K.iiiis. 
 
 REPORTS OF CASES 
 
 IN THE 
 
 Hampshire County Courts 
 
ao\ 
 
 ^^ 
 
 
!,_ ,_ Cornell University Library 
 
 KD 7228.A52H23 1920 
 
 •'sports of cases in the Hampshire county 
 
 3 1924 017 807 474 
 
REPORTS OF CASES 
 
 in the 
 
 Hampshire County Courts 
 
 during the years 
 
 1917- 1920 
 
 Being Judgments delivered by 
 JUDGE BARNARD LAILEY. K.C. 
 
 (Author of " Extraordinary Traffic on Highways"). 
 
 EDITED BY 
 
 P. E. B. DUFF (some time his Pupil), 
 
 of the Inner Temple, Barrister-al-Law, B.A. 
 
 Late Captain attached as Courts Martial 
 Officer to the Armies in France. 
 
 Publisbed by W. H, Barrell, Ltd., 114 High Street, Portsmouth. 
 
B 70 6 10 
 
PREFACE. 
 
 IN view of the attention which has of late been 
 directed to the work and jurisdiction of the 
 County Courts, it is thought that the considered 
 judgments during the last three years in a typical 
 Circuit may be of sqi^ little interest, as giving an 
 indication of the diversity of work which now comes 
 before the Courts. It will be noted that a large pro- 
 portion of the cases calhng for considered judgments 
 concern subject matters which have, by successive 
 Acts of ParHament, been added to the duties of County 
 Court Judges since the Courts were first established 
 — Workmen's Compensation, Tithe Acts, Bankruptcy, 
 Equity Jurisdiction, War lyCgislation and Orders in 
 
 Council, etc. 
 
 F.E. B. D. 
 
 IvONDON, JirNE, 1920. 
 
Cornell University 
 Library 
 
 The original of this book is in 
 ; - the Cornell University Library. 
 
 There are no known copyright restrictions in 
 the United States on the use of the text. 
 
 http://www.archive.org/details/cu31924017807474 
 
INDEX 
 
 Sedgwick v. Bourne 
 
 Tithe — New Church — Transfer of 
 Endowments — Consecration 
 
 Page 
 
 SWITHINBANK V. McCREAGH 
 
 Tithe— Due Date—Mode of En- 
 forcement . . . . . . 18 
 
 Smith v. French 
 
 . . Covenants running with Land . . 21 
 
 SiDDALL V. Manchester Dry 
 Docks Co. 
 
 Workmen's Compensation — Accident 
 arising out of Employment — 
 Added risk . . . . . . 33 
 
 Stevens i/. L. & S.W. Rly. Co. 
 
 Workmen's Compensation — Accident 
 arising out of Employment — 
 Added risk 39 
 
 Lawes v. Mowlem 
 
 Workmen's Compensation — Wife's 
 Separation Order — Measure of 
 Compensation . . . . 44 
 
 Eastmans f. Dunning 
 
 Workmen's Compensation — War 
 Addition — Redemption 
 
 47 
 
 Courtney v. Owners of 
 " The Warilda " 
 
 Workmen's Compensation — Husband 
 and Wife living apart — Depen- 
 dency . . . . . . 49 
 
 Coldman v. Hill 
 
 Bailment — Theft — Burden of Proof 53 
 
 Cutler v. Fareham Steam . . Bailment — Laundry Co. — Loss by 
 
 Laundry Co. Fire . . . , . . 57 
 
 CoxEN V. Bowling 
 
 Bailment — Boarding House — Loss 
 
 of Goods — Unknown cause . . 62 
 
 Jenkyns v. Southampton Steam- Carrier — Loss of Goods — Personal 
 
 ship Co. . . . . . . Luggage — Borrowed Articles . . 65 
 
Page 
 
 INDEX (continued). 
 
 Daphne y. Bailey .. .. Landlord and Tenant — Forcible entry 68 
 
 Lloyd Evans v. Dorchester . . Highway — Misfeasance or Non- 
 
 R.D.C. 
 
 feasance 
 
 75 
 
 Osborne v. Colenutt . . . . Cellar-flap — Blind pedestrian . . 79 
 Kingston (Portsmouth) Electric Nuisance from Smoke — Injunction 
 
 Theatre v. British Vegeta- 
 ble Products, Ltd. 
 
 Parker v. Williams 
 
 -War-time Suspension 
 
 Overhanging Eaves-troughing- 
 Nuisance 
 
 85 
 
 91 
 
 SouTHSEA Beach Mansions Co. v. Percolation from Drains — Doctrine 
 
 Parkes 
 
 Same u. Same 
 
 of Fletcher v. Rylands — Lia- 
 bility of Owner, Lessee or 
 Occupier . . .. . . 94 
 
 Injury to real Estate — Death of 
 Defendant — Abatement — Prac- 
 tice 101 
 
 Weeks v. Chivers 
 
 Defence of Realm Regulations — 
 Sale of Hay — " Producer " — 
 "Seller" 104 
 
 COGGAN V. HOBBS 
 
 WiLKINS y. Blessley 
 
 Defence of Realm Regulations — 
 Sale of Pigs — Illegality — Doc- 
 trine of particeps criminis . . 109 
 
 Increase of Rent Acts — " Rateable 
 
 Value" 117 
 
 Hull v. Batt 
 
 Best u. Paige 
 
 Increase of Rent Acts— Sale by 
 Mortgagees — " Satisfactory 
 Ground " — Discretion .. 122 
 
 Master and Servant — Seduction 
 from Service — Tort by public 
 officer 128 
 
INDEX (continued). 
 
 Page 
 
 Chipp v. Rees 
 
 Master and Servant — Competitive 
 Business — Restraint of Trade- 
 Injunction . . . . .. 131 
 
 Knight v. Mayor, &c., of Ports- Master and Servant — TramcarCon- 
 
 MOUTH .. .. .. ductress — Truck Acts .. 134 
 
 Bromley v. Fear & Walker 
 
 Sale of Land — Deposit — Stakeholder 
 — Vendor's Default — Agent's 
 Rights — Damages — Quantum 
 meruit . . ■ . . . . 140 
 
 Hill i/. Page 
 
 Sale of Land — Commission — Effec- 
 tive cause of Sate . . . . 152 
 
 Griffiths v. Gale 
 
 Equity Side — Administration action 
 — Limit of Jurisdiction — 
 Burden of Proof — Practice .. 156 
 
 Jerram u. Hayter 
 
 Intestacy as to real estate — Repairs 
 — Liability of Administrators 
 — Warranty of Authority .. 161 
 
 Jeffery v. Paget 
 
 Affiliation Order — Marriage of 
 
 Mother— Effect on Order . . 168 
 
 Gelston i/. King 
 
 Things ferae naturae — Swarm of 
 
 Bees — Conversion . . . . 170 
 
 Re Arthur Wise 
 
 Bankruptcy — Shares — Right of 
 Disclaimer — Vesting Order — 
 Extent to which Articles of 
 Association bind Trustee . . 173 
 
 Yeomans v. Eames 
 
 Club-Committee — Personal Lia- 
 bility 180 
 
 Barton v. Sheppard 
 
 Statute of Limitations — Acknow- 
 ledgment — Sufficiency .. 189 
 
SEDGWICK V. BOURNE. 
 
 Tithe Rent-Charge — New Church — Validity of Consecration and 
 Transfer of Endowments — Induction and Status of Incumbent 
 Vesting of Tithes — Ecclesiastical Law. 
 
 The XVIth Canon of the Council of London (A.D. 1102) 
 provides that a church shall not be consecrated donee provision 
 be made for the incumbent and the church. The Acts 8 and 9 
 Vic. c. 70 and 19 and 20 Vic. c. 55 empower the Ecclesiastical 
 Commissioners, on a certificate of the Ordinary and other 
 persons that it will be for the convenience of a parish that a 
 new church shall be substituted for an old one, to declare that 
 such new church, being duly consecrated, shall be substituted 
 accordingly, and to transfer the endowments of the old church 
 to the new church and the incumbent thereof and his successors. 
 
 A parish church having fallen into disrepair, a new one was 
 built, and, on Nov. 12, 1891, declared consecrated by the Bishop 
 of the Diocese. On Dec. 10, 1891, the Ecclesiastical Com- 
 missioners, on a certificate as aforesaid, executed an instrument 
 reciting that consecration had taken place, and declaring a 
 substitution of the new church and a transfer of the endowments 
 of the old church to the new church and the incumbent thereof 
 and his successors. On a vacancy occurring, the applicant 
 was in 1905 presented to the living and inducted as rector of 
 the parish at the new church, where he read himself in. On an 
 application by the rector for an order against one of the land- 
 owners of the parish for payment of arrears of tithe rent -charge, 
 Hei<d that .whether or not the Canon Law in such a case forbids 
 consecration antecedently to a transfer of endowments (as to 
 which quaere), the Tithe Rent-charges attached to the benefice 
 were, by force of the statute and the instrument executed 
 thereunder, effectually vested in the applicant, and an order 
 for their recovery under the Tithe Acts was made against the 
 respondent landowner. The decision of the Court of Arches 
 in a Faculty Case raising the same point (Re St. Mary Bishop- 
 stoke, 26 T.I,.R. 86, followed). 
 
 JUDGMENT. 
 
 The ground a County Court Judge nowadays finds 
 himself invited to cover is wide and varied, but I think 
 this case approaches the limit of what — in his more 
 
hopeful moments, at any rate— he may expect to 
 encounter. I feel tolerably assured, however, that the 
 conclusion at which I may arrive in the judgment I 
 am called on to deliver is a matter of profound in- 
 difference to the parties, who are avowedly making 
 use of this Court as a way-leave to the ultimate Court 
 of Appeal. The applicant, as Rector of the Parish of 
 Bishopstoke, applies for an order for the recovery of 
 a sum of 31. 14s. 5d. by way of tithe rent-charge for 
 two years, alleged to have become payable on 1st 
 October, 1918, out of certain lands in the parish (the 
 grounds and gardens of Bishopstoke Manor House) 
 owned and occupied by the respondent. The notice 
 of opposition raises one point only, viz., that the 
 applicant is not the owner of the tithe rent-charge in 
 question, by reason of him not being the lawful incum- 
 bent of the living, and subject to that point the 
 respondent admits the claim. No facts are in dispute, 
 and the following documents(or, in one or two instances, 
 agreed copies) were put in evidence : — 
 
 (1) 1891. — ^Petition by the then Rector and churchwardens of 
 the parish of Bishopstoke to the Bishop of Winchester for the 
 consecration of a new church, and for the same to be declared the 
 parish church, in lieu of the existing church. 
 
 (2) 12th Nov. 1891 . — Sentence and decree according to the prayer 
 of the petition by the Suffragan Bishop of Guildford, acting under 
 a commission in that behalf, dated the 2nd May 1891. 
 
 (3) 10th Dec. 1891.— Instrument under the seals of the Eccle- 
 siastical Commissioners, the Bishop of Winchester, and the then 
 rector, substituting the new church for the old church as the parish 
 church, and transferring the endowments, emoliunents, and rights 
 belonging to the old church to the new one and to the rector thereof 
 and his successors for ever. 
 
 (4) 30th June 1905.— Certificate of Bishop of Winchester that 
 the applicant had before his collation made the declarations of 
 assent and agabst simony, and taken the oaths of allegiance and 
 canonical obedience. 
 
 (5) 30th June 1905.— Instrument of collation under the seal of 
 
 10 
 
the Bishop of Winchester instituting the applicant to the rectory 
 of the parish church of Bishopstoke. 
 
 (6) 30th June 1905. — ^Mandate under seal of the Bishop to the 
 Archdeacon of Winchester for the induction of the applicant to 
 the rectory. 
 
 (7) 1st July 1905. — ^Declaration under the seal of the archdeacon 
 (annexed to the mandate) of the induction of the applicant. 
 
 Towards the end of the last century the then 
 existing Parish Church had fallen into disrepair, and, 
 as was represented by the petition above referred to, 
 become inadequate for the purposes of divine worship 
 and service. In consequence, a new church was built 
 on land duly conveyed for the purpose, and was com- 
 pleted about the year 1891, when steps were taken 
 with a view to the new church becoming the Parish 
 Church in lieu of the old one. By the sentence and 
 decree of November 12, 1891, the new church was 
 declared by the Bishop duly consecrated, and by the 
 instrument of substitution of December 10, 1891, the 
 Ecclesiastical Commissioners, acting under the powers 
 conferred on them by the Acts 8 and 9 Vic, c. 70, and 
 19 and 20 Vic, c 55, purported to transfer all the 
 emoluments theretofore belonging to the old Parish 
 Church or to the Rector thereof (including the Tithe 
 Rent-charges in question) to the new church and to the 
 Rector thereof and his successors for ever. From 
 this time onwards, whatever was its legal status, the 
 new church was in fact used as the Parish Church. 
 In 1905 the present applicant was presented to the 
 living, which is in the gift of the Bishop of Winchester, 
 and, as is evidenced by the documents specified above, 
 he was inducted on July 1, 1905. It was admitted on 
 his behalf at the hearing that the Induction and 
 ' Reading-in ' took place at the new church, and there 
 only. About this time a question arose as to what 
 steps should be taken with regard to the old church, 
 and a Commission was appointed by the Bishop to 
 
 11 
 
consider the matter. The Commission having reported, 
 the Bishop in a letter to the Rector (the applicant), 
 dated May 29, 1906, expressed the view that the old 
 church ought not to be allowed to become a discredit 
 to the parish by passing into a condition of ruinous 
 decay, but should either be restored and used again or 
 be pulled down. There was acute difference of 
 opinion in the parish as to which course should be 
 adopted, and as a result a question,, doubtless of great 
 interest to ecclesiastical lawyers, arose and was litigated. 
 In 1908 a petition was presented by the Rector and 
 Churchwardens for a Faculty authorising the removal 
 of the bells, clock, etc., from the old church to the new 
 one, and by a supplemental petition in the following 
 year a Faculty was sought for {inter alia) the demolition 
 of the nave of the old church. I notice that prominent 
 amongst the names of the objectors in those proceedings 
 is that of the present respondent. The two petitions 
 were ultimately considered together by the Chancellor 
 of the Diocese, and by his judgment, dated June 4, 
 1909, the objections to the petitions were over-ruled 
 and a Faculty decreed substantially as prayed. The 
 main objection urged — or one main objection, at any 
 rate — was that the new church had not been duly 
 consecrated, for reasons which I shall have to state in 
 detail later . An appeal from the Chancellor' s j udgment 
 was carried to the Arches Court of Canterbury, and there 
 dismissed with costs on November 17, 1909. The case 
 on appeal is reported in 26 T.I,.R., 86. It was stated 
 at the Bar that want of funds deprived the Privy 
 Council of the opportunity (which I could wish it had 
 enjoyed) of deahng with the controversy. That diffi- 
 culty appears now to have been overcome, and the 
 confessed object of the notice of opposition to the 
 application before me is to fight the battle of 1909 over 
 again and carry it as far as the Constitution admits. 
 
 12 
 
No doubt the question will ultimately be laid, to rest 
 in the House of I^ords. Requiescat in pace. 
 
 Accepting the position that the onus was on him, 
 Mr. Trapnell, for the respondent, in an able argument, 
 contended that the Rector is, in effect, no Rector, but 
 a mere usurper, by reason of an irregularity in the 
 proceedings of 1891, the effect of which, so it is con- 
 tended, is that he was inducted and read himself in at 
 an edifice which, like himself, is an usurper and no true 
 Parish Church. The point taken is that the Instru- 
 ments of November 12 and December 10, 1891, are in 
 the wrong sequence, and that, for the validity of the 
 consecration of the new church, the transfer of endow- 
 ments should have preceded instead of followed it ; 
 the result of the converse course, it is said, being that 
 the endowments never vested in the applicant. This 
 objection was, as I have mentioned, taken and fully 
 contested in the 1909 proceedings, and the applicant's 
 solicitor relied on the judgment of the Court of Arches 
 as conclusive. It was, however, urged by counsel for 
 the respondent that, in point of law, that judgment is 
 of no authority in this case ; and I. am afraid he is 
 right, and that the decision of the Ecclesiastical Court 
 does not bind me sitting here to administer the Tithe 
 Acts in a Court of statutory creation. If this be so, it 
 is incumbent on me, as best I can, to form and express 
 my own view. Apart, however, from the respect to 
 which the judgment of the Court of Arches is entitled, 
 I should, in the circumstances, think it highly incon- 
 venient if I found myself forced to take a different view 
 from that arrived at by what I cannot but regard as a 
 more appropriate tribunal for dealing with such a 
 question. 
 
 The argument on behalf of the respondent was to 
 the following effect : — (1) The Canon I^aw, from the 
 time of Justinian, if not earlier, has required the 
 
 13 
 
antecedent, or at least the concurrent, provision of 
 endowment as an essential to the validity of consecra- 
 tion : see Gibson's 'Codex' (1761), pp. 189-202, 
 referring to the Ilird Institute and the Vth Canon of 
 the Council of Bracara ; Mylne's ' Canon Law,' 
 referring to the Decretals of Pope Gregory IX. of 1221. 
 
 (2) The Canon Law was specially adopted in this 
 country by the Council of London in 1102, and, save 
 in so far as subsequently altered by statute, is the law 
 of the land in matters ecclesiastical : see Kemp v. 
 Wickes (3 Phill., 264, 276) ; Lord Abinger's judgment 
 in Reg. v. Miller (10 C and F., at p. 745) ; letter of 
 Lord I^ndley in Times of September 23rd, 1907. 
 
 (3) The XVIth Canon of the Council of London 
 declares Ne ecclesia sacratur donee providiantur neces- 
 saria et presbyter o et ecclesiae. This Canon has ever 
 since been accepted as the law of England : see 
 Phillimore's ' Ecclesiastical Law ' (2nd Ed., p. 1388) ; 
 Cripps' 'Church and Clergy' (6th Ed., p. 391); 
 Lord Halsbury's ' Laws of England ' (Vol. XI., par. 
 1427). (4) It has, indeed, received statutory recogni- 
 tion : see 1 and 2 Will. IV., c. 38, s. 2 ; 35 and 36 Vic, 
 c. 49. ss. 2 and 3 ; Williams v. Brown (1 Curtis, 53). 
 (5) If there are any indications to the contrary in the 
 Act 8 and 9 Vic, c. 70, they are not sufficiently strong 
 to amount to an implied abrogation of the pre-existing 
 rule : see Seward v. Owners of Vera Cruz (10 A. C, at 
 pp. 68, 69). (6) In this case, there being no provision 
 of endowments until the execution of the Instrument 
 of Transfer of Endowments by the Ecclesiastical 
 Commissioners on December 10, the prior consecration 
 was invahd, and the subsequent induction of the 
 applicant as Rector a nullity : see, as to induction 
 Keen v. Derry (L-R. 1894, 3 Ch., 178). 
 
 That was the argument, and having considered it, 
 and the authorities cited, the conclusions to which 
 
 14 
 
I have come are these : — 1'he Canon I^aw undoubtedly 
 aimed at preventing the inconvenience of land being, 
 by consecration, sterilised for secular use without the 
 necessary pecuniary provision being secured for its 
 effective use for religious purposes, and I have no doubt 
 that the ordinary practice has been for endowment to 
 precede consecration. I am, however, by no means 
 satisfied that in the particular circumstances of this 
 case necessaria were not, at the time of consecration, 
 " provided " in such a sense as to satisfy the XVIth 
 Canon, or that the course the bishop saw fit to take 
 offended against the Canon I^aw : it is to be observed 
 that the primary meaning of donee, according to 
 standard dictionaries, is not " until " but " so long as " 
 or " while." Be this as it may, I find no authority to 
 support the proposition that the sentence of consecra- 
 tion, which the bishop in fact pronounced, followed 
 after a short interval by provision of adequate neces- 
 saria, was invalid and of no effect. Whilst not 
 unmindful of the well-known controversy as to the 
 relative efficacy of pronouncements by ecclesiastical 
 and legal dignitaries,* I think when the bishop, by the 
 sentence of the 12th Nov., declared the new church 
 consecrated it was consecrated, it and its site there- 
 upon becoming in the eye of the law solum sacrum. 
 Still less ground do I see for doubting the effective 
 force of the transfer of endowments to the new 
 church and the incumbent thereof. The Act 8 & 9 
 Vict. c. 70, s. 1 (read with 19 & 20 Vict. c. 55) empowers 
 
 *Can the learned judge have had in mind the discussion 
 between a churchman and a layman as to whether a bishop or a 
 judge was the greater power, the churchman supporting his view by- 
 pointing out, that whilst a judge's order could not go beyond " You 
 be hanged," a bishop could pronounce " You be damned." and the 
 layman replying, " Yes, but when a judge says ' You be hanged,' 
 you are hanged " ?. — Ed. 
 
 15 
 
the Ecclesiastical Commissioners, on a certificate and 
 with consents, which were here made and given, to 
 declare that a new church, being duly consecrated, 
 shall be substituted for an old church, and to transfer 
 the endowments, emoluments, and rights belonging 
 to the former to the latter ; and sect. 2 provides that 
 the incumbent of the old church shall be the incumbent 
 of the new church. So far from the statute requiring 
 substitution and transfer to precede consecration — or 
 recognising the need therefor — the language used to my 
 mind contemplates the reverse order, and does not 
 authorise the transfer of endowments from a consecrated 
 to an unconsecrated church. Without attaching over- 
 much importance to it, I may mention, in passing, that 
 on the page of Phillimore's " Ecclesiastical I^aw " 
 containing the passage to which Mr. Trapnell drew my 
 attention (p. 1388) the learned author observes : 
 " The law takes no notice of churches until they are 
 consecrated " ; and the passage in Cripps' " Church 
 and Clergy," on which Mr. Trapnell relied, speaks of 
 substitution following consecration. Nor is there any 
 risk of inconvenience from premature consecration 
 arising when the endowments are already existing and 
 defined. The endowment of the new parish church of 
 Bishopstoke was not a matter of doubt or uncertainty, 
 depending (as may be the case when a new extra- 
 parochial church is concerned) on the caprice of 
 prospective pious donors ; it was common knowledge 
 that the endowment was to consist of a transfer, by 
 what may well be regarded as the purely formal, 
 ministerial act of a pubhc body, of the emoluments 
 already attached to the benefice. The instrument of 
 the 10th Dec. recites that dedication has taken place, 
 and the Ecclesiastical Commissioners in unqualified 
 terms declare a transfer of all the endowments to the 
 new parish church and the incumbent thereof and his 
 
 16 
 
successors in perpetuity. That instrument was, in my 
 opinion, authorised by the Act of ParHament and 
 effective according to its tenor. At the time the 
 applicant, the present rector, was inducted and read 
 himself in, both consecration and transfer of endow- 
 ments had long before been declared, by instruments 
 individually regular and in due form. He was not 
 inducted to a barren benefice, and to my mind the 
 order in which the two events had occurred was 
 immaterial as regards his status. In short, I think 
 he is the rector of Bishopstoke. I greatly doubt if the 
 vaUdity of the consecration can be questioned in this 
 court, but assuming that it can, and assuming also 
 that in the particular circumstances the consecration 
 was by Canon Law irregular, I am of opinion that the 
 tithe rent-charges attached to the benefice vested in the 
 applicant on his induction by force of the Act 8 & 9 
 Vict. c. 70, and the instrument of the 10th Dec, 1891. 
 
 It follows that I find myself able, as well as 
 willing, to arrive at the same result as that reached by 
 the chancellor of the diocese and the Dean of Arches 
 ten years ago. There will be an order as claimed by 
 the applicant, and, if it should be necessary, I appoint 
 Mr. George Tanner, an officer of this court, to distrain. 
 The respondent must pay the costs. 
 
 On the applicant's application I give a certificate 
 for taxation on scale C, on the grounds that the case 
 involves difficult points of law, and is of general or 
 public interest. 
 
 Note. — ^An appeal in this case was heard on 19th March, 1920, 
 by Atkin and Younger, I/JJ., sitting as a Divisional Court, and 
 dismissed. I<eave to appeal further refused. (36 T.I^.R. 449). 
 
 17 
 
SWITHINBANK v. McCRBAGH. 
 
 Tithe Rent-Charge — Due Date — How enforceable. 
 JUDGMENT. 
 
 In this case the applicant, who is the Rector of 
 the Parish of Wonston, seeks an order for the recovery 
 of half-a-year's Tithe rent-charge, alleged to haye 
 become payable on 1st April, 1918, in respect of certain 
 lands in the Parish owned by the Respondent and 
 occupied by his tenants. The sum sought to be 
 recovered has been paid since the proceedings were 
 commenced, under circumstances to be hereafter 
 mentioned, and the only matter with which I have 
 to deal is the costs, for which both parties apply. 
 
 The application was issued on 19th July, and on 
 1st August Notice of Opposition was given by the 
 Respondent. He does not dispute his ownership of 
 the lands, but by his Notice puts in issue the name 
 of the occupier (a matter of no materiality in this case), 
 states that tithe has been collected by or on behalf 
 of the Applicant from the occupier, and (para. 3) raises 
 another point, to which I will refer later. Notwith- 
 standing the Notice of Opposition, a cheque for the 
 sum sought to be recovered was posted by the Respon- 
 dent on or about 1st August. The cheque was not 
 sent to the Applicant's agents, who had twice applied 
 for the Tithe without obtaining any reply to their 
 applications, but to the Rector personally. It was 
 delivered at his house at earliest on 2nd August, more 
 probably on the 3rd, but the precise date, as will here- 
 after appear, is in my view not material. At the hear- 
 ing of the application, the Respondent said his point 
 was that the Tithe claimed was not payable until 
 August, when he paid it ; and although the wording 
 of para. 3 of the Notice of Opposition is far from clear, 
 I thought it better to deal with the case on the footing 
 
 18 
 
that the proper date of payment was put in issue, 
 and as regards such date not to rely on the knowledge 
 I, in fact, happen personally to possess, but to have 
 formal evidence before the Court as to the dates in 
 each year on which, in this particular Hampshire 
 parish, tithe is payable under the provisions of the 
 Tithe Acts. The Applicant's solicitor was not prepared 
 to adduce this evidence, and I adjourned the hearing 
 until the next sitting of the Court, reserving all ques- 
 tions as to costs. 
 
 A sealed copy of the Instrument of Tithe Appor- 
 tionment in respect of the Parish of Wonston has now 
 been produced, and it shows that the Tithe Rent-charge 
 becomes payable on 1st April and 1st October in each 
 year, as contended for the Applicant, and as I think 
 is the case in all Hampshire parishes. 
 
 The AppUcant's case having been closed, the 
 Respondent said he did not desire to give evidence, 
 and no evidence was given by him or on his behalf ; 
 but in addressing me he stated that the Tithe Rent- 
 charge has in practice been paid by him and his prede- 
 cessors in title, not in April, but in August, after 
 collection at Midsummer of the Lady Day rents, and 
 on this ground he contended that the Application was 
 issued too soon, there being at its date no Tithe recov- 
 erable. If that were so, the resistance he offered to 
 the order sought against him for costs would of course 
 be well-founded. In my opinion, however, the 
 Respondent's statements as to fact, even if they had 
 been given in evidence, would have afforded no answer 
 to the application in point of law. The sum sought 
 to be recovered fell due on 1st April, and being in arrear 
 for more than three months when the application to 
 the Court was issued the Applicant was then entitled 
 to the Order claimed. The Tithe Act, 1891, obliges 
 the Tithe Owner to wait three months for his Tithe 
 
 19 
 
after it falls due, but I am unable to discover any 
 reason why in this case he should have to wait yet 
 another month. The dates at which the Respondent's 
 rents fall due, and the length of time for payment he 
 may allow his tenants afterwards, are irrelevant 
 matters. The Order of the Court is that the Applicant 
 have the costs of the Application (except in so far as 
 they have been increased by the adjournment), to be 
 recovered in manner provided by the Tithe Acts. I 
 have considered whether Respondent should have his 
 costs of the adjournment, but in view of the ambiguous 
 wording of his Notice of Objection and the absence 
 of any substance in the only point he raised there will 
 be no order as regards the costs occasioned by the 
 adjournment. 
 
 Several times in the course of the case the Respon- 
 dent urged that he is not personally liable for the 
 payment of Tithe. It seems hardly necessary for me 
 to point out that no question of personal liability is 
 raised by the Application before me, which is in the 
 ordinary form prescribed by the Rules of Court. 
 Orders for payment of Tithe Rent-charge are enforce- 
 able against the lands out of which the charge issues, 
 by distress when the landowner is in occupation, and 
 by the appointment of a receiver when (as here) the 
 lands are let. 
 
 20 
 
SMITH V. FRENCH AND CURSON. 
 
 Vendor and Purchaser— Adjoining Owners on Building Estate — 
 Sewerage provided by Neighbouring Authority — Public Health 
 Act, 1875 (sec. 22) — Sewers ' rate ' — Covenants running with 
 the Land. 
 
 A., the owner of a building estate in an urban district, agreed 
 with the Corporation of an adjoining Borough, under sec. 22 
 of the Public Health Act, 1875, for reception into the Borough 
 sewers of the sewage from houses intended to be built on the 
 estate, and covenanted for himself and his assigns that the 
 Corporation should be at liberty to levy sewerage rates on 
 such houses and that he or his assigns would pay such rates. 
 The plaintiff, having an interest in the estate, joined in the 
 covenant. A plot on the estate was subsequently sold and 
 conveyed by A to B, a predecessor in title of the first defendant, 
 and B covenanted with A to pay the rates levied by the Cor- 
 poration in respect of the house built on that plot, it being 
 expressly declared that such covenant should bind his assigns 
 and nui with the land. The first defendant took with know- 
 ledge of this covenant, and afterwards let the house on his 
 plot to the second defendant, who undertook to discharge all 
 rates payable in respect of it. The plaintiff having, pursuant 
 to his covenant with the Corporation, paid sums claimed during 
 several half-yeais by the Corporation as sewers rates in respect 
 of the defendant's house, sued both defendants to recover the 
 sums so paid. Hei,d, (1) that the Corporation acquired no 
 rating rights in the strict sense and that therefore there was 
 no breach of the covenant by B with A ; (2) that neither 
 defendant being under any legal obligation to the Corporation 
 a claim on the footing of money paid at his implied request 
 could not be maintained ; (3) that the covenant by B, being a 
 mere covenant to pay money, was collateral only, neither 
 the benefit nor burden of it running with the land, and that 
 his assignees, though named, were not bound by it ; and (4) 
 that there being neither privity of contract nor privity pf 
 estate between the plaintiff and the second defendant (the 
 occupying tenant), the plaintiff could not in any case recover 
 against him. 
 
 The Urban District Council, in consequence of the sewerage 
 arrangement with the Corporation, allowed rebates from the 
 rates levied by them in respect of houses on the estate. ■ Held, 
 
 21 
 
fuither, that the amount of such rebates was not recoverable 
 from either defendant as money received to the use of the 
 plaintiff. Tulk v. Moxhay (2 Phil. 744) distinguished. 
 
 JUDGMENT. 
 
 This action is brought to recover a sum of II. 12s. 
 8^. in respect of the premises, No. 1, Maple Road, 
 Bitterne, owned by the first defendant and occupied 
 by the second, ' for contribution to the expenses of 
 maintaining a sewer ' ; alternatively for money paid 
 by the plaintiff for the use of the defendants ; and in 
 the further alternative for money had and received 
 to the use of the plaintiff. The total is based on a sum 
 of 7s. 8d. in respect of each of the half-years ended 
 April 1 and October 1, 1916, and 8s. 8^. in respect of 
 each of the next two half-years, but plaintiff's counsel 
 in his opening limited the claim to one year. The 
 facts, which were not in dispute, are as follows : — 
 By a purchase deed of February 25, 1898, the Bitterne 
 Grove Estate was conveyed to C. H. Hardiman in fee 
 simple. Hardiman acquired the property on behalf 
 of himself and three other persons, H. I. vSanders, the 
 plaintiff, and E. T. Wise, as a building estate, and held 
 it in trust for the four as tenants in common in equal 
 undivided shares. The estate is situated within the 
 district of the Itchen Urban District Council, but it 
 was found convenient to provide for its sewers to 
 discharge into the sewers of another local authority, 
 viz., the Corporation of Southampton, and by a deed 
 dated December 6, 1898, executed pursuant to the 
 provisions of sect. 22 of the Pubhc Health Act, 1875, 
 the Corporation granted to Hardiman, Sanders, the 
 plaintiff and Wise the right to cause a sewer from the 
 estate to communicate with a sewer of the Corporation, 
 and the four grantees for themselves and their respective 
 assigns covenanted with the Corporation that they or 
 
 22 
 
their assigns would pay to the Corporation a sewage 
 rate equivalent to the sewage rate of the Borough of 
 Southampton, to be levied on the houses about to be 
 built on their estate at such times as the rates were 
 levied by the Corporation in the Borough. By a deed 
 dated December 7, 1900, the premises in question 
 {inter alia) were conveyed in fee simple by Hardiman 
 (expressed to act on behalf of himself and the other 
 three persons named above) to W. Harvey, who 
 thereby covenanted with Hardiman that he or his 
 assigns would on demand thereafter pay to the Corpora- 
 tion every sewage rate levied by the Corporation in 
 respect of the said premises under the deed of December, 
 1898, and it was provided that such covenant should be 
 deemed to run with the land and premises conveyed, 
 so as at all times to bind the same and the several 
 owners, lessees and occupiers thereof, and so that the 
 personal Uability of Harvey should continue so long 
 only as he should be entitled to, or in possession of, 
 the premises. By a partition deed dated March 16, 
 1901, the then unsold portions of the estate were 
 conveyed in fee simple by Hardiman, as to part to 
 Sanders, and as to the remainder to Hardiman, the 
 plaintiff and Wise in equal undivided shares as tenants 
 in common, subject in each case to, and with the benefit 
 of, the covenants and grant contained in the deed of 
 December, 1898, so far as concerned the hereditaments 
 respectively conveyed, and the grantees mutually 
 covenanted that they and their assigns would perform 
 the said covenants so far as concerned the hereditaments 
 conveyed to them. By a purchase deed dated Septem- 
 ber 29, 1902, the premises in question {inter alia) were 
 conveyed in fee simple to the defendant French by 
 mortgagees of Harvey (who afterwards became bank- 
 rupt), subject to the covenants on Harvey's part 
 contained in the deed of 1900. By two purchase deeds, 
 
 23 
 
each dated April 29, 1914, the undivided one-third 
 shares of Hardiman and Wise respectively in the here- 
 ditaments conveyed to them by the partition deed of 
 1901 (except such parts thereof as had in the meantime 
 been sold off) were {inter alia) conveyed by the respec- 
 tive executors of Hardiman and Wise to the plaintiff 
 in fee simple, subject to, and with the benefit of, the 
 covenants and grant contained in the deed of December, 
 1898, so far as concerned the hereditaments conveyed, 
 the plaintiff covenanting that he and his assigns would 
 perform the said covenants, so far as concerned those 
 hereditaments. In October, 1915, the premises in 
 question were let by the defendant French to the defen- 
 dant Curson, who from that date until the present time 
 has been in possession as tenant to French. The terms 
 of the tenancy were not given in evidence, but it was 
 agreed by counsel that Curson undertook to pay all 
 rates payable in respect of the premises. Since the 
 deed of December, 1898, the Corporation has claimed 
 thereunder and been paid, each half-year, sums by 
 way of sewage rate in respect of the houses for the 
 time being built on the estate, according to their 
 respective rateable values appearing in the valuation 
 lists settled by the competent rating authority. In 
 collecting this money the Corporation has dealt only 
 with the covenantors in the deed of December, 1898, 
 or their legal personal representatives, but appears to 
 have recognised the partition deed of 1901, making 
 separate claims against the respective grantees under 
 that deed. Be this as it may, as regards the half-years 
 with which this action is concerned, the Corporation 
 claimed from the plaintiff and the executors of Hardi- 
 man and Wise the ' rate' payable on all the houses in 
 Maple Road, where the house in question is situated, 
 and pursuant to his covenant in the deed of December, 
 1898, and in conformity with the terms of his convey- 
 
 24 
 
ances of 1914, plaintiff discharged the claim. The 
 sewage of the estate being received and disposed of 
 by an alien sanitary authority, the Itchen Urban 
 District Council has been in the habit of deducting, 
 in the case of premises on the estate, some proportion 
 of the rates levied in the Itchen district, as representing 
 sewerage expense. Apparently this is done as an act of 
 grace, for it was not shown that any division of the 
 Urban District for rating purposes has been made 
 under the powers of sec. 21 1 (4) of the Public Health 
 Act. No figures were given showing the amount of 
 the concession. By a letter of May 6, 1919, the plain- 
 tiff's solicitors applied to the defendant French for 
 the sum now claimed, and he by his reply of May 9 
 referred them to his tenant, the defendant Curson. 
 Application for pa3anent had previously been made 
 by the plaintiff's collector to Curson, who refused to 
 pay. This collector was (with the consent of his 
 Council) the rate collector of Itchen Urban District 
 Council, and the form of application used by him was 
 put in evidence. Although he purports to be collecting 
 on behalf of the Corporation, he never was in fact their 
 agent, but was employed by the plaintiff alone to 
 collect from the various house-owners moneys paid by 
 the plaintiff to the Corporation. So much for the facts. 
 Mr. Trapnell, for the plaintiff, put forward four 
 alternative grounds of claim, viz. : (1) Money due 
 under a covenant running with the land ; (2) Money 
 due under a covenant performed by plaintiff of which 
 defendants had notice, and of the performance whereof 
 they have had the benefit ; (3) Money paid by the 
 plaintiff to the use of the defendants ; (4) Money 
 received by the defendants to the use of the plaintiff. 
 Before dealing with these points in detail, it is, I think, 
 convenient to consider the first point raised by Mr. 
 Done for the defendants. He submitted that, assuming 
 
 25 
 
the covenant in the deed of 1900 to be effective to bind 
 the defendants, or either of them, at the suit of the 
 plaintiff, the covenant is to pay to the Corporation 
 the sewage rates levied by them, and he contended that 
 conditions precedent to any liability arising are the 
 levy of a rate by the Corporation and a demand of 
 payment by them from the defendants, neither of 
 which things has (he says) happened. The covenant 
 is not a covenant for indemnity, and this objection 
 appears to me to be one of weight. Although, for 
 reasons to be hereafter stated, I do not think the 
 Corporation could have enforced any payment against 
 either of the defendants or the premises, it may 
 conceivably be that if they had applied to the defen- 
 dants for the sum payable to them in respect of the 
 particular premises (the course which the deed of 
 December, 1898, seems to contemplate), and on their 
 refusal to pay had obtained payment from the plaintiff, 
 he could have succes.sfully contended that the Corpora- 
 tion had ' levied a rate ' within the meaning of the deed 
 of 1900, and have recovered from the defendant French 
 by way of damages for breach of the covenant in that 
 deed. But it is not necessary for me to, nor do I, 
 express an opinion on that point, for the Corporation 
 did not adopt any such procedure, and the only demand 
 in this connection ever made on either defendant, 
 whether in the action or antecedently, is a demand 
 by the plaintiff for money paid by him to the Corpora- 
 tion : nor is there any claim in the action for damages. 
 It is sufficient to say that there has in the circumstances 
 been no failure to pay the Corporation any rate levied 
 by them, and so no breach of the obligation expressed 
 in the deed of 1900. If that view is right, it is an 
 answer to the action, a breach of the obUgation just 
 referred to being at the root of the cause of action, in 
 whatever shape it is put. But though I regard this 
 
 26 
 
point as a formidable one I am not disposed to rest 
 my judgment upon it ; and in any case as the points 
 put for the plaintiff were fully argued and the matter 
 will, I gather, probably go further, whatever my 
 decision may be, I think I ought to express my views 
 with regard to those points. 
 
