Isherwood v. Oldknow, 3 M. & S., 382; and 2 Sugden on Powers, 472 (6th ed.), were also cited. Raymond (Chambers, Q. C., with him), in support of the rule. The lease was a good execution of the power; for, according to the very letter of the deed, this was a repairing lease; and, moreover, before the expiration of the lease, a large sum of money would necessarily have to be laid out on the premises. The plaintiffs would have the claim in the will read as "building and repairing." Isherwood v. Oldknow, ubi supra, is, if anything, in our favour. I rely upon the language of the power. POLLOCK, C.B.-This rule should be dischargedas to the mere question of the length of the lease, I say nothing. The power given was either to lease for twenty-one years at a rack-rent, or for sixty-one years-or I will assume even for a shorter period-on building or repairing leases, and I am of opinion that this lease is not valid within the terms of that power. CHANNELL, B.—I am also of the same opinion. The lease being for more than twenty-one years, must, to be within the power, be a building or repairing lease. I give no opinion about the use of the disjunctive 'or' in the power. Looking, however, at the terms of the lease and at the extrinsic circumstances, I do not consider this a good repairing lease. PIGOTT, B.-Looking at the language used in the will, the words must have meant something more than the ordinary covenant contained in farming and other leases. Held, upon demurrer, a good replication; it being for the defendant to show that he had, in abating the nuisance, done only what was necessary. DEMURRER.-Second count of declaration.—That before the committing of the grievances hereinafter mentioned, they the plaintiff's being possessed of a certain colliery, did by the licence of the owner and occupier of certain land near the said colliery, make a watercourse in the said land for carrying away the water by them from time to time pumped from the said colliery, and from thence until and at the time of the committing of the grievance hereinafter mentioned, during all which period they were possessed of the said colliery, they the plaintiffs by the licence, &c. of the said owner and occupier of the said land, enjoyed the advantage of having the water so by them pumped, flow away from the said colliery along the said watercourse, and the plaintiffs say that the said licence and consent to enjoy the said advantage, and their said possession of the said colliery continued till the commencement of this suit, and still do continue, and the said licence, consent, and advantage, were of great value to the plaintiffs, and the plaintiffs say that the defendant knowing that the plaintiffs were enjoying the advantage aforesaid, wrongfully and wilfully obstructed the said watercourse, and thereby prevented the water from flowing along the same, away from the said colliery, by means whereof the [plaintiffs sustain, and will sustain, damage, &c. Fourth plea to the said second count.-That before and at the time when the plaintiffs made the said watercourse as in the second count mentioned, and from thence until at and after the committing by the defendant of the alleged grievances in the same count mentioned the defendant was the occupier, and was lawfully possessed of the said land near to the said colliery in which the plaintiffs made the said watercourse as in the second count mentioned, and the plaintiff's made the said watercourse in the defendant's said land with the leave and licence of the defendant, and with such leave and licence used the same until the defendant afterwards revoked such leave and licence, and gave notice to the plaintiffs of such revocation, and because the plaintiffs continued to use such watercourse, and to send the water down the same after such revocaRule discharged. tion, and notice thereof against the will of the defendant, the defendant obstructed the same as in the said second count mentioned. BRAMWELL, B.-I agree with the rest of the Court. I think the lease cannot be supported as a good repairing lease, and independently of authority, this is the common sense view of the case. The reference to Sugden on Powers, ubi supra, confirms this opinion. It is said, however, that this is good as a repairing lease when the state of the premises is considered, but it is a sufficient answer to this to say, that the facts do not warrant such a conclusion. Under a repairing lease a man would have to do more than he would be hable for under the terms of such a lease as the present. Ex. 16 Nov. 1863. ROSE. } ROBERTS and Another v. Watercourse-Nuisance-Abatement - Excess of damage. Where, in an action for obstructing a watercourse on land not the defendant's, the replication set out, that the obstruction, in the place where made, was unnecessary for preventing the evils complained of by the defendant, and was higher up the watercourse than necessary: New assignment to fourth plea.-That plaintiffs sue, not for the obstruction on the defendant's said land of a watercourse on the defendant's land, but for an obstruction on other land than that mentioned in the said fourth plea, and being the land in the second count mentioned, and not being the land of which the defendant was the occupier and possessed, as in the fourth plea mentioned, of a watercourse made on such other land with the licence and consent of William Lowe, the occupier of such other land. Second plea to new assignment.