February 4, 1899.
THE ESTATES GAZETTE
172
fixture, because it was glued to the floor, and went on to say that he was also tenant of a small shop, which was really part of the premises in question, at 9s. a week. One was taken first, and the other acquired later.
The case, of course, for Mrs. Warren was that the goods were not fixtures at all.
Mr. Welsh elicited from witness that the counter was described in the particulars of the counterclaim as a “ moveable ” counter, that witness had seen linoleum glued to the floor before, and that while the removal of the arc lamps did not interfere with the electrical plant he regarded the lamps as fixtures and a part of the plant. To remove them necessitated the cutting of the wires.
By Mr. Welsh: There was no notice in the windows on the day the bailiffs first went—-Saturday, October 1—stating that “ This business is transferred to 251, Fulham-road.” (The object of this question was to endeavour to prove that, even were fixtures removed, the removal had not necessarily been prejudicial to the business of the firm.)
It was stated that the witness Kirk, in a letter to plaintiff’s solicitors, had spoken of “their illegal conduct in maliciously removing” goods. Witness now stated that a lodger of the plaintiff, named Davey, was present at the distraint, and when witness came in he found him tearing the fittings down. Davey, witness asserted, said, “It was their intention to ruin us and smash us up, and he would spend £100 in doing it.”
Mr. Welsh: I never heard of him. He has nothing to do with us at all.
Witness, in further answer to Mr. Welsh, said that nothing was stated by the bailiff about witness replevying if he wished to.
His Honour asked Mr. Welsh in what respect he considered an arc lamp, if it was not a fixture attached to the premises.
Mr. Welsh replied that he regarded it in the same respect as a gas globe, as a piece of removeable property.
His Honour: But surely a lamp is a fixture when it is fixed to the wall.
After some other evidence had been given, Mrs. Warren was sworn, and said that she did not specifically authorise the bailiff to take anything in particular. She put him upon the premises, and she imagined that he knew his work much better than she could tell him.
By Mr. Richard : The bailiff might have said, “If I leave these things up here (referring to the articles mentioned in the particulars), and if I sold them the people who bought them would not be able to take them away without committing a trespass; therefore I will have them conveyed to the auction room.”
Mr. Richard pointed out that as this was evidence for the defence in the counterclaim, he had to examine this witness as against Mr. Fisher, and he also had to cross-examine her on behalf of the third party. He hoped that she would discriminate between the process (laughter).
Witness then, in cross-examination, said that she saw the notice of removal in the shop window on the Saturday, and that the goods which were claimed as fixtures were removed without any damage whatever to the property.
The bailiff, Alan Lockhart, of 651, Fulham-road, then went into the witness box. He stated that the ebonised window was fastened by three screws, was a window in temporary construction, and was screwed to the marble, which originally belonged to the original butcher’s shop. Witness took out two screws, and his man took out the other. He should say the window was a fitting and not a fixture. No damage was done to the woodwork in removing the brackets of the outside lamps. They were also fastened with screws, and they could be reinstated with the same facility with which they were removed. The counter was a small thing—it was hardly like a counter, and he should say it had not been used as such—• it lay overturned on the floor like a chair. Witness said to Kirk, “ Shall you exercise your right to replevy, because if so I shall sell these things without removal?” He originally, as he intimated to Kirk, intended to sell the four ticked articles in that way, and he thought that Mrs. Warren or the incoming tenant should have them. However, when he later saw that they could not any of them be touched after purchase, if left on the premises, without involving a trespass, he removed them. The “ fixtures ” did not affect any part of the structure in any shape or form.
His Honour intimated that, although he thought in the beginning of the case that these articles were fixtures, he had found as it proceeded that they were not. He found for the defendant (Mrs. Warren). He could not see that there was any damage in a structural sense.
Mr. Richard was proceeding to ask for costs, when
Mr. Welsh said, “I think it is ladies first, your honour,” and went on to ask for costs of all proceedings in the High Court and there, in the action on the counterclaim.
