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accordingly asked the country firm for the plaintiffs receipt for this sum, and the plaintiff signed the receipt without having received the money. Two sums, amounting together to about £140, were paid out for costs to the defendant, and these sums he retained in his hands to satisfy costs‘ due to him from the country firm, with knowledge that the plaintiffs fee had not been paid. The plaintiff then brought this action to recover the amount of his fee as money received by the defendant on the plaintifi’s behalf. The contention on his part was that the circumstances were sufficient to establish an employment of the defendant by the plaintifi to receive the fee and hand it over to the plaintiff. That a privity of contract can be created between principal and sub-agent is clear upon the authorities, of which the well-known case of De Buuehe v. Alt (8 Ch. D. 286) may be taken as an example. But in the present case there was no necessity for implying a contract between the plaintiff and the defendant, and the court refused to make the implication. Assuming the absence of any privity of contract between the parties to the action, the defendant was doing no more than asserting the ordinary lien of a London agent against the country solicitor, which was supported in Lawrence v. F leteher (I2 Ch. D. 858), Robbins .v. Fennel! (ll Q. B. 248), and other cases. The cases—such as Robbins v. Illsath (ll Q. B. 257) and .E'a: parte Edwards (7 Q. B. D. 155)—in which a London agent has been ordered to pay over to the lay client sums recovered in an action and claimed to be retained to satisfy a debt from the country solicitor, are distinguishable ; the claim in Hannaford v. Syma was founded upon an alleged privity of contract which was not established to the satisfaction of the court: the cases last referred to were instances in which the summary jurisdiction of the court over its own oflicers was exercised under special circumstances, in which privity of contract was not a material consideration.

Smcs THE Local Government Act, 1888, became law, the licensing of theatres has been transferred from justices to the county councils. It is quite clear, however, that in exercising this power, the council (or the committee or district council to which this power may be delegated) must use the same judicial discretion that the law requires from licensing justices. With regard to the sale of intoxicating liquors, the proprietors of theatres are not under the Licensing Act, 187 2, and they may obtain an excise licence to sell liquor without producing a licence from justices. It is, therefore, plainly within the intention of the Legislature that such proprietors should sell liquor as a matter of course. The High Court has, however, held in Reg. v. County Council of the lVest Rz'a’z'n_q (44 W. R. 650; 1896, 2 Q. B. 386) that a county council may, in the exercise of their discretion, attach to the grant of a theatre licence a condition that the grantee shall not apply to the revenue authorities for a licence to sell liquor in his theatre. Is it, then, intro tires for a local authority to adopt a standing resolution not to grant any theatre licences except with such a condition attached ? An attempt was made a few days ago to induce the Court of Appeal to‘ answer this question in the case of Darling v. The Sheerness Urban District Council. The attempt, however, was not successful, as the court came to the conclusion that the local authority had exercised their discretion properly upon the merits of the case and upon a full consideration of the facts, and that it was not necessary to consider whether the resolution was ultra vireo. There can be little doubt that if it had been necessary to consider the question the court would not have approved of the resolution. In Reg. v. Sylvester (26 J . P. 151) it appeared that the licensing justices of the borough of Abingdon had adopted a resolution not to renew the licences of those publicans who refused to take out excise spirit licences. On appeal, the High Court held that the justices were not bound to refuse a licence because of this resolution, and clearly intimated that it is improper for justices to make resolutions which tend to fetter the discretion with which each particular case should be treated. The Excise Act, 1885, gave to the proprietors of theatres and other places of public entertainment the privilege of selling liquor without any further authority than an excise licence. This privilege is expressly preserved to theatres only, and not to any other places of entertainment, by the Licensing Act, 1872.

"Th; Legislature, therefore, clearly contemplates that liquor


should be sold in theatres as a general rule. If there is in any particular case good reason why liquor should not be so sold, then the local authority has power to attach to the grant of a theatre licence a condition that liquor shall not be sold. But it is, we submit, improper for a local authority to adopt a resolution pledging themselves in all cases to take a course different from that approved of by Parliament ; and if a local authority acts merely on such a resolution, and not upon a proper consideration of the facts in each case, the court will, we have little doubt, hold that the discretion entrusted to such authority has not been properly exercised.

