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OT

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QUARTER SESSIONS PRACTICE.

91 ¥^atie Jflecuni

OF

GENERAL PRACTICE

IX

APPELLATE AND CIVIL CASES

AT

QUARTER SESSIONS.

By FREDERICK JAMES SMITH,

•M

OF THE MIDDLK TEMPLE, BARRISTEE-AT-LAW, RECORDER OF MARGATE.

"PALMA NON SINE PULVERE."

\

3^

LONDON :

STEVENS AND HAYNES,

BELL YARD, TEMPLE BAR.

1882.

LONDON :
BRADBURY, AGNEW, & CO., PRINTERS, WHITEFRIARS.

TO

THE RIGHT HONOURABLE

JOHN DUKE, LOED COLERIDGE,

OF OTTEIIY ST, MARY, IN THE COUNTY OF DEVON,

LORD CHIEF JUSTICE OF ENGLAND,

&c., &c.

My Lord,

With every sentiment of respect, and by your
Lordship's kind permission, I dedicate to your Lordship
this vade mecum of Quarter Sessions' Law ; and I have the
honour to be,

My Lord,
Your Lordship's obliged and faithful servant,

FREDERICK JAMES SMITH.

4, Essex Court, Temtlb,
November, 1882.

PREFACE.

The object of this " vade mecum " is to place before the
justices at Quarter Sessions, and the profession practising in
those courts, the law relating to the various matters which
from time to time come before them in appellate cases.

The subjects are arranged alphabetically for the convenience
of reference ; and by the practitioner keeping the text au
courant with contemporaneous authorities, by making a note
of any new Act of Parliament passed or decision found, the
work may prove a useful compendium of those subjects on
which an appeal may be made to a Court of Quarter
Sessions.

F. J. S.

Essex Court, Temple,
November, 1882.

CONTENTS.

PAGE

Table of Cases . . , xiii

Table op Statutes Ixix

Addenda ci

PART I.

The Ccnstitution of the Court of Quarter Sessions .... 1

The General Jurisdiction of the Court -.4

The Members of the Court 5

The Justices 5

The Recorder and his Court ....... 8

The Clerk of the Peace 14

The Convening the Sessions KJ

Preliminary Proceedings 16

The Adjournmeat 17

PART II.

Admiralty ............. 20

Adulteration —

Bread 21

Drugs and Food 23

Seeds .28

Affiliation 2!)

Agricultural Gangs . 49

Alehouse — The Licensing Acts.

The Licence 49

Appeal 67

Offences 73

Disqualification of Premises . . . . . . .89

a 3

X CONTENTS.

PAGE

Animals .... 90

Cruelty . . 91

Poisoning and Drugging ... ... 94

Vivisection 95

Contagious Diseases (Animals) Act, 1878 . . . . . 97

Slaughter-houses 99

Appeal —

Appellant 105

Eespondent 114

Notice 117

Baines' Act 121

Court to which Appeal to be made 138

The Hearing . 144

Apprentice 155

Arbitration 161

Baker 164

Baths and Washhouses , 166

Betting Houses , 166

Billiards . . . 169

Borough Rate , . . . .171

Bridges 172

Cemeteries 179

Certiorari 179

Chimney Sweeps 187

Church 187

Common Inclosure Act 188

Companies Consolidated Clauses Acts 190

Conspiracy and Protection to Property Act, 1875 . . . . .192
Constable —

High Constable 194

Parish Constable 195

Convicts 196

Criminal Law —

The Larceny Act, 1861 197

The Malicious Injury to Property Act, 1861 197

Costs 198

County Rates 205

Dealers in old Metals 212

Dissenters 214

Dynamite 215

Evidence 216

CONTENTS. XI

PAGE

Excise ^^^

Explosive Substances -^^^

Fines, Recognizances, Estreats 24 (>

Fish and Fisheries ^^^

Freshwater Fishery Act, 1878 250

Salmon Fisheiy Acts • . . 251

Sea Fisheries Act, 1868 259

Oysters and Mussels 260

Friendly Societies 262

Gaming 266

Gas and Gas Measures 270

Habitual Drunkards 274

Harbours, Docks, and Piers 27a

Highways 280

Industrial Societies ^^'^

Landlord and Tenant —

Fraudulent Eemoval of Goods ^32

Lunatic Paupers ^*^*

Lunatic Criminal Paupers ^^^

Mandamus . ^^^

Markets and Fairs ^^^

Merchant Shipping Acts 3^^

Municipal Corporations . ^^^

Pawnbroker , ^^^

Poor-rate —

Rating in general .• • • ^^^

Rating Small Tenements • ^^26

The Assessment Acts and Appeal . 429

The Valuation (Metropolis) Act, 1869 444

Poor —

Removal and Settlement 453

General Observations • 45?

Settlement —

Abandonment of Order of Removal ..... 466

Apprentice 467

Birth 468

Certificate ....,....• 472

Derivative Settlement . . . . . . . . 472

Estate 474

Effect of Order not appealed against . . . , . 482 •

Effect of Confirming or Quashing an Order on Apj^oal . 483

Parentage 485

Renting a Tenement ........ 487

XU CONTENTS.

PAGK

Poor — continued.

Settlement — continitcd.

Residence 4'Ji

Payment of Hates 490

Post Office 502

Public Health Act 505

Rogues and Vagabonds . . . . ' 512

Special Case 518

Summary Jurisdiction Acts 535

Theatres 553

Time . . . * . . , . . . . . . . . 555

Towns Improvement Clauses Act, 1847 55<>

Ti ades Unions 5f) I

Volunteer Force 563

Weights and Measures Act, 1878 . • 5(15

Wreck 569

INDEX 571

TABLE OF CASES.

Abbot of Coombe's Ca. — Bridges .
Aberavon, E. v. — Poor- Rate
Aberdale Canal Co., R. v. — Time .
Abergele, R. v. — Appeal

— R. V. — Certiorari .
Abergwilly, R. r. — Evidence

— R. V. — Settlement
Abingdon Union, R. v. — Settlement
Abney Park Cemetery Co. — Poor-Rate
Acerro v. Petroni — Evidence
Acton, R. V. — Settlement
Adams, R. v. — Poor-Rate
Aerated Bread Co. v. Greig, or Grigg — Baker
Agar, R. v. — Poor-Rate
Aire and Calder Navigation, R. v. — Sum. J. Acts
Akers, R. v. — Excise
Aldbury, R. v. — Poor-Rate
Aldstone, R. v. — Apprentice
Allcock, R. V. — Court .
Allen, R. v. — Certiorari

— R. V. — Court

— R. V. — Fisheries

— R. v.— Sp. Ca. .