The Clerk of the Court stated that Mrs. Warren would have costs on the counterclaim, and third party costs.
neighbourhood, in which the defendants asserted that the public had some right over the land. On October 17 there was a serious riot in consequence of the agitation, with which, however, he did not associate the defendants. The five defendants, Messrs. Polkinghorn, Ellis, Hawkins, Treacher and Martin, had formally, on the previous day, asserted the right claimed by forcibly removing a portion of the fence, and then entering upon the land and strolling about the golf rink.
Mr. Hunt, the president of the club, proved the tenancy, and Edward West, reserve inspector of police, was called to prove the proceedings on Saturday, October 16, 1897, when he attended at“One Tree Hill, with one or two constables, and took the names and addresses of the defendants. They said that they intended to assert their rights by removing the fence. They then took down nine palings, and went on to the land, and strolled about the club premises, and after a quarter of an hour went quietly away.
Mr. Justice Romer: Now, Mr. Martin, the plaintiffs have proved their possession, and it is for you to prove your right to go on the land.
Mr. Martin said his case was that this land was a portion of a Royal common. He did not know that he could prove it better than by the production of a history of the County of Kent for a period dating back 900 years, from which he could show that this land belonged to an old priory. It was part of what was known as Westwood Park, and this particular spot was known as the Wilderness.
Mr. Justice Romer said he was afraid that would not help the defendants. It showed how serious a thing it was for people to involve themselves in legal disputes unless or until they were very sure of their ground.
Mr. Martin then went into the witness box and made a statement of what he knew of the facts. He said he, being 35, had known the locus since he was ten years old, and had been in the habit of entering with his companions in several directions.
Cornelius M'Carthy said he had known the land for 45 years, and had never been interfered with, though he was constantly to and fro on it.
Further evidence was called, but in the result the Judge said that the defendants had not made out their case. They had not established the existence of the various paths over which they asserted a right of way, and therefore the plaintiff’s action succeeded, and there must be an order accordingly with costs against the defendants.
BROMPTON COUNTY COURT.
January 17.
(Before His Honour Judge Stonor.)
ALTEGED WRONGFUL CONVERSION.
KIRK AND 00. V. WARREN ; LOCKHART THIRD PARTY.
This case was heard by His Honour Judge Stonor, in a remitted counterclaim from the High Court pursuant to an order of Master Archibald, dated November 9, 1898. The original claim was one for rent. The defendants in that action, who were Messrs. H. Kirk and Co., electrical engineers counterclaimed against the plaintiff, Mrs. Arabella Warren, on the allegations that plaintiff, on or about October 1, 1898, wrongfully converted to her own use trade fixtures, by which the plaintiffs were impeded in carrying on their business. The fixtures as specified (and which were removed by the bailiff) were a 10ft. 3in. portable counter, linoleum, ebonised window and glazed doors and two outside electric arc lamps. The defendants counterclaimed damages for conversion at £100. The bailiff was brought into the case as third party by the intimation that the plaintiff claimed to be entitled to a contribution from him to the extent of the whole of the sum which the defendants might recover against her. It was claimed that she was entitled to be indemnified by the bailiff against any loss or damage sustained by her by reason of any illegal or excessive distress made by him on the defendants’ goods.
Mr. Fisher was counsel for defendants (the plaintiffs in the counterclaim) ; and Mr. Welsh and Mr. Richard (instructed by Mr. Frederick Du Bois, 10, Ooleman-street, E.C.), were for plaintiff (defendant in the counterclaim) and the third party respectively. The premises on which distraint was levied were at 140a, Fulham-road.
Mr. J. Harbenson Joseph Kirk, senior, of 99, Drayton-gardens, Fulham-road, said that he was one of the partners of the firm, and that he looked after the financial part of the business, while his son was the electrical engineer. When the bailiffs distrained for rent they took away fittings which witness regarded as trade fixtures. They cleared them out—stripped the shop.
By Mr. Fisher: He entered a protest, and he told the broker that the distraint was illegal, and that he should hold him responsible for it.
