impediment, the result would be a decision of the House affirming that an action of detinue will lie as against a person who has given notice to trustees not to part with some property which is in their possession. It seems to me that that would be a most alarming doctrine, and one for which there is no foundation that I am aware of in any authority.

It would be enough to stop there, and to say that that is a complete impediment to the action. But I may go further and say, that the whole of those arguments of the counsel for the appellant to which I said I was rather disposed to assent, turn upon this, that there is a constat of a valid deed under the Act of 1861. That depends upon the statements in this case; statements which we are to deal with as we find them, without any power in your Lordships to enlarge upon those statements, or to draw inferences from those statements. Now I have looked with great anxiety through those statements, and I cannot find any statement whatever that the deed is a valid deed. I find a number of statements from which it may be argued that an inference ought to be drawn that the deed is a valid deed. But, again, there are other statements from which it may be argued, that an inference ought to be drawn that the deed is not a valid deed. And I am bound to say that my own mind is in a state of perfect obscurity at this moment as to whether the deed is a valid deed or not. Now the validity of the deed being the foundation of the whole of the main arguments to which your Lordships have listened, and there being no statement affirming the validity of the deed, I think there again is another impediment which it is impossible for the appellant to get over. I certainly do very much regret that a great deal of time has been lost and a great deal of expense incurred, as it seems to me most unnecessarily, in this litigation, when there was a course perfectly open to the appellant of going to the Court of Bankruptcy, which is the proper Court to deal with a deed under the Act of 1861, and applying for these promissory notes as against the trustees. The great advantage of that course, if it had been taken, would have been this, that the Court of Bank

ruptcy would have been able to do complete justice between all the parties, and it seems to me to be very obvious that it would be just that some terms or conditions should be imposed upon the person applying now for these notes, having regard to the litigation which has been undertaken, and which has cost some person or persons a great deal of expense.

I quite concur with the order, which it is now proposed that your Lordships should pronounce, namely, that this appeal should be dismissed, and that the judgment of the Court below should be affirmed with costs, but that this should be without prejudice to any application which the appellant may be advised to make to the Court of Bankruptcy touching the matters in question in this

Alehouse-License to Sell Liquor to be Consumed on Premises-Change of Occu pancy-Special Sessions Discretion of Justices-9 Geo. 4. c. 61. s. 14.

The tenant of a house who had obtained a license for the sale of exciseable liquor under 9 Geo. 4. c. 61, was fined for an offence against the tenor of his license, and ejected by his landlord. Before the expiration of the year of the license another tenant was let into possession, and applied to justices under 5 & 6 Vict. c. 44, to endorse the license to him, which they refused to do. He then gave up the house to the landlord,

and at the next annual licensing meeting it was unoccupied, and no application was made for a license in respect of it. In the following November a special licensing meeting was held under 9 Geo. 4. c. 61. s. 4, and the appellant, who had become tenant since the licensing meeting, applied for a new license under 8. 14, but the justices after considering the application on the merits rejected it. On appeal, the Quarter Sessions found that the appellant was a proper person to make the application, but held that the grant or refusal of a license under s. 14 was a matter for the discretion of the justices, and on this ground declined to interfere :— Held, that it was within the discretion of the justices to grant or refuse the license.

Quære, by LUSH, J., whether in the particular case the Special Sessions had any jurisdiction to grant a license.

[For the report of the above case, see 41 Law J. Rep. (N.S.) M.C. 175.]

1872.

}

Ex parte MICHAEL.

June 3. J Admiralty Court-Objection to Jurisdiction when too late-Suit for Necessaries -Shipowner not Domiciled in England Prohibition-24 & 25 Vict. c. 10. s. 5-31 & 32 Vict. c. 71. 8. 3.

