c. ccxiii.

Caudwell v. Hanson (L. R. 7 Q. B. 55 ; 41 L. J. M. C. 8; 25 57 & 58 Vict. L. T. (N.S.) 595; 20 W. R. 202; 36 J. P. 470). In the case referred to the Court held that the freeholder of land of which S. 5 (29). he had agreed to grant building leases for the term of ninetynine years at a peppercorn rent during the first five years of the term, and at a ground rent of 287. a year during the remainder of the term, was not an owner within the corresponding definition of that term in the Metropolitan Building Act, 1855, of the portions so leased upon which portions houses had been erected, inasmuch as the lessee was at the time the question arose entitled in equity to a grant of the lease pursuant to the agreement, and had, therefore, power to let the houses and receive the profits, and was therefore the 'owner' within the definition.

So also, though a person in point of law may be a tenant from year to year, yet if he has a contract for a term, he must be taken in a Court of Equity to be possessed of the interest contracted for, because equity considers that to be done which is contracted to be done. A tenant in possession who had only an equitable interest under an agreement for a lease for a term was, therefore, in equity held to be an adjoining owner' under the Metropolitan Building Act, 1855, who was entitled to have three months' notice given to him before any alterations affecting a party-wall between his and the adjoining premises would be commenced by his neighbour. Cowen v. Phillips, 33 Beav. 18; 9 Jur. (N.S.) 657; 11 W. R. 706 ; 8 L. T. (N.S.) 622.

The owner of land let at a peppercorn rent is not an owner within the meaning of this definition. In Evelyn v. Whichcord, 27 L. J. M. C. 211; E. B. & E. 126; 31 L. T. (0.s.) 96; 6 W. R. 468; 22 J. P. 658; 4 Jur. (N.S.) 808, also a decision under the Metropolitan Building Act, 1855, the freeholder of building land agreed to grant a building lease of such land for eighty-one years at a peppercorn rent for the first year, 67. for the second year, and 127. for each year during the remainder of the term. And the Court held that the lessee was not the 'owner' of houses which were erected upon such land at the time that fees became due to the District Surveyor for supervising the erection of the houses. Lord Campbell, C. J., in so holding said: 'At the time these fees became due, the lands were let at a peppercorn rent; the appellant therefore received no profits. We cannot hold him liable, unless in every case where land is let on a building lease, the ultimate reversioner is to be held liable, and the surveyor entitled to come upon him for his fees.' And Compton, J., said: "The definition points to a person who either receives himself, or by his tenant, the whole or part of the rents and profits; and I do not think that a peppercorn reserved as rent can fairly be said to be part of the rents or profits. I think the lessee for eighty-one years or his assignee had them, or part of them, "any part' meaning part of the whole.' See also Caudwell v. Hanson, supra.

Under a definition in a local Act of the term 'owner' that it was to mean the person for the time being receiving the rack

57 & 58 Vict. c. ccxiii.

s. 5 (29).

rent of the lands in connection with which the word was used, or who would so receive the same if such lands were let at a rack rent, it was held that the lessee under a building lease for 999 years at a ground rent of 267. was such an owner, although at the time there were no buildings erected on the land. Corporation of St. Helens v. Riley, 47 J. P. 471.

Under the definition of the word 'owner' in section 2 of the Nuisances Removal Act, 1855 (18 & 19 Vict. c. 121),. namely, that such word 'includes any person receiving the rents of property, in respect of which the word is used, from the occupier of such property on his own account, or as trustee or agent for any other person,' the Court of Queen's Bench held that the agent of a lessor of a house and shop, let for a term of 21 years at a rack rent, whose lessee occupied the shop but underlet the rest of the house to a yearly tenant, was not an owner within the meaning of the definition. The shop was shut off from the rest of the premises upon which a nuisance existed, and consequently the lessee was in receipt of the rent from the occupier of the premises on which the nuisance arose, and he and not the lessor's agent was the owner. Cook v. Montagu, L. R. 7 Q. B. 418; 41 L. J. M. C. 149 ; 26 L. T. (N.S.) 471; 20 W. R. 624 ; and see Truman, Hanbury, Buxton & Co. v. Kerslake (1894), 2 Q. B. 774; 10 Times L. R. 668.

In another case where premises were let for a term of years at the same rent at which they were sublet, the rent being merely received by the intermediate lessee and handed over by him to his lessor, the Queen's Bench Division held that, as the intermediate lessee paid over the whole of the rent he received from his lessee without deriving any profit whatever, he was not the person who received the rack rent of the premises, and was not therefore the owner of the premises within the meaning of that as defined by sect. 250 of the Metropolis Management Act, 1862, Walford v. the Hackney District Board of Works, 98 L. T. 63; 11 Times L. R. 17.

