LEAVES FROM AN ENGLISH SOLICITOR'S

NOTE-BOOK.

THE STORY OF A CLAIM TO A PEERAGE.

About thirty years since, a retired captain in the English navy asked me if I would take up his claim to an extinct Irish peerage. Being young and not overburdened with work at the time, and being greatly taken with the appearance and charming manners of my would-be client. I readily agreed to read up his case, and, if it seemed capable of proof, to carry it in to the House of Lords for him.

The incidents attending my own investigation of his claim were so extraordinary that I think they will form a story of interest to the readers of The Green Bag.

I shall call the old captain "the claimant"; for obvious reasons I suppress the real title of the peerage, and substitute fictitious names for the various parties to the history.

The claimant was no base-born impostor; at our first interview he proved to demonstration, with certificates of births, marriages, and deaths, that he was the eldest lineal grandson of an old man who died in the Fleet prison, London, in the year 1820, at the age of eighty. The sole question was, who was the old Fleet prisoner?

The claimant told me that he had spent many happy hours with the old man in his room in the Fleet; who had, time after time, told him he was entitled to be called Lord X, but that, for reasons connected with his former life, he was precluded from doing so; but whenever he should die, the claimant, as his grandson, ought to make good his claim; he would find all the necessary proofs in a pocket-book which the old man carried in his breast by day, and put under his pillow at night. The old man also told the claimant that he had been committed to prison for contempt of court, Lord Eldon having once ordered him to pay over some money to some person who, he thought, was not entitled to it; and he had snapped his fingers in the face of the learned Lord Chancellor, and told his lordship he would see him dd first, whereupon he had been ordered into custody, and had remained in the prison ever since. He was visited in the prison by members of the aristocracy, and had every comfort supplied to him, and seemed always to have plenty of money. As to his early life, the old Fleet prisoner told his grandson, the claimant, that he had no recollection whatever of his mother, and only a very faint memory of his father, who had married a second wife; and he, the claimant, never could get on with his stepmother, who was not a lady by birth; when he was a young lad his father had got him into the Royal Navy as a midshipman, he had been guilty of some serious offence on board ship, for which he had been sentenced to be shot, but the admiral of the fleet, to save his life, contrived that he should be secretly landed at some foreign port, and had supplied him with money to take him back to England; from that time he had led a life of adventure, and had not returned to England till long after his father's death, and it was only quite late in life he had learned he was the real heir to the peerage. This was the history of the old Fleet prisoner as told by him to his grandson the claimant, and told by the claimant to myself. The old Fleet prisoner, his son (the claimant's father) and the claimant himself bore the same name, and used the same coat of-arms, crest and motto as the noble family of X.

One of the first thoughts which occurred to my mind was that, as the old man had died in prison, there would, by the law of England, have been an inquest held on his body in the prison, and that the record of the inouest might throw some light on the question of his identity. With some trouble, I procured access to the record of the inquest, kept in Newgate; I found that the record made no mention

of any evidence being given of his identity-a most extraordinary omission.

I now pass to the noble family of X, one of the oldest families in English history, a former ancestor having played a prominent part in an historical event which occurred in the reign of Henry the Second. The title of Lord X was originally created in the reign of one of the Stuart kings, and had descended from father to son for four generations till the year 1752, which is the first important date in this story. In that year William, the eldest son of Charles, the fifth Lord X, died suddenly (killed accidentally, I think) in his father's lifetime. A few years later on, Charles, the fifth Lord X, died, and Thomas, his second son (as the eldest surviving son), succeeded to the title and estates, and held them till about 1780, when he died without male issue: thereupon Henry, the third son, succeeded, and he too died without issue about 1790; thereupon Philip, the fourth and youngest son, succeeded, and held the title and estates till 1798. when he died, leaving an only child, a daughter named Helen, who inherited the estates; but the title became extinct. Helen, the heiress, married a rich commoner, Mr. Z, who held the estates in right of his wife, and was living at the date of the death of the old Fleet prisoner.

The certificate of the burial of the old Fleet prisoner showed that he died in the year 1820, at the age of eighty. He was born in 1740, therefore; and it was within the category of possibilities that he was a son of William, the eldest son of Charles, the fifth Lord X. Assuming this as a fact, and also assuming the story of the old Fleet prisoner to be true, William must have been twice married-first, before 1740, to the Fleet prisoner's mother; and, a few years later, to the Fleet prisoner's stepmother.

