case of irregularity: a defect in form, rather than in opportunity of arguing against the issuing of this writ. substance, 2 Chitty's Archbold, 1458, 1460, (11th ed.) On the analogy of the practice under the Common Law Procedure Act, 1854, by which the Judges constantly enlarge time in references, though the time has been limited, we say that the arbitrator here could have enlarged the time after the time fixed had elapsed. As to the writ of mandamus, the defendants do not deny that there is no other remedy open, and section 89 of the Public Health Act expressly allows retrospective rates in certain cases. BYLES, J.-I am of opinion that this case should be decided for the plaintiff. It has been said that an enlargement of the time for making the award must be made within twenty-one days of the appointment of the arbitrator, and an objection was made, not to the jurisdiction of the arbitrator, but that he had not said to himself in the quiet of his own chamber,-for it goes to that extent "I enlarge the award." The defendants accordingly protested against the proceedings, and in the protest they say, in effect, "If your award is for us we will avail ourselves of it; if against us, we will upset it." They appear, cross-examine, address the arbitrator, examine witnesses on their own behalf, and the award is against them. A great many cases have been cited with a view to show that the award so made does not bind them, but those cases prove only this; that where a tribunal has not jurisdiction and a party protests, he does not waive his right to set aside the proceedings by attending and setting up his case. The leading case is Holt v. Meadowbank, where Lord Ellenborough uses the expression which has been repeated in succeeding cases, that there the defendant was "tied to the stake and dragged on to trial." The distinction between that case and this is, that the defendant there was before the wrong tribunal: here, before the right tribunal. There the objection to the proceedings was a substantial, here a shadowy and unfair objection. In Lycett v. Tennant there was a substantial objection. In Davies v. Price the arbitrator had taken into consideration damages, which he was not authorised to do; and in the case before the Lords Justices (Haigh v. Haigh) the arbitrator had misconducted himself. The defendants have thrown every possible difficulty in the way of a manifestly just claim. I make this observation, not as a reason for the decision I have just pronounced, but with reference to the claim for a mandamus. The issuing of this writ is within our discretion, and I am inclined to maintain the opinion I expressed during the argument of Mr. Lush, that we might, had we thought fit, have afforded him another * Erle, C.J., and Williams, J., were sitting in the Court of Criminal Appeal. However, I am clear that, substantially, the plaintiff has no other remedy, and that if we were to withhold the issuing of the writ now, we should withhold from the plaintiff the means of satisfying his claim. I KEATING, J.-I agree, for the same reasons. think the distinction pointed out by my brother Byles is a valid distinction. The case of Davies v. Price I look upon as rather an authority in the plaintiff's favour. The declaration there was on the express submission; and Crompton, J., appears to pronounce his opinion on the effect of the protest with hesitation. It seems to me a contradiction in terms that a party protesting should have the option claimed here by the defendants. I agree that a mandamus should go. C. P. Judgment for the plaintiff. ROBBINS, Administratrix, v. JONES. 12 JAN., 12 FEB., 8 MAY, 16 Nov., 1863. Highway-Area Grating-Liability to Repair. When the area of a house extends under a path by the side of a street, and is covered by a grating for the purpose of admitting light and air, the liability to keep the grating and adjoining pavement in repair is cast on the parish, and not on the owner of the house. This action, which was tried by Willes, J., at Westminster at the Sittings after Michaelmas Term, 1862, was brought by the plaintiff under Lord Campbell's Act (9 & 10 Vict. c. 93), for the loss of her husband under the following circumstances. The defendant was lessee under the Marquis of Salisbury of certain premises in the Waterloo Bridge Road. These houses were built over part of the road, which had been elevated for the purpose of approaching the bridge, and the lower part of each house was lighted by means of an area covered by a grating. Many of these houses were shops, and the public were in the habit of standing on the grating for the purpose of looking in at the shop windows. It seems in August, 1860, the defendant granted a lease of the premises in question