titled to the property of a lady who had died, and being infants at her death, their uncle, a gentleman of the name of Sainsbury, took out administration to the estate of the deceased, under whom the infants were entitled. He got possession of the personal estate of the deceased, and he gave a judgment to a person of the name of Coates for securing the sum of 4001., part of the personal estate of which he had so possessed himself. He then died, having by his will appointed | other persons to be his executors, and the bill was filed by the infants against the executors of their uncle for an account of the personal estate received by him, and to have the benefit of the judgment. Banister, one of the defendants, was a mortgagee of the estate prior to the judgment, and the bill was against him as well as against the executors of the uncle. He put in his answer to the bill, and by that answer he stated that he had purchased the dower of the uncle's widow for 501., and he claimed to have that sum allowed to him, and the decree was for an account against him of what was due upon his mortgage, of the rents and profits which he had received, with the direction that the 501, should be allowed him in the account. Now, that case was, therefore, no more than this-that the mortgagee had bought in the dower of the mortgagor's widow for 501., and claimed to be repaid that sum upon the mortgage being redeened; and it was decreed apparently without any dispute, and certainly there was no claim by the mortgagee to hold the dower which he had purchased, adversely to the mortgagor. I feel myself, therefore, in this position-that there is no authority to support the distinction which I am inclined to favour, and that there are opposed to it the opinions both of the present Master of the Rolls and of my learned brother; and not only these opinions, but also the opinion of Sir R. T. Kindersley. V.C., who, in the case of Parkinson v. Hanbury (1 Drex. & S. 143), has expressed himself strongly upon the point. Under these circumstances, I feel myself compelled, although, I confess, not without much reluctance, to submit to the decree upon this point being affirmed. This appeal will, therefore, be dismissed; but I think that it should be dismissed without costs. Notes for reference—Baldwyn v. Banister (3 P. Wms. 251, note); Dobson v. Land (8 Hare, 216; 14 Jur. 288). ROLLS COURT. AUSTIN v. AUSTIN.—Re AUSTIN.-Jan. 14 and 18. Infant-Guardian-Mother-Religious education. In the appointment of a guardian to an infant of tender , the Court gives weight to the desires and wishes of the father as to the religious education of the infant; in the absence of other circumstances materially to the befit of the child, it directs the child to be educated| in the religion of the father. But this is subordinate to the first and primary object, namely, the welfare of the child. The Court refused to take the guardianship of an infant of leader years from its mother, the ground of the ap, plication being that the mother was a Protestant, and that the father, who had died intestate, had given direc Los is a draft will, that his children should be educated in the Roman Catholic faith. brated according to the rites both of the Catholic and the Protestant churches. No agreement was made prior to the marriage as to the faith in which the children should be brought up. In November, 1861, Mr. Austin caused a draft will to be prepared, which contained the following direction as to the religious education of his children :-" And it is my wish, and I hereby direct, that all and every the child and children of mine shall be educated and instructed in the principles and tenets of the Roman Catholic religion." The draft will contained no appointment of guardian. Mr. Austin died in December, 1862, intestate, without having executed the proposed will. The infant was the only child of the marriage, and she was born in June, 1862, and was baptised in a Roman Catholic chapel; one of the sponsors was a Protestant lady. In October, 1864, Mrs. Austin married Mr. Seager. On the 11th November, Mr. John Austin (the brother of the intestate), who was a Roman Catholic, took out a summons for the appointment of himself as guardian. On the 15th November Mrs. Seager took out a summons for the appointment of herself as guardian. An affidavit was made by Lord Petre, in which he said, that "the education of a Roman Catholic should commence at an early age; and as soon as it is old enough to receive instruction, it is naturally taught, in addition to the Paternoster, the Sign of the Cross, and the prayer called 'Hail Mary' (the latter of which is, at least in this country, exclusively Roman Catholic) as an ordinary daily practice. In my judgment, no Roman Catholic child, arrived at the age of between two and three years, would receive the ordinary and proper religious education of a well brought up Roman Catholic child, who did not, if able to speak, begin to learn, as part of its morning and evening prayers, in addition to the