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together form the parish of Kidderminster, are quite Wansey v. Perkins, 7 M. & G. 127, 137 ;
Mellish, Q.C., for the respondent, was not called Welsby, for the respondent. These separate parishes I might call townships, and if there is only one parish upon. church for these two townships—and the case does not
ERLE, C.J.—The objector has complied with all the say there are two churches, —then the two lists would essential requirements of the statute. Mr. Karslake, appear on the same church door,
however, objects that he has used the name instead of [Byles, J. Yes; but the statute says that the lists the pronoun “your ;” but the statute has been subare to be published on other places of worship than stantially followed. The next objection is, that the the parish church, and we must take judicial notice
names are transposed ; but the Interpretation Clause, that in such a place as Kidderminster there is more
section 101, provides that no misnomer or inaccuracy than one place of worship.]
of description shall vitiate a notice. I think that the Welsby thought he could not further maintain the notice was essentially what the statute requires. decision of the revising barrister, and
WILLIAMS, J.— The only question is, has the statute
been complied with? The information conveyed by THE COURT held that the notice was insufficient, as
this notice is precisely the same as if it were in the the objector must show on what list his name appears. form in the schedule. I think the notice, therefore, A person claiming to vote is not bound to find out in
is essentially in the required form. which of a number of separate lists an objector's name appears.
BYLES, J.-I am of the same opinion. “Your" is Judgment for the appellant. the pronomen, instead of which the objector has used
the nomina. Then it is said that the names are trans
posed. I doubt whether the surname is not more C. P. Force, Appellant, Floud,
important than the Christian name in such a case as 24 Nov. 1863. Respondent.
this, for in looking down the list it would more easily REGISTRATION APPEAL.
be found if placed first. Notice of Objection–6 Vict. c. 18, Sch. B. KEATING, J., concurred.
Judgment for respondent. Notices of objection to parties objected to as unentitled to vote, are sufjicient if they are snbstantially in the form given in 6 Vict. c. 18, Sch. B. No. 11.
DICKENSON v. NORTH-EASTERN This was an appeal from a decision of the revising
6 Nov. 1863.
RAILWAY COMPANY. barrister for the city of Exeter. In this case the form of the notice of ction was itself objected to as bad. Lord Campbell's Act (9 & 10 Vict. c. 93)It was as follows:--
Illegitimate Child. “I hereby give you notice that I object to the
An illegitimate child is not a person in whose interest name of Force, Sydney Rice, being retained on the list
or for whose benefit an action can be maintained under as entitled to vote, &c."
Lord Campbell's Act (9 & 10 Vict. c. 93). The form given in the Schedule B to the 6 Vict.
The plaintiff sued as administratrix of one Hannah c. 18, is as follows :
Dickenson, who was killed by the alleged negligence “To Mr.
of the defendants upon their line of railway. The “I hereby give you notice that I object to action was brought for the benefit of the plaintiff (as your name being retained on the list as entitled,” &c.
mother of the deceased), and William Dickenson, the
child of the said Hannah Dickenson. Upon the trial, The revising barrister held the notice valid.
before Mellor, J., at the last Durham Summer Assizes, Karslake, Q.C., for the appellant.
it appeared that William Dickenson was the illegiti. The form given by the statute has not been followed: the jury that the damages must be assessed only in
mate child of the deceased; and his Lordship directed it is impossible to tell which is the Christian name,
the interest of the mother. The jury found accordingly and which is the surname. The statute is very exact,
for 1501. and the claimant has a right to insist on a strict con. struction of it:
Price, Q.C., now moved for a new trial, contending 6 Vict. c. 18, ss. 13, 17 ;
that there had been misdirection. He submitted, Rogers on Elections, 121, 122.
tha here being no words of exclusion, the won There is no case in which a departure from the form "child ” in the Act meant any child of the deceased, has occurred,
illegitimate as well as legitimate. He cited
Dickinson v. Wright, 29 L. J. Ex. 150; in Error, the rent, and that notice had been rightly given to
This was a case stated by the magistrates, under 20
& 21 Vict. c. 43. The question arose under the 2nd
and 69th sections of the Public Health Act, 11 & 12 [POLLOCK, C.B., referred to
Vict. c. 63, and the 62nd section of the Local Govern-
ment Act, 21 & 22 Vict. c. 98. Wigram on Wills, p. 56.]