to S. A. Jeffs and A. Jeffs. On the 6th of February, 1862, the Messrs. Jeff's were adjudicated bankrupts, and at that time they owed the defendant a large sum for rent. The defendant immediately put a distress for rent into some of these houses, which had been sublet by the Jeffs to tenants who had all paid their rents to the Jeffs, and who consequently felt much aggrieved at being distrained upon. This led to some disturbances, and the broker's man going out for a few minutes to get some refreshment, on his return found the door fastened against him. He broke in by force, and the tenants commenced throwing the furniture out of window to prevent its being seized. This caused a large crowd to assemble outside the house, and a great number of persons were standing on the grating. The deceased, passing by at the time, and being beckoned to by a friend of his, who lived in one of the houses, crossed over to speak to him; he had scarcely stepped on the grating when it gave way, and he, with nearly twenty other persons, were precipitated a distance of about thirty feet; he was carried to St. Thomas's Hospital, and died the next day. On this state of facts the present action was brought. There was evidence at the trial that the parish authorities had given the defendant notice that the gratings were in an unsafe state. It also appeared, that the Jeff's took the premises on a repairing lease, but it was not shown what, if any, repairs were done by them. The learned Judge left several questions to the jury, which, with their answers, are subjoined here: 1st. Whether there was a nuisance, causing danger to persons lawfully using the highway, even considered as bounded by the retaining wall? the deceased; and, 4th, or why there should not be a new trial, on the ground that the verdict was against evidence. 12 FEB., 8 MAY, 1863. Coleridge, Q.C., and J. Martin, showed cause, and Lush, Q.C., supported the rule. : The following cases were cited :- Fisher v. Prowse, and Cooper v. Walker, 2 B. & S. Hounsell v. Smith, 7 C. B. (N. s.) 731; Corby v. Hill, 4 C. B. (N. s.) 556; Le Neve v. Vestry of Mile End Old Town, 8 El. & Bayley v. Wolverhampton Waterworks Company, 6 H. & N. 241; Sir John Lade v. Shepherd, 2 Stra. 1004; Cornwell v. Commissioners of Sewers, 10 Excl. 771; Roberts v. Hunt, 15 Q. B. 17; Hardcastle v. South Yorkshire Railway Company, 32 L. T. 297; Brooks v. Copeland, 1 Esp. 203; Coupland v. Hardinghum, 3 Camp. 398; Bateman v. Bluck, 21 L. J. Q. B. 406. The 5 & 6 Will. 4, c. 50, s. 23, was also alluded to. Cur. adv. rull. This was an action brought by the plaintiff, owner of a mine, against the defendant, owner of another mine, for allowing water to flow from his mine into the plaintiff's. There were several counts in the declaration, several pleas, a new assignment, and several pleas to the new assignment. Demurrers, and cross-demurrers. Gray, Q.C., argued for the plaintiffs, and Henry James for the defendant. The cases cited were, Smith v. Kenrick, 7 C. B. 515; Chasemore v. Richards, 29 L. J. Ex. 81. Yool on Waste was also frequently referred to. The arguments did not turn on the pleadings, but on the facts of the case, which will sufficiently appear from the judgment. 16 Nov. 1863. ERLE, C.J., now read the judgment of the Court. (Erle, C.J., Williams, Byles, and Keating, JJ.). receive through No. 1 more water than that which ERLE, 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 mine. 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 seams of were lying deeper than the two seams above-mentioned, iron-stone distant a few fathoms from each other; 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 a 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 undermine exercises that right, nature causes the water to No. 1, yet the head of the cut in No. 2 was at a higher level than the mouth of the cut in No. 1. This cut was made in the usual course of skilful mining, for the purpose of getting the minerals. The defendant's counsel explained it to be for the purpose of carrying the minerals from the seam No. 2, down the cut to the seam No. 1, and down that seam to the shaft, so as to be raised to the surface. While the cut effected this service, at the same time the water from the works in No. 2 flowed through it into No. 1, and so on into the plaintiff's mine. The complaint of the plaintiff was of this water. He contended that he was not obliged to flow into the lower mine, he is not responsible for this operation of nature. If the occupier of the lower mine intends to guard against this operation, he must leave a barrier in the upper part of the mine to pen back the water of his higher neighbour. The law imposing the regulations for the enjoyment of conflicting interests does not authorise the occupier of the higher mine to interfere with the gravitation of water, so as to make it more injurious to the occupier of the lower mine. This appears to be the law. For authority we refer to the case of Smith v. Kenrick; also to the questions which were left to the jury in the case of The society could enter and take possession on default. [BYLES, J.