and for the reference to arbitration of the differences between the parties. Held, that the arbitration clause referred to questions arising under the lease alone, and that, as the claim was in respect of matters under the agreement as well as under the lease, it would not be right to refer the whole matter or the questions arising under the lease only to arbitration.

By lease, dated the 21st June 1870, Sartoris demised to Jenkins for sixty years two pieces of land at Llanelly with a factory thereon, for the manufacture of tin plates, and the lessee covenanted that he would, before the 25th March 1871, construct upon the land demised a reservoir of at least two acres in extent and at least six feet deep, and Sartoris covenanted that he would within a month after its completion lay down all apparatus necessary for supplying the reservoir with water, and would cause to be delivered into such reservoir such a quantity of water as would enable the lessee by means thereof and with the aid of the water for the time being in the reservoir to furnish the manufactory and works with the necessary supply of water for the purposes of the business, such supply not to exceed 110,000 gallons a day. The lease also contained a clause for arbitration which was as follows:

If any dispute, question, difference, or controversy shall arise between the said parties to these presents, their respective heirs, executors, administrators, or assigns, touching these presents or any clause, matter, or thing herein contained, or the construction hereof, or any matter in any way connected with these presents or the operation thereof, or the rights, duties, or liabilities of either party in connection with the premises, then and in every or any such case, the matter in difference shall be referred to two arbitrators, or their umpire, pursuant to and so as with regard to the mode and consequence of the reference, and in all other respects to conform to the provisions in that behalf contained in the Common Law Procedure Act 1854, or any then subsisting statutory modification thereof.

Jenkins made the reservoir in pursuance of this covenant in the lease. His interest in the lease was subsequently assigned to the plaintiff in this action.

The plaintiff complained that the water supply to the reservoir constructed as above mentioned, which came from two reservoirs belonging to Sartoris, called the upper reservoir and the second reservoir, was deficient, and on the 15th June 1885, in an action commenced against Sartoris he obtained a judgment directing an inquiry as to damages.

On the 7th Nov. 1885 the plaintiff and Sartoris entered into a written agreement by which it was agreed, (1) that Sartoris would forthwith make all necessary exertions to obtain the requisite easements for laying a new line of six-inch pipes by a less circuitous route than the present, and by the nearest available route from the upper reservoir to the works; (2) that Sartoris would within three months lay or allow the plaintiff to lay along the route so obtained, or failing that then along the present route, a line of iron sixinch supply pipes from the upper reservoir, and having a connection with the second reservoir direct to the lower reservoir or the works or other convenient point at which the plaintiff might connect any service pipes for the distribution of the water; (3) the expenses of this work to be borne by the parties equally, but the easements to be obtained at the expense of

[CT. OF APP.

Sartoris; (4) the new line of pipes to be kept in repair by the plaintiff, the pumping stations and machinery, reservoirs, and a certain line of pipes to the upper reservoir by Sartoris.

In April 1888 the plaintiff commenced an action against Sartoris, which upon the death of Sartoris in Nov. 1888 was revived against his executors and trustees. The plaintiff by his statement of claim alleged (par. 8) that neither Sartoris nor the defendants had made any attempt to obtain, and they had not obtained, the requisite easements for laying the new line of six-inch pipes as provided by the agreement of the 7th Nov. 1885, though such easement could have been obtained; and that Sartoris had elected himself to carry out the works mentioned in the second clause of the said agreement, but had failed to do so; that he had also failed to furnish the plaintiff's reservoir so as to enable the plaintiff to furnish, and he neglected himself to furnish, the works with a necessary supply of water for the purposes of the business. He also alleged (par. 10) that by reason of the insufficiency of the supply of water the plaintiff had suffered damage, and he claimed an inquiry as to the damages sustained by the plaintiff "by reason of the matters aforesaid."

On the 26th Nov. 1889 the defendants took out a summons that all further proceedings in the action should be stayed, and that the differences between the parties should be referred to arbitration pursuant to the Common Law Procedure Act 1854, s. 11.

