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HIGH COURT.

Chan. Div. Stirling, J.

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March 26; April 28. BULKELEY v. STEPHENS. (a.) Apportionment-Tenant for life-Trust for distribution after death of tenant for life-Sale by order of the court--Apportionment Act (33 & 34 Vict. c. 35), 88. 2, 3, 4, 5.

Where stock is sold by trustees after the death of a tenant for life the Apportionment Act, 1870, will apply as to any dividends actually received by the trustees. But if the stock be sold cum dividend, so that no dividend actually comes to the hands of the trustees, the Apportionment Act, 1870, will not apply directly.

As a general rule the court will not order apportionment in respect of the increase of price caused by the prospect of a dividend, for the reasons laid down in Scholefield v. Redfern, 11 W. R. 453, 2 Dr. & Sm. 173, and Freeman v. Whitbread, 14 W. R. 188, L. R. 1 Eq. 266.

In special cases, however, apportionment will be directed. So where the court was of opinion that on the construction of the will the trust for distribution ought to have been performed by handing over the trust investments in specie on the death of the tenant for life, apportionment was directed in respect of the enhanced price of certain stock which had been sold cum dividend under order of the court.

Lord Londesborough v. Somerville, 19 Beav. 295, 3 W. R. Ch. Dig. 5; and Bulkeley v. Stephens, 3 N. R. 105, 10 L. T. N. S. 225, 12 W. R. Ch. Dig. 3, followed.

Summons.

This was an application by the trustee of the estate of the late Mr. Lyne Stephens for liberty, out of funds in his hands representing income of the testator's residuary estate, to pay to the legal personal representative of Mrs. Lyne Stephens, deceased, the late tenant for life of such residuary estate, a proportionate part of certain dividends in a sum of £130,000 Bank Stock, and upon a sum of £12,000 Royal Exchange Corporation Stock.

As to the Bank Stock, it was admitted that the said proportionate part of the dividends was payable to Mrs. Lyne Stephens' estate.

The facts as regards the Royal Exchange Corporation Stock were these.

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dends. The Apportionment Act of 1870 is applicable to such a case, as the word "dividends occurs in section 5. They ought to be divided between the tenant for life and the remainderman in the usual way. The Royal Exchange Stock rose and fell considerably in 1894-95.

They referred to Freeman v. Whitbread, 14 W. R. 188, L. R. 1 Eq. 266; Bulkeley v. Stephens, 3 N. R. 105, 10 L. T. N. S. 225, 12 W. R. Dig. 3; Bostock v. Blakeney, 2 Bro. C. C. 653.

Buckley, Q.C., and Baines, for the remaindermen.— The Apportionment Act does not apply: In re Clarke, Barker v. Perowne, 29 W. R. 730, 18 Ch. D. 160. The words of the Act are not exhaustive, and only apply to dividend-paying investments. The Act does not apply to a case where a dividend is paid in the purchase money, and the trustee never receives it, in fact, at all. Lord Londesborough v. Somerville, was a very special case. [STIRLING, J.-The Act introduces the difference that it deals with these

things on the principle of interest for money lent. That is what the Vice-Chancellor called the abstract principle.]

They referred also to Scholefield v. Redfern, 11 W. R. 453, 2 Dr. & Sm. 173.

Hastings, in reply.-[STIRLING, J.-It is clear from Scholefield v. Redfern that in case of a mortgage there would be apportionment, but not on a change of investments. It was to meet that, that the Act was passed. Freeman v. Whitbread is exhaustive, and during the twenty-five years the Act has been in operation has never been departed from.] The Act now gives me a right which before was only an equity.

Cur. adv. vult.

April 28.-STIRLING, J., after stating the facts as above set out, continued:-As regards the Bank Stock the dividends came to the hands of the trustees, and it is not disputed that the legal personal representative of Mrs. Lyne Stephens is entitled to a proportionate part of what came to the hands of the trustees. poration is a public company within section 5 of the Neither is it disputed that the Royal Exchange CorApportionment Act of 1870, and that the interim dividend actually came to the hands of the trustees, so as to make it apportionable under the Act, and therefore that a proper share ought to be paid to the legal personal representative of the tenant for life.

