Regular Appeal from a decision of the Subordinate judge of Mymensingh.
The appeal came on for hearing before Justice Mitter and Mr. Justice Maclean referred the case to a Full Bench in the following terms:—
The plaintiff alleges that he is the owner of a shikmi taluq, consisting of Mouzahs Nalitabari, & c.; that within Mouzah Nalitabari there was a haut from the year 1190, which used to be held on Tuesdays and Fridays; that a new haut called Tarajung was established by the defendant in a neighbouring place, within the zamindari of the latter, who attempted, by illegal means, to prevent people from making their market in his haut; that disputes having arisen in consequence of defendant's illegal acts, the Deputy Magistrate of Jamalpur, by an illegal and unjust order, dated the 31st May, 1875, has prohibited the plaintiff, under section 518, of Act X of 1872, to hold the Nalitabari haut on the days it used to be assembled; that in consequence of this order the plaintiff's haut has been closed, and he thereby sustained a heavy loss; that of the two hauts, the plaintiff's haut is far more ancient, and had been held from the year 1190, on Tuesdays and Fridays, till closed by the aforesaid Magistrate's order; that “in accordance with justice and equity,” he is entitled to assemble the haut on his own land in Nalitabari on the aforesaid days; that this suit has been brought to set aside the unjust order of the Magistrate, and to declare the plaintiff's right to hold his haut on Tuesdays and Fridays. The defendant, in her written statement, states (1) that a civil suit, to set aside a Magistrate's order passed with jurisdiction, will not lie; (2) that the plaint discloses no cause of action against her, and that upon the plaint, the plaintiff is not entitled to a decree; (3) that the plaintiffs haut not having been assembled within the last twelve years, the suit is barred by limitation; and (4) that there was no haut at Nalitabari, but that the plaintiff, having established a new haut, attempted to make it flourish by various acts of oppression on hautawaris, whereupon the Magistrate, after a judicial finding that the plaintiff's servants were to blame for these acts, has passed the order complained of.
The lower Court has dismissed the suit, and the plaintiff has preferred this appeal. It has been urged before us, in appeal on behalf of the defendant, respondent, that the plaintiff cannot succeed, even if all the facts stated in his plaint be established; that no cause of action against the defendant has been disclosed in the plaint; and that the Civil Court has no power to set aside an order passed by a Magistrate with jurisdiction under section 518 of Act X of 1872.
Another case is also before us in which the same points are involved, and as the questions raised are not free from difficulties and doubts, and civil cases of this nature are likely to be more frequent in consequence of very large powers being vested in Magistrates under section 518 of Act X of 1872, we think it desirable that there should be an authoritative decision by a Full Bench upon these points. The questions referred are—
First. Whether the plaintiff is entitled to a decree, and (if entitled) to what decree upon the facts stated in the plaint?
Second. Is there any cause of action disclosed against the defendant?
Third. Upon the facts stated in the plaint, could the plaintiff claim any damages or seek any other consequential relief against the defendant?
Fourth. Whether the Civil Courts can set aside an order passed with jurisdiction by a Magistrate, under the section 518 of Act X of 1872?
Fifth. Whether the Magistrate was competent to pass the order complained of in this case under the provisions of section 518 of Act X of 1872?
We are aware that there are two Full Bench decisions more or less bearing upon the last question. But one of these was passed with reference to the construction of section 62 of the old Procedure Code; and in our opinion the explanation of section 518 of Act X of 1872, has made a material alteration in the provisions of section 62 of the Old Procedure Code. In the other case, the question raised was whether the Court, under the provisions of section 15 of 24 and 25 Victoria, Chapter 104, has power to interfere with an order passed by a Magistrate under section 518 of Act X of 1872.
Woodroffe, (Baboo Kali Mohun Dass, Baboo Bhuban Mohun Doss, and Baboo Jogesh Chunder Roy, with him) for the Appellant.
Evans, (Baboo Sreenath Doss and Baboo Kishen Doyal Roy, with him) for the Respondent.
Woodroffe, for the Appellant.
The cases now dealt with, under section 518 of Act X of 1872, were formerly dealt with under section 62 of Act XXV of 1861. These two sections are the same up to the word “affray” in the section in the later Act.
Section 521 (referred to in 518) of the Act of 1872, substantially treats the same class of cases as section 308 of the old Code. We find section 518 in the new Code, and section 308 of the old, both under the head entitled “of Local Nuisances.”
