January 28, 1899.
THE ESTATES GAZETTE,
136
of Court by consent, not a compulsory reference. He cited “ Darlington Wagon Co. v. Harding ” to show that the award should not be interfered with. It was perfectly possibly that as the builders had still some claims the commission claimed might prove to be right. The defendants themselves could have found out what the right amount was.
The Court remitted the matter to the arbitrator.
Mr. Justice Bruce said the Court was asked to remit the award in order that the arbitrator might reduce the sum to be paid by the defendants. The claim and the counterclaim had been referred ; the arbitrator had disallowed the counterclaim; the claim, therefore, alone remained. The defendants did not on their pleading deny the plaintiff’s claim. He made up his 5 per cent, commission in respect of the various matters on a total sum of about £35,300. The defendants, knowing that 5 per cent, was due on the amount of the contract, and thinking that the commission was based on the true amounts, did not dispute it. It now turned out that that amount was really £91 less. Under the circumstances were they entitled to have the award remitted ? There was no doubt that the Court had power to remit an award on the discovery of fresh evidence. The older case of “Burnard v. Wainwright” (19 L.J., Q.B., 423), as well as that of Keighley, Maxsted and Co., showed that. He quite agreed that this power should not be exercised without due care. Yet the Court ought not to allow injustice to take place. In this case evidence which would certainly have affected the mind of the arbitrator had been discovered. He thought, therefore, that the matter ought to be remitted. It was perhaps within the power of the Court to direct judgment at once, but the Court would only exercise any such power with extreme caution. The award would therefore be remitted.
Mr. Justice Bidley concurred.
BEOMLEY COUNTY COURT.
January 24.
(Before His Honour Judge Emden.)
COMMISSION ON ASSIGNMENT OF LEASE.
CHATTEL!, V. ALLEN STONEHAM.
This was an action to recover the sum of £42 6s. 9d., being the commission and expenses on the assignment of the lease of the Briars, Chislehurst-common.
Mr. Frederick Mote (instructed by Mr. S. G. Skelton, of 27, Lincoln’s-inn-fields) was counsel for the plaintiff, and Mr. S. D. Stone* ham, solicitor, for the defendant.
The defendant admitted certain items in the account; the only matter in dispute being as to the scale on which the commission should be charged.
In opening the .case, counsel stated that the plaintiff was instructed to dispose of defendant’s interest in the lease of the property, having about 11^ years unexpired, at an original rental of £225 per annum, and to quote £500 as the premium; fixtures, etc., to be taken by valuation.
The plaintiff took full particulars of the property, inserted them in his printed register, and sent a copy (which also contained the scale of commissions) to the defendant. After submitting the particulars to a number of applicants, the property was introduced to a Mr. S. J. Wilson, who offered to take an assignment without premium, but subsequently offered £200, which was declined. He eventually agreed to give £300 premium, subject to the drainage being in good order, and the defendant- stated that when he took possession in 1896, the drains were thoroughly overhauled, and were then (in 1898) in good order. Upon being tested the drains proved to be very defective, and the defendant, rather than let the negotiation fall through, agreed to contribute £35 towards the cost of redrainage The plaintiff claimed, in accordance with his scale of commission, 7g -per cent, on one year’s rental (£225), and 5 per cent, on the premium (£300), these items amounting to £31 17s. 6d.
The defence set up was that the transaction was a sale of the lease, and that the plaintiff was only entitled to charge £9 2s. 6d., being 5 per cent, on £100, and 2¿ per cent, on £165 (deducting from the £300 the £35 allowed for drainage works).
The plaintiff was prepared with the evidence of three professional experts to prove the custom, but they were not called.
Judgment was given for the plaintiff for the full amount of his claim with costs.
NOTICE.
