said, and having obtained such permission, licence, or authority as aforesaid, had, during all the time aforesaid, lawfully and of right erected, placed, and continued, and been used and accustomed of right to erect, place, and continue for such purpose or purposes in any such public way, so as to inclose or obstruct the same, such hoarding, in such manner and of such dimensions, and for such time or times as he or they have been so authorised, licensed, and permitted to do by the said Lord Mayor, for the time being, of the said city as aforesaid, except so far as such custom, power, or authority hath been affected by the statute made and passed in the Fifty-seventh year of the reign of His late Majesty King George the Third, intituled "An Act for better paving, improving, and regulating the streets of the Metropolis, and removing and preventing nuisances and obstructions therein:" that the defendants, having occasion to pull down the said houses in the declaration mentioned, and to erect another house on the site of the said house of the defendants in the declaration first mentioned, the whole of such houses and [722] sites thereof, and of the said footway in the said declaration, being then within the city of London, and the houses and sites thereof being near to the said public footway in the declaration mentioned, and the defendants also then having occasion for that purpose, to erect, place, and continue a hoarding in such manner as thereby to inclose and obstruct a part of the said footway, theretofore and before the erection and placing the said hoarding as in the declaration mentioned, and before any of the said times when, &c., to wit, on the 1st of March 1823, applied to Sir Peter Laurie, Knight, then being the Lord Mayor of the said city, for his permission, licence, and authority to erect, place, and continue certain hoardings in such manner as aforesaid; and that the said Sir Peter Laurie so then being such Lord Mayor of the said city as aforesaid, did then duly authorise, license, and permit the defendants to erect and place certain hoardings of certain dimensions, and in certain manners, and to continue the same for certain spaces of time, provided the defendants should also obtain the licence of the surveyor of the pavements, appointed under and by virtue of an act of parliament made and passed, &c., intituled, &c., (57 G. 3, c. xxix.); that afterwards, and after the defendants had obtained such licences and authority as aforesaid, and before the erection of the said hoardings, and before any of the said times when, &c., to wit, on the same 1st of March 1833, the defendants did obtain the leave and licence of Richard Kelsey, who was then the surveyor for the time being of the pavements of the city of London and liberties thereof, under his hand, to erect and continue such hoardings of such dimensions, and in such manner, and to continue the same for the said spaces of time so authorised and permitted by the said Lord Mayor as aforesaid; wherefore the defendants having obtained such leave, licence, permission, and [723] authority as aforesaid, did theretofore, to wit, on the 1st of April 1833, erect and place certain hoardings for such purposes as aforesaid, of the dimensions and in manner so authorised by the said licences as aforesaid, and did thereby and therewith necessarily inclose and obstruct the said part of the said footway in the declaration mentioned, and did, for the purpose aforesaid, keep and continue the said hoarding so erected and placed as aforesaid, and so inclosing and obstructing the said part of the said footway as aforesaid, for the said spaces of time in the said leave and licences, permissions and authorities mentioned, and as it was lawful for them to do for the cause aforesaid; which are the supposed grievances in the introductory part of the plea referred to, and in the said declaration mentioned; doing no unnecessary damage to the plaintiff on the occasion aforesaid. Verification.

Thirdly as to breaking the said panes of glass in the declaration mentioned; that after, they, the defendants, shortly after the said panes of glass were so broken as in the declaration mentioned, and before the commencement of the suit, to wit, on the 1st of May 1833, caused and procured the said panes of glass so broken as aforesaid, to be replaced with new panes of glass at their costs and charges, in full satisfaction and discharge of the damages sustained by the plaintiff, by reason of the breaking thereof; and which replacing of the said panes of glass, the plaintiff then agreed to accept and receive, and then accepted and received, in full satisfaction and discharge of the last mentioned damages. Verification.

The plaintiff joined issue on the first plea.

To the second plea, the plaintiff, after taking the custom by protestation, replied de injuriâ, absque residuo causa, concluding to the country.

[724] To the third plea the plaintiff replied, that the defendants did not cause

and procure the said panes of glass so broken as in the declaration mentioned, to be replaced with new panes of glass at their costs and charges, in full satisfaction and discharge of the damages sustained by the plaintiff by reason of the breaking thereof, and that the plaintiff did not agree to accept and receive, and did not accept and receive the replacing of the said panes of glass, in full satisfaction and discharge of the damages in the same plea mentioned; concluding to the country. Verification. On the last two replications the defendant joined issue.

Upon the cause coming on for trial before Tindal C. J, at the adjourned sittings in London, after Trinity term 1839, a verdict was taken for the plaintiff for 20001. by consent, subject to the award of a barrister, who by the order of nisi prius was empowered to direct that a nonsuit should be entered, or that a verdict should be entered for the plaintiff, or the defendants, as he should think proper, and who was, at the request of either party, to state any point of law upon the face of his award for the opinion of the court,-the costs of the suit to abide the event of the award, and the costs of the reference and award to be in the discretion of the arbitrator.

