C. P.]

were most ably argued by counsel, and especially so, there as here, by the junior counsel for the respondent, Mr. Mac Dermot. I have not given any opinion upon the questions since, but I have heard and concur in the judgment delivered by my brother Lawson, and in a grave constitutional question, such as this undoubtedly is, involving the knowledge not only of the law, but of the history and constitution of England, unfettered by small legal technicalities, I with confidence rest my judgment on that which my brother Lawson has delivered, supported and sustained as it is by that of my brother Morris. I regret that there should be any division of opinion in the court, but I cannot discern this momentous case by the lights or authorities which my Lord Chief Justice has brought to bear upon it; and I rejoice that the conclusion at which the court has arrived is fortified by the authority of that great jurist and magistrate, Lord Denman, Chief Justice of England, who, when he believed that the liberties of his country were in danger, knew how to use words fit for the occasion and calculated to arrest the attention of the people of England. I stated, in the case submitted to this court, and for the purpose of the questions I reserved, that the electors of the county of Galway had been intimidated by threats and denunciations of temporal injury and of spiritual punishment. I stated that in the case which now rests before us. I now, sitting on this bench, which I am warned that I occupy at the will and in subordination to powers other than my Sovereign, here declare that I have been obliged to consider this case and to deliver this judgment, namely, that Capt. William Le Poer Trench is entitled to be declared the representative of the county of Galway,-under many terrible threats and denunciations, public and private.

Order accordingly, adjudging in the affirmative on the questions reserved, respectively. Agent for the petitioner, J. B. Concannon. Agent for the respondent, T. Higgins.

COURT OF COMMON PLEAS. Reported by H. H. HOCKING, H. F. POOLEY, and R. A. KINGLAKE, Esqrs., Barristers-at-Law.

June 4, 5, and 6, and July 5, 1872. WINCH v. CONSERVATORS OF THAMES. Negligence-Towing path-Taking toll-Liability to repair.

The defendants were incorporated under private Acts of Parliament for the purpose of maintaining and protecting the navigation of the river Thames. They had power to acquire, for the public use, the towing paths along the river, and also to maintain and repair the same. In the exercise of their powers, they had provided a towing-path for the use of the public, they invited the public to use it, and took toll, as they were authorised to do by their Acts, for the use of it. Held, that the defendants were bound to take reasonable care that the towing path was in a reasonably fit condition to be used as a towing path, and that an action lay against them for neglecting this duty, whereby the horses of the plaintiff, who was lawfully using the towing path with his horses, and had paid them toll in respect thereof, fell into the river and were drowned.

[C. P.

THIS was an action to recover damages in respect of three horses which slipped into the river Thames and were drowned while towing a barge up the river. It was contended by the plaintiff that the accident happened owing to the rotten state of the banks of the river at a part where the towing-path ran close to the water's edge.

The defendants were a corporation constituted by 29 & 30 Vict. c. 89 for the purpose of maintaining and protecting the navigation of the part of the river Thames where the accident happened. The plaintiff had paid the defendants toll for the use of the towing-path with his horses.

At the trial, before Cockburn, C.J., at the spring assizes at Kingston, it was urged by the defendants as a matter of law that they were not bound to repair and maintain the towing path, so as to be responsible to the plaintiff for a loss sustained by him through a default on their part to perform this duty.

The learned judge left the questions of fact to the jury, who found for the plaintiff, that the towing path and banks were not in a proper condition relatively to the purpose and proper use of them as a towing path; that this was the cause of the accident to the plaintiff's horses, and that there was no neglect in the navigation of the barge or in the management of the horses. They assessed the damages at 1007., whereupon a verdict for the plaintiff for that amount was entered, leave being reserved to the defendants to move to have this verdict set aside, and a nonsuit or verdict for the defendants entered, if the court should be of opinion that the defendants were under no legal liability to repair and maintain the towing path. A rule having been obtained accordingly.

Denman, Q.C. and Macleod showed cause. Hawkins, Q.C. and Joyce supported the rule. The arguments sufficiently appear in the judg ment. They turned for the most part on the provisions of the Acts under which the defendants were incorporated.

Cur. adv vult.