Paternoster, at least the Sign of the Cross, with the invocation of the most Holy Trinity, by which it is always accompanied; and the Hail Mary, to which the invocation of the child's guardian angel or patron saint (also, I believe, an exclusively Roman Catholic practice) would usually and properly be added." Baggallay, Q. C., and Bagshawe, for Mr. John Austin. The infant ought to be educated in the faith of the father, even were there no express direction on his part; and with this view, a scheme should be drawn up for the education of the child. Although the Court might, even during the life of the father, give the mother the custody of a child under seven years of age, yet the Court would not do so, if the result was, that the child would be educated in a different religion from that which the father professed, and in which he had expressed his wish that the child should be brought up. [They referred to Davis v. Davis (10 Weekly Rep. 245); Stourton v. Stourton (3 Jur., N. S., 527); and Hill v. Hill (8 Jur., N. S., 609).] Selwyn, Q. C., and Kay, for the mother. Jan. 18.-Sir J. ROMILLY, M. R.-Although this case involves considerations of considerable importance, Austin, a gentleman educated as a Protestant became the facts are simple, and may be stated shortly. Mr. he married a Protestant young lady, who was about a Roman Catholic in the year 1847. In July, 1861, the age of nineteen. The ceremony was performed according to both the Roman Catholic and Protestant forms-both by a Roman Catholic and by a Protestant minister. In November, 1861, Mr. Austin caused the draft of a will to be prepared, in which he directed Adjourned summons.—This was an application for that his children should be educated as Roman Cathothe appointment of guardian to an infant. Mr. Aus- lics. On the 14th June, 1862, the infant girl, who is tin, the father of the infant, became a Roman Catholic the object of the present application, was born; of the in the year 1847. In July, 1861, he married a Protest-female sponsors, one was a Roman Catholic and the ant lady of the age of nineteen, the marriage being cele- other a Protestant, the ceremony being performed by a Roman Catholic priest. The father died intestate on the 27th December, 1862, never having executed the will, the draft of which he had caused to be prepared the year before. In October last the mother married again a gentleman of the name of Seager. The child will be three years old next June. The application of the brother of the deceased father is, to have himself, or some person other than the mother, appointed guardian, on the ground of the importance of the child being educated in the Roman Catholic faith, which was that of her father. In these cases the Court only considers what is most for the benefit of the infant. In the matter of religion, the Court holds that the Roman Catholic faith and the Protestant faith are to this extent equally beneficial to the child:-it considers that the hope of eternal salvation does not depend upon the circumstance whether she entertains one faith or the other, but upon the manner in which she fulfils her duties upon earth; but although it holds an equal hand between them, yet the Court always gives a preponderance to the wishes and desires of the father, and, in the absence of other circumstances, materially to the benefit of the child, it directs the child to be educated in the religion of the father. But all this is subordinate to the first and primary object, which is the welfare of the child, because, as I have already stated, the future salvation of the child does not depend, in the judgment of the Court, upon the faith which it entertains being either Roman Catholic or Protestant. Nothing-not only no thing, but no person, or combination of things-can, in my opinion, with respect to a child of tender years, supply the place of a mother, and the welfare of the child is so intimately connected with being under the care of the mother, that no extent of kindness of any other person can, in fact, supply that place. It is the notorious observation of mankind, that the loss of a mother is irreparable to her children, and particularly to young children. If the loss of a mother by death is irreparable to them, it must be a very strong circumstance, indeed, that induces this Court to take away a child from the guardianship and custody of her mother. It is, in point of fact, only done where it is essential for the welfare of the child. Now, undoubtedly, there are cases of unnatural mothers, and cases of immoral mothers, where the Court is obliged to take away a child from the mother, holding that a bad mother is worse than no mother at all; but it acts solely in those cases for the benefit of the child. Upon reading through the papers in the present case, there is not a suggestion of anything against the character of the mother. The case is put solely on the question, of what faith the child shall be educated in; and what the Court has to consider is, whether the importance of educating the