result of that construction operated in favour of the tenant, which would not be the case if the views adopted here by Salter, J. are to prevail.

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In Nye v. Davis (sup.) Horridge and Shearman, JJ. held that an obligation on the part of the landlord of a flat to bring up his tenant's coals once a day and remove his ashes was attendance sufficient to take the tenancy in that case out of the Act. Salter, J. in the present case has expressed the opinion that the provision by the landlord of a minimum of furniture might be sufficient to bring a tenancy within the other exception-" use of furniture." I cannot refrain from saying that if either of these views be correct the result is, in my judgment, to make something very like nonsense of this exception. It seems to me impossible to believe that the Legislature could have intended by it that a tenant should lose all the benefit of the statute because, in the one case, he had not to carry up his own coals, and the substantial benefit of the Act because, in the other, he had the use of a few of his landlord's chairs. And it will not be forgotten that under the exception in the Act of 1915 the full benefit of the Act was, on this construction, lost in both cases with no protection at all from the presence of the words "bonâ fide.”

Accordingly, I ask myself, is the court imperatively required by the force of the language used to place such a construction upon this exception? In my judgment, nothing less constraining will justify it in doing so. In my opinion, we have no such burden laid on us.

I quite agree that as a mere matter of language, such a service as carrying up coals is attendance," partial though it be. I agree also that, in the same way, the use of a few chairs is the use of furniture," insignificant though they be. As a mere matter of words, each of these expressions may quite properly be taken to mean very little, although, with at least equal propriety they may be taken to connote a great deal more.

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But, in my judgment, so much may not be said of the third word "board" with which these two other expressions are associated. The word chosen is, it will be noticed, not "food" or drink," but "board." Food " may, of course, mean much or little; "drink," I hope, is entitled to an equally non-committal construction ; board," however, is a different word altogether. It is defined, I see, in Murray as "daily meals provided in a lodging or boarding house, according to stipulation the supply of daily provisions."

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The word, without suffix or affix, suggests, to my mind, sufficiency. It could never, I think, be satisfied by the provision, say of an early morning cup of tea. If you wish to accentuate its abundance you may call it "full board," but if you would convey that it is limited, then you must call it "partial" or qualify it by the use of some other adjective of limitation. It appears to me that the natural interpretation of the word as we find it in this exception involves the conception of a

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[CT. OF APP.

provision by the landlord of such food as, in the case of any particular tenancy, would ordinarily be consumed at daily meals and would be obtained and prepared by a tenant for himself if it were not provided by somebody else. If a de minimis construction of the word is open at all, and, deferring to my Lord, I must recognise that it is, it is, at least I think, not so fairly open as the other, a consideration which confirms the conclusion to which I have already on broader grounds been led with reference to that word, as well as to either of the other two expressions of the exception-" attendance and use of furniture." And if the reasoning of this judgment be so far justified, does it indicate any useful test or standard within the four corners of the Act by reference to which, in any particular case, the judge of fact can direct himself upon the issue whether the tenancy in question is within the exception of the statute or is outside it? I think it does. Remembering that the Act applies to prescribed tenancies of what I may call, for brevity, unfurnished and unattended houses, I think it may properly be said that a tenancy is within the exception and is outside the Act if the landlord receives payment for, and provides and prepares food for, his tenant's meals, which, having regard to all the circumstances of the case, the tenant would otherwise ordinarily provide for himself; or provides such attendance as, for ordinary household purposes, the tenant would, in the circumstances, otherwise provide for himself; or provides for the tenant's use so much furniture that, when it is in the house, that house can no longer be described as an unfurnished house. Notwithstanding the side note to sect. 9, it is not, I think, possible to say, as Avory, J. does, that the words use of furniture necessarily import that the house must be in the ordinary intendment of language, as applied to the particular residence, a furnished house." But in my judgment, to satisfy the words use of furniture in the place where they are found, it is at least essential that the furniture in the house of which the use is enjoyed is sufficient in quantity and character to require the judge to say that the house let is no longer one to which the Act normally applies-namely, an unfurnished house. This Act applies to many different kinds of houses, and to tenancies in all parts of the country, varying toto coelo one from another. What is "board," attendance," or use of furniture" in relation to one tenancy may be nothing of the kind in relation to a second. The County Court judge is the judge of fact in every disputed case, and he will, of course, have regard to all its circumstances. Directions for his guidance, if they are to be sound, must therefore be general. For that reason they may not in every case be helpful. But these which I have ventured to indicate are, at all events in my judgment, not without justification from the terms of the Act itself, and they would help, I should hope, to decide this and many other cases. I am of opinion that this appeal should be allowed, and

