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Edwin Nixon doth bind himself to pay all following notice to treat for the said prerates and taxes, and to do all repairs he mises. may think requisite to have done to keep “ The Holborn Valley Improvement (Adthe said house and premises in a fit state ditional Works) Act, 1867. of tenantable repair. And lastly, it is “To James Walter Tyson, and to all and mutually agreed that after the expiration every other person and persons having or of this agreement, the tenancy shall con- claiming any estate or interest in the tinue as a yearly tenancy at the same rent hereditaments and premises hereinafter and same mode of payment as before mentioned or any part thereof. stated, and that six months' notice be “Pursuant to and by virtue and in exsufficient on either side for giving up or ercise of the powers and provisions conregaining possession of the said house and tained or incorporated in an Act of premises.
Parliament, having the short title of “The ** Signed, Edwin Nixon.
Holborn Valley Improvement (Additional James Walter Tyson. Works) Act, 1867,' and by order and on “Witness, W. Tyson.”
Upon the 25th day of January, in the lands, and pull down and remore houses, at year of our Lord, 1869, the Corporation
the expiration of six months after notice in of London, as promoters of the Holborn
writing of the intention to take or use them Valley Improvement Additional Works Act, 1867 (1), served on the plaintiff the
given to the owner or occupier; by s. 14 it provided
that no house was to be taken or used except (1) The Holborn Valley Improvement (Additional those in the schedule ; by 8. 17 it allowed the Works) Act, 1867 (30 Vict. c. lv.), by sec. 14 incor- Mayor, &c., to treat for the purchase of any
lands porated the London (City) Improvement Act, 1847, (which included houses) authorised to be taken ; except ss. 3, 19, 42-45, 50-55 inclusive, the Lands by s. 19 it provided, that so much of the Lands Clauses Consolidation Act, 1845, except the pro- Clauses Act, 1845, as relates to the purchase of visions for purchasing and taking lands otherwise lands otherwise than by agreement, was not to be than by agreement, and ss. 127-132 inclusive, incorporated; by s. 20 it enacted, that on or before and the Lands Clauses Consolidation Acts Amend- the expiration of a month after notice of the inment Act, 1860, except in so far as repealed, altered, tention to take or use land, particulars of the raried, or inconsistent; by sec. 15 it specially in- estate, &c., improvements, &c., injury, &c., corporated s. 121 of the Lands Clauses Consoli- should be given by those entitled to be recomdation Act, 1845; by s. 17 it excluded s. 91 of pensed for them, and the sum they were willing the Lands Clauses Consolidation Act, 1845; by to receive; by s. 21 it provided, that when parties s. 18 it provided that so much of s. 34 of the refused to accept satisfaction or to treat, &c., the Improvement Act of 1847, as provides that pos- Mayor might issue his precept for empanelling a session should not be delivered till payment or jury; by s. 32 it provided, that in case of differdeposit of purchase or compensation money should ence between the Mayor, &c., and owners, and be made, as directed by the Lands Clauses Con- occupiers, &c., as to the amount of damages to solidation Act, 1815, should not apply, and no such property if the claim be not over 501., the possession should be required till it was deposited amount was to be determined by two justices; or paid in another specified manner; and by and by s. 34 it provided that all persons in actual s. 29 it incorporated ss. 19-31 inclusive, and s. 33 possession of lands should at the expiration of of the Holborn Valley Improvement Act of 1864. six mouths, after notice in writing, give up pos
The London (City) Improvement Act, 1847 session, and if they refused, the Mayor, &c., migh (11 & 12 Vict. c. cclxxx.), by sec. 1 incorporated issue their precept to the sheriffs to deliver posthe Lands Clauses Act, 1845, so far as its pro- bession, but that possession should not be devisions were not expressly varied or excepted livered till payment or deposit of the purchase or by the Act; and by s. 13, for the purposes of the compensation money, as directed by the Lands Act, allowed the Mayor, &c., to take and use Clauses Consolidation Act, 1846.
