P. C.]

to pay a further sum demanded as the costs of making deed of reference a rule of court, the amount was not received

A. C Chadwick obtained a rule calling upon Potter to shew cause why he should not pay to Burns the amount awarded, with costs, or, in default. why judgment should not be entered against him.

W Sydney Smith shewed cause, and contended that the service of notice and demand on the attorney was insufficient, and that the subsequent alleged demand and notice, of the 9th February, could not under the award be relied

on.

He filed affidavits of Potter and others, and one of Mr. Drew, as follows:

That I was, some time in the month of December last past, served with the notice annexed, by Alexander Grey McMillan, attorney-at-law.

That I did not take any notice whatever of such service, nor did I inform the said David M. l'otter thereof, as I did not consider I was in any way bound to do so, as the said David M. Potter lives within a very short distance from the office of the said Alexander Grey McMillan, and could at any time have been served with such papers as were necessary to serve upon him; and further, I have never considered myself to be the attorney of the said David M. Potter in this matter, to receive service of papers herein, nor in any way to act for him in this mater, except to attend before the arbitrator as his agent upon the taking of evidence herein.

3. That the said Burns and McMillan were well aware that I never considered myself to be such attorney; for when they called upon me to sign the cousent to enlarge the time for the arbitrator to make his award, I distinctly refused os to do, and stated at the same time that the reason why I so refused was because I did not consider myself to be the attorney for the said Potter in this matter; and that in consequence of such refusal, the said Potter was called upon, and his personal signature was obtained thereto.

That when the said notice was served upon me I informed the said McMillan that, in my opinion, the proper way of notifying the said David M. Potter of the arbitrators' award in this matter would be by giving him a copy of the said award.

That the said McMillan was not the attorney for the said Burns, in the County Court suit named in the indenture of submission and arbitrators' award in this matter, Adam Scott Gillespie, who at the time of the commencement of said suit resided in the said village of Elora, having been his attorney in such suit; and I never had, as the attorney for the said Potter, any notice of the said Burns having changed his attorney.

That the said Alexander Grey McMillan never produced to me any authority from the said Burns to demand and receive the moneys mentioned in the said award in this matter to be paid by the said Potter to the said Burns, nor am I aware that he ever had any such authority." Chadwick contra, relied upon Rothwell v. Timbrel, 6 Jur. 691, and Hawkins v. Benton, 2 D & L 465.

HAGARTY, J.-The award is clear that the sum awarded is not payable until ten day, after notice of the award. The notice given was to

[C. L. Cham.

Mr. Drew, who had acted for Potter in the matter of the reference, but it seems that gentleman had previously declined to sign a consent to enlargement, referring the parties to his client, who signed personally.

It is clear that when, under the old practice, an attachment was intended, all the services had to be personal. In 2 Archbold's Practice, 1596 (Edition of 1856), it says, "the same formalities as to personal service of copy of award for and demand of performance are in general required as when an attachment is sued for. A personal demand of the money may be dispensed with when the party is evidently keeping out of the way to avoid the same." Same language in 12th edition, 1700. Winwood v. Hoult, 14 M. & W. 197, and a later case, Smith v. Troupe, 7 C. B. 763, seem to point to the same issue. Hawkins v. Benton, 2 D. & L. 466, is express, the defendant was not served, he was an attorney, and his London agent had applied for copy of award, which was sent to defendant's address in the country. See also Russell on Awards, 615, 616 (Edition of 1864).

In the case before us, Mr. Drew disclaims all right to represent Potter, and the latter swears he had no notice of the award or of the amount payable by him thereunder, until he was served with the rule of court, &c.

Under these circumstances, I cannot hold that the proceedings taken are sufficient. I think that due notice was not given prior to serving the rule, and that Potter has been improperly called on to show cause. He seems to have been ready and willing to pay the amount when required, and I do not see how I can refuse giving him his costs.

Rule discharged with costs.

COMMON LAW CHAMBERS.

(Reported by HENRY O'BRIEN, Esq., Barrister-at-Law and Reporter in Chambers.)

IN THE MATTER OF A SUIT IN THE SIXTH DIVISION COURT OF THE COUNTY OF WENTWORTH, BETWEEN WALTER BRADSHAW, PLAINTIFF, AND EDWARD DUFFY, DEFENDANT.

Prohibition-Jurisdiction of Division Courts -Title to land, -Fences.