Witness declared that the linoleum was a
January 24.
(Before Mr. Justice Bucknill and a Common Jury.)
LANDLORD AND TENANT: ACTION FOR TRESPASS.
DYKE v. TAFFT.
This was an action brought to recover damages for trespass and wrongful seizure of the plaintiff’s goods.
Mr. Marshall Hall, Q.C., in opening the plaintiff’s case, said the plaintiff was an actress, and acted under the name of Miss Dorothy Campbell. In 1896 she heard that a house in Harcourt-terrace, Brompton, was to let at a rental of £75 a year. On July 3, 1896, an agreement for tenancy was entered* into for three years. After the agreement was entered into she took possession, and paid her rent up to the March quarter of 1898. Finding that she could not pay the rent, she wrote to Mr. Tafft, and it was agreed that the rent should stand over. On May 19 the defendant wrote saying she must pay gas and water rate, thus showing that he had agreed to the rent standing over. The plaintiff had a quantity of furniture on the purchase and hire system, and the dealer who lent the furniture took it away, as she could not show her receipt for rent. Shortly after the plaintiff left for Deal on a short visit, leaving some of her own furniture and dresses in the house. When she came back she entered the front door with her latchkey, but found all the rooms locked against her, and a notice-board up outside saying the house was to let. She then left the house, and returned in a few days to find that the defendant had put a man in possession, and seized all her stage dresses. The plaintiff called upon the defendant and complained, and then consulted her solicitor, who tendered the quarter’s rent due before issuing the writ in the action. He knew it would be said that, under the agreement, the defendant could take possession if rent was in arrear for 21 days, but it did not say without demand, and there had been no demand for rent in this case.
Miss Dorothy Lilian Dyke, called, said she was an actress, and her stage name was Miss Dorothy Campbell. She paid £143 to furniture dealers for furniture on hire. That furniture was confiscated. She had other furniture in the house and clothing. Her dresses would have taken £150 to replace, and she had paid about that for them. When the defendant called on her in May she said she could not pay the rent till June or July. The defendant said he felt sorry for her, and that she was to pay when she got a better engagement. She told defendant she owed tradespeople and others, but they were not worrying her. The defendant said she was to let him know when they worried her, and he would send someone to protect the furniture. She left on a visit. When she returned she found the house locked up, her clothes removed, and also her private papers.
Mr. Poyser, for the defendant, said that he did not admit the agreement to postpone the payment of rent. The defendant had a right under the agreement to act as he did. He had removed the plaintiff’s dresses, which were packed away in boxes to be carefully kept until the rent was paid up to June 6, with £10 for dilapidations.
At this stage of the proceedings both counsel agreed to leave the case to the learned Judge.
Mr. Justice Bucknill said, taking into consideration the fact that there had been no demand for the rent, nor any waiver of the demand, and that the house was not vacant, he thought that the justice of the case would be met by giving judgment for the plaintiff for £25 and taxed costs of High Court scale, and for the return of her goods. The plaintiff to give up possession of the house.
Mr. Marshall Hall, Q.C., and Mr. Statham appeared for the plaintiff; Mr. Poyser for the defendant.
January 26.
(Before Mr. Justice Romer.)
THE ONE TREE HILL DISPUTE.
HUNT V. POLKINGHORN.
This was an action arising out of certain riotous proceedings, which took place on Sunday, October 17, 1897, when certain persons, some of whom are now defendants to the action, it is alleged, broke down the fence and asserted a right on the part of the public to the free use of the land for recreative purposes and for a right of way over it.
Mr. Nevill, Q.C., Mr. Macmorran, Q.C., and Mr. Ryland appeared for the plaintiffs.
Mr. Macmorran, opening the plaintiffs’ case, said it was an action in which Mr. Hunt and others, the plaintiffs, held certain lands in the neighbourhood of Honor Oak, including the lands in question, in trust for the Honor Oak Golf Club for golfing purposes, as yearly tenants under agreements with various owners at annual rents amounting to £200. This golf link they had enclosed with a fence, and after this was done there was an agitation in the
QUEEN’S BENCH DIVISION.
