B.

I do not consider that the landlord can dilapidate the tenant for not carrying his hay crop. The tenant is the greater loser of the two, having, it appears, lost the whole of his crop. The landlord of course would be entitled to the manurial value of the hay when consumed, but to get this under existing circumstances, and especially taking into consideration the difficulty there has been in getting good hay in many places, would be a difficult matter. Of course if it can be proved that the tenant, under these extraordinary circumstances, has failed to carry part of the crop for the sole purpose of damaging his landlord, then there would be an action at law against him, but it would be most difficult to prove, as the crop belongs to the tenant.

WALTER P. EVANS, Fellow.

C.

The tenant, having cut and allowed the landlord's proportion of the hay crop to remain to rot on the land, discharges his liabilities as to manurial dilapidations. In equity, the tenant is liable to the landlord for the feeding value of his portion, less one-third the full value per ton of the crop, and £1 per ton, the manurial value. The balance is the amount of the dilapidation due to the landlord.

GILBERT MURRAY, Fellow.

D.

It would be well to have an exact quotation from the agreement, as everything depends upon whether there is a binding covenant on the part of the tenant to actually produce at the end of the tenancy so many tons of hay at consuming value.

Judging from the information given in the question, I do not think any claim will lie against the tenant.

H. TRUSTRAM EVE, Fellow.

Replies to Query 791 (Vol. X1., p. 352).

NEW STREET-"SECONDARY ACCESS" TO NEW BUILDINGS.

I think the first thing to be done in the matter would be to examine the by-laws of the District Council. Such by-laws usually provide for the

forming of a street or passage at the rear of buildings for the purpose of removing soil and refuse.

Section 157 Public Health Act, 1875, is silent on the question of back passages, but gives power to make by-laws in connection with drainage, closets, privies, ashpits, &c.

The work on " The Public Health Act, with explanatory notes by J. B. Vesey Fitzgerald, 1875 edition," in a footnote to page 82, says:

66

"A by-law that 'no dwelling-house shall be erected without having 'provided at the rear or side a sufficient roadway for the purpose of "affording efficient means of access to the privy and ashpit belonging to "the same is bad, as being ultra vires; but, semble, per Cockburn, C. J., "that a by-law that there should be no privy or ashpit belonging to the "house without adequate means of access would be good-Waite v. "Garston, 3 L. R., Q. B., 5."

I certainly consider that a passage should be formed from the street to the back of the buildings for sanitary purposes, and if the District Council has no powers at present to require this, the sooner it obtains the necessary powers the better.

The request is, in my opinion, so reasonable, and in fact necessary on sanitary grounds, that I should not feel justified in advising the querist to attempt to evade it.

JOHN HOLDEN, Fellow.

B.

(A) If the by-laws require a secondary access, which is reasonable, the power to enforce one rests with the District Council.

(B) I have not seen such a case.

(c) As plots A and B belong to the same owner, I am of opinion that he can make a secondary access or road at right angles to the front street, each plot contributing a moiety to it and the two using the one road in common as far as it is necessary to extend it for the purpose of access to the backs of the houses and to the outbuildings (if any). Or he may make a secondary access independently to each plot as in D.

The principal entrance to each house will, I suppose, be from the front street, and the secondary entrance means another of less importance, but not necessarily a back road parallel with the front street.

If the authority refuse to accept this form of secondary access, the owner may go to the Court to compel the authority to show cause against his plans, and obtain a decision; or he may proceed with his buildings according to his plan, but showing a secondary access in some form, and risk the authority proceeding against him.

JOHN HEPPER, Fellow.

C.

It is difficult to answer the points A B C in the absence of a knowledge of the by-laws of the District Council concerned.

I can, however, say with certainty that the corporation of my own borough has not the power to refuse plans on the same grounds.

I am not aware that the point has been raised or a decision thereon given in a court of law.

F. J. C. MAY, Fellow.

Replies to Query 792 (Vol. XI., p. 352.)

FARM-SALE BY AUCTION-SUBSEQUENT DISTRAINT FOR RENT.

Δ.

These are legal questions, and therefore a legal opinion should be obtained; but as a layman, and therefore speaking without authority, my answer to the questions is as follows:

1. Certainly not, unless the purchase is uncompleted.

2. The vendor's right of distraint is lost immediately on the completion of the purchase.

CHARLES BIDWELL, Fellow.

B.

1 and 2. If the purchase is completed on the 29th, the vendor has lost his right of distraint; but if from any cause the purchase is not completed on that day, he can distrain on the day following.

JAMES HARRIS, Fellow.

C.

If there is no agreement with the tenant to the contrary, or if the rent has not been paid on any fixed day other than the 29th September, I consider the purchaser has power to distrain on the tenant of the farm for the 12 months' rent due on the 29th September (or half a year if only half a year is due.

