event of dying without children, you are to take the period of difurcation as it were as the time when the trustees are to hand over the property. This construction is no doubt open to the argument, that it does import words into the will, since you narrow the period down to that preceding division. In the case of Golland v. Leonard, before Sir T. Plumer, M. R., the rule is referred to, and it is adopted in several following cases, including that of Home v. Pillans; and then these authorities are classed by the Master of the Rolls in the case of Edwards v. Edwards, which is followed by Vice-Chancellor Kindersley in Re Allen's Estate; and I think I ought to follow those authorities.

The case of Smith v. Spencer seemed at first sight to be the other way; but it does not so turn out on examination; there, it appeared on the face of the will, that it was intended that the devisee should die leaving issue in order that he might take an absolute interest, since there was a general gift over in case he should die without leaving issue, as well as the gift over, if he should die under twenty-one without issue; and the case is also taken out of the rule by the form of the limitation, as is shewn, though it is reported very shortly, by the class of authorities cited, namely, Boraston's case (3 Rep. 19) and Phipps v. Ackers (3 Cl. & Fin. 702; 9 Cl. & Fin. 583). The Chancellor held, that it was a vested interest at the death of the tesator, as falling within the principle of Boraston's case, though perhaps there may be some difficulty in reconailing the case with the present rule.

Then, is this case within the rule? It is said not o be so, on the ground of the form of the will; it appears to me, however, that it would be a distinction without substance, if I were to hold that there was any difference between the gift in this case and that of a gift of a life interest, with remainder over, since here the property is to be held in suspense during the life interest; and the right principle to apply is, that the termination of that is the period of distribution; and the case must be dealt with exactly as if there was a gift of the whole income for life, with remainders over; and here the period of distribution is very clearly shewn to be when two different things are to be done in two different events.

The case, therefore, is plainly within the rule; and, following Edwards v. Edwards and Re Allen's Estate, I must hold, that in the events that have happened, the son is entitled absolutely. The costs must come out of the estate.

COURT OF QUEEN'S BENCH.
EASTER TERM.

[Before COCKBURN, C. J., MELLOR and SHEE, JJ.]
COWELL V. THE AMMAN ABERDARE COLLIERY COM-
PANY (LIMITED).-May 8.
Costs-Reference by consent before trial-County Court
Act, 13 & 14 Vict. c. 61, s. 11.

By a judge's order, made by consent of the parties, after issue joined, this cause was referred to an arbitrator, who was to have all the powers as to certifying and amending pleadings, of a judge at Nisi Prius; the costs of the cause to abide the result of the award; the costs of the reference and award to be in the discretion of the arbitrator.

The award was as follows:-"I find each of the several issues joined for the plaintiff; and I find and award that the plaintiff has sustained damages, by reason of the breaches of contract alleged in the declaration, to the amount of 208., which sum I order and award the defendants to pay to the plaintiff. And I further award and order that the plaintiff and the defendants do each bear their own costs of the reference, and that the defendants pay the costs of this award."

Upon this award, the order of reference having been made a rule of court, the Master taxed the plaintiff his costs in the cause.

Quain obtained a rule in Michaelmas Term last, calling upon the plaintiff to shew cause why the Master should not review his taxation, on the ground that the plaintiff had recovered a sum not exceeding 201., and was therefore deprived of costs by the County Court Act, 13 & 14 Vict. c. 61, s. 11. Against which, Joseph Brown (Jan. 31) shewed cause. Quain, in support of the rule.

The arguments, in the course of which Parr v. Lillicrap (1 H. & C. 515; S. C., 9 Jur., N. S., 80) was cited, in addition to those mentioned in the judgment, are sufficiently set forth therein. Cur. adv. vult.

The judgment of the Court was now (May 8) delivered by

MELLOR, J.—In this case a rule had been obtained by Mr. Quain, calling upon the plaintiff to shew cause why the Master should not be at liberty to review his taxation of costs. An action having been commenced, and issue joined therein, by order of a judge, and by consent of the parties, the cause was referred, and it was ordered, "that the costs of the cause should abide the event of the award, and that the costs of the reference should be in the discretion of the arbitrator." By the award the arbitrator found that the plaintiff had sustained damages by reason of the breaches of contract alleged in the declaration to the amount of 20s. This amount he ordered the defendants to pay to the plaintiff, and directed that each party should bear their own costs of the reference.

Upon this award the Master taxed the plaintiff's costs of suit, the event of the award being in his favour. The defendants objected, that the plaintiff having recovered a sum not exceeding 207., was not entitled to costs by virtue of the 13 & 14 Vict. c. 61, s. 11.

