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and the custom was admissible in evidence. Fry, L.J., said that the purchase, and the President and Fellows accordingly applied for and custom admitted in evidence amounted to this : that, in the event of the obtained the Sion College Act, 1884, which empowered the corporation non-disclosure of the principal's name at a certain time, the broker was to sell and the college to buy the land in question. The Act of 1884 did to be personally liable. That custom did not contradict the written con not in express terms incorporate the Lands Clauses Act, 1845, but section tract. The contract said that the owner should be liable. The custom 4 provided that “all purchase-money to be paid by the President and said that the broker should also be liable. The two were not inconsistent. Fellows of Sion College for the said piece of land shall be paid into the No doubt they would be inconsistent if the custom said that the broker Bank of England in the same manner and to the same account as if the alone should be liable.--COUNSEL, Murphy, Q.C., and L. E. Pyke; Finlay, same were paid in under the Lands Clauses Consolidation Act, 1845, and Q.C., and Winch. SOLICITORS, Irvine $ Hodges; Philip Thornton.
other Acts amending the same, and shall be dealt with accordingly."
The purchase-money had been, in pursuance of this section, paid into the EDEN v. THE WEARDALE COAL AND IRON CO.-C. A. No. 2, bank bythe college, and upon an application for the investment of this 31st March.
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 PRACTICE-THIRD PARTY-INTERROGATORIES—" DefendANT "-Right of costs of investment. He was of opinion that the college was not an
THIRD PARTY TO INTEPROGATE PLAINTIFF-JUDICATURE Act, 1873, s. 100 undertaking or work of a public nature within the meaning of section 1 -R. 8. C., 1883, XXXI , 1.
of the Lands Clauses Consolidation Act, and that that Act was not, therefore, This was an appeal from a decision of Kay, J. (ante, p. 302, 35 W. R. incorporated with the special Act of 1884, unless the latter Act contained an 357), the question being whether a “third party" 'was entitled to deliver express incorporation of it, and he was of opinion that section 4 did not interrogatories for the examination of the plaintiff. Rule 1 of order 31 incorporate section 80 of the Lands Clauses Consolidation Act so as to provides that “In any action where relief by way of damages or other. enable 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 THE COURT OF APPEAL (COTTON, LINDLEY, and LOPES, L.JJ.) affirmed the at any time after delivering his statement of claim, and a defendant may decision. COTTON, L.J., said that unless the provisions of the Lands at or after the time of delivering his defence, without any order for that Clauses Consolidation Act were incorporated with the Act of 1884 the purpose, and, in every other cause or matter, the plaintiff or defendant court had nu jurisdiction to order the President and Fellows of Sion may, by leave of the court or a judge, deliver interrogatories in writing College to pay these costs. The question was whether section 80 of the for the examination of the opposite parties, or any one or more of such Lands Clauses Consolidation Act, 1845, applied. It was said that section 1 of parties.", Section 100 of the Judicature' Act, 1873, provides that the the Lands Clauses Act introduced that Act into the Act of 1881.
That Act, word "defendant” shall include "every person served with any writ of however, was not like an Act authorizing a public undertaking, it was passed summons or process, or served with notice of, or entitled to attend, any merely to enable the corporation to make a good title to part of the land proceedings." The action was brought for the specific performance by the which it was doubtful whether they had power to sell. Section 1 of the defendant company of an agreement to take a lease from the plaintiff of Lands Clauses Consolidation Act provided that it should apply to all a piece of land, with the coal thereunder. The company commenced to future “undertakings” authorized by Acts which should authorize the work the coal, but they were served by the Ecclesiastical Commissioners purchase of land for such undertakings. That referred to works of a with notice that they, as lords of the manor, claimed to be the owners of public nature, and independently of authority he should have thought the coal. On this ground the company refused to accept a lease from the that Sion College was not an undertaking of the kind intended by the plaintiff. The company served notice on the commissioners claiming Act. But Wade v. The Westminster Palace Hotel Co. (8 C. B. N. S. 276), indemnity from them, in the event of the plaintiff establishing his claim. seemed exactly in point. In that case an Act was passed to enable On the 30th of June, 1884, on the application of the defendants, an order the Westminster Palace Hotel Co. to acquire land, and it was held that the was made giving leave to the Ecclesiastical Commissioners to deliver a Lands Clauses Consolidation Act was not incorporated. In his lord ehip's counter-claim.
