C. B.] POLLON AND WIFE . BREWER.-GREEN v. MACNAMARA AND OTHERS. not being at home), and asked the son for the churchrate; the son asked him if he had got the rate; he replied, No, here is my authority," showing the receiptbook which had been handed to him by the churchwarden for the purpose of collecting the rate. The son thereupon refused to pay, handing him a written paper stating the grounds of his refusal, and it was proved before the justices that the son refused to pay by the authority of his father. Prideaux showed cause.-There was no sufficient refusal within the 53 Geo. 3, c. 127, s. 7, which gives the justices jurisdiction to make the order "if any one duly rated shall refuse or neglect to pay the same." The demand should have been made on the ratepayer. Again, no amount was demanded: (Reg. v. Justices of Shrewsbury, 31 L. T. Rep. 114; Hurrell v. Wink, 8 Taunt. 369.) If the demand was insufficient, the refusal was insufficient. A. Wills, in support of the rule, was not called upon. By the COURT.-There is no authority for saying that the demand should be made personally on the ratepayer. Here the refusal was by the authority of the father, and it was such as prevented the clerk from making any further demand. Rule absolute. COURT OF COMMON BENCH. Reported by DANIEL THOMAS EVANS and R. VAUGHAN WILLIAMS, Esqrs., Barristers-at-Law. Thursday, Nov. 3. POLLON AND WIFE v. BREWER. A tenancy at will may be det rmined by the landlord | [C. B. plaintiff at the utmost had a tenancy at will; while it existed the landlord sent to ask for the keys, and called upon him to give up possession. I think either of those things sufficient to determine a tenancy at will. And I also think that the landlord coming to take possession eo instanti determines the tenancy at will. I think therefore there is abundant evidence of the determination of the tenancy. WILLIAMS, J.-I am of the same opinion. It is said that the sending for the keys would not do, because accompanied by a denial that there was any tenancy at all. I think the true construction of that is, "I deny that there is any tenancy at all; but if there is a tenancy at will I determine it." CROWDER and BYLES, JJ. concurred. Rule absolute to reduce the damages to 31. Saturday, Nov. 5. GREEN v. MACNAMARA AND others. Master and servant-Wilful act of the latter. A master is not liable for the wilful act of his servant done contrary to his orders. The declaration in this case charged the defendants with combining together by a variety of acts to injure the plaintiff's trade as an omnibus proprietor: verdict against Price one of the defendants, and for the other defendants. At the trial Price was shown to have actively interfered and to have done many acts within the terms of the declaration. It was not shown that the other defendants interfered, and at the trial they denied that they knew of the acts complained of, and they said also that they gave orders that such acts should not be done. It appeared that whenever an omnibus of the plaintiff started, two or more omnibuses of the defendants immediately started, and, as far as they could, surrounded the omnibus of the plaintiff and prevented passengers from entering it; one of the methods of doing which was for the omnibus of the defendants to drive up with the pole close to the door of the plaintiff's omnibus. It was urged at the trial that the other defendants as well as Price were liable for the acts of their servants. Erle, C.J., who tried the case, directed the jury that, upon the facts proved, the defendants, who knew nothing of the acts done, and gave orders that they should not be done, were not liable. Knowles, Q.C. now moved for a new trial, on the ground of misdirection. In this case the act done is the result of the employment, and was done for the benefit of the employers. There is some difference between the case of a private person and a public body such as the company represented by the defendants. My telling my servant not to drive on the wrong side of the road will not exempt me from liability if he does it. [ERLE, C.J.-I think I put the distinction between the case where a servant so commanded drives negligently, and where he wilfully, out of spite, drives against another person's carriage. The acts proved at the trial were the wilful acts of the Macnamara now showed cause.-It is intended to servants of the defendants, contrary to their express question the authority of Newton v. Harland, 1 M. & orders.] "Polling" an omnibus is a wilful act no Gr. 644. The majority of this court there held that, doubt, but it is also a negligent act. It is a negligent if a person hold over after a notice to quit, the land- mode of doing the work, and is done for the benefit of lord cannot expel him by force, manu forti. [WILLIAMS, the masters. [WILLIAMS, J.-How far will you carry J.-I don't think the point in Newton v. Harland was this? Suppose a coachman, zealous for his master, raised at the trial. I was expecting it would be raised, strikes another coachman with his whip, would the and alluded to the case myself, because I know that a master be liable?] That is clearly an illegal act. great part of the profession thought that Coltman, J., WILLIAMS, J.