cleansing the ornamental water. The defendant in answer, by letter dated 17th Sept. requested the plaintiff to take no steps till he heard further from him, and on the 20th Sept. wrote to say that only a small portion of the water required cleansing in order to abate the nuisance, and requested the plaintiff to state to the magistrates, in answer to the summons, that what was needful would be done by him at once, and stated that if the plaintiff had already begun the cleansing of the whole of the water on his responsibility he would have nothing to do with it.

On the 18th Sept. the plaintiff entered into an agreement with a person of the name of Dyson for removing all the mud from the ornamental water, to the satisfaction of the inspector of nuisances, for the sum of 100%. On the 22nd Sept. the plaintiff wrote the defendant giving notice of his intention to continue his tenancy.

The defendant, in his answer to this letter, said: "With regard to the river business, I have nothing further to say. As you have begun it on your own responsibility it is taken out of my hands altogether." Dyson commenced the work on the 19th Sept. 1866, and finished it on Oct. 11.

The whole of the work done by midday on Sept. 24 consisted of the removal of seven-elevenths of the mud which caused the deposit near the cottages, and 137. 13s. was the cost of this portion. On the 24th the plaintiff attended, pursuant to the summons, before the justices. The justices made an order in the following terms:

To the occupier of Stoke College, situate at Stoke, nex Clare, in the county of Suffolk, or to the guardians of the poor of Risbridge Union, of the counties of Suffolk and Essex, or to their servants and agents, and to all whom it may

concern:

County of Suffolk to wit. Whereas on the 10th day of September next complaint was made before the Rev. William Mayd, clerk, one of Her Majesty's justices of the peace in and for the county stated in the margin, by John Smoothey, of Clare, in the said county, one of the inspectors of nuisances in the said union, on behalf of the said guardians of the poor of the said Risbridge Union, that in and upon certain premises, situate at Stoke next Clare aforesaid, in the district under the Nuisances Removal Act for England 1855, of the complainant above named, the following nuisance there existed, to wit, a great stench arose from the decayed vegetable matter and mud in the ornamental water at Stoke College, in the said county of Suffolk, at the back of certain Cottages on the said premises, situate by the side of the road leading from Stoke aforesaid to Ashen, and which said stench, is a nuisance and injurious to health, and that such nuisance is caused by an accumulation of such decayed matter and mad in the said water, and that the said nuisance was caused by the default of the occupier of the said premises. And whereas R. W. Bird, the occupier within the meaning of the said Nuisances Removal Act for England 1855, hath this day appeared before us justices, being two of Her Majesty's justices in and for the county aforesaid, sitting in petty sessions at our usual place of meeting, to answer the matter of the said complaint: Now upon proof here had before us that the nuisance so complained of doth exist on the said premises, we, in pursuance of the said Act, do order that the said occupier, within twenty-five days from the service of this order, or a true copy thereof according to the said Act, do remove the said decayed vegetable matter and mud in the said ornamental water, so that the same shall be no longer a nuisance or injurious to health as aforesaid, and if the above order for abatement be not complied with, then we do authorise and require you, the said guardians of the poor of the said Risbridge union, from time to time to enter upon the said premises and to do all such works, matters and things as may be necessary for carrying this order into execution according to the Act aforesaid.

The plaintiff paid H. Dyson the sum of 10). pursuant to the agreement, and 57. to the inspectofor his superintendence, which said sums were rea sonable sums for the work done. The cost of the work done in removing the deposit near the Cottages was 217. The cost of removing the other deposit which was at the other end of the water was 167. The court were to have power to draw inferences of fact, and the pleadings were to be considered as part of the case. The question for the court was whether the plaintiff was entitled to

[Ex.

recover from the defendant the said sums of 1007. and 57., or any and what part of them.

The pleadings, so far as material, were as follows. The first count of the declaration set out the agreement, and averred that certain taxes and charges became payable in respect of the premises, yet the defendant did not pay and discharge them.

The second count was a similar count, and the third count was for work done and money paid for the defendant at his request.

The defendant pleaded, inter alia, that the said taxes and charges did not become payable as alleged. And to the third count, never indebted.

