tion should be raised on appeal against the assessment. Then, the question is, has the respondent paid his rates? There is some strength in Mr. Keane's argument that a receiver has a right to appropriate the moneys received to anything which is to be paid in the course of business. It is said that he has not paid, but the case expressly finds that he has paid the rate. BYLES, J.-Î am of the same opinion. The rate must be assumed to be good; at all events it must be questioned on appeal. There can be no doubt as to the intention of the receiver, and that the respondent knew of such intention.

KEATING, J—I am of the same opinion. If what passed when the respondent compounded was valid, it is valid when the amount is paid.-Judgment for the respondent.

HEELIS, App., BLAIN, Resp.-Nov. 23. County franchise Rent-charge- Conveyance under the Statute of Uses -Possession-Actual possession-2 Will. 4, c. 45, s. 26.

On the 29th January, 1864, A. conveyed a rent-charge of 501. to B., to the use of the five sons of A. No rent had been paid till June, 1864-Held, that the five sons of A. had been in "actual possession" of the rent-charge for six months previous to the 31st July, 1864, and were, therefore, entitled to be placed on the register.

This was a case stated by the revising barrister for the southern division of Lancashire, for the opinion of this Court, the question being whether the appellant was entitled to vote under the Reform Act, 2 Will. 4, c. 45, as having been "in the actual possession of" a share of a certain rent-charge of 50l., for six calendar months previous to the 31st July, 1864. The rentcharge was originally created by deeds of lease and release, dated the 9th and 10th June, 1839.

By indenture of the 3rd November, 1862, it was conveyed to Stephen Heelis, his heirs and assigns, for

ever.

By indenture of the 29th January, 1864, between Stephen Heelis of the first part, John Heelis of the second part, and five sons of Stephen Heelis of the third part, the rent-charge was granted to John Heelis and his heirs, to the use of the five sons of Stephen Heelis, their heirs and assigns, for ever, as tenants in common. Under this deed the appellant claimed as one of the five sons of Stephen Heelis. The half-year's rent due in June, 1864, was the first rent which accrued due after the deed of the 29th January, and was paid to the cestui que uses in July.

It was objected that the appellant had not had "actual possession" of the share of the rent-charge for six calendar months previous to the 31st July. The revising barrister allowed the objection, subject to the case above stated.

The question for the Court was, whether the appellant was entitled to vote under the 2 Will. 4, c. 45,

s. 26.

Joshua Williams, for the appellant.-The claimant was in actual possession of this rent-charge. The question turns on the 1st section of the Statute of Üses. Sect. 26 of the 2 Will. 4, c. 45, requires a voter to be "in the receipt of the rents and profits for his own use." These words include an incorporeal hereditament, which this is. The only words in sect. 26 which can lead to a doubt are, "unless he shall have been in the actual possession thereof." In Murray v. Thornely (2 C. B. 217) it was held, that the words "actual possession" mean possession in fact, as contradistinguished from possession in law. Under the Statute of Uses the grantee has an actual seisin under the deed. The statute gives the seisin to the cestui que use on the execution of the deed. [He cited Com. Dig., tit.

14

"Use;" 3 Cru. Dig. 274; Burton on Real Property; 1 Co. Litt. 315. a., and Butler's note; Bacon on the Statute of Uses, 48; and an Anon. case (Cro. Eliz. 46).]

Keane, Q. C., for the respondent.-There can be no seisin at law before payment of rent. "Possession" and" actual possession" did not mean the same thing at the time the Statute of Uses was passed. The Statute of Uses does not apply to the mode of conveyance known as a lease and release. The act only gives the cestui que use possession as if a grant or conveyance had been made to him. [He cited Bevil's case (Rep. 4 b.); Gilbert on Uses, 193 (Sugden's ed.); and Haydon v. The Overseers of Tiverton (1 Lutw. 510).] Joshua Williams, in reply.

