ARCHES.]

SHEPPARD v. BENNETT.

[ARCHES.

statute, "That it shall be lawful to every archbishop | Vict. c. 86, to assign grounds why the letters of of this realm to cite any person inhabiting in any bishop's diocese within his province for causes of heresy, if the bishop, or other ordinary immediate thereunto, consent, or do not his duty in punishment of the same," and that, on the whole "the judges of the Arches, by refusing a citation," not letters of request, "denied justice." The dele-' gates reversed the sentence of the Arches; but upon what grounds does not appear. Whether because he ought to have issued an original citation under the 4th section of the Act, or because sufficient grounds were laid by the second letters of request for his acceptance of them (in the present case before me, it will be remembered that no grounds are laid), and he had exercised his discretion improperly in not accepting them; or whether he was bound, without any grounds assigned, to have accepted them, though the latter suggestion, for a reason which I will presently state, seems to have been very improbable. Whiston always protested against the jurisdiction of the delegates, upon the ground that he was no party to the appeal, and that they were acting as a court of original jurisdiction, which they had no power to do; and certainly they were acting in a most unusual manner in this respect. It appears that the delegates did not agree amongst themselves; there was a commission of adjuncts-they arrived at no conclusion; and it is believed that the whole affair was put an end to on the accession of George I., by a general Act of Amnesty which included heresy. I have considered this case at so much length, because it is the only one upon which Sir G. Lee founds his dictum in Butler v. Dolben, 2 Lee, 317. Whiston's case was in 1712, and Butler v. Dolben, was in 1756. Dr. Hay, the most eminent civilian of his day, argued in the latter case, "that the statute 23 Hen. 8, authorises the court to judge of the reasons on which letters of request are granted. This is a new case arising upon the late statute of marriage; the doubtfulness of the jurisdiction is good ground for receiving the letters of request." And what is more remarkable, Dr. Bettesworth, the younger, the son of the judge of the Arches, before whom Whiston's case came, must have been familiar with it; but he argued that "the granting and receiving letters of request are discretionary." The reference of Sir George Lee to the supposed dictum of the delegates in Whiston's case could not have been founded, as the dates show, on personal knowledge, no note or report of any such dictum is to be found. The dictum, moreover, was unnecessary for the decision in Whiston's case, and was not necessary for the decision in Butler v. Dolben, at which Sir George Lee arrived; which was, that the Arches Court had power of accepting letters of request in a matrimonial suit; and that where it was doubtful in which of two jurisdictions the party had his domicil, the Arches Court might accept joint letters of request. And this seems to have been considered by Sir Herbert Jenner, in the case of Stewart v. Bateman, decided in 1842 (3 Curt. p. 207), as the only point which was decided by Sir George Lee. The statute of 23 Hen. 8, s. 3, enacts that "The bishop may make request or instance to the archbishop, bishop, or other superior ordinary or judge, to take, treat, examine, or determine the matter before him or his substitutes; and that to be done in cases only where the law, civil or canon, do affirm execution of such request or instance of jurisdiction to be lawful or tolerable." This very enactment surely implies a power in the Court of Arches to examine whether the law, civil or canon, does affirm the execution of such request to be lawful, Such, moreover, has been the invariable practice up to the time of passing the 3 & 4

