HIGH COURT.

REG. v. BURROWS AND ANOTHER (JUSTICES). Ex parte WILSON. (a.) Justices-Summary jurisdiction-Procedure-Order to have child vaccinated--Costs of complainant-Distress—“ Civil debt”—Summary Jurisdiction Imprisonment— Acts, 1848 (11 & 12 Vict. c. 43), s. 18; 1879 (42 & 43 Vict. c. 49), s. 6.

An order was made by justices, under the Vaccination Act, 1867, s. 31, ordering the parent of a child to have the child vaccinated within a certain time, and to pay Ss. 6d. costs to the informant. The order further provided that the payment of the costs should be enforced by distress and imprisonment.

Held, the justices had power under section 18 of the Summary Jurisdiction Act, 1848, to order that the payment of the costs should be so enforced, and that such power was not affected by section 6 of the Summary Jurisdiction Act, 1879.

Rule nisi for a certiorari to bring up and quash an order made by the justices of Maidenhead.

Information was given to the justices under the Vaccination Act, 1867 (30 & 31 Vict. c. 84), s. 31, that the informant had reason to believe that the defendant's child had not been successfully vaccinated. The defendant was summoned to appear before the justices, who made an order that the child should be vaccinated within a specified time and that the costs of the informant to the amount of 8s. 6d, should be paid by the defendant to the informant. It was further ordered that the payment of the costs should be enforced by distress, and in default of distress, by imprisonment.

A rule nisi for a certiorari was granted to bring up and quash the order upon the ground that the justices had no power to order the payment of the costs to be enforced by distress and imprisonment.

The Vaccination Act, 1867, s. 31, provides: "If any registrar, or any officer appointed by the guardians to enforce the provisions of this Act, shall give information in writing to a justice of the peace that he has reason to believe that any child under the age of fourteen years, being within the union or parish for which the informant acts, has not been successfully vaccinated and that he has given notice to the parent ... to procure its being vaccinated, and this notice has been disregarded, the justice may summon such parent... to appear with such child before him. and may, if he see fit, make an order under his hand and seal directing such child to be vaccinated within a certain time. ." The section further provides that upon disobedience of the order the parent shall be proceeded against summarily and shall be liable to a penalty.

The costs were awarded by virtue of the Summary Jurisdiction Act, 1848 (11 & 12 Vict. c. 43), s. 18, which was incorporated by the Vaccination Act, 1867. That section also provides as follows: "The same (meaning the costs) shall be recoverable in the same manner and under the same warrants as any penalty or sum of money adjudged to be paid in and by such Conviction or order is to be recoverable; and in cases where there is no such penalty or sum to be thereby recovered, then such costs shall be recoverable by distress and sale of the goods and chattels of the party and in default of such distress by imprisonment, with or without hard labour, for any time not exceeding one calendar month unless such costs shall be sooner paid."

(a.) Reported by C. G. WILBRAHAM, Esq., Barristerat-Law.

HIGH COURT.

The Summary Jurisdiction Act, 1879 (42 & 43 Vict. c. 49), s. 6, provides: "Where under any act, whether past or future, a sum of money claimed to be due is recoverable on complaint to a court of summary jurisdiction and not on information, such sum shall be deemed to be a civil debt, and if recovered before a court of summary jurisdiction shall be recovered in the manner in which a sum declared by this Act to be a civil debt recoverable summarily, is recoverable under this Act, and not otherwise; and the payment of any costs ordered to be paid by the complainant or defendant in the case of any such complaint shall be enforced in like manner as such civil debt, and not otherwise."

