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case of irregularity: a defect in form, rather than in opportunity of arguing against the issuing of this writ. substance,

However, I am clear that, substantially, the plaintiff 2 Chitty's Archbold, 1458, 1460, (11th ed.) has no other remedy, and that if we were to withhold On the analogy of the practice under the Common Law the issuing of the writ now, we should withhold from Procedure Act, 1854, by which the Judges constantly the plaintiff the means of satisfying his claim. enlarge time in references, though the time has been

KEATING, J.-I agree, for the same reasons. I limited, we say that the arbitrator here could have think the distinction pointed out by my brother Byles enlarged the time after the time fixed had elapsed.

is a valid distinction. The case of Davics v. Price I As to the writ of mandamus, the defendants do not look upon as rather an authority in the plaintiff's deny that there is no other remedy open, and section favour. The declaration there was on the express sub89 of the Public Health Act expressly allows retro- mission ; and Crompton, J., appears to pronounce his spective rates in certain cases.


opinion on the effect of the protest with hesitation. Biles, J."-I am of opinion that this case should It seems to me a contradiction in terms that a party be decided for the plaintiff.

protesting should have the option claimed here by the
defendants. I


that a mandamus should go. It has been said that an enlargement of the time for making the award must be made within twenty-one

Judgment for the plaintiff. days of the appointment of the arbitrator, and an

C. P. objection was made, not to the jurisdiction of the

ROBBINS, Administratrix,

12 JAN., 12 FEB., arbitrator, but that he had not said to himself in


8 MAY, 16 Nov., 1863. the quiet of his own chamber,-for it goes to that extent-"I enlarge the award." The defendants Highway-Area Grating-Liability to Repair. accordingly protested against the proceedings, and in

When the area of a house extends under a path by the protest they say, in effect, “If your award is for us we will avail ourselves of it; if against us, we will

the side of a strect, and is covered by a grating for the upset it.” They appear, cross-examine, address the purpose of admitting light and air, the liability to keep arbitrator, examine witnesses on their own behalf, and the parish, and not on the owner of the house.

the grating and adjoining pavement in repair is cast on the award is against them.

A great many cases have been cited with a view to This action, which was tried by Willes, J., at West-
show that the award so made does not bind them, but minster at the Sittings after Michaelmas Term, 1862,
those cases prove only this; that where a tribunal has was brought by the plaintiff under Lord Campbell's
23. juris:liction and a party protests, he does not Act (9 & 10 Vict. c. 93), for the loss of her husband
waive his right to set aside the proceedings by attend under the following circumstances.
ing and setting up his case. The leading case is Holt The defendant was lessee under the Marquis of
1. Meadoobank, where Lord Ellenborough uses the Salisbury of certain premises in the Waterloo Bridge
expression which has been repeated in succeeding cases, Road. These houses were built over part of the road,
that there the defendant was "tied to the stake and which had been elevated for the purpose of approach-
dragged on to trial.” The distinction between that ing the bridge, and the lower part of each house was
cise and this is, that the defendant there was before lighted by means of an area covered by a grating.
the wrong tribnınal : here, before the right tribunal. Many of these houses were shops, and the public were
There the objection to the proceedings was a sub- in the habit of standing on the grating for the purpose
stantial, here a shadowy and unfair objection. In of looking in at the shop windows.
Lyectt v. Tennant there was a substantial objec It seems in August, 1860, the defendant granted a
tion. In Davies v.

Price the arbitrator had lease of the premises in question to S. A. Jeffs and A. taken into consideration damages, which he was not Jeff's. On the 6th of February, 1862, the Messrs. Jeffs aathorised to do; and in the case before the Lords were adjudicated bankrupts, and at that time they Justices (Haigh v. Haigh) the arbitrator had mis- owed the defendant a large sum for rent. The defendconducted himself.

ant immediately put a distress for rent into some of The defendants have thrown every possible difficulty these houses, which had been sublet by the Jeffs to in the way of a manifestly just claim. I make this tenants who had all paid their rents to the Jeffs, and observation, not as a reason for the decision I have who consequently felt much aggrieved at being disjust pronounced, but with reference to the claim for a trained upon. This led to some disturbances, and the mandamus. The issuing of this writ is within our broker's man going out for a few minutes to get some viscretion, and I am inclined to maintain the opinion refreshment, on his return found the door fastened I expressed during the argument of Mr. Lush, that we against him. He broke in by force, and the tenants might, bad we thought fit, have afforded him another commenced throwing the furniture out of window to

prevent its being seized. This caused a large crowd * Erle, C.J., and Williams, J., were sitting in the Court of

to assemble outside the house, and a great number of
persons were standing on the grating.