The Nuisances Removal Act 1855 (18 & 19 Vict. c. 121), ss. 12, 14, 19, and 20, enacts as follows: Sect. 12:

In any case where a nuisance is so ascertained by the local authority to exist, or where the nuisance in their opinion did exist at the time when the notice was given, and although the same may have been since removed or discontinued, is in their opinion likely to recur or to be repeated on the same premises, or any part thereof, they shall cause complaint thereof to be made before a justice of the peace, and such justice shall thereupon issue a summons requiring the person by whose act, default, permission, or sufferance the nuisance arises or continues, or if such person cannot be found or ascertained, the owner or occupier of the premises on which the nuisance arises, to appear before any two justices in petty sessions assembled, at their annual place of meeting, who shall proceed to inquire into the said complaint, and if it be proved to their satisfaction that the nuisance exists, or did exist at the time when the notice was given, or if removed or discontinued since the notice was given, that it is likely to recur or to be repeated, the justices shall make an order in writing under their hands and seals on such person, owner, or occupier for the abatement or discontinuance and prohibition of the nuisance as hereinafter mentioned, and shall also make an order for payment of all costs incurred up to the time of hearing or making the order for abatement, or discontinuance, or prohibition of the nuisance.

Sect. 14:

Any person not obeying the said order for abatement shall, if he fail to satisfy the justices that he has used due diligence to carry out such order, be liable for every such offence to a penalty of not more than 10s. per day during his default, and any person knowingly and wilfully acting contrary to the said order of prohibition, shall be liable for every such offence to a penalty not exceeding 20s. per day during such contrary action, and the local authority may, under the power of entry given by this Act, enter the premises to which the order relates, and remove or abate the nuisance condemned or prohibited, and do whatever may be necessary in execution of such order, and charge the cost to the person on whom the order is made as hereinafter provided.

Sect. 19.

.

All reasonable costs and expenses from time to time incurred in making a complaint or giving notice or in obtaning an order of justices under this Act, or in carrying the same into effect under this Act, shall be deemed to be money paid for the use and at the request of the person on whom the order is made and in case of nuisances caused by the act or default of the owner of the premises, the said premises shall be and continue chargeable with such costs and expenses and also with the amount of any penalties incurred under this "Act until the same be fully discharged, provided that such costs and expenses shall not exceed in the whole one years' rack rent of the premises. And such costs and expenses and penalties, together with the charges of suing for the same, may be recovered in any County or Superior Court or if the local authority think fit, before any two justices of the peace.

Sect. 20. provides for proceedings before justices to recover expenses.

The Sanitary Act 1866 (29 & 30 Vict. c. 90) s. 34, provides as follows:

It shall be lawful for the nuisance authority, at their discretion, to require the payment of any costs or expenses which the owner of any premises may be liable to pay under the said Nuisance Removal Acts or this Act, either from the owner or from any person who then or at that time thereafter occupies such premises, and such owner or occupier shall be liable to pay the same, and the same shall be recovered in manner authorised by the Nuisance Removal Acts and the owner shall allow such occupier to deduct the sums of money which he so pays from his rent from time to time becoming due in respect of the said premises provided also that nothing therein contained shall be taken to affect any contract made or to be made between any owner or occupier of any house, building, or other property whereof it is or may be agreed that the occupier shall pay or discharge all rates, dues, and sums of money payable in respect of such house, building, or other property, or to affect any contract whatsoever between landlord and tenant.