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for myself I would be for referring the case back to the learned County Court judge to decide the question between the parties, directing himself by the considerations which I have endeavoured in this judgment to explain.

Case remitted. New trial ordered.

Solicitors for the appellants, Blyth, Dutton, Hartley, and Blyth, agents for Graham-Hooper and Betteridge, Brighton.

Solicitors for the respondent, Radford and Frankland, agents for J. Lord Thompson and Weeks, Brighton.

Tuesday, March 6.

(Before Lord STERNDALE, M.R., WARRINGTON, and ATKIN, L.JJ.) ATTORNEY-GENERAL V. BURNS AND OTHERS (a). APPEAL FROM THE KING'S BENCH DIVISION.

Revenue-Estate duty-Property situate out of United Kingdom-Legacy duty paid on former death once and for all-Claim for estate duty— Legacy duty payable but for relationshipReason legacy duty not payable because it had been paid-Legacy Duty Act 1796 (36 Geo. 3, c. 52), s. 12—Finance Act 1894 (57 & 58 Vict. c. 30), s. 2, sub-s. 2.

J. B. bequeathed to the trustees of his will large sums of money to be invested and the income therefrom to be paid to his daughter during her life and after her death to hold the investments upon trust for her children in such manner and in such shares as his daughter should appoint, and in default of any such appointment for the children of his daughter in equal shares. J. B., who was domiciled in England, died in 1890, and legacy duty was paid under sect. 12 of the Legacy Duty Act 1796 upon 600,000l. the sum set aside to meet the bequest to the trustees for his daughter and her children. The daughter by her will exercised the power of appointment in favour of her children and died in 1900. The funds which passed under the power of appointment exercised by her will to her children consisted exclusively of stocks and bonds of American companies and corporations. The legacy duty was paid on the death of J. B. under sect. 12 of the Legacy Duty Act 1796 once and for all as the duty payable by the persons in succession was at one and the same rate. Sect. 1 of the Finance Act 1894 enacted that estate duty should be payable on property which passed on the death of the deceased, and sect. 2 of that Act provided for the payment of estate duty, and sub-sect. 2 of that section provided that property which passed on the death of the deceased when situated out of the United Kingdom, should be included only if, under the law in force prior to the passing of the Act, legacy or succession duty was payable in respect thereof, or would be so payable but for the relationship of the person to whom it passed. The Crown, however, claimed estate duty on the American securities passing on the death of the daughter to her children on the (a) Reported by GEOFFREY P. LANGWORTHY, Esq., Barristerat-Law.

[CT. OF APP.

ground that the legacy duty would have been payable but for the relationship of the parties. Sankey, J. held, that by reason of sect. 12 of the Legacy Duty Act 1796, legacy duty was not payable on the death of the daughter as legacy duty had been paid once and for all on the death of J. B. ; but that legacy duty would have been payable on the death of the daughter but for the relationship of the parties to whom the property passed, and that therefore estate duty was payable under sect. 2, sub-sect. 2, of the Finance Act 1894 on the death of the daughter in respect of the American securities representing her share under J. B.'s will. On appeal

Held, that the reason legacy duty was not payable on the death of the daughter on the American securities passing to her children under her will was not because of the relationship of the parties, but because it had been paid once and for all at the death of J. B., and consequently estate duty was not payable under sect. 2, sub-sect. 2, of the Finance Act 1894 on those securities on the death of the daughter.

