Metropolis Local Management Act, 18 & 19 Vict. c. 120. ss. 69, 73; 25 & 26 Vict. c. 102. s. 106.—Notice of Action.

A person who has received notice from a Local Board of Health to drain his house, and in course of doing so commits a trespass by laying the drain-pipe in the land of another person, who thereupon brings an action against him, is not entitled to notice of action under s. 106. of 25 & 26 Vict. c. 102.

The declaration was in trespass for breaking and entering land of the plaintiff, in the High Street, Deptford.

The defendant pleaded, not guilty, by statutes 18 & 19 Vict. c. 120. ss. 69, 73; and 25 & 26 Vict. c. 102. s. 106.

Issue was joined on this plea.

At the trial, which took place at the Maidstone Spring Assizes, 1868, before Cockburn, C.J., it appeared that the defendant had laid a drain-pipe in and through some premises of the plaintiff, which lay at the back of his house. It was alleged by him that he had received notice from the local board of works to drain his house by making a drain into the common sewer, and that he had laid the drain-pipe in obedience to such notice. It was contended at the trial that he was entitled to notice of action under s. 106. of 25 & 26 Vict. c. 102, on the ground that he was a person acting under the direction of the board. No such notice had been given, and the Lord Chief Justice held that none was necessary.

The jury returned a verdict for the plaintiff, damages one farthing, and a rule was subsequently obtained, pursuant to leave reserved, calling upon the plaintiff to shew cause why that verdict should not be set aside and a nonsuit entered, on the ground that the defendant was entitled to notice of action under the statutes referred to in the margin of the plea.

Wharton shewed cause against the rule. -The defendant was not entitled to notice of action. The work which he had received notice to do he was bound to have done, and he cannot say that he was acting under the direction of the board in committing this

trespass. He must say so in order to be entitled to notice of action. The question arises under the 69th and 73rd sections of 18 & 19 Vict. c. 120, and under section 106. of 25 & 26 Vict. c. 102. Under the former act the board had power to order the defendant to make the drain, and by the 106th section of the latter act it is enacted that " no writ or process shall be sued out against or served upon, and no proceeding shall be instituted against the Metropolitan Board of Works, or any vestry or district board, or their clerk, or any clerk, surveyor, contractor, officer or person whomsoever, acting under their or any of their directions, for anything done or intended to be done under the powers of such board or vestry under the said acts or this act, until the expiration of one calendar month next after notice in writing shall have been served," &c. The words "any person whomsoever" are intended to apply to persons ejusdem generis with those named - clerks, surveyors, &c.: see Williams v. Golding (1). Further, the defendant was not acting under the direction of the board in committing the trespass upon the land of the plaintiff.

E. Thomas, in support of the rule, referred to Poulsum v. Thirst (2). The defendant was acting not only bona fide, but also he believed that he was acting under the direction of the board. He is, therefore, entitled to notice of action.

COCKBURN, C.J.-I do not see that the belief which he entertained has anything to do with the matter. He was not acting under the orders or direction of the board, but was performing a duty which is thrown upon him by the statute of draining his house efficiently. Notice was given to him to make the drain, but not to commit a trespass in doing so.

LUSH, J.-If he had refused to do the work, and the board had ordered one of their people to do it, and that person had, while acting under their directions, committed the trespass, he would, under the

(1) 35 Law J. Rep. (N.s.) C.P. 1; s. c. Law Rep. 1 C. P. 69.

(2) 36 Law J. Rep. (N.s.) C P. 225; s. c. Law Rep. 2 C.P. 449.

By the Markets and Fairs Clauses Act, 1847 (10 & 11 Vict. c. 14), s. 13, it is enacted, that after the statutory market-place is opened for public use, every person other

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than a licensed hawker who shall sell or expose for sale in any place within the prescribed limits, except in his own dwellinghouse or shop, any articles in respect of which tolls are by the special act authorized to be taken in the market, shall for every such offence be liable to a penalty not exceeding 40s."

The appellant was tenant of a dwellinghouse and shop, and of a piece of ground in front of the shop. A wooden shed affixed to the house, and supported on wooden posts, had been erected and continued over the piece of ground for a period of eighteen years, and, previous to its erection, there had been stone flags built into and forming part of the house, and projecting three feet beyond it. The flags still remained beneath and assisted in supporting the shed, and were erected at the same time as the house and shop. The appellant having been convicted, under section 13, for exposing tollable articles for sale on the ground beneath this shed:-Held, that there was not sufficient evidence to justify the conviction, as the structure must be considered as part of a "dwelling-place or shop" within the exception.

