places, would, of course, have been a matter of much greater difficulty. Moreover, the liability of the rector to repair the chancel is not universal. It is said that where there are both rector and vicar in the same church they shall, there being no custom to the contrary, contribute to the repair of the chancel in proportion to their benefice, Rogers' Ecclesiastical Law, 159, citing Linwoode, 253; or if there be a perpetual vicar, the repair may be cast upon him, Com. Dig. "Esglise," G 2.

Nor does the general right of a rector to have a pew in the chancel carry with it any further consequence as relates to any peculiar right or interest in that part of the church. Originally vicars had the like right. "The right of a seat in the chancel," says Burn (Ecclesiastical Law, tit. "Church," § 13), was originally in every vicar." Further on he says, "It is a very groundless notion with impropriators that they have the same right in the great chancel that a nobleman hath in a lesser. These lesser chancels are supposed by lawyers to have been erected for the sole use of these noble persons; whereas it is clear the great chancels were originally for the use of clergy and people, but especially for the celebration of the Eucharist and other public offices of religion, there to be performed by the curate and his assistants. That the parsons repair these great chancels doth not at all prove their sole right to them; for they were bound originally to repair the church as well as the chancel; and, of common right, the repairs of the church are still in the parson. It is custom only eases them of this burthen. The ordinary hath no power to order morning or evening prayer to be said in noblemen's chancels; but he can order them to be said in the great chancel."

There appears to be no doubt that the jurisdiction of the ordinary for the benefit of the parishioners extends to the chancel as well as to the church. Gibson says, that "the seats in the chancel are under the disposition of the ordinary, in like manner as those in the body of the church," which, he says, needs only to be mentioned, "because there can be no real ground for exempting it from the power of the ordinary, since the freehold of the church is as much in the parson as the freehold of the chancel; but this hinders not the authority of the ordinary in the church, and, therefore, not in the chancel." (Cod. Jur. Eccles. Angl. 226.) In Clifford v. Wicks, Bayley, J., says, “The general rule is, that the rector is entitled to the principal pew in the chancel, but that the ordinary may grant permission to other persons to have pews there." Mr. Rogers, in his work on Ecclesiastical Law, tit. "Church," p. 187, says, "It seems to be now generally considered that the jurisdiction of the ordinary extends to the chancel as well as to the other parts of the church. The circumstance that the freehold is in the rector would equally be an objection to the power of the ordinary over the other parts; for

the freehold of the whole is in the rector. Neither does the circumstance of his being bound to repair affect the question; for he is bound to repair the chancel of common right, as the parishioners are bound of common right to repair the nave of the church; but that gives them no right to dispose of seats in the nave, nor in any way ousts the jurisdiction of the ordinary." In Rich v. Bushnell (4 Hag. 164), it was held, that the lay rector is not entitled as of right to make a vault or fix tablets in the chancel without leave of the ordinary, nor is he entitled to a faculty for such purposes without laying before the ordinary the particulars, so as to satisfy him that the tablets or vaults will not interrupt the parishioners in the use and enjoyment of the chancel.

In giving judgment, Sir J. Nicholl observed: "Though the freehold of the chancel may be in the rector, lay or spiritual, as, by a sort of legal fiction, the freehold of the church is in the incumbent ; and though the burthen of repairing the chancel may rest on such rector, yet the use of it belongs to the parishioners for the decent and convenient celebration of the holy communion, and the solemnisation of marriage; and, by the Rubric, that portion of the communion service which forms a part of the morning service is directed to be read from the communion table, which is appointed to stand in the body of the church, or in the chancel."

