Page images
PDF
[graphic]
[graphic]

for any less period during which he has been in the employment of the same employer, such weekly payment not to exceed £l.” This is clear enough for cases where the workman’s employment has lasted for a sufficient number of weeks to make it possible to strike an average-—possibly one week would give an average for this purpose. But what is to be done where, as in the present case, there has neither been a week's work nor has any rate of wages been agreed upon? The claimant proposed to refer back to his previous employment as a blacksmith, where he was earning 33s. 6d. a week. He accordingly claimed a weekly payment of 16s. 9d. But this was obviously inadmissible, and so Judge WHITEHORNE held. The rate of wages contemplated by the Act refers only to the time of employment under the employer against whom the claim is made. It would be possible to argue that the case was not within the Act at all, no weekly earnings upon which to strike an average having accrued. But this view was not put forward by the insurance company who were behind the defendants, and if it had been it seems the judge would not have adopted it. His desire, he said, was to carry out the purpose of the Act loyally, and this was inconsistent with a narrow interpretation of its provisions. But if some scale of wages had to be applied, and none had been agreed upon between the parties, it seemed inevitable to adopt the current rate for the kind of work to which the plaintiff had been actually put. For the unskilled labour in which he was employed at the time of the accident the current rate was 24s. a week, and at half this, or 12s. a week—the amount which the contractor had Originally ofiered to pay—the compensation was fixed by the

court. " ,

THE DECISION of the Court of Appeal in New London Crnlit Syndicate (L-z'mz'tsd) v. Male (1898, 2 Q. B. 487) is an apt illustration of the rule that the effect of a written contract cannot be varied by evidence of a contemporaneous oral agreement. An action was brought against a company by B. and C. A., who was the chairman of the coinpuny and interested in it, accepted a_ bill for £110, a sum which it was agreed should be paid to B. and C. in settlement of the action. The bill, which was at three months, was drawn by B. and C. and made payable to their Order. When it was given it appears that a verbal arrangement was made under which the drawers were to renew the hill should the acceptor not be in a position to pay it at maturity. B. and C. indorsed the bill over to the syndicate, who were the plaintifis in the present action and who took with notice of the agreement for renewal. They declined, however, to renew at maturity, and sued upon the bill. Practically the agreement to renew was an undertaking that the bill should not be negotiated, and DARLING, J ., held that, since the syndicate took with notice of this agreement, their title to the bill was defective and they had no right of action. But the only effect of notice to them was to put them in the same position as the drawers, and their title to the bill and their right to sue on it were alike good, save in so far as the right to sue was qualified by the verbal agreement. Here the acceptor found that the arrangement proved useless to him. It is not competent to the party to a bill to stipulate verbally that it shall not he met at maturity. “ What isto become,” said Lord ELLENBOROUGH in Hoare v. Graham (3 Camp. 57), “of bills of exchange and promissory notes if they may be cut down by a secret agreement that they shall not be put in suit. The condition for a renewal entirely contradicts the instrument which the defendants have signed. Such an agreement rests in confidence and honour only, and is not an obligation of law.” So in Young v. Austm (L. R. 4 C. P. 553) it was said to he clear that the defendant could not set up a contemporaneous oral agreement for renewal to contradict the contract on the face of the bill, though by a written agreement entered into at the time the bill was accepted the parties might regulate their rights between themselves. This, of course, is continually done when hills are given as security for loans. In the present ease the verbal agreement for renewal of the bill was excluded upon the above principle, and the plaintifis obtained judgment in the Court of Appeal.