behalf and as agent of the mayor, alder- which such amount of money has been men, and commons of the city of London computed and made up. And in case you in common council assembled, and of the have a greater interest in the said heredicommittee to whom the powers contained taments and premises than as tenant-ator incorporated in the said Act are dele. will, and claim compensation in respect of gated, I do hereby give you and each and any unexpired term or interest under any every
notice that it is the inten. lease or grant of the lands or heredita. tion of the said mayor, aldermen, and ments so required as aforesaid, I do hereby commons in common council assembled, further require you to produce the lease and of the said committee, to take and use or grant in respect of which such claim is for the purposes of the said Act the houses, made, or the best evidence thereof in your shop, and offices, distinguished by a red power. colour on the accompanying plan, with the “ Dated this twenty-fifth day of appurtenances thereto belonging, which
January, 1869. said premises are described in the plan
"Ferd. Brand, Guildhall, London, and book of reference referred to in the
Comptroller of the Chamber said Act, as Nos. 167 and 168, in the
of the said City.” parish of Saint Bridget, otherwise Saint “In order to assist you in preparing & Bride, in the city of London. And I statement of your claim a printed form, to further give you notice that the said be filled up and signed by you, accommayor, aldermen, and commons, and the panies this notice.” said committee are willing to treat and Upon the 19th day of February, 1869, agree with you for the purchase of your the plaintiff sent to the Corporation a estate and interest in the said heredita- statement of the amount of his claim, ments and premises, and for the compen- and the nature of his interest in the said sation to be made for the injury or damage premises. . (if any) that may be sustained by you on The plaintiff was in occupation of the account of the execution of the said Act. premises at the date of the commenceAnd I do hereby further give you, the ment of this action, 3rd of November, person or persons in the possession or 1870. occupation of the above-mentioned pre- The necessity for a formal demand on mises or any of them or any part thereof, the defendant to perform his alleged duty notice, and require you at the expiraton was waived before action. of six calendar months from and after No objection of form is to be taken on the giving of this notice, peaceably and either side. quietly to deliver up the possession of the The question for the opinion of the said premises to me, the person duly Court is, whether the plaintiff at the date authorised to take and receive the same, of the issuing of the writ was entitled or to such other person or persons as may at
to maintain this action. any time hereafter be duly authorised for If the Court shall be of opinion in the
And I do hereby require affirmative, then judgment with costs of you on or before the expiration of one suit is to be given for the plaintiff, that a month next after the giving of this notice, writ of mandamus do issue to the de. to deliver at my office a statement in fendant to issue his precept in respect of writing of the particulars of the estate the said lands pursuant to the statutes, and interest to which you claim to be en- and to do all acts, and take all necessary titled in the said hereditaments and pre- steps, for the purpose of having the commises, and of the amount of the sum of pensation to be paid to the plaintiff asmoney you are willing to receive in satis. sessed by a jury, such jury also to assess faction or recompense for the value of the damages, if any, which would be such estate and interest, and as compen- recoverable in the action of mandamus. sation for any improvements or fixtures, If the Court shall be of opinion in and for any injury or damage that may be the negative, then judgment of nol. pros. sustained by you on account of the execu- with costs of suit, shall be entered
for tion of the said Act, and of the manner in the defendant.
W. G. Harrison, for the plaintiff.—The ciding the tribunal the expiration of the question in dispute is whether the plain- notice is to be regarded. It is admitted tiff is entitled to have compensation that the date of the notice to treat is the assessed by a jury under The London important date under the Lands Clauses (City) Improvement Act, 1847, section Consolidation Act, but the local Act here 21, or by justices under the Lands Clauses throws the period forward six months. Consolidation Act, 1845, section 121. And Under the sections of the former Act the other side contend that the length of after twenty-one days the matter is ripe, the plaintiff's interest is to be calculated and it was decided that the time of notice from the expiration of the six months' there binds, because afterwards a contract notice, and that if so calculated it is so of vendor and purchaser exists, attaching short as to bring it within the latter sec- to the then existing interest, and the mation, which provides that where the interest chinery for turning out might be put in is not greater than a tenancy for a year,
force and effect it shortly-Sparrow v. or from year to year, two justices are to The Oxford, Worcester, and Wolverhampton adjudicate. First, an equitable interest Railway Company (7), whilst here there is sufficient Sweetman v. The Metro- is a delay of half a year. Suppose a politan Rail. Co. (2), and looking to the notice given of intention after six months agreement the plaintiff's interest was for to give notice to treat, then, apart from more than a year even from the end of statutory provision, the interest would the six months' notice. And, secondly, not be taken as from the beginning of whether this be so or not, the date of the the notice, and the only effect of the local notice determines the tribunal, in which Act is to make this a contract to take at a case the plaintiff clearly has sufficient future time. The only power here to take interest to exclude the jurisdiction of the is given by section 13 of the local Act justices. The notice under the Lands which uses the word “intention,” and Clauses Consolidation Act has always reading this with section 34 as to six been held to put the parties in the same months' notice, the effect is that the position as vendor and purchaser, to statute means that six months' notice make a complete contract, and to bind of intention to take is to be given, that as to value from that time, though as
