include that. I mean that the charitable legacies are not included in "pecuniary legacies," though, of course, they are pecuniary legacies, and if we hold that " 'debenture stock or shares" were general legacies, perhaps in legal intendment they would come under the meaning of "pecuniary legacies." But that is not a proper way of construing a man's will—first of all to find a legal definition which he has never heard of, and then to put that in the will as if it were part of the will-though he never meant it. We have to deal with the language, and what he calls "pecuniary legacies" are those he designated by that name: and not being quite sure whether the others that he gives in money would be pecuniary legacies in the same sense, he calls them "sums of money." Then we come to the residue, and we find that the only legacies he wishes to provide for are pecuniary legacies or "sums" and there are words to answer very precisely those descriptions. Then we come to the investment clauses. I think he shows there an intention to give the trustees special power to retain in their present state of investment, his debentures. Taking it altogether, I think it would be fantastic to suppose that when he had provided in this way, he meant not that the legatees were to have something out of what he had got, but that they were to have something purchased for them, or that that was his idea at all. The thing is totally different when you have a testator saying, for instance, "I give £1,000 Consols." That is such a common case of investment that you cannot derive any conclusion, one way or the other, as to whether he meant Consols which he might happen to have or Consols to be purchased. But when a man has several kinds of investments and he deals with them all, and with some of them in such a manner as to make it absolutely plain that he intended that they should be specific gifts; and with regard to all, there are expressions in the will more suited to the language used on the hypothesis that the gifts in question are specific gifts, I think we may fairly assume that they were specific gifts, and declare accordingly. Appeal allowed. The appeal of the Yacht Racing Association of Great Britain was then heard. Warrington, Q.C., and Kenyon Parker, for the appellants. This gift is a trust for a purpose beneficial to a community: Commissioners, &c., of Larome Tax v. Pemsel, [1891] A. C. 531 (see p. 583), 40 W. R. Dig. 217. They also referred to In re Lord Stratheden and Campbell, [1894] 3 Ch. 265; In re Stephens, Giles v. Stephens, 36 SOLICITORS' JOURNAL, 713, W. N. 1892, p. 140; Beaumont v. Oliveira, 17 W. R. 269, L. R. 4 Ch. App. 309. [RIGBY, L.J., referred to Thompson v. Shakespear, 8 W. R. 265, 1 De G. F. & J. 399.] Patullo, for the residuary legatees, was not called on. LINDLEY, L.J.-We are all quite aware of the extreme difficulty of drawing a line between gifts which are charitable, in the sense in which lawyers use that term, and gifts which are not, but this is really a new experiment. The testator here tells us exactly what he has in his mind. This is an institution of members for mere sport, it is a mere game, the testator treats it so, and he tells us so himself. At the end of the bequest he says, "My object in giving this cup is to encourage the sport of yacht racing." Taking the wide view, in my opinion, I should say that every healthy sport is good for the sation. I do not draw much distinction between cricket, football, fencing, yachting or anything else. If that were a lawyer's idea of a charity, this would not have been the first time we should have heard of COURT OF APPEAL. it, and I cannot find any case which tends that way, that is to say, any case which would authorize us in saying that a mere legacy to promote a game or a sport is a charitable legacy within the extended doctrine of the Court of Chancery. I quite agree that I find it very difficult to draw the line, and I do not attempt to draw the line. It is a case in which it is exceedingly difficult to do it. The cases in the books show that sometimes there is a case a little on one side and sometimes one a little on the other of the line: but I take the broad ground that I am not aware of any case which warrants the inference that a legacy for mere sport is a charity. I think that is enough to decide this case. LOPES, L.J.-It is indeed most difficult to draw a line in this matter, but probably the safest way to deal with this case will be to say what does not come within the definition of a charitable gift. I am clearly of opinion that a gift, the object of which is a mere sport or game, which is primarily calculated to promote the amusement of individuals as distinguished from the community at large, cannot, upon the authorities, be said to be a charitable gift. If we were to hold this a charitable gift, we should indeed open a very wide door, because there would be very great difficulty in saying that a gift for the purpose of promoting bicycling, cricket, football, lawn tennis, or any other game, would not come within the same category, because all those sports are calculated to promote the health, physique, and good constitution of the community at large. But they are not of that kind which can be said to be charitable gifts. RIGBY, L.J.