4, c. 61. Sect. 4 of that Act empowers the justices assembled at the general annual licensing meeting in every year to appoint special sessions, "at which special sessions it shall be lawful for the justices then and there assembled. . . . to licence such persons intending to keep inns theretofore kept by other persons being about to remove from such inns, as they the said justices shall, in exercise of the powers herein contained and in exercise of their discretion deem fit and proper persons under the provisions hereinafter enacted, to be licensed," &c. And sect. 11 provides that " every person holding a licence under the authority of this Act, or his heirs, executors, &c., being desirous to transfer such licence to some other person, and intending to apply at the special session then next ensuing for permission so to do, shall, five days at least prior to such special session, serve a notice of such his intention upon one of the overseers of the poor, and one of the constables of the parish... in the form in schedule B, signed by the party intending to make such application, or by his agent thereunto authorised, and setting forth the Christian and surname of the person to whom it is intended that such licence shall be transferred, together with the place of his residence, and his trade or calling, during the six months previous to the time of serving such notice." Here the vendors were not "persons holding a licence under the authority of the Act," and could not transfer the licence under sect. 11; and time being of the essence of the contract, we were not bound to wait till they could take proceedings under the 14th section. (a) There being no valid licence we

(a) Sec. 14 provides that "if any person, duly licensed under this Act shall (before the expiration of such licence) die, or shall be, by sickness or other infirmity, rendered incapable of keeping an inn, or shall become bankrupt, or shall take the benefit of any Act for the relief of insolvent debtors; or if any person so licensed, or the heirs, executors, administrators, or assigns of any person so licensed, shall remove from or yield up the possession of the house specified in such licence; or if the occupier of any such house, being about to quit the same, shall have wilfully omitted, or shall have neglected to apply at the general annual licensing meeting, or at any adjournment thereof, for a licence to continue to sell exciseable liquors by retail, to be drunk or consumed in such house; or if any house, being kept as an inn by any person duly licensed as aforesaid, shall be or be about to be pulled down or occupied under the provisions of any Act for the improvement of the highways, or for any other public purpose, or shall be by fire, tempest, or other unforeseen and unavoidable calamity, rendered unfit for the reception of travellers, and for the other legal purposes of an inn, it shall be lawful for the justices assembled as aforesaid at a special session holden under the authority of this Act, for the division or place in which the house so kept or having been kept shall be situate, in any one of the above-mentioned cases, and in such cases only, to grant to the heirs, executors, or administrators of the person so dying, or to the assigns of such person becoming incapable of keeping an inn, or to the assignee or assignees of such bankrupt or insolvent, or to any new tenant or occupier of any house having so become unoccupied, or to any person to whom such heirs, executors, administrators, or assignees shall, by sale or otherwise, have bonâ fide conveyed or otherwise made over his or their interest in the occupation and keeping of such house, a licence to sell exciseable liquors by retail, t› be drunk or consumed in such house or the premises thereunto belonging, or to grant to the person, whose house sha!!, as aforesaid, have been, or shall be about to be, pulled down or occupied for the improvement of the highways, or for any other public purpose, or have become unfit for the reception of travellers, or for the other legal purposes of an inn,

[CHAN.

should in the interval have been exposed to a penalty of 51. for every glass of beer we sold, under sect. 18, which enacts that persons selling exciseable liquors without a licence shall be liable to a penalty of not more than 201., and not less than 51., for each offence. We therefore contend that we were entitled to repudiate the contract, and that the plaintiffs' bill should be dismissed with costs. They also referred to

Claydon v. Green, 18 L. T. Rep. N. S. 607; L. Rep. 3
C. P. 511.

Southgate, Q.C. and Horton Smith, for the plaintiffs, contended that the purchaser, having been informed that the licence was in the testator's name, and having taken no objection to that when the abstract was before him, had waived the objec tion, and could not now raise it. Moreover, the objection was merely formal, as the purchaser could have carried on business safely under the irregular licence, and any penalties that might have been incurred would have fallen on the plaintiffs, and not on him.

Daniel Jones, for the testator's widow.
No reply.