Criminal Appeal

way ?

The deceased, passing by at the time, and being the deceased ; and, 4th, or why there should not be a beckoned to by a friend of his, who lived in one of the new trial, on the ground that the verdict was against houses, crossed over to speak to him; he had scarcely evidence. stepped on the grating when it gave way, and he, with nearly twenty other persons, were precipitated a

12 FEB., 8 MAY, 1863. distance of about thirty feet; he was carried to St.

Coleridge, Q.C., and J. Martin, showcd cause, and Thomas's Hospital, and died the next day.

Lush, Q.C., supported the rule.
On this state of facts the present action was brought.
There was evidence at the trial that the parish autho- The following cases were cited :-
rities had given the defendant notice that the gratings

Salmon v. Bensley, Ry. & M. 189; were in an unsafe state. It also appeared, that the

Regina v. Pulley, 1 Ad. & E. 822 ; Jeffs took the premises on a repairing lease, but

Rich v. Basterfield, 4 C. B. 733 ; it was not shown what, if any, repairs were done by

Todd y. Flight, 30 L. J. C. P. 21 ; them. The learned Judge left several questions to the Bishop v. Trustees of Belford Charity, 29 L. J. jury, which, with their answers, are subjoined here :

Q. B. 53; 1st. Whether there was a nuisance, causing danger Fisher v. Prowse, and Cooper v. Walker, 2 B. & S. to persons lawfully using the highway, even considered

770 ; 8. c. 31 L. J. Q. B. 212; as bounded by the retaining wall ?

Barnes v. Ward, 9 C. B. 392; Answer. -Yes.

Regina v. Watts, 1 Salk. 357 ; 2nd. Whether there was a nuisance, causing danger

Hoursell v. Smith, 7 C. B. (N. S.) 731 ; to persons lawfully passing from the highway to the Corby v. Hill, 4 C. B. (N. S.) 556 ; houses?

Bolch v. Smith, 7 H. & N. 736 ; Answer. ---Yes.

Le Neve v. Vestry of Mile End Old Town, 8 El. & 3rd. Whether the place was in a reasonably fit state,

Bl. 1054 ; having regard to the safety of persons using the high

Bayley v. Wolverhampton Waterworks Company,

6 H. & N. 241 ; Answer. - No.

Sir John Lade v. Shepherd, 2 Stra. 1004 ; 4th. Whether in a reasonably fit state, having Cornwell v. Commissioners of Severs, 10 Excl. regard to the safety of persons going to and from the

771 ; houses ?

Roberts v. Hunt, 15 Q. B. 17; Answer.--No.

Hurdcastle v. South Yorkshire Railway Company, 5th. Whether, in a reasonably fit state for persons

32 L. T. 297 ; to stand or walk upon in any sense ?

Brooks v. Copeland, 1 Esp. 203 ; Answer.-Not in the sense of a crowd always liable

Coupland v. Hardingham, 3 Camp. 398 ; to be gathered together when used as a public highway.

Bateman v. Bluck, 21 L. J. Q. B. 406. 6th. Was the accident occasioned by an ordinary

The 5 & 6 Will. 4, c. 50, s. 23, was also alluded to. crowd, or by the improper state of the flagging, or by

Cur. adv, rult.

16 Nov. 1863. both conjoined ?

ERLE, C.J., now read the judgment of the Court, to Answer. -By both. 7th. Whether the deceased was guilty of any negli- the effect that, on the facts of the case, the liability to

repair was on the parish, and not on the defendant ; gence or misconduct contributing to the accident ?

and that, therefore, the rule to enter a nonsuit must Answer.- No.

8th. Was he, when he fell, lawfully using the place be absolute. l'isher v. Prowse was mentioned as a to get from the road to the house ?

leading case, which explained many others.

Rule absolute to enter a nonguil. Answer. -Yes. 9th. Was it a public highway ? Answer. - Used as such by dedication.

C. P.

BAIRD V. WILLIAMSON. 10th. Do you find for the plaintiff or defendant ? Answer.–For the plaintiff.

VinesFlow of Water-Nuisance. The remaining questions merely related to the amount and distribution of the damages.

The plaintiff's and defendant's mines adjoined, and

water flowed from the one into the other :12 JAN. 1863.

Held, that the defendant was not liable for later that Lush, Q.C., obtained a rule for a nousuit, on the naturally floved from his mine into that of the plaintiri, grounds-1st, that, on the finding of the jury that the nor for water which in the usual course of working locus in quo was a public highway, the liability to flowel from one of the defendant's mines into the other, repair was on the parish ; 2nd, that the obligation to and thence into the plaintiff's; but that he was not at repair, if not on the parish, was on the lessees ; 3rd, liberty to pump water up from one of his mines into the hat the accident was occasioned by the negligencc of other, so as to increase the flow into the plaintiff's mine.