Macmorran, Q.C. (McCarthy with him), showed cause. Under the provisions of the Summary Jurisdiction Act, 1818, the justices have power to deal with three kinds of matters: (1) Offences, in which case the procedure is by information followed by conviction; (2) proceedings to recover money, the procedure being by complaint followed by an order; (3) applications for an order against the defendant ordering him to do something other than the payment of a sum of money-e.g., an order to give sureties. In this case also the procedure is by complaint followed by an order. Then comes the Act of 1879. It is suggested that the costs, power to order which is given by the Act of 1848, s. 18, are a "civil debt But section 6 only applies where there is a liquidated within the meaning of section 6 of the Act of 1879. sum due-such as wages recoverable summarily under the Employers and Workmen Act. The words of the Act are: "A sum of money claimed to be due." recoverable by complaint. The proceeding was by These costs are neither a liquidated sum nor are they information. Therefore they are not a civil debt within the Summary Jurisdiction Act, 1879, s. 6, and the procedure under the Summary Jurisdiction Act, 1848, still applies: Reg. v. Paget, 30 W. R. 336, 8 Q. B. D. 151; Reg. v. Kerswill, 43 W. R. 59, [1895] 1 Q. B 1; East London Waterworks v. Charles, 42 W. R. 702, [1894] 2 Q. B. 730; Kennard v. Simmons, 50 L. T. Rep. 28.

Schultess Young, in support of the rule.-The power to order distress and imprisonment was intended to be confined to criminal matters. This proceeding is not a criminal matter. The order for vaccination is not, in the first place, a penal one. It is only after the order has been disobeyed that a penalty can be imposed. The costs ordered to be paid by the defendant are a civil debt within the Summary Jurisdiction Act, 1879, s. 6. They are a sum of money ascertained to be due when the order was made. [COLLINS, J.-Would not that argument equally apply in the case of a penalty?] It would. If the costs are not a civil debt within section 6, they are, at any rate, governed by section 47, which provides: "The provisions of this Act with respect to a sum adjudged to be paid by an order shall apply, so far as circumstances admit, to a sum in respect of which a court of summary jurisdiction can issue a warrant of distress without an information or complaint under the Summary Jurisdiction Act, 1848, in like manner as if the said sum were a civil debt. v. Lord Mayor of London, Ex parte Boaler, 42 W. R. 159, [1893] 2 Q. B. 146; Allen v. Worthy, 21 L. T. Rep. 665, 18 W. R. C. L. Dig. 99. The procedure is not in the strict sense by information. The words of the Vaccination Act, 1867, s. 31, are 66 give information." to a justice, not "lay an information."

Reg.

COLLINS, J.-(After stating the facts and after reading section 18 of the Summary Jurisdiction Act, 1848.) It is clear that under the provisions of that section the justices had power to make the order for the payment of the costs, and that they could enforce the payment of the costs so ordered by distress and imprisonment. Unless, therefore, the Summary Jurisdiction Act, 1879, took these costs out of the operation of section 18, the order is good. It is suggested that by reason of section 6 of the Summary Jurisdiction Act, 1879, the remedy for the recovery of these costs under section 18 is no longer applicable [reads section 6]. I have a difficulty in understanding how it can be suggested that the costs are a "sum of money claimed to be due "recoverable on complaint.' No doubt the costs did eventually become a sum of money payable to the informant, but it was not a sum of money antecedently due. There is no distinction in principle between the costs and a penalty.

WOOD v. MAYOR OF WIDNES. (a.) Local government - Public health Powers of local authority-Reconstruction of privies -Adoption of particular system of water-closet-Public Health Act, 1875 (38 & 39 Vict. c. 55), 8. 36.

The Public Health Act, 1875, s. 36, provides that a local authority may, by written notice, require the owner or occupier of a house to provide a sufficient water-closet, earth-closet, or privy, as the case may require, and that, if the notice be not complied with, the local authority may do the work and recover the expenses.

A local authority passed a resolution that in all future cases of nuisances requiring the reconstruction of privies, a particular kind of water-closet system should be adopted.

Held, that there was no power to adopt a general rule in all cases, and that the resolution was invalid. The local authority were bound in each case, before issuing the notice, to take into consideration the particular requirements of the house in question.