In the case of Jarrett v. Steele, which was a suit instituted in the Arches Court of Canterbury, by a vicar against the lessee of the great tithes, for having forced open the door of the chancel, on which the vicar had placed a lock, and pulled down part of two pews with a view to the erection of new ones, Sir John Nicholl, in giving judgment, said, that "all persons ought to understand that the sacred edifice of the church is under the protection of the ecclesiastical laws, as administered in the Ecclesiastical Courts ; that the possession of the church is in the minister and the churchwardens; and that no person has a right to enter it when it is not open for divine service, except by their permission." It evidently did not occur to the mind of the learned Judge to doubt that the vicar was entitled to the possession of the chancel, or that the suit was rightly instituted by him.

On these grounds, we are of opinion that our judg ment should be for the defendants.

hills, discharged water with lead intermixed, into drains communicating with "swallets," which are rents in the limestone rock, having an open mouth in the surface on the top of the hills, and having an underground passage, for water running into this mouth, communicating with an outlet at which the water escapes in an open stream at the foot of the hills. The water conveyed by the defendant into these swallets ultimately mingled with the stream flowing into the plaintiff's mill, and, by polluting it, renit unfit for the purpose of the plaintiff's manufacture:

Held, that an action lay in respect of such pollution. The principle of Chasemore v. Richards does not apply to the pollution of the water percolating under a man's own land to such an extent as to cause a neighbouring stream to become polluted.

This was an action brought for polluting the plaintiff's stream, and rendering it unfit for the purpose for which the plaintiff had from time immemorial | used it.

cessors in their said business, and free from the fouling and pollution hereinafter mentioned.

The arbitrator found, as a fact (subject to the opinion of this Court on the point of law stated), that until those times the said water had from time immemorial run and flowed as of right; and the plaintiff and the preceding occupiers of the said mill and lands had from time immemorial been entitled as of right to have the same run and flow; and the plaintiff at those times was entitled as of right to have the same run and flow from the said cavern into the said basin, and from thence through the said lands into the said mill, in a pure and unpolluted state, and of good and proper quality for the use of the plaintiff and the preceding occupiers of the said mill in their said business, and without and free from the pollution and fouling hereinafter mentioned.

The following case was stated by the arbitrator, at the request of the parties, for the opinion of this Court:

The plaintiff is a paper manufacturer, and at the time of the acts now complained of was carrying on his business at Wookey-Hole, Somersetshire, where he was possessed of, and the occupier of, an ancient mill and lands, which had been used from time immemorial for the purposes of the manufacture of paper.

The said mill and lands are situate in a valley, at the foot of the Mendip Hills, which slope in a southerly direction towards the said mill and lands, and then terminate in a tall precipitous rock abutting on the said lands.

Inside this rock, and at an elevation of a few feet above the said lands, is, and has been from time immemorial, a natural cavern, and the water produced by the rainfall in a portion of the Mendip Hills has from time immemorial run by underground passages into this cavern, and, after traversing the floor of the cavern in a defined stream, has run and flowed by an underground passage from and out of the cavern, at the rate of many thousand gallons a minute, into an open natural basin in the said lands of the plaintiff at the foot of the said rock, and from thence in an open and defined stream unto and into the said mill of the plaintiff, and which has been used from time immemorial by the occupiers of the said mill and lands for the manufacture of paper therewith. It was being used for that purpose by the plaintiff at the time of the acts of the defendant now complained of. Until the time of the acts now complained of, the said water from time immemorial had flowed into the mill in a pure and unpolluted state, and of good and proper quality for the use of the plaintiff and his prede

quarters.

At the time the defendant so became the occupier of the Priddy Minery the surface soil thereof, to the extent of several feet in depth, consisted of an artificial soil having minute particles of lead and pieces of lead ore, called "slags," intermixed with it.

The

In 1858 and 1859 the defendant for the first time established, and subsequently worked, at the Priddy Minery, a machinery for extracting from the said soil the above-mentioned minute particles of lead. Previously the slags only had been extracted. minute particles of lead were extracted by a process carried on in circular pits constructed for the purpose, and afterwards the refuse soil and water, having a small quantity of lead intermixed with it, was discharged from the pits in muddy streams into drains, which at the times and on the occasions of the acts complained of led into two "swallets" on the Priddy Minery, as the defendant was aware.

