convicting such person under the section, is bound to receive evidence as to what is the general line of buildings, and to decide for himself whether the general line as fixed by the architect is the true general line. Bauman v. The Vestry of St. Pancras (36 L. J. 127, M. C.; L. Rep. 2 Q. B. 528), commented on, and St. George's, Hanover-square . Sparrow (10 L. T. Rep. N. S. 504; 16 C. B., N. S., 209; 32 L. J. 118, M. C.) upheld. Ox appeal from a metropolitan police magistrate, the following case was stated: 2. On the 21st Oct. 1869, complaint was made before me as one of the police magistrates for the metropolis, sitting at the police court of Marlborough-street, in the county of Middlesex, within the metropolitan police district, by the respondent, on behalf of the vestry of the parish of St. George's, Hanover-square, for that the said appellant, on the 10th Aug. 1869, in the said parish and county, and within the said district, did unlawfully erect a certain erection, to wit a bay-window, without the consent in writing of the Metropolitan Board of Works, beyond the general line of buildings, in a certain street, called Stratton-street, in the said parish, county, and district, the distance of such line of buildings not exceeding 50ft. from the highway, contrary to the statute in such case made and provided, and a summons was thereupon issued by me requiring the appellant to appear on the Thursday then next, at two o'clock in the afternoon, at the police court, before me or such other magistrate of the said police court as might be then there, to answer to the said complaint. 3. On the 28th Oct. 1869, being the day so fixed as aforesaid, and at the time in the said summons mentioned, the respondent and appellant appeared before me respectively at the said police court, to support an answer to the said complaint. 4. It was proved before me, and I find as follows:-That the appellant carried on the business of a builder at No. 241, Tottenham-court-road, and that he did on the said 10th Aug. 1869, on certain premises situate on the west side of Strattonstreet aforesaid, in the said parish and county, within the said district, erect a bay-window without the consent in writing of the Metropolitan Board of Works, such consent having been applied for by the appellant and refused; secondly, that George Vulliamy, who was the superintending architect to the Metropolitan Board of Works, as such superintending architect, had pursuant to the Metropolitan Management Amendment Act 1862, by his certificate, bearing date the 5th Oct. 1869, decided the general line of buildings on the west side of Stratton-street aforesaid; thirdly, that the distance of the general line of buildings so decided as aforesaid from the highway, did not exceed 50ft., and that the said bay window was beyond the said general line of buildings so decided as aforesaid; fourthly, that the appellant (who was not represented by counsel or attorney) gave no evidence as to the general line of buildings so decided as a oresaid, and I, considering myself bound by the decision in the case of Bauman v. The Vestry of St. Pancras (L. Rep. 2 Q. B. 528), to act on the superintending architect's certificate, decided accordingly against the appellant. 5. The appellant having subsequently applied to me under the stat. 20 & 21 Vict. c. 43, to state [C. P. and sign a case setting forth the facts and grounds of such determination for the opinion of your Lordship's court, and having duly entered into such recognisance, and paid such fees as by the said statute in that behalf are required, I submit to your Lordships the question whether or not I was right in so determining such complaint on the decision of the superintending architect as to the general line of buildings. 6. If your Lordships should be of opinion in the negative then the case is to be remitted to me to decide the general line of buildings so decided as aforesaid; if your Lordships should be of opinion in the affirmative, then my determination is to stand, and the case is to be remitted to me to make such orders as by the statute in that behalf are required to be made. The following were the appellant's points of argument: First, that the magistrate was not bound by the decision of the superintending architect as to the general line of buildings; secondly, that the magistrate was bound to judge for himself as to the true general line of buildings. The following were the respondent's points: The respondent will contend that the certificate of the superintending architect as to the general line of buildings being valid in form, and no evidence being given to show that such certified line was not the true line, the magistrate was bound by such certificate, at all events that he was right under the circumstances in acting on it. Field, Q.C. (A. Thesiger with him), for the appellant. The question here turns on the construction of sect. 75 of 25 & 26 Vict. c. 102, and the case raises the question whether the architect of the Board of Works has power to fix the general line of