Case stated by justices of Lancashire.

On the 12th of February, 1895, the respondents, who were the urban sanitary authority of the borough of Widnes, confirmed the following resolution of their health committee: "That in all future cases of nuisances requiring the reconstruction of privies and ashpits the local authority of this borough do as far as practicable order that such privies and ashpits be converted into the waste watercloset system, or into such other water-closet system as the local authority may from time to time approve,

(a.) Reported by F. O. ROBINSON, Esq., Barristerat-Law.

a sufficient water-closet, earth-closet, or privy, and an ashpit furnished with proper doors and coverings. On the 9th of April the respondents confirmed a resolution of the health committee "that the local authority do by written notice require the owner or to prooccupier of each of the said houses vide a sufficient privy and ashpit furnished as aforesaid upon the waste water-closet system approved by the corporation."

A notice in the terms of this resolution was accord

ingly served upon the appellant, and the notice not having been complied with, the respondents did the work and declared the expenses incurred by them in so doing to be private improvement expenses under section 36 of the Public Health Act, 1875, payable by instalments.

The appellant having failed to pay £6 8s., the amount of the first instalment, the respondents laid a complaint before the justices, who made an order against the appellant for payment thereof, subject to this case.

The question for the court was whether the resolution confirmed on the 12th of February, 1895, was valid; or, if not, whether it invalidated the subsequent proceedings.

The Public Health Act, 1875, s. 36, provides that, "If a house within the district of a local authority appears to such authority by the report of their surveyor or inspector of nuisances to be without a water-closet, earth-closet, or privy, and an ashpit furnished with proper doors and coverings, the local authority shall by written notice require the owner or occupier of the house to provide a sufficient water-closet, earth-closet, or privy, and an ash-pit furnished as aforesaid, or either of them, as the case may require."

C. A. Russell, Q.C., and Rycroft, for the appellant. -The local authority have no power to lay down, as they have done by the resolution of the 12th of February, a general rule prescribing that in every case a particular kind of water-closet shall be adopted. Under section 36 they can only insist upon the provision of "a sufficient water-closet," &c., as the case may require." There was in this case no inquiry into the particular requirements of the case. The notice merely follows the resolution of the 12th of February, and the appellant was not bound to comply with it.

66

The decision of the justices was right. The local McCall, Q.C., and Bonsey, for the respondents.authority have power to order what works shall be executed, and can require water-closets to be substituted for privies. It was so held in St. Luke's Vestry v. Lewis, 10 W. R. 249, 1 B. & S. 865, decided under section 81 of the Metropolis Local Management Act, 1855, which section is identical with section 36 of the Public Health Act, 1875. That case was followed in Bogle v. Sherborne Local Board, 46 J. P. 675; Ex parte Whitchurch, 29 W. R. 507, 6 Q. B. D. 545. The proper remedy of the appellant, if he had any grievance, was to appeal to the Local Government Board under section 268. The justices' duty was ministerial only, and they had no power to consider any question as to the character of the work ordered: Hargreaves v. Taylor, 11 W. R. 562, 3 B. & S. 613. [RIDLEY, J.-Tinkler v. Wandsworth District Board

HIGH COURT.

of Works, 6 W. R. 390, 2 De G. & J. 261, is in the appellant's favour.] At the time that case was decided there was no appeal to the Local Government Board. Moreover in that case there was a finding of fact that the local authority had decided to substitute waterclosets for privies in all cases. Whereas here the resolution of the 12th of February only applies to cases of privies which require reconstruction.

Russell, Q.C., in reply.-All that was decided in St. Luke's Vestry v. Lewis was that the local authority could order the conversion of an insufficient privy into a water-closet. That is not disputed, but there is no case which says that a particular kind of water-closet can be ordered.