On the 30th of July, 1884, on the application of the opinion, though Sion College was a charitable institution, from which the commissioners, an order was made giving them leave to deliver a state public might get a benefit, it was not a public undertaking such as was ment of defence with their counter-claim. On the 8th of December, 1884, contemplated by the Lands Clauses Consolidation Act. In the next the Court of Appeal ordered the counter-claim which the commissioners place it was argued that section 4 of the Sion College Act, 1884, incorporated had delivered to be struck out, on the ground that the commissioners were the provisions of section 80 of the Lands Clauses Act. It was said that not “defendants" within the meaning of rule 3 of order 19 (33 W. R. section 80 was one of a set of clauses dealing with purchase-money, the 241, 28 Ch. D. 333, 29 SOLICITORS' JOURNAL, 130). The commissioners then whole of which were applicable when the purchase-money was to be dealt obtained leave to withdraw the defence which they had delivered; and, with as purchase-money under that Act. But it could not bu on the 17th of March, 1885, an order was made, on their application, that properly said that a direction to pay purchase-money into the Bank of the question between them and the defendants should be tried after the England, in the same manner and to the same account as if the same were trial of the action, and that, pursuant to rule 53 of order 16, they, as third paid in under the Lands Clauses Act, would give power to the court to direct parties, should be at liberty to appear at the trial and oppose the plaintiff's the payment of costs of the investment of the money. In his lordship’s opinion claim, so far as they might be affected thereby, to adduce evidence, and to section 80 did not come within the reasonable meaning of the words. Then cross-examine the plaintiff's witnesses. On the 10th of January, 1887, tie it was said that section 80 must apply, because the money paid in could not b? Court of Appeal (35 W. R. 235, 34 Ch. D. 223, ante, p. 183) gave the plaintiff dealt with according to the Lands Clauses Act unless that section leave to deliver interrogatories for the examination of the commissioners, as applied, for otherwise the costs would have to come out of that fund, and being, opposite parties” within the meaving of rule 1 of order 31. The it was contemplated by the Lands Clauses Act that the fund should not commissioners then applied for leave to deliver interrogatories for the
be diminished by the payment of costs. But he did not consider this was a examination of the plaintiff. Kay, J., refused the application, on the sufficient reason for holding that section 80 applied. It was unfortunate ground that the Court of Appeal had, in ordering the counter-claim to be that there was no such direction as is contained in that section, because struck out, decided that the commissioners were not defendants ; and, as when land was taken from the owners for a particular purpose, it was only a plaintiff or a defendant could deliver interrogatories, the commis most reasonable that those who took the land should pay the costs. sioners were not entitled to do so.
LINDLEY and Lopes, L.JI., concurred. — Counsel, Sir Arthur Watson, The Court of Appeal (Cotton and LINDLEY, L.JJ.) reversed the Q.C., and W. Baker ; ' Everitt, Q.C., and W. D. Rawlins. Solicitors, The decision, holding that the commissioners were entitled to leave to deliver City Solicitor ; Clarke, Rawlins, & Co. 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
CAMPBELL v. CAMPBELL-O. A. No. 2, 6th April. present case (33 W. R. 241, 28 Ch. D. 333, 29 Solicitors' JOURNAL, 130), APPEAL FOR_Costs --Costs in Divorce Action-Discretion of JUDGEyet, by the order of the 17th of March, 1885, the commissioners were
RD Counsel-21 & 22 Vict. c. 108, s. 13-JUDICATURE Act, placed in the position of " defendants,” and came within the definition of
1873, s. 49. that word in section 100.—Counsel, Blakesley; Dunham. SOLICITORS, White, Borrett, & Co.; Crossman, Crossman, f Prichard.
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.
belonging to the Principal Registry of the Court of Probate, and that LAND TAKEN UNDER STATUTORY Powers-RE-INVESTMENT OF PURCHASE
"the certificate of the registrar of the amount at which such bill is taxed Money-Costs—LANDS Clauses CONSOLIDATION Act, 1845, ss. 1, 80.
shall be subject to appeal to the judge of the said court.” Section 51 of This was an appeal from a decision of Kay, J (ante, p. 61). The
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, and Fellows of Sion College to pay the costs of the investment of the discretion of the court, shall be subject to appeal, except by learer os
as to costs only, which by law are left to moneys paid by them to the Corporation of London for the purchase of the court or judge making such order." In the present case an order the the Rev. Thomas White bequeathed a sum of money to found a college costs of the wife. The wife had been represented by three counsel, The almshouse for ten poor men and ten poor womenty By Charters' of King trial occupied a number of days. Hannen, P., directed the register and Charles 1. and King Charles Ii. Sion College was incorporated, and powers dieallow the wife the costs oaya third-counsel. The wife appealed, and of acquiring and managing land, and for other purposes, were conferred on the President and Fellows of the institution.
the preliminary objection was taken that there was no right of appeal.
Further powers were sident and Fellows desired to procure ne more con venient site for their under section 13 of the Act of the 5s, the decision of the judge was Lied.
the appeal. Cotton, L J., said that he felt considerable doubt whether, college and library on the Thames Embankment, monenland belonging to anal, and talso Whether section 1958: the Judicature Act. 1873, app, in the Corporation of London. The Act of 1875 did not authorize such a In Robertson v. Robertson (6 P. D. 119, 25 Solicitons" JOURNAL, 741), in
which case the Court of Appeal varied an order of the Divorce Division as right effect of the judgment. When the motion was subsequently heard to costs, no objection was raised to the right of appeal. His lordship in the presence of the plaintiffs, an order was made that, upon the would not now decide whether an appeal lay. But, assuming that it did, plaintiffs apologizing for their contempt of court, and giving an undera judge of great experience had decided that, under the circumstances of taking not to continue the acts complained of, no order be made except the case, it was not right that the husband should be burdened with the that costs of the motion be taxed and paid to the defendant. The taxing costs of a third counsel. Hannen, P., had expressly said that he did not master disallowed the costs of the ea parte motion, on the ground that intend to lay down any general rule. He had merely exercised his discre- they had not been provided for in the order as drawn up by the registrar. tion on the facts of the particular case, and the Court of Appeal ought The defendant accordingly moved either for a correction of the order in not to interfere. The court never interfered with the discretion of a that respect under the slip order, or for a direction to the taxing master. taxing master on a question of amount. LINDLEY and LOPES, LJJ., | The plaintiffs resisted the motion on the ground that, such costs not concurred. --Counsel, Sir C. Russell, Q.C., C. Matthews, and Scrutton ; havivg been mentioned at the hearing, they should be treated as costs in Finlay, Q.O., Lockwood, Q.O., Searle, and C. N. Crosse.