The application came before North, J. in chambers, and was refused by him.

The defendants appealed.

Crackanthorpe, Q.C. and Sidney Woolf for the appellants.-The arbitration clause applies to all the questions in dispute in this action. and the proceedings should therefore be stayed. There is no separate relief sought for under the agreement of Nov. 1885. A reference here would be far the best mode of trial. The arbitrators can decide what questions are within the reference:

Willesford v. Watson, 28 L. T. Rep. N. S. 428;
L. Rep. 8 Ch. 473;

Wade-Gery v. Morrison, 37 L. T. Rep. N. S. 270. Cozens-Hardy, Q.C. and H. Terrell, for the respondent, were not called upon.

COTTON, L.J.-This is an appeal against the refusal of North, J. to stop the action and send the matters in dispute to arbitration, and it seems to me to involve two questions: first, whether the whole of the matters in dispute come within the clause of arbitration, and then, if that is so, whether there has been a proper exercise of the discretion of the court in saying that the matters ought not to be referred. The plaintiff claims under a lease granted in the year 1870, which contained a covenant by the lessor, whom the defendants represent, to supply a certain quantity of water to the demised premises. Disputes arose about the supply of water, and in the year 1885 there was an agreement entered into which in my opinion cannot be read as part of the agreement contained in the lease, but was a subsequent agreement between the parties imposing upon the lessor certain fresh liabilities, and to some extent modifying the rights of the plaintiff. Before the agreement the plaintiff had brought an action under the lease only; but, in my opinion,

CT. OF APP.]

he brings his present action for alleged breaches, both of the lease and of the subsequent agreement. It was argued by Mr. Crackanthorpe that the action was brought only in respect of the matters referred to in paragraph 10 of the statement of claim, and that the plaintiff thereby confines himself to a breach of the covenant in the lease as a ground of action. In my opinion that is wrong. Paragraph 8 distinctly refers to breaches of the contract contained in the agreement; and although paragraph 10 might be held to refer to breaches of the covenant in the lease only, the plaintiff expressly claims damages sustained by reason of the matters aforesaid," so that he cannot be precluded from claiming damages in respect of all matters previously referred to in the statement of claim, whether mentioned in paragraph 8 or paragraph 10. Now, what is the defendants' case? They say that there is a clause in the lease which applies to the disputes referred to in paragraph 10 of the statement of claim. [His Lordship read the arbitration clause in the lease, and continued:] That to my mind simply refers to questions arising under the lease alone, and does not extend to all questions arising as to property included in the lease; and I therefore hold that the clause of reference to arbitration does not include all the matters that may arise under the subsequent agreement. The case of Wade Gery v. Morrison (ubi sup.) was referred to in support of the contrary view; but that case was entirely different from the present. In that case there were two contemporaneous agreements, one of which contained, and the other did not contain, a stipulation for reference to arbitration, and the learned judge decided that those two agreements must be treated as together forming one agreement, and that therefore the clause as to reference to arbitration, which was found only in one of the two parts of that agreement, was to apply to matters arising under either of the documents which taken together made up the agreement. That is entirely different from the present case. Then it was contended that, at all events, the question arising under the lease was the principal matter in dispute, and that it ought to be referred, leaving the action to proceed only as to matters not arising under the lease. I think that such a course would not be right. It cannot be right to cut up this litigation into two actions, one to be tried before the arbitrator and the other to be tried elsewhere. Even if the arbitration clause should be construed so as to include all matters in respect of which damages are claimed by the plaintiff, yet I should not think it right to refer the case to arbitration. I think it would not be reasonable to refer the case to an arbitrator who could only deal with the questions arising under the lease, and would not be competent to deal with other questions which might arise under a reference referring to him all matters which are in difference between the parties. Whether or not it will be reasonable, when the plaintiff knows what the defence put in by the defendants is, to refer the whole matter is another question.