request should be accepted. This practice was deemed proper and reasonable by the courts in Westminster Hall, for in the case of Jones v. Jones, Hob. 185; 2 Brown. 27, it having been maintained by the civilians that it was absolutely in the power of the ordinary to send any cause to the arch| bishop at his will, without assigning any special reason, for which they cited the authority of divers canonists, Hobart (and as it seems, the court) said, "That to expound the statute thus, viz., that the | ordinary may, at his will and pleasure, send the subject from one end of the kingdom to another without cause, was both against the letter of the statute, and did utterly elude it; that the purpose of the law was to provide for the ease of the subject more than for the jurisdiction of the ordinary; which appears in that there is action given to the subject and penalty to the King for the vexation, but none to the ordinary; and that this very clause says it is to be done in cases only, &c., which would be a vain restriction, if it left it as general as before, i. e., if it were lawful or tolerable in all cases without cause." My predecessor in this chair, Sir H. J. Fust, in 1842 decided, in a very elaborate judgment, Stewart v. Bateman, 3 Curt., 209, to refuse letters of request presented to him jointly by the Archdeacon and the Chancellor of Norwich, observing indeed, “My object is not to withhold the jurisdiction of this court, but to guard against any question arising in respect to the proper form of exercising it." The decision of Sir George Lee was much referred to by the counsel and by the judge, but I do not find it to have been suggested by either that the accepting letters of request was compulsory on the Court of Arches. I do not mean to assert that the Court of Arches exercises a discretion from which there is no appeal as to accepting or refusing letters of request. There are various instances, such as that of granting or refusing a faculty, in which the court exercises its discretion; but the exercise of such discretion may be controlled and modified on an appeal to the superior court. So far, therefore, as the law and practice previously to the passing of the present Clergy Discipline Act are concerned, I think the Court of Arches had a right to refuse letters of request until proper grounds were assigned why they should be accepted. Secondly, I have to consider whether the enactments in 3 & 4 Vict. c. 86, have taken away such discretion as previously existed. Now it is, in the first place, remarkable that this statute has given the bishop greater personal power than he ever previously possessed, and greater assistance in the exercise of that power. He may hear a cause of this kind sitting in person, with the aid of assessors, which he could not do previously to the passing of this statute. He may also send the case, by letters of request, to the court of the province; but the statute does not enact that the court of the province must accept them when sent, or that it may not require reasons why it should accept them. Moreover, it has been ruled in the case of Golightly v. The Bishop of Chichester, 2 E. & E. 209, by the authority of Wightman, J., Lord Campbell, and Erle, C. J., for Wightman, J., expressly stated in his judgment that the two latter judges concurred with him in opinion, that the bishop had such a discretion, while the remaining judge (Hill, J.) agreed that the bishop had such a discretion in the parti cular case which was before the court. And in the case of Sherwood v. Ray, 1 Moo. 397, the Judicial Committee of the Privy Council, a member of which was Sir John Nichol, the most experienced of all ecclesiastical judges, laid down the law as follows: "And it is to be recollected that this may be the only form in which any individual can question the marriage as a matter of right, for to pro

REG. v. THE INHABITANTS OF THE CITY OF EXETER.

626 Q. B.]

REG. V. THE INHABITANTS OF THE CITY OF EXETER.

[Q. B.

removal of a female pauper, it was shown that, required would be to produce a witness who would the father of the pauper's husband had occupied say that he had heard the tenant say he had paid The entry may be evidence of occupation and paid rent for a tenement in the appellant rent. parish. In order to prove the amount of that and the amount of rent, but not of its payment. rent, the respondents' counsel offered to show that The entries are not of facts against his interest. whilst in the occupation of the tenement, the [HAYES, J.-A declaration against his interest in one case may be highly advantageous to him in father said to his son that he occupied the same another. It may be against his interest to show an as tenant at an annual rent of 201.; and it was held that the evidence was admissible. In that entry of the payment of rent in an action of ejectcase Cockburn, C.J., in giving judgment, says: ment; but in an action against him for forfeiture "I am of opinion that this evidence ought to for nonpayment of rent it would be very much in have been received. It is well established that his favour.] Yes; and in an action of ejectment a declaration made by a person in occupation of it might be evidence to avoid the Statute of real estate that he holds as tenant, is admissible Limitations. Cur. adv. vult. after his decease to rebut the presumption of law arising from the fact of occupation that he was owner in fee simple. The question here is, whether if a person at the time he admits that he is not the owner in fee but is only tenant of the property, states also the amount of rent which he pays for it, that declaration is admissible, not merely to show that his occupation is an occupation as tenant, as distinguished from that of owner, but to show what in fact was the amount of rent which he paid as tenant? Now, it has been held over and over again in the analogous case of declarations against pecuniary interest, that the declaration of the deceased person may be received not only to prove so much contained in it as is adverse to his pecuniary interest but to prove collateral facts stated in it; at all events so far as relates to facts which are not foreign to the declaration, and may be taken to have formed a substantial part of it. That being settled, I cannot see in principle any reason why the same effect should not be given to declarations against proprietary, as to declarations It is true that in this against pecuniary interest. case the declaration was oral, and it has been pressed upon us that a declaration of that kind does not stand on the same footing as an entry made in the course of business which was the evidence in Higham v. Ridgway, 10 East, 109, and I quite admit that as regards the effect of the evidence there is a great difference between them; but that goes rather to weight than the admissibility of the evidence. I am disposed to hold that there is no distinction in principle between written and oral declaration if the other element of admissibility is present, i.e., that the declaration was against pecuniary or proprietary interest; and either is admissible to prove what are not very properly called collateral facts. If in Higham v. Ridgway, instead of an entry, a verbal statement of the same fact had been offered in evidence, the same consequence would have followed." So far, therefore, as authority goes, it is in favour of the appellants. But independently of that, I should be prepared to say that as soon as it is established, which it now is, on the authority of Higham v. Ridgway, and the other cases that you may receive the declaration of a deceased person, as showing not only something adverse to his interest, but all incidental facts contained in that declaration, so far as they are not foreign to it, it follows as a consequence that those collateral facts may be proved by the declaration; and that principle applies to the case before us." This decision exactly meets the present If the declaration is admissible at all, it is admissible for all purposes.