[For the report of the above case, see 38 Law J. Rep. (N.S.) M.C. p. 91.]

Poor-Rate-Valuation List - Necessity of Renewing Application to the Assessment Committee in Appealing against Second Rate-Union Assessment Committee Amendment Act, 1864 (27 & 28 Vict. c. 39), s. 1.

By the Union Assessment Committee Amendment Act, 1864, 27 & 28 Vict. c. 39.

8. 1, it is enacted, with regard to appeals against poor-rates made for any parish

contained in any union to which the Union Assessment Committee Act, 1862, applies, that no person shall appeal to any Sessions against a poor-rate made in conformity with the valuation list approved by the assessment committee, unless he shall have given to such committee notice of objection against the list, and shall have failed to obtain such relief in the matter as he deems just; and which objection, after notice given at any time in the manner prescribed by the act with respect to objections, the committee shall hear, with full power to call for and amend such list, although the same has been approved of, and no subsequent list has been transmitted to them, and, if they amend the same, shall give notice of such amendment to the overseers, who shall thereupon alter their then current rate accordingly :-Held, that where an appeal has been made to the Sessions against a rate, after failure to obtain relief from the assessment committee, it is necessary, before appealing against a second rate, to make a fresh application for relief to the assessment committee, although the list upon which the second rate is made contains precisely the same valuation of the appellant's property as that in the list which has been previously objected to.

[For the report of the above case, see 38 Law J. Rep. (N.s.) M.C. p. 89.]

time to time in force concerning jointstock companies and necessarily affecting the company; and by the 196th of the said articles, "That whenever any differences shall arise between the said banking company on the one hand, and any of the shareholders, their heirs, executors, administrators or assigns on the other hand, touching the true intent, or construction, or the incidents or consequences of these presents, or of the statutes, or touching anything then or to be thereafter done, executed, omitted or suffered in pursuance of these presents, or of the statutes, or touching any breach, or alleged breach of these presents, or any claim on account of any such breach, or alleged breach, or otherwise relating to the premises, or to these presents, or to the statutes, or to any of the affairs of the said company, every such difference shall be referred to the arbitration of two persons." And by the 197th of the said articles, "That one of the said arbitrators shall be named by each of the parties to the difference, and as regards any such party, whether consisting of one person or more persons than one." And by the 200th of the said articles, "that the arbitrators before entering on the business of the reference shall, by writing under their hands, appoint an impartial and qualified person to be their umpire." And by the 201st of the said articles, "That if the arbitrators do not, within fourteen days after their appointment, appoint an umpire, then, on the application of the parties in difference, or either of them, an umpire may be appointed by the Governor of the Bank of England or by a Judge, under the Common Law Procedure Act, 1854." And by the 202nd of the said articles, "That if the arbitrators do not, within thirty days next after the matter in difference is referred to them, agree on their award thereon, then it shall be referred to the umpire." And by the 203rd of the said articles, "That the award of the arbitrators or of the umpire, if made by writing under their or his hands or hand, and ready to be delivered to the parties in difference, or such of them as desire it, their heirs, executors, administrators or assigns, within thirty days next after the matter in difference is referred to the arbitrators, or, as the case may be, to the umpire, shall be

binding and conclusive on all parties interested, their heirs, executors, administrators and assigns, and all such things shall be forthwith thereafter done, omitted and suffered, as the award requires." And by the 208th of the said articles, "That the umpire shall have full power from time to time, by writing under his hand, to extend the time within which his award is to be made, and if it be made and ready to be delivered as aforesaid within the extended time, it shall be as valid and effectual as if made within the thirty days." And by the 209th of the said articles, "That the costs of and incident to the arbitration and award shall be in the discretion of the arbitrators and umpire respectively." And the plaintiff says that the said requisition of the plaintiff not to carry the said resolution into effect not having been complied with, the plaintiff duly gave notice to the said liquidators that he had appointed, and he did appoint, one Cyrus Martin Fisher an arbitrator on his behalf, by whom the disputes and differences existing between him and the said liquidators respecting the purchase of his said shares, and the amount to be paid to him for them, should be determined, and required the said liquidators to appoint an arbitrator on their behalf. That the said liquidators afterwards appointed one John Francis Holcombe Read an arbitrator on their behalf, by whom the disputes and differences aforesaid should be determined. That the said arbitrators did not within fourteen days after their ap pointment, appoint an umpire; and thereupon, on the application of the plaintiff, by an order duly made under the provisions of the statute in that behalf, by the Hon. Mr. Justice Lush, dated the 5th of February, 1867, Henry Macnamara, of No. 5, Paper Buildings, Temple, in the city of London, barrister-at-law, was appointed as umpire to decide the said matters in difference between the said parties. That the said arbitrators did not, within thirty days next after the said matters in difference were referred to them, agree on their award thereon; and that the said umpire duly enlarged the said time for making his said award from time to time until the 2nd of January, 1868; and that the said umpire, on the 6th of December, 1867, duly made his award, and did thereby