-I am of opinion that there should be who differed from the majority of the court, was right. I no rule. I can find no fault with the direction of my did not reserve the point; but, if you say that in conse-Lord. The law is laid down exactly as it has been quence of what fell from me you considered the point laid down over and over again. to be taken, and were prevented from yourself taking it, I should be sorry to shut you out from it.] I canLot say that. ERLE, C.J.-Then we must dispose of the case as it is, and I think the rule must be made absolute. The CROWDER, J.-I am of the same opinion. These acts were clearly wilful acts done by the men contrary to the orders of their masters. I cannot see how the summing up could have been different. BYLES, J. concurred. Rule refused. C. B.] STEVENS v. GOURLEY. Thursday, Nov. 3. By 18 & 19 Vict. c. 122, schedule 1, “Every building [C. B. and the said sub-contractor was thereupon duly summoned to appear before the said magistrate, according to the said Act; and the said magistrate thereupon duly ordered and commanded the said sub-contractor to comply with the requisitions of the said notice; and the plaintiff or the said sub-contractor, or the said district surveyor, pulled down the said building, the same being necessary for enforcing the requisitions of the said notice, and for bringing the said building and work into conformity with the rules of the said Act. A wooden structure intended to be used as a shop, of a And all conditions precedent, necessary matters and considerable size, ant likely to last a considerable things, were done in that behalf to justify and render time, resting on joists, but having no footings or necessary the pulling down of the said building, and by foundations in masonry, and capable of being lifted | reason of the premises and of the said work and mabodily off the ground by the application of sufficient terials being so done and provided by the plaintiff mechanical power, is a building within the above illegally and contrary to the said statute, the defenstatute, and a contract to erect such a structure dant never derived any benefit or advantage whatever within the limits of the Act is illegal. from the said work or materials, or any part thereof. Declaration-For money payable by the defendant to the plaintiff for work done, and materials provided by the plaintiff for the defendant at his request, and for money found to be due from the defendant to the plaintiff on accounts stated between them. The plaintiff was a builder residing at Castleterrace, Kentish-town. The defendant was a surgeon residing at Wilton-house, Regent's-park. The action was brought to recover the sum of 581. balance of account for work done and materials provided for the defendant at his request. The circumstances under which the claim originated were as follows: "21, Western-terrace, Westbourne-grove west. "To Dr. Gourley. "Dear Sir,-I have just considered and found out a new plan for us to work on in reference to the shop, Bentinck-terrace, which is to build it all in wood; it will be less expensive and answer your purpose just as well, and it will look as well, and then we shall evade the Metropolitan Board of Works, and the district surveyor also. It will last quite long enough for you, and, answer all you require; if you consider it over, and, write me this evening, I will put it in hand at once.-Yours obediently, JOHN STEVENS. "Nov. 6, 1858. Third plea-That the said work was done, and the said materials were provided by the plaintiff, under an illegal contract between the plaintiff and the de- The defendant, Dr. Gourley, being the lessee of a fendant, made after the Metropolitan Building Act house, No. 1, Bentinck-terrace, Regent's-park, desired 1855 came into operation, (to wit) on the 5th Dec. to have a shop erected in the forecourt or garden 1858, for the erection of a certain building within the attached to that house; and consulted the plaintiff limits of the metropolis so defined by the Act passed in about it. Several interviews took place, and the dethe session of Parliament held in the eighteenth and fendant at first wished the building to be a brick one, nineteenth years of her Majesty's reign, intitutled "An but the plaintiff intimated that a brick building would Act for the better local management of the Metro-require a previous application to the Metropolitan polis," which building was a new building within the Board of Works, and occasion considerable delay, and meaning of the said Building Act, and was not within the cost would be upwards of 100.; whereas he would any of the exemptions in the said Act mentioned, put up a wooden one, which would look as well and which building was agreed by and between the plaintiff last as long, and only cost 581., and not require a and the defendant, should be inclosed with walls con-notice to or permission from either the Metropolitan structed of wood, and not of brick, stone, or any other Board of Works or the district surveyor. During the hard or incombustible substance, contrary to the form negotiation the following letters were written by the of the statute in such case made. And the defendant plaintiff to Dr. Gourley :further says, that the