mmmk m >b THE LIBRARY OF "HE UNIVERSITY 3F CALIFORNIA LOS ANGELES SCHOOL OF LAW e Property [.OS ANGELES COUNTY L^^^ If found elsewhere than^W^ if Law Library, please or notify Librarian. ^J^T' V Books belou^?© t(Cxhis Library <^^ ney^ sold, exchanged or given away. CHICAGO STAf* • INOEWY 224 S. Spring 9L, L. K T«l. MUtiMlJ 4434 our J.V • LAW LIBRARY OF LOS ANGELES COUNTY BUILDING CASES IN FBEFAIiATION EMDEN'S LAW RELATING TO BUILDINGS With Precedents of Building Leases and Contracts, and Other Forms connected with Building. With Notes and Cases under the Various Sections hy his honouk judge EMDEN fourth edition l!v .1. ]{, MATTHEWS, Esq., and W. VALENTINE BALL, Esq., Barristers-at-Law London: HUTTERWORTH & CO., 11 & 12, Bell Yard, Temple Bar <>. BUILDING CASW BEING A DIGEST OF BEPORTED DECISIONS AFFECTING ARCHITECTS, SURVEYORS, BUILDERS, AND B UILDING-O WNERS BY F. ST. JOHN MOKROW, LL.D. (Dub.) Ill OF INNER TEMPI.F. AND THE SOUTH-EASTEIIN CIRCUIT. 15ARRISTER-AX-LA\V LONDON BUTTERWORTH & CO., 11 & 12, Bell Yard, Temple Bar Haw pubUdbers 190G PRISTRD BV WILLIAM CLOWES AND SONS, LIMITED, LONDON AND BKCCI.E8. T M834gk 190 6 IL XTo THE RIGHT HONOURABLE SIR EDWARD CARSON, Kxt., K.C, M.P. HIS majesty's solicitor-general 1900-1905 THIS VOLUME IS INSCRIBED BY HIS FRIEXD THE AUTHOR siJ>njC35ty PREFACE In preparing this Digest of Eeported Decisions affecting Architects, Surveyors, Builders, and Building-Owners, and with a view to making it as comprehensive as possible, I have included all decided cases of importance up to date, whether reported in the Law Reports or elsewhere. Among them will be found some decisions which have been overruled by subsequent judgments of the High Court, because, although they can no longer be relied on in courts of justice, they frequently furnish valuable assistance to those whose duty it is to advise parties as to their legal position. The cases will be found arranged as far as possible in alpha- betical order of the subjects dealt with, but a rigid classification has not been attempted, because frequently more than one subject is adjudicated upon in a particular case. In order, therefore, to obviate the necessity for such classification, I have prepared, at the cost of no little labour, an exhaustive index, which I believe will be of considerable assistance to those who shall have occa- sion to refer to the book. A Form of Agreement and Schedule of Conditions for Building Contracts, The Professional Practice as to the Charges of Architects, approved by the Royal Institute of British Architects, together with Bydcs Scale of Surveyors' Fees, will be found in the Appendix. I venture to express the hope that this work will prove useful not only to members of both branches of the legal profession and to the parties whose rights and liabilities are therein defined, but also to the large body of officials who are engaged in the adminis- tration of local government throughout the country. M.B.C. vii h 2 vni PREFACE I desire to express my tlianks to the lucorporated Council of Law lieporting for their courtesy iu according me permission to make use of certain parts of the head-notes to some of the cases published in the Law Reports ; to the lioyal Institute of British Architects for their kind permission to print iha Form of Agreement and Schechde of Conditions for Building Contracts, and the Pro- fessional Practice as to the Charges of Architects, published by them ; and to the Messrs. Eyde, 29, Great George Street, Westminster, for kindly permitting me to print Hyde's Scale. F. ST. JOHN ^rORROW. 3, Dk. Johnson's Buildings, Tkmi'le, E.g. Mnij, 1906. TABLE OF CONTENTS FAOR vii Preface .... Table of Contexts ix xiii Table of Cases '. xxiii Table of Statutes Table of Abbreviations xxix rAGB PAOB Abandonment . . . • 1 By-Law .... 135 Acceptance . . . . 2 3 4 7 8 9 9 12 13 79 80 Clerk of Works . 138 Accident to Works Condition Precedent 139 ACQXnESCENCE . . . • Continuing Offence 140 Action Continuing Penalty 141 Advertising Station Contract . . • ■ 142 Agreement . . . • Conversion 144 Air Corner House. 144 Alterations . . ■ • Covenant 144 Ancient and other Lights Cumulative Penalty 145 Appeal .... Custom .... 146 Arbitration Architect 81 Damage .... 147 Assignee . . . • 107 Dangerous Structures . 149 Assignment 108 Defective Work . 155 Delay .... 155 Back Yard 108 Demolition 158 Bankruptcy 108 Deviations 159 Bills of Quantities 119 Dwelling House 161 Bill of Sale . 120 Builder .... 123 Eaves-dropping 163 Building . . . • 124 Elevation 164 Building Agreement 125 Employer 164 Building Estate . 127 Engineer 165 Building Lease . 130 Evidence 166 Building Notice . 131 Executed Consideration . 167 BuaDiNG Owner . 132 Executed Contract 168 Building Scheme . . 133 Executor 169 " Building, Structure, oi Exemptions . . . • . 169 Work" . 134 Extra Works . . 169 IX TABLE OF CONTENTS PAOE Floors 175 fouecouut .... 175 forfeitcke .... 176 Foundations . . .177 Fkaud 178 Garden Wall . . . .179 General Line of Building . 180 Goods sold and delivered . 201 GUAR.VNTEE . . . .202 Height of Building . . 203 Hoardings .... 204 Hustings 205 Illegal Contract . . . 207 Illegal Structure . . . 208 Implied Contract . . . 208 Inconsistent Enactments . 209 Insurance .... 209 Interpleader .... 210 Interrogatories . . . 210 Joint Contract . . .211 Latest Defects . .211 Light and Air . . 212 Liquidated Damages . . 227 London Building Act, 1894 . 231 Lunacy 232 Mandamus .... 233 Measure and Value . . 235 Memorandum or Building Agreement .... 235 Memorial Stone . . . 23G "]\IoRE OR Le.ss" . . . 2.3G ^Iutual Gaiilk . . . 237 Negligence .... 237 New Building .... 242 New Stri;et .... 24G Notice 254 Nuisance 257 Old Materials . . . 2G3 Old Site 263 Open Space .... 264 Opposite Property . . . 264 Order 2G5 Pactional Damages . . 266 Parol Licence . . . 266 Partnership .... 266 PAGE Party Structure . . . 267 Party Wall . . . .268 Penalty 284 Person erecting Building . 285 Personal Covenant . . 286 Personal Service . . . 286 Petition of Right . . . 287 Plans 288 Power 292 Practice 293 Principal and Agent . . 293 Private Road .... 294 Privies 295 Projecting Signs . . .296 Projection .... 297 Prospect 300 Public Building . . . 300 Public Office .... 301 Quantities . . . .301 Quantity Surveyor . 302 Quantum Meruit . . . 308 Reasonable Time . . . 312 Rebuilding on Old Site . . 312 Receivers . . .313 Rectification .... 313 Regular Line of Street. . 313 Repairing Lease . . . 314 Repeal 314 Re.scission .... 315 Restrictive Covenants . .315 Right of Way . . . .316 Roof 316 Rubbish Shoot. . . . 317 SCHOOL-UuUSE .... 317 Set-off 318 SETfLED Land Act, 1890 . . 319 Serv^vnts of the Crown . . 319 Service of Notices . . . 320 Sign (Advertisinc;) . . 320 Sky-sign 321 Specific Performance . . 321 Specification .... 322 Statute of Frauds . . . 323 Street 323 Structure .... 324 Sub-contractor . . . 324 Subsidence .... 325 Support 326 Surety 335 Surveyor 337 TABLE OP CONTENTS XI PAGE I'AOE TEMroRARY Stands . . 346 Vibration .... 354 Temporary Structures . 347 View 355 Tenement House . . 349 Volunteer Buildings 35G Theatres, &c. . . 350 TlME-LlJIIT . 350 Waiver 357 Trellis Screen . 352 Warranty .... 358 Trespass . . 353 Water-closets Wooden Building or Struc- 358 ture 359 Umpire . 354 Work and Labour . 3G2 APPENDIX I. Form of Agreement and Schedule of Conditions for Building Contracts 369 II. The Professional Practice approved by the Royal Institute of Architects as to the Charges of Architects .... 381 III. Hyde's Scale of Surveyor's Fees 384 General Index (1) TABLE OF CASES PAGE PAGK Adamson v. Gatty 224 Back V. Stacey . . . . 32 Aldin V. Latimer, Clark, Muir- Badger v. Denn . . . . 256 head & Co 10 Badham v. Morris 33 Aldred's Case . . . . 262 Bailey v. Icke . . . . 38 Allen V. Aj're . . . . 206 Baird v. Bell . . . . 237 „ V. London Count}' Council 185 Baker v. Portsmouth Corporation 135 „ V. Seckham 53 Baltic Co. V. Simpson 62 „ V. Taylor . . . . 74 Barker v. Richardson 34 „ V. Yoxall 167 Barlow v. Ross . . . . 13 AUinson v. Davies 310 Barlow v. St. Mary Abbot's Ambler v. Gordon 69 Vestry, Kensington 105 Anderson v. Commercial Assur- Barnes v. Loach 17 ance Co. 209 Bass V. Gregory 11 Anderton v. Birkenhead Com- Basten v. Butter 311 missioners 264 Batchelor v. Fortescue 238 Andrew v. Aitken 144 Bateman v. Thompson 155 Andrews v. Smith 322 Bathishill v. Reed 258 Antisell v. Doyle 303 Batterbury v. Vyse . 88 Arcedeckno v. Kelk . 62 Battersea (Lord) v. Commis- Archer v. Hobbs 98 sioners of Sewers, London 39 Armstrong v. Jones . 96 Bauman v. St. Pancras Vestry 187 „ V. London County Baxter v. Bower 55 Council . 324 Beadel v. Perry . . . . 22 Arnold v. Walker 284 Beattie v. Gilroy 103 Ashby V. Woodthorp . 12 Beck V. Smirke . 343 Att.-Gen. v. Briggs . 6 Beddington v. Atleo . 75 „ V. Doughty 261 Bedford (Duke of) v. Dawson 70 „ V. Drapers' Company 342 Bennett v. Hughes 212 „ V. Edwards 196 Bermondsey Vestry v. Johnson 192 „ V. Hatch . 181 Bewley v. Atkinson . 43 „ V, Hooper . 297 Binckes v. Pash 31 „ V. Nichol . . 47 Birdseye v. Dover Harbour Boarc 304 V. Queen Anne, &c. Birmingham & District Land Co Mansions Co. ! 70 and Allday , 129 V. Rufford & Co. . 249 „ Dudley & Distric „ V. Wimbledon Hous( Barking Co. v. Ross 3 26 Estate Co. . 187 Blackpool Corporation v. Johnsor I 192 Auckland v. Westminster Loca Blake v. Izard . . 122 Board .... 199 Blanchard v. Bridges . 17 Autey V. Hutchiuson . 301 Blashill V. Chambers . 178 Aynsley v. Glover . 74 Bliss V. Smith . . 104 Ayr Bridge Trustees v. Adams . 211 Boddington v. Rees . 7 XIV TABLE OF CASES Kailway Bull V. Tlioinas . Bonner t'. Great Westeri Bonsall v. Byrne Booth V. Alcock Born V. Turner . Botterill v. Wliytelicad Bottoms V. York Corporation Bourke v. Alexandra Hotel Co Bower v. Peate , Bowes V. Law . Boyce v. Paddington Borough Council .... Brace v. Wclniert Bradbee v. Christ's Ilospital Braniah v. Abingdon . Brecknock Navigation Co. Pritchanl Bridewell Ilosiiital v. Ward Bridgend Gas & Water Co Dunraven (Earl of) Bridges v. Blanchard . British Lisnlated Wire Co. Prescott Urban District Council Brooks V. Terry Broomfield v. Williams Brown v. Bateman „ V. Eastern & Midland Railway Co. „ V. Edmonton Local Boarc „ V. Windsor Brunsden v. Beresford Brunsdon ;-. Staines Local P>oar. Brutton v. St. George's (Hanover Square), Vestry of . Bryant v. Lefever Bryer v. Willis . Buchan v. Artlett Buckland v. Pawson . Pullers V. Dickinson . Burn V. Miller . Burr V. Itiduut . Burt V. Bull Burton v. St. Giles and St George'ij Assessment Com- mittee .... Bush V. Whitehaven Town Trustees P>utler V. Pember Butt V. Imperial Gas Co, Calcraft i;. Thompson . Campbell v. Blyton . Carritt v. Godson PAGE 307 Caudwell v. Hanson . 223 Chambers v. Goldthorpe . 231 Chandler v. Thompson C2 Chapel V. Hickes 25 Chapman v. De Tastet 05 Chappell V. St. Botolph, Over- 177 seers of 78 Chastey v. Ackland . 332 Cheetham v. Manchester Cor- 180 poration Cherrington v. Abney 54 Chitty V. Bray .... 291 Church V. Sage .... 206 City and South London Kailway 338 Co. V. London County Comicil City of London Brewery Co. v. 3 Tennant .... 30 Clark V. St. Pancras Vestry Clarke v. Clark .... 34(3 „ V. Cnckfield Union . 219 „ V. Watson Clcmence v. Clarke . 285 Clifford V. Holt .... 20G Climpson v. Coles 28 Clntton Guardians v. Pointing . 121 Coburg Hotel v. London County Council 259 Cocks V. Romaine 28G Coker v. Young 331 Colebeck v. Girdlers' Co. . 138 Coleman v. Gittins 173 Coles V. Sims .... Collins V. Castle 184 „ V. Wilson 10 Collis V. Laugher 272 Colls V. Home and Colonial 278 Stores, Ltd 338 Columbus Co., Ltd. v. Clowes . 13 Compton V. Richards . 3(V2 Connor v. Belfast Water Com- 91 missioners . . . . 313 Cook V. Hainsworth . Coole V. Lovegrovo . Coombe v. Greene 205 Cooper V. Crabtree „ V. Hubbuck . 311 „ r. Langdon . 3G2 „ V. Straker 355 „ V. Wandsworth Local Board Corbett v. Badger 4G „ v. mill. 302 „ V. Jonas 1G3 „ I'. Richmond . TABLE OF CASES XV I'AGE Cork Corporation v. Rooncy . 1 5G Corporation of London v. Few- terers' Co. . . .- . 7B Cotcliing V. Bassett ... 18 Cotterell v. Apsey . . . 160 „ v. Griffitlis ... 52 Courtauld v. Legh ... 73 Coutts V. Gorham ... 44 Cowper V. Laidler ... 64 Crabb v. Brinsley . . . 344 Craven v. Tickell . . .160 Crisp V. London County Council 154 Crofts V. Haldane ... 51 Cross V. Lewis . . . .15 Crowfoot V. London Dock Co. . 115 Crumbie v. Wallsend Local Board 325 Crux V. Aldred . . . .227 Cubitt V. Porter .... 353 „ V. Smith . . . .192 Cunliffe v. Hampton Wick Local Board 337 Curriers' Co, v. Corbett . . 39 Dalton v: Angus . . . 329 Daniel v. Ferguson ... 42 „ V. North .... 17 Dartford Guardians v. Trickett , 6 Darwin v. Upton . . . 58 Davies v. Marshall ... 7 Davis V. Hedges ... 8 Daw V. London County Council . 294 De Morgan v. Rio de Janeiro Mills 10(3 De Worms (Baron) v. Mellier . 84 Debenham v. Metropolitan Board of Works . . . .149 Dent V. Auction Mart Co. , . 213 Devonport Corporation v. Tozer 251 Dicker v. Pophara ... 40 Dickey v. Pfeil .... 9 Dickin, Ex parte: In re Waugli 118 Dickinson v. Harbottle . . 214 „ V. Richmond Sewerage Board . , 2 Dicksee v. Hoskins . . . 162 Dixon V. Hatlield . . .201 Dodd V. Churton . . .230 t'. Holme. . . .329 Donkin and the Leeds Canal Co., In re . . . . .81 Doust V. Slater .... 8 Dover Harbour Board v. South Eastern Railway . . .164 Drew V. Josolyne . . .118 Drury v. Army and Navy Auxi- liary Co-operative Supply, Ltd. . . 270 „ V. Rickard . . .202 Dublin Corporation v. Irish Church Missions . . . 348 Duckworth v. Alison . . .173 Dunball v. Walters . . .215 Duncan v. Blundell . . . 363 Durrell v. Pritchard . . . 221 Dyers' Co. v. King . . .216 Earle v. ^laugham . . . 280 East India Co. v. Vincent . . 6 Easton v. Isted .... 65 Ebdy V. McGowan . . . 101 Eccles V. Southern . . .174 Ecclesiastical Commissioners v. Kino 49 Edwards, Ex jxtr^e; Edwards, In re 122 Elliott V. London County Council 360 Ellis V. Hamlen . . . .311 „ V. London County Council . 162 „ V. Manchester Carriage Co. 50 „ V. Plumstead Board of Works . . .324 Ellissen v. Lawrie . . . 100 Elmes V. Burgh Market Co. . 101 Epsom Urban Council v. London County Council . . . 148 Evans v. Caste .... 103 Evelyn v. Whichcord . . 342 Fairbrass v. Canterbury Corpora- tion 244 Farnswortli v. Garrard . . 309 Farthing v. Tompkins . .91 Fay V. Prentice . . . 260 Fielding v. Rhyl Improvement Commissioners . . . 255 Fillingham v. Wood . . ,280 Fisher v. Ford . . . .312 „ V. Moon .... 224 Fishmongers' Co. v. East India Co 50 Fletcher v. Dyche . . . 227 Flight V. Thomas . . .219 Folkestone Corporation v. Wood- ward 184 Foot V. Hodgson . . . 277 Fortescue v. St. Matthew's Ves- try, Bethnal Green . . 299 Foster v. Eraser . . . 204 Fowlers v. Walker ... 58 Franklin v. Darke . . .173 XVI TABLE OF CASES PAGB PAGE Freeman v. Hensler . 166 Harris v. Kiiiloch . 65 Frewen v. Phillipa 40 Harrogate Corporation v. Dickin- FulforJ V. Blatcliford . 291 son 290 Fuller V. Pattrick 207 Hart V. Porthgain Harbour Co. . 109 Furnivall v. Coombes 286 Harvey v. Lawrence . Ilastie, In the Matter of an Arbi- 85 Gale V. Abbott .... 50 tration between Stone and 271 Garritt v. Sliarpe 21 Hattersley v. Burr 136 Gaskin v. Bulls .... 293 Haynes v. King .... 00 Gately v. Martin 334 Heath v. Bucknall 222 Gayford v. Nicholls . 327 Homing v. Maline 335 German v. Chapman . 318 Hendon Local Board v. Pounce . 250 Gery v. Black Lion Brewery Co. 243 Henry v. Belfast Poor Law Guar- Gibbon v. Pease 102 dians 346 Gibbons v. Chambers . 207 Herz V. Union Bank of London . 224 Gilbart v. Wandsworth Board of Ilibbert v. Acton Local Board . 124 Works 197 Ilickey v. Browne 138 Glenn v. Leith .... 104 Hide V. Thornborough 330 Glover v. Coleman 14 Higgins V. Betts 71 Godwin v. Schweppcs, Ltd. 26 Hill V. Hall .... 314 Goldstraw v. Duckworth . 299 „ V. Warren .... 278 Gooding v. Ealing Local Board . 291 Ilobbs V. Dance. 244 Goodyear v. Weymouth Corpora- Ilobbs, Hart & Co. v. Grover . 132 tion ..... 89 Holbard v. Stevens . 365 Goolden v. Anstee 83 Holford V. Acton Urban Council 133 Gordon v. Blackburn . 104 Holland v. Wallen 270 Gozzett V. ^laldon Urban Autho- „ V. Worley 30 rity 252 Holme V. Guppy 229 Graham v. Commissioners of Hopkins V. Smcthwick Local Public Works 319 Board of Health . 159 Grainger v. Raybould 308 Horsburgh v. Sheach . 249 Grand Junction Waterworks Co. Hughes V. Kerne 29 V. Hampton Urban Council . 193 „ V. Percival . . 238 ,294 Gray, Ex parte : Holt, In re 111 Hull V. London County Council . 320 „ V.Hill . . . . 208 Hunt V. Wimbledon Local Board 106 Green v. Eales .... 314 Hutchinson v. Copestake . , 18 „ V. Belfast Tramways Co. . 333 Ilford Park Estates Co. v. Jacobs 349 Greenock Board v. Coghill . 82 Irving V. Turnbull 283 Greenwood v. Hornsey 21 Isenberg v. East India Co. . 45 Gribbon v. Moore 304 Jackson v. Newcastle (Duke of) . 24 Gwyther v. Gaze 303 „ V. Eastbourne Local Board . 3 Uackett v. Baiss 22 „ V. Normanby Brick Co. 158 Hall V. Burke .... 358 „ Winnifrith . 128 „ V. Lichfield Brewery Co. . 223 Jacomb v. Knight 48 „ V. London County Council . 320 Jagger v. Doncaster Sanitary „ V. Nixon .... 136 Authority .... 158 „ V. Smallpiece 348 James v. Master 290 Halliday v. National Telephone „ t'. Wyvill 245 Co 242 Jameson v. Brick and Stone Co. . 109 Hampstead Vestry v. IIoopcl 247 Jamieson v. Mclnnes 142 Harbidge v. Warwick 75 Jay, Ex parte : Harrison, In re. 113 Harold v. Watney 262 Jenks V. Clifden (Viscount) 15 Harris v. De Pinna . 11 Jesser v. Gilford 00 TABLE OF CASES XVll PXOK Johnson v. Lindsay . 325 „ V. Weston . 161 „ v.Wyatt . . . 48 Johnston v. Robertson 266 Jolliffe V. Woodhouse 273 Jones V. Bird .... 241 „ V. North .... 9 „ V. Parry .... 265 „ St. John's College, Oxford 228 Jones V. Siraes .... 16 Jordeson v. Sutton, etc., Gas Co 326 Josolyne v. Meeson . 300 Keen in re, Collins Ex parte 116 Kelk V. Pearson 28 KeUyv. Scotto . . . . 267 Kempston v. Butler . 146 Kensington (Lord) v. Brindley . 358 Kent County Council v. Gerard . 148 Kerr v. Dundee Gas Co. . 112 „ V. Preston Corporation 196 Kidd V. Wagner 219 Kiddle v. Lovett 149 Kilbey v. Haviland 289 Kimber v. Adams 130 Kimberley v. Dick 82 Kingston-upon-Hull Corporation V. Harding . . . . 336 Kingston-upon-Hull Corporation V. Turner . . . . 178 Kine v. Jolly . . . . 37 King V. Dickeson 191 Kinnis v. Graves 191 Kino V. Rudkin . . . . 47 Kirk V. Bromley Union 161 „ V.Reg. . . 287 Kirkwood v. Morrison 89 Knight V. Burgess . 110 „ V. Pursell 282 „ V. Simmons . 127 Knowles v. Richardson 300 Krehl v. Burrell . 316 Labalmondiere v. Addison . . 150 „ V. Frost . 154 Ladyman v. Grave . 73 Lamprell v. Billericay Union . 91 Landless v. Wilson . . 91 Lanfranchi v. Mackenzie . . 36 Lansdowne v. Somerville . . 104 Lapthorne v. St. Aubyn . 171 Lavery v. Pursell . 323 Lavy V. London County Council Law V. Redditch Local Board . Lawford f. Billericay Rural Council .... Lawrence v. Austin . „ V. Obee „ V. Horton . Lazarus v. Artistic Photographic Co Le Lievre v. Gould . Le Maitre v. Davis . Leadbetter v. Marylebone Cor- poration (1904) . Leadbetter v. Marylebone Cor- poration (1905) Lee V. Bateman .... Leech v. Schweder . Legge V, Harlock Leicester Corporation v. Brown . Leslie v. Pounds Lewis V. Brass .... „ V. Hoare .... Leyton Local Board v. Causton . Lines v. Rees .... List V. Thorp .... Lloyd V. Milward Locke V. Mortar London, Chatham, &c. Railway V. Bull & Francis . „ Corporation v. Nash „ V. Pewterers' Co. . „ V. Southgate „ County Council, In re, and London Building Act, 1894 . „ County Council v. Ayles- bury Dairy Co. . „ County Council v. Bern- stein .... „ County Council v. Best . County Council V.Candler County Council v. Car- wardine County Council v. Cross County Council v. Davis County Council v. Dixon County Council y. Herring County Council v. Hobbis County Council v. Hum- phreys „ County Council v. Illu- minated Advertise- ment Co. . rAGE 180 231 168 222 260 45 56 97 329 276 269 100 66 318 200 241 2 338 144 311 256 87 92 4 130 78 357 200 175 155 195 349 321 190 246 249 153 153 359 232 XVlll TAI LE OF CASES A PAGE London Connty Council v. Law- McManus v. Cooke . . 66 rence 203 Meadows v. Taylor . 243 „ County Council v. Mit- IMellis V. Shirley Local Board 143 chcil. 176 Merrett v. Charlton Kings Dis „ County Council V. Patman 2G3 trict Council . 292 „ County Council v. Pearcc 3G0 Metropolitan Association v. Petch 220 „ County Council v. Prioi 198 „ Board of Works v „ County Council v. Anthony 141 Schewzik . 298 „ Board of Works i'. „ County Council v. School Cox , 176 Board for London 209 „ Board of Works v. „ County Councils. Wo rlcy 203 Flight 151 ., School Board v. Johnson 179 „ Board of Works v. „ School Board v. North- Lathey 254 croft .... 308 „ Board of Works v. „ School Board v. Wall . 179 Nathan 247 Tilbury, &c., Railway „ Board of Works v. and Trustees of Gower Steed Brothers . 252 AValk Schools, In re . 35 „ Building Act, 1855, Lovelock V. King IGO In re : Ex 'parte Low V. Tunes .... 57 McBride . 354 Lowther v. Heaver . 125 Meyers (or Myers) v. Sari . 146 Ludbrooke v. Barrett . 94 Miles V. Tobin .... 31 Miller v. Hancock 152 Maberley v. Dowson . 79 Milner v. Field .... 336 Mackoy v. Scottish Widows'Fund 68 Mitchell V. Cantiill . 77 Magiiire v. Grattan , 55 „ V. Guildford Union 157 Major V. Park Lane Co. 267 Mofiatt V. Dickson 92 Mallock V. Houghton . 265 „ V. Lawrie 92 Manchester, &c., Railway v. Mohan v. Dundalk, &c., Railway 158 Barnsley Union 135 Moir V. Williams 340 Manners (Lord) v. Johnson 297 Moneypenny v. Hartland . 93 IMansfield v. Doolin . 83 Moon V. Whitney Union . 305 INLarsden v. Sambell . 315 Moore v. Davis .... 267 Marshall v. Broadhurst 169 „ V. liall . . . . 32 ,, V. Mackintosh 124 „ V. Rawson 60 „ V. Smith 272 Morant v. Taylor 351 Marsland v. Wallis . 340 Morgan v. Birnic 84 Martin v. Goble 79 Jlorris v. Grant 222 „ V. Ilcadon 71 Moseley v. Ball .... 147 „ V. Price .... 41 Moscr V. St. Magnus, &c.,Church- IMaryon v. Carter 155 wardens 345 Massey v. Goydcr 327 Mourilyan v. Labalmondiere 151 Master v. Hansard 76 I\Iuldoon V. Pringle . 344 Masters v. Pontypool Local Board 288 Mullis V. Hubbard 199 May V. Lane .... 108 Munro v. Butt .... 351 Mayfair Property Co. v. Johnston 276 Murphy v. Bower 165 McBride, Ex imrte ; In re Metro- Myers v. Catterson . 218 politan Building Act, 1855 . 354 „ (or Meyers) v. Sari . 146 McClean v. Kennard . 211 McConnell v. Kilgallen 306 National Provincial Plate-Glass McCord V. Adams 88 Lisurance Co. v. Prudential McDonald v. Workington Cor- Insurance Co. 19 Corporation .... 1 Neill V. :Midland Rv. . 301 TABLE OF CASES XIX Neirincks, Ex parte ; Ncirmcks, Lire 110 Nelson V. Spooner . . . 289 Newhaven Local Board v. New- haven School Board . . 105 Newitt, Ex 2>(i'r(e : Garrud, In re 122 Newman, In re : Capper, Ux 2)arte ..... 285 Newson v. Pender ... 20 Newton v. Ellis . . . .239 „ V. Forster . . . 319 NichoU V. Epping Urban Council 296 North V. Bassett . . . 304 North London Land Co. v. Jacques . . . .177 Norton v. L. & N. W. Railway . 225 Odwell V. Willesden Local Board 243 Olley V. Fisher .... 313 Orraes v. Beadel . . .102 Osborne v. Bradley ... 7 Paddington Vestry v. Snow . 196 Paine v. Strand Union . . 339 Palmer v. Fletcher ... 51 Pardow v. Webb . . .201 Parker v. First Avenue Hotel Co. 23 „ V. Smith . . . 215 „ V. Stanley ... 66 Parsons v. Timewell . . . 348 Partridge v. Scott . . . 334 Pashby v. Birmingham Corpora- tion 171 Pattinson v. Luckley . . . 309 Pauling V. Pontifer . . .146 Pawley v. Turnbuli ... 95 Payne v. Wright . . .317 Paynter v. Watson . . .312 Pearce v. Tucker . . . 364 Pearson v. Kingston-upon-IIull Board of Health . . .108 Peck V. Wood . . .280 Peudarves v. Munro ... 20 Penny v. Wimbledon Urban Council . . . .240 Penwarden v. Cliiug ... 53 Pepper v. Burland . . . 161 Percival v. Hughes . . 238, 294 Perkins V. Slater . . . 220 Perry v. Eames ... 29 Pfluger V. Hockeu . . . 238 Phillips V. Low . . . 225 Pizey V. Rogers . . .281 Piatt V. Parker . . .357 PAGE Plimsaul v. Kilmorlcy . . 305 Pocock V. Gilham . . . 204 Pollard y. Garl . . .213 Pomeroy v. Malvern District Council .... 141 Popplewell V. Hodkinson . . 327 Potts V. Smith . . . .260 Poulton V. Wilson . . .144 Power V. Wigmore . . . 341 Pratt V. Hillman . . .277 Presland v. Bingham ... 67 Priestly v. Stone . . .308 Pringle v. Wernham ... 72 Prinseps v. Belgravian Estate, Ltd 128 Pulbrook V. Lawes . . . 363 Quicke v. Chapman ... 24 Quinby v. Liverpool Corporation 135 R. V. Cluer . . . ,347 „ V. Commissioners of Sewers . 205 „ V. D'Eyncourt . . .234 „ ij. Eastbourne Corporation . 235 „ V. Fullford . . . .189 „ r. Fullwood Local Board . 132 „ /'. Gregory .... 257 „ .-. Jav^ 255 „ .-.Lee 152 „ -'. London County Council . 233 „ /'. Mead (1894) . . .255 ,. '•. „ (1898) . . .320 ,, ". Middlesex Justices . . 80 „ V. Mourilyan . . . 152 „ »'. Newcastle upon-Tyne Cor- poration . . . 287 „ ?'. Ormsby Local Board . 190 „ ''. Poulter .... 44 „ r. Pratt . . . .182 ,, '•. Redman .... 234 „ r. Shoreditch Vestry . . 204 „ r. Sidebotham . . . 163 „ i\ Sparrow .... 185 ,, V. Tynemouth District Council 233 „ V. West Hartlepool Corpora- tion .... 233 Radcliffe v. Portland (Duke of) . 225 Rasch V. Wulfert ... 80 Ravensthorpe Local Board v. Hinchclifle . . . .189 Ray V. Hazeldine ... 33 Reay v. Gateshead Corporation . 142 Rees V. Lines .... 1 Reeves v. Barlow . . .210 XX 'I'ABLl': OF CASES Reitl V. Batte . TAOE . 364 lienals v. Cowlishaw . . 126 Kenshaw v. Bean . 35 Restell V. Nye . 1»7, 'J9 Ricliards v. May . 174 ,, V. Hose . 330 Richardson v. Beale . . i»3 „ /•. Brown . . 359 „ i\ Dumfriesshire Trustees . 3 „ V. Mahon 139 Rigby V. Bennett 333 Riviere v. Bower 63 Roberts v. Bury Commissioners 86 „ V. Macord 215 „ V. Watkins . 87 Robins v. Goddard 85 Robinson v. Grave 212 „ )'. Local Board of Bar ton Eccles . 248 ,, '•. Sunderland Corpora- tion 359 „ V. Thompson 283 Robson V. Edwards . 30 „ V. Whittinghanie . 219 Rogers v. James 100 Rowell V. Satchell . 134 Rumball v. Schmidt . 140 Ruscoc V. Grounsell . 43 Russell V. Watt . . . . 27 St. Georges' Local Board v. Bal- lard ..... St. James* Hall Co. v. London County Council St. Margaret and St. John the Evangelist (Westminster) Ves- try V. Hoskins St. Mary's, Islington, Vestry of, v. Goodman Salaman v. Glover Salt V. Scott-Hall Salters' Co. v. Jay Sanders v. St. Neots' Union Saunders v. Broadstairs Local Board Sayers v. Collyer Schulze V. Galashiels Corporation Scott V. Carritt .... „ V. Clifton School Board „ V. Legg .... ., V. Liverpool Corporation . „ V. Pape .... Scrivener v. Pask PAGE Seawoll V. Webster . . . 273 Seddon v. Bank of Bolton . . 67 Senior /;. Pawson ... 47 Shadwell v. Hutchinson . . 68 Sharpington v. Fulham Guardians 351 Sheffield Prudential Society v. Jarvis 268 Shelfer v. City of London Electric Lighting Co 355 Sherren v. Harrison . . .172 Shiel V. Godfrey ... 78 „ V. Sunderland Corporation 264 Simper v. Foley ... 73 Simpson v. Smith . . . 183 Sims V. The Estate Company, Ltd. . . '. 279 ,, V. The London Necropolis Co 236 Slaughter v. Sunderland Corpora- tion 245 Slee V. Bradford Corporation . 194 Smith V. Baxter ... 36 ,. r. Chorlcy Rural Council 234 „ r. Day .... 72 ,, r. Howden Union , . 88 ,, V. Kirk . . . .119 „ V. Legg . . . .131 „ V. Owen .... 63 „ V. Rudliall . . .202 ,, V. Smith .... 14 „ V. Thackerah . . . 333 Soaraes v. Edge . . . 322 251 Solomon v. Vintners' Co. . . 332 South Eastern Railway v. Warton 166 350 „ Sliields Corporation v. Wilson . . .362 Spackman v. Plumstead Board of 356 Works 188 Sparling v. Clarson . , .217 300 Spratt v. Dornford . . .301 34 Squire v. Campbell . . . 258 137 Stadhard v. Lee . . .165 147 Staight v. Burn .... 57 265 Standard Bank of British South America v. Stokes . . . 274 166 Stanley of Alderney (Lady) v. 5 Shrewsbury (Earl of) . , 41 314 Stedman v. Smith . . .279 193 Stevens v. Gourley . . .208 93 ,, V. Hounslow Burial 282 Board . . .174 165 ,, V. Metropolitan District 22 Railway . . 293 306 „ V. Taylor . , , 354 TABLE OP CASES XXI PAGE Stevenson v. Watson . . 96 Stewart, Ex parte : Stewart, In re 123 Stokes V. City Offices Co. . . 220 Stokoe V. Singers . . .23 Stone & Hastie, In the Matter of an Arbitration between . .271 Stuart V. Sloper . . .123 „ V. Smith . . . .284 Stubbs V. Holywell Railway Co. 286 Sumpter v. Hedges . . . 309 Sunderland Corporation v. BroAvn 253 „ „ V. Skin- ner 253 Surrey Commercial Docks v. Ber- mondsey Borough Council . 257 Sutton Local Board v. Hoare . 194 Swainston v. Finn and the Metro- politan Board of Works . . 335 Swansborough v. Coventry . 59 Symonds v. Lloyd . . . 310 Tancred, Arrol & Co. v. Steel Company of Scotland . . 237 Tanner v. Oldham . . .169 Tapling v. Jones ... 52 Tarry v. Ashton . . . 261 Taylor V.Hall . . . .305 „ V. Reed . . . .283 Tebbv. Cave . . . .145 Terry v. Duntze . .139 Tew V. Newbold School Board . 172 Thacker v. Wilson . . .274 Tharsis Sulphur & Copper Co. v. McElroy . . . .170 Theed v. Debenham ... 45 Thomas v. Thomas . . .164 Thomlinson v. Brown . . 16 Thompson v. Failsworth Local Board . . 246 V. Hill . . .275 „ V. London County Council . . 239 Thorn v. London Corporation . 120 „ (or Venn) v. Commissioners of Public Works . . 263 Thornhill v. Neats . . .357 ,, V. Place . . . 362 Thrussell v. Handyside . . 242 Titterton v. Conyers ... 42 Tone V. Preston .... 330 Tooth V. Hallet . . . .107 Tough V. Dumbarton, &c. Com- missioners .... 82 M.B.C. Toussaud v. London County Council ... Towers v. Brown Tracy v. McCabe Traherne's Case Tripp V. Armitage Trotter v. Simpson . Truscott V. Merchant Tailors' Co Tubb V. Good . Tucker v. Rees ... „ V. Voules Turner v. Diaper „ V. Garland „ V. Goulden „ u. Sheffield, &c. Railway „ Spooner 321 175 232 12 116 281 214 344 138 316 318 98 210 16 77 Uckfield District Council v. Crow- borough Water Co. . .137 Upsdell V. Stewart . . .341 Usk District Council v. Mortimer 150 Venn (or Thorne) v. Commis- sioners of PuHic Works . . 263 Venner v. McDonell . . . 134 Vincent v. Cole . . . .167 Von Joel V. Hornsey ... 51 Wadsworth v. Smith ... 90 Waghorn v. Wimbledon Local Board 306 Waite V. Garston Board of Health 295 Walker v. L. & N. W. Railway . 157 Walker's Settled Estates, In re . 319 Wallasey Local Board v. Gracey 262 Wallen v. Lister . . .124 Wallis V. Robinson ... 83 „ V. Smith . . .230 Ward V. Lee . . . . 241 Warner v. McBride ... 76 Warren v. Brown ... 70 „ V. Mustard . . .183 Watson V. Gray . . .281 Watts V. Shuttleworth . . 210 Waugh, in re. Dicken, ex parte . 114 Weatherley v. Ross ... 36 Weatherston v. Robertson , . 142 Webb V. Bird .... 12 Webster v. Whewall ... 41 Weibking, In re : Ward, Ex parte 114 Welbank v. Weatherhead . . 268 Wells V. Army & Navy Co-opera- tive Society . . . .228 Wells v.Ody .... 28 XXll TABLE OF CASES Welsh V. West Ilam Corpo ration rACE 140 Wilson V. Queen's Club PAGE 218 Wendon v. London County „ V. Taverner , 9 Council .... 197 „ V. Townsend . 57 West Ham Charity Board i- East ] „ V. Wallace 143 London Waterworks 317 ' Wiltshire v. Sidford . 353 Western v. McDermott 5 Winter, Li re ; Bolland, Ex piartc 119 Westminster Corporation v. Lon- „ V. Brockwell 266 don County Council 347 Wood V. Cooper 352 Westminster Corporation r. Wat- „ V. London County Council 253 son .... 3G1 „ V. Silcock 236 Westminster Vestry v. Hoskins 35G „ V. Tendring Rural Autho- Weston V. Arnold 271 rity .... 229 Whcaton v. Maple Gl „ Widnes Corporation 296 Wheeldon v. Burrows 59 Woodham v. London County Wheeler v. Gray 278 Council 254 Whipham v. Everitt . 94 Woodward v. Buchanan . 364 Whitakcr v. Dunn 235 Worley v. St. Mary Abbots' Wliitbread, Ltd. v. Watt . 12G (Kensington) Vestry 186 Whitchurch, Ex parte 2G0 Wright I'. FairBeld . 110 White V. Bass . 22G „ V. Peto . 239 Yabbicom v. Bristol Brewery . 181 Whiteley v. Barley . 345 „ V. King . 288 Wigg V. Lefevre 273 Yates V. Jack .... 61 Wilkinson, In re; Fowler JlJx Yeadon Waterworks Co., In re . 111 parte . 112 Young V. Blake .... 302 „ V. Clements 126 „ V. Kitchin 107 Williams v. Fitzmauricc . 322 „ V. Smith . 307 „ V. Golding . 145 Young & Co. V. Leamington Spa „ Wallasey Local Bo ard . 182 Corporation .... 168 Wilson V. Peto . 214 Younge v. Shaper 46 TABLE OF STATUTES TAGB 2dCiir. U. cap. B (Statute of Frauds) G6, 'd2;i 8&9 Will. III. cap. 11 (/?o«(^,s), §8 285 14 Geo. III. cap. 78 {MttropoUtan Buildioj Act, 1774) . . 182, 281, 284 §3d . . . . 280 §41 ... . 27'J §43 .... 28 §60 .... 42 § 100 . . . 277, 281 hi Geo. III. cap. I'd [Unlawful Assemblies Act, l%ri),^o>^ . . . 20G „ 29 {Michael An geh Taylor's Act, 1817), § 72 . 299, 300 1 Geo. lY. cap. 100 (i>o«(/o/iil/i7<7ja^c#, 1820),§39 . . . .255 3 „ 112 §120 . . . . 257 G „ IG 110, 110, 122, 123 1 & 2 Will. IV. cap. 43 {General Turnjnke {Scotlaiul) Act, 1831) . . 314 3 & 4 Will. IV. cap. 42 {Civil Procedure Act, 1833), § 2 . . . .15 2 & 3 Will IV. cap. 71 {Prescription Act, 1832), § 1 §2 29, Gl 12, 29, 61, 329, 329 M § 3 19, 21, 22, 29, 39, 39, 43, 43, 59, Gl, 64, 65, G7, 73, 77, 78, 147, 147, 214, 219, 22G „ § 4 39, 64, 67, 67, 147, 219, 22G 8 & 9 Vict. cap. 18 {Lands Clauses Act, 1845), § 9 346 „ 126 {Lunatics Act, 1845), § 17 92 9 & 10 Vict. cap. 93 {Lord GamphelVs Act, 1846) 238 10 & 11 Vict. cap. 15 {Qas Works Clauses Act, 1847) .... 326 „ 34 {Towns Imj)rovement Clauses Act, 1847), § G3 . 249 „ » „ » § 75 . 150 „ n {Waterworks Clauses Act, ISil), ^ 93 . . .137 11 & 12 Vict. cap. 43 (»SMm7?m?-?/ /«nWic ?> j» § ^3 » » ., § 115 „ » 1, § IIG § 139 ... . 239 §157 ... . 248 11 & 12 Vict. cap. 112 {Metropolitan Sewers Act, 1848) . . . .241 15 & 16 Vict. cap. 80 {Master in Chanctry Abolition Act, 1852), § 42 . 62 16 & 17 Vict. cap. 113 {Common Law Procedure {Ireland) Act, 1853), § 12 354 xxiv TAi3LE OF STATUTES PAGE 17 & 18 Vict. cap. 105 {Militia Storehouses Act, 1854), § 2 . . 255 18 ife 19 Vict. cap. 120 {Metropolis Local Management Act, 1855), § 69 . 7 >i >» j> >» S <«5 • « „ „ „ „ § 75 . 356 •t » » ,. § 76 . 131 §78 . 247 §121 . 204 §122 . 204 §123 . 204 §143 . 204 §250170,247 18 &: 19 Vict. cap. 122 (Metropolitan Building Act, 1855), § 3 152, 152, 273, 278, 280, 280, 282, 300, 339, 344 §5 . . 151 §6 . 246,255 §9 . . 256 §12 . . 234 §19 . . 317 §21 . . 340 § 26 208, 299, 300 § 27 270, 282, 340 §28 12,256,282 §38 246,255,256, 278, 300 § 45 124, 131, 208, 348 § 46 124, 131, 348 §47 . . 131 §49 . 340,341 §51 339,340,344 §56 . . 348 §57 . . 348 §58 . . 348 §59 . . 348 §61 . . 348 § 69 151, 152, 152 §72 . 151,152 § 73 149, 151, 152, 153, 154, 273 §74 . . 152 §77 . . 151 §79 . . 151 §82 . . 2«0 § 83 51, 145, 267, 272, 273, 274, 275, 277, 278 §85 51,267,272, 274, 277, 279, 280, 354 §88 . . 282 §91 . . 280 „ §94 . . 145 TABLE OF STATUTES XXV PAGE 18 & 19 Vict. cap. 122 (Metropolitan Buildings Act, 1855) § 97 149, 150, 273 §102 . . 277 . 131 . 282 145, 275 . 299 . 340 (1) . 243 . 322 . 255 §105 §106 §io« §119 §154 „ „ First Schedule 21 & 22 Vict. cap. 27 {Chancery Amendment Act, 1858) . „ „ 97 {Puhlic Health Act, 1858) „ „ 98 [Local Qovernment Act, 1858), § 34 108, 135, 136, 136, 138, 194, 244, 248, 264, 272, 295, 362 „ §35 . . . 194 22 & 23 Vict. cap. 49 {Poor Law {Payment of Debts) Act, 1859) . . 351 21 & 22 Vict. cap. 27 {Lord Cairns' Act, 1858), § 2 4, 21, 30, 40, 41, 48, 64, 326, 355 21 & 22 Vict. cap. 98 {Local Government Act, 1858), § 34 . . .264 24 & 25 Vict, cap, 61 {Local Qovernment Amendment Act, 1861), § 28 . 189 24 & 25 Vict. cap. 134 {Bankruptcy Act, 1861), § 192 . . . .110 25 & 26 Vict. cap. 42 (BolVs Act, 1862) 48 25 & 26 Vict, cap. 101 (Police and Improvement (Scotland) Act, 1862) §162 314 25 & 26 Vict. cap. 102 {Metropolis Local Management Amendment Act, 1862), §63 199 „ „ (Metropolis Local Management Amendment Act, 1862), §74 198,199 „ „ {Metropolis Local Management Amendment Act, 1862), § 75 180, 183, 185, 185, 186, 187, 188, 188, 190, 192, 196, 197, 197, 198, 199, 201, 324 „ „ {Metropolis Local Management Amendment Act, 1862), §85 45,203,203 „ „ (Metropolis Local Management Amendment Act, 1862), §98 176,252,254 ,, „ (Metropolis Local Management Amendment Act, 1862), § 106 7 „ „ {Metropolis Local Management Amendment Act, 1862), § 107 203, 254 „ „ (Metropolis Local Management Amendment Act, 1862), § 112 247 28 & 29 Vict. cap. 86 {BovilVs Act, 1865), § 1 267 31 & 32 Vict, cap. 40 (Partition Act, 1868) 276 32 & 33 Vict. cap. 71 {Bankruptcy Act, 1869), § 17 109 §§23,31 .... 285 §39 119 §94. . . . 113,118 §§95,125 ... 118 33 & 34 Vict. cap. 75 {Education Act, 1870), § 19 209 §20 209 34 & 35 Vict. cap. 41 {Oas Worhs Clauses Act, 1871), § 9 ... 62 36 & 37 Vict. cap. 66 (Judicature Act, 1873), § 56 62 §57 62 §58 62 38 & 39 Vict. cap. 36 (Artizans, &c., Dwellings Act, 1875), § 20 13, 33, 335 XXvi TABLE OF STATUTES 38 & 31) Vict. cap. 55 {FahJk IkuUh Ad, 1875\ § 35 §3*5 §96 § 1('7 §150 § 154 !! „ „ § 155 § 150 §157 §158 § 159 §160 §173 §174 §175 §189 §193 §251 §252 §254 § 257 §204 §268 §305 §300 §326 41 Sc 42 Vict, cap 31 (Dills of Sale Act, 1878), § 4 . I'AOB . 295 295, 296, 296 . 260 . 260 . 262 . 345 . 194 181, 195, 190, 288 140, 182, 190, 196, 200 135,137,137,235,244, 1245, 245, 250, 251, 252, 253, 265, 288, 291 140, 141, 142, 147, 159, 244, 288, 291 . 245, 291 . 150 . 106, 168 106, 143, 168, 285 . 243 . 345 . 143, 345 . 196 . 196 . 196 . 150 . 325 . 296 . 359 . 142, 244 . 345 . 121,210 32 (Metropolis Management Amendment Act, 1878), §6 176, 209 350 „ „ (Metropolis Management Amendment Act, 1878), §11 „ „ (Metropolis Aianagement Amendment Act, 1878), §14 178 ,, „ (Metropolis Management Amendment Act, 1878), §16 178,300 41 ciS'2),%\^ . 141, 347, 349, 359, 360 45 & 46 Vict. cap. 43 (Bills of Sale Act, 1882) 210 45 Sc 46 Vict. cap. 56 (Electric Lighting Act, 1882) 355 46 ■' )> >) O *"'' S 33 53 & 54 Vict. cap. 49 (Arbitration Act, 1889), § 12 . „ „ 69 (Settled Land Act, 1890), § 13 (4) 54 & 55 Vict. cap. Ixxviii. (London Sky Signs Act, 1891), § 2 56 & 57 Vict. cap. 61 (Public Authorities Protection Act, 1893) 57 & 58 Vict. cap. ccxiii. (London Building Act, 1894), § 5 ,. „ »j § 7 61 & 62 Vict. cap. 29 (Locomotives Act, 1898), § 12 §8 §13 §14 §21 §22 §24 §29 §43 §45 §47 §59 §73 §74 §75 §84 §86 §90 §91 §106 §107 §109 §114 §122 §145 §150 §154 §157 §164 §188 §200 §202 §212 §215 . 175 . 317 . 291 . 80 . 319 321, 321 . 351 . 256 253, 324 . 249 233, 263 . 175 232, 340 193, 200, 209, 209 . 200 347, 361 . 193 . 193 . 202 . 270 298, 320 162, 163 . 270 360, 361 . 360 132, 256, 269, 271, 276 269, 271, 276 . 154 153, 154, 155 . 153 . 153 . 162 134, 361 . 193 340, 343 . 343 . 298 . 320 . 298 . 202 . 169 . 347 . 148 TABLE OF ABBREVIATIONS (1891) A. C Law Reports Appeal Cases (1891 onwards). A. & E Adolphus & Ellis, Queen's Bench. Addams, Ecc. . . . Addams, Ecclesiastical. Aleyn Aleyn, King's Bench, Amb Ambler, Chancery. And Anderson, Common Pleas. Andr Andrews, King's Bench. Anst Anstruther, King's Bench. App. Cas Law Reports Appeal Cases (1876-1890). Arn Arnold, Common Pleas. Arn. & H Arnold & Hodges, Queen's Bench. Asp. M. C Aspinal, Maritime Cases. Atk Atkyns, Chancery. B. & Ad Barnewall & Adolphus. B. & Aid Barnewall & Alderson, B. & C Barnewall & Cresswell. B. & S Best & Smith. B. C. C Lowndes & Maxwell, Bail Court. B. C. Rep. ■ . . . Saunders & Cole, Bail Court. Ball. & B Ball & Beatty, Chancery (Ireland). Bar. & Arn Barron & Arnold, Election. Bar. & Au Barron & Austin, Election. Barnard. Ch. . . . Barnardiston, Chancery. Barnard. K. B. . . . Barnardiston, King's Bench. Batty Batty King's Bench (Ireland). Beat Beatty Chancery (Ireland). Beav Beavan. Bell, C. C Bell, Crown Cases. Bing Bingham. Bing. (n.c.) .... Bingham, New Cases. Bligh Bligh, House of Lords. Bligh (n.s.) .... Bligh, New Series, House of Lords. Bos. & P Bosanquet & Puller, Common Pleas. Bos. & P. (n.b.) . . Bosanquet & Puller, New Reports, Common Pleas. Bott. P. L Bott's Poor Laws. Br. & B Broderip & Bingham, Common Pleas. Br. & Lush Browning & Lushington, Adm. Bro. C. C Brown, Chancery Cases. Bro. P. C Brown, Cases in Parliament. Buck Buck, Bankruptcy. Bull. N. P BuUer's Nisi Prius. Bulst Bulstrode, King's Bench. xxix XXX TABLE OF ABBREVIATIONS Bunb . Buiibmy, Exchequer. Burr Burrows, King's Bench. Burr. S. C Burrows, Settlement Cases. (1891) Ch Law Reports, Chancery (1891 onwards). C. B Common Bench Reports. C. B. (n.s.) .... Common Bcncli Reports, New Series. C. L. R Common Law Reports. C. P. D Law Reports, Common Pleas Division. Cab. & E Cababe & Ellis. Cald. S. C Caklccott, Settlement Cases. Camp Campbell. Car. & K Carringtou and Kirwan. Car. & M Carringtou & Marshman. Car. & P Carrington & Payne. Carter Carter, Common Pleas. Carth Carthcw, King's Bench. Cary Cary, Chancery. Cas. t. Hardwicke . . Cases tcmj)., Ilardwickc, King's Bench. Cas. t. Talbot . . . Cases temp., Talbot, Chancery. Ch. Cas Chancery Cases. Ch. Cas. Ch Choice Cases in Chancery. Ch. D Law Reports, Chancery. Ch. Pre Chancery Precedents. Ch. Rep Chancery Reports. Chitty Chitty, Bail Court. CI. & F Clark & Finnelly, House of Lords. Co. Rep Coke, King Bench. Coll. C. C Collyer, Chancery. Colles Colles, Cases in Parliament. Colt Coltman Registration. Comb Comberbach, King's Bench. Comyns Comyns, King's Bench. Coop. t. Brough. . . Cooper, Cases temp. Brougham. Coop. t. Cott. ..." Cooper, Cases Chancery temj). Cottenham. G, Cooper Chancery. C. P. Cooper .... C. P. Cooper, Chancery. C. & J Crompton & Jcrvis. C. & M Crompton & Meeson. C. M. & R Crompton, Meeson, & Roscoe. Con. & L Connor & Lawson, Chancery (Ireland). Cooper Cooper, Chancery. Ct. of Sess. Cas. . . Court of Sessions Cases (Scotland). Cowpcr Cowper, King's Bench. Cox Cox, Chancery. Cox C. C Cox, Crown Cases. Cr. & Ph Craig & Phillips, Chancery. Craw. & D Crawford & Dix (Ireland). Curt Curtcis, Ecclesiastical. D. P. C Dowling, Practice Cases. D. (n.s.) Dowling, Practice Cases, new series. D. & L Dowling & Lowndes, Practice Cases. D. & R Dowling & Ryland, King's Bench. TABLE OF ABBREVIATIONS XXXI Dan Daiiiell, Exchequer. Dans. & LI Danson & Lloyd, Mercantile. Dav. & M Davison & Merivale, Queen's Bench. Deac Deacon, Bankruptcy. Deac. & C Deacon & Chitty, Bankruptcy. Dears. & B Dearslcy & Bell, Crown Cases. Dears. C. C Dearsley, Crown Cases. De G De Gcx, Bankruptcy. De G. F. & J. . . . De Gex, Fisher & Jones. De G. & J De Gex & Jones. De G. J. & S. . . . De Gex, Jones & Smith. De G. M. & G. . . . De Gex, Macnaghten & Gordon. De G. & Sm. . . . De Gex & Sraale. Den. C. C Denison, Crown Cases. Dick Dickens, Chancery. Dod Dodson, Admiralty. Doiigl Douglas, King's Bench. Dow Dow, House of Lords. Dow & CI Dow & Clark, House of Lords. Dr Drury, Chancery (Ireland). Dr. & Sm Drewry & Smale, Chancery. Dr. & W Drury & Walsh, Chancery (Ireland). Dr. & War Drury & Warren, Chancery (Ireland). Drew Drewry, Chancery. Drink Drinkwater, Common Pleas, Dyer Dyer, King's Bench. East East, King's Bench. East P. C East, Pleas of the Crown. Eden Eden, Chancery. Edw Edwards, Admiralty. El. & Bl Ellis & Blackburn. El. Bl. &E1 Ellis, Blackburn & Ellis. El. & El Ellis & Ellis, Queen's Bench. Eq. Ca. Abr Equity Cases Abridged. Eq. E Equity Reports. Esp Espinasse. Ex Exchequer Reports. Ex. D Law Reports, Exchequer Division. F. & F Foster & Finlayson. Fl. & K Flanagan & Kelly, Rolls Court (Ireland). Falc. & F Falconer & Fitzherbert, Elections. Fitzg Fitzgibbon, King's Bench. Fonb. (n.u.) .... Fonblanque, Bankruptcy. Fon-est Forrest, Exchequer. Fort Fortescuo, lung's Bench. Foster Foster, Crown Cases. Fox Fox, Registration. Free. C. C Freeman, Chancery Cases. Free. K. B. . • . . Freeman, King's Bench. G. & D Gale & Davison, Queen's Bench. Gale Gale, Exchequer. XXxii TABLE OF ABBREVIATIONS G. Cooper .... G. Cooper, Chancery. Gill Giffard, Chancery. Gilb Gilbert, Chancery. Glyn & J Glyn & Jameson, Bankruptcy. Godb Godbolt, King's Bench. Gow Gow, Nisi Prius. II. Bl II. Blackstone. 11. B. C Hudson's Building Contracts, Vol. II. II. L. Cas House of Lords Cases. II. & C Hurlstone & Coltman. II. & II Horn & Hurlstone, Exchequer. U. cSc M Hemming & Miller, Chancery. H. «& N Hurlstone & Norman. H. & R Harrison & Rutherford, Common Pleas. II. & W Harrison & Wollaston, Bail Court. Hag. Adm Haggard, Admiralty. Hag. Cons Haggard, Consistory. Hag. Ecc Haggard, Ecclesiastical. Hall&Tw Hall & Twells, Chancery. Hardr Hardrcss, Exchequer. Hare Hare, Chancery. Hawk. P. C Hawkins, Pleas of the Crown. Hay. & J Hayes & Jones, Irish Exchequer. Hayes Hayes, Irish Exchequer. Hob Hobart, King's Bench. Hodges Hodges, Common Pleas. Hog Hogan, Irish Rolls Court. Holt Holt, King's Bench. Holt Eq Holt, Equity. HoltN. P Holt, Nisi Prius. Hopw. & C Hopwood & Coltman, Registration. Hopw. & P Hopwood & Philbrick, Registration. Hurl. & W Hurlstone & Walmsley, Exchequer. Ir. C. L. R Irish Common Law. Ir. Ch. R Irisli Chancery. Ir. Eq. R Ivish Equity Reports. (1894) Ir. R. . . . Irish Law Reports (from 1894). Ir. R. C. L Irish Common Law. Ir. R. Eq Irish Equity. .], Si 11 Johnson & Hemming, Chancery. J. & W Jacob & Walker, Chancery. J. Kelyng .... Sir J. Kelyng, Crown Cases. J. P The Justice of the Peace. Jacob Jacob, Chancery. Jenk Jenkins, Exchequer. Jo. & Lat Jones & La Touche, Irish Chancery. Johns Johnson, Chancery. Jones Jones, Irish Exchequer. Jones (T.) .... Sir T. Jones, King's Bench. Jones (W.) .... Sir W. Jones, King's Bench. Jones & C Jones & Carey, Irish Exchequer. TABLE OF ABBREVIATIONS XXXlll Jur The Jurist (new scries). Jur (o.s.) The Jurist (old series). K. & G Keaue & Grant, Registration. K. & J Kay & Johnson, Chancery. Kay Kay, Chancery. Keb Keble, King's Bench, Keen Keen, Rolls Court. Keilw Keilway, King's Bench. Kel Kelyng, Sir J., King's Bench. Ken Kenyon, King's Bench. Knapp Knapp, Privy Council. Kuapp & Knapp & Orubler, Elections. L. & C Leigh & Cave, Crown Cases. L. J. (o.s.) .... Law Journal from 1822-1831. L. J Law Journal from 1831. L. & M Lowndes & Maxwell, Bail Court. L. M. & r Lowndes, Maxwell & Pollock, Bail Court. L. T Law Times, New Series. L. T. J Law Times Journal. L. R. Ir Irish Law Reports. Latch Latch, King's Bench. Leach, C. C Leach, Crown Cases. Ld. Raym Lord Raymond, King's Bench. Lev Levinz, King's Bench. Lewin, C. C. ... Lewin, Crown Cases. Lit. Rep Littleton, Common Pleas. LI. & G Lloyd & Goold, Irish Chancery. Lofft Lofft., King's Bench. Longf. & T Longfield & Townsend, Irish Exchequer. Lush Lushington, Admiralty. Lutw Lutwyche, Common Pleas. Lutw. Reg. Cas. . . Lutwyche, Registration. M. C. C Moody, Crown Cases. M. & H Murphy & Hurlstone, Exchequer. M. & M Moody & Malkin. M. & P Moore & Payne, Common Pleas. M. & Rob Moody & Robinson. M. & S Maule & Selwyn. M. & Sc Moore & Scott, Common Pleas. M. & W Melson & Welsby. Macl. & R Maclean & Robinson, Scotch Appeals. !Mac. & G Macnaghton & Gordon. McCle McClelland, Exchequer. McCle. & Y McClelland & Young, Exchequer. Macq. H. L Macqueen, House of Lords. Madd Maddock, Chancery. Man. & G Manning & Granger. Man. & Ry ]\Ianning & Ryland, King's Bench. Mans Manson, Bankruptcy. Marshall Marshall, Common Pleas. Meg Megone, Company Cases. XXXIV TABLl'; OF ACBUEVIATlO^sS Mer Mcrrivale, Chancery. Mod Modern Picports. Moll Molloy, Irish Cliancery. Mont Montagn, Bankruptcy. Mont. Si Ayr. . . . i\Ioiitagu & Ayrton, Bankruptcy. Mont. Sc V> Montagu & Bligli, Bankruptcy. Mont. & C ^lontiigu and Cliitty, Bankruptcy. ^lont. & ^IcAr. . . . IMontagu and Mc Arthur, Bankruptcy. Mont. D. &. D. . . . ^lontagu Deacon & De Gex, Bankruptcy. Moo IMoorc, Common Pleas. Moo. Ind. App. . . . Moore, Indian Appeals. Moo. P. C Moore, Privy Council, Morr Morrell, Bankruptcy. ^los, Moseley, Chancery. ]\Iyl. & Cr Mylne & Craig, Chancery. ]\Iyl. & K Mylne & Keen, Chancery. N. & M Neville & Manning, King's Bench. N. & P Neville & Parry, King's Bench. N. II New Reports. Nels Nelson, Chancery. New Sess. Cas. . . . New Sessions Cases. O'.AI. & II O'Malley & Hardcastle, Election. (1891) P Law Reports, Probate from 1891. P. D Law Reports, Probate Division. P. & D Perry & Davison, King's Bench. P. & K Perry & Knapp, IClection. Peake, Add. Ca. . . Peake, Additional Cases, Nisi Prius. P. Wms Peere Williams, Chancery. Phill Phillimore, Ecclesiastical. Ph Phillips, Chancery. Pol Pollexfen, King's Bench. Pop Popham, King's Bench. Price Price, Exchequer. Q. B Queen's Bench Reports (1841 to 1852). Q. B. D Law Reports, Queen's Bench Division (from 1875). (1891) Q. B Law Reports, Queen's Bench (from 1891). R The Reports. R. R Revised Reports. R. & R Russell & Rj'an, Crown Cases. li. B, C Roscoe's Digest of Building Cases. Rail. Cas Railway and Canal Cases. Raym., Ld Lord Raymond, King's Bench. Ridg. L. & S. . . . Ridgway, Lapp & Schoales, Irish King's Bencli. Ridg Ridgway, Parliamentary Cases. Rep. Cli Reports in Chancery. C. Rob Sir Charles Robinson, Admiralty. W. Rob W. Robinson, Admiralty. Rob Abr RoUe's Abridgment. Rol Rolle, King's Bench. Rose Rose, Bankruptcy. TABLE OF ABBREVIATIONS XXXV Russ Russell, Chancery. Rus. & M Russell &, Mylne, Chancery, Ry. & Can. Tr. Cas. . Railway & Canal TrafiSc Cases (from 1874). Ry. «& M Ryan & Moody, Nisi Prius. Salk Salkeld, King's Bench. Sau. & Sc Sausse & Scally, Irish Rolls Court. Saund Saunders, King's Bench. Saimd. & C Saunders & Cole, Bail Court. Say Sayers, King's Bench. Sell. & Lef. .... Schoales & Lefroy, Irish Chancery. Sco Scott, Common Pleas. See. (N.R.) .... Scott, New Report, Common Pleas. Sel. Ca. Ch Select Cases in Chancery. Selw. N. P Selwyn, Nisi Prius. Show Shower, King's Bench. Show. P. C Shower, Parliamentary Cases. Sid Siderfin, King's Bench. Sim Simons, Chancery. Sim. & S Simons & Stuart, Chancery. Sm. & G Smale & Giffard, Chancery. , Sm. K. B Smith, King's Bench. ^ Sm. Reg Smith, Registration. Spinks Spinks, Admiralty. St. Tri State Trials. Stark Starkie, Nisi Prius. Str Strange, King's Bench. Sty Styles, King's Bench. Sw Swabey, Admiralty. Sw. & Tr Swabey & Tristram, Probate. Swanst Swanston, Chancery. T. Jones Sir T. Jones, King's Bench. T. & M Temple & Mew, Crown Cases. T. Raym Sir T. Raymond, King's Bench. Tam Tamlyn, Rolls Court. Taunt Taunton, Common Pleas. Term. Rep Durnford & East, King's Bench. Tothill Tothill, Chancery. Tur. &R Turner & Russell, Chancery. Tyrw Tyrwhitt, Exchequer. Tyrw. & G Tyrwhitt & Granger, Exchequer. Vent Ventris, King's Bench. Vern. ...... Vernon, Chancery. Vern. & S Vernon & Scriven, King's Bench. Ves. Sen Vesey, Senior, Chancery. Ves Vesey, Junior, Chancery. V. & B Vesey & Beames, Chancery. W. Bl Sir Wm. Blackstouc, King's Bench. W. Jones Sir. W. Jones, King's Bench. W. Kelynge .... Sir. W. Kelynge, Chancery. W. R Weekly Reporter. XXXvi TABLE OF ABBREVIATIONS W. \V. &: D Wilmorc, Wollaston & Davison, King's Bench. W, W. & II Wilmore, Wollaston & Hodges, King's Bench. West West, House of Lords. Wightw Wiglitwick, Exchequer. Willes Willes, Common Pleas. Wil Wilmot's Notes, King's Bench. Wils. Ch Wilson, Chancery. W' lis. Ex Wilson, Exchequer. Wils. K. B Wilson, King's Bench. Wms.' Saund. . . . Williams' Saunders, King's Bench. y. & C Younge & Collyer, Exchequer & Equity. Y. & C. C. C. . . . Younge & Collyer, Chancery Cases. Y. & J Younge & Jervis, Exchequer. Yelv Yelverton, King's Bench. Younge Younge, Exchequer & Equity. DIGEST OF BUILDING CASES ABANDONMENT Contract. — A builder contracted with a corporation to exe- cute certain sewerage work according to plan, specification, and workincr di-awinss. In the course of the work it was found that certain tunnelling specified was impracticable, owing to the quantity of water in the soil; and the contractor suggested certain modifica- tions of the scheme. These proposals were rejected, whereupon the builder threw up the contract. In an action by the builder to re- cover the balance due to him on the contract so far as it had been performed. Pollock, B., found for the defendants, and held, that the builder could not throw up the contract because the nature of the soil makes performance according to plan and specification difficult or impossible. Where the engineer's certificate is a condition pre- cedent to payment, the contractor on abandonment of the contract is not entitled to payment for work done without the engineer's certificate, unless he can show collusion. McDonald v. wobkington cobpobatiox. (1892) K. B. C. 222. Contract. — The plaintiff contracted to build a house for the defendant, according to a certain plan, for an agreed sum. After proceeding with the work and making a payment of £15 on account of the contract, the defendant, it was alleged, had aban- doned the contract. In an action by the builder to recover the balance of the contract, Coleridge, J., held, that if the defendant had not hindered the plaintiff from completing the work, the plaintiff could not recover except for extra work, which was not in the contract; the fact that the defendant, when asked for money, stated that he would not pay a farthing, was not proof that he had abandoned the contract, for he was not then liable to pay anything, as the work was not completed. BEES V. LINES. (1837) 8 C. & P. 126. M.B.C. B 2 ABANDONMENT Not justified by Difficulty encountered. — A contractor agreed M'itli the (lerendants to execute certain Luilding works according to i)lans and specifications, under the superintendence of the defendants' engineer, within a period of eighteen months. During the progress of the works the plans were deviated from, and difficulties arose with certain landowners affected. In an action by the contractor for work and labour done and money paid to the use of the defendants, JVills, J., found for the defendants, and held, that a contractor to execute sewerage works for a sanitary authority under the PuUic Health Acts, is not entitled to abandon the contract because of difficulties created by the landowners affected. DICKINSON V. RICHMOND SEWERAGE BOARD. (1893) H. B. C. 199. ACCEPTANCE Of Tender. — The plaintiff, through his architect, invited tenders for certain alterations to his premises, sending to certain builders bills of quantities. A builder submitted a tender to execute the work, and it was accepted by a letter from the architect to the builder in these terms : " I am instructed by my client . . . to accept your tender of £4193 for works as above referred to. The contract will be prepared by . . , solicitors, and I have no doubt it will be ready for signature in the course of a few days." Sub- sequently the builder found that, by a mistake in his calculations, he had tendered at too low a price, and he withdrew his tender. The plaintiff then contracted with another builder at a much larger price, and brought an action against the builder first-named for damages. The action was tried by Hmvkins, J., who left it to the jury to say whether by the tender and acceptance the parties intended to enter into a contract ; and, on the jury finding in the aflBrmative, he entered judgment for the plaintiff. A motion in the Queen's Bench Division for a new trial was refused, and the defendant appealed. The Court {Bramwell, Brett, and Cotton, L.JJ.), in a considered judgment, affirmed the decision of Hawkins, J., and held, that an intimation in the written acceptance of a tender that a contract will be afterwards prepared does not prevent the parties from becoming bound to perform the terms in the tender and acceptance, if the intention of the parties was thereby to enter into an agreement. LEWIS v. BRASS (1877) 3 Q. B. D. G67; 37 L. T. 738 ; 26 W. R 152. ACCIDENT 3 ACCIDENT To Works. — A firm of contractors covenanted to build a cer- tain bridge in a substantial manner, and to keep it in repair for seven years. Within seven years, by reason of extraordinary floods, the bridge was broken down. In an action on the cove- nant by the Bridge Trustees, Lord Kenyon, C.J., held, that tlic contractors were bound to rebuild the bridge. BBECKNOCK NAVIGATION CO. v. P BITCH AIID. (1796) G T. E. 750 ; 3 R. E. 335. To Works. — By a clause in a contract with a Local Board to build a sea-wall, the contractor undertook to be answerable for all accidents and damages "from or hy seas, winds, drift of craft, fire, or any other cause whatsoever," which should happen to the works during their construction, and was bound to make good any such damages, should they occur. An action by the Local Board for breach of contract to build and complete the sea-wall was referred, and the contractor urged that it was the statutory duty of the Board to maintain certain groynes to preserve the shingle at the level shown on the plans, and so rendered it possible for him to execute the contract. On hearing a special case stated by the arbitrator, the Court {Matheiv and Day, JJ.) held, that the duty to prevent the encroachment of the sea was upon the Local Board. The latter appealed, and the Court {Lord Esher, M.B., Cotton and Lindley, L.J J) reversed the decision of the Divisional Court, and held, that the contractor was liable on his contract for all damages. The contractor appealed, and the House of Lords {Earl of Selborne, L.C., Lords Watson, Branucell, Fitz-Gcrcdd, Halshury, and Ash- bourne) affirmed the judgment of the Court of Appeal. JACKSON V. EASTBOVBNE LOCAL BOABD. (1886) H. B. C. 231. To Works. — The plaintiff agreed to build part of a bridge, and when the work was nearly completed an employe of the defendants ordered the wooden centres and supports of the arch to be prematurely removed, with the consent of one of the contractor's workmen, but without the knowledge of the contractor. In an action by the contractors for the value of the work actually done, the Shcriff-Suhsiitute found for the defendants. On appeal, the Court {the Lord Justice Clerk, and Lords Young, Bnthcrford, Clark, and Lee) held, that the defendants were liable, as the work had been executed according to contract, and the accident had not been caused by any fault on the contractor's part. BICHABDSONw. DUMFBIESSHIBE TBUSTEES. (1890) 17 Ct. of Sess. Cas. (4th Ser.) E. 805. 4 ACQUIESCENCE ACaUIESCENCE Breach of Covenant. — A railway company conveyed certain laiul to a purchaser who covenanted not to build within ten feet of the roadway or viaduct of the company, without their permis- sion in writing. The purchaser conveyed the property to the first defendant's testator, who took without any, except constructive, knowledge of the covenant, and he built, in 1869, premises in breach of the covenant, and assigned the lease to the second defendant's predecessor in title. The lessee covenanted not to make any alterations in the premises without the lessor's consent. The second defendant increased the height of the premises, having paid a sum to the first defendant (as executor) ibr his consent. The company had no knowledge of either the erection, or the alteration, until ISSl. On a special case, the Court {Field and Stejihcn, J J.) held, that the plaintiffs were entitled to a mandatory injunction against both defendants, and that the second was not entitled to be indemnified by the first defendant. LONDON, C.&D. BY. v. BULL cC* FliANCIS. (1882) 47 L. T. 413. Breach of Covenant. — The owners of a buildinGf estate sold it in lots to certain purchasers, each of whom covenanted, with the owners and other purchasers, not to build a shop tliereon, or carry on any trade in his house. The plaintiff, who had purchased in fee a house standing on one of these lots, which he occupied as a private residence, brought an action, in March, 1882, for an injunction to restrain the defendant from carrying on the business of a public-house in a certain house and premises which he purchased, with notice of the restrictive covenant. The evidence showed that other houses on the estate were used for the purposes of trade ; that the house in question was built, to all appearance for use as a public-house, in April, 1879, when the defendant purchased it; that the latter obtained an "off" licence in May, 1879; and that the plaintiff knew that the house was used as a public-house in 1879, and had then remonstrated, but had taken no further action. Pearson, J. (24 Ch. I)n. 180), dismissed the action with costs against the plaintiff, wlio appealed. The Court {Baggallay, Bovxn, and Fry, L.JJ.) held, that the change in the character of the neighbourhood was not in itself a ground for refusing relief to the plaintiff; but that he had lost his rights to an injunction or damages by reason of his acquiescence : Lord Cairns Act applies where the damage sustained is only nominal, as well as to cases where the plaintiff is entitled to substantial damages, and its repeal, by 46 cO 47 Vict. e. 49, has not affected ACQUIESCENCE 5 the jurisdictiun of the Court. Acquiescence, although uut sullicieiit to bar an action, may induce the Court to grant only damages instead of an injunction {per Fry, L.J.). SAYERS V. COLLYER. (1885) 49 J. P. 244; 28 Ch. D. 103; 54 L. J. Ch. 1; 51 L. T. 723 ; 33 W. E. 91. -Breach of Covenant. — The plaintiff and the defendant were adjoining owners, and the plaintiff sought an injunction to restrain the defendant from erecting a certain building in the rear of his house. Both premises had been a part of one estate, and a covenant in the head lease provided inter alia that houses to be built thereon were to be in accordance with a particular plan. Lord Romillt/, M.R., held, that a covenant against building entered into by a purchaser of land with the vendor, who was also adjoining owner, his heirs, etc., runs with the land, and may be enforced by a subsequent purchaser of part of such adjoining lands. A person seeking to enforce it must show that substantial damage will 1)C caused by the breach. A person who has acquiesced in breaches of such a covenant is not debarred of his remedy in equity, pro- vided the breach has caused substantial damage. All persons entitled to the benefit of the covenant need not be parties in a suit to enforce it. WESTERN V. MACDERMOTT. (1865) L. E. 1 Eq. 499 ; 2 Ch. 72 ; 12 Jui". 36G ; 36 L. J. Ch. 76 ; 15 L. T. 641 ; 15 W. E. 265. -Building Works. — A railway company, having constructed a tunnel, disposed of the ground above, subject to the condition that the purchaser was to erect no buildings, etc., but according to a specification in writing approved by the company's priwApal engineer. The purchaser submitted plans, etc., in June to the resident engineer, who omitted to lay them before the principal engineer, but informed the purchaser verbally that the works might proceed, which the latter acted on. In October, when the principal engineer saw the plans for the first time, he condemned them as dangerous to the tunnel. The purchaser persisted in building, and the company caused an information to be laid to restrain him from proceeding. Wood, V.C., held, that the approval of their resident engineer did not bind the company, and that the fact that the defendant was permitted to go on with the work from June until October, under the circumstances, was not such 6 ACQUIESCENCE an acquiescence on the part of the company, as to exempt the purchaser from Ijeing restrained. A.-G. V. BJIIGGS. (1855) 1 Jur. 1084. Building Works. — An agent of the East India Co. was in treaty with the owner for the purchase of certain land. The latter insisted upon certain terms. The agent made no reply, but the company began to build. Lord JTanhvidx, L.C., held, that tlie silence of the agent was construed as assenting to the terms so as to bind his principals. When a man suffers another to build on his ground, witliout setting up a right until afterwards, the Court will oblige the owner to permit the person building to enjoy it quietly. EAST INDIAN CO. v. VINCENT. (1740) 2 Atk. 8:3. Delay. — A tender submitted by the defendant fur the supply of granite to the plaintiffs, contained the words "tveaihcr and other circumstances iKrmittlng." These words were struck out by the plaintiff's clerk, and the defendant informed accordingly. No reply having been received from the defendant for several days, the contract was duly sealed. Delays ' occurred in supplying the granite owing to bad weather, etc. In an action by the plaintiffs to recover damages for breach of contract, Follocl; B., gave judg- ment for the plaintiffs. On appeal, the Court (Loi-d Eshcr, M.B., Lindlcy and Bowen, L.JJ.) dismissed the appeal. DABTFOBD GUABDIANS v. TBICKETT. (1889) 53 J. r. 277 ; 5 T. L. E. G19 ; 59 L. T. 754. False Eepresentations. — An adjoining owner, in rebuilding, removed certain portions of his premises, and thus withdrew their support from the plaintiff's Ijuildings, and erected buildings above the level of the plaintiffs house, whereby he darkened the plaintiffs lights, and prevented the plaintiff's chimneys from draw- ing properly. In an action for damages against the adjoining owner, tlie defendant pleaded that the plaintiff had acquiesced in his pulling down and erecting the premises in the manner complained of. The plaintiff replied that such acquiescence was induced by the false representations made by the adjoining owner that the grievances complained of would not result from the building operations. On demurrer the Court {Eric, C.J,, Willianis, Willcs, and Bylcs, JJ.) held, that the plea was a ACQUIESCENCE ' good equitable defence, but that it Nvas well answered by the reply. DA VIES V. MARSHALL. (1861) 31 L. J. C. P. 61 ; 10 C. B. (n.s.) 697 ; 1 Dr. & Sm. 557 ; 7 Jur. 1247 ; 9 W. E. 866 ; 4 L. T. 581. -Minor Breaches.— The plaintiff sold land to the predecessor in title of the defendant, who entered into a covenant that he would erect only private residences thereon. The plaintiff after- wards either himself built, or permitted to be built, a numljcr of shops on the adjoining plots, and acquiesced in some slight breaches of covenant in respect of the defendant's land. The defendant, who had notice of the covenants made by his pre- decessor in title, began to alter two houses erected on the plot into shops, and the plaintiff brought an action to restrain him. Farwcll, J., held, that no buildiug scheme had l.iecn proved to exist, and, in the absence of such a scheme and of proof that the covenant was entered into merely for the protection of the plaintiffs property, the change in the character of the neigh- bourhood, though caused by his own acts, and his acquiescence in minor breaches, did not disentitle him to an injunction. OSBORNE V. BRADLEY. (1903) 2 Ch. 446 ; 73 L. J. Ch. 49 ; 89 L. T. 11. ACTION No cause of, disclosed.— Under a building agreement the defendant agreed to let to the plaintiff land for the purpose of erecting thereon certain houses. In an action for specific per- formance of the agreement, the statement of claim set out the agreement, and alleged that owing to the defendant entering into possession of the land and plaintiffs material thereon, the plaintiff was unable to carry out his agreement, and thereby suffered loss. On hearing a motion under Order XXV. to strike out the state- ment of claim, on the ground that it disclosed no cause of action. Bacon, V.C, dismissed the motion. BOBBING TON v. BEES. (1885) 52 L. T. 209. Notice of. — The defendant, under notice from the local authority, laid a drain-pipe through a part of the plaintiff's premises. In an action for trespass tried by Cockburn, C.J., the defendant contended that he was entitled to notice of action under § 106 of 25 tC- 26 Vid. c. 102, as a person acting under the direction 8 ACTION of the local board. The plaintifr obtained a verdict. On a rule, the Court {Coclhurn, C.J., Lush and Hayo^, J.J.) held, that a person who has received notice from a local board to drain his house, and in doing so commits a trespass, is not entitled to notice of action under § 106 if proceedings be taken against him in respect of such trespass. DOUST V. SLATER. (18G9) 38 L. J. Q. B. 159 ; 10 B. & S. 400 ; 20 L. T. 525. • Second. — A builder improperly performed a building contract to wliich he and the pluintilT were parties, and at the liuaring of an action by the plaiutill' to recover damages, the defendant alleged that he had sued the plaintiff in another action for the price of the work improperly done, and that the plaintiff had settled that action by payment of the claim in full, and that therefore the plaintiff was precluded from bringing this action, as he might have given the alleged non-performance and the defective perform- ance in evidence in reduction of the damages. The Court {Hanncn and Lush, J J.) held, in a considered judgment, that although the plaintiff might have used the causes of action for which he sued in reduction of the claim in the former action, yet he was not bound to do so, but might maintain a separate action for them. DA VIS v. HEDGES. (1871) L. E. 6 Q. B. 087 ; 40 L. J. Q. B. 276 ; 25 L. T. 155 ; 20 W. Ft. 60. ADVERTISING STATION The defendant agreed to permit the plaintiff to erect a hoard- ing for a bill-posting and advertising station in the forecourt of a cottage, together with the gable-wall of another cottage in the neighbourhood for the same purpose, at a rent of £10 per ann. The agreement was dated January 9, 1895. On September 29, 1900, the defendant gave notice in writing to the plaintiff to quit and deliver up the ibrecourt and all other premises held by him under the agreement, and required him to remove all boards, hoardings, etc., on or before December 25, 1900. On December 22, 1900, the plaintiff issued the writ in this action, which was not served on the defendant until December 27, 1900. On the morning of December 27, 1900, the defendant removed the hoarding and wall, for the purpose of rebuilding the cottages. On January 11, 1901, an interlocutory injunction was refused, but the action was ordered to be set down for trial without pleadings. The claim fur an injunction was abandoned at the AGREEMENT » trial, and Joyce, J., held, that the agreement did not constitute a tenancy from year to year, but merely a licence revocable on reasonable notice, and that a quarter's notice, terminating at the end of a year of the currency of the agreement, was a reasonable notice. WILSON Y. TAVENER. (1901) 1 Ch. 578; 70 L. J. Cli. 263 ; 84 L. T. 48. AGREEMENT Not to Compete.— A corporation invited tenders for the supply of a large quantity of stone. Four quarry owners agreed among themselves, that one of them was to tender at a low price, two were to tender at higher prices than the first-named, and the fourth was not to send in any tender ; and that the owner whose tender was the lowest, and which would be accepted, was to buy the stone from the other three owners at a fixed price. The last- named owner, in breach of the agreement, sent in a tender which was accepted. The plaintiff, the owner first named, sought an injunction to restrain the other two owners from supplying the corporation, directly or indirectly, with stone, and Bacon, V.C., held, that the agreement not to contract was not void, and that the in- junction might be granted without making the corporation parties. JONES V. NORTH. (1875) L. E. 19 Eq. 426 ; 44 L. J. Ch. 388 ; 32 L. T. 149; 23 W. R. 468 AIR The plaintiff sought an interim injunction against a building owner in respect of the stoppage of, or interference with, the free current of air to the plaintiffs premises by the erection of certain buildings in Drury Lane, and Fry, J., granted an injunction. DICKEY V. PFEIL. Fletcher's Light and Air, p. 14. To Chimneys. — The plaintiff and the defendants occupied adjoining houses. The occupiers of the plaintiff's house had for more than twenty years enjoyed access of air to the chimneys thereof. The defendants, in rebuilding a wall on their premises, raised it to such a height as to cause the chimneys of the plaintiff's house to smoke. The jury foimd for plaintiff in his action against the defendants in respect of the easement of air claimed, and on the ground of nuisance, and Lord Coleridge, C.J., ordered judgment to 10 AIR be entered for the plaiutill'. On appeal by the defendants, the Court (Bramwcll, Brett, and Cotton, L.J J.) reversed the judgment of Lord Coleridge, and held, that no action Avas maiutainalde by the plaintiff against the defendants, either on the ground of ease- ment, or of nuisance. lUlYANT V. LEFEVER (1879) 4 C. P. I). 172; 48 L. J. C. V. 380; 40 L. T. 579; 27 W. R. 592. Drying Sheds. — The plaintiff was lessee of certain land and buildings thereon, and sought to restrain the defendants, the owners of adjoining land, I'rom interference with the access of air to his premises, by the erection of buildings upon their property. Botli parties derived their title from a person who had carried on the business of a mason and timber merchant on premises of which he was owner in fee. lie demised two pieces of ground and certain l)uildings to the plaintiff, who covenanted to cany on the owner's timber business up(jn the premises. The owner covenanted for quiet enjoyment, and that he would not be interested in any timber business within twenty miles of the plaintiffs premises. Some years later the owner demised to the pluintilT, at a certain rent, a shed. The owner remained in occupation of the adjoining pro- perty until his death, when the whole of his estate was sold to the defendants by his devisees, including that demised to the plaintiff. The defendants erected an extensive electric light generating station, which interfered with the access of air to the plaintiff's drying sheds. The plaintiff brought an action to enforce his rights, and Stirling, J., held, that the defendants were not entitled to build so as to interrupt the access of air to the sheds of the plaintiff, and interfere with the carrying on of the business in ordinary course; and that as the licence from the owner to the plaintiff to construct certain ventilators in one of the walls was revocable, the plaintiff was not entitled to an injunction, but to damages, in respect of the ventilators being obstructed without reasonable notice. ALDIN V, LATIMER CLAllK, MUIRHEAD (S; CO. (1894) 2 Ch. 427; 63 L. J. Ch. GOl ; 8 E. 352; 71 L. T. 119; 42 W. 11.453. Drying Sheds. — A firm of timber merchants, holding under a lease granted in 1833, stored and seasoned their timber in certain structures, erected before 1843, substantially constructed and roofed, but open at the sides for the purpose of admitting light and air. A "traveller" for handling the timber, supported npon AIR 11 solid brick piers, was erected in the same year, and projected nine inches over the back yard of the defendant, who held under a lease granted in 1831. In 1885 the defendant agreed with the freeholder to rebuild the premises at a certain cost, in consideration of which he was to surrender the existing lease, and receive a new lease of the premises for ninety-nine years. Pursuant to the said agreement, the defendant commenced to build, and cut away so much of the plaintiffs " traveller " and premises as overhung the defendant's premises. The plaintiff then sought an injunction restraining the defendant from building so as to obstruct the free passage of light and air, both of which were necessary to the plaintiff's business, and from interference with the overhanging premises. Chittij, J., held, that the structure was not a " building " within the meaning of § 3 of the rrescription Act, 1832, that the plaintiff was not entitled to an easement of air, and he refused any relief. The plaintiff appealed, and fresh evidence was given by consent, and the hearing of the appeal treated as the trial of the action. The Court {Cotton, Bourn, and Fry, L.J J.) held, that an easement of air, not coming by any definite channel, but over the general surface of an alleged servient tenement, cannot be acquired under § 2 of the Prescription Act, 1832, by mere enjoyment for the statutory period ; that in order to acquire an easement of light under § 3, it must be shown that the light has reached the building in respect of which the easement is claimed uninterruptedly, by one and the same definite channel, for the statutory period ; and that, in the circumstances, the plaintiff could not show that they were entitled to an injunction. HARRIS V. DE PINNA. (1866) 50 J. P. 486 ; 33 Ch. D. 238 ; 54 L. T. 770 ; 56 L. J. Ch. 344. Through adjoining Cellar. — The cellar of a public-house had been for forty years uninterruptedly ventilated, by means of a hole cut through a certain rock into an old well, situate in a yard occupied by the defendant. The latter removed a grating from the hole, and prevented the free passage of air from the cellar upwards through the well. The occupiers of the yard had knowledge of the easement enjoyed by the plaintiff. PoUoch, B., held, that the plaintiff, as against the defendant, could claim the easement of the free passage of air from the cellar, and that the lost grant claimed by the plaintiff ought to be infen'ed. BASS V. GREGORY. (1890) 55 J. P. 119 ; 25 Q. B. D. 481 ; 59 L. J. Q. B. 574. 12 AIR Windmill. — The |)liiiiitiff owned a windmill, and the defen- dauL ereciud a liuuse within two feet of the same, so as to obstruct the access of air thereto. The jury found tliat the house was a nuisance, and the Court ordered that thai part of the house which was a nuisance should be abated. TUAHERN'S CASE. (1613) Godb. 221. Windmill. — The owner of a windmill sued a School Board for erectiug school premises so near to the mill as to obstruct the free passage of air enjoyed thereto for more than twenty years, and he obtaiued damages, subject to an award. On a case stated, however, the Court {Erie, C.J., WiUcs, Byles, and OWallci/, JJ.) held, that the owner of a windmill cannot claim, either by prescription or pre- sumption of a grant from twenty years' acquiescence, to be entitled to currents of wind and air to his mill. Such is not within § 2 of the Frcscrljption Act, 1832. On error, this decision was affirmed in the Exchequer OhvanhQV {Wightman and Blackburn, JJ., and BramwcU, Channcll, and Wilde, B.B.). WEBB V. BIBB. (1861) 10 C. B. (N.s.) 268 ; 13 C. B. (n.s.) 841 ; 30 L. J. C. P. 384 ; 31 L. J. C. P. 335 ; 9 W. li. 899 ; 4 L. T. 445 ; 8 Jur. 621. ALTERATIONS Old Building. — A firm of builders were employed to make certain openings in a wall dividing two houses, and the work was completed in August, 1862. In the following December notice was served on the builders that the work was not conformable to the Mdropolltan Building Act, 1855, which required any opening made in a party-wall between two Ijuildings, which taken together contain more than 216,000 cubic feet, to have lloor-jamb and head formed of brick, stone, or iron, and the opening closed by wrought- iron doors, etc., and they were required to make the same comform- able thereto. In default a summons was taken out, and the defendants urged that it was not a new building, and, therefore, that the Act did not apply, that the work was not an " alteration," and that the wall was a cross-wall, and not a party-wall. The magistrates convicted the defendants. On hearing a case stated, the Court {Cocldiurn, C.J., and others) affirmed the conviction. ASHBY V. WOODTHOBP. (1863) 33 L. J. M. C. 68; 9 L, T. 409 ; 12 W. 11. 209. ANCIENT AND OTHER LIGHTS 13 ANCIENT AND OTHER LIGHTS Abandonment of.— Au old wooden tbree-storey toll-bouse stood out, so that its frontage was at an angle to the rest of the buildings in the street. The ground floor was used as a shop, the window of which was about the width of the shop, and situate 3 feet above the ground. This house was demolished, the projecting part of the site being acquired l)y the vestry for the purpose of straightening the street, and the owner liuilt a one-storey building on the remaining ground, carrying back the frontage several feet to the line of the buildings in the street, and fixing in the front wall a window corresponding, practically, to that in the old house. The owner brought an action to restrain an alleged interference with the access of light to this window, and the defendant alleged that, owing to the above-mentioned facts, the plaintiff had lost or abandoned his right to the ancient light. Kay, J., held, that the right to the ancient light had not been lost. BULLEBS V. BICKIXSON. (1885) 29 Ch. D. 155 ; 54 L. J. Ch. 776 ; 52 L. T. 400 ; 33 W. E. 540. Accruing and Inchoate Eights. — The plaintiff's house was l)uilt in 1867. Ten years later the corporation purchased land under the provisions of the Artizans' and Labourers' Diuellings Improvement Act, 1875, and sub-let a portion thereof, opposite the plaintiff's house, for a term of years, to the defendant. In 1888 the defendant, pursuant to the conditions of his lease, cleared the site, and erected buildings thereon, higher than the previously existing buildings, which obstructed the access of light to the windows of the plaintiff's house. Haivhins, J., gave judgment for the defendants. The plaintiff appealed, and the Court {Lord Coleridge, C.J., Lord Eshcr, M.B., and Fry, L.J,) held, that § 20 of the Avt applies to the easement of light, and applies to rights accruing under the Brescription Act, 1832, and had the effect of extinguishing; inchoate rights and rights of easement already acquired over the lands purchased under the Act ; and that, therefore, the plaintiff did not gain an easement by reason of such twenty years' enjoyment. BABLOW Y. BOSS. (1890) 54 J. P. 660 ; 24 Q. B. D. 381; 50 L. J. Q. B. 183; 62 L. T. 552 ; 38 W. B. 372. Acquiescence. — The sub-tenant of a workshop had enjoyed the access of light through a window therein for twenty-six years. The adjoining owner erected, in May, 1872, a shed within 1 foot 14 ANCIENT AND OTHER LIGHTS 7 inches of the window, and obstructed the access of light thereto. The sub-tenant complained to the tenant, who complained to the adjoining owner's son. The latter alleged the occupier's right to erect the shed, and refused to remove it. The tenant ultimately wrote on January 3, 1873, to the lessor, who then, for the first time, learned of the ol)struction. An action for an injunction was commenced on July 3, 1873, and Lord Coleridge, CJ., entered judgment for the plaintiff. On hearing a rule, the Court (Dnit and Grove, JJ.) discharged the rule, but held, that whether or not there had been submission to or acquiescence in the interruption so as to deprive the plaintiff of his right to light, was a proper question for the jury. In order to negative acquiescence, it is not necessary to have brought an action ; it is enough to show that the plaintiff has in a reasonable manner intimated to the party that he did not acquiesce. GLOVEll V. COLEMAN. (1874) L. 11. 10 C. P. 108 ; 44 L. J. C. P. GG ; 31 L. T. G84 ; 23 W. R. 1G3. -Acquiescence and Delay. — A cabinet-maker had used for many years a workshop at the rear of his premises in which were ancient lights. The owner of certain out-buildings, separated by a party wall distant from the workshop 8 feet, began to pull them down iu February, 1875. The plaintiff wrote, complaining of the party wall lieing raised on March 11, and on March 15 his solicitor demanded that the wall should be pulled down, and served formal notice to that effect. The defendant, however, continued to build, and on I^Iarch 17 the wall stood 2G feet high. On March 19 the cabinet-maker filed a bill, asking a mandatory injunction, and Jessel, M.E., held, that the plaintiff had nut lost his right to relief by delay or acquiescence, and granted a mandatory injunction for the removal of the additional building. SMITH V. SMITH. (1875) 20 Eq. 500 ; 44 L. J. Ch. 630 ; 32 L. T. 787 ; 23 W. P. 771. -Acquisition of Easement. — The plaintiff owned a house standing witliin 4 feet of the boundary of his premises, and for thhty-eight years certain windows which it contained overlooked the adjoining premises. Two years before the date of the writ, the purchaser of the adjoining premises built a house within 5 feet of the plaintiff's Ijoundary, and thus interfered with the access of light and air to the plaintiff's windows. In an action against the purchaser for the obstruction, Holroyd, J., directed a verdict for ANCIENT AND OTHER LIGHTS 15 the plaintiff, aud held, that the windows were ancient lights. On motion for a new trial, the Court {Abbott, C.J., Bayley, Littledale, and Holroyd, J J.) held, that the question was not affected by the fact that tlie plaintiff's house was not at the extremity of the boundary, and tluit thirty-eight years' enjoyment, in the absence of evidence to the contrary, constituted the windows ancient lights. CROSS V. LEWIS. (1824) 2 B. & C. 686 ; 4 D. & R. 234 ; L. J. (o.s.) K. B. 136. Action by Executors. — The plaintiff owned two freeliold houses in respect of which he claimed ancient lights. The defendant's predecessor in title, who owned certain houses directly opposite to those of the plaintiff, altered them so as to interfere with the plaintiff's ancient lights. More than six months after the completion of the works the predecessor in title died, and some months later the plaintiff brought an action against the defendants, to whom letters of administration had been granted. They in their defence pleaded and relied on § 2 of the Statute 3 cC- 4 WiJl IV. c. 42. Kehcwich, J., held, that the continuance of an obstruction to ancient lights is an "injury committed" in respect of property within the meaning of § 2 of 3 & 4 Will. IV. c. 42, giving rise to a cause of action de die in diem, and, therefore, an action in respect of the continuance of the obstruction in the lifetime of the person who caused it, may be maintained against his executors or administrators, notwithstanding that the obstructing building was completed more than six calendar months before his death. JENKS V. CLIFDEN, VISCOUNT. (1897) 1 Ch. 694 ; 66 L. J. Ch. 338 ; 76 L. T. 382 ; 45 W. E. 424. Action by Executors. — The owner of certain freehold pre- mises claimed an injunction and damages against the defendant for obstructing the access of light thereto. About ten months after the writ was issued the owner died. The plaintiff, the sole executor of the owner, obtained the common order to carry on the proceedings. The defendant moved to discharge the order, on the ground that the cause of action did not survive, and Chitty, J., dismissed the motion, and held, that though by the Act 3 tfe 4 Will. IV. c. 42, § 2, an executor's right of action in respect of injury to the real estate was limited, the right to have the obstruction to light 16 ANCIENT AND OTHER LIGHTS removed was an equitable riglit, subsisting in the plaintiff at the time of death, which devolved to the plaintiff as devisee. JONES v. SIMES. (1890) 43 Cli. D. 607; 59 L. J. Ch. 351 ; C2 L. T. 447. • Action lies by Owner v. Lessee. — Upon a rule nisi, to show cause why judgment should not be arrested, it appeared that the action was an action on the case, and was brought by the owner of a house against his own lessee, for stopping up divers windows therein; the Court {Lee, C.J., Wright, Denison, and Foster, J J.) held, that an action on the case will lie by the owner of a house against his lessee for stopping u}) windows. THOMLINSON v. BROWN. (1755) Say. 215. Action in Lieu of Arbitration. — A railway company's Act provided that they could not take, injure, etc., any house erected before November 30, 1835, without the owner's permission signified in writing, and that compensation should be paid to the owners. The company erected a railway station and obstructed the lights of, and did other damage to, certain premises built before that date, the reversioner of which brouglit an action for damages against the company. The Court (Parle, B., and others) held, in a considered judgment, that the company were liable in an action on the case, and that the plaintiff was not bound to come in under the arbitration clause. TURNER V. SHEFFIELD, cfr., RAILWAY CO. (1842) 10 M. & AV. 425 ; 02 E. E. G5G ; 3 Eail. Cas. 222. -Addition to Dimensions of. — A nundjer of cottages had windows wliich were ancient liglits. On inquiry it was found that certain of the cottages projected into the land of the defendant, at whose request they were set back, the windows in the new walls being of the same size as those in the old walls, and in the same relative position. In the case of one cottage, however, an addition had ]jeen made, involving the erection of a wall with a windov?- in it outside, and at a different angle to, the old wall and window ; but the old window still remained inside the addition, and continued to have access of light over the defendant's land. On a special case settled by an arbitrator, the Court {Coelchiirn, C.J., and Lopes, J.) held, in a considered judgment, (1) that the easement of light was not destroyed by setting back the windows, and (2) that the ANCIENT AND OTHER LIGHTS l7 right to the access of light to the old window within the addition was not lost. BARNES V. LOACH. (1879) 4 Q. B. D. 491 ; 48 L. J. Q. B. 75G ; 41 L. T. 278 ; 28 W. E. 32. Alteration and Enlargement of. — The owner of certain premises erected a wall GO feet high and 50 feet long, and thereby obstructed the access of light and air to the adjoining premises. The windows of the latter had been altered and enlarged more than twenty years previously. On a rule nisi, obtained by the defendant, for an injunction, the Court {Lord EUenhorougli, C.J., Grose, Lc Blanc, and Baijlcij, JJ.) held, that where lights had been put out and enjoyed without interruption for twenty years during the occupation of the opposite premises by a tenant, the rights of the landlord of the opposite premises to light and air are not barred thereby, without evidence of his knowledge of the fact, which is the foundation of the presumption of a grant ; and con- sequently will not bar a future tenant from building up against such encroaching lights. DANIEL V. NOBTH. (1809) 11 East 373. Altered Position and Increased Number of. — The owner of a certain house enlarged it, inserting a window at one end of the addition, and at the other, where there were two windows, he formed two bow-windows. The former owner of the building estate on which the house stood, and after the enlargement of the house, had joined in the assignment of the premises to the pur- chaser who carried out the enlargement. In an action by the successor in title to the occupier who had enlarged the house, against the defendant who claimed under the owner of the building estate, for an injunction to restrain interference with the lights of the enlarged house, Bosanquct, J., entered judgment for the plain- tiff. On a rule, the Court {Battcrson, Williams, and Colcridjc, J J.) held, that whatever privilege against the obstruction of light the old house possessed, this privilege did not apply to the three new windows ; and that neither the owner of the estate nor his assigns were precluded from obstructing the light to the three windows by building on the adjoining land, because the owner joined in the conveyance of the house. BLANC HARD v. BBIDGES. (1835) 5 L. J. K. B. 78 ; 5 K & M. 5G7 ; 4 A. & E. 176 ; 1 H. & W. 630. M.B.C, G 18 A^X'IE^;T and other lights Altered Position and Number Increased. — The lessees of certain premises in the City of Loudon had power to rebuild. The lessees were the defendant's tenants of the adjoining premises, but as negotiations for purchase fell through, they remained on as tenants on condition that they would pull down and rebuild the party wall. lu the course of re-erecting their premises and the parly wall, the agreed plan, to the knowledge of the defendant, was considerably deviated from, the position of the liglits altered, and new lights opened. The defendant gave notice to the lessees, under the Metropolitan Building xUt, 1855, of his intention to raise the party wall 20 feet higher than it had previously stood, so as to form the wall of two new storeys, and thus interfere with the lessees' new lights. The lessees filed a bill to restrain the defendant from building as he proposed, and Romilly, M.B., held, that as the defendant knowingly permitted the premises to be rebuilt of an increased size and height, with altered and new lights, he cannot object to them after they are erected, or assert a right to raise a party wall on his own premises to interfere with the access of light and air to the new buildings. COTCHING V. BASSETT. (1862) 32 L. J. Ch. 280 ; 9 Jur. 590 ; 32 Leav. lOl ; 11 W. K. 197. Altered Position and Inci eased Size. — The phdnlill's and the defendants possessed premises opposite to each other in the city of London. The plaintiffs' premises, which had ancient lights, were burned down, and, in the building erected on the site thereof, windows were placed in different positions, of different sizes, and occupying a greater space, than the ancient lights. Tarts of the new corresponded with parts of the old lights, but the greater portion of the old and new windows did not coincide. In an action against the defendants for obstructing the access of light to the new windows, the Court {Crompton, Brainwcll, Chcmncll, Hill, and Blackburn, JJ.) held, in a con- sidered judgment, that as none of the new windows occupied the same position as any one of the ancient windows did, no rights A\cre acquired in respect of any of them, and atfirmed the judg- ment ol' the Co\ut of Common Pleas in favour of the defendants. HUTCHINSON V. COBESTAKE. (1861) 9 C. B. (N.s.) 863; 31 L. J. C. P. 19; 8 Jur. 54; 5 L. T. 178 ; 9 W. E. 896. Altered Position of. — The plaintiffs were the lessees of certain premises on a long lease, and the defendants were the ANCIENT AND OTHER LIGHTS 19 owners of premises L(j Llie east and Llie north ol" the pluintiflV promises. Tlie plaintiffs rehnilt their premises in 1870, setting back tlic u})per Hoors of their east front 5 feet 8 inches, the plane of the new building being parallel to, and the windo\\s of the new building nearly corresi)()nding witli those of, the old building. In substitution ibr an old dormer wind(nv in the ground floor, the plaintiffs put in the new building a skylight, partially coextensive Mitli the old window, but of a different sliapc, in order to comply with requirements of tlie Metropolitan Build- ing Acts. In 1876 the defendants began to rebuild so as to obstruct the access of light to the windows in the east face of the plaintiffs' building and the skylight, and the plaintiffs sought an injunction to restrain the interference. Jcsscl, MM., held, that any sul)stantial alteration in the plane of the windows destroys the right to light, and refused an application for an interlocutory injunction. On trial of the action, Frij, ./., held, that the right to access of light to the dormer window was not lost ; the riglit remains where any portion of the light which ^^'ould have passed over the servient tenement tln-ough the old \\indows passes also through tlie new windows. He, however, refused a mandatory injunction and granted damages. NATIONAL PROVINCIAL PLATE GLASS INSUP- ANCE CO. v. PEUDENTTAL INSURANCE CO. (1877) 6 Ch. D. 757; 46 L. J. Ch. 871; 37 L. T. 01 ; 26 W. R. 26. Altered Position of. — The plaintiffs were owners of a lari^c block of buildings in the City of London, one front of which was in a street only 12 feet wide. The defendants proposed to erect, on the opposite side of the street, a pile of lofty buildings, which would oljstruct the access of light to certain ancient lights in the plaintiffs' premises. The plaintiffs brought an action for an injunction to restrain the defendants from causing the threatened obstruction. The plaintiffs' block had only been erected in 1867, but it was erected on the site of a building which had forty-four windows looking into this street, the plaintiffs' block having forty-two windows. I'hotographs, taVeu before the old building was pulled down, and of the new building, showed that a few of the new M-indows on the ground floor ^\■ere in substantially the same position as those in the old building, but the greater number of the new %vindows occupied only part of the spaces of the old windows, and extended beyond them, on one side or the other ; while some of the new windows were in different positions from any of 20 ANCIENT AND OTnER LIGHTS the old -windows, and some of the latter were closed up. Bacon, V.C., granted an injunction, and the defendants appealed. The Court {Baifjallay, Cotton, and TAndlcy, L.J J.) held, that the plain- tiffs had shown an intention to preserve and not to ahandon their ancient lights, and, on the l)alance of convenience, granted the injunction initil the hearing, affirming the order oi Bacon, V.C. NEWSON V. BENDER. (1885) 27 Ch. I). 43 ; 52 L. T. 9 ; 33 W. li. 243. Altered Position of. — The plaintiffs were ground landlords of certain premises built on the site of a public-house and other premises, in 1876, and the line of frontage was then rectified. The premises consisted of three floors, and on each floor there were six windows or doors, 8 feet 8 inches wide and 2 feet 3 inches apart. The plaintiffs brought an action for an injunc- tion to restrain the defendants from erecting new buildings on the opposite side of the street, so as to obstruct the access of light to the plaintiffs' premises, as such light had been enjoyed before the erection of the present buildings. The strongest evidence that the access of light to the existing building of the plaintiffs coincided with the access of light to the old buildings, was contained in an affidavit, but it was not shown which parts of the new windows coincided with the old lights. North, J., held, that where a new building has been erected upon the site of an ancient building, in order to entitle the owner of the new building to access of light, it is necessary to show that some definite part of an ancient window admitted access of light tln-ough the space occupied by a deiinite part of an existing window. BENDARVES v. MUNRO. (1892) 1 Ch. Gil ; Gl L. J. Ch. 494. Alteration of Mode of Enjoyment. — The owner of a barn converted it into a malt-house, and formed windows in certain apertures by which chiefly the barn had been lighted. In an action for an injunction against the adjoining owner, who had erected a high fence obstructing the access of light to the windows of the malt-house, evidence was offered by the defendant to show that the mode of enjoyment had been essentially altered by the ])laintiff to the prejudice of the defendant. Tindid, C.J., rejected the evidence, and the jury found for the plaintiff. On hearing a rule for a new trial, the Court {Lord. Dcnman, C.J., LitllcdaU and Coleridge, JJ.) held, that the evidence was admissible, as it might I ANCIENT AND OTHER LIGHTS 21 have proved that the plaintiff had altogether lost his right to the easement, and a new trial was ordered. GABRITT V. SHARP. (1835) 3 A. & E. 325 ; 4 X. & M. 83-4 ; 1 IT. & W. 220. Alteration not Abandonment. — The plaintiff was lessee, for a term of years, of certain workshops erected in 1872, and so designed as to preserve the ancient lights of the buildings which previously stood on the site. The workshops were a storey higher and projected into a certain yard 2 feet further than the old buildings. On the opposite side of the yard there was a wall, and in certain building operations the owner thereof raised the said wall, making it part of the new buildings, and obstructing the access of light and air to the plaintiff's premises. The plaintiff, thereupon, brought an action for an injunction against the defendant, and Bacon, V.C., held, that the lights were ancient, and that the defendant's wall interfered substantially therewith ; the mere alteration of a building with ancient lights, without evidence of abandonment, does not imply abandonment of rights acquired under the BrcscrijJtioii Act, 1832, to the access of light to a building, substituted for the original building ; the discretion given by § 2 of Lord Cairns' Act to award damages in lieu of an injunc- tion, must be exercised according to the facts of the particular case ; the Court will not compel a plaintiff to accept compensation instead of an injunction, in a case where the defendant has erected a building causing substantial interference. GBEENWOOB v. EOBNSEY. (1886) 33 Ch. D. 471 ; 55 L. J. Ch. 917; 55 L. T. 135 ; 35 W. E. 163. Alteration not an Abandonment. — The owner of certain old buildings, lighted by a number of ancient lights, pulled down the same in 1872, and erected new ones of greater elevation, liglited by larger and more numerous windows looking into an adjoining lane. The east wall of the new buikling was advanced so as to reduce, to a uniform width of 4 feet, the lane of a previous width varying from 7 feet 5 inches to 5 feet 7 inches. In 1883 the defendant pulled down, and re-erected at a greater elevation, certain premises on the side of the lane immediately opposite, which obstructed the access of light to the plaintiff's premises. No record was kept of the exact position of the windows of the plaintiff's old buildings, but their position had to some extent been ascertained. The plaintiff claimed an injunction to restrain the defendant from interferincr with certain of the lights of the new 22 ANCIENT AND OTHER LIGHTS building, and North, J., held, that the pLiiiitiff ^vas entitled to an injunction in respect of the ancient lights " \vhich Avere enjoyed l»y means of those portions of tlie windows on tlie iirst floor of the l»laintilTs old buildings, which have not been l)locked up in the re- building of the plaintiff's premises." The defendant apjjcaled, and the Court (Cotton, Boiocn, and Fry, L.JJ.) held, that the alterations did not amount to an abandonment of the plaintiffs rights, ami they gi-anted an injunction in respect of so much of six new ^^•indows as corresponded witli the tlirec ancient lights. SCOTT V. PAPE. (1886) 50 J. r. G45; 31 Cli. 1). 