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1870

KOEGLER

v. Yr'le.

The upper floor was let by the plaintiff and his partner to the defendants to be used as a godown, and the storing of goods there was a purpose for which it might, in the ordinary course of enjoyment, be used. The storing of the goods on the upper floor was a lawful user, and authorized by the terms of the tenancy. As long as the defendants used the upper floor in a reasonable and proper manner, and did not load an unreasonable and improper quantity of goods upon it, they were not using it for a purpose which the Lord Chancellor says he might turn a non-natural use. To make the principle applicable, it was necessary for the plaintiff to show that the defendants used the floor in an unreasonable and improper manner, and this he has failed to do; because, although in some cases an accident of this kind might of itself be evidence that the upper floor was unreasonably and improperly used, it cannot be 80 where it is proved that the floor was insufficient to bear the weight which might ordinarily and properly be put upon it. Where the facts are equally consistent with the presence or absence of negligence, the plaintiff cannot recover-Cotton v. Wood (1), and the defendants are not bound to show that there was no negligence. Lord Cranworth said he concurred in thinking that the rule of law was correctly stated by Mr. Justice Blackburn in delivering the opinion of the Exchequer Chamber:~"If a person brings “ or accumulates on his land anything which, if it should escape,

may cause damage to his neighbour, he does so at his peril. If “it does escape and cause damage, he is responsible, however care“ful he may have been, and whatever precautions he may have “taken to prevent the damage." But I think these words must be understood, with reference to the facts of the case before him, where the person was not the tenant of his neighbour, and the bringing the thing on the land was not in accordance with or authorized by the terms of a tenancy between them. This appears more clearly in Mr. Justice Blackburn's judgment. He says:-“We think that the true rule of law is that the person who,

-“ “ for his own purposes, brings on his land, and collects and keeps " there anything likely to do mischief if it escapes, must keep it in at his peril; and if he does not do so, he is primâ facie answerable

(1) 8 C, B., N. S., 568.

1870 KOEGLER

YULE,

“ for all the damage which is the natural consequence of its es

cape. He can excuse himself by showing that the escape was “ owing to the plaintiff's default; or, perhaps, that the escape “was the consequence of vis major, or the act of God; but as “nothing of this sort exists here, it is unnecessary to enquire what

excuse would be sufficient. The general rule, as above stated, “seems on principle just. The person whose grass or corn is eaten “ down by the escaping cattle of his neighbour, or whose mine is “ flooded by the water from his neighbour's reservoir, or whose “ cellar is invaded by the filth of his neighbour's privy, or whose “ habitation is made unhealthy by the fumes and noisome vapours ss of his neighbour's alkali works, is damnified without any fault “of his own; and it seems but reasonable and just that the neigh“bour who has brought something on his own property (which was “not naturally there), harmless to others so long as it is “confined to his own property, but which he knows will “ be mischievous if it gets on his neighbour's, should be “obliged to make good the damage which ensues, if he does “not succeed in confining it to his own property. But for “his act in bringing it there no mischief could have accrued, and “it seems but just that he should at his peril keep it there, so “ that no mischief may accrue, and answer for the natural and

anticipated consequence. And upon authority, this, we think, “is established to be the law, whether the things so brought be “ beasts, or water, or filth, or stenches." Mr. Justice Blackburn does not say that, if the person damnified had let the reservoir to his neighbour, and he was only using it in the ordinary way, or had let the alkali works, and the fumes and vapours were only such as were ordinarily caused by the use of the works, that the tenant would be liable for the injury. None of the cases which he proceeds to notice would have supported this proposition, and I think it is clear, from the whole of his judgment, that he would not have applied the rule in such a case. In the case of landlord and tenant, the true rule seems to be that the tenant is not liable, unless the premises are used in an unreasonable and improper manner, or for a different purpose from that for which they were let. The operation of the rule sie utere tuo ut non lædat alienum is qualified by the tenancy, by which an authority

1870

KOEGLER

YULE.

is given to use the premises in a certain manner. It would be obviously unjust to make the tenant liable to make good to the landlord any injury to him which is caused only by the premises being so used. The case of Murchie v. Black (1) was decided upon this principle. There it was held that the licence of the vendor of two ordinary lots of lands, the plaintiff standing in exactly the same position as if his lot had remained in the vendor's possession, took away that which would otherwise have been a cause of action for depriving his building of the support it had from the defendant's land. And Rowbotham v. Walson (2) is an analogous case. The landlord has taken upon himself the risk of the premises being used as a godown, and the rent may be considered as partly paid for it. I think the true principle has been applied in this case, and that, upon the evidence which was given, the plaintiff is not entitled to recover for the damage he has sustained.