— V. Liverpool Overseers — Poor-Rate
Alleyne, R. v. — Certiorari
AlUbrd V. Nutt — Alehouse
Allison v: Monkwearmouth — Poor-Rate
All Saints, Cambridge, R. v. — Settlement

— Derby, R. v. — Settlement .

— Newcastle, R. v. — Costs

— Poplar V. Middlesex — Lunatic Pauper

PAGE

,

175

.

392

556

.

132

,

184

.

222

471

495

.

398

,

228

487

,

423

,

164

386

399

,

540

,

240

.

394

159

.

6,7

180,

183

,

7,8

.

258

520,

521

.

417

,

182

,

77

385

390

.

489

483

489

,

201

,

338

XIV

TABLE OF CASES.

All Saints Wigan Churcliwardens — Mandamus
Alnwick Com. Council — Poor- Kate

— K. V. — Settlement .
Alverstone, E. v. — Sp. Ca. .
Ambleside, E. v. — Poor-Eate
Amershara, E. v. — Apprentice
Amherst, Lord, v. Lord Sommers — Appeal

— V. Lord Sommers — Poor-Eate

Amptliill, E. V. — Settlement
Anglesea, E. v. — Settlement
Anthony v. The Brecon Market Co, — Animals
Antony v. Cardenham — Affiliation
Appleford, E. v. — Mandamus
Archley v. Sprigg — Affiliation
Ardington, E. v. — Sp. Ca. .
Arkle v. Hengoll — Merchant S. A.
Arlecdon, E. v. —Appeal
Armitage, E. v. — Affiliation .
Arnold v. Blaker — Highways

Arthur v. The Commissioners of Sewers — Certiorar
Ashhrittle v. Wyley — Settlement .
Ashby Folville, E. v. — Bridges

— — E. V. — Highways
Ashford, Ex parte — Appeal . . .
Ashton, E. V. — Alehouse
Aslackby, E. v. — Settlement
Asprel V. Lancashire — Appeal

— — —Time .
Aston, E. V. — Settlement
Aston-nigh-Birmingham, E. v. — Appeal

— — E. v.— Sp. Ca.

Atkinson v. Newcastle and Gateshead Water "Works Co.

— V. Sellers — Alehouse
Attorney-General v. Bryant — Excise

— — V. Davy— Appeal

— — V. Dyer — Excise

— — V. Earl Sefton— Poor-Eate

— — V. Hawkes — Excise .

— — V. Hitchcock — Evidence

— —v. Kennefeck — Excise

— — V. Lockwood — Alehouse

— — V. Moore — Fines, &:c.

— — V. Pemberton — Excise

— — V. Eudlop — Excise

— — V. Tomsett — Excise .

— — V. Windsor, Dean— Evidence

110,

31

Aj^peai

PAGE

350
394
466
519
387
158
. 118
399
456
466
100
30
350
36
529
358
148
37, 48
. 307
. 180
. 475
. 173
. 294
. 123
. 77
477, 478
. 123
556, 557
. 471
. 136
520, 527
. 117
. 84
. 240
. 133
. 235
. 420
. 236
. 231
. 239
. 85
. 249
. 239
. 238
. 239
. 219

TABLE OF CASES.

XV

Attwood V. Cave
Austin V. Alsen-
Avard v. Dunn —
Aveland v. Lucas
Ax:mouth, R. v.—
Aylesbury, R. v.-
Aylesford, R. v.—
Aylesford Union,
Ayre Navigation,

-Merchant S. A
Merchant S. A.
Alehouse .
— Highways
-Settlement
-Apprentice
-County Rates
R. V, — Poor- Rate
R. V. — Poor-Rate

PAGE

. 363

356, 366

. 77
330, 331
. 501
. 158
. 205
388, 392
. 403

Badcock, R. v. — Poor-Rate
Badger, R. v. — Sura. J. Acts
Bagott V. Orr — Fishery
Bagshaw, R. v. Highways .
Baildon, R. v. — Apprentice .
Bailey v. Jamieson — Highways
Baker v. Lock — Poor-Rate .
Banbury, R. v. — Apprentice

— R. V. — Settlement

— V. Pope— Pub. H. Act
Bank of England, R. v. — Mandamus
Baptist Mill Co., R. v. — Poor-Rate
Barber v. Dennis — Apprentice
Barker, R. v. — Sum. J. Acts
Barlstone, R. v. — Apprentice
Barnard Castle, R. v. — Settlement

— — — Sp. Ca. .

Barnes v. White — Sum. J. Acts .
Barnesley, R. v. — Settlement
Barnet Rural Sanitary Authority, R. v. — Pub. H. Act

— Sanitary Authority, R. v. — Time
Barns, R. v. — Sp. Ca. .

— V. Chipp — Adulteration
Barnsley, R. v. — Lunatic Pauper
Barnsly, R. v. — Settlement .
Barnston, R. v. — Sp. Ca.
Barr, R. v. — Highways
Barrs v. Jackson — Settlement
Barry v. Anaud — Merchant S. A.
Barton v. Hulm — Apprentice

— V. Piggott — Highways
Barton Regis v. Liverpool — Settlement

— — Union v. Berks Clerk of the Peace — Settlement
Barton-under-Irwell — Apprentice ......

. 398
. 536

249, 251

310, 311
. 158
. 292
. 437
. 160

466, 468
. 507
. 350
. 419
. 158
. 541
. 160

480, 481
. 526
. 540
. 468
. 505

557, 559
. 531
. 26
. 335
. 487
. 526
. 306
. 484
. 373
. 160
295, 296, 297
. 473
. 496
. 160

XVI

TABLE OF CASES.

Bate V. Kinsey — Evidence .
Bateman, R. v. — Costs
Bates V. McCormack — Animals
Bath (Mayor), R. v. — Poor-Rate .

— Recorder, R. v. — Borough Rate .