buildings, so as to be binding on all persons living in a street, or whether the magistrate, whenthe case comes before him under the section, has power to hear evidence on the subject, and disregard the line fixed by the architect, if it appear to him not to be the general line. The case of St. George's, Hanover-square v. Sparrow (10 L. T. Rep. N. S. 504; 16 C. B., N. S., 209; 33 L. J. 118, M. C.), is an authority directly in favour of the appellants; but the case of Bauman v. The Vestry of St. Pancras (36 L. J. 127, M. C.; L. Rep. 2 Q. B. 528), which has since been decided in the Court of Queen's Bench, was supposed by the magistrate to have overruled St. George's, Hanover-square v. Sparrow, and to oblige him to consider the line as fixed by the architect final and conclusive. The comments made by the court of Queen's Bench in Bauman's case on the judgment of this court in Sparrow's case certainly tend to discredit the latter; but it was not necessary for the decision of the former case to decide the point raised in the latter, nor is the actual decision in Bauman's case necessarily conflicting with that in Sparrow's case. [BOVILL, C.J. The learned judges in the Court of Queen's Bench are reported to have said that we overlooked the fact that it is the line fixed by the architect that gives the magistrates jurisdiction; that, however, is not so, as appears especially from the report of the case in 16 C. B., N. S. pp. 216 and 218.] If the architect's certificate be final and conclusive, the magistrate has nothing to do but to measure the building to see whether it comes beyond it. Moreover, the line may be fixed at any time before the hearing before the magistrate (Banman v. The Vestry of St. Pancras), and it is obviously unjust that a man, who has built before the line is fixed, should be liable to have his building pulled down without any appeal against the architect's decision. That could not have been the intention of the Legislature. [M. SMITH, J.-It is confessedly the decision of the architect that gives the magistrate jurisdiction; the magistrate then has power under the section to order the demolition of so much of the building as may be beyond the general line so fixed. Suppose, then, that, yielding to your contention, the magistrate takes upon himself to fix a line different from that fixed by the architect and finds that the building in question goes one foot beyond the line so fixed by him, but ten feet beyond the line fixed by the architect. Would he be bound under the section to order the demolition of the ten feet? WILLES, J.-No; the part is included in the whole; if he has power to order the demolition of ten feet, he may order the demolition of one.] In Wandsworth Board of Works v. Hall (19 L. T. Rep. N. S. 641; L. Rep. 4 C. P. 85), this court seems to have been inclined to uphold its ruling in St. George's Hanover Square v. Sparrow, but it was not necessary there to raise this precise point, as in that case the respondent had built beyond the line decided by the magistrate as well as the architect, to be the general line. The expression "general line' is substituted in sect. 75 of 25 & 26 Vict. c. 102 for the expression "regular line" in 18 & 19 Vict. c. 120, s. 143. But it was held that even the latter expression was not to be construed too strictly : (Tear v. Freebody, 4 C. B., N. S., 228); whereas if the contention of the respondent be correct, the magistrate would have no option but to pull down every inch that went beyond the line fixed by the architect. Huddleston, Q. C. (Streeten with him), for the respondent. The magistrate had before him the evidence of the architect on one side, and no evidence at all on the other; under these circumstances he was quite right in regarding the evidence of the architect as uncontradicted, and therefore conclusive. [BOVILL, C. J.-I cannot for a moment think that that is the question submitted to us the real question is, whether the magistrate had power to decide the line for himself and against the opinion of the architect.] He had no such power; the Act makes the architect's decision final and conclusive. The interpretation of the 75th section given by the Queen's Bench in Bauman v. The Vestry of St. Pancras, is the right one. The essence of the offence created by the section is acting contrary to the decision of the architect, and without the consent of the authorities. Field, Q. C. in reply. BOVILL, C. J.