lighthouse (among others), the fact that these commissioners are entitled to levy certain dues for the maintenance of such lighthouse (among others), but not for purposes of making profit, is not to be taken into consideration in assessing the rateable value of such lighthouse. Commissioners of the Port of L. were empowered by statute to erect and maintain certain docks and harbour works and to levy rates for these purposes. By subsequent Acts they were empowered to erect and maintain lighthouses, lightships, buoys, &c., for securing the navigation of the Bay of L., and they were empowered to raise by light dues enough money to discharge efficiently this duty. The said dues were to determine if and when the commissioners ceased to maintain any lighthouses, but the commissioners were not entitled to make profit out of the light dues. In assessing one of the lighthouses of the commissioners, the overseers of B. fixed its rateable value with reference to the whole dues received. Held, that the dues should not be taken into consideration in fixing the rateable value of the lighthouse, and that the criterion of the rateable value was the structural value of the building. (Commissioners and Trustees of the Port of Lancaster, apps., v. Overseers of the Parish of Barrow-in-Furness, resps.)

66

...

page 358

POST OFFICE (PROTECTION) ACT 1884. Die for making fictitious stamp-Possession of die for stamping illustrations on newspaper-"Lawful excuse"-Sect. 7 of the Post Office (Protection) Act 1884 imposes a penalty upon any person who, unless he shows a lawful excuse," has in his possession any die for making any fictitious stamp. The respondent had in his possession, without the licence or authority of the Crown, a die which was capable of making a representation of a current colonial postage stamp. This die was made abroad for the respondent, and the only purpose for which he had the same in his possession was for making upon an illustrated stamp catalogue illustrations of the stamp in question, to appear on the catalogue with illustrations of other stamps, chiefly for sale to stamp collectors. The die was capable of making a fictitious stamp, but it was found that the facts proved absolute bona fides on the part of the respondent, and that there was a certainty that he would not use the die for any improper purpose: Held, that the circumstances under which the respondent had the die in his possession did not constitute a "lawful excuse, and that the respondent was therefore liable to the penalty imposed by the section. (Dickins, app., v. Gill, resp.)...

POST OFFICE SAVINGS BANK. Deposits-Nomination by a testatrix of an executor named in her will-Evidence rebutting presumption of gift.-Where a testatrix subsequent to the execution of her will filled up a nomination in the prescribed form of the amount (being under 1007.) due to her by the Post Office Savings Bank at her decease, in favour of one of her executors, and there was sufficient evidence to rebut the presumption that such executor should receive such amount as a gift, it was held that he received the same in his capacity of executor, and he was ordered to account for the same accordingly. (Re Read; Turner v. Read.)

PRACTICE.

Administration-Creditor-Judgment under Order XIV. Priority.-An order giving liberty to sign final judgment under Order XIV., is not equiv alent to actual judgment for the purpose of giving priority to a creditor in an administration action to the other creditors of the debtor. (Re Gurney; Clifford v. Gurney.) ... Appeal-Conditions-Security - Supreme Court of Lagos Ordinance No. 4 of 1876, Order LIII.Action in formâ pauperis-Discretion of court.

Under the orders in force in the Supreme Court of Lagos an application for leave to appeal may be made either to the court of first instance or to the full court. The court of first instance can only give leave to appeal upon security for costs being given, but the full court has an absolute discretion to give leave upon such terms as it thinks just. Where a litigant who had been admitted to sue in forma pauperis applied to the full court for leave to appeal: Held, that it was not a proper exercise of the discretion committed to the court to refuse leave to appeal unless the applicant gave security for payment of the whole sum awarded by the judgment appealed against. (Johnson v. Voight and Co.)