Decision of Sankey, J. reversed.

INFORMATION by the Attorney-General.

Appeal from a decision of Sankey, J. (126 L. T. Rep. 672; (1922) 1 K. B. 491).

The following are the facts as stated by Sankey, J.

"This is a claim for estate duty alleged to be payable by the defendants on the death of the late Mrs. Burns. The facts are of a somewhat complicated character, but for the purposes of this judgment, they may be briefly stated, as far as they are material, as follows: Mr. J. S. Morgan died on the 8th April 1890. By his will dated the 23rd Nov. 1889, and proved in the Principle Probate Registry on the 7th May 1890, he left large sums of money to trustees to be invested for his daughter, the late Mrs. Burns, for life and afterwards to such of her children as she should by deed or will appoint, or in default of such appointment to her children in equal parts. The defendants are the present trustees, and it is admitted, for the purposes of this case, that the late Mr. Morgan was domiciled in England when he died. Legacy duty was paid on the sums in question by Mr. Morgan's executors. Mrs. Burns died on the 20th July 1919, and by her will dated the 2nd Dec. 1908, and proved in the Principal Probate Registry on the 19th Aug. 1919, she exercised the power of appointment given to her under her father's will in favour of her children.

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The funds representing the sums of money above referred to consisted exclusively of stocks and bonds of American companies and corporations, and the Attorney-General claims estate duty in respect of Mrs. Burns's share thereof under sect. 2, sub-sect. 2, of the Finance Act 1894 (57 & 58 Vict. c. 30), as being property which is deemed under that Act to have passed on Mrs. Burns's death and so is liable to duty." Sect. 2, sub-sect. 2, of the Finance Act 1894 is sufficiently set out in the head-note.

Sankey, J. held that, by reason of sect. 12 of the Legacy Duty Act 1796, legacy duty was not

CT. OF APP.]

payable on the death of Mrs. Burns as legacy duty, and had been paid once and for all on the death of J. S. Morgan; but that legacy duty would have been payable on the death of Mrs. Burns but for the relationship of the parties to whom the property passed, and that therefore estate duty was payable under sect. 2, sub-sect. 2, of the Finance Act 1894 on the death of Mrs. Burns in respect of the American securities representing her share under J. S. Morgan's will. On appeal by the defendants.

A. M. Latter, K.C. and Andrewes Uthwatt for the appellants.

Sir Ernest Pollock, K.C. and W. R. Sheldon for the Crown.

The arguments appear very clearly from the judgments.

Lord STERNDALE, M.R. (after stating that the facts were set out in the report of the case in the court below) said: I do not think that there is much question that the property passes on the death of Mrs. Burns. No question has been raised about that. But it was property which comes under sect. 2, sub-sect. 2, of the Finance Act 1894, because it was situate out of the United Kingdom. [His Lordship read the sub-section.] The question is whether legacy duty, which it is admitted would not be payable, is not payable because of the relationship of the person to whom the property passes. By relationship" I presume it means relationship to the person from whom it comes.

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The

Now, I think that the argument for the Crown may be not unfairly put in the way in which I put it during the argument. primary reason why legacy duty is not payable here is because it has already been paid. It has been paid under the provisions of sect. 12 of the Legacy Duty Act 1796, and I think, as I say, that the argument is something like this: Legacy duty here would be payable if it had not already been paid. It has been paid because the rates of duty payable by all the persons who could be entitled in possession are the same. In this case the rates of duty are the same because the relationship of all the persons in succession to the testator is the same. Therefore, it is not payable now because of the relationship of the person to whom it passes. And I think that they must go on to say that it does not matter that there are cases in which legacy duty would not be payable in circumstances like these, although the relationship which exists here did not exist. That seems to me to be rather a long train of causation, and I do not think it is sound, for this reason when you look at sect. 12 of the Act of 1796, I think it is fairly summarised by the learned judge, with perhaps a criticism of the word "charged," which he uses, though I do not think that he was using it in a technical sense of saying that the section was a charging section. He says: "It is a long section, but it enacts how duties on legacies enjoyed by persons in succession or having partial interests therein shall be charged," I think he meant

[CT. OF APP.

