67 / 266
dealing with those matters at one and the same
time. . . . I am clearly o f opinion that the plaintiff’s
having submitted and obtained taxation, and inci
dentally payment, o f their costs o f the action, were
not entitled to tax, as between party and party,
any further bill. A litigant is not, in my opinion!
entitled to select a portion of the costs, submit that
portion for taxation as his costs of the action recover
able under the judgment, and, after obtaining an
allocatur, make a selection o f a further part o f his
costs, and successfully apply for taxation o f a bill
for those further items as between party and party ;
nor is he, having obtained taxation, entitled to an
order to pay the amount o f the allocatur.”
(Estate o f Segalov (1952) 2. All E. R.
To-j).
User o f Premises
I
f
the plaintiffs, builders, propose to let part of their
shop premises to the defendant, a solicitor, and
agree to alter them into offices for him, and, after
the work has been carried out, the head landlord
refuses to agree to this alteration on the ground
that it would be a breach o f covenant in the head
lease, are the plaintiffs entitled to sue for the p.ice
o f the work done ?
“ No,” said the Court o f Appeal (Somervell,
Denning and Romer, L. J. J.), “ because both parties
had acted on a false assumption. The plaintiffs had
held themselves out as being able to grant a sub
lease, and, when consent was refused, a funda
mentally different situation from that contemplated
by the parties unexpectedly emerged, and the
contract ceased to be binding. The Court must
decide on which party the loss must fall; and as
the plaintiffs had done the work on their own
premises, and might be able to derive some profit
from it, while the defendant could not in any
circumstances benefit from it, the plaintiffs must
bear the loss.”
Per Somervell, L. J. : “ I f consent was necessary,
then I would have said the plaintiffs were represent
ing; by offering to do the work and by sending in
their estimate, that they had obtained it. But they
had not, and it was never given.”
Per Denning, L. J. : “ In this situation, it seems
to me the law itself must say what the rights of the
parties are. There is no other way. The parties
cannot help, so the law must solve it. The solution
is to be found by asking : On whom, in all the
circumstances should the risk fall ? It seems to me
it should fall on the plaintiffs. They knew all the
conditions which had to be fulfilled before they
could grant a sub-lease, and were doing work on
their own property, whereas the solicitor did not
know o f those conditions until the work was half
done.”
Per Romer, L. J. : “ It seems to me chat where
you find that somebody knows o f a risk involved
in a proposed transaction, and the other person in
the transaction does not know o f that risk, there is
a strong
prima fa cie
inference that the risk is to be
borne by the person who knew o f it, and not by
the person who did not.”
(Jennings and Chapman Ltd.,
v.
Woodman,
Matthews & Co. (1952) 2.
The Times
L. R. 409).
UNDERTAKINGS -BY SOLICITORS
T
he
Council wish again' to draw attention to the
matter o f undertakings given by solicitors. They
refer to a statement published in the
G
azette
of
December, 1952. They have now been requested
to call attention in particular to undertakings given
by solicitors to Law Agents o f Banks. Cases have
arisen where the Deeds or purchase money in
respect thereof had been handed direct to the
Bank’s customer by the solicitor instead o f being
dealt with as in the undertaking.
Particular regard should be had to undertakings
given to banks or their Law Agents as any increase
in the number o f breaches might lead to the Banks
adopting a different policy in regard to the lending
o f title deeds, to the great inconvenience o f the
profession. Members are requested to read the
undertaking which they sign on receiving' title
deeds and to adhere strictly to its promises.
LIBRARY ACQUISITIONS, 1952
A
dk in
—The Law o f Dilapidations, 3rd edition, 1951.
A
llen
—Law and Orders, 1^45.
A
llen
—-Law in the
Making, 1930.
A
ll
E
ngland
L
aw
R
eports
—
Index, 1936-1951.
B
ibliograph ic
I
ndex
— 1943,
1948 and 1949 (Donation).
B
orrie
—Converting a
Business into a Private Company, 1950.
B
owstead
—Law o f Agency, n th edition, 1951.
B
rady
—
Digest of Oyster Fishery Laws, 1881.
B
righouse
—Short Forms of Wills, 6th edition, 1951.
B
ullen
and
L
eake
—Precedents of Pleadings, 10th edition,
1950.
B
urton
—Local Rates, 1950.
B
utler
—
Income Tax for Everyman, 1951.
B
utterworth
’
s
C
osts
—First Supplement, 1952.
C
arver
—Carriage
of Goods by Sea, 9th edition, 1952.
C
hesh ire
—
Modern Real Property, 1933.
C
heshire
—Private
International Law, 4th edition, 1952.
T
he
C
ompleat
C
onveyancer
—1791.
C
rim inal
A
ppeal
R
eports
—Index, Vols. 1-34, 1952.
D
alrymple
—French-
English and English-French Legal Dictionary, 1951.
D
oheny
—Canonical Procedure in Matrimonial
Causes (2 vols., 1948).
E
nglish
and
E
mpire
D
igest
—Second Cumulative Supplement, 1952.
F
ottrell
—Guide to Labourers Acts, 1833 (Dona
tion).
G
ibson
—Conveyancing, 15th edition, 1938.