Hon. A. Thesiger (Denman, Q. C. with him) for the plaintiff. The question is whether the landlord is liable to repay the plaintiff the whole or part of the sum of 105. I contend that under the agreement it was the landlord's duty to cleanse this ornamental || water; and if that be so the whole sum is recoverable. If that be not so it will be contended that the order only referred to the deposit near the cottages, and so only the expense of removing that was a charge within the agreement; but I shall contend that the whole of the work done with respect to the removal of tht two deposits was within the order and necessary to prevent a recurrence of the nuisance. With respect to the question whose duty it was to cleanse the ornamental water, I say that by the agreement it was the landlord's duty to do all that was necessary to keep the premises in tenantable repair. We must look what the intention of the parties was; the lease was a lease for a short period of a furnished house, and it is usual in such cases for the landlord to take such charges on himself. Only two things are specified which the tenant is to do, and they are just those small matters which occur from day to day, such as cleaning choked-up gutters, which it is necessary for the occupier to attend to that the premises may not be injured. This it must be remembered was only an agreement for a lease, and would not specify so fully the intentions of the parties as a regular indenture of demise. [KELLY, C. B.-You have no breach in your declaration for not cleansing out the water. Can you treat the expense of cleansing as money paid? Clearly as to so much as was within the order; that was paid by compulsion of law. In Davidson's Precedents, vol. 5, part 1, 248, under the head of "covenant to repair and keep in repair," a covenant involving the obligation to cleanse, is given. In the second schedule to the 8 & 9 Vict. c. 124, the form of words in column 1 is to have the effect of the words in column 2, and the third form in column 1 is "and to repair;" and we find under the corresponding number in column 2 that it includes cleansing. This water is a part of the premises, and the expression "repair" must be construed secundum subjectam materiam: (Barratt v. The Duke of Bedford, 8 T. R. 602.) The payment made by the plaintiff, or at any rate all that was paid under the order, constituted a charge on the premises within the meaning of the agreement, by virtue of the 18 & 19 Vict. c. 121, ss. 12 & 19. [CHANNELL, B. -Is it not a difficulty in your way that the order of justices finds that the nuisance arose by the plaintiff's default?] That, my lord, is only for the purposes of the Act, and as between the plaintiff and the public. [KELLY, C. B.—On whom is the charge ultimately to fall by the Act?] The policy of the Act appears to be that the order may be made upon occupier or owner, but that the liabilities of the parties under contracts as between themselves shall not be interfered with. [KELLY, C. B.-It would seem then to come back to the question who, under the agreement, was bound to cleanse, &c. ?] This cleansing of the water was not a work that would want doing constantly, but only at long intervals, and thus it was in the nature of a work for the permanent benefit of the premises; now all the cases have been cases decided with respect to covenants by tenants, and the covenants have always been construed most strongly against the covenantors, even when, as in many of the cases, the expenses were incurred for the permanent benefit of the premises; à fortiori where the landlord is covenantor such charges ought to be borne by him:

Sweet v. Seager, C. B., N. S., 119;
Waller v. Andrews, 3 M. & W. 312;
Payne v. Burridge, 12 M. & W. 727.

In Tidswell v. Whitworth, L. Rep. 2 C. P. 326 15 L. T. Rep. N. S. 574; 36 L. J. 103, C. P.; the

[Ex.

case was distinguished from Sweet v. Seager, on the ground that there was a penalty for a breach of a duty imposed by an Act of Parliament, and no charge on the premises. In Thompson v. Lapworth, L. Rep. 3 C. P. 149; 17 L. T. Rep. N. S. 507; the court distinguished the case of Tidswell v. Whitworth, and held that the charge was within the covenant. [BRAMWELL, B.-That is a very strong case for you for if it was rightly decided it would seem to show that such a charge was within the words here used, or if wrongly decided that the landlord ought to pay such a charge. KELLY, C. B.-Suppose there had been an express covenant by the tenant to cleanse the water, and by breach of that covenant, these expenses had been incurred, according to your contention the landlord would have to pay them.] No; because that would show that the landlord was not intended to bear such a charge. [KELLY, C. B. Does it not all come to this, who is under the agreement to cleanse the water?] I say when the whole scope of the agreement shows the landlord was to repair, the word "charge" is sufficiently large to cover these expenses. [KELLY, C. B.-There is a third case which may be supposed; suppose there is no contract as to the matter, and the water becomes a nuisance, and neither party being bound to touch it, the public authority interferes, you say that then there may be a charge within this agreement?] It cannot be argued that the plaintiff is entitled to recover as a "charge" the part of the sum expended on the removal of the mud other than the two deposits which were nuisances, so as to that, if the landlord is not bound to cleanse under the covenant to repair, he must fail. He must, however, at any rate be entitled to recover the 77. spent in removing the deposit near the cottages after the order was made. He also cited

Hurst v. Hurst, 4 Ex. Ch. 571.

