having held them some time, when the landlord seeks to recover them, to turn round and say, "Very well, you may take them if you can ascertain which they are, and you may proceed by ejectment," which the landlord could not do if he could not distinguish the boundaries of his own lands.

It is said that these lands were handed over to the Earl of Portland for the purpose of confusing the boundaries. It would require strong evidence to prove that such a contract was entered into. Of course a man might desire to hold the whole of his property without fences or other unsightly boundaries, and might possibly for that purpose stipulate that he should be allowed to remove the hedges or other like marks; but at the same time the parish would take care to have their land distinguished, so as to be separable. There are many ways of doing that, and it was the duty of the earl to see that it was done.

Then it is said there was no privity between the successive tenants of this parish land; but that every owner in fee who came in took the property with the boundaries confused, and therefore the parish is not now entitled to have the boundaries ascertained against the Defendant. I doubt whether that argument is sound. I do not think that a [744] series of owners of land in fee-simple, who for their own convenience have been allowed to occupy the land of other persons which is mixed with their own, can be regarded as under no obligation to keep that land distinct, because there is no privity between them in respect of it. I think that it is impossible to maintain such a proposition. Take the case of the lord of a manor who has resumed by forfeiture or otherwise copyholds mixed with the surrounding freehold lands, and suppose the owner of the freeholds, having no connexion or privity with the owner of the copyholds, should take a grant of them because they are convenient to hold with his freehold lands; though the boundaries were undistinguishable at the time, he would be liable to a commission to ascertain them, as was decided in The Duke of Leeds v. The Earl of Strafford (4 Ves. 180); for the lord might say, "You took as my tenant, and it is your duty to have my property at all times distinguishable for me when I require it." The alleged want of privity does not deprive the charity of the right to have the boundaries ascertained.

Then it is said there is no proof that the Defendant has the original parish land at all. Assuming it to be established that those six acres and a half have been held in some manner or other by the successive owners of land who derive their title from the earl, still it is said that the land has been subdivided, and upon such division those who took the land now belonging to the Defendant indemnified the holders of the rest of the earl's estate against this rent, but that there has never been any admission that the parish land is in fact part of the land now in the possession of the Defendant. This question is of some importance, because there is considerable ground for supposing that, at the period when only a house and about thirty acres of [745] land were in the possession of some of the Defendant's predecessors, no portion, or only a small portion, of the parish land had been held by him and those through whom he claims. But it is important to see on what account the rent of £6 a year has been paid by the Defendant and his predecessors. The receipt given after the parish had determined to raise this question is in a form in which perhaps it ought not to have been given, at least without some intimation to the Defendant. He is in that receipt treated as tenant from year to year. But the Defendant and his father have before that time accepted receipts as for rent of parish land. The SolicitorGeneral contended that the acceptance of a receipt of this kind was no admission on the part of the person who took it. I was surprised to hear that argued. I cannot conceive a stronger admission than a receipt-a document which is the discharge of the person who takes it-as evidence of the character in which he made the payment for which it is given. Receipts of this kind have, in some cases which go rather far, been held alone sufficient to prove a tenancy. In Hitchings v. Thompson (5 Exch. 50) the question was very similar, namely, whether there was evidence to go to a jury that the Defendants in a replevin suit were landlords. The evidence produced to shew that was a receipt signed by their agent, Daniel Horwood, in this form :— Received, for the trustees of Mr. and Mrs. W. Clarke, of Mr. Hitchings, £5, 58., being for half a year's rent for the house and premises, situate in the parish of St. Philip and St. James, Bristol, due, &c.-Daniel Horwood." Horwood was the agent

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or receiver of the trustees of Mr. and Mrs. Clarke, and had been so for a long time; Hitchings had been paying them without asking the names of his landlords; new trustees had meanwhile [746] been appointed; the first set of receipts were those of the first trustees, A. and B., and the second set of the new trustees, X. and Y.; and the argument was that it was not shewn that the Defendants had any title, nor was the trust deed shewn under which the landlords were changed; but the Court held there was evidence to go to a jury, without proving the title of the new trustees; and that, although the receipts given in their time were in exactly the same form as those given previously, there was quite sufficient evidence to go to a jury to shew that the relation of landlord and tenant existed. That is as strong a case as could be.