 In connection with Point 1 it is necessary in the 
 first place to consider the position of the Southampton 
 Corporation. Notwithstanding the wording of the 
 covenant in the deed of December, 1898, it does not 
 seem to me that anything in the nature of rating rights 
 was created by it ; and general as is the language of 
 sect. 22 of the Public Health Act I do not think a 
 right to make an assessment and levy a rate, in the 
 proper sense of the words, could by private contract 
 be given to a local authority in respect of land outside 
 its district. The right to be paid sums of money 
 varying according to rateable values fixed from time 
 to time by another rating authority is not the same 
 thing as a right to levy rates. Nor does the deed 
 purport to create any grant or charge in favour of the 
 Corporation. In my opinion the Corporation acquired 
 no rights in the land itself, but obtained merely a 
 personal obligation to make a money payment, during 
 (it would seem) such period as the Corporation sewer 
 shallbe adequate to deal with the sewage of the estate, 
 and the owners shall choose to make use of it : the 
 Corporation did not undertake to provide adequate, 
 or any, sewerage facilities in perpetuity. Nor is it 
 suggested that any question of a covenant running 
 with land could arise under the deed of December, 1898. 
 Mr. Trapnell very properly admitted that no action 
 would lie at the suit of the Corporation against assigns 
 of the original covenantors, but he contended that the 
 burden of Harvey's covenant in the deed of 1900 does 
 run with the land conveyed to him by that deed, and 
 
 27 
 
that the benefit of it runs with the land of his coven- 
 antee. The question whether — in the absence of 
 anything in the nature of a grant or charge — the 
 burden of a covenant ever runs with land at law, except 
 as between landlord and tenant, has been much 
 canvassed, and after a good deal of divergence in 
 judicial views I think the better opinion must now be 
 taken to be in the negative : see, in particular, the 
 observations of the Lords Justices in Austerberry v. 
 Corporation of Oldham (29 CD. 750). An instance of 
 the failure of a somewhat similar attempt to annex 
 to land a covenant to pay money is to be found in 
 the case of Cook v. Earl of Arundel [Hardr. 87). The 
 covenant in the present case is a covenant by the 
 purchaser of part of an estate with his vendor to pay 
 money to a third party, and the covenant is expressed 
 to bind assigns and run with the land. But it does 
 not touch or concern land, nor is it a covenant (though 
 labelled ' rates ' ) for anything to be done upon any 
 particular land. In my opinion, therefore, it does 
 not come within either the first or second Resolution 
 in Spencer's Case, but is merely collateral and does 
 not run with the land of the covenantor, nor bind his 
 assigns, though named. The fact that the right of 
 the Corporation to receive the ' rate ' may come to an 
 end, to my mind, tends to confirm this view. 
 
 Supposing, however, the burden of the covenant 
 runs with the land conveyed to Harvey, is plaintiff 
 entitled to the benefit of it ? The covenant was with 
 Hardiman, in whom the legal estate in the Bitterne 
 Grove property was vested when the land in question, 
 part of it, was conveyed to Harvey. The plaintiff, 
 though a party to the deed, was not a covenantee,' 
 but assuming it to relate to land within the meaning 
 of sect. 58 of the Conveyancing Act, 1881 (as I think 
 it does), the covenant is deemed to be made with the 
 
 28 
 
covenantee and his assigns. The land remaining in 
 Hardiman after the sale to Harvey has been conveyed 
 to various persons, part only of it being vested in the 
 plaintiff. Of that part he is an assignee of Hardiman. 
 Is he, as assignee of part of the land, entitled to enforce 
 Harvey's covenant against whatever persons are liable 
 to perform it ? If he is, it can hardly be merely by 
 virtue of him being an assignee of part of the land, 
 otherwise every person taking a conveyance froni 
 Hardiman would have the like right, though, unless 
 he happened to enter into covenants similar to those 
 by Harvey, he would be -under no liability in respect 
 of the ' rates ' payable to the Corporation, nor have any 
 interest in Harvey's covenant being performed. I 
 cannot think the benefit of the covenant runs, or does 
 not run, with the lands subsequently conveyed by 
 Hardiman, according as particular covenants were, 
 or were not, taken in the respective conveyances. It 
 either ran with the land once and for all, at the time 
 it was entered into, or it did not. Harvey's covenant, 
 it is to be observed, was not to do anything to or on 
 land retained by the covenantee, and I do not regard 
 it as one for the benefit of the land, but as merely in 
 relief of a personal obligation resting on the covenantee 
 and other persons. The test as to whether the benefit 
 runs with the land was said by Cozens Hardy, M.R., 
 in Foster v. Elvet Colliery Co. (1908, 1 K.B. 629), to be 
 whether the existence of the covenant necessarily 
 affects the value of the land. Applying that, the 
 owner here would get no more for his land by reason 
 of the covenant ; for (if the view I have expressed is 
 right) the Corporation could not enforce payment 
 against the land ; nor, having made the sewer grant 
 in consideration only of the covenants in the deed of 
 December, 1898, could they cut off the sewer merely 
 because of non-performance of the covenant in the 
 
 29 
 
deed of 1900, to which they were strangers. I think 
 the trtie view is that, being a mere collateral covenant 
 to pay money, the benefit does not run with the 
 remaining land of the covenantee, any more than the 
 burden runs with the land of the covenantor. On this 
 point the reasoning of lyindley, ly.J., in Austerberry' s 
 Case {supra, at pp. 780-781) seems to me cogent. 
 
 Point 2 was not seriously pressed by Mr. Trapnell, 
 nor does it appeal to me to disclose a cause of action. 
 Whatever foundation there may be for it must rest 
 on the equitable doctrine of Tulk v. Moxhay (2 Phil. 744) 
 and that line of cases, whereby effect is given to certain 
 covenants not actionable at law. But that doctrine 
 is limited to covenants to use, or abstain from using, 
 land in a particular way — negative or restrictive 
 covenants capable of being enforced by injunction— 
 and does not extend to an obligation to expend money : 
 see Haywood v. Brunswick Soc. (8 Q.B.D. 403) ; 
 L.S.W. Rly. Co. V. Gomm (20 CD. 562) ; Austerberry' s 
 Case {supra). 
 
 Point 3 is based on money paid at the defendant's 
 request. Express request clearly there was none. 
 Plaintiff paid the Corporation because he was bound 
 to do so by his covenant in the deed of December, 1898. 
 Any request by either defendant is an implied one, 
 arising on the principle that plaintiff, being compellable 
 by law so to do, has paid money which defendant is 
 ultimately liable to pay (see Pownal v. F errand, 6 B & 
 C. 439). But nothing was owing by either defendant 
 to the Corporation, and the foundation of this principle 
 fails. It must be borne in mind, moreover, that the 
 conveyance to French of 1902 contains no covenant 
 by him to pay the ' rate ' : he takes, it is true, ' subject 
 to ' the covenants in the conveyance of 1900 to his 
 predecessor in title, but those words do not amount to 
 
 30 
 
a covenant: Wolveridge v. Steward (3 I,. J. Ex. 360). 
 If the defendant is liable at all, it is not because 
 plaintiff has discharged a debt of his, but because he 
 is bound by a covenant running with his land. This 
 in my view is the real point in the case, and I have 
 dealt with it. 
 
 There is no substance in Point 4. It is based on 
 the reductions or abatements conceded to the defen- 
 dants by the Itchen Urban District Council, consequent 
 upon the arrangement made in 1898 with the Corpora- 
 tion ; but it seems to me fanciful to describe this 
 benefit as money received. The defendants received 
 no money — certainly none to the use of the plaintiff. 
 
 The case, which was extremely well argued, is, 
 as against the defendant French, not an easy one, but 
 for the foregoing reasons the conclusion to which I 
 have come is that the object undoubtedly aimed at 
 by the owners of this estate, in taking covenants from 
 their purchasers such as those contained in the deed 
 of 1900, was not achieved by the particular convey- 
 ancing method adopted, and that the action is not 
 maintainable. I accordingly dismiss it, and plaintiff 
 must pay the costs. I may add that, as far as the 
 defendant Curson is concerned, I feel no difficulty. 
 Whatever might be his position vis a vis his landlord, 
 if Uability were estabhshed against the latter, I see 
 no ground for any claim against him at the suit of the 
 plaintiff. He is not an assignee of the land which 
 passed by the deed of 1900, but a mere tenant of the 
 person in whom the legal estate in that land is now 
 vested. There is neither privity of contract nor privity 
 of estate between him and the plaintiff, and as against 
 him the claim in my opinion wholly fails. 
 
 It was stated at the Bar that this action is in the 
 nature of a test case, as affecting a number of pur- 
 
 31 
 
chasers of different parts of the estate, and both Counsel 
 asked that a certificate should be given for costs on 
 the higher scale, and that leave to appeal should be 
 granted. I think it is a proper case for taxation on 
 Scale C, item 86 being allowed, and I so direct. There 
 will be leave to appeal. 
 
 32 
 
SIDDAlvL V. MANCHESTER DRY 
 DOCKS CO. 
 
 Workmen's Compensation Act, 1906 — Accident ' arising out of and 
 in course of employment ' — Added risk — Return from Work — 
 Selection by Workman of dangerous route. 
 
 Wheie a workman, having left his work and started for home, 
 chose a route, after leaving his employer's premises, which 
 was not authorised by his employers (though commonly used 
 as a short cut by the employees in the works), and which was 
 more darigerous than the regular route, and he was drowned 
 through falling in an adjoining lock, Hei,d that the increased 
 danger involved in taking the short cut was an added risk 
 which the workman had taken on himself, and therefore that 
 the accident did not arise in the course of the employment. 
 Fox V. Rees [1916] (9 B.W.C.C.) distinguished. 
 
 JUDGMENT. 
 
 In this case compensation is sought by the 
 dependents of George Siddall, who was accidentally 
 drowned on October 20, 1916. The applicant alleges 
 that the accident arose out of and in the course of the 
 deceased's employment by the respondents, and the 
 only question in dispute between the parties is whether 
 this was so or not. Subject to the question of liability, 
 compensation has been agreed at 176/. 16s. The facts, 
 as I find them, are these : — On the date in question 
 the deceased, having finished his day's work, signed off 
 in the respondents' book and started for his home, 
 which is in Salford. There are two routes by which 
 it was possible for deceased, in common with re- 
 spondents' other workpeople, to 6nter and leave their 
 premises : [a) by way of a road known as Trafford 
 Wharf Road and thence into a highway ; and (6) by 
 crossing certain waterways on premises of the Manches- 
 ter Ship Canal Co. and so into a highway. By neither 
 route could the deceased pass from the respondents' 
 premises directly on to a highway. Trafford Wharf 
 
 33 
 
Road is a private road over which the respondents have 
 a contractual right of way for their workpeople. Access 
 to the alternative route over the locks is obtained, 
 under an agreement with the Ship Canal Co. dated 
 31 December, 1896, through a gate separating the 
 premises of the respondents from the premises of the 
 company. The gate gives on to a footbridge over the 
 canal, which at its further end communicates with a 
 retaining wall between the canal and one of its locks, 
 at a point about midway between two sets of lock 
 gates. El and B2. Along the side of this retaining 
 wall nearest to the footbridge is a double row of 
 railings, which forms a protected gangway, reaching 
 from the footbridge to a point opposite the first lock 
 gate, El, and continuing some distance further in the 
 same direction. Where the gangway passes this lock 
 gate, there is a gap in the railing on the side nearest 
 to the gate to enable persons to pass from the 
 gangway across the retaining wall to this gate, and so 
 over the lock. The railings above mentioned are so 
 placed as to prevent anyone passing from the footbridge 
 to the second lock gate unless he gets under or over 
 the raiUng, and at the end of the footbridge, where 
 the railed gangway commences, there is a notice board 
 indicating that passage is forbidden except between 
 the lines of railings. The railings and the notice board 
 were erected by the Canal Company about the same 
 time, and both previously to the date of the accident. 
 For a considerable period before the accident the 
 respondents' workpeople used, at their pleasure, either 
 the Trafford Wharf Road route or the route by way of 
 the locks. This was a matter of notoriety, and I think, 
 in the circumstances, the right to pass in or out by 
 either route, though not to use any particular lock gate 
 for the purpose if the canal routes were chosen, must be 
 taken to be an implied term of the contract of em- 
 
 34 
 
ployment, so far as concerns Salford men. By far the 
 greater number of the respondents' workpeople were 
 in the habit of using the canal route. Until the 
 railings and notice board were erected, those of them 
 who chose that route went, as best suited their con- 
 venience, either by way of the first or second lock gate. 
 After the erection of the railings and notice board, there 
 was little or no change in the practice in this respect. 
 Those men to whom the way over the second gate was 
 more convenient got under or over the railings, and 
 still used it. Something like one hundred of them 
 did so every day, Siddall amongst the number. The 
 respondents knew that some of their men were dis- 
 regarding the Canal Company's notice. The canal 
 route was a substantially nearer way home for Siddall 
 than the alternative route by Trafford Wharf Road, 
 whetheir he used gate El or gate E2. It was not 
 suggested that any risk was involved in the use of 
 the Trafford Wharf Road route beyond the ordinary 
 everyday risks which workpeople in general incur in 
 going to and from their work. In resorting to the 
 canal route, however, I find that special risk was 
 incurred, comparatively slight in the c^se of lock gate 
 HI being resorted to, but a considerably greater, and a 
 substantial, risk if gate E2 were used. In my view the 
 erection of the railings and notice board by the Canal 
 Company was an exercise of the rights reserved to 
 them by the deed of 1896, and amounted to a 'regula- 
 tion ' by them, and thenceforward the passing of 
 respondents' workpeople from the footbridge over lock 
 gate E2 was, as between them and the Canal Company, 
 a trespass. Further I find, if and so far as it is a 
 question of fact, that after the erection of the railings 
 and notice board the use of bridge E2 by Siddall was 
 not, as between him and the respondents, authorised 
 by them. The deceased man, on the evening in 
 
 35 
 
question, following his usual practice, attempted to 
 cross the lock by way of gate B2, and whilst passing 
 along the unfenced portion of the retaining wall, 
 between the end of the footbridge and the gate E2, 
 he fell into the lock and was drowned. This was 70 
 or 80 yards from the gate where he left respondents' 
 premises. These being the facts, Mr. Adshead Elliott, 
 for the respondents, submitted that the point at issue 
 is concluded in their favour by Davies v. Rhymney Iron 
 Co. [1900] (16 T.L.R. 329) and Walters v. Stavely Coal 
 Co. [1910] (4 B.W.C.C. 303). It was argued before 
 me that these two cases established the proposition 
 that when a workman has left his work and started 
 for home, and a fortiori when he has passed off the 
 employers' premises, the relationship of master and ser- 
 vant has for the time being ceased, and that accidents 
 during the course of his journey home do not arise in 
 the course of his employment. Mr. Bennett for the 
 appUcant, however, called my attention to two later 
 cases, which he contended show that the Court of 
 Appeal has placed a construction on the Rhymney 
 and Stavely cases which precludes me from taking the 
 view which, unassisted by other authorities, I should 
 have felt bound to take of the effect of these cases. 
 He relied on Fox v. Rees and Kirby & Longhurst v. 
 Stewart, both of which came before the Court of 
 Appeal in July, 1916, and are reported in volume 9 
 of ' Butterworths Compensation Cases.' 
 
 In Fox V. Rees there were three routes by which, 
 speaking physically, access could be had to the em- 
 ployers' works : — (a) by a long and laborious walk 
 {b) by trespassing on land in defiance of the owners' 
 prohibitory notice (c) by walking along a private 
 railway leading to the works. The third route was 
 habitually used by the vast majority of the workmen. 
 One of them, proceeding by it to the works, was 
 
 36 
 
knocked down by a train and injured, and it was held 
 that the accident arose in the course of his employment. 
 In his judgment Pickford, ly. J., laid stress on the fact 
 that the third route was a regular and recognised way, 
 which the employers allowed to be used, and which 
 they might almost be said to have arranged for their 
 workmen to use, and he expressed a doubt whether the 
 second route, involving as it did a trespass, could 
 properly be described as an alternative way. His 
 lyordship, after referring to Gane v. Norton Hill Co. 
 [1909] (2K.B. 539), adopted, with approval, the view 
 of Kennedy, Iv.J., in that case: — that if there are two 
 or more recognised ways, all proper ways and all 
 permitted by the employers, an accident is not taken 
 out of the category of those happening in the course 
 of the employment by a workman selecting one more 
 dangerous than the others. If I had to consider the 
 case of a workman using the canal route by the protected 
 gangway and lock gate El , I confess I should not have 
 felt it altogether easy to reconcile some of the observa- 
 tions in Fox v. Rees with the decision of the House of 
 Lords in the Stavely case, but I think the present case 
 stands clear of Fox v. Rees, if I am right in the view 
 I take that the route in fact followed by the deceased 
 was not, at the date of the accident, one which he was 
 entitled to say was sanctioned by the respondents. 
 In Longhurst v. Stewart some of the material facts were 
 very like those of the present case. The employers 
 had work to do in a dock, the property of third parties, 
 and in that work employed a workman who fell into the 
 dock and was drowned whilst attempting, on leaving 
 his work, to reach the dock gates, which opened on to 
 a highway. The Court of Appeal held that the accident 
 arose in the course of the employment. The grounds 
 of the decision are thus expressed by the Master of the 
 Rolls : ' I think two propositions are established by 
 
 37 
 
the authorities — {a) that employment of a workman 
 does not begin until he has left a public road and does 
 not end until he has reached a public road. ... In 
 my opinion the employment began when he entered the 
 lock gates and continued until he left the gates and 
 reached a public road. The accident, therefore, arose 
 in the course of his employment, and it cannot be 
 doubted that it arose out of his employment.' The 
 proposition there laid down causes me some difficulty, 
 in view of the fact that in the Stavely case the steps 
 where the workman fell were on the employer's own 
 premises ; that is to say, he had left the highway. Yet 
 the House of I^ords held that the accident which befell 
 him whilst following, by his own choice, the authorised 
 short cut to his work did not arise in the course of 
 his employment. There, as here, the workman had a 
 choice of exits, the one safe and the other relatively 
 dangerous. In this state of the authorities, it seems 
 to me that a somewhat narrow path is left for me to 
 tread. I base my decision on the view that the par- 
 ticular route selected by the deceased was not one 
 authorised by his employers, and was, vis a vis the 
 owners of the land, a trespass. In my opinion, the 
 increased danger involved in that route is a risk which 
 he took upon himself, and therefore the accident 
 which he met with did not arise in the course of his 
 employment. My award must be for the respondents, 
 with costs on Scale B. 
 
 38 
 
STEVENS V. IvONDON AND SOUTH WESTERN 
 RAILWAY CO. 
 
 Workmen's Compensation Act, 1906 — Accident arising "out of" 
 Employment — Added Risk — Departing from Sphere of Employ- 
 ment. 
 
 Where an engine driver, for the purpose of ' trimming ' a 
 damaged shovel used by him in the course of his work, got off 
 his engine and proceeded to trim it on one of the rails of an 
 adjoining siding, and while doing so was knocked down by a 
 passing engine and kiUed, Held, on an application for com- 
 pensation by dependents under the Workmen's Compensation 
 Act, that in taking the course he did the driver had gone outside 
 his emplojrment, or, alternatively, had voluntarily taken on 
 himself, in doing his work, an added risk mateiial in extent, 
 thereby bringing about the accident which resulted in his death ; 
 and therefore that the employers were not liable under the 
 Act. Lancashire and Yorkshire Railway v. Highley (L.R. 1917, 
 A.C. 352) applied. 
 
 JUDGMENT. 
 
 In this case the applicant, Edith vStevens, claims 
 compensation for the loss of her husband, Harry 
 Stevens, who died as the result of an accident which 
 occurred on February 6, 1917. If the applicant is 
 entitled to succeed, it is agreed that the award must 
 be for 300/. 
 
 On the day when the accident happened, the 
 deceased, an engine driver in the employ of the respon- 
 dents, was in charge of one of their engines, engaged 
 in shunting operations at Basingstoke station. The 
 engine- shovel, used for coaling the engine, had in 
 course of use become torn and turned up or ragged at 
 the edges, and required trimming. Whilst the engine 
 was for a short time standing on a siding near Basing- 
 stoke station, waiting to be called on for shunting 
 duty, the deceased and his fireman, one Banks, got off 
 the engine, and with a hammer and chisel forming part 
 of the equipment of the engine proceeded to trim the 
 
 39 
 
edges of the shovel, using as an ' anvil ' one of the rails 
 of a siding adjoining the siding on which their engine 
 was standing. The rail they so used is one over which 
 engines and vehicles frequently pass, and may at 
 almost any hour of the day be expected to pass, and 
 whilst the two men were engaged in trimming the 
 shovel an engine came up, without them seeing or 
 hearing it, and knocked them both down, the driver 
 receiving injuries from which shortly afterwards he 
 died. So far it is common ground. 
 
 I find the following further facts : There is near 
 Basingstoke station a shed or depot of the respondents 
 where repairs to [inter alia) engine-shovels can be 
 carried out, and where all repairs of any moment 
 are carried out; but when all that is required is ' trim.- 
 ming ' it has for a considerable time been the usual, if 
 not invariable, practice on this railway for the driver 
 and fireman to do the trimming themselves. This 
 practice was well known to and acquiesced in by the 
 responsible officers of the respondent company, and, 
 so far as it is a question or inference of fact, I find 
 that the trimming of the engine-shovel was within the 
 course of the deceased man's employment. 
 
 . It is obvious that the trimming is best done with 
 a firm ' anvil ' to work on. The bed or foot-plate of 
 the engine and (or) tender is sometimes used for the 
 purpose, but a fixed rail is more rigid, and when an 
 engine-shovel needs trimming it is a very common 
 thing for driver and fireman, when they have a little 
 time to spare, to get off the engine and trim the shovel 
 on a rail near by ; in other words, to do what the 
 deceased did. I think the trimming was more often 
 done in this way than any other, but the applicant 
 failed — though narrowly — ^to satisfy me that the use 
 of a rail for this purpose was known to any responsible 
 officer of the respondent company, or was so notorious 
 
 40 
 
on the line that I ought to draw the inference that it 
 must have been known and acquiesced in, and thus 
 (to use an expression of lyord Sumner's in Lancashire 
 and Yorkshire Railway Co. v. Highley (ly.R. [1917] 
 A.C. at p. 373), brought 'within the ambit of the 
 employment,' so as to bring into play the principle on 
 which alone the decision in Gane's Case in the Court of 
 Appeal must now be taken to stand {Gane v. Norton 
 Hill Co. [1917] 2 K.B. 539). 
 
 There was evidence that on this particular occasion 
 the shovel could not have been readily or conveniently 
 trimmed on the engine or tender, but there was no 
 urgency about the trimming, and nothing to necessitate 
 it being done at a dangerous time or place. Deceased 
 and his fireman, in doing the trimming at the spot 
 they selected, took a course which was plainly danger- 
 ous. These appear to me to be the material facts. 
 
 At the close of the applicant's case Mr. Shake- 
 speare, for the respondents, submitted that no case 
 calling for an answer had been made out. I, however, 
 decided to hear the evidence for respondents, reserving 
 the point raised, and their evidence was called ac- 
 cordingly. Having found the facts as stated above, 
 how does the matter stand in point of law ? Or 
 perhaps the more strictly correct way of putting it 
 is — ^to what further conclusion of fact ought the facts 
 I have already found to bring me ? It was not and 
 could not be denied that the accident arose ' in the 
 course of ' deceased's employment, but it was con- 
 tended that it did not arise ' out of ' the employment. 
 In a sense, of course, it did, but whether it did so within 
 the meaning of these words as settled by authority is 
 the question I have to determine. Death having 
 resulted, wilful misconduct would not in any case 
 avail the respondents. But, apart from any considera- 
 tion of that kind, their counsel relied upon two rules 
 
 41 
 
contained in a book of rules, which was issued to 
 deceased, as one of the company's workmen. The 
 rules in question are in the following terms : 
 
 Rule 24B. Reckless exposure of himself or others to danger 
 on the part of any servant of the Company will be treated as' an 
 offence against the Company's regulations and punished accord- 
 ingly. 
 
 Rule 26. The Company's servants must not walk upon the 
 line except when it is necessary for them to do so in the execution 
 of their duty. 
 
 It was argued for the respondents that, on the 
 evidence fof the applicant, there was a breach of one 
 or both of these rules, and that on that ground alone 
 the deceased must be taken to have gone on to ' forbid- 
 den territory,' and so departed from the sphere of his 
 employment. I incline, however, to the view that 
 these rules are in too wide and general terms to be 
 relied on to that extent, and I do not think the case can 
 be disposed of on that footing. It was further argued 
 for the respondents that, assuming the trimming of the 
 shovel is to be regarded as within the scope of the 
 deceased's employment, the cause of the accident was 
 the use of the running rail as an anvil, and that such 
 use of the rail was an unauthorised and dangerous 
 thing, undertaken by the deceased voluntarily and 
 without necessity ; and this seems to bring me face to 
 face with the familiar problem : — Was the man doing 
 work he was employed to do, though in a dangerous and 
 improper way (as was contended by Mr. Mortimer for 
 the applicant), or was he departing entirely from the 
 course or sphere of his employment, so as to lose the 
 protection of the Workmen's Compensation Act ? 
 The dividing line is a narrow one — how narrow is, as 
 I,ord Finlay,L.C., points out in the latest case {Highley's 
 Case [1917] A.C. at p. 359) sufficiently shown by the 
 differing opinions expressed in the House of I^ords in 
 Herbert v. Samuel Fox & Co. [1916] A.C. 405). On one 
 
 42 
 
side of the line there are such cases as Harding v. 
 Brnddu Colliery Co. (4 B.W.W.C. 269) and Blair v. 
 Chilton (8 B.W.W.C. 324) ; on the other side are 
 Barnes v. Nunnery Colliery Co. ([1912] A.C. 44), 
 Plumb V. Cobden Flour Mills Co. ([1914] A.C. 62), 
 Herbert v. Samuel Fox & Co. ([1916] A.C. 405), and the 
 very recent case oi Lancashire and Yorkshire Railway v. 
 Highley ([1917] A.C. 352), all these cases, except 
 Harding's Case, having gone to the House of Lords. 
 The present case seems to me to be very near indeed 
 to the Une, and after careful consideration of the authori- 
 ties I cannot pretend to feel sure my view is correct, 
 but the conclusion to which I have come is that to get 
 off his engine and trim the shovel on the running rail 
 was not a thing the deceased was employed to do, and 
 that in taking that course he went outside his employ- 
 ment, or, if that is not the true view, voluntarily took 
 on himself, in doing his work, an added risk material in 
 extent, and thereby brought about the accident which 
 resulted in his death. 
 
 It follows that my award is for the respondents, 
 and costs will follow the event. 
 
 Note. — ^An appeal to C.A. was dismissed on 23 April, 1918 
 (118I,.T. 792). 
 
 43 
 
lyAWBS V. MOWI.EM & CO. 
 
 Workmen's Compensation Act, 1906 — Scale of Compensation — 
 Claim of Dependents — Wife's Separation Order — Basis of 
 A ssessment. 
 
 Where a workman living apart from his wife, who had 
 obtained a separation order from justices with an allowance 
 of 14s. a week, she retaining the custody of the children of the 
 marriage, was fatally injured in the course of his employment, 
 in which he was then receiving a considerably higher rate of 
 wages than at the date of the order, Held that the sum 
 payable under the separation order was not necessarily the 
 measure of the benefit which would have been derived by the 
 dependents from the deceased workman, and that, having 
 regard to all the circumstances, they were entitled to an award 
 of the maximum amount (300/.) payable under the Statute 
 as compensation. 
 
 JUDGMENT. 
 
 The respondents in this case admit HabiUty, and 
 have brought 125/ into Court. The only question at 
 issue is as to the adequacy of this sum. The deceased 
 was a married man, 48 j'-ears of age, his widow, the 
 applicant, being 40. There are three children of the 
 marriage — a girl, aged 14, and two boys, aged res- 
 pectively 12 and 6. The husband and wife were living 
 apart, she having obtained a separation order from 
 justices on October 10, 1916, under which 15s. a week 
 was payable to her by the deceased, she having the 
 custody of the children. The deceased, on an allegation 
 of reduction from 34s. to 28s. 4d. a week in his earnings, 
 obtained a variation of the justices' order on April 24, 
 1917, the weekly payment being reduced from 15s. to 
 14s. For some five or six months immediately before 
 his fatal accident, which occurred on March 10, 1918, 
 deceased was in the respondents' employ at an aero- 
 drome near Andover, and his average weekly earnings 
 during that period were 31. 15s. 6d. The .widow 
 (applicant) is employed in munition works, and her 
 
 44 
 
earnings during the last nine months have averaged 
 11. 5s. 2d. a week. For short periods at a time the 
 daughter has been in service as a day-girl, earning 
 about 5s. a week, but latterly, to enable the mother 
 to go to her work, it has been necessary for the 
 daughter to .stay at home and look after the house 
 and the other children, the younger boy being deli- 
 cate and requiring a good deal of attention. The 
 girl entirely ceased to go out about the time of her 
 father's death. It was contended for the applicant 
 that in the case of the youngest child, at all events, 
 there was a total dependency, and an award was sought 
 on that footing, but in the circumstances above stated 
 I am of opinion there was no more than a partial 
 dependency as regards any member of the family. It 
 was stated by counsel for the respondents that they 
 had based the 125^. brought into Court on a payment 
 of 14s. a week for a period of three years, with the 
 addition of a sum of 15/. or 16/., and it was contended 
 on their behalf that the 14s. a week payable under the 
 later order of the justices is the maximum to which 
 I can properly have regard in determining the extent 
 of the compensation to which the dependents are 
 entitled. This view appears to me unsound, and in any 
 case, three years is, I think, too short a period to take 
 as the basis ; neither deceased's earning powers nor his 
 liabiUty could reasonably be expected to come to an 
 end in three years, when the youngest child, who is far 
 from robust, would be only nine years old. The order 
 of the justices was subject to variation with varying 
 circumstances. It had been varied once, and might 
 have been varied again, in either direction. The fact 
 that there was, at the time of the death, a subsisting 
 order for 14s. a week is one of the factors to be con- 
 sidered, but no more. The case is analogous to that of 
 a bastardy order,where, as was held in the Scotch case 
 
 45 
 
oiGourlay v. Murray (1 B.W.CC. 335), what has to be 
 determined is the benefit which would probably have 
 been derived from the putative father, having regard, 
 of course, to the bastardy order, but not treating the 
 sum payable under it as necessarily the measure. 
 There, as here, what one has to do is to take all the 
 circumstances into account — the respective ages and 
 states of health of the parties concerned, their present 
 and probable future earnings, their needs, the cost of 
 maintenance, and so on — and, on consideration of the 
 whole of the matters which appear to me relevant, the 
 conclusion to which I have come is that the amount 
 ' reasonable and proportionate to the injury to the 
 dependents ' of the deceased in this case is not less than 
 the maximum sum recoverable ; and there will, 
 accordingly, be an award in favour of the applicant 
 for 300/. (including the sum paid into Court), with 
 costs on scale B. Items 31 and 70 to be allowed on 
 taxation. Although liability was never in dispute, 
 there was considerable delay in the making of any 
 payment into Court, caused, I was told, by a long 
 correspondence. No payment was made until three 
 months after the accident, and the delay is regrettable, 
 for the widow was compelled, first to borrow money, 
 and eventually to obtain parish relief. At the hearing 
 I directed an interim payment of 25/. to the apphcant 
 out of the money in Court, to meet the immediate 
 necessities of the dependents of deceased. 
 
 46 
 
EASTMANS, LTD., v. DUNNING. 
 
 Workmen's Compensation Act, 1906 ; Schedule I cl. 17 — Total 
 Incapacity — Redemption of Weekly Payments — Exclusion of 
 Allowance under Workmen's Compensation {War Addition) Act, 
 1917. 
 
 An order may be made for redemption of weekly payments 
 agreed to be paid during total incapacity under the Workmen's 
 Compensation Act, 1906, notwithstanding that it extends to part 
 only of the compensation payable. The additional allowance 
 payable under the Workmen's Compensation (War Addition) 
 Act, 1917, remains unaffected by the order. Clawley v. 
 Carlton Main Colliery Co., distinguished. 
 
 JUDGMENT. 
 
 This is an application by employers to redeem, 
 and the facts are not in dispute. The accident 
 happened in March, 1909, and under an agreement 
 dated the 8th April, 1910, duly recorded in this Court, 
 the applicants paid the respondent 15s. a week down to 
 the passing of the Workmen's Compensation (War 
 Addition) Act, 1917, since when the weekly payment 
 has been increased by 3s. 9i., as provided by that Act. 
 It is a case of total incapacity. The respondent's 
 soUcitor expressed a fear that the redemption sought, 
 if ordered, would prejudice the respondent's right 
 to receive the additional 3s. Qd., and for that reason, 
 and no other, he resisted the application. He con- 
 tended that since the redemption order sought 
 extends to part only of the compensation payable 
 there is no power to make it, and in support of that 
 view he rehed on the case of Clawley v. Carlton Main 
 Colliery Co., in the House of I,ords (1918 A.C. 744). 
 In my opinion that case has no application here. 
 It dealt with an application for redemption made 
 before the passing of the Act of 1917, and what 
 it decided was that there can be no redemption of 
 a weekly sum payable under the Act of 1906 where 
 
 47 
 
such sum does not represent the whole compensation 
 the workman is obtaining by virtue of that Act. It 
 is provided by section 1 of the Act of 1917 that whilst 
 the Act continues in force a workman entitled during 
 total incapacity to a weekly payment under the 
 Act of 1906,. (this case) shall be entitled to receive an 
 additional weekly sum, and that ' the additional 
 weekly sum shall, notwithstanding that the HabiHtj^ 
 to make the said weekly payment is redeemed, 
 subsequently to the commencement of this Act, 
 continue to be payable in the same manner as if that 
 UabiHty had not been redeemed.' The ' said weekly 
 payment ' is plainly the payment made under the 
 principal Act, and in my view the right to the war 
 addition is expressly preserved and the fear expressed 
 by the respondent's solicitor is without foundation. 
 The new Act may give rise to difficulty in applications 
 for redemption where the incapacity is partial only, but 
 that is not this case. There will be an order for 
 redemption of the weekly payment of 155. in the 
 terms provided by clause 17 of Sch. 1 to the principal 
 Act. If there should be any difficulty in arriving at 
 the right figure, the matter can be mentioned to me 
 again, and for that purpose liberty to apply will be 
 reserved. 
 
 48 
 
COURTNEY V. OWNERS OF " The Warilda." 
 
 Workmen's Compensation — Husband and Wife living apart — 
 Dependency. 
 
 The question of dependency is one of fact, and does not 
 depend on the mere possession of a legal right. So that where 
 a workman, who was killed by an accident in the course of his 
 employment, had been living apart from his wife for two years, 
 was in weak health, and had not contributed anything to her 
 maintenance, she maintaining herself by war-work, Hei,d 
 that a claim by the widow for compensation as a dependent 
 under the Workmen's Compensation Act could not be sustained, 
 notwithstanding that there was a contingent right of the 
 widow to support when her war-work ceased. 
 
 JUDGMENT. 
 
 In this case the applicant, Mabel Courtney, claims 
 compensation in respect of the death of her husband, 
 who was drowned at sea by the sinking of his ship, as 
 the result of enemy action, on 3rd August, 1918. The 
 only question in dispute is as to her dependency, and 
 the facts are as follows : — 
 
 The appUcant was married to deceased in July 
 1915, she being then about 24 and he a year older. At 
 the time of the marriage deceased was a steward em- 
 ployed on the Warilda, and so continued until Novem- 
 ber, 1916. During this time he gave applicant about 
 30s. a week for housekeeping. They made their home 
 in apartments which the wife had occupied before the 
 marriage. Deceased's duties usually enabled him to be 
 at home alternate days, and he slept there every other 
 night. The wife worked at a sweetmeat manufactory 
 for half a day three days each week and earned 6s. a 
 week. In November, 1916, some difference arose 
 between the husband and wife, in consequence of which 
 deceased left the marital home. They never again 
 lived together. Deceased was at this time in bad 
 health, suffering from consumption, and 2 or 3 months 
 
 49 
 
later he went for a time into a hospital for consump- 
 tives. Whilst there he occasionally met his wife in 
 the street ; at first they just spoke to each other, but 
 later they ceased to do so. So far from making up 
 their differences and coming together again, they were 
 drifting further apart. On one occasion, whilst de- 
 ceased was under treatment at the hospital, he gave 
 his wife a sum of 10s., which he had received for sick 
 pay under the National Insurance Act. This was the 
 only sum he gave her after abandoning co-habitation, 
 and she made no attempt to obtain anything further 
 from him . On his leaving her she obtained employment 
 in some army boot-repairing works at Southampton 
 Docks, earning for some 6 months 15s. a week, then 
 18s. for a week or two, after which she was put on piece- 
 work, at which she earned and is earning about f^ 
 a week on the average. When her earnings were only 
 15s., her father helped her with irregular payments 
 from time to time, averaging some 5s. or 6s. a week. 
 She is a healthy, vigorous woman, and at her husband's 
 death had, and she still has, no difficulty in maintain- 
 ing herself. There are no children of the marriage. 
 These are, I think, the material facts. 
 
