tinues in default. It is not necessary in this case to consider what would be the effect of an offer by the plaintiffs to accept the draft before the sale, for no such offer in this case and pay Solicitors for plaintiffs: Dalton & Jesset. Judgment reversed. 1875 OGG V. SHUTER. Solicitors for defendant: Heather & Co. [IN THE COURT OF APPEAL.] WHITAKER v. FORBES. Rent Charge-Action of Debt for Arrears-Venue. An action of debt having been brought for arrears of a rent-charge upon lands in Australia prior to the commencement of the Judicature Act: Held, affirming the decision of the Court below, that the venue in such action was local, and that it could not therefore be maintained in this country. ERROR from the judgment of the Court of Common Pleas in favour of the defendant. The pleadings are set out in the report of the case in the Court below. (1) West, Q.C., and Willis argued for the plaintiff. F. M. White and A. P. Stone for the defendant, were not called upon. [The following authorities were cited:- Pine v. Countess of Leicester (2); Mostyn v. Fabrigas (3); Doulson v. Matthews (4); Webb v. Jiggs (5); Burnett v. Lynch (6); Norris v. Chambres (7); Toller v. Carteret (8); Lord Ardglasse v. Muschamp (9); Paget v. Ede (10); Moule v. Garrett (11); Barker v. Damer (12); Skinner v. East India Co. (13); Kennedy v. E. of Cassilis. (14)] Nov. 27. 1875 v. FORBES. LORD CAIRNS, C. The recent legislation provides that for WHITAKER the future there shall be no distinction between local and personal actions as regards venue. It may be that hereafter such an action as this would be maintainable, but it is not necessary to express an opinion on the point. The question now is, whether, before the Judicature Act, an action such as this could be maintained. So far as appears on these pleadings it may be that both the parties are in this country, and have never been out of it, and it is not denied that the defendant entered into possession (which may have been through an agent) of the estate, and has received rents and profits from it more than sufficient to cover the amount of the rent-charge. Under these circumstances, if we had to consider the case apart from the authority of the decisions, it might be that we should be glad to hold, and should think it very reasonable, that the action was maintainable; but we must look to what the law of the matter is as settled by authority. There is clearly no liability here by way of contract. The defendant's liability arises, if at all, only by reason of his having taken possession of the land which is chargeable with the rent-charge. That liability, therefore, arises by reason of what is called privity of estate, i.e. in respect of the party's possession of the estate. Before real actions were abolished the only remedy during the continuance of a freehold rent-charge was by real action; but when the rent-charge had ceased to exist, debt lay for any arrears of it remaining unsatisfied. Such an action of debt was a local action to be tried by a jury of the county where the land was situate. The law in this respect is clearly laid down in the cases of Pine v. Countess of Leicester (1) and Thursby v. Plant. (2) Since the statute abolishing real actions, the Courts have held that an action of debt will lie for the arrears during the continuance of the rentcharge. The question is whether, with regard to such actions, the same law applies as was laid down in the cases I have referred to with regard to actions of debt after the determination of the rentcharge. I do not think we can depart from a rule of law which has been so long regarded as settled by the authorities to which I have referred and which has never since been departed from. It was suggested by Mr. Willis that, though that might be the law (1) Hob. 37. (2) 1 Notes to Wms. Saund. 306–308. 1875 v. FORBES. with regard to cases where the land was situated in England, when the land was out of England the same rule would not apply, and WHITAKER the venue would cease to be local. I cannot find any ground for such a proposition either in principle or on authority. The principle of the decisions seems to be, that when the venue is local the case must be tried by a jury from the place where the venue is laid, and if no such jury can be summoned the principle would seem equally to shew that the case cannot be tried in England at all. Sitting in a court of error, I think we are bound by the authorities, although possibly it might be convenient that the action should lie under such circumstances as exist in the present case. The judgment of the Court below must be affirmed. KELLY, C.B. The distinction between local and transitory actions has been recognised for centuries, and it has been clearly decided that such an action as this is local. I agree with the Lord Chancellor that it is to be regretted we have not the power to deal with this case in accordance with what would appear under the circumstances to be the justice and convenience of the matter; but we cannot assume to ourselves powers which we do not possess. We must act upon the law as laid down in a long and uniform series of decisions. BRAMWELL, B. I am of the same opinion. I will add nothing, except to refer to the American case of Livingstone v. Jefferson (1), where the law on this subject seems to have been ably summarised by Marshall, C.J. BLACKBURN, J. I am of the same opinion. I do not think this case raises any question as to jurisdiction, though in some respects it has been argued as if it did. The case turns on the technical distinction between local actions, where the trial must be local, and transitory actions, and the question is one of venue only. It seems to me that the decision of the Court below on this question was correct. 