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posed entail or quasi entail in the testator claims the entirety as heir in tail of to himself and the other heirs of his body the testator at his death, all those (excluding certain lines of descent which being excluded who came within the would include the real heirs of his body). particular limitation.

He relies upon Cases of limited entail were put, such as the exclusive effect of the word “ other,” the entail upon the Electress Sophia of and the distinction between his case and Hanover, and the heirs of her body being that of Roach is that he claims as upon a Protestants, or upon a man and the heirs remainder, vested at the death of the of his body tenants of the manor of Dale. testator, whereas in Roach's case the It is unnecessary to enlarge upon the ob- remainder is contingent as to the person vious distinction between such cases to take. The same objections apply as to (where a condition is imposed upon a Roach's case, except that founded upon person who is the real heir of the body), the construction making the remainder and the present. Such a distinction might contingent. It provides one person to be of importance in the case of a grant take under the limitation, but makes no or devise to the ancestor as well as to provision for all and every the other issue, the heirs of his body. But we should

except by the eccentric application of certainly not extend Mandeville's case (22) Mandeville's Case (22). The following to such remote and contingent interests would be one of the consequences of the as we are now considering or suffer the construction contended for by this plaintiff. testator to be quasi tenant in tail of au If the third baronet (the grandson) had estate descendable, not to the heirs of his left one child, a daughter, surviving body, but to some person who might, at him, that daughter would have clearly a remote period and upon the happening been excluded from all the particular of a certain event, fill the character of limitations. And though upon the exheir of his body, and upon the failure of tinction of all the male lines she would be his issue to some other heir of the body the proper representative of the family, not easily ascertained. In the case put, she would be excluded by the grandson the heir of the body who took as by of her great great aunt, Sarah Reed, descent would take an entirely different whose issue the testator purposely exestate from that of the ancestor from cluded in the enumeration of all who were whom he is supposed to inherit.

to take. According to the construction In the third action, Clennell v. Blake, the which we put upon the will, the estate claimant is Percival Fenwick Clennell. His would have come to her in a regular mother was the survivor of all the issue course of descent as tenant in tail in the of the testator living at his death (other events which have happened. than those included in the particular There was a fifth case, Allgood and others limitation), and he claims either the v. Blake, mentioned upon the argument, in entirety as the survivor of the issue living which the plaintiffs are the same as in at the death, or his share in case the the first, and which is only a different other issue are allowed to come in. His action because it is brought in respect of case as regards the claim to the entirety other property. In that case also judgdiffers from the first case only in this, that ment will be for the defendant. he insists the distribution ought to be made among the issue at the death of BRAMWELL, B.-I concur that our judgthe testator, and as to the share claimed ment should be for the defendant, and I his case is the same as the first. The agree in all the reasoning of the judgment same objections apply quite as strongly. that has been delivered, except in the Distribution among the issue per capita dealing with the word “other” in the is equally against the language and in- penultimate clause. I think the testator tent of the will, whether finally made at did not intend and has not expressed the the death of the testator, or modified by intention that any of the issue of his body the introduction of other issue.

before named should take an additional In the fourth case, Reed v. Blake, estate to that he had already given them. the claimant is Francis Reed, and he I do not think he had so improbable a thing in view. I think he meant, that and to construct thereon - secen railways, for default of such issue as named, the which, when completed, were to be called the daughters of the sons of his eldest grand- East London Railway. Section 128 enacted son, on their default the daughters of his that if and while the defendants were poseldest grandson, then the daughters of sessed under this Act of any lands the sons of his second grandson, then the assessed or liable to be assessed to any daughters of his second grandson, then in sewers rate, consolidated rate, poor-rate, the same way as to the third, fourth and church-rate, or other parochial or ward rate, other grandsons, then the daughters of they shall from time to time, until the railgranddaughters should take in succession way or the works thereof are completed and as purchasers, and so on according to assessed or liable to be assessed, be liable to heirship to him.

make good the deficiency in the assessment This would give the estate to Mrs. for such rates by reason of those lands Roach. But this intention is not ex- being taken or used for the purposes of the pressed sufficiently to be carried into railway or works."