Then as regards the dividend which was declared in

The testator, who died in 1860, by his will dated 1851, gave his residuary estate to trustees upon trust for his wife for life, and after her death to pay, trans-June, 1895, it is contended on behalf of such legal fer, and assign his residuary estate, and the stocks, funds, and securities upon which the same should be invested, unto and among such of the issue of four of the testator's uncles therein named as should be living at his decease.

Mrs. Lyne Stephens died on the 2nd of September, 1894, and the £12,000 Royal Exchange Corporation Stock was, in pursuance of an order of court dated the 12th of November, 1894, sold on the 29th of January, 1895.

On the 31st of December, 1894, an interim dividend of 4 per cent. was declared on this stock, and in June, 1895, a 10 per cent. dividend was declared for the year ending the 31st of December, 1894.

The question now arose whether the legal personal representative of the tenant for life was entitled to participate in these dividends.

Hastings, Q.C., and Methold, for the summons.The legal personal representative of Mrs. Lyne Stephens is apparently entitled to share in the divi

(a.) Reported by J. I. STIRLING, Esq., Barristerat-Law.

personal representative that the price received by the trustees includes that dividend, and that as much thereof as represents that dividend down to the death of the tenant for life ought to be paid to him. From an abstract point of view there is much to be said in favour of this contention; but there is considerable difficulty in its practical application. This is not the first time the point has been considered by the court: at least, a similar one as to apportionment of income on change of investment has been twice considered, first in Scholefield v. Redfern, and secondly in Freeman v. Whitbread. In the former case the Vice-Chancellor says (2 Dr. & Sm., at p. 182): "There is another question of a peculiar kind, and one which is novel to The point will be best explained by putting an example. Suppose part of the testator's property to consist of certain American stock, bearing interest or dividends payable at half-yearly periods, say January and July, and the trustees sell it in order to invest the proceeds in Consols. If they sell it at any other time than precisely the period at which a dividend had just accrued, the money realized by the sale is so much more in proportion to the time which has

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elapsed since the last dividend day. Therefore the amount realized by the sale is compounded partly of the value of the stock itself and partly of the value of that proportionate part of the current half-year's dividend which may be considered to have accrued since the last dividend day. It is contended that the tenant for life ought to have this latter portion as income. Now, it is certain that in the multitude of cases of administration of estates in modern times, when similar directions have been given by testators, the court has never been in the habit of administrating any such equity. When we consider a little further it is obvious that if the tenant for life is to have something out of the sale money as representing income when the trustees invest the money, unless they invest it on the very day on which the dividend has just accrued due, the same equity ought to be administered the other way and we ought to take from the tenant for life something of his next dividend on the Consols and add that to the capital, in order to make things equal as between him and the remainderman. It is clear that if there is an equity one way, there is an equity the other way. It is obvious that the reason why such equity on either side has never been administered habitually by this court is that by attempting it a grievous burthen would be imposed upon the estates of testators by reason of the complicated investigation which it would lead to. The gain to either party would be far more than counterbalanced by the expense which might be incurred in a complicated case, and for that reason, no doubt, the thing has never been done. I will not be the first to introduce the practice."

In the second case of Freman v. Whitbread the Vice-Chancellor delivered a long and elaborate judgment in which the subject may be said to be exhausted. I simply refer to it because it amplifies the reasoning contained in the first case. Both these decisions were before the Apportionment Act, 1870, and it is necessary therefore to consider the effects of that Act.

Section 2 provides, among other things, that dividends "shall, like interest on money lent, be considered as accruing from day to day and shall be apportionable in respect of time accordingly." So far as that is concerned, I think the judgment of the Vice-Chancellor is not affected, because at the conclusion of Scholefield v. Redfern he says: "But it was suggested that, though this may be so with regard to stock the dividends of which are payable at the end of each successive half-year, a different rule is applicable to the case of railway debentures and other property of that description, yielding interest de die in diem. If anything is received as interest, that interest will belong to the tenant for life; but if the debenture is sold for a given sum, that sum must be treated as capital." But the matter does not stop there. The Act not merely declares that they shall be apportionable, but provides for the time of payment and the remedies for their recovery. Section 3 runs : "The apportioned part of any such rent, annuity, dividend, or other payment shall be payable or recoverable in the case of a continuing rent, annuity, or other such payment when the entire portion of which such apportioned part shall form part shall become due and payable, and not before ;; and in the case of a rent, annuity, or other such payment determined by re-entry, death, or otherwise when the next entire portion of the same would have been payable if the same had not so determined, and not before," Section 4: "All persons and their respective heirs, executors, administrators, and assigns, and also the executors, administrators, and assigns respectively of persons whose interests

