with passages which represent Jesus Christ as speaking words which He never could have spoken, and which, if spoken, would not have been believed (33rd article of charge). That he has asserted that the Gospel according to St. John contains passages which can only be expounded so that they be repugnant to each other or to other places of God's Word written, or Holy Scripture, and that the character of our Lord Jesus Christ as there set forth is quite irreconcileable with the idea of His being a Teacher sent from God, and is entirely different from the character of the Christ of the other Gospels (34th article of charge). The first, second, and fourth of the offences alleged in the last mentioned articles of charge are stated to contravene the 6th and the 20th Articles of Religion, and the 13th to contravene the 6th Article of Religion; and each of the said offences is also charged to be an assertion of doctrine inconsistent with certain portions of the Book of Common Prayer, set forth in the subsequent articles of charge. The 6th Article of Religion lays it down that there never was any doubt in the Church of the authority of the canonical books of the Old and New Testaments, and that the Church applies them to establish doctrine. Whilst the 20th Article of Religion declares "that it is not lawful for the Church to ordain anything that is contrary to God's Word written, nor may it so expound one portion of Scripture that it be repugnant to another." Now it is very important upon this head of the inquiry to consider the judgment delivered by Lord Westbury in the case of Essays and Reviews, (Williams v. The Bishop of Salisbury, and Wilson v. Fendall (ubi. sup.) In considering one of the charges against Dr. Williams, in that case the judgment states the case thus:-"The words that the Bible is an expression of devout reason, and, therefore, to be read with reason in freedom,' are treated in the charge as equivalent to these words:-The Bible is the composition or work of devout or pious men, and nothing more; but such a meaning ought not to be ascribed to the words of a writer who, a few lines further on, has plainly affirmed that the Holy Spirit dwelt in the sacred writers of the Bible. This context enables us to say that the words 'an expression of devout reason, and, therefore, to be read with reason in freedom,' ought not to be taken in the sense ascribed to them by the accusation. In like manner we deem it unnecessary to put any interpretation on the words' written voice of the congregation,' inasmuch as we are satisfied that whatever may be the meaning of the passages included in this article, they do not, taken collectively, warrant the charge which has been made that Dr. Williams has maintained the Bible not to be the Word of God nor the rule of faith." The judgment, therefore, is express in saying that the ground for regarding the statements of Dr. Williams as not exceeding the just limits allowed by the Articles of Religion was, that he did not state the Bible to be the composition of devout men and nothing more. So, in considering the charge against Mr. Wilson, the following passage occurs (p. 429):-"In the 8th article of charge an extract of some length is made from Mr. Wilson's essay, and the accusation is, that in the passage extracted Mr. Wilson has declared and affirmed in effect that the Scriptures of the Old and New Testament were not written under the inspiration of the Holy Spirit, and that they were not necessarily at all, and certainly not

[PRIV. Co.

in parts, the Word of God; and then reference is made to the 6th and 20th Articles of Religion, to part of the Nicence Creed, and to a passage in the Ordination of Priests in the Book of Common Prayer. This charge, therefore, involves the proposition, that it is a contradiction of the doctrine laid down in the 6th and 20th Articles of Religion, in the Nicene Creed, and in the Ordination Service of Priests, to affirm that any part of the canonical books of the Old or New Testament, upon any subject whatever, however unconnected with religious faith or moral duty, was not written under the inspiration of the Holy Spirit." Guided by the judgment we have thus referred to, we do not think the 11th charge contained in the 31st article of charge is so made out by the extract given from the appellant's work as to justify us in regarding that article of charge as established. The appellant asserts, indeed, at the end of a long passage, extracted in page 41, that all knowledge of God can only come from our own deep sense of what He requires us to do; and these words are associated with much disparagement of the Bible. But it is possible to interpret these words as meaning that the Bible itself would be of no effect in imparting a knowledge of God if that deep sense of what He requires us to do were absenta sense in which the expression would be allow able; and, following the example set by the judg ment in the case of the Essays and Reviews, we think this interpretation in a quasi-criminal proceeding should prevail. As regards the remaining charges contained in the following articles of charge, whatever force may be given to the word "authority" in the 6th Article of Religion "as applied to the canonical books of the Old and New Testament,' we are of opinion that, in order that the books (which are enumerated) should have any authority at all, it is not consistent with that Article of Religion for any private clergyman, of his own mere will, not founding himself upon any critical inquiry, but simply upon his own taste and judgment, to assert that whole passages of such canonical books are without any authority whatever, as being contrary to the teaching of Christ as contained in others of the canonical books. We think that no private clergyman can do that which the whole Church is, by the 20th Article declared to be incompetent to do, viz., expound one part of Scripture in a repugnant to another; and we need not go through the painful task of citing the numerous passages in the extracts where this is done by the appel lant. We find whole chapters of the Gospel of St. John declared by the appellant, on his own simple assertion, to be irreconcileable with the other Gospels, not on points unconnected with