Mr. Justice Norman has authorized me to say that, although he does not entirely concur in this judgment, he does not think it necessary to give a separate one.

MARKBY, J.--I am of the same opinion.

Judgment affirmed.

Attorneys for the appellants: Messrs. Collis & Co.

Attorneys for respondents : Messrs. Gray & Sen.

(1) 19 C. B., N. S., 190.

(2) 6 E. & B., 593 ; S. C., 8 H. L. C., 348,

B

[ORIGINAL CRIMINAL.]

Before Mr. Justice Phear.

The QUEEN v. VAUGHAN AND ANOTHER.
IN THE Matter OF S. M. GANESH SUNDARI DEBI, alias MANI.

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Habeas Corpus-Minor-Discretion-Return-Affidavit -- Amendment.

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The return to a writ of habeas corpus must be taken to be true, and cannot be controverted by affidavit. In England, 56 George III., c. 100, s. 4, allows affidavits to be used to controvert the return in criminal matters, but that statute does not apply to this country.

The return to a writ of habeas corpus can, however, be amended.

A girl, under sixteen years of age, has not such a discretion as enables her, by giving her consent, to protect any one from the criminal consequences of inducing her to leave the protection of a lawful guardian ; but where the return to the writ of habeas corpus stated that a girl was above the age of sixteen (though her mother stated her to be of the age of thirteen years and nine months), the Court held that she was of years of discretion to choose for herself under whose protection she would remain.

Mr. Ghose in this case had applied for a writ of habeas corpus directed to J. M. Hazra and the Rev. J. Vaughan, ordering them to bring up

to bring up the body of S. M. Ganesh Sundari Debi, alleged to be a minor under the age of sixteen years. The writ was applied for at the instance of the girl's mother, who, with Chandra Sekhar Sen and Dinanath Sen, the girl's two elder brothers, filed a joint affidavit which stated that the said S. M. Ganesh Sundari Debi was an infant of the age of about thirteen years and nine months; that since her birth, she had been living in the same house with them during the life-time of her father under his control and guardianship; and since his death, about two years ago, under the joint guardianship of her mother and brothers ; that she was married, according to Hindu law, when she was about nine years of age, but her husband died a few months after the marriage, and she never lived in her husband's family, or under the protection of any of his kinsmen, either before or after she became a widow, as they had not sufficient means to enable them to take her

1870

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IN THE MATTER OF

SUNDARI

DEBI, alias MANI.

under their guardianship and protection ; that she was under the guardianship and protection of her mother and brothers until QUEEN the evening of the 29th April 1870, when she was induced by VAUGHAN. one Martha, a native Christian, belonging to the Church Missionary Society, to leave her mother's and brothers' house and s. M. GANESH protection, and had not since returned ; that they had found that she was in the custody of J. M. Hazra, a native convert, and of the Rev. J. Vaughan, at the Church Mission premises, at Amherst street in Calcutta, and had applied to them to return her to her house; but that J. M. Hazra and the Rev. J. Vaughan had refused to allow her to be removed, and still detained her from their custody and guardianship against their consent and against the consent of her husband's kinsmen; that they were informed and believed that J. M. Hazra and the Rev. J. Vaughan had induced her to abjare the Hindu religion, and made her a convert to Christianity, although she was still a minor, and incapable of forming a correct judgment in matters of religion; that they were informed and believe that it was the intention of J. M. Hazra and the Rev. J. Vaughan to marry her forth with to some person professing the Christian faith ; although, being a minor, she was incapable of exercising a proper discretion as regards her marriage; and that they were desirous that the girl should remain under their care and guardianship until she attained her majority, and not in the custody of any person or persons without their consent.

A writ of habeas corpus was therefore issued, to which the following return was made :

“John Mathuramohan Hazra, and James Vaughan, a clerk in holy orders, employed by the Church Missionary Society, at Amherst street in Calcutta, the persons to whom the writ hereto annexed and marked A, subscribed with our initials is directed, do severally hereby certify and return to our sovereign lady the Queen in her High Court of Judicature at Fort William in Bengal; that, before the coming to us of the said writ, to wit, on the evening of Friday, the 29th April last, S. M. Ganesh Sundari Debi, alias Mani, in the said writ named, of her own free will and accord, and without any force, threat, persuasion, or inducement used,

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