LAWRANCE, J.-The first question asked by this case is whether the resolution of the health committee confirined by the respondents on the 12th of February, 1895, is valid. If that resolution is answered in the appellant's favour it seems to me that the other questions become immaterial. By the resolution in question the respondents determined that in all future cases of nuisances requiring the reconstruction of privies a system known as the waste water-closet system should be adopted. The question as to the Validity of that resolution turns on section 36 of the Public Health Act, 1875, which provides that if a house is without a sufficient water-closet, earthcloset, or privy the owner or occupier may be required by the local authority to provide a sufficient water-closet, earth-closet, or privy. It is contended for the appellant that by the resolution of the 12th of February the respondents have laid down a general rule requiring the adoption of a particular kind of water-closet in all cases without any regard being had to the particular requirements of each house. In my judgment the local authority are not entitled to do that. It is not disputed that they may in every case within the section require a water-closet to be substituted for a privy, but in my opinion the local

authority have no power to insist upon a particular kind of water-closet being furnished. All that can be required of the owner or occupier of the house by the notice under section 36 is that he shall provide a "sufficient" water-closet.

I therefore come to the conclusion that the resolution of the 12th of February was invalid, and the appeal must be allowed.

RIDLEY, J.-I am of the same opinion. The question is whether the respondents have been enforcing one general rule over the whole of their district or whether they have exercised their discretion in each individual case. If they were enforcing a general rule, then in my opinion it was not competent for them to do so. The local authority are empowered to give notice to each person requiring him to provide a sufficient water-closet, and then it is for the local authority to say whether the watercloset which is provided is sufficient or not; but that is a very different thing from saying that in every case a particular kind of water-closet must be adopted. When the facts of this case are looked at it is impossible not to say that in this case the respondents have adopted a general rule for all cases.

The resolution of the 12th of February says that in all future cases of converting privies into waterclosets the waste water-closet system shall be adopted. Then a report having been made as to the condition of upwards of 300 houses in the borough it is resolved that in every case the owner is to be served with a notice requiring him to provide a waste watercloset. I have come to the conclusion that, however desirable uniformity of system may be, that is not the intention of the Act.

HIGH COURT.

Ex parte NAVALCHAND. (a.) Bankruptcy-Property of bankrupt-Money paid into court by defendant with denial of liability-Bankruptcy of defendant - Secured creditor--R. S. C., 1883, ord. 22, r. 6-Bankruptcy Acts, 1883 (46 & 47 Vict. c. 52), s. 45.

Where the defendant in an action pays money into court with a denial of liability, and becomes bankrupt before the action can be tried, the plaintiff has a claim as a secured creditor upon the money paid into court to the extent to which the trustee in bankruptcy admits the claim in the action.

Motion by Navalchand, an Indian banker, that he may be declared entitled to two sums of money in court: the first being the sum of £48 5s. 11d., paid into court by the debtor Gordon prior to his bankruptcy in an action entitled Navalchand v. Gordon, in the Queen's Bench Division; the second being the action by the applicant as security for costs. suin cf £110 10s., paid in to the credit of the same

February, 1896, to recover £118 19s. 2d., the amount, The action of Navalchand v. Gordon was begun in together with interest, of a dishonoured promissory note.

The defendant paid £48 58. 11d. into court in respect of the claim in the action with a denial of liability. The applicant paid in £110 10s. as security for costs. The defendant presented his own petition on the 14th of December, 1896, and was adjudicated a bankrupt, the official receiver being his trustee.

Eneas Mackintosh, for the applicant. The plaintiff has a claim as a secured creditor upon the money paid into court: Ex parte Banner, In re Keyworth, 27 W. R. 428, 11 Ch. D. 220; Ex parte Bouchard, In L. R. 9 Ch. App. 379, 22 W. R. Dig. 20; Levy v. Lovell, [VAUGHAN WILLIAMS, J.-How can the money be paid out? re Moojen, 28 W. R. 129, 12 Ch. D. 26. No order can be made until after the determination of the action: Maple & Co. v. Earl of Shrewsbury and Talbot, 35 W. R. 819, 19 Q. B. D. 463.]