-I am of the same opinion; I dare say it is impossible, and certainly it would not be advisable, to define in general words what is a charitable bequest. One must always go back to the analogy of the statute, and that is the only test which has ever really been applied. If this could succeedif the gift of a fund to found a prize for yacht racing could succeed-it must be on the ground that it is for a general public purpose. I know no other head under which it could come. I think the very terms of the will explain that itself. The Yacht Racing Association which is spoken of is an association of yacht owners; and the prizes are to be won by the owners of the yachts. I think, however much we might favour the support of yachting, we cannot go to the extent of saying that it is a general public purpose. There are a great many things which are highly laudable, and in many ways very useful, which are yet not charities within the meaning of the statute, and in my opinion this is one of those things. manager in his business, made a list of the names of the plaintiff's customers from his order-book without the plaintiff's knowledge or authority, with the intention of using it in a rival business after he left the plaintiff's employment, and he did in fact so use it. The plaintiff having claimed damages and an injunction to restrain the defendant from using the list, Held, that there was an implied term in the contract of service that the servant should act honestly and faithfully towards his master, and that the defendant had committed a breach of that contract, and that damages and an injunction ought to be granted. Lamb v. Evans, 41 W. R. 405, [1893] 1 Ch. 218, followed. Appeal from the judgment of Hawkins, J., in favour of the plaintiff, at the trial of the action without a jury, reported [1895] 2 Q. B. 1. customers were The plaintiff claimed an injunction and damages against the defendant, who had been in his service as manager, and who subsequently carried on a similar business, for having, during his service, improperly copied a list of the names of customers from the plaintiff's order book, and used it afterwards in his business for the purpose of soliciting their custom. The facts as found by the learned judge were as follows: The plaintiff, who occupied a game farm, was a dealer in live game and eggs, the chief part of his business consisting in procuring the eggs, and in the hatching, rearing, and sale of game birds. He also kept a large stock of laying pheasants, and sold pheasant's eggs, as well as live pheasants for shooting and for stock purposes. His numerous, and their names and addresses were collected in his order-book. In 1890 the plaintiff required a manager, and in July he had an interview with the defendant upon the subject, when he stated that he relied on the defendant to treat everything in connection with the farm in strict confidence. On the 6th of August the plaintiff, by letter, engaged the defendant as his manager, and in September the defendant entered the plaintiff's service. On the 22nd of November, 1893, the defendant gave the plaintiff notice to terminate the service at the end of the year, and that notice was duly accepted. In March, 1894, it came to the knowledge of the plaintiff that the defendant was carrying on a similar business at the Game Farm, Henley, and was sending out circulars, soliciting orders, to a great number of the plaintiff's customers, whose names and addresses the defendant had, while in the plaintiff's service, copied from the plaintiff's order-book clandestinely, without the plaintiff's knowledge or authority, and for the purpose of using it to solicit the customers to give their custom to him. The plaintiff thereupon issued the writ in this action. HAWKINS, J., gave judgment for the plaintiff for £150 damages, and granted an injunction restraining the defendant from making use of the information so obtained by him; and directed the list of the names and addresses of the plaintiff's customers copied from the plaintiff's order-book to be delivered up to be destroyed. The defendant appealed. J. W. McCarthy, for the defendant. R. M. Bray (Murphy, Q.C., with him), for the plaintiff. Lord ESHER, M.R.-In this case the defendant, while in the plaintiff's service, surreptitiously made a copy of the names of the plaintiff's customers from the plaintiff's order book, not for the advantage of his employer, but for the sole purpose of using the list so made, after he left the plaintiff's service, so as to get orders from those customers in a rival business. Was that or was that not what any person of ordinary COURT OF APPEAL. honesty would say was a dishonest act towards his employer? Was it not a dereliction of the duty to act in good faith which he owed to his employer? In my opinion the learned judge rightly found that it was a breach of that trust and confidence which his service imposed upon him. It is impossible to say that the defendant had a right to make a copy of the plaintiff's order book for the purpose of using it afterwards against his master's interests, and it is equally impossible to say that it was not a breach of trust. Was it also a breach of the contract of service? That contract was reduced into writing. But that does not prevent a stipulation, not inconsistent with the written contract, from being implied. It seems to me that a stipulation on the part of a servant in a confidential relation to act in good faith towards his master must be implied in every contract of service, because it must obviously have been the intention of both parties, acting honestly, when making the contract, that such a stipulation should be implied. In Lamb v. Evans, 41 W. R. 405, [1893] 1 Ch. 218, Bowen, L.J., said: "The common law, it is true, treats the matter from the point of view of an