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BRISTOL v.

JONES.

the stipulation being held to be a condition precedent, unless DEAN, &C. OF the words are so strong as to admit of no other construction. Then, the words "without committing any waste or spoil" seem to me intended to relieve the tenant from liability for waste in cutting the timber: and, if so, the inference is that the whole stipulation amounts to a licence only. Another argument in favour of this construction is, that, *if the words. amounted to a condition precedent, such condition could not be divided; and yet it could not possibly apply to the repairs of such portions of the building as are not of wood.

HILL, J.:

I have entertained some doubt during the argument; in fact my impression was at first rather in favour of the defendants. But I have arrived at the same conclusion as the rest of the COURT. It is a wholesome rule of construction, that some effect must be given to words designedly used by parties to an instrument. Now it is contended, on behalf of the defendants, that the words "having and taking" &c. "without committing any waste or spoil" must amount to more than a mere licence, because, if a licence only, they confer no greater powers than those which the tenant would have at common law. But that is not so. The tenant is precluded, at common law, from taking timber for repairs made necessary by his own default; and, if he take it, he is liable for waste. That is laid down in Co. Litt. 53 b; 2 Roll. Abr. 822, "Wast justifiable," pl. 3, 5, 8; Com. Dig. "Wast" (D 5). The covenant to repair in this lease extends to all repairs: and therefore I think the intention of the landlord was to empower the tenant to take. timber for all such repairs, if there was enough upon the estate, without being, in any event, liable for waste in so doing. This seems to be the reasonable construction; and, moreover, I think, upon the whole, that we should be straining the words themselves if we held that they amounted to a condition precedent.

Judgment for the plaintiffs.

[ *491]

REG. v. INHABITANTS OF KENDAL.

(1 El. & El. 492—501; S. C. 28 L. J. M. C. 110; 5 Jur. N. S. 545.) The appellants against an order of removal delivered to the respondents notice of trial of the appeal, and a statement of grounds of appeal, fourteen days before the then next Sessions. The appeal came on at those Sessions. After the respondents' counsel had begun to state his case, the Sessions, on the application of the appellants' counsel, adjourned the appeal to the next Sessions, on the ground of the absence, through illness, of a material witness, Fourteen days before the Sessions to which the appeal was adjourned, the appel

1859.

Jan. 22.

[ 492]

REG.

v. INHABI

TANTS OF
KENDAL.

[493]

lants delivered a fresh statement of grounds of appeal, raising several new grounds. At the adjourned hearing, the respondents objected to any fresh grounds being entered upon: but the Sessions overruled the objection, and quashed the order on evidence given solely in support of one of the new grounds.

On a case stated by the Sessions:

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Held, that the trial of the appeal having been adjourned, the Sessions to which it was adjourned were the Sessions at which such appeal was intended to be tried," within sect. 81 of the Poor Law Amendment Act, 1834 (4 & 5 Will. IV. c. 76); and that the appellants were entitled to deliver fresh grounds of appeal fourteen days before those Sessions.

ON an appeal against an order for the removal of Ellen Williams and her two children from the township of Kendal, in the county of Westmoreland, to the parish of Liverpool, the Quarter Sessions quashed the order, subject to the opinion of the Court of Queen's Bench on a case, of which the material part was substantially as follows.

On 26th January, 1858, the respondents sent to the appellants, by post, a duplicate of the order, with a notice of chargeability, and a statement of the grounds of removal. The settlement set up by the grounds of removal was a birth settlement of the pauper's deceased husband in the appellant parish. On 25th February, 1858, the appellants served the respondents with a notice of their intention to appeal at the then next Quarter Sessions for Westmoreland; and, on 24th March, 1858, they sent the respondents a notice that the appeal would be prosecuted and tried at the then next Quarter Sessions, the notice being accompanied by grounds of appeal. In these grounds the appellants, among other matters, set up various settlements of the pauper's husband, by renting a tenement, and by hiring and service and *also relied upon a birth settlement of the father of the said pauper's husband. Under the foregoing statements of grounds of removal and grounds of appeal, the appeal was called on at the Quarter Sessions holden on 9th April, 1858. When the counsel for the respondents was beginning to state his case, the counsel for the appellants interposed, and applied to the Court to adjourn the hearing of the appeal to the then next Sessions, on account of the absence of a material witness, who, as was stated in an affidavit, had been subpoenaed, but was too ill to attend. The Quarter Sessions thereupon, without going into the merits of the case, or hearing witnesses on either side, ordered that the appeal should be adjourned, on account of the absence of a material witness, to the next Quarter Sessions, on payment of the costs of the day by the appellants. On 15th June, 1858, fourteen clear days before the commencement of the next Sessions, the appellants served the respondents with fresh grounds of appeal, which comprised some of the old grounds of appeal, but sub

stituted for others of them two fresh grounds, one being a birth settlement of the mother of the pauper's husband.

At the next Sessions, held on 2nd July, 1858, the appeal was again called on, and the respondents proved their case, viz. a birth settlement of the pauper's husband in the appellant parish, and the consequent chargeability of the paupers. The counsel for the appellants then proposed to prove one of the new grounds of appeal, namely, a birth settlement of the mother of the pauper's husband in the parish of Llanfair. This was objected to on the part of the respondents, on the ground that the appellants were precluded by law from giving evidence in support of any ground of appeal which they had not served. on the respondents fourteen days at least before the first day of the former Sessions. The COURT reserved the point, and permitted the appellants to proceed; which they did, and confined their evidence entirely to the proof of the above new ground of appeal. The witness, on account of whose absence the hearing had been adjourned, was not produced. The Quarter Sessions decided that the appellants had proved their case under the above ground of appeal; and quashed the order of removal.