J. Dixon (with him Garth, Q. C.) for the defendant. [KELLY, C.B.-You may confine your argument to the expenses connected with the removal of the deposit near the cottages. We are all of opinion that the order of the nuisance authorities was not intended to relate to anything but that, and that the rest of the expenses were clearly not recoverable, no obligation to cleanse the water being thrown on the landlord by the agreement. You must therefore direct our attention to the statute, that we may see if this payment was compulsory.] The question is, whether this was a "charge payable in respect of the premises. Charge payable in respect of the premises must be something ejusdem generis with rates, taxes, and tithes. It really comes to this: Is a person who occupies premises, and is found to have caused a nuisance by his own default, entitled to treat the expenses occasioned in complying with an order of the nuisance authority as a charge within such a covenant? The person who is in the first instance to be summoned under the Nuisances Removal Act is the person by whose default the nuisance arises. In this case that was the occupier, and then an order is to be made on him for removal of the nuisance. It is only in the event of this order being disobeyed, and when the nuisance arises by default of the owner, that the Act makes the expenses of carrying the order into effect a charge on the premises. [BRAMWELL, B.— This is really only like a case of a foul pig sty, or a nuisance of that sort.] There was no default on the owner's part here. (He was then stopped by the Court.)

KELLY, C. B.-This is an action brought against the defendant to recover a sum of money paid by the plaintiff, the tenant of certain premises of which the defendant was the owner, for the expenses of cleansing a piece of ornamental water The claim

was first put on the ground that the landlord was bound to cleanse this water under an agreement by which the landlord was to keep the premises in repair, and that it was a breach of that agreement to allow the mud to accumulate so that the water became a nuisance to the occupier. We are of opinion that this is not so, and the duty of cleansing this piece of water was not cast upon the defendant by the contract. The piece of water was part of the demised premises, and it might be incumbent on the landlord under the contract to keep the premises in repair, to keep the water from bursting its bank, or, if there be any sluices or machinery connected with it, to keep them in order; but there being no such words in the contract as "cleanse" or "drain," we think neglect to cleanse the water is not a breach of any stipulation of the agreement. This disposes of the whole claim except the sum of 214, which is claimed as payable upon other grounds. It appears that an accumulation of mud took place in one portion of the water, which became a nuisance, and proceedings were taken with respect to that under the Nuisances Removal Act. We think that those proceedings applied only to the deposit at the back of the cottages; and it seems that with respect to that information was given to the local authorities, and proceedings were instituted. The magistrates made an order for the abatement of the nuisance, and for the purpose of the removal of this deposit certain expenses were incurred by the plaintiff, some before and some after the order, amounting in all to 217. These expenses the plaintiff now contends he is entitled to recover under that part of the agreement by which the landlord agrees to pay and discharge all rates, taxes, tithes and other charges payable in respect of the premises. The plaintiff contends that, this order having been made, and these expenses incurred in complying with it, which were paid by him, these expenses constituted a charge within the meaning of the agreement, and one which the defendant was therefore liable to pay. But on looking to the words of the Act it is clear that these expenses never constituted a charge payable in respect of the premises. To make the sum of money payable in respect of the expenses of removing a nuisance a charge in respect of the premises, it is necessary to show that the nuisance arose from the act or default of the owner of the premises. The case fails on that point, for it is not shown that the nuisance here arose from the defendant's default. There was no duty cast upon him to cleanse this piece of water, either by the agreement or implied at common law. But even if it had been otherwise, to make these expenses a charge on the premises an order must have been made on the owner as the person causing the nuisance, and that must have been disobeyed, and the authorities must have removed the nuisance themselves. Then the expenses incurred by them in so doing would have constituted a charge on the premises. As the nuisance was here removed by means of expenditure on the part of the plaintiff, and by him alone, and not by the authorities, these expenses do not by the terms of the Act become a charge on the premises. Even supposing the expenses of the removal might have been a charge upon the premises, if the plaintiff had been forced to pay them, I do not see how, unless the plaintiff were compelled by law to pay them, he could recover them against the defendant. The plaintiff has voluntarily paid this money in carrying out the order. He has paid the money in his own wrong, and therefore cannot recover against the defendant under this agreement. There being no liability to cleanse this water imposed by the contract either upon the plaintiff or defendant, it seems to me that the plaintiff, as the occupier of the premises for a term of years, was the person who

[Ex.

ought to have removed this accumulation of mud, and cleansed the ornamental water if dissatisfied with the state of it; and so our decision is really in accordance with the merits. For these reasons our judgment must be for the defendant.