January 20.
(Before Mr. Justice Bruce and Mr Justice Ridley.)
TRESPASS IN MINES : STATUTE OF LIMITATIONS.
IN RE AN ARBITRATION BETWEEN THE ASTLEY AND
TYLDESLEY COAL COMPANY AND THE TYLDEiLEY
COAL COMPANY.
This was a special case stated by an arbitrator raising an interesting question with reference to the application of the Statute of Limitations to cases of trespasses underground.
Mr. Asquith, Q.C., and Mr. Clare appeared for the Astley Company; while Mr. M'Sweeney represented the Tyldesley Company.
It appeared that the parties worked adjoining collieries, and that the Tyldesley Company had trespassed on two occasions upon the mineral area of the Astley Company. The first trespass was made in 1878, and became known in 1888, while the second was made in 1880, and came to the knowledge of both parties in 1895. The Astley Company made a claim against the Tyldesley Company to the extent of about £40,000 for coal taken and damage by percolation. The claim was referred to arbitration, and the Tyldesley Company pleaded the Statute of Limitations. The points stated for the opinion of the Court were whether the Statute of Limitations applied in the circumstances of the case, and whether, the case having been referred to arbitration, the Tyldesley Company were entitled to plead the statute.
Mr. Justice Bruce, at the conclusion of the arguments of counsel, said in his opinion the Statute of Limitations applied in the present case unless there was concealed fraud, and the arbitrator had not found anything from which he could infer that there had been a concealment of fraud. As to the point whether the Tyldesley Company were entitled to set up the Statute of Limitations, that depended entirely on the construction of the submission to arbitration. He found nothing in the submission to take away from the Tyldesley Company their legal right to plead the statute, and it would be unreasonable to hold that if a party referred a matter to arbitration he thereby precluded himself from raising a legal defence. The questions left to the Court would be answered accordingly.
Mr. Justice Ridley concurred.
(Before Mr. Justice Lawrance and Mr.
Justice Channell.)
LONDON BUILDING ACT, 1891: UNITING A BUILDING.
WOODTHORPE V. SPENCER AND ANOTHER.
It was stated that in this case the proceedings were initiated by the London County Council in consequence of the disastrous Cripplegate fire, when great damage was done because the flames spread through openings connecting different buildings. The appellant, Wood-thorpe, who	is	in the employment
of the Council, is the district surveyor, under the London Building Act of 1894, for the northern division of the City, and he summoned before one of the City aldermen the respondent, Mr. J. A. Spencer, for having, between December 21, 1897, and January 5, 1898, contrary to the provisions of the statute, united a building known as Nos. 45a and 46a, Basinghall-street, with a building known as No. 4, London-wall-avenue, and ihe other respondent, Mr. J. Husbands, with having aided and abetted in the commission of the offence. The Building Act provides that buildings shall not be united except where "they are wholly in one occupation or are constructed or adapted to he so, and it appeared that between the dates in question an opening, or doorway, was made between the two buildings on the first floor, in spite of the appellant’s refusal to sanction such a change. This was said to be an offence against the Act; hut it appeared that the original lease from the freeholder of the land required that there should he an opening from end to end through the buildings connecting Ba׳singhall-street with London-wall-avenue, and that the ■building was originally erected with an opening in the wall between the two houses on the ground floor so as to he available for occupation by one ■or more tenants. To meet the requirements ■of the tenants, this opening׳ was afterwards closed up, and an opening, according to the appellant, illegally made on the second floor. Afterwards, the respondents, who occupied between them the two buildings, made the opening on the first floor now complained of. The alderman dismissed the summons, and the County Council now appealed.
Mr. Horace Avory and Mr. Daldy appeared for the County Council; Mr. R. Cunningham Glen for Mr. Spencer; and Mr. George Elliott for Mr. Husbands.
The Court thought that the decision of the alderman was right, and must be affirmed.
The appeal was therefore dismissed jyith costs.