C. P.] STAMPER v. THE CHURCHWARDENS AND Overseers of SUNDERLAND-NEAR-THE-SEA. [C. P. lodger; but that question has not been argued | house wholly let out in single rooms, and it would before us. For these reasons I think the occupier in this case is not now liable to be rated, but that the owner is liable. M. SMITH, J.-The appellant complains that he is rated to a poor's rate made for the parish of Sunderland for one room occupied by him in a house. The rateable value of the room appearing on the rate is 31. 10s. I am of opinion that the appellant is not liable to be so rated. The case finds that the house, consisting of six rooms, was built and intended for the occupation of one family only, and the structure apparently remains in its original state. The six rooms are let as separate rooms to six persons, there is only one street door and one set of domestic offices, which are used in common by the six occupiers. The owner does not reside in the house, or exercise any control over the occupiers. At the time of the passing of the Representation of the People Act 1867, the owner was rated for the house, the rateable value of which was 201., and as appears in the rate, instead of the occupier," by virtue of the Small Tenements Act (13 & 14 Vict. c. 99), the provisions of which were then in force in Sunderland. The question in the appeal turns on the construction of the 7th clause of the Representation of the People Act 1867, and especially of an enactment found in the shape of an exception to the clause. It will be necessary in order to ascertain the scope and meaning of the enactments in the 7th clause to advert shortly to the two clauses defining the qualifications of voters in boroughs. The 3rd clause defines "the occupation franchise," and requires as part of the qualification the rating of the voter as an ordinary occupier. The 4th clause defines "the lodger franchise," and confers the right to vote on a man who, "as a lodger, has occupied separately and as sole tenant 'lodgings."" Rating forms no part of this qualification. The 3rd clause contains all that need have been enacted to carry out the intention of the Legislature as regards rating, if rating had depended simply on the stat. 43 Eliz., "for the relief of the poor." But in several places owners were rated instead of the occupiers in respect of small tenements by virtue of statutes passed for the purpose, and the Legislature found it necessary to deal with the state of things which so existed. Hence the clause in question, which is in terms a rating clause, and nothing more. This clause (the 7th) does not expressly refer to "The Small Tenements" Acts, but assuming the existence of the mode of rating introduced by them, and confirming the new legislation to Parliamentary boroughs, enacts "That where the owner is rated at the time of the passing of the Act in respect of a dwelling-house or other tenement, instead of the occupier, his liability to be rated in any future poor rate shall cease." The clause then proceeds to enact, "After the passing of the Act no owner of any dwelling-house or other tenement shall be rated to the poor rate instead of the occupier." If the clause had stopped there it would have been clear, but it adds, 66 except as hereinafter mentioned." These words clearly point to an exception in which provision will be made for some cases where, after the passing of the Act, owners shall still be rated instead of the occupiers. The exception, which is affirmative and imperative, runs as follows: "Where the dwelling-house or tenement shall be wholly let out in apartments or lodgings not separately rated, the owner of such dwelling-house or tenement shall be rated in respect thereof to the poor-rate." This exception clearly keeps alive or re-enacts the liability of the owner to be rated instead of the occupier in one class of cases, and the question is whether the case of this house falls within that class. It is a certainly seem that a house so let out is a house wholly let out in apartments or lodgings in the ordinary and proper sense of those words. If this house does not answer the description, it is difficult to suggest a case which would do so. The exception clearly cannot apply to the case of houses in which the owner lives and takes lodgers to live in the same house with him, for the enactment expressly deals with a house "wholly" let out in lodgings, and therefore assumes to deal with houses in which the owners do not live, but wholly and entirely let them out as in this case. Strong support is given by previous legislation to this view of the enactment. The words are evidently taken from Sturges Bourne's Act (59 Geo. 3, c. 12), s. 19, which describes houses "let out in lodgings or in separate apartments." That Act, in order to remedy the mischief arising from the evasion of the payment of rates in such cases, makes provision for rating the owner instead of the occupier. In introducing the same words into the exception with which we are dealing, and which has the same object as Sturges Bourne's Act, viz., to render the owner liable to be rated instead of the occupier in a certain class of