the brick company it was contended that no part of the assessment could be charged at the higher rate, but that the whole property assessed was "land," and that, the dwelling-house being occupied by the foreman, and all the buildings and machinery mentioned being only ancillary to the land used as a brick field, the whole must be rated at the lower rate. On the part of the appellants the contention was that the whole of the assessment, so far as it was used for the purpose of making bricks, was a commercial undertaking and establishment in which capital was invested for commercial purposes, and that it should be assessed at a higher rate as being property other than land; and, secondly, that at any rate the dwelling-house, the engine-houses, the pumping stations, the mills, the wharf, and the sheds should be assessed at the higher rate.

Mr. JUSTICE CAVE said that he thought the quarter sessions were right in their decision on the case as it stood. They had only before them an assessment on the property as a whole, and, treated as a whole, this brickfield was "land" and not "buildings or property other than land.” Under the Act of Elizabeth making property rateable the distinction was drawn between "land" and "houses." In the Lighting and Watching Act, however, a difficulty was created by the introdiction of the word "buildings." Under that Act a question arose with regard to property which consisted of lands and buildings—namely, at what rate was it to be assessed? If it were buildings it was liable to assessment at a rate three times as high as if it were land. The Judges had fluctuated in their decisions on the matter, having at first sought to find some reason for the distinction. Once it was thought that it was a good ground of distinction that the property which derived greater benefit from the Lighting and Watching Act should pay at the higher rate. But, as the definition "property other than land" included not only coal mines, but saleable underwoods, it was clear that that principle could not be applied. In fact it could not be said that there was any further principle than this-that that which was land should be rated as land, and when a subject of rateability was land with buildings on it, if the land was accessory to the buildings it should be rated as property other than land, and if the buildings were accessory to the land it should be rated as land. Thus, if there was a large warehouse with a small yard, the land would be ancillary to the buildings. If there was a farm with a small shed for horses to shelter in, the building would be ancillary to the land. In this case the quarter sessions could hardly have come to any other conclusion than that which they had come to, treating the assessment as a whole. Those who made the rate might perhaps have properly broken up the rate and made a separate rating for the foreman's house. If that had been done, the rate on the house would undoubtedly have been on the higher scale. The learned Judge did not say they ought to have broken it up. If the house was lumped with the other large property, which was "land," the rate would be on the lower scale. Taking the brickfield as a whole apart from the house, all the engine-houses and sheds, &c., were obviously ancillary to the use of the land as a brickfield. The Court had no sufficient materials to say whether these constructions should have been rated separately. It was a question of common sense for the rating authority. Possibly if they were rated separately and apart from the brickfield, their rateable

value would be reduced below the one-third value, and therefore it might be wiser to leave them as land. The decision of the quarter sessions must be supported.

Mr. Justice LAWRENCE concurred.

Leave to appeal was given.-(T. L. R. [1897] Q. B, D., vol xiii., p. 300.)

(823.)

[IN THE COURT OF APPEAL.]

DODD v. CHURTON.

[MARCH 19TH, 1897.]

Building Contract—Liquidated Damages—Penalties of Delay—

Extras.

Where in a contract for the execution of specified works it is provided that the works shall be completed by a certain day, and, in default of such completion, the contractor shall be liable to pay liquidated damages, and there is also a provision that other work may be ordered by way of addition to the contract, and additional work is ordered which necessarily delays the completion of the works, the contractor is exonerated from liability to pay the liquidated damages, unless by the terms of the contract he has agreed that, whatever additional work may be ordered, he will nevertheless complete the works within the time originally limited.

Westwood v. Secretary of State for India (1863), 11 W. R., 261; 7 L. T., 736, followed.

Jones v. St. John's College (1870), L. R., 6 Q. B., 115, distinguished. — (L. R. [1897], C. A., vol. i. p. 562.)

(824.)

COURT OF APPEAL.

GREEN v. SYMONS.

[MARCH 19TH, 1897.]

Landlord and Tenant-Agreement to let House-Representation as to Drains-No Evidence of Warranty.

The action was by the defendant

This was an appeal from the judgment of Mr. Justice Lawrence, reported in The Times" of December 21st last. brought to recover damages for breach of warranty in the letting of a house at Earlswood to the plaintiff. By an agreement in writing the plaintiff took the house from the defendant for three years, at a rent of £50 a year. The plaintiff's case was that the defendant verbally warranted that the house was dry and that the drains were perfect, and he was thereby induced to enter into the agreement. The plaintiff

alleged that after he entered into possession he found that the house was not dry, and that the drains were not perfect, in consequence of which he and his family were compelled to give up residing theire. There was no warranty in the written agreement. At the trial the following questions were put to the jury :-(1) Was there a warranty? Answer: Only a verbal warranty. (2) Was the house damp and were the drains defective? Answer: House damp, but the drains not defective. The jury assessed the damages at £50. The defendant applied for judgment on the ground that evidence of a verbal warranty was not admissable. The learned judge, on further consideration, entered judgment for the plaintiff for £50. The defendant appealed, and further contended that there was no evidence of a warranty, but only of an innocent representation, and that to support an action for damages there must be a fraudulent misrepresentation.

The Court allowed the appeal.

The MASTER of the ROLLS said that the learned judge ought to have directed a verdict for the defendant. In his opinion what the defendant said to the plaintiff as to the house being dry was a mere innocent representation which did not give rise to any cause of action. The plaintif also relied upon a conversation that took place between his wife and the defendant when the plaintiff had signed the agreement and had given it to his wife to exchange for the counterpart signed by the defendant. There was no evidence, however, that the plaintiff's wife had any authority to do more than to hand over the agreement in exchange for the counterpart. There was no evidence, therefore, of a warranty, and judgment must be entered for the defendant, with costs here and below.

