1868 On the 2nd of April Furber ave notice to the company to take THE QUEEN the whole of his premises, and at the hearing, on the 20th of April, it was agreed that the summons should be amended so as to include the whole. บ. VAUGHAN. The summons was adjourned, and Furber attended at the hearing of the adjourned summons on the 20th of April, and deposed that "the net profit of his business as a publican for some time previously and up to the month of June, 1865, amounted to 4907. per annum; and that in consequence of the execution of the works of the company in destroying the neighbourhood near to and surrounding the house, by the demolition and destruction of the adjoining houses and otherwise, his net profits in the years 1866, 1867, and the year 1868 up to the said 20th of April, had diminished to a net profit of not more than 2007. per annum." Some discussion ensued before the magistrate as to the extent of the right of Furber to compensation; and the hearing being again adjourned, the parties again attended before the magistrate, when the following was submitted to him in writing on behalf of Furber: "That the compensation to be paid for the value of his interest in the premises, such as it was and would have remained but for the works of the company, ought to be assessed under the following heads: 1. For the value of his interest in the premises at the present time, such as incoming tenant would give him, 3507. 2. For the depreciation in value of such interest caused by the company's works having reduced the custom of the house from a profit of 4957. a year to 2007. a year, 3857. 3. For the loss of trade profit up to the present time from the commencement of the works, about two and a half years, 7007. 4. Value of fixtures and trade utensils and furniture to be paid for by an incoming tenant. 5. Value of stock to be paid for by an incoming tenant. 6. Costs. These last three items to be disposed of as agreed on." On behalf of the company it was contended that the magistrate ought not to allow the loss for trade profits. The magistrate on the 29th of April gave a judgment in writing, by which he determined that "the compensation to which Furber is entitled, in respect of compensation for the value of the unexpired term and interest in the said Black Bull public-house, yard, shed, and skittle ground, and for allowance, which ought justly to 1868 v. VAUGHAN. be made to him by an incoming tenant for goodwill and trade fittings and fixtures, and for the licences of the said public-house, THE QUEEN and for the loss in respect of the depreciated value of furniture therein, amounted on the whole to the sum of 8377. 18s.," and he ordered that sum, together with 1617. 4s. 10d. for costs, to be paid by the company. The trade fixtures and fittings were valued at 1737. 10s., which sum was included in the above sum of 8377. 18s. The injunction was dissolved on payment of the said sum of 8377. 188. and 1617. 4s. 10d., without prejudice to any further claim. Whereupon a rule was obtained calling on James Vaughan, Esq., the magistrate, and the company, to shew cause why the magistrate should not assess the amount of compensation to be paid by the company to Furber "in respect of the damage done to his interest in the premises by reason of the execution of the works of the company, and resulting in a loss of trade profits up to the 29th of April, 1868, from the commencement of the works, amounting to the sum of 7007.” Hawkins, Q.C., shewed cause. The item of claim disallowed is clearly inadmissible. The case is governed by Ricket v. Metropolitan Railway Company (1), and indeed is a stronger case, as there is here no road blocked up, and no interruption of the thoroughfare to the claimant's house, but simply what he calls a destruction of the neighbourhood, by the pulling down of houses; this the company might lawfully have done without statutory powers, and no action could have been brought against them; and therefore the damage is not the subject of compensation: New River Company v. Johnson (2), Rex v. London Dock Company. (3) The case does not come within the distinction taken by Crompton, J., in the case of Stockport, Timperley, and Altringham Railway Company. (4) J. J. Aston, in support of the rule. If there was any doubt as to the legality of the claim, the magistrate ought to have assessed the compensation, leaving the legality to be afterwards contested in an action. The company were bound to take the land after the six months had elapsed: Morgan v. Metropolitan Railway Com (1) Law Rep. 2 H. L. 175. (2) 2 E. & E. 435; 29 L. J. (M.C.) 93. (3) 5 A. & E. 163. (4) 33 L. J. (Q.B.) 251, 253. 1868 THE QUEEN v. VAUGHAN. pany (1); and they are therefore liable for the consequence of their laches. [COCKBURN, C.J. I do not see how that case makes in favour of the claimant.] In Ricket v. Metropolitan Railway Company (2), (from the decision in which Lord Westbury dissented), no land of the claimant was taken; and that is the very distinction taken by Crompton, J., in the case of Stockport, Timperley, and Altringham Railway Company (3), that where land is taken the owner is entitled to compensation in respect of any injury caused by the works. The terms of s. 121 of 8 Vict. c. 18, are that the tenant from year to year shall be entitled to compensation for "any loss or injury." Reg. v. Stone (4), shews that a notice to treat is not equivalent to requiring possession; here the claimant was not required to give up possession till March, 1868, and he therefore had full right to carry on his business in the meantime. [LUSH, J. In addition to the notice to treat, there was the notice under the special