« EelmineJätka »
inconvenience from the heaping up of the snow at the sides of the streets, was entitled to an interdict to restrain the nuisance. Judgment of the Court of Session in Scotland (23 Ct. Sess. Cas. 4th series, 340) reversed.
[Ogston v. Aberdeen Tramways Company. H. of L. Dec. 14.Counsel : Asher, Q.C. (the Dean of Faculty); Haldane, Q.C. and Abel (of the Scotch Bar); Graham Murray, Q.C. (the Lord Advocate); and Dove Wilson (of the Scotch Bar). Solicitors : Grahames, Currey, and Spens, for Auld and Macdonald, Edinburgh, and C. and P.H. Chalmers, Aberdeen ; Mart in and Leslie, for Morton, Smart, and Macdonald, Edinburgh, and L. M*Kinnon, jun., and Son, Aberdeen.]
and that the viaduct was dangerous without a proper fence. Lord Russell, C.J., reserved the question of liability for further con. sideration. The Railways Clauses Act 1845 provides, by sect. 68, that “the company shall make, and at all times thereafter maintain, the following works for the accommodation of the owners and occupiers of lands adjoining the railway ;
sufficient posts, rails, or other fences for separating the land taken for the use of the railway from the adjoining lands not taken, and protecting such lands from trespass, or the cattle of the owners or occupiers thereof from straying thereout, by reason of the railway;” and by sect. 73, that “the company shall not be liable to make any further or additional accommodation works for the use of owners and occupiers of land adjoining the railway
after five years from the completion of the works and the opening of the railway for public use.” The Lord Chief Justice held that the defendants were bound to maintain the fence though not erected within five years after the railway was opened, and gave judgment for the plaintiff. The defendants appealed. Held (affirming the decision of Lord Russell, C.J.), that the defendants were bound to maintain the fence, and were liable for the damage caused by reason of the fence being rotten.
[Dixon v. Great Western Railway Company. Ct. of App. : Lord Esher, M.R., Lopes and Rigby, L.JJ. Dec. 9.-Counsel : for the appellants, Bucknill, Q.C. and A. Lyttelton ; for the respondent, Montague Lush and W. Seton. Solicitors : for the appellants, Nelson : for the
respondent, Graham Gordon.] Trustee-Purchase of Estates as-Subsequent Breaches of Trust-Bank
ruptcy of Defendant-Laches and Delay of Plaintiffs—Statute of Frauds (29 Car. 2, c. 3), s. 7--Statute of Limitations. In 1894 an action was brought by A. and her daughter in respect of certain moneys realised by sales and mortgages of estates in Ceylon. A. became entitled to the estates in 1861 subject to annuities and a mortgage for £25,000. That mortgage was in 1864 transferred to a Dutch company, which was subsequently wound-up. The liquidators of the company put the estates up to auction in 1873, aud they were purchased by the defendant. Although in form the conveyance was to him absolutely, A. alleged that he bought the property for her benefit under an agreement before the sale. The defendant was made bankrupt in 1879. He obtained his discharge in May 1880. The plaintiffs alleged that the defendant had committed breaches of trust between 1876 and 1879 in having, unknown to them, mortgaged or sold the estates or parts of them without having accounted for the mortgage money or proceeds, and also, in 1880, having conveyed to another person so much of the estates as remained unsold. A declaration was accordingly claimed by the plaintiffs that the defendant purchased the estates as trustee for the plaintiffs or one of them, and an account was asked for of the defendant's dealings with the trust property, and payment by him of the balance which might be found due. The plaintiff's accounted for the delay in bringing the action by representing that until 1892 they had no means to prosecute their claims. The defence was: (1) The estates were conveyed to the defendant, not as a trustee for the plaintiffs, but as beneficial owner: (2) the trusts alleged by the plaintiffs could not be proved by any writing signed by the defendant within sect. 7 of the Statute of Frauds; (3) the plaintiffs' claim, even if proved, was barred (a) by the defendant's bankruptcy, (b) by the Statute of Limitations, (c) by the plaintiffs' laches and delay, indepen. dently of the statute. Kekewich, J. decided against the plaintiffs on the first ground, which view rendered it unnecessary for him to consider the other defences. The plaintiffs appealed. Held, (1) that the evidence was inconsistent with the defendant's contention, but showed conclu. sively that the estates were conveyed to him upon trust for the plaintiffs, subject, nevertheless, to a charge in his favour in respect of all sums advanced by him. (2) That, having regard to Leroux v. Brown (11 C. B. 801), and to the language of sect. 7, the defendant could rely on the statute although the present case related to lands abroad; but that, even if the documents signed by the defendant did not contain enough to satisfy the Statute of Frauds, as to which the court was not convinced, yet other evidence was admissible in order to prevent the statute from being used for the purpose of committing a fraud; and that such other evidence proved the plaintiffs' case completely. Bartlett v. Pickersgill (1 Eden, 515) not followed. (3) That the other defences likewise failed. Held, therefore, that the plaintiffs were entitled to the declaration claimed by them. Decision of Kekewich, J. reversed.
[De la Rochefoucauld v. Boustead. Ct. of App. No. 2: Lord Halsbury, L.C., Lindley and Smith, LJJ. Oct. 27, 29, 30, Nov. 2, and Dec. 12.--Counsel : for the appellants, Haldane, Q.C. and T. L. Gilmour ; for the respondent, Renshaw, Q.C. and George Lavrence. Solicitors : for the appellants, G. C. H. Lea ; for the respondent, Hollams, Sons, Coward, and Hawkesley.]
COURT OF APPEAL. Husband and Wife-Dirorce Action-Notice by Petitioner's Solicitor of
having set doun Cause as ready for Trial—Informal Notice-New Trial on Ground of Surprise---Costs payable by Respondent's Solicitor personally --- Divorce and Matrimonial Causes Rules 1865,
7. 44. An application was made by the respondent (the wife), in an action for dissolution of marriage on the ground of her adultery, to set aside the verdict of the jury at the trial of the action on the 30th July 1896, and the consequent decree of Barnes, J. for a dissolution of the marriage between the petitioner and the respondent. The wife also asked for a new trial of the action on the ground of surprise. Neither the wife nor the co-respondent had appeared at the trial, and the action was treated as undefended. The wife did not, in fact, know that she was divorced until the evening of the day of the trial, when she was informed of it by some friends. She at once consulted her solicitor, and notice of the present application was given to the husband on the 7th Aug. The solicitor had been previously instructed by the wife to represent her in the proceedings, and he had also been instructed by the co-respondent. On the 7th July the husband's solicitor had written to the wife's solicitor thus: “Fluister v. Fluister.-I have set this cause down for trial.” There was a dispute as to whether a more formal notice of trial was or was not inclosed in this letter. The wife's solicitor denied that such notice was inclosed, and, acting on the supposition that he was entitled to a more formal notice, he took no steps to watch the cause list, and the cause came on for hearing without his knowledge. Rule 44 of the Divorce and Matrimonial Causes Rules 1865 provides that: “In cases to be tried by a jury, the petitioner, after the expiration of eight days from the delivery of copies of the questions for the jury to the opposite parties, or from alteration or amendment of the same, in pursuance of the order of the Judge Ordinary, shall file such questions as finally settled in the registry, and at the same time set down the cause as ready for trial, and on the same day give notice of his having done so to each party for whom an appearance has been entered.” Held, that the letter of the 7th July was a sufficient notice of setting down the cause as ready for trial within the meaning of rule 44; but that, on the wife's solicitor undertaking to pay personally the costs thrown away (including the costs of the present application), a new trial would be ordered.