BOWEN, L.J.-I am of the same opinion, and I can add little to what Cotton, L.J. has said. The only word I will add is to emphatically recommend that, as soon as the defence has been put in, the parties should consent to the cause being tried by

[CT. OF APP.

an official referee. I think the case is one which it is the duty of the solicitors on both sides to refer; otherwise there will be a double expense and double litigation.

FRY, L.J.-I am of the same opinion. It appears to me to be reasonably plain that the

arbitration clause does not cover all the matters in dispute in the action. After what has been said, especially by Bowen, LJ., I cannot help adding a word or two on the subject. I view with very considerable regret the number of cases in which the court is called upon to try the matter twice over, namely, to try the question whether there ought to be an inquiry as to damages, and then to try the matter again upon an inquiry as to what the damages are. I think, so far as it is possible, that these double inquiries ought to be avoided.

Solicitor for the appellants, Oliver Green.

Solicitors for the respondent, Bridges, Sawtell, Heywood, Ram, and Dibdin, agents for Rees and Edwards, Llanelly.

Jan. 15, 16, and 30.

(Before COTTON, LINDLEY, and LOPES, L.JJ.) SEARLE v. COOKE, (a)

APPEAL FROM THE CHANCERY DIVISION.

Rentcharge-Arrears-Action for recovery-Inquiry as to lands charged-Lands formerly copyhold-Copyhold Enfranchisement Act 1852 (15 & 16 Vict. c. 51), 88. 8, 11, 24-Copyhold Act 1858 (21 & 22 Vict. c. 94), 88. 6, 8, 10.

The

Three rentcharges were created in favour of the lord of certain copyhold lands in 1880 by three awards of enfranchisement made by the Copyhold Commissioners under the Copyhold Acts, at the instance of the lord of the manor, and were charged upon the lands enfranchised. awards did not distinctly set out the lands upon which the rents were charged. The plaintiff, to whom the rentcharges had been conveyed, sought to recover arrears of the rentcharges, and to have the lands charged therewith ascertained, or, if that was not possible, to have land of the defendants of equal value set out to secure them. The defendant, C., was tenant of the copyhoid lands before the enfranchisements, and admitted he was still in possession of the enfranchised lands, but stated that they were intermixed with other freehold lands of his, and that the boundaries were confused before the date of the enfranchisements. Held, that there was a duty imposed upon the copyhold tenant before the enfranchisements to keep the boundaries distinct, and that the enfranchisements did not relieve him from the consequences of his neglect in the past, and that the holder of the rentcharge was therefore entitled to an inquiry, what were the lands charged with these rentcharges, so far as this was uncertain, with a direction that, if they could not be ascertained, land of the defendant, of the same extent, must be set out under the direction of the judge in chambers. Held also (following Thomas v. Sylvester, 29 L. T. Rep. N. S. 290; L. Rep. 8 Q. B. 368), that an action of debt might be maintained against the terre-tenant for arrears of the rentcharge. Decision of Kay, J. (61 L. T. Rep. N. S. 189) affirmed.

(a) Reported by A. J, SPENCER, Esq., Barrister-at-Law.

GEORGE COOKE, one of the defendants in this action, was previously to the enfranchisements next hereinafter mentioned tenant on the courtroll of three several copyhold tenements of the manor of Nedging-with- Newton, otherwise Newton Fee, in the county of Suffolk, whereof the plaintiffs, H. E. Paine, a plaintiff in this action, and Richard Brettell, were lords.

By three several awards of enfranchisement under the hands and official seal of the Copyhold Commissioners, and dated dated respectively the 19th Feb. 1880, the commissioners, in pursuance of the powers vested in them by the Copyhold Acts 1852 and 1858, enfranchised the copyhold lands held by George Cooke to be holden as freehold subject to the payment of three annual rentcharges of 31. 158. 4d., 10l. 118. 4d., and 21. 88. 9d., issuing out of the lands respectively, which rentcharges had been ascertained under the provisions of the Copyhold Acts as the consideration for such enfranchisements respectively.

