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£55 for the plaintiff's fee as auctioneer. The defendant Tho L-gislature, therefore, clearly contemplates that liquor accordingly asked the country firm for the plaintiff's receipt for should be sold in theatres as a general rule. "If there is in any this sum, and the plaintiff signed the receipt without having particular case good reason why liquor should not be so sold, received the money. Two sums, amounting together to about then the local authority has power to attach to the grant of a £140, were paid out for costs to the defendant, and these sums theatre licence a condition that liquor shall not be sold. But it he retained in his hands to satisfy costs due to him from the is, we submit, improper for a local authority to adopt a resolucountry firm, with knowledge that the plaintiff's fee had not tion pledging themselves in all cases to take a course different been paid. The plaintiff then brought this action to recover the from that approved of by Parliament; and if a local authority amount of his fee as money received by the defendant on the acts merely on such a resolution, and not upon a proper conplaintiff's behalf. The contention on his part was that the sideration of the facts in each case, the court will, we have circumstances were sufficient to establish an employment of the lit:le doubt, hold that the discretion entrusted to such authority defendant by the plaintiff to receive the fee and hand it over has not been properly exercised. 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 Bussche v. Alt (8 Ch. D. IN THE CASE of Reg. v. The Judge of the Northallerton County 286) may be taken as an example. But in the present case
Court an important question was raised-namely, whether a there was no necessity for implying a contract batween the certiorari will lie to quash an order of a county court sitting in plaintiff and the defendant, and the court refused to make the bankruptcy where such court acts without jurisdiction. It, implication. Assuming the absence of any privity of contract however, became unnecessary to decide this question, as the between the parties to the action, the defendant was doing no court (WRIGHT and DARLING, JJ.) were of opinion, having more than asserting the ordinary lien of a London agent against regard to all the facts of the case, that there was jurisdiction to the country solicitor, which was supported in Lawrence v. Fletcher make the order complained of, and that therefore it would be (12 Ch. D. 858), Robbins y. Fennell (11 Q. B. 248), and other useless to issue a certiorari, assuming such a remedy to be cases. The cases—such as Robbins v. Heath (11 Q. B. 257) and available, as to which no opinion was expressed. It is, howEx parte Edwards (7 Q. B. D. 155)-in which a London agent over, submitted that as a certiorari can only be directed to an has been ordered to pay over to the lay client sums recovered in inferior court, it cannot, under any circumstances, go to a county an action and claimed to be retained to satisfy a debt from the court sitting in bankruptcy, such a court being placed on the country solicitor, are distinguishable; the claim in Hannaford v. same level as the High Court by the Bankruptcy Act, 1883, Syms was founded upon an alleged privity of contract which which provides that a county court shall, for the purposes of its was not established to the satisfaction of the court : the cases bankruptcy jurisdiction, in addition to the ordinary powers of a last referred to were instances in which the summary jurisdic county court, have all the powers and jurisdiction of the High tion of the court over its own officers was exercised under special Court (section 100), and shall not be subject to be restrained in circumstances, in which privity of contract was not a material the execution of its powers under the Act by the order of any consideration.
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 SINCE THE Local Government Act, 1888, became law, the New Par Consols (Limited) (No. 2) (46 W. R. 369; 1898, 1 Q. B. licensing of theatres has been transferred from justices to the 669), where it was held by the Court of Appeal that, as a county councils. It is quite clear, however, that in exercising county court judge is, under the Companies Winding-up Act, this power, the council (or the committee or district council to 1890, 8.1, sub-section 6, invested for the pnrposes of the windwhich this power may be delegated) must use the same judicial ing-up jurisdiction with the powers of the High Court, a discretion that the law requires from licensing justices. With prohibition to him will not be granted. regard to the sale of intoxicating liquors, the proprietors of theatres are not under the Licensing Act, 1872, and they may obtain an excise licence to sell liquor without producing a licence A RECENT correspondent, “Solicitor (S.E.),” in his letter (ante, from justices. It is, therefore, plainly within the intention of p. 632) takes exception to the decision of the Divisional Court the Legislature that such proprietors should sell liquor as a in Bailey v. Watson (ante, p. 572) with regard to the costs of an matter of course. The High Court has, however, held in Reg. action of contract remitted from the High Court to the county v. County Council of the West Riding (44 W. R. 650 ; 1896, 2 court, under section 65 of the County Courts Act, 1888 (51 & 52 Q. B. 386) that a county council may, in the exercise of their Vict. c. 43). There, the claim being for £44, and judgment discretion, attach to the grant of a theatre licence a condition that under order 14 having been obtained in the High Court for the grantee shall not apply to the revenue authorities for a £27 188. 11d. and in the county court for £2 03. 