CHITTY, J., said that the practice as, on inquiry by him, stated by the Re ALBERT PALACE ASSOCIATION—Chitty, J., 1st April.
registrar, was that in cases like the present costs of the subsequent motion
included those of the prior ex parte application, although not mentioned COMPANIES Act, 1862, s. 87—WINDING UP – INJUNCTION-RESTRAINING expressly at the hearing. The registrar had omitted to include them in RECOVERY OF PENALTIES UNDER SECTION 25.
the order drawn up, and in this respect the order should be altered, and In this case (see ante, p. 363) a motion was made by the official liqui- the defendant would have the costs of the present motion ---Counsel, dator of the company for an order, under the Companies Act, 1862, s. 87,
Decimus Sturges; Romer, Q.C., and John Cutler. SOLICITORS, Hamlin,
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 stay of proceedings, and could be produced at the hearing, if any, of the
Relief-R. S. C., 1883, XIX., 10; XX., 4; LV., 54. (DECEMBER, CHITTY, J., said that it appeared on the evidence that the respondent
1885). had stated, in answer to the applicant, that no one but a judge of the In this case a question arose as to the relief which could be given to a Chancery Division could stop his proceeding with the summons. Such a plaintiff, on a motion for judgment in default of the defendant's appearstatement.amounted to a threat of proceeding. He therefore granted a
ance to the writ. The action was for the foreclosure of a mortgage. By perpetual injunction, with costs.-COUNSEL, W. R. Sheldon ; Willis Bund. his writ the plaintiff claimed the ordinary mortgage accounts; foreclosure SOLICITORS, McDiarmid & Teather; Wright of Wright.
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 BURROWS v. HOLLEY-Chitty, J., 31st March.
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, REGISTRATION IS MIDDLESEX-RegistrATION OF JUDGMENT for Fore which says that “every pleading or other document required to be
CLOSURE ABSOLUTE-7 Anne, c. 20. s. 18–1 & 2 Vict. c. 110, s. 18. 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 obtained in a mortgage action a judgment for foreclosure absolute to the party if he does not appear by a solicitor, but, if no appearance Las have an entry of the same made in the Middlesex Register. The plaintiff been entered for any party, then such pleading or document shall be had applied for the insertion in the foreclosure order of a direction to delivered by being filed with the proper oficer." Rule 4 of order 20 proregister the order in Middlesex, relying on 7 Anne, c. 20, s. 18, which vides that " Whenever a statement of claim is delivered the plaintiff may provides that no judgment shall bind land in Middlesex until entered up
therein alter, modify, or extend his claim without any amendment of the inat the Middlesex Registry, and contended that “judgment" included fore
dorsement of the writ.” By his statement of claim the plaintiff claimed closure judgments.
the relief which he had claimed by the writ, and also personal payment of CHITTY, J., said that it was clear that section 18 referred to common the mortgage debt and interest by the mortgagor. The plaintiff gave notice law money judgments, and the effect of the enactment was not altered by of motion for such judgment as upon the statement of claim the court 1& 2 Vict. c. 110, s. 18, or by the Judicature Act, 1873, s. 110, the former may consider the plaintiff entitled to." The defendant did not appear on of those enactments spoke of decrees and orders of courts of equity
the hearing of the notion. Whereby any sum of money was payable, and the enlargement in the
NORTH, J., refused to make an order for personal payment by the latter enactment of the term judgment so as to include decrees was made defendant.
He said that, the statement of claim not having been for the purposes of the Act which contained such enactment, and for no Xelivered to the defendant otherwise than by filing it with the officer of other purpose. If he were to accede to the present application he would the court, the plaintiff could not have any relief beyond that which he be casting doubt on an infinite number of existing titles. He had com had claimed by his writ. NORTH, J., also asked why the action had not municated with the Middlesex Registrar and ascertained that he would
been commenced by originating summons in chambers, instead of by follow any direction which the court might give. He was not, however,
writ, and suggested that the plaintiff ought only to have the costs of a justified in giving any direction to register such judgments as that which summons. The plaintiff's counsel replied that a receiver could not have the present applicant songht for, as there was no ground which could beer appointed under an originating summons. In the result, North, J., support any right to registration. He refused the application. -Counsel, did not make any special order as to costs, but he said he must not be J. H. Boome. SOLICITORS, Barnard & Co.
taken as assenting to the view that a receiver could not be appointed
under a summons.--COUNSEL, Nalder. SOLICITORS, Collyer. Bristow & Co. THE YORKSHIRE RAILWAY CO. v. MULLAN--Chitty, J.,
UNWIN v. BUCK-North, J., 4th April.
GAGOR-REAL ESTATE SPECIFICALLY DEVISED-FORM OF JUDGMENT.