Lord Justice LOPES concurred.

Lord Justice CHITTY concurred. The evidence went to a representation only, and did not amount to a warranty. He agreed that there was no evidence that the plaintiff's wife had any authority except to hand over the agreement. But, even if she had, what was said to her about the house being dry did not amount to a warranty.—(C. A. [1897] T. L. R., vol. xiii., p 301.)

(825.)

[QUEEN'S BENCH DIVISION.]

BEVAN . BARNETT.

[MARCH 22ND, 1897.]

Landlord and Tenant-Re-entry-Forfeiture for Breach of CovenantWaiver Inconsistent Claims.

The case involved a point of law not previously decided in any reported case. The action was to recover possession of certain premises on the ground of breach of covenant to repair, the lease containing a power of re-entry. By the writ, arrears of rent accruing after the notice to repair were also claimed. The notice (with which the defendant failed to comply) was served on March 17, 1896, in accordance with Section 14 of the

Conveyancing Act, 1891. The rent was claimed up to midsummer, 1896, but the claim for rent was not repeated in the statement of claim.

His LORDSHIP held that the claim for rent accruing subsequently to the service of the notice amounted to a waiver of the forfeiture, and was inconsistent with a claim for possession on the ground of forfeiture.

Mr. WALLACE applied for leave to amend the writ, but his LORDSHIP held that such amendment, even if granted, would not alter the effect of the waiver.

The case then proceeded on a claim for damages for breach of covenant, also contained in the writ, but was ultimately adjourned pending a settlement.-(T. L. R., Q. B. D., vol. xiii. p. 310.)

(826.)

[CHANCERY DIVISION.]

AERATED BREAD COMPANY v. SHEPHERD.
[MARCH 23RD, 1897.]

Metropolis-Building-London Building Act, 1894, sec. 64 (18)-.
Chimney Flues-New Brickwork.

This was an action for trespass by lessees of No. 51. Cheapside, in respect of work done in rebuilding the adjoining premises, No. 52, Cheapside, by the owner, the defendant. The wall between the premises was a party wall within the meaning of the Metropolitan Building Acts; it was in dispute, however, whether the wall was a party wall in the sense that there was a common ownership or whether the wall was, as the Judge held, entirely the property of the plaintiffs, subject to easements of support. A small question, that may be of some interest to surveyors, was raised on the construction of the existing London Building Act (1894) section 64 (18), which provides that all chimney flues are to be surrounded by new brickwork of a certain thickness. The defendant had put chimney flues against the plaintiffs' party wall. These flues were constructed of actual new brick on three sides only. The two ends were bonded into the party wall, the face of the party wall itself forming the fourth side of the flue. The plaintiffs complained that the Building Act of 1894 had not been complied with; the defendant's expert witnesses, on the contrary, asserted that, in their opinion, it had, because the party wall, being sound and in good condition, was to be considered new brickwork within the meaning of the Act.

Mr. Justice NORTH, however, considered that this construction of the enactment was absurd, and held that the defendant had not complied with the Act, which required the brickwork to be new at the time of the construction of the flues, although the district surveyor had passed the work. The Judge did not, however, consider it necessary in the circumstances to grant a mandatory injunction. His Lordship decided the main issues recited in favour of the plaintiffs, and gave them the general costs of the action.-(T. L. R., Ch. D., vol. xiii. p. 311.)

(827.)

[IN THE COURT OF APPEAL.]

SMITH v. CHORLEY RURAL DISTRICT COUNCIL.

[APRIL 5TH 1897.]

Local Government-Building-Disapproval of Plans—“ New Street ”— Action for a Mandamus dismissed.

This was an appeal by the plaintiff from the judgment of Mr. Justice Kennedy after the trial of the action with a jury. The plaintiff proposed to build certain houses in the defendants' district, and deposited plans of the houses with the defendants. The defendants considered that the proposed houses amounted to the laying out of a new street, and disapproved of the plans upon the ground that the proposed street was not of the width required by their bye-laws. The action was brought for a mandamus to compel the defendants to approve and pass the plans. At the trial the jury found that the plaintiff by the proposed buildings was not laying out a new street. The learned Judge, upon further consideration, held that an action for a mandamus would not lie, the proper remedy, if any, being by application for a prerogative writ of mandamus. He therefore gave judgment for the defendants.

The COURT dismissed the appeal.

The MASTER of the ROLLS said that the defendants, a local tribunal, which admittedly had jurisdiction to consider whether they would approve or disapprove of certain plans laid before them, entertained that question. The plans were laid before them, not that they might ministerially signify their approval, but that they might say whether in the honest exercise of their jurisdiction they would approve or disapprove of them. It was admitted that the defendants honestly considered the question. The question before them depended upon one fact, amongst others—namely, whether this was a new street. They were bound to consider and determine that fact. They decided that it was a new street, and they disapproved of the plans. It was impossible to say that they had done anything beyond their jurisdiction. They acted within their jurisdiction in every way. It followed that no appeal lay from that decision. The plaintiff brought this action for a mandamus to compel them to alter their decision and to approve of the plans. The learned Judge thought it better not to withdraw the question whether or not it was a new street from the jury, and the jury found that it was not a new street. Upon further consideration the learned Judge came to the conclusion that there was no question for the jury, and entered judgment for the defendants. In his (the Master of the Rolls) opinion no appeal lay from the decision of the local tribunal acting honestly within their jurisdiction. Therefore there was no question for the jury, and this action could not be maintained.—(T. L. R. [1897], C. A., vol. xiii., p. 327.)