« PreviousContinue »
they had this right by express grant from the Crown, or by arrangement with the former owners of the soil.
Knock-out Sales and Puffers. In November last the Government held a sale by auction of surplus stores at Woolwich Arsenal, and among the lots sold was one consisting of four cases of sweet spirit of nitre. Prior to the sale it was said to have been arranged between plaintiff and defendant that they should not bid against each other, that the defendant should purchase the goods, and that after the sale they should agree as to how it was to be disposed of. At the sale the goods were knocked down to the defendant for £5, and it was subsequently arranged that the defendant should sell the goods to plaintiff for £6. The value of the goods were stated to be £13 Ios. The defendant failed to perform his contract, and the plaintiff brought the present action. At the trial the Deputy County Court Judge (Mr. Sills) held that the arrangement between the parties prior to the sale was a conspiracy to cheat the Government, and non-suited the plaintiff. The question for the Divisional Court was whether there had been a conspiracy, and whether the Deputy County Court Judge was wrong in non-suiting the plaintiff, and the Divisional Court held that there was nothing apparently illegal in what the parties did. The Government should have employed a "puffer" within certain limits.
. The case was one the Divisional Court considered ought to go back to the County Court Judge to be heard. The Deputy County Court Judge was wrong in his law, and, to enable him to come to a decision on the facts, he must hear the evidence. On the case going back to the Woolwich County Court, His Honour Judge Addison pointed out that it would be quite legitimate for persons attending a sale to agree amongst themselves not to bid against each other, and to buy as cheaply as possible. That could not be called a “knock-out sale"; other persons could bid and buy as well. Fraud and conspiracy could not be advanced unless lay buyers were hustled about or intimidated by a ring. If the object of the conspiracy was to defraud the Government, then it was unlawful and fraudulent; that would be a “knock-out” sale in the strict meaning of the term, but in this case the plaintiff had made a reasonable contract with the defendant. The parties had arranged not to benefit people by a sort of mad competition, and it was quite clear they did not prevent the public from buying if they wished to do so. The case was a simple one and the contract was good. A “knock-out” sale was illegal, because conspiracy and fraud must be used in carrying it out. But here there had simply been an arrangement between a few men not to bid against each other. As judgment was in favour of the plaintiff, he came out of the affair (Leopard v. Litoun), as his counsel aptly phrased it, with clean hands.
Are Continuing Noises a Nuisance? A Case for Chambers. Some valuable
valuable suggestions fell from Mr. Justice Kekewich in the recent case of Norton v, Mills. A firm of mechanical instrument makers and music sellers frequently let their upper rooms for lessons in pianoforte playing and singing, and the plaintiffs alleged that a great nuisance was caused by this loud singing, as the pupils had often to sustain a high note of the scale, and this singing continued for several hours. The Divisional Court granted an injunction prohibiting the singing lessons and practice on the particular premises so as to cause annoyance or injury to the plaintiffs. The question then arose who was to pay the costs? This depended on whether there was a nuisance existing in June, 1896, when the writ was issued. If the
plaintiffs' witnesses were accurate there was a nuisance. Reference was made to the case of Walter v. Selfe, 4 De G. and Smale 215, which Mr. Justice Kekewich mentioned, to shew that he was bearing in view the limits of the law of nuisance. In that case said Vice-Chancellor Knight Bruce, “Both on principle and on authority the important point next for decision may properly, I conceive, be put thus : Ought this inconvenience to be considered in fact as more than fanciful, more than one of mere delicacy or fastidiousness, as an inconvenience materially interfering with the ordinary comfort, physically, of human existence, not merely according to elegant or dainty modes and habits of living, but according to plain and sober and simple notions amongst the English people ? " With regard to the noise in the present case, which had been heard frequently, the nuisance was held to be proved. “ Just conceive," said Mr. Justice Kekewich, “a tenore robusto endeavouring to teach his pupil to sing such a familiar song as' Sound an Alarm' and to reach the well-known high note. If that went on frequently, and especially if pupils in singing their scales held on to the high note for half a minute, it was impossible for plaintiffs to attend to their business.” Of course the Court will not interfere to restrain a temporary noise, but otherwise if there was a continuous noise.
. Certain gentlemen, it appears, went one day to arrive at the truth of the alleged nuisance, but Mr. Justice Kekewich thought-and this is where his valuable suggestion comes in-a more reasonable course could have been adopted. If an application had been made to him in Chambers for inspection, there would have been no difficulty in obtaining an order for procuring the independent evidence of someone, directed by the Court, to test what had been going on. If that had been done, probably there would not have been all this litigation. It might have been quite possible to make some mechanical alteration which would have prevented the noise from reaching the plaintiffs' premises. Unfortunately, that course was not adopted. The noise seemed to be clearly proved, and to such an extent that a nuisance was occasioned. The injunction was limited to the singing only, restraining the defendants, their servants and agents from allowing singing lessons to be given or singing practice to go on at particular premises in such a manner as to cause annoyance or injury to the plaintiffs in their business as auctioneers and valuers.
The Right to Fish and Profit à Prendre. The plaintiffs were grantees of the exclusive right of fishing in parts of the rivers Chess and Colne, and were trustees of the True Waltonian Society. They complained that the defendant, a railway contractor in connection with the Great Central Line to London had injuriously affected the water and the fish and spawning beds and sought an injunction and damages. The Divisional Court in this case of Fitzgerald v. Firbank did not grant the injunction as defendant had stopped his operations before trial, but considering that the trout were affected and the spawning beds also by the defendant's action, £150 damages were given. The case being taken to the Court of Appeal by defendant, some curious hair-splitting pleas were raised by him. One of the questions was, what was granted and what was the position of the grantees, The appellant's counsel averred that the grant did not include the right to carry away fish. No authority was adduced, however, in support of that contention, which was one that could not for a moment be sustained. In the old reports of Salkeld, p. 637, there was an authority that in the opinion of lawyers the grant of an exclusive right to fish included the right to carry away the fish hooked. The position of the plaintiffs was not that of mere licensees but they NOTES ON RECENT CASES (ENGLISH).
had a legal right to what was called
a profit à prendre. They had not merely an easement, and as such owners of a profit à prendre they might bring an action of trespass. The defendant had interfered with the plaintiffs' right of fishing by putting matters into the water which was injurious to the fishing and drove away the fish and injured the spawning beds, that was not causing what was called damnum sine injuria, an injury without any legal wrong, and the action was sustainable. The case appeared a somewhat unusual one. There was no precedent for what might be called an action for nuisance in respect of a right to fish. There was nothing in the defence raised, and therefore the decision of the Divisional Court stood with the damages claimed and the appeal was dismissed. The result of the decision is, therefore, that a grant of an exclusive right of fishing with rod and line will constitute the grantee the owner of a profit à prendre,
County Councils and Urban District Councils and Repair
of Sea-walls. Under the Highway Acts it is never intended that the liability imposed upon a county to contribute towards the maintenance of main roads shall include a liability to do so in the case of an esplanade or sea-wall such as the one which formed the subject of the arbitration between the County Council of Kent and the Urban District Council of Sandgate. There the question was which council was liable to pay for the repair and maintenance of the Sandgate esplanade and the groynes. The arbitrator held that the County Council should pay a certain sum to the District Council for rebuilding, but held that the wall was not part of a main road. Here the promenade was built for the benefit of the inhabitants of this watering place and as an attraction to visitors, and was not a “highway" for the