Act, that the company would require the premises at the end of six months.] COCKBURN, C.J. I am clearly of opinion that this rule must be discharged. The tenant was entitled, on the property being taken by the company, to compensation, but entitled only to compensation assessed according to the profit he was then making by carrying on his business on the premises; but as soon as the company acquired the right of possession in the property the tenant's interest ceased; and if they had taken possession, his business and profit must have ceased also. It is quite clear the tenant cannot ask for compensation because the neighbouring property has been taken. The company might have done this by voluntary agreement quite independently of any statutable powers, and so destroyed the custom of the public-house, and no action could have been maintained by him for the loss, inasmuch as no injury or trespass was done to him; consequently he could not have claimed compensation for this description of loss. This is an item of compensation not contemplated by the statute. (1) Law Rep. 3 C. P. 553. (3) 33 L. J. (Q.B.) 251, 253. 1868 v. VAUGHAN. The only ground on which the claim could be made with any show of reason is, that the company, instead of taking the pre- THE QUEEN mises when they ought to have taken them, and having the compensation at once assessed upon the profits the claimant was then making, allowed the matter to stand over for two years. But so does the claimant; he might have applied to a court of law, and insisted upon the company proceeding with the purchase at the end of the six months, as was held in Morgan v. Metropolitan Railway Company. (1) Instead of doing this, he holds by, and then claims, not only compensation for the value of his interest in the premises and goodwill, but also in respect of the depreciation in his profits, during the two years since the company should have taken possession, caused by the works of the railway and the pulling down of the neighbouring houses. He cannot claim both the value of his interest and goodwill in the premises at the time the company gave him notice, and also for depreciation in the value of such interest caused by the company's works, and the consequent loss of profits; the latter was the result of his own act, for it was his own fault that he continued to carry on the business on the premises after the six months had expired. It is quite clear therefore that the magistrate was bound to exclude this item, not only on the construction of the Lands Clauses Consolidation Act, but also with regard to the circumstances of the case. The rule must therefore be discharged. LUSH, J. The precise point decided in Rex v. London Dock Company (2) was that this very item of claim could not be supported as injury to the interest of the occupier of a public-house; and without the authority of that case I should have no doubt that the claimant is not entitled to claim compensation in respect of this depreciation. HANNEN, J. It is very desirable to adhere strictly to the rule that that only is subject of compensation under these statutes, which would have been the subject of an action if the company had acted without statutory powers. Now, it is clear that no action would lie by persons whose business is deteriorated by reason of (2) 5 A. & E. 163. (1) Law Rep. 3 C. P. 553. VOL. IV. S 1 Attorneys for company: Baxter, Rose, Norton, & Co. 1869 Jan. 15. SHEPHERD v. HARRISON AND ANOTHER. Principal and Agent to buy-Consignor and Consignee-Bill of Lading-Where The plaintiff in England sent an order to P. & Co., at Pernambuco, to buy cotton for him within certain limits. They bought cotton on account of the plaintiff, and shipped it in the defendants' vessel; the invoice was made out as shipped on account and risk of the plaintiff, but the bill of lading was taken deliverable to P. & Co.'s order or assigns, paying freight. P. & Co. wrote to the plaintiff advising the shipment, and price and quality of the cotton; and saying, "Enclosed please find invoice and bill of lading; we have drawn upon you for the amount in favour of our agents, to which we beg your protection." The invoice was sent direct to the plaintiff; but the bill of lading (which had been indorsed in blank by P. & Co.), was sent with the bill of exchange to P. & Co.'s agents in England. The agents wrote to the plaintiff enclosing the two documents, and requesting his protection to the draft. The plaintiff retained the bill of lading, but returned the bill of exchange unaccepted on the ground that P. & Co. had not complied with the plaintiff's order. The plaintiff presented the bill of lading to the defendants, but they, having been informed of the circumstances under which the plaintiff held it, refused to deliver the cotton to him, saying they should deliver it to P. & Co.'s agents under a duplicate bill of lading which they had retained. On a case stating the above facts, the Court having power to draw inferences of fact: Held, that the inference to be drawn was, that it was the intention of P. & Co. that the property in the cotton should not pass to the plaintiff until he had accepted the bill of exchange; that no property, therefore, passed to the plaintiff, and the defendants were right in refusing to deliver to him. DECLARATION for the conversion of 200 bales of cotton. Pleas: 1. Not Guilty. 2. That the goods were not the plaintiff's. Issue thereon. At the trial before Mellor, J., at the Manchester spring assizes, 1868, a verdict was entered by consent for the plaintiff for 12517. 13s. 8d., subject to the opinion of the Court upon a case of which the following is the substance : |