whole of the facts submitted to us, we are of opinion that there is no evidence to justify any other conclusion than that the paupers' residence with the Kings was in fact their permanent home; that there was no evidence that their father ever intended they should return to live with him; and that consequently they acquired a settlement by residence in Chertsey. This is the conclusion the justices should have come to. The order, therefore, must be quashed with costs.

Order quashed. Solicitor for the appellants, J. Rexworthy. Solicitor for the respondents, W. R. Francis, for Paine and Brettell, Chertsey.

Tuesday, Dec. 16, 1884.

(Before GROVE, HAWKINS, and SMITH, JJ.)

REG. v. FLAVEll and another. (a) Bastardy-7 & 8 Vict. c. 101, s. 70-Voluntary witness-Refusal to answer questions-Power of justices to commit to prison-35 & 36 Vict. c. 65, 8. 4.

By sect. 70 of the 7 & 8 Vict. c. 101, justices in petty or special sessions may, upon the request of any party to any bastardy proceedings before them, summon any person to appear as a witness in such proceedings; and if any person so summoned neglect or refuse to appear to give evidence at the time and place appointed in such .. it shall be lawful for such justices by warrant to require such person to be brought before them; and if any person coming or brought before any such justices in any such proceedings refuse to give evidence therein, it shall be lawful for such justices to commit any person to any house of correction within their jurisdiction, &c.

summons

On the hearing of a bastardy summons, the alleged putative father went into the witness-box and denied the statement of the mother. In crossexamination he declined to answer a question (considered by the justices to be material), and offered to withdraw from the case and consent to an order being made against him. The justices commited him to prison for refusing to answer the question.

Held, by Grove and Hawkins, JJ. (dissentiente Smith, J.), that the justices had jurisdiction to commit, for that the words "if any person coming or brought before such justices," in the above section, were not limited to persons who had been summoned to appear and give evidence. In this case a rule nisi for a certiorari had been obtained against two justices of Leamington, calling upon them to show cause why a warrant, under which one Wilkins had been by them ordered to be imprisoned for seven days, should not be brought up to this court to be quashed. Upon the hearing of a bastardy summons, taken out against Wilkins for an order to compel him to contribute towards the support of an illegitimale child, he tendered himself as a witness, and went into the box and denied on oath the statement of the mother that he was the father of the child. In cross-examination he was asked whether

or not he had married a person named Pearson, whom he had represented as his wife, and, if so,

(a) Reported by DUNLOP HILL, Esq., Barrister-at-Law.
MAG. CAS.-VOL. XIII.

[Q.B. DIV.

when and where the ceremony took place. He declined to answer the question, and thereupon the justices threatened to commit him to prison if he did not answer. He still persisted in his refusal, and offered to withdraw from the case and consent to an affiliation order being made against him. The justices, however, committed Wilkins to prison for seven days, or until such time as he should submit himself to examination and answer the question demanded of him.

A rule nisi for a certiorari to bring up such order to be quashed was granted, against which

Dugdale, Q.C. (W. Graham with him) showed cause. The authority given to the justices to commit Wilkins to prison is conferred by sect. 70 of 7 & 8 Vict. c 101. By that section it is provided "that in any proceedings to be had before justices in petty or special sessions, or out of sessions, under the provisions of this Act or of any of the Acts required to be construed as one Act herewith, if any party to such proceedings request that any person be summoned to appear as a witness in such proceedings, it shall be lawful for any justice to summon such person to appear and give evidence upon the matter of such proceedings; and if any person so summoned neglect or refuse to appear to give evidence at the trial and place appointed in such summons, and if proof upon oath be given of personal service of the summons upon such person . . . it shall be lawful for such justice, by warrant under his hand and seal, to require such person to be brought before him, or any justices before whom such proceedings are to be had; and if any person coming or brought before any such justice in any such proceedings refuse to give evidence thereon, it shall be lawful for such justices to commit such person to any house of correction within their jurisdiction, there to remain without bail or mainprize for any time not exceeding fourteen days, or until such person shall sooner submit himself to be examined, and in case of such submission the order of any such justice shall be a sufficient warrant for the discharge of such person." The justices had jurisdiction to commit Wilkins, and he was bound to answer the question. The fact that he was a voluntary witness, and was not summoned to give evidence, is immaterial. He was not served with a subpœna, and was not bound to go into the witnessbox at all, and the justices had no power to compel him to go there. The words in the section 'any person coming before any such justice" are clearly intended to apply to a person who comes forward to give evidence voluntarily, i.e., without having been previously summoned. A reference to sect. 7 of Jervis's Act (11 & 12 Vict. c. 43), would seem to bear this out. There it is provided that a justice may, "if any person is likely to give material evidence and will not voluntarily appear for the purpose of being examined, issue his summons to such person requiring him to appear and if any per

