to such uses and upon such trusts in favour of his children, or remoter issue as he might by will appoint. The trusts for the term of ninety-nine years, in the events which happened, were declared to be to permit the premises to be personally occupied by Catherine J. Edwards, then the wife but now the widow of G. R. Edwards, during her life, if and so long as she should remain a widow, and be desirous of personally occupying the same, and upon her second marriage or death, then to permit the unmarried daughters of G. R. Edwards to occupy the same. Catherine J. Edwards re mained a widow, but she did not at any time express the desire of personally occupying the premises, and by an order made in an action relating to the trusts of the settlement and the trusts of the appointment, made under the appointment by will of G. R. Edwards (who died in 1894), it was declared that so long as Catharine J. Edwards remaining a widow should not reside in the cottage, the trustees of a term of years created under the said appointment were entitled to the possession of the premises, or to the rents and profits thereof, but that the declaration was without prejudice to the rights and powers (if any) of Catherine J. Edwards, in respect of the premises under the Settled Land Acts 1882 to 1890, or to her rights under the settlement to go into personal occupation of the cottage: (Re Edwards; Hope Edwards v. Edwards (1896), E. No. 374). By an indenture dated the 23rd April, 1896, the trustees of the settlement and certain of the beneficiaries under the trusts declared by the settlement, including Catherine J. Edwards (therein called the lessors), executed a lease of the cottage to a tenant for five years. The lease did not purport to operate by virtue of the provisions of the Settled Land Acts, but it was admitted that the lease was valid and binding on the lessors. Catherine J. Edwards was now desirous of exercising her powers (if any) under the said Acts as a person having the powers of a tenant for life within the meaning of the Acts. The trustees of the settlement raised the question whether in the events which had happened, she was now in a position to do so. Sect. 58, sub-sect. (1) of the Settled Land Acts 1882, provides : Each person as follows shall, when the estate or interest of each of them is in possession, have the powers of a tenant for life under this Act, as if each of them were a tenant for life as defined in this Act, namely. Clause 6: A tenant for his own or any other life, or for years determinable on life, whose estate is liable to cease in any event during that life, whether by expiration of the estate or by conditional limitation or otherwise, or to be defeated by an executory limitation, gift, or disposition over, or is subject to a trust for accumulation of income for payment of debts or other purpose. Brinton for the applicants, and also an infant tenant in tail, subject to the several terms of years. The respondent has never acquired possession of the premises within the meaning of the 58th section of the Act, and cannot now exercise the powers of the Acts; it may be that in 1901, at the expiration of the lease, she may be in a position to acquire possession, and then she will have the powers of a tenant for life. [CHAN. DIV. E. S. Ford for the respondent, Catherine J. Edwards. The respondent is entitled during her widowhood, and her estate is an estate for life within the meaning of sect. 58 (1), clause 6, of the Act of 1882; the words in the settlement as to her expressing a desire to reside in the cottage are of no effect, for if residence is necessary it is a prohibition or limitation against the exercise of her powers as tenant for life: Settled Land Act 1882, ss. 51 and 52; Re Paget's Settled Estates, 53 L. T. Rep. 90; 30 The present case is stronger than Re Paget's Settled Estates (ubi sup.). The lease executed by the respondent and others was a disposition under the Acts, and the mere fact that it does not expressly purport to be made under the Act is immaterial. Brinton in reply.-The respondent did not join in the lease as a tenant for life; however, she was a party to the lease, and has precluded herself from now expressing her desire to reside in the cottage. [E. S. Ford.-She will now express her desire though as the lease is valid, she cannot, of course, actually reside in the cottage.] By the order made in the action, Re Edwards; Hope Edwards v. Edwards, the trustees of the term of years were let into possession, and are in receipt of the rents and profits; he referred to May v. May, 44 L. T. Rep. 412. The words in sect. 58, "in possession," mean an immediate possession. See Re Haynes; Kemp v. Haynes, 58 L. T. Rep. 14; Re Strangways; Hickley v. Strangways, 55 L. T. The person contemplated by the provisions of the Act as being in a position to exercise the powers conferred must be able to say, "I am in possession": Re Hazle's Settled Estates, 52 L. T. Rep. 947; 29 Re Atkinson; Atkinson v. Bruce, 54 L. T. Rep. 403; The respondent having never intimated to the trustees her desire to occupy the cottage was never in possession. [STIRLING, J.