...page 57 Appeal "Criminal cause or matter"-Case stated on appeal from order granting distress-warrant in respect of poor rate.-A case stated by justices on appeal from an order granting a distress-warrant to enforce payment of a poor rate is a "criminal cause or matter" within the meaning of sect. 47 of the Judicature Act 1873, and no appeal lies to the Court of Appeal from the decision of the Queen's Bench Division upon such case. (Seaman, app., v. Burley, resp.) Appeal from chambers-"Matters of practice and procedure "-Judgment under Order XIV. — An appeal against an order of a judge at chambers giving leave to the plaintiffs to enter final judgment under Order XIV., r. 1, is an appeal in matter

...

91

407

of practice and procedure" within the meaning of sect. 1, sub-sect. 4, of the Judicature Act 1894, which must be brought to the Court of Appeal. (Cannon Brewery Company v. Gilby.) ... Collision-Writ issued against foreign corporation -Service on managing clerk of London agentOrder IX., r. 8.-In a collision action in personam against a foreign corporation the writ was served upon the manager of B. M. and Co., a firm which in England transacted the business of the corporation at 110, Fenchurch-street. Upon the door of the offices of the firm appeared the words "B. M. and Co., General Agents," and, underneath those words the name of the defendant corporation. The offices were taken by B. M. and Co. in their own name, and the rent was paid by them and not by the defendant corporation, who paid the firm a commission and an annual fixed allowance for doing the business of the corporation. In advertisements and on business cards those seeking information as to the sailings of the vessels owned by the defendant corporation were directed to apply "at the compaay's offices, 110, Fenchurch-street." On a motion by the defendants to set aside the service of the writ: Held. that the manager upon whom the writ was served was not the servant of the corporation, but of the agents of the corporation, and that the service was not, therefore, a service upon the corporation within the meaning of Order IX, r. 8. (The Princess Clémentine.) ... 695 Costs-Action remitted to County Court-Action of tort-Costs of appeal to Court of Appeal after order to remit-Taxation. After an order had been made remitting an action of tort to the County Court, under sect. 66 of the County Courts Act 1888, but before the writ and order were lodged with the registrar, an interlocutory appeal was taken by the plaintiff to the Court of Appeal, and was allowed with costs. The action was subsequently tried in the County Court, and the plaintiff succeeded. Held, that the provisions of sect. 66 of the County Courts Act 1888 did not apply to the costs in the Court of Appeal, and that those costs must be taxed by the taxing officer of the High Court, and not by the registrar of the County Court. (D'Errico v. Samuel and another.)

...

Administration action-Defendant trustees -Severance of defence-Deprivation of costsDiscretion of court-Unreasonable carrying on of proceedings-Right of appeal.-In Dec. 1886 an action was brought to administer the estate of a deceased testator. The defendants were A. and B., two of the executors and trustees of the will.

