JOHNSON

บ.

LORD

T. T. 1864. which he retains in his occupation includes the "house, warehouse, Queen's Bench counting-house, or shop," yet that statute provides more effectually against occasional residences than the previous Act of 1840; inasmuch as it substitutes two years and eight months, instead of twelve months, as the period during which the claimant must have resided within the borough, or seven miles thereof, and must have occupied "a house, warehouse, counting-house, or shop" within the borough.

MAYOR OF

DUBLIN.

We are accordingly of opinion that the claimants' names should be retained on the burgess-roll, and that the cause shown by them against the conditional order should be allowed; but, under the circumstances, without costs. It appears that this is the first occasion on which the question before us, under the Act of 1849, has been raised for the adjudication of this Court; and that the appeal was taken at the suggestion of the Court below, in order to obtain our decision for their future guidance.

HAYES, J.

I concur in the opinion that these four names should be retained on the burgess-roll. The great point, upon which Mr. Chatterton relied as being almost decisive of the whole question, was, that the rating should, in its local limits, be exactly conterminous with the occupation, in order to entitle the occupant to the franchise. He took a distinction between the burgess franchise and the Parliamentary franchise; and, acting upon that, he thought that the case of Wright v. The Town-clerk of Stockport (a) did not apply to the present case. I do not concur in his view. Although it was a case of the freeman franchise, the reasons there given really govern this case. To entitle a burgess to the franchise, there must be not only an occupation, but a rating of the premises occupied. In both cases it becomes a matter of inquiry whether the individual must be separately rated for those premises, apart and distinctly from all other premises. In Wright v. The Town-clerk of Stockport, it was held that a person is not the less rated for certain premises because he is rated for others with them. Whether the object of the Legislature,

(a) 5 M. & Gr. 33.

Queen's Bench

JOHNSON

V.

LORD MAYOR OF

in requiring the rating, was, that it should be additional evidence of T. T. 1864. occupation, or additional evidence of the status and condition of the party in society, and that he is bearing his share of the public burdens, there is nothing in the letter or in the spirit of the statute to introduce the distinction taken by Mr. Chatterton. We are not warranted in introducing words which are not in the statute, and which are against the meaning of the Legislature. That point disposes of the two first cases; and goes a long way to dispose of the other two, upon which I have only to say a word in addition.

In Mellon's case, the party held a shop and parlour. The shop was closed from the inside; and at night the party went out through a door from the shop into the hall, and so into the street through the front door of the house. There was something of the same kind in Fitzgerald's case. He held a shop and parlour, and the shop had a door communicating with the hall, leading to the door of the owner of the house. Though Fitzgerald might have gone out by that way, he had a separate door for himself. It appears to me that, in each of these cases, the claimant's right to pass into the hall of the master of the house, and from thence through his hall-door into the street, is nothing more than a privilege or easement to which the master of the house is subject; but does not derogate from his rights as owner of the mansion.

DUBLIN.

FITZGERALD, J.

I concur in the result at which the other Members of the Court have arrived; but propose to offer an opinion only upon the plain single question to which the clear, ingenious, and candid argument of Mr. Chatterton reduced the case.

The case is of great practical importance. The subject-matter of occupation, in all the cases, it was conceded, was a tenement which, if separately rated, was sufficient to confer the franchise; the rating being of sufficient duration in point of time. It seems to me that the occupier of the tenement is not less duly rated to the relief of the poor because it includes, or is rated with some other tenement, or forms part of some other tenement held along with those duly rated to the relief of the poor.

E. T. 1862.

Queen's Bench

May 5, 13.

T. T. 1862.

June 13.

A landlord

sued his tenant

for (first) an injury done by

the tenant to the landlord's reversion, by (inter alia) wrongfully re

The Right Hon. HENRY SPENCER Baron TEMPLEMORE

V.

JOHN MOORE.

SUMMONS AND PLAINT :-First paragraph-That at the time, &c., certain land, situate at Ballymacarrett, in the county of Down, was

in the possession of the defendant, as tenant thereof to the plaintiff,

the reversion then belonging to the plaintiff, and the defendant

injured the plaintiff's said reversion in said land, by wrongfully moving from opening certain cuts, holes and excavations in said land, committing the land large quantities of waste therein, and wrongfully digging and wrongfully removing clay; and for (secondly) a therefrom large quantities of clay and soil-to wit, 10,000 cubic

conversion of

the same clay. yards thereof, of great value, to wit, of the value of £600, which The jury the defendant wrongfully carried away and converted to his own

found that the removal of the

clay had de- use, to the damage of the plaintiff of £600.

preciated the

value of the

Second paragraph-Trover for the conversion, by the defendant

land by £156; to his own use, of the plaintiff's goods-to wit, 10,000 cubic yards and that the

value of the of clay and soil.

clay itself was

£150. A ver

dict was en

Plea (to both paragraphs, and to the whole of the plaintiff's

tered for the claim):-Payment into Court of the sum of £60, in satisfaction of the plaintiff's claim; whereupon issue was joined.

former sum.