-Does not the lease act as a release of her right to express her desire to occupy ?] It is suggested that the lease was an act of ownership. [STIRLING, J.-The lease would not be binding on remaindermen who were not parties.] CHAN. DIV.] Re HOLT; 'Re ROLLASON; HOLT v. HOLT. Friday, July 9. (Before BYRNE, J.) Re HOLT; Re ROLLASON; HOLT v. HOLT. (a) Practice-Issue between co-defendants-No counter-claim or third-party notice-Trustees-Impounding interest of married woman-Trustee Act 1893, s. 45. In an action against the executors of trustees to compel them to replace a fund lost in consequence of improper investment, the executors in their defences claimed to have the life interest of a married woman without power of anticipation, who was also a defendant, impounded under the Trustee Act 1893, sect. 45. The executors had not counter-claimed, nor had they given her any third-party notice. She put in no defence. Held, that the court would nevertheless dispose of the matter, and leave was given to the executors to apply in chambers for the purpose. By the marriage settlement of the defendant, Helen Eliza Holt (then Gossell) and her husband, John Oakes Holt, a sum of 1500l. was given to trustees upon trust to invest as therein mentioned, and to pay the income to Helen Eliza Holt during her life, for her separate use without power of anticipation; and after her death to John Oakes Holt (but only if he should not have been bankrupt) during his life, and subject thereto to the children of the marriage who, being sons, should attain the age of twenty years, or, being daughters, should attain that age or marry. In Jan. 1893 the then trustees, S. F. Rollason and George Holt, advanced the sum of 1500l. to John Oakes Holt and Helen Eliza Holt upon their joint and several promissory note, and mortgages of a policy upon their joint lives, and of certain letters patent. This advance was not authorised by the settlement, and was a breach of trust, and the security proved wholly insufficient. In 1894 J. O. Holt became a bankrupt. In the same year both the trustees died. The defendants other than Helen Eliza Holt were their legal personal representatives. The children of the marriage, who were all infants, brought this action against the representatives of the deceased trustees and their mother, Helen Eliza Holt, the tenant for life, claiming a declaration that the estates of George Holt and S. F. Rollason, the said trustees, were jointly and severally liable to make good the sum of 15007., and to have such liability enforced accordingly; and, if the defendant representatives should not admit assets, then administration of their respective estates. The representatives of George Holt put in their defence, by which they admitted that the said advance was made in the manner above mentioned, but they alleged that, if the said advance by the trustees was a breach of trust, the same was made at the instigation or request, or with the consent in writing, of the defendant Helen Eliza Holt, and with full knowledge on her part that such advance constituted a breach of trust, and that she took the benefit of such breach of trust, and they claimed that her life interest ought to be impounded by way of indemnity to the estate of George Holt. The representatives of S. F. Rollason put in a (a) Reported by R. H. DEANE, Esq., Barrister-at-Law. [CHAN. DIV. defence containing similar statements and claims. Neither of the statements of defence contained any separate counter-claim; and no third-party notice was given by either of the defendants to Helen Eliza Holt under Order XVI., r. 55. At the trial the representatives of the deceased trustees proposed to call evidence upon and submit for decision the above statements and claims made in their defences. Eve, Q.C. and MacSwinney for the plaintiffs. Badcock for the representatives of George Holt. We have a right to have the question as to impounding the life interest of Mrs. Holt disposed of by the court. We could not give a thirdparty notice, as the case does not fall within Order XVI., r. 55. We have raised the issue in the only possible way in our pleadings. We ask for an inquiry or liberty to apply in chambers as to proving our claim. A similar thing was done in Sawyer v. Sawyer, 52 L. T. Rep. 292; 28 Ch. Div. 595. See also Broadhurst v. Balguy, 1 Y. & C. C. C. 16, 32; One of the representatives appeared in person. R. J. Parker, for the executrix of S. F. Rollason, used similar arguments. T. L. Wilkinson for Mrs. Holt.-As the issue is not raised either by counter-claim or by thirdparty notice it cannot be gone into. A separate action must be brought to decide it, An inquiry I will not be directed in chambers unless founded upon some evidence, and there is none before the court upon this issue. The case of Sawyer v. Sawyer (ubi sup.) is not the same as this. In that case, although the tenant for life was a married woman, she was not restrained from anticipation. BYRNE, J. (after stating the facts).