LANDLORD AND TENANT-continued.

Statement of Ground of Forfeiture-Determination
of Tenancy-Effect on Rights of Third Parties-
Subsequent Payment of Rent by Occupier to Lessee
-Estoppel.

The lessee of premises created a yearly
tenancy under which the plaintiff became tenant
and occupier of the premises. On the same day
the lessee mortgaged the premises by way of
sub-demise without obtaining the permission of
the lessor. The lease contained a covenant not
to assign, underlet, or part with the possession
of the premises without the consent in writing of
the lessor, and a clause providing for re-entry
upon breach of any of the covenants. The lessee,
who had been adjudicated bankrupt, failing to
pay the interest, the mortgagees appointed a
receiver, to whom the plaintiff paid a quarter's
rent due at the following Midsummer. Before
the next quarterly rent became due the lessor
issued a writ to recover possession of the
premises; but the writ, which was served on the
plaintiff (as occupier) and others, did not con-
tain a statement of the ground of forfeiture. The
plaintiff after appearance in that action, but
before delivery of statement of claim specifying
the cause of forfeiture, paid the rent falling due
at Michaelmas to the receiver. He refused to
pay the rent falling due at Christmas, and the
receiver, under the powers given by the Con-
veyancing Act, 1881, distrained. In an action
by the plaintiff against the receiver for a wrong-

ful distress:-

Held, that the sub-demise to the mortgagees,
without the consent of the lessor, constituted a
breach of the covenant as to assignment:

Held, also, that the issue and service of the
writ to recover possession of the premises operated
as a final election by the lessor to determine the
term; that to have that effect it was not neces-
sary that the actual ground of forfeiture should
be stated; that with the determination of the
term the right of the mortgagees to recover rent
from the plaintiff came to an end; and that the
distress was in consequence illegal:

Held, also, that the payment of rent to the
receiver by the plaintiff, after the service upon
him of the writ to recover possession of the
premises, did not estop him from shewing, on a
claim for subsequent rent, that the title of the
mortgagees had determined, inasmuch as the
mortgagees were not misled by the payment; and
Per Stirling L.J., on the further ground that
payment of rent by a lessee to a lessor after the
lessor's title has expired, and after the lessee has
notice of an adverse claim, does not amount to an
acknowledgment of title in the lessor, unless at
the time of payment the lessee knows the precise
nature of the adverse claim, or the manner in
which the lessor's title has expired.

Approving Fenner v. Duplock, (1824) 2 Bing.

10; 27 R. R. 537.

Grimwood v. Mo88, (1872) L. R. 7 C. P. 360, ap-
proved. SERJEANT . ÑASH, FIELD & Co. C. A. 304
3.

· Lease― Negative Covenant· Proviso

for Re-entry.

A lease of a house contained a covenant by
the tenant to pay the rent, rates, and taxes, and
also a covenant not to use the premises for

LANDLORD AND TENANT-continued.
certain specified purposes without the consent of
the lessor, and it contained a proviso that "if
the lessee shall commit any breach of the
covenants herein before contained and on his part
to be performed" the lessor might re-enter:-

Held, that, as the lease contained both
affirmative and negative covenants, a proviso for
re-entry in the above form must be understood
as applying only to breaches of the former.
HARMAN v. AINSLIE
Wright J. 241

LANDS CLAUSES ACTS-Compensation-Sever-
ance and injuriously affecting Land-Site of a
Church-Possibility of future Sale-Easement-
Union of Benefices Act, 1860 (23 & 24 Vict. c. 142)
-Lands Clauses Act, 1845 (8 & 9 Vict. c. 18),
8. 63.

By a private Act incorporating the Lands
Clauses Act, 1845, except where expressly
varied by the special Act, a railway company

were authorized to take the site of a church and
land connected therewith in London. By a sub-
sequent private Act of the same company it was
provided that the company should not take any
part of the church, but might acquire any other
part of the property, and an easement or right of
using the subsoil under the church, including
such part of the crypt and foundations as the
company might require. Provision was made
for the temporary use of the structure of the
church during construction of the works, and, in
case of such user before payment of compensa-
tion, possession might be obtained under the
provisions of 8. 85 of the Lands Clauses Con-
solidation Act, 1845. It was also provided that
the company should make good any damage
caused to the structure of the church at any time
after the completion of the railway in conse-
quence of the construction, user, or want of
repair thereof. The amount of compensation to
be paid by the company for the surface taken by
them and for the subsoil and crypt and all other
matters in difference were to be determined by
an arbitrator. The company took the land,
other than the site of the church, and constructed
a station under the church. On an award of an
arbitrator stated in the form of a special case:-