adjudge and award that the price to be paid for the purchase of the interest of the plaintiff in the said banking company was 2,100%., at which sum he assessed the said price, and which sum he directed the said defendants to pay to the plaintiff. That the said umpire did further award and direct that the defendants should pay to the plaintiff his costs of and incident to the said reference and the costs of the said award, and should bear and pay their own costs of the said reference. That the plaintiff's costs of and incident to the said reference, and the costs of the said award were duly taxed and allowed to the plaintiff at 70%. 18s. 6d. And that all conditions were performed and fulfilled, and all things happened and were done, and all times elapsed necessary to entitle the plaintiff to be paid the said sums of 2,1007. and 70l. 18s. 6d., yet the defendants have not paid the same, or any part thereof to the plaintiff.

The defendants pleaded, ninthly, on equitable grounds, that before the meeting of the said banking company, at which the said resolution in the said declaration mentioned was passed, to wit, before the 26th of September, 1866, and before the accruing of any of the alleged causes of action in the said declaration mentioned, the plaintiff was the holder of 120 shares in the said banking company, and was, as such shareholder, indebted to the said company in 6007., in respect of a call of 51. upon each of the said shares, whereby an action accrued to the said banking company, and the plaintiff's said shares became and were liable to forfeiture. That the defendants were then proposing to reconstitute the said bank, and to pass the said special resolution in the first count mentioned; and it was then mutually agreed by and between the plaintiff and the defendants, that in consideration that the defendants would forbear from pressing for payment of the said money then due and owing to them by the plaintiff, and would give the plaintiff time for the payment of the same, and would abstain from forfeiting his said shares, the plaintiff promised to consent to the proposal of the directors, if duly authorized by a resolution of a general meeting, or with such modifications as such general meeting should approve of; and that he would assent to and vote in

favour of such special resolution, when the same was passed, and would not dissent therefrom; and that he would exchange his said shares which he then held for a proportionate number of shares in the reconstituted bank. And the defendants say that they did forbear from pressing for payment of the said money then due and owing to them by the plaintiff, and did give the plaintiff time for the payment of the same, and did abstain from forfeiting his said shares. And that the proposal of the defendants was duly authorized by a resolution of a general meeting of the said banking company, with such modifications as they thought fit, and the said special resolution was passed as aforesaid as in the said first count alleged.

There were demurrers to the declaration and the plea, and joinders therein.

Holl, for the plaintiff.-The important sections of the Companies' Act, 1862, as bearing upon the present question, are the 161st and the 162nd (1). The former of

(1) Section 161. "Where any company is proposed to be or is in the course of being wound up altogether voluntarily, and the whole or a portion of its business or property is proposed to be transferred or sold to another company, the liquidators of the first-mentioned company may, with the sanction of a special resolution of the company by whom they were appointed, conferring either a general authority on the liquidators, or an authority in respect of any particular arrangement, receive in compensation or part compensation for such transfer or sale, shares, policies, or other like interests in such other company, for the purpose of distribution amongst the members of the company being wound up, or may enter into any other arrangement whereby the members of the company being wound up may, in lieu of receiving cash, shares, policies, or other like interests, or in addition thereto, participate in the profits of or receive any other benefit from the purchasing company; and any sale made or arrangement entered into by the liquidators in pursuance of this section shall be binding on the members of the company being wound up; subject to this proviso, that if any member of the company being wound up who has not voted in favour of the special resolution passed by the company of which he is a member at either of the meetings held for passing the same expresses his dissent from any such special resolution in writing addressed to the liquidators or one of them, and left at the registered office of the company not later than seven days after the date of the meeting at which such special resolution was passed, such dissentient member may require the liquidators to do one of the following things as the liquidators may prefer; that is to say, either to abstain from carrying such resolution into effect, or to purchase