IN RE ELECTION FOR THE ELECTORAL DIVISION OF THE COUNTY OF MONCK.

32 Vict., ch. 21, ss. 57- List of Voters not delivered in time-Wrong list used-Amendment of petition.

[32 U. C. Q. B., 147.]

The 32 Vict., ch. 21, sec. 7, and sub-sec. 1, enacts that the clerk of each municipality shall, in each year, make from the assessment rolls a list of the persons entitled to vote therein, and deliver it to the Clerk of the Peace on or before

the 15th August. By sub-sec. 3, this period shall be directory only to the clerk, " and the said lists shall be valid and effectual for the purposes of this Act, even though not so completed and delivered by the said period of time;" and by sub-sec. 10, no person shall be admitted to vote unless his name appears on the last list of voters, delivered to the Clerk of the Peace " at least one month before the date of the writ to hold such election."

The writ to hold the election was tested on the 25th February, 1871. The list of voters for one of the townships in the Electoral Division was made up from the assessment roll of 1870, and sworn to on the 13th August; but it was not delivered to the Clerk of the Peace until the 17th March, 1871. The list for 1869 had been delivered on the 19th August of that year.

Per Richards, C. J., and Morrison, J., the list of 1869 was the one which should have been used.

Per Wilson, J., that of 1870 was properly

used; for that the month should be construed to mean a month from the 15th August, when the roll should have been, or any earlier day when it may in fact have been, delivered; that the roll, though delivered too late, would not otherwise be valid and effectual for the purposes of this Act;" and the neglect of the clerk should not be allowed to disfranchise voters.

Vendor and purchaser-Specific performance-Mistake. Plaintiff offered for sale a plot of land fronting the street, 176 feet deep, possessing a frontage of about 40 feet, which he described as well adapted for bank or insurance buildings, a public institution, carriage factory, or any building requiring space, or two good houses or shops. The defendant contracted to purchase it as a site for a carriage factory, but subsequently discovered that he would not be able to build within 62 feet 3 inches of the street, by reason of the restriction placed on building beyond the general line of buildings in the street by the Metropolis Local Management Act (25 & 26 Vict. chap. 102), sec. 75.

Held, that the defendant was at liberty to resist a suit for specific performance on the ground that he had purchased under a misapprehension.

[20 W. R. 862-May 2, 1872.]

In December, 1870, the plaintiff was seized in fee simple of the messuage and premises, No. 157, Queen's road, Bayswater, consisting of a plot of ground 176 feet deep, and possessing a frontage of nearly 40 feet to Queen's road, with a house standing thereon, the front of which was distant 62 feet 3 inches from the street. Between this house and the street there was a forecourt. In the same month, the plaintiff circulated a handbill, offering the property for sale following paragraph :— by private contract. The handbill contained the

"In this wealthy and vastly increasing business locality, the site is well adapted for bank or insurance buildings, a public institution, carriage factory, or any building requiring space, or two good houses or shops, which would be fairly worth £160 per annum."

The defendant, who was in want of a freehold site for the erection of a carriage factory, saw a copy of this handbill, and had an interview with the plaintiff, who represented that the purchaser would be at liberty to build on the forecourt within five feet of the road, and the defendant ultimately agreed in writing to buy the property for £2,700. On the 25th of February, 1871, the defendant, accompanied by his surveyor, had another interview with the plaintiff. At this interview the plaintiff produced a plan, which showed that the general line of buildings, referred to by the Metropolis Local Management Act, 1862, 25 & 26 Vict. chap. 102 sec. 75, ran along the front of the existing house, and that in consequence no building above twelve feet in height, or thereabouts, could be erected on the space between the house and the street, unless with the consent of the Metropolitan Board of Works. Upon this the defendant repudiated the contract, and the bill was filed for specific performance.

The Metropolis Local Management Act, 1862, 25 & 26 Vict. chap. 102 sec. 75, provides that no building shall, without the consent in writing of the Metropolitan Board of Works, be erected beyond the general line of buildings in the street in which the same is situate.

Fischer, QC, and W. Barber, for the plaintiff. The situation and nature of the property fixed the defendant with notice of the restriction on

building beyond the general line of buildings in the street: Davies v. Sear, 17 W. R. 390, L. R. 7 Eq 427. There was no misrepresentation on the part of the plaintiff, such as to avoid the contract: Scott v. Hanson, 1 Sim. 13; Dyer v. Hargrave, 10 Ves. 505; Swaisland v. Dearsley, 9 W. R. 526, 29 Beav. 430; Adams v. Weare, 1 Bro. C. C. 567; Webb v. Direct Portsmouth Railway Company, 9 Ha. 129; Stuart v. London and North Western Railway Company, 16 Beav. 513. [On the subject of the general line of buildings, they referred to Brutton v. Parish of St. George, Hanover Square, L. R. 13 Eq. 339.]