implied contract, and assumes that there is a promise to do that which is part of the bargain, or which can be fairly implied as part of the good faith which is necessary to make the bargain effectual. What is an implied contract or an implied promise in law? It is that promise which the law implies and authorizes us to infer in order to give the transaction that effect which the parties must have intended it to have and without which it would be futile." The transaction here is one of confidential trust, and if there is not to be implied the stipulation of a faithful performance of duty, the contract would be futile. Under these circumstances the learned judge was right in making the implication which he did, and in giving damages for the breach of contract. There was also, as I have said, a breach of confidence and trust, and, therefore, an injunction is a proper remedy, inasmuch as the defendant, if not stopped, will go on repeating what he has done. Whether the injunction is too wide in its terms I do not stop to enquire. That may arise if it becomes necessary to enforce it. In a KAY, L.J.-I am of the same opinion. The order appealed from awards the plaintiff £150 damages, orders the list of customers' names to be delivered up to be destroyed, and grants an injunction restraining the defendant from making use of the information obtained by him. First, as regards the injunction. The learned judge has found that the defendant, while in the plaintiff's employment, surreptitiously copied from his master's order-book a list of his master's customers with the object and intention of using the list after he left his master's employment in a rival business which he was going to set up. He held that that was a breach of his duty towards his master, and granted the relief I have stated. matter of this kind one likes to refer to the old authorities to see upon what ground the court grants relief by way of injunction. In Yovatt v. Winyard, 1 Jac. & W. 394, Lord Eldon granted an injunction to restrain the defendant, who had been an assistant of the plaintiff, from communicating certain recipes for medicines which the defendant, while in the plaintiff's service, had surreptitiously copied from the plaintiff's books, upon the ground that it was a breach of trust and confidence. In Morison v. Moat, 9 Hare, 241, Turner, V.C., stated the ground upon which the court exercised its jurisdiction. He said: "The plaintiff's case was rested in argument upon the ground that the defendant had obtained this secret by breach of faith or of contract on the part of the plaintiff. no C. A. ROBB v. GREEN.-RODDICK v. INDEMNITY MUTUAL MARINE INSURANCE CO. (LIMITED). or C. A. Held (affirming the decision of Kennedy, J.), that the disbursements were not covered by the words hull and machinery, and that there had been no breach of the warranty. Appeal of the defendant company from the judgment of Kennedy, J., at the trial without a jury. The plaintiff claimed under a policy of insurance, dated the 8th of January, 1894, declared to be upon the hull and machinery of the steamship Oxenholme, which were valued at £10,000, "£5,000 warranted uninsured except for running down clause" for six months from the 9th of January, 1894, to the 8th of July, 1894. The true question is, whether under the circumstances of this case the court ought to interfere by injunction upon the ground of breach of faith or of contract. That the court has exercised jurisdiction in cases of this nature, does not, I think, Quære, whether the later policy, being null and void admit of any question. Different grounds have at law, could, under any circumstances, constitute an indeed been assigned for the exercise of that jurisdic-infringement of the warranty in the earlier policy. tion. In some cases it has been referred to property, in others to contract, and in others again it has been treated as founded upon trust and confidence." And later on he cites Lord Cottenham in Prince Albert v. Strange, 1 Mac. & G. 25, as saying that "this case by means depends solely upon the question of property, for a breach of trust, confidence, contract would of itself entitle the plaintiff to an injunction." In the later case of Lamb v. Evans, Bowen, L.J., puts it at law, upon the ground of a term implied in the written contract, and not inconsistent with it, arising from the confidential relation of the parties. It is clear to me that an injunction can be granted. It is sufficient to say that when a servant surreptitiously compiles a list for his own use as here, he is guilty of a breach of confidence and trust, whether it is implied in the contract or not; and an injunction is the proper remedy. As regards the form of the injunction, whether the plaintiff will be able to make out that there has been a use of the information so obtained, in breach of the injunction, is still open if the plaintiff applies to enforce the injunction. Next, as to the delivery up of the list, it is clear that, as it was made in breach of trust and confidence, the order is right. Then, as regards the damages, if what the defendant has done is a breach of an implied contract, the damages were rightly given. Bowen, L.J., in Lamb v. Evans treats it as such, and I entirely agree with him. The appeal must, therefore, be dismissed. A. L. SMITH, L.J.