By the Admiralty Act, 1861 (24 & 25 Viet. c. 10), s. 5, the High Court of Admiralty shall have jurisdiction over any claim for necessaries supplied to any ship elsewhere than in the port to which the ship belongs, unless it is shewn to the satisfaction of the Court that at the time of the institution of the cause, any owner or part owner of the ship is domiciled in England or Wales. By 31 & 32 Vict. c. 71. s. 3, sub-section 2, any County Court having admiralty jurisdiction shall have jurisdiction over necessaries up to 1507. A suit for necessaries was instituted in a County Court under the last section, and the plaintiff obtained judgment. After judgment an application was made for a new trial on the ground that at the time of the institution of the cause the shipowner was domiciled in Eng

land. The County Court judge refused to interfere :—Held, that a prohibition could not be granted, as, upon the construction of the Admiralty Act, 1861, s. 5, the objection to the jurisdiction of the County Court ought to have been made before judgment, and could not be taken afterwards.

This was a rule for a prohibition to the County Court of Gloucestershire, holden at Bristol.

It appeared, from the affidavits, that in January, 1872, a suit for necessaries was instituted in the County Court against the bark Lothair, for an amount under 251., and the bark was at once arrested under process from the Court. The Lothair, at the time of her arrest, was within the port of Bristol, but this was not the port to which she belonged. In March judgment was given for the plaintiff for the amount claimed. The owner of the barque, a British subject domiciled in England, was abroad at the time of the judgment, but shortly afterwards returned to England, and on May 15th applied to the County Court judge to stay the proceedings. The application having been refused, the present motion was made.

By the Admiralty Court Act, 1861 (24) & 25 Vict. c. 10), s. 5, the High Court of Admiralty shall have jurisdiction over ship elsewhere than in the port to which claim for necessaries supplied to any any the ship belongs, unless it is shewn to the satisfaction of the Court that at the time of the institution of the cause any owner or part owner of the ship is domiciled in England or Wales.

By the County Courts Admiralty Jurisdiction Act, 1868 (31 & 32 Vict. c. 71), s. 3, "Any Court having admiralty jurisdiction shall have jurisdiction over the following causes-As to any claim for towage, necessaries, or wages-any cause in which the amount claimed does not exceed 1507.”

R. E. Webster, in support of the motion. -The fact that the County Court has pronounced judgment in the cause is no objection to a writ of prohibition, if there are still proceedings to be taken by the inferior Court.

[BLACKBURN, J.-Ought not the objection that the shipowner was not domiciled

in England to have been made while the County Court had seisin of the cause, and before it gave judgment?]

The owner was absent at the time when the cause was heard, and it is not reasonable to expect that the master would appreciate the importance of taking the objection at once. There is nothing to shew that the defendant ever waived this objection.

COCKBURN, C.J.-I am of opinion that there should be no rule, and that the case is not one in which a writ of prohibition ought to be granted. It is conceded that the County Court had jurisdiction over the subject-matter of the suit, and the only ground for calling upon it not to exercise this jurisdiction was that at the time the cause was commenced the owner was domiciled in this country. But there can be no doubt that this objection ought to have been made before judgment was pronounced. It may be that an application can still be made to the County Court itself to set aside the judgment, or to order that no further proceedings be taken upon it. I do not know how that may be, but it is too late to apply to this Court for a prohibition. It has been urged that the master was inops consilii, and, in the absence of the defendant, did not know what was the proper course for him to take. But there was nothing to have prevented him from consulting an attorney, and obtaining advice as to his position.

BLACKBURN, J.-I am of the same opinion. The general rule was that where necessaries were supplied to a ship in England, the common law had jurisdiction, but where the necessaries were supplied abroad, the jurisdiction was in the Court of Admiralty. Then the Admiralty Act provides that the Admiralty shall possess this jurisdiction over claims for necessaries supplied to the ship elsewhere than in the port to which she belongs, unless it is shewn that the shipowner is domiciled in this country. This seems clearly to confer upon the Court a general jurisdiction over necessaries whether supplied at home or abroad, unless it is shewn that the owner is domiciled in England, and it as clearly meant that this

proof should be given before judgment. The objection in the present case was not taken until after judgment, and is there

fore too late.

MELLOR, J., and LUSH, J., concurred.

