High Court-Chancery Division.

premises, which was used as a shop, the defendant carried on his business, including that of a plumber and that of supplying builders' materials. In 1893, by the Manchester, Sheffield, and Lincolnshire Railway (Extension to London) Act, 1893, powers were conferred upon the plaintiff company to make and maintain a new railway to London, and to enter upon, take, and use (inter alia) the premises comprised in the lease. In the event, however, the site of the railway, as it was actually constructed, did not include those premises. In October, 1895, the defendant's lessor assigned the premises to the plaintiff company, subject only to the defendant's lease. After this the company, in the course of properly constructing their railway in pursuance of their statutory powers, dd some damage to the structure of the defendant's messuage. The defendant did not contend that the company were guilty of negligence in doing this, but he urged that the damage done to his buildings was a breach of the covenant for quiet enjoyment, which was now binding upen the company, and he brought an action against them for an injunction and damages. This action was then brought by the company against the defendant for rent due under the lease, and in it the defendant set up the lessor's covenant as a defence, and counter-claimed for damages for a breach of the covenant, the breach alleged being a serious obstruction of access to the defendant's premises, by means of the plaintiff company's hoardings, machinery, and carts, by which obstruction the defendant's use and occupation of the premises had been interfered with, and his business much damaged. The defendant claimed to be entitled to damages, and not to be obliged to have recourse to the remedy (if any) provided for him by section 6 of the Railways Clauses Act, 1845, and by tection 68 of the Lands Clauses Act, 1845. Byrne, J., held that what the plaintiff company had done was justified by their statutory powers, and that they were not liable to pay damages. He therefore dismissed the defendant's action (as to which there was no appeal), gave judgment for the plaintiff company for the rent claimed, and dismissed the defendant's counter-claim. Against the dismissal of the counter-claim the defendant appealed.

JOHNSTON BOYES. Stirling, J. 17th June.

VENDOR AND PURCHASER-AGREEMENT TO ENTER INTO A CONTRACT-
INJUNCTION-STATUTE OF FRAUDS (29 Car. 2, c. 3), s. 4.

This case raised a novel point-viz., whether, when at a sale by auction
the property has been knocked down to the highest bidder, but no
memorandum in writing of the contract has been executed, the purchaser
can rely on the parol contract between himself and the vendor in order to
obtain relief against the vendor's default in not entering into a contract in
writing. The application was by motion asking an injunction to restrain
the defendants from selling certain premises known as the White Hart,
South Mimms, Middlesex, to any person other than the plaintiff. The
plaintiff having learned that the property was to be sold by auction
arranged with her husband that he should attend the sale as her agent
and bid for the property. The husband accordingly attended the sale,
which was held on the 24th of May last in the City of London.
According to his evidence he commenced bidding at £4,500 and was
declared the purchaser of the property at £4,900. He immediately went
up to the rostrum of the auctioneer for the purpose of paying the
necessary deposit, when the auctioneer asked the name of his solicitor.
Upon his giving the name one of the defendants, the vendor, who was
present at the sale, said, "Oh, I know him," and then went to the other
end of the room. On coming back he inquired how the deposit would be
paid, and upon being told by cheque he thereupon said he could not
accept it or permit the plaintiff's husband to sign the formal contract,
and he then told the auctioneer not to accept the cheque nor to permit
the husband to sign the contract. The next day the plaintiff's husband
wired to the defendant that he would attend at his office and pay the
deposit in cash. He kept the appointment, and waited three hours, with
the necessary money, but the defendant did not come. The conditions of
sale under which the property was put up to auction provided (inter alia)
as follows: "1. The highest bidder shall be the purchaser, and if any
dispute shall arise respecting a bidding the property shall be put up again
at the last undisputed bidding. No person shall advance at any bidding
a less sum than shall be fixed by the auctioneers at the time of sale, and
no bidding shall be retracted. There will be a reserved price. The
vendors reserve the right to bid either by themselves or their agent.
2. The purchaser shall immediately after the sale pay to the auctioneers a
deposit of £10 per cent. on the amount and in part payment of his
purchase-money and sign the subjoined agreement to complete the
purchase according to these conditions." The subjoined agreement was
in the following form: "At the sale by auction made this day of the
property described in these particulars
was the highest
bidder for and was declared the purchaser of the said property at the
price of £ and he has paid to Messrs. Rodwell & Son, of Watford,
and A. W. Adams, of 98, Ladbroke-grove, Notting-hill, the vendors, the
Herts, as agents for and on behalf of William Osborn Boyes, of Barnet,
sum of £ by way of deposit and in part payment of the purchase-
the above conditions; and the said Messrs. Rodwell & Son, as the
money, and hereby agrees to complete the purchase in accordance with
vendors' agents, hereby confirm the said sale and acknowledge the receipt
of the said deposit." The defendants subsequently entered into a
contract to sell the property at a higher price to a firm of brewers, and
the plaintiff then commenced this action, in which she claimed (1) a
declaration that, by reason of her having been by her agent the highest
bidder at the sale, she was entitled to be regarded as the purchaser of the
property at the price of £4,900; (2) an order on the defendants directing
them to accept from the plaintiff or her agent the deposit of £10 per cent.
on the amount of the purchase-money, and to allow the plaintiff
personally or by her agent to sign a copy properly filled in of the
agreement annexed to the conditions of sale; and (3) an injunction.