HIGH COURT.

determine with their own deaths, shall have such or the same remedies at law and in equity for recovering such apportioned parts as aforesaid when payable (allowing proportionate parts of all just allowances) as they respectively would have had for recovering such entire portions as aforesaid if entitled thereto respectively

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Now, it is said that the trustees have received the dividends within the meaning of those sections, so that they are liable to account to the legal personal representative of the tenant for life for a proportionate part. But in point of fact they were received by the purchaser, and it is admitted by the applicant that the stock having been sold with the dividend the legal personal representative has no rights against the purchaser. What the trustees have received is purchase money. The stock was sold cum dividend. This is not an actual dividend. These sections therefore do not apply directly, and therefore the legal personal representative is entitled to insist as against the trustees on an equity merely, which is what the Vice-Chancellor declined to enforce in the cases before him. The reasons given by him were, first, the absence of any practical scheme for giving effect to it, and, second, the great burden it would put on trust properties. The first applies here, and no case has been cited in which the effect has been so given. I have inquired as to the practice in the registrar's office, and I am informed by Mr. Lavie that no such practice is recognized in dealing with ordinary funds directed to be sold on the death of the tenant for life. As to the second reason, the burden is not so great as it would be on a change of investment, because, first, the alleged right would arise on re-investment and both as to the original investment and the re-investment, and, secondly, because a change of investment is different from the distribution of the trust fund. Still the burden would be considerable. If the legal personal representative were to receive so much of the purchase money as represents the value of the proportionate part of the dividend, it would mean that the dividend would have to be treated as if it were actually paid. This might in many cases entail considerable labour, and the evidence of stockbrokers and other experts would be necessary in order to ascertain the price at which the stock would be sold ex dividend, and the difference between that and the actual price would represent the dividend. It would become necessary to obtain and to preserve such evidence. And if, as in this case, the tenant for life were dead and had a legal personal representative, other difficulties might possibly arise. The consequence is that in many cases they would have to come to the court for protection. Again, in cases of companies payment would almost always be delayed or the amounts might not in certain circumstances be payable for a long time.

Looking at all these circumstances, I am not prepared to introduce any novel practice on the sale of shares consequent on the death of the tenant for life. It is, however, upon the whole clear that in some cases, such as those dealt with by the Vice-Chancellor, effect has been given to such a scheme under special circumstances-e.g., as in Lord Londesborough v. Somerville, and Bulkeley v. Stephens. I think here that it is a material circumstance that the trust is on the death of the tenant for life "to pay, transfer, and assign my ordinary residuary estate, and the stocks, funds, and securities upon which the same shall be invested unto and amongst a particular class of beneficiaries. There is also a trust for sale, but that is varied by a power to retain in existing investments for so long as his trustees in their absolute discretion shall think fit.

HIGH COURT.

BULKELEY v. STEPHENS.-REG. v. SMITH AND KERR.

But it occurs to me that the trust or power for sale is not exerciseable at the death of the tenant for life, but that the proper mode then for exercising the trust is to transfer in specie the stocks, funds, and securities to the beneficiaries. The Apportionment Act would have applied directly if that had been done on the death of the tenant for life, and the legal personal representative would have been entitled to a proportionate part. But it so happened in this case that the beneficiaries were very numerous, the estate being divided into ninety-thirds, and consequently the trust cannot be carried out in that way. If, however, it had been so carried out, the duty of the trustees was to transfer, so that the legal personal representative of the tenant for life should be able either directly or through the intervention of the trustees to obtain payment of the proportionate part of the dividend to which he is entitled.