Having started on this double assumption, I proceeded to put it to the test of proof by comparing the histories given in the various peerage books published between 1750 and 1820, which I hunted up in the reading-room of the British Museum. I can only give the general result of my search. I found that, though the earliest books stated that William died unmarried, later books stated that he left a widow, whom he married in 1750, and that he died childless (a very unusual expression), and that his widow lived to the second decade of the present century. Obviously, the old Fleet prisoner could not have been the lawful issue of this marriage. Then the thought occurred to me that he might have been the base-born issue begotten of William by this or by some other union. I kept the thought to myself, and proceeded to search for the entry made of the marriage of 1750 in the register of the parish church where the marriage was solemnized. There I found that William was described as a widower, and his second wife as the daughter of a blacksmith-a strange corroboration of the old Fleet prisoner's story, that his stepmother was not a lady by birth-a fact which might account for the suppression of all mention of the marriage in the earlier peerage books, though another explanation might be forthcoming.

At this point a friend of mine, a professional genealogist, informed me that some few years before the union of Ireland with England all Irish peers were ordered to make to the Irish Herald's College a return of their families, with all dates and circumstances relating to their succession to the peerage. Following up this hint, I found that the return of the X family was made by Thomas, the sixth Lord X, some few years before his death; that he made no mention of his elder brother William having left a widow; and that the dates therein given of his brother William's death aud of his own father's death, and consequently of his own succession to the peerage, were incorrect by several years when compared with the actual dates. as given in the parish registers, of their burial. I asked myself, as I now ask my readers, does a man of birth and education lightly forget the date of the death of an elder brother which made him heir

apparent to a peerage and to valuable family estates, and the date of the death of his own father which brought him into actual enjoyment of these? The discrepancies in dates were very extraordinary, and I never could account for them satisfactorily except on the theory that, on William's death, Thomas, knowing that William had a son abroad, did not in his own mind become heirapparent; and so when his father (the fifth Lord X) died, Thomas knew that he only held the estate as locum tenens for his elder brother's absent son, the rightful heir. I found out that it was not until many years after his father's death that Thomas took his seat in the Irish house of peers. I may also state here that, with all my searching, I could never discover that William left any will, or that letters of administration, in default of a will, were ever taken out to his personal estate. This would be inconsistent with the old Fleet prisoner's being a base-born son of William, for whom naturally William would wish to make some provision; but it would not be inconsistent with the Fleet prisoner being a lawful son, who would, under the law of entail and settlement, become entitled in possession to the estates on the death of the fifth Lord X, and also to the personal estate, subject, as to both estates, to the widow's dower and thirds.

I must now relate an extraordinary circumstance told me by the claimant, namely, that, immediately he heard of the death of the old Fleet prisoner, he went with his father (who died soon after) to the prison, and that they saw a strange gentleman leaving the chamber of death; that they made inquiry as to who he was, and learned that it was Mr. Z, who had married Helen, the heiress. The claimant and his father searched every nook and cranny of the room for the old man's pocket-book, but it was nowhere to be found, and never came to light afterwards. I asked myself, and I ask my readers, how was it that Mr. Z was on the spot before the old man's son and grandson? What was the old Fleet prisoner to him, or he to the old Fleet prisoner? and had his early presence in the death chamber anything to do with the loss of the pocket-book? and what interest had he in the contents of the pocket-book? But if the old Fleet prisoner's story were true, and if the old man lying dead in that chamber was the rightful peer, and the rightful owner of the estates, to the knowledge of Mr. Z, who was then enjoying the estates in right of his wife; and if (as was probable) the old man had boasted to others besides the claimant (for instance one of the warders of the prison) that the proofs of his title (such as a certificate of the marriage of his parents) were in his pocket-book, and this boast had reached Mr. Z's ears-his presence in the death chamber, and the abstraction of the pocket-book, which otherwise would be unaccountable, are no longer insoluble mysteries; for Mr. Z would have the liveliest interest in destroying all evidence which would enable the old man's son to lay claim to the title, and to the estates also.

