Imágenes de páginas
PDF
EPUB

REVIEW OF CURRENT ENGLISH CASES.

(Registered in accordance with the Copyright Act.)

MOTOR CAR-DRIVING AT DANGEROUS SPEED- "HAVING REGARD TO ALL THE CIRCUMSTANCES OF THE CASE"-EVIDENCEMOTOR CAR ACT, 1903 (3 Edw. VII. c. 36), s. 1, sub-s. 1.

Elwes v. Hopkins (1906) 2 K.B. 1 was a prosecution under the Motor Car Act, 1903, for driving a motor vehicle at a speed dangerous to the public, "having regard to all the circumstances of the case," and the only point in question was whether evidence was admissible on behalf of the defendant as to the traffic which might reasonably be expected on the highway in question, it being objected to by the prosecutor as being merely hypothetical. Lord Alverstone, C.J., and Rigby and Darling, JJ., agreed that the evidence was admissible.

LANDLORD AND TENANT-LEASE OF LICENSED PREMISES-COVEN-
ANT BY LESSEE TO CONDUCT PREMISES IN A REGULAR AND

PROPER MANNER-UNDERLEASE OFFENCE BY UNDER LESSEE
AGAINST LICENSING LAWS-REFUSAL TO RENEW LICENSE-
LIABILITY OF LESSEE FOR ACT OF UNDERLESSEE.

Palethorpe v. Home Brewery Co. (1906) 2 K.B. 5 was an action for damages for breach of covenant contained in a lease of licensed premises. The defendants, the lessees, had covenanted with the plaintiff that they would at all times during the term keep and conduct the premises in a regular and proper manner, and would not knowingly or willingly do or suffer any act whereby the license should be forfeited or the renewal thereof refused. The defendants had sublet the premises and the sublessee had committed offences against the licensing laws by reason whereof a renewal of the license was refused. Farwell, J., who tried the action gave judgment for the plaintiff, and on appeal his judgment was affirmed by the Court of Appeal (Williams, Stirling, and Moulton, L.JJ.). Bryant v. Hancock (1899) A.C. 442 was distinguished on the ground that in the present case there was a distinct and positive covenant by the lessees that they would at all times during the said term conduct the premises in a regular and proper manner in all respects.

LANDLORD AND TENANT-LICENSE TO ASSIGN-COVENANT BY PROPOSED ASSIGNEE TO PAY RENT FINE OR SUM OF MONEY IN THE NATURE OF A FINE"-(R.S.O. c. 71, s. 42).

Waite v. Jennings (1906) 2 K.B. 11, although a decision under the English Conveyancing Act, 1892, incidentally furnishes light on the meaning of the Settled Estates Act, R.S.O. c. 71, s. 42. The facts were simple; a lease contained a condition that the lessee should not assign without license. The lessee applied to the lessor for leave to assign, and the lessor stipulated as a condition of granting the license that the proposed assignee should covenant to pay the rent and perform the covenants of the lease during the residue of the term. The license was accordingly granted by deed to which the proposed assignee was a party and entered into the required covenant. He afterwards assigned with the license of the lessor. The second assignee having neglected to pay the rent the present action was brought by the lessor against the first assignee on his covenant. The Conveyancing Act, 1892, s. 3, provides that in the absence of any stipulation to the contrary in a lease, no fine is to be payable for a license to assign; and by s. 9, a fine is declared to include any payment, consideration or benefit in the nature of a fine; and it was contended on the part of the defendant that the stipulation imposed that the first assignee should enter into a covenant was in the nature of a fine and therefore illegal. Darling, J., at the trial gave judgment for the plaintiff, and the Court of Appeal (Williams, Stirling, and Moulton, L.JJ.) held that even if the covenant was in the nature of a fine, the statute did not make it illegal, and therefore the statute afforded no defence; but Williams and Stirling, JJ., were of opinion that a covenant which secures no sum of money to the lessor beyond the rent to which he is entitled under the lease cannot be deemed "a fine" within the meaning of the Act, but from this Moulton, L.J., dissented.

LANDLORD AND TENANT-COVENANT TO PAY "OUTGOINGS AND IMPOSITIONS"-FACTORY ACT, 1901 (1 Edw. VII. c. 22), s. 101-STRUCTURAL ALTERATIONS REQUIRED BY MUNICIPAL

AUTHORITY.

Stuckey v. Hooke (1906) 2 K.B. 20 was also a case of landlord against tenant. In this case the action was brought on a covenant by the lessee and his assigns to pay and discharge all "outgoings and impositions." The premises were used as a bakery and the

municipal authority under the Factory Act, 1901, refused to allow the premises to be used as a bakery except on the performance of certain structural alterations. The Act provides that where such alterations are required to be made and a lessee claims that a portion of the expense should be borne by his lessor, an applictaion may be made to a magistrate to apportion the expense between the lessor and lessee. An application was made and the expense apportioned, and the alterations carried out. The landlords now claimed under the covenant to recover the whole expense from the assignee of the lessee. Warrington, J., who tried the action gave judgment for the plaintiff's, but the Court of Appeal (Williams, Stirling, and Moulton, L.JJ.) determined that the decision of the magistrate as to the apportionment of the expenses was conclusive and that there was no jurisdiction to entertain the action.

PRACTICE GARNISHEE ORDER- -ORDER TO PAY OVER-DISCRETION
OF COURT-GARNISHEE LIABLE TO PAY A SECOND TIME.

