filled, the water burst down the shafts over which it had been constructed, and flooded B.'s mines.

The facts in the above case are similar to those in the now leading case of Rylands v. Fletcher, L R 3 H. L. 330; 37 L. J, Ex. 161. There the plaintiff was the lessee of mines, and the defendant was the owner of a mill standing on land adjoining that under which the mines were worked. The defendant desired to construct a reservoir, and employed competent persons to construct it, so that there was no question of negligence. The plaintiff had worked his mines up to a spot where there were certain old passages of disused mines; these passages were connected with vertical shafts, communicating with the land above, which had also been out of use for years, and were apparently filled with marl and earth of the surrounding land. Shortly after the water had been introduced into the reservoir, it broke through some of the vertical shafts, flowed thence through the old passages, and finally flooded the plaintiff's mine. (Underhill on Torts, 13.) The House of Lords held the defendant was liable, on the ground that "a person who for his own purposes brings on his land and collects and keeps there anything likely to do mischief if it escapes, must keep it at his peril; and if he does not do so, is primâ facie responsible for all the damage which is the natural consequence of its escape."

The case was, therefore, not decided on the ground of any negligence of the defendant. It was lawful for the defendant to collect and keep the water, but it was not lawful to let it escape. The escape was not like an act of God, for which no man would be responsible, but it was within the range of being an act or omission attributable to active or passive volition on his part, and for which the injurer is responsible to the injured. For an apparently similar case, but distinguishable on the latter ground, see Nichols v. Marsland, L. R. 10 Ex. 255, affirmed L. R. 2 Ex. D. 1; 46 L. J. Ex. 174.

158. A. and B. are adjoining landowners. A. requires certain lawful work to be executed on his own premises, and employs C., a contractor, to execute such work. In the course, and in consequence thereof, injury is caused to the premises of B., he being entitled to the support for his house of A.'s soil. C., the contractor, before

commencing the work, has undertaken the risk of supporting B.'s house during the work, and to make good any damage, and satisfy any claims arising therefrom. Is A. thereby relieved from liability in respect of the damage done, and if so, why? If not, upon what principle of law is he liable?

No, he is not relieved thereby, and is personally liable for any such damage. The contractor may be sued independently by A., or brought in as a third party against whom A., on being himself sued, may claim indemnity, if the Court does not refuse A. leave to so bring C. in. The principle involved is that a man who orders work to be executed from which, in the natural course of things, injurious consequences to his neighbour must be expected to arise, unless means are adopted by which such consequences may be prevented, is bound to see to the doing of that which is necessary to prevent the mischief. The removal of the soil, not in itself wrongful, becomes so immediately on its causing injury to the plaintiff's house, and having been ordered by the defendant, it then becomes his wrongful act, the responsibility of which cannot be thrown upon the agent he employs. (Bower v. Peate, 45 L. J. Q. B. 446; Angus v. Dalton, 50 L. J. Q. B. (H. L.) 689.)

NOTICE.

159. Explain the doctrine of notice, and apply it to the following case:-A. purchases an estate, with notice of an incumbrance held by B.; A. sells to C., who has no notice, and C. sells to D., who has notice. Can B. claim against D., and does it affect the question whether the estate sold is legal or equitable?

He who has actual or constructive notice of an incumbrance is bound by it, whether his estate be a legal or equitable (or beneficial) one only. If a person purchases an estate without notice of any such incumbrance, and obtains the legal estate, he is protected against any such incumbrance. If a person purchase an estate still without notice of any such incumbrance, and only obtains the equitable (or as it is now more properly called the

beneficial) estate, he is not protected against any such incumbrance, but takes subject to it, for the owner of an equitable estate takes it subject to all the equities affecting it.

In the above case, assuming the estate sold to be the legal estate, B. cannot claim against D., because D. can take shelter under C.'s title. If this were not so, C. could not dispose of his good title to advantage. If the estate sold is only an equitable or beneficial one, then B. can claim against D. for the above reasons. (See H. A. Smith's Equity, 278, et seq.)

The doctrine of constructive notice is considerably limited in its operation by sect. 3 of the Conveyancing Act, 1882 (45 & 46 Vict. c. 39), and this section is retrospective in its operation, except as to actions pending at the commencement of the Act.