Now it seems plain upon the wording of section 518 of the present Code, and having regard to the Chapter in which it is inserted, and to the explanations appended thereto, that a Magistrate is not empowered to pass an order under section 518, save in cases where a speedy remedy is desirable, and where the delay occasioned by a resort to section 521 and following sections would occasion greater evil, or would defeat the intention of the Chapter.
It is not stated in the Magistrate's order, which we are now considering, that there were any circumstance requiring urgency.
In the case of Banee Madhub Ghose v. Wooma Nath Roy Chowdhry, 21 W.R Cr., 26, it was held that the operation of section 518 is confined to cases, where, in the opinion of the Magistrate, the delay which would be caused by adopting a different procedure from that specified in the explanation to the section would occasion a greater evil than that suffered by the person on whom the order was made, or would defeat the intention of the Chapter, and there, an order of a Magistrate, under section 518, was set aside as being ultra vires, being based upon a police report, which was vague and insufficient, to show proper ground for an order under that section.
[Garth, C.J:— This appears to have been a case under section 15 of the Charter Act, and the order was set aside on the ground that it was made without jurisdiction.]
Again, the order of a Magistrate passed under section 518 was set aside by Kemp and Glover, JJ., in the case of In re Bindabun Dutt, as being illegal. Their lordships say: “This is clearly a case for an order under section 521, and we therefore quash the order. It does not appear whether that order came up under section 15 of the Charter Act.
[Garth, C.J:— The order must have come up under the Charter Act, for there could be no reference or appeal from an order under section 518, an order under that section not being a judicial proceeding.]
I raised that objection in the case of In re Bykuntram Shaha Roy, 10 B.L.R, 434, that, the order there under section 518 not being a judicial proceeding, there could neither be a reference nor an appeal to the High Court.
In the case of Sreenath Dutt v. Unnoda Churn Dutt, 23 W.R, Cr., 24 it was held that the circumstances of the case did not warrant an order under section 518.
An application was made before Markby and Mitter, JJ., in In re Kriskna Mohun Bysack, 1 C.L.R, 58, to set aside the order of a Magistrate passed under section 518. That was a case where it did not appear that any delay which would be occasioned by a resort to less summary proceedings would occasion any serious evil whatever. Their lordships quashed the order as illegal, being of opinion that the order was not one falling within the provisions of section 518, and therefore subject to section 520, but came within the definition of a judicial proceeding as given in section 4, and was therefore subject to the same revision as any other judicial proceeding of a Magistrate. See also Chunder Coomar Roy, petitioner, 27 W.R, Cr., 78, quoted in last case.
[Garth, C.J:— We are all agreed that the circumstances of emergency must be such as to justify the Magistrate in making an order under section 518, and that if they are not, the order may be set aside as made without jurisdiction. The questions you have to consider are first, whether the circumstances are such as to give the Magistrate jurisdiction; secondly, if they were, had be power to make an order tying up the rights of all parties for all time.]
I submit, on the authority of the cases cited, that having regard to the terms of section 518 and the terms of the order passed, the Magistrate was not competent to pass the order complained of under section 518. But I go further and say that, even if these circumstances had existed which would have justified the Magistrate in passing the order under section 518, and even if circumstances had been set forth in the order, the Legislature did not contemplate the passing of an order which in fact amounted to a perpetual injunction preventing a man exercising his civil rights. I am not aware of any authority in support of the contrary proposition.
I now come to the question as to the Magistrate's power to pass this order. The use of the word “prevent” in section 518 points to the time when the action of the Magistrate is to be involved So far as the case of Bykuntram Shaha Roy, 10 B.L.R 434 goes, there is nothing against my argument. The question in that case really amounted to this:—Can a Magistrate, in a case, which comes within section 62 of the old Code, for public reasons, prohibit a man from holding a haut at a particular place and time, and the answer was that circumstance may exist which would make a temporary interference lawful. The Judges there do not support the proposition that a perpetual order of this kind could have been made.
The case of Shib Chunder Bhuttacharjee v. Saadut Ali Khan, 4 W.R, Cr., 12, shows that a Magistrate has no power to interfere with private rights, and that a landlord may set up a haut if he pleases, although in Reg. v. Kali Prasad, 5 B.L.R, Appendix 82, where there were two rival hauts on adjacent pieces of land, the parties were prohibited from holding them on the same day.
