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SECTION IV.

LAW CASES.*

(768.)

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LQUEEN'S BENCH DIVISION.]
COOK, APPELLANT ; HAINSWORTH, RESPONDENT.

[MAY 15TH, 18TH, AND 1914.] Bye-law Borough - Approval of Plans by Corporation Right of Appeal to Quarter Sessions-—Reasonableness— Validity of Bye-law.

By a bye-law of the borongh of L., made under the authority of certain local Acts, all plans of new buildings had to be submitted to the corporation, and in case the proposed buildings were proceeded with without submitting plans or without such approval or contrary to the plans approved, the builder was liable to a penalty. By another bye-law the approval or disapproval of the corporation was to be given within twenty-one days, and by a local Act there was an appeal to quarter sessions from a refusal to approve. By another local Act the corporation were entitled to prohibit the erection of new buildings until the plans of them were approved.

Held, that, having regard to the right of appeal to quarter sessions and to the special legislation affecting the case, the bye-law imposing the penalty was not unreasonable and was valid.

Approval of plans may be refused, not merely because the proposed buildings contravene the bye-laws, but because they contravene the special or general legislation applicable to them.-(L. T., Q. B. (1896), vol. Ixxv., 51.)

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This Section is intended primarily as a clue oniy to Reported Cases.

(769.)
[QUEEN'S BENCH DIVISION.]
WESTERN v. BAILEY AND ANOTHER.

APRIL 30TH, MAY 1ST, AND JUNE 6TH.]
Copyhold - HeriotsHeriot Serrice Whether Heriot Service applies

to Copyholds-Eridence-Right of Action for Selling Heriots.

A heriot may be due by heriot service in respect of a copphold tenement as well as of a freehold tenement of the manor.

An action lies at the suit of the lord of the manor for wrongfully selling a beast to wuich he is entitled as a heriot.

Mere statements by the homage that a particular copyhold is heriotable, or that a heriot has been seized in respect of it, are not, in the case of a tenement, alleged to be held by heriot service, any evidence of the facts alleged, though they would be evidence to prove a custom to take a heriot by heriot custom.-(L. T., Q. B. (1896), vol. lxxv., 210.)

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(770.)
THE KENT COUNTY COUNCIL, APPELLANTS ; v.

LORD GERARD, RESPONDENT.

[JUNE 9TH AND 10TH, 1896.) Ilighways— Extraordinary Traffic-Person ordering Materials for

works—Person by whose order the Traffic has been conductedHighways and Locomotives (Amendment) dct 1878 (41 & 42 Vict. c. 77), 8. 23.

The respondent, who was the owner of a mansion-house and park, undertook building operations at his mansion-house on a large scale. Part of the work was done by contractors and part by the respondent himself. The materials for the work done by the respondent were supplied in this way : samples were submitted to the respondent, and when a sample was approved of, the price was fixed, which in every case included delivery at the works, and orders were given on behalf of the respondent for the delivery of the materials as required. In no case was any contract entered into for the supply of any material, and the respondent was not bound to take any such materials, nor had he any control over the carriage of the materials, but he knew that they would be delivered by traction engines, and in fact they were so delivered. Extraordinary expenses for the repair of the road having been incurred in consequence of such traffic. Held, that the respondent was the “person hy whose order such traffic

“ was conducted” over the road, and that he was liable for such expenses. -(L, T. (1896), vol. Ixxv., p. 247.)

(771.)

PEARCE (APPELLANT) v. BUNTING (RESPONDENT).
THE QUEEN r. WEDD AND ANOTHER, JUSTICES.

Ex parte PEARCE.

(JUNE 16TH AND 17TH, 1896.]

Thames-ConservatorsRight to take Sand-Rights of Owner of Shore

_Bed-“ Shore—Thames Conservancy Act, 1894 (57 f58 Vict. c. clxxxvii.), ss. 3, 87.

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Section 87 of the Thames Conservancy Act, 1894, makes it unlawful for any person other than the conservators, their agents, &c., to dredge or raise sand from the bed of the Thames, except with the licence of the conservators. The appellant raised sand, without such licence, from a place between high and low water-mark of the Thames, within the district of the conservators. He claimed to take the sand under a licence from a lessee, holding under a lease, which demised the right to take sand from the place in question :

Held, that the place was part of the “shore” of the river, within the meaning of Section 3, not of the “bed,” within the meaning of Section 87, that the Act did not interfere with the right of the lessee to license the appellant to take sand, and therefore the appellant could not be convicted of an offence against the Act.-(L. R. (1896), 2 Q. B., vol. ii., p. 360.)

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(772.)
BATES r. DONALDSON.