All the energies of my mind were now directed to discover legal proof of the first marriage of William the widower, the eldest son of the fifth Lord X, and of the birth or baptism of the old Fleet prisoner. I got the claimant to repeat again to me his recollections of his conversations with the old Fleet prisoner; and I eagerly fastened on one statement, viz., that the old man's early childhood had been passed in the house in which Tyndale had worked on his translation of the Holy Scriptures. I had no great difficulty in locating the house, and I reasoned to myself that it was probable that the old Fleet prisoner had been baptized in the parish church of the village in which the house stood; that possibly his mother had belonged to that parish, had been married in that church, and had been buried in the burying-ground attached to it. Acting on that reasoning, I wrote to the clergyman of the parish asking him to search his registers between the years 1738 and 1748 for the entries of any baptism, marriage or burial of any person by the name

of X. In those days parish registers were not kept with the same care with which they are kept at the present time, and births, marriages and deaths were often entered in the same book; every genealogist will know this to be the fact. I received a most courteous reply from the rector of the parish, that his registers embraced the period I mentioned, and, indeed, went very much farther back; that he found no entry of any marriage, baptism or burial of any person of the name of X, but that the book had been mutilated, and the pages for the years 1739 to 1742 had been cut out; but he added that he knew a duplicate of the register book was kept at the diocesan registry, from which, perhaps, I might get supplied with the evidence which I wanted. I lost no time in writing

to the diocesan registrar, and his reply gave me the same result; his duplicate register had also been mutilated, in the same manner and for the same period. Was it an unreasonable presumption on my part, from these premises, that the mutilated registers contained entries of the marriage of the old Fleet prisoner's mother, William's X's first wife, in the year 1739, of the baptism of the old man, their child, in the following year, and of the burial of the mother in 1742; and that the mutilation of the books was the work of Mr. Z, who, by means of the contents of the abstracted pocket-book had learned where to go to carry out his purpose?

And now I must disappoint my readers. Had I been writing fiction I might have drawn upon my imagination, and produced a highly-coloured dénouement of this interesting story. But I am chronicling actual facts, and I have in these pages given a faithful record from memory of a deeply interesting investigation made by me for a client, professionally, some thirty years since. I must close this story precisely at that point of the drama at which the curtain was rung down by the Supreme Manager of that little stage on which each of us poor players struts and frets his little hour, and then is heard no more. At this point of the drama I received news of the sudden death of my client, the claimant; with his death, my work— which had had, as my readers may suppose, an irresistible fascination for me-came to an end.-Green Bag.

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W. S.-Now, Quiller, ask Mr. Mosenfeld to step in. (Erit Quiller; enter Mr. Mosenfeld.) Good morning, Mr. Mosenfeld; will you be seated. You have called, I suppose, in connection with your letter; very sorry to have kept you waiting so long-very sorry.

Mr. M.-Pray don't mention it. I know, Mr. Worldly Solicitor, that you are a very busy man; indeed, your reputation for shrewdness brings me here.

W. S.-I am greatly flattered; but in what respect can I help you?

Mr. M.-Well, no doubt you have heard of young Mr. Taube.

W. S.-Certainly; a very foolish young man who has already squandered an immense fortune.

Mr. M.-Well, well, he certainly does go the pace.
W. S.-A gambler and spendthrift, but as much sinned

against as sinning-led into evil ways by vicious companions.

Mr. M.-Very likely-very likely. Well, Mr. Flintthe Lincoln's Inn lawyer- no doubt you know him. W. S.-An excellent man-a great friend of mine. Mr. M.—Well, Mr. Flint has acquired a wonderful influence over young Taube, and has in my opinion induced him to act in a most dishonourable manner. W. S.-Really, I can scarcely credit it.

Mr. M.-Young Taube has on several occasions obtained loans from me-you know that I am in the habit of assisting these foolish young gentlemen who run into debt.

W. S.-I have heard, Mr. Mosenfeld, that you are what the world calls a money-lender.

Mr. M.--Yes-yes-usurious money-lender. As a matter of fact I do not charge greater interest than the risks I run warrant.

W. S.-That, of course, is a matter of opinion.
Mr. M.-Of course.

W. S.-Well, what about young Taube?

Mr. M.-Well, as I was saying, I have on various occasions helped him with loans, but latterly he declined to do business with me-he considered my terms too hard. Well, I carry on another what you call moneylending business under the name of Bright & Son, and you can judge of my surprise and amusement when I found one morning a letter from Taube, asking our terms for a loan of £2,000 on a rather risky security. I, as Bright & Son, wrote him, and he agreed to the terms, called at the office, saw my manager, and signed the promissory note. The note has fallen due, and I have from time to time pressed him for payment, but have elicited no answer till the other day, when I had a letter from your friend Mr. Flint, in which he quietly tells me that he has advised Mr. Taube not to pay, and that he is prepared to accept service of any process on behalf of Mr. Taube. He advises me to consult a respectable solicitor, and that I shall find that Mr. Taube has a complete defence, and adds something about being surprised that I, a professional money-lender, have not heard of Gordon v. Street. Well, now, I have heard about this abominable case, but do not quite understand it; hence my visit to you, a respectable solicitor, to talk it over. W. S.-Well, Mr. Flint, as I understand the law, is quite right.