-Both the defendants say in their defences that they rely as against the tenant for life, who is a co-defendant, upon the Trustee Act 1893, sect. 45 (1). [His Lordship read the sub-sect. (1).] Now the tenant for life says that this matter cannot be disposed of because this question has not been raised either by way of counter-claim, or by third party notice under Order XVI., r. 55, that it was impossible for the court in this action to allow the question to be raised, and that the parties desiring to raise it ought to commence a new action for the purpose. At one time I was disposed to think that the tenants for life might be justified in saying: "If it is to be raised there should have been a third-party notice, let the matter stand over for that purpose, and let the costs be reserved." But counsel for both parties, for the tenant for life and for the trustees, are agreed that it is very doubtful whether Order XVI., r. 55, applies. And the only suggestion of the counsel for the tenant for life is, that a new action ought to be brought with, I suppose, pleading and delay, and all the necessary expense attendant upon such a proceeding. I should have been sorry to have been driven to such a conclusion, and I do not think that I am so driven. This is an action for the execution of the trusts of a settlement, and the equity arises by reason of the position of the parties as well as by virtue of an Act of Parlia ment, and I am of opinion that it is within the competence of the court, on such a point being suggested by the trustees, who are admittedly liable, either to direct an inquiry properly framed, or to give leave to apply as to enforcing such a claim against the tenant for life, although she is a married woman. There is some force in the observation that has been made, that it is one of those cases in which the court has to exercise a careful discretionary jurisdiction. The court has under the section of the act in question to find it just to exercise the powers conferred by it, and will inquire carefully into the circumstances; having full regard to the fact that the equity is sought to be raised against a married woman restrained from anticipation; but that is a point that can be considered and left to the judge who has to determine the form of the inquiry and the way in which the matter should be raised before the court. It may be that he will think that on the suggestion of the lady it ought to be raised by means of an adjournment into court in the first instance, and by hearing evidence vivâ voce. I do not think that any injustice would be done by taking that course, and I think that gross injustice would be done if I were to hold that the matter could not be raised except by bringing a new action, with all the consequent expense. It was said that I had no jurisdiction to make such an order; and there was some difficulty in finding a near precedent for what I propose to do; but there is the case of Sawyer v. Sawyer (ubi sup.). It appears from the report of that case that the action was commenced in Nov. 1878 by the children of Edward Sawyer and Betsy his wife against John Sawyer, the surviving trustee, and James Allwright, the executor of the deceased trustee of the marriage settlement of Mr. and Mrs. Sawyer, for the purpose of making the trustee liable for certain money, subject to the trusts of the settlement which had been lost. Mr. and Mrs. Sawyer were made parties as defendants, and, in point of fact, it was a case extremely like the present one of those cases where the tenant for life is, for sufficiently obvious reasons, not joined with the infant plaintiff in bringing the action, but is made a defendant. When the case came on for trial, Chitty, J. gave judgment, and declared that the trustees were jointly and severally liable to replace the sum which had been advanced to Mr. Sawyer; and an inquiry was directed at whose request and under what circumstances the sale and advance had been made. The counsel for Mrs. Holt says that that was not a case in which a married woman was restrained from anticipation or one coming under sect. 45 of the Trustee Act 1893. But the principle of the two cases seems to me exactly the same. If such an inquiry could be granted before that Act against a married woman not so restrained, such an inquiry can be granted now, having regard to sect. 45, against or in reference to a married woman restrained from anticipation. One other point was taken by counsel for Mrs. Holt. It was said that no such inquiry could or ought to be directed, or liberty given, unless there was some evidence upon which the court could act as a foundation for the inquiry. I am not sure that, on the suggestion of a defendant trustee made liable for breach of trust, there would not be jurisdiction