the authorities are bound to take then, between heir and executor it does not that the contract is for an interest turn the realty into personalty-Hodges existing at this future time, and that on Railways, i79–181; Salisbury v. The that time is to be the test as to the Great Northern Railway Company (3); compensation and tribunal. Nothing in
. Haynes v. Haynes (4); Stebbing v. The Morgan v. The Metropolitan Railway ComMetropolitan Board of Works (5). And pany (6) militates against this view. As as respects 11 & 12 Vict. c. cclxxx. s. 34, respects the other point, if the Court be the words of the section shew that it was against the present one, it is unnecessary contemplated that the assessment should to argue it. be made before the notice to quit elapsed, a notice which, according to Morgan v. WILLES, J.-No satisfactory distinction The Metropolitan Railway Company (6),
has been shewn on behalf of the defend. is binding; and, consequently, the same ant. The notice here incorporated both rule applies here as under the Lands a notice to give up possession after six Clauses Consolidation Act, and the date months, and a notice to treat, and since of the notice is what must be looked to. Morgan v. The Metropolitan Railway Co. Thesiger, for the defendant.--For de- (6) it must be taken for it is a decision to
that effect—that notice of intention to (2) i Hem. & M. 543.
take possession after six months involves (3) 17 Q.B. Rep. 840; s. c. 21 Law J. Rep. an obligation to give notice to treat, and (s.s.) Q.B. 185.
it may be therefore that though this (4) 30 Law J. Rep. (x.s.) Chanc. 578.
notice incorporates both, a notice to treat (5) 40 Law J. Rep. (N.s.) Q.B. 1.
(6) 37 Law J. Rep. (N.s.) C.P. 265 ; 8. c. 38 (7) 9 JIare 436; s. c. 21 Law J. Rep. (N.s.) Law J. Rep. (x.s.) C.P. 87.
Chanc. 731. New SERIES, 41.-C.P.
should be given, but this would be narrow KEATING, J.-I am of the same opinion. ground on which to decide the case. My The time from which the plaintiff's inimpression is, that the notice to treat terest is to be computed is the date of the relates to the time at which notice is notice. Here the notice embraces both a given that the premises are to be taken notice to treat and a notice of intention to compulsorily, which notice, wbether take, but I agree irrespectively of this, given in the form of a notice to treat and on the general question, that still the or a notice to quit, is equally binding. interest is to be determined by the date of The notice of intention to take is not a the notice of intention to take, even if notice that “we intend to take, if we it does not involve a notice to treat, for should afterwards make up our minds to Morgan v. The Metropolitan Railway Co. give a notice to treat, but not if we do a
(6) decides that such a notice binds the not,” but a notice that we have made up defendant and compels him to go on and our minds to take, and we give you six to take and compensate. The six months' months' notice thereof by which you are notice relates only to the possession. It bound by reason of the Act of Parlia- is said, that because such a notice is rement.” And whether the notice to treat quired, the period for determining the be given first, or the notice to give up interest of the plaintiff is the end of the six possession, the giving of the first notice months, but this is not so, for the notice is the date to which all questions of com- of intention to take is binding. Section pensation and jurisdiction are to be re- 34 merely relates to the possession, and ferred. It cannot be denied, if Morgan v. contemplates that compensation will be The Metropolitan Railway Co. (6) be good assessed before the lapse of the six months, law, that on receiving the six months' and if so, from what time is the interest notice to quit, the occupier is entitled to of the plaintiff to be computed ? Why, leave and take all the steps requisite for from the date of the notice of intention to leaving and getting a new house, and as take. The section means that the preto such matters it cannot be denied that mises are not to be taken for six months, any compensation he may legally be en- and in the meanwhile that the steps to titled to, is to be referred to a period assess compensation be taken. before the expiration of the six months' BRETT, J.-It is clear that section 34 notice to quit, and if so, why is not this only relates to the possession, and leaves to be so for all purposes? In applying the the question as to purchase and compenLands Clauses Consolidation Act after sation, as it would be under the Lands section 34 of the Local Act, we must Clauses Consolidation Act. take the estate of the tenant when notice COLLIER, J.-Under the Lands Clauses was given. If we apply this rule without Consolidation Act, the interest of a tenant reference to the provision as to giving up is to be computed from the time of notice. possession, there is no doubt that on The same holds here; the only difference January 28, 1869, the plaintiff had more is, that the time for taking is extended than a year's interest, and section 34, from twenty-one days to six months, but which is not specifically directed to this makes no difference in principle, and t:nancies from year to year, but applies to the interest is still to be ascertained by all persons, and was passed in order on the time of the notice. the one hand to prevent persons being suddenly disturbed, on the other to allow
Judgment for the plaintiff' the city authorities to get possession soon, relates to the possession, and therefore it leaves the question of compensation for the person's interest untouched, and deals Attorneys—W. Blewitt, for plaintiff; T. J. Nelson,
for defendant. only with the possession, no matter what may be the interest. The result, there. fore, here is that the plaintiff had more than a year's interest, and is entitled to have compensation assessed by a jury.