It is laid down in Huri Mohan Malo's case, 1 B.L.R, A. Cr., 20, that under sections 62 and 308, the Magistrate must make a clear statement in the order itself of the circumstances under which he makes the order.
In the Full Bench case, Reg. v. Abbas Ali Chowdhry, 6 B.L.R, 74, which succeeded these cases, the question was, whether an order made under section 62 was a judicial proceeding or not, and as such liable to revision. Phear, J., who dissented from the judgment of the Full Bench, considered that the power conferred by section 62 was of a judicial character, within the meaning of the word “judicial” in section 404, and that an order of a Magistrate in exercise of that power was in the nature of an injunction, and therefore subject to revision by the High Court, under section 404 of the Criminal Procedure Code.
There is a class of cases which show that Magistrates have no power to make orders which are in their nature in deprivation of the right of private property. In Reg. v. Ram Chunder Mookerjee, 5 B.L.R, A. Cr., 131, where a Magistrate, being of opinion that certain bamboos were too thick and close to another man's property, under section 62 of Act XXV of 1861, ordered them to be cut down as being a nuisance and injurious to health, it was held that the Magistrate had no power to make the order. See Reg. v. Sheikh Golam Darbesh, 1 B.L.R, Short Notes, 27. The case of Arzanoolah v. Nazir Mullick, 21 W.R, Cr., 22 where a Magistrate made an order prohibiting the re-opening of a haut, is very similar to the case in point. In Tarucknath Mookerjee v. Collector of Hooghly, 13 W.R, Civ. R., 13, where an action was brought against the Collector in consequence of an order as to the cutting of a bund, it was laid down that the Government had no right summarily to destroy private property merely because it considered that doing so would be for the public convenience.
So in the case of Puneah Singh v. Jogeesur Sahaye, 8 W.R, 112, where a Magistrate, professing to act under section 62 of Act XXV of 1861, made an order that a bund should be cut, a suit was brought by the plaintiff, against whom the order was made, for a declaration of his right to have the bund closed, and for damages against the persons who had set the law in motion; the High Court ordered that the bund should be closed, though the claim as to damages was dismissed.
That an order can be set aside in this way is stated also in the notes upon section 518 of Act X of 1872 by Mr. Prinsep, who quotes the case of Sidgopal, 5 Agra, 108.
In Thakoor Sing v. Sheo Pershad Ojhar, 5 All. R., 8, the order directed the parties to abstain from holding a market on particular days, with leave to any person aggrieved thereby to bring a civil suit.
[Mr. Woodroffe was here stopped by the Court.]
Evans, for the Respondents:
I shall first contend that the Magistrate had a right to make this order, and that under the circumstances the question is not now triable here, but that if it is, it cannot be tried between the plaintiff and any other individual, but between the plaintiff and the Crown.
Since the decision of Jugnarain Dutt v. Hurri Churn Deb, S.D.A, 1853, p. 275, it has been held law in this country that all zemindars, as between themselves, have a right to hold hauts.
[Garth, C.J:— In your written statement you state that the plaintiff has no right to hold a haut by reason of the order of the Magistrate. You can't say as against you he has a right to have or set aside.]
I contend that the plaintiff has no right in any civil proceeding whatever to have this order set aside. Under any circumstance this is not the tribunal to set aside the Magistrate's order. If there was jurisdiction to pass the order, it cannot be set aside.
[White, J.:— But suppose the Magistrate had no jurisdiction to make the order, isn't it a nullity?]
It is.
[White, J.:— Then if it is a nullity, may not the plaintiff sue to establish his rights?]
It has been decided that a man cannot acquire a prescriptive right to the custom of market. I put this forward to show that there is no right of property interfered with at all, for Mr. Woodroffe has been arguing upon the alleged deprivation of right of private property. The order complained of is an order altering the day of the haut. Regulation XXVII of 1793, which provides the tolls, & c., derivable from hauts, declares the position of hunts in this country. There is no common law right to hold a market in India any more than there is in England. The right to take tolls was taken away from all subjects by the Government, but at the same time this Regulation provides that zemindars shall still have the right to charge rent for shops, & c., in the hauts upon their lands.
It is for the preservation of peace and quiet that no right of market is allowed in England, except under grants from the Crown.