— — — Municipal Corp. Act
Battams, R. v. — Certiorari .
Battle, R. v. — Poor-Rate
Bavin v. Hutchinson — Poor-Rate .
Baxter v. Taylor — Highways
Baylis v. Strickland — Certiorari .
Beadsworth v. Torkington — Highways .
Beamont v. Bligh— Appeal .
Beard v. Gray — Time ....
Beaufort (Duke) v. Smith — Evidence .
Beddingham, R. v. — Settlement .
Bedford (Duke of) v. Co vent Garden Overseers — Poor-Rate
Bedfordshire, R. v. — Appeal . . 49, 69, 72, 115,

— R. V. — Excise

— R. V. — Evidence

— JJ. V. St. Paul, Bedford
Bedrainster, R. v. — Costs

— Committee, R. v. — Poor-Rate

Bed well, R. v. — Appeal
Bedworth, R. v. — Poor-Rate
Beeston, R. v. — Appeal
Belasco v. Hannent — Alehouse
Belford, R. v. — Settlement .
Belhaven Stanton Peerage Ca. — Evidence
Bell, R, V. — Poor-Rate
— V. Crane — Poor-Rate .
Belton, R. v. — Alehouse
Bendall, R. v. — Alehouse
Bengeworth, R. v. — Settlement .
Bennett v. Atkins — Poor-Eate

— V. Edwards — Poor-Rate .
Bent, R. v. — Sum. J. Acts .
Bentley, R. v. — Settlement .
Berenger, R. v. — Evidence .
Berkhampstead v. St. Mary, Northchurch-
Berkley, R. v. — Certiorari .
Berkshire, R. v. — Appeal

— R. V. — Excise

— R. V. — Settlement
Berry, R. v. — Affiliation

Poor

Rate

Settlement

390,

PAGE

. 219

. 204

. 92

. 390

. 171

. 374

. 183

. 393

. 429

. 306

. 182

. 290

. 143

. 556

. 223
463, 487

. 402

130, 133, 134, 138,
551

. 242

. 222

. 400

. 200
402, 403

. 106

. 420

. 133

. 76

. 477

. 221

391, 394, 400, 403

. 397

69
60
. 501
. 428
. 381
. 536
. 484
. 228
. 457
. 182
. 125
. 242
477, 493
31, 37

TABLE OF CASES.

XVll

PAGE

Beverley Gas Co., R. v. — Poor- Rate 396

Bew V. Harston — Alehouse ......... 77

Billingliay, R. v. — Apprentice . . - . . . . .159

— R. v.— Sp. Ca 527

Bilston, R. v.— Poor-Rate 385

Bilton, R. V. — Alehouse . . . . . . . . .69

Bingley, R. v. — Appeal 131

Binney, R. v. — Certiorari 183

— R. v.— Costs 204

Birkhamstead v. St. Mary, North Church — Settlement .... 481
Birmingham, R. v. — Alehouse ........ 64

— R. V. (14 East 25)— Settlement 456

— R. V. (13 L. J. M. C. 1)— Settlement . . . 463, 471

— R. v.— Costs 200

— R. -y.— Evidence 223

— Canal Navigation Co. v. Birmingham — Poor- Rate . .413

— Churchwardens v. Shaw — Appeal . . . . .118

— ■ V. Bacchus — Lunatic Pauper ...... 336

— Gas Co., R. v.— Poor-Rate . . . . . . 389

— and Staffordshire Gas Light Co., R. r. — Poor-Rate 407, 415, 423

— (Unions), R. v. — Settlement ...... 460

Bishopton, R. v. — Settlement 489

— R. v.— Sp. Ca 527

Bishop Wearmouth, R. v. — Appeal 109, 110

Blackawton, R. v. — Appeal 114, 130

Blackmoor v. Glamorgan Canal Co. — Appeal 108

Blackpool Pier Co. v. Fylde Ass. Cora., &c. — Highways . . . 292

— — — Poor-Puite . . .381

Blaine, R. v.— Affiliation 30, 31

Blake v. Beech — Excise 236

Blanchard, R. v. — Mandamus ..... t . . 351

— R. v.— Sp. Ca 527

Blane, R. r. —Affiliation . . 30, 31

Bleasby, R. v. — Settlement ......... 474

Blewitt V. Tregonning — Evidence 232

Bliss, R. V. — Evidence . , 222, 223

Bloxham, R. v. — Certiorari 184

— R. v.— Sp. Ca 531

Blues, In re — Alehouse 69, 165

— — Agricultural Gangs ........ 49

— —Appeal 118, 130

— — Fines, &c. . . 249

— — Mandamus ......... 351

— Ux parte — Sum. J. Acts 545, 546

Blyth Harbour Dock Co. v. The Teignmouth Uuion— Poor-Rate . . 403
Bolton-le-Sands, R. v. — Settlement 456, 458

XVlll

TABLE OF CASES.

Bolton, R. V. — Appeal .

— R. V. — Affiliation

— R. V. — Excise

— R. v.— Sip. Ca.
' — (Recorder), R. v. — Mandamus

Bond, R. V. — Appeal .
Bonfield v. Smith — Evidence
Booth V. Shadgate — Weights, &c.
Boothroyd, In re — Sum. J. Acts .
Bosley v. Davies — Alehouse .
Boteler, R. v. — Alehouse
Bottesford, R. v. — Sp. Ca. .
Bouch V. Hall — Affiliation .
Boultbee, R. v. — Certiorari .
Bowes V. Fen wick — Betting Houses

— — Poor-Rate

Bowling, R. V. — Settlement
Bowman v. Bligh — Alehouse
Bowuess, R, v. — Settlement
Boynton, Ux parte — Affiliation
Bradenben, R. v. — Settlement
Bradford, R. v. — Gaming

— R. V. — Poor-Rate .

— Union v. Wilts Clerk of the Peace
Bradlaugh, Ex parte — Certiorari .

_ _ _Sp. Ca.

Brain v. Preece — Evidence .
Braintree, R. v. — Sp. Ca.

— R. V. — Evidence .
Bramley, R. v. — Lunatic Pauper .

— in-the-Marsh — Apprentice

— V. Moore — Settlement
Bray, R. v. — Sp. Ca. .
Brecknockshire, R. v. — Bridges .
Breton, R. v. — Poor-Rate
Brettle, R. v. — Poor-Rate
Brewster v. Sewell — Evidence
Brickhall, R. v. — Excise
Bridgenorth, R. v. — Settlement .
Bridgewater v. Bootle-cum-Linacre — Poor-Rate

— R. V. — Settlement .
Brigden v. Heighes — Alehouse
Brighthelmstone, R. v. — Settlement
Brightside, R. v. — Evidence
Brighton Poor, Directors of, R. r. — Settlement
Brightwell, R. r.— Sp. Ca

Lunatic

458,

PAGE

. 143
41
. 236
520, 521
. 351
114, 130, 153
. 229
. 567
536, 540
75, 77
. 65
526, 527, 529, 530
26
182
167
402
464
69
490
36, 40
484
268
389, 390
Pauper 347, 348, 349
. 182
. 520
. 224
• 528
. 218
. 347
. 159
. 500
530, 531
174, 177
. 400
. 418
218, 226
. 239
. 501
. 381
. 501
81, 82
466, 468, 483, 490, 492
. 223
459, 499
. 519

TABLE OF CASES.