-I am of the same opinion. In my opinion there is implied in a contract of service, a stipulation that the servant will act in good faith towards his master. That was the proposition laid down in Lamb v. Evans, and also in Louis v. Smellie, 11 Times L. R. 515. It is obvious that the defendant has acted here in the worst possible faith towards his master. Appeal dismissed. Solicitors for the plaintiff, Roopers & Whately Solicitors for the defendant, Church, Rendall, Todd, & Co. From Q. B. Div. June 28, 1895. (Lord Esher, M.R., and Kay Insurance, Marine-Time policy--Hull and machinery The plaintiff effected a time policy of insurance with (2.) Reported by F. O. ROBINSON, Esq., Barristerat-Law. The plaintiff effected policies, including this policy, expressly on hull and machinery to the extent of £5,000 and no more. So far, therefore, as regards policies expressed to be upon hull and machinery he complied with the warranty. But he did effect certain insurances upon "disbursements to the extent altogether of £2,600. These disbursement policies were p.p.i. or "honour "policies, that is to say policies wherein it was stipulated that the policy should be deemed sufficient proof of interest. They were therefore null and void in law under 19 Geo. 2, c. 37. The intention of the plaintiff in effecting these “honour" policies was to cover certain disbursements for coal, engine-room and deck stores, provisions and cabin stores, port expenses and premiums which he had made in respect of the ship in view of her proceeding from the United Kingdom to the coast of South America, and afterwards trading there. Two witnesses of experience in marine insurance were called on behalf of the plaintiff. Their evidence was to the effect that disbursements constituted, apart from hull and machinery, a common subject of insurance, and were recognized by underand machinery, that they covered all expenditure writers as a distinct and different subject from hull made or to be made in which the insured had an insurable interest, that an insurance on "hull" according to the well-known practice of underwriters would in a voyage policy include such equipment or outfit in the shape of bunker coal and ordinary deck and engine-room stores as would be necessary for the voyage described in the policy. The witnesses did not, however, state what would be covered by "hull" in a time policy such as the policy in this case. Kennedy, J., held that the "honour" policies though void in law would have constituted infringement of the warranty, but for the fact that the disbursements insured by the "honour "policies did not cover any part of the subject-matters insured by the policy on hull and machinery." The learned judge, therefore, gave judgment for the plaintiff. The defendant company appealed. Joseph Walton, Q.C., and J. A. Hamilton, for the appellants. The learned judge was wrong in holding that there had been no infringement of the warranty. In order to constitute such an infringement it is only necessary to show that a part of the disbursements, however small, is covered by the words "hull and much of the coal as was requisite as outfit or machinery." Those words do include, at least, so equipment for the voyage to South America. submitted hull and machinery also includes The word engine-room stores and provisions. It is 'ship "would cover such things: Brough v. Whitmore, 4 T. R. 206, Forbes v. Aspinall, 13 East. 323, and "hull and machinery" has acquired as wide a COURT OF APPEAL. KERSHAW (APPELLANT) v. TAYLOR (RESPONDENT). meaning as "ship" in connection with marine insurance. They also cited Oppenheim v. Fry, 11 W. R. 725, 12 ib. 831, 3 B. & S. 873, 5 ib. 348, and the Master of the Rolls referred to Robertson v. Ewer, 1 T. R. 127. Pickford, Q.C., and Horridge, for the plaintiff, were not called on. COURT OF APPEAL. Some evidence was given as to the meaning of the word "hull" in marine insurance, and though that evidence was given on behalf of the plaintiffs it is relied on by the defendant company as establishing a customary use of the word in the wide meaning contended for. That evidence, however, only comes to this, that in a voyage policy an insurance upon the hull would include such equipment and outfit as was Lord ESHER, M.R.-In this case the court has to determine a question on the law of marine insurance. necessary for the voyage described in the policy. The The business of marine insurance has given rise to witnesses only speak as to the meaning of the word different forms of insurance policies, and during a in a voyage policy, which this is not, and, for aught I know, there may be some very good reason for giving long course of years these policies have undergone the word a different meaning in a voyage policy from various alterations. At one time the word " ship" in that which it has in a time policy. If the defendant a policy had only a limited meaning, and it is still the custom of underwriters at Lloyd's, and probably given, and in my view it is no evidence at all as to company rely on that evidence they must take it as of many insurance companies when insuring a ship, the meaning of the word "hull" in a time policy. not to use the word "ship" and nothing else. Some companies, however, do insure a ship under the term A. L. SMITH, L.J.