of

THE COURT (LINDLEY, M.R., and CHITTY and COLLINS, L.JJ.) dismissed the appeal. LINDLEY, M.R, said that the plaintiff railway company, in the process of constructing their railway, had certainly done that which had caused a structural injury to the defendant's house. It was true also that they had, to a greater or less extent, obstructed the public thoroughfare. Trey had, as was the usual course in such cases, obstructed and used one half of the road, leaving the other half free for traffic. There was no doubt that they had a great number of horses and carts in front of the defendant's shop, and had in that way caused some harm to his business. They had, moreover, though only temporarily, obstructed a passage which led to his premises, and over which under the lease he had a right of way. It was that sort of thing which, according to the defendant's view, gave him a right of action for damages for breach of the Covenant for quiet enjoyment. The company's answer, of course, was that all they had done had been done in the exercise of their statutory powers and without any negligence, and that therefore the defendant's remedy, if any, was under the two Acts of 1845, the Railway Clauses Act and the I ands Clauses Act. That view had been adopted by the learned judge below, and it was, in his lordship's opinion, a complete answer. There were, however, observations in the learned judge's judgment which might be interpreted as meaning that he considered the covenant was gone and no longer binding. That was not so. The railway company had bought the reversion subject to the defendant's lease, and were bound, as any other assignee would have been, by the covenant for quiet enjoyment. So far the defendant's right was clear. But the question raised by this appeal was a question, not of right, but of remedy. The plaintiff company contended, and rightly, that no action could be brought against them for anything lawfully done under their Act; but it did not follow from that that the covenant had no effect, for a lessee, claiming compensation under the Acts might prove that, regard being had to the Covenant for quiet enjoyment, his land had been injuriously affected, though without such a covenant it would not have been so. Besides, if the company committed any breach of the covenant which their statutory powers did not authorize, for such a breach in action in the High Court would lie against them. That one consideration, that the plaintiff company, in doing the acts complained of, were acting under their statutory powers, was really sufficient to dispose of the appeal. His lordship desired, however, to add that in his opinion a mere temporary obstruction, which for a short time only made the access to the defendant's premises somewhat less convenient, could not be said to amount to an interference with his possession or his title, and was not a breach of a covenant for quiet enjoyment. The decided case most in the defendant's favour was Sanderson v. Mayor, &c., of Berwick-upon-Tweed (33 W. R. 67, 13 Q B. D. 547). But the language of Sir Edward Fry in that case must be interpreted in connection with the facts of the particular case, and these differed widely from those now to be dealt with. Here, in his lord-specific performance of an agreement by the defendant to accept a deposit ship's opinion, none of the acts done by the plaintiff company amounted to a breach of the covenant. But even if that were otherwise, and if a breach had been committed, the sufficient answer was that the acts complained of were done by the company in the exercise of their statutory powers, and a remedy must be found, if at all, under the Acts of Parliament. The appeal must therefore be dismissed.

CHITTY, L J., delivered judgment to the same effect.

COLLINS, LJ., concurred,—COUNSEL, Witt, Q.C., and Arnold Statham; Eve, Q.C., the Hon. E. C. Macnaghten, Q.C., and S. A. Sampson. SOLICITORS, Ford, Lloyd, Bartlett, & Michelmore; Cunliffes & Davenport.

[Reported by R. C. MACKENZIE, Barrister-at-Law.]

STIRLING J., refused to grant an injunction, and said that the action was of a very unusual character. It was framed on the view that there was not yet a complete contract for sale, but that a preliminary contract had been entered into which the plaintiff was entitled to have performed. In order that the court might grant an injunction, it was necessary for the plaintiff in such a case to show that he was the owner of the land whose rights would be interfered with by the defendant. The law was stated by Turner, L.J., in the case of Hadley v. The London Bank of Scotland (3 D. J. & S. 63). Having regard to that statement, the general rule in cases between vendor and purchaser was that the court would not interfere unless a valid contract was proved. But the plaintiff was not in the position of a purchaser. By her writ she asked for a declaration that she is entitled to be treated as the purchaser, and for and sign the contract. Various cases had been referred to in support of the contention of the plaintiff, that by reason of what took place such a preliminary agreement had been entered into. It might be that she would, at the trial, establish the existence of such a contract, but would it be in accordance with the practice of the court to grant specific performance of such a contract? His lordship had never met with such an action before-an action to enforce an agreement to enter into a contract for the sale of real estate. It was better for the court in such a case to leave the plaintiff to recover damages.-COUNSEL, Upjohn, Q.C., and Onslow; Jenkins Q.C., and Ingpen. SOLICITORS, T. Allingham; Sismey & Sismey.

[Reported by WM. SCOTT THOMPSON, Barrister-at-Law.]