XIX

Bringliam, E. v. — Mandamus
Brisby, R. v, — Affiliation
Briscoe v. Lomax — Evidence
Bristol (Recorder), R. v. — Alehouse

— — R. V. — Court .

— Docks Co., R. V. — Mandamus

— — R. V. — Poor- Rate
Brixham, R. v. — Appeal

— R. V. — Cost .

— R. V. — Settlement

— R. v.— Time.
Brook, R. V. — Appeal .

— R, V. — Evidence

— V. Noakes — Landlord and Tenant
Brotton Tomerby, R, v. — Apprentice
Brougliton, R. v. — Bridges .
Brown, Ex parte — Alehouse .

— — — Sum. J. Acts .

— V. Bussell— Pub. H. Act .

— V. Evans — Sum. J. Acts .

— V. Nicholson — Alehouse .

— V. Shaw — Sp. Ca.
— ■ R. V. — Affiliation

— R. V. — Rogues, &c. .

— V. Russell — Highways
Brownlow, R. v. — Time
Bruce v. Linton — Excise
Brune v. Rawlings — Evidence
Brunei v. Brighton — Appeal .
Buckingham, R. v. — Apprentice .
Buckinghamshire — Appeal, Affiliation

— R. V. — Appeal .

— R. V. — Costs

— R. V. — Mandamus .
Buckland, R. v. — Highways.
Bucks, R. V. — Appeal .

— R. V. — Bridges .

— R. V. — Certiorari
Buddenburg v. Roberts — Excise .
Budge V. Parsons — Animals .
Budwith, R. V. — Settlement.
Burclear v. Eastwoodhay — Settlement
Burgate, R. v. — Settlement .
Burgess v. Bosetefour — Sum. J. Acts
Burleigh v. Sibbs — Evidence
Burnley v. Netherley — Poor- Rate .

PAGE

351

38, 41

223

51, 68

13
350
411, 417
110
200
465
557
116
231
333
160
173

70
539
509
538

52
534
29, 35
515, 516
318
555
235
223
117
160
39, 47
131, 141, 145, 147
200
351
330
145
176
189
239

91
489
476
479
535
219
432

XX

TABLE OF CASES.

Burnley, R. v. Ex parte Kitg — Pub. If. Act .

Burrel's Ca

Burrouglis v. The Manchester Gas and Coke Co. — Gas, &c
Burrowclough v. Johnson — Highways
Burslem, R. v. — Apprentice .
Burton v. Henson — Church .

— R. V. — Sum. J. Acts.
Burton-upon-Irwell — Apprentice

— — Settlement
Bury St. Edmunds, R. v. — Settlement

— St. James', R. v. — Settlement
Bute (Lord) v. Grindall — Poor- Rate
Butler V. Mountgarrett — Evidence

— R. V. — Poor- Rate
Butterton, R. v. — Settlement
Button V. Thompson — Merchant S. A.
Byron, Be — Mandamus

PAGE

512
29
273
306
159
188
540
159
468
464
456
387
225
380
475
364
352

Calthokpe, R. v. — Highways

.

. 296

Cambridge Gas Co., R. v. — Poor-Rate .

. 413, 414, 415

— Guardians v. Parr — Rogues,

&c. .

. 315

— R. V. — Apprentice

. 158

— (Recorder) — Court

5

— R. V. — Mandamus

. 350

— R. V. — Poor-Rate

. 384

— Union, R. v. — Appeal

. 143, 144, 150

Cambridgeshire, R. v. — Appeal .

1

IB, 116, 117, 119, 120

— R. V. — Certiorari

. 184

— R. V. — Highways

. 318

— R. V. — Mandamus

. 352

Campbell v. R. — Appeal

. 143

Canford Magna, R. v. — Settlement

. 477

Capel, R. V. — Poor Rate

391, 404

Cappull, R. V. — Settlement .

. 502

Cardigan, S. Mary, R. v. — Settlement

. 454

Cardington, R. v. — Poor-Rate

. 403

Carlisle (Mayor), R. v. — Evidence

. 219

— Union, R. v. — Settlement

. 495

Carmarthen, R. v. — County Rates

. 212

— R. V. — Municipal Acts

. 374

— (Recorder), R. v. — Appeal

. 107

Carmarthenshire — Appeal

. 121

Carnarvon, R. v. — Maudamus

. 351

TABLE OF CASES.

XXI

Carnarvon, R. v. — Sp. Ca. .

— Union, R. v. — Lunatic Pauper

— V. Villebois — Evidence
Carnarvonshire (2 Q. B. 325) — Appeal

— (4 B. & Ad. 567)— Appeal

Carpenter v. Mason — Excise

— — — Sum. J. Acts
Carroll v. Livers — Animals .
Carshalton, R. v. — Settlement
Carter, Ex parte .
Cartworth, R. v. — Certiorari
Casson, R. v. — Highways
Castalia, The — Merchant S. A.
Casterton, R. v. — Settlement
Castleton, R. v. — Evidence .
Castle View, Leicester, R. r. — Poor-Rate
Castro, alias Tichborne — Certiorari
Caswell V. Wolverhampton, R. v. — Poor-Rate
Cates V. South — Alehouse
Catherall, R. v. — Cost .
Catherington, R. v. — Settlement
Catt, R. V. — Poor Rate
Catterhall, R. v. — Settlement
Cave V. Mountain — Excise .
Caverswall, R. v. — Settlement
Central Wingland, R. v. — Highways
Chadderton, R. v. — Evidence

— R. V. — Settlement
Chaddock v. Wilhraham — Sum. J. Acts
Chailey, R. v. — Settlement .
Chamberlain, Ex parte — Billiards
Chambers v. Bernasconi

— V. Smith — Time .
Chandler, R. v. — Sum. J. Acts
Chandlish v. Simpson — Alehouse
Clianeys v. Payne — Sum. J. Acts
Chantrell, R. v. — Animals .

— R. V. — Certiorari .

— R. V. — Municipal Corp. Acts

— R. v.— Sp. Ca. .
Chaplin, R. v. — Poor Rate .
Chapman v. Robinson — Appeal

— — — Highways
Chapman's case — Evidence .
Charles, R. v. — Apprentice .