-It seems to me that the point which Mr. Huddleston contends is left to our decision is not the point which the magistrate really required us to decide. The magistrate arrived at the decision which he made, because he thought he was bound by the authority of Bauman v. The Vestry of St. Pancras, to which he has referred in the case, and he says that he decided against the appellant accordingly, and the question for us to decide is, whether he was right in so determining, in other words, whether he was bound by that decision to take the course he did. That appears from the 6th paragraph of the case, where it says, "If your Lordships should be of opinion in the negative, then the case is to be re [C. P. mitted to me to decide the general line of buildings as aforesaid." The real point, then, is whether the certificate of the architect was final and conclusive, so that the magistrate was bound to act upon it, or whether the magistrate was at liberty to exercise his discretion in the matter. There is no doubt great difficlty in construing the Act, and in discovering its true intention as to the effect of the architect's certificate. The case, however, of St. George's Hanover Square v. Sparrow, decided in this court, is a direct authority upon the point raised in the present case. The decision in that case was arrived at after a long argument and discussion, and the point was very carefully considered. That case is undistinguishable from this, and is in favour of the appellant. In Bauman v. Vestry of St. Pancras, the precise point now under discussion did not arise, because it was there agreed on all hands that the building was beyond the general line, and no question was raised as to whether it was beyond the architect's line or not. The first point there raised was as to the form of the summons, and the second, as to whether the certificate given by the architect after the erection of the building, but before the summons was taken out, gave the magistrate jurisdiction. It was assumed on all hands that the certificate of the architect was necessary to give the magistrate jurisdiction; indeed, it is obviously so, as the magistrate may order the demolition of all the building beyond the architect's line. Therefore, it being assumed and admitted that the decision of the architect was necessary to give the magistrate jurisdiction, the only point decided in that case was that this essential matter might be given at any time before the hearing. No doubt the Court of Queen's Bench proceeded to take into consideration the general scope of the Act; but the precise point that we have to determine was not before them. Cockburn, C.J., and Mellor, J., both put a general construction upon the 75th section, which was at variance with our decision in St. George's Hanover Square v. Sparrow, but Shee, J., thought that their decision was not inconsistent with ours, nor was it. Cockburn, C.J., in his judgment said, "it appears to me that the learned judges in the Court of Common Pleas, in holding that it was competent to the magistrate to fix and determine a general line different from that determined by the architect, overlooked the important fact, that it is the line fixed by the architect which gives the magistrate jurisdiction to determine whether or no the erection of the building is an offence, and that the magistrate has no jurisdiction except with reference to that line." But on reference to the report of our decision, I find that the fact was not overlooked, but it was referred to by my brother Byles on the argument, and the attention of the counsel on both sides was called to it. Further, there is the case of the Wandsworth Board of Works v. Hall, where, though it was not necessary to decide the point, this court adhered to the views expressed in St. George's Hanover-square Sparrow. In this state of the authorities, the decision in the latter case being directly in favour of the appellant, our attention is directed to the case of Bauman v. The Vestry of St. Pancras, and the language of the Act. It is impossible to deny that the language is very obscure. If it had been intended that the line fixed by the architect V. C. P.] SIMPSON (app.) v. SMITH (resp.) should be final and conclusive on all parties, I [C. P. building is finished, without hearing the parties and without giving any notice, shall be without appeal, that is a proposition so monstrous that I shall not affirm it unless compelled to do so by the express words of the Act. Again, the decision is to be given by the architect for the time being." It is consistent to hold that this means at the time that it is wanted, e.g., at the time that a prosecution is being commenced. Supposing that an architect at another time has given a different decision, there is then no way of determining the question, except by inquiring whether the buildings transgress the general line in point of fact; and before a man is made responsible to the law, the magistrate must determine whether the line last fixed by the architect is that general line. He must no doubt take the architect's decision into account, but he must not exclude all evidence as to what is the general line. It seems to me that there is no view which does not present great difficulty, but, on the whole, I prefer to abide by the construction put upon the Act by this court in St. George Hanover-square v. Sparrow. My judgment is therefore for the appellant. 66 WILLES, J.