-Yes, but he could redeem.] ERLE, C.J.-I am of opinion that this case was 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 to be made monthly, and the annual instalments were greater than the annual value. It did not appear, 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 Voting-Charge on Land. A was owner of a share in a building society, the price of which share was 731. when fully paid up. The land, in respect of the share, was mortgaged by A to the society, who were to receive from A four pounds annually until the whole amount of 731. was paid. On the 31st January, 1863, 711. had been paid, and the annual value of the land was 31. : Held, that A had on the said 31st January an estate of free land, worth forty shillings by the year above all charges within 8 Hen. 6, c. 7, and was therefore entitled to vote. barrister had found that the interest of the claimant was greater than 40s. by the year, they would have sustained the vote, but, having left the matter in doubt, they decided against it. In this case, the respondent was to pay 737., and when he had paid that, he was the owner of a legal estate of the value of 31. per annum. He had paid 717. by the 31st of January, and the question was, was he then a freeholder? The revising barrister found that he was, and we sustain his decision. WILLIAMS, J., concurred, pointing out that in Copland v. Bartlett the counsel for the claimant hav Copland v. Bartlett, 18 L. J. C. P. 50, distin- ing refused to amend the statement in the case as to guished. the annual value, it might be presumed that the annual value was under 40s. The This was a case stated by the revising barrister for the southern division of Northamptonshire. respondent was a member of a building society, which 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 freehold to the society, to secure the money due, and the freehold was made subject to a charge of 41. per annum, which was to be paid in monthly instalments in discharge of principal and interest. The case found that up to the 31st of January last, the respondent had repaid 717. and all interest due in respect of the money advanced; and the remaining 40s. he repaid by July. He had never failed in making his payments, but had he failed, the society might have entered and taken possession. The revising barrister found that the respondent possessed a freehold of value greater than 40s., and allowed the vote. To a declaration for breaking and entering into the plaintiff's land and closes, and cutting down and carrying away timber growing thereon, the defendant pleaded, for a defence on equitable grounds, that the timber growing on the land in question had been sold to the defendant by the previous owner of the land, who had devised the land to the plaintiff, 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 37., while the|ingly entered upon the land during the lifetime of the charge on it was 47. 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 Copland v. Bartlett, 18 L. J. C. P. 50 ; supported in Lee v. Hutchinson, 20 L. J. C. P. 4; Beamish v. The Overseers of Stoke, 21 L. J. C. P. 9. Held, that this plea was bad, as a Court of Equity, in order to decide the case, would have to make the testator's personal representatives parties to the suit, and would compel the defendant to pay for the timber he took; and that a Court of Common Law, under these circumstances, could not do complete and final before the committing of the said trespasses, the said justice between the parties. DECLARATION for breaking and entering into the defendant's land, and cutting down, and carrying away trees, underwood, and ornamental timber growing thereon. Fourth plea, for a defence on equitable grounds, alleging, that before and at the time of making the agreement, bargain, and sale thereinafter mentioned, one Thomas Wakley, since deceased, was possessed and seised in his demesne as of fee of and in the said lands and closes respectively in the declaration mentioned. And that afterwards and before the committing of the said alleged trespasses in the declaration mentioned, the said T. Wakley being so possessed and seised as aforesaid, by and under a certain agreement then made, bargained and sold to the defendant certain trees, underwood, and ornamental timber, then growing in and upon the said land and closes in the said