59

O Consultations

84

Until Nov. 1892 the defendants were represented by the same firm of solicitors. A. then severed the defence, and for some time appeared in person, but in Jan. 1894 he appointed another solicitor to act for him. On the further consideration of the action, Kekewich, J. made an order that one set of costs only should be allowed to the executors and trustees out of the estate, and that those should be paid to B. On appeal: Held, that the evidence before Kekewich, J. did not justify the view that A. had unreasonably carried on the proceedings; that an opportunity ought to be afforded him of explaining his conduct in having severed the defence; and that, therefore, the appeal was competent. Held also, that, on the evidence now adduced, there was no ground for judicially depriving A. cf his costs; and that therefore the order of Kekewich, J. must be varied by directing that one set of costs only should be allowed, but that the same should be apportioned by the taxing master between A. and B., so, nevertheless, as only to give A. costs for work actually done by him. (Re Isaac; Cronbach v. Isaac.) ...page 638 Costs Taxation Expenses of witnesses. A taxing officer is not bound to inquire into the length of consultations charged for, or the occasions on which they were held, but in estimating the fees he may take into consideration the number of consultations allowed. Judgment of the court below reversed. The costs of witnesses should not be taxed upon a fixed general rule, bnt a reasonable allowance should be made with reference to the case of each separate witness. (Commissioner for Railways v. O'Rourke and another; and Cross-Appeal.) Costs not paid-Sequestration-Judicial discretion -Order XLIII., r. 7.-Where an application is made under Order XLIII., r. 7, for leave to issue a sequestration for non-payment of costs, the burden of proof is on the debtor to show that the proceeding wonld be futile, and that the sequestration ought not to issue. It is not necessary for the creditor to point to any particular property which may be made available, if the court or judge is satisfied that the application is not unreasonable. When the court or judge has exercised a discretion and made an order, it should not be interfered with on appeal, unless it is clear that it has proceeded on some erroneous principle. (Hulbert and another v. Cathcart.)... Discovery Partnership books-Sealed-up memoranda Privilege - Irrelevancy of entriesJurisdiction of court to unseal. The word "privilege " in Order XXXI., r. 19A, clause 2, should not be construed narrowly, and it extends to every case in which inspection is denied, on the ground that the documents in dispute are privileged or irrelevant to the subject matter of the action; the court has jurisdiction to unseal and inspect such documents for the purpose of determining whether the objection to discovery is well founded. The plaintiffs objected to the inspection by the defendant of certain sealed-up parts of certain books referred to in an affidavit of documents, on the ground that they were irrelevant to the matters in question in a partnership action. On a motion by the defendant for production of the books and for liberty to unseal such parts as had been sealed up, the plaintiffs were ordered to make a further affidavit as to whether the sealed-up parts related exclusively to private matters or contained matters relating to the partnership; one of the plaintiffs, in obedience to the order, deposed that the sealed-up parts were irrelevant, and he specified the nature of the matters therein contained, and objected to further discovery. Held, that the court had power to unseal and to inspect the sealed-up parts of the books, and that the circumstances of the case justified the court in exercising such power. (Ehrmann v. Ehrmann (No. 2).... Evidence Examination of witnesses abroad Letters of request to foreign tribunals to take

66

-

302

243

rative.

evidence-Discretion of court-Evidence corroboLetters of request to a foreign tribunal, for the examination of witnesses abroad, should not be allowed to issue unless absolutely necessary for the purposes of justice, and only where the evidence to be obtained thereunder would be material to prove the main question between the parties, and not merely collateral evidence to fortify other evidence. (Ehrmann v. Ehrmann.)page 37 Evidence-Order to examine person making statements deposed to in affidavit filed on motion-Ex parte application--Where, in an affidavit filed on behalf of the plaintiffs on a motion, which by consent stood over, statements were deposed to as having been made by a person to the deponent, and which were material for the purposes of the plaintiffs' case, leave was, on an ex parte application, given to the plaintiffs to examine such person before an examiner, the deposition to be given in evidence as if it were an affidavit. (The Turner Pneumatic Tyre Company Limited v. The Dunlop Pneumatic Tyre Company Limited.) Interlocutory injunction Undertaking damages-Action on behalf of Crown-Prerogative of Crown -Where an action for an injunction is commenced by the Attorney-General suing on behalf of the Crown, and an application is subsequently made for an interlocutory injunction, it is not according to the ordinary practice of the court to require any undertaking as to damages to be given by the plaintiff as a condition of obtaining such inlerlocutory injunction. (Attorney-General v. The Albany Hotel Company Limited.) ...

as

...

to

651

140, 195

15

Judgment against a married woman-Discovery in aid of execution-Examination of persons other than the judgment debtor.-Where judgment had been recovered against a married woman, and an order was made that an inquiry should be held as to her separate estate not subject to any restraint on anticipation, for the purpose of satisfying the judgment debt and costs, and that she should attend and be examined before one of the masters of the Supreme Court, and that she should pay the taxed costs of the inquiry: Held, that the court had no jurisdiction to grant leave for the issue of a subpoena for the examination under this order of any other witness besides the judgment debtor. (Hood-Barrs v. Heriot.) Jurisdiction-Joinder of person as plaintiff without authority-" Own consent in writing thereto Stay of proceedings-Costs-Liability of solicitor acting without authority. Under rule 11 of Order XVI. a person cannot be joined as a plaintiff to an action unless he gives his consent in writing and actually signs it: and the consent of his solicitor on his behalf, written in his absence and signed by the solicitor, is not such a consent as is required by the rule. Where a solicitor obtains the joinder of a person as a plaintiff to an action upon an informal consent, and orders have without the knowledge of such person been made against him directing him to pay costs, the proper course to adopt is, namely, to direct a stay of all proceedings in the name of the person improperly joined as a plaintiff and all proceedings against him under the orders made since he was so joined, and to omit his name from all future proceedings. The solicitor who made the improper joinder will be ordered to pay all the costs of the person improperly joined as between solicitor and client, and all the costs of the defendants as between party and party. (Fricker v. Van Grutten.) ... 117

