Crom v. Samuel, C.P. Judicature Act, 1875.) The time of the Long Vacation is not to be reckoned in the computation of time (Ord. LVII. r. 5).

[DENMAN, J.-That only applies to pleadings.]

In Hallums v. Hills (2) the Court of Appeal held that in computing the time within which a motion for a new trial must be made, the days on which the Divisional Court is not actually sitting are not to be reckoned. That decision was under the repealed rule 1 of Ord. XXXIX., but the words of the order are substantially the same as the present or der. If this were not so, great hardship would accrue, for the eight days would elapse without opportunity of appealing.

[DENMAN, J.-Under Ord. LVII. r.6 (3) the Court may enlarge the time, although application is not made until after the time appointed or allowed.] (4)

GROVE, J.-We think that the objection raised by the plaintiff must prevail, and that the defendant is too late, unless he asks the Court under Ord. LVII. r. 6, to interfere and enlarge the time for appealing from the decision at chambers, which by Ord. LIV. r. 6, must be made within eight days after the decision appealed against. Appeals from decisions at chambers require speedy hearing, and these eight days given by the Judicature Act, within which the appeal must be made, are given without any qualification, not as in the repealed rule 1 of Ord. XXXIX. under which Hallums v. Hills (2) was decided, where the words were, "to be made within four days after the trial, if the Divisional Court is then sitting." The rule for the appeal from chambers is unqualified, and we should be legislating if, although

(2) W.R. vol. xxiv. p. 956.

(3) "A Court or a Judge shall have power to enlarge or abridge the time appointed by these rules, or fixed by any order enlarging time for doing any act or taking any proceeding, upon such terms (if any) as the justice of the case may require; and any such enlargement may be ordered, although the application for the same is not made until after the expiration of the time appointed or allowed."

(4) The Court offered to enlarge the time for appealing under Ord. LVII. r. 6, on certain terms, which however the defendant's counsel refused to accept.

on grounds which may appear reasonable, we did not follow the words of the Order.

There may be reasons which account for the words, limiting the time for appeal from chambers, being more peremptory than those which limit the time for applying for new trials; for instance, if the eight days within which the appeal from chambers must be made are not to run during the vacation, an order such as the present would have the effect of suspending judgment for the long vacation. Then it is said that the effect of our judgment would be to deprive the party wishing to appeal of any remedy, and to make the decision at chambers final; but there is a remedy given by Ord. LVII. r. 6, under which, supposing there were no Divisional Court sitting, or no means of applying during the Vacation, the time may be enlarged as the justice of the case may require. This construction of Ord. LIV. r. 6, does not appear to be an irrational construction, and, moreover, there is no ambiguity in the words of the Order.

On this view, then, there is ample remedy given to the client for any apparent hardship he may suffer by reason of the peremptory terms imposed by Ord. LIV. r. 6 of the Judicature Act. He can come to this Court, and have the eight days enlarged upon such terms as the justice of the case may require under rule 6 of Ord. LVII., a rule which is sufficient to meet all grievances.

DENMAN, J.-Ord. LIV. r. 6, appears to me peremptory and unambiguous in its terms, and I cannot see that it is competent to us to place any elastic construction on the eight days there given. Hallums v. Hills (2) is no authority against our decision, because that case was decided on totally different words and a totally different state of things.

It has been argued that the legislating body who prepared these rules of the Judicature Act could not have contemplated the hardship which would flow from the construction we place upon them, but I am not sure that hardship would flow. Formerly decisions at chambers were practically without appeal, and it would seem necessary that a mode of appeal, when given, should be peremptory

Crom v. Samuel, C.P.

in its character, as otherwise either party could postpone the decision of the case for an indefinite period.

Although the hardship complained of might be a weighty argument where the words of an Order are capable of more constructions than one, yet, looking at the plain and unambiguous words of Ord. LIV. r. 6, and the large provision of Ord. LVII. r. 6, by which the Court can do justice at any time, a provision which meets every argument which has been brought before us, we should not, in my opinion, be justified in giving way to such argument, and departing from words which are plain and unambiguous in their meaning.

Service of Writ out of Jurisdiction-Judicature Act, 1873, Ord. XI. r. 1— Slander of Title.

To entitle a plaintiff to service of a writ out of the jurisdiction for "any act, deed, will or thing affecting such land, stock or property" under Order XI. r. 1 of the Judicature Act, 1875, it is not sufficient that "such land, stock, or property" should be affected incidentally; and therefore service of a writ out of the jurisdiction will not be granted to the plaintiff in an action for slander of title of a ship.

The plaintiff intending to commence an action against the defendant for slander by the defendant of the title of the plaintiff's ship, which the plaintiff was about to sell in England, whereby, &c., now sought to serve a writ on the defendant in Ireland, under the above Order of the Judicature Act.

The application had been made to Lindley, J., at chambers, and referred by the learned Judge to the Court.

