that an action is maintainable even if the tender be made after impounding. The cases as to the money counts are distinguishable. (He was then stopped.)

LUSH, J.-I am of opinion that the rule must be made absolute. The first count is in the ordinary form for an excessive distress. The count is good on the face of it. The evidence was that the plaintiff was out of town, that on his return he found a man in possession, with a warrant for 187. and costs. Goods of the value of 1007. had been distrained. His solicitor, Mr. Evans, offered to pay the rent due (91.) and expenses. The bailiff refused

this, and he then gave a personal undertaing for the whole amount, and the bailiff withdrew. The property of the husband had been assigned to trustees for the wife, one of whom lived in the house. The plaintiff was the tenant of the house. The contention was that there was no evidence to go to the jury to support the first count, and it was argued that inasmuch as the plaintiff only had the enjoyment of the goods by the consent of the trustees that he could not maintain the action. I think he had quite a sufficient right of property. His right of possession would have been sufficient to have maintained an action against the distrainer if he had taken away the goods, and is, I think, enough in the present case. I should say that upon this declaration the charge to the jury should be that they should find for the plaintiff for the excess which he was obliged to pay to get rid of the distress, plus such sum as the jury might find for damages for the inconvenience which the plaintiff had been put to by the interference with his enjoyment of the goods. In Glyn v. Thomas (4) there was no count for excessive distress, and the count in that case did not allege that the quantity of the goods taken was excessive with regard to the sum distrained for, and that is a ground mentioned and relied on in the judgment. Coleridge, J., in delivering the judgment of the Court, expressly says that it was not a case of excessive distress, and that it was simply the case of a landlord distraining, not excessively, for rent in arrear and holding possession by virtue of that distress. The payment there was volun

tary, and the plaintiff should have taken proper steps to recover his goods. That case is distinguished from many cases in which money paid under protest may be recovered back, because in such cases there must be an unlawful act on the part of the defendant, and a necessity on the part of the plaintiff, by reason of there being in that case no unlawful act on the part of the defendant. Applying this principle to this case, there is here an unlawful act in seizing too large an amount of goods, so as to constitute an excessive seizure, and the plaintiff then pays after tender of the amount due. This case is then brought within that part of the judgment distinguishing it from the case itself of Glyn v. Thomas (4).

HANNEN, J.-I am of the same opinion. The question raised was as to ownership. I think the objection was not sustainable. The plaintiff in my opinion had sufficient interest in and enjoyment of the goods to bring this action, and for that reason, and on the authority of Loring v. Warburton (9) and Johnson v. Upham (10), I think that this rule must be made absolute.

Rule absolute.

Attorneys-T. H. Williams, agent for A. T. H. Evans, Manchester, for plaintiff; E. C. Griffith, agent for R. Brown, Manchester, for defendant.

(In the Second Division of the Court.) 1871. CORE (appellant) v. JAMES (reNov. 15. f pondent).

Bread; Adulteration of, by Alum-Conviction-Guilty Knowledge-6 & 7 Will. 4. c. 37. s. 8.

A person cannot be convicted under s. 8 of 6 & 7 Will. 4. c. 37, for using prohibited mixtures or ingredients in the mak ing of bread for sale, unless there be knowledge either in himself or in the person employed by him, of the presence of the mixture ingredient.

[For report of the above case, see 41 Law J. Rep. (N.S.) M.C. 19.]

[IN THE EXCHEQUER CHAMBER.] (Error from the Court of Queen's Bench.)

1871. Nov. 28.

THE QUEEN ON THE PROSECUTION
OF FLIGHT v. THE VESTRY OF
ST. LUKE'S, CHELSEA.

Lands Clauses Act, 1845, 8 Vict. c. 18Special Act incorporating Lands Clauses Act-Right to Compensation-Absence of Express Enactment.

Where an Act of Parliament, with compulsory powers, incorporates the whole of the Lands Clauses Act, a right to compensation is, without any other enactment, conferred upon the persons interested in lands injuriously affected by the exercise of such powers.