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In THE cass of Reg. v. The Judge of the Northallerton County Court an important question was raised—namely, whethera eertiorari will lie to quash an order of a county court sitting in bankruptcy where such court acts without jurisdiction. It, however, became unnecessary to decide this question, as the court (Wsrour and Daanmo, JJ.) were of opinion, having regard to all the facts of the case, that there was jurisdiction to make the order complained of, and that therefore it would be useless to issue a eertzoraz-1?, assuming such a remedy to be available, as to which no opinion was expressed. It is, however, submitted that as a eertforari can only be directed to an inferior court, it cannot, under any circumstances, go to a county court sitting in bankruptcy, such a court being placed on the same level as the High Court by the Bankruptcy Act, 1883, which provides that a county court shall, for the purposes of its bankruptcy jurisdiction, in addition to the ordinary powers of a county court, have all the powers and jurisdiction of the High Court (section 100), and shall not be subject to be restrained in the execution of its powers under the Act by the order of any other court, nor shall any appeal lie from its decisions, except in manner directed by the Act itself (section 102 (2)). This view derives strong support from the very recent case of Re The Mw Par Console (Limited) (No. 2) (46 W. R. 369; 1898, 1 Q. B. 669), where it was held by the Court of Appeal that, as a county court judge is, under the Companies Winding-up Act, 1890, s. 1, sub-section 6, invested for the purposes of the winding-up jurisdiction with the powers of the High Court, a prohibition to him will not he granted.

A macssr correspondent, “ Solicitor (S.E.),” in his letter (ante, p. 632) takes exception to the decision of the Divisional Court ll]. Bailey v. Watson (unto, p. 572) with regard to the costs of an action of contract remitted from the High Court to the county court, under section 65 of the County Courts Act, 1888 (51 & 52 Vict. c. 43). There, the claim being for £44, and judgment under order 14 having been obtained in the High Court for £27 18s. 11d. and in the county court for £2 Os. 6d. (the balance of the claim having been abandoned prior to the remitting order), costs were allowed in the county court on the £5 scale only, because, though the sum recovered in the action exceeded £20, yet never more than £2 Os. 6d. was in dispute in the county court. It is submitted that this decision cannot be reconciled with the previous case of Keeble v. Bennett (42 W. R. 539; 1894, 2 Q. B. 329) where it was held that, in order to determine the scale of costs applicable in the county court to a remitted action, the amount recovered in the High Court must he added to that recovered in the county court. Moreover, it ignores the fact that now only the whole action can be remitted by the High Court to the county court (Yearly County Court Practice, 1898, p. 45; County Courts Act, 1888, ss. 65, 66) as distinguished from a mere issue (other than one in interpleader), and that the remitting order operates to remit the whole action whether at the time it is made the whole or a portion only of the claim be in dispute (see Keeble v. Bennett, supra). It would appear, therefore, that in such a case as that under consideration the costs should have been taxed on the B. scale (above £20 and under £50) and not on the scale applicable where only £2, and less than £5, has been recovered.


The Companies Act (1867) Amendment (No. 2) Bill was down tor second reading in the House of Lords on Friday.



W1; called attention some months ago (ante, p. 376) to the Bill promoted by the Incorporated Law Society for amending that unhappy piece of legislation known as section 25 of the Companies Act, 1867. It may be surmised that in its original form the Bill was not acceptable to certain authorities, and in its passage through the House of Commons it has been completely redrafted; but the principle of the Bill—the possibility of obtaining relief against the consequences of failure to file a sufficient contract—has been preserved, and the Bill has now been sent to the House of Lords.

It is needless to do more than refer very shortly to the inconvenience and injustice to which section 25 has given rise. The section provides that “every share in any company shall be deemed and taken to have been issued and to be held subject to the payment of the whole amount thereof in cash, unless the same shall have been otherwise determined by a contract duly made in writing, and filed with the Registrar of Joint-Stock Companies at or before the issue of such shares.” ‘Notwithstanding the grammatical ineptitude of this provision, its meaning is sufliciently plain, and, whatever good faith there may have been in the issue of shares for e. consideration other than cash, it renders the shareholder liable to pay in cash the full nominal value unless he has complied strictly with its requirements. The result would have been less serious had it been practicable always to file the actual contract under which the shares were issued, but commonly this has been found inconvenient, and the practice has grown up of filing subsidiary contracts, although to the sufficiency of these there were serious technical objections. The risk which is thus run has been brought into prominence by the recent decision of the Court of Appeal in Re K/aaraskhoma Exploring Syndicate (46 W. R. 37; 1897, 2 Ch. 451), followed by the decision of KEKEWICH, J ., in Re 1Ia_1/nard's (L1'mz'leri) (ante, p. 308), and the result has been to throw grave doubt upon the validity of many of the issues of paid-up shares which have taken place of recent years.

It is clear enough that section 25 proceeded upon an entirely wrong principle. The object is to give persons interested in a company, whether as intending creditors or otherwise, an opportunity of knowing whether the subscribed capital has found its way into the cofiers of the company in cash, or whether it is wholly or partly represented by property which the company has taken over. For this purpose, however, what is really required is not the contract under which shares have been issued, but a plain statement from the ofiicials of the company as to the terms of issue. This is recognized by the Board of Trade, and in the Companies Bill which has been for the last few years before the House of Lords it is proposed to repeal section 25 altogether, and to enact instead that, within seven days after any allotment of shares, the company shall send to the registrar a return of the allotments, stating, inter alia, “ the number and amount of shares allotted as fully or partly paid up otherwise than in cash, and in the latter case the extent to which they are so paid up, and in either case the considers.~ tion for which such shares have been allotted.” But although the enactment of this clause would put the matter on a proper basis with respect to the future allotment of shares, no provision is made by the Bill for granting relief against past failures to comply with section 25.

