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appreciated the bearings of all the different parts of the will, we should upset half the wills in the country. Once get the facts admitted or proved that a testator is capable, that there is no fraud, that the will was read over to him, and that he put his hand to it, and the real question whether he knew and approved of the contents is answered." My Lords, although I do not think it is necessary in the present case to determine the question, I do not know that there is anything in that direction taken as a whole to which I could venture to make any objection, but your Lordships will observe the very important qualification. I say "taken as a whole." In the first place the jury must be satisfied that the will was read over, and in the second place they must also be satisfied that there was no fraud in the case. Now, applying these observations to the present case, I will ask your Lordships to observe that we have no means of knowing what was the view which the jury in the present case took with regard to the reading over of the will. The only witnesses upon the subject were those persons who themselves were propounding the will. No person else was present, no person else knew anything upon the subject. It appears that those witnesses stated either that the will was read over to the testator, or that it had been left with him overnight for the purpose of being read over. The jury may have believed that statement. It by no means follows that the jury thought even if there had been some reading of the will that that reading had taken place in such a way as to convey to the mind of the testator a due appreciation of the contents and effect of the residuary clause. And it may well be that the jury finding the clearest expression of the intention of the testator in the instructions for the will, were not satisfied that there was any such proper reading and explanation of the will as would apprise the testator of the change, if there was a change, between the instructions and the will. But, moreover, how does the qualification that there must be no fraud bear upon the present case? It is very difficult to define the various grades or shades of fraud; but it is a very important qualification to engraft upon the general state of things, that the reading over of a will by a competent testator must be taken to have apprised him of the contents. If your Lordships find a case in which persons who are strangers to the testator, who have no claim upon his bounty, have themselves prepared for their own benefit a will disposing in their favour of a large portion of the property of the testator; and if you submit that case to a jury, it may well be that the jury may consider that there was a want, on the part of those who propounded the will, of the execution of the duty which lay upon them, to bring home to the mind of the testator the effect of his testamentary act; and that that failure in performing the duty which lay upon them amounted to a greater or less degree of fraud upon their part. The qualifications of Lord Penzance in the charge I have read may entirely apply to such a case. The other case which came before the same learned Judge is that of Guardhouse v. Blackburn (L. Rep. 1. P. & D. 109; 14. L. T. Rep. N. S. 69.) In that case the learned judge laid down certain propositions which he said commended themselves to his mind as rules which since the statute ought to govern his action in respect of a duly executed paper; and the third of those rules

[H. OF L.

was this, that "although the testator knew and approved the contents, the paper may still be rejected, on proof establishing beyond all possibility of mistake, that he did not intend the paper to operate as a will. Fourthly, that although the testator did know and approve the contents, the paper may be refused probate, if it be proved that any fraud has been purposely practised on the testator in obtaining his execution thereof. Fifthly that subject to this last preceding proposition, the fact that the will has been duly read over to a capable testator on the occasion of its execution, or that its contents have been brought to his notice in any other way, should, when coupled with his execution thereof, be held conclusive evidence that he approved as well as knew the contents thereof." Therefore, my Lords, I come to the conclusion that even if these rules, laid down in this way by Lord Penzance, are to be accepted as rules which should be applied to the case of every testamentary instrument, still, with regard to the present case, they do not carry to my mind any persuasion that there was a nondirection on the part of the learned Judge in a matter which he ought to have laid before the jury. It appears to me that consistently with the rules mentioned by Lord Penzance, the jury here may not have been satisfied that there was a proper reading of the will to the testator, or they may have been satisfied after bearing all the facts submitted to them by Mellor J., that there was on the part of those who propounded this will such a dereliction of duty, such a failure of duty, on their part as amounted to that degree of fraud to which Lord Penzance refers in the rules I have mentioned. I therefore arrive at the conclusion that there was no positive misdirection on the part of Mellor J., that there was no failure on his part to lay down some unyielding and absolute rule of law, such as was suggested at the bar; and that there was no finding of the jury, which could be called a finding in opposition to evidence; for it was suggested that when once the jury had before them uncontroverted evidence that the will was read over, any verdict on their part that the residuary clause was not known to the testator, would be opposed to their finding upon the issue that he was of sound and disposing mind. That was a question for the jury, and it might well be that they would not believe the evidence with regard to the reading over of the will. Upon those grounds I feel myself obliged to say that there was nothing which could be alleged against this verdict of the jury, requiring the court to direct a new trial. It was eminently a question for the jury, and I see no reason whatever to be dissatisfied with the verdict at which they arrived. My Lords, I will only refer to one other subject which has been very much argued before your Lordships, lest it should appear to have escaped observation. It was said that there was a general rule in the Probate Court, which had not been complied with in this case, and that evidence was allowed to be adduced at the trial, which, having regard to that rule, ought not to have been adduced or considered by the jury. That rule was Rule 40a of the amended and additional Rules and Orders of the Court of Probate in contentious business. It is ordered that any party pleading certain pleas should forthwith "deliver to the adverse parties and file in the registry particulars in writing stating shortly the substance of the case he intends