plaintiff, before and at the time of making the said contract, was a builder, and that the said contract was entered into by the defendant at the suggestion of the plaintiff, and that the plaintiff, before and at the time of making the said contract, represented to the defendant that the said building might be lawfully erected, and was not contrary to the law. And that the defendant, when he entered into the said contract, believed the said representation, and did not know to the contrary thereof, and entered into the said contract and allowed the said work to be done, and the said materials to be provided, and stated the said accounts, believing the said representation to be true. And that the said work was illegally done, and materials were illegally provided by the plaintiff in and about constructing the said building, within the limits of the metropolis as aforesaid, with such walls as aforesaid, contrary to the said statute. And the said accounts were stated concerning the money claimed by the plaintiff to be due to him from the defendant under the said illegal contract, and for the said work and materials so illegally done and provided, and the money which the plaintiff alleges was found to be due upon the said accounts was the money so claimed; and that after the said work had been so done, and the said materials had been so provided, and the said accounts had been so stated, the district surveyor gave the plaintiff's sub-contractor, then being the builder engaged in erecting the said building, due notice to remove the said work within forty-eight hours, (that is to say) to pull down the said building. And the plaintiff and his said sub-contractor having failed to comply with the said notice, the said district surveyor caused complaint to be made before a magistrate of the police courts of the metropolis, duly authorised in that behalf; a “P.S.—I think 50l. will pay that.-J. S." "Dear Sir,-The plan of building the shop will be facsimile of what you have; the elevation will be just as I show you on the plan. The only difference will be wood instead of brickwork; you would not know the difference in any other way, and the cost of erection will be 55l. I have thoroughly gone into the matter, and therefore assure you it cannot be erected for less.-Yours obediently, "JOHN STEVENS. "Nov. 10, 1858." Previous to these letters an agreement was entered into between the plaintiff and defendant for the erection of a wooden house according to a specification. Although agreed to before the letters were written, it was dated on the 5th Dec., some time after the date of the letters. It was as follows: Specification of works required to be done at No. 1, Bentinck-terrace, Regent's-park, for D. D. Gourley, Esq., M. R. C. S. E. Excavator: To dig out and remove clay to level of pavement, 16 feet back and 14 feet wide, to receive house. Bricklayer: To build 13 | [C. B. three course of footings and sleeper walls, bed all quar- materials. There is no definition in the Act showing tering in mortar. Carpenter: To erect in wood a what is a building, and we must look at the whole Act house, the dimensions to be 16 feet from front to back, to see what is meant by building. The Act. in saving at 13 feet 8 inches frontage; the height to be the walls shall consist of stone or other incombustible feet frontage and 9 feet from floor to material, by implication says they shall not consist of floor. To be built of quartering 3×2, and weather-anything else. They cited The Gaslight Company boarded on outside, also to be match-boarded all over v. Turner. 6 Bing. N.C.; and Beasley v. Bignold, 5 the inside. Ground-floor joists to be 4 by 2 on B. & Ald. 335. sleepers 2×3 with 3-inch yellow deal flooring, properly laid; also to put ceiling joists 3 × 2, rough boarded on top and match-boarded under, with one skylight in roof, the whole of the roof to be covered with zine, with proper fall for water, the front to be made with two sashes, with door in centre, with all pilasters, mouldings, &c., as shown on plan, with 14inch bead and butt shutters, stall-boards, &c., complete, on cross partition, to be framed in 14-inch yellow deal, with glass in upper part, with 14-inch framed door in centre, and leave all perfect. Zine work: To cover the whole of the roof with No. 9 zinc, properly solder all joints, eaves, &c. Smith: To provide all cocks, bars, nails, screws, &c. necessary for the com-called indifferently, pletion of the aforesaid works. Painter: To paint the whole of the works in three oils outside and inside, and leave all perfect. "Dated Dec. 5, 1858." The plaintiff employed a sub-contractor of the name of Way to execute the contract. No brick foundations were made, but joists were laid on the ground, and the wooden structure built upon them. Way was summoned before a magistrate by the district surveyor. The plaintiff attended on that occasion, and contended that the building was not within the Act, but Way, without the concurrence of the plaintiff, consented to the building being taken down, no penalty being inflicted upon him. The building was finally removed, and the man who took it away said he drew no nail, bat lifted it right off the ground. The jury found a verdict for the plaintiff for 58/. A rule was obtained by M. Chambers, Q.C. calling upon the plaintiff to show cause why the verdict should not be set aside, and a verdict entered for the defendant, on the ground that the contract was an illegal contract, being contrary to the provisions of the Metropolitan Building Act, 18 & 19 Vict. c. 122, and that upon that question the decision of the magistrate was conclusive; or why a new trial should not be granted on the ground of misdirection, it having been left to the jury to say whether the defendant, knowing there were no footings, took to the building. Barnard now showed cause.