6d. (the balance licence to sell liquor in his theatre. Is it, then, intra vires for a of the claim having been abandoned prior to the remitting local authority to adopt a standing resolution not to grant order), costs were allowed in the county court on the £5 scale any theatre licences except with such a condition attached ? An only, because, though the sum recovered in the action exceeded attempt was made a few days ago to induce the Court of Appeal £20, yet never_more than £2 0s. 6d. was in dispute in the to answer this question in the case of Dorling v. The Sheerness county court. It is submitted that this decision cannot be · Urban District Council. The attempt, however, was not success- reconciled with the previous case of Keeble v. Bennett (42 W. R. ful, as the court came to the conclusion that the local authority 539 ; 1894, 2 Q. B. 329) where it was held that, in order to had exercised their discretion properly upon the merits of the determine the scale of costs applicable in the county court to a case and upon a full consideration of the facts, and that it was remitted action, the amount recovered in the High Court must not necessary to consider whether the resolution was ultra vires. be added to that recovered in the county court. Moreover, it There can be little doubt that if it had been necessary to con- ignores the fact that now only the whole action can be remitted sider the question the court would not have approved of the by the High Court to the county court (Yearly County Court resolution. In Reg. v. Sylvester (26 J. P. 151) it appeared that Practice, 1898, p. 45; County Courts Act, 1888, ss. 65, 66) as the licensing justices of the borough of Abingdon had adopted distinguished from a mere issue (other than one in interpleader), a resolution not to renew the licences of those publicans who and that the remitting order operates to remit the whole action refused to take out excise spirit licences. On appeal, the High whether at the time it is made the whole or a portion only of Court held that the justices were not bound to refuse a licence the claim be in dispute (see Keeble v. Bennett, supra). It would because of this resolution, and clearly intimated that it is im- appear, therefore, that in such a case as that under consideraproper for justices to make resolutions which tend to fetter the tion the costs should have been taxed on the B. scale (above discretion with which each particular case should be treated. £20 and under £50) and not on the scale applicable where only The Excise Act, 1885, gave to the proprietors of theatres and £2, and less than £5, has been recovered. other places of public entertainment the privilege of selling liquor without any further authority than an excise licence. This privilege is expressly preserved to theatros only, and not
The Companies Act (1867) Amendment (No. 2) Bill was down for to any other places of entertainment, by the Licensing Act, 1872.' second reading in the House of Lords on Friday.
homa Syndicate ; Re Maynard's (Limited)), and it is doubtful, SECTION 25 OF THE COMPANIES ACT, 1867. moreover, whether the ordinary subsidiary agreement is a We called attention some months ago (ante, p. 376) to the Bill contract at all. The validity of past transactions being thus promoted by the Incorporated Law Society for amending that secured, the Bill went on to provide, in clause 3, for a return to unhappy piece of legislation known as section 25 of the Com the registrar, upon all future issues of shares of the shares panies Act, 1867. It may be surmised that in its original form which were issued on the footing that they were to be credited as the Bill was not acceptable to certain authorities, and in its paid up, or partly paid up, for some consideration other than cash." passage through the House of Commons it has been completely Apparently the authorities wish to retain for themselves the redrafted ; but the principle of the Bill—the possibility of credit of doing away with the obnoxious section 25, and it is to obtaining relief against the consequences of failure to šle a be kept alive until the House of Lords permit progross to be sufficient contract_has been preserved, and the Bill has now third clauses of the Bill of the Incorporated Law Society have
made with the Government Bill. Accordingly the first and been sent to the House of Lords.
It is needless to do more than refer very shortly to the incon- disappeared, and the second clause, as remodelled, deals only venience and injustice to which section 25 has given rise. The
with the question of granting relief against past and futura section provides that “ every share in any company shall be
failures to comply with the section. It has no longer ths deemed and taken to have been issued and to be held subject to automatic operation of the clause as originally proposed, but
makes an application to the court necessary in each case. The same shall have been otherwise determined by a contract duly first sub-section of the clause provides, in substance, that whenmade in writing, and filed with the Registrar of Joint-Stock ever, before or after the commencement of the Act, shares have Companies at or before the issue of such shares." "Notwith. been issued for a consideration other than cash, and no sufficient standing the grammatical ineptitude of this provision, its contract is filed under section 25, the company or any person meaning is sufficiently plain, and, whatever good faith there interested may apply to the court for relief, and the court, " it may have been in the issue of shares for a consideration other satisfied that the omission to file a contract was accidental or than cash, it renders the shareholder liable to pay in cash the due to inadvertence, or that for any other reason it is just and full nominal value unless he has complied strictly with its equitable to grant relief,” may make an order for the filing of a requirements. The result would have been less serious had it sufficient contract in writing, and directing that on such conbeen practicable always to file the actual contract under which tract being filed within a specified period it shall, in relation the shares were issued, but commonly this has been found to such shares, operate as if it had been duly filed before the inconvenient, and the practice has grown up of filing subsidiary issue. The subsequent parts of the clause provide that the contracts, although to the sufficiency of these there were application to the court may be made either before or after a serious technical objections. The risk which is thus run has winding-up order or resolution, that it may be made upon such been brought into prominence by the recent decision of the terms as the court shall think fit, and that, where the filing of Court of Appeal in Re Kharaskhoma Exploring Syndicate (46
the requisite contract would cause delay or inconvenience, or is W. R. 37; 1897, 2 Ch. 451), followed by the decision of impracticable, a memorandum, in a form apprɔved by the court, KEKEWICH, J., in Re Maynard's (Limited) (ante, p. 308), and the may be filed instead. result has been to throw grave doubt upon the validity of many confer upon the court in express terms a power similar to that
The effect of the Bill, if passed in its present form, will be to of the issues of paid-up ares which have taken place of recent which has been on various occasions exercised for the purpose years.
