METROPOLITAN DISTRICT Wills J. 1902 excluded from the description of "business of the Supreme COVINGTON Court" I fail to understand. The general object and purview of the Act is to facilitate and improve the arrangements for the business transacted in the various offices of the Court, and as RAILWAY. it seems to me requires that the widest meaning be given to such words of which they are capable; and surely it is no unreasonable latitude of interpretation to say that business which must be transacted by one, and might be transacted by any one, of the masters of the Supreme Court, which was confided to him by the Lands Clauses Acts only because he is a master of the Court, falls within the description of "business of the Supreme Court." It is perhaps worth while to note in passing that the expression in the Lands Clauses Act, 1845, that the costs "shall be settled" by a master of the Court of Queen's Bench is altered in the Lands Clauses (Taxation of Costs) Act, 1895, to "shall be taxed and settled" by a master of the Supreme Court. "Taxation" has a definite legal meaning, and was probably used in this Act with reference to the phrase in Order LXI., r. 1, as it then stood, "taxation of costs in the Queen's Bench Division." But the second part of the Rules of January, 1902, so far as they touch the matter in question, have another sanction, which as to the matter now in hand seems to me to be absolutely beyond doubt. The Judicature Act, 1875, s. 17, sub-s. 3, gives power to make rules for regulating any matters relating to the duties of the officers of the Supreme Court. The conjoint effect of Order LXI., r. 1, and of the Rules of January, 1902, is to direct that costs of every description shall be taxed in the taxing department of the Central Office, and that the Chancery taxing masters shall belong to that department—a perfectly valid regulation under s. 17, sub-s. 3, of the Act of 1875. The process appears to me to be clear by which the power to tax, originally vested in a master of the Queen's Bench, became vested in a master of the Supreme Court, and was performed in the Central Office; by which the Chancery taxing masters, if their office should become amalgamated with the Central Office, became themselves capable of being interchanged with the v. METRO POLITAN masters of the Supreme Court for all purposes of taxation; and 1902 by which their office was in January, 1902, so amalgamated, COVINGTON and they were thenceforward capable of performing and liable to perform all the taxing business which was in fact performed in the Central Office; and, in my opinion, Mr. Spofforth, as one of the Chancery taxing masters, had jurisdiction to tax in the present instance. CHANNELL J. In this case I have had the opportunity of reading the judgments of the Lord Chief Justice and Wills J., and I agree with them; but I wish to say that I have been more pressed than they appear to be with the difficulties arising from the decision in Owen v. London and North Western Ry. Co. (1) That case appears to me to decide that the settlement of costs under the Lands Clauses Act, 1845, s. 52, was not made business of the Queen's Bench Court, which the masters transacted as officers of the Court, but work entrusted to them outside their office, although so entrusted because they held that office. Whether we agree with that decision or not, it would after it has stood for so many years be wrong not to follow it now, and I think it would be equally wrong not to apply the same rule to the Act of 1895. It seems to me, therefore, that what we have to find is who are the persons who now come within the description of "masters of the Supreme Court," as used in the Act of 1895. This expression cannot mean merely the persons who in 1895 filled the office, nor can it depend upon the title, for the title might be changed from time to time, and in fact officers performing very dissimilar duties have at various times in the history of our Courts held the title of "master." The expression "masters of the Supreme Court" in the Act of 1895 must therefore, I think, be construed to mean "the persons from time to time filling the office now known and described as masters of the Supreme Court." I think that although the Chancery taxing masters have not had formally conferred on them the title of "masters of the Supreme Court," yet the statutes and rules quoted in the judgments of my Lord and my brother Wills shew that a (1) L. R. 3 Q. B. 54. DISTRICT RAILWAY. Wills J. 1902 METROPOLITAN DISTRICT Chancery taxing master is now a person who fills the same COVINGTON Office and performs the same duties as at the time of the passing of the Act of 1895 were filled and performed by the persons then known as "masters of the Supreme Court," and, conseRAILWAY. quently, he must now be considered as a persona designata Channell J. directed by the Act of 1895 to tax and settle these costs. I agree, therefore, with the judgments that have been delivered. Appeal allowed. Solicitors for claimant: Stanley Evans & Co. J. F. C. 1903 Jan. 22, 23. THE COLUMBUS COMPANY, LIMITED v. CLOWES. Nominal Damages. The plaintiffs employed the defendant to prepare plans for a building to be erected on a site belonging to them. The defendant neglected to measure the site, and, acting on information which was unauthorized by the plaintiffs, prepared plans on the assumption that the site was