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Edwin Nixon doth bind himself to pay all rates and taxes, and to do all repairs he may think requisite to have done to keep the said house and premises in a fit state of tenantable repair. And lastly, it is mutually agreed that after the expiration of this agreement, the tenancy shall continue as a yearly tenancy at the same rent and same mode of payment as before stated, and that six months' notice be sufficient on either side for giving up or regaining possession of the said house and premises.
"Signed, Edwin Nixon.
James Walter Tyson. "Witness, W. Tyson."
Upon the 25th day of January, in the year of our Lord, 1869, the Corporation of London, as promoters of the Holborn Valley Improvement Additional Works Act, 1867 (1), served on the plaintiff the
(1) The Holborn Valley Improvement (Additional Works) Act, 1867 (30 Vict. c. lv.), by sec. 14 incorporated the London (City) Improvement Act, 1847, except ss. 3, 19, 42-45, 50-55 inclusive, the Lands Clauses Consolidation Act, 1845, except the provisions for purchasing and taking lands otherwise than by agreement, and ss. 127-132 inclusive, and the Lands Clauses Consolidation Acts Amendment Act, 1860, except in so far as repealed, altered, varied, or inconsistent; by sec. 15 it specially incorporated s. 121 of the Lands Clauses Consolidation Act, 1845; by s. 17 it excluded s. 91 of the Lands Clauses Consolidation Act, 1845; by s. 18 it provided that so much of s. 34 of the Improvement Act of 1847, as provides that possession should not be delivered till payment or deposit of purchase or compensation money should be made, as directed by the Lands Clauses Consolidation Act, 1845, should not apply, and no possession should be required till it was deposited or paid in another specified manner; and by s. 29 it incorporated ss. 19-31 inclusive, and s. 33 of the Holborn Valley Improvement Act of 1864.
The London (City) Improvement Act, 1847 (11 & 12 Vict. c. cclxxx.), by sec. 1 incorporated the Lands Clauses Act, 1845, so far as its provisions were not expressly varied or excepted by the Act; and by s. 13, for the purposes of the Act, allowed the Mayor, &c., to take and use
following notice to treat for the said premises.
"The Holborn Valley Improvement (Additional Works) Act, 1867.
"To James Walter Tyson, and to all and every other person and persons having or claiming any estate or interest in the hereditaments and premises hereinafter mentioned or any part thereof.
"Pursuant to and by virtue and in exercise of the powers and provisions contained or incorporated in an Act of Parliament, having the short title of The Holborn Valley Improvement (Additional Works) Act, 1867, and by order and on
lands, and pull down and remove houses, at the expiration of six months after notice in writing of the intention to take or use them given to the owner or occupier; by s. 14 it provided that no house was to be taken or used except those in the schedule; by s. 17 it allowed the Mayor, &c., to treat for the purchase of any lands (which included houses) authorised to be taken; by s. 19 it provided, that so much of the Lands Clauses Act, 1845, as relates to the purchase of lands otherwise than by agreement, was not to be incorporated; by s. 20 it enacted, that on or before the expiration of a month after notice of the intention to take or use land, particulars of the estate, &c., improvements, &c., injury, &c., should be given by those entitled to be recompensed for them, and the sum they were willing to receive; by s. 21 it provided, that when parties refused to accept satisfaction or to treat, &c., the Mayor might issue his precept for empanelling a jury; by s. 32 it provided, that in case of difference between the Mayor, &c., and owners, and occupiers, &c., as to the amount of damages to such property if the claim be not over 50l., the amount was to be determined by two justices; and by s. 34 it provided that all persons in actual possession of lands should at the expiration of six mouths, after notice in writing, give up possession, and if they refused, the Mayor, &c., migh issue their precept to the sheriffs to deliver possession, but that possession should not be delivered till payment or deposit of the purchase or compensation money, as directed by the Lands Clauses Consolidation Act, 1845.