554; 55 L. J Ch. 426; 54 L. T. 399 ; 34 W. E. 465. ■ Angle of 45''. — A dwelling-house had windows on the first and second iloors at the rear wldcli were ancient lights, the light to which entered at an angle of 45^ ^^•ilh the horizon. The adjoining owner had commenced to build a wall, designed to stand 42 feet in height, or 12 feet higher than the existing wall, and to be the external wall of a large block of buildings, so as to interfere with the access of light to the plaintiffs premises. In an action for an injunction, Stuart, V.C., held, that the Court will not, in an ordinary case, restrain the erection of a building, the height of whicli al)0vc an ancient light is not greater than the distance from the liglit, but in tlio circumstances he granted a mandatory injunction. BEADEL V. PERRY. (1866) 3 Eq. 465 ; 17 W. W. 185 ; 19 L. T. 760. -Angle of 45^ — The plaintiff was the owner of certain premises in the City of London, and carried on the business of furniture manufacturer in two of the houses, the remaining premises being let for business purposes. The street was from 34 to 38 ^ feet wide ; the foot of the plaintiffs ground-floor windows was 5 feet above the street level, and the centre of the window 3 feet higher, the foot of his first-floor windows being 16 feet from the ground. The height of the houses was 45 feet. The defendant proposed to erect a warehouse opposite 52 feet high, part of which only subtended an angle of 38°, and part an angle of 27°, above the horizon at the centre point of the plaintiff's ground-floor windows. In an action for an injunction, Jessel, M.R., held, that the plaintiff was entitled to restrain the erection of buililings which would obstruct the access of light Ijelow an angle of 45". HACKETT V. BAISS (1875) 20 Eq. 494; 45 L. J. Ch. 13. ANCIENT AND OTUER LIGHTS 23 Angle of 45°.— A pliotographer used the upper part of cer- tain premises for taking pliotographs in, and had a prescriptive right to light through two windows looking west. A company- proposed to erect, upon tlie adjoining premises, a large building which, the plans showed, would materially affect the light to these two windows. The photographer sought an injunction to restrain the company from so building, and North, J., granted an injunction to restrain the company from raising their building to a greater height than 3 feet above the sill of the two windows in question, but the company were not to be restrained from putting on a sloping roof of greater height, so long as the angle of inci- dence of light over such sloping roof to the centre part of the photographer's windows be not less than 45^ from the perpen- dicular above the point of incidence, etc. The plaintiff appealed, and the Court {Cotton, Brett, and Bowcn, L.J J.) held, that the plaintiff was entitled to judgment in general terms, unless there is some special evidence justifying the insertion of a clause referring to the angle of incidence ; there is no conclusion of law that a building will not obstruct the light coming to a window, if it permits the light to fall on the window at an angle of not less than 45° from the vertical. PARKER V. FIRST AVEXUE HOTEL CO. (1883) 24 Ch. D. 282 ; 49 L. T. 318 ; 32 W. E. 105. Blocking up not Abandonment.— The plaintiff was owner of certain ancient windows which had been blocked up by his pre- decessor and remained blocked up for nearly twenty years. He opened them again to assert his rights, and the owner of the land adjoining obstructed them. On trial of an action for this obstruction, Martin, B., directed the jury that the right to light once acquired continued, unless lost, and that if they thought the right had been acquired, they should find for the plaintiff, unless they thought his predecessor, in blocking them up, manifested an intention to permanently abandon his right to light, or that the lights, being kept closed, led the defendant to believe the lights had been abandoned. The jury foimd for the plaintiff, and a rule nisi for a new trial, on the ground of misdirection, was discharged by the Court {Lord Campbell, C.J., and Erie, J.). STOKOLE V. SINGERS. (1857) 3 Jur. 1256 ; 8 E. & B. 31 ; 20 L. J. Q. ?,. 257 ; 5 W. E. 756. Borrowed Light. — A grocer occupied a certain house for the purposes of liis trade, and used a building at the rear 15 feet 24 ANCIENT AND OTHER LIGHTS beyond the main wall of the house as a counting-house. The couutiug-house looked towards a narrow court, and was lighted by a single ^^■indo^v 9 feet by 4 feet 5 inches, and separated from the shop by a glass partition which admitted borrowed light to the back of the shop. There was a window in the basement under the counting-house, and on top a greenhouse, through which borrowed light was admitted to the back room on the first floor of the house. In an action by the grocer, Lord Romilly, M.R., after inspection, granted an injunction, restraining the defendant from building to a greater height than that of the buildings which had been on the site, so as to interfere witli the lights of the plaintiff. On appeal, Lord Westhicrj/, L.C., after inspection, dis- sulci'd the injunction, and gave damages, and held, that to justify the Court granting an injunction the obstruction should be such as to render the premises to a material extent less suitable for the trade carried on therein, and diminish their value for the purposes for which they are used at the time. Speculative injury cannot be taken into account. JACICSON V. DUKE OF NEWCASTLE. (18G4) 33 L. J. Ch. 698 ; 3 De G. J. & S. 275 ; 10 Jur. 810 ; 12 W. E. 10G6 ; 10 L. T. 802. • Builder under Building Agreement cannot grant Easement. — A builder ciitcrud into a building agreement with the Eccle- siastical Commissioners uiuler which he was entitled to a lease of each of a number of building plots as soon as he had erected thereon a house according to an ajjprovcd design. By a term in each lease the Commissioners reserved to themselves the light to erect any buildings whatever on the land adjoining the demised premises, Mliether or not such should interfere with the lights of the defendant's houses. The purchaser of one of these houses brought an action against the builder for erecting upon the adjoining plot a house M'hich obstructed the lights of the plaintiff's house, and Kelccwich, J., assessed the damages at £33. The defendant appealed, and the Court (Collins, MM., Llomcr and Cozens- Hardy, Tj.JJ.) reversed the decision below, and lield, that the defendant, at the time wlicii lie sold llie hoiisu to the plaintiff, had not under the building agreement such an interest in the adjoinino- ]ilot as would enable him to make an express grant of an easement of light over it, and that, therefore, no such grant could be iinjilied. QUICKE V. CHAPMAN. (1903) 1 Ch. 659; 72 L. J. Ch. 373; 88 L. T. 610; 51 W. E. 452. ANCIENT AND OTUER LIGHTS 25 . Builder Indemnified.— Certain premises were conveyed in fee simple to a purchaser, who subsequently mortgaged them. The mortgagee sold them, conveying part thereof in fee simple to the plaintiffs predecessor in title, and the remainder in fee-simple to the defendant. In an action for trespass, and for an injunction to restrain the defendant and his builder from building so as to interfere with the access of light to the plaintiff's vinery, the builder severed his defence and appeared by separate coimsel at the trial, and ByrnCy J., granted the injunction, with costs against the adjoining owner, and held, that in the circumstances, the builder was entitled to complete indemnity, and to an order for payment of his solicitor and client costs by his co-defendant. BOllN v. TURNER, (1900) 2 Ch. 211; G9 L. J. Ch. 593; 83 L. T. 148; 48 W. E. 697. Building Estate. — By a building agreement between the owner of a building estate and a builder, it was agreed that for twenty-seven calendar months, from January 19, 1884, the latter might enter upon certain plots of land, numbered 1-44 on plan, for the purpose only of building and executing the w^orks therein mentioned. Pursuant to the agreement a block of mansions was erected by the builder, with the concurrence of the owner of the building estate, upon plots 10, 11, 12, and part of 30. To the west of the mansions were the rest of plot 30, plot 29, and plots 28, 27, and 26, referrred to hereafter collectively as the adjoining land. The builder contemplated erecting a corresponding block on the adjoining land mentioned, and laid the foundations of same with the concurrence of the owner, after commencing the first block. The western ^^'all of the first block was built as a party wall for half its length, the remainder being set back from the western boundary so as to leave unbuilt upon an area of 4 feet in width next to the adjoining land. The foundations on the adjoining land were similarly laid so that the two areas together would form a court with no buildings thereon. In exercise of an option the builder took a conveyance in fee instead of a lease of the first block wdien l)uilt, dated May 5, 1886. The plan showed clearly the court referred to, and the conveyance by virtue of § 6 (2) of the Conveijancing Act, 1881, operated as conveying together with the mansions all lights appertaining thereto or enjoyed therewith at that date. In May, 1886, the builder mortgaged the premises, the mortgagees having full notice of the building agreement. In September, 1886, this mortgage was con- veyed to other mortgagees. In 1891 the premises were bought by 26 ANCIENT AND OTHER LIGHTS the owner of the Luildmg estate and settled by liim, the plaintiffs in tlie action being the trustees of the settlement. Tlie defendants in possession of the adjoining land as successors in title to the builder and tlie owner, commenced to erect buildings at a distance of 13 feet from the west wall of the block of mansions so as to obstruct the light coming to the windows of the mansions. The jdaintiffs claimed an injunction, and Joyce, J., held, that having regard to the circumstances existing at the date of the conveyance of May 5, 1886, it did not as against the owner pass to the builder any right to have the access of light unobstructed by any future building on the adjoining ground. Bmninf/ham, &c., Banking Co. v. Boss (38 Ch. D. 295) followed. GODWIX X. SCEWEPBES, LTD. (1902) 1 Ch. 926; 71 L. J. Ch. 438; 86 L. T. 377; 50 W. E. 409. Building Scheme. — The ])la in tiffs were assignees, for value, of tlie lease of a piece of land and recently erected buildings thereon, " with the rights, members, and appurtenants, to tlie said premises belonging," granted by the Birmingham Corporation, who covenanted to maintain open a passage adjoining, 20 feet in width. On the opposite side of the passage the buildings then existing were only 25 feet high. The defendant demolished the last-mentioned buildings, and commenced to erect a block of buildings, 80 feet in height, upon the site pursuant to a building agreement entered into by him \w\i\\ the Birmingham Corporation. Both premises formed part of a larger plot of land laid out under a building scheme. The plaintiffs brought an action for an injunction to restrain the defendant from interference with the access of light to their premi.se.s, and Kckeiuicli, J., held, that the grantee of the plaintiffs' premises knew that the grantor intended to use the land on the opposite side of the passage for the particular purpose of building houses for business purposes, and gave judgment for the defendants, who appealed. Tiie Court {Cotton, Lindlei/, and Boiven, L.JJ.) affirmed the judgment of Kel-eicich, J., and held, that there was no expressed or iiniilied grant, in the plaintiffs' lease, of a right to uninterrupted light to the new buildings. BJBMINGHAM, DUDLEY o paid. The adjoining owner did not sign tlie document, but it was not disputed that sixpence a year had been paid to liim under the document down ANCIENT AND OTHER LIGHTS 4d to 185-4:; but there was no evidence of any payments later than 1859. In 1877 the adjoining owner's successor in title calhnl upon the owner's successor in title, wlio had bought the property with notice of the document, to block up the four windows, and he proceeded to obstruct tlie light thereto. In an action by the plaintiff for an injunction to restrain him from so doing on the ground of having acquired a prescriptive right, Hall, V.C, dia- misscd the action. The plaintiff appealed, and the Court {James, Bag g allay, \and Thcsigcr, LJJ.) held, that the enjoyment of the light was only by virtue of the document of 1814, expressly given for the purpose of such enjoyment within the meaning of § 3 of the Prescription Act, 1832, to prevent any rights being acquired ; and that the agreement, having been acted upon by payment of rent thereunder, within twenty years from the date of the writ, was enforceable in equity, irrespective of the statute. BEWLEY V. ATKINSON. (1880) 13 Ch. D. 283; 49 L. J. Ch. 153; 41 L. T. G03; 28 W. E. 638. Leave and Licence. — In 1816 M., the owner of two cottages and land adjoining, conveyed the cottages in fee to the plaintiffs ])redecessor in title. A tal)let was at that time l)uilt into the wall and inscribed— " 1816. This stone is placed by A." (the plaintiff's predecessor) " to perpetuate M.'s right to build within nine inches of this and any other building." In 1901 the defendant, who had become possessed of the land which up to that time had been an open yard, built a large shed thereon, interfering with the access of light to the windows of the two cottages, which they had enjoyed continuously from 1816. Lawrance, J., tried an action brought for damages and an injunction, and gave judgment for the defendant. On appeal, the Court {Lord Ifalshury, L.C, Lord Alvers/one, C.J., and Cozens-Hardg, L.J.) held, that the inscription could not be construed as a consent " cxprcsshj made or given for the 23urpose" within the meaning of § 3 of the Prescription Act, 1832, and they allowed the appeal. BUSCOE v. GROUNSELL. (1903) 89 L. T. 426 ; 20 T. L. E. 5. Lessee of Lights not Ancient. — The owner of two adjoining houses granted a lease of one of them to a tenant. The owner sul)sequently leased the other, in wliich were certain windows, to a second tenant. After this the tenant first-named accepted a new lease from the owner, and in rebuilding so altered his pre- mises as to interfere with the access of light to the windows in the second tenant's house. In an action l)rought for tliis obstruction 44 A.\X'1EXT AND O'l'IlKll ]>1GUTS of light, the plaintiff recovered a verdict, and Tlndal, C.J., held, that e\-en though the plaintiff's windows were not twenty years old at the time they were obstructed, the adjoining tenant could not so alter his premises as to obstruct the liglit thereto. COUTTS V. CWllEAM. (1829) M. & M. 396. Lessor and Lessee. — A railway company began to erect ware- houses intended to Ije 100 feet high. The lessee of an adjoining warehouse gave them notice that his lights would be interfered with when the building would be completed, and required the company to decide whether they would take over, or determine his lease of tlie wareliouse. The company declmed to interfere, and the lessee gave six months' notice to determine the lease, and claimed compensation of the company for injuriously affecting his land. There was no evidence that tlie building had yet interfered with the lights. A sheriff's jury found for the plaintiff, and a rule nisi was discharged in the Queen's Bench Division. The company appealed, and the Court {Lord Usher, MM., Fry and Boiven, L.JJ.) held, that the act of the lessee in determining the lease was not the natural result of the acts of the company, but the free exercise of the plaintiff's will, and therefore, he could not recover on the footing that he was entitled to a fourteen-years' lease ; and that he could not recover compensation in respect of a prospective injury, which did not exist at the time of making the claim. R. v. rOULTER. (1887) 52 J. P. 244; 20 Q. B. D. 132 ; 57 L. J. Q. B. 138 ; 36 W. R. 117 ; 58 L. T. 534. "Low" Light, Angle of 45^. — The plaintiff, a sculptor, w^as the lessee of certain studios which were entered from a street 31 feet wide. The defendants proposed to raise their premises on the opposite side of the street to a certain height, wliich would diminish the access of light to the plaintiff's premises. The plaintilf alleged that he rerpiircd not only a direct light, but also what is known as a " low " or " under " light, and had enjoyed it for his work. The plauitiff's lights were all ancient, but had been enlarged within twenty years from tlie time the action was brought. The defendants claimed to have a statutory right to raise tlieir buildings to a height w^hich would subtend an angle of 45°, measured from a base line level with the centre of the plaintiff's light. The plaintiff sought an injunction, and Bacon, V.C., granted it, and held, that the statutory regulation, ANCIKNT AND OTHER LIGHTS 45 as to tlie height of buikliiigs in streets, is not to he taken as limiting prescriptive rights to ancient lights, hut that such rights depend upon tlie degree and amount of obscuration in each par- ticular case. THE ED V. DEBENHAM. (1875) 2 Ch. D. 165; 24 W. E. 775. Mandatory Injunction. — The defendants were proceeding to erect certain buildings opposite the plaintiff's premises in a narrow street in the City of London, and thus darkening the plaintiff's ancient lights and windows. Tlie plaintiff sought a mandatory injunction, and at the trial it appeared that the street was 27^ feet \nde, the east wall of the defendants' old premises 45 feet high, and it was proposed to raise it by 15 feet, but also to set l)ack the building so as to widen the street. Bomilly, M.B., inspected the premises and granted an injunction, restraining the defendants from Ijuilding to a greater height than that of the old buildings. The defendants appealed, and Lord Wcsthury, L.C., suspended the injunction, and ordered an inquiry, and held, that it is the duty of the Court, where the damage done is not such as to justify a mandatory injunction, to order an inquiry to ascertain the damage sustained. ISENBERG V. EAST INDIA CO. . (1863) 33 L. J. Ch. 392 ; 10 Jur. 221 ; 9 L. T. 625 ; 12 W. E. 450. Mandatory Injunction. — In 1889 the defendants re-erected their warehouse, carrying it 14 feet higher than it had previously been, and thus seriously interfered with tlie access of light and air to certain cottages 18 feet high, of which the plaintiffs were owners in fee. The plaintiffs requested the defendants to stop the work on May 23, 1889, and on May 28 the writ was issued, and was served on June 1, 1889. In the interval the building had been roofed in. Chitty, J., granted a mandatory injunction in the form of that issued in Yates v. Jack (L. R 1 Ch. 295), and held, that the fact that the obstruction is comi)letcd l»efore ^vrit issued will not prevent the issue of a mandatory injunction for its removal. The material point for consideration is the state of the new l)uilding when the plaintiff first complains. LA ivLEXCE V. HORTOX. (1890) 59 L. J. Ch. 440 ; 62 L. T. 749 ; 38 W. E. 555 ; 6 T. L. E. 317. Mandatory Injunction refused. — The owners of certain pre- mises increased the height thereof, so as to interfere with the 40 ANCIENT AND OTHER TJGHTS access of liglit to tlie house adjoining. The adjoining owners were colonial brokers, and required a certain amount of light for the purposes of their Inisiness. The l>ill was not filed until after the works were completed. An application for a mandatory in- junctiy Lord RomUhj, M.ll., following the decision in Durdl v. Pritchard (U W. R. 212). The plaintiffs appealed, and Lord. Chelmsford, L.C., dismissed the appeal, as it was not proved that " extreme " or " very serious " damage might ensue. CALCRAFT v. THOMPSON. (1867) 15 W. R. 387. Mandatory Injunction on Interlocutory Application. — 'ilie jdaintiff owned three houses, each having one or more ancient liglits, in a narrow lane only 13 to 14 feet wide. I'he defendant was the owner of property immediately opposite the plaintiff's houses, consisting of a house and shop 40 to 45 feet in height, and other low buildings varying from 19 to 24 feet high. In 1871 the defendant pulled down the shop, house, and adjoining low buildings, and early in the following year began to erect on the site thereof a large hotel, which, when built, would vary in height from Go to 7G feet, and would seriously diminish the light and air formerly enjoyed by tlie plaintiff's houses. In October, 1872, the plaintiff sought an injunction, and at that time the defendant's wall was already several feet higher than the old buildings. Malln, V.O., granted a mandatory injunction on an interlocutory application, the defendant having failed to show that the proposed Ijuilding would not materially interfere with the plaintiffs lights. YOUNGE v. SHAPEE. (1872) 27 L. T. 643; 21 W. R. 135. Mandatory Injunction refused through Delay. — The plaintiff's house was 31 feet high with a street frontage of 36 feet. The defendant, in Marcli, 1865, purchased, and in May, 1865, began to pull down, premises opposite having a frontage of 40 feet, and varying in height from 30 feet to 8 feet, and with a view to erect lofty buildings, setting tliem back 5 feet, thus making the street 21 feet wide. The plaintiff complained in May, but a bill for an injunction was not filed until December 5, 1865, when the buildings had reached the third storey, but the motion stood over until the trial. Meantime the defendants pushed on the work, and built to the full height at their own peril. Evidence was given of the necessity to light up the plaintiff's premises earlier every evening than formerly, and that certain millers could no longer use the ANCIENT AND O'VUVAl IJGIITS 47 premises to show samples of corn to their customers. Owing to the plaintiffs delay, irood, F". 6'., refused a mandatory injunction, but ordered an inquiry as to damages. SENIOR V. PAWSON. (186G) 3 Eq. 330 ; 15 W. li. 220. Material Inconvenience not proved. — The plaintiff was the owner but not the occupier of certain [)remises in a court IS feet wide and a parallelogram in shape in the city ; the defendants were the owner of a house at the end of the court 36 feet in height, and a certain buiUler. Opposite the plaintiff's house there was a wall GO feet in height which prevented direct access of light to the plaintiff's house from that quarter. The first defendant employed the builder to rebuild his house, and when the new building had reached a height of over 42 feet, the plaintiff sought an injunction to restrain the defendants from interfering with the access of light to his premises by erecting a building of a greater height than the old building. At the trial it was proved that the new building would diminish the light in the court and in the plaintiff's house, but no evidence was given of material inconvenience to the plaintiff's tenant, or of substantial damage to the reversion. Fry, J., held, that a plaintiff in an action to restrain an alleged obstruction to ancient lights cannot obtain an injunction unless he prove substantial damage ; an inquiry as to damages will not be ordered where the plaintiff has opened a case of substantial damage, and failed to prove it. The action was accordingly dismissed. KINO V. BUD KIN. (1877) G Ch. D. 160; 46 L. J. Ch. 807. Material Injury amounting to a Nuisance. — The defendant, by increasing the height of a certain wall on his premises, at right angles to the adjoining premises, from 12 feet to 16 feet, darkened the ancient lights in the adjoining premises. s\n injunction was obtained, without notice on affidavits, by the adjoining owners, but no subpoena was served. On hearing a motion to dissolve the injunction, Lord Eldoii, L.G., held, that the defendant was put to dissolve on merits, and that the plaintiff should be permitted to show cause by affidavit. The effect of the damage, to justify an injunction, must be that material injury amounting to a nuisance, which should not only be redressed by damages, but prevented upon equitable principles. A.-G. V. NICHOL, (1809) 16 Ves. 338 ; 10 11. E. 186. 48 AKCIKXT AND OTHER LIGHTS -Material Injury not proved. — A tenant from year to year sought an injunction to restrain the adjoining tenant frorabuihling so as to interfere with the free access of light and air to his house. At the time of the hearing of an action brought by the tenant for an injunction against the adjoining tenant, only eight months of his tenancy was unexpired. Lord liomilly, M.R, granted a mandatory injunction, and held, that the fact that the plaintiff's interest in the premises was small, was no ground upon which to refuse him protection. On appeal, the Court {Kiwjlit Bruce and Turner, L.J J.) held, that the small interest of the plaintiff, although not disentitling him to relief, was an important element for con- sideration, and they dismissed the bill as no material injury had been sustained. J ACQ MB V. KNIGHT. (18G3) 32 L. J. Ch. GOl ; 3 De G. J. & S. 533 ; 8 L. T. 621 ; ] 1 W. 1{. 812. -Mistake as to Position. — One of two adjoining owners under a misapprehension made no objection to the other adjoining owner erecting a glass studio at the rear of Ids own premises. About a week after the work liad l)ccn started, the first-named adjoin- ing owner discovered tlie mistake as to the position of the studio which he had made, and that the building would darken the liglits of his house ; four days later he objected in writing, and eight days afterwards, when the studio was almost completed, he filed a bill for an injunction. Wood, V.C., dismissed the bill, and the plaintiff appealed. The Court {Turner and Knight Bruce, L.J J.) dissented from the decision of tlie Vicc-Chancellor, and held, that tliere was no sucli ac(|uicscence as would deprive the plaintiff of liis right, Ijut that in the circumstances the bill ouglit to be dismissed, on the ground of no nuisance. JOHNSON V. WYATT. (18G3) 33 L. J. Ch. 394; 9 Jur. 1333; 9 L. T. G18; 12 W. E. 233. Mutual Vindictiveness of Plaintiff and Defendant. — The de- fendant, in the course of rel)uilding his premises, proposed to erect a block of buildings five storeys high. Upon the site tliereof there had recently existed for more than twenty years, a one-storey building, less than 12 feet high, a two-storey building, and a four-storey building. The last-named building formed the side of a passage leading to a certain court, through which light and air passed to tlie adjoining owner's premises. It was pro- posed to build over tlie court and alley also, giving the adjoining owner access to his rear by a covered passage. The adjoining ANCIENT AND OTHER LIGHTS 49 owner sought an injunction, and a motion for a decree was made nearly three years after the bill was filed. It appeared that by various acts both the plaintiff and the defendant had to a con- siderable extent injured tlie other, and Lord Eomilbj, M.Ii., held, that although the defendant was to some extent to blame, the proper course was simply to dismiss tlie l)ill without costs. COCKS V. ROMAINE. (1866) 14 L. T. 390. Non- existing Windows not a bar to Action. — In 1878 the Eoclesiaslical Commissioners })ulled ilowu a certain church, built in 1674, and having disposed of the materials, endeavoured un- successfully to sell the site. The defendants, who had become owners of what had been part of the glebe or the churchyard of the church, commenced to erect thereon certain buildings, which, when completed, would have materially obstructed the access of light to windows occupying the same position as those of the old church. The Ecclesiastical Commissioners, therefore, sought an injunction, which was refused with costs by Hall, V.C. The plaintiffs appealed, and the Court {James, Brett, and Cotton, L.J J!) reversed the judgment of Hall, V.C, and granted an interim in- junction, and held, that the fact that there were no existing windows the access of light to which would be interfered with, was no bar to the injunction, if the right to light had not been abandoned ; that the Commissioners had power to sell the site with all the easements possessed by the church ; and that, although vested in the rector, there was no such manifest impossibility for the church to have a title by prescription or grant to access of light over the glelje, as to induce the court to refuse an interim injunction. ECCLESIASTICAL COMMISSIONERS v. KINO. (1880) 14 Ch. D. 213; 49 L. T. Ch. 529; 42 L. T. 201; 28 W. E. 544. Nnisance. — The plaintiff was the lessee of a house, the kitchen of which had been lighted for more than twenty years by a grated area situated in an adjoining yard. In May, 1860, the defendant converted the yard into a larder, covering the upper part with a skylight. After correspondence, the defendant promised, in October, 18 GO, that he would make certain altera- tions, and not having done so, the plaintiff filed a liill for relief in May, 1861. Kindcrselcy, V.C, held, that converting the yard into a larder was such a nuisance as the Court will interfere to prevent, and that the plaintiff's delay in filing his bill, from M.B.c. S 50 ANCIENT AND OTIIKU LIGHTS October, 18G0, to May, 18G1, was not a sufficient ground for refusing relief, the delay not having occasioned mischief to the defendant. GALE V. ABBOTT. (18G1) 8 Jur. 987 ; 10 W. E. 748; 6 L. T. 852. No Nuisance proved. — The defendants erected a wall in the City of London, close to the plaintiffs' premises, so as to interfere with the ancient lights therein. In an action for an injunction, the defendants contended that there was a space of 17 feet between their wall and the plaintiffs' premises, and that there were many streets and lanes in London not so wide. They admitted that the lights were interfered with in some degree, but claimed a right to build on their own ground. Lord Hardwiche, L.C., refused the injunction, and held, that no nuisance had been proved. FISHMONGEBS' CO. v. EAST LNDIA CO. (1752) 1 Dick. 163. Not reserved by Conveyance. — The plaintiff purchased a block of eighteen cottages, which overlooked the rear of a block of nine cottages, also his property, the two blocks being divided by a road. The defendants were purchasers of the block of eighteen cottages, which the plaintiff had sold some years before without reserving in the conveyance thereof the ancient lights in his block of nine cottages. In an action to restrain the defendants from erecting on the site of the block of eighteen cottages, large buildings which would interfere with the access of light to the ])lainiiff's cottages, a Commissioner of Assize entered judgment for the defendants. The plaintiff moved to enter judgment for him, and the Court {Grove and Denman, JJ.) dismissed tlie motion, and held, that notwithstanding the plaintiff's cottages had acquired an absolute and indefeasible right to light at the date of the con- veyance of the block of eighteen cottages, inasmuch as that conveyance was without reservation, the defendants were guilty of no wrongful obstruction of the plaintiff's liglits. ELLIS V. 3IANCHESTEB CABRIAGE CO. (1870) 2 C. P. D. 13 ; 35 L. T. 476 ; 25 W. R. 229. Obstructed by " Party Structure." — The plaintiff and the defendant were adjoining owners. The defendant, who was a building owner within the meaning of the Metropolitan Building Act, 1855, erected a party structure which interfered with the access of light to the ]ilaintiff's premises. In an action for an injunction by the plaintiff, the Court (Cockburn, C.J., Blackburn ANCIENT AND OTHER LIGUTS 51 and Lnsh, JJ.) held, on deiniuTOr, that § 83 (G) of the Acf, which gives a right to the building owner to raise any party structme permitted by the Act to be raised, upon condition of making good all damage to the adjoining premises occasioned thereljy, does not autliorize the erection of a structure so as to obstruct ancient lights in the adjoining premises, and they granted the injunction. CROFTS V. HALDANE. (1867) L. E. 2 Q. B. 194 ; 36 L. J. Q. B. 85 ; 16 L. T. 116 ; 8 B. & S. 194 ; 15 W. E. 444. Obstructed by Pile of Timber. — The owner of certain land erected a house thereon. Subsec|uently he sold the house to one, and the rest of the land to another, purchaser. The purchaser of the land obstructed the lights of the house by erecting piles of timber on the land. In an action by the purchaser of tlie house, the Court (Twysden and Wyndham, JJ.; Kelyngc, J., douUing) held, that the vendor could not derogate from his own grant, and that neither he nor any purchaser claiming under him could obstruct the lights of the house. PALMER V. FLETCHER. (1615) 1 Lev. 122. Obstruction after Notice. — The owner and the occupier of a certain house, after written notice, brought an action against the defendant to restrain him from rebuilding his premises^ on the opposite side of the street, to such a height as to obstruct the plaintiffs' ancient lights. On May 24, 1885, the writ was issued, Ijut the defendant evaded service until May 28, when the plaintifls obtained an order for substituted service. Meantime the defendant puslicd on the works, and on May 30 the gable was built to its full height, and materially interfered with the lights in question. Kekcicich, J., held, that the defendant's evasion of the service of the writ brought the case within the principle of Daniel v. Ferguson (1881), 2 Ch. 27, and that tlie plaintiff was entitled to an interlocutory mandatory injunction, ordering the defendant to pull down as much of the building as had been erected after the plaintiff had warned the defendant that he intended to bring an action. The Court (Lindlcg, Lopes, and Righy, L.J J.) affirmed this decision. VON JOEL v. HORNSEY. (1895) 2 Ch. 774 ; Qb L. J. Ch. 102 ; 73 L. T. 372. Obstruction of New if it involves Obstruction of Old is Illegal. — A silk-mercer, carrying on business in the City of London, pulled 52 ANCIENT AND UTHElt LIGHTS dovvii the jireniiscs he occupied and erected on the site a new warehouse, altering the position, enlarging the dimensions of MJudows })reviously existing, increasing the height of the buildings, and setting the rear of them so as to be nearer to tlie defendant's l)remises. The new windows were so situated that the defendant could not obstruct them without obstructing that portion of the new windows which occupied the site of the ancient windows. In an action for obstructing the plahitiff' s lights tried by Cockburn, C.J., verdict and judgment were given for the plaintiff. On lieariug a case, the Court of Common Pleas affirmed the judgment of Coclcburn, C.J. Upon error in the Exchequer Chamber, the Court affirmed the decision in the Connnon Pleas. On appeal in error, the House of Lords {Lords Westlury, L.C., Granworth, and Chelmsford) held, that the right to light de})euds now on statute, which cannot be lost by a temporary intermission not amounting to abandonment, nor forfeited by any attempt to extend the right ; and that where there was an ancient light and others were added, which from their position could not be obstructed without obstructing the ancient light, such obstruction was illegal. TAFLING V. JONES. (1805) 11 H. L. C. 290; 20 C. B. (n.s.) IGG ; 11 Jur. 309 ; 34 L. J. C. P. 342 ; 13 W. E. 617 ; 12 L. T. 555. Obstruction by Paling. — The defendant erected a large paling. and thereby completely darkened certain ancient lights of the adjoining owner. In an action on the case, the defence stated that there had l)cen blinds fastened to the window-frames of the ancient lights which prevented the plaintiff from seeing into the defendant's garden, tlie liliuds slo})ing upwards, and only serving to admit light ; and that the plaintiff, by removing those blinds, had deprived the defendant of the privacy of his garden. It being proved that the paling had in fact rendered the rooms darker than they had been when the blinds were up, Jjord Kenyon entered judgment for tlie plaintiff. COTTEIIELL v. GRIFFITHS. (1801) 4 Esp. C9. Obstruction removed. — In 1807 a window was opened in certain premises under circumstances from which, in view of subsequent user, the jury might presume a grant. The adjoining owner erected certain boards which obstructed the access of light to the window, and the defendant entered the premises and broke down the boards. Tindal, C.J, held, that the question was not whether the window was ancient, but whether it was such as the ANCIENT AND OTTTER LTGIITS 53 law, in iudulj^fcnce to lif^^lits, lias in modern times so called, and to which the defendant has a right : the jury found for the plaintiff. PENWARDEN v. GHING. (1829) M. k M. 400. Opaque Glass. — ])y an agreement in writing, hut not under seal, the defendant's predecessor in title agreed with the plaintiff that the latter should have an indefeasible right to the access of light and air to a certain window, ahout which a dispute as to whether it was an ancient light or not had arisen, on condition that the plaintiff should make, and his heirs, &c., should keep, the glass thereof opaque, and that the window-frame should be made to open to admit air without allowing any person to look out through it from the plaintiff's house. The defendant purchased the premises without any actual notice of the above-named agreement, and he proceeded to pull down a certain wall and erect a building of greater height, and slightly nearer to the window than the old wall. The plaintiff threatened proceedings, and negotiations ensued, Init without result ; and after the building had been carried to its full heiglit, the plaintiff sought an injunction. Hall, V.G., held, that tlie defendant was affected with constructive notice, having seen the window when he purchased, and he was restrained from interfering with the access of light to the window. The defendant appealed, and the Court {James, Brett, and Cotton, JJ.) reversed the decision of Hall, V.C., and held, that the mere fact of there l)eing windows in an adjoining house which overlooks a purchased property is not constructive notice of any agi-eement giving a right to the access of light to them. ALLEN V. SEGKIIAM. (1879) 11 Ch. D. 790; 48 L. J. Cli. 611; 41 L. T. 2G0 ; 28 W. E. 26. For the Purpose of Ordinary Business. — The company were lessees of business premises in the City. Colls proposed to erect on laud opposite a building 42 feet high, the street being 41 feet wide. On action brought, Joyce, J., found that the proposed buildings would not interfere with any of the company's windows but two on the ground floor, in which it had been necessary to use electric light in the daytime, that the letting or selling value of the company's premises would not be affected, and that they would still be sufficiently lighted for all ordinary purposes of occupancy as a place of business. He therefore dismissed the action with costs. The Court of Appeal {Vavghnn-WilUams, Bomcr, and Cozens- 54 ANCIENT AND OTTTF.T^ TJGHTS Ilanljf, LJJ.) nccrscd tlio aljove decision, and granted an injunction restraining Colls from building so as to injure, darken, or ol (Struct the company's windows, and ordered certain buildings erected l»y Colls after the decision of Joyce, J., to be pulled down ((1902) 1 Ch. 302). The House of Lords {The IJarl of Jlahhunj, L.C., Lords Macnaghten, Davey, RoUnson, and Lindley) reversed the judgment of the Conrt of Appeal, and held, that to constitute an actionable obstruction of ancient lights it is not enough that the light is less tlian before. The dhninution of light must be substantial; the interference must render the occupation of the house uncomfortable according to ordinary notions of mankind ; if business premises, it must prevent the plaintiff from carrying on his accustomed business as Ijeneficially as before. Warren v. Brown (1902), 1 K. B. 15, overruled. Cf. AmUer v. Gordon (1905), 1 K. B. 417. COLLS V. THE HOME & COLONTAL STORES, LTD. (1904) App. Cas. 179; 73 L. J. Ch. 484; 90 L. T. G87; 53 W. B. 30 ; 20 T. L. B. 475. Overlooking a Public Open Space. — The owner of a plot of ground abutting on a churchyard erected thereon buildings with windows overlooking the churchyard. The churchyard was an " open space " within the Metropolitan Open Spaces Acts, 1877, 1881, and 1887, and the Disused Bnrial Grounds Act, 1884. In order to prevent the acquisition of an easement of light over the churchyard, the local autliority erected a screen or hoarding to obstruct the windows in question. The owner sought an injunction, and Buckley, J., held, that as the plaintiff w^as suing either in respect of a private right to the access of light, or in respect of an alleged interference with a public right from which he personally had sustained special damage, he could sue without joining the Attorney-General as plaintiff. The Acts, however, did not create any easement for the benefit of adjoining owners, or any right other than a right in the public to enjoy the churchyard as an open space. The hoarding was not a building within the meaning of § 5 of the Act of 1881, or of § 3 of the Act of 1884. Action dis- missed. On appeal, the Court {Vaughan- Williams, Romcr, and CozenS'Hardy, LJJ.) reversed this decision ((1903) 2 Ch. 557). BOYCE V. BADDLNGTON BOROUGLI COUNCTL. (1903) 67 J. B. 23; 1 Ch. 109; 72 L. J. Ch. 28; 87 L. T. 564; 51 W. B. 109; 1 L. G. B. 98. 'i^OTE. — The House of Lords {Earl of ITahhurg, L.C., and Lonh liohertson and LindUy) reversed the judgment of the Court of Appeal, and restored tlie decision of Bucldey, J., on appeal ((1905) Times, Standard, November 15). ANCIENT AND OTHER LIGHTS 55 Partial Acquiescence. — Tlic defenJauts, who were Ijoilcr- makers, had ac(|uired laud, behind a chapel, previously used as a timber-yard, and erected thereon boiler works, and a large shed with corrugated iron roof. The slied was completed in 1871, but uo complaint made by the chapel trustees until June, 1871, when their solicitor complained of noise and interference with the lights at tlie back of the chapel, built in 1840, the liglits having been diminished by the trustees in 1868. Various communications passed between the parties from that date to January, 1874, when the trustees brought their action for a mandatory injunction, and also an injunction in respect of the noise. Bacon, V.C., granted injunctions as prayed. On appeal, the Court {James and Mcliish, L.J J.) affirmed the decision of the Vice- Chancellor, and held, that having regard to the nature of tlie building, relief sliould be granted, although the shed was completed, and the works carried on for some time, without complaint. A partial interference with light by the owner is no bar to a suit to prevent a subsequent interference by others. " iVir " should not be coupled with " light " in an injunction as a matter of common form. BAXTER V. BOWER. (1875) 44 L. J. Ch. 625 ; 33 L. T. 41 ; 23 W. R 805. • In a 9-foot Passage. — The back return-windows of the plaintiff's house were aucieut lights, and looked into a passage 9 feet wide. The defendant proposed to pull down liis house 30 feet liigh opposite, and rebuild it to a height of 60 feet with a recess of 8 feet in tlic wall directly opposite one half of the frontage of the plaintiff's prcudscs. The rooms were low and small, and the defendant's buildings when completed would obstruct the access of light thereto and diminish the value thereof. In an action to prevent the threatened obstruction, Walsh, M.R., granted a proliibitory injunction, but refused a mandatory injunction. MAGUIRE V. GRATTAN. (1808) 2 Ir. Eep. Eq. 246 ; 16 W. E. 1189. Photographic Studio. — Two adjoining premises were divided by a wall 11 feet high, 4 feet distant from a large window in one of the houses, occupied by the plaintiff, and running in a direction nearly perpendicular to the window. The adjoining owner erected in his garden buildings for photographic purposes, running parallel to the wall, about 3 feet from it, and from 4^ feet to 11 feet above the wall, and so obstructed the access of light and of the sun's rays to the plaintiff's window. In an action for an injunction against the adjoining owner, Ijord Cranworth, Tj.C., dismissed the bill, but 56 AXCIKNT AND OTFTER TJGllTS held, that the Court will restrain the erection of a building when the ohstruction is such as to interfere with the ordinary occupations of life, and that a lateral destruction may be restrained. CLARKE V. CLARK. (1865) L. E. 1 Ch. IG; 35 L. J. Ch. 151; 11 Jur. 914; 13 W. E. 115; 13L. T. 482. Photographic Studio. — Tlie plaintiff, a photogi-apher, had occupied a studio at the back of his premises for twenty-three years, running north and south, and entirely lighted by a low side east or north-east light. Until 1887 it was used by the plaintiff as a jeweller's showroom, and since 1887 for the purpose of developing photographic portraits. In February, 1897, the defendants, who were photographers and occupied the adjoining premises, proceeded to erect, on a Hat at the rear of their premises, a photographic studio, distant, from that of the plaintilf, about 12 feet. The plaintiff brought an action, and served notice of motion for an interim injunction to restrain the defendants from erecting the building. Kchewicli, J., held, that a person who is in tlie present en- joyment of an access of light to his premises for a special or extraordinary purpose, such as taking photographs, may obtain an injunction against interference with that access of light, even though he may not have been in the enjoyment of it for that special or extraordinary purpose for the full statutory period of twenty years. Lanfranchi v. Mackenzie, L. E. 4 Eq. 421, not followed. LAZARUS V. ARTISTIC PHOTOGRAPHIC CO. (1897) 2 Ch. 214; GG L. J. Ch. 522; 76 L. T. 457; 45 W. E. 614. Plaintiflf contributing to Diminution. — Tlie purcluisers of certain premises rebuilt and enlarged them, and left a certain wall stand- ing, in order to preserve the ancient lights therein. Tlie purchasers of the adjoining premises built a wall within 3 feet of the ancient lights referred to, and had raised it to a height of 30 feet, intend- ing to build it 20 feet higher. The alleged object of this wall was to protect the adjoining premises from fire in the plaintiffs' premises, where wood-cutting was carried on. The defendants alleged that the plaintiffs had by their extensive building reduced the light coming to tlieir premises. Stuart, V.C, refused a motion for a mandatory injunction, and the plaintiffs appealed. Giffard, L.J., reversed the decision of Stuart, V.C, and held, that the fact that the owner of ancient lights has himself contributed to the ANCIENT AND OTUV.W UGUTS 57 diminutiou of liglit, will not in ilselt" preclude him from obtain- ing an injunction against the person causing an obstruction. STAiailT V. BURN. (1869) 5 Ch. 163 ; 39 L. J. Ch. 289 ; 22 L. T. 831 ; 18 W. E. 243. Plaintiff need not be the Occupier. — The defendant com- menced to erect at the rear of his house, in a certain terrace, an addition 26 feet from the Ijack wall, intending to carry it to witliin 5 feet of the height of the house. The houses in the terrace were only 29 feet wide, so that the new structure would, if erected, be very close to the windows of the adjoining houses, the respective owners of which sought to restrain the defendant from building as proposed. It appeared that some of the w^indows claimed by the plaintiffs as ancient lights had been enlarged recently, and some new windows had been opened. Kindcrsley, V.C, gave the plaintiff leave to bring an action at law, and allowed the defendant to proceed at his own risk, to a certain height, with the building, and held, that the plaintiff seeking an injunction need not be in occupation of the premises the light to which is obstructed. WILSON V. TOWN END. (1860) 30 L. J. Ch. 25 ; 6 Jur. 1109 ; 1 Dr. & Sm. 32-1; 3 L. T. 352 ; 9 W. E. 30. Plan of House altered in Rebuilding. — A lease contained a covenant to " rebuild " a new house on the site of the demised premises, and it was also covenanted that such of the lights in the new house as occupied the site of ancient lights should have all the rights of ancient lights. In an action by the lessors for an injunction to restrain the lessees from building on a different plan to that of the old premises, Page-Wood, V.C, granted an injunction. On appeal, Lord Westhunj, L.C., held, that the covenant did not oblige the lessees to build the new house in the same style, and shape, and with the same elevation as the old building, and even if he did, the fact that the covenant stipulated that the new building should be suitable for a pur- pose which the old building would not have suited, would rebut the inference that the houses were to be similar, and that the agreement as to the lights amounted only to an engagement that as far as the lessees were owners of adjoining property, the lights of the new house would have the character of ancient lights. LOW y. INNES. (1864) 4 De J. J. & S. 286 ; 10 Jur. 1037. 58 ANCIENT AND OTHER LIGHTS Position not Ascertainable. — In 1868 the owners of certain cottages with ancient li,ghts pulled them down, and upon the site thereof erected a warehouse, tlic western side of which was on tlie same plane as the western side of the cottages, and whicli was lighted by three large windows. At the trial of an action by the o^\^lers to prevent the adjoining owners from raising their premises beyond their former height and so ol)structing the access of light to the three windows, there was no relia].)lc evidence as to the position of the lights in the old cottages, and Bacon, V.C., dismissed the action. On appeal, the Court {James, Baggallay, and Lush, L.JJ) held, that in the absence of evidence as to the position of the ancient lights, the easement could not be maintained as to the new building. FOWLERS v. WALKEIl. (1880) 51 L. J. Ch. 443; 42 L. T. .356 ; 28 W. R. 570. -Presumptive Bar. — In an action on tlic case for the ol^struction of certain lights, the plaintiff proved twenty-five years' uninterrupted enjoyment thereof. The defendant relied on possession pre^'ious to these twenty-five years, but Gould, J., entered judgment for the plaintiff. On a rule for a new trial on the grounds of misdirection, the Court {Lord Mansfield, C.J., Willes, Ashurst, and Bidlcr, JJ.) held, that length of enjoyment was not an ahsolute bar, like a statute of limitations, but was a presumptive liar, wliicli ought to go to the jury, and the rule was made al)Solute. It was, however, subsequently discharged. DARWIN v. UPTON. (1786) 2 Wms. Saund. 175, c. Prior Sale by Auction. — Certain freehold premises, consisting of a workshop and a plot of building land, were offered for sale by public auction. The land was then sold; and a month later the workshop was sold by private treaty to another purchaser. The successor in title of the purchaser of the land erected a hoarding near the edge of the land facing certain windows in the workshop, in order to assert the right to the uncontrolled user of the land. The owner of the workshop knocked down the hoarding, in order to assert his right to an easement of liglit in respect of the windows referred to. The plaintiff sought an injunction to restrain liini from trespassing, and Baeoii, V.C., granted an injunction and damages. The defendant a})pcalcd, and the Court {Thcsigcr, James, and Baggallay, L.JJ.) held, that as the vendor had not, when he conveyed the plot of land, reserved the right of access of light to the windows, no such right passed to the ANCIENT AND OTHER LIGHTS 59 purchaser of the workshop, and that the purchaser of the plot of land could ohstruct the light to the windows ; whatever might have heen the case had both been sold Ijy auction, there was, under the circumstances, no implied reservation of any right over the piece of land first sold. The decision in Fycr v. Carter (1 11. & N. 91G) was dissented from. WITEELDON v. BUBROWS. (1879) 12 Ch. D. 31; 41 L. T. 327; 48 L. J. Ch. 853; 28 W. K. 196. -Purchasers of Same Vendor. — The plaintiff purchased a house, and the defendant the adjoining land, from the same vendor. A one-storey building had formerly stood on the land. The plaintiff's conveyance described the land as " htdlding ground" In an action for a nuisance committed by the defendant in erecting a house which ol)structed the plaintiff's ancient lights, Tindal, C.J., ordered a verdict to Ije entered for the plaintiff for damages subject to a rule. On hearing a rule nisi, the Court (Tindal, C.J., and others) held, in a considered judgment, that the defendant was not entitled to build to a greater height than one storey, if by so doing he obstructed the plaintiff's lights. SWANSBOEOUGH Y. COVENTRY. (1832) 9 Bing. 305 ; 2 Moo. & Sco. 362 ; 35 E. E. 660 ; 2 L. J. C. P. 11. Reservation by Lessors. — The plaintiffs, as trustees, were lessees of certain premises, 44 feet in height, held under four leases from the Ecclesiastical Commissioners, in a street in London, 31 feet wide, for a term of sixty years, from December, 1867. The lessors reserved power, by a clause in each lease, to deal with the adjoining or contiguous premises as they thought fit, to permit the erection of any Iniildiugs whatsoever thereon, &c., without obtaining the consent of, or compensating, the lessees. The word " lessors " was to include all persons holding title under the Commissioners. The defendant proposed to erect opposite to the plaintiffs' premises, also the property of the Ecclesiastical Commissioners, certain buildings, wliich admittedly would interfere with the plaintiffs' ancient lights, in lieu of four old houses standing unaltered on that site for a period of more than twenty years, and but 30^ feet in height. In an action for an injunction. North, J., held, that the above clause prevented the plaintiffs from a right to light under § 3 of the Prescription Aet, 1832, that the plaintiffs' leases and the defendant's agreement, respectively, passed by implication the subsoil of the 60 ANCIENT AND OTflER TJGHTS street iLsqite ad medium filum vice, and that, therefore, the respective premises \vere " adjoining or contiffuou-'!," and tliat the defendant was an assign of the benefit of the agreement between tlie Commissioners and the plaintiffs, and that, consequently, the defendant was entitled to build so as to obstruct tlie plaintiffs' lights. HAYNES V. KING. (1893) 3 Ch. 439 ; 63 L. J. Ch. 21 ; 3 R 715 ; 09 L. T. 855 ; 42 W. R 56. Restored Lights. — The former owner of tlie plainlil'f's premises had, when rebuilding al)out seventeen years before the action was l)rouglit, substituted a blank wall for a wall, adjoining the defend- ant's premises, which had contained an ancient light. Three years prior to the date of the action, the defendant erected a building next to the blank wall, whereupon the plaintiff opened a window in the blank wall, in the same position as the ancient window had l)ecn in tlie old building. In an action for an injunction, Hulloch, Jk, directed a verdict for the plaintiff. Tlie defendant moved for a nonsuit, and the Court {Ahbott, C.J., Bayley, Holroyd, and TAttlc- d(dc, JJ.) held, that the plaintiff could not maintain the action, be- cause, by erecting the blank wall, he not only ceased to enjoy the light, but had evinced an intention never to resume the enjoyment. MOOIiE V. BA WSON. (1824) 3 B. & C. 332 ; 27 IJ. R 375 ; 5 D. & R 234; 3 L. J. (o.s.) K B. 32. Reversioner as Plaintiff. — In an action by the reversioner against an adjoining owner for obstructing the access of light to certain premises, a verdict and general damages were given for the plaintiff. On hearing a rule the defendant objected that the action could not 1)0 maintained by the reversioner, being only an injury to the person in possession; the Court {Lord Mansfield, C.J,, and Aston, J.) discharged the rule. JESSER v. GIFFOIW. (1767) 4 Burr. 2141. Right to All Light previously had. — The owner of certain promises rebuilt them in 1837 with a frontage of 29 feet. The width of the street was about 25 feet. The owner of certain premises, with a frontage of 90 feet on the opposite side of the street, some of which were 32 feet and some 20 feet high, pulled them down, and proposed to reljuild them 67 feet in height, but set back 6 feet. The owner first named sought an injunction to restrain the proposed interference, and Wood, V.C., granted a A^'CIEXT AND OTllEll LIGUTS Gl decree declaring the plaintiff to be entitled to the access of light and air to such an extent as would enaljlo him to enjoy his ware- house for the purpose of his Lusiuess without any material diminution of their former use and enjoyment. On appeal, Lord Crumvorth, L.C., held, that the plaintiff was entitled not only to sufficient light for the ^turpose of his then business, but to all the light which he had enjoyed previously to the interruption sought to be restrained. The Court gave the defendant leave to a^iply in order to ascertain whether any building which he might propose to erect would cause such an interruption. YATES V. JACK. (18GG) 1 Ch. 295 ; 12 Jur. 305 ; 14 L. T. 151 ; 14 W. E. 618. -Rights of the Crown. — The defendants, who were lessees of the Cro^\n, entered into an agreement with their lessors, that they would erect new buildings in place of the old, in consideration of which the Crown agreed to grant to the defendants a new lease. Pursuant to this agreement, the defendants proceeded to pidl down the old and erect the proposed new buildings, which, the plaintiff complained, would interfere with ancient lights in a house which he had built on his own freehold in 1852. In an action by the plaintiff for an injunction to restrain the defendants from building so as to interfere with his ancient lights, he contended that he had acquired an indefeasible right to light as against lessees and reversioners. Kekeivich, J., held, that § 2 of the Prescription Act, 1832, does not apply to the easement of light, and that § 3, which applies to light, does not bind the Cro^^Tl, and that, in the circumstances, no lost grant of light could be presumed as against the Crown or its lessees. The learned Judge further held, that the prerogative of the Crown prevented the plaintiff' acquiring any right to the access of light over the site of the defendants' buildings. The Court of Appeal {Lindley, Lopes, and A. L. Smith, L.J J.) affirmed the above decision of Kehewich, J., except the last paragraph, which they reversed, and heldy that as the plaintiff could not establish a right against the Crown as reversioner, he could not establish a right against their lessees, inasmuch as an easement, if acquired by prescription, either at common law or under the statute, must be absolute, and not for a term of years. Ferry v. Eames (1891), 1 Ch. G58, and Bright v. WalTier, 1 C. M. & H. 211, approved. WHEATON V. MAPLE & CO. (1893) 3 Ch. 48; G2 L. J. Ch. 963; 69 L. T. 203; 41 W. E. 677. 62 ANCIKNT AND OTHER LIGHTS Rights of Lessor. — A lessor granted a lease for a term of years of a house auJ premises in which lights were specified. At the time of the grant he held the house adjoining for a term, and subsequently acquired the reversion thereof. On the expiration of the term he began to build on the site of the adjoining house so as to interfere with the lights of the demised premises, which lights were not ancient lights. In an action for an injunction by the lessee, Malins, V.C., granted the injunction applied for. On appeal, the Court {James and Mellish, L.JJ.) reversed the decision of the Vice-Chancellor, and held, that the lessor was not by his grant prevented from so building. BOOTH V. ALCOCK. (1873) L. E. 8 Ch. G63 ; 42 L. J. Ch. 557 ; 29 L. T. 231 ; 21 W. E. 743. Scientific Report by Order of the Court. — The owners of certain premises brought an action against the adjoining owners for obstructing the access of light and air to their premises. The defendants moved for the appointment, under 15 & 16 Vict. c. 80, § 42, of a competent and independent architect to view the premises, make plans thereof, and report to the Court, as to the injury to the plaintiffs. Jcssel, 31. B., held, that the Court ought not luider that statute to make an order, l)efore the trial, appointing a scientific person to report upon a question of fact. BALTIC COMPANY v. SIMPSON. (1876) 24 W. E. 390. Not sensibly diminished. — The back rooms of a certain house were lighted solely by the light passing through the windows thereof, over a yard 27 feet deep. Formerly the adjoining house was in line therewith, but the adjoining occupier proposed to erect a building 10 feet in advance of that line, and so interfere with the access of light to the windows as to prevent the occupier from enjoying the same amount of light as formerly. At the trial of an action Ity the occupier for an injunction evidence was called by the adjoining occui)ier who was erecting the building, that the light to the windows was not sensibly diminished, and that the plaintiff had erected a flue which created the same ol)struction. Stuart, V.C., held, that the plaintiff was not thereby disentitled to an injunction to restrain the erection of a building which will seriously diminisli the supply of light and air, Nothing short of an act by the plaintiff which will produce the same injury as that complained of will deprive him of his right to relief. ABCEDECKNE v. KELK. (1858) 2 Giff. 683 ; 5 Jur. 114 ; 7 W. E. 194. ANCIENT AND OTHER LIGHTS 63 Shop Window. — The owner of a house divided it into two tenements, and let one of them to a bookseller, who put a movable bookcase in the street doorway every day, so close to the window of the other portion of the house occupied by the owner as to interfere with the light coming to his side window. In an action by tlio owner to restrain his lessee from putting the book- case in the position complained of. Lord Abbott, C.J., held, that the lessee was liable for obstructing those windows in the house which existed at the time of the demise though of recent construc- tion, and though no stipulation was made against obstruction. BIVIERE V. BOWER. (1824) Ey. & M. 24 ; 27 E. E. 726. Shop Windows. — A shopkeeper, in rebuilding his premises, had projected them more into the street than the windows of the adjoining shop, so that it was alleged that the access of light and air to the adjoining premises was obstructed, and the adjoining shop window could not be seen from so great a distance down the street as formerly. The plaintiff sought, but Wood, V.C., refused, an injunction, and held, that if there be no interference with the access of light and air, the fact that a shop window is obstructed so that it cannot be seen from so far off as formerly, affords no grounds for an injunction. SMITH Y. OWEN. (1866) 35 L. J. Ch. 317 ; 14 W. E. 422. Shutters seldom removed. — In 1887 the defendants cleared certain land with the oljjoct of erecting buildings thereon, of a greater elevation than those previously existing. They, from time to time, submitted plans of the proposed buildings to the plaintiffs, the owners of a wool warehouse adjoining, who refused to approve of the plans, because the proposed buildings would obstruct the access of light to the plaintiffs' warehouse. On the trial of an action by the plaintiffs, for an injunction, it was not disputed that the plaintiffs' windows were ancient, but tlie defendants argued inter alia that as the windows were fitted with movable shutters, and these shutters were only removed upon comparatively rare occasions, the user of the windows was not such as entitled the plaintiffs to a right to liglit. On a reference to arbitration the umpire found that the access of light to certain of the windows would be interfered with by the proposed buildings. Kay, J., held, that if the owner of tlie building has the amenity or advantage of using the access of light, it is " enjoyed " within G4 ANCIENT AND OTJli:iI LIGHTS tlie meauiug of the Prescrlptloii Act, 1832, § 3. A continuous user is not necessary. If window-openings have remained unelianged for twenty years, and tlie shutters thereof, so formed, as to be ()}){Mied and closed at pk'asure, the onu>i probandi is on the owner of the adjoining land, to show that the right has not been acquired. COOPER V. STRAKER. (1889) 40 Cli. D. 21 ; 58 L. J. Cli. 2G ; 59 L. T. 849 ; 37 W. E. 137. Skylights. — The plaintiffs were the owner in fee-simple and the tenant of a cottage, which they alleged contained ancient liglits, viz. a window on the ground floor, another in the room above, botli looking into a passage, and a skylight in the roof. The defendant was the owner of the adjoining premises, and proposed to erect buildings thereon wldch the plaintiffs alleged would materially diminish the amount of light coming to their windows and skylight. The defendant alleged that tlie plaintiffs liad bought their house merely in order to extort money from any person who would propose to build on the defendant's land, that the action was, therefore, o})pressive ; and that it was not a case for an injunction but for damages. Buckley, J., held, that the windows in question were ancient lights, and would be materially interfered with by the proposed buildings, that it was not extortion or oppression on the part of the owner of an easement to ask a price which the property for exceptional reasons in fact commanded ; and granted an injunction. The ])rinci})le upon which the Court will give damages instead of an injunction discussed. GOWFER & ANOTHER v. LAIDLER. (1903) 2 Ch. 337; 72 L. J. Ch. 578; 89 L. T. 409; 51 W. R. 539. Skylight. — In 1901 the defendant erected certain buildings at the Ijack of his premises, and obstructed the access of light to a skylight, which formerly had formed the sloping roof of a conservatory built in 1873, but at the time when the obstruction took place it covered a passage. The side window of the con- servatory opened on to and overlooked the defendant's land, and the plaintiff paid one shilling a year by way of acknowledgment for permission for this easement until 1888, when the conservatory was removed and the side window was closed up. In an action for an injunction, Joyce, J., held, that the skylight was a " window overlooking" the defendant's property within the terms of the agi-eement, consequently the access of liglit had been enjoyment iflto ANCIENT AND OTHER LIGHTS G5 by "consent or agi-ecmcnt" in writing within § 3 of the Prc- scription Act, 1832, and the action failed. On appeal, the Court {Vavghan- Williams, Stirling, and C ozcns- Hardy , L.JJ.) ajffirmed this decision. EASTON V. ISTED. (1903) 1 Ch. 405; 72 L. J. Ch. 189; 51 W. E. 245; 87L. T. 705. Skylights. — The defendants were about to erect lofty buildings which would materially obstruct both the lateral and vertical light coming to and through the skylights, which were ancient lights, of the top storey of the adjoining premises used as a builder's lumber-room, but capable of being used as a carpenter's shop. In an action by the owner thereof to restrain the defendants from so building, Kekcwich, J., held, that the plaintiff was entitled to have the uninterrupted access of light through the ancient skylights for any purpose, and giunted a perpetual injunction with costs. HARRIS V. KINLOCK & CO. (1895) W. N. 60. Skylight. — Certain premises were demised by the Skinners' Company in 1866, for a term of eighty years, " with all lights, easements, &c., thereto appertaining," and with a covenant for quiet enjoyment. Two years later they were demised to the plaintiffs for a term of twenty-one years, tlie conveyance having the same general words. The principal rooms in the premises were lighted by a skylight in the roof, and a well in the first and the ground floors. The building which stood on the site previously was lighted in the same way, and the enjoyment had been un- interrupted for forty years. The lessees of the land adjoining, whose lessors were also the Skinners' Company, commenced to build according to plans approved by the lessors, so as to raise the party wall 30 feet higlier than that to which the plaintiffs had built it. A perpetual injunction was granted by Jes^el, M.R. On appeal the Court (Mcllish and James, L.JJ.) held, that there was no difference in the right to the ordinary easement of light whether acquired by prescription or grant ; if the latter be accompanied by a covenant for quiet enjoyment, such covenant does not enlarge the right of the covenantee, so as to entitle him to an injimction in equity to restrain an obstruction where the damage is not sufficient to enable him to maintain an action at law. But where an easement is created by a covenant, the M.B.C. F CG ANCIENT AND OTHER LIGHTS Court of Equity will grant an injunction without regard to damage, LEECH V. SCHWEDER. (1874) L. E. 9 Ch. 463 ; 43 L. J. Ch. 487 ; 30 L. T. 586 ; 22 W. K. 633. Skylights. — The plaintiff and the defendant were respective owners of two adjoining houses. At the rear was a party wall which supported the ends of two lean-to skylights, lighting the ground floors of the respective premises, the upper portions resting against the walls of the respective houses. Both parties, being desirous to rebuild, agreed verbally that the plaintiff should at their joint expense pull down and rebuild the party wall, and that each should be at liberty to make a lean-to skylight resting upon the wall, and running up to the first-floor window-sill. The plaintiff built the party wall, paying half the cost, and erected a lean-to skylight, as agreed. The defendant, however, instead of building a lean-to, shaped his skylight so as to obstruct the access of light to the plaintiff"s premises. The plaintiff brought an action for a mandatory injunction, and Kcuj, J., held, that the effect of the parol agreement was to give each party an easement of light over the land of the other, and as the plaintiff had performed the agree- ment on his part, he was entitled to have it enforced on the part of the defendant. Mandatory injunction granted. McMANUS v. COOKE. (1887) 51 J. P. 708; 35 Ch. D. 081; 56 L. J. Ch. 662; 56L. T. 900; 35 W. E. 754. ■ Skylight and Dark Room. — In 1890 the plaintiffs, who were photographers, rented certain premises with ancient lights, viz. : — a skylight in the studio, and another in a dark room. Sub- sequently the skylight in the studio was removed, and the whole roof glazed. In 1900 the defendants began to erect a building which interfered with the access of light to the plaintiffs' premises. A building had formerly, until 1884, stood on the site, but the new buildings iutciTuptcd the access of light to the plaintiffs' premises more than the old building. The plaintiffs claimed a mandatory injunction, and the defendants pleaded that as to the light ill the dark room it had been abandoned. Farwcll, J., held, that the light, so far as it was ancient, must not be substantially interfered with, and that the Court would take into consideration the nature of the business carried on, and that there was no abandonment. PARKER V. STANLEY & CO. (1902) 50 \V. U. 282. ANCIENT AND OTHER LIGHTS 67 Skylights and Glass Doors.— The lessees of certain premises carried on their business in a workshop at the rear, the light to which was furnished by two skylights and a glass side-door, which were claimed as ancient liglits. The adjoining premises were separated from the worksliop by a party wall, 8 feet high, and the adjoining owner pulled down and rebuilt the wall, raising it to a height of 23 feet, contrary to the warnings of the plaintiff, wlio claimed a mandatory injunction to restrain the defendant from maintaining the wall, so as to obstruct the plaintiffs ancient lights. The defendant alleged that from time to time he had maintained for many years previously a pile of boxes and packing- cases to a height exceeding 23 feet, and denied the alleged obstruction. It was, however, proved that the pile was from time to time removed. North, J., held, that there had been an inter- ruption in the plaintiff's enjoyment of the easement, and dismissed the action without costs. The plaintiff appealed, and the Court (Cotton, Lindlei/, and Lopes, L.JJ.) held, that there had been no interruption of the plaintiff's enjoyment, and that he was entitled to an inquiry as to damages. PBESLAND v. BINGE AM. (1889) 53 J. P. 583 ; 41 Ch. D. 268 ; 60 L. T. 433 ; 37 W. E. 385. Skylights. — The plaintiff was lessee for a long unexpired term of a certain house, the south side of which adjoined land owned by the defendants. One of the windows in that side of the house lighted a staircase, and there were two skylights lighting a workshop on the plaintiff's premises. The defendants erected a wooden hoarding, 16 feet in height, to obstruct the access of light to the window and skylights, it being the defendants' inten- tion to build to that height on the land. The plaintiff brought an action claiming an injunction to restrain the defendants from building as proposed, so as to interfere with his ancient lights. Fry, J., granted an injunction in reference to the skylights, but refused an injunction as to the staii-case window, and held, that a plaintiff who claims ancient lights must prove affirmatively a p-ima facie case of enjoyment, which the defendant, however, may displace by proving interruption of the enjoyment at some time, or by showing otherwise that the plaintiffs evidence cannot be relied upon. SEDDON V. BANK OF BOLTON. (1882) 19 Ch. D. 462 ; 51 L. J. Ch. 542 ; 46 L. T. 225 ; 30 W. R. 362. 68 ANCIENT AND OTHER LIGHTS Skylight. — The occupier ol' certain premises in the City of London i>l;ic('il a skylight over an area into which an ancient window in tlie adjoining premises looked. The window had l)ccn hlocked up once with hoards for seven years, and subsequently willi l)rick for sixteen months, by direction of an under-lessee, without tlic knowledge of the reversioner. It was proNed that only two of the walls upon which the skylight rested were the property of the defendant. In an action by the owner of the window for obstruct- ing the access of light and air to the window, Lord Tenterden, C.J., held, that a reversioner might maintain an action for a nuisance which does not at present injure the reversion beyond that of riglit, and that the Custom of London does not allow the erection of buildings to any lieight upon old foundations unless the whole of the old foundations are the property of the building owner. SIIADWELL v. HUTCHINSON. (1829) M. & M. 350; 2 B. & Ad. 97; 36 R. E. 497; 4 C. & P. 333; 9 L. J. (o.s.) K. B. 142. Sorting-room. — A seed merchant had used a certain room, with an ancient light, in his premises, for sorting seed, for a period of seventeen years. The adjoining owners erected premises inter- fering with the access of light to the room. Chattcrton, F.C, dismissed a bill for an injunction filed by the seed merchant, and the latter appealed. The Court (Ball, L.C., and Christian, L.J.) reversed, the decision of the Vicc-Ghancellor, and held, that the defendants having caused sucli a diiuinutinn of light as, notwith- standing certain compensative illumination afforded by them, prevented tlie plaintiff from carrying on the delicate operation of sifting seeds in the room, he was entitled to relief, altliough the user was less than twenty years, and sufficient light remained in it for the ordinary purposes of a dwelling-house, and a mandatory injunction was granted in respect of part of the buildings. MAC KEY V. SCOTTISH WIDOW'S FUND. (1877) 11 Ir. Hep. Eq. 541. Special Amount of Light required. — The plaintiffs, who owned certain premises in Leeds opposite to which the defendant was erecting a cathedral, contended that the buildings when erected would interfere witli tlie liglit to which they were entitled and which they had hitherto enjoyed in their premises. On threat of legal proceedings the defendant agreed with tlie plaintiffs to refer the matter to the decision of two arbitrators. They appointed an umpire, who found and awarded that there remained sufficient light to the plaintiffs' premises for ordinary user, but he awarded ANCIENT AND OTHER LIGHTS 69 £600 damages to the plaintiffs if tlic Court should decide that ho was entitled to take into account damages wliich tlic plaintiffs had sustained iu respect of loss of liglit to those parts of tlio premises used for occupation in respect of which a special amount of light was required. Brmj, J., held, that a riglit to a special amount of light necessary for a particular business cannot be acquired by twenty years' enjoyment to the knowledge of the owner of the servient tenement. It is a question of fact whether the user of the premises is one which requires an ordinary or a special amount of light. It cannot be laid down as a matter of law that any particular business, as, for example, that of an architect (one of the plaintiffs' business), is an ordinary business requiring only an ordinary amount of light. AMBLER cO FA WGETT v. GORDON. (1905) 1 K. B. 417 ; 74 L. J. K. B. 185 ; 92 L. T. 96 ; 53 W. K. 300; 21 T. L. E. 205. -Special Amount of Light required. — The plaintiff company were wool-brokers, and the lessees and occupiers of certain premises in the City of Loudon, granted on a building lease, to their pre- decessors in title, who also conveyed, subsequently, other and adjoining premises to the defendant. To test his right to erect a house higher than the existing house l^y 13 feet, the defendant erected a screen, extending the whole length of his house, and 15 feet higher, divided into 15 panels, each of which was covered with an opaque material. The plaintiffs claimed an injunction to restrain the defendant from maintaining the screen or otherwise derogating from the plaintiffs' rights under the leases. One of the plaintiffs' rooms was used for the purpose of sorting and valuing wool, for which a strong light was required, but otherwise the premises would enjoy light sufficient for business as carried on in the City. KeJceiuich, J., held, that it could not impute to the parties to the lease an intention that the demised building should be used for wool-broking, or other Inisiness requiring an extra- orduiary degree of light, but that only a grant of sufficient light for ordinary business purposes in the City of London could be implied, and refused to grant an injimction. CORBETT V. JONAS. (1892) 3 Ch. 137; 62 L. J. Ch. 43 ; 3 E. 25 ; 67 L. T. 191. Special Amount of Liglit required.— Two of the plaintiffs owned a hosiery factory, and the third was the lessee and occupier. The factory was built iu 1860, and contained windows which, 70 ANCIENT AND 0T1II']R LIGHTS down to the time of obstructiou, had eujoyod the access of light in greater quantity than was necessary for ordinary purposes. From 1860 to 1884, it had been used as a boot factory, and from 1884, with a few sliort intervals, as a liosiery manufactory, re- quiiing an unusual degree of light. In 1899 the defendant erected a building which diminished the plaintiffs' light, but still allowed the passage through the windows of enough light for all ordinary purposes. The plaintiffs claimed an injunction and damages. Wright, J., in a considered judgment, held, that the plaintiffs liad no cause of action. IVABIIFN & OTHERS v. BROWN. (1900) 2 Q. B. 722 ; 69 L. J. Q. B. 842 ; 83 L. T. 318 ; 50 W. Pv. 97. Note. — This case was reversed in the Court of Appeal (1902), 1 K. B. 15, and restored by the House of Lords in Colls v. Home & Colonial Stores (1904), A. C. 179. Stained Glass. — The interior of the Guard's chapel is richly decorated, and lighted by windows which were ancient lights, but the stained glass had been only placed therein ten years pre- viously. Tlie defendants proposed to erect a large and lofty block of flats, which would have the effect of restricting the limit of time within which service could be held in the cliapel witliout artificial light, and render less visible tlie works of art, and internal decorations, carried out at a cost of £32,000, subscribed by the public. In an action for an injunction brouglit l)y tlie War Office, Kekewich, J., held, that the cliapel was a " Ijuilding," within the meaning of the Prescription Act, 1832, § 3, and was entitled to protection in respect of the light necessary for conducting the services, and also for the illumination of the works of art. A.-G, V. QUEEN ANNE, &c., MANSIONS CO. (1889) GO L. T. 759 ; 37 W. E. 572 ; 5 T. L. R. 430. Statutory Powers to Extinguish. — The Railway Charing House Extension Act (37 Vict. c. 16) empowers the Railway Clearing Committee to take lands and erect Ituildings thereon for the purposes of the Act. The owner of certain workshops adjoining tlie premises of the committee sought an injunction to restrain them from erecting certain buildings interfering with Ids ancient lights, and Jesscl, M.B., held, that the Clearing Committee could not be restrained by injunction, and that the plaintiff's remedy was under § 68 of the Lands Clauses Act, 1845, wliich was incor- porated with the Clearing House Act. BEDFORD {DUKE OF) v. DAWSON. (1875) L. R. 20 Eq. 353 ; 44 L. J. Ch. 549 ; 33 L. T. 156. ANCIENT AND OTHER LIGHTS 71 Sufficient Light left for Comfortable Enjoyment. — A puLlic- honso, situate at the corner of two streets, had a frontage of 07 feet in one of the streets wliich was but 13 feet wide. The windows of the pulilic bar, the private bar, and the saloon bar, looked on to this street, as also the windows of the \ipper storeys, wliich were used for residential purposes. All these windows wore ancient liglits. On the other side of the street there was a building 32 feet high, with a frontage of 31 feet, opposite the private bar ; there was then opposite the saloon bar a low gateway and wall with a frontage of 20 feet, above which the wall rose to a height of only 20 feet, and next to that a building of 30 feet in height. The owner of these buildings on the other side of the street, pulled them down and proposed to erect buildings to a uniform height of 38 feet, and thus close up the gap of 20 feet between the two old Iniildings referred to. In an action by the lessors and lessee of the public-house for an injunction, Farwell, J., held, that the test whether the interference complained of amounted to an actionable nuisance or not, is not whether so much light has been taken as materially to lessen the former enjoyment and use of the house, but whether so much is left as is enough for the comfortable use and enjoyment of the house according to the ordinary requirements of mankind. Injunction granted in the form of Yates v. Jack (L. E. 1 Ch. 295). HIGGINS v. BETTS. (1905) 2 Ch. 210 ; 74 L. J. Ch. 021 ; 92 L. T. 850 ; 53 W. R. 549 ; 21 T. L. R. 552 ; W. N. 104. Tailor's Workshop. — A tailor used certain premises, of which he was lessee, for the purposes of his business, the ground floor as a shop, and the basement as a workshop. The rear of the premises was separated by 18 feet from a three-storey house, which was two storeys lower than the houses adjoining it. The tailor sought an injunction to restrain the owner of the tliree-storey house from raising that house by 18 feet as he proposed, and thus interfering with the access of light and air to a large ancient light, which lighted the tailor's workshop. The plaintiff proved that the build- ing complained of diminished the sky area by half, and that, in con- sequence, he had to remove the workmen from the workshop to another part of the premises. Kindcrslcii, V.C., granted an injunc- tion, and, as a mandatory injunction was not asked, an inquiry as to damage : and held, that there is no distinction between a right to light and air in regard to town houses and country houses. MARTIN V. HEADON. (1805) L. E. 2 Eq. 425 ; 12 Jur. 387 ; 35 L. J. Ch. 002 ; 14 W. E. 723 ; 14 L. T. 585, 72 ANCIENT AND OTHER LIGUTS Trifling' Obstruction. — The defendant erected a building 30 feet hi'fli from the ground to the ridge, with sloping roof. It was distant 23 feet from a house opposite, and in an action by the owner thereof, for interference with the lights in his house, it was proved that the light to the basement windows entered at an angle of 45° instead of 50°, that to the l)ack parlour windows at an angle of 55° instead of 72°, and that to the drawing-room windows at an angle of 74° instead of 103°, and tliereby the value of tlie premises was materially diminished. Lord Denman, C.J., held, that to sustain the action it was not enough that a ray or two of light should be obstructed. The plaintiff must show that he has less light than before to such a degree that his property is less valuable. PRINGLE V. WERNHAM. (183G) 7 C. & P. 377. Undertaking. — Hcdl, V.C, granted an interlocutory injunction to restrain the defendant from continuing the erection of certain buildings w^hich interfered with tlie plaintiff's ancient lights. The defendant appealed, and offered to give an undertaking to abide ])y any order as to pulling down or altering the buildings, which, at the trial, the Court might make. In view of fresh evidence given on the hearing of the appeal, the Court (Jcssel, M.R., James and Cotton, L.J J) discliarged the injunction, but held, that, without any undertaking, they had power to order the demolition of any building erected after action brought, or notice of objection given by the plaintiff to the defendant. SMITH Y. DAY. (1879) 13 Ch. D. 651 ; 28 W. E. 712. Unfinished Building. — The plaintiffs predecessor in title pur- chased the carcase of a liouse in 1829 and completed the building, but he never completed tlie internal fittings thereof, so that the liouse was not habitable when it was purchased by the plaintiff in 1852. The plaintiff fully completed the house, and resided in it for two years, at the expiration of which he ceased to occupy it, placing a housekeeper in charge ; and tlie house had remained unlet until action brought. The adjoining owner built a room at the back of his house, obstructing the access of light to the plain- tiffs premises. On a special case stated, the Court {Kelly, G.B., Channell, Pigott, aiid Cleasbij, BB) held, that occupation of the house, or its fitness for occupation during the statutory period, were not necessary in order to acquire a right to the access of light ANCIENT AND OTHER LIGUTS 73 by actual enjoyment under the Prescription Act, 1832, and gave judgment for the plaintiff. COURT AULD v. LEGE. (1869) L. E. 4 Ex. 12G ; 38 L. J. Ex. 124 ; 19 L. T. 737 ; 17 W. E. 466. Unity of Occupation. — The plaintiff's house was built in 1804, and liad a plot of ground at the rear used as a garden. In 1817 the occupier of the house used the garden, but paid no rent for it. Subsequent occupiers also had access to the garden, but on what tenure or in what way was disputed. From 1830, 10s. a year was paid by the owners of the house, as tenants from year to year, to the owner of the garden until 1861, when a lease of the garden for ten years at 10s. a year rent was granted. In 1865 the plaintiff purchased the house, and in 1867 the defendant purchased the reversion in fee in the garden and subsequently the residue of the ten-years' lease. In an action by the owner of the house for an injunction to restrain the erection of a row of houses in the garden which interfered with the access of light and air to the house, Stuart, V.C, decreed an injunction. The defendant appealed, and Lord Hatherley, L.C., held, that a right to access of light cannot be acquired under 2 cfc 3 Will. IV. c 71, § 3, by the lapse of time during which the owner, or his occupying tenant, is also the occupier of the land over which the right would extend. During such period of unity of occupation, the running of the twenty years under the statute is only suspended. The decree of Stuart, V.C, was revej'sed. LADYMAN V. GRAVE. (1871) L. E. 6 Ch. 763 ; 25 L. T. 52 ; 19 W. E. 863. TJnity of Ownership. — The plaintiff was tenant from year to year of a public-house from 1823 to 1861. In 1837 his landlord purchase six leasehold cottages and gardens adjoining. Overlooking the gardens were certain windows which were ancient lights. By divers mesne assignments the six cottages and gardens came into the possession of the defendant, who proposed to build against the plaintiff's ancient lights. In an action to restrain the defendant, Page Wood, V.C, granted an injunction, and held, that § 3 of the Prescription Aet, 1832, is retrospective, and that the union of the ownership of dominant and servient tenements for different estates does not extinguish an easement of this description, but merely suspends it so long as the union of ownership survives, and upon severance of the ownership, the easement revives. SIMPER V. FOLEY. (1862) 2 J. & H. 555 ; 5 L. T. 669. 74 ANCIENT AND OTHER LIGHTS Unity of Possession. — The trustees of a will couveyed for value certain preiuises to llie plaintiff together witli all buildings, lights, easements, &c. The defendant's premises were on the same date for value conveyed, together with all lights, &c., to the plaintiff's brother, the defendant's predecessor in title by the same trustees. One of the plaintiff's houses contained ancient lights overlooking the laud of the defendant. The latter having commenced to erect upon this land a row of houses, the plaintiff sought an injunction to restrain the defendant from building so as to obstruct the plaintiffs ancient lights. Jessel, M.R., granted the injunction, and held, that when the owner of a dwelling-house and adjoining land sells the house to one person, and the land to another, under con- temporaneous conveyances, either purchaser being aware of the conveyance to the other, the purchaser of the land is not entitled to build thereon so as to obstruct the lights of the house. ALLEN Y. TAYLOR. (1881) 16 Ch. D. 355 ; 50 L. T. Ch. 178. Unity of Possession. — The owner of a vacant plot of land began to build upon it, so as to interfere with lights in an adjoining house which had existed from time immemorial. The adjoining owner had enlarged the lights. There was evidence that in the year 1849 there was unity of possession of both premises, but there was no evidence that at any time there had Iteen unity of title. Jessd, MM., gave a decree granting an injunction, restrain- ing the owner of the vacant plot from interfering with certain of the lights. On appeal, the Court {Mdlish and James, L.JJ.) held, that the right to light was not lost by enlarging the lights of the dominant tenement, that the Prescription Aet, 1832, has not taken away any of the modes of claiming easements which existed before the statute, and that an owner of ancient lights is entitled to an injunction, and not merely damages if he files the bill before the building complained of is commenced. AYNSLEY V. GLOVER. (1875) L. E. 10 Ch. 283 ; 44 L. J. Ch. 523 ; 32 L. T. 345 ; 23 W. E. 457. Unity of Possession. — The owner of a plot of ground with a house thereon, granted a lease of the house, and subsequently conveyed the house, subject to the lease, to the plaintiff, and the plot of ground pursuant to a prior agreement to the defendant. The plaintiff subsequently recovered possession of the house from the lessee for breach of covenant. The defendant began to build on his plot so as to obstruct the access of light to the plaintiff's ANCIENT AND OTHER LIGHTS 75 house, and the plaintiff sought an injunction to restrain the defendant from huilding as proposed, and for damages. Chitty, J., held, that no grant of light to the house could be implied over land wliicli the owner had contracted to sell before the sale of the house, and that § 6 (2) of the Conveyancing and Law of Fr&pcrty Act, 1881, did not apply. BEDDINGTON v. AT LEE. (1887) 51 J. P. 484; 35 Ch. D. 317 ; 56 L. J. Ch. G55 ; 56 L. T. 514 ; 35 W. R. 799. Unity of Possession. — The owner in fee of certain premises enjoyed free access of light and air to a window therein for sixty years. In 1846 the adjoining owner built a wall in his garden which obstructed the access of light to the wmdow in question. For sixty years prior to 1846 the garden had been occupied by the owner in fee and by his father, as tenants from year to year. The owner in fee brought an action for an injunction against the adjoin- ing owner, and the latter contended that unity of possession prevented the acquirement of the right to the light in question. Pattcson, J., adopted this view, and entered a nonsuit with leave to the plaintiff to move. On hearing a rule, the Court {Parke, B., and Pattcson, J.) discharged the rule, and held, in a considered judgment, that if the dominant and servient tenements are, during the prescribed period, in the occupation of the same person, no prescriptive right can be acquired. HABBIDGE v. WABWICK. (1849) 3 Ex. 552 ; 18 L. J. Ex. 245. Unity of Possession. — The plaintiff's house was built in 1793, and in 1800 the plaintiff's predecessor in title entered into posses- sion of certain adjoining premises 87 feet by 26 feet under a lease from the Dean of St. Paul's. In 1813 the plaintiff's predecessor in title ol^tained a building agreement in respect of adjoining premises from his landlords, the Goldsmiths' Company. In 1823, pursuant to such building agreement, a lease of the premises was granted on the building being erected. In April, 1853, the com- pany leased to the plaintiff, and his predecessor in title, since deceased, the above house, and certain other premises, " and all cellars, lights, easements, &c." In 1875 the company agreed to grant a lease of the site of the liouse and other adjoining premises and " all lights, rights, casements, &c." to the plaintiff as soon as a certain building was erected thereon. In the previous year the company had agreed to grant a lease of the adjoining premises to the defendants, " and all lights, rights, casements, ways, cCr." In an action by the 70) ANCIENT AND OTHER LIGUTS plaintiff for an injunction the defendants admitted that the Ijuihlings which tliey had erected and were complained of would ilarken tlie plaintiff's lights, and Malins, V.C, held, that there was an ancient light in the plaintiff's premises for twenty years prior to 1813, when unity of possession commenced, and granted the injunction in respect of it; but refused an injunction as regards all the other lights. WARNER Y. McBRIDE. (1877) 3G L. T. 3G0. Unity of Title. — The lessee of certain premises covenanted that he, his heirs, and assigns, would not do anything to the premises that might be an annoyance to the neighbourhood, or to the lessees or tenants of the lessors, their heirs or assigns, or diminish the value of the adjacent property, or erect any biuldings nearer than 20 feet to the road or without the lessors' approval of the plans thereof. Some years later the same lessors demised the adjoining premises, the lease containing identical negative covenants as those just enumerated. Within twenty years the successors in title to the first-named lessee began to build upon the premises, with the approval of the lessors, in such a way as to darken the windows of the houses on the adjoining premises above referred to, the owner of which sought an injunction to restrain the lessors and the lessees from building as proposed. Bacon, V.C, held, that the plaintiff could not enforce the restrictive covenants, but granted an inquiry as to damages, and the defendants appealed. The Court (James, Baggallay, and Bramwell, L.J J.) held, that the plaintiff was not entitled to relief either on the principle that the lessor could not derogate from his grant, or on the ground that the restrictive covenants in the defendant's lease enured for the plaintiff's benefit. MASTER V. HANSARD. (1877) 4 Ch. D. 718 ; 46 L. J. Ch. 505 ; 36 L. T. 535 ; 25 W. E. 570. Unity of Title. — The plaintiff was the assignee of a lease granted in 1864 of certain land, demising all rights and appurte- nances, legal, used, or reputed, to the said land, except such rights as might restrict the use of any adjoining land or the conversion at any time thereafter of such land for building purposes, for a term of 999 years at an annual rent. The defendant, M'ho held under a lease granted in 1865 from the same landlord, containing a similar exception to that in the plaintiff's lease, began to make an addition to her house in July, 1887, which would approach 18 feet nearer to that of the plaintiff, ANCIENT AND OTIIEPv LIGHTS 11 and iiiLciferc with tlie access of liglit and air to the plaintiff's premises. The plaintiff sou.