The Gazette 1952-1955

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.