The question for the opinion of the Court is, Whether the appellants, under the above circumstances, were authorized by law to serve the respondents with fresh grounds of appeal after the first, and before the second, Quarter Sessions; and whether the Quarter Sessions were right in permitting evidence to be given by the appellants in support of the said fresh ground of appeal. If the Court should be of opinion in the negative, the order of Sessions to be quashed, and the order of removal confirmed; if in the affirmative, the order of Sessions to stand confirmed.

Pickering and E. B. Dawson, in support of the order of Sessions. * * *

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Huddlestone, contrà.

(Lord CAMPBELL, Ch. J. was absent.)

[496]

[497]

WIGHTMAN, J.:

The question is, Whether the appellants, under the circumstances of this case, were authorized to serve the respondents with fresh grounds of appeal after the first, and before the second, Quarter Sessions. The circumstances are these. Certain grounds of appeal were duly delivered before the first Sessions: but, at the first Sessions, the appeal, after it had been called on, and the respondents' counsel had begun to state his case, was adjourned, upon the application of the appellants' counsel,

R.R.-VOL. CXVII.

20

[ *498 1

REG.

v.

INHABITANTS OF KENDAL.

[ *499 ]

on the ground that a material witness was unable to attend. The case appears to me to be much the same as if, just before the appeal was called on, or named, the appellants' counsel had applied to have it respited: I do not think that the fact of the respondents' counsel having begun to state his case makes any real difference. Then comes the question, whether, under sect. 81 of stat. 4 & 5 Will. IV. c. 76, the appellants were at liberty, after such adjournment, to deliver, fourteen days before the Sessions to which the appeal was adjourned, new grounds of appeal. The respondents contend that, inasmuch as that section enacts that the grounds of appeal are to be delivered fourteen days before the Sessions at which the appeal "is intended to be tried," these second grounds of appeal were not delivered in due time, because the parties had intended to try at the first Sessions, and the appeal was adjourned only in consequence of an unforeseen occurrence. There are two cases on this point, Reg. v. The Justices of Derbyshire (1) and Reg. v. Arlecdon (2). In the first of those two cases, as here, grounds of appeal had been duly served. before the then next Sessions: but the appeal stood over, from pressure of business, to the following Sessions. It may be taken that the parties there intended to try, and, but for this *reason, would have tried, at the first Sessions. Then, fourteen days before the Sessions at which the appeal came on to be heard, the appellants served new grounds of appeal; and the same objection was taken that is taken here. The Sessions held the objection good: but this Court decided that the Sessions were wrong in so holding, and that the appellants were entitled to deliver new grounds of appeal as they had done. That case is strongly in favour of the appellants: but Reg. v. Arlecdon (2) was relied upon by the respondents as being an authority the other way. That case, however, is distinguishable, and the COURT, in giving judgment, did distinguish it, from Reg. v. The Justices of Derbyshire (1), on the ground that the appeal had been tried, and the adjournment was made in consequence of the Bench being divided; so that the new grounds of appeal could not be said to have been served fourteen days before the appeal was "intended to be tried.” Reg. v. The Justices of Derbyshire (1) has never been overruled, and appears to have been generally acted upon: and I think, therefore, that we ought, upon the authority of that case, to give judgment for the appellants.

(ERLE, J. had left the Court during the argument.)

(1) 6 Ad. & El. 612, n.

(2) 11 Ad. & El. 87.

CROMPTON, J.:

I am of the same opinion. On looking merely at the words of sect. 81, without reference to the authorities, I was inclined to think that the words "the Sessions at which such appeal is intended to be tried" meant the Sessions at which the parties originally intended to try it. But a different construction has been *adopted in Reg. v. The Justices of Derbyshire (1), and has . since been acted on: and in cases of this kind it is peculiarly dangerous to alter the existing rule of practice. The COURT, in that case, appears to have considered that the original intention of the parties to try at the first Sessions did not, in the event of there being no trial then, prevent the Sessions to which the appeal was adjourned being the Sessions at which the appeal was "intended to be tried," within the meaning of the Act and I see no reason for holding that to be an unreasonable construction. If the appellants here had delivered their first grounds of appeal twenty days before the then next Sessions, they would have been at liberty, up to fourteen days before those Sessions, to abandon those grounds, and deliver new ones and therefore I do not see why they should not be entitled, if the trial of the appeal be adjourned, to deliver fresh grounds fourteen days before the Sessions at which they then intend to try. This case falls much more within Reg. v. The Justices of Derbyshire (1) than within Reg. v. Arlecdon (2). The only distinction between the first of those cases and this is, that here the respondents' counsel had begun to state his case: and I do not think that that fact makes any substantial difference. The effect of the application for an adjournment was, practically, to put off the trial. If the case had really been entered upon, it could not have been adjourned, any more than a cause at Nisi Prius, on the ground of the absence of a material witness. If it be said that there is hardship in putting the respondents to the trouble and expense of preparing to contest new grounds of appeal, the answer is, that they are entitled to ask for the costs of the day if the appeal be adjourned; that such costs may be made, as here, part of the order; and that the Sessions, if they think fit, may adjourn. the appeal on the terms that no fresh grounds of appeal be delivered.

HILL. J.:

I am of the same opinion. When the appellants delivered their fresh grounds of appeal, they then intended to try at the next Sessions: so that the grounds of appeal were de

(1) 6 Ad. & El. 612, n.

(2) 11 Ad. & El. 87.

REG.

v.

INHABI

TANTS OF
KENDAL.

[ *500 ]

[ *501 ]

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