Representation order-Will-ConstractionNext of kin-Effect of former judgment-Res judicata.-The judgment of the court had been obtained in 1883 upon a question arising upon the construction of the will of the testator in the action, and certain trust funds were divided in pursuance of it. The present applicant, J. W., as legal personal representative of his deceased wife, E. W., who was a daughter of the testator, and died without issue, took out this summons, raising the same question of construction as was decided in 1883, but in reference to E. W.'s share

...

...

page 175

of the trust funds. J. W. and E. W. were not parties to the action on the former occasion, but a representation order was then made appointing a representative of the next of kin in the action, and they took the benefit of the order and received a share of the trust funds. Held, that, though E. W.'s right as next of kin was not affected by the representation order, and oonsequently she and her husband, J. W., were not bound by the judgment, it was contrary to good faith and equity that J. W. should, after acquiescence in it, and taking the money under it, be entitled to maintain this application. (Re Lart; Wilkinson v. Blades.)... Jurisdiction-Receiver before probate-Caveat-Lis pendens.-A testator having made two wills, the executrix appointed by the earlier will entered a caveat in order to prevent probate of the second will. The caveat was warned, and the widow entered an appearance. She then applied for the appointment of a receiver and administrator pendente lite of the testator's property. Held, that the receiver could not be appointed, as no writ having been issued, there was no lis pendens; and the court had no jurisdiction to make the appointment under sect. 25, subsect. 8, of the Judicature Act 1873. (Salter v. Salter.) Originating summons-Mortgage-Construction Jurisdiction.-An originating summons was taken out by a mortgagor under LIV.A., rule 1, to determine the rights of the mortgagor and mortgagees under the mortgage. A preliminary objection was raised on behalf of the defendants that the court had no jurisdiction to decide the question on originating summons, the mortgagor having made no offer to redeem. Held, that the court was competent to decide the question on originating summons under the above-mentioned order. The mortgagees to add their costs to their security. (Re Nobbs; Nobbs v. Law Reversionary Interest Society Limited.) Parties Alternative redress Action against broker for breach of warranty of authorityJoinder of principal as co-defendant after action brought-Order XVI., rr. 7 and 11.-In an action brought by a shipowner against a broker for breach of warranty of the authority of a principal to charter a ship, it appeared probable to the plaintiff, on discovery of documents, that the brokers had the authority of the principal to charter the ship, and he thereupon applied for leave to join the principal as a co-defendant in the action. Held, that the principal could be joined as a co-defendant, notwithstanding that the plaintiff's cause of action against the principal was different from his cause of action against the broker. (Bennetts and Co. v. M'Ilwraith and Co.)

Plaintiff improperly joined Discontinuance

...

Costs Solicitor Company. Action commenced in the name of a company, and others, as plaintiffs, to restrain further proceedings in a voluntary winding-up. A motion for an injunction to this effect was dismissed, and the plaintiffs ordered to pay the costs. The company then gave notice of motion to strike out their name as plaintiffs on the ground that the solicitors had no authority to join the company, and that the solicitors might pay all the costs. After service of this order, the solicitors gave notice of discontinuance of the action. The company now brought on their motion. The solicitors took the preliminary objection that the action was gone, and the court had no urisdiction to deal with the motion. Held, that, as the rules make no special provision on the point, the old practice in Chancery prevails, according to which such a motion could be made after dismissal of a bill; therefore, the court had jurisdiction. (Gold Reefs of Western Australia v. Dawson.)