By the Chelsea Improvement Act, 8 & 9 Vict. c. cxliii., the Lands Clauses Act, 1845, is incorporated in these words: "So much of the Lands Clauses Consolidation Act, 1845, as is applicable to, and is not modified by this Act, or as is not inconsistent with the provisions thereof, shall apply to the improvements by this Act authorized to be made, and shall be read as forming part of this Act." By sections 124 and 127, compensation is expressly given where projections, made before the passing of the Act, are ordered to be removed, and where a house taken down to be rebuilt is ordered to be set back to the line of street. By section 104, power is given to alter the level of streets, but there is no provision as to compensation:-Held, notwithstanding the absence of any such provision, that the lessee of a house injuriously affected by the raising of the level of a street under the powers of section 104, was entitled to compensation.

Error from a decision of the Queen's Bench reported 40 Law J. Rep. (N.S.) Q.B. 305.

The prosecutor was lessee of a house and shop and premises, and the defendants in the exercise of the compulsory powers vested in them by the Chelsea Improvement Act, 1845, 8 & 9 Vict. c. cxliii., and the Metropolis Local Management Acts, 1855 and 1862, caused the level of the street in front of the prosecutor's shop to be raised, so as NEW SERIES, 41.—Q.B.

to impede the access to the premises and injuriously affect them. The question was whether the prosecutor was entitled to compensation by virtue of the Lands Clauses Act, 1845, which was incorporated with the Local Act. The sections of the different Acts are fully set out in the report of the case in the Court below, and are sufficiently referred to in the judg ment in the present case to make it unnecessary to repeat them.

SirJ.Karslake (Raymond with him), for the defendants.

Philbrick (Atkinson with him), for the prosecutor, was not heard.

KELLY, C.B.-I am of opinion that the judgment of the Court below should be affirmed. The question raised in the case is, whether the plaintiff is entitled to compensation by reason of his house having been injuriously affected by the fact that the vestry under the powers of their special Act have raised the level of the street so as to impede the access to his premises. The question depends entirely upon the construction of section 83 of the Chelsea Improvement Act, 1845, or rather upon the extent to which it incorporates the Lands Clauses Act. By section 104 of the Chelsea Act "it shall be lawful for the commissioners at any time, and from time to time, subject, nevertheless, to the provisions in this Act contained, to alter the level of any street now or hereafter to be formed, laid out, or made in such manner and form as the commissioners may think expedient." Now it is quite true that neither in this section nor any other part of the Special Act is there any express provision for injury caused in the exercise of the power previously mentioned; but by section 83 SO much of the Lands Clauses Act, 1845, as is applicable to, and is not modified by, this Act, or as is not inconsistent with the provisions hereof, shall be held to apply to the improvements by this Act. authorised to be made, and shall be read and construed as forming part of this Act." Now there is nothing in the special Act which expressly or by implication takes away any right to compensation given by the Lands Clauses Act, and we must look to see whether the provisions of that

M

66

Act are applicable to this case. By section 68 of the Lands Clauses Act, "if any party should be entitled to any compensation in respect of any lands or any interest therein which shall have been taken for or injuriously affected by the execution of the works . . . . . the compensation is to be settled in the manner specified. Now it has been urged that the Lands Clauses Act does not expressly give compensation for lands injuriously affected, and that there is therefore no express provision applicable to the present case. I forbear to express any opinion upon the question whether if section 68 only had been incorporated in the Special Act there would have been a right to compensation in respect of this injury, for I am clearly of opinion that there are numerous provisions in it, especially sections 22 and 23, which do expressly and necessarily confer such a right. Again, if we look at the earlier sections, beginning at section 18, the promoters are to give notices expressing their willingness to make compensation for damage caused by the execution of their works; and in section 22, and in other sections, there are regulations respecting compensation for lands injuri ously affected, as well as for paying the value of lands taken by the promoters. I think that a liberal construction ought to be put on these words, particularly when we have to deal with an injury so serious as that caused by raising the level of a street.