It is clear enough that section 25 proceeded upon an entirely of granting relief against omissions to comply with section 25. wrong principle. The object is to give persons interested in Where a shareholder who has agreed to take fully-paid shares a company, whether as intending creditors or otherwise, an finds himself, through the company's neglect to file a sufficient opportunity of knowing whether the subscribed capital' has contract, placed on the register with a liability to pay for the found its way into the coffers of the company in cash, or shares in cash, the court has rectified the register by striking whether it is wholly or partly represented by property which off his name (see Re Preservation Syndicate, 1895, 2 Ch. 768), the company has taken over. For this purpose, however, what
though in Re Maynard': (Limited) KEKEWICH, J., declined to go is really required is not the contract under which shares have further and to order that after a sufficient agreement had been been issued, but a plain statement from the officials of the filed new shares should be issued to the applicant. The company as to the terms of issue. This is recognized by the present clause will avoid the necessity of rectification and the Board of Trade, and in the Companies Bill which has been for issue of new shares, and will enable the court to put the sharethe last few years before the House of Lords it is proposed to holders in the same position as if a sufficient contract had been repeal section 25 altogether, and to enact instead that, within originally filed. Moreover, as the grounds on which the court seven days after any allotment of shares, the company shall may grant relief are not specified, and as it may be supposed that send to the registrar a return of the allotments, stating, inter alia, there will be a disposition to apply the clause liberally, it will " the number and amount of shares allotted as fully' or partlý apparently enable relief to be given in cases which would not paid up otherwise than in cash, and in the latter case the extent have been touched by the clause as originally introduced. to which they are so paid up, and in either case the considera- There appears to be no reason why the Bill should not become tion for which such shares have been allotted.". But although be put to the injustice which is possible under section 25.
law forthwith, and it may be hoped that an end will thereby 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 treasurer and benchers of the Middle Temple gave an " At Home" The Bill of the Incorporated Law Society, as originally intro- Guards was in attendance and played a selection of music, while the
And garden-party on Wednesday afternoon. The band of the Coldstream duced, proposed to effect the same change on this point as the members of the Inns of Court Orchestral Society, under the di rection of Government Bill, and at the same time to supply its deficiencies. Mr. Arthur Payne, gave an excellent concert in the hall. By clause 1, section 25 of the Act of 1867 was to be repealed. On the 15th inst. a ball was given by the Treasurer (Master Lewis Coward) Clause 2, to state it shortly, provided, as to past transactions, and the Benchers of Gray’s-inn in their Dining Hall. Amongst those that when a contract had been filed with the registrar with a Viscount Tiverton, Lady Constance Giffard, the Earl and Countess view to complying with section 25, it should be no objection that of Jersey, the Earl of Yarborough, Lord and Lady Robert Cecil, Lord and it did not sufficiently disclose the consideration for the issue of Lady Carew, Lord and Lady Wallscourt, Lord and Lady Coleridge, Lord the shares, or that it only contained a part of the contract and Lady Macnaghten, the Lord Chief Justice and Lady Russell of relating to the issue of the shares, or that it did not in law Killowen, Lord Ludlow and Miss Bertha Lopes, Lord and Lady Davey, constitute such a contract as the section required. It was thus Speaker and Mrs. and Miss Gully, Sir Francis and Lady Jeune, Lord
the Duke de Stackpoole, the Hon. Arthur and Mrs. Russell, the intended to meet the objections to which the subsidiary contracts Justice and Lady Collins, Mr. Justice and Lady Lawrance, Mr. Justi se which have frequently been filed are liable. The consideration and Lady Wright, Mr. Justice and Lady Kennedy, Mr. Justice and Lady is not fully disclosed in the filed document itself, but is only Bigham, Mr. Justice and Lady Byrne, Mr. Justice and Lady Darling, identified by reference to the principal contract (Ro Kharask- Attorney-General and Miss Webster, and Sir Robert and Lady Finlay.
Mr. Justice and Lady Channell, Mr. Justice and Lady Romer, the
for notices to protect a right to dower or an estate by the curTHE LAND TRANSFER RULES.
tesy is to be made in Form 44. The notice, when entered in the XI.