 For the applicant it was contended that her 
 employment at the boot works is in the nature of war 
 work of a temporary character, but the question I have 
 to determine is whether, in the words of s. 13 of the 
 Workmen's Compensation Act, she was at the time of 
 her husband's death wholly or in part dependent upon 
 his earnings. This, it is now well settled, is a question 
 of fact. There is no presumption arising from the 
 legal obligation created by the relationship of husband 
 and wife. Several authorities were referred to in 
 argument, but I do not think it necessary, nor indeed 
 useful, to go beyond the case of 'New Monkton Collieries 
 V. Keeling in the House of Lords (191 1, A.C. 648) . The 
 
 50 
 
governing principle I take from the opinion of lyord 
 Atkinson, expressed in these terms (p. 650) : ' It may 
 be that the husband was in law bound to maintain her, 
 but it is by the discharge of this obligation, not by its 
 mere existence in law, that a husband supports and 
 maintains his wife. It cannot in the nature of things 
 be on the mere possession of a legal right, but rather 
 on the effective enforcement of it, in some shape or 
 form, that a wife relies for her support.' Then (p. 653) 
 his lordship points out that, though there is no legal 
 presumption of dependency from the mere legal 
 obligation, the existence of the obligation is not to be 
 ignored, but that its existence and the probabiUty of 
 its discharge, voluntarily or under compulsion, are 
 matters to be taken into account ' in determining the 
 question of fact, whether or not the wife, at the time 
 of her husband's injury, looked to his earnings for her 
 maintenance and support, in whole or in part.' Lord 
 Shaw, concurring, says (p. 657) the statute requires 
 dependency (in addition to relationship) to be estab- 
 lished ' in a reasonable and actual sense.' 
 
 It was urged that in the case before me, looking 
 to the age of the parties and the comparatively short 
 period of separation, and bearing in mind the absence 
 of ill-treatment or misconduct on the part of the hus- 
 band, it might well be that they would come together 
 again. This I think is true, and I incline to the view 
 that in the case of a wife comparatively slight evidence 
 is needed to justify a finding of dependency. The 
 burden of proof is, however, on the applicant, and on 
 full consideration of the circumstances present here, 
 and applying the principles laid down in Reeling's case, 
 I find myself constrained to come to the conclusion 
 that the applicant has not discharged the burden and 
 has failed to estabUsh dependency. The one payment 
 of 10s. made after the separation is too small a matter 
 
 51 
 
for any weight to be attached to it (see Devlin v. Pelaw 
 Main Collieries, 5 B.W.W.C. 349), and, having regard 
 to the physical condition of the parties respectively 
 and the other relevant matters, it seems to me im- 
 possible to say that the applicant's husband was at 
 the time of his death maintaining her wholly or in 
 part, or that there was any reasonable probability of 
 him ever doing so, either voluntarily or under compul- 
 sion ; a remote possibility is not enough. The legal 
 liability no doubt remained, but I think it was a barren 
 tree, offering no prospect of fruit-bearing. 
 
 There will be an award in favour of the respondents, 
 with costs on Scale B. 
 
 52 
 
COI.DMAN V. HIIvTv. 
 
 Bailment — Agistment — Theft of Animals — Effective Cause of Loss — 
 Negligence — Liability of Bailee — Burden of Proof. 
 
 A bailee for leward, though not an insurer, is under an 
 obligation to act as a reasonably prudent man would act with 
 regard to property of his own, and is not exonerated from 
 liability by the mere fact of the chattels entrusted to him 
 being stolen. The onus is on him to show that complete loss 
 arose from some cause for which he is not responsible (e.g., 
 theft, without negUgence). If theft occur, his duty is to give 
 prompt information to the bailor, and if he fails to do so, and 
 the goods are not recovered, he has not discharged the onus 
 and is liable for the loss. 
 
 JUDGMENT. 
 
 On the 19th or 20th April, 1917, it was orally 
 agreed between the parties that the defendant should 
 receive and graze {inter alia) the cows in question for 
 a fixed sum per head per week, and on April 21 the 
 animals were taken to the defendant's farm (Farling- 
 ton Farm, Havant) and left there on the terms agreed. 
 Two or three days after April 21 the plaintiff received 
 from the defendant a document dated April 20, of 
 which the following is a copy : — 
 
 ' I am willing to take your cattle in to graze at four 
 heifers 2s. 6d. each, three cows 3s. each per week, on the 
 understanding they are entirely at your risk, whether 
 any loss or injury occurs through death, being kicked, 
 falhng into ditches, lost, stolen or strayed, or fire, or 
 from any cause whatever, as every precaution is 
 taken against accident. P.S. — No horse is allowed 
 to be taken away without keep of same having been 
 paid.' This document was retained by the plaintiff 
 without demur. Nothing was said about any docu- 
 ment when terms were arranged, and, if and so far as 
 it is a question of fact, I find that the contract had 
 previously been concluded orally, and that the docu- 
 
 53 
 
ment formed no part of it. I am, however, disposed 
 to think that the point is of Uttle, if any, moment. 
 On June 5 the defendant informed the plaintiff that 
 one of plaintiff's cows had calved. Plaintiff said he 
 would fetch the cow and calf away that day, and did 
 so. When he went for this cow, the plaintiff saw the 
 defendant's foreman, Foster, and told him the two 
 cows in question were due to calve in July and he 
 would shortly fetch them also away, bringing with 
 him, when he did so, two others to take their place. 
 Foster should have been able to give useful informa- 
 tion, but the defendant did not call him. On June 
 28 plaintiff went for the two cows. He met the man 
 Foster, who told him these cows had been fetched 
 away on the same day that he (plaintiff) had removed 
 the cow and calf (June 5). This was the first intima- 
 tion plaintiff had of the removal. On June 5 the two 
 cows were in fact taken away by two men who were 
 thieves. Early on June 6 the defendant's stockman, 
 Payne, found the cows were missing and at once 
 reported this to the defendant and his foreman, 
 Foster. No other cows had been substituted for the 
 two in question, yet the defendant assumed that the 
 two had been removed by order of the plaintiff and 
 took no step whatever in regard to them. This 
 erroneous assumption was in no way brought about 
 by anything done or omitted by the plaintiff. The 
 stockman, Payne, was not so easily satisfied, and on 
 June 7 he made enquiries of some men working for a 
 contractor near the land where the cows had been 
 grazing, who informed him that the cows had been 
 taken away on the 6th by two men whom they could 
 not identify. This also Payne reported to the defen- 
 dant, but defendant still did not communicate with 
 plaintiff or the police or take any other step in the 
 matter. The cows could readily have been identified ; 
 
 54 
 
being heavy in calf it was not possible to move them 
 far on foot ; and if enquiries had at once been insti- 
 tuted, it would have been extremely difficult for the 
 thieves either to dispose of them in the neighbourhood, 
 or to get them away by vehicle without discovery. It 
 is, of course, not a matter of mathematical certainty, 
 but in my opinion there is no reasonable doubt that 
 if, when the cows were missed, the police had been 
 communicated with and prompt search made, they 
 would have been recovered, and so far as it is a question 
 of fact I so find. 
 
 These being the facts, how does the matter stand 
 in point of law ? Defendant was a bailee of plaintiff's 
 chattels for reward. He was not an insurer of them, 
 but he was under an obligation to exercise ordinary 
 care in their custody, or, as it is sometimes put, to 
 act as a reasonably prudent man would act with regard 
 to property of his own. In my opinion he failed to 
 discharge that duty. If, contrary to my view, the 
 document of April 20 forms part of the contract, it 
 appears to me rather to increase than lessen defendant's 
 responsibility. It was contended for the plaintiff 
 that the defendant was guilty of negligence in not 
 keeping the gates leading to his land locked, but I do 
 not accede to that view ; farmers in country districts 
 are not in the habit of keeping the gates of their 
 fields and meadows locked. I do not find any negli- 
 gence on the part of the defendant or his servants 
 down to the morning of June 6, but I think there was 
 then a breach of duty, and that it was the effective 
 cause of the loss. Although, as I have said, the 
 defendant was not an insurer, his prima facie obligation 
 was, upon demand, to re-deliver the chattels entrusted 
 to him, and he can only excuse his failure so to do by 
 showing that he was prevented by some cause not due 
 to the breach of his duty to take reasonable care. 
 
 55 
 
This onus he has, in my opinion, not discharged. As 
 soon as he learned the cows were missing, I think his 
 plain duty — at the least— was to communicate with 
 the plaintiff and inform him of the fact, but he did 
 nothing whatever for more than three weeks, when 
 it was too late for anything useful to be done for the 
 recovery of the animals. It was urged by Mr. Du 
 Parcq for the defendant that once the cows were 
 removed from the defendant's land by thieves the loss 
 must be taken to have definitely occurred, and that 
 subsequent happenings are irrelevant. I do not agree. 
 If this is sound doctrine, it logically follows that if 
 defendant had met the cows in the highway a few 
 hundred yards from his farm, in charge of notorious 
 cattle-stealers, he might with impunity have done 
 nothing. A bailee's duty goes further than that; 
 varying no doubt according to the particular circum- 
 stances. In my view the loss in this case occurred, 
 not by reason of theft, which was merely causa sine 
 qua non, and not a complete and final cause, but by 
 the neglect of a duty which the defendant owed the 
 plaintiff ; and accordingly I give judgment for the 
 plaintiff for the agreed damages of 90/. with costs. 
 There will be judgment for the defendant (in the 
 action) on the counterclaim for the agreed sum of 
 8/. 18s. 6d. for agistment charges with costs, and I 
 direct a set-off. Stay of execution with a view to an 
 appeal on usual terms. 
 
 Note. — On defendant's appeal this Judgment was reversed by 
 Divisional Court (34 T.I/.R. 486) . but was restored by Court of 
 Appeal (1919, 1 K.B. 443). 
 
 56 
 
CUTI.ER V. FAREHAM STEAM I^AUNDRY 
 CO., LTD. 
 
 Bailment — Liability of Laundry Company for Fire — Burden of Proof 
 
 A Laundry Company is not liable for damage caused to 
 customers' goods by accidental fire, and is under no obligation 
 to insure them. The extent to which the burden of negativing 
 negligence as a cause of the fire rests on bailees considered. 
 
 JUDGMENT. 
 
 This is an action in detinue, which raises a question 
 of the liability of a laundry company for the loss of 
 a customer's linen, alleged by the plaintiff, and admitted 
 by the defendants, to have been destroyed by a fire 
 which occurred at the laundry on the night of Nov. 
 15-16, 1918. Negligence is not alleged in the Par- 
 ticulars of Claim. The case is one of bailment for 
 reward to the bailee^ — of the 5th class mentioned in 
 Coggs V. Bernard (Locatio operis faciendi) . The obliga- 
 tion on a bailee of that class is the exercise of such 
 care and diligence in the custody and preservation 
 of the goods entrusted to him as are ordinarily exercised 
 in the usual and proper course of carrying on businesses 
 of the kind he undertakes ; or, as it is sometimes put, 
 such care as an ordinarily careful man uses with 
 regard to his own goods ; see Brabant v. King (1905 
 A.C. 632) ; Sanderson v. Collins (1904, 1 K.B. 628) 
 It is his duty, inter alia, to see. that the building in 
 which he places the goods is in such a state that the 
 goods will be reasonably safe there, but he does not 
 warrant that the building is absolutely safe {Searle v. 
 Laverick ; L.R. 9 Q.B. 122). His liabilites are not 
 those of a common carrier or innkeeper : he is not an 
 insurer and is not answerable for the consequences 
 of an accident not resulting from negligence on his 
 part : see Gar side v. Trent I^avigation (4 T.R. 581) ; 
 
 57 
 
Searle v. Laverick {supra) ; Sanderson v. Collins 
 (supra) ; Cheshire v. Bailey (1905, 1 K.B. 237). " 
 
 The plaintiff proved the value of the goods 
 delivered to the defendants and destroyed at the 
 laundry, as mentioned above, to be 51., and put in 
 evidence a circular from the defendants dated March 
 1, 1919, in which, after stating that 'the company 
 finds itself in a difficult position, as the total* claims 
 owing to the increased cost of fabrics due to the war 
 amounted to 2,260/., while the compensation received 
 from the insurance company was only 1,000/.,' they 
 offered to pay plaintiff in settlement half the amount of 
 her claim. 
 
 On the facts admitted and proved, it was sub- 
 mitted for the plaintiff that the burden was on the 
 defendants to show that the fire which brought about 
 the loss arose from some cause for which they were 
 not responsible in law ; and I so held, on the authority 
 of the recent case of Coldman v. Hill, which went from 
 this Court to the Court of Appeal (1918, 1 K.B. 443) : 
 see also Reeve v. Palmer (5 C.B. [N.S.] 84) ; Mackenzie 
 V. Cox (9 C. & P. 632). Thereupon evidence was 
 called for the defendants, who put in the box their 
 manageress, their engineer, and a police officer called 
 to the scene of the fire soon after it broke out. On 
 this evidence I find the following facts :^(1) The 
 defendants' laundry premises stood isolated from 
 other buildings in a field some 2J acres in extent ; 
 (2) No night watchman or resident caretaker was 
 ernployed, but defendants' engineer lives in a house 
 some 150 yards from the laundry ; (3) The laundry 
 was lighted by electricity ; (4) Coal fires were used to 
 run the boiler and warm the mess-room of the staff ; 
 (5) There was a gas installation in the ironing room 
 for ironing and dressing purposes, and gas was used for 
 warming the manageress' sitting-room. Before the 
 
 58 
 
manageress left, as hereafter to be mentioned, the 
 irons in the ironing room had been wound up, so as to 
 remove them from contact with anything inflammable ; 
 (6) The manageress left about 7.30 p.m. on Nov. 15. 
 She looked round the place before leaving to see that 
 all was safe, and locked up the mess-room and ironing 
 room. The fire in the mess-room was then out, and 
 the gas fire in the manageress' sitting-room had not 
 been used that day ; (7) Just before the manageress 
 left, the engineer banked up the boiler fire, turned 
 off the gas at the main, and switched off the electric 
 current ; (8) Between one and two at night the 
 laundry was seen by a police officer to be blazing, and 
 he at once went there. He found all the external 
 doors intact except the front entrance door, which 
 was burning. As soon as the operations of the fire 
 brigade made it possible, he entered the building, and 
 inspected {inter alia) the boiler house and engine 
 room : he found that both the gas and electric supplies 
 were cut off ; (9) Neither the manageress' sitting- 
 room, the mess-room, nor the engine room was affected 
 by the outbreak ; (10) Careful investigation by the 
 police officer and the defendants' staff failed to disclose 
 an5^hing dangerous or anything to show how or where 
 the fire originated ; (11) There was nothing in the 
 structure or arrangements of the laundry, or in the 
 circumstances affecting it which existed when it was 
 left on the evening of Nov. 15, likely to lead to an 
 outbreak of fire. 
 
 If on those facts the burden of proof shifts and it 
 rests on the plaintiff to make out that the fire arose 
 from crime, negligence, or breach of duty on the part 
 of the defendants^ — a proposition for which Syre^ v. 
 Carruthers (B.B. & E. 469) and Goldman v. Hill [supra) 
 afford some support — the plaintiff wholly failed to 
 satisfy me on the point, and cannot succeed. If, 
 
 59 
 
however, the true view is that, in circumstances 
 such as those present here, the onus remains on the 
 defendant throughout, the case is not so simple. It 
 is not easy to prove a negative, and the defendants 
 do not pretend to be able to show precisely how 
 the fire came about. But they called all the witnesses 
 one could expect to see and furnished full information 
 as to the premises, the course of business carried on 
 upon them, and the precautions taken to preserve the 
 goods entrusted to them, and at the close of their 
 evidence I intimated my view (to which I adhere) that 
 such evidence, standing alone, entitled them to a find- 
 ing that the fire causJing the loss complained of arose 
 accidentally, without negligence on their part, or any 
 breach of the duty which, as stated above, rests on a 
 bailee of the class' in question. 
 
 The plaintiff's solicitor called no rebutting evi- 
 dence, but submitted that the defendants' evidence 
 disclosed negligence or breach of duty on their part, 
 causing the plaintiff's loss. The matters he reHed on 
 were (a) Absence of a night watchman or resident 
 caretaker ; (6) Omission, after the outbreak of war, 
 to raise the sum to the extent whereof customers' 
 goods were insured against fire. As to [a] there was 
 no evidence that it is usual to employ a night watchman 
 or resident caretaker in an isolated laundry. I should 
 have been surprised if such evidence had been forth- 
 coming, and I come without hesitation to the conclu- 
 sion that in this connection the defendants were not 
 guilty of negligence or the want of ordinary care. As 
 to [b], plaintiff's solicitor drew my attention to the 
 case of Sidaways v. Todd (2 Stark 400), but the claim 
 there was against a warehouseman for money received 
 from insurers with whom he had insured the plaintiff's 
 goods, and it is sufficient to say that no claim of that 
 nature arises on the Particulars of Claim in the case 
 
 60 
 
before me. The claim here is not for money had and 
 received, but simply a claim in detinue. Incidentally, 
 any claim based on the doctrine of Sidaways v. Todd 
 appears to have been met in anticipation by the ' 
 defendants' offer before action contained in the 
 circular of March 1 before referred to. No authority 
 was cited to support the view that defendants were 
 under any obHgation to insure their customers' goods, 
 and I am clearly of opinion that the suggestion has no 
 foundation in law. In effect, it amounts to a contention 
 that defendants were in the position of insurers, as 
 plainly they were not. The fact that they chose to 
 insure their customers' goods to some extent is, to my 
 mind, immaterial as regards this action. They are 
 either liable for the loss caused by the fire or they are 
 not. K they are liable, they must make good the loss, 
 whether they have covered themselves by insurance 
 or not. If they are not liable, cadit quoestio. 
 
 For the fore?going reasons I am of opinion that 
 the defendants have discharged the burden upon 
 them of showing that they were prevented by a cause 
 for which they are not responsible from performing 
 their contractual duty of returning plaintiff's goods 
 upon demand, and I dismiss the action with costs. 
 If plaintiff desires leave to appeal it will be granted, 
 with a stay of execution on the usual terms. 
 
 61 
 
COXm V. BOWIvINC. 
 
 Bailment — Liability of Boarding-house Keeper — Loss of Guest's Goods 
 — Burden of Proof. 
 
 Though the obligations of a boarding-house keeper are less 
 extensive than those of an inn-keeper, he is bound to take 
 ordinary care of such of his guest's goods as he receives, and 
 can only excuse failure to re-deliver them on demand by proving 
 affirmatively that he is prevented doing so by some cause for 
 which he is not responsible. 
 
 JUDGMENT. 
 
 This case raises a question of the liability of 
 boarding-house proprietors in connection with the 
 goods of their guests. The plaintiff, whilst sta3dng at 
 the defendant's boarding-house, sent a parcel of 
 linen to a laundry. After the Hnen had been brought 
 back to the house it disappeared, and plaintiff sues 
 the defendant in respect of the loss he thereby sus- 
 tained. The claim, as framed in the Particulars, is 
 based on negHgence, but in order to avoid risk of the 
 point of substance failing to be finally disposed of on 
 any question of form I allowed an amendment at the 
 trial by the addition of an alternative claim in detinue, 
 defendant's soUcitor not desiring an adjournment. 
 
 On the defendant's premises is a room called 
 the staff room in which, according to long-standing 
 practice, all tradespeople having to deliver goods 
 for defendant or her guests deposit them. They do 
 not knock nor ring at an outer door, but go straight 
 in to the staff room. In due course, the laundry 
 servants delivered a parcel containing plaintiff's clean 
 linen in the staff room, one of defendant's maids being 
 in the room at the time, and at least one other of her 
 maids seeing the parcel there. The practice is for 
 each chambermaid of the establishment to collect the 
 linen of the particular guests on whom she attends 
 from the staff room, when she sees it there, and take it 
 
 62 
 
to the guests' rooms. As will be gathered from what 
 I have said, the servants of tradesmen coming to the 
 house have free access to the staff room, and no 
 evidence was given of any precautions taken to prevent 
 other persons also walking in or out at their pleasure. 
 When plaintiff enquired for the clean Unen in question, 
 it was not forthcoming, and the investigation made 
 by defendant, when plaintiff complained to her, 
 after hearing his chambermaid's statement, resulted 
 in nothing being discovered beyond what I have 
 mentioned above. 
 
 As to the law, a boarding-house keeper is not 
 under obligations so extensive as those of an inn- 
 keeper, but he takes his guests into his house for reward, 
 and in regard to them and such of their goods as he 
 receives he is bound to take ordinary care. I have not 
 to deal with the case of articles retained by the guest 
 in his own custody and left in his room or elsewhere on 
 the premises, as to which questions — sometimes of 
 difficulty — frequently arise. Here the goods were 
 deUvered to the defendant for the plaintiff by being 
 deposited, according to the usual practice of the 
 establishment, in the place assigned by her for the 
 purpose, and left there to the knowledge of her servants. 
 They then disappeared in some unexplained way and 
 nothing more is known. In my opinion there was, 
 in the circumstances, an absence of that degree of care 
 of the guests' goods which the law requires of 
 a boarding-house keeper, and I think the claim as 
 originally framed is made out. But I do not rest my 
 judgment on that ground alone. Defendant was a 
 bailee, and the onus is on her to show that her failure 
 to deliver up the plaintiff's goods to him on demand 
 was due to some cause for which she is not responsible 
 {e.g^, fire or theft happening without negligence on 
 the defendant's part, or Act of God). In my view 
 
 63 
 
she has entirely failed to discharge the onus. ^ Having 
 received the goods, she can give no more information 
 as to what became of them than that, when plaintiff 
 asked for them, they had disappeared. That is all 
 she or her servants can say. Bullen v. Swan Electrical 
 Co. (23 T.I,.R. 258), cited by defendant's solicitor, 
 is clearly distinguishable. In the first place, the defen- 
 dants there were gratuitous bailees, whose responsibiU- 
 ties are lighter than that of bailees for reward, but a 
 more important point is that they gave evidence 
 which satisfied the judge at the trial that their arrange- 
 ments for the custody of the goods were reasonably 
 sufficient and that the loss occurred without an 
 absence of the degree of care imposed on them by 
 law. The defendant here adduced no evidence on 
 which I can come to any such conclusion : the only 
 evidence before me points the other way. 
 
 The plaintiff succeeds, and the defendant being 
 unable to return the goods, and so perform her contract 
 as bailee, must answer in damages for the breach of it. 
 The measure of damages is the value of the goods, 
 which I assess at 4/. 10s. There will be judgment for 
 that sum with costs. 
 
 64 
 
JENKYNS V. SOUTHAMPTON & ISLE 
 OF WIGHT STEAMSHIP CO. 
 
 Contract — Carrier's Liability — Custody of Luggage — Ordinary Personal 
 Luggage — Effects carried as Bailee. 
 
 Where a leather suit case carried by an officer in the army 
 was put on board a cross-channel packet by a man in uniform 
 not proved to be a servant of the Steamship Company, and 
 deposited in the place reserved for passengers' luggage, but 
 was not forthcoming at the end of the journey, — Held, that 
 the Company was liable for the loss, the luggage having come 
 into their custody as common carriers ; and that the liability 
 extended to all effects in the suit case, of a kind usually 
 carried by the class of persons to which the passenger 
 belonged, ^including a revolver, flash lamp, spurs and straps 
 (which were not to be treated as ' tools of trade '), and a pair 
 of binoculars belonging to a friend, in which the passenger had 
 a special interest as bailee. 
 
 JUDGMENT. 
 
 This action is brought against the defendants as 
 common carriers. It was not disputed that they are 
 common carriers, and no special contract nor conditions 
 were put in evidence. With the defences raised I will 
 deal later. The facts are these : — On 18th June last 
 the plaintiff, an. officer in uniform, travelled from 
 Southampton to Ryde by the defendants' steam boat, 
 Solent Queen. He motored to the pierhead at 
 Southampton, arriving there some ten minutes before 
 the time fixed for the departure of the boat, and at 
 once went on board. He had with him three articles 
 of luggage, one of which, a leather suit-case with its 
 contents, is the subject matter of the action. The 
 luggage was taken from the motor car by a porter, 
 who was in uniform, but was not proved to my satis- 
 faction to be a servant of the defendant company. 
 He came up to the car on its arrival at the pier head, 
 took the luggage on board, and deposited it on the 
 lower deck, in the usual place, in the bows. The 
 
 65 
 
plaintiff saw it placed and left there, and after 
 the boat had proceeded a mile or more down 
 Southampton Water he noticed it lying where the 
 porter had placed it. Attached to the suit case was 
 a label bearing plaintiff's name and destination 
 ('St. Helen's Fort, I.W.') The boat stopped at 
 Cowes for passengers to get on and off, and then 
 proceeded to Ryde, where the suit case was not 
 forthcoming. 
 
 At the close of the plaintiff's case the defendants' 
 solicitor submitted that no case had been made calling 
 for an answer ; and, I having ruled against him, he 
 elected to rely on his objection in point of law, and 
 called no evidence. 
 
 The first point raised was that, as it had not been 
 established that the luggage was handled by a servant 
 of the defendants, they could not be said to have ever 
 received it at all, and came under no liability in regard 
 to it. In my opinion this point fails. The plaintiff 
 was received as a passenger, accompanied by his 
 luggage. He and it were allowed by the defendants' 
 servants to pass across the gangway from the pier to 
 the boat ; and, his luggage being deposited in the 
 usual and proper place on the boat, I think it was 
 received by the defendants, just as much as the plaintiff 
 himself was. To my mind, it is immaterial, in the 
 circumstances, whether the deposit was made by the 
 hand of a servant of the defendants or an agent of the 
 plaintiff. In my view, when the boat left with the 
 luggage in the position mentioned above, the luggage 
 was in the defendants' custody as common carriers, 
 and they were bound to deliver it up to the plain*^iff 
 at the conclusion of the journey : See Richards v. 
 L. B. and S.C. Railway Co. (7 C.B., 839.) 
 
 The next point taken was that the contents of the 
 suit case, as set out in the particulars of claim, were in 
 
 66 
 
their nature not ' ordinary personal luggage,' and that 
 on that ground the defendants are not liable for their 
 loss. The following is the full list : — Revolver, sHde 
 rule, brushes, razor and mirror. Army books, wearing 
 apparel, ear defenders, set of compasses, binoculars 
 in case, spurs and straps, flash lamp, and silver watch. 
 In this connection regard must be had to the par- 
 ticular class of persons to which the passenger belongs : 
 Macrow v. G.W. Ry. Co. (Iv.R. 6 Q.B. 612). And with 
 the possible exception of three articles, which I will 
 deal with later, I am of opinion that all the articles 
 mentioned in the particulars are such as an officer in 
 the Army usually takes with him for his personal use 
 and convenience, and must, on the authorities, be 
 regarded as his personal luggage. The three articles 
 referred to above are the slide rule, Army books, and 
 set of compasses. With some hesitation, I hold these 
 to be in the nature of " tools of trade " — see the 
 Canadian case of Bruty v. Grand Trunk Ry. (31 Upp. 
 Can. Rep. 66) — and not personal luggage, on the 
 ground that they are not articles carried by officers 
 generally, but only by an officer employed on special 
 duty. Their value is 31. lis., and the claim is thereby 
 reduced to 371. 4s. 2d., as to which, so far as amount 
 is concerned, there is no dispute. 
 
 The remaining point argued on behalf of the 
 defendants had reference to the binoculars, which did 
 not belong to the plaintiff, but were borrowed by him 
 from a friend. It was contended that the claim must, 
 in any event, fail as to this article. A bailee can, 
 however, maintain the action by virtue of his special 
 interest — see Freeman v. Birch (1 Nev. and Man. 420) 
 — and this objection also fails. There will be judgment 
 for the plaintiff for 371. 4s. 2d. with costs. 
 
 Note. — ^Appeal to Divisional Court dismissed. 
 
 Furthej Appeal to Court of Appeal dismissed (1919 2 K.B. 135). 
 
 67 
 
DAPHNE V. BAII.EY. 
 
 Landlord and Tenant — Trespass — Forcible Entry by Landlord after 
 Notice to Quit — Ejectment of Tenant's Goods following Forcible 
 Entry — Right of Tenant to Damages. 
 
 A landlord, having given his tenant notice to quit, made 
 forcible entry on the premises and turned the tenant's furniture 
 out into the street. Hei,d liable in damages for trespass, on the 
 ground that the notice to quit had been waived, and that the 
 tenancy consequently was not determined. The question of 
 liability for damage caused by ejectment of goods following 
 entry by a landlord entitled to possession, but taking it by 
 force, considered. Doctrine of Newton v. Harland (1 Man. & G. 
 644) and Beddaltv. Maitland (17 CD. 174) questioned. 
 
 JUDGMENT. 
 
 The plaintiff brings this action to recover damages 
 for an alleged trespass to premises in her occupation 
 and damage to her chattels. 
 
 The substance of the complaint is that on May 
 15 last the defendant forcibly entered the premises 
 in question, which had been let by him to the plaintiff, 
 and ejected her and her furniture. That he, in fact, 
 entered the premises and turned out the plaintiff's 
 goods is not disputed, and his solicitor very properly 
 admitted at the outset that if, on May 15, a tenancy still 
 subsisted, the defendant's-acts amounted to a trespass; 
 but he contended that the plaintiff's tenancy had been 
 determined ; that she was at the date in question 
 herself a tresspasser , and that the acts of the defen- 
 dant complained of were done in the lawful exercise of 
 his rights as landlord, consisting, so it was said, in a 
 peaceful entry, followed by removal, in a manner not 
 improper, of the plaintiff's goods, which, contrary 
 to defendant's repeated demands, she had wrongfully, 
 allowed to remain on the premises. The defendant 
 is the occupier of the porter's lodge in the Close of 
 Winchester Cathedral, and in February 1918, he, by 
 
 68 
 
word of mouth, sub-let an unfurnished room on the 
 first floor of the lodge to the plaintiff, undertaking to 
 clean the grate and remove bath and slop water for 
 her. For rent and these services plaintiff agreed to pay 
 an inclusive sum, but on the evidence there is room for 
 two views as to whether a weekly or a monthly tenancy 
 was originally arranged. In fact, the plaintiff paid 
 11. each four weeks in advance, which seems to me 
 inconsistent with an agreement for a weekly tenancy. 
 I do not think the point is material, but if it is I find 
 that the tenancy was a monthly one, at an inclusive 
 rent of 1/. payable monthly in advance. The plaintiff 
 furnished the room and occupied it as a bed-sitting 
 room down to the time of the alleged trespass. In 
 December, 1918, defendant verbally gave plaintiff 
 notice to quit in five weeks, and the plaintiff stated her 
 belief that the fifth week was added as a concession, 
 in consequence of representations made on her behalf 
 to the defendant by Archdeacon Robinson. She 
 suggested that at an interview on April 28 defendant 
 agreed that she should remain until she could find 
 other quarters, but she entirely failed to satisfy me of 
 this, and I am clear that continuously from December, 
 1918, onwards defendant, to plaintiff's knowledge, 
 wanted possession and repeatedly applied for it. On 
 May 14 he informed plaintiff that unless she removed 
 her goods by mid-day on the 15th he should come with 
 other persons, force the door if necessary, and put the 
 furniture out on the pavement. Between 1 and 2 
 o'clock in the afternoon of the 15th, defendant, with 
 two men, came to the room, and, after knocking at the 
 door, which was shut but not fastened, opened it, and, 
 without waiting for an answer to the knock, entered 
 the room, where plaintiff was sitting with a lady 
 friend. Defendant had in his hand tools for breaking 
 open the door, and he avowed in the box his intention 
 
of using them if necessary. In spite of plaintiff's 
 protests, made immediately upon the entry, defendant 
 and his assistants proceeded to remove the furniture 
 from the room and place it on the pavement outside. 
 Plaintiff, who, defendant says, appeared frightened, 
 at once left the premises and communicated with the 
 police and her solicitor whilst the removal went on. 
 A few small things were left in a cupboard, and plain- 
 tiff's piano was only moved as far as the head of the 
 stairs, but with these exceptions the whole contents of 
 the room were put out on the pavement. The removal, 
 which occupied several hours, was carried out with 
 reasonable care, the smaller articles being packed in 
 cases which defendant provided. lyate in the evening 
 defendant offered to place the goods in a shed near by, 
 but this plaintiff declined. She endeavoured to get 
 the goods removed to a place of safety, but did not 
 succeed that day, and they remained in the open until 
 the latter part of the 16th. Some damage was done to 
 the goods in the course of their removal, but if defen- 
 dant was entitled to eject them there was no wilful 
 damage, nor an5i;hing improper in the method of 
 removal. 
 
 Whether or not it is necessary for disposing of the 
 case, it is, perhaps, desirable that I should express my 
 view on the questions raised as to forcible entry, and 
 as to that the position was this : — Defendant, pursuant 
 to his threat on the previous day, went to the room, 
 accompanied by two other men, able-bodied like 
 himself,: taking with him, also, tools with which he 
 intended to break open the door if he found it fastened. 
 The three men entered the room without giving the 
 occupier (a lady) an opportunity of objecting and,having 
 entered, remained there, and, in spite of her protests, 
 ejected the furniture. In my opinion this conduct is 
 within the mischief aimed at by the Act of 5 Richard 
 
 70 
 
II. Stat. 1, Cap. 8, not being an entry in a ' peaceable 
 and easy manner/ but an entry, within the meaning of 
 that Act, if not ' with multitude of people,' at any rate 
 ' with strong hand.' There was a show of force which 
 was calculated to, and did, over-awe the occupier and 
 I regard the entry as one forbidden by the Act, adopting 
 with respect the reasoning of Fry, J. (as he then was) 
 in Edwick v, Hawkes (18 CD. at pp. 210, 211) in 
 circumstances which seem to me in this connection 
 indistinguishable. (See also Milner v. Maclean, 2 C. 
 & P. 17.). If, then,.the plaintiff's tenancy had coine 
 to an end before May. 15, and defendant is to iae 
 regarded as a landlord entitled to possession, but 
 obtaining it in, an unlawful way, a nice question arises 
 as to whether the action is maintainable. The Statute 
 of Richard II^^ wHilst making a forcible entry criminal, 
 provides no civil remedy; but if the matter were 
 res integm. it would seem to me that, on general prin- 
 ciples, a good deal might be said for the view that the 
 entry, being a crime, was also, if causing special 
 damage to an individual, an actionable tort at his 
 suit ; but the contrary is well settled. (See Pollen v. 
 Brewer (7 C.B. [N.S.] 371), followed in Beddall v. 
 Maitland [17 CD. 174). Plaintiff's solicitor, however, 
 whilst accepting the position that if the tenancy had 
 been determined no action could be based on the 
 forcible entry, contended that, even if plaintiff's 
 possession was that of a mere trespasser, she was 
 entitled to sue ifi respect of the subsequent and sub- 
 sidiary act of ejecting her chattels. This proposition 
 is somewhat startling, but it is said to be supported by 
 the judgments of Fry, J. in Beddall v. Maitland and 
 Edwick V. Hawkes (supra). In the latter case there was 
 a finding of assaults on the tenant and his wife before 
 complete possession had been obtained, ^nd on that 
 ground it may, perhaps, be distinguished, as, too, may 
 
 71 
 
Hillary v. Gay (6 C. & P. 284), a case at nisi prius, on 
 which, also, plaintiff's solicitor relied ; but Beddall v. 
 Maitland gives me more difficulty. The grievance 
 alleged in the counterclaim there, was forcible entry, 
 followed by the ejectment of the occupier and his 
 furniture, and, after pointing out that no action lay 
 for the entry (the landlord being entitled to possession) , 
 the judgment proceeds : — ' But in respect of indepen- 
 dent wrongful acts which are done in the course of or 
 after the forcible entry, a right of action does arise, 
 because the person doing them cannot allege the acts 
 were lawful unless justified by a lawful entry, and he 
 cannot plead that he had a lawful possession.' If, by 
 ' independent lawful acts,' is to be understood acts 
 which, apart from the Statute of Richard II., would 
 be tortious (as, e.g., an assault on the person in posses- 
 sion, or damage to his goods by unnecessary violence 
 or negligence) I see no difficulty ; but it is urged that, 
 reading the learned judge's observations in this case 
 and Edwick v. Hawkes as a whole, his opinion was that 
 acts, otherwise justifiable, were actionable by reason of 
 the Statute, and I do not find it easy to resist that 
 interpretation. But on this point Fry, J., expressly 
 founds himself on Newton v. Harland (1 Man. & G. 
 644), and as the view which, after much difference 
 of judicial opinion, ultimately prevailed there has met 
 with very rough weather in many later cases, as well as 
 in text books of weight, "I may, pejhaps, venture to 
 express the doubt I strongly entertain whether the 
 mere fact of the method of entry being unlawful can 
 afford foundation for a civil action in respect of such 
 matters as the subsequent ejectment of the occupier's 
 goods without negligence or unnecessary violence, any 
 more than it can as regards the entry itself. The 
 balance of authority appears to me to favour a negative 
 answer to the question : see Harvey v. Brydges 
 
 72 
 
(14 M. & W. 437) ; Davis v. Burrell (10 C.B. at p. 825) ; 
 Pollen V. Brewer (7 C.B. [N.S.] 371) ; Blades v. Higgs 
 (10 C.B. [N.S.] 713) i Lows v. Telford (1 A.C. at p. 
 426); Jones v. Foley ([1891] 1 Q.B. at p. 733) ; Smith's 
 " I^eading Cases," vol. 1 (lOth Ed.) 134. 
 
 But, for a reason about to be stated, I do not think 
 a decision on this point is necessary for disposing of the 
 case before me. In my opinion the tenancy had not 
 been determined at the date of the entry. On May 5, 
 plaintiff's soHcitor sent defendant ' 30s. rent to this 
 date,' and the money was accepted and acknowledged 
 in writing on May 7 without demur. On or about 
 May 9 defendant" made a written demand for '5s., a 
 week's rent due May 12,' accompanying it by a notice 
 that as from May 12 the rent of the room would be 1/. 
 a week. There is thus, notwithstanding the previous 
 notice to quit and demands of possession, a clear 
 assertion or recognition of a tenancy subsisting at 
 least as late as May 12 ; and it is not pretended that 
 any notice to quit was or could have been given after 
 that date, effective to determine the tenancy by the 
 15th. Indeed, in his evidence in the box, the defen- 
 dant stated that when he went to the room on the 14th, 
 and again on the 15th, the first thing he did was to ask 
 for an answer to the notice he had given of an increase 
 in the rent from 5s. a week to 1/. Under those circum- 
 stances it is impossible for him successfully to contend 
 that the tenancy had come to an end, and accordingly 
 I hold that the whole of his proceedings on the 15th — 
 the entry (whether I am right in regarding it as 
 ' forcible ' or not), as well as the ousting of the furniture 
 — were acts of trespass ; and I come, without regret, 
 to the conclusion that the defendant's conduct in 
 taking the law into his own hands, instead of resorting 
 to legal process, was not merely high-handed, but 
 unlawful. It was suggested by the plaintiff's solicitor 
 
 73 
 
that defendant took the course he did believing that 
 he was prevented by the Increase of Rent, etc., Act, 
 1915, from obtaining an order of the Court for 
 possession, and his letter of March 28 lends colour to 
 the suggestion. This would, of course, afford him no 
 excuse, but if the tenancy had come to an end he was, 
 in fact, in no such difficulty, for the room, being let 
 at a rent which included payment for attendance by 
 the landlord, is, by the proviso to sec. 2 (2), excluded 
 from the operation of the Increase of Rent Act. I 
 do not think the point raised by plaintiff's solicitor 
 under sec. 1 (4) of the Courts (Emergency Powers) 
 Act, 1914, is sound. The restriction imposed by 
 that section upon recovery of possession by order of 
 justices under the Small Tenements Recovery Act, 
 1838, is not extended to proceedings in the County 
 Court. 
 