-I agree. The defendant com"ship" alone, and then it is for the court to deter-pany say that the plaintiff has broken his warranty mine what is the meaning of the term " ship" in a that the ship was uninsured to the extent of £5,000, policy of insurance against the perils of the sea. because the plaintiff effected policies for £2,600 on It is not necessary in this case to determine how wide disbursements, and these disbursements, it is said, a meaning the word has when so used, it is certain it covered certain things as to which the plaintiff was means more than the mere hull, but the question as insured by the policy on the hull and machinery. to how much more, whether it includes such things as The case is not one covered by any authority, and provisions and outfit, is not now before the court. there is no evidence that the words "hull and For in this case the insurance company have departed machinery are used in the policy in any other than from the form of policy which is in frequent though their ordinary meaning. I say no evidence, because not universal use, and have used the words hull and the evidence that was given relates to voyage policies machinery. These words taken in their ordinary and not to time policies. We have, therefore, to conmeaning are not applicable to such things as coals sider what is the ordinary meaning of the words" hull and stores. The question we have to determine is and machinery," and in my opinion no one with any whether it has been proved to our satisfaction that knowledge of the Queen's English could suggest that these words, when used in a time policy, have uni- hull and machinery means such things as coal, proviversally, as between the insurer and the assured, visions, or stores. An ingenious argument was made acquired a meaning different from their natural and use of. It was said that hull and machinery means ordinary meaning. I do not think that the defendant the same as ship, and that ship has been decided to company have succeeded in doing that, nor do I cover coals and stores and the like. As to that conthink that Kennedy, J., was wrong in holding that tention, I am not quite satisfied that the authorities these words were to have their ordinary meaning in relied on do go so far as to decide that coals and this policy. On the contrary I am convinced that the stores are covered by the word "ship," but it is not words "hull and machinery" do not include any of necessary to decide that point now, for in this case the things which were insured in the "honour" we are not dealing with the word "ship," but with the words policy under the term disbursements. hull and machinery," and I am of opinion that Kennedy, J.'s decision on that point was right. One word as to the effect of "honour" policies. I am inclined to think, though it is unnecessary now to decide the question, that as the plaintiff could not sue on these policies, they were not an infringement of the warranty that he was uninsured to the extent of £5,000. It is unnecessary, in the view which I take of this case, to deal with the other point decided by the learned judge in the court below-viz., whether a policy which is null and void at law could have any effect upon the warranty in the earlier policy. But it must not be taken that I accede to the view expressed by the learned judge. KAY, L.J.-I am of the same opinion. This is an action on a policy of marine insurance, and the question we have to decide is whether, on the true construction of a policy effected upon the hull and machinery of a steamship, the various things which have been insured by the plaintiff under the heading of "disbursements " are covered by the words "hull and machinery.' The argument used on behalf of the defendants is to this effect: the word "ship" by itself would, it is said, include these things, and it is the common practice when insuring steamships to use the words "hull and machinery instead of the word ship, and, therefore, we must construe the words hull and machinery to have the same meaning as ship. No authority has, however, been cited to us for that proposition, and in the absence of authority I am unable to hold that the meaning of the words "hull and machinery" is as wide as that of the word "ship." I, therefore, come to the conclusion that the various things insured by the "honour" policies under the head of "disbursements," are not covered by the policy upon the hull and machinery. COURT OF APPEAL. KERSHAW (APPELLANT) v. TAYLOR (RESPONDENT). 1855 (18 & 19 Vict. c. 120), s. 250-Public Health (London) Act, 1891 (54 & 55 Vict. c. 76), 2. By section 250 of the Metropolis Management Act, 1855, a drain which, without an order of the sanitary authority, drains more than one house is a sewer; and by the same Act the duty of repairing sewers lies upon the local authority. A sanitary authority approved a combined system of drainage submitted by a building owner in respect of certain semi-detached houses about to be built by him, by which each pair of houses was to drain by one drain into the sewer. In building the houses the building-owner departed from this scheme, and drained four houses into one drain. Subsequently the houses were sold without any notice to the purchasers as to the system of drainage. The purchaser of one of the houses was summoned for not complying with a notice under section 1 of the Public Health (London) Act, 1891, requiring him to abate a nuisance arising from defective drainage at his premises. Held, that the part of the drain which received the drainage of the other three houses was a sewer, and that the purchaser was not estopped by the default of the building owner from disputing his liability to repair that part of the drain. Special case stated by a metropolitan magistrate. The respondent was summoned under the Public Health (London) Act, 1891, by the appellant, a sanitary inspector of the Wandsworth District Board of Works, for that there existed at the respondent's premises known as "Avon," Tankerville-road, Streatham, by reason