Charges Register (rule 161), will operate as the registration of an
incumbrance. Part IV.- Minor entries in the register.-Notices of leases (continued). Though under sections 50 and 51 of the Act of the Act of 1875, which provides for the registration of an
As we have already pointed out (ante, p. 446) section 52 of 1875 and rules 157 to 160 notices of certain leases may be estate by the curtesy as an incumbrance is now, as regards an entered as incumbrances on the register, yet it should be observed that where the term is derived immediately out of the estate by the curtesy, superseded by the Act of 1897, 8. 6 (1) registered freehold roversion and the registered proprietor of life (see Form 15 et seq., in First Schedule to rules) may apply for
(10), under which a person having the powers of a tenant for the freehold does not concur in the application to enter notice of the lease, it will be necessary for the losseo to apply for an in possession or is in receipt of the rents and profits is a person
registration in his own name. A tenant by the curtesy who is order of the court.
who has those powers : Settled Land Act, 1882, s. 58 (viii.); Now, in many cases this will cause unnecessary expense and Bates v. Kesterton (1896, 1 Ch. 159, 164). Now, section 6 of the delay. Thus, suppose a registered chargee goes into possession Act of 1897 gives an option to a tenant by the curtesy either to (800 the Act of 1875, s. 25) and grants a building lease under have himself, or trustees with a power of sale, or persons section 18 of the Conveyancing and Law of Property Act, 1881; having an overriding power of appointment, registered as why should the lesses have to obtain the consent of the proprietor or proprietors of the land. Now, there cannot well registered proprietor of the land, who probably cannot be found, be any trustees with a power of sale (Settled Land Act trustees or in default an order of court, before he can lodge notice of are not such trustees except during a minority) or any persons his lease ? Again, suppose that the registered proprietor of having an overriding power of appointment where the freehold is a trustee and that the power to lease is vested husband succeeds to land as tenant by the curtesy, hence in a beneficiary, why should the lensee of that beneficiary be the option will not exist. Again, having regard to concerned with obtaining an acknowledgment of his title from sections 50 and 51 of the Act of 1882, which restrict the the trustee ?
right to fotter a tenant for life's powers, and also to section 53 The above remarks apply mutatis mutandis where the term is which constitutes a tenant for life a trustee in respect of the carved out of a registered leasehold reversion (see rule 157). exercise of those powers, it is submitted that it would be
Where, however, the lease itself is to be registered under improper for a tenant by the curtesy to permit any other section 11 of the Act of 1875, then it seems that the consent of person to be registered as proprietor of the land. the registered proprietor of the reversion is not necessary before Further, it is submitted that the registrar has no power to registration of notice against his title (see rule 53).
enter up a notice of an estate by the curtesy unless such estate The effect of registering the notice is (see section 50 of the is in possession; the contingent right of a husband to take by Act of 1875) that:
the curtesy in case he survives his wife is, it is submitted, not
an estate by the curtesy at all (compare Bates v. Kesterton, ubi Every registered proprietor of the land, and every person deriving
Moreover the entries to be made in the register title through him, excepting proprietors of incumbrances registered
supra). prior to the registration of such notice, shall be deemed to be affected during the joint lives of husband and wife are provided for by with notice of such lease or agreement as being an incumbrance on section 44 of the Act of 1875 as amended by the Act of 1897. the land in respect of which the notice is entered.
The result is that rule 161 and Form 44 ought to be amended so Now, what we object to here is that a registered chargee or
as to apply only to the case of registration of a right to dower. incumbrancor should not be bound by the notice of the lease, if Notices as to death duties.—The provisions (see Act of 1897, the lease was made by the mortgagor when in possession in s. 13; rules 162 to 165) as to death duties appear to be one of such a manner as that under the general law the incumbrancer the most satisfactory features of the new Act and rules. and any purchaser from him taking title under the power of Though succession duty and estate duty, in the absence of an Bale would be bound. For instance, A. is the registered pro-entry to the contrary, are a charge upon all registered land (Act prietor of freehold land held for his own benefit subject to a of 1875, s. 18, as amended), they are not to affect a bona fide registered charge in favour of B. Then A., being in possession, purchaser for full consideration in money or money's worth, grants a lease to C. by virtue of section 18 of the Conveyancing even with notice, unless the liability to duty is noted on the and Law of Property Act, 1881, in respect of which C. registers register or, in the case of a possessory or qualified title, the a notice. Notwithstanding this notice, B.'s title is paramount liability to the duty is paramount to the foo simple conferred by to C.'s lease, and a purchaser from B. would be able to oust C. first registration (Act of 1897, s. 13). It is conceived that To prevent this, C., in addition to registering notice of the lease, a registered chargee must be held to be a purchaser for full conwill be bound to lodge a caution (notwithstanding section 53 sideration to the extent of his charge within the meaning of the of the Act of 1875) against B., unless B.'s charge contains a last-mentioned section ; there is, however, no definition of purstipulation to the effect that:
chaser (compare Conveyancing and Law of Property Act, 1881, This charge shall be subject to all such leases of the land notice
s. 2. (viii.); and see rule 164). whereof is registered pursuant to sections 50 and 51 of the Land
The registrar is to enquire as to the death duties on every Transfer Act, 1875 (whether made by the registered proprietor of the application to register land with an absolute title, or to register land or other person entitled to grant the same), as would have been a transmission of land; and is to enter notice of the liability to binding on the creditor if the land were unregistered and this charge duty in Form 45 in the Charges Register. 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. liability to duty is to be made (rule 163). This seems to show
Where personal representatives are registered, no entry of Inasmuch as the rules are, we understand, still under con- that, apart from section 13 of the Act of 1897, the Rule Comsideration, we submit that a new rule under which such a mittee were of opinion that, notwithstanding section 5 of the stipulation might be implied in respect of every registered Act of 1897, which says that the constitution of a personal incumbrance or charge, unless there is an entry to the contrary, representative in respect of real estate is not to affect any duty, could be most usefully added. The entry to the contrary a personal representative will, in favour of a purchaser, be able would be equivalent to an agreement pursuant to section 18 to convey free from succession and estate duty. (13) of the Act of 1881, restricting the mortgagor's power to When a personal representative assents to a devise, or transfers lease.
