C. OF A.

.

In Thorne v. Cann the case of Toulmin v. Steere was mentioned as having been criticized, but it was not overruled. Lord Macnaghten stated the law thus: "Nothing, I think, is better settled than this-that where the owner of an estate pays charges on the estate which he is not personally liable to pay, the question whether those charges are to be considered as extinguished or as kept alive for his benefit is simply a question of intention. You may find the intention in the deed, or you may find it in the circumstances attending the transaction, or you may presume an intention from considering whether it is or is not for his benefit that the charge should be kept

on foot."

rence.

The purchasers paid £1,000 for Norton's concurThe words are large enough to pass any claim of Norton against the fund. Then is there, in the language of Sir George Jessel, any reason for keeping Norton's charge alive? Considering, in Lord Macnaghten's words, whether it is for the benefit of the purchaser to do so, must the intention to keep it alive be presumed ?

If a charge were to be discovered, next after Norton's and before that of Lord Windsor, would Norton's debt be treated as merged? In my opinion it would not. It cannot be treated as alive for one purpose of benefit, and yet extinguished as regards another. In the circumstances of this case there is a material advantage to the plaintiffs, who are purchasers for value, in treating the debt as subsisting, and I cannot discover any reason to prevent them from invoking this doctrine of equity in their favour. If Norton did not sanction the payments to Kennedy, Norton at the date of the assignment in 1893 had a claim, to the extent of the debt owing to him by Kennedy, upon the fund which is now in court in the other action, to share rateably in the proportion of Kennedy's original claim with Willoughby and Lord Henry Paulet. This right or benefit he assigned. If Kennedy had not such a right, it would obviously be for the benefit of the purchaser to keep Norton's right alive. Willoughby and Lord Henry Paulet are, I assume, innocent of any participation in Walker's wrong-doing by the payment he made to Kennedy. But Norton must be treated as equally innocent, and they, although they knew of his charge, would not make Norton a party to their action against Walker, in which the fund remaining was ultimately secured in court. I cannot see that Willoughby and Lord Henry Paulet, or those who represent him, have any equity to rebut this claim in the name of Norton.

On the whole, I think there was a strong reason in 1893 for keeping alive Norton's debt, and that there was a benefit to the plaintiffs in so doing which would

Нн. Ст.

justify a presumption of their intention to keep Norton's debt in existence.

Norton's claim against the fund in court in Willoughby v. Paulet would pass by his assignment in 1893 to the plaintiffs, and I cannot see that this should be treated as merged.

I therefore differ with reluctance from the judgment of the other members of this court. Appeal dismissed.

Solicitors, Howard Rumney; Dawson, Bennett, & Dawson; Crawshaw & Co.; G. S. & H. Brandon; Mason, Edwards, & Mason; W. Stopher.

Chan. Div. Stirling, J.)

High Court of Justice.

April 23, 24, 25, 28; May 21.
In re HOBSON.
BALLISON v. HOBSON. (a.)

Mortgage of land in Yorkshire by deposit not registered
-Subsequent mortgage by deed registered-Priority-
Actual fraud-Yorkshire Registries Act, 1884 (47 &
48 Vict. c. 5), 88. 3, 7, 14.

The expression "actual fraud" used in section 14 of the Yorkshire Registries Act, 1884, means fraud in the ordinary popular acceptation of the term.

D. should deposit with a bank the deeds relating to A. acted as solicitor on behalf of B. in arranging that certain property in Yorkshire for the purpose of indemnifying B. against an overdraft at the bank. The deposit was made, but not registered. Subsequently A. took from D. a mortgage by deed of the same property, and, having registered such mortgage, claimed priority against the mortgage by deposit to the prejudice of B. would be guilty of actual fraud towards B., and that Held, that if A.'s claim to priority were allowed he consequently he ought not to obtain such priority.