 For the foregoing reasons the plaintiff succeeds, 
 and I assess the damages at 19/., being as to 10/. for 
 the trespass to the premises, and as to 91. for damage 
 to the furiiiture. There will be judgment for that 
 sum with costs. 
 
 The case was well argued, and Avith a view to 
 saving the parties expense if it should go further, 
 as I understand is not unlikely, I have thought it 
 better to express my opinion on all the points raised, 
 although in the view I take some of them do not call 
 for a decision. 
 
 If defendant should wish to appeal, there will be 
 a stay of execution on the usual terms. 
 
 74 
 
IvIvOYD EVANS V. DORCHESTER RURAI, 
 
 DISTRICT COUNCII.. 
 
 Highway Bridge — Decayed Fence — Nuisance — Liability of Highway 
 Authority — Misfeasance or Non-feasance. 
 
 JUDGMENT. 
 
 The plaintiff's claim, as stated in the particulars 
 of claim, was for damages for injuries sustained owing 
 to the neglect of the defendants to maintain a fence 
 alongside a public footpath leading from Dewlish to 
 Milborne St. Andrews, at a spot where the path is 
 carried by a bridge over a stream. At the trial, 
 however, an application was made by plaintiff's counsel 
 for leave to amend the particulars by adding a claim 
 for damages sustained by a nuisance caused by the 
 defendants, and I granted the application. The facts 
 as I find them are as follows : — ^For many years before 
 Sept. 1910, there was on each side of the path in 
 question a post-and-rail fence, extending over the 
 bridge and for a short distance beyond each end of it. 
 The fence consisted of wooden posts, with a length of 
 iron rail running from post to post at a height of some 
 3-ft. above the ground. The bridge and. fencing are 
 shown by the accompanjdng photograph (signed by me 
 on the back) which was used at the trial. There was 
 no evidence to show by whom the fences were first 
 erected. In so far as it is a question of fact, I find 
 that they are part of the bridge. It was admitted by 
 the defendants that, as the highway authority, they 
 had in the past repaired the path and the bridge. A 
 post at or near the Dewlish end of the bridge, and on 
 the left side going from DewKsh to Milborne, had in 
 course of time become decayed at the ground level. 
 It stood in the position now occupied by the post 
 marked A on the photograph. Some two or three 
 weeks before the date of the injuries complained of 
 
 75 
 
by the plaintiff, the decayed post fell down carrying 
 with it the length of fence rail (about 6-ft.) thereto- 
 fore connecting it with the post marked C. Until the 
 post fell there was nothing apparently wrong with it, 
 but a close inspection would have disclosed the decay. 
 The defendants did not cause any inspection to be 
 made: A resident near the bridge picked up the 
 fallen post and rail shortly after the fall and propped 
 them up temporarily in the old position so as to form 
 a makeshift fence. On Friday, the 23rd Sept., 1910, 
 another resident in Dewlish (one Kent) found the 
 post and rail lying on the path, so as to be dangerous 
 to passers-by, and removed them to his own premises. 
 The plaintiff, who is the vicar of the parishes of Dewlish 
 and Milborne, was accustomed to pass over the bridge 
 twice every Sunday. On Sunday, the 25th Sept. 1910, 
 he passed over it from Milborne to Dewlish by daylight 
 and did not notice that the post and rail had dis- 
 appeared. After conducting the evening service at 
 Dewlish he proceeded to return to Milborne. It was 
 then quite dark. He missed the approach to the 
 bridge and fell some 4-ft. into the stream at the point 
 marked D on the photograph. The defendants, 
 having heard of the accident, caused the post marked 
 A to be erected in place of the decayed post and the 
 length of iron rail to be reinstated. It was admitted by 
 counsel for the plaintiff that the defendants were under 
 no liability either to erect the fence originally or to 
 repair it, but he contended that they had suffered 
 a fence belonging to them or under their control 
 to become a nuisance, that the plaintiff had been 
 injured by reason of the nuisance, and that the defen- 
 dants were liable to him in damages. He further 
 urged that if (contrary to his submission) it was 
 necessary for the plaintiff to prove misfeasance (as 
 distinguished from non-feasance) by the defendants, 
 
 76 
 
as the highway authority, misfeasance was shown, 
 the suggestion being that the removal of the fallen 
 fence by Kent — being a proper act naturally consequent 
 upon the defendants' neglect to repair — must be 
 treated as a removal of the fence by the defendants 
 themselves. I expressed the view that this latter 
 contention could not be supported, and (though the 
 point was not given up) the case for the plaintiff 
 was mainly rested on nuisance, rehance being placed 
 on Harr old v. Watney (1898 2 Q.B. 320). In my 
 opinion that case has no appUcation here. In 
 Harrold v. Watney the defendant (a private person) 
 owned a fence in close proximity to a highway, and 
 the fence was in such a condition as to be likely 
 by its existence to cause injury (as it did) to a 
 person lawfully using the highway. In the present 
 case it was not the existence of the fence, but its 
 absence of which the plaintiff complains. I think 
 the strongest way in which the case can be put against 
 the defendants is that the bridge and fence formed 
 part of the highway, that the defendants as the high- 
 way authority were Uable to repair the fence, that 
 they neglected their duty, and that the plaintiff in 
 consequence sustained injury ; in other words, the 
 case set up by the original particulars of claim. But 
 that in my opinion amounts to mere non-feasance, 
 and it is well settled that in such a case an action 
 does not lie. It is only necessary to refer to Cowley 
 V. Newmarket Local Board (1892 A. C. 345), in 
 the House of I^ords, where the earlier cases were 
 discussed. Nor do I think it avails the plaintiff to say 
 that the omission to repair resulted in a nuisance, for 
 the real grievance still remains non-feasance. If a 
 nuisance arose here, equally was there one in the 
 Newmarket case, and I think to hold that the plaintiff 
 has shown a cause of action would in effect be to dis- 
 
 77 
 
regard or fritter away a well-established rule. To 
 my mind it is in substance a claim against a highway 
 authority based on non-feasance. So far as it s a 
 question of fact, the evidence does not satisfy me 
 that thefdefendants caused a nuisance. In Whyler v. 
 Bigham Rural District Council (1901 1 Q. B. 45), also 
 relied on for the plaintiff, the defendants themselves 
 removed the fence, the absence of which led to the 
 injury complained of. That, again, is not this case. 
 Here the defendants merely omitted to repair the fence. 
 The action fails, and I give judgment for the defen- 
 dants with costs, such costs to include the cost of the 
 plan put in evidence by their surveyor. I give leave 
 to appeal, and in order to save the parties the expense 
 of a new trial in the event of my judgment being suc- 
 cessfully appealed against, I assess the damages at 
 £10 2s. 
 
 78 
 
OSBORNE V. COIyBNUTT. 
 
 Obstruction of Footpath — Nuisance — Reasonable Precautions — Con- 
 tributory Negligence — Blind Passenger. 
 
 A tradesman using a cellar opening by trap-doors on to the 
 pavement for the purposes of his business is bound to take 
 ' such reasonable caie that in the ordinary course of things no 
 injury shall happen to any of the pubUc passing by ' (per 
 Tindall, C J., in Daniels v. Potter, 4 C. & P. 266), and the precau- 
 tions to be taken must be reasonably adequate for the protection 
 of the public as a whole. So that where a passenger suffering 
 from defective eyesight fell into a cellar where the flaps had 
 been opened for the reception of goods, the opening being only 
 partially blocked, Hei,d that it was no answer to the claim of 
 the injured person for damages that a passenger enjoying 
 normal sight would have seen and avoided the danger. 
 
 JUDGMENT. 
 
 This case raises a question of liability for injury 
 caused to a pedestrian with defective eyesight through 
 interference with a highway by the use of a cellar 
 entrance, and the facts as I find them are these : — The 
 defendant is the occupier of some shops in the principal 
 street of Ryde (Union Street), which runs north and 
 south. In the pavement upon which the shops abut 
 there is an opening, 4-ft. 6-in. square, from which for 
 many years access to the defendant's cellars has from 
 time to time been obtained. The pavement is 9-ft. 
 wide, and the opening extends to within an inch or so 
 of the shop front, thus occupying practically half the 
 width of the pavement. When not in use, the opening 
 is covered by two iron doors l3dng flush with the surface 
 of the pavement. The doors are not hinged, but 
 when the opening is in use are lifted right off. On 
 July 6, 1918, about half-past four in the afternoon, two 
 carriers' vans conveying goods for delivery into the 
 defendant's cellars were standing in the street opposite 
 the cellar opening, the iron doors having been removed 
 
 79 
 
by defendant's servants, who placed a step-ladder, 
 not fixed in any way, but opened so as to take the shape 
 of the letter A., on the pavement immediately on the 
 south side of the opening. One leg of the ladder 
 extended to within a short distance of the shop front, 
 not hard against the shop front, as some of the defen- 
 dant's witnesses would have me to believe, but so near 
 thereto that a person could not without some Uttle 
 difficulty pass between the ladder and the shop front. 
 On the street side of the ladder a cask was placed, the 
 ladder and the cask together extending the whole 
 width of the south side of the cellar opening, except for 
 the narrow space next the shop front which I have 
 mentioned. A clear passage-way for passengers, some 
 two or three feet wide, was left between the cask and 
 the edge of the kerb, except in so far as it may have 
 been momentarily obstructed, from time to time, by 
 the operations of the carmen. There were two other 
 casks in the roadway close to the kerb. The plaintiff, 
 a lady of 65, approached the defendant's premises from 
 the south, there being a few other passengers on the 
 pavement at the time. Her eyesight is very defective, 
 but down to the time of the accident she was in the 
 habit of walking about the streets unattended and, on 
 occasion, of cycUng. On reaching the step ladder, 
 she proceeded to pass in the narrow space between it 
 and the shop front. To a person of normal sight, 
 proceeding with ordinary care, both the ceUar-opening 
 and the means, such as they were, taken to guard it 
 would have been apparent, but the plaintiff, in conse- 
 quence of her defective vision, merely saw the ladder, 
 and did not reaUse the purpose for which it had been 
 placed on the pavement : she did not see the cellar- 
 opening, nor did she notice the casks nor the vans. 
 Immediately after passing the step-ladder she fell into 
 the opening, and sustained a broken leg and other 
 
 80 
 
injuries. On being taken into defendant's shop, and 
 asked if she was much hurt, she said the accident 
 was her own fault, but in the circumstances I do not 
 think much importance is to be attached to this 
 remark ; certainly it is not conclusive. Plaintiff was 
 at a Nursing Home thirteen weeks, and her special 
 damage amounted to over ^^50. If she is entitled to 
 recover, I assess the damage at ;^80. 
 
 It was contended for the plaintiff, if I rightly 
 understood the argument, that defendant, in causing 
 the opening to be made in the highway, acted at his 
 peril, and was under an absolute duty to prevent 
 injury to passengers arising from it, my attention 
 being drawn to a passage in Clerk & Lindsell on 
 Torts (6th ed., pp. 478-9) ; and it was submitted that 
 contributory negligence would afford no defence to 
 the action. Though the degree of care required in such 
 circumstances is undoubtedly considerable, I think 
 this -s putting the case too high. In using the means 
 of access to his cellars which has so long existed, 
 defendant was doing nothing unlawful, but the use 
 of the opening causing a potential danger to passers-by, 
 he was bound to provide reasonable protection' to the 
 public. He is, however, not an insurer, and the 
 doctrine of Rylands v. Fletcher (L-R- 3 H.Iy. 330) does 
 not, in my opinion, apply. Further, I think it clear 
 law that contributory negligence, if established, is 
 an answer to the action. The true rule, is, I conceive, 
 stated in the summings-up of Tindall, C.J., in two 
 cases reported in 4 C. & P. — Daniels v. Potter, at p. 266, 
 and Procter v. Harris, at p. 337. In the first case, 
 after pointing out that, the cellar-flap having been 
 used by the defendant for many years, the right to 
 use it was unquestionable, the Chief Justice told the 
 jury that ' the party using the cellar is bound to take 
 such reasonable care that in the ordinary course of 
 
 81 
 
things no injury shall happen to any of the public 
 passing by. . . A tradesman, under such circum- 
 stances, is not bound to adopt the strictest means, but 
 he is bound to use such care as any reasonable man, 
 looking at it, would say was sufficient.' In Procter v. 
 Harris the direction was in the following terms : — 
 ' The question is whether a proper degree of caution 
 was used by the defendant. He was not bound to 
 resort to every mode of security that could be surmised, 
 but he was bound to use such a degree of care as would 
 prevent a reasonable person, acting with an ordinary 
 degree of care, from receiving any injury. The 
 public have a right to walk along these footpaths 
 with ordinary security. It may be said that such 
 things (cellar openings) must be, and that trade 
 cannot be carried on without them, but, on the other 
 hand, _. .as they are for the private advantage of 
 the individual, he is bound to take proper care when 
 he is using his cellar to prevent injury. With respect 
 to the plaintiff you will have to consider whether there 
 was so Uttle care and caution on his part that he was 
 himself guilty of negligence in running into the danger 
 The question is whether you thiiik this flap was in 
 the nature of a nuisance, used in the manner it was, 
 and whether, looking at all the circumstances, the 
 plaintiff fell in owing to the negligence of the defendant 
 in not sufficiently protecting the place. If you think 
 so, you will find for the plaintiff ; but if you think 
 the plaintiff himself did not use due caution in the 
 matter, then you will give yom verdict for the defen- 
 dant.' See also Pickard v. Smith (10 C.B., N.S., at 
 p. 479), where the duty is expressed as ' a duty to take 
 reasonable precautions not to injure persons lawfully 
 using the highway.' It may be said that the duty of 
 a person in the position of the defendant is put higher 
 in Bowey v. Peale (1 Q.B.D. 321), but I think the 
 
 82 
 
comments on this case in the House of I^ords in Hughes 
 V. Percival (8 A.C. 443) leave me free to direct myself 
 (as I do) in the sense in which Tindall, C.J., directed 
 the juries in the cases referred to above. 
 
 Further authority for the view that contributory 
 negUgence may afford a defence in this class of action 
 is to be found in the judgment of Kelly, C.B., in Lay v. 
 Midland Railway Co. (34 ly.T. 30), and in the judgment 
 of the Court of Queen's Bench delivered by Denman, 
 C.J., in Lynch v. Nurdin (1 Q.B., at p. 36). But 
 these cases show also that in considering the question 
 of contributory negUgence regard must be had to the 
 circumstances affecting the particular person against 
 whom it is alleged. One who, for his own purposes, 
 causes potential danger in a highway must not confine 
 his protective measures to what would be sufficient 
 in the case of adults in fuU possession of their physical 
 powers. The precautions must be reasonably adequate 
 for the protection of the public as a whole. In both 
 Lynch v. Nurdin and Lay v. Midland Railway Co. 
 the plaintiff was a child of tender years, and in each 
 case it was pointed out that a different standard must 
 be applied than would be proper in the case of an 
 adult. A similar case is Harrold v. Watney (1898, 
 2 Q.B.), where a young child cUmbed upon a defective 
 fence at the side of a highway and was injured. 
 Vaughan Williams, LJ., said (p. 325) : ' If the defen- 
 dant says that the injury was not the consequence of 
 his act because the fence was good enough if grown- 
 up people who were passing did not touch it, and that 
 they had no right to touch it, the answer is that the 
 highway is for children also, and if he leaves such a 
 nuisance close to a highway it is exceedingly Ukely 
 to cause injury to children using the highway. If 
 that is so, the defendant cannot get out of that con- 
 clusion by relying on the act of the child in touching 
 
 83 
 
the fence, because that act would probably not have 
 been done by a grown-up person.' I have not found 
 an English authority directly in point, but it seems to 
 me in principle that similar considerations to these 
 apply to persons suffering from lameness, defective 
 hearing or sight, or other such disabilities, and that it 
 is no answer in the case before me to say that a passenger 
 enjoying normal eyesight would have seen and avoided 
 the danger. No question of a person voluntarily 
 accepting a danger apparent to him arises here ; the 
 plaintiff did not appreciate that there was any danger, 
 as persons with better eyesight would ; all she observed 
 was the step-ladder, a thing which may be placed on 
 the pavement in front of a shop for other purposes 
 than to guard a cellar-opening. Nor do I think the 
 case can be said to be one of that class where the 
 plaintiff — ^in this case walking along a footway in 
 broad daylight — brings about the injury complained 
 of by engaging in an enterprise improper for a person 
 so circumstanced to attempt ; though this is the 
 point which led me to reserve judgment. 
 
 The law being as I understand it, and the facts 
 as stated above, the conclusion to which I have come 
 is that the plaintiff, lawfully using the highway, 
 sustained her injury because the defendant's servants, 
 in breach of his duty, neglected to provide a guard to 
 the cellar-opening reasonably sufficient for the protec- 
 tion of such a passenger as the plaintiff against the 
 danger brought about by the opening, and that she 
 was in the circumstances not guilty of negligence. 
 There will be judgment for the plaintiff for 80^., with 
 costs. 
 
 If defendant wishes to appeal, he can have a stay 
 of execution on the usual terms. 
 
 84 
 
KINGSTON (PORTSMOUTH) ELECTRIC 
 THEATRE LIMITED v. BRITISH VEGETABLE 
 PRODUCTS LIMITED. 
 
 Nuisance from Smoke — Extent of Injury — Damages or Injunction — 
 Suspension of Injunction during War. 
 
 JUDGMENT. 
 
 This action is brought by the Kingston (Ports- 
 mouth) Electric Theatre Ltd. against the defendant 
 Company claiming damages for injury suffered by the 
 plaintiffs, as owners and occupiers of premises known as 
 the Shaftesbury Hall, situate in Kingston Road, 
 Portsmouth, in respect of a nuisance alleged to have 
 arisen from smoke, soot, vapours and noxious matter 
 emanating from the defendants' premises, and seeking 
 also an injunction. So far as smell is concerned, the 
 claim was but faintly pressed at the trial, and this 
 branch of it has no substance. 
 
 The plaintiffs' premises, which were acquired by 
 them some three years ago, are situated in a main 
 thoroughfare, and are used (as they were before the 
 plaintiffs' purchase) as a Cinema Theatre. The Theatre 
 is of considerable size, with accommodation for about 
 750 persons. The defendants' premises open on to 
 a side street, which enters Kingston Road at a point 
 nearly opposite the Theatre, and they extend to the 
 junction of the two streets. The defendants acquired 
 them at the end of 1915 or early in 1916. At that 
 time they were disused Brewery premises. The defen- 
 dants converted them into a factory, in which, since 
 about April 1916, they have carried on an extensive 
 business of vegetable-drying. It is not a Controlled 
 Establishment, but the whole of the products are 
 supplied, under contract with the Government, for the 
 use of His Majesty's forces. 
 
 85 
 
The defendants use in their business two furnaces, 
 heated by coal, the smoke from which is discharged 
 from a chimney-shaft, which is only about 54 feet high 
 and stands some 40 or 50 yards from the Theatre, and 
 on the N.E. side of it, the prevailing wind in the 
 district being from the S.W. 
 
 The trial occupied two days. Numerous witnesses 
 were called and at the request of the parties I visited 
 both sets of premises and viewed the surrounding 
 neighbourhood. In the result, the conclusion at which 
 I have arrived is that, at times, thick black smoke is 
 emitted in considerable volume from the defendants' 
 chimney and reaches — and, on occasions, enters — the 
 Theatre. The smoke varies in both density and 
 quantity, the greatest trouble arising when the furnaces 
 are being stoked. I am satisfied that, intermittently, 
 but frequently, smoke is so discharged as to amount to 
 a nuisance, causing substantial inconvenience to the 
 plaintiffs' servants and persons resorting to their 
 Theatre, and depriving plaintiffs of the ordinary and 
 reasonable use and enjoyment of their premises. The 
 trouble could in my opinion be much mitigated by 
 careful stoking and the use of a harder coal than 
 defendants have been in the habit of using ; but, 
 owing to the war, they have experienced, and are 
 still meeting with, great difficulty as regards labour 
 and in obtaining fuel. To entirely obviate risk of 
 nuisance, structural alterations of a substantial kind to 
 defendants' premises are probably necessary, and these 
 are impracticable at the present time, and cannot at 
 any time be carried out without suspension of the 
 defendants' business. So far as it is a material point, 
 it is to be observed that the defendants' works came 
 into existence after the Theatre had been established ; 
 or, as it is sometimes put, it is not a case of the plaintiffs 
 coming to the nuisance. 
 
 86 
 
Complaints have from time to time been made by 
 the plaintiffs to the sanitary authority, and my attention 
 was pointedly drawn by defendants' counsel to the fact 
 that there has been no prosecution under the powers 
 conferred by the Public Health Acts. Neither this, 
 nor the fact that defendants are carrying on a business 
 of public utility, and have done their best in the cir- 
 cumstances to conduct their operations without giving 
 cause for complaint, is in point of law an answer to the 
 claim. I may add, since the matter was fully discussed 
 before me, that I have no doubt, on the evidence of 
 the sanitary authority's officers, that but for the 
 abnormal conditions obtaining, and a reluctance (which 
 I fully share) to put difficulties in the way of the 
 carrying-on of work of national importance, proceedings 
 for abatement of a ntiisance would have been taken. 
 Be this as it may, I have to form my own opinion, 
 and, though by no means unwilling to have arrived 
 at a different conclusion, I am, as I have said, of 
 opinion that plaintiffs have established the existence 
 of a nuisance causing them special damage. 
 
 As regards damages, though there has been a good 
 deal of annoyance to persons waiting to enter the 
 Theatre, I do not think any material interference with 
 the performances has been made out, nor has there 
 been any appreciable injury to structure. There have, 
 however, been considerable deposits of smoke and 
 unconsumed^^or imperfectly consumed — coal-dust, and 
 a substantial amount of extra cleaning has been 
 necessary. Some damage to decorative work (paint, 
 paper, etc.) has also been caused, entailing more 
 frequent repairs than would otherwise have been 
 required. I assess the plaintiffs' damages down to the 
 present time at ^^50. 
 
 A more difficult matter is as regards an injunction, 
 for which the plaintiffs press. It was urged by 
 
 87 
 
Mr. Fenton for the defendants that the grievance 
 complained of, or, at any rate, established, is of a mere 
 temporary and occasional character, and that in such 
 cases it is contrary to settled practice to grant an injunc- 
 tion. To my mind, however, the nuisance with which 
 I have to deal does not come within that category. It 
 is true the nuisance is not in active operation every day, 
 or during thewhole day,'but it has recurred so frequently 
 as to be in its essence a continuous nuisance ; and it is 
 one which, unless the Court interfere, is likely to still 
 continue. The defendants' managing director in his 
 evidence stated, in substance, in answer to questions 
 of my own,that,.short of suspending business altogether, 
 it is impossible to materially alter the present state of 
 things ; in other words the defendants propose to so 
 use their premises that plaintiffs will continue to 
 suffer what in my view amounts to a nuisance : and 
 when that is the case it is plain on the authorities that 
 plaintiffs are, prima facie, entitled to be protected by 
 an injunction. It is only necessary to refer to two 
 recent cases, which were cited in argument, Shelfer v. 
 City of London Electric Lighting Co. (1895 1 Ch. 287) and 
 Wood V. Conway Corporation (1914 2 Ch. 47). In the 
 latter case Kennedy I/. J. said " The true rule of law, 
 " I apprehend, is that if any owner of property is so 
 " substantially injured in the reasonable enjoyment 
 " of his property as that he sustains that which is 
 " equivalent to a legal nuisance he is entitled to an 
 " injunction to restrain the continuance of that 
 "nuisance." That is the established rule, on which 
 I must act unless the case can be brought within the 
 exception, the conditions of which are set out in the 
 ' working rule ' stated by A. ly. Smith ly.J. in Shelfer' s 
 Case, and I do not think it can be. Whilst paying due 
 regard to the nature of the locality, and to the fact 
 that it is one where most of the houses and shops are of 
 
 88 
 
the smaller class, I think the injury, though not of the 
 gravest character, is not one which can be regarded as 
 trivial. Neither is it, in my view, a case where the 
 grievance can be adequately dealt with by a present 
 award of damages. It has not ceased, and under 
 existing conditions plaintiffs will suffer an injury quite 
 uncertain in its extent, depending largely on varying 
 conditions as to labour and supplies, which are not 
 within the defendants' control. It may be reduced to 
 comparatively slight proportions, but, on the other 
 hand, it may be such as to deprive plaintiffs to a large 
 extent of the use of their premises. The circumstances 
 being as I have stated, I should in normal times say, 
 without hesitation, that plaintiffs must have an injunc- 
 tion, and my anxiety to avoid interference with defen- 
 dants' business does not justify me in denying plaintiffs 
 their legal rights. I can, however, and I gladly do, 
 follow the course adopted recently in two cases to 
 which my attention was very properly drawn by 
 plaintiffs' counsel — Dexter v. Alder shot U.D.C. (79 
 J.P. [Journal] 4 Dec, 1915, p. 580) before Neville J. 
 and Great Central Railway Co. v. Doncaster R.D.C. 
 (Iv.T. [Journal] lONov.,1917 p. 27) before Astbury J.— 
 and suspend the operation of the order. There will be 
 an injunction restraining the defendants, their servants 
 and agents from causing or permitting smoke or coal- 
 dust to issue from their premises situate in Chapel 
 St., Portsmouth, so as to occasion a nuisance to the 
 plaintiffs as owners and occupiers of the Shaftesbury 
 Hall, Kingston Road, Portsmouth. It would not be 
 right to leave the defendants with a free hand for an 
 indefinite period, and as an undertaking such as was 
 required by Astbury J . in the last-mentioned case does 
 not seem practicable here, the injunction will not be 
 suspended for a fixed time, but until further order, 
 liberty to apply being reserved to the plaintiffs. If, 
 
 89 
 
however, such an application be made to me, I may say 
 that, as at present advised, I shall be disposed to 
 continue the suspension for a period of six months 
 after the declaration of peace, unless it be shown that 
 defendants are not doing the best they can in the 
 circumstances, and consistently with carrying on their 
 business, to minimize the nuisance, or that the character 
 of the business has materially changed. 
 
 There will also be judgment for ;;^50 damages 
 and defendants must pay the costs of the action. 
 
 90 
 
PARKER V. WIIvIvIAMS. 
 
 Overhanging Gutters — Liability to keep secure — Nuisance — Applica- 
 tion of Doctrine in Fletcher v. Ry lands. 
 
 The landlord of premises to which eaves-guttering over- 
 hanging adjoining premises was attached let them on terms 
 that he should keep them in repair. The supporting stays, by 
 gradual process of decay, became insecure, and the guttering 
 ultimately fell and did damage to the adjoining premises. Held, 
 that the principle of Fletcher v. Rylands (3 H.L.C. 530) applied, 
 and that the landlord was liable for the damage caused, having 
 failed to take that care which in the circumstances the law 
 imposed ; and alternatively was liable as for a nuisance, 
 arising from eaves-guttering maintained over the adjoining 
 premises and insecurely fixed. Rex v. Peily (1 A. & E. 822) 
 followed. 
 
 JUDGMENT. 
 
 In this case the plaintiff is the owner of the house 
 No. 546 Commercial Road, Portsmouth, and he sues 
 the defendant, who is the owner of the adjoining house, 
 No. 548, to recover Al. for damages to his greenhouse, 
 alleged to have been caused by the fall of some rain- 
 water guttering on April 1, 1917. 
 
 The facts, as I find them, are these : (1) On the 
 morning of the day in question some iron half-round 
 guttering, about four inches in diameter, attached 
 to and used for the defendant's premises, fell on the 
 plaintiff's greenhouse and caused damage, which has 
 or will cost Al. to make good. (2) The guttering was 
 carried on iron brackets, fastened to the woodwork 
 of the defendant's premises by short screws (and in 
 one instance, at any rate, short nails). In course 
 of time the wood had to some extent perished, and the 
 screws and nails had become rusty, with the result 
 that on the day in question the guttering had practi- 
 cally no support. (3) The guttering overhung the 
 plaintiff's premises, and was in such a position that 
 
 91 
 
if it fell it ^yould, in the ordinary course of things, be 
 likely to do damage of the kind complained of. 
 
 On these facts it was contended on behalf of the 
 plaintiff that the defendant maintained on her premises 
 a thing not naturally there, and a source of danger to 
 her neighbours if not kept secure ; that the principle 
 of Fletcher v. Rylands (3 HX-C. 530) applies ; and that 
 the defendant is liable for the damage caused, on the 
 ground that she failed to take that care which in the 
 circumstances the law imposes on her. In my view 
 this contention is sound. It is not necessary to refer 
 to other authorities, but the cases of Fay v. Prentice 
 (1 C.B. 828), and Crowhurst v. Amersham Burial 
 Board (4 Ex. D. 5) also appear to me to support the 
 above contention. 
 
 The plaintiff's case was put alternatively in another 
 way. His solicitor urged that the defendant is liable 
 for damage caused to the plaintiff by a nuisance arising 
 from overhanging water-spouting insecurely fixed, 
 and he relied on Todd v. Flight (9 C.B., N.S., 317), 
 Payne v. Rogers (2 H.B. 350), and Gandy v. Jubber 
 (5 B & S. 78). In this connection I find the following 
 further facts : (4) The defendant let her premises, 
 548 Commercial Road, to Mrs. Nellie Street, four or 
 five years ago, on a monthly tenancy, and for several 
 years down to the date when the damage happened 
 Mrs. Street had been in occupation as the defendant's 
 tenant, on terms {inter alia) of the defendant keeping 
 the premises in repair, her tenant paying her, in addition 
 to the rent, 6s. a month towards the cost of repairs. 
 (5) The facts numbered 2 and 3 above, if not existing 
 at the commencement of Mrs. Street's tenancy, 
 certainly existed long after the time when the defendant 
 was in a position to determine the tenancy if she had 
 been so minded. 
 
 92 
 
•In these circumstances I am of opinion that, 
 on the authority of a line of cases, of which those 
 cited for the plaintiff and Rex v. Pedly (1 A. &_E. 822) 
 are examples, the plaintiff's contention on this point 
 also is well founded. It follows that my judgment is 
 for the plaintiff for the sum of 4/. and the defendant 
 must pay the costs. She being a married woman, the 
 judgment will be in the form settled in Scott v. Morley 
 (20 Q.B.D. 120). 
 
 93 
 
SOUTHSEA BEACH MANSIONS CO., LTD. 
 
 V. 
 
 PARKES AND HARTRY. 
 
 Nuisance — Defective Drains — Damage to adjoining premises — 
 Liability of owner, lessee, or occupying tenant — Application of 
 the Rule in Fletcher v. Ryland?. 
 
 Where injury was caused to the structure of a house adjoining 
 other premises through the percolation of liquid matter from 
 the drains on the latter premises, and damages were claimed 
 on the ground of nuisance, Held that the rule in Fletcher v. 
 Rylands ([1866] 35 I^.J., Ex. 154, 330) applied, though there 
 was no evidence of personal negligence on the part of the owner, 
 lessee, or occupying tenant of the premises where the defect 
 arose, and the drains were constructed for the natural and 
 ordinary use of the premises. Held also, that the person liable 
 for the damage was the lessee or occupying tenant, no liability 
 being incurred by the superior landlord, in the absence of 
 evidence of some act done, or duty omitted, by him causing or 
 authorising the nuisance. Gandy v. Jubber (33 L-J-Q-B. 15) 
 explained. 
 
 JUDGMENT. 
 
 The plaintiffs' house adjoins the premises known 
 as Elibank, and on the latter premises there are 
 branch drains conveying sink and rain water therefrom 
 into a main drain, which passes through the plaintiffs' 
 premises and thence into a public sewer. The main 
 drain serves both houses, and one of the branch drains 
 situate on the Elibank premises receives rain water 
 from both the houses. The drains above-mentioned 
 are formed of earthenware pipes jointed with clay. 
 This method of jointing, though common enough 
 when the houses were built some 40 years ago, is not 
 satisfactory for house drains, and in course of time, 
 from shrinkage of the clay or other causes, the drains 
 in question have become very leaky, with the result 
 that liquid has escaped therefrom into the surrounding 
 ground, ultimately reaching the plaintiffs' house and 
 
 94 
 
causing material damage to it. The damp state of the 
 house brought about a complaint to the plaintiffs by 
 the Sanitary Authority in July, 1917. The defendants 
 asserted that all or some of the leakage arose from 
 drains serving both the houses, but on the evidence 
 this was not established. I find that, if not absolutely 
 the whole, substantially all the leakage in question is 
 from drains situate upon and serving only the EUbank 
 premises, and I assess the damage caused thereby to the 
 plaintiffs' house at 231. 18s. 
 
 The first question which arises is whether the 
 circtunstances I have stated disclose an actionable 
 nuisance. If yes, the next question is whether the 
 defendants, or either of them, are, or is, responsible 
 for it in point of law. On the first point it has been 
 laid down in a number of cases that an action does not 
 lie in respect of damage arising from the natural and 
 ordinary use of premises, unless negligence is proved, 
 and this doctrine has been applied in circumstances 
 somewhat near those present here : See (e.g.) Carstairs 
 V. Taylor (40 ly.J. Ex. 129) ; Ross v. Fedden 
 (41 ly.J. Q.B. 270) ; Blake v. Land and House 
 Corporation (3 T.L-R. 667). It is to be observed, 
 however, that in all these cases different parts of one 
 house were in question and not, as here, two separate 
 houses. I confess I do not find it altogether easy to 
 satisfy myself of the precise extent to which this line 
 of cases must be taken to exclude or modify, as regards 
 constructions required according to present-day notions 
 for the ordinary use of a dwelUng-house, the general 
 principle established by Fletcher v. Ry lands [1866] 
 35 I..J. Ex. 154 ; I..R. 3 H.I.. 330— that if a man puts 
 on his land anything which would not naturally come 
 upon it, and which has in it elements of danger, he is 
 Uable, Avithout personal (or further ?) negUgence, 
 for resulting damage to other property. I am, 
 
 95 
 
however, content to rest my judgment upon that of 
 Denman and Lindley JJ.. \n\Humphnes X^S^ousins 
 (6. LJ. C.P. 438)^ ^w^^&7 '^" cases abdve^were 
 distinguished, and'uie' material facts » f whicl ^ 
 appear to me to b^in substance the same as those 
 with which I have to deal. It was there held that the 
 person responsible for one set of premises must at his 
 peril see that sewage or water from the drains of those 
 premises does not escape on to adjoining premises 
 and there cause damage ; in other words that — ^in the 
 case of separate houses, at any rate — the application 
 of the Fletcher v. Rylands rule was not excluded as 
 regards drains constructed for the natural and ordinary 
 enjoyment of the house. See also Broder v. Saillard 
 (45 I,. J. Ch. 414) ; Hardman v. N.E. Ry. Co. 
 (3 C.P.D. 168) ; Alston v. Grant (3 B- & B. 128). 
 In my view an actionable nusiance is made out. The 
 plaintiffs premises are let, and are in the occupation 
 of their tenant, but as the drain-leakage has caused, 
 and is still causing, damage to structure the plaintiffs 
 are injured in their reversion, and are therefore entitled 
 to maintain the action, although they are not in 
 possession. 
 