case.

Lopes for the appellants.-The evidence ought not to have been admitted. Here there are two declarations, one verbal and the other in writing. If such evidence is admissible, it is of a very dangerous kind. Suppose an action of ejectment were to be brought, and it were necessary to prove payment of rent by the tenant, all that would be

HAYES, J. delivered the judgment of the court. — This was a case from the Middlesex sessions respecting the admissibility of evidence on the trial of an appeal relating to the settlement of one James McGuire, who had been removed from the Strand union to Exeter, where it was alleged that he had a derivative settlement from his maternal grandfather, gained in St. Sidwell's parish, Exeter, by renting a tenement. It was proved that the grandfather, who had been long since dead, bad rented and occupied a house in St. Sidwell's parish for four years ending at Midsummer 1830. The pauper's mother was called to prove that she had heard her father say that he had rented the house of James Brook at 221. a year, and had paid the rent for it; and she produced a book containing entries in his handwriting stating that he had paid Brook two sums amounting to 57. 10s. for the quarter's rent due at Midsummer 1830. The verbal statement and the entries in the book were both objected to as inadmissible evidence as to the fact of the payment of the rent; but the sessions received them subject to a case which was argued before us in last term, and we are of opinion that they were rightly received by the sessions, as the four years' occupation by the grandfather would have been good presumptive eridence of a seisin in fee by him. His declaration which rebutted the presumption and cut down his estate was clearly admissible as a declaration against proprietary interest. The case is undistinguishable in this respect from Reg. v. Birmingham, 1 B. & S. 763, where it was held on a similar question, a declaration by a deceased occupier of a house, that he held it as an annual tenant at a rent of 201., was evidence, not merely as to the fact of the tenancy, but also as the amount of the rent, and we consider it equally evidence as to the fact of payment. It would be absurd to hold that a declaration was admissible, but to hold that it was no evidence as to one of the main facts which it imported. The principle that a declaration against interest was evidence as to all that formed an especial part of it, was long since settled as to declarations against pecuniary interest, by Higham v. Ridgway, and the numerous cases that followed; and this principle was applied to declarations against proprietary interest in the case of Reg. v. Birmingham, as it had been in several earlier cases. pressed on us that there was a distinction between the declaration and the written entry; but we cannot appreciate this distinction. It was a question of fact, for what the rent was payable; and having regard to the entry and the evidence in the case, it was plain that the entry could only apply to the house occupied by the grandfather. Having regard to the great changes that have in recent times been made admitting the evidence of interested witnesses when alive, it would be most objectionable to lay any narrow restrictions upon the reception of declarations in any way against interest which have been made by witnesses since deceased, and which are frequently the only evidence that can be obtained on the subjects to which they refer, and

It was

Q. B.] The Guardians, &c. of Hendon UNION (apps.) v. WILLIAM BOWLES (resp.)

where the courts are frequently obliged to supply the want of evidence by presumption. Indeed, in cases like the present, we think that, independently of the declarations, the undisturbed occupation by the tenant of the premises for four years would, of itself, lead to the presumption of the fact of payment of the rent.