Now, the order of the 12th of November, 1894, was made, and I doubt not properly made, for the sale and division of the proceeds of the estate. It was made in the interest and for the benefit of the

persons who then became entitled to receive that estate. But it was made in the absence of the legal personal representative of Mrs. Lyne Stephens. If he had been present, it seems to me it would have been urged by him that her estate ought not to be placed in a worse position than if the trust had been carried out in the proper mode by transfer. That being so, I do not see why, as the estate is not finally wound up, he may not still assume the same right; and under these circumstances I have come to the conclusion that the application ought to be acceded to, assuming that the parties are all satisfied that the proper sum which would have been allowed on such an application is that which is mentioned in the

summons.

Order accordingly.

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REG. v. SMITH AND KERR. (a.) Justices-Jurisdiction-Adulteration-Milk sold with a false warranty-Prosecution of offenders-Sale of Food and Drugs Act, 1875 (38 & 39 Vict. c. 61), 88. 6, 10, 13, 20, 27-Amendment Act, 1879 (42 & 43 Vict. c. 30), s. 3.

K., a Rutlandshire farmer, contracted to sell milk to a dairy company whose premises were situate at Finchley-road, London, but not within the district of the C. metropolitan police court. K. consigned a churn of milk with a written warranty attached to the churn, at Oakham to the dairy company in the Finchley-road. The dairy company resold the churn of milk to a London hospital whose premises were situate within the district of the C. police court. An inspector of that district procured (under section 3 of the Food and Drugs Act, 1879) at the premises of the hospital, a sample of the milk, and obtained an analysis of it by the analyst of that district, who certified that it was adulterated with water. Proceedings were instituted by the inspector in the C. police court against K. for an offence under section 27 of the Sale of Food and Drugs Act, 1875, by reason of his having given a false warranty as to the milk

Held, that the magistrate of the C. police court had no jurisdiction, as the offence alleged against K. had not been committed within the district of that court.

(a.) Reported by ERSKINE REID, Esq., Barristerat-Law.

HIGH COURT.

Fortune v. Hansom, ante, p. 431, [1896] 1 Q. B. 205, commented on.

Horace Smith, Esquire, one of the metropolitan This was a rule nisi for a mandamus calling upon police magistrates, sitting at Clerkenwell Police Court, to show cause why he should not hear and determine the matter of two summonses taken out by Patrick Meruagh, an inspector of nuisances for the parish of St. Mary, Islington, against David Kerr, for giving a false warranty on the 14th and sold by him to the Manor Farm Dairy Co. (Limited), 26th of June, 1895, in respect of two churns of milk contrary to the provisions of section 27 of the Sale of Food and Drugs Act, 1875.

The facts were these. The prosecutor on two occasions procured, under section 3 of the Sale of Food and Drugs Amendment Act, 1879, samples for by the Manor Farm Dairy Co. (Limited) to the Great the purpose of analysis of milk in course of delivery Northern Central Hospital, at their premises in the Holloway-road, in the parish of St. Mary, Islington. pital in the Clerkenwell police district, and the The samples were taken at the premises of the hosanalyses were made by the analyst for that district. On analysis it was found that the two samples respectively, of added water; and the analyst so cerwere adulterated with 5 per cent. and 14 per cent. tified.

at the Clerkenwell Police Court, under section 6 of Upon this certificate proceedings were instituted the Sale of Food and Drugs Act, 1875, against the Farm Dairy Co.

At the trial the company proved that the milk was as received by them at East Finchley-road Station from their vendor, Kerr, a farmer living at Oakham, Rutlandshire, who supplied it to them under a contract with a written warranty attached to each churn as to the purity of the milk. The magistrate (Mr. Bros) dismissed the summons against the Dairy company, and granted one against their vendor, Kerr, for selling milk with a false warranty, contrary to the provisions of section 27 of the Act of 1875, which provides that "every person who shall give a false warranty in writing to any purchaser in respect of an article of food, shall be guilty of an offence and be liable to a penalty." This summons came on for hearing before Horace Smith, Esquire, the sitting magistrate at Clerkenwell Police Court, on the 20th of July, and he refused to hear and determine the charge, on the ground that he had no jurisdiction to do so, because (1) the warranty was attached to the churn at the farm in Rutlandshire, and the milk delivered by the farmer Kerr to the company at East Finchley-road Station, both being places out of the jurisdiction of that court; and (2) the person prosecuting was not a person competent