Edward Clayton, for the official receiver.-This money was money of the bankrupt's at the commencement of the bankruptcy, and therefore passes to his trustee. Moreover, a creditor cannot have any security on money paid into court, it is not a mortgage, charge, or lien on the property of the debtor. Further, it is provided by ord. 22, r. 6, that money in court shall be subject to the order of the court or a judge; that means the court before

(a.) Reported by P. M. FRANCKE, Esq., Barristerat-Law.

HIGH COURT.

which the action will be tried, and the Bankruptcy Court has no jurisdiction to disturb this money. [VAUGHAN WILLIAMS, J.-I think section 102 of the Bankruptcy Act, 1883, gives me ample power to deal with the matter if you refuse to consent to my having jurisdiction.] I am willing to submit to the jurisdiction, but I contend that the plaintiff here can be in no better position than a person who has attached a debt: Butler v. Wearing, 17 Q. B. D. 182, 34 W. R. Dig. 17.

Eneas Mackintosh replied.

Cur. adv. vult.

July 3.-VAUGHAN WILLIAMS, J.-In this case the question is as to the right of the applicant to two sums of money paid into court before the date of the receiving order in an action against the bankrupt. The one is a sum of £48 5s. 11d., paid into court by the defendant with a plea denying liability. The other is a sum of £110 10s., paid into court by the plaintiff at the instance of the defendant as security for the defendant's costs of the action. The trustee has not been made, and declines to be made, a party to the action. He has not actually admitted the plaintiff's claim, but, as I understand, does not contest his right to prove for something. I have no jurisdiction, sitting in bankruptcy, to make an order for payment out of court of either of these sums, but both parties have requested me to decide the question of right, and will consent to the necessary order in the Queen's Bench Division to give effect to my decision.

As regards the sum of £110 10s. paid into court by the plaintiff as security for costs, I do not understand that it is seriously contended that he is not entitled to have that money paid out of court on admission of the proof, subject, of course, to deduction of costs if there be any in respect of which the defendant may, on interlocutory proceedings, have obtained orders for costs in any event.

I see

As to the money paid into court with a denial of liability, I take it that the plaintiff, though out of time to accept in satisfaction the sum paid in with a denial, would apart from bankruptcy, be entitled to get an order to withdraw his reply, and to give notice accepting the money paid in as satisfaction. nothing in the bankruptcy proceedings to prevent his so doing; but if he does, he will not be entitled to prove for any balance of the debt. If, on the other hand, the plaintiff does not elect to take the money out of court in satisfaction, I think that his proper course is to tender a proof in bankruptcy for the full amount of his claim; then if the proof is admitted, or partially admitted-rejected I understand it will not be-the issue in the action will, in my opinion, have been disposed of, and an order may be made in the action in the Queen's Bench Division for the payment of the money out of court to the proper party, according to the result of the application to prove, under ord. 22, r. 6. It is quite true that in Maple v. Earl of Shrewsbury the Court of Appeal decided that no order could be made for payment of money out of court until the action had been tried or disposed of—that is, so long as the question of liability remains in any way undisposed of, but I think that in the case of an action for a mere money demand it has been disposed of and the liability determined, so socn as the proof has been dealt with in bankruptcy. The Court of Bankruptcy is the proper court to determine the liability in such a case, and I am clearly of opinion that if the proof is admitted, or to the extent to which it is admitted, the plaintiff is a secured creditor by reason of the payment into court. The money paid into court, even with a plea denying liability, has become subject to

HIGH COURT.

the plaintiff's claim by the act of the defendant, who thereby agrees that the sum paid shall remain in court subject to the condition of ord. 22, r. 6. It is not a question of execution at all, but of the effect of a conventional charge. It is in effect a conditional payment to the plaintiff; the money is to be the money of the plaintiff if he succeeds in establishing his title to it: Ex parte Bouchard, In re Moojen.