 Then as to the parties liable. In "this connection 
 the facts are these : — The Blibank premises are 
 settled property vested in trustees, the defendant, 
 Mrs. Hartry, being tenant for life. The other defen- 
 dant Parkes is her son, and 5 or 6 years ago she let the 
 premises to him, by an oral agreement, at a rent of 
 2^10 a year. This agreement is stiU subsisting, and 
 Parkes occupied Elibank until about March 1917, 
 when he was called up for military service, and arranged 
 with one Webb that the latter should in his absence 
 have the use of the premises and the furniture, pa5dng 
 Mrs. Hartry the ;;^10 a year. Webb is still occup3dng 
 the house and pa3dng the ^^10. It seems to me doubtful 
 
 96 
 
whether, on the true view of this arrangement, a 
 sub-tenancy is created in Webb, or he is a mere guest 
 or caretaker of Parkes. In a letter from the latter 
 dated 20th December, 1917, he says : ' The house 
 would be empty but for some friends who are good 
 enough to try and keep it going so that I shall have a 
 home to come to if I come through the war safely.' 
 I do not, however, think it is necessary for me to decide 
 the point, and without deciding it I assume, in favpur 
 of Parkes, that there is a sub-tenancy. Nothing was 
 said as to repairs, either on the letting to Parkes or on 
 the making of the subsequent arrangement between 
 him and Webb. These appear to me the material 
 facts. Mr. Hiscock, for the plaintiffs, contended that 
 both defendants are Hable to the plaintiffs, and as 
 against Mrs. Hartry he relied on Gandy v. Jubber in 
 the Court of Queen's Bench (33 ly.J., Q.B. 151). 
 That case, however, went to appeal, and though, 
 in the events which happened, judgment was not 
 dehvered, the considered opinion of the Exchequer 
 Chamber was that the judgment below could not be 
 supported (see 9 B. & S. 15). The case of Nelson v 
 Liverpool Brewery (46 ly.J., C.P. 75), to which 
 also Mr. Hiscock drew my attention, is much more 
 in point, but so far from supporting his case it is 
 against him, as far as Mrs. Hartry is concerned, unless 
 she let the premises with the nuisance then existing, 
 a matter with which I deal later on. The defendants' 
 soUcitor contended that the only persons against 
 whom HabiUty could be successfully asserted are the 
 trustees of the settlement, and on behalf of Mrs. 
 Hartry he urged further that, she being by the terms 
 of the settlement unimpeachable for waste, could not 
 be liable. I am against him on both points. As 
 regards the trustees, whose only connection with the 
 premises is that the legal fee simple vests in then^, 
 
 97 
 
I am of opinion that, whatever might be their position 
 if the Sanitary Authority were taking proceedings 
 for abatement of a nuisance, there is no ground for 
 the foundation of a civil action at the suit of persons 
 in the position of the plaintiffs : see Russell v. Shenton 
 (11 LJ. Q.B. 489). And the terms of the 
 settlement, as to waste, etc., merely affect the rights 
 of the tenant for life and remainderman inter se, and 
 have no revelance to the question of liabiUty to third 
 parties for damage caused by a nuisance existing on the 
 premises. The action is brought against a person 
 who has let the premises, and is in receipt of the rents, 
 and her tenant, and the law as regards the HabiHty of 
 parties occupying those relative positions is well 
 settled. Prima facie, the duty is on the tenant in 
 possession of the premises to see that no nuisance 
 exists on them to the damage of third persons — sic 
 utere tuo ut alienum non laedas : see Pretty v. Brickmore 
 (L-R. 8 C.P. 401) ; Humphries v. Cousins {supra at 
 p. 246). In certain circumstances the landlord also 
 is liable, notwithstanding that he has parted with 
 possession. He is Uable {a) if he has let the premises 
 with the nuisance in existence : Nelson v. Liverpool 
 Brewery [supra] ; (&) where the nuisance, though 
 created by the tenant, is the necessary consequence 
 of the method of use and occupation contemplated by 
 the terms of tenancy ; (c) where, knowing that the 
 premises are in such a state and are being so used as 
 to cause a nuisance, he renews the tenancy ; and [d) 
 where he has undertaken, as between himself and his 
 tenant, to do repairs and the nuisance has arisen by 
 reason of his neglect to fulfil that obUgation. The 
 general underlying principle is that an owner not in 
 possession is under no Uability to third persons unless 
 he has by some act done or duty neglected caused or 
 authorised the nuisance. On the facts as I find them, 
 
neither of the cases (b) (c) [d) arises. There remains 
 for consideration case («). First as regards the 
 defendant Hartry : — The perishing of clay joints is a 
 gradual process, and it may be that the drains were 
 leaking at the time of the letting to Parkes, 5 or 6 years 
 ago, but it is for the planitiffs to make this out affirma- 
 tively, and I do not think the evidence justifies a finding 
 in their favour. The burden of proof is on them, and 
 they have failed to satisfy me. Then as to Parkes : — 
 If, on the true view of his arrangement with Webb, 
 the latter is not a tenant, but merely occupies as agent 
 or guest of Parkes, the liability of Parkes is, I think, 
 plain. As I have said, however, I deal with the case 
 on the footing of there being a sub-tenancy in Webb. 
 I am abundantly satisfied from the evidence as to the 
 state of the plaintiffs' premises that the nuisance 
 I have found to exist commenced before Parkes 
 handed over possession to Webb, and in my view 
 Parkes is liable, if not as occupying tenant, on the 
 ground that he let the premises with the nuisance 
 complained of in active operation. If, in the circum- 
 stances, notice to him requiring abatement was necessary 
 before action, it was given by letters dated 25th July 
 and 19th December 1917. I give judgment for the 
 plaintiffs against the defendant Parkes for ^^23 18s., 
 with costs, and I direct that on taxation a qualifying 
 fee for architect be allowed. There will be judgment 
 for the defendant Hartry, but as she contested and 
 failed on the issue of nuisance or no nuisance she is 
 not entitled to full costs. I think justice will be done 
 if one third of this defendant's costs, when taxed, be 
 paid to her by the plaintiffs. As regards the injunction 
 claimed, I think the plaintiffs have established a case 
 for that form of reUef, but in the circumstances, and 
 especially considering the great difficulty in getting 
 repairs done at the present time, the plaintiffs' solicitors 
 
 99 
 
did not press for an injunction. I reserve liberty to 
 apply, and it is to be observed that the damages are 
 only assessed to date. It is to the manifest interest 
 of both defendants to get the necessary remedial work 
 carried out as soon as may be. 
 
 100 
 
SOUTHSEA BEACH MANSIONS CO.. LTD., 
 
 V. PARKES & HARTRY. 
 
 Practice — Application to set aside Jttdgment — Defendant's death abroad 
 before trial — Abatement of Action — Adding Executor as party 
 to support Application for New Trial — Civil Procedure Act, 
 1833, sec. 11. 
 
 Where judgment has been recovered for damages in an 
 action for nuisance against an absent defendant, and it is 
 subsequently discovered that before the trial he had died 
 abroad, so that the action abated, the proper course for the legal 
 personal representative of the deceased defendant to take in 
 order to clear his estate from the claim is not to apply to set 
 aside the judgment, but to get himself added as a party to the 
 action, and then to move for a new trial on the ground of the 
 discovery of material facts not known at the time of the former 
 hearing. AppUcation of the maxim actio personalis moritur cum 
 persona, and of section 11 of the Civil Procedure Act, 1833, 
 considered. 
 
 JUDGMENT. 
 
 This is an application to set aside judgment, and 
 the circumstances are somevs^hat unusual. The action 
 was brought to recover against both defendants 
 damages for a nuisance, and an injunction was also 
 claimed. The grievance complained of was percolation 
 from house drains, to the injury of premises belonging 
 to the pla'ntiffs. The trial took place on 10 April, 
 1918. Difficult questions, both of fact and law arose, 
 and I delivered a considered judgment at a subsequent 
 Island Court. Judgment went against the defendant 
 Parkes for damages. Plaintiffs also made out a right 
 to an injunction, for which I reserved liberty to apply, 
 if it should be found necessary. As against the 
 defendant Hartry the action was dismissed. Some 
 months after judgment was delivered information 
 reached this country that the defendant Parkes had 
 died a prisoner of war in Germany on 4 April, 1918, 
 six days before the trial, and on that ground the 
 
 101 
 
applicant, lyyla Webb, to whom, as sole executrix, 
 probate of his will was granted on 25 October, applies 
 to set aside the judgment. In my view the application 
 is misconceived. It is made pursuant to a notice 
 addressed to the Registrar of the Court, and is intituled 
 in the action, but the applicant is no party to the action, 
 and it appears to me has no locus standi to move in it. 
 Further, the application is for the judgment to be set 
 aside simpliciter, and I have no power to make such an 
 order. The judgment was in all respects regular, it 
 has been duly entered up, and I am functus officio in 
 regard to it. These considerations are sufficient to 
 dispose of the application : it fails, and I dismiss it 
 with costs. 
 
 As, however, the point of substance was discussed 
 before me, I add the following observations for the 
 assistance of the parties, though I confess I should 
 have been glad for the matter to be more fully argued. 
 The defendant being dead, and his assets having 
 become vested in another person, plaintiffs cannot, 
 as matters stand, enforce the judgment ; but its 
 existence plainly hampers the applicant in the adminis- 
 tration of the deceased defendant's estate, and she is 
 entitled, in a regular and proper way, to have the 
 position cleared up. I think the right course is to get 
 herself added as a party to the action, and then, on due 
 notice to the plaintiffs, to move, not to set aside the 
 judgment simpliciter, but for a new trial, on the 
 ground that material facts, the existence of which was 
 not known at the trial, have since been disclosed. 
 Obviously those representing the estate are entitled 
 to have tried the issue whether the death of the defen- 
 dant caused an abatement of the cause of action, and 
 it appears to ine the proper mode of procedure is a new 
 trial. For this purpose it would be right that any 
 needful enlargement of time should be granted. I am, 
 
 102 
 
however, anxious to save the part'es unnecessary 
 costs, and with that object I would point out that, 
 the action being one of tort and not contract, the death 
 of the defendant causes an abatement, unless the 
 common law rule actio personalis moritur cum persona 
 is excluded, and the cause of action saved, by sec. 11 
 of the Civil Procedure Act, 1833, which provides that 
 
 ' An action of trespass or trespass on the case .... may be 
 maintained against the executor .... of any person deceased 
 for any wrong committed by him in his lifetime to another in respect 
 of his property, real or personal, so as such injury shall have been 
 committed within six calendar months before such person's death.* 
 
 The damage here in question was undoubtedly an 
 injury to the plaintiffs' real estate, committed by the 
 defendant in his Ufetime. Was it committed within 
 six calendar months of his death ? Either party 
 is entitled to have that question Utigated, but I think 
 it right to say that my clear impression is that the 
 evidence at the trial went strongly to show that the 
 damage all arose before 4 Oct., 1917, and if that be so 
 the death of the defendant, in my opinion, resulted in 
 an abatement as far as the claim for damages is con- 
 cerned : and there can be no rehef by way of injunction 
 as regards the acts or defaults of a dead man. Beyond 
 dismissing the application before the Court, I am, of 
 course, giving no decision, but either party minded to 
 take a further step in the action will do well to consider 
 the foregoing observations before doing so. 
 
 103 
 
WEKKS V. CHIVERS & SONS. 
 
 Controlled Prices — Supply of Hay by Farmers — Defence of the Realm 
 Regulations 2 E. — Orders of Army Council affecting ' sellers ' 
 and ' producers '■ — Proper Charges. 
 
 Schedule I of the Order in Council of July 17, 1917, fixing 
 the control prices for the supply of hay by a ' producer ' under 
 the Defence of the Realm Regulations 2 E, assuming it extends 
 to cases of sales direct to the consumer, only covers sales in bulk 
 and does not apply to the supply of small quantities delivered 
 as occasion requires, which are to be treated as transactions 
 by ' sellers ', i.e. as retail and not wholesale dealings, and 
 therefore governed by the higher prices allowed by Schedules 
 II and III of the same Orders. 
 
 JUDGMENT. 
 
 This case raises a question under an Order made 
 by the Army Council pursuant to No. 2 E of the 
 Defence of the Realm Regulations, fixing maximum 
 prices for hay. The action is brought to recover a 
 balance of 16^. 3s. lOd. for goods supplied and work 
 done, and there is a set-off and counterclaim of 41. 
 for horse hire. The set-off is not disputed by the 
 plaintiff, and if the charges he claims can lawfully be 
 made by him the defendants offer no objection to them. 
 They, however, contend that the charge of 71. 10s. a 
 ton for 6f tons of hay, supplied by the plaintiff between 
 November, 1917, and March, 1918 (both months 
 inclusive), forming part of the plaintiff's claim, is in 
 excess of the maximum prices authorised by the Order 
 in question. The 16/. 3s. 10^^. in dispute represents 
 the difference between the prices claimed by the 
 plaintiff and asserted by the defendants in respect 
 of the 6| tons. At the hearing the defendants' 
 solicitor drew my attention to two Orders, one dated 
 February 27, 1917, and the other dated July 17, 1917. 
 I observe, however, that the later Order expressly 
 
 104 
 
revokes the previous one, and was in force during 
 the whole period of supply of the 6^ tons in question. 
 
 Before dealing with the terms of the Order, I Avill 
 state the facts, as to which there was no controversy. 
 The plaintiff occupies a farm of about 47 acres at 
 lyongparish, the nearest railway station being about IJ 
 miles away, and he agreed with the defendants, who are 
 contractors in a large way of business, to stable a 
 number of their horses on his farm and supply hay 
 for feeding them. On the farm, some 50 yards distant 
 from the building where the horses were stabled, the 
 plaintiff had some hay ricks, the hay in them having 
 been grown on the farm. At aU material dates the 
 plaintiff held a Hcense to sell the hay in these ricks, 
 issued under the Defence of the Realm Regulations, 
 worded as in the form put in CAndence and marked by 
 me ' B.Iy. 1.' The plaintiff cut hay from the ricks as 
 it was wanted, weighed it, put it on a small lorry, and 
 so conveyed it to the stables where it was consumed by 
 the horses. ^Some of the hay he cut and converted 
 into chaff, and as to this there is no dispute. The 
 question arises with regard to the 6| tons of long hay 
 already mentioned, the whole of which, except one 
 instalment of 10 cwt., was delivered in quantities 
 of 5 cwt. at a time. 
 
 Coming now to the Order of July 17, Sch. I fixes 
 the maximum price a ' producer ' may charge at 
 
 
 I. s. 
 
 d. 
 
 1917. Nov. and Dec. 
 
 5 10 
 
 
 
 1918. Jan. 
 
 5 12 
 
 9 
 
 Feb. 
 
 5 15 
 
 6 
 
 March 
 
 5 18 
 
 3 
 
 such prices to include cost of carting to nearest railway 
 station or an equivalent distance, but not cost of 
 cutting, trussing, and tying or baling. Schs. II. and 
 III. fix the maximum prices a ' seller ' (a word which 
 
 105 
 
takes the place of the expression ' dealer or distributor ' 
 in the previous — revoked — Order of February 27) 
 may charge at 
 
 Pertonwben Per stone of i4lbE. 
 quantity when quantity is 
 exceeds xo cwt. lo cwt. or less. 
 I. S. d. S. d. I. S. d. 
 
 1917. Nov. and Dec. . . 7 10 10 (=8 per ton) 
 
 1918. Jan 7 12 9 11 (=8 13 4 per ton) 
 
 Feb 7 15 6 11 (=8 13 4 per ton) 
 
 Mar 7 18 3 12 (=9 6 8 per ton) 
 
 such prices to include commission and all costs and 
 charges of whatever nature for hay deHvered on to the 
 coi|.sumer or purchaser's premises. 
 
 If, as the plaintiff contends, he is a ' seller ' 
 within the meaning of the Order, the charge of 11. 10s. 
 a ton he has made is in each instance below the au- 
 thorised maximum. Defendants, however, say he is 
 a ' producer ' Taking the words in their literal sense, 
 the plaintiff, like every other farmer, is obviously 
 both. It is no less accurate to describe him as a 
 seller than as a producer, and it seems to me impossible 
 to treat these terms as mutually exclusive. I cannot 
 think the effect or intention of the Order is to confine 
 ' seller ' to middlemen, to the exclusion of farmers or 
 other producers who also happen to be retailers ; 
 for one knows that farmers not infrequently have 
 shops or stores on or off their farms where they retail 
 their produce to consumers direct. One man may 
 occupy the dual capacity, and I think the answer to 
 the question I have to determine depends, not so much 
 on the capacity of the vendor, as on the nature of the 
 particular transaction. In that transaction is he to 
 be regarded merely as a ' producer,' or is he right in 
 claiming to be a ' seller ' ? As I have said, I do not 
 accede to the view that the fact of his being un- 
 doubtedly a ' producer ' necessarily prevents him from 
 being a ' seller ' within the meaning of the Order. 
 
 106 
 
Nor do I feel much pressed in this connection by the 
 mention of commission in Schs. II. and III. of the 
 Order, which the defendants' soUcitor relied on. Even 
 when a middleman is present, it does not at all follow 
 that he is selling on commission. In cases where there 
 is a commission, the maximum price must include it ; 
 and that is all. It is to be observed that, as regards 
 a ' producer,' the maximum prices prescribed by the 
 Order do not, as in the case of a ' seller,' vary according 
 to the quantity of hay dealt with, nor do they include 
 cost of cutting. 
 
 The point is not free from difficulty. For clearness 
 and certainty, the wording of the Order leaves much 
 to be desired, particularly having regard to the class 
 of person who has to regulate his every-day deaUngs 
 by it, and I cannot profess to feel sure that I have 
 succeeded in arriving at the right interpretation of 
 the document : but the conclusion to which I have 
 come is that, assuming in favour of the defendants 
 that Sch. I. extends to cases of sale direct to the 
 consumer, it only contemplates and covers sales in 
 bulk ; and that sales of such small quantities as 5 cwt., 
 cut out as occasion requires by the vendor (whether 
 also the producer or not), and delivered by him into the 
 stables where the purchasers' animals which are to 
 eat it are housed (though situate on the vendor's 
 farm), are intended to be treated as transactions by 
 a ' seller ' — as retail and not wholesale dealings. If 
 this view is wrong, a farmer is precluded from selHng 
 5cwt. of hay except on terms of being obliged to 
 accept a price no higher than he could stipulate for 
 if he were selling an entire rick ; a result so plainly 
 unreasonable and inconvenient that I should arrive 
 at it with great reluctance. It is to be observed that, 
 in the schedules to the sale Ucense before mentioned 
 issued to the plaintiff, no distinction is drawn between 
 
 107 
 
sales by a ' producer ' and sales by a ' seller/ but the 
 maximum prices (though the same as those in the 
 Army Order) vary, according as the hay is or is not 
 delivered by the vendor on to the premises of the 
 person described in Sch. II. of the license as ' consumer ' 
 and in Sch. III. as ' purchaser.' Again, ' cutting ', 
 though mentioned in Sch. I. of the Order, does not 
 appear in Sch. I. of the Ucense. 
 
 For the foregoing reasons the prices charged are, 
 in my opinion, not in excess of those permissible 
 under the terms of the Order, and, after giving credit 
 for the set-off, there will be judgment for the plaintiff 
 for 12/. 3s. 10^., with costs. 
 
 108 
 
COGGAN V. HOBBS. 
 
 Defence of the Realm Regulations — -Sale of Pigs Order, 1918 — Con- 
 travention of the Order by Buyer — Absence of knowledge of the 
 contravention of Order by the Seller or Agent — Illegality of 
 Transaction — Non- Application of doctrine of Particeps Criminis. 
 
 The Defendant, a butcher, employed the plaintiff to procure 
 for him pigs for slaughter, and the plaintiff accordingly bought 
 pigs from an authorised Government buyer, who permitted the 
 pigs to be sent to defendant, without waiting for production 
 of his buyer's permit ; but the defendant had in fact obtained 
 no permit entitling him to purchase the pigs, though this was 
 not known to nor suspected by the plaintiff nor the Government 
 buyer. The defendant repudiated liability for the money paid 
 by plaintiff for the pigs on the ground that the transaction 
 was unlawful. Held that plaintiff being entitled to assume 
 that defendant was in a position to lawfully give the order, the 
 doctrine of particeps criminis did not apply, and that the 
 irregularity (if any) sanctioned by the Government buyer did 
 not disentitle plaintiff to recover. 
 
 JUDGMENT. 
 
 In this Action, remitted from the High Court, 
 the plaintiff seeks to recover money alleged to have 
 been paid by plaintiff at the request of the defendant 
 for balance of the purchase money of 26 pigs, and a 
 further sum for commission earned in respect of such 
 purchase. A formal defence was delivered in the 
 High Court in which aU plaintiff's allegations of fact 
 were put in issue, and the defendant further pleaded 
 that, if, contrary to his contention, he made the 
 request sued on, the same was rendered illegal and 
 void by the Pig (Sales) Order, 27th September, 1918, 
 made by the Food Controller under the Defence of the 
 Realm Regulations, and that the plaintiff could not 
 recover in respect thereof. 
 
 Omitting unnecessary words and exceptions not 
 
 applicable, the material provisions of the Order are :^ 
 
 CI. 1. No person shall on or after 20th October, 1918, slaughter 
 
 any pig unless such pig has within 14 days immediately preceding 
 
 109 
 
the date of slaughter been bought and sold m a market in Great 
 Britain. 
 
 CI. 2. No person shall on or after 6th October, 1918, sell or 
 buy or offer to sell or buy any pig for slaughter unless such pig is 
 at the time of such sale or offer in a market. 
 
 CI. 3. On or after 6th October, 1918, no Uve pig shall be sold 
 in a market for slaughter except only to a person authorised by the 
 Food Controller to buy pigs on his behalf (in the Order called a 
 Government buyer). 
 
 CI. 8 (a) . Any person authorised in that behalf by the Food 
 Controller may give directions as to the sale, allocation or delivery 
 of any pig for slaughter and all persons concerned shall comply with 
 such directions. 
 
 CI. 8 (c). Where the authorised person has, as to a pig in any 
 market, given directions as to the sale, allocation or delivery thereof, 
 such pig shall not be moved from the market except with the per- 
 mission of the authorised person. 
 
 CI. 11 (b). A person shall not move any pigs fit for slaughter 
 from one area (being the district of a-I^ive Stock Commissioner) to 
 any other area without the permission of the Food Controller. 
 
 On the evidence before me, which was conflicting, 
 I find the following facts : — (1) On 8th October 
 defendant, a butcher at Southampton, informed, 
 plaintiff, who is a cattle dealer, that he wanted pigs 
 for slaughter, up to 50 a week, and it was verbally- 
 agreed that plaintiff should try and get him some pigs 
 at the next Sturminster Newton market, fixed for 21st 
 October. (2) On 21st October, Mr. Ingram, an 
 auctioneer at Sturminster, a person duly authorised 
 by the Food Controller for the purposes of sec. 3 and 
 sec. 8 of the above Order, was in charge of the Stur- 
 minster pig market. Sturminster is in area 13 
 (Dorset), and Southampton is in a different Area. 
 (3) Pursuant to the agreement of 8th October, before 
 referred to, plaintiff, at the market on 21st October, 
 requested Ingram to allocate some of the pigs 
 for slaughter then in the market for the defendant, 
 and Ingram accordingly allocated 26 pigs (being the 
 pigs in question) at the authorised price of the day 
 
 110 
 
which for the 26 pigs amounted to ^^261 9s. 9d.j and 
 was paid by the plaintiff to Ingram. (4) Ingram gave 
 plaintiff verbal consent for the sending of the pigs 
 to the defendant at Southampton forthwith, without 
 waiting for production of plaintiff's Buyer's Permit 
 authorising him to receive the pigs, but he made it a 
 condition of his consent that plaintiff should at once 
 send defendant a telegram requesting him to forward 
 the permit to Ingram. Ingram admitted in cross- 
 examination that in strictness it was his duty to require 
 production of the permit for his endorsement. Defen- 
 dant denied receipt of any telegram, but I am satisfied 
 that plaintiff duly compUed with the condition imposed 
 by Ingram. (5) Defendant in fact held no permit 
 authorising him to receive the 26 pigs, but the request 
 and agreement made by him on 8th October led 
 plaintiff to believe that he was in a position to lawfully 
 receive any pigs procured for him pursuant thereto, 
 and I am satisfied that both plaintiff and Ingram on 
 21st October bona fide and on reasonable grounds 
 beHeved such to be the case. (6) The pigs, having 
 been dispatched from Sturminster by the plaintiff, 
 arrived at Southampton on 22nd October, and were 
 that day taken from the railway station to defendant's 
 lairage by his servant. The same evening defendant 
 caused a note to be left at the house of the Deputy 
 Meat Agent informing him of the arrival of the pigs. 
 This note was not preserved and its precise contents 
 were not before me, nor is it necessary to determine 
 why defendant sent it. Plainly there might be 
 several reasons ; but it is fair to say he stated in 
 evidence that he sent it because he knew he was not 
 entitled to receive the pigs and wished to keep within 
 the law. The Deputy Meat Agent reported the 
 matter to his superior officer. Major lyisle, who on the^ 
 23rd inspected the pigs^ at defendant's premises. 
 
 Ill 
 
Defendant was told he could not retain the pigs, but 
 was asked to feed them until the instructions of the 
 lyive Stock Commissioner should have been obtained. 
 This request was complied with, and on the following 
 day, at the instance of the Food Authorities, the pigs 
 were sent by defendant to the railway station, whence 
 they were despatched by direction of the Authorities 
 to other towns. Shortly afterwards defendant sent 
 in to the Food Authorities a bill for the feed of the 
 pigs, but at the trial he had not been paid. (7) At 
 a later date a sum of ^^224 4s. 5d. was repaid by 
 Ingram to the plaintiff, as being the amount received 
 from the ultimate buyer of the pigs, and the first item 
 of the claim (as amended at the hearing) is ^1 5s. 4d., 
 the difference between this sum and the ;£261 9s. 9d. 
 paid by plaintiff to Ingram in the first instance. 
 (8) The £3 5s. claimed for commission was based on 
 2s. 6d. per head, which is the rate usual in the Stur- 
 minster district, and a reasonable one. 
 
 At the close of the evidence for the plaintiff 
 counsel for the defendant submitted that there was no 
 case for hiln to answer, on the ground that if 
 the contract alleged by plaintiff was made it was void 
 for iUegaUty disclosed by the evidence adduced on his 
 behalf. I declined to stop the case and evidence was 
 called for the defendant and the matter fully argued. 
 It was objected for the defendant that Ingram's 
 authority should be in writing and that the only 
 doctmient produced in this connection merely autho- 
 rised him to sell Uve stock in Area 13. The evidence 
 did not disclose the existence of any other document, 
 and I find nothing in the Order requiring the authority 
 of persons in Ingram's position to be in writing. 
 Ingram's evidence satisfied me that he in fact had 
 authority as stated above (second finding) and I 
 overrviled this objection. It was also urged that 
 
 112 
 
directions or permissions given by Ingram under 
 sec. 8 of the Order were not sufficient warrant for the 
 despatch of the pigs to the defendant, but that, 
 Sturminster and Southampton being in different areas, 
 further permission of the Food Controller was required 
 under Sec. 11 (6), and that the duty of obtaining it 
 rested on the plaintiff. I think plaintiff's counsel 
 is right in his contention that this sub. sec. is confined 
 to removals not dealt with by sec. 8, and that the 
 directions and permissions given by Ingram under 
 Sec. 8 (which admittedly were not infringed) cover the 
 whole ground in this case ; but if the contrary view 
 is the correct one and a further permission under sec. 
 11 (b) was necessary, and assuming also that it was 
 plaintiff's duty, and not defendant's, to obtain it, 
 Ingram stated that he was authorised to give, and gave, 
 such permission, and I accept his evidence. Obviously 
 the Food Controller must act in such matters by agents. 
 In my opinion the defence based on illegality 
 wholly fails. In its inception the contract was un- 
 exceptionable. Plaintiff was entitled to assume that 
 defendant was in a position to give the order he gave. 
 Its lawfulness depended on a state of facts as to which 
 defendant had full knowledge and plaintiff none, 
 and there was nothing to arouse suspicion or cast on 
 plaintiff any duty to cross-examine defendant as to 
 what permits he had obtained. As far as plaintiff 
 is concerned, the position remained the same down to 
 21st October, when, acting on the mandate he had 
 received, he requested the Government buyer to 
 allocate pigs for slaughter to the defendant. On that 
 request being made and complied with, plaintiff had 
 completely incurred the liabiUty in respect of which 
 he is claiming reUef , and it seems to me what happened 
 afterwards is immaterial. But it is said that . the 
 subsequent despatch of the pigs to defendant without 
 
 113 
 
production of his permit was an unlawful act to which 
 plaintiff was a party, and that he is thereby disabled 
 from maintaining the action. Brightman v. Tate, 
 [1919] 1 K.B. 470, was reUed on, but is clearly dis- 
 tinguishable . The offence there set up was the carrying 
 out of building work without the Ucence required by 
 the Defence of the Realm Regulations, and the learned 
 judge found that the builders (whose claim for payment 
 failed) knew the necessary licence had not been 
 obtained and knowingly took part in an unlawful 
 transaction. I do not accede to the view that in acting 
 as he did Ingram was exceeding his powers ; there was 
 no intention of evading the Order, and reasonable 
 steps were taken to secure production of the permit be- 
 fore the time when the pigs would come to defendant's 
 hands. For these Emergency Orders to work at all, 
 some discretion must of necessity be given to the 
 responsible executive officers, and I am not disposed 
 to put so narrow an interpretation on the Order under 
 consideration as would oblige me to hold that the course 
 Ingram thought it right to take in carrying out his 
 duty on the market day in question constituted an 
 unlawful act procured or participated in by the 
 plaintiff. The point of substance aimed at by the 
 Order is the obtainment of the prescribed permits, 
 rather than their production at a particular time and 
 place, and if defendant had been in possession of the 
 permits and had posted them on the evenitig of the 
 market day, as directed by the Government buyer, 
 I think an assertion of breach of the Order, whether 
 in criminal or civil proceedings, would have been 
 hopeless. 
 
 It was objected by plaintiff's counsel that the 
 poirit raised as to the despatch of the pigs without 
 previous production of defendant's permit is a statutory 
 defence, and, not being pleaded, cannot be raised. I 
 
 ni 
 
have not dealt with the case on that footing, but if 
 there should be an appeal the point will, of course, 
 be open to the plaintiff. After the evidence on both 
 sides had been concluded, defendant's counsel applied 
 for leave to amend the defence (or give notice of special 
 defence) if necessary, but I did not think it right in 
 the circumstances to allow such an amendment at 
 that stage, and refused the application. 
 
 To my mind, the whole trouble was brought 
 about by • defendant giving, and allowing to remain 
 open, an order he was not in a position lawfully to give, 
 and the defence he sets up is, in effect, an assertion of 
 his own wrong-doing. Even if — contrary to my 
 view — ^plaintiff is to be regarded as taking part in an 
 act forbidden by the Order, he did so in a belief, 
 induced by defendant, that it was a lawful act ; and 
 that being so, the doctrine of particefs criminis does not 
 avail the defendant. (See Burrows v." Cecil Rhodes 
 and Others, [1899] 1 Q.B. 818, and the cases there 
 referred to.) The observations of the learned judge 
 in Brightman's Case {sitpra), so far from assisting the 
 defendant here, go strongly to support an adverse 
 view. His lordship said : ' If the plaintiff had bona 
 fide beUeved that licenses had been granted by the 
 Ministiry of Munitions to the full extent [necessary] 
 I should have entertained a grave doubt as to the 
 validity of the defendant's plea of Uegality. Still 
 graver would have been the doubt if such a belief had 
 been induced by the words or conduct of the defendant. 
 . . . . Where the illegaHty depends, for example, 
 on the particular purpose to which a defendant may 
 put goods supplied by a plaintiff, the plaintiff may 
 recover unless he was made aware of the illegal purpose 
 in the mind of the defendant. (See Pearce v. Brooks, 
 L.R. 1 Ex. 213). If, moreover, a contract can be 
 performed in either a legal or an illegal manner, then 
 
 115 
 
the plaintiff can recover unless he knew that the 
 defendant intended the performance of the bargain 
 in an illegal way. (See Waugh v. Morris, I,.R. 8 
 Q.B. 202).' 
 
 There will be judgment for the plaintiff for 
 ;^40 10s. 4d. with costs, and, regarding the case as 
 of general importance, I accede to plaintiff's applica- 
 tion that the costs be taxed on Scale C. If the defen- 
 dant wishes to appeal he can have a stay of execution 
 OD the usual terms. 
 
 Note. — ^Appeal dismissed bj- Bankes, Atkin and Younger, LJJ. 
 sitting as a Divisional Court. 
 
 116 
 
WII.KINS V. BI^ESSLKY. 
 
 Landlord and Tenant — Raising of Rent — Increase of Rent, etc. (War 
 Restrictions) Act 1915 — Application of the Act — Definition of 
 ' Rateable Value ' — Effect of Courts [Emergency Powers) Act 
 1917. 
 
 Where the ' Standard Rent ' of premises exceeded the limit 
 fixed for the application of the Increase of Rent, etc. (War 
 Restrictions) Act, 1915, but the ' Rateable Value ' as set out 
 in the valuation list was below that limit, and the tenant had 
 agreed to an increase of the rent and payment of a premium 
 as a condition of a new tenancy, Hei<d, in an action by the 
 landlord for the increased rent, the tenant counter-claiming 
 for a return of a premium and increased rent paid by him, 
 that the meaning of ' Rateable Value ' in the Act of 1915 
 must be taken to be the same as in the IvOcal Government Act, 
 1894 (sec. 75), viz., ' The Rateable Value stated in the Valuation 
 lyist in force ' and that the premises were therefore within the 
 limit provided for by the Increase of Rent, etc. (War Restric- 
 tions) Act, 1915, with the result that the provisions of that Act 
 and the Courts (Emergency Powers) Act, 1917, applied, and the 
 tenant was entitled to succeed. 
 
 JUDGMENT. 
 
 This case, on which I am told many others stand 
 or fall, raises a point under the Increase of Rent and 
 Mortgage Interest (War Restrictions) Act, 1915. I 
 understand that, whatever my view of the matter may 
 be, it is desired to obtain a decision of the High Court, 
 and for that reason, and that alone, I am delivering 
 a written judgment. The planitiff, as landlord, sues 
 the defendant, as tenant, of a dwelling-house and 
 premises known as 30 Coventry Road, Southampton, 
 for £\0 10s., being three months' rent alleged to have 
 accrued due on April 1, 1918. The defendant has 
 given notice of special defence arising under the Act 
 above mentioned and the Courts (Emergency Powers) 
 Act, 1917, and of, a set-off and counter-claim for the 
 sum of £\ 1 3s. 5d. No material facts are in dispute. 
 
 117 
 
It was admitted or proved at the trial {a) that on and 
 before August 3, 1914, the premises were let at a rent 
 of ;^3 2s. lOd. per calendar month (^37 14s. a year), 
 the landlord paying the rates ordinarily borne by 
 tenants, amounting to £8 18s. 3d. a year ; (b) that 
 in November, 1917, the premises were let by the 
 plaintiff to the defendant at a rent of £3 10s. per 
 calendar month, and a premium of £5, the plaintiff 
 paying rates as before ; and (c) that in the valuation 
 list in force on August 3, 1914, the gross estimated 
 rental of the premises is stated at ;£27 and the rateable 
 value at ^£22. 
 
 The whole matter turns on the construction of 
 two sub-sections of section 2 of the Act of 1915. 
 Section 2 (2) provides that the Act shall apply to a house 
 where either the amount of the standard rent or the 
 rateable value does not exceed (in the case of a house 
 situate elsewhere than in lyonddn or Scotland) ^^26. 
 In sub-sec. 1 of the same section " standard rent " 
 is defined (leaving out unnecessary words) as " the 
 rent at which the house was let on August 3, 1914," 
 and " rateable value " as " the rateable value on 
 [that date], or in the case of a house first assessed 
 after that date the rateable value at which it was 
 first assessed." The defendant admitted that unless 
 the Act of 1915 applies the rent claimed became 
 due. He also admitted that the " standard rent " 
 exceeded ;£26 a year, but contended that the " rateable 
 value " was less than ;£26, and relied on the Valuation 
 List as establishing his contention. On that footing 
 the defendant claimed that he had, down to January 
 1, 1918, paid 7s. 2d. in excess of the standard rent, in 
 addition to the £5 premium above referred to, and he 
 pleaded a set-off and counter-claim in respect of those 
 sums, reljdng, as regards the premium, on Sec. 1 (2) of 
 the Act of 1915 and, as regards the excess rent, on Sec. 
 
 113 
 
5 of the Courts (Emergency Powers) Act, 1917. It 
 was admitted by the plaintiff that if the premises 
 are within the Act of 1915 the defendant is entitled 
 to credit for the sums of 7s. 2d. and ^^5. It was 
 further admitted that, in any event, the defendant's 
 claim for a sum of ^^5 6s. 3d. paid by him for income 
 tax is well founded. 
 
 It was contended on behalf of the plaintiff that 
 the " rateable value " mentioned in the Act does not 
 mean the sum so described in the Valuation I,ist, but 
 the " annual value " of the premises, which, it is said, 
 is to be ascertained, either by taking the ".gross esti- 
 mated rental " stated in the Valuation List, or by 
 deducting from the rent received from the tenant 
 certain outgoings paid by the landlord — a proqess 
 which, it was asserted, would result in this case in 
 a figure exceeding £26. In support of this contention 
 it was urged that the rateable value appearing in the 
 Valuation lyist, being arrived at by deductions (for 
 repairs, etc.) from the rent, must always be less than 
 the rent, and that therefore if the Act, when referring 
 to rateable value, had in contemplation the sum so 
 appearing it would have been unnecessary to mention 
 " rent " at all. In my opinion this line of reasoning 
 fails. Premises may at a given date stand at a rent 
 bearing little or no relation to the market value on 
 which the assessments for rating purposes are based. 
 They may, e.s;., be held on a lease of long standing, 
 since the grant whereof the market value has increased, 
 and with it the rateable value. Or, again, a sudden 
 decrease in the demand may, since the making of the 
 current assessment, have led to a letting at a rent below 
 the figures appearing in that assessment. The Acts 
 in question are for the benefit of tenants of small 
 houses, whom Parliament has discovered are more 
 hardly hit by the war, or more entitled to sympathy, 
 
 11^ 
 
than occupants of higher-rented houses, and they 
 provide for relief in either of two cases — ^if the rent or 
 the rateable value at the outbreak of war was not more 
 than £2Q. The tenant can take as the basis whichever 
 happens to be the lower. 
 
 No question arises here as to the first alternative 
 — rent. Then what is the " rateable value .... 
 assessed" referred to in the Act ? The contention 
 that the gross sum stated in the Valuation List is 
 meant involves a contradiction in terms, and if the 
 plaintiff's alternative suggestion is right the figure 
 can only be arrived at by a process of calculation, and 
 one which the tenant could not always make easily or 
 with certainty ; and no effect is given to the word 
 " assessed." I think the Legislature, deaUng with 
 these small houses, had nothing of that kind in view, 
 and that all the tenant has to do in order to know 
 whether he is entitled to the .benefits of the Act (on 
 the ground of low rateable value) is to look at the 
 rate demands of the local authority, or at the current 
 rate book. Rateable value, in my opinion, means the 
 sum so described in the valuation list — the sum on 
 which rates are charged and have to be paid, ascer- 
 tainable by a tenant with certainty and without 
 difficulty, in the way I have suggested. There is no 
 definition of " rateable value " in the Act now in 
 question, but in the Local Government Act (1894) 
 it is defined (s. 75) as " the rateable value stated in 
 the valuation hst in force." That seems to me the 
 natural and plain meaning of the expression, and I 
 will not be the first Judge (as far as I am aware) to 
 spell out of the Act of 1915 the different, and, in my 
 view, highly inconvenient, meaning contended for 
 by the plaintiff. 
 
 If I am right on the point of construction, the 
 statute applies in this case, and the position is this : — 
 
 120 
 
Plaintiff is entitled to ^^9 8s. 6d., being rent for the 
 three months for which he claims, calculated at the 
 standard rate of ^3 2s. lOd. a month, and defendant 
 establishes a set-off and counter-claim for the larger 
 sum of ;£11 3s. 5d., made up of the items of 7s. 2d., 
 ;^5 and ;^5 16s. 3d. mentioned above. There will be 
 judgment for the defendant on the claim, and on the 
 counter-claim for the balance of ;£1 14s. lid., and he 
 will have the costs of the action and counter-claim 
 to be taxed. The soHcitors for the parties stated that 
 the point raised affects a large number of persons in 
 the Southampton district, and, being in the nature of 
 a test case, is of general interest, and each of them 
 asked that a certificate should be given under sec. 119 
 of the County Courts Act for costs on Scale C ; also 
 for leave to appeal. For these reasons, and not 
 because I entertain any doubt on the point, I grant a 
 certificate for taxation on Scale C and give leave 
 to appeal. 
 
 121 
 
HULL V. BATT. 
 
 Landlord and Tenant — Attornment as Tenant by wife of Mortgagor 
 [abroad on Army Service) — Leave of Court to enforce Security — 
 Sale by Mortgagees — Right to acquire possession for Purchaser — 
 Increase of Rent, etc. [War Restrictions) Act, 1915, sec. 1 [3]— 
 Exercise of Discretion — ' Satisfactory Ground ' for Order. 
 