By three several indentures, dated respectively the 20th March 1880, and made between H. E. Paine and R. Brettell of the one part, and the plaintiff Richard Searle of the other part, for the considerations therein mentioned, the said three annual rentcharges were conveyed by H. E. Paine and R. Brettell unto and to the use of R. Searle, his heirs and assigns, for ever.

From the date of the enfranchisements until the 19th Feb. 1887 the defendant G. Cooke duly paid to the plaintiff R. Searle the rentcharges as and when the same respectively became due; but he had not paid the rentcharges on any part thereof since that date.

By three several deeds of demise, dated respectively the 7th April 1888, and made between the plaintiff R. Searle of the one part, and the plaintiff H. E. Paine of the other part, R. Searle, in exercise of the power for that purpose given to him by the Copyhold Act 1887, severally demised the lands comprised in the said awards of enfranchisement respectively to H. E. Paine for the term of 500 years upon trust, by mortgage, sale, or demise, for all or any part of the term of the hereditaments so charged as aforesaid and thereby demised, or any part thereof, or by receipt of the income thereof, or by all or any of those means, or by any other reasonable means, to raise and pay the annual rentcharge issuing out of the hereditaments comprised in each such deed, and all arrears thereof due or to become due.

The plaintiffs, R. Searle and H. E. Payne, in consequence of the nonpayment of the rentcharges, commenced this action against G. Cooke and his mortgagees, and by their statement of claim alleged that on the respective admittances of the defendant G. Cooke he neglected to present and make known the metes and boundaries of the lands to which he was admitted tenant, and that he had neglected to keep the boundaries, and that in consequence the plaintiffs were unable to set forth in respect of what particular lands the three annual rentcharges were respectively due and payable, and that by reason thereof the plaintiffs could not with safety distrain upon or exercise their other rights and remedies over such lands for recovering payment of the said annual rentcharges respectively and the arrears thereof. The plaintiffs claimed a declaration that the plaintiff R. Searle was entitled to the three several annual rentcharges,

[CT. OF APP.

and payment of such rent charges and of all arrears thereof. They also claimed that the particular lands charged with the rentcharges and comprised in the several deeds of demise should be ascertained, and the proper metes and bounds thereof fixed and determined, and that, if by reason of confusion of boundaries or alteration of names or any other circumstances it should be impossible to distinguish or ascertain the particular lands so charged, or any of them, or any part thereof, that in that case such a quantity of land in possession of the defendant G. Cooke as might be of equal value with the enfranchised lands, or so much thereof as could not be distinguished or ascertained, might be set out for securing the rentcharges respectively.

The defendants, by their defence, admitted that the defendant G. Čooke was still seised of the hereditaments enfranchised as aforesaid, and that he was also seised of other freehold lands which lay intermixed with the lands so enfranchised without any boundaries or visible distinguishing marks. They alleged that the absence of metes and boundaries was well known and acquiesced in by the lords of the manor of which the lands were copyhold at the time of the defendant G. Cooke's respective admittances and at the time of the respective awards of enfranchisement and the creation of the three rentcharges; and, even if the defendant G. Cooke had so neglected as alleged, the defendants submitted that such neglect, committed while the lands were of copyhold tenure, could not now be relied on by the plaintiffs, and was immaterial to the relief claimed in the action. They also denied that the defendant G. Cooke had neglected to keep the boundaries of the lands.

The defendants further alleged that the defendant G. Cooke was willing, and had always been willing, that the particular lands charged with the three annual ̄ rentcharges should be ascertained, and the proper metes and boundaries thereof fixed and determined, but submitted that, as the position and state of the lands had not been altered since the several awards of enfranchisement and the creation of the three annual rentcharges, and as he had not been guilty of any neglect or fault, and as the ascertaining of such lands and the fixing and determining of such metes and boundaries were solely at the desire and for the advantage of the plaintiffs, the cost of ascertaining such lands and fixing and determining such metes and boundaries, as well as the costs of the action, must be paid by the plaintiffs.