to any person, otherwise than by sale, notice of the liability to In practice it will be highly inconvenient to have to obtain duty is to be entered in the register, unless payment of death the consent of registered chargoes to the grant of such leases, duties is proved to the registrar, or a certificate from the Inland and where the lessee intends to expend money on the land he Revenue is furnished (Form 46), or that the devisee or will hardly be satisfied with the protection afforded by a caution, transferee is entitled in favour of a purchaser to convey, free but will require an entry to be made in the Charges Register and from duty (6.9., a trustee for sale) : seo rule 164. on the charge certificate.
An entry of liability to duty may be cancelled on production Notices of estates in dower or by the curtesy. The application of proper evidence (rule 165).
contrary to the spirit of the County Court Acts to "split” such a claim REVIEWS.
as this, and thereupon gave judgment for the defendant.
I have always made it a practice, where a gummons is issued BOOKS RECEIVED.
against a person who is in poor circumstances, to withdraw the A Selection of Leading Cases on Real Property, Conveyancing, summons (in other words, discontinue the action) on the defendant and the Construction of Wills and Deeds; with Notes. By the late paying the plaint fee and part of the debt, and agreeing to pay the OWEN DAVIES TUDOR, Esq., Barrister-at-Law. Fourth Edition. balance by instalments; my object being to save the defendant from By Thomas H. CARSON, Esq., Barrister-at-Law, and HAROLD B. the expense of attending court and the hearing fee, &c. BOMPAS, Esq., Barrister-at-Law. Butterworth & Co.
If this decision is correct (I submit it is wrong), then, no matter Employers' Liability, under the Workmen's Compensation Act, how poor a defendant may be, judgment must be obtained in every 1897, and The Employers' Liability Act, 1880; with Rules under the
I should like to know what the views of your readers are in the Workmen's Compensation Act, 1897. By ARTHUR ROBINSON, B.A.,
matter. Barrister-at-Law. Second Edition. Including Precedents of Schemes
W. N. of Compensation under the Workmen's Compensation Act, 1897,
July 14. certified by the Registrar of Friendly. Societies. By the Author and J. D. STUART SIM, B.A., Barrister-at-Law, Assistant Registrar
RECOVERY OF TITHE RENT-CHARGE. of Friendly Societies. Stevens & Sons (Limited).
[To the Editor of the Solicitors' Journal.] The Law of Easements; Natural Rights arising from Situation and Licences in India. By R. B. MICHELL, M.A., Esq., Chief Judge, referred to in your issue of the 25th ult., p. 588, and so am unable to
Sir,- I have seen no report of the case of Church v. Macted, Court of Small Causes, Madras, Barrister-at-Law. Second Edition. ascertain whether the tenancy was at an end on the death of the Madras : Laurence Asylum Press.
tenant. In any event there is apparently a direct conflict between An Epitome of the Practice of the Chancery and Queen's Bench the last part of section 2 of the Tithe Act, 1891, which states that Divisions of the High Court of Justice. By WILLIAM ARCHBUTT
“ Tithe rent-charge as defined by this Act shall not be recovered in POCOCK, Esq., Barrister-at-Law. Effingham Wilson.
any other manner," and section 4 of 14 & 15 Vict. c. 25, which states The Workmen's Compensation Act, 1897. With Notes and an in effect that if any occupying tenant of land shall quit leaving Appendix containing the Rules and Regulations under the Act. The unpaid any tithe rent-charge, in certain events therein mentioned it Employers' Liability Act, 1880. Analysis of a Scheme under the Act, shall be lawful for the landlord, &c., to recover tithes paid by hiin &c. By W. ADDINGTON WILLIS, LL.B. (Lond.), Barrister-at-Law. against the quitting tenant or bis legal representatives in the same Fifth Edition. Butterworth & Co.; Shaw & Sons.
manner as if the same were a debt by simple contract due from such The Devolution of the Real Estate on Death under Part I. of the
tenant to the landlord, &c., making such payment.
Does the former Act override the latter ; or how does the law Land Transfer Act, 1897. With the Act, Rules, and Forms. By LEOPOLD GEORGE GORDON ROBBINS, Barrister-at-Law, Reader in
now stand ?