Then it has been said that in sections 124 and 127 of the Special Act, there are express provisions for compensation in specified cases, so that upon the maxim expressio unius exclusio alterius, the claim of the prosecutor is not provided for. But, as was said in the Court below, there might have been some doubt as to whether the cases in these sections came within the words of the Lands Clauses Act, which would induce the draughtsman to make express provision for them. As to the other objection, that section 83 only incorporates the Lands Clauses Act with reference to such improvements as involve the taking of land, I think that for the reason given in the Court below it cannot be maintained. The prosecutor is there

fore entitled to succeed, and the judgment must be affirmed.

WILLES, J.-I am of the same opinion. I would refer to the case of Leader v. Moxon (1), where the commissioners under an Act of Parliament for paving Wapping Street were empowered to pave and alter it as they should think fit. They raised the level of the footway in front of the plaintiff's house; and in an action which he brought against them, the Court held that the discretion of the commissioners was not arbitrary, but must be limited by reason and law, and that had Parliament intended to demolish or render useless some houses for the benefit or ornament of the rest, it would have given express powers for that purpose, and given an equivalent for the loss that individuals might sustain thereby. It seems to me that the same observations apply to the present case.

CHANNELL, B.; PIGOTT, B.; and CLEASBY, B., concurred.

Metropolis Local Management Acts 18 & 19 Vict. c. 120. s. 105; 25 & 26 Vict. c. 102. s. 77-Highway-New StreetPaving-Liability of Owners.

On the 1st of January, 1856, when the Metropolis Local Management Act passed, there was an ancient highway and public carriage way in the parish of L., within the district of the Plumstead Board of Works, which from time out of mind had been repaired by the parish. At that time there were two houses adjoining the highway, but distinct from one another. Between the 1st

(1) 2 W. Bl. 924.

of January, 1856, and the 7th of August, 1862, when the Metropolis Local Management Amendment Act, 1862, passed, twenty one more houses were built along one side of the highway, some being in a block, and some detached. Between 1862 and the 23rd of June, 1869, ninety additional houses were built, of which fifty-six were built on the opposite side. Roads were made intersecting the highway, the said roads being private, and the soil thereof being in the appellant, N. The appellant, P., was the owner of some of the houses. The respondents, the said Board of Works, having determined that the highway should be made into a hard road to an extent greater than it had been before, and that pathways should be formed, apportioned the amount which was to be paid by N., in respect of the soil of the private roads, and by P. in respect of the houses of which he was the owner :— -Held, that the highway was a "new street," within the Metropolis Local Management Acts, and that the respondents had a right to throw upon the appellants the cost, apportioned upon them, of the work to be done.

balance due to him on the executorship account, since the bank might have sued him in his own him in his own name if he had overdrawn the account due to him as executor, and the only effect of opening the account as executor was to give notice that there might be equitable rights as against the person opening the account. In the present case there was no suggestion of any equity against the defendant, but it appeared, on the contrary, that he was beneficially interested in the debt which he proposed to set off.

The plaintiff, as trustee under the Bankruptcy Act, 1869, of K. & Co., bankers, sued the defendant for money lent, the balance due upon his private account. The defendant had another account with the bank as executor of A., and at the time of the bankruptcy the balance on this account was in his favour. Under the will of A. the defendant was both executor and residuary legatee, and at the time of the bankruptcy he had assets in his hands, exclusive of the balance in the bank, more than sufficient to provide for all bequests which remained unpaid, and to leave a balance due to him as residuary legatee: — Held, that he was entitled to set off the