cases, it seems reasonable to presume that the Legislature was dealing with the same sort of apartments and lodgings as those described in the former Act. Now it is, I think, clear that the rooms in this house in Sunderland exactly answer the description of apartments in Sturges Bourne's Act. That Act dealt with rooms so occupied as to be rateable under the statute of Elizabeth, and these rooms would be, as rightly contended by the respondents, rateable under that statute if no other legislation had intervened. If, then, these rooms do fall within the description of Sturges Bourne's Act, the inference is very strong that they were intended to be comprised in the enactment with which we are now dealing which employs the same language for the same object as the former Act. As far as I can collect the intention of the Legislature from the language used it was meant to make a distinction between (1) the occupiers of mere rooms and apartments in an ordinary house, and (2) the occupiers of small houses and of parts of houses as defined in the interpretation clause, i. e., occupied as separate dwellings, such as chambers in the inns of courts. The first are really and practically lodgers, differing from mere lodgers, properly so called, only in this, that the owner does not live in the house, but lets it out wholly, instead of partly, in lodgings. The Legislature may well have intended that the occupiers of mere apartments should not be rated as "ordinary occupiers," and it may have been governed by two considerations in making the distinction to which I have adverted, first, the great inconvenience of assessing the occupants and collecting the rates of separate rooms in separate houses of this description as a purely rating ques tion; secondly, the anomaly which might exist in the franchise if a lodger, properly so called, that is, a man who lived in a house partially let out in lodgings, was not entitled to the franchise, unless his lodgings unfurnished were of the value of 10, whilst the man who occupied one room in a house wholly let in lodgings was entitled to it, however small the value of the room might be. The great difficulty in the construction of the enactment arises from the words "not separately rated.' It was contended for the respondents that these words limit the operation of the exception to the case where the rooms are not separately liable to be rated and that "rated" must be read "rateable." But first, the Legislature has used the word "rated," and I cannot construe it to mean "rateable," unless the context compels me to do so. [C. P. But the context leads to a contrary conclusion. If rated is to be read rateable, and the exception is to be construed to be confined to apartments not liable to be rated, as separate tenements, by reason of the occupiers being mere lodgers only, the whole enactment becomes inoperative, because on this hypothesis, the owner would, by the statute of Elizabeth, and without this enactment, be rateable, and he certainly never could be rated instead of the occupier, because on this hypothesis there is no occupier liable to be, or who could be, rated. The words cannot, therefore, I think, be read in a way which would render the enactment in which they are foundings, and in which the owner resides, and those who meaningless and nugatory. Again the words can not mean that in case after the passing of the Act the apartments shall in fact be separately rated, the owner shall not be rated, because that would be in effect to give the overseers an election to rate the occupiers or the owner, which cannot be presumed to have been the intention. But if that were the proper construction it could not avail the respondent in this case, for at the time of making the rate appealed from the occupiers were not, in fact, rated. The words "not separately rated" are satisfied by holding them to mean "not separately rated at the time of the passing of the Act." And they may have been introduced to leave cases, if any, where apartments in a house wholly so let were at the time of the Act separately rated, in statu quo, unaffected by the exception. This limited meaning is not inconsistent with the general intention which seems to me to pervade the enactment, viz., an intention to put the occupiers of lodgings in an ordinary house wholly let out in lodgings, and the owner of a house so let in the same position as the occupiers of lodgings in a house partially so let out and the owner of such house. I have endeavoured to read the minds of the Legislature through the words they have used, adopting the rule of construction given by Lord Wensleydale in Rex v. Inhabitants of Banbury, 1 A. & E. 142, where that learned judge says: "The rule of construction which the court must follow is, to intend the Legislature to have meant what they have actually expressed, unless a manifest incongruity would result from doing so, or unless the context clearly shows that such a construction would not be the right." The above construction will not, as I have before incidentally observed, affect the case of occupiers of apartments in houses so constructed as to be occupied separately, and