[Fluister y. Fluister and Hutton. Ct. of App. No. 2: Lord Russell, C.J., Lindley and Smith, L.JJ. Dec. 14.-Counsel: for the appellant, Clavell Salter; for the respondent, R. J. Willis. Solicitors : for the
appellant, Alfred Slater; for the respondent, C. W. Inman.] Mayor's Court--Prohibition-Cause of Action-Formation of Company.
Appeal from an order of Bruce, J. at chambers granting a writ of prohibition to the Mayor's Court. The action was brought by bill of complaint on the Equity side of the Mayor's Court for the specific performance of a contract under seal dated the 23rd Oct. 1895, or in the alternative for damages. By this contract, in consideration of certain services to be performed by the plaintiff, the defendants agreed to transfer to him fully paid shares of the nominal value of £6000 in a company to be formed to acquire certain mining claims situate in the South African Republic. In his bill of complaint the plaintiff alleged that a company called the Sheba Alliance Limited had been formed to acquire the claims. Under these circumstances Bruce, J. granted a writ of prohibition. The plaintiff appealed. Cooke v. Gill (28 L. T. Rep. 32; L. Rep. 8 C. P. 107); The Keynsham Blue Lias Lime Company v. Baker (9 L. T. Rep. 418; 2 H & C. 729); and The Mayor, &c. of London v. The Joint Stock Bank (45 L. T. Rep. 81; 6 App. Cas. 393) were referred to. Held, that the writ was rightly granted. Since the fact of the formation of the company could not be proved to have taken place within the jurisdiction of the Mayor's Court, the whole cause of action did not arise within the jurisdiction. Appeal dismissed.
[Bowler v. The Barberton Development Syndicate Limited. Ct. of App.: Lord Esher, M.R., Lopes and Rigby, L.JJ. Oct. 27 and Dec. 9. -Counsel : for the plaintiff, Scarlett ; for the defendants, Herbert Reed, Q.C. and Arthur May. Solicitors : for the plaintiff, Roberts and
Wrightson ; for the defendants, Stevens and Co.] Railway-Fence-Fence constructed more than Five Years after Railway
opened-Obligation to maintain--Railways Clauses Act 1845 (8 & 9 Vict. c. 20), 48. 68, 73.-The Great Western Railway Company were the proprietors of a railway between Twyford and Henley, which was opened for public use in 1857. Part of this railway was carried over certain meadow land by a viaduct, about five feet high, upon wooden piers. The railway company did not erect any fence between the viaduct and the meadow antil 1886. In that year the railway company erected a new post-and-rail fence to separate their land and viaduct from the adjoining land.
The plaintiff was the occupier of the adjoining land and had thereon a colt, which broke through the fence which was rotten, and injured itself against the viaduct. The plaintiff brought this action to recover damages for the injury to his colt, and the jury found that the fence was rotten, that the colt was injured in consequence thereof,
HIGH COURT OF JUSTICE.-CHANCERY DIVISION. Cheque -- Legal Tender – Solicitor — Agent.-- Motion to restrain the
defendants from selling the property comprised in an indenture of mortgage made between the plaintiffs of the one part and the defendants of the other part. The plaintiff's' solicitor had attended by appointment at the office of the mortgagees' solicitor for the purpose of paying in cash the principal and interest and costs due upon the mortgage. There was a further sum due from the mortgagors in respect of incidental expenses, and for this further sum the mortgagees' solicitor agreed to take the cheque of the mortgagors' solicitor on the understanding that the payment should be made without protest. The mortgagors' solicitor drew the cheque and tendered the cash and cheque under protest in payment of the whole amount claimed by the mortgagees to be due upon the security. The mortgagees' solicitor
then refused to accept the tender, because it was under protest. Held, that the solicitor not having authority to accept a cheque the tender was bad.
[Blumberg v. The Life Interest and Reversionary Securities Company. Ch. Div.: Kekewich, J: Dec. 16.--Counsel : Warrington, Q.C. and Frank Erans ; Renshaw, Q.C., and Ribton; Edward Ford. Solicitors :
Braham Barnett; H. Stanley-Jones ; Surman and Quekett.] Fishery-Licensees of Fishery-Right to sue--Injury to Spawning Beds
—Damages.—This action was brought by the trustees of the True Waltonian Society on behalf of the society and its members for an injunction to restrain the defendant, a railway contractor, from polluting the rivers Chess and Colne with London clay gravel washings and other suspended matter so as to injure the plaintiffs' fishery, and for damages. The True Waltonian Society wore grantees of a right of fishery in certain parts of the rivers Chess and Colne under leases from Lord Ebury and Mr. Shackell, and, as it appeared, expended about £230 per annum in stocking and preserving the fishery. The evidence showed that gravel and other matter had got into the rivers from the defendant's works, but the nuisance had now ceased. It was contended on behalf of the defendant (inter alia), that the right of action was in the freeholders only, and that the plaintiffs, being licensees merely of a right to take fish, could not sue. Held, that, although the plaintiffs were licensees or grantees only, there was no reason why they could not sue for an interference with the rights which had been granted to them. It was proved in evidence that the trout were made sick and the spawning beds spoilt by the washings from the defendant's works. His Lordship estimated the damage done to the spawning beds at £150, and gave judgment for that amount for the plaintiffs with costs.