Mr. M.-But on what possible ground?

W. S.-Well, in this case of Gordon v. Street (18 L. N. 234), a man obtained a loan from, and gave a promissory note to, a notorious money-lender who had assumed the name of Addison for the purposes of his business. When the borrower found out who his creditor really was, he repudiated the contract, and offered to repay the loan with reasonable interest, and the Court of Appeal held that he was entitled to do so.

Mr. M.-But on what ground? Such a decision is destructive to the law of contract; no person will in future be safe. It will be open to any rascal to say that he did not intend to contract with me, and repudiate his contract.

W. S.-Probably, when you contract with him under an assumed name.

Mr. M.-But this is surely entirely new law?
W. S.-Not altogether.

Mr. M.-I never came across such a case before.

W. S.-Well, in a celebrated case of Smith v. Wheatcroft (L. R. 9 Ch. Div. 223), the principle laid down by Pothier in his "Traité des Obligations" was cited with approval, viz, that an error as to the person with whom a con. tract is made annuls the contract when personal considerations enter into it, but not when the party who seeks to repudiate it would have been equally willing to contract with any other person. This case and the principle cited appeared to convince the Court of Appeal.

Mr. M.-But this principle will allow every dishonest borrower to repudiate his contract.

W. S.-Not if it is carefully applied. In your case there can be no doubt that Mr. Taube would not have contracted with you, Mr. Mosenfeld, had he known that

Messrs. Bright & Son was merely Mr. Mosenfeld under another name-this you must admit.

Mr. M.-I fail to see how that can be proved.

W. S.-Why, Mr. Mosenfeld, you told me distinctly that he grumbled at your terms, and declined to do any further business with you. What made you start business under the name of Bright & Son ?

Mr. M.-Well, to tell you the truth, I was obliged to change my business name. "Labby "had hit me so

hard in Truth that no one would come to me to borrow money.

W. S.-Because of your sharp practice and exorbitant interest, 1 think Mr. Labouchere said?

Mr. M.-Yes.

W. S.-And to avoid this, you use an assumed trade name, your object being to conceal your identity; in other words, you were guilty of fraud, to put it plainly, as the jury held in this very case of Gordon v. Street.

Mr. M.-But the line of argument is unsound. Suppose Taube had gone to some other money-lender trading in his own name, and given him a note; when the note matured he must have paid? W. S.-Certainly.

Mr. M.-Then why should he not have to pay me? W. S.-Because he will be able to satisfy the Court that he was induced to contract with you by fraud. Mr. M.-But I cannot see any fraud. Money-lending is, I suppose, a lawful business?

W. S-Yes; until possibly the Money-Lending Bill becomes law.

Mr. M.-It is not unlawful to trade under an assumed name?

W. S.-No.

Mr. M.-Very well, then; you give your argument away. I am carrying on, you admit, a lawful business in a lawful way. Where's the fraud?

W. S.-Quite true, but you fraudulently concealed your identity. Would Taube have borrowed the money from Bright & Son had he known he was borrowing from you? Mr. M.-Probably not.

W. S. Certainly not, I think we may safely say. Well there's the fraud.

Mr. M.-But there can be no fraud in carrying on a lawful business in a lawful way.

W. S.-But that is mere repetition, and you drive me to repetition. In the opinion of the jury the fraud consisted in inducing the man to enter into the contract by fraudulently concealing identity.

Mr. M.-Then you think I cannot force this young rascal to pay?

W. S.-I think that in consequence of this decision Mr. Taube cannot be held bound by this contract.

Mr. M.-You apparently have the usual prejudice against us poor devils of money-lenders.

W. S.-As in all other trades, there are money-lenders and money-lenders.

Mr. M.-And you agree with "Mr. Labby," eh, that I am the worst? Well, well, I didn't come here to discuss the ethics of my business with you.

