which had been bought in at the sale to their premises and dispose of it, together with the pictures already at their office. The trustee added that any rights the defendants might have by way of lien upon the goods or proceeds of sale should not be prejudiced. The defendants, accordingly, sold and claimed to deduct from the proceeds the two sums due to them in respect of the furniture sale and of the attempted sale of the house. The trustee disputed their right to do so, and brought this action in the county court at Maidstone to recover the amount sought to be deducted-viz., the sum of £31 108. 9d., that amount being made up of the £7 4s. 9d. due on the furniture sale, and the £24 68. due on the abortive house sale. The learned judge gave judgment for the defendants, on the ground that there was one entire and indivisible contract between Langton and the defendants for the sale of the furniture and the house, and that they were, therefore, entitled by virtue of their auctioneers' lien to retain their charges in respect of both sales. He negatived a contention by the defendants that they were under any circumstances, whether the contract was one entire contract or not, entitled to a set-off in bankruptcy by virtue of section 38 of the Bankruptcy Act, 1883 (46 & 47 Vict. c. 52). The plaintiff appealed from this decision.

E. Bray, for the appellant. This is not a "mutual credit" within the meaning of section 38 of the Bankruptcy Act, 1883. The trustee was entitled to have these pictures returned to him, and could maintain an action in detinue to recover them, therefore the

"account" mentioned in section 38 could not be taken.

Counsel cited Eberles Hotels Co. v. Jonas, 35 W. R.

469, 18 Q. B. D. 459.

Hohler, for the respondent.-The debt due by the bankrupt to the defendant is a credit from the defendant to the bankrupt on the one hand, and the delivery of pictures by the bankrupt, with instructions to sell, is on the other hand a credit given by the bankrupt to the defendant. Section 38, therefore, applies, as there was a mutual credit within that section: Rose v. Hart, 8 Taunt. 499; Peat v. Jones, 30 W. R. 433, 8 Q. B. D. 147; Smith v. Hodson, 4 T. R. 211; Booth v. Hutchinson, 21 W. R. 116, L. R. 15 Eq. 30, Sm. L. C. 9th ed., vol. 2, p. 344. At the date of the receiving order the authority given to the defendants to keep the pictures for the purpose of sale became irrevocable as against the rights of the defendants under section 38: Naoroji v. Chartered Bank of India, 16 W. R. 791, L. R. 3 C. P. 444; Astley v. Gurney, 18 W. R. 44, L. R. 4 C. P. 714.

Bray, in reply.

Cur. adv. vult.

July 31.-Lord RUSSELL, C.J., read the judgment of the court. After stating the facts as set out above, the learned judge proceeded as follows:We are unable to concur in the view of the learned judge of the county court that there was one entire and indivisible contract between Langton and the defendants in reference to both sales. We think, on the whole, that the evidence does not warrant that conclusion. The case appears to us the ordinary one of auctioneers being instructed to sell, first, the furniture, and, secondly, the house. The mere fact that the instructions were given at or about the same time does not, in our opinion, justify the inference that the two sales took place under a single and indivisible contract. The circumstances of the two sales were different; they took place at different times and under different conditions. It therefore becomes necessary to consider whether his judgment can be supported on the other ground (that of mutual deal

HIGH COURT.

ings) relied upon. Section 38 of the Bankruptcy Act, 1883, so far as is material, is as follows:

"Where there have been mutual credits, mutual debts, or other mutual dealings between a debtor against whom a receiving order shall be made and any other person proving, or claiming to prove, a debt under such receiving order, an account shall be taken of what is due from the one party to the other in respect of such mutual dealings, and the sum due from the one party shall be set off against the sum due from the other party, and the balance of the account, and no more, shall be claimed or paid on either side respectively."