R. N. R. Equity to the Inns of Court. Second Edition. Butterworth & Co.
[Section 4 of 14 & 15 Vict. c. 25 applies only where the titheowner gives notice of distress. Since the tithe-owner cannot now
give any such notice, the section appears to be in effect repealed. CORRESPONDENCE.
ED. S. J.]
CASES OF THE
THE WEEK. 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 ?
High Court-Chancery Division. The former section provides for entry on the register of cautions CROYSDALE v. SUNBURY-ON-THAMES URBAN DISTRICT COUNCIL. and inhibitions relating to equities, regardless of any endorsements
Stirling, J. 9th July. on the land certificate, wbilet the latter enacts that the certificate is Local GOVERNMENT-SEWER MADE BY A PERSON FOR His Own ProFITto be produced on every entry being made on the register, and for VESTING-PUBLIC HEALTH Act, 1875 (38 & 39 Vict. c. 55), s. 13 (1). the endorsement of every such entry on the certificate. It would seem to me that the latter section controls the former,
This was an action brought to restrain the defendants, who were the
urban authorities of Sunbury, from draining surface-water from a street and that in future no entry should be made under section 49 of the
under their control into a pond on the plaintiffs' land, and one of the earlier Act without production of, and endorsement on, the questions raised was whether a certain line of pipes to the pond formed a certificate.
sewer and as such bad vested in the defendants, or whether it fell within the It is certainly most important that this should be so, as otherwise exemption contained in section 13, sub-section (1), of the Public Health bankers could not safely make advances on the deposit of the land Act, 1875, as having been made by the plaintiff or his predecessors for his certificate without searching the register, nor could they hold the or their own profit. The plaintiff was the owner of a house and grounds certificate as a continuing security without searching on the occasion in Sunbury known as Hooke House, including a field situate on the west of each subsequent advance, in case some caution should have been side of a road known as Green-street, which runs north and south. The registered since the deposit of the certificate and the former search.
field in question slopes downwards from Green-street and then rises again. It has been prominently put forward as one of the advantages of 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 the Act that bankers would be able to make advances freely on the
an open ditch from wbich there ran down to the pond a line of pipes deposit of the certificate, in the same way in which they now do on
which discharged into the pond. The end of this line next the ditch the deposit of title-deeds, and I cannot think that this would have was protected by a grating at a level of more than two feet below the been done if section 49 of the earlier Act were not governed by surface of the road. The defendants became the urban authority of Sunbury section 8 of the later one, but I am aware that the other view is held on the 3rd of December, 1894. In August, 1896, the portion of the ditch by many who are more likely to be correct than I am, and I should near the grating had become filled with rubbish which completely covered be glad to elicit some expression of opinion from you or your readers. the grating, so that there was nothing at the road to indicate the existence
A BANKER'S SOLICITOR. of it or of the line of pipes. In December, 1896, the plaintiff with a view [See observations in “Current Topics.”—ED. S. J.]
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 plaintiff's land and cut a trench from the ditch to the field for the purpose of running off
the surface-water from Green-street. Thereupon the present action was A COUNTY COURT DECISION.
brought, and by his statement of claim the plaintiff claimed (1) a
declaration that the defendants were not entiiled to drain such surface. [To the Editor of the Solicitors' Journal.]
water into the plaintiff's said pond or to lay down in the plaintiff's Sir,—The decision of a county court judge of a case in which I land or use any drain pipe or trench for any such purpose, and appeared will doubtless take the majority of your readers, as it did (2) an injunction. The defendants at the trial justified their myself and other solicitors in court at the time, by surprise.
acts under (1) their powers as urban authority under the Public Health The following are shortly the facts :
Act, 1875, and (2) their powers as the bighway authority under section 101 In 1888 A. buys goods of B. On the 29th of October, 1892, B. of that act aud the Highway Act, 1835. issues a summons for the amount of the goods, but the day before about 1858 for the purpose of getting a better supply of water to the pond
STIRLINO, J., held on the evidence that the pipes were originally put ia the hearing of the summons A. pays B. a small sum on account of the for the use of the cattle and other stock feeding in the field. On the fi:st debt and costs, and promises to pay the balance by instalments if point raised by the defendants his lordship referred to Durrant v. BrankB. will withdraw the summons. B. does so. A. fails to keep his some Urban District Council (46 W. R. 134; 1897, 2 Ch. 291) as shewing promise, and B. issues a summons for the balance owing. A. appears, that "sewers" within the Public Health Act include pipes for removing and states that he does not owe B. anything. The judge said it was surface-water within section 4 and as such would prima facie vest in the
defendants under section 13. On the question whether the pipes in KBKEWICH, J., said that a clip had been made by the urban district question fell within the excep'ion in section 13 (1), his lordship referred council in this case. They had not taken sufficient care in ascertaining to Minehead Local Board v. Luttrell (42 W. R. 667; 1894, 2 Ch. 178) and to who were the owners or reputed owners of the land in question, but had Ferrand v. Hallas Land and Building Co. (41 W. R. 580; 1893, 2 Q. B. 135) contented themselves with making inquiry by a clerk to one of their as shewing that “profit” was not to be restricted to a direct money officials. There was the mill standing there and it was obvious at any payment. In the present case the field was not adequately supplied with rate that the owner of the mill was interested in the watercourse, and water and the tenant, in order to avoid the expense of bringing water, though laymen might not be acquainted with the complicated provisions had made the line of pipes, and in his lordship's opinion he had done 80 of Acts of Parliament, the law decided that such an interest as the present ior his own profit within the meaning of the section. On the second one was, at any rate, an easement-indeed, from the evidence the defenpoint raised by the defendants his lordship also held that the pond could dant seemed to be actual owner. Anyhow, it had been admitted by the not be regarded as part of the drainage system of the defendants (Croft v. plaintiffs that this was an easement belonging to Mr. Firth and an Rickmansworth Highway Board, 39 Ch. D. 272) and that that defence easement came, by section 4 of the Act, within the definition of “ lands.” therefore also failed.-COUNSEL, Butoher, Q.C., and Austen Cartmell ; Mac- Mr. B. was not the owner, and the plaintiffs not having served Mr. morran, Q.C., and E. Good. SOLICITORS, J. J. Freeman ; Charles Jupp. Firth with a notice, had no authority to carry their sewer under the goit. (Reported by W. Scott Thompson, Barrister-at-Law.]