At the trial before Kelly, C.B., at the Norfolk Spring Assizes, 1871, the facts were agreed upon, and it appeared that the action was brought by the plaintiff, as the trustee in bankruptcy of Harvey & Hudsons' Bank, to recover money due from the defendant as a customer of the bank. The defendant had three accounts in the book; first, his private account, which, at the time of the bankruptcy, was overdrawn to the amount of 2511. 2s. 7d.; secondly, an account called his "farm account," which was overdrawn to the amount of 2051. 2s. 6d.; and a third account called "the Wotton account," upon which the bank owed him 170l. 14s. 2d., so that upon the whole of the three accounts there was a balance against him of 2851. 10s. 11d. In December, 1869, a lady named Alexander, who was a customer of the bank, died, having by her will appointed the defendant executor and residuary legatee. At the time of her death there was a balance in the bank to her credit of 654l. 28. 9d. In January, 1870, the defendant took the probate to the bank, and the balance standing in the name of Mrs. Alexander was transferred to an account headed,

"The executor of the late Mrs. Elizabeth Alexander in account with Messrs. Harvey & Hudsons." He paid several sums into this account, and also drew upon it, and at the time of the bankruptcy there was due from the bank upon this account a sum of 5471. 48. 4d. Mrs. Alexander's will was proved in June, 1870, the personal estate being sworn under 6,000l. It contained various pecuniary legacies, and, amongst others, a grant of an annuity of 1007. a year. At the time of the adjudication in bankruptcy, which was in July, 1870, the defendant had paid certain of the legacies, and after deducting from the assets a sum of 800l. which remained to be invested under trusts in the will, and setting aside a sufficient sum of money to provide for the annuity of 1001., the sum of 1,9007. was due to him as residuary legatee. The defendant now proposed to set off the amount due from the bank upon the executorship account against the debt, in respect of which the action was brought.

A verdict was taken for the plaintiff for 2921. 17s. 11d., with leave to the defendant to move to enter a verdict in his favour, the Court to be at liberty to draw inferences of fact, if necessary.

O'Malley and Merewether shewed cause. -The defendant cannot in this action set off against his private debt the amount due to him in his character of executor. At the time of the bankruptcy, the trusts of the will had not been executed, and the bank and their representatives had notice that the balance due to Mrs. Alexander's estate was trust money, and could not be, without a breach of trust, appropriated to satisfy the private debt of a customer of the bank. No doubt it will be urged that, after paying all claims under the will, there would be a surplus due to the defendant as residuary legatee. But this fact can only be ascertained by taking the accounts of the estate, and all that the bank can know is that the whole of the fund in their hands is subject to a trust. In Bishop v. Church (1), Lord Hardwicke refused to allow an executrix to set off a debt due to the testator against her private debt, although she was also residuary legatee.

(1) 3 Atk. 691.

[BLACKBURN, J.-There the debt which it was proposed to set off was due to the testator, here it is due to the defendant.]

In Freeman v. Lomas (2), an executor and trustee of a legacy, who was also residuary legatee, and had become a creditor of the husband and administrator of a deceased legatee, was not allowed to set off his debt against the legacy to which the husband (having survived his wife, the legatee), was, as such administrator, entitled, on the ground that, except under special circumstances, courts of equity have never allowed cross demands existing in different rights to be set the one against the other.

[BLACKBURN, J.-There was no set-off at law in that case, here there is a set-off at law. The bank had no equity.]

In Ex parte Kingston (3), where a county treasurer had a private account and a separate account headed "Police account" in the same bank, it was held that the bank could not consolidate the accounts as against the county authorities, having had notice that the money standing in "the police account" was trust money. It is true that in Pedder v. Preston, Mayor, Sc., of (4), it was held that a municipal corporation was entitled to set off against its bank a balance due to the corporation as local board, but that was on the ground that the right of the corporation capacities was identical, and that there was no ground for equitable interference on behalf of third parties. They cited Elliott v. Kemp (5) and Farr v. Newman (6).

Field and Bulwer in support of the rule. The defendant is entitled in this action to set off the amount due under the executorship account. The set-off is not merely an equitable one, but may be claimed at law under the statutes of Geo. 2. The defendant might have sued the bank in respect of the executorship account in his private capacity, and was