arise

This is a re-enactment in substance of section 39 of the Act of 1869, where for the first time the words "mutual dealings" were added to the words "mutual credits" and "mutual debts," which are alone used in the earlier statutes regulating the right of set-off in bankruptcy. The additional words undoubtedly have extended the right conferred by the earlier statutes. Under their provisions it had been considered from the year 1818, when Rose v. Hart, 8 Taunt. 499, was decided, that although "mutual credits" is a wider term than "mutual debts," the credits must be such as either must terminate in debts, or have a natural tendency to terminate in debts, and must not be such as terminate in claims differing in nature from debts: see Smith's Leading Cases, 9th ed., vol. 2, p. 336. The section in its present shape, however, has been held applicable to claims as well in respect of debts as of damages all demands provable in bankruptcy, and so to include liquidated or unliquidated, provided they out of contract. dainages for breach of covenant unascertained at the date of a deed of arrangement incorporating the enactments of the Bankruptcy Act, 1869, were allowed to be set off against a claim for accruing rent. And in Peat v. Jones the Court of Appeal followed Booth V. Hutchinson in holding the mutual credit clause in the Act of 1869 applicable to a claim for unliquidated damages, and held that such a claim might be set off in an action brought by a trustee without recourse to the Court of Bankruptcy. The same rule is applicable not only to actual breaches of contract, but also to breaches of obligations arising out of contract. It was accordingly held that in Jack v. Kipping, 30 W. R. 441, 9 Q. B. D. 113, that a claim for fraudulent misrepresentation on the sale of a chattel by a bankrupt could be set off against a claim by the trustee for the price.

Thus, in Booth v. Hutchinson,

But whilst the right of set-off has been thus widely extended, it is still subject to the limitation that the 'dealings" must be such that in the result the account contemplated in the section can be taken in the way therein described. In other words, the 'dealings" must be such as will end on each side

in a money claim. Otherwise the claims are incommensurable. It was upon this ground that the Court of Appeal in Eberles Hotel Co. v. Jonas, held that the defendant could not set off a debt due from the plaintiff company to him under section 38, the claim of the plaintiffs against him being for the return of chattels in specie in an action of detinue.

There could not be an "account" as between goods and money, and no balance could be struck.

It was contended by the plaintiff in the present case that the authority last referred to was in point. At the date of the receiving order (which, it was admitted, was the date at which the rights of the parties must be determined) the bankrupt, it was said, had a right to maintain an action of detinue for the return of the pictures in specie, and nothing else. Such a claim (it was argued) did not arise from a

HIGH CT.

HIGH CT.

dealing" within the true meaning of that term as used in section 38. It was the result of an interference with a right of property, and would not end in a money claim, and the case relied upon is, no doubt, an authority for that proposition. The defendants, on the other hand, contended that at the date of the receiving order no action for the return of the goods could have been maintained unless Langton had taken some step to alter the terms upon which the pictures had been deposited with them. Their position, they said, was that of bailees of the pictures with an authority to sell them so that there was a mutual credit" ог "mutual dealing then existing between the bankrupt and themselves-a credit on the one hand by them to him in respect of the sums due to them on the furniture sale account and in respect of their charges for the attempted sale of the house, and a credit on the other hand by the bankrupt to them in respect of the pictures and the moneys to be realized by the sale. We think that the latter is the true view of the relations between the parties. No action could, in our opinion, have been maintained by Langton when the receiving order was made. He had done nothing to revoke the authority conferred upon the defendants to keep the pictures on their premises for the purpose of sale, and the circumstance that he retained a control over the price does not seem to us to make any difference. The defendants were the depositaries of the pictures with an authority to sell them at approved prices, and as auctioneers they would certainly be entitled to receive for the vendor from the purchaser the amount realized. authority could have been revoked, but until revoked the deposit, with such an authority to sell and receive the proceeds, constituted, in our opinion, a giving of "credit" to the defendants (see Naoroji v. Chartered Bank of India, approved in Astley v. Gurney). There was a debt on one side and a delivery of property with directions to turn it into money on the other.

This

Upon the ground, therefore, that section 38 of the Bankruptcy Act of 1883 applies to this case, while we cannot agree with the reasons given in the court below for the judgment, we think that this appeal must be dismissed with costs on the grounds we have stated.

Appeal dismissed; leave to appeal refused. Solicitors for the appellant, Sole, Turner, & Knight, for W. C. Cripps & Sons.

Solicitor for the respondent, Walter Day, Maidstone.

Q. B. Div.

(Wright and Kennedy, JJ.)} June 17, 18; July 4.

REG. v. VESTRY OF ST. GEORGE, HANOVER
SQUARE. (a)

Metropolis Management Sewers London County Council-Power of county council to order vestries to construct sewers-. Metropolis Local Management Act, 1855 (18 & 19 Vict. c. 170), s. 138.