Now all that the Magistrate has done here is to say that the plaintiff must not assemble people on certain days in the week; he does not prohibit the holding of his haut; no right of property is interfered with.
It must follow, as in England, that the right to assemble people together ought to be subject to the ruling power. We find from the cases that, as a matter of fact, hauts in this country have been constantly regulated by the Magistrate. It is not necessary for me to go so far as to say that these hauts are illegal. I only say there is no common law right to hold a haut, and that the ruling power has, and ought to have, a right to interfere for the preservation of the peace, by prohibiting, if necessary, the assembling of the people. Assembling a haut is not a right or incident of property, and never was.
[Garth, C.J:— If holding a haut is not illegal, has not the plaintiff a right to hold his haut?]
Yes, if there is no order of the Magistrate prohibiting it. The power given under section 518 is general, and under it the Magistrate may interfere to stop all disturbances, whether in respect of a haut or not.
I now come to consider the order itself. The first question is whether the Magistrate had jurisdiction.
That he had jurisdiction to prevent the holding of the haut for a limited period at all events is clear from the case of Bykantram Shaha Roy, 10 B.L.R, 434, S.C, 18 W.R, 47.
Is the Magistrate, who fears an affray will take place on Tuesday, to limit the order to that day when he apprehends perhaps that an affray is equally likely to take place on the Friday following?
It would appear that so long as the Magistrate exercises his discretion in preventing future disturbance, the power to act, as he has done, is a salutary if not a legal power. A Civil Court cannot prohibit a rival haut, however close—Jugnarain Dutt v. Hurri Churn Deb, S.D.A, 1857, p. 275, and as it was necessary for some one to take the matter in hand, the only person who could do so was the Magistrate.
Section 521 refers only to a small class of cases comprised by section 518, and makes no reference to a riot or affray, so the Magistrate could not have acted in this particular case under that section.
Where a Magistrate having jurisdiction has passed an order, after satisfying himself of the necessity for the order, the Civil Courts have no power to question his discretion—Kedar Nath v. Bugho Nath, 6 N.W.P, 104. In such a case the proper course for a party aggrieved to adopt would be to ask the Magistrate to reconsider his order. If he refused to reconsider the order the only remedy would be by suit against the Magistrate.
[Garth, J.:— We have already held that proceedings cannot be taken against a Magistrate who has acted bona fide under a particular provision of the law.]
That is in the case of a judicial proceeding, but the order under consideration is not a judicial proceeding. Reg. v. Abbas Ali Chowdhry, 6 B.L.R, F.B, 74.
[Garth, C.J:— The question there was whether the order was so far judicial as to be subject to revision, and therefore coming within the Statute Act XVIII of 1850, which protects Magistrates in the performance of their duty.]
That question was fully discussed in the case of Chunder Narain Singh v. Brijo Bullub Gooyee, 14 B.L.R, 254, where it was held that the removal of an obstruction by a Magistrate in the exercise of powers conferred upon him by Act VI (B.C) of 1868, was not a judicial proceeding, and that therefore the Magistrate making the order was not protected by Act XVIII of 1850 from suit at the instance of the person against whom the order was directed.
In Ujalamayi Dasi v. Chandra Kumar Neogi, 4 B.L.R, F.B, 24, it was laid down that a suit would not lie in a Civil Court to set aside an order, as to a nuisance, duly made under section 308 of Act XXV of 1861, or to restrain the Magistrate from carrying his order into effect.
So it was held in the case of In re Chunder Nath Sen, I.L.R, 2 Cal., 293, that the High Court could not interfere, under section 15 of the Charter, with orders duly passed by Magistrates under section 518.
There is some difficulty as to the jurisdiction, but on the authority of the case of Bykantram Shaha Roy already cited, the Magistrate would have power to stop the market by an order under section 518.
[Garth, J.:— But would the Magistrate be justified in making an order to extend indefinitely into the future?]
The order ought not to be bad because issued without restriction as to time; a temporary order has been held to be good. In Reg. v. Kaliprasad, 5 B.L.R, Ap., 82, note, a Magistrate was held to have power under section 62 of the old Code to make an order of this kind.
[Jackson, J.:— In that case we raised the question whether the Magistrate had power to restrain a person from exercising his undoubted rights.