Pleading-Statute of Frauds-Order XIX., rr. 15, 20. -The plaintiffs brought an action upon a written guarantee signed by the defendant. The defendant

309

145

575

did not plead the Statute of Frauds. At the trial the plaintiffs gave evidence of a verbal contract, and in answer to the case so set up the defendant sought to rely upon the Statute of Frauds. Held, that, if the evidence was admissible at all, the defendant was not debarred from relying on the statute by the fact that he had not pleaded it in the first instance, and that the judge should have directed the necessary amendments to be made in the pleadings. (Brunning v. Odhams Brothers Limited.) ... page 602 Receiver Disputed title- Ejectment actionDefendant in possession as heir-at-law-Jurisdiction-Discretion.-A motion was made by the plaintiffs in an ejectment action for the appointment of a receiver, until the trial of the action, of the rents and profits of certain properties, of which the defendant was in possession as heir-atlaw of the former owner. The plaintiffs had brought another action against the defendant in respect of other properties in the same county, held, as they alleged, under the same title as those of which the defendant was in possession, and they had obtained judgment in their favour as to part of the lands claimed. An appeal was, however, pending in the House of Lords. The defendant was impecunious, and had charged part of his property; he had also given a bill of sale over his furniture and effects. It was decided by Kekewich, J. (ante, p. 311), that since the passing of sect. 25, sub-sect. 8, of the Judicature Act 1873, the court had jurisdiction to appoint a receiver in the case of a disputed title to real property at the instance of the plaintiff, although the defendant was in possession, as the case of Berry v. Keen (51 L. J. 912, Ch.) had decided that sect. 25 had overruled Talbot v. Hope-Scott (31 L. T. Rep. O. S. 392; 27 L. J. 273, Ch.); that it was a matter for the judicial discretion of the court; and that as it was desirable to keep matters in medio pending the litigation, and also, having regard to the impecuniosity of the defendant, the order for the appointment of a receiver would be made. The defendant appealed. Held, that under sect. 25, sub-sect. 8, of the Judicature Act 1873, the court had jurisdiction, where just or convenient, to appoint a receiver in such a case as the present. But held, that the circumstances of the case did not justify the appointment of the receiver; and that therefore the order for the

appointment must be discharged. (Foxwell v.
Van Grutten.)
311, 368

Security for costs-Plaintiff out of the jurisdiction
-Application after delivery of defence. - The
old rule in Chancery, that an application for
security for the costs of an action must be
made within a reasonable time, is inconsistent
with the provision of rule 6 of Order LXV., that
such security may be "given at such times as
the court or a judge shall direct," and it must
therefore be taken to have been abrogated.
Under rule 6 there is a judicial discretion to
direct security for costs to be given at any
stage of the proceedings. (Re Smith; Bain v.
Bain.).
Solicitor

Costs Interest "Person liable Administration action-Delivery to person having conduct Solicitors' Remuneration Act 1881 General Order, sect. 7. In an action for the administration of McMurdo's estate his solicitors brought in a claim for costs against the testator's estate. They were also the solicitors of his executor, the defendant in the action. They delivered their bill to the person having the conduct of the action on the 23rd Oct. 1892. The taxing master's certificate was not made until 1896. The solicitors claimed interest from the 23rd Nov. 1892. Held, that the person having the conduct of the action was not a person liable within sect. 7 of the General Order under the Solicitors' Remuneration Act 1881, and the person liable was the executor; and that there having been no delivery to or demand on him, the solicitors were not entitled to interest. (Re McMurdo; Penfield v. McMurdo.) 576