This was an application made by summons on behalf of W. C. Davies, oue of the executors of the will of the late defendant, Evan Thomas, deceased, asking (1) whether, as between the executors of the will of the said Evan Thomas, deceased, the defendants W. P. Horne, F. Miers, J. G. Metcalfe, the National Provincial Bank of England (Limited), and T. E. Jones, the said bank and the said T. E. Jones were respectively or whether either of them was entitled to any and what charge upon the sum of £1,384 deposited in the Leeds branch of the said bank, being the proceeds of the sale of property which belonged to the defendant J. G. Metcalfe and the deceased defendant J. M. Buckley; and (2) if the said bank and the said T. E. Jones were respectively entitled to any such charge, which charge had priority.

The point raised by the summons turned upon the construction of the Yorkshire Registries Act, 1884.

The facts are very fully stated in the judgment of Stirling, J.

stated the facts. Bryn Roberts, for W. C. Davies, the applicant,

Macleod, for the bank, left the matter to the court; the bank having the personal liability of the trustees.

Younger, for J. G. Metcalfe.

(a.) Reported by W. SCOTT THOMPSON, Esq., Barrister-at-Law.

Hastings, Q.C., and Adams, for W. P. Horne and F. Miers, the surviving trustees.-Upon the evidence we submit that the bank had a charge upon the property, and Jones knew of it, and so under the law before the Act of 1884 he could not have gained priority by registering. Further, we submit that the Act of 1884 does not help him, for, in the first place, this being a security created by mere deposit of title deeds without any memorandum of deposit is not within that Act; and, secondly, if it is within the Act still the 14th section will not apply, tor to allow Jones priority would be to enable him to commit an actual fraud within the proviso at the end of that section.

They referred to White v. Neaylon, 11 App. Cas. 171, 34 W. R. Dig. 186; Rolland v. Hart, 19 W. R. 962, L. R. 6 Ch. App. 678; Blades v. Blades, 1 Eq. Cas. Abr. 358; Le Neve v. Le Neve, 2 Wh. & Tu. p. 26, and the definition of dolus malus by Labes therein referred to.

Hughes, for T. E. Jones.--On the facts we say that Metcalfe and Buckley withdrew from the arrangement, and gave notice to that effect to the bank shortly after they signed the letters of the 12th of June, 1888. These letters were so signed only upon the terms that a sum of £400 should be paid to Mrs. Buckley and Mrs. Metcalfe, which sum was never paid. But even if it is held that the bank did obtain a security by the deposit of the deeds, they are not entitled to priority against us, for the bank has never registered their security. The rule laid down in Sumpter v. Cooper, 2 B. & Ad. 223, that mortgages by mere deposit of deeds do not require to be registered has been altered by the Act of 1884. Further, we say that Mr. Jones has not been guilty of any fraud which would postpone him to the bank. He disclosed to Mr. Evan Thomas everything concerning the mortgage by Mr. Buckley to himself, and has been guilty of no breach of duty.

Hastings, Q.C., replied.

STIRLING, J.-This is a summons to determine a question of priorities between certain incumbrances on the share of James Mordaunt Buckley, deceased, on a property called the "Leylands," in Leeds. Nothwithstanding the nature of the questions raised, all parties are desirous that it should be decided on the summons, and on the materials now before me. The order will be prefaced by a submission by all parties that the question should be decided as if an action had been brought and were now being tried. The action is one for administration of the estate of Frederick Hobson, whose will was proved so far back as 1863. Judgment was given in the action in 1866, and it was thereby declared that the trusts of the will ought to be carried into effect. On the 10th of July, 1883, three gentlemen, Evan Thomas, William Pybus Horne, and Frederick Miers, were appointed trustees, and on the 2nd of August, 1884, the conduct of the proceedings was given to them. Part of the trust property consisted of the Leeds Times newspaper, which was carried on by the trustees under trusts in that behalf contained in the testator's will. For the purposes of the newspaper £2,000 had been raised by a mortgage on the premises where the paper was printed and published, and on the 24th of February, 1885, an order was made on the application of the trustees giving them liberty to raise a reserve fund to provide for and indemnify them against liability in respect of the sum of £2,000 by accumulating the sum of £150 annually out of the profits arising from the business, and they were to be at liberty to pay such moneys into court to the credit of " the mortgage redemption account." In 1888 much discussion