Tun rnovisions of the Companies Act, 1862, which relate to

[graphic]

the termination of a voluntary winding up (sections 142, 143) require the liquidators to call a general meeting for the purpose of receiving a final account. The liquidators then make a return to the registrar of the meeting having been held and of its date, and on the expiration of three months from the date‘ of the registration of the return, the company is to be deemed to be dissolved. Such dissolution, however, is not an absolute bar to all further proceedings in relation to the company. In Re Grool.-baron Jllining Co. (L. R. 3 Eq. 69) it was held that the court had jurisdiction to make an order in the voluntary winding up after the expiration of the three months, if the application for the order was made -before the expiration of such period. There the delay in the hearing of the application had been due to the intervention of the Long Vacation. Lord ROMILLY, M.R., held that this could not affect the rights of the applicant, and that he was entitled to stand in the same position as though the application had been heard before the expiration of the three months. A similar delay has led to a similar decision in Whitaky Exerciser (Lz'm.) v. G/nnago (1898, 2 Ch. 405), the delay on this occasion, however, being due to the congested state of business in the court. The general meeting under section 142 in the winding up of the plaintiff company was held on the 8th of January, 1898. The return was registered under section 143 on the 14th of January. Consequently the company wa to be deemed to be dissolved on the 14th of April. A summons dealing with the taxation of the costs in the action was taken out by the defendant on the 4th of February, but it did not come on for hearing until the 15th of J uly. Noarn, J ., however, considered that the decision of Lord ROALILLY in Re Crookluwen 1[z'm'n_q Co. was ample justification for his adj udicating upon the matter, notwithstanding the statutory dissolution of the company. In Curran v. Gorst (1891, 2 Ch., p. 75) C}II'1'l‘Y, J ., is reported to have intimated in the course of the argument that Rs Crooklzavm was contrary to the later decisions, and that the dissolution was an absolute bar to the jurisdiction of the court. But apparently this was said under a misapprehension. Inltc Pinto Silver Jl[z'nz'n_q Co. (8 Ch. D. 273) and Re London and Caledonzbn Jllarino Insurance Cu. (ll Ch. D. I40) the Court of Appeal refused to make a compulsory order for winding up after the company had been dissolved under the voluntary liquidation, and it was said that such an order could only be made on the ground of fraud. But these cases do not seem to prohibit the jurisdiction in matters which are pending at the date of the statutory dissolution. Otherwise the delay of the court would mean a denial of justice.

Ir Is, as was observed by VAUGHAN Wrnmans, J ., in Re Smit/z 55' Logan (43 W. R. 413), a constant practice in proving against a bankrupt’s estate for a creditor who has several distinct debts due to him to lump his debts and securities in one proof, although this does not prevent the trustee from subsequently requiring the securities to be valued separately should he desire to redeem any particular security. The decision of Roman, J ., in Ra Jllorris (46 W. R. 627) suggests a further case in which a distinction between the debts should he made. A creditor had a right under a creditor’s deed to prove against the debtor’s estate in respect of three bills of exchange for £2,000 each and one bill for £1,000. Various other parties who were also insolvent were liable on the bills and the creditor had proved against their estates also. The result was that upon two of the bills the creditor received in dividends from the various estates suflicient to pay more than 20s. in the £, but in respect of the others he had received less than the full value. He had, however, in accordance with the practice referred to above, proved against the estate of MORRIS for a lump sum in respect of the four bills, and he now claimed to apply the surplus upon the two paid bills to make good the deficiency upon the other two. Clearly, however, this was a wrong to the parties who were liable on the former two bills. The parties liable upon the four bills were not the same, and, this being so, there could he no right to charge the parties liable upon any one bill more in the aggregate than 20s. in the £. The proofs in respect of the various bills had, therefore, to be separated and the surplus on the two overpaid hills handed back for distribution among the parties en

[ocr errors]
[graphic]
[graphic]
[merged small][ocr errors][merged small]

THE Land Transfer Act, 1897, deals with two separate matters : in Part I. it purports to establish a real representative, in Parts II. and IH. it amends the system of registration of title and provides for rendering registration compulsory. The connection between these two matters is very slight. The establishment of a real representative will facilitate dealings with registered land upon the death of the owner, but otherwise the change effected by Part I. is quite independent of registration, and there would have been obvious advantages in placing it in a separate statute. More attention could have been given then to the details of what constitutes the most important alteration in real property law of_ recent years. The plan which has been adopted of extending personal representation to cover real representation, and boldly giving to the personal representative in respect of real estate all the powers he has with regard to personal estate, pleases by its simplicity, but in practice it will probably be found that the diversities between personal and real estate raise nume nus points of difficulty.