Judgment for the respondents.

Attorneys for the respondents, Allen and Allen.

Saturday, May 29, 1869.

THE GUARDIANS, &C., OF THE HENDON

UNION

(apps.) v. WILLIAM BOWLES (resp.) Nuisances removal-Nuisance upon premises from the sewage of parties at a distance-18 & 19 Vict. c. 121, s. 12.

In consequence of the overflow of the sewage from the premises of the respondent and the premises of other persons, it ran some distance to the premises of A., where it accumulated and constituted a nuisance. Whilst it was upon the premises of the respondent and the others it was no nuisance, and became such only when it reached the premises of A.:

Held, that an order might be made upon each party whose sewage assisted in causing the nuisance, and that the justices therefore in such case should ascertain whether the discharge from the premises of the defendant was sufficient to create a nuisance, and make an order accordingly.

This was a case stated by justices under the 20 & 21 Vict. c. 43, upon a refusal by them to make an order for the abatement of the nuisance. The

case was as follows:

[Q. B.

meeting, who shall proceed to inquire into the said complaint. And if it be proved to their satisfaction that the nuisance exists, or did exist at the time when the notice was given, or, if removed or discontinued since the notice was given, that it is likely to recur or to be repeated, the justices shall make an order in writing, under their hands and seals, on such person, owner, or occupier for the abatement or discontinuance and prohibition of the nuisance as hereinafter mentioned, and shall also make an order for the payment of all costs incurred up to the time of hearing or making the order for abatement or discontinuance or prohibition of the nuisance.

And it is further enacted by sect. 21 of 29 & 30 Vict. c. 90:

The nuisance authority or chief officer of police shall previous to taking proceedings before a justice under the 12th section of the Nuisance Removal Act 1855, serve a notice on the person by whose act, default, or sufferance the nuisance arises or continues, or, if such person cannot be found or ascertained, on the owner or occupier of the pre mises on which the nuisance arises, to abate the same, and for that purpose to execute such works and to do all such things as may be necessary within a time to be specified in the notice: Provided, first, that where the nuisance arises from the want or defective construction of any structural con

venience, or where there is no occupier of the premises, notice that where the person causing the nuisance cannot be found, under this section shall be served on the owner; secondly,

and it is clear that the nuisance does not arise or continue

by the act, default, or sufferance of the owner or occupier abate the same without farther order, and the costs of so of the premises, then the nuisance authority may itself doing shall be part of the costs of executing the Nuisance Removal Acts and borne accordingly.

It was contended by the respondent that the nuisances in question did not exist upon the premises of the respondent, but only upon the premises of Mr. Appleyard, at a considerable distance from the respondent's premises.

It was admitted by the respondent that one cesspool, marked D as shown in the accompanying plan. was upon his premises receiving the sewage of his hotel, and other cesspools marked B and C on the premises of a neighbouring owner, Mr. Spear, which This case, as re-stated by direction of this honour- received the sewage of his houses as well as those able court by us the undersigned, two of Her of Mr. Spears, from which cesspools it was conveyed Majesty's justices of the peace for the county of by a covered drain to a culvert at C, under the Middlesex, according to the statute made and passed highway, whence it was conveyed for a distance of in the 20 & 21 Vict. c. 43. At the first hearing of about twenty yards by covered pipe drain into an the case it was admitted that a notice dated 14th open ditch on the premises of Mr. Appleyard, and at March 1867, addressed to the respondent, signed by a considerable distance from the said houses. At this the inspector of nuisances for the parish of Hendon, ground it became a nuisance for the first time, and was duly served upon the said respondent, stating was a nuisance only after it had left the premises of that there existed upon certain premises in the occuthe respondent, and had passed into the premises of pation of one Smith and others, of which the said another person over which the respondent had not respondent was the owner, cesspools which over-control, and where he had no power to do any act flowed and drained into an open ditch upon pre- for the removal of the said nuisance. mises occupied by one Charles Appleyard, and which then became and was a nuisance, and was injurious to health, and that the said respondent, being the person by whose act or default such nuisance arose, was thereby required to abate the same, and for that purpose to execute such works and do all such things as might be necessary within five days from the service thereof.