The action was tried before Kay, J., who held that the land subject to the larger rentcharge of 10. 118. 4d. had been ascertained by the evidence before him, and made a declaration as to the land so charged. As to the two smaller rentcharges he directed an inquiry in chambers what were the lands charged with those two rentcharges respectively, with a direction that, if they could not be ascertained, land of the defendant of the same extent in each case as the land so charged must be set out under the direction of the judge in chambers, and he made an order for payment of the arrears. The judge ordered the defendant Cooke to pay the costs up to and including_the trial, but reserved all further costs: (61 L. T. Rep. N. S. 189.)

The defendants appealed.

Crackanthorpe, Q.C. and W. E. Mozley for the appellants. In order to charge the defendants with the expense of an inquiry as to boundaries it is necessary to show that they were in default in not keeping the boundaries distinct. The duty of keeping the boundaries distinct is one of the incidents of copyhold tenure from which the tenant is discharged by the enfranchisement:

Copyhold Act 1852, s. 11; Copyhold Act 1858, s. 10.

The whole foundation of this case is neglect on the part of the tenant. No neglect is shown before the enfranchisement, and the enfranchisement put an end to all the lord's rights in this respect. The confusion of boundaries took place before the creation of the rentcharges. It has been held that a lessee is not bound to keep the boundaries of his land distinct if they were not distinct when he took the lease:

Speer v. Chawter, 2 Mer. 410.

The same rule will apply to a copyhold tenant. The plaintiff is disqualified from asking for the relief he now claims because he neglected at the time of the enfranchisement to have the boundaries defined by the commissioners as he might have done under sect. 24 of the Copyhold Act 1852. A court of equity will not interfere now to assist him. The landlord cannot obtain judgment for the arrears. Thomas v. Sylvester (29 L. T. Rep. N. S. 290; L. Rep. 8 Q. B. 368) was not like this case, but was an action for arrears of a rentcharge where there was a covenant to pay. As to the rentcharge of 10l. 11s. 4d., the plaintiffs might have found out the lands subject to this by reference to their own title-deeds, and should not have the costs of the action given to them in this respect.

Robinson, Q.C. and Ingpen for the respondents. -The inquiry as to boundaries should be granted in exercise of the ordinary equitable jurisdiction to remove difficulties in the way of enforcing a legal right:

Duke of Leeds v. Earl of Strafford, 4 Ves. 180; Mayor of Basingstoke v. Lord Bolton, 1 Drew. 270. We are in the position of mortgagees, and mortgagees would be entitled to such an inquiry. The duty of the tenant to keep the boundaries distinct subsists notwithstanding the enfranchisement: (Copyhold Act 1852, s. 17.) If the boundaries cannot be ascertained there is a right to have other land given in substitution:

Lupton v. White, 15 Ves. 432. Crackanthorpe, Q.C. replied.

Cur. adv. vult.

are

COTTON, L.J.-The plaintiffs in this case purchasers from the lord of a manor of three rentcharges granted to the lord on the enfranchisement of three copyhold tenements. The metes and bounds of these lands were not ascertained at the time of the enfranchisement, but in the enfranchisement deeds they are referred to by the description under which the copyhold tenant was admitted on the court-rolls. The enfranchisement took place in 1880, and was compelled by the lord under the powers of the Copyhold Acts. Under the circumstances the particular copyhold parcels could not be ascertained, as they had been mixed up with other lands held by the same tenant. The lord, if he so wished it, might have had the parcels set out at the date

[CT. OF APP.