Held, on

motion to increase the ver

The case was tried at the last Spring Assizes for the county of dict, by adding Antrim, before HAYES, J. The evidence was very voluminous, but

thereto the

sum of £150, it is not material to be stated at length. For the plaintiff it was that the plain

tiff was not en- proved that the defendant had dug up and carried away a large titled to receive

com

the value of quantity of the soil, which was a species of brick-clay; and the the clay, as well as alleged injury to the reversion consisted in the removal of a rise or knoll, which had given to the land a peculiar value as a site for done him by villas, the ground being situated in the neighbourhood of Belfast.

pensation for the injury

the removal of

the clay.

[LEFROY,

The defendant's evidence was wholly directed to reduce the

C. J., dissen- amount of damage. Evidence was given by him to the effect tiente.] that the land had been improved, for agricultural purposes, by

Queen's Bench

TEMPLEMORE

v.

MOORE.

the removal of the brick-clay, the land being drained, subsoiled and E. T. 1862. deepened; and also to prove that the quantity and value of the clay removed had been less than had been alleged by the plaintiff. The defendant's Counsel insisted that the plaintiff was not entitled to compensation both for the depreciation in value of the land as a site for villas, and also for the value of the clay as brick earth.

The learned Judge called upon the plaintiff's Counsel to say whether they insisted on compensation in damages both for the value of the clay removed, and also for the depreciation of the field as villa ground.

The plaintiff's Counsel replied in the affirmative.

The learned Judge, when charging the jury, left it to them to consider the amount of damage sustained by the plaintiff, in three aspects, as it had been presented in the evidence for the plaintiff First, upon a consideration of the value of the clay and soil which had been removed; secondly, considering the ground as depreciated for agricultural purposes; thirdly, considering it as ground adapted for setting as villa ground in the neighbourhood of Belfast.

The learned Judge, being of opinion that the plaintiff was not entitled to have the value of the clay removed added to the amount of depreciation, requested the jury to give him separate answers to those questions; and reserved for the Court above the question whether he had left the case to them correctly. He also told the jury that the plaintiff was entitled to the result in such view as was most favorable to himself. No objection was made to the way in which the questions were left to the jury.

In answer to the first question, the jury estimated the clay taken as 9000 cubic yards, at 4d. per yard; making £150.

In answer to the second question, the jury found that, for agricultural purposes, the land had not been deteriorated at all.

Their answer to the third question was, that the freehold had been deteriorated, for building purposes, to the amount of £13 per annum; which, at twelve years' purchase, amounted to £156.

Thereupon the learned Judge directed the jury to find a verdict

Queen's Bench

E. T. 1862. for the plaintiff £96 damages, over and above the £60 paid into Court; and reserved to the plaintiff leave to move the Court above to increase the verdict by the sum of £150, the value of the clay. A conditional order having been obtained, pursuant to the leave reserved

TEMPLEMORE v. MOORE.

R. W. M'Donnell (with Hugh Law), showed cause.

The only question in controversy upon this motion is, whether the plaintiff is entitled to add together, and include in his verdict, the two sums-the value of the clay removed, in its character of brick-clay, and the amount by which the land has been deteriorated for building purposes. The plaintiff is, no doubt, entitled to get the best value which he himself could have extracted from the land, had he been in possession of it; but he is not entitled to get both these sums, which respectively represent the amount of the deterioration done to the land, in its capacity to be used for two purposes, which are utterly inconsistent the one with the other, and for one only of which the land could have been used at one time. Neither the plaintiff nor any other person could have used the surface of the land, at one and the same time, as a site for villas and as clay for making bricks of. Had the plaintiff used the land as a site for villas, it would have been absolutely worthless to him in its cha

racter of brick-clay.

Neither could he have made bricks from the soil without doing to the land the very injury of which he now complains. The injury to the land, as a site for villas, consists in the removal of an undulation from the middle of the field; and this must be removed in using the ground as a brick-field. A sum equivalent to the value which the plaintiff could have realised, if he himself had been in occupation, is the proper damage: Jones v. Gooday (a). The onus of proving that the land could be used for more purposes than one at the same moment lay on the plaintiff, who must now fail, because he did not prove that both values could be extracted from the land at one time. Perhaps it may be argued that, although this sum of £156 was, prima facie, given as compensation for the whole injury suffered by the plaintiff, yet in fact it is not full compensation for that injury, because the jury excluded

(a) 8 Mee. & W. 146.