In this case a question arose as to the proper form of the judgment for possession, rent from the date of the order or from the date of his demand
the administration of the estate of a deceased mortgagor, obtained at the for the same. The action was for foreclosure, and the defendant was
instance of the mortgagee, whose security was deficient. The mortgagor the security. The order appointing the receiver direct bardhat emprisedning he devised all other his real estate to trustees, in fee, upon certain terasts. should attor and pay rents to the receiver. After the appointment of
He bequeathed the residue of his personal estate to the same trustees on receiver the plaintiff obtained judgment for foreclosure nisi,
certain trusts. The testator died in 1864. The action was commenced CHITTY, J., said that in the case of Rand field v. Randfield (7 W. R. 651)
by the mortgagee of a term of 1,000 years, which the testator held at a ezepte fin de wful possession could not be made to payer ccupationerent The writ claimed payment of the mortgage-money, and interest, the moet prom the date of the receiver's demanda or he receivership tinder and ordinary mortgage accounts, and, in default of payment, sale, or forenot expressly provide for the mortgagor being himself in occupation, and
closure and possession ; that, in case the proceeds of sale of the mortgaged the encontrary, the rent Payable to the disturbe donuylean by ons predicteder and that, if the defendants did not ad mit assets, the real and personai eos ingen to every principle not to the disturbedeuntess bythe press care plaintiri, the deficiency might be made good out of the testator's estate delivent due for occupation rent as treat that tietoa ainquiry defa tile the judgment was given" for he ordinary mortgage accounts, and for the delivery, up of possession.-- SOUNSEL, "Met hoid; Grosvenor Woods. Solici of the mortgaged property and the application of the proceeds of sale in
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 BLAKEY v. HALL–Chitty, J., 1st April.
deficiency out of the assets of the testator; and it was ordered that, in PRACTICE - Costs—EX PARTE INJUNCTION—R. S. C., 1883, XXVIII., 11.
that case, the ordinary accounts in a creditor's administration action panelio case the defendant had obtained, on an ex parte motion, an interim personal estate should not be truth clent for the payment of his debts, &c. rhent of Chitty, J., 8 the second the hole in action he ju linguisties should the moquirie de directe content manage they are este representation
A. R. Oldman.
was seised of or entitled to at the time of his death, other than the here- purposes. There were many authorities, such as Attorney-General v. Eastlake ditaments comprised in the plaintiff's mortgage." And it was ordered (11 Hare, 205), which shewed that the purpose to which property was that " a sufficient part of the testator's real estate, other than as aforesaid, applied, not the source from which it was derived, was the test to deter. to make good the deficiency of the testator's personal estate, or, if neces mine whether it was charity property. Re Sl. Bride's, Fleet-street (W.N., sary, the whole of such real estate, be sold." The mortgaged property was 1877, pp. 95, 149), was precisely in point.—Counsel, Everitt, Q.C., and sold and proved insufficient, and the personal estate also proved to be E. Ford; Sir H. Davey, Q.C., and Vaughan Hawkins. SOLICITORS, Clapham insufficient to pay the testator's debts." F., a specific devisee of part of f Fitch; Clabon. 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 Re THE CHRISTCHURCH INOLOSURE ACT-Stirling, J., 30ih inquiries as to the testator's real estate, and so much of the judgment as October; 8th, 13th, and 27th November ; 4th and 11th December; directed a sale of the testator's real estate, or any part thereof, other than 28th March. the hereditaments comprised in the plaintiff's 'mortgage, or, in the alternative, that there might be added to the judgment an inquiry whether INCLOSURE ACT-CONSTRUCTION --ALLOTMENTS-Turp Common-Rights of
LORD OF THE MANOR AND OCCUPIERS-CHARITABLE TRUST. 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 Inclosure commissioners, appointed by the Christchurch Inclosure Act, in possession of the real estate devised to him ever since March, 1869 1802 (42 Geo. 3, c. 43), were directed to allot to the lord of the manor, in He said that the mortgaged property was of ample value at the time of trust for the occupiers for the time being of certain cottages, part of the the testator's death, and that the plaintiff had unreasonably delayed the waste of the manor for supplying turves for fuel for the use of such realization of it until its value had decreased.
cottages. Numerous other allotments were also to be made, and, among North, J., said that the inquiry above quoted was in a common form others, one to the lord of the manor of a specified value in compensation properly applicable to a case where a testator had devised his real estate for his rights in the soil of the waste ground, which should be awarded generally to trustees, but it was not applicable to a case where there were by the said commissioners, to be divided and allotted” under the Act. specific devises. The inquiry must be altered by adding to it the
Allotments were also directed to be made for (among others) the owners words “and other than the real estate specifically devised_to_F."
of the above mentioned cottages in proportion to their interests, to be COUNSEL, Dundas Gardiner ; Eustace Smith, SOLICITORS, W. W. Palmer ;
in compensation for their rights in the waste, which should be “divided Beaumont, Son, $ Rigden.
and allotted” as aforesaid. And any parts of the waste which the com
missioners should not think proper to divide, allot, and inclose were to Re ST. BOTOLPH WITHOUT BISHOPSGATE PARISH ESTATE- | portion of the allotments made under the Act for the turf common was
be ring-fenced or continued open and used as therein mentioned. A North, J., 26th March.
purchased by the London and South-Western Railway Co. from the lord "CHARITY PROPERTY"-JURISDICTION CHARITY COMMISSIONERS of the manor, who paid the purchase-money into court in consequence of
PROPERTY VESTED IN TRUSTEES FOR THE USE AND BENEFIT OF A PARISH-- claims made in respect of it by the owners and occupiers of the cottages. City of London Parochial Charities Act, 1883 (46 & 47 Vict. c. 36), This petition was present by arrangement by the Earl of Malmesbury, on ss. 5, 10, 11.
behalf of himself and the other owners, for the purpose of having their The question in this case was whether certain real estate, which was rights determined. When the matter first came on it was ordered to vested in trustees on behalf of a parish, was charity property within stand over in order that the Attorney. General might be served. the meaning of the City of London Parochial Charities Act of 1883.