GROVE, J.-In the best judgment I can form this case is not within Ord. XI. r. 1. The words on which the plaintiff relies are, any act, deed, will or thing affecting such land, stock or property." But I think, on the true construction of those words, such property must be physically affected, and it is not sufficient that it should be affected incidentally. The slander here complained of does not affect the ship; it merely affects the minds of people buying in the same way as an auctioneer's puff might affect the minds of buyers, and we should be extending the section and the fair meaning of the words " act, deed, will," &c., were we to hold the present case to be within Ord. XI. r. 1.

DENMAN, J.-I also agree that Ord. XI. r. 1 does not apply to such a case as the present. Mr. French contends that the case is within the first part of the section, and if one were to stop at "such land, stock or property," perhaps it would be possible to pick out words so as to support his contention; but other words are used, and when one goes on to read, "and whenever the contract which

a Judge whenever the whole or any part of the subject-matter of the action is land or stock, or other property, situate within the jurisdiction, or any act, deed, will, or thing affecting such land, stock, or property, and whenever the contract which is sought to be enforced or rescinded, dissolved, cancelled or otherwise affected in any such action, or for the breach whereof damages or other relief are or is demanded in such action, was made or entered into within the jurisdiction, and whenever there has been a breach within the jurisdiction of any contract wherever made, and whenever any act or thing sought to be restrained or removed, or for which damages are sought to be recovered, was or is to be done, or is situate within the jurisdiction."

Lands Clauses Consolidation Act, 1845, 8 & 9 Vict. c. 18, ss. 68, 121-Compensation for Lands taken-Interest of Tenant in the last Year of a Term-" No greater Interest than as a Tenant for a Year."

Section 121 of the Lands Clauses Consodation Act enacts, "If any such lands" (i.e. lands authorised to be taken) "shall be in the possession of any person having no greater interest therein than as a tenant for a year, or from year to year, and if such person be be required to give up possession of any lands so occupied by him before the expiration of his term or interest therein, he shall be entitled to compensation for the value of his unexpired term or interest, and the amount of such compensation shall be determined by two justices in case the parties differ about the same:"-Held, that the section applied to the case of a person who had less than one year of a term unexpired at the date of his being required to give up possession; and that such person was not entitled to proceed under section 68, and claim to have the compensation settled by arbitration.

This was a SPECIAL CASE stated for the opinion of the Court, subject to which a verdict had been entered for the Crown, in a cause raising certain issues in fact, on a claim by the prosecutors for a writ of mandamus to the defendants.

The important paragraphs in the case in reference to the judgments delivered are as follows:

7. Memorandum of agreement made the 14th of August, 1871, between Joseph Thomas Armston of the one part, and James Baxter and Henry John (the prosecutors) of the other part.

"The said Joseph Thomas Armston agrees to let, and the said James Baxter and Henry John agree to take, the land at the back of Stein House, about, &c., for the term of one year from the 10th of August inst., at and under the yearly rent of 201. the first six months, payable in advance, and afterwards payable on the usual quarter days, and the said James Baxter and Henry John agree to pay the said rent at the times and in manner aforesaid. And it is further agreed that if the said James Baxter and Henry John shall be desirous of continuing the tenancy for a further two years, J. T. Armston will guarantee to let them have premises, if any of the above-named land should be required to be taken away, and J. T. Armston to have right of footway to garden at any time during your tenancy, use of office in front yard to be given to J. B. and H. J. until another is built."

9. The prosecutors entered under the agreement forthwith.

10. In December, 1871, the defendant company (intending to apply to Parliament in its next session for powers to take some part of the said land) served on the prosecutors the notice usual to be given in such cases to landowners, lessees and occupiers of land, in respect of which Parliamentary powers are sought, of their intended application.

11. The defendants by 35 & 36 Vict. c. 28, s. 10, obtained powers to take, amongst other, the land occupied by the prosecutors.

14. The prosecutors continued to occupy the office and land, and shortly after the 10th of August, 1872, they told Armston that they desired to continue the tenancy for the further two years mentioned in the agreement. They accordingly continued to occupy till the 28th of August, 1873, and paid Armston the agreed rent.

15. In December, 1872, the prosecutors gave defendants notice that they held and occupied the land in question under

The Queen v. Great Northern Rail. Co, Q.B. an agreement which had about two years to run, but received no reply.

16. On the 24th of December, 1872, Armston gave prosecutors notice to quit on the 10th of August, 1873. This notice they at once repudiated.

17. On the 21st of March, 1873, defendants, in pursuance of the provisions of their Act, above-mentioned, handed to Armston, at the office of the prosecutors, for the prosecutors (who were not then on the premises), notices, addressed to them respectively, in the usual form, stating that the company required to purchase part of the land for the purpose of the said Act, and requiring them to state, in writing, the particulars of their estate and interest therein, and giving notice that the company were willing to treat with them for the purchase and for compensation.

18. Armston did not hand the notices to either of the prosecutors, nor communicate to either of them that the same had been handed to him.

21. Nothing was known of the intention of the defendant company to apply for Parliamentary powers to take any of the land at the date of the agreement in August, 1871, and their requiring to take any part was not the event contemplated in the agreement.