Une of these, to which attention has already been called by various writers, relates to the vesting of the real estate of an intestate in the interval between his death and the grant of letters of administration. Section 1 of the Act provides, in su_b-section 1, that “ where real estate is vested in any person withouta right in any other person to take by survivorship, it shall, on his death, notwithstanding any testamentary dig. position, devolve to and become vested in his personal representatives or representative from time to time as if it were a chattel real vesting in them or him.” Section 2 provides for the administration of real estate in the same manner as personal estate, and it gives to the personal representatives in respect of real estate “ the powers, rights, duties, and liabilities of personal representatives in respect of real estate ”; save, however, that one of several joint personal representatives may not, without the authority of the court, sell or transfer real estate, and save, also, that the Act is not to “ alter or affect the order in which real and personal effects respectively are now applicable in or towards the payment of funeral and testamentary expenses, debts, or legacies, or the liability of real estate to be charged with the payment of legacies.” Subject to the powers, rights, duties, and liabilities thus specified, the personal representatives hold the real estate as trustees for the persons by law beneficially entitled thereto, and at the end of a year such beneficiaries can invoke the assistance of the court to compel a conveyance to them. If there is no reason for keeping open the administration beyond that time it may be assumed that a conveyance will be directed.

The general effect of these provisions is sutliciently clear. It is rendered impossible for a testator to interfere by his will with the devolution of the legal interest in his real estate._ That necessarily passes to his personal representatives. In their hands it becomes subject to whatever habilities can now be enforced against real estate, and for the purpose of satisfying such liabilities they have power either to sell or to mortgage it. In the interval, while it remains under their control they are responsible for the management, and must receive the rents. If necessity arises they can let the property, but this power will have to be exercised cautiously. In Oceanic Steam Navigation Co. v. Salim-bury (16 C. D., at p. 243), Jnssnn, M.R., speaking of an underlease by an executor of leasehold property, said: “It is quite true that, havin the legal estate m the leaseholds, he may in some cases undeiget them, and the 11I1d9}'l88-88 W111 he supported in equity as well as in law. But that is an exceptional mode of dealing with the assets, and those who _accept a title in that way must take it subject to the question whether it was the best way of administering the

[graphic]

assets.” Similarly, if the necessities of the case require it the executor is empowered to give notice to quit. Finally, when the real estate no longer requires to be retained for the purposes of administration, he must convey such as remains intact to the heir or devisee, and hand over also the surplus proceeds of any sale or mortgage.

These extensive powers of the personal representatives make it important to determine with certainty how far they become immediately exercisable on the death of the owner. In the case where executors have been appointed no difficulty arises. An executor derives his title under the will, and his rights and powers date from the death of the testator. The law, it has been said (Whitehead v. Taylor, 10 A. & E, p. 212) knows no interval between the testator’s death and the vesting of the right in his representative. He may accordingly do before probate all acts incident to the administration which do not require the actual production of probate of the will, and such acts will remain good even though he dies without having taken out probate (Williams on Executors, 9th ed., I., 250). He cannot, however, in general bring an action because in the course of the proceedings the probate will have to be produced. With an administrator it is different. He derives his title wholly from the letters of administration, and the property of the deceased vests in him only from the time of the grant (Woolley v. Clark, 5 B. 8: A., p. 745). Consequently there is no rule of law to assist the operation of the provision of the Land Transfer Act vesting the real estate in the administrator upon the death of the intestate by carrying back the administrator's title from the date of his appointment to the death. _