66

manner

religious faith and duty," to use the words of the judgment in the case of the Essays and Reviews, but in the most essential manner connected with both; and again, whole passages declared to be spurious on no other ground than that they do not approve themselves to the appellant's taste. We can entertain no doubt then, that the charges contained in the 32nd, 33rd, and 34th articles of charges are abundantly established. We have now fulfilled the duty of examining minutely the articles of charge exhibited against the appellant. We have not been uumindful of the latitude wisely allowed by the Articles of Religion to the clergy, so as to embrace all who hold one common faith. The mysterious nature of many of the subjects associ

PRIV. CO.]

ated with the cardinal points of this faith, must, of necessity, occasion great diversity of opinion, and it has not been attempted by the Articles to close all discussion, or to guard against varied interpretations of Scripture with reference even to cardinal articles of faith, so that these articles are themselves plainly admitted, in some sense or other, according to a reasonable construction, or according even to a doubtful, but not delusive construction. Neither have we omitted to notice the previous decisions of the Ecclesiastical Courts, and especially the judgments of this tribunal, by which interpretations of the Articles of Religion, which by any reasonable allowance for the variety of human opinion can be reconciled with their language, have been held to be consistent with a due obedience to the laws ecclesiastical, even though the interpretation in question might not be that which the tribunal itself would have assigned to the article. We have also had careful regard to the explanation given by the appellant himself in court of those of his writings from which the extracts contained in the articles of charge have been taken, in order to see whether the extracts convey to the mind the advised and definite opinions of the author, or whether their meaning can be modified by the context in a sense more consistent with the Articles of Religion, but we cannot find any indications of such being the case. We think that the extracts deliberately exhibit the opinions of the appellant, by which the Articles of Religion, with reference to original sin, the sacrifice and suffering of Christ, the Son of God, both God and man, to reconcile His Father to man, the Incarnation and Godhead of the Son, His return to judge the world, the doctrine of the Trinity, are plainly controverted and impugned, and the Holy❘ Scriptures are as plainly denied their legitimate authority, even on points essential both to faith and duty, by the process of denying their genuineness, not on any critical grounds, but avowedly because they contradict the appellant's private judgment. We have not, in this our decision, referred to any of the Formularies of the Church other than the Articles of Religion. We have been mindful of the authorities, which have held that pious expressions of devotion are not to be taken as binding declarations of doctrine. the appellant will, we think, himself feel how impossible it is that any society whatever of worshippers can be held together without some fundamental points of agreement, or can together worship a being in whom they have no common faith. He himself appears to have experienced the difficulty in the remarkable passages extracted in page 42 of the appendix, with reference to prayer in the name of Jesus Christ. The whole of the Formularies of the Church, and of its devotion, are based on the faith in one God, the Father, Son, and Holy Ghost. In the daily services of the Church, both morning and evening, glory is ascribed at the end of each Psalm to this one God in Trinity, naming each person of the Godhead separately. Prayer constantly concludes with a reference to the mediation of Jesus Christ. Direct prayer is addressed to Jesus Christ in the daily service, morning and evening, by the short prayer of "Christ have mercy upon us." In the daily morning prayer, throughout a great portion of the Te Deum, prayer is made to the Son; and, three times in a week, in the Litany, there is direct prayer addressed both to the Son and to the Holy

But

[ROLLS.