which such amount of money has been computed and made up. And in case you have a greater interest in the said hereditaments and premises than as tenant-atwill, and claim compensation in respect of any unexpired term or interest under any lease or grant of the lands or hereditaments so required as aforesaid, I do hereby further require you to produce the lease or grant in respect of which such claim is made, or the best evidence thereof in your
behalf and as agent of the mayor, aldermen, and commons of the city of London in common council assembled, and of the committee to whom the powers contained or incorporated in the said Act are delegated, I do hereby give you and each and every of you notice that it is the intention of the said mayor, aldermen, and commons in common council assembled, and of the said committee, to take and use for the purposes of the said Act the houses, shop, and offices, distinguished by a red colour on the accompanying plan, with the appurtenances thereto belonging, which said premises are described in the plan and book of reference referred to in the said Act, as Nos. 167 and 168, in the parish of Saint Bridget, otherwise Saint Bride, in the city of London. And I further give you notice that the said mayor, aldermen, and commons, and the said committee are willing to treat and agree with you for the purchase of your estate and interest in the said hereditaments and premises, and for the compensation to be made for the injury or damage (if any) that may be sustained by you on account of the execution of the said Act. And I do hereby further give you, the person or persons in the possession or occupation of the above-mentioned premises or any of them or any part thereof, notice, and require you at the expiraton of six calendar months from and after the giving of this notice, peaceably and quietly to deliver up the possession of the said premises to me, the person duly authorised to take and receive the same, or to such other person or persons as may at any time hereafter be duly authorised for that purpose. And I do hereby require you on or before the expiration of one month next after the giving of this notice, to deliver at my office a statement in writing of the particulars of the estate and interest to which you claim to be entitled in the said hereditaments and premises, and of the amount of the sum of money you are willing to receive in satisfaction or recompense for the value of such estate and interest, and as compensation for any improvements or fixtures, and for any injury or damage that may be sustained by you on account of the execution of the said Act, and of the manner in
"Dated this twenty-fifth day of January, 1869.
"Ferd. Brand, Guildhall, London, Comptroller of the Chamber of the said City."
"In order to assist you in preparing a statement of your claim a printed form, to be filled up and signed by you, accompanies this notice."
Upon the 19th day of February, 1869, the plaintiff sent to the Corporation a statement of the amount of his claim, and the nature of his interest in the said premises.
The plaintiff was in occupation of the premises at the date of the commencement of this action, 3rd of November, 1870.
The necessity for a formal demand on the defendant to perform his alleged duty was waived before action.
No objection of form is to be taken on either side.
The question for the opinion of the Court is, whether the plaintiff at the date of the issuing of the writ was entitled to maintain this action.
If the Court shall be of opinion in the affirmative, then judgment with costs of suit is to be given for the plaintiff, that a writ of mandamus do issue to the defendant to issue his precept in respect of the said lands pursuant to the statutes, and to do all acts, and take all necessary steps, for the purpose of having the compensation to be paid to the plaintiff assessed by a jury, such jury also to assess the damages, if any, which would be recoverable in the action of mandamus.
If the Court shall be of opinion in the negative, then judgment of nol. pros. with costs of suit, shall be entered up the defendant.
W. G. Harrison, for the plaintiff.-The question in dispute is whether the plaintiff is entitled to have compensation assessed by a jury under The London (City) Improvement Act, 1847, section 21, or by justices under the Lands Clauses Consolidation Act, 1845, section 121. And the other side contend that the length of the plaintiff's interest is to be calculated from the expiration of the six months' notice, and that if so calculated it is so short as to bring it within the latter section, which provides that where the interest is not greater than a tenancy for a year, or from year to year, two justices are to adjudicate. First, an equitable interest is sufficient Sweetman v. The Metropolitan Rail. Co. (2), and looking to the agreement the plaintiff's interest was for more than a year even from the end of the six months' notice. And, secondly, whether this be so or not, the date of the notice determines the tribunal, in which case the plaintiff clearly has sufficient interest to exclude the jurisdiction of the justices. The notice under the Lands Clauses Consolidation Act has always been held to put the parties in the same position as vendor and purchaser, to make a complete contract, and to bind as to value from that time, though as between heir and executor it does not turn the realty into personalty-Hodges on Railways, 179–181; Salisbury v. The Great Northern Railway Company (3); Haynes v. Haynes (4); Stebbing v. The Metropolitan Board of Works (5). And as respects 11 & 12 Vict. c. cclxxx. s. 34, the words of the section shew that it was contemplated that the assessment should be made before the notice to quit elapsed, a notice which, according to Morgan v. The Metropolitan Railway Company (6), is binding; and, consequently, the same rule applies here as under the Lands Clauses Consolidation Act, and the date of the notice is what must be looked to. Thesiger, for the defendant.--For de
(2) 1 Hem. & M. 543.