HIGH COURT.

took place between the trustees and their beneficiaries as to the propriety of reducing the price of the paper to one penny. The beneficiaries were Mrs. Metcalfe, wife of Rev. J. G. Metcalfe, and her children; Mrs. Buckley, wife of Mr. J. Mordaunt Buckley, and her children; and Mrs. Minors and her mortgagee, Mr. Paley; of these Mrs. Metcalfe and Mrs. Buckley and their respective husbands were strongly in favour of the proposed reduction, while Mrs. Minors and her mortgagee would have nothing to do with it. On the 12th of June, 1888, a meeting was held of persons who were favourable to the change. It was attended by Mr. W. P. Horne, one of the trustees, and Mr. Hopps, a solicitor of the firm of Hopps & Bedford, who acted as solicitors of Mr. Horne and also for Mr. and Mrs. Metcalfe. Mr. Evan Thomas was not present at that meeting, but he was upon that occasion and at other meetings represented by Mr. T. E. Jones, his solicitor. Mr. Jones also acted as solicitor for Mr. J. M. Buckley, who himself attended. The Rev. J. G. Metcalfe was also present. Minutes of proceedings were taken by Mr. Jones, and of these minutes the accuracy is not really in dispute. On the same day, the 12th of June, 1888, Mr. Hopps wrote to Messrs. Metcalfe and Buckley respectively identical letters asking them whether they were willing to lodge at the bank their title deeds of the Leylands property in order that the trustees under the will of the testator, F. Holson, might be guaranteed against loss in continuing the business of the said testator; and on the same day Messrs. Metcalfe and Buckley wrote to Mr. Hopps in reply thereto to the effect that they assented to the deeds being so lodged with the bank.

This being done, an application was made to the court to sanction the alteration, and on the 18th of July, 1988, an order was made in the action, of which the concluding part is that the trustees be at liberty to borrow from their bankers, the Leeds branch of the National Provincial Bank of England (Limited), on the security of the testator's estate and of the guarantee of the defendants J. G. Metcalfe and James Mordaunt Buckley (which guarantee the said defendants, by their counsel, undertook to give to the said bank), a sum not exceeding £1,300 at a rate of interest not exceeding 5 per cent. per annum.

It is observable that nothing is said as to the nature of the guarantee which Messrs. Metcalfe and Buckley are to give. If the order alone be regarded, the guarantee would naturally be taken to be a personal guarantee, but there is nothing inconsistent with the view that it was to be such a guarantee as referred to in the letters of the 12th of June-viz., by deposit of deeds.

On the 9th of August another meeting took place, at which there were present Mr. Horne, Mr. Hopps, Mr. T. E. Jones (again representing Mr. Evan Thomas), Mr. Metcalfe, and Mr. Buckley. There are no minutes produced of this meeting, but Mr. Hopps and Mr. Horne, by their affidavits, state that the minutes of the meeting of the 12th of June were read, confirmed, and signed by the chairman, Mr. W. P. Horne, that the letters of Messrs. Metcalfe and Buckley of the 12th of June were also read, and that he (Hopps) himself reported the arrangements he had made as to depositing the deeds with the bank and opening and drawing on an overdraft account at the bank, and that these arrangements were approved by those present. There is no evidence to the contrary.

On the 1st of September, 1888, the title deeds were deposited with the bank by Mr. Hopps, the overdraft account was opened and was subsequently drawn upon. The paper was continued down to August, 1889, but having proved unsuccessful, the business was then sold by order of the court, and a balance of £1,288 or thereabouts remains due to the bank.

In the meantime, on the 19th of March, 1889, Mr. Jones took a mortgage from Mr. Buckley of his moiety of the property referred to in the letters of the 12th of June to secure a present advance of £200 and further advances. (This mortgage was registered by Mr. Jones in the West Riding Registry at Wakefield on the 21st of March, 1889.) Mr. Buckley has since died in insolvent circumstances, and the question is whether Mr. Jones' mortgage, being registered, takes priority over the security created by deposit of deeds with the bank.