BRAMWELL, B.-I am of the same opinion. The agreement to repair does not apply to the cleansing of this piece of water; that immediately disposes of all the claim but that part of it which relates to the removal of the deposits of mud which were nuisances. Now as to that, it appears to me that the order of the justices only related to the deposit near the cottages, and that disposes of all the claim but 217. spent in the removal of that deposit. Of that I do not think the expense of work done before the order can be recovered, and so only about 77. is left. This Mr. Thesiger's argument made me at first think to be recoverable; but when one looks to the nature of the nuisance, one sees that it is what may be termed an occupation nuisance, like a pigsty or a mixen, and is clearly not a nuisance the expense of removing which ought to be a charge on the premises, or which is a charge on the premises, within the meaning of the agreement or the Act of Parliament. If the nuisance had been created, so to speak, by the act of nature, as by the overflowing of a brook which had left an accumulation of mud, it might possibly have been different. Such a nuisance could not have been said to be caused by the default of the occupier, and the defendant might have been chargeable with it. Here we have nothing of the kind; and really this is nothing but an order on the occupier to remove a nuisance which in one sense he has created.

CHANNELL, B.-I also am of opinion that our judgment must be for the defendant. The pleadings are made part of this case, and in dealing with it we are bound to look to them. There is no breach of the covenant to repair complained of; but were it otherwise, I entirely agree with the rest of the court that the words relied on in the agreement would not oblige the landlord to cleanse. The case has been argued on this point by Mr. Thesiger in the only way in which it could be, viz., that, the tenant only expressly covenanting to do two small matters and the landlord covenanting to repair, the landlord must be taken to have covenanted to do everything necessary upon the premises except those two small matters. I do not, however, think that argument can be sustained. That disposes of all the claim but about 211. The way in which the declaration is framed with respect to that claim is this: an agreement on the part of the defendant to pay all rates, taxes, tithes, and other charges payable in respect of the premises is set out, and then it is alleged that certain charges became payable which, the defendant having neglected to pay, the plaintiff is entitled to recover. Now I think, if no order of justices had been made, there would have been no pretence for saying that these expenses would have been a charge within the meaning of the agreement. We must, therefore, look to the terms of the order, and I am unable to see anything in it which makes these expenses a charge upon the premises. It is quite consistent with the terms of the order that this was a tenant's nuisance, and not one arising from the default of the landlord. The order itself says that it was caused by the default of the occupier. Moreover, the plaintiff paid this money voluntarily, and so I do not see how he can put it as money paid for the defendant.

PIGOTT, B.-I am of the same opinion. I do not see how the cleansing of this water can be brought within the covenant to repair. With respect to the expense of removing the nuisance, I see nothing in

the Act of Parliament compelling the landlord to pay. The plaintiff seems really to have been a volunteer throughout, and I do not see how those expenses which he has voluntarily defrayed can be a charge payable in respect of the premises within the meaning of the agreement.

[V.C. M.

denture dated the 10th Nov. 1855, at 1457. 12s. 6d. per annum for fourteen years and three-quarters less five days, and thenceforward the entire rent of Mrs. Treacher's moiety was 214. 1s. 6d, subject to the trusts of the settlement; made up of a moiety of 691. 6s., and 145l. 12s. 6d., and 334. 16s. a moiety of the weekly payments, and after deducting 907. 8s., a moiety of the rent reserved on the entirety, there remained the net sum of

V.C. MALINS' COURT. Reported by G. T. EDWARDS, Esq., Barrister-at-Law.

Friday, July 24, 1868.

