Tear v Freebody
| Jurisdiction | England & Wales |
| Judgment Date | 28 April 1858 |
| Date | 28 April 1858 |
| Court | Court of Common Pleas |
English Reports Citation: 140 E.R. 1071
IN THE COURT OF COMMON PLEAS AND IN THE EXCHEQUER CHAMBER
S. C. 6 W. R. 620. See Simpson v. Smith, 1871, L. R. 6 C. P. 95. Distinguished, Manners v. Johnson 1875, 1 Ch. D. 677. See St. Mary, Islington Vestry v. Goodman, 1889, 33Q. B. D. 162.
4C. B.(N.S.)228. TEAE V. FREEBODY 1071 [228] tear v. fkeebody. April 28th, 1858. [S. C. 6 W. E. 520. See Simpson v. Smith, 1871, L. B, 6 C. P.-95. Distinguished, Manners v. Johnson, 1875, 1 Ch. D. 677. See 'St. Mary, Islington Vestry v. Goodman, 1889, 23 Q. B. D. 162.] * By the 1.43rd section of the Metropolis Local Management Act, 18 & 19 Viet. c. 120, : after the 1st of January* 1856, no building is to be erected beyond " the regular line of buildings in the street in which the same is situate :"-Held, that this does not mean a strict mathematical line, but a substantially regular line.-A building is not an "old building" within this statute and the 8th section of the Metropolitan Buildings Act, 18 & 19 Viet. c. 122, unless the ''inclosing walls" (which expression is not satisfied by two mere boundary walls, at either side of the ground) were carried higher than the footings: before the 1st of January, 1856.-By the 28th section of- the 18: & 19 Viet. c-. 120, the duties of vestries are-to be performed by - the majority present. By a bye-law made pursuant to the 202nd section, it was provided that " all questions shall be determined by a show of hands, or by a division, if demanded, with the names recorded :"-Held, that the division or poll might take place after a show of hands.-The plaintiff having erected a building in contravention of the 143rd section of the 18 & 19 Viet. c. 120, a resolution of a vestry was passed directing their surveyor to demolish the portion which incroached - beyond the line. The surveyor having taken down the offending building, placed the materials within a hoarding on the carriage-way, and afterwards removed them to the parish stone-yard, and detained them there as a security and pledge for the costs and expenses of so taking down the building, in the bona fide belief that he was entitled so to do under the resolution- of the vestry ; and the case (settled by an arbitrator) found that the plaintiff could not have obtained the said materials back, without paying the said costs and expenses:-Held, a conversion. This cause came on .for trial before Crowder, J., at the sittings at Westminster after Trinity Term, J857, when an order was made as follows:-"It is ordered by the court, with the consent of all parties, their counsel and attorneys, that a verdict be entered for the plaintiff for the claim in the declaration, costs 40s., and that it be referred to D. K, Esq., barrister-at-law, to state a special case for the opinion of the court, and to find the damages (if any) to which the plaintiff is entitled ; all questions of law, and mixed questions of law and fact, to be reserved for the consideration of the court; the court to have the power of drawing all inferences from the facts which a jury might have drawn : And, by the like consent, it is also ordered that the witnesses to be examined before the said arbitrator touching the matters,referred shall be examined upon, oath, &c.: And, by the like consent, it is also ordered that the said arbitrator shall have all the powers as to certifying, amending, and otherwise, of the court and of a judge of nisi prius and of a judge at chambers: And, by the same consent, it is also ordered that the costs of the cause, ,to; be taxed, and of the reference and case, to be taxed, shall, abide [229] the ev.ent; It is also .ordered, that, in the event of the said arbitrator declining to act, or dying before he shall have made his award, the said parties may, or, if. they canpot agree, the Lord Chief Justice of the court of Common Pleas may,, on application, by either side, appoint a new arbitrator: It is also ordered that the court may, if.-they think fit, from time to time remit the case back to the arbitrator for amendment, alteration, or re-st.atem.ent, wholly or in part: And lastly, it is ordered that either;of the, .said parties shall be at liberty to move tier Majesty's court of Common Pleas that this order may be made; a, rule;of the same court." In pursuance of this order,, the following; case was stated for the opinion of the court:-ò . . .... .;.......' . This was an action of trespass for pulling down part of a house of the plaintiff in Victoria Eoad, Dalston, in the parish of St. Leonard, Shoreditch, in the county of Middlesex, one of the parishes in Schedule A. to the 18 & 19 Viet. c. 120, "An act for the better local management of the metropolis," and also for the conversion of the building materials of the part of the house so pulled down. The first count of the declaration stated that the defendant broke and entered certain land of the plaintiff situate; at Victoria Eoad, Dalston, in the parish of St. Leonard, Shoreditch, in the county of Middlesex, between a. row of houses there called, Priory 1072 TE AR ;!,' FREEB0DY 4 C. B. (N. Si) 230. Terrace and houses called the Marlborough Eoad, and pulled down and prostrated a great part of a house and building of the plaintiff erected on:his said land, and the materials, to wit, bricks, timber, wood, slates, and other building materials of the plaintiff of which the same was built. The second count stated that the defendant converted to his own use, and wrongfully deprived the plaintiff of the use and possession of his goods, to wit, bricks, [230] slates, timber, wood, and other materials; and by reason of-the. premises, one Hutchings, who otherwise would have become tenant of the said house and building of_ the plaintiff for a term of seven years from the %4,th day of June,: 1858, at a rent of 351. per year, refused to become