— R. V. — Settlement .

PAQB

. 520
. 342

. 223
. 120
. 130
. 236
. 536
. 97
. 481
. 44
181, 182, 184, 185
. 319
. 364
. 463

216, 217
. 399
. 180
. 401
81, 82
. 201

477, 480
. 390
. 484
. 236
489, 493, 499
. 292

222, 224
. 470

536, 540

476, 477
. 169
. 225
. 556

536, 540
. 62
. 536
. 94
. 181
. 375

52.3, 524

387, 392
. 149
. 292
. 229
. 159
. 468

XXll

TABLE OF CASES.

Charlton, E. v. — Settlement
Charlton-on-Medlock, K. v. — Poor-Eate
Chart and Longridge, E. v. — Bridges
Charter v. Graeme — Sum. J. Acts
Chatfield v. Euston — Poor-Eate
Chatham, E. v. — Appeal

— E. V. — Costs
Chedeston, E. v. — Settlement
Cheesemore, E. v, — Certiorari
Chelmsford, E. v. — Apprentice
Chelsea "Water Works Co. — Poor-Eate

— — V. Putney — Poor-Eate
Cheltenham Commissioners, E. v. — Appeal

— — E. V. -Certiorari

— — E. V. — Court

— — E. u— Sp. Ca.
Cheshire, E. v. — Agricultural Gangs

— E. V. — Alehouse .

— E. V. — Appeal

— E. V. — Excise

— E. v.— Sp. Ca.

— E. V. — Sum. J. Acts
Cheshunt, E. v. — Settlement
Chester, E. v. — Court .

— E. V. — Mandamus .
Chew Magna, E. v. — Settlement
Chidley v. West Ham — Poor-Eate
Chilverscotton, E v. — Settlement
Chipp, E. V. — Sum. J. Acts
Chipping Norton, E. v. — Settlement

— Sodbury, E. v. — Certiorari
Chirk, E. v. — Apprentice
Chorlton Ass. Com. v. Chorlton Overseers — Poor-Eate
Christohurch, London, E. v. — Settlement
Chugg, E. V. — Affiliation
Churchill and Booth, E. v. — Poor-Eate
Cirencester, E. v. — Settlement
Clapham, E. v. — Settlement
Clark V. Fisherton Ongar — Poor-Eate .
Clarke v. Alderbury Union — Poor-Eate

— — — Certiorari

— — — Sp. Ca. .

— V. Bainbrooke — Arbitration

— V. Haigh — Animals .

— V. SafFery — Evidence .
Clayton, E. v. — Affiliation .

115, 125,

380, 387,

PAGE
491

433
175

536, 540, 541
. 379
113, 114
. 199
. 490
. 185
. 160
. 391
. 415
. 155
. 182
5
. 520
49
69, 72
130, 133, 146
242
520
551
489
8
350
475
423
482
536
489
185
160
433
500
32, 34
393
484
471

386, 388, 392
389, 392, 421
182, 185, 186
. 524
. 163
. 91
. 229
47. 48

31,

TABLE OF CASES.

XXlll

Clayton R. v. — Poor-Rate .

— R. V. — Sum. J. Acts
Clew, In re — Alehouse .
Clews, In re — Fisheries
Clifton V. Dunsmore — Sp, Ca.
Clyde Navigation Trustees v. Adam son— Poor-Rate
Coates V. Birch — Evidence .
Cobbe, R. r.— Poor-Rate
Cockfield V. Boxstead — Appeal
Coke, R. V. — Poor-Rate
Colam V. Hall — Animals
Colbeck, R. v. — Appeal
Colclough V. Smith — Evidence
Cold Ashton, R. v. — Settlement .
Cole V. Coulton — Alehouse .

— — — Rogues, &c.

— V. Manning — Affiliation
Colerne, R. v. — Appeal
Colley, Ex parte — Affiliation.
Collingbourne, R. v. — Apprentice
Collingwood, R. v. — Affiliation

— R. V. — Settlement .

Collins V. Treweek — Evidence
Colonial Bk. of Australia, R. v. — Certiorari

— — — V. Willan— Sp. Ca.
Colville, Ex parte — Court
Combe, R. v. — Apprentice .
Comberworth — Half, R. v. — Settlement
Comer v. Miller — Settlement
Commonwealth v. Ratcliffe — Evidence .
Congreve v. Upton — Poor-Rate
Connel, R. v. — Trades Union
Cook, R. V. — Costs ....
Cooker v. Cardwell — Pub. H. Act
Coombes, R. T. — Settlement.
Cooper V. Gibbons — Evidence

— R. V. — Highways

— V. Marsden — Evidence

— V. Osborne — Alehouse

— R. V. — Poor-Rate

— V. Simmons — Apprentice .

— V. The Wandsworth Board of Works — Alehouse
Cope V. Barber — Church

— V. Cope — Affiliation
Copley V. Barton — Alehouse
Coppull, R. V. — Evidence

PAGE

. 380
. 540
. 73

258, 262
. 531
» 395
. 219
. 432
. 154
. 403
92, 104
109, 113
. 223
. 475
75
516
37
133
41
156
30, 34
463
219
182
520
5
158
489
485
222
397
559
199
509
455
219
282
225
77, 82
398
160
65
188
35

70, 83, 85
. 225

XXIV

TABLE OF CASES.

PAGE

Corbett v. Haigh— Alehouse 82, 83

Core V. James — Adulteration

. 21

Cornwall, E. v. — Appeal

. 124

— R, V. — Court

. 18

Cornwell v. Saunders — Sp. Ca.

. 525, 530

Corsham, R. v. — Settlement.

. 483

Cortis V. Kent Water "Works — Appeal .

. 1

13, 117, 133

— — — County-Rate

. 212

— — — Poor-Rate

. 398

Cory V. Bristow — Poor-Rate .

. 394

Cottingham, R. v. — Cost

. 200

— R. V. — Settlement .

. 476

Coulbert v. Troke — Alehouse

. 84

Courteen v. Touse — Evidence

. 228

Coventry Canal Co., R. v. — Poor-Rate .

411, 419

— (Mayor) v. Lythall — Highways

. 290

Coyne v. Brady — Animals .

. 92

Crabbe, R. v. — Poor-Rate

. 432

Crayford, R. v. — Settlement

. 493

Creafe v. Sawle — Poor-Rate .