Re TREACHER'S SETTLEMENT. Practice-Petition-Produce of leaseholds-Metropolis Improvement Act 1863.

T. being entitled to a moiety in certain leaseholds, that interest was settled on her marriage (after reserving 401. a year thereout) on herself and husband and children. The Metropolitan Board of Works took the property under the Metropolis Improvement Act 1863, and paid the money into court. On petition to deal with the fund, ordered that sufficient of the purchase money should be invested to produce the 401. a year, and the residue being also invested, and there being six and a quarter years of the lease to run, two twenty-fifths should be sold every half year to be paid to T. for her life, and also the dividends.

This was the petition of Mary Treacher (by her next friend) and Benjamin Treacher her husband, seeking the sanction of the court to the application of the produce of certain leasehold property, taken under the provisions of the Metropolitan Improvement Act 1863, with which the Lands Clauses Consolidation Act 1845 was incorporated, in a somewhat peculiar manner. The petition stated that in Oct. 1848 Mary Treacher (then Mary Hodgkinson) was possessed of an undivided moiety of a piece of ground, with messuages and warehouses thereon, on the north side of Upper Thames-street, London, held under a lease dated the 6th Sept. 1815, for sixty years from the 29th Sept. 1814, at 180/. 16s. per annum, subject as to part of the entirety to an under-lease dated the 10th Dec. 1817, for fifty-seven years, wanting seven days, from the 29th Sept. 1817, at 691. 6s. per annum, and subject as to the undivided moiety in the other part to an under-lease dated the 26th April 1839 for twenty-one years from the 1st Jan. 1839, at 145l. 12s. 6d. per annum, and subject as to the remainder to certain holdings at weekly rents, producing,in the whole, 677. 2s. per

annum.

On the 6th Oct. 1848, a settlement was made on the marriage of the petitioners, whereby Mrs. Treacher's undivided moiety in the above property; and the entirety of the rent of 145l. 12s. 6d., and all the estates therein, were assigned to trustees, upon trust to retain and invest 407. per annum, to be held on trusts after-mentioned; and during Mary Treacher's life to pay the residue of the rents and dividends of the trust, premises, stocks, funds, and securities to such persons as she should appoint, and subject thereto to her separate use, and after her decease to her husband for life, and after the decease of the survivor to all their children equally, with benefit of survivorship, at twenty-one or marriage, with a general power of appointment to Mary Treacher, and an ultimate limitation to her next of kin according to the statute. The underlease of the 26th April 1839 having expired, the property comprised in that lease was re-let by in

There

Deducting from this the 407. to be retained as aforesaid, the residue was 831. 13s. 6d., payable to Mary Treacher for life to her separate use. was issue of the marriage three children, two of whom died infants and one (an infant, and respon dent) only survived. Under the Metropolis Improvement Act 1863, the Metropolitan Board of Works was empowered to take lands, and, in exercise of such power, took the piece of ground comprised in the settlement, which was valued at 8007, and that sum on the 11th of June 1868 was paid into court by the said Board of Works in the matter of the Act. On

the 1st July 1868 the surviving trustees of the settlement assigned the premises to the board of works for all the residue of the term of sixty years therein subject to the reserved rent and under-lease. Rent had been received from the land taken, up to the 24th June 1868, and the question now was how the 8004 circumstances, this petition was presented, praying paid into court should be dealt with? Under these

of the rents, as, at 401. per annum, would have been that 2507. (being the aggregate amount of so much payable between the 24th June 1868 and the 29th Sept. 1874, the expiration of the lease, if the land had not been taken) might be invested in 37. per cents and carried to the account of the "trusts of the settlement of Benjamin Treacher and Mary his wife 404 per annum," and that the dividends might be paid to her for her separate use until further order; that 5501. (the residue of the 8007.) might be invested in like stock to an account "the settlement of Benjamin Treacher and Mary his wife's leasehold;" that a sum equal to two twenty-fifth parts of such stock, might, so long as the stock should suffice for that purpose, be sold on the 25th Dec. and the 24th June in every year during the life of Mary Treacher; and that if she should be living on the 29th Sept. 1874 the remaining one twenty-fifth part might be sold and the proceeds of all such sales paid to Mary Treacher on her separate receipt till further order. That the dividends of such last-mentioned stock might be paid to Mary Treacher for her separate use for life, or until further order, and that the Metropolitan Board of Works might pay the costs.