ERLE, C. J.-I am of opinion that the revising barrister was wrong, and that the appellant is entitled to have his name on the register of voters. The claim is in respect of a rent-charge, a share of which the claimant has enjoyed for six calendar months previous to the 31st July. By indenture, dated the 29th January, 1864, a rent-charge of 501. was granted by Stephen Heelis to John Heclis and his heirs, to the use of the five sons of Stephen Heelis, their heirs and assigns, for ever. The appellant was one of the five sons of Stephen Heelis. No rent was paid till July. At common law, therefore, there would have been no actual possession till July; and there are two authorities in support of this. But this was not a conveyance at common law, but under the Statute of Uses. The stat. 27 Hen. 8, c. 10, s. 1, gives the cestui que use possession immediately on the execution of the deed creating the use. Now, the stat. 2 Will. 4, c. 45, by sect. 26, requires the claimant to be in actual possession. I think, however, that the Legislature intended the same meaning to the word "possession" in the stat. Hen. 8, as it did the words "actual possession in the 26th section of the Reform Act." course, any illusory act would have no operation, such as the payment of a penny for rent. The word "possession" has always had a technical and perfectly well understood meaning amongst conveyancers; and we have the highest authority for giving great weight to the practice of conveyancers.

Of

KEATING, J.-I am of the same opinion. We have been shewn, by the able argument of Mr. Williams, the distinction between a conveyance at common law and under the Statute of Uses. The authorities shew that the claimant had a "possession" under the Statute of Uses, and I think that is the "actual possession" intended by the Reform Act.-Judgment for the appellant.

[Before ERLE, C. J., and KEATING, J.] TEPPER, App., NICHOLS, Resp.-Nov. 22.

County franchise-Shares in a bridge-Equitable estate. By the 12 Geo. 1, c. xxxvi, certain commissioners were appointed for the purpose of building a bridge. By the 1 Geo. 2, c. xviii, the commissioners were empowered to convey the tolls and profits to persons contracting to build the bridge. The commissioners, by deed, granted the bridge, materials, tolls, and profits, with all the ground and soil adjacent vested in them, to trustees, in trust for the shareholders in the bridge, of whom the appellant was one:-Held, that the commissioners had no power to convey the land to the trustees, and that therefore the shareholders of the tolls and profits had no

estate in the land.

This was a consolidated appeal from a decision of the revising barrister for the eastern division of Surrey. The case for the opinion of the Court was, in effect, as follows:

Jan. 14. 1963.

The appellant and the other claimants stated, as the nature of their qualification, that they were respectively the holders of certain parts of one-thirteenth share in the Fulham and Putney Bridge.

By stat. 12 Geo. 1, c. xxxvi, s. 1, certain commissioners were appointed for designing, directing, ordering, and building a bridge across the river Thames, from the town of Fulham, in the county of Middlesex, to the town of Putney, in the county of Surrey, and for maintaining, preserving, and supporting the same when built; and they were empowered to design, assign, and lay out how and in what manner the said intended bridge should be made, erected, and built, and the ways and passages to and from the same, and to preserve and keep in repair such ways and passages from time to time, and to make contracts, and do all manner of things for carrying on and effecting the purpose aforesaid, and to cause the same to be done and perfected accordingly.

Sect. 2 required that an open passage of 700 feet should be left for the water.

Sect. 5 enabled persons under disabilities to sell and convey to the said commissioners, or their successors, or as they should appoint, all or any houses and ground which they should be seised or possessed of, or interested in, or any part thereof, for the purpose aforesaid, and that all contracts which should be made for such purposes should be valid.

By sect. 7 it was enacted, that his Majesty might incorporate the said commissioners, and that they and their successors should be able to have and purchase messuages, lands, rents, tenements, and hereditaments, and also to sell, grant, demise, aliene, or dispose of the same, or any part thereof, and to do and execute all and singular other matters and things that to them should or might appertain, with such powers and clauses as should be necessary or requisite for erecting, building, and supporting the said bridge, and the ways and passages thereto, from time to time.

By sect. 10, the commissioners were empowered to take tolls for passing over the said bridge.

By sect. 13, the commissioners were empowered, by indenture or writing under their common seal, to convey and assure the toll by the said act granted, or any part thereof, as a security for any sum or sums of money by them to be borrowed, for the ends and purposes aforesaid, to any person or persons advancing the same, for securing the repayment thereof, with interest at 51. per cent., or to grant annuities for lives, or for twenty-one years, payable out of the tolls.