child in the Roman Catholic faith, because it was the religion of the father, 11 being so, I am of opinion that I must appoint Mrs Seager, the mother of the child, to be the guardian. But I think it is desirable that, according to the practice which I almost always adopt in such cases, except in very peculiar exceptional cases, I should appoint a gentleman to act with her as a guardian; and upon looking through the papers, and taking the suggestion of her counsel into consideration, I propose to appoint Mr. Wood, who is the husband of the infant's aunt, that is to say, what in ordinary language we should call the uncle by marriage, to act with Mrs. Seager as guardian. I shall give no directions respecting the educa tion of a girl of three years old. I shall leave that entirely to the mother; but I shall expect, in the course of a few years, when the child becomes of an age to receive a more regular education than she will do at present, to receive information from the mother, and from the other guardian, as to the course of education which they purpose to adopt with regard to her; and thereupon I shall make any further direction which I may think fit upon the subject. I take it for granted, as the sole object of this application on behalf of the brother of the father, was to benefit the child, that that gentleman does not ask for any costs out of the infant's estate. Mrs. Seager must be allowed to take her costs out of the income of the child's estate, as it accrues from time to time, and she must also make a proposal before me as to what she considers proper to be allowed for the support of the child. Baggallay.-Your Honor does not think it right to make any order as to the religious faith in which the child shall be brought up; and you leave that to the mother? Sir J. ROMILLY, M. R.-I leave that entirely to the mother for the present, and I shall give no directions at all on the subject. Selwyn.-Your Honor thinks the guardians should make some communication to the Court upon the subject? Sir J. ROMILLY, M. R.-Yes, in the course of a few years, which may depend very much on the character of the child. If it is a very precocious child, it might make a difference. Baggallay.-Your Honor will not give any permission or direction by which the paternal relatives shall have the means of ascertaining the faith in which the child is being brought up? Sir J. ROMILLY, M. R.-I should object exceedingly to any interference with the guardianship, because I have always objected to that; but I may state this, that I think the mother would with propriety allow the relations of the first husband, who are the blood relations of the child, to see and have communication with her. Note for reference-2 Set. Dec. 716. HARROP v. WILSON.-Jan. 21 and 24. is sufficient to deprive the child of the care of the Dower-Apportionment-Compulsory sale of laxi—Re mother. I am of opinion that it is not, and that it is impossible, for the benefit of the child, and for the sake of educating it as a Roman Catholic, that I can properly take it from the mother. I should hesitate to do that in any case; but in this case I think the father of the child himself must have entertained considerable doubts upon the subject; and that unless he had entertained such doubts, he would have executed the will which he had caused to be prepared a year before he died. It is clear, that the matter was present to his mind; he had a draft prepared, in which he gave express directions to that effect; and yet, although he knew he was very ill-although he might not have believed he was immediately going to die—he gave no directions upon the subject. That investment. The land of an intestate having been sold compulsorily, one-third of the purchase money was paid into court to the widow's dower account, and invested:-Held, that the dividends on such investment were apportionable, under the 11 Geo. 2, c. 19, s. 15, between the heir-at-law and the legal personal representatives of the widow. Petition.—In January, 1822, Joseph Gittins died intestate seised of freehold estates, leaving his widow surviving. In 1835 part of the land was taken by the corporation of Shrewsbury, under the powers of a private act. The purchase money was paid into court, and one-third part had been transferred to an account, "The Dower Account" of the widow, and the dividends thereon were ordered to be paid to the widow for VICE-CHANCELLOR KINDERSLEY'S COURT. her life. The widow died in October, 1864, having received Ex parte COOPER, re NORTH LONDON RAILWAY COM the dividends up to July previously. This petition was presented by persons claiming under the heir-atlaw of the intestate, for payment out of the money standing to the dower account. The question was raised whether the dividends which had accrued due since July, 1864, were apportionable between the petitioners and the representatives of the widow. T. H. Terrell, in support of the petition, contended that the dividends were not apportionable. The case must be governed by the stat. 11 Geo. 2, c. 19, s. 15°, which, as appears from the language employed, applies only to the case of an actual demise, the object being to prevent the tenant occupying land without payment of rent. But treating the purchase money as having been actually invested in land, yet there was no assignment of dower, and the tenant would not be in by the demise of the widow, but of the heir-at-law. Renshaw, contra.