[Garth, J.:— Is there any authority to show that this order is good so far, though not good to the extent of directing that the haut shall never again be held.] There is the case reported in Kedar Nath v. Rugho Nath, 6 N.W.P, 104.
[Garth, J.:— The present order appears to be indivisible, it is simply an order restraining the plaintiff holding his haut again.]
I admit that there is no limit of time expressed in the order: but in such a case as this, it would be difficult to fix a time for the duration of the order. No doubt if the order is to be looked at strictly according to the rules of English Law, the order may be said to be bad.
[Ainslie, J.:— For the Magistrate to have passed an order in the nature of a perpetual prohibition under section 518 he must have been able to certify the existence of an emergency for ever.]
[Jackson, J.:— Suppose the order had been directing the plaintiff not to hold his haut any Tuesdays or Fridays, except next Tuesday and Friday, could that order have been good?]
In that case there would have been no emergency, and the order would have been bad in the face of it. Here the Magistrate makes the order general as to Tuesdays and Fridays, and this may be taken with the explanation to the section to be intended to remain in force only until further order. The proper course would be to ask the Magistrate to specify for what time the order should ensure.
The next question to be considered is, whether the plaint discloses a cause of action. I am not prepared to admit that the plaintiff is entitled to a declaration of his right to hold his haut. Had the plaint been framed on the allegation that I had caused him loss by preventing people from attending his haut, there would have been a good cause of action disclosed, but it is not so framed; the damage or loss is stated to have arisen from the Magistrate's order, and that damage is too remote.
[White, J.:— Looking at the plaint it seems clear that the plaintiff is entitled to a declaratory decree (and to an injunction if he had asked for it); the only question seems to be as to his right to have the Magistrate's order set aside].
Not having made the Magistrate a party to the suit he cannot succeed upon that point. I contend that the order cannot be set aside under section 15 of the Charter, or under the Criminal Procedure Code.
Mr. Woodroffe was not called upon to reply.
The following judgment of the Full Bench (1) was delivered by Garth, C.J:—
In answering the questions which have been referred to us by the Division Bench, it will be convenient, in the first place, to dispose of the last and most important of them, viz., whether the Magistrate was competent to pass the order complained of under the provisions of section 518 of Act X of 1872.
The order was in these terms:
“To Gopi Mohun Moulik, inhabitant of Paikpara, Purgunna Shurpur.
“Case—Unlawful Assembly.
“It has appeared at the trial of the said suit, that a haut having been established since 20 or 25 years at Tarajung, the estate of the said Chowdhrani, is duly held every week on Tuesday and Friday. At present, you having set up a new haut at Nalitabari, which is quite close to the said haut, have fixed Tuesdays and Fridays, in other words the days on which the Tarajung haut is held, for holding your newly established Nalitabari haut. Since by reason of the days fixed for holding this newly established rival haut being exactly the days on which the Tarajung haut is held, an occurrence leading to a breach of the peace took place at the said newly established Nalitabari on the 20th of April, 1875, corresponding with the 8th of Bysack of the year 1282 B.S Consequently, unless the days for holding the said Nalitabari haut be altered, there is every likelihood of men's health and peace being affected, and of affrays and breach of the peace taking place in future. Hence you are hereby prohibited from holding the Nalitabari haut on Tuesdays and Fridays in accordance with the provisions of section 518 of the Criminal Procedure Code, and you are ordered to alter the days for holding the said haut. The 31st May, 1875.”
We may assume, for our present purpose, that the circumstances under which the Magistrate was called upon to interfere were such as to enable him to make an order of some kind under that section.
The question is, whether he had the power, under any circumstances, to make an order prohibiting the plaintiff for ever from holding a haut on every Tuesday and Friday on his own land.
We believe that this is the first occasion on which this point has been seriously considered by a Full Bench of the Court; and as we are aware that Magistrates in this country have been in the habit of making orders of this nature, restraining persons for an indefinite period from the exercise of civil rights over their property, and as this practice has apparently derived some sanction from former Full Bench decisions of this Court, it has been thought advisable in this instance to take the opinion of the whole of the Judges, in order to determine a question, which undoubtedly is of very great importance to the public.
