Union. 1908. governed the home. The site of it at Maghull was chosen so as to permit the patients to have the benefits of hospital treatment in com- Ormskirk Union bination with healthy outdoor life, regular habits, suitable employment, v. Chorlton and recreation. There was a staff of physicians, surgeons, matrons, and nurses attached to the home, and the patients were divided into three classes, their weekly payments varying according to their class. Coxon was in the third class. The Ormskirk Union contended that the home was a hospital within the meaning of section 1 of the Poor Removal Act, 1846, and that during the time that Coxon resided there he was confined as a patient in a hospital. The question for the Court was whether or not Coxon had acquired a legal settlement in the township of Maghull under the Poor Removal Act, 1846, s. 1, and the Divided Parishes and Poor Law Amendment Act, 1876, s. 34, by reason of his continuous residence for three consecutive years and upwards in the home. If the Court should be of opinion in the affirmative the order of the justices was to stand, otherwise it was to be quashed. Section of the Poor Removal Act, 1846 (9 & 10 Vict. c. 66) provides that: "No person shall be removed, nor shall any warrant be granted for the removal of any person, from any parish in which such person shall have resided for five years [now one year: see 24 & 25 Vict. c. 55, s. 1; 27 & 28 Vict. c. 79, s. 8] next before the application for the warrant: Provided always, that the time during which such person shall be a prisoner in a prison, or shall be serving Her Majesty as a soldier, marine, or sailor, or reside as in-pensioner in Greenwich or Chelsea hospitals, or shall be confined in a lunatic asylum, or house duly licensed or hospital registered for the reception of lunatics, or as a patient in a hospital . . . shall for all purposes be excluded in the computation of time hereinbefore mentioned." Section 34 of the Divided Parishes and Poor Law Amendment Act, 1876 (39 & 40 Vict. c. 61), provides that: "Where any person shall have resided for the term of three years in any parish, in such manner and under such circumstances in each of such years, as would in accordance with the several statutes in that behalf render him irremovable, he shall be deemed to be settled therein until he shall acquire a settlement in some other parish by a like residence or otherwise . . . .” The Divisional Court (Lord Alverstone C.J., Wills and Channell JJ.) held that during his residence in the home Coxon was confined as a patient in a hospital within the meaning of the proviso to section I of the Poor Removal Act, 1846, and no sufficient reasons had been given to justify his removal to the Ormskirk Union. The order of the justices was therefore quashed. The Chorlton Union appealed. 1903. Ormskirk Union v. Chorlton Union. R. Cunningham Glen and A. Moresby White for the appellants. In order to quash this order the Court ought to have found that there were no facts which warranted the justices in holding in accordance with reason that a settlement had been acquired by Coxon: Holborn Union v. Chertsey Union (1885) 15 Q. B. D. 76; 54 L. J. M. C. 137. The home is not a hospital" within the proviso to section 1 of the Poor Removal Act, 1846. The word is used there in connection with prisons, barracks, and lunatic asylums, places of an undoubtedly public nature, and that points to a public hospital having been intended. The question what is a public hospital was discussed but not decided in Horner v. Lewis (1898) 67 L. J. Q. B. 524. A private home like this, where the patients pay, cannot be said to be a public hospital. Then the character of Coxon's residence was not such as seems to have been contemplated by the Act. The section may not mean that a man must be necessarily compulsorily confined in a hospital to come within it: St. Olave's Union v. Canterbury Union, 1897, 1 Q. B. 682; 66 L. J. Q. B. 471, still the section does not seem applicable to a place like this, where a man goes voluntarily and stays as long as he pleases. Coxon was not insane. If he had been he could not have been received into the home, neither under its rules nor under the Lunacy Act, the house not being a licensed house under the Act. He was under no incapacity except the epilepsy. The word "reside" is used in the section in connection with places like Greenwich Hospital, where a man would go of his own will and for the purpose of residence only. The time of residence in a retreat for drunkards under the Habitual Drunkards Act, 1879 (42 & 43 Vict. c. 19), is by section 32 expressly brought within the proviso in section 1 of the Poor Removal Act, 1846, which shows that the Legislature did not regard those retreats as hospitals within the section. A home like this is still less a hospital of the kind contemplated. Macmorran, K.C., and Clavell Salter for the Ormskirk Union were not called upon. VAUGHAN WILLIAMS L.J. Everything has been said in this case that could be said, but I think that the decision of the Divisional Court is quite right. The question turns upon section 1 of the Poor Removal Act, 1846, and what we have to decide is whether this man Coxon has been residing in a hospital in such a way that his residence there comes within the proviso in that section-that is to say, whether the time of his residence must be excluded in the computation of time for the purpose of acquiring a status of irre Union. 1903. movability. It has been put in two ways: in the Court below it was put entirely on the question of the character of the house. In Ormskirk Union this Court, although that point was made, the question was also put v. Chorlton as depending on the character of the residence of Coxon in that house. I do not think that it is necessary for us to define exactly what is or what is not a hospital within the section, but I have no doubt that this home is a hospital within it. It is true that it is called a “home," but it is a house in the country into which epileptic patients are taken for the express purpose of giving them medical treatment that is to say, medical treatment combined with such outdoor life as would be likely to make the treatment effective. I cannot conceive why such an establishment is not a hospital. I could have understood the argument that no person who is in an institution where he pays is in a hospital, but it seems to me impossible to hold that after the decision in Horner v. Lewis (1898) 67 L. J. Q. B. 524. I could