-The widow must be treated exactly as if the money had been reinvested, and all things had been properly done to complete her title to dower. The land had been taken compulsorily, and she could not be prejudiced thereby. (Kevill v. Deries 15 Sim. 466). Terrell, in reply. Sir J. ROMILLY, M. R.-I am of opinion that the dividends which accrued due since July preceding the widow's death, must be apportioned. The money must be treated exactly in the same manner as if it had been reinvested in land. If this had been done, one-third of the land would have been assigned to the widow for her dower, and there would have been an apportionment under the act of Geo. 2. I will, how ever, mention the matter again. Jan. 24.-Sir J. ROMILLY, M. R.-Upon consider ing this case more fully, I am of opinion that it comes within the statute of Geo. 2, and that the widow's representatives are entitled to an apportionment. I will make an order accordingly. Note for reference-2 Wms. Exors. 786. PANY.-Dec. 9, 1864, and Jan. 17 and 19, 1865. Railway company-Lessee-Compensation—Jurisdiction -Lands Clauses Consolidation Act-Costs-12 & 13 Vict. c. 26, and 13 & 14 Vict. c. 17. A jury duly summoned, under the Lands Clauses Conso- Where a sum of money has been paid into court by a company. Leases, granted by strangers to the power of leasing, held not to be within the 12 & 13 Vict. c. 26, or 13 & 14 Vict. c. 17. gagees, for the payment out of court of a sum of This was a petition by George Cooper and his mortmoney paid in by a railway company, under the 76th section of the Lands Clauses Consolidation Act; and the question was, how, under the circumstances, this money should be dealt with. the lessee, of certain freehold houses in Long-alley, George Cooper was the occupier, and claimed to be Shoreditch, wherein he carried on his business; and the North London Railway Company requiring these houses for the purposes of their undertaking, on the 7th April, 1862, served upon him notices to treat for the purchase thereof, and as to the compensation for damage by the execution of their works. Cooper accordingly delivered his claim, and in October, 1863, the company took possession of the houses, under the 85th section, executing and making the usual bond *Sect. 15 enacts as follows:-" And whereas where any and deposit. Cooper then served them with notice, lessor or landlord having only an estate for life in the lands, requiring payment of 29207. as compensation for their terments, or hereditaments demised, happens to die before taking the houses, and for goodwill and loss of trade; orch the day on which any rent is reserved or made payable, whereupon the company issued their warrant, and a such rent, or any part thereof, is not by law recoverable by jury was summoned, who, upon the footing that the the executors or administrators of such lessor or landlord, leases under which Cooper held were valid, assessed nor is the person in reversion entitled thereto, any other than the sum of 15001. as the value of his interest, and the for the use and occupation of such lands, tenements, or here- sum of 7001, as the compensation for damage in the ditaments, from the death of the tenant for life, of which ad- loss of his trade, making together the sum of 22007. vantage hath been often taken by the undertenants, who Cooper then delivered to the company an abstract of thereby avoid paying anything for the same; for remedy his title as lessee; but the company raised a question thereof be it enacted, that from and after the 25th June, as to the validity of the leases; and considering that 1738, where any tenant for life shall happen to die before or he had not shewn a good title, on the 21st May, 1864, on the day on which any rent was reserved or made payable ditameny demise or lease of any lands, tenements, or here paid the 22001. into court to the credit of the comtaments, which determined on the death of such tenant for pany-"the account of George Cooper, of &c., being Fife, the executors of administrators of such tenant for life the person interested in a piece or parcel of ground, sail and may, in an action on the case, recover of and from situate," &c. such undertenant or undertenants of such lands, tenements, other-ditaments, if such tenant for life die on the day on which the same was made payable, the whole, or if before such day, then a proportion of such rent, according to the time such tenant for life lived, of the last year or quarter of a year, or other times in which the said rent was growing due part thereof respectively." as aforesaid, making all just allowances, or a proportionable It appeared that