Lord Justice JAMES said that he was of opinion that the decision of the Master of the Rolls in this case could not be reconciled with his former decision in Day v. Luhke (L. Rep. 5 Eq. 336). In the case of the sale of a public house as a going concern, time was necessarily of the essence of the contract, for the person who bought a public house did so for the purpose of occupying it and carrying on business in it, and it would be very injurious to him if he could not commence business at once. His Lordship thoroughly agreed with what was said by the Master of the Rolls in Day v. Luhke on this subject. In the present case the 16th of Nov. 1870 was the day fixed for completion, and the vendors were bound to show that they were on that day in a position to transfer to the purchaser a licence under which he could lawfully carry on the business of selling excisable liquors by retail, to be consumed on the premises. Beyond all question the vendors were not on that day in a position to transfer such a licence to the pur

and who shall open and keep as an inn some other fit and convenient house, a licence to sell exciseable liquors by retail, to be drunk or consumed therein: Provided always, that every such licence shall continue in force only from the day on which it shall be granted until the 5th April or the 10th Oct. then next ensuing, as the case may be: Provided also, that every person intending to apply in any of the above-mentioned cases at any such special session for a licence to sell exciseable liquors by retail, to be drunk or consumed in a house or premises thereunto belonging, in which exciseable liquors shall not have been sold by retail, to be drunk or consumed on the premises, by virtue of a licence granted at the general annual licensing meeting next before such special session, shall, on some one Sunday within the six weeks next before such special session, at some time between the hours of ten in the forenoon and of four in the afternoon, affix or caused to be affixed on the door of such house, and on the door of the church or chapel of the parish or place in which such house shall be situate, and where there shall be no church or chapel, or some other public and conspicuous place within such parish or place, such and the like notice as is hereinbefore directed to be affixed by every person intending to apply at the general annual licensing meeting for a licence to sell exciseable liquors by retail, to be drunk or consumed in a house not theretofore kept as an inn, and shall in like manner serve copies of the said notice on one of the overseers of the poor, and on one of the constables or other peace officers of such parish or place.

V.C.W.]

chaser. The licence to a dead man was a mere nullity, and consequently they had nothing at all to transfer to the purchaser on the day fixed for completion. It was said that the vendors could remedy the irregular renewal of the licence under the 14th section of the statute 9 Geo. 4, c. 61, and probably they could do so. But how long was the purchaser to wait? He was clearly not bound to wait till the next session of the magistrates to see whether the vendors could set the matter right under the 14th section, and then transfer the licence to him under the 11th section of the Act. They had intimated no intention to take any steps to rectify their mistake even on filing the bill. As for the question of waiver, his Lordship was of opinion that the purchaser had done nothing to waive his objection; in answer to his requisition, in whose name the licence was standing, the vendors had replied, that it was standing in the name of the testator, and that it would be transferred by the executors in the usual way. This, however, the executors were not in a position to do. It had not been brought clearly before his mind that the licence had been renewed in the name of the testator after his death, and it would be mischievous to hold that the purchaser was bound by notice of the date of the testator's death. In his Lordship's opinion the present case was entirely governed by Day v. Luhke (sup.) and as the vendors were not in a position to transfer a valid licence to the purchaser on the day fixed for completion, their bill for specific performance of the contract must be dismissed with costs. The defendant to have his costs in the court below, his deposit repaid with interest at 4 per cent. per annum, and the costs of an injunction made by the Master of the Rolls to restrain an action for the recovery of the deposit, &c.

Lord Justice MELLISH Concurred.

Solicitors for the appellant, H. J. and T. Child.
Solicitor for the respondents, Frederick Mason.

V. C. WICKENS' COURT. Reported by EDWARD WINSLOW, Esq., Barrister-at-Law.

Thursday, July 27, 1871.

Re MARYLEBONE IMPROVEMENT ACT 1868;
Ex parte TOPPle.

Lands Clauses Act (8 Vict. c. 18), ss. 78, 80--Pur

chase under-Leases granted by landlord after notice to treat-Compensation-Costs. The Metropolitan Board of Works gave notice to treat for the purchase of houses. After notice the landlord granted leases for three years to his weekly tenants. The tenants sent in their claims for compensation, which, after some litigation, failed. Subsequently the landlord petitioned for payment of his purchase-money, which had been paid into court under the Lands Clauses Act, when the board claimed to be reimbursed for the costs they had incurred in adjusting the claims of

the tenants:

[V.C. W.