The Bill of the Incorporated Law Society, as originally introduced, proposed to efiect the same change on this point as the Government Bill, and at the same time to supply its deficiencies. By clause 1, section 25 of the Act of 1867 was to be repealed. Clause 2, to state it shortly, provided, as to past transactions, that when a contract had been filed with the registrar with a view to complying with section 25, it should be no objection that it did not sufiiciently disclose the consideration for the issue of the shares, or that it only contained a part of the contract relating to the issue of the shares, or that it did not in law constitute such a contract as the section required. It was thus intended to meet the objections to which the subsidiary contracts which have frequently been filed are liable. The consideration is not fully disclosed in the filed document itself, but is only identified by reference to the principal contract (Re Khanuk

flzoma Synrlz7eate,- Re Mayna-rd's (L{mited)),' and it is doubtful, imoreover, whether the ordinary subsidiary agreement is a ,contract at all. The validity of past transactions being thus ’ secured, the Bill went on to provide, in clause 3, for a return to 'the registrar, upon all future issues of shares, of the shares

which were issued “ on the footing that they were to be credited as

paid up, or partly paid up, for some consideration other than cash." } Apparently the authorities wish to retain for themselves the

credit of doing away with the obnoxious section 25, and it is to be kept alive until the House of Lords permit progress to be made with the Government Bill. Accordingly the first and third clauses of the Bill of the Incorporated Law Society have disappeared, and the second clause, as remodelled, deals only with the question of granting relief against past and future failures to comply with the section. It has no longer the automatic operation of the clause as originally proposed, but makes an application to the court necessary in each case. The first sub-section of the clause provides, in substance, that when~ ever, before or after the commencement of the Act, shares have

< been issued for a consideration other than cash, and no sufficient

contract is filed under section 25, the company or any person interested may apply to the court for relief, and the court, “ if satisfied that the omission to file a contract was accidental or due to inadvertence, or that for any other reason it is just and equitable to grant relief,” may make an order for the filing of a. sufficient contract in writing, and directing that on such contract being filed within a specified period it shall, in relation to such shares, operate as if it had been duly filed before the issue. The subsequent parts of the clause provide that the application to the court may be made either before or after a winding-up order or resolution, that it may be made upon such terms as the court shall think fit, and that, where the filing of the requisite contract would cause delay or inconvenience, or is impracticable, a memorandum, in a form approved by the court, may be filed instead.

The efiect of the Bill, if passed in its present form, will be to confer upon the court in express terms a power similar to that which has been on various occasions exercised for the purpose of granting relief against omissions to comply with section 25. Where a shareholder who has agreed to take fully-paid shares finds himself, through the company’s neglect to file a sufiicient contract, placed on the register with a liability to pay for the shares in cash, the court has rectified the register y striking ofl his name (see Re Preservation Syndicate, 1895, 2 Ch. 768), though in Re .l[a_1/na/rd’s (Limited) Ksinawicu, J ., declined to go further and to order that after a suflicient agreement had been filed new shares should be issued to the applicant. The present clause will avoid the necessity of rectification and the issue of new shares, and will enable the court to put the shareholders in the same position as if a sufiicient contract had been originally filed. Moreover, as the grounds on which the court may grant relief are not specified, and as it may be supposed that there will be a disposition to apply the clause liberally, it will apparently enable relief to be given in cases which would not have been touched by the clause as originally introduced. There appears to be no reason why the Bill should not become law forthwith, and it may be hoped that an end will thereby be put to the injustice which is possible under section 25.

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The treasurer and benchers of the Middle Temple gave an “ At Home ” and garden-party on Wednesday nftcmoon. The band of the Coldstrearn Guards was in attendance and played a selection of music, while the members of the Inns of Court Orchestral Society, under the direction of Mr. Arthur Payne, gave an excellent concert in the hall.

On the 15th inst. a ball was given by the Treasurer (Master Lewis Coward) and the Benchers of Gray’s-inn in their Dining Hall. Amongst those who were invited were: The Lord Chancellor, the Countess of Halsbury, Viscount Tiverton, Lady Constance Gitfard, the Earl and Countess of Jersey, the Earl of Yarborough, Lord and Lady Robert Cecil, Lord and Lady Carew, Lord and Lady Wallscourt, Lord and Lady Coleridge, Lord and Lady Macneghten, the Lord Chief Justice and Lady Russell of Killowen, Lord Ludlow and Miss Bertha Lopes, Lord and Lady Davey, the Duke dc Stackpoolc, the Hon. Arthur and Mrs. Russell, the Speaker and Mrs. and Miss Gully, Sir Francis and Lady Jeune, Lord Justice and Lady Collins, Mr. Justice and Lady Lawrance, Mr. J usti>e and Lady Wright, Mr. Justice and Lady Kennedy, Mr. Justice and Lady Bigham, Mr. Justice and Lady Byrue, Mr. Justice and Lady Darling, Mr. Justice and Lady Channell, Mr. Justice and Lady Romer, the Attorney-General and Miss Webster, and Sir Robert and Lady Finlay.