A swallet is a rent in the limestone rock having an open funnel-shaped mouth in the surface of the rock on the top of the hills, and having an underground passage for water running into its mouth, communicating with an outlet at which the water escapes in an open stream at the foot of the hills. These swallets are found in great numbers in the Mendip Hills, and serve as natural drains to the rainfall of the hills.

The arbitrator found that on the occasions of the acts complained of, the two swallets in the Priddy Minery had each of them a passage for water similar to that hereinbefore described, communicating with the said cavern at Wookey-Hole, and capable of receiving and discharging, the one from seven to eight gallons of water a minute, and the other rather more, and that the water passing into the said swallets respectively on these occasions ran through these respective water

passages into the said cavern, and from thence mingled with the stream flowing through the said cavern as aforesaid into the said basin in the said lands of the plaintiff, and thence unto and into the said mill of the plaintiff. And he further found that the defendant did on various occasions before the making of the award, being the occasions complained of, discharge large quantities of the muddy streams from the said pits through the drains aforesaid into the said two swallets respectively, and by so doing did foul and pollute the water flowing from the said cavern into the said basin on the plaintiff's land, and thence unto and into his mill, and render the same unfit for his use in his business as a paper manufacturer.

The defendant had notice from the plaintiff and others before he commenced working his said machinery that the probable effect of his discharging the muddy streams from the pits in the manner aforesaid would be to foul the plaintiff's water, and render it unfit for the purpose for which he used it. The arbi

trator further found that there was no prescriptive right on the part of the defendant to discharge the muddy water into the said two swallets, the existence of which was contended for by the defendants.

The point of law required by the parties to be stated was, whether, under the circumstances set forth, this

action was maintainable at law? If the Court should be of opinion that it was maintainable, then the verdict entered for the plaintiff was to stand damages to be reduced to 2007. If not, the verdict was to be set aside, and a nonsuit entered instead thereof.

Karslake, Q.C. (with him Horace Lloyd), for the plaintiff, contended that this was the ordinary case of the pollution of a watercourse, and that, on the findings of the arbitrator, the plaintiff was entitled to judgment.

Coleridge, Q.C. (with him Bere), for the defendant. If the direct consequence of the defendant's act was to pollute a watercourse or to create a nuisance, I admit that I am out of Court. I contend, however, that all that he did was to make a lawful use of the water

when it arrives there, it arrives in a polluted condition?]

I say that, in law, there is no distinction between the lawful use of your own land so as to abstract the underground water, and the lawful use of the water on your own land, so as to pollute the underground water. He referred to

Gale on Easements, 369 (3rd ed.);
Smith v. Kenrick, 7 C. B. 515.
[MELLOR, J., referred to the case of

Reg. v. Metropolitan Board of Works, recently decided in this Court (1 N. R. 473).] COCKBURN, C.J.-This case is clearly distinguishable from Chasemore v. Richards, and falls under that class to which the well-known maxim sic utere tuo ut alienum non lædas is applicable. In Chasemore v. Richards it was properly decided that until the water rises to the surface, the law gives no right to the party

who would have a right, if it came to the surface in the

condition of a body of water flowing or standing; but in this case the right of the plaintiff to the water cannot be disputed. Then, through the act of the defendant, the water to which the plaintiff has this right has been fouled and polluted, and I must say that that once being ascertained, it does not follow that there is any difference because the water, after it has been polluted, flows only a short time over the surface and then flows underneath until it reaches the plaintiff's stream. The plaintiff was entitled to the flow of the water in its accustomed quantity and quality. Then, by the act of the defendant, the plaintiff's right to the water has been injuriously affected, and I am clear that the plaintiff has here a cause of action, and that our judgment must be for him.