to take out a summons under section 20 of the Act of

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1875, which provides that "when the analyst, having analyzed any article, shall have given his certificate of the result, the person causing the analysis to be made may take proceedings for the recovery of the penalty before any justices having jurisdiction in the place where the article was actually delivered to the purchaser.”

A rule nisi to compel the learned magistrate to hear and determine the matter having been obtained:

Toller, in showing cause against the rule being made absolute, submitted that the certificate of the analyst was no evidence against Kerr. To decide who was the "purchaser," sections 20 and 21 of the Act of 1875 must be read together.

He cited Reg. v. Titterton, 43 W. R. 603, [1895] 2 Q. B. 61, and Buckler v. Wilson, [1896] 1 Q. B. 83. Macmorran, Q.C., in support, referred to Harrison

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v. Richards, 45 J. P. 552, which was followed in
Rouch v. Hall, 29 W. R. 304, 6 Q. B. D. 17, and
Rolfe v. Thompson, [1892] 2 Q. B. 196, 40 W. R.
Dig. 6.
Cur. adv. vult.

The judgment of the court was delivered by HAWKINS, J., who, after stating the facts, said :It is beyond doubt that, in fact, neither the sale nor warranty nor the delivery to the dairy company was made within the limits of the Clerkenwell Police Court's district, and it was not suggested that any sample was taken of the milk at the place or during the course of delivery to the dairy company. Unless some enactment can be found altering the general rule of law that an offence must be prosecuted before a tribunal having jurisdiction to entertain it within the county or place in which it has been committed, the magistrate at the Clerkenwell Police Court had no jurisdiction over it. It is said, however, that such an enactment is to be found in section 20 of the Act of 1875. We are not of that opinion.

Before I discuss that enactment I desire to point out one or two matters essential to be borne in mindnamely, the offence charged against the dairy company was of a totally different character from that preferred against Kerr; that against the dairy company was framed under section 6 of the Act of 1875 for selling to the prejudice of the hospital committee, milk which was not of the nature, substance, and quality of the article demanded by the purchasers. Under the circumstances stated, no such offence could possibly be charged against Kerr, for he neither sold nor delivered any milk to the hospital committee. The information against Kerr was framed under section | 27 of the same Act, for giving a false warranty in writing to his purchasers, the dairy company, in respect of the milk sold by him to them.

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Let me now call attention to the words of section 20 of the Act of 1875: When the analyst, having analyzed any article, shall have given his certificate of the result, from which it may appear that an offence against some one of the provisions of this Act"-I think this section must be read as if the words "or of section 3 of the Act of 1879" were inserted here" has been committed, the person causing the analysis to be made may take proceedings for the recovery of the penalty herein imposed for such offence before any justices in petty sessions assembled having jurisdiction in the place where an article or drug sold was actually delivered to the purchasers"-I think that this part of the Act must be read as if the words "or the sample of milk was procured as mentioned in section 3 of the Act of 1879" were inserted here" in a summary manner." It has been held that the certificate of the analyst is a condition precedent to a prosecution under this section (see Peart v. Barstow, 44 J. P. 699, and Smart v. Watts, 43 W. R. 379, [1895] 1 Q. B. 219), and it seems to me not open to question that the words "When the analyst, having analyzed any article," at the commencement of the section, must be interpreted to mean the official analyst appointed under section 10 as analyst of all food and drugs sold within the district for which he is appointed; and the inspector of nuisances appointed for any district or place can only require the analyst (if there be one) for that district, to analyze the suspected samples and give his certificate under section 13. We take it, therefore, that an inspector of nuisances could neither insist upon procuring a sample in a district for which he is not appointed, nor could an analyst not appointed to act for such district give any valid and effectual certificate of the result of his analysis under section 13. Section 18, which, with reference to the

HIGH COURT.

schedule to the Act, prescribes the form of the certificate, evidently contemplates an analysis by the local analyst, of the article analyzed as it is at the time it is delivered to him. Then comes section 20, the section under discussion, and, immediately following it, section 21, which enacts that at the hearing of the information in such proceeding (i.e., the proceedings mentioned in section 20) the production of the certificate of the analysis shall be sufficient evidence of the facts therein stated, unless the defendant shall require that the analyst shall be called as a witness.