. 392

Crease v. Barrett — Evidence

. 223

Crediton, R. v. — Apprentice

. 158

— R. V. — Lunatic Pauper .

342, 348

— R. V. — Settlement

471, 472

Creech, R. v. — Settlement ....

. 471

— St. Michael v. Pitminster — Evidence

. 224

— — — — Settlement

. 471

Cridland, R. v. — Excise

. 238

Crosby v. Wadsworth — Poor-Rate

. 392

Cross V. Alsop — Poor-Rate .

. 429

— V. Watts — Alehouse

. 74

— Ex parte — Rogues, &c.

. 516

Cruden v. Leyland — Sp. Ca.

. 519

Cubit V. Maxse — Highways .

292, 307

Cudham, R. v. — Settlement .

. 461

Cullen V. Trimble— Affiliation

. 27

Cumberland, R. v. — Appeal .

. 125

— R. V. — Certiorari

. 180

— R. V. — Highways

. 300

— R. V. — Mandamus .

. 351

Curtis V. Buss (3 Q. B. D. 13 ; 47 L. J. M. C. 35 ; S. C. eo nom. Ex parte

Curtis, 27 W. R. 210) 49, 59, 69, 72, 96, 105, 115, 130,

133, 194, 242,^265, 304, 306, 351, 378, 505, 628, 551

— V. Marsh — Alehouse 81

— — —Time 555

Curwell V. Wolverhampton — Poor-Rate 402

Curzon, R. v. — Alehouse

.

.

.

.

.

. 59

TABLE OF CASES.

XXV

Damakell, R. r. — Affiliation ^ .

Dauford ik Taylor — Alehouse

Daniel v. Oracle — Poor Rate

Darley Abbey (liilis.), R- t'.— Sp. Ca.

Davton, R. v. — Certiorari

Daviduon v. McLeotl

Davies v. Evans ....

— V. Lloyd — Evidence .

— R. r. — Landlord and Tenant
Davis, Ex parte — Rogues, &"..

— Ex jifirtc ; S. C. R. V. Davis — Affiliation

— R. V. — Certiorari

— v. Scarce — Alehouse .
Davys v. Douglas — Sp. Ca. .

— — — Tlieatre .
Dawson v. Willoughby — Highways
Day V. Simpson — Theatre
Deal V. Scholfield — Alehouse
Dean Inclosure, R. v. — Commons Incl<)!?ure
Deane, R. v. — Alehouse

— R. V. — Appeal .
De la Beche v. St. James, Westminster — Poor Rate
Denbighshire — Appeal .

— R. V, — Affiliation

— R, t\— Time .
Denis, R. v. — Evidence
De Ponthieu v. Pennyfeatlicr — Highways
Derby, All Saints, R. v. — Settlement

— R. V. — Commons Inclosure
Derbyshire, R. v. — Affiliation

— R. V. — Appeal . . . . Ill, 1

— R. V. — Bridges .

— R. V. — Certiorari

— R. V. — Highways

— R. V. — Mandamus

— R. V. — Poor Rate

— R. v.— Time
Devon, R. v. — Appeal .

— R. r.— Time .
Devonshire, R. v. — Appeal .

— R. V. — Billiards

— Duke of V. The Barrow
Dewhurst, R. v. — Appeal
Dewsnap, R. v. — Appeal
Dickinsop, R. v. — Certiorari

— R. y.— Sp. Ca. .

Haematite Steel Co

13,

109, i:

33, 136, 1

— Poor Pa

1

PAGB

.

32

.

77

,

393

520

.

185

,

24

,

44

,

225

.

333

.

516

34, 35

.

180

.

83

533,

554

.

555

.

294

653,

555

.

74

189

51, 67,

681

109,

138

400

3, 121,

132

45

55e

216,

218

308

457

189

45

1, 142,

148

175

182

309

354

441,

442

557

1, 112

l4l

557

126

169,

175

te .

419

113

109

181

523

XXVI

TABLE OF CASES.

Dicks, R. V. — Higbways
Dickson, R. v. — Gaming

— V. Doubleday — County Rates
Diddlebury, R. v. — Settlement
Divison v. Gill — Highways .
Dobson, R. v. — Appeal
Dobyn, R. v. — Excise .
Doe V. Barnes — Evidence

— V. Beviss — Evidence

— d. Bowley v. Baines — Evidence

— V. Brown — Settlement .
Hodgson — Evidence .
Hutt — Settlement
Merrick — Settlement
Micliael — Evidence .
Ries — Evidence
Skinner — Evidence .

— V. Turford — Evidence .

— V. Turnford — Evidence .
■ — V. Watts — Settlement .

— d. Wilkins v. Marquis of Cleveland-
Doggett V. Catterns — Betting Houses
Ditcheat, R. v. — Settlement
Dorchester (Mayor) v. Ensor — Court

— V. Ensor — Highway's .
Dorset, R. v. — Bridges
Dorsetshire, R. v. — Time
Durstone, R. v. — Settlement
Douglas V. Clarke — Poor-Rate
Dover (Mayor), R. v. — Fines, &c. .
Downshire, R. v. — Highways
Drai)er v. Spearing — Highways

— — —Pub. H.' Act
Draughton, R. v. — Appeal .

— R. V. — Highways

Droitwich, R. v. — Settlement

. — V. Worcester — Lunatic Paupers
Dublin Corporation, R. v. — Borough Rate
Dudley Union v. Wolverhampton Union —
Duffield r. Curtis — Alehouse
Dugdale, R. v.- — Rogues, &c.
Duncan v. Topham — Time .

— V. Turner — Sp. Ca. .
Dunchurch, R. v. — Settlement
Dunkinfield, R. v. — Highways
Dunsford, R. v. — Poor-Rate

Settlement

Ar

poal

PAGE

. 282

. 268

. 206

. 466

314, 319

. 113

. 234

. 226

. 225

. 226

. 491

. 220

. 480

. 475

. 223

. 219

. 225

. 223

. 225

. 491

. 475

. 167

. 493

. 10

. 290
174, 177

. 558

. 481

. 383

. 246

. 318

. 319

. 507

. 129

. 288

. 483

. 343

. 172

. 138

. 79

. 514

. 555

. 521

. 477
307, 309

. 418

TABLE OF CASES.

XX vn

Durf^an v. Davies — Animals
Durham, Earl, R. u.— Poor-Rate
Durraut r. lioyes — Appeal .
— — Poor- Rate

Dursley, R. v. — Poor-Rate .