-I am of the same opinion. At the time that Tear v. Freebody (4 C. B., N. S., 228) was decided, we had to determine on the meaning of the words "the regular line," which was the expression used in 18 & 19 Vict. c. 120, s. 143, for which the expression "the general line" was substituted in 25 & 26 Vict. c. 102, s. 75, no provision having been made in the former Act for a decision to be given by the architect. It was laid down in that case that "regular" did not mean straight, but that it meant the general line, i.e., the line that would preserve a general appearance of uniformity. It was made a question of substance, not a mere matter of inches or feet. When the certificate of the architect was introduced as decisive, the language was altered from "regular" to 'general;" but I do not understand that the Legislature meant to overrule the decision in Teary. Freebody, but rather to adopt the view there expressed, and to enact that small departures from geometrical straightness of line should not have the effect of exposing a man to penalties as for a nuisance, but only such a departure as would cause an eyesore, and that there should be some latitude allowed to the judge who had to deal with the question, to decide whether the transgression was a petty matter to which the law would not apply, according to the maxim de minimis non curat lex, or a substantial departure from the general line of uniformity. This consideration is most material when we look at the decision upon the 75th section in St. George's, Hanover-square, v. Sparrow, where the departure had no substantial effect on the uniformity of the buildings, and was one which no jury would have found was beyond the regular line. But it is contended that the architect of the Metropolitan Board of Works has power to decide that the structure, which there was held innocent, is beyond the general line; but the effect of making his decision conclusive against the opinion of the magistrate would be to override the decision of this court, which held that the magistrate might exercise his discretion. I think that a wholesome decision. I see no reason why the court should go out of its way to pronounce the architect's decision final and conclusive, instead of holding it to be a decision in the first instance, and subject to the control of the general officer, before whom the matter is to go. I think it far better to hold that the architect's decision is a decision pro re nata, and, being so, that it is subject to the decision of the magistrate, so far as it affects a person whose agent the architect is not. To take an analogous case, it was held in Barraclough v. Greenhough (14 L. T. Rep. N. S. 889; L. Rep. 1 Q. B. 1), that where the probate of a will was made by statute, under certain circumstances, sufficient evidence, it should be considered as conclusive evidence of the validity of the will; but that decision was reversed in the Exchequer Chamber : (L. Rep. 1 Q. B. 612.) I hope I should be ready to refer on all occasions to the better opinion of the learned judges in the Queen's Bench if I thought their judgment showed that I had been wrong. But, in the present instance, it seems to me that the validity of our decision in St. George's, Hanoversquare v. Sparrow, has not been successfully impugned either by the Court of Queen's Bench or at the bar. The M. SMITH, J.-The construction of this obscure clause presents great difficulties, and if the matter had been res integra, I think that I might hesitate in agreeing with my learned brethren. ground upon which I feel doubt is, that it seems to me a question whether the Legislature did not intend to make the architect's decision final, leaving the other questions to be decided by the magistrate. But the question is not res integra, there being an express decision of this court in St. George's, Hanover Square v. Sparrow, and that being so, I do not feel sufficient doubt as to the true construction of the statute, to dissent from the opinion expressed by this court then and now. Any construction presents difficulties; but though I entertain a view upon the subject, which seems to me clearer than it does to others, I do not wish to dissent from the opinions expressed by my learned brethren. BRETT, J.-I assume that the magistrate in this case considered that the architect's decision was conclusive, and that he was precluded from going beyond it. That being so, it must be contended by the respondent that, though what is the general line is a question of fact, and the certificate in the present case is wrong, and can be proved to be so, and although it was given after the erection of the building, and without hearing the parties, yet the magistrate was conclusively bound by it. The respondent must be prepared to go to this length, because argument on the question is futile, unless the appellant is prepared to prove that the decision of the architect was wrong. I think it is not a true proposition to say, that a certificate so final and conclusive may be given after the building is finished and after the dispute at law has commenced. Yet both the Court of Queen's Bench and this court have held that the certificate may be given at any time before the hearing before the magistrate. A further proposition is involved, that it may be given