W. S.-Quite true. To return to law, I think Gordon v. Street good law. To entitle a party to repudiate a contract, it is sufficient if he can satisfy the Court that he would have been unwilling to enter into a contract on the same terms with anyone else.

Mr. M.-But he would have contracted with some other money-lender on precisely the same terms.

W. S.-That is for the Court to decide on the evidence before it, and in your case there is the added element of fraud.

Mr. M.-That I fail to see.

W. S.-But the facts are similar to Gordon v. Street, and it is for the jury to say whether there is fraud or not.

Mr. M.-Well, I am prepared to fight the case and take it to the Lords. Will you act for me? Although your personal prejudices are against me, I am sure you will do your best.

W. S.-There are only two points involved, and I think you will certainly lose on one. The contract was

induced by fraud. This is for a jury, and in your case the facts are similar to Gordon v. Street.

Mr. M.-All right-we will lose on that; but what about the other point? Taube would have been willing to enter into a similar contract with any other moneylender. I know some men who will share the expenses of the appeal. All we money-lenders will have to shut up if we cannot trade under assumed names.

W. S.-Is that your only reason for appealing?
Mr. M.-My chief reason.

W. S.-Well, when the Money-Lending Bill passes, you will not be allowed to trade under an assumed name. Mr. M.-When? You mean if it passes?

W. S. Very well-if it passes. Why not take Taube's money and reasonable interest, and wait and see if the Bill passes?

Mr. M.-That's sound advice; I'll act on that. One moment;-let me see if I understand that case of Gordon v. Street. First, a person can repudiate a contract if induced by fraud?

W. S.-Certainly-very old law.

Mr. M.-For a money-lender to trade under an assumed name is apparently evidence to go to a jury of fraud?

W. S.-If, as in this case, it can be proved that he made statements that he was not as other moneylenders were, and did not charge exorbitant rates.

Mr. M.-Yes-yes. Bright & Son made a strong point of that. Secondly, error as to identity of party entitles the other party to repudiate?

W. S.-Within a reasonable time. A question of fact for the jury in each case.

Mr. M.-Did Taube, in your opinion, repudiate within a reasonable time?

W. S.-Certainly; and provided the person would have been unwilling to contract on similar terms with any other person.

Mr. M.-Yes, yes; and here's a weak point-young Taube would, I am sure, have borrowed the money on the same terms from any other money-lender, but not from me.

W. S. As to that he must satisfy the Court.

Mr. M.-I see. Well, we will leave it over for the present. Good morning; much obliged for your advice. Sorry you don't like me and my trade. Good morning.

W. S.-Good morning. (Exit Mr. M.) Well, he's a cool hand; there's no shame in him-old steel-skinned alligator! Glad I got out of acting for him. On the ground of fraud that case is possibly correct. I am not at all sure, however, that there is not a good deal in what the old alligator says. Taube would have borrowed the money from any one on any terms other than the alligator. It's a nice point. Quiller (rings), ask Mr. Tom to step this way.-Law Notes.

COSTS UNDER THE LANDS CLAUSES ACTS. It is unfortunate that the most technical part of the law relating to the compulsory acquisition of land is that which is connected with costs. The reported cases dealing with this question when the money is paid into court are alone to be counted by the hundred. The amount in such cases is, however, comparatively trifling, but it is when we come to the costs of the assessment of the compensation by arbitrators or by a jury that questions involving considerable sums arise. The principle laid down in the Lands Clauses Acts as to the payment of costs in these cases is a very fair and equitable one. The persons taking the land, or the promoters of the undertaking, as they are termed in these Acts, must always pay their own costs, and they are also bound to pay those of the landowner unless they have previously offered a sum equal to the (See amount at which the property is assessed. sections 34 and 51 of the Lands Clauses Act, 1845.) It is in determining the meaning of the expression "previously offered" that the difficulties have arisen, and to add to the difficulty the language of the sections of the Act dealing with the costs of an arbitra

tion are different from those in relation to the assessment by a jury. It is true that in many cases the difficulties are due to the irregularities in the procedure. The general practitioner has often no great acquaintance with this class of work, and too frequently he does not pay sufficient attention to the provisions of the sections, so that he finds himself in a situation which has not been contemplated by the Act.

a new one.