We regret that owing to the great pressure upon our space caused by important late news and advertisements, we are compelled to hold over some reports of legal proceedings, provincial property sales, and other matter.
buildings, the outer walls of which would be 233ft. in length, and would immediately adjoin and abut upon the east side of the lane, and would be throughout their whole length at a distance of 21ft. from the outer walls of the defendants’ factory on the west side of the lane. The district council approved of the defendants’ plans, but required the defendants to set back their new buildings to a line which would make the street 30ft. wide. The defendants refused to comply with this requirement, and gave notice to the district council that they intended to commence the construction of their new buildings in such a way as to leave the road about 22ft. wide. This action was then commenced, and the question was, Whether the erection of the defendants’ new buildings would render Brick Kiln-lane a “ new street ” within section 63 of the Towns Act.
Mr. Farwell, Q.C., and Mr. Cunningham Glen were for the plaintiffs ; Mr. Neville, Q.O., and Mr. B. E. Moore were for the defendants.
Mr. Justice North held that Brick Kiln-lane was a “ new street ” within the meaning of the decisions with reference to similar words in section 157 of the Public Health Act of 1875, at any rate as to that part of the lane which lay between the defendants’ old and new buildings. His Lordship referred to the decision of the House of Lords in “Robinson v. the Barton-Eccles Local Board” (8 A.C., 798), in which it• was held that “ new street ” in that section was not confined to a street constructed for the first time, but applied also to an old highway, formerly a country lane, which had long been a street within section 4 of the Public Health Act, and which by the building of houses on each side of it had recently become a street in the popular sense of the term. As Sir G. Jessel said in the same case (21 Ch. D., 633), there must be a certain degree of continuity in the line of houses, though there might be some difficulty in saying at what precise moment an old road became by the building of houses along it a new street. In the present case, there being buildings on one side of the lane, the defendants proposed to erect new buildings opposite to them for a length of 233ft. Suppose those new buildings had been a row of cottages, would not the lane then have become a new street at that part ? Mr. Neville hardly disputed that it would ; and his Lordship could not see any distinction between the two cases. He must therefore grant the injunction, the relators giving the usual undertaking as to damages.
QUEEN’S BENCH DIVISION.
January 18.
(Before Mr. Justice Bruce and Mr. Justice Ridley.)
ARCHITECT’S CLAIM: AWARD: REMITTING ON DISCOVERY OF FRESH EVIDENCE.
SPliAGUE v. ALLEN AND SONS.
This was a motion to remit an award which had been made by Mr. Justice Bueknill, sitting as arbitrator before his elevation to the Bench.
Mr. McCall, Q.C., Mr. H. Avory with him, appeared for the applicants, the defendants in the action ; Mr. Rose-Innes for the plaintiff.
Mr. McCall stated that the plaintiff was an architect engaged by the defendants in building the Deptford Theatre. An action was brought by him for his commission; to this no defence was raised as it was believed that the claim put forward was for the right amount; there was, however, a substantial counterclaim for some £17,000 for breach of warranty. The action was referred by consent in July last by Mr. Justice Hawkins to Mr. Justice Bueknill, then Mr. Bueknill, Q.C. His award found in favour of the plaintiff on the claim and counterclaim, but without costs, and directed judgment to be entered in accordance therewith. Since this the defendants had discovered that the plaintiff had based his commission on a sum which was inaccurate. The result of this was that £91 in excess of what was proper had been charged for commission. The defendants had paid this sum on threat of execution being levied if they did not pay. This excess was not disputed in the affidavits on the motion. Mr. McCall cited the case of “In re Keighley, Maxsted and Co. v. Bryan and Co.” (1893, 1 Q.B., 405), to show that the Court had powers even after judgment to remit an award on the ground of the discovery of new evidence since the making of the award. Whether the £91 was accidently charged or fraudulently in the first instance, the architect now knew that the £91 was not due, and he ought not to resist the application.
Mr. Avory, following on the same side, contended that, not only had the Court power to set aside the judgment, but also to enter judgment for the right amount. He cited for this the case of “ Clark v. Sonnenschein ” (25 Q.B.D., 226 and 464). Under Order XL., rule 2, a referee was bound to enter judgment; it was not a mere discretion.
Mr. Rose Innes said the plaintiff’s claim was, as was well known by the defendants, based upon an estimate only of the total expense. Probably the claim was not disputed, as the gigantic counterclaim occupied the minds of the defendants. This was a reference by order
injunction should be continued until the surveyor had set out such road, and the Court declined to make any further order on the motion. The plaintiffs appealed from this order except so far as it continued the interim injunction, and asked for an unqualified injunction in the terms of the notice of motion until the trial of the action.