If the tenant has always been in the habit of paying in November the rent due Michaelmas, then I think custom might interfere, and the purchaser would not be able to distrain for the half-year's rent due Michaelmas.

In reply to Query No. 2 a very strong antagonistic feeling must exist between the purchaser and the tenant, and, this being the case, I should say the tenant would remove everything belonging to him on the 29th, as he has no power to leave anything on the ground after that date. If he does so, the purchaser can prevent his removing the same until he has compensated him for what would be a trespass.

WALTER P. EVANS, Fellow.

Replies to Query 793 (Vol. XI., p. 353).

AGRICULTURAL HOLDING-CLAIM AFTER SALE BY AUCTION.

A.

As I understand the question, there was no contract between the outgoing tenant and the purchaser, and the latter, not being the legal owner when the tenancy expired on the 2nd February, the tenant should have made his claim on the vendor, who was liable to pay him. Not having so made his claim, I fail to see how he can now set off that claim against rent due to the vendor, and the question as put does not state whether the amount of the claim has been settled; besides, I do not see how the purchaser, not being at the time the legal owner, could have appointed an arbitrator.

DANIEL WATNEY, Past-President.

B.

This is a question which should be submitted to one learned in the law to decide. I should say that the tenant should have sent particulars of his claim to his landlord. There was no privity between him and the purchaser.

ALBERT BUCK, Fellow.

C.

The tenancy of the holding expired on the 2nd of February last, and, the tenant having duly served the vendor with his schedule of claims under the Act in respect of the holding, so far this was in order, rendering the vendor liable for all claims under the Act. Hence the outgoing tenant had no claim on the purchaser, though he retained the right to set off his claim against rent due to the vendor.

GILBERT MURRAY, Fellow.

Replies to Query 794 (Vol. XI., p. 353).

LONDON BUILDING ACT, 1894, SECTION 13-OPEN SPACE
ADJOINING ROADWAY.

A.

Section 13 (1) first prohibits the erection in a highway of any new building or new structure, or the extension of any building or structure, in such manner that any external wall of it or any part

of its forecourt or the fence or boundary of such forecourt shall be nearer than the prescribed distance (20 feet) from the centre of the roadway. Subsection (5) is a proviso, in the case of buildings and structures existing either at the commencement of the Act or existing at any time within seven years previously, that, subject to the arrangements therein stated as to record plans being complied with, "it shall be lawful "to alter or re-erect such building or structure, but so that no land within "the prescribed distance shall be occupied by the re-erected building or "structure, or the forecourt or such other open space as aforesaid (if any), "except that which was occupied within the prescribed distance by the “previously existing building structure, forecourt, or open space." That is particularly clear and plain. I assume from the mention in the question of "record-plans" that the buildings and the fence-wall and gates in the words of the Act, "existed either at the commencement of "this Act or . . . within seven years previously," so that they come within the above-quoted proviso of Subsection (5). If this were so there can be no doubt as to the right to re-erect them as they were before, but without any extension, within the prescribed distance.

I assume that the buildings, if they are "to be inhabited or adapted "to be inhabited by persons of the working class," will comply as to height with the 4th Section of the Amendment Act of 1898 read and construed together with the proviso of Section 13 Subsection (5) of the 1894 Act referred to in the said 4th Section of the Amendment Act.

I think the questioner must be under some misapprehension as to the requirements of the district surveyor, and I would advise an interview with that officer, when, if necessary, he might be asked to point out in the Acts the particular portions on which he bases the requisition as quoted by the questioner.

But if the building be a domestic building, then regard must be had to Section 43, and it must be erected in conformity with the provisions of Part V. of the Act, notwithstanding the occupation of the land by the previous domestic buildings within the times stated, or he must build exactly as before in respect to the "several parts" of the building, or with such deviations only as may be sanctioned by the council. Carefully compare Sections 13 and 43 as to "record-plans" and note the differences in the wording. See as to the part of the subject treated in this paragraph Paynter v. Watson (Law Reports, 1898, C. D., vol. ii. p. 358).

The following other cases might be usefully referred to, viz. : Lary and another v. London County Council, July, 1895, Court of Appeal, Q. B. Div. Held that a fence boundary wall erected where a dwarf wall and railing had previously existed was a "structure" within the meaning of the Local Management Act, 1862, Section 13.

Aylesbury Dairy Co. (respondents) v. London County Council. London Building Act, 1894, Sections 13 and 14. Weekly Notes, 6th November, 1897. But Section 14 since repealed by Amendment Act, 1898. London County Council v. Hill (before Tribunal of Appeal). Appeal allowed. The Times, 29th October, 1898.

ARTHUR HARSTON, Fellow.