The nuisance so complained of was not removed within the time stated, and on the 21st March a summons was issued addressed to and duly served on the respondent to attend at the petty sessions, in the same terms of complaint as were contained in the notice. The respondent admitted the service of notice and summons, and that he had not complied with the notice to remove the nuisance. The complaint against the respondent was made under the stat. 18 & 19 Vict. c. 121, s. 12, which enacts:

In any case where a nuisance is so ascertained by the local authority to exist, or where the nuisance in their opinion did exist at the time when the notice was given, and, although the same may have been since removed or discontinued, is in their opinion likely to recur or be repeated on the same premises, or any part thereof, they shall cause complaint thereof to be made before a justice of the peace, and such justice shall thereupon issue a summons requiring the person by whose act, default, permission, or sufferance the nuisance arises or continues, or, if such person cannot be found or ascertained, the owner or occupier of the premises on which the nuisance arises, to appear before any two justices in petty session assembled at their usual place of

It was contended by the appellant that the respondent was nevertheless responsible for the nuisance, and that an order might be probably made upon him to remove it, inasmuch as the source of such nuisance was in the cesspool on the respondent's premises and the other cesspools on Mr. Spear's premises used by him, and therefore that he was the person by whose act, default, permission, or sufferance the nuisance arises or continues within the meaning of sect. 12 of 18 & 19 Vict. c. 121.

It was the opinion of us the said justices that, the nuisance being actually upon the premises of Mr. Appleyard, he was the person by whose act, default, permission, or sufferance the nuisance arose and continued, and that the complaint should have been against him; and that, there being no nuisance whatever upon or near the premises of the respondent, it was not competent to us the said justices to trace the original cause of such nuisance to its source, and inquire into the matter in which various persons causing no nuisance individually contributed to form what in the aggregate constituted a nuisance when it was conveyed to the distant premises of another person; and we therefore refused to make such order of removal upon the respondent. Whereupon the local authority, within three days after the said refusal, namely, on the 19th April last, duly applied to us the said justices to state a

Q. B.j

THE GUARDIANS, &c., OF HENDON UNION (apps.) v. WILLIAM BOWLES (resp.)

case setting forth the facts and grounds of our determination for the opinion of this honourable court, and duly entered into the required recognisances, and the said case was stated by us accordingly.

The said case came on for hearing before this honourable court on the 22nd Jan. 1868, and, as we are informed, it was the opinion of this honourable court that the party against whom an order for the removal of a nuisance may be made is not of necessity the party upon whose premises such nuisance is actually existing, but that it is competent to and is the duty of the justices to trace such nuisance to its source, and to ascertain by whom and by whose act or default it is that the matter by which such nuisance is caused in the locality where it is found is conveyed to such locality; and that the case was by your honourable court remitted to us the said justices to be reheard and restated with reference to the view of it so expressed by this honourable court. Accordingly, on the 27th May 1868, the parties again appeared by their counsel before us the said justices, and the case was fully heard with reference to the said directions of this honourable court, and the facts were ascertained to be as follows: The land coloured green upon the annexed plan is the property of the respondent; the land coloured yellow is the property of Mr. James Spear. Upon the land of the respondent are built an hotel and four large dwelling-houses, marked 1, 2, 3, and 4 on the plan; on the land of Mr. Spear are twelve dwelling-houses of smaller size.

The four houses of the respondent are drained by a sealed drain that runs, as shown by the red line upon the plan, along a road to a cesspool on the land of Mr. Spear (marked B upon the plan), and thence the overflow runs, also by a sealed drain, to the ground C upon the plan, where it joins another drain that carries the overflow from the cesspool marked D upon the plan, which receives the drainage of the hotel by the sealed drain as indicated by the red line. By this culvert at C the entire drainage of all the premises on the plan is conveyed under the highway, and emerges on the other side of the highway at E, into a field occupied by Mr. Appleyard as tenant, where it becomes and is an existing nuisance; but the respondent has no right to enter the premises of Mr. Appleyard for the purpose of removing it, cleaning it, sealing it, or otherwise, and so long as he has the control of it the cesspools and drains are sealed, so that no nuisance arises from them. It was proved that the culvert was built by the respondent with the consent of the surveyors of the highway.