Several meetings took place before the arbitrator, attended by counsel on both sides, at the last of which it was arranged, that each party should send in a written statement of such questions of law as he or they required to be stated or raised by the arbitrator, by or on the face of his award.

Pursuant to this arrangement, the arbitrator was requested, on the part of the defendants, to raise on the face of his award the following questions:

[725] 1st. Whether the defendants' wrongfully, wilfully, and injuriously, and without any reasonable or probable cause delaying, and retarding the pulling down of the said eight houses, and the rebuilding of this said first mentioned house, for an unreasonably long time, was, either of itself or coupled with the fact of the erection or continuance of the shore in front of the plaintiff's messuage, a cause of action under the present declaration, independently of the fact of the keeping up of the hoarding as alleged in the declaration :-provided the arbitrator was of opinion that the same amounted to cause of action, and that the plaintiff was entitled to recover in respect thereof.

2d. Whether the custom set out in the second plea was a bad custom,-if the arbitrator himself considered it so.

3d. Whether the plaintiff was, under the pleadings in the cause, entitled to enter into evidence, or recover damages, in respect of the continuance of any hoard erected after the houses were pulled down, as well as the continuance of a hoard before and preparatory to their being pulled down-provided the arbitrator himself should be of opinion that the plaintiff was entitled to recover damages in respect thereof.

4th. Whether Mr. Kelsey's licence did not justify the erection of one hoard, pursuant to the licence of Sir Peter Laurie-provided the arbitrator should be of opinion that it did not.

5th. Whether the defendants were bound to underpin more than their own half of the party-wall, and whether they were liable, under the present declaration, for underpinning only their own side, provided they were not guilty of negligence in so doingif the arbitrator should be of opinion upon the evidence, that they underpinned only their own side of the wall.

6th. Whether the defendants were bound to shore [726] up the plaintiff's messuage-if the arbitrator should be of opinion, that they were liable, under the present declaration, for not doing so, it not being alleged that the plaintiff's messuage was an ancient messuage, or entitled to any support from the defendants' house, or that the defendants by reason of their house, were bound to shore up the plaintiff's messuage, whenever it should become necessary to pull down the defendants' house.

On the part of the plaintiff, the arbitrator was requested, with reference to the points desired to be raised by the defendants for the opinion of the court, to find as follows:

1st. With reference to the first point, to find and state the facts, whether or not the shore in front of the plaintiff's house was continued for an unreasonable length of time, and whether or not that continuance was not a substantial grievance, independently of the continuance of the hoarding, and to assess the damages sustained by the plaintiff by reason thereof, separately.

2d. With reference to the second, third, and fourth points, to raise the point, whether, if the custom was bad, the plaintiff was not entitled to judgment non obstante

veredicto, and in case the arbitrator found the issues on the licence for the defendants, also to assess the damages by reason of the continuance of the hoards separately; and to set forth Sir Peter Laurie's licence including the licence of the surveyor of pavements, so as to raise the point of law, whether the latter was a compliance with the condition on which the former was granted, and to state the fact, that the hoard complained of was erected, and continued for the purpose of pulling down the houses. 3d. With reference to the fifth and sixth points, to state the fact, whether or not the plaintiff's house was an ancient house, and whether it had not always been supported at the east end thereof by the party-wall in [727] question, and whether or not, the sinking, &c. of the plaintiff's house was not occasioned by defective underpinning on the part of those employed by the defendants, and also to state the facts, whether or not the party-wall was certified to be a sound wall, and of proper thickness under the building act, and whether the defendants did not underpin the wall in some parts all through, comprising that part of the wall which belonged to the plaintiff's messuage, and to raise the point of law, whether if the defendants underpinned the party-wall under the above circumstances and in manner above described, they were not bound to shore up the party-wall in such a manner as to prevent damage to the plaintiff's messuage, and to assess the damages sustained by reason of the sinking, &c., of the plaintiff's messuage separately; and the arbitrator was also requested on the part of the plaintiff, to assess the damages sustained by reason of the negligence in pulling down the house separately, if he should be of opinion that the plaintiff was entitled to recover in respect thereof.

The arbitrator was also requested, with reference to the last issue, viz. : the plea of accord and satisfaction in regard to the breaking of the glass, if he should be of opinion that that issue should be found for the defendants, to state the fact, whether or not the plaintiff did not sustain damage, as alleged in the declaration, by reason of the breaking of the glass beyond the mere costs of repairing the glass, and whether or not there was any evidence of the plaintiff's acceptance of the repairs of the glass by the defendants in satisfaction of all the damage sustained by the plaintiff, by reason of the breaking thereof.