that the tenant for life was, under the 74th section Renshaw, in support of the petition, submitted of the Land Clauses Act, entitled, in addition to the dividends on the stock to be bought, to receive a proportionate part of the stock according to the referred to Re Money's Trusts, 2 Dr. & Sm. 94, and to number of years the lease had to run, and he Re Peleger, W. N., 1868, 190.

Walter Renshaw, for the trustees of the settlement and the infant child.

Casson for the Metropolitan Board of Works.

The VICE-CHANCELLOR.-I should have thought the better way would have been to have bought an annuity commensurate with the unexpired term; but as another mode of division has been authorised by other judges, I will follow that

course.

Order as prayed; costs according to the Act. Solicitors for all parties: Hodgkinson and Watts.

V.C. G.]

V.C. GIFFARD'S COURT. Reported by W. H. BENNET and R. T. BOULT, Esqrs, Barristers-at-Law.

July 21 and 22, 1868.

ABRAHAMS . THE MAYOR, ALDERMEN, &C., of LONDON.

Injunction-Holborn Valley Improvement Act 1864Claim for compensation-Tenant and under-tenants— Right to separate assessment.

Houses, of which the plaintiff was lessee, were required for the purposes of the Holborn-valley improvement. The corporation gave separate notices to the plaintiff and his under-tenants (to whom he had underlet floors and rooms), and he and they sent in separate claims for compensation. A præcipe was then issued by the Lord Mayor to the sheriff's to summon a jury to ascertain "the sum or sums of money to be paid for the purchase of, or as a satisfaction or recompense for, the value of the leasehold estate' to which the plaintiff and his under-tenants were entitled. The plaintiff objected to have his claim mixed up with those of his undertenants. On being informed that the præcipe could not be amended, he filed a bill for a declaration that he was entitled to have the amount of compensation due to him assessed separately, and for an injunction to restrain the defendants from taking further proceedings on the præcipe, and from taking possession of his premises until the compensation payable to him should have been separately assessed.

Iled, on motion for an injunction, that under the provisions of the Holborn Valley Improvement Act 1864, and the Acts incorporated therewith, the plaintiff was entitled to have a separate assessment by a separate jury, and a separate verdict, and also to a separate payment; and that, as under the præcipe his claim could not be considered separately, the court would interfere by injunction.

The plaintiff, Mr. Henry Abrahams, was the sub-lessee of two houses, 88, Snow-hill and 1, Farringdon-road, which were required for the purposes of the Holborn Valley Improvement. The houses were sublet in floors and rooms to several tenants to whom leases were granted by the plaintiff. In December 1867 the corporation, in whom the freehold of the houses vested, served the plaintiff with notice, dated 19th Dec. 1867 to treat for the purchase of his interest in the premises, and for ccpensation for any damage that he might sustain on account of the execution of the Holborn Valley Improvement Act 1864 (27 & 28 Vict. c. xli.). On the 20th Jan. 1868 the plaintiff sent in a claim for 10,5894, and his under-tenants had also sent in claims for sums amounting in all to 25,000. The corporation afterwards served the plaintiff with a notice, dated 10th July 1868, signed by their solicitor, in which they offered the plaintiff the sum of 5s. in satisfaction of his claim.

By the 5th section of the Holborn Valley Improvement Act 1864, all the provisions of the London (City) Improvement Act 1847 except sect. 19, and the Lands Clauses Consolidation Act 1845, except the last part of the Act, with respect to the purchase and taking of lands otherwise than by agreement, and the Lands Clauses Consolidation Acts Amendment Act 1860, were incorporated into the Act. And the same section specially enacted that for the purposes of the Act the term “this Act throughout the Improvement Act of 1847 should be read and have effect as meaning the Holborn Valley Improvement Act, and that for the same purposes the Improvement Act of 1847 should have effect subject to the following provision (amongst others): "The jury to be summoned under the 21st section of the London (City) Improvement Act 1847 shall

[V.C. G.

be a special jury, and shall be reduced to twentyfour in like manner as special juries are now reduced in the Superior Courts at Westminster."