[Fitzgerald v. Firbank. Ch. Div.: Kekewich, J. Dec. 9.-Counsel : Tarrington, Q.C., Ashton Cross, and Duka; Bramwell Davis, Q.C. and
Kenyon Parker. Solicitors : Bircham and Co.; A. Price.] Local Government-Local Authority-Removal of Obstruction to High
ways-Member of Board -- Interest of Member in Subject matter of Proceedings-Statement of Claim-Striking out Paragraphs as irrelerant-Public Health Act 1875 (38 f. 39 Vict. c. 55), schedule 2, r. 64Local Government Act 1894 (56 & 57 Vict. c. 73), s. 56—R.S.C. 1883, Order XIX., r. 27.-In an action for an injunction to restrain the defendants from interfering with certain posts erected by the plaintiffs on their moiety of a path or walk, not being an obstruction to the public footway, the plaintiffs by certain paragraphs in their statement ef claim alleged (inler alia) that L. was a very active and influential member of the defendant board ; that throughout certain negotiations between the plaintiffs and defendant with regard to the user of the walk by the public for vehicular traffic, and in all the board had done in reference thereto, L. had taken an active part, and had endeavoured to influence and prevent the board from doing any act which would hinder the walk from being used by vehicles ; that in so doing he had acted with a view to his own private interest and advantage, and not with a view to the proper discharge by the board of their public duties; and that in consequence of Li's influence in the board the plaintiffs had not succeeded in influencing the board to take any steps for the protection of the walk. The plaintiffs owned land on one side of the walk and L. owned land on the opposite side. The plaintiffs had brought an action against L., and had obtained an injunction restraining him from using the plaintiffs moiety of the walk for vehicular traffic ; thereupon L. had cut a new road through his property, which resulted in the walk being thrown open for vehicular traffic by the public. In a second action by the plaintiffs against L. another injunction was obtained restraining him from interfering with posts erected by the plaintiffs on their moiety of the walk, not being an obstruction to the footpath. The path had always been used as a public footpath. Incidentally in the present application the question as to whether the proceedings of a public body were vitiated by reason of one of its members having a personal interest in the subject-matter of the proceedings was raised. Held, that schedule 2, rule 64, of the Public Health Act 1875 (38 & 39 Vict. c. 65) and sect. 46 of the Local Government Act 1894 (56 & 57 Vict. c. 73) did not extend to the simple case of a member having a personal interest in a matter which came before the board, and even if it did, the effect of the rule was not to vitiate the acts of the board : that, in the present case, the board were not acting judicially, and that the allegations complained of were irrelevant to the issue in the action, and that, consequently, they should be struck out of the statement of claim.
[Murray v. The Epsom Local Board. Ch. Div.: Stirling, J. Nov. 24 and Dec. 10.—Counsel : Graham Hastings, Q.C., and S. Dickinson ; Buckley, Q.C., and W. C. Dare. Solicitors : Murray, Hutchins, Stirling,
and Co.; Letts Brothers, agents for George White, Epsom.] Marriage Settlement-Settlement-Funds settled on Death of Husband or
Wife (in default of joint Appointment, which happened) as Survivor should appoint among the Children of the Marriage--Successive Appointments-Assignments and Incumbrances of appointed SharesInterest-Costs.-By a marriage settlement certain funds were settled upon trust to invest and pay the annual produce during the joint lives of husband and wife as therein mentioned, and after the death of one of them to the survivor for life, and after the death of the survivor to distribute among the children of the marriage as the husband and wife should jointly appoint, and in default thereof as the survivor should by deed or will appoint. The husband died without exercising the joint power of appointment, and the wife made several successive appointments in favour of certain her children, and appointed the residue in favour of another child. The wife having died, and an action having been brought for the administration of the trusts of the settlement, and it appearing that the appointees had assigned (in some cases to two or
three persons) and incumbered their shares. Held, (1) that interest was payable in respect of the several appointments at the rate of £4 per cent. per annum as from the death of the tenant for life : (Re Goodenough; Marland v. Williams, 73 L. T. Rep. 152, not followed); (2) that the costs must be borne rateably by the appointed shares, one set of costs to be allowed to each child in respect of the several appointments to him, the several assignees of such appointments to stand on the same footing, and to divide the costs allowed in respect of such child's share rateably between them (Re Orford ; Cartwright v. Del Balzo, 73 L. T. Rep. 681, applied).
[Re Hill's Settlement Trusts; Hill v. Equitable Reversionary Interest Society Limited. Ch. Div.: Stirling, J. Dec. 10.–Counsel : Hastings, Q.C. and T. T. Methold; B. B. Rogers ; Ingpen ; T. Douglas ; Church ; Wright Taylor; Seddon ; S. Dickinson ; Curtis Price. Solicitors: Woodroffe and Burgess; Clayton Sons, and Fargus ; P. Collings and Co.; J. C. Wheeler; Prior, Church, and Adams; W. S.
Fiske; Ley and Lake ; Broughtons; Pilgrim and Phillips. ] Petition-Fund in Court--Payment out- No more Children. This was a
petition for payment out of court of the sum of New Consols' standing to the credit of an action, representing the apportioned share to which a father was entitled during his life of the residuary estate of the testatrix in the action, and to the capital whereof his children or their representatives were entitled subject to his life interest. The father was seventy-two years of age, and had been married for forty-two years to a wife now living, who was sixty-two years of age. By his marriage he had had three sons, and no more children, born in 1855, 1857, and 1862 respectively, all of whom lived to attain twenty-one, and one of whom had died a bachelor and intestate, and the father as sole next of kin was his administrator. There was medical testimony to the effect that it was impossible for the father to have any more children. Under these circumstances the father and two sons asked to have the fund paid out of court, one-third to the father as administrator of the deceased son, and one-third to each of his surviving sons. The father had incumbered his share, and his incambrancers consented. The petition was ordered to stand over generally, the Court refusing to make the order asked for.
[Plumbe v. Neild. Ch. Div.: North, J. Dec. 12.—Counsel : Edward Ford. Solicitors : Hepburn and Davison.] Practice-Costs-Interest on Costs—Demand-Estate being administered
in Court-Delivery of Bill to Person having Conduct-Solicitors' Remuneration Act 1881, 8. 7.--An order for the administration of M.'s estate was made on the 25th July 1889 in a creditor's action. In 1892 the conduct of the action was given to another creditor. M.'s solicitors carried in a claim for £700 costs incurred in his lifetime. They were also the golicitors of M.'s executrix, wbo was the defendant in the action. The chief clerk directed that their costs should be taxed, and for that purpose they should deliver their bill to the person having the conduct of the action. The bill was delivered accordingly on the 23rd Oct. 1892. This was an application by the solicitors that they might be allowed interest on their costs from the 23rd Nov. 1892, under sect. 7 of the Solicitors' Remuneration Act 1881, which provides that a solicitor may charge interest “from the expiration of one month from demand from the client. And in cases where the same are payable
out of a fund not presently available, such demand may be made
on the trustee or other person liable.” Held, that delivery of a bill to a person liable to pay is a demand, but that the person having the conduct of the proceedings was not a person liable within the meaning of the section ; that, therefore, no demand had been made, and the applicants could not be allowed interest.