The first of these decisions is the Reg. v. Abbas Ali Chowdhry, reported in the 6 B.L.R, 74. The order of the Magistrate in that case was made under section 62 of Act XXV of 1861, and the only question raised was, not whether the order itself was good or bad, but whether the High Court had any power to deal with it as a Court of Revision; and it was held that as the order was not a judicial act, the High Court had no such power. The next of these decisions was in the matter of Bykuntram Shaha Roy, 5 B.L.R, 434. The order there also, which was similar in its terms to that which we now are considering, was made under section 62 of the Act of 1861; but the question which was argued and decided there was, whether a Magistrate under that section could prevent a landowner from doing a lawful act on his own land; it being contended that he had only a right to prevent acts which were in themselves unlawful.
The point which is now before us, namely, the time during which such an order could legally be made, was not raised, or intended to be raised, in that case; for the Chief Justice, in delivering the judgment of the Court, expressly says: “It is not necessary for us to determine the question whether the Magistrate has in this particular case exercised his discretion in a proper manner, or whether his order, as it stands, requires any amendment as to the duration of the injunction or otherwise, for these questions have not been referred to us by the Division Bench.” And he goes on to say, “that there may be circumstances” which would justify a Magistrate in issuing an order under section 62, at least for a limited “time,” which shows that this point which we have now to decide was present to the mind of the Court, although they were not called upon to decide it.
The last Full Bench Decision, is which a similar order came under discussion, was in the matter of Chunder Nath Sen, I.L.R, 2 Cal., 293. The order there was made under section 518 of the present Code, with which we are now dealing; and the question referred was, whether this Court had jurisdiction to set aside the order, under section 15 of the Charter Act.
It was there contended that, under the circumstances, the Magistrate had no power to make any order at all; and if that were so that this Court could and should, under section 15, have act aside the order, as being made without jurisdiction.
But the Court decided that the circumstances were such as to give the Magistrate jurisdiction to act, and consequently that they could not interfere.
The point was never raised in that case, though probably it might have been that the terms of the orders itself, as regards its duration, were not warranted by law; and therefore we find ourselves now dealing with a point, which, although mooted on more than one occasion in this Court, and also by the Allahabad High Court, in the case of Kedar Nath v. Rugho Nath, 5 N.W.P, H.C, 104, is for the first time directly submitted for our determination.
The provisions of section 62, in the Code of 1861, are substantially the same as those of section 518 of the present Code; but there are certain explanations appended to the latter section which aid us materially in the construction of it.
The first of them relates to the cases to which the section was intended to apply; and shows that it is applicable only where a speedy remedy is called for; and where, for either of the reason specified, a more formal procedure would be inappropriate. We think it would be inconsistent with this expression of the intentions of the Legislature, that a Magistrate should pass under this section an order meant to have more than a temporary operation; and although such order may no doubt, for what seems to the Magistrate sufficient cause, restrain a man in the otherwise lawful exercise of his rights, such restraint ought clearly not to be indefinite in its terms, or to have effect beyond the urgency which it was intended to provide for.
Now in this instance, it is clear that the order of the Magistrate would have such effect.
The plaintiff says, in his plaint, that for many years past he has been in the habit of holding a haut on every Tuesday and Friday in his own mouzah; and that as the owner of the adjoining mouzah insisted on holding a rival haut on the same days, disputes arose and violence was threatened, which the Magistrate was called upon to prevent, whereupon he made the order in question, under section 518, prohibiting the plaintiff for the future from holding his haut on Tuesdays and Fridays.
We consider that the Magistrate had no jurisdiction to make so wide an order, and that the grant of what is in effect a perpetual injunction is entirely beyond his powers. He might have prohibited the holding of the haut on any particular occasion or occasions, but he had no right to deprive the plaintiff for ever of a right to which he was by law entitled.
The last question, therefore, is answered in the negative; and we now proceed to deal with the questions 1, 2, and 3, which may conveniently be answered together.
The plaint, after alleging that the plaintiff had held his haut on his own land for many years, on Tuesdays and Fridays, alleges that the defendant set up a rival haut, and endeavoured to prevent persons from attending the plaintiff's haut. That this led to disturbances, which ended in the Order being made by the Magistrate, prohibiting the plaintiff from holding his haut on the above days, and that the plaintiff has suffered loss and damages to consequence.
We think that, assuming these facts to be true, the plaintiff is entitled to a decree declaring that, as against the defendant, he has a right to hold his haut on Tuesdays and Fridays.
We are agreed that, for the purposes of this case, it is unnecessary to answer the 4th question.
section 518 of Act X of 1872