A., intending to make a line fence between his land and that of B., by mistake made the fence on B's land. Afterwards, a correct line having been run. it was agreed that A. & B. should each make a portion of the fence on the correct line. B, in making his share, used the rails of the old fence made by A. A sued B. in the Division Court for the price of the rails so used, and the judge having decided in his favour, B. applied for a prohibition, but held, that the judge had jurisdiction.

[Chambers, February 7, 1867.]

An action was brought in the Sixth Division Court for the county of Wentworth, for $28, being amount awarded by Peter McLagan, Edmund Smith, and Eliza Mann, fence viewers of the township of Ancaster, as payable by said defendant to said plaintiff for share of line fence and rails between lots 33 and 34 of the 4th concession of said township.

The case was tried before his Honor JudgeLogie, at Ancaster, and evidence given beforehim in substance as follows:

That the plaintiff had put up a line fence

many years ago on what was supposed to be the line between his lot and an adjoining lot, which was subsequently purchased by Duffy, the defendant. Some time after the defendant had purchased the adjoining lot, he got a surveyor to run the line between him and the plaintiff, and the surveyor, in running this line, took in a triangular piece of land from the plaintiff, of which he had been in possession. In order to save litigation, the parties entered into an agreement to run the division line through the middle of the triangular piece of land, dividing it equally between them Fence viewers were got to determine the portion of the fence which each party should erect and maintain, and each party erected his part of the fence on the line agreed upon. In doing so, Duffy, the defendant, used the rails of the fence which had been originally erected and maintained by Bradshaw, the plaintiff. but which fence by the agreement was upon the land taken in by the defendant. The plaintiff brought the suit for the value of the rails so taken by the defendant.

The learned judge reserved his judgment, which he subsequently gave in writing, in favor of the plaintiff, as follows:

"It is no doubt the case that, in general, erections put upon lands by a person not the owner cannot be removed, but become the property of the owner, as forming part of the freehold, and probably a fence would be considered part of the freehold. The law is however modified in favor of those who, in consequence of an unskilful survey, have made improvements upon lands as their own which, on a correct survey being made, turn out to belong to a neighbour. Section 53 of chapter 93 of the Consolidated Statutes for Upper Canada provides that, in such cases, the owner of the land, in an action of ejectment, shall not recover possession until he pays for the improvements, the value of which are to be assessed by the jury.

It has been held, in Campbell v. Fergusson, 4 U. C. C P 414, recognized in Hutton v. Trotter, 16 U. C. C. P. 367, and Morton v. Lewis, 16 U. C. C. P. 485, that the act applies to private surveys made on the defendant's own account, as well as to public surveys; and in the last named case, Morton v. Lewis, it was held that fences were improvements within the meaning of the act

In this case, supposing that no agreement had 'been made between these parties about the land, and that Duffy had brought an action of ejectment for the land, Bradshaw would have had a right under the statute to assess against Duffy the value of bis improvements, including the value of the fences; and Duffy would have had to pay for the improvements before he could recover possession, and Bradshaw ought not to be placed in a worse position in consequence of the agreement settling the line, than he would have been in if an action of ejectment had been brought against him. I think, both legally and equitably, the plaintiff in this suit is entitled to recover for the value of the rails, which originully belonged to him, and which defendant used in the erection of his part of the fence But I cannot allow him for old rails what new ones (which it may reasonably be expected would last much longer) would cost."

On the 28th January last, O'Reilly, Q C., ob

[C. L. Cham.

tained a summons calling on the plaintiff, Bradshaw, and the Judge of the County Court of the County of Wentworth, to shew cause why a writ of prohibition should not issue to prohibit all proceedings in this matter, and upon an order for payment made by the said Judge of the County Court of the County of Wentworth, presiding in the Division Court, on the ground that the said judge had no jurisdiction to try or adjudicate upon the matters tried and adjudicated upon by him in the said suit in the said Division Court.

Spencer showed cause, and objected that the summons did not state the grounds upon which the application was made with sufficient particularity That the title to lands did not come in question, the contention simply being whether a Judge of a Division Court could adjudicate upon the question, fixture or no fixture. if he can, and there is no doubt that he can, he had jurisdiction in this case, and there can be no prohibition. The question is as to the ownership of the rails, not of the land. Rails cannot, under the circumstances of this case, be considered as part of the realty.

