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that an action is maintainable even if the tary, and the plaintiff should have taken tender be made after impounding. The proper steps to recover his goods. That cases as to the money counts are distin- case is distinguished from many cases in guishable. (He was then stopped.) which money paid under protest may be

recovered back, because in such cases there LUSH, J.-I am of opinion that the rule must be an unlawful act on the part of must be made absolute. The first count the defendant, and a necessity on the part is in the ordinary form for an excessive of the plaintiff, by reason of there being in distress. The count is good on the face that case no unlawful act on the part of of it. The evidence was that the plaintiff the defendant. Applying this principle to was out of town, that on his return he this case, there is here an unlawful act in found a man in possession, with a warrant seizing too large an amount of goods, so for 181. and costs. Goods of the value of as to constitute an excessive seizure, and 1001. had been distrained. His solicitor, the plaintiff then pays after tender of the Mr. Evans, offered to pay the rent due amount due. This case is then brought (91.) and expenses. The bailiff refused

within that part of the judgment distinthis, and he then gave a personal under- guishing it from the caso itself of Glyn v. taing for the whole amount, and the bailiff

Thomas (4). withdrew. The property of the husband HANNEN, J.-I am of the same opinion. had been assigned to trustees for the The question raised was as to ownership. wife, one of whom lived in the house. The

I think the objection was not sustainable. plaintiff was the tenant of the house. The

The plaintiff' in my opinion had sufficient contention was that there was no evidence interest in and enjoyment of the goods to to go to the jury to support the first count, bring this action, and for that reason, and and it was argued that inasmuch as the on the authority of Loring v. Warburton plaintiff only had the enjoyment of the (9) and Johnson v. Upham (10), I think goods by the consent of the trustees that that this rule must be made absolute. he could not maintain the action. I think

Rule absolute. he had quite a sufficient right of property. His right of possession would have been Attorneys--T. H. Williams, agent for A. T. H. sufficient to have maintained an action

Evans, Manchester, for plaintiff; E. C. Griffith,

agent for R. Brown, Manchester, for defendant. against the distrainer if he had taken away the goods, and is, I think, enough in the present case. I should


upon this declaration the charge to the jury should be that they should find for the plaintiff for the excess which he was (In the Second Division of the Court.) obliged to pay to get rid of the distress

1871. CORE (appellant) v. JAMES (replus such sum as the jury might find for

Nov. 15.)

pondent). damages for the inconvenience which the plaintiff had been put to by the interfer- Bread ; Adulteration of, by AlumConence with his enjoyment of the goods. In

victionGuilty Knowledge—6 8. 7 Will. Glyn v. Thomas (4) there was no count

4. c. 37. s. 8. for excessive distress, and the count in A


cannot be convicted under s. 8 that case did not allege that the quantity of 6 8 7 Will. 4. c. 37, for using proof the goods taken was excessive with

hibited mixtures or ingredients in the makregard to the sum distrained for, and that ing of bread for sale, unless there be knowis a ground mentioned and relied on in the ledige either in himself or in the person judgment. Coleridge, J., in delivering the employed by him, of the presence of the judgment of the Court, expressly says that

micture : ingredient. it was not a case of excessive distress, and that it was simply the case of a landlord dis- [For 11 « report of the above case, see training, not excessively, for rent in arrear 41 Law J. Rep. (n.s.) M.C. 19.] and holding possession by virtue of that distress. The payment there was volun.


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[IN THE EXCHEQUER CHAMBER.] to impede the access to the premises and (Error from the Court of Queen's Bench.)

injuriously affect them. The question was

whether the prosecutor was entitled to THE QUEEN ON THE PROSECUTION 1871.

compensation by virtue of the Lands

Clauses Act, 1845, which was incorporated Nov. 28. ST. LUKE'S, CHELSEA.

with the Local Act. The sections of the

different Acts are fully set out in the reLands Clauses Act, 1845, 8 Vict. c. 18–

port of the case in the Court below, and Special Act incorporating Lands Clauses

are sufficiently referred to in the judgAct-Right to Compensation--Absence of ment in the present case to make it unExpress Enactment.

necessary to repeat them.