[Re McMurdo; Pinfield v. McMurdo. Ch. Div. : North, J. Dec. 9. Counsel : Svinfen Eady, Q.C. and Eustace Smith ; Eastwick. Solici. tors : Hurford and Taylor ; E. F. B. Harston.] Practice—Third-party Order - Right of Indemnity--Breach of Trust
Partnership-Order XVI., r. 48.-On an action being brought against one T. for an alleged breach of trust by him and his co-trustee, one T. G. T. now deceased, he claimed a right of indemnity against third parties, on the ground that they were the surviving partners of the firm of solicitors of which the late T. G. T. was a member, and that he, acting within the scope of his apparent authority as partner, hud received trust money which had been lost or misapplied, and that the firm consequently became liable to make good the amount. The defendant had obtained, under Order XVI., r. 48, an order for leave to serve a third-party notice on the surviving members of the firm. This was a motion to discharge that order. Held, that it being clear that this was not a claim to indemnify the defendant against the plaintiff's claim against him in the action, and that the defendant's right (if any) against the surviving partners of the firm was not dependent upon whether he was liable to the plaintiff's claim, the case was not within Order XVI., r. 48, and the order must be discharged.
[Wynne v. Tempest. Ch. Div. : Chitty, J. Dec. 16.—Counsel : Byrne, Q.C. and Danckwerts; Levett, Q.C. and Stewart Smith ; MacSwinney. Solicitors : Vincent and Vincent ; Williamson, Hill, and
Co.; Witham, Roskell, Munster, and Weld; Perkins and Weston.] Settled Land Acts 1882 to 1890 (45 $ 46 Vict. c. 38, 88. 4, 6, 7, 45, 53, and
54 ; 47 & 48 l'ict. c. 18, 8. 4; and 53 & 54 Vict. c. 69, s. 7) --Tenant for Life-Powers of Leasing-Trustee—Trustees of Settlement- Notice-“ Best Rent”-Fine-Fraud on Power--Lessee-CompensationSetting aside Lease.---This was an action brought by the trustees of a will against the defendant, the lessee of a freehold house and farm, part of the trust real estate, for a declaration that the lease, granted to the defendant in 1892 by the tenant for life under the Settled Land Act 1882 and his mortgagees, was void, or that it should be set aside. In 1892 the mortgagees were in possession, and the defendant applied to
them for a lease for twenty-one years, and offered to obtain the concurrence of the tenant for life in the indenture of lease. The tenant for life, since deceased, was impecunious, and the defendant admitted that a sum of £21 was paid by him to the tenant for life on the execution of the lease in April 1892, but alleged the same was a gift and not a fine. No notice was given to the trustees of the will under sect. 45 (i.) of the Act of 1882. It was contended that the payment of the £21 was in the nature of a fine, and inasmuch as the lease was silent as to the payment of any fine, the tenant for life must be taken to have exercised his power of leasing under sect. 7 of the Act of 1890, and as in fact a fine was taken the power was badly exercised. It was also submitted that the powers of a tenant for life were fiduciary, and that a bargain and sale of such powers vitiated the whole transaction. The defendant insisted that the "best rent” that could have been obtained was given, and that it would be inequitable to set aside the lease; he offered to pay a further sum of £21 with interest to the plaintiffs to be treated by them as capital money. The plaintiffs produced no evidence of undervalue. Held, that the payment of the £21 was prima facie evidence that the “best rent" was not obtained, and that the lease was not within the provisions of the Settled Land Actsjand must be set aside.
[Chandler v. Bradley. Ch. Div.: Stirling, J. Nov. 14, 17, and Dec. 12.--Counsel : Grosvenor Woods, Q.C. and Dighton N. Pollock ; Graham Hastings, Q.C. and Michlem. Solicitors : A. R. and H. Steele ; Layton,
Sons, and Layton.] Solicitor and Client-Solicitor-trustee--Sale by way of Underlease
Remuneration Valuation fee - Costs of Summons - Solicitors' Remuneration Act 1881 (44 & 45 Vict. c. 44), General Order, sched. 1, parts 1 and 2.-A testator left his estate to his children for life with remainder to their children absolutely, and appointed the plaintiffs, who were solicitors, trustees of his will. An originating summons was taken out to determine a question of construction arising on the will, and the costs were ordered to be raised by sale or mortgage of leaseholds out of the corpus. A great part of the estate consisted of leaseholds, and it was determined to sell two messuages (part thereof), one by way of underlease, and it was so advertised in the particulars and conditions of sale. The solicitors sent in & bill of costs to persons interested in a moiety of the estate, in which they charged 4 guineas valuation fee, £5 in respect of lot one, which was a sale, and 10 guineas for lot two, which was sold by way of underlease, and based their claim thereto on schedule 1, part 2, of the Order under the Solicitors' Remuneration Act. Objection was taken to the valuation fee and to the fee for the sale by way of underlease on the ground that they were excessive; and, as to the latter, that the charge ought to have been the same as for lot one, viz., £5, being, in fact, a sale. A summons having been taken out to ascertain what soms were properly chargeable : Held, (1) that, as to the sale by way of underlease, schedule 1, part 2, did not apply, and that the respondent's contention was therefore right (Re Hellard, 74 L. T. Rep. 457, distinguished); (2) that, as to the valuation fee, it having been found not excessive by the chief clerk, that item should not now be disturbed, the form of the proceedings having prevented the opinion of the taxing master being taken thereon ; and (3) that, the litigation having been attended with but small benefit to the estate, the plaintiffs should only be allowed to take out of the moiety belonging to the respondents their costs of the summons as between solicitor and client, so far as they were due to the valuation, and that no other order should be made.
[Re Webb; Still v. Webb. Ch. Div.: Stirling, J. Nov. 25 and Dec. 15.—Counsel: Howard Wright; Upjohn. Solicitors : Trower,
Freeling, and Parkin; R. Chapman.] Special Case-R. S. C. 1883, Order XXXIV.- Freehold Hereditaments--Leaseholds-Feme sole—Joint Tenancy-Sererance by MarriageSeverance of Joint Tenancy by Husband. This was a special case stated by consent of the parties for the opinion of the court. The plaintiff claimed, as surviving joint tenant, to be entitled to certain freehold and leasehold premises, previously held by the plaintiff and Ellen G. (since deceased) as joint tenants down to the year 1859, when Ellen G. married A. J. G. (since deceased). In the year 1865 the plaintiff and A. J. G. demised the freehold premises to a tenant for a term of years. In the year 1867 the same parties sub.demised the leasehold premises to a tenant for a term of years. The defendants were the coheiresses and sole next of kin of A. J. G., and one of them, the defendant Louisa Rich, was the legal personal representative of Ellen G. and A. J. G. The defendants contended that the joint tenancy in the freehold premises was severed by the marriage of Ellen G., but if not at that time, then as to both the freehold and leasehold premises a severance was effected by the demise and sublease respectively in the years 1865 and 1867 aforesaid. Held, (1) that it was clear upon the authorities tbat marriage did not operate as a severance of the wife's joint tenancy in respect of the leasehold premises, and in the absence of authority as to the freehold premises the principle laid down in Re Butler; Hughes v. Anderson (59 L. T. Rep. 386 ; 38 Ch. Div. 286) should be applied, and that the joint tenancy therein was not severed ; (2) that the granting of leases by the plaintiff and A. J. G., the husband of Ellen G., did not effect a severance in respect of either the freehold or leasehold premises.