to set up thereunder, and no defence shall be available thereunder which might have been raised under any other of the said pleas, unless such other pleas be pleaded therewith." The particulars delivered in this case were these "That the deceased at the time of the execution of the said alleged will was in a state of mental prostration brought on by habitual drunkenness and disease of the brain; and that he was not in fact when he executed the said alleged will conscious of and did not approve of the contents of the said alleged will, or of the residuary clause." It was said that these particulars must be read as if the second part was intended to be exactly coextensive with the first; that the only allegation in the particulars was an allegation of mental prostration brought on by habitual drunkenness, and disease of the brain; that the words "and that he was not in fact conscious of and did not approve of the contents of the will," must be referred to that state of mind and body, and that unless that state of mind and body was established, the case suggested by the particulars could not be held to have been proved. My Lords, I do not in the first place read the particulars in that way. It appears to me that it would be much too strict a construction to put upon them to hold that the two portions of that clause are identical. But further I have not satisfied my mind that the rule in question applies at all to an issue like the sixth. The rule expressly on the face of it applies only to the first five pleas or issues, they are set out upon the face of the rule, and it is said that with regard to them particulars must be delivered and evidence of the kind 1 have mentioned must be given. The sixth plea in this case was pleaded by special leave of the court, and I do not find that any terms whatever were imposed with regard to the particulars to be given under it. It appears to me impossible that any person reading those particulars could have supposed that they applied to the sixth issue as well as to the fifth, because if you hold that the particulars apply to both issues, and are to be construed as the respondents construe them, they would amount to a suggestion that the testator was in a state of mental prostration brought on by habitual drunkenness and disease of the brain, so that he could not be conscious of or approve of the contents of the whole will, but that still that disease and prostration may have been of so singular a kind that he could approve of the contents of the whole will, minus the residuary clause, but could not approve of the contents of that clause. That would be reducing the meaning of the particulars to an absurdity, and I think they could not have been so understood by any person who read them. But, my Lords, I am not satisfied that there is anything in the rule which gives the particulars the effect contended for, and it appears to me, especially, that no objection whatever having been taken at the trial in this case, when some amendment might have been permitted, this point cannot now be taken with success at your Lordships' bar. The result of the whole is this: I move your Lordships to allow the present appeal, and making now the order which ought to have been made in the Court of Probate, to discharge with costs the rule obtained for a new trial; to reverse the Order of the Court of Probate giving out probate, and with that direction to remit it to the Court of Probate to do what is right with regard to qualified probate of this will.

[CHAN.

Lords CHELMSFORD, HATHERLEY, and O'HAGAN concurred.

Appeal allowed. Rule for a new trial discharged with costs. Cause remitted to the Court of Probate.

Attorney for the appellants, J. Whitehouse. Attorneys for the respondents, Hughes and Sons.

Equity Courts.

COURT OF APPEAL IN CHANCERY. Reported by E. STEWART ROCHE and H. PEAT, Esqrs., Barristers-at-Law.

Monday, Feb. 22.

(Before the LORDS JUSTICES.)

RICHARDS v. GODDARD.

Practice-Cross-examination of witness-Payment of expenses under Rule 19 of Order of the 5th Feb. 1861-Taxation.

