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other things, contended on behalf of Mclntyre that the case did not come within the
57th George III., chapter 29, and the learned magistrate declined to adjudicate on the
ground that he had no jurisdiction; whereupon a rule nisi was obtained to compel him
to do so. In shewing cause against it, the Building Act, 7th and 8th Victoria
Chapter 84, Section 80, Schedule E, was referred to, containing a provision respecting
projections substantially like that contained in the 2nd Sub-section of Section 26 of
the Building Act of 1855, and it was urged that the Act of 57th George III. was
superseded by the Building Act, and that the matter ought to be determined by official
refex-ees appointed under that Act.
In the .judgment, it is true that nothing is to be found which can be said to be a
direct authority upon the point in question. The decision was merely that the
57th George III. was not superseded, and that the learned magistrate ought to hear
and determine the information, but throughout the case no real doubt seems to have
been entertained that if there was an encroachment on the public footway it was
illegal, the only seriously discussed question being as to the tribunal before whom
the matter should be brought. In giving his judgment, however, Lord Campbell said
"If the intention had been to repeai existing powers for preventing encroachments
on the streets by buildings, either by projections or otherwise, so important a repeal
ought to have been expressed"; and, with reference to the suggested tribunal of
Official Referees, he said it was "ill adapted for trying whether an alleged right of
way exists or has been encroached on," as if those were the only questions to be determined.
Here both those facts are found by the case. Lord Auckland v. "The Westminster
Local Board, 7 Chancery Appeals, page 597, has no bearing whatever upon the
present case. The question there raised was whether valid reasons existed to Lord Auck«
land building upon his own land—not whether he had a right to build on a public footway—a
right he never claimed. Goldstraio v. Duckworth, 5 Queen's Bench
Division, page 275, turned entirely upon the provisions of a local Act of Parliament
for the regulation of buildings in Liverpool, and the only point decided
was that a section in the Act enacting that "no projection of any kind shall be
made in front of any building over or upon the pavement of any street" did
not apply to an oriel window which, though it projected over the pavement, did not
cause any obstruction to the free use of the footway. In giving the judgment of the
Court, Lush, Justice, said, "If it had been intended to prevent projections at any
height over the footway, one would have expected to find an exception in favour of
these little harmless projections as well as of shop fronts and door ways." So here
if it had been intended to give power to encroach on an important public right by
building on a public footway one would have expected to find such power clearly
expressed in words as was the case in an exception in the Local Act in question, to
which Lush, Justice, referred. The last case to which I think it right to refer is
that of The Corporation of Yarmouth v. Simmonds, 5 Chancery Division, page 518,
before Pry, Justice, which, to use the words of that learned judge only decided that
" when the Legislature clearly and distinctly authorise the doing ef a thing which is
physically inconsistent with the continuance of an existing right, the right is gone