1863.

May 7. A tenant in possession, having an

equitable interest only

under an agreeement

66

for a lease for a term, is, in equity, an adjoining owner" under the Metropolitan Building Act (18 & 19 Vict. c. 122), and three

months' notice must be given to him before any alterations affecting his

premises can be commenced

by his neighbour, under the powers of that act.

TH

COWEN v. PHILLIPS.

HE question in this case arose on the construction of the Metropolitan Building Act (18 & 19 Vict. c. 122), which enables (s. 83) " the building owner” to pull down and rebuild party-walls, and do other works upon giving his neighbour, who is in the act called "the adjoining owner," "at least three months previous notice," s. 85, (1). The word "owner" is defined in s. 3 as follows:-"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 tenant from year to year, or for less term, or as

a tenant at will."

any

The question arose under the following circumstances :-By a memorandum of agreement, signed but not under seal, Mr. Baker agreed to let to the Plaintiffs, Cowen and Davis, a shop and parlour on the ground floor and two kitchens on the basement, being part of No. 3, Bruton Street, Bond Street.

Messrs. Phillips (the Defendants), who were the occupiers of the adjoining house, being desirous of rebuilding the party-wall between their premises and No. 3, Bruton Street, gave due notice to Mr. Baker only on the 18th of July, 1862. Mr. Baker not having appointed a surveyor to act for him, one was appointed for him by Mr. Phillips under the act. The surveyors made an award on the 2nd of August, 1862, settling how the works were to be done, and awarding that the works

should

should" be commenced at once." No notice whatever was given by Messrs. Phillips to the Plaintiffs. On the 21st of August, 1862, the Defendants' workmen commenced operations and knocked holes through the partywall, thus exposing the shop. The Plaintiffs thereupon filed this bill praying an injunction.

The Plaintiffs submitted that the Defendants had no right to pull down the wall, during the Plaintiffs' tenancy, without the Plaintiffs' consent, or without having served them with the notice required by the statute. They did not object to the wall being pulled down and rebuilt, provided some good and effectual fence or screen was erected to protect the said premises and all the articles therein from exposure and depredation, and provided that all damage done to their premises and articles was made good to them by the Defendants.

An interlocutory injunction had been granted, and the cause now came on for hearing.

Mr. C. Swanston, for the Plaintiffs, argued, that the agreement was valid as a contract, and that, in equity, the Plaintiffs were tenants for three years certain; Parker v. Taswell (a). He asked that the injunction might be made perpetual, and that the Defendants might be ordered to pay the costs. He also asked for an inquiry as to damages; Burgess v. Hills(b).

Mr. Selwyn and Mr. Renshaw, for the Defendants. The agreement not being under seal is void as a legal demise; 7 & 8 Vict. c. 76, s. 4; 8 & 9 Vict. c. 106, s. 3. The Plaintiffs are therefore tenants from year to year or at will, and therefore not within the definition of "owners,"

1863.

COWEN

บ.

PHILLIPS.

(a) 2 De G. & J. 559.

(b) 26 Beav. 244.

1863.

COWEN

บ.

PHILLIPS.

owners," so as to entitle them to notice. The act only contemplates a legal ownership and does not affect equitable interests, and a notice to a trustee would be sufficient without giving notice to every cestui que trust who might be interested. Such a notice has been given

in the present instance.

This is not a case for damages, none having been sustained. They cited Stratton v. Pettit (a); Tress v. Savage (b).

Mr. Hobhouse and Mr. Freeling, for Baker, merely asked for his costs.

The MASTER of the ROLLS.

I think the Plaintiffs have a right to a decree. The real question is, whether the Plaintiffs, as the adjoining owners, were entitled to receive any notice from the Defendants. The Plaintiffs have been in occupation under the agreement set forth in the bill, by which Mr. Baker, who had power to grant an underlease, says, in consideration of 50%., I hereby let you the shop, parlour and kitchen for three years, at the yearly rent of 1057. It is not under seal, and therefore, under the act, it is not a lease; but, although it is void as a lease, the question is, whether it is not valid as an agreement. have no doubt that it is a valid contract, and that this Court would specifically enforce it. Whether a court of law would refuse to give damages is another question, with which I have nothing to do.

The only question is, whether the Plaintiffs were the adjoining owners within the Metropolitan Building Act, which

(a) 16 C. B. Rep. 420.

(b) 4 Ell. & B. 36.

which excepts tenants from year to year. If I am right as to validity of this agreement here, then in equity the Plaintiffs had an interest greater than from year to year, for it was an interest for three years, and unless this clause of the act be confined to bare legal interests, the Plaintiffs were clearly entitled to notice, and I have been referred to no case which says they are not. If this act were confined to bare legal interests, then in the case of a marriage settlement, where the legal estate is vested in trustees, although the husband and wife, the tenants for life, are in possession of their property, and the trustees abroad, the husband and wife are to have no notice of pulling down their house. I am satisfied that this is not the proper construction of the act, nor could it be carried into effect.

According to Mr. Baker's evidence the house was divided in two with two doors; the Defendants were told that he had no power to deal with the part occupied by the Plaintiffs, and that they must be dealt with separately. But the Defendants chose to assume that they are only to deal with Mr. Baker, they treat the premises as his, and, under the 5th section, they ap pointed a surveyor on his behalf upon his neglecting to appoint one, but they give no notice to the Plaintiffs. The arbitrators make an award respecting the works to be done on the premises of which the Plaintiffs are the adjoining owners, and the Defendants break into the premises, notwithstanding the act of parliament says, that they shall not proceed unless they comply with certain forms, which they have not complied with.

I am of opinion that the Defendants are in the wrong, that the Plaintiffs were justified in bringing this suit to a hearing, and that Mr. Baker was properly made a party. There must therefore be a decree for

the

1863.

COWEN

v.

PHILLIPS.

1863.

COWEN

v.

PHILLIPS.

the Plaintiffs with costs up to hearing, including those of Mr. Baker, and there must be an inquiry if any and what damage has been sustained by Plaintiffs.

June 19.

FECHTER v. MONTGOMERY.

The Plaintiff, IN 1862, the Plaintiff, Mr. Fechter, the lessee of the

the manager

of a London theatre, en

gaged the Defendant, a provincial actor desirous of

appearing on the London stage, for two

Lyceum Theatre, entered into negociations with the Defendant, a leading actor of considerable distinction in the provincial theatres, with a view to engage his services. Interviews took place between them, at which the Plaintiff expressed his earnest desire of acting in London in Shakespeare's plays, and said he was willing to make a pecuniary sacrifice for the attainment of that object. He said, Mr. Fechter, pressed on the "remember that I come to you not to be idle, but to subject, the Court inferred act:" to which he replied, " certainly, that is so." The Plaintiff promised the Defendant an immediate appearance, and stated the parts to be given to the Defendant, and he proposed to open with one of such plays.

years. Though

there was nothing ex

an engagement on the part of the Plaintiff to employ the

Defendant for

a reasonable time, and on

Defendant not

The parties shook hands on the bargain, which did the part of the not, however, appear to be very definite; but a day or two afterwards, the Defendant, having expressed a wish that his engagement should be in writing, Mr. Barnett, having (under the Plaintiff's stage manager, wrote to the Defendant

to perform

elsewhere.

The Plaintiff

these circum

stances) delayed the Defendant's appearance for

five months, the Defendant

broke his en

as follows:

"July 28th, 1862.

"Dear Montgomery,-I am directed by Mr. Fechter

to

gagement and went to another theatre:-Held, that he had a right so to do, and that the Plaintiff was not entitled to an interlocutory injunction to prevent his performing there.