-The question is, whether a structure entirely of wood, which can be carried about, is a building within the Act. It is contended that a building within the Act must be on foundations. The test, according to sect. 8, whether a building is to be deemed a new building or not is, whether it is a certain height above the foundations. Where the Act speaks of old buildings it also refers to foundations: a building, therefore, must have foundations. This structure could be, and was, lifted bodily off the ground, and was no more a building than a box would be a building. Then the decision of the magistrate is not conclusive upon the plaintiff, who was not summoned. Lastly, the building was delivered to the defendant, and he cannot now say it was an illegal building. Chambers, Q.C. and Joyce in support of the rule. The building was of combustible materials, and therefore illegal. By the first schedule to the Act the walls of any building must be of some incombustible [MAG. C.] 66 ERLE, C.J.—I am of opinion that this rule ought to be made absolute. It appears to me that the ultimate contract that was come to between these parties was a contract for a building, known to the plaintiff to be in violation of the Building Act; or, there was a contract which, whether known to him or not, was in violation of the provisions of the Building Act. The difficulty we have had is in defining the word "building," and we do not intend to attempt to lay down any definition of the word "building;" but we think that, to take the intermediate word, the structure in question here was a building within the Act. I look at the original contract between the parties, and there it is a house" or "a shop." The original contract between the parties was for a structure upon a brick foundation, to be permanent, to have a permanent foundation, and to last probably for as long as the defendant's lease and all that he held should last; and the substitution of the contract came afterwards, in which, instead of a brick foundation, a wooden structure was to be raised on joists, and so a timber foundation was to be put there in lieu of a footing of brickwork; that was an entire structure composed of wooden joists laid on the ground, and wood added to it, until the shop was made. It appears to me, by the letters between the parties, it was clearly to have answered the purposes of what had been called originally either a house or a shop, and the letter expressly declared that it will answer all the purposes and look as high, and last as long, as the structure originally contemplated. Now the structure originally contemplated was, within the understanding of all the parties, a structure and building within the provisions of the Metropolitan Building Act, and a substitution of a wooden foundation in lieu of a foundation of masonry was, in the language of the letter, for the purpose of evading the Metropolitan Building Act, and to prevent the jurisdiction of the district surveyor of the Metropo itan Board of Works applying. I am of opinion that the plaintiff was wrong in his notion. I am of opinion that a building or house constructed of wood to have no masonry let into the ground as its foundation-a house constructed of wood-would have all the peril of being built of combustible material that it would have had in case it had a brick foundation. I consider that the 12th section of the Metropolitan Building Act does command that all walls shall be constructed of such substances, of such thickness and in such manner as mentioned in the schedule thereunto annexed, and the first schedule thereunto annexed says, that every building shall be inclosed in walls constructed of brick, stone or other hard and incombustible substances; the foundation shall rest on the solid ground, or concrete, or any other substance. It appears to me that is a command to build the wall of an incombustible substance, and a command to build it so is a prohibition against building it of wood or other combustible substance, and so the contract between the parties was a contract in violation of that express provision. I think the words of the clause and the schedule I have just read constitute an answer to a great part of the argument addressed to us on there being no foundation dug into the ground and composed of masonry, because there may be a foundation resting on the ground as well as a foundation that should be dug into the ground and so composed of masonry. A great deal of the argument raised on behalf of the plaintiff rpon this occasion rested upon the fact that the structure was a ( C. B.] STETENS. GOURLEY. [C. B. structure