Mr. Swinfen Eady, Q.C., Mr. Upjohn, Q.C., and Mr. Micklem were for the plaintiffs; Mr. Bray, Q.C., and the Hon. Frank Russell were for the defendants.
The Court dismissed the appeal.
The Master of the Rolls said that this was an attempt to ask the Court to do that which it was not in the habit of doing. The true nature of the fight was obvious. The plaintiffs objected to the smallpox hospital and there had been war going on ever since 1895 at least. The plaintiffs tried to stop the building of the hospital on the ground of nuisance, and they had failed. Now they were trying to stop it under the pretext of protecting the rights of the commoners. That was a mere excuse, and the rights of common were not really affected at all. In considering whether an interlocutory injunction ought to be granted, the Court would act upon the principles laid down in “ Attorney-General v. Sheffield Gas Consumers’ Company ” (3 De G., M., and G., 304). Assuming the rights of the plaintiffs to be as extensive as they were defined to be in “Pindar v. Wadsworth” (2 East., 154), and that any damage, however slight, was sufficient to support an action at law, this was a case of a merely temporary interference with the common, and it did not follow that the Court was bound to grant an injunction. The Court had to consider whether the remedy by injunction was really necessary for the protection of the rights of the plaintiffs. An injunction would not be granted where the plaintiffs’ rights would be adequately protected by the ordinary remedy. His Lordship thought that the terms imposed by Mr. Justice Stirling’s order were amply sufficient for the plaintiffs’ protection. The defendants were carting bricks along a track of the common, and at one part of the track it would be necessary to cut up the turf, but to suppose that the defendants could ever acquire thereby any rights over the common was out of the question. Upon the principle upon which the Court acted in “ Attorney-General v. Sheffield Gas Consumers’ Company,” and upon which this Court always acts in cases of merely temporary interference, his Lordship thought that an interlocutory injunction ought not to be granted.
Lords Justices Rigby and Vaughan Williams concurred.
HIGH COURT OF JUSTICE.
CHANCERY DIVISION.
January 19.
(Before Mr. Justice North.)
WHAT IS A NEW STREET?
THE ATTOBNEY-GENEKAL (AT THE RELATION OF THE URBAN DISTRICT COUNCIL OF STOURBRIDGE) AND THE DISTRICT COUNCIL V. RUFFORD AND COMPANY (LIMITED).
This was a motion on behalf of the relators and plaintiffs for an injunction to restrain the defendants, until the trial of the action or further order, from building or erecting any buildings or erections on land adjoining or abutting on Brick Kiln-lane, in the urban district of Stourbridge, so as to make or lay out that lane as a new street less than 30ft. wide. The question in dispute turned mainly on the construction s of section 63 of the Towns Improvement Clauses Act (10 and 11 Viet., cap. 34), which, with certain exceptions, is incorporated with the Stourbridge Improvement Act, 1866. Section 63 provides in effect that it shall not be lawful to make or lay out any “new street” in what is now the Stourbridge Urban Sanitary District unless the same be of a prescribed width, or, where no width is prescribed, unless the same, being a carriage road, be at least 30ft. wide. No width, so far as applies to the present case, has been prescribed for new streets under the Stourbridge Act of 1866. Brick Kiln-lane is an ancient public carriage road in the Stourbridge district, and is of a width varying from about 19ft. to about 28ft. With one exception there is and has been only one building (comprising two cottages) on the west side of the lane, and there are at present no buildings on the east side of the lane. There were formerly two cottages on the east side of the lane, which have been recently removed by the defendants. No other buildings have ever existed on the east side of the lane. The lane is bounded on either side by hedges, except that there is a brick wall in front of the two cottages on the western side, and except that on the same side, at the northern end, the defendant company have erected some buildings, which they use as a bath and glazed brick factory. Those buildings immediately adjoin and abut on the carriageway of the lane, and extend along the side of the carriage road for 485ft., or thereabouts. On June 14 last the defendants gave notice to the district council of their intention to erect upon land on the east side of the lane, and immediately opposite to their factory on the west side, some new
it, it is certain that some eminent authorities in America look upon these monopolies as contrary to the law. In this country, if I remember rightly, the question was mooted in the House of Commons & propos of the formation of the great Salt Union some years ago, but nothing definite came of it.