which by actual severance are separate dwellings, as chambers in the inns of court. These if not dwelling-houses are clearly parts of houses" оссиpied as separate dwellings," and are not, as I think, "apartments or lodgings" within the meaning of those words in the 7th clause. It was made a ques-rate must be quashed. tion during the argument whether the room occupied by the appellant was a "dwelling-house" at all within the meaning of the Act, even as dwellinghouse is interpreted, and whether the distinction between dwelling-house and lodgings, depending on the principle of actual severance in the structure of the house, as defined in the cases of Cook v. Humber, 11 C. B., N. S., 33; and Henrette v. Booth, 15 C. B., N.S., 500, was not intended to be preserved by the late Act. I do not think it necessary to decide whether the room in question ought to have been deemed to be part of a house, as defined in the interpretation clause, or not, supposing the case had to be decided on that ground alone, and the exception in the 7th clause had not been introduced into the Act, because I think, for the reasons already given this room is an apartment or lodging within the meaning of that exception, and that the liability to be rated is governed by that enactment. The consequence will no doubt follow that the present appellant will only be entitled to vote, if at all, MAG. CAS.-VOL. V. upon the lodger franchise. The question of the right to vote is not directly before the court, but reasons may be suggested for considering the occupiers of the house in question to be lodgers," within the meaning of the 4th clause. It may not be necessary to confine the meaning of the words "as a lodger" to lodgers, properly so-called, in a statute, which (in the 7th clause) uses the words "a house wholly let in lodgings," and it may be that the statute can be so construed as to include under the term "lodgers" both the persons who live in houses partially let out in lodglive in houses let out in lodgings, especially where as to the latter class the owner of the house is made liable to be rated. The word "lodger" is not defined in the Act, but the provision to which I have adverted tends to show that the word was not used in the confined sense of "mere lodger" (to quote the words of Maule, J. in Toms (app.) v. Luckett (resp.), 5 C. B. 23), but in a more enlarged sense, intended to describe the occupants of lodgings, such as those existing in the present case, which are neither houses nor severed, and separate dwellings such as chambers and flats. It was said by the court in Cook v. Humber, p. 43, "It seems to us that a lodger is a tenant if the premises are let to him." There is no doubt that that is so, although the owner lives in the same house, and that for many legal purposes there is no distinction as regards the occupant's lodgings between the cases where the house is partially let out, and where it is wholly so let out, provided that the lodgers in each case have the right to exclusive possession of their own rooms. The 8th section does not seem to me to advance the argument for the respondents, for that clause is framed to make provision for the first registration of occupiers in cases where the owner is no longer liable to be rated in their stead, and does not affect the point arising for our decision, which turns on the question whether the owner in the particular case is not still so liable. If the above construction be correct, the operation of the 7th clause, taken as a whole, will be that occupiers of small houses and of separate parts of houses as chambers, will for the future be liable to be rated, whatever the value of their holding, and that the owner will no longer be rateable in respect of them; and so far as rating is concerned, such occupier will be qualified to vote upon the occupation franchise, but that as regards the occupiers of lodgings, where the house is wholly let out in apartments, as in this case, the owner and not the occupiers must be rated, and the occupiers will be entitled to vote, if at all, upon the lodger franchise. For the reasons I have given I think the appellant is entitled to our judgment, and that the Judgment for appellant. Attorneys for appellant, Shum and Crossman, for Kidson, Sunderland. Attorneys for respondents, Young, Maples, Teesdale, and Nelson, for H. B. and C. Wright, Sunderland. Thursday, June 4, 1868. ASHBY (app.) v. HARRIS (resp.) Burial board-Grant of exclusive right of burial- By s. 33 of the 15 & 16 Vict. c. 85, it is enacted that any burial board, under such restrictions as they think proper, may sell the exclusive right of burial in any L C. P.] ASHBY (аpp.) v. part of any burial ground provided by such board, and also the right of erecting a monument, &c.; and by s. 38 the general management, regulation, and control of the burial ground is vested in the board. In pursuance of this Act a burial board in 1857 granted and conveyed to R. "the right and privilege of constructing and making a private grave, and the exclusive rights of burial and interment therein," to hold the same in perpetuity for the purpose of burial, and of erecting and