ticulars must be given by the builder to the district surveyor appointed under the Act: and s. 6 exempts from the operation of this part of the Act any building belonging to a canal company, "and used for the purposes of" the canal under the provisions of any Act of Parliament.

A canal company under their statutory powers put up a building upon one of their wharves, the wharf and the building being let by the company to an institution for distributing firewood. The building was used by the tenants as a place in which to chop up firewood. The company were not a carrying company, but took tolls for the passage of barges along their canal, and it was agreed between themselves and their tenants that all the wood required by the latter should be brought to the wharf and building in their barges along the company's canal:

Held, that the building was not "used for the purposes of the canal" within the meaning of s. 6 of the Metropolitan Building Act, 1855, and therefore that the notice required by s. 38 ought to have been given.-(L. R. [1893] 2 Q. B., p. 44.)

(507.)

LONDON AND WESTMINSTER LOAN AND DISCOUNT COMPANY v. LONDON AND NORTH WESTERN RAILWAY COMPANY.

[MAY 8TH, 1893.]

Landlord and Tenant—Distress—Rent payable in Advance if Required -Requirement during Currency of Quarter-Reasonable Notice.

The defendants let a house to a tenant upon a yearly tenancy under an agreement whereby the rent was reserved "payable quarterly "on the usual quarter days, and always if required in advance." The tenant granted a bill of sale of his goods in the house to the plaintiffs, who, upon default in payment of the amount secured by the bill of sale, took possession of the goods and fixed a day for their sale. On the morning of the sale, which occurred in the middle of a quarter, the defendants demanded of the tenant, under threat of immediate distress, the rent for the current quarter in advance. The plaintiffs, to prevent the sale from being interrupted, paid the rent under protest, and then brought an action to recover it back :—

Held, that under the above agreement the defendants were entitled to demand the quarter's rent in advance at any time during the currency of the quarter, that in the event of non-payment upon such demand they would under the circumstances of the case have been entitled to distrain immediately, and that consequently the money paid by the plaintiffs could not be recovered back.-(L. R. [1893] 2 Q. B., p. 49.)

(508.)

STEWART . WRIGHT.

[MAY 30TH, 1893.]

Nuisance-What amounts to--Dangerous fence adjoining footwayBarbed wire.

This was an appeal by the defendant from a decision of the County Court Judge of Birkenhead. The defendant, Mr. Albert Tomlinson Wright, is a solicitor. The action was brought by the plaintiff to recover damages from the defendant for injuries caused to his mackintosh coat, which was torn by a barbed wire fence surrounding land abutting on Mill-lane, Liscard, and on which the defendant is tenant, on the 29th of September, 1892. The lane is a public footpath, and is bounded on one side by the barbed wire fence of ordinary barbed wire, which, in consequence of excessive trespass on the land abutting upon the lane, and serious complaints about the annoyance caused by the trespassers made by the inhabitants and occupiers in the neighbourhood, was substituted about five years ago for an ordinary post rail fence. This barbed wire fence is in continuation of a thorn hedge, and is continued for about 140 yards. It is on the level of the roadway, and is strained to posts of the dimensions of 3 in. by 2 in., and 6 ft. high out of the ground, and about three yards apart, the wire being fastened on the field side to rail posts. There are five lines of barbed wire so strained to the posts. There is only the thickness of the posts between these lines of wire and the side of the footpath. On the day of the occurrence the wind was somewhat strong, coming in gusts. The plaintiff was walking alongside of the wire fence on the footpath, and after walking about 60 yards, came to a corner where the footpath, still bounded by the wire fence, turned sharply at a right angle. Here the footpath widened out to a somewhat greater width than its general width of 4 ft. 6 in. Just when turning the corner, a gust of wind blew the plaintiff's mackintosh coat against the fence, and it catching upon one of the barbs was torn to a considerable extent. The plaintiff had regularly used this path once or twice daily for about 17 years. The plaintiff spoke to other occasions—one when he slipped and fell against the wire fence, and the sleeve of his coat was slightly torn, so slightly that he did not think it worth while to make any complaint about it; the other, when his wife swung her hand against the wire, and her glove was then caught by a barb and torn. No negligence or want of skill or care was imputed to the defendant in the erection of the wire fence. The County Court Judge held that the fence as constructed and placed was dangerous to the public using the path and a nuisance, and that the defendant was liable for the damage done to the plaintiff's coat. He gave judgment for the plaintiff for £2 4s. and costs, and from this judgment the defendant now appealed.

Mr. Justice MATHEW said,-The Judge came to a conclusion of fact that this fence was dangerous and a nuisance. The principle is well

illustrated by the authorities that, if there is a structure or excavation adjoining a footway in such a condition that it is liable to do an injury, a person injured has his right of action. Here, fortunately, the injury is slight.

Mr. Justice WRIGHT.-I am of the same opinion.-(T.L.R., Q.B.D., vol. ix., p. 480.)

(509.)

SMITH v. ROBINSON.

[MAY 30TH AND 31ST, AND JUNE 2ND, 1893.]

Landlord and Tenant-Lease-Covenant by Lessee to pay Charge imposed on Lessor in respect of Premises-Order by Sanitary Authority on Lessor to Abate Nuisance-Public Health (London) Act, 1891 (54 & 55 Vict. c. 76.)

A lessee covenanted to pay, bear, and discharge all land-tax, sewers rate, main drainage rate, and all other rates, taxes, assessment charges, or impositions whatsoever, parliamentary, parochial, or otherwise, taxed, charged, assessed, or imposed upon the demised premises, or on the lessor for or in respect of the premises. The lessee also covenanted to repair. The lessee failed to repair, in consequence of which a drain on the premises got out of order, and caused a nuisance. The sanitary authority made an order on the lessor, under the Public Health (London) Act, 1891, directing him to repair the drain. The lessor incurred expenses in complying with this order, and sued the lessee to recover the amount :--

Held, that the expenses so incurred were a charge imposed on the lessor in respect of the premises, and the plaintiff was entitled to recover.-(L. R. (1893) 2 Q. B., p. 53.)