Held (affirming the judgment of Wright J.),
that there being nothing in the special Act to
exclude the operation of the Union of Benetices
Act, 1860, and no inference that it was intended
to exclude the operation of s. 63 of the Lands
Clauses Act, 1845, arising either by intendment
or by the express inclusion of s. 85 of that Act,
and the easement being specifically mentioned
as the subject of compensation, the arbitrator
was entitled to assess compensation under s. 63
of the Lands Clauses Consolidation Act, 1845,
in respect of severance or the injurious affecting
of other lands, on the basis that although the
lands not taken by the company were the site of
a church, they might at some future time cease
to be so, and be available for building, and that
he was at liberty to draw his own conclusions as
to when that time would be likely to arrive. In re
CITY AND SOUTH LONDON RAILWAY COMPANY AND
THE RECTOR AND CHURCHWARDENS OF ST. MARY
WOOLNOTH AND ST. MARY WOOLCHURCH HAW
C. A. 728

LANDS CLAUSES ACTS-continued.

2. Notice of Intention to summon Jury-
Purchase-money and Compensation-Offer by Pro-
moters Time for Acceptance - Lands Clauses
Consolidation Act, 1845 (8 & 9 Vict. c. 18),
88. 38, 51.

Where in a proceeding to take and purchase
lands under the Lands Clauses Consolidation
Act. 1845, the promoters have given notice under
s. 38 of their intention to summon a jury, and
have therein stated the sum which they are
willing to give as and for purchase-money and
compensation, and, the offer not having been
accepted, a jury is summoned, the claimant is
entitled at any time before the verdict of the
jury is given to accept the offer of the promoters,
and the jury should in such a case be directed
to return a verdict for the amount of the offer.
THE KING v. HIGH BAILIFF OF WESTMINSTER.
Ex parte LONDON COUNTY COUNCIL Div. Ct. 189
Poor-rate, Deficiency in assessment to-
Liability of promoters of undertaking
See LONDON. 2.

LEASE.

354

LICENSING ACTS-Renewal-Alehouse-Licence

for Sale of Excisable Liquors-Change of Occu-
pancy-Expiration of Licence-Subsequent Re-
moval-New Tenant-Application for Licence-
Alehouse Act, 1828 (9 Geo. 4, c. 61), s. 14.

80

The Alehouse Act, 1828, enacts, with regard
to persons duly licensed under that Act, "If any
person so licensed, or the heirs, executors,
administrators, or assigns of any person
licensed, shall remove from or yield up the
possession of the house specified in such licence,"
the justices may grant a licence to any new
tenant or occupier of any house having so
become unoccupied.

The tenant of an alehouse who was duly
licensed under the Alehouse Act, 1828, applied
for a renewal of his licence, which was refused.
He continued in occupation of the house after his
licence had expired, and then removed. A new
tenant took possession of the premises, and
applied for a licence under s. 14 of the Alehouse
Act, 1828. The justices refused the application
on the ground that, as the outgoing tenant was
not licensed at the time of his removal, they had
no jurisdiction to entertain the application :-
Held, affirming a judgment of the King's
Bench Division, that the decision of the justices
was right.

Simpkin v. Birmingham Justices, (1872)
L. R. 7 Q. B. 482, approved. REX . LONDON
C. A. 19

COUNTY JUSTICES

v.

LOCAL GOVERNMENT-By-law - Reasonable-
ness-Rural District-Discretion of Justices-
Public Health Act, 1875 (38 & 39 Vict. e. 55),
8. 157.

A rural sanitary authority, invested with
urban powers, made a by-law under s. 157 of the
Public Health Act, 1875, prohibiting the erection
within their district of a new building not con-
structed of brick, stone, or other hard and incom-
bustible material:-

Held, that the fact that the by-law did not
reserve to the sanitary authority any power to
exempt exceptional cases from its operation, as
for instance where the building was remote from
other dwellings and had all its rooms on the
ground floor, did not make the by-law unreason-
able and void; but that if, upon the hearing of
an information for a breach of the by-law, the
justices were of opinion that, having regard to
the purposes for which the by-law was made, it
was not necessary to enforce it under the special
circumstances of the case, they might in the exer-
cise of their discretion under s. 16 of the Sum-

mary Jurisdiction Act, 1879, notwithstanding
that a breach of the by-law had in fact been
only a nominal penalty. SALT v. SCOTT HALL
committed, dismiss the information or impose

Div. Ct. 245

2. Inspection by Local Authority-Admis-
sion to Private Premises-Right of Entry without
Permission of Occupier-Public Health Act, 1875
(38 & 39 Vict. c. 55), 88. 102, 306.