The 69th section of the Public Health Act enacted,
that “In case any present or future street, or any POLLOCK, C.B.–We are opinion there should be
part thereof (not being a highway), be not sewered, no rule. The word "child” in an Act of Parliament levelled, paved, flagged, and channelled, to the satisalways refers exclusively to a legitimate child.
faction of the Local Board of Health, such board BEAMWELL, CHANNELL, and PIGOTT, BB., con- may by notice in writing to the respective owners or ciuted.
occupiers of the premises, fronting, adjoining, or Rule refused. abutting upon such parts thereof as may require to be
sewered, &c., or channelled, require them to sewer,
&c., the same within a time to be specified in such Peek, Appellant, v. Tre WATERLOO notice ; and if such notice be not complied with, tho Ex.
AND SEAFORTI LOCAL BOARD OF 10 Yor. 1863.
said Local Board may, if they shall think fit, execute HEALTH, Respondents.
the works mentioned or referred to therein ; and the By the 69th section of the Public Health Act, 11 & 12 expenses incurred by them in so doing shall be paid Pict. c. 63, it is enacted that, “ In case any present or by the owners in default, according to the frontage of juture street or any part thereof (not being a high- their respective premises, and in such proportion as way) be not sewered, levelled, paved, flagged and chan- shall be settled by the surveyor.” melled to the satisfaction of the Local Board of Health, such The same section further enacts, that these expenses banl may by notice in writing to the respective owners may be recovered from the owners “in a summary of occupiers of the premises fronting, adjoining, or manner, or the same may be declared by order of the alattiag upon such parts thereof as may require to be said Local Board to be private improvement expenses, serered, dt., require them to sever, &c., the same and to be recoverable as such in the manner hereinridhia a time to be specificd in such notice ; and if such | after provided.” evdice be not complied with, the said Local Board may, The 2nd section of the same Act, which is the if they shall think fit, cxecute the works mentioned or Interpretation Clause of that statute, thus defines the referred to therein; and the erpenses incurred by them meaning of the word "owner" as used in the Act. in so doing shall be paid by the owners in default “The word owner shall mean the person for the time according to the frontage of their respective premises." being receiving the rack-rent of the lands or premises,
The 2nd section of the same Act defines the word in connection with which the said word is used,
The Local Board of Health for the borough of Sea- whereof the owner of the premises for or in respect of
1861, the owner of certain premises situate, &c., Held, that the person to be treated as owner for the which road on the day and year aforesaid was not purposes of the Act was the person de facto receiving sew
ewered, &c., to the satisfaction of the said Local
these facts :
Board of Health, who had, by a certain writing, dated The appellant had driven cattle off the land so pur15th of May, 1861, sealed with their common seal, chased, which cattle he believed to belong to W. F. and signed by five of their members, given the said R. Caddick, but he never told Caddick or respondents that Formby notice as owner of the said premises, they he had purchased the land described in the notice. being premises fronting the said road, within the space The land consists of sand hills, covered with a kind of of fourteen days from the date thereof, to sewer, grass on which donkeys will graze, and the appellant &c., so much of the said road as the said premises had turned out his donkeys to graze, but he did not fronted ; and that in caso the said R. Formby failed tell Caddick of that. The appellant had never set to comply with the notice within such time, the Local apart or railed off the land. Board might execute the said sewering, and that the The Justices were of opinion that R. Formby was in expenses incurred must be paid by the said R. Formby, receipt of rent for all the premises on the 15th of May, together with costs in default, if any, as therein 1861, the date of the notice, and that the appellant was mentioned.