^ht an injunction to restrain the defendant from interfering with her ancient lights, and the Deputy Vice- Chancellor of the County Palatine of Lancaster refused to grant the same, on the ground that the action was barred Ijy the terms of the lease, granted in 1864. From this decision the plaintiff appealed. The Court {Cotton, Lindlcy, and Lopes, L.JJ.) held, that the exception restricting the free use of the adjoining land did not operate as an agreement or consent by the lessee that the adjoining owTier might always have a right to obstruct the access of light to the plaintiff's house, within the exception in § 3 of the Prescription Act, 1832, and therefore the plaintiff had acquired an absolute prescriptive right to the light, and was entitled to the injunction. MITCHELL V. CANTRILL. (1888) 37 Ch. D. 56; 57 L. J. Cli. 72; 58 L. T. 29; 36 W. E. 229. Mode of User and Position must be the Same. — There were two ancient lights in the rear of certain premises, one a few feet from the ground and the other higher up in the wall. The owner thereof in rebuilding retained them in the new wall, and altered them into French windows opening inwards, having new light frames, so that more light was admitted than formerly, and tlicy gave gi-eater facility for outlook over the adjoining premises. There had also been iron bars to the windows previously. In an action by the owner of the lights against the adjoining owner who had erected a screen to obstruct the access of light thereto, Kindcrsley, V.G., held, that the mode of user must not be sul)- stantially departed from, and that the position of the lights must not be altered nor their size increased. But they may be re- placed by windows of an improved structure that let in more light and air. TURNER v. SPOONER. (1861) 1 Dr. & Sm. 467 ; 7 Jur. 1068 ; 30 L. J. Ch. 801 ; 9 W. E. 684 ; 4 L. T. 732. Verbal Licence. — The owners of certain premises gave verbal permission to the adjoining occupier in 1864 to open two windows in a party wall separating the two tenements. At that time there were in the party wall three other windows opened within the previous twenty years by the adjoining occupier without reference 78 ANCIENT AND OTHER LIGHTS lo the owners of the adjtMuiug premises. lu 1875 the owners, who were about to alter their premises, gave notice under the Metropolitan Building Act (18 & 19 Vict. c. 122) of an intention to block up all five windows, and to raise the party wall separating the areas of the two tenements to such a height as would darken eiglit ancient lights opening into the area of the adjoining occupier. Eighteen years before date of notice the adjoining occupier had erected a conservatory in the area above the eight ancient lights, wliicli materially diminislicd the light coming thereto. In an action by the adjoining occupier, Malins, V.G., held, that he was entitled to an injunction restraining the threatened darken- ing of any of the thirteen windows. BOURKE V. ALEXANDRA HOTEL CO. (1877) 25 W. R. 782. Verbal Licence. — The reversioners of certain premises brought an action, in 1840, for obstructing the liglit to twenty-four windows in a house, which had been built in 1815, on the site of old buildings, but which had been advanced a few feet nearer to the defendants' premises. The defendants, to test their rights, erected a screen which obstructed the lights claimed as ancient, and the plaintiffs brought their action. Tindal, C.J., held, that enjoyment for twenty years, even by permission asked for verbally by the occupier of a house, and given by the person having the right to obstruct, is sufficient to confer a right under § 3 of the Foxscription Act, 1832. Enjoyment under that section need not be as of right or adverse. CORPORATION OF LONDON v. FEWTERERS' CO. (1842) 2 M. & R. 409 ; 62 R. R. 816. Wall at Right Angles to Lights. — The defendant erected a wall at riglit angles to the l)ack of plaintiifs house, thcrel)y obstructing the plaintiffs ancient lights. The plaintiff proved that a sub- stantial amount of sunlight would be sliut out from his lights. Kekeivich, J., following Laiurcncc v. Horlon (38 W. R. 555), granted a mandatory injunction. • SHIEL V. GODFREY. (1893) W. K 115. Workshops. — Tlie occupier of a factory built in 1796 opened a window in order to light a workshop in 1798. The premises were held on lease for a term expiring in 1820, of which the plaintiff's predecessor in title was assignee. A new lease was granted to him for a term from July 6, 1820. On his bankruptcy APPEAL TO QUARTER SESSIONS 79 the predecessor in title assigned the lease lasti mentioned to his assignee in bankruptcy, who granted an under-lease to the plaintiff. The defendants entered into possession in 1802, and were granted a new lease by the plaintiff's lessor for a term from July 6, 1820. The plaintiffs and the defendants' premises, at the time of making the window, belonged to the same owner in fee. In an action to restrain the defendants from obstructing the access of light to the plaintiff's window, the Court {Bayleij, J., and others) gave judgment for the defendants, and held, that where a window has been opened in a building erected by the tenant, for the mere purposes of trade, and which is not annexed to the freehold, but may 1)0 removed by the tenant at his pleasure, or at the end of his term, no right of action or presumption of a grant can arise. MABERLEY v. DO WSON. (1827) 5 L. J. (o.s.) K. B. 261. Workhouse. — The plaintiffs owned in fee certain premises used as a workhouse, and occupied by paupers, who in the decla- ration were alleged to be tenants of the plaintiffs in occupation of the workhouse. The defendant was sued for stopping up certain ancient lights, and erecting a privy, so as to cause a nuisance, and at the trial the defendant objected that neither the master of the workhouse nor the paupers were tenants of the plaintiffs. McDonald, C.B., held, that the defendant's objection was fatal to the count. If a building after having been used as a malthouse is converted into a dwelliug-house, in its new state it is entitled only to the same degree of light as was necessary for it in its former state, and the owner of the adjoining ground may lawfully erect a wall which prevents the admission of sufficient light for domestic purposes, if what light is left would be sufiicicnt for making malt. MARTIN V. GOBLE. (1808) 1 Camp. 322. APPEAL TO aUARTER SESSIONS The owner of certain premises was summoned under § 75 of the Metropolis Local Management Act, 1862, for having erected a building beyond the general line of buildings in the street, and a police magistrate made an order for its demolition. The owner entered an appeal to Quarter Sessions, and the Sessions upheld an objection raised to their jurisdiction. On hearing a rule calling upon the justices at Quarter Sessions to show cause why a man- damus should not issue, the Court {Lord Coleridge, C.J., and Grove, J.) held, that the order of a justice directing the demolition of a building under § 75 of the Act, was not an adjudication " with 80 ARBITRATION respect to a penalty or forfeiture " williiu § 231 of the Metropolis Local Management Act of 1855, and, therefore, no appeal to quarter sessions would lie against the order. R. V. JUSTICES OF MIDDLESEX {EX PARTE ELSDON). (1882)46 J. P. 551 ; 9 Q. B. D. 41 ; 51 L. J. M. C. 94; 30 W. E. 657. ARBITRATION No Jurisdiction to Serve out of the Jurisdiction a Summons to Enforce Award. — Upon an application ex parte Ijy Wulfert a master gave leave to issue a summons directed to Pasch & Co., ■vvho were foreigners resident out of the jurisdiction, for leave to enforce the award of an arbitrator as a judgment or order to the same effect under § 12 of the Arhitration Act, 1889, and for service of the summons by sending a copy by post addressed to the appellants in Germany and by leaving a copy with their solicitor in London. The award stated that by a written agree- ment between Easch & Co. and the Hanover Wall-paper Com- pany (under which style Wulfert carried on business) the former appointed the latter sole agents for the sale of their goods in the United Kingdom for three years, and it was agi-ecd that any dispute arising under the agi'eement should be submitted to tw^o arbitrators, one to be appointed by each of the parties, subject to the provisions of the Arlitratioii Act, 1889 ; tliat a dispute having arisen, the Hanover Wall-paper Company had appointed an arbi- trator, but that the appellants had failed to do so, and thereupon the former had appointed their arbitrator to act as sole arbitrator, and that he had proceeded witli the reference in the absence of Pvasch & Co., and awarded that they should pay certain damages for breach of the agreement. The master decided that there was no jurisdiction to allow service of the summons upon Easch & Co. out of the jurisdiction, and dismissed the application. Upon appeal the Judge reversed the decision of the master as to the service of the summons, and referred the matter back to him to determine on the merits, Ijut gave leave to appeal. Tlie Court {Collins, M.R., and Mathcw, L.J.) held, that there was no jurisdiction to allow service on the appellants out of the juris- diction of a summons for leave to enforce the award under § 12 of the Arhitration Act, 1889. RASCH & CO. V. WULFERT. (1904) 1 K. B. 118 ; 73 L. J. K. B. 20; 89 L. T. 493 ; 52 W. E. 145 ; 20 T. L. E. 70. ARBITRATION 8 1 Submission Irrevocable. — By an arljitiatiou clause in a buildoi's contract the contractor agreed with a public company that disputes between the parties arising out of the contract sliould be settled by the engineer for the time being, whose decision should be final and binding and without appeal. Extensive deviations from the plans were ordered by the engineer, which, the contractor alleged, were unnecessary, and resulted in the execution of but £18,800 worth of the work proi)Osed originally, and extras to the value of £43,600. Owing to certain delays the work was not completed until two years after the stipulated time, when the contractor sent in a claim for a further payment on account of extras and delay, and objected to the reduction of certain items amounting to £5000 by the engineer, who refused to assign any reason for such reduc- tion. The company directed the engineer to hold an arbitration under the contract, and the contractor moved to revoke his sub- mission to arbitration, on the gi"Ound that the engineer was unfit for certain reasons which were stated. The Court {Day and Collms, JJ.) held, that the submission to arbitration could not be revoked unless they were satisfied that the arbitrator could not deal with the matters in dispute impartially, or without adjudicating upon his own neglects and faults ; the contractor is not entitled to have his submission revoked on the ground that he has claims in respect of the work done, not within the arbitration clause, with which it would be convenient to try disputes within that clause. Motion dismissed. DONKIN & THE LEEDS CANAL CO., IN RE. (1893) H. B. C. 181. ARCHITECT Arbitrator in Disputes. — A building contract provided, inter alia, that any difference or dispute arising in connection there- with was to be referred to the architect as sole arbitrator. The specification provided that " sharp fresh-ivater sand " was to be used in the construction of the building. After the contractors liad used sand made by gi'inding down fragments of stone, without objection by the employers, for some time, the latter objected, and referred the matter to the arbitrator. The arbitrator made his award in favour of the employers. The contractors called upon tlie arbitrator to reconsider his award, and an interdict was pre- sented by the employers to stay furtlier proceeilings before the arbitrator. The Court (the Lord President, and Lords Dcas, Mure, and Shand) held, that as there could be no dispute as to M.B.C. G 82 ARCHITECT tlie meauiug of the words " sharp fresh-water sand" the employers hail mistakou thcnr remedy in applying to the arhitrator, GREENOCK BOARD v. COGHILL. (1878) 5 Ct. of Sess. Cas. (4th Ser.) R. 732. Arbitrator. — A huiUlcr undertook to sign a contract for certain works according to rough sketches and verbal explanations. The architect, acting for the building owner, subsequently sent to tlie builder for signature a contract to perform the works according to plans differing from the rough sketches, which contract the builder signed without any examination, and he completed the works in accordance with the plans annexed. In an action for an account. Lord Romilly, M.R., held, that as the mistake under which he signed the contract was due to his own negligence, and he had taken no steps to rectify the contract when he liad discovered it, he was not entitled to any relief. In this contract the architect was the arbitrator in respect of extra works ; he had guaranteed to his employer that the works would not exceed a certain sum, but the builder did not know this when he signed the contract. The Court held, that the guarantee was a material fact influencing the architect's decision, and as it was not disclosed to the builder, he was not bound by the submission to the architect's arbitration, and the Court would perform the part of arbitrator. KIMBERLEY v. DICK. (1872) L. R 13 Eq. 1 ; 41 L. J. Ch. 38; 25 L. T. 476; 20 W. E. 49. Arbitrator. — A building contract provided, that all disputes in reference to the contract were to be decided by a named architect whose decision was to be final, and that in certain events the employers might enter upon the premises and take possession of the works and complete them, and for that purpose might use or sell the plant of the contractor. In an action by the contractor to recover balance of the account and damages in respect of his plant seized, the Court held, that the action was not excluded by the clause of reference, that it was not clear that the clause gave the arljitrator power to decree the payment of money, that some of the questions did not fall within the reference, and that the arbitrator could not assess damages. TOUGH V. DUMBARTON, &c., COMMISSIONERS. (1872) 11 Ct. of Sess. Cas. (3rd Ser.) R. 236. Authority of. — The defendant employed a certain architect to invite tenders for and to superintend the erection of some ARCHITECT 83 houses, according to plans and specification. A man contracted for tlic plasterers' work at a certain sum, and sul)-contracted with the plaintiff to do the work. In tlie course of tlie execution of the work the architect, to tlie knowledge of the defendant, ordered the plaintiff to do the work l)y a more expensive process than that intended and specified, and told him he would be paid extra for so doing. Martin, B., held, at the trial of an action Ijy the plaintiff for the increased cost, that there was evidence of a contract to pay the plaintiff extra for the work, and of authority in the arcliitect to make such a contract with him. WALLIS V. ROBINSON. (1862) 3 F. & F. 307. Approval of Position, &o., of Building.— The purchaser of a plot of land covenanted to build upon it within twelve months a dwelling-house of the value of £250 under the superintendence and to the satisfaction of the vendor's architect. After the prescribed period had expired the purchaser proceeded to build a house of the stipulated value, but in a position of which the architect disapproved. The vendor sought an injunction to restrain the erection of the house except in accordance with the covenant, and Malins, V.C, held, that the defendant had committed a breach of covenant, and granted the injunction. GOOLDEN V. ANSTEE. (1868) 18 L. T. 898. Award not a Condition Precedent to Action by Employer. A building contract provided that in case of any difference arisino- between the builder and the employer, the award in writino- of the architect in all matters connected with the execution of the works, or value of extras, &c., or as to the meaning of the plans and specification, should be final, and such an award should be a condition precedent to any proceedings whatever in respect of the subject of the award. In an action by the employer against the builder, for failure to carry out the contract, the Court held, that the architect's award was not a condition precedent to an action by the employer against the builder for non-completion of the buildings. MANSFIELD v. DOOLIN. (1869) 4 Ir. Reps. C. L. 17. -Certificate a Condition Precedent to Payment. — The defendant made a contract with a builder for the execution of certain works, to be completed to the reasonable satisfaction of the defendant's 84 ARCHITECT architect. No additions or alterations were to be admitted unless directed by the defendant or his architect in writing, and the final payment was to be subject to the architect's certificate that the whole work had been completed to his satisfaction. The architect checked the builder's accounts, and sent them to the defendant, but he did not certify that the works were completed to his satisfaction. The plaintiff brought an action for payment of certain extra works, but was non-suited at the trial liy Tindal, C.J. On appeal, the Court [Tindal, C.J., and three other judges) held, that the issuing of the architect's certificate was a condition precedent to bringing the action, and to payment. MORGAN V. BIRNIE. (1833) 9 Bing. 672 ; 3 M. & Sco. 76. Certificate Conclusive. — A firm of decorators agreed to do certain work for the owner of certain premises, which was to be subject to the approval of the owner's architect, and without his certificate no payment on account or otherwise was to be made. Certain variations from the contract were made, and on com- pletion of the work the firm demanded payment of a larger sum than was certified by the architect, and brought an action to recover the amount. The owner sought an injunction in equity to restrain the firm from prosecuting their action, and Malins, V.C, held, that the plaintiff could as well plead at law as in equity that the architect's certificate was conclusive under the contract, and there was no equity to justify the bill, and he refused an injunction. DE WORMS {BARON) v. MELLIER. (1873) L. E. 16 Eq. 554. Certificate Conclusive. — Certain building works under contract were to be carried out in accordance with the directions of the appointed architect, who was empowered to order the removal of impro})er materials and the re-erection of work not done in accordance with the drawings and specification. The contractor was to be paid on the architect's certificates, which, however, were not to be considered conclusive evidence of the sufficiency of any work or materials. A clause provided that disputes as to any matter arising out of the contract, except certain specified matters, were to be determined l)y arbitration, the arbitrator having " power to open up, review and revise any certificate, opinion, decision, requisition, notice, save as regards tlie excepted matters." The contractor sued the building owner to recover sums due on certificates given by the architect, and the defendant alleged ARCHITECT ^ as a defeuce that the work done and materials supplied were defective. Farwell, J., held, tliat the certificates were conclusive and gave judgment for the plaintiff (1904), 2 Ch. 261, which was appealed from. The Court of Appeal {Collins, M.B., Stirling and Mathevj, L.J J.) held, that the arbitration clause destroyed the finality of the certificates and that the defendant was entitled to set up the defence and counterclaim pleaded, and reversed the judgment of Farwell, J. ROBINS v. GODDAIW. (1905) 1 K. B. 29-1; 7-4 L. J. K. B. 107 ; 92 L. T. 10. Certificate of Completion is Conclusive. — A builder agreed to repair a house according to plan and specification to the satis- faction of a certain architect, under whose directions the work was to be executed. Old lead was to be allowed for according to the specification. The architect certified that the work was complete. In an action before Byles, J., by the builders, against the owner for the amount due, the plaintiff obtained a verdict. On appeal, the Court (Bovill, C.J., Keating and Smith, J J.) held, that no evidence could be received from the defendant that the work was not done according to the plan and specification, and that, unless the plaintiff could prove that he had informed the defendant, or the arcliitcct, of his having allowed for the old load in his estimate, he must deduct the value from his claim. HARVEY v. LAWRENCE, (1867) 15 L. T. 571. Certificate Conclusive in the absence of Fraud. — The plans of a proposed Iniilding were prepared by a certain architect, and the quantities were taken out by a surveyor. A builder, who had sent in a tender which was considered too high, submitted a revised tender, on revised plans and specifications, for a lump sum. Sub- sequently it was agi'eed that the contract was not to be for a lump sum, but should be paid for according to the prices and measure- ments in the revised bills of (piautities, which were sealed up and made part of the contract. It was also provided that deviations should only be made to comply with statutory requirements, or on the written order of the architect, and that the certificate by the architect, showing the final balance due on the contract, should be conclusive evidence of due completion, and of the contractor's right to receive payment of the final balance therein certified. The architect certified on completion of the works for payment of a certain sum " as certified hi/ the measuring surveyors 86 ARCHITECT to he the final amoitnt due " on the contract. In an action by the builder for the amount stated to be the balance in the final certificate of the architect, the defendants pleaded that the certifi- cate was bad, and counterclaimed for money had and received, and for damages. Lord Coleridge, C.J., held, that, in the absence of a charge of fraud against the architect, his certificate was conclusive, and entered judgment for the plaintiff. On hearing a rule obtained by the defendants, the Court {Lord Coleridge, C.J., Grove and Lindlcjj, JJ.) held, that the certificate was conclusive, even if based on the measurements made by another person for the architect, provided it was not shown the architect had acted corruptly, or al)dicated his duty. In a building contract, where it is stipulated that the architect's certificate, " or an award of the referee" is to be conclusive, his certificate cannot be a subject of reference to the referee. CLEMENCE v. CLARKE. (1879) H. B. C. 207. Certificate of. Final. — The Commissioners contracted with a builder for the erection of certain buildings. The contract pro- vided, inter alia, that additions, &c., were to be paid for at the contract prices as the architect considered just, the architect might vary the work, and at his discretion extend the time fixed for completion in certain circumstances ; that in the event of the contractor l)ecomiug bankrupt, &c., the Commissioners might determine the contract, and take possession of materials, plant, &c., on the ground, and the amount payable to the builder was to be fixed by the architect, whose decision in every matter referred to him was to be final. In an action by the builder against the Commissioners for preventing him from completing the contract, they alleged that the builder had failed to do the work with due diligence in the opinion of the architect. The builder alleged delay on the archi- tect's part in supplying plans, &c. The Court of Exchequer Chamber {Kelly, C.B., Channell, B., Blaclcburn and Mcllor, JJ.; Cleasbij and Figott, BB., dissenting) held, upon demurrer, that the defendants by their acts had prevented the plaintiff from pro- ceeding with the works, and that the rule of law applied, which exonerated one of two contracting parties from the performance of the contract when prevented by the wrongful act of the other party. Decision of the Court of Common Pleas reversed, ROBERTS v. BURY COMMISSIONERS. (1869) L. Pt. 5 C. P. 310 ; 39 L. J. C. P. 129 ; 22 L. T. 132 ; 18 W. E. 702. AIICIJITECT 87 • Certificate not Final— A finii of builders contiactcd to execute certain works for a building owner, and l:)y the terms of the contract it was agreed that the certificate of the architect, showing the final balance due to the contractors, should be con- clusive evidence of the due completion of the works. There was a further clause referring any dispute or difference arising out of the contract between the building owner, or his architect, and the contractor, to the sole decision of the architect. The architect had given his certificate showing the final balance due to the con- tractors ; Init prior to his signing it he knew certain disputes had arisen between tlic contractors and the building owner, as to the completion of the works. In an action by the contractors for the balance certified by the architect, Lawrance, J., entered judgment for the plaintiffs. The defendant appealed, and the Court {Lord Eshcr, M.E., Lopes and Bighj, L.JJ.) allowed the appeal, and held, that if disputes have arisen before the architect's certificate of the balance due is given, it is not final and conclusive ; but otherwise it is. LLOYD V. MILWABD. (1895) H. B. C. 454. Written Certificate of, Necessary. — The defendant agreed to pay to a certain builder a specified sum for erecting two houses, according to plans and specifications prepared by an architect, provided that the architect should, before such payment, certify that the works had been carried out to his satisfaction. The builder sued the defendant for the balance due on foot of the contract, but failed to prove a certificate in writing from the architect, although he proved his verbal approval of the works. The jury found for the plaintiff, and the defendant moved for a new trial on the ground of misdirection by Erlcy C.J. The Court {Erie, CJ., Williams, Willcs, and Bylcs, J J.) held, that to entitle the plaintiff to payment it was not necessary that the architect should certify in writing his approval of the works : it was sufficient if he did so verbally. BOBEBTS V. W ATKINS. (1863) 32 L. J. C. P. 291 ; 11 W. E. 783; 14 C. B. (n.s.) 592 ; 9 Jur. 128 ; 8 L. T. 4G0. . Clause of Reference may not oust Jurisdiction of Court. — A builder contracted to erect certain buildings according to plans and specification thereof by A. and B., architects. By a clause in the contract, all disputes between the parties that might arise out of the contract were to be referred to the decision of " the 88 APiCniTECT architects" The work was subsequently taken out of the builder's hands and o;ivcn to another to complete, and he brought an action for the balance due. The Court {the Lord Justice-Clerk, and Lords Bcnholme and N eaves) held {affirming the judgment of the Lord Ordinary), that the clause of reference, if binding to any effect, was merely executorial and not such as to oust the jurisdiction of the Court in the question raised. McCORD V. ADAMS. (1861) 24 Ct. of Sess. Cas. (2nd Ser.) E. 75. Collusion. — The plaintiff, a builder, agreed to carry out certain building works for the defendant. The work was to Ije done to tlie satisfaction of the defendant's architect, upon whose certificate payment was only to be made. In an action to recover the balance due on the conti-act, the plamtiff alleged that the architect, in collusion with the defendant and by his procurement, refused to certify for the sum due. The Court {Pollock, C.B., and Martin, B.) held, that the plaintiff had a good cause of action. BATTERBURY v. VY8E. (18G3) 32 L. J. Ex. 177; 2 H. & C. 42 ; 9 Jur. 754; 8 L. T. 283 ; 11 W. E. 283. Collusion. — The plaintiff contracted with a certain union to execute certain works for an agreed price, to be paid for hy instal- ments on the certificate of the engineer. The plaintiff carried out the work according to tlie plan and specification ; but the scheme was not a success, and, before the works were completed, the guardians took possession thereof, although the contractor was not in default. An action against the guardians and the engineer for the balance of the contract, and extras, some of which had not been ordered in writing as required by tlie contract, was referred, and the Official Referee found, tliat the engineer had mala fide refused to certify, but tliat the guardians were not in collusion with him, and entered judgment for tlie plaintiff. The union moved to set aside the award, and the Court ( Vaughan, Williams, and Jjawrancc, JJ.) Jield, that the plaintiff's remedy was damages for wrongfully being prevented from completing the contract : the measure of damages being the amount the plaintiff would have been entitled to if the work had been completed, and the engineer had issued such certificates as he should have issued. SMITH V. RO WDEN UNION. (1890) H. B. C. 71. AllCIIITECT 89 Decision Final. — Tlic defeiuliiiits contracted with the plaintiff to build a market-house. The contract provided that no devia- tions, &c., were to l)e allowed for without the written order of the architect of the defendants ; that they should be priced at the contract prices; that no claim in respect thereof should Ije made without production of the written order of the architect, signed when the order was given ; that payments on account of the contract should be made on the certificate of the architect, whose opinion was final as to the value of the work done. If any dispute should arise as to the meaning of the contract, the architect should define the meaning thereof, and his decision was to be final, and also in reference to the value of extras, deviations, &c. In an action brought by the plaintiff for work done, the Court {Erie, C.J., JVillcs, Bylcs, and Keating, JJ.) held, in a case stated, that neither party could raise the question of whether or not there was a sufficient order in writing, or whether a pump, drains, &c., though separately ordered, were part of the contract, as the architect's decision in reference thereto was final. GOODYEAR v. WEYMOUTH COIIFOBATION. (18G6) 1 H. & E. 67; 35 L. J. C. P. 12. Decision Final. — A building agreement provided that all disputes between the parties, arising out of the contract or execu- tion thereof, should be referred to the architect, whose decision was to be final. On completion of the work the builder had it measured and priced, and on the employer refusing to pay the cost thus arrived at the builder brought his action. The employer alleged (1) that the measurements were inaccurate, and (2) that the action was excluded by the above-mentioned provision in the contract. The Lord Ordinary found, that the dispute came within the provision, and dismissed the action. On appeal, the Court {the Lord President, Lords Deas, Mure, and Shand) held, reversing the judgment of the Lord Ordinary, that the question of the measurement of the completed work was not a dispute or difference of opinion " connected ivith the contract or the execution of the work," within the meaning of the clause of reference. KIllKWOOD V. MORRISON. (1877) 5 Ct. of Sess. Cas. (-Ith Ser.) E. 79. Decision Final. — By a contract in writing the plaintiff agreed to erect four houses on the defendant's land, and the defendant agreed to grant to the plaintiff a lease on conqdetion of the works. 90 ARCHITECT The defendant's arcliitect was to certify for payments on account of the contract, &c., and his decision in every matter was final ; and in the event of undue delay, &c., on the part of the plaintiff, the defendant was empowered to employ anotlier builder to complete the work, and sell the buildings and lease the land to otlicr persons. On an application to make this agreement a rule of Court, under § 17 of the Common Law Procedure Act, 1854, the Court {Coclcbum, C.J., Blachhtirn and Mellor, JJ.) held, that even assuming the agreement to Ije " an agreement or suljmission to arbitration " within the section, the clause making the architect's decision final amounted to " words purporting that tlie parties intended that it should not be made a rule of Court." WADS WORTH v. SMITH. (1871) L. R. 6 Q. B. 332; 40 L. J. Q. B. 118; 19 W. E. 797. Extra Work to be ordered in Writing. — A builder contracted to erect a certain workhouse according to plans and specification for £5500, all to be completed by a fixed date. The contract provided that extras were only to be carried out on the architect's written order ; 25 per cent, was to be retained out of every instalment, and paid to the builder thirty days after the completion of the work ; and that the builder should forfeit £10 as liquidated damages for every week's delay in the completion of the work after the specified date. The plaintiff brought an action to recover the balance of the contract and extras, wdiich was referred. The arbitrator found that extras were ordered by the architect in the course of the work, tliat all the works were completed to the satis- faction of the architect, and that final completion was delayed by reason of the addition ordered. Certificates had been given by the architect from time to time for a total of £5000, but the builder had actually received £0300 against the work generally, without any dis tinction as to the nature of the work. No written orders for extras were given by the architect, but letters were put in evidence, signed by the architect, in which allusion to tlie extra works appeared, and directions as to the mode of executing them were given. The Court held, in a considered judgment, that the contract deed meant that written directions were necessary hefore the additional works were done, and that the letters and certificates did not amount to such directions. That the payments made were to be treated as paid on account of the total sum found due to the plaintiff, and the plaintiff could not apply any part of the sum of £6300 to the extra works ; that the plaintiff was not entitled to payment on a quantum meruit, as the defendants, being a corporation, were ARCHITECT 91 incapal)lo of making a new parole conLracL of lIiaL uatuic ; that time was not an essential part of the contract. LAMPRELL v. BILLEIIICAY UNION. (1840) L. R. 3 Ex. 283 ; 18 L. J. Ex. 282. Fees. — A building owner employed an architect to prepare plans, &c., for certain buildings to cost a fixed sum, hut finding the work would cost much more than he was prepared to spend, the owner did not proceed with the works. In an action by the architect for his fees, Lord Coleridge, C.J., told the jury that if, in all the circumstances, they thought the owner was entitled to reject the plans, they should find for the defendant. The jury found for the plaintiff £200. BURR V. RIDOUT. (1893) Times, February 22. Fees. — An architect sued his employer to recover fees, based on 3 per cent, commission on the amount of the lowest tender received and services rendered in respect of a building, the erection of which was not proceeded with. The action by agreement was decided by Lord Coleridge, C.J., who awarded the architect £210 over and above the sum already paid him, but held, that an architect could not recover commission on the estimated cost of a building which is ultimately not proceeded with. FARTHING v. TOMKINS. (1893) 9 T. L. E. 566. _I"ees. — An architect was employed to prepare plans for the erection of certain buildings which were not proceeded with. The owner, however, made some use of the plans. The architect brought an action against the owner for his fees, and the owner pleaded that the plans had been drawn on the footing of their being a competition. The sheriffs gave judgment for the plaintiff. On appeal, the Court {Lord President, and Lords Dcas, Mure, and Sliand) held, that it lay upon the defendant to prove that the architect's employment was gratuitous, which he had failed to do, and they affirmed the decision of the sheriffs. LANDLESS v. WILSON. (1880) 8 Ct. of Sess. Cas. (4th Ser.) E. 289. Fees. — A building owner employed an architect to superintend certain building works, but no reference was made in the contract as to who was to pay his commission. In an action by the architect against the builder employed to execute the works, 92 AllCniTECT LopcSy J., held, that he could not succeed unless the huilder had first received the commission from the building owner, in addition to what was due to him on the contract. lOCKU V. MORTAB. (1885) 2 T. L. E. 121. Fees. — The connuittee of a lunatic asylum agreed with the plaintiff to pay liim a certain sum for acting as their architect and preparing probationary drawings, &c. Pursuant to this agi'cemcnt the plaintiff prepared certain probationary plans and drawings, and was prepared to submit others, when his employment was discontinued. In an action against the committee the plaintiff was awarded £437 10s. by the jury. On hearing a rule, the Court {Jervis, C.J., Maulc, Talfourd^ and Cressivell, JJ.) held, that probationary drawings meant drawings to be approved of by the committee, the commissioners, and the Secretary of State ; that even if the visitors could contract for the payment of plans not approved of, yet there was no contract here which would make them liable for dismissing the plaintiff. MOFFAT T v. DICKSON. (1853) 22 L. J. C. P. 265. Fees. — The owner of a certain estate acrrccd with an architect to lay out the same. The architect was to receive no direct remuneration for that service, but the owner agreed that in the event of any land being sold for building purposes the owner would appoint the architect to act for him in connection with the buildings to be erected thereon, at the remuneration of £1 5s. per cent, to be paid by the parties building. Should the owner dis- pense with the architect's services at any time, he was to remunerate him for his time, trouble, and expense involved in laying out the estate. The owner died before any of the estate was sold, and his executors dispensed with tlie services of the architect, who brought an action against them, claiming £6000. The Court (Jervis, C.J., Maule, Crcssvjcll, and Williams, JJ.) held, on demurrer, that the architect could not recover, as the disposal of the estate for Ijuilding purposes was the event in whicli ho was to have any remuneration. MOFFATT v. LAWBIE. (1855) 24 L. J. C. P. 56 ; 15 C. B. 583 ; 1 Jur. 283 ; 3 W. E. 252. Fees. — The plaintiff was employed as architect by the committee of the subscribers of certain funds to build Mythe AKCIIITECT 93 Bridge across the Severn. In an action ])y the architect against the committee for fees for preparing plans, specifications, and estimates, it was proved, (1) that he was a snijscriljer, and (2) tliat, owing to his omitting to examine the gi'ound where the foundations were to be laid, he was led into an error in Ills estimate, which involved the committee in an additional expenditure of £1G00. Ahluff, C.J., held, that the architect could not recover for the plans, &c., of the works, and that being a subscriber or shareholder he was a partner, and could not maintain an action against the committee, though he suIj- scribed as architect and engineer. MONEYPENNY v. HARTLAND. (1826) 2 C. & P. 378 ; 31 E. li. 672. Fees. — The committee of a club invited designs for a new club house, and accepted those submitted by a certain architect, wlio instructed the plaintiff to prepare bills of quantities. Ultimately, owing to the tenders being too high, the building was not proceeded with. The plaintiff sued the committee for his fees, but the defendants proved that they authorized the architect to procure tenders provided he did not pledge them to pay. The plaintiff was non-suited. RICHARDSON v. BEALE. (1867) Times, June 29. Fees. — The plaintiff was appointed architect to a certain School Board by a resolution, and a minute, signed and counter- signed, under the Elementary Education Act, 1870. By § 30 (1) a School Board is a body corporate having perpetual succession and a common seal ; and by (4) minutes signed by the chairman are receivable in evidence in all legal proceedings without further proof ; § 35 authorizes the appointment of a clerk, a treasurer, and other necessary officers. By the Third Schedule any officer may be appointed by minute of the Board, signed by the chairman, and countersigned by the clerk, if any, and any appointment so made shall be as valid as if made under the seal of the Board. In an action by the plaintiff to recover fees for })lans which he prepared under orders given by minutes, duly signed and countersignetl, Matheio, J., held, that, by virtue of the provisions of the Act, the })laintilf was entitled to recover payment for his services, although the appointment and orders were not under seal. SCOTT V. CLIFTON SCHOOL BOARD. (1884) 14 Q. B. D. 500; 52 L. T. 105; 33 W. E. 368; 1 Cab. & E. 435. 94 ARCHITECT Fees. — An architect was employed to prepare plans, &c., for tlic erection of a proposed residence. The lowest tender obtained, from the builders invited to compete, was too high in the view of the l)nilding owner, who consequently did not proceed with the building. In an action l)y the architect to recover £169, being 3 per cent, on the amount of the lowest tender, as his com- mission, according to the rules of the Eoyal Institute of British Architects, two witnesses called, who were architects, said that the rule relied on was not universally adopted, and they considered that £75 tendered by the defendant was a reasonable remuneration for the services rendered. Kennedy, J., said the rule in question was adopted generally, and in the circumstances awarded the plaintiff £125, being 2^ per cent, on a £5000 estimate, and costs. WHIFHAM V. EVEBITT. (1900) Times, Marcli 22 ; E. B. C. 171. Final Certificate. — By a clause in a jjuilding contract the final balance was not to be paid to the builder until the architect had given his final certificate. He had by letter expressed his satisfaction with the work, but the final certificate was not given until a year later. Twenty per cent, of every payment was to be retained as security until two months after completion had been certified l)y the architect. The builder brought an action for the balance due on the contract within two months after the architect's final certificate, and the Court held, that the intention of the parties was that the architect's satisfaction should be expressed by his final certificate, and, as the action had been brought within two months of the date of the architect's final certificate, they gave judgment for the defendant, but without costs in the circumstances, COLEMAN V. GITTINS. (1884) 1 T. L. E. 8. • Fraud in witliholding Certificate. — A builder agreed to execute certain re})airs to a liouse, to the satisfaction of tlie owner's architect, and alleged that he duly performed the work, l3ut that the architect, in collusion with the owner, and in fraud of the builder, refused to certify his satisfaction with the work, although he had admitted to the builder and his solicitor that he was satisfied with it. In an action by tlie builder against the architect. Grove, J., held, on demurrer, tliat the builder had a good cause of action. LUDBROOK v. BARRETT. (1877) 46 L. J. C. P. 798; 36 L. T. 616; 25 W. E. 649. • Libel of, in Respect of his Profession. — An architect was employed by a committee to carry out the restoration of a certain AKCUITECT 95 church, aud tlie defendant, who had no interest in the employ- ment, wrote to one of the committee, alleging that the arcliitect was a Wesleyan, and could have had no experience in church work, and urged him to avert the loss which must he caused if any of the " masonry of this ancient gem of art " he ignorantly tampered with. In an action for lihel hy the architect, the defendant alleged truth, that the opinion was honestly held hy him, and that the architect could not show experience in church work. The plaintiff recovered £50 damages before Bramwdl, L.J. On hearing a rule obtained by the defendant for a new trial, the Court {Kelly, C.B., and Stephen, J.) held, that the letter was a libel, that there was no justification, and that even if the occasion was privileged, there was evidence of express malice. BOTTERILL v. WHYTEHEAD. (1880) 41 L. T. 588. -Misconduct. — A builder contracted to erect for a lump sum certain houses, according to plans and specification, by a certain date, to the satisfaction of the owner's architect. If extra works were ordered, the time-limit was to be extended, and should the works not be completed by the fixed date, the builder was to forfeit £10 for every week's delay thereafter, and the owner was to be at liberty to complete the buildings, and retain the cost incurred thereby out of the contract money. The contract was to be paid in instalments of £75 for every £100 worth of work done, on the certificate of the architect, who was to be the sole arbitrator in disputes arising out of the contract. In an action by the builder against the owner and the architect, it was proved that the houses were not completed by the time stated, and that extras had been ordered ; and the plaintiff's surveyor stated that a much less sum than the balance due would suffice to finish the work when the architect took possession thereof. Stuart, V.C., made a declaration that the architect had acted improperly, and ordered payment of an amount to be ascertained by an inquiry, and refused an inquiry as to penalties. PAWLEY y. TURNBULL. (1861) 4 L. T. 672 ; 3 Giff. 70 ; 7 Jur. 792. ■ Mistake. — A company employed an architect to prepare plans, &c., for a hall which they proposed to build. The contract empowered the architect to order additions or deductions, and the value thereof was to be ascertained according to the quantities and prices of the bill of quantities prepared by him. All matters in dispute between the contractor and the company were to be 96 ARCniTECT settled by the architect, aud his decision was to be final, and the contractor was to be paid only on his certificate. The contractor brought an action against the architect for negligence in measuring up the extras, and claimed £13G4. On demurrer that the defend- ant was an arbitrator, and, as the defendant did not allege fraud or mala fides, there was no cause of action, the Court {Lord Cole- ridge, C.J., and Denman, J.) held, tliat the functions of an archi- tect in ascertaining the amount due to the plaintiff were not merely ministerial, but such as required the exercise of professional judgment and skill, and that he, therefore, occupied the position of an arbitrator against whom, no fraud being alleged, the action would not lie. STEVENSON v. WATSON. (1879) 4 C. P. D. 148 ; 48 L. J. C. P. 318 ; 40 L. T. 485 ; 27 W. E. 682. Negligence in Certifying. — The plaintiff engaged an architect to prepare plans and specification of a house, and made a con- tract with a builder to erect a house in accordance therewith, for a certain sum, to be paid on the certificates of the architect that the house was properly built in accordance with sucli plans and specification. In an action by the building owner against the architect for negligence in certifying and superintending the work, Fitzgerald, B., held, that the defendant would be respon- sible if guilty of a want of due care and caution in giving his certificates, and that there was upon him the duty of skilled superintendence. The jury found negligence on the facts. ARMSTRONG v. JONES. (1869) H. B. C. 1. Negligence in Certifying. — The plaintiffs were the mortgagee of land and two houses thereon, built under a building agi-eement between the owners of the land and a certain builder, and the transferee of the said mortgage, and they brought an action against the defendant, an architect and surveyor, to recover loss which they had sustained by reason of certain untrue certificates given by him as to the progress made in building the two houses, upon which payment was subsequently made. It had been agreed that the mortgage money should be advanced as the building operations progressed, but there were no contractual relations between the architect and the mortgagees. The action was referred to i\iQ Official Referee, who gave judgment for the defendant, holding, as a matter of law, that the defendant owed no duty to the AllUUlTECT 97 plaintiffs, Tlie Divisional Court refused to set this judgment aside, and the plaintiffs appealed. The Court {Lord Usher, MM., Bowcn and A. L. Smith, L.J J.) held, that the arcliitect owed no duty to the niortj,'agees to exerciso care in giving liis certificates, and tlioy could not maintain au action against him for negligence. Cann v. Wilhon (39 Ch. D. 39) overruled. LE LIEVliE & DENNES v. GOULD. (1893) 57 J. P. 484; 1 Q. B. 491; G2 L. J. Q. B. 353; 4 E. 274; 68 L. T. 62G; 41 W. E. 468. Negligence in Certifying, and Fraud. — An architect was em- ployed hy a building owner to prepare plans and specification for, and supervise the execution of, certain building works. His remuneration was fixed at 5 per cent, commission on the total outlay and out-of-pocket and travelling expenses. He prepared tlie l)ills of quantities himself, and procured a builder to tender thereon for the works. The contract signed provided that the builder was to be paid only on the certificate of the architect, whose final certificate was conclusive evidence that the builder was entitled to payment. The building owner sued the architect for negligence in giving his final certificate, and for receiving a secret commission, in that he received £10 10s. from the builder for preparing the bills of quantities. Mathcw, J., held, that an action would not lie against the architect for negligence, and judgment was entered for the defendant, but without costs. BESTELL v. NYE. (1900) 16 T. L. E. 154. Sec also at p. 99 infra. Negligence in Designing. — A building owner employed an architect to prepare the necessary plans, &c., and superintend the erection of certain proposed model lodging-houses. The architect was instructed to design a flat roof, and not to specify lead as a covering for the roof, owing to its being too costly, but to specify some other material. The architect accordingly specified a novel invention of concrete and iron in the roof, which had come to his knowledge, and of which he approved, at a cost of about one- fourth the cost that using lead or slates would have involved. The roof, however, proved a failure and cracked, letting tlie rain-water in. In an action by the owner against the architect for negligence, Erie, G. J., held, that though failure in an ordinary building was evidence of want of competent skill, failure is consistent with skill, if an architect is employed, on some novel method, out of M.B.C. H 98 ARCHITECT the ordiuary course, iu wliicli he had not had experience. The jury found for the defendant. TURNER V. GARLAND. (1853) H. B. C. 85. -Negligence in Estimating Cost. — A l)uilding owner engaged a firm of architects to prepare plans, &c., of certain l)uildings, and informed tliem that the cost of the work was not to exceed £100,000. The buildings were begun without specifications, detailed estimates upon quantities having been taken out, and the works cost £200,000 when completed. In an action by the architects against the owner for their fees, negligence was alleged l)y the defendant, but the Official Referee found for the architects. The owner appealed, and as the Court {Lord Colcridrje, C.J., and Wrirjht, J.) had been informed by the Official Referee that he had not found formally or expressly that there was no negligence, they sent the case back for liim to deal with the question of alleged negligence. ARGUER V. EOBBS. (1891) Times, November 5. Negligence in Measui-ing up. — In the first of these actions the plaintiff sued the defendant for work done by the former as architect for the defendant. The defendant did not dispute the claim, but counterclaimed for the alleged negligence of tlie plaintiff in measuring up the work done, &c. T1k3 plaintiff was employed for the usual services upon the usual terms. The contract pro- vided for the payments on account, «&;c., on the certificate of the architect, and that his certificate showing the final balance due to the contractor should be conclusive evidence that the works had been duly completed. The County Court judge gave judgment for the plaintiff on the claim and for the defendant on the counterclaim, the damages to be assessed by arbitration. The Divisional Court allowed the plaintiff's appeal, on the ground that, being placed in the position of an arbitrator by a clause of the contract, he was not liable for ne^digence in respect of his functions under that clause of the contract. Against this judgment the defendant appealed. In the second action the defendant was an arcliitect and the plaintiffs the executors of the building owner. The building contract was substantially the same as in the first case, and Mathcw, J., held, tliat an action for negligence would not lie against a person placed in the position of the defendant under the contract. ARCIITTEet 00 The Court (A. L. Smith, M.R., and CoUinf', 'L.J.^.M<.>iKir,.L.J., dissenting) held, that the architect, iu ascertaiuing tlie amount duo to the contractor and certifying for the Siinic under the contract, occupied the position of an arbitrator, and therefore was not liable in an action by the building owner for negligence in the exercise of these functions. CHAMBERS v. GOLDTEORPE, and RESTELL v. NYE. (1901) 1 K. B. G24; 70 L. J. K. B. 482; 84 L. T. 444; 49 W. Pv. 401. Negligence : Inaccurate Plans. — The plaintiffs employed the defendant to prepare plans and specification for a factory and offices, and to engage a surveyor to take out the quantities. The defendant did not measure the proposed site, but prepared plans, &c., in accordance with what he erroneously believed to be the true dimensions of the site, and employed a surveyor to take out the quantities. The plaintiffs, believing the plans andiquantities to be correct, paid the architect £200, and the surveyor £200, for their services, but were unable to erect the buildings, owing to lack of means, and they disposed of the site. They subsequently discovered that the plans and quantities were not correct, and brought an action claiming the return of the money paid as having been paid upon a consideration which had wholly failed, or, in the alternative, damages for negligence. Wnght, e/., in a considered judgment, held, that there had not been a total failure of consideration, but as the defendant had been negligent, the plaintiffs were entitled to damages, althougli, as they had sustained no loss from his negligence, those damages would only be nominal. THE COLUMBUS CO., LTD. v. CLOWES. (1903) 1 K. B. 244; 72 L. J. K. B. 330; 51 W. E. 3C6. Slight Error is not Negligence. — An architect sued the de- fendants for balance of his commission, and they alleged in their defence negligence in taking out the quantities and in measuring up the work done. Cave, J., referred the case to one of the Official Referees (now Ridley, J.), who found, that the difference in nK\asure- ments between the plaintiff* and the defendant was but three- quarters per cent., and that, in a contract of £10,000, could not be considered negligence on the part of the architect. Judgment for the plaintiff. CORBETT V. RICHMOND. (1888) Building News, May IS. 100 ARefllTECT _'_.j_Ke'gHg2nc8in Superintendence, — An architect was employed to design and superintend the execution of certain drainage works in connection with the plaintiff's liousc, and liaving prepared the necessary plan, &c., placed it in the hands of a contractor. The work, however, was not properly executed, and in consequence thereof some members of the plaintiff's family fell ill. The plaintiff sued the architect for negligence in superintending the work, claiming the cost of having the work properly done, and medical expenses. The jury found for the plaintiff, damages to be assessed by a reference. ELLISSEN V. LAURIE. (1878) Times, February 19. -Negligence in Superintendence. — The owner of certain premises employed an architect to carry out certain alterations thereto. Plans and specification were duly jjrepared, and a builder employed, who performed the work to the satisfaction of the architect. In an action by the architect for his fees against the owner, the latter counterclaimed for negligence, by reason of the architect not having certain beams renewed, which had been previously damaged by fire. A clerk of works had been appointed by the defendant, wlio stated tliat new beams were not required. The jury found for tlie plaintiff, and Cave, J., entered judgment accordingly. LEE V. BATEMAN. (1893) Times, October 31. Negligence in Superintendence. — An architect was employed to superintend the erection of a certain house. A clause in the builder's contract provided that his decision in all disputes arising out of the contract was binding. In an action by the architect against his employer for the balance of his fees, the employer counterclaimed for negligence, by reason of which certain works were omitted by the builder. The architect contended that, in his final certificate, he had deducted a certain sum in respect of such omissions, and that his decision being final, the employer could not reopen the question. The jury found for the plaintiff on the claim, and for the defendant on the counterclaim. The plaintiff moved for judgment, or a new trial, on the counterclaim, and the Court {Lord Lindley, Lopes and Kay, L.J J.) held, that the architect's certificate is final as between builder and building owner, but not as between the latter and the architect. ROGERS V. JAMES. (1891) H. B. C. 113; 8 T. L. I^. G7. AKCniTECT 101 Oral Certificate of the Completion of the Works. — A clause of a Iniildor's couLract proviilcd IhaL the C()iu[)li;Li(jii oi. the works was to be testified by the written certificate of tlie surveyor. The ))alaiicc was to be paid to the contractor, on tlie surveyor certifying that the whole of the works were in a complete and satisfactrjry state. In an action by the contractor for the balnnce of money due under the contract, it was contended by the defendants that no proper certificate had been given by the surveyor to satisfy the contract. The plaintiff relied on the following certificate by the architect : " /, the imder signed, do certify that T. E. is entitled to receive the sum o/£127 in payment of final instalment of contract after maintenance of the above-named icorh, signed, J. B. B., archi- tect," and also on tlie oral certificate of completion given by the architect to the defendants. Vctughan- Williams, J., held, that a certificate of completion of a building contract may be given orally, in the absence of specific provision to the contrary in the contract, and gave judgment for the plaintiff. ELMES V. BUEGH MARKET CO. (1891) H. B. C. 119. Ownership of Plans prepared by. — A clergyman employed an architect to prepare plans, &c., for a churcli and vicarage, at 5 per cent, commission on the outlay, or 3 per cent, if tenders w^ere obtained and the work not proceeded with ; if only the plans were drawn, the commission was to be 2h per cent, on the estimated cost of the work. The work was not proceeded with, and when the architect sought payment he was requested by his employer to give up the plans. In an action to recover his fees, the Loi'd Chief Baron entered judgment for the plaintiff. On motion to reduce the amount of the verdict, the Court {Kelly, C.B., and BramweU and Tiggot, BB.) held, that the defendant was justified in refusing to pay until the plans were handed to him, and the rule was made absolute, the verdict being reduced in respect of the plans of the house. EBDY V. MvGOWAN. (1870) Times, November 17 ; H. B. C. 7. Ownership of Plans. — The plaintiff desired to convert certain houses, of which he was the owner, into flats, and employed the defendant as liis architect, on the terms that he was to l)e paid 5 per cent, commission on the contract price of the works to be executed. The plaintiff prepared the plans and specification, and superintended the execution of the works, on completion of which the plaintiff paid him the agreed conmiission, and claimed to have 102 AECHITECT the plans aud specification handed over to liiiii. The defendant declined to do so, and the plaintiff brought an action to obtain possession of them. At the trial, Ridlcij, J., refused to admit evidence, tendered on behalf of the defendant, of a custom under which an architect in similar circumstances was entitled to retain the plans and specification as his property, on the grounds that the custom proposed to be established by that evidence was unreasonable, and entered judgment for the plaintiff. The defendant appealed, and the Court {Collins, M.R., MatJmv and Cozens- Hardy, L.JJ.) held, that a custom set up by the defendant entitling him as architect to the property in the plans after the completion of the work, was unreasonable, and afforded no answer to the action. GIBBON v. PEASE. (1905) G9 J. P. 209 ; 1 K. B. 810 ; 74 L. J. K. B. 502 ; 92 L. T. 433 ; 21 T. L. B. 365 ; 3 L. G. B. 461 ; W. N. 55. Power to carry out Contract in Builder's Default. — One of the terms of a builder's contract empowered the architect to purchase materials and employ workmen to carry out the contract, if the building works did not progress as the architect might consider necessary ; the cost of such materials and workmen to be deducted from any money found to be due to the builder. When portion of the work was done and paid for, the architect refused to certify for any further payments on tlie grounds of delay and non- supply of proper materials. The Ijuilder therefore could not pay his workmen, and they became clamorous, and accompanied him to the architect's office, where, after remonstrating, he signed an agreement giving up the contract in consideration of a present payment of £50, and referring the question as to what was due to him to an arbitrator. The arbitrator awarded the Iniildcr a less sum than the builder thought just, and he filed a bill to set the agreement aside as having been obtained by undue pressure. Lord Campbell, L.C., held, that the builder had confirmed the agreement by acting upon it, and was therefore not entitled to relief. 0Ii3fBS v. BEADEL. (1861) 30 L. J. Ch. 1 ; 3 L. T. 344; 9 W. B. 25. Acting as Quantity Surveyor. — A hotel proprietor, about to make alterations, employed an architect, who accepted the defendant's tender for the work. The specification provided that additions and deviations were to be valued according to the schedule of prices and measurements upon which the contract was based. In an action by the architect to recover back from the contractor the amount of fees charged by him as surveyor, and ARCniTECT 103 paid to the contractor, on the f^rouml tliat the arcliitcct liad liceu employed Ijy the contractor, after the completion, to check the measurcnieuts and jobbing accounts, the Lord Ordinary found for tlie defendant, it not having been proved that he employed the architect. On appeal, the Court {Lord rrcsidcnt, Lords Mure and Skaiid) held, that it is in the interest of the emjiloyer and not of the contractor that tlie aid of a surveyor is called in to take the measurements of extra works, and though, according to practice, the surveyor's fees are included in the contractor's accounts, it is only for the sake of convenience, and, without special employment, no action by the surveyor will lie against the contractor. BEATTIE V. GILROY. (1882) 10 Ct. of Sess. Cas. (4th Ser.) 226. Employing Quantity Surveyors. — A theatrical manager proposed to build a theatre, and employed an architect to prepare the necessary plans, specification, and estimate. He oljjccted to the cost of the proposed buildings, and in order to ascertain the amount by which the cost of work could be reduced, the architect engaged a firm of quantity surveyors to take out the reduced quantities from his plans as amended. The quantity surveyors had l;)een paid their charges for taking out the quantities from the original plans, but the theatrical manager ultimately decided not to build. In an action by the quantity surveyors to recover their charges for " preparing quantities on reductions and 1 per cent. on omissions," from the employer, the latter alleged that the plaintiffs were not engaged by him, and the architect in doing so had acted contrary to his express instructions. The plaintiffs obtained a verdict, and on hearing a rule to set it aside on the ground that it was against the weight of evidence, the Court {Lord Coleridge, C.J., Manisty and Boiocn, L.JJ.) held, that the plaintiffs could only recover against the employer upon evidence of actual instructions, and not by virtue of any custom. The Court, however, did not feel justified in disturbing the findings of the jury, who had heard the witnesses in the case. EVANS V. CAETE. (1881) H. B. C. 10. Sued by Quantity Surveyor. — An architect prepared plans of a proposed building, and requested a surveyor to take out the quantities thereof. The architect had received no instructions to obtain tenders. When the quantities were prepared the architect handed them to a builder for tender. The surveyor did not know the name of the architect's client, and in the case of quantities i04 AliCUtTKCl' previously prepared by him at the request of the architect, lie had been paid through the latter. In an action by the surveyor against the architect for the amount of his fees, the architect pleaded that his client wa-s liable. The jury, however, found tliat the defendant had employed the plaiutiir personally, and was accordingly liable for his fees. GORDON V BLACKBUllNE. (1870) The Builder, February 1. Acting as Quantity Surveyor. — An architect took out the quantities of a certain building, the erection of which was not proceeded with owing to the refusal of the Poor Law Board to sanction it, and sued the Guardians for his fees. The jury found that there was a custom that in such circumstances the employer was liable to the architect, and that it was known to the parties, and that they contracted on that footing; and Keating, J., entered judgment for the plaintiff. LANSDOWNE v. SOMEBVILLE. (1862) 3 F. & F. 236. Refusing to Certify. — A builder entered into a written contract with the defendant to build certain premises, whereby the defendant's architect was to be the sole judge in case of dispute, and his decision was to be " binding and conclusive on both parties." In an action by the builder for a large sum due, but which the architect would not certify for, the Court held, that in building contracts it would interfere where there is collusion between the employer and architect to injure the contractor, but that the alleged collusion was not proved, and dismissed the bill. BLISS v. SMITH. (1865) 34 Beav. 508. Satisfaction a Condition Precedent. — A building contract pro- vided that the wtjrk was to be executed " to the satisfaction of the architect" additions, &c., were not to be carried out without his order, and he was to ascertain the value of any executed, and the amount was to be paid on completion of the work. The architect declined to certify that the work was completed to his satisfaction. On demurrer, the Court {Jcrvis, C.J., Maide, Cresswell, and Talfourd, JJ.) held, that the satisfaction of the architect was a condition precedent to entitle the plaintiff to payment. GLENN V. LEITII. (1853) 1 C. L. E. 569. ARCHITECT 105 -■ -Superintending. — The purcliascr of a large plot of laud, Ijuilt, upon a portion thereof, a row of houses fronting a certain street. The end house of the row was a corner-house, standing upon what was formerly the garden of a puhlic-house, and giving on to a new street, and projecting heyond the ccrtiiicd l)uilding line of the said new street. A magistrate's order was obtained for the demolition within eiglit weeks of so mucli of the liouse as pro- jected l:)eyond the certified building line. This order was not reduced to writing, or served on the purchaser until the last day of the period of eight weeks referred to, but he was present in Court and heard the order being made. The purchaser refused to comply therewith, and sought an injunction to restrain the Vestry from interfering with the corner-house. Bacon, V.C., granted the injunction. The Vestry appealed, and the Court {Cotton, Lindlcy, and Baggallay, L.JJ.) held, that the projecting part of the house was a new building, and came within § 75 of the Metropolis Management Amendment Act, 1862, and not within § 74, which applies to new buildings ; and that, although the building was a corner-house of a row of houses in an adjoining street, it was also in the new street, and the owner was bound to keep it within the general line of buildings in the new street ; and they reversed the decision of Bacon, V.C. They also held that the order was binding, the Act being silent as to service of the order upon the owner, although it requires it to be in writing (27 Ch. D. 362). The owner appealed and the House of Lords {Lords Herschcll, L.C., Watson, Brannucll, Fitzgerald, and Halshurg) held, reversing the decision of the Court of Appeal, that no offence under § 75 of the Act had been committed by the erection of the appellant's house, and, therefore, there was no jurisdiction for a magistrate's order under that section, directing its demolition ; and that the order was not " an order in writing made on " the builder, within the meaning of § 75, and was, therefore, invalid. BARLOW V. VESTRY OF ST. MARY ABBOTS, KENSINGTON. (1886) 50 J. P. 691 ; 11 App. Cas. 257 ; 55 L. J. Ch. 680; 55L. T. 221; 34 W. E. 521. Verbal Employment by Local Authority. — An urban authority verbally directed their surveyor to employ an architect to prepare certain plans, &c., which were duly prepared, and upon which the local authority advertised for tenders for the execution thereof. The proposed building was not erected. There was no ratification under seal of the act of the surveyor in procuring the plans. At 106 ARCHITECT tlio trial of an aclioii ln-ou^ht ]>y i\\v urcliiicct for his fees for 2)reparing the plans, S^c, the jury found, tliai the enijtloynient of the urciiitect Mas ratilied l)y the local authority, that oflices wove necessary, and that the plans were necessary to huild tlieni, and found for the plaintiff £l)4. LindUy, J., entered judgment for the defendants, because the contract, being for more than £50, was not under seal. The plaintiff appealed, and the Court {Bram- wdl, Brett, and Cotton, Z.JJ.) held, that assuming the contract was founded on an executed consideration, the plaintiff could not recover, for § 174 of the Public Hadth Act, 1875, was imperative, and not directory, and applied to every contract for a sum exceed- ing £50 entered into by an urban authority. HUNT V. WIMBLEDON LOCAL BOARD. (1878) 43 J. P. 284 ; L. 11. 4 C. P. D. 48 ; 48 L. J. C. P. 207; 40 L. T. 115; 27 W. E. 123. Wrongful Interference by. — A l)uilder's contract provided that the work should be done to the reasonable satisfaction of the consulting engineer, according to certain plans, and should be certified by him or on his behalf. The work was to be finished by a certain date, or in default the contractors were to pay £250 a month for every month's delay. Payment was to be made by cash and shares, the former Ijcing subject to retentions to secure the completion of tlie contract, and a resident engineer ^^■as to Ijc employed on the works, completion of which was to be certified by the chief engineer. Owing to certain delay caused by the resident engineer, the contractors were prejudiced by depreciation of securities in which the retentions were invested, and otherwise, and on a reference, the arbitrator gave judgment in favour of the contractors. On appeal, the Court {Mathcw, J., and another), in a considered judgment, sent the award ))ack to the arbitrator to be altered in favour of tlie company in respect of the sums awarded, owing to tlie delay caused by the wrongful interference by the engineer, as neither ^larty could lie held responsil)le for the mistakes of the engineer, and in respect of depreciation. LB MORGAN v. BIO DE JANEIRO MILLS. (1892) 8 L. T. P. 108 ; H. B. C. 132. ASSIGNEE Of Contract. — A l)uilder contracted with the defendants to build a liousc by a certain date, and it was provided that 75 per cent, should be paid to the builder when the surveyor certified that work to the value of £200 was executed. The balance was ASSIGNEE 107 to I)C paid three inontlis after completion. The hiiihler assigned £200 of the sum coming to him to the plaintiff, after the date fixed for completion was passed. The plaintiff executed a creditor's deed suhseciucntly, under which the trustee completed the con- tract out of his own money, and was repaid hy the owner, so that no halance remained due on the contract. The plaintiff filed his bill to enforce payment of £200, and the Court {Schvyn and Giffard, L.J J.) ajjirmcd the decision of Matins, V.C., and held, that the payments by the owner to the trustee were proper, and dismissed the bill. TOOTH V. HALLETT. (1869) L. E. 4 Ch. 242 ; 38 L. J. Ch. 396 ; 20 L. T. 155 ; 17 W. E. 423. ASSIGNMENT Of Balance of Contract. — A firm of contractors agreed to build certain houses for the defendant, to lie completed by a certain date. The houses were completed, and the defendant entered into possession. At that time there was due from the defendant to the contractors a certain sum, which they assigned to the plaintiff. The defendant, in an action to recover that sum, pleaded that he was entitled to damages for breaches of contract by the assignors to complete by a certain date, whereby the defendant had lost the use of the premises. On demurrer, the Court {Cleashy, B., and others) held, in a considered judgment, that the defendant was not entitled to recover any damages against the plaintiff, but was entitled, by way of set-off or deduction from the plaintiff's claim, to the damages which he had sustained by the non-performance of the contract by the assignor, and that the form of defence must be amended accordingly. YOUNG V. KITCHIN. (1878) L. E. 3 Ex. D. 127 ; 47 L. J. Ex. 579:; 26 W. E. 403 Of Instalments to secure Advances. — By a building agreement the defendant agreed to grant leases to certain builders, when the houses they were to build upon the land to be demised were completed. The defendant agreed also to make certain advances, by instalments of £50, to the builders. The builders bought materials from the plaintiff, and gave him an order on the de- fendant for payment of the amount of one instalment, the cost thereof. In an action to recover that amount, the County Court judge non-suited the plaintiff. On appeal, the Court {Matheio and 108 ASSIGmiENT Charles, JJ.) held, tliat the agreement was not merely an agree- ment to make a loan, but stands on the same footing as an agree- ment to pay for services rendered, and money become due under sucli an agreement can be assigned in equity, MA Y V. LANE. (1894) 64 L. J. Q. B. 236; 43 W. E. 58; 71 L. T. 869; 14 W. 149. "BACK YARD OR OTHER VACANT SPACE" A builder deposited i)lans of a proposed building, for the approval of a local authority, which did not show thereon an open space of 8 feet behind the building as required by the by-laws, and which, in consequence, were not approved. Notwithstanding sucli disapproval the building operations were commenced, and the liuildcr was summoned for an offence against the Act incorporating the local authority. He contended that the local Act must be read with § 53 of the Pnhlic Health Act, 1848, which section had been expressly repealed by § 34 of the Local Government Act, 1858, under which the local board were empowered to make by-laws. Such ])y-laws had been made, and a copy was handed to the builder for his guidance in the building operations, and provided that within a certain period, which then had elapsed, the local authority should either "aj^joi'ove" or "alter" plans, &c., sub- mitted. The stipendiary convicted the defendant. On a case stated, the Court {Martin and Channcll, BB.) affi,rmcd the con- viction, and held, that the local Act was not repealed in respect of tlie additional particulars it directed to l)e furnished for the approval of tlie local authority. PEARSON \. laNGSTON-UPON-HULL BOARD OF HEALTH. (1865) 29 J. r. 711 ; 3 H. & C. 921 ; 35 L. J. M. C. 36 ; 13 L. T. 180. BANKRUPTCY Action by Mortgagee. — A contract to construct a tidal harbour was contained in plans and specifications, and provided for pay- ment for work done according to a schedule of prices, and not a lump sum. The works included the formation of a temporary dam to keep out the sea while the excavations were being made. The contractor had constructed this dam and lirought certain other plant and materials on to the ground, which he mortgaged to the plaintiff by liill of sale duly registered. Subsequently the contractor was adjudicated a bankrupt, and a trustee was appointed. The trustees for the debenture-holders of BANKRUPTCY 109 the company gave notice to the bankrupt's trustee that they had taken possession under their trust-deed of the property of the company, and that the machinery, plant, and materials on the ground belonged to them. A debenture-holder's action was brought, a receiver appointed, and judgment was obtained, under which the property in question was sold. The plaintiff brought this action against the company, and the trustees of the debenture- holders (the purchaser at the sale being added as a defendant subsequently) claiming the materials in the dam and on the ground, and certain plant, under his bill of sale. Farwell, J., held, that the usual clause in contracts for the construction of works or for building leases, providing that all materials brouglit on to the ground are to become the property of the building owner, must be construed as vesting the materials in the building owner, subject to a condition of defeasance if the builder completes the work. It is a security to the building owner for the completion of the work, failing which the builder cannot recover the materials, although the building owner does not complete the w^ork himself or by another contractor. Action dismissed with costs. Ex parte Collins (1902), 1 K. B. 555, distinguished. HART V. PORTHGAIN HARBOUR CO., LTD. (1903) 1 Ch. 690; 72 L. J. Ch. 426; 88 L. T. 341; 51 W. E. 461. Architect's. — An architect prepared certain plans, &c., and executed surveys for the defendants in 1877, for which he claimed £498. In 1873 the architect had been adjudicated a bankrupt. In an action by the architect to recover this amount of his fees, which was begun while the architect was an undischarged bank- rupt, Baggallay^ L.J., held, that as the trustee had not intervened, the plaintiff was entitled to maintain the action, and it was referred . The referee found £122 for the plaintiff, and the company appealed. The Court {Branmcell, Brett, and Cotton, L.JJ.) held, that an undis- charged bankrupt may maintain an action in respect of a debt due to him for work and labour done after his bankruptcy, if tlie trustee does not interfere. JAMESON & CO. V. BRICK & STONE CO. (1878) 4 Q. B. D. 208; 48 L. J. Q. B. 249 ; 39 L. T. 594; 27 W. E. 221. Assignees of Contract. — A builder entered into a contract with a quarry owner for the supply of stone for the purposes of a Government contract. The quarry owner failed to deliver the 110 BANKRUPTCY stouc, whereby tlie Imilder s Government contract was determined, and tlie builder lost profits estimated at £5000, and also sustained other damage. Subsequently the builder became a bankrupt. In an action by the assignees in bankruptcy, to recover damages for breach of contract against the quarry owner, the Court {Lord Tenterden, C.J., Littlcdale, Park, and Taunton, JJ.) held, that assignees under 6 Geo. IV. c. 16, may maintain an action for un- liquidated damages which have accrued before the bankruptcy by the non-performance of a contract. WrJGJIT V. FAIRFIELD. (1831) 2 B. & Ad. 727. Assignee of Contract to Complete. — A firm of builders agreed to build certain school premises for a certain sum. Some time after beginning the works they became insolvent, and assigned all their property to the plaintiff for the benefit of their creditors. Under the terms of the contract, the school autliorities gave the builders notice that they proposed to enforce a clause of the con- tract which gave their architect power, on the contractors' default, to finish the work by the employment of other tradesmen, and to deduct the cost of so doing from any money found to be due to the builders. The plaintiff then claimed to be at liberty to proceed to complete the contract, and an injunction to restrain the threatened employment of other tradesmen. Stuart, V.C., held, that the trustees of a deed of composition, executed by a debtor under § 192 of the Banlcruptcy Act, 1861, w^ere not entitled to claim to complete a contract entered into by the delator prior to the date of such deed, where the debtor only contracted that he, his executors and administrators (omitting " assigns "), would execute the work the sul)ject of the contract. KNIGHT V. BURGESS. (1864) 33 L. J. Ch. 727; 10 Jur. 106 ; 10 L. T. 90. " Builder." — Tlie purchaser of the carcases of certain houses. bouglit U)v the purpose of being completed and sold, ordered from certain tradesmen materials f(jr the work of completion, and repre- sented himself to them as a builder. Tlie purchaser became insolvent, and on liearing a petition by him to annul tlie fiat on the ground tliat he was not a trader, and tliat there was not a good ])etitioiiing creditor's debt, the Court {ErsJdne, C.J., Cross and Rose, JJ.) held, that a person in the position of the purchaser may be made a bankrupt as a builder within 6 Geo. IV. c. 16, § 2. NEIRINCKS, EX PARTE; IN RE NEIRINCKS. (1835) 1 Deac. 78 ; 2 M. & A. 384 ; 4 L. J. Bk. 73. BANKRUPTCY 111 Completion by Assignee. — Under a building contract the con- tractor agreed to execute certain work for a public company by a specified date, and in the contractor's default the company were empowered to deduct, from the percentage retentions, a sum of £500, and £5 for every week the completion of the works was delayed. It was further provided that, in the event of the con- tractor's insolvency, the company might determine the contract. The time for completion was twice extended, but subsequently, owing to the contractor's failure to complete, the company took possession of the work. The contractor thereupon assigned all his interest in the contract, and the company agi'eed that the works might be carried on and completed by the assignee. The works were duly completed by the assignee, and the company sought to deduct certain sums, as liquidated damages in respect of delay, from the retention money. On hearing a special case stated by the arbitrator, who had decided in favour of the company, the Court {Lawrance and Kennedy, J J) held, in a considered judgment, that the words, " hut witJwut thereby affceting in any other respect the liability of the contractor" contained in the proviso as to terminat- ing the contract, kept alive the company's right to deduct the liquidated damages from the retention money, and that the assignee was subject to the liabilities of the original contractor. Affirmed by the Court of Appeal. YEADON WATERWORKS CO., IN RE. (1895) 72 L. T. 538 ; 99 L. T. J. 236. Cost of Specified Fittings. — A builder contracted to execute certain joinery work, and to receive payment on the certificate of the architect superintending the erection of the building. Speci- fied fittings were to be supplied for £95, and to be procured from a firm of tradesmen. The architect subsequently increased that amount to £137. The builder became bankrupt, and on the application of the firm of tradesmen the building owner paid them £95. The trustee in bankruptcy applied to the owner for £137, and refused to accept the difference between the two sums, and the architect refused to certify for more than the difference. The County Court judge dismissed a motion by the trustee for an order directing the architect to certify for £137, on the ground that he had no jurisdiction. On appeal, the Court {Lord Cole- ridge, C.J., and Cave, J.) held, that the judge had jurisdiction under § 102 (1) of the Bankruptcy Act, 1883, and ought to have exercised it. EX PARTE GRAY, IN RE HOLT. (1889) 58 L. J. Q. B. 5. 112 BANKKUPTCY Creditors paid out of Balance due on Contract. — Ou September 9, lOUu, a liuiUler contracted with a local authority to execute certain works. The contract price was payable monthly subject to 10 per cent, retentions, on the certificate of the engineer to the local authority. The amount of the retentions was to be paid on the expiration of six months from date of completion, during which period the builder was to maintain the works. On October 3, 1903, he filed a petition, and a receiving order was made against liim, and on October 12, 1903, he was adjudicated a bankrupt. The works were substantially complete, on October 3, and out of the balance due on the contract, the engineer, under a power con- tained in the contract, ordered sums amounting to £224 to be paid direct to certain tradesmen who had supplied machinery for the work, according to the terms of the specification, and he subsequently certified further sums as due to them. The trustee claimed that sum and the amount of the retentions as part of the estate of the liankrupt. The machinery owners claimed priority. Birjham, J., held, that by filing a petition the builder's conduct liad amounted to " unduly delaying proper payment " th tlie macliinery firms, and that tlie engineer was justified in ordering payment direct to them, and they were entitled to priority ; and he ordered the balance of the retention money to be paid into the bank to meet their claims. WILKINSON, IN BE; FOWLER, EX PARTE. (1905) 2 K. B. 713 ; 74 L. J. K. B. 969 ; 54 W. B. 157 ; W. N. 143. Detention of Tools. — A builder contracted to execute certain work according to a specification, and having proceeded with the work for some time, became bankrupt. In an action by his trustee against his employers, for the value of the materials and plant brought on to the premises by the builder for the purpose of executing his contract, and seized by them, the Sheriff-suhstitute found partly for the trustee and partly for the employers. Both parties appealed, and the Court {Lord Justice-Clerk, and Lords Cowan and Benholme) held, that the employers were entitled to retain the materials to complete the w^ork sul)ject to a claim for their value, and to retain tools for use until completion of the work, subject to a claim for their restoration and for use of them ; and that the employers were entitled to set-off their claim for damages, against the claim for work done under the contract, for value of the materials, and for use of the tools; but that the builder was entitled to compensation for the detention of the tools after completion of the work. KERR V. DUNDEE GAS CO. (1861) 23 Ct. of Sess. Cas. (2nd Ser.) E. 343. BANKRUPTCY 113 Forfeitui-e Void.— A Ijuilder agreed, in September, 1878, to erect a number of houses upon certain 1:)uilding land, the land- owner of which agreed that, as the said houses should be erected and covered in, he would demise to the builder certain plots of land for ninety-nine years at a yearly rent of £300. Until the leases should be granted tlie builder was to hold the premises subject to the payment of the rent and to the performance of his part of the agreement, and subject to the power of distress and re-entry by the landowner in default of such payment and per- formance, or on the builder becoming insolvent or bankrupt, in either of which cases the building materials on the ground, &c., should become forfeited to the landowner. Tlie deed was not registered as a bill of sale. On January 28, 1879, the builder became insolvent, and at that time the value of materials, &c., on tlie land was £700 ; and there was due to th.e landowner on foot of cash advances to the builder a sum of £450. The receiver took possession of, and the landowner claimed, the materials, &c. It was arranged that the ownership thereof should be decided by the Bankruptcy Court, and the County Court Judge sitting in bank- ruptcy decided in favour of the receiver. The landowner appealed, and Bacon, C.J., reversed the judgment of the County Court Judge, and decided in favour of the landowner. The receiver appealed, and the Court {James, Brett, and Cotton, L.JJ.) held, that the pro- vision for forfeiture of the materials was void, as contrary to the policy of the bankruptcy law, and that the materials were the property of the receiver. EX PARTE JAY; IN BE HARBISON. (1880) 44 J. P. 409 ; 14 Ch. D. 19 ; 42 L. T. 600 ; 28 W. E. 449. Plant and Materials. — A firm of builders contracted to erect on certain land, the property of the building owners, a number of houses for a lump sum. The contract provided inter cdia that in the event of the builders neglecting or refusing to proceed with the works, or becoming bankrupt, or otlierwise rendered incapaljle of completing the contract, the architect of the building owners might, on notice to the builders, appoint others to finish the works, and was empowered to seize all the materials, plant, and im- plements on the ground, and also all materials made or partially made up and ready for fixing, and which were intended to be fixed, upon the houses and premises, although the same were on tlie premises of the builders or manufacturers, provided that any money on account of the contract shall have been paid to the builders. Subsequently the builders, having meantime received M.B.C. I 1 1 4 BANKRUPTCY larf^e payments, iiled llieir petiLinn in liuiiknqiLcy, uud two clays later the owners' architect gave the rc(|uired notice to the builders tliat he would appoint others to finish tlie works, and that the Iniildcrs must not remove any material, plant, «&c. ; accordingly ho took possession of all the materials, &c. The building owners ol)taiued an interim injunction restraining the trustee in bank- rui)tcy from seizing the materials, &c., and on the hearing of the motion. Bacon, C.J., held, that tho l)uilding owners were entitled, as against the trustee in tlie liquidation, to retain wliat they had seized, the seizure being a protected transaction within § 9-i of the Bankruptcy Act, 1869. IN BE WAUGH; EX PABTE DICKIN. (1876) 4 Ch. D. 524 ; 46 L. J. Bk. 26 ; 35 L. T. 760 ; 25 W. R. 258. Plant, &c., assigned. — A builder entered into a building agreement, a condition of which was that all tlie materials, plant, &c., he Ijrought upon tlic laud were to be deemed to be annexed to the freehold. In order to secure advances to carry on the works, he assigned his interest in the building agreement. The deed of assignment provided that in the event of the Q^^Xgnov^hecoming hank- rupt" the assignee might take possession of the land, and complete the building contract. On a receiving order being made against the builder, the assignee took possession, with the consent of the freeholder, and completed the houses, using all the materials, t&c, then on the premises, valued at £900. The trustee in bankruptcy claimed a declaration that the assignee was not entitled to the plant and materials on the premises at the date of the receiving order. Wright, J., held, that " becomes bankrupt " means " be adjudicated a ])ankrupt,"and that, therefore, the builder, not being in default luidor the mortgage when the receiving order was made, the assignee was not tlien entitled to take possession ; that the materials were in the reputed ownership of the builder with the consent of the true owner, the freeholder, and passed to the trustee in bankruptcy. IN BE WEIBKING ; EX PABTE WABD. (1902) 1 K. B. 713 ; 71 L. J. K. B. 389; 86 L. T. 455; 50 W. E. 460 ; 9 Mans. 131. Plant, &c., brought on the Ground after. — A builder con- tracted with the defendants to l)uild an entrance to the docks and other works for £52,200. The defendants' engineer was to be sole judge of the w(jrk and materials, and was empowered, if the builder failed to perform the contract, to employ others to do BANKRUPTCY 115 so, and to deduct the cost thereof from monies payable to the builder. In the course of the works the builder was paid a larger sum than the work done, plant and materials on the ground were value for ; tlie advances were secured on the said work, plant and materials. The builder became bankrupt before the works were complete, and the company seized all the plant and materials to repay their advances. The assignees of the builder sued the company in trover, and the action was referred. On a rule to amend the award, the Court {FarlcCyBolland, and Alder son, B I j.) held, that the arbitrator had no power to award that the company could prove against the builder's estate ; that the plaintiffs could not recover for the extra work done by the builder, as it was subject to the contract, which was already overpaid ; that the company were entitled to the plant and materials, but the plaintiffs were entitled to materials brought on to the premises after the bank- ruptcy ; that the company's payments to the builder, subsequent to the time when the latter materials came on the premises, were not payments for those goods in course of business, but merely general advances, and the defendants were not protected by § 82 of 6 Geo. IV. c. 16. GEO WFOOT V. LONDON DOCK CO. (1835) 4 L. J. Ex. 267 ; 2 C. & M. 637 ; 4 Tyrw. 967. Plant, &c., claimed by Trustee. — A firm of builders contracted with a School Board to build a school. The contract provided that all plant, work, and materials brought on to the ground by the contractor for the purposes of the contract, should be considered the property of the Board, and that if the contractor suspended or delayed the execution of the contract, the Board, on notice, should be at liberty to take possession of the works, and all plant and materials upon the ground should be forfeited to the Board, and no further sums of money on account of the contract should be paid by the Board. The contract contained no provision for the revesting of the plant, &c., in the builders upon completing the works. The firm of builders were adjudicated bankrupts, and the Board gave the required notice, to proceed with the works, to the debtors and to the Official Ptcceiver. Subsequently a trustee of the debtors' estate was appointed, and he was given a further extension of time by the Board to complete the works ; but the trustee decided not to take over the contract, and therefore the works were not proceeded with, and the Board sold the plant, &c., to a firm who agreed to take over the building contract. The trustee claimed the plant, &c., and the County Court judge decided in his favour. This decision was appealed. i 1 G iiANKllUFrcY The Court {Wriylit and Bigkain, J J.) held, that the contract did not vest the ownership of the goods in the Board, and that conseciueutly they Avere not in the order and disposition of the debtors l»y the consent of the "true owner" within the meaning of § 44 of the Bankruptcy Act, 1883, and did not pass to the trustee as being in the reputed ownership of the deljtors. The Board's right to issue the notice in question was unaffected by the bank- ruptcy ; although the goods w^ere the property of the debtors at the commencement of the bankruptcy, the title of the trustee was determined by the forfeiture, and the Board were entitled to retain them. llart V. Poi'tJigain Earlour Co., Ltd. (1903), 1 Ch. G90, distinguished. IN HE KEEN & KEEN; EX PARTE COLLINS. (1902) 1 K. B. 555 ; 71 L. J. K. B. 487 ; 50 W. E. 334 ; 9 Mans. 145. Plant and Materials on the Ground. — A builder contracted to build a h. 490 ; 57 L. T. 5 ; 35 W. E. 570 ; 4 T. L. R. 717. -Of Contractor : Seizure of Plant, &c., by Owner.— A building contract contained a }>rovisi(m that if the contractor neglected or refused to carry out the works to the satisfaction of the owner's architect, or became bankrupt, the architect should have power, on two days' notice, to appoint another builder to complete the work, and to seize and retain all materials, plant, &c., on the premises, provided the contractor should have drawn any payment on account of the contract. The contractor commenced, and carried on the contract for some time, and drew money on account thereof. Subsequently he became bankrupt, and the architect gave the stipulated notice, and toDk possession of the materials and plant on the ground. Tlie judge of the County Court held, that the owner was entitled, as against the trustee in the liquidation, to retain what they had seized, the seizure being a protected transaction within § 94 of the Banhrvptcy Act, 1809. On appeal, Bacon, C.J., affirmed this judgment. DICKIN, EX PARTE; IN BE WAUGIL (1876) 4 Ch. D. 524; 4G L. J. P.k. 26; 35 L. T. 769; 25 W. E. 258. ■ Sureties. — A builder contracted to erect a jail for a certain sum. Ey the contract he was to be paid 80 per cent, of the amount of the architect's certificates from time to time, until the retentions amounted to 10 ])er cent, of the contract price, or £1295, On completion three-fourths of the balance due was to be paid two months after the architect's certificate of completion, and the remainder in six months on tlie architect's certificate that tlie works were in good ro])air. The defendants became sureties for the builder, and,^ unknown to them, in January, 1866, the per- centage retentions had amounted to £1295. To secure advances the builder gave his bond, and assigned the percentage retentions and all future payments on account of the contract to his bankers, the defendants and also the employers having notice of this assignment. On the bankruptcy of the builder the defeiidants undertook tlie completion of the contract under a fresh contract with the employers, and completed the works, and certificates of completion, and tliat tlie buildings were in good repair, were duly given by the arcliitect. The balance certified by the architect as BANKEUPTCY 1 1 9 payable by tlio employers wns £1243 odd. Tbe plaintiffs and tbe defendants claimed this sum, and in an interpleader issue, the Court {Kelly, C.B., and Bramwell, B. ; Martin and Cleashj, BB., dissenting) held, that the defendants were entitled to payment of the balance. SMITE V. KIBIC (1871) 25 L. T. 426. TTser of Plant, &c. — A builder contracted in writing to carry out certain sewerage works, and the contract provided that all plant brought on the premises by the builder should be deemed to be the property of the employers, and should not be removed during progress of the works without written authority from their engineer. In case of the suspension 'of tthe work owing to the builder's default, the plant could be used by the employers in completing the work. On the contractor's bankruptcy the employers claimed to retain the plant, and the County Court judge decided in their favour. On appeal by the trustee in bankruptcy, Bacon, C.J., held, that the right of user gave the employers no property in the plant, and was not such a dealing, within the meaning of § 39 of the Banlrnptcy Act, 1869, as gave them a right to set off the value of the plant against the sum due to the bankrupt under the contract. IN RE WINTER; EX PARTE BOLL AND. (1878) 8 Ch. D. 225; 47 L. J. Bk. 52; 38 L. T. 362; 26 W. E. 512. BILLS OF aUANTITIES The corporation of London invited contractors to tender for the execution of certain works according to plans and speci- fication prepared by the corporation's engineer. The specification provided that the contractors were to take out their own quantities, and that the accuracy of the plans were not guaranteed by the corporation. The contractors were warned particularly that they must satisfy themselves as to the nature of the ground through which the foundations had to ha carried. Iron cassions were specified to be used in the construction of the works, but when the contractors, whose tender was accepted, proceeded to use the cassions as designed, it was found that they would not resist the pressure of the water, and the plan of the work had to be altered and the use of cassions abandoned. The contractors claimed for the loss occasioned to them in attempting to use cassions, and contended that the corporation had warranted. 