HOPKINS v. HEMSWORTH. Kekewich, J. 22nd June. MORTGAGE-REALTY-EQUITABLE SUB-MORTGAGE OF LAND-EQUITABLE SUB-MORTGAGEES-PRIORITIES-NOTICE TO ORIGINAL MORTGAGOR,

that the defendant Hemsworth did not as second equitable sub-mortgagee
obtain priority over the plaintiffs, the first equitable sub-mortgagees, by
means of his having given notice to the original mortgagor of the deposit
of the title-deeds prior to notice being given by the first equitable sub-
Renshaw, Q.C., and J B. Matthews. SOLICITORS, Janson, Cobb, & Pearson,
for Hughes & Brown, Worcester; A. Hunt, for R A. Essex, Worcester,
[Reported by C. C. HENSLEY, Barrister-at-Law.]

Re BAXTER, BAXTER v. BAXTER.
WILL-CONSTRUCTION ESTATE DUTY - GIFT BY DECEASED NOT MADE
Romer, J. 24th June.

TWELVE MONTHS BEFORE HIS DEATH.

Summons. This was a case in which a testator died within twelve months of a voluntary conveyance of his real estate to A. The will contained the usual direction for conversion of testator's residuary estate, and further directed payment out of the proceeds of "all estate and other duties other than settlement estate duties." The question was by whom the estate duty to be levied and paid under the Finance Act, 1894 (see sections 1 and 2 (1) (c)), on the property comprised in the voluntary conveyance ought to be borne. It was contended for A. that the direction as to payment of duties in the will extended to the estate duty on the property conveyed by the testator, the effect of the Act being to join it to the testator's estate.

ROMER, J., held that there was no intention thewn by the will to make
A. a legatee to the amount of the duty in respect of the voluntary gift,
and that "all duties" in the direction to pay duties in the will meant all.
duties on property passing under the will, whether real or personal, but
did not include the duty which A. had to pay on the voluntary gift to
him.-COUNSEL, Willcocks; Levett, Q.C., and Ball; Farwell, QC., and
F. L. Maw. SOLICITORS, Satchell & Chapple; Makinson Carpenter & Son.
[Reported by J. F. WALEY, Barrister-at-Law.]

Re MORRIS, JAMES v. LONDON AND COUNTY BANKING CO.
Romer, J. 25th June.

BILL OF EXCHANGE-LIABILITY OF INDORSERS-PROOF IN BANKRUPTCY-
CONSOLIDATION OF SECURED DEBTS.

This case raised an important point as to the priorities of equitable sub-mortgagees.-COUNSEL, T. R. Warrington, Q.C., aud S. Dickinson; W. mortgagees of land by deposit of title-deeds. The facts were shortly as follows:-By a marriage settlement dated the 11th of December, 1861, certain property was conveyed to trustees to be held upon the trusts therein mentioned. One of the trustees died on the 24th of August, 1874, and on the 11th of June, 1875, the surviving trustee, J. S. Walker, also died, having by his will appointed his widow, Mrs. E. B. Walker, and the present plaintiffs, W. J. Hopkins and George Truefitt, executors of his will. On the 8th of December, 1875, a sum of £500, part of the trust funds comprised in the settlement, was paid off, and was in the hands of H., who acted as solicitor of thetrust. Mrs. E. B. Walker and the plaintiffs agreed that, pending the appointment of new trustees of the settlement, H. should retain the sum of £500 and should secure repayment thereof with interest at 5 per cent. per annum by deposit with them of certain mortgage securities belonging to him dated the 26th of October, 1875, and of the documents of title of the property comprised in the mortgage. On the 8th of December, 1875, H. accordingly deposited with Mrs. E. B. Walker and the plaintiffs a memorandum of deposit and the deeds and documents which were therein specified. The memorandum was to the following effect: "I have this day deposited with Mrs. E. B. Walker and Messrs. W. J. Hopkins and George Truefitt, the devisees in trust and executors of the will of the late J. S. Walker, Esq., deceased, who was the surviving trustee of the settlement the above deeds and writings as a security for the sum of £500 lately out on mortgage of property recently sold when such mortgage was paid off, and which sum of £500 remains in my hands pending the appointment of new trustees of the said settlement to be proceeded with forthwith. And I undertake at any time when called upon to repay the said sum of £500 with interest thereon at 5 per cent. per annum, and hereby indemnify the the said E. B. Walker, W. J. Hopkins, and George Truefitt from all liability in case any loss or deficiency should arise in respect of the investment of the said sum of £500 as above. Signed, H." Mrs. E. B. Walker died the 2nd of October, 1890. On the 29th of July, 1891, H. sent to Messrs. Hughes & Brown, the plaintiffs' solicitors, a draft appointment of a new trustee of the settlement for approval. The draft purported to be an appointment, by the life tenants of the property comprised in the settlement, of Henry Lucy Sowdon to be trustee of the Bettlement in place of J. S. Walker. H. at the same time represented to the plaintiffs through their solicitors, Messrs. Hughes & Brown, that he was authorized to act as solicitor for H. L. Sowdon, and that H. L. Sowdon had agreed and consented to accept and act in the trusts of the settlement. In June, 1892, the deed of appointment, and a transfer of the trust securities to H. L. Sowdon were executed, and on the 10th of June, 1892, the plaintiffs delivered the deeds and documents specified in the memorandum of deposit of the 8th of December, 1875, to H., as solicitor to Sowdon. As a matter of fact, H. L. Sowdon had neither given authority to H. to act as his solicitor, nor had he agreed and consented to accept and act in the trusts of the settlement, and he disclaimed the trusts of the settlements and the assurances vesting the property in him. On the 24th of September, 1892, H. deposited with the defendant H. R. Hemsworth the deeds and documents specified in the memorandum of deposit of the 8th of December, 1875, as an equitable security for a loan to him of £128 188. 1d. On the 12th of May, 1896, H, being insolvent, executed a deed of assignment of all his property to the defendant H. A. Leicester upon trust for the benefit of his creditors. In November, 1897, the plaintiff brought this action against Hemsworth and Leicester, claiming that it might be declared that the plaintiffs were entitled to a first charge upon the mortgage of the 26th of October, 1875, and on the documents of title relating to the property comprised therein, and on the moneys secured by the said mortgage, in priority to any claim by the defendants, to secure the sum of £500 lent by the plaintiffs to H. and interest thereon at 5 per cent. per annum. That an account might be taken of what was due to the plaintiffs in respect of the said charge, and that the said charge might be enforced by foreclosure or sale. That the defendant Hemsworth might be ordered to deliver to the plaintiffs the deeds and documents of title in his possession relating to the said mortgage security. The defendant Leicester disclaimed any interest in the property. The defendant H. R. Hemsworth in his defence stated that the original mortgagor, J. Woolton, died on the 5th of October, 1894, and that on the 20th of March, 1895, he gave notice to the executors of J. Woolton's will of the memorandum and deposit of the 24th of September, 1892, the plaintiffs at that time not having given notice of the memorandum of deposit of the 8th of December, 1875. He also alleged that the plaintiffs were guilty of gross and wilful negligence in handing the deeds to H., and further that the appointment of Sowdon as sole trustee of the settlement would, if carried out, have been a breach of trust and improper as not being within the power contained in the settlement for the appointment of new trustees, and also that the plaintiffs had failed in their duty by not inquiring as to the willingness of Sowdon to act as trustee, and as to the alleged authority to II. to act as his solicitor. He counterclaimed for a declaration that he was entitled as against and in priority to the plaintiffs to the full benefit of the memorandum and deposit of the 24th of September, 1892, and the charge thereby professed and intended to be created.