— R. V. — Sp. Ca.
Dyer v. Collins — Evidence .
Dyott, R. V. —Highways
— R. V. — Poor- Rate

PAGE

92

. 401, 40--i
117, 118, 383, 384
. 438
. 384
. 528
. 219
296, 302, 316
. 381, 384

Eakuing, R. v. — Apprentice

" Piling Grove, The," — Merchant S. A,

Ealing, R. v. — Appeal

Eastbourne, R. i\ — Settlement

Eastern Counties Railway Co., R. v. Poor-Rate

— — V. Great Am well — Poor-

— — V. Moulton — Poor- Rate
East Farleigh — Evidence

— India Co., R. v. — Mandamus

— Knoyle — Evidence

— Looe V. Cornwall — Borough Rate

— — — — Highways
Eastman v. Blackburn Ry. Co., R. v. — Appeal
East i\[ark, R. v. — Highways
Easton, R. t: — Sum. J. Acts
Eastwinch, R. v. — Settlement
Eastwood V. Miller — Betting Houses
Eatiugton, R. i\ — Settlement
Eaton, R. v. — Certiorari
Eccles Bierlow — Settlement .
Ecclestield, R. r. — Apprentice

— R. V. — Bridges .

— R. v. — Highways
Edindale, R. v. — .\pprentice
Edington, R. r. — Settlement
Edmunds, R. v. — Poor- Rate

— V. Walter — Evidence .
Edwards v. Bobbitt — Settlement .

— V. Rushholme — Poor-Rate

— R. V. — A[ peal
Edwinstowe, R. v. — Settlement .
Etiingham, R, v. — Sp. Ca. .
Electric Telegraph Co. v. Salford .
Eliott V. Majeudie — Explosive Substances

Rate

160
364
136
454

406, 408, 410
408

383, 334
217
350
216
172
287

101, 131
306
541
487
167
480
180

470, 471
160
173
294
158
477

433, 439, 443
229
454
425

109, 113
487
521
394
224
b 2 .

XXVlll

TABLE OF CASES.

Ellinor Conrad's Case — Settlement
Elliott V. Thompson — Cei-tiorari
Ellis, R. r.— Poor-Rate

— V. Thompson — Time .

— V. Watson — Evidence .
Elswick, R. V. — Apprentice .
Elvit, R. V. — Lunatic Pauper
Elwood V. Bullock — Highways
Ely, R. V. — Bridges

— R. V. — Costs

— R. V. — Fines, &c.
Erith, R. v. — Settlement
Essex, R. V. (5 B. & C. 431)— Apj.eal

— R. V. (4 B. & Aid. 276)— Appeal

— R. V. — Affiliation

— R. V. — Commons Inclosure

— R. V. — County Rates .

— R. V. — Sum. J. Acts .

— R. r.— Time . .
Ethelstane v. Oswestry — Alehouse
Etwall, R. v.— Poor- Rate .
Evans, R. v, — Court

— R. V. — Affiliation

— ?'. Reis — Poor-Rate .
Evelyn Rintcombe, R. v. — Settlement
Everdon, R. v. — Settlement .
Everest, R. v. — Poor-Rate
Everis^ R. v. — Sp. Ca. , .
Everton, R. v. — Appeal

— R. V. — Settlement .

— R. V. — Poor-Rate .
Excise, Commissioners of, R. v. — Appeal
Exeter, R. v. (or R. v. Mann) — Aleliouse
Exeter Union, Sid well, R. v. — Settlement

— v. St. Thomas — Settlement

Exminster, R. v. — Poor-Rate
Eyre, R. v.— Appeal . . 113, 116,

— R. V. — Mandamus

— R. V. — Poor-Rate
Eyton V. Mould — Poor-Rate

— V. Wocd — Poor Rate

135,

37,

L43, 1

PAGE

. 457

183, 184
. 393
. 555
. 225
. 160
. 340
. 307
. 173
. 203
. 246

470, 471
. 110
. 119
38, 39, 40, 47
. 189
. 212
. 545

557, 558
. 75
. 390
. 15
. 35
. 382
. 489
. 469

387, 393
. 527
. 142

474, 500
. 379
. 150
. 64
. 500
. 500

396, 399
45, 146, 147, 148
. 354
. 432
. 393
. 422

Falcon, Ex parte — Appeal
Farmer, R. v. — Poor-Rate
Farquhar, R. v. — Alehouse

125

403
64

TABLE OF CASES.

XXIX

Farrar, R. v. — Highways ....
Farringdon, H. v. — Sum. J. Acts .
Faversham v. Isle of Thanet Union — Lunatic Paupe
Faviell v. Eastern Counties Ry. Co. — Appeal
Fawcett v. Scriven-with-Tentergate — Poor-Rate

— V. York and North Midland Ry. Co. — Highwayi

Fenn and Thomas v. Griffiths — Settlem
Ferry Bridge, R. v. — Poor-Rate .
Ferry Frystone, R. v. — Evidence .

— — — Settlement
Fillingley, R. v.— Sp. Ca. .
Filloughby, R. v. — Settlement

Finch V. York Union — Lunatic Pauper
Firth, R. v. — Gas, &c. .
Fisher v. Bridges — Gaming .
— V. Howard — Alehouse
Fitzhardinge (Lord) v. Pritchett — Poor
Fitzpatrick v. Kelly — Adulteration

— — — Alehouse
Flackton, R. v. — Apprentice
Fladbury, R. v. — Appeal
Flannagan v. Bishop's NVearmouth — Ro
Fletcher v. Calthrup — Excise

— V. Calthrope — Sura. J. Acts

— R. V. — Affiliation .

— R. V. — Alehouse
Fletton, R. u — Poor-Rate .
Flintan, R. v. — Rogues, &c.
Flintshire, R. v. — Affiliation

— R. V. — Alehouse .

— R. V. — Appeal

— R. V. — County Rates

— R. v.— Time
Flockton, R. v. — Appeal
Flounders, He — Certiorari
Foleshill, R, v. — Poor- Rate .
Folkes V. Chadd — Evidence .
Folkstone, R. v. — Settlement

— R. u— Sp. Ca. .
Follitt V. Koetzow — Sp. Ca. .
Fonch, R. V. — Poor-Rate
Foot V. Baker — Alehouse

— V. Butter— Betting Houses
Fordingbridge, R. v. — Evidence
Forrest, R. v. — Poor-Rate
Foster v. Foster — Certiomri .

Rate

nt

gues.

&c.