[Palmer v. Rich. Ch. Div.: Stirling, J. Oct. 26 and Dec. 9.Counsel : T. A. Nash; A. W. Rouden. Solicitors : Collins and Cook.]
judgment debtor, seized certain goods which A., the father of the judgment debtor, claimed to be his property. Notice of this claim was given to the bailiff, but A. did not either deposit the value of the goods he claimed, or the costs of the bailiff for keeping possession until the decision of the judge upon the claim could be obtained, or security for the value of the goods, as required by sect. 156 of the County Court Act 1888 (51 & 52 Vict. c. 43). The bailiff, therefore, proceeded to sell the goods so claimed as directed by that section, and paid the proceeds into court. A. knew of the sale, and took no steps to warn intending purchasers of his title. C. bought the goods at the sale. Afterwards A. sued C. in trover for the goods, and judgment was given in the County Court in his favour. C. appealed. It was contended for the appellant that the words of sect. 156 of the County Court Act 1888 were directory (“the bailiff shall sell such goods”), and that this meant that he should and could transfer a legal title to the goods, otherwise there was no legal sale at all. And it was the “goods” that were to be sold, not the debtor's interest, if any, in them, which was all which at common law a sheriff was entitled to sell. Therefore the decisions as to sheriffs did not apply. For the respondent it was contended that the bailiff could not transfer a title which was not in the debtor ; that he was in the same position as a sheriff selling under an execution issuing out of the High Court, and that there was no good reason why an owner who made a claim to goods wrongly seized should be in a worse position than one who had made no such claim, and it could not be contended that the section would be a defence to an action of trover by the real owner in the latter case. Held, that there was no authority on the point, but, on principle, statutory and judicial sales conveyed a good title whether the person for whose debts the goods were sold was the true owner or not.
[Goodlock v. Cousins. Q. B. Div.: Wills and Wright, JJ. Dec. 10. Counsel : for the appellant, Stroud; for the respondent, Cranstoun, Solicitors: W. H. Martin and Co., for Wm. Heath, Cheltenham;
Peacock and Goddard.] Licensing-Claim to sell Liquor without Licence-Licensing Act 1872,
8.3; 56 Geo. 3, c. 67, s. 1.–Case stated by an alderman of the city of London. The appeilant was summoned on an information laid by the respondent, acting chief inspector in the city police, for that he did on the 16th July 1896, unlawfully sell by retail certain intoxicating liquors which he was not then licensed to sell by retail, contrary to sect. 3 of the Licensing Act 1872 (35 & 36 Vict. c. 94). On the date in question the appellant had sold certain intoxicating liquor, at 45, Fish-street Hill, in the city of London, and he was not then licensed to sell the same in accordance with the provisions of the Licensing Act 1828, and the Acts amending the same. The appellant was the lawful son of one Thomas Killin, formerly a soldier in the 43rd Regiment of Foot, who served in the Peninsular war, and who was in 1824, after fifteen and three-quarters years' service, admitted as an out-pensioner at Chelsea Hospital, and the appellant was born in Nov. 1833. The appellant had for thirty-eight years preceding the present year openly carried on the business of selling wine, spirits, or beer, in the county of London and elsewhere in England, without any licence under the Licensing Acts, and such business was carried on without concealment, but the appellant did not communicate the fact that he was carrying on such a business to the police or to the excise authorities. It was contended on behalf of the appellant (inter alia) that the right and privilege of carrying on the trade of a licensed victualler, and of selling intoxicating liquor by retail without obtaining a licence in accordance with the provisions of the Licensing Acts, had been acquired by him under the 56 Geo. 3, c. 67, and that this right and privilege ware not affected by the repeal of that statute by the Statute Law Revision Act 1873, the said right and privilege being in existence at the time of the passing of the lastmentioned Act, and therefore within the exemptions in the Act. It was. contended for the respondent that the 56 Geo. 3, c. 67, did not apply so as to exempt the appellant from the provisions of sect. 3 of the Licensing Act 1872, that if it did so apply it was repealed by implication by the Licensing Acts 1828, 1869, and 1872, and expressly repealed by the Statute Law Revision Act 1873. The magistrate held that, having regard to sects. 3 and 72 of the Licensing Act 1872, the appellant should have obtained a licence, and he convicted him of the offence. The 56 Geo. 3, c. 67, provided that “all such officers, mariners, soldiers, and marines, as have been employed in the service of His Majesty since the 22n:1 June 1802, and also the wives and children of such officers, &c., may set up and exercise such trades as they are apt and able for in any city, town, or place in the kingdom, without any let, suit, or molestation of any person whateoever for or by reason of the using of such trade, &c.” Held, that the respondent's contention was correct, that the 56 Geo. 3, c. 67, did not apply so as to exempt the appellant and others from the general provisions of the Licensing or other Acts, but had reference merely so various local restrictions such as charters, &c., and that the appellant was properly convicted.
[Killin (app.) v. Sratton (resp.). Q. B. Div. : Wills and Wright, JJ. Dec. 12.-Counsel : Avory; Muir. Solicitors : Tiddeman and Enthoven ;
H. H. Crawford.] Local Gorernment-County Council-Bye-law - Usenf profane or obscene
Language in Person's own House-Annoyance of Public--Validity.Case stated by justices of the peace for the county of Leicester. An information was preferred by the appellant, an inspector of the Leicestershire police, against the respondent for that he did, on the 16th May 1896, use certain indecent and obscene language in his dwelling-house abutting apon and in a certain public street, called Chapel-street, against the bye-laws for the good rule and government of the county of Leicester. The justices dismissed the information. It was proved on the
QUEEN'S BENCH DIVISION. County Court-Execution-Claim to Goods seized--Sale-Title of Pur.