declaration mentioned, including, amongst others, the said trees, underwood, and ornamental timber in the declaration respectively mentioned, upon the terms, that, in the event of the said land and closes being sold by the said T. Wakley within a certain time, then in that behalf named [as he, the said Wakley was then desirous to do], the said trees, underwood, and ornamental timber so bargained and sold as aforesaid, should be cut down and carried away and paid for by the defendant within twelve months from the date of the said agreement, and that, in the event of the said T. Wakley failing to sell the said land and closes as aforesaid, then that the defendant might, from time to time, as to him, the defendant, should seem fit and convenient for that purpose, enter into and upon the said land, &c., respectively in the declaration mentioned, for the purpose of cutting down and carrying away such of the said trees, &c., as he, the defendant, might think fit, and that he, the defendant, should pay the said T. Wakley, his executors and administrators, a certain price or sum, at and after a certain rate then in that behalf agreed upon between them, for and in respect of the said trees, &c., so from time to time cut down and carried away as aforesaid. The plea then averred that the said T. Wakley failed to sell the said land within the time named, and that afterwards, in the lifetime of the said T. Wakley, the defendant, under the said agreement, entered upon the said land, and cut down and carried away divers of the said trees, &c., so bargained and sold as aforesaid other than the said trees, &c., in the declaration mentioned, and duly paid for the same according to the said agreement. And the plea further averred that the said T. Wakley, being so possessed and seised of the land as aforesaid, duly made and published his last will and testament, and thereby gave and devised the said lands, &c., respectively in the said declaration mentioned, to the plaintiff, and that afterwards and T. Wakley, being so possessed and seised as aforesaid, departed this life, without having in any way revoked or altered the said devise to the plaintiff. And that afterwards, and after the death of the said T. Wakley, and within a reasonable time in that behalf, he, the defendant, duly, and under and by virtue of the said agreement and bargain and sale, entered into and upon the said land, &c., for the purpose of cutting down and carrying away, and did then and there duly, and according to the terms of the said agreement, and within a reasonable time in that behalf, cut down and carry away the said trees, &c., the same respectively forming part and parcel of the trees, &c., so bargained and sold by the said T. Wakley in his lifetime as aforesaid, which were the alleged trespasses in the declaration mentioned. Demurrer to the fourth plea, and joinder in demurrer. Hayes, Serjt., in support of demurrer. The plea is bad. This is the sale of an interest in land within the 4th section of the Statute of Frauds, and should, therefore, have been in writing. If Equity relieved the defendant on the ground that there had been a part performance of the contract, it would be necessary to bring before the Court all parties interested in the case, including the personal representatives of T. Wakley, and it is only in this way that complete justice could be done. The proper course, therefore, would have been for the defendant to have filed a bill in Equity for specific performance of the contract, bringing all the necessary parties before the Court. This Court will only allow equitable defences in cases where it can do complete justice between the parties, Mines Royal Societies v. Magnay, 10 Exch. 489; here that is out of the power of the Court, and the defendant's equitable plea is therefore bad. Turner, in support of the plea. The plea discloses a good equitable defence. Had there been a legal conveyance of the timber, that would have carried with it an irrevocable licence to come on to the land and take it, and the defendant would have had a good defence to this action at Law. See the judgment of Vaughan, C.J., quoted by the Court of Exchequer in Wood v. Leadbitter, 13 M. & W. 838. Here there was no legal conveyance of the timber within the Statute of Frauds, but there was part performance of the contract by the defendant coming on the land, cutting down the timber, carrying it away, and paying for it, which renders the contract valid in Equity. The defendant has made a contract for which he is liable either to the executors or the heir of the testator, and he seeks to be enabled to carry it out. The part performance makes the contract valid in Equity, 2 Story on Equity Jurisprudence, par. 761. |