A similar question arose on the provision of section 30 of the Conveyancing Act, 1881, vesting trust and mortgage estates in the personal representatives of a sole trustee or mortgagee. “ Where," it is provided, “ an estate or interest of inheritance, or limited to the heir as special occupant, in any tenements or hereditaments, corporeal or incorporeal, is vested on any trust or by way of mortgage in any person solely, the same shall, on his death, notwithstanding any testamentary disposition, devolve to and become vested in his personal representatives or representative from time to time in like manner as if the same were a chattel real vesting in them or him." Under this provision it seems to have been assumed by FRY, J., in Re Filling’; Trusts (26 Ch. D. 432), that, in the absence of an administrator of a deceased sole trustee, the estate would vest in the heir-at-law, and upon the appointment of new trustees an order was made for vesting in them certain lands forming part of the trust estate “for the estate therein now vested in the heir-at-law of the deceased intestate trustee.” Subsequently administration was taken out to the deceased trustee’s estate, and the question was raised whether the legal estate in the real estate did not thereupon vest in his administrati-ix notwithstanding the vesting order. PEARSON, J., for the purpose of securing the trust estate, seems to have assumed that it did, and he made a new order that, notwithstanding the previous order, the land should vest in the new trustees for all the estate therein vested in the legal personal representative. Thus under one order or the other the legal estate was clearly vested in the trustees. But upon the question where the legal estate had been in the interval before the grant of administration, PEARSON, J., gave no decision. “The question is,” he said, “ what happens when there is no personal representative? If the legal estate does not vest in the heir, where is it? On the other hand, the wording of the section seems to evince an intention to exclude the heir.” In subsequent cases the difficulty has been got over by vesting the trust estate in the new trustees for the estate which was vested in the deceased trustee at the time of his death: Re Rackslraw’s Trusts (33 W. R. 559), Ra lVz'lliam.i‘ Trusts (ac Ch. D. 231).

As we have already stated, the question has already been: disoussed in relation to the Land Transfer Act by several writers. In a note contained in the adrlenrla to the last edition of Woodfall’s Landlord and Tenant (p. lxxv.) the view is taken that the heir-at-law stands in the shoes of the deceased landlord. for all such purposes as distraining, granting leases, and determining tenancies until the administrator has acquired altitle. This is the view which, in Ra Pi'lZe'ng’s Trusts, presenteditself as the most natural one, the estate devolving according to

[graphic]
[graphic]

the ordinary law until there was an administrator in whose favour the new statutory rule could operate. On the other hand it is pointed out by Mr. Ron13INs (Devolution of Real Estate, p. 19) that, even if the legal estate does vest in the heir pending the grant of letters of administration, no purchaser, mortgagee, or lessee could safely take from him a conveyance or lease, since the estate of the heir would be determinable on the appointment of an administrator. Mr. TYSSEN, in his Real Representative Law (p. 19) adopts the view, which PEARSON, J., referred to as the apparent intention of the Legislature, that all right of the heir-at-law, qua heir, is excluded pending the grant of administration, and for want of anyone in whom the legal estate can vest it must perforce remain in abeyance; unless, indeed, it is vested like the intestate’s personalty in the judges of the High Court. Formerly, as Mr. TYSSEN observes, the personal estate of a deceased intestate vested in the ordinary, pending the grant of administration. For the ordinary the Court of Probate Act, 1858, by section 19, substituted the judge of the Court of Probate; and under the Judicature Acts it seems probable that for the judge of the Court of Probate are substituted all the judges of the High Court. For practical purposes, of course, the result would be the same as if the freehold were in abeyance, and this seems to be the efiect of the new law. The Land Transfer Act, it is to be noticed, expressly says that the real estate vests on the death of the owner in his personal representative, and the fact that there is no personal representative ready to receive it does not seem to revive in the heir a right which is thus emphatically taken away from him. It would seem then that, ending the grant of administration, there is no one who canllegally deal with the real estate, though, of course, if the solvency of the intestate is above suspicion it will be safe to pay rent to the heir. Such payment, however, would be no discharge to the tenant if the circumstances of the estate made it necessary for an administrator subsequently appointed to call for the money over again. The practical conclusion is that administration should be taken out as speedily as possible. Under section l (3) of the Act it can be granted in respect of real estate only, although there is no personal estate; and tmder section 2 (4) the court in granting administration must have re ard to the rights of persons interested in the real estate. The ieir has it in his power, therefore, to protect himself.