On shewing cause against the rule, it was contended that the section did not apply to an arbitration by consent of the parties before trial, wherein the costs were ordered to abide the event of the award; and it Court Act, means recover by the verdict of a jury. was argued that the word "recover" in the County Several cases were cited, in which judges have in geAn action having been commenced, and issue joined, by neral terms suggested that there does exist a distincorder of a judge, and by consent of the parties, the cause tion in this respect between cases in which there has was referred; the costs of the cause to abide the event of been a verdict subject to a reference, and cases in the award, and the costs of the reference to be in the which the reference was by consent before verdict. It discretion of the arbitrator. The arbitrator found that is important, in considering this question, to distinthe plaintiff had sustained damages to an amount under guish between the cases which have been decided upon 201; whereupon the Master taxed the plaintiff's costs of the construction of the 3 & 4 Vict. c. 24, s. 2, which, suit-Held, by this Court (after consulting the judges in terms, applies only to cases in which there has been of the Common Pleas and Exchequer), that the plain-"the verdict of a jury," and cases decided upon the tiff, not having recovered 201., was deprived of his costs County Courts Act and similar acts in which there by virtue of the 13 & 14 Vict. c. 61 (County Court Act), are no such words.

8. 11.

The case mainly relied upon by Mr. Brown was that

of Frean v. Sargent (2 H. & C. 293), in which an action | word "recover" in the County Court Act as in the of slander had been referred after issue and before London Small Debts Act, is satisfied by a recovery in trial, by agreement of the parties, whereby it was sti- the action without the verdict of a jury (Boulding v. pulated "that the costs of the cause should abide the Tyler, 3 B. & S. 472; S. C., 9 Jur., N. S., 794), the event of the award;" and the arbitrator having found result seems naturally to follow, that in each case the in favour of the plaintiff with 20s. damages, the Mas- plaintiff not having recovered in the action 201, is deter had taxed the plaintiff's costs of suit; upon which prived of his costs by virtue of the provisions of the the Court of Exchequer refused a rule to review the County Court Act and other similar statutes. Master's taxation, saying, "that in actions referred by Our impression during the argument was strong in agreement of parties before trial, the agreement regu- favour of making the rule ahsolute; but we abstained lates the right to costs." In that case, Bramwell, B., from delivering judgment, with the intention of ca although he concurred in refusing the rule, did so ex-sulting the judges of the other courts upon the subpressly, on the ground that "it did not appear that the case came within any of the statutes taking away the plaintiff's general right to costs given by the Statute of Gloucester."

The case of Robertson v. Sterne (13 C. B., N. S., 248; S. C., 9 Jur., N. S., 332) was relied upon by each of the learned gentlemen who appeared on the rule; Mr. Brown contending that it established a clear distinction between cases of compulsory reference and cases of reference by agreement or consent of parties; and there is no doubt that the Court, in giving judgment in that case, appears to have considered that the statutes which deprive the plaintiff of costs in certain events, did not apply to references by consent before trial. Mr. Quain, on the other hand, contended that that case was in reality in favour of his rule, inasmuch as it established that in a reference under the compulsory clauses of the Common-law Procedure Act, 1854, where there was no verdict of a jury, nor any power to enter a verdict, the plaintiff, having recovered less than 20%., although the costs were ordered to abide the event of the award, was held to be deprived of them by the operation of the London Small Debts Act, 15 & 16 Vict. c. lxxvii, s. 120, in which the words are 66 shall not recover a sum exceeding 201."

In the case of Smith v. Edge (2 H. & C. 659; S. C., 9 Jur., N. S., 1300), in which a verdict had been entered, subject to a reference, and in which some members of the Court of Exchequer are reported to have used expressions countenancing the distinction between actions referred before trial and actions in which a verdict has been taken subject to a reference, the case of Robertson v. Sterne was cited, and Bramwell, B., in adopting the reasoning of the Court of Common Pleas, so far as it related to the main question there decided, viz. that the London Small Debts Act did deprive the plaintiff in that case of costs, expressly dissented from the opinion of the Court of Common Pleas, so far as "it intimated a difference between submission by consent and submission by compulsion;" and after reviewing the cases of Frean v. Sargent and Jones v. Jones (7 C. B., N. S., 832; S. C., 6 Jur., N. S., 826), is reported to have said, "I think that the general rule that ought to govern all these cases applies here, and that rule is, that wherever the plaintiff is entitled to judgment in the action and gets his damages in the action, and the case is such that if there had been no reference the plaintiff would, by virtue of the County Court Act, have lost his costs in the cause, so does he equally lose them when there is a reference which fixes the amount, unless he has succeeded in getting the necessary certificate."