chaser-County Court Act 1888 (51 f 52 Vict. c. 43), s. 156.--The bailiff of a County Court in execution of a warrant of execution against a
part of the appellant and found as a fact that the respondent used certain indecent language in his dwelling-house, in a room abutting upon, and the door of which opened into, and was at the time of the alleged offence open to the public street, to the annoyance of a large number of persons then in such street. Amongst the bye-laws made for "the good rule and government” of the county of Leicester, which had been approved by the Secretary of State, was the following: No. 7. “No person shall in any house, building, garden, land, or other place abutting in or near to a street or public place, make use of any violent, abusive, profane, indecent, or obscene language, gesture, or condact, to the annoyance of any person in such street or public place.” These bye-laws were made under the powers given by sect. 16 of the Local Government Act 1888, which gives the same power to a county council to make bye - laws as the council of a borough have under sect. 23 of the Municipal Corporations Act 1882, which section gives power to make bye-laws “for the good rule and government of the borough, and for the prevention and suppression of nuisances," &c. It was contended before the justices, for the appellant, that there was power to make the bye-law in question. The respondent appeared in person before the justices, and stated in his defence that he was only having a few words with his wife, and committed no breach of any bye-law in the public street. The justices stated that there was in their minds a doubt as to the validity of the bye-law, and they did not think it right to convict the respondent of the charge, and they therefore acquitted him. The question now was whether the bye. law was ultra vires, unreasonable, and repugnant to the general law of the land or the provisions of the Public Health Act 1875, and therefore invalid. For the appellant it was now contended that the bye-law was valid ; that the was distinguishable from Strickland v. Hayes (74 L. T. Rep. 137; (1896) 1 Q. B. 290), where the words “ to the annoyance of the public” were omitted ; and that it came within Burnett v. Berry (74 L. T. Rep. 494 ; (1896) 1 Q. B. 641). The respondent did not appear. Held (allowing the appeal), that the bye-law was one which could properly be made for the good government of the county, and for the prevention of nuisances, and was valid. Case remitted to justices.
[Mantle (app.) v. Jordan (resp.). Q. B. Div.: Wills and Wright, JJ. Dec. 11.-Counsel : Toller. Solicitors : Field, Roscoe, and Co., for
Freer, Blunt, and Co., Leicester.] London County Council—Dangerous Structure-Ministerial Duties
Delegation-London Building Act 1894 (57 f. 58 Vict. c. ccxiii., part ix. ---Appeal by special case from a decision of a metropolitan magistrate dismissing a summons under sect. 114 of the London Building Act 1894 (57 & 58 Vict. c. ccxiii.). It appeared that, by a resolution of the late Metropolitan Board of Works, the duty of deciding whether a survey should be made of a structure alleged to be dangerous had been dele. gated to certain officers of the board. This practice and resolution continued in force under the London County Council. In the present case it had been followed, and the fact that the structure here in question bad been reported to be dangerous had never in fact been brought before the council in session. At the hearing of the summons the defendant raised the objection that under sect. 103 of the London Building Act it was only “ where it is made known to the council” that the structure is dangerous that the provisions as to dangerous structures apply. Here it was never made known to the council, and the council had no power under the Act to delegate its duties. The magis. trate adopted this view and dismissed the summons. The prosecutors, the London County Council, appealed. Held, that the council's daty in the matter was purely ministerial. and could be delegated, and that the fact was made known to the council when it was made known to the proper officer of the council. Appeal allowed.
(London County Council v. Hobbis. Q. B. Div.: Wills and Wright, JJ. Dec. 10.-Counsel : for the appellants, Avory. Solicitor : W. A.
Blaxland ; Respondent in person.] Meeting of an Association — Chairman refusing to put Resolution
Action by individual Member Special Damage. Appeal from a verdict and judgment in the City of London Court. The plaintiff, Miss Breay, who is a member of the Royal British Nurses Association, brought an action against Sir James Crighton Browne, the vice-president of that association, and vice-chairman of the General Council, to recover damages for a wrong which the plaintiff alleged she had sustained by reason of the refusal of the defendant, when acting as cbairman of a general meeting of the association, to put to the meeting a resolution which the plaintiff desired to put. It appeared that the ground of the defendant's refusal was, that the text of the resolution had not been duly forwarded to the secretary by registered post as required by a bye-law of the association. The envelope in which the text of the resolution had reached the secretary was withont the marks which usually appear on a registered letter, viz., the blue cross, the letter“ R.,” the stamps, and the word "registered,” but the plaintiff handed to the chairman a certificate of posting of a registered postal packet. The defendant, however, thought there was nothing to connect the certificate with the letter, and decided that the bye-law had not been complied with, and therefore the resolu. tion could not be put. The jury found that the defendant acted from an“ indirect” motive, and awarded a farthing damages, and the learned commissioner, after argument, gave judgment for the plaintiff. On appeal : Held, that such an action as this could not be maintained in the absence of evidence of malice; that there was no evidence of malice, and (per Wright, J.) that, if there had been, still the action could not be maintained by the plaintiff individually without proof of special individual damage.
Breay v. Brown. Q. B. Div.: Wills and Wright, JJ. Dec. 14 and
15.--Counsel: for the plaintiff, Blake Odgers, Q.C. and Scarlett; for the defendant, Muir Mackenzie. Solicitors : for the plaintiff, Mear and
Fowler; for the defendant, Poutifex, Hewitt, and Pitt.] Metropolis-Slaughterhouses—Bye-laws—Validity-Liability of Master for Act of Servant-Public Health (London) Act 1891, 8. 19 (4).-Case stated by a metropolitan police magistrate. The respondent was summoned on the complaint of the appellant on behalf of the London County Council in two summonses, he first charging “ that he, being the occupier of a licensed slaughterhouse at No. 392, Old Kent-road, did anlawfully slaughter certain sheep in the pound attached to the slaughterhouse, contrary to the bye-laws for regulating the condact of the business of a slaughterer of cattle made in pursuance of the Slaughterhouses, &c. (Metropolis) Act 1874 ;” and the second charging " that he, being the occupier of a licensed slaughterhouse, did unlawfully slaughter certain sheep within the view of other sheep, contrary to the said bye-laws." The bye-laws are in the following words : “No. 2. An occupier of a slaughterhouse (a) shall not slaughter or permit to be slaughtered any animal in any pound, pen, or lair, or in any part of the premises other than the slaughterhonse ;
(C) Shall not slaughter or permit to be slaughtered any animal within public view or within the view of any other animal.” These bye-laws were made under powers given by sect. 4 of the Slaughterhouses, &c. (Metropolis) Act 1874, which provided that: * The local authority may from time to time make bye-laws for regulating the conduct of any businesses specified in this Act, which are for the time being lawfully carried on within their jurisdiction, &c.” (repealed, but in substance re-enacted by the Public Health (London) Act 1891). It was proved that the respondent was the occupier of the slaughterhouse in question ; that on the 11th May 1896 two sheep were slaughtered in the pound on the premises and not in the slaughterhouse and in view of and close by eight or nine other sheep; that such slaughtering was done by one Brigden, who was foreman and slaughterman in the employment of the respondent, and whose business it was to slaughter animals for the respondent, but who had no general anthority to manage the business; that the respondent was absent from the premises at the time when such slaughtering was done, and that the respondent had forbidden his servants to do the acts complained of or either of them. Brigden was called as a witness, and acknowledged that he had disobeyed respondent's orders, and had done so to save himself trouble. The magistrate found that the acts complained of were done without the knowledge of the respondent, and he dismissed the summonses on the ground that the respondent could not be said to have “permitted” that which was done in his absence without his knowledge and against his express prohibition, and was not done by a person who had general authority to manage the business, and he referred the court to Somerset v. Wade (70 L. T. Rep. 452; (1894) 1 Q. B. 574). For the appellant it was contended that, as the statute (now the Act of 1891) gave power to make bye-laws for regulating the conduct of the business, the bye-law was good, and that the respondent onght to have been convicted thereunder for the act of his servant for which he was responsible. For the respondent it was contended that at common law a master could not be held criminally responsible for the act of his servant done without his knowledge; that the Act here did not render this a criminal offence, and that the bye-law could not make that a criminal offence which was not a criminal offence either at common law or under the statute. Held, that the authority had power to make the bye-law, that it was good, and that the respon. dent ought to have been convicted. Appeal allowed.
