Sir Roundell Palmer, Q.C., and Lindley for the motion contended that upon the construction of the Act the commissioners were entitled to the discovery they sought. The Meyrick Fund was an educational endowment, tenable at a university within the meaning of the 5th section of the Endowed Schools Act. The mere fact of its being vested in trustees did not affect the question. Further, even if the commissioners had no power to make a scheme operative without the assent of the college they were entitled to the discovery they sought, in order to enable them to frame a draft scheme, to be submitted to the college for their approval.

Osborne Morgan, Q. C. and Greenside, for the college, argued that there was great doubt whether the fund could in any sense be considered an endowment; but, even if it were, its objects, though educational, could hardly be called scholastic. The Endowed Schools Act was intended to apply to schools, not to the Universities, or to such endowments as the present. The mischief that the Act was intended to remedy was that, before the passing of it, there were large endowments founded for the benefit of schools, but which had been scandalously misappropriated. If the Act could be held to apply to University endowments, the commissioners might remodel and reconstitute the Ireland, Hertford, and Craven scholarships, or interfere to any extent with the property of the different colleges. This was clearly not the intention of the Act. Further, it could not be said that the principality of Wales was a district within its meaning. The six counties to which the scholarships referred constituted the old and independent principality of Wales, and unless the court was prepared to hold England, Scotland, and Ireland to be each districts, the term could not be properly applied to Wales.

The VICE-CHANCELLOR.-It is argued on behalf of the commissioners in this case that the Endowed Schools Commissioners have the power of making a scheme with regard to this fund, and if they have they are entitled to the discovery which they seek. It has been further argued that even if they have no power to make a scheme operative without the assent of the college, still they are entitled to the discovery, which would enable them to frame a draft scheme for the purpose of seeing whether the college would concur in it or not. In the view which I take of the first point it is not necessary for me to decide the latter. It is also unnecessary to decide whether this fund is or is not a part of the foundation of Jesus College-a point which seems to me of considerable doubt. I prefer to decide the case upon a broader ground. Osborne Morgan may or may not be justified in saying that even if this case is within the Endowed Schools Act, it is so by inadvertence and not intentionally. If the words of the Act, on a fair construction, clearly bring the fund within the jurisdiction of the commissioners, I must give them effect. But I may suggest that nothing could be more conformable to the apparent intention of the Act

Mr.

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than that in a case where, for example's sake, an endowed school existed in a particular parish, and exhibitions were founded for the use of the parishioners, whether connected or not with the school, that the commissioners should have power to deal with both together. However, I think if the 5th and 14th sections of the Act receive their natural construction, the words cover the point. Universities being expressly referred to in those sections, it is said that the Act refers to districts, and that the principality of Wales is not a district; but it is quite as much so as the counties of Durham, York, or Middlesex, although perhaps the Act contemplated much smaller districts. It is also said that the commissioners might make a scheme, which will not be a proper one, having regard to the nature and origin of the fund; but, if that is so, there is a remedy. Upon the whole, I hold that the commissioners have the jurisdiction which they claim, and that, therefore, they are entitled to the discovery which they seek to obtain. The motion must be allowed with costs.

Solicitors, Farrer, Ouvry and Co.; Frederick Clarke.

COURT OF QUEEN'S BENCH. Reported by J. SHORTT and M. W. MCKELLAR, Esqrs., Barristers-at-law.

Saturday, Nov. 18, 1871.

THE MUTUAL TONTINE WESTMINSTER CHAMBERS ASSOCIATION (LIMITED) (apps.) v. THE ASSESSMENT COMMISSIONERS OF ST. GEORGE'S UNION (resps). Tenements structurally divided-Control of outer door-Kind of tenancy-Rateability.

The appellants were owners of the Westminster Chambers, consisting of seven blocks of building, each with an entrance door and a staircase. They contained altogether 117 sets of rooms, structurally divided, each with an outer door on to the staircase, and having no other communication with each other. The street door to each block was kept locked at night, and a porter, who was hired by the appellants, resided in each block, and had a key of and access to all the sets of rooms in the building for the purpose of a general superintendence, and as the servant of the occupiers. The form of agreement between the appellants and occupiers, contained the usual clauses in the lease of a separate house-such as power to the landlord to enter and paint, and to enter and see repairs carried out, &c.:

Held, that each set of rooms ought to be separately placed upon the valuation list of the parish, and each occupier separately rated to the relief of the poor.