Ghost, as well as to the Holy Trinity. In fact, a large portion of the Litany is addressed to the Son directly. It is not surprising then, that there should be articles distinctly supporting devotions, so fully impressed with a faith in the intercession and power of the Son who is thus invoked. And it would be as contrary to morality as to law to direct the professors of any religion daily to offer prayer to One in whose Divine power they have no faith, or to address as God, One whom they believed to be only man. The appellant, in his address to us, relied much on the absence of direct verbal contradiction in his writings to the words of the Articles of Religion, and asserted that, inasmuch as the Articles could not be all reconciled with each other, he might properly dwell on one view of an Article, which, from the inconsistent character of the Articles, would be opposed to the construction of another Article. The mode in which the appellant constantly misrepresents and caricatures the opinions from which he differs no doubt accounts for his thus attributing inconsistency to statements of doctrine which he has misunderstood. We are, on a perusal of the appellant's writings, driven to the conclusion, not removed by his arguments, that the appellant advisedly rejects the doctrines on the profession of which alone he was admitted to the position of a minister of the church. He disclaims all wish to reconsider his avowed and published opinions, and does not desire an opportunity of retracting any of his opinions. We are bound, therefore, to advise her Majesty that his appeal against the admission of the articles should be dismissed with costs, and that, on the merits of the whole case, sentence of deprivation should be pronounced against the appellant, and that he should be condemned in the costs of the suit. In pronouncing this decision their Lordships have assumed that the appellant adheres to the intimation, made by him on the conclusion of the argument, that he does not desire an opportunity of retracting the opinions which have now been condemned; but their Lordships are, nevertheless, unwilling to proceed to the last step of their duty if he do, within a week from this date, expressly and unreservedly retract the several errors of which he has been convicted. Their Lordships would have followed the precedent afforded by Mr. Heath's case if the appellant had been present and would have required his immediate decision, but they have been informed that Mr. Voysey's absence is occasioned by a sufficient reason.

Proctors for the promoter, Moore and Currey. Proctors for the defendant, Shaen and Roscoe.

ROLLS COURT.

Reported by HENRY PEAT, Esq., Barrister-at-Law.

May 26, 29, and June 5, 1871. PITTS v. KINGSBRIDGE HIGHWAY BOARD. Highway Board-Power to remove shingle from beach---General Highway Act (5 & 6 Will. 4, c. 50), 88. 51 and 52-Respective liabilities of contractor and employer.

A special custom to take shingle from the beach above high water mark for the repairing of the highways of the parish, is bad as to such portion of the beach as is private property, being a custom of a profit à prendre in another man's land.

ROLLS.]

The General Highway Act (5 & 6 Will. 4, c. 50) does not empower a highway board to take shingle from the beach below high water mark for the repair of the highways, so as to cause an increased danger of encroachment by the sea. The employers of a contractor are liable for the injurious acts of the contractor which flow out of the fulfilment of the contract, but where the injurious acts flow out of a matter foreign to the contract, the contractor is personally liable.

Where a plaintiff fails in establishing a case for relief, the uncertain character of the evidence on which the case turns, and the setting up of unfounded claims by the defence, are grounds for dismissing the bill without costs.

THIS was a suit instituted by one Nicholas Pitts to obtain an injunction to restrain the Kingsbridge Highway Board, their contractors, servants, workmen, and agents from gathering or getting, raking, digging, taking away, and removing stones, pebbles, shingle, or other like materials on and from the beach or shore of Lannacombe Cove, in the highway district of Kingsbridge, Devon. The bill also prayed that the damages occasioned to the plaintiff by the gathering, taking away and removing by the defendants of stones, pebbles, shingle and other like materials, on and from the beach or shore of Lannacombe Cove, might be ascertained and the amount thereof assessed, and that the defendants might be ordered to pay the same to the plaintiff.