that was removed in its entirety. I think | be made absolute, upon the ground that the plea has that was in evidence. And it was said, because it had alleged that which has been established in proof that been removed in its entirety, it was in the nature of a the building in question-or the contract rather for box or a small article, and could not, with any correct the building in question-was a contract made and use of language, be considered to be a house. But I carried out in violation of the Building Act. I agree think the auswer to that is, that the contract was for with my brother Williams that the rest of the plea is that which is called in one part of the case and in immaterial. The main substance of the contract was in another a shop, and the construction of a structure big violation of the Metropolitan Building Act. Now it enough for the purposes of human habitation, 16 feet would have been much more satisfactory, no doubt, if, by 13, with sufficient strength for use; and though by in giving definitions as this Act has done-particularly the application of great mechanical power a large struc- what a public building is-some definition had been ture of those dimensions can be removed in its entirety given of what the meaning of building must be taken to without being taken to pieces, that remarkable applica- be. That has not been done, nor has any authority tion of mechanical power does not prevent it being a been cited in which the definition of the term "buildbuilding within the meaning of the Act. On the whole ing," as used in this Act, has been given; nor do I consideration of the matter I think the statute ap- intend to do more than my Lord Chief Justice, er plies, and that this whole contract was a violation of to attempt to define precisely the extent of the the statute. These grounds are entirely irrespective of term "building" in the Metropolitan Building Act. the opinion formed by the magistrate. The parties are The question is, so far as we can ascertain it, to go before a magistrate, whose powers are set out, but whether the contract in this case was a contract that is independent of the principle on which my for a building, which building was within the opinion is founded. meaning of this Act? And looking at the facts, WILLIAMS, J.---I am of the same opinion, though it certainly appears perfectly clear that the original not without some doubt and hesitation. My doubt is intention of the parties was the erection of a structure founded on this: I entirely agree that a building of about which there could be no doubt, by setting brickthis sort is within the mischief contemplated by the work into the ground and putting the structure upon Act, and therefore, if the Act of Parliament can be it. SO No doubt could be entertained that this would construed as to include this case, we ought so to con- have been a building. The intention appears to be strue it. On the other hand, however great the benefit shown by the two letters given in evidence, and the to the public may be in giving a large interpretation, effect of those letters was to endeavour to evade we ought not to construe an Act in a beneficial way (and the plaintiff thought he had succeeded in if on the face of it it is apparent that the Legislature evading) the provisions of this Act. But in looking did not mean to extend the Act, however useful at these letters, and throughout the whole of the that it should be extended. The doubt in my evidence, it appears to me it was still the intention mind has arisen in this way: that, by the 7th section of all the parties that this should be a permanent it is provided the Act shall apply to all new buildings. structure, and it is with reference to its permanency I Then comes the question, what are new buildings? It desire to give my opinion that it falls within the terms says a building shall be deemed to be new whenever of the Metropolitan Building Act, because I observe the inclosing walls and roof have not been carried that in the first letter it is said that the shop is to be higher than the footings previously to the 1st Jan. built all in wood: "I have found out a new plan for 1858. Suppose in a case like the present that, at the us to work in reference to this shop;" and it was to be date of the 1st Jan. 1858, the building in question had placed there as a permanent thing. It is to be built been previously carried up a certain height, is that a all in wood; it would be less expensive and answer all new building within the meaning of the Act of the purposes and it would avoid the Metropolitan Parliament ? That is to be ascertained by applying Building Act; "and it will last quite long enough for the parliamentary test. Then the test is to see you." Now, what was intended originally by this whether the walls have been carried higher than the specification. It appears it was to last a considerable footings. It is impossible to apply that test, because time, according to the terms of the letter; the change there are no footings. Therefore the argument founded in it was thought to effect an evasion of the Act. on that, not with reference to the main question in Does that alter its permanency? The other letter is to this case, but