By sect. 14, such annuities were to be personal estate. By sect. 16, the commissioners were empowered from time to time to remove shelfs, and to deepen the river. By seet. 17, all stone, bricks, planks, piles, and other materials used for making the bridge, were to belong to the commissioners and corporation aforesaid.

Sect. 18 enabled the commissioners to set up a temporary ferry, in the event of the bridge being damaged.

By sect. 19, the bridge was not to be built till satisfaction should have been made, as therein mentioned, to the owners of the then present ferries.

By sect. 22, nothing in the act was to prejudice or take away the right, property, or jurisdiction of the mayor, or of the mayor, commonalty, and citizens of the city of London, to, in, and upon the said river, other than and except to do everything necessary for erecting and maintaining the said bridge.

By stat. 1 Geo. 2, c. xviii, s. 1, the commissioners were empowered to contract and agree with any person or persons to erect and build the bridge, and to grant annuities in fee out of the profits, incomes, revenues, or tolls of the said bridge; such annuities to be assignable, and to be deemed personal estate.

By sect. 3, the commissioners were empowered to convey and assign over, in perpetuity or otherwise, all or any tolls, revenues, profits, or incomes of or belonging to the said bridge or ferries, or which should in anywise arise, accrue, or belong to the same, unto such person or persons as would contract to erect and build the said bridge, and to keep the same in repair, and should give security so to do.

By sect. 5, the commissioners were not to build the bridge without consent of the proprietors of the horse ferries-without satisfaction made to such proprietors. If such consent should be given, the bridge and tolls are to be in the first place chargeable with the sums to be paid to such proprietors; upon payment thereof, all ownership properties, and interests of, in, or to the ferries, were thereby extinguished; and the said ferries and passage over the river Thames there, and the ground and soil adjacent and belonging to the said respective ferries, were transferred to, and absolutely vested in, the said commissioners.

Previously to November, 1728, the rights and interests of all parties in the ferries referred to in the said acts were satisfied by the commissioners.

On the 19th November, 1728, a contract was entered into between the commissioners and thirty persons, who had subscribed 10007. each, whereby the said thirty persons contracted to build and maintain the bridge, and the ways and passages thereto, and make the said purchases and payments required by the said acts. In pursuance of this contract, the said thirty persons did build the said bridge, and make the said purchases and payments.

By indenture of bargain and sale, dated the 11th November, 1729, duly inrolled in Chancery, between the said commissioners, of the first part; the said thirty persons, being all the contractors and subseribers for building the said bridge, of the second part; and certain persons, as trustees, of the third part, the commissioners granted to the trustees, their heirs and assigns for ever, the said bridge, and all the materials wherewith the same was erected and built, and all tolls, revenues, profits, and incomes of or belonging to the said bridge so built, or the ferries thereafter to be set up, as occasion might be, according to the said acts, or which should in anywise arise, accrue, or belong to the same, with all such ground and soil adjacent and belonging to the then late or then present horse-ferries and passage over the said river, as had been, was, or should be, vested in the said commissioners, and all benefits, advantages, powers, privileges, and authorities, and every other matter and thing whatever vested in, or granted to, the said commissioners, which they were empowered or capable to assign and convey over, by virtue of the said acts, or either of them; to hold unto, and to the use of, the said trustees, upon trust to permit and suffer the said thirty persons, their heirs and assigns, to receive and take the said tolls, revenues, profits, and income, and to have the sole management and direction thereof, upon condition that they should thereout pay certain sums of money and expenses specified in the said deed (which condition had been performed); and after payment of such sums, should every year thereafter divide all the then rest and residue of the moneys to be raised by the said tolls, revenues, profits, and income of the said bridge and ferries, and other the premises, if any, unto and amongst the said thirty subscribers and proprietors for the time being, and their respective heirs and assigns, rateably according to their subscriptions, and according to their several and respective rights and interests, to have, take, and enjoy the same as tenants in common.