9, 14 Nov. 1863. }

This was an action brought by the plaintiff, owner receive through No. 1 more water than that which of a mine, against the defendant, owner of another flowed from the works therein, and might maintain his mine, for allowing water to flow from his mine into the action in respect of the water so flowing from seam plaintiff's. There were several counts in the declara- No. 2. But on this point we think the plaintiff fails. The tion, several pleas, a new assignment, and several pleas owner of the higher mine has a right to work the higher to the new assignment.

inine in the usual and proper manner, for the purpose Demurrers, and cross-demurrers.

of getting out any quantity of minerals from any part

of the mine; and he is not liable for any water which Gray, Q.C., argued for the plaintiffs, and

flows by gravitation from the works so constructed. Henry James for the defendant.

We think the law was correctly laid down to that effect The cases cited were,

in Smith v. Kenrick. If this cut had been made for Smith v. Kenrick, 7 C. B. 515 ;

the purpose of draining water into the plaintiff's mine, Chasc more v. Richards, 29 L. J. Ex. 81.

which would not otherwise have arrived there, and not Youl on Waste was also frequently referred to. The for the purpose above described, we consider the action arguments did not turn on the pleadings, but on the would lie. It appears in Smith v. Kenrick, where the fau ts of the case, which will sufficiently appear from barrier of the lower mine had been wrongfully pierced the judgment.

for air-holes at the lower boundary by the former

occupier of the upper mine, that the subsequent occu16 Nov. 1863.

pier of the upper mine had no right to make an Erle, C.J., now read the judgment of the Court obstruction for the purpose of turning some of the (Erle, C.J., Williams, Byles, and Keating, JJ.). water through those openings.

EKLE, C. J.-In this case the plaintiff complains of By paying money into Court in an action for that the flow of water into his mine from the defendant's wrong, he admitted that his exemption from the inine. The defence was that, the flow arose from liability was confined to the water which flowed by the mining work carried on with due skill, and in a custo- laws of nature into the plaintiff's mine for the purpose mary and proper manner. As the complaint related of getting the minerals. The plaintiff further comto three kinds of foreign water, the questions raised plained of foreign water which flowed into his mine. may be better understood by a short description of the This water is alleged in the pleadings to be raised by local relation of the two properties agreed to be the pumping to a level high enough for such water flowing subject of the pleadings. The two mines adjoin, the away. The learned counsel described the pumping to defendant's being the upper, and the plaintiff's the be for the purpose of getting other minerals which lower mine. In each mine there were two seains of

were lying deeper than the two seams above-mentioned, iron-stone distant a few fathoms from each other ; 1 and the pump was so placed that a cut led therefrom each seam cropped out on the surface of the defendant's to the head of the cut above-mentioned, at such a level land, and extended in a parallel dip down through the as that the water from the pumping flowed down the defendant's land. Each party had worked out that por- two cuts into the seam No. 1, and so on into the tion of the seam of iron-stone which we may call No. 1, plaintiff's mine. In respect of this water we think and the plaintiff had left no barrier to keep back the that the action lies. The defendant, as the occupier water flowing down from the defendant's works in that of the mine, has no right to be an active agent in seam. And of this water the plaintiff did not complain, it sending water to the lower mine. The plaintiff as being clear from the case of Smith v. Kenrick (7 C. B. occupier of the lower mine is subject to no servitude 515), that no such complaint could be sustained. In of receiving water conducted by means of the upper order to get the minerals in the seam, which we may call mine. Each mine owner has all the rights of property No. 2, the defendant made cut or passage from the in his own mine; amongst them the right to get all first seam to the second seam, so constructed as to be the minerals, provided he works with skill in the on an incline from a part of the seam No. 2, to a part usual manner. And if while the occupier of the higher of the seam No. 1. And although No. 2 lay under mine exercises that right, nature causes the water to No. 1, yet the head of the cut in No. 2 was at a liigher flow into the lower mine, he is not responsible for this level than the mouth of the cut in No. 1. This cut operation of nature. If the occupier of the lower was made in the usual course of skilful mining, for the mine intends to guard against this operation, he must purpose of getting the minerals. The defendant's leave a barrier in the upper part of the mine to pen counsel explained it to be for the purpose of carrying the back the water of his higher neighbour. The law minerals from the sean No. 2, down the cut to the imposing the regulations for the enjoyment of conseam No. 1, and down that seam to the shaft, so as to flicting interests does not authorise the occupier of the be raised to the surface. While the cut effected this higher mine to interfere with the gravitation of water, so Service, at the same time the water from the works

as to make it more injurious to the occupier of the in No. 2 flowed through it into No. 1, and so on into lower mine. This appears to be the law. For au ty the plaintif's mine. The complaint of the plaintiff was we refer to the case of Smith v. Kenrick; also to the of this water. He contended that he was not obliged to questions which were left to the jury in the case of