Mrs. Sarah Pitford, being seised in fee of the houses in question, by her will, dated in 1832, devised them to trustees, their heirs and assigns, upon trust, during the life of Sarah Bosher, to set and manage them as they thought best, and to pay the rents, less the outgoings, to her for her separate use; and after her death, in trust for her child or children living at her decease, as tenants in common in fee; and in default, in trust for the right heirs of Sarah Bosher in fee. And the testatrix declared, that it should be lawful for the trustees for the time being Feb. 11 tion of costs-Re Cant (1 De G., F., & J. 153) and Re Butterfield (9 Weekly Rep. 805). As to apportionment of money paid in where the title to the lands taken was defective-Re Perks (1 Sm. & Giff. 545). Jan. 17.-Sir R. T. KINDERSLEY, V. C.-These leases, by a strange miscarriage for which it is impossible to account, were granted by the executors of the surviving trustees as if the property had been leasehold; whereas it was freehold and a fee-simple; and the power of granting them was vested in John Luntley, the heir, who, though not a professional man, seems to have interfered and prepared them; and, upon the faith of these leases, Cooper has, as he says, laid out 9507. on the premises. of the devised estates, with the consent of the persons for the time being entitled to the rents and profits thereof (if of full age) signified in writing, (if under age) of their own authority, to grant leases in possession at the best rent they could reasonably get, without premium, with such covenants, and on such terms, as the trustees should think best. Mrs. Pitford died in 1842, and the survivor of the trustees was Josiah Luntley, who, by his will, dated in January, 1856, appointed four persons his executors, one of them being John Luntley, his heir-at-law; but the will contained no devise of his trust estates. Those trust estates consequently devolved upon John Luntley, and in him became vested the power of leasing the premises in question. All the executors, except When the company came to look at the title, the John Luntley, proved the will, and on the 24th May, defect was instantly apparent; and Mrs. Taylor, very 1859, the three executors who proved executed the much to her credit, was anxious to rectify it, so was first of the leases in question to George Cooper for Mr. Luntley, but, as trustee for her children, he could twenty-one years, at a rent of 501.; and on the 2nd not safely act in the matter; and I am obliged to look October, 1860, the same persons (described as "trus- at the matter strictly and adversely to see what is the tees to the estate of Sarah Pitford, deceased") exe- | effect of the leases, and whether there is any, and what, cuted to him the second lease, in consideration of a interest in Cooper. proposed outlay by him of a sum exceeding 4007., and of a rent of 127. for a term of eighty years. The consent in writing of the tenant for life was not obtained before granting these leases, nor did John Luntley execute them; but it was alleged, that the tenant for life gave instructions that Cooper should have them, and that John Luntley had taken some part in preparing them. Upon the faith of these leases, Cooper laid out 9507. in repairing and improving the premises whereon he carried on his business; and in December, 1860, he mortgaged the premises comprised in the second lease to a benefit building society. It was admitted that the leases were thus granted by mistake; and when the mistake was discovered, the tenant for life, to whom Cooper had paid the rents, signed a memorandum, addressed to the trustees of the estate of Mrs. Pitford, and to John Luntley and Cooper, admitting that the two leases in question were granted to Cooper by her consent and direction, and stating that she would do any act to confirm them. Her husband also signed a memorandum of concurrence, and the heir-at-law was willing to do any act necessary to confirm the leases, but, being trustee for infants, could not act with safety. Cooper and his mortgagees now presented this petition, stating the facts above mentioned, and served it upon the company, the tenant for life, and her children, and upon John Luntley, the heir-at-law of the surviving trustee. The petition prayed that the sum due on the mortgage might be paid to the mortgagees out of the sum of 22001. in court to the abovementioned account, and that the residue of that sum might be paid to Cooper, and that the costs, charges, and expenses of the petitioners of and incident to the taking of the lands (other than the costs provided for by the Lands Clauses Consolidation Act), and consequent on the application, might be paid by the com pany. Without going through the cases, I may say that, upon more grounds than one, it appears to me that the leases under which Cooper claims are invalid. They are not granted by the person representing the trustees for the time being, namely, the heir-atlaw of the last surviving trustee, but by his execu tors, who