We are of opinion that the above statement of Bramwell, B., truly expresses the rule which ought to be applied to the case before us. We think it is impolitic to make a distinction which would greatly discourage reference by consent, and we cannot perceive any substantial difference between an order made compulsorily and one made by consent. The meaning of the words "costs of the action to abide the event of the award," must receive the same construction in each case; and when it is once established that the

ject. We have since had the opportunity of conferring with the judges of the Courts of Common Pleas and Exchequer, who concur with us that this rule should be made absolute.-Rule absolute.

COURT OF COMMON PLEAS.
EASTER TERM.

[Before ERLE, C. J., BYLES, and SMITH, JJ.] THE OVERSEERS OF THE POOR OF SUNDERLANDNEAR-THE-SEA, Apps., THE GUARDIANS OF THE SUNDERLAND POOR-LAW UNION, Resps.—April 2 and May 10.

Rating-Rateable value-Valuation list-Union Assessment Committee Act-Small Tenements Act-Brewery -Public-house.

The owner of a brewery was possessed of several pulla houses, some in the same parish as the brewtery, mi some not. The tenants of the public-houses paid a rest less than the value of the houses, but contractal with the owner of the brewery to take all their malt liquors from the brewery:-Held (Byles, J., dissentienté), that the rateable value of the brewery or of the public-has was not affected by these contracts.

44

The amount to be inserted in the column headed “ rateik value," of the valuation under the Union Assessme Committee Act, is the true rateable value of the property independent of whether such property is subject to de provisions of the Small Tenements Act, 13 & 14 Vict. c. 99, or not.

Case stated for the opinion of this Court.-The parish of Sunderland-near-the-Sea is one of the parishes included in the Sunderland Poor-law Union the board of guardians of which union have, in ac cordance with the Union Assessment Committee Art, 1862, appointed an assessment committee for the parposes of the act. The overseers of the said parish is pursuance of the said act, made a list of all the rate able hereditaments in the parish, in so much of the form shewn in the schedule of the act (6 & 7 Will 4. c. 96), as is set out in the schedule in the Union A sessment Committee Act, which list was duly deposited for inspection, published, and afterwards transmittal to the committee as required by the act. [This valua tion list as so transmitted, and as afterwards con firmed and approved by the committee, formed part of the case.] The committee, after receiving the valtstion list, made alterations in the values of certa hereditaments, and then caused the list to be depe sited for inspection, as required by the act, and ap pointed a day for hearing any objections thereo The overseers of the poor of the parish of Sunderland gave notice of objection, and appeared before the committee, and stated their objections to the altera tions, but the committee adhered to their original views, and approved and confirmed the list. The over seers having reason to think the parish was aggrieved by the decision of the committee, and having duly obtained the consent of the vestry, gave notice of ap

The figures below shew the amount at which the brewery was returned by the overseers; the figures entered above shew the increased amounts charged by the committee.

Small Tenements Act must be read together. The former act was passed, as the preamble states, to obEain a uniform valuation for parishes. If the contention of the appellants is right, the committee can only make a valuation contingent on the accident; first, whether the parish may have adopted the Small Tenements Acts; secondly, whether they have rescinded the resolution to adopt; thirdly, whether the owner as compounded under the act; and, fourthly, wheher the houses are tenanted or not. Surely, if the vaation list is to depend on so many contingencies, the object of the act is defeated. [He referred to the 14 15 Vict. c. 39, ss, 3, 4, and the 25 & 26 Vict. c. 103.] Lush, Q. C., in reply.

lumns, the last column being confined to the deduction of the Small Tenements Act, and would, in the case of an owner compounding, be one-half instead of three-quarters. On the whole, looking at the three acts, the Union Assessment Act, the Parochial Assessment Act, and the Small Tenements Act, I am of opinion that the "rateable value," to be inserted in the valuation list, given in the Union Assessment Act, is to be the true rateable value, ascertained from the permanent qualities of the rateable subject by a surveyor.