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Part I V.—-Jllinor entries in the re_qiaier.—Notz'cas of leases (continuad).—Though under sections 50 and 51 of the Act of 1875 and rules 157 to 160 notices of certain leases may be entered as incumbrances on the register, yet it should be observed that where the term is derived immediately out of the registered freehold reversion and the registered proprietor of the freehold does not concur in the application to enter notice of the lease, it will be necessary for the lessee to apply for an order of the court.

Now, in many cases this will cause unnecessary expense and delay. Thus, suppose a registered charges goes into possession (see the Act of 1875, s. 25) and grants a building lease under section 18 of the Conveyancing and Law of Property Act, 1881 ; why should the lessee have to obtain the consent of the registered proprietor of the land, who probably cannot be found, or in default an order of court, before he can lodge notice of his lease? Again, suppose that the registered proprietor of the freehold is a trustee and that the power to lease is vested in a beneficiary, why should the lessee of that beneficiary be concerned with obtaining an acknowledgment of his title from the trustee?

The above remarks apply mutatis 1nutande's where the term is carved out of a registered leasehold reversion (see rule 157).

Where, however, the lease itself is to be registered under section 11 of the Act of 1875, then it seems that the consent of the registered proprietor of the reversion is not necessary before registration of notice against his title (see rule 53).

The effect of registering the notice is (see section 50 of the Act of 1875) that:

Every registered proprietor of the land, and every person deriving title through him, excepting proprietors of incumbrances registered prior to the registration of such notice, shall be deemed to be affected with notice of such lease or agreement as being an incumbrance on the land in respect of which the notice is entered.

Now, what we object to here is that a registered charges or incumbrancer should not be bound by the notice of the lease, if the lease was made by the mortgagor when in possession in such a manner as that under the general law the incumbrancer and any purchaser from him taking title under the power of sale would be bound. For instance, A. is the registered proprietor of freehold land held for his own benefit subject to a registered charge in favour of B. Then A., being in possession, grants a lease to C. by virtue of section 18 of the Conveyancing and Law of Property Act, 1881, in respect of which C. registers a notice. Notwithstanding this notice, B.’s title is paramount to C.’s lease, and a purchaser from B. would be able to oust C. To prevent this, C., in addition to registering notice of the lease, will be bound to lodge a caution (notwithstanding section 53 of the Act of 1875) against B., unless B.’s charge contains a stipulation to the effect that :

This charge shall be subject to all such leases of the land notice whereof is registered pursuant to sections 50 and 51 of the Land Transfer Act, 1875 (whether made by the registered proprietor of the land or other person entitled to grant the same), as would have been binding on the creditor if the land were unregistered and this charge had been effected by a mortgage; and in like manner as if notice of such leases had been registered before the registration of this charge.

Inasmuch as the rules are, we understand, still under consideration, we submit that a new rule under which such a stipulation might be implied in respect of every registered incumbrance or charge, unless there is an entry to the contrary, could be most usefully added. The entry to the contrary would be equivalent to an agreement pursuant to section 18 (13) of the Act of 1881, restricting the mortgagor’s power to


In practice it will be highly inconvenient to have to obtain the consent of registered chargsss to the grant of such leases, and where the lessee intends to expend money on the land he will hardly be satisfied with the protection afforded by a caution, but will require an entry to be made in the Charges Register and on the charge certificate.

Notices of estates in dower or by the curtesy/.—The application


for notices to protect a right to dower or an estate by the curtesy is to be made in Form 44. The notice, when entered in the Charges Register (rule 161), will operate as the registration of an incumbrance.

As we have already pointed out (ants, p. 446) section 52 of the Act of 1875, which provides for the registration of an estate by the curtesy as an incumbrance is now, as regards an estate by the curtesy, superseded by the Act of 1897, s. 6 (1) (10), under which a person having the powers of a tenant for life (see Form 15 at seg., in First Schedule to rules) may apply for registration in his own name. A tenant by the curtesy who is in possession or is in receipt of the rents and profits is a person who has those powers: Settled Land Act, 1882, s. 58 (viii.); Bates v. Keeterton (1896, 1 Ch. 159, 164). Now, section 6 of the Act of I897 gives an option to a tenant by the curtesy either to have himself, or trustees with a power of sale, or persons having an overriding power of appointment, registered as proprietor or proprietors of the land. Now, there cannot well be any trustees with a power of sale (Settled Land Act trustees are not such trustees except during a minority) or any persons having an overriding power of appointment where a husband succeeds to land as tenant by the curtesy, hence the option will not exist. Again, having regard to sections 50 and 51 of the Act of 1882, which restrict the right to fetter a tenant for life’s powers, and also to section 53 which constitutes a tenant for life a trustee in respect of the exercise of those powers, it is submitted that it would be improper for a tenant by the curtesy to permit any other person to be registered as proprietor of the land.