KBKEWICH, J., held that the plaintiffs had not been guilty of negligence so as to deprive them of their right to the declaration claimed, and that, as to the question of priorities, the rule laid down by Stirling, J., in Re Richards, Humber v. Richards (39 W. R. 186, 45 Ch. Ď. 589) applied, and

The defendants were at the date of the creditor's deed hereinafter mentioned, holders of four bills of exchange hereinafter referred to as A, B, C, and D. A, B, and C were for £2,000 each, and D for £1,000. A and C were drawn by Job & Co, in Newfoundland, upon Job Bros., in England, payable to order of the Commercial Bank of Newfoundland, and were accepted by Job Bros. B and D were drawn by Goodridge in Newfoundland upon Bennett in England, payable in like manner as A and C, and were acceped by Bennett. A, B, C, and D were severally endorsed by the said bank to Prowse, Hall, & Morris, and by them to R., and by R. to the defendants, all in the ordinary course and for value. The said bank, Job Bros., Bennett, and Goodridge became bankrupt or entered into liquidation, and the defendants proved against their respective estates for the amounts due upon the bills to which they were respectively parties. In September, 1896, R. paid the defendants in respect of the said four bills £615 odd, forming part of the estate of Prowse, Hall, & Morris, which came into the hands of R., and the propriety of such payment was not now disputed. The plaintiff was the trustee of a creditors' deed entered into in April, 1895, by Morris, the debtor, who was the surviving partner of the firm of Prowse, Hall, & Morris. The deed in effect provided for the distribution of that firm's assets as in bankruptcy among the assenting creditors who would have been entitled to prove if the debtor. had been adjudicated bankrupt as therein mentioned. The defendants claimed under the said deed against the estate of the firm for the amount of the said four bills of exchange with noting expenses, after deducting the said sum of £615 odd. Upon their proofs against the various parties to the said bills, the defendants received amounts in respect of the bills B and D exceeding the amounts due on such bills, with noting expenses and interest, by £373 odd and £192 odd respectively. The defendants had not received payment in full of either of the bills A and C, and the whole amount received by them was less than the whole amount due in respect of the said four bills. Under these circumstances. the plaintiff claimed that the defendants were not entitled to any further dividends from the estate of Prowse, Hall, & Morris in respect of bills B and D, and that the said sums of £373 and £192 should be repaid by the defendants to the plaintiff, and that the defendants should be ordered to deliver up the said bills to the plaintiff. The plaintiff had paid the defendants a dividend from the estate of Prowse, Hall, & Morris in respect of the bills B and D, but did not know at the time of such payment how much had been received by them in respect of the said bills. ROMER, J., had no doubt that in bankruptcy it would primâ facie be right for a creditor who had several debts due to him from a bankrupt to. prove for the lump sum without distinguishing the debts. But if there were different rights over with respect to some of the debts as against third parties, or different securities given by the bankrupt for the different debts, it would be the duty of the trustee to require the person proving to specify the particular debts, or the security for each debt: see In re Smith and Logan (2 Manson 70), where, however, the trustee was held to be bound by his consent to the proof of different secured debts as a whole. Applying the principle of that case here, the trustee had different rights in respect of the four bills. In respect of two of those bills the creditor had been paid more than twenty shillings in the £. Clearly he could not claim as against the persons who in the aggregate were liable on either of those bills to retain the surplus, and attribute it to payment of the debts on the other bills, such persons being different from the persons who in the aggregate were liable on the other