66

son so summoned shall neglect or refuse it shall be lawful for the justice to issue a warrant to bring such person and if on the appearance of such person so summoned either in obedience to the said summons or upon being brought before him by virtue of the said warrant, such person shall refuse to be examined, such justice may by warrant commit such person,' 3 U

which I have read, confined to any person upon whom a summons has been served? Why should they be? What reason can there be for limiting them to that class of persons? It seems to me they include those who come forward voluntarily to give evidence and those who have been summoned as witnesses. It seems to me that a person who comes forward voluntarily to give evidence, and goes into the witness-box and gives evidence, stands exactly in the same position as a person who has been summoned or ordered to appear. I think it would be mischievous to the last extent to hold that the Act only applies to persons who have been brought under compulsion to give evidence. The construction contended for in support of the rule that, after Wilkins-or, rather, his counsel-had withdrawn from the case, and Wilkins had consented to an order being made against him, the justices had no power to commit him to prison for refusing to answer any questions as their jurisdiction had determined, would, if adopted, lead to most serious results, for in any bastardy proceedings, any person, whether party or not, might go into the box and swear just as much or as little as he pleased. He would then be able to withdraw his evidence, and from that moment the justices would be functi officio. It is true, no doubt, that the putative father is not bound to give evidence before the justices; but I think the moment he gives evidence, he puts himself within the power of the justices to treat him in the same way for refusing to answer questions as those who have been summoned are subject to. I am therefore of opinion that the justices were right, and that this rule must be discharged.

GROVE, J.-I am also of opinion that the justices were right, though I must at the same time admit that the matter is not altogether free from doubt. It seems to me the words of the section are to be read in their popular, natural, and ordinary sense, and that we should give them a meaning to their full extent and capacity, unless there is reason on their face to believe that they were not intended to bear that construction because of some inconvenience, which could not have been absent from the mind of the framers of the Act, which must arise from the giving them such large sense. I think the words "coming or brought

any

were clearly intended to include those persons who might happen to be in court and who volunteered to give their evidence, as well as those who were brought there in obedience to the order of the court. Had the words been "and if any person so coming or so brought before such justice," it might reasonably be said that the persons over whom the Legislature intended that the justices should have power to commit would be only those who had been previously summoned. On the other hand, if the words had been put in a separate section, it could hardly be doubted, I should think, that they would include voluntary witnesses. The refusal of a voluntary witness is, as it seems to me, to be treated in the same way as a witness who has been summoned. If the voluntary witness is to be held exempt from this part of the section, it would follow that he might withdraw his evidence or give so much evidence as he pleased, and refuse to answer all the questions that might tell against him, and the justices would have no power to compel him to answer. Of course, a person is not obliged to go into the witness-box unless he has been previously sum

66

[CT. OF APP.

moned; but the magistrates have to get at the truth in the cases before them, and it seems to me the Legislature never intended that they should not have the same power to compel a person to give evidence who has volunteered to go into the witness-box as they have over a person who has been summoned. There is nothing in the words 'coming or brought" to limit them to the words used in the previous part of the section. It cannot be said, as it seems to me, that "coming" is to be read as "coming in obedience to a summons." With regard to the contention that this Act ought to be read by the light of sect. 7 of Jervis's Act, I think the intention of the Legislature was rather to extend the power of the justices to voluntary witnesses, and there seems to be reason for such an intention. The Act under consideration relates to bastardy proceedings, and in such proceedings the alleged putative father is very often a witness in support of his own case. If he does not dispute the case set up by the mother and duly corroborated, an order is made against him. It may be said, therefore, that in bastardy cases, more than in any other, the defendant offers himself as a witness. Upon a grammatical construction of this section, therefore, I am of opinion this rule should be discharged.