In May 1839 the Metropolitan Board of Works, under the provisions of the Marylebone Improvement Act 1868, which embodied the Lands Clauses Act, gave notice to the petitioner for the purchase of three houses, of which he was the landlord, and which were then let to three weekly tenants. Shortly after receiving the notice the petitioner granted to each of the three tenants leases for three years. There had been no previous agreement between the petitioner and his tenants for effecting this arrangement, but it was done, as the petitioner admitted, at his instance, with a view of giving the tenants a claim to compensation.

In Feb. 1870 the petitioner sent in his claim against the Board of Works, but the arbitrator, in making his award, treated the leases as non-existent, and the compensation money was paid into court on that footing. In March 1871 the tenants sent in their claims, and an award having been made upon them, on the supposition that they were valid, the compensation money was paid into court. In July 1871 the tenants presented a petition for payment of this money out of court, but the Master of the Rolls decided that they were not entitled to it, and dismissed the petition without costs.

The present petition was presented by the landlord for payment of his compensation. The Board of Works had paid about 2001. in adjusting the claims set-up by the tenants, and they now asked to be recouped out of the money to which the petitioner was entitled.

Dickinson, Q. C. and Bagshawe, in support of the petition, submitted that the landlord was not answerable for the costs incurred by the board. He had made no secret of the circumstances affecting the tenants' claims, and the board might have refused at once to entertain them, without going to the expense of assessment. They further submitted that the petitioner was entitled to interest on the purchase money.

Greene, Q. C. and Charles Hall, for the Board of Works, contended that the court had power to make the applicant pay the expense to which the board had been so unnecessarily put. The 78th section of the Lands Clauses Act gave the court power to make such order as it thought fit, and the 80th section, after directing payment of costs by the board, except in certain cases specified

in the Act, went on to enact that it should be "lawful" for the court to order such payment; thus giving a discretionary power to the court. The practice of manufacturing claims was a growing one, and ought to be discouraged. As to the interest asked for, the court had no jurisdiction to grant it.

Dickinson, Q. C. in reply.

The VICE CHANCELLOR.-I am of opinion that the money in court cannot be treated as a fund out of which the board can be indemnified for the expenses they have incurred in settling the claims of the petitioner's tenants. I consider that I have no discretion in the matter; but even if I had, I should have hesitated long before permitting any portion of the fund to be applied for such a purpose. The claim set up by the board, if it can be enforced, is not one to be made here or now. With regard, however, to the costs of the present application the case is different. It does

not lie in the mouth of the petitioner to say that the board were unnecessarily alarmed at his goodnatured, but ill-considered, attempt to compensate his tenants out of the board's pocket. His conduct has entailed upon the board unnecessary expense, and I think I shall only be doing justice if I go to the full extent of my jurisdiction under the Act, and refuse him his costs of this application. I do not think I have jurisdiction to make him pay the costs, otherwise I might have done

So.

With regard to interest, I consider that I have no power to make the board pay it, and I am not sure that, even if I had the power, I should have exercised it in the applicant's favour. Solicitors: Kernot and Rawlinson; W. W. Smith.

COURT OF QUEEN'S BENCH. Reported by J. SHORTT and M. W. McKELLAR, Esqrs., Barristers-at-Law.

Thursday, Nov. 9, 1871.

BRADLEY V. Sylvester.

Quo warranto-Clerk to a school board-Office held during pleasure of the board.

Upon an application for a writ of quo warranto against the clerk to a school board, on the ground that he was improperly elected according to the provisions of 33 & 34 Vict. c. 75, s. 35; The Court refused a rule, considering that the majority of the board might, without assistance, remedy the impropriety themselves, the office being held during the pleasure of the board.