STIRLING, J., in giving judgment, said that the question was one of the Section 5 of that Act provides that the Charity Commissioners “shall as
construction of the Act. Under the enactment relating to the allotments soon as may be proceed to inquire into the nature, tenure, and value of for a turf common, the soil of such allotments was left vested in the lord,
the property and endowments belonging to the charities' mentioned in subject to a perpetual trust in favour of the occupiers. The owners took the Digest of Parochial Charities of the City of London, referred to in
no benefit from that trust except such indirect one as might result the 13th report of the Charity Commissioners for England and Wales, from the higher rent which they might be able to obtain for the cottages and every of them, and every other charity the property or income of
in consequence of their rights of turbary. The special allotment made which is applicable or applied to or for the benefit of any parish or part of a
to the lord and directed to be in compensation for his rights in the soil parish within the City of London, or of any inhabitant or inhabitants
of the waste ground, which should be “awarded to be divided and thereof, and the purposes or trusts for or upon which the same have here. allotted" under the Act, his lordship held, upon the construction of the tofore been or are now held or enjoyed, and to which the income thereof Act, was not to be in compensation for the lord's rights in respect of the has been or is now applied, and shall classify the said property in two
soil of the turf common, but only for his rights in respect of such part of schedules," one of which is to contain ecclesiastical charity property, the waste as should be specifically allotted to be held in severalty: The and the other“ general charity property." Section 11 provides that the persons, therefore, entitled to the fund in court were the lord and the commissioners shall proceed to prepare a scheme or schemes for the occupiers, present and future, There would be an inquiry as to the ments so classified by them, and section 10 provides that any person or future application and management of the charity property and endow- respective interests of the lord and the occupiers, but as to the rights
inter se of present and future occupiers his lordship decided nothing. persons alleging that any property which the commissioners have deter
His lordship further held that the rights of the occupiers were private mined to be charity property is not charity property, but that he or they and not public rights, and consequently that the trust in their favour was is or are entitled to the same free from any charitable trust affecting the not charitable. -Counsel, Robinson, Q.C., and Cust; Hastings, Q.C., and same, may apply to the High Court for a declaration that such property Kenyon Parker ; Pearson, Q.C., and Ribton ; Spencer Butler; Hemming, Q.C. is not charity property. În June, 1794, a piece of land was conveyed and Pauli, and Ingle Joyce. SOLICITORS, Nicholl, Manisty, & Co., Arnold, to the then rector of the parish and certain other persons (described as Crawley, ó Co.; Lowell, Son, § Pitford ; Bircham g Co. ; Solicitor to the parishioners and householders of the parish) as trustees, appointed by
Treasury. 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
LESLIE v. CAVE-Kekewich, J., 31st March. named as trustees in the deed of 1794 were appointed trustees for the
PRACTICE-PRODUCTION OF DOCUMENTS-PRIVILEGE-SUFFICIENCY OF 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 respect of certain documents was sufficient, it appearing that one of the
In this case the question arose whether an affidavit claiming privilege in lives or terms of years, and to apply the same in the purchase of the documents was not entitled to privilege. The plaintiffs sued the defend. such other buildings thereon as should be necessary for the relief and where, and the defendant counter-claimed to recover possession of these employment of the poor of the parish and the furnishing of the workhouse, estates, alleging that by an indenture dated in 1812 the estates were settled. 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 ment in B., and, subject thereto, with remainder over ; and that the power
on A. for life, remainder to B. for life, with a general power of appoint. that the above conveyance should be an effectual conveyance to the of appointment was duly exercised by B. in favour of'c., under whom 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
defendant claimed. The plaintiffs rested their claim on the remainder part of the land. In 1837 the East London Poor Law Union was formed, and B. The defendant had obtained an affidavit of documents from the plain
over, alleging that the power of appointment had never been exercised by the workhouse was no longer required for the parish. The building was tiffs, which was in the usual form, and claimed privilege in respect of the afterwards let, and the rent was applied for the use and benefit of the documents specified in the schedule, on the ground that they relations parish in aid of the poor rates. In 1865 the property was taken by the wholly to the title of the plaintiffs, and did not support the defendant's purchase of other property, the income of which was paid over by the only claimed in respect of a part of the document, the rest being subt parish trustees to the church wardens and overseers of the poor of the mitted by the plaintiff's to inspection. Nozth, J., ordered this document parish and applied by them in aid of the poor rate. cf the Act of 1883 the Charity Commissioners publisbed a statement
After the passing 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 charity" of the parish, stating that the application of it was “' for parish it then appeared that this document was not entitled to privilege at of
general document (which was a conveyance of real estate) without reading it all. purposes analogous to poor rates." This petition was presented by the The defendant accordingly applied to North, J., for inspection of all of parish, asking the court to deciare that the property tas moon charity that, inasmuch as the claim of privilege had been proved to be inacemento
PARTH, J., held that the property was “charity property", within the named Pnerein." The action having been transferred for trial to Keker thing the use and benefit of the parish was in his opinion a trust for charitable I request of North, J., heard by the former judge. The defendant rélied
upon Ponsonby v. Hartley (27 SOLICITORS' Journal, 314, W. N. 1883, 44) as land, with such title as the Court may think just, and for that purpose shewing that the privilege was gone, inasmuch as it had been falsely may, if necessary, cause the title to be examined by one of the couvey. claimed with respect to one document.