placing therein a monument or stone, but it was provided that if the monument or stone with the appurtenances were not kept in repair by the owner, 66 according to such rules, orders, and regulations as had been, or should from time to time thereafter be made by the board," the grant should be void. R. erected a headstone and curb, with a space in the middle, where she from time to time planted flowers. In 1867 the board made a rule that no person but their own servants should be allowed to plant flowers on graves, and prevented R. from planting them on this grave. Held, that the grant was a grant of an exclusive licence and right to do all such things as were decent for a memorial of the dead; and that the Act gave the board no power by regulations of this description, made after the grant, to interfere with the rights granted; but only to make general rules for the management of the place, as that it should be closed at certain hours: Per Bovill, C. J.-That planting flowers on the grave was keeping the monument with the appurtenances in repair within the terms of the grant. HARRIS (resp.) [C. P. In accordance with this grant, Mrs. Robotham caused her late husband to be buried in the said ground, and erected a headstone and a curb round the sides of the grave, leaving an open space at the top over the body without any stone or other covering. The respondent's husband personally, or by his agents, had been in the habit of planting the above named open space with flowers from the year 1857 to the month of October 1867, by the authority and at the charges of the said Mrs. Robotham. On the 7th June 1867, the board passed the following resolution: That the superintendent make a return of all the graves in the cemetery for which the owners pay to be planted with flowers, and that such owners be written to and informed that the board purpose taking the planting of such graves with flowers under their own direction. That for the future no other persons will be permitted to do so, and that all applications for, and payment in respect of, planting and keeping up such graves with flowers, &c., will have to be made to the clerk at the office or to the superintendent of the cemetery. At a quarterly meeting in September 1867, the recommendation of a committee that, so soon as the owners of graves are apprised that the board undertake the planting of graves themselves, the superintendents have authority to prevent other persons entering the cemetery for the purpose of interfering with such planting was adopted by the board, and at a board holden on the 17th September 1867, it was resolved that the clerk issue notices to the owners of private graves planted with flowers, &c., informing them of the intention of the board to undertake such planting themselves for the This was a case stated by justices under the future. 20 & 21 Vict. c. 43. James Ashby, of Finchley, in the county of Middlesex, an officer duly appointed by the Burial Board of St. Pancras, in the said county, hereinafter called the appellant, appeared before certain justices to answer a complaint by the respondent, for that the said appellant did on the 25th Jan. last unlawfully assault and beat the said respondent. The following facts were proved: That the Burial Board of St. Pancras had provided a burial ground at Finchley, under the provisions of the Burial Act (15 & 16 Vict. c. 85), and that the appellant was an officer duly appointed by the said board, and a duly sworn constable. The respondent was the wife of John Harris, a Interment of Joseph Robotham. of Middlesex, established under the Act 15 & 16 Vict. c. 85. No. 128-By virtue of an Act passed in the 16th and 17th years of the reign of Her Majesty Queen Victoria, intituled an Act to amend the laws concerning the burial of the dead in the metropolis, we, the burial board of St. Pancras aforesaid, being an incorporation incorporated by and under the said Act, in consideration of the sum of 21. 2s. to us in hand, paid by Mrs. Aun Robotham, of No. 4, Queen's-terrace, St. Pancras, do hereby grant and convey unto the said Ann Robotham, the right and privilege of constructing and making a private from time to time hereafter be made by the said burial board Accordingly notice was sent to Mrs. Robotham, that no person, other than those appointed by the board, would be allowed to enter the cemetery for the purpose of planting or keeping up the graves, and with such notice a list of prices fixed by the board to be charged for planting and keeping up graves was sent. The respondent's husband having obtained from Mrs. Robotham a written authority to plant the said grave, sent the respondent and her son to plant it. They were informed of the order of the burial board, and required to desist from planting or otherwise interfering with the grave; but the respondent commenced to dig the open space between the curbstone and over the body for the purpose of sowing flower-seeds, and was forcibly prevented by the appellant, who acted under the instructions of the board, which was the alleged assault. It was not contended that the respondent was digging the grave in an objectionable