Gane moved for a rule for quo warranto, calling upon the Rev. W. T. M. Sylvester to show cause by what authority he acted as clerk to the school board of the borough of Castleford. By 33 & 34 Vict. c. 75, s. 35, "A school board may appoint a clerk and a treasurer and other necessary officers, including the teachers required for any school provided by such board, to hold office during the pleasure of the board, and may assign them such salaries or remuneration (if any) as they may think fit, and may from time to time remove any of such officers; but no such appointment shall be made, except at the first meeting of the board, unless notice in writing has been sent to every member of the board." [BLACKBURN, J.-But is it a case in which quo warranto will lie? It will not lie against a churchwarden, and why should it here? You might as well say it would lie in the case of a secretary to a railway company. This question was discussed in Darley v. The Queen (12 Cl. & F. 520.] The two cases are not analogous, for the secretary to a railway company is appointed by a private corporation to deal with private funds, whereas the clerk to a school board is appointed under a statute, and one of his duties is to countersign all orders of the board for the payment of money. It was held by Campbell, C.J. and Erle, J. in the case of Reg. v. St. Martin-inthe-Fields (17 Q. B. 149), that an appointment immediately or mediately by statute, where the officer had to countersign cheques for the payment of money raised by a rate was to a great extent at least a public appointment. Sect. 54 of the Act above mentioned provides that a deficiency in the school funds shall be supplied by a rate. In May last the second meeting of the Castleford School Board was held to consider applications for their clerkship. Two candidates were selected-viz., Bradley and Sylvester and a poll was taken.

[Q. B.

Six members of the board were present, one of whom remained neutral. Three members first voted for Bradley, one of whom afterwards also voted for Sylvester. This made the recorded votes for each candidate equal, and the Chairman gave a second or casting vote in favour of Sylvester, whom he thereupon declared to be elected. At the following meeting a protest was made against the election; but it was overruled by the chairman. Another ground of objection is that the election did not take place at the first meeting of the board, and that no notice was given according to the statute. [COCKBURN, C.J.-The tenure of the office is only during the pleasure of the board; and it was held in Re Fox (27 L. J. 151 Q.B.) that an information will not be granted in the case of clerk to borough justices, as such clerk is removable at the pleasure of the justices.] In Reg. v. St. Martin-in-the-Fields, above cited, the appointment of clerk to the Board of Guardians for life and during sanity, or until resignation or removal, was held quamdiu se bene gesserit, and was subject to a writ of quo warranto.

COCKBURN, C.J.-Upon consideration of the case of Darley v. The Queen, and the provisions of this statute, it may be that a writ of quo warranto may be applicable to the office of clerk to a school board; at all events, I will not now undertake to say that it could not lie against the defendant. If it would lie we should still have to exercise our discretion as to granting a writ. Here the ground upon which we are asked to interfere is an impropriety in the election, and as the office is held at the pleasure of the board, it is competent for the board to do what might be accomplished by our interference. If the election were really effected by a colourable majority, or upon insufficient notice, the real majority have the power to eject the present clerk, and to elect the person whom they prefer. At all events, it should be shown before asking this court for a writ that some other attempt than a mere protest, overruled by the chairman, has been made to obtain the assistance of the board to remedy the impropriety complained of.

BLACKBURN, MELLOR, and HANNEN, JJ. concurred. Rule refused. Attorneys for applicant, Blakeley and Beswick.

Saturday, Nov. 11, 1871.

POUND (app.) v. THE BOARD OF WORKS FOR THE PLUMSTEAD DISTRICT (resps.).

LORD NORTHBROOK (app.) v. THE BOARD OF WORKS FOR THE PLUMSTEAD DISTRICT (resps.). New street-Expenses of draining and pavingApportionment Metropolis Management Act, 1855 (18 & 19 Vict. c. 120), ss. 105, 250-Metropolitan Management Amendment Act, 1862 (25 & 26 Vict. c. 102), ss. 77, 98, 112.

At the time of the passing of the Metropolis Management Act, 1855, a certain lane, having but a few houses near it, was kept in repair as a highway by the parish. Between the hedges which bordered the adjoining fields, there was an average distance of about forty feet, but only eighteen feet in the middle of this space was kept as a hard metal road. Since that time, both before and after the passing of the Metropolis Management Amendment Act, 1862, a great many houses have been built on both sides of this lane; a sewer, at the

summonses mentioned, a line of railway had been constructed by the South-Eastern Railway Company, crossing the highway in question nearly at right angles to it, and at a distance of 850 yards or thereabouts southwards from Lee-green. It is this length of road from Lee-green to the southern side of the land occupied by the South-Eastern Railway Company, extending to 850 yards or thereabouts, which the board allege to be a new street within the meaning of the Metropolitan Management Acts; and the portion which they have paved or propose to pave under the powers thereby conferred upon them, is so much as is not comprised in the eighteen feet described as having been repaired as hard road. All the houses mentioned in this case are in and upon this length of road, and the board have apportioned the estimated expenses of paving the same upon the owners of all the said houses. The appellant (Mr. Pound) is owner of several of the said houses, some of which were built prior to Aug. 1862, and part of the claim of the board against him is in respect of the said houses.