also have understood the argument that no one is confined in a hospital within the section unless he is confined there against his will, but after the decision in St. Olave's Union v. Canterbury Union, 1897, 1 Q. B. 682; 66 L. J. Q. B. 471, it is impossible to hold that. I think, therefore, that the Divisional Court were right in saying that this was a hospital within the meaning of the proviso. Then it was said that, taking the facts in this case, the proper conclusion is that Coxon was not in the home as a patient, he was not there to be treated for the disease of epilepsy, but because, being an epileptic, he found it a convenient place of residence. I think that, on the facts in this special case, it is impossible to come to that conclusion. It seems to me that he was in the home the whole time as a patient. The appeal must be dismissed. ROMER L.J. I am of the same opinion, and I have nothing to add to what has been said by my Lord. STIRLING L.J. I agree. Appeal dismissed. Solicitors for Ormskirk Union-Rowcliffes, Rawle, & Co, for Alfred Dickinson, Ormskirk. Solicitors for Chorlton Union- Gibson and Weldon, for J. H. Wilde, Manchester. 1903. May 6, July 25. Supreme Court of Judicature. COURT OF APPEAL (No. 2). BOYCE U. PADDINGTON BOROUGH AND ABBOTT. Open space-Disused burial ground-Erection of hoarding to prevent acquisition of easement-Action by owner of adjoining property to restrain erection-Joining Attorney-General —“ Buildings”— Metropolitan Open Spaces Act, 1881 (44 & 45 Vict. c. 84), s. 5— Disused Burial Grounds Act, 1884 (47 & 48 Vict. c. 72), s. 8-Open Spaces Act, 1887 (50 & 51 Vict. c. 32), s. 4. Under the provisions of the Metropolitan Open Spaces Act, 1881, and the Open Spaces Act, 1887, and by virtue of an agreement with the vicar of the parish, and a faculty granted by the Bishop of London, the council of the defendant borough had the management and control of a disused burial ground. The plaintiff, the owner of land adjoining this ground, had erected blocks of flats on his land. The council threatened to erect a hoarding on the burial ground to prevent the plaintiff from acquiring a right to right over it. Held, that under section 5 of the Metropolitan Open Spaces Act, 1881, the duty of the council was to hold and administer the burial ground for strictly limited purposes, viz., in trust to allow the enjoy ment of it by the public in an open condition; that the erection of the hoarding was not in accordance with those purposes, and the council must be restrained from erecting it. Decision of Buckley J., 1 L. G. R. 98; 1903, 1 Ch. 109; 72 L. J. Ch. 28 reversed. Semble, the Attorney-General should be joined as a plaintiff in an action to restrain a local authority from using a disused burial ground for a purpose not authorised by the Acts. APPEAL from a decision of Buckley J. The plaintiff was the owner in possession of leasehold land abutting on the churchyard attached to St. Mary's Church, Paddington. The churchyard was an open space within the Metropolitan Open Spaces Act, 1881, and the Open Spaces Act, 1887, and a disused burial ground within the Disused Burial Grounds Act, 1884. The soil of it was vested in the defendant Abbott as vicar of the parish. Under a deed, dated April 26, 1892, made between the defendant Abbott and the Paddington Vestry, the predecessors of the Borough Council, and a faculty granted by the Bishop of London, the Borough Council had the entire management and control of the churchyard, subject to the provisions of the above mentioned Acts of 1881 and 1887. The plaintiff had erected blocks of flats on his land adjoining the churchyard. The Borough Council threatened to erect a screen in the 1903. churchyard in front of the windows of his building so as to prevent him from acquiring rights of light or air over the churchyard. The Boyce v. defendant Abbott was a member of the Council, but he did not as vicar take any part in this threat. The plaintiff brought this action to restrain the erection of any screen as proposed. He alleged that the screen, if erected, would materially interfere with the access of light to his premises, and with the reasonable and comfortable enjoyment of the premises by him and his tenants. The defendant Council, by their defence, alleged that the proposed screen was not a building within the meaning of the Open Spaces Acts; that the erection thereof would not interfere with the enjoyment by the public of the churchyard as an open space within the meaning of those Acts; that the plaintiff was not entitled to the access of light over the churchyard to the windows of his premises; and that in erecting the screen they would only be acting in the performance of a public duty to prevent the plaintiff from acquiring rights of light and air which would diminish or injuriously affect the enjoyment by the public of the churchyard as an open space. Section 1 of the Metropolitan Open Spaces Act, 1877 (40 & 41 Vict. c. 35), empowered the Metropolitan Board of Works to acquire open spaces, to be held "in trust for the perpetual use thereof by the public for exercise and recreation." By section 4 of the Metropolitan Open Spaces Act, 1881 (44 & 45 Vict. c. 34), power is given to transfer any churchyard within the Metropolis, closed for burials, or the control of it, to the local authority "for the purpose of giving the public access thereto and "preserving the same as an open space accessible to the public"; and by section 5 the local authority may take and hold, or acquire an interest in any open space, churchyard, cemetery, or burial ground, and undertake the management thereof; and shall hold and administer it" in trust to allow, and with a view to, the enjoyment by the public of such open space, churchyard, cemetery, or burial ground in an open condition, free from buildings and under proper control and regulation, and for no other purpose," and power is given to enclose or keep the same enclosed with proper railings and gates." Under section 3 of the Disused Burial Grounds Act, 1884 (47 & 48 Vict. c. 72), "it shall not be lawful to erect any buildings upon any disused burial ground, except for the purpose of enlarging a church, chapel, meeting-house, or other places of worship." Section 4 of the Open Spaces Act, 1887 (50 & 51 Vict. c. 32), provides that "in the Disused Burial Grounds Act, 1884. . . . the expression building' shall include any temporary or moveable building." The plaintiff's contention was that what the defendant Council Paddington |