Acton v. Blundell (12 M. & W. 324), and judgment is The society could enter and take possession on to be entered accordingly. There will be judgment default. entered for the plaintiff on the demurrer to the plea to [BYLES, J.-Yes, but he could redeem.] the new assignment, and judgment for the defendant on the demurrer to the other pleas.

Erle, C.J.-I am of opinion that this case was Judgment accordingly. rightly decided by the revising barrister.

The difficulty arises from the case of Copland v.

Bartlett. In that case, as in this, the payments were
C. P.

ROBINSON, Appellant, v.

to be made monthly, and the annual instalments were 17 Nov, 1863. DUNKLEY, Respondent.

greater than the annual value. It did not appear, REGISTRATION APPEAL.

however, in that case what the respondent had paid, Freehold of Annual Value of 40s.Right of and the Court seemed to think that if the revising

barrister had found that the interest of the claimant Voting-Charge on Land.

was greater than 40s. by the year, they would have A was owner of a share in a building society, the sustained the vote, but, having left the matter in price of which share was 731. when fully paid up. doubt, they decided against it. In this case, the The land, in respect of the share, was mortgaged by A respondent was to pay 731., and when he had paid to the society, who were to receive from A four pounds that, he was the owner of a legal estate of the value annually until the whole amount of 731. was paid. On of 31. per annum. He had paid 711. by the 31st of the 31st January, 1863, 711. had been paid, and thc January, and the question was, was he then a freeannual value of the land was 31. .

holder ? The revising barrister found that he was, Held, that A had on the said 31st January an estate and we sustain his decision. of free land, worth forty shillings by the year above all charges within 8 Hen. 6, c. 7, and was therefore entitled

WILLIAMS, J., concurred, pointing out that in to vote.

Copland r. Bartlett the counsel for the claimant har. Copland 1. Bartlett, 18 L. J. C. P. 50, distin. | ing refused to amend the statement in the case as to quished.

the annual value, it might be presumed that the

annual value was under 40s. This was a case stated by the revising barrister for the southern division of Northamptonshire. The Byles and KEATING, JJ., concurred. respondent was a member of a building society, which

Decision affirmed. had several years ago advanced him, under their rules, 731. for the purchase of a small freehold, the annual value of which was 31. The respondent mortgaged the

Ex. freehold to the society, to secure the money due, and


10 Nov. 1863. the freehold was made subject to a charge of 41. per annum, which was to be paid in monthly instalments T'respass-Cutting down Timber-Equitable in discharge of principal and interest. The case found

Plea. that up to the 31st of January last, the respondent had repaid 711. and all interest due in respect of the To a declaration for breaking and entering into the money advanced; and the remaining 40s. he repaid by plaintiff's land and closes, and cutting down and carrijJuly. He had never failed in making his payments, ing away timber growing thercon, the defendant plcaded, but had he failed, the society might have entered and for a defence on equitable grounds, that the timber grow. taken possession. The revising barrister found that | ing on the land in question had been sold to the defendant the respondent possessed a freehold of value greater by the previous owner of the land, who had devised the than 40s., and allowed the vote.

land to the plaintif, and that it had been agreed at the

time of the sale that the defendant should be at liberty to Markham, for the appellant, put in an affidavit of come on to the land from time to time to cut down and service of notice of appeal, the respondent not having carry away the timber, paying each time for so much appeared. The learned counsel then contended that the of the timber as he took. That the defendant had accordannual value of the freehold being only 31., while the ingly entered upon the land during the lifetime of the charge on it was 41. per annum, the respondent had plaintiff's testator and cut down, carried away, and no vote on the 31st January : the respondent not hav. paid for a portion of the timber; and that his doing so ing, by the 31st of January, disencumbered his estate, after the death of the testator was the trespass comit remained charged within the principle of the deci

plained of : sion in

Held, that this plea was bad, as a Court of Equity, Copland v. Bartlett, 18 L. J. C. P. 50 ;

in order to decide the case, would have to make the supported in

testator's personal representatives parties to the suit, Lee v. Hutchinson, 20 L. J. C. P. 4;

and would compel the defendant to pay for the timber Beamish v. The Oversecrs of Stoke, 21 L. J. C. P. 9. he took; and that a Court of Common Law, under


The proper

these circumstances, could not do complete and final before the conimitting of the said trespasses, the said justice bel ween the parties.

