section enacts that, "no building shall, without the consent in writing of the Metropolitan Board of Works, be erected beyond the regular line of buildings in the street in which the same is situate, in case the distance of such line of buildings from the highway do not exceed thirty feet, or within thirty feet of the highway where the distance of the line of buildings therefrom amounts to or exceeds thirty feet, notwithstanding there being gardens or vacant spaces between the line of buildings and the highway; and, in case any building be erected contrary to this enactment, it shall be lawful for the vestry or district board in whose parish or district such building is situate, to cause the same to be demolished or set back (as the case may require), and to recover the expenses incurred by them from the owner of the premises, in manner provided by this act." This provision, which came into operation on the 1st of January, 1856, contemplates that which shall be done in future. The 8th section of the Metropolitan Buildings Act, 18 & 19 Vict. c. 122, enacts that "a building shall be deemed to be new whenever the enclosing walls thereof have not been carried higher than the footings previously to the 1st of January, 1856: any other building shall be deemed to be an old building.' The case shows that the building in question was an "old building;" for, it finds that the eastern and western walls close up to the footpath in Victoria Road had been carried up higher than the footings before the 1st of January, 1856. The plan shows the state of the buildings in the Victoria Road at the time the act came into operation. The court is called upon for the first time to say what is "the regular line of buildings in the street." Is this to be determined by reference to Nos. 1 and 2 Priory Terrace? or by Nos. 3, 4, 5, 6, and 7? *or by Nos. 8 and 9? or by Nos. 1 and 2, *254] Boundary Cottages? There is nothing, it is submitted, in the Local Management Act, or in the statements in the case, to interfere with the plaintiff's right to build close up to the footpath.

Then, as to the vestry proceedings, it does not appear from the facts found by the arbitrator that the twenty-five vestrymen who voted for the demolition of the plaintiff's premises formed the majority of those present on the 17th of April. The resolution proposed at the first vestry meeting, on the 17th of April, was conclusively negatived by the show of hands, and the statute and by-law do not authorize a subsequent division or poll; they give the vestry the option to proceed by the one mode or the other, but not by both. And, assuming the resolution then come to, to have been valid, it was not acted upon, and those passed at the subsequent meetings were mere nullities.

At all events, the plaintiff is entitled to recover upon the second count. The removal of the materials to the stone-yard was clearly unjustifiable. [WILLES, J.-The defendant certainly had no right to insist upon a lien on them for the expenses.]

The plaintiff is entitled to recover all the damages assessed, and the amendment of the second count was properly made.

Macauley, Q. C. (with whom was Raymond), contrà. [CROWDER, J., desired him to confine his argument to the first point, viz. whether the building in question was an "old building," and to the question raised on the second count.] The first point admits of two answers. In the first place, the arbitrator finds that the enclosing walls were not built before the 1st of January, 1856. The eastern and western walls were

not erected for the purpose of any building, but were mere *boundary walls to the piece of land. The agreement under which the [*255 plaintiff took the land from Clarkson was dated the 23d of February, 1856; and the plaintiff did not commence building his house until February. In the next place, though an "old building" for the purpose of the Metropolitan Buildings Act, it would not necessarily be so for the purpose of the Metropolitan Local Management Act. The two statutes are not in pari materiâ: they have totally different objects in view.

Then, as to the second count,-there is no statement therein of anything which amounts to a conversion. The asportation of the materials to a convenient place of deposit was perfectly justifiable. If the defendant was authorized to demolish the offending portion of the building, he was authorized to do all that was reasonably necessary to carry out that object. He could not leave the materials encumbering the highway: and he would have been guilty of a trespass if he had gone upon the plaintiff's premises to deposit them there. The arbitrator finds that the stone-yard was a convenient place to remove the materials to. [CROWDER, J.-Convenient for whom? He does not say that it was convenient for the use of the plaintiff.] He may fairly be assumed to have meant so: his finding has reference to the pleadings which were before him. Then it is said that the defendant detains the materials as a security and pledge for the costs and expenses of taking down the building. But the arbitrator has not found that the defendant claimed a lien upon the materials and, if the act of removal was lawful, the mere intention to insist upon a lien could not make it unlawful. If a man distrains cattle damage feasant, the quality of the act could not be in any degree altered or affected by his having told some third person that he means to detain the cattle until the owner pays him *10007. In Crowther v. [*256 Ramsbottom, 7 T. R. 654, it was held, that, in trespass for breaking and entering the plaintiff's close, and taking his goods, the defendant may justify under sufficient legal process, if he had it in fact at the time, although he declared then that he entered for another cause. And Lord Kenyon said: "I never understood that a man was bound to justify a distress for the cause which he happened to assign at the time it was made. If he can show that he had a legal justification for what he did, that is sufficient. A man may distrain for rent, and avow for heriot service." [CROWDER, J.-The taking the materials to the stoneyard was for the express purpose of claiming a lien. It is obvious he did that for his own purposes. I do not see how you can get over that.] If the defendant did no more than he had a legal right to do, what he said or intended does not affect the validity of his act: Stevenson v. Newnham, 13 C. B. 285 (E. C. L. R. vol. 76). [CROWDER, J.-That is the infirmity of your argument. The defendant had no right to remove. the materials from the hoarding to the stone-yard.] There was no demand here: and this is eminently one of those cases where a demand and refusal are necessary. The asportation is mere aggravation: Woods v. Durrant, 16 M. & W. 149.† A mere wrongful asportation of a chattel does not necessarily amount to a conversion, unless the taking or detention of the chattel is with intent to convert it to the taker's own use, or that of some third person, or unless the act done has the effect either of destroying or changing the quality of the chattel: Fouldes v. Willoughby, 8 M. & W. 540;† Simmons v. Lillystone, 22 Law J., Exch. 217. To