Proviso, that if the profits should be insufficient to keep the bridge in repair, and to pay all things afore

said, and the charges of the trustees in the execution of the trusts, such sums should be paid and borne rateably by the thirty.

By deed of the 16th June, 1730, the Archbishop of Canterbury granted to the proprietors of the Putney Bridge 200 superficial feet of land, part of Putney Churchyard, for the purpose of making the passage to and from the said bridge more commodious, and the same was used for that purpose, and when the case was stated formed part of the approach to the bridge. There was no other land in the county of Surrey vested in, or belonging to, or claimed by, the said proprietors, except what was comprised in the deed of the 11th November, 1792, and the 1st June, 1730. No evidence was adduced before the revising barrister as to the annual value of the said land.

The interest of the present shareholders in the bridge (about eighty in number) was identical with the interest vested in the said thirty persons under the said deeds, and had always been conveyed and transmitted, and dealt with, as freehold estate.

The proprietors managed their own affairs. The persons objected to were respectively holders of a share, or part of a share, of such interest as aforesaid, and the sufficiency of the annual money value of such share, or part of a share, was not in dispute.

The bridge was built partly on piles in the river, and at either end upon brick foundations, which stood respectively upon that part of the bank, between high and low water mark, whence formerly the ferries used to ply, and in part on land formerly adjacent and belonging to the said ferries. A brick toll-house stood at each end of the bridge on the brick foundation.

It was contended on the part of the claimants, that they had, under the two acts and the two deeds above mentioned, such equitable freehold estates in the said bridge, tolls, and other property comprised in the said acts and deeds as entitled them to votes.

The objector denied this, and also contended that the individual shareholders were members of a company, and also only entitled to a share of the rents and profits.

The barrister allowed the objection, subject to the present case.

The question for the Court was, whether the claimants were entitled to votes?

Karslake, Q. C. (Beresford with him), for the appellant. The appellant has an equitable estate; it is of sufficient value for the conferring a vote. The commissioners had the legal estate in soil, and conveyed it to trustees in trust for the shareholders, of whom the appellant is one. The holding was not a mere easement. [He cited Baxter, App., Brown, Resp. (7 Man. & G. 198) and Rogers on Parliamentary Electors, 135.]

Raymond, for the respondent.-The soil never vested in the commissioners. But for the act of Parliament, the materials which form the bridge would vest in the owner of the soil. The commissioners would only take what was necessary to carry out the purposes intended. The bed of the river would not be governed by the same rules as land generally. Even if the commissioners were the owners of the soil, they had no power to convey to trustees. The land is vested in commissioners for public purposes; they had no power to deal with the land beyond the purposes for which the land was vested in them. [He cited Badger v. The South Yorkshire Railway and River Dun Navigation Company (1 El. & El. 347); _Wood v. Hewett (8 Q. B. 913); Lancaster v. Eve (5 C. B. 717); Bennett v. Blain (10 Jur., N. S., 130); Bligh v. Brent (2 Y. & C. 268); and Rex v. Stratford-on-Avon (14 East, 340).] Karslake, Q. C., in reply.

Cur, adv. vult. ERLE, C. J.-By the acts relating to Putney

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Bridge, certain commissioners were appointed to carry out the provisions of those acts, and certain lands were conveyed to these commissioners for the purposes of the acts. The commissioners in 1729 granted to trustees all the bridge, and all the materials and the soil, in trust to pay the tolls and profits to certain persons, who now claim to have a vote in respect of their interest in the land. No doubt, if the commissioners, in whom the land was vested, had power to convey the land in fee, the claimants have an equitable freehold, and are entitled to a vote. The act 2 Geo. 2, c. xviii, appears to me to negative the rights of the commissioners to convey the land, because it expressly gives them only the power to convey the tolls and profits. I am of opinion, therefore, that the conveyance by the commissioners of the land to trustees was ultra vires. I take it to be the law, that where land is vested in commissioners for public purposes, such commissioners have no power to deal with the land for any but the purposes for which the land was vested in them. There was then no conveyance valid at law to trustees for the benefit of the claimants. They can, therefore, have no equitable estate in the land. KEATING, J., concurred.-Judgment for the respondent.