ancing counsel of the Court. KEKEWICH, J., said that his own view of the practice of the court did 4. Provisions as to first registration.] (1.) An application for the registranot agree with the decision in Ponsonby v. Hartley as reported, and he tion of land under the principal Act may be made by any person capable must decline to follow it. He therefore adjourned the hearing of the of conveying the fee simple of, or the whole interest in the lard, whether action till the 26th of April to enable the defendant (if so minded) to with or without consent, and whether for his own benefit or not, and apply to the Court of Appeal. — Counsel, Warmington, Q C., and A. whether as owner, mortgagee, or otherwise, and whether subject or not to Brown; Barber, Q.C., and Ingpen. Solicitors, Jackson, Wyman, f Smart; incumbrances, and in the case of settled land may be made either by any Arnold g Co.
such person as aforesaid or by the trustees of the settlement.
(2.) Leasehold land may be registered with a possessory title only, and JUDGES' CHAMBERS.
the provisions of the principal Act with respect to the registration of ELKINGTON v. FRAZER—Mapisty, J., 23rd March.
freehold land with a possessory title shall apply accordingly to leasehold Costs-Recovery Of LESS THAN £50—ORD. 65, r. 12.
land with the necessary modifications.
5. Provisions for registration of settled land.] (1.) Where an application is This was an application under ord. 65, r. 12, for an order that the made for the registration of settled land, the trustees of the settlement plaintiff should be entitled to costs as of an action in the High Court. shall be registered as the proprietors of the land, but the name of the The action was brought in the Birmingham District Registry to recover tenant for life shall be separately entered in the register under an appro£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 (2) The registration of settled land in pursuance of this section shall £25 in discharge of the damages for wrongful dismissal. This amount not confer on the trustees of the settlement as against the tenant for life, was taken out in satisfaction of the whole cause of action. On the taxa- and shall not take away from the tenant for life, any power to sell or tion of costs in the District Registry, objection was taken by the defendant otherwise deal with the land, and for the purpose of exercising any such on the ground that, under the above rule, only costs on the county court scale were recoverable.
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 purMaristy, J.-Considering the nature of this action, and seeing that the chase-money paid on any transfer of the land, and the money raised by 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.
any charge on the land, shall be paid to the registered proprietors of the SOLICITORS, Beale & Co.; Robinson, Preston, f Stow.
(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.
(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 PENDING LEGISLATION.
settlement, unless and until trustees of the settlement are appointed. THE LAND TRANSFER BILL.
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 relating to registra- for this section, pass to his heirs, it shall, on his death, notwithstandtion :
ing any testamentary disposition, devolve to his personal representatives PART I.
as if it were a chattel real, and for the purposes of this section the CONSTITUTION OF LAND TRANSFER Office.
personal representatives for the time being of the deceased shall be 1. Establishment of Land Transfer Board and Office.] (1.) For the
deemed his heirs.
purposes of the principal Act a Land Transfer Board shall be established, charged interest in real
(2.) Provided that this section shall not alter any right to the beneficial with the duty of facilitating the transfer of land, consisting of a
estate, or any liability of real estate for the debts
of a deceased person, registrar-general, a chief examiner of titles, and an assistant registrar, to
and subject to the liability for those be appointed by the Lord Chancellor, who shall have power to fill all
debts the personal representatives of the deceased person shall hold his real vacancies in the board.
estate as trustees for the person by law beneficially entitled thereto. (2.) The board shall have a principal office in London, and branch registered land or a registered charge shall, without being themselves
(3) The personal representatives of a deceased registered proprietor of offices at such places in England as may from time to time be determined registered, have the same power of dealing with the land or charge as if time, to the principal office in London and to each of the branch offices, a (3.) There shall be annexed, by Orders in Council made from time to they were the registered proprietors thereof, and the principal act shall
apply accordingly. Jand transfer district for the purposes of the registration and transfer of
(4.) This section applies only in cases of death after the commencement land. The limits of each district shall be such as may be from time to
of this Act. time determined by Order in Council.
EXTENSION OF LAND TRANSFER Act.
Confirmation of possessory or qualified Title.
7. Application to Land Transfer Board for confirmation of possessory or 2. Registration required to carry legal estate.] Her Majesty may by Order qualified title.] (1.) Any person registercd as proprietor of land with a his Council from time to time declare, as respects any land"transfer 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 the transfer of land in the district is to be compulsory, and on and after five years from the date of the first publication of the notice in this Act that day it shall be the duty of every person before selling, settling, or mentioned, unless due cause is shewn in the meantime why such confirmamortgaging land in the district to be registered as a proprietor of the land, tion should not take place.