The lessee of a house under a lease for a long term of years, different portions of which he had underlet to different tenants, was, however, held to be the owner' within the meaning of the Metropolitan Building Act, 1855, of a party wall in such house, notwithstanding that the underlettings created a greater interest in the under-tenants than that of a yearly tenancy. Hunt and another v. Harris, 34 L. J. C. P. 249; 19 C. B. (N.S.) 13; 13 L. T. (N.S.) 742; 11 Jur. (N.S.) 475; 13 W. R. 742, in which case Erle, C. J., in delivering judgment said: 'It seems to me perfectly clear that the party upon whom the duty of payment is cast (i.e. by s. 73 of the Act of 1855, which corresponded to section 101 of the present Act) is the owner of the structure within the meaning of section 3, namely, a person in possession or receipt of the rents or profits of the premises, that is to say-the person having a beneficial lease, and entitled to the rack rent. . . . I do not mean to say but

that the owner in fee simple, or somebody else, also may be liable. I do not pronounce any opinion upon that. But my opinion is clear that the owner of a long term, who has underlet the premises, and who is entitled to the rack rents, is liable.'

The Metropolitan Building Act of 1844 contained a definition of the term 'owner,' which was similar to that in the present Act, and such definition was held not to include the lessor of a house let for a term of 21 years, which house was during the term accidentally burnt, and being ruinous had to be pulled down under the Act, although during the time that the house was untenantable by reason of an accidental fire the lease stipulated that the tenant should be exempt from the payment of rent. Ex parte the Overseers of Saffron Hill, 24 L. J. M. C. 56; 24 L. T. (0.s.) 118; 18 Jur. 1104.

A receiver appointed by the Court in an action is not an agent for any other person, nor is he a trustee. He is appointed by the order of the Court, and is responsible to the Court, and cannot obey the directions of the parties in the action. In no sense, therefore, does he stand in the position of agent to the parties who are interested at the suit of whom, or of one of whom, he was appointed; and is not an 'owner' of premises within the definition of that term in section 4 of the Public Health Act, 1875, which definition is similar to that contained in section 250 of the Metropolis Management Act, 1855, App. I., post, p. 354. See The Corporation of Bacup v. Smith, 44 Ch. D. 395; 59 L. J. Ch. 518; 63 L. T. (N.S.) 195.

The definition of the word 'owner' in the present Act does not appear to be an exclusive definition, and it may be that the expression includes others than those mentioned. So far, however, as the persons mentioned are concerned, they do not include persons in whom buildings are vested by virtue of some irrevocable dedication, whether by statute or otherwise, to a purpose which prevents the person in whom they are vested deriving any rent or profit therefrom.

In Reg. on the prosecution of The Metropolitan Board of Works v. Lee, 4 Q. B. D. 75; 48 L. J. M. C. 22; 39 L. T. (N.S.) 605; 43 J. P. 302, the Court held that the incumbent of a district church in the metropolis was not the 'owner' of the church within Part II. of the Metropolitan Building Act, 1855, which related to dangerous structures, although the freehold of the church was vested in him under the Church Building Acts. Cockburn, C. J., in that case said, 'The incumbent does not receive the rents or profits of the church, and he is not in occupation of it.'

In Angell v. the Vestry of Paddington, also, L. R. 3 Q. B. 714; 37 L. J. M. C. 171; 9 B. & S. 496; 16 W. R. 1167, Blackburn, J., said that he could not see how the Commissioners for building additional churches under 58 Geo. III. c. 45; 59 Geo. III. c. 134; 3 Geo. IV. c. 72; and 5 Geo. IV. c. 103, could be said to be 'owners' within the definition of that term in the Metropolis Management Act, 1855 (18 and 19 Vict. c. 120, s.

57 & 58 Vict.

c. ccxiii. s. 5 (29).

57 & 58 Vict.

c. ccxiii. s. 5 (29).