only as an argument, is, by implication, the same effect. Now a difficulty that occurred to me that the intention of the Legislature was, that the Act during the argument was upon the first schedule, should apply to cases where the building was a building which is referred to by the 12th section, that the that had footings. This had not footings. I have walls shall be constructed of a particular substance. some doubt still whether this Act meant it to apply The language of the schedule is, "Every building shall to any sort of building to which the test I have given be inclosed with walls constructed of brick, stone, or to ascertain whether it is a new or old building cannot other hard and incombustible substances, and the be applied; but that is not a sufficient doubt to induce foundations shall rest on the solid ground, or upon me to differ from the rest of the court. On the whole concrete or other solid substance;" assuming, thereI concur, assuming this to be a building within the fore, whatever the structure should be it is to be a meaning of the Act. It is clear the contract is a building that should have foundations that might rest violation of the Act of Parliament, according to the upon the solid ground, or on concrete in the ordinary principle laid down in Forster v. Taylor, 5 B. & Ad. way. Then there was certainly raised a considerable 887, where it was held that the vendor of butter in doubt in my mind whether this thing that was to be firkins, under the provisions of the 36 Geo. 3, put up had any foundations at all; but I think the c. 88, could not recover the price of the butter, Lord Chief Justice has stated that which I am because the provisions of that Act had not been inclined to agree to, that a foundation of some kind in complied with. It is clear the plaintiff cannot fact must have been laid for it on which the rest of the avail himself of the contract entered into here, and superstructure was attached. It would probably be an therefore that part of the rule, about being misled answer to the objection there must be a foundation, that and the thing becoming useless to him because there was in this case a foundation. Then with respect the magistrate had the building removed, has become to sect. 8, which has been referred to, I own I incline immaterial. It is sufficient to constitute a good bar to think that the terms there, "that a building shall to the action; and, in my judgment, the rule ought be deemed to be new whenever the inclosing walls to be made absolute. thereof have not been carried higher than the footCROWDER, J.-I am of opinion that this rule shouldings previously to the said 1st day of Jan. 1856; C. B.] SEWELL v. TAYLOR. LC. B. any other building shall be deemed to be an old build- | It is not necessary to say whether they would or not; ing," were intended to apply to one species that is deemed in this case this shop, many feet wide and many feet to be unlawful, namely, a building such as wooden high and long, intended for the ordinary business of buildings only; and I think up to the period when the human life, is a building in the ordinary sense of the Act passed it would be difficult to say that is the only word. But then what is the object of the Act of Pardefinition of an unlawful construction. In this case liament? The object of the Act of Parliament is, that the parties could hardly contend, if they had let the land should not be covered with combustible structures. wood into the ground five feet deep without any footing To depart from the ordinary sense of the word buildand so erected it, that this would not have been a ing would, therefore, frustrate the object of the Act. building within the meaning of the Act of Parliament. On these grounds, looking at the ordinary signification I am inclined therefore to say the 8th section only refers of the word- the meaning-there cannot be a doubt of to one species of building, not making the definition to this, that it is a building within the Act: the plea is include any building, on the ground that this is a struc-proved, and the rule should be made absolute. ture of some considerable magnitude for a shop-a large room-set up for a permanent purpose, and with the intention to be permanent. It does seem to me that it falls within the meaning of "building," as far as I can collect, within one of the meanings, at all events, intended by the statute; certainly it is within the mischief, and therefore being clearly within the mischief contemplated by the Act, I am bound so to construe it. It seems to me it is within the terms of the Act as well as within the spirit. Therefore this was a contract for an unlawful building, and was in violation of the Act of Parliament. Monday, Nov. 14. Rule absolute. SEWELL (appellant) v. TAYLOR (respondent). Vagrant Act, 5 Geo. 4, c. 83, s. 4-Rogue and vagabond-" Place of public resort”-Sale by auction. A sale by auction, called by public placards, and held in a house and garden in and adjoining a public street, to which sale the public had free access, and where a large number of persons were assembled, is a "place of public resort" within the meaning of the 4th section of the Vagrant Act, 5 Geo. 4. c. 83; therefore a Held rightly convicted as a rogue and vagabond. 