"shall be payable." Then he goes on to say "Two cases are there contemplated: (1) where the duty payable by the different persons in succession is at one and the same rate; (2) where the duty payable by the different persons in succession is at different rates or one or more of them is not liable to any duty. In the first of these cases the duty is payable as in the case of a legacy to one person—that is, once and for all; in the second case a different principle applies, and different times are enacted for payment by the different persons.” Now, when you look at the cases in which the rates are the same, there is, at any rate, one case in which the rates would be the same although no question of relationship enters into the matter at all, and that is a case where the first beneficiary in possession and all the others in succession are persons of no degree of consanguinity to the testator at all. In that case legacy duty would be payable once and for all, exactly as it would be in the case where the similarity was brought about by relationship, and, therefore, if the learned judge is right, there would be this curious result: that persons who paid the 10 per cent. duty as not being in any degree of consanguinity at all would escape estate duty here, because the legacy duty would not be payable-not because of the relationship, but because it had been paid, apart from the relationship altogether, whereas the persons who were in a degree of relationship would have to pay estate duty, because the similarity happened in those cases to be brought about by the relationship between the parties.

I think, as I say, that the argument for the Crown requires too long a train of causation. I think that the reason here why legacy duty is not payable is not because of any relationship between the parties, but because it has already been paid, and it has already been paid because all the persons in succession would pay the same rate of duty, and therefore would come under sect. 12, and the fact that that similarity is brought about in the case by the relationship between the parties does not seem to me to be enough to satisfy the words that legacy duty would be so payable" but for the relationship of the persons to whom it passes." It so happens that the result is brought about in this case by the relationship, but there is a case (it is quite true there is only one case), but there is a case under the Legacy Duty Acts in which legacy duty would not be payable simply and solely owing to the relationship of the parties, and that is the case of husband and wife and as there is a case which may be satisfied by these words, and as they have to be read with a very extended meaning, and in order to cover this case where legacy duty is not payable because it has been paid. I think that the learned judge's construction was not right, and that this is not a case where legacy duty would be payable but for the relationship of the person, but that it is a case where it is not payable because it has been paid for reasons which do not necessarily require any

CT. OF APP.]

relationship between the parties at all. The fact that it is brought about here by the relationship is, I think, an accident which we ought not to regard, and, therefore I think that the appeal should be allowed, or, rather, that the information should be dismissed.

WARRINGTON, L.J. (stated the facts and continued): Now, in my opinion, legacy duty in this case is not payable, not because of the relationship of the parties, but by reason of the fact that it has already been paid. It has been paid by virtue of the provisions of sect. 12 of the Legacy Duty Act 1796. The material provision in that is at the commencement of the section which provides that “the duty payable on a legacy or residue or part of residue of any personal estate given to or for the benefit of or so that the same shall be enjoyed by different persons in succession who shall be chargeable with the duties hereby imposed at one and the same rate shall be charged upon and paid out of the legacy as in the case of a legacy to one person "that is to say, it is paid at the death of the testator by whom it is given, or rather, to be accurate, when the legacy is paid by the executors to the legatee. It happens that in this particular case legacy duty has been paid, because the persons who take in succession are chargeable at the same rate, and they are chargeable at the same rate in this particular case by reason of the relationship they bear to the testator, namely daughter and issue of daughter. The fact that it is that relationship which brings about the fact that the duty is charged at the same rate is merely an accident in this particular case, and it is an accident which does not directly bring about the fact that the legacy duty is paid. It brings about the immediate result that the duty is at the same rate, and it is because the duty is at the same rate that legacy duty is paid. It seems to me that the real cause why legacy duty is not now payable is that it has been paid, and not because of the relationship of the parties to the testator.