The Postmaster-General has announced that on Wednesday, February 1, he will be prepared to introduce, experimentally, in London a system under which he hopes that many householders will be able to post letters in their own houses. With this object the fees for private posting boxes, which have hitherto been available for large business firms and a few wealthy institutions and householders, will be reduced to a scale enabling the ordinary householder to avail himself of such a box. Each box must be provided by the user, easily accessible from the street, and of a pattern approved by the Postmaster-General, who will pay for the repair of the lock and keys thereof. I can understand that this scheme for making a house its own post office might be very useful in some cases. But there are again two ends to the stick. We all of us receive quite letters enough as it is. Will not the epistolary bore’s energies be stimulated to morbid activity by increased facilities? It will surely be a great temptation to him to be able to write a letter and post it without even having the trouble of going as far as the nearest pillar box.
STYLO.
legal ^rateeMitg*.
SUPREME COURT OF JUDICATURE.
COURT OF APPEAL.
January 21.
(Before the Master of the Rolls, Lord Justice Rigby, and Lord Justice Vaughan Williams.)
SMALLPOX HOSPITAL : ALLEGED INTERFERENCE WITH COMMON RIGHTS : INTERLOCUTORY
INJUNCTION REFUSED.
GARTON V. GUILDFORD, GODALMING, AND WOKING JOINT HOSPITAL BOARD.
This was .an appeal from a decision of Mr. Justice Stirling. In October, 1894, the Guildford, Godaiming, and Woking Joint Hospital Board purchased a plot of land of between two and three acres, situate upon and entirely surrounded by a common near the village of Worplesdon, Surrey, known as Whitmoor Common, for the purpose of erecting thereon a smallpox hospital. In November, 1894, the plaintiff, Mr. Garton, who was a neighbouring land-owner and commoner, and some other residents commenced an action to restrain the hoard from using the land which they had purchased for the purposes of a smallpox hospital so as to create a nuisance, and the writ was subsequently amended by adding the Attorney-General as plaintiff. The plaintiffs in that action, in addition to opposing the erection of the hospital as a nuisance, alleged that there were no proper means of access to the hospital site, and that it was only reached by tracks across the common, which were rough and full of holes and mere swamps in wet weather, that such tracks furnished the best grazing on the common, and that any attempt to metal or mend them would he an interference with their common rights. That action was tried in November, 1895, and was dismissed. In September, 1898, the board entered into a contract with Mr. Alfred Johnson for the erection of the hospital, and it was a term of the contract that the contractor should do as little damage as possible to the track on the common, and should carefully fill up all ruts and holes and promptly level up and replace the turf where damaged by the carting. Under this contract the hospital works were commenced in October, 1898. On November 29, 1898, the present action was commenced by Mr. Garton and׳ other commoners against the hospital board and the contractor for an injunction to res !.rain the defendants from destroying or injuring the turf on Whitmoor Common by carting materials or making a road across the common to the site of the intended hospital so as to interfere wifh the common rights of the plaintiffs, and served a notice of motion for an injunction in the terms of the writ. On December 2 an interim injunction was granted by Mr. Justice Stirling for a week, and this injunction was subsequently continued to enable the evidence to be completed. On December 21 the motion again came on before Mr. Justice Stirling, and the order of December 2 was modified. It was then ordered that—the defendants undertaking not to destroy the surface of the common or to interfere with the exercise by the plaintiffs of their rights of common of pasture or turbary or other common rights, except as to a track to be defined by a surveyor nominated by the Court at the request of the parties to set out a track within the limits of alleged destruction, which track was to he staked out, and the defendants further undertaking to abide by any order which the Court might make at the trial as to making good any damage to the soil of the common—the interim