When the amount of compensation is assessed by a jury, the offer which governs the costs must be contained 'n a notice of intention to summon a jury provided for by section 38 of the Lands Clauses Act, 1845. It will not avail the promoters in the least if they make an offer of a larger sum either before or after this notice. It must be in the notice. If after delivering the notice the promoters desire to make a bigger offer they can do so, but if it is to be of any use to save costs, they must first of all formally withdraw the notice containing the offer and then deliver (See Reg. v. Smith, Re Westfield and Metropolitan Railway Company, 12 Q. B. D. 481.) This point is clearly settled in regard to the ordinary cases of assessment by jury after notice to treat, and before the promoters take possession. If, however, they have taken possession of the land before the compensation has been settled a new procedure is introduced, for then no notice is required under section 38, and there is no other provision in the Act as to when the offer is to be made to save costs. The courts, however, in several cases have fixed a date. The offer must be given before or at the date when the promoters send the ten days' notice of the time and place at which the inquiry is to be held, which notice is required by section 46. This is a very much later date than in the previous case, and the offer is not required to be inserted in any notice. The promoters may make an offer, withdraw it, and increase it, or otherwise alter it up to the time above mentioned.

But it is always open to the landowner to have the amount of his compensation settled by arbitration. He may exercise this right at any time provided the promoters have not actually issued their warrant to the sheriff to summon a jury. In such a case his right to costs is governed by section 34 of the Lands Clauses Act, 1845. That section is unfortunately not in the same terms as section 51, which regulates the matter in jury inquiries. It simply provides that all the costs of the arbitration shall be borne by the promoters "unless the arbitrators shall award the same or a less sum than shall have been offered by the promoters. It does not say "previously offered, " as does section 51, nor is any date mentioned which can guide the parties as to the time before which the offer must be made. The courts, therefore, have been called upon to settle the matter, and Fitzhardinge v. Gloucester and Berkeley Canal Company, L. R. 7 Q. B. 776, is generally regarded as the leading case. In it the court decided that the words "shall have been offered" mean offered at or before the commencement of the arbitration. Then as to when the arbitration can be said to commence, it was further held that it commences when an arbitrator is appointed and notice is given to the other side of such annointment. Once this is done there is a submission to arbitration, and no offer made after that will deprive the landowner of his costs if he is awarded more than was offered previous to that date. Up to and at the time when such notice is given the promoters may withdraw their previous offer and make a new one. In Gray v. North Eastern Railway Company, 1 Q. B. D. 696, the promoters had made an offer of a larger sum than awarded, made but they it after the arbitrators or umpire had been appointed. contended They that as been no costs had incurred and nothing done under the submission that

was

their offer was in time, but the court held it was too late, and that the claimant was entitled to his costs.

In

The courts having decided these points with comparative clearness the more recent cases have been more particularly concerned with the question as to whether the promoters' offer has been a valid one. Miles v. Great Western Railway Company, [1896] 2 Q. B. 432, the defendant company had offered £11,000 in respect of certain land to be taken and the damage caused to his remaining land by the severance. One item of his claim was by reason of the fact that he would be unable to drain the rest of his land. While the parties were actually before the arbitrator the railway company agreed to allow the landowner to make a sewer through the land to be taken, so that, in fact, this item of compensation was withdrawn from the arbitration. The award was for a less sum than had been offered, but the court held that the offer was not made in respect of the same subject-matter as that which was ultimately submitted to the arbitrator, and that therefore no valid offer was made which would deprive the landowner of his costs.

The promoters were more successful in Lascelles v. Swansea School Board, which was tried recently. In that case the defendants had made an offer in the notice under section 38 of their intention to summon a jury. The landowner, however, expressed his desire to have arbitration; so arbitrators were appointed, but no offer subsequent to the one in the notice was given. The award was for a less sum than the amount mentioned in that notice, and the defendant school board refused to pay the plaintiff's costs. It was contended on behalf of the landowner that the offer in the notice as to a jury was cancelled by the subsequent arbitration proceedings, and that a new offer should have been given. Ridley, J., however, decided against this view, and held that the plaintiff could not recover, as the offer in the notice was perfectly valid.