It appeared that the overflow of all the twelve houses belonging to Mr. Spear also drains into the same cesspool (B) as the four houses of the respondent.

[Q. B.

the respondent, and the nuisance at the culvert to which all is conveyed is caused partly by the overflow of the cespool B common to the respondent and to Mr. Spear, and partly to the overflow of the cesspool D connected with the hotel, and which is used exclusively by the respondent.

No default is attributable to the respondent's tenants in keeping the cesspools and drains clear. The drains of the respondent are properly constructed, well sealed, and produce no nuisance whatever until they pour out their contents in the land of the adjoining proprietor, Mr. Appleyard where the respondent has no power of entry to cleanse, drain, or otherwise.

The conclusion at which we the said justices arrived was, that no nuisance existed upon the premises of the respondent; that a nuisance existed upon the premises of an adjoining owner, Mr. Appleyard (which is the nuisance complained of), caused by sewage flowing from a drain through a culvert whose contents flow into an open ditch in the premises of the said Mr. Appleyard.

That the sewage flows from two cesspools, one of which, D, belongs to and is used solely by the respon dent, and the contents of the other, B, are supplied in about equal proportions by the four houses of the respondent, and by the twelve houses of Mr. Spear.

That the respondent cannot in any way control the sewage after it leaves the culvert, and that up to the limit of his power over it, it is prevented from becoming a nuisance.

The opinion of this honourable court is requested whether, under the circumstances stated, an order upon the respondent to abate the said nuisance under the above cited section of the statute was properly refused by us.

By sect. 34 it is enacted,

In case of any demand or complaint under this Act to which two or more persons being owners or occupiers of premises, or partly the one or partly the other, may be answerable jointly or in common or severally, it shall be sufficient to proceed against any one or more of them without proceeding against the others or other of them; but nothing herein contained shall prevent the parties so proceeded against from recovering contribution in any case in which they would now be entitled to contribution by law.

Channell appeared on behalf of the appellants.— There was nothing to prevent the respondent from being convicted, as it was by his act, together with that of others, that the nuisance arose. [LUSH, J. Suppose instead of fourteen houses there had been 1000, all contributing to the nuisance; could you summon any one of the occupiers?] The persons who send down the sewage which creates the nuisance are liable. [COCKBURN, C. J.-You say that, although they cannot ascertain the relative proportions of the sewage sent down by each party, yet, as the respondent contributes something, it is sufficient The consequence of this arrangement of the to justify an interference.] The 24th section shows drains is, that at the culvert C there passes the that where there are several contributing to a nuientire of the overflow of the sewage of all the houses sance one only may be proceeded against, who may belonging to the respondent, as also of those belong-in turn obtain contribution from the others. [Cocking to Mr. Spear. It appeared also that the surface BURN, C. J.-There is certainly no reason why and percolating water passing into the cesspools, Appleyard should suffer. MELLOR, J.-He inthey of necessity overflow, and such overflow if deed would seem to be the only innocent party fouled by the contents of the cesspool, and whereso- amongst them.] Brown v. Bussell, L. Rep. 3 Q. B. ever that overflow may merge, it must unavoidably, 251; 18 L. T. Rep. N. S. 19, is quite in point. and does in fact, cause a nuisance.

As to the relative contribution of the respondent's Mellish, Q. C. (J. C. Mathew with him) for the houses and the houses of Mr. Spear to the quantity respondent.-The Act of Parliament has not proof sewage flowing into the culvert C, which by vided for such a case as this. There is no power to emerging from it on the other side on Mr. Apple- abate a part of a nuisance; the whole nuisance yard's premises causes the nuisance, no accurate must be abated. [COCKBURN, C. J.-The 34th secproofs could be obtained. All of the respondent's tion would seem to provide for that by giving condrains are intercepted by cesspools, so that he contribution.] That section does not apply to a case of tributes only the overflow of such cesspools; but the twelve houses of Mr. Spear's are also drained into the same cesspool B, as are the four houses of

this sort, for its language is limited to the cases of owners or occupiers of premises whereon the nuisance exists. The Act is incomplete in not