Before dealing with the question of law which arises, I must consider certain issues of fact raised between the parties. First, it is said by Mr. Jones that Messrs. Metcalfe and Buckley, within a few hours after the receipt by Mr. Hopps of the letters of the 12th of June, gave him verbal notice that they withdrew the letters and withdrew from the contemplated arrangement. This is denied by Mr. Hopps, Mr. Metcalfe, and Mr. Horne, and seems to me inconsistent with the letters of Mr. Buckley, dated the 20th of June, 1888, and also of Mr. Jones himself, dated the 13th of December, 1889, and the 6th and 16th of May, 1890, which seem to me to admit the existence of the bank's lien. Next, it was said by Mr. Jones that the letters were given in consideration of a payment by the trustees to the beneficiaries of £400, which was not made. This is also denied, and appears inconsistent with the same letters. Thirdly, Mr. Jones says he, on the 19th of February, 1889, inquired of Mr. Hopps if any security had been given or arranged with the bank, and his reply was "No." This is denied by Mr. Hopps, and there the matter rests; but it seems to me that Mr. Jones' statement in his affidavit is inconsistent with those in his letters to which I have already referred. Lastly, it is said that the arrangement originally contemplated, whatever its nature, was put an end to by the order of July, 1888, and in support of this a letter of Mr. Hopps of the 25th of March, 1889, is referred to. The explanation given by Mr. Metcalfe is that the claim put forward in that letter was founded on a mistaken construction of the order. Whatever may be the explanation, it seems to me that the abandonment of the security is inconsistent with Mr. Jones' letters already referred to, and I hold it not made out. I come, therefore, to the conclusion of fact that the deeds were deposited with the bank by way of security in accordance with the letters of the 12th of June, 1888, and that on the 19th of March, 1889, Mr. Jones was aware of the fact.

As the law stood down to a recent period this finding of fact would have been sufficient to dispose of the case, upon two grounds. First of all, it was held under the Registration Acts of the reign of Anne that the provisions of those Acts did not apply to equitable mortgages created by deposit of deeds unaccompanied by any memoranduin. That was decided in Sumpter v. Cooper. More than that, under the doctrine established by the well-known case of Le Neve v. Le Neve the security of the bank must have had priority over that of Mr. Jones, who took his security with full notice of the existence of it. It is, however, contended that this state of the law has been altered by the recent Registration Act of 1884, and it is necessary to consider that Act.

It is entitled "an Act to amend and consolidate the law relating to the registration of deeds, and other matters affecting lands and hereditaments within the North, East, and West Ridings of the County of York."

There are some of the definitions contained in the Interpretation Clause, s. 3, to which I may refer. [His lordship read the definitions of " "conveyance,' mortgage, "memorandum of charge,' and

HIGH COURT.

" in

assurance," ," and also read section 7.] Now, it was contended that the words "such lien or charge the concluding portion of the section meant a lien or charge accompanied by a memorandum such as is referred to in the prior part of the section. It does not seem to me that that is the true construction of the section. I think that the words "such lien or charge" have the same meaning as the words "such lien or charge," in the earlier part of the section namely, a lien or charge claimed in respect of unpaid purchase money or by reason of any deposits of title deeds. I think the object of that section was to alter the law as laid down in Sumpter v. Cooper, and to deprive equitable mortgagees of priority unless a memorandum such as is described in the section has been registered. I may then pass on to section 14. It is to be observed that assurance includes any memorandum of charge, and that the term "memorandum of charge" extends to any memorandum or lien or charge which can be registered. Section 14 runs thus: [His lordship read the section.] Now I am far from saying that a question may not arise on the construction of that section, but it seems to me that the Legislature has twice over provided that the priorities given by the Act are not to be altered except in cases of "actual fraud," and I am certainly not disposed in any way to fritter away the language of the Act. I understand that term to mean fraud in the ordinary popular acceptation of the term, and not what has sometimes been called "legal" fraud, or "constructive fraud, or "fraud in the eye of a court of law or a court of equity." At all events for the purpose of the present case I assume that to be the effect of the Act, and I must give effect to the priority claimed by Mr. Jones unless I can come to the conclusion that his case is brought within the exception.