COCKBURN, C.J.-I may add as another reason why the objection should be taken before judgment is pronounced, that the domicile of the owner is a question of fact upon which it may be desirable to hear evidence in the presence of both parties, before judgment is pronounced. Rule refused.

Attorneys-Ingledew, Ince & Greening, for applicant.

1872. May 7.

{

THE QUEEN, ON THE PROSECUTION OF JUSTICES OF MIDDLESEX (respondents), v. TAYLOR (appellant). Alehouse-License for Sale of Exciseable Liquors-Application to Special Sessions after unsuccessful Application to General Sessions-Neglect to Appeal-New Tenant -9 Geo. 4. c. 61. s. 14.

A house in Middlesex, kept for some years as an inn, under 9 Geo. 4. c. 61, was in February, 1872, left by the licensed tenant, who gave up possession to T. In March following, at the annual general licensing meeting, application was made for a license on behalf of T., but this was refused, and no appeal was made from the decision. The license expired on April 5th, when the house was shut up, and in May T. applied under s. 14 to the special sessions for a license, who refused it on the ground that the application had been already disposed of at the general licensing sessions:-Held, that after an unsuccessful application at the annual general licensing meeting, T. could not afterwards renew his application at the special sessions.

[For the report of the above case, see the volume for 1873-42 Law J. Rep. (N.S.) M.C.]

1872. HOLT V. THE GASLIGHT AND COKE June 5. COMPANY.

Lands Clauses Act (8 Vict. c. 18), s. 49 -Injury by Severance-Land held with Land taken-Precarious Interest.

The plaintiffs, a volunteer corps, obtained leases of different plots of land for the erection of a rifle range of 800 yards. Immediately behind the butts was a land occupied by A, and beyond that some marsh land, both of which were required by the rifle corps for the purpose of making provision for the safety of the public during the time the butts were in use. The plaintiffs obtained a lease of the marsh land, but only made a verbal agreement with A for the use of his land during the rifle practice, in consideration of an annual payment of 491. The defendants under their compulsory powers took a portion of the marsh land occupied by the plaintiffs, for a use which put a stop to the use of the rifle range. At an inquisition under the Lands Clauses Act, 8s. 38, 50, the jury assessed the value of the land taken, and damage for the injury to the rifle range:-Held, that there might be an injury from severance within the meaning of the Act, although the land taken was not immediately contiguous to that retained by the plaintiffs, and that the fact that the plaintiffs had a precarious occupation of the land A only affected the quantum of compensation to be awarded to them.

CASE stated for the opinion of the Court without pleadings. The following are the material facts

1. The action was brought by the plaintiff as the commanding officer of the Tower Hamlets Rifle Volunteer Brigade within "The Volunteer Act, 1863."

2. On the 15th of May, 1868, the brigade had acquired and were in the possession and occupation of certain lands situate near Plaistow, Essex, these lands being used by them as a rifle

range.

3. By indenture dated the 1st of December, 1860, between James Simmons and three trustees for the volunteer corps, a piece of marsh land at Plaistow containing about 10 acres was demised by Simmons to the trustees for a term of twenty-one years from the 29th day of

September, 1860 (determinable at the end of the first seven or fourteen years), at the yearly rent of 1001.

4. By another indenture dated the 28th of February, 1861, and made between William Blake and the same three trustees, another piece of marsh land at Plaistow, containing about 14r. 23p. adjoining the first mentioned land, was demised by Blake to the trustees for a term of twenty-one years from the 25th of December, 1860, determinable by the lessees at the end of the first seven or fourteen years.

5. Upon the lands so demised, which were pieces of marsh pasture land, and worth for grazing or agricultural purposes about 31. an acre annually, the tenant paying all rates and taxes, except property tax, two permanent butts for the purpose of rifle shooting, the one of brick, the other of iron, were erected by the corps at a considerable expense, giving a firing range up to 800 yards on the demised land.

6. The range was duly inspected, certified and authorised, and was thenceforward and until the 15th of May, 1869, regularly and continually used by the corps, and afterwards by the brigade and by other volunteer corps, their lessees, for the purpose of rifle shooting, except during a short time in the years 1864 and 1865, when they were restrained by the injunction hereinafter mentioned.