-That, at the time of the committing by the defendant of the alleged grievances in the new assignment mentioned, the defendant was possessed of certain land adjoining to the land in the new assignment called other land, and the said watercourse in and over such other land was so constructed that the water passing in and along the same was wrongfully discharged from the same on to the said adjoining land of the defendant, and without entering on the said other land in the new assignment mentioned, and obstructing the said watercourse on such land, the defendant could not prevent the water from the watercourse from being discharged therefrom and coming on the land of the defendant in this plea mentioned; wherefore, in order to prevent the said water from the said watercourse from being so discharged, and coming on the land of the defendant, the defendant obstructed on such other land the said watercourse made on such other land as he lawfully might for the cause aforesaid. Second replication to second plea to new assignment. -That the obstruction so made by the defendant at the place where it was made was not necessary for preventing the water from being so discharged from the said watercourse, and coming on the defendant's said land, Gray, Q.C., in support of the demurrer. It was on Lowe's land we were entering, and not on the plaintiffs, and Lowe, if any one, should have brought the action. Assuming that the defendant could obstruct the water at any part, why must he allege that he could not do so at any place other than where he did stop it? The plaintiffs should have alleged that the defendant was damaging Lowe more than was necessary. The defendant was not bound to stop the water-course in the way which would do the plaintiffs the least injury, but in the manner likely to do the owner of the land the least harm, and the replication does not assert this. H. Mathews (Huddlestone, Q. C. with him), in support of the replication. The plaintiffs are as much entitled to their watercourse as Lowe is to his land. Though a man may abate a nuisance on his own land, in such manner as he thinks fit, he must only do what is necessary for that purpose when he enters upon the land of another. [BRAMWELL, B.-Taking the whole declaration, it means that the defendant might have done the acts complained of on Lowe's land, but nearer to his own.] [CHANNELL, B.-The defendant in effect says, that as the defendant knew at the time when he made it; the replication amounts to an informal new assign and the plaintiffs say that the said obstruction was an obstruction made much higher up the said watercourse than the defendant's said land, so as to prevent the water from flowing down a large part of the said watercourse on the said other land where the plaintiffs had such licence and consent, as in the second count mentioned for the flowing thereof; and the plaintiff's say, that the water might have flowed along the said last mentioned part of the said watercourse without being discharged from the said watercourse, and coming on the defendant's said land, or injuring the defendant, and might have been by the defendant lawfully obstructed on the said other land lower down the said watercourse after it had flowed over the last-mentioned part thereof, and nearer to the defendant's said land than the place where he did obstruct it, as the defendant, at the time when he made the said obstruction, well knew; and the plaintiffs say, that if the same had been obstructed lower down the said watercourse on the said other land, and nearer to the defendant's said land as aforesaid, such obstruction would have prevented the water from being discharged from the said watercourse, and coming on the defendant's said land, and would not have caused the damage to the plaintiffs in the second count mentioned; and such obstruction which the defendant so made as aforesaid, was an unnecessary and unreasonable mode of preventing the water from being discharged from the said watercourse, and coming on the defendant's said land, and by reason thereof, did the plaintiffs unnecessary damage. Demurrer to the second replication to the second plea to the new assignment, and thereupon joinder in demurrer. ment.] Gray, Q.C., in reply. It is perfectly consistent with the pleadings, that the defendant made the obstruction in the way least likely to do injury to the owner of the land. POLLOCK, C. B.-The plaintiffs are, in my opinion, entitled to our judgment, though it would have been better had we known somewhat more of the facts. Mr. Gray has, I think, failed in making out his proposition. I cannot enter into the notion that where there is a long line of watercourse, a person may, for the purposes mentioned in the argument, interfere just where he likes. BRAMWELL, B.-I am of the same opinion. It is difficult, however, to divine what the circumstances of the case were. I will assume, however, that the defendant had a right to enter upon the land in question, and will also, for the sake of the argument, agree with Mr. Gray that, in abating the nuisance, the defendant must do so in such a manner as to do the least possible injury both to Lowe and to the plaintiffs. The plaintiff's say by their replication, you did more not having been duly removed from the County Court, and there being no judgment or proceeding in this Court upon which such ca. sa. could lawfully issue. And I further order that no action be brought against the plaintiff or the sheriff in respect of the arrest herein. And I further order that the costs of and incident to the proceedings herein, be paid by the plaintiff's attorney, Hockley Wood." The facts were, that on the 30th of July, the plaintiff recovered against the defendant, in the Westminster County Court, a judgment for 207. 