O'Reilly, Q C.-The summons is sufficient, and want of jurisdiction may be shown by affidavit. (This point was not pressed by the other side, the learned judge being against the objection)

Ferces are a part of the realty and go with the land, and the judge had no jurisdiction to try a case where the title to land came in question.-Elwes v. Maw, 3 East. 38; Thresher v. E. London Waterworks Co. 2 B. & C. 609: Steward v. Lombe, 1 B. & B. 506; Colgrave v. Diosantos. 2 B. & C. 76; Bunnell v. Tupper, 10 U. C. Q. B. 414; Amos & Ferrard on Fixtures, 9, 13.

Even if the judge had power to decide as to whether the fence was or was not a fixture, he could not by deciding that question wrongfully thereby give himself jurisdiction, when in truth he had no jurisdiction. The equities of the case are with Duffy, who for the sake of a settlement gave up a strip of his land.

HAGARTY, J.-I am of opinion that I should not order a prohibition in this case, or interfere with the decision of the learned judge. I am not dissatisfied with his view of the facts; and with the powers vested in him by the statute. I cannot say he has decided erroneously. When the fence-viewers awarded that Duffy should maintain a specified portion of the boundary fence, and to do that he took away the rails formerly furnished by Bradshaw, to maintain what used to be a division fence on land now discovered to be Duffy's, I cannot say it was beyond the learned judge's power to decide that such rails so removed from the freehold to which they were perhaps in a manner annexed, should not be paid for by Duffy when used by him to erect the new fence, which he was bound by the award to maintain. They were originally Bradshaw's property, and put there for a special purpose, not to become part of Duffy's freehold in any view of the parties. By the new survey and agreement, that fence ceased to answer the intended purpose, and a new fence is to be erected instead. Duffy is bound to maintain part of the new fence, and he takes up these rails and uses them to fulfil his obligation.

I think Duffy must pay the costs of the parties whom he has unnecessarily brought here.

THE QUEEN v. MOSIER.

Habeas Corpus-29, 30, Vic. cap. 45-Revisory powers of judges of Superior Courts over decisions of magistratesJurisdiction of Police Magistrates.

The 29 & 30 Vic., cap. 45, had in view and recognized the right of every man committed on a criminal charge to have the opinion of a judge of Superior Court upon the cause of his commitment by an inferior jurisdiction. The judges of the Superior Courts are bound, when a pri soner is brought before them under that statute, to examine the proceedings and evidence anterior to the warrant of commitment, and to discharge him if there does not appear sufficient cause for his detention.

The evidence in this case warranted the magistrate in requiring bail.

Police Magistrates have jurisdiction both in cities and counties.

[Chambers, March 4, 1867.]

D. B. Read, Q C., obtained a writ of habeas corpus to bring up the body of one John Mosier who was a prisoner in the common jail of the county of York, charged with an assault on Dr. Hunter, of Newmarket, with intent to do him grievous bodily harm; and on the same day he obtained a writ of certiorari, directed to Alexander McNabb, police magistrate for the city of Toronto, to send up the proceedings had before him, upon which the warrant to commit the prisoner had been founded.

On the return of these writs, the evidence taken before the police magistrate at Newmarket was produced and read, from which it appeared

That the municipal election for the village of Newmarket was to be held on Monday, the 7th January, 1867, and that Dr. Hunter was one of the candidates; that he had made arrangements to go with a Mr. Atkinson to Queensville to see a man by the name of Stiles, but on Sunday night, the 6th of January, it was arranged in the presence of Mr. Campbell, Mr. Hodge and Mr. McMaster, at Dr. Hunter's own suggestion, that he should take Mr. McMaster's horse and cutter and drive himself to Queensville, instead of going with Mr. Atkinson, as had been arranged the evening before. Although Dr. Hunter does not remember Mosier's name being then mentioned, he said it was tacitly understood that Mosier, who was Mr. McMaster's agent, was to call him early, and although no hour was named, he seems to think it was to have been at 5 o'clock. At 5 o'clock there was a noise heard at Dr. Hunter's door, which awakened him. He got up and found it was Mosier, who came in and said he came to awaken him-that he was afraid he would oversleep himself. Dr. Hunter asked him to stop and get some breakfast, but he said that he would go and get the horse and cutiter ready. He remained some time-five or ten minutes. The arrangement was that he was not to return, and Dr. Hunter was to go down to Mr. McMaster's; it was five or six hundred yards from his house. Dr. Hunter got breakfast and asked the girl what time it was, and he was told it was half-past five. He then got up and put on his overcoat and overshoes and muffler. About 25 minutes to six o'clock Dr. Hunter left his house on Timothy street to go to Mr. McMaster's house on Main street, and took the direct road to it. Timothy street goes into Main street at right angles. As Dr. Hunter left his house he saw some one to

[C. L. Cham.