 The interest on a Mortgage of a dwelling house to which the 
 Increase of Rent, etc.. Act, 1915, applies having got over seven 
 years in arrear, the mortgagees obtained leave of the Court to 
 enforce their security. The Mortgagor being about to go 
 abroad on military service, the mortgagees, instead of at once 
 selling the house, let it to the mortgagor's wife (defendant) on 
 terms that, in the event of sale, she would give up possession 
 to the purchaser. A year later the mortgagees sold the house, 
 and the defendant having failed to give possession at the date 
 required by the sale contract they sued her for possession. 
 Held that there was ' satisfactory ground ' for the order sought 
 within the meaning of Sec. 1 (3) of the Increase of Rent, etc.. 
 Act, 1915, and that in the circumstances the discretion given 
 by that sub-sec. ought to be exercised. Stovin v. Farebrass 
 distinguished. 
 
 JUDGMENT. 
 
 The plaintiffs, as executors of T. H. Hulls, 
 deceased, commenced this action against the 
 defendants, a husband and wife, to recover possession, 
 with mesne profits, of a dwelUng house known as 
 Corse House, ShankHn, I.W., and a separate building 
 in the same grounds called the Surgery. Before trial 
 the action was discontinued as against the husband 
 and proceeded against the wife alone. An objection 
 to the jurisdiction on the ground of excess value was 
 raised by defendant's soUcitor at the hearing, but the 
 evidence satisfied me that neither the value of the 
 hereditaments the subject matter of the action, nor 
 the rent payable in respect of them, exceeds £100 a 
 year, and I overruled the objection. The premises 
 were bought by the defendant's husband (hereinafter 
 
 122 
 
called ' the mortgagor ') in 1907, and he resided in 
 them, practising as a veterinary surgeon, until he 
 joined the army in August, 1914. On April 9, 1907, he 
 executed a mortgage in fee of these premises (together 
 with others) to the planitiffs' testator. The interest 
 fell into arrear, none being paid after September 29, 
 1909, and on January 18, 1918; an order of the High 
 Court was obtained by the plaintiffs against the 
 mortgagor, directing that any remedies to which they 
 were entitled in respect of the mortgaged premises 
 shotild not be deferred under the provisions of the 
 Courts (Emergency Powers) Act. In acknowledging 
 the notice of application for that order, the mortgagor 
 wrote to the plaintiffs (January 14), stating that he 
 was quite willing they should let or sell the property 
 and would give up possession when required. Ten 
 days later he left England on foreign service and did 
 not return to this country again until July, 1919. 
 
 Having obtained the order above referred to, 
 plaintiffs, though desirous of reaHsing their security, 
 did not immediately take steps to do so, but let the 
 house to the defendant (the mortgagor's wife) for ^25 
 a year, on the terms of an agreement dated April 27, 
 1918. The tenancy commenced at Lady Day, 1918, 
 and the agre^^ent provided (cl. 8) that either party 
 might ' on or after March 25, 1919, give three calendar 
 months ' previous notice to determine the tenancy, 
 such notice to expire on any of the usual quarter days 
 (except Christmas).' It was further provided that 
 ' in case the landlord shall sell the premises during the 
 tenancy, the tenant shall give up possession thereof 
 to the purchaser within three calnedar months after 
 notice requiring her so to do shall have been left at 
 the said premises addressed to her.' By an agreement 
 made by correspondence in October, 1918, the plaintiffs 
 let the surgery to the defendant, from September 27, 
 
 123 
 
1918, at a rent of Is. a week, subject to one calendar 
 month's notice to quit at any time. The rents payable 
 in respect of the house and surgery have been paid to 
 June 24, 1919. On March 22, 1919, the plaintiffs 
 wrote to the defendant informing her that a sale 
 would probably be effected shortly, and giving her 
 notice to quit and deUver up possession of the house 
 and premises on June 24, 1919. On April 9, 1919, 
 plaintiffs entered into a contract of sale of all the 
 property included in their mortgage, it being provided 
 that completion should take place on June 24, 1919, 
 and that vacant possession should be given on comple- 
 tion. This contract is still subsisting. The defendant 
 having retained possession after Midsummer day, 
 trouble arose between plaintiffs and the purchaser, 
 by whose solicitor serious complaints, accompanied 
 by a threat of litigation, were made in a letter of July 
 3. I/Ctters between plaintiffs and defendant and her 
 husband, dated from August 1 to October 10, 1919, 
 were put in evidence, but they contain little, if any- 
 thing, material to the points with which I have to deal. 
 
 It was contended by defendant's soUcitor that the 
 notice of March 22 is not effective as a notice-to-quit 
 because given before March 25, and is inoperative 
 under the second branch of Clause 8 of the tenancy 
 agreement because, when given, there had been no 
 actual sale. I am against the contention on both 
 points. Clause 8 is not artistically worded, but I 
 think the meaning and legal effect are fairly plain, viz., 
 that the tenancy may be determined on June 24, 
 
 1919, or any later quarter day (not being Christmas), 
 provided a previous three calendar months' notice 
 be given. If, contrary to my view, plaintiffs have to 
 rely on the second branch of the clause, there was a 
 sale during the tenancy {i.e., before June 24, 1919) ; 
 and the notice having been given more than three 
 
 124 
 
months before the day when possession was demanded 
 it is, in my opinion, immaterial whether at its date 
 a sale had taken place or not. 
 
 The point which gives me difficulty is the defence 
 based on the Increase of Rent, etc.. Acts. The 
 plaintiffs invite me to say that there is a ' satisfactory 
 ground ' for making the order sought within the 
 meaning of sub-section (3) of section 1 of the Act of 
 1915, and, unaided by authority, I should have thought 
 the case was just one of the class which the Legisla- 
 ture — recognising the impossibiUty of cataloguing all 
 cases — ^intended to leave to the unfettered discretion 
 of the Court ; and if I have a discretion I should 
 without hesitation exercise it in favour of the plaintiffs, 
 in view of the circumstances (1) that not until interest 
 was many years in arrear did plaintiffs make any 
 move under their mortgage ; (2) that over a year and 
 a half ago the defaulting mortgagor expressed his 
 willingness for a sale, and an order authorising sale 
 was obtained ; (3) that, instead of acting on the order 
 hastily or inconsiderately, plaintiffs allowed the 
 mortgagor's wife to become tenant on easy terms 
 (as he acknowledged with gratitude in his letter of 
 August 1, 1919) ; (4) that the wife expressly undertook 
 (as her husband had previously done) to give up 
 possession in the event of a sale ; and (5) that plaintiffs, 
 having at last effected a sale, are placed in a position 
 of serious difficulty vis a vis their piurchaser by the 
 defendant's refusal to give up possession. 
 
 It was, however, contended for defendant that 
 the case of Stovin v. Farebrass, which recently came 
 before the Court of Appeal (Law Journal, August 
 30, 1919), shows that I have in the circumstances no 
 discretion, and is a complete answer to the claim. 
 I reserved judgment in order to obtain a full report 
 and read Stovin v. Farebrass again. It undoubtedly 
 
 125 
 
shows that, in ordinary cases at any rate, a landlord's 
 desire to enable a purchaser to occupy the house is not 
 in itself a ground on which the Court can act. But 
 is it an authortiy for the propostion that an order 
 can never be made if one object, and, the effect, of it 
 are to enable a person not included in the three excepted 
 classes to occupy the house ? Does it go the length 
 of deciding that a mortgagee landlord, whose interest 
 is greatly in arrear, whose security may be depreciating, 
 and who has obtained the leave of the Court to enforce 
 his security, cannot be given possession of a house 
 forming part of the mortgaged premises for the purpose 
 of the most (or only) advantageous method of reaUsa- 
 tion, viz., a sale with vacant possession ? It is my 
 plain duty to follow the decision as I understand it, 
 confining myself in considering it to the judgment of 
 the majority of the Court, but I do not think the case 
 goes the length, contended for. Possession will only 
 in very exceptional circumstances be sought unless 
 occupation by someone is desired, but in this connection 
 defendant's solicitor presses me with a passage in the 
 judgment of Bahkes, ly.J., which it is said supports 
 the view that the general power is hmited to cases 
 where it is intended to pull down the house. And 
 again Atkin, ly.J., says the tenant may not be dis- 
 possessed for the purpose of completing a bona fide 
 sale, at all events where it is not proved that the 
 purchaser requires the house for occupation. These 
 are observations of great weight, and having regard 
 to them I cannot profess to feel sure that the view 
 I am about to express is right. But I think it is 
 necessary to bear in mind the facts of the particular 
 case, and the conclusion to which, though not without 
 hesitation, I have come is that the learned Lords 
 Justices did not intend their observations to be of 
 universal application. The sale there in question 
 
 126 
 
was an ordinary sale by an absolute owner, simply 
 desirous of marketing his property at the best price 
 obtainable. Here I have the case of a sale by mortga- 
 gees, who merely wish to realise their security, and who, 
 in the nature of things, cannot make a profit, but can 
 at the best only get their money back. 
 
 I do not think Stovin's case excludes the exercise 
 of my discretion in such a case as this — a discretion 
 which, if it exist, must, of course, be exercised with due 
 regard to all the circumstances. The purchaser is 
 no party to the action, and there was no evidence of 
 the purpose for which he wants the house ; but for 
 the reasons I have endeavoured to express I am of 
 opinion that it is not necessary for the plaintiffs here 
 to have recourse to the provisions of the Act of 1919. 
 There will be judgment for possession and for mesne 
 profits at the rate of 271. 12s. a year as from June 24, 
 1919, with costs. Defendant has already had a good 
 deal of time to make other arrangements, but, having 
 regard to the husband's comparatively recent return 
 from foreign service, the warrant can rerhain in the 
 office for one month more from to-day, conditionally 
 on defendant paying forthwith the mesne profits 
 calculated to the end of such month, and the costs 
 forthwith upon taxation. The plaintiffs to have 
 liberty to apply. 
 
 Since the foregoing judgment was written, my 
 attention has been drawn to the case of Green-Price v. 
 Webb, tried before Lush, J., and reported in the Law 
 Journal of October 25, 1919, and I think it supports 
 the view I have taken that Stovin v. Farebrass does 
 not go the length contended for by the defendant 
 and is not fatal to the plaintiffs' claim. 
 
 127 
 
BEST V. PAICB. 
 
 Master and Servant — Seduction from Service — Farm Labourer — 
 Acceptance of Service under Food Control Department — Omission 
 to give Notice — Breach of Contract — Damages. 
 
 Where a skilled farm labourer, employed in thatching ricks 
 and trained for motor tractor driving, was approached by a 
 local officer of the Food Control Department and induced by 
 the offer of higher wages to transfer his services to the Depart- 
 ment,without notice to his former employer, and at a time when 
 his services were urgently required for thatching on the farm, 
 HeIvD that a breach of the labourer's contract of service with 
 his employer having been directly induced by the action of 
 the local officer of the Department, the employer was entitled 
 to recover damages as for the ' seduction ' of his servant, in 
 respect of the loss sustained by the failure to get the thatching 
 completed through the sudden withdrawal of the labourer's 
 services 
 
 JUDGMENT. 
 
 This action is a somewhat unusual one. The 
 plaintiff, who owns and occupies a large farm near 
 Winchester, sues the defendant, a local officer of the 
 Food Control Department of the Board of Agriculture, 
 to recover damages alleged to have been sustained by 
 the ' seduction ' of plaintiff's servant, one Spreadbtiry. 
 But though the action is not a very common one 
 I think the law affecting it is well settled. 
 
 Spreadbury is a skilled farm labourer, one of the 
 men, of whom there are nowadays not too many, 
 able to build ricks and thatch them. At the time of 
 the matters complained of he had been for nearly two 
 years in plaintiff's regular employment, except when 
 on occasions he had for a few days, with plaintiff's con- 
 sent, done work for a neighbouring farmer, and except 
 for the period I am about to mention. When motor 
 tractors came into use plaintiff had Spreadbury 
 taught to drive them. After he had driven one some 
 time for the plaintiff, he and plaintiff's tractor were, 
 
 128 
 
by arrangement with the plaintiff, placed last Spring 
 at the disposal of the Food Control Department, under 
 whose orders Spreadbury acted between April and 
 June 1917. At the latter date he returned to the 
 plaintiff and continued in his service until October, 
 his relations with the Department having entirely 
 ceased. He was sometimes employed on piece work, 
 and sometimes at 5s. per day on day work, and was, 
 as he had always been, paid each Saturday. It was 
 contended for defendant that Spreadbury was a mere 
 casual labourer, free to leave, and liable to be dismissed, 
 without any notice ; I do not so find. In my opinion 
 he was in October 1917 in plaintiff's service on terms 
 which required notice from one party or the other 
 to terminate the employment — probably a week's 
 notice ending some Saturday night, but at the least 
 a reasonable notice. On October 3, and again on 
 October 8, the defendant approached Spreadbury, 
 asked him to work for the Food Control Department 
 as a motor tractor driver, and offered him a standing 
 wage of 30s. a week, with the addition of Is. ' acreage 
 money,' which would amount to anj^hing up to an 
 additional 20s.. a week, according to the quantity of 
 work done. At this time it was part of defendant's 
 duty to obtain drivers — a matter, no doubt, of public 
 importance — ^but even a Government official must 
 have regard to other people's rights and may not 
 carry out his duties in such a way as to inflict on a 
 third person a legal wrong. The defendant, though 
 he saw the plaintiff at the time "he first spoke to 
 Spreadbury (October 3), said nothing at all to him as 
 to his purpose in asking to see the man, and in answer 
 to a question by me he said frankly that, as regards 
 men who (like Spreadbury) had previously driven 
 for the Department, he regarded the question of whom 
 they were working for, and the terms of their employ- 
 
 129 
 
ment, as no concern of his. The course he adopted 
 does not commend itself to me, and I hope will not 
 to the Department, nor indeed on further reflection to 
 the defendant himself. To go on to a farm and 
 invite a man to leave his employment there, without so 
 much as making an enquiry of the employer or having 
 any kind of communication with him is, I think, a strong 
 order — a course likely to lead to trouble and loss. 
 Spreadbury accepted the offer made to him by defen- 
 dant, and, without any notice whatever to the plaintiff, 
 left his service on the night of Monday, October 8, 
 and put himself under defendant's orders on the 
 following day. In doing so, he, in my view, committed 
 a breach of his contract of service, and the breach 
 was directly induced by the defendant. To my mind 
 all the elements necessary to support the action of 
 seduction were present in this case. 
 
 As regards damages, I am satisfied that the corn 
 in two of plaintiff's oat ricks was materially damaged 
 owing to the sudden and unexpected loss of the services 
 of Spreadbury, whom the plaintiff promptly endea- 
 voured to replace but could not. It is no light thing 
 for a farmer to be deprived of his only expert thatcher 
 during harvest, or just at its close. It was pointed 
 out by defendant's solicitor that in the correspondence 
 plaintiff offered to accept ^^5 in settlement, but this 
 offer was in terms made to avoid Htigation, and I am 
 not disposed to press it unduly against the plaintiff. 
 The whole of the damage to corn and straw which 
 was deposed to was not due to delay in thatching, 
 but I am satisfied that £S by no means covers the 
 damage so arising. I think the justice of the case 
 will be met by an award of ^25, and I give judgment 
 for the plaintiff for that sum with costs. 
 
 Note. — ^A stay of execution was applied for and granted on 
 the usual terms, but there was no appeal. 
 
 130 
 
CHIPP V. REES. 
 
 Master and Servant — Contract not to engage in Competing Business — 
 Restraint of Trade — Damages or Injunction. 
 
 In a contract of service containing a clause (limited as to time 
 and area) prohibiting the servant from engaging after the 
 termination of the service in a competing business, the provision 
 for payment of a simi of money on breach of the servant's 
 undertaking is not necessarily fatal to reUef by way of injunc- 
 tion. If on the true construction of the contract the stipulation 
 for a money payment is intended, not as the agreed price for 
 liberty to engage in competition, but for better securing the 
 undertaking to abstain from it, the master, in the event of 
 breach, is entitled to an injunction in lieu of damages. 
 
 JUDGMENT. 
 
 In this action the plaintiff, a dairyman, sues 
 the defendant, formerly in his employ as a milk 
 carrier, claiming an injunction to restrain breach 
 of a provision contained in the contract of service, 
 or in the alternative damages. The contract was 
 dated 2 March, 1907, and by it the defendant agreed 
 that he would not vdthin 24 calendar months after 
 quitting or being discharged from the plaintiff's service 
 be concerned in the business of a milkman, milk 
 seller or milk carrier within 2 miles from the plaintiff's 
 premises in Buckingham Place, Portsmouth. It was 
 also provided "as a further security for the due 
 observance and performance of the agreement " that 
 if vnthin such 24 months the defendant should be so 
 concerned he should pay the plaintiff " the sum of 
 ;^10 that the defendant shall act contrary to this 
 agreement (sic) every such sum or sums to be con- 
 sidered as Uquidated damages." The defendant's 
 employment was terminated by his own act on 29 
 June, 1918. 
 
 Judgment was reserved on one point only. I 
 intimated at the trial that, in my view, the stipulation 
 in question, being limited as regards both time and 
 
 131 
 
area, gave no more than reasonable. protection to the 
 plaintiff and was unobjectionable in point of law 
 and binding on the defendant, who I was abundantly 
 satisfied was carrying on a competing business contrary 
 to the terms of the agreement. The only question 
 left open was as to the form of remedy. Plaintiff 
 seeks an injunction, but it was submitted by defendant's 
 solicitor that, having regard to the wording of the agree- 
 ment, all plaintiff can recover is ^^10 by way of damages. 
 The governing principle is nowhere more clearly 
 stated than in I^ord Halsbury's "Laws of England," 
 in the passage to which Mr. Purkis drew my attention, 
 at pp. 236-237 of Vol. XVII. It is a question of the 
 intention of the parties, to be ascertained of course 
 from the words they have used. If, on the true 
 construction of the agreement, provision is made for 
 payment of money by way of agreed price for hberty 
 to do the act initially forbidden, the only remedy, 
 if the act be done, is recovery of the agreed sum. If, 
 however, the payment is stipulated for in order better 
 to secure abstention from the forbidden act or conduct, 
 the remedy by injunction is available for the master ; 
 and where, as here, the quantum of damage which 
 will arise from a breach of the agreement is uncertain, 
 the leaning of the courts has favoured the latter 
 construction rather than the other. The wording 
 of the agreement in the present case is not clear — ^is, 
 indeed, not sensible English ; words appear to have 
 been omitted, and if damages were sought there 
 might be room for two views as to the sum recoverable. 
 But whatever may be the right construction of the 
 document in this connection I am clearly of opinion, 
 after looking at the authorities, that the view that the 
 parties intended to fix a price, on payment whereof the 
 defendant should be freed from his undertaking not to 
 be concerned in a competitive business, is untenable. 
 
 132 
 
As illustrating the principle on which the courts 
 have acted, it is sufficient to refer to two or three cases 
 only. In National Provinical Bank of England v. 
 Marshall (40 CD. 112) the servant gave a Bond for 
 securing payment of ^^1000 if, within a certain time 
 and area, he should accept employment from another 
 Bank. Having done so, he was willing to pay the 
 ;^1000, but the plaintiffs pressed for an injunction, 
 and the court, being of opinion that the main purpose 
 of the Bond was to prevent the conduct complained 
 of, held that the plaintiffs were entitled, at their 
 option, to recover damages or an injunction, and an 
 injunction was ordered. General Accident Corporation 
 V. Noel (1902 1 K.B. 377) is to the same effect ; as too 
 is London & Yorkshire Bank v. Pritt (56 ly.J. Ch. 987). 
 See also Howard v. Woodward (34 ly.J., Ch., 47) and the 
 Irish case of French v. Macale (2 Dr. & W. 269) . 
 
 Plaintiff seeks an injunction and he is entitled 
 to it. There will be an order restraining the defendant 
 until the 29th June, 1920 from commencing, carrjdng 
 on or being concerned in any way whatsoever, either 
 as a master or servant, in the trade or business of a 
 cow keeper, milkman, milk seller or milk carrier 
 within a distance of 2 miles from 2 Buckingham Place, 
 Portsmouth. The defendant must pay the costs, 
 to be taxed on Scale C. 
 
 133 
 
KNIGHT V. MAYOR ETC., OF PORTSMOUTH. 
 
 Master and Servant — Deductions from Wages — The Truck Act, 1831 
 [\&2 Will. IV. ch. 37), sec. 19— The Truck Act Amendment 
 Act 1887 (50 6-51 Vic. ch. 46), sec. 2— The Truck Act 1896 
 (596-60 Vic. ch. 44), sees. 1-3— The Employers and Workmen 
 Act, 1875 (38 6-39 Vic. ch. 90), sec. 10— Application of Acts to 
 Conductors of Tramcars. 
 
 A tramway conductress, whose main duty is to solicit passen- 
 gers, collect fares and signal the driver, is not a ' workman ' 
 within the meaning of sec. 10 of the Employers and Workmen 
 Act 1875 (38&39 Vic. ch. 90), and does not therefore come 
 within the scope of the Truck Acts. Morgan v. London General 
 Omnibus Co. [1884] 53 L.J. Q.B. 352 applied. 
 
 JUDGMENT. 
 In this case a sum of 16s. lid. and, I am told, 
 a question of principle under the Truck Acts are 
 involved. The 16s. lid. will hardly carry the case 
 to the House of Uords, but I understand the principle 
 may. The plaintiff brings the action to recover 
 the above sum, alleged to have been wrongfully 
 deducted by the defendants from wages due to her as 
 a conductress employed by them on the Corporation 
 tramways. The facts are not in dispute and, so far 
 as is material, are as follows : — Plaintiff entered the 
 service of the defendants in 1917 on the terms of an 
 application for employment signed by her, one such 
 term being ' the applicant will hold her situation 
 subject to full compliance with the Rules and Regula- 
 tions, or any subsequent alterations or additions 
 thereto, or any orders which may be issued from 
 time to time.' A book of ' Rules and Regulations 
 for the officers and servants of the Portsmouth Corpora- 
 tion Tramways ' was, pursuant to the contract of 
 employment, supplied to the plaintiff, and the following 
 are extracts from it : — 
 
 (5) Wages will accrue from day to day, but be paid once a week 
 only. 
 
 134 
 
(79) Conductors shall be held responsible for the safety and 
 care of the . . . tickets . . . and other articles under their charge. 
 
 (85) Conductors before leaving the office shall see that they are 
 supplied with way-bills and sufficient tickets for the day and that 
 the quantity of tickets and register of punch agree with the number 
 signed for, knowing that after taking them over they will be held 
 responsible for any deficiencies. . . . Before leaving the 
 terminus each conductor shall prepare his way-bill and provide 
 himself with sufficient tickets for the journey. 
 
 (87) Conductors are responsible for the face value of all tickets 
 received by them. All bundles not in use shall be kept locked up 
 in the ticket box and placed in the locker of the car. 
 
 (88) The number of tickets used, the punch register and the cash 
 received and handed in at the office by the conductor shall balance, 
 and in case of any discrepancy the conductor will be called upon to 
 make up the shortage. 
 
 (97) At the end of each day's work . . . the conductor shall 
 deliver his punch to the . authorised official and hand over 
 all money, tickets and other effects belonging to the Department 
 which may be in his possession, together with the working way-bill 
 and cash way-bill. 
 
 The plaintiff's way-bill for May 14, 1919, was 
 put in evidence. It shows the number of tickets 
 supplied to her on that day, and' on the back of it is 
 printed : — 'Instructions to Conductors. The conduc- 
 tor must examine his ticket box and see that the 
 contents agree with the way-bill before leaving the 
 office, otherwise any mistakes will not be recognised. 
 He is held responsible for every ticket issued to him 
 and any not returned will be charged as if sold.' 
 The way-bill fails to account for certain of the tickets 
 supplied to plaintiff as stated therein, and shortly 
 after May 14 she made a written report to the general 
 manager in the following terms : — ' I beg to report 
 that on the 14th inst. on returning my box it was 
 brought to my notice on the 15th inst. that 200 penny 
 cash tickets were missing. I had not sold them, so 
 therefore cannot account for my loss. I may state 
 here that on the 14th I had a learner on my car, and 
 
 135 
 
although I do not wish to cast any slur on him I may 
 add that I have been working on the cars for over two 
 years and it is the first time that I have had any loss 
 of tickets. Trusting that you will take this into your 
 kindly consideration.' It is agreed between the parties 
 that, in addition to the 200 tickets mentioned in her 
 report, plaintiff, during the week ended Saturday, May 
 17, was (on balance) a few further tickets ' short ' and 
 that the face value shortage during the week amounted 
 in all to 16s. lid., the sum deducted from plaintiffs 
 wages and now sued for. 
 
 These being the facts, I pass to consideration of 
 the statutes. The Truck Act of 1831 prohibited 
 payment otherwise than in coin of the wages of ' artifi- 
 cers ' employed in certain occupations specified in 
 sec. 19, the term ' artificers ' being declared to extend 
 to all persons in any manner engaged in any of such 
 occupations. Sec. 19 was repealed by the Truck Act, 
 1887, which, by sec. 2, provided that the principal 
 Act should extend to, apply to and include any 
 ' workman' as defined by the Employers and Workmen 
 Act, 1875, and that ' artificer ' in the principal Act 
 should be construed as including every workman to 
 whom that Act was extended and applied by the 
 Act of 1887. ' Workman ' is defined in sec. 10 of the 
 Employers and Workmen Act, 1875, as ' any person 
 . . . . being a labourer . . . artificer, handi- 
 craftsman ... or otherwise engaged in manual 
 labour.' Then came the Truck Act of 1896 (which is 
 to be read with the Acts of 1831 and 1887), on which 
 the action is mainly based. With certain exceptions in 
 each case, and subject to certain prescribed condtions, 
 Sec. 1 prohibits deductions from sums contracted to 
 be paid to any workman in respect of any fine ; Sec. 2 
 prohibits deductions from the like stuns in respect of 
 bad or negligent work or injury to the materials or 
 
 136 
 
other property of the employer ; Sec. 3 prohibits any 
 contract for deduction from a sum payable to a work- 
 man in respect of the use or supply of materials, tools 
 or machines, etc. 
 
 It was contended by Mr. Trapnell for the plaintiff 
 that the deduction here in question is hit and rendered 
 invalid by one or other of the above three sections, and 
 that defendants have no further or other right (if any) 
 against the plaintiff than to recover damages for 
 breach of contract, which it is suggested must, in the 
 absence of evidence of actual loss, be merely nominal. 
 Unless it is precluded by the Act of 1896, I am of 
 opinion that the deduction complained of was one 
 which, by the terms of the contract of employment, 
 defendants were entitled to make. The face value of 
 the tickets received by plaintiff, and not accounted 
 for, constituted a liquidated demand — a debt — and 
 defendants were entitled to retain it out of the moneys 
 of plaintiff in their hands. 
 
 On the question as to the effect of the statute, the 
 first point falling to be determined is whether plaintiff 
 is a ' workman ' within the definition contained in Sec. 
 10 of the Employers and Workmen Act, 1875. In 
 Morgan v. London General Omnibus Co., which went 
 to the Court of Appeal (13 Q.B.D. 832), it was held, 
 affirming the Court below, that an omnibus conductor 
 engaged at daily wages is not a person to whom the 
 Act of 1875 appUes. In Cook v. North Metropolitan 
 Tramways Co. (18 Q.B.D. 683), an attempt was made 
 to distinguish the case of the driver of a horse-drawn 
 tramcar, but the County Court judge held that the 
 case was covered by the decision in Morgan v. L. G. 0. 
 Co. {supra), and the Divisional Court upheld his 
 decision. Both these cases were referred to in the 
 judgment in Hunt v. Great Northern Ry. Co. (1891, 1 
 
 137 
 
Q.B. 601) — a Truck Act case — where the same view 
 was taken as regards a goods guard. In Smith v. 
 Associated Omnibus Co. (1907, 1 K.B. 916)_the servant 
 concerned was the driver of a motor omnibus, and on 
 the facts with regard to his duties the Court, dis- 
 tinguishing Cook's case {supra.), held that the driver 
 was a person engaged in manual labour within the 
 meaning of the Act of 1875 ; but this case does not 
 help the plaintiff here, and on the author ties it is to 
 my mind plain that she must go to a much higher 
 Court than this if the view for which she contends 
 is to prevail. There is no evidence that her duties 
 differed in any material respect from those of the 
 omnibus conductor in Morgan v. L. G. 0. Co. (supra) , 
 and on that decision of the Court of Appeal I hold 
 that plaintiff does not come within the scope of the 
 Truck Acts. The reasoning of Brett, M.R., is directly 
 in point. The plaintiff's real and substantial business 
 is not to do manual labour, but to soUcit passengers, 
 collect the fares and signal the driver. If, as I see was 
 suggested by Pollock, B., in Hunt v. G. N. R. Co. 
 {supra) , the question is one of fact in each case, I find 
 without hesitation that plaintiff is not a person en- 
 gaged in manual labour, and so is not a workman 
 within the meaning of the statutes on which she reUes. 
 Taking that view, it is unnecessary for me to 
 consider further the wording of sees. 1 to 3 of the Act 
 of 1896, nor was the matter fully argued ; but I may 
 say in passing that it seems to me a somewhat bold, 
 if not violent, treatment of language might be required 
 to bring this case within either of the classes dealt 
 with by those sections. I dismiss the action with 
 costs, and as I am told it is in the nature of a test case, 
 supported by plaintiff's Trade Union, and both 
 counsel having applied that the costs of the successful 
 party should be taxed on the higher scale, and that 
 
 138 
 
leave to appeal should be granted, I direct taxation 
 on Scale C (item 86 being allowed) , on the ground that 
 the question at issue is of importance to a class of 
 persons, and is of general or public interest. There 
 will be leave to appeal. 
 
 139 
 
BROMIvEY V. FBAR & WAI.KKR. 
 
 Sale of Land — Deposit paid to Agents—Whether Stakeholders or 
 Vendor's Agents — Failure of Sale through Vendor's default — • 
 Remuneration of Agents — Damages or quantum meruit. 
 
 JUDGMENT. 
 
 This action, which was remitted for trial to the 
 Hampshire County Court by a Master's order of the 
 27th March, 1917, was commenced in the High Court 
 on the 25th October, 1916. By it the plaintiff seeks 
 to recover a sum of £\QiO paid to the defendants by or 
 on behalf or Mrs. Francis Grendon on 14th June, 1916, 
 which he alleges was paid to the defendants as his 
 agents, and was at the commencement of the action 
 held by them to his use. Another action has been 
 brought by Mrs. Grendon, and is pending in the 
 High Court, wherein she claims a return of the money 
 in question as against both the plaintiff and defendants 
 in the action before me, and it is obvious that the 
 litigation has assumed a highly inconvenient shape, 
 for a decision on the issue raised before me will not 
 determine the ultimate rights as to the ^100. Further, 
 it might happen that, on the evidence before me, I 
 should come to the conclusion that plaintiff is entitled 
 to recover the money against the defendants, and the 
 High Court hold later on, upon other materials, that 
 Mrs. Grendon is also entitled to recover it from them. 
 Counsel, however, told me, in answer to an enquiry 
 I made, that an application by the defendants for 
 relief by way of interpleader before the action was 
 remitted for the High Court was refused, and I am 
 asked by both parties to decide the issues in the case. 
 It has come before me for trial in ordinary course, 
 and I must do so. 
 
 After the action had been remitted, the defendants, 
 by notice dated 13th April, 1917, raised a counter- 
 
 140 
 
claim, by which they seek to recover ^85 16s. 9d. for 
 commission, fees, and expenses, which they allege 
 plaintiff agreed to pay them in connection with the 
 transactions between him and Mrs. Grendon, in the 
 course of which the ;^100 was paid, and in the alterna- 
 tive they claim the sum upon a quantum meruit for 
 services rendered and expenses incurred at the plain- 
 tiff's request. 
 
 As regards the claim in the action, the facts as 
 I find them are these : The plaintiff in the year 1914 
 became assignee of a lease for 21 years from Michaelmas, 
 1907, granted by H. W. Sandford to F. K. Gasgoyne, 
 of a farm, known as Standen Farm, at Ockley in Surrey, 
 the lease containing a covenant on the part of the 
 lessee and his successors in interest not to assign the 
 premises without the previous written consent of the 
 lessor. Plaintiff having occupied the farm until May, 
 1915, was then minded to dispose of his interest, and 
 communicated by letter with the defendants, a firm 
 of auctioneers at Winchester, with a view to them 
 finding him a purchaser. Defendants shortly after- 
 wards introduced the property to Mrs. Grendon, who 
 inspected it with her agents. During 1915 there was 
 a good deal of correspondence between plaintiff, 
 defendants, and this lady, but no business resulted 
 until the following year, when at the plaintiff's request, 
 or, at any rate, with his knowledge and consent, 
 defendants resumed negotiations with Mrs. Grendon 
 and her agents. From an early period, one term of 
 the proposed contract of sale was that a deposit should 
 be paid by the purchaser on the signing of the contract, 
 to be returned to her in the event of plaintiff not 
 obtaining his landlord's consent to an assignment of 
 the lease. Plaintiff was informed of this proposed 
 term by defendants at least as early as 4pril, 1916 
 (see their letters of 25th April and 1st May), and 
 
 HI 
 
assented to it. Defendants prepared a sale contract 
 and submitted it to Mrs. Grendon's agent, who, after 
 considerable discussion of the terms, sent it to defen- 
 dants, signed by Mrs. Grendon, on 1st June. The 
 contract provided, in substance, for the purchase of 
 plaintiff's interest in the farm as from Michaelmas, 
 1916, at a price to be fixed by a valuation, with the 
 addition of ;£100 for improvements. Clause 3 was in 
 the following terms : " The purchaser agrees to pay to 
 the vendor's agents, Messrs. Edwin Fear and Walker, 
 on the signing of the agreement, the sum of ^100 as a 
 deposit and in part payment of the valuation, and to 
 pay the balance of the valuation on the 29th of Septem- 
 ber, 1916." There was this additional provision : 
 " It is further agreed between the parties hereto that 
 this agreement is made subject to the consent of the 
 lessor to the assignment of the said lease to the pur- 
 chaser, that the assignment of the lease is to be carried 
 out by the vendor's solicitors, and that any legal or 
 other costs in connection therewith or in obtaining 
 the lessor's consent to the assignment shall be borne 
 and paid for in equal moieties by the vendor and 
 purchaser, but that should the lessor refuse his consent 
 to the assignment of the lease to the purchaser then 
 this agreement shall become null and void, and the 
 vendor shall repay to the purchaser the amount of the 
 deposit received, less the sum of two guineas as being 
 the cost of this agreement." 
 
 Although the contract in the form in which it 
 was signed by Mrs. Grendon was assented to by the 
 plaintiff long previously, he did not himself sign 'it 
 until about the 27th August. I cannot resist the 
 conclusion that all through the period between the 
 beginning of June and the end of August plaintiff 
 was behaving in a most unbusinesslike and unreasonable 
 way. The purchaser's agent was naturally pressing 
 
 142 
 
defendants for plaintiff's signature, and defendants, 
 in turn, repeatedly asked plaintiff for it, but he made 
 first one idle excuse and then another for withholding 
 his signature, endeavouring to get the purchaser 
 bound, and her deposit paid, whilst he himself remained 
 free to close with her or throw her over as might best 
 suit him. In fact, he played fast and loose with the 
 purchaser and with his own agents. The impression 
 made on my mind in this connection by a perusal of 
 the correspondence was by no means removed by 
 plaintiff's evidence in the witness box. Whilst still 
 withholding his signature to the contract, he made 
 more than one attempt to obtain the deposit, with the 
 avowed object of making use of the money. Whether 
 they were right in point of law or not, defendants told 
 him early in July that the money was in their hands 
 as stake-holders, that they had given a personal 
 undertaking to the purchaser in regard to it, and 
 could not hand it over to him ; and they again pressed 
 for his signature to the contract. Neither at this time 
 nor until long afterwards did plaintiff dissent from the 
 view that defendants were stake-holders. The first 
 suggestion to the contrary which I find was thrown 
 out by his solicitors in a letter of 17th October, 1916, 
 written when they knew the sale was likely to go off 
 and that litigation between vendor and purchaser 
 was probable. The deposit was not in fact paid when 
 the purchaser signed the contract on 1st June. It 
 was sent to the defendants with a letter from the 
 purchaser's agent dated 13th June, and in exchange 
 for it the defendants, pursuant to a previous arrange- 
 ment in that behalf, gave a personal undertaking^ to 
 return the money in certaio events. This undertaking 
 is contained in a letter of 14th June, and a receipt 
 enclosed with it. The receipt, and the material 
 parts of the letter, are in the following terms : " We 
 
 143 
 
are obliged by your letter with enclosure as stated, and 
 for your cheque we send you formal receipt, with 
 a personal undertaking to return the money to you 
 in full should the landlord withhold his consent, 
 which, however, we have no reason to suppose." 
 Receipt : " Received of Mrs. Grendon, per cheque of 
 W. Pollard, Esq., the sum of ^100, being a deposit in 
 connection with Standen, Ockley, to be returned in 
 full if the landlord will not agree to the transfer." 
 If it is material, my view is that defendants had 
 authority, expressed or implied, from plaintiff to give 
 this undertaking, and that it bound him as well as 
 themselves. 
 
 At the time the deposit was paid, plaintiff, as I 
 have already said, was withholding his signature 
 to the sale contract, and it was quite uncertain whether 
 he would ever consider it to his interest to sign it; and, 
 on the facts as I find them I think defendants' position 
 as regards the deposit is governed by what took 
 place at the time they received it, and that as against 
 them, at any rate, plaintiff is not entitled to rely on 
 the terms of the sale contract (which he prevented 
 being an effective instrument until a subsequent date) 
 and to set up the case that that document alone is to 
 be regarded, and that according to its terms, properly 
 construed, the deposit must be taken to have been 
 received by the defendants simply as his agents. In 
 this connection plaintiff's counsel relied on the observa- 
 tions of Bowen, ly. J., in Ellis v. Goulton (1893, 1 Q. B. 
 at page 352), but I think, so far from making out his 
 case, these observations are adverse to it. He also 
 reUed strongly on a statement made in cross-examin- 
 ation by Mr. I^ush, a member of the defendants' firm, 
 who said " I suppose we received the deposit on the 
 terms of Clause 3 of the sale contract, and so hold it." 
 I attach very little importance to this answer, regarding 
 
 144 
 
it merely as the witness's view on a point of law, 
 which it is for me to determine. 
 