Then, what is the result of this acknowledgment of tenancy? An acknowledg ment of tenancy has been held in a number of cases to amount to estoppel, so as to prevent the party who acknowledged himself to be in the position of a tenant from denying in any way the right of the landlord in respect of the property for which he has been paying rent. In Gouldsworth v. Knights (11 M. & W. 337), according to the marginal note, which is correct, "Certain land was vested in trustees upon trust to apply the rents to the repair of a parish church. Those trustees in 1818 demised to S. for ten years, and again in 1828 for ten years more, which lease expired in 1838. During the lease S. assigned to the Plaintiff, and after the expiration of it, the Plaintiff continued in possession, under the trustees, paying rent to them. The trustees afterwards, and after the 59th Geo. 3, c. 12, came into operation, namely, in 1842, assigned by deed to new trustees, two of whom were the churchwardens of the parish at the time that a distress for rent was made. Held that the payment of rent to the old trustees was evidence of a new taking under them as tenant from year to year, which precluded the Plaintiff from contesting the [747] title of the old trustees, and that the new trustees who claimed under them by deed of assignment, had a good title by estoppel." That is to say, the tenancy under the lease having expired, and then the tenant having attempted to raise questions on that statute of George the Third which has excited a good deal of discussion as to whether the title was not divested, it was held that he had acknowledged the title in the old trustees, and the old trustees having conveyed to the new trustees he was estopped as to them. Parke, B., puts this during the argument; and in the judgment he says: "The Plaintiff had paid rent to the old trustees more than once, and this was no doubt evidence of a new taking under them as tenant from year to year." So in this case, the Defendant's father having paid the rent for parish land is evidence of a new taking. continues "Such taking precluded the Plaintiff from contesting the title of the old trustees, and consequently that of the new trustees, who claimed under them by an assignment of deed, and had a good title by estoppel, supposing that the estate had passed to the corporation of the churchwardens and overseers."

It is rather difficult to say in this case that the parish is the landlord. They have no legal estate; and in a Court of law there might be some difficulty in establishing a legal tenancy. The case is therefore properly brought here by the AttorneyGeneral. At the same time I cannot allow the Defendant to escape from his liability because there is no legal hand to which the rent is now payable. I cannot permit him to dispute the title of the parish to the land which is held by him at this rent. But the Defendant says, allowing that I might be estopped by means of these receipts if I could not otherwise explain them, yet it is open to me to explain them, and I [748] have given an explanation. I have shewn that, though I have paid this money for rent of parish land, I never imagined that I was holding parish land, but I supposed that the parish land was situated in other places, and it is only by my contract with other landowners that this rent is payable by me. I have come to the conclusion, that it is not open to him to say that. If he could prove that he had told the parish "I am paying you and taking a receipt from you as for rent of parish land now belonging to you, but you have been aware all the while that I was only paying that sum in consequence of a contract of indemnity between me and other parties, that might raise a question as to whether the relation of landlord and tenant existed. But all these transactions were behind the back of the parish. And then another principle is introduced, namely, that persons who make admissions on which others

are induced to act, cannot retract them after the other persons have been thereby led to do acts which change their position. Independently of the estoppel which is constituted by the relation of landlord and tenant, there is this other proposition, which, for conciseness, I read from Taylor on "Evidence" 2d edit., vol. 1, p. 670: "Every admission which has been made with the intention of being acted upon, and which has been acted upon by another person, is conclusive against the party making it in all cases between him and the individual whose conduct he has thus influenced. It is of no importance whether such admission be made in express language to the person who acts upon it, or be implied from the general conduct of the party making it; for in the latter case the implied declaration will be considered as having been addressed to every one in particular who may have had occasion to act upon it; and the rule of law is clear, that where one by his words or conduct wilfully causes another to believe in the existence of a certain state of [749] things, and induces him to act on that belief so as to alter his own previous position, the former is concluded from averring against the latter a different state of things existing at the same time." On the word wilfully the author then gives an extract from the judgment of Parke, B., in Freeman v. Cook (2 Exch. 663); in which, referring to this doctrine, he says: "By the term 'wilfully' in that rule we must understand, if not that the party represents that to be true which he knows to be untrue, at least that he means his representation to be acted upon, and that it is acted upon accordingly; and if, whatever a man's real intention may be, he so conducts himself that a reasonable man would take the representation to be true, and believe that it was meant that he should act upon it, and did act upon it as true, the party making the representation would be equally precluded from contesting its truth." The result is that, if anyone makes a representation to another on which he would reasonably act, the party making the representation is bound thereby and cannot recede from it. Here the representation is very strong, namely, that the Defendant is tenant of the charity land; can he possibly withdraw from that, when, by continuing to make that representation for a series of years, the parish have been induced to put themselves into a very different position? If the Defendant now says, "I did all this in a different capacity, of which I did not inform you," a question on the Statute of Limitations might well arise in favour of the persons who were the real owners of the charity land, and on whose behalf these payments have been made, and the parish who have not been informed of anything except that the payments were made in respect of a tenancy from them. There might, it is true, be a reductio ad absurdum, if, the parish claiming six and a half acres, it appeared that the De-[750]-fendant had not so much land. One answer, however, would be that notice of that fact must then be brought home to the parish; and if they had that notice, which would shew them that the payments could not have been made in the character represented, and if they had dealt with that knowledge, it would be a question whether they could assume to treat the payments as anything except payments on behalf of other persons, and not in respect of the Defendant's land. But there is no evidence of this kind whatever; on the contrary, there was every reason to suppose that these payments were made, as it is quite probable they were, in respect of parish land held by the Defendant.