July 5.-BOVILL, C. J., delivered the judgment of the court, (Bovill, C. J., Byles and Brett, JJ.)— The defendants in this action were charged with negligence in the management and control of a portion of the banks and towing paths of the river Thames, and in not keeping and maintaining them in a reasonably safe and proper condition for the purpose of towing barges, whereby certain horses of the plaintiff employed upon the towing path in towing a barge and for the use of which towing path toll had been paid to the defendants, fell into the river and were drowned. The principal question of law which arose at the trial and was reserved for the consideration of the court. was, whether, under the Acts of Parliament which regulate the upper navigation or by force of those Acts and the application of the common law, the defendants were under any legal liability with respect to the maintenance and repairs of the towing path on the river bank. The defendants are a corporation constituted for the purposes of the upper navigation of the Thames by the Thames Navigation Act 1866, having been originally incorporated for other purposes by the Thames Conservancy Act 1857. By the Act of 1866, sect. 26, the previous Acts relating to the upper navigation were to remain in force and to be construed as if the present body of conservators had been named therein instead of the former commis

C. P.]

sioners, and it therefore becomes necessary to examine the provisions and the language of the earlier statutes. The first statute which appointed Commissioners, the 24 Geo. 2, c. 8, in the preamble refers to abuses by the owners of the towing paths and other passages on the banks of the river. Sect. 2 gives powers to the commissioners to settle amongst other things the rates to be taken by the tenants or occupiers of the towing paths, locks, &c., and to regulate the towing paths, &c., for the benefit and safety of the navigation, making compensation to owners or occupiers of mills or lands, and they were also to give such reparation, satisfactions and damages to persons grieved as to them should seem meet, but with an express proviso by sect. 3 that they should not change the towing paths or landing places without consent of the land owners. The 4th section provided for the mode of proceeding by the commissioners in making orders. By sect. 8 power was given to the commissioners to view the towing paths, &c., to inquire into their state and condition and to make orders thereupon, giving notice to the persons concerned of their intended orders. Sect. 9 imposed a penalty on persons disobeying the orders of the commissioners, and by sec. 11 parties aggrieved by any such orders might within eight months appeal against them to the Judges of Assize or of Nisi Prius in Middlesex. The next Act was the 11 Geo. 3, c. 45, the title of which was for improving and completing the navigation, and it refers to the abuses and exactions of the owners of several towing paths and other passages on the banks of the river and of the locks, &c.; it also refers to an estimate which had been made of the expense of (inter alia) embanking divers parts of the river, and for purchasing land for the making of towing paths in order to complete the navigation; and by sect. 7 power is given to the commissioners to purchase and make towing paths, &c., for towing with horses or otherwise; to settle the rates to be taken for the use of the towing paths, &c., by the tenants or occupiers of the same, and they were to have regard (amongst other things) to the expense of repairing and supporting the towing paths, &c., and to make orders as to the towing paths, &c., making satisfaction to the owners of mills and lands, and giving reparation, satisfaction, and damages to parties aggrieved in the same terms as in the former Act. By sect. 19 they had power to view the towing paths, &c., and the state, condition, reparation, and circumstances thereof, and to make orders as in the previous statute, giving notice of their intention to do so to the persons concerned, and by sects. 28, 29, and 31, the commissioners acquired compulsory powers to purchase property necessary for the purposes of the Act, subject to certain consents in the cases specially mentioned in sects. 31 and 33, and such purchases by sect. 28 might be made in consideration of a sum in gross or of an annual rent to be secured as mentioned in the Act, and the contracts, conveyances and assurances were to be enrolled with the clerk of the peace. The commissioners had very large powers conferred upon them for regulating not only the navigation but also the tolls and lock dues as well as the rates for carriage of goods and hire of horses upon the river, and they were invested with authority to determine all complaints subject to appeal. It also appears from the 24th section, as well as from the 7th section, that in some places there were at that time no horse tow

[C. P.