All these provisions point, in our opinion, to the intention of the Legislature to provide local inspectors with power to obtain by local analysts analyses of questionable samples of articles of food or drugs sold within their districts, and to provide for the prosecution of offenders against the Act before justices of the peace having jurisdiction in the place where adulterated articles are actually delivered to the purchasers; but it never could have been in the contemplation of the Legislature to give justices jurisdiction to deal with persons offending against the Acts in other parts of the United Kingdom out of their jurisdiction. There are certainly no words expressive of such an intention to be found in section 20 or in any other section of the Acts either of 1875 or 1879. In this case no act tending to establish a violation by Kerr of the statutes I have discussed occurred within the jurisdiction of the Clerkenwell Police Court. The warranty was made at Oakham, the delivery by Kerr to the dairy company at Finchley. There was no sample of the milk taken by any inspector in the course of its delivery to the dairy company, and therefore there could be no such sample to analyze, and, even had there been, no analysis was made by any analyst appointed for the district of Finchley, and the analysis of a sample taken after the milk had been actually delivered to and received by the dairy company in a district where Kerr never had any control over the milk, and of which he had no knowledge, could not affect him, and the certificate given as the result of the analysis of such a sample could not, in our opinion, be any evidence as against Kerr. Moreover, though the certificate may have been evidence as against the dairy company that the sample taken at St. Mary's, Islington, while in the course of delivery by them to the hospital was adulterated, there was nothing on it from which it appeared that the offence of giving a false warranty was committed by the defendant Kerr at Oakham or anywhere else.

Under all the circumstances, we are at a loss to see any ground for the contention that the Clerkenwell magistrate had any jurisdiction over the charge against Kerr. It is only for such offence as appears by the certificate that any prosecution can be instituted under section 20. The rule, therefore, must be discharged.

I wish before concluding to observe, with regard to the form of the certificate, that the analyst's duty is merely to analyze and report the result of the analysis, and he has no right, as I think, to report extraneous facts unconnected with the analysis, and if he does so his certificate would, in my judgment, be inadmissible_as evidence of such facts. In so far as it states in due form the result of the analysis the certificate is sufficient for the justices to act upon, unless the defendant requires the analyst to be called as a witness, or unless other evidence is adduced before the justices which induces them to come to the conclusion that it is incorrect. The expression used by me in my judgment in Fortune v. Harson, ante, p. 431, [1896] 1 Q. B. 205, that the certificate is "practically conclusive was intended only to convey the impres

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Landlord and tenant Compensation - Allotments Cottage garden-Holding used by seedsman for trade purposes-Allotments and Cottage Gardens Compensation for Crops Act, 1887 (50 & 51 Vict. c. 26), 85. 4, 5. A plot of land occupied by a seedsman and used by him for the business of a seedsman is not an allotment or holding within the meaning of section 4 of 50 & 51 Vict. c. 26, and the occupier is not entitled to compensation under section 5. The Act only applies to poor persons who cultivate their gardens for food or pleasure. Case stated.

This was an appeal on a case stated from a decision of the justices for the borough of Bedford.

At a petty sessions held at Bedford on the 6th of May, 1895, an application was made by the appellant, G. Cooper, against Mary Pearse, the respondent, under the provisions of the Allotments and Cottage Gardens Compensation for Crops Act, 1887, for the appointment of an arbitrator in respect of a claim which he had made for compensation in respect of crops growing upon land which he held of the respondent as tenant, the tenancy of which expired on the 25th of March, 1895, and for labour expended upon and for manure applied to the holding since the taking of the last crop therefrom.

The following are the facts as found in the case stated.