Had the matter rested there, the defendant would have got his costs in
the action, but his lordship was not prepared to give costs to a man THE CLECKHEATON URBAN DISTRICT COUNCIL ». FIRTH. Kekewich, who, not having suffered much damage, had taken the law into his own J. 14th July.
hands and in a high-handed way actually cut the sewer, causing thereby
great inconvenience to the public and running the risk of spreading Local AUTHORITY—Sewer-Powers OUTSIDE DISTRICT-REPUTED Owner disease amongst them. There would therefore be no costs in the action.
OR OCCUPIER– Notice—OMISSION TO GIVE Notice-EASEMENT—COMPENS- As to the counter-claim, however, the case was different. In spite of ATION-OWNER INTERFERES With Sewer-Costs-- PUBLIC Health Act, what had been urged against it on behalf of the plaintiff, the defendant 1875 (38 & 39 Vict. c. 55), ss. 4, 16, 32, 33, 308-PUBLIC AUTHORITIES
was clearly within his rights in making it, and the plaintiffs by resisting PROTECTION ACT, 1893 (56 & 57 Vict. Ć. 61), s. 1.
his title gave him no opportunity of agreeing upon damages. The deThis case raised several points of interest and importance as to the fendant was therefore entitled to the costs of his counter-claim.-Counsel, duties cast upon local authorities in exercising their powers, and as to the T. R. Warrington, Q.C., aud W. Baker; W. Renshaw, Q.C., and J. G. results following when those powers having been through bona fide Wood. SOLICITORS, Torr, Gribble, Oddie, f Sinclair, for W. Clough, Cleck. mistake wrongly exercised, the person who has suffered damage owing heaton ; Flower, Nussey, 8 Fellowes, for Cadman f. Cadman, Cleckheaton. to such wrongful exercise takes the law into his own hands and in a
[Reported by C. C. HENSLEY, Barrister-at-Law.] 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, injạring, or interfering with the sewer of the plaintiffs placed in lands in the township of Gomersal,
Solicitors' Cases. Yorkshire, or from interfering with the flow of sewage in such sewer; for damages and for costs. The defendant counter-claimed for an injunc
Re DIXON, TOUSEY v. SHEFFIELD. C. A. No. 2. 20th July. tion to restrain the plaintiffs, their servants and agents, from permitting PRACTICE-Costs-COUNTRY SOLICITOR-ATTENDANCE IN LONDON AT HBARthe sewer to remain within and under defendants' goit and lands, ING-LONDON AGENT NOT EMPLOYED--ALLOWANCE FOR ATTENDANCEand from damaging the goit or trespassing on the lands, and SPECIAL CIRCUMSTANCES-DISCRETION OF JUDGE. £250 for trespass and injury. The facts
very shortly as
This was an appeal from a decision of Byrne, J. (reported ante, p. 635). follows: The plaintiff, under the powers conferred on them by the An originating summons under the Judicial Trustees Act, 1896, had been Public Health Act, after a local inquiry had been held, constructed in taken out in the Liverpool District Registry against the trustees of the estate October, 1896, a sewer which formed a main part of the drainage system of John Dixon (deceased) by persons entitled to one-fourth of the estate. of Cleckheaton. . A small portion of the sewer passed through some lands The summons asked for the removal of the trustees on the ground of misoutside the district of Cleckheaton, of which lands a Mr. B. was owner, conduct, and was in fact a hostile action. It came on for hearing before The plaintiffs had duly served Mr. B. with a notice of their intended Byrne, J., who dismissed the summons with costs. During these prowork as required by section 32 of the Act, and Mr. B. had raised no ceedings Messrs. Tyrer & Co., of Liverpool, as agents for Messrs. Donald objection. Through these lands there ran a watercourse or goit about & Co., of Carlisle, "and Messrs. Norris & Sons, of Liverpool, acted as the five feet wide of which both the plaintiffs and Mr. B. thought Mr. B. was solicitors for one or other of the defendants, and conducted the case them. the owner. The sewer passed under and across the goit at about three selves without employing a London agent, coming up to London to attend feet below the level of the bed of the goit. Some months after the sewer the hearing. Upon taxation of costs before the district registrar at Liverwas completed and in full use the plaintiffs on the 25th of January, 1896, pool Messrs. Tyrer & Co. sent in their bill of costs containing the following received a letter from the solicitors of Mr. Firth, the defendant, saying items : “161. Feb. 18-Attending court, when case part heard and that the plaintiffs had trespassed on his property by laying a drainage adjourned to 26th inst., £6 6s. ; 162. Feb. 18–Paid railway fare and pipe under his goit, and requiring them within ten days to remove the expenses, £5 59. ; 164. Feb. 26-Attending adjourned hearing, £6 63.; pipe and pay reasonable compensation for the trespass. The plaintiffs 165. Feb. 26–Paid railway fare and expenses, £5 58." Messrs. Norris & were obviously unable to remove their sewer, which was in full use as a