The plaintiff, as owner in fee simple of a portion of the manor of South Allington, which adjoins Lannacombe Cove, claimed to be entitled to the sea beach, waste land, and foreshore above high water mark adjacent to the manor of South Allington. The lands in question had been vested in the plaintiff and his ancestors for sixty years and upwards. The manor of South Allington is an ancient manor, and the bill alleged that the manor, both by grant and immemorial right and custom, consisted of (amongst other things) the sea beach and waste lands adjacent thereto.

The plaintiff was also the owner in fee sin; le of an estate called Down, which extended to Lannacombe Cove, and which he purchased in 1858 from the trustees of the then lord of the manor of Stokenham, an ancient manor, with similar rights over the sea shore, to those belonging to the manor of South Allington. Under and by virtue of the deed of conveyance of this estate of Down the plaintiff claimed to be entitled to the sea beach, waste lands, and foreshore adjacent to the estate of Down, such waste being by such deed expressly conveyed and assured to him.

The sea beach, waste lands, &c., in question, are comprised in the Kingsbridge highway district, which was duly formed under the statute 25 & 26 Vict. c. 61, by which statute also the Kingsbridge Highway Board was constituted as a corporate body.

The defendants under their Act from time to time employed contractors to repair the highways. In the fulfilment of their contract the contractors had on various occasions removed quantities of shingle from the beach of Lannacombe Cove, both from above and below, high water mark.

The plaintiff, by his solicitor, Mr. Richard Andrews, in June 1868, applied by letter to the defendants through their clerk, Mr. Gabriel Beer Lidstone, and requested them to present their contractors from continuing to remove stones,

[ROLLS.

shingle, and other like materials from the beach of Lannacombe Cove, but the defendants refused to comply with the plaintiff's requests, alleging that under and by virtue of the 5 & 6 Will. 4, c. 50, ss. 51 & 52 (a), they and their contractors had a right to remove such stones, shingle, &c., from the beach in question for the purpose of repairing the roads and highways of the Kingsbridge district.

Thereupon the plaintiff instituted the present suit, alleging by his bill that on the part of the coast where his estates are situate, the sea is continually advancing and encroaching on the adjoining lands, and the gathering or getting, raking and digging up stones, pebbles, shingle, or other like materials on, and removing the

(a) By the 51st section of the General Highway Act (5 & 6 Will. 4, c. 50), it is provided that "it shall and may be lawful for every surveyor, in any waste land or common ground, river, or brook, within the parish for which he shall be surveyor, or within any other parish wherein gravel, sand, stone, or other materials are respectively likely to be found (in case sufficient cannot be conve niently had within the parish where the same are to be employed, and sufficient shall be left for the use of the roads in such other parish), to search for, dig, get, and carry away the same, so that the said surveyor doth not thereby divert or interrupt the course of such river or brook, or prejudice or damage any building, highway, or ford, nor dig or get the same out of any river or brook, within the distance of 150ft. above or below any bridge, nor within the like distance of any dam or weir; and likewise to gather stones lying upon any lands or grounds within the parish where such highway shall be, for such service or purpose, and to take and carry away so much of the said materials as by the discretion of the said sur veyor shall be thought necessary to be employed in the amendment of the said highways, without making any satisfaction for the said materials; but satisfaction shall be made for all damages done to the lands or grounds of any person or persons by carrying away the same, and in the manner hereinafter directed for getting and carry. ing materials in inclosed lands or grounds; but no such stones shall be gathered without the consent of the owner of such lands or grounds, or a licence for that purpose from two justices at a special sessions for the highways, after having summoned such owner to come before him and heard his reasons, if he shall appear and give any, for refusing his consent.

By sect 52 it is provided that "nothing in the Act contained relative to the gathering or getting of stones or other materials, shall extend to any quantity of stones or other materials thrown up by the sea, commonly called beach, where the removal of the same would cause any damage or injury by inundation to the lands adjoining, or increased danger of encroachment by the sea.

