LANDS CLAUSES, &c. LANDS CLAUSES CONSOLIDATION ACT, 1845. 8 & 9 Vict. c. 18, ss. 25, 34, 68. The plaintiff, whose lands were injuriously affected by certain works of the defendants, who were acting under a statute with which the Lands Clauses Consolidation Act, 1845, was incorporated, on the 16th of December, 1858, gave notice under the 68th section of that Act that he claimed compensation in respect of such injury, and that unless the defendant paid the amount claimed within twenty-one days, he desired to have the amount of compensation settled by arbitration under that Act. Twenty-one days after this notice, the plaintiff, by writing under his hand, nominated a person as his arbitrator, and on the 17th of January, 1859, gave notice to the defendants that he had done so, and required the defendants to appoint an arbitrator on their part. On the 25th of January the defendants tendered to the plaintiff 301. for the alleged damage and costs, which the plaintiff refused. The defendants then nominated an arbitrator on their part, and the sum of 231. was ultimately awarded to the plaintiff as the amount of compensation to which he was entitled.Held, that the plaintiff was not entitled to the costs of the arbitration by the 34th section of the 8 & 9 Vict. c. 18, the tender being in time, inasmuch as the plaintiff had not pursued the proper steps pointed out in the 25th section, and had not delivered his appointment to the arbitrator when the tender was made. Yates v. The Mayor, &c. of Blackburn, 61 LOCAL GOVERNMENT, &c. 915 LEASE. Covenant not to sell Manure under Increased Rent. See LANDLORD AND TENANT (1). LICENSING ACTS. See BEER. LIMITATIONS, STATUTE OF. 3 & 4 W. 4, c. 42, s. 3-Death of Defendant after Action brought. In May, 1831, the obligee of a bond brought an action against the obligor. After notice of trial the action abated by the death of the obligor in December 1835. The obligor left a will, which was not proved by the executor named therein. On the 18th of May, 1857, administration of the goods and effects of the obligor with the will annexed was granted to the present defendant. In March, 1852, the obligee petitioned the Insolvent Debtors Court, and his effects vested in the provisional assignee, the present plaintiff, bond against the defendant on the 17th of May, 1858.-Held, by the Court of Exchequer Chamber (affirming the judgment of the Court of Exchequer), that the right of action was not barred by the Statute of Limitations, 3 & 4 Wm. 4, c. 42, s. 3. Sturgis, Provisional Assignee of Hart120 ley, &c., v. Darell, who commenced an action on the 916 LOCAL GOVERNMENT, &c. MARRIAGE. dwelling-house, shall have an open | erection was not a new dwellinghouse but merely an addition to an old dwelling-house: Or, per Bramwell, B., because the justices had not found that it was a new dwellinghouse which was essential to the validity of the conviction. space exclusively belonging thereto to the extent at least of one-third of the entire area of the ground on which the said dwelling-house shall stand and which shall belong thereto &c." By the 21 & 22 Vict. c. 98, no bye-law shall affect any building erected before the date of the constitution of the district, but the reerecting of any building pulled down to or below the ground floor, or the conversion into a dwelling-house of any building not originally constructed for human habitation, shall be considered the erection of a new building. The proprietor of a house, which had been erected before the constitution of the district, and was used for an hotel, having a yard with a coach-house and stables in the rear, for the purpose of making an addition to the hotel, pulled down the coach-house and stables below the ground floor, and erected upon the same site a building three stories high; the only means of access to the upper chambers being by going up the staircase of the old house and through a passage into the new building. On an information against the proprietor for an offence against the bye-law in not leaving an open space equal to one-third of the area of the ground on which the dwelling-house stood, &c., the justices found that the building erected in the yard being a new building built up to and adjoining the old building must either be considered with the old building as one house, or that the old house and new building must be considered as two erections, and that both old and new buildings must be considered in reckoning the ground upon which the building stands; and convicted him of a breach of the byelaw,-Held, that the conviction could not be sustained, because the new By the 21 & 22 Vict. c. 98, s. 34, local Boards are empowered to make bye-laws "with respect to the level, width and construction of new streets," &c. A local Board made bye-laws with a general heading, following the language of the 34th section. The first bye-law was also headed, "Width and level of new streets." It provided for the width of new streets, dividing them into front streets, cross streets and back streets; and went on, in a subsequent paragraph, to provide "that no dwelling-house shall be built immediately adjoining any back street without the special permission of the local Board."