 Having come to the conclusion that defendants 
 did not originally receive the deposit in the capacity 
 which plaintiff asserts, the next question is whether 
 any event had happened at the date when the action 
 was commenced which entitled plaintiff to say that 
 the money had become his and defendants bound to 
 hand it over to him. Had defendants become free from 
 the obligation which, in the circumstances already 
 mentioned, they had come under vis a vis the purchaser 
 when they received the money ? I will assume 
 (but I by no means decide) that, as was contended 
 by the plaintiff, the sole point to consider in this 
 connection was what took place with regard to the 
 landlord's consent to the proposed assignment. How 
 does that matter stand ? During the two months or 
 so in which plaintiff was being pressed to exchange 
 his signature for the signature obtained from the 
 purchaser, it became clear that he had not got his 
 landlord's consent. On 8th July, the landlord's agents 
 wrote plaintiff imposing a ntunber of conditions to 
 be complied with, including one in connection with a 
 matter of road maintenance, which was of considerable 
 moment to the purchaser, although the plaintiff had 
 not seen fit to make any mention of it to his own 
 or her agents down to the time when her signature 
 was obtained and her deposit paid. On 2nd August, 
 the landlord's agents wrote plaintiff again, insisting 
 that arrears of his. rent (of substantial amount) must 
 be paid before the landlord's consent would be given, 
 and again pressing the road matter. On 10th August, 
 the purchaser personally wrote the defendants, referring 
 to the diffictilties she had then learned existed as to 
 the landlord's consent, and pointedly expressing her 
 reliance on the deposit remaining in their hands. 
 
 145 
 
On 1st September the landlord's agents wrote defen- 
 dants that the arrears of rent must be paid by plaintiff, 
 before the consent would be given, and they repeated 
 this in a further letter of 6th September. On 12th 
 September plaintiff's solicitors wrote defendants, 
 informing them that the landlord had taken up the 
 position that he would not consent to the assignment 
 unless an arrangement (which was to bind the 
 purchaser) was come to about the roads, and requesting 
 defendants to negotiate as to that Avith the purchaser; 
 and in further letters of 14th and 20th September they 
 made it plain that it was doubtful if plaintiff could or 
 would obtain the consent at all. Negotiations followed 
 between plaintiff and his landlord about the road 
 matter, but, though the purchaser was taking over 
 the farm as from 29th September, it appears from a 
 letter from plaintiff's solicitors of 2nd October that 
 as late as that date the consent to assignment had not 
 been obtained. A member of the firm of solicitors 
 acting for the landlord gave evidence and produced 
 a consent signed by the landlord. This document 
 is undated, and the witness could give no further 
 information than that it was signed some time between 
 June and November, 1916 ; and November is after 
 the date of the writ. On 17th October plaintiff's 
 solicitors wrote the defendants that there was a 
 probability of the sale going off altogether and of 
 litigation with the purchaser. This letter contains 
 the first suggession that defendants, are holding the 
 deposit merely as plaintiff's agents, and their views 
 of the situation are invited. It is to my mind not a 
 letter calculated to lead defendants to think they 
 could properly or safely hand over the money. Two 
 days before the issue of the writ defendants pointed 
 out to plaintiff's solicitors that they were not even 
 told definitely. whether the sale was going through or 
 
 146 
 
not. A few days after the writ was issued defendants 
 wrote the purchaser's agent asking for information, 
 and received a reply to the effect that he had no 
 information to give them, but thought it unUkely the 
 purchaser would be willing to release the deposit 
 to the plaintiff. Four days later the purchaser's 
 solicitors wrote defendants, complaining that plaintiff 
 was trying to get the deposit into his own hands, and 
 expressing their cUent's distrust of him. This was 
 followed by a further letter of 16th November, 
 informing defendants that the purchaser had declared 
 an avoidance of the sale contract, and demanding from 
 them a return of the deposit. On 21st November the 
 purchaser commenced the pending High Court action 
 against the present plaintiff and defendants, claiming 
 intey alia the return of the deposit. Whatever the 
 precise course and result of the negotiations between 
 plaintiff and his landlord may have been, I am unable 
 to find (and it rests on the plaintiff to satisfy me) 
 that at any time before the present action was com- 
 menced plaintiff had furnished defendants with any 
 information which was reasonably sufficient to show 
 them that the undoubted and grave difficulties with 
 regard to obtaining the landlord's consent had been 
 removed. Plaintiff's solicitor said in the course of his 
 evidence that he did not think he ever told defendants 
 before action that the licence had been prepared, and 
 it is clear from the evidence of the landlord's solicitor 
 that a signed licence was never at any time in the 
 possession of plaintiff or his solicitors. He did not 
 pay the arrears of his rent until more than six months 
 after action. In my opinion defendants could not 
 with safety or reasonable prudence have handed 
 over the deposit at the date of writ or any earlier date. 
 I cannot, of course, foresee what may be decided in 
 the High Court action as to the ultimate right to the 
 
 147 
 
deposit, but in my view, and I must act upon it, the 
 present action was, at any rate, premature. * 
 
 Just before they were sued, defendants were told 
 by plaintiff's solicitors that litigation with the pur- 
 chaser was likely; and that litigation promptly ensued. 
 It will settle the ultimate right to the deposit, and in 
 my opinion defendants were entitled to await the 
 result of it. No suggestion has been made as regards 
 their solvency, and plaintiff's desire to get the deposit 
 into his own hands does not commend itself to me. It 
 seems to me that when the interpleader summons 
 was dismissed all proceedings might well, upon proper 
 terms, have been stayed until after the trial of the 
 purchaser's action. 
 
 With regard to the counter-claim, I find the 
 following facts. Some of them have been stated 
 above in connection with the plaintiff's claim, but it is 
 convenient to deal with them as a whole here : (1 ) The 
 defendants were employed by the plaintiff to find 
 a purchaser of his interest in the farm upon the terms 
 stated in a scale of charges handed by them to him, 
 a copy whereof I have marked B. v. F. 1. (2) The 
 defendants introduced the property to Mrs. Grendon 
 and procured from her in June, 1916, {a) the execution 
 of a binding contract of purchase of plaintiff's interest 
 at a price to be fixed by valuation, with an additional 
 sum for improvements, and [b) the payment of ;^100 
 deposit. The plaintiff had previously assented to the 
 terms of this contract, but did not sign it until about 
 27th August ; the document bears date lOth July. 
 (3) The sale contract was subject to the consent of 
 plaintiff's landlord to the assignment of the lease, 
 and it was the duty of plaintiff to apply for and make 
 
 * Action tried at Guildford Assizes. The plaintiff here failed 
 there also, Mrs. Grendon establishing her right to the deposit. 
 
 148 
 
all reasonable efforts to procure the consent. (4) The 
 sale was to take effect as at 29th September, 1916, and 
 at that date the landlord's consent or licence had not 
 even been drafted. Various conditions to its grant 
 had from time to time been imposed by the landlord's 
 agents and solicitors, and at least one of them was 
 insisted on throughout, viz., that the plaintiff should 
 pay the arrears of his rent, which were of considerable 
 amount. The arrears were not paid until May, 1917, 
 and at Michaelmas, 1916, plaintiff was not in a position 
 to complete the sale. Apart from the matter of a 
 hcence to assign, one of the plaintiff's title deeds was 
 missing when it was wanted, and it was not forthcoming 
 until the middle of October. (5) The sale contract 
 and the agreement' between plaintiff and defendants 
 provided that defendants should act as plantiff's 
 valuers, and on 4th October plaintiff's representative 
 and the purchaser's valuer attended at the farm to 
 make the valuation. There had previously been 
 friction between plaintiff and the purchaser, owing, as 
 I find, to plaintiff's defaults, but on 4th October 
 the purchaser was able and wilUng to complete the 
 purchase, as plaintiff knew. Plaintiff, however, would 
 not allow the valuation to take place, and the valuer's 
 journey was wasted. Various excuses for his refusal 
 were put forward by plaintiff and on his behalf, but 
 in my view they were not well founded. The real 
 reason was that at this time plaintiff was either 
 unable or unwilling (or both) to carry out his contract. 
 He was in communication with another prospective 
 purchaser, with whom he hoped to deal to better 
 advantage. (6) On 17th October plaintiff's solicitors 
 informed defendants that the sale contract was likely 
 to fall through, and * that litigation between vendor 
 and purchaser was probable, and definitely told them 
 that no valuation was to take place. By a letter of 
 
 149 
 
the following date, the purchaser's solicitors repu- 
 diated the contract, on the alleged ground of plaintiff's 
 default in performing it, and on 21st November, 1916, 
 she commenced an action, which I am told is now 
 nearing trial in the High Court, claiming the return 
 of the deposit and damages on that footing. I regret 
 the necessity of deaUng with an issue raised also in 
 the High Court action, but whatever may be there 
 decided I think I am bound to form and express my 
 own view, which is that the sale went off solely because 
 of plaintiff's default. Plaintiff's Counsel admitted 
 that if that is so defendants are entitled to remuneration 
 in some form or other, but he contended that there 
 was no such default, and that in the circumstances 
 nothing whatever is payable to defendants except, 
 perhaps, some out-of-pocket expenses. 
 
 Those appear to me to be the material facts, and 
 if I am right as to the facts, how does the question of 
 defendants' remuneration stand in point of law ? 
 They were at considerable trouble in the matter, 
 conducted negotiations and a lengthy correspondence 
 extending over more than twelve months, and found 
 a ready and willing purchaser, who at their instance, 
 signed a binding contract and paid a substantial 
 deposit. With one exception, about to be mentioned, 
 they had rendered the whole of the services they were 
 employed to render. They had not actually niade 
 the valuation, but they had attended at the farm on 
 4th October prepared to make it, giving up the neces- 
 sary day for the purpose. If the valuation had been 
 made, they would have been entitled under their 
 agreement with the plaintiff to receive commission 
 according to the scale of charges already referred to. 
 Having in substance done all they were employed 
 to do, and the sale having gone off solely by reason 
 of plaintiff's default, it is plain on the authorities 
 
 150 
 
that defendants are entitled, either as on a quantum 
 meruit or by way of damages, to the remuneration they 
 would have earned but for their employer's default. 
 This is well established by cases of which Prickett v. 
 Badger (1 C.B. N.S. 265), Fisher v. Druett (39 L.T. 
 253), and Harris v. Petherick (reported in the same 
 volume at page 543) are examples. Damages are not 
 in terms claimed in the particulars of counterclaim, 
 but the case was fully argued, and, if necessary, I 
 should think it right to amend the particulars by 
 adding a claim for damages in the alternative. 
 
 It is not altogether easy to fix the amount of the 
 commissions, depending, as in great measure they do, 
 upon the sum the valuers would have found due. I 
 must estimate it as best I can, and on the materials 
 before me I fix the amount at ;£56 5s. I find the 
 inspection charged for in the second item of the counter- 
 claim was agreed to be paid for as alleged by defendants, 
 and they are entitled to those two guineas, and also to 
 ;^8 16s. 9d. for out-of-pocket expenses, making a 
 total sum due on the counter-claim of ;£67 3s. 9d. 
 The other items claimed are, in my opinion, covered 
 by the commission. In the result the action fails, and 
 I dismiss it. On the counter-claim I give judgment 
 for the defendants (in the action) for ^^67 3s. 9d. 
 The plaintiff must pay the costs of the action and of 
 the counter-claim. 
 
 151 
 
HII.L V. PAGE. 
 
 Sale of Land — Agency — Commission — Effective Cause of Sale — What 
 Agent must establish. 
 
 JUDGMENT. 
 
 In this case the plaintiff, an auctioneer and 
 surveyor, sues the defendant, who is a solicitor, to 
 recover ;^100 commission on the sale of the shop 
 premises. No. 98 Above Bar, Southampton, to a firm 
 trading as Price Bros. There is no dispute about 
 amount if plaintiff is entitled to recover anything, 
 but defendant denies any hability. Defendant bought 
 the freehold for ;£3,750 in 1909. In 1914, one Stringer, 
 the then tenant, wished to dispose of his lease and 
 employed the plaintiff to procure a purchaser. Defen- 
 dant introduced Price Bros., to whom Stringer's 
 lease was assigned on 11 January, 1915, and Stringer 
 paid plaintiff a commission. Defendants' Hcense to 
 the assignment was necessary, and in the course of 
 it being obtained he became acquainted with Price 
 Bros. Having acquired the leasehold interest. Price 
 Bros, were minded to make alterations in the premises. 
 They employed plaintiff to advise them in the matter 
 and the alterations they eventually made were carried 
 out under his supervision, as their surveyor. Plaintiff 
 at an early stage advised Price Bros, that as they were 
 proposing to spend a substantial sum on the premises 
 they would do well to try and buy the freehold. There 
 was some evidence of communications between plaintiff 
 and defendant on the subject of a purchase before 
 5th March, 1915, but I am satisfied that nothing 
 material (if anything at all) in that connection occurred 
 before the letters I am about to mention. On 5th 
 March, 1915, when the transfer of Stringer's lease to 
 Price Bros, had been arranged, and a few days before 
 it was actually assigned, plaintiff wrote to the defen- 
 
 152 
 
dant stating that he had been persuading Price Bros, 
 to buy the freehold, though it was doubtful if they 
 would be able to find the capital, and asking defendant 
 to let him know the lowest price he would accept and 
 how much of the purchase money he would allow to 
 remain on mortgage. In this letter he also asked 
 defendant to include in his price a 2^ per cent, com- 
 mission for plaintiff. For many years before that 
 date defendant had been plaintiff's solicitor and they 
 had been, and afterwards continued to be, frequently 
 in communication about various matters of business. 
 Defendant replied to plaintiff's letter on the same date 
 to the effect that he was not anxious to sell, and under 
 any circumstances should not take less than ;£4000. 
 He made no reference whatever to commission. 
 Plaintiff communicated the contents of the letter 
 to Price Bros., and continued to press them to buy 
 the freehold, and defendant knew of this from state- 
 ments made in course of conversation by plaintiff and 
 Price Bros., with both of whom he had interviews 
 from time to time. After consideration, Price Bros, 
 decided to do nothing with regard to a purchase, 
 but shortly after acquiring the leasehold interest, and 
 thence onwards, they carried on negotiations direct 
 with the defendant with reference to alterations in the 
 premises, to be carried out by him or them. For the 
 purposes of their business they desired extensive altera- 
 tions, and they were throughout alive to the importance 
 of obtaining a more secure tenure if they were to incur 
 considerable expense in that connection. 
 
 Eventually an agreement was come to for the 
 grant by defendant to Price Bros, of a fresh lease for an 
 extended term, which was to contain an option for the 
 purchase of the freehold by the lessees at the price of 
 ^5,000. As part of the arrangement, defendant under- 
 took to find ;£750 towards the cost of the alterations. 
 
 153 
 
The new lease was dated October 24th, 1916. Plaintiff 
 took no part in the negotiatioris for it; they were 
 carried on by the defendant with his tenants direct. 
 Plaintiff, however, knew what took place. Nothing 
 material happened during the next two years. Then 
 Price Bros, exercised their option, and the freehold 
 was conveyed to them by deed of September 28th, 
 1918. On September 16th, plaintiff wrote to the 
 defendant that he understood the purchase was about 
 to be completed, and said " You will not, I feel sure, 
 overlook the matter of my commission." Defendant 
 replied repudiating liability. Between the letters of 
 March 5th, 1915, and September 16th, 1918, there 
 was no correspondence between plaintiff and defendant 
 referring to the matter in question. So much for the 
 facts. I have considerable doubt whether in the 
 circumstances a finding that anything plaintiff did 
 was the effective cause of the sale for ;^5,000, which 
 eventually took place, would be warranted, but I do 
 not dispose of the case on that ground. For the 
 plaintiff to succeed it is necessary for him to make out, 
 not merely that he brought about the sale, but that he 
 was employed by the defendant to do so, or that 
 defendant agreed to pay him commission if he did so ; 
 in other words he has to establish a contract; and I am 
 unable to spell out a contract from an5rthing which 
 occurred . It is not the case of an agent being employed 
 to introduce a tenant who afterwards purchases : 
 defendant and Price Bros, were brought together as 
 the result of the latter's dealings with Stringer, and 
 there is no suggestion of any contractual relation 
 between plaintiff and defendant at that stage. Plain- 
 tiff, in his letter of March 5th, 1915, no doubt invited 
 defendant to employ him with regard to a purchase, 
 but I do not think it possible to read the letter in reply 
 as an acceptance of the invitation, or a recognition of 
 
 154 
 
employment already existing, and plaintiff failed to 
 satisfy me that defendant ever verbally employed 
 him or promised to pay him commission. Indeed, in 
 his answers to interrogatories he says : "I did not 
 receive any definite instructions from the defendant 
 to find a purchaser, but he informed me verbally early 
 in 1915 that he would be prepared to sell at a price." 
 Defendant stated in the course of his cross-examination 
 that if a sale had come about in March, 1915, he would 
 have declined to pay plaintiff commission, as he had 
 never given him any instructions. That is at any rate 
 an intelligible attitude to take up, and it is not necessary 
 for me to express an opinion as to whether, in view 
 of their pre-existing business relationship of long 
 standing, plaintiff was entitled to expect defendant 
 to say frankly in his letter of March 5th that he did not 
 intend to pay commission. It is sufficient to point 
 out that plaintiff was content to let defendant remain 
 altogether silent as regards commission. Whether, 
 if he had pressed for a definite answer about it, he 
 would have obtained one he thought satisfactory, 
 one does not know. He, in fact, got no answer : 
 he " chanced it " then, and the court cannot make 
 a contract for him now. The highest at which it can, 
 in my view, be put for the plaintiff is that defendant 
 knew he was pressing Price Bros, to buy, and expected 
 to be paid a commission if they should do so ; but 
 that is not enough. There will be judgment for the 
 defendant with costs. 
 
 155 
 
GRIFFITHS V. GAI.E. 
 
 Equity Side — Limit of Jurisdiction — Burden of Proof — Mortgage — 
 Death of Mortgagor and neglect to prove his Will — Remedy of 
 Mortgagee — Administration A ction — Practice. 
 
 Where, in an action for administration, there is nothing on 
 the face of the proceedings to show that the subject-matter 
 exceeds the limit of jurisdiction, the burden is on the defendant 
 — seeking to avoid the jurisdiction — to estabUsh by evidence 
 an excess value of subject-matter, and not on the plaintiff to 
 negative it. 
 
 JUDGMENT. 
 
 The facts in this case are not in dispute, and as 
 I am about to state them were proved or admitted at 
 the trial. By a deed dated 30 November, 1908, 
 Charles Gale conveyed certain real estate to Edwin 
 Griffiths by way of mortgage to secure ;£250 and 
 interest. The principal is still outstanding, but there 
 is no interest in arrear. The mortgagor died on 3 
 April, 1915, having left what purports to be a Will 
 appointing the defendants his executors. The mortga- 
 gee died on 17 August, 1916, and by his Will appointed 
 as sole executor the plaintiff, to whom probate has 
 been granted. The plaintiff, being desirous in due 
 course of administration of realising the mortgage 
 debt, called it in by notice given to the defendants 
 in September, 1917. He endeavoured before action 
 to induce the defendants or some of them to prove 
 the mortgagor's Will but, although he has been dead 
 over three years, the defendants, giving reasons in my 
 view wholly inadequate, have not carried in the Will 
 for probate, and at the date of the trial it had not been 
 proved. Before action the plaintiff also sought to 
 obtain leave under the Courts (Emergency Powers) 
 Acts to enforce the security. His application in that 
 behalf having failed, for reasons not stated before me, 
 he now brings this action, on the Equity side, seeking 
 
 156 
 
as a creditor to have the deceased mortgagor's estat 
 administered, so far only as regards the mortgaged 
 hereditaments. Prima facie, that seems to me in the 
 circumstances the appropriate remedy. Strong reasons 
 are to my mind required to justify hanging-up the 
 plaintiff any longer in the winding-up of his testator's 
 estate j and none have been brought to my notice. 
 
 At the close of plaintiff's case, Mr. Hiscock, for 
 the defendants, submitted that no case had been 
 made calling for an answer, his point being that 
 evidence had not been adduced by the plaintiff to 
 prove that the subject-matter of the action did not 
 exceed £SQQ in value ; by reason whereof it was 
 objected that the Court had no jurisdiction under 
 Sec. 67 of the County Courts Act, 1888, to try the 
 action. Mr. Hiscock declined to call any evidence, 
 electing to stand on his objection in point of law, 
 which I took time to consider. No other point was 
 raised on behalf of the defendants. 
 
 Having looked at the authorities, I am of opinion 
 that the objection to the jurisdiction is not well 
 founded. It was held by Stuart, V. C, in Cheesewright 
 v. Thorn (38 L,.J. Ch. 615) that it is not a necessary 
 part of plaintiff's case in an administration action 
 to negative a value beyond the jurisdiction of the 
 County Court. If, on the face of the proceedings, 
 it appears that the value of the subject-matter exceeds 
 500/., the action must be dismissed under Sec. 114 of 
 the County Courts Act, but there is nothing on the 
 face of the proceedings here to show or suggest want 
 of jurisdiction ; and that being so Sunderland v. 
 Glover (1915, 1 K.B. 393), a case taken up to the 
 Divisional Court not long ago from this Circuit, is 
 an authority to show that it rests on a defendant, 
 seeking to avoid the jurisdiction, to satisfy the Court by 
 evidence that the value of the subject-matter exceeds 
 
 157 
 
500/., and that in the circumstances present here 
 it is the duty of the Court, on the objection being 
 raised, to proceed with the trial of the action, consider 
 such evidence as to value as may be adduced, and 
 act according to circumstances. If in the course of 
 the case an excess value of subject-matter should be 
 disclosed, a transfer to the Chancery Division of the 
 High Court must be ordered, under Sec. 68 of the 
 County Courts Act ; but as I have said the defendant's 
 solicitor called no evidence, but relied on the objection 
 he raised. That being so, the position, on the only 
 evidence before the Court, is that the plaintiff has 
 established a mortgage debt of 250/. due from the 
 estate of the deceased mortgagor ; there is nothing 
 on the face of the proceedings to show a want of 
 jurisdiction ; and the defendants content themselves 
 with calling on the plaintiff to negative such want, 
 without themselves adducing any evidence to establish 
 it affirmatively. Having over-ruled that objection, 
 I should in the ordinary course of things grant a decree 
 for administration. There is, however, another point 
 which, though not raised by the defendants' solicitor, 
 I feel myself bound to take. Assuming a proper 
 subject-matter, I am in this case sitting with the 
 powers and duties of a judge of the Chancery Division 
 and, although I am not very familiar with it, it appears 
 to me to be the settled practice of that Division, 
 in administration actions, to require a representative 
 of the estate of the deceased to be before the Court ; 
 and here there is no such representative : see D.C.P. 
 (8th Ed.) V. 1, p. 156, et. sq. ; Groves v. Levi (9 Ha. 
 App. XI,Vn.) ; Silver v. Stein (21 L-J., Ch., 312) ; 
 Bruilton v. Birch (22 ly.J., Ch., 911). The document 
 purporting to be the Will of the mortgagor, which 
 exists, may or may not be a valid testamentary 
 instrument ; probate of it may or may not be granted. 
 
 158 
 
That being so, I am not in a position to make a decree, 
 for I do not regard it as a case where the discretionary 
 power to dispense with a representative could be 
 properly exercised. I do not, however, think it would 
 be right in the circumstances to dismiss the action. 
 The proper course appears to me to be to adjourn 
 further consideration, in order that the plaintiff may 
 have the opportunity, if so advised, of taking the 
 necessary steps to obtain the appointment of a repre- 
 sentative of the mortgagor's estate and bring him 
 before the Court. The question is not before me now, 
 but the plaintiff should consider whether, according 
 to the practice of the Chancery Division, an appoint- 
 ment of a person to represent the estate for the purpose 
 of this action, or of an administrator pendente lite, 
 will be sufficient, or whether it is necessary that there 
 should be a general grant to some creditor or other 
 person fit and willing to accept it. On the further 
 consideration, I shall require to be satisfied on this 
 point. 
 
 Reference was made at the trial to O. 6 R. 5 of the 
 County Court Rules, but, though I am by no means 
 unwilling to take a contrary view, it does not appear 
 to me that the relief desired can be given by any 
 direction or answer to specific questions, &c., which 
 that Rule authorizes. 
 
 I think it right to add the following observations : 
 Subject to matters of form and correct procedure, 
 the plaintiff has in my opinion made out a case for 
 relief, and I shall be disposed favourably to consider 
 any application for amendment which he may be 
 advised to make. It is |)lainly to the interest of the 
 mortgagor's estate (on which the costs are not unlikely 
 ultimately to fall) that no avoidable expense should 
 be incurred, and the present defendants may think 
 well to avail themselves of the time afforded by the 
 
 1.59 
 
adjournment and consider the propriety of obtaining 
 a grant of probate and taking the necessary steps 
 to allow of the estate of the mortgagee — if not that of 
 their own testator — ^being wound-up without more 
 delay. It may be that the reason leave to enforce 
 the security was refused was because of the same 
 difficulty as that which I have pointed out stands 
 in the way of the decree I am asked to make; a difficulty 
 which would be removed by a grant of probate. 
 
 The order I make is that the objection to the 
 jurisdiction be over-ruled and that further considera- 
 tion be adjourned sine die, with Uberty to either party 
 to set the case down again on due notice. I reserve 
 all questions as to costs. 
 
 160 
 
JBRRAM & SONS V. HAYTER & OTHERS. 
 
 Intestacy as to Real Estate — Repairs ordered before Grant of Adminis- 
 tration — Liability of Personal Representatives — Breach of 
 Warranty of Authority. 
 
 A died intestate siezed of real estate. Before letters of 
 administration were obtained, B, who believed herself solely 
 or jointly entitled to the estate, took possession and gave orders 
 for repairs to plaintiffs. C, as agent for B, gave them similar 
 orders, stating that B had " come into the property." Plaintiffs 
 were informed by both B and C that " the estate will pay." 
 After agrant of administration, plaintiffs sued the adminis- 
 tratrixes^ andin the alternative claimed damages against B 
 and C for breach of warranty that they had " authority to 
 bind the estate of the deceased." Held that the work, being 
 ordered after the death of thr intestate, his estate could in no 
 case be bound, and that the administratrixes (who repudiated) 
 were not liable. Hei^d also that the statements made did 
 not amount to a warranty of the authority alleged. B held 
 answerable as a principal by or with whose authority the 
 orders were given. 
 
 JUDGMENT. 
 
 The plaintiffs' claim is ^63 7s. lid. for building 
 work done at a house and two cottages, belonging at 
 the time of his death to Thomas Makepeace, deceased. 
 
 The defendants are (1) Mary Elizabeth Hayter 
 and Alexina lyOtiisa Smith, the administratrixes of the 
 deceased ; (2) Mary Ann Marchant, a cousin of the 
 deceased ; and (3) A. R. Peet, who at the time Make- 
 peace died was a poHce inspector stationed at Shirley, ^ ^ 
 
 but who has since retired from the force. Neither of t=t^ 
 defendants challenged the amount of the claim ; the ' 
 sole question in dispute is as to UabiUty. 
 
 Of the total sum claimed, the bulk (^^55 17s. Ot?.) 
 is for repairs to the roof of a house in Park Street, in 
 which deceased was living down to the time of his 
 death, and £1 2s. 2d. is for work done at a cottage, 
 No. 5 Oakley Road, let to one Diddems, in order to 
 
 161 
 
comply with a Nuisance Notice served by the sanitary 
 authority. The rest of the items do not call for special 
 mention. With the exception of opening and cleaning 
 a drain in March, 1918, for which 18s. is charged, the 
 whole of the work, the subject of the action, was done 
 between April and August, 1917. 
 
 The grant of administration to the first two 
 defendants is dated 5th June, 1918, and it was not 
 suggested that these defendants, or either of them, 
 gave plaintiffs, directly or indirectly, any orders for 
 the work, or, indeed, had any communication with them 
 until long after it had been carried out. It was 
 faintly contended that as to the work done to comply 
 with the Nuisance Notice the claim might be supported 
 against these defendants on the footing of expense 
 incurred in discharging a statutory Uability attaching 
 to them as legal owners of the premises, but as to the 
 remainder of the claim the case was rested entirely 
 on the ground of the estate in the hands of the defen- 
 dants having had the benefit of the work. 
 
 At the close of plaintiffs' case, Mr. Bartley, for the 
 administratrixes, submitted that no case had been 
 made calling for an answer by him, and except as 
 regards the ;^1 2s. 2(^. I so ruled. I reserved that item, 
 and having further considered it I am of opinion that 
 the objection must prevail as regards the entire claim. 
 
 The title of administratrixes dates from the grant 
 of administration and does not (as in the case of execu- 
 tors) relate back to the death. At the time the work 
 was carried out the administratrixes here had no title 
 a'nd were in law strangers to the estate. It is not a 
 case of the sanitary authority seeking to enforce a 
 charge on the property — it is a claim in contract — and 
 there can be no liability in contract attaching to 
 persons unascertained at the time the work was 
 ordered and done, nor any question of the authority 
 
 162 
 
of an agent to give orders on their behalf. There is 
 no evidence of ratification (even if— contrary to my 
 view— that would, in the circumstances, avail), and as 
 against the legal personal representatives of the 
 deceased the action wholly fails. 
 
 The claim as against the defendants Marchant 
 and Peet is put in two ways. Firstly, it is alleged 
 that they gave direct orders for the work, and are 
 liable as principals ; alternatively it is said they are 
 liable for breach of warranty " that they were author- 
 ised and competent to bind the estate of T. Makepeace, 
 deceased." 
 
 The circumstances are somewhat unusual. The 
 deceased was Uving alone at the Park Street house, 
 and was found dead there. The poUce being comrnu- 
 nicated with by telephone, the defendant Peet took 
 steps to find the next-of-kin, and got in touch with the 
 defendant Mrs. Marchant. She, in consequence, was 
 present at the inquest, which Peet also attended as 
 coroner' s officer . Mrs . Marchant claimed to be entitled, 
 if not to the whole, at any rate to a part of the dead 
 man's property, and the personal effects found on the 
 body were handed to her by Peet at the inquest. 
 Down to this time Peet's action was quite regular, but 
 from then onwards, for some reason or other, he 
 appears to have stepped far outside his duty as a police 
 officer, and to have taken a very active part in connec- 
 tion with the dead man's property and Mrs. Marchant's 
 affairs. He obtained from the latter ;^12 17s. Od. for 
 the undertaker's bill in April, 1917, but did not pay the 
 bill until April, 1918. He collected the rents of the 
 two cottages and sold certain of the chattels in the 
 Park Street house, and admits having ;^31 6s. 3d. in 
 his hands from these sources, in addition to a sum of 
 ;/^20, which, at his suggestion, Mrs. Marchant handed 
 to him in May, 1917, for part payment of a debt 
 
 163 
 
claimed by one Barter to be owing to him by the 
 deceased. 
 
 The death occurred about the middle of February, 
 1917, and at the end of March Mrs. Marchant took 
 possession of the house in Park Street. The premises 
 were in a very bad state, and some repairs were neces- 
 sary to make the place habitable. At the end of 
 March, and in April, plaintiffs carried out a few urgent 
 repairs. In May and July they did a Httle work at 
 the two cottages, and in July and August they repaired 
 the roof of the Park Street house. They were commu- 
 nicased with in the first instance by Peet, who at the 
 latter end of March asked them to meet him at the 
 Park Street premises, as a member of the firm accord- 
 ingly did. Peet stated that Mrs. Marchant had come 
 into the property and had taken possession, and he 
 instructed plaintiffs to do certain small repairs to two 
 of the rooms to make them habitable, " the cost to be 
 charged to the estate." Orders for all the later work 
 were given by Peet, and in a similar way, except as 
 regards the 18s. item of March, 1918, for which Mrs. 
 Marchant alone gave the order. When the extensive 
 repairs to the roof were decided on, plaintiffs expressly 
 enquired of Peet who was going to be responsible for 
 payment, and the reply was that " it would be all right, 
 the estate would pay "; and the bill was to be sent to 
 Mrs. Marchant, made out against the estate of 
 Makepeace, deceased. The bills were accordingly 
 sent in to Mrs. Marchant, headed : — 
 
 " The Estate of T. Makepeace, deceased. 
 Mrs. Marchant." 
 
 Mrs. Marchant had no direct deaUngs with the 
 plaintiffs until July, 1917,when the work at the roof was 
 ordered, but all the orders which Peet gave were given 
 with her knowledge and consent. As regards the 
 Park Street roof, plaintiffs having, at Peet's instance, 
 
 164 
 
examined it, saw Mrs. Marchant (then in occupation 
 of the house) and explained to her what they found 
 necessary. She told them to do the work, as without 
 it the place was not fit for her to Uve in, but she said 
 they were to get Peet's confirmation of her order 
 (as they did) before starting the work. In this con- 
 nection she explained that she left ever5rthing to Peet, 
 having great confidence in him. I have stated in some 
 detail what took place as regards the roof, as the charge 
 for that work represents nearly 90 per cent, of the 
 total claim ; but in my view, whatever were plaintiffs' 
 relations with Mrs. Marchant and with Peet, in fact 
 and in law, they were in substance identical as regards 
 all the items. 
 
 DeaUng first with the case against Peet, there is, 
 in my opinion, no foundation for the suggestion that 
 plaintiffs dealt with him as a principal or gave credit 
 to him. Then as to the alleged breach of warranty : 
 What authority did he represent he had ? Mrs. 
 Marchant's, undoubtedly ; and that he possessed. 
 Did he assert authority to act for anyone else ? What 
 he actually said was " the estate will pay," and plain- 
 tiffs in their Particulars of Claim allege an assertion 
 of authority " to bind the estate of the deceased." But 
 estates do not pay ; it is persons who pay, and become 
 liable to pay, and I think the essence of an action 
 for breach of warranty, in such a case as this, is an 
 assertion by the defendant that he had the authority 
 of some person or persons for giving the orders he gave, 
 whilst in truth he did not possess it. The debt (newly 
 to be created) could not, in the nature of things, be the 
 debt of the deceased, nor bind his estate ; nor were 
 there then any personal representatives in existence 
 to be bound. I am unable to spell out of the words 
 used a representation that administrators had been 
 appointed and their authority obtained, even if that 
 
 165 
 
were the case set up in the Particulars of Claim, as it 
 is not. Peet might have said " I have the authority 
 of the persons beneficially interested in the estate of 
 the deceased," but I think to put that meaning on the 
 words he used would be, not to construe a contract, 
 but to make one ; and, again, it is not the case alleged 
 in the Particulars. I think all Peet represented, and 
 all plaintiffs understood him to represent, was that 
 Mrs. Marchant had succeeded to the property, and that 
 he had authority to act for her. I do not find an 
 assertion of authority by Peet which he did not in 
 fact possess. Fraud is not alleged ; there is no claim 
 based on an executorship de son tort; and the action as 
 against Peet fails. Nor do I think there was anything 
 in his conduct {vis a vis the plaintiffs) to justify me in 
 depriving him of his costs. 
 
 There remains the question of Mrs. Marchant's 
 liability. Investigations made by the solicitor to 
 whom Peet introduced this lady have resulted in 
 showing that she is neither the heiress-at-law nor 
 entitled to a grant of administration, and the persons 
 to whom the legal and beneficial interests in the estate 
 of the deceased passed repudiate habiUty — hinc illae 
 lachrymae. As regards the claim against this defendant 
 based on breach of warranty of authority, the foregoing 
 observations in this connection appear to me applicable 
 to her as well as to Peet. But in her case, unhke 
 his, there were, in my view, direct orders given by her 
 as a principal, and the fact that the orders were coupled 
 with a statement, believed by her to be true, but in fact 
 erroneous, that she enjoyed an entire or partial bene- 
 ficial interest in the estate, is, I think, immaterial. 
 
 There will be judgment for the plaintiffs against 
 Mrs. Marchant for ^63 7s. 11^., with costs, and 
 judgment for the other defendants, with costs, to be 
 paid by the plaintiffs. The sum of ;^1 2s. 2d. paid 
 
 166 
 
into Court by the defendant administratrixes with 
 denial of liability will be paid out to their solicitor. 
 
 Mr. Spranger, for the plaintiffs, invited me to say 
 that the joinder of the personal representatives was 
 reasonable, and necessitated by the conduct of the 
 other defendants, and he applied for an order that 
 the costs payable by any defendant against whom the 
 plaintiffs might succeed should include any costs 
 payable by plaintiffs to the administratrixes ; but I do 
 not accede to the application. 
 
 There are no counter-claims, and this judgment 
 necessarily leaves untouched any questions as regards 
 the funeral expenses paid by Mrs. Mar chant and the 
 rights concerning the sums in the hands of the defen- 
 dant Peet, as mentioned above ; nor do I regard the 
 result of the Utigation on the points which are before 
 me with any great satisfaction, pressing hardly, as it 
 plainly does, on Mrs. Marchant, but I do not see any 
 escape from the conclusions which I have expressed. 
 
 167 
 
JEFFERY V. PAGET. 
 
 Affiliation Agreement — Marriage of Mother — Continuance of Liability 
 — Poor Law Amendment Act, 1834, sec. 57. 
 
 An agreement for maintenance of illegitimate children entered 
 into on proceedings for affiliation is not a contract for indemnity 
 only, and is therefore not avoided by the subsequent marriage 
 of the mother, which, by the effect of the Poor Law Amendment 
 Act, 1834, sec. 8, imposes the liability for maintenance of the 
 children on her husband. 
 
 JUDGMENT. 
 
 This case raises a short but not uninteresting 
 point. In September, 1918, the plaintiff took out 
 before the Justices an affiliation summons against 
 the defendant in respect of two illegitimate children, of 
 whom she is the mother, and of whom she alleged him 
 to be the father. The summons was withdrawn at 
 the request of the defendant, and in consideration of 
 an agreement, dated 19th September, in the foUowiug 
 terms : — 
 
 " I, Harry George Paget, do hereby agree 
 
 to pay Rosa Mabel Sandy (now Jeffery) 7s. Qd. per 
 
 week for maintenance of Cecil Paget, also 7s. Qd. 
 
 per week for maintenance of Frederick Paget, 
 
 a total of 15s. per week, till they reach the age 
 
 of 16 years." 
 