And by sect. 53 it is provided that "it shall not be lawful for any surveyor, or other person acting under the authority of this Act, to dig, gather, get, take, or carry away any materials for making or repairing any highway out of or from any inclosed land or ground, until one calendar month's notice in writing, signed by the surveyor, shall have been given to the owner of the premises from which such materials are intended to be taken, or left at the house or last or usual place of abode of such owner or agent, and also of such occupier, to appear before the justices at a special sessions for the highways, to show cause why such materials shall not be had therefrom; and in case such owner, agent, or occupier shall attend pursuant to such notice, but shall not show sufficient cause to the contrary, such justices shall, if they think proper, authorise such surveyor or other person to dig, get, gather, take, and carry away such materials at such time or times as to such justices shall seem proper; and if such owner, agent, or occupier shall neglect or refuse to appear by himself or his agent, the said justices shall and may (upon proof on oath of the service of such notice) make such order therein as they shall think fit as fully and effectually to all intents and purposes as if such owner or occupier, or his agent, had attended."

ROLLS.]

same from the beach or shore increased the danger of encroachment by the sea on the adjoining lands belonging to the plaintiff.

The plaintiff submitted that the defendants and their contractor had not, under the General Highway Act, or any other enactment or authority, any right to remove stones, &c., from the beach in question, and that they ought to be restrained by injunction from removing such stones, &c., from the beach in question, as well from below as above high water mark, and more especially so having regard to the increased danger of encroachment by the sea on the plaintiff's lands, occasioned by such acts.

The defendants by their answer contended that as to stones, &c., removed from below high water mark (such part of the beach not being the private property of the plaintiff) they were entitled to remove them by the 51st and 52nd sections of the Act, and also by a special custom by which from time immemorial the inhabitants of the parishes or manors of Chivelstone and Stokenham (in which the plaintiff's estates were situate), or the persons for the time being, and from time to time charged with the duty of repairing the roads and highways in such respective parishes had been used and accustomed to have and enjoy the right to enter upon the sea shore between high and low water mark in Lannacombe Cove, and to get, take, and collect, gravel, stones, pebbles, beach, and other such materials there deposited by the sea, and remove and carry away the same therefrom for the purpose of repairing the roads and highways in the said respective parishes when and so often as need and occasion required. The defendants further contended that it was their contractors, and not themselves who had committed the acts complained of, and that the contractors were alone liable in respect thereof.

In a contract entered into on the 20th May 1869, by the defendants, with the persons whose tender was accepted for the repair of the roads, it was provided that "whenever the contractors are required to use pebbles or other materials thrown up by the sea for hardening any of the roads, they are not to cause any damage or injury by the removal of such pebbles or other materials by inundations of the lands adjoining to where the same may have been removed, or increased danger by encroachment by the sea, and the board will not be responsible for the illegal removal of such pebbles or other materials by the contractors."

As to the shingle reinoved from above high water mark, the defendants admitted that they had removed some in 1866, three years before the filing of the bill, but not since, and they disclaimed all intention of removing shingle therefrom in the future.

The evidence was very conflicting as to the quantity of shingle removed, and as to whether its removal caused increased danger of encroachment by the sea.

Mackeson, Q. C. and W. Wellington Cooper, for the plaintiff, submitted that the defendants had no right under sect. 51 of the Act to remove the shingle above high water mark, as that part of the beach was the plaintiff's private property. As to the shingle below high water mark, its removal caused increased danger of encroachment of the sea on the plaintiff's private property, and therefore the defendants could not remove the shingle, as such a case was expressly excepted from the

[ROLLS.

operation of the 51st section by the terms of the 52nd section. They cited

Johnson v. Wyard, 2 Lutw. 1344, and
Padwick v. Knight, 7 Ex. 854,

where it was held that a surveyor of highways cannot justify a trespass under a prescriptive right, or a custom, to take stones from the waste, whether adjoining the sea shore between high and low water mark, or otherwise, for the purpose of repairing the highways of the parish. They contended that the alleged custom to take stones, &c., for the repair of the roads was bad as being a claim of a profit à prendre in another man's soil: Constable v. Nicholson, 14 C. B., N. S., 230;

The Attorney-General v. Matthias, 4 K. & J. 579;
Willingale v. Maitland, L. Rep. 3 Eq. 103; 36 L. J.
Ch. 64;

Clowes v. Beck, 13 Beav. 353.