As

his right on Timothy street, two or three rods from him, but who was behind him. When he went towards Main street he heard his steps on the snow behind him, and partially turned round and saw the man, and he heard him following him. When about half-way down to Main street he heard as if some one was walking behind him, and he got a violent blow as if a sudden concussion, and this is all he remembers. "He was deprived of consciousness. He had been walking slowly, expecting the person to come up. It flashed through his mind it was perhaps Mosier waiting for him, but he did not form this opinion from his form or appearance. When the person following him did not overtake him, he thought that it was Mosier, but he did not turn far enough round to see who struck him, but before he was struck, and just as he was turning round to see who was following him, the thought occurred to him that it was Mosier. far as he can tell he was struck one blow. The blow was on the upper part of the spine. He could not say how long it was till he became conscious. His first recollection was hearing the 6 o'clock bell ring. He was lying on his face and side; no one near. He could not rise, and his tongue was partially paralyzed from the effect of the blow. He called as loud as he could, and one Dennis came up, and then went and brought Mr. Landy, who took him home, where he was confined to bed for five or six days, but his neck and spine were painful for fourteen days. No one, he says, knew that he was to be out at that particular time but his servant girl and Mosier his cross-examination he said he did not say it was Mosier who struck him, or that he had any motive for assaulting him. All his knowledge of him would lead him to believe that he was his friend, but he says he accused Mosier of apathy at the election in January last. He thought he ought to have influenced his brothers-in-law, one of whom was strong against him, and he says distinctly there was no arrangement that Mosier was to come back for him.

On

William McMaster said he was the person referred to by last witness (Dr. Hunter) Mosier did not know from him of any arrangement with Hunter to lend him his horse and cutter to go to Queensville. Mosier does not live at his place, as he is married. McMaster undertook to wake Hunter on Monday morning On Monday morning Mosier woke witness by throwing snow on his window, and when he found it was Mosier he told him to come up to his room. He had directed Mosier to waken him on Monday morning at five o'clock, but gave him no reason, but thinks he had told Mosier to waken him; that he had arranged with Hunter to go to Queensville with his horse and cutter looked at his watch when Mosier wakened him, and it was about five o'clock. He heard Mosier go out to the street after he got his instructions, and in about fifteen or twenty minutes he saw Mosier return into his yard. He looked through the window and recognized him, and did not see him after this till six o'clock, but heard him moving the sleigh in the yard. He heard him after this go out of the yard and go up the street, and he had only been gone a few minutes when he heard him running like as for his life. He ran into the yard and up into wit

He

ness' bedroom without slacking his speed. It was about twenty or thirty minutes after he came in before he went out again. This was the time that he went out after he had returned from waking Hunter. Witness asked Mosier what was the matter? He replied to hurry and come down and he would tell; he said tell him then; and he then said Dr. Hunter had been nearly killed dead; some one had attacked him. He told Mosier to go and waken Dr. Hunter, and then to go and get the horse and cutter to go to Queensville. McMaster, when he went down stairs after hearing of Dr. Hunter's being beaten, found Landy, Atkinson and Mosier down stairs. does not remember looking at his watch, but it was almost daylight. When he got to Dr. Hunter's the lamp was lighted. On his cross-examination he said that if Mosier had gone out in the ordinary way he would bave heard him. He did hear some noise in the yard, and thought it was Mosier attending to his work. When he saw Dr. Hunter at his own house he was lying on the sofa and seemed unconscious. On his re-examination he said it was between seven and halfpast seven when he saw Mosier ready with the horse to go out.

He

John Dennis said he remembered the 7th January. He saw Dr. Hunter about fifteen or twenty minutes past six that morning He was lying about five or six rods from his own door. He had gone to Dr Hunter's to enquire for him, and was told he had gone to McMaster's half an hour before. He then went towards McMaster's, but while yet on the steps of Dr. Hunter's house heard dismal groans, and when he came down the steps he saw a black object lying on the snow. He turned him over and saw it was Dr. Hunter lying on his face. He was bleeding from the mouth and nose. He attempted to raise him but could not, and then ran to his house for Mr. Landy and went to call Mr. Allen, and came back when Landy came out, and they went and carried the Dr. to his own house, with difficulty. The Dr. appeared to drag his feet as if trying to walk. He was unable to walk and they carried him to his house. He complained of being badly hurt somewhere about the back of the neck. He soon after returned to his own house, which is the same side of the street as Dr. Hunter's, but west of it and further from Main street. Landry went in for a minute, as he was not quite dressed. They then went to McMaster's, and they met Atkinson and then Mosier.