8. The land in the rear of and beyond the butts for a distance of upwards of 1,000 yards was flat, open marsh land, unbuilt upon and used almost entirely for the feeding of cattle, and the corps never had or acquired any rights in or over the same except as hereby appears. In the year 1864, Mr. Edward Raphael, who was the owner of the land lying a little distance in the rear of the butts, complained that (as the fact was) the bullets which passed the butts reached his land, killed cattle grazing there, and rendered it dangerous to go upon it, and he thereupon filed a bill in Chancery to restrain the shooting at the butts. In the month of July, 1864, he obtained an injunction accordingly, and thereupon an agreement was come to between the corps and him for his leasing to them the land in question.

9. Accordingly by indenture dated the 22nd of May, 1865, between Raphael and a trustee, the last-mentioned land, containing about 23a. 1r. 22p. was, demised by Raphael to the trustee, for a term of seventeen years and one quarter of another year from the 29th of September, 1864 (determinable as therein mentioned), at the yearly rent of 1441. This lease was in full force at the time of the service of the notice to treat, and of the entry hereinafter mentioned.

10. The brigade paid to the tenant or occupier of the land lying immediately behind the butts, and between the land demised by Simmons and Blake and the land demised by Raphael, an annual sum of 491. as an agreed commuted payment or compensation for any injury done to the cattle on the land by or in course of the shooting at the butts. The arrangement to make this payment was an annual arrangement, not reduced to writing, and it was open to either the tenant or the brigade to discontinue the arrangement at any time on giving a proper notice.

11. The brigade used the range for the rifle practice of their members, but as the use of the range for this purpose was only required on certain days in the week, they let to other volunteer corps the right of shooting at one or both of the butts on the other days, and by these lettings, and by the letting of the grazing on part of the land, the brigade realised, or were in a position to realise, an annual income.

15. By the Gas Light and Coke Company's Act, 1868, 31 & 32 Vict. c. cvi., the defendants were authorized to execute certain works, and to purchase and take, under the provisions of the Lands Clauses Consolidation Act, 1845, certain lands, among others, a piece comprising nine and a half of the twenty-three acres rented by the brigade of Raphael, lying to the left of and occupying the whole length of Raphael's land, about 150 yards wide and 300 in length, for the purpose of making a private road.

This road when completed will be the principal access to the gas works of the defendants at Beckton, and was acquired by them for such purpose; it is and is

intended to be kept and used as a private road.

16. In pursuance of the powers of the Special Act and of the Lands Clauses Consolidation Act, 1845, the defendants on the 5th of October, 1868, caused to be served on the honorary secretary of the brigade a notice to treat for the nine and a half acres, and afterwards duly issued their warrant to the Sheriff of Essex pursuant to the Lands Clauses Consolidation Act, 1845, for summoning a special jury to ascertain and determine by their verdict the amount of the purchase-money and compensation payable by the defendants to the plaintiff.

Upon the hearing of the inquiry it was proved that upon, and by reason of, the construction of the road, it became impossible for the brigade or their lessees to use the shooting range. The piece of land taken by the company, was a necessary and essential part of the road, without which it could not have been formed.

20. The plaintiff on behalf of the brigade claimed compensation on the footing that in addition to the purchasemoney or compensation payable to him. for or in respect of his interest mentioned in the lands taken, he was entitled to compensation for the damage sustained by the shutting up of the range for rifle practice, as being a damage sustained by him by reason of the severance of the land taken from the other lands held under the several demises aforesaid, and that in assessing such compensation the jury might and ought to take into account the value of the whole of the lands in which the plaintiff was interested, as aforesaid, as a rifle range, as well for use by the brigade as for letting to other volunteer corps for the purposes of rifle shooting.

22. It was contended for the defendants that the brigade had no legal right to use the land immediately behind the butts for the purposes of firing at the butts at all, inasmuch as they had no right or easement in or over the land, and the same land was absolutely essential to a use of the butts; that at best they had a mere permissive user revocable by the owner on any day without notice; that the taking of land by