bills. They must, as between themselves, bave had a right to require
between them payment of what the creditor had received over twenty
shillings in the £ on the whole. Who, then, as between the persons in the
aggregate liable on those bills, was entitled to receive the overplus? It
turned out in this case to be the plaintiff, because all the other persons
who on the other bills were overpaid were primarily liable as against the
plaintiff. His lordship therefore held that the plaintiff was entitled in
respect of the surplus received by each creditor in respect of each bill to
have that surplus handed back to him, and made the order as asked.-
COUNSEL, Levett, Q.C., and F. Thompson; Neville, Q.C., and Muir Mackenzie.
SOLICITORS, Simpson, Cullingford, & Co.; Harries, Wilkinson, & Raikes.
[Reported by J. F. WALEY, Barrister-at-Law.}

High Court-Queen's Bench Division.

Re THE SHEERNESS URBAN DISTRICT COUNCIL.

Ex parte SMITH
AND DORING. Div. Court. 23th June.
THEATRE-LICENCE-RESOLUTION THAT NO SUCH LICENCE SHOULD BE GRANTED
UNLESS APPLICANT UNDERTOOK NOT TO APPLY FOR A REFRESHMENT LICENCE
-VALIDITY OF SUCH GENERAL RESOLUTION - POWER OF LICENSING
AUTHORITY TO ATTACH SUCH CONDITION TO EVERY GRANT WHILE RESOLU-
TION REMAINED UNRESCINDED.

included refreshment bars.

This was an application for a rule nisi for a mandamus to the Sheerness Urban District Council, as the licensing authority for that district, to shew cause why they should not hear and determine an application for a theatrical licence. The building for which the licence was required was formerly known as the Victoria Hall, where variety entertainments were given. The present applicants acquired the freehold of these premises and prepared plans for turning it into a regular theatre. The plans were approved and the necessary alterations carried through. The plans When the application was made for a theatrical licence there was no opposition and the licence would have been granted had not the town clerk called attention to the fact that some time previously the district council had passed a series of general resolutions with regard to places of amusement within their district, one of which was to the effect that no licence to carry on public amusements should be granted to any applicant unless he undertook not to apply for a licence to sell spirits, liquors, wine, ale, beer, cider, perry, or tobacco on the premises. The council thereupon said they could not grant the theatrical licence except with this condition. A motion was made to rescind the resolution but was lost. Counsel submitted that on the authority of Reg. v. Justices of the West Riding of Yorkshire (1896, 2 Q. B. 386), the passing of a general resolution applicable to every case was ab initio bad since it prevented the council from exercising the discretion vested in licensing authorities by the statutes. The case of Reg. v. Sylvester (31 L. J. M. C. 93) was also discussed. [PHILLIMORE, J.-What are licensing authorities to do? If they decide each case on its merits they are accused of being partial and capricious. If they pass a resolution and stick to it they are accused of having acted ultra vires, because they acted under a rule that tied their hands. It appears that the council had before them the advisability of rescinding this resolution and by a majority they decided not to do so.] Counsel pointed out that in this case the licensing authority was a body elected yearly by the ratepayers, and that the resolution had been passed before they came into office. THE COURT (DAY and PHILLIMORE, JJ.) held that the rule ought not to be granted. The council had passed a resolution for their guidance, and in order that they might act with uniformity, and they were bound by it so long as it remained in force. They could rescind it at any time. It was not a case in which the court ought to interfere.-COUNSEL, R. G. Glenn. SOLICITOR, J. T. Wilkinson.

The vestry prepared a scheme and sent it in for the sanction of the London County Council in 1892. The scheme was not approved, and no further steps were taken by the vestry in the matter, who submitted that they had done all that they were bound to do. The following cases were cited by counsel against the rule being made absolute, and in support of his contention that there had been "no refusal" to consider the question on the part of the vestry: Reg. v. Bristol and Exeter Railway (4 Q. B. 162), Rex v. Brecknock Navigation Co. (3 A. & E. 217), Ex parte Champ (40 J. P. 756), Reg. v. Tottenham Local Board (9 Times L. R. 414), Reg. v. Vestry of St. Luke's, Chelsea (1 B. & S. 903), Glossop v. Heston Local Board (12 C. D. 102), Reg. v. St. Giles' Vestry (66 L. J. Q. B. 307). Counsel in support of the rule contended that the mischief was a local mischief, which must be dealt with by the local authority. Part of it was caused from the fact that the Hornsey sewage flowed down through the main sewer. The vestry had made no effort to improve or modify the plan submitted in 1892 to the London County Council so as to obtain the necessary sanction for the carrying out of the works.

THE COURT (DAY and PHILLIMORE, JJ.) held that the rule must be made
absolute. In 1891-2 the vestry had taken some steps in the matter, but
they thought that the vestry ought to prepare fresh plans and make a
formal application to the county council, so that the responsibility, if the
present state of things continued, should be left with them.-COUNSEL,
Danckwerts and Micklem showed cause; C. A. Russell, QC., and Lochnis
supported the rule; Macmorran, Q.C., held a watching brief for the
Hornsey District Council. SOLICITORS, A. M. Bramall; Beale & Co.;
Leonard Tatham.
[Reported by ERSKINE REID, Barrister-at-Law.]