SPECIAL case stated for the opinion of the Court of Queen's Bench, pursuant to an order of the Court of General Assessment Sessions, holden under and by virtue of the Valuation (Metropolis) Act 1869, at the Guildhall, Westminster, on the 4th March 1871.

The Mutual Tontine Westminster Chambers Association (Limited), hereinafter called the appellants, had objected before the assessment committee of the St. George's Union to the valuation of certain buildings, known as and hereafter called "The Westminster Chambers," as made in the valuation list of the parish of St. Margaret and St. John, Westminster, of which the ap

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pellants were the owners; and being aggrieved by the decision of the said assessment committee thereon, they duly appealed against the same to the Court of General Assessment Sessions, on the ground (amongst others) that the Westminster Chambers were erroneously assessed in the said valuation list as 117 hereditaments, and should have been assessed as seven hereditaments only.

The Westminster Chambers consist of seven blocks of building, having seven principal entrances. Each of these blocks is divided into two ranges by an internal staircase, which has only one door at the principal or street entrance. These blocks of buildings are structurally divided into one hundred and seventeen different suites or sets of rooms, which are quite distinct from each other, like chambers in the inns of court, and are in some instances let and occupied, and are in every instance capable of being let and occupied separately as residences or offices; each suite or set of rooms has an outer door, opening on to one of the said internal staircases, and also an inner private hall or passage, a water-closet, and a lavatory. There is no means of communication between these suites or sets of rooms except the said internal staircases.

The form of agreement hereafter set out, with the memorandum and schedule, shows the terms upon which the rooms are let, and such agreement is to be taken as forming part of this case.

The outer or street door to each block of building is kept locked at night, and a porter, who is hired by the appellants, resides in a distinct set of rooms in the basement of each block of building, and has a key of and access to the suites or sets of rooms in such building, for the purpose of a general superintendence, and as the servant of the occupiers respectively, by whom he is in some cases employed and paid for looking after the rooms.

The Westminster Improvement Act, 1853 (16 & 17 Vict. c. 176), s. 69, applies to the appellants, and enacts:

That where any house erected on land of the commissioners shall be occupied, or be intended to be occupied by different persons in distinct sets of apartments, the commissioners, their successors or assigns, may, if they shall think fit so to do, demise or sell any set of apartments separately from the rest of the said house.

The appellants provide gas for the staircases and passages, and water for the entire buildings, and pay all rates and taxes in respect thereof, charging their tenants higher rents in consequence.

Upon the same facts, the commissioners of assessed taxes had, under the 48 Geo. 3, c. 55, stated a case for the opinion of her Majesty's judges, as to whether the assessment of the Westminster Chambers to the house duty should be on seven blocks of building, or on each suite or set of rooms, as distinct properties, according to the 14th Rule of Schedule B of that Act; and the judges had decided that the Westminster Chambers should be assessed in seven blocks.

The appellants contended that the Westminster Chambers ought to be assessed in the said valuation list as seven hereditaments only, relying on the decision of the judges above mentioned. The respondents contended that that decision had no bearing on this case, and that the Westminster Chambers were correctly assessed in the said valuation list, by treating each of the said suites or sets of rooms as a rateable hereditament.

The Court of General Assessment Sessions decided that the Westminster Chambers ought to be

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assessed as seven hereditaments, and ordered that the said valuation list be altered, by striking out the separate valuation of each suite or set of rooms, and inserting in lieu thereof a separate valuation of each of the said seven blocks of building, subject, nevertheless, to a case for the opinion of the Court of Queen's Bench, on the question whether the Westminster Chambers ought to be separately valued in the said valuation list in suites or sets of rooms, as distinct, separate, rateable hereditaments, or in seven blocks of building.

The said court further ordered that the question of value be heard and determined after the decision of the case by the Court of Queen's Bench, and that the costs of the appeal remain subject to the order of the Court of General Assessment Sessions.

If the court is of opinion that the decision of the sessions is right, the valuation list is to be amended accordingly, otherwise to remain as approved of by the assessment committee; in either case subject to the decision of the sessions on the question of value, and the costs of the appeal.