railway or works." The defendants took execution, and the only way to accom. for the purposes of the Act lands in R. plish the testator's general or governing parish assessed to purochial rates, and comintent to provide for the issue of his body pleted thereim all that portion of railway is to construe the will as proposed in the No. 1 which lay within R. parish, and also judgment delivered by my brother the stations thereof. They were constructing, Cleasby. I therefore concur in that but had not completed, the rest of railway judgment, and the more readily for this No. 1. This completed portion they had let reason, that if the penultimate clause be to the B. Company, who had opened it for not interpreted as proposed, it is un- traffic, and now occupied and worked it as meaning, in which case also the defendant a railway. The defendants had also taken is entitled to judgment.

lands in other parishes, whereon they had

completed railway No. 4, and were conJudgment for the defendant. structing, but had not completed, the remain

ing five railways :-Held, per WILLES, J.,

KEATING, J., LUSH, J., and BRETT, J., reAttorneys-Jennings, Nicholls & Co., for plain- chequer (40 Law J. Rep. (n.s.) M.C. 123),

versing the judgment of the Court of Extiffs ; Johnston & Mounsey, for defendants.

that the liability to make good the deficiency did not cease until the whole of the railway and works authorised by the Special Act was completed.

Contra, per BLACKBURN, J., and MELLOR, J., that as soon as that portion of railway

No. 1 which lay within R. parish was com[IN THE EXCHEQUER CHAMBER.]

pleted and worked as a railway, it became (Error from the Court of Exchequer.) "liable to be assessed," and the defendants JAMES WHITECHURCH

ceased as to that portion to be liable to

make good the deficiency in the rates under OTHERS, CHURCHWARDENS AND

section 128. 1872.

OVERSEERS OF THE POOR OF
June 25.
ST. MARY, ROTHERHITHE, IN

[For the report of the above case, see OF SURREY V.

the volume for 1873–42 Law J. Rep. THE EAST LONDON

(N.s.) Magistrates' Cases.]

AND

THE

COUNTY

RAILWAY

COMPANY.

Poor Rate Parochial Rate · Lands taken under Act of Parliament-Liability to make good Deficiency in Rates.

The defendants were authorised by their Special Act to take lands in several parishes,

THE COMPANY OF PROPRIE1872.

repeal of the respective recited Acts the TORS OF THE SHEFFIELD June 21, 26.

several clauses and provisions whatsoever WATER WORKS V. BENNETT. in favour of the Company respectively Water Company - Water-rate varying

contained in any Act or Acts (other than according to Rentof Houses-- Poor

the said recited Acts respectively), and

which immediately before the passing of rates, District Rates, and Water-rates when paid by Landlord to be deducted from Rent

this Act are in force, shall continue and -Annual Value.

be in full force accordingly, and the Com

pany and their directors, officers and The plaintiffs were required by their servants may and shall, accordingly and for Special Act to furnish water to every inha- the purposes of this Act, be entitled to bitant occupying a house within a certain and have, exercise and enjoy under or by district, at a rate which varied according to virtue of those clauses and provisions the amount of the "rent" of such house respectively all such rights, interests, per annum. The defendant was the owner powers, authorities and privileges whatof many such houses, which he let to tenants soever as if this Act had not passed.” for various terms not exceeding three months. Sect. 79. “ That the Company shall and In respect of some of the houses the defen- they are hereby required to furnish a suffidant paid the poor-rates, district rates, and cient supply of water to every inhabitant water-rates, instead of the tenants, either occupying a private dwelling-house or part because he had let the houses on those terms, of a dwelling-house in any square, street, or because the obligation was imposed on close or lane of the town and borough of him by statute :-Held, that in calculating Sheffield aforesaid, and in any other place the water-rate the payments made by the or places within the limits of this Act defendant in either case must be deducted where the pipes of the Company are now from the rents at which the houses were let. or hereafter shall be laid for the use of

his or her family at the following rate per Action to recover 311. for water-rates. annum (that is to say). The defendant paid into Court 241. 108., "Where the rent of such dwelling-house and the cause was afterwards turned by or part of a dwelling-house shall not amount consent into a SPECIAL Case, the material to 71. per annum, at a rate not exceeding parts of which are as follows.