owner thereof at the time of the completion of said Neither R. Formby nor any other person did the sewerage works on the 13th of March, 1862, and that requisite works within the time required, whereupon the appellant was liable for the payment of costs of the Local Board executed the same, and they were such sewerage works, and convicted him accordingly. completed on the 13th of March, 1862. In the infor- The question for the decision of the Court was, mation it was alleged that Francis Peek, the appellant, whether the appellant was bound by the notices to subsequently to the date and service of the notice R. Formby. became, and was at the time of the completion of the
C. Pollock, for the appellant. works, the owner of the said premises. The respective
The real owner was James Formby, who conveyed surveyor had duly apportioned the cost of executing the premises to the appellant in October, 1860. After such sewering, &c., and he declared Peek's proportion this conveyance, and up to Candlemas, 1862, Richard to be 1151. 8s., which had been duly demanded of Formby had been receiving rent for the land. Can Peek, and which he refused to pay, and which the the respondent contend that a mere payment of rent respondent had not declared to be private improve for land to a person who has no right to receive it, will ment expenses contrary to the statute, &c.
make that person an owner according to the definition On the hearing, the Justices ordered the appellant of the word given by section 2 of the Public Health to pay the 1151. 8s., and 10s. costs, to be levied by Act? distress, or to undergo seven days' imprisonment.
[BRAMWELL, B.-I understand you to contend that Upon the hearing of the information, the respondents notice to the person who merely receives the rent is proved that the road was not a highway repairable at not notice to the owner.] the public expense at the date and service of the said
Certainly not, unless he receives it in the capacity notice. That R. Formby did not reside in the mentioned in the Act. respondent's district at the date or service of the said
[Pigott, B.—The respondents might have obviated notice. The notice was served on R. Formby by being the difficulty by giving notice to the occupier.] directed to him, and transmitted through the post- Just so. Under the 2nd section of the Public Health office. It was also proved that the land described | Act, notice can be served on the occupier or on the was occupied by one J. Caddick, with other premises, owner. The best way of deciding this question is, to and that R. Formby received the rent of the whole consider the definition of the word “owner,” given in from him at the date of the notice, and up to the 2nd the interpretation clause of the Act (section 2). of February, 1862; and that also R. Formby gave “ Owner" is there stated to mean a person who reCaddick notice, dated 30th of July, 1861, to quit the ceives the rent of premises on his own account, or as premises on the 2nd of February, 1862, which Caddick agent or trustee for another. In the present case, R. did.
Formby did not receive the rents on his own account, R. Formby received the rent of the whole up to and there are no reasons whatever for saying that he Candlemas, 1862, and the receipt for it was produced ; | took them as agent or trustee for another. it appeared as if he received such rent as absolute
[BRAMWELL, B.—Then R. Formby received the rent
by pure mistake ?] On the hearing of the information, it was admitted
The case is not quite definite on this point; but by the appellant that the notice had been served on
there are no grounds for assuming that he received as R. Formby, that the work had been properly done, agent for his brother J. Formby, who was the next and the apportionment correctly made, and it was
owner before the conveyance to the appellant. The proved by the production of a conveyance dated 31st statute, when it speaks of a person receiving the rent, of October, 1860, that the appellant became and was
means a person who receives it by virtue of some legal the owner thereunder of the said premises, having
right. If the money has been received by pure mispurchased the same from one James Formby, and that take, the receiver is not an owner within the Act. he never had any knowledge of the notice of the 15th of May, 1861, until the works had been executed.
L. Temple, for the respondents.
The question is, whether the respondents have fol- land to the wrong person, and is not, I think, in a lowed the directions of the Act in this case. They position to complain. find that the rent is paid to R. Formby, and notice to
CHANNELL, B.-I concur. quit given by him to the tenant is also proved. The
I quite agree that the respondents therefore have complied with the Act so
person, owner de facto, was the proper person to be far as they could.
served with notice. A person receiving rent for land (Pigott. B. - Should not the respondents have may, in the absence of anything tending to show that treated R. Formby as owner throughout the whole he receives it for another, be assumed to receive it for
his own account. The notice was sufficient to originate proceedings ? This they have not done.]