22. On the 13th of August, 1873, a contractor in the employ of the defendant company came on the land and threw down the wall which divided it from the company's railway, and commenced to cart away the bricks, and to bring clay and materials for the foundation of the new line of railway. This was done with Armston's consent, but not with the consent of the prosecutors.

24. On the 21st of August, 1873, the solicitor for the prosecutors sent notice to the defendant company, under section 68 of the Lands Clauses Consolidation Act, 1845, requiring them to pay compensation, and demanding arbitration unless they were willing to pay.

25. The prosecutors left the land on the 28th of August, 1873.

26. On the 11th of September, 1873, the defendants appointed an arbitrator under protest.

27. The prosecutors, on the 15th of

Philbrick and Reginald Brown, for the prosecutors.-The two questions are; first, whether the prosecutors had an interest in land; and secondly, if they had, whether they were entitled to proceed under section 68 of the Lands Clauses Act. It is admitted that if they had no interest, then the defendants were not bound to take up the award. At the time that the notice to treat, under section 68, was given, there was a year, less three days, to run of their tenancy, but the entry on the premises by the defendants must be taken to refer back to the notice to treat, which they gave a year and a half previously, and on looking to the agreement in paragraph 7, it appears that the interest of the prosecutors was, in the event which happened, part of a three years' tenancy. Then, in March, 1873, the defendants left a notice, under section 18, on the prosecutors' premises, which expressed their willingness to treat for compensation to them of the interest, of which information had been given, as set out in paragraph 15.

[LUSH, J.-The notice was not served. You could not say that the prosecutor would have been bound by that notice

The Queen v. Great Northern Rail. Co., Q.B. The Act is precise. There was no diligent search, as required by section 19.]

Then the company upon entry came within section 89, and were liable to penalties, but the prosecutors did not. proceed for penalties, but, as they were entitled, gave notice under section 68 (1). No case has been decided where section 121 has been held to apply to an interest originally greater than that of a tenant from year to year.

[LUSH, J.-I should have thought that it must have often occurred that there was less than a year to run of a tenancy.]

The meaning of the words is to exclude everything except yearly tenancies, and it is reasonable, because the position of an old tenant in the last year of his lease is different from that of a mere yearly tenant or tenant at will.

[LUSH, J.-Can any form of compensation be suggested which could not be obtained under section 121 ? It seems monstrous that the section, of which the intention is to limit the expense, should apply where there might be twenty-three months of the tenancy to run, and not where, as the residue of a term, the tenant had but a few months unexpired.]

(1) Section 68 of 8 & 9 Vict. c. 18, Lands Clauses Consolidation Act, 1845.-"If any party shall be entitled to any compensation in respect of any lands, or of any interest therein, which shall have been taken for or injuriously affected by the execution of the works, and for which the promoters of the undertaking shall not have made satisfaction, under the provisions of this or the special Act, or any Act incorporated therewith, and if the compensation claimed in such case shall exceed the sum of 50%., such party may have the same settled either by arbitration, or by the verdict of a jury, as he shall think fit."

Section 121.-"If any such lands shall be in the possession of any person having no greater interest therein than as a tenant for a year, or from year to year, and if such person be required to give up possession of any lands so occupied by him before the expiration of his term or interest therein, he shall be entitled to compensation for the value of his unexpired term or interest in such lands, and for any just allowance which ought to be made to him by any incoming tenant, and for any loss or injury he may sustain, &c., and the amount of such compensation shall be determined by two justices, in case the parties differ about the same."

The chance of renewal is much greater for an old tenant than for a yearly one, and the distinction between a leaseholder and a yearly tenant is shewn by the fact that the latter can have no compensation at all until possession is actually required-The Queen v. Stone (2). W. G. Harrison, contra, was not called upon to argue.

MELLOR, J.-We are both agreed that this was a case in which the method of proceeding ought really to have been under section 121. On the part of the prosecutors much ingenuity has been displayed, and various considerations have been urged, in order to induce us to come to the conclusion that this case is one beyond the purview of that section of the statute, but they have failed in convincing us that it is so. The very object of this provision in the statute was, as it appears to me, to prevent comparatively insignificant claims for compensation from going before any other tribunal than that of the magistrates. I do not see why this should not have gone before them, as it is just such a case as the Act intended to provide for. I am, for my part, disposed to think that the tribunal is a very proper one for the purpose, independently of the words of the statute, but then the words are clear, as I read them, and, if so, the prosecutors had no right to require an arbitration, and the defendants were not bound to take up the award.

LUSH, J.-I am entirely of the same opinion, although I must say I thought that the point had been determined long ago. I certainly do not entertain the least doubt as to the meaning of the section. Applying the ordinary rules of construction to the words of section 121, I am clear that they meant to apply to tenancies where the time to run was less than a year in duration, or where the occupier was merely a tenant from year to year. I cannot otherwise conceive why the words " as tenant for a year or from year to year," should have been used. The section gives the magistrates full power

(2) 35 Law J. Rep. M.C. 208; s. c. Law Rep. 1 Q.B. 529.