[ocr errors][merged small][merged small]

A third edition of this book, the first edition of which, we believe, was only published in 1894, is a suflicient testimony to its merits. We described it when it first appeared as an admirable example of a text-book, and we see no reason to alter our verdict with regard to the present edition. The notes appended to the different sections are clear, accurate, and concise, and one advantage of the book is that difiiculties and questions arising, although not yet covered by any decision, are pointed out and discussed. By means of careful crossreferences the reader is directed to all the statutory provisions relating to the matter in hand, and a good index renders the contents of the work easily accessible. We could not desire a more convenient or complete book on the subject.

[ocr errors][merged small][merged small]
[graphic]

This book has for some years been considered a standard work on the liquor licensing laws, and has been in the hands of most lawyers interested in this branch of practice. The fact that it has now reached a twelfth edition, and that only two years has elapsed since the eleventh edition appeared, shows the popularity of the work; and the recent important and far-reaching decision make a new edition of “ Paterson " especially welcome at the present time. Although we have never admired the arrangement of the book, which in form is merely an annotated copy of the Acts of 1872 and 1874, still it is a singularly complete work and contains everythiu that can be expected in a book of its class. The reputation gained by it in years past will suffer in no particular at the hands of the present editor, who has given the profession a book thorou hly up-to-date and carefully revised. The consequences of the decision of the House of Lords in Boulter v. The Justices of Kent (46 W. R. 114; 1897, A. G. 569), as far as they have been recognized up to no\v, are noted in their proper places. It is quite certain, however, that the full consequences of this famous decision have yet to be revealed, and that for some years frequent references to the case will have to be made. The editor has evidently been fully alive to this, and has well consulted the convenience of his readers b5_ including in the appendix a full report of the judgments in the case.

L1cnNs1Ne PRACTICE (RETAIL Ssnns). Pnoonnoan AND EvID1=:NcE IN APPLICATIONS AND PROSEOUTIONS UNDER THE INTOXICATING LIQUOR LICENSING Acrs (ENGLAND AND WALES). Wrrrt Smrorns AND Foams. By O. F. CHRISTIE, Barrister-at-Law. Grant Richards.

The author of this work quotes the saying of Cockburn, C.J., that the Licensing Act, 1872, was “one of the most extraordinary jumbles he had ever met with,” and he sets himself the task of unravelling the jumble as far as possible. In this difiicult task he has achieved success to a considerable extent, and has produced a useful and carefully-written treatise on the liquor laws. The style of the book is distinctl good, and the subject is robably made as clear as it is capalile of being made. The book is, however, in our opinion, rather too condensed in some parts, and its practical value, moreover, is to some extent lessened by the entire omission of many minor matters, which probably the author would argue are outside the scope of his work, but which are closely connected with his subject. For example, the book is silent concerning the provisions of the Revenue Act, 1885, as to the adulteration of beer, the Act of 1883, prohibiting the payment of wages in public-houses. and the law forbidding publicans to deal in game. In the excellent chapter on certiorar-i the author does not hesitate to indicate that in his opinion the correctness of the decision in Reg. v. Shannan (1898, 1 Q. B. 578) is still opento question. In that case, it will be remembered, the court held that, as a consequence of BouZter’s case, certiorari no longer lies to licensing justices, and we may oint out that in Reg. v. Bowman (1898, 1 Q. B. 663) Wills, J., also intimated that he was not quite satisfied that the decision was right. The book is, on the whole, a useful addition to the literature on this subject, and in the appendix there will be foimd some valuable forms of notices of applications for licences and notices of appeal.

[graphic][merged small]

As the author of this work points out, the complicated state of the law of licensing is due mainly to the great number of amendments and additions which have been imposed upon the earlier Acts by later legislation. The object he therefore aims at is to lessen the trouble of referring to a large number of Acts by grouping together under a propriate headings those sections in the various statutes which relate to a particular subject, setting out the text of those sections verbatim and adding notes and references to decided cases. This plan has undoubtedly great advantages, and the author has carried it out most successfully, and has given lawyers a book in which it is possible to find what is wanted with the minimum of trouble. As, however, to carry out such a plan completely, a section of an Act might have to be repeated in some cases under several distinct headings, all the important statutes are set out in full in the Appendix. The notes give the effect of reported decisions accurately and clearly, and very few omissions can be found of cases of real importance or of statutory provisions which in any way relate to the subject. The important recent cases down to a very recent date are all carefully noted. In short, the author has done his work well, and we believe the profession will find the book useful and reliable. - I

[graphic]

HANDBOOK ox TIIE LICENSING Acrs AND Tnsm AD.\iIXIS'I‘RATION. By ALFRED T. Davms, Solicitor and Notary Public, Cursitor of the County Palatine of Lancaster. THIRD EDITION. Maculillun & Co. (Limited).