manner, or about to sow improper seeds, and both parties waived any objection which might, by the 46th section of 24 & 25 Vict. c. 100, have been made to the justices deciding the case. The justices convicted the appellant, but stated this case. If the court should be of opinion that the said burial board was duly authorised to make a rule, order, or regulation, that no person other than those appointed by the said board should be permitted to enter the cemetery for the purpose of planting the graves, then the conviction to be quashed, otherwise to stand of full effect. By the 15 & 16 Vict. c. 85, s. 31 it is enacted that from and after the consecration of a burial ground provided under that Act, the parishioners and inhabitants of such parish shall have the same rights of sepulture in such burial ground as they respectively would have had in the burial ground or burial grounds in and for their respective parishes, subject nevertheless to the provisions of the Act. By sect. 33: Any burial board under such restrictions and conditions as they think proper may sell the exclusive right of burial either in perpetuity or for a limited period in any part of any burial ground provided by such board, and also the right of constructing any vault or place of burial with the exclusive right of burial therein, either in perpetuity or for a limited period, and also the right of erecting and placing any monument, gravestone, tablet, or monumental inscription in such burial ground. Subject to the payment of fees, &c. to the incumbent. By sect. 38: The general management, regulation, and control of the burial grounds provided under this Act shall, subject to the provisions of this Act and the regulations to be made thereunder, be vested in and exercised by the respective burial boards providing the same, provided that any question which shall arise touching the fitness of any monumental inscription placed in any part of the consecrated portions of such ground shall be determined by the bishop of the diocese. J. J. Powell, Q. C., for the appellant.-The burial board had power to manage the cemetery and to make rules and regulations, and if there was any power under the grant to plant graves it was a power to be exercised according to the rules and regulations of the board. The board did not put a stop to the planting, but only required that it should be done by their servants, so that it might be done in a proper manner. There was no power under the grant to plant graves, as the soil was not conveyed nor any right in the soil but only the right of interment and erecting a monument. Grantham, for the respondent.-Whatever power the board have to make regulations, they must be made before the land is sold for burial purposes. After the exclusive right of burial in any portion of the land has been purchased the board cannot impose regulations as to that part of the land which would be in derogation of their own grant. What the respondent was doing was, in point of fact, repairing the grave, and the only regulations the board can make is as to when and how that shall be done, but they cannot exclude the grantee. Powell, in reply.-The fallacy in the argument on the other side is that it proceeds on the supposition that a right to the soil passed by the grant. It is not a grant at all, but only a licence. He cited Bryan v. Whistler, 8 B. & C. 288. BOVILL, C.J.-I am of opinion that the decision of the magistrates was right. The burial board had power, under sect. 33 of the Act, under such restrictions and conditions as they might think proper, to sell the exclusive right of burial, either in perpetuity or for a limited period, in any part of any burial ground provided by them, and also the right of erecting and placing any monument, gravestone, tablet, or memorial inscription in such burial ground. The board having this power, might have imposed restrictions or conditions when the application was made to them by Mrs. Robotham for a place to bury her husband in; but they granted her, by an instrument under their seal, certain rights, and in that instrument there are no restrictions or conditions which prevent her planting flowers on this grave. But the case does not rest simply on the absence of conditions, we must see what the terms of the grant are. It is a grant of the right and privilege of constructing and making a private grave and the exclusive rights of burial and interment therein when made, and of erecting or placing thereon a monument or stone, with a condition that if such monument or stone, with the appurtenances, shall not from time to time be kept in repair by the owner, the grant shall be void. Under this grant a private grave was made with headstones and a curb round the grave, leaving an open space in the middle. What then was the monument or stone with the appurtenances, and what the erections which were made? It seems to me that Mrs. Robotham was [C. P. authorised to construct exactly this description of grave, and she was bound to keep this grave in repair. What then is keeping it in repair? Could it be said that it would be right to let thistles and weeds grow upon it? The degree of