of the enfranchisement under the provisions of the Copyhold Act 1852, s. 24. But that was not done, as he trusted apparently to the rentcharges being paid regularly. In 1887, owing to the agricultural depression or some other cause, the owner of these properties refused to pay these rentcharges. After some negotiation and correspondence, this action was brought in 1888, seeking to have the late copyhold properties ascertained, and if they could not be ascertained, to have other properties equal in value set out, and for payment of the arrears of the rentcharges. Judgment was given by Kay, J. for an inquiry to ascertain what the tenements subject to the rent charges of 31. 158. 4d. and 21. 88. 9d. were. As to the property subject to the rentcharge of 10l. 118. 4d., the judge found himself able, upon the evidence before him at the hearing, to distinguish that property. Then he made an order that, if the property subject to the two smaller rentcharges could not be ascertained, other properties should be substituted so as to enable the plaintiff to enforce his remedy by distress, and judgment was given for the arrears. Now, although the defendant stated that he was always ready and willing that the properties should be ascertained, he fought the question on every point. What we have to consider is, in the first place, if the judgment was right in ordering that the boundaries should be ascertained, and in giving the alternative relief by way of substitution. Here we have properties which were formerly copyhold, and it is clear to me that a copyhold tenant is bound to keep the boundaries of his copyhold tenement clear. If he does not do so he is guilty of default, and not only he but every person claiming through him. Apart from the question of the result of the enfranchisement, the Court of Chancery would have directed inquiries to ascertain the boundaries, and if they could not be ascertained, it would have ordered that other properties should be substituted for the lands originally charged. That is clear from the case of the Duke of Leeds v. Earl of Strafford (ubi sup.). But in this case there is the fact that in 1880 there was an enfranchisement. The copyhold tenure then came to an end, but it was put an end to subject to these rent charges. What then is the effect of the enfranchisement ? It is argued that it put an end to this duty of keeping the boundaries distinct. No doubt it did so as to the future, but not as to the past. The words of the enfranchisement deed, following the schedule to the Copyhold Act 1852, are: "To be holden subject to the rentcharges, unto, &c., as freehold henceforth and for ever discharged by these presents from all fines, heriots, reliefs, quit-rents, and all other incidents whatsoever of copyhold or customary tenure." That, in my opinion, has the effect of releasing the owner of the land enfranchised for the future from the duty of keeping the boundaries distinct, but it does not relieve him from the consequences of his previous neglect of such duty. It does not put an end to any liability he may have incurred for breaches which have already taken place. There is therefore a right in the lord to have the same remedy for previous neglect of duty as he would have had against a tenant who had not preserved his boundaries. Therefore the appeal as to that part of the judg ment fails. Mr. Crackanthorpe said the lord had

the right at the time of the enfranchisement, by the Copyhold Act 1852, s. 24, to have the boundaries ascertained, and if he did not avail himself of that right at the time he cannot now ask for relief by this action. But, in my opinion, the provision of the Act does not deprive him of the rights which he would have had apart from the enfranchisement, although that fact might affect the question of costs. But it is said that he has made an election to take the rentcharges upon lands that were not ascertained; but in my opinion it is not a question of election-he was not put to an election between two rights. He did not avail himself of the additional right which was given him by the Act; but that does not deprive him of the other right which he had before the Act. The question of costs does not arise here, because the judge has reserved the costs of the inquiry for ascertaining the boundaries. It is true that the judge ordered the defendant to pay the costs of the action up to the hearing, because he held that the defendant was wrong, as I think he was wrong, in not paying the rentcharges, and in saying that no inquiry should be held for the purpose of ascertaining the boundaries. Another point made by the defendants was, that the property charged with the larger rentcharge was ascertained by the judge at the trial, and if the plaintiffs had taken the trouble to inquire what their deeds contained they might have found out for themselves what the lands subject to this rentcharge were. There might have been something in this objection if the defendant had himself offered to give all the information in his power to the plaintiffs. He did not do this, but stood on his rights, and said that it lay upon the plaintiffs to find out what these properties were. The plaintiffs were therefore forced to come to the court to discover what the properties were. Then we come to this-the judgment orders payment of arrears. Was that right? It is admitted that the defendant Cooke was in possession of all these properties, together with other properties, and it is admitted that the rents of the properties were sufficient to pay all these rentcharges. It is said, however, that no action could be brought for arrears. But it was decided, and I think rightly decided, by the case of Thomas v. Silvester (ubi sup.) that such an action could be brought. In former days, where a real action could be brought, the personal action for debt would not lie; but after real actions were abolished all the judges decided in that case that a person entitled to a rentcharge could bring an action for arrears against the terre-tenant. It is true