ALLEN AND OTHERS v. THE VESTRY OF THE PARISH OF FULHAM.
Div. Court. 17th June.

METROPOLIS MANAGEMENT ACT, 1855 (18 & 19 VICT. c. 120), s. 105-"NEW
STREET"-METROPOLIS MANAGEMENT AMENDMENT ACT, 1862 (25 & 26
VICT. c. 102), s. 77-EXPENSES OF PAVING NEW STREETS-LIABILITY OF
OWNERS OF LAND AND HOUSES.

This was a special case stated by R. O. B. Lane, Esq., stipendiary magistrate, sitting at the West London police-court, upon the hearing of three summonses, issued at the instance of the Vestry of Fulham under section 226 of the Metropolis Management Act, 1855, that the appellants had refused to pay certain amounts apportioned upon premises belonging to them respectively in respect of the estimated expenses of paving a portion of Wandsworth Bridge-road under the provisions of section 105 of the Metropolis Management Act, 1855, and section 77 of the Metropolis Management Amendment Act, 1862. The question raised was whether this portion of the road was a new street" within the meaning of the above Acts so as to enable the vestry to apportion the expenses on the frontagers. Wandsworth Bridge-road and Wandsworth Bridge were made pursuant to the Wandsworth Bridge Act, 1864 (27 & 28 Vict. c. ccxxxviii). By section 62 of that Act it was enacted that the road when completed should be deemed a public highway and should be repairable by the Fulham District Board of Works. The road was made in 1873 upon and through agricultural land, and after it was made it continued to be bounded by market gardens on each side. The company that constructed the road then applied to the Fulham District Board to take over the maintenance and repair of the road, but that body declined to do so on the ground that it had been made so inefficiently as to be impracticable as a road. Ultimately, however, by an agreement dated September, 1876, the board agreed with the company in consideration of the sum of £1,750 paid by the company to the board to complete and put in repair the said road, and they undertook to take over the road and to exonerate the company from all liability in respect of the future repairs thereof. In 1877 the board made up the carriage-way with flints rolled in over a foundation of hard core, that being the method adopted throughout the parish in the case of highways not being house-built streets. In the case of house-built streets where traffic was heavy they were made up with granite-i.e., macadamized. Practically nothing was done in the way of making up the footways of the road. No channelling or kerbing was done, that work not having been allowed for in the £1,750 received from the company. In making up new streets under section 105 of the Act of 1855 the Board of Works at that time invariably insisted on channelling and kerbing. As regards the work done in 1877 and 1878 the magistrate found as a fact that, except for the repaired in a permanant manner and in the same mode as new streets omitted channelling and kerbing, the carriage-way was made up and with a similar amount of traffic were dealt with at that pericd under the said 105th section. There were no buildings upon the land adjoining the road until 1890. In that year houses were erected on the east side. In 1896 houses were built on the west side. On the 24th of February, 1897, In this case a rule nisi had been obtained calling upon the vestry of the vestry passed a resolution that the road in question should be taken to St. Mary, Islington, to shew cause why a writ of mandamus should not and paved under the provisions of 18 & 19 Vict. c. 120 and 25 & 26 Vict. c. issue directing them to prepare a scheme of such sewers or such diver- 102, and that the estimated costs of the said paving works should be sions or alterations of sewers and works as might be necessary to con- apportioned upon the owners of the houses or land abutting on the street. struct for effectually draining their parish and district and submit a plan The estimate made provision for the paving of the carriage-way with of the sewers to the London County Council. The motion was made on wooden blocks laid upon a concrete foundation. Demand was made by behalf of the Midland Railway, the Great Eastern Railway, and the the vestry of the appellants for payment of the amounts apportioned Tottenham and Hampstead Junction Railway Companies. The drainage upon them respectively, and, default having been made, summonses were system of part of the vestry's district was inadequate, and whenever there issued. Upon the hearing it was admitted on both sides that (subject was a heavy fall of rain the lines of railway became flooded and the to a question of the competency of the vestry to pave with wood at the traffic was interrupted. The attention of the vestry had been called to expense of the frontagers) the decision depended upon the date at which the fact some years ago, but they had done nothing to remedy the state new street." The magistrate found that it was of affairs. It was contended in support of the rule that the vestry was not originally formed or laid out for building as a new street. liable under section 69 of the Metropolis Management Act, 1855, to main- It was contended on behalf of the vestry that the said road became for the tain and provide proper sewers, and an application was made by the first time a new street when buildings were erected upon the land adjoinrailway companies to the vestry in 1891 and on subsequent occasions.ing it, and that the vestry had, when that was done, power to require the

[On the 29th inst. Mr. R. G. Glenn appealed in this matter to the Court of Appeal, and that Court (LINDLEY, M.R., and CHITTY, L.J.) reversed the decision of the Divisional Court, and granted a rule as asked.]

[Reported by ERSKINE REID, Barrister-at-Law.]