Further, it is submitted that the registrar has no power to enter up a. notice of an estate by the curtesy unless such estate is in possession ; the contingent right of a husband to take by the curtesy in case he survives his wife is, it is submitted, not an estate by the curtesy at all (compare Bates v. Kesterton, uln supra). Moreover the entries to be made in the register during the joint lives of husband and wife are provided for by section 44 of the Act of 1875 as amended by the Act of 1897. The result is that rule 161 and Form 44 ought to be amended so as to apply only to the case of registration of a right to dower.

Notices as to death duties.—-The provisions (see Act of 1897, s. 13; rules 162 to 165) as to death duties appear to be one of the most satisfactory features of the new Act and rules. Though succession duty and estate duty, in the absence of an entry to the contrary, are a charge upon all registered land (Act of 1875, s. 18, as amended), they are not to affect a bond _/idu purchaser for full consideration in money or money’s worth, even with notice, unless the liability to duty is noted on the register or, in the case of a possessory or qualified title, the liability to the duty is paramount to the fee simple conferred by first registration (Act of 1897, s. 13). It is conceived that a registered charges must be held to be a purchaser for full consideration to the extent of his charge within the meaning of the last-mentioned section; there is, however, no definition of purchaser (compare Conveyancing and Law of Property Act, 1881, s. 2 (viii.) ; and see rule 164).

The registrar is to enquire as to the death duties on every application to register land with an absolute title, or to register a transmission of land ; and is to enter notice of the liability to dutv in Form 45 in the Charges Register.

\Vhere personal representatives are registered, no entry of liability to duty is to be made (rule 163). This seems to shew that, apart from section 13 of the Act of 1897, the Rule Committee were of opinion that, notwithstanding section 5 of the Act of 1897, which says that the constitution of a personal representative in respect of real estate is not to affect any duty, a personal representative will, in favour of a purchaser, be able to convey free from succession and estate duty.

When a personal representative assents to a devise, or transfers to any person, otherwise than by sale, notice of the liability to duty is to be entered in the register, unless payment of death duties is proved to the registrar, or a certificate from the Inland Revenue is furnished (Form ~16), or that the devises or transferee is entitled in favour of a purchaser to convey, free from duty (9.;/., a trustee for sale) : ses rule 164.

An entry of liability to duty may be cancelled on production of proper evidence (rule 165).

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A Selection of Leading Cases on Real Property, Conveyancing, and the Construction of Wills and Deeds; with Notes. By the late OWEN DAVIES TUDOR, Esq., Barrister-at-Law. Fourth Edition. By THOMAS H. CARBON, Esq., Barrister-at-Law, and HAROLD B. BOXPAB, Esq., Barrister-at-Law. Butterworth & Co.

Emplo ers’ Liability, under the Workmen's Compensation Act, 1897, and The Employers’ Liability Act, 1880 ; with Rules under the Workmen’s Compensation Act, 1897. By Anrrnna ROBINSON, B.A., Barrister-at-Law. Second Edition. Including Precedents of Schemes of Compensation under the Workmen’s Compensation Act, 1897, certified by the Registrar of Friendly Societies. By the Author and J . D. STUART Sm, B.A., Barrister-at-Law, Assistant Registrar of Friendly Societies. Stevens & Sons (Limited).

The Law of Easements ; Natural Rights arising from Situation and Licences in India. By R. B. MIUHELL, M.A., Esq., Chief Judge, Court of Small Causes, Madras, Barrister-at-Law. Second Edition. Madras: Laurence Asylum Press.

An Epitome of the Practice of the Chancery and Queen’s Bench Divisions of the High Court of Justice. By WILLIAM Ancnnutrr POCOCK, Esq., Barrister-at-Law. Etlingham Wilson.

The Workmen’s Compensation Act, 1897. With Notes and an Appendix containing the Rules and Regulations under the Act. The Employers’ Liability Act, 1880. Analysis of a. Scheme under the Act, &c. By W. Annmoron W1LL1s, LL.B. (Lond.), Barrister-at-Law. Fifth Edition. Butterworth & Co. ; Shaw & Sons.

The Devolution of the Real Estate on Death under Part I. of the Land Transfer Act, 1897. With the Act, Rules, and Forms. By LEOPOLD Gnones GORDON Rosnnvs, Barrister-at-Law, Reader in Equity to the Inns of Court. Second Edition. Butterworth & Co.


THE LAND TRANSFER ACTS. [To the Editor of the Solicitors’ J0urnaZ.]

Sir,—Has your attention been drawn to the combined effect of section 49 of the Act of 1875 and section 8 of the Act of 1897 ?