They have served with notice the person receiving proceedings, and, if they were properly continued, the rent, and that is all the Act requires. R. Formby
everything was done in compliance with the Act. I was liable to the real owner for the money he re
do not see that there is any hardship on the owner in ceived.
the present case. [BEANWELL, B.-Suppose a tenant pays rent to a
Pigott, B. — Notice to R. Formby, and proper supposed landlord, who has no right to the premises, execution of the works, having been admitted, the could the latter be served with notice ?}
only question which remains is, whether the provisions Yes; or else Local Boards would be under the of the act with regard to notice have been complied necessity of inquiring into the title to ascertain who with. Although my mind is not free from doubt on is the real owner.
the subject, I do not, on the whole, consider that [Pigott, B.—In cases of any doubt, why not serve notice to the rightful owner is made requisite by this notice on the occupier !)
Act. Assuming this, notice to the de facto receiver of The occupier might be a wrongful one also. The rent would be sufficient. If there was any hardship intention of the Legislature is shown by their using
on the appellant in this case, it was his own fault. the words “receiving the rent,” instead of “entitled
Judgment for the respondent. to receive the ront." The notice to R. Formby was sufficient. C. Pollock, in reply.
EASTON and Another v. PRATT 13 Nov. 1863.
and Another. POLLOCK, C.B. - We assume no question to arise bere as to the character of the rent which may be
Lease under Power-Repairing Lease. taken to be a rack-rent. Such being the case, I am of
Where a messuage and premises, used as a tan-yard, opinion that our judgment should be for the re
were devised to M E for life, with power to grant spondents. It would have been better, no doubt, to
“ building or repairing leases” for the term of sixty-one have served notice on the occupier, which would have years, and M E demised to H for forty years, II coveavoiled the difficulty ; but hero notice has been given ranting only in the terms usual in farming and other to the person actually receiving rent, and who was, in cases, to repair, amend, and paint, dc. :ny opinion, an "owner” according to the definition
Held, that this was not a good repairing lease, under of the word given by the interpretation clause of this
the terms of the power. Ict. Notice having been properly served, the appellant was rightly made liable for these expenses.
EJECTMENT, to recover a piece of land, messuage,
and premises, situated at Bermondsey, which had for BRAMWELL, B.- I am of the same opinion. At the many years been used as a tan-yard. The plaintiffs time notice was given, R. Formby was receiving the claimed under the will of one Charles Easton. It rents of the premises, and was the ostensible landlord. appeared that in the year 1795, the then Marquis of The question then is, whether the Act which requires Salisbury conveyed the premises in question to the notice to be served on the owner, and defines owner as above-named Charles Easton, who by his will, dated a person receiving the rent, &c., means a rightful the 4th of September, 1828, devised the same premises receiver ! I am of opinion that such was not the as follows :-He devised “ All that his freehold house, intention of the Legislature here, and that a de facto sheds, yards, and premises, &c., at which he then receiver is meant by the words used in the Act. This resided, unto his three daughters, Sarah Smith Easton, notice was, therefore, sufficient, having been given to Abigail Easton, and the said Mary Easton, to hold to the person actually receiving the rent. I do not con- them and the survivors and survivor of them, during sider that the Legislature meant to oblige the Local | the term of their natural lives, with full power to Boards to ascertain who is the rightful owner of the them or her to grant leases thereof, or of any part there. lands, &c., with which they have to deal. All they of, for a term or terms not exceeding twenty-one years, ean be reasonably expected to do is, to find out who is at a rack-rent, and without taking any premium or the de facto receiver of the rent. I do not see that premiums for the same, or on building or repairing there is any hardship on the appellant here. He has leases for the term of sixty-one years." Charles Easton beca negligent enough to allow rent to be paid for his died in 1832. On the 29th of September, 1959, Mary Easton (who was then the survivor of the three daugh- &c., to enter upon the premises to view the state of ters, devisees of Charles Easton), by indenture of lease repair of the same. made between herself, of the first part, and Henry Shortly after the date of this lease, Hunt deposited William Hunt, of the other part (being the lease in ques- it with the Real and Personal Advance Company tion), demised the premises to Hunt; and the following (Limited), to secure money lent to him by them, and are the parts of the lease important for the present ques. on the 3rd of August, 1860, he and the said Mary tion :-“The said Mary Easton, pursuant to and in Easton joined in