 It was admitted that if the agreement is effective 
 the sum of Al. 10s., for which the action is brought, 
 is payable under it to the plaintiff, but it was con- 
 tended that the agreement is inoperative, on the 
 ground that on the 20th September, the day after 
 it was made, the plaintiff became a married woman. 
 No other defence was raised. It was urged by the 
 defendant's solicitor that the document sued on is, 
 on its true construction, an agreement to indemnify 
 the plaintiff in respect of the maintenance of the 
 children, and that, as under sec. 57 of the Poor I^aw 
 
 168 
 
Amendment Act, 1834, her husband became Uable in 
 law for the maintenance of her children, whether 
 legitimate or illegitimate, born before the date of the 
 marriage, the purpose of the agreement failed on the 
 marriage taking place, and it became inoperative. 
 That is the short point, and there is, in my view, 
 more than one answer to it. In the first place, the 
 agreement neither purports to be, nor in substance 
 is, a contract of indemnity at all. It is a contract to 
 pay a sum which, according to varying circumstances, 
 may or may not be sufficient to clear the cost of the 
 children's maintenance. Nor is it any way expressed 
 to be contingent. It is a contract to pay a specific 
 sum, for a specific purpose, during a specific period. 
 The happening afterwards, during the lifetime of 
 the children, of an event whereby their maintenance 
 may be wholly or in part provided for from other 
 sources is, in my opinion, immaterial. The mother 
 might have a fortune left her, and lose it again ; 
 her husband might be a wealthy man to-day, and die 
 a pauper next year. Any such considerations are, 
 to my mind, beside the point. Apart, moreover, 
 from the fact that the husband's Hability may, by his 
 death or other cause, become or be of no effect, or no 
 adequate effect, it is to be observed that its existence 
 for the time being does not terminate for all time the 
 mother's obHgation, and certainly does not put an 
 end to her interest in having the agreement performed. 
 The case seems to me a plain one. For good considera- 
 tion, the defendant unconditionally agreed to pay the 
 plaintiff a definite sum for a definite time, and unless 
 the children should die before that time expires I am 
 unable to discover any ground in law why he should 
 not be held to his contract. The defence fails, and 
 thefe will be judgment for the plaintiff for 41. 10s, 
 with costs. 
 
GEI.STON V. KING. 
 
 Things ferae naturae — Conversion of a Swarm of Bees — Right of 
 Owner to follow a Swarm — Qualified Ownership. 
 
 Where a swarm of bees, which had alighted on the plaintiff's 
 land and had been secured and hived by him on a certain day, 
 left the hive on the following day and settled on ground some 
 distance away and were hived there by the owner, who refused 
 to restore them to the plaintiff, Held that, there never having 
 been any loss of identity of the swarm, nor any abandonment 
 of the plaintiff's rights of qualified ownership in the bees as 
 things ferae naturae, he was entitled to recover the value of the 
 swarm as damages in an action for conversion. 
 
 JUDGMENT. 
 
 The subject matter of the action is a swarm of 
 bees, the value of which the plaintiff claims to recover 
 on an allegation that -he has been deprived of his bees 
 by the tortious act of the defendant. On May 28 there 
 was on the plaintiff's premises a hive of bees, and on 
 that day the bees swarmed and the plaintiff hived 
 them. On 29 May the bees left the new hive and 
 settled on the next-door neighbour's hedge. On the 
 plaintiff attempting to re-take them, about 5.30 the 
 same evening, the bees flew away. The direction they 
 took was observed by the plaintiff's son, and the 
 plaintiff learned soon afterwards that they had settled 
 a short distance away in the grounds of a house called 
 ' Downsland House.' The Downsland House premises 
 are let to the defendant, and he is in possession of 
 them, but the house was on May 29 unoccupied, the 
 defendant residing on the opposite side of the same 
 road. The plaintiff, being unable to obtain access to 
 the Downsland House premises, went over to the 
 defendant's residence and asked to be allowed to take 
 the bees. The defendant stated that on the bees 
 settling upon his premises he had sent to a beekeeper 
 living near, and that with his help the bees had been 
 
 170 
 
hived, and suggested that the trouble of hiving ought 
 to be paid for. The plaintiff at once expressed his 
 willingness to pay, but the defendant decUned to let 
 him have the bees, saying by way of excuse that he 
 must communicate with the man who had helped hive 
 them, and to whom, he stated, he had given them ; 
 and he told the plaintiff to see him again the following 
 evening. The plaintiff did so, but the defendant then 
 point-blank refused to let him have the bees, became 
 abusive and forbade the plaintiff to enter the Downs- 
 land House premises, where the bees still were. The 
 result was that the plaintiff was unable to re-take the 
 bees and lost them. Their value I assess at 31. 3s. 
 
 So much for the facts; now as to the law. Bees 
 are not covered by the rules applicable to chattels. 
 They are not mere chattels, but are things ferae naturae, 
 and the subject, not of absolute, but of a qualified 
 ownership. The law affecting them is thus stated in 
 2 Blackstone's Commentaries, page 392 ; ' Bees are 
 ferae naturae, but when hived and reclaimed a man 
 may have a quaUfied property in them by the law of 
 nature as well as by the civil law. . . . Animals 
 ferae naturae are no longer the property of a man than 
 while they continue in his keeping or actual possession ; 
 but if at any time they regain their natural liberty 
 his property instantly ceases ; unless they have 
 animum revertendi, which is only to be known by their 
 usual custom of returning . . . The law extends 
 this possession further than the mere manual occupa- 
 tion ; for my tame hawk that is pursuing his quarry 
 in my presence, though he is at liberty to go where 
 he pleases, is nevertheless my property ; for he hath 
 animum revertendi.' The learned Commentator in- 
 stances also carrier pigeons, adding : ' But if they stray 
 vdthout my knowledge, and do not return in the 
 usual manner, it is then lawful for any stranger to tals;e 
 
 m 
 
them.' In lyord Halsbury's Laws of England (Vol. 1, 
 p. 799) the matter is dealt with as follows : — ' Trespass 
 or trover will lie for taking . . . bees from a hive. 
 Bees are ferae naturae, and there is no property in 
 them except by reclamation. Thus if a swarm settle 
 on a man's tree no property passes until the bees are 
 hived ; when hived, they become the property of the 
 hiver ; and if a swarm leaves the hive this property 
 • continues in the hiver so long as they can be seen and 
 followed.' . 
 
 Appl5dng the law as stated above to the facts of 
 this case, in my opinion the plaintiff at the time he 
 first went to the defendant on May 29 had not lost 
 his rights in the bees. They were, in lyord Halsburj^'s 
 words, ' seen and followed,' in the sense that there 
 was no loss of identity, nor anything in the nature 
 of abandonment, and I think that is sufficient. The 
 case is very near the line, but in my view the short 
 interval of time during which the bees were out of 
 the plaintiff's actual vision does not defeat his claim. 
 His demand for the bees on the evening of May 29 
 ought to have been complied with, and I give him 
 judgment for 31. 3s. with costs. If the defendant 
 desires to appeal, he can have leave. 
 
 172 
 
RE ARTHUR WISE. 
 
 Bankruptcy — Private Company — Option to Shareholders to buy shares 
 parted with — Rights of Trustee in Bankruptcy — Disclaimer — 
 Vesting Order. 
 
 The Articles of Association of a private company provided 
 that if any member should wish to sell his shares he should 
 first offer them to the other members of the Company, and 
 (Art. XIV.) that if a member should become bankrupt his trustee 
 should forthwith offer his shares to the other members at a 
 price to be fixed by arbitration, and should pay the arbitrator's 
 fee. On a shareholder becoming bankrupt, the trustee was 
 called upon to offer the shares standing in his name (which 
 were subject to three successive equitable charges) to the other 
 members, but declined to do so and disclaimed the shares. 
 HeIvD (1) that the trustee was in the circumstances entitled 
 to disclaim ; (2) that the option of purchase provided by the 
 Articles did not amount to an ' interest ' within the meaning 
 of s. 54 (2) of the Bankruptcy Act, 1914 ; and (3) that in any 
 case the Court had no power, on an application by three' of the 
 five shareholders in the Company, to make an order vesting the 
 disclaimed shares in the applicants. Whether the provisions 
 of Art. XIV. were binding on the trustee, quaere. 
 
 JUDGMENT. 
 
 This an application under Sub. Sec. (6) of Sec. 54 
 of the Bankruptcy Act, 1914, by three of the Share- 
 holders in Wise & Lansdell, I,td. for an order vesting 
 in them 473 ordinary shares in the Company, which 
 stood in the bankrupt's name at the commencement 
 of the bankruptcy. The order of adjudication was 
 made, on a creditor's petition, on 13 October, 1917, 
 and the Official Receiver is the Trustee. 
 
 The application is supported by the Company, 
 appearing by its solicitor, and is opposed by the holder 
 of a first charge on the shares in question, represented 
 by Mr. Tindal Davis ; also by Mr. A. S. Cooper, 
 solicitor for himself and others as the holders of second 
 and third charges. Captain Wright appeared on behalf 
 of the bankrupt against the application, but, his 
 
 173 
 
locus standi being objected to, he did not press his 
 claim to be heard. The Official Receiver, having 
 been served with notice of the application, attended 
 at the hearing, but did not desire to take any part in 
 the proceedings. 
 
 The questions raised are (1) whether there is 
 power to make the orders ought, and if so (2) whether, 
 in the exercise of my discretion, I ought to make it. 
 
 The Company was formed by the bankrupt in 
 1910 to acquire and carry on his business as a builder. 
 It is a private Company, the only Shareholders other 
 than the bankrupt himself being Mr. Lansdell, his 
 former manager or foreman, and four other persons, 
 all, or all but one, of whom are related to the bankrupt 
 or to I/ansdell. 
 
 The matter arises under Art. XIV. of the 
 Company's articles of association which, so far as is 
 material, and omitting unnecessary words, provides 
 
 that : — 
 
 " No member shall be entitled to transfer any share otherwise 
 " than in accordance with the following provisions : — 
 
 " {a) A member desirous of selling his shares shall give notice 
 
 to the secretary of the Company containing an offer to sell 
 
 the same and stating the number of shares he desires to sell 
 
 and the price he is willing to accept. The secretary shall 
 
 " thereupon send to each of the members of the Company a 
 
 " circular containing the same particulars and naming a day 
 
 on or before which offers to purchase the shares will be 
 
 ' received. If on or before the day so named offers to purchase 
 
 all or any of the shares at the price named shall be received 
 
 " from members by the secretary he shall as agent for the selling 
 
 member and the purchaser or purchasers declare a contract 
 
 of sale to be concluded and give notice thereof to the selling 
 
 member and the purchaser or purchasers, who shall give 
 
 effect to the contract or contracts by the execution of proper 
 
 " transfers and the payment of the price. 
 
 " (b) If within 21 days after service of the notice of sale on 
 " the secretary the selling member shall not receive notice that 
 " his offer to sell is accepted by some member or members of 
 
 174 
 
'I the Company he may within six calendar months sell or 
 " dispose of the shares or so many of them as shall not have been 
 "^ agreed to be purchased by a member or members to any other 
 '' person at a price not less than that named in the notice of 
 " sale." 
 
 " (c) A notice of sale may be renewed from time to time but 
 " the offer contained therein shall not be withdrawn until the 
 " expiration of 21 days." 
 
 "(d) If any person shall become entitled to any share by 
 " reason of the bankruptcy of any member he shall be bound 
 " forthwith to offer the same for sale to the members of the 
 " Company at a fair price, to be determined by agreement 
 " between such person and the Directors, or in default of agree- 
 " ment by a single independent arbitrator, who shall be ap- 
 " pointed by the Directors, but shall be paid by such person. 
 " The fee payable to such arbitrator shall not exceed Five 
 " Guineas, and as soon as the said fair price shall have been 
 " determined, the said person shall give to the secretary a 
 " notice of sale in the manner hereinbefore mentioned, con- 
 " taining as the price which he is wilUng to accept the said fair 
 " price, and the same results shall foUow as in the case of a 
 " notice of sale voluntarily given. If the said person shall fail 
 " to give such notice of sale the Directors may as his agent 
 " give the same." 
 
 Under date 2 May, 1919, the Company, pur- 
 porting to act in pursuance of Act XIV., called upon 
 the Trustee to offer the shares in question for sale to 
 the members of the Company, failing w^hich he was 
 informed that the Directors might make such offer. 
 The Trustee did not comply with this demand, and 
 under date 27 June he executed a disclaimer of the 
 shares. 
 
 In the affidavit filed in support of the application 
 it is alleged that the three applicant Shareholders are 
 desirous of purchasing the shares, and it is submitted 
 that they are entitled to have them offered for sale " in 
 the same way as nearly as circumstances will admit " 
 as is prescribed by Art. XIV., the price of the shares to 
 be fixed by the arbitrator referred to therein "or in 
 any other way directed by the Court." 
 
 175 
 
The foundation of the jurisdiction I am asked 
 to exercise under Sub. -sec. (6) is the existence of 
 " disclaimed property," and it was contended on 
 behalf of the second and third incuml/rancers that this 
 condition precedent is wanting, on the grounds (a) 
 that the shares never vested in the Trustee in Ba,nk- 
 ruptcy at all, because their value was exhausted by 
 the incumbrances, the bankrupt therefore having no 
 interest, and being a bare trustee of tlie shares (6) 
 that if the shares did pass to the Trustee, inasmuch as 
 they were fully paid and carried no liability for calls, 
 no right of disclaimer is given by the Act. 
 
 As to {a), the shares standing in the bankrupt's 
 name and the interests of the several incumbrancers 
 being equitable only, it seems to me plain that both 
 the legal and ultimate beneficial ownership were in 
 the bankrupt. Subject to the rights of the incum- 
 brancers, the shares belonged to the bankrupt, and 
 they became vested in the Trustee und^r Sec. 38 of the 
 Bankruptcy Act. The suggestion that the question 
 whether or not the bankrupt is a mere trustee within 
 the meaning of Sec. 38 (1) is to be determined by the 
 result of an enquiry as to whether at the commence- 
 ment of the bankruptcy the price obtainable for the 
 Shares exceeds the sums due at the moment for prin- 
 cipal, interest and costs under the charges is to my 
 mind quite untenable. 
 
 Point (6) gives me more difficulty, but here also 
 I am against Mr. Cooper's contention. In support of 
 it, my attention was drawn to observations by Jessel, 
 M.R., in In re Levy, ex parte Walton (17 CD. at pp. 
 752-3) . That being a case of leaseholds, the passages 
 relied on in the judgment of the Master of the Rolls 
 may be said to be obiter only, but they appear to have 
 been approved by the House of Lords in De Vesci v. 
 O'Connell (19u8 A.C. 298), and they are strong to show 
 
 176 
 
that tke generality of the expression " shares in Com- 
 panies " in Sec. 54 (the present disclaimer section) 
 must be regarded as Hmited by the words which follow — 
 
 ' or any other property which is not 
 
 ' readily saleable b}'' reason of its binding the possessor 
 ' to the performance of any onerous act or to the 
 ' payment of any sum of money." The shares here 
 in question are fully paid shares, but if retained by 
 the Trustee they are burdened with three successive 
 incumbrances, alleged by some, at any rate, of the 
 parties to cover the full value. Moreover, assuming 
 Art. XIV. to be binding on the Trustee, retention of 
 the shares involves an obligation on him, not merely 
 to offer them to the members of the Company, but to 
 pay the fee of the arbitrator who is to fix the price. 
 It is impossible to say that the Trustee could not 
 warrantably adopt the view that the incumbrances 
 exhausted the value of the shares, in which case he 
 would be incurring arbitration expenses with no 
 advantage to the creditors. In my opinion the shares 
 were in -the circumstances disclaimable. 
 
 Mr. Tindall Davis, for the first incumbrancer, was 
 content, for the purpose of his opposition, to assume 
 that the disclaimer in fact executed by the Trustee 
 was effective and put an icnd to any interest in the 
 bankrupt or the Trustee. The point he urged was 
 that the apphcants have no interest in the disclaimed 
 property within the meaning of Sec. 54 (6) , and so are 
 not in a position to set the Court in motion. He 
 contended that " claiming any interest " must be read 
 as " having any interest," and I think this is right, 
 or absurdity would result. Then, have the apphcants 
 " an interest " ? What would be the position, accor- 
 ding to their view, but for the disclaimer ? The 
 Trustee would be bound, they say, to offer the shares 
 at a price fixed as provided by Art. XIV. ; whereupon, 
 
 177 
 
tiiey would have an option of purchasing all or some 
 of the shares at such price, according as the other 
 shareholders were or were not buyers. In my opinion 
 such a vague and uncertain right as that is not "• an 
 interest " within the meaning of the sub-section, 
 which I think, contemplates property — some degree 
 of legal or equitable ownership in the subject-matter 
 of the disclaimer — and not a mere chance of acquiring 
 ownership of an uncertain number of shares at an 
 unknown price. Consideration of the working out of 
 any order I might make .confirms me in this view. The 
 power given by the section is to make a vesting order. 
 In whom am I to vest the shares ? Clearly in someone 
 who asks for them, and the only persons who at the 
 moment ask for an5^hing are the applicants, who 
 claim to have the shares vested in themselves alone j 
 but neither they nor the other Shareholders, whose 
 equal rights I am invited to ignore, have any right 
 of property whatever in the shares ; whilst other 
 persons (the several sets of incumbrancers) have. 
 In truth, what Mr. Du Pare asks me to make is not a 
 vesting order at all, but an order in the nature of a 
 decree for specific performance of a contract — an order 
 directing that such and such preHminary steps are to 
 be taken, and that, if thereupon such and such things 
 happen, the shares shall vest in A., B. or C. according to 
 the circumstances. It is sufficient to say that the sec. 
 gives no power to make such an order, and an order 
 simply vesting the whole of the shares in the applicants 
 without more ado cannot be — nor do I think it is — 
 seriously contended for. It is to be observed that 
 the affidavit filed in support of the appUcation appears 
 to recognize the impracticability of the procedure 
 prescribed by Art. XIV. being closely followed, and 
 at the hearing the appUcants' counsel invited the 
 Court to nominate an arbitrator. 
 
 178 
 
I am disposed to think there is yet another 
 difficulty in the way of the appUcants. The point 
 was not raised at the Bar, but I am by no means 
 satisfied that a shareholder can bind his trustee in 
 bankruptcy b}'^ such a contract as is expressed in 
 Art. XIV. {d). True, the Trustee takes the assets 
 cum onere and can stand in no better position with 
 regard to them than does the bankrupt himself, but 
 it is quite another thing to say that the bankrupt can 
 create an obligation, to arise for the first time on 
 bankruptcy, not only compelUng the Trustee to sell 
 assets at what may be a disadvantageous time, but 
 binding him to pay money (the arbitrator's fee and 
 probably other arbitration costs) which the bankrupt 
 will never have to pay, and from which the creditors 
 may derive no benefit. The point, as I say, was not 
 argued, but on principle it seems to me one of substance; 
 and if the case should go further it will of course be 
 open to the respondents. 
 
 For the foregoing reasons I am of opinion that 
 the application fails and I dismiss it with costs. 
 
 Some of the observations I have made touch 
 incidentally on the second question, whether, if there 
 is power to make the order sought by the notice of 
 application, it would be a right order to make, but 
 in the view I take this question does not arise. Neither 
 have I to consider what the position would be if the 
 application for a vesting order were made by the 
 Company or an incumbrancer, whose rights are saved 
 by Sub.-sec. (2). 
 
 179 
 
YBOMANS V. KAMBS (Surgeon- Admiral) & 
 WPSCOMB (Captain). 
 
 MUIvI.BNS V. SAMB. 
 
 Club — Member of Committee — Trustee — Personal Liability. 
 
 A member of a Club Committee, who is party to an order 
 to a tradesman given on behalf of the committee, is personally 
 liable to the tradesman, unless the latter accepted the order 
 on terms that he should look solely to the club funds for 
 payment, to the exclusion of personal liability on the part of 
 the members of the committee. 
 
 A member of a club was appointed President of the club, 
 and in such capacity became an ex-officio member of the 
 committee, whose meetings he did not attend. Held that 
 he did not by accepting the position of President, without more, 
 make the committee his agent to incur expenditure and render 
 him personally liable to tradesmen, especially as regards goods 
 or work not required for the every-day use of the club. 
 
 JUDGMBNT. 
 
 These proceedings were commenced in the High 
 Court, the Plaintiff, Yeomans, claiming to recover 
 ^41 \Ss. Qd. for secretarial pay, and the Plaintiff 
 Mullens claiming ^^38 15s. Od. for builder's work. 
 The Defendants are the same in each case, but other- 
 wise there is little, if any, connection between the two 
 claims, which were by consent consolidated, to no 
 useful end that I can see, but with the result of making 
 a clear presentation of the cases less easy than it would 
 otherwise have been. If there were some vital question 
 common to the two cases (as in my view there is not) , 
 application might properly have been made for one 
 action to be treated as a test action, or for a stay of 
 one until the other had been tried ; but consoUdation, 
 even if authorized by the Rules (of which I am by no 
 means sure), is highly inconvenient, and it may be 
 found that the inconvenience does not cease with the 
 Judgment. 
 
 180 
 
The Defendants are, or were, connected with a 
 body of persons known as " The Comrades of the Great 
 War," and with a club formed by a group of such 
 persons. In the Particulars of Claim delivered in the 
 consohdated action, after the transfer to this Court, 
 they are styled in the title " (Trustees of the Comrades 
 of the Great War Club, Portsmouth)." Yeomans' 
 claim is for wages due to him as secretary of that club, 
 "of which the defendants were Provisional Trustees 
 and Committee-men," and Mullens' claim is stated 
 to be " against the defendants, as Provisional Trustees 
 and members of the Committee " of the same club. 
 
 Mr. Pritt opened the case as one in which it was 
 sought to recover against the defendants in their 
 personal capacity, whereupon Mr. Harris, their counsel, 
 objected that they were not so sued, and intimated 
 that on such a claim he should apply for judgment or 
 a non-suit. I regard the words in inverted commas 
 above as merely descriptive, and the objection raised 
 by Mr. Harris appears to me untenable. I was, 
 however, not asked to rule, for Mr. Pritt, though not 
 admitting the validity of the objection, met it by an 
 appUcation for leave to amend by striking out of the 
 Particulars the words in inverted commas, and so 
 putting it beyond question that the demand was a 
 personal one and no other. Mr. Harris, whilst formally 
 opposing the appHcation to amend, agreed that the 
 amendment would not give rise to " surprise," and 
 did not desire an adjournment if I should see fit to 
 accede to the application. The proposed amendment, 
 enabling, as it does, the point which plaintiffs desire 
 to Htigate to be clearly raised, seemed to me one 
 which in the circumstances ought to be allowed, and 
 I allowed it. 
 
 The sole question, therefore, is whether or not 
 plaintiffs succeed in establishing that the contracts 
 
 m 
 
on which they respectively sue are binding on the 
 defendants, or either of them, personally. 
 
 " The Comrades of the Great War " is an unin- 
 corporated body, with headquarters in IvOndon, and 
 many ramifications in different parts of the country, 
 and a wealth of information (which so far from enriching 
 was, in my view, hereditas damnosa) rained upon me 
 with regard to " Posts," " Branches," " Divisions," 
 etc. This was to my mind of no materiality, and it is, 
 I think, sufficient to say that a number of persons 
 living in or near Portsmouth, who had become " Com- 
 rades of the Great War," decided, in or about October, 
 
 1918, to form a social club, with premises in Southsea. 
 A provisional committee came into being and held 
 what appears to have been a first meeting on 7th 
 October, 1918. The club was named " The Comrades 
 of the Great War Club, Portsmouth," and a copy of the 
 club rules was put in evidence. 
 
 The cases of the two plaintiffs are, as I have said, 
 quite distinct, and I will deal first with that of Yeomans. 
 He states that he was originally appointed Secretary 
 of the Portsmouth " Branch," and subsequently a 
 "Divisional" Secretary of the Comrades of the Great 
 War, but his claim is expressly stated in the particulars 
 to be for salary due to him as secretary of the club 
 for four weeks, from 29th September to 27th October, 
 
 1919, at 30s. a week, and for the period from the 
 latter date to 10th December, 1919, at ^5 10s. Od. 
 a week. It was explained that the £S 10s. 0^^. is 
 made up, as to ^4, for salary payable to plaintiff as 
 ' Divisional ' Secretary, to which office he was ap- 
 pointed by a resolution passed at a meeting of the 
 Portsmouth ' Branch ' held on 23rd March, 1919. 
 It is, however, plain that no claim for salary in any 
 capacity other than that of cluh secretary is covered 
 by the Particulars, and I exclude from consideration 
 
 182 
 
any other claim. If plaintiff is entitled to recover, 
 at all in this action, the correct sum is ;/^15 16s. 0^., 
 being at the rate of ;£80 a year from 29th September 
 to 10th December. 
 
 Yeomans is suing two individual members of the 
 club, and the law is clear, though the application of it 
 may not be easy. As was pointed out by Parke, B. 
 in Flemynge v. Hector (2 M. & W. at p. 183), what the 
 plaintiff in such a case has to make out (whether the 
 defendant is a member of the managing body or not) 
 is " that the defendant either by himself or his agent 
 entered into the contract " sued on. The question 
 I have to determine is whether the defendants, or 
 either of them, directly or by agent, employed plaintiff 
 as secretary of the club, or became personally liable 
 to him on such a contract by way of ratification. 
 
 At the first meeting of the provisional committee 
 mentioned above, eight persons were present, including 
 the plaintiff and the defendant. Captain lyipscomb, 
 but not Surgeon Admiral Bames. I^ipscomb was 
 elected President of the club, and on his proposal the 
 plaintiff was elected secretary ; all persons attending 
 the meeting were elected members of the committee 
 of the club. 
 
 The provisional committee met again on 5th 
 January, 1919. The plaintiff was present, but neither 
 of the defendants. At this meeting the two defendants 
 were appointed joint Trustees of the club. If it is 
 material, this appointment does not appear in the 
 evidence before me to have been confirmed, either bj^ 
 general meeting of the club or by any meeting of the 
 permanent club committee. 
 
 At a meeting of the provisional committee held 
 two days later (7th January), at which, again, the 
 plaintiff, but neither of the defendants, was present, 
 it was resolved that the secretary of the club should 
 
 183 
 
receive a salary of fJ2 a week, to include out-of-pocket 
 expenses. 
 
 Apparently the club then became fully fledged, 
 for the next meeting to which my attention is drawn 
 is a meeting of the club committee on 21st January. 
 Plaintiff and the defendant Lipscomb attended, but 
 not the defendant Eames. The resolution of 7th 
 January relating to the secretary's salary was at this 
 meeting rescinded, and at a meeting of the committee 
 on 28th January (the plaintiff and Lipscomb, but not 
 Eames, being present) it was resolved that the plaintiff, 
 as secretary, should receive a salary of ^^80 per annum, 
 payable quarterly, from 21st December, 1918. My 
 above calculation of ^15 16s. Od. is based on this 
 resolution. 
 
 The first annual general meeting of the club was 
 held on 1st March, 1919, and both defendants were 
 present. The defendant Lipscomb and five other 
 members were elected as the club committee for the 
 ensuing year, the defendant Eames was elected 
 President of the club, and the appointment by the 
 committee of the plaintiff as secretary was confirmed. 
 Eames was not one of the above five members, but 
 under No. 21 of the club rules the President is an 
 ex-officio member of the committee. 
 
 The next material meeting is one of the club com- 
 mittee on 22nd July, 1919, the plaintiff and Lipscomb, 
 but not Eames, being present. At this meeting the 
 defendant Lipscomb's resignation as a member of the 
 committee was tendered and accepted. If he was one 
 of the club Trustees, he retained that office. 
 
 Yeomans stated that he was in constant touch 
 with Lipscomb down to the time of the latter' s resig- 
 nation from the committee, and in frequent communi- 
 cation with Eames, and took instructions as to his 
 duties from both of them. He also states that his 
 
 . 184 
 
salary as club secretary was paid down to 29th Sep- 
 tember, 1919, out of the club funds, by cheques drawn 
 on the club banking account, the cheques being signed 
 and handed to him by I^ipscomb down to the time of 
 his resignation. In respect of the period between the 
 latter date and 29th September, plaintiff's salary as 
 club secretary was paid by cheque drawn on the account 
 — not of the club — but of the ' Division.' 
 
 These are, I think, the material facts, and the 
 conclusion to which I have come on the evidence is 
 that the notion of plaintiff being employed by the 
 defendants, or any other members or member of the 
 club personally, was never in the mind of the plaintiff — 
 or anyone else — at any material date . I think plaintiff, 
 as one of the persons actively concerned in the forma- 
 tion of the club, took his chance of the funds of the 
 club proving sufficient to discharge the outgoings, 
 including his salary, and being so appUed, and never 
 looked to the personal responsibiUty of any member 
 of the club. He entirely fails to discharge the burden 
 which is on him of estabKshing a contract of employ- 
 ment between himself and the defendants, or either of 
 them. I think his position was analogous to that of 
 the plaintiff in Kerridge v. Hesse (9 C. & P. 200), and 
 directing myself in accordance with the summing-up 
 of BramweU, B., I come to a similar conclusion as did 
 the jury in that case, with the result that the defendants 
 must have judgment in respect of Yeomans' claim. 
 
 Then as to Mullens : — The amount of his claim is 
 not disputed ; the sole question is as to Uability. In 
 April, 1919, the plaintiff handed to Yeomans, as 
 secretary of the club, an estimate for alterations at 
 the club premises. At a meeting of the club com- 
 mittee on 29th April, lyipscomb being in the chair, 
 and ;Eames not being present, it was resolved that the 
 plaintiff's estimate should be accepted. On 30th 
 
 1?5 
 
April Yeomans, in his capacity of secretary, wrote the 
 plaintiff instructing him on behalf of the committee 
 to carry out the work included in the estimate. The 
 work having been done, a bill was sent in against the 
 club, the estimate also having been addressed to the 
 club. 
 
 The case against Bames is grounded entirely on 
 him being one of the Trustees and a member of the 
 committee. Assuming (contrary to his contention) 
 that he held these offices when the work in question 
 was ordered and carried out, I do not think it sufficient 
 to establish liability against him. As lyord Esher, M.R., 
 points out in Steele v. GouHey (3 T.L,.R. 772), it is not 
 enough that the defendant is a member of the managing 
 committee, but the question is, " did he authorise 
 or acquiesce in the order given" ? The defendant 
 Bames, as I have said, was not present when plaintiff's 
 estimate was accepted, nor is it the case of an order 
 for goods required for the every-day use of the club, 
 where an implication of authority or of ratification 
 is somewhat easily raised (see e.g., Stansfeld v. Ridout, 
 5 T.Iy.R. 656). Whatever the position may be as 
 regards other members of the committee, I am of 
 opinion on the authorities that a man who merely 
 becomes an ex-officio member of a club committee 
 by accepting the presidency of the club does not thereby 
 make the committee (whose meetings he seldom if 
 ever attends) his agent to order expenditure of a nature 
 such as that in question here. There is no evidence 
 that defendant Barnes in any way concerned himself 
 with the building work, and as against him the action 
 fails. On this point I base myself mainly on the 
 judgments in Todd v. Emly (8 M. & W. 505) ; see also 
 Overton v. Hewitt (3 T.I,.R. 246). 
 
 The defendant L,ipscomb is in a different position. 
 He was a direct party to the order, and cannot say he 
 
 186 
 
acted merely as agent for the club ; for the club, not 
 being a legal entity, could not enter into a contract. 
 Prima facie the members giving such an order are 
 personally liable : Todd v. Emly (supra) ; Burls v. 
 Smith (7 Bing 705) . Unless, therefore, it can be said, 
 as defendants' counsel contended, that the Plaintiff 
 Mullens undertook the work on terms that he should 
 look merely to the club funds for payment, I think he 
 is entitled to recover from the defendant I/ipscomb, 
 as a party to the giving of the order. I drew the 
 inference desired by the defendants without difficulty 
 in the case of Yeomans, who was a member of the 
 club committee when he first took his appointment, 
 and who possessed full information as to the finances 
 and prospects of the club, and some degree of control 
 over its affairs, but I should come to the same conclu- 
 sion much less readily in the case of an outside trades- 
 man. Reliance was naturally placed by defendants' 
 counsel on the answer obtained from Mullens in cross- 
 examination that he " expected to be paid by the ' 
 club," but I think that answer may be pressed too far. 
 It is an answer which nine tradesmen out of ten, 
 accepting an order from a club committee, would give, 
 and in the ordinary course of things such orders would 
 be met by payment out of the club funds. Taking 
 the evidence as a whole, the answer Mullens gave is 
 not to my mind tantamount to an admission that he 
 accepted the order in the sense that it was to impose 
 no personal liability on anyone. I confess that in 
 this connection the case of Overton v. Hewett {supra) 
 gives me some little difficulty, but having regard to the 
 judgments in Steele v. Gourley, in the Court of Appeal, 
 my view is that liability is established as against the 
 defendant Lipscomb, he failing to bring himself within 
 the category referred to by Lord Esher in Burnett v. 
 Wood (4 T.L.R. 278), of persons giving orders, who 
 
 187 
 
say distinctly at the time that they do not accept 
 personal liability. 
 
 There will be judgment for the plaintiff Mullens 
 against the defendant Lipscomb for ^38 15s. Od. In 
 all' other respects the action is dismissed. Costs in 
 every case will follow the event, and on taxation item 
 86 will be allowed. Liberty to apply as to costs, if 
 found necessary, reserved. 
 
 Before parting with the case, I desire to point 
 out that at the trial there was considerable waste of 
 tihle owing to the way in which the case was prepared 
 (or not prepared). For County Court litigation the 
 Slims at stake were substaritial, and from the nature of 
 the case discovery was plainly called for. I have, 
 ihofeover, often, without reluctance, certified for 
 advice on evidence where the need for it was less 
 obvious. If there had been mutual discovery, and an 
 agteed copy of documents had been prepared before- 
 hand for the use of the Court, I am satisfied the relevant 
 matters (and no others) could have been presented 
 in far less time, to the advantage of other Utigants; 
 and it would have been easy instead of difficult to 
 follow the arguments, on which the points in issue 
 ttiairilv turn. 
 
 188 
 
BARTON V. SH^PPARt). 
 
 Statute of Limitations — Sufficiency of Acknowledgment — Conditional 
 Offer. 
 
 Since Tanner v. Smart (6 B. & C. 603), the acknowledgment 
 • of a debt, sufficient to take it out of the Statute of Limitations, 
 must amount to a new promise to pay. And if an acknowledg- 
 ment is accompanied by a conditional promise to pay, fulfilment 
 of the condition is necessary to prevent the Statute operating. 
 
 JUDG-MENT. 
 
 The plaintiff brings this- action' to recover 
 16/. Os. 7d., the price of goods sold and' delivered. 
 The only defence raised is the statute of limitations. 
 It was admitted by the plaintiff that the goods were 
 supplied more than six years before action, but he 
 reHed on a letter written by defendant to plaintiffs 
 solicitor under date 2 April, 1915, which it is contendfed 
 is an acknowledgment sufficient to take the case out 
 of the statute. 
 
 On 30 March, the plaintiff's solicitor wrote 
 applying for payment of the 16/. Os. I'd. and 
 threatening proceedings if it were not paid forthwith. 
 In his reply of 2 April, the defendant wrote :— " Am 
 " sorry I am unable to settle Mr. Barton's claim. 
 " Through the war things are very quiet iiideed and 
 " having to pay ready money for almost everything 
 " I cannot possibly do more than malLe an offef of 
 
 " \l. a month If you will kindly accept 
 
 " this I will do my very best to send the money 
 " regularly." On 16 May, the soUcitor wrote the 
 defendant stating that the plaintiff was prepared 
 to accept monthly instalments for the present, but 
 that later on more substantial payments would be 
 required. 
 
 On the question of the sutficiency of acknowledg- 
 ments, the cases show a remarkable divergence of 
 
 189 
 
judicial opinion. At one period, an admission of the 
 
 creation of the debt and its non-payment was regarded 
 
 as sufficient. This view, however, was no longer 
 
 tenable after the considered judgment of the Court 
 
 of King's Bench in Tanner v. Smart (6 B & C, 603). 
 
 I cannot hope to reconcile the cases, but the principle 
 
 which, since Tanner v. Smart, appears to have prevailed 
 
 is that to take a case out of the statute there must be 
 
 a new promise to pay the debt, such promise being 
 
 the effective cause of action. If it is express, there 
 
 is of course no difficulty ; and when there is a simple, 
 
 unconditional acknowledgment of the debt, a general 
 
 promise to pay is implied. Difficulty arises where 
 
 an acknowledgment is accompanied by a conditional 
 
 promise : in such circumstances the obUgation does 
 
 not arise unless and until the condition is fulfilled : 
 
 see Tanner v. Smart {supra) ; Hay don v. Williams 
 
 (7 Bing. 163) ; Edmunds v. Downes (2 C. &M. 459). 
 
 A case of this kind recently came before lyush, J., in 
 
 Brown v. Mackenzie (29 T.Iy.R. 310) and the governing 
 
 principle is stated in his judgment : — "If the debtor 
 
 ' unconditionally acknowledges that the debt is owing, 
 
 ' and says nothing more, that is equivalent to a promise 
 
 ' to pay it, because one infers the promise to pay 
 
 ' from the unconditional acknowledgment. But if 
 
 ' there is coupled with the acknowledgment of the 
 
 ' debt a conditional promise to pay, then of course 
 
 ' the absolute promise which would otherwise be 
 
 ' impHed is excluded ; and the express limited 
 
 ' promise, being inconsistent with the unHmited implied 
 
 ' promise, the latter is cut down and only the hmited 
 
 ' promise to pay remaiiis." 
 
 The earUer part of the defendants' letter in the 
 present case amounts, in my view, to an acknowledg- 
 ment of the debt, but it must be read with the words 
 which follow ; which, whatever their right interpreta- 
 
 190 
 
tion may be, exclude an implied general promise. 
 As was pointed out by Pollock, C.B., in Collis v. 
 Stack (1 H. &N. 607), the question in these cases is 
 whether statements as to time of payment are merely 
 excuses for not paying, or conditions on which alone 
 payment is promised. Do the concluding words of 
 defendant's letter contain a definite promise to pay an 
 admitted debt by instalments, or a conditional promise 
 to pay? On consideration, I am of opinion that the lat- 
 ter is the true view. It may be contended with some 
 force, that there is not even a conditional promise : see 
 Rackham v. Marriott (1 H. & N. 234). At any rate, 
 I think the most favourable construction for the 
 plaintiff of the letter, read as a whole, is to this effect : — 
 ' I admit I owe the sum you claim, but I am not in 
 a position to discharge the debt. If, however, you 
 are wilHng to accept the amount by monthly instal- 
 ments of ;£1, I will make payment in that way.' This 
 offer was not accepted, and that being so there is no 
 promise. In Brown v. Mackenzie, l/ush, J., saw 
 his way to distinguish the language which he had to 
 consider from that in Tanner v. Smart, and I am by 
 no means unwilUng to do so here ; but, though I am 
 certainly not desirous of extending the principle there 
 laid down, it is a case of authority, and being unable 
 to distinguish the language used in this case it plainly 
 binds me. Defendant must have judgment and costs 
 will follow the event. 
 
 191