4s., and 57. 5s. costs. On the 4th of August the County Court Judge made an order for the payment of the debt and costs. Thereupon, Wood, as the plaintiff's attorney, took out a judgment summons, on the ground that the defendant was about to leave the country; which was dismissed with costs. On the 7th of August Wood obtained a certificate from the officers of the County Court, and then applied, on affidavit, to Keating, J., into the Queen's Bench, under 19 & 20 Vict. c. 108, for an order for a certiorari to remove the judgment s. 49. This order was dated 8th August. Wood then applied to the County Court officials to know when he could have the certiorari returned, and was to that he could not have it till the middle of September, as it must be signed by the Judge or the Registrar, and both would be out of town till that time. He then took the certiorari, with a minute of the judgment, to the Treasury Office of the Queen's Bench; and one Practice-Judge's Chambers-Costs-Notice in Boddy, acting for the senior officer here, took in the Summons. An order upon an attorney of one of the parties to pay the costs incurred in proceedings in a cause, he not being a party applying to the Court, is bad, if the attorney had no notice in the summons that he would be called upon to pay such costs. Laxton had obtained a rule to show cause why an order of Keating, J., in this cause should not be rescinded or varied as to so much thereof as related to the payment of costs by Mr. Wood, the plaintiff's attorney personally. Temple, Q.C., now showed cause. certiorari and the paper as a matter of course, supfrom the County Court. posing the paper with the certiorari to be the return Thereupon Wood issued a ca. sa., and arrested the defendant. This was on a Saturday; and on Monday, August the 10th, the summons above set out was heard before Keating, J., Wood and defendant's attorney both attending it. The summons was adjourned to the Tuesday, and then adjourned to a later hour the same day; but on neither of these latter occasions did Wood attend. Keating, J., having meanwhile made inquiries of the Master, then made the order set out above. It will be said on the other side that the Judge at The summons upon which Keating, J., made the Chambers had no power to make the order, or that if order was as follows: "Let the plaintiff's attorney or agent ... show cause why the writ of ca. sa. issued herein should not be set aside, and the defendant discharged out of the custody of the Sheriff of Middlesex, the action not having been duly removed from the County Court, and there being no judgment or proceeding in the Court of Queen's Bench upon which such ca. sa. could lawfully issue, and the facts not having been disclosed to the Judge granting the order for the certiorari, and the affidavit for such order being wrongly entitled." The order was "That the writ of ca. sa. issued herein be set aside, and the defendant discharged out of the custody of the Sheriff of Middlesex as to this action, the action he had it was not properly exercised. But the full Court would have had power to make the attorney pay costs; and whatever a Judge at Chambers orders cannot be enforced without making it a rule of Court; and the party thinking himself aggrieved has then an opportunity of being heard. [CROMPTON, J.-But the rule may be made behind the back of the Court.] Still there is an opportunity given of discussing the propriety of the order of the Judge at Chambers. Then, if there was such a power, was it properly exercised? It is conceded that the summons did not call on the attorney to show cause why he should not pay the costs: but the order ought to be supported on the facts as a matter of discretion. The affidavit put into Wood's hands at Chambers sufficiently apprised him of the nature of the imputations thrown upon him. In Reg. v. Borron, 3 B. & Ald. 432, the Court refused an application for a criminal information against a justice; and at the end of his judgment, Abbott, C.J., says: "It is only necessary to add further, that, as the application to this Court appears to be the act of Mr. Charles Pearson, the costs of the rule must be paid by him." [CROMPTON, J.-But here it was an application on a collateral matter, and no warning was given to the attorney. The attorney had no opportunity of saying, I did this under a mistake, and there was nothing to put him on his own personal defence.] Laxton, in support of the rule. The summons did not call on Wood to pay these costs. The person really in the wrong was Boddy. He should have looked at the documents before he gave a certificate. Moreover, a certificate is evidence of the proceedings in the County Court, 9 & 10 Vict. c. 95, s. 111. 24 Nov. 1863. Cur, adv. vult. CROMPTON, J., now delivered judgment.