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PART II.

DIGEST OF CASES IN THE COURTS DECIDED AND REPORTED IN THE YEAR ENDED 30TH SEPTEMBER, 1906.

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DIGEST OF CASES IN THE COURTS DECIDED AND REPORTED IN THE YEAR ENDING 30th SEPTEMBER, 1906.

Acquisition of Land-see" Compulsory Acquisition of Land."
Act of Parliament--see "Highways:-(1)” "Rates and
Rating :--(3) "" Water."

Adjustment of Liabilities :-see also "Housing of Working
Classes,"

Constitution of County Borough Financial Relations between
County and Borough-Loss of Contributions-Arbitration-Local
Government Act, 1888, ss. 32, 62.

A provisional order of the Local Government Board confirmed by Parliament by which a borough was constituted a county borough contained a provision applying with modifications section 32 of the Local Government Act, 1888 (51 & 52 Vict. c. 41), to any adjustment to be made of any financial relations between the borough and the county from which it was separated. In respect of certain powers transferred from the county council to the county borough council the county was prejudiced by the loss of contributions from the area comprised in the borough, as the expenses incurred in exercising the powers in that area had been less than the contributions received; whilst in respect of other powers so transferred, the financial burden to be henceforth borne by the borough would be greater than the amount of contributions from which it would be relieved. Held that in an arbitration respecting such adjustment the arbitrator had power under section 32 of the Act to award compensation to the county and borough respectively for any losses thus arising out of the administrative changes. CATERHAM URBAN DISTRICT COUNCIL 7. GODSTONE RURAL DISTRICT COUNCIL' ([1904] A. C. 171) distinguished. Decision of King's Bench Division ([1905] 2 K.B. 340) affirmed. Re Durham County Council and West Hartlepool Corporation (C.A., 1 June, 1906), [1906] 2 K.B. 186; 75 L.J.K.B. 803; 94 L.T. 689; 70 J.P. 465; 4 L.G.R. 845; 22 T.L.R. 671.

Severance of United School District-Transfer of Powers--
Education Act, 1902, Sched. 2 (1) (22).

Before the appointed day under the Education Act, 1902 (2 Edw. 7, c. 42), the Borough of Wallsend formed part of a united school district. There were 3 schools within and 3 without the borough, and loans, repayable by instalments, were outstanding on all these

1 See Law and Legislation, 1904, p. 167.

2

See Law and Legislation, 1905, p. 79.

Adjustment of Liabilities- continued.

schools. The borough council became the local education authority of Wallsend for the purpose of Part III. of the Act, and the county council became the local education authority for that part of the united school district which was without the borough. It was contended by the county council that the 3 schools without the borough became absolutely vested in them subject to the respective liabilities thereon, and that no adjustment was necessary. Held that as the united district was severed and divided between the two new authorities there must be an adjustment of property and liabilities under schedule 2 (22) of the Act. OLDHAM CORPORATION V. BANK OF ENGLAND (1904] 2 Ch. 716) distinguished. Re Wallsend Corporation and Northumberland County Council (Ch. D., 2 Aug., 1906), [1906] 2 Ch. 506; 75 L. J. Ch. 813; 95 L. T. 259; 70 J. P. 434; 4 L.G. R. 1141; 22 T. L. R. 773

Adulteration-see "Fertilisers and Feeding Stuffs Act, 1893," "Sale of Food and Drugs."

Appeals see "Rates and Rating:-(1) Appeals."

Arbitration: -see also "Adjustment of Liabilities."

Declaration by Arbitrator or Umpire -Annexation to Award—
Invalidity-Public Health Act, 1875, s. 180 (10) (11).

If an arbitrator or umpire enters on a reference under the Public Health Act, 1875 (38 & 39 Vict. c. 55), without making the declaration before a justice required by sub-section (10) of section 180 of the Act and does not as directed by sub-section (11) annex such declaration to his award when made, the award will on a party to the arbitration becoming aware of the omission be set aside by the Court. Ludlow Corporation v. Prosser (K. B. D., 25 May, 1906), 70 J. P. 400; 4 L. G. R. 940; 22 T. L. R. 597.

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Evidence of Mother-Corroboration in "Some Material Particular"-Bastardy Laws Amendment Act, 1872, s. 4.

Semble (per Alverstone, L. C. J.) corroboration of the evidence of the mother "in some material particular by other evidence" as required by section 4 of the Bastardy Laws Amendment Act, 1872 (35 & 36 Vict. c. 65) must have some relation to the conduct of the putative father or to the probability of his being the father. Reffell v. Morton (K. B. D., 4 April, 1906), 70 J. P. 347.

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Borrowing:

Overdraft at Bankers—Interest on Overdraft-Illegal Payments out of Borough Funds-Audited Accounts-Duty and Liability of Borough Treasurer-Certiorari- Injunction Parties- Urban Authority-Municipal Corporations Act, 1882, ss. 20, 27, 106, 139-143, Sched. V. Part 1., Sched. VIII.; Public Health Act, 1875, ss. 189, 198, 209, 233-235, 245–247, 265.

A municipal corporation and an urban authority under the Public Health Act, 1875 (38 & 39 Vict. c. 55), had in March, 1903, exhausted all their borrowing powers and had in addition a large fluctuating overdraft at their bankers in respect of expenses previously incurred. The banking account was kept in the name of the borough treasurer, and during 1903 and 1904 the bank charged interest quarterly on the overdraft, and the treasurer in his accounts debited the borough and credited himself with the charges for interest, and his accounts were audited under sections 25 to 28 of the Municipal Corporations Act, 1882 (45 & 46 Vict. c. 50), by the borough auditors, who passed the charges for interest, and the audited accounts were approved by the borough council.

In an action against the treasurer by the Attorney-General, suing at the relation of a burgess, impeaching his accounts in respect of the charges for interest on the overdraft and claiming an injunction to restrain him from making any further payments for such interest out of the borough fund :

Held, that the corporation were not necessary parties to the action that the treasurer was not merely the servant of the council, but, as custodian of the borough funds, owed a duty and stood in a fiduciary position to the burgesses as a body, and could not plead the orders of the council for an unlawful act: dictum of Erle J. in REG. v. SAUNDERS (1854) (44 L. T. 406), 24 L. J. M. C. 45), applied; that following SMITH 7. SOUTHAMPTON CORPORATION' ([1902] 2 K. B. 244), the overdraft and interest thereon were illegal, and that the corporation were entitled to the injunction notwithstanding that the payments might be quashed by certiorari under section 141 (2) of the Municipal Corporations Act, 1882, or that there might be an appeal to quarter sessions against the rates; that the fact that the accounts had been audited was no bar to the action, and that the treasurer could not retain the charges for interest by way of his remuneration under section 20 of the Municipal Corporations Act, no remuneration in fact having been voted to him by the council.

Observations on the method of auditing borough accounts under the Municipal Corporations Act, 1882.

Attorney-General v. De Winton (Ch. D., 7 April, 1906), [1906] 2 Ch. 106; 75 L. J. Ch. 612; 54 W. R. 499; 70 J. P. 368 ; 4 L. G. R. 549; 22 T. L. R. 446.

1 See Law and Legislation, 1902, p. 182.

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