Now, what is the position of Mr. Jones? At the time he took his security or charge he was the solicitor and agent for Mr. Evan Thomas in all matters relating to these particular trusts. Mr. Thomas never attended any of the meetings relative to the trust affairs, but was on all occasions represented by Mr. Jones; and the mortgage in question was executed by Mr. Buckley at a railway station when he and Mr. Jones were on their way to one of these very meetings. The letter of the 6th of May, 1890, commences with a complaint on the part of Mr. Jones that Mr. Hopps had sent a letter direct to Mr. Evan Thomas instead of himself, "well knowing as you do that I act for and represent Dr. Thomas in this matter."

Further, Dr. Thomas has since shown the extent of the confidence which he reposes in him by appointing him one of his executors, and he has proved the will together with his co-executors.

It appears to me, therefore, that under the circumstances at the time when he took his security, Mr. Jones had taken upon himself the duty of actively protecting the interests of Mr. Evan Thomas in connection with the trust. Had, then, Mr. Evan Thomas any interest in the security? The security was no doubt given to the bank, and the bank were the persons primarily interested in it, but it is a matter of indifference to them. They have got the personal security of the trustees, which is perfectly adequate, and they leave it entirely to the court to say whether the priority exists or no.

Then comes the question, Have the trustees as such an interest in this security? I think they have. The meaning of the whole arrangement was that the trustees should be guaranteed against loss by means of the deposit, and that is expressly stated in Mr. Hopps' letter of the 12th of June, 1888, where he says that the deposit of title deeds was made, not

merely for the security of the bank, but "in order that the trustees" (of whom Mr. Evan Thomas was one) "may be guaranteed against loss in continuing the business of the testator. I think, therefore, that Mr. Evan Thomas had an interest in this mortgage. What, then, would be the duty of an agent who had taken upon himself the duty of actively protecting Mr. Evan Thomas' interests with reference to this mortgage. It would be this. If he discovered that the security in which the principal was interested was not duly perfected, so that some third party might possibly defeat it, he ought to do his best to get it perfected so as to prevent such defeat. That was his duty. Then could he behind the back of his client take advantage of such a defect, and gain a security for himself so as to defeat, pro tanto at any rate, the security of his principal. Certainly it would be a breach of duty, and to me it appears that if he did so and were acting in such a way, he certainly would be guilty of actual fraud. He was bound to abstain from taking or using a security over the property charged in favour of the bank to the prejudice of his principal, without making full disclosure and obtaining the sanction of that person, and the burden of proving that such disclosure was made and such sanction was given him lies also on the agent. On that I refer to Dunne v. English, L. R. 18 Eq. 524. Well then, what passed between Mr. Jones and Mr. Thomas on this subject? We have only the evidence as regards it of Mr. Jones.

There is no other proof than that founded on the affidavits. It appears to me that the statements in the two affidavits of Mr. Jones fall altogether short of what is required to prove knowledge, and to show that knowledge on the part of Mr. Evan Thomas.

Mr. Jones nowhere states that he disclosed to Mr. Thomas that his security was to be taken or used in such a way as to prejudice Mr. Thomas. It is perfectly consistent with the statements of Mr. Jones in these affidavits that Mr. Thomas should have given his sanction to the security in the belief that the charge created by the deposit of deeds would not be affected.

No blame whatever can be attached to Mr. Jones so long as he does not avail himself of the security which he has obtained to the prejudice of Mr. Thomas or his estate; but it seems to me that to give effect to the priority which he claims under the registration would be to enable him to commit a fraud. That apparently was the view taken by Mr. Jones himself in the letter of the 6th of May, 1890, to which I have so often referred, and in my opinion it is much to be regretted that in these proceedings he should have put forward such a claim.

In my opinion, therefore, the security of the bank has priority over that of Mr. Jones.