NUISANCES.

160. Give a comprehensive definition of the term "Common nuisance," and point out and illustrate by example each of the different classes of nuisance falling within your definition.

A nuisance is something done which has the effect of prejudicially and unwarrantably affecting the enjoyment of the rights of another person. (Smith's Man. Com. Law, 8th ed., 8.) A public or common nuisance is a nuisance (as above defined) which affects the public, i.e., all persons who come within the sphere of its operation, though it may affect some persons more than others. (Vide id. 9.)

Public or common nuisances are classed amongst crimes and misdemeanours, and are annoyances to all the Queen's subjects, whether by act of commission or omission. They are generally indictable only, and not actionable, for it would be unreasonable to multiply suits by giving every man a separate right of action for what damnifies him in common only with all others.

Public nuisances are:

(.) Annoyances in the highways, bridges, and public rivers, by rendering the same inconvenient or dangerous to pass, either

positively by actual obstructions, or negatively by want of reparations.

(b.) All those kinds of nuisances (such as offensive trades and manufactures) which, when injurious to a private person, are actionable, are, when detrimental to the public, punishable by public prosecution, and subject to a fine according to the nature of the offence.

(c.) All disorderly inns, ale-houses, bawdy-houses, gaminghouses, stage-plays unlicensed, booths, and stages for rope-dancers, mountebanks, and the like.

(d.) All lotteries.

(e.) The making and selling of fireworks in unlicensed places, or throwing them about in any street, on account of the danger that might ensue to thatched or timber buildings.

(f) Eaves-droppers.

(7.) Common-scolds. (4 Steph. Com., 7th ed. 270.)

161. What is the distinction between a public and a private nuisance, and what are the remedies respectively applicable? What must a plaintiff prove in order to obtain an injunction to restrain obstruction to light and air, or to obtain damages?

A private nuisance is one which affects the comfort or enjoyment of only one individual, or at most, a limited class of individuals, A public nuisance is one which, as we have seen, similarly affects all persons who come within the sphere of its operation. The importance of the distinction lies in the fact that in the case of a private nuisance the injured person has a personal right to a civil action for its redress, though it is not in every case that he will be entitled to the special remedy of injunction.

If the act complained of is of such a nature as at the same time to interfere with the comfort or enjoyment of all within its reach, and to cause a special and distinct injury to a limited class of persons, it is both a public and private nuisance, and the person causing it is obnoxious to both remedies. The person or persons suffering the special damage may bring an action; and at the same time the Attorney-General may proceed on behalf of the public. But in order to justify the private action, the injury done to the plaintiff must be of a different character from that which he suffers

in common with the public. It does not suffice that from his mere proximity to the nuisance he happens to suffer more inconvenience than others. (H. A. Smith's Principles of Equity, 653.)

In the case of public nuisances, properly so called, an indictment or a criminal information lies, or in some small cases summary proceedings before magistrates may be taken to abate them and punish the offenders. A civil action (formerly called information in equity) also lies in the Chancery Division for an injunction, with or without joining a claim for damages, to redress the grievance, when the Attorney-General is made a party as representing the public. In cases of private nuisance the usual course would be now to commence an action in the Queen's Bench Division for damages, together with a claim for an injunction, which will be granted at the trial if the injury is such as is at all likely to be continued by the defendant. If the defendant threatens to continue the nuisance after service of the writ, the plaintiff should give notice of motion for an interlocutory injunction, which the Court will in most cases grant where there is shown a primâ facie cause of action, and the nuisance is a material one, and the defendant does not undertake to desist until after the trial. (Snell's Equity, 5th ed., 569.)

To obtain an injunction to restrain obstruction to light and air, the plaintiff must prove (1) his title to the light and air, either by grant or prescription; (2) a material interference to his rights by the defendant; (3) that he has not been guilty of any unaccountable delay so as to amount to acquiescence on his part; (4) that damages alone will not afford him adequate relief under the circumstances. (Underhill on Torts, 186; Goddard on Easements, 2nd ed., 299.) There is no right ex jure naturæ to the free passage of light and air to a house or building.

PARTITION.

162. What is the procedure of the Court in order to effect a partition, and what extension of powers with regard to this subject has been afforded by recent statutes?

An action is commenced by one of several joint tenants or