...page 542

Suing in forma pauperis-Affidavit verifying case for opinion of counsel-Case and opinion made exhibits-Right of opposite party to inspect.When the case submitted to counsel, and his opinion thereon, are made exhibits to the affidavit produced to the judge by an applicant for leave to sue in forma pauperis, the opposite party is not entitled to inspect those exhibits. (Sloane v. The Britain Steamship Company Limited.) Summons for judgment - Dismissal - Technical objection-Renewal of application-Res judicata. Upor a summons for judgment under Order XIV., in an action against the acceptors of a bill of exchange, unconditional leave to defend was given upon the ground that the name of the firm in which the bill was accepted was not mentioned on the writ. The writ was accordingly amended by adding the name of the firm as defendants, and a fresh summons taken out, on which leave to defend was given upon terms of payment into court of the amount claimed. Held, that the court had jurisdiction to hear and adjudicate upon the second summons. (Dombey and Son Limited (in liquidation) v. Playfair Brothers and others.)

Third-party procedure - Right of indemnity

Breach of trust-Partnership-On an action being brought against one T. to make him liable for an alleged breach of trust by him and his deceased co-trustee, one T. G. T., a solicitor, T. claimed indemnity from the surviving members of T. G. T.'s firm, on the ground that he, acting within the scope of his apparent authority as a partner, had received trust money, which had been lost or misapplied, and that the firm became liable to make good the amount. T. had obtained an order for leave to serve a third-party notice on the surviving members of the firm under Order XVI., r. 48. Held, upon a motion, that the order must be discharged, the defendant's right (if any) to indemnity from the surviving members of the firm not being a right depending on his liability in the action, but independent of it altogether; and, therefore not being within Order XVI., r. 48. (Wynne v. Tempest.)

...

PROBATE DUTY. Will-Foreign asset-Share of residue.-A testator, domiciled in England, by his will bequeathed various specific legacies, and devised one-fourth of the residue of his real and personal estate to his wife. Part of the estate consisted of large sums of money invested on mortgages of real estate abroad. Before the estate had been completely administered, and while the mortgages were still unrealised, and no part of them had been appropriated to any specific share of the residue, the wife died. Held, that the right of the wife's executors being simply to one-fourth part of the residue of the husband's estate, and not to any of the investments comprised in it in specie, her estate was liable to pay probate duty on the value of one.fourth of the foreign mortgages. (Lord Sudeley and others v. The AttorneyGeneral.)

PUBLIC HEALTH. Bye-laws-Power to make bye-laws to regulate conduct of business "-Prohibition of acts not prohibited by statute -Validity Liability of master for acts done by servant.-Under a statutory power, which enabled the local authority to make bye-laws for " regulating the conduct of any business specified" in a section of the Act, amongst which was the business of "slaughterer of cattle," the local authority made bye-laws providing that: "An occupier of a slaughterhouse (a) shall not slaughter or permit to be slaughtered any animal in any part of the premises except the slaughter-house; (c) shall not slaughter or permit to be slaughtered any animal within public view, or within the view of any other animal." Held, that these bye-laws could properly be made under the power to make

676

624

398

66

...