REG. v. VESTRY OF ST. MARY, ISLINGTON. Ex parte WILLIAMS, ON
BEHALF OF THE MIDLAND RAILWAY CO. AND OTHERS. Div.

Court. 28th June.

LOCAL GOVERNMENT-LIABILITY OF LOCAL AUTHORITY TO EFFECTUALLY

DRAIN THEIR DISTRICT-MANDAMUS DIRECTED TO VESTRY TO SUBMIT
PLANS TO LONDON COUNTY COUNCIL-METROPOLIS MANAGEMENT ACT, 1855
(18 & 19 VICT. c. 120), ss. 69, 128–METROPOLIS MANAGEMENT AMEND-
MENT ACT, 1862 (25 & 26 VICT. c. 102), s. 45.

the said road became a 66

THE COURT (LINDLEY, M.R., and CHITTY and COLLINS, L.JJ.) dismissed the appeal.

LINDLEY, M.R., said that the order must be left alone, as it was substantially correct. There had obviously been a blunder and a miscarriage of justice. The appeal must be dismissed, but without costs. Appeal dismissed without costs.-COUNSEL, Warrington, Q.C., and Stuart Smith; P. Ogden Lawrence, Q.C., and Geo. Henderson. SOLICITORS, Mear & Fowler; Richard Furber. [Reported by W. SHALLCROSS GODDARD, Barrister-at-Law.]

NEW ORDERS, &c.

adjoining owners to pave it. It was also contended that wood paving was "paving within the meaning of the Acts of 1855 and 1862. It was contended on behalf of the appellants that it was a "new street" when it was made by the company, and that, it having in 1877 and 1878, pursuant to the requirements of the vestry, been, with the exception of the flagging of the footpaths and of the channelling and kerbing of the carriage-way, as well paved as streets with similar traffic were then required to be paved prior to their being taken over by the vestry under section 105 of the Metropolis Management Act, 1855, the vestry could not now say that it was not then a street. It was also contended that, assuming the vestry had power to require the road to be paved, it had no power to require the carriage-way to be be made up at the expense of the adjoining owners with wooden blocks laid on a concrete foundation. The magistrate was of opinion (1) that the road had not become, and was not in 1877 or 1878, a new street within the meaning of section 105 of the Act of 1855 and section 77 of the Act of 1862; (2) that it became a new street for the first MASTER AND SERVANT. WORKMEN'S COMPENSATION' time after the erection of houses therein, and was a 68 new street" within the meaning of the Acts on the 24th of February, 1897; (3) that the vestry was not prevented by anything contained in the special Acts or by anything it had done previously to the 24th of February, 1897, from requiring the said road to be paved under section 105 of the Act of 1855; (4) that wood paving was "paving" within the aforesaid Acts; and he accordingly ordered the appellants to pay the sums respectively charged against them. The question for the opinion of the court was whether these findings and decision were right in law. During the course of the arguments the following cases were cited: St. Giles, Camberwell v. Hunt (56 L. J. M. C. 65), Pound v. Plumstead Board of Works (20 W. R. 177, L. R. 7 Q. B. 183), Robinson v. Local Board of Barton (32 W. R. 249, 8 App. Cas. 798), St. Giles, Camberwell v. Crystal Palace Co. (1892, 2 Q. B. 33), Davis v. Greenwich Board of Works (1895, 2 Q. B. 219), St. Mary, Battersea v. Palmer (45 W. R. 110; 1897, 1 Q. B. 220), and Arter v. Hammersmith Vestry (45 W. R. 398; 1897, 1 Q. B. 646).

THE COURT (DAY and RIDLEY, JJ.) dismissed the appeal. DAY, J., in giving judgment, said there was some difficulty in this case owing to the somewhat peculiar history of this section of the Wandsworth Bridge-road. In 1876 the vestry took over the road from the bridge authorities, and subsequently made it up and kept it in repair. It was then in good condition for light traffic, and remained so until 1897, when the road having been built upon and the traffic become much heavier, it became necessary to put the road in thorough repair, and make it meet the requirements of modern streets. The stipendiary magistrate had found that the road had become a "new street." That was a question of fact for him to determine, and not for this court. It was not a question which the court could review. There was no question of law on which the court could say the magistrate had gone wrong, and his decision ought therefore to be affirmed.

66

RIDLEY, J., in concurring, said he thought the view the magistrate had taken was a correct one. It had been decided in a number of cases from the date of Pound v. Plumstead Board of Works that a carriage-way which had been kept in repair by the vestry as a highway might, when houses were erected more or less continuously along the sides of it, become a new street." Generally speaking the correct guide as to whether a road was a "" new street was if houses had been built on both sides, though that was not always necessarily so. The magistrate had to deal with the facts of the particular case, and he had found this road was a "new street." His decision was right, and must be upheld. Appeal dismissed.COUNSEL, Macmorran, Q.C., and Glen; Macaskie. SOLICITORS, Walter M. Willcocks; T. Blanco White.

[Reported by E. G. STILLWELL, Barrister-at-Law.]

Solicitors' Cases.