ing paths, and that the towing had there been done by men, but that the extension of the horse towing path was then contemplated. There are powers given to the commissioners to borrow money on the security of the tolls, and by sect. 55 there is a general power to appeal to the quarter sessions against any orders of the commissioners. The next Act which is material is the 28 Geo. 3 c. 51. The preamble refers to money having been raised and expended in making horse towing paths, &c., and by sect. 2 the tolls and moneys to be raised or paid under that Act or the former Acts and the property in the lands and works erected or purchased by the commissioners were vested in them, and they were empowered to sue and prosecute for injury to any of the towing paths, &c., by virtue of the Acts, purchased, rented, hired, or used for the benefit of the navigation. By sect. 5 they had further borrowing powers conferred upon them, and by sect. 6 it is enacted that for providing a fund for securing the money borrowed with interest and for repairing and maintaining the navigation the commissioners shall have full power to settle and direct the taking of such tolls and rates as they shall think necessary within certain limits for barges and also for horses used in towing for the use of (inter alia) the towing paths and ways then or to be thereafter made, purchased, or hired by the commissioners on the navigation. The commissioners by sect. 18 had power to make bye-laws as to the rates for towing, for the use of any towing paths and for carrying or repairing and regulating the navigation subject to the general power of appeal given by sect. 24. By the 35 Geo. 3. c. 106, s. 18, further powers were given to five of the committee to survey and view the river and to hear and examine evidence as to the state and condition of the navigation and the wants of repairs, amendments, alterations and improvements therein and to make reports to the general meetings of the commissioners of all alterations, improvements, repairs, and other works which they should think needful or proper to be done at any place or places for the benefit and improvement of the navigation, and to cause estimates to be made of the expense of doing such works; and when the commissioners ordered any works, the committee of five of them might take on themselves the management, direction, and execution of them, and give orders to the surveyors and others to proceed in the execution of such works, and the expenses after having been reported and allowed by a general meeting of the commissioners werc to be paid out of the moneys raised under the Acts. By sect. 22 the commissioners were to make satisfaction to parties aggrieved, damaged, or injured by the works, and with a power of appeal as there provided. The 23rd section authorised the purchasing and making by the commissioners of a free continued uninterrupted and public horse towing path throughout the whole of the navigation without interruption or impediment; the commissioners making compensation for the lands taken, and for all losses and damages by reason of the taking of lands or grounds for making a towing path, way, or road for the use of the navigation. The next and last Act was that by which the powers, rights and duties of the commissioners were transferred to the present defendants, viz: The Thames Navigation Act, 1866. The title of that Act is for vesting in the Conservators of the river Thames the conservancy of the upper part of the river, and

C. P.]

some of the objects for which the defendants were thereby incorporated as mentioned in the preamble were, "The preservation and improvement of the streams, bed and banks of the upper part of the Thames as a matter of great local and public importance." The Act recites that the locks and works under the previous control of the commissioners were in a very bad and dangerous condition, and that their income had long been insufficient to defray the necessary expenses of the repair and maintenance of the locks and works, and that considerable debts had been incurred by the former commissioners. By sections 25, 26 and 30 the powers, authorities, rights and interests, duties and obligations of the former commissioners were transferred to the defendants. As to certain locks, dams and weirs existing on the navigation before the passing of the Act of 1866, the owners of them were entitled to take toll and were bound to repair them, but by this Act the traffic was relieved from the tolls payable to these private owners, the property in these locks, dams and weirs was transferred to and vested in the defendants, and the obligation to maintain and repair them was by express words imposed upon the defendants. By sect. 55 the defendants were authorised to take tolls and charges for the navigation, and under sect. 70 to borrow money on the security of the tolls, and their funds were to be applied by the defendants under sect. 88 (1) inter alia in defraying the expenses of the repair and maintenance of the works vested in, or acquired, or constructed by them by or under that Act, and (6) in carrying into execution the purposes of that Act. There are no words directly imposing the obligation to repair the banks and towing paths upon the defendants, as is the case with respect to the locks, dams and weirs by the 43rd section, but then the towing paths and the right to take tolls for passing along them are not absolutely transferred to the defendants in the same manner as the locks, dams and weirs, so that there was no necessity for any such express enactment with respect to the towing paths, and the powers, rights, duties, obligation and liability of the defendants with respect to the towing paths and banks must be ascertained by reference to the provisions of the former Acts as well as to the general scope and language of this Act. It appears from the earlier Acts already mentioned that originally there were owners and by subsequent Acts tenants or occupiers of towing paths who took toll for horses passing along them, and that such persons were bound to keep the towing paths in repair, and by those statutes the commissioners had extensive powers of supervision and control over the towing paths, and power to make orders respecting them, and to regulate the toll to be taken by the persons entitled to take it. They subsequently acquired power to purchase and take lands compulsorily, and to execute works for the purposes of the navigation, and by the Act of the 28 Geo. 3, c. 51, sect. 6, were authorised themselves to take tolls for (amongst other things) the towing paths purchased or hired by them, and there are similar expressions in the next section as to towing paths purchased or hired by the commissioners. By the later Act of the 35 Geo. 3, c. 106, sects. 18 and 23, they obtained power to execute any works or repairs that they thought needful or proper, and to pay for them out of the rates and tolls, and also to make and establish a continued horse towing path throughout the navi

