The Gazette 1946-49

them as executor jointly with his co-defendants.

A solicitor connotes a client and a man cannot be

solicitor for himself. The Court further expressed

the view that even if the mortgagee had survived,

or if the solicitor defendant has not been one of his

executors, his lien would have been lost by reason

of his having acted in the capacity of solicitor for

both mortgagor and mortgagee, even though the

title deeds never left his office.

The solicitor defendant appealed against the order

of the High Court. The Court of Appeal took the

view that the application by the solicitor to the

High Court for an order declaring him entitled to

a retaining lien had been premature and that the

Trial Judge should have refused to hear it in the

form and at the time it was brought before him.

The time when the question of a solicitor's lien

should be decided is in the light of the facts existing

when the moment comes for delivery of the deeds,

and any application for a declaratory order before

that time is misconceived.

In the result, the solici–

tor's application was dismissed and the order of the

Trial Judge was discharged

leaving

it for the

parties to make any further application they thought

advisable at

the appropriate

time. The Court

of Appeal did not express any views on the reasons

given by the Trial Judge for refusing the declaratory

order sought by the solicitor and although the order

of the High Court was discharged, the reasons for

the judgment of that Court will, no doubt, command

respect on the position as it affects solicitors.

In the case of Jordan

Limmer and Trinidad

Lake Asphalt Company and others (62 T.L.R. 302)

an interesting point was raised in connection with

the quantum of damages in an action for damages

for personal injuries. No question was raised on

the issue of liability. The plaintiff in his claim

for damages included as one of the items of special

damage thirty-two weeks' wages at £11

IDS. 6d.

per week. The plaintiff was liable to income tax

which, in accordance with the Income Tax regula–

tions in England, was deducted weekly from his

wages, so that the actual sum receivable per week by

the plaintiff on foot of wages and which he would

have continued to receive had he not suffered the

injuries the subject of the action, would have been

a net sum less than £11 los. 6d. per week.

It was

contended on behalf of the defendants that the

Court in awarding the special damages should take

into account the income tax deducted, and that if

the Court acted on any other basis of calculation

the plaintiff would be awarded for'special damages a

sum exceeding his actual loss as the result of the

accident. It was decided in the case of Fairholme

Thomas Firth and Brown Ltd. (49 T.L.R. 470)

that such a contention could not be upheld in the

circumstances which existed before the introduction

of the " pay as you earn " income tax regulations:

In that case a plaintiff sued for wrongfal dis.nissa

and was awarded £18,000 dr.mg;s, cilcul.uad on

his annual salary. The amount of the inco-ne tix

thereon was ascertainable and the defendants claimed

to be entitled to deduct it. The Court in that cise

held that in assessing damiges as between mister

and servant regard should not be taken of the

servant's liability to the Crown which was

res inter

alias acta.

In Jordan's case the High Court, following

the decision in Fairholme

Thomas Firth and

John Brown, Limited, held that the position was not

altered by the " pay as you earn " regulations and

that the only matter which the Court should consider

was the contract of employment which existed at

the time of the accident, irrespective of the liability

of the plaintiff to income tax. Atkinson, J. held

that he was not called upon to decide whether or

not the plaintiff could be assessed to income tax

in respect of the gross sum included in the damages

awarded on foot of the loss of earnings; that if the

Revenue took the view that it could not be assessed,

or if they claimed to make an assessment and failed

in their claim, so much the better for the plaintiff.

In Cumberland Consolidated Holdings Limited

Ireland (62 T.L.R. 215) a question arose which

may sometimes cause trouble between vendor and

purchaser after the completion of the sale of premises

under a contract for sale with vacant possession.

The plaintiff-purchasers and the defendant-vendor

made a contract for the sale with vacant possession

of certain premises. The contract contained

inter

alia

conditions that the plaintiffs were to be deemed

to buy with full notice of the actual state and

condition of the property and should take it as it

was. The premises consisted of a warehouse and

yard, the buildings on which had suffered as the

result of fire, and also cellars underneath

the

buildings. At the time of the signing of the con–

tract the cellars to a large extent were filled with

rubbish consisting of bags of cement and empty

drums, all of which were valueless. After the

completion of the sale the plaintiffs, on finding

that the rubbish had not been removed, called

upon the defendant to remove it and on his failure

to do so removed it themselves and brought an

action in the County Court to recover the cost of

the

removal.

The County Court Judge gave

judgment

for

the plaintiffs and

the defendant

appealed to the High Court. The main argument

for the defendant was that the plaintiffs having

inspected the premises before signing the contract

must accept possession of them as they stood and

that the covenant to give vacant possession was

complied with by handing over the keys, and by

the fact that neither the vendor nor any other person

was thereafter in a position to set up any right of