On the 20th of October 1841, the arbitrator made his award in these terms :"As to the first issue joined between the said parties, [728] I award and find that the defendants, except as to the alleged careless, negligent, and improper conduct of the defendants in shoring up the party-wall between the house of the defendants in the declaration first mentioned and the said house of the plaintiff, are guilty of the premises in the declaration in the said cause mentioned, and I do assess the damages sustained by the plaintiff, by reason of the keeping and continuing of the hoarding so erected and placed as in the declaration is mentioned, and so obstructing the said footway and the approach to the plaintiff's house, at the sum of 1001. in respect of the space of time mentioned in the licence of Sir Peter Laurie in the second plea of the defendants mentioned, parcel of the time in the declaration in that behalf mentioned, and at the sum of 501. in respect of the residue of the time in the declaration in that behalf mentioned; and I do assess the damages sustained by the plaintiff, by reason of the delaying and retarding of the pulling down and rebuilding of the said houses in the said declaration in that behalf respectively mentioned, otherwise than by the keeping and continuing of the said hoarding, at the sum of 1001.; and I do assess the damages sustained by the plaintiff, by reason of the carelessness and negligence and improper conduct of the defendants, their agents, and workmen in that behalf, in pulling down the house of the defendants in the declaration first mentioned, and in neglecting to use reasonable and proper precaution in that behalf, at the sum of 5001.; and I assess the damages sustained by the plaintiff, by reason of the carelessness, negligence, and unskilfulness of the defendants, their agents, and workmen in and about digging and clearing the ground for the foundation of the house so built on the site of the house of the defendants in the declaration first mentioned, and in and about underpinning the party-wall between that house and the messuage of the plaintiff, and [729] in and about removing a certain part of the said party-wall and connected therewith, at the sum of 2001. And as to so much of the premises in the declaration contained as relates to the alleged careless, negligent, and improper conduct of the defendants in shoring up the party-wall between the house of the defendants in the declaration first mentioned, and the said messuage of the plaintiff, I award and find that the defendants are not guilty thereof.

"And as to the second issue joined between the said parties, I find that the defendants having occasion to pull down the houses in the declaration in that behalf mentioned, and to erect another house on the site of the house of the defendants in the declaration first mentioned, the whole of such houses and of the sites thereof, and of the footway in the declaration mentioned, being then within the city of London, and the said houses and sites thereof being near to the said public footway in the declaration mentioned, and the defendants also then having occasion for that purpose to erect, place, and continue a hoarding in such manner as thereby to inclose and obstruct a part of the said footway, before the erection and placing of the said hoarding as in the declaration mentioned, and before any of the said times when, &c. applied to Sir Peter Laurie, Knight, then being the lord mayor of the said city, for his permission, licence, and authority, to erect, place, and continue certain hoardings in such manner as aforesaid; and the said Sir Peter Laurie, so then being lord mayor of the said city as aforesaid, did then duly authorise, license, and permit the defendants to erect and place certain hoardings of certain dimensions and in a certain manner, and to continue the same for certain spaces of time, provided the defendants should also obtain the licence of the surveyor of the pavements appointed under and by virtue of an act of parliament passed in the 57 G. 3, [730] (c. xxix.), for better paving and regulating the streets of the metropolis; and removing and preventing nuisances and obstructions therein and I do further find that after the defendants had obtained such licences and authority as aforesaid, and before the erection of the said hoardings and before any of the said times when, &c., the defendants did obtain the leave and licence of Richard Kelsey, who was then the surveyor of the pavements of the city of London and liberties thereof, under his hand, to erect and continue such hoardings of such dimensions and in such manner, and to continue the same for the said spaces of time so authorised and permitted by the said lord mayor as aforesaid. And I do further find that the defendants having obtained such leave, licence, permission, and authority as aforesaid, did on the 1st of April 1833, erect and place certain hoardings for such purposes as aforesaid, of the dimensions and in manner authorised by the said licences as aforesaid; and did thereby and therewith inclose and obstruct the said part of the said footway in the said declaration mentioned, and did for the purpose aforesaid, keep and continue the said hoardings so erected and placed as aforesaid, and so inclosing and obstructing the said part of the said footway as aforesaid, for the space of time in the said leaves and licences, permissions, and authorities mentioned.

"And as to the third issue joined between the said parties, I find that the defendants did not cause or procure the said panes of glass so broken as in the declaration mentioned to be replaced with new panes of glass at their costs and charges, in full satisfaction and discharge of the damages sustained by the plaintiffs by reason of the breaking thereof; and that the plaintiff did not agree to accept and receive, and did not accept or receive the replacing of the said panes of glass, in full satisfaction and discharge of the damages in the same plea mentioned.

[731] "And I do certify that this cause was proper to be tried before a judge of the superior court, and not before the sheriff or judge of an inferior court, and likewise that the cause was proper to be tried by a special jury.