[Collman v. Mills. Q. B. Div.: Wills and Wright, JJ. Dee. 11 and 12.--Counsel: Avory; Morton Smith. Solicitors : W. A. Blax.
W. T. Ricketts.] Public Health-Liquids from Factory-Right of Owner of Factory lo drain Liquids into Seuer-Duty of Local Authority to provide Sewers
- Mandamus-Public Health Act 1875, 83. 15, 21, 299–Rivers Pollu. tion Prevention Act 1876, 88. 7, 10.--Argument of points of law before Charles, J. The plaintiff in the action when originally brought in 1895 was Philip Cadell Peebles, a paper manufacturer, who was owner and occupier of a factory called the Whiteash Paper Mill, within the urban district for which the defendants are the local authority. The plaintiff died since the action was commenced, but the action was continued by his executors, who were added as plaintiffs. For the purposes of the present argument the facts as stated in the pleadings were taken to be admitted. The plaintiff desired to cause bis drains to empty into the sewers of the defendants, and to carry into such sewers the liquids proceeding from his manufactory or manufacturing processes, and he alleged that the sewers within the district were not such as were necessary for effectually draining the district for the purpose of the Public Health Act 1875, and were not such as were necessary for effectually draining the plaintiff's premises, whereby he was unable to cause his drains to empty into the sewers or to carry into them the liquids proceeding from his factory or manufacturing processes. The plaintiff further alleged that he had required the defendants to cause such sewers to be made, but that they had refused to comply with such requirements. The plaintiff then brought this action claiming a man. damus commanding the defendants, (1) to cause to be made such sewers as may be necessary for effectually draining their district for the purposes of the Public Health Act 1875, and (2) to give facilities for enabling the plaintiff to carry the liquid proceeding from his factories or manu. facturing processes into the sewers under their control. Sect. 15 of the Public Health Act 1875 provides that “every local authority shall keep in repair all sewers belonging to them, and shall cause to be made such sewers as may be necessary for effectually draining their district for the purposes of this Act”; and sect. 21, that “the owner or occupier
of any premises within the district shall be entitled to cause his drains to empty into the sewers ” ; and sect. 299 provides for the interference of the Local Government Board, where complaint is made to them that a local authority has made default in providing their district with sewers. Sect. 7 of the Rivers Pollution Prevention Act 1876 provides : “Every local authority having sewers under their control shall give facilities for enabling manufacturers within their district to carry the liquids proceeding from their factories or manufacturing processes into such sewers ;” and sect. 10 gives a remedy in the County Court where any offence against the Act is committed, and where such offence consists in default to perform a duty under the Act the County Court may require the performance of the duty. Cur. adv. vult. Held, that the owner or occupier of a factory is entitled under sect. 21 to connect his premises by a drain with the sewer, and to pass through this drain into the sewer liquids from his factory (not being injurious to health), and is entitled under sect. 15 to a mandamus to compel the local authority to make such sewers as are necessary for effectually draining the district, notwithstanding sect. 299, which does not apply to such a case; but that he is not entitled to a mandamus to compel the performance of duties under the Act of 1876, as sect. 10 of that Act provides a sufficient remedy.
[Peebles v. Oswaldtuistle District Council. Q. B. Div. : Charles, J. Nov. 11, Dec. 11.-Counsel : Bigham, Q.C., and C. A. Russell ; J. Walton, Q.C. and Danckwerts. Solicitors : Soames, Edwards, and Jones, for Boote and Edgar, Manchester; Pritchard, Englefield, and Co., for Cos
teker, Darwen.] Public Health—Metropolis---Cowkeeper — Dai nan — Licence — Public
Health (London) Act 1891 (54 $ 55 Vict. c. 76), ss. 20, 141.--Case stated by Mr. Marsham, metropolitan police magistrate sitting at Greenwich Police-court. On the 16th May 1896 an information was laid by John Collman, on behalf of the respondents, that the appellant on the 23rd April 1896, being a person carrying on the trade of a dairyman, did unlawfully use certain premises at Joy Farm, Brockley, in the parish of Lewisham, in the county of London, and within the metropolitan police district, as a cowhouse without a licence from the respondents, contrary to the Public Health (London) Act 1891, sect. 20. Sect. 20 of that Act provides, (1) “ A person carrying on the business of a slaughterer of cattle or horses, knacker, or dairyman, shall not use any premises in London (outside the city of London) as a slaughterhouse, or knacker's yard, or a cowhouse or place for the keeping of cows, without a licence from the county council, and if he does he sball for each offence be liable to a fine not exceeding five pounds, and the fact that cattle have been taken into unlicensed premises shall be primâ facie evidence that an offence under this Act has been committed." Sect. 141 provides : “The expression “ dairy 'includes any farm, farmhouse, cowshed, milk-store, milk-shop, or other place from which milk is supplied, or in which milk is kept for the purposes of sale : the expression
dairyman’ includes cowkeeper, purveyor of milk, or occupier of a dairy.” The appellant at the date of the aileged offence lived at, and was the occupier of the premises known as Joy Farm, Brockley, in the county of London, and was keeping on a part of the premises which was fitted up as a cowhouse, three cows, five heifers, a young bull, and three calves. Three of the cows were in full milk. The appellant did not sell the milk, but was using it to rear up and fatten calves for sale to butchers. The premises had formerly been licensed by the respondents as a cowhouse or place for the keeping of cows pursuant to sect. 20, but in Oct. 1894 the respondents refused to renew the licence, and the premises were at the date of the alleged offence unlicensed under sect. 20. The appellant contended that, inasmuch as he did not sell milk, he was not carrying on the bnsiness of a dairyman within sect. 20. The respondents contended that, as the appellant was carrying on the business of a cowkeeper, and was keeping cows in the course of his business, an offence within sect. 20 had been committed. The magistrate was of opinion that the appellant was carrying on the business of a dairyman within sect. 20, inasmuch as he was a cowkeeper within sect. 141, and therefore a dairyman within the meaning of the Act, and he accordingly convicted the appellant and fined him 58. and 2s. costs. The appellant appeared in person. Held (allowing the appeal), that a cowkeeper means a person whose business it is to keep cows, that the appellant did not come within this description, but was in fact a farmer who kept cows as a farmer, and that he did not require his premises to be licensed.