The following is the form of agreement before alluded to:

An agreement made and entered into the day of 18 between the Mutual Tontine Westminster Chambers Association (Limited), by George Sands Sidney, their secretary, hereinafter called the lessors of the one part, and hereinafter called the lessee of the other part. The lessors hereby let, and the lessee hereby takes, all that rooms numbered and being on the floor of the building, and numbered of the chambers belonging to the association, called the Westminster Chambers, situate in Victoria-street, in the city of Westminster, together with the use of the water closet and washing closet attached thereto, and also the use in common with other tenants of the entrance hall, and stairs, and lift leading to the same premises, for the term of year from the day of 18, and so on from quarter to quarter, but determinable at the end of the first quarter, or of any subsequent quarter, by either of the parties giving to the other of them three calendar months previous notice in writing for that purpose, and under the quarterly rent of 1., payable on the usual quarter days, free from all deductions whatsoever, the lessors hereby agreeing to pay all taxes, rates, assessments, and impositions, parliamentary, parochial, or otherwise, charged or to be charged on the premises, but if the premises shall be rendered uninhabitable by fire not originating therein, and not occasioned by the lessee, his executors, administrators, or assigns, or his or their servants, the rent shall be suspended until the premises are rendered habitable. And the lessors and lessee hereby mutually agree, &c.

Then came the usual agreements in the lease of a house, and at the end was added

Memorandum.-The premises are taken by the lessee, subject to the regulations made by the lessors with respect to the duties of the porter, the supply of coal, and other matters for the general convenience of the tenants. These regulations are set forth in the schedule to this agreement, and are to be considered as forming part. The lessors, however, reserve to themselves the right of altering and modifying these regulations from time to time, as the convenience of the tenants or other circumstances may render desirable.

In the schedule referred to were

THE REGULATIONS. Memorandum of regulations made by the directors in respect of supply of coals, cleaning rooms, &c.

There are seven entrances to the building, and the care of each entrance, and the rooms connected therewith, will be in the charge of a resident porter, appointed and removable by the directors. There are duplicate keys to the outer door of every set of chambers, one of which is to be always in the hands of the porter, the other in the care of the tenant, while the rooms are in use. The tenants have

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the right, free of charge, to the general services of the porter, within the scope of his general duties, as hereinbefore defined. Tenants have the right to the special services of the porter, as hereinafter defined, upon the terms hereinafter mentioned. Coals are supplied by the directors at a charge of 34d. per measure of 900 cubic inches, and wood at 1d. for each fire lighted, and gas is brought to the entrance of each set of rooms, and may be laid on by the tenants at their own expense, if desired. Tenants are not allowed to have stores of coals in their rooms. The general duties of the porter, and which are to be performed free of charge to the tenants, are as follows:-To be constantly in attendance in the section of the building committed to his charge, either by himself or, in his temporary absence, by some trustworthy assistant. To cleanse every morning, before nine o'clock, A.M., the general stairs, passages, lifts, and entrances attached to the section, and to attend to the lighting and extinguishing of the gas therein. To receive and deliver to the several tenants all letters, parcels, and messages, and to receive the keys of the outer doors of the several sets of rooms from the tenants on their leaving for the night. To attend to the regular and proper supply of coals to the several apartments. The special services of the porter which he is bound to render to the several tenants, if required, at a charge of 1s. 6d. per week for each room, comprise the cleansing and arrangement of each such room, and the lighting of the several fires, whenever required. Any extra services required of the porter by the tenant, and which are not inconsistent with his general duties, are to be the subjects of special arrangement. Any services, whether special or extra, so rendered by the porter, will be rendered as the servant of the tenant, and for which, or the consequences thereof, the association will not be responsible.

Poland argued for the appellants that the respondents were wrong, and the Court of General Assessment Sessions were right. The general superintendence of the chambers, reserved by the appellants through the porter of each block, renders the occupation that of mere lodgers, who ought not to be separately assessed to the relief of the poor. By the registration cases which have been decided under the different Acts concerning the representation of the people, the test for separate rating has been not the structural severance of the tenement only, but also the reservation by the landlord of the control of the outer door :Henrette v. Booth, 15 C. B., N. S., 500; Pitt v. Smedley, 7 M. & G. 85. Manisty, Q. C. and Streeten appeared for the respondents, but were not heard.