250), which enacts that the word 'owner' in that Act shall mean the person for the time being receiving the rack rent of the lands or premises in connection with which the word is used, whether on his own account, or as agent or trustee for any other person, or who would so receive the same if such lands or premises were let at a rack rent. On the other hand, in Caiger and others v. the Vestry of St. Mary, Islington, 50 L. J. M. C. 59; 44 L. T. (N.S.) 605; 45 J. P. 570, the Queen's Bench Division held that certain trustees who were lessees of a chapel which was registered as a place of religious worship, but had not been consecrated, and attached to which were a vestry and rooms for a caretaker, besides lecture and school rooms underneath the chapel, were owners within the same definition. In his judgment in this case Grove, J., pointed out that the land had not been dedicated in perpetuity, and the chapel not having been consecrated according to the rites of the Church of England, there was nothing except the covenant by the lessees not to use the premises for any other purpose than as a place of worship and Sunday school in connection therewith, and for religious meetings, or other religious or charitable purposes, which covenant could be waived by the lessor, to bind the trustees to continue its use as a chapel. The learned judge further said that he agreed with what fell from the AttorneyGeneral during the argument, namely, that parties could not by mere agreement alter the liability imposed by the Metropolis Management Act; otherwise it would be very easy to evade the statute by inserting covenants in a lease, and not insisting on their performance. The two last-mentioned cases were supposed to be in conflict until the Court of Appeal in Wright v. Ingle, 16 Q. B. D. 379; 55 L. J. M. C. 17; 54 L. T. (N.S.) 511; 34 W. R. 220; 50 J. P. 436, pointed out that the cases were distinguishable on the ground, so far as the question of ownership was concerned, that in the first case the question arose with regard to a church of the Established Church of England, which was vested in the Commissioners for building additional churches, and which could never, so long as the statutes under which it was vested in the Commissioners lasted, be let at all at a rack rent, and that consequently the Commissioners could not be such owners as were described by the definition clause; whereas in the latter case, and in the case then before the Court, the continuance of the user of the premises for purposes of a chapel was dependent upon covenants which might or might not be enforced. In The Board of Works for the Plumstead District v. the Ecclesiastical Commissioners for England (1891), 2 Q. B. 361 ; 64 L. T. (N.S.) 830; 55 J. P. 791, land had been conveyed to the Ecclesiastical Commissioners under the Church Building Acts as a site for a church, which was afterwards erected, and, with part of the land, consecrated; and the Queen's Bench Division held that upon consecration the whole of the land conveyed to the Commissioners vested in the incumbent under sect. 13 of the

Church Building Act, 1845 (8 and 9 Vict. c. 70), and that the 57 & 58 Vict. Commissioners had therefore ceased to be owners of it. Denman, c. ccxiii. J., in so holding said, 'I do not found my judgment on the peculiar s. 5 (29). nature of the land, nor on the construction of the particular word "owner," as used in the definition clause of the Metropolis Management Acts, but on the ground that they are not "owners" in any sense. The land is not vested in them. Their duties are the creation of statute.' The question as to whether or not the incumbent was owner of the portion of the land which had not been consecrated was not dealt with in any way.

The Vestry of St. Mary, Islington, was held to be the owner within the meaning of that term in the Metropolis Management Acts of a garden in a square which had been laid out for the benefit of the public, and over which the Vestry exercised control under the Metropolitan Open Spaces Act, 1881 (44 & 45 Vict. c. 34), it having acquired under that Act the residue of a lease of the garden. The Vestry of St. Mary, Islington, v. Corbett and others, 71 L. T. (N.S.) 573.

In another case the lessee of a building used as a chapel which was let on lease to him for 21 years was held to be the owner of such building within the meaning of the Metropolitan Building Act, 1855. See Mourilyan and another v. Labalmondiere, 1 E. and E. 533 ; 30 L. J. M. C. 95 ; 7 Jur. (N.S.) 627 ; 25 J. P. 340; S. C. nom. Reg. v. Mourilyan and another, 3 L. T. (N.S.) 668; see also Wigg v. Lefevre, 8 'Times' L. R. 493.

A Cemetery Company incorporated by Act of Parliament, and empowered to sell the exclusive right of burial in vaults in perpetuity or for limited periods, was also held to be an 'owner' of land within the definition of that term contained in sect. 250 of the Metropolis Management Act, 1855. Vestry of St. Giles, Camberwell, v. the London Cemetery Company (1894), I Q. B. 699; 63 L. J. M. C. 74; 58 J. P. 382, on the ground that land was not extra commercium where lump sums could be received for portion of it; and the Cemetery Company being owners in fee, with the power of letting or selling the land, although this power was limited to the purposes of interment, yet there was nothing to prevent the Company from letting the cemetery, or part of it, to another cemetery company at a rack rent, so long as it was used as a cemetery.

The owner of the soil of a highway is not an owner of land within the definition of that term in the Metropolis Management Act, 1855. In The Plumstead Board of Works v. the British Land Company, L. R. 10 Q. B. 203; 44 L. J. Q. B. 38; 32 L. T. (N.S.) 94; 39 J. P. 376, the defendants, who were owners of land, laid it out for building, making roads and ways upon and across it communicating with ancient highways outside the land, which roads and ways were dedicated by the defendants as highways, but were not repairable by the inhabitants at large. The land was then sold in lots to different purchasers, being conveyed to them by metes, bounds, and admeasurements, set forth on a plan annexed to the conveyance