Sons sent in a bill containing similar items. These items were allowed main drain in their sewering system, but they offered to compensate him by the registrar. The plaintiff objected to the whole of the items 162 on bis proving his title. They also said the pipe did not touch the goit, and 165, and to so much of items 161 and 164 as exceeded the amount and questioned the defendant's title to the land under the goit. Further which would have been allowed had the solicitors instructed London correspondence took place in February, 1897. But the matter agents to make the attendances to which these items related. He therethen dropped until the 30th of July, 1897, when the defendant fore applied by summons that it might be referred back to the registrar to dug down to, cut and plugged the sewer, causing the sewerage vary his certificate accordingly. The plaintiff contended that all solicitors to run back into the town. On the following day the local authority, who practised in the High Court must be placed on the same footing; despite forcible resistance on the part of the defendant, reinstated the that one could not be allowed more than another merely because he gewer, and as the defendant refused to give an undertaking not to inter- resided farther away from the court; and that in any event there was no need fere with the sewer, the plaintiffs on the 2nd of August obtained an for the solicitors in this case to attend the hearing, as all the evidence was by interim injunction restraining him from interfering with the sewer. The affidavit. Byrne, J., dismissed the summons, and the plaintiff appealed. defendant had offered to settle the matter for £100, but the plaintiffs had The Court (LINDLEY, M.R., and CHITTY and COLLINS, L.JJ.) stopped refused, though offering to consider any claim he might make for compensa- the counsel for the respondents, and dismissed the appeal. tion. The goit in question after crossing Mr. B.'s lands went on to lands LINDLEY, M.R., said: I am not disposed to quarrel with the judgment of the defendant, on which were situated a mill and millpond belonging to of Byrne, J. It is not judicially before us and I say nothing about it. I him. It appeared that during the laying of the sewer the flow of water think that in this case we ought not to differ from the decision of the through the goit was for a time interrupted, and the defendant's mill was
learned judge in the court below. Bearing in mind the nature of the consequently stopped from working. The defendant counter-claimed for proceedings and the very serious character of the attack which was made an injunction restraining the plaintiffs from permitting their sewer to on the conduct of both the defendants, I do not think it can be said to have remain under his goit and in his land, and for £250 damages for trespass. been at all unreasonable that the solícitor in the country who knew not The plaintiffs contended that at the time they were about to make and only what was in the affidavits but a great deal more which was not in actually, were making their sewer they had no knowledge or means of them, and who was in a position to explain a great many things which knowledge that the defendant was an owner or occupier who should be might be referred to in the course of so complicated a litigation, I do served with notice, that defendant had suffered little damage, and that if not think it was unreasonable that he should attend at the hearing in an injunction was granted against them they would merely have to begin London. On the contrary, I think Byrne, J., was quite right in holding de noro, serve the defendant with notice, and relay their sewer in the same that it was reasonable he should so attend. That disposes of the case. place again. Further, they said they had all along offered compensation The appeal must be dismissed. and that defendant's remedy was compensation under section 308 of the CHITTY, L.J.--The rule as to allowances in such cases as this is not Act, and pleaded the Public Authorities Protection Act, 1893, in defence to inflexible. The country solicitor's attendance in London may in proper his counter-claim. Defendant contended that he had acted within bis
cases be allowed for. Byrne, J., has held, after taking great care, and rights, that the plaintiffs had never tendered compensation but had seeing a London taxing-master, that the circumstances here are very qualified any offer by putting his title in question. Consequently the exceptional, and that the allowance ought to be made. Now, though it Public Authorities Protection Act, 1893, did not assist the plaintiffs. It is more difficult where the case is presented by affidavit to make out that was agreed that the plaintiffs should pay a certain sum to the defendant the circumstances are of that exceptional character which justifies the in satisfaction of als damage, and the question of costs having been allowance, I think there is no inflexible rule against the allowance even argued,
when the case is proceeding upon affidavit evidence. Special circum