I would point out, too, that if the contention of the Crown were correct it would bring about this curious result, that if the legatees had been strangers in blood to the testator the duty would still have been at the same rate, and would have been paid, just as it has been paid in the present case, and in that case it must be admitted, and is admitted by the Crown, that the duty they now claim would not be payable. It seems an extraordinary result, if the contention of the Crown be the right one.

There is one other point which has not been alluded to, but which is worthy of consideration, and that is, what is the meaning of "relationship" in this sub-section ? To whom is the relationship? It is described in the section in these terms " or would be so payable but for the relationship of the person to whom it passes." The point has not been argued, and therefore this is merely what appears to me at first sight; but I should have said that it means the relationship of the person to whom

[CT. OF APP.

it passes to the person from whom it passes. There is no other relationship referred to here at all. There is another matter to be mentioned. It cannot be contended that the construction here given to the section as applicable to this particular case gives no effect to it, because there is one relationship, at all events, which would come within the words "would be so payable but for the relationship of the person to whom it passes," namely, the relationship of husband and wife. On the whole, with all due respect to the learned judge, I think his judgment is not correct, and that the appeal ought to be allowed, and with the usual results.

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or,

ATKIN, L.J.-I agree. It appears to me that in the reading of sect. 2, sub-sect. 2, estate duty is not payable in this case unless legacy or succession duty is payable to begin with. I think that if legacy or succession duty has already been paid it plainly is not payable in respect thereof. But then comes an alternative or further clause or would be so payable but for the relationship of the person to whom it passes." To my mind, that clearly means being still unpaid, would be payable but for the fact that the relationship of the person to whom it passes by law exempts it from being payable," and, to my mind, that is not the case here. In this case the duty is not payable because it has been paid. It appears to me it would not be so payable but for the relationship of the person; it would be payable but for the fact that it has already been paid, which is quite a different thing, and if sect. 12 of the Legacy Duty Act 1796 is looked at, in no words, so far as I can see, in that section does the provision as to the payment of duty forthwith depend upon relationship. It depends upon the simple fact that the rates of duty are the same. In the case of succession, and in one case, and quite a common case, where the succession is in a series of gifts to strangers, or power of appointment to strangers, it is plain that it is paid then once and for all, not because of the relationship, but because there is no relationship. That is in the case of the 10 per cent. duty. Then, I think, when you couple with the difficulty of the construction which is put by the Crown, the fact that there is a very well-known exemption from paying duty on account of relationship, namely, the relationship of husband and wife, to my mind the construction of the section becomes reasonably plain. I agree, therefore, that the information should be dismissed, with costs, here and below. Appeal allowed.

Solicitors for the appellant, Bircham and Co. Solicitor for the Crown, Solicitor of Inland Revenue.

CHAN. DIV.]

The plaintiffs, freeholders of the manor of Barton Stacey claimed against the lord an injunction to restrain him from exercising sporting or fishing rights over their lands or letting the same to others. Defendant claimed the sporting rights under a grant of free warren appurtenant in 1302 or by immemorial user now called prescription or by prescriptive right exercised for 30 or 60 years; as to fishing that it arose from the original grant or had since become appurtenant by prescription.

Held, that the grant of free warren was indistinguishable from that in Morris v. Dimes (1 A. & E. 654), and was in gross, and that the evidence did not warrant the presumption of immemorial user or prescription either as to sporting or fishing. Plaintiffs were therefore entitled to the relief claimed.

THIS action was brought by freeholders at Barton Stacey, Southampton, against the lord of the manor for a declaration that he was not entitled to any rights of shooting or other rights of sporting whatever on certain farms in that parish the property of the plaintiffs. The plaintiffs asked for an injunction to restrain the defendant, his keepers, beaters, and servants from shooting on the farms and from letting or granting any sporting rights.