Sir J. Karslake (Raymond with him), for Where an Act of Parliament, with com

the defendants. pulsory powers, incorporates the whole of the

Philbrick (Atkinson with him), for the Lanıls Clauses Act, a right to compensa- prosecutor, was not heard. tion is, without any other enactment, conferred upon the persons interested in lands

KELLY, C.B.-I am of opinion that injurionisly affected by the exercise of such

the judgment of the Court below should powers. By the Chelsea Improvement Act, 8 & 9

be affirmed. The question raised in the case is, whether the plaintiff

' is entitled to l'ict. c. cxlii., the Lands Clauses Act, 1845, is incorporated in these words : So much of having been injuriously affected by the

compensation by reason of his house the Lands Clauses Consolilation Act, 1845,

fact that the vestry under the powers of as is applicable to, and is not modified by

their special Act have raised the level of this Act, or as is not inconsistent with the

the street so as to impede the access provisims thereof, shall apply to the im

to his premises. The question depends provements by this Act authorized to be made, and shall be read as forming part of 83 of the Chelsea Improvement Act, 1845,

entirely upon the construction of section this Act.By sections 124 and 127, com.

or rather upou the extent to which it inpensation is expressly given where projec- corporates the Lands Clauses Act. By tions, made before the passing of the Act,

section 104 of the Chelsea Act "it shall are ordered to be removed, and where a be lawful for the commissioners at any house taken down to be rebuilt is ordered

time, and from time to time, subject, to be set back to the line of street. By

nevertheless, to the provisions in this Act section 104, power is given to alter the

contained, to alter the level of any street level of streets, but there is no provision as

now or hereafter to be formed, laid out, or to compensation :-Held, notwithstanding

made in such manner and form as the com. the absence of any such provision, that the missioners may think expedient.” Now lessee of a house injuriously atjected by it is quite true that neither in this section the raising of the level of a street under the

nor any other part of the Special Act is powers of section 104, was entitled to com

there any express provision for injury pensation,

caused in the exercise of the power pre

viously mentioned ; but by section 83 * so Error from a decision of the Queen's much of the Lands Clauses Act, 1845, as Bench reported 40 Law J. Rep. (n.s.) is applicable to, and is not modified by, Q.B. 305.

this Act, or as is not inconsistent with The prosecutor was lessee of a house the provisions hereof, shall be held to and shop and premises, and the de- apply to the improvements by this Act fendants in the exercise of the com- authorised to be made, and shall be read pulsory powers vested in them by the and coustrued as forming part of this Act.” Chelsea Improvement Act, 1845, 8 & Now there is nothing in the special Act 9 Vict. c. cxliii., and the Metropolis which expressly or by implication takes Local Management Acts, 1855 and 1862, away any right to compensation given caused the level of the street in front of by the Lands Clauses Act, and we must the prosecutor's shop to be raised, so as look to see whether the provisions of that New Series, 41.-Q.B.


SO case.


Act are applicable to this case. By fore entitled to succeed, and the judgment section 68 of the Lands Clauses Act, “ if must be affirmed. any party should be entitled to any com- Willes, J.-I am of the same opinion. pensation in respect of any lands or any I would refer to the case of Leader v. interest therein which shall have been Moxon (1), where the commissioners taken for or injuriously affected by the under an Act of Parliament for paving execution of the works .

the com- Wapping Street were empowered to pave pensation is to be settled in the manner and alter it as they should think fit. specified. Now it has been urged that They raised the level of the footway in the Lands Clauses Act does not expressly front of the plaintiff's house; and in an give compensation for lands injuriously action which he brought against them, affected, and that there is therefore no the Court held that the discretion of the express provision applicable to the present commissioners was not arbitrary, but must

I forbear to express any opinion be limited by reason and law, and that upon the question whether if section 68 had Parliament intended to demolish or only had been incorporated in the Special render useless some houses for the benefit Act there would have been a right to or ornament of the rest, it would have compensation in respect of this injury, given express powers for that purpose, for I am clearly of opinion that there and given an equivalent for the loss that are numerous provisions in it, especially individuals might sustain thereby. sections 22 and 23, which do expressly seems to me that the same observations and necessarily confer such a right. apply to the present case. Again, if we look at the earlier sec- CHANNELL, B.; PIGOTT, B.; and CLEABY,

Pigott tions, beginning at section 18, the pro- B., concurred. moters are to give notices expressing

Judgment affirmed. their willingness to make compensation for damage caused by the execution of their works; and in section 2:2, and Attorneys Batt & Son, for the prosecutor; in other sections, there are regulations Pemberton & Reeves, for defendants. respecting compensation for lands injuriously affected, as well as for paying the value of lands taken by the promoters. I think that a literal construction ought to be put on these words, particularly when we have to deal with an injury so

POUND (appellant) v. THE BOARD serious as that caused by raising the level of a street.

1871. Then it has been said that in sections Nov. 11.

DISTRICT (respondents).