- Held, that this provision applied only to new back streets and not to a new building in an old back street. Shiel, App., Mayor of Sunderland, Resp. Same v. Same, MAINTENANCE. See FALSE REPRESENTATION. MARRIAGE. 796 Action for Breach of Promise of— Evidence of Rescission of Contract. In an action for breach of promise of marriage, it was proved that the defendant, having written a letter to the plaintiff desiring to terminate the engagement, called at her father's house, and a conversation took place respecting the return of letters. The defendant returned the plaintiff's letters; the plaintiff said "No, I can't give up your letters it would be like giving you up altogether." The plaintiff left her home and went to See CONTRACTOR. 349 reside with an aunt for a long period, I want of such protection. Holmes and no correspondence took place v. Clarke, between the parties for a period of two years.-Held, that this was evidence from which the jury might infer that the plaintiff had exonerated the defendant from his promise before any breach. Davis v. Bomford, MASTER AND SERVANT. 245 (1). Liability of Master for Act of Servant done in the course of his Employment. PLEADING (2). SERVANT. MEDICAL ACT. 21 & 22 Vict. c. 90. K., who was legally qualified as a surgeon and apothecary, and registered as such under "The Medical Act," 21 & 22 Vict. c. 90, was, before the time of passing of that Act, The plaintiff, a passenger by an possessed of a German medical dipomnibus, while being forcibly reloma, and called himself Dr. K. He moved from it by the guard in charge, after the passing of the Act, though continued to use that description was thrown on the ground and serinot registered as doctor of medicine. ously injured. The proprietor of the omnibus, on being applied to for com-Held, no evidence that he had wilpensation, stated that the plaintiff was drunk and had refused to pay his fare. On cross-examination the plaintiff did not deny that he had been drinking.-Held, that if the guard intended to put the plaintiff safely out of the omnibus, there was evidence that in so doing he was executing the commands of the proprietor his master; and that if the injury was caused by the guard acting without due care in executing such command the proprietor was responsible. Seymour v. Greenwood, 359 (2). Liability of Master for Accident to Servant-Risk knowingly incurred-Factory Acts. Where machinery is required by statute to be fenced, and a servant enters into the employment of the owner whilst it is protected, and continues in the service after the protection is removed by decay or otherwise, but complains of the danger and is promised, that the protection shall be restored, the master is liable for injury to the servant arising from the fully and falsely pretended to be, or taken or used the name and title of a doctor of medicine so as to render him liable to a penalty under the 40th section of that Act. Ellis, Appellant, Kelly, Respondent, MINING. 222 Liability for Injury to adjacent Owner by Removal of Support-Damages. Where the working of mines, in however careful a manner, has caused a subsidence of the adjacent land, the owner is entitled to recover in respect of damage to buildings thereon, although erected within twenty years, provided their weight did not contribute to the subsidence. In 1833, a manufactory was erected on a close, and in 1841, and between that time and 1849, the buildings were enlarged. In March 1842, the close and buildings, which were leased for a term which expired in October, 1851, were conveyed in fee by S., the owner, to C. C. died in 1849, and in November 1851 the devisees under his will conveyed the close and buildings to the plaintiff To a déclaration on a charter-party, in fee, who before 1849 was assignee alleging as a breach the refusal by of the term and occupied the build- the defendants to load a cargo, the ings. In 1849 and 1850 the defen- defendants pleaded, as an equitable dants, in getting coal from their defence, that they entered into the mines, near but not immediately ad- charter-party solely as agents for joining the close, caused the surface A. D. and Co., and that, when the to subside, by which the