120 BILLS OF SALE although not expressly, that the work could he done inexpeusively hy the use of cassions accordiug to the specilicatioii. The case was argued iu the Exchequer, and the Court {The Lord Chief Baron, rigott aiul AmjjhleU, BB.) held, tliat there was no implied warranty in the contract, and gave judgment for the defendants. On error, this judgment was affirmed in the Exchequer Chamber {Mellor, Lush, Brett, and Grove, JJ.). Error was then brought to the House of Lords (Lords Cairn, L.C., Chelmsford, llathcrlcij, and O'lLijan), who held, that no warranty could be implied. THORN V. MAYOR & COMMONALTY OF LONDON. (1870) L. W. 10 Ex. 112 ; 1 A. C. 120 ; 45 L. J. Ex. 487 ; 34 L. T. 545 ; 24 W. U. 932. BILLS OF SALE Assignment of Building Agreement. — A ])uilder assigned, as security for advances made to him, all his interest in a certain building agi-eement, made between himself and the owner of certain land, togetlier with all materials, &c., on, or to be brought on, the ground tor Ijuilding purposes. Sliould the assignor fail to proceed with due diligence in carrying out the works, or become bankrupt, the assignee was empowered to take possession of tlie premises, materials, and plant, and complete the contract. In an inter- pleader summons, Wright, J., held, in a considered judgment, that tlie assignment, as regards the plant and materials, was a bill of sale, and, as it had not been registered, it was void as against the execution creditor, as regards the plant and materials. CHURCH V. SAGE. (1892) 67 L. T. 800 ; 5 E. 140 ; 41 W. E. 175. Building Contract. — Under a Ijuildiug contract a landowner agreed with a builder to assist him financially in building the houses, and to grant to liim leases of tlie ground on completion thereof. All materials brought on the premises by the builder for the purpose of erecting tlie buildings were to be considered as attached to the land, and were not to be removed therefrom without the landowner's consent. A clause empowered the owner to enter and take possession of land, buildings, and materials thereon, should the builder fail to proceed with the completion of the buildings. In an action against a sheriff for a false return of nulla honci to a writ oi fi. fa. before Chcmnell, B., the jury found for the plaintiff. On appeal, the Court {Bovill, C.J., Keating and Montague Smith, JJ.) held, that the contract was not a Ijill of sale, and that the owner had such an equitable interest in the materials BILLS OP SALE 121 brought on to the ground, that they could not be taken in executi(jn by a judgment creditor of tlie builder. BEOWN V. BATEMAN. (1867) L. E. 2 C. P. 272; 36 L. J. C. P. 134; 15 L. T. 658 ; 15 W. E. 359. Materials mortgaged. — A l)uilder mortgaged, by several in- dentures, certain land, Inuldings in course of erection, and such building materials as might subsequently be brought upon the land for the completion of the said buildings, to secure advances amounting to upwards of £11,000 and interest. The defendants, who were solicitors, were sued by the plaintiff for wrongful conversion of certain building materials, and they counterclaimed that an account should be taken of the sums due upon the various mortgages assigned to the defendants, each of which contained the power enabling the defendants to consolidate them, and other relief. Th.ey justified the seizure under a certain deed, dated February 13, 1886, which the plaintiff pleaded was void, not being registered under the Bills of Sale Ad, 1882. The question was whether or not the plaintiff was bound by the consolidation clause in the deed of February 13, 1886. The jury found that, although the plaintiffs attention was drawn to the consolidation clauses, they were not sufficiently explained for him to under- stand, and Manisty, J., gave judgment for the plaintiff on the counterclaim to have an account taken on the basis of a consolida- tion of the mortgages, and for the defendants on the claim for conversion, but ordered that the value of the goods seized should be brought into the account. The plaintiff, and defendants, appealed, and the Court {Denman and Stej^hen, J J.) held, that the deed was an assurance of personal chattels, or a licence to take personal chattels as security for a debt within the meaning of § 4 of tlie Bills of Sale Act, 1878, and therefore was a bill of sale, and was void for want of registration, under § 8 of the Bills of Sale Act, 1882. CLIMPSON V. COLES. (1889) 23 Q. B. D. 465; 58 L. J. Ch. 346; 61 L. T. 116; 38 W. Pc. 110. Materials vested in Lessor. — Under the provisions of a building contract all materials brought on the land by the intended lessee were to become the property of the owner of the estate. The former entered, and began to build without a lease. Subsequently the sheriff levied upon certain materials on the land to satisfy a judgment against the intended lessee. The Court {IVillcs, Keating, and Montague Smith, JJ?) held, that the property in the materials 122 BILLS OF SALE had vested in the intended lessors, and they were not liable to be taken in execution Ity a creditor of the intended lessee, and that the agreement was not a bill of sale. BLAKE V. IZARD. (1867) 16 W. R 108. Power in Contract to seize Plant, &c., not a. — A builder entered into a l)uilding contract witli the owner of certain land to build a number of liouscs thereon. Time was to be considered of the essence of the contract, and the agi'eement provided that, in the Ijuilder's default, the owner might re-enter, whereupon all the building materials and plant on the laud should be forfeited, and become the property of the owner, " as and for liquidated and settled damages." The builder made default, and the owner gave him formal notice that lie liad taken possession. The builder's trustee claimed the materials, and the County Court judge gave judgment in his favour, on the ground that the agreement should liave been registered as a bill of sale under § 7 of the Bills of Sale Act, 1854. On a]ipeal, Bacon, C.J., affirmed the decision of the County Court judge. From this decision the executors of the builder appealed, and tlic Court {James, Brett, and Cotton, L.JJ.) held, that tlie stipulation in tlie agi'eement did not constitute a bill of sale within the meaning of § 7 of the Bills of Sale Act, 1854, inasmuch as, thougli it was a " licence to take possession of personal cliattels," the possession was not to be taken " as security for any debt," and reversed the decision of Bacon, C.J. EX PARTE NEWITT; IN RE GARRUD. (1881) 16 Cli. D. 522 ; 51 L. J. Ch. 381 ; 44 L. T. 5 ; 29 W. E. 344. BUILDER Solicitor not a. — A solicitor purchased land with unfinished houses thereon, and sul)sequently completed and sold them. On hearing a petition l.)y him and another for a siqyersedcas, the Court held, that ho was not a trader within 6 Geo. IV. c. 16, by reason of carrying on such building operations. EX PARTE EDWARDS; IN RE EDWARDS. (1840) 9 L. J. Bk. 11 ; 1 M. D. & D. 3 ; 4 Jur. (o.s.) 153. Barrister not a. — A barrister, who was lessee of two plots of building land, entered into a contract with a certain builder to erect tliereon a certain number of liouses at a fixed price. Sub- sequently the contract v/as abandoned, and tlie lessee purchased BUILDER 123 building materials and proceeded to build two hundred houses, which he let as soon as each was completed. In the course of dealing in materials he accepted a bill in which he was described as a builder, and he also had brought an action for a slander which he alleged would injure him in his character as a trader subject to the bank- ruptcy laws. On petition to have a fiat against him annulled for want of trading, Knight Bruce, V.C., held, that the petitioner was not a " builder " within the meaning of tlie bankruptcy laws, but the fiat was annulled without costs, in the circumstances of the case. EX PARTE STEWART; IN RE STEWART. (1849) 3 De G. & S, 557 ; 13 Jur. (o.s.) 581 ; 13 L. J. Bk. 14. Barrister not a. — A barrister bought a building estate, and erected thereon several houses for sale, and in fact disposed of many of them. He had also built a house in Mayfair for sale, and had bought the materials for such Ijuilding operations in large quantities, and had accepted a bill of exchange in wdiich he was described as a builder. He had brought an action for slander in respect of words spoken in relation to his business as a builder. On hearing a rule, the Court {Pollock, C.B., Rolfe, Piatt, and Parke, BB.) held, that a person who builds houses upon lands which he has purchased, and afterwards sells the houses, such transactions being isolated and not part of a general system of business, is not a " builder " within the meaning of the bankruptcy laws. STUART V. SLOPER. (1840) 3 Ex. 700 ; 18 L. J. Ex. 321 ; 13 L. T. (o.s.) 100. Not Liable after Completion. — A liuilder commenced the erection of certain houses without giving to the district surveyor notice under § 38 of the Metro2Jolitan Braiding Act, 1855. On September 15, 1892, the district surveyor served notices under § 45 of the Act, requiring the builder to conform in certain respects to the by-laws made under the Act. On default, the builder was summoned, and appeared on ISTovember 29, 1892, when the magistrate made orders under § 46, requiring compliance with the notices. On further default, the builder was summoned for penalties, and at the hearing it was admitted that, at the date of the order, November 29, 1892, the builder had completed the buildings ; and the magistrate, following Smith v. Lcgg (1893), 1 Q. B. 398, see p. 131 infra, declined to enforce his orders, and dismissed the summonses for penalties. The Court {Haiohiiis and Lawrance, JJ.), in a considered 124 BUILDING jmljijinent on a case stated, held, that a justice had no jurisdiction to make an order, under § 4G of tlie Act, upon a builder who, at the date of the order, had completed, and given up possession of, the building, even though he was engaged in erecting it when tlio notice under § 45 was served upon him. WALLEN V. LISTER. (1894) 58 J. P. 283 ; 1 Q. B. 312 ; G3 L. J. M. C. 51 ; 10 E. 127 ; 70 L. T. 348 ; 42 W. E. 318. BUILDER'S DEFAULT By an agreement in writing a builder contracted to pull down and rebuild certain premises, which were to be erected " in carcase " before December 25, 189G, and tlie landowner agreed in that event to grant a lease of the premises to the luiilder. If the builder made default under the agreement, he was to forfeit all the l)enefits thereof, and the buildings and materials on the premises were to become the property of the owner, who had power to re-enter and taly tlie specified time. TERRY V. DUNTZE. (1795) 2 H. Bl. 389; 3 E. E. 423. CONTINUING OFFENCE Addition to House. — The owner of a certain house built an addition thereto upon the fore-court thereof, and brought out tlie addition considerably beyond the fronts of the houses on either side, without the consent of the urban authority. On May 2, 1881, the surveyor of tlie latter served a notice upon the owner warning him that he had committed an offence against § 156 of the Piddle Health Act, 1875, and that he would be liable to a 140 . CONTINUING OFFENCE penalty for every day during which the offence was continued after notice. The addition had been completed prior to the date of the notice. The owner was summoned three times between May and October 14, 1881, in respect of the continuing offence, and paid two fines. At length, on the third summons, he undertook to remove tlie addition, but failed to do so. At the hearing of an informati(jn on December 5, 1881, it was contended on the owner's behalf th;it the information was out of time, but the justices convicted, and fined the defendant, who appealed to the Queen's Bench Division. The Court {Grove, J., and Huddleston, B.) held, that the offence to which the penalty prescribed in § 156 was applicable, continued so long as the addition to the house was maintained after written notice from the urban authority, notwithstanding that the addition was comi)leted before the notice was given, EUMBALL V. SCHMIDT. (1881) 4G J. P. 5G7; 8 Q. B. D, G03; 40 L. T. 6G1 ; ?.0 W. E. 949. Air Space. — West Ham Corporation laid an information against a lirm uf builders, charging that they, having been con- A'icted aiul fined for erecting a certain dwelling-house without providing the air-space required by a certain by-law, did break the said by-law by continuing the offence after the date of the conviction. It was proved that the premises had never been the jjroperty of the firm of builders, that the builders were not in possession of the premises since the date of the conviction, and Unit tliey had no riglit, power, or authority to go upon the premises after the date of the conviction. The stipendiary magistrate convicted the firm of builders. The Court {Darling and Channell, JJ.), on a case stated, held, that the firm of builders, having no power to remedy the breach complained of, were not guilty of a continuing offence, and the conviction was quashed, WELSH & SON V, WEST HAM COBDOBATION. (1900) 1 Q. B. 324; G9 L. J. Q. B. 114; 82 L. T. 262. Billiard-room. — On November 5, 1902, the owners of certain premises were convicted of erecting a l)uilding, being a billiard- room, not enclosed with walls of brick, &c., or other liard and incombustible material, &c., contrary to by-laws made pursuant to the Bichlic Health Act, 1875, which did not give the local authority power to dispense with its provisions in any particular case. At the date of hearing an information laid against the CONTINUING PENALTY 141 owners for the continuing offence, the only evidence given was that one of tlie owners had been convicted for erecting the build- ing complained of, that the building was in the same state as at the date of conviction, and that lioth the owners resided in the premises to which the Iniilding was annexed. The defendants contended that the by-law was unreasonable, as the premises were in the country, and four miles from the nearest town. The Court {Lord Alvcrstone, G.J., Wills and Channell, JJ.) held, that the by-law was reasonable, that the conviction was not evidence of tlie continuing offence, and that there was power under § 16 of the Summary Jurisdiction Act, 1879, for the justices to deal with an offence against the by-laws. POMEBOY v. MALVERN URBAN DISTRICT COUNCIL. (1904) 67 J. P. 375 ; 89 L. T. 555 ; 1 L. G. E. 825 ; 20 Cox C. C. 572. Temporary Structure. — A temporary structure was erected by the respondents without obtaining a licence from the local authority, and it was completed more than six months before complaint was made. The magistrate dismissed the summons brought by the appellants under § 13 of the Metropolis Manage- ment and Building Acts Amendment Act, 1882, as not having been brought pursuant to § 11 of 11 & 12 Vict. c. 43. The local authority appealed, and the Court {Mattheio and Day, JJ.) held, that as long as the structure remained in existence the offence was a continuing one, and that proceedings might be taken within six months of the time within which it continued to exist. METROPOLITAN BOARD OF WORKS v. ANTHONY (1884) 49 J. P. 229 ; 54 L. J. M. C. 39 ; 30 W. E. 166. CONTINUING PENALTY The by-laws of a local authority provided inter alia that every person who proposed to build a house, &c., should deposit plans, section, and elevation thereof seven days before the date of the board-meeting at which the plans should Ije considered, accompanied by a written application for permission to build, the plans, &c., to be to the scale of 1 inch to 8 feet. The owner of certain premises deposited certain plans, &c., which were not approved, and he proceeded to build notwithstanding. On hearing a summons brought by the local authority, the justices convicted the owner, fined him £5, and ordered him to pay a further sum of 5s. a day for every day the building continued, from the date of notice of objection, pursuant to a by-law, which provided a 142 CONTRACT laaxiiiium pciuilLy ol' 40s'. t'<»r every day "duiiirj; which such work sliall continue or remain. . . ." The owner appealed, and the Court {Denman and Hawkins, JJ.), in a considered judgment on a case stated, held, that there was no power to inflict, by a l)y-law a continuing penalty for merely not pulling down a building actually erected and completed, and quaslied the conviction. The by-law was also held, ultra vires on another point. REAY Y, GATESHEAD CORPORATION. (1886) 50 J. P. 805 ; 55 L. T. 92 ; 34 W. E. 682. CONTRACT Lump Sum. — A builder contracted to execute the mason's work of a certain Ijuilding " agrecaUy to j^latis thereof now slwivn to me, and to the extent of this schedule (attached to the form of tender), for the sum of £286 10.9. 8^r/." The schedule contained the quantities which were priced by the Ijuilder, tlie total amount- ing to the above sum. The owner had power to alter the quantity of work required, and the work, when finished, was to be measured and paid for at the schedule or other rates, " as also in proportion to the lump sum in this letter of offer." The contractor made an under estimate of £30 in one of the items, and sought payment for the actual work done. On appeal, the Court {Lords Young, Craiyhill, and Rutherfurd-Clarli) held, that the contract was a contract according to the schedule of prices, and not for a lunq) sum, and that the builder was entitled to claim the full sum brought out by calculating the actual quantities at his prices. JAMIESON V. McINNES. (1887) 15 Ct. of Sess. Cas. (4th Ser.) 11. 17. Lump Sum. — A contractor agreed in writing with an owner to do certain work with materials to be cxcaA'ated on the site, according to a specification, for a hunp sum. The works required additional materials, those excavated being insufficient for the purpose. In an action by the contractor for the cost of the additional material, the Loi^d Ordinary found for the defendant. On appeal, the Court {Lord Justice Clerk and others) held, that the contractor could not claim more than the contract price, and, therefore, could not recover the cost of the extra materials. WEATHERS TON v. ROBERTSON. (1852) 1 Stuart M. & P. (Sc.) 333. Lump Sum. — A contractor agreed, for a lump sum, to construct certain water tanks " capaUe of sustaining a head-pressure o/ 60 feet of water." "When constructed it was found that the tanks CONTRACT NOT UNDER SEAL 143 would not sustain that pressure, and the contractor, in order to strengthen them, supplied certain atlditional iron stays. In an action by the contractor to recover the cost of the stays, in an addition to the contract price, tlie Sheriff- Substitute found for the defendant with costs. On appeal, the Court (the Lord Fresident, and others) affirmed that judgment. WILSON V. WALLACE. (1859) 21 Ct. of Sess. Cas. (2nd Ser.) li. 507. CONTRACT NOT UNDER SEAL Poor-law Guardians. — Certain poor-law guardians, at a board meeting, legally constituted and authorized to enter into contracts, ordered the plaintiff to fit up certain w.c.'s in the workhouse. The work was done and accepted and approved by the guardians. In an action by the tradesman for goods sold and delivered, and work and labour done, the Court ( Wightman, J., and others), in a con- sidered judgment, held, that although the contract was not under seal, the guardians were liable, as the purposes for which they were made a corporation require that they should provide such articles. CLARKE V. GUCKFIELD UNION. (1852) 21 L. J. Q. B. 349 ; 16 Jur. (o.s.) 686 ; 19 L. T. (o.s.) 207; 1 B. C. C. 81. Urban Authority. — The plaintiffs were engineers, and were employed by an urban authority to perform certain work, the contract being contained in certain correspondence, and not under seal. When the value of the work exceeded £50, the defendants entered into a contract under seal with the plaintiffs for tlie con- templated work, as required by § 174 of the Fuhlic Health Act, 1875. Subsequently the work was abandoned, and the plaintiffs brought an action to recover £530, for work done, &c. Cave, J., held, that as part of the work was unperformed when tlie seal was affixed, and there was consideration for affixing it in the promise of the plaintiffs to complete the work, the contract under seal was good in respect of the work already done, and the plaintiffs were entitled to maintain their action for that work ; that § 193 was intended to limit the penal consequences of a breach of its provisions to the specific penalties ; and, therefore, that the enactment did not render a contract made by an officer, the second plaintiff, with the local authority void, so as to disentitle him to sue upon it. MELLISS V. SHIRLEY LOCAL BOARD. (1885) 50 J. P. 214 ; 16 Q. B. D. 446 ; 55 L. J. Q B. 143 ; 53 L. T. 810 ; 34 W. R. 187. 144 CONVERSION CONVERSION A working bricklayer sued his employer for damages for detention of his tools, and for extras on his contract. Willes, J., held, that production of his contract, l)eing in writing, was necessary to support the claim for extras; hut that the employer had no right to detain the tools, as there was no agreement empowering him to do so, and that, even if there was, the user was a con- version. rOULTON V. WILSON. (1858) 1 F. & F. 403. CORNER HOUSE l>y the rvMic Health Act, 1888, § 3, it is unlawful to erect any building in any street or road, beyond the lino of the front main walls of the premises on either side adjoining. A building owner erected a house, at the corner of two streets in each of which there was a building line, which projected 7 feet beyond the front main wall in each of the streets. The magistrate dismissed a summons against the owner, and the local board appealed. The Court {Lord Coleridge, C.J., and Cave, J.) allowed the appeal. LEYTON LOCAL BOARD v. CA USTON. (1893) 57 J. P. 135 ; 9 T. L. Ft. 180. COVENANT Unusually restrictive. — The plaintiff agreed to sell, and the defendant to purchase, a plot of land, and in the default of the latter, the plaintiff l)rought an action for specific performance. The defendant resisted, and pleaded, inter alia, tliat the plaintiff's solicitors had represented to the defendant that the plot was subject to no covenants unusually restrictive. The deed contained a covenant that the grantee should build on the land houses, the rent of which should be double the value of the rent reserved by the deed, wiiliout limiting any time within whicli such building was to be required. Fry, J., held, that the covenant was unusually restrictive, and granted rescission to the defendant. ANDREW V. AITKEN. (1883) 22 Ch. D. 218; 52 L. J. Ch. 294; 48 L. T. 148; 31 W. R 425. Quiet Enjoyment. — Tlie defendant demised a house for twenty- one years at a rent of £130 per annum to the plaintiff, who covenanted not to use the premises otherwise than as a private CUMULATIVE STATUTORY PENALTY 145 dwelling-lioiise and tlie residence of a physician and surgeon. TIk; defendant entered into the usual covenant for quiet enjoyment. Soon after the lease had Ijecn executed and the plaintiff had entered into possession, the dofoudaut, who owned the adjoining plot of land, erected thereon buildings and flats about 20 feet higlier than the demised house, thereby obstructing the access of air, so that when fires were lighted in the rooms of tlie liouse, and the wind was in any direction but the north-west, the chimneys smoked, and rendered the rooms at certain times uninhaljitable, and at other times their user was attended with great discomfort and inconvenience. Buckley, J., held, that the defendant, by erecting the buildings in question, had broken his covenant for quiet enjoyment. TEBB v. GAVE. (1900) 1 Ch. 642; 69 L. J. Ch. 282; 82 L. T. 115; 48 W. E. 318. CUMULATIVE STATUTORY PENALTY A builder was employed to erect certain houses on a plot of vacant ground, adjoining the plaintiff's premises, which had no basement storey. The builder excavated in order to form a base- ment, and in doing so neglected to sufficiently underpin the party wall, and thereby caused damage to the plaintiff's premises. The builder had given due notice to the district surveyor under § 38 of the Metropolitan Building Act, 1855, but not to the adjoining owner under Fart 3 of the Act. In an action by the adjoining owner against the builder tried by Willes, J., the jury awarded the plaintiff damages. On hearing a rule obtained by the defendant, the Court {Erie, C.J., and Willes, J.) held, that the builder is not an " other person " within the meaning of § 108 of the Act, which requires a month's notice of action to be given, before writ or process is sued out against " any district surveyor or other person for anything done or intended to be done under the provisions of the Act." The penalty imposed by § 94 on a building owner who fails to make good damage contemplated by the Act is cumulative. WILLIAMS V. GOLDING. (1865) L. E. 1 C. P. 69 ; 1 H. & E. 18 ; 35 L. J. C. P. 1 ; 11 Jur. 952 ; 13 L. T. 291 ; 14 W. E. 60. CUSTOM Dublin. — X builder by negligent ':horing up, &c., in executing a building contract, took away the lateral support of a certain M.B.c. L 14G CUSTOM house, Nvhicli fell, and l)y rcasou of which the })laiuliir8 house fell also. Ill an action for damages for the loss of his house, the jilaiutiir alleged a custom in the Duhliii Imilding trade, that it is the duty of a builder, pulling down a house for the purpose of erecting another, to use skill and precaution in and about bracing and shoring up the party walls between the house taken down and the next adjoining houses, so as to prevent such party walls from falling or l)eing injured ; and the jury found for tiie plaintifr. Tlie Court held, in arrest of judgment, that such a custom was unreasonalile and void. KEMPSTON V. BUTLER. (1861) 12 Ir. C. L. II. 516. General or Weekly Accounts. — A Ijuilder contracted under seal to build a house and premises for a certain sum. The contract stipulated that no alterations or additions should be admitted unless directed by the written order of the defendant's architect, " and a weekly account of the work done thereunder should be deli\'ered to the architect every Monday next ensuing the per- formance of such work." The builder l)rought an action on the contract against the defendant. The Court {Cocl'hurn, C.J,, Hill and Blaeliburn, J J.) held, on a case stated by an arljitrator, that parol evidence was admissible to show that, by the usage of the building trade, " weekly accounts " meant accounts of the day- work only, and did not extend to extra work capable of being measured. MEYERS, OR MYERS v. SARL. (1861) 3 E. & E. 306; 7 Jur. 97; 30 L. J. Q. B. 9 ; 9 W. E. 96. General. — A builder, on invitation ])y the defendants' surveyor. submitted a tender for the execution of certain works, which proved to l)e the lowest sent in, and to which the surveyor made no objection. A custom to accept the lowest tender was alleged. In an action by the huilder for work and materials, the County Court judge found that the conduct of the defendants amounted to an acceptance. On appeal, the Court {Coleridge and Erie, J J.) affirmed the judgment of the Court below, subject to the reduction of the damages owing to a mistake in the calculations. PAULING V. PONTIFEX. (1852) 20 L. T. (o.s.) 126 ; 1 W. E. 64. London. — The defendants built an extensive warehouse in the City of London which obstructed the access of light and air to the CUSTOM 147 plaintiffs premises. lu au action for an injunction, the defendants pleaded that by the custom of London they could build on ancient foundations to any height. On demurrer, the Court ( JFilles, Erie, and Bi/ks, J J. ; Williams, J., disscntiwj) held, in a considered judgment, that the custom of London pleaded was destroyed by the Prescription Act, 1832, and that the twenty years referred to in §§ 3 and 4 of the Act is to be taken to be the period next before some action or suit, wherein the claim in the action shall have been brought in question. COOPER V. HUBBUCK. (18G2) 12 C. B. (N.s.) 45G ; 31 L. J. C. P. 323 ; G L. T. 826 ; 9 Jur. 575. London. — The plaintiffs were reversioners of certain premises in the City of London, in which there were certain ancient lights. The defendant erected a building which interfered with the access thereto of light and air. The plaintilfB brought an action against the defendant, who pleaded the custom of London, authorizing one owner to obstruct the access of light to adjacent premises, in building on an ancient foundation. The Court {Lord Dcnrnan, C.J., Patteson, Williams, and Wightman, JJ.) held, that in respect of an interference with lights more than twenty years old, the Statute 2 & 3 Will. IV. c. 71, gave the owner an indefeasible right, and that the custom of London could no longer be pleaded as a defence. S ALTERS' GO. v. JAY. (1842) 3 Q. B. 109 ; 2 G. & D. 414; 11 L. J. Q. B. 173 ; 6 Jur. 803. York. — A custom that obtained in the city of York, whereby a person could erect on new foundations where no building was before, a house which interfered with his neighbour's lights, was held void per totam curiam. MOSELEY V. BALL. (1611) Yel. 216; 9 Coke 58a. DAMAGE To Highway. — The plaintiffs, being the district highway authority, sued tlie defendants to recover the sum of £484 15;>. l\d., the amount of extraordinary expense incurred by them in repairing certain highways. The defendants employed certain builders, under contract, to erect a lunatic asylum in the district. In executing the works extraordinary traffic was conducted over the 148 DAMAGE lii<'h\vays, but the defendants denied that it was so conducted by them or by their orders. The plaintiffs' surveyor testified that extraordinary expenses had been incurred by the plaintiffs in repairing the highways by reason of the damage caused by the exces- sive weight passing along the same, or extraordinary traffic thereon. JSigham, J., held, in a considered judgment, that the plaintiffs were entitled to succeed, as the extraordinary traffic had been conducted " by or in consequence of " the order of the defendants, within the meaning of § 12 of the Locomotives Act, 1898, but as proceedings had not been taken in respect of the damage caused in the execution of tlie first of the two contracts, within six months after completion of the contract, the plaintiffs could not recover in respect thereof. EPSOM URBAN DISTRICT COUNCIL v. LONDON COUNTY COUNCIL. (1900) 64 J. P. 726 ; 2 Q. B. 751 ; 69 L. J. Q. B. 933 ; 83 L. T. 284. To Highway. — A building owner contracted with several persons for the supply of building materials required for certain improvements he proposed to carry out at his residence. He knew that the materials would be delivered by a certain route in trucks drawn by traction engines, but did not give any directions as to the route or means of conveyance. The price in each case included the cost of carriage, and property in the materials did not vest in the building owner until they had been delivered at the residence of the owner, and accepted on his behalf. The owner was summoned under § 23 of the Highioays and Locomotives Amendment Act, 1878, to recover the cost of making good the damage done to the roads traversed by the traction engines, and the justices, being of opinion that he was a " person by whose order such weight or traffic liad been conducted," ordered him to pay £750 damages and costs. The Court of Quarter Sessions reversed the decision of the justices, and stated a case. The Queen's Bench Divison {Cave and Wills, J J.) reversed the decision of the Quarter Sessions. On appeal, the Court of Appeal {Lord Esher, M.R., Righy and Lopes, L.JJ.) reversed the decision of tlie Divisional Court, and restored that of the Court of Quarter Sessions. The County Council appealed, and the House of Lords {Lords Herschell, Watson, Shand, and Davey) a firmed the judgment of the Court of Appeal. KENT COUNTY COUNCIL v. GERARD. (1897) 61 J. P. 804; A. C. 633; 66 L. J. Q. B. 077; 77 L. T. 109; 40 W. 1{. 111. DAMAGE 149 Measure of. — The plaintiffs were a firm of house-painters, and contracted witli the defendant to erect a " boat-staging," or plat- form, to enable them to paint a certain house. Owing U) the platform being insecurely fastened by the defendant, an employe of the plaintilfs was so injured that the plaintiffs were obliged to settle legal proceedings taken against them by the employe, under the Emploijcrs' LiaUlity Act, 1880, by paying him a sum of £125. They brought an action against the defendant for breach of his contract, and Denman,J.,helcl, that the defendant was liable on the contract ; but, inasmuch as the plaintiffs had employed a competent contractor to erect the platform, and there was no evidence of negligence by the plaintiffs, they were not liable in law to their employe, and, therefore, the sum of £125 was not recoverable as damages from the defendant for breach of contract. KIDDLE & SON v. LO VETT. (1885) 16 Q. B. D. 605; 34 W. 11. 518. DANGEROUS STRUCTURES Adjoining Structui'es. — The owner of certain premises, in the course of building operations, left standing two party walls which were cracked and otherwise defective. An order was made by a police magistrate, under the Metropolitan Building Act, 1855, requiring the owner to take one of them down, and secure the other. In default by the owner, the Metropolitan Board of Works entered upon the premises, and pulled down one of the walls ; and subsequently gave notice to the owner to underpin or otherwise secure the other wall. In his further default, the Board entered and did the necessary works themselves. Similar notices were served on the two adjoining owners, both of whom, however, also made default. The magistrate made an order against the owner, requiring him to pay the total cost incurred by the Board, and refused to make any deduction in respect of the contribution payable by the adjoining owners. The owner appealed, and the Court (Lord Coleridge, C.J., and Field, J.) held, that the owner could not require that the adjoining owners should also be sum- moned, and that, upon the hearing of such a summons, he could not escape liability for the expenses actually incurred, by merely showing that they included items in excess of the market price of labour and materials at the date of the execution of the works. DEBENHAM v. METROPOLITAN BOAIW OF WORKS. (1881) 45 J. P. 190 ; 6 Q. B. D. 112 ; 50 L. J. M. C. 29 ; 43 L. T. 596 ; 29 W. R. 353. 1 50 ^AXGEROrs STlirCTUllKS Complaint too Late. — The (nviier of ceilaiii premises in a tlaii.^eidus cDiiditiou was required by the Commissioners of Police, nniler the provisions of the Metropolitan Building Act, 1855, to secure or take them down. In default, a summons was issued, and tlic maffistrate ordered the owner to take down the defective structure to the satisfaction of the Police Commissioners' surveyor within (lue mouth. The owner did not comply with tlie terms of this order, and the Commissioners of Police had the structure taken down, and they summoned the owner for the cost thereof under § 97 (6). The magistrate dismissed the summons on the ground that the complaint had not been made within six months, pursuant to § 11 of 11 & 12 Vict. c. 43. On a case stated, the Court (Lord Campbell, C.J., Wightman, Hill, and Quain, JJ.) held, that the six months were to be reckoned from the date of demand and refusal, and not from the date of the incurring of the expense, and they sent the case back to the magistrate. LABALMONDIERE v. ADDISON. (1858) 1 El. & El. 41 ; 28 L. J. M. C. 25 ; 5 Jur. 433. Cost of Hoarding. — The surveyor of a local authority served a notice personally upon the agent acting for a certain property, requiring him to repair or take down the roof of one of the houses thereon, which was in a dangerous state. The notice was not complied with, and the surveyor had a hoarding erected at the cost of £1 8s. in front of the house. A summons subsequently taken out was not proceeded with, as the house had been meantime repaired by the agent, who, however, declined to pay the costs of the hoarding. On hearing a summons to recover the cost of the hoarding, the agent contended that the summons was pre- mature, as the three months allowed by § 257 of the Puhlic Health Act, 1875, to go to arbitration in respect of an apportionment, liad not elapsed. The justices dismissed the summons, and the surveyor appealed. The Court {Lord Alcer stone, G.J., Lawrancc and Kennedy, JJ.) held, that § 257 did not apply, as there was no question of apportionment, and alloiucd the api)eal. USK URBAN DISTIUGT COUNCIL v. MORTIMER. (1904) 68 J. P. 38 ; 90 L. T. 25 ; 2 L. G. R 135 ; 20 T. L. R. 96. Cost of Part of Work. — A certain structure was reported to the Metropolitan ]>oard of Works to be in a dangerous condition, and they instructed tlieir surveyor to inspect and report to them as to its condition. On February 2, 1873, he certified the structure DANGEHOrS STRUCTURES 151 to be in a dangerous state, and on February 3 notice to repair was served on the owner pursuant to § 72 of the Metrojjolitan Building Act, 1855. The owner made default. On April 4 the work was only partly carried out, and as nothing further was done, a sum- mons was taken out against the owner on May 13 and adjourned till May 27, and again until June 10, and iinally until July 1 when the work was completed, and the summons witlidrawn. The owner refused to pay the surveyor's fees, &c., and was sum- moned. The magistrate ordered the payment of the fees, but refused to order payment of the charges : 3s. ^d. for notices, 2.s. Qid. for service thereof, and 2s. M. for office expenses. The Court {Blackhurn, Quain, and Archihald, JJ.) held, that the Board were entitled to charge the first two items, but not the last. METROPOLITAN BOARD OF WORKS v. FLIGHT. (1873) L. E. 9 Q. B. 58 ; 43 L. J. M. C. 46 ; 29 L. T. 608. Costs of Work. — The respondent gave notice to the owners in fee, under § 72 of the Metropolitan Building Act, 1855, to secure or pull down certain dangerous premises, and subsequently obtained an order from a magistrate directing them to do so. In default the respondent had the necessary work executed himself, under § 73 of the Act, and obtained a magistrate's order against the owners for payment of the costs so incurred. On appeal, the Court (Cockhurn, C.J., Crompton and Hill, JJ.) held, that the lessee was primarily liable, and that, therefore, the order was bad, being directed to the appellants and not to tlie lessee, who was " owner " within the meaning of the Act. MOURILYAN & ANOTHER v. LABALMONDIERE. (1859) 1 El. & El. 533 ; 30 L. J. M. C. 95 ; 7 Jur. 627 ; 3L. T. 668; 9 W. E. 341. Incumbent of a Church is not the Owner. — The defendant was the incumbent of a church in Lambeth wliich the district surveyor had certified to be in a dangerous condition. Notice was served upon the incumbent to secure the dangerous parts of the building, and in his default, a summons, addressed to " the owner," was served upon him, and the magistrate made an order in the terms of the summons. The incumbent having neglected to execute the necessary works, the Board canied them out, and the magistrate ordered the incumbent to pay the cost. The magistrate, however, dismissed a further summons, calling upon the defendant to show cause why a distress warrant should not be issued against him to levy the amount. On hearing a rule calling on the magistrate to show cause why a mandamus should not issue, 152 DANGErvOUS STRUCTURES Ihe Court {Cudhurn, C.J., and McUor, J.) held, that, although the freehold was vested in the incumbent, he is not tlie " owner," within tlie meaning of the Metropolitan Btnlding Act, 1855, so as to be personally liable. B. V. LBK (1878) 4 Q. B. D. 75. -Injury from. — The plaintiff, in course of lousiness, called upon the tenant of portion of a building, owned by the defendant, and in coming downstairs, owing to their defective condition, he fell, and sustained personal injuries. In an action brought to recover damages, the plaintiff was awarded £200. The defendant applied for a new trial or judgment, on the ground that there was no evidence of liability on his part. The Court (Lord Eshcr, M.E., Bourn and Kay, LJJ.) held, that there was by necessary implication an agreement l>y the defendant witli liis tenants, to keep the staircase in repair, and, inasmuch as the defendant must have known that it would be used Ity persons having Inisiness with them, tliere was a duty on his ]i;ut towards such persons to keep it in a reasonably safe condition. MILLER v. HANCOCK. (1893) 57 J. P. 758 ; 2 Q. B. 177 ; 4 II. 478 ; 69 L. T. 214 ; 41 W. E. 578. Lessee of a Chapel is Owner. — The owners of a private chapel leased it for a period of twenty-one years. After notice duly given that the chapel was dangerous, and in default of the owners, the Connnissioner of Police had certain works executed to secure the same, and sought to charge the owners with the cost of the work, pursuant to tlie provisions of the Mdrojooliian Buildincj Ad, 1855. The magistrate made the order sought, from which the owners appealed, and the Court (Codchirn, C.J., and Crom2-)ton and Hills, JJ.) held, that the lessee was "owner," within the meaning of § 3, and the order was quashed. B. V. MOUBILYAN AND ANOTHEB. (1861) 3 L. T. 668. -Local Authority may delegate Authority to Superintending Architect— The London County Council had made an order under tlie Lrmdon Buildimj Ad, 1894, relating to certain premises in a dangerous condition, and in carrying out the order the Council had incurred certain expenses, which they sought to recover from the owner. It was admitted that the matter had not been before DANGEROUS STRUCTURES 153 tlie Council, and tliat tlie notices, &c., had heen issued l»y their officers under authority which purported to lie delegated to the superintending architect by an order made hy the Council's pre- decessors. The magistrate dismissed the summons. On a case stated, the Court ( Wills and Wright, J J.) held, that the duties of Council under the London Building Act, 1894, as to dangerous structures are ministerial, and may be delegated to their superintending architect. LONDON COUNTY COUNCIL v. HOBBIS. (1897) 61 J. P. 85 ; 75 L. T. 687; 45 W. 11. 270. Not Dangerous to the Public. — The London County Council served notices, under § 72 (1) of the Metropolitan Building Act, 1855, requiring the defendant to take down certain dangerous premises, of which he was the owner. In default, he was sum- moned under § 73 of the Act, and the magistrate found, that the premises were in a dangerous state, that they were not near any highway or public thoroughfare, and, therefore, they could not be dangerous to passers-by. The defendant contended that the section only applied to structures dangerous to the public, but the magistrate overruled this contention, and ordered the demoli- tion of the dangerous portions, refusing to state a case. On motion for a mandamus, the Court {Cave and Collins, JJ.) held, that the magistrate's decision was right, and refused the rule. LONDON COUNTY COUNCIL v. HERRING. (1894) 58 J. P. 721 ; 2 Q. B. 522 ; 63 L. J. M. C. 230 ; 10 E. 455. Owner Liable for Injury from Defective Pavement. — In De- cember, 1895, the defendants served a notice, under § 106 of the London Building Act, 1894, upon the owner of a house, requiring him to execute certain works rendered necessary owing to its dangerous state. The owner did not comply with the notice, and also made default in respect of an order, made by a metropolitan police magistrate under § 107, to pull down the dangerous walls, &c. In March, 1895, therefore, the defendants, pursuant to their statutory powers, entered the premises and t6ok down the dangerous portions of the house. To admit of the necessary hoarding, &c., being erected, parts of the foot-pavement were removed. The cost of the work, including the cost of the timber for the hoarding, &c., amounted to £11 7s. 6f?., and was paid to the defendants by the owner. The house was subsequently rebuilt by the owner, but the foot-pavement was not restored. 154 DANGEROUS STRUCTURES III Aiir:viATroNS 161 '* Quantum Meruit." — A builder contracted to execute the carpenter's work of a certain house for a fixed sum. The plan of the roof had been deviated from. In an action liy the Ijuilder for work and labour, Lord JCrni/o/i held, that where a l)uilder agrees to erect a building for a fixed sum and additions aie made, he is bound l>y the contract as far as it can Ije traced, and entitled to sue on a quantuvi meruit for the excess only. PEPPER V. BURL AND. (1792) 1 Peake 139 ; 3 11. U. 665. Suggested by Builder. — A builder entered into a contract with the owner (a woman) of certain premises to build a house for a certain sum by a given date, according io plans and specification, to the satisfaction of the owner, or her surveyor. In the progress of the works the builder suggested to the owner certain deviations or alterations. In an action by the builder for the price thereof, there was no evidence of the owner or surveyor having expressed satisfaction with the work, but the surveyor had seen the work going on, and had not objected. The plaintiff agreed that the defendant had not promised to pay l)y measure and value, and only slight e\idence was offered that the defendant had agreed to pay extra for the alterations. An unskilled person would not have known they would have increased the cost. Martin, £., directed a nonsuit. JOHNSON v. WESTON. (1859) 1 F. & F. 693. Verbally authorized. — The plaintiff contracted with certain guardians, the contract providing that deviations or additions were not to be paid for unless ordered iu writing. In the course of the works the plaintiff executed atlditional works to the know- ledge of the guardians, but without any other order than the verbal directions of the architect. The plaintiff brought an action to recover the l3alance due to him. The Vicc-Chancdlor allowed the claim on the ground that the guardians had waived the contract by their conduct, but on demurrer, Lord Cotteiiham, L.C., allowed the general demurrer for want of equity. KIRK v. BROMLEY UNION. (1848) 17 L. J. Ch. 127 ; 2 Ph. 640 ; 12 Jur. 85. DWELLING-HOUSE Below Ordnance Datum. — Certain dwelling-houses were erected by the owner on a piece of land at Charlton, in the Borough of Greenwich, without the permis.'^ion of the London County Council. The level of the lowest floor is 7 feet above ordnance datum, and the land on which they were built is about M.B.c. M iG2 DWELLlNG-HOUSE 1 foot G iuclics ur '2 fecL below the lowest floor, i.e. 5 feet or 5 feet G iuclics above orduaucc datuiii. Triuity : high- water mark is 12 feet (J iiichcH above ordnauce daUiiu, Lhcrefore the site is about 7 feet Ijelow Triuity high-water uiark. The houses were draiued iuto a 15-iuch sewer, the property of Grecuwich Borough, which falls iuto the Loudou County Couucil's southern main outfall sewer, the latter at times being liable to be flooded, and being discharged by means of a pumping station under the control of the London County Council. The magistrate held that the land did not admit of being drained by gravitation into an existing sewer of the London County Council within the meaning of § 122 of the London Biiilding Act, 1894, and convicted the appellant. On a case stated, the Court {Lord Alverstone, C.J., Lawrance and Kennedy, JJ.) held, that laud situated at such a level tliat the drainage from it will find its way by gravitation into the sewer under the ordinary conditions of the sewer, was so situated as to admit of being drained by gi-avitation iuto an existing sewer within the meaning of § 122 of the Loudon Building Act, 1894. LJLLIS V. LONDON COUNTY COUNCLL. (1904) 68 J. P. 99 ; 1 K. B. 283 ; 73 L. J. K. B. 151 ; 90 L. T. 206 ; 52 W. K. 381 ; 2 L. G. E. 147. Partly used for Trade. — A builder proposed to erect a licensed beerhouse on the site of an old beerhouse. The London Building Act, 1894, § 74 (2), requires that in every building exceeding a certain area, used in part for purposes of trade or manufacture and in part as a dwelling-house, the part used for the purposes of trade or manufacture shall be separated from the part used as a dwelling- house, as directed by the Act. The magistrate found as a fact that the basement and ground floor of the building were to be used for the purposes of trade, and the part above that was to be used as a dwelling-house. He, however, held, that the case was govei-ned by Carritt v. Godson (1899), 2 Q. B. 193 (see p. 163), and dismissed the summons. The Divisional Court iJLord Alverstone, C.J., and Lawi-ance, J.) dismissed the district surveyor's appeal ((1901) 2 Q. B. 122). The Court {A, L. Smith, M.B., Vaughan-Williams and Stirling, L.JJ.) held, that the question whether the building was within § 74 (2) of the Act was concluded by the finding of fact in the case at bar, which was binding on the Court. Judgment of the Divisional Court reversed. DICKSEE V. EOSKINS. (1901) 65 J. P. 612 ; 2 K. B. 660 ; 70 L. J. K. B. 851; 85 L. T. 205; 49 W. K. 693. DWELLINQ-UOUSE 163 With Public-house attached. — A liim of Uuildcis engaged in erecting a public-liouse were sunimuned by the district surveyor for not complying with a notice served on them under the London Biiilding Act, 1894, requiring them to construct tliroughout, of fire- resisting materials, all passages, staircases, and other means of approach to the part of the house to be used as a dwelling-house as required by § 74 (2) of the Act. The magistrate dismissed the summons, being of opinion that the building was not a Ijuilding used or intended to Ije used in part for the purposes of trade and in part as a dwelling-house within the meaning of the sub-section : even if it was, the way througli the Ijar to the lohhy was not, in the circumstances, a means of approach to the part of the Inulding to be used as a dwelling-house. The Court {J^<^iy end Laurancc, J J.) held, that a fully licensed pultlic-house is not a building " used in part for the purposes of trade or manufacture and in part as a dwelling-house " within the meaning of the sub-section ; so that the means of approach to the part used as a dwelling-house need not be constructed of fire-resisting materials as required by that section. CARBITT V. GODSON & SON. (1899) 63 J. P. 644; 2 Q. B. 193; 68 L. J. Q. B. 799; 80 L. T. 771 ; 19 Cox C. C. 355. DISTANCE BETWEEN HOUSES .V local improvement Act provided that houses facing each other should be separated by a space of at least 24 feet in width, and all streets thereafter formed should l)e not less than 24 feet in width. The defendant was convicted for erecting a stable and wall, each of which by the interpretation clause being a house, within 24 feet of another existing house. It was not proved that the locality in which the stable and wall were erected was a street. On a case stated, the Court (CocJihcrn, C.J., Erie, Crompton, JJ., Bramwell and Watson, BB.) quashed the conviction, and held, that the provisions of the Act applied to buildings in streets and not isolated places. B. V. SIDEBOTHAM. (1859) 28 L. J. M. C. 189 ; Bell C. C. 171 ; 7 W. B. 450 ; 5 Jur. 1083 ; 8 Cox C. C. 206. EAVES-DROPPING Unity of Possession. — The defendant's predecessor in title was owner in fee of a certain house and land, and purchased the 164 EAVES-DROPPING adjoining prciuises. By liis will lie devised tlie house and land to his wife for life witli remainder in fee to one defendant, and the adjoining premises to his wife for life and afterwards to his son, the plaintilf's Imsband. On the death of the testator, and prior to the date of a lease of the house and land granted to the above-named defendant, it ap]jeared that the trustee was in pos- session of l)oth properties. J'or twenty years and upwards the plaintiff's house had enjoyed the easement of eaves-dropping from its roof into a channel which })assed through the defendant's premises. Thirteen years prior to action brought the plaintif["s wall, wliich befcne had projecting pantiles, was raised 3 feet, and the thatcli i)rojected some inches further than the pantiles. In an action tried before Fattcson, J., the plaintiff obtained damages, and the Court {Lord Ahiuf/cr, C.B., Bolland, Aldcrson, and Gurney, BB.) lefused a rule for a new trial, and held, that unity of possession did not extinguish, Ijut only suspended, the right to the easement claimed, and that the riglit to have the rain-droppings fall on the land of another was not destroyed by raising the height of the wall. THOMAS V. THOMAS. (1835) 2 C. M. & 11. 34; 1 Gale Gl ; 5 Tyr. 804; 4 L. J. Ex. 179. ELEVATION Small Excess would not entitle to a Mandatory Injunction. — uMthough the Court has })ower to restrain parties from using a building which has been erected in a form that is in violation f)f tlie terms of an Act of Parliament, yet a small excess in tlie height of a building beyond that to wliich it miglit lawfully ha^■e been raised, where no irreparable injury arises from such excess in height, would not be a case in whicli the Court would interfere by interlocutory injunction to restrain the use of the l)uildiug after it had been erected. DOVER HARBOUR v. SOUTH EASTERN RY. (1852) 9 Hare 493 ; 21 L. J. Ch. 886. EMPLOYER'S SATISFACTION "Work to be done to. — The plaintiff agreed to carry out certain works of excavation to " the entire satisfaction " of the local authority, and of the defendants or their agents, and, in the plaintiff's default to do so, the defendants had power to enter upon and take possession of the works and complete the same ; the cost EMPr.OYEirS SATISFACTION 1G5 of the defendants so doing was to fall on the plaintiff. The work did not proceed to the satisfaction of the defendants, and they entered upon and took possession of the works, &c. The plaintiff sued the defendants for work and labour done. The Court (Cock- bur )l, C.J.,and otlier judges) held, that the defendants, if dissatisfied, whether reascmably or unreasonably, with the progress of the works, were entitled to enter, })r(»vided tliey were acting hond fide, and gave judgment for tlie defendants. ^TABHAIW V. LEE. (1863) 32 L. J. Q. B. 75 ; 3 B. & S. 364 ; 9 Jur. 908 ; 7 L. T. 815; 11 W. E. 361. ENGINEER Certificate of. — Tiie plaintiffs contracted witli the corporation to carry »nit certain works, and to be paid only upon the certificate of the engineer to the corporatieen fraudulently withheld, but that he was ready to do liis duty according to the terms of the contract, and they dismissed the 1)ill. SCOTT X. LIVERPOOL COIIFORATIOX. (1859) 28 L. J. Ch. 230; 3 De 0. .^' J. 334; 5 Jur. 104; 7 W. E. 153. Fraud. — No action at law for not certifying lies at the suit of a railway contractor against the engineer employed by the railway company, where the contract provides that the contractor's re- muneration shall depend upon his olitaining the engineer's certificate that the works have been executed, and the engineer has not been a party to the contract, although his refusal to certify has been the result of wantonness or fraud, or even of collusion with the railway company. MURPHY V. BOWER. (1800) 2 Ir. L. E. C. L. 500. 166 ENGINEER Fraud of. — Certain contractors undertook to Ijuild the brick- work of a railway for an agreed sum, and tlie company's engineer certified the completion of the contract according to specification, whereupon the balance due was paid to the contractors. In au action Ijy the company against the contractors for not buikling the brickwork of the thickness required by the specification, &c., Pollock, C.B., held, that the alleged fra\ul or neglect l)y the engineer was material on the question of damages, althougli not affecting the right of the company against the contractors. SOUTH EASTERN BY. v. WARTON. (1861) 2 F. & F. 457 ; 6 H. & N. 520 ; 31 L. J. Ex. 515 ; 8 Jur. 391 ; 6 L. T. 799. -Negligence of. — A firm of engineers were employed by a local b(jard to design, and supervise the carrying out of, a scheme of drainage. In an action brought l)y the firm against the l>oard to recover the amount of their fees and charges, the defendants counterclaimed for damages on the grounds of the negligence of the firm of engineers, (1) in designing and planning the scheme, (2) in super\dsing the work, (3) in specifying an improper descrip- tion of concrete, and (4) omitting to provide for the due escape of sewer gas. It appeared at the trial that tlie board had appointed a clerk of the works, to superintend the execution of the contract, a'j;ainst whose ajipointment the engineers had remonstrated. The action was refei'ved, and tlie Official Referee found the engineers negligent, (1) in not slu)wing properly on the plans the works to be executed, (2) in specifying concrete to be composed of so small a proportion of cement as one in nine parts of shingle, and (3) in over certifying for the work done. On hearing a motion to set aside the Official Referee h judgment in favour of the board, Mathcio, J., held, that the engineers were liable in damages for tlicir neglect for the sum necessary to make good the defects of llio scheme, and to repay the amount overpaid to the contractors on their certificates, and that their liability was not limited to the auKnuit of their professional charges. SAUNDERS V. BROADSTAIRS LOCAL BOARD. (1890) H. B. C. 64. EVIDENCE Contract unstamped. — A 1)uilder contracted in writing to l)uild a house for the defendant, and execute certain other works, l)ut the contract was not stamped. In an action to recover the cost of certain extra works, Lord Tenterden, C.J., held, that the Court could EVIDENCE 1G7 not look at the unstamped contract in order to ascertain whetlier or not the extra works were included in the contract, and he non- suited the plaintiff, VINCENT V. COLE. (1828) 3 0. & P. 481 ; 1 M. & M. 257. Tender with Specification Proof of Contract. — The defendant was a contractor, and read aloud a speciiicatiou of proposed works to certain tradesmen, and invited them to submit tenders for the same. The plaintiff handed in a tender signed with his name, but there was no evidence that it was in his handwriting. He performed the work, and su1)sequently a dispute arose between the parties. In an action l>y tlie tradesman, objection was taken by the defendant that there was no proof of a contract, and Rolfe, B., held, that such tender taken with the specification sufficiently proved the contract. ALLEN V. YOXALL. (1844) 1 C. & K. 315. EXECUTED CONSIDERATION Local Authority liable though Contract not sealed. — The pluintiff was engineer of the defendants in respect of certain sewage works carried out by them. A committee to whom the matter was referred, under § 56 of the Local Government Act, 1894, passed a resolution in accordance with which the plaintift' visited another district, not included in the scheme, made a survey, and submitted a report thereon and an estimate to the committee. He was then instructed by the committee to act as engineer of the new works also. No agreement under seal as to his emplopnent or remuneration was made, but a correspondence passed between the plaintiff and the clerk to the defendants on the subject. The plaintiff, with the exception of the correspondence, was in communication throughout witli the committee, whose resolutions were submitted to, and appnn'ed by, the defendants from time to time. The plaintiff carried out the necessary duties, the scheme was sanctioned l)y the Local Government Board, quantities were taken out ))y him and tenders procured. No tender was accepted, and the defendants declined to pay the plaintiff the amount of remuneration which he claimed as due upon the agreement disclosed in the correspondence. The plaintiff l)rought this action, and it was contended that there being no agreement under the common seal of the defendants he could not recover. Darling, J., took this view, and gave judgment for the defendants, from which the plaintiff appealed. 1G8 EXECUTED CONSIDERATION The Court (Vauf/hcoi Williams, Stirling, and Mathew, L.J J.) held, that there was a contract to pay implied from the acts of the corporation, and the al)sence of a contract under the seal of the corporation is no answer to an action brought in respect of the work done or the goods supplied. Clarh V. Citchfidd Union, 21 L. J. Q. B. 349, approved. Nicliohoii V. Bradficld Union, L. R. 1 Q. B. G20, approved. LAWFOIW V. BILLERICAY EUllAL DmTRICT COUNCIL. (1903) 67 J. P. 245 ; 1 K. B. 772 ; 72 L. J. K. B. 554 ; 88 L. T. 317 ; 51 W. E. 630 ; 1 L. G. E. 535. EXECUTED CONTRACT Not Binding if not under Local Authority's Seal.— Tlie C()i'])oration of Leamington made a contract, \\\\<\qv § G of the PiMic Health Act, 1875, with a contractor to execute certain waterworks. On failure of the ccjntractor to complete the con- tract, it was determined l»y tlie corporation, and they directed their engineer and sur\'pyor, hy a resolution, to enter into a contract for the completion of the waterworks. 1'he engineer accordingly, as agent for the corporation, directed the plaintiffs to execute the works, and certain extra works, on the hasis of the cancelled contract ; and tlie works were duly executed to the entire satis- faction of the engineer. A memorandum of tliis agreement was made, and signed ])y tlie engineer and tlie plaintiffs. The plaintiffs, who had received ])ayment of large sums previously, brought an action to recover a sum of lietween £6000 and £7000, balance due to them for work done, and the defendants pleaded, inter alia, that the contract, not being under seal, as required by § 174 (1) of the FiMic Health Act, 1875, and the value being over £50, the ])laintifts covdd not recover. The Court (Mathew and Williams, JJ.) held, that tlie crmtract was not binding on the defendants, and the Court of Appeal (Brett, Cotton, and Lindlcy, L.JJ.) affirmed that judgment (8 Q. B. D. 579). The plaintiffs appealed, and the House of Lords (Lords BlacJiburn, Brannvell, and FitzGcrald) held, that the sub-section is obligatory and not merely directory, and applies to an executed contract, of which the urban authority have had the full benefit and enjoyment, and which has been effected liy their agent, duly appointed under their common seal. YOUNG & CO. V. LEAMINGTON SPA CORPORATION. (1883) 47 J. P. 660 ; 8 App. Cas. 517 ; 52 L. J. Q. B. 731 ; 49 L. T. 1 ; 31 W. E. 925. EXECUTOR 169 EXECUTOR Completing Contract. — -A builder was employed to erect certain woodwork in connection with a public banquet, but before the work was begun he died. The plaintiffs, as his executors, performed the work, using the materials of the deceased. In an action by the executors for work and labour done and materials found, the Court held, that the executors might recover the value of the materials. MARSHALL v. BROADHURST. (1831) 1 C. & J. 403 ; 1 Tyr. 349 ; 9 L. J. (o.s.) Ex. 105. EXEMPTIONS London Building Act, 1894. — A builder entered into a build- ing agreement with the Haberdashers' Company on January 8, 1894, to erect on certain land, their property, a number of houses, the plans of which were to be approved by them, at a specified cost per house. It was provided that the work was to be executed in accordance with tlie requirements of the Metropolitan Buildimj Act, 1894, and any other Act of Parliament affecting the premises, and of the Greenwich District Board of Works, and of any other Inxly having for tlie time being jurisdiction over the premises. The London Building Act, 1894, did not come into operation until January 1, 1895, and the proposed buildings would have satisfied the requirements of the Metropolitan Building Acts in force. The district surveyor served upon the l)uil(ler a notice, under § 150 of the London Building Act, 1894, objecting to the proposed houses, plans of which had been furnished to the district surveyor. On appeal, the magistrate held, that the building agreement was a contract witliin the meaning of § 212 of the Act, and disallowed tlie surveyor's objections. The Court {Cave and Wright, JJ) held, on a case stated, that the exemption in § 212 of the London Building Act, 1894, applies not merely to buildings to be erected under a contract witli a builder according to definite plans, &c., but also to buildings to be erected under a building agreement, the performance of which may extend over a period of years. TANNER v. OLDHAM. (1896) 1 Q. B. 60 ; 65 L. J. M. C. 10 ; 15 R. 603 ; 73 L. T. 404 ; 44 W. E. 03. EXTRA WORK Acquiesced in, but no Written Order. — A company entered into a contract with a firm of engineers to construct a large iron building 170 EXTRA WORK at a fixed sum. The contract provided that no deviations there- from, or additions thereto, should be made without the written order of the engineer employed by the company to supervise the works ; and no allegation by the contractors of knowledge of, or acquiescence in, such deviations or additions, on the part of the company, shall be accepted or available as equivalent to the engineer's certificate, or in any way superseding the necessity of such certificate as the sole warrant fur such deviations or additions. During the progress of the works the contractors were allowed to erect girders of a lieavier weight, as they stated tliat it was impossil)le to cast girders of the specified weight, and the actual weights were entered in the superintending engineer's certificates from time to time authorizing the payment of instalments on foot of the contract. On the completion of the work, the contractors claimed a sum in excess of the contract price for the extra weight of metal supplied. The Second Division of the Court of Session {Lord Gifford dissenting) recalled tlie decision of the Lord Ordinary allowing the claim. The company appealed, and the House of Lords {Lords Cairns, Hatherley, Llaclhurn, and Gordon) held, that the engineer's certificates were not written orders, and the claim was, therefore, excluded by the contract. THARSIS SULPHUR c& COPPER CO. v. McELROY & SONS. (1878) 3 App. Cas. 1040 ; 5 Ct. of Sess. Gas (4th Ser.) E. 161. Arbitration Clause does not apply to. — A builder contracted to erect a jail, and the contract provided " that no alterations should he made without the written authority of the architect, hy whom the value of such alterations should he ascertained, and that no allowance for alterations should he made unless the value of the same was ascertained at the time the work loas done, and entered in a hook, such entry to he suhmitted to, and approved hy, the architect." No payments on account were to be made unless on production of the architect's certificate, to be delivered every fourteen days, and when 90 per cent, of the value had l)een received, no furtlier payments were to be made to the builder until three months after the arcliitect should have certified the completion of the works. Any disputes with the builder arising out of the contract should be settled by the architect, whose decision was to be final. In an action by the plaintiff for the balance due on the contract and extras, upon a case stated by an arbitrator to whom the action had l)een referred, the Court {Jcrvis, C.J., Cresswell, CrowcUr, and. Willes, JJ.) held, that tlie architect's certificate of final EXTRA WORK 171 completion was sufficient without stating the amount of the Ijalance due, and that the arbitration clause did not apply to the claim for extras, but only to the mode of carrying on the work contracted for. PASHBY V. BIRMINGHAM CORPORATION. (1856) 18 C. B. 2. Architect's Certificate Conclusive even if no Written Order. — Tlie plaintill's contracted to carry out for the defendants certain works, and any additional works found necessary. Such extra works were only to be done on the written order of the engineer, and were to be paid for at the contract rates, and their value was to be fixed by the engineer, whose decision was final. Accounts were to be furnished monthly, and the defendants were not to be bound to pay for any work done unless on the production of the engineer's certificate, which was to be final. In an action for the cost of certain extra works certified for by the engineers, the Court held, that the defendants could not set up as defences that the extra works were not ordered in writing, and that no account had been sent in as required by the contract. CONNOR V. BELFAST WATER COMMISSIONERS. (1871) 5 Jr. L. E. C. L. 55. Architect's Certificate Final. — In a building contract it was provided that in the case of all extras exceeding £10 in value, the order or plan was to be signed by the architect, and countersigned liy two members of the building committee, and the decision of the architect in all matters was to be final. In an action by the builder to recover the balance of his contract and extras certified by the architect, A. L. Smith, J., held, that the provision in the contract as to extras did not limit the architect's power of decision, and that, as he had given his certificate, the defendants could not reopen the certificate either to correct an alleged mistake of the architect, or to eliminate extras, the order for whicli was in^egular. LAP THORN E v. ST. AUBYN. (1885) 1 T. L. E. 279 ; 1 Cab. & E. 486. Caused by Defective Plans. — A clergyman invited tenders by public advertisement for the erection of a church according to plans, &c., supplied by the architect to such builders as applied for them with a view to submitting a tender. Owing to inaccu- racies in the plans and bills of quantities, the builder, whose tender was accepted, contmcted to do the work for £1998, whereas it really cost him £?>600, including extras, which, however, were 172 KXTRA WORK not ordei-ed iu writing by the architect as provided hy the contract. The builder had been accustomed to erect pul)lic-houses, Ijut had never built a church before. In an action by the builder against the clergyman for £1483 for extra work, the plaintiffs counsel contended that the inaccuracies in the quantities and plans amounted t(j a fraud on the plaintiff. Blachhurn, J., held, that there was no e\idence of fraud to go to the jury, and that the contract was binding as to extras, and that there was no evidence of waiver, and he nonsuited the plaintiff. SHERIIEN v. HARBISON. (1860) Times, February 8 ; H. B. 0. 70. -Causing Delay. — The terms of a building contract provided that the architect should have power to extend the time for com- pletion of tlie contract in proportion to any extra works and alterations which might be ordered by him. Additions, &c., ordered l)y the architect delayed completion beyond the time- limit, but the architect did not extend the time. In an action by the Ijuilder for the balance of contract, A. L. Smith, J., held, lliat the contractor was bound to complete tlie contract within the time-limit, and was, therefore, lialde to pay the stipulated damages for non-completion of the work. TEJF v. NEWBOLD-ON'AVON SCHOOL BOABD. (1884) 1 Cab. & E. 260. Excess of Items in Bill of Quantities. — A Ijuilding contract provided that alterations and additions were not to avoid the contract, but were to be paid for at prices to be fixed by the employer's surveyor. The tender was based on quantities calcu- lated by the surveyor, and the specification referred to them. In an action brought by the builder for the balance of his contract, Hill, J., held, that having completed the work and claimed pay- ment under the contract, the plaintiff could not claim for work in excess of the quantities on which it was based, nor for any additions or alterations beyond the amount allowed by the sur- veyor, and that the tender required a stamp as a minute or memorandum of the agreement. COKBB v. YOUNG. (18G0) 2 F. & F. 98. -Paid for if Written Order produced. — A building contract pro- vided tliat no extras should Ije paid for unless ordered in writing, and weekly bills f(jr tlie same were furnished. The certificate of the arcliitect showing the final balance due was conclusive EXTRA WORK 173 evidence LliaL the wmk luul liccu dul}' cninpluled. CeiUiiu extras were ordered, but nut in writing, and no weekly Ijills were furnished. In an action to recover the vahie of the same, Mathcio, J., held, that the fact that the architect's certificate for the final ])alance awarded a certain sum in respect oi extras, did not entitle the huilder to recover l>eyiind the certilicd sum f(ir extras in rcsj)ect of wliicli written orders had n<»t heen given, nor weekly l)ills deli^'ered. BRUNSDON V. STAINES LOCAL BOAIID. (1884) 1 Cab. & E. 272. Parol Orders. — A huilder contracted to execute certain works according to plans and specification, to the satisfaction of the defendants' surveyor. The contract provided that tlie builder was to execute no extra works, or additions without the written order of the surveyor. The works were to be executed according to the plans, and all further instructions were to be given by the surveyor " i)i icritimj or otherwise." In an action by the builder on the contract, and for extras orally ordered l)y the defendants, Hill, J., refused to permit the plaintiff to give evidence of the parol orders given by the defendants fur increased excavations. FRANKLIN v. DARKE. (1862) 6 L. T. 271 ; 3 F. & F. 65. Set-off of Penalty for Delay. — The plaintiff entered into a contract to repair the defendant's warehouse for a certain sum. It was provided that if the work was not completed within three months the plaintiff should forfeit to the defendant a sum of £,o for every week's delay beyond the stipulated time ; such sum to be deducted from the money found to be due to the plaintiff on the completion of the work. In an action brouglit by the plaintiff in respect of extra work, Parke, B., held, that the defendant was entitled, after having paid the contract price, to set-off tlie penalty against the extra work ; and that he had a double remedy either to deduct or recover it. DUCKWORTH v. ALISON. (1836) 1 M. & W. 412; 2 Gale 11; 11 Tyr. & G. 742; 5 L. J. Ex. 171. Sub- contractor. — A contractor employ c^l a masun to du certain work as extras to the contract. In an action for work and materials by the mason against the owner, the plaintiff stated that the work in question was extra to the contractor's contract, and that he had agreed with the contmctor to do the work. 174 EXTRA WORK Uii pi'uducLiou of Ihc conlruclur's cuulract, Lhc jury I'uuud that there was a distinct contract between the mason and tlie owner for the work sued on, and GhanncU, B., entered judgment f(ir the plaintiff. ECGLES V. SOUTHERN. (1861) 3 F. & F. 142. NoTK. — A sub-contractor cannot sue t!io employer for work williiu the contract {Bramah v. Ahingdon, 15 East, G2). Surveyor's Certificate Conclusive. — A builder contracted to erect certain villas and premises for an agreed sum in accord- ance with drawings, specifications, and conditions. A clause in the contract provided that the builder should Ije paid for all extras at the price fixed by the building owner's surveyor, and that the price of all deductions, in respect of work not done, should also be fixed by the surveyor. In accordance witli the contract, the said surveyor, in his final certificate, certified for a sum which included an amount stated to be in respect of extras and additions. The building owner contended that certain of the extras were not extras to the contract, and the builder brought an action against the building owner to recover the amount certified by the surveyor as due to the builder. The action was referred to an arbitrator, who stated a special case for the opinion of the Queen's Bench, as to whether such certificate was binding and conclusive, in respect of the amount due from the defendant for extras and additions, and Cave, J., held, that the surveyor had power impliedly, to determine what were extras under the contract, and consequently his certificate awarding a certain amount to be due for extras was conclusive. IIICHAKDS V. MAY. (1883) 10 Q. B. D. 400 ; 52 L. J. Q. B. 272 ; 31 W. B. 708. Verbally ordered. — A builder agreed to execute certain repairs to the chapels and premises of a burial board, and the contract was duly sealed. During tlic progress of the works the surveyor for the board verbally ordered certain small works not included in the contract. In an action by the builder for the price of the latter, the County Court judge found for the plaintiff. On appeal, the Court {Fry, L.J. ; Mcdhciv, J., dissenting) held, that the board was not liable, as they were bound to contract in strict accordance with § 31 of the ^c< 15 c& 16 Vict c. 85. STEVENS V. HOUNSLOW BURIAL BOARD. (1889) 54 J. P. 309 ; 61 L. T. 839 ; 38 W. E. 236. FLOORS 175 FLOORS. Strength of. — I'laus for tlio rcljuildiiiji; of a warcliuusc destroyed l)y fire were lodged with a local authority l)y the buildiug owner. Two days previously by-laws dealing with the construction of the floors of buildings had been allowed by the Local Government Board, and therefore came then into force. The plans sub- mitted were duly approved, and the buildiug proceeded with. Subsequently complaint was made that the floors did not con- form to the new by-laws. The stipendiary magistrate dismissed the summons. On a case stated, the Court {Lord Alverstone, G.J., Wills and Ckannell, JJ.) held, that where the by-laws of a local authority specify the strength of joists for certain kinds of floors, and do not specify fur all i)ossible modes of construction, beyond requiring the materials used to be suitable and of due strength, a floor constructed by timber joists with steel supports is governed by such general words, and not by the rules dealing with floors formed entirely of timber, and they affirmed the decision of the stipendiary. TOWERS V. BROWN. (1903) 2 L. G. li. 942. FORE-COURT. The respondents had erected a new building, the external wall of which was not less than 20 feet from the centre of a higliway used for vehicular traffic. Between the external wall and the highway a portion of what was formerly a garden was enclosed by a wall 13 feet distant from the centre of the highway. A portion t)f this wall was left standing, and upon it railings were fixed. Notice to set back the old boundary wall was given to the respondents by the appellants, as no consent had been given by the appellants to the erection of the new building within any space between the external wall and the highway. The magistrate dismissed the summons. Wright, J., held, on a case stated, that § 14 of the London Building Act, 1894, does not empower the London County Council to give notice requiring the owner or occupier of land, upon part of which he has erected a new building, to set back an old lioundary wall, so that such wall shall not be less than 20 feet, the prescribed distance, from the centre of the highway. LONDON COUNTY COUNCLL v. AYLESBURY DAIRY CO., LTD. (1898) 61 J. P. 759; 1 Q. B. 106; 67 L. J. Q. B. 24; 77 L. T. 440. 176 FORE-COURT A builder was summoned l»y the ai)pellants for failing to comply with a notice to set back the boundary of a fore-court left in front of a house built by him, to a distance not less than the prescril)ed distance from the centre of the roadway. The road was stated to have been a highway when the Metropolis Manage- ment and Building Acts Amendment Act, 1878, was passed. The respondent contended that the house fronted to another road, and, therefore, the space complained of was not a fore-court, and that the road in question was a highway at the time the Act was passed, and a " street existing " within the meaning of tlie proviso in § 6 of the Act of 1878. The magistrate dismissed the summons without inquiring whether the street was a " street " at the date wlion tlie Act was passed. On appeal, the Court {Cacc and Wills, JJ.) sent the case back for the magistrate to decide the latter question. LONDON COUNTY COUNCIL v. MITCHELL. (1894) G3 L. J. M. C. 104; 10 E. 308. § 98 of the Metropolis Management Amendment Act, 1862, provides, that "no existing road, passage, or way, being of a less width than 40 feet, shall be hereafter formed or laid out for building as a street for the purposes of carnage traffic, unless such road, passage, or way be widened to the full width of 40 feet," the measurement to be taken half on either side, from the centre or crown of the roadway, to the external wall or front of the house, or to the fence or boundary of the fore-court, if any. The magistrate dismissed a summons brought by the Metropolitan Board of Works in respect of a contravention of the above section. On appeal, the Court (Willes and Bylcs, JJ.) held, that the pro- vision did not apply where the building al)utted in the rear upon an old lane of less width tban 40 feet, and affirmed that decision. METROPOLITAN BOARD OF WORKS v. COX. (1865) 19 C. V,. (N.s.) 445. FORFEITURE Contract not Completed by Fixed Date. — The lessee of certain land covenanted on pain of forfeiture to erect thereon, by a fixed date, certain houses. The houses were not erected by that date, and the lessors served upon the lessee notice of the breach, but the notice did not require the lessee to remedy the breach. The lessee thereupon gave up possession in an undefended action for ejectment. The plaintiff conqmny, who had advanced large sums to the lessee, and were equitable mortgagees, went into liquidation, FOKFEITURK 1 *J'J and tlie liquidator applied for relief against the forfeiture under § 14 (2) of tlie Conveyancing and Lavj of Property Ad, 1881. Bacon, V.C., liehl, tliat the lessor was not entitled to the forfeiture until ho ]ku1 served notice on tlic lessee requiring liim to remedy the breach of covenant and make compensation under § 14 (I) of the Act, and he granted relief. NORTH LONDON LAND CO. v. JACQUES. (1884) 48 J. P. 405 ; 32 W. E. 283 ; 49 L. T. G59. FOUNDATIONS Difficult Soil. — A builder contracted witli a corporation to execute certain building works according to plans and specifications prepared by the defendants. Having taken a superficial view of the proposed site of tlie works, and witliout making any borings or excavations to ascertain the nature of tlie ground and the foundations that would be necessary, he submitted a tender which formed the basis of the contract. Extra works were only to be paid for if executed on the written order of the architect or engineer, whose decision on all matters of dispute or misunder- standing arising out of the contract was to be final. During tlie l)rogress of the works the contractor was obliged to incur lart^e extra expenditure owing to the nature of the soil, which involved more costly foundations than the builder anticipated. No extra works in respect of the foundations were ordered by the architect. In an action by the builder to recover the balance of the contract and the cost of the extra foundations, it was proved that the engineer-in-chief had lent the contractor a book dealing with the nature of the soil of the site, and had warned him in respect thereof, but no borings had been made by the corporation. Mathew, J., found for the defendants. Tiie plaintiff appealed, and the Court (Lord Eshcr, M.B., Bowcn and Kay, L.JJ.) held, that in the absence of a specific guarantee, or definite representation, as to the nature of the soil, the contractor was not entitled to abandon the contract on discovering the nature of the soil, nor liecause the engineer declined to give written orders entitling to extra payment in consequence of difficulties in executing tlie works which had not been foreseen by the contractor, and dismissed the appeal. BOTTOMS V. YOrJC CORPOBATION. (1892) II. B. C. 147. Filled in with Noxious Matter. — The respondent, a builder, had begun, after notice to the local authority, to erect certain M.B.c. N 178 FOUNDATIONS houses under a l)uilding agreement upon land wliich was formerly part of an old private unconsecrated cemetery, and had been closed by Order in Council. The surface had been raised by depositing thereon l)uilder's rubbish, varying from 1 to 4 feet deep. The district surveyor warned the respondent that he would require him, in accordance with the by-laws, to remove any objectionable matter met with in sinking the foundations, and that he would take proceedings if any bodies were interfered with. The by-laws were made under the Metropolis Management and Building Acts Amendment Act, 1878, § 16, with respect to founda- tion of houses, &c., and the sites of houses, &c., and the mode in which such should be formed, excavated, filled up, &c. The term "site" was defined by § 14 to mean "the whole space to be occupied by such houses, &c., between the level of the bottom of the foundations and the level of the base of the walls." The builder was summoned for commencing to build on a site which had been filled up with materials impregnated with animal matter — to wit, dead human bodies — without liaving removed the said animal matter, in l)reach of a certain l)y-law. The magistrate dismissed the summons, and the local authority appealed. The Court (Grove and HawJdns, JJ.) held, that the meaning of the word " site " in the by-law was governed by the interpretation of that word in the Act, so that the 1)y-law did not authorize the Metropolitan Board of Works to direct the removal of fsecal, animal, or vegetable matter in the soil below the level of the bottom of the foundations. BLASHILL V. CHAMBEES. (1884) 49 J. P. 388 ; 14 Q. B. D. 479 ; 53 L. T. 38. FRAUD Contractor's. — A corporation sued their contractor for damages for bad and fraudulent execution of the works. The full amount of the contract had l)een paid to him, on the certificates of the engineer, some of which liad been obtained by fraud. Judgment was given against the contractor for £7000, and subsequently against his sureties, who appealed. The Court {Lord Usher, M.B., Bowen and A. L. Smith, L.J J.) held, that the sureties could not set up a defence founded on the fraud of the principal tliey guaranteed, and dismissed the appeal. KINGSTON-ON-HULL CORPORATION v. TURNER. (1892) 8 T. L. B. 672. Contractor's. — A builder contracted with the London School Board to erect certain school-houses, The work was completed FRAUD 179 and certified for, and the builder was duly paid the balance of the contract. Subsequently the School Board brought an action against the builder, as provided for in the Ijuilding contract, on the grounds of fraud in executing the contract, and wilfully deviating from the plans and specifications in liis own interest. By consent, the action was referred by Denman, J., to an architect for investigation and report. On reading the report by tlie architect, Denman, J., found for the defendant, and held, that to prove breach of a condition as to recovery by the building owner for fraud or wilful deviation from the terms of a building contract, it is necessary to sliow tliat deliberate and substantial variations have been made with the object of benefiting the contractor or saving his pocket. LONDON SCHOOL BOARD v. JOHNSON. (1891) H. B. C. 191. Contractor's. — A builder contracted to erect a school-house for the London School Board in accordance with plans, specifica- tion, and conditions. By a clause in the contract no certificate, final or otherwise, was to relieve the builder from liability for fraud, default, or wilful deviation, until a period of four years from the date of completion had elapsed. The School Board brought, within four years, an action against the builder for damages, and alleged fraud, default, and wilful deviation from the plan and specification by the builder. The jury found on the facts for the plaintiffs, and assessed the damages at £2141, and Day, J., entered judgment for that amount, LONDON SCHOOL BOARD v. WALL. (1890) H. B. C. 36. GARDEN WALL The owner of a building estate conveyed to the plaintiff a plot of land, and covenanted tliat no buildings except dwelling- houses, to cost at least £200 each, should be erected on the opposite side of the road to the said land. Tln-ee years later the defendant purchased from the same vendor the land opposite to that of the plaintiff, and threw it into a pleasure-ground, building a wall varying in height from 8 feet 6 inches to 11 feet, and also a vinery. In an action for a mandatory injunction, James, V.C, held, that the building of the wall to the heiglit of 11 feet, and the erection of the ^•inery, were breaclies of the covenant; that the building of the wall up to 8 feet G inches was not a breach of covenant ; and that damages instead of a 180 GAKDEN WALL mandatory injunction were adequate, in the circumstances of the case. BOWES V. LAW. (1870) L. Pt. 9 Eq. 636 ; 39 L. J. Ch. 483 ; 22 L. T. 267; 18 W. E. 640. GENERAL LINE OF BUILDING Advertising Station. — The owners of a dwelling-house, stand- ing back 38 feet from tlie footpath, and in front of which was a fore-court bounded by a dwarf brick wall 2 to 3 feet high, 9 inches thick, and surmounted by a stone coping and iron railings 6 feet 6 inches in height, removed the wall, and built upon its footings a wall 11 feet in height and 14 inches thick. The new wall was to serve the ' double purpose of a boundary wall to the fore-court and an advertising station. The whole of the wall was certified to be in front of the general line of buildings, and was erected without the consent of the London County Council. The owners were summoned for unlawfully erecting a structure beyond the general line of buildings without the consent of the London County Council, under § 75 of the Metropolis Local Management, &c., Act, 1862. The magistrate ordered the demolition of the wall. The Court {Daij and Wright, J J.) held, on a case stated, that the original dwarf wall was not a " building structure or erection " within the meaning of § 75, and that so long as it existed the site on which it stood was to be regarded as vacant land for the purposes of the section; but that the substituted wall was a " building, structure, or erection," within the meaning of the section, and that there was jurisdiction to order its demolition ((1895) 1 Q. B. 915). The owners appealed. The Court {Lindlcy, Lopes, and Righy, L.JJ.) affirmed the judgment of tlie Divisional Court, and also held, that the issuing of the architect's certificate of the general line of buildings was not a condition precedent to taking out the summons, and that as the order was made after the certificate the order was valid. LAVY Y. LONDON COUNTY COUNCIL. (1895) 59 J. P. 630 ; 2 Q. B. 577; 64 L. J. M. C. 262 ; 14 R. 634 ; 78 L. T. 106 ; 43 W. E. 677. Alterations. — The owner of a brick house in a certain street gave notice to the local authority of his intention to effect certain structural alterations thereto, and he obtained leave to erect a hoarding " during alterations of shop front." Negotiations then GENERAL LINE OF BUrLDTNG 18l took place as to a proposed new line of frontage, but wiLlioiit result. Su1)sequently the owner had the front wall of the liouso rcnKJved from the first floor down to the ground floor level, leaving the side walls and the front wall of the basement standing; and the upper walls wore propped up with timber supports, for which brickwork and iron girders were sul)stituted on February 17, 1893. On Marcli 1, 1893, the house having been taken down in order to be rebuilt witliin the meaning of § 155 of the Public Health Act, 1875, the local authority, by resolution in due form, prescrilied under that section a building line, 10 feet further back from the street than the old frontage, and notice of such resolution was duly served upon the owner. Some further negotiations having failed, the local authority brought an action in the name of the Attorney-General against the owner to restrain him from building beyond this line. Kchewich, J., held, that the house had been substantially taken down, and the powers of § 155 arose, l)ut that as the local authority had not prescribed the new line in time, they could not prevent the defendant from maintaining the l)uilding he had erected. The local authority appealed, and the Court (Lindlcij, Lopes, and A. L. Smith, L.JJ.) held, that inasmuch as a substantial part of the house and of its front wall was left standing, neither the house nor the front thereof had been taken down within the meaning of § 155, and, therefore, the power to fix a building line had never arisen. ATTORNEY-GENEBAL v. HATCH. (1893) 57 J. P. 825; 3 Cli. 36; 62 L. J. Ch. 857; 2 E. 533 ; 69 L. T. 469. Alterations. — The owners of a public-house gave orders to a builder to remove the sashes of one of the windows and alter them. The builder during the work substituted l)rickwork for the stone sill of the window, without the authority or knowledge of the owners. Tlie latter were summoned by the local authority for having taken down part of the front or external wall of a house to be rebuilt or repaired, and not having rebuilt it in accordance with the provisions of the local Act ; and the justices convicted him. The Recorder quashed the conviction, subject to a case. The Court {Lord Alvcrstoiie, C.J., Wills and Channell, J J.) affirmed the decision of the Recc^der ; the sill, having been removed without the knowledge of the owners, had not been " taken down to be rebuilt and repaired." YABBICOM V. BRISTOL BREWERY. (1903) 67 J. P. 261 ; 1 L. G. E. 477. 182 GEXKIIAL LINK OF BUILDING Areas in Front. — The owner of a field iu a cerlaiu parish oljUiiiied the ai)[)roval vf the local hoard of a plan, suhmitted Ijy liini, for laying out tlie field in streets 30 feet wide, and parallel to each other, for huilding purposes. He was entitled to erect houses thereon with tlicir front walls set forward to the lines of the streets shown on the plan, hut in one street he did not do so, hut erected houses set hack some feet from the road, having areas in front. The owner of a frontage on the adjoining road began to build six shops, the end one of which abutted on the street last mentioned, and was carried forward to the line of the street, and, therefore, further forward than those houses already built with the areas iu front. The frontage-owner was summoned and convicted under 38 & 39 Vict. c. 55, § 156, which makes it necessary to obtain the written consent of an urban authority in order to bring forward any house or building forming part of a street beyond the front wall of the building on either side thereof. On appeal, the Court {Mathew and A. L. Smith, JJ.) held, that the words " house or huilding " do not include new buildings in course of erection on land never before built upon. WILLIAMS V. WALLASEY LOCAL BOARD. (1886) 50 J. P. 582 ; 16 Q. B. D. 718 ; 55 L. J. M. C. 133 ; 5oL. T. 27; 34 W. E. 517. Bow Window. — The owner of certain premises built a bow window thereto beyond the general line of buildings, contrary t(j the provisions of a local improvement Act. The window was built of fireproof material and did not appreciably interfere with the access of light and air. On summons he was convicted. The Court {Lord Campbell, C.J., and Wightman, J.) quashed tlie con- viction and held, that although this bow window was contrary to the local Act, it was allowed by the Building Act, 14 Geo. III. c. 78, and the two provisions being inconsistent with each other the latter amounts to a repeal of the local Act. R V. FBATT. (1855) 3 C. L. R. 826. Bow Window. — The owner of certain premises erected in August, 1869, a bay window, without the consent in writing of the Metropolitan Board of Works, projecting beyond the general line of buildings in the street, the distance of such line of buildings nut exceeding 50 feet from the highway. The vestry sunmioned the owner under § 75 of the Metropolis Local Management, &c., Act, 1862, on Octoljer 21, 1869. The certificate of the superintending architect of the Metropolitan Board of Works deciding the general GENERAr. [JNE OF IJUILIUXG 183 line of liiiililiii<,'s was given on Octolicr 5, 1SG9. The niagistniLc considered that he was l^ound l)y tlic certificate of the super- intending arcliitect and convicted the owner, wlio appealed. Tlie Court {Bovilly C.J., Willcs, Montufjnc Smith, and Brdt, JJ.) held, that the superintending architect's certificate was not al)so- lutely conclusive, and that the magistrate is entitled to judge for himself whetlier the line fixed by such certificate is in fact the general line of buildings in the street. SIMPSON V. SMITH. (1871) L. K. 6 C. P. 87 ; 40 L. J. M. C. 89 ; 24 L. T. 100 ; 19 W. II. 355. -A Building in Two Streets.— A number of cottages stood 8 feet ))ack from a certain road, the said 8 feet belonging to the cottages, and forming no part of the road or footway. A plot of building land, 64 feet in length, lay between the end cottage and a corner plot owned l)y tlie appellant. The road was a cul de sac, and on the other side of the cottages was only pasture land. The appellant erected on his plot a house aln\tting on the road, Ijut with main entrance on the adjoining road. On an information under § 3 of the PuUic Health '{Buildings in Streets) Act, 1888, the justices held, that the building was in both roads, and that the cottages were buildings on one side of the road within the mean- ing of the section, and convicted the appellant. On a case stated, the Court {Mathciu and Smith, JJ.) held, that it was a question of fact for the justices whether or not the house was in both roads, and whether or not the cottages were sufficiently near to the house to Ije on one side thereof within the meaning of the Act, and affi^rmed the conviction. WARBEN V. MUSTAIW. (1891) 56 J. P. 502 ; 61 L. J. M. C. 18 ; 66 L. T. 26. Church is a House. — A corporation had power under their Act to prescribe the building line of a certain liorough, and it was provided that no new street was to l)e of less widtli than 40 feet. The perpetual curate of a certain parish began to erect a perma- nent church on the site of a temporary church, and the corporation gave him notice of a resolution they had passed that the road on wliich the church was abutting must be not less than 40 feet wide. They tlien prescribed a building line which came within the limits of the church as designed. Malins, V.C., held, on a motion for an injunction, that the clnirch was a house, and the curate, in whom the freehold of tlie site was vested under 43 Geo. III. c. 108, an " owner " within the meaning of the corporation's Act, but that 184 GENERAL LINE OF BUILDING the motion was too late, and the curate could not be restrained from erecting the church in the manner in which it had been commenced. FOLKESTONE CORPOBATION \. WOOBWABD. (1872) L. It. 15 Eq. 159 ; 42 L. J. Ch. 782 ; 27 L. T. 574 ; 21 W. K. 97. Conservatory. — In August, 1869, the plaintiff contracted with a builder to erect a conservatory of wood and glass upon the portico of his house at the corner of a street, and projecting 4 feet beyond the main wall. The parapet wall had to be pulled down, and the framework was completed by August 24, 1869. The authority of the Metropolitan Board of Works was not previously olitained. On January 14, 1870, the defendants informed the builder that proceedings would be taken unless the projection was removed, which the architect of the Board of Works certi- fied was beyond the general line of buildings. On March 2 the necessary certificate was obtained from the superintending architect, and on IMarch 4 a summons was taken out and served at the builder's place of business, and thence conveyed to the plaintiff. After some adjournments the summons was heard on April 22, and the demolition of the structure was ordered. On motion to restrain the defendants from pulling down the structure, Maliwi, V.C, held, that the summons was good against the builder if issued while the building complained of is being erected ; after completion the summons should be against the owner or occupier. The six months limited by § 107 of the Metropolis Local Management Acts Amendment Act, 1862, for the commencement of any proceedings for penalties under the Act, begins to run from the time when the structure is discovered to be so far advanced as to show the full extent of tlie projection complained of, and not from the completion of the building. B HUT TON Y. VESTRY OF ST. GEORGE'S, HANOVER SQUARE. (1871) L. R. 13 E(i. 339 ; 41 L. J. Ch. 134 ; 25 L. T. 552 ; 20 W. R. 84. Conservatory. — Tlie Metropolis Local Management, &c., Act, 1862, § 75, provides that "no building, structure, or erection shall, w^ithout the consent in writing of the Metropolitan Board of Works, be erected beyond the general line of building in any street, &c., in which the same is situated, such general line of building to Ije decided by the superintending architect . . . for the time beins::." Tlie owner of a certain house erected a small GENERAL LINE OF BUILDING 185 iron and glass consorvaldry, })rnjecting lu-yoiid tlic wall ol liis liousc but not beyond his shop front. The magistrate dismissed a siimmons taken out against the owner under § 75 of the Act, deciding that the conservatory was not an " erection " within the Act, and that it was not beyond the general line of building. On appeal, the Court (iJrle, C.J., Wlllcs, Bylcs, and KecUing, JJ.) affirmed this decision. n. V. ^PAFdlOW. (1864) 16 C. B. (N.s.) 209; 33 L. J. M. C. 118; lU Jur. 771; lOL. T. 504; 12 W. E. 832. Corner House. — The owners of a plot of land, forming a corner between two roads, began to erect thereon four shops and dwelling- houses. The superintending architect of the respondents issued his certificate, which stated explicitly the situation of one of the liouses objected to by him as being in front of the building line. The owners appealed, and the certificate was affrmcd, whereupon the respondents obtained an order from a magistrate for the demolition of so much of the building as was beyond the line of buildings. The Court {Wills and Wright, JJ), on a case stated, affirmed the magistrate's order, and the owners appealed. The Court (Lindlcg, Tropes, and Bigby, L.J J), in a considered judgment, held, that when an application is made to a magistrate under § 75 (1) of the Mctrcypolis Local Managcraoit, &e.. Act, 1862, for an order to demolish a building, on the ground that it is beyond the line decided by the superintending architect to be the line of building of the street in which the building is situate, the question whether the building is in that particular street, of which the line has been so laid down, is to be decided by the superintending architect's certificate, and not l)y the magistrate to wliom the application is made. ALLEN V. LONDON COUNTY COUNCIL. (1895) 59 J. P. 644; 2 Q. B. 587; 64 L. J. M. C. 228; 14 E. 749 ; 73 L. T. 101 ; 43 W. E. 674. Dedication. — The plaintiff l)uilt on a site of a mansion, but which was vacant since 1880, fronting to a street, a row of houses further forward than the line of the adjoining houses. The superintending architect of the London County Council made a certificate defining the line of building to be the fronts of the adjoining houses, and the vestry served a notice upon the plaintiff requiring him to put his liuildings back to the line certified. A part of the land on which the plaintiff had begun to build, extending 18(3 GENERAL LINE OF BUILDING lip to the roadway, was part of an estate ; upon another part of wliicli a liuildiug had Ijeen erected in a line with the adjoining houses. It was contended on belialf of the plaintiff that the ow-ner never intended to give up the right to use that part of the estate as a site for l)uilding, or to devote it as an open space for ever. North, J., held, that the huilding proposed to be erected was a new 1)uilding, and not a restoration of the old building so as to be subject to the provisions of § 75 of the Metropolis Local Manage- ment, &c., Act, 1862. WORLEY V. ST. MARY ABBOTTS {KENSINGTON) VESTRY. (1892) 2 Ch. 404; 61 L. J. Ch. 601; 66 L. T. 747; 40 W. R. 566. Erroneous grounds of Objection. — The surveyor to Wimbledon Urban District Council published a notice to architects, &c., in- timating that all building notices and plans must Ijc deposited not later than noon on the second and last Thursdays in each month, to admit of examination by him before submission to the building committee. A copy of this notice was sent to the architects of the defendants who proposed to erect houses in a certain street in the district. They deposited plans of a private house on August 28, 1903, and gave notice that they would commence to build on August 31, 1903. The plans showed that the l)illiard- room w^ould project 6 feet 3 inches beyond the line of the main wall of the adjoining house. On August 31 building was started, and subsequently the plans were amended to comply with certain by-laws of the council. On September 15 the building committee disapproved of the plans, on the ground that they infringed the building line. On Septendjer 24 the Council notified the defendants that the plans were disapproved, giving, in error, as the reason, that they did not comply with the by-laws. On September 28 the defendants w^ere informed through their architect that tlie real gi'ound of disapproval was that the plans infringed § 3 of tlie Public Health (Buildings in Streets) Act, 1888. By this date the walls of the billiard-room were 5 feet above gi'ound, and the defendants continued to build. Formal notice of objection was served under § 3 of the Act of 1888 on November 18, when the walls were built and the roof-timbers were in position. On summons the magistrates convicted and fined the defendants £20 and costs, which were paid. The plaintiffs then claimed a mandatory injunction, and Farwcll, •/., held, that a penalty under § 3 of the Act of 1888 GENKKAL IJNK OF BLILDIXG 187 for iufriugciucut of tliu builJiug liuc is ikjI the ouly rciiiedy, ami tliat an injuucliuu at the suit of the Attorney-General on behalf of the public will lie to restrain such infringement, and in a proper case a mandatory order will be made, notwithstanding a previous conviction and fine for the offence. Mandatory injunction granted, and confined to the billiard-room. ATTORNEY -GENERAL v. WIMBLEDON HOUSE ESTATE CO., LTD. (1904) 68 J. P. 341 ; 2 Ch. 34; 73 L. J. Cli. 593 ; 91 L. T. 103 ; 20 T. L. R. 489 ; 2 L. O. 11. 