executing a legal mortgage of the exercise of the hereinbefore-recited power or authority, above premises to the same company, to secure a and of every other power or authority enabling her in further sum of money advanced by them to Hunt. that behalf, doth demise and lease unto the said Eventually, Hunt and Mary Easton both became H. W. Hunt the said house, sheds, &c. (being the insolvent, and the mortgagees took possession of the premises in question), to hold the same, with their premises under the powers contained in the mortgaga appurtenances, unto the said H. W. Hunt, his deed. Mary Easton died in September, 1862, and the executors, &c., from the 29th of September instant for plaintiffs sought to recover possession of the premises the term of 40 years, at the yearly rent of 1101. And from the defendants, who were tenants to the mortthe said H. W. Hunt covenanted that he the said gagees, on the ground of the above lease of the 29th H. W. Hunt, his executors, &c., should and would, at of September, 1859, being an invalid execution by his and their own costs and charges, when and as Mary Easton of the power given her by her father's often as need should require during the term thereby will. granted, well and sufficiently repair, uphold, support, The cause came on for trial before Bramwell, B., at paint, maintain, amend, and keep the thereby-demised the last Croydon Assizes, when a verdict was found for premises, and all buildings thereafter erected by him the plaintiffs, leave, however, being reserved to the thereon, and all pavements, water-fences, &c., and defendants to move to set it aside ; and it was other appurtenances belonging, or which should arranged that the state of the premises at the date of belong, to the same premises, in, by, and with all the lease should be ascertained by reference to an arbimanner of needful and necessary reparations, clean- trator then named. In pursuance of the reference, the ings, scourings, and amendments whatsoever. And arbitrator made his award to the effect that, at the the said demised premises, with the appurtenances, as time of the lease, with the exception of one shed, which being in all things well and sufliciently repaired, had been recently rebuilt and put into good repair, upheld, supported, amended, and kept together, with the premises, though in fair tenantable repair-regard all doors, wainscots, locks, keys, bars, staples, hinges, being had to their class and condition-were, neverhearths, marble and other chimney-pieces, mantel- theless, so old, as to be likely at any time to become pieces, chimney-jambs, foot-paces and slabs, covings, untenantable, and unfit for the purpose for which they glazed windows and sashes, windows, window shutters, had been used, by tho mere operation of time and partitions, pumps, pipes, posts, rails, racks, mangers, ordinary wear and tear. A rule having been obtained and all such things as now are, or at any time here- pursuant to the leave reserved, aster during the said term hereby granted shall be, anyways fixed or fastened to, or set up, in or upon, Lush, Q.C., and Murphy, now showed cause. or which shall belong to the said demised premises, The question is, whether or not the lease of the 20th shall and will, at the expiration, or other sooner deter- September, 1859, to Hunt was a good execution by mination of the term hereby granted, peaceably and Mary Easton of the power given to her in that behalf. quietly surrender and yield up unto the said Mary It was not a building or repairing lease within the Easton, or her assigus, or the person or persons power, for Hunt only covenants to make the ordinary entitled as aforesaid. And further, that he the said repairs, &c., enjoined on the lessee in every ordinary Henry William Hunt, his executors, administrators, lease, and assigns shall and will, as often as need shall Doe d. Dymoke v. Withers, 2 B. & Ad. 896. require during the term hereby granted, bear, pay, The power gave the alternative of making leases or allow a reasonable share or proportion of the cost or either for twenty-one years or for sixty-one years charge of making, supporting, repairing, amending, because, if it were thought advisable to carry on the and cleansing, as well all party walls, party gutters, old business, then the first kind of lease would lia common sewers, public sewers, and drains belonging, advantageous ; whereas if building or repairing leases or which at any time during the term hereby granted should be thought preferable, then the larger term of shall belong to the said demised premises, as also of all sixty-one years would be the most convenient. Here, drains and cominon or public sewers in the said parish of however, the lease was within neither of the powers. Bermondsey, into or through which any water or soil The words must be read as “ on building and repairing coming or running, or to come or run, from the said leases." messuage or dwelling-house and premises hereby The arbitrator substantially found that at the time demised, or any part thereof, shall pass. Power is the lease was made the premises required no repairs then reserved to the said Mary Easton, or her assigns, for the ordinary purpose of letting.