(495.)

MACALPINE & CO. v. CALDER & CO.

[FEBRUARY 28TH, 1893.]

(For a previous stage of this case, see p. 72, ante.) Arbitration-Reference of all Matters-Inspection of Premises-Jurisdiction to Order-Arbitration Act, 1889, Sched. 1 (ƒ)—O. 36, r. 50.

Decision of Divisional Court affirmed, but on different grounds. In an action for work and labour done and materials supplied to certain premises belonging to the defendants, an order was made by consent referring "all matters in dispute in the action" to an arbitrator.

On the plaintiffs' application an order for inspection of the premises was subsequently made by the Judge in Chambers.

Held, that he had jurisdiction to make such order, but that, as by O. 36, r. 50, the arbitrator had concurrent jurisdiction, the application should have been made first to him.-(T. L. R., C. A., vol. ix., p. 311.)

(496.)

[IN THE COURT OF APPEAL.]

HORNSEY LOCAL BOARD v. DAVIS.

[MARCH 8TH, 1893.]

Local Government-Sewers-Vesting in Local Authority-Private Street, Sewer in-Acceptance by Local Authority of incomplete SewerPublic Health Act, 1875 (38 and 39 l'ict. c. 55), secs. 13, 15, 150.

The owners of a building estate, who were the predecessors in title of the defendant, deposited plans, which were approved by the local authority, shewing a road running down the slope of a hill and crossing the New River at the foot, with a sewer running the whole length of the road and crossing the New River to join another sewer on the farther side. An agreement was made by the New River Company with the estate owners to divert the New River so as to enable the sewer to be laid across the old bed of the stream. In 1885 the sewer was made as far as the New River, where it stopped, the river not having then been diverted; it had no outfall, and was never, in fact, used as a sewer; but the work was from time to time inspected by a servant of the local authority, who authorised the covering in of the various sections, and made reports to the local authority, who never expressed dissatisfaction with the work. Nothing more was done to the sewer, which became out of repair and ruinous; and in 1890 the local authority gave to the frontagers in the road notice, under section 150 of the Public Health

Act, 1875, to sewer the road down to the New River; on their default the local authority themselves constructed a new sewer, which they carried across the bed of the New River and connected with the sewer on the other side, the diversion of the river having been completed during the execution of the works by the local authority. The local authority having sought to charge the frontagers with the expenses of making the new sewer, the question of the amount to be paid by the defendant was referred to arbitration, and in an action on the award the jury found that the local authority had accepted the old sewer as a satisfactory sewer :

Held, that the local authority had power to accept the orignal sewer, although it had no outfall, and was at the time of acceptance incapable of being used as a sewer; and that, the road having once been sewered to the satisfaction of the local authority, the expenses of constructing the new sewer were not chargeable on the frontagers.—(L.R. [1893] 1 Q.B., p. 756.)

(497.)

IN RE A CONTRACT BETWEEN PECK AND THE SCHOOL BOARD FOR LONDON.

[MARCH 16TH, 17TH, 21ST, AND 22ND, 1893.]

Vendor and Purchaser-Form of Conveyance-General Words-Easement-Right of Way-"Reputed to appertain or enjoyed”—Exception from Conveyance--Conveyancing and Law of Property Act, 1881 (44 d 45 Vict. c. 41), s. 6, sub-ss. 1, 2, 4.

Under a contract for the sale of land "with the appurtenances," the purchaser is only entitled to have such general words in his conveyance as he would have been entitled to before the Conveyancing and Law of Property Act, 1881, came into operation; and if the general words implied by sect. 6 of that Act are more extensive than the contract, the vendor is entitled to have them limited accordingly.(L.R. [1893] 2 Ch., p. 315.)

(498.)

LOCK v. PEARCE,

[MARCH 21ST, 1893.]

(For a previous stage of this case, see "Professional Notes," Vol. V., p. 481.)