without anything more, the court taking care as to costs that the inquiry should be [Q.B. DIV. at the risk of the person requesting it. But, in this case, we have this allegation in the statement of claim. [His Lordship read the paragraph setting forth the details connected with the advance made to Mr. and Mrs. Holt as above stated.] That allegation is admitted by the defendants, and I think there is, therefore, sufficient evidence of some consent in writing, or instigation, or request, on the part of the tenant for life. It is not complete evidence, but sufficient to enable the court to see that it is not a mere imaginary matter, but that it is a case in which some evidence will be forthcoming to show request on the part of the person who herself joins in giving the promissory note, and covenant, and security for the breach of trust which has been committed. It is sufficient evidence that there may be a case against the lady to enable me to do what I propose doing, namely, to give the representatives of the deceased trustees liberty to apply in chambers in reference to enforcing such right, if any, as they may have against the tenant for life, and to the proper method of determining the matter, or words to that effect; and this part of the order may be prefaced with the words, "and at the request of the trustees' representatives give them liberty to apply." Solicitors: T. G. Bullen; Crowders and Vizard, for Stratton and Sons, Wolverhampton; Sharpe, Parker, Pritchards, and Barham, for Ryland, Martineau, and Co., Birmingham. ERRATUM.-Re Lambert; Moore v. Middleton (ante, p. 753).-Last line in 1st col. should read: "The testator's widow died in the year 1895," QUEEN'S BENCH DIVISION. Saturday, June 19. (Before BRUCE, J.) SIMMONS v. UNDERWOOD. (a) Ejectment-Notice to quit-Agreement for three years-Tenant from year to year-Commencement of tenancy. The defendant went into possession of certain premises under an agreement for three years by which he agreed to pay a yearly rent of 501., such rent to commence as from the 9th May, 1891, and the first half-quarter was to become due and payable on the 24th June, and after that on the usual quarter days. At the end of the three years he stayed on, and continued to pay the rent quarterly as before. On the 28th Sept. 1896 notice to quit was served on him for the 25th March, 1897. Held, that the notice to quit was bad, as the tenancy did not commence on the 25th March. THIS was an action of ejectment tried as a short cause by Bruce, J., without a jury. The plaintiff claimed possession of hereditaments, a dwelling-house, stable, and premises, at Willesden, in the county of Middlesex, and known as No. 94, Tubbs-road, Harlesden, which were held of him as landlord by the defendant under a tenancy from year to year, which tenancy was duly determined by notice to quit expiring on the 25th March 1897. The tenant, the defendant in the present action, entered into possession of the premises under an agreement in writing made between him and the (a) Reported by W. DE B. HERBERT. Esq., Barrister-at-Law. Q3239 Q.B. Div.] LEWELLYN AND OTHERS v. VALE OF GLAMORGAN RAILWAY CO. plaintiff's predecessor in title, one David Cross. That agreement was dated the 28th April, 1891, and by it the premises were let to the defendant for the term of three years certain, at a yearly rent of 50l., such rent to commence as from the 9th May, 1891, and this first half-quarter was to become due and payable on the 24th June, 1891, and after that on the usual quarter days. The right was given the defendant of taking a lease for seven years, but he did not avail himself of this. After the expiration of the three years he continued in occupation of the premises, paying the same rent quarterly. On the 28th Sept. the following notice to quit was given : To Mr. Thomas Underwood, 94, Tubbs-road, Willesden, N.W.-I hereby require you to quit and deliver up on the 25th day of March, 1897, the possession of the messuage and premises, No. 94, Tubbs-road, Willesden, in the county of Middlesex, with the stables and appurtenances thereto belonging, which you now hold of Mr. Charles Simmons.-Dated this 28th of Sept. 1896.-THOS. HARLEY JONES, 20, Finsbury Pavement, E.C., solicitor and agent for the said Mr. Charles Simmons. There being no mention of the time when the tenancy was to commence, the question arose whether the term began on the 25th March or the 24th June. Vesey Knox for the plaintiff.-Where there is no mention of the date the tenancy is to commence, it must be taken to begin on the quarter day before the entry into possession: Wadmore v. Selwyn, M.S. Report (Adams on Ejectment, p. 107). F. Low for the defendant.-The notice to quit is bad. The tenancy began on the half-quarter day, or on the half-quarter day after entry into possession. The notice to quit should have been for one of those dates, viz., the 9th of May or the 24th of June: Doe d. Holcomb v. Johnson, 6 Esp. 10; Wesley v. Walker, 38 L. T. Rep. 284. BRUCE, J.