The former section provides fQg_gtry_on thg re_gi_st_e5 of (cautions

nd inhibitions relating to equities, regardless of any endorseméhts on the land certificate, whilst the latter enacts that the certificate is to be produced on every entry being__n1ad_e on the register, and for the endorsement of every such entry on the certificate. '

It would seem to me that the latter section controls the‘former, and that in future no entry should be made under section 49 of the earlier Act without production of, and endorsement on, the certificate.

It is certainly most important that this should be so, as otherwise bankers could not safely make advances on the deposit of the land certificate without searching the register, nor could they hold the certificate as a continuing security without searching on the occasion of each subsequent advance, in case some caution should have been registered since the deposit of the certificate and the former search.

It has been prominently put forward as one of the advantages of the Act that bankers would be able to make advances freely on the deposit of the certificate, in the same way in which they now do on the deposit of title-deeds, and I cannot think that this would have been one if section -19 of the earlier Act were not governed by section 8 of the later one, but I am aware that the other view is held by many who are more likely to be correct than I am, and I should ‘ be glad to elicit some expression of opinion from you or your readers.

A BANKEB’S Somciroa.

[See observations in “ Current Topics.”—ED. S. J.]

A COUNTY COURT DECISION. [To the Editor of the Solicitors’ Jou1_'naI.]

Sir,—The decision of a county court judge of a case in which I appeared will doubtless take the majority of your readers, as it did myself and other solicitors in court at the time, by surprise.

The following are shortly the facts:

In 1888 A. buys goods of B. On the 29th of October, 1892, B. issues a summons for the amount of the goods, but the day before the hearing of the summons A. pays B. a small sum on account of the debt and costs, and promises to pay the balance by instalments if B. will withdraw the summons. B. does so. A. fails to keep his promise, and B issues a summons for the balance owin A pears,

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contrary to the spirit of the County Court Acts to “ split ” such a claim as this, and thereupon gave judgment for the defendant.

I have always made it a practice, where a summons is issued against a person who is in poor circumstances, to withdraw the summons (in other words, discontinue the action) on the defendant paying the plaint fee and part of the debt, and agreeing to pay the balance by instalments; my object being to save the defendant from the expense of attending court and the hearing fee, &c.

If this decision is correct (I submit it is wrong), then, no matter how poor a defendant may be, judgment must be obtained in every case.

I should like to know what the views of your readers are in the

matter. W, N, July 14.

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Sir,—I have seen no report of the case of Church v. .lI¢l.'lIfuI, referred to in your issue of the 25th ult., p. 588, and so am unable to ascertain whether the tenancy was at an end on the death of the tenant. In any event there is apparently a direct conflict between the last part of section 2 of the Tithe Act, 1891, which states that “ Tithe rent-charge as defined by this Act shall not be recovered in any other manner,” and section 4 of l-1 & 15 Vict. c. 25, which states in effect that if any occupying tenant of land shall quit leaving unpaid any tithe rent-charge, in certain events therein mentioned it shall be lawful for the landlord, &c., to recover tithes paid by hi~n against the quitting tenant or his legal representatives in the same manner as if the same were a debt by simple contract due from such tenant to the landlord, &c., making such payment.

Does the former Act override the latter; or how does the law now stand? B. N. R.

July 18.

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This was an action brought to restrain the defendants, who were the urban authorities of Sunbury, from draining surface-water from a street under their control into a pond on the plaintiffs‘ land, and one of the questions raised was whether a certain line of pipes to the pond formed a sewer and as such had vested in the defendants, or whether it fell within the exemption contained in section 13, sub-section (1), of the Public Health Act, 1875, as having been made by the plaintiff or his predecessors for his or their own profit. The plaintiff was the owner of a house and grounds in Sunbury known as Hooks House, including a field situate on the west side of a road known as Green-street, which runs north and south. The fieldin question slopes downwards from Green-street and then rises again. In the dip are two ponds, the larger of which was formerly a gravel pit. On the west side of Green-street and nearest to the field was at one time an open ditch from which there ran down to the pond a line of pipes which discharged into the pond. The end of this line next the ditch was protected by a grating at a level of more than two feet below the surface of the road. The defendants became the urban authority of Sunbury on the 3rd of December, 1894. In August, 1896, the portion of the ditch near the grating had become filled with rubbish which completely covered the grating, so that there was nothing at the road to indicate the existence of it or of the line of pipes. In December, 1896, the plaintiff with a view to filling up the pond removed the line of pipes so far as it existed on his own land. Subsequently the defendants entered on the plaintiffs land and cut a trench from the ditch to the field for the purpose of running off the surface-water from Green-street. Therenpon the present action was brought, and by his s‘atement of claim the plaintiff claimed (1) a declaration that the defendants were not entitled to drain such surfacewater into the plaintiff’s said pond or to lay down in the plaintiff's land or use any drain pipe or trench for any such purpose, and ('2) an inj unction. The defendants at the trial justillul their acts under (1) their powers as urban authority under the Public Health Act, 1875, and (2) their powers as the highway authority under section 141 of that Act and the Highway Act, 1835.