(2.) The application for the confirmation of title to land shall be following provisions shall apply to such freehold and leasehold land accompanied by an affidavit in such form, by such persons, and with Äitate within the district as is capable of registration under the principal 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 (a.) until a proprietor of the land has been registered, a conveyance of aware of any question or dispute as to the title, except such (if any) as is
the fee simple of the land, if freehold, whether subject or not to specified in the affidavit, and believes that, except as aforesaid, the conincumbrances, and a conveyance of the whole interest in the land, firmation of the title will not prejudice any estate, right, or interest of if leasehold, whether subject or not to incumbrances, and a convey. any other person in, to, or over the land.
8. Public notice on receipt of application.] (1.) On the receipt of an appli. eleven of the principal Act, shall, it executed after the day socation, accompanied by the requisite affidavit, and on the deposit by the specified, operate only as a contract, and not convey to a person applicant of such sum as may be directed by the Land Transfer Board for benefit from or execising or creating any legal rights in or over the tion, the board shall publish notice of the application having been made. land, nor confer on him any equitable right in "Fespect of the land 2.9. The notice shall be in the prescribed form, and shall contain the preexcept the right of enforcing the contract, and the cost of such a scribed particulars. conveyance shall not be allowed on taxation ; and
(3.) Publication of the notice shall be made(6.) until a proprietor of the land has been registered, a person (a.) by such advertisements, local notices, and other means as may be succeeding, under the will or on the intestacy of any person dying
prescribed or as the Land Transfer Board may in any particular after the day so specified, to the fee simple of or a life estate in the case direct ; and land, if freehold, whether subject or not to incumbrances, or to (6.) by serving in the prescribed manner a copy thereof on every person the whole interest or a life estate in the land, if leasehold, registered as an incumbrancer of the land, or being a cautioner in whether subject or not to incumbrances, shall not be capable of respect of the land, and on any other person who in the opinion of taking any benefit from or exercising or creating any legal rights in
the Land Transfer Board ought to receive notice. Ligh Registry of sales made in the High Court.] Where under an order of the of Novembermelicaniter the lapphctation, and alucing the month of Novemthe principal Act is sold, the court may, and if the land is situate in a hien ourt any freehold or leasehold Crand capable or registration under ber in each of the four years succeeding the first publication.
9. Mode of shewing cause against confirmation of title.] (1.) Any person compulsory, shall cause the purchase to the registered atroproprietoran die dieses within the period the years from the date of the first publication
of notice of the application for confirmation of title, petition the Land persons in receipt of the rents and profits of all the lands adjoining Transfer Board in the prescribed manner, and subject to the prescribed the land in question and that the applicant has, eave as specified in conditions as to security of costs and otherwise.
the affidavit, served in the prescribed manner on all those persons (2.) On receipt of the petition, it shall be the duty of the Land Transfer the prescribed notice of his intention to make the application ; Board to make inquiry as to the matters in the petition alleged, and to (iv.) that the applicant has given the prescribed notice in relation to satisfy themselves as to the sufficiency of any cause shewn therein against any highway, river, common, or other place over which the public the application.
or any class of persons exercise or have any rights or that there is (3.) All costs incurred by any person presenting any such petition shall no such highway, river, common, or place affected by the applicabe taxed in manner provided for the taxation of costs in or about proceed. ings for the registration of land, and shall be defrayed by the applicant (v.) that save as specified in the affidavit, the applicant is in possession for the confirmation of title, unless the Land Transfer Board are of or in receipt of the rents and profits of the whole of the land opinion that the petition was presented without reasonable ground.
comprised within the boundaries claimed ; and 10. Confirmation of title at expiration of time.] (1.) Within the prescribed (vi.) that the deponent believes that the entry of the description of those time after the expiration of the period of five years from the date of the
boundaries as conclusive will not prejudice any estate, right, or first publication of the notice of application the applicant for confirmation
interest of any other person or class of persons in, to, or over any of title may finally apply to the Land Transfer Board to make an entry in land, or the exercise of any right by the public. the register confirming his title.
(6.) The petition shewing cause against the entry may, in addition to (2.) The final application shall be accompanied by an affidavit in such ary other allegation, allege that the petitioner has good cause to believe form, by such persons, and with such particulars as may be prescribed, that the rights of some class of persons or of the public will be prejudiced and shall include, with respect to its date, the like statements as are by the entry applied for. required on a first application.
(c.) The Land Transfer Board shall not make the entry unless satisfied 3.) On receipt of the final application, accompanied by the requisite that adequate notice has been given to the persons interested, and that affidavit, if no petition has been presented to shew cause why the entry the rights of any persons or class of persons or the exercise of any right by applied for should not be made, or, if such a petition has been presented the public will not be prejudiced. and is held to shew no sufficient cause why the entry should not be made,
(d) From and after the date of the entry being made, the description of the Land Transfer Board ehall make an entry in the prescribed form in
the boundaries as entered in the register shall be conclusive. the register confirming the title of the applicant.