repair must depend on the nature of the thing; and so long as the condition of the grave does not offend against decency and propriety, it seems to me that Mrs. Robotham must be the judge of what is a proper state of repair. Suppose a person has an exclusive right to a pew and is liable to keep it in repair; he is not confined to one description of repair, but has a right to the enjoyment of the pew, and to put linings, cushions, and carpets in it; and that is not because he has a right to the freehold but to the use of it. If I entertained any doubt as to the construction of this grant, I should find it removed by what has been done since the grant was made and the stone erected. Mrs. Robotham has always employed the respondent's husband to plant flowers on the and the exercise of the privilege for so long a time is grave up to the time that the present rules were made; strong evidence to show what was the intention of the parties when the grant was made. The burial board have no power to make regulations which would interfere with what they have granted. If they had such a right as they now claim, they could say that they would only grow vegetables on the grave for their own profit. They have granted it in perpetuity, and what right have they to interfere with it now? I think that the magistrates were right, and that the appeal should be dismissed with costs. WILLES, J.-I am of the same opinion. The question turns entirely on the effect of the grant, and in construing it we must have no regard to the words, "rules, orders, or regulations as shall from time to time hereafter be made by the said burial board," because this is a question of right, and if the right has been conveyed by the grant, it would be repugnant to the grant that the board should make these regulations. The proper construction of the words is, that general rules for the management of the place, and not affecting rights, may be made as that the cemetery should be closed at certain hours or times. Then did the grant convey the right in question? I think it clearly did. In Com. Dig. Tit. Cemetery, B. it is said that there are two rights of burial. First, the common right of every parishioner, but that is only a right to be buried in the parish, and not in any particular place, even though there is a custom for a family to be buried in a particular part of the churchyard. Then there is another sort of right of burial, which could not be granted by the rector by parol, and, probably, not under seal; certainly not so as to bind future rectors. That is such a right as is referred to in the case in 8 B. & C. This Act was probably passed to meet that case; and it seems to me that a grant of this description by a rector might be open to the objection that the rector might sow and reap the crop between the monument and the curb-stone, but that is excluded here by the character of the burial board, and I think that the rule which would apply to a rector does not apply here, and that it is excluded by the terms of the grant as Mrs. Robotham would have been entitled to cover the whole of the ground by a monument, and if she did not choose to do that she might leave a small space, and as she might repair the monument, so she may keep this space in decent repair, and I cannot understand why she may not plant in such a way as is decent and usual, and has been considered so for centuries. That is not a notion derived from ancient books, but is in accordance with the habits and customs of the country in which we live. Com. Dig. tit. Cemetery, C. shows that in the case C. P.] METROPOLITAN BOARD OF WORKS (apps.) v. CLEVER (resp.) [C. P. of monuments in churches fitting memorials of the The respondent's property is bounded on the dead may be put up such as coats of arms and hatch-north by Hither Green-lane, and on the south by a ments, and the right is not limited to a mere road called Ladywell-park-road. memorial stone, and a remedy exists if they are defaced: (Spooner v. Brewster, 3 Bing. 136.) The proper conclusion appears to be that this was a grant of an exclusive licence and right to do all such things as are decent for a memorial of the dead, and Mrs. Robotham seems to have done nothing more. I think, therefore, that the conviction should be affirmed with costs. BYLES, J.-I am of the same opinion. This is an appeal from justices, and it must be taken that they went into all the facts material for their decision. There is abundant evidence of what has passed since the year 1857, and there can be no doubt that it was the practice in that year. St. Pancras is a large parish, and is inhabited by different classes, some of whom only have a right to be buried, and to occupy the ground till they are consumed, and make room for others; but this is an exclusive grant in perpetuity, and no doubt it was the usage when the grant was made for people to plant their graves, and being the usage the board cannot derogate from their grant. Judgment for the respondent Attorney for the appellant, W. D. Cooper. Attorney for the respondent, Ricketts. Thursday, June 25, 1868.; METROPOLITAN BOARD OF WORKS (apps.) v. Road formed for building as