--

Re RICHARD FURBER. C. A. No. 2. 22nd and 23rd June. SOLICITOR COSTS - TAXATION - OBJECTIONS, TIME FOR - CERTIFICATE ALTERATION OF DATE-R. S. C., 1883, ORD. 65, R. 27. Appeal from a decision of Kekewich, J. On the 15th of March, 1897, the client, Miss Watkins, obtained an order for the taxation of the bill of Richard Furber, who had acted as her solicitor, the question in dispute being as to whether the solicitor was entitled to charge the scale fee for certain business which he had transacted for the client. The parties went before the taxing-master on the 19th of July, 1897, when he intimated that he should allow the charges. The client carried in objections to that allowance, and at the next appointment before the taxing-master-viz., on the 20th of November, 1897, the taxing-master sustained the client's objections, and disallowed the items in the bill of costs. The solicitor did not carry in objections to that disallowance, nor did he ask the taxing-master to state his reasons for the disallowance. The client asked the taxing-master to state his reasons for allowing her objections, which he did when he issued his certificate on the 31st of March, 1898. On the 5th of April, 1898, the solicitor took out a summons to vary the certificate. The summons came on for hearing on the 26th of May last, and was dismissed with costs on the ground that the solicitor was then too late, he not having previously objected to the disallowance of his charges. The solicitor then moved the court to set aside the certificate, and Kekewich, J., made an order setting aside the certificate, and directed it to be re-signed and dated as at a later date, in order to allow the solicitor to carry in his objections to the disallowances. Miss Watkins, the client, appealed, and urged that as the solicitor did not carry in objections to the taxation, the certificate was conclusive, and the taxation could not now be reviewed.

ACT, 1897.

THE WORKMEN'S COMPENSATION RULES, 1898. DATED MAY 27, 1898. Notice to parties against whom Indemnity claimed under section 4 or scetion 6, or

otherwise.

19. Notice of claim to indemnity under section 4 or section 6, or otherwise. Form 13.] Where a respondent claims to be entitled under section 4 or section 6 of the Act or otherwise to indemnity over against any person not a party to the arbitration, he shall five clear days before the day fixed for proceeding with the arbitration, file a notice of his claim, according to the form in the Appendix; and the registrar shall seal such notice and deliver it to the respondent, who shall serve the same, together with a copy of the applicant's request and particular,s and of the notice served on the respondent under Rules 14 and 15, upon the person against whom such claim is made; and the provisions of Rule 15 shall apply to such service. 20. If person served makes default_in_appearing, he is to be deemed to admit validity of award against respondent.] If any person served with a notice under the last preceding rule (hereinafter called the third party) desires to dispute the applicant's claim in the arbitration as against the respondent on whose behalf the notice has been given, he must appear before the judge on the day fixed for proceeding with the arbitration, or on any day to which he may have received notice from the registrar that the arbitration has been adjourned or postponed; and in default of his so doing he shall be deemed to admit the validity of any award made against such respondent, as to any matter which the judge has jurisdiction to decide in the arbitration as between the applicant and the respondent, whether such award is made by consent or otherwise.

21. Application to judge for directions as to conduct of arbitration.] (1) The third party or the respondent may apply at or before the arbitration to the judge for directions; and the judge, upon the hearing of the application, may, if it shall appear desirable so to do, give the third party leave to resist the claim of the applicant against the respondent upon such terms as may be just, or to appear at the arbitration and take such part therein as may be just, and generally may give such directions as he shall think proper. (2.) If the third party obtains leave to resist the claim of the applicant against the respondent, the judge shall have the same power to award costs as between the applicant and the third party as he has to award costs between the applicant and the respondent.

22. Judge how far empowered to decide questions as to liability of third party.] (1.) Nothing in these Rules shall empower the judge to decide (otherwise than by consent) any question as to the liability of such third party to indemnify the respondent, or to make any award in favour of the respondent against such third party, or to make any further or other order than that the third party shall not be entitled in any future proceedings between the respondents and such third party to dispute the validity of the award as to any matter which the judge has jurisdiction to decide in the arbitration as between the applicant and the respondent.

(2.) (Conf. Order XI., Rule 2.) ] Provided that, with the consent of the respondent and the third party,

(a.) If the arbitration results in an award in favour of the applicant, or is finally decided otherwise than by an award, and the third party admits his liability to indemnify the respondent, the judge may, on application made to him at or after the hearing of the arbitration or the final decision thereof, make such award as the nature of the award may require in favour of the respondent against the third party; provided that execution thereon shall not be issued without leave of the judge or registrar until after the satisfaction by the respondent of the award against him, or the amount recovered against him; or

(b.) (Conf. Order XI., Rule 3.)] The judge may, on an application for directions, order any question as to the liability of the third party to make the indemnity claimed to be settled, as between the respondent and the third party, by arbitration after the arbitration between the applicant and the respondent, and may on such subsequent arbitration make such award as the nature of the case may require in favour of either party against the other.

(c.) (Conf. Order XI., Rule 4.)] In any such case the judge may decide all questions of costs as between the respondent and the third party, and may order either of such parties to pay the costs of the other (including any costs payable by such party to any other party to the arbitration), or give such directions as to such costs as the justice of the case may require.

23. Claim to indemnity as between respondents. (Conf. Order XI., Rule 5.)] (1) Where a respondent claims to be entitled to indemnity against any other respondent, a like notice may be issued and the like procedure may be adopted for the determination of questions between the respondents as