[C. P.

gation, and to purchase land for that pupose. And by the last Act of 1866 the present defendants are authorised to take the tolls, and by sect. 88 are bound to apply their funds, first, in defraying the expenses of the repair and maintenance of the works vested in, acquired, or constructed by them under that Act, and secondly, in carrying into execution the purposes of that Act which, as it incorporates, necessarily includes, the purposes of the former Acts. Those purposes, as stated in the preamble of the last Act, as well as in the former Acts, are the preservation, repair, maintenance and improvement of the navigation, and which would we think include the banks and towing paths. The defendants in pursuance of the powers vested in them, made arrangements in 1866 to secure the use of the towing path at the place in question for the purpose of the naviga tion, and it was agreed on the argument that the defendants under that arrangement now pay an annual rent per rod to the owner of the soil of the towing path and take an aggregate toll in one sum at Teddington Lock for the use of the entire navigation and towing paths, and it is to be taken as a fact that the defendants have under the provisions of the statute acquired and have the use of the whole of the towing paths along the river, and the right to take toll in respect of the use of them as well as for the use of the navigation generally. Somewhat similar Acts of Parliament were under consideration in the case of Badger v. The South Yorkshire and River Dunn Company (1 El. & El. 349), and the Navigation Company there, as in this case, appeared to have paid an annual sum to the owner of the towing path in order to secure the use of it for the public. It was considered by the Court of Exchequer that the company had thereby acquired the soil in the towing path, but this decision was afterwards reversed by the Exchequer Chamber, and that court decided that the company had acquired only an easement over the towing path such as was necessary for the purposes of the undertaking, and that the arrangement for the payment of an annual sum was a purchase within the meaning of the statutes. The Court of Exchequer Chamber also laid down that generally speaking in the absence of express words the courts were not inclined to infer that statutes of this kind gave more than such an use of the soil as was necessary for the purposes of the navigation, and a similar view was taken by the Court of Exchequer in the case of Stracey v. Nelson (12 M. & W.) with respect to commissioners of sewers. It is quite true that the arrangement in the present case between the commissioners and the owner of the towing path was by parol only, but the owner of the land letting the right to use the towing path and receiving a rent for it must be taken to know the powers of the conservators and to have assented that they might do that which was necessary to enable the public to have and enjoy the use of the towing paths, including the power to repair them, upon the same principle that when the use of a thing is granted every thing is granted by which the grantee may have and enjoy such use (Pomfret v. Ricroft 1 Wms. Saund. 322), and with respect to a question which was raised as to what is to be deemed the towing path, it seems to us that it is impossible to confine it to the mere beaten track which is described to have been made principally by single horses towing down stream, for in towing up stream the

C. P.]

horses cannot always be in a direct line, and there must be space for them as well as for the driver and for the proper use of the tow line, and we think the towing path must be taken to include so much of the bank as is necessary and proper for the purposes of towing barges, and is reasonably and properly used as such, and which in this case would include that part of the bank which gave way. The defendants having acquired the towing path in the manner before mentioned for the use of the public subject to the payment by the public of the toll to them, they invited the public to use the towing paths and to pay them the tolls. They have also employed their superintendent and their engineer from time to time to inspect and report on the banks and towing paths, and it was proved to be part of the duties of the engineer to see if the banks were being washed away. The plaintiff in this case was lawfully using the towing path with his horses in towing a barge for which the proper toll had been paid to the defendants and for the purpose of the navigation. It was alleged by the plaintiff that the towing path was in an unsafe and dangerous state and that in consequence his horses fell into the river and were drowned; whilst the defendants alleged that the bank was in a safe and proper condition and that the accident arose from the sole fault of the driver of the horses or of the man who had charge of the barge. No question was raised (indeed upon the evidence there was no ground for contending) that if the bank was in a dangerous state and it was the defendants' duty to maintain it, they had been guilty of negligence in that respect. The case having been left to the jury, they found that the towing path and banks were not in a proper condition relatively to the purpose and proper use of them as a towing path; that this was the cause of the accident to the plaintiff's horses; and that there was no neglect in the navigation of the barge or in the management of the horses. The verdict was thereupon entered for the plaintiff for 1001., the value of the horses, subject to the point, which was reserved, as to the liability of the defendants in point of law, and this question was to be raised without reference to the particular form of the pleadings. A rule was accordingly obtained by the defendants to enter the verdict in their favour, and upon the argument the plaintiff contended that the case fell within the principle which was established by the case of the Mersey Docks v. Gibbs (L. Rep. 1 Eng. & Ir. App. 93). In that case it was laid down that the general rule of construction of statutes like the present was that, in the absence of something to show a contrary intention, the Legislature intends that the body created by the statutes shall have the same duties, and that its funds shall be subject to the same liabilities, as the general law would impose upon a private person having and exercising the same rights, and that the trustees in that case were bound to take reasonable care that their works were in such a state that the public might use them without danger. In the case of Nicholl v. Allen (1 B. & S. 916 and in error 934) it was held that a person being authorised to make a bridge and to take toll upon it was liable to repair it, upon the principle that taking the benefit of the tolls he must bear the burthen of the repairs, and it was considered that the statutes in that case contemplated that both the tolls and the liability to repair should go together. This was also in accordance with the MAG. CAS.-VOL. VII.