That disposes of all the defences except two, which I was scarcely capable of following. I mean those of purchase without notice, and the Statute of Limitations. A party who purchases, however unfortunate, if under mistake, is nevertheless bound. I must say I never saw a case in which there was less reason for complaint on that ground than the present, because the vendor must have had in his possession at the time of the sale a series of receipts taken for these payments of £6 a year, and the first question of the purchaser would be, "Let me see the last receipt of the rentcharge ;" and if he had seen any one of those receipts he would have discovered that it was not a rent-charge, but a rent of parish land; therefore, there is no question of purchase without notice. The question could hardly arise, as the claim to this land is of the legal estate. With respect to the Statute of Limitations, that is out of the question; because, according to my view, there has been a recognition of the title within a few years.

Declare, that the several parcels of land mentioned in the memorandum of agree

ment of the 1st of September 1634, signed by the [751] Earl of Portland in the pleadings mentioned, and therein stated to contain by estimation six and a half acres, and to be lying within the new park and several grounds of the earl at Roehampton, are subject to a charitable trust for the benefit of the church and the poor of the parish of Putney; and declare that the lands comprised in the said memorandum of agreement are the same as those in respect of which the Defendant and his father paid the rent of £6 a year for rent of parish land.

Let the commission issue to inquire which are the parcels of land now in the possession of the Defendant and lying intermixed with his lands at Roehampton, in the pleadings mentioned, which are subject to the said trusts as being the parcels mentioned in the said agreement, and let the Commissioners set out the same by metes and bounds accordingly. And if by reason of the confusion of boundaries or other circumstances, the Commissioners shall not be able to distinguish within the lands held by the Defendant the particular parcels of land subject to the said trust, or any one or more of them, then they are to set out such quantity of the lands now in the possession of the Defendant at Roehampton aforesaid as may be of equal value with the charity lands, or so much thereof as cannot be distinguished or ascertained as aforesaid.

Usual directions. Adjourn further consideration. No costs to be paid by the Defendant up to the hearing. Liberty to apply.

[751] ROBERTS v. KERSLAKE. July 12, 13, 17, 1855.

[S. C. 3 W. R. 616.]

Practice. Suit to establish a Will. Issue devisavit vel non. Insanity. Costs of Heir. Heir at law, Defendant in a suit to establish a will, disputing the will on the ground of insanity, does not as of course lose his costs of the trial of an issue devisavit vel non, although he has gone into evidence to prove insanity, and failed; but the question of costs is in the discretion of the Court: obiter.

Circumstances under which the heir in such a case will lose his right to costs, both at law and in equity.

Henry Roberts, by his will, dated and executed on Sunday the 4th of December 1853, devised and bequeathed all his property, both real and personal, to his wife, the Plaintiff, her heirs, executors, administrators and assigns, and appointed her his sole executrix.

[752] The testator died in February 1854, entitled to considerable real and personal estate. He left the Defendant, Mary Ann, wife of the Defendant, Kerslake, his only sister and sole heiress at law.

The Defendants having disputed the will, the Plaintiff filed her bill to have it established, praying for an issue or an action in the usual form.

The Defendants by their answer insisted that the will was invalid, on the ground that the testator was, as they averred, of unsound mind at the time of its execution. On the 10th of June 1854, upon motion for a decree, the Court decreed an issue devisavit vel non, to be tried at the next Warwick Assizes, with the usual directions as to a special jury and tales.