828. -Fore-court. — The owner of a house applied to the Metropolitan Board of Works, under 25 & 26 Vict. c. 102, § 75, for permission to erect a building on his fore-court, the original line of buildings in the street being some distance from the roadway; and the application was granted on condition that the building was not erected higher than that next adjoining. The owner, however, did not take up the consent, and built higher than the building next adjoining, and was summoned by the local board for building beyond the general line of buildings, contrary to the conditions of the consent, in contravention of § 75 of the Act. The superintend- ing architect of the Board, on the day before the hearing, certified that the original line of building was the " general line of building." The magistrate ordered the demolition of so much of the building as was beyond the general line of building fixed, and the owner appealed. The Court {Gockbitrn, C.J., Mdlor and Skee, JJ.) affirmed the order. BAUMAN V. ST. PANCRAS VESTRY. (1867) L. E. 2 Q. B. 528 ; 36 L. J. M. C. 127 ; 13 W. If. 904. Fore-court. — The owner of certain premises commenced to erect buildings upon the fore-court thereof, thereby extending the frontage of the premises towards the road. The superintentl- ing architect of the Metropolitan Board of Works made a certificate, imder § 75 of the 3Ie(ropolis Local Management, &c., Act, 1862, deciding what was the general line of buildings. The premises above mentioned extended several feet beyond the general line fixed by the certificate. The owner was summoned for an offence against § 75 of the Act. The magistrate decided against a point of law, taken on behalf of the local authority, that he had no jurisdiction to review the decision of the superintending architect, and, having viewed the street, the magistrate decided that, in fact, the building complained of, although extending beyond the general line of buildings laid down, did not extend beyond the limits of 188 GENERAL LINE OF BUILDING certain other l)iiil(lmgs, viz., stable, cliapel, and shops in Uic same street : and, accordingly, he dismissed tlic summons. The local authority appealed to the Queen's Bench Division, and the Court {Lord Colcridtje, G.J., Sfqihrn and Mathrvi, J J.) held, that the architect's certificate was absolutely conclusive and l)inding on the magistrate, and they granted leave to appeal (13 Q. V>. D. 878). The owner appealed against this decision, which the Court of Appeal {Bowen and Fry, L.JJ., Brett, M.R., dissenting) offirmcd. The owner appealed, and the House of Lords {Earl of Sclborne, B.C., Lords Watson, Bramwcll, and FitzGerald) affirmed the judgment of the Court of Appeal. SPACEMAN Y. PLUM8TEAT) BOARD OF WORKS. (1885) 49 J. P. 420 ; 10 App. Cas. 229 ; 54 L. J. M. C. 81 ; 53L. T. 157; 33 W. 11. 661. Garden. — A railway company was authorized by its Act to carry out all the works necessary to constructing an underground line. They were also autliorized by a certain section in their Act to deviate laterally within certain limits shown upon the plans deposited. The company erected a part of one of their stations upon the site of two gardens beyond the general building line of, and fronting to, a certain street, within the limits of deviation, without the consent of the London County Council. On hearing of a summons under § 75 of the Metropolis Loeal 3Ianagcment, &c., Act, 1862, the magistrate held, inter alia, that it was not necessary for the purposes of the railway, that any part of the station building should have been erected beyond the general line of buildings, and he ordered the demolition of so much of the building as was beyond the general line of buildings. The defendants appealed, and the Court {A. L. Smith and Grantham, JJ.), on a case stated, gave judgment for the appellants. The London County Council appealed from this decision, and the Court {Lindlcy, Fry, and Lopes, L.JJ.) held, affirming the judgment of the Divisional Court, that the special Act empowered the company to build a station on any of the scheduled land within the limits of deviation, and that its effect was to repeal § 75 of the Metropolis Local Management, &c., Act, 1862, so far as it related to the station. CITY A SOUTH LONDON RAILWAY CO. v. LONDON COUNTY COUNCIL. (1891) 56 J. P. ; 2 Q. B. 513 ; 60 L. J. M. C. 149 ; 65 L. T. 362 ; 40 W. E. 166. Garden. — An indictment was laid l)y a local authority against a builder for erecting a building in a certain street several feet GENERAL LINE OF BUILDING 189 beyond tlie front walls of the adjoininf,' liouscs on cacli side. The defendant's house had a garden, Itetween the front wall and the street, 16 feet deep, and separated from the street by dwarf walls: and upon this garden he proposed to erect a shop. He oljtained permission to do so according to plans approved Ijy the local authority's surveyor, but in carrying out the work he brought the shop beyond the line agreed to by the surveyor. Eric, C.J., directed the jury on the facts to find the defendant guilty, and he stated a case for the Court of Crown Cases Eeserved, Tlie Court {Erie, C.J., Pollock, C.B., Martin, B., Blackburn and Mcllor, JJ.) held, that whether a house or building forms part of a "street," within the meaning of tlie Local Government Act Amendment Act, 1861, is a question of fact for the jury, and as the jury had not decided that point, the conviction was quashed. R. V. FULLFOBD. (18G4) L. & C. 403; 33 L. J. M. C. 122 ; 10 Jur. 522; 10 L. T. 346 ; 12 W. E. 715 ; 9 Cox C. C. 453. House on either side. — The owner of a plot submitted a plan showing a house which he proposed to build, set back but 6 feet from the road. The local authority had two weeks previously approved the plans of another house which it was proposed to build on the same side of the street, but which showed the house set back 12 feet from the road, and they refused to approve of the plans first mentioned. The owner whose plans had been approved began to build, and on April 29 the front main wall of his house was 5 inches above ground, but not up to the level of the road. On April 29 the first-named owner, notwithstanding that his plans had been rejected, began to build the front main wall of his house. On hearing a complaint made under § 3 of the Public Health {Buildings in Streets) Act, 1888, the magistrates dismissed the summons. The local authority appealed, and the Court {Fnj and Mathew, L.JJ.) held, that the respondent had not erected any part of a house beyond the front main wall of the house or building on either side thereof within the meaning of § 3 of the Act. BAVENSTHOBPE LOCAL BOARD v. IIIXCII- CLIFFE. (1889) 54 J. P. 421 ; 24 Q. B. D. 168; 59 L. J. M. C. 19 ; 61 L. T. 780. Knowledge of Infringement. — The London County Council, on October 28, 1891, summoned the i-espondent for erecting a house beyond the general line of building. The line had been certified on August 6, 1891. Notice of building was given by the 190 GEKKUAL LINE OF BUILDING respondent and plans duly deposited in the previous February, and tlie foundations were excavated within three months after. Notice to the district surveyor, however, was not given until April 1(S, three days after the brickwork had been commenced. On April 27 the first floor of the building had been erected, and no objection liad been made either by the district surveyor, the vestry, or the London County Council, until June, 1891, wlien the respondent was requested to attend at the offices of the latter. At that time the building was nearly finished. The time allowed for making complaint, by 11 & 12 Vict. c. 43, § 11, was six months from the date when the matter of complaint arose. The justices dismissed the summons, and the County Council appealed. The Court (A. L. Smith and Dcnman, J J.) held, that the justices should have convicted, as the sunnnons was in time. The respondent appealed, and the Court {Lindhy and Kay, L.JJ.) allowed the appeal, and reversed the judgment of the Divisional Court. LONDON COUNTY COUNCIL v. CROSS. (1891) 56 J. P. 550; 61 L. J. M. C. 160; 06 L. T. 731; (1892) W. N. 80 ; 8 T. L. E. 537. No continuous Line of Buildings. — The owner of a plot of land l)uilt thereon in 1893 a house near, but not abutting on, a certain street, and distant 240 yards north from the next house on the same side of the street, the latter having been erected in 1886. In 1894 he l)()ug]it a plot 70 feet deep on the same side to the north of the house which he had built the previous year, for the purpose of erecting cottages thereon. On the opposite side of the road a number of houses had been built close up to the road- way. The plan of the proposed cottages showed that they would stand nearer to the road than the owner's house, but there was no continuous line of building. On hearing mandamus to compel the local authority to pass the plans of the cottages, the Court (Matheiv and Kennedy, JJ.) held, in making the rule absolute, that the cottages need not be built in line witli the house erected by the owner in 1893, as in the circumstances there would be no erection of a house or building beyond the front main wall of tlie house or building on either side thereof in the same street. B. V. ORMESBY LOCAL BOARD. (1893) 43 W. E. 96. No Offence. — A builder was summoned by a local authority for bringing a house beyond the general line of buildings without their written authority, having neglected to comply with a notice to set the house back to the proper building line, contrary to § 3 of GENKKAL LINE OF BUILDING I'Ji the Fuhlic Health {Buildings in Streets) Aet, 1888. The justices were evenly divided, and dismissed the siiumioiis, as they thought they must have a majority to convict. Subsequently a second information was laid in terms the same as the first, but claiminf; penalties for a longer period. The justices convicted, and the builder appealed. The Court ( IFllls and Kennedy, J J.) held, that the first dismissal was good, and decided that the erection of the house was not an offence under § 3, and that the continuing of the house could not be an offence, and they quashed the conviction. KINNIS V. GBA VES. (1898) 67 L. J. Q. B. 583 ; 78 L. T. 502 ; 46 W. R. 480 ; 19 Cox C. C. 42. Notice of. — The plaintiff and the defendants, who derived title from the mortgagees of the plaintiff, were in possession of land purchased by the plaintiff from a Land Company in one lot, all the lots offered being subject to mutual covenants, inter alia, not to erect any buildings beyond a specified building line. The defendants took with notice of the restrictive covenants, but the mortgagor imposed no express restrictions upon the defendants as to the use of the land. The plaintiff brought an action for an injunction to restrain the defendants from erecting any buildint' within 15 feet of the roadway, except fences not higher than 6 feet. North, J., held, that there was no implied obligation, as between mortgagor and mortgagee, restricting the nser of the land, and that the mortgagor (the plaintiff) was not entitled to enforce the restrictive covenant as against the defendants. KING V. DICKESON. (1889) 40 Ch. D. 596; 58 L. J. Ch. 464; 60 L. T. 785; 37 W. R. 553. Objection delayed. — A building was erected in January, 1871, beyond the general line of buildings, and the fact did not come to the knowledge of the local vestry until the following December. In January, 1872, they applied to the superintending architect of the Metropolitan Board of Works to decide the general line of buildings, but did not obtain his decision until June, 1872. Tlie Metropolis Local Management, etc.. Act, 1862, provides that " no person shall be liable for the payment of any penalty or for- feiture under the recited Acts or that Act, for any offence made cognizablebeforea justice, unless the complaint . . . have been made before such justice within six months next after the commission or discovery of such offence." The vestry issued a summons for building beyond the general building line against the builder on 192 GENERAL LINE OF BUILDING Au'nist 29, 1872, and the magistrate held, that they were out of time, and dismissed the summons. On hearing a case stated, the Court {Keating and Honyman, J J.) held, that this limitation clause applies only in the case of pecuniary penalties or forfeitures, and not to offences under § 75. BERMONDSKY VESTRY v. JOHNSON. (1873) L. E. 8 C. r. 441 ; 42 L. J. M. C. 67 ; 28 L. T. 6G5 21 W. K. 626. -Person liable. — Blackpool Corporation laid an information ao-ainst the i-espondent under § 3 of the PuUic Health {Buildings in Streets) Act, 1888, charging that certain premises liad, without the written consent of the corporation, been erected or brought forward beyond the front main wall of tlie adjoining buildings in the same street, and that the respondent, after notice, did allow the offence to continue. The premises were erected by the respondent's predecessor in title, a builder, notwithstanding the fact that the plans which he had twice submitted for the corpora- tion's approval were rejected on each occasion. Subsequently the builder became bankrupt, and the ownership passed to the respondent. The justices dismissed the information. The Court {Lord Alverstone, C.J., Darling and Channell, JJ.), on a case stated, held, that the respondent had not committed an offence under § 3 of the Act, and dismissed the appeal. BLACKPOOL CORPORATION v. JOHNSON. (1902) 1 K. B. 646 ; 71 L. J. K. B. 485 ; 87 L. T. 28; 20 Cox C. C. 276. -Plans Approved. — The plaintiff agreed to grant a lease for a term of years of certain premises to the defendant, when the latter shoidd erect thereon a house according to plans, &c., to lie approved by the plaintiff, and according to any Acts of Parliament in force for the regulation of buildings, &c. The house projected 3 feet beyond that of the adjoining owner who, shortly after operations were begun, complained to the Board of Works. The latter gave the defendant notice that he must build in a line with the adjoining house, whereupon the defendant refused to proceed with the work. In an action on the contract to compel the defendant to proceed to erect a house, Stuart, V.C., held, that the defendant was bound to rebuild in conformity with the plan modified to meet statutory requirements. CUBITT V. SMITH. (1864) 11 L. T. 298; 10 Jur. 1123. GENEUAL LINE OF BUILDING 193 Pumping Station. — A waterworks coinpauy proposed to erect, under their statutory authority, a new stati(ju for pumping adjoining and abutting upon a certain road. The surveyor to the local board served upon the secretary to tlie company a notice intimating that if the building were erected it would infringe the building line of the road, and that in such an event proceedings by the local board would be taken against the company under § 3 of the Puhlic Health {Buildings in Streets) Act, 1888. The com- pany thereupon sought a declaration that tliey were entitled to build without the defendants' interference, and the defendants pleaded want of jurisdiction to grant the declaration souglit. Stirling, J., held, that there might l)e jurisdiction to make tlie declaration, but that it was limited to injunctions against apprehended trespass ; and that an injunction to restrain proceedings l)efore a magistrate ought only to be granted under very special circumstances, which in this case did not exist, and he dismissed the action. GRAND JUNCTION WATERWORKS CO. v. HAMP- TON URBAN DISTRICT COUNCIL. (1898) 62 J. P. 566 ; 2 Ch. 331 ; 67 L. J. Ch. 603 ; 78 L. T. 673 ; 46 W. E. 644. Rebuilding. — The owner of certain premises standing 50 feet back from the street, which he desired to rebuild, applied to the London County Council for permission to build to the line of certain existing buildings, one storey in height, which had been previously erected in the fore-court of the premises, but permission was refused. The owner then submitted plans showing the existing buildings to the district surveyor, who, under § 43 of the London Building Act, 1894, certified them to be correct. The council were asked by the owner to approve of the new buildings as deviations from the certified plan under § 43 (2) of the London Building Act, 1894, but they declined to entertain the application. The proposed buildings would be in advance of the general line of buildings, subsequently certified. The owner was served with a notice of objection to the proposed buildings, under § 150 of the Act, from which he appealed. The magistrate upheld the County Council, and on appeal the Court {A. L. Smith, Righij, and Collins, L.JJ.) affirmed the judgment of tlie Divisional Court {Ridley and Darling, JJ.) and held, that the owner was not entitled to erect the proposed buildings upon the fore-courts, beyond tlie general line of buildings, without the consent in writing of the County Council. SCOTT V. CARRITT. (1900)63 J. P. 772; 82 L. T. 67. M.B.C. 194 GENEEAL LINE OF BUILDING • Rebuilding. — The owner of a certain building which he was desirous to rebuild submitted plans, &c., to a corporation, which were returned approved, but accompanied by a printed notice to the effect that such approval gave no autlutrity for the making of any projection on the front of the building into the street beyond the proper line of building in the street. The owner pulled down the old building, but afterwards received a notice from the cor- poration, under § 35 of the Local Government Act, 1858, that any building thereafter to be built, must be built on a certain line 13 feet behind the line on the plans already approved. The owner sought, and Stuart, V.C., granted, an injunction restraining the corporation from interfering with the plaintiff in rebuilding, &c., and held, that the corporation were not at liberty to give such a notice after the notice of approval was given by their surveyor. SLEE Y. BRADFORD CORPORATION. (1863) 4 Giff. 262 ; 1 N. E. 386 ; 9 Jur. 815 ; 8 L. T. 491. Rebuilding. — An owner pulled down his premises, and sub- mitted the plans of a building, which he proposed to erect on the site thereof, to the local authority. The latter prescribed a building line 6 feet further back than the frontage of the premises pulled down, and refused to pass the plans unless they were altered accordingly. The owner, however, began to put in the foundations, whereupon the local authority sought an injunction. The owner alleged want of lona fides, because on either side were comparatively new houses, and a general line had not been pre- scribed in respect of them. North, J., held, that putting back the house 6 feet was not an unreasonable exercise of the powers con- ferred on the board by § 155 of the Public Health Act, 1875, and he granted the injunction. SUTTON LOCAL BOARD v. HOARE. (1894) 10 T. L. E. 586. • School-house. — A school board submitted plans of a proposed school-building to a local board, to which the latter objected as infringing a by-law. The school board, however, proceeded with the building. On January 22 the local board prescribed a building line which did not interfere with the main wall, but would interfere with certain annexes not then commenced. The board, however, built the annexes, and the local board sought a mandatory injunction. Pearson, J., held, that the building line was not well prescribed, as it was prescribed at a time when, owing to resignations, there were not a sufficient number of duly GENERAL LINK OF BUILDING 195 elected ineiubers of tlie board to furm a quorum. The local boaid appealed, and the Court {Cotton, Lladley, and Bowen, L.JJ.) reversed the judgment below, and held, that a building line under § 155 of the Public Health Act, 1875, may be prescribed where a building is taken down to be rebuilt, for any portion whicli has not been commenced, although other parts may have been com- menced, unless what has been commenced involves as a matter of construction a projection beyond the line afterwards prescribed ; and they ordered the demolition of the annexes, which might have been built in another position equally suitable, without infringinf' the building line. NEWHAVEN LOCAL BOABD v. NEWHAVEN SCHOOL BOARD. (1885) 30 Ch. D. 350 ; 53 L. T. 571 ; 34 W. IJ. 172. Shop. — The defendants obtained permission from the London County Council to bring forward a one-storey shop to the same line as the shops adjoining and beyond the general line of buildings, subject to the condition that the whole of the land in front of the shop was to be dedicated to the public. The defendants erected the shop and threw the land in question into the pathway, but formed in the latter an entrance to the cellar, 4 feet square, covered over with a hinged cellar-flap, for tlie purpose of admitting- casks of beer to the cellar. On hearing a sunmions by the Loudon County Council, the magistrate came to the conclusion that the defendants had complied with the condition of the council as far as they could, and he dismissed it. The Council appealed, and the Court (Mathcio and Wright, JJ.) dismissed the appeal. LONDON COUNTY COUNCLL v. BEST. (1893) 9 T. L. E. 499. Shop. — The owner of a house, in which a furniture business was carried on, erected a shop in the garden or fore-court lyino- between the house and the roadway. Previously the owners of other houses on the same side of the street had obtained the permission of the Metropolitan Board of Works, under § 76 of the Metropolis Local Management, &c., Act, 1862, to build shops on their respective fore-courts, on condition that a strip of the fore-court should be dedicated to the public for the purpose of widening the footpath. The owner of the house first mentioned erected his shop level with the other shops, but without the permission of the Board. Subsequently the geneml line of building was duly certified, and proceedings wei-e taken against the owner within six months of the date of the superintending architect's certificate. 196 GENERAL LINE OF BUILDING The magistrate dismissed the summons on the ground that it had not been brought within six months of the date of the offence, and, on a case stated, the Court {Lord Coleridge, C.J., and Manisty, J.) held, that such certificate was not a condition precedent either to the finding of the general line of buildings, or of the offence of building beyond it, and they affirmed the magistrate's decision. PADDINCrTON VESTRY v. SNOW. (1881) 46 J. r. 87 ; 45 L. T. 475 ; 30 W. E. 46. Shop Front. — In 1875 llie jilain tiffs, wlio were joint owners in fee of a house and an area enclosed by an iron railing, proposed to erect certain bay windows to form a shop front extending beyond the line of frontage in the street, l)ut not l)eyond the limits of the area. On tlie refusal of the local authority to approve the plan, the plaintiffs commenced to build without sanction in October, 1875, and the works were continued to the knowledge of the district surveyor, and completed ])y March, 1876. Subsequently the local authority threatened to proceed against the plaintiffs for contravening § 156 of tlie FiiUic Health Act, 1875, unless the building was set back to the original frontage. The plaintiffs sought an injunction to restrain the local authority from laying the threatened complaint or proceeding to recover the prescribed penalties. Je,s.se/, ilf.i?., lield, that a Court of Equity has no jurisdiction to restrain criminal proceedings for the recovery of a penalty imposed by an Act of Parliament for a breach of its enactments. KERB V. PRESTON CORPORATION, (1880) 6 Ch. D. 463 ; 46 L. J. Ch. 409 ; 25 W. R. 264. Shops. — The defendant had begun to erect certain shops according to a plan which he had submitted to, but which had been disapproved by, the local authority, and the latter by infor- mation sought an injunction to restrain him from continuing to build beyond an alleged building line. Romer, J., held, that all the circumstances of the case must be taken into account in deciding what was the basis of the building line, and that it is not right to pick out a certain wall in an adjacent public l)uilding and say it is the " front main wall " wliich is to govern the line of building. The Iniilding must be looked at as a whole : its character, position, and distance from the premises complained of. A.-G. V. EDWARDS. (1891) ICh. 194; 63 L. T. 639. Shops. — The owner of a building estate, held under a building agreement, gave notice to the local board on December 6, 1887, of GENERAL LINE OF BUILDING 197 his intcntidii to build rows of simps and private houses; and on February 7, 1888, on the application of the local board, the superintending architect of the Metropolitan Board of Works gave a certificate, with plan attached, fixing the general line of buildings. The distance of such line was in excess of 50 feet from the road, at the corner of which one of the houses had been built. This house was within 50 feet of the said road, but faced, and was entered from, an adjoining road. On hearing a summons under § 75 of the Metropolis Local Manafjement, &c., Act, 1862, the magistrate ordered the demolition of so much of the house as projected beyond the general line of buildings. On a case stated, the Court (Lord Coleridge, C.J., and Cave, J.) a firmed the decision below. GILBART V. WANDSWORTH BOARD OF WORKS. (1889) 53 J. P. 229 ; 60 L. T. 149 ; 5 T. L. E. 31. -Shops. — The owner of certain land, who had previously laid out a new street thereon, deposited with the vestry, in 1890, plans of a row of shops which he proposed to build in a street iumiediately adjoining, and at right angles to, the land. The end house of the row, the side wall of w^hich faced the new street, was not completed. In 1892 the owner erected a row of houses in the new street 10 feet further back than the side wall referred to. No other buildings were at that time in the new street. Subsequently the owner granted a building lease of the land to the appellant, who in building utilized the footings and flank wall of the incomplete house so that the ])uilding projected 10 feet in advance of the line of buildings in the new street. As the appellant had not obtained the consent of the London County Council under § 75 of the Metrojwlis Local Management, feet, and roofed in that part of the yard lying between the footi)ath and his house. On the space roofed in had stood previously two buildings, one used for a w.c. and the other a receptacle for shop shutters. On hearing a sum- mons against the occupier, issued by the vestry under § 75 of the Metropolis Local Management, &c., Act, 1862, for erecting a building beyond the general line of buildings, formed by the line on which the front wall of the house stood, the magistrate convicted the ilefendant, who appealed. The Court {Cockhuni, C.J., Mellor, Lush, and Hayes, JJ.) held, that the structure formed was a " building," although the mere raising of the wall was not within the meaning of the section. CLARK V. ST. PANGEAS VESTIiY. (1870) 34 J. P. 181. GOODS SOLD AND DELIVERED A brickmaker agreed with a builder to make bricks for him at a certain price per thousand. In an action by the former to recover the price of a certain quantity delivered, the defendant proposed to show that many bricks were so badly made as to be worthless. Patteson, J., held, that the defendant might deduct from the claim the price charged for the bricks which were so badly made as to be good for nothing, but could make no deduction in respect of bricks in a trifling degree badly made, and only less valuable. PARDOW v. WEBB. (1842) C. & M. 531. GUARANTEE By Building Owner. — A builder agreed to execute the car- penter's work in a certain house and to find all materials. The builder, being in difficulties, ccndd not obtain timl)er, and it was supplied by a local tradesman on the following imdcrtaking signed by the owner of the house : " I agree to pay M. (tlie tradesman) for timber to house out of money that I have to pay W. (the builder), provided W.'s work is completed." The Court held, that this was not a guarantee to pay if W. should fail, but a direct undertaking to pay when the work should be completed. DIXON, iix. V. HATFIELD. (1825) 2 Bing. 439; 10 Moo. (C. P.) 421. 202 GUARANTEE By Building Owner. — A builder conkactcd with the dcfendaut to build certain houses, and the defendant gave a guarantee for £200 to tlie plaintiffs, who supplied lime and mortar for the building of the houses to that amount. The defendant gave a further order ior £50 worth of lime, &c. The builder subsequently required more lime, and the plaintiffs supplied it on his order, without any further express authority from the defendant, who, however, resided in one of the houses at the time wlien the last order was delivered. At the trial of an action for the recovery of the cost of the last delivery of lime, Martin, B., held, that it was a question for the jury whether the defendant so acted as to lead the plaintiff to believe the latter supply was to be on his credit. The jury found for the plaintiff. SMITH V. RUDHALL. (1862) 3 F. & F. 143. HEIGHT OF BUILDING Above 80 Feet. — § 47 of the London Building Act, 1894, prohibits the erection of a building, not being a church or chapel, to a greater height than 80 feet, without the consent of the London County Council. A builder was summoned for contra- vening this section, and set up as a defence that, as the Com- missioners of Works had entered into an agreement to take a lease at their option when the buildings were completed, and as the buildings had been erected under the supervision of an archi- tect subject to the approval of the Commissioners, the buildings were vested, &c., in her Majesty, and that, therefore, they came within the exemption contained in § 203. Tlie magistrate dis- missed the summons, and the County Council appealed. The Court {Lawrance and Channdl, JJ.) alloivcd the appeal, and sent the case back for a conviction. DRURY V. RIGKARD. (1899) 63 J. P. 374. Exceeding Width of Street. — The respondents erected a house, at the corner of an old street and of a new street, the latter being less than 50 feet wide, exceeding in height the distance from the front of the house to the opposite side of the street, without the written consent of the London County Council, contrary to § 85 of the Metropolis Local Management, &c.. Act, 1862. The front of the building was in, and the entrance thereto from, the old road ; there was, however, a tradesmen's entrance to the building from the new road. On hearing a summons, the magistrate found, HEIGHT OF BUILDING 203 that tlio Inulding was ii.jL erected in the new sticct, so as to ho suhject to the provisions of the section, and dismissed tlie summons accordingly. The London County Council appealed. The Court {Mathetv, Wright, and Collins, JJ.) held, that although the main frontage was in the old street, the house was nevertlieless "erected on the side of a new street" within tlic meaning of § 85, and that an offence had l)cen committed by the respondents against that section. LONDON COUNTY COUNCIL v. LAWRANCE & SONS. (1893) 57 J. P. 617; 2 Q. B. 228; 62 L. J. M. C. 176 ; 5 E. 494; 69 L. T. 344; 41 W. E. 688. Exceeding Width of Street— Tlie respondent, a building owner, was sumuKjned by the London County Council, on March 7, 1894, for erecting a building, exceeding in height the width of a new street, without their consent in writing, contrary to § 85 of the Metropolis Local Management, &c., Act, 1862, and for continuing the erection of the same. On September 7, 1893, the respondent applied for the consent of the Council nunc pro tunc, Init on October 16, 1893, it was refused. On December 23, 1893, a penal notice had been served on the respondent, aud a similar notice had been served on the firm of builders in 1892. The respondent contended that, as he had not been summoned for, or con^■icted of, the original ofteuce, he was not liable for any penalty in respect of the continuing offence, and that as proceedings had not been taken against him within six months, according to § 107 of the Act, ho was not liable for a penalty in respect of the original offence. The magistrate held that the summons was out of time, and dismissed it. The Court {Matheiu and Kennedy, JJ.) held, that the con- tinuance at a prohibited height, after notice, of a building already erected, was a continuing offence within the meaning of the Act, tliat complaint had been made within six months next after the commission, or the discovery, of tlie offence, and that the respondent was liable. They accordingly remitted the case to the magistrate. LONDON COUNTY COUNCIL v. WOllLEY. (1894) 59 J. P. 263 ; 2 Q. B. 826 ; 63 L. J. M. C. 218 ; 10 E. 510; 71 L. T. 487; 43 W. E. 11; 18 Cox C. C. 37. HOARDING Discretion of Local Authority to grant Licences. — xV builder submitted plans, &c., of a proposed building to a local vestry, 204 IIOAIIDING iiud applied for a licence lo erect the necessary hoarding. The licence was refused on the ground that the plans showed that the building would infringe the general line of buildings in the street. The buihler erected a lioarding which was taken down by tlie vestry. On hearing a rule for a iiituidaimis, the Court {Lord Camphcll, C.J., and others) were of opinion that the granting of such licence was within the discretion of the vestry acting homl fide, but in view of the builder having taken the law into his own hands, they discharged the rule. E. v. SHOllE DITCH VESTRY. (1856) 20 J. P. 404. Erection of Advertising Station restrained. — The lessee of a house and premises co\'enauted not to erect any building or erection on any part of the premises without the lessor's written licence. Subsequently the lessee erected a wooden hoarding against the side of the house for advertising purposes. The lessor sought, and Mathew, J., granted, an injunction against the lessee. POCOCK V. GILHAM. (1883) 1 Cab. & E. 104. Not a Building. — The first-named defendant purchased, in 1869, from the owner in fee, a portion of a residential estate subject to a covenant that the buildings erected thereon should be of a prescribed heiglit, have a cemented front and a slated roof. In June, 1892, the defendant company, under licence from the first-named defendant, erected a wooden hoarding varying in lieight from 8 to 14 feet, for use as an advertising station. In an action on the covenant, and for an injunction, the chief question was whether the hoarding was a building within the meaning of the covenant, and Kekeivich, J., held, that the erection of the hoarding was not a breacli of the covenant. FOSTER V. FRAZER. (1893) 57 J. P. 646 ; 3 Ch. 158 ; 63 L. J. Ch. 91 ; 3 E. 635 ; 69 L. T. 136 ; 42 W. K. 11. ■ Improper Conditions of Licence. — A contractor about to erect a large building, which it was estimated would take two years to complete, applied to the Commissioners of Sewers for a licence to erect the necessary hoardings in four streets. The application was refused, except upon condition that there should be a separate licence for each street available only for a period of two months, that a fee of £10 should be paid for each licence, and that no advertisements should be permitted on or against the hoardings. On hearing a rule for a mandamus, the Court {Cockhurn, C,J., and HOARDING 205 Mellor, J.) held, that one licence was sufficient, and that its duration should be for such reasonable time as was necessary to finish the buildings, and that the Commissioners had no power to impose the condition prohiliiting advertisements thereon. R. V. COMMISSIONERS OF SEWERS OF THE CITY OF LONDON. (1870) 22 L. T. 582. Rating of. — An advertising agent obtained by written agi'ee- ment, the right to exhil)it advertisements, posters, «&c., on certain hoardings, and his name was inserted in a valuation list as being the ratealile occupier of the hoardings under § 3 of the Advertising Stations {Rating) Act, 1889. The written agreement contained a provision that the agreement should not give him any interest in the prendses upon wliicli the hoardings stood, or in any way make him liable for rates and taxes during the continuance of the agreement. The Court of Quarter Sessions held, that the advertising agent was the person who permitted the land upon wliich the hoardings stood to l)e used for the exhibition of advertisements, and dismissed his appeal. The Court {Grantham and ChanneU, JJ.), on a case stated, held, that the advertising agent did not permit the land on which the hoardings were erected to be " used for the exhibition of advertisements " within the meaning of the section, and was not liable to be rated in respect thereof. BURTON V. ST. GILES' tt ST. GEORGE'S ASSESS- MENT COMMITTEE. (1900) 64 J. P. 213 ; 1 Q. B. 389 ; 69 L. J. Q. B. 184; 82 L. T. 24 ; 48 W. E. 222. Rating of. — A contractor about to erect a large Government building, enclosed the site by a large hoarding. Pursuant to a clause in the contract permitting advertisements to be affixed to the hoarding to a height not exceeding 12 feet, the contractor let the hoarding as an advertising station for £C0 a month. The hoarding had been erected by permission of the Commissioners of Sewers for the City of London, who had charged a sum of £10 for their licence, and the builder's name had been entered in the poor- rate book as the person liable under § 3 of the Ad rcrtixing Stations {Rating) Act, 1889, to be rated in respect thereof. The builder appealed on the grounds that it was not the hoarding, but the land on whicli it stood, that was rateable, that tlie land was " otherwise occupied," and that the land was Government property, and that, 206 HOARDING therefore, he was not the rateable occupier. The Court {Mathcio a ad A. L. Smith, J J.) held, that the hoarding had been erected ou hiiid not otherwise occupied, and that as the builder permitted the lioarding to be used for advertising, lie must l)e deemed to be the beneficial occupier, and, therefore, liable for the rate. CHAPPELL V. VEBSEERS OF ST. BOTOLPH. (1892) 56 J. P. 310 ; 1 Q. B. 561 ; 65 L. T. 581 ; 40 W. K. 192. Standing unreasonably long. — The defendants, with a view to rebuilding, erected a hoarding in front of theu' premises, obstructing the approach to the adjoining house, and subsequently pulled down their premises and erected a new building. The adjoining owner brought an action for damages, alleging that, owing to the un- reasonable delay in the building operations, the obstruction by the lioarding was continued for a long and unreasonable time, and customers were prevented thereby from entering the plaintiff's shop ; and negligence in the work of demolition, by reason of which building materials in large quantities fell, breaking the plaintiff's skylights, and damaging his goods ; and negligence in excavating, underpinning, and shoring up, whereby the plaintiff's premises were damaged. Tindal, G.J., entered a verdict for the plaintiff, subject to the award of a barrister, whose award came before the Court on motion. Tindcd, C.J., held, in a considered judgment, that tlie Lord Mayor's licence, and custom, were a sufficient answer to the claim in respect of the hoarding, and that the defendants had no right to underpin the party wall, either partially or wholly, unless that could be done without injuring the plaintiffs house. BRADBEE v. CHBISTS HOSPITAL. (1842) 11 L. T. C. P. 209 ; 4 M. & Gr. 761 ; 5 Scott (n.r.) 79; 2 D. P. C. (N.s.) 164. HUSTINGS Not a Building, — Hustings were erected in a borough at tlie expense of candidates for a seat in Parliament, and were injured by the mob, and repaired by the candidates, who sought compensation through the mayor. The Court held, that the structure was not a "building" within the meaning of the Act 57 Geo. III.c. 19, and the injury was not such as was contemplated by the statute, and that, as the property was not in the mayor, he could not maintain the action, even if it were a " building." ALLEN V. A YBE. (1823) 1 L. J. (o.s.) K. B. 204 ; 3 D, & R, 96. HUSTINGS 207 Destroyed by Mob. — A builder af,aeed iu writing with the mayor of a certain l)()nmgh to erect hustings " cts hefure, tvith aUerations, for £19 10s., hi/ receiving the wood back again, and to find labour, &c." As soon as the election was over the nioh destroyed the hustings. In an action, by the builder against the mayor, for the price of the wood destroyed, Wiglitman, J., rejected evidence offered to sliow that on former occasions the contractor took all the responsibility, and a verdict was entered for the plaintiff. On hearing a rule, the Court {Patteson and Erie, JJ.) held, in a con- sidered judgment, that the defendant was liable, and that evidence was not admissible to show that on former occasions those who put the hustings up took them away. FULLER v. PATTBICK. (1849) 18 L. J. Q. B. 236 ; 13 Jur. (o.s.) 561. ILLEGAL CONTRACT To build on Disused Burial Ground. — The defendant agreed to erect certain buildings on a plot of land, and the plaintiff agi-eed to grant a lease of the same when the buildings were erected, the defendant to pay an agreed rent until the lease should be executed. In an action for such rent, the defence proved that the laud was a disused burial ground, and that by a recent Act it was illegal to build thereon, Day, J., held, that the contract was an illegal one, and could not be enforced. GIBBONS V. CHAMBERS. (1885) 1 T. L. K. 530 ; 1 Cab. & E. 577. To build in Contravention of Statute. — Tlie defendant con- tracted with a builder for the erection of a house of wood with stone footings in the fore-court of the defendant's premises for use as a permanent shop. At the suggestion of the builder, and to evade the provisions of the Metropolitan Building Act, 1855, wooden footings not let into the ground were substituted for stone. During the progress of the works, the sub-contractor employed by the builder was convicted by a magistrate on a summons under § 45 of the Act, for not having given the statutory notice to the local authority. In an action by the builder for the balance of the agreed price, Martin, B., reserved leave to the defentlant to move, if the Court should be of opinion that the contract, being in contravention of the Act, could not be enforced. On hearing a rule obtained by the defendant, the Court {Erie, C.J., Williams, Crotcder, and Byles, J J.) held, 208 ILLEGAL CONTRACT that the contract, ])cing illegal, could not be enforced, and the rule was made absolute. STEVENS V. GOURLEY. (1859) 7 C. B. (N.s.) 99 ; 6 Jur. 147 ; 29 L. J. C. P. 1 ; 1 L. T. 33 ; 1 F. & F. 498 ; 8 W. E. 85. ILLEGAL STRUCTUEE The proprietor of a theatre erected in front thereof a verandali of glass and iron, without first obtaining the consent of the Metropolitan Board of Works, contrary to the proWsions of the Metropolitan Building Ad, 1855. An adjoining owner sought an injunction against the proprietor of the theatre on the ground that the structure had been illegally erected, and that it interfered with the access of light to his premises. Stirling, J., held, that the plaintiff could not sue alone, and that any proceedings in respect thereof must be taken by the Attorney-General, ex officio, or at the relation of the Metropolitan Board of Works, and that there was no interference with the plaintiff's lights. BROOKS V. TERRY. (1887) 4 T. L. E. 678. IMPLIED CONTRACT The lessee of certain premises under a covenant to repair, verbally promised a builder that he would assign to the builder the lease, if the latter would effect certain repairs. The builder duly put the premises in repair. In an action by the builder. Best, G.J., held, that, on refusing to assign the lease, the defendant was liable, on an implied contract, to pay the plaintiff for such repairs. GRAY w. HILL. (1826) Ey. & M. 420 ; 27 E. E. 766. INCONSISTENT ENACTMENTS The London School Board, under § 19 of the Elementary Education Act, 1870, built a school-house upon certain land com- pulsorily purchased by them for the purpose. The external fence of the playground attached to the school was within 20 feet of the centre of the roadway. §§ 4 and 6 of the Metropolis Manage- ment and Buildings Acts Amendment Act, 1876, prohibits the erection of a wall, &c., within 20 feet of the centre of the roadway without the consent of the Metropolitan Board of Works. The INCONSISTENT ENACTMENTS 200 London County Council suinnionud the School Doanl lor con- travening the provisions of that Statute, Ijut the magistrate dismissed the summons. The County Council appealed, and the Court {Wright and Collins, JJ.) held, on a case stated, that the provisions of the latter Act were inconsistent with the statutory powers of the School Doard for the acquisition and user of land, and tliat, therefore, the Board could use the land for their statutory purposes free from the restrictions imposed l>y those provisions. LONDON COUNTY COUNCIL v. SCHOOL BOARD FOE LONDON (1892) 56 J. P. 791 ; 2 Q. B. OUG ; 62 L. J. M. C. 30 ; -40 W. E. 604; 5 II. 1. INSURANCE Company may reinstate. — Certain premises insured against fire were burned down. A clause in the policy empowered the company to " reinstate or replace " the premises, instead of paying the loss. In an action by the insured for the payment of the loss, the Queen's Bench Division {Manidij and Wills, J J.) decided in favour of the company. On appeal by the plaintiff, the Court {Lord Usher, Cotton and Boivcn, L.JJ.) held, that in the event of total loss, the company might reinstate the property by other property equivalent to that destroyed ; and in the event of partial loss, they might repair and put in, not in tlie exact place, Init in the same state in which it was before the fire, instead of pa}'ing the amount of the loss. ANDERSON v. COMMERCLAL ASSURAA CE CO. (188G) 55 L. J. Q. B. 146 ; 34 W. li. 189. Building Owner to insure. — A Ijuilding contract provided that the building owner " shall and may " insure the fittings against risk of damage from fire, and deduct the premiums from the amount of the contract. The defendant was surety for the due performance of the contract by the l)uildcr. The l»uilding owner had not insured, and had advanced a considerable sum on account of the contract, when the unfinished works, to the value of £2300, were destroyed by fire. The builder subsequently became bankrupt, and never repaid any of the sums advanced to him by the building owner. In an action by the building owner against the surety to recover the extra cost of finishing the work. Hill, J., directed a verdict for the plaintiff with leave to move. On a rule, the Court of Excliequer {Pollocl; C.B., and Watson, B.) held, in a considered judgment, that it was the duty of the plaintiff" to insure, and that the defendant M.B.C. P 210 INSUKANCE was entitled to the benefit of tlie insurance, whether he knew of the stipulation to insure or not. On appeal, the Exchequer Chamber, in a considered judgment, affirmed the judgment of the Court below in favour of the defendant. WATTS V. SHUTTLEWOBTH. (1861) 7 H. & N. 353 ; 7 Jur. 945 ; 5 L. T. 58 ; 10 W. E. 132 ; 29 L. J. Ex. 229. INTERPLEADER A builder entered into a building agreement with the owner of certain lands. One of the clauses of the agreement provided that all building and other materials, brought l:)y the builder upon the trround, whether fixed to the freehold or not, shall Ijecomc the property of the owner. The sheriff of Kent seized certain bricks on the premises under a. Ji. fa., and the landowner claimed them as his property under the agreement. An interpleader issue, the execution creditor being plaintiff and the claimant defendant, was tried by the County Court judge, who held, that the agreement amounted to a bill of sale. On appeal, the Court (Watldn Williams and A. L. Smith, J J.) held, in a considered judgment, that the agreement was not a bill of sale within the meaning of tlie Bills of Sale Act, 1878. On further appeal the Court of Appeal (Lord Coleridge, C.J., Brett, M.B., and Bowen, L.J.) held, in a considered judgment, that the agreement in question was not a bill of sale, and they affirmed the judgment of the Queen's Bench decision. BEEVBS V. BABLOW. (1884) 12 Q. B. D. 436 ; 53 L. J. Q. B. 192 ; 50 L. T. 782 ; 32 W. E. 672. INTERROGATORIES The plaintiff engaged a valuer to ascertain the value of a certain Ijusiness, and owing to alleged negligence and want of reasonable skill on the part of the A'alucr, the plaintiff sued him for damages. A summons for leave to administer interrogatories was referred by Martin, B., to the Court {Lord Coleridge, C.J., Keating, Brett, and Denman, JJ.), and it was held, that the plaintiff was entitled, under § 51 of the Common Law Procedure Act, 1854, to interrogate the defendant as to the basis of his valuation. A distinction between an arbitrator and a valuer was drawn by Jjord Coleridge, C.J. TUBNEB V. G GULDEN. (L873) L. 11. 9 C. P. 57; 43 L. J. C. P. 60. JOINT CONTRACT 211 JOINT CONTRACT Five couliacloi.s agreed by letter to construct a liarbour at Alexandria. No articles of partnership were made, but it was agreed tliat the profits and losses should be equally shared between them. Before the contract was conijileted one of the contractors died. In an acti(ui by his executors and trustees, Baron, V.C., set aside the agreement, and from this decision they appealed. The Court {James and Mcllisli, L.JJ.) held, that the estate was entitled to share in the profits of the contract, and that those profits were to be the actual profits ascertained when the contract was com- pleted, and not by valuation or l»y sale of the contract. McCLEAN V. KEXNAIW. (1874) L. E. 9 Ch. 336; 43 L. J. Ch. 323; 30 L. T. 18(; ; 22 W. Pv. 382. LATENT DEFECTS The contractors employed to build a certain bridge were to perform the work to the satisfaction of the engineer, and maintiiin it for one year after completion, during which period the last instalment was to be retained as security, .\bout a year after })aymeut of the last instalment, the liridge became unsafe, as one of the piers was not executed according to the contract ; and the bridge trustees brought an action against the contractors for repayments in respect of (1) work, &c., not done, (2) cost of remedial works, (3) damages for breach of contract. The Court {the Lord President, Lords Deas, Mure, and Shand) held, reversing the Ijord Ordinary, that the knowledge of the engineer was the knowledge of the trustees, and the final settlement having been made on his reports, in the absence of fraud, the trustees w^erc not entitled to open up the matter after the lapse of so long a time. AYll BRIDGE TRUSTEES v. ADAMS. (1883) 11 Ct. of Sess. Cas. (4th Ser.) E. 32G. LIGHT AND AIR Air to Chinmeys obstructed. — The owner of a public-house sued the owner of an adjoining warehouse for carrying the building to a greater height than the public-house, whereby the air coming to the chimneys of the public-house was obstructed or diverted, causing them to smoke. Grantham, J., left the case to the jury, who found £250 damages for the plaintiff. On motion for a new trial, the Court ( ITiV/.s- and Day, JJ.)hcld, that no acti L. T. 552. Unity of Possession and Occupation. — In 1855 tlie owners in fee of a certain house and adjoining land granted a lease of the land, for ninety-nine years, to trustees, who coxenanted to build upon it according to an approved plan. lu 1856 the owners conveyed the M.B.c. Q 226 LIGUT AND AIR reversion in fee of tlie land to the trustees. In 1857 the owners con\'eyed the liouse in fee to a person under whom the plaintiff obtained possession. Subsequently, and with the authority of the trustees, the defendant Ijuilt npon the land so as to obstruct the light and air which, for more than twenty years, had come to the plaintiffs windows. If the defendant had built in accordance with the plan on the lease the obstruction would have been less. Until the lease had been granted there had never been any severance either in title or of possession or occupancy of the land and house, both of which had been occupied and used together by the proprietors thereof for more than fifty years. On a case stated l)y order of a judge, the Court (Pollocl; C B., Martin, Channell, and Wilde, BB.) held, that the plaintiff could not maintain an action against the defendant for })uilding on the land so as to obstruct the light and air which formerly came to the windows of his house. WHITE V. BASS. (1862) 7 H. k N. 722 ; 8 Jur. 312 ; 31 L. J. Ex. 283 ; 5 L. T. 843. When Easement begins. — The plaintiffs were, respectively, owner in fee and lessee of certain premises. The defendant was owner of the adjoining premises, and erected a hoarding in front of, and 18 inches from, two windows in the north wall of the ])laintiffs' house, tlierel)y seriously obstructing the light and air coming through the two windows into the plaintiffs' house. The plaintiffs brought an action claiming an injunction, and the question was whether or not the windows were ancient lights. Bonier, J., held, that a right to the light and air coming to tlie windows of a building, which may grow into the statutory right acquired by twenty years' user and enjoyment as of right and without interruption, commences when the exterior walls of the l)uilding, with the spaces for the windows, are complete, and the building is properly roofed in, although the window-sashes and the glass may not be put in and the interior finislied until some time afterwards. Coicrtauld v. Legh, L. 11. 4 Ex. 126 (see p. 73, sup^a), followed. COLLIS V. LA UGHER. (1894; 3 Ch. 659 ; 63 L. J. Ch. 851 ; 8 R. 760 ; 71 L. T. 226 ; 43 W. R. 202. LiaUI DATED DAMAGES Deducted from Balance due. — A builder contracted to execute alterations in a certain house within a specified time, " subject to a LIQUIDAIKD DAMAGES 227 2ieiialtij of £20 per uxck that amj of the loorks remain uiifinlalted " after a fixed date. On a rule iu au actiou by the builder for the balance due, the Court {Erh\ C.J., Bi/les, Kcatiiuj, and Sniith, JJ.) held, that the £20 was iu the nature of li([uidated damages, and not penalty, and could be deducted by the defendant a« such, without proving the actual damage sustained. CRUX V. ALDRED. (18G6) 14 W. E. 656. Delay. — A builder agreed to repair a church according to plans and specification, and to have the works completed by a specified date. In default, he was to forfeit to the defendant £10 for each week the completion would be delayed beyond the specified date. The builder made default. On demurrer, in an action brought by liim on the contract, the Court (Ashursf, Butler, and Grose, JJ.) held, that if two persons agi-ee to perform a certain work within a limited time, or in default to pay a weekly sum for such time thereafter as the completion would be delayed, such weekly payments are not by way of penalty, but in the nature of liquidated damages, and might be set off by the defendant in the action brought against him l)y the builder. FLETCHER v. DYCHE. (1787) 2 T. 11. 32 ; 1 R. E. 414. Delay. — The plaintiffs contracted with the defendants to execute, and complete by a given day, certain works, and, in default, that they should pay to the defendants £3 a day until completion. The balance of tlie contract was payable on the final certificate of the defendants' inspector, whose decision, in all matters referred to him, was final. In the event of a dispute arising between the contractors and the defendants, it was to be left to the award or certificate of the inspector. A dispute arose, and the inspector certified £990 as due to the contractors. The contractors brought an action against the defendants to recover that sum. The defendants alleged that the plaintiffs wei-e liable to pay them £873 in respect of delay in completion, and they paid the balance into Court. The plaintiffs pleaded tliat the delay was caused by reason of certain additions and alteratitnis ordered by the defendants, and to this the defendants pleaded that by the contract extra works shoidd be ordered by the clerk of works and countersigned by the bursar, that notwithsUmding such extra works as might be ordered, the time-limit was not to be extended, unless by an order signed by the clerk oi works and countersigned by the bursar. The Court (Mellor, Lush, and Ilannen, JJ.) held. 228 LIQUIDATED DAMAGES tliat the certificate of the inspector was not a condition precedent to the defendants' right to £3 a day, nor did the clause referring tlie matter to the inspector exclude the right to bring an action. Having expressly agreed to do all the work, and extra work if ordered, within the original time-limit, the contractors were bound liy the decision of the clerk of works and bursar, although it miglit involve an impossiVjility. JONES V. ST. JOHN'S COLLEGE. (1871) L. R. 6 Q. B. 115 ; 40 L. J. Q. B. 80 ; 23 L. T. 803 ; 19 W. E. 276. Delay caused by Employer's Architect. — A firm of builders sued for the balance due to them on a building contract, and the employers claimed £10 a day for the number of days completion of the work was delayed beyond the stipulated period. One clause in the contract provided that extra works, &c., if ordered, were not to vitiate the contract, or the claim for penalties under the contract. The work was to be completed within a year, unless delayed by alterations ordered, strikes, &c., satisfactory proof of which was to be at once afforded to the l)oard of directors of the employers, " who will adjudicate tliereon, . . , and their decision shall be final." In case of default the l)uilders were to pay £10 a day as liquidated damages for every day the work was delayed beyond the specified period. Wright, J., held, that the exclusive jurisdiction of the board did not extend to delay caused by the employers or their architect, viz. alterations, delay in giving the builder's possession, and furnishing drawings. Such delay being made out, the employers could not recover the penalties claimed. WELLS V. ARMY & NAVY CO-OPERATIVE SOCIETY, LTD. (1902) 8G L. T. 764. Delay caused by the Owner. — The plaintiffs contracted to build a brewery for the defendants within a certain period, or in default to forfeit to the defendants, by way of liquidated damages, a sum of £40 a week for each week that the completion of the work should be delayed beyond a certain date, the amount to be deducted from the contract price. The defendants failed to give the plaintiffs possession of the premises until four weeks later than the date of the agreement ; the plaintiffs' workmen occasioned a further delay of one week, and the defendants' workmen a further delay of four weeks. Tlie works were not completed until five weeks after the stipulated date. In an action for the balance of the contract, Parlcc, B., held, that the defendants were not LIQUIDATED DA^IAGES 229 entitled to deduct from tlio aiaomit of tlio contract .any svun in respect of delay. HOLME V. GUPPY. (1837) 3 M. & W. 387 ; 1 Jur. 825. Delay : Contract varied. — A building contractor agreed to execute certain works according to specifications, bills of quantities, and schedules of prices, on which he tendered for £5512. If the contract was not ccunpleted by a certain date, " or within such extended time as should be allowed," £100 was to lie paid by tlic contractor to tlie employers for every week's delay as liquidated damages. The contract empowered tlie employers, by their architect, to determine the contract, if the work was not proceeded with expeditiously, and to take possession of the works and plant, and employ another contractor to finish the work. A delay of some months took place owing to a change in the plan, but no corresponding modification was made in the contract. Disputes arose subsequently, but were settled by an agi-eeraent which varied the contract and extended the time. A notice, in August, 1883, to determine the contract owing to delay was withdrawn on the builder undertaking to expedite the works. On a reference, the arbitrator found that the balance of the contract was £867 odd, and the plaintiff sought t<5 recover that sum ; the defendants counterclaimed for the liquidated damages in respect of delay. On a case stated, the Court {Wills and Grantham, JJ.) held, that the agreement of August substituted a fresh measure of performance and a new contract, and that the defendants had repudiated the old one, and they gave judgment for the plaiutitl", less £50, at which the arbitrator valued tlie unli(|uidated damages owing to delay. WOOD V. TENDIUNG RURAL AUTHORITY. (188G) 3 T. L. IJ. 272. Delay: Penalty waived by Order of Extras. — The plaintilV, a builder, sued the defendant to recover a balance due to him on foot of a buildinw contract. The defendant counterclaimed the sum of £50, as liquidated damages, for nou-completiou of the work within the stipulated time. By a clause in the contract the building was to be ready for the roof timliers by May 1, 1892, and the whole of the works to be completed by June 1, 1892, in default of which the builder was to forfeit £2 a week as liquidated damages. The contract price was £(3G4, and extiu works value for £22 8s. 8(/. were ordered, which necessarily involved some delay. The works were not completeil until December, 1892. 230 LTQUTDATED DAMAGES Evidence was given that only a fortuiglit's delay would have been reasonable in respect of the extm works. The County Court judge held, that by giving the order for extras the defendant had waived the condition for a penalty, and entered judgment for tlie j)laintifr S' V. LONDON NECEOPOLIS CO. (1885) 1 T. L. K. 584. "MORE OR LESS]" Interpretation. — A steel company agreed to supply the con- tractors for the building of the Forth Bridge witli " tlie wliole steel " required for the undertaking, less 12,000 tons. The con- ditions stated that the estimated quantity of steel required would be " 30,000 tons more or less," and provided tliat differences arising out of the contract were to be settled by " the engineer of tlie Forth Bridge," whose decision was binding on both parties. In an action by the steel company against the contractors as to the quantity of steel to be supplied, the Court of Sessions (15 & "MORE OU LESS" 237 IG CouiL uf Sessions Ciis. 4tli Ser. 215 & 440) decided iu favour of the steel company. The contractors appealed, and the House of Lords {Lords Ilalshi/ri/, L.C., Watson, Bramwell, Herschell, and Morris) held, that tlie arl.itrati(m clause was not binding, as, by Scotch law, an agreement to refer future disputes to an un- named person, designated only by his office or position, is not l)inding; and that the steel company were entitled to supply the whole of tlie steel required for tlie bridge, and their rights were not affected by the statement that the estimated quantity would be 30,000 tons more or less. TANCRED, ARROL & CO. v. STEEL CO. OF SCOT- LAND, LTD. (1800) 15 App. Cas. 125 ; 16 Ct. of Sess. Cas. (4th Ser.) 440. MUTUAL GABLE The owner of two adjoining building sites erected a liouse upon one of them, and conveyed it to the respondent. A gable separating the respondent's house from tlie adjoining house was declared 1)Y the title-deeds to be a mutual gable. The purchaser of the other plot made use of the mutual gable when liuilding the liouse upon it, although in the particulars of sale the umised half of the gable and boundary walls was excluded from the offer. In an action against the purchaser of the other plot for half the cost of tlie mutual gable wall, the Second Division of the Court of Sessions held, that the successor in title to the pur- chaser of the house was entitled to claim from the purchaser of the second plot one-half of the value of the mutual galde. On appeal, the House of Lords {Earl of Hahhurij, L.C., Lordx Herschell, Macnaghton, Morris, and Shand) affirmed the judgment of the Court below. BAIRD v. BELL. (1898) A. C. 420 (sc). NEGLIGENCE Of Adjoining Owner. — The defendant employed an architect and a builder to rebuild his house, which adjoined the premises of the plaintiff. In tlie course of rebuilding, the builder's work- men negligently cut into the party wall of a third house, owing to which negligence a portion of the third house fell, and injured the plaintiiV's premises. The contract provided that the builder was to be responsible for all damage caused by the negligence, &c., of his workmen or himself. The plaintiff sued the defendant for the injury done to his house, and Manishj, J., entered judgment 238 NEGLIGENCE for the plaiutiff. The defendant appealed, and the Court {Baggallay and Brett, L.JJ. ; Holker, L.J., dissenting) held, that the defendant was liahlc, as the duty of taking all necessary precautions to prevent any injury happening to the plaintiff's house during progress of the works was imposed upon him. Affirmed in the House of Lords. HUGHES V. rERCIVAL. (1883) 47 J. P. 772 ; 8 A. C. 443 ; 9 Q. B. U. 441 ; 52 L. J. Q. B. 719 ; 49 L. T. 189 ; 31 W. li. 725. -Bare Licensee takes all Risks. — The owner of certain land employed a watchman to protect certain unfinished buildings, and had contracted with the defendant to carry out certain excavations on the adjoining plot. To do so the defendant employed a steam crane, with a chain and iron tub attached thereto, and while the watchman was standing on the adjoining plot, within the swing of the bucket, looking at the men at work, the chain broke, and the bucket fell on the watchman, causing to him injuries which proved fatal. It was admitted that the deceased had nothing to do with the defendant's men, nor was it any part of his duty to watch or superintend them at their work, nor need he have stood there. The widow of the deceased brought an action under Lord Campbell's Act, 1846, to recover compensation from the defendant for negligence, and Lopes, J., directed a verdict for the defendant at the close of the plaintiff's case. A rule, calling upon the defendant to show cause why there should not be a new trial, was ol)tained, and the Court ( Williams and A. L. Smith, J J.) discharged the rule. The plaintiff appealed, and the Court {Brett, MM., Boiocn and Fry, L.JJ.) held, that there was no evidence of the defendant's negligence; that the deceased was at most a bare licensee; and that he stood where he did, subject to all risks incident to the position in which he had placed himself. BATCHELOR v. FOBTESCUE. (1883) 11 Q. B. D. 474 ; 49 L. T. 644. Builder. — An action was brought by one tenant in common of a party wall against a builder employed by the other tenant, for pulling it down carelessly and rebuilding it with unreasonable delay, special damage being laid in damage to fixtures, loss to business, &c. One count was for trespass and the other for negligence, and the tacit assent of the plaintiff to the work being commenced was held to support a plea of leave and licence, but not to be applicable to the claim for negligence. PFLUGEB V. HOC KEN. (1858) 1 r. & F. 142. NEGLIGENCE 230 Builder. — J'he owner iu I'ue of coiUiiii prcniiscs .sued a Ijuilder for causing damage thereto in erecting a building adjoining. The defendant pleaded tlie Metropolitan Building Act, 1855, and that the damage complained of, if any, was a necessiiry consequence of carrying out the work, and that the plaintiff's remedy was against his employer. Kay, J., held, that the Act did not exonerate the builder from liability for damages caused by negligence if loss has been sustained by such. WHITE V. PETO. (1888) 58 L. T. 710. Contractor : Well-hole not Lighted. — A builder contracted with a local board to sink wells according to a specification prepared by the board's surveyor ; the work was to be done under the super- intendence and to the siitisfaction of the surveyor, who had power to order defective materials or work to be removed or replaced by the contractor, or at his expense ; and to order the dismissal of unsatisfactory workmen. The builder was sued for injuries sus- tained by the plaintiff owing to one hole not being properly lighted. The jury found for the plaintiff. On hearing a rule, the Court {Lord Camplcll, C.J., Coleridge and Erie, J J.) held, that the de- fendant was entitled to notice of action under § 139 of the Public Health Act, 1848, and made the rule absolute. NEWTON V. ELLIS. (1855) 5 El. & B. 115 ; 24 L. J. Q. B. 337 ; 3 W. R. 47G ; 1 Jur. 850. Excavating. — The plaintiffs were lessees and occupiers of certain premises, and brought an action against the defendant for negli- gently excavating near their house, which was thereby damaged. The defendant denied negligence, and pleaded that the injury was caused by the negligence of a water company in leaving their main in front of the premises unstopped, or improperly stopped. A master at chambers refused the plaintiffs permission to add the water company as defendants, but his decision was reversed by Bigham, J., and the defendants appealed. The Court {A. L. Smith, Collins, and Homer, L.JJ.) held, that the water company could not be so joined, as the cause of action against them was a separate tort, although tlie consequent damage might be the same in each case. THOMPSON v. LONDON COUNTY COUNCIL. (1899) 1 Q. B. 840 ; 08 L. J. Q. B. 625; 80 L. T. 512; 47 W. K. 433. 240 NEGLIGENCE Heap of Building Materials. — A Ijuilder engaged in erecting l)uildings adjoining a liigliway which was separated from a pond by an S-foot stone wall, deposited a lieap of building materials against the wall, reaching up to a point 2 feet 6 inches from the top. A child who was playing on the heap fell over the wall into the pond, and was drowned. In an action for damages by the father in respect of the death of his child, the Court {Lord Justice- Clerl,-, and Lords Young, Trayner, and Moncrieff) dismissed the action, as there was no evidence of negligence. HORSE URGE v. SHE AC H. (1900) 3 F. 268, Ct. of Sess. Heap of Unlighted Material. — The plaintiff, while crossing a certain road after dark, stumlded and fell over a heap of surface refuse and grass w^hich had l)een left on the road without any light or protection, and sustained serious injury. The district council had not taken over the road, but liad served notice on the owner, under § 150 of the PuUic Health Act, 1875, to make up the road, and on his default had contracted with the joint defendant to do so, according to certain plans and specification. He was to provide all materials, lighting, fencing, watching, &c., but subject to the su])ervisif)n of the district surveyor. The work was commenced on the day before the accident, and the obstacle which caused the accident was the result of the preparatory cleaning up of the road. After the accident lights were placed on some of the heaps by the district surveyor's orders. The plaintiff obtained £50 damages in an action against the urban council and the contractor, and Bruce, J., directed judgment to be entered in favour of the second defendant. On further consideration, the judge held, in a written judgment, that the district council, having the control of the w^orks, were liable for the negligent acts which they permitted ; the payment into Court by the contractor of a sum exceeding £50 afforded no defence to the district council, and the plaintiff was entitled to judgment against them, but as the damages had lieen obtained from tlie contractor, the judgment sliould be confined to costs. HardaJcre v. Ldle District Council (189G), 1 Q. B. 335, and Pichird v. Smith, 10 C. B. (n.s.) 470, followed. PENNY V. WLMBLEDON URBAN COUNCIL. (1898) 62 J. P. 582 ; 2 Q. B. 212 ; 67 L. J. Q. B. 754 ; 78 L. T. 748. Landlord liable for Workmen's Negligence. — An action will lie against the landlord of a house demised by lease, who, under NEGLIGENCE 241 Ill's contmct willi his Leiiant, employs woiknicn to lopair Llie liousc, for a nuisance caused by the negligence of his workmen. LESLIE V. POUNDS. (1812) 4 Taunt. (549. Notice. — liy a local Act it was piovidetl tliat no plaiutitf nhould recover in any action brought for anything done under the general Acts for sewers, unless notice in writing was given to tlic defendants, specifying the cause of action. A notice stated that the defendants altered certain sewers running under, through, or adjoining, or near to, tlie plaintilT's house so negligently and un- skilfully that it fell down. It ai)peared tliat the sewer did not run close to the plaintifif's liouse, but close to another which had been badly shored up, and the stack of chimneys of which fell and injured the plaintiff's liouse. The Court (Ahbolf, C.J., Bayley and Best, J J.) held, that the notice sufficiently described the cause of action. JONES V. BIRD. (1822) 5 B. & Aid. 437 ; 1 D. & R. 497 ; 24 li. It. 579. Statutory Exemption from all Liability. — The defendants con- tracted to execute certain work for the Commissioners of Sewers, and, by reason of their negligence in carrying out the work, the plaintiffs premises were injured. The jury found that the defendants acted bond fide under the direction of the Com- missioners of Sewers, and Polloek, G.B., entered judgment for the plaintiff, with leave to move. On hearing a rule obtained by the defendants, the Court ( Wight mem, J., and others), in a considered judgment, held, that as the contractors were acting under the authority of the Commissioners of Sewers, and bond fide acting for the purpose of executing the Statute 11 & 12 Vict. c. 112, they were exempted from all liability under § 128. IFAED V. LEE. (1857) 7 E. & B. 426 ; 26 L. J. Q. B. 142 ; 3 Jur. 357 ; 5 W. U. 403. Sub -contractor : Jointly Engaged. — The defendants, wlio were laying telephone wires underground, contracted with a plumber to connect the tubes through which the wires passed with solder, to the satisfaction of their foreman, at 12s. per joint. The plumber's employe worked under the supervision of the foreman, and was assisted by one of the defendants' men. The plumber, in order to obtain the necessary flare, plunged a benzoline lamp with a defective safety-valve into a cauldron of melted solder, and caused the lamp to explode. The cauldron had no screen, and the plaintiff, who was passing, was injured by the molten metiil. M.B.C. R 242 NEGLIGENCE Tlie plaiuUir InougliL an acLiuii in llic City of London Court to recover damages for personal injuries, and the deputy-judge held, that the plumber's employe was the servant of the defendants, and gave judgment against them for £25. The defendants appealed, and the Court ( WilU and Lawrancc, JJ.) held, that the defendants were not liable, as tlie negligence of the contractor's servant was collateral to the execution of the work which the contractor was employed by tliem to do, and the ai)i[)eal was allowed. Against tliis judgnu'ut the ]>laintiir appealed. The Court {Earl of Hahhurij, L.C., A. L. Smith and Vaufjlian Williams, L.JJ.) held, that the deputy-judge was right, as there was evidence that the defendants and the ]»luml»er were jointly engaged in the performance of the work under sucli circumstances as to render the defendants liable for the pluml»er's negligence, and even if the plumber were an independent con- tractor, tlie defendants, having authorized dangerous work on a l)ublic liighway, were Itound to take care that those who executed the work for them did not negligentl}- cause injury to passers-by. HALLWAY V. NATIONAL TELEFHOXE CO. (1899) 2 Q. B. 392; 68 L. J. Q. P.. lOlG; 81 L. T. 252; 47 AV. 1(. G58. -"' Volenti uon fit injui-ia." — The plaintiif, a carpenter, employed by a lirm of contractors in erecting seats in a place of public entertainment in course of erection, was injured 1)y a piece of iron, wliich fell from the roof, owing to tlie negligence of an employe of the defendants, who were contractors for the erection of the iron roof. In a remitted action the jury awarded the plaintiif £200 damages, and the County Court judge entered judgment accordingly, from which the defendants appealed. Haiolins, J., held, that the case was properly left to the jury, as the plaintiff', although aware of the danger, was compelled by the order of his (Muployer to work where he was working when he was injured, the maxim " A'olenti non fit injuria" did not apply, and he was entitled to recover. THEUSSELL v. HANDY SIDE. (1888) 52 J. r. 279 ; 20 Q. 13. D. 359 ; 57 L. J. Q. B. 347 ; 58 L. T. 344. NEW BUILDING Bedi-oom in lieu of Conservatory.— A builder deposited plans with an urban sanitary authority in 1888, which were approved, and he built a house in accordance therewitli. Part of the house consisted of a conservatory, constructed of wood and glass, on the NEW BUILDING 243 first floor, over a scullery and coal-cellar. Three years later the builder removed the conservatory, and sul)stituted, in its place, a bedroom, or Itox-room, of the same dimensions as the conservatory. The three external walls of the room were the same height as those of the conservatory, but were formed of bricks and mortar, and the roof was slated, and of the same height as that of the con- servatory. One wall, however, of the existing l)uilding was raised, from the level of the first floor, up to the heiglit of the three new external walls. No notice specifying the date on which build- ing operations were to be begun was given to the district surveyor. On hearing a complaint, under a l)y-law framed pursuant to the ruhlic Hcaltk Act, 1875, the justices dismissed the summons, on the ground that, as the new room did not occupy greater space than the conservatory, the defendant did not make an addition to an existing building, within the meaning of a local improvement Act. The local authority appealed, and the Court {Huddkston, B., and Grantham, J.) held, that the mere fact that the bedroom occupied no greater space than the conservatory, did not necessarily prevent its being an addition to an existing building, and they sent the case back to the justices. ME ADO WS V. TA YLOR. (1890) 54 J. P. 757; 24 Q. B. L>. 717; ^'d L. J. M. C. 99 ; 62 L. T. 658. -Bricked-in Boiler. — The owners of a brewery removed a boiler on the premises, and erected a larger boiler built over with brick and sunk in the ground. Part of the boiler stood 3 feet 9 inches above the ground. It was not built on the site of the old boiler, but the flue was connected with the old chimney. The owner was summoned for building over an open space without giving notice to the local authority, contrary to a by-law. The magistrate held, that the boiler in question was not a new building within the meaning of the by-laws and § 175 of the Puhlie Health Act, 1875 GERY v. BLACK LION BREWERY CO. (1891)55 J. P. 711. Coffee Stall. — Under the Metropolitcui Building Act, 1855, every building was required to be " inclosed with walls constructed of brick, stone, or other hard and incombustible substances." A coffee stall was held to be a "new building," of which it was necessary to deposit plans. OB WELL V. WILLESDEN LOCAL BOARD. (1891) Times, December 2; Local Government Chronicle, p. 996. •J 4 4 NEW BUILDING Constructed with Materials ^of Old Building pulled down. — The owner ui' certain premises pulled down a stable in a yard at the rear, and erected a stable of smaller dimensions but higher in another part of the same yard, making use of the old materials and the boundary wall. On hearing a summons by the local authority against the owner, for not having obtained permission to build, the justices held, that the building was not a new building. On appeal by the local authority, the Court (Coleridge, C.J., Brett, Keating, and Denman, JJ.) held, that the new stable was a " nev) hidldiny " within the meaning of the Local Gocernment Act, 1858, and the by-laws made thereunder. EOBBS V. DANCE. (1873) L. 11. 9 C. P. 3U ; 43 L. J. M. C. 21 ; 29 L. T. G87 ; 22 W. K. 90. Notice. — The owner of certain premises erected on a portion of the site thereof, upon which formerly a stable or other building not used for human habitation stood, a house of six storeys, 56 feet in height. The building was commenced without notice to, or deposit of plans with, the local authority, as required by their by- laws. The owner was allowed to complete the new house, and it was in fact completed in April, 1901. On November 2, 1901, notice requiring the owner to show cause why it should not be pulled down was served upon him, and in default of his appearing, an order was made requiring him to pull down the house. He neglected to comply with this order, and was duly summoned and convicted of an oiience under the by-law. On a case stated, the Court {Lord Alverstone, C.J., Wills and Channell, JJ.) held, that the local authority had power to order the demolition of the house, although no plans had been deposited, and the local authority, consequently, have not disapproved plans of the build- ing ; and that their power to order demolition does not cease on the expiration of six months from the date of completion. FAIBBBA,S>S V. CAN T EBB U BY COBBOBATION. (1902) 67 J. P. 181 ; 1 L. G. II. 181. One Month's Notice. — A building owner erected certain premises without giving one month's notice of his intention to do so, and submitting plans to the district surveyor, as required by a certain Ijy-law. The building owner was summoned for penalties, pro- vided for by another by-law, and he contended at the hearing, that, as the work done consisted in merely raising old walls a storey higher, he was not within the by-law, and he stated that he had submitted to the surveyor the plan which had been NEW BUILDING 245 rejected, only in conrtosy. Tlie ma8 of the Metro2wlitan Buildinr/ Act, 1855, to the district surveyor. The company took tolls for the passage of barges along the canal, and it was agreed by the tenants of the building in question that the wood, chopped and distributed by them, should lie brought to the wharf in barges along the company's canal. The magistrate con- victed the company, and imposed a penalty under § 41 of the Act, from which conviction they appealed. The Court (Pollocl; P., and Kennedy, J.) held, on a case stated, that the building was not used for the ]iurposes of the canal, within the meaning of § 6 of the 3fcfropolitan Bvilding Act, 1855, 246 KEW BUILDING and, therefore, that the notice required l)y § 38 onglit to have been given. COOLE V. LOVEGliOVE. (1893) 57 J. P. 647; 2 Q. B. 44; 62 L. J. M. C. 153 ; 5 E. 418 ; 69 L. T. 19 ; 41 W. R. 570. NEW STREET Approved Plan. — The owner of a plot of land on which he proposed to erect eight houses, deposited plans, &c., thereof and a proposed new street, with the local authority, and gave due notice of an intention to build, in accordance with a by-law. Another by-law required notice, &c., to be given of every proposed new street, l)ut the owner did not give any notice or lodge plans under tliat by-law. In due course the plans sul)mitted were approved and six of the houses erected. Some years later the owner .was summoned and convicted of forming a street less than 30 feet in width as required by the by-laws. On appeal, the Court {Lord Coleridfje, C.J., and Manisty, J.) quashed the conviction, and held, that the local authority should have satisfied themselves before sanctioning the plans. THOMPSON V. FAILSWORTH LOCAL BO ABB. (1882) 46 J. P. 21. To Artisans' Dwellings. — The owner of a i)lot of vacant land, situate ])ehind two houses giving on to a certain street, began to erect tliereon two ])locks of artisans' dwellings capable of accom- modating 150 tenants. A passage was formed leading out of the street and passing between the two houses therein, and separating tlie two l)locks of dwellings. It was 200 feet long, 20 feet wide, and closed hy gates at the entrance thereto. It was for the use of tlie tenants of the dwellings, which contained a number of sets of apartments entered off common staircases. Tlie magistrate, on hearing a summons against the owner for forming a street intended for foot traffic without the consent of the London County Council, contrary to § 8 of the MetmpoUs Management Act, 1882, held, that tlie passage was not intended to be a street for traffic witliiu the meaning of the section, and dismissed the summons. On a case stated, the Court (Wills and Wright, JJ.) affirmed the decision of the magistrate. BONBON COUNTY COUNCIL v. BAVIS. (1895) 59 J. P. 583; 64 L. J. M. C. 212; 15 11. 509; 43 W. li. 574, NEW STREET 247 ^To Artisans' Dwellings only. — The respondeat gave due notice to the lociil authority of an intentujn to build certain dwellings for artisans, and proceeded to erect the same, having an approacii 100 feet long l»y 16 feet wide from the nearest puldic street. It did not aft'oid a means of communication witli any other puldic street, and was formed for the use of the tenants of the dwellings only. On hearing a summons, taken out by the appellants under § 8 of the Metropolis Manacjement and Building Ads Amendment Act, 1882, the magistrate dismissed it. The local authority appealed, and the C(Kirt {Matheiv and A. L. Smith, JJ.) held, that the approacii had not been laid out as " a street for foot traffic onhj'' witliin the meaning of § 8, so as to require the sanction of tlie local authority, and they dismissed tlie appeal. METROPOTATAN BOARD OF WORKS v. NATHAX. (188(i) 50 J. r. -.02 ; r.4 L. T. 423; :34 W. IJ. 1G4. Builder's" Road. — A ])uilder erected certain houses, and formed drains therefrom to tlie boundaries of their respective fore-courts. The road is what is ordinarily known as a builder's road, the bottom ])eing well made and was coated with gravel autl ballasted. The footpaths were kerbed, but not flagged. The road was lighted by the parish and opened for vehicular traffic, but had not been taken over as a public road ; and the houses on either side were not completed. The vestry made branches from the drains into their sewer in the centre of the road, and for that purpose opened tlie road and footway. The builder was summoned to repay the cost to the \'estry, and the magistrate dismissed tlie summons on the ground that § 78 of the Metropolis Manaijemcnt Act, 1855, did not ai)ply to the facts of the case. The vestry appealed, and the Court {Lord Coleridge, C.J., and Matheir, J.) held, that the road was not the less a street, within the detinitions of § 250 of the Metropolis Management Act, 1855, and § 112 of the Metropolis Local Management, ci'c, Art, 1862, because it came within the definition of a new street in the latter section ; that § 78 of the Act of 1855 applies equally to streets and to new streets ; and that, in view of the definition of the word "pave" in § 112 of the Act of 1802, the road in question was paved. The vestiy, therefore, were entitletl to reco\er the expenses they incurred. HAMPSTEAD VESTRY v. HOOPEL. (1884) 15 Q. ?>. D. 652. -Buildings along Country Lane. — The owner of certain land, not previously liuilt upon, and situate on one side of what was formerly a country lane, proposed to Iniild thereon ; and submitted plans for 248 NEW STRI-:E'i' the apinovul of the local authority, as required by their by-laws. The local authority refused approval, because the proposed houses, when built according to tlie plans, would extend beyond the build- ing line defined l)y the authority. For many years previously, tht^ local autliority liad lighted, sewered, channelled, and maintained llie lane. Of the total number of eighty-seven houses in the lane, sixty-two had been erected within the previous ten years. Tlie owner sought an injunction to restrain the local authority from interfering with tlie proposed buildings, and, by consent, a R])ecial case was stated nnder Order XXXIV. Fry, J., held, that tlie lane was not a new street, that the local authority were not entitled to disapjirove tlie plans because the intended line of l)uilding was too near the lane, and that they were not entitled to ])ull down the new buildings in course of erection. The local authority appealed, and the Court (Jcssel, 3fJi., Brett and Cotton, L.JJ.) held, reversing the decision of Fry, J., that the words " new streets " in § .34 of the Local Government Act, 1858, are not confined to streets made for the first time out of grass or vacant land, l)ut apply to an old country road or lane, which, by being built upon, has gradually become a street in the popular sense, though it was previously a street witliin the interpretation clause of the ruhlic Hecdth Act, 1848 ; that the local authority had ])ower to make l)y-laws to regulate the position of buildings in sucli a street with a view to keeping it of a certain width (21 Ch. D. 621). From this decision the owner appealed, and the House of Lords (Earl of Selhorne, L.C., Lords Blacl-hcrn and FitzGerald) held, that the words "new streets" in the section are not confined to streets formed for the first time, but apply also to an old highway, formerly a country lane, which has long been a street within § 4 of the PuUic Health Act, 1875, and which, by reason of Ijeing built npon, has become a street in the popular sense of the word. But held (reversing the decision of the Court of Appeal), that " widtli " in § 157 of the Art and in the by-laws, meant width of roadway, and not width from house to house on opposite sides ; and, tliere- fore, the local autliority were not entitled nnder any by-law to disa])i)rove of or pull down any houses erected in the new street, on the ground that the buildings were too near the roadway. IWBINSON v. LOCAL BOARD OF BABTON-ECCLES. (1884) 48 J. P. 276 ; 8 App. Cas. 798 ; 53 L. J. Ch. 226 ; 50 L. T. 57 ; 32 W. E. 249. Control over Soil of Vacant Space.— In May, 1898, the respondent began the erecti<^n of a shop on the same side of NEW S'I'ltEE'l' 249 the road, l)ut distant 40 feet from the end of a row of houses. Forty feet is the statutory widtli of a street intended for caniage traffic. A side door opened and windows lo(jked into the space intervening between the respondent's shop and tlie row of houses, and the only way of approaching stables built Ijy the respondent, at the l>ack of the shop, was l)y an entrance 80 feet down the intervening space. The intervening space was marked as a ])roposed new street on the estate building plan, and was 90 feet in length, but no evidence was given to sliow that the owner of the estate had agreed to leave that space open. Nothing had been done by the respondent to form a street, except building the shop and stable as stated. The magistrate found, as a fact, that a new street for carriage traffic liad been begun to be laid out, but that, though the respondent erected the shop and stable in the hope that it would be a street, he did not commence to form it, on the ground that he had no control over the roadway of the alleged street, and lie dismissed the information. The Court {Lawrance and ChanncU, JJ.) held, that as the respondent had no control oxer the soil of the vacant space, he did not l)y erecting the shop and stable commence to form a street, within the meaning of § 8 of the London Building Act, 1894. LONDON COUNTY COUNCIL v. DIXON. (1899) 63 J. P. 390; 1 Q. B. 496; 68 L. J. Q. B. 526; 80 L. T. 232 ; 47 W. E. 521. Country Road. — An ancient public carriage-road, 581 yards long, was of a width \-arying from 19 feet to 28 feet, and was bounded for the most part by hedges. There were brick-fields extending 485 feet on one side, and the defendants, who owned the brick-fields, pro])osed to erect new buildings, extending for a distance of 233 feet along the lane, opposite to the brick-works. North, J., held, that l»y tlie erection of tlie new buildings, the lane between tliem and tlie existing buildings would become a " new street," within the meaning of § 63 of the Toivns Improve- ment Clauses Act, 1847, and subject to the provisions of that section as to width, and granted an injunction, restraining the defendants from building so as to make or lay out the lane as a new street less than 30 feet wide. ATTORNEY-GENEEAL v. RUFFOBD cO CO., LTD. (1899) 63 J. P. 232 ; 1 Ch. 537 ; 68 L. J. Ch. 179 ; 80 L. T. 17; 47 W. E. 405. Cul-de-sac. — One of the defendants owned a field behind a row of liouses, frontinii on to an old road. A lano, 17 to 20 feet 250 NEW STKEET wide and about 100 feet loug, gave access to the back premises of the houses, aud also led to the gate of the said field. The field was bounded by an old footway, aud certain land, the owner of which had, with the consent of the plaintiffs, constructed a new street, which connected the old footway with the old road. In giving their consent they required the owner to leave available a strip 40 feet in width of the land adjoining the old footway, so that a road niiglit be formed in the event of the field being built upon. This defendant applied for permission to lay out a new street to form a cul-de-sac 40 feet in widtli, but the only approach thereto from one end was through the lane, which was from 17 to 20 feet wide. The plaintiffs rejected the plans. Subsequently the first defendant's plans were passed, subject to certain amendments, wliereljy the new street would be 40 feet for the whole length, and he then formed and drained a portion of the road. He also let to the second defendant land abutting on the new street for the purpose of building thereon forty houses, but the plaintiffs rejected tlie plans of the latter as contrary to the by-laws, tlie road being unfinished aud in part less than 40 feet in width. The second defendant proceeded to Imild, aud the plaintiffs moved for an injunction. Noi'th, J., held, that the by-law which prevented a landowner from " constructing " a new street upon his land, until lie had pro- vided an " entrance " thereto of the specified width, was reasonable, and intra vires, even though such entrance could only be made iipon the land of another person, over whom he had no control ; also, that the "construction " of a new street included tlie l)uilding of the houses abutting on it, aud, consequently, that tlio landowner could not build until an adequate entrance had been proNidcd. HENDON LOCAL BOAJ^I) v. POUNCE. (1890) 42 Ch. D. G02 ; 61 L. T. 465 ; 38 W. E. 377. Cul-de-sac. — The defendant, owner of a vacant plot of land formerl}' used as private gardens, began to build thereon a liouse fronting to a lane 18 feet wide and 175 feet long, which ran at one end into a highway, and formed a cul-de-sac at the other end. The plaintitfs had previously refused to approve the plans of three houses, to be used as shops, submitted to them by the defendant, on the ground that they contravened their by-laws as to the laying out of new streets. The end house of the three houses was a corner house, and abutted on the lane where it joined tlie highway, but had no shop window fronting the lane. The plaintiffs sought an injunction to restrain the defendant from NEW STREET 251 laying out or constructing a new street of less width than 36 feet, as required by their by-laws. Lawrance, J., held, tliat the defendant was not laying out a new street, and gave judgment for him. The plaintiffs appealed, and the Court {Lord Usher, M.B., Lfypca and liifjl'ii, L.JJ.) held, that the defendant was not laying out a new street along the lane within the meaning of the by-laws with respect to new streets made \mder the Public Health Act, 1875, § 157, and dismissed the appeal. ST. GEOBGE'S LOCAL BOARD v. BALLABD. (1895) 59 J. P. 182; 1 Q. B. 702; 64 L. J. Q. B. 547; 14 E. 293 ; 72 L. T. 345 ; 43 W. E. 409. " Laying out." — Prior to the Devoiqjort Cwporation Act, 1900, tlie defendants began to erect houses upon a triangular plot of land of whicli they were the owners, and two sides of which abutted ui)on tlie pul)lic highways in the borough. Plans had been deposited with, and all notices liad been given to, the rural authority under the by-laws, but although that autliority neither approved nor disapproved of the plans, they had instituted no proceedings for penalties, &c. The Devonport Corporation Act, 1900, transferred the previous rights of the rural authority, if any, to the plaintiffs, who did not take any proceedings before the justices for penalties, &c., but brought this action for (1) an injunction to restrain the defendants from continuing to erect the buildings without previously obtaining the corporation's approval of the plans, &c. ; (2) an order to the defendants to pull down, &c., the buildings ; (3) alternatively a declaration that the plaintiffs were entitled to pull them down. Joyce, J., held, that the defendants were not laying out the highways as new streets within the meaning of tlie by-laws ; tliat the by-laws could not be enforced by action for an injunction, but only by the special remedies provided, or by way of information by the Attorney-General; and tliat no such declaration as asked for ought to be made, DEVONPOBT COBPORATION \. TOZEB. (1903) 67 J. P. 269 ; 1 Ch. 759 ; 72 L. J. Ch. 411 ; 88 L. T. 113 ; 52 W. R. 6 ; 1 L. G. P. 421. " Laying out." — The lessee of a plot of land, with a right of way over the adjoining road, wliich was for a considerable distance only 15 feet wide, commenced to build thereon two houses, but left the road, over which he had the right of way, the same width as formerly. The local authority sumiuoned him for laying out a 252 NEW STREET new street as a carriage road less than 36 feet in width, contrar}'^ to their by-laws, made under the PuUic Health Act, 1875, § 157. The lessee contended that he had no power over the land adjoining his plot, that the road could not be widened without acquiring the land on the opposite side, and that the road had not been dedicated to the public, and was used as a private carriage way, liaving gates at each end. The justices convicted the lessee, who appealed. The Court {Bay and Laiorancc, J J.) held, tliat commencing to erect tlie houses on the piece of ground adjoining the road did not amount to laying out the road as a new street, and they quashed the conviction. GOZZETT V. MALDON URBAN ^ANITAIIY A IJTHO- PJTY. (1894) 58 J. P. 229 ; 1 Q. B. 327 ; 70 L. T. 414. Leading to Vacant Ground. — A firm of Iniilders proposed to form a road of a certain length, leading to a piece of vacant ground, wliore it would ])e stopped by a certain barrier or fence. The ^letropolitan Board of Works did not give their consent to the formation of the road, and summoned the builders for laying out a street, for the purpose of carriage traffic, with only one entrance, contrary to § 98 of the Metropolis Local Management, &c.. Act, 1862, and by-laws thereunder. At the hearing of the sum- mons the builders contended that the section did not require two entrances, and the magistrate dismissed the summons. The Board of Works appealed, and the Court {Grove and Lopes, J J.) held, in a considered judgment on a case stated, that sucli streets must be of ilio widtli ])rescribed by the section, and be open at both ends. METIIOPOLITAN BOARD OF WORKS v. STEED BROTHERS. (1881) 46 J. P. 199 ; 8 Q. B. D. 445 ; 51 L. J. M. C. 22 ; 45 L. T. 611 ; .30 W. B. 891. Person who lays out. — A local authority, pursuant to the Public Health Act, 1875, § 157, made a by-law requiring " every person who lays out a new street " to form it at least 18 feet wide, if it be a Ijack street. On ]\Iay 20 the owner of a building estate gave notice to the local authority of his intention to lay out certain new streets on the estate, and submitted a plan thereof. On the same date a builder employed by the owner gave due notice of his intention to dig the foundations for four cottages on one side of a private street on the estate, only 1 2 feet wide. On June 25 the local authority gave notice to the owner that they disapproved of the plan of the NKW STBKKT 253 proposed new streets submitted, because the street already referred to was only 12 feet wide; and on June 26 the local authority gave notice to tlie builder that they disapproved of the plans of the cottages. The builder, h»nvever, proceeded with the works. On hearing a summons by the local authority against the builder, he justices dismissed it. On a case stated, the Court (Pollock and Hawkins, JJ.) held, tliat a person who, in execution of liis contract, simply builds along the line of street already laid out by tlie building owner, is not a " person wlio lays out a new street " within the meaning of the by-law. SUNDERLAND COliPOMATlUN v. BllOWN. (1880) 44 J. P. 831 ; 43 L. T. 478. ftuadi-angle in a Block of Flats. — The owner of certain laud began to build a block of Hats, intending to lay out the centre of the block as a garden, with a foot and carriage way around to give access to the flats. This open space was entered by only one opening under an archway. The owner was summoned for unlawfully commencing to lay out a new street without the consent of the Loudon County Council, and the magistrate found that the roadway around the flats was a street, and convicted the owner. On a case stated, the Court {Grantham and Lamrance, JJ.) held, that the quadrangle of the block of flats was not a " street," and they qLuashed the conviction. WOOD V. LONDON COUNTY COUNCIL. (1895) 59 J. P. 615 ; 64 L. J. M. C. 276 ; 73 L. T. 313 ; 44 W. K. 144. Rebuilding on Old Site.