(e.) An entry under this section in the register of the description of tho (4.) From and after the date of the entry being made, the title so con
boundaries of any land as conclusive shall not deprive the public of any firmed shall be absolute in the same manner as if the proprietor had been right, and if by reason of any such entry any person or class of persons is registered with an absolute title on the day on which the first application deprived of any estate, right, or interest in, to, or over the land, the to confirm his title was made.
proprietor of the land at the time of the entry, his heirs, executors, and (5.) If by reason of the confirmation under this section of the title of administrators, shall be liable to pay compensation for the same in like the proprietor of any land any person is deprived of any estate, right, or
manner as for an injury to the property of that person or class of interest in the land, the proprietor, his heirs, executors, and administra- persons. tors shall be liable to pay compensation for the same in like manner as (f.) If the Land Transfer Board are of opinion that the boundaries of the for an injury to the property of that person.
land referred to in the application can be conclusively established only for (6.) In the event of the applicant dying during the period of five years a limited portion, or only subject to certain reservations, whether mentioned in this section, his application shall not be deemed to have affecting the whole or part of the boundaries, or that any part of the determined, but the person registered as successor in title of the applicant boundaries, though open to some doubt, is not likely to be disputed, the may, if he thinks fit, proceed with the application as if he were the board may enter in the register the exceptions and qualifications subject original applicant.
to which the boundaries are established, and may enter in the register 11. Powers of board on application for confirmation of ti'le.] (1.) For the
that the description of the boundaries is conclusive, save as specified in 'purpose of the execution of their duties in relation to an application for the exceptions and qualifications. confirmation of title, the Land Transfer Board may exercise any powers
(9.) Nothing in this section shall alter the effect of the registration of which they may exercise on an application for the registration of land in land with a description which is not conclusive as to the boundaries respect of which an examination of title is required.
thereof. (2.) Any person aggrieved by a decision of the Land Transfer Board
14. Boundaries between adjoining pieces of registered land.) (1.) On the with respect to the confirmation of a title to land, may appeal to the transfer of part of any registered land, the Land Transfer Board, on the High Court in the prescribed manner and subject to the prescribed con- prescribed conditions being complied with, may enter on the register as ditions.
conclusive the boundaries between the part transferred and the part not 12. Persons under incapacity.] (1.) A petition shewing cause against the transferred. confirmation of a title may be presented by any person alleging that he
(2) The Land Transfer Board may also, on the application of the has good cause to believe that the right of some person under incapacity registered proprietors of adjoining lands, and on the prescribed conditions will be prejudiced by the title being confirmed.
being complied with, settle and enter on the register as conclusive the (2.) The following persons shall for the purposes of this section be
boundaries between those lands or any parts thereof, and for this purpose deemed to be under incapacity, namely, an infant, a lunatic, and a apy person entered as tenant for life of registered land shall be in the married woman, not entitled for her separate use, or under the Married same position as if he were the registered proprietor of the land. Women's Property Act, 1882, as if she were a feme sole ; and this section (3) If on any transfer of registered land any doubt arises as to the shall apply to a person as to whom it is not known whether he is alive or boundaries or extent of the land, the Land Transfer Board shall, on the dead, and to anyone claiming under or in succession to any such person, application of the transferor or transferee, have jurisdiction to decide the in like manner as if he were under incapacity.
doubt as between them, subject to an appeal to the Court in the pres. (3.) Where a person is absent from the United Kingdom in the service cribed manner and on the prescribed conditions. 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
Establishment of Insurance Fund. 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 in accordance with the scheme in the First Schedule to this Act, an in;
15. Power to establish insurance fund.] (1.) There shall be established, 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.
surance 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 Boundaries.
suffered by any person in respect of registered land which arises from 13. Application for entry of conclusireness of boundaries ), (1.) If the Board or its officers, or from any of the other matters in the scheme men
forgery or fraud, or from any error on the part of the Land Transfer registered proprietor of any registered land desires that the description of tioned. 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 the Treasury may from time to time direct.
(2.) The insurance fund shall be invested in such names and manner as 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
(3.) If the insurance fund is at any time insufficient to pay compensa. in the meantime why the entry should not be made.
tion for any such loss, the deficiency shall be charged on and paid out of (2.) The foregoing provisions of this Act with respect to the proceedings thereof; but any sum so paid out of the consolidated fund or the growing on an application for confirmation of title shall apply to the application produce thereof shall be Fepaid out of the money subsequently standing 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 modi.
to the credit of the insurance fund. fications:
(4) Accounts of the fund shall be kept, and be audited as public (a.). The aftidavit accompanying the application shall include statements time to time make.
accounts, in accordance with such regulations as the Treasury mag from (1.9 that the deponent has made due inquiry into the boundaries in any matters which appear to be necessary or proper for giving effect to
(5.) Rules under this Act may from time to time be made providing for question ; (ii.) that the boundaries claimed are ordnance map either as to the whole or tas to any part thereof, and register. M (1.) Where a person satisfies the "High Court that he has been
16. Amendment of 38 f 39 Vict. c. 87. 88. 95 and 96 as to rectification of the so far as they are not so set forth, are delineated in the accompany: deprived of any registered land, by any forgery or fraud, or by any cords (iii.) that the persons named are, to the best of the applicant's know-ing has the Court mayoandik'equitablet under the circumstances, either
ledge and belief, and for the reasons specified, the occupiers and order payment of compensation for that person out of the insurance fund,