[JUNE 11TH AND 20TH.] Landlord and Tenant-Lease— Forfeiturc— Covenant not to assign

without licence- Licence not to be unreasonably withheld. The plaintiff was the assignee of the reversion of the lease of a house for fourteen years, expiring in 1902, which contained a covenant not to assign without a licence which was not to be unreasonably withheld in the case of a respectable and responsible person,” and also a proviso for re-entry on breach of covenant. The plaintiff bad bought the reversion for the purpose of providing a residence for his wife and grandchildren after his death, and was very desirous of getting immediate possession. The lessee wished to sell his interest for £100. The plaintiff was willing to pay that sum. The lessee agreed to sell to the defendant for that sum, and applied to the plaintiff for a licence to assign. The defendant was a respectable and responsib'e person, and did not intend to use the house in any manner to which objection could be made. The plaintiff refused his

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licence because he wished to obtain a surrender to himself. He was always willing to pay the lessee £400, but he did not offer that or any sum when he refused his licence, or at any time before the trial. The lease was assigned to the defendant, who entered into possession. The plaintiff sued to recover possession of the house upon the ground that the lease was forfeited by the assignment without licence.

Held (affirming the judgment of Mathew, J.), that the licence bad been unreasonably withheld, and that a forfeiture had not been incurred. -(L. T., C. A. (1896), vol. Ixxiv., p. 751.)

(773.) WHITWHAM v. WESTMINSTER BRYMBO COAL AND COKE

COMPANY.

[JUNE 24TH, 1896.) Damages-Injury to Land— Trespass by tipping Spoil— Measure of

Damages.

(For a previous stage of this case, see pp. 88 ante.) The defendants having trespassed on the plaintiffs' land by tipping spoil thereon from their colliery :

Held (affirming the decision of Chitty, J.), that the amount of damages was not to be assessed by ascertaining merely the diminution in value of the plaintiffs' land, but that the principle of the way-leave cases (Martin v. Porter, 5 M. & W. 351; Jegon v. Vivian, L. R. 6 Ch. 742; and Phillips v. Homfray, L. R. 6 Ch. 770) applied : namely, that if one person without leave of another uses the other's land for his own purposes he ought to pay for such user; and that therefore, as to so much of the land as was covered with spoil, the value of the land for the purpose for which it was used by the wrongdoers ought to be taken into account ; and that as to the rest of the land the measure of damages was the diminution of the value thereof to the plaintiffs by reason of the wrongful acts of the defendants.—(L. R. (1896], 2 Q. B., vol. ii. p. 538.)

(774.) (IN THE COURT OF APPEAL.] THE QUEEN v. VESTRY OF ST. MATTHEW, BETHNAL

GREEN.

[JULY 14TH, 1896.] Metropolis - Management ActsSever-Drain--Liability to Repair

Sewer made without Approval of Metropolitan Board of Works or
of Vestry-Metropolis Management Act, 1855 (18 f. 19 Vict. c.
120), 88. 68, 69, 250Metropolis Management Amendment Act,
1862 (25 : 26 Vict. c. 102), 88. 47, 48, 61.
(For a previous stage of this case, see pp. 107, 108 ante.)

JUDGMENT. Lord ESHER, M. R.—This case raises a question of fact as well as one of law. The first question is what inference we ought to draw from the facts we know with regard to this contrivance, as I will call it for the sake of using a neutral term, for carrying off the sewage of these houses. I do not think that, when they are looked at, they afford much room for the argument that we ought to assume that the person who laid it down did it lawfully rather than that he did it unlawfully. It appears to me that to make such an assumption would be contrary to the truth of the matter. I should say that it was more probable that the person who laid it down did it unlawfully than he did it lawfully. So far as I am concerned, I have no doubt that in truth he made this contrivance for carrying off the sewage from these houses without asking the leave or getting the approval of anybody. That being the inference of fact to be drawn, a question of law arises which depends upon the construction of the provisions of the Metropolis Management Acts to which we have been referred. The first provision to which we must look to determine whether this contrivance is a “ drain"

is the 250th section of the Metropolis Management Act, 1855. By that section it is provided that the word “ drain " shall mean and include “ any drain of and used for the drainage of one building only, or premises within the same cartilage,” and shall also include “ any drain for draining any group or block of houses by a combined operation under the order of any vestry or district board,” and that the word “ sewer" shall mean and include “sewers and drains of every description except drains to which the word • drain’interpreted as aforesaid applies.” Therefore, if this pipe, being a contrivance for the removal of sewage, is not a drain within the meaning of the section, it must be a sewer. It is not possible that it should be neither the one nor the other. It was made for the drainage of more than one house, and therefore primâ facie does not come within the definition of a drain. But it is said that it comes within that definition as being a drain for draining a block of houses by a combined operation under an order of the vestry. But that, again, depends on the question of fact whether there was such an order. No minute or other evidence, documentary or otherwise, of the existence of such an order is forthcoming; and, if there had

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