[C. P.

decision in the earlier case of The Mayor of Lyme Regis v. Henley in the House of Lords (reported in 1 Bing. N. C. 222 & 2 Cl. & Fin. 331), and was confirmed by the case of Parnaby v. The Lancaster Canal Company (11 Ad. & El. 230) and the decision of the House of Lords in the Mersey Dock case. Upon the true construction of the statutes in this case, construed according to the rule laid down in the cases cited, we are of opinion that the defendants had power to maintain and repair the towing paths; they had provided that towing path under the Acts of Parliament for the use of the public; they invited the public to use it; and they took a toll as they are authorised to do for the use of it, and it appears to us therefore that they were bound to take reasonable care that the towing path was in a reasonably fit condition to be used as a towing path, and that the present case does fall within the principle of the decision in The Mersey Docks v. Gibbs and the other cases to which we have referred, and must be governed by them. It is also to be observed that after having acquired the right to use the towing path from the owner of the soil, and having the power themselves to repair and maintain it, it would be very strange if they were at liberty to make orders upon the owners to do the repairs whilst they received the toll from the public. It was contended for the defendants that there was no public right of towing on the banks of the river, and the case of Bell v. Herbert (2 T. R. 253) was relied upon by the defendants in support of this view, but that case only decided that there was no such right merely at common law, and the decision in fact affirmed that there may be and in fact is, on most navigable rivers such a public right by custom, and that slight evidence of usage would generally be sufficient to support it on the ground of the public convenience. We see no objection to a dedication of a way to the public for such a limited purpose and in Rex v. The Severn and Wye Navigation (2 B. & A. 648) Holroyd and Bayley, JJ. both laid it down, and we think correctly, that a towing path may be a highway to be used only for the purpose of towing barges or vessels. It was further contended that if a public right of way existed for the purpose of towing, that the parish alone had the power, and were liable to the duty of repairing it, but we can find no sufficient grounds in fact or law under the circumstances of this case, and upon the proper construction of these statutes, for supporting that contention; nor is this case like some which were suggested, such as that of a road washed away by the sea, where no person or body may be liable to repair or restore it. The authorities to which we have already referred seem effectually to dispose of this point. It was further contended that if there was a public right of towing upon the river banks, and the defendants were bound to repair them, the only remedy for breach of that duty was by indictment, and that no action could be maintained by an individual; but if the duty of keeping the towing paths and banks in repair be imposed upon the defendants, and they have neglected that duty, we are at a loss to understand upon what principle it can be said that a person who has sustained a particular injury from such neglect, and which is not common to the public at large, is precluded from maintaining an action to recover damages for the injury which he has thus individually sustained. The cases before referred to are direct SS