Lease-Forfeiture-Breach of Covenant-Notice-Conveyancing and Law of Property Act, 1881 (44 & 45 Vict. c. 41), s. 14, sub.-s. 1, 2.

A notice under sect. 14, sub-sect. 1, of the Conveyancing and Law of Property Act, 1881, requiring the lessee to remedy a breach of

covenant, may be good, though it does not require payment of compensation in money.

North London Land Company v. Jacques disapproved.

An application by a lessee under sect. 14, sub-sect. 2, of the same Act must be made in an action commenced by writ, and cannot be made by originating summons.

The decision of North, J., affirmed.

This was an appeal from a decision of Mr. Justice North.

The facts are fully given in the previous report. The following short statement will be sufficient for the purpose of the present report.

The plaintiffs were the owners as mortgagor and mortagee of seven leasehold houses in South Tottenham let to weekly tenants. The defendant, Arthur Pearce, was the lessor of the premises.

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On the 2nd of June, 1891, the defendant, by his solicitors, served written notices on the plaintiffs, by leaving them at the several houses, that they had not sufficiently repaired the houses in pursuance of the covenants contained in the leases thereof, and requiring them to remedy the breaches of covenants by doing the works specified in the schedule annexed to the notices. The notices concluded as follows: "And as such solicitors and agents as aforesaid, we also require you "to forthwith pay to the said Arthur Pearce the sum of £2 2s. for the expenses which have been incurred by the said Arthur Pearce for surveyor's fees and solicitor's charges by reason of such breaches of "covenants as aforesaid; and we hereby give you further notice that "if you make default in remedying such breaches of covenants in manner above mentioned, or in making the compensation hereby required, the said A. Pearce will enter and take possession of the "said messuage dwelling-house and premises, but without prejudice "to any other remedies which he may have by reason of such default." A schedule of work to be done was appended to the notices.

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After the expiration of three months from the date of the notices, the defendant commenced actions in the Edmonton County Court against the tenants in occupation for the recovery of the houses, to which the present plaintiffs were not made parties, although an opportunity was offered to them of being added as defendants; and on the 25th of November, 1891, the county court judge made orders on the tenants for the delivery of possession to the defendant. On the same day, the plaintiffs took out an originating summons in the Chancery Division asking a declaration that no forfeiture had taken place: or, in the alternative, relief against the defendant's right of re-entry and forfeiture upon such terms as the Court should think fit; and an injunction to restrain the defendant from proceeding on the judgments in the county court to take possession. The summons was returnable on the 10th of December, 1891. On the 9th of December, the defendant obtained possession of the houses under the county court judgments.

Mr. Justice NORTH held that the notices on which the proceedings in the county court were carried on were good notices under sect. 14, sub.-sect. 1, of the Conveyancing and Law of Property Act, 1881, and

that the judgments were valid. And he decided that on the merits the plaintiffs had shewn no grounds for relief under the Act.

The plaintiffs appealed from this decision.

Lord ESHER, M.R.-I am of opinion that this appeal must be dismissed, and that every point which has been raised on the part of the appellants must be decided against them.

The first point is as to the jurisdiction of Mr. Justice North to enter upon the question at all, and that raises this point, whether the application could be made on an originating summons. Now, what the Judge was asked for was relief under sub-sect. 2 of sect. 14 of the Conveyancing Act, 1881. Under what circumstances can he entertain that question? He can only entertain it where a lessor is proceeding, by action or otherwise, to enforce such a right of "re-entry or forfeiture." The first impression, therefore, is that it can only be brought before him whilst the lessor is proceeding to enforce the right of re-entry or forfeiture. If the re-entry has been made, then it is too late; he could not bring himself within the terms of that section. But when the lessor is proceeding (I assume that the entry is not complete), the lessee may "in the lessor's action, if any, "or in any action brought by himself, apply to the Court for relief." The action of ejectment brought by Mr. Pearce, the lessor, was brought in the county court, and the lessee therefore could not apply to the High Court in the lessor's action, because that action was in the county court. Therefore he was left by the circumstances of his case to make his application in an action by himself. He did not, however, bring an action; he applied to the Court on an originating summons, without there being any action at all. An originating summons is not an action; therefore there was no action. The originating summons cannot be said to be a summons taken out in an action under these circumstances, and Mr. Justice North had no jurisdiction to hear the case; and, as I gather, that was Mr. Justice North's own opinion; therefore, so far, we are not differing from him.