Solicitors, Jaques & Co., for J. Glynn Jones, Bangor; Wild, Moore, & Rixton; Bell, Brodrick, & Gray; Warren, Murton, & Mitten, for Tyas & Son, Barnsley; Stuart & Hill, for T. E. Jones, Manchester.

being wound up compulsorily and only having assets sufficient to pay a small dividend to the debentureholders takes out a misfeasance summons against officers of the company he is at the mercy of the court as regards costs at the hearing of the summons, and the court has jurisdiction in such a case to order the liquidator personally to pay costs. The court in such a case, in considering whether the liquidator ought or ought not to be ordered to pay the costs personally, will have regard to the fact that an application for an order that he should give security for costs has been made and opposed by the liquidator.

These were summonses taken out by the respondents to a misfeasance summons which had been taken out by the official receiver and liquidator of the abovenamed company (which was being wound up by the court), asking that the official receiver and liquidator should give security for their costs on the misfeasance summons. It appeared that there was money in court sufficient to pay a small dividend to the debenture-holders of the company. The whole debenture debt amounted to more than £27,000, charged on the present and future property, including uncalled capital. A receiver had been appointed in a debenture-holders' action.

C. E. E. Jenkins and Younger, for the summonses, referred to In re London Metallurgical Co., 43 W. R. 476, [1895] 1 Ch. 758; In re Kingston Cotton Mill Co., No. 2, ante, p. 363, [1896] 1 Ch. 331; Salisbury, Jones, and Dods Case, No. 2, [1895] 1 Ch. 333, 43 W. R. Dig. 37; In re Seventh East Central Building Society, 51 L. T. N. S. 109, 32 W. R. Dig. 244; Palmer Company Precedents, ed. 6, vol. 2, p. 499, form 636.

John Henderson, for the official receiver and liquidator, contended that there was no jurisdiction to order the liquidator to give security for costs.

ROMER, J.-In my opinion a liquidator who initiates proceedings of this kind is at the mercy of the court as regards being ordered to pay costs at the hearing of the misfeasance summons. The dator personally to pay costs, and in my opinion court undoubtedly has jurisdiction to order a liquithe court would do so in any case where it would be just that the liquidator should be ordered considering whether the liquidator ought or ought to pay the costs. And I think that the court, in not to be ordered to pay the costs personally, would order that he should give security for costs had been have regard to the fact that an application for an made and had been opposed, and that the court had refused to order security for costs on the ground that there would be jurisdiction at the trial to order him to pay them. It is on that ground, and on that ground alone, that I refuse in the present case to order the liquidator to give security for costs. The application will, therefore, be refused, but without costs. Solicitors, Robinson & Stannard; Cox & Lafone; Dawes & Sons.

to determine the value of land compulsorily taken under the Lands Clauses Act, and before the reference, the umpire was retained to act as witness in another claim for one of the parties to the reference; and after the reference, but before the umpire had made his award, he gave evidence for such party as to the value of other land at some distance off taken for the same purposes and under the same Parliamentary powers.

Held, that the fact of the umpire appearing and giving evidence in another case for one of the parties, under the circumstances, did not entitle the other party to the reference to have the award set aside on the ground of misconduct or bias on the part of the umpire.

Application to set aside an award, on the grounds (1) that the umpire who made the award was not a disinterested person with regard to the subject matter of the reference; and (2) that the umpire had misconducted himself in that, subsequently to his appointment and during the pendency of the arbitration and before making his award, he had accepted a retainer from the respondent companies to act as their witness, and that he gave sworn evidence on their behalf in another arbitration in respect of land of a similar character, and in close proximity to the land of the claimant, which land was being acquired by the companies under the same powers and for the same purposes as the claimant's land.

Notice to treat was served on the claimant in January, 1895, in respect of some land of the claimant which the railway companies wanted to purchase compulsorily under the Lands Clauses Act. In May, 1895, arbitrators were appointed, and in June these arbitrators appointed as umpire Mr. Cross; Mr. Cross having been suggested by the company's arbitrator,

and accepted by the claimant's arbitrator.