The London County Council have no power, under section 138 of the Metropolis Local Management Act, 1855, to order the vestry of a parish in the metropolis, in which parish certain houses are situate which discharge their sewage directly into the River Thames, to construct a new sewer for the purpose of receiving the drainage of such houses and preventing its discharge

into the river.

(a.) Reported by T. MATHEW, Esq., Barrister-atLaw.

In this case a rule nisi for a mandamus had been obtained at the instance of the London County Council directed to the Vestry of St. George, Hanoversquare, in the county of London, calling upon them to show cause why they should not comply with an order made on the 4th of December, 1894, by the London County Council, directing them to construct a sewer therein described, or to execute sufficient works to secure the communication with the main sewers of the metropolis of the sewer or drain receiving the sewerage from certain premises in the said order mentioned.

The question that was raised before the court was whether the London County Council, as the successors of the Metropolitan Board of Works, had power to order the vestry to construct the sewer. It appeared that the attention of the county council was called by the Thames Conservators to the fact that the drainage of certain houses, numbered 102, 103, and 104, Grosvenor-road, Pimlico, was discharged into the River Thames. The county council thereupon communicated with the Vestry of St. George, Hanover-square, the local authority, in order that that body should cause the sewage to be diverted into a local sewer, but the vestry refused to execute the work.

The county council thereupon made an order upon the vestry to construct a sewer to receive the drainage of the said houses.

This order the vestry refused to carry out, contending that the London County Council had no jurisdiction to order them to do so.

On the above facts a rule nisi was obtained. Channell, Q.C., and Macmorran, showed cause on behalf of the vestry.

Bosanquet, Q.C., and English Harrison, appeared on behalf of the county council, in support of the rule.

Cur. adv. vult.

July 4.-WRIGHT, J.-In this case the question we have to decide is whether the London County Council, as representing the old Metropolitan Board of Works, has power to order the vestry to construct a new sewer for the purpose of taking the sewage of certain houses situate on the edge of the Thames Embankment into one of the low level sewers at some distance inland.

Act, 1855 (18 & 19 Vict. c. 120), the duty is placed By section 69 of the Metropolis Local Management upon the vestries of constructing sewers for the purpose of carrying local sewerage. As tending to show that the system intended was one which left the initiative to the vestry, and only gave the control to the Metropolitan Board of Works, it is material to observe that the vestry had not the power to construct any local sewers without the previous consent and approval of the Metropolitan Board of Works.

By section 135 of the same Act it was enacted that the Metropolitan Board of Works should have the power, but not that it should be their absolute duty, to construct such main sewers and works "as they may think necessary for preventing all or any part of the sewage within the metropolis from flowing or passing into the River Thames, in or near the metropolis, and shall also make all such sewers or other works and such diversions or alterations of any existing sewers or works as they may from time to time think necessary for the effectual sewerage and drainage of the metropolis."

By the Act of 1858 (21 & 22 Vict. c. 104) there was imposed upon the Metropolitan Board of Works the duty of constructing a system of sewerage so that the sewage should not pass into the Thames, and then, later, by the Act of 1862 (25 & 26 Vict. c. 102), several amendments in the law were made.

COURT OF APPEAL.

Railway company-Arbitration-Umpire's fees paid by landowner Action to recover Taxation Lands Clauses Consolidation Act, 1845 (8 & 9 Vict. c. 18), 88. 34, 35.

A landowner who himself takes up the award of the umpire in an arbitration and pays the umpire's fees cannot recover them from the railway company, though such fees may be costs which, under the statute, are payable by the promoters of the undertaking.

Where such fees have been paid by the landowner and the amount has been disallowed on taxation by the taxingmaster, the decision of the taxing-master cannot be reviewed in an action against the railway company. Appeal from Romer, J.

The plaintiff was a landowner, to whom notice had been given by the defendant railway company that they required some of his land.

The plaintiff claimed £21,700, and the railway company offered £9,500. The plaintiff having given notice to have the amount fixed by arbitration, the amount was fixed by the umpire at £11,865.

The plaintiff took up the umpire's award, and himself paid the umpire's fees, amounting to £410 4s. 6d.

The bill for the costs of and incidental to the arbitration was taxed by one of the taxing-masters, who struck out this item of £410 4s. 6d. as not being costs properly incurred by the plaintiff.