The issue was tried accordingly, and resulted in a verdict in favour of the will. The material facts in evidence upon the trial are mentioned in His Honour's judgment.

The Defendants moved for a new trial, which was ordered by the Vice-Chancellor ; but upon appeal to the Lords Justices, His Honour's order was discharged.

The cause now came on for further directions upon the equity reserved. Mr. James, Q.C., and Mr. Bagshawe, Q.C., for the Plaintiff. A verdict having been found in favour of the will, the [753] order establishing the will is of course. The only question is as to costs. The Plaintiff does not ask that the heir should pay

costs; all she contends for is this, that the Defendants, having by their answer set up insanity, and occasioned great additional expense at the trial by their unsuccessful attempts to set aside the will on the ground of insanity, are not entitled to costs.

The rules on the subject of costs in cases of this description were laid down by Lord Hardwicke in Berney v. Eyre (3 Atk. 387, A.D. 1746). They are these: That if a devisee brings a bill merely in perpetuam rei memoriam, and the heir at law does nothing more than cross-examine the witnesses who are produced to confirm the will, he is entitled to his costs. If he examines witnesses to encounter the will, then he shall not have his costs. This is where the bill does not pray relief, or is not brought to a hearing. But when the cause is brought to a hearing, if the heir at law has an issue directed to try the will, and the will is established, as he has a right to be satisfied how he is disinherited, he shall have his costs. If he sets up insanity or any other disability against the person who made the will, and fails, he shall not have his costs.

These rules have been acted upon ever since the date of Lord Hardwicke's decision. And in the recent case of Grove v. Young (5 De G. & S.), Sir James Parker, V.-C., not only refused the heir the costs of the suit, including the costs of the action-for it was an action that was directed in that case and not an issue-but made him pay the costs of the issue as to fraud and improper practices, and of his going into evidence in support of them.

Mr. Rolt, Q.C., and Mr. Cairns, for the Defendants. [754] This suit was instituted, not by the heir, but by the devisee seeking to have the will established; and where that is the case, the question whether the heir is or is not to have his costs, does not, as the Plaintiff contends, depend simply upon whether the heir does or does not set up insanity as a defence; but it depends upon this, whether insanity has been set up properly and with reasonable ground, and whether the conduct of the heir at the trial has or has not been vexatious. This question is one which in all such cases is in the discretion of the Court, and where the defence of insanity has not been unreasonably or improperly made-where the conduct of the heir at the trial has not been vexatious, the Court gives him his costs at law as well as in equity.

The authorities from the earliest times support this view. Thus in Crew v. Joliff (Prec. in Ch. 93, A.D. 1699) the Defendants, co-heiresses, were allowed their costs both at law and in equity.

[THE VICE-CHANCELLOR. The Defendants there did not set up insanity. I have always understood the rule to be that, upon a suit by a devisee to establish a will, and a decree establishing the will, the heir has his costs at law unless he sets up insanity or fraud. If he sets up insanity and fails, he loses his costs at law; if fraud, he pays them.]

That rule would deprive the heir not only of the extra costs occasioned by that particular portion of his defence, but of the costs which he would have had as of

course.

In the next case, however, taking the cases in the order in which they were determined, Lord Hardwicke's authority is express both as to insanity and fraud. In Webb v. Claverden (2 Atk. 424, A.D. 1742), after saying that where an heir at law [755] will bring a bill to set aside a will for insanity in the testator, when he might have proceeded at law by ejectment, it is such a vexation that, if he fails in setting it aside, he shall pay costs so far as relates to the controverting of the will, Lord Hardwicke adds, "But where an heir is brought before the Court as a Defendant, even though he should insist upon the will's being fraudulent or the testator's being insane, and an issue at law is directed to try the fraud or insanity, yet this Court will not give costs against him though he fails in the attempt of overturning the will, but very often allows the heir his costs. The distinction there taken between the position of the heir as the party assailant, and his position as the party assailed, is all important; and the case is a clear authority that Lord Hardwicke considered the rule to be that where the heir is the party assailed the question of his costs is in the discretion of the Court.

It is impossible to reconcile with this decision the report of Berney v. Eyre (3 Atk. 387, A.D. 1746), determined by the same Judge only four years afterwards. That case on which the Plaintiff's contention is founded, might be an authority in her favour, if it were correctly reported, but it is not. What Lord Hardwicke must have