This little book aims at presenting in a concise form a handy guide to the law regulating the sale of intoxicating liquor. It is apparently intended, not so much for the use of the legal profession, as to enable intelligent persons connected with “ the trade ” to inform themselves as to the law on any ordinary matter that may occur. It has now reached a third edition, and therefore no doubt satisfies a demand. This is by no means surprising, as the book contains a large amount of general information under headings in alphabetical order, clear and practical directions to persons desiring the grant, renewal, or transfer of licences, some useful forms not to be found in more pretentious works, and a table of offences. It is evidently the work of a practical man with a sound knowledge of the subject.

[ocr errors][ocr errors]

This is a small book consisting of only about 100 pages, but for its size it contains an extraordinary amount of information on the law of licensing. If this branch of the law formed one of the subjects for the Solicitors’ Final Examination it would be an ideal book for the student," for it is clear, accurate, and well-written. The author is to be congratulated on the ability with which he has compiled an excellent summary of a diiiicult subject, which, as he says, “ affords perhaps one of the very best examples of tessellated legislation.” In practice, however, something more than a summary is required, and it is constantly necessary to refer to the very words of the numerous statutes governing this important subject. Such words are, of course, not to be found in a book of this size, and therefore it cannot aim at entering the lists as a competitor with larger well-known text-books. At the same time, as far as it goes, the book is reliable, and willbe acceptable to many. It also contains in the appendix some useful forms not easily to be foimd elsewhere.

[merged small][merged small][merged small][merged small][merged small][merged small][merged small][merged small][ocr errors][merged small][merged small]
[graphic]
[merged small][merged small][merged small][ocr errors]
[ocr errors]
[graphic]

the plaintiff was therefore entitled to the injunction asked for. Exchange Telegraph 00. v. Gregory (1896, 1 Q. B. 147; 44 W. R. Dig. 44) was referred to.

Ciu.sxiii.i., J .—-I do not think that any case has been made out which will justify me in granting an injunction. I do not refuse the injunction upon the ground that a mortgagee after reconveyanee would not be under the same obligations as a vendor. It is not necessary to decide that point. The obligation which a vendor is under is that he may not, although he may set up a rival business, solicit the customers of the old firm to leave the old firm and to come to him. It depends upon the nature of the business whether the request to deal with him would be a request to leave the old business. \Vhere the business is that of a newspaper proprietor, it appears to me that a request by the vendor to a person to buy his newspaper is not a request to leave off buying the old newspaper. In the present case I do not find a breach of any obligation which Kilner would be under if he had sold the newspaper to the plaintiff. An instance relied on by the plaintiff is that of Mrs. George. It is said that Smart, jun., endeavoured to persuade her to sell the new newspaper, and told her a falsehood by falsely stating it was to be started in connection with the C'amb1~idge Daily .\'cws. I do not think that the plaintiffs evidence upon this point is sufilcient, and it is contradicted. The next instance complained of relates to the plaintiff’s employees. Now, it is part of the common law that a person may not induce aiiother’s servant to break his contract of service. The decision in Allm v. Flood (46 W. R. 258; 1898, A. C. 1) shews that it is not wrong to induce a servant to leave his master's employment, provided that the servant commits no unlawful act in leaving his master's service. In the present case the plaintitf’s servants committed no breach of contract, and therefore the decision in Allm v. Flood is directly in point. The instance of Robert Cleaver, who is alleged to have been requested to break his contract with the plaintiff, is the only shadow of a case made out upon the plaiutitl"s behalf. It appears to me that this might be an attempt upon the part of Smart which would be sufficient to justify an injunction against the person so attempting to commit a wrong. But, in my opinion, this one case is not sufficient to justify me in granting an injunction against the defendant Kilner. I do not think that there is sufficient evidence that Kilner authorized it in such a way that it can be imputed to him that he attempted to do an unlawful act. There is no ground for granting an injimction against the Cambridge Gazette in the absence of any sufiicient case against Kilner. As to the allegations with regard to Mrs. George, I think that in all probability there is some mistake on the part of Mrs. George in reference to that matter. It might assist a new newspaper to say that Smart was editor of it, but that would be no wrong thing. The plaintiff would be entitled to say that the Cambridge Gazette was edited by the gentleman who so successfully edited the Cambridge Daily News. The costs of the motion will be the defendants’ costs in the action.—Coi‘xsi~:i., Everett, Q.C. (E. Ford with him) ; Alexander, Q.C. (W. Bakvr with him) ; Glauson. Somcrrons, Stanley Evrms if 00., for 6'. P. Jones, Cambridge; Torr, Gribble, Oddie, §- Sinclair; E. Bromlcy.

