estate, or any liability of real estate for the debts (2.) Provided that this section shall not alter any right to the beneficial 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. registered land or a registered charge shall, without being themselves (3) The personal representatives of a deceased registered proprietor of 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. of this Act. (4.) This section applies only in cases of death after the commencement

PART III.

EXTENSION OF LAND TRANSFER ACT.
Confirmation of possessory or qualified Title.

7. Application to Land Transfer Board for confirmation of possessory or qualified title.] (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 in the meantime why such confirma. tion should not take place.

(2.) The application for the confirmation of title to land shall be accompanied by an affidavit in such form, by such persons, and with such particulars as may be prescribed, and shall 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 affidavit, 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 of application.] (1.) On the receipt of an application, accompanied 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

(b.) by serving in the prescribed manner a copy thereof on every person registered as an incumbrancer of the land, or being a cautioner 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 month of November next after the application, and during the month of November in each of the four years succeeding the first publication.

9. Mode of shewing cause against confirmation of title.] 1.) Any person 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

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 the applicant for the confirmation of title, unless the Land Transfer Board are of opinion that the petition was presented without reasonable ground.

10. Confirmation of title at expiration of time.] (1.) Within 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.) On receipt of 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 ehall 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.

(5.) If by reason of the confirmation under this section of the title of the proprietor of any land any person is deprived of any estate, right, or interest in the land, the proprietor, 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.

(6.) In the event 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.

11. Powers of board on application for confirmation of tile.] (1.) For the purpose of the execution of their duties in 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 High Court in the prescribed manner and subject to the prescribed conditions.

12. Persons under incapacity.] (1.) A petition shewing cause against the confirmation of a title may be presented by any person alleging that he has good cause to believe that the right of some person under incapacity will be prejudiced 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 Married Women's Property Act, 1882, as if she were a feme 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 in succession to any such person, in like manner as if he were under incapacity.

(3.) Where a person is absent from the United Kingdom in the service of the Crown, any person may present a petition 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.

Boundaries.

13. Application for entry of conclusiveness of boundaries] (1.) If the registered proprietor of any registered land desires that the description of the land in the register shall be conclusive as to the boundaries thereof he may apply to the Land Transfer Board to make in the register an entry to that effect after the expiration of five years from the date of the first publication of notice as in this Act mentioned, unless due cause is shewn in the meantime why the entry should not be made.

(2.) The foregoing provisions of this Act with respect to the proceedings on an application for confirmation of title shall apply to the application for an entry under this section in like manner as if they were re-enacted and in terms made applicable thereto, but subject to the following modifications:

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(a.). The affidavit accompanying the application shall include statements to the effect

(i.) that the deponent has made due inquiry into the boundaries in question;

(ii) that the boundaries claimed are set forth in the prescribed ordnance map either as to the whole or as to any part thereof, and, so far as they are not so set forth, are delineated in the accompany ing map; (iii.) that the persons named are, to the best of the applicant's knowledge and belief, and for the reasons specified, the occupiers and

persons in receipt of the rents and profits of all the lands adjoining the land in question and that the applicant has, save as specified in the affidavit, served in the prescribed manner on all those persons the prescribed notice of his intention to make the application; (iv.) 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;

(v.) that save as specified in the affidavit, the applicant is in 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 petition shewing cause against the entry may, in addition to any other allegation, 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.

(c.) 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.

(d.) 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 such 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 referred to in the application can be 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 to be disputed, the 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 registration of land with a description which is not conclusive as to the boundaries

thereof.

14. Boundaries between adjoining 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 as conclusive the boundaries between the part transferred and the part not transferred.

(2) The Land Transfer Board may also, on the application of the registered proprietors of adjoining lands, and on the prescribed conditions 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 land 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 the doubt as between them, subject to an appeal to the Court in the pres cribed manner and on the prescribed conditions.

Establishment of Insurance Fund.

15. Power to establish insurance fund.] (1.) There shall be established, in accordance with the scheme in the First Schedule to this Act, an insurance fuud to be raised out of insurance fees payable on registered transactions relating to land, and there shall be paid out of the fund in accordance with the provisions of the scheme compensation for any loss suffered by any person in respect of registered land which arises from Board or its officers, or from any of the other matters in the scheme menforgery or fraud, or from any error on the part of the Land Transfer

tioned.

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

(3.) If the insurance fund is at any time insufficient to pay compensation for any such loss, the deficiency shall be charged on and paid out of the consolidated fund of the United Kingdom or the growing produce thereof; but any sum so paid out of the consolidated fund or the growing produce thereof shall be repaid out of the money subsequently standing to the credit of the insurance fund.

(4) Accounts of the fund shall be kept, and be audited as public accounts, in accordance with such regulations as the Treasury may from time to time make.

(5.) Rules under this Act may from time to time be made providing for any matters which appear to be necessary or proper for giving effect to

this section and the scheme in the First Schedule to this Act.

16. Amendment of 38 & 39 Vict. c. 87. ss. 95 and 96 as to rectification of the register.] (1.) Where a person satisfies the High Court that he has been deprived of any registered land, by any forgery or fraud, or by any error of the Land Transfer Board, or any of its officers, the Court may, according as the Court may think equitable under the circumstances, either order payment of compensation to that person out of the insurance fund,

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