They contended that it was the defendants and not their contractors who were liable for the injury done; on this point they cited,

Hole v. The Sittingbourne and Sheerness Railway
Company, 3 L. T. Rep. N. S 750; 6 H. & N. 488,
and

Gray v. Pullen, 11 L. T. Rep. N. S. 569; 5 Best &
Sm. 978.

Jessel, Q.C., Charles Hall, and Solomon, for the defendants, contended that it was now too late to obtain relief for the injury done in 1866 by taking shingle from above high water mark, as the defendants had disclaimed the intention of taking any more from that part of the shore. As to taking shingle below high water mark they referred to 7 Jac. 1, c. 18, and Hall on the Sea Shore, p. 246. Assuming that the shingle was wrongly taken, they contended that the defendants were not liable for the wrongful acts of their contractors: (Gray v. Pullen, 11 L. T. Rep. N. S. 569; 5 Best & Sm. 978). Mackeson, Q.C. in reply,

June 5.--Lord ROMILLY.-This is a suit instituted for the purpose of preventing injury to the property of the plaintiff, by removing shingle from the beach in Lannacombe Cove, near Kingsbridge, in Devonshire. The plaintiff says that the defendants' right to take away the beach is only given by the General Highway Act (5 & 6 Will 4, c. 50), and that this right is limited by sects. 51 & 52, that sect. 51 prevents their taking the property of the plaintiff without his assent, or paying him for it, and that sect. 52 prevents their taking any beach from any place in such a manner as to increase or cause danger from the encroachment of the sea. The defendants, on the other hand, not only insist that they are entitled to do what they have done, under the General Highway Act, but they also contend that if that does not enable them to do so, they can take it by special custom; and if that contention fail, that they are not liable, because it is the act of the contractor whom they have employed and not their act, that the words of the contract employing the contractors told them to do nothing they were not entitled to do, and that the bill ought to be against the contractor and not against them. It is necessary, in consequence of this defence, to distinguish the case of the taking of stones from the beach from below and from above ordinary high water mark. The plaintiff alleges that the defendants have taken stones from the beach from above high water mark. This piece of ground was formerly part of the waste, and was conveyed by the lord of the manor to the plaintiff for valuable consideration. It must therefore be treated, for this purpose, as the private property

of the plaintiff. So treating it, I am of opinion that the defendants are not entitled to take away stones from this part of the cove by means of any custom, and that the custom of a profit à prendre in another man's land is bad, as indeed is admitted by the defendants; and that the attempt to set up a grant from the Crown has no application to this case, as the plaintiff's title proceeds from a grant by the lord of the manor of a part of the waste, which supersedes, or, rather, is inconsisent with, a grant from the Crown: and as to the 53rd section of the statute I think that the defendants have not proceeded under it. With respect to the stones below high water mark, they stand on a very different footing, and the right to them is limited by the 51st and 52nd sections of the statute. The real question which I have to try upon the evidence laid before me is, whether taking away the beach causes or increases the danger of encroachment by the sea. And here I may at once dispose of an argument relied on by the defendants, namely, that if injury has been done, the contractors are the only persons to blame, and that they might be made liable personally. I am of opinion that the defendants are liable for the improper acts of the contractors which flow out of the fulfilment of the contract entered into with the defendants; and that if the contractors under this contract, which does not exclude their taking away such stones, have removed beach from above high water mark, the defendants are liable; and that if the contractors have, by taking beach from below high water mark, caused or increased the danger of the encroachment of the sea, contrary to the provisions of the statute, the defendants are liable, and that the contractors, although they may be liable to the defendants, are not liable to the plaintiff. Of course if the matter were foreign to the contract, then the contractors would be personally liable; but what the contractors have done is that which they contracted to do as part of the contract under which they were employed for value to do a particular act, and if the act cannot be done without injury to the plaintiff, and is against the provisions of sect. 52, it is not they, but the defendants, who are liable. But the real questions to be determined are those of fact. With respect to the first, the taking of shingle from the land of the plaintiff above high water mark, I am satisfied upon the evidence, that no shingle has been taken from that spot since 1866, and the defendants now disclaim the right to take away any unless under the 53rd section, under which they would have to pay for it. With respect to that, therefore, an undertaking by the board that they will not take or authorise the taking of any shingle from that part of the shore will be sufficient. With respect to the taking of shingle below the high water mark, the only question is, whether it accelerates the encroachment of the sea. On this subject there is much conflicting evidence. I think that the evidence is distinct that the sea does encroach, though not, I think, rapidly. But I cannot, upon the evidence, attribute any portion of the encroachment to the abstraction by the defendants of the shingle from the beach. The evidence is uncontradicted that a single tide with the wind in one direction will abstract the greater part of the beach from the cove, and that another tide, with the wind in another direction, will fill the cove with shingle, and I do not think that the abstraction by the defendants of two or three hundred