The

COCKBURN, C. J.-There is no occasion to call upon the other side. The case is a very clear one. There can be no doubt that each occupier of the hundred and seventeen sets is separately rateable to the relief of the poor, and consequently there should be a valuation of each in the assessment list. alteration in the original list by the Court of General Assessment Sessions, was, therefore, an error, and must be set right. The question in these cases always is, whether the occupier has a distinct and separate habitation, or is a mere inmate with the landlord. Sometimes it is not easy to say which he is, but one of the tests adopted is whether the landlord reserves to himself the control of the outer door, so that although liable, perhaps, upon the contract between them, yet the tenant cannot maintain trespass against the landlord for entering his rooms. Here, I conceive, in accordance with that rule, these occupiers would have been mere inmates if the appellants had reserved the control of the outer door of each block of buildings. To decide whether they have done so, I look at the agreement between them and the occupiers. I find in the agreement all the characteristics of a lease, and in the clauses all the provisions |

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of a tenancy under a lease. The landlord has no right to enter the premises which are to be occupied by the tenant. There is to be a porter in each block appointed by the appellants, but he is only for the convenience of the inhabitants, not to secure for the landlord a control over the rooms, or a right to enter them. It is stipulated that the porter may take care of the keys in the absence of the occupiers, but he is bound, as their servant, to give them up when asked for them. There is nothing in the agreement to prevent a man from going out and taking his key in his pocket. It seems, therefore, to be a plain case, for the agreement fails to show such a control over the outer door in the landlord, as to enable him to exclude the tenant from entering without being liable for trespass.

BLACKBURN, J.-I am of the same opinion. In this case it is the duty of the overseers of every parish to make a valuation list of their parish, and it is the duty of the assessment committee to revise the valuation lists, in accordance with the statutes. If, therefore, each set of these rooms is liable to the poor rate, and each occupier is rateable, the committee ought to put each set in the list. No doubt, in point of law, a landlord may agree to let a portion of his house upon any terms he pleases, but the rateability of the tenant must depend upon the agreement containing the terms of the tenancy, if there be one, or upon the facts concerning his occupation, if there be no agreement. I think it will be found that all these

registration cases come to this, when there is no demise in writing, it becomes of importance to consider the control of the outer door; but when there is a lease or an agreement before the court, from which the nature of the tenancy may be gathered, it is not of so much consequence what control the landlord has over the door. In the case of Reg. v. Smith (30 L. J. 74, M. C.; 2 L. T. Rep. N. S. 437), the question was whether the appellant had exclusive occupation of the whole of his house, and the ground upon which the judgment of Hill, J. and myself was given in favour of the exclusive occupation, was the substance of the agreement, by which we considered that the appellant had retained possession of all the rooms, although he had agreed to allow another person to have the occupation of some of them. The substance of the agreement was, too, the ground of our decision in Roads v. Trumpington (L. Rep. 6 Q. B. 56; 23 L. T. Rep. N. S. 821). Now, look at this agreement, and say whether it can be maintained that the lessor did not intend to part with the control of the various rooms to the occupiers. It seems to me that such an assertion would be monstrous. It is clear that each tenant has the exclusive occupation of his rooms, and ought to be rated separately. It is suggested in the case that our decision in this way is opposed to that of the judges who have decided concerning these same premises with respect to the inhabited house duty; but there each tenement must be a distinct property, and that point is of no authority with regard to the present question.

MELLOR, J.-I am entirely of the same opinion. The stipulations of this agreement are ordinarily found in the lease of a house, about which there is no doubt of its distinct rateability. The usual powers of re-entry contained in it would be unnecessary if Mr. Poland's contention were right. All the clauses go to show a separate tenancy, and

it is a mistake to say that the porter is in any way the representative of the appellants; he is provided by them, but that is an arrangement for the convenience of the tenants. There is no duty upon his part inconsistent with the separate and distinct tenancy of each of the occupiers. They can employ him in any way they like. There may be nice points as to the amount of control a landlord has over the outer door, but upon this agreement there can be no doubt the occupiers should be rated separately. Judgment for the respondents. Attorneys for appellants, Burchells. Attorneys for respondents, Capron, Dalton, and Hitchins.