Rule discharged.

Solicitor for the applicant, N. C. Barker, for Crowther Davies, Leamington. Solicitor for the justices, H. C. Passman, Leamington.

Supreme Court of Judicature.

COURT OF APPEAL.

June 17, 19, 21, and 26, 1884. (Before BAGGALLAY, COTTON, and LINDLEY, L.JJ.) BARLOW v. KENSINGTON VESTRY. (a) Metropolis Management Amendment Act 1862 (25 & 26 Vict. c. 102), ss. 74, 75-General line of buildings-New street - Vacant site-House at corner of two streets-Order of magistrate-Reduction into writing-Service.

The plaintiff in 1875 became the owner in fee of certain land, covered with buildings, and situated between K.-road on the north and C.-place on the south.

On the 11th Oct. 1875 he obtained the approval of the Metropolitan Board of Works to a new street which would lead across the said land and buildings from north to south, as he intended pulling down his old buildings so that he might erect larger houses on the same site. The street was called "De Vere-gardens."

On the 18th Oct. 1881 the line of buildings in the new street was certified by the superintending architect of the Board of Works. The house, which was the subject of this action, was then being built on a site at the north-east corner of De Veregardens, fronting Kensington-road, and projected on its western side up to the pavement in De Veregardens. This house was not built on the site of any of the old houses, but on the site of a part of the garden of one of them. The Ken

a) Reported by W. C. BISS, Esq., Barrister-at-Law.

sington Vestry obtained an order, under sect. 75 of the Metropolis Management Amendment Act 1862, from a police magistrate, for the demolition of so much of the premises as projected beyond the certified building line. The plaintiff (who had become the mortgagee of the premises) claimed an injunction to restrain the defendants from demolishing any part of the said premises. Held (reversing the decision of Bacon, V.C., 48 L. T. Rep. N. S. 348), that the premises were a building which had been erected beyond the general line of buildings in De Vere-gardens within sect. 75 of the Metropolis Management Amendment Act 1862.

Lord Auckland v. Westminster District Board of Works (26 L. T. Rep. N. S. 961; L. Rep. 7 Ch. App. 597) distinguished. A magistrate made an order under sect. 75 of the Metropolis Management Amendment Act 1862, that a part of a building which projected beyond the general line of buildings should be pulled down within eight weeks. The owner had been summoned, and was present when the order was made, but the order was not drawn up and served on him until the day on which the eight weeks expired.

Held, that the Act being silent as to service, the order could be enforced.

THIS was an appeal from a decision of Bacon, V.C. (reported 48 L. T. Rep. N. S. 348), granting an injunction restraining the Vestry of St. Mary Abbotts, Kensington, from pulling down, under the powers of sect. 75 of the Metropolis Management Amendment Act 1862, a part of a house which they alleged projected beyond the general line of buildings in De Vere-gardens, Kensington. The facts are sufficiently stated in the report of the case in the court below and in the judgment of the Court of Appeal.

Webster, Q.C., Millar, Q.C., and Ingle Joyce, for the appellants, were stopped by the Court.

Marten, Q.C., Rigby, Q.C., and B. B. Rogers, for the plaintiff, used the same arguments as in the court below.