tenant of the same, and the said house and building of the plaintiff had from thence hitherto remained untenanted (a). Claim, 5001. The defendant pleaded,-first, not guilty,--secondly, as to the first count, that the said land, house, building, and materials, were not the land, &c., of the plaintiff, as alleged,-thirdly, as to the first count, that the said parish of St. Leonard, Shoreditch, in the declaration mentioned, was and is one of the parishes mentioned in the schedule A. to an .act of parliament passed, &c. [18 & 19 Viet. c. 120]; that the said bouse and building was erected and built by. the plaintiff on. the .said land after the passing and coming into operation of the said act of parliament; that the said part of the said house and building alleged to have been pulled down and prostrated, was erected and built on the said :land contrary to the, provisions of the said act of parlia ment, that is to say, the said part was, without the consent in writing of the Metropolitan Board of. Works, erected beyond the regular, line iof buildings in the street in which the same was situate, to. wit, the said, Victoria Road in the declara tion mentioned, the distance of such line of buildings from the high road not exceeding thirty feet; wherefore the defendant, as. the servant and. by the. command of the vestry of the said parish of St. Leonard, Shoreditch, did demolish the said part of the said [231] house and building, and, in so doing, did necessarily and unavoidably commit the alleged trespasses in the first count mentioned, doing no unnecessary damage to the plaintiff; and that, before and at the time of the committing: by the defendant of the said alleged trespasses, all things had happened and did exist to render it lawful for the said vestry and the defendant to demolish the said part of the said house and building of the plaintiff under and by virtue of the said statute,-fourthly, as to the said first count, the defendant repeats all the allegations of his third plea, except that, instead of .alleging that he committed the alleged trespasses in demolishing the said part of the said house and building as in the said third plea alleged, he in this plea alleges that he committed the alleged trespasses in order to set back and in setting back the said house and building of the plaintiff according to the true intent and meaning and under the provisions of the said statute,-fifthly, as to the second count, that the goods were not the plaintiff's as alleged,-sixthly, as to the second count, the defendant repeats the allegations of his third plea, and he further says, that, because he could not demolish the said part of the said house and building with in the true intent and meaning of the said act of parliament in the third plea mentioned without removing the materials thereof to a short and'convenient distance in;that behalf, and there leaving the same for the plaintiff, he the defendant did remove the said materials to a short and convenient distance in'that behalf for the plaintiff, as he the defendant lawfully might for the causes aforesaid; that the goods :in the second count mentioned were and are the said materials so removed by him as aforesaid; and that the said removing thereof as aforesaid was and is the alleged grievances in the second-count mentioned,-seventhly, as to the second count, the defendant: repeats [232] the allegations of his fourth and sixth pleas respectively, except that,' instead of alleging that he could not demolish the said part'of the said house and building within the true intent and meaning of the said act of parliament without removing the materials thereof as in the sixth plea alleged, the defendant in this plea alleges that he could not set back the said house and building within the true intent and meaning of the said act of parliament without removing -the said materials as in the sixth plea alleged. ò ' ò'ò-! ; The plaintiff joined issue on the defendant's pleas; and, as to the third, fourth, sixth, and seventh pleas, the plaintiff new-assigned that he sued not only for the (a) The words in italics were added by the...
To continue reading
Request your trial
-
Marcq v Christie Manson and Woods Ltd (t/a Christie's)
...the true owner. As Jack J. said there must be some doubt about this. 37 The other case about lien to which Mr Palmer referred was Tear v Freebody (1858) 4 CBNS 228 in which the surveyor to a parish was found to have taken possession of the plaintiff's materials so as to obtain an unfounded ......
-
Kuwait Airways Corporation v Iraqi Airways Company and Another
...ownership. It is enough if any interest is claimed inconsistent with the right of the person truly entitled. In Tear v. FreebodyENR(1858) 4 C.B.(N.S.) 228 the defendant wrongfully took possession of certain goods with the intention of acquiring a lien, and it was held that he was guilty of ......
-
Antariksa Logistics Pte Ltd v Mc Trans Cargo (S) Pte Ltd
...Leasing Singapore Ltd [2009] 4 SLR (R) 1101; [2009] 4 SLR 1101 (folld) Tavoulareas v Lau [2007] EWCA Civ 474 (refd) Tear v Freebody (1858) 4 CB NS 228; 140 ER 1071 (refd) Teo Gracie v Tay Leng Hong [1987] SLR (R) 315; [1987] SLR 319 (refd) Tinsley v Milligan [1994] 1 AC 340 (folld) Top Ten ......
-
Marcq v Christie Manson and Woods Ltd (t/a Christie's)
...So, although the party delivering the goods for auction is liable by reason of that delivery, the auctioneer is not. 14 Tear v Freebody (1858) 4 CBNS 228 involved a surveyor who properly relied on a resolution of his vestry to pull down a building built beyond the building line. He also rem......
-
RIGHTS UNDER BILLS OF LADING: TRAWLING THROUGH SINGAPORE WATERS
...164 Wrongful retention of goods with the intention of setting up a lien is both a detinue and a form of conversion: see Tear v Freebody(1858) 4 CBNS 228; 140 ER 1071 and Brandeis Goldschmidt Co Ltd v Western Transport Ltd[1981] QB 864. 165 Supra n 63. 166 This tort remains extant in Singapo......