without hearing the parties; because when the Legislature wishes that the parties shall be heard, it makes provision to that effect, and it says nothing of the kind when speaking of the decision of the architect in this case. Of course, if the statute clearly affirmed the proposition as I have stated it, I should feel bound to decide accordingly; but if it does not, I do not think that this court ought to affirm a proposition [C. P. so at variance with the ordinary rights of property and so revolting to justice. The affirmative of the proposition involves this consequence, that a man who has bought a piece of ground, and built up to the extreme limit of it (which it is his common law right to do), may be forced to pull down part of the building and leave his ground unoccupied on the architect giving a certificate, which, on the hypothesis, is wrong. That in any case seems revolting to justice, and all the more so, if it may happen without the man having a right to be heard. The question, therefore, for us to decide is whether the statute is clear in affirming such a proposition. The section begins with a prohibition, and if we take only the beginning of the section down to the words between the line of buildings and the highway," the general line spoken of may mean the actual general line. Afterwards, when the section comes to speak of the mode of dealing with the supposed offence, it says that if any building be erected, &c., without consent of the Metropolitan Board of Works (which is only required when the building goes beyond the general line) it shall be lawful for the vestry &c. to make complaint before a justice of the peace. If I am right in saying that the complaint must be that the person complained of has built beyond the general line and without consent, that complaint must be proved. If so, is this enactment that a certain matter shall be decided by a magistrate, controlled by the provision in another part of the section, as to a decision being given by the architect. No doubt by saying "decided by the architect," the Legislature may have meant "conclusively decided;" but the provision as to the decision of the architect is not made any part of the prohibitory clause, but is only introduced to show what is a necessary point to be proved before the magistrate. The question then arises whether • decided by the architect' means "conclusively decided" or only decided in the first instance. I cannot think that the Legislature has distinctly provided that it shall mean "conclusively decided,' and as, in my view, such a provision would be, as I have said, contrary to the common rights of property and revolting to justice, I think the Legislature cannot have meant conclusively decided," but only "decided in the first instance." If that be so, I do not feel pressed by the argument, that the Legislature afterwards, in the same section, gives the magistrate power, in case he shall consider the complaint proved, to order the demolition of so much of the building as transgresses "the said general line so fixed as aforesaid." Even if the question were res integra, I should come to these conclusions; but I further think that we are bound by the decision of this court in St. George's, Hanover Square v. Sparrow, which has not been expressly overruled. 66 66 " Judgment for the appellant. Attorneys for the appellant, Markby and Tarry. Attorneys for the respondent, Capron, Dalton, and Hitchins. C. P.] Friday, Jan. 27, 1871. WHINCUP v. HUGHES WHINCUP v. HUGHES. Apprenticeship indenture-Master's death-Action for return of premium-Money had and received. In an action by an apprentice for money had and received against his master's executor, the master having died within a year from the commencement of the service which was to have been for six years: Held that, in the absence of any express provision to that effect in the indenture of apprenticeship, no portion of the premium could be recovered. THIS was an action tried in the Salford Hundred Court, when a verdict was entered for 15., and leave was reserved to the defendant to move for a nonsuit. The action was brought for the whole or part of the premium, 251., paid by the plaintiff on apprenticing his son to the defendant's testator, a watchmaker. The term of apprenticeship was six years, and at the end of the first year the master died. The instruction of the apprentice by the testator ceased on the 14th July, 1869. The first two counts were framed upon the indenture of apprenticeship, and the residue of the declaration was for money had and received for the use of the plaintiff and for accounts stated. The indenture was made the 26th Nov. 1868, between George Whincup the younger of the first part, the plaintiff of the second part, and Thomas Rogers Hughes, of Manchester, watchmaker and jeweller (the defendant's testator), of the third part, and witnessed the apprenticeship of George Whincup the younger to T. R. Hughes (the master) for the term of six years, to be computed from the 31st July then last past. The plaintiff, George Whincup