375

bye-laws for "regulating the conduct of the business," and were valid, notwithstanding that they prohibited acts not prohibited by the statute: and that, upon the proper construction of the bye-laws, slaughtering' meant slaughtering either by the master himself or by his servant, so as to render the master liable to the penalties for acts done by his servant in the course of the business, without the master's knowledge and against his instructions. (Collman, app., v. Mills, resp.) ... ...page 590 Drain-Nuisance-Expenses-Apportionment-Dispute-Posted letter-" Prepaid."-Summons for a declaration that the plaintiffs were entitled to a charge under sect. 257 of the Public Health Act 1875 on certain land and premises, of which the defendant was owner, in respect of the apportioned amount payable by the defendant in respect of expenses incurred by the plaintiffs under sect. 41 of the said Act, and sect. 19 of the Public Health Acts Amendment Act 1890, and otherwise, and interest; also a sale to enforce the said charge. The defendant disputed the apportionment. Held, that it was a condition precedent according to sect. 267 of the Public Health Act 1875 that a letter giving notice of dispute of apportionment should be prepaid; and as there was no evidence that the defendant's letter giving notice was prepaid, the notice of dispute was bad; that the plaintiffs had acted within their powers, and there must be a declaration as asked by the summons, and an order for sale if necessary. (Walthamstow Urban District Council v. Henwood.) Drain or sewer-Drain draining two or more houses belonging to same owner-Expenses of repairing -Liability of owner-Mandamus.-A drain, constructed at the rear of a block of houses for the purpose of draining the houses, had one communication at the end of the line of houses with a public sewer under the street in front of the houses, and it received the drainage of each house and conveyed the same to the sewer, and the houses so drained all belonged to the same owner. The drain being out of repair the owner of the houses requested the sanitary authority to repair it, but they refused on the ground that it was not a public sewer repairable by them, but was a single private drain repairable by the owner. By a section in a local Act the sanitary authority had all the powers conferred by sect. 41 of the Public Health Act 1875 in cases where two or more houses are connected with a single private drain which conveys their drainage into a public sewer," but the authority had taken no proceedings under sect. 41 with regard to this drain. Held, that the bringing in of sect. 41 of the Act of 1875 by sect. 19 of the Public Health Act 1890, or by any similar section in a local Act, does not affect or take away the liability of the sanitary authority under sect. 15 to repair sewers generally, and that in the present case, as no proceedings had been taken by the authority under sect. 41 for the abatement of any nuisance in the drain, they remained to the full extent liable under sect. 15 to repair the drain in question as a sewer. (Reg. v. The Mayor, &c., of Hastings.) Farmer keeping cows on his premises keeper Licence from County Council. A person who, being the occupier of a farm within the county of London, keeps upon his premises cows, the milk of which is used, not for sale, but for fattening calves, is not a keeper "within sect. 141, and therefore not a dairyman within sect. 20 of the Public Health (London) Act 1891, and, consequently, does not require a licence from the London County Council for the keeping of such cows. (Umfreville, app., v. The London County Council, resps.) Liquids from factory-Right of owner of factory to drain liquids into public sewer-Duty of local authority to provide sewers, and give facilities for draining into existing sewers-Mandamus.-An

66

...

...

...

action was commenced by a manufacturer for a mandamus to compel the local authority, under sects. 15 and 21 of the Public Health Act 1875, to cause to be made such sewers as were necessary for effectually draining their district for the purposes of the Act; and, under sect. 7 of the Rivers Pollution Prevention Act 1876, to give facilities for enabling the manufacturer to carry the liquids proceeding from his factory into the sewers under their control. Held, that a mandamus ought to be granted in so far as it related to the claim to compel the local authority to cause to be made such sewers as were necessary for effectually draining their district under the Public Health Act, and the manufacturer's premises in particular, upon the ground that, under sects. 15 and 21, the authority were bound to provide sufficient sewers to carry off the liquids from factories within their district, and that for any default by the authority in this obligation sect. 299 provided no exclusive or sufficient remedy, and had no application in such a case as the present where the question was one of law and not of fact; but that a mandamus ought not to be granted to compel the authority to give facilities under sect. 7 of the Act of 1876 for enabling the manufacturer to carry the liquids from his factory into existing sewers, upon the ground that for any default in that respect a sufficient and exclusive remedy was provided by sect. 10 of the Act, which constituted the County Court of the district the tribunal to deal with such default. (Peebles and others v. The Oswaldtwistle Urban District Council.) London-Vacant land-Nuisance-Vestry-Owner -Injunction.-Local authorities in London have a right both at common law and under the Public Health (London) Act 1891, to bring an action in the High Court for an injunction to restrain the owner of a vacant piece of land from allowing the land to be a nuisance; but the Court is reluctant to grant an injunction which the owner may not be able to obey, when the local authorities have special powers under the Act to abate the nuisance themselves, and to make the owner pay the expenses. (Attorney-General v. Tod-Heatly and Brownrigg.)