EXCHEQUER CHAMBER.

[Error from the Court of Exchequer.]

MICHAELMAS TERM.

[Before ERLE, C. J., CROMPTON, BLACKBURN, KEATING, MELLOR, and SHEE, JJ.]

BROADHURST v. BENHAM.-Dec. 1 and 2.

Composition deed-Bankruptcy Act, 1861, sect. 192. Covenant with the parties to the deed "respectively”— Non-assenting creditor.

A composition deed professing to be within the terms of the 192nd section of the Bankruptcy Act, 1861, recited that the debtor was indebted, amongst others, to the several creditors parties to the deed; and the debtor covenanted with "the several persons parties thereto of the other part respectively," that he would pay "unto all and every the present creditors of him," the said debtor, the sum of 5s. in the pound on the several amounts of their respective debts; and in consideration of the premises, and until default made, "each of them, the said several persons, &c., doth hereby, for himself and herself respectively, so far as relates to his and her own acts, deeds, &c., covenant with (the debtor), that they will not sue," &c.:-Held, that this covenant being with the assenting creditors only, the non-assenting creditors were not in so good a position as those assenting, and, therefore, that the deed was bad.

Error from the Exchequer, on a judgment on demurrer.-The demurrer was not argued in the court below, the judgment having been given upon the authority of Dell v. King (2 H. & C. 84; 10 Jur., N. S., 427), and upon a point not now decided in the judgment in error.

Declaration, for money payable by the defendant to the plaintiff, for goods sold and delivered by the plaintiff to the defendant, and for money found to be due from the defendant to the plaintiff on accounts stated between them.

Plea, that after the last pleading in this action the defendant was indebted to the plaintiff, and to divers other persons, and thereupon a deed, bearing date the 17th December, 1863, was made and entered into by and between the defendant of the one part, and the several persons whose names and seals were thereunto respectively subscribed and set, being severally cre

ditors in their own right or in co-partnership, or being agents or attorneys of the defendant, of the other part, relating to the debts and liabilities of the defendant, and his release therefrom; and the said deed (excepting the schedule thereto) was and is in the words and figures following; that is to say, "This indenture, made the 17th December, 1863, between Mark Benjamin Benham, of &c., of the one part, and the several persons whose names and seals are hereto respectively subscribed and set, being severally creditors, &c. of the said M. B. Benham, of the other part: whereas, the said M. B. Benham is indebted, amongst others, unto the several persons parties hereto of the other part, or their respective principals, in the several sums of money set opposite their respective names in the schedule hereto, and being unable to pay his debts in full, he hath agreed to enter into the covenants hereinafter on his part contained, and in consideration thereof the said several persons hereto of the other part have agreed to enter into the covenants hereinafter on their parts contained: now, this indenture witnesseth, in consideration of the premises, that he, the said M. B. Benham, doth hereby, for himself, his beirs, &c., covenant with the said several persons parties hereto of the other part respectively, their respective executors, &c., in manner following; that is to say, that he, the said M. B. Benham, his executors, &c., will pay unto all and every the present creditors of him, the said M. B. Benham, the sum of 58. sterling in the pound on the several amounts of the respective debts of such creditors, by two equal instalments, at intervals of nine and fifteen calendar months from the day of the date of these presents. And this indenture also witnesseth, that in consideration of the premises, and upon condition that and during such times only as the said M. B. Benham shall in all things well and truly perform and keep all and every the covenants and agreements in these presents contained in this behalf, each of them, the said several persons parties hereto of the other part, doth hereby, for himself and herself respectively, and for, and so far as relates to, his and her own acts, deeds, and demands, covenant with the said M. B. Benham, his executors, &c., in manner following; that is to say, that they, the said several persons parties hereto of the other part, &c., will not at any time or times hereafter, unless and until default shall be made in performance of the covenant or covenants on his part contained, or some, or some part of, such covenants or covenant, sue, arrest, prosecute, or molest, or do, or cause to be done, any act, matter, or thing, whereby, or by means whereof, he, the said M. B. Benham, his heirs, &c., or his or their lands or tenements, goods and chattels, shall or may be in anywise seized or arrested, prosecuted, detained, molested, at law or in equity, or otherwise howsoever, for or in respect of any debt or debts due or owing unto them, his said creditors, or any or either of them, from the said M. B. Benham; and also that he, the said M. B. Benham, shall and may from time to time and at all times hereafter, unless and until he shall make such default as aforesaid, have and be entitled to full and free liberty, have power and authority to go, pass, and repass &c. Further: that in case the said several persons parties hereto of the other part, their, or any or either of their, partners, executors, &c., shall prosecute at law or in equity, or do, or cause to be done, any act, matter, or thing whatsoever, whereby, or by means whereof, the said M. B. Benham, his heirs, &c., shall or may be sued, prosecuted, or molested for any such debt or debts now due as aforesaid, contrary to the foregoing covenant, and the true intent of these presents, then and in every such case he or they shall or may plead these presents in bar of any action or actions, suit or suits,

