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 v. 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 v. 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 v. 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 v 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