It was

not more than twenty minutes from the time they first saw Dr. Hunter on the sidewalk till they got to McMaster's house, where they stayed not more than five or ten minutes.

On his cross-examination he says when they met Mosier they told him what had happened to Dr. Hunter, and he seemed to be very much surprised, as much as any one could be who had not heard it.

McMaster, on his being recalled, says he judged it to be from twenty to thirty minutes after Mosier returned from waking Dr. Hunter that he went out the second time, and it was about fifteen or twenty minutes from the time he wakened Dr. Hunter until he returned. says he thinks it was after the ringing of the town bells that Mosier went out the second time. He says he is tolerably sure it was after the

He

[C. L. Cham.

ringing of the bells that Mosier went out the second time.

Landy corroborated the statement of Dennis. He thinks it was twenty minutes past six when they got to McMaster's after taking the Dr. in, and he thought from what he saw that Hunter's life was in danger, and he says they met Mosier and told him about their finding Dr. Hunter and carrying him to his house.

James Allen says that John Dennis came to his house, knocking at the door, and he asked me to come out quick; that Dr. Hunter was killed. Dennis then left, and he went into his room to put on his clothes, but before he had finished Dennis came again and called me to come quickly, and he went to Dr. Hunter, and saw the Dr. there.

D. B. Read, Q. C., (Harrison with him) on behalf of the prisoner, after reading the evidence, contended that the proceedings and examinations had taken place in the county of York, but that the warrant had been issued in the city of Toronto. That, under the provisions of the statute 29 & 30 Vict. cap. 45, the judges of the superior courts had a revisory power given to them, and were bound to examine the proceedings, "and to the end that the sufficiency thereof to warrant such confinement or constraint may be determined by such judge or court." That upon such examination it would appear that there was no evidence against the prisoner to warrant his commitment, and that he ought to be discharged.

D. Mc Michael, for the crown, argued that the return showed that the magistrate had ordered that the prisoner should enter into his own recognizance for $500 to appear at the next Assizes to be held in and for the county of York, on the 8th day of April next, to answer to any indictment which might be then and there preferred against him, which he had refused, but asked to be committed to the next court of competent jurisdiction, on bail, and was therefore committed. That the prisoner had now all that he was entitled to have, for the statute only authorized the judge to bail the prisoner, not to discharge him. That the 5th section of this act was only in furtherance of the 3rd section, and gave no revisory or other power greater than it conferred That it was not the intention of the legislature to make a judge in chambers a court of review from the proceedings of magistrates. That this intention, and the construction he put upon the 3rd and 5th sections was to be inferred from the fact that the statute gave an appeal from the court into which the proceedings were to be returned by the judge to the Court of Appeal, but did not give it from the decision of a single judge. That the duty of justices of the peace was pointed out in the Con Stat. C cap. 102, sec. 57; and he is authorized to determine, upon the evidence, whether the accused shall be committed for trial, bailed or discharged. That the judge ought not to interfere with his deci sion. That the power of this police magistrate to deal with this question was cleat from ss. 357360 of the 29 & 30 Vic. cap. 51. He was ex officio a justice of the peace for the whole county, and could issue any warrant or try and investigate any offence in a city when the offence has been committed in the county in which such city lies, or which it adjoins.

C. L. Cham.]

J. WILSON, J.-On the question of jurisdiction it is clear, from s. 357 of the 29 & 30 Vic. c. 51, that the police magistrate is ex-officio a justice of the peace in and for the county of York; and, by s. 360, a justice of the peace for a county in which a city is may try and investigate any case in a city, when the offence has been committed in the county or union of counties in which such city lies, or which such city adjoins. The police magistrate had therefore jurisdiction, &c, both in the county and city, and the proceedings are legal in this respect.