that may be commenced or prosecuted against him or them; and these presents shall operate as, and are hereby declared and agreed to be, an effectual and absolute discharge of the same; and, moreover, that they, the said covenanting parties, their partners, &c., respectively, will, upon full payment of the said composition of 5s. in the pound on the amount of their respective debts, upon the request and at the cost of the said M. B. Benham, his heirs, &c., make, give, sign, and execute unto him or them good and sufficient releases, acquittances, and discharges for the several debts now due and owing to them as aforesaid by the said M. B. Benham; and of and from all actions, claims, and demands whatsoever in respect thereof provided always, and it is hereby expressly agreed and declared, that these presents, &c. shall not extend to mortgages or other specific securities or liens which any of the creditors of the said M. B. Benham may have upon any of his property, or any security for or in respect of all or any of the debts so due and owing as aforesaid, or any bonds, bills, notes, or other securities given or payable by any other person or persons by way of security for the same debts, or any or either of them, but that all such several charges, mortgages, securities, liens, and bonds, bills, notes, and other securities from third persons as aforesaid, shall be and continue as available both at law and in equity. In witness whereof the said parties to these presents have hereunto set their hands and seals, &c. And a majority in number, representing three-fourths in value of the creditors of the defendants whose debts respectively amounted to 10l. and upwards, did in writing assent to or approve of the said deed, &c."

The plaintiff did not subscribe the deed. Demurrer. Mellish, Q. C. (White with him), for the defendant. This is an action by a non-assenting creditor, and the debtor has pleaded a composition deed made between himself, of the one part, and the several persons whose names and seals are set to the deed, of the other part. The deed recites that the defendant is indebted, amongst others, to the parties of the other part, and that he has agreed to enter into the covenants on his part contained; and that, in consideration thereof, the several persons of the other part have agreed to enter into the covenants on their part contained. It then witnesses, that the debtor, in consideration of the premises, covenants with the said several persons of the other part respectively, their respective executors, &c., that he will pay to all and every his present creditors 58. in the pound on the several amounts of their respective debts; and each of the several persons, parties of the other part, thereby, for himself and herself respectively, covenants with the debtor, that they will not sue him in respect of any debt, and that in case the parties of the other part should do so, the deed may be pleaded in bar. The covenant not to sue is confined, in terms, to the several parties of the second part; and the question is, whether this can be extended to all the world. It is submitted, that the Court will reject the word "respectively," if necessary so to do, the deed being clearly for the benefit of all the creditors. [Blackburn, J.-No doubt the draftsman intended that the deed should be for the benefit of all the creditors; but has he carried out that intention?] That he will pay "all and every the creditors," is surely language comprehending all. If the introductory part of the deed is not quite as full as the body, the Court will mould the introductory part to meet the difficulty, if the deed be really for the benefit of all the creditors. [Crompton, J.-He covenants respectively with the creditors, and they covenant respectively with him.] Yes; but they covenant, in consideration that he pays all.' In Clapham v. Atkinson (10 Jur., N. S., 357) the deed was held good, although the