-I have come to the conclusion that the order made on the merits, is perfectly right, whether the attorney merely showed gross ignorance, or something worse. But there is a principle of considerable importance involved, -viz., whether, on this summons, such an order could be properly made. I have consulted the other Judges, and am now still more strongly of opinion than I was yesterday, that the order cannot be supported. It is a general principle, frequently acted on with regard to the decisions of Justices, and to be very strongly maintained, that no person should be injured by a decision without an opportunity of hearing and meeting the charges brought against him. There is another rule as to practice at Chambers, that where it is intended to charge an attorney with misconduct, the application for costs against him should be a part of the summons. In the present case, it was sought to do something more on the summons than the summons called on the party to answer, and the attorney had no notice that any attempt would be made to make him pay the costs. It did not appear that this question ever came before the Judge at Chambers. However he, as I do, entertained a very strong opinion on the merits. He said that he would give judgment next day, and added, very properly, that he should like to consult the Master of the Court, probably with regard to the particular practice as to certiorari. After having seen him, he decided that the attorney should pay the costs. But the attorney did not appear, and there was no discussion before the Judge as to whether he would have to pay the costs; and I must take it on the affidavits that he was never called on to make such an affidavit as he has now made. Consequently the case falls within both the rules I have mentioned above. There are several cases where the attorney was a party to an application for criminal proceedings and has been made to pay costs; but he being the party applying, the Court had jurisdiction over him and could make him pay, as he put himself improperly forward in the nature of a relator. But except in that class of cases I can find no case bearing on the question. There are two ways of proceedings at Chambers, either by summons in the principal matter with notice that the attorney is to pay the costs, or by substantive application that the attorney should pay the costs of the proceedings: and there may also be an application to answer matters on affidavit. Some at all events of those courses will be open to the party here. I am bound to alter so much of the order as directs that the attorney should pay the costs. I cannot alter it so far as to throw the costs on the plaintiff, as I should thereby be falling into the error I am now correcting. Arbitration-Setting aside Award. It is no ground for setting aside the award of an arbitrator, or for sending back to him the matters referred, though the reference is of the cause and all matters in dispute between the parties, that he omitted to take into his consideration a claim of the defendant against the plaintiff, which was not brought under his notice at the hearing of the reference. G. B. Hughes obtained a rule to set aside the award of an arbitrator in this cause on the ground that the award was not final, and left matters in difference between the parties. Murphy showed cause. The misreception complained of was, that the defendant was allowed to give evidence of an alleged promise by the plaintiff's or their agent to put the premises in repair before and at the time of the contract in the declaration admitted, and also of the particular state of repair of the premises at the time of the deraise. The undersheriff had made no note of such objection, and the gentleman who appeared for the defendant stated that none such was made. himself before he had done. The condition and class of the premises were proper to be inquired into, but not their state of repair at the time of the demise. Payne v. Haine, 16 M. & W. 541. CROMPTON, J.-If the under-sheriff told the jury to look at the prior promise, it was a misdirection. But so far from doing that, he sent them back to reconsider their verdict. Ho clearly had the case of Payne v. Haine before his mind, and told them they might look at the age and class of the house. The plaintiff, Beal, was called, and proved that he was co-executor of a testatrix together with the other two plaintiffs, Lewis and Atterbury; that, as such executor, he had come into possession of a probate and certain other papers of the deceased; and that his coexecutor, Lewis, had taken them out of his possession, since when he had not seen them. No application was made to postpone the trial on the ground of the absence of material witnesses. The defendant proved that Lewis had borrowed money of him on the account of himself and Atterbury, and had deposited with defendant the papers in Philbrick. I took the objection myself. Murphy, as to the misdirection. The jury first returned a verdict that considering the state of repair of the premises when the defendant took them, and the promise made that they should be repaired by the plaintiff, they found for the plaintiff, with one farthing damages. The under-sheriff told them he could not take such a verdict, but he should ask them if they found for the plaintiff or for the defendant simply, and if for the plaintiff, with what damages. The jury then found one farthing damages for the plaintiff. Philbrick, in support of the rule. The Judge laid down the law rightly at first, but entirely contradicted On the learned Judge intimating that he would direct a verdict for the defendant, the plaintiff's counsel elected to be nonsuited. Laxton, for the plaintiff, had obtained a rule to set aside the nonsuit, on the ground that the defendant had bribed the plaintiff's witnesses to stay away from the trial: he moved on the joint affidavit of the plaintiffs, Beal and Lewis, in which they stated that Lewis and Atterbury did not appear as witnesses; that they were necessary witnesses; that they received 31. 10s. from the defendant to stay away, from their attorney; and that defendant promised, if they would stay away at the trial, he would withdraw the record in an action which he had brought against them. It also appeared |