the elder, for himself, his heirs, executors, and administrators, covenanted that he, his executors, or administrators, should and would, on the execution of the indenture, pa to the said master the sum of 25l., as by way of a premium on the indenture of apprenticeship, and should and would during the said term find and provide for the said apprentice good and sufficient, respectable, suitable, and proper meat, drink, washing, lodgings, clothes, and wearing apparel, also medical and surgical aid and medicines and attendance in case of sickness or accident. "And in consideration of the due and faithful services to be performed by the said apprentice, and of the covenants of the said George Whincup the elder hereinbefore contained, and also in consideration of 251. sterling on the execution hereof, paid by the said George Whincup the elder to the said master, the receipt whereof is hereby acknowledged, he the said master doth hereby for himself, his heirs, executors, and administrators, covenant with the said George Whincup the elder, his executors and administrators, and also with the said apprentice, that he the said master shall and will during the said term teach and instruct, or cause to be taught and instructed, the said apprentice in the said trade or business of a watchmaker and jeweller, in all its various branches as carried on by the said master, according to the best of his skill and ability. And also that he the said master shall and will (except during such time as the said apprentice shall be absent from the service of the said master by reason of sickness or from any other cause) pay unto the said apprentice weekly, as and for his hire, wages during" the first year, 4s. a week; during the second, 5s.; during the third, [C. P. 68.; during the fourth 78.; during the fifth, 98.; and during the last year 10s. a week. The learned judge at the trial said, "The question which remains for decision is whether the plaintiff can recover from the defendant, as executrix to one Hughes, with whom the plaintiff was serving as apprentice at the time of his death, a portion of the premium paid to Hughes by the plaintiff. I think he can. It was contended on behalf of the defendant that as the plaintiff received some part of the consideration for which the premium was paid, although not the larger part, he could not recover the money paid for it, for in order to entitle him to do so the failure of the consideration must be complete; but I think it was hardly denied that where the consideration is severable, complete failure of part may form a ground for recovering a proportionate part of the money paid for it. Now, although it cannot be denied that there is considerable difficulty in severing the consideration in such a case as this, it does not appear to me to be impossible to do so, and I think the plaintiff may recover such part of his premium as a jury may think he is entitled to. I think, too, I am concluded by the authority of Cottenham, L.C. (see Hirst v. Tolson, 19 L. J. 441, Ch.), who seems there to have decided this very question. There will therefore be a verdict entered for the plaintiff; and as the question of amount was by consent left to me, I think the verdict should be for 151. The defendant will have leave to move one of the superior courts to set aside the verdict and to enter a nonsuit." G. B. Hughes accordingly obtained a rule nisi calling upon the plaintiff to show cause why this verdict should not be set aside and a nonsuit entered, on the ground that neither the premium paid at the commencement of the apprenticeship, nor any part of it, is recoverable back, the consideration for its payment not having failed either wholly or as to any apportionable part. J. IV. Mellor showed cause against the rule.There are many cases in which attorneys and their executors have been ordered to pay back part of a premium under circumstances of this kind, e. g., Ex parte Prankerd (3 B. & Ald. 257). In another case, Hirst v. Tolson (2 M. & G. 134, and 19 L. J. 441, Ch.), although the master was an attorney, Lord Cottenham expressly based his decision on common law principles applicable to all apprentices. The duty to instruct was made by the deed here to continue throughout the apprenticeship; and the increased advantage obtained by the master generally in the later years is compensated by the agreement for an increase of wages. [BRETT, J.-Would it be the same if the apprentice had died?] No; the master would then have still continued to be ready and willing to carry out his part of the contract: Atwood v. Maude, L. Rep. 3 Ch. App. 369; Cooper v. Simmons, 7 H. & N. 707; 5 L. T. Rep. N. S. Hughes supported his rule.-There is no case to be found of an ordinary apprenticeship to which this action has been held to apply. In Hirst v. Tolson the decision was founded on a mistake, and ordered to return part of a premium, it has been in all the other cases in which attorneys have been admitted that no action would lie: Hunt v. Silk, 5 East. 449 ; Park on Insurance, "Premium," p. 585; |