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On the subordinate points we are all of opinion that neither the Justices out
of Sessions nor Quarter Sessions have to decide whether there was a nuisance
or not, but they may have to consider whether there is reasonable ground for
suspecting there is a nuisance, and there is an obvious difference between this
case and cases of complaint of want of sanitary appliances or insufficiency of
drains, as to which inspection may in many cases be the only way to decide if
they are fit or not; but when allegations are based on questions of fact we
think it would be going too far to say that the Justices ought not to be allowed
to receive evidence as to what was the true state of facts before them on
which they purport to act. We think, therefore, that they were entitled to
hear evidence to show that the allegation on which a ground for inspection
was based was without foundation. We think, further, that the Order ought
to be made in reference to the particular subject-matter, and should not give
an officer a right to inspect everything.
Darling, J., concurred.
Channell, J., also concurred, and, as to the question under Section 102, added
that the Order is to be made on notice to the party, and therefore it is obvious
that the Magistrate must have something else to consider than the mere fact
that the officer desires to go. I think the Magistrate is entitled and bound to
to see the object for which the officer wants to go, and see if it is a matter
that can come within the first part of the Section. Suppose, for instance, that
Miss Hastings had said, "It is an entire mistake; I do not keep any school at
all. I have no schclars coming to me, and no one in the house at all." It is
perfectly clear she would be entitled to give that evidence, and to say: "This
is not a school. There are not 400, or 200, or 32, or any other number of
scholars. There are in all two or three children of my own or inmates of the
house." The object for which the person wants to go is certainly a matter to
be inquired into by the Magistrate, and it seems to me that the other party is
entitled to offer evidence, not for the purpose of showing that there is no
nuisance in fact, but for the purpose of showing there is no object in examining
the premises.
Note.—It must be added that this ruling does not apply to infectious
diseases nor to unsound food, in which cases the Orders of Magistrates are made
upon ex parte applications provided that they are accompanied by proper certificates.
See Queen v. Davey, M.O.H., Annual Report for 1899, p. 30, and
other cases.
Humphrey v. Young.
Semi-detatched houses, two buildings in separate curtilages and combined
drain, a Sewer.
This was a case stated by Magistrates for the opinion of the Court upon a
question of law arising upon the hearing of a summons against the respondent
for refusing to obey a notice served by the appellant, an Inspector of Nuisances
for the Borough of Reigate, requiring the respondent to make certain alterations
to the drains of Nos. 36 and 38, Somers Road, in that Borough, of which houses
the respondent was the owner. The premises in question were a pair of semidetached
houses, built, apparently, at the same time, having one continuous
roof and divided by a party wall which did not go up through the roof. The