But, supposing that there was jurisdiction, then the question is, under what circumstances can this relief be asked for? It can only be asked for where the lessor is proceeding to enforce a forfeiture. Here there had been a judgment in the county court, but possession was not taken when the summons was taken out; therefore he was asking for relief against the forfeiture. It seems to me that under these circumstances he cannot say that there is no forfeiture. His asking for relief against forfeiture is an admission that there is a forfeiture. Therefore, if Mr. Justice North had had jurisdiction in this case, he could not have had jurisdiction to say that the judgment of the county court was not a valid judgment. He could not sit by way of appeal against the county court judge's judgment. He must take the fact as established that there is a judgment and an eject

ment.

But there is another point relied on by the lessees which we must consider. They say that if the Court could inquire whether there was properly a forfeiture-that is, whether the judgment in the county

court action was a right one-they can show that the judgment was wrong, because the notice mentioned in sect. 14, sub-sect. 1, was not given in other words, that the notice which was given was not a valid one. Now in this notice the lessor did complain of a breach of the covenant to repair, which is capable of a remedy. Where there is a breach which is capable of a remedy, this section requires that the lessor should in the notice require the lessee to remedy that breach; and he cannot, if it is a breach which can be remedied, pass that by, and not give notice that he requires it to be remedied. When asking for compensation in money for a breach which can be remedied, he is bound in the notice to require the lessee to remedy the breach. In the present case the lessor did require the lessee to remedy the breach, which was a breach capable of being remedied. Then there comes

the question whether in any case he is to require the lessee to make compensation in money for the breach. If he is bound, where the breach is capable of being remedied by the lessee, to require him to remedy the breach, it is impossible to suppose, or to hold, that he must ask for compensation in money as well as for the breach to be remedied. It is not compensation for the expenses of doing the repairs; it must be for something more than that. This is shewn by the rest of the section for if "the lessee fails, within a reasonable "time thereafter, to remedy the breach, if it is capable of remedy, "and to make reasonable compensation in money, to the satisfaction "of the lessor, for the breach," the forfeiture will be enforceable. It has been strongly argued that " and " in this sentence ought to be read "or." I see no ground upon which the Court can properly read "and" here as "or"; although, of course, if there is a breach, the lessor is entitled to compensation in money instead of allowing the lessee to remedy the breach. Therefore it seems to me that the meaning of the section is that the breach must be remedied if it can be, and there must be compensation besides that, if there is anything for which to compensate. I go further, and say that the lessor need not, if he does not want any compensation, ask for it. If he does not want compensation, why should he ask for what he does not want? The effect of his not asking for it, to my mind, is that if he obtains an order in an action of ejectment, requiring the lessee to remedy the breach, he cannot subsequently ask for any further compensation. That seems to me the proper meaning of the section. If the case before Vice-Chancellor Bacon (North London Land Company v. Jacques) decides otherwise, I do not agree with it. In the case before Lord Justice Bowen (Greenfield v. Hanson), I am sure he did nothing but what any Judge acting upon a well-known rule, and sitting in a Court of co-ordinate jurisdiction, feels bound to do that is, he adopted what was held to be the construction of the statute; but when I come to construe the language of the statute, I differ from Vice-Chancellor Bacon, and the case in the Queen's Bench Division carries the matter no further. When we are in this Court, we are not bound by it; and I say that, notwithstanding any such decision, the construction of that section is what I