[ocr errors][ocr errors][ocr errors]

This was a motion on behalf of the plaintiffs, Messrs. Hobbs, Hart, & Co. (Limited), that the defendants, their agents, servants, workmen, and others employed by them might be restrained from pulling down, cutting, under-pinning, raising, or otherwise injuring or interfering with the party wall between the premises Nos. 75 and '76, Chcapside, in the City of London, and from appointing any surveyor under section 91, sub-section 3, of the London Building Act, 1891, or otherwise until the trial of this action or further order, otherwise than in accordance with the provisions of the said London Building Act, 189-1. In support of the motion it was said that the plaintiffs were the owners of 76, Cheapside, and the defendant Grover was the building owner of adjoining premises, 75, Cheapside, the defendant Roe being his surveyor appointed under the London Building Act, 189-1. The premises 76, Cheapside were separated from No. '75, Cheapside by a wall which is a party wall within the meaning of the London Building Act, 1891. The plaintiff company occupied the basement, ground floor, and first floor of the promises No. 76, Cheapside, as showrooms, warehouses, and offices, and the remaining portion of the building was let to tenants. The building was erected in or about the year 1888, and was specially constructed to carry the great weights of the iron safes and strong rooms which were on show there, and any interference with the party wall between that and the adjoining building would have to be carried out with the greatest care and under strict supervision. If the party wall was to be taken down to be rebuilt, or seriously interfered with, it might entail the removal of a largo portion of the plaintiff company's safes and tho taking of other temporary premises by the company, and in order to make the necessary arrangements for this the company would require at least several months’ notice, otherwise very great loss and inconvenience would accrue. On the 2nd of September last the plaintiff company received from the defendant Grover the following party-wall notice purporting ing tobe given under section 90 of the London Building Act, 1894: “ I, the undersigned, being the building owner of No. 75, Cheapside, in the county of London, hereby give you notice that upon the expiration of two months from the date hereof I intend to exercise the rights conferred upon the building owner by section 88 of the above Act in respect of the party structure separating N o. 7 5, Cheapside from No. 76, Oheapside adjoining

[graphic]

thereto on the east side thereof, that is to say: To execute such of the works to the party structure as may on survey be found necessary or desirable-namely, To make good, underpin, or repair the same where defective or out of repair; to pull down and rebuild the same wholly or in part, if (1) so far defective or out of repair as to make such operation necessary or desirable for the intended new building ; (2) not conformable with the regulations of the said Act; (3) of suflicient strength for the intended new building. To raise or underpin the same or any external wall built against the same as may be necessary or desirable for the intended new building. To cut into the same for any lawful purpose. To cut away any footings, jambs, flues, or other projections, as may be necessary in order to erect the intended new building. To out or take down such parts of any wall or building of the adjoining owner as may be necessary in consequence of the same overhanging the ground of the building owner in order to erect the intended new building. To perform any other necessary works incident to the connection of the said party structure with the premises adjoining thereto." It was submitted that the notice was bad under the London Building Act, 1894. It did not say what the defendants proposed to do. The London Building Act, 1894, imposed an obligation upon the building owner to give particulars of his proposed scheme. If a notice such as this were sufficient, and intended by the Legislature, the Act would have expressly said that it was to be a notice for all or any of the works mentioned in section 88 of the Act. The building owner need not set out the details of what he proposed to do, but he must disclose the nature of his proposed scheme. Upon behalf of the defendants, an undertaking not to act upon that part of the notice which dealt with raising the wall without giving the plaintiffs further notice was offered.