The Lord Mayor had issued the following warrant or precept under his seal of office.

To the Sheriffs of the City of London.

By virtue and in pursuance of the Holborn Valley Improvement Act 1864, and the Acts incorporated therewith, or extended thereto, you are hereby commanded to take the necessary steps for having nominated forty-eight substantial and indifferent persons qualifled to serve ou special juries in the city of London, and to have such jurors, when so nominated, reduced in number to twenty-four in like manner as special jurors are now reduced in the Superior Courts at Westminster, and to summon, return, and empannel the said twenty-four jurors to come and appear before the Court of Mayor and Aldermen of the city of London, to be holden in the outer chamber of the Guildhall of the said city according to the custom of the said city, on Saturday the 25th day of July 1868, by ten of the clock in the forenoon of the same day, when and where a special jury of twelve men are to be ballotted for and called and drawn out of such persous so summoned, returned, and empanelled as aforesaid in such manner as special jurors for the trial of issues joined in Her Majesty's Courts at Westminster, are directed to bo diawn, upon their oaths to inquire of, open, and ascertain, and give a verdict for the sums or sum of moneys to be paid for the purchase of, or satisfaction, or recompense for the value of the leasehold estate and interest to which Henry Abrahams [The precept then set out the names of the plaintiff's under tenants] claim to be entitled of, and in the plan of parcel of ground, &c. viz., No SS, Snow-hill, and No. 1. Farringdon-roal, both in the parish of, &c aul which the mayor and aldermen and commons of the said city in

common council assembled are by virtue of the said Acts, and the Acts incorporated therewith, or extended thereto, empowered to take and use for the purposes thereof, and in respect of which the said mayor aldermen, and commons by

their daly authorised agent in writing gave due notice on the 19th day of Dec. 1867, and the 25th and 31st days of Jan. 1568 to the said Henry Abrahams, &c. (namin the under tenants), of their intention to take the same for the purposes of the said Act, and also of the compensation to be made to the said Henry Abrahams, &c. in respect of any improvements, fixtures, injury, or damage, whatsoever to be lost or sustained by them the said Henry Abrahams, as occupiers of the said premises, on account of the said Act, the particulars of which estate and interest, improvements, injury, or damage, together with the amount of the sum of money which the said Henry Abrahams, &c. . . . expected and were willing to receive in satisfaction or recompense for the value of such estate and interest, and also the amount of the sum which they expected and were willing to receive as compensation for such improvements, fixtures, injury, or damage respectively are contained in the statements in writing, dated the 16th day of Jan., the 21st, 22nd, 28th, and 29th days of Feb., the 4th, 14th, 17th, 18th, and 29th days of March, in the year of our Lord 1868, and delivered in pursuance of the said Act at the office of the comptroller of the said city.

The said precept then proceeded to set forth the statement of the plaintiff, and the statements of his under-tenants.

The plaintiff was afterwards served with a notice of trial, stating that a jury would be summoned, retained, and empanelled on the 25th July 1868, to assess the sum or sums of money to be paid for the purchase of, or in satisfaction, or recompense for, the value of the leasehold estate and interest to which the plaintiff and his under-tenants, and for the compensation, &c. (following the words of the precept), to be made to them.

The plaintiff objected to having the compensation payable to himself and his under-tenants assessed by one jury in one lump sum in the manner proposed by the precept, on the ground that he would be prejudiced and embarrassed by being joined with other claimants in the precept and notice of trial, and that his expenses of the trial would thereby be made much larger than they ought to be.

The plaintiff finding that he could not get the precept altered or amended, filed a bill, praying(1) for a declaration that he was entitled to have the purchase-money and compensation payable to him assessed and ascertained separately; (2) that the defendants might be restrained from taking further proceedings under the precept and notice of trial; and (3) "from taking possession of the plaintiff's premises until the purchase-money and compensation money payable to him should have been