THE IRISH JURIST. No. 286.-VOL. VI. ROLLS COURT: NAMES OF THE CASES REPORTED IN THIS NUMBER. DUBLIN, JUNE 17, 1854. COURT OF EXCHEQUER-(Continued): 16 & 17 Vic. c. 113, s. 101.............. .................................................. IRWIN U. LANDON. Practice-Judgment as in case of nonsuit-Side bar rule-16 & 17 Vic. c. 113, 8. 106.... FITZPATRICK V. KELLY. Pleading-Prolixity—. Justification-Embarrassing defence-16 & 17 Vic. c. 113, s. 83........ DOYLE v. MALCOLMSON. Practice-EjectmentAffidavit of party-Verification of service-Land agent-185th General Order...... SMITH V. GRANT. Practice-Service of notice. Holidays-Defence—General issue-16 & 17 Vic. c. 113, s. 232.. S15 315 315 316 371 318 CUNNINGHAM v. Desart; DESART v. CUNNING- cupy. The flooding of the cellar was alleged to have been the result of the improper construction of this sewer. The jury having found that the sewer A POINT of considerable practical importance has had not been constructed with proper care and skill, been very lately determined in the English Court of were directed to find for the plaintiff, and a new Queen's Bench in the case of Alston v. Grant, (8 trial was subsequently applied for upon the ground El. & Bl. 133.) That was an action on the case of misdirection. The argument on behalf of the for flooding the plaintiff's cellar. It appeared that defendants consisted in this, that inasmuch as the the defendants were the owners of two houses oc- plaintiff had taken the house subject to the inconcupied by the plaintiff as tenant. About twenty venience, no breach of duty had been committed; years before, the defendants, whilst in exclusive that while the entire of the property was vested in occupation of the entire of the premises, a part of the defendants, they had a right to construct a which was afterwards let to the plaintiff, constructed faulty or imperfect sewer; that they incurred no a sewer, which carried off the water from a reser-new duty by letting the houses, and that the only voir belonging to them. This sewer was in the burthen cast upon them with reference thereto was portion of the premises which they continued to oc- that of keeping it in as good repair as it was in at the time of letting. A passage from Gale on Ease- two houses and then grants one away, it is generally ments, p. 51, was relied on as demonstrating the principle which ought to govern the case: "When the land benefitted and the land burthened belong to the same owner, he may change the qualities of the several parts at his will, and his express volition, evidenced by his acts, must, at least, be as effectual to impress a new quality on his inheritance as the implied covenant arising from his long-continued acquiescence." On the part of the plaintiff they relied principally upon the authority of Lord Holt in the early case of Tenant v. Goldwin, (2 L. Raymond, 1089,) wherein that eminent judge by a very homely illustration showed that in case the owner of two houses sells one to a stranger, he is bound to protect the latter against any inconvenience arising from the defective state of the wall of an outoffice, which the vendor is bound to keep in repair. The court in giving judgment seemed to consider that the authority of Lord Holt was conclusive upon the point at issue, and that the want of efficiency of the sewer at the time of the letting to the plaintiff did not alter or affect the obligation of the defendants to protect their tenant against loss to be occasioned thereby. Lord Campbell said, "Had the sewer been made before the houses were let to the plaintiff, in the way in which a prudent man would deal with his own property, whatever inconveniences followed, the lessee must have submitted to them. But here the sewer was improperly constructed at first; and when the defendants let the house, a duty was imposed upon them of not allowing that to continue which till then had been rightful. To do so was a derogation from their own act in letting. Lord Holt's authority seems to me to be express. When the houses were in the same hands, no duty could arise; but a duty arose when one house was sold. It cannot be said that when the houses were in the possession of the same person, any new quality was imposed upon either, and that the purchaser of one was ever after to submit to the nuisance. Lord Holt's illustration, which I take to be good law, applies, and the continuance of a sewer improperly constructed is a wrong for which an action lies." Crompton, J. said, “An analogy seems to be suggested from the law of easements. Where a party enjoys implied that he grants all easements necessary for the enjoyment of the house granted. Mr. Gale appears to treat this as a grant created or implied by necessity. But that is not at all like the case where a party keeps in his hands a nuisance. The right to have water flowing into a neighbour's house from an ill-constructed sewer is nothing like an easement. The case is quite different, therefore, from those which have been decided upon the implication arising from the grant of a dominant tenement." Erle, J.-"It seems to me that a right is cast on one neighbour not to injure another in his ordinary enjoyment. The plaintiff had a cellar filled with goods; his ordinary enjoyment of that included its not being filled with water." The cause of dispute in the foregoing case is one of no unfrequent occurrence, though the circumstances may slightly vary, and the law, as it was there administered, appears to us to be consistent both with justice and common sense. Suppose that the lessor had a powder mill on his premises at the time of the lease being executed, we can hardly suppose that any one could imagine that it would be a sufficient answer to a claim for damages by the lessee in the event of a subsequent explosion, that such was traceable to a fault of construction existing at the date of the lease. Erle, J. suggested in the latter part of his judgment that "if a consent on the part of the plaintiff had been set up, there would have been a question for the jury, but there was no ground for thinking that the plaintiff expected his cellar to be overflowed." Trying the case before the court by such a test as this, it was clear that the act of the defendant must be wrongful, as it was impossible to conceive that the plaintiff could have consented. Had, however, the nuisance complained of existed upon the demised premises at the time of the lease, in a patent condition, such, for example, as an offensive cesspool communicating with that portion in the defendant's hands, it would then have been open to contend that the lessee had assented to a diminution of the entire enjoyment of the premises, and could not thereafter have derogated from his own acceptance, cum onere, of the thing demised. NEW LAW BOOKS. Just Published, price 78. 6d., by Post, Ss. 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We think that it is well deserving the consideration of the Legislature whether a more summary remedy The remedy which we suggest is one, the idea might not be given against railway and other public of which we borrow from the summary mode of companies, failing in the performance of certain appeal given to the Court of Queen's Bench by the duties, than the writ of mandamus. We think Municipal Corporation Acts in lieu of a quo warthat the present law operates to the disadvan-ranto, and the jurisdiction given by the 14 & 15 tage of both prosecutors and defendants. We have Vic. cap. 93, to compel justices of the peace by a frequently witnessed proceedings against railway summary and compendious process to adjudicate in companies in the Court of Queen's Bench, in which cases of legal difficulty. We propose that the Court recourse has been had to the tedious and very ex- of Queen's Bench shall be empowered to make orders pensive process of the writ of mandamus for the upon public companies for the performance of their purpose of enforcing the completion of works and duties, by the comparatively cheap process of a rule the doing of necessary acts, to which the company nisi, to be made absolute, if no sufficient cause be had really no answer, and probably were only shown, with power to require the parties to proceed waiting either for the sanction of an authoritative by mandamus, where the matter disputed is of tribunal, or until they had time to find means to such a nature as not to be disposed of satisfactorily meet the requisition. In the meantime, the expense on motion, and to allow a proper respite for the incurred by the legal steps, which the law renders execution of the order, when the circumstances renit necessary in most cases to resort to, fearfully der that just. This would, on the one hand, conswells the ultimate cost of the carrying into effect of the decree of the court, and is like usurious interest upon the sum required. The prosecutor, more especially if a poor man, is placed in very great dif duce to assure to the public at large their rights, and, on the other, would save the shareholders of incorporated companies from a grievous burthen. |