NORTHBROOK (appellant) v. THE 124 and 127 of the Special Act, there are

SAME (respondents). express provisions for compensation in specified cases, so that upon the maxim Metropolis Local Management Acts expressio unius exclusio alterius, the claim of 18 & 19 Vict. c. 120. s. 105 ; 25 & 26 Vict. the prosecutor is not provided for. But, c. 102. s. 77Highway New Street as was said in the Court below, there might Paving-Liability of owners. . have been some doubt as to whether the

On the 1st of January, 1856, when the cases in these sections came within the

Metropolis Local Management Act passed, words of the Lands Clauses Act, which

there was an ancient highway and public would induce the draughtsman to make

carriage way in the parish of L., within the express provision for them. As to the

district of the Plumstead Board of Works, other objection, that section 83 only

which from time out of mind had been incorporates the Lands Clauses Act with reference to such improvements as involve repaired by the parish. At that time there

were two houses adjoining the highway, but the taking of land, I think that for the

distinct from one another. Between the 1st reason given in the Court below it cannot be maintained. The prosecutor is there

(1) 2 W. Bl. 924.




of January, 1856, and the 7th of August, balance due to him on the executorship 1862, when the Metropolis Local Manage account, since the bank might have sued ment Amendment Act, 1862, passed, twenty- him in his own name if he had overme more houses were built along one-side of drawn the account due to him as executor, the highway, some being in a block, and and the only effect of opening the account some detached. Between 1862 and the 23rd as executor was to give notice that there of June, 1869, ninety additional houses were might be equitable rights as against the built, of which fifty-six were built on the op- person opening the account.

In the present posite side. Roads were made intersecting case there was no suggestion of any equity the highway, the said roads being private, against the defendant, but it appeared, on and the soil thereof being in the appellant, the contrary, that he was beneficially inN. The appellant, P., was the owner of terested in the debt which he proposed to some of the houses. The respondents, the set off said Board of Works, having determined that the highway should be made into a hard Declaration by the plaintiff as trustee road to an extent greater than it had been of the estate and effects of R. A. Kerri. before, and that pathways should be formed, son and R. Kerrison, bankrupts, for money apportioned the amount which was to be lent by the bankrupts to the defendant, paid by N., in respect of the soil of the money paid, interest, and money due upon private roads, and by P. in respect of the

accounts stated. houses of which he was the owner :

Pleas-first, never indebted; second, that the highway was a new street,within payment; third, a set-off for money lent, the Metropolis Local Management Acts, and money had and received, and money due that the respondents had a right to throw upon accounts stated between the bank. upon the appellants the cost, apportioned rupts and the defendant. upon them, of the work to be done.

Joinder of issue.

At the trial before Kelly, C.B., at the [For the report of the above case, see Norfolk Spring Assizes, 1871, the facts 41 Law J. Rep. (N.s.) M.C. 51.]

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. Bankruptcy-Set-off - Mutual CreditErecutor - Notice of Equities.

2s. 7d. ; secondiy, an account called his " farm account,

which was overdrawn The plaintiff, as trustee under the Bank- to the amount of 2051. 2s. 6d.; and a ruptcy Act, 1869, of K. & Co., bankers, third account called “the Wotton acsued the defendant for money lent, the count," upon which the bank owed him balance due upon his private account. The 1701. 14s. 2d., so that upon the whole of defendant had another account with the the three accounts there was a balance bank as executor of A., and at the time against him of 2851. 10s. 11d. In Deof the bankruptcy the balance on this ac- cember, 1869, a lady named Alexander, who count was in his farour. Under the will was a customer of the bank, died, having of A. the defendant was both executor and by her will appointed the defendant exeresiluary legatee, and at the time of the cutor and residuary legatee. At the time bankruptcy he had assets in his hands, ex- of her death there was a balance in the clusive of the balance in the bank, more bank to her credit of 6541. 28. 9d. In than sufficient to provide for all bequests January, 1870, the defendant took the which remained unpaid, and to leave a probate to the bank, and the balance balance due to him as residuary legatee: standing in the name of Mrs. Alexander - Held, that he was entitled to set off the was transferred to an account headed,

Nov? 3.2.}


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“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 6,0001. It contained various pecuniary legacies, and, amongst others, a grant of an annuity of 1001. 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 8001. 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 1,9001. 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 eqnity.]

In Ex parle Kingston (6), 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 that the right of the corporation in both capacities was identical, and that there was no ground for equitable interference on behalf of third parties. They cited Elliott v. Kemp (5) and Furr v. Newman (6).

Field and Bilver 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


(2) 9 Hare 109; s. (. Law J. Rep. (N.s.) Chanc. 564.

(3) 40 Law J. Rep. (N.s.) Bankr. 91.

(4) 12 Com. B. Rep. N.S. 535; 8. c. 31 Law J. Rep. (N.s.) C.P. 291.

(5) 7 Mee. & W. 306 ; s. c. 10 Law J. Rep. (n.s.) Exch. 321.

(6) 4 Term Rep. 62!.

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