The owner of land, who dedicates a portion of it to public use as a highway, parts with no other right than a right of passage to the public over the land so dedicated, and may exercise all other rights of ownership not inconsistent therewith; and the appropriation made to and adopted by the public of a part of the street to one kind of passage, and of another part to another, does not deprive him of any rights, as owner of the land, which are not inconsistent with the right of passage by the public.

The provisions of the Highway Acts and the Metro

bis Local Management Act, so far as they apply to roads or streets, are subordinate to the paramount rights reserved by the owner.

Where, on a summons against the respondent under the Highway Act for doing damage to a highway, it appeared that the respondent, the owner and occupier of premises adjoining a public highway, used the premises for the deposit of heavy machinery, which he conveyed to and from the premises across the flagged pavement or footway in front of them, in trolleys or waggons which injured the pavement, and it was found by the magistrate that the premises in question could not be reasonably enjoyed without access across the footway, and that the rights of ownership and those of the public might be jointly exercised consistently with the general welfare, it was

Held that the magistrate was not bound to convict, and was justified in dismissing the summons. THIS was a case stated by one of the metropolitan police magistrates under 20 & 21 Vict. c. 43.

The appellants are the vestry of the parish of St. Mary, Newington, to whom, by sect. 96 of the Metropolis Local Management Act (18 & 19 Vict. c. 120), the powers and duties of surveyors of highways and the property vested in such surveyors are transferred.

The respondent is the occupier of premises abutting towards the west on a highway in the parish called Newington Causeway, such highway consisting of a foot pavement and a roadway. The respondent's premises also abut on Tivertonstreet, in the east, and part of them are arches, over which is the London, Chatham, and Dover

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Railway. Adjoining the pavement is the dead wall of the railway arches, extending about 60ft. along the pavement.

This respondent is the tenant of the railway company, and is, for the purposes of this case, to be treated as standing in the position of the railway company, the freeholders.

The footway of Newington Causeway is a flagged pavement, about 27ft. wide, and extending from King's place to the corner of the New Kentroad, having on that (the east) side only four roads or carriage ways intersecting it—namely, at Rockingham-street, at Mead's-place, the entrance to the Surrey Sessions House, and at Horsemongerlane-all narrow ways. On the west side of the road, facing Newington Causeway, are many crossings and carriage ways; and that side is in the parish of St. George the Martyr, Southwark, and its use as a highway is not nearly SO ancient as that of the east side. The Causeway was originally a foot and bridle way. Until the year 1865, when the London, Chatham, and Dover Railway was formed, under parliamentary powers, from Ludgate-hill to Victoria, there was one continuous and unbroken line of shops from Rockingham-street to the entrance of the Surrey Sessions-house, such shops being used for the display of goods. Within that distance there was no break of flag pavement, and no road for carriages and horses across it, there being no premises to which such access was required. The pavement for some length of time has been a promenade for the south side of London, and the keepers of shops abutting upon it, have paid higher rates and rents, in consequence of the very large number of purchasers frequenting it on foot.

For sixty years and upwards the inhabitants of St. Mary, Newington, wishing to have access to these premises across a footway, have always applied to the highway board, and, since that board has been abolished, to the vestry, for permission to do so, and there is no instance of a refusal recorded in the parish books, although there are entries of such concessions upon terms.

The respondent became the tenant of the railway company in June 1870, and subsequently by deed dated the 21st Sept. 1870, of the premises in question, which consist of a yard, building, and railway arches, with a gateway opening on to the pavement. In consequence of the railway arches and wall the premises are unfit for dwelling-houses, and they are used by the respondent as a deposit for new and second-hand machinery, engines, boilers, and other implements of the heaviest description, some single pieces weighing as much as seven or eight tons. Sometimes four, five, or six horses, have been required to draw in the carriage or trolleys on which such pieces were placed, and it was impossible to turn a team of horses of that length from Tiverton-street into the premises of the respondent, so that practically the only access for such goods to his premises was across the pavement of Newington Causeway. At first, the respondent, instead of using horses for the purpose, unloaded from the carriage or trolleys in the roadway at Newington Causeway, and by the aid of rollers and levers slowly moved the huge machinery, &c., across the pavement into his premises. This occupied much time and caused an obstruction of the pavement which was alleged to be a nuisance, and was the subject of complaint