June 26.-COTTON, L.J.-In this case, at the request of Baggallay, L.J., I will give judgment first. It is an appeal from the judgment of Bacon, V.C., by which, at the hearing of the action, he granted an injunction to restrain the defendants, who are the Vestry of St. Mary Abbotts, Kensington, from proceeding to pull down a portion of a house of which the plaintiff is the owner; and the defendants have appealed to us from that judgment. The house in question is the corner house on the east side of a street which runs into Kensington-road at right angles, and which street, so far as the roadway is concerned at any rate, is called De Vere-gardens; and the ground on which the vestry was threatening to pull it down was this, that by the proceedings which had been taken under sect. 75 of the Metropolis Management Amendment Act (25 & 26 Vict. c. 102), under an order made by a magistrate, there had been a direction that so much of this house as projected beyond the general line of building in De Vere-gardens should be taken down, and, inasmuch as it had not been taken down, they were proceeding under

[CT. OF APP.

the authority of the Act to pull down. I shall presently refer to the particular circumstances under which the order was drawn up, but I will not deal with that question now. I will treat the order which was drawn up as an order put into writing, which the Act requires immediately the decision of the magistrate was given; and I will deal with the objection in that respect after I have dealt with the other part of the case. The plaintiff is the owner or the mortgagee in possession of the house, and the order was not made as against him, but was made under the Act as against the builder, the then lessee, who was at the time building. What I will first consider being the principal question, and the important question, which has been argued before us, is whether this portion of the house is liable to be pulled down under sect. 75 of the Act. Now, for the purpose of considering that, it is necessary to go into the state of the land as it was before the present street and houses were built there. Before the year 1875 (which is as early as we need go) there was no road running at right angles towards Kensington-road, which runs east and west, but there were a number of houses facing the Kensington-road, and at the back there was a road and a riding school. In that state of things the present plaintiff bought a considerable block of land, one end of which abutted on the Kensington-road, for the purpose of a building speculation-for laying it out in new streets, and for letting or selling the land for building. Down the centre of this block of land he proposed to make a new road (I will call it road for the present), and for the purpose only of getting proper authority to make the new road he was bound to lay plans before the Metropolitan Board, which he did. There was some difficulty about the plan which was actually sanctioned, but I think it is quite clear what it was. He first laid a plan before the Metropolitan Board which purported to show something about the buildings which were to be put up, but that was a matter with which the Metropolitan Board had nothing to do, and ultimately he laid before the Metropolitan Board a fresh plan, altering the name of the road which he proposed to make and calling it "De Vere-gardens." By this plan he shows a new road stretching from Canning-place, which was the southern end of the block of land he had bought, right through until it runs into the Kensington-road, and that road from one end to the other was a new road, and he called it De Veregardens. Then it is material to observe that there were houses on the northern part of this block which faced the Kensington-road, and among them a public-house called "The House of Call for All Nations," the site of which was, with the exception of what I shall presently mention, on the ground occupied by the roadway of De Veregardens; but there was besides the body of the public-house, a passage by its side, part of which apparently was covered with a trellis work, over which a vine that grew by the side of the publichouse was trained, and under this vine and on the benches or seats, I suppose, would sit those who went to the "House of Call for All Nations," to take refreshments. That was what you may undoubtedly call a part of the "House of Call for All Nations," but on that passage there was really no building; there was this trellis work, which supported the vine, and a wall I suppose on

the other side, but whether there was or not is to ny mind not very material, and the portion of the building which was said to be offending against the 75th section is occupying the site or part of the site of that trellis-covered passage. Now, in order to make the road, it was necessary to take down, amongst others, the public-house called the "House of Call for All Nations," but the roadway does not extend, as I have said, over the site of that trellis-covered passage. The trellis-covered passage abutted partly on a house occupied by a confectioner, and the site of it is now occupied by a portion of the plaintiff's house which is said to be offending against sect. 75. It was suggested to us at first (I think inaccurately) on the result of the evidence that the whole of the land was at once cleared and made vacant land, and was so at the time when the plan was laid before the Metropolitan Board. I think that is inaccurate, but it is to my mind not really material. What was done by the plaintiff was this: From time to time he sold to other persons portions of the land and on these houses were from time to time built, but it is undoubted that when the roadway of De Vere-gardens was made, which must have been before the buildings could have been put up there, the public-house was pulled down, and it necessarily must have been in order to make that roadway. Before the plaintiff's