Snauxo, J ., held on the evidence that the pipes were originally put la about 1858 for the purpose of getting a better supply of water to the pond for the use ot the cattle and other stock feeding in the field. Un the first point raised by the defendants his lordship referred to Durranz v. Branl:~ some Urban District Council (A16 W. R. 13-1; 1897, 2 Uh. 291) as shewing that “ sewers ” within the Public Health Act include pipes for removing surface-water within section 4 and as such would primd facis vest in the


defendants under section 13. On tie question whether the pipes in question fellwithin the GXCf‘pllOl1 in section 13 (1), his lordship referred to Hiriehead Local Board v. Luttrell (42 W. R. 667 ; 1894, 2 Ch. 178) and to _Ferrrmd v. Hallas Land and Buildiny 6'0. (41 W. R. 580; 1893, 2 Q. B. 135) as shewing that “profit” was not to be restricted to a direct money payment. In the present case the field was not adequately supplied with water and the tenant, in order to avoid the expense of bringing water, had made the line of pipes, and in his lordship’s opinion he had done so for his own profit within the meaning of the section. On the second point raised by the defendants his lordship also held that the pond could not be regarded as part of the drainage system of the defendants (Oroft r. Rickmaruworth Highway Board, 39 Ch. D. 272) and that that defence therefore also failed.--Ooimsiii, Butcher, Q.C., and Austen Carhnell ; Macmorran .C. and E. Good. SOLICITORS, J. J. Freeman ; Cliarlea Jupp.

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This case raised several points of interest and iinportanceas to the duties cast upon local authorities in exercising their powers, and as to the results following when those powers having been through bond fide mistake wrongly exercised, the person who has suffered damage owing to such wrongful exercise takes the law into his own hands and in a high-handed manner interferes with the work of the local authority, without having regard to the convenience or health of the public. The plaintiffs asked for an injunction to restrain the defendant, his servants, agents, and workmen from breaking, injuring, or interfering with the sewer of the plaintiffs placed in lands in the township of Gomersnl, Yorkshire, or from interfering with the flow of sewage in such sewer ; for damages and for costs. The defendant counter-claimed for an injunction to restrain the plaintiffs, their servants and agents, from permitting the sewer to remain within and under defendants’ goit and lauds, and from damaging the goit or trespassing on the lands, and £250 for trespass and in'ury. The facts were very shortly as follows: The plaintiff, under the powers conferred on them by the Public Health Act, after a local inquiry had been held, constructed in October, 1896, a sewer which formed a main part of the drainage system of Cleckheaton. A small portion of the sewer passed through some lands outside the district of Cleckheaton, of which lands a Mr. B. was owner. The plaintiffs had duly served Mr. B. with a notice of their intended work as required by section 32 of the Act, and Mr. B. had raised no objection. Through these lands there ran a watercourse or goit about five feet wide of which both the plaintiffs and Mr. B. thought Mr. B. was the owner. The sewer passed under and across the goit at about three feet below the level of the bed of the goit. Some months after the sewer was completed and in full use the plaintiffs on the 25th of January, 1896, received a letter from the solicitors of Mr. Firth, the defendant, saying that the plaintiffs had trespassed on his property by laying a drainage pipe under his goit, and requiring them within ten days to remove the pipe and pay reasonable compensation for the trespass. The plaintiffs were obviously unable to remove their sewer, which was in full use as a main drain in their sewering system, but they offered to compensate him on his proving his title. They also said the pipe did not touch the goit, and questioned the defend:-int’s title to the land under the goit. Further correspondence took place in February, 1897. But the matter then dropped until the 30th of July, 1897, when the defendant dug down to, cut and plugged the sewer, causing the sewerage to run back into the town. On the following day the local authority, despite forcible resistance on the part of the defendant, reinstated the sewer, and as the defendant refused to give an undertaking not to interfere with the sewer, the plaintiffs on the 2nd of August obtained an interim injunction restraining him from interfering with the sewer. The defendant had offered to settle the matter for £100, but the Plaintiffs had refused, though offering to consider any claim he might make or compensation. The goit in question after crossing Mr. B.’s lands went on to lands of the defendant, on which were situated a mill and millpond belonging to him. It appeared that during the laying of the sewer the flow of water through the goit was for a time interrulpted, and the defcndant’s mill was consequently stopped from working. he defendant counter-claimed for an injunction restraining the plaintiffs from permitting their sewer to remain under his goit and in his land, and for £250 damages for trespass. The plaintiffs contended that at the time they were about to make and actually were making their sewer they had no knowledge or means of knowledge that the defendant was an owner or occupier who should be served with notice, that defendant had suffered little damage, and that if an injuiiciicn was granted against them they would merely have to begin dc nova, ierve the defendant with notice, and relay their sewer in the same place again. Further, they said they had all along ofiered compensation and that defendant's remedy was compensation under section 308 of the Act, and pleaded the Public Authorities Protection Act, 1893, in defence to his counter-claim. Defendant contended that he had acted within his rights, that the plaintiffs had never tendered compensation but had qualified any offer by putting his title in question. Consequently the Public Authorities Protection Act, 1893, did not assist the plaintiffs. It was agreed that the plaintiffs should pay a certain sum to the defendant in satisfaction of all damage, and the question of costs having been