had no more power to grant them than any stranger. Moreover, the want of consent required by the power would render them invalid at law; and I can see no equitable ground upon which to treat them as valid in equity. But although I am of opinion that Cooper had no estate in the premises by virtue of the leases, still it appears to me that in equity, in respect of the outlay he has made, he is entitled to an interest to the extent of the money he has expended in improving the premises. In all probability that outlay had improved and increased the pecuniary value of the premises when they were taken by the railway company; perhaps not to the full value of the money laid out, but to some extent; and I think that in equity, whatever that pecuniary increase in the value of the fee-simple of the premises was, to that extent Cooper is entitled to a portion of the money paid into court. I also think that Cooper is entitled to that portion of the money paid in which the jury assessed distinctly from the value of the premises, as the damage done to his busi ness by reason of the premises being taken by the railway company. That being the view which I take as to the equitable rights between Cooper and the persons entitled to the fee, how can it be worked out? On this question, unfortunately, no assistance can be derived from authorities, 'or from the Lands Clauses Consolidation Act, although it has been in operation nearly twenty years. I do not know of any case in which it has been decided in what manner, where a jury has valued a sup posed leasehold or other interest, and it turns out that the person who was thought to have had such an interest had not that, but some other interest, the Court must deal with the money paid into court, and how the value of the actual interest of the parties in that money shall be ascertained. I do not find that precise question, except, indeed, in Brandon v. Brandon (ante, p. 30), in which case, however, it became unnecessary, in the view which I took of the case, to determine it. In this case the petition is presented by Cooper, under the 78th section of the Lands Clauses Consolidation Act, and the money has been paid in, under the 76th section, simply to the account of Cooper. In Brandon v. Brandon (ante, p. 30) the money was paid in by the The following authorities were cited:-On the ques-company to the account of persons in the same posi Glasse, Q. C., and Shefield, for the petitioners, contended that they were entitled to the whole amount paid in, that the leases were confirmed by the proper parties, and that rents had been received by the tenant for life under them. At all events, they were good to the extent of the life estate. Moreover, the leases might be valid under the 12 & 13 Vict. c. 26 (the Defects in Leases Act), and 13 & 14 Vict. c. 17 (the Defects in Leases Amendment Act). Fry, for the persons beneficially interested under the will of Mrs. Pitford, for the executors, and for John Luntley. Rodwell, for the company. tion as Cooper here occupies, and also to the account | but that the petitioner Cooper is entitled, subject to of the reversioners, who, being named in the ac- the mortgage, to so much of the 15007. as is equal to count, were necessarily brought before the Court. In the amount (if any) by which the pecuniary value of the present case, the persons interested in opposing the fee-simple, comprised in the two leases, was at the Cooper's claim were not named in the account, but time when the same was taken possession of by the Cooper has brought them here, and we have now pro- company, increased by the outlay (if any) made by perly before the Court the persons between whom the Cooper since the date of the second lease, declare that question arises; for the company have only to see that he is absolutely entitled to the 7001, being so much of no higher interest is attributed to Cooper than he is the 22001. as was assessed for compensation for daentitled to, otherwise they might be paying twice over. mage; inquire whether the pecuniary value of the What is to be done, then, with this money so paid in, fee-simple comprised in the second lease, when, in having regard to the Lands Clauses Consolidation Act, October, 1863, the company took possession, was inand the obligation which it imposes upon the Court creased in any and what manner by the outlay of the of disposing of that money in some way upon the money by Cooper, since the date of the second lease; application of any party making claim to it? It is with a direction, without forcing the parties to come clear that Cooper is not entitled to the whole of it, back here, that the Accountant-General shall pay to though, as I have stated, he may be entitled to a por- Cooper the 7007., and so much as shall be certified to tion of it. Who is entitled to the remainder of the be the amount by which the pecuniary value of the money, and what is to be done with it? Even upon fec-simple is increased. the footing upon which I have put the case, it does not belong to the