Appeal from decree of Hall, V.C., refusing to make an order that the costs of producing a witness for cross-examination should be at once taxed and paid, holding that the taxation ought to stand over until the hearing:

Held (reversing the decision of the Vice-Chancellor), that the plaintiff having been called upon to produce, and having produced, a witness for crossexamination, was entitled, ex debito justitiæ, to have the expenses thereof forthwith taxed and paid. THIS case came originally before Hall, V.C., upon a motion made upon the part of the plaintiff that the affidavits of two witnesses might be used as evidence on his behalf, notwithstanding that the said witnesses had not been produced for crossexamination before the examiner.

The defendant having required the production of the witnesses for cross-examination, the plaintiff was willing to produce them on an appointment being made by the defendant for the cross-examination, and on the expenses of the witnesses being paid, but this the defendant refused.

The Vice-Chancellor held that the party putting in a witness as evidence was supposed by the 19th Rule of the Order of the 5th Feb. 1861, to have dominion over him, and was therefore bound to produce him when required for cross-examination, and he therefore dismissed the motion, and directed the witnesses to be produced by the plaintiff for cross-examination before their affidavits could be read: (Reported 29 L. T. Rep. N. S. 884.)

One of the witnesses having declined to come to this country from America, where he was residing, until his expenses were paid, the plaintiff paid the expenses of his journey, and allowed him 21. per week during his stay here.

Before the cross-examination of the witness on his affidavit before the examiner, the plaintiff demanded to be paid the expenses which he had incurred, whereupon an undertaking was given on behalf of the defendant to pay whatever sum should be found to be due on taxation.

The witness was then cross-examined. An application having been made to the ViceChancellor for an order that the costs of producing the witnesses should be forthwith taxed and paid, the motion was refused, on the ground that the

O. Morgan, Q.C. and C. Browne, for the appellant, submitted that the proper construction of the 19th rule was, that the party who wished to crossexamine must pay the expenses of the witness before he could be produced. The 19th rule was as follows:

The party producing such deponent or witness shall be entitled to demand such expenses thereof in the first instance from the party requiring such production, but such expenses shall be ultimately be borne as the court shall direct.

Dickinson, Q.C. and Begg, for the defendant, contended that the plaintiff having accepted the undertaking of the defendant, had waived the strict interpretation of the rule. The Vice-Chancellor had exercised the discretion which was vested in him in saying that this was an order which ought not to be made on an interlocutory application, but on the hearing of the cause.

Lord Justice JAMES.-I cannot agree with the order made by the Vice-Chancellor in this case. It is not a matter of discretion at all. The plaintiff is asking for that which he is entitled to have ex

debito justitiæ. The plaintiff says "I have pro

duced a witness for cross-examination," and the order says that the party producing the witness shall be entitled to demand the expenses thereof in the first instance from the party requiring such production. To say that the amount of the expenses is a matter to be determined at the hearing, is contrary to the words and against the very spirit of the rule, and to accede to such a proposition would render the rule nugatory. The point of the rule is that that question is not to be determined at the hearing, and it was therefore important that the plaintiff should in the first instance receive the costs he had been put to. Possibly the plaintiff might have said "Before this witness is cross-examined you must pay me the costs." It is frequently an objection on behalf of the witness that he will not give his testimony before receiving expenses; and that, no doubt, is the ordinary mode in which payment is enforced. In this case what occurred? The party entitled to demand to be repaid the sums he had actually paid, made a demand before the witness was sworn; and the solicitor on the other side undertook, in the name of his client, that the proper sum ascertained on taxation should be paid. That is, the money was to be paid as soon as the sum was ascertained by taxation. Neither the rights of the plaintiff, nor the liabilities of the defendant, were in the slightest degree altered by that undertaking. It seems to me the proper order would be to refer the matter back to the taxing master to say what is the proper sum to be allowed.

Lord Justice MELLISH.-I am of the same opinion. At law a witness might refuse to be examined until his expenses were paid, and the proper sum to be paid is generally forthwith settled by the court. It is admitted that the expenses were demanded at the proper time, and that they were not paid. It might be a cause of infinite expense if the examination were postponed until the costs of producing the witness were taxed. Even if no undertaking had been given, I should have thought that the costs would be taxed immediately the examination was over, but here the undertaking appears to me really to be

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an undertaking that immediately after the examination was over the costs would be paid.

Solicitor for the plaintiff, Thomas Wells.
Solicitor for the defendant, Charles Roberson.