If the plaintiff's proof is admitted in full he can amend his proof immediately on the admission by deducting the amount of security which thereupon accrues to him by reason of his right to take the money out of court; or, if the proof is admitted for a less amount than the money in court, he can withdraw the proof and consent to an order that the balance shall be paid to the trustee.

Solicitor for the applicant, E. W. Hurd.

Solicitors for the respondent, Rising & Ravenscroft.

In 1889 the testatrix made a will. In 1892 she obtained from the same solicitors a draft codicil, which she took away, as they believed, to execute it; but, instead of executing it, she, with the assistance of another person, executed a new will revoking the first. In 1893 she asked her solicitors to prepare another codicil, and they, thinking she had executed the first codicil, and in ignorance of the execution of the will of 1892, in drafting it described it as a second codicil to the will of 1889, and concluded it by confirming the said will and codicil. This codicil the testatrix duly executed.

The court, on motion to allow proof only of the will of 1892 and codicil of 1893, ordered proof of all three documents.

Motion on behalf of the executors for a grant of probate of a will dated the 14th of May, 1892, and a codicil dated the 7th of September, 1893, of Eliza Chilcott, who died on the 16th of January, 1897, and omitting a will of the 16th of July, 1889.

The testatrix made a will dated the 16th of July, 1889, which disposed of her property and appointed T. B. Mitchell and F. Spears executors.

Afterwards on the 14th of May, 1892, she made another will, by which she revoked her first will and then disposed of her property, and appointed the same executors as in the first will.

This second will was made under the following circumstances. She desired to make a codicil to her first will, and her solicitors, on her instructions, prepared a codicil, which they gave to her and she took away; but without her solicitors' knowledge, and with the assistance of another person she prepared and executed another will on the 14th of May, 1892; and the codicil was never executed.

On the 2nd of September, 1893, she executed a codicil. When she wished to execute it she went to her solicitors, who were ignorant of the execution of the will of the 14th of May, 1892, and thought she had executed the first codicil.

Under these circumstances they prepared a codicil which (inter alia) was in these terms: "This is a second codicil to the will of Eliza Chilcott, which

(a.) Reported by J. GERARD LAING, Esq. Barrister-at-Law.

HIGH COURT.

In all

bears date the 16th of July, 1889. other respects I confirm my said will and the first codicil thereto."

Barnard, in support of the motion.-The will of 1889 was revoked, and is not revived by the codicil of 1893; by section 22 of the Wills Act it can only be set up again by "re-execution" or by "express words, &c., showing an intention to revive." There must be words in the codicil dealing with words in the will showing a clear intention to revive it: In the Goods of Steele (three cases), 17 W. R. 15, L. R. 1 P. & D. 575. In the cases In the Goods of Stedham, 29 W. R. 743, 6 P. D. 205, and In the Goods of Dyke, 6 P. D. 207, there were references to words in the previous will. In In the Goods of Ince, 25 W. R. 396, 2 P. D. 111, HANNEN, P., disregarded a reference by date, where shown to be wrong. The question is whether by the language of section 22 something more is not required than a simple reference to the will, which in this case is a mistake. I submit the mere reference to the will here is not enough. Consents of all the parties interested have been filed.

Cur, adv. vult.