Our late statute 29 & 30 Vic. cap. 45, is chiefly taken from the imperial statute 56 Geo. III. cap. 100, but the 5th section is new. Writs of certiorari had in practice been issued in vacation by order of judges in chambers in this province previous to the passing of this act, but the learned Chief Justice, in the case of The Queen ▾ Burley, 1 U. C. L. J. N. S. 34, for extradition, doubted the power of judges to order these writs in vacation, and it was proper that all doubts should be removed respecting this practice. In that same case it was intimated that, in the opinion of some of the judges, every man committed on a criminal charge had the right to have the opinion of one of the Superior Court judges pass upon the cause of his commitment by an inferior jurisdiction.

In my view of this clause it had reference to both these opinions. Before this act was passed, when by the return of the habeas corpus and the proceedings upon which a prisoner stood committed, it appeared that the commitment was illegal, it had been the practice for judges in chambers to discharge him.

It is true that the power to determine upon the sufficiency of the proceedings to warrant such confinement is not given in direct words, but it is certainly by the plainest implication. The habeas corpus and its return show the immediate cause of the detention, which may on its face be all right, but section 5 of the act goes further, and authorizes the issue of a writ of certiorari for the production before the judge of all and singular the evidence, depositions, convictions, and all proceedings had or taken touching or concerning such confinement or restraint of liberty. Why? "To the end that the same may be viewed and considered by such judge or court, and to the end that the sufficiency thereof to warrant such confinement or restraint may be determined by such judge or court."

The third section of the act has reference to the truth of the facts stated in the return to a writ of habeas corpus Before the 59 Geo. III. there was no way of enquiring into the truth of the facts as stated in the return. They might be good as stated but untrue in fact. It was so here until last year, but with no practically bad result, for we have had no case in which a false return has been suggested. Now, the truth of the facts in the return law can be enquired into in the m nner pointed out by the 3rd section. I do not, however, see, as has been contended for here, how the fifth section is to be construed as referring to this, or in aid of it only It appears to me that it has a different object to the one which has been already mentioned.

[Chan. Cham.

Adopting the views expressed, I cannot help holding that a judge is bound to the examine proceedings anterior to the warrant, to see that they authorize it, and if they do not that he is bound to determine whether they warrant the detention, and if not to discharge him

In this case the prisoner is so far in voluntary custody, for all he was required to do was to enter into his own recognizance. He refused and was committed. I find him in prison, and so entitled to the benefit of the act, in strict right.

By stat. 22 Vic. cap. 102, s. 57, when all the evidence upon the part of the prosecution against the accused has been heard, if the justice be of opinion that it is not sufficient to put the accused party upon his trial for any indictacle offence, he shall forthwith order him to be discharged as to the information then under enquiry; but if in the opinion of the justice the evidence is sufficient to put the accused party upon his trial for an indictable offence, although it may not raise such a strong presumption of guilt as would induce such justice to commit the accused for trial without bail, &c., then such justice shall admit the party to bail, &c. In this respect the police magistrate has complied with the provisions of the statute. He did not think it was a case where the presumption of guilt was so strong as to induce him to commit the prisoner for trial without bail, but still a case for which he thought bail ought to be required.

I agree with the police magistrate that it was a case which justified him in requiring bail.

CHANCERY CHAMBERS.

(Reported by MR. CHARLES Moss, Student-at-Law.)

AIKINS V. NELSON.

Notice of motion-Endorsement on of name and place of business of Solicitor by whom given-Leave to amend.

[Chambers, January 11, 1867.] This was an application to open the biddings, made at the sale of lands in this suit.

It was objected that the notice of motion was not endorsed with the name and place of business of the solicitor by whom it was served, in accordance with order 43, sec. 2, and, this being the first proceeding in the cause on the part of the applicant, order 32 of the orders of Sept 10, 1866, did not apply.

THE JUDGES' SECRETARY Considered the objection good, but gave leave to amend the notice of motion and bring on the application again forthwith, upon payment of costs. See Rice v. Webb, 2 Hare, 511; Hill v. Maguire, V. C. Esten, February, 1862.

RE JACKES.

Land belonging to infants-Renewal of lease of-12 Vic. cap. 72-Imp. Act 11 Geo. IV. and 1 Wm. IV. cap. 65, sec. 16, The Court of Chancery can act, in selling or leasing infants' estates, under the stat. 12 Vic. cap. 72, only when it is of opinion that a sale, lease, or other disposition of the same, or any part thereof, is necessary or proper for the maintenance or education of the infant, or that by reason of any part of the property being exposed to waste, &c., his interest requires or will be substantially promoted by such disposition."

Upon a petition, styled in the matter of the infant and in the matter of 12 Vic. cap. 72, and 29 Vic. cap. 28, for the