'suspected person” apprehended in such a place was Case for the opinion of the court under the statute 20 & 21 Viet. c. 43: "On the 4th April 1859 Joseph Sewell was brought in the custody of Walter Taylor, a constable for the borough of Congleton, in the county of Chester, before us, Edward Harrisson Solly (mayor), and Edward Lowndes Mallabar, two of the justices of the said borough, and charged, "For that he, on the 30th day of March 1859, being a suspected person or reputed thief, did frequent a place of public resort in the said borough with intent to commit felony, contrary to the provisions of the Vagrant Act, 5 Geo. 4, c. 83, s. 4. "The prisoner was remanded twice, and the examination was concluded on the 13th April 1859. "We found it proved that the prisoner was a suspected person, and that on the 30th day of March 1859 he was at a sale of household furniture, books, pictures, &c., held at a place called Moody Hall, in this borough; that such sale was called by public placards posted in the town and neighbourhood several days previously to its being held; that at least three hundred persons were there congregated; that the sale was by public auction, and that it was held on two consecutive days in a house and garden adjoining one of the public streets of this borough, and that the prisoner was there with intent to commit felony. BYLES, J.-I also am of opinion that this rule must be made absolute. The respect I entertain for my brother Williams' opinion, who has expressed some doubts, has created the only difficulty I feel. I agree with my brother Crowder that, as far as sect. 8 applies to buildings of a particular class, a question might arise whether they were new buildings or old buildings, and the 8th section is directed solely to the solution of that difficulty, leaving it quite independent of other sections of the Act, which embody the schedule No. 1, enacting that every building shall be constructed of incombustible substances. That being so, the question is, whether this is a building; and that seems to me to be the only question, because it does not appear from this plea but that the defendant may have derived some benefit from the erection; therefore it is quite necessary for him to make out the first part of the plea, that is to say, that it is an illegal building. Then that brings the question to this: what is the meaning of the word "building ?" It is to be observed the word "building," as often happens is used in a sense wider than the substantive building. It is suggested by my brother Williams, that we speak of the building a carriage, or building a ship-it is said that birds build nests; but neither of those three things would be called buildings. The meaning of the word building must be decided by that which is its ordinary acceptation, and it is a well-established rule, that words in a statute are to be construed according to their ordinary meaning. It is difficult, I may say impossible, to define the word building, but that is an impossibility which is not "On behalf of the prisoner it was contended that peculiar to the word building, and arises from the private premises on which a sale by public auction was imperfection of human language. It is easy to say this being held did not come within the meaning of the thing is a building, and to say that is not a building; term "place of public resort" in the fourth section of then, if it is not possible to define the line where the Act; that a place of public resort meant a place the true description ends, common language must be to which the public were in the habit of resorting, and our guidance, and we must follow the rule expres ed in not a mere special assemblage or collection of persons the maxim res ipsa loquitur. What is the ordinary mean- for a purpose which might never occur there again. ing I do not pretend to say. It is usually understood "We decided that there was a difference between a to be a structure, an edifice, or an erection, or some-place of public resort and a place of common resort; thing of considerable size, intended to be permanent, that the above-mentioned place of sale was a place of and intended to last for a considerable time, whether public resort to all intents and purposes, for the time let into the ground or not. A church built of iron, or being; for that the public had full and free access an edifice built of wood, a house or a stable, or a night thereto, and passed and repassed at will to and from house for cattle, or a coach-house, are evidently build- the said sale; and that as many persons did actually ings: but it is equally clear that a birdcage, with a resort thereto, it was such a place as was intended to handle for lifting it off the ground, is not a building; be protected by the section. or, a wig box; the value of these things consisting of their portability. On the other hand, a dog kennel, though fixed to the ground, would not be a building, because it was not of any size as a coop for fowls. "We accordingly convicted the prisoner of being a rogue and vagabond, within the intent and meaning of the fourth section of the said statute, and ordered him to be committed to the house of correction at Nether |