authorities in favour of the plaintiff upon this point also. It was further contended that the defendants did not collect the tolls for their own advantage, but merely as trustees for the benefit of the public; but in the Mersey Dock case that circumstance was held not to make any difference in principle with respect to the liability in such cases, and all the grounds upon which it was sought to distinguish the case from the previous cases have in our judgment entirely failed. Some questions were raised as to the sufficiency of the declaration, and which are material only for the purpose of the demurrers, but as the defendants denied their liability altogether under any form of declaration it was arranged that the plaintiff should be at liberty to make any such amendments as he might be advised consistently with the facts of the case and the finding of the jury, and which he is still at liberty to make if he thinks fit. Our decision upon the main point in the case is in favour of the plaintiff, and the rule obtained by the defendants to enter the verdict for them under the leave reserved at the trial will therefore be discharged, and judgment will be entered for the plaintiff on the demurrers, upon the present or the amended form of the declaration, at the option of the plaintiff. The remaining point argued before us was that the verdict was against the weight of the evidence, and that there ought to be a new trial on that ground. Upon reading the notes of the evidence we have not been able to satisfy ourselves that the verdict is so clearly against the weight of evidence that it ought to be set aside, but at the same time the Lord Chief Justice before whom the case was tried has certified to us that he is dissatisfied with the verdict, and under any other circumstances than those which have occurred we should almost certainly have thought it right in deference to such an opinion, that the case should undergo further investigation before another jury. But it must be remembered that this was a second verdict obtained by the plaintiff, and after the first verdict in his favour had been set aside; the questions left to the jury were peculiarly matters within their province, the evidence upon them was contradictory, and two special juries having, after the summing up of the presiding judge, found their verdict upon all the points submitted to them in favor of the plaintiff, and as we see little or no probability that another jury would be likely to come to a different conclusion upon a third trial, we think we ought not to send the case down for trial again, and that the rule so far as it relates to a new trial should also be discharged.

Rule discharged. Attorneys for plaintiff, Wilkinson and Howlett. Attorney for defendants, Hall for Freer and Co.

Tuesday, June 4, 1872. POWER v. WIGMORE.

Metropolitan Building Act (18 & 19 Vict. c. 122)— Surveyor's fees-Inspecting arches or stone floors -Power for justice to state case,

The Metropolitan Building Act (18 & 19 Vict. c. 122, 8. 49) enacts there shall be paid to the district surveyors in respect of the several matters in the second schedule the fees therein specified, or such

[C. P.

other fees as may from time to time be directed by the Metropolitan Board of Works, but one fee only shall be chargeable with respect to any such works done in, to, or upon any building as are included in one notice. The second schedule, as far as is material, is as follows: "Fees for additions or alterations. For inspecting the arches or stone floors over or under public ways, 108." The 106th section provides that for every case, except in reepect of fees of a district surveyor in which jurisdiction is hereinbefore given to a jus tice of the peace, if either party is dissatisfied with the determination of the justice so convict ing, such party may appeal to any of the Superior Courts of Common Law at Westminster. The appellant having received notice from the respondent of his intention to build fifty-two arches, inspected and measured them on several occasions. The arches were built on a vacant space of ground under what was and is a public highway, and were built on the four sides of a parallelogram. The appellant claimed 261., being 10s. per arch, while the respondent refused to pay more than 108. altogether.

Upon appeal to the alderman, he was of opinion that 10s. was all that the appellant was entitled to, but stated a case for the opinion of the Court of Common Pleas.

It was objected on the part of the respondent that the alderman had no power to state a case, which was taken away by the 106th section of the Metropolitan Building Act:

Held, that the appellant was entitled to a fee of 10s. for every building; and that the alderman must say how many buildings there were:

Held, also, that the power of the alderman to state a case under 20 & 21 Vict. c. 43, was not taken away by the 106th section of the Metropolitan Building Act.

CASE stated under 20 & 21 Vict. c. 43.

1. Upon hearing of a summons obtained by the appellant against the respondent under sects. 25, 31, 49, 51, and schedule 2 of the Metropolitan Building Act (18 & 19 Vict. c. 122), whereby the respondent was summoned for that on the 26th July 1870, certain arches under the public way, situate in Newgate Market and within the limits of the Metropolitan Building Act 1855, and within the district of the southern division of the City of London, of which the appellant was district surveyor under the said Act, were completed, and that at the expiration of fourteen days after such completion on the 10th Aug. 1870, the appellant became entitled to receive from the respondent, as the builder employed in erecting such arches, the amount of fees due to him, specified in the second schedule of the Act, to wit, 251. 10s., and that on the 29th Aug. 1870, the appellants caused a proper bill specifying the amount of such fees to be sent to the respondent in a registered letter, but the respondent had, contrary to the form of the statute, refused to pay the same. The respondent was ordered to pay to the appellant the sum of 10s. and

costs.

2. The following facts were proved and admitted by both parties.

3. (1.) The appellant was and still is the District Surveyor for the Southern Division of the city of London, and his district includes the old Newgate Market.

(2.) On 8th June 1870 he received a notice from the respondent that he intended to build fifty-two