Subsequently to the 7th Aug. 1862 other houses were built on both sides of the highway in ques

tion.

Before the 7th Aug. 1862 nothing had been built on the east side of the highway in question, but between that date and the date of the summonses, fifty-six houses had been built on that side.

In the year 1862, and before the passing of the 25 & 26 Vict. c. 102, the board received an application from the owners to construct a sewer which had become necessary for the drainage of the new houses on the highway in question, which had by that time been built. The board agreed to the proposal, on condition that the owners paid two-thirds of the expense, and constructed, on these conditions, 1350ft., commencing at the north end. Subsequently, in the year 1865, the sewer was carried on a further length of 1050ft., and in 1867 a further length of 2110ft., the board having agreed to construct the further lengths on the same conditions.

In the year 1856 the board constructed a footpath on the western side of the highway in question, commencing at Lee-green, of 8ft. in width, and 1100ft. in length, and paved the same, that is to say, made the top thereof hard with suitable gravel; and have, from the time of its said construction, repaired and maintained the same. In the year 1863 the board constructed a similar footpath on the eastern side of the highway in question of the length of 300ft. and 8ft. in width, and have, since its construction, maintained and repaired the same. At the time of the constructing the path last mentioned, the board made a hard carriage road on the spaces then remaining between the said footpaths and the said 18ft. of hard road which had always existed, so as thereby to construct a hard road comprising the whole of the width between the said footpaths, and have since repaired the same. All the expenses of the above works were defrayed, and repairs paid for, by the board out of the general rates. All the said expenses are included in the estimates of the costs now caused to be made by the board as hereafter mentioned and sought to be recovered from the appellants.

Although between some of the houses on both sides of this road there are distances of various lengths, yet the building plots on which the houses

[Q. B.

stand are actually contiguous, except where the roads occur. Many of the houses above-mentioned have been and are occupied, and such houses have from the time of occupation been rated by the board for the same purpose and to the same extent as all the other occupied property in the district.

In consequence of the erection of so many new houses, 112 in all, of which 90 have been built since the 7th Aug. 1862, the board have now determined it to be necessary to form and pave proper and convenient footpaths each side of the highway in question similar to and in continuation of those already formed and paved as before mentioned, and a portion of the road to the width of 8ft. is intended to be appropriated on each side for that purpose; and the board have also determined to make, in continuation of the length of 300ft. constructed in 1862, a hard carriage-road along the residue of the highway in question, on the spaces between the said footpaths and the said 18ft. of hard road which has always existed.

In order that such paving of the footpaths and carriage-road as have now been determined on by the board may be done, and that the expense of doing such as has been previously paved may be repaid to the board, the board have caused proper estimates to be made of the cost of the whole works, and have apportioned the cost among the several owners of houses and land bounding and abutting on the highway in question, under the powers of the 25 & 26 Vict. c. 102,

s. 77.

The several appellants are such owners of houses and land so bounding or abutting on the highway in question, and the amount sought to be recovered from each is admitted to be his share under such apportionment, assuming the board are entitled to recover the cost of the whole works, and provided also, as to Lord Northbrook, that he is liable to be charged as follows:

The new roads on the west side of the highway previously alluded to are five in number, and are at present private roads, and Lord Northbrook is the owner of the soil and freehold thereof, and the amount sought to be recovered from him by the board, 1447. 13s., is charged upon him solely as the owner of the said private roads, considered as land within the 77th section of the Act 25 & 26 Vict. c. 102, according to the width left between the forecourts of the houses in the highway in question, forming the corners of the said private roads; and such amount is charged at the same rate and in all other respects as the frontage of houses is charged. Lord Northbrook has no exclusive possession or occupation of such private roads, the same having been laid out and formed for the common use of the lessees and occupiers of property in the said private roads, and the several leases by the said Lord Northbrook grant such common use to the several lessees and their tenants.

The appellants contend that the board has no power to cast upon the owners of the houses and land adjoining to and in and upon the highway in question, as the cost of paving the same, the amounts now sought to be recovered. The board contend that they have such power.

The question for the court was, which of these contentions is correct. If the court should be of opinion that the board have not the power for which they contend, the orders of the magistrate