[ROLLS.

cartloads of shingle from time to time would produce any effect on a shore so influenced by tides and winds, especially when it appears that the shingle is washed along the bottom of the cliffs below low water mark for a considerable distance. I am of opinion that the evidence is not conclusive; but, forming the best opinion I can, the conclusion I have come to is, that the removal of shingle from time to time below high-water mark from the cove to the extent to which it has been removed by the defendants, does not accelerate the encroachment of the sea in the least. I shall, therefore, dismiss the bill; but, having regard to the uncertain character of the evidence, and the unfounded claims which the defendants have put forward, I shall do so without costs, and on the assumption that the defendants continue their disclaimer of all right to take any part of the beach above the level of ordinary high water mark.

Solicitors for the plaintiff, Godwin and Pickett. for Richard Andrews, Modbury, Devon. Solicitors for the defendants, Edmund Byrne, for G. B. Lidstone, Kingsbridge, Devon.

July 8, 15, and 22, 1871.

Re THE MARYLEBONE (STINGO-LANE) IMPROVEMENT ACT 1868; Ex parte EDWARDS.

Lands Clauses Consolidation Act 1845-Notice to take land under compulsory powers--Interest created after service of notice-Compensation. A tenaney created after service of notice to treat is not a subject for compensation by the party serving

the notice.

PETITION.

By the Marylebone (Stingo-lane) Improvement Act 1868, which incorporates the Lands Clauses Consolidation Act 1845, and the Lands Clauses Consolidation Act 1860, the Metropolitan Board of Works were authorised to make a new street commencing in the Marylebone-road at or near the point where Stingo-lane unites with that road and terminating in Upper York-street at the place where Stingo-lane unites with Upper York-street, and to treat and agree for the purchase of any lands authorised to be taken and used by them, and of any subsisting leases, terms, shares, estates, and interest therein and charges thereon, or such of them, or such part thereof as they should think proper.

In pursuance of the powers vested in them by this Act or the Acts incorporated therewith, the Metropolitan Board of Works on the 24th May 1869 served upon Henry Topple a notice to treat for the purchase of his leasehold interest in the messuage and premises No. 6, Stingo-lane, which they required for the purposes of the Act.

At that time Edwards was weekly tenant of a portion of the premises at the rent of 12s. a week. He had resided there for five years, and carried on business as a barber and hairdresser.

On the 14th Jan. 1870 an agreement in writing, dated the 18th Dec. 1869, was executed between Henry Topple of the one part and William Edwards of the other part, whereby Topple agreed to let and Edwards agreed to take, the shop, parlour, and kitchens, and one room upstairs, situated at No. 6, Stingo-lane, at the weekly rent of 12s. for the term of three years from the 18th Dec. 1869.

The petition stated that Topple had on several occasions promised to grant a lease of the rooms in question to Edwards.