1860. v. HUMPHRIES. Hayes, Serjt., and Maclachlan, to support the rule.-The WHITWORTH tenants were let into possession by Elizabeth Whitworth who to have been tenant for life. They are therefore now appears tenants to the persons entitled as the heirs-at-law of John Gibbs. Under the 14 & 15 Vict. c. 25, s. 1, when a tenant for life dies the tenants in possession become entitled to hold until the expiration of the current year of their tenancy upon the terms of their prior holding, and those in remainder are entitled to recover from the tenants a proportion of the rent. The effect of that provision is to constitute between them the relation of landlord and tenant. [Channell, B.-By the 172nd section of the Common Law Procedure Act, 1852, the party seeking to appear and defend must shew that he is in possession by himself or his tenants. Here the parties seeking to appear and defend are resident abroad. We ought therefore to be quite satisfied of their right to do so, because the Court has no power to order defendants to give security for costs: Butler v. Meredith (a).] The 171st section has not affected the power of the Court in actions of ejectment to give such directions as are necessary to insure the trial of the title; that power is in fact preserved by section 221. In Fairclaim d. Fowler v. Shamtitle (b), Lord Mansfield intimated that he would have allowed the applicant, who alleged himself to be lord by escheat, to come in and defend if the alleged heir, to whom the tenants had attorned, had refused to accede to the course suggested by the Court to enable the title to be tried. A devisee may be let in to defend though not in possession: Lovelock d. Norris v. Dancaster (c). So a mortgagee: Doe d. Tilyard v. Cooper (d), unless when he has no interest in the result: Doe d. Pearson v. Roe (e). The will under which (a) 11 Exch. 85. (b) 3 Burr. 1290.1303. (c) 4 T. R. 122, correcting Lovelock d. Norris v. Dancaster, 3 T. R. 783. the applicants claim is that of the common ancestor. The possession has been in accordance with the will and is consistent with the title of the applicants. In the case of Thompson v. Tomkinson (a), the title of the party seeking to come in was adverse to that of the tenant in possession.They also referred to Croft v. Lumley (b), and Adams on Ejectment, p. 216, 4th ed. POLLOCK, C. B.-The only question here is whether it has been made to appear to our satisfaction, that the parties applying to be let in to defend have been in possession by themselves or their tenants. The action of ejectment is still very much under the control of the Court, so much so that, if the tenants are colluding with the plaintiffs and not honestly maintaining their present right of possession, the Court may at any time remedy any injustice, and compel them to do what is right. We must however look at the words of the Act, and this rule must be discharged, on the ground that it is not shewn to our satisfaction that the parties are "in possession of the land either by themselves or their tenants." MARTIN, B.—I am of the same opinion. So far from being satisfied that injustice is done by our refusal to interfere, I think the greatest injustice would be done if we made the rule absolute. The question is, what is the true construction of the 172nd section of the Common Law Procedure Act, 1852? If the Judge is satisfied that the relation of landlord and tenant between the applicants and the tenant really exists he is not to try the cause, but to allow the applicant to come in and defend. Primâ facie a person in possession of property is owner in fee. If he lets it, primâ facie his reversion is a reversion in fee. If he is only tenant for life and a re(a) 11 Exch. 442. (b) 4 E. & B. 608. 1860. WHITWORTH v. HUMPHRIES. mainderman is entitled after his death, it is for the remainderman to shew that. But if we acquiesced in the present application, we should shift the burden of proof. WATSON, B.-I am of opinion that my brother Channell was right. The Common Law Procedure Act, 1852, ss. 171, 172, enables the persons named in the writ to appear; and by leave of the Court, any other persons in possession by themselves or their tenants. In the present case, in 1855 the tenant for life died. The applicants say that they are entitled in remainder. But they are neither constructively nor actually in possession. If we were to adopt the rule suggested by my brother Hayes, we must read the statute as if it gave power to the Judge to allow any person, and not merely "any person in possession either by himself or his tenants," to appear. Rule discharged. Jan. 14. Where a plaintiff discontinues before giving THIS COOPER V. BOLES. was an action for disturbance of a roadway at Exmouth in the county of Devon, which had been blocked notice of trial, up by the defendant. The declaration was delivered on the the defendant is not under any circumstances entitled to any of the costs of preparing for trial, and therefore not to instruc tions for brief. 21st of February, 1859. On the 2nd of March the defendant obtained an order for three days' time to plead, on the terms of taking short notice of trial for the next Devon Assizes. An order for leave to plead several matters was obtained on the 5th, and the pleas were delivered on the 7th. Replication without notice of trial was delivered on the 9th. The commission day was the 14th of March. No notice of trial was given. The action was discontinued by a rule granted on the 17th of November, 1859, on the usual terms of payment of the defendant's costs. The defendant's costs were delivered and taxed at 561. 18s. 6d., which included amongst others the following items :— 1860. COOPER v. BOLES. A summons to review the taxation having been taken out, Watson, B., at Chambers, made an order that the Master should review his taxation. J. B. Karslake now moved for a rule to rescind the above order. The Master, under the peculiar circumstances of the case, thought it reasonable that instructions for brief should be allowed, the defendant being under terms to take short notice of trial. Even assuming that, according to Doe d. Postlethwaite v. Neale (a), the draft brief and the copies cannot be allowed for, the instructions for brief may stand on a different footing. Instructions for brief are acquiring the knowledge necessary to enable the attorney to prepare the brief. In Gray on Costs, p. 270, after allusion to the practice of the Masters not to allow the defendant under any circumstances any expenses of preparing for trial where the plaintiff discontinues without having given notice of trial, it is pointed out that if the rule be invariably acted upon there are cases in which it seems calculated to do injustice, and that the attorney would not be justified in delaying the getting up of the case till so short a period as ten days before trial. Neither in the case above cited, nor in Rivis v. Hatton (b), is there any express decision as to "instructions for brief." Watkin Williams shewed cause in the first instance.-It is (b) 8 Dowl. 164. (a) 2 M. & W. 732. 1860. COOPER v. BOLES. an invariable rule, that where a plaintiff discontinues, not having given notice of trial, the defendant is not entitled to any of the costs of preparing for trial. In obtaining instructions for pleas the attorney must inform himself of all the particulars of his client's case. That applies in other actions with greater force than in the action of ejectment. Therefore, in Doe d. Postlethwaite v. Neale (a), the hardship was greater than in the present case. As to the observation that the defendant was under terms of taking short notice of trial, that must necessarily have been the consequence of the defendant's own delay or neglect. Karslake replied. The POLLOCK, C. B.-This is an application to set aside an order of my brother Watson, correcting an error made by the Master who is now satisfied that he was wrong. plaintiff obtained leave to discontinue on payment of costs, no notice of trial having been given. And the question is, whether the defendant is entitled to any allowance for the costs of preparing for trial. Wherever there is a rule on a subject of this kind, although in some cases the application of it may appear to work some hardship, it is better to adhere to it. It is clear that more is gained by laying down definite rules, and adhering to them, than by getting what would perhaps be a more perfect decision of the particular case. If the present case could be considered on its own merits, it is one in which the application of Mr. Karslake would be entitled to favourable consideration, but we cannot accede to it. MARTIN, B.-I agree that there must be no rule. The present case falls within the authority of Doe d. Postlethwaite (a) 2 M. & W. 732. |