constitute a conversion of goods, there must be some repudiation by the defendant of the owner's right, or some exercise of dominion over them by him inconsistent with such right: Heald v. Carey, 11 C. B. 977 (E. C. L. R. vol. 73). Here, the defendant was not *asserting a

*257] right he was acting in the performance of a public duty.

CROWDER, J.-I am of opinion that there must be judgment for the defendant on the first count, and for the plaintiff in the count in trover. As to the questions arising upon the first count, they arise under the 18 & 19 Vict. c. 120, and mainly under the 143d section. This being an act to regulate the building of streets, that section enacts that "no building shall, without the consent in writing of the Metropolitan Board of Works, be erected beyond the regular line of buildings in the street in which the same is situate, in case the distance of such line of buildings from the highway do not exceed 30 feet, or within 30 feet of the highway where the distance of the line of buildings therefrom amounts to or exceeds 30 feet, notwithstanding there being gardens or vacant spaces between the line of buildings and the highway: and, in case any building be erected contrary to this enactment, it shall be lawful for the vestry or district board in whose parish or district such building is situate, to cause the same to be demolished, or set back, as the case may require, and to recover the expenses incurred by them from the owner of the premises in manner provided by this act."(a) It appears from the case that there is a road called Victoria Road, with certain buildings on the north side, to the extreme west Priory Terrace, consisting of nine houses, then Nos. 1 and 2, Boundary Cottages, and then another terrace consisting of twelve houses, called Portland Terrace; and to the extreme east three houses and other two in course of erection. To the west of *258] Priory Terrace, there are also certain *houses numbered respectively 1, 2, 3, and 4, abutting on Marlborough Road. The end house, No. 4, marked A. on the plan, is divided from Victoria Road by a wall. It seems that a portion of the premises marked A. is skirted by that wall and a zinc flat. The premises erected by the plaintiff, marked B. upon the plan, are at the west end of Priory Terrace, and immediately behind the premises in Marlborough Road marked A. In erecting those premises, the plaintiff placed his house very near to the line of the footpath, and a considerable distance in advance of the line of any of the other houses. The defendant, in exercise of the authority conferred upon him as surveyor to the vestry under the 143d section of the act, has removed so much of the house as projected beyond the regular line of buildings in Victoria Road. The plaintiff insists that he had no right to do so. In the first place, it is contended that the building was not within the act at all; for that the 143d section applies to new buildings, and the 8th section of the Metropolitan Buildings Act, 18 & 19 Vict. c. 122, shows that this is not a new building. That section enacts that " a building shall be deemed to be new whenever the enclosing walls thereof have not been carried higher than the footings previously to the 1st of January, 1856: any other building shall be deemed to be an old building." The case finds that before the 1st of January, 1856, there were two walls, one at the east and the other at the west side of the plaintiff's land, which commenced at or near the

(a) To be ascertained and determined by and recovered before two justices, s. 225.