a street-Back gardens abutting on a new street-25 & 26 Vict. c. 102, s. 98. The 98th section of the Metropolis Management Acts Amendment Act (25 & 26 Vict. c. 102), which requires that "no existing road, passage, or way shall be formed or laid out for building as a street," unless of a certain width, does not apply to new houses whose buck gardens abut upon a road which the builders of other houses have begun to lay out for building as a street, even although the owner has erected a new fence instead of that which divided his ground from the previously existing road. This was an appeal under the provisions of the statute 20 & 21 Vict. c. 43, against the decision of Mr. Maude, a police magistrate for the metropolis, dismissing a complaint made by the appellants against the respondent. The information and complaint were duly laid by the clerk to the appellants on the 5th Nov. 1867, and upon them a summons was issued commanding the respondent to appear and answer the matter of the said complaint on the 12th Nov. At the return of the summons both parties appeared, the case was fully argued, and judgment was reserved till the 26th day of the same month, when, after taking time to consider, it was further adjourned to the 4th Feb. 1868, when the magistrate formally pronounced judgment, and dismissed the said information and complaint; but at the instance of the appellants, who were dissatisfied with the decision in point of law, he granted, for the opinion of the Court of Common Pleas, a case, of which the following are the material parts. The respondent is the lessee for a long term of vears of certain property situate on the south side of Hither Green-lane, near to the Lewisham and Bromley road, Lewisham. Hither Green-lane is a road which has been from time immemorial a public highway, and has been from time to time repaired by the parish authorities. It is of irregular width, being nineteen feet to twenty feet wide in some places, and increasing to twenty-three feet to twenty-four feet in others, but in no part exceeding twenty-five feet. Hither Green-lane has, within the past year or thereabouts, been formed and laid out for building as a street for the purposes of carriage traffic. The respondent has erected eleven houses on his land, and placed those houses so as to front the Ladywell Park-road, which is a new road laid out for building purposes. The respondent's houses have long narrow strips of garden behind extending to the Hither Green-lane, from which they are divided by an oak park fence with a gate to each affording an approach from and exit to the Hither Green-lane. about 1866, and at that time the respondent's land The respondent's said houses were completed was divided from Hither Green-lane by a bank and thorn fence thereon. When the houses were completed the respondent caused the fence to be grubbed up and the bank to be levelled, and set the line of the present oak fencing about three feet within the outermost edge of the old bank. The respondent's oak fencing is placed several feet within the distance of twenty feet, measuring from the centre line or crown of the roadway along a right line drawn at right angles to the course of the said street. The respondent has himself done no act towards forming or laying out Hither Green-lane as a street for the purpose of carriage traffic otherwise than so far as the removal of the old thorn fence and erec tion of the Oak-park fence may be such act, nor has he any present intention of doing any such act or putting up any building fronting towards Hither Green-lane. There are houses erected and built by other persons in Hither Green-lane. A copy of the bye-law, which was duly made by the appellants in pursuance of their powers, and the validity of which is not disputed, is to be found in the appendix hereto, and is to be taken as forming part of the case. The appellants contend that on the above facts the magistrate ought to have convicted the respondent; that the 98th section of the 25 & 26 Vict. c. 102, clearly contemplates the street being made the full width of 40 feet, measuring 20 feet on each side of the centre line of the roadway to the nearest external wall fence or boundary of the houses or land on each side of the street; that for the purposes of the Act the part, whether wall fence or building abutting on the street, is to be deemed the front, although the same plot of land may also abut on another street, and although a house or building fronting the last-mentioned street may be erected thereon; that there need be no act by or intention of the particular owner to form or lay out his land for building purposes, but that if the old road be in fact formed or laid out for building purposes as a street for carriage traffic, all the land on each side situate within 20 feet of the centre line or crown of the roadway, must be laid into the new street as formed for building. The respondent contends, on the other hand, that unless and until some act of user or intention to build happen or exist on the part of the individual owner of land fronting the new street, or unless or until he do some further act than that above |