smaller than it was in fact. The plaintiffs, having paid the defendant for the plans, were unable to raise funds to build on the site, and ultimately parted with it, and then discovered the error in the plans. In an action to recover the money paid for the plans on the ground of a total failure of consideration, or, in the alternative, for damages for negligence : Held, that there had not been a total failure of consideration, but that as the defendant had been negligent the plaintiffs were entitled to damages, although, as they had sustained no loss from his negligence, those damages would be only nominal. ACTION tried before Wright J. without a jury. In 1897 the plaintiffs became the lessees of a piece of land situate in Carmelite Street, in the City of London, and they employed the defendant as their architect to prepare plans and specifications for a factory and offices to be erected on that site, and to engage a quantity surveyor to take out the quantities from such plans. The defendant, understanding that the dimensions of the piece of land in question were less than was actually the case, did not measure the land, but prepared specifications and plans in accordance with what he believed to be the dimensions of the site, and employed a Mr. Priestly to take out the quantities from these plans. The plaintiffs, believing that the plans and quantities were correct, paid the defendant 2001. and Mr. Priestly 2001. in respect of the work done by them. The plaintiffs were, however, unable from lack of funds to erect the buildings as they had intended, and ultimately in 1901 they parted with the lease. It was then discovered that the plans and quantities were incorrect as they did not cover the whole of the site; and the plaintiffs accordingly brought this action, claiming the return of the money paid as having been paid upon a consideration which had wholly failed, or, in the alternative, damages for negligence. At the trial evidence was given to shew that the defendant had made borings on the site to ascertain to what depth it would be necessary that the foundations should go; and Mr. Priestly stated that the difference in the quantities that he had prepared in accordance with the original plans and those which would be necessary in the case of a building to cover the whole site would be about 401. Bray, K.C. (F. P. M. Schiller with him), for the plaintiffs. There has been a total failure of consideration, and the plaintiffs are entitled to recover back the money they have paid. Every person employed as an architect or surveyor must use due diligence, and must not rely on the information of others: Moneypenny v. Hartland. (1) The plaintiffs paid for the plans in ignorance of the facts, and therefore are entitled to get back the money they have paid: Milnes v. Duncan. (2) Alternatively, the plaintiffs are entitled to the damages which they have sustained from the defendant's negligence. Those damages are the money paid for the plans, which are absolutely useless. New plans altogether would be necessary, and the quantities would have to be taken out afresh from those plans. Gore-Browne, K.C. (A. G. McIntyre with him), for the (1) (1824) 1 C. & P. 352. (2) (1827) 6 B. & C. 671; 30 R. R. 498. 1903 COLUMBUS v. CLOWES. 1903 COLUMBUS COMPANY ข. CLOWES. defendant. There is not here a total failure of consideration. The defendant did work in taking borings to ascertain the necessary depth for the foundations, for which he is entitled to be paid. Nor are the plans worthless. The defendant could have amended them so as to adapt them to the true dimensions of the site, and the evidence shews that they are still of use for taking out the quantities. The plaintiffs are not entitled to sue for the money they have paid for the plans without first returning the plans, which they have not done. Assuming that the defendant was negligent in not measuring the site, the plaintiffs have sustained no damage, since they were never in a position to make use of the plans even if they had been correct. Bray, K.C., in reply. It is immaterial that the plans were not used. They ought to have been reasonably fit for the purpose for which they were supplied: Jones v. Just. (1) The damages must be taken as accruing at the time of the breach of contract; and the plaintiffs, therefore, are entitled to the value of the plans if they had been correct-that is to say, to the amount which they paid for them. Cur. adv. vult. Jan. 23. WRIGHT J. This is a somewhat singular case, and one which, as far as I can ascertain, is not exactly covered by authority. The plaintiffs employed the defendant, who was an architect, to make plans of a building to be erected on a site of which the plaintiffs were the lessees. The defendant appears to have been informed by some person, who had no authority from the plaintiffs to give any such information, that the site in question was of certain dimensions, which were in fact considerably less than the real dimensions of the site. The defendant assumed this information to be correct, and, without taking any steps to measure and survey the site, drew his plans on that assumption. It is not contended that he was right in doing so, and I think it was practically admitted that it was his duty to have surveyed the site and measured it, and taken out the proper dimensions before proceeding with his (1) (1868) L. R. 3 Q. B. 197. |