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Ksssivicir, J., said that a slip had been made by thc_ur an is r council in this case. They had not taken suiiicient care in ascertaining who were the owners or reputed owners of the land in question, but had contented themselves with making inquiry by a clerk to o_ue of their

h ill standing there and it was obvious at any

ofiicials. There was t e m _
rate that the owner of the mill was interested in the watercourse, _and
' ' ' li t d visions

though laymen might not be acquainted with the comp ca e pro

of Acts of Parliament, thelaw decided that such an interest as the present
one was, at any rate, an easeinent—indeed, from the evidence the defen-
dant seemcd to be actual owner. Anyhow, it had been admitted by the
plaintiffs that this was an easement belonging to Firth and an
,‘ easement came, by section 4 of the Act, within the definition of “ lands."
‘ M t th owner and the plaintiffs not havmg served

, r. B. was no e , _
Firth with a notice, had no authority to carry their sewer under the goit.
h ot his co=ts m

Had the matter rested there, the defendant would a_ve g

the action, but his lordship was not prepared to give costs to a man

who, not having suffered much damage, had taken the law into his own

hands and in a high-handed way actually cut _the sewer, causing thereby

great inconvenience to the public and running the risk of spreading

disease amongst them. There would thereforebe no costs in the action. th t r claim however the case was different. In spite of

As to e coiin e - , , _ _
what had been urged against it on behalf of ths plaintiff, the defendant
was clearly within his rights in making it, and the plgintiifs by rlefimténg

' ' ' ' a es. e e

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This was an appeal from a decision of Byrne, J. (reported ante, p. 635). An originating summons under the Judicial Trustees Act, 1896, had been taken out in the Liverpool District Registry against the trustees of the estate f John Dixon (deceased) by persons entitled to one-fourth of the estate. The summons asked for the removal of the trustees on the ground of misc ' f ct hostile action. It came on for hearing before

onduct, and was m a a _ _
Byrne, J., who dismissed the summons with costs. During these pro-
' t for Messrs. Donald

ceedings Messrs. Tyrer 8: Co., of Liverpool, as agen_ s
& Co., ofCar1is1e, and Messrs. Norris & Sons, of Liverpool, acted as the
solicitors for one or other of the defendants, and conducted the case them-
selves without employing a London agent, coming up to London to attend
the hearing. Upon taxation of costs before the district_registrar at Liver-
pool Messrs. Tyrer & Co. sent in their bill of costs containing the following
items: “ 161. Feb. 18—Attending court, when case p_art heard and
adjourned to 26th inst., £6 Gs. ; 162. Feb. 18_—Paid railway fare and
expenses, £5 5s. ; 164. Feb. 26—Attending adjourned hearing, £6 §=l- ;
' ' 5 5 .” Messrs. Norris 8.

165. Feb. 26—Paid railway fare and expenses, £ s _ ' Sons sent in ii bill containing similar items. These items were allowed by the registrar. The plaintiff objected to the whole of the items 162 and 165, and to so much of items 161 and 164 as exceeded the amount which would have been allowed had the solicitors instructed London

t t make the attendances to which these items related. He there

fgifenagplled by summons that it might be referred back to the registrar to vary his certificate accordingly. The plaintiff contended that all solicitors laced on the same footing

who practised in the High Court must be p .
that one could not be allowed more than_another merely because he
resided farther away from‘ the court; and that in any event there was no need
for the solicitors in this case to attend _the hearing, as all the evidence was by
affidavit. Byrne, J ., dismissed the summons, and the plaintiff appealed.
Tm: Coniir (Lii~ini.iir, M.B., and Orin-rr and, L.JJ.) stopped

the counsel for the respondents, and dismissed the appeal. _
LINDLBY, 1\.f.R., said: I am not disposedto quarrel with the Judgment
of Byrne, J . It is not judicially before us and I say nothing about it. I
think that in this case we ought not to differ from the decision of the
,lea1-ned judge inthe court below. Bearing in mind the nature of the
proceedings and the very serious character of the_attack which was made
on the conduct of both the defendants, I do not think it can be said to have
been at all unreasonable that the solicitor m the country who knew n_ot
only what was in the afiidavits but a great deal more which was not_in
them, and who was in a position to explain a great many_tliing_s which
d t ' the course of so complicated a litigation, I do

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_when thecase is proceeding upon affidavit evidence. Special circum

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