(3) 17 Q.B. Rep. 840; s. c. 21 Law J. Rep. (N.S.) Q.B. 185.
(4) 30 Law J. Rep. (N.s.) Chanc. 578. (5) 40 Law J. Rep. (N.s.) Q.B. 1.
(6) 37 Law J. Rep. (N.s.) C.P. 265; s. c. 38 Law J. Rep. (N.S.) C.P. 87.
NEW SERIES, 41.-C.P.
ciding the tribunal the expiration of the notice is to be regarded. It is admitted that the date of the notice to treat is the important date under the Lands Clauses Consolidation Act, but the local Act here throws the period forward six months. Under the sections of the former Act after twenty-one days the matter is ripe, and it was decided that the time of notice there binds, because afterwards a contract of vendor and purchaser exists, attaching to the then existing interest, and the machinery for turning out might be put in force and effect it shortly-Sparrow v. The Oxford, Worcester, and Wolverhampton Railway Company (7), whilst here there is a delay of half a year. Suppose a notice given of intention after six months to give notice to treat, then, apart from statutory provision, the interest would not be taken as from the beginning of the notice, and the only effect of the local Act is to make this a contract to take at a future time. The only power here to take is given by section 13 of the local Act which uses the word "intention," and reading this with section 34 as to six months' notice, the effect is that the statute means that six months' notice of intention to take is to be given, that the authorities are bound to take then, that the contract is for an interest existing at this future time, and that that time is to be the test as to the compensation and tribunal. Nothing in Morgan v. The Metropolitan Railway Company (6) militates against this view. As respects the other point, if the Court be against the present one, it is unnecessary to argue it.
WILLES, J.-No satisfactory distinction has been shewn on behalf of the defendant. The notice here incorporated both a notice to give up possession after six months, and a notice to treat, and since Morgan v. The Metropolitan Railway Co. (6) it must be taken-for it is a decision to that effect-that notice of intention to take possession after six months involves an obligation to give notice to treat, and it may be therefore that though this notice incorporates both, a notice to treat (7) 9 Hare 436; s. c. 21 Law J. Rep. (N.s.) Chanc. 731.
should be given, but this would be narrow ground on which to decide the case. My impression is, that the notice to treat relates to the time at which notice is given that the premises are to be taken compulsorily, which notice, whether given in the form of a notice to treat or a notice to quit, is equally binding. The notice of intention to take is not a notice that "we intend to take, if we should afterwards make up our minds to give a notice to treat, but not if we do not," but a notice that "we have made up our minds to take, and we give you six months' notice thereof by which you are bound by reason of the Act of Parliament." And whether the notice to treat be given first, or the notice to give up possession, the giving of the first notice is the date to which all questions of compensation and jurisdiction are to be referred. It cannot be denied, if Morgan v. The Metropolitan Railway Co. (6) be good law, that on receiving the six months' notice to quit, the occupier is entitled to leave and take all the steps requisite for leaving and getting a new house, and as to such matters it cannot be denied that any compensation he may legally be entitled to, is to be referred to a period before the expiration of the six months' notice to quit, and if so, why is not this to be so for all purposes? In applying the Lands Clauses Consolidation Act after section 34 of the Local Act, we must take the estate of the tenant when notice was given. If we apply this rule without reference to the provision as to giving up possession, there is no doubt that on January 28, 1869, the plaintiff had more than a year's interest, and section 34, which is not specifically directed to tenancies from year to year, but applies to all persons, and was passed in order on the one hand to prevent persons being suddenly disturbed, on the other to allow 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 only with the possession, no matter what may be the interest. The result, therefore, here is that the plaintiff had more than a year's interest, and is entitled to have compensation assessed by a jury.