BYLES, J.-I am of the same opinion; the rate is imposed by the statute of Elizabeth, on the person and not on the property. In Theed v. Starkie (8 Mod. 314) ERLE, C. J.-I am of opinion, upon the third ques- it was decided that poor rates are personal charges, ion, that the respondents are entitled to judgment. and not charges on the property; and this being so, it At first I was inclined to think that our judgment appears to me that sect. 4 of the Parochial Assessment hould have been the other way, and that a decision in Act may be considered to apply to persons and not to avour of the respondents would be hard on the appel- property. No doubt to do this some violence is done ants, but on looking at the statute I think this is not to the language of the statute, for we must read the he case, and we are bound to give effect to the act of word "at" "according to." At the foot of every rate Parliament. The Legislature requires that a valuation there is a declaration by the churchwardens and overist should be made out for each parish, in order to se- seers, we do declare the several particulars specified are a uniform and correct valuation of property. In in the respective columns of the above rate to be true he form of the valuation list given in the schedule of and correct, so far as we have been able to ascertain he act, the seventh column is headed "rateable value;" them, to which end we have used our best endeavours." nd the question is, whether the true rateable value is Now, if the contention of the respondents be correct, o be inserted in this column, or whether the value at the churchwardens and overseers would have to make hich the owner is to be rated, and is to pay in a a false declartion; the rateable value, the gross value, arish, which has adopted the Small Tenements Act; and the rate to be paid, are put down; therefore, the 1 other words, whether it is to shew the full rateable proper mode of proceeding even before the passing of alue or the proportion in the case where the Small the Union Assessment Committee Act, would be to enements Act applies. I am of opinion that it should put down in the column the true rateable value. Howjew the full rateable value. The Union Assessment ever this may have been before the passing of the et in all its sections points out the intention, that there Union Assessment Committee Act, it is clear that in to be one uniform valuation in all the parishes of order to make correct valuation lists, the true rateable he union, and the value is to be ascertained by a sur- value must be inserted in the list. The appeal was, in veyor, having regard for the locality and circumstances fact, not against the rate, but against the valuation list. of the property, quite independent of his knowing There was, perhaps, no necessity for the 35th section of hether the Small Tenements Act has been adopted the Union Assessment Committee Act; but certainly y the parish or not. The rateable value of small that section applies here, for it says, "nothing herein nements is to be ascertained by surveyors, inde-contained shall be construed to prevent the owners of endent of whether the owner has compounded under tenements from compounding for the rates to be Le Small Tenements Act or not. If this were other- assessed 'on the same"" (which I may observe, ought to rise, the column containing the rateable value would have been "assessed in respect of the same")" in such e subject to three contingencies-first, whether the manner as they were by any statute or statutes enarish had adopted the Small Tenements Act; se- abled to do before the passing of this act." For these ndly, whether the owner of the particular property reasons, I am of opinion that the valuation list was ad compounded under the act; and, thirdly, whether correct; if it were not so, we should be adopting a conhe parish had or had not rescinded their resolution struction of the act which would make the declaration o adopt that act. The whole tenor of the Union by the churchwardens and overseers at the foot of the Assessment Act is, that the rateable value should be rate false. scertained according to the Parochial Assessment Act. SMITH, J.-I am of the same opinion. The intont is said that the owners of small tenements may, tion of the Union Assessment Committee Act was to inder sect. 35 of the Union Assessment Act, com- ascertain the true rateable value of all the property ound as before the passing of that act; and no doubt in the parishes, irrespective of whether a parish had hey have a right to compound, though the contribu- adopted or not the Small Tenements Act. I quite ion of the several parishes will depend on the amount agree with the rest of the Court that the proper mode n the seventh column. Nor is there any hardship in of rating under the Small Tenements Act is to adopt his, because, assuming the case suggested by the coun- the form given in the schedule to the Parochial Assesssel for the appellants, of two adjoining parishes of the ment Act, keeping the eighth column for the rate as same rateable value, and the same proportion of small reduced by the Small Tenements Act. The intention tenements, one parish adopts the Small Tenements of the Legislature in the Union Assessment Committee Act, and the other does not; then, in the parish which Act is so clear that no room is left for a different had not adopted the Small Tenements Act, they would construction. The words of the 35th section, "nothing be put down at their full rateable value; but if I may herein contained shall be construed to prevent the import my own experience into the case, I know that owners from compounding for the same," clearly shew the result would be the same, because it is impossible that it was not intended that the column containing to collect the true legal amount of the rate from the the rateable value should be altered. I do not see that occupiers of small tenements; and I am the more the case of Easton v. Alce conflicts with this decision; confirmed in this view by comparing the two statutes; in that case there was a clause in an act of Parliament for I find the valuation in the Union Assessment Act as to the qualification of a commissioner, and the contains only seven columns, whereas the valuation Court was of opinion that the words, "householders list in the Parochial Assessment Act has eight co-rated to the relief or maintenance of the poor to the