Mourilyan and Spinks, Appellants, against Labalmondiere, Respondent
| Jurisdiction | England & Wales |
| Judgment Date | 16 January 1861 |
| Date | 16 January 1861 |
| Court | High Court |
English Reports Citation: 120 E.R. 1009
IN THE COURT OF QUEEN'S BENCH AND EXCHEQUER CHAMBER
S. C. 30 L. J. M. C. 95; 3 L. T. 668; 7 Jur. N. S. 627; 9 W. R. 341.
The following case may be conveniently inserted here. ' ' - mourilyan and spinks, Appellants, against labalmondiere, Respondent. [Wednesday, January 16th, 1861.] By sect. 72 of the Metropolitan Building Act (18 & 19 Viet, c. 122), the Commissioners may, upon the report of their surveyor that a structure is in a dangerous state, give written notice " to the owner or occupier of such structure" "to take down, secure or repair the same." By sect. 73, "if the owner or occupier to whom notice is given as last aforesaid, fails to comply " " with the requisition of such notice," a justice may, upon complaint by the Commissioners, " order the owner, or, on his default, the occupier," to take down, repair or secure the structure : suid, if it is not so taken down, &c. within the time named in such order, the Commissioners may execute the repairs; " and all expences incurred by the said Commissioners" in so doing "shall be paid by the owner of such structure, but without prejudice to his right to recover the same from any lessee or other person liable to the expences of repairs." By sect. 3 " ' owner' shall apply to every person in possession or receipt either of the whole or of any part of the rents or profits of any land or tenement, or in the occupation of such land or tenement other than as a tenant from year to year or for any less term, or as a tenant at will."-Appellants, owners in fee of premises, part of which was used as a chapel, demised them for twenty one years to N., who entered into 1010 MOURILYAN V. LABALMONDIERE 1 EL. & EL. 534. possession. The chapel was shut up and unoccupied except when used, on Sundays, for divine service. Appellants having failed to comply with a notice to them, by the Commissioners, to repair and secure the chapel, and also with an order of a justice, made upon complaint by the Commissioners, requiring appellants to comply with the requisition of such notice, the Commissioners executed the repairs : and, on their complaint, a justice made an order on the appellants for payment of the expences so incurred by the Commissioners.-Held, that N. was the owner of the premises within the meaning of the statute, and, as such, was primarily liable for the expences in question : and that the order for payment was bad for being directed to the appellants, instead of to N. [S. C. 30 L. J. M. C. 95; 3 L. T. 668 ; 7 Jur. N. S. 627 ; 9 W. R. 341.] This was a case stated under stat. 20 & 21 Viet. c. 43, and was substantially as follows. [534] The appellants, at the time of the execution of the lease hereinafter mentioned, were seised in fee of a building known by the name of The Bethesda Chapel, and hereinafter called " the premises." These premises were in the parish of Bermondsey, in the county of Surrey, within the Metropolitan Police district, and not within the city of London. On 1st January, 1858, they executed a lease of the premises to one James Neill, who at that time had been and was in possession thereof. The lease was for twenty-one years from 25th December then next, at a yearly rent of 601., payable quarterly. It contained covenants by Neill, in the ordinary form, to pay all rates and taxes, to expend 2001. in repairs, and to keep the premises in proper repair; to insure against fire, and to give notice to the lessors of any assignment of the premises, or any part thereof. Captain Douglas Labalmondiere, being the Commissioner of Police of the Metropolis authorized to act in the matter of the Metropolitan Building Act, 1855 (18 & 19 Viet. c. 122), being informed that the premises were in a dangerous state, required a surveyor to survey the said structure. The surveyor surveyed it on 2d February, 1858, and made a written report to the Commissioners, who thereupon shored up the building. No notice under the Metropolitan Building Act, 1855, or otherwise, was given to any person or persons except as follows. The Commissioners, on 5th February, 1858, not then knowing the residence of the owner or his agents, and no occupier being found actually on the premises, caused to be affixed to a conspicuous part of the same premises a notice in duplicate, one addressed [535] to the owner, the other to the...
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Hunt and Another v Harris
...to undertenants for a greater length of tenancy than from year to year. But for the case of MourilyaM, App., Labalmondiere, Reap., 1 Ellis & Ellis, 533, it would have been confidently submitted that "owner" meant either ona who is in possession of the rents and profits of the premises, or o......