Southgate, QC., and C. Hall, for the defendant, relied on the general law of the court with respect to mistake as a defence to a suit for specific performance, and cited Wood v. Scarth, 3 W. R. 350, 2 K. and J. 33; Wycombe Railway Company ▼. Donnington Hospital, 14 W. R 359, L. R. 1 Ch. 268; Malins v. Freeman, 2 Keen 25; Day ▼. Wells, 30 Beav. 220; Webster v. Cecil, Ib. 62, 10 W. R. Ch. Dig. 70.

Fischer, Q.C., replied.

May 2-Lord ROMILLY, M. R., said that he never saw a clearer case of mistake. How could the Court compel the defendant specifically to perform a contract which he admittedly entered into with the object of being able to build over the whole area of the plot of ground up to any height that he pleased, on the ground that he ought to have known better, and that if he had looked into the Metropolis Local Management Act he would have found out the restriction? It did not appear that he bought the property on the chance of obtaining the consent of the Metropolitan Board to his building over the whole area of the property. That distinguished the case from Adams v. Weare (sup.). In that case a man bought a plot of ground in the hope that the corporation, who had authority in the matter, would allow him to build a mill on it; and when the Corporation refused to allow him to build a mill on it, the Court held that he was, nevertheless, bound to perform his contract. But in that case the vendor said, "If you choose to enter into the contract, it must be absolute, and not conditional, on the Corporation allowing you to build ;" and after that he was not at liberty to set up the defence that the contract was conditional. If that had been the case now before the Court, if the defendant had said, "I will take it if the Board will allow me to buiid over the whole site," and the plaintiff had said, "No; you must take it unconditionally, or not at all," in that case the defendant would have do defence. As it was, his Lordship thought that the defendant entered into the contract in the belief that he would be able to build over the whole site, and that this was clearly proved. He could not under such circumstances make a decree for specific performance The bill must be dismissed, but without costs, for the defendant ought to have ascertained whether the property was really available for the purpose for which he wanted it before contracting to buy it.

COMMON PLEAS.

GRIMWOOD AND ANOTHER v. Moss. Landlord and tenant--Ejectment-Forfeiture-Distress—

Waiver.

Subsequently to Midsummer-day a lessor brought ejectment for breaches of covenant committed prior to that day, and he afterwards distrained for rent due up to the same day.

Held, that the ejectment operated as an election to determine the tenancy, and that the distress, whether lawful or not, did not vary that election.

Per Willes, J.-That the distress was an act of trespass. Jones v. Carter, 15 M. & W. 718, followed.

[20 W. R. 972-June 18, 1872.]

This was an action in ejectment tried at Chelmsford before Hannen, J. It appears that the plaintiffs were lessors of a farm demised to defendant, and that breaches of covenant involving ferfeiture had been committed by the latter before the 24th of June. The date of the writ was the 21st July. In September the plaintiffs distrained upon the goods of the defendant.

No particulars were given in the action of ejectment till October.

The verdict was entered for the plaintiffs, leave being reserved to enter it for defendant.

A rule having been obtained,

Denman, Q.C., (Dixon with him,) showed cause. On citing Jones v. Carter, 15 M. & W. 718, he was stopped by the Court.

Garth, Q.C., and Shaw, in support of the rule. There was no breach of covenant subsequent to the 24th of June, and by the distress in September for rent due up to the 24th of June plaintiff affirmed the tenancy up to that date. If defendant had brought replevin he would have failed: Doe v. Williams, 7 C. & P. 332. The plaintiff gave no particulars till October, therefore his act was not unequivocal. [WILLES, J. -Either the distress was lawful under Statute of Anne, or the tenant has his remedy by action of trespass, and if the landlord pleaded the tenancy the plaintiff could reply the ejectment.] They also cited Doc v. Meux, 4 B. & C. 606, I Sm. L. C. 30, Dumpor's case; Croft v. Lumley, 27 L. J. Q. B. 321; Dendy v. Nicholl, & W. R. 502, 27 L. J. C. P. 220.

Denman was heard in reply.-There is no case of receipt of rent or distress after ejectment being considered a waiver of forfeiture: Bridges v. Smyth, 5 Bing. 410.