— The owner of certain premises, with a shop fronting on a certain lane, gave notice to the local authority of his intention to lay out a new street, and submitted a plan thereof, which was approved. The plan involved the setting back of the shop, &c. The owner, however, subsequently abandoned the idea of forming the new street, and put in a new shop front, and rebuilt the front wall on the old site. The local authority summoned the owner for breach of one of their by-laws made pursuant to § 157 of the FuUic Health Act, 1875, wdiich required new streets to be of a certain width, and the justices were of opinion that a new street had not been laid out, and they dismissed the summons. On a case stated, the Court (Hiiddlcston, B., and Wills, J.) held, that the respondent had done notliiug contrary to the by-law, and had committed no oflence. SUNDERLAND COllPORATION \. SKINNER. (1889) 53 J. P. 560. 254 NEW STREET Right Angle formed. — The owner- of certain land applied, under the Loiuhni liuUding Act, 1894, for permission to construct thereon a new street for carnage traffic. The London County Council refused tlieir sanction, Itecause tlie new street, which was to be in the form of a right angle, would not aflbrd direct com- munication betw^een two streets formed for carriage traffic. The owner appealed, under § 175 of the Act, unsuccessfully. The Court {Day and PhiUimore, JJ.), on a case stated by order of a judge in chambers, held, that the question whether a proposed new street did or did not afford such direct communication was a question of fact, with the decision of which they would not interfere. WOODHAM V. LONDON COUNTY COUNCIL. (1898) 62 J. P. 342 ; 1 (,). B. 863 ; 67 L. J. Q. B. 707 ; 78 L. T. 553. Summons out of Time, — A firm of l)uilders, after due notice- given to the local surveyor in JNIay, 1883, erected a Jiouse and stables on a plot of land. The flank wall of the staldes was a less distance than 20 feet from the centre of the roadway. The district surveyor attended and inspected the works from time to time, and made no objection to the position of the wall refen-ed to. In due course he was paid his fees, which amounted to £5 5s. No notice was given of any l)reach of the by-laws to the Metro- politan Board of "Works mitil November 26, 1883. A summons was taken out in March, 1884, charging the builders witli laying out a new street of less than the prescribed width contrary to §§ 98 and 107 of the Metropolis Local Management, cC'c, Act, 1862. The magistrate held, that the summons was out of time, as the Board of Works were affected liy the notice to their surveyor, and the summons should have been brought within six months, pursuant to § 107 of the Act. METllOrOLITAN BOARD OF WORKS v. LATHE Y. (1885) 49 J. r. 245. NOTICE To abate Nuisance. — Tlie sanitary inspector of a local authority took out a summons, under § 128 of the Fiihlic Health {London) Act, 1891, addressed to " the owner" of certain premises, re(j[uiring him to abate a nuisance. The copy summons was handed to a person serving in a shop on the premises. No one appeared for the defendant, who was imknown. The magis- trate held, that the summons was not a " notice, order, or other NOTICE 255 document," wiLliiu tlic uioaiiiuj,' of § 128 of tlio Act, lliat it liad not l)ecii properly served, and that it ought to lia\-e been addressed to the defendant by name. Accordingly he dismissed the summons. On a rule calling upon tlie magistrate to sliow cause why lie should not hear and determine the matter, the Court (Charles and Collins, JJ.) held, that such a summons is a " document " within the meaning of § 128 of the Public Health {London) Act, 1891, and may, therefore, be served by delivery to some person on the premises, and the rule was made absolute. n. v. MEAD. (1894) 58 J. r. 448; 2 Q. B. 124; 03 L. J. M. C. 128; 10 E. 217; 70 L. T. 766; 42 AV. R 442. -Of Building. — By-laws made l)y a local authority under the Pahlic Health Acts, 1848 & 1858, provided that every person in- tending to build should give a week's written notice of such intention to the town surveyor, and submit at the same time detail plans and sections of every floor of the proposed building. A builder erected certain temporary structures, not intended for residences, without giving notice, &c., and was summoned and convicted by tlie justices. The Court {Denman and Lindley, JJ.), on a case stated, held, that the by-laws were unreasonable, if intended to apply to such structures, and were, therefore, bad. FIELDING v. BHYL COMMISSIONERS. (1878) L. R. 3 C. P. D. 272 ; 38 L. T. 223; 26 W. R. 881. Of Building. — The Commissioners of Lieutenancy of the City of London, under 1 Geo. IV. c. 100, § 39, and 17 tO 18 Vict.c. 105, § 2, erected certain buildings for the custody of stores and arms of the militia, without giving a building notice to the district surveyor. On hearing a summons, taken out by the surveyor, the magistrate convicted the Commissioners, who appealed. The Court {Lord Campbell, G.J., Coleridge and Wightman, JJ.) held, that the build- ings were within the exemptions of § 6 of the Metropolitan Building Act, 1855, as " employed for H.M. use or service," and the conviction was quashed. R. V. JAY. (1857) 8 El. & B. 469. Party Structure. — The plaiutilf was sub-lessee of a lessee from the Crown, under a long lease, of land on which certain premises had stood. The defendant was lessee, with eleven years to run, of the adjoining premises. The sub-lessee agreed with the lessee from the Crown to lease the land for ninety-nine 256 NOTICE veai\s iiL £~)oO per annum, and to cvecl Uieveon certain buildings at a cost of not less tlian £100,000. The plaintilt' entered upon the land, and proceeded to erect the buildings thereon. Tlie defendant, with a view to execute certain works on the wall dividing his premises from those of the plaintiff, gave to the Crown lessee the notice under § 90 of the London Building Act, 1894. The defendant, as building owner, obtained an award in his favour in an arl)itration under the Act between him and the Crown lessee, and commenced to carry out the works specified. At the date of the award the plaintiff had erected the stipulated l)uildings, ])ut the lease was not granted until afterwards. The plaintifl' obtained an interim injunction restraining the defendant from raising the wall in question, and, on motion to continue the injunction, Chitti/, J., held, in a considered judgment, that the word " owner " in § 5 (29) and (32) and in § 90 of the London Buildinfj Act, 1894, as therein defined, includes a person who has entered on lands and erected buildings under an agi'eemeut for a lease, although no lease had been executed, and although the agieemeut is expressed not to operate as a demise, but only gives a right to enter upon the premises for the purpose of performing the agree- ment. Such person, as an "adjoining owner," is entitled to receive from an adjacent " building owner" the notice, &c., required by § 90 of the Ad, and it is not sufficient to give notice to the intending lessor. LIST v. THAllP. (1897) 61 J. P. 248; 1 Ch. 260; 66 L. J. Ch. 175; 76 L. T. 45 ; 45 W. R 243. Of Repairs. — The occupier of a house within the limits of the Metropolitan Building Act, 1855, employed a builder to replace the frame of the entrance door, which had become decayed, and to repair with old bricks the defecti\e brickwork on each side of the doorway. Tlie doorway was not thereby enlarged, but rather reduced, and the structure of the external wall was not in any other respect altered. No notice of the work had been given to the district surveyor, who summoned tlie builder under § 38 of the Act. The magistrate dismissed the summons, and the sur- veyor appealed. The Court {Lord Campbell, C.J., Coleridge, Wight- man, and Crompton, JJ.) held, that no notice was necessary, as the work was within § 9 of the Act, being " work done for necessary repair not affecting any external or party wall, in, to, or upon, any old building." BADGER V. DENN. (1858) 22 J. P. 129. NOTICE OF BUILDING WOllKS 257 NOTICE OF BUILDING WORKS -Workshop. — 'I'lit; dock coni|iany were sinjimoiicd by the Cor- poration of Bermondsey for executing certain building works witliont giving seven days' notice to the corporation in accordance with the provisions of § 76 of the Metropolis Manacjeraent Act, 1855. By the dock company's Act, 1894, they were empowered to execute certain works, and it became necessary in order to do so to demolish a certain workshop and erect another in its place. No notice of intention to erect the latter had Ijeen given by the company to the Corporation. On a case stated by a metropolitan police magistrate, the Court {Lord Alverstonc, G.J., Lcnvrance and Kennedy, JJ.) held, in a considered judgment, that the interference and control involved in § 76 of the ^fctrojjolitan 3fanagcmcnt Act, 1855, was inconsistent with the powers conferred upon the dock company by their statutory authority, and that therefore there was no necessity for them to give notice to the local authority in respect of the new workshop. SURBEY COMMERCIAL DOCK CO. v. BERMOND- SEY BOROUGH COUNCIL. (1904) m J. P. 155; 1 K. B. 474; 73 L. J. K. B. 293; 90 L. T. 123 ; 52 W. E. 446 ; 2 L. G. E. 356 ; 20 T. L. E. 208. NUISANCE Building in Contravention of a Statute. — The defendant was indicted for causing a nuisance by erecting a house within 10 feet of a certain road, contrary to the provisions of 3 Geo. IV. c. 112, § 126, which prohibited buildings being erected within 10 feet of the road, and declared the footpaths to be part of the road. Such buildings were to be deemed nuisances, and two magistrates were empowered to convict the owners and occupiers, and to order the removal of the buildings. Tindal, C.J., entered a verdict for the Crown by consent, subject to a case. The Court {DcniiiaR, C.J., Parlx, Taunton, and Pattcson, J J.) held, that not- withstanding the specified liability of owners and occupiers, the person who erected or continued a building contrary to the Act miglit be indicted for a nuisance, and that an open shop was a building within the meaning of the Act. B. V. GREGORY. (1833) 5 B. & Ad. 555 ; 3 L. J. M. C. 25. Dripping Eave.^The defendants, in order to erect certain premises, cut otf the eaves of the adjoining building, and built a M.B.C. s 258 NUISANCE wall haviug a drip over the adjoining premises. In an action by the reversioner of the adjoining premises for injury to his reversion, tried by Croivder, J., a verdict was entered for the defendants. It was proved at the trial that the sum paid into Court more than covered the damages, and that the defendants continued to build after repeated notices from the reversioner ; but evidence offered to show diminution in value was rejected. On hearing a rule nisi, the Court (Jervis, C.J., Creswell, Williams, and Willes, JJ.) held, that as there might be repeated actions for continuing the nuisance, the evidence had been properly rejected. BATHISHILL v. REED. (1856) 18 C. B. 69G ; 25 L. J. C. P. 290 ; 4 W. E. 603. Erection of Equestrian Statue. — The Commissioners of Woods and Forests granted two building leases of two plots upon which the lessees erected two houses in the line of a new street formed by the Commissioners under statutory authority. The street was complete, and the space in front of the tw^o houses was left open, as shown on the plan annexed to the statute. The lessees filed a bill to restrain the erection of an equestrian statue in the centre of tlie open space, permission for which had been given to a com- mittee by the Commissioners, on the grounds that it would restrict the space, and diminish the value of the adjacent property, and be a public and private nuisance. Shadwell, V.C., granted an injunc- tion, but Lord Cottenham, L.G., dissolved it, and held, that the circumstances did not entitle the lessees to an injunction to restrain the erection of the statue. SQUIRE V. CAMPBELL. (1836) 1 My. & C. 459 ; 6 L. J. Ch. 41. Heap causing Horses to Shy. — The plaintiff was driving along a highway in a cart drawn by a horse wliich took fright at a heap of road scrapings and rubbish, placed Ijy the defendants upon certain vacant land adjoining the highway, their property, and the plaintiff was injured by the cart being upset. Tolloclc, B., excluded evidence, tendered on behalf of the plaintiff, at the trial of an action for damages, to show that several other horses shied at the heap of rubbish, and entered a nonsuit at the close of the plaintiff's case. The Court (Denman and Stephen, JJ.), on a motion to set aside the judgment of nonsuit, and to enter judgment for the plaintiff for £150, the agreed damages, held, in a considered judgment, that, if the heap was of such a nature as to be dangerous by causing horses passing on the highway to shy, it was a public nuisance, NUISANCE 259 and that the evidence showed that the lieap did, in fact, cause tlie horses to shy, and was, therefore, admissible. BIIO WN V. EASTERN & MIDLANDS HAIL WA Y CO. (1889) 22 Q. B. D. 391 ; 58 L. J. Q. L. 212 ; GO L. T. 2GG. Hoarding Creaking and Rattling. — Tlic plaintiff was owner in fee of a cottage with a window (nerlooking the defendant's land adjoining. In order to prevent the plaintift' from acquiring a prescriptive right to light, the defendant erected a hoarding to obstruct the liglit coming to the window. The plaintilf alleged that the hoarding stood on his property, and also that it was a nuisance by reason of its creaking and rattling, and he claimed a manilatory injunction. Fry, /., lidd, that, assuming that the hoarding was on the plaintiff's property, it was not of such a per- manent character as to injure the reversion, and disnfissed the action with costs. Eroni this decision the plaintiff appealed, and the Court (Jcssd, MM., Cotton and Lindlcy, L.JJ.) held, that the hoarding, not being of such a permanent character as to injure the reversion, tlie plaintiff could not maintain an action for trespass ; and that its erection on the plaintiff's land was too trifling an injury to entitle the plaintiff to an injunction, COOPER V. CBABTllEE. (1881) 46 J. P. 628 ; 20 Ch. D. 589; 51 L. J. Ch. 544; 47 L. T. 5 ; 30 W. E. 649. Mews. — The plaintiff and the defendant were adjoining lessees under tlie same grantor. In 18G8 the defendant, whose lease was a Ijuilding lease and of later date than the plaintiff's, began to build a mews, and on ]March 30 the plaintiff gave notice that he would apply for an injunction if the work was persisted in. Notwithstanding, the defendant hurried on the work so that on April 13 the building was 23 feet high, and overlooked the plaintiff's garden, and obstructed the access of light to certain of the plaintiff's windows. On April 18 he filed a bill. The plaintiff admitted that he had no prescriptive right to ancient lights, and Malms, V.C., refused relief in respect of the trivial interference with light and air. The question remained whether the bill could be sustained on the grounds of nuisance and injury to the garden, under the ordinary covenant for quiet enjoyment. Malins, V.C, held, that the plaintiff was not entitled under the covenant for quiet enjoyment to restrain the lessor, or persons claiming under him, from liuilding on the adjoining land so as to obstruct the access of light and air to the garden. It is a rule of law that 260 NUISA^X'E there can be uo prescription for an easement of liij^ht and air over open land. rOTTS V. SMITH. (1868) 18 L. T. 029; IG W. l\. 891; 38 L. J. Ch. 58; L. l\. G K(i. 311. -Privies. — Tlie owner, witliin tlie meaning of the Public Health Ad, 1875, of certain prendses, was summoned f(jr failing to obey a notice to abate a nuisance caused by a defective privy and ashpit therein. The justices, under § 9G of the Act, ordered the owner to fill up the ashpit, to abandon the privy, and to construct a proper and efficient pail-closet in lieu thereof. On a rule for a certiorari to quash the order, the Court {Pollock, B., and Stephen, J.) held, that the order was bad, inasmuch as the justices had no power under § 9G to order the erection of the pail-closet. EX PARTE WHITCHURCH. (1880) 46 J. P. 134; 7 Q. B. D. 534; 50 L. J. M. C. 99 ; 45 L. T. 379 ; 29 W. E. 922. Privy. — The owner of certain premises erected a pri\'y in the rear thereof. At the trial of an action by the adjoining owner for a nuisance, it appeared that the privy was no nuisance until the adjoining owner opened a v/indow in a blank wall immediately over the privy ; and Lord Ellenborough held, that the adjoining owner, having brought the nuisance on herself, liad no cause of action. LA WHENCE X. OBEE. ■ (1814) 3 Camp. 514; 14 IJ. E. 830. Projecting Cornice. — Tlie oNNiier of certain premises caused a cornice to be built thereon wliich projected over the garden of the adjoining premises, whereby rain-water flowed into tlie garden and damaged the same, and incommoded the plaintiff in the possession and enjoyment thereof. The jury found a verdict for the plaintifl". On hearing a rule, the Court (Coltman and Maide, JJ.) held, that the erection of the cornice was a nuisance from which the Court would infer injury to the plaintiff, without proof that rain had fallen between the period of the erection of the ctjrnice and the commencement of the action. FAY V. PRENTICE. (1845) 1 C. V>. 828 ; 14 L. J. C. P. 298 ; 9 Jur. 877. Projecting Lamp. — A heavy lamp projected from the defend- ant's house, of which he v/as the lessee, several feet ».iver the NUISANCE 201 footpath. An employe of the defendant was engaged in Ijlowing water out of the pipes in the lamp, wlieu, owing to wind and tlie wet pavement, the ladder, upon which he was mounted, slipped. To save himself from falling, the employe caught hold of the lamp-bracket, which, owing to its fastening being in a somewhat decayed state, was unable to sustain him, and it fell, injuring the plaintiff. Tlic defendant had a short time previously employed a tradesman to put the lamp in proper repair. In an action by the plaintiff for damages, the jury found that the tradesman liad been negligent ; that the defendant had not been personally negli- gent; that the lamp was out of repair through general decay, l)ut not to the knowledge of the defendant ; that the cause of the fall of the lamp was the slipping of the ladder ; and that if the lamp had been in good repair, the slipping of the ladder would not have caused it to fall. On these findings, Qtuim, -/., entered a verdict for the plaintiff. On hearing a rule nisi, the Court {BlacUurn, Lush, and Quain, JJ.) held, that the plaintiff was entitled to a verdict, and that the rule must be discharged. TABBY v. ASHTON. (1876) 40 J. P. 439; 1 Q. B. D. 314; 45 L. J. Q. B. 200 ; 34L. T. 97; 24 "W. B. 581. -Prospect intercepted. — The defendant proposed to erect certain l)uildings which would have the eflect of intercepting the prospect from the gardens of Gray's Inn, and the Benchers sought an in- junction, founded, not on nuisance, but on long enjoyment of the right to the prospect. Lord Hardivid-e, L.G., held, that an in- junction could not 1)6 granted before the defendant's answer; it is otherwise in a plain case of waste or nuisance, Imt there is no rule of connnon law which says that it is a nuisance to build, so as to interfere with another's prospect. A.-G. v. DOUGHTY. (1752) Yes. Sen. 453. -Sty for Pigs. — The plaintilf and tlie defendant were adjoining occupiers, and the defendant erected in his garden, and close to the plaintiff's dwelling, a sty for hogs. In an action against the defendant, tried at the Norfolk Assizes, for a nuisance in that the sty corrupted the air and diuiinislied the enjoyment of the house, the defendant was found guilty, and mulcted in damages. On motion to arrest judgment on the ground that the building of the house for hogs was necessary for the sustenance of man, and that one ought not to have so delicate a nose that he cannot bear the 262 NUISANCE siut'U of hogs, the Coiui dismissed the motion, and Itdd, that an action on the case Avas maintainable, as also iu respect of a lime- kiln the smoke from which entered the plaintiffs house. ALDBEUS CASE. (IGll) 9 Coke's Eep. 585; 2 Eolls. 141. Unstable Fence. — The defendant was tlic o\\ncr of a piece of ground fenced off from the highway, and the infant plaintiff, a boy aged four years, put one foot on the fence, and was about to put the other on when tlic fence fell on him and caused certain injuries. The jury found that the fence was very defective, but that it actually fell through the child standing partly or wholly upon it, l)ut not for the purpose of climbing over. Ridley, J., directed that judgment should be entered for the defendant. The ])laintiffs appealed. The Court {A. L. Smilh, Fughy, and Vauyhan Williams, L.JJ.) held, that the defective fence, being a nuisance, and the cause of the injuries to the plaintiff, tlic defendant was liable, and allowed the appeal. H AHOLD V. WATNEY. (1898) 2 Q. B. 320 ; G7 L. J. Q. P,. 771 ; 78 L. T. 788 ; 4G W. E. 642. Public : Removal of Ashpit Refuse. — A farmer made a contract with a certain corporation, whose district comprised several town- ships, for the removal of ashpit refuse and night-soil. Pursuant to the said contract, he deposited night-soil and refuse upon a part of his farm, 40 yards from the road, to the extent sometimes of forty cart-loads a day, wliich, it was alleged, ga\'e off a stench dangerous to health. The plaintiffs moved for an injunction to restrain the fanner. It was ol)jected for the defendant that the sanction of the Attorney-General had not been obtained, and therefore the action nmst fail. Subsequently the sanction of the Attorney-General was obtained. Stirling, J., held, that the proceedings contemplated in § 107 of the PuUic Health Act, 1875, must be ordinary pro- ceedings known to the law, and that, in the absence of special damage, a local authority cannot sue in respect of a public nuisance, except with the sanction of the Attorney-General, by action in the nature of an information. WALLASEY LOCAL BOARD v. GRACE Y. (1887) 51 J. P. 740 ; 36 Ch. D. 593 ; 53 L. J. Ch. 739 ; 57 L. T. 51; 35 W. E. 694. OLD MATERIALS 263 OLD MATERIALS Pui^chase of. — The Coimnissioners of Pultlic Works invited tenders by public advertisement for "the old Pm-tland stone, Bramlcy Fall stone, and rough ridiUc" of tlie old bridge at West- minster. A firm of contractors odered "/or Westminster Bridge stone— dd. jm- c. foot for areh stone, -id. ditto ditto ditto spandril ditto, Qd. ditto ditto ditto Bramley Fall ditto" The secretary to the Commissioners authorized the engineer to accept this offer. Some stone was delivered under the contract, but the defendants refused to deliver the remainder, and the contractors sought specific performance, rioniilhj, MM., held, that the contract was for the purchase of all the stone of that quality, and granted a specific performance and an injunction against the defendants. THOBN OR VFNN v. THE COMMISSIOXEBS OF PUBLIC WOFJuS. (1863) 32 Beav. 490. OLD SITE The owners of certain laud, on which formerly stood six dwelling-houses about 28 feet in height, proposed to erect thereon two factories, each 52 feet high. The district surveyor had certi- fied a plan, pursuant to § 13 (5) of the London Building Act, 1894, showing the extent of the said dwelling-houses. The plans showed that the external walls of the factories would be in the same line as the external walls of the dwelling-houses, but they were some feet less than the prescribed distance {i.e. 20 feet) from the centre of the roadway. The factories occupied no more land than the old buildings. On failing to comply with a notice under § 3, requiring them to set back the factories, the owners were summoned, but the magistrate dismissed the complaint. On appeal, the Court {I^ord Alverstone, C.J., Wills and Channell, JJ.) held, that the owners were entitled to erect the factories proposed as coming within the proviso to § 13 (5) of the London Building Act, 1894. LONDON COUNTY COUNCIL v. BATMAN (1903) G7 J. P. 285 ; 1 L. G. E. 519. OPEN SPACE The owner of a hotel, liuilt before the formation of a certain local authority, pulled down a coach-house and stables, in the rear, below the ground floor, and built upon the site a three-storey building, which could only be entered by means of a passage from 2G4 • oiPEN si'Acri the staircase of the main building. On an information against tlie owner, for not leaving an open space equal to one-third of the area of the ground on which the dwelling-house stood, contrary to a by-law made pursuant to 21 & 22 Vict. c. 98, § 34, the justices convicted him. On appeal, the Court (Pollock, C.B., Martin and Bramioell, BB.) held, that the new erection was not a "new" dwelling-house, but merely an addition to an old one, and they quashed the conviction. SniEL v. SUNDERLAND CORPORATION. (1861) 6 H. & N. 796 ; 30 L. J. M. C. 215. OPEN SPACE OF NOT LESS THAN 100 FEET A builder was charged by information with ha^'ing erected and used a dwelling-house, having in the rear or .side thereof an open space of less than 100 feet, such building being more than three storeys in height above the level of such open space, and having a distance across such space between the said building and the opposite property of less tlian 25 feet, contrary to the by-laws made by a local authority under § 34 of the Local Government Act, 1858. 'I'lie main building in question was more than three storeys high, and at the back of it there was also erected a one-storey building. P.oth buildings together covered the whole of the space surrounded by the adjoining houses, with this exception, that the smaller building was 4 feet narrower than the larger building, so that a strip of 4 feet in width and 25 or 26 feet in depth remained. The builder was convicted, and he appealed. The Court {Erlr, C.J., Williams, Willcs, and Keating, JJ.) held, that the required 25 feet was to be measured at any and every part of the building to the opposite property ; it is not sufficient tliat at some points there was a distance of 25 feet between it and the opposite property. ANDERTON v. BIRKENHEAD COMMISSIONERS. (1863) 32 L. J. M. C. 137. " OPPOSITE PROPERTY" A building owner erected a dwelling-house 25 feet in height. In the rear thereof, and exclusively belonging thereto, there was an open space of 700 square feet, and the distance across such open space, between such house and the opposite property at the rear thereof, including the ^vidth of the street, was 52 feet. The land exclusively belonging to the house was bounded in the rear by a public street, and the distance across the open space lying "oiTOSiTE riiorERTY- * 265 betweeu the street and the house was 8 feet. Uu hearin<: an information against the owner iov a Ijreach of a Ijy-law refiuiring the provision of an open space in tlic rear of every new dwelling- house of 150 square feet free from any erection thereon aljove the level of the ground, and the distance between the house and the opposite property to bo 10 feet, and if the house be 25 feet in height, such distance should be 20 feet, the justices dismissed the information. The local board appealed, and the Court (Pollock , B., and Field, J) held, that the pulilic street was the "opposite property" and they remitted the case to the justices to convict. JON EH V. PARRY. (1887) 52 J. P. 69 ; 57 L. T. 402. ORDER NOT UNDER SEAL A contractor supplied certain iron gates to the verbal order of an officer of a poor law union. In an action by the contractor to recover the cost thereof, it was held by Lord Denman, C.J., in a considered judgment, tliat if work be done for a corporation for tlie purposes of the corporation, under a verbal order, and accepted and adopted by them, they cannot, in an action to recover the price, object that no order was given under seal. SANDERS V. ST. NEOT'S UNION. (1846) 8 Q. B. 810; 15 L. J. M. C. 104; 10 Jur. (o.s.) 566. ORDER WITHOUT PRICE BEING FIXED A joiner sent a number of sash-frames to a contractor to be glazed. He had frequently done so previously. Ko time for completion of the work, nor price, were named, but it was under- stood that market rates would be charged. After the order was given, but before the work was done, a reduction was made in the duty on glass. There had been delay in executing the work, but the joiner did not ol)ject. In an action for the price of the glass supplied and work done, the Court (the Lord Justicc-Clcrl; Lords Medwyn, Moncrief, and Cocl-hurn) held, that, in tlie circum- stances, the employer was bound to pay for the work at the rate current when the order was given. M ALLOC II V. HOUGHTON. (1849) 12 Ct. of Sess. Cas. (2ud Ser.) P. 215; 22 Sco. Jur. 33. 266 • PACTIONAL DAMAGES PACTIONAL DAMAGES Not Penalty. — A Luilder contracted to erect and complete a poor-lionse and deliver np the keys of tlie l)uilding l)y a specified date, under " a penalty of SJS for every wcch (hiring which the whole of the said works shall remain unfinished,^' after the specified date. In an action by the builder for the balance of the contract and for extras, the Court lield, inter alia, that the sum of £5 was in the nature of pactional damages, and was not a penalty subject to modification. JOHNSTON V. ROBERTSON (18G1) 23 Ct. of Sess. Cas. (2nd Ser.) E. G4G. PAROLE LICENCE The owner of certain premises gave a parole licence to the adjoining owner to put up a skylight over his area. Some time after the skylight had been erected, the owner withdrew his licence. In an action for a nuisance against the adjoining owner, Lord Ellenhorough, G.J., held, that the plaintiff could not recall the licence at pleasure after the work had been done at the defendant's expense, and no action for nuisance could lie, in respect of a stench cansed by the said skylight impeding the air conung to the plaintiffs premises. WINTER V. BROCKWELL. (1807) 8 East, 308 ; 9 K. R. 454. PAHTNERSHIP Agreement with Brickniaker. — A Ijuilder engaged in erecting certain houses under an ordinary building contract, entered into an agreement with a certain brickniaker, that in consideration of the latter supplying him with a ([uantity of l)ricks and making certain advances, &c., he would deposit the building agreement with the brickniaker as security, and use the bricks in the erection of two houses only, and wouhl procure the leases of the same to be granted to tlie nominee of the brickniaker for sale, the proceeds to l)e a])plied to the payment of the del)t to the l)rickmaker, who should be also entitled, as a further consideration, absolutely to one moiety of the profit on the two houses. In an action against the builder by a firm of timber merchants, who had supplied him with timber for these two houses, and claimed inter alia a declara- tion that the brickniaker and builder were partners. Hall, V.C., held, that, independently of § 1 of Bovill's Act, the agreement between the builder and the Ijrickmaker did not constitute them PARTNERSHIP * 267 })ai'fcncrs, so as to reiider the l)rickinaker liaMo Lo Uio ])lainiiffs for the tiniljcr supplied to the two liouses. KELLY Y, SCOTTO. (1880) 49 L. J. Ch. 383 ; 42 L. T. 827. Verbal Agreement. — The plaintiff and the (lef(nidaut verl»ally agreed to buy a certain estate, and to realize it as a building speculation for their joint benefit. The defendant was to provide the necessary capital and the plaintiff to give his services as surveyor and land agent, and superintend the building operations. The profits and losses were to Ije shared equally. The agreement, however, was not to be construed into a partnership between the parties, and slimdd relate only to the particular estate in question. The plaintiff ])rought an action, claiming a declaration that he and the defendant were partners and for an account, and Hall, V.C., held, that the agreement constituted a partnership between the parties, and declared a dissolution. MOOEE V. DA VIS. (1879) 11 Ch. D. 261 ; 39 L. T. 60 ; 27 W. 1{. 335. PARTY STRUCTURE The defendants' premises consisted of a two-storey building, adjoining those of the plaintiff, and were sold by the defendants to several purchasers, with a view to rebuilding new premises. The latter l)egan to pull down the l.iuildiug and were negligent. The plaintiff Ijrought an action for an injunction alleging damage done to his premises, and that he had not been served with notice under the Metropolitan Building Act, 1855, of the intention to pull down the party structure. Wood, V.C., held, that §§ 83 and 85 of the Mctyopolitan Building Act, 1855, do not apply to the case of the mere removal of a building from an adjoining building without disturbing the party structure, and no previous notice under the Act need in such case be given. MAJOR V. PAllK LANE CO. (1866) L. K. 2 Eq. 453 ; 14 L. T. 543. PARTY WALL Alteration causing a Settlement. — The premises of the plaintiffs and defendant were divided by a party wall, and it was disputed whether it belonged to the plaintiffs or defendant, with a right of support in the other. Previously a part of the plaintiffs' premises was supported by a beam inserted in the wall. In 1867, in the 2G8 PAPtTY WALL course of alterations, this beam was removed, and a new one sub- stituted, carrying additional l)rickwork, and it was alleged causing a settlement in tlic liousc. The defendant threatened to cut off the end of the beam and pull down the additional brickwork. Tlie plaintiffs sought, and Malins, V.G., granted, an injunction, and held, that, apart from the question of the ownership of the wall, an easement for support entitled the dominant owner to put any weight on the wall which did not endanger its sta1)ility; and that tlic wall was either the plaintiffs' or a party wall, and in eitlier case he had made a proper use of it. SHEFFIELD PROVIDENT SOCIETY v. JAP VIS. (1871) W. K 208. Apertures in. — Two houses originally belonged to the one owner, wlio sold one in an unfinished state to the plaintiff, a term of the sale being that the purchaser should Ijlock up a door which led through the party wall. The defendant suljsequently purchased the other house, and owing to some feeling lietween him and the plaintiff, he l)ored two holes, 2 inches square each, into the dining-room of the plaintiff, who brought an action for trespass. Tlie Court {Hawldns and Wills, JJ.) reversed llie decision of the County Court judge, and held, that the defendant liad no right to bore the holes complained of. WELBANK V. WEATHERHEAD. (1892) 8 T. L. R. 243. Award that Wall might be raised in Future. — The plaintiffs and the defendants were the freeholders of adjoining houses. In 1902 the tenant of the plaintiffs' house gave notice to the defendants of liis intention to rebuild the party wall between the liouses, nnder § 90 of the London Building Act, 1894; and the defendants as adjoining owners served upon him a notice, under § 89, setting out the requisitions with wliich they required him to comply. A difference having arisen between the parties, it was referred to the arbitration of surveyors under § 91, who decided the dimensions and mode of erection of the party wall, and further awarded that the defendants should have the right at any future time to raise the wall. The building o])erations were then carried out. In 1904 the defendants, in exercise of their right under the award, proceeded to raise the height of the party wall by building upon it, without serving a building owner's party-wall notice on the plaintiffs, who liad meantime acquired their tenant's interest. The plaintiffs thereupon brought an action against the defendants PARTY \\'\\A. 2G0 for uu iiijuuctiou, wliicli was granted l)y rhillimorc, J., and affirmed by the Court of Appeal. On Aiigust 11, 1904, the defendants served upon the plaintiffs a party-wall notice, pursuant to § 90 of the London Building Act, 1894, and, as the latter did not consent, a difference arose within the meaning of tlic Act. In due course tlie plaintiffs, and tlie other adjoining owners, appointed their surveyors, wlio agreed upon a third surveyor. Consideralde delay took place in arranging the arbitration, and nothing furllier had been done on February 11, 1905, when tlie period of six months from the service of the party-wall notice by the defendants had elapsed. Thereupon the plaiutifls gave notice to their surveyor that, under § 90 (4) of the London Building Act, 1894, the powers of the arbitrators had lapsed, and their surveyor in consequence took no further part in the proceedings. Tlie plaintills then obtained an order for a reference to an Official Referee, to assess the damages due by the defendants to them, but Biichnill, J., refused to make an order directing the defendants to remove the buildings erected upon the party wall, and the plaintiffs appealed fi'om his decision. The Court {Mathcw and Cozcns-Hardy, L.J J) held, that § 90 (4) of the London Building Act, 1894, does not apply to a case in which, a difference ha\ing arisen between the building owner and the adjoining owner with regard to the work to be done under the notice, there is a reference to a surveyor under § 91 of the Act, and their award is not made within six months aftei service of the })arty-wall notice. LEADBETTER v. MARYLEBONE CORPORATIOX. (1905) G9 J. P. 201 ; 1 K. B. GGl ; 74 L. J. K. 13. 507 ; 92 L. T. 819 ; 53 W. E. 470 ; 21 T. L. l\. 377. Building used partly for Trade. — Certain building owners erected a building of eisrht floors. The basement was to be used for packing goods, the ground floor as a retail shop, and the floors above as dining-rooms and kitchens. The two upper storeys were supported by an iron and concrete floor, through four openings in which it was intended that lifts should pass. A staircase, with a fireproof landing on each floor, ran from the top of the building to the street. The cubic content of the stau'case was 16,G56 feet, and that of the whole building, including the staircase, 289,456 feet. On a summons under § 27 of the Metropolitan Building Act, 1855, the magistrate ordered the owners to comply with the requirements of the surveyor, for non-compliance with which the summons was taken out. On a case stated, the Court {Matheiv and Cave, J J.) held, that the building was a building used partly 270 TARTY WALL for the purposes of trade, aud that the provisions of Eulo 4 of the Metropolitan Building Act, 1855, which require that every ware- house or other buikling used wholly or in part for the purposes of trade or manufacture, containing more than 216,000 cubic feet, shall be divided by party walls in such manner that the contents of each division thereof shall not exceed the above-mentioned number of cubic feet, had not been complied with. HOLLAND V. WALLEN. (189-1) 70 L. T. 37G ; 10 Eep. 583. Ceasing to be such above a Certain Height. — The respondents proposed to erect a certain building, and gave notice to the a})pellant that the building would be a warehouse of a cubical capacity of 057,408 cubic feet, and would be divided by five vertical walls in compliance with § 75 of tlie London Building Act, 1894. Part was to be five storeys, and part only one storey in height. Two of the di\'iding walls would separate the one-storey from tlic five-storey parts, but would be carried up beyond the roof of the one-storey part, so as to form the external walls of the other part. For 3 feet above the roof of the one-storey part, the two walls were to be constructed so as to comply with the requirements of the Act. The respondents contended that the two walls were not party walls so far as they did not separate one portion of the building from the other, but admitted they were party walls so far as they separated one portion from the other. The appellant contended that the two walls were party walls to tlie wliole height. The magistrate upheld his contention. The Court ( Wriglit and Collins, JJ.) held, that § 75 of the Act only made a wall a party wall, in respect of its dividing one portion of the building from another, so that the walls in question would cease to l)e party walls when carried \\\) above the roof of the lower part of the proposed building. DBUliY v. ABMY & NAVY AUXILIARY CO- OPERATIVE SUPPLY, LTD. (1896) 60 J. P. 421 ; 2 Q. B. 271 ; 65 L. J. M. C. 169 ; 74 L. T. 621 ; 44 W. E. 560. Ceasing above a Certain Height to be. — The plaintiff was owner of a house, one wall of which was, to the height of the first storey, a party wall between the owner's premises and those of the defendant, but aljove that height it had ancient lights. The plaintiff pulled down his house, and proposed to rebuild it with the windows in the same position as before : he gave notice to the defendant under the Bristol Improvement Act, 1840. The PAETY WALL 271 defendant afterwards proceeded to build ko as to obstruct the light coming to the ancient windcnvs of tlic plaintiff. By the Ad no openings shall be made in any party wall except for communi- cating from one building to another. On appeal, the Court (James and Mellishy L.J J.) held {affirming the decision of Malins, V.G.), that the wall above the defendant's building was not a party wall, and the plaintiff was not precluded from making windows in it, and they granted the injunction sought. WESTON V. ARNOLD. (1873) L. E. 8 Ch. App. 1084; 4:5 L. J. Ch. 123; 22 W. E. 284. Compensation for Extra Use of. — The a]:)pellant was lessee for a term of twenty-one years of a house, and the respondent was the assignee of the ground lease of a house adjoining. Before leasing to the appellant, the lessors raised the party wall between the two houses. The respondent pulled down the adjoining house and rebuilt it, and in doing so he used the party wall to a greater extent than before. Before commencing the work he gave the appellant notice under § 90 of the London Building Act, 1894, but the latter did not consent. The difference was referred to arbitration under § 91 of the Ad, and tlie arbitrators awarded £18 damages to be paid by the building owner to the adjoininf owner, and £38 lOs. G^/. to be paid by the building owner to the adjoining owner, for extra use made of the party wall for the new building, in excess of the portion pre\-iously used as a party wall for the old buildings. The respondent did not appeal against the award. The master granted leave to the appellant to enforce the award, against which order the respondent appealed. Walton, J., held, that the award was invalid as to the sum of £38 10s. 6d. (no question was raised in regard to the sum of £18). The Court {Collins, M.H., and Mathew, L.J.) held, tliat the appellant was not, as tenant of the first-mentioned house, entitled to any such payment, and that the arbitrators, in awarding it, had acted beyond their jurisdiction, and consequently their award, pi'o tanto was invalid. LN THE MATTER OF AN ARBITRATION BETWEEN STONE & HASTIE. (1903) 2 K. B. 463; 72 L. J. K. B. 84G ; 89 L. T. 353; 52 W. E. 130. Continuing Offence. — The owner of certain premises had been convicted and lined for l)uilding a party wall 4^ inches in thick- ness, contrary to the by-laws of a local authority, made under the 272 PARTY WALL Local Government Ad, 1858, which required such ^valls to be at least 9 inches thick. Subsequently he was summoned for permitting the oflence to continue, and was convicted and fined a continuing penalty of 5s, a day for every day such offence continued. On a case stated, the Court {Keating and Honcyman, JJ.) quashed the latter conviction, and held, that it was not a " continuing offence " within the by-law, to permit the party wall to remain unaltered, and if it was, the by-law was unreasonable ; the proper remedy being the demolition of the wall under § 34 of the Local Government Act, 1858. MAIiSHALL v. SMITE. (1873) L. E. 8 C. r. -116 ; 42 L. J. M. C. 108 ; 28 L. T. 538. Damage by Contractor. — Tlie owner of certain premises sent notices to the tenant who occupied the adjoining premises, and to the landlord thereof, under § 85 of the Metropolitan Building Act, 1855, of his intention to exercise his right, under § 83 of the Act, to rebuild a party wall. During the work some damage was done to the adjoining premises, which was made good by the contractor. The surveyors certified that a certain sum should be paid to the contractor in respect of the making good of the damage to the adjoining house, which the occupier paid on being served with a writ. In an action by the occupier to recover the amount from the defendants, who were his landlords, the plaintiff" obtained a verdict. On hearing a rule obtained by the defendants, the Court (Bovill, C.J., Waller, Keating, and Brett, JJ.) held, that a building owner wlio pulls down and rebuilds a party structure under the Metropolitan Building Act, 1855, is not bound to make good the damage to the adjoining tenement. An occupier, under a repairing lease, therefore, cannot recover from his landlord, the adjoining owner, the amount paid upon threat of legal proceedings to the building owner for the repair of such damage. BEYER v. WILLIS. (1870) 23 L. T. 463; 19 W. E. 102. -Dangerous Condition. — The owner of certain premises sued the adjoining lessee to recover a moiety of the cost of a party wall, which was rebuilt in compliance with a notice by the local authority that it was in a dangerous state. The adjoining lessee had sub-leased the whole property, and received an improved rental, and the question was whether the lessee, who was the defendant, or the sub-lessees in occupation, should pay a moiety of the cost of rebuilding. A. L. Smith, J., held, that the lessee PAirrY WATJ> ^/-^ was not "the owner" witliin the nicaninj,' of the Mrf.ropolita n Building Ad, 1855, and entered judgment for tlie defendant. WIGG V. LEFEVllE. (1892) 8 L. T. IJ. 40:5. -Defective, may be compulsorily Rebuilt. — Where a party wall sufficient for all other purposes is incapable of bearing the structure proposed to be placed upon it by the Iniilding owner, he has a riglit, under § 8o of the Metropolitan Building Ad, 1855, upon notice to the adjoining owner, to pull down the same compulsorily, bearing the expense. "Where a party wall is defective for all purposes, the expense of pulling down and rebuilding must be borne by the building and adjoining owners. SEAWELL V. WEBSTEB. (1859) 29 L. J. Ch. 71 ; 7 AV. IJ. 691. Delay in Completion. — The owner of certain premises, being desirous of rebuilding, pulled them down, and, finding that the party wall dividing them from the adjoining liouse was not strong enougli to support tlie proposed new l)uilding, he served notice upon the adjoining occupier under the Mdropolitan Building Ad, 1855, of his intention to pull it down. The work of demolition was begun on February 16, 1892, and on the next day the occupier, who was tenant from year to year of the adjoining house, souglit an injunction to restrain the defendant, &c., from interfering with the wall. The rebuilding of tlie wall was completed in xVugust, 1892. The defence pleaded the Statute of 1855, and at the trial tlie plaintiff obtained leave to amend his claim so as to raise the issue whether, by delaying the completion of the party wall until August, 1892, tlie defendant had exceeded his statutory powers. Grantham, J., entered judgment f(n" £40 as found by the jury. The plaintih appealed for a new trial on the grounds, that the judge ought not to ha\e allowed the amendment, inasmuch as the cause of action had arisen since writ issued ; and tliat, as the defendant had employed a competent biulder and architect, he was not liable to the plaintift" for their negligence. The Court (Lindleg, Lopes, and Davey, L.JJ.) refused the application, without calling on counsel for the plaintiil". JOLLIFFE V. WOODHOUSE, (1894) 10 T. L. E. 553. -Erection stayed, a " Difference " having arisen. — The plaintiffs and the defendant occupied adjoining premises in the City, and had erected a certain party wall between their premises. The M.B.C. T 274 PARTY WALL defendant subsequently in foiniinif a sub-basement had l)Cgun to excavate under tlie party wall, cutting away some of the concrete foundations and removing the clay beneath, and substituting therefor new concrete foundations, and new brickwork, carried up beneath the party wall. The defendant had served on the jdaintiffs the usual notice under the Metropolitan Buildiwj Act, 1855, naming his surveyor, and the plaintiffs had appointed their sur\'eyor, l)ut tlie two surN'cyors had not agreed as to the work, and had not ap])()inted a tliird surveyor. The plaintiffs moved for an injunction to restrain the defendant from continuing the WT)rk, and Jcs.sd, M.IL, held, that the i)laintifrs were right in law, and ordered tlie proceedings to be stayed on tlie defendant undertaking to do the works in question under the direction of two surveyors and an arl)itrator. Although a co- owner of a party wall could not at common law maintain an action for interference when the work done is not dangerous to the security of the i)arty wall, yet sucli a work, being a right in relation to a "party structure" witliin the meaning of § 83 (7), and (11), of the Mdropolitaii Building Act, 1855, cannot be carried out when a " difference " arises between the two owners (unless they concur in the appointment of one surveyor), except by the award of two surveyors and a third selected by them, or of any two of such surveyors as provided by the Act. STANDARD BANK OF BRITISH SOUTH AMERICA V. STOKES. (1878) y Ch. I), i^^) 47 L. J. Ch. 554; 38 L. T. G72; 2G W. IJ. 492. Executor or Administrator Liable. — Under the Building Act 14 Geo. III. c. 78, § 41, where a party wall has been rebuilt, the person who is owner of, and entitled to, the improved rent of the premises adjoining is liable to contribution out of such rent, though he be not otherwise owner than as an executor or administrator. And this, although tliere lie a judgment out- standing, of a prior date to the pulling down of the wall, and no assets to meet it. The portion of rent claimal)le in respect of such contribution is not assets. T HACKER V. WILSON. (1835) 3 Ad. & E. 142 ; 4 N. & M. 658 ; 4 L. J. K. 1). 14'J. Furniture exposed during Rebuilding. — Tlie plaintiff had for several years occupied a shop in a court as tenant at will. The defendants purchased some adjoining premises and pulled them down, and built upcui the site a lofty warehouse, which interfered PAHTY WALL 275 with the plaintiff's h'ght. They also for some months stopped up the path in front of the plaintiff's shop, thereby almost entirely destroying for that period his business, from which he deriveil a profit of £2 a week. During tin; W(trks the defendants pulled down, pursuant to tlieir powers under the Me/rojwUtan Bidldinrj Ad, 1855, tlio wall of the i»laintiff's house, which was in a dangerous state, leaving th(3 plaintilT's moms exposed to the weather. In an action for damages tried by Kccdiwj, ./., the jury found for the defendants as to the stoppage of the footpath, and for the plaintiff in respect of interference with his light, and the injury sustained l)y reason of the rooms being exposed. The Court {Bovill, G.J., Willes and Keating, JJ.), on hearing a rule obtained by the defendants for a new trial, lield, that an owner who pulls dowii a party wall under the authority of the Metropolitan Building Aet, 1855, is not bound to protect the rooms from exposure to the weather during the time that the wall is being pulled down and rebuilt. THOMPSON V. HILL. (1870) L. 1{. 5 C. P. 5G4 ; 39 L. J. C. V. 2G4 ; 22 L. T. 820 ; 18 W. II. 1070. Height increased. — The plaintiffs were, respectively, owners in fee, and lessees under a building agreement, of certain prenuses. The defendants were, severally, owners in fee, mortgagees, and lessee, of premises adjoining. A wall, G^ feet high and 6 inches thick, divided the respective gardens at the rear. The lessees, without the consent of the defendants, pulled down 33 feet of the said wall, and the defendants obtained from North, J., a perpetual injunction against the lessees in respect of interference therewith, but not so as to prevent the lessees from restoring the wall to its former condition. The lessees rebuilt the wall, not, however, as a garden wall, but as part of their new house, and raised it to a height of 50 feet, placing in the soil of the defendants' garden foundations extending thereinto some inches further than those of the old wall, and therel)y admittedly connnitted a trespass. From the height of G.V feet above the ground level to the toj*, 4A inches of the new wall was uulniilt upon. The defendants moved to commit the plaintiff-lessees' architect and sequestrate their property for a breach of the injunction, but the motion stood over to enable the plaintiffs to bring an action for the partition of the party wall. North, J., held, that a tenant in common is entitled as of right to a partition of the property held in common, subject to the provisions of a sale, contained in the Partition Act, 1868, and made the order for a partition. Jlc/d also, tliat the 276 PARTY WALL tresi)ass, being of a permanent nature, the owners of the reversion in fee of one of the premises could maintain an action for trespass, although the tenant made no complaint. MAYFAIR PBOPERTY CO. v. JOHNSTON. (1894) 1 Ch. 508; G3 L. J. Ch. 399; 8 E. 781 ; 70 L. T. 485. -Increasing Height without Notice. — The plaintiffs and the defendants were freeliolders of adjoining premises in London. The tenant of the former gave notice under § 90 of the London Building Act, 1894, to the defendants of his intention to rebuild a party wall between the houses. The defendants served on the tenant a notice under § 89, giving certain requirements with which they desired liim to comply. A dispute as to the execution of the work was referred, under § 91, to the arl^itration of two surveyors, who awarded inter alia that the defendants should have the right at any time to raise the i)arty wall as they might decide. Tlie building work was then executed. Two years later the defendants proceeded to increase the height of and build upon the party wall, without giving a building owner's notice to the plaintiffs, who had mean- time acquired the tenants' interest. On appeal against an interlocutory injunction granted in chambers by Fhillimore, J., the Court (Collins, M.R., Stirling and Mathcw, L.JJ.) held, that the defendants were building owners within the meaning of the Act, and were under an obligation to serve a building owner's notice on the plaintiffs, under § 90, l>efore beginning the work ; that the arbitrators had exceeded their jurisdiction, which, by § 91, was limited to disputes in respect of the work referred to in the original notice given to the defendants under § 90 ; that the}^ had no power to award that the defendants might in future raise the party wall ; and that the award was j^^'O tanto invalid. LEADBETTER & OTHERS v. 3IARYLEB0NE COR- PORATION. (1904) 68 J. P. 566; 2 K. B. 893; 73 L. J. K. B. 1013; 91 L. T. 639; 53 W. 11. 118; 20 T. L. E. 778. Injury to. — The owner of a party wall raised it, lona fide intending to comply with the provisions of the Building Act 14 Geo. III. c. 78, but did not in fact do so. In the course of the work the adjoining liousc was injured, and the owner brought an action for trespass. At the trial before Ahhott, C.J., a verdict was taken for the plaintiff, subject to an award which was given in favour of the defendant. On hearinc; a rule to set aside the award, PAIITY WALL 277 tlie Court (Alhott, C.J., and others) held, that the raisin*^ of the wall was to he considered as done in pursuance of the Statute, and that the defendant was entitled to tlie protection given hy § 100 thereof. PRATT V. IIILLMAN. (1825) 4 B. & C. 269 ; 6 D. & E. 3G0 ; 3 L. J. (o.s.) K. B. 253. Of Insufficient Strength. — The defendant's premises were burnt down, and had been rebuilt with a sloping roof, which formed one side of two floors or rooms in the roof. The premises were, some years later, again burnt down, and the defendant proposed to re- build the two top rooms in the same way. The district surveyor oljjected, on the ground that the two top rooms were storeys within the Metropolitan Building Act, 1855, and being storeys, tlie party wall between the defendant's and the plaintiff's premises adjoining, were not of the requisite thickness for party walls. Tlie defendant proposed to pull down the party wall, and increase its thickness, and the plaintiff objected. A difference having arisen between them, they appointed surveyors, under § 85 (7) of the Act, who by their award found that the party wall was not of sufficient strength for the building. Tlie plaintiff appealed, and the judge of the City of London Court (with assessors) held, that the rooms were not storeys, and set the award aside. The value of the matter in dispute being certified to be more than £50, the defendant appealed under § 102, The Court {Matheio and Grantham, JJ.) held, that the rooms in question were storeys, within the meaning of the Act, and that a topmost storey need not necessarily be contained within four vertical walls. FOOT v. HODGSON. (1890) 55 J. P. 116 ; 25 Q. B. D. 160 ; 59 L. J. Q. B. 343. "Lean-to" erected against. — The defendant was owner in fee of a i)l(>t of land, and the plaintiffs were joint adjoining owners. One of the plaintiffs was legal owner in fee of the adjoining premises, and had agi-eed to sell to his co-plaintiff, who had begun to liuild cottages upon it. The defendant derived title from the plaintiff who was owner in fee, and by a covenant in the lease the defendant's predecessor in title covenanted to erect a certain wall to be deemed a party wall. The co-plaintiff in building the cottages proposed to raise the wall so as to make a gable end to one of the cottages, and the defendant objected on the ground that it was a party wall, and he pulled some of the building down. The 278 TAirrY wall plaintiffs sought au injunction to restrain him from so doing, and North, J., held, that assuming it was a party wall within the meaning of the covenant in the head lease, and tluit tlie ])laiutiffs* land was subject to a similar provision, the wall was in no way vested in the defendant, and that though he might use it as a party wall hy putting a lean-to against it, tlie co-plaintiff could, subject to its being so used, do wliat he liked with it, and the injunction was granted. BUCHAN V. ABTLETT. (1888) W. K 76. Negligence in pulling down, — In an action against the owner of a house adjoining that of the plaintiff, for damages for negligence of the defendant's agent in pulling down a party wall between the two promises, it is a good defence to show that the plaintiff appointed an agent to su])erintend the work jointly with the defendant's agent, and tliut botli of tlie agents were to blame. HILL V. WAlUiEN. (1818) 2 Stark. 377. No Notice. — A landlord entered premises in the occupation of his tenant from year to year, and pulled down and reljuilt a party wall between them and other premises belonging to him, without giving the tenant the notice required by § 83 of the Metro- politan Building Act, 1855. In an action by the tenant against his landlord for trespass, tried by Cochhurn, C.J., the plaintiff obtained a verdict. On a rule, the Court {Crompton, J., Bramwell and Watson, BB., and Hill, J.) held, that the landlord was justified, as the tenant was not an " owner" within § 3, and it is no objection that the landlord had neglected to give tlie notice to the surveyor required hx § 38. Decision of the Court of Common Pleas affirmed. WHEELER V. GBAY. (1859) G C. B. (N.s.) GOG ; 28 L. J. C. P. 200 ; 7 W. P. 325 ; 5 Jur. 91G. Notice wrongly issued, not withdrawn. — The defendants served on tlie plaintiff a notice under the Metropolitan Building Act, 1855, § 85, to rel)uild a certain party wall. It proved that the wall was not a party wall, but an external wall, and, therefore, the notice was invalid. The plaintiff failed to induce the defendants to withdraw the notice, although they had been frequently requested to do so, l)ut they stated that they did not propose to act upon the notice. PARTY WALL 279 The plaiutiir sou<^ht an iiijuucti«m to restrain the defendants from acting on the notice, which Wood, V.C., granted. SIMS V. THE ESTATE CO. LTD. (18G5) 14 L. T. C>o • 14 W. li. 419. -Ouster by Defendant of Plaintiflf.— The plaintiff and defendant occupied adjoining lands divided by a wall, of which they were tenants in couinion. Tlie roof of the defendant's shed rested on the top of thi^ wall across its whole width. The defendant raised the wall, replacing the cojjing-stones, and huilt a washhouse where tlie shed had stood, the roof occupying the whole width of the wall. The defendant obtained a verdict in an action for trespass tried before Channcll, B., and the plaintiff sought a rule. The Court {Lord CamphcU, C.J., Erie and Crompton, JJ.) held, that on the facts the jury might find an actual ouster by the defendant of plaintiif from the possession of the wall, which would constitute a trespass \\\nm which the plaintiff might maintain an action against the def(Midant. STEDMAN V. SMITE. (1857) 8 E. & B. 1 ; 20 L. J. Q. P.. 314; ?. Jur. 1248. -Owner of Improved Rent Liable.— The lessee of certain land entered into a building agreement with a proposed sub-lessee who was to build houses and pay the lessee £20 a year rent. The sub-lessee employed his lessee, who was a builder, to erect the houses. In an action by the adjoining owner against the lessee, to recover a moiety of the expense of building the party wall, tried before Best, G.J., the plaintiff obtained a verdict. On hearing a rule for a new trial, the Court {Best, C.J., Pari', Burrough, and Gaselec, JJ.) discharged it, and held, that as the defendant was entitled to the improved rent he was liable to contribute to the party wall to which the houses were attached, and that, as there was no adjoining house when the plaintiffs house was built, a reas(mable notice was sufficient, and the ten-day notice rctpiired by the 14 Geo. III. c 78, § 41, was not oldigatory. COLLINS V. WILSON. (1828) 4 Bing. 551 ; 1 M. & V. 454 ; G L. J. C. P. 107. -Owner of Improved Rent Liable. — The owner of an improved rent, not of the ground rent, is lial)le to pay tlie expenses of a party wall built under the provisions of 14 Geo. III. c. 78 ; and the three months' notice required by § 38 is only necessary, where the person, who at the time when it was necessary to build, &c., 280 PARTY WALL is liable to pay, cannot agree with the owner of the adjoining liouse. PEGK V. WOOD. (1703) 5 T. E. 130. Service of Notice. — Tlie plaintiff was tenant in possession of a part of certain premises, under an agreement for three years from February 1, 1890. The landlord resided in a room on the premises, and was a tenant of the Crown for a long time unexpired. The defendant, wlio was the adjoining owner, l>eing desirous of re- building ]iis premises, served by post upon the landlord a party- \vall notice under § 50 of the Metrojpolitan Building Act, 1855. It was headed and addressed to "J. SmiOt, . . . and u-liomso- ever it may concern" and was in the form generally used by architects and sur\'cyors in London. Having done so, the defendant ])roceeded with tlie works, without notice to tlie plaintiff. The plaintiff obtained, ex i)artc from the Vacation judge, an Intenm injunction restraining the defendant from interfering with the party wall. On motion to continue the injunction until trial, CJiittij, J., held, that the plaintiff was entitled to three months' notice under § 85 (1) of the Act, before any alterations to his lu'emises cnidd l)e commenced li\' tlic building owner, and that notice on the person in receipt of tlie wliole of the rent of the premises was insufficient. FILLINGHAM v. WOOD. (1891) 1 Ch. 51 ; 00 L. J. Cli. 232 ; 0-1 L. T. 40 ; 30 W. IJ. 282. Tenant may deduct Cost from Eent. — A tenant who fias been compelled by a ''huilding oivner" to pay the proportion of tlie cost of a party wall or structure wliich was payal)le under tlie Metropolitan Building Act, 1855, l)y his landlord, the ^'adjoining owner*' may maintain an action against the latter to recover the sum so paid, and is not bound (though entitled) to deduct it from rent due or accruing due. EABLE V. MA UGHAM. (1803) 14 C. B. (N.s.) 020 ; 10 Jur. 208 ; 8 L .T. 037 ; 11 AV. Pt. 911. -Tenant under Repairing Lease. — A tenant under covenant to repair cannot maintain an action under the Building Act 14 Geo. III. c. 78, against his landlord for a moiety of the cost of building a party wall which, l)eing out of repair, the tenant had pulled down and rebuilt at the joint expense of himself and the adjoining TARTY WALL 281 occupier, to wliurn lie had given the statuLoiy uoLicc, but without his authority. PIZHY V. ROGERS. (182G) lly. & Mo. 357. Tenants in Common. — The plaiutiiT and the defendant were owners in fee of adjoining premises, eacli deriving title from the same predecessor in title. In the title-deeds of each premises tliere was a declaration that a wall, 4t^ inches tliick, separating the respective premises in the rear, was to be and remain a party wall. In the course of erecting a shed the plaintiff built a new- piece of wall upon, and corresponding in thickness to, the old wall 4 feet G inches long, raising it to a lieight of 3 feet 4 inches, as a support for the roof of the shed. The defendant knocked the new wall down, and the plaintiff claimed damages and an injunction. Fnj, J., defined the meaning of a party wall, and held, that the adjoining owners were tenants in common, and if one excludes the other from the use of the wall by })lacing an obstruction upon it, the only remedy of the excluded tenant is to remove the i)l)struction. The plaintiff, therefore, was not awarded any damages, and the injunction was refused. WATSON v. GRAY. (1880) 44 J. P. 537; 14 Ch. D. 192; 49 L. J. Ch. 243; 42 L. T. 294; 28 W. E. 438. Time-Limit for bringing Action. — An adjoining owner had begun to l>uild a party wall partly on the soil of the plaintilf, more than three months before the date when the action was brouglit. The work, however, was not finished until within that time. The Building Act 14 Geo. III. c. 78, § 100, limits the time in which actions may be brought to three months. In an action for trespass against the adjoining owner, Parle, J., held, that the plaintiff could recover in respect of such part of the trespass as was committed within the time limited, but that, if nothing had been done within three months, he must bring ejectment. TROTTER V. SIMPSON. (1831) 5 C. & P. 51. Trespass to, by Erection of W.C.'s.— The defendant, in rebuild- ing his premises after a fire therein, gave a party-wall notice, under the Metropolitan Building Aet, 1855, to the adjoining owner in respect of a wall built entirely on the premises of the adjoining owner, who had laiilt some closets against the wall. The adjoin- ing owner sought an injunction to restrain the defendant from 282 IWllTY WALL iuterferiug with the wall, and a mandatory injimction, to compel him to remove certain buildings which he had erected thereon. Fry, J., held, that so far as buildings extended against both sides of the wall, it was a " party wall " within the meaning of the Act, and that the defendant was entitled, after due notice, to take down such part as might be necessary for the pur])ose of necessary rebuilding. KNIGHT V. rURSELL. (1879) n Ch. D. 412; 48 L. J. Ch. 395; 40 L. T. 391; 27 \s. ]J. 817. United Building. — The owners of certain premises made such an addition thereto that the cubic content of the two buildings taken together exceeded 21G,000 cubic feet. By the rules made under § 27 of the Metropolitan Bidldmg Act, 1855, certain buildings containing more than that number of cubic feet must be divided liv party walls; § 28 prohibits any buildings fiom being united, if when so united they will l)e a contravention of the AH. § 9 of the Act makes an addition to an old building subject to the said Act. The district surveyor summoned the owners because they had not separatetl the buildings by a party wall, and the magistrate ordered that a party wall should be built. Tlie owners appealed, and the Court {Clcasby, B., and Ch-ovc, J.), on a case stated, dis- missed the appeal. The owners appealed to the Court of Appeal (James, Baggallay, Bramwell, and Brett, L.JJ.), who held, that the united building was not within the Act, and need not be separated by a party wall ; and that an appeal from the decision of a magistrate will lie under § 106 of the Act, although there has not been a conviction. SCOTT V. LEGG. (1882) 10 Q. B. D. 236 ; 46 L. J. M. C. 207 ; 30 L. T. 456 ; 25 W. l\. 594. -TJse of Gable. — The iilaintiff claimed damages for trespass liy the defendants in 1 )uilding on and against the plaintiff's gable walls and making use of them without the plaintiff's consent, and an injunction; or, in the alternative, for payment for £25, being half cost of the gable walls. A building society, mortgagees of a build- ing estate, joined with the mortgagor in selling a site on the estate to a purchaser, who covenanted to perform certain scheduled conditions, one being that the purchaser first building a party wall should be repaid half the value thereof by the purchaser of the adjoining site. The purchaser built a house, mortgaged it to the society, who, under their power of sale, sold it to the PAirrY WALL 283 plaiutitT. The building society subsetiueutly sold the residue of the estate to a company, who sold to the defendants a site adjoining the plaintiff's house, under substantially the same conditions as to party walls as bound the plaintiff. The defendants Ijuilt a iKMise, using the plaintiff's party wall, half of which was built on the plaintiff's and lialf on the defendants' land. On appeal from the judge of a County Court, the Court {Darling and ChanncU, JJ.) held, that there was an implied contract on the part of the defendants to pay half the cost of the party wall to the plaintiff as the owner of the adjoining house, notwithstanding that the wall had in fact been built by the plaintiff's predecessor in title. IRVING V. TURN BULL & ANOTHER. (1900) 2 Q. B. 129 ; 09 L. J. Q. B. 593. Use without Leave. — A tenant who rel)uilds a house in London without a lease or an agreement for a lease, and therein makes use of a party wall of the adjoining house, cannot Ije sued for half the cost, as owner of the improved rent, even tliough he afterwards obtains in consideration of the rebuilding a beneficial lease at a low gi'ouud rent, hahcndani from a day l)efore the rebuilding. TAYLOR V. RUED. (1815) G Taunt. 2^9. User of. — The owner of three contiguous building sites sold tlie middle site, the length of which was 20 feet, to the plaintiff in 1887 ; and one of the end sites to another purchaser, and he retained the other end site himself. The plaintilf and the other purchaser erected houses on their respective sites, and the owner built a house on the site he had retained, making use of the plaintiff's gable, in respect of which user the plaintiff oljtained judgment in the County Court against him for £21 7s. The plaintiff's premises extended to the middle of the wall, 4^ inches of which stood on the plaintiff's and 4A inches on the defendant's ground. On appeal, the Court (Cave and A. L. Smith, JJ.) held, that the custom had been proved whereby the defendant should contribute to the cost of the wall, which he used, notwithstanding that it was half built on his ground, there being nothing in the agreement to exclude the custom. ROBINSON v. TIIOMBSON. (1890) 89 L. T. J. 137. ^Verbal Assent to Pay.— A builder proposed to the occupier of the adjoining [)remises ti, C.J., held, that the plaintiff was entitled to recover from the adjoining occupier his share of the cost, irrespective of the Building AH 14 Geo. III. c. 78. STUART V. SMITH. (1816) 2 Marsh, 435 ; 7 Taunt. 158 ; Holt (n.p.) 321. PENALTY Concluded by Architect's Certificate. — The plaintiff agreed to build a certain house by a certain date, and in default to pay £5 for each week during which completion was delayed thereafter. £70 in respect of penalty became due. In an action for the Italance of the contract, it was proved that some delay had been caused by the defendant, that the architect had certified that the works were complete, and that the ])laintiff was entitled to tlie balance due. Crowder, J., held, that the architect's certificate concluded the question of penalties, and directed a verdict for the plaintiff. ARNOLD V. WALKER. (1859)1 F. &F. 671. Not Liquidated Damages. — A finu of builders contracted to erect certain school buildings, the contract providing that in the event of the buildings not being com})leted by a specified date the contractors should forfeit to their em})loyers, the school governors, a sum of £10 for every week after that date during which the works should remain unfinished and not delivered up ; and, also, that in the event of the contractors' bankruptcy, &c., the governors might rescind the contract, &c., and that " in case this contract be not in all things duly performed by the said contractors, they shall pay to the said governors the sum of £1000 as and for liquidated damages." During the progress of the works the contractors filed a petition, and for a time their trustees carried on the works, and then gave notice in writing that they abandoned the contract. Another contractor was enqdoyed to finish the works, which were not completed until after the specified date. A proof for £1000, tendered by the governors, was rejected by the trustee in bank- ruptcy, as it did not disclose that any damage had been sustained by the debtors' default, and the County Court judge affirmed this decision. On appeal by the governors, Bacon, C.J., held, that the governors were entitled to prove. The trustees appealed, and the PENALTY 285 Court (James, Barigallay, and Braimcell, L.JJ.) reversed llie decision of Bacon, G.J., and held, that tlie £1000 was in the nature of a penalty, and that the governors could only prove in the liquidation for the actual damage sustained. IN HE NEWMAN; EX PARTE CAPPER. (1876) 4 Ch. D. 724; 4G L. J. Bk. 57; 35 L. T. 718; 25 W. E. 244. Omitted from Contract. — The plaintift's sued an urban district council t(3 recover certain payments allege::) L. T. 25G. Stone Pilasters. — A lessee of the Metropolitan Board of Works had erected, against the front of a numl)er of houses and shops, five stone pilasters, the bases of which projected 6 inches on the public pavemeut. The vestry passed a resolution declaring such to be inconvenient to passengers along the pavement, and, in 300 PROJECTION accordance therewith, the lessee was, by notice, required to remove the same. He refused to comply with the notice, and was summoned, under § 72 of the General Paving Act, 1817, for non-compliance therewith. The magistrate considered that the pilasters were window-dressings within the meaning of § 26 of the Metropolitan BidliUng Act, 1855, and dismissed the summons. The Court (Denman and Haiuhins, JJ.; Lord Coleridge, C.J., dissenting) held, in a considered judgment on a case stated, that § 26 of the Metropolitan Building Act, 1855, did not amount to a repeal j9ro tanto of § 72 of tlie Act of 1817 {Michael Angelo Taylors Act), and did not authorize projections wliich would interfere witli tlie user, by the public, of a pul)lic footway. ST. MABY, ISLINGTON, VESTRY OF v. GOODMAN. (1889) 54 J. P. 52 ; 23 Q. B. D. 154 ; 58 L. J. M. C. 122 ; 61 L. T. 44. j^OTic. — This case was overruled in Fortescue v. Vestry of St. Matthew, Bethnal Green (1891), 2 Q. B. 170. See p. 299, supra. PROSPECT Injury to.— Tlie })laintiiT l^rought an action in the Common Pleas in respect of the obstruction of his prospect, and obtained judgment. On error, the jiulgmeut was reversed, and the Court (Twisden, J., and others) held, that an action will not lie for building a wall by means of which a prospect is destroyed. KNOWLES V. BICHARDSON. (1687) 1 Mod. 55 ; 2 Keb. 642. "PUBLIC BUILDING" A builder was summoned and convicted for erecting an amlndance station and neglecting to give the surveyor notice under § 38 of the Metrop)olitan Building Act, 1855. (3n the hearing of a sunnnons, it was contended by the surveyor that the building was a "public building," within the meaning of the said Act, and of § 16 of the amending Act of 1878. The building was erected on land acquired Ijy the managers of the IMetropolitan Asylum District, and adjoined other premises, the property of the managers, but was not attached to, or worked in connection with, them. The Court {Lord Coleridge, C.J., and Mathew, J.) held, on a case stated, that the ambulance station was not a " public building," and quashed the conviction. JOSOLYNE V. MEESON. (188.-) 40 J. P. 805 ; 53 L. T. 310. PUBLIC OFFICES 301 PUBLIC OFFICES Fitted for Use as County Court. — The clerk of a County Court ordered a liuilder to fit up a liall and office for the purposes of a County Court, and when tlic work was completed, referred the l)uilder for payment to the treasurer of tlie Court, who refused to pay. In an action Ity the l»uilder against the clerk, the Court, in a considered jiulgmeut, held, that a clerk of a County Court, established under 9 & 10 Vict. c. 95, is personally liable upon a contract made by him with a builder, to fit up a hall and offices in which the business of the County Court is to be carried on. AUTEY V. HUTCHINSON. (1848) 6 C. B. 26G ; 17 L. J. C. P. 3U4 ; 12 Jur. (o.s.) 9G2 ; IIL. T. (o.s.)lo2. aUANTITIES Inaccurate. — A builder agreed to execute for the defendants certain works for a lump sum which was arri\-ed at by means of a schedule of quantities appended to the contract, containing several manifest errors in the calculations. The builder brought a l)ill to have the errors rectified, and alleged that at the date of the contract, or soon afterwards, the eri'ors were known to the defendants' architect. On demurrer for want of equity by the defendants, Stuart, V.O., held, that the plaintiff was entitled to rectify, and overruled the demurrer with costs. NJSILL V. MIDLAND RAILWAY, (18G9) 17 W. E. 871 ; 20 L. T. 864. aUANTITY SURVEYOR Architect as. — A building owner employed an architect to prepare plans, specification, estimate, and the quantities of a house which he contemplated building, in 1856. Owing to the owner's inability to find the necessary site and funds for building, tlie work was not proceeded with. The negociations as to the proposed purchase of the site were protracted, and in 1861 the architect sent in a lump sum bill for £25 to cover all his charges. The owner repudiated any liability, wliereupon the architect sued for his full professional charges, amounting to £60. CoMurn, C.J.y left it to tlie jury to say whether the work was done on the retainer and employment of the defendant, and a verdict for the plaintiff for £15 was entered, without costs. SPBATT V. DOBNFORD. (1862) H. B. C. 80. 302 QUANTITY SURVEYOR Architect as.— A building owuor employed a tinii of arcliitecls lo prepare plans of a proposed house, the cost of which was not to exceed £3000. The architects also took out the quantities, but owin^ L. T. 189 ; 40 W. R. 223. Custom ; Owner to pay. — A building owner employed an architect to prepare plans and specification for a proposed building, and the architect engaged a quantity surveyor to take out the quantities in connection therewith. The quantity surveyor took out the quantities, and inserted in the l)ills of quantities a provision whereby the builder whose tender for the work was accepted would be bound to pay the charges of the quantity surveyor. The building owner did not proceed with the building, and the quantity surveyor sued him for his fees. Monaghaii, C.J., told the jury if they were satisfied that the surveyor was employed sultject to the custom of the trade, they should find for the plaintiff, and they found for the plaintiff with costs. GBIBBON V. MOORE. (1869) The Builder, July 10, H. B. C. 14. Fees. — The architect employed by a harbour board, engaged a quantity surveyor to take out the quantities of certain buildings about to be erected 1)y the board. In an action by the surveyor against the board for the amount of his fees, the surveyor relied upon the custom of the building trade for an architect to employ a quantity surveyor at the employer's expense, and Manisty, J., left it to the jury, who found for the plaintiff. BIBDSEYE V. DOVER HARBOUR BOARD. (1881) Times, April 14; H. B. C. 4. Fees. — The guardians employed a certain architect to prepare plans and specification for a new workhouse. The architect directed the plaintiff to prepare bills of quantities, which were to be paid for by the contractor whose tender was accepted; but owing to a dispute between the guardians and the architect, the guardians refused to proceed with the works. In an action l)y the quantity surveyor against the guardians for his fees, the jury found for the plaintiff. On appeal by the guardians, the Court QUANTITY BURVFA'OR 305 {Tindal, C.J., Pari, Bosanqucf, and Coltnian, J J.) affirmed the judgiueut of the Court Ijelow. MOON v. GUARDIANS OF THE WHITNEY UNION. (1837) 3 Biug. (N.c.) 814; L. J. (\ V. 305; 5 Scott, 1 ; 3 Hodges, 206. -Fees. — A huildiug owner employed an arcliitect to devise alterations in a theatre, and the work was entrusted to a certain builder. The architect employed a quantity surveyor to measure up the work for final settlement. Prior to the surveyor's employ- ment tlie owner had expressed dissatisfaction with tlie builder's charges and the amounts certified Ijy the arcliitect, and had stated he would employ an independent surveyor to measure up. In an action by the surveyor against the owner for his charges, it was proved that, by usage or practice of the building trade, an architect is authorized to employ such surveyor, but that in case of dispute between arcliitect and builder on the one hand, and the owner on the other, the operation of the custom would be different. Denman, J., held, that in the circumstances to follow the general usage would be unreasoualjle, and gave judgment for the defendant. PLIMSAUL V. KILMOBEY. (1884) 1 T. L. R. 48. -Fees. — An architect employed a quantity surveyor to take out the quantities of a proposed building, the plans of which he had prepared. The defendants received a lithographed copy of the quantities, and were informed that if tlieir tender was accepted they were to pay the cost of the bills of quantities. The de- fendants' tender was the lowest, but involved too great an outlay. Subsequently the works were executed by the defendants according to designs prepared by them, under contract with the owner, in which it was agreed with the owner tliat the defendants would not be liable for the plaintiff's fees. The plaintift' sued the defendants for his fees, alleging the custom of the building trade. Tlie Court of Common Pleas (Monahan, C.J., Morris and Zatvson, JJ.) held, that the defendants were not liable to the plaintiff, as they carried out an entirely different plan to tliat prepared by liim (Ir. Peps. 4 C. L. 467). On appeal, this decision was reversed by the Kx- chequer Chamber {Whiteside, G.J., Pigot, Fitzgerald, and George, JJ.; O'Brien and Deasy, JJ, dissenting). TAYLOR V. HALL. (1870) Ir. Peps. 5 C. L. 477. Fees. — A burial board passed a resolution instructing their salaried surveyor to prepare plans, &c., and to procure tenders for M.B.C X 306 QUANTITY SUKVFA'Olt the erection of a mortuary chapel. The surveyor employed a quantity surveyor to prepare bills of quantities, upon which tenders were subsequently invited, but no tender was accepted. In an action by the quantity surveyor for the cost of the bills which he prepared, against the burial board, the defence set up was that the latter never employed the plaintiff, and there was no con- tract with him under the board's seal. Manisty, J., overruling the objection as to the necessity of the contract being under seal, IlcIcI, that as the board had directed their officer to procure tenders, they had impliedly authorized him to have the quantities taken out, and he entered judgment for the plaintiff. WAGHOllN V. WIMBLEDON LOCAL BOABD, (1877) Times, June 4 ; H. B. C. 87. ■ Fees when Builder abandons Contract. — A builder agreed with a quantity surveyor that, if the latter would supply the quantities for a proposed building, the builder would, if his tender was accepted, pay the surveyor out of the first instalment on account of the contract. The surveyor supplied tlie quantities, but the builder subsequently abandoned the contract. In an action against the builder by the surveyor for his fees, the Court held, that it was implied that the defendant should duly proceed with the building contract, and that, having rendered performance im- possible by his own act, he was bound to pay the surveyor for the quantities, McCONNELL v. KILGALLEN, (1878) 2 L. R. (Ir.) 119. Inaccurate duantities. — A building owner employed an archi- tect to prepare plans, &c., for a house, and to procure a contractor to do the work. The architect took out the quantities himself, and procured a tender from a builder, whicli the owner accepted. The quantities were inaccurate, and the builder sued the building owner for the difference between the contract price and the amount actually expended by him on the works. At the trial the plaintiff was nonsuited by direction of the judge, and the Court of Common Pleas refused a rule. The plaintiff appealed, and the Exchequer Chamber {Pollock, C.B., Channcll and Pigott, B.B., BlacJchurn, Mcllor and Slice, JJ.) held, that there was no evidence that the architect acted as the defendant's agent in taking out the quantities, or that the defendant guaranteed their accuracy, and that, there- fore, the plaintiff was only entitled to the contract price. SCBIVENEB V. PASK. (18G5) L. 1(. 1 C. r. 715; 18 C. B. (n.s.) 785. QUANTITY SUKVEYOll 307 Liability for Fees of. — A building' owner employed an aicliilect to prepare plunSj &c., of a house which he proposed to erect, and the architect engaged a quantity surveyor to take out the quantities. The surveyor duly took out the quantities, and inserted therein a sum, to cover his charges and the cost of lithography, which was to be paid to him ])y the Iniilder, whose tender for the work should be accepted. During the progress of the work the builder whose tender had been accepted, and who had received payments on account of the contract, got into difficulties and became a bankrupt, whereupon the owner took the work out of his hands. In an action by the quantity surveyor against the building owner to recover his charges. Field, J., held, that as there had been a tender accepted and a builder found by the building owner, the quantity surveyor had no cause of action against him. YOUNG V. SMITH. (1880) H. B. C. 100. Mistakes. — A Ijuilder was supplied by an architect with bills of quantities of the work and materials required for the erection of certain premises, upon which he submitted a tender which was accepted, and provided for the payment by the builder of the cost of the quantities. Owing to inaccuracies in the quantities the builder lost money over the contract. In an action for damages brought by the builder against the architect, Byks, J., held, that the builder could sue the defendant for negligence in furnishing him witli inaccurate quantities, and the jury fouud for tlie plaintil'f damages to be ascertained by a reference. BOLT V. THOMAS. (1859) Times, August 10 ; H. B. C. 6. Negligence. — The London School Board employed the defend- ants as quantity surveyors in respect of certain buildings of the value of £12,000, which had been duly completed and measured up. The Board determined the employment of the surveyors, and brought an action against them for the recovery of certain memoranda of calculations made by the surveyors in the course of their employment; for damages for the surveyors' negligence in taking out the quantities whereby the Board overpaid the contractor ; and for the return of certain money paid to them for the cost of lithographing the bills of quantities. A. L. Smith, J., held, (1) that the plaintifls had no right to the memoranda, the measuring having been done ; (2) that, as the surveyors had em-- ployed a competent skilled clerk wlio had carried out hundreds of intricate calculations, they were not liable for negligence iu 308 QUANTITY SURVEYOli respect of the two clerical errors complained of ; and (3) that as it was agreed that the surveyors should employ their own litho- grapher, the 15 per cent, paid by the latter to the surveyors, altliough the surveyors were agents of the Board, was not com- mission, but really a discount for cash which the surveyors might retain. LONDON SCHOOL BOARD v. NORTHGROFT. (1889) H. B. C. 27. Negligence. — A priest, about to build a Eoman Catholic church, employed an architect, who prepared plans and instructed a quantity surveyor to take out the quantities thereof. The surveyor handed the lithographed quantities to the architect, who obtained a tender for the works from a firm of builders. There was an error in the quantities, and the builders sued the surveyor for damages sustained by his negligence. Stephen, J., gave judgment for the defendant, and the builders appealed. The Court {Lord Usher, M.R., Lindley and Bowen, L.JJ.) dismissed the appeal, and held, that there was no privity of contract which would enable the builders to sue the surveyor for negligence. PRIESTLY V. STONE. (1888) 4 T. L. E. 730; H. B. C. 53. aUANTUM MERUIT Beer supplied by Owner to Contractor's Men Set-off. — The plaintiff executed certain works for the defendant, and sued on a quantum meruit for work and labour. The defendant offered evidence to prove that he had supplied the plaintiff's men with beer, and Battcson, J., held, that it was admissible, although not pleaded as a set-off, as it might be that the plaintiff deserved to be paid Jess, because his men were supplied with beer by the defendant. GRAINGER v. RAYBOULD. (1840) 9 C. & P. 229. Contractor cannot sue on a, if he abandons the Contract. — The plaintiff, a builder, contracted with the defendant to build certain premises upon the defendant's land for £565. When part of the work, value for about £333, was done, and the plaintiff had received payments on account of the same, he in- formed the defendant that he was unable to proceed with the work from lack of money. The defendant then finished the work himself, using the materials which the plaintiff had left on the ground. Bruce, J., found that the plaintiff had abandoned the contract, and allowed liim nothing in respect of the work which QUANTUM MERUIT 309 he had done on the Iniilding, but he gave judgment for the pkiutiff for the value of tlie materials used by the defendant. The plaintiff appealed. The Court (A. L. Smitk, M.B., Chitty and Collins, L.J J.) held, that the plaintiff could not recover from the defendant in respect of the work which he luul done as upon a qiuintum meruit, there being no evidence of any fresh contract to pay for the same. Mimro V. Butt, 8 E. & B. 738, followed. See p. 351, infra. murTER V. HEDGED. (1898) 1 Q. B. 673 ; 67 L. J. Q. B. 545 ; 78 L. T. 378 ; 46 W. K. 454. Extras. — A builder was employed to erect certain houses, upon written conditions, which were duly signed and kept in the custody of the defendant's architect, whose certificate was made, by the conditions, a condition precedent to the right to payment. In an action upon a quantum meruit for works not certified for by the architect, it was discovered that an erasure had been made in the conditions, and tlie jury found it had been made by the architect after they liad lieeu signed. Field, J., entered judgment for the plaintiff, subject to a reference. On hearing a rule obtained by the defendant, the Court {Bramwell, Cleasby, and Pollock, BE.) held, that, notwithstanding the erasure, the conditions were either still the governing document, or at least must be looked at to see what were the real terms of the contract, and that the plaintiff could not recover. PATTISON V. LUCKLEY. (1875) L. E. 10 Ex. 330 ; 44 L. J. Ex. 180 ; 33 L. T. 300 ; 24 W. E. 224. House out of Perpendicular. — A builder rebuilt the front of a liousc, and wlicn tlie work w^as finished it was found tliat it was considerably out of the perpendicular, and in danger of tumbling down. The owner refused to pay, and the builder brought an action against him to recover the cost on a quantum meruit. Lord Ellenhorough, C.J., held, that the defendant might reduce the damages liy showing that the work was improperly done, and may entitle himself to a verdict by showing that it was wholly inadequate to answer the purpose for which it w^as undertaken to be performed. FABNSWOIITH v. GAEBABD. (1810) 1 Campb. 37 ; 10 E. E. 624. Set-off — The plaintiff agreed to execute certain works for a specified sum. Afterwards the employer supplied some of the 310 QUANTUM MERUlf materials which were worked up by the plaintiff. In an action to i-ecover by way of quantum meruit the amount due, Lord Kcmjon, C.J., held, that the cost of the materials supplied must be set off, and cannot be given in evidence on the general issue. ALLINSON V. DA VIES. (1790) 2 Peake (Add. Cas.) 82. TTsage. — A builder contracted in writing to execute certain brick-and-stoue work "/or the sum of 3s. per superficial yard of work 9 inches thick, and finding all materials, deducting all lights." At the trial of an action for work done and materials supplied by the builder, Bramiuell, B., directed a verdict for the plaiutiif, with leave to the defendant to move. On a rule obtained by the defendant, the Court ( Williams and Willes, J J.) held, that evidence was admissible showing that the usage of reducing brickwork to 9 inches for the purpose of ineasTirement, did not apply to stone- work unless where it was more than 2 feet thick, and that the proper construction of the contract was that it only provided for the price of the brickwork, leaving the stonework to be paid for on a quantum meruit. SYMONDS v. LLOYD. (1859) 6 C. B. (N.s.) 091. When Conditions of Contract are Inapplicable, may sue on. — A building contract provided that the works contracted for should be executed according to drawings and specifications prepared by the defendants' surveyor, whose decision in any misunderstanding, or dispute, arising out of the contract, was to be final and binding on the parties. Extras, if necessary, were to be ordered in writing by the architect, and the contractor was not to occupy the premises until duly authorized. No portion of the work was to be com- menced without the written order of the surveyor, but the non- delivery of the site to the contractor was not to vitiate or afiect the contract, nor entitle the contractor to increased allowances in respect of time, money, or otherwise, unless an extension of time was granted by the surveyor. When the contract was made the contractor was informed that the works would be begun at once, and must be completed in four mouths, and that the cost of the work done in winter would be 50 per cent, more than in summer, and he tendered on that basis. Owing to the defendants' delay in giving possession of the land the w^ork could not be commenced until after October 0, In an action to recover the extra cost of having to execute the works in winter, judgment was entered for the plaintiff. On appeal, the Court {Lord Coleridge, C.J., and Mathew, QUANTUM MERUIT 311 J.) held, that where the circumstances coutcmplatccl by a 1 .uihling contract for woi-ks are so changed as to make the special conditions of the contract inapplicable, the contractor may treat the contract at an end, and sue upon a quantum mcndt. UUSII V. WHITEHAVEN TOWN TRUSTEES. (1888) H. B. C. 121. While Contract remains open, Contractor cannot sue on a. — A l)uilder agreed to build a house for a certain sum, and the defendant agreed to allow him to build it on his land, and to pay for it. It was admitted that the house liad not l)een built according to the specification, owing to the defendant varying the same. The builder sued the defendant to recover the balance due to him on foot of the contract and for extras ; and Colcndfje, J., held, that an action cannot be brought on a quantum meruit, while the contract remained open, but miglit be brought for extras : an unqualified refusal by one contractor to perform his part of the contract entitles the other party to rescind it, and sue upon a quantum meruit. LINES V. BEES (1855) 1 Jur. 593. -Work not worth Price charged.— The plaintiff was a carpenter, and was employed t«j do certain works on a farm, the defendant supplying the materials. In an action on a quaiitum meruit for work and lal)0ur done, the Court (Lord Ellcnhorough, C.J., Grose, Lawrence, and Lc Blanc, J J.) held, that the defendant was entitled to show without notice to the plaintiff that the work done was not worth the sum claimed, and if the plaintiff had already been paid the value of the work done, he cannot succeed. BASTEN V. BUTTER. (1806) 7 East, 479. aUANTTIM VALEBANT A builder brought an action against his employer on a special contract for the balance due for building a certain house. In the course of the work he omitted certain items specified in the contract. Mansfield, C.J., entered a nonsuit, and held, that if a builder contracts for work of specilied dimensions and materials, and deviates from the specification, he cannot recover on a quantum valebant for the work, labour, and materials. ELLIS V. HAMLEN. (1810) 3 Taunt. 52 ; 12 R. R. 595. 312 REASON ABLE TIME REASONABLE TIME Tlie defeudant coveuauted to build a house in a reasonable time. In an action on the covenant, the Court held, that it was n<5 defence that a reasonable time had not elapsed since the plaintilf required the defendant to build the house. FISHER V. FORD. (18-40) 4 Jurist (o.s.) 1034 ; 1 Arn. & H. 12. REBUILDING ON OLD SITE The owner of certain houses proposed to rebuild them, and pre- pared plans of the old l)uildings, sliowing basement, ground floor, first, second, third, and fourth floors, together with sections and elevations, whicli were certified ])y the district surveyor as correct, under § 43 of the London Building Act, 1894. Subsequently the owner submitted to the district surveyor plans of a building whicli he proposed to erect on the site of the liouses, but the district sur- veyor served the owner, under § 150 of the Act, with a notice objecting that the proposed building would be in contravention of § 43 (1) of tlie Act, because it was proposed to deviate from tlie plans certified by the surveyor of the domestic buildings existing on the site at the time of the passing of the Act. The magistrate, to whom the owner appealed, upheld the district surveyor's view, and dismissed the appeal. The Court ( Wills and Kennedy, J J.), on a case stated, held, that the " plans showing the extent of the previously existing domestic Ijuilding in its several parts " are not confined to ground-plans, but include plans showing sections and elevations, and the areas of the several floors, and they dismissed the appeal. PAYNTER y. WATSON. (1898) 62 J. r. 467 ; 2 Q. B. 31 ; 67 L. J. Q. B. 640 ; 40 W. R. 655. RECEIVERS The defendants were ajipointed by the Court as receivers and managers of the business of a firm of building contractors, and as such ordered certain goods of the plaintiff for the purposes of the business. In an action for the value of the goods, Mathew, J., gave judgment for the plaintiff. On appeal, the Court {Lord Eslicr, M.R., Lopes and Righy, Ij.JJ.) dismissed the appeal, and held, that in the circumstances there was a 'prima facie inference that the receivers had pledged their personal credit RECEIVERS 3 1 3 for the goods, aud looked for an indemuity to the assets of the business. BURT & OTHBliS v. IJUIL. (1895) 1 Q. B. 276; G4 L. J. Q. B. 232; 1-i E. 65; 71 L. T. 810 ; 43 W. E. 180; 2 Mans. 94. RECTIFICATION The plaintiff agreed in \vriting to build for the defendant six houses on a certain plot of land according to plans and specifica- tion; and the defendant agreed, within three months after the completion of the houses, to build a certain bridge and to grant the plaintiff leases of the six houses. When the plaintiff had erected four houses he alleged that he had executed the agreement under a mistake, induced by the negligence of the defendant, and that he was to erect only four liouses, the number actually agreed upon between the parties, and he alleged that the defendant was attempting fraudulently to take an advantage of this mistake. The ])laintiff brought an action against the defendant, claiming recti- lication and damages for breach of tlie agreement to erect the bridge by the defendant. North, J., held, that since the Judicature Act, 1873, the Court has jurisdiction (in any case in which the Statute of Frauds is not a bar), in one and the same action, to rectify a written agreement, upon parol evidence of mistake, and to order the agreement as rectified to be specifically performed. OLLEY V. FISHER. (1887) 34 Ch. D. 367; 56 L. J. Ch. 208; 55 L. T. 807; 35 W. E. 301. REGULAR LINE OF THE STREET The appellant was owner of two houses, fronting the street, and of an adjoining piece of vacant ground forming a corner plot. He pulled down the two houses, and proposed to erect new build- ings on the same site as the old. The local authority had, some years previously, proposed to widen the street to a uniform width of 40 feet, and had acquired the necessary ground on one side of the street, except that upon which the houses of the appellant and two other owners stood, tiie property of all three owners being in a line, and all projecting beyond the proposed line of the street. The appellant contended that his houses did not project beyond the "regular line of the street." Under § 162 of the Police and Improvement {Scotland) Act, 1862, the local authority, on the rebuilding of a house projecting beyond the regular line of the street, may require the house to be set back to the line of the street 314 EEGULAK LINE OF THE STREET or adjoiuing houses. The Court {Lord Herschcll, L.C., Lords Watso7i and Shand) held, that the expression " regular line of the street " must be taken to mean the line of the buiklings forming the street, and not a line indicating that part of the street which is dedicated to the public as a highway, and that the respondents liad statutory power to restrain an owner of vacant land, situated within 25 feet of the centre of the street, from erecting a Inuldiug thereon above 7 feet high. SCHULZE V. GALASHLELS COBPORATLON. (1895) 60 J. P. 277 ; A. C. G6G ; 11 11. 