Roope Reeve, K.C. and Beebee for the plaintiffs. The plaintiffs were the owners of lands in the parish of Barton Stacey in fee simple. They did not admit that these lands were within the ambit of the defendant's manor. The defendant claimed to be entitled to the exclusive shooting and other sporting rights over the whole of the lands, and in exercise of his rights he had let, or purported to let, to one Lacey the exclusive sporting rights over some of them, and as to others he had himself, with his servants, exercised sporting rights, to the damage of the plaintiffs.

By his defence the defendant alleged that he and his predecessors in title had been lords of the manor from time immemorial, and had always exercised sporting rights, and he claimed to be entitled to do so. As to the rights of a freeholder in possession he referred to Busher v. Thompson (4 C. B. 48) and Jayne v. Price (5 Taunt. 326). Being freeholders in possession he submitted that they were entitled, primá facie, to all the rights of ownership and the onus was therefore on the defendant to prove This was agreed to.

his case.

(a) Reported by A. W. CHASTER, Esq., Barrister-at-Law.

[CHAN. DIV.

Gover, K.C. and Boraston for the defendant. -The presumption was that the manor was coterminous with the parish but some of the lands were not within the parish. It was not contested that they were seised in fee simple. The question was whether they were customary freeholds of which the soil was legally in the lord of the manor or ancient freeholds existing before the statute of Quia Emptores. The plaintiffs' freeholds were not such in the strict sense of the term. They put their case thus: (1) There was an express grant of free warren in 1302 to the defendant's predecessor in title of the manor, and the demesne lands which they were, were appurtenant to the manor; (2) so far as that grant was (a) not appurtenant or (b) extending to all the lands of the manor the defendant's rights arose by immemorial user now called prescription; (3) in any case, the defendant had a prescriptive right in the manor in the modern sense by user uninterrupted of thirty or sixty years. The plaintiffs also complained of the exercise of the rights of fishery. The defendant had a several and exclusive fishery, which arose from (1) the original grant with the manor; or (2) had arisen as appurtenant thereto since by prescription. These lands of the plaintiffs were within the manor. As to ancient demesne in the legal sense, they referred to the entry in Domesday Book relating to this manor. The rolls of the manor were missing. There was a grant of the manor by King John in 1199. Rights in waters were there mentioned. [They referred to Elton on Copyholds, p. 6; Williams Real Property, 23rd edit., p. 507; Scriven on Copyholds, 2nd edit., p. 38; and as to conveyance by fine, Williams, p. 73.] In 1908 the plaintiffs sought to enfranchise their land from the manorial rights. That was a recognition that there might be sporting rights although in 1920 they denied their existence. There were various meanings of the term ancient demesne: (see Bracton; Fleta; Stroud's Judicial Dictionary I., 591; Termes dela Ley, 107b). Prima facie, the lord had the whole manor. If they were not ancient freeholds they must have been customary freeholds or copyholds, but in either case the soil would be in the lord (Williams on Commons, 1st edit., p. 238; Bowelston v. Harvey, Cro. El. 547 ; Morris v. Dimes, 1 Ad. & E., 654). Warren appurtenant could arise by prescription and notwithstanding an express grant of a more limited nature (Beauchamp v. Winn, 6 E. & I. 238; Sowerby v. Smith, 31 L. T. Rep. 309; L. Rep. 9 C. P. 529; Lord Carnarvon v. Villebois, 13 M. & W. 313).

Roope Reeve submitted, first, that the defendant, on whom the onus lay of proving the existence of a right which had been judicially described as odious and against common right, had to prove his case strictly; and, secondly, that there was a presumption arising from the plaintiffs' possession that they held in fee directly from the King. There was no sufficient evidence that the plaintiffs' lands were appurtenant to the manor or that the manor was coterminous with the parish. Moreover, there