BLACKBURN, J.-I am of the same opinion. I think the defendant had a clear right to use the water for washing the lead upon his own land, but then he had the dirty water to dispose of; and I take it, that the principle laid down in Tennant v. Goldwin, applies, that if a man on his own land makes filth, any dirt it is must keep it, that it may not trespass." I as it is put in the report in Salkeld (360), "he whose think, therefore, the defendant was under an obligation injure his neighbour. The result of what the defendto take care that it did not go in such a form as to ant did was, that the polluted water came into, and

[BLACKBURN, J.-Is there not a great difference between abstracting the water so that it never arrives at your neighbour's land and corrupting it, so that,

I quite

entitled to have pure, but which thereby became to constitute both damnum and injuria. corrupted and poisoned by the lead; and that seems agree with the distinction which has been pointed out between drawing off the water before it became the plaintiff's, and corrupting it afterwards. I think, therefore, our judgment should be for the plaintiff.

MELLOR, J., concurred.

Judgment for the plaintiff.

6 JUNE, 1863.]

Q. B.

30 MAY, 1863.

} TAYLOR v. NEWMAN.

Larceny Act-24 & 25 Vict. c. 96, sect. 23.

A person who, with the bonâ fide intention of protecting his crops, and for no other purpose, shoots a pigeon that is feeding on the corn growing in his fields, cannot be convicted under sect. 23 of the Larceny Act, for unlawfully and wilfully killing a pigeon. Case stated by justices of Essex, under 20 & 21 Vict.

c. 43.

The appellant occupied land near to other lands which were in the occupation of one Loyd. Loyd kept a great number of house-pigeons, which were in the habit of alighting upon the appellant's land and there eating his corn. The appellant wrote to Loyd informing him that, although he should be unwilling to do anything unneighbourly, nevertheless he should for his own protection be compelled to shoot Loyd's pigeons if they continued to come upon his (the appellant's) land and eat his corn. Shortly afterwards Loyd's pigeons did alight upon a corn field of the appellant's. The appellant thereupon fired one barrel of a gun to cause the pigeons to rise from the ground, and as they rose he fired again and killed one pigeon, and left it dead upon the ground. Loyd thereupon obtained a summons against the appellant, charging him with unlawfully and wilfully killing a pigeon, value 2s. 6d., under such circumstances as did not amount to a larceny at Common Law.

The above facts having been proved, the justices convicted the appellant, under 24 & 25 Vict. c. 96, sect. 23, and fined him 27., and 2s. 6d. the value of the bird. The question for the opinion of the Court was, whether they ought so to have convicted the appellant

or not.

By sect. 23 of the Larceny Act (24 & 25 Vict. c. 96), it is enacted that "whosoever shall unlawfully and wilfully kill, wound, or take any house-dove or pigeon under such circumstances as shall not amount to a larceny at Common Law, shall, on conviction before a justice of the peace, forfeit and pay, over and above the value of the bird, any sum not exceeding 21."

G. Francis, for the respondent, in support of the

conviction.

Francis, in reply.

If A shoot B's pigeon with a wilful intention to deprive B of the use and possession of it, that is an unlawful killing within the meaning of the statute.

BLACKBURN, J.-This question is not altogether free from doubt, but upon the whole I think that we shall put a proper construction upon the Act, if we say, that the appellant ought not to have been convicted. The Act is an Act to consolidate the laws relating to larceny and similar offences, and it deals only with those offences which are ejusdem generis with larceny. The 23rd sect. makes it an offence "unlawfully and wilfully to kill a pigeon under such circumstances as do not amount to larceny at Common Law," and the question we have to decide is, what is an "unlawful How far a killing" within the meaning of the Act. pigeon, when flying about, is property, and the subject of larceny, and how far the killing of a pigeon, while flying about, is an offence ejusdem generis with larceny, are matters of doubt. In R. v. Cheafor (21 L. J. M. C. 43) it was held, that if the pigeon was a reclaimed bird, it was the subject of larceny, although not in a state of confinement; but upon the prior cases that proposition is not, I think, by any