Sect. 102 of the Public Health Act, 1875,
provides that a local authority or any of their
officers "shall be admitted into any premises for
the purpose of examining as to the existence of
any nuisance thereon," and if admission is refused
application may be made to a magistrate for an
order to admit.

By s. 306, any person who wilfully obstructs
any member of a local authority in the execution
of the Act is liable to a penalty.

Members of the appellant council, purporting
to act under s. 102, entered a yard on the respond-
ent's premises in his absence without having
first requested or obtained his permission so
to do, and, while there, were locked in by the
respondent:-

Held, that s. 102 does not authorize an entry
on private premises without the permission of the
occupier being first requested; that the members
of the appellant council while on the premises of
the respondent were, therefore, not engaged in the

6

MERCANTILE MARINE FUND-Shipwreck-
"Distressed seament Expenses of,
maintenance, &c., abroad -
324
See SHIPPING. 4.

[1903]

was on the engine for his own convenience, but
with the permission of the defendant's represen-
tative, and that the accident was due to the
negligence of the defendant's servants :--

Held, that the defendant must be taken,
through his representative, to have permitted
the plaintiff to ride on the engine, and that his
liability was that of a person who undertakes the
carriage of another gratuitously; that the duty
in such a case is that the care exercised must be
reasonable under the circumstances; that there
was evidence of such a failure of due care on the
part of the defendant's servants as would make
him responsible for damage arising therefrom;
and that the plaintiff was entitled to judgment.
HARRIS v. PERRY & Co.
C. A. 219

2.

Liability-Intervening Act of Third
Party- Trespassers, Interference by - Effective
Cause of Damage.

The defendants' servants shunted some trucks
and a brake-van, all coupled together, on to a
siding which was on an incline running down to
a level crossing over a highway. The siding had
a catch-point to prevent vehicles, if set loose,
from running down the incline; but, for the con-
venience of their shunting operations, the defend-
ants' servants did not place the trucks and van
beyond the catch-point, but screwed down their
brakes, and left them in a position in which they
would not have caused any damage if not inter-
fered with. Some boys, trespassing on the siding,
uncoupled the van from the trucks and released
its brake, so that it ran down the incline and
injured the plaintiff, who was lawfully passing
along the highway over the level crossing. The
defendants were aware that boys were in the

See CONTRACT.

6,7.

See LANDLORD AND TENANT. 3.
NEGLIGENCE-Engine, Invitation to Travel on
-Action for Personal Injuries-Duty to take
Reasonable Care under the Circumstances-Liabi-
lity for Negligence of Servants.

The defendant was contractor for making a
tunnel for a tube railway, and had constructed,
for the purpose of carrying out the work, a tem-
porary line on which an electric engine ran.
This engine was used to draw trucks containing
the excavated material to a spot where it could
be brought to the surface. It was not fitted for
passengers, and the defendant had directed that
no one should be allowed to ride on it but the
driver and a guard. It had, however, been used
to carry officials in the employment of the de-
fendant and of the railway company, with the
knowledge and concurrence of the defendant's
representative. The plaintiff was an inspector of
works appointed by the engineer of the railway,
and he accepted from the defendant's timekeeper,
who was riding on the engine, an invitation to
be conveyed by it to his destination. An acci-
dent happened while the plaintiff was on the
engine, and he sustained injuries. In an action
to recover damages from the defendant in respect
of these injuries, the jury found that the plaintiff

with vehicles placed upon it.

At the trial of an action by the plaintiff, the
jury found that the van was in a safe position as
and where left by the defendants, unless inter-
fered with afterwards; that the accident would
not have happened if the van had not been inter-
fered with; that the interference was the act
of trespassers, who acted negligently; that the
danger of interference causing injury was known
to and could have been guarded against by the
exercise of reasonable care on the part of the
defendants; and that the negligence of the de-
fendants in not placing the van beyond the catch-
point was the effective cause of the accident,
Upon those findings the jury assessed damages,
and Kennedy J. gave judgment for the plaintiff:
[1902] 1 K. B. 618.

On appeal by the defendants:-

Held, that the evidence did not support the
findings of negligence on the part of the defend-
ants; and, therefore (applying the rule in Engel-
hart v. Farrant, [1897] I Q. B. 240, 243), as
negligence on their part was not the effective
cause of the accident, they were not rendered
liable through the interference of trespassers.
McDoWALL v. GREAT WESTERN RAILWAY COM-
C. A. 331

PANY