that there was in that case a distinct covenant to pay, but it was not the defendant's covenant, nor was it a covenant running with the land. That case, therefore, in my opinion, applies here. It is said that there are remedies given by the Copyhold Acts to enable a lord to enforce his rentcharges, and therefore he cannot take the course which was authorised by Thomas v. Sylvester. The mere fact that these Acts give some additional rights does not deprive the lord of rights which he had before. In my opinion the judgment was right, and the appeal therefore fails.

LINDLEY, L.J.-In this case I only entertained a doubt as to one question, but I have come to the conclusion that Kay, J. was right on that point as well as in the rest of the case. It is settled law

[CT. OF APP.

by a long course of decisions, and is laid down clearly in Duke of Leeds v. Earl of Strafford (ubi sup.), that a copyhold tenant is bound to preserve the boundaries of the copyhold lands. I do not know what would happen if the boundaries had been confused by an earthquake, volcanic eruption, or flood. It is not necessary for us to deter mine that, as no such event has occurred here. It is obvious here that, at the date of the enfranchisement the lord had the right to bring an action for the purpose of ascertaining the boundaries of the land; and, if this could not be done, for the purpose of getting other lands substituted. Incidentally it was also settled in the case I have mentioned, that where the boundaries are confused, if any rents are in arrear, the Court of Chancery would compel payment. Mr. Crackanthorpe raised a further question which deserves attention. He said that, in consequence of certain sections in the Copyhold Acts, when the lord sought to have the property enfranchised, he elected to have his rentcharges upon property the boundaries of which had not been ascertained, and that having made such election he cannot now withdraw. It appears to me that the sections of the Act fall short of that. The main section is sect. 24 of the Act of 1852. [His Lordship read the section and continued:] There is no doubt that the lord of a manor might have applied to have these boundaries ascertained, but he did not do so. Has he lost his right by not so applying? I think it would be going too far to say he had lost it. By the enfranchisement, the relation between the lord and his tenant was severed, and if the confusion of boundaries had arisen after the enfranchisement, the case of the tenant would have been different. But it is admitted that is not the present case, and in my opinion the lord does not by the enfranchisement lose any rights he had acquired at the date of the enfranchisement. The costs of the inquiry have been reserved. I think Kay, J. was right in so reserving them. The conclusion I arrive at is, that his decision was right on all points.

LOPES, L.J.-It is settled law that a tenant is bound to keep the boundaries of his property distinct, and the lord has the right to compel him to keep them distinct. If the tenant has not fulfilled his duty, and the boundaries cannot be ascertained, there is a right to obtain the substitution of other lands. If there had been no enfranchisement here, the case would be clear. We have, however, to consider the effect of the enfranchisement. For the future the tenant is free from all obligations; but, as to the past, it does not destroy his obligations, or the rights which may have accrued to the lord. I think the obligation of the tenant with regard to these boundaries is the same as if no enfranchisement had taken place. I think therefore the decision of Kay, J. was right. As to the action of debt I need not say anything, because that is settled by Thomas v. Sylvester (ubi sup.).

Solicitors for the plaintiff, Beaumont, Son, and Rigden.

Solicitors for the defendant, Field, Roscoe, and Co., agents for Josselyn and Sons, Ipswich.