The reference took place on the 3rd and 4th of December, 1895; but before the reference was heard, and after the date of his appointment as umpire, Mr. Cross had been retained by the respondent companies to act as a witness on their behalf in an inquiry as to the value of land which the companies were taking from a Mr. Green for the same purposes and under the same Parliamentary powers. Mr. Green's land was at a distance from Mr. Haigh's land which was estimated in the affidavits at from one and a half to

three miles, both being in the city of Liverpool. Before the arbitration in Haigh's case took place, Mr. Cross, the umpire, went and viewed Green's land on behalf of the railway companies; and on the 13th and 14th of December-that is, after the arbitration in Haigh's case was heard, but before the umpire had made his award-the umpire gave evidence on behalf of the companies in Green's case; and on the 21st of December the umpire made and published his award in Haigh's case.

Mr. Haigh, the claimant, was dissatisfied with the award, and he now sought to set it aside on the above grounds.

Hon. J. W. Mansfield (Bigham, Q.C., with him), for theclaimant.-No personal charge is here made against the umpire, and no suggestion is made that he has consciously acted improperly or misconducted himself. Our contention is that from the very position in which he placed himself, namely, the position of acting as a witness for one of the parties to the arbitration in another claim, he must have been unconsciously interested and biased in his judgment. At the very time he was conducting this arbitration he was retained as a witness and had consented to act as a witness for one of the parties in the claim made against them in Green's case. This employment on behalf of the companies was before he heard this reference; and then when the reference was over, but before he had made his award, he actually gave

case.

evidence for the companies with regard to the value of land in the immediate neighbourhood in Green's It is impossible under such circumstances that he could have been free from bias as to the subject matter of the reference. He referred to Clout v. The Metropolitan Railway Company, 46 L. T. N. S. 141, 30 W. R. Dig. 8.

H. D. Greene, Q.C., and C. A. Russell, for the respondent companies, and Rowlatt for the umpire, were not called upon.

DAY, J.-I think there is nothing in this application. I cannot suppose for a moment that the mind of an umpire or arbitrator is really or substantially affected by his giving evidence on behalf of one of the parties in another reference on a similar matter some little distance off. From my experience of expert witnesses and professional umpires and arbitrators, surveyors are constantly umpires in this class of cases, and they are constantly material witnesses in compensation cases. Liverpool is a very large city, and if solicitors want to get a competent umpire in Liverpool they must employ as umpire some person who often acts as professional witness for the same company in the same neighbourhood. It is necessary that you should have some person who is intimately acquainted with the incidents of property of this kind, and it is impossible to avoid employing persons who are frequently employed by railway companies in the neighbourhood with reference to cases of this kind. I think, therefore, that this application must be refused.

myself, but, on the whole, I think the objection on the ground of bias is not sufficiently made out. There is no ground for suggesting that the umpire was interested. He was not in any sense interested, and bias would be the only ground, and all we know as to that is that he was a witness for the railway company as to some land between one and a half and three miles distant. That does not, to my mind, sufficiently show that he was likely to be biased. Rightly, no suggestion is made against him personally, incompatibility between the two positions as to and I agree that there is no such necessary justify us in saying that he cannot act. He is not a judge and a witness in the same matter; if he were, he could not act as judge. He is not a prosecutor and judge in the same matter, and I do not think that there is any decision which has gone so far as to show that this application ought to be granted. It is, however, highly desirable that, so far as possible, persons who act as umpires ought to inform the parties of anything which the parties might wish to know in deciding whether they will or will not assent to that person acting as an umpire.

WRIGHT, J.-I feel more doubt about the matter

Rowlatt, for the umpire, asked for costs; and his misconduct against the umpire and he was entitled application was granted, as there was a charge of to come to the court and protect his character. Motion refused.

Solicitors for the applicant, Pritchard, Englefield, & Co., for Simpson, North, & Co., Liverpool.

Solicitor for the respondents, C. H. Mason. Solicitors for the umpire, Woodcock, Ryland, & Parker, for Holden & Holden, Bolton.