The appellant was a seed merchant, carrying on business in the borough of Bedford, and up to the 25th of March, 1895, was tenant of some land, being less than an acre in extent, of which the respondent was the owner. The tenancy expired by notice to quit on that date. In the agreement between the parties the land let by the respondent to the appellant was described as "garden land," and the tenancy was stated to be "from half-year to half-year, commencing on the 29th of September, 1893." The land was occupied by the tenant as a garden. At the expiration of the tenancy there was a quantity of flower roots, vegetables, and bulbs upon the ground. Since taking the last crop the appellant had expended certain labour upon and applied certain manure to the land.

The claim was for £159 28. 9d., and the particulars showed that the crops consisted principally of narcissus bulbs and crocus bulbs, there being also some vegetables. The bulbs were grown by the appellant for sale. They were put in in the autumn of 1893, and would not be fit to take up until July, 1895.

The magistrates refused the application. They were of opinion that the holding was not an allotment within the meaning of the Act, on the ground (a.) Reported by E. G. STILLWELL, Esq., Barristerat-Law.

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HIGH COURT.

that the appellant did not cultivate it as a garden, but used it for trade purposes. They further held that the bulbs for which compensation was claimed were not crops grown in the ordinary course of cultivation, on the ground that they were not an ordinary crop grown in the neighbourhood.

The questions for the opinion of the court were: (1) Was the holding in law a holding within the Act of 1887? (2) Could the bulbs claimed for be held in law, under the circumstances, to be crops growing on the holding in the ordinary course of cultivation within the meaning of section 5 of the said Act?

By section 4 it is provided that "allotment' means any parcel of land of not more than two acres in extent held by a tenant under a landlord and cultivated as a garden or as a farm, or partly as a garden and partly as a farm. 'Cottage garden' means an allotment attached to a cottage. Holding' means an allotment or cottage garden."

Section 5 provides as follows: "Upon the determination of the tenancy of a holding after the commencement of this Act the tenant shall be entitled, notwithstanding any agreement to the contrary, to obtain from the landlord compensation in money for the following matters and things, that is to say (a) for crops, including fruit, growing upon the holding in the ordinary course of cultivation. (b) for labour expended upon and for manure applied to the holding since the taking of the last crop therefrom in anticipation of a future crop."”

W. Mackenzie, for the appellant.-This is an allotment within the meaning of the Act, and the bulbs are crops grown upon the holding in the ordinary course of cultivation within the meaning of section 5. Crops are not confined to fruit and flowers: Hood v. Kendall, 4 W. R. 123, 17 C. B. 260. ing in the ordinary course of cultivation Crops growgrown in the usual manner. If grown under glass the tenant would not be entitled to compensation.

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Reginald Brown, for the respondent.-This is the first case arising under the Allotments Act of 1887. This plot of land is not a garden within the Act. The Act was intended to apply to small cottagers, and not to a nurseryman or seedsman. A "cottage garden is a garden used by a cottager for growing vegetables, &c., for his own use, and not for the market. land in this case is used as a nursery ground or market of the Market garden as defined by section 6 Gardeners' Compensation Act, 1895 (58 & 59 Vict. c. 27). A garden is a plot, either attached or not to a cottage, and used for personal use. A garden is defined by Latham as a "piece of ground enclosed and cultivated for herbs or fruits for food, or laid out for pleasure." These bulbs are not "crops." The Act was never intended to apply to bulbs in the ground. A crop is something which can be cut or gathered off a tree or plant.

Mackenzie, in reply.-This land is not the less a garden within the Act because the produce is cultivated for market: Meux v. Cobley, [1892] 2 Ch. 253, 40 W. R. Dig. 111.

raised for us to decide. Firstly, whether the holding LAWRANCE, J.-In this case there are two questions was in law a holding within the Act of 1887; and, secondly, whether the bulbs claimed for can be held to be crops growing on the holding in the ordinary course of cultivation within the meaning of section 5 of that Act. It seems to me that it is only necessary for us to deal with the first question, and that we need not decide as to whether the bulbs come within section 5. The Act of 1887 provides compensation to the occupiers of allotments and cottage gardens for crops left in the ground at the end of their tenancies. By

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