(510.)

PERRY v. CHOTZNER AND ANOTHER.

JUNE 1ST, 1893.]

Landlord and tenant-Covenant to repair-Holes caused by nailsSchedule of dilapidations-Unreasonableness of.

This was an action to recover possession of "The Firs," Byron Hill, Harrow, for alleged breach of covenants by the defendants. The premises in question were let to the defendants' predecessors in title from March 25th, 1873, for a term of 99 years. The lease contained the usual covenants to keep the premises in good repair and to paint the inside every seven years and the outside every five years. On February 27th, 1891, the plaintiff left on the premises a notice in writing specifying the breaches of the said covenants to repair and requiring the

defendants to remedy the said breaches within a reasonable time. The dilapidations consisted chiefly in defective plastering and cracks in the walls and ceilings, also holes in the walls caused by driving in nails. The defendants were asked to do all the repairs which would ordinarily be done at the end of the seven years' period, when the premises would be painted inside. The defendants refused to do the repairs, as they said the schedule of dilapidations was extravagant and excessive. Mr. Justice CAVE, in giving judgment for the defendants, said that because a tenant was required to paint the house every seven years inside he could not be called upon to distemper a wall within the septennial period. He should not hold a house out of repair because a dozen cracks appeared in the plastering which did not interfere with the stability of the structure. It was a monstrous thing to say that because a person put nails into the wall of a house he must take them out and fill up the holes or commit a breach of the covenants of a repairing lease. The object of the action was to annoy the defendants. —(T.L.R., Q.B.D., vol. ix., p. 488.)

·

(511.)

FOSTER v. FRASER.

[JUNE 8TH, 1893.]

Covenant " Building," meaning of―Construction of Covenant.

The question in this case was whether a hoarding was a "building" within the meaning of a covenant against erecting any building. By deed dated February 25th, 1869, William Foale conveyed two plots of ground in Kingston-upon-Hull, forming part of a residential estate, to the defendant Fraser in fee, Fraser covenanting with Foale, his heirs, and assigns to observe certain covenants entered into by Foale when he purchased the property, and therein stated as follows:—“That any "building which shall hereafter be erected upon the said piece or parcel of land secondly herein before described fronting the Spring "Bank aforesaid shall be at least 36 ft. in height from the level of the "said flagged footpath, and shall have a stuccoed or cemented front "and a slated roof; and that any building which shall hereafter be "erected on the said piece or parcel of land firstly herein before "described shall be at least 22 ft. from the level of the said flagged

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footpath; and any buildings thereon which face the east shall have "a stuccoed or cemented front; and any building facing the north "shall be fronted with white stock bricks and have slated roofs; and "such buildings respectively shall be used only as dwelling-houses; " and that no tenements or other outbuildings shall be erected upon “the said pieces or parcels of ground, or any part thereof respectively, "to be occupied as tenements or as courts or squares, or otherwise "separately from the said front messuages or dwelling-houses." In June, 1892, the defendants, the Hull and Grimsby Bill-Posting and Advertising Company (Limited), under a license from the defendant Fraser, erected on his land an immense hoarding of a most substantial

character, supported by struts and outposts, and from 12 ft. to 14 ft. in height, and used it as an advertising station. The plaintiff, the devisee in trust and executor of Foale, who had purchased other residential property adjoining that conveyed to Fraser, alleged that the covenants were intended as a protection to the estate, and complained that this hoarding was an annoyance to himself and his tenants and had depreciated, and would depreciate, the value and amenity of his property and of the estate generally. He accordingly brought this action for alleged breach of the covenants and for an injunction. The action now came on for trial.

Mr. Justice KEKEWICH, after holding that the plaintiff took as assignee of Foale, and as such was entitled to maintain the action, said that this was unquestionably a residential property, and the first question was whether this covenant was originally intended for the benefit of the property. Upon that he had not the slightest doubt. And upon the evidence it was clear that it was prejudicial to the property to have a hoarding covered with advertisements. It was one of those things which were not agreeable to residential property, and, in his opinion, the covenant was reasonable as a protection to residents in the neighbourhood. So far he was in the plaintiff's favour. Then the remaining question was, Was this hoarding a building" within the meaning of this covenant? That was not at all an easy question to determine, and for this reason. The covenant was not expressed in language as full as one could wish, and no doubt the construction was rendered a little more difficult, as it did not show the protection which it was intended to effect. It was not stated what were the purposes for which the covenant was put in; it was put in without any introduction or explanation. The grantee might turn the land into a market garden or anything else. As long as he did not put up a building he might use it for any purpose whatever. There was no express covenant to build anything, but what the covenant said was this "If you do build, the building shall be of a certain kind." Looking at the terms of the covenant, they were not applicable to a hoarding at all. The words did not point to anything of the kind, and accordingly his Lordship held that such a hoarding as that in question was not a "building " within the covenant. The defence, therefore, succeeded, and there must be judgment for the defendants, with costs. -(T.L.R., Ch. D., vol. ix., p. 502.)

(512.)

THE MAYOR OF FOLKESTONE v. BROOKS.

[JUNE 9TH, 1893.]

Local government-Streets-Recovery of expenses-Paving and metalling -Liability of owner- —Objections—Public Health Act, 1875 (38 & 39 Vict., c. 55), secs. 150 and 257.

Decision of Wright, J. (ante, p. 377), reversed.

On appeal the Court held that the corporation had treated the plaintiff's notice as a notice of objection to the apportionment and