of the default of the respondent, a nuisance-namely, a foul and defective combined drain, and house drain connected therewith. sewer. The respondent's house was built in 1887 by one Gatfield, the respondent's predecessor in title. Previously to its being built Gatfield gave written notice to the district board of his intention to build six semi-detached houses in Tankerville-road, with a plan showing the proposed system of drainage, which was that each pair of houses should have a combined system of drainage, by means of one drain into the In August, 1887, the board approved the plan by resolution, subject to the drainage works being executed to the satisfaction of the surveyor. The building of the houses was forthwith proceeded with by Gatfield, and were completed. They included one semi-detached pair called "Clyde" and " Avon " and another pair called "Wye" and "Severn." At a subsequent date the houses were sold without notice to the purchasers as to the drainage, the respondent becoming the owner of "Avon." In October, 1894, a nuisance, was found to exist at "Avon " owing to defective drainage, and the appellant served the respondent with formal notice requiring him to abate the nuisance and for that purpose to execute certain works. The respondent caused the ground to be opened for the purpose of complying with the notice, and it was then discovered by him for the first time that his house "Avon " and the houses "Clyde," Wye" and "Severn" were all drained by the drain belonging to "Avon." The respondent thereupon refused to proceed with the work of repairing the drain beyond the point at which it received the drainage of the houses "Wye" and "Severn on the ground that from that point the drain was a wer, which was vested in and repairable by the Local authority. A further notice having been served on the respondent and not complied with, this summons was taken out. By the Metropolis Management Act, 1855, the duty of repairing sewers lies in the local authority, that of repairing drains in the house-owner, and by ction 250 of the same Act the word "drain" shall mean and include any drain used for the drainage of COURT OF APPEAL. "" sewer shall mean and one building only, and shall also include any drain for draining any group or block of houses by a com bined operation under the order of any vestry or district board, and the word “ include drains of every description, except drains as The magistrate dismissed the summons subject to this case, holding that the drain in question was a defined above. sewer. The question for the court was whether he was right in his decision. Channell, Q.C. (Earle with him), for the appellant. The drain having been improperly constructed by the respondent's predecessor in title, the respondent the drain had become a sewer. was estopped from alleging that by reason thereof Further, this combined drain was made without authority, and it did not vest in the district board. A sewer made without authority does not vest in the local authority. If a stranger connected his drain with another drain without the knowledge of the local authority, the latter drain would not thereby become a sewer. He referred to Bateman v. Poplar District Board of Works, 33 Ch. D. 360, 35 W. R. Dig. 131; Bateman v. Poplar District Board of Works (No. 2), 36 W. R. 501, 37 Ch. D. 272. R. M. Bray, for the respondent, cited Travis v. Uttley, 42 W. R. 461, [1894] 1 Q. B. 233, WRIGHT, J.-It is unfortunate that the Metropolis Management Acts are not more complete than they are, but I think that in this case the local authority are without a remedy. If it had been known at the time what Gatfield was doing, the local authority could have proceeded against him under section 73 of the Act of 1855. If they can find him now, and he has got any means, and the Statute of Limitations has not barred their right, they can make the drain as originally ordered and recover the expenses from him, as they could compel Gatfield to do it himself, under section 83, he not having made a drain such as the local authority ordered. The case of Bateman v. Poplar District Board is abundant authority for saying that where a board or vestry has sanctioned a thing to be done in a particular way that is the same as ordering it to be done in that way, and if proceedings are taken under section 73 or section 83, it would not be in a man's mouth to say that the drain had become a sewer, and that, therefore, he could not be ordered to make it into a drain. The application in this case is, however, not under these sections, but is under the section of the Public Health Act, 1891, which applies only where the thing is actually a drain and not actually a sewer. Here the thing is actually a sewer within the definition in section 250 of the Act of 1855. I cannot see the least ground in law for the contention which Mr. Channell put forward that there was something in the nature of an estoppel to prevent the present owner or occupier from setting up that this is a sewer. not contended that he was in any way privy to any representation made by his predecessor as to the construction of the sewer, even if there had been any such representation. I do not think there was. It is There was simply a failure, intentional or otherwise, by his predecessor in title to construct a drain in the way authorized. I see nothing in the nature of an estoppel, and I think that the magistrate was right in the conclusion at which he arrived. KENNEDY, J.-I agree. Appeal dismissed. The appellant appealed to the Court of Appeal. |