"And I do award and order that the costs of the reference and of this my award, be paid and borne by the defendants.

"And I do, at the request of the respective parties, state the following matters for the opinion of the court:

"I state that the hoarding in the declaration mentioned, was erected and placed by the defendants in front of their said houses preparatory to their pulling down their said houses in such manner, that the said hoarding inclosed a part of the public footway in the said street running in front of the messuage and houses of the plaintiff and defendants, and thereby in part obstructed the said footway, and the approach to the said messuage of the plaintiff, and the passage of persons passing and repassing on foot on the side of the said street on which the plaintiff's messuage stood; and that after the said houses of the defendants had been pulled down, the defendants took down the said hoarding and removed the same to a distance of five feet, and there erected and placed the same in front of the site of the last mentioned house, and adjoining the said messuage of the plaintiff in such manner that the said hoarding no longer inclosed any part of the said public footway; and that afterwards the defendants, preparatory to their building another house on the site of the house in the

declaration first mentioned, again removed the said hoarding, and re-erected the same in such a manner that the same hoarding again inclosed a part of the public footway in the said street running in front of the messuage and houses of the plaintiff and the defendants, and thereby again in part obstructed the said public footway and the approach to the messuage of the plaintiff, and the passage [732] of persons passing and repassing on foot on the side of the said street on which the plaintiff's messuage stood. "I further state that the defendants in their second plea, set out the following custom, that is to say that from time whereof the memory of man is not to the contrary, until and at the time of the committing of the grievances in the introductory part of the defendants' second plea mentioned, there had been and was, and from thence until the time of the pleading of the said plea there had been, and still was, within the city of London, a certain ancient and laudable custom there used and approved of, that is to say that if any person or persons, body corporate or politic, hath or have at any time or times during the time aforesaid, had occasion to erect or pull down any building or buildings within the said city near to any public way within the said city, and hath or have had occasion for those or either of those purposes to erect, place, and continue any hoarding in such a manner as thereby to obstruct or inclose any part of any public way within the said city, and hath or have applied to the lord mayor of the said city for the time being, for his permission, licence, or authority, to erect, place, and continue such hoarding in such manner and for such purpose or purposes as aforesaid, such lord mayor for the time being of the said city hath during all the time aforesaid had full and free power and authority to authorise, license, and permit, and hath lawfully authorised, licensed, and permitted, and been used and accustomed to license, authorise and permit such person or persons, body corporate or politic, to erect, place, and continue any such hoarding for such purpose or purposes as aforesaid, and of such dimensions and in such manner, for such time and times as he hath thought reasonable or proper for such purpose or purposes; and the person or persons, body corporate or politic, so applying as afore-[733]-said, and having obtained such permis sion, licence, or authority as aforesaid, hath and have during all the time aforesaid, lawfully and of right erected, placed, and continued, and been used and accustomed of right to erect, place, and continue, for such purpose or purposes, in any such public way, so as to inclose or obstruct the same, such hoarding in such manner and of such dimensions, and for such time or times as he or they have been so authorised, licensed, or permitted to do by the lord mayor for the time being of the said city as aforesaid, except so far as such custom, power, or authority hath been affected by the statute made and passed in the 57 G. 3 (c. xxix.), intituled, &c. And I further state that the said custom was admitted by the replication to the second plea, the plaintiff having only traversed the residuum causæ as therein set forth. And if the court shall be of opinion that the second plea of the defendants setting up and justifying under the said custom is not sufficient to bar the plaintiff from recovering his damages in respect of the grievances confessed by the second plea, then, so far as I have power and authority so to do, I award and direct that judgment be entered for the plaintiff for the amount of the damage, by him sustained by reason of such grievances, notwithstanding the finding of the said second issue for the defendants.

"And I further state that the licence granted by the said Sir Peter Laurie, including the licence of the surveyor of pavements, and given in evidence before me by the defendants, was and is as follows:

"London to wit.-Whereas application hath been made to me Sir Peter Laurie, Knight, Lord Mayor of the city of London by Mr. Long, builder, to erect a hoard before premises being in Newgate Street, London, and the sergeant and yeoman of the channel having returned to me that they have viewed the premises, and consider that a hoard containing in front sixty-two feet, projecting from the same four feet, is necessary to be erected there [734] in order that the premises may be rebuilt with safety to the public; I do, therefore, hereby give liberty that a hoard of the dimensions aforesaid may be erected before the said premises and continue four weeks from the date hereof, provided that the said Mr. Long shall also obtain the licence of the surveyor of the pavements appointed under and by virtue of an act of parliament, made and passed in the fifty-seventh year of His late Majesty's reign intituled, &c.

"Given under my hand and seal, this 25th of June 1833.

"P. LAURIE, Mayor (L. S.)"