-I am of opinion that the notice to quit was bad, and my judgment must be for the defendant. Solicitor for the plaintiff, T. Harley Jones. Solicitors for the defendant, Speechly, Mumford, Langdon, and Rogers. May 31 and July 3. (Before WRIGHT, J.) LEWELLYN AND OTHERS v. THE VALE OF GLAMORGAN RAILWAY COMPANY. (a) Railway-Obstructing road-Penalty-Railway Clauses Consolidation Act 1845 (8 & 9 Vict. c. 20), 88. 53, 54, 55. This was an action brought to recover penalties under sect. 54 of the Railway Clauses Consolidation Act 1845. The plaintiffs were the owners in fee, and the tenant from year to year of certain fields along the northern side of which ran an occupation road. The railway company under their powers purchased part of a field, and made a cutting through it which completely severed the road and rendered it impassable, and (a) Reported by W. DE B. HERBERT, Esq., Barrister-at-Law. [Q.B. DIV. they did not cause a sufficient or any other road to be made instead of the occupation road. This remained so for three months, at the end of which time they made a temporary bridge. Held, that the plaintiffs could recover the penalties, and, semble, that the company would be liable for the whole penalties to every person who owns any part of an obstructed road. THIS was an action brought by the plaintiff Robert Lewellyn, who was tenant from year to year of certain fields at the Brackla Bridgend Coity, in the county of Glamorgan, and by George Farewell Jones and John Edward Jones, the owners in fee of the same, to recover penalties under sect. 54 of the Railway Clauses Consolidation Act 1845, for obstructing, interrupting, using, and interfering with an occupation road, without causing another sufficient one to be made in lieu thereof. This occupation road was on the northern side of and immediately adjoining the fields in question, and had for many years been in existence, and it ran from Bridgend on the west, and on the northern side of the plaintiff's fields and to other fields on the east thereof. This road was not repairable by the inhabitants at large, but was and for many years past had been used by the owners and tenants (including the plaintiffs) of the lands adjoining the same, and the soil of the road is vested in the owners of the lands adjoining it. The railway company was incorporated by a special Act, and with it was incorporated the Railway Clauses Consolidation Act 1845. By their Act they were empowered to compulsorily purchase lands for making the railway. On or about the 2nd July 1895, the railway company gave to the plaintiffs notice to treat for the purchase of a portion of a field of the plaintiffs, and this piece of land was bounded on its northern side by this occupation road, and the defendant company entered and executed certain works on this land, including a cutting along it. This cutting completely severed the occupation road. The company did not prior to cutting through and severing this road cause a sufficient or any road to be made instead of the road so interfered with, as they were bound to do under sect. 53 of the Railway Clauses Consolidation Act 1845. The road was quite impassable by the plaintiffs and other persons who were entitled to use it from the 9th May 1896 to the 3rd Aug. 1896, by which date the company had erected a temporary bridge over the cutting through the road. The road was impassable for eighty-five days. By sect. 53 of the Railway Clauses Consolida tion Act 1845: If, in the exercise of the powers by this or the special Act granted, it be found necessary to cross, cut through, raise, sink, or use any part of any road, whether carriage road or horse road, tram road or railway, either public or private, so as to render it impassable for, or dangerous, or extraordinarily inconvenient to passengers or carriages, or to persons entitled to the use thereof, the company shall, before the commencement of any such operations, cause a sufficient road to be made instead of the road to be interfered with, and shall at their own expense maintain such substituted road in a state as convenient for passengers and carriages as the road so interfered with, or nearly so as may be. Q.B. Div.] By sect. 54 of the same Act: HUNT v. HUNT. If the company do not cause another sufficient road to be so made before they interfere with any such existing road aforesaid, they shall forfeit twenty pounds for every day during which such substituted road shall not be made after the existing road shall have been interrupted; and such penalty shall be paid to the trustees, commissioners, surveyor or other person having the management of such road, if a public road, and shall be applied for the purposes thereof, or in case of a private road the same shall be paid to the owner thereof; and every such penalty shall be recoverable with costs by action in any of the superior courts. By sect. 55 of the same Act: If any party entitled to a right of way over any road so interfered with by the company shall suffer any special damage by reason that the company shall fail to cause another sufficient road to be made before they interfere with the existing road it shall be lawful for such party to recover the amount of such special damage from the company, with costs, by action on the case in any of the superior courts, and that whether any party shall have sued for such penalty as aforesaid or not, and without prejudice to the right of any party to sue for the same. C. A. Russell, Q.C. and E. F. Buckley for the plaintiff. C. A. Cripps, Q.C. and Kenyon Parker for the defendant railway. July 3.