dent on Tinkler v. The Wandsworth District Board of Works (a), which is, however, very distinguishable. There the Board of Works for the Wandsworth District stated that it was their intention to do away with all privies within the district, and insisted on their being converted into waterclosets; and it was held that in this they exceeded their powers. In many cases, as for instance that of a single house in an open district, with an old woman the only inhabitant of the house, it would be absurd to contend that the construction of a watercloset was necessary. But it is otherwise in a crowded court with one privy for every two houses. (He was then stopped.) Beasley, contrà. The words of the 85th section, "if any drain, watercloset, privy, or cesspool appear to be in bad order and condition, or to require cleansing, alteration, or amendment, or to be filled up &c.," must be construed "reddendo singula singulis." The alternative given to the vestry or district board is to construct a waterclóset or a privy according to the class of house -they have no power to compel the owner of a small house to incur the expence of a watercloset, unless a privy would be insufficient, and that fact is not found here. The imposing such an expence on the owner of a small house would, in many cases, render it valueless ; for the trifling rent that could be obtained for it would cease to be any compensation to the landlord. Tinkler v. The Wandsworth District Board of Works (a) is expressly in point. [Wightman J. In that case there was a general order to abolish all privies within the district; and Lord Justice Turner, p. 349, expressly alludes to that circumstance.] He declines to decide (a) 27 L. J. Chan. 342. Also reported, 2 De Gex & Jones, 261. 1862. Vestry of ST. LUKE'S v. LEWIS. 1862. Vestry of ST. LUKE'S V. LEWIS. the present question; but Lord Justice Knight Bruce puts the case on the broader ground. At p. 346 he says, "Remarkable as some of the provisions of that statute (18 & 19 Vict. c. 120.) seem to be, I am of opinion that they do not deal with the rights of property in such a way as the defendants contend that they do; nor can I find in the two statutes (i. e. 19 & 20 Vict. cc. 120, 121) any warrant &c. for what the defendants have been attempting and now insist upon. The question is, not whether they have power to cause or order privies within their district to be put in a proper and decent state, if not in that state; but it is, whether they have the right or power to force on the plaintiff the mechanical contrivance of waterclosets, with their requisite apparatus, for which he is to find water supply as best he may, instead of the privies (sufficient as privies if kept in a condition proper for such conveniences are,) which are upon his land for the purposes of his cottages there. The claim of the defendants in that respect appears to me manifestly groundless." That judgment also seems to shew that the vestry here have attempted, under colour of this statute, to do what could only be done by justices of the peace under the "Nuisances Removal Act," 19 & 20 Vict. c. 121. Bovill was not called on to reply. COCKBURN C. J. I am of opinion that the decision of the magistrate in this case was erroneous. The question submitted to us is, if sect. 81 of this Act authorizes the vestry or district board, where a house has an insufficient privy, to direct that a watercloset shall be constructed in its stead. The whole question turns on these words in that section: "If at any time it appear to the vestry or district board &c. that any house &c. is without a sufficient watercloset or privy and ashpit furnished with proper doors and coverings, and with other apparatus and works as aforesaid, the vestry or district board shall, in case the same can be provided without disturbing any building, give notice in writing to the owner or occupier of such house, requiring him forthwith, or within such reasonable time as shall be specified in such notice, to provide a sufficient watercloset or privy and ashpit so furnished as aforesaid, or either of them, as the case may require; and if such notice be not complied with, it shall be lawful for the vestry or district board to cause to be constructed a sufficient watercloset or privy and ashpit, or either of them, or do such other works as the case may require, and to recover the expences incurred by them in so doing from the owner of such house in manner hereinafter provided." On the part of the vestry it is urged that they were right in holding that the privies attached to these houses were insufficient: while the contention of the respondent is, that although the vestry might have directed him to alter those privies so as to make them sufficient, they could not order waterclosets to be put up in place of them. I do not see that such is the necessary effect of the language of the Act: quite the contrary. Power is given to the vestry &c. to cause to be constructed a sufficient watercloset or privy, "or either of them;" which last words seem very strong to shew that if the fact is once established that there is an insufficient privy, they are to have authority to order a watercloset or privy in the alternative. Under particular circumstances, neither 1862. Vestry of ST. LUKE'S V. LEWIS. a new privy could be constructed nor an old one altered so as to meet the necessity of the case. An existing privy might be so crowded that it would be impossible to keep it clear of an accumulation of filth, which might cause disease; so that the only remedy would be by introducing water to carry the filth into the sewers, and so get rid of it. It is right that the authorities appointed by the legislature to attend to the sanitary condition of the parish or district should have the power to do this, and I think the Act has given it to them. In Tinkler v. The Wandsworth District Board of Works (a), the board came to the determination that all privies in the district should be converted into waterclosets. WIGHTMAN J. I am of the same opinion. If the authorities of this parish have power to order the conversion of a privy into a watercloset, the circumstances stated in the case relative to the condition of these privies fully justify their doing so in the present instance. The words of the Act appear completely to warrant them in what they have done, for it says they may act as the case may require;" they may (6 cause to be constructed a sufficient watercloset or privy, or either of them." As to Tinkler v. The Wandsworth District Board of Works (a), on which reliance has been placed by the respondent, there is an obvious distinction between it and the present case: for there the defendants had declared their intention to do away with all privies within the district, whether sufficient or not. (a) 27 L. J. Chan. 342. Also reported, 2 De Gex & Jones, 261. CROMPTON J. I am of the same opinion. Those last words "or either of them" appear to me quite clear, and to remove all doubt. It is no answer for the respondent to say that there is another remedy in certain cases where a watercloset or privy becomes a nuisance to the neighbourhood. Judgment for the appellants. 1862. Vestry of ST. LUKE'S V. LEWIS. BEHN against BURNESS. By memorandum of charter-party, dated London, it was agreed between A. B., therein described as "owner of the good ship or vessel called the M., of 420 tons or thereabouts, now in the port of Amsterdam," and C. D., that the said ship, being tight, staunch, strong, and every way fitted and ready for the voyage, should "with all possible despatch proceed direct to N. &c." In an action by the shipowner against the charterer for not loading the agreed cargo: Held; per Cockburn C. J., Crompton and Mellor JJ., dissentiente Wightman J.; that the words "now in the port of Amsterdam," did not amount to a warranty, or constitute a condition precedent to the contract, that the ship was there at the time of making the memorandum of charter-party. THE declaration alleged that the plaintiff and the defendant agreed by charter-party that the plaintiff's ship called The Martaban, then in the port of Amsterdam, and being tight, staunch, strong and every way fitted and ready for the voyage, should, with all possible dispatch, proceed direct to Newport, Monmouthshire, and that the defendant should there load her with a full cargo of coals, which she should carry to Hong Kong, and there deliver in consideration of freight, to be paid after the rate of sixty shillings sterling for every ton of twenty hundred weight of coals so delivered, and at the times and in the manner following: that is to say, one third by charterer's acceptance at three months date from the final sailing of the vessel, or at the owner's Tuesday, Charter-party. Warranty. Position of ship. |