May 6.-BARNES, J.-In this case the question to be decided is what documents shall be admitted to probate. [The learned judge here set out the facts as above.] Application is made to me that the will of 1892 and codicil of 1893 should be admitted to probate without the will of 1889. The point taken by counsel is that the testatrix, in signing the codicil of 1893, made a mistake, owing to the ignorance of the solicitors that she had executed the will of 1892, and that she intended to confirm that will. But a difficulty is presented by the language of the codicil, which in express terms refers to the first will, and in express terms confirms that will, and in express terms confirms the first codicil thereto, and I have no doubt that the solicitor intended to carry that out when he prepared this codicil. Therefore this case comes within the authority of the cases dealt with by Sir James Hannen, in In the Goods of Stedham and In the Goods of Dyke, and not within the case of In the Goods of Steele, cited by Mr. Barnard. In In the Goods of Stedham, Sir James Hannen in his judgment says: "The solicitor who was instructed to prepare this codicil, instead of making a codicil to the will of 1878, made a codicil to the will of the 21st of May, 1877, and I was asked to treat it as a mere mistake as to the date, and to allow probate of the codicil, together with the last will of 1878. I am unable to do so for this reason, that it was not a mere mistake as to the date of the will to which it was intended to append the codicil, but the mind of the solicitor, which must be treated as that of the testator, was actually applied to the provisions of the will of 1877," and so on. In this case there is no doubt that the solicitor, who only knew of the first will and believed that the testatrix had executed the first codicil, applied his mind to the first will and first codicil, and then drew the codicil of the 7th of September, 1893, which was duly executed, and which in express terms relates to the first will and first codicil; and I must deal with the documents as they stand. There is no doubt that they do not express the real intention of the testatrix, but I find nothing in the codicil indicating that intention. This seems to me a case where the same course must be adopted, as in the case before Sir James Hannen. All three documents must be admitted to probate, leaving it to a court of construction afterwards to construe them if necessary.

documents ordered.

Landlord and tenant — Ejectment — Forfeiture-Continuing breach of covenant-Claim for rent-Waiver of forfeiture -Notice-Conveyancing Act, 1881 (44 & 45 Vict. c. 41), 8. 14.

The defendant was tenant to the plaintiff under a lease containing a general covenant to repair and also a covenant to repair upon notice. The premises having become out of repair, the plaintiff, on the 22nd of September, 1896, gave notice to the defendant under section 14 of the Conveyancing Act, 1881, requiring him within three months to execute the repairs therein specified. The notice not being complied with, the plaintiff, on the 14th of January, 1897, commenced an action, in which he claimed possession of the premises and rent to the 25th of December, 1896. The defendant pleaded that the plaintiff, by claiming rent in the action, had waived the forfeiture, and was not entitled to recover possession.

Held, that the plaintiff was entitled to recover possession, for (1) the breach being a continuing breach, he could rely on the breaches between the 25th of December and the 14th of January; and (2) the premises being in the same state of disrepair at the commencement of the action as at the giving of the notice, the notice was sufficient.

Appeal from the judgment of Ridley, J., at the trial of the action without a jury.

This was an action of ejectment brought by a landlord against a tenant. The premises were leased in 1873 by the plaintiff's predecessor in title to the defendant's predecessor in title for a term of years. By the lease the lessee covenanted that he would keep and preserve the premises in good and substantial repair and condition, and that during the term he would well and substantially repair and maintain the premises with all manner of needful and necessary reparations when and where and as often as need or occasion should require. He also covenanted that he would well and sufficiently repair the premises within three months after notice from the lessor so to do. The lease provided that if the lessee did not observe and keep all the covenants and conditions to be on his part performed and fulfilled, it should be lawful for the lessor to re-enter upon the premises. The defendant failed to repair and maintain the premises in accordance with the above covenants, and on the 22nd of September, 1896, the plaintiff gave the defendant notice, under section 14 of the Conveyancing Act, 1881, requiring him within three months to execute the repairs specified in the schedule thereto, and to make compensation by payment to the plaintiff of the sum of £20.

The defendant failed to comply with the requirements of the said notice.

The plaintiff commenced this action on the 14th of January, 1897, and by his statement of claim he claimed (1) possession of the premises; (2) a quarter's rent for the quarter ending the 25th of December, 1896; (3) mesne profits from the 25th of December until judgment.

The defence was, that the plaintiff, by bringing this action to recover rent which accrued due after the

Solicitors, Meredith, Roberts, & Mills.