house was commenced there had been a certain amount of building in De Vere-gardens, that is to say, houses had been built on the east side of De Vere-gardens, which came up to the sides of three houses, which appear on the plans, two, there is no doubt, being in De Vere-gardens, and the third being the plaintiff's house which, or a part of which, is in question in this action. At the time, as I understand, when the two houses which are now immediately abutting on the plaintiff's house were not built, the plaintiff, or the builder who then had the land, so began to build as to show there would be a projection westward beyond the westward projection of the house which had been then built in De Vere-gardens. In that state of circumstances application was made under the Act to Mr. Vulliamy, the surveyor, in order to decide what was the general line of buildings (those are the words of the Act) in De Veregardens. It is called the building line generally, but it really is the general line of buildings, and he gave his decision, and we have his decision and the plans and the awards before us. It was argued before us that what he laid down did not justify the contention on which the magistrate relied, that the portion of the plaintiff's house, assuming it to be in De Vere-gardens, was beyond the general line of buildings in De Vere-gardens. It is put in two ways: in the first place that Mr. Vulliamy has not said that any part of this is beyond the general line of buildings in De Veregardens, and, secondly, that he has not said that this is in De Vere-gardens at all, that in fact he has treated it as not in De Vere-gardens. In my opinion that is not correct. What Mr. Vulliamy did was this, he laid down a red line on the plan, which was before him, which went as far as the northern end of the northernmost of the houses then existing in De Vere-gardens. It there stopped, because there was an intervening space not covered with a house between that and the house of the plaintiff, and he had that line marked on the plan as showing, according to his award,

[CT. OF APP.

the general line of buildings in De Vere-gardens on a reference to him to decide on a complaint that the plaintiff's house was beyond the general building line. So that, in my opinion, the general line of buildings is laid down there for everything which is to be included properly in De Veregardens; and although it stops where the houses stop, that will show, if it is a house within De Vere-gardens and if it is within the provisions of sect. 75, whether it has or has not offended. Therefore, I must consider that the general line of buildings in De Vere-gardens must be held to have been settled by the architect as running so as to leave a projection of this building of the plaintiff to the westward beyond it. But that, of course, does not settle the question, for there are other serious points to be considered. The first point one has to consider is whether this house is within the provisions of sect. 75. Now, that section, after repealing previous sections, says this: "Be it enacted that no building structure or erection shall, without the consent in writing of the Metropolitan Board of Works be erected beyond the general line of buildings in any street, place, or row of houses in which the same is situate." I need not read the rest. The first point is this, To what does that apply? Does it apply to a house which is built on the site of an old house which has been pulled down, and which has occupied a more prominent position; by which I mean a position stretching farther towards the roadway than the other houses? In my opinion, the rule was correctly laid down by Mellish, L.J., and also by James, L.J. (though not exactly in the same words), in the case of Lord Auckland v. The Westminster District Board of Works (26 L. T. Rep. N. S. 961; L. Rep. 7 Ch. App. 597), a case which has been much referred to. Mellish, L.J. says, after referring to sect. 74, to which I may have to refer presently: "To make the two sections consistent with each other, I think we must construe the words 'no building structure or erection' in the 75th section to mean no building structure or erection built or erected for the first time." The language is imperfect; "for the first time" requires some explanation. Of course, every new house that is put up must be erected for the first time; but what he means obviously is this: a house which is not built as a restoration of an old house-a building which is not built as a restoration of an old building, but one which is to be considered as built de novo as regards the rights of a house. Although James, L.J., with reference to the certificate which was before him, which mentioned vacant land uses the word "vacant," I think he really means the same thing, because he says: "I am of opinion, having regard to the old clauses, in lieu of which this 75th section was enacted, and having regard to the 74th section, which immediately precedes it, and to the whole context of the Act, and the whole spirit of recent legislation with regard to dealing with private persons' property, that the 75th section was only meant to apply to the case of a new building, structure, or erection being built on land which, for the purposes of the Act, would properly have been described by Mr. Vulliamy as vacant ground." Mr. Vulliamy, who in his plan had laid down the building line in that case beyond York-place, had described a site of the old house which the plaintiff had