-WRIGHT, J.-[His Lordship, after reading the sections of the Act, continued:] The plaintiff is owner of lands situated in a rural district, and bounded on one side by a road which is not a public highway, but is used by the owner of the lands on either side of the road. There is nothing to show to whom the soil of the road belongs, and it appears to me that the ordinary presumption of ownership to the medium filum is applicable. The plaintiff, therefore, is owner of one-half of the road by the side of his land, and he has a private right of way along the other half. The defendants, in constructing their railway, temporarily interfered with and obstructed the road without providing a substituted way. They have therefore contravened sect. 53 of the Act, and they have prima facie incurred the penalty imposed by sect. 54, and the only question is, whether the plaintiff is entitled to recover the penalty, or any and what part of it. The matter is complicated by the fact that the owner of the other half of the road is not a party to the action, and has neither made nor waived claim any against the defendants. It is argued for the defendants that the statute imposes a single penalty in respect of the whole width of the road, and that the language of sect. 54 is not applicable to a case in which the whole width of the road is not owned by one person. It is pointed out that there is no machinery for apportionment, and that if the owner of each half has a right of action, and sues separately, either the company must be liable to two whole penalties which does not, it is said, seem to be intended, or there must in each action be an apportionment at the instance of one owner without the presence of the other. If, however, the plaintiff can recover anything, I am in this case relieved from the difficulty of ascertaining the quantum, because the parties have agreed that, if he is entitled to recover anything, he is to have 150l. In my opinion, he is entitled to recover something in respect of his own half of the road. Suppose the defendants [Q.B. DIV. had obstructed that half only. In that case it seems to me that they would have been liable to the plaintiff for the whole penalty, because they would have made the road useless to the plaintiff. If so, the plaintiff cannot lose his right merely because someone else has been wronged. I am inclined to think that the company are liable for the whole penalty to every person who owns any part of the obstructed road. This must apparently be so if the road is regarded longitudinally. Suppose the company break up or stop up a mile of road each 100 yards of which is owned by a different person. I cannot think that they would incur only a single penalty for the benefit of one owner, or no penalty at all. Judgment for plaintiff for 150l. and costs. Solicitors for the plaintiffs, Soames, Edwards, and Jones, for Randall and Co., Bridgend. Solicitors for defendants, Denning, Hollman, and Co., for Denning and Handcock, Cardiff. Saturday, July 3. (Before WRIGHT, J.) HUNT v. HUNT. (a) Husband and wife-Separation deed-Covenant A husband and wife were married in 1868. In THIS was an action brought by a wife against X her husband to recover damages for breach of contract under an indenture dated the 24th Nov. 1880, and also for an injunction to restrain the defendant, his solicitors or agents, from continuing or prosecuting certain proceedings commenced by him in the District Court of the County of El Paso, in the State of Texas, in the United States of America, against the plaintiff for a dissolution of their marriage. The parties were married, on the 18th June 1868, and there were four children of the marriage. In Oct. 1880, owing to the conduct of the husband, the wife instituted proceedings in the Divorce Division of the High Court of Justice for a judicial separation. These proceedings. were compromised, and the parties entered into a deed of separation. By that deed the husband covenanted that, notwithstanding her coverture, his wife might reside and live apart from him and free from his control and interference, and that he would not seek to compel her to live with him, and that he would not in any way molest her or institute any legal proceedings to compel her to cohabit with him. (a) Reported by W. DE B, HERBERT, Esq., Barrister-at-Law. |