footpath, and which had before that date been carried higher than the footings, and which subsequently became part of the house. In constructing the house, in the month of February, the then existing east and west walls before described were first reduced in height, but not taken down to the footings, and afterwards carried up to the full height of twentytwo feet. The north wall, both footings and superstructure, was then built for the first time. The south wall has never had foot- [*259 ings, as the house was intended for a baker's shop. The arbitrator therefore finds as a fact that the "enclosing walls" of the building so erected by the plaintiff had not been carried above the footings on or previously to the 1st of January, 1856. Now, the first answer given on the part of the defendant, is, that there is no connection between the two acts,— that there is nothing to show that the term "new building" in the 8th section of the 18 & 19 Vict. c. 122, is a definition of that referred to in the 143d section of the 18 & 19 Vict. c. 120. But, looking at the facts, it seems to me that the objection admits of this answer. At the time the act came into operation, the two walls called the east and west walls were not connected with any building: but they became so afterwards. Therefore, even if the 8th section of the Metropolitan Buildings Act did apply, the facts negative this being an old building; and, if improperly erected as regards the line of buildings in Victoria Road, it is within the 143d section of the 18 & 19 Vict. c. 120. Then it was said that the plaintiff was at liberty to build his house up to the footpath. It seems to me, however, that so to construe the act would be to make it utterly useless. The case finds that the houses in Priory Terrace, Boundary Cottages, and Portland Terrace, are built in symmetrical blocks close up to, or at a distance of nine inches from, an imaginary line drawn from No. 1, Priory Terrace, to No. 12, Portland Terrace. From this it is argued, on the part of the plaintiff, that there is no "regular line of buildings" in this road. The arbitrator, however, finds that there is a regular line of buildings,-which need not be a mathematical line, and that the house in question was built beyond that line. The object of this part of the act evidently was the maintaining an [*260 appearance that should be ornamental. It seems to me that the case falls within the 143d section, and that the vestry were right in taking steps to demolish the offending structure. Then certain questions are raised as the proceedings at the vestry meetings. It is said that the resolution proposed at the meeting of the 17th of April was conclusively negatived, by reference to the 28th section of the act, and the by-law made under the authority of the 202d section. By one of those by-laws made for regulating the proceedings of vestries, it is provided that all questions shall be determined by a show of hands, or by a division, if demanded, with the names recorded." At the meeting of the 17th of April, a resolution was proposed to the effect that Tear be directed to set back the premises illegally built beyond the regular line of buildings, within seven days; and, in case of non-compliance, that the surveyor be directed to cause the same to be demolished. A show of hands took place, when there appeared fourteen for the motion and fourteen against it. A division was then demanded, when there appeared to be a majority of seven in favour of the resolution. It was insisted that upon the show of hands there was an end of the resolution; for, that the true meaning of the by-law is, to give the parties the option to

vote by show of hands or by division, and that, having taken the one course, they could not afterwards resort to the other. That would be contrary to all one's experience. Elections of members of parliament are invariably made by show of hands, followed by a poll. Nothing can be more clear. The proceedings were perfectly good, and the resolution valid within the act. Then it is said, that, assuming the resolution at that meeting to have been a valid one, it was not the resolution that was acted upon. It appears that there was another vestry meeting held on the 8th of May, when, it being moved *that the resolution of *261] the 17th of April be carried into execution, an amendment was proposed that the plaintiff should have fourteen days' notice to set back his premises; and the amendment was carried. This made an end of the former resolution: and the plaintiff had the benefit of the additional fourteen days' delay. The plaintiff having failed to obey this last injunction, it became necessary to convene another meeting of the vestry. Accordingly, on the 19th of June, another meeting was held, when it was proposed that "the chief surveyor be ordered to demolish the building erected by Mr. Tear beyond the regular line of buildings near Priory Terrace, Victoria Road, in accordance with the act 18 & 19 Vict. c. 120;" and this was carried by a majority of eighteen. That was a perfectly separate motion. The result was communicated to the plaintiff, and, on the 24th of June, the building was demolished. I think the defendant was perfectly justified, and consequently that he is entitled to judgment upon the first count. Then comes the count in trover. I cannot help regretting that our decision should turn upon so small a matter. I cannot construe the finding of the arbitrator otherwise than as I have already suggested in the course of the argument. The building having been taken down, it appears that the materials were at first placed within a hoarding in the carriageway, and that they were afterwards conveyed to a stone-yard belonging to the parish, which the arbitrator found to be a convenient place to remove them to. The arbitrator, however, further finds "that the defendant removed the said building materials to the said stone-yard, and detained and still detains them there as a security and pledge for the costs and expenses of so taking down or setting back the said building as aforesaid, in the bonâ fide belief that he was and is entitled so to do under the said alleged resolution of *the vestry of the 19th of June, 1856, and *262] under no other resolution or order of the said vestry; and that the plaintiff could not have obtained the said materials back without paying the said costs and expenses." I think it is impossible to avoid coming to the conclusion that the defendant has been guilty of a conversion. It is said that the fact of the defendant having intended to claim a lien on the materials for his costs and expenses was immaterial so long as that intention was not communicated to anybody. We must, however, give a fair and reasonable construction to the finding of the arbitrator. Reliance is also placed upon the finding of the arbitrator that the stone-yard was a convenient place for the deposit of the materials. But it is rather vague to say that any place is convenient to stow away property of this sort, that places it out of the control of the owner. There is nothing to show that the materials were carried to the stoneyard for the benefit of the plaintiff: on the contrary, it is abundantly clear that the defendant had an eye to his own benefit only. There