The defendants refused to pay these fees, and the plaintiff brought the present action to recover them. Romer, J., dismissed the action. The plaintiff

appealed.

Section 34 of the Lands Clauses Consolidation Act, 1845, is as follows: "All the costs of any such arbitration, and incident thereto, to be settled by the arbitrators, shall be borne by the promoters of the undertaking, unless the arbitrators shall award the same or a less sum than shall have been offered by the promoters of the undertaking, in which case each party shall bear his own costs incident to the arbitration, and the costs of the arbitration shall be borne by the parties in equal proportions."

Section 35 provides that 'the arbitrators shall deliver their award in writing to the promoters of the undertaking, and the said promoters shall retain the same, and shall forthwith, on demand, at their own expense, furnish a copy thereof to the other party to the arbitration, and shall at all times, on demand, produce the said award, and allow the same

(a.) Reported by ARNOLD GLOVER, Esq., Barristerat-Law.

COURT OF APPEAL.

Witt, Q.C., and T. L. Wilkinson, for the appellant. -Section 35 is ancillary to section 34, not restrictive of it. No doubt the company in this case might have been compelled to pay the fees, but it was not obligatory upon the plaintiff to compel them. Section 34 gives us a statutory right to these costs, and it is immaterial who first pays them. So far as the taxing-master affected to deal with the liability of the company he exceeded his jurisdiction.

They referred to Metropolitan District Railway Co. v. Sharpe, 28 W. R. 617, 5 App. Cas, 425; In re Walker and Brown, 30 W. R. 703, 9 Q. B. D. 434 ; Broadhurst v. Darlington, 2 Dowl. 38; In re Autothreptic Steam Boiler Co. (Limited) and Townsend, Hook, & Co., 21 Q. B. D. 182, 36 W. R. Dig. 55; In re Holliday and Mayor, &c., of Wakefield, 20 Q. B. D. 699, 36 W. R. Dig. 8; In re Sheffield Waterworks Act, 1864, 14 W. R. 143, L. R. 1 Ex. 54; In re Owen and London and North-Western Railway Co., 16 W. R. 125, L. R. 3 Q. B. 54; In re Sandback Charity Trustees and North Staffordshire Railway Co., 26 W. R. 229, 3 Q. B. D. 1.

Cozens-Hardy, Q.C., and Macnaghten, for the respondents. This is an attempt to obtain review of the taxation. The point was put by Cotton L.J., in In re Sandback Charity Trustees and North Staffordshire Railway Co.

Witt, Q.C., replied.

LINDLEY, L.J.-This is a curious action and one which, looking at it from a merely moral point of view, apart from legal principles, one would like to have decided in the plaintiff's favour, but I do not see my way to do so. The defendants took some land belonging to the plaintiff under the Lands Clauses Act. There was an arbitration, a reference to an umpire, and the umpire made an award, giving the plaintiff, it is true, less than he asked for, but a great deal more, him for the land which they wanted. or substantially more, than the defendants had offered Under those circumstances it became the duty of the defendants, under the statute, to pay the costs of and incidental to the arbitration, and that, I take it, included the expenses of the award-the umpire's fees. There is a method (I will read the section presently), pointed enabled the plaintiff to compel the defendants to out by the statute which, if pursued, would have take up that award, pay all those costs and give him paid a farthing. He was under no obligation himself a copy of it. That was the plaintiff's right before he He had a right under the statute to pay a farthing. to compel the defendants to pay the whole amount. But he did not pursue his rights. He did not follow the provisions of the statute at all. He had no right himself to go and get that award; but notwithstanding that, he goes to the arbitrator and says: you (the arbitrator) will give me that award, I will pay you £400." Now he wants to make the defendants repay that £400. How is he to do it? I confess, looking at it from that point of view, it appears to me that there is no obligation on the part of the defendants to reimburse him that money. It was paid for a convenience to himself and a convenience which he had no right to obtain, but which he did obtain under the arrangement to which I have alluded.

"If

Now, if we look at the sections of the Lands Clauses Act, we shall see exactly how the matter stands. Section 34 says that all the costs of the arbitration-the words are-" any such arbitration," but I need not comment upon the words "any such," it includes this-"all the costs of the arbitration