61.

per centum per annum on such rent, The plaintiffs (hereinafter called the but not in any such case to exceed the Company) were incorporated in 1830 by sum of 78. 2d. per annum. 11 Geo. iv. c. lv. In 1845, by 8 & 9 “Where such rent shall amount to 71. Vict. c. clxxv., further powers were given but not to 81. per annum, at a rate not to the Company. In 1853, by 16 Vict. exceeding 88. per annum." c. xxii., the Acts of 1830 and 1845 were The section then provided the scale of repealed, subject to the provisions con- rates for rents between 81. and 1001. per tained in the Act of 1853, and by s. 6 annum, and concluded thusthe Company was re-incorporated as from “Where such rent shall amount to 1001. the passing of the Act of 1830. The Act of or upwards per annum, at a rate not ex. 1853 also contained the following provi- ceeding 31. per cent. per annum on such sions :

rent: Sect. 3. “That the Companies Clauses “Provided, nevertheless, that the comConsolidation Act, 1845, and the Landspany shall not be entitled to receive from Clauses Consolidation Act 1845, and any such inhabitant more than the sum of The Water Works Clauses Aet, 1847, 61. in any one year for such supply, nor except section 54 of the last mentioned shall such company be obliged to furnish Act, and save so far as any of the clauses such supply to any inhabitant for less in any of the said Acts may be expressly than 78. 2d. in any one year, unless they varied or excepted by this Act, shall be shall think fit so to do." and the same are hereby incorporated Sect. 80. “That in cases where the with this Act.”

landlord or owner of a number of houses Sect. 9. "That notwithstanding the let at rents not exceeding 71. a year reNEW SERIES, 41.-EXCHEQ.

2 H

spectively, shall agree with the said com- tively, vary in amount from time to time, pany to pay the water rent for the same, and at the same periods of time are larger the company shall not in such cases in some than in others. charge more than 6s. 4d. a year for each The mode of ascertaining the rateable house for such supply, anything to the value of premises rateable to the poorcontrary in this Act contained notwith. rate is not the same in the several town. standing."

ships, parishes and places, the conseIn 1864, 27 & 28 Vict. c. cccxxiv. was quence of which is that the sums at which passed, the 105th section of which was as similar premises are rated are relatively follows : “ The provisions of the Com- lower in some of such townships, parishes pany's Act of 1853 relative to the water and places than in others. rents or rates to be taken by the company The borough of Sheffield is co-exten. shall, from and after the time for the first sive with the parish of Sheffield, and half-yearly collection of the company's comprises, among others, the townships water rents-after the passing of this Act, of Sheffield and Brightside Bierlow. and thenceforth for a period of twenty

The Local Government Acts have been five years, have effect as if the several applied to and are in force within the maximum water rents or rates in those pro- borough of Sheffield, but not to or within visions specified were increased in each in- any other of the townships, parishes or stance by 25 per centum. Provided always places included within the limits of the that all water rents or rates authorised to Company's district. General district rates, be taken by this Act or the Company's Act which may vary in amount from time to of 1853 for any purposes whatever, shall time, are levied under these Acts in the be charged to all persons impartially and borough of Sheffield. without favour, according to the scale of On the 20th of September, 1865, after rents or rates specified as aforesaid for the the Local Government Acts had been apseveral purposes respectively, except that plied to the borough of Sheffield, the such rates may by agreement be reduced Town Council of Sheffield, which is the for the sanitary purposes of the town.” Local Board for the borough, passed a

Under the powers conferred by the resolution in the following words: “It above Acts, and by 23 Vict. c. lxx. and 30 was ordered that the General District Vict. c. lxxxvii. (all of which form part Rate be laid and levied upon the owners of this case), the company is authorised instead of the occupiers in cases where to supply water within thirteen townships the rateable value of any premises, liable and places, viz., the townships of Sheffield to assessment under the Local Governand Brightside Bierlow (among others) ment Act, 1858, does not exceed the sum in the parish of Sheffield ; and certain of 71., and that the same be assessed at the townships and parishes in the counties of reduced estimate of three-fourths of the York and Derby.

net annual value of such premises." The dwelling-houses or tenements at The defendant was at Christmas Day, present supplied by the company with 1870, and during the next two quarters, water within the limits of their district the owner of ninety-two dwelling-houses are about 48,400 in number, of which or tenements, which were let by him about 30,000 are of an annual value not during such period at the rents or sums exceeding 101. Of these houses, some are in the manner specified in the schedule occupied by the owners.