219. REPAIRING LEASE The lessor of certain premises covenanted witli the lessee to keep in repair all the external parts thereof. The corporation under a local Act pulled down the adjoining house, and in conse- quence of want of support the premises collapsed and became un- inhabital)le. The lessor refused to repair, and the lessee effected the repairs, and sued the lessor on the covenant. The Court (Dcnman, C.J., and others) held, that the wall, even before the adjoining liouse had been pulled down, was an external part of the demised premises, and that the defendant was lial)le on the covenant, although the corporation had injured the premises in the first instance ; but held, that the plaintiff could not recover expenses incun-ed by him in fitting up other premises while the first were imdcr repair. GREEN V. EALES. (1841) 2 Q. B. 225; 11 L. J. Q. B. 63 ; 1 Cx. & D. 468 ; 6 Jur. 0. S. 436. REPEAL A builder erected a chimney with a partition of stone-slate of the thickness of 1^ inches between the flues, contrary to the pro- visions of § 6 of 3 cfc 4 Vict. c. 85, which required the partitions to be at least equal to half a brick in thickness. On the hearing of an information against the builder, he contended that the Act had been impliedly repealed by a subsequent local Statute, which empowered the local authority to prescribe the materials, &c., to be used in the construction of fhies and chiiuneys, and the dimensions according to which they were to Ije built. The justices convicted, and fined the builder. On appeal, the Court (Cleashj, B., Grove and Field, JJ.) dismissed the appeal, and held, that the earlier Statute had not been repealed by the local Act. HILL V. HALL. (1876) L. R. 1 Ex. D. 411 ; 45 L. J. M. C. 153 ; 35 L. T. 860. RESCISSION 315 RESCISSION The plaiulill" agreed to grant a lease of laud with the carcases of seven houses thereon to the defendant, who agreed to finish two of the houses by the 25th of the foHowing Marcli, and the remain- ing five by the 24th of June. The defendant was not to carry away any building materials delivered on the premises ; time was to be regarded of the essence of the contract ; and until the leases were granted the plaintiff had the right of re-entry in the defendant's default. Under the agreement the plaintiff duly advanced certain sums to the defendant, who subsequently made default in completing the five houses, and also began to remove materials. The plaintiff sought, and Fry, J., granted, an injunc- tion and damages against the defendant, and dismissed his counter- claim ; and hdd, that the exercise of a right to rescind a building agreement must be signified in an unqualified manner, and before the other party has gone to expense, believing the right would not be exercised : a mistaken claim to rescind does not ipso facto operate to rescind the agreement, unless the other party claims rescission on the grounds of the mistaken claim. If one party rescinds he is not entitled to enter on the premises to remove goods after the date of rescission. MAESDEN V. SAMBELL. (1880) 43 L. T. 120 ; 28 W. E. 954. EESTRICTIVE COVENANTS The defendant and another offered for sale forty-six building sites at fee-farm rents. They had previously prepared a plan showing roads, drainage, and the various sites. Upon each plot the site of a semi-detached house was indicated. The plan was approved by the local authority, and, according to the defendant, it had been prepared to satisfy the requirements of that body in regard to roads, sewers, and the general building line. Intending grantees were shown a copy of this map, which was framed in the office of the defendant's solicitors, together with a form of agree- ment to build a certain class of house, &c. A builder purchased four plots after negociations, in the course of which he was told that the plan represented the way in which the estate would bo laid out, and that stables could be erected. The boundary walls were not to exceed 2 feet 6 inches in height, and were to be surmounted by an iron railing 2 feet 6 inches in height. The builder erected thereon four houses. The plaintiff was second mortgagee of the four plots and houses thereon, and resided in one. The defendant owned eight plots 316 RESTRICTIVE COVENANTS opposite, two of which liad heen acquired hefore the subject of the phiintif!"s mortgage, and the defendant was subject to the same restrictive covenants as tlie plaintiff. As to the remaining six plots, the defendant was only obliged to obtain the other grantor's approval of the plans of any house he proposed to build. In 1891 the defendant proceeded to build upon the remaining lots, a billiard-room 20 feet high, a stable and coach-house 17 feet high, and a boundary wall 7 feet high. The plaintiff sought an injunction, and Eomer, J., held, that there was no cause of action in respect of the erection of the said buildings. TUCKER V. VOWLES. (1893) 1 Ch. 195; 62 L. J. Ch. 172; 3 11. 107; 67 L. T. 763; 41 W. li. 156. RIGHT OF WAY The owner of a public-house in the City of London claimed an injunction to restrain the defendant from erecting a building on the site of an adjoining court, over wliicli the plaintiff claimed a right of way. At the trial it appeared that tlie defendant had served notice upon the plaintiff of his intention to build thereon, and tlio plaintiff had asserted the right he claimed. The defendant, however, proceeded with and completed the building, an expensi\-e structure, which blocked up the access to the rear of the plaintiff's house. Jesscl, M.B., held, that it was a case for a mandatory injunction, and not for damages under Lord Cairns' Act. KBEHL V. BUBRELL. (1877) 11 Ch. D. 551 ; 48 L. J. Ch. 252 ; 40 L. T. 637 ; 27 W. E. 805. ROOF OF INCOMBUSTIBLE MATERIALS The district surveyor summoned the managing director of a company for having covered the roof of a building externally with combustible material, contrary to the provisions of the Metropolitan Building Act, 1855, § 19 (1). The building was intended for use as a storeroom or gi-eenhouse, and ordinarily would have been covered with glass. It was covered witli a substance called duroline, composed of woven wire coated with a transparent and waterproof compound, which was used in several large buildings in the metropolis as a substitute for glass. If lighted the com- pound would burn away and leave the wire work uninjured. It gave off an inflammable vapour when sul)jected to a temperature of 320° Fahr. By the sub-section the roof of every building must be covered externally with slates, tiles, metal, or other ROOF OF INCOMBUSTIBLE MATERIALS 317 iucoml)ustil)lG materials. The magistrate held, tliat, as a whole, in the circumstances, the material was incombustible. Tlie district surveyor appealed. The Court (Mathew and A. L. Smith, L.J J.) held, that the roof was not covered with " incombustible materials " within the meaning of the Act. PA YNE V. WRIGHT. (1892) 56 J. P. 564; 1 Q. B. 104; 61 L. J. M. C. 114; 66 L. T. 148 ; 17 Cox C. C. 460. RUBBISH SHOOT The plaintiffs' predecessors in title granted to the defendants in 1830 a lease of 12 acres of land for the purposes of making a reservoir. The land was not used for that purpose, but was used as grazing land down to 1896, when it was sub-demised to a contractor for use as a rubbish shoot. The surface in time was thereby raised about 10 feet above its former level. The plaintiffs brought an action against the defendants and the contractor, alleging that shooting rubbish constituted waste, and that it had been done with the authority of the defendants, and they claimed an injunction and damages. Buddey, J., held, that there had been such an alteration of the thing demised as to constitute waste in view of Lord Darcy v. Askwith (Hob. 234), and that both defendants were liable in damages for the past acts of waste, and that they must be re- strained from connuitting waste in future. Queen's College, Oxford v. Ilallctt (14 East, 489) commented on. WEST HAM CENTRAL CHARITY BOARD v. EAST LONDON WATERWORKS CO. (1900) 1 Ch. 624; 69 L. J. Ch. 257; 82 L. T. 85; 48 W. E. 284. SCHOOL-HOUSE Covenant to build only Private Residences.— Certain trustees, for themselves and others, purchased an estate with a view to re-selling it for building purposes. In May, 1872, the defendant purchased 4 acres of the estate, covenanting, for himself, his heirs, and his assigns, not to erect or suffer to be erected thereon more than four messuages or dwelling-houses, and that no messuage, dwelling-house, or other building so erected on the land would be used otherwise than as a private residence only, and not for any purpose of trade. The remaining plots on the estate were all sold subject to similar restrictions. In February, 1877, the defendant 318 scnooL-nousE sold his plot to the trustees of a charitable institution as a site for a proposed building for the education and maintenance of a hundred girls. The trustees of the estate sought an injunction to restrain the defendant and the trustees of the institution from erecting the proposed building, as being a breach of covenant. Bacon, V.C, refused the injunction, and dismissed the action with costs. The plaintiff appealed, and the Court (James, Baygallay, and Thesirjer, L.JJ.) held, that the proposed building was a breach of the covenant to use the land only for the purpose of a private residence, and not for the purpose of any trade. GERMAN v. CHAPMAN. (1878) 7 Ch. D. 271 ; 47 L. J. Ch. 250 ; 37 L. T. 685 ; 26 W. E. 149. SET-OFF In respect of Delay. — The plaintiff contracted to build and complete certain works by a specified date, and the defendant was then to pay him £418 and any extra works ordered at a certain valuation. If the works were not completed by the specified date the plaintiff was to forfeit £1 a day for every day's delay beyond that date as liquidated damages. Extra time w^as to be allowed for the execution of extra works if they were ordered. In an action to recover the amount of the contract and extras, the Court {Lord Denman, C.J., and others) held, on demurrer, in a considered judgment, that the defendant might deduct in the form of set-off £1 a day for each day's delay. LEGGE V. HARLOCK. (1848) 12 Q. B. 1015 ; 18 L. J. Q. B. 45 ; 13 Jur. 0. S. 229. -Deduction and not. — A builder agreed to execute certain repairs to premises owned by the defendant for £40. In an action by the builder for the balance of his account, it was alleged by the employer that part of the work was done by him, and he called a witness, wdio proved that he had been paid for executing the same by the employer. The plaintiff objected to the evidence, on the ground that the work proved by the last witness should have been pleaded as a set-off. The under-sheriff, however, admitted the evidence, and gave judgment for the defendant. On hearing a rule for a new trial, obtained by the plaintiff, the Court {Tindal, C.J., Bosanquet, Erskine, and Maule, J J.) held, that tlie cost of the work done by the employer was a matter of deduction, and not set-off, and refused the rule. TURNER V. DIAPER. (1841) 2 M. & G. 241 ; 2 Scott (n.r.) 447. SET-OFF 319 Materials supplied deducted without Pleading Set-oflf, — The plaintil'ls contractud in writiug to liud Lliu inaLuiial and do certain work for the defeudaut for a fixed sum. Afterwards the defendant supplied a portion of the materials, which the plaintiffs accepted and used up in the work. In an action for work done by the plaintitl's, tlie Court hclcly that the defendant was entitled to deduct from the damages the value of the materials supplied l»y him with- out pleading a set-off, NEWTON & ANOTHER v. FORSTER. (1844) 12 M. & W. 772. SETTLED LAND ACT, 1890 A tenant for life altered, reconstructed, and enlarged a mansion house. Part of the premises was not altered, and the walls of another part were utilized for the alterations. On hearing a summons for leave to apply part of the capital to the payment of some of the cost. North, J., held, that such works constituted a " rebuilding" under § 13 (4) of the Settled Land Act, 1890. IN RE WALKER'S SETTLED ESTATE. (1894) 1 Ch. 189. SEEVANTS OF THE CROWN Action lies against. — The plaintiffs, a firm of builders, con- tracted with the defendants to build a post-office, according to specifications and conditions, for £5473. When the post-office was partly erected, the defendants determined the contract by notice, and seized the buildings, materials, &c., on the site. The builders claimed damages, and the defendants pleaded that they contracted as servants and agents of the Crown, and on behalf of the Crown as a Government department. The Court {Ridley and PliiUlmore, JJ.) held, that an action will lie against H.M, Commissioners of Pu1»lic AVorks and Buildings, wlio are incorporated by statute for damages for breach of contract entered into by them with a firm of builders for the erection of a public building, GRAHAM & OTHERS v. H.M. COMMISSIONERS OF rUBLIC WORKS ct- BUILDINGS. (1901) 65 J, P. 677 ; 2 K. B. 781 ; 70 L, J, K. B. 800 ; ^o L, T. 96 ; 50 W. E. 122. SERVICE OF NOTICE. To repair. — A summons was granted on a complaint that the owner of a certain structure had failed to comply with a notice requiring him, under § lOG of the London BuUdin'j Act, 1804, to 320 SERVICE OF NOTICE do certain works of repair. Tlie summons was addressed " To the owner," who ditl not appear at the hearing. The owner was not known, and on ilie magistrate calling for proof of service, a constable stated that he had affixed a copy of the summons to the premises, which were unoccupied. No evidence was given of any steps having been taken to discover the owner's identity. The magistrate was of opinion that the summons should have been served as a notice under the Summary Jurisdiction Acts, and ought to have been served upon the owner under § 1 of 11 & 12 Vict. c. 43, personally, or at his last known place of abode. He, therefore, held that the service was l>ad, and refused to hear the complaint. The Court ( Wricjlit a7id Kennedy, J J.), upon a rule calling upon the magistrate to show cause why he should not hear and determine the matter of com],)laint, lidd, tliat in the alisence of evidence that reasonable inquiry had been made to find out who was the owner so that he could be served under § 1 of the Summary Jurisdiction Act, 1848, the provisions of § 188 of the London Building Act, 1894, did not apply, and, therefore, tlie service of the notice was bad. B. V. MEAD. (1898) 61 J. P. 759; 1 Q. B. 110; 66 L. J. Q. B. 874; 77 L. T. 462 ; 46 W. E. 61 ; 18 Cox C. C. 670. SIGN Advertisement. — The tenant of a shop and premises in the County of London gave permission to an advertising agent to erect an advertisement sign, 10 feet 6 inches by 7 feet, supported on iron Ijrackets affixed to the front wall of the house and project- ing 1 foot 4 inches beyond it, but not projecting over the highway. The sign was completed on June 20, 1899, but the information was not preferred until May 17, 1900. A metropolitan police magistrate found as a fact that the sign did project beyond the general line of buildings in the street, that the offence was a continuing offence, and convicted the tenant. The Court {Bruce and Phillimore, J J.) held, that the conviction was wrong, because the sign was not a projection within the meaning of § 73 (8) of the London Building Act, 1894, which applies only to projections forming part of the building from which they project; and the prosecution was barred by § 11 of the Summary Jurisdiction Act, 1848. HULL V. LONDON COUNTY COUNCIL. (1901) 65 J. P. 309; 1 K. B. 580; 70 L. T. K. B. 364; 84 L. T. 160 ; 49 W. E. 396; 19 Cox C. C. 635. Note. — This case was disapproved by the Divisional Court in London County Council V. llhtminated Advertisements Co. (1904), 2 K. B. 886. See p. 232, supra. SKY-SIGN 321 SKY-SIGN Madame Toussaud's. — Tho owner of a lar^c place of enter- tainment erected on tlie end wall thereof a palisading which supported an iron trellis with the letters " Madame Toussaud's " tliercon for the purposes of advertisement. The dome of the liuilding was 30 feet liiglier tliau tlie trellis. The letters were not over the building, Init from one point of view they were on the sky-lino. On summons hn- infringing the London Sk// Signs Act, 1y a building agreement the owner agreed to grant a lease of certain premises to the defendant as soon as he had built thereon a new house, the defendant agreeing to accept such lease and to pull down the old buildings and erect a new house on the site thereof. In an action for specific performance of the agreement and damages by the owner against the defendant. Page Wood, V.C, held, that the Chancery Amendment Act, 1858, applied, and that the plaintift' was entitled to damages for the non-building of the iM.B.C. V 322 SPECIFIC rERFORMANCE liousC; aud the Bpocific performance of the contract to accept the lease. SOAMES V. EDGE. (1860) 1 Johns. 669. SPECIFICATION Error in. — A bulkier contracted to build a house according to plans and a specitication prepared by the owner. The specification omitted any reference to flooring, but stated that " the whole of the materials mentioned or otherwise in the foregoing particulars, ncces- sary for the completion of the work, must he j^rovided Ig the con- tractor" The builder refused to lay the flooring without extra payment, and the defendant determined the contract, took posses- sion of the works, and completed the building, using the builder's timber on the premises for the flooring. In an action Ijy the builder for work and laboiu-, Croivder, J., found for the owner, with leave to move. On hearing a rule, the Court (Pollock, G.B., Watson and Channell, BB.) held, that the flooring was not an extra, as it was included, though not mentioned, in the contract, and the plaintiff could not maintain trover for the timber left on the premises of, and used by, the defendant. WILLIAMS V. FITZMA URICE. (1858) 3 H. & K 844; 32 L. T. 139. STATUTE OF FRAUDS Original Contract not within. — The defendant was the surveyor employed to superintend the erection of certain premises, and to receive moneys to be paid by the owner to the builder employed in erecting the same. In consideration that the plaintiff would deliver on the builder's order the necessary materials, the de- fendant promised that he would pay the plaintiff for them out of such moneys as were payable to the builder. The plaintiff pro- vided £1000 worth of materials, and a like sum became payable to the builder, but the defendant did not pay the plaintifT as agreed. On demurrer, the Court {Lord Ahinger, C.B., Parke, Alderson, and Gurney, BB.) held, that the defendant's promise was an original contract and not within the Statute of Frauds. ANDREWS V. SMITH. (1835) 2 C. M. & E. 027 ; 1 Tyr. & G. 173 ; 5 L. J. Ex. 80. Materials of Old House, an Interest in Land.— The defendant sold, by aucticni, certain building materials, and one of the conditions STATUTE OP FRAUDS 323 of sale provided that tlie uiaterials wqvq to l)e taken down and cleared off the premises before a date two mouths later, after which date the materials not taken away were to he deemed a trespass, and to liecome forfeited, and the purchaser's right of access to tlie ground to cease. The plaintiff was declared the purchaser, ami signed tlie form of contract printed witli the conditions of sale ; the auctioneer confirmed tlie sale, and acknowledged payment of £5G5, the contract price required by the conditions of sale. As a fact only £100 passelot a wall 13 feet high, and projecting 20 feet towards the road- way. Tlie magistrate ordered the demolition of the wall on the ground that, heing attached to the house at one end, it was part of a building, and therefore an infringement of § 75 of tlie Metropolis Local Management, &c.. Act, 1862. The owner's appeal was dis- missed by the Divisional Court, and he pulled down the wall. He then erected on the same foundations a wall less than 8 feet in height, separated by 8 inches from the house. On further summons the magistrate ordered its demolition. On hearing a case stated, the Court {Lord Coleridge, C.J., and Cave, J.) held, that the section is not intended to prevent the owner from erecting such a wall or fence as would be a reasonable ascertainment of a ])rotection to his property, and it is for tlie magistrate to say whether such is a "building structure or erection" within the meaning of the section, and they dismissed the appeal. ELLIS V. PLUMSTEAD BOARD OF WORKS. (1893) 57 J. P. 359 ; 5 Pt. 237 ; 41 W. R 496 ; 68 L. T 291. SUB-CONTRACTOR The fire-proof and concrete portions of certain premises, in course of erection, were to be executed by the respondents, who contracted with the owner's architect, and not with the builders who were erecting the premises. The contract with the latter admitted of the employment of other tradesmen to perform works on the premises. The builders were to permit the respondents to SUB-COXTR ACTOR 325 use their scaflold, &c. An employe of tlie huildeis was injured by a bucket falling upon him, owing to the want of due care on the part of tlie servants of the respondent. In an action by the injured man the jury awarded him £52 10.9. damages, and Grantham, J., entered judgment accordingly. The Divisional Court {Pollock, B., and ManiMij, J.) ordered judgment to be entered for the respondents, as the plaintifi", at the time of the accident, was engaged in a common employment with the servant of the respondents, whose negligence caused the injury to the plaintifi'. The plaintiff appealed. The Court of Appeal {Cotton and Lopes, L.JJ. ; Fry, L.J., dissentiiig) affirmed this decision. On appeal, the House of Lords {Lords Hcrschcll, Watson, and MorHs), in a considered judgment, reversed the decision of the Court of Appeal (2:3 Q. B. D. 505), and held, that since the relation of master and servant did not exist between the parties, the doctrine of collahorateur did not apply, and the action was maintainable. JOHNSON V. LINDSAY & CO. (1891) 55 J. P. 644; A. C. 371; 23 Q. B. I). 508; 61 L. J. Q. B. 90 ; 40 W. B. 405 ; 65 L. T. 97. SUBSIDENCE Action Statute - barred. — A local authority, in executing sewerage works, impr(jperly filled in the excavations, in con- sequence of which the plaintiff' 's land suljsided and the houses thereon sustained injury. The subsidence began more than six months before the date of action brought, and the land continued to subside until that date. The local authority, in an action Itrought by the plaintilf, pleaded that by the PuUic Health Ad, 1875, § 264, the plaintiff was statute-barred. The jury found a verdict of £150 damages, and Wilh, J., entered judgment accordingly. The defendants appealed, and the Court {Lord Ksher, M.ll., Boivcn and Fry, L.JJ.) held, that the further sub- sidence which took place within six months before action brought constituted a distinct cause of action in respect of which the action was maintainable. CRUMBLE V. WALLSEND LOCAL BOARD. (1891) 55 J. P. 421; 1 Q. B. 503; 00 L. J. Q. B. 392; 64 L. T. 490. By Withdi-awal of ftuicksand. — The plaintiff was the owner of land with houses on it. The defendants, in excavating for the purposes of erecting a gasometer, penetrated a substratuui of 326 SUBSIDENCE quicksand, which also extended under tlie land of the plaintiff. In draining their excavations, the defendants withdrew a large quantity of quicksand from under the plaintiff's land, thereby causing a subsidence, and consequent injury to the plaintiff's houses. By § 9 of the Gasworls Clauses Act, 1871, the defendants were liable to proceedings for any nuisance caused by them in the execution of their works. The plaintiff Ijrought an action against tlie gas company and the contractors for damages in respect of injury caused by the subsidence, and an injunction to restrain the company from obstructing the ancient lights of the house, by the increased height of the proposed gasometer. North, J., held, that the contractors had not been negligent, that the damage had been caused by the escape of the quicksand, and that the lights of the liouse would be materially obstructed by the height of the proposed gasometer. He granted an injunction against the company restraining them from erecting the gasometer more than 68 feet high, and gave judgment for £340 damages against all the defendants in respect of subsidence, and apportioned the costs between the defendants. Both defendants appealed. The Court (Lindley, M.B., Righy and Vaughcm Williams, L.J J.), in a considered judgment, held, that the defendants had no statutory authority to carry on the work so as to cause a nuisance, and {Vaughaii Williams, L.J., dissenting) that as the defendants had caused the subsidence of the plaintiff's land liy withdrawing its support, they had committed an actionable nuisance at Common Law, entitling the plaintiff to damages, and that the plaintiff was entitled to an injunction in respect of the erection of the gasometer as damages Would not be adequate. JORDESON V. SUTTON, SOUTIICOATKS, & DRY- POOL GAS CO. (1899) 63 J. P. 692; 2 Ch. 217; 68 L. J. Ch. 457; 80 L. T. 815. SUPPORT Absence of Right to. — The plaintiff was owner of certain land upon which some modern buildings stood. The defendant, who owned the land adjoining, contracted with a builder for the erection of certain buildings on the border of the defendant's premises; and in the execution of the work the plaintiff's buildings were injured : some of the plaintiff's building material was carried away by the workmen without the defendant's sanction. The plaintiff obtained a verdict in respect of the injury, and of the conversion, in a county court, and the defendant appealed. The SUPPORT 327 Court {Parhe, Piatt, and Martin, JJB.) held, that in tlic aljsence of a riglit to support, tlie action in respect to the injury failed, and that the defendant was not liable for the tortious acts of the builder's workmen. GAYFOIW V. NIC ROLLS. (185-4) 9 Ex. 702; 2 C. L. E. 106G ; 32 L. J. Ex. 205 ; 2 W. li. 453. -Cutting away Footings. — "Wlierc notice was given to tlie occupier of adjoining premises, of an intention to pull down and remove the foundations of a building, on part of the footing of one of the walls of whicli one of the walls of sucli adjoining premises rested, it was held, in an action for damages, that the party giving the notice was only bound to use reasonable and ordinary care in the work, and was not bound in any other way to secure the adjoining premises from injury, although, from the peculiar nature of the soil, he was compelled to lay the foundations of his new building several feet deeper than those of the old building. MASSE Y v. GOYDER & OTHERS. (1829) 4 C. & P. IGl. Deep Excavations. — A purchaser of certain spongy land built thereon, in accordance with a covenant, certain cottages, and did not drain the ground previously. The defendant, in excavating deeply for the erection of certain church buildings on the adjoining land, the title to which was derived from the same grantor, drained the adjoining land, and therel>y caused injury to the cottages. The land would liavc sulisided even if no cottages had been built upon it, and no negligence was alleged. In an action to recover damages, the Court of Exchequer {Martin, BraiiuocU, and Channdl, BB.) gave judgment for the defendant. The plaintiff appealed to the Court in Error, and the judgment was affirmed by the Court {Cocldmrn, C.J., Keating, Lush, Hanncn, and Brett, JJ.). POPPLEWELL V. HOD KIN SON. (1869) L. E. 4 Ex. 248 ; 38 L. J. Ex. 120 ; 20 L. T. 578 ; 17 W. E. 806. Deeper Excavations than those in Next Tenement. — The plain- tiffs were owners in fee of certain premises adjoining the premises of the defendant's employers, both of the premises being indepen- dent, and having been dwelling-houses until twenty-seven years prior to 1876, when the plaintitfs' predecessor converted his premises into a coach-factory, removing the internal walls, and erecting a chiiimcy-stack, which also supported certain floor-girders. These girders were let into the plaintilis' stack on the one side and into the plaintiffs' wall on the opposite side, and were so braced as to form the main support of the upper storeys of the factory. The defendant, in carrying out certain Ijuilding operations for the co-defendants, removed the dividing wall, and erected a temporary wooden gable so as to protect the factory while the new buikling was being erected. The defendant then excavated to a depth of several feet below the level of the plaintiffs' stack, leav- ing- a thick pillar of the original clay around the stack for the purpose of supporting it, there being no cellar in the premises previously. This pillar proved insufficient, and ]jefore the founda- tions of the new wall had been built, it gave way, and tlie stack fell, drawing with it the entire premises. Tlie plaintiffs sued the defendant, and also his employers, the Commissioners of Works, for damages for removing the lateral support of the plaintiffs' factory; and the action was tried l»y Lush, J., who directed a verdict for the plaintiffs and an inquiry as to damages. The defendants appealed, and the Court (CoMurn, C.J., and Mellor, J. ; Lush, J., dissenting) held, that no grant of a right to such support could 1)0 presumed from the enjoyment tliereof by the plaintiffs for twenty years, inasmuch as the owners had never any power to oppose the conversion of the premises into a coach-factory, and had no reasonable means of preventing the enjoyment of such support; and, for the same reason, such support was not an easement which had been enjoyed for twenty years within § 2 of the Prescription Act, 1832, as it could not be said to have been enjoyed by a person claiming a right thereto, and without interrup- tion (3 Q. B. D. 85). The plaintiffs appealed from this judgment, and the Court of Appeal {Cotton and Thesiger, L.J J.; Brett, L.J., dissenting) reversed it, and ordered a new trial or judgment for the plaintiffs for £1943 damages. The defendants appealed, and the appeal was heard by the House of Lords in November, 1879, and again in November, 1880, in the presence of the following judges, viz. Pollock, B., Field, Lindlcy, Manisty, Lopes, Fry, and Bowcn, JJ., to whom certain questions were put. The House of Lords {Lords Selborne, L.C., Coleridge, Penzance, Blackburn, and Watson) reversed the judgment of the Court of Appeal, and held, that a right to such support may be acquired for a newly erected or altered building by twenty years' uninterrupted enjoyment, and is so acquired if the enjoyment is peaceable and without deception or concealment, and so open that it must be known that some support is being enjoyed by the building ; that such a right is an easement within § 2 of the Prescription Act, 1832 ; and that the SUPPORT 329 plaintiffs could sue the owners of the adjoining house and the builder for the damage. D ALTON V. ANGUS. (1881) 6 A. C. 740; 4 Q. B. D. 162 ; 50 L. J. Q. B. 689 ; 44 L. T. 844; 27 W. li. 625 ; 30 W. R. 191. Different Owners of Adjoining Tenements. — The defendant caused certain premises, over sixty years in existence and therefore ancient buildings, to be rebuilt, without any notice to the plaintiff of his intention to do so ; and in the course of the work the premises of the plaintiff adjoining, and also more than sixty years built, sustained damage by reason of the defendant withdrawing there- from the support of certain parts of the defendant's premises. The plaintiff brought an action for an injunction and damages against the defendant, and Hall, V.C., gave judgment for tlie plaintiff, and held, that where ancient buildings belonging to different owners adjoin each other, there is a right of support from the building, as well as from the land, and this right can be claimed under the provisions of the Frcscrix)tion Act, 1832. The mere fact that the support is derived honi the property of an ecclesiastical corporation does not prevent the right of support from being acc[uired. But the enjoyment of the right must have been open, and not surreptitious. In this case the contractor was added as a defendant, and both he and the owner were held jointly liable for the damages and costs. LEMAITRE v. DA VIS. (1881) 46 J. P. 324; 19 Ch. D. 281 ; 51 L. J. Ch. 173 ; 46 L. T. 407 ; 30 AY. E. 360. • Excavations. — The defendant excavated ou his land with a view to building. A house standing on the plaintiff's adjoining ground, within 4 feet of the excavations, was injured by reason of the excavations. It was proved that the weather became very wet after the work began, and partly caused the injury. There was an allegation of negligence against the defendant, and some evidence to show that the wall, which was injured and had to be rebuilt, was rotten, was pressed upon by a great weight of rul)bish on the plaintiff's premises, and in any event would not have stood longer than six months. Bolland, B., entered judgment for the plaintiff on the finding of a jury. The defendant obtained a rule for a new trial, which the Court {Dcnman, C.J., Littlcdalc, Taunton, and Williams, JJ.) discharged. DODD y. HOLME, (1834) 1 Ad. & E. 493; 3 N. & M. 739. 330 suprORT Excavations. — The plaiutiff and the defendant were owners of adjoining lands. For more tlian twenty years the plaintiffs house had been supported hy the land of the defendant. The defendant excavated foundations for some huildings, which he proposed to erect on his land, so near the plaintiff's house that it fell. In an action to recover damages, Farke, B., directed the jury that if the plaintiff's house had been so supported, and both parties knew it, the plaintiff had a right to such support as an easement, and that the defendant could not withdraw that support without being liable in damages, such as would put the plaintiff in the same position as he was in before, l»ut the jury ouglit not to give him a new house for an old one. JIIDU V. THORNBOBOUGH. (1846) 2 Car. & Kir. 250. -Gable. — The plaintiff built, between 1854 and 1856, certain workshops, the gal>le of which rested upon a wall not on his land, but the remaining part of the worksliops were upon land which he had agreed to purchase under a building agreement, and partly ui)on other land which had been laid out as a street. The plaintiff covenanted with the vendor that, on tliree months' notice given, he would form, pave, and macadamise a certain carriage-road, and also the land laid out as a new street. The formation of the new street was abandoned. The defendant, in whom the land was subsequently vested, pulled down part of the wall in 1882, and the plaintiff brought an action for an injunction to restrain him from so doing. Denman, J., held, that the enjoyment of support from the wall, although enjoyed for more than twenty years, was not of right, and that, therefore, no easement was acquired. TONE v. PRESTON. (1883) 24 Ch. D. 739 ; 53 L. J. Ch. 50 ; 49 L. T. 99 ; 32 W. 11. 166. Mutual. — Where several houses belonging to the same owner are built together so that each requires the mutual support of the adjoin- ing house, and the owner parts with one of the houses, the right to such mutual support is not thereby lost, the legal presumption being that the owner reserves to himself such right, and at the same time grants to the new owner an equal right, and consequently, if the owner parts with several of the houses at different times, the possessors still enjoy the right to mutual support, the right being wholly independent of the question of the priority of their titles. RICHARDS V. ROSE. (1853) 9 Ex. 218 ; 2 C. L. E. 311 ; 23 L. J. Ex. 3 ; 17 Jur. 1036. SUPPORT 331 Neglect to repair Wall. — In 1857 the defendants demised a house, separated, up to the iirst floor, from the adjoining premises l)y a gateway, for a term of twenty-one years, tlie lessee covenanting to repair all party walls. In 1865 they demised tlie adjoining house with the gateway thereunder to the plaintifl", with similar covenant, for a term of eleven and a quarter years. The party wall Ijetween the first-mentioned house and the gateway was not repairahle hy tlic plaintiff, nor l)y the defendant, under tlieir covenants. In 1874 a portion of the party wall aljove the gateway was giving way owing to failure of support from the lower part of the party wall, wliich liad hulged in conse({uence of the pressure from the plaintiff's premises. The plaintiff brought an action for damages against the defendants for failing to maintain a wall supporting the plaintiffs house. The Court {Cockhurn, C.J., Mellor and Quain, J J.) held, in a considered judgment, that there was no implied covenant on the part of the defendants to support the plaintiffs premises, although it might be an answer to an action upon the plaintiffs covenant to repair, that the repair had been rendered impossiljle by the neglect of some precedent obligation on the part of the defendant. COLEBECK V. GIBDLEES' CO. (1875) 1 Q. B. D. 234; 45 L. J. Q. B. 225 ; 34 L. T. 350; 24 W. K. 577. Negligent Excavations.— In 1803 the plaintiffs house was built against the pine end wall of the defendant's house, by permission. In 1829 the defendant made an excavation in a careless and negligent manner in his own land and near his pine end wall, by which he w^eakened the latter, and consequently caused injuries to the house of the plaintiff. In an action tried before Goulhurn, J., the jury awarded the plaintiff £50 damages. On appeal, the Court (Garrovj, Vaiujhan, and Bolland, BB.) held, that the action was maintainable, and dismissed the appeal. BROWN V. WINDSOR. (1830) 1 C. & J. 20. Negligent Shoring. — The plaintiff and the defendant were owners and occupiers of two adjinuing houses. For the purpose of rel)uilding his house, the defendant contracted witli a certain builder, tlie contract providing infer alia tliat the l»uilder was to take upon himself the risk and responsibility of shoring up and supporting the adjoining premises, and make good any damage occasioned to tliem in consequence of the building works. The 332 suproRT Ituilder excavated for fouudatious to a lower depth tlian tlic plaintiffs foundations, and owing to defective iinderpiuuiug, or want of other support to the plaintiffs walls and soil, the plaiutifl''s house \vas injured. In an action against the owner for damages, it was contended that he was not liable, and that in view of the express stipulations of the builder's contract, tlie builder was in default, and was liable. Field, J., entered judgment for the plaintiff. On licaring a rule obtained by the defendant, the Court {Cod'lmrn, C.J., Mcllur and Field, JJ.) held, \\\ a considered judgment, that the defendant was liable, even if the builder's undertaking as to risk had amounted— wliich it did not — to an express stipulation tliat the Imilder should do, as part of the works contracted for, all that was necessary to support the plaintiffs liouse. BOWER V. PEATF. (1875) 1 Q. B. D. 321 ; 45 L. J. Q. B. 446 ; 35 L. T. 321. -Removal of House next that adjoining. — Tlie plaintiff's house was built on a hill with a descent towards the west. The next house l)ut one belonged to the defendants. For upwards of tliirty years the three houses had been out of the perpendicular, leaning towards the west. The defendants' house was the lowest and westernmost of the three, and on the expiration of the lease, they agreed to grant a lease of it to a lessee on condition that tlie lessee would relniild it. The lessee pulled down the house, and in C(jnset[uence, the adjoining house sunk further to the west, so that the plaintiffs house, liaving lost the support of the middle house, fell. The plaintiff l)rought an action, and Martin, B., directed a nonsuit. On hearing a rule, the Court (Pollocl, C.B., Bramwell and Martin, BB.) held, that the defendants' house not adjoining the plaintiffs house, the plaintiff liad no right to support from the defendants' house, and discliarged the rule. SOLOMON V. VINTERS' CO. (1859) 4 H. & N. 585; 28 L. J. Ex. 370; 5 Jur. 1177; 7 W. li. 013. -Right to. — The plaintiff purchased, from the Corporation of Liverpool by private treaty, a plot of building land to be built upon according to plans to be approved by the Corporation. Such plans were duly ajjproved l)y tlie Corporation in May, 1869, and according to the drawings the proposed buildings extended to the edge of the plaintiffs land on every side. Tlie plaintiff pulled down old buildings which were on the site, and laid his foundations 8 feet 3 inches froiu the surface instead of 10 feet 9 inches as SUPPORT 333 shown on the plans, the inspecting officer of the Corporation making no objection to this deviation. In August, 18C9, the defendant purchased the adjoining plot from tlie Corporation. The defendant in 1881 proposed to huild, and excavated for his founda- tions to a greater depth than the depth of the plaintiffs foundations, which were thereby endangered. The plaintiff sought an injunction to restrain the threatened injury, and Bristoicc, V.C. of Lancaster, granted a declaration that the plaintiff was entitled to the support claimed, and ordered the defendant to pay the costs of the under- pinning done by the plaintiff, and the costs of the action. The defendant appealed, and the Court (Jessel, M.R., Cotton and Brett, Z.JJ.) hid, that the plaintiff was entitled to the injunction claimed, because there was not enough, in the special circumstances of the case, to take away the right of support from the adjoining lands of the grantor wliich is implied in a grant of land for the purpose of building. BIGBY V. BENNETT. (1882) 47 J. P. 217; 21 Ch. D. 559; 40 L. T. 47; 31 W. E. 222. Sinking a Well. — The defendant dug a well near tlie plaintiffs land, which sank in consequence, and a building erected upon it within twenty years fell. It was proved that if the building had not been on the plaintiff's land his land would still have sunk, but the damage would have been inappreciable. At the tiial, Erie, C.J., entered judgment for the defendant on the findings of the jury. On hearing a rule, the Court {Erie, C.J., Byles and Monta(/ue Sjnith, JJ.) held, that the plaintiff had no cause of action. SMITH X. THACKEBAH. (1866) L. Pv. 1 C. P. 564; 35 L. J. C. P. 276 ; 12 Jnr. 545 ; 14 L. T. 761 ; 14 W. P. 832. Subsidence caused by Stones piled up. — The plaintiff held under a grant made for building purposes more than twenty years prior to the date of certain injuries complained of. The defendants were the successors in title of the gi-antors, and piled up stones on their land immediately adjoining a house built by the plaintiff, causing a subsidence, and injury to the plaintifi^s house. In an action by the plaintiff for damage caused by the deprivation of the right of support, the jury found for the plaintiff, and assessed the damages. The defendants appealed, and this judgment was affirmed. GBEEN V. BELFAST TBAMWAYS CO. (1888) L. P. Ir. 20 C. L. 35. 334 surroRT Withdrawn by working Mines near. — If a party builds a house ou his own hiud which has previously Ijceii excavated to its extremity for mining purposes, he does not acquire a right to support for the house from the adjoining laud of another, or at least until twenty years have elapsed since the house first stood on the excavated land and was in part supported Ly the adjoining land; so that a grant by the adjoining owner of such right to support may l)e inferred. Such rights can only have their origin in grant. Therefore the owner of the adjoining land is not liable to an action if within such period he works mines under his own land so near its l)Oundary as to cause the excavated land on which the house stands to subside, and the house to become thereby injured. TAUTllIBGE v. HCOTT. (1838) 3 M. & W. 220 ; 1 H. & II. 31 ; 7 L. J. Ex. 101. Withdrawn through Builder's Negligence. — A firm of builders were employed to pull down certain premises and erect upon the site thereof new l)uildiugs. In doing so the adjoining premises sustained injury, and the owner brouglit an action against the builders for damages for depriving his premises of the support of the l»uildings pulled down, for negligence, and also for trespass. At the trial before Kenny, J., the jury assessed the damages at £150, but judgment was entered for the defendant. On appeal, the Court {Tallcs, G.B., and others) held, that where an easement of support is claimed by the owner of one of two adjoining houses, which have not a common origin, against the owner of the other, it must be proved that the owner of the servient tenement knew, or had tlie means of knowing, that his house was affording support to the other. GATELY v. MARTIN. (1900) 2 Ir. R 269. From Wooden Struts. — For twenty years the east wall of certain premises had been supported by six struts fixed between them and a neighbouring building. The latter was acquired by a local authority under the Artisans Dwelling Act, 1875, and the Metropolis Improvement Act, 1877, with a view to pulling it down. The owner gave the local authority notice that he claimed an easement of support, whereupon the local surveyor certified the supported premises to l)e a " dangerous structure." The owner then brought an action for an injunction against the local authority to restrain them from removing or interfering with the support claimed, and Pearson, J., held, that Ijy § 20 of the Act of SUPPOllT 335 1875 the caseiiient was extinguislicd, Ijut the owner was cntith^d to compeusatioii. SWAINSTON V. FINN & THE METROPOLITAN EOARD OF WORKS. (1883) 52 L. J. Ch. 235 ; 48 L. T. G34; 31 W. E. 408. SURETY Guaranteeing Cost of Materials. — A builder entered into a contract, and his sureties guaranteed that if a hrickniaker would su})ply the Iniilder with bricks, he would be paid out of the money payable under the contract to the builder. The Inickmaker allowed the builder to retain the early instalments. Tlie buUder subse- quently executed some extra work, but shortly after his contract was determined owing to his default. The sureties assented to the cost of completing the works by anotlier builder being deducted from the amount payable under the contract, and it was then found that the Italance was iusufiicient to pay for the extra works. In an action by the brickmaker upon the guarantee, Parhc, B., entered judgment for the plaintiff. On motion by the defendant for a nonsuit, the Court {Parke, Bollandy Alderson, and Gurney, BE.) held, that as payment had not been made to the guarantors, the guarantee was not broken, and that it did not attach, unless the whole amount of the contract was paid over. HEMING V. MALINE. (1835) 4 L. J. Ex. 245 ; 2 C. M. & E. 385 ; 1 Gale, 206 ; 5 Tyr. 887 ; 1 Jur. (o.s.) 893. Guarantees Honest Work. — Two of the defendants were sureties for the due performance of a contract to construct certain sewers " well and truly." The contractors concealed certain work, which they had executed in a defective manner, from the knowledge of the plaintiffs' superintending engineer, who gave his final certificate, believing the work had been properly done. Six months after obtaining this certificate the contractors were paid certain moneys which had been retained from the instalments, and which were by the contract payable six months after the final certificate. In an action by the local authority against the con- tractors and the sureties, Grantham, J., upon the findings of the jury, gave judgment against all the defendants for damages to be ascertained by a reference. The sureties appealed. The Court {Lord Eshcr, MR., Bowcn ami A. L. Smith, L.J J.) held, that the non-exercise by the plaintiffs of their right of super- intendence did not discharge the sureties from liability, nor were 336 SURETY they discharged because the plaintiffs' engineer had given his final certificate, inasmuch as the giving of the certificate did not pre- judice the sureties. Both the certificate and the retention money had been obtained by the contractors l)y a dishonest performance of the work, against which the sureties had guaranteed the plaintiffs. MAYOR, &c., OF KINGSTON- UrON- HULL v. RAIWING. (1892) 57 J. P. 85 ; 2 Q. B. 494; G2 L. J. Q. B. 55 ; 4 l\. 7; 67L. T. 539; 41 W. E. 19. SURVEYOR Certificate. — Tlie plaintiff agreed to build certain houses for the defendant. By the terms of the contract instalments on account thereof were to be paid only upon production l)y the ])laintiff of certificates signed by the defendant's surveyor. Some of the instalments were duly paid. The plaintiff sued the de- fendant for the balance due, but he was nonsuited l)y Pollocl; C.B. He appealed, and the Court (Pollock, C.B., and others) held, in a considered judgment, that the want of a certificate was a good defence to the action, and that the plaintiff was not at liberty to ])rove that such certificate was withheld by fraud. MILNER V. FIELD. (1851) 5 Ex. 829 ; 20 L. J. Ex. 68. Certificate Conclusive. — The surveyor of the corporation of a city certified, under the provisions of their private Act, that there was imminent danger from a building, of which the plaintiff was owner and occupier, and the town clerk directed the surveyor to cause the building, referred to in his certificate, to be taken down, or repaired in such a manner as he should tliink requisite. The surveyor thereupon employed a builder to do the work, and the corporation recovered the cost from the plaintiff. In an action T)y tlie plaintiff to recover damages in respect of injury to his possessory and reversionary interest in the premises and to his stock, tried before Willes, J., a verdict was taken by consent, subject to a case. The Court {Lord Coleridge, C.J., Keating and Denman, J J.) held, in a considered judgment, that tlie certificate of the surveyor was conclusive, and could not be (piestioned in an action to recover back the money so paid ; that tlie acts of the surveyor, authorized by the town clerk, were acts of the corporation ; and that the general word " Building No. 95, Market Street," used in the notice was sufficient to cover 95, SURVEYOR 337 Market Street, and the plaintiff's adjoining house, althougli the latter was in the next street and was separately assessed to rates, CHEETHAM v. MANCHESTER COPd'OIlA TION. (1875) L. 1{. 10 C. P. 249 ; 4-i L. J. 0. V. 139 ; 32 L. T. 28. Certificate Conclusive. — A contractor agi-eed with the de- fendants to execute " titc several worlcs" specified therein, according to the provisions of the contract and the conditions attached thereto. It was further provided that the contractor was to keep in repair " the several ivorks," including any additional works executed, for a period of three months after the completion thereof. Some delay and difficulty arose in carrying out the contract, but ultimately the surveyor gave his iinal certificate, which by the contract was to be conclusive, showing that a certain sum was payable to the contractor. Tlie defendants dismissed tlie surveyor and appointed another in his place. In an action brought by the contractor at the expiration of the tlu'ee months, to recover the balance certified by the late surveyor, the defendants counterclaimed for penalties for delay, the cost of defects appearing within the tluee months, and repayment of sums certified 2il(ra vires by the surveyor. On a reference the arljitrator found for the plaintift' on the claim and counterclaim, the defendants appealed, and the Court {Mathew and Bruce, JJ.) referred the case Ijack to the Official Referee to rehear the counterclaim. The plaintiii' appealed, and the Court {Lord Esher, M.R., and Lopes, L.J.) dismissed the appeal. At the rehearing, the Official Referee gave judgment for the defendants on the counterclaim, and the Divisional Court (Lord Coleridge, C.J., and Lopes, L.J.) dismissed the plaintiff's appeal to set aside that judgment. CUNLIFFE V. HAMPTON WICK LOCAL BOARD. (1892) H. B. C. 256. Certificate withheld. — The plaintitls contracted to do certain building works for the defendants for a fixed sum, to be paid to the plaintiffs on production of the certificate of the defendants' surveyor that the works had been duly executed. After part of the work had been paid for, the surveyor withheld hi« certificate for the balance alleged to be due to the plaintift's. In an actimi by the plaintiffs for the balance alleged to be due, the Court {Erie, C.J., Williaias, Willes, and KeiUing, J J.) held, that the plaintifls had no cause of action. CLARKE V. JVATSON. (1864) 34 L. J. C. P. 148; 18 C. B. (n.s.) 278 ; 11 L. T. 679 ; 13 W. P. 345. M.B.C. Z 338 SUEVEYOR Certificate of Completion never given. — A Iniilder contracled to erect certain houses on laud belougiug to the defendant, according to plans aud specification, under the supervision of the defendant's sur\'eyor. The houses were to he completed by a certain date, and in case of default, the builder was to pay £5 for every week they remained unfinished. Each instalment to which the builder was entitled was to be certified by the surveyor, and the last instal- ment was payable within three days after his final certificate. ]iy agreement the time fixed for completion was extended. To secure certain advances to the builder by the plaintift', the defendant gave to the latter a promissory note for £110, payable on the completion of the houses according to contract. The builder completed the work, but no certificate of completion was ever given by the surveyor. In an action on the guarantee, the jury found the houses liad been completed before the action was brought, and Huddleston, 1!., entered judgment for the defendant. On appeal, the Court {BaggaUay, BraimvcU, and Thcsigcr, L.JJ.) reversed the decision of Ihiddleston, B. On appeal by the defendant, the House of Lords {Lords Sclhornc, L.C., Blaclbicrn, and Watson) affirmed the judgment of the Court of Appeal, and held, that the jury's finding was conclusive, and that the surveyor's certificate was not a con- dition precedent to payment under the guarantee. LEWIS v. HOARE. (1881) 29 W. E. 357 ; 44 L. T. 66. As Contractor. — The defendant, the owner of certain premises. contracted with a surveyor to do certain work therein. The latter ordered goods from a tradesman for use in the defendant's house. In an action by the tradesman against the owner for goods sold and delivered, the Court iLcld, that the owner was not liable. BRAMAH V. ABINGDON. (1812) 15 East. 66 ; 3 F. & F. 143, n. Custom. — The defendants employed an engineer to act for them in certain proceedings. The engineer directed a firm of surveyors to make certain surveys and reports. In an action by tlie surveyors for fees, it was alleged that, in tlie absence of any contract or agreement, there was a custom to pay according to Eyde's scale, irrespective of difficulty or time occupied. Day, J., held, that there was such a custom, and that the defendant's engineer knew of such custom, and he gave judgment for the plaintiff according to Eyde's scale. BUCKLAND v. PAWSON. (1890) 6 T. L. E. 421. SUIIVEYOR 331) ■ Employment. — The guardians of a certain union contracted under seal with a surveyor in respect of certain plans and surveys. Subsequently the surveyor was requested hy the guardians to prepare a reduced plan and to attend special sessions to support the union in certain appeals. The latter services formed no part of tlie work contracted for under seal. In an action hy the sur- veyor to recover his fees in respect of the extra services rendered, Patterson, J., reserved certain points, and the jury found for the plaintiff. On hearing a rule, the Court {Lord Dcnman, C.J., and others) held, in a considered judgment, that the guardians could not bind themselves by an order not under seal for such work, not being a contract necessarily incident to the purposes for which they were made a corporation by the statutes 5 c& 6 Wm. IV. c. 69, § 7 ; and 5 & 6 Vict. c. 57, § 16 ; and it is not intended by 6 tC; 7 Wm. IV. c. 96, § 3, that the guardians of a union should make themselves lialjle for the expenses of such plan. PAINE V. STRAND UNION. (1845) 8 Q. B. 326 ; 15 L. J. M. C. 89 ; 10 Jur. (o.s.) 308. Fees. — The owner of certain land entered into an agreement with a builder to grant him leases of ninety-nine years of certain plots, as soon as the builder had erected certain houses thereon, at a peppercorn rent, until June 24, 1870, and thereafter at £28 per annum. The builder erected houses which were roofed in by September, 1870, and the owner became entitled to receive the first quarter's head-rent on September 29, 1870. The district surveyor surveyed the houses, and sent in an account of his fees to the liuilder, who became insolvent. The surveyor then claimed payment from the owner, against whom he took out a summons, upon which the magistrate ordered payment. The Court {Lush and Hannen, JJ.), on a case stated, held, that the owner was not liable as he was not the " owner " within the meaning of §§ 3 and 51 of the Metropolitan Building Act, 1855, and that the lessee had the power to let the houses and receive the profits, and was there- fore " owner." CAUDWELL V. HANSON. (1871) L. E. 7 Q. B. 55; 41 L. J. M. C. 8; 25 L. T. 595 ; 20 W. E. 202. Fees. — A lirm of builders erected certain school premises for the London School Board, and the district surveyor claimed to be paid by them the amount of his fees as district surveyor for wtjrk done in connection with the premises. The builders were sum- moned, and they contended that surveyors' fees were given by 340 "siJitVEYOR k § 15-4 of the London Building Act, 1894, but that where the work is done under ihQ Metropolitan Building Act, 1855, the fees payable are those given by that Act. The surveyor contended that the buildings in question were supervised under the later, and not the earlier, Act, and, therefore, the fees are those given by the later statute. The magistrate dismissed the summons, and on hearing a case, the Court {Kennedy and Darling, J J.) ajjirined the magis- trate's decision, and held, that the surveyor's fees were governed by the Act of 1855. MABSLAND v. WALLIS & SONS. (1901) 65 J. P. 166 ; 83 L. T. 761. Fees. — The appellant gave notice to the local authority of his intention to build under one roof fourteen new buildings, to be used as dwelling-houses or flats. He erected fourteen separate suites of rooms, each suite having a separate entrance from one common staircase, and there was only one entrance from the street. In the course of their erection the district surveyor from time to time inspected the work, and, on completion, sought pay- ment for his fees, which were calculated on the basis that each suite was a separate building. The appellant was summoned under § 51 of the Metropolitan Building Act, 1855, for non-payment of the surveyor's fees, and the magistrate ordered him to pay the full amount claimed, being of opinion that each suite was a separate l)uilding within the meaning of the Act. The Divisional Court (Lord Coleridge, C.J., and Matheiv, J.) held, in a considered judgment on a case stated, that the magistrate's decision was wrong, and allowed the appeal. From this decision the district surveyor appealed. The Court {Lord Esher, M.B., Fry and Lopes, L.J J.) ajjirmed the judgment of the Divisional Court, and held, that the separate suites were not buildings within the meaning of Fart I. Sch. II. of the Act, and, therefore, the district surveyor was entitled to one fee only in respect of the entire structure. MOUl V. WILLIAMS. (1892) 56 J. P. 197 ; 1 Q. B. 264 ; 61 L. J. M. C. 33 ; QQ L. T. 215 ; 40 W. E. 69. Fees. — A builder gave notice to a certain district surveyor of his intention to erect fifty-one arches under a public highway, and the surveyor measured and surveyed the proposed site. The arches varied in size, and, therefore, in course of erection had to be measured separately by the surveyor. Each arch or vault was SURVEYOR 341 open in front, and separated from tlie others by a pier of brick- work. Tlie surveyor claimed IO5. fee in respect of each arch or vault under tlie Metropolitan BuiMinrj Ad, 18o5, § 49, whereby the surveyor is entitled to a fee of 10,9. " for inspecting the arches or stone floors over or under public ways." The surveyor took out a summons claimiufi; £25 IO.9., being 10.9. for each vault, and the justice ordered payment of only 10.s. The surveyor appealed, and the Court ( Willes and Keating, J J.) held, that he was entitled to a fee of lO.s. in respect of each distinct Iniilding to which any number of the arches or vaults were to be appropriated, and that the magistrate's decision on such a summons is subject to appeal under 20 & 21 Vict. c. 43, notwithstanding § lOG of the Building Ad. POWER V. WIGMORE. (1872) L. TJ. 7 C. P. 386 ; 27 L. T. 148. Fees : 5 per cent. — A surveyor was employed by the defendant to measure certain work and to settle the various tradesmen's bills for the same. In an action by the surveyor to recover his fees, calculated at 5 per cent, on the total amount paid to the tradesmen, evidence was called to prove that 5 per cent, on the expenditure was the customary charge. The defendant had paid into Court half the amount claimed, contending that 2^ per cent, was reasonable. Lord Kcnyon held, that a surveyor is to be paid according to his labour, and not according to the amount of the bills he looks over and settles, and the plaintiff consented to a nonsuit. UPSDELL V. STEWART. (1794) 1 Peake (N. P.) 255. Fees : 5 per cent, held Reasonable. — Tn an action by a firm of surveyors for fees for superintending certain alterations in the defendant's house, 5 per cent, on the total outlay was claimed. Tlie defendant objected that that sum was too large, especially since in making such a charge the surveyors were interested in increasing the expenditure. Lord Ellcnborough, C.J. left it to the jury to say whether the claim was reasonable or not, and they found for the plaintiff for the whole amount. CHAPMAN V. DE TASTET. (1817) 2 Stark (N. P.) 294. Fees : Ryde's Scale. — Upon taxation of a bill of costs the Taxing !Master allowed an item of £73 as remuneration of the 342 SURVEYOR surveyor, who liad heou employed Ly the defendants to survey and report upon the value of certain property they proposed to purchase. That sum was the amount of commission on £12,150, the purchase price, as fixed hy Eyde's scale. On hearing an application made to the Court to direct the master to review his taxation in respect of that item, on the ground tliat the surveyor was only entitled to Le paid on a quantum meruit, Lord Romilhj, MM., held, that the question was one of amount and not of principle, that the Court would not interfere, and that if it were a question of principle, a prevailing practice of paying surveyors by commission ought u-ot to be disturbed. ATTORNEY-GENERAL v. DRAPERS' GO. (1869) L. R. 9 Eq. 69 ; 21 L. T. 651. (See also p. 384 infra. Landlord not an Owner Liable for Fees. — Tlie owner of certain land leased the same on several building leases under which he was to receive for the first year a peppercorn, for the second £6, and for the third £12 rent. One of the lessees had entered and built upon his plots several houses, and had not paid the district surveyor's fees, due under § 51 of the Metropolitan Building Act, 1855, when the lessor became bankrupt. The surveyor sought to recover his fees from the landlord, and the magistrate made an order for payment. On hearing a case, tlie Court {Lord Gamphell, G.J., Eric and Grompton, JJ.) held, that the landlord is not an " owner " within the meaning of § 3 of the Act, so as to make him liable to pay the surveyor's fees, the builder having become bankrupt. EVELYN V. WLUGHGORD. (1858) El. Bl. & El. 126 ; 27 L. J. M. C. 211 ; 4 Jur. N". S. 808 ; 6 W. li. 468. Limitation of Time for recovering Fees. — The owner of an estate contracted with a builder to erect certain houses upon it. The houses were erected, and the owner paid the builder the amount of the contract, which included any fees which the builder was liable to pay the district surveyor for the district, under the London Building Act, 1894. § 154 of that Act provides that such fees are payable at the exi)iration of fourteen days after the roof of the building surveyed is covered in, hy the builder, or, in his default, by the owner or occupier, and may l)e summarily recovered on it Ijeing shown to the satisfaction of the Court that a proper bill specifying the amount of the fees was delivered to him. The roofs of the houses had been covered in before December, 1899. Proper bills were delivered, and payment was demanded SURVEYOR 343 of the builder from time to time from January 17, 1900, to September 10, 1900. In July, 1900, tlic builder gave notice to the district surveyor that he was insolvent. On October 20, 1900, proper bills were served on the owner and payment demanded, Init lie contended that he became lialjle, if at all, immediately upon the builder making default in payment, i.e. in January, 1900, and that, therefore, the surveyor did not take proceedings to recover the same witliin six months fixed by § 11 of tlie Summary JurUdiction Act, 1848. The magistrate ordered the owner to pay. The Court {Lord Alvcrstone, C.J., and Lmorancc, J.), on a case stated, held, that the period of limitation under § 11 does not begin to run until the bill has been delivered to the party from wlinm the fees are sought to be recovered in a summary manner. CORBET T V. BADGER. (1901) 65 J. P. 552; 2 K. B. 278; 70 L. J. K. B. 640; 84 L. T. 602 ; 49 W. E. 539. Negligence. — A surveyor was employed by two trustees to survey certain premises, with a view to a proposed loan thereon. The surveyor reported that the house was worth £1800, and was good security for the proposed loan of £1000, which the trustees advanced. The builder did not complete, and got into difficulties, and the plaintiffs were obliged to spend £400 in a foreclosm-e suit, the house fetching only £810 when sold by auction. In an action by the trustees against the surveyor for negligence. Wills, J., gave judgment for the plaintiffs for £200, and lield, that a siu-veyor employed to value for the purposes of a mortgage, is bound to use competent care and skill in inquiring as to the data upon wliich he values the premises, but is not bound to inquire into the financial position of the 1.)orrower, or into the nature of the title oiiered. BECK v. SMIRKE. (1894) Times, January 22; H. B. C. 116. Negligence. — The mortgagees of certain property engaged a surveyor to advise them upon its value. The surveyor accepted their retainer, and reported that the property afforded ample security for the amount of the proposed loan. On the faith of his report, the mortgagees advanced a much larger sum than the premises fetched when realized to satisfy repayment of the loan. In an action by the mortgagees for damages for negligence, the defendant denied the retainer, and alleged he was acting solely for the mortgagor. The jury on the facts found that the survevor had 344 SURVEYOR been retained, but, liad not been negligent. In the second action by one of the mortgagees, tlie jury found negligence. CBABB V. BRINSLEY. (1888) 5 T. L. E. 14. Negligence. — l^.y a contract in writing a builder agreed to execute certain drainage works, including the laying of the pipes at a depth of 3^ feet below the surface of the ground. The work was to be carried out to the satisfaction of an inspector appointed by the employer. The inspector, however, omitted to inspect the work, and issued certificates upon whicli the builder was paid from time to time. Sul.)se(piently the employer ascertained that the drains liad not l)een laid 3^ feet deep, and refused furtlier j)aynient. In an action ])y the contractor for the balance due, the Slieriff held, that he could not recover, having failed to execute liis part of the contract, and tliat the employer was not entitled to damages as the inspector had not oltjected to the work. MULDOON v. BBINGLE. (1882) 9 Ct. of Sess. Cas. (4th Ser.) E. 915. • Owner is the Owner at the Time the Fees became Due. — A Ijuilder gaA'e notice to a district surveyor of his intention to erect certain liouses in tlie district, under the Metropolitan Building Act, 18."."), § 38. The liouses were in due course inspected and roofed in on July 9, 18G6. On August 9, 186G, the surveyor became entitled to receive his fees in respect thereof, payal)le under § 51 of the Act, by the " builder, owner, or occupier." The surveyor demanded his fees from a subsequent purchaser who was not tlie " owner," builder, or occupier in 1866, w'hen the fees became due, and in 1870 summoned him before a police magistrate, who ordered payment subject to a case. On hearing the case, the Court (Blackburn, Mcllor, and Lush, J J.) held, that the word " owner," used in the Act, meant owner at the time tlie fees Itecame due, and that the magistrate's decision was therefore wrong. TUBE V. GOOD. (1870) L. E. 5 Q. B. 443 ; 39 L. J. M. C. 135 ; 22 L. T. 885. Refasal to Certify. — The defendants employed an ironmonger to execute certain works l)y a specified date, " to the satisfaction of T. their surveyor," and payment was to be made on a given day, "in case the said surveyor shoidd certify that the same was completed agreeably to the contract." In an action l)y the ironmonger for the amount SURVEYOR 345 of ilic coutract ou the refusal of the surveyor to certify, it was argued on belialf of the defendants that tlic hill should be dismissed, as the plaintiff had his remedy at common law, it being a direct issue to try whether the certificate was or was not properly withheld by the surveyor, and the surveyor having no right to arbitrarily refuse to certify ; and upon this ground the Master of the Bolls dismissed the bill. MOSEE V. ST. MAGNUS, &c., CIIUnCIIWABDENS (1795) 6 T. E. 716. Salary of. — The town surveyor of Eamsgate Corporation was appointed at a certain annual salary, with an office, assistants, fuel, and light, and the privilege of taking pupils. He was required by the by-laws to devote the whole of his time to the duties of his office, and to prepare the necessary plans and specifications for all works to be done. Under contracts entered into by the Corporation and certain contractors, pursuant to the provisions of the PuUic Health Act, 1875, the surveyor was to be paid by the contractors for the bills of quantities prepared by him. The Corporation also employed the siu-veyor apart from his ordinary duties to superintend certain drainage works, and agreed to remunerate him l)y paying him a percentage on the total outlay. In an action la-ought to recover penalties under § 193 of the PuUic Health Act, 1875, Mathno, J., held, that the sur\eyor was liable for the penalties, as Iiaving been " concerned and interested " in the contracts within the meaning of § 193, in respect of receiving both the cost of the bills of quantities, and also the percentage remuneration. WHITELEY v. BABLEY. (1888) 52 J. P. 595 ; 21 Q. B. D. 154, 196 ; 36 W. E. 553, 823 ; 57 L. J. Q. B. 643 ; 60 L. T. 86 Valuation by. — The tenant for life, of certain lands, agi-eed to sell them to a water company, who paid a certain sum into Court under § 9 of the Lands Glauses Gonsolidation Act, 1845. A dispute having arisen as to a claim by the vendor for interest, the latter raised the objection that the valuation by two surveyors had not been made, as required by the Act, on a sale to a limited owner, and he refused to convey until the Act was complied with. The company issued a writ claiming specific performance of the agi-ee- ment, and Chitty, J., held, that the requirements of the Act must be strictly complied with, and that the absence of a declaration in writing, annexed to the ^'aluation and suljscribed by the surveyors. 346 SUllVEYOR was fatal to the claim for specific performance, although the valuation was made by surveyors without formal appoiiituient. BBJDGEND GAS & WATER CO. v. DUNIIAVEN. (1886) 31 Ch. D. 219; 55 L. J. Ch. 91; 53 L. T. 714; 34 W. E. 119. -Want of Skill. — In response to the defendants' advertisement the plaintiff, who was a road surveyor, submitted plans, &c., for a scheme of waterworks, which were accepted by the defendants with a full knowledge of the plaintiff's standing. The plaintiff made surveys, &c., and a provisional order was obtained, and tenders for the work were invited. Owing, however, to the fact that the lowest tender was greatly in excess of the plaintiff's approximate estimate, the work was not proceeded with. The plaintiff sued tlie defendants for his fees in respect of the work he ]i;ul })erformed, and the latter pleaded want of due and reasonable skill in the plaintiff. The jury found for the plaintiif in tlie sum of £300. HENRY v. BELFAST GUARDIANS. (1879) Macassey & Strahan, p. 39. TEMPORAEY STANDS In the Street. — A number of stands were erected in the City of Westminster to enable spectators to view the funeral procession of her late Majesty Queen Victoria, on February 14, 1901. The question was whether "Westminster Corporation or the London County Council was the proper authority, under the London Building Act, 1894, to control and licence such structures, to take proceedings against persons erecting the same without licence, and by its district surveyor to inspect them. By the London Government Act, 1899, the power, under § 84 of the London Building Act, 1894, to licence the erection of wooden structures and power to take proceedings for default in obtaining or observing the conditions of a licence under that section, was transferred from the County Council to tlie Corporation of West- minster. The Court (Lord Alverston, C.J., Darliny and ClianncU, JJ.), on a case stated under § 29 of the London Government Act, 1899, held, that a structure made wholly of wood, except so far as nails are used in its construction, and erected for the temporary purpose of enabling the public to view a spectacle, is a wooden structure within the meaning of § 84 of the London Building Act, 1894, and the power to license the setting up and to take proceedings in TEMrORAUY STANDS 347 respect of the same, is transferred by the London Government Act, 1899, from the London County Council to each of the horougli councils set u]) hy that Act as respects its l)orougli. WESTMINSTER COIIPOIIATION v. LONDON COUNTY COUNCIL. (1902) 6G J. P. 199; 1 K. B. 32G ; 71 L. J. K. B. 244; 8G L. T. 53 ; 50 W. II. 429. TEMPORARY STRUCTURE ■ Mandamus. — The London County Council applied for a sunmions for an alleged offence under § 13 of the Metropolis Manar/ement and Building Acts Amendment Act, 1882, which pro- hibits the erection of a temporary wooden structure without the licence of the local authority. That Act was repealed by the London Building Act, 1894. Application for the summons was made on May 17, 1897, and the information alleged that prior to January 1, 1895, the ofTence complained of was committed, and had been con- tinued subsequent to that date contrary to § 13 of the Act of 1882. The magistrate refused to grant the summons, and the Loudon County Council obtained a rule. The Court {Wright and Ken- nedy, J J.) held, that the only liabilities saved by § 215 of the London Building Act, 1894, were those incurred on or before January 1, 1895, and that proceedings for these were barred by § 11 of i\\Q Summary Jurisdiction Act, 1848, and discharged the rule. R. V. CLUER; EX PARTE LONDON COUNTY COUNCIL. (1897) 67 L. J. Q. B. 36 ; 77 L. T. 439. Mission Hall. — The defendants were summoned for erecting (1) a building of wood without notice to or deposit of plans, &c., with a local authority, (2) a building not enclosed with walls of incombustible, &c., materials, (3) a house or building in advance of the building line. The building was a mission hall composed of wood, made in sections which admitted of being erected and taken down in a few days, and had a canvas roof, and was heated by a stove with chimney. Tlie magistrate found as a fact, that the building was intended for and actually used as a temporary structure, and that it did not constitute a building within tlie meaning of either §§ 40 or 41 of tlie Puhlic Ilcalth (Ir.) Act, 1878, and that the by-law, if applied to temporary structures, would be unreasonal)le ; and he accordingly dismissed the summons. On appeal, the Court {Lord O'Brien, C.J., ajid Boyd, J. ; Barton, J., dissenting) held, that the Act and by-laws in (question contemplated 348 TEMPORAPtY STRUCTURE ponnanent l)uil(liiii]js, and not temporary structures, such as the premises complained of, and affirmed the magistrate's decision. DUBLIN CORPOBATION v. IRISH CHURCE MIS- SIONS. (1901) 2 Ir. E. 387. -Shooting Galleries, &c. — The tenant of a vacant plot placed thereon, witliout leave of the London County Council, three caravans, a shooting gallery, and a steam rounda1)out. The caravans were distant 8 feet from the nearest street and 30 feet from the nearest huilding not helonging to the owner ; they were less than 30 feet from each other. On a summons, the magistrate found that all were structures or erections of a movable or temporary character within the meaning of 45 Vict. c. 14, and that none of them came within the exemptions of 18 & 19 Vict. c. 122, § 6, and he con- victed the tenant. The latter appealed, and the Court {Lord Coleridge, C.J., and Matlww, J.) held, that they were not " wooden structures or erections of a movable or temporary character " within the meaning of the Act, and may, therefore, be set up without the sanction of the London County Council, and the conviction was quashed. HALL V. SMALLPIECE. (1890) U J. P. 710 ; .^9 L. J. M. C. 97. Skating Rink. — The owner of certain premises applied for, and obtained, the permission of the Metropolitan Board of Works to erect a skating rink at the rear thereof, under § 56 of the Metro- politan Building Act, 1855, on condition that he would remove the proposed l)uilding within two years. The rink was erected in due course, and after two years had elapsed, on his neglecting to comply with a request to remove it, the owner was summoned under § 45 of the Act. The magistrate dismissed the summons, and, on hearing a case stated, the Court {Lvah and Manisty, J J.) ((ffirrned, his decision, and licld, that §§ 45 and 46 of the Metro- 2Jolitan Building Act, 1855, applied only to buildings in course of erection, and that the magistrate had no power to enforce the removal of the rink. PARSONS V. TIME WELL. (1880) 44 J. P. 296. TEMPORARY WOODEN STRUCTURE To carry on Business during Alterations. — A firm of l)uilders erected in the fore-court of a public-house, which they had TEMPORARY WOODEN STRUCTURE 349 coutiucteJ to repair, a temporary wooden structure for the purpose of therein euabling the business of the public-house to be carried ou during the alterations, but they had not obtained the licence of the Loudon County Council. On hearing a summons issued under the Metropolis Management and BiLildiiuj Acts Amendment Act, 1882, the magistrate held, that the structure came within the proviso in § 13, which allows a temporary wooden structure to be " erected by a builder for use during the alteration or repau- of any building," without a licence, and he dismissed the summons. On appeal, the Court {A. L. Smith and Gra^itham, J J.) held, that the magistrate was wrong, and remitted the case for conviction. LONDON COUNTY COUNCIL v. CANDLER. (1891) 55 J. r. 679; 60 L. J. M. C. lU. DOUBLE TENEMENT HOUSE Constitutes "I wo Buildings. — TIlc plaintitl's conveyed three adjacent lots of land to the defendant in fee-simple, subject to the following stipulations, viz. that no trade, business, or manu- facture should be carried on upon any lot ; only one house, ^'alued at not less than £300, was to be erected ou each lot ; no building should be erected until the elevations had been approved in writing by the plaintiffs' smveyor, and a copy of the design deposited with him. The defendant proposed to build ou each lot a double-tenement house, consisting of a ground-floor tenement and a first-Hoor tenement above it, each tenement being distinct from the other, without inter-communication, and having separate front doors and separate w.c.s. The cost of each tenement would be less than £300, but the cost of the two would exceed that sum. The plaintiffs' surveyor refused to approve the elevations on the ground that each tenement was a separate house, but the defendant proceeded to Ijuild. The plaintiffs brought an action, and moved for an interim injunction to restrain the defendant from building more than one house valued at least at £300 on each lot, or any building of which the elevation had not been approved on their behalf. Suinfen Eadij, J., held, that the proposed building constituted two houses within the meaning of a co^'enant not to erect more than one house on the site. Grant v. Langston (1900), A. C. 383, 399, followed. Kimher v. Admans (1900), 1 Ch. 412, distiuguislied (see p. 130 supra). ILFOIW PARK ESTATES, LTD. v. JACOBS. (1903) 2 Ch. 522; 72 L. J. Ch. 699; 89 L. T. 295. 350 THEATRES AND MUSIC HALLS THEATRES AND MUSIC HALLS Notice. — The London County Council served upon the plaintiffs a notice under § 11 of the Metropolis Management, &c., Act, 1878, requiring them to execute certain works at St. James's Hall. The Metropolitan Board of Works in 1885 had served upon the plain- tiffs a notice under § 11 in respect of the same building, and works were executed by the plaintiffs at a cost of £7000. Channell, J., in a considered judgment, held, that there w^as no power to serve a second notice under tliat section in respect of the same building. ST. JAMES'S HALL CO. v. LONDON COUNTY COUNCIL. (1901) 2 K. B. 251 ; 70 L. J. K. B. GIO ; 84 L. T. 5G8 ; -49 W. li. 572. TIME LIMIT Action against Public Authorities. — The plaintiff contracted with the defendants to adapt a certain building as a receiving house for pauper children. The works were started in February, 1900, but owing, as alleged by the plaintiff, to the action of the defendants, the works were not completed until May 3, 1901. The work, as done according to the contract, was certified Ijy tlic defendants' architect at £5751 15s. 2(1., and was paid for in Sep- tember, 1901. The plaintiff then claimed £1357 19s. for extra cost and loss, caused by the delay which he alleged was due to the action of the defendants, and this claim was referred to arbitration. A preliminary objection was raised at the arbitration that no portion of the plaintiff's claim could as a matter of law be recovered from the defendants, because the alleged acts of negligence by tlie defendants were committed prior to May 3, 1901, and proceedings were not commenced within six months of that date, as required l)y the Public Authorities Protection Act, 1893; and that the amount claimed became due, if at all, on or before May 3, 1901, and by the Poor Laio (Pai/mcnt of Pelts) Act, 1859, could only be paid within the half-year commencing March 30, 1901, or within three months thereafter. This action was l^rought by agreement to determine these two points of law. Farioell, J., held, that the claim arose in respect of a private duty arising out of a contract, and not for any negligence in perform- ing a statutory or public duty, and, therefore, the Public Authorities Protection Act, 1893, did not apply ; that the sum, if any, owing to the plaintiff did not become due within the meaning of the Poor TIME LIMIT d51 Laio {Payiiu'iil of Debts) Act, 1859, until the amount was ascertained by ail)itration according to the contract. SHAPdUNGTON Y. FULHAM GUARDIANS. (1904) 68 J. P. 510 ; 2 Ch. 449 ; 73 L. J. Ch. 777 ; 91 L. T. 739; 52 W. E. 617; 2 L. G. li. 1229; 20 T. L. E. 043. -For Complaint. — The owner of certain land Ijuilt thereon a number of houses contrary to the requirement of by-laws duly made l)y a corporation in accordance with their statutory authority. The houses were finished more than six mouths before the corpora- tion brought their complaint, and the magistrate dismissed the summons, holding that it came w^ithin § 1 (2) of 11 cO 12 Vict, c. 43, and therefore should have been brought within a period of six months. The Court {Cleasby, Grove, and Field, JJ.), on hearing a case stated, dismissed the appeal of the corporation, and held, that the words " order for the payment of money or otherwise " in § 1 includes all orders which a justice has power to make, and that the summons should have been brought within six months. MOB ANT V. TAYLOB. (1876) L. E. 1 Ex. D. 188 ; 45 L. J. M. C. 78 ; 34 L. T. 139 ; 24 W. E. 461. -For Completion of Contract.— A builder undertook for a certain sum to execute repairs to a number of houses and leave all the works completed on or before a specified day to the satisfaction of the defendant's surveyor, upon whose approval the builder was to receive payment. The builder failed to complete the repairs in the stipulated time, and the owner resumed possession, and refused to pay him for the work done. The builder sued the owner on the agreement, alleging that the owner had enlarged the time for completion, and for a reasonable price for work and labour d'>no according to the value thereof. The plaintiff was nonsuited, and, upon a rule to set aside the nonsuit, Lord Campbell, C.J., held, that there was no evidence to go to the jury to support the plaintiff's claim: he could not recover on the special count not having fulfilled his contract, and the fact that the owner took possession of the premises did not afford an inference that the time for completion had been enlarged by him, or of a contract to pay for the work done according to measure and value. MUNBO V. BUTT. (1858) 8 E. & B. 738 ; 4 Jur. 1231. 352 TRELLIS-SCIJEEN TRELLIS-SCREEN A Building. — The plaintiff demised a certaiu dwelling-liousc and gronnds on November 11, 1878, for a period of ninety-nine years, subject to covenants. Subsequently tbe premises became vested in tbe defendant for tbe unexpired term of tbe period of ninety-nine years, subject to tbe covenants in tbat demise. lu September, 1881, tbe plaintiff demised a piece of land, adjoining tbe north boundary of the premises demised on Novemlier 11, 1878, for ninety-nine years from Michaelmas, 1881, the lessee covenanting to erect thereon a building according to approved plans at a cost of £1200. Tbe lands demised by tbe plaintiff was part of a freehold estate of which he was tenant for life ^vith power of leasing. The lands leased in September, 1881, l»ecame vested in an assignee, who, pursuant to a covenant, com- menced to erect a dwelling-house 16 feet distant from the boundary fence dividing the lands demised in November, 1878, from those demised in September, 1881, with windows overlooking the defendant's garden. The defendant commenced to erect a trellis- work screen above the boundary fence without the lessor's consent, in alleged breach of his covenants not to erect any building without the lessor's consent, and not to cause annoyance to tbe adjoining occupier. In an action by the lessor for an injunction, llomcr, J., held, that, in the circumstances, the screen was a building within the meaning of tbe covenant, and that it also was an annoyance, and granted an injunction. WOOD V. COOFEIl (1894) 3 Ch. 671 ; 63 L. J. Ch. 845 ; 8 E. 517 ; 71 L. T. 222 ; 43 W. E. 201. TRESPASS By Cottage against Wall. — Tbe plaintiff was occupier of a cottage and garden, and the defendant was the adjoining owner. Tbe premises were separated by a wall, part of which had been pulled down by the defendant, who had erected, on the site thereof, a higher wall, with a cottage and buildings against it. In an action for trespass by tbe plaintiff, the jury, on the direction of Alexander, C.B., found for the defendant. On appeal, the Court {Bayley, Holroyd, and Littlcdalc, JJ.) held, tbat tbe common user of a wall separating two adjoining properties is prima facie evidence that the wall, and land on which it stands, belong to the adjoining owners in equal moieties ; and that, where such a wall is pulled down by one tenant with the intention of rebuilding, and a higher wall is built, this is not such a total destruction of the wall as to TRESPASS 353 entitle one of the two tenants in common to maintain trespass against the other. CUBITT V. PORTEB. (1828) 8 B. & C. 257 ; 2 M. & Ey. 267 ; 6 L. J. (o.s.) K. B. 306. Part of House projecting into Adjoining Premises. — The owner of two adjoining houses sold one to the defendants, who began to pull it down with a view to rebuild. It was then discovered that part of the house retained by the owner projected into, and was supported by, the defendants' house, and that the cellar projected in like manner under the basement of the defendants' house. One of the defendants' cellars also projected under the basement of the house retained by the owner. None of the projections were shown on the plans of the houses. The defendants proposed to rebuild over the plaintiffs projection, or, in other words, to trespass on the vertical column of air above the pro- jection, a right to which was claimed by the owner, and he sought an injunction to restrain the defendants from building as they proposed. James, V.C., held, that the vertical column of air over so much of the plaintiff's house as overhung the defendants' site, belonged to the defendants, and not to the plaintiff, and he dismissed the bill. CORBETT V. HILL. (1870) L. E. 9 Eq. 671 ; 32 L. J. Ch. 547 ; 22 L. T. 263. Party Wall. — The defendant purchased certain premises, pulled them down, and rebuilt them, and in doing so built upon and against a wall, which the adjoining owner claimed as his ex- clusively. In an action by the latter for trespass, Burrovgh, J., told the jury that if they were satisfied there was but one wall, and that a party wall, neither owner could maintain trespass against the other. The jury found that it was a party wall, and judgment was entered for the defendant. On hearing a rule obtained by the plaintiffs, the Court {Bayley, Holroyd, and Littlc- dale, JJ.) held, that trespass does not lie by one part-owner of a party wall against the other part-owner. WILTSHIRE V. SID FORD. (1827) 1 Man & Ey. 404. Power to Re-enter and Seize the Works. — A builder entered into a building agreement with the owner of certain land which provided inter alia that in case of default in not completing the buildings at certain periods the owner might re-enter and seize M.B.C, 2 A 354 TRESPASS the materials, &c. There was continued and successive defaults and several periods of indulgence were granted by the owner, but there was no waiver of the last default and no alteration of the builder's position to his prejudice, and no default on the owner's part. Wightman, J"., directed a nonsuit in an action brought by the builder for trespass. STEVENS w. TAYLOR. (1861) 2 F. & F. 419. UMPIRE Appointment of. — A dispute having arisen between building owners and an adjoining owner in relation to the erection of a party wall, the respective owners each appointed, in March, 1876 a surveyor under the Metropolitan Building Act, 1855. In April, 1876, the adjoining owner commenced an action for an injunction to restrain the building owners from executing the proposed works. In May, 1876, the injunction was refused by Malins, V.G., and his decision was affirmed by the Court of Appeal. In August, 1876, the building owners served due notice, under § 85 (7) of the MetrojJolitan Building Act, 1855, upon both of the surveyors, re- quiring them to appoint an umpire, but the surveyor acting for the adjoining owner refused to comply therewith. On an application for the appointment of an umpire by the Court on the default of the adjoining owner's surveyor, under § 12 of the Common Law Procedure, Act, 1854, the Court granted the application, notwithstanding the fact that an action to settle the rights of the parties in relation to a threatened obstruction of ancient lights was pending. LN RE THE METROPOLITAN BUILDING ACT, 1855 ; EX PARTE McBRIDE. (1876) 4 Ch. D. 200 ; 46 L. J. Ch. 153 ; 35 L. T. 543. VIBRATION Damage from. — The plaintiffs were lessee and reversioners, respectively, of certain licensed premises, and brought separate actions against the defendants, who had erected, on adjacent, but not contiguous, land, engine-house, sheds, shaft, &c., for the purposes of their business. Foundations for the work were sunk 30 feet below the surface, and engines, of 500 and 1000 horse-power, were erected within 30 yards of the plaintiffs' premises. Owing to the excavations, vibration, and noise, structural injury was caused to the plaintiffs' premises, and annoyance and discomfort VIBRATION 355 to the lessee; and they sought an injunction to restrain the defendants from working their engines so as to cause injury and discomfort, and claimed damages. It was proved that the working of the engines caused tlie rooms and furniture to vihrate, and tlie vihration even caused sickness, according to two witnesses. Steam was emitted for hours at a time, and descended on the plaintiffs' premises in moisture. A crack had appeared in one of the walls, which was attril)uted to the vihration. Tliere was no evidence of negligence on the part of the defendant, or loss to the lessee- plaintiffs business. Kchcwich, J., found a nuisance, and that the nuisance had caused the damage alleged, 1)ut refused an injunction, as damages were the proper remedy. The plaintiffs appealed, and the Court {Lord Halshury, L.C., Lindley and A. L. Smith, L.J J.), in a considered judgment, held, that there was nothing in either case to justify the Court refusing aid by injunction, and therefore, the appeal must be allowed. SHELFER & ANOTHER v. CITY OF LONDON ELECTRIC LIGHTING CO. (1895) 1 Ch. 287; 64 L. J. Ch. 216; 12 E. 112; 72 L. T. 34; 43 W. E. 238. VIEW Obstruction. — By breaking up a certain road and erecting a number of gasometers on the site thereof, a gas company obstructed the view formerly had from the road of the plaintiff's premises, whereby he was dei>rived of customers and otherwise injured. The plaintiff filed, and KindersUy, V.C., dismissed, a bill for an injunction. On appeal. Lord Chelmsford, L.C., a firmed the decree of the Vice-CJiancellor, and held, that the Court will not restrain the erection of a building because it injures the plaintiff by obstructing the view of his works. BUTT V. IMPERIAL GAS CO. (1866) L. E. 2 Ch. 158 ; 15 W. E. 92 ; 16 L. T. 820. Obstruction. — The plaintiffs and the defendant were owners in fee of two adjoining plots, which belonged originally to the same building estate laid out under a general building scheme. The conveyances contained respectively a covenant that nothiuff except 6-foot fences would be erected within 15 feet of the lii«di- road and 10 feet of any other road, and no house would be erected at a greater distance than 50 feet from the building line. The defendant built a shop on his land nearer than 15 feet from the high-road, obstructing the view of a chapel which had been erected 356 VIEW l)y tlie plaintiffs. The chapel, however, was itself slightly in advance of the stipulated building, and infringed another covenant also. In an action to restrain the defendant from building the shop, Kay, J., held, that the plaintiffs were not prevented in equity from enforcing the covenant as to the frontage line, which they themselves had substantially observed, and granted a mandatory injunction. CHITTY v. BRAY. (1883) 47 J. P. G95 ; 48 L. T. 8G0. VOLUNTEER BUILDINGS A builder contracted to erect a building to be used by a volunteer corps as an armoury, storehouse, and drill-hall, and vested in the commanding officer. It was objected that the floor of the l)asement— a long cellar running under the Iniilding— was beneath the level of the sewer. On the hearing of a summons under § 75 of the 3fetro2Jolis Management Act, 1855, the magistrate held, that, as the premises were to be used exclusively for military purposes, the provisions of the Act did not apply to them, and he dismissed the summons. The Court {Grantham and Lawrance, J J.) held, on a case stated, that the Iniilding was not exempted from the operation of the sanitary provisions of the Metropolis Management Act, 1855, on the ground that it is occupied and used solely for the purposes of the Crown. WESTMINSTER (ST. MARGARET AND ST. JOHN TEE EVANGELIST) VESTRY v. HOSKINS. (1899) 63 J. P. 725; 2 Q. B. 474; 68 L. J. Q. B. 840; 81 L. T. 390 ; 47 W. R. 649. WAIVER No Action taken after Time-limit for Completion had passed. By a building agreement a builder agreed to purchase certain land, and covenanted to erect a number of houses thereon, the owner making advances to the builder. If the purchase was not completed by a fixed date, the owner was at liberty to re-enter and take possession. The purchase was not completed by that date, but the owner continued to make advances. Afterwards the owner entered and took possession of the land and houses, plant and materials thereon. An issue before Denman, J., in which other creditors of the builder claimed the property, as the owner had waived his right to take possession, was decided in favour of the owner. On appeal, the Court {Lord Eshcr, M.R., Bowcn and WAIVER 357 Fry, L.JJ.) held, that the owner had waive(] liis rij^dit, and reversed the judgiuent of the Court l)elo\v. PL ATT V. rAllKElL (188G) 2 T. L. i;. 