In Martin v. Nadel (1906), 2 K.B. 26, the Court of Appeal (Williams, Stirling, and Moulton, L.JJ.), overruling Sutton, J., hold that where payment under a garnishee order would not operate as a discharge of the garnishee's liability to the judgment debtor, the order to pay, in the exercise of judicial discretion, ought not to be made. The garnishee in the present case was a foreign bank which had an agency in England. The debt sought to be attached was a balance due by the garnishee to the debtor in respect of a sum of money paid by him into the garnishee's bank in Germany. The Court of Appeal held that payment under a garnishee in England would not discharge the garnishee from liability to an action for the money in Germany, and therefore the order to pay over ought not to be made.

CRIMINAL LAW-ATTEMPT TO DISCHARGE LOADED PISTOL-EVIDENCE FOR THE JURY-OFFENCES AGAINST THE PERSON(CR. CODE, SS. 64, 232).

King v. Linneker (1906) 2 K.B. 99 was a prosecution for presenting a loaded pistol at the prosecutor with intent to do him grievous bodily harm. Evidence was given that during an interview between the prosecutor and the prisoner, the prisoner drew a loaded revolver from his pocket, that the prosecutor immediately seized the prisoner and prevented him from raising

H

his arm, that a struggle ensued in which the prisoner nearly succeeded in freeing his arm, and that during the struggle he said several times to the prosecutor, "You've got to die." The prosecutor eventually overpowered the prisoner and he was taken into custody. On a case stated by the judge at the trial the Court for Crown Cases reserved (Lord Alverstone, C.J., Kennedy, Ridley, Darling, and Watson, JJ.), held that this constituted evidence of an attempt to commit an offence on which the prisoner might properly be convicted.

JURISDICTION-ARBITRATION CLAUSE IN STATUTE-APPEAL.

In Norwich v. Norwich Electric Tramways Co (1906) 2 K.B. 119 the Court of Appeal (Williams, Stirling, and Moulton, L.JJ.) held that where a statute provided that arbitration is to be resorted to for the purpose of settling any question in dispute, that that excludes the jurisdiction of the High Court, and that the objection to the want of jurisdiction may be successfully taken for the first time on an appeal to the Court of Appeal.

RAILWAY COMPANY-CONTRACT TO BUILD STATION-ULTRA VIRES PERFORMANCE-DAMAGES-STATUTORY

-SPECIFIC

TION SUBSEQUENT CONTRACT IN DEROGATION OF SAME.

OBLIGA

In Corbett v. South-Eastern, etc., Ry. (1906) 2 Ch. 12, the Court of Appeal (Collins, M.R., and Romer, and Cozens-Hardy, L.JJ.) have reversed the decision of Farwell, J., (1905) 2 Ch. 280 (noted ante, vol. 41, p. 834). The action was for specific performance of a contract made by a railway company in the following circumstances. In 1887 the Bexley Heath Ry. Co. obtained a special act of incorporation which for the protection of one Barron required the company to build and maintain a station for passengers and goods at Well Hall, close to Barron's property, and the station was duly erected. In 1900 the Bexley Heath Ry. undertaking was by Act of Parliament vested in the defendant company which in ignorance of the Act of 1887 entered into the contract in question whereby they agreed with the plaintiff to pull down the Well Hall station and erect another in lieu thereof near the plaintiff's property. The consent of Barron to this could not be maintained and Farwell, J., held that the contract could not be specifically enforced, but that it was intra vires and the plaintiff was entitled to damages. The Court of Appeal, on the other hand, hold that a contract in

derogation of the statutory obligation of the company to maintain a station as Well Hall was ultra vires and therefore that the action failed, and that it made no difference that the statutory obligation was imposed for the protection of a private owner and not for the benefit of the general public. Romer, L.J., however, dissented and agreed with Farwell, J.

DAMAGES-SUBSIDENCE-MEASURE OF DAMAGES-RISK OF FUTURE SUBSIDENCE-REMOTENESS.

Tunnicliffe v. West Leigh Colliery Co. (1906) 2 Ch. 22 was an action to recover damages by the surface owner for subsidence owing to the working of minerals under an adjoining property, in which the question arose whether in assessing the damages anything should be allowed on account of the depreciation in the value of the property owing to the risk of future subsidence. Eady, J., who tried the action decided that point in the negative (1905) 2 Ch. 390 (noted ante, p. 101), but the Court of Appeal (Collins, M.R., Romer, and Cozens-Hardy, L.JJ.) have held that he was wrong and that such damages may be allowed, but Romer, L.J., dissented. Rust v. Victoria Graving Dock (1887) 36 Ch. 113, on which the defendants relied, was distinguished by the majority of the Court on the ground that the possible depreciation there apprehended was not due to the injury complained of; but Romer, L.J., thought that the principle on which that case was decided applied to the present case.

EXPROPRIATION OF LAND-RIGHT OF VENDORS TO REQUIRE EXPROPRIATORS TO TAKE A CONVEYANCE.

In re Cary-Elives (1906) 2 Ch. 143. A public body had in pursuance of statutory powers given notice to treat for the purpose of expropriating certain land and certain easements over other lands which were subject to a settlement. The purchase money had been fixed and paid into Court by the expropriators who took possession of the land, but refused to take a conveyance on the ground of expense. An application was made under the Vendors & Purchasers Act to compel them to do so. And Eady, J., held that both under the ordinary law of specific performance and under the Finance Act, 1895, s. 12, the expropriators were bound to take a conveyance which in case of difference must be settled by the Court.

« AnteriorContinuar »