reversioners, nor do they claim it; they are only here to have the question settled, as to what Cooper is entitled to. I think I may consider, then, that the authorities establish this proposition-pany pay costs generally; but here, though there is no actual hostile litigation, there is litigation. Cooper, that where notice to treat is given by a company to a the petitioner, has brought before the Court the perperson in possession of premises, and the matter goes sons who must discuss the question, whether or not before a jury to value his interest, the jury have no he was entitled to the whole money, and whether the function except to ascertain the value of the interest leases are valid, and the bringing them before the thus claimed; they have no function of determining Court appears to me to be expenses occasioned by adWhether the claimant is entitled to the interest he bound to pay. Cooper, then, must pay the costs of verse litigation, which expenses the company are not the reversioners and Mr. Luntley. claims: and it could not be otherwise, because if it were it would be giving to the sheriff and jury the power of determining the rights of parties, without any right of appeal from their decision. when money is paid by a railway company into court, Then comes the question of costs. Primâ facie, and an application is made to deal with it, the com c. Jan. 19.-Sir R. T. KINDERSLEY, V. C.-The other In the present case Cooper claimed to be lessee, and question raised was, whether the leases under which the jury have determined the value of his leasehold Cooper claimed might not be valid to a certain extent, interest to be 1500%, and the company paid the money, by virtue of the provisions of stats. 12 & 13 Vict. into court under the 76th section, on the ground that 26, and 13 & 14 Vict. c. 17. Cooper could not make out a good title to the interest i On the construction of those statutes, I think that claimed by him: but it being the case that Cooper, they do not apply to these leases. though not entitled to the leasehold interest, is en- Taking, first, the act of the 12 & 13 Vict.: in the titled to a totally different interest, namely, a kind of preamble two classes of cases are referred to, namely, lien for the amount of his outlay on the premises-in cases where leases are granted by persons having valid what way is the value of his actual interest to be as-powers of leasing, but the leases are invalid by reason certained? Now, I think that the Court cannot give of the non-observance or omission of some condition back the money to the company, and say that there or restriction, or by reason of some other deviation must be some other mode of determining the value of from the terms of the power. The present case does this new interest, or direct the parties to go again be- not come within that class, as the leases were not fore a jury or an arbitrator to determine it. It has granted by persons having the power of leasing, but been already dealt with, and I know of no mode by by persons who are perfect strangers to the power. which it can be dealt with over again; they cannot give a new notice to treat. At all events, the Court amble are cases in which leases are invalid, by reason The second class of cases referred to in the prehas no jurisdiction to do anything of the kind; but on the other hand, under the 78th section it is bound that at the time of granting the same, the person to dispose of the money according to the rights of the granting the lease could not lawfully grant such lease, parties. The petitioners being entitled to a portion although at a subsequent time he might have lawfully of the money, if the remainder does not represent any granted the same. But in the present case the perprecise interest of any other person, I see no other sous granting the lease are perfect strangers to the alternative but to give to the person who claims that power, and who were never intended to have such a to the company. Of course, the reversioners will not which he is entitled to, and to give the residue back power. And the act goes on throughout to provide relief in the "aforesaid" cases. It therefore appears to receive me that this act does not apply to the present case. and I cannot make them accept it; their interest will have to be ascertained in the ordinary way. determine the value of the petitioner's interest? In that state of circumstances, how is the Court to think it for determining values, except by sending an inquiry to chambers as to what is the amount (if any) by which the value of the fee-simple was increased by the outlay made by Cooper, and I think the order should be in this form no other process I is of the premises The act of the 13 & 14 Vict. c. 17, repeals the 3rd section of the former act, and goes on to provide for cases of "such invalid leases as in the said recited act (i. e. the stat. 12 & 13 Vict. c. 26) mentioned;" and, therefore, this act does not apply to the present case. Notes for reference-Brandon v. Brandon (ante, p. 30); |