...page 689

or

National school - Trustees Street ExpensesCharge on school - Enforcement by sale mortgage-School Sites Act 1841-Where the court had declared that the apportioned amount of expenses incurred for paving and other works in a street on which a national school abutted, together with interest thereon and costs, were a charge on the school and premises: Held, that the sum so charged could be raised by sale or mortgage free from the trusts, notwithstanding that the site of the school was originally conveyed to the trustees for the purposes of a school, and no other purpose whatever." (Hornsey District Council v. Smith.)

RAILWAY.

Accommodation works-Fence-Fence erected more than five years after opening of railway-Liability to maintain.-By sect. 68 of the Railways Clauses Act 1845, a railway company "shall make and at all times thereafter maintain sufficient 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"; and, by sect. 73, the company shall not be compelled to make any further or additional works for the use of occupiers and owners of land adjoining the railway after five years from the opening of the railway for public use." The defendants did not erect any fence separating the railway from the adjoining land within the five years, but did erect one subsequently. Owing to the defective condition of this fence an animal of the plaintiff escaped from the adjoining land,

452

684

of which he was the occupier, and was injured on the railway. Held, that the defendants were bound to maintain the fence, though it was erected after the expiration of five years from the opening of the railway, and were liable for the injury to the animal of the plaintiff. (Dixon v. The Great Western Railway Company.) page 245, 539 Compensation-Portion of factory taken-Material

detriment to remainder-Obstruction of accessGrant of perpetual right of way under viaductAccommodation works. A railway company's private Act, which incorporated the Lands Clauses Acts and part 1 of the Railway Clauses Act 1815, provided that the owners of certain manufactories whereof parts only should be required for the purposes of the Act might be required to sell to the company such parts only, without the company being compellable to purchase the whole or any greater portion of the premises, if such parts could, in the opinion of the authority to whom the question of disputed compensation might be submitted, be "severed from the remainder of such properties without material detriment thereto. The company gave notice to treat for

a portion of the premises of one of these manufactories. This portion included the only access from a public highway to the remainder of the premises, and it was required merely for the purpose of building a railway viaduct across it. Before the umpire to whom the question of compensation was submitted, the company undertook to grant to the owner of the manufactory a perpetual right of way under one of the arches of the viaduct, which was then in course of erection, which would give him practically the same access to the remainder of his premises as he had enjoyed before. The company then contended that, for the purpose of deciding whether the severance would cause any "material detriment" to the remainder of the premises, the umpire ought to take into consideration their liability under sect. 68 of the Railway Clauses Act 1845 to construct accommodation works under certain circumstances and also their liability under the undertaking given by them. Upon this contention the umpire stated a special case for the opinion of the Court. Held, that the company was liable under sect. 68 to make good the interruption caused to the use of the land through which the railway was to be made, and that the umpire was entitled to take such liability into consideration in determining whether the severance would cause 66 material detriment to the remainder" of the land. Held also, by Lord Esher, M.R. and Smith, L.J., that the company had power in law to grant the perpetual right of way which they had undertaken to secure, and that the umpire was also entitled to take this undertaking into consideration. Held also, that the court had jurisdiction over the costs of the appeal on the special case, and that the decision to the contrary effect in Holliday v. The Mayor and Corporation of Wakefield (59 L. T. Rep. 248; 20 Q.B. Div. 699) is no longer a binding authority. (Re An Arbitration between Gonty v. the Manchester, Sheffield, and Lincolnshire Railway Company.)

239

Railway Companies Act 1867-ConstructionStatutory obligation-Deed of arrangement-Contract-Railway company-Rights of judgment creditor of railway.-An obligation imposed by statute on two or more railway companies to repay moneys actually expended by one of them in maintaining a joint station and other works connected therewith is not a contract "within the meaning of sect. 4 of the Railway Companies Act 1867 between the railway companies, and a judgment recovered by one of the railway companies for the non-performance of such an obligation on the part of one of the others cannot be enforced by issuing execution on the rolling stock and other chattels of such railway company. (Re Manchester and Milford Railway Company.) 416 Traffic-Through booking-Reasonable facilitiesJurisdiction of Railway Commission Court.-Per