T. Wakley, being so possessed and seised as aforesaid,

departed this life, without having in any way revoked or DECLARATION for breaking and entering into the altered the said devise to the plaintiff. And that afterdefendant's land, and cutting down, and carrying away wards, and after the death of the said T. Wakley, and trees, underwood, and ornamental timber growing within a reasonable time in that behalf, he, the defendthereon.

ant, duly, and under and by virtue of the said agreeFourth plea, for a defence on equitable grounds, ment and bargain and sale, entered into and upon alleging, that before and at the time of making the the said land, &c., for the purpose of cutting down agreement, bargain, and sale thereinafter mentioned, and carrying away, and did then and there duly, and one Thomas Wakley, since deceased, was possessed according to the terms of the said agreement, and and seised in his demesne as of fee of and in the said within a reasonable time in that behalf, cut down and lands and closes respectively in the declaration men carry away the said trees, &c., the same respectively tioned. And that afterwards and before the com forming part and parcel of the trees, &c., so bargained mitting of the said alleged trespasses in the declaration and sold by the said T. Wakley in his lifetime as aforementioned, the said T. Wakley being so possessed and said, which were the alleged trespasses in the declara. seised as aforesaid, by and under a certain agreement tion mentioned. then made, bargained and sold to the defendant Demurrer to the fourth plen, and joinder in demurrer. certain trees, underwood, and ornamental timber, then growing in and upon the said land and closes in Hayes, Serjt., in support of demurrer. the said declaration mentioned, including, amongst The plea is bad. This is the sale of an interest in others, the said trees, underwood, and ornamental land within the 4th section of the Statute of Frauds, timber in the declaration respectively mentioned, upon and should, therefore, have been in writing. If Equity the terms, that, in the event of the said land and relieved the defendant on the ground that there had closes being sold by the said T. Wakley within a been a part performance of the contract, it would tertain time, then in that behalf named (as he, the be necessary to bring before the Court all parties said Wakley was then desirous to do), the said trees, interested in the case, including the personal repreanderwood, and ornamental timber so bargained and sentatives of T. Wakley, and it is only in this way sold as aforesaid, should be cut down and carried that complete justice could be done. away and paid for by the defendant within twelve therefore, would have been for the defendant months from the date of the said agreement, and that, to have filed a bill in Equity for specific performance in the event of the said T. Wakley failing to sell the of the contract, bringing all the necessary parties said land and closes as aforesaid, then that the de- / before the Court. This Court will only allow equitable fendant night, from time to time, as to him, the defences in cases where it can do complete justice defendant, should seem fit and convenient for that between the parties, purpose, enter into and upon the said land, &c., Mines Royal Societies v. Magnay, 10 Exch. 489 ; respectively in the declaration mentioned, for the here that is out of the power of the Court, and the purpose of cutting down and carrying away such of defendant's equitable plea is therefore bad. the said trees, &c., as he, the defendant, might think ft, and that he, the defendant, should pay the said Turner, in support of the plea. T. Wakley, his executors and administrators, a cer The plea discloses a good equitable defonce. Hud tain price or sum, at and after a certain rate then in there been a legal conveyance of the timber, that would that behalf agreed upon between them, for and in have carried with it an irrevocable licence to come respect of the said trees, &c., so from time to time cut on to the land and take it, and the defendant would down and carried away as aforesaid.

have had a good defence to this action at Law.

See The plea then averred that the said T. Wakley failed the judgment of Vaughan, C.J., quoted by the Court to sell the said land within the time named, and that of Exchequer in afterwards, in the lifetime of the said T. Wakley, the Wood v. Leadbitter, 13 M. & W. 838. defendant, under the said agreement, entered upon the Here there was no legal conveyance of the timber said land, and cut down and carried away divers of within the Statute of Frauds, but there was part the said trees, &c., so bargained and sold as afore- perforinance of the contract by the defendant coming aid other than the said trees, &c., in the declaration on the land, cutting down the timber, carrying it mentioned, and duly paid for the same according to away, and paying for it, which renders the contract the said agreement. And the plea further averred that valid in Equity. the said T. Wakley, being so possessed and seised of The defendant has made a contract for which he is the land as aforesaid, duly made and published his last liable either to the executors or the heir of the testator, will and testament, and thereby gave and devised the and he seeks to be enabled to carry it out. The part mid lands, &c., respectively in the said declaration performance makes the contract valid in Equity, mentioned, to the plaintiff, and that afterwards and 2 Story on Equity Jurisprudence, par. 761.


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