786. -Covenant to Build. — The Corporation of London agreed to grant a lease of certain premises to the defendant when the defendant should have rebuilt the house standing thereon to the satisfaction of the Corporation's arclutect. The defendant entered into possession, l)ut never commenced building operations, or paid rent, &c. The Corporation sought a decree for the specific performance of the agi-eement, and the defendant demurred for want of equity, on the ground that a contract to build to the satisfaction of a third party w\as not one of which specific performance would be enforced. The plaintiffs contended that if they waived the building of the house, they were entitled to specific performance of the rest of the agreement, and Mcdms, V.C., overruled the demurrer in view of the waiver by the plaintiffs. LONDON COBPOBATION X. BOUTIIGATE. (18G9) 38 L. J. Ch. 141 ; 20 L. T. 107 ; 17 W. E. 197. Extra Work constituting. — A builder agreed to erect six houses and to complete and deliver up possession of the same to the defendant, on or before a certain date, under a penalty of £6 for each week during which the works should remain incomplete. The contract provided that any penalty was to be deducted from any money due to the builder under the contract. In an action by the builder for work and labour, the defendant claimed to deduct £72 by reason of the houses not being completed at the date named. The plaintiff contended that the defendant ordered extra works to l)e done in a reasonal>le time, and that the contract and extra works were so mixed up that it was impossible to complete the contract until the extra works were complete, and that all the works were executed in a reasonable time. On demurrer, the Court ( Williams, Willes, Byles, and Keatiue/, J J.) held, that the defendant had w\aived his right to penalties. THORN HILL v. NEATS. (1860) 8 C. B. (x.s.) 831 ; 2 L. T. 539. . Forfeiture. — Certain lessees covenanted to build certain houses within a year, and in default, the lease sliould be void. The houses were not erected by the date agreed, but the lessor's surveyor permitted the lessees to continue, after that date, tlie erection of 358 WAIVER the houses. In au action hy tlie lessor to recover possession of the premises, Best, C.J., directed the jury to find for the plaintiff. On hearing a rule for a new trial, the Court refused tlte rule, on tlie grounds that there was in the circumstances no waiver of the forfeiture by the lessors. DOE DEM KENSINGTON v. BBINDLEY. (1827) 12 Moo. (C.P.) 37. WARRANTY A builder purchased from the defendant certain machinery for cutting or sawing marble to be constructed on the " pendulum " principle. The machines broke down in working, and the defendant rejected them. In an action by the vendor for the price, Grantham, J., gave judgment for the plaintiff. On appeal, the Court {Lord Eshcr, 31. B., LincUcy and Loj)CS, L.JJ.) held, that, even though the defendant might have ordered alterations in, or a particular combination of, the machinery, the plaintiff ought not to have carried them out, as he was responsible to deliver, to the best of his skill, a machine fit for the purpose for which he knew it was required ; and the defendant was entitled to reject one of the machines and have the price paid refunded to him : as to the other, on the evidence, he had accepted it, and, therefore, could not recover in respect of it. HALL V. BUBI<:E. (1886) 3 T. L. E. 1G5. WATER-CLOSETS Insufficient. — The respondents, acting upon the report of their inspector of nuisances, gave notice to the owner of a certain house, under § 36 of the Builic Health Act, 1875, that it was without a sufHcient water-closet, &c., and requiring the owner, within twenty- eight days, to provide a sufficient water-closet, &c. The owner did not comply with the notice, and refused to permit the surveyor of the respondents to enter upon the premises for the purpose of making plans for the works, which, upon the owner's default, the respondents had undertaken. The respondents applied to the justices for an order. At the hearing the justices rejected certain evidence, tendered on behalf of the owner, to prove that the existing sanitary accommodation was sufficient, and made an order, under § 305 of the BuUic Hadth Act, 1875, authorizing the respondents to enter, examine, and lay open the house. Tlie owner appealed. The Court {Laivrctncc and Channell, JJ.), on a case stated, held, WxVTER-CLOSETS 359 that the justices had no jiuisdiciiou to entertain an olijection hy the owner of the premises that such entry is unnecessary because sufficient sanitary ai)pliances are abeady provided. ROBINSON V. SUNDERLAND CORPORATION (1899) 63 J. P. 19, 341 ; 1 Q. 13. 751 ; 08 L. J. Q. B. 330 ; 80 L. T. 2G2. WOODEN BUILDING • Portable Butcher's Shop.— A hjcal Act provided that, for the purposes thereof, any Ijuihiing begun after the conmiencement of the operation of the Act shall be considered a new building. The owner of certain land put together and placed on his premises abutting on the street a wooden structure on wheels, 30 feet in length by 13 feet in depth, and of a certain height. It was fitted with rain-water pipes and gas, for use as a butcher's sliop, Ijut there were no sanitary conveniences provided. On summons the justices convicted the owner for erecting a new building without giving notice to the local authority pursuant to the by-laws. On a case stated, the Court {Lord Coleridge, C.J., and A. L. Smith, J.) held, that the justices were riglit in treating this structure as a new building and subject to the by-laws relating thereto. RICHARDSON v. BROWN (1885) 49 J. P. 661. WOODEN STRUCTURE OR ERECTION • Bungalow.— The respondents erected a movable and temporary wooden structure, with iron roof, known as a bungalow, on their premises, for show and sale purposes, without a licence in writing from the appellants. After standing a year it was sold, and re-erected elsewhere. The appellants summoned the respondents for having erected the bungalow without a licence in writing under 45 & 46 Vict. c. 14, § 13, and 51 & 52 Vict. c. 41, and the magistrate held, that it was a structure or erection of a movable or temporary character, but that it was so erected and placed for the purposes of sale, and he dismissed the summons. The Court ( Wills and Kennedy, JJ.) held, that the bungalow was not a " wooden structure or erection of a movable or temporary character," within the meaning of § 13 of the Metropolis Manage- ment and Building Aets Amendment Act, 1882, and did not, therefore, requu-e a licence in writing from the appellants. LONDON COUNTY COUNCIL v. HUMPHREYS, LTD, (1894) 58 J. P. 734; 2 Q. B. 755; 63 L. J. M. C. 215; 10 E. 533; 71 L. T. 201; 43 W. B. 13. 3 GO WOODEN STEUCTURE WOODEN STRUCTURE Office in Coal Yard. — A firm of coal merchants erected, for their own convenience and at their own expense, but on the premises of a railway company, a wooden structure 11 feet 9 inches long, 6 feet 9 inches wide, and 8 feet 9 inches high, for use by them as a coal office in connection with their wharf on the railway company's premises. The structure was removable at will by the company. It was contended that the structure was used " for the purposes of or in connection with the traffic of the railway company," within the meaning of § 86 of the London Building Act, 1894, and was, therefore, exempt from the operation of § 84. The magistrate found that it was not so used, and con- victed the firm of coal merchants. The firm appealed. The Court {Day and Laivrancc, JJ.) held, that the structure in question was " used in connection with the traffic of the railway company," witliin the meaning of § 86 of the London Building Act, 1894, and that its erection did not require the licence of the respondents under § 84. The appeal, therefore, was allowed. ELLIOTT V. LONDON COUNTY COUNCIL. (1899) 63 J. P. 645; 2 Q. B. 277; 81 L. T. 155; 68 L. J. Q. B. 837. Pay Office. — A firm of builders erected a portable pay-office on wheels, constructed of wood and roofed with zinc. It was 10 feet high, by 8 feet, by 6 feet, and was fitted with a desk, and a window, through which the employes were paid. The consent of the London County Council had not been obtained for its erection. The builders were summoned by the London County Council, and the magistrate dismissed the summons, on the ground that the pay office in question was not a structure of a movable or temporary character, within the meaning of the Act. The Court {Pollock, B., and Vauglian Williams, J.) held, that it was not a " wooden structure or erection of a movable or temporary character," within the meaning of § 13 of the Metropolis Manage- ment and Building Acts Amendment Act, 1882, and did not require a licence in writing from the London County Council for its erection. LONDON COUNTY COUNCIL v. BE ALICE. (1892) 56 J. P. 790 ; 2 Q. B. 109 ; 66 L. T. 685 ; 40 W. E. 543. — — Power to licence. — By the London Government Act, 1899, the powers and duties of the County Council as to inter alia licensing the erection of wooden structures under § 84 of the London WOODEN RTRUCTUUE 301 Building Act, 1894, were trausferrcd to the borougli councils. In Westminster Corporation v. London Count}/ Council (see p. 347, supra), the Court held, that certain wooden structures erected in the borough of Westminster were within § 84 of the London Building Act, 1894, and that Westminster Corporation was the proper authority to grant licences for such structures and to take proceedings for the erection of such structures with- out licence, but they declined to decide whether or not such structures were subject to the supervision or inspection of the district surveyors under the London Building Act, 1894. The functions of the district surveyors are in the main regulated by Part 13 of that Statute, and by the third schedule certain fees are payable to tliem in respect of supervision of wooden and temporary structures. On a special case stated under § 29 of the London Government Act, 1899, the Court {Lord Alverstonc, C.J., Darling and CJiannell, JJ.) held, that the transfer of the powers of the London County Council, as to licensing wooden structures, to Ijorough councils, does not operate as a transfer of the powers and duties of the district surveyors with respect to supervision or inspection of such structures. A district surveyor has no powers, &c., under a licence granted by a borough council unless he be named in the licence as the person to inspect, &c. Such wooden structures are works of which a district surveyor is entitled to notice under § 145 of the London Building Act, 1894, as to which he may have duties of supervision independently of the licence of the borough council. The right to receive fees for supervision, etc., specified in the London Building Act, 1894, has not been transferred to the borough councils, nor has it wholly lapsed ; it remains in the district surveyor. COUNCIL OF THE CITY OF WESTMINSTER v. WATSON. (1902) 2 K. B. 717 ; 71 L. J. K. B. 603 ; 87 L. T. 326 ; 51 W. Ft. 300. Stable. — A builder erected, against an open shed standing in the centre of a piece of ground of about an acre in extent, a wooden structure, 20 feet by 20 feet by about 12 feet in height, for use as a stable. To all intents and purposes it was on the enclosed private ground of the defendant. On hearing a summons against the builder, taken out by the local authority for breach of a by-law, requiring that every person intending to erect any " new building " should give fourteen days' notice to the local board of 362 WOODEN STRUCTURE such intention, and deposit plans, &c., the justices dismissed the summons. On a case stated, the Court ( Wills and Channell, JJ.) held, that a wooden structure of such dimensions, intended for a stable, was a " new building," within the meaning of the by-law, and they remitted the case for a conviction. SOUTH SHIELDS CORPORATION v. WILSON. (1902) 65 J. P. 294 ; 84 L. T. 267 ; 19 Cox C. C. 667. WORK AND LABOUR A firm of slaters contracted to execute certain work accordinc^ to a specification at certain prices. The work was not carried out according to the specification, and was in consequence less weather- proof. In an action for the Ijalance of an account for work, labour, and materials, the firm proved that their claim, when added to the amount already paid, would only amount to a fair price for the work done. Parlx, J., held, that when a tradesman finishes work differing from tlie specification agreed on, he is not entitled to the actual value of tlie work, l)ut only to the agreed price, less the cost of completing the work according to the speci- fication ; and the jury found for the defendant. THORNTON v. PL ACT]. (1832) 1 Moo. & R. 218. According to a Plan not approved. — A lessor agreed to pay his tenant at a valuation for certain l)uilding works to be carried out according to an approved plan, provided they were completed in two months. No plan was approved, but suljsequently the lessor encouraged the lessee to go on with the works. In an action l)y tlie lessee against the lessor, the Court held, tliat the lessee might recover as for work and labour done on an implied promise by the lessor. BURN V. MILLER. (1813) 4 Taunt. 745. Credit was given to the Defendant. — A builder sued the churchwarden of a proprietary chapel for work and labour, and the defence set up was that the churchwarden acted as agent of the incumbent. The jury found that the builder looked to the churchwarden for payment, as it was he who gave all the directions, and on a motion for a new trial, the Court {Lindley, Lopes, and A. L. Smith, L.J J.) dismissed the application. BUTLER V. PEMBER. (1892) Times, July 16. WORK AND LABOUR 363 Defective Work. — The plaintiff erected a stove for the do- feiidant, hut owing to some defect the stove coidd not he used. In an action for work and hiljour d(jue, Haylcy, J., entered a nonsuit, and held, that where a person is emphjyed on a work of skill, the eni})loyor l)uys hoth his lahour and judgment, and that he ought not to undertake the work if it cannot succeed, and that he ought to know whether it will succeed or not. It is otherwise if the employer uses his own judgment instead of that of the workman. DUNCAN V. BLUNDELL. (1820) 3 Stark (N. T.) G ; 5 M. & P. 548. -With Defendants Consent. — The plaintilf was desirous of taking a lease of the defendant's house and premises, and after a correspondence between the parties and interviews, it was agreed that the defendant should effect certain alterations to the house, towards the cost of which the plaintiff should contribute a sum of £75. The correspondence disclosed no agreement sufficient to satisfy the Statute of Frauds. With the consent of the defendant, the plaintiff performed a part of the work, but, owing to the default of the defendant in carrying out the alterations to be performed l)y him, the plaintiff was prevented from taking possession. In an action by the plaintiff to recover the value of the work done Ijy him with the consent of the defendant, a verdict was taken for the plaintiff, subject to the award of an arbitrator, who stated a case. The Court {Blachhirn and Lush, JJ.) held, that the plaintiff could recover, under the common counts, the value of the work done by him with the defendant's consent. rULBROOK \. LA WES. (1870) 1 Q. B. D. 284; 45 L. J. Q. B. 178; 34 L. T. 95. -Evidence. — A i)lund)er sued the defendant for work done and materials supplied, on the order of third parties, to certain houses owned by the defendant. After a part of the work had been done the plaintiff refused to do any more unless ordered ])y the de- fendant, whereupon the defendant gave his personal order for the work. The defendant contended that credit had been given to the third parties, and denied that he was the owner, or gave the orders. The judge of the County Court admitted evidence that other parties had received orders from the defendant to do work at the same houses, although it was not shown that the plaintiff knew of sucli orders when he did the work. On appeal, the Court 364 WORK AND LABOUR {Mellor, Lush, and Hioinm, LJJ.) liehl, thai tlic evidence was admissible. WOODWARD V. BUCHANAN. (1870) L. R 5 Q. B. 285 ; 39 L. J. Q. B. 71 ; 22 L. T. 123, Extra Work. — A plasterer was employed to execute the inside plastering of a certain house under a written contract. During tlie progress of the work an order was given for an external ornamental entablature. In an action for work and labour in respect of the latter external work, Lord Tentcrden, C.J., held, that it was not necessary to produce the written contract for the interior work. RE ID V. BATTE. (1829) Moo. & Malk. 413. Faulty Work. — A builder fitted up a kitchen range with an old boiler behind, but it was found that hot water could not be oljtained from the boiler, because there were no flues fixed to carry the heat to and about the boiler. In an action against the builder by the employer for fitting up the range in an improper manner, Erie, C.J., gave judgment for the plaintiff, and held, that a work- man was Ijound to do his work in a workmanlike manner, and that it is no excuse for his doing it so as to be useless, that he could not have done it otherwise, unless he told his employer so. PEARGE V. TUCKER. (1862) 3 F. & F. 136. Negligence. — A builder contracted with the defendant on a special contract to erect certain buildings. The builder sued the defendant for work and labour done and materials supplied, and the latter let judgment go by default. A writ of inquiry was exe- cuted Ijefore an under-sheriff, and it was proved that the Iniildings were not equal to those contracted for. The jury found for the plaintiff, and on hearing a rule to set the verdict aside, Lord Lyndhurst, C.B., held, that the defendant might give evidence that the work was improperly done, and not according to the contract, in which case the plaintiff would only be entitled to recover the real value of the work done and materials supplied. CHAPEL V. HICKES. (1833) 3 L. J. Ex. 38 ; 2 G. & M. 214 ; 4 Tyr. 43. -Negligence.— The defendant engaged to do certain Ijuilding work fur a third party, and had contracted in writing with the plaintiff to do some part of the work. During the progi-ess of WORK AND LABOUR 365 tlie works some adjoining Ituildings, wliicli the defendant should have shored up, fell. The plaintiff cleared the debris away, and the defendant promised to pay him for doing so. The plaintiff's claim was in respect of this service only, the contract work having been already paid for. At the trial the Secondary of the Sheriff of London directed the jury to find for the defendant, as the plaintiff failed to produce the written contract. On hearing a rule for a new trial, Williams, J., refused the rule, and held, that, although unconnected with the work sued on, the written contract, never- theless, ought to have been produced. HOLBAED V. STEVENS. (1841) 5 Jurist, 71. APPENDICES I.— FORM OF AGREEMENT AND SCHEDULE OF CONDITIONS FOR BUILDING CONTRACTS. IT— THE PROFESSIONAL PRACTICE APPROVED BY THE ROYAL INSTITUTE OF BRITISH ARCHI- TECTS AS TO THE CHARGES OF ARCHITECTS. III.— RYDE'S SCALE OF SURVEYORS' FEES. stamp to be affixed here. APPENDIX I FORM OF AGREEMENT AND SCHEDULE OF CONDITIONS FOR BUILDING CONTRACTS Articles of Agreement made the day of 190 Between of in the County of (hereinafter called " the Employer") of the one part and of and of in the County of Builder '■ (hereinafter called "the Contractor") of the other part Whereas the Employer is desirous of t at and has caused Drawings and a Specification describing the work to be done to be prepared by of , his Architect : And Whereas the said Drawings numbered 1 to inclusive and the Specification and the Bills of Quantities have been signed by or on behalf of the parties hereto : And Whereas the Contractor has agreed to execute upon and subject to the Conditions set forth in the Schedule hereto (hereinafter referred to as " the said Conditions ") the works shown upon the said Drawings and described in the said Specification and included in the said Bills of Quantities for the sum of Now IT IS HEREBY AGREED AS FOLLOWS : 1. In consideration of the sum of to be paid at the times and in the manner set forth in the said Conditions, the Contractor will upon and subject to the said Conditions execute and complete the works shown upon the said Drawings and described in the said Specification and Bills of Quantities. 2. The Employer will pay the Contractor the said sum of or such other sum as shall become payable hereunder at the times and in the manner specified in the said Conditions. 3. The term "the Architect "in the said Conditions shall mean the said or, in the event of his death or ceasing to be the Architect for the purpose of this Contract, such other person as shall be nominated for that purpose by the Employer, not being a person to whom the Contractor shall object for reasons considered to * Insert '* s and co-partners " if such is the fact, t State nature of intended works. 3I.B.C. 2 B 370 APPENDIX I be sufBcicnt by the Arbitrator mentioned in the said Conditions. Provided always that no person subsequently appointed to be Architect under this Contract shall be entitled to disregard or over- rule any decision or approval or direction given or expressed by the Architect for the time being. 4. The said Conditions shall be read and construed as forming part of this Agreement, and the parties hereto will respectively abide by and submit themselves to the conditions and stipulations and perform the agreements on their parts respectively in such Conditions contained. As witness our hands this day of 190 Signed hy the said in the presence of Signed hy the said in the presence of Schedule of Conditions of Conthact. Drawin"-s 1- The works shall be carried out in accordance with the and Specifi- directions and to the reasonable satisfaction of the Architect, in accordance with the signed Drawings and Specification and Bills of Quantities, and in accordance with such further drawings, details, instructions, directions, and explanations as may from time to time be given by the Architect. If the work shown on any such further drawings or details, or necessary to comply with any such instructions, directions, or explanations, be, in the opinion of the Contractor, extra to that comprised in the Contract, he shall, before proceeding with such work, give notice in writing to this effect to the Architect. In the event of the Architect and Contractor failing to agree as to whether or not there is any extra, and of the Architect deciding that the Contractor is to carry out the said work, the Contractor shall accordingly do so, and the question whether or not there is any extra, and if so the amount thereof, shall, failing agreement, be settled by the Arbitrator as provided ia Clause 32, and the Contractor shall be paid accordingly. The Contract Drawings and Specification and the priced Bills of Quantities shall remain in the custody of the Architect, and shall be produced by him at his Office as and when required by the Employer or by the Contractor. Copies of 2. One complete copy of all Drawings and of the Specification DrawinfTs ^ jj j^ furnished by the Architect free of cost to tlie Contractor for and bpccifi- ■' . cation. his own use. The Architect shall furnish to the Contractor, within days after the receipt by him of a request for the same, any details which in the opinion of the Architect are necessary for the execution of any part of the work, such request to be made only within a reasonable time before it is necessary to execute such work in order to fulfil the Contract. Such copies and details shall be kept on the works until the completion thereof, and the Architect or his representative shall at all reasonable times have access to the same, APPENDIX 1 1 371 aad they shall be returned to the Architect Ijy the Contractor on the completion of the Contract. 3. The Contractor shall on the signing hereof furnish the Copv of Architect with the fully priced J Jills of Quantities for his use or that Ksti'mato. of the Surveyor appointed as in Clause 13 hereof, and for the purposes only of this Contract. 4. The Contractor shall provide everything necessary for the Contractor proper execution of the works, according to the true intent and ^■^ F'rf^i.'ie meaning of the Drawings and Specification taken together, whether necessary? the same may or may not be particularly shown on the Drawings or described in the Specification, provided that the same is reasonably to be inferred therefrom; and if the Contractor find any discrepancy in the Drawings, or between the Drawings and Specification, he shall immediately refer the same to the Architect, who shall decide which shall be followed. Figured dimensions are to be followed in preference to the scale. 5. The Contractor shall conform to the provisions of any Acts of Lo^al and Parliament relating to the works, and to the regulations and by-laws "ther of any Local Authority, and of any Water and Lighting Companies tics :'°" with whose systems the structure is proposed to be connected, and shall, Notices, before making any variation from the Drawings or Specification that may bo necessitated by so comforming, give to the ArcLitect written notice, specifying the variation proposed to be made, and the reason for making it, and apply for instructions thereon. In case the Contractor shall not in due course receive such instructions he shall proceed with the work, conforming to the provision, regulation, or by-law in question, and any variation so necessited shall be dealt with under Clause 13. The Contractor shall give all notices required by the said Acts, regulations, or by-laws to be given to any Local Authority, and pay all fees payable to any such Authority, or to any public officer in respect of the works. 6. The Contractor shall set out the works, and during the progress Settiiui- out of the building shall amend at his own cost any errors arising from "^ ^^°'''^' inaccurate setting out, unless the Architect shall decide to the contrary. 7. All materials and workmanship shall be of the respective kinds Materials described in the Specification, and the Contractor shall unon the '^*^";.*'' -t (..ii. ., conform to request ot the Architect rurnish him with vouchers to prove that the Spcciiica- matcrials are such as are specified. *^"'°' 8. The Contractor shall keep constantly on the works a competent Foreman, general foreman, and any directions or explanations given by the Architect to such foreman shall be held to have been gi\en to the Contractor. 9. The Contractor shall, on the request of the Architect, imme- pismi 1 diately dismiss from the works any person employed thereon by him « '' work- who may, in the opinion of the Architect, be incompetent or mis- Architect, conduct himself, and such person shall not bo again employed on the works without the permission of the Architect. 10. The Architect and any person authorized by him shall at all -A-ccess for 372 AITENDIX I Architect reasonable times have access to the works, and the Architect and his to Works, representatives shall at like times have access to the workshops of the Contractor or other places, where work is being prepared for the building. Clerk of 11. The Clerk of Works shall be considered to act solely as "\\ orks.i inspector and under the Architect, and the Contractor shall afford him every facility for examining the works and materials. Variations 12. The Contractor shall, when authorized by the Architect, or as ami extras, provided by Clause 5, vary by way of extra or omission from the Dz'awings or Specification ; such authorization is to be sufficiently proved by any writing or drawing signed by the Architect or by any subsequent written approval by him, but the Contractor shall make no variation without such authorization. No claim for an extra shall be allowed unless it shall have been executed under the provisions of Clause 5, or by the authority of the Architect as herein mentioned. Any such extra is hereinafter referred to as an authorized extra. Krrors in l^^,. Should any error appear in the Bills of Quantities other Bills of than in the Contractor's prices and calculations, it shall be rectified, and such rectification shall constitute a variation of the Contract, and shall be dealt with as hereinafter provided. Trice for ^^' -^ ^ variation shall vitiate the contract ; but all authorized extras ; extras for which a price may not have been previously agreed, and any tained. omission which may have been made with the knowledge of the Architect, or without his knowledge, provided he subsequently give a written sanction to such omission, shall be measured and valued, as hereinafter provided, by"' ; and a copy of the bill or statement of such measurement and valuation shall be given to the Contractor. The fees for so measuring axid valuing the variation shall be added to the contract sum. If in the opinion of the Architect the work cannot be properly measured and valued, day work prices shall be allowed therefor, provided that vouchers specifying the time and materials employed shall have been delivered for verification to the Architect, or his nominee, at or before the expiration of the week following that in which such work shall have been done. The variations shall be valued at the rates contained in the priced Bills of Quantities, or, where the same may not apply, at rates proportionate to the prices therein contained. The amount to be allowed on either side in respect of the variations so ascertained shall be added to or deducted from the contract sum as the case may be. ,.... ^£ 1 14. The fees for the Bills of ^Quantities and the Surveyor's Quantities ; expenses (if any J stated therein shall be paid by the Contractor to expenses ^^^ Surveyor named therein out of and immediately after receiving the amount of the certificate or certificates in which they shall be included. The fees chargeable under Clause 13 shall be paid by the Contractor before the issue by the Architect of the certificate for the final payment. If the Contractor fails or neglects to pay as herein provided, then the Employer shall be at liberty, and is hereby * Insert "the Architect," or the name of a Surveyor. t In cases where the Surveyor is engaged by the Employer to be paid direct by liim the tirst sculeuce of this clause will come out. APPENDIX I 373 authorizod, to do so on tho certificate of thn Architect, and the amount so paid by the Employer shall be deducted from the amount otherwise due to the Contractor. 15. When the Contractor shall have received payment of any T'nfixo.l certificate in which the Architect shall have stated that he has taken ,^.j,pn t^j^g^ into account the value of any unfixed materials intended for the works, '"^o ac- •' -1 T 1 count to be and placed by the Contractor thereon, or upon c^ound adjacent thereto, property of all such materials shall become the property of the Employer, and ^^'"I"'>3"'^''' shall not be taken away, except for the purpose of beinc,' used on the buildincf, without the written authority of the Architect ; and the Contractor shall be liable for any loss of or damage to such materials. 16. The Architect shall, durinc,' the procuress of the works, have ^''^<:' *<> ' . . , 1 i? 1 Architect power to order in writint^ from time to time the removal from the to onler re- works, within such reasonable time or times as may be specified in the |^'lJr''oper order, of any materials which in the opinion of the Architect are not work. in accordance with the Specification or the instructions of the Architect, the substitution of proper materials, and the removal and proper re-execution of any work executed with materials or workman- ship not in accordance with the Drawings and Specification or instructions ; and the Contractor shall forthwith carry out such order at his own cost. In case of default on the part of the Contractor to carry out such order, the Employer shall have power to employ and pay other persons to carry out the same ; and all expenses consequent thereon or incidental thereto shall be borne by the Contractor, and shall be recoverable from him by the Employer, or may be deducted by the Employer from any moneys due or that may become due to the Contractor. 17. Any defects, shrinkage, or other faults which may appear Defects •' ' • .... after com- within months from the completion of the works, arising in pietion. the opinion of the Architect from materials or workmanship not in accordance with the Drawings and Specification or the instructions of the Architect, or any damage to pointing by frost appearing within the like period, shall upon the directions in writing of the Architect, and within such reasonable time as shall be specified therein, be amended and made good by the Contractor at his own cost, unless the Architect shall decide that he ought to be paid for the same ; and in case of default the Employer may employ and pay other persons to amend and make good such defects, shrinkage, or other faults or damage, and all expenses consequent thereon or incidental thereto shall be borne by the Contractor and shall be recoverable from him by the Employer, or may be deducted by the Employer from any moneys due or that may become due to the Contractor. Should any defective work have been done or material supplied by any sub-contractor employed on the works who has been nominated or approved by the Architect, as provided in Clause 20, the Contractor shall be liable to make good in the same manner as if such work or material had been done or supplied by the Contractor and been subject to the provisions of this and the preceding clause. 18. The Contractor shall, at the request of the Architect, within ^°'^ *" ^^ 374 ArrEXDix i opened up surh time as the Architect shall name, open for inspection any work of Archi'- coverccl up ; and should the Contractor refuse or neglect to comply tect. with such request, the Architect may employ other workmen to open up the same. If the said work has been covered up in contravention of the Architect's instructions, or if on being opened up it be found not in accordance with the Drawings and 8pecification or the instruc- tions of the Architect, the expenses of opening and covering it up again, whether done by the Contractor or such other workmen, shall be borne by, and recoverable from, the Contractor, or may be deducted as aforesaid. If the work has not been covered up in contravention of such instructions, and be found in accordance with the said Draw- ings and Specification or instructions, then the expenses aforesaid shall be borne by the Employer and be added to the contract sum : provided always that in the case of foundations, or of any other urgent work so opened up and requiring immediate attention, the Architect shall, within a reasonable time after receipt of notice from the Contractor that the work has been so opened, make or cause the inspection thereof to be made, and at the expiration of such time, if such inspection shall not have been made, the Contractor may cover up the same, and shall not be required to open it up again for inspection except at the expense of the Employer. Assign- 19. The Contractor shall not, without the written consent of the sub-let tin"- ^I'chitect, assign this Agreement or sublet any portion of the works. Sub-con- 20. All specialists, merchants, ti-adesmen, or others executing any work, or supplying any goods for which prime cost prices or provisional suras are included in the Specification, who may at any time be nominated, selected or approved by the Architect are hereby declared to be sub-contractors employed by the Contractor ; but no such sub- contractor shall be employed upon the works against whom the Contractor shall make what the Architect considers reasonable objection, or who will not enter into a contract with the Contractor upon terms and conditions consistent with those in this contract, and securing the due performance and maintenance of the work supplied or executed by such sub-contractor, and indemnifying the Contractor against any claims arising cut of the misuse by the sub- contractor or his workmen of any scaffold erected or plant employed by the Con- tractor, or that may be made against the Contractor in consequence of any act, omission, or default of the sub-contractor, his servants or agents, and against any liability under the Workmen's Compensation Act 1897, or any amendment thereof. Damage to 21. The Contractor shall be responsible for all structural and property" decorative damage to property, and for injury caused by the works or workmen to persons, animals, or things, and shall hold the Employer harmless in respect thereof, and also in respect of any claim made under the Workmen's Compensation Act 1897, or any amendment thereof, by any person in the employ of the Contractor. He shall also be responsible for all injuries caused to the buildings, the subject of this Contract, by frost or other inclemency of weather, and shall APPENDIX T 375 reinstate all damage caused by the samo, and thoroughly complete the whole of the works. 22. '(rt) The Contractor shall insure the works, and keep them Insurance, insured until they are delivered up, against loss or damage l>y tire, in an office to be approved by the Architect, in the joint names of the Employer and Cuntractor, for the full value of the works executed, and shall deposit with the Architect the policies and receipts for the premiums paid for such insurance ; and in default the Employer may insure the works and deduct the premium paid from any moneys due or which may become due. All moneys received under any such policies are to be paid to the Contractor by instalments on the certificates of the Architect, and to be applied in or towards the rebuilding or reparation of the works destroyed or injured. The Contractor shall, as soon as the claim under the policy is settled, proceed with all due diligence with the rebuilding or reparation, and shall not be entitled to any payment in respect thereof other than the said moneys received, but such extension of the time hereinafter mentioned for completion shall be made as shall be just and reason- able. (6) The whole building and the works executed under this Contract sliall be at the sole risk of the Employer as regards any loss or damage by fire, and in the event of any such loss or damage being so occasioned which affects the ox'iginal building or structure in addition to the new work, the Contractor shall be entitled to receive from the Employer the full value of all work then executed and materials then delivered, calculated in the manner provided for by Clause 13 hereof, and this Contract, so far as it relates to any subsequent work, may at the option of either party be determined if in the opinion of the Arbitrator such determination shall be just and equitable. 23. Possession of the site (or premises) shall be given to the Date of Contractor on or before the day of . Ho completion, shall begin the works immediately after such possession, shall regularly .proceed with them, and shall complete the same (except painting and papering or other decorative work which in the opinion of the Architect it may be desirable to delay) by the day of , subject nevertheless to the provisions for extension of time hereinafter contained. 24. If the Contractor fail to complete the works by the date Damap:e3 named in Clause 23, or within any extended time allowed by the conipletiou Architect under these presents, and the Architect shall certify in writing that the works could reasonably have been completed by the said date, or within the said extended time, the Contractor shall pay or allow to the Employer the sum of sterling per f ii-s liquidated and ascertained damages for every! beyond the said date or extended time, * In this clause division (a) applies to a new building and division (b) to an existing building to bo altered, (a) or (6) should be struck out to sm't circumstances. t Insert •' day " or " week " as may be agreed. 37G APPENDIX I as the case may he, during which the works shall remain unfinished, except as provided by Clause 23, and such damages may be deducted by the Employer from any moneys due to the Contractor, o'nime'"" ^^" ^^ ^^ ^^^ opinion of the Architect the works be delayed by force majeure or by reason of any exceptionally inclement weather, or Ijy reason of instructions from the Architect in consequence of pro- ceedings taken or threatened by or disputes with adjoining or neigh- bouring owners, or by the works or delay of other Contractors or tradesmen engaged or nominated by the Employer or the Architect, and not referred to in the Specification, or by reason of authorized extras or additions, or in consequence of any notice reasonably given by the Contractor in pursuance of Clause 1 , or by reason of any local combination of workmen or strike or lock-out affecting any of the Building trades, or in consequence of the Contractor not having received in due time necessary instructions from the Architect for which he shall have specifically applied in writing, the Architect shall make a fair and reasonable extension of time for completion in respect thereof. In case of such strike or lock-out the Contractor shall, as soon as may be, give to the Architect written notice thereof. But the Contractor shall nevertheless use his best endeavours to prevent delay, and shall do all that may reasonably be required to the satisfaction of the Architect to proceed with the works. Suspendon 26. If the Contractor, except on account of any legal restraint by Con- upon the Employer preventing the continuance of the works, or on tractor. account of any of the causes mentioned in Clause 25, or in case of a certificate being withheld or not paid when due, shall suspend the works, or in the opinion of the Architect shall neglect or fail to proceed with due diligence in the performance of his part of the Contract, or if he shall more than once make default in the respects mentioned in Clause 16, the Employer by the Architect shall have power to give notice in writing to the Contractor requiring that the works be pro- ceeded with in a reasonable manner and with reasonable despatch. Such notice shall not be unreasonably or vexatiously given, and must signify that it purports to be a notice under the provisions of this clause, and must specify the act or default on the part of the Contractor upon which it is based. After such notice shall have been given, the Contractor shall not be at liberty to remove from the site or works, or from any ground contiguous thereto, any plant or materials belonging to him which shall have been placed thereon for the purposes of the works ; and the Employer shall have a lien upon all such plant and materials, to subsist from the date of such notice being given until the notice shall have been complied with. Provided always that such lien shall not under any circumstances subsist after the expiration of thirty-one days from the date of such notice being given unless the Employer shall have entered upon and taken possession of the works and site as hereinafter provided. If the Contractor shall fail for days after such notice has been given to proceed with the works as therein prescribed, the Employer may enter upon and take possession of the works and site, and of all such plant and APPENDIX 1 ^77 materials thereon (or on any ground contiguous thereto) intended to be used for the works, and all such matorials as above mentioned shall thereupon become the property of the Employer absolutely, and the Employer shall retain and hold a lien upon all such plant until the works shall have been completed under the powers hereinafter conferred upon him. If the Employer shall exercise the above power he may engage any other person to complete the works, and exclude the Con- tractor, his agents and servants, from entry upon or access to the same, except that the Contractor or any one person nominated by him may have access at all reasonable times to inspect, survey, and measure the works. And the employer shall take such steps as in the opinion of the Architect may be reasonal )ly necessary for completing the works without undue delay or expense, using for that purpose the plant and materials above mentioned in so far as they are suitable and adapted to such use. Upon the completion of the works the Architect shall certify the amount of the expenses properly incurred consequent on and incidental to the default of the Contractor as aforesaid, and in completing the works by other persons. Should the amount so certified as the expenses properly incurred be less than the amount which would have been due to the Contractor upon the completion of the works by him, the difference shall be paid to the Contractor by the Employer ; should the amount of the former exceed the latter, the difference shall be paid by the Contractor to the Employer. The Employer shall not be liable to make any further payment or com- pensation to the Contractor for or on account of the proper use of the plant for the completion of the works under the provisions hereinbefore contained other than such payment as is included in the contract price. After the works shall have been so completed by persons other than the Contractor under the provisions hereinbefore contained, the Employer shall give notice to the Contractor of such completion and may require him from time to time, before and after such completion, to remove his plant and all such materials as aforesaid as may not have been used in the completion of the works from the site. If such plant and materials are not removed within a reasonable time after notice shall have been given, the Employer may remove and sell the same, holding the proceeds, less the cost of the removal and sale, to the credit of the Contractor. Any notice to be given to the Contractor under this clause shall be given by leaving the same at the place of business of the Contractor, or by registered letter sent to him at that address. 27. The words "Prime Cost" or the initials P.C. applied in the "Prime Specification and Bills of Quantities to goods to bo obtained and fixed niea'ningi by the Contractor, shall mean, unless otherwise stated in the Specifi- cation or Bills of Quantities, the sum paid to the merchant after deducting all trade discount for such goods in the ordinary course of delivery, but not deducting discount for cash, and such sum shall be exclusive of special carriage, the cost of fixing, and Contractor's profit. 28. The provisional sums mentioned in the Specification and Bills fj°7.^'°' of Quantities for materials to be supplied or for work to be performed 378 APPENDIX I by special artists or tradesmen, or for other works or fittings to the liuilding, shall be paid and expended at such times and in such amounts and to and in favour of such persons as the Architect shall direct, and sums so expended shall bo payable by the Contractor without discount or deduction, or (without prejudice to any rights of the Contractor existing under the Contract referred to in Clause 20) by the Employer to the said artists or tradesmen. The value of works which are executed by the Contractor in respect of provisional sums, or in additional works, shall be ascertained as provided by Clause 13. At the settlement of the accounts the amount paid by the Contractor to the said artists or tradesmen, and the said value of such works executed by the Contractor, shall be set against all such provisional sums or any sum provided for additional works, and the balance, after allowing 'pro rata for the Contractor's profits at the rates contained in the Contractor's original estimate, shall be added to or deducted from the contract sum, provided that in estimating the amounts paid as last herein provided no deductions shall be made by or on behalf of the Employer in respect of any damages paid by the sub-contractor to the Contractor, the intention being that the Con- tractor and not the Employer shall have the benefit of any such damages. Artists, 29. The Contractor shall permit the execution of work by any gaged by Other artists or tradesmen who may be engaged by the Employer. Jiiiiploytr. 30_ The Contractor shall be entitled under the certificates to be Piiyrncnt issued by the Architect to the Contractor, and within days of cate. the date of each certificate, to payment by the Employer from time to time by instalments, when in the opinion of the Architect work to the value of (or less at the reasonable discretion of the Architect) has been executed in accordance with the Contract, at the rate of per cent, of the value of work so executed in the building, until the balance retained in hand amounts to the sum of after which time the instalments shall be up to the full value of the work subsequently executed. The Contractor shall be entitled, under the Certificate to be issued by the Architect, to receive payment of being a part of the said sum of when the works are practically completed, and in like manner to payment of the balance within a further period of months, or as soon after the expiration of such period of months as the works shall have been finally completed, and all defects made good according to the true intent and meaning hereof, whichever shall last happen. The Architect shall issue his certificates in accordance with this clause. No certificate of the Architect shall be considered conclusive evidence as to the sufiiciency of any work or materials to which it relates, nor shall it relieve the Contractor from his liability to make good all defects as provided by this Agreement. The Contractor when applying for a certificate shall, if required, as far as practicable, furnish to the Architect an approximate statement of the work executed, based on the original estimate. Non-pay- ^\ Should the Employer not pay the Contractor any sum certified APPENDIX I 379 by the Architect within the times respectively named in Clause 30, ^^^^^7^^ the Contractor shall give written notice to the Employer of the non- payment, and should the Employer not pay any such sum within the period of days from the date of delivery of such notice at the Employer's address or sent to him there in the ordinary course of post by registered letter, or if the Employer shall become bankrupt or file any petition for liquidation of his affairs, and if his Trustee in Bankruptcy shall repudiate this Contract, or if the Trustee shall be unable to show within days to the reasonable satisfaction of the Contractor his ability to carry out the Contract, and to make all payments due or to become due thereunder, or if the works be stopped for months under an order of the Architect or any Court of Law, the Contractor shall be at liberty to determine the Contract by notice in writing to the Architect, and to recover from the Einployer payment for all work executed and for any loss he may sustain upon any plant or material supplied or purchased or prepared for the purpose of the Contract. In arriving at the amount of such payment the rates contained in the Contractor's original estimate shall be followed, or, where the same may not apply, rates proportionate to the prices therein contained. 32. Provided always that in case any dispute or difference shall Arbitra- arise between the Employer or the Architect on his behalf and the '°°- Contractor, either during the progress of the works or after the deter- mination, aljandomiient, or breach of the Contract, as to the construc- tion of the Contract or as to any matter or thing arising thereunder (except as to the matters left to the sole discretion of the Architect under Clauses 4, 9, 16, and 19, and the exercise by him under Clause 18 of the right to have any work opened up), or as to the withholding by the Architect of any certificate to which the Contractor may claim to be entitled, then either party shall forthwith give to the other notice of such dispute or difference, and such dispute or difference shall be and is hereby referred to the arbitration and final decision of or, in the event of his death or unwillingness or inability to act, of , or, in the event of his death or unwillingness or inability to act, of a person to be appointed on the request of either party by the President for the time being of The Royal Institute of British Architects, and the award of such Arbitrator shall be final and binding on the parties. Such reference, except on the question of certificate, shall not be opened until after the com- pletion or alleged completion of the works, unless with the written consent of the Employer or Architect and the Contractor, The Arbitrator shall have power to open up, review, and revise any certifi- cate, opinion, decision, requisition, or notice, save in regard to the said matters expressly excepted above, and to determine all matters in dispute which shall be submitted to him, and of which notice shall have been given as aforesaid, in the same manner as if no such certificate, opinion, decision, requisition, or notice had been given. Upon every or any such reference the costs of and incidental to the reference and award respectively shall be in the discretion of the Arbitrator, who 380 APPENDIX T may determine the amount thereof, or direct the same to be taxed as between solicitor and client or as between party and party, and shall direct by whom and to whom and in what manner the same shall be borne and paid. This submission shall be deemed to be a submission to arbitration within the meaning of the Arbitration Act 1889. APPENDIX II THE PROFESSIONAL PRACTICE APPROVED BY THE ROYAL INSTITUTE OF BRITISH ARCHITECTS AS TO THE CHARGES OF ARCHITECTS Schedule sanctioned by the Royal Institute op British Architects, confirmed at a General Conference op Archi- tects OP THE United Kingdom, 1872, and revised by the Royal Institute, 1898. 1. The usual remuneratioix for an architect's services, except as Services hereinafter mentioned, is a commission of 5 per cent, on the total cost covered by 1 1 • 1- • ci 1 • commis- of works executed under his directions. Such total cost is to be valued sion, which as though executed by a builder with new materials. The commission s^pgr*^^!^ is for the necessary preliminary conferences and sketches, approximate estimate when required (such, for instance, as may be obtained by cubing out the contents), the necessary general and detailed drawings and specifications, one set of tracings, duplicate specification, general superintendence of works, and examining and passing the accounts, exclusive of measuring and making out extras and omissions. 2. This commission does not include the payment for services Charges for rendered in connection with negotiations relating to the site or ^"{u^g^^^n* premises, or in supplying drawings to ground or other landlords, or in the 5 per surveying the site or premises and taking levels, making surveys and ""ggiou?' plans of buildings to be altered, making arrangements in respect of party walls and rights of light, or for drawings for and correspondence with local and other authorities, or for services consequent on the failure of builders to carry out the works, or for services in connection with litigation or arbitration, or in the measurement and valuation of extras and omissions. For such services additional charges propor- tionate to the trouble involved and time spent are made. The clerk of the works should be appointed by the architect, his salary being paid by the client. 3. In all works of less cost than £1000, and in works requiring circum- desisns for furniture and fittings of buildings, or for their decoration stances • 1 -11 \ ^■^ justifying with painting, mosaics, sculpture, stained glass, or other like works, a higher and in cases of alterations and additions to buildings, 5 per cent, is '^,1.''jggfta„e not remunerative, and the architect's charge is regulated by special circumstances and conditions. 4. When several distinct buildings, being i-epetitions of one design, Repetition 382 Ai'PENDlX II in some aro erected at the same time from a single specification and one set of cases jiisti- ^irawings and under one contract, the usual commission is charged on rate. the cost of One such building, and a modified arrangement made in respect of the others; but this arrangement does not apply to the reduplication of parts in one building undertaking, in which case the full commission is charged on the total cost. 5. If the architect should have drawn out the approved design. Charge for . i •/. i^- A i. • plans and with plans, elevations, sections, and specification, the charge is tums^ool 2i per cent, upon the estimated cost. If he should have procured half the tenders in accordance with the instruction of his employer, the charge commis- .^ ^ p^^ ^^^^^ ^ addition. Two and a half per cent, is charged upon adding half ^jiy works originally included in the contract or tender, but sub- irtcn^ers sequently omitted in execution. These charges are exclusive of the ^^^^\'. charge for taking out quantities. Preliminary sketches and inter- also for views, where the drawings are not further proceeded with, are charged wS"'"'^'^ for according to the trouble involved and time expended. Charr'cfor 6. Should the client, having approved the design and after the niatcri.al contract drawings have been prepared, require material alterations to oSign, he made, whether before or after the contract has been entered into, by time. ^n extra charge is made in proportion to the time occupied in such alterations. Arcliltoct '^' ^^^ architect is entitled during the progress of the works to entitled to payment by instalments on account at the rate of 5 per cent, on the Eccouut. amount of the certificates when granted, or alternatively en chc signing of the contract, to half the commission on the amount thereof, and the remainder by instalments during their progress. The usual 8. The charge per day depends upon an architect's professional charge per pogitif)n, the minimum charge being three guineas. Estates ^' "^^^ charge for taking a plan of an estate, laying it out, and arranging for building upon it, is regulated by the time, skill, and trouble involved. 10. For setting out on an estate the position of the proposed road or roads, taking levels, and preparing drawings for roads and sewers, applying for the sanction of local authorities, and supplying all necessary tracings for this purpose, the charge is 2 per cent, on the estimated cost. For subsequently preparing working drawings and specifications of roads and sewers, obtaining tenders, supplying one copy of drawings and specification to the contractor, superintending works, examining and passing accounts (exclusive of measuring and valuing extras and onnssions), the charge is 4 per cent, on the cost of the works executed, in addition to the 2 per cent, previously mentioned. 11. For letting the several plots in ordinary cases the charge is a sum not exceeding a whole year's ground rent, but in respect of plots of great value a special arrangement must be made. 12. For approving plans submitted by the lessee, and for inspecting the buildings during their progress, so far as may be necessary to ensure the conditions being fulfilled, and certifying for lease, the charge is a percentage not exceeding 1^ per cent, up to £5000, and above that by special arrangement. APPENDIX n 383 13. For valuing freehold, copyhold, or leasehold property the Valuations. charge is : — On <£1,000 1 per cent. Thence to £10,000 ^ Above £10,000 ... ... | „ on residue. In valuations for mortgage, if an advance is not made, one-third of the above scale. The minimum fee is three guineas. 14. For valuing and negotiating the settlement of claims under the Lands Clauses Consolidation Act or other Acts for the compulsory acquisition of property, the charge is on Hyde's Scale, as follows : — On Amount of Settlement, whether by Verdict, A icard, or olhericise. Amount Gob. Amount. 6ns. Amount. Gns. Amount. Gns. £ £ £• £ 100 5 2,400 25 5,600 41 8,800 57 200 7 2,600 26 5.800 42 9,000 58 300 9 2,800 27 6,000 43 9,200 59 400 11 3,000 28 0,200 44 9,400 60 500 13 3,200 20 6.400 45 9,000 61 600 14 3,400 30 6,600 46 9,800 62 700 15 3,600 31 6,800 47 10,000 63 800 16 3,800 32 7.000 48 11,000 68 900 17 4,000 33 7,200 49 12,000 73 1,000 18 4,200 34 7.400 £0 14,(i00 83 1,200 lit 4,400 35 7,000 51 16,000 93 1,400 20 4,600 36 7.8(10 52 18,000 103 i,(;()0 21 4,800 37 8,000 53 20,000 113 1.800 22 5,000 38 8,2(10 54 2,0C0 23 r),2oo 39 8,400 55 2,200 24 5,400 40 8,600 56 Beyond this Half-a-Guinea per cent. The above scale is exclusive of attendances on juries or umpires, or at arbitrations, and also of expenses and preparation of plans. 15. For estimating dilapidations and furnishing or checking a schedule of same, the charge is 5 per cent, on the estimate, but in no case less than two guineas. For services in connection with settle- ment of claim by arbitration or otherwise, extra charges are made, under Clause 8. 16. For inspecting, reporting, and advising on the sanitary condition of premises, the charge must depend on the nature and extent of the services rendered. 17. In all cases travelling and other out-of-pocket expenses arc paid by the client in addition to the fees. If the work is at such a distance as to lead to an exceptional expenditure of time in ti*avelling, an additional charge may be made under Clause 8. 18. When an architect takes out and supplies to builders quantities Quantities on which to form estimates for executing his designs, he should do so with the concurrence of his client, and it is desirable that the architect should be paid by him rather than by the builder, the cost of such quantities not being included in the commission of 5 per cent. The Eoyal IxsTrruTE of Bkitisii Aucihtects, No. 9, Conduit Stkeet, IIanovek S(iUARE, London, W. Dilapida- tions. Sanitary- reports. Travelling expenses. APPENDIX III RYDE'S SCALE OF SURVEYORS' FEES Amount Fee. Amount Fee. Amount Fee. Amount Foe. of valuation. of valuation. of valuation. of valuation. £ Qns. £ Gns. £ Gns. £ Qns. 100 5 2,400 25 5,600 41 8,800 57 200 7 2,600 26 5,800 42 9,000 58 300 9 2,800 27 6,000 43 9,200 59 400 11 3.000 28 6,200 44 9,400 60 500 13 3,200 29 6,400 45 9,600 61 600 14 3,400 30 6,600 46 9,800 62 700 15 3,600 31 6,800 47 10,000 63 '800 16 3,800 32 7,000 48 11,000 68 900 17 4,000 33 7,200 49 12,000 73 1.000 IS 4,200 34 7,400 50 14,000 83 1,200 111 4,400 35 7,600 51 16,000 93 1,400 20 4,600 36 7,800 52 18,000 103 1,G00 21 4,800 37 8,000 53 20,000 113 1,800 22 5,000 38 8,200 54 2,000 23 5,200 39 8,400 55 2,200 24 5,400 40 8,600 56 Beyond this Half -a- Guinea per cent. Hie fee is exclusive of the charges for attendance and expenses. Attorney-General v. Drapers' Company. -Taxation — Surveyors' Charge — Byde's Scale — Lands Clauses Act, §80. Upon the taxation of a bill of costs relating to the re-investment in land of moneys paid into Court under the Lands Clauses Ad, the Taxing ^Master allowed a lump sum for Surveyor's charges, being a commission on the amount of the purchase-money, according to Byde^s Scale, which is a scale prepared by an eminent Surveyor of that name, on the principle that a commission, varying from 5 to one-half per cent., should be paid to the Surveyor according to the amount of the purchase-money. An application was made to the Court to direct the Taxing Master to review his taxation in respect of this item ; Held, that the question was in reality one not of principle but of amount, and that the Court would not interfere ; but that if it were a question of principle a prevailing practice of paying Surveyors by commission ought not to be disturbed. Certain lands of the Drapers' Company in the City of London having been taken by the South-Eastern Railway Company under the powers of their Acts, the purchase-money was paid into Court in this suit , APPENDIX III 385 and a Petition was afterwards presented fur a re-investment in land of M.n. 1869. the sum so paid in. Upon this petition the usual order was made Atiomcy- ... . , General v. sanctioning the proposed investment, and directing the taxation and Drapers' payment to the Drapers' Company of their costs, including all reason- ^*^"'P''°J' able charges and expenses, in accordance with the Lands Clauses Act, §80. Upon the taxation of the bill of costs the Taxing Master allowed an item of £73 for the charges of the Surveyor employed by the Drapers' Company to survey and report upon the value of the property proposed to be purchased by them, and this item was the amount of commission on the purchase-money (£12,150), according to Hyde's Scale, being a scale prepared by .m eminent Surveyor of that name, on the principle that a conmiission, varying from 5 to one-half per cent., should be paid to the Surveyor, according to the amount of the purchase-money. The highest commission, amounting to 5 per cent., is payable only when the purchase-money does not exceed £100; and the percentage diminishes rapidly as the amount of purchase-money increases. The Railway Company now applied that the Taxing Master might be ordered to review his taxation with respect to this item, on the ground that they were liable to pay only the reasonable costs of the Surveyor, calculated separately for every attendance and valuation made by him, and every plan prepared by him. Mr. Fhear, in support of the application, submitted that the Master had proceeded on a wrong principle in allowing this item ; inasmuch as he had allowed the Surveyor to be paid by commission, instead of on a quantum meruit. This mode of payment was not, he stated, allowed in the common law offices ; and, further, was capricious and unreasonable, inasmuch as it appeared by the evidence that Surveyors' charges, if paid under the like circumstances by the Corporation of Loudon, were higher in amount than those allowed by Ri/de^s Scale. Mr. Boioring, for the Drapers' Company, was not called on. Lord Romilly, M.R. : — This application is altogether misconceived. In these cases I never go into a mere question of amount, and Mr. Phear, knowing that, tried to put it on principle, but the question is, in fact, what is the proper sum to be allowed for the Surveyor's charges, and the Master has exercised his discretion upon that, and I cannot go into it. Besides, even if it were a question of principle, I should not be inclined to interfere. The charges of brokers on the transfer of stocks and shares are paid by a commission, and if a similar practice prevails with respect to Surveyors' charges I shall not disturb it : it prevents disputes as to amount ; and the charges fixed by the Scale do not seem too high. Solicitors — Mr. E. P. Cearns ; Messrs. Lawford d Waterhouse. M.B.C. 2 C INDEX ABANDONMENT, ancient lights, 21 setting back, is not, 13 alteration, not proved by, 22 blocking up light is not, 23 demolition not evidence of, 49 by erection of blank wall without lights for fourteen years, 60 no, of lights, by making dark room, 66 of approved plans, does not affect existing rights, 253 of contract, builder liable for quantity surveyor's fees, 306 owing to unforeseen expenditure, 177 difficulties with landowners, 2 difficulties in soil, 1 refusal to pay, no evidence of, 1 disentitles builder to sue on quantum meruit, 309 easement of light by alteration, not proved, 22 ABSENCE ABROAD, during erection of obstruction to light no excuse, 41 ABSOLUTE, easement must be, and not for a term of years, 61 bar in action for lights, period of enjoyment not an, 58 ABSOLUTE AND INDEFEASIBLE, right to light defeated, 50 ABSOLUTE RIGHT, no, to light, only to as much as is necessaryj 224 ACCEPTANCE, of contract subject to formal contract, 2 ACCEPTING, the benefit implies a contract to pay, 168 ACCESS, of light diminished by advanced wall, 22 ACCIDENT TO WORKS, ' removal of struts, 3 contractor liable for, 3 INDEX ACCRUING, right to light, 13 ACQUIESCENCE, action not necessary to negative, 14 alteration of contract by contractor, 6 approval of works by subordinate is not, 5 by tenant, does not bar landlord or next tenant, 17 in breach of contract, does not bar right to sue, 5 covenant, 4 not to build shop, 4 carry on trade, 127 deviations, 160 easement of light by delay, 14 extras by owner, does not entitle contractor to payment, 170 interruption of light must bo for a whole year, 21 9 minor breach of covenant no bar, 7 obstruction not constituted by seven months' delay, 50 servitude by grantor, 31 trespass, by erection of building, 6 induced by misrepresentations, 6 must be with knowledge, 17 not inferred from mistake, 48 partial, in obstruction to light, 55 with knowledge, 18 ACQUISITION, easement by thirty-eight years' enjoyment, 15 prerogative prevents, of easement against Crown, 29 ACTIO PERSONALIS, action, re ancient lights, 15 ACTION, adjoining owner whose acts cause nuisance, has no right of, 2G0 against architect by builder for mistake in valuing, 96 for negligent design, 98 by architect for fees as quantity surveyor against builder, 103 , 98, 99, 100 (a bankrupt) for fees, 109 assignee for breach of contract by assignor, 107 lies against Commissioners of Works for breach of contract, 319 builder barred by surveyor withholding certificate, 337 for balance brought before final certificate given by architect, 94 building completed before, 45 commencement of right of, 39 contractor entitled to statutory notice of, 239 Court appointed umpire, re light, while action pending, 354 of Court, attempt to anticipate, re party wall, by hurried building, 42 Court ought not to interfere if obstruction complete before action, unless fraudulent, 222 for damages recovered in previous action, 8 interference, adjoining owner may maintain, 28 ( 2 ) INDEX ACTION— continued, external extras, not necessary to produce contract for intei-iur work, 3G4 for the purpose of extortion, 04 loss of support, 332 negligence does not lie against architect qu% arbitrator, 97 in lieu of arbitration, re light, IG infringement of line of buildings gives no cause of, to private person, 199 injunction refused as injury complete before, 221 light and air, may be maintained by reversioner, 220 may be maintained against adjoining owner, however short user, 223 mortgagees against architect for negligence, 97 for plant, &c., mortgaged, 109 no defence that builder's observance of statute caused injury, 239 rule to refuse injunction when injury complete before, 221 not barred because plaintitf had diminished the light, 55 by tenant from year to year, 48 necessary to negative acquiescence, 14 notice of, under § lOG of 25 & 2G Vict. c. 102 ..7 owner, against architect for mistake in measuring, 9G re light, owner against lessee, 16 on covenant to build in reasonable time, no defence that a reasonable time since notice has not elapsed, 312 quantity surveyor, against architect who engaged him, architect held liable personally, 104 right of, for obstruction barred by unity of possession and occupation, 226 successful, for extras ordered verbally which should have been in writing, 161 will not lie for injmy to prospect, 300 wrongful seizure of plant and materials, 7 ACTUAL ENJOYMENT, occupation not necessary, to obtain a right by, 73 ACTUAL VALUE, contractor departing from specification not entitled to, 362 on proof of defective work, payment of, 364 ADDITIONS, not a new building, 264 infringing by-law, a continuing offence, 140 ADEQUATE, lights still, but diminished, 32 ADJOINING OCCUPIER, can maintain action for interference, 28 " ADJOINING OR CONTIGUOUS," premises on opposite sides of same street held to be, 60 ADJOINING OWNER, entitled to party structure notice, 256 may recover contribution to cost of party wall from rent, 2S0 not liable for withdrawing support, in absence of right, 327 ri"-ht of, to prevent acquisition of easement of light and air, 223 ( 3 ) INDEX ADJOINING TENANT, under same lessor, rigbta against, 44 ADJOINING TENEMENT, owner rebuilding party wall not bound to make good damage to adj oiaing premises, 272 ADVANCES, assignment of instalments by builder to secure, 108 ADVERTISING STATION, agreement to let, is licence and not tenancy, 8 triangular, not a " new building," 245 AFFIRMATIVE CASE, may be displaced by proof of interruption, G7 AGENT, architect is not, of owner, to order deviations, IGO AGREEMENT, form of, and schedule of conditions for building contracts, 369 intention of entering into an, 2 not to tender, enforceable, 9 AIR, building so as to cause smoky chimneys is breach of covenant for quiet enjoyment, 145 coming through adjacent cellar, 11 not coupled with light in the order, as a matter of course, 55 space not provided as required by by-law, 140 stoppage of, in street, 9 to drying sheds obstructed, 10 chimneys, 10 timber sheds, injunction refused, 11 wind-mill, 12 no right of, 12 ALL THE LIGHT, owner entitled not merely to sufficient, but to, previously enjoyed, Gl ALTERATION, ancient lights, 17 of contract, acquiescence by contractor, G of dominant tenement does not destroy casement, IG of lights, 39 of lights, not abandonment, 22 in mode of enjoyment, 20 material, written contract not invalidated, 309 not abandonment, 21 old building party wall, 12 ordered by purchaser does not affect vendor's warranty of fitness, 35 8 in position of ancient lights, 13 by consent, 31 •within meaning of Metropolitan Building Act, 1855.. 12 " total," of new building, loss of easement of light by, 58 ( 4 ) INDEX ALTERED AND ENLARGED, excess over ancient lights may be obstructed, 35 old lights to be restored, 3G lights, user of some discontinued, 35 altered position of ancient lights, definite position of old must bo proved, 20, 18, 18, 19 number increased, 17, no intention to abandon, 20 AMBULANCE STATION, not a "public building," 300 ANCIENT AND OTHER LIGHTS, ' accruing riglits, extinction of, 13 acquiescence in casement of, 14 by delay, 14 acquisition of easement, 14 action by, executors, 15, 15 owner against lessee, 16 in lieu of arbitration, IG alteration not abandonment, 21, 22 and enlargement, 17 altered position, number increased, 17, 18, 18, 19 no intention to abandon, 20 definite position of old must be proved, 20 angle of 45''.. 22 reduced, 22 remaining, 23 blocked up for more than a year, 36 blocking up not abandonment, 23 borrowed light, 24 builder indemnified, 25 under building agreement cannot grant easement, 24 burden of proof of reservation of light, 28 class of window deemed ancient, 53 collateral damage, 28 coming through same channel, 11 stained glass windows obstructed, 70 covenant not to diminish value of premises, 76 Crown not affected, 29 custom of London to build to any height on old foundations, 29 damages in lieu of injunction, 30 dark-room window obstructed, 66 deviation from plan, with notice, 31 dimensions and number of lights increased, 31 enlarged, by dominant owner, 31 easement of necessity, 33 not extinguished by unity of ownerehip of dominant and servient tenements for dill'crcnt estates, 73 reserved, 33 twenty years' enjoyment before unity of possession, 76 • ( 5 ) ANCIENT AND OTHER LIGHTS— co tit inued. enlarged and altered, user of some lights discontinued, 36 old to be restored, 36 excess may be obstructed, 35 enlargement of, 34 vvidence of loss, 21 exact position not ascertainable in new building, 57 extinguished bj' statute, 33 extra light required for special purpose, 36 fanlight obstructed, 37 grant of, accompanied by a covenant for quiet enjoyment, GG house possessing, rebuilt to a different design, 57 identical servitude, 39 inchoate rights, 39 title, 39 indefeasible right of tenant against fellow-tenant of same landlord, 40 injunction and damages, 41 granted for obstruction, 40 inspection ordered before defence, 41 interference after notice, 42 not proved although lights partially obstructed, 50 with, by building scheme, 27 a nuisance, 50 lateral and vertical light to skylight, 65 obstruction, 42 leave and licence, 43, 43 lessee of lights not old, 44 lessor against lessee, 44 light diminished but still adequate, 32 of sorting-room interfered with, 68 " low " or " under" light required, 44 mandatory injunction refused, 45, 46 for delay, 41, 46 ordered, 45 on interlocutory application, 46 material inconvenience not proved, 47 injury amounting to nuisance, 47 not proved, 48 may be obstructed if involved in obstruction of new lights, 35 mistake as to position, 48 mode of enjoyment altered, 21 user and position must be the same, 77 mutual vindictiveness of parties, bill dismissed, 49 narrow passage, obstruction of, 55 new premises cannot claim more light than was necessary for old business, 79 non-existing window no bar to action, 49 not reserved by conveyance, 50 sensibly diminished, 62 sufSoient to prove mere diminution, 32 obstructed by contiguous gable, 28 light to greenhouse may be protected, 38 by party structure, 51 ( 6 ) INDEX AJJCIENT AND OTHER LlCjllTS— continued. obstructed by piles of timber, 51 obstructing wall at right angles to lights, 78 obstruction of, assignee liable, 30 after notice, 51 by building scheme, 2G in large light, 34 by an external shop-case, G3 of fluted glass, 38 by houses on same estate, 25 of new, illegal, if involves obstruction of old, 52 unfinished building, 73 by paling, 52 shop window, G3 of skylight and glass door, 07 staircase window, G7 only entitled to light for ordinary business, 54 opaque glass ubstnicted, 53 opened by tenant for his trade, 79 owner entitled not only to sufBcient but to all light previously enjoyed, Gl parol licence by occupier, 78 to open light, 78 partial acquiescence in obstruction, 55 photographic studio obstructed, 56, 56 plaintiff contributing to diminution of, 56 need not be the occupier, 57 presumptive bar, in action for, 58 required for particular trade, 71 reservation by lessor of right to obstruct, 60 restored in blank wall after being fourteen ycai-s built in, GO restrictive user of land in lease not operating as an agreement that lessee would permit obstruction by adjoining owner, 77 reversioner as plaintiff, 60 right of lessor to obstnict light of adjoining house which he conveyed to purchaser, 62 right to, overlooking public space, 54 of Crown, 61 plaintifT and defendant purchasing from same vendor, 59 sales of adjoining premises at different times, 59 scientific report by order of Court, 62 setting back is not abandonment, 13 shutters seldom removed from lights, 64 skylight blocked for seven years without knowledge of reversioners, GS enjoyed by consent, 65 supported by party wall, 66 skylights, 64 special quantity of light required, GO for particular trade, 69, 70 statutory powers to extinguish right to, 70 sufiBcient left for comfortable enjoyment, 71 tenant for life cannot grant easement, 34 trifling obstruction, e.g. loss of a ray or two is no cause of action, 72 ( 7 ) INDEX ANCIENT AND OTHER LIGHTS— con Unued. undertaking to abide order of Court, 72 unity of occupation of dominant and servient tenements bars acquisition of right, 73 unity of ownership, IG possession of dominant and servient tenements, 74, 75 bars acquisition of right, 75 proved, 78 ANGLE, of incidence diminished, 72 45°, re light reduced, 22 remaining, 23 right to build until structure subtends, 44 rule as to, 22 ANTECEDENT BUILDING AGREEMENT, controlling subsequent lease, 33 APPEAL, to Quarter Sessions against demolition order, 80 ArPROrRIATION, of payments, onus on landlord that there was no, 125 APPROVAL OF PLANS, mandamus to local authority directing, 132 " APPROVED " PLAN, is one lawfully approved and not merely approved in fact, 288 neither, nor disapproved, conviction notwithstanding, 291 ARBITRATION, in lieu of action, re light, 16 re jurisdiction, to serve out of jurisdiction summons to enforce award, 80 submission to, not to be made a rule of Court, 90 submission irrevocable, 81 time for, under Puhlic Health Act, 1875,. 150 ARBITRATION CLAUSE, action for plant seized, not a " dispute " within, 82 architect's certificate held not to annul the, 85 does not apply to extras, 171 plaintiff not bound by, 16 ARBITRATOR, action against architect for error in measuring up docs not lie, as he is in position of, 99 action docs not lie against architect acting as, 97 has only jurisdiction, re party wall dispute, 276 unfitness a ground for revocation of submission, 81 wrongfully invoked, 82 ARCHITECT, action against, for mistake in plans, 99 negligence in certifying, 97 designing, 98 ( 8 ) INDEX AUGlllTEGT— continued. action against, for negligence and receiving secret commission, 07 by, for fees, 91, 91, 91, 92, 92, 92, 93, 94, 08, 99, 100, 100 against Scliool Board, 93 as quantity surveyor, 103 accepting quantity surveyor's measurements, 80 as quantity surveyor liable to the builder for mistakes in quantities, 307 certificate destroying finality of arbitration clause, 85 bankrupt, suing for fees, 109 barred from suing for fees, 93 can bind employer, 83 award not a condition precedent to action by owner, 83 certificate a condition precedent to action by builder, 84 payment, 138 of completion estops owner denying completion, 85 concludes the question of penalties, 284 is conclusive, 84, 85, 89 conclusive in absence of fraud, 86 for extras conclusive even if no order in writing, 171 final, 86 withheld, 84 for balance collusively withheld, 104 not final as between owner and, 100 if dispute arose before certificate given, 87 necessarily in writing, 87 clause of reference does not oust jurisdiction of Court, 88 collusion with owner, 88, 88 completion to satisfaction of, a condition precedent to payment, 139 county court judge has no jurisdiction under § 102 (1) of JJankrujHcy Act, 1883, to order a, to certify, 111 j decision final, 89, 90 default of owner, penalty not incurred by contractor, 228 delay in furnishing plans to builder, 86 employed by parol by local authority, 106 who engaged quantity surveyor held liable for his fees, 93 extras to be ordered in writing by, 91 iinal certificate bars action for defective work, 155 fraudulently withholding certificate, 88, 94 functions as arbitrator are ministerial, not liable for error, 90 held liable to quantity surveyor personally engaged by him, 104 house to be built to satisfaction of, involves position as well as design, 83 errors of, in quantities, does not affect owner, 306 libel on, in respect of his qualifications, 95 misconduct in not extending time, and in seizing works, 95 mistake in measurement and valuation, 90 no warranty by, of accuracy of quantities, 302 not agent for owner to order deviations, 100 liable to quantity surveyor engaged by him, 103 negligence in measuring, 90 superintendence, 100 omitting to survey, 93 owner cannot refuse to pay fees because estimate is exceeded, 91 ( 9 ) INDEX ARCHITECT— coH/uiist ruction, 2H1 RENT, tenant may deduct contribution to party wall from, 280 REPAIR, covenant to keep in, for seven years, 3 REPAIRING LEASE, tenant liable for damage by local authority, 314 REPEAL OF STATUTE, earlier statute not repealed by local act inconsistent thcrewilli, 314 § 53 of PMic Health Ad, 1848 .. 108 REPUTED OWNERSHIP, plant and materials in, with consent of true owner, 114 RESERVATION, of light burden of proof, 28 of easement of light, 33 by grantor implied (light), 27, 33 of new lights as ancient lights, 57 lights not in conveyance, 50 right to obstruct by lessor, 59 sale of part of property with, of lights in the remainder, 50 RESIDENT ENGINEER, mistake causing delay, of, lOG RESTORATION, of ancient lights undertaken, 36 RESTORED, lights in blank wall after standing fourteen years, GO RESTRICTION, of free use of land does not operate as lessees' cons-cut to olstructlon of light by adjoining owner, 77 RESTRICTIVE COVENANTS, building estate, 35G as to buildings to be erected on building estate, 31G rights of subsequent purchaser of unsold lot at auction, 129 RETENTION, of lights in i)arty wall contrary to Building Acts, does not destroy rights, 42 RETENTION-MONEY, assignment good against trustee in bankruptcy, 118 M.B.C. ( 63 ) ' 2 G INDEX REVERSIONER, may sue, althougli not yet injured, 08 can maintain action for light and air, 220 as plaintiir in action re lights, GO, 78 may sue in trespass by footings of party wall although tenant made no com- plaint, 27G skylight blocked up for seven years without knowledge of, G8 REVOCATION, of licence to post bills, 8 of parol licence without notice, 10 lilGHT, of assignee of l)uil(ling agreement to receive leases although builder in default, 12G RIGHT ANGLE, new street in form of, does not afford direct communication, 254 obstruction to light at, to plaintiff's premises, 47 wall oltstructing at, to lights, 78 RIGHT OF ACTION, tenant opening a light for his trade has no, if obstructed, 79 vested before death of contractor; personal representative has, to sue for salary due, 280 RIGHT OF WAY, blocked by a building, mandatory injunction granted, 310 RIGHT TO ANCIENT LIGHTS, not destroyed by retention of lights in building wall contrary to Buildin;/ Ad, 42 not destroyed by enlargement, 74 extinguished by statute, 70 RIGHT TO SUE, person acquiescing not deprived of, 5 RIGHTS, against adjoining tenant under same lessor, 44 ROOF, covered with "Duroline" is not covered with incombustible material, 317 ROYAL INSTITUTE OF BRITISH ARCHITECTS, rules of, 94 RUBBISH SHOOT, using laud for, is waste, 317 RULE AS TO OBSTRUCTION AT ANGLE OF 45°, 217 RULE OF COURT, words purporting that submission to arbitration shall not be ma OBSTRUCTION, must be pro\cd to obtain injunction, 71 SUBSTANTIALLY LESS FIT FOR OCCUPATION, interference rendering house, 28 SUBTENDS ANGLE OF 45°, right to build until building, 44 SUFFICIENT CAUSE, defence not delivered is, for refusing inspection, 41 SUFFICIENT LIGHT, left for comfortable enjoyment, is the test of cause of action, 71 owner entitled to all, and not only, 61 SUMMONS, defective, for cost of hoarding round dangerous structure, 154 premature, for cost of hoarding round dangerous structure, 150 SUNLIGHT, substantial amount of, shut out, 78 SUPERINTENDING ARCHITECT, certificate of general line of buildings conclusive, 188 not a condition precedent, 180 decides whether a building is in a particular street, 185 local authority may delegate its authority to, 153 magistrate not bound by certificate of, 183 SUPERINTENDING WORK, negligence of architect, 100, 100, 100 SUPPORT, action by licensee lies for negligence causing loss of, 331 adjoining owner not liable in absence of right to, 327 dominant owner of, easement of, may put any weight on party wall it will bear, 2G8 easement of, from wooden struts, 335 excavations in spongy land, causing loss of, 327 Iiouses in terrace enjoy mutual, 330 to the knowledge of plaintiff and building owner, 330 loss of, by builder's negligence in shoring up, owner liable, 332 removal of house next that adjoining, not actionable, 332 sinking well not actionable, 333 working mine, 334 must prove servient owner knew his premises afforded the support lost, 334 ( 70 ) INDEX fiVVVORT— continued. no easement of, altliotv^'li oiijoyed for more than twenty years, 330 no implied covenant of, 331 owner and contractor jointly lial>Ic for loss of, 320 not liable for cutting footings, 327 right to, implied in grant of bm"lding land, 333 may be acquired by twenty years' enjoyment, 329 subsidence caused by piling stones is actionable, 333 withdrawn by excavations, owner liable although land was wet, 320 SURETIES, assignees of contract and percentages held entitled in bankruptcy of con- tractor, 110 cannot set up fraud of their builder, 178 SURETY, guaranteeing payment not liable unless contract money paid to him, 335 liable, although owner did not properly superintend, 336 SURPLUS LAND, by-law requiring railway company to give building notice re, valid, 135 implied grant of easement of light and air in sale of, by railway company, 218 SURVEYOR, action for fees as engineer, 346 appointment of, a condition precedent to expenditure of fixed sum, 139 builder not at liberty to prove certificate of, was fraudulently withheld, 336 certificate conclusive, 337, 337 of completion never given, no bar to builder's action, 338 of, under Lands Clauses Act, lSi5..3-iG withheld, barring builder's action, 337 as contractor, liable for cost of materials, 338 contract with union must be sealed, 339 custom of engineer to order surveys proved, 338 compelled by mandamus to enforce statute, 234 dismissal of, and appointment of successor, 337 entitled oidy to one fee for building containing several suites, 340 to separate fee for each distinct building, 311 fees vary under dilVerent statutes, 340 5 per cent, held reasonable, 341 Hyde's scale, 342, 384 implied power to determine what are extras, 174 landlord not "owner " liable for fees of, 342 lessee is " owner " liable for fees of, 330 liable for penalties for receiving payment for quantities, 345 negligence in valuation, 343, 344 must recover fees within six mouths to run from date of furnishing bill, 343 negligence in supervision binds owner, 344 notice of, binds local authority, 254 repairs to entrance doors need not be given to, 256 '• owner " liable, is the owner when fees became due, 344 paid according to his labour, and not on the amount checked, 341 refusal to certify, 345 time-limit of seven davs only refers to appointment of survej'or, 155 ( 71 ) INDKX TAILOR'S WORKSIIOi', obstruction to lights in, 71 " TAKEN DOWN," house is not, if suhstantial part and front wall remains, 181 substitution of brick for stone sills, house not, 181 TEMPORARY INJURY, caused b}' hoarding, restrained, 220 TEMPORARY STAND, is a " wooden structure " controlled by London Borough Councils, 347 TEMPORARY STRUCTURE, to carry on business during repairs requires permission of local authority, 349 of canvas used as mission hall is not a " building," 348 maintaining, is a continuing oU'ence, 141 proceedings barred by lapse of time, 347 rink licensed for two years ; no authority to remove after, 348 TENANT, in common, action for negligence against builder by, 238 may deduct contribution to party wall from rent, 280 not an "■ owner" so as to be entitled to party wall notice, 278 obstruction of lights opened by, for his trade, gives no right of action, 7D owner sued by tradesman for order given b}', 3G4 under repairing lease, liable for damage done by local authority, 314 failed to recover contribution to cost of party wall from landlord, 281 using party wall without leave, not liable for half cost, 283 TENANT FOR LIFE, cannot gi"ant easement of light, 34 nominal damages without costs, given to, for interference with light and air, 220 TENANT FROM YEAR TO YEAR, entitled to injunction, 73 is licensee, and not entitled to notice, 8 not barred from bringing action rt interference with lights, 48 TENANTS, in common, adjoim'ng owner held to be, of party wall, 281 paupers are not, 70 under same landlord, rights of, 40 TENDER, acceptance of, terminates owner's liability to quantity surveyor, 307 agreement not to send in a, 'J TENEMENT HOUSE, double, held to be two buildings, ."U',) THEATRES AND MUSIC HALLS, no power to serve second notice, under § 11 of MdropoUtian Manafjcmcnt Act, 1878, in respect of same building, 350 ( 72 ) INDEX THIRD PAKTIES, owner sued by tratlcsinau for order given by tenant, 3G4 THREE-STOKE Y HOUSE, required to have open space of 100 feet, 201 TIMBER SHED, air to, injunction refused. 1 1 TIME, for bringing action for damage to inghways, 148 compliiint of dangerous structure, out of, 15<) of completion, a condition precedent, 130 summons re building line brouglit witliin six months, 10(3 proceedings for continuing oflenco may be taken within six months of its continuing; to exist, 141 sunniions within six months after discovery or commission of olTcnce, valid, l!iO, 203 temporary structure without permission, proceedings barred, 347 TIME IMMEMORIAL, lights in existence from, plaintiff entitled to injunction if bill filed before obstructed, 74 TIME-LIMIT, iu action against public authority, only applies in respect of neglect of public duty, 351 party wall action, three months, 281 under rul.Jic ThaWi Art, 1875. .325 complaint for breach of by-law is six months : applies to all orders a justice has power to make, 351 re building line is six months, applies only in case of penalties, 102 buildings not erected within, fresh deposit of plans necessary, 200 for completion of contract not extended, 351 forfeiture clause must be enforced before expiration of, 157 contractor bound by, although delayed by extra works, 172 extension of, may amount to waiver, 354 penalties begin to run from date of discovery of infringement, 184 permitting house to be built after, no waiver, 358 waiver by owner's inaction aftei', had passed, 357 TOO TRIFLING, creaking of hoarding, to justify injimction, 250 raising party wall 53, feet held, 210 TOOLS, detention of, may be conversion, 144 T< )RTS, tort-feasor cannot bo joined where, are distinct, 230 TOWN HOUSE, right to same light in country, as in, 71 TRACTION ENGINE, causing damage to roads, 148 ( 7;! ) INDEX TRADK, breacli of contract not to use laml for purpose of, by erection of school- house, 318 building used partly for, containing more than 210,000 cubic feet, must be divided by party walls, 270 covenant against carrying on, 127 dwelling-house jiartly used for, 1G2 TRADE PREMISES, obstruction must render them less beneficial, 32 » TRADER," barrister erecting houses is not, 123 solicitor completing for sale a number of houses is not, 121 TRADESMAN, sued landlord for orders given by tenant, 3G4 TRANSFER, of powers as to wooden structure by London Government Act, 1899, 361 TRANSLUCENT SCREEN, with louvres in garden, held no obstruction, 225 TRELLIS SCREEN, a " building," and a breach of covenant, 352 TRESPASS, building on land of another, G iloes not lie by one part-owner of party wall against the other, 353 by footings of party wall, reversioner can sue through tenant made as com- l)laint, 27G by laying drain-pipe on plaintiff's premises, 7 owner who did not waive last breach of building contract, not liable for, on re-entry, 354 by part of house projecting into adjoining premises, 353 to party wall by erection of w.c.'s, 282 jmlling down and rebuilding part of party wall is not, 353 TRESPASSER, takes all risks of injury, 19G TRIANGULAR PLOT, abutting on two streets, building on, is not forming a " new street," 251 TRIBUNAL OF APPEAL, may vary general line of building, 200 TRI FLING DEVIATION, not material unless corruptly made, IGO TRIFLING OBSTRUCTION, e.g. loss of a ray or two of light, not good cause of action, 72 TRIVIAL INJURY, action dismissed, although interference with lights proved, 47 ( 74 ) INDEX TRUSTEE, completing contract, 107 plant and materials clainieil in bankruptcy, UG TWENTY YEARS' ENJOYMENT, computed from commencement until action brought, 219 right to support may be acquired by, 329 that period next before some action in which claim to light is questioned, 147 TWO ADJOINING OWNERS, Grant by one of, 33 TWO STREETS, building may be in ; a question of fact, 183 corner house held governed by building line in, 141 UMPIRE, appointed by Coiu't under the Building Act, 1854, although action re lighta pending, 354 " UNDER LIGHT," for studio. UNDERPIN, adjoining owner may. 292 UNDERTAKING, re lights, 21 UNDISCHARGED BANKRUPT, architect may maintain action for fees earned after bankruptcy, 109 " UNDULY DELAYING PROPER PAYMENT," builder's conduct in filing his petition may amount to, 112 UNFINISHED BUILDING, obstracting liglits of, 73 UNFITNESS, of arbitrator from partiality, 81 UNITED BUILDING, need not be separated by party wall, 282 UNITY OF OCCUPATION, of dominant and servient tenements. bai"s acquisition of right to liglif, 73 UNITY OF OWNERSHIP, ancient and other lights, 16 bars right to obstruct light and air, 225, 225 easement not extinguished by, of dominant and servient tenements for diflferent estates, 73 ( 7.-. ) INDEX UNITY OF POSSESSION, ancient liglits existing more than twenty years before premises were in, 70 of dominant and servient tenements, 74, 75 Lars right to light, 75 only suspends easement of eaves-dropping, 104 premises used as timber sheds, 1 1 proved re light, 74 UNITY OF POSSESSION AND OCCUPATION, bars right of action for obstruction to lights, 22G UNLIQUIDATED DAMAGES, assignee of bankrupt building may maintain action for, accruing prior to bankruptcy, 110 UNREASONABLE, by-law requiring seven days' notice of erection of hoarding, 255 corporation restrained from attaching, conditions to licence for hoarding, 205 condition to dedicate the whole of certain space, for permission to build in front of line, 195 custom for architect to retain plans, 102 delay in maintaining hoarding and building work, 206 dissatisfaction of owner, 1G5 UNSOLD LOT, rights of purchaser of, in sale of building estate, 129 UNSTABLE FENCE, causing injury to child who climbed upon it is a nuisance, 2G2 UNSTAMPED CONTRACT, Court will not look at, to ascertain the amount of extras, 167 UNTRUE STATEMENTS, in architect's certificate, 97 UNWORKABLE, plan, is negligence for which engineer is liable, 166 " USED IN PART FOR TRADE," public-house attached to dwelling-house not, 163 USER, action may 1)e maintained against obstruction however short, 223 of light and air in particular way for twenty years does not give right to preclude adjoining owner from obstructing, 215 USER OF LIGHT, shutters seldom removed, 64 VACANT GROUND, new streets leading to, must be of prescribed width, 252 VACANT PREMISES, right to light can be acquired by, 73 ( 76 ) INDEX VALUATION, - ^^ valuer may be iuteiTOgated as to basis of, 210 VALUE, diminished by obstruction will justify injunction, 2-1 minimum, of house covenanted to be built on estate, 129, 130 of premises, plaiutilV nnist show diminution of, 72 VALUER, may be interrogated as to the basis of valuation, 210 VERTICAL COLUMX OF AIll, belongs to the owner of the building beneath it, 353 VERTICAL OR LATKUAL LIGHT, coming to skylight, (Ja " VERY SERIOUS," mandatory injunction granted where damage was, although obstruction completed before action, 4G VIBRATION, injunction to restrain damage from, granted, 355 VIEW, breach of covenant by erecting building obstructing, restrained, 356 Court will not restrain obstruction to, 355 VINDICTIVENESS, of the parties, action dismissed for mutual, 48 VOID, assignment of building materials, not registered as a bill of sale, void as against execution creditor, 120 contract by officer with local authority, not, 143 VOLUNTEER BUILDINGS, not exempted from sanitary provisions of Metropolis Management Acts, 356 WAIVER, of condition that deviations were to be ordered in writing, IGl covenant to build house, 357 penalty by ordering extras, 230, 357 if last breach of building contract is not waived, owner is not estopped from entering, 354 by inaction after time-limit had passed, 357 permitting building to proceed after time-limit, is no waiver, 358 temporary structure, no waiver of covenant, 289 WALL, is a " house," 163 WARRANTY, none by architect as to quantities, 302 of fitness, not aftected by purchaser ordering alterations in machmery, 358 no implied, by owner that appliances are fit for the work, 120 ( 77 ) INDEX WASTE, using land as nibliish shoot held, 317 \\ATE1!, loss of support, by sinking well, not actionable, 333 WATEIl-CLOSETS, local authority has power to order, in lieu of privies, 29G owner cannot object to inspection order, that existing arrangements aro sufficient, 359 WEEKLY BUILDING ACCOUNTS, parol evidence admissible to prove custom to send in, does not apply to extras, 146 WELL SINKING, causing loss of support, not actionable, 333 WHOLE YEAR, acquiescence in interruption of light and air must be for, 219 WIDTH OF STREET, height of building not to be more than, 203 means width of roadway, not width from house to house, 248 WILFUL OMISSIONS AND DEVIATIONS, by builder, helil fraud, 1 79 '^ WIND AND WEATHER PERMITTING," effect of, eliminated from tender and contractor informed, WINDMILL, air to, not within Prescription Ad, 12 house obstructing air to, held to be a nuisance, 12 used for advertising, a sky-sign, 321 '' WINDOW OVERLOOKING," skylight held to be a, 65 WINDOWS, deemed by law ancient lights, 53 formerly apertures in a barn, 20 WITHDRAWAL, of parol licence to open lights, 78 WITHHOLDING CERTIFICATE, architect collusively, 104 WITHOUT INTERRUPTION, enjoyment of light must be, 14 WOODEN BUILDING, for butcher's portable shop is a " new building," 35 WOODEN FOOTINGS, substituted for stone, illegal, 208 ( 78 ) INDEX WOODEN SUED, for choppiii,!:^ wood on wharf is a '• iiuw buihliiiL'," 2U\ WOODEN STRUCTURE, effect of transfer of powers by London Government Art, 1890 ..36 1 office ill coal yard does not require licence, 360 pay-oflice on wheels does not require licence, 360 used as stable is a " new building," 362 temporary stand in street to view procession held a, 347 shooting gallery and roundabout are not a, 348 "WOODEN STRUCTURE OR ERECTION," erection of bungalow for sliow and sale does not require a licence, 350 WOODEN STRUTS. easement of support from, 335 WORK, carried out by local board, after notice, 7 defective, discovered after lapse of time-limit, 155 done improperly although architect certified, 100 to knowledge of owner, 83 although extras not ordered in writing, 161 not jiroceeded with, action by architect against guardians for fees, 104 liability for and amount of architect's fees, 04 for quantity surveyor's fees, 103 of owner for architect's fees, 91, 91 WORK AND LABOUR, done according to plan never approved, lessee may recover from lessor on an implied promise to pay, 362 architect may maintain action for, if done after his bankruptcy, 109 builder not entitled to sue for cost of deviations as, 160 contractor sells his skill as well as labour and ought to know whether work will suit, 363 credit for repairs to church given to churchwarden and not incumbent, 362 defective, contractor can only recover agreed amount, less cost of com- pletion, 362 liable although he could not do it better, 364 owner may prove, and builder may recover only the actual value. 364 evidence that defendant ordered other tradesmen to do work at the same house, admissible to prove liability, 364 executor completing contract may recover for, 160 lessee can recover for, done with his lessor's consent although no agrccmc nt 363 not neces.sary to produce contract for internal work when external extra? ordered, 364 owner liable to sub-contractor fur extras, as, 174 WORKMANLIKE MANNER, contractor must do work in, even with old materials, 364 WORKS OF ART, light necessary to sec and enjoy, 70 M.B.C. ( 79 ) 2 11 INDEX WRIT, ^ dcfeudant evading service of, 51 WiUTTEN CONSENT, approval stamped on plans construed a, 292 WRITTEN ORDER, extras to be done only on, 91 condition precedent to payment for extras, 170 contractor failed to recover for extras without, although architect had certified, 173 YARD, of old house is equivalent to house, and may be built on even if infringing line of building, 199 wall raised and roofed over, held a " building," 201 THE END I'lilKTED BY WILLIAM CLOWES AND SONS, LIMITKD, LOKDON AKO BECCLES. ^^•VERS.TV0PC.UP0RM, This book is DUE I^ Angeles UBRARY o-^he last dare stamped below. PSD 1916 8/77 LAW L!«5»ARY OF LOS anullls county ot,"!>'«KAKl AA 000 744 244 5