[Umfreville v. The London County Council. Q. B. Div.: Wills and Wright, JJ. Dec. 9.-Counsel : Daldy. Solicitor : W. A. Blaxland.] Rating - Land“ used as Railway" “ Line of Railway”_" Station
Buildings and other Hereditaments.”——By a local improvement Act it was enacted (1) that land “ used as a railway constructed under the powers of any Act of Parliament for public conveyance » should be assessed so far as respected a certain general improvement rate in the proportion of one-fourth part only of its net annual value ; (2) and that as regarded a railway authorised by an Act passed at the commencement of the local Act "the line of railway” when constructed was to be considered agricultural land and rated in the same manner and proportion as the land abutting on each side of the line within the limits of the Act, and " the station buildings and other hereditaments" were to be rated in the same manner as “other houses, buildings, and hereditaments, within the limits of this Act, are to be rated for the purposes of the Act.” The railway and station having been constructed, they were assessed by the assessment committee, and the railway company being dissatisfied with such assessment appealed to quarter sessions. The Quarter Ses. sions held that the following portions of the railway company's property were parts of the "station buildings and other hereditaments,” and as such should be rated under the Act at their full net annual value : (1); Roo
covering railway; (2) Roof covering platform ; (3) Roof covering cab-drive; (4) Roof covering sidings;(5) Roof covering buildings in station ; (6) Platform under roof ; (7) Platforms uncovered ; (8) Cab-drive under roof ; (9) Cab-drive and horse landing uncovered ; (10) Cattle landing and pens; (11) Crane in goods yard ; (12) Signal boxes and appartenances ; (13) Engine turntable ; (14) Sidings and land. Held, that the principle of the South Wales Railway Company v. Swansea (4 El. & Bl. 189) and of Adamson v. Edinburgh and Glasgow Railway (2 Macq. 331) applied, namely, that whatever was necessary for the physical use of the lines of railway was to be treated as part of the railway. On this principle (1) (2) (4) (6) and (7) were parts of the railway, and were therefore to be rated ander the Act at one-fourth their net annual value. On the other hand (3) (5) (8) (9) (10) and (11) were not part of the railway, and were therefore to be rated at their full net annual value. As to (12) (13 and (14) counsel for the spondents admitted they were part of the railway and to be rated as such.
(London and North-Western Railway Company V. Llandudno Improvement Commissioners, Q. B. Div.: Pollock, B. and Wills, J., Dec. 4 and 5.--Counsel : for the appellants, W. Graham ; for the respondents, Marshall, Q.C. and E. H. Lloyd. Solicitors : C. H. Mason ;
Chamberlair, and Johnston, Llandudno.] Sea-walls - Liability to repair -- By Custom — Ratione tenuræ-Con
tinued Compulsion.---Appeal by case stated under sect. 11 of 12 & 13 Vict. c. 45 from an order of the respondents, Commissioners of Sewers of F. Level, directing the appellants to erect a sea-wall along the sea front of their land, parcel of the said level. F. Level lies on the north shore of the river T. where the T. is tidal and it is lower than the level of the sea on high spring tides. The appellants' land was part of what until the last century was an island separate from the rest of the level and having its own sea-wall. It had, however, been at some uncertain date joined to the rest of the level by new sea-walls. It appeared that, in 1881, owing to a change in the current of the river T., the wall on the appellants' land had gradually become undercut. No order was made by the respondents directing the appellants to repair it during these years until 1893, when it became ruinous. The respondents' engineer then came to the conclusion that to restore it would cost much more than to build an inset wall, and an order was made on the appellants to build such a wall. The respondents agreed to build the wall as ordered without prejudice to the question of their liability to repair. It was admitted that since 1818 orders by the respondents directing repairs had been made repeatedly on the appellants' predecessors in title and submitted to by them, but how and by whom the original wall was repairable before then there was no evidence to show. For the appellants it was contended that they were liable not solely, but merely rateably with the other landowners of F. Level on the ground that to show sole liability either by custom or ratione tenuræ it was necessary to prove that the custom or practice of repairing had not commenced within legal memory. Here it must have so commenced, since the wall as a protection to the whole level came into existence only on the island becoming joined to the mainland. Further, if the liability did attach by custom or ratione tenuræ to the appellants' land, the liability was merely to repair, and when the thing repairable had ceased to exist without their default there was no liability on them to restore it. And further, admitting the land on what was the island was solely liable to repair the wall of what was the island, there was no evidence to show that each landowner was liable to repair so much of the wall as happened to be on his land. For the respondents it was contended that the appellants and their predecessors in title having not merely repaired but repaired under compulsion the walls since 1818, the Court would presume that the custom or practice had a legal origin unless it was impossible so to hold. Here it was possible it originated in either of two ways--by custom of frontagers to repair, or ratione tenuræ---in the latter case the land being assumed to have all originally belonged to one owner and on division between different owners each part owner became liable to repair the walls on his land for the general benefit. Held, that the appellants were liable to repair the original wall, and had been guilty of default in allowing it to be undercut; but quære whether, but for agreement between them and respondents they could be held liable to build a new wall instead of repairing the old one.
[London and North-Western Railway Company v. Commissioners of Jobbing Level. Q. B. Div.: Wills and Wright, JJ. Dec. 8.-Counsel : for the appellants, Bosanquet, Q.C. and Stuart Moore, for the respondents, Channell, Q.C. and Wedderburn, Solicitors : C. H. Mason ; Gepp, Chelmsford.]
TEMPLE RESTAURANT.--This establishment, situate in Tudor-street, adjoining King's Bench Walk (four minutes from the High Courts of Justice), has been entirely rebuilt and enlarged. The Temple Restaurant is now replete with every convenience and comfort which experience and capital can command. Table d'Hòte daily, consisting of soups, entrées, joints, vegetables, &c., at 2s. each. No charge for attendance. Dinners à la Carte quickly served. Choice wines, spirits, and malt liquors. Chops, steaks, tea, and coffee. The Legal Profession is respectfully informed that Breakfasts, Dinners, and Teas are supplied in chambers if desired. Menus and tariffs forwarded daily for selection upon application.-[ADVT.]
HALLILAY'S CONVEYANCING.-A Concise Treatise on the Law and Practice of Conveyancing; together with the Solicitors' Remuneration Act 1881 (44 & 45 Vict. c. 44), and the Orders on Conveyancing Fees and Charges. Price 88.-HORACE Cox, “ Law Times" Office, Windsor House, Bream's-buildings, E.C.-[ADVT.]