ROLLS COURT.

Reported by G. WELBY KING and S. H. S. LOFTHOUSE, Esqrs.,Barristers-at-Law.

Tuesday, Feb. 9. Re HARPER.

Arbitration-Motion to set aside award-Informality-Lands Clauses Consolidation Act 1845 (8 Vict. c. 18), ss. 36, 37, 68; Common Law Procedure Act 1854 (17 & 18 Vict. c. 125), s. 17. A reference to arbitration under the Lands Clauses Consolidation Act 1845 is not a reference by consent within the meaning of the 17th section of the Common Law Procedure Act 1854. Ex parte Harper (29 L. T. Rep. N. S. 77, 857; L. Rep. 18 Eq. 539) commented on. Where the amount of compensation for lands alleged to be injuriously affected was referred to arbitration under the 68th section of the Lands Clauses Consolidation Act 1845, and the umpire ascertained the amount, and awarded that the company "do pay" that sum :

Held, that the latter part of the award was merely an error in form, and must be read as though it contained the additional words, "assuming the company is liable to pay," it not being within the jurisdiction of the umpire to decide the question of liability; and that the omission to set out such words did not make the award bad. MR. HARPER claimed to be entitled to compensation from the Great Eastern Railway Company, in respect of four houses in Sun-street, Bishopsgate, which he alleged to be injuriously affected by the works of the company, which were being executed under the powers contained in their special Act. The company disputed the claim, and on the 28th Jan. 1874 Harper served on the company a notice in writing, requiring them to appoint an arbitrator on their behalf, to assess the amount of compensation under sect. 25 of the Lands Clauses Consolidation Act 1845.

An arbitrator was appointed by Mr. Harper, and the company, under protest, appointed an arbitrator on their behalf. These arbitrators afterwards appointed, in writing, an umpire, who subsequently made his award.

On the application of Mr. Harper, the Master of the Rolls directed that the submission to arbitration contained in his notice of the 28th Jan. 1874, and the subsequent written appointments of the arbitrators and umpire should be made a rule of court under the 17th section of the Common Law Procedure Act 1854: (Ex parte Harper, ubi sup.)

The umpire, by his award, found that the premises were injuriously affected to the amount of 500l., and awarded that "the company do pay to Harper the sum of 500l. as and for compensation for having, in the exercise of their parliamentary powers, injuriously affected the premises."

The company now moved to set aside the award.

Fry, Q.C. and Smart, for the company, contended that the arbitrator had exceeded his jurisdiction by awarding that the company should pay the amount, and that he ought simply to have

found the amount payable in the event of the company being liable, which question would have to be tried on a special case, or otherwise. They referred to

Newbold v. The Metropolitan Railway Company, Is
C. B., N. S., 405;

Rhodes v. The Airedale Drainage Commissioners, 31 L. T. Rep. N. S. 59; L. Rep. 9 C. P. 508. Roxburgh, Q.C. and Graham Hastings, for Mr. Harper:

Sir GEORGE JESSEL.-I do not want to hear you, Mr. Roxburgh. I should like to make an observation upon my decision in Ex parte Harper (sup.) which may mislead some persons. When I decided Ex parte Harper, neither the case of Newbold v. The Metropolitan Railway Company (sup.), nor the case of Rhodes v. The Airedale Drainage Commissioners (sup.) was cited. If either, or both of those cases had been cited, I should unhesitatingly have followed them, they being decisions of a court of co-ordinate jurisdiction, much as. I should lament the narrow view which appears to me to have been taken of a very beneficial statute. In order to show what I mean by narrow view, I will say a word or two about previous legislation. By the Act 9 & 10 Will. 3, c. 15, s. 1, agreements of submission to arbitration could be made rules of court, and when made rules of court could be enforced by the court of which those agreements were made rules. By the Common Law Procedure Act 1854 (17 & 18 Vict. c. 125) great improvements were made as regards not only the form of the submission to arbitration, but the form of enforcing it and varying it, such as varying the award and so on. Unfortunately, as it appears to me, the Legislature divided the award under the Common Law Procedure Act into two classes, those made by order of the judge in an action or suit, and those made by consent; and it improved the processes relating to both those classes in a very beneficial way. I thought in Ex parte Harper, when it was before me, that the intention of the Legislature to improve the proceedings on all kinds of submissions, and on all kinds of awards, was sufficiently manifest, and that though the terms used were, in the one set of sections, "the order of the judge," and in the other set of sections "by consent," I thought a liberal and fair reading of the statute was that all kinds of submissions were to be brought within the beneficial operation of that statute, and therefore where it was not an order of a judge, it might be taken as being within the submission "by consent;" and the more so, that another clause pointed to a class of submissions which was not in the first instance subject to the jurisdiction of any particular tribunal, and by so reading it, putting the word "consent" in a large sense; that is, not only meaning the consent of the parties actually given at the time, but including consent derived from statutory enactments which said that if one did certain acts the other party might drive you to submission to arbitration. It was said in that sense, I admit a very large sense, of the word. But it appears that the Court of Common Pleas has twice decided that the word "consent" is to be read in its narrowest meaning; that it is to be confined only to those submissions which are by actual consent of the parties, and therefore does not apply to a submission under the Lands Clauses Consolidation Act, notwithstanding that those submissions may be made rules of court, because