In Foster v. The Mayor, &c., of Sheffield, 72 L. T. 549, it was held that the plaintiff's costs of an arbitration must be paid by the defendant corporation, although a less sum was awarded to him for his land than had been offered to him before the arbitration. This case is of considerable importance to local authorities, for it raises considerable doubt as to whether a sub-committee appointed to look after an improvement can make a valid offer without the sanction of the council. The town clerk had made an offer on the instructions of certain members of the sub-committee, it was refused, and then it was withdrawn by the sub-committee. The town council subsequently latified the proceedings of the committee. The court appears to have held that the withdrawal prevented the offer operating so as to deprive the plaintiff of his costs, and from this it would seem that an offer made and withdrawn is not a valid offer, but that it should be left open. This appears scarcely correct, for a claimant might put the promoters to considerable expense in preparing their case, and then accept the arount at the last moment. He might even accept it during the hearing, if it appeared that the evidence was going against his case. This may be the law, but it seems rather hard on promoters, who frequently offer more than they believe to be the value of the property, because if accepted they know that they wil be saved their own costs of the hearing, which in any case they will have to pay.

Another technicality crops up as to the taking up of the award. Section 35 provides that this is to be done by the promoters, who, of course, pay the arbitrator's fees on so doing. If the sum awarded is not greater than the amount offered, the promoters can recover half these fees from the landowner. In Earl of Shrewsbury v. Wirral Railways Committee, [1895] 2 Ch. 812, the landowner did not wait for the promoters to take up the award, but took it up himself, paying the umpire's fees. The amount awarded was such as to entitle him to his costs of the arbitra

tion, but the Court of Appeal, affirming Romer, J., held that he could not recover the umpire's fees, on the ground that he had not followed the provisions of the statute and allowed the promoters themselves to take up the award.

When the compensation is to be settled by two justices, as it must be when the amount claimed is under fifty pounds, these technical questions fortunately do not arise, as section 24 of the Lands Clauses Act, 1845, provides that the costs of the inquiry shall be in the discretion of the justices, who will thus have power even to award costs to the promoters, although in general, we presume, they would follow the principle contained in the other sections. The justices have not only this discretion, but they are also required to settle the amount. They cannot, however, issue any process to enable the parties to recover the amount so found. Their finding is not an order or judgment, it is merely an award as to the amount, and the proper method of recovering the compensation and costs is by action, which may usually be brought in the county court. (See Reg. v. Edwards, 49 J. P. 117.)-Justice of the Peace.

THE LIABILITY OF A LANDLORD FOR ACCIDENTS DUE TO NON-REPAIR. The decision of the Court of Appeal (Lord Russell, L.C.J., A. L. Smith, and Collins, L.JJ.) in Broggi v. Robins (Times, 22nd February) appears to suggest a doubt upon a rule hitherto supposed to be well settlednamely, that where a landlord is under an obligation to the tenant to do repairs, he is liable to a stranger for an accident due to his failure to comply with this obligation. In Broggi v. Robins the plaintiff was the infant child of the tenant of two rooms held under the defendant upon a weekly tenancy. In September, 1896, the floor of one of the rooms was found to be defective, and the defendant's collector promised that whatever was necessary in the way of repairs should be done. A new plank was accordingly put in the floor, but the repair was not sufficient. In February, 1897, the floor gave way, and the plaintiff was thrown into the fire. Previously to these occurrences the landlord had remedied a defect in the fireplace, but it was not then found that the floor was in an unsafe condition. The plaintiff's case was that the landlord had agreed either expressly or impliedly to keep the premises in repair, and that, the accident being due to non-repair, he was llable. The defendant denied that he was under any express or implied obligation to repair, and also that he had had any notice of the want of repair. At the trial Day, J., found against him on all points. There was an express agreement to repair. or, failing that, an agreement to do necessary repairs was to be implied from the usages of weekly tenancies, and the landlord had had notice of the defective state of the premises. He accordingly held the landlord liable, and gave judgment for the plaintiff for £100.

There is no doubt about the rule that prima facie the liability to a stranger for an accident due to the defective state of premises is on the tenant, but under certain circumstances this liability may be shifted to the landlord. The law is concisely stated in the judg ment of Denman and Lopes, JJ., in Nelson v. Liverpool Brewery Co. (2 C. P. D., p. 313): "There are only two ways in which landlords or owners can be made liable, in the case of au injury to a stranger by the defective repair of premises let to a tenant, the occupier and the occupier alone being prima facie liable: first, in the case of a contract by a landlord to do repairs, where the tenant can sue him for not repairing; secondly, in the case of a misfeasance by the landlord, as, for instance, where he lets premises in a ruinous condition. In either of these cases we think an action would lie against the owner." The first proposition depends on the decision of the Common Pleas in 1794 in Payne v. Rogers (2 H. Bl. 349). The plaintiff had sustained injury by his leg slipping through a hole in the pavement