PAPPA V. ROSE.
grown in that
At the trial, which took place before Nov. 2, 3.
Bovill, C.J., at the London sittings after
Hilary Term, 1871, a question arose as Negligence-Broker_Liability for Want to the construction of the contract, of Competent Skill-Arbitrator.
whether it meant that the raisins were to
be of the fair average quality of the The defendant, a broker, was employed growth of 1869, or whether, though they by the plaintiff to sell, and, as selling
were to be of the growth of 1869, they broker, sold for the plaintiff “ to arrive
were to be of the fair average quality of certain goods on the terms that they were
raisins generally. It was admitted on "fair average quality in opinion of selling
the part of the plaintiff that the raisins broker.” The buyers having on the arrival "
of 1869 were of inferior quality, as comof such goods refused to take them, the de
pared with those grown in other years, jendant went and inspected them and gave and that if the contract meant that the his opinion that they were not of fair raisins were to be of fair average quality, arerage quality according to the contract :
taking the average of previous years, the -Held, that he gave such opinion as quasi
raisins in question did not fulfil the conarbitrator, and was therefore not liable to
tract, but it was contended on the part of an action for any want of skill in form
the plaintiff that that was not the meaning ing it.
of the contract, but that the meaning was
only that the raisins should be of the fair The defendant, who was a broker, was average quality of 1869, and evidence employed as such by the plaintiff to sell was given to shew that the raisins which a quantity of Smyrna raisins for him, the defendant had reported against, were and the defendant accordingly sold them of the fair average quality of raisins to Messrs. Hanson & Son, upon the terms
and that he had not of the following sold note:
exercised competent skill in examining “October 26, 1869. them. The learned Judge was of opinion “Sold by order and for account of Mr. that the contract meant that the raisins D. Pappa to my principals, Messrs. S. should be of fair average quality generally, Hanson & Son, to arrive, 500 tons black and that the quality was not limited to Smyrna raisins, 1869 growth-fairaverage
the average quality of 1869. He was also quality in opinion of selling broker. To of opinion that the defendant had acted be delivered here in London, at 22s. per in the matter as an arbitrator, and was, cent. duty paid. Shipment November or therefore, not responsible for want of December, 1869. If not delivered, buyer skill in determining the quality of the to be allowed ls. per cent. in bags. Bags raisins, and he accordingly nonsuited the included in weight. Customary allow- plaintiff on both these grounds. ances. Discount 1 per cent. prompt two A rule nisi to set aside the nonsuit, and months from date of final landing.
for a new trial, was granted if the learned “ (Signed) J. Rose.” Judge was wrong on both the grounds on When the raisins arrived Messrs. Han- which he had directed a nonsuit. son objected to take them. The defendant [As the Court expressed no opinion on then went and inspected the goods but the first of these grounds, which involved he declined to pass them, giving his the question as to the construction of the opinion that the raisins were not of fair contract, but confined their judgment to average quality, according to the contract. the latter ground, the arguments as to The plaintiff was, therefore, unable to the construction of the contract make the buyers accept the raisins, and omitted in this report.] was obliged to resell the same at a loss. Giffard, Murphy and Horace Smith He then brought the present action, in shewed cause. The action does not lie; which he sued the defendant for not using the defendant, though a broker, acted as dne care and skill in sampling and ex- an arbitrator, and cannot be sued unless amining the raisins in order to form a there was mala fides, for which there is correct opinion of the same.
no pretence that any existed here. The