1875 Dec. 11. [IN THE COURT OF APPEAL.] CORY AND OTHERS v. BRISTOW. Poor Rate-Rateability of Moorings in the River Thames-Thames Conservancy The conservators of the river Thames, who are by statute owners of the river bed, gave permission, by resolution, to the plaintiffs to lay down certain moorings in the river bed, and place a derrick hulk at them, the work to be done to the satisfaction of the conservators and under the inspection of the harbour master, and to remain on certain conditions being agreed to and observed by the plaintiffs. These conditions provided that a certain rent should be paid for the moorings, and specified the purposes for, and the manner in which, the hulk was to be used, and that in all other respects it was to be worked to the satisfaction of the conservators, under the inspection of the harbour master; and the permission was expressed to be granted on the full understanding, on the part of the plaintiffs, that if at any time thereafter it should be found inexpedient to permit the moorings for the derrick hulk to remain in that or any other part of the river, the conservators would, under the powers vested in them by the 91st section of the Thames Conservancy Act, cause the same to be removed. That section provides that no mooring chains shall be put down in the river without the permission of the conservators, and that the conservators may at any time, by giving a week's notice in writing, require such[mooring chains to be removed; and if not removed accordingly, may themselves remove them. In pursuance of the permission so given, the plaintiffs procured moorings to be laid down, paying for the necessary labour and materials, and placed a derrick hulk at such moorings, which had continued there for some years, and was used by the plaintiffs for the purposes of unloading and re-loading coal in the course of their business as coal merchants. The moorings so laid down consisted of anchors and stones, which were laid down in deep holes, dug in the bed of the river, and covered in with large quantities of ballast. The moorings so formed were of a permanent character, and it would have been impossible for the derrick using them to weigh them in the ordinary way in which ships weigh anchor : Held, reversing the decision of the Court below, that the plaintiffs were the occupiers of the moorings, and were liable to be rated in respect of such occupation. ERROR, from the judgment of the Court of Common Pleas upon a special case in favour of the plaintiffs. The facts are set out in the report of the case in the Court below. (1) Barrow, for the defendant. Patchett, for the plaintiffs. (1) Law Rep. 10 C. P. 504. 1875 CORY v. The arguments were substantially the same as those in the Court below, and the following cases were cited:--Rex v. Bath (1); Rex v. Brighton Gas Co. (2); Electric Telegraph Co. v. Salford (3); BRISTOW. Watkins v. Overseers of Milton-next-Gravesend (4); Pimlico Tramways Co. v. Greenwich Union (5); Dyson v. Collick (6); London and North Western Ry. Co. v. Buckmaster (7); Allan v. Overseers of Liverpool (8); Reg. v. Morrison (9); Cory v. Overseers of Greenwich. (10) JAMES, L.J. I cannot agree in the conclusion at which the Court of Common Pleas have arrived. There is no dispute as to the general principle of law, viz. that where any part of the soil is permanently occupied by anybody for profitable purposes, as, for instance, where it is occupied by a company by means of its water or gas pipes or telegraph posts, then the person so occupying is rateable in respect of such occupation; but when a person has a mere right to use the land in the nature of an easement, which does not amount to occupation, and the occupation remains in somebody else, as for example, in the case of a lodger where the occupation remains in the lodging-house keeper, then such person is not liable to be rated. The rateable quality of the portion of land so used is not gone, but it is rateable in the hands of the person who is the occupier. The question, then, in the present case, is really one of fact rather than of law, viz. what is the nature of the right given to the plaintiffs by the resolution of the conservators? Under the Thames Conservancy Acts the conservators have vested in them the bed and soil of the river with considerable powers, partly for the purpose of raising a fund for the maintenance and improvement of the navigation and partly for the benefit of the Crown. They have power to prevent anything that would be a nuisance and generally to preserve the navigation of the river. In their capacity of owners of the soil by virtue of the statute, they have power to grant a variety of rights so far 3 |