(1), and of which the occupiers were at The water rates payable to the company the request of the defendant supplied with are due quarterly, on the 25th of March, water by the company during those two the 24th of June, the 29th of September, quarters. and the 25th of December.

A separate poor-rate is levied in each of (1) The schedule, which formed part of the Case', the townships, parishes and places in

specified, among other particulars, the defendant's cluded within the limits of the company's

gross annual receipts in respect of each of his

ninety-two houses. The lowest was 77. 16s. Od., district. The poor-rates in the several

the highest 261. The others ranged between those townships, parishes and places respec

sums.

Sixteen of those houses are in the town. in respect of which the water-rates in ship of Sheffield and the remainder in the question are claimed were, during the period adjoining township of Brightside Bierlow. for which they are claimed, respectively

During the two quarters for which the let for terms not exceeding three months water-rates in question are claimed the within the meaning of the first section of poor-rate levied in the township of the Poor Rate Assessment and Collection Sheffield was after the rate of 2s. 10d, in Act, 1869. Section 4 of that Act has not the pound, and in the township of Bright- been adopted in either of the townships of side Bierlow, after the rate of 2s. 6d. in Sheffield and Brightside Bierlow. the pound.

The tenants of six of the dwellingDuring the same period the general houses or tenements, for which the water district rate in the borough of Sheffield rates in question are claimed, held their under the Local Government Acts, was respective dwelling-houses or tenements after the rate of 28. in the pound subject of the defendant on the terms that they to the deduction mentioned in the afore. should not take advantage of section 1 said resolution of September 20, 1865. of the last-mentioned Act, but should pay

The company claim to charge the their respective rents for the same with. water-rates in respect of the dwelling- out deducting the sums paid by them for houses or tenements in question, upon the poor-rate. rents or sums at which they were let re- The water-rates in respect of all the spectively, without making any deduction ninety-two houses for the quarter of a therefrom.

year next following Christmas-day, 1870, The defendant contends that the water- became due on the 25th of March, 1871, rates ought to be charged upon the annual and for the next quarter on the 24th of value of the dwelling-houses or tenements, June, 1871. free of all tenants' rates and taxes, and The water-rates for the two quarters that in ascertaining such annual value, a amounted, according to the mode of deduction should be made from the rents computation adopted by the company, to or sums at which the dwelling-houses or 311., and, according to the mode of comtenements are respectively let in respect putation contended for by the defendant, of the amounts allowed or paid by him for to 241. 7s. 6d. poor-rates, district rates, and water-rates, The rents or sums at which the dwel. whether such allowance or payment is ling-houses or tenements are let, are to made by him by virtue of statutory obli- be taken to be the full rents or sums obgations imposed upon him or by reason tainable on the terms on which the same of agreement voluntarily entered into be

are respectively let. tween himself and his tenants.

The question for the opinion of the The sums in respect of which these de- Court is, whether, in calculating the waterductions are claimed by the defendant, rates, any deduction should be made from were allowed or paid by him as specified the rents or sums at which the dwellingin the schedule for the poor-rates, district houses or tenements are respectively let, rates and water-rates, either by virtue of in respect of the payments made or allowed statutory obligations imposed upon him, by the defendant for poor-rates, district or by reason of the terms (voluntarily rates and water rates, or any and which agreed to by himself and his tenants) on of them, either where the same were which the respective dwelling-houses or allowed or paid by the defendant by virtue tenements were let by him. The statu- of statutory obligation, or where the tory obligations above referred to are, as same were allowed or paid by the defendregards poor-rates, section 1 of the Poor- ant, by reason of the terms (voluntarily rate Assessment and Collection Act, agreed to between him and his tenants) 1869; as regards district rates, section 55 on which the respective dwelling-houses of the Local Government Act, 1858, and, or tenements were let by him. as regards water-rates, section 72 of the If the Court should be of opinion that Water Works Clauses Act, 1847.

none of the deductions ought to be made, All the dwelling-houses or tenements judgment was to be entered for the plain

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