WILLES, J.-Upon the ground urged so strongly by Mr. Denman, I am of opinion that this rule ought to be discharged. It appears that on 21st July, the plaintiff brought ejectment, which is, prima facie, an action not upon title, but in affirmance of one of the state of things in which, according to the agreement, the landlord is entitled to re-enter. The action of ejectment differs from other actions in that it gives no reasons why the plaintiff claims and discloses no title. The law waives any particulars of demand unless they are called for by the tenant, who may have them if he calls for them, even before appearance. Until then, the action is at large, and is referred to the first breach upon which the landlord is entitled to enter, and of which there has been no waiver before action (see Jones v. Carter). I agree that the principle is that action by ejectment was substituted for ancient entry; but it is not an equivocal act if you consider it as an act asserting the existence of every cause which justifies the landlord in entering: Grenville v. College of Physicians, 12 Mod 386. It is quite clear that if instead of bringing his action the landlord bad entered, such entry would have been justified by each act of forfeiture up to the time of trial. If so, the subsequent distress would be idle, and could not defeat a prior entry, but would be a simple act of trespass, unless it were justified by the Statute of Anne, as to which it is unnecessary to enquire; but even if it is valid under the Statute it is not so by reason of any term which is asserted to continue, for that is put an end to. The matter then comes to this-that you have an action which is equivalent to entry on 21st July-is that made wrongful by reason of a subsequent distress, which, if valid, is so by reason of the term being put an end to, and for which if it is not valid the tenant has his remedy in trespass I think in accordance with Lord Holt's opinion that the entry had relation to the first breach, in respect of which the landlord was entitled to enter. I also think, in accordance with the judgment in Jones v. Carter, that ejectment is equivalent to such entry, and that any subsequent act of the landlord is either void, or

EXTRACTS FROM THE BLUE LAWS OF CONNECTICUT.

No Quaker, or dissenter from the establised worship of this dominion, shall be allowed to give a vote for the electing of magistrates or any other officer.

No food or lodgings shall be offered to Quaker, Adamite or heretic.

If any person turns Quaker, he shall be banished, and not suffered to return but on pain of death.

No priest shall abide in the dominion; he shall be banished, and suffer death on his return.

Priests may be seized by any one without a

warrant.

No one to cross a river but an authorized ferry

man.

No one shall run on the Sabbath day, or walk in his garden or elsewhere, except reverently to and from meeting.

No one shall travel, cook victuals, make beds, sweep house, cut hair, or shave on the Sabbath day.

No woman shall kiss her children on Sabbath or fasting days.

The Sabbath shall begin at sunset on Saturday. To pick an ear of corn growing in a neighbour's garden shall be deemed theft.

A person accused of trespass in the night shall be judged guilty, unless he clears himself by his

oath.

When it appears that the accused has confederates, and he refuses to discover them, he may be racked.

None shall buy or sell lands without permission of the selectmen.

A drunkard shall have a master appointed by the selectmen, who are to bar him from the liberty of buying and selling.

Whoever publishes a lie to the prejudice of his neighbour, shall be set in the stocks, or be whipped ten stripes.

No minister shall keep a school.

Every ratable person, who refuses to pay his proportion to support the minister of the town or parish, shall be fined by the court 51d., and 418. every quarter, until he or she pay the rate of the minister.

Men-stealers shall suffer death.

Whosoever wears clothes trimmed with gold, silver or bone lace, above 1s. per yard, shall be presented by the grand jurors, and the selectmen shall tax the offender £300 estate.

A debtor in prison, swearing he has no estate, shall be let out and sold to make satisfaction.

Whosoever sets a fire in the woods, and it burna a house, shall suffer death; and the persons suspected of this crime shall be imprisoned without benefit of bail.

Whosoever brings cards or dice into this dominion shall pay a fine of £5.

No one shall read Common Prayer books, keep Christmas or set days, eat mince pies, dance or play cards, or play on any instrument of music, except the drum, trumpet and Jews's harp.

No gospel minister shall join people in marriage. The magistrate only shall join them, as he may do it with less scandal to Christ's church.

When parents refuse their children convenient marriages, the magistrates shall determine the point.

The selectmen, on finding children ignorant, may take them away from their parents. and put them in better hauds at the expense of their parents.

A man that strikes his wife shall pay a fine of £10.

A woman that strikes her husband shall be punished as the law directs.

A wife shall be deemed good evidence against her husband.

No man may court a maid in person or by letter without having first obtained consent of her parents: £5 penalty for the first offence, £10 for the second, and the third, imprisonment during the pleasure of the court.

Married persons must live together, or be imprisoned.

Every male must have his hair cut round according to his cap.

Upon the trial of a suit of divorce, one of the witnesses was asked whether he had spoken to any of the jury since the trial commenced. "Yes, sir. I spoke to Mr. -," pointing to a juryman with a face as red as a blood beet. "What did you say to him?" Witness appeared reluctant to tell. The attorney insisted upon the answer. Well," said the witness, I told him that he had a pretty face to sit on a jury to decide whether a man was an habitual drunkard or not."-Pittsburgh Legal Journal.

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