[ROLLS.

there is no actual consent, it being so to speak a compulsory reference to arbitration. The result, therefore, of that decision is this, that the beneficial operation of the Act of 1854 which applies to every other kind of submission, does not apply to a submission which is made a Rule of Court under the Lands Clauses Consolidation Act. I regret the decision, but I shall most unhesitatingly follow it, because, as I have frequently expressed my opinion before, it is not proper for one court to refuse to follow the decision of another of coordinate jurisdiction, merely because the former thinks it erroneous. There must be something more. There must either be a current of authority of superior, or at least co-ordinate courts against it, or else it must be a recent decision inconsistent with the plain terms of the statute. I have always confined my expression of dissent to those two cases. I should certainly have done the same thing in Ex parte Harper if either of the decisions had been cited to me, although at the same time, I agree that if it had been left to me to decide in the first instance I have no doubt I should, on consideration, have taken the same view that I do now, I mean, taking the liberal construction of the statute of 1854, making its beneficial enactments apply to all kinds of submission. Passing from that, I have now to consider the application to set aside the award in the very case, and the question to be decided is, What is the meaning of the 36th section of the Lands Clauses Consolidation Act? That section enacts as follows: "The submission to any such arbitration (that is, an arbitration under the Act) may be made a rule of any of the Superior Courts on the application of either of the parties." It is not contended before me that the words "any such arbitration" are confined to the arbitrations mentioned in the prior section, nor could it be, for there are terms in the subsequent part of the statute showing that those clauses apply to arbitration under the subsequent sections, including the 68th section, which is the one in question. The 37th section goes on in this way, "No award made with respect to any question referred to arbitration under the provisions of this or the special Act shall be set aside for irregularity or error in matter of form." Therefore there are two things contemplated, one is that you may make this submisson a rule of court, and the second is that there is some power of setting it aside, which is restricted by the terms of the 37th section. Now the jurisdiction whatever it is, is conferred simply by the words making the submission a rule of court. It is admitted that before the statute of Will. 3, there was no power of setting aside the award on motion, or summary application, or in any way except by bill. The Legislature intended the Judicature to understand that by making a submission a rule of court, a new statutory jurisdiction was conferred upon the courts of law. What was the jurisdiction so conferred or intended to be conferred? I think there can be no doubt at all as to the proper answer to be given to that question. There was a statute, the well known statute of Will. 3, and no other, regulating submissions to arbitration. The terms of that statute show that where the parties agree to submit to arbitration, and that the submission shall be made a rule of court, it should be made a rule of court, and when made a rule of court, that the court should have power to enforce it or to discharge it, and compel its