cl{AN.\‘BIiL, J .—The first part of the notice seems to me to be quite good, but I have some doubt as to whether the part relating to raising the wall is good. Upon the defendants undertaking not to act upon that part of the notice which deals with raising the wall without giving the plaintifis further notice (without prejudice to any question), and to give the plaintiffs inspection of their plans, and to give the plaintiffs a further ten days to appoint a surveyor, there will be no order except that costs be co.-ts in the action.—-Couusnn, Illulligan, Q.C. (J. Gatcy with him) ; Alamnder, Q,.C. (A. H. Jesse! with him). Somcirons, Savory §- Stevens ; Emmanuel Q‘ Sivmnonds.

[Reported by J. E. Awous, Barrister-at-Law.]

[graphic][merged small]

WORKMBN'S COMPENSATION Acr, 1897—BAsrs on Wiiicn COMPENSATION is PAYABLE.

This was the first case brought under the above Act in the Birmingham County Court. It was an arbitration at the instance of an injured workman. The undisputed facts were as follow: The applicant was Richard Thomas Jones, described in his application for arbitration as “ blacksmith,” employed at the time of accident as a “fitter.” The respondents were C. 8: W. Walker, of Donnington, Salop, engineers, who were engaged in the erection of a gas-holder for the Birmingham Corporation at Saltley. Jones, who had been out of work for seven weeks, called several times at the Saltley \Vorks to ask Monk, the respondents’ foreman there, for employment, stating that he had previously worked as a smith. On the last of the occasions, about 7.30 a.m. on the llth of July, Monk told Jones that there was no smiths‘ shop up as yet, but that he could go and help a fitter named Foxhall who was engaged in fixing guide-rails to stays for a gas tank. About 10.30 a.m., when Jones had been at work some two and a-half hours, Foxhall was bolting the rails at the top and Jones was holding them in position at the bottom, when a sledge-hammer, in use by another workman at work fifty feet above, accidentally brokc, and the head fell and struck Jones in the back, inflicting severe injuries which had caused him total present incapacity to work. \V hen Monk put Jones on to work, nothing was said as to rate of wages. In his previous employment as a smith his weekly earnings had averaged 33s. 6d. per week. He therefore claimed the maximum allowance under the Act —viz., half wages at that rate, or 16s. 9d. per week, after the first fortnight. It was admitted that the current rate of labourer’s wages was ills. per week, and that the respondents had tendered compcnsation accordingly, at the rate of 12s. per week, which the applicant had refused, and instituted these proceedings to recover the larger sum. The evidence as to the kind of work Joncs was doing before the accident occurred was conflicting. For the applicant, reference was made to Schedule I., s. 1 (b) of the Act, which provides that the amount of compensation payable shall be as follows: “ Where total or partial incapacity for work results from the injury, a weekly payment during the incapacity after the second week, not exceeding fifty per cent. of his average weekly earnings during the previous twelve months, if he has been so long employed; but if not, then for any less period during which he has been in the employment of the same employer, such weekly payment not to exceed one pound.” It was argued that, though, no doubt, the language of the section more properly applied to cases where the workman had been actually employed for more than a week, there was nothing to preclude an applicant, in a case like the present, where the actual employment had existed for less than a week, from claiming compensation computed on his average weekly earnings in a. previous and different employment. The section said nothing about any contract between employer and employed, and in a case like this an agreed rate of wages to be paid, whether expressed or implied, could not be taken as a basis. Moreover, “ earnings ” meant wages actually received for work done, and not wages agreed to be

« PreviousContinue »