buildings defendants signed the charter-party, were injured. The devisees of C. it was agreed and understood between did not thereby, in fact, sustain any the plaintiff and the defendants that damage, inasmuch as they incurred the defendants were only to sign the no expense, and continued to receive charter as such agents, so as to bind the full rent for the premises, and A. D. and Co., and were not to upon the sale thereof obtained the make themselves liable as principals full value, without reference to any for the performance of the charter: injury thereto (of which they were that they signed as follows:-" For ignorant) by the mining operations. A. D. and Co., of Messina. H. and Subsequently to the sale to the Co. agents:" the defendants and the plaintiff, the working of the mines plaintiff bonâ fide believing at the under lands, near to but not adjoin- time the charter was made, that the ing the close on which the buildings defendants having so signed would stood, occasioned a further subsi- not be liable to be sued on the dence. No damage was done by the charter, notwithstanding the charter working of the mines subsequently in the body thereof professed to be to July 1852, but the subsidence of made between the plaintiff as owner the ground continued, the conse- of the one part and the defendants quence of the previous mining ope- as freighters on the other; that the rations. The mining was skilfully defendants had the power to bind conducted, and the buildings did not A. D. and Co., and that the plaintiff contribute to the subsidence. In was inequitably taking advantage of August, 1855, the plaintiff brought the mistake in drawing the charter. an action against the defendant.-Held, that the plea shewed a good Held, that he was entitled to recover equitable answer to the action.-And damages in respect of the deteriora- per Bramwell, B.-Semble, that it tion in value of the manufactory, the was a good answer at law. Wake v. machinery broken, the increased ex- Harrop, pense of keeping it in repair and working order, and the diminished profits both in respect of his occupation before and after the purchase. Held, also, that the devisees of C. might maintain an action for the injury to their reversion during the subsistence of the lease, as trustees and for the benefit of the vendee. Stroyan v. Knowles. Hamer v. Knowles, MISTAKE. Equitable Relief against. 454 MONEY HAD AND RE- 768 The plaintiff being in embarrassed circumstances, offered his creditors a composition of 58. in the pound. The defendant, a creditor, refused to accept it unless the plaintiff paid him 501. and gave him a bill of exchange for 1087. The other creditors would not accept the composition if the defendant did not. The plaintiff paid the defendant the 501. and gave (2). Liability of Waterworks Company for. See WATERWORKS COMPANY. NOTICE. Of Act of Bankruptcy. See BANKRUPTCY (3). Of Action. The 3 & 4 Wm. 4, c. lxviii., for paving, lighting, &c., the town of Birkenhead, by sect. 201 enacts that no plaintiff shall recover in any action, &c., to be commenced against the Commissioners for anything done or to be done in pursuance or under the authority of the Act, unless notice in writing shall have been given to the defendants. The Commissioners were sued for an injury occasioned by the negligence of some paviours, their servants.-Held, that they were entitled to notice of action, and that a notice detailing the facts, but not stating an intention to bring an action, was insufficient, Mason V. The Birkenhead Improvement Commissioners, 72 tract. See CONTRACT. PENAL ACTION. See PRACTICE. PLEADING. (1). Certainty. A count of a declaration stated that the plaintiff was tenant to C. of a public house, and also owed her money; that C. had seized, as a distress for arrears of rent, certain goods of the plaintiff; and thereupon the defendant, representing and pretending that he was authorized by C. to act as her attorney in that behalf, and as such attorney to enter into the agreement thereinafter mentioned in her behalf, it was agreed between plaintiff and defendant, as such attorney on behalf of C., that for the consideration in the agreement mentioned, C. would withdraw the distress and take no proceedings for the recovery of the arrears of rent for six months. The declaration then stated that, although the plaintiff performed his part of the agreement, the defendant, representing and pretending that he was authorized as attorney for C. so to do, did, in the name of C., take proceedings for the residue of the arrears of rent within six months, and in violation of the agreement did, as such attorney in the name of C., distrain for the residue of the arrears of rent |