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observance in any way which might be required by the nature of the case. Therefore the statute enables the parties by consent-by the express terms of the agreement to make it a rule of court. But when the submission is made a rule of court a large jurisdiction is given to the court as to dealing with such submission. Then when we find a second statute which simply provides that something which could not have been made a rule of court under the prior statute may be made a rule of court, and which evidently contemplates the power of the court to set aside the award made under that submission, does it not follow from the nature of the case that the jurisdiction intended to be conferred on the court by the words of the 36th section was the same as was conferred upon the courts by the terms of the 1st section of the statute of Will. 3 when it was made a rule of court simply by the agreement of the parties? I think it must so follow, for otherwise I have no means of ascertaining what was the nature and extent of such agreement, and I so hold. The next question is what is the practice as to the time within which application should be made to set aside an award which it is enacted by that statute shall not follow in the same way as the rest of the jurisdiction conferred. I think it ought so to follow. But, independently of that observation, if I could hold that the making the submission a rule of court conferred only a similar instead of the same, jurisdiction, I should still be of opinion I ought to follow the rule as to the period within which application may be made for setting the award aside. Upon either ground I should come to the conclusion that the present application is made too late. It has been argued that you cannot enforce an award of this kind in the sense of ordering a party to perform it because there is a condition precedent before you can enforce it. That appears to me no objection, for the same thing occurs under a submission by mere agreement. If one man makes a claim against another for damage, it is competent to the parties to agree to refer the amount of the damages to be assessed by an arbitrator, without prejudice to the question whether there is any legal liability at all, leaving that question to be decided in an action or upon a special case, and when that is decided, and not before, the award becomes enforceable. make no difference whether the condition is expressed on the face of the submission or is covered by the section of the Act of Parliament, which says that it is included in every submission. It appears to me therefore that there is no objection upon that ground. That being so, the next question is whether there is any objection to the award. The objection made is a singular one. The 68th section of the Lands Clauses Act which is the section upon which the parties have proceeded enacts that "unless the promoters of the undertaking are willing to pay the amount of compensation claimed, and shall enter into a written agreement for that purpose within twenty-one days after the receipt of a notice from the party entitled, the same shall be settled by arbitration in the manner herein provided." What is that manner? That the arbitrator shall decide the amount to be paid, as payable by the company subject of course to the question, which is not within his jurisdiction, whether there is any liability to pay at all. So that what he has to decide is, what sum if there

It can

[V.C. B.

66

is a liability the company is to pay. But the "if" is in the section, not in the award. He has nothing to do with that. He should say assuming the company is liable to pay, I award that the company do pay such a sum.' But then it is said that because he has not used the words 'assuming the company is liable to pay," his award is bad because he only says "I award that the company do pay." But that really is right. So far as he can award he does; he awards that the Company do pay if they are liable. It is not an excess of jurisdiction, it is mere form. The point that is referred to him is the amount; and we have recitals in the award showing exactly what the matter referred to him was, namely, to assess the amount payable by the company, and I am told that because he has not said " subject to the provisions of the 68th section of the Act," therefore the award is bad, though there is a recital that it is in execution of the powers of the Act of Parliament, and that notices were given, and that the reference was in pursuance of the Act. It appears to me to be very thing provided for by the 37th section, which provides "No award made with respect to any question referred to arbitration under the provisions of this or the special Act shall be set aside for irregularity or error in matter of form." This is form and form only. The arbitrator had no power to order the company to pay unless it was liable, and when he decides that they shall pay he decides subject to that which is a provision of the Act of Parliament. In my opinion the award is perfectly good. The objection if of any validity at all is merely as to matter of form, and if I had to decide this case irrespective of the question of time, I should decide it in the same way as I do now decide, that the motion must be refused with costs.

Solicitors: Shaw; E. Broad.

V.C. BACON'S COURT. Reported by F. GOULD and H. L. FRASER, Esgrs., Barristers-at-Law.

Thursday, March 4. CHURCHILL V. SALISBURY AND DORSET RAILWAY COMPANY.

Railway company-Covenant to build a station— Transfer of liability-Specific performanceInjunction.

The S. railway company, under their statutory powers, purchased land of A., and, in the conveyance of the land to them, covenanted for themselves, their successors, and assigns, to erect and maintain a station at B. The L. railway company, in pursuance of an agreement with the S. railway company, obtained statutory powers to take a lease of the S. railway with all the rights and privileges but subject to all the liabilities and obligations of the S. railway company. The L. railway company accordingly entered into possession of and worked the S. railway, but no lease was executed to them. The S. railway company became insol vent, and the L. railway company refused to build

a station at B.

Held, on a bill by A. against both companies to enforce specific performance of the covenant, that he was entitled to a decree for the erection of a station in accordance with the terms of the cove nant, and to an injunction restraining the defen