KEATING, J.—I am of the same opinion. The time from which the plaintiff's interest is to be computed is the date of the notice. Here the notice embraces both a notice to treat and a notice of intention to take, but I agree irrespectively of this, and on the general question, that still the interest is to be determined by the date of the notice of intention to take, even if it does not involve a notice to treat, for Morgan v. The Metropolitan Railway Co. (6) decides that such a notice binds the defendant and compels him to go on and to take and compensate. The six months' notice relates only to the possession. It is said, that because such a notice is required, the period for determining the interest of the plaintiff is the end of the six months, but this is not so, for the notice of intention to take is binding. Section 34 merely relates to the possession, and contemplates that compensation will be assessed before the lapse of the six months, and if so, from what time is the interest of the plaintiff to be computed? Why, from the date of the notice of intention to take. The section means that the premises are not to be taken for six months, and in the meanwhile that the steps to assess compensation be taken.
BRETT, J.-It is clear that section 34 only relates to the possession, and leaves the question as to purchase and compensation, as it would be under the Lands Clauses Consolidation Act.
COLLIER, J.-Under the Lands Clauses Consolidation Act, the interest of a tenant is to be computed from the time of notice. The same holds here; the only difference is, that the time for taking is extended from twenty-one days to six months, but this makes no difference in principle, and the interest is still to be ascertained by the time of the notice.
Judgment for the plaintiff.
Attorneys-W. Blewitt, for plaintiff; T. J. Nelson, for defendant.
The defendant, a broker, was employed by the plaintiff to sell, and, as selling broker, sold for the plaintiff "to arrive certain goods on the terms that they were "fair average quality in opinion of selling broker." The buyers having on the arrival of such goods refused to take them, the defendant went and inspected them and gave his opinion that they were not of fair average quality according to the contract: -Held, that he gave such opinion as quasi arbitrator, and was therefore not liable to an action for any want of skill in forming it.
The defendant, who was a broker, was employed as such by the plaintiff to sell a quantity of Smyrna raisins for him, and the defendant accordingly sold them to Messrs. Hanson & Son, upon the terms of the following sold note:
"October 26, 1869.
"Sold by order and for account of Mr. D. Pappa to my principals, Messrs. S. Hanson & Son, to arrive, 500 tons black Smyrna raisins, 1869 growth-fairaverage quality in opinion of selling broker. To be delivered here in London, at 22s. per cent. duty paid. Shipment November or December, 1869. If not delivered, buyer to be allowed 1s. per cent. in bags. Bags included in weight. Customary allowances. Discount 1 per cent. prompt two months from date of final landing.
When the raisins arrived Messrs. Hanson objected to take them. The defendant then went and inspected the goods but he declined to pass them, giving his opinion that the raisins were not of fair average quality, according to the contract. The plaintiff was, therefore, unable to make the buyers accept the raisins, and was obliged to resell the same at a loss. He then brought the present action, in which he sued the defendant for not using due care and skill in sampling and examining the raisins in order to form a correct opinion of the same.
At the trial, which took place before Bovill, C.J., at the London sittings after Hilary Term, 1871, a question arose as to the construction of the contract, whether it meant that the raisins were to be of the fair average quality of the growth of 1869, or whether, though they were to be of the growth of 1869, they were to be of the fair average quality of raisins generally. It was admitted on the part of the plaintiff that the raisins of 1869 were of inferior quality, as compared with those grown in other years, and that if the contract meant that the
raisins were to be of fair average quality, taking the average of previous years, the raisins in question did not fulfil the contract, but it was contended on the part of the plaintiff that that was not the meaning of the contract, but that the meaning was only that the raisins should be of the fair average quality of 1869, and evidence was given to shew that the raisins which the defendant had reported against, were of the fair average quality of raisins grown in that year, and that he had not exercised competent skill in examining them. The learned Judge was of opinion that the contract meant that the raisins should be of fair average quality generally, and that the quality was not limited to the average quality of 1869. He was also of opinion that the defendant had acted in the matter as an arbitrator, and was, therefore, not responsible for want of skill in determining the quality of the raisins, and he accordingly nonsuited the plaintiff on both these grounds.
A rule nisi to set aside the nonsuit, and for a new trial, was granted if the learned Judge was wrong on both the grounds on which he had directed a nonsuit.
[As the Court expressed no opinion on the first of these grounds, which involved the question as to the construction of the contract, but confined their judgment to the latter ground, the arguments as to the construction of the contract are omitted in this report.]
Giffard, Murphy and Horace Smith shewed cause.-The action does not lie; the defendant, though a broker, acted as an arbitrator, and cannot be sued unless there was mala fides, for which there is no pretence that any existed here. The