33

PAGE

380
539
, 342
132
404
307
490
422
222
471
626
492
337
272
269

85
422

25

85
159
154
513
235
536

40

74
386, 420
515
38, 40

50
111
212
558
137
185
394, 421
229
501
526
527
384

77
169
218
394
181

31,

XXX

TABLE OF CASES.

Foster v. Hull — Excise

— R. V. — Poor-Rate
Foulness, R. v. — Apprentice.
Foundling Hospital, R. v. — Poor- Rate
Fowey (Mayor), R. v. — Mandamus
Fowke, R. I'. Poor-Rate
Fowler v. NeAvbigging — Gas, &c. .

— R. V. — Certiorari
Foxham Tithing Ca. — Certiorari .
Francis v. i\Iaas — Adulteration
Fredericks v. Howit — Theatre

— V. Payne — Tlieatre
Freeman v. Read — Affiliation

— — — Costs

— — — Poor-Rate
— Time

Freestone, Ex parte — Rogues, &c.

Ful bourne, R. v. — Poor-Rate

Fulliam V. The Isle of Thanet Guardians— liUnatic

Fuller, R. v. — Excise .

— R. r.— Poor-Rate

— Ex 2)ctrte — Landlord and Tenant
Fursdon v. Clogg — Evidence

Paupers

PAGE

. 240
. 400
. 159
. 430
. 3.50
. 403
. 272
. 182
. 182
28
. 554
. 554
38, 40
201, 202
382
556
517
397
339
234
400
333
223

Gainsborough, R. v. — Apprentice
Galloway v. Maries — Betting Houses
Gambiejr v. Lydford — Poor-Rate.
Gamble, R. r. — Costs .

— R. V. — Excise.

— R. u— Sp. Ca.
Garbett v. Simpson — Affiliati(m .

— V. Simpson — Evidence
Gardner, R. v. — Poor-Rate .

— V. Whitford — Harboiire, &c.
Garrett v. Potts — Alehouse .
Gascoign, R. v. — Highways .
Gaskell v. Bailey — Highways

— r. Bayley— Pub. H. Act .
Gathercole v. Miall — Evidence
Gay V. Matthews — Costs
Gee, R. v. — Poor-Rate.
" General Palmer, The "—Merchant S. A.
Genl. Steam Navigation v. The Lond.

Merchant S. A

Gibbons, R. v. — Affiliation .

k Edin

39

Shii

ping

Co.

159
167
7, 399
204
236
518

38
232
399
278

51
282
318
507
218
203
381
371

371
37

TABLE OF CASES.

XXXI

PAGE

Gibbons, R. u— Evidence 232

— R. t;— Pub. H. Act 512

Giddington, R. v. —Settlement 478

Gilberdike, R. v. — Certioiaii . . . . . . . .185

Giles V. Glubb— Highways 285, 287

— V. Tiney — Sum. J. Acts . . . . . . . .541

Gill V. Bright — Alehouse ......... 75

Gilliai-d, R. i'.— Certiorari 182

Gilroys, H. v. — Evidence ......... 228

Give V. James — Adulteration ........ 23

Givennear, R. v. — Apprentice ........ 159

Glamorganshire, R. v. — Adulteration ....... 23

— R. V. — Affiliation . . . . . . .45

— R. V. — Lunatic Pauper ...... 345

— R. v.— Appeal 107, 120, 138, 153

— R. V. — Bridges ........ 176

— R. v.— Costs 198, 199, 201

— Canal Co., R. v.— Poor-Rate 412

Glossop, R. V. (35 L. J. M. C. 148)— Settlement 459

— R. V. (17 L. J. M. 171)— Settlement 461

— R. -y. (4 B. & Aid. 616)— Theatre 554

Gloucester, R. v. — Appeal . . . . . . . . .111

— R. V. — Mandamus 350

— R. v.— Poor- Rate 389, 403, 423, 438

Gloucestershire, R. v. — Bridges 174, 175

— R. V. — Court 9

— R. y.— Highways . . . 290, 291, 322, 325, 326

— R. V. — Commons Inclosure . . . . .189

Glynne, R. v. — Affiliation . . . . . . . . 40, 47

Goddard r. Armour— Evidence . . . . . . . .219

Goldington, R. -?;.— Poor- Rate 409

Goodall, R. V. — Appeal . . . . . . . . .114

Goodcheap, R. v. — Poor-Rate ........ 384

Goodchild, R. r.— Poor-Rate 396, 404, 405

Goodday r. Mitchell— Poor-Rate . . 381

Goodeuough, R. v. — Certiorari 185

— R. V. — Appeal ........ 12o

Goodrich, R. v. — Mandamus . . . . . . . .350

Goodright v. Moss — Settlement ........ 471

— V. Moss — Evidence ........ 224

Goole, R. V. — Settlement 458

Gordon, R. v. — Poor-Rate 380

— V. Secretan — Evidence ........ 220

Gordon's Ca. — Evidence 226

Gore V. James — Baker 165

— V. The Special Commissioners for English Fisheries — Fisheries . 255

XXXll

TABLE OF CASES.

Grafton, Duke of, R. v. — Affiliation .....

Grahame v. Dyster — Evidence ......

Grand Junction Canal Co. v. Heme! Hernpstea«l — Poor-Rate

_ —R., u— Poor-Hate . . 386, 391,

— — V. King's Langle}' — Poor-Kiite

Grant, lie — Affiliation . . ...

— V. Oxford L. B. — Poor-Rate
Granville v. Utting — Evidence ....
Grave v. Clinel — Time ......

Graves v. Janson — Appeal

Gravesend, R. v. — Apprentice ....
Great Bentley, R. v. — Settlement

— Chart V. Kennington — Certiorari

— Claton, R. v. — Settlement ....

— Driffield, R. v. — Settlement

— Eastern Ry. v. Haughley — Poor-Rate .

— Glenn, R.'r.— Sp. Ca

— Northern & North-Western Ry. v. Inett — Apy^enl Costs

— — — — — Sp. Ca.

— Salkeld, R. v. — Settlement .

— Sheepy, R. v. — Sp. Ca.

— Wakering, R. v. — Settlement

— Western Ry. v. Bishop — Public Health Act

— — Ry. Co. V. Melksham — Poor-Rate

— — R. V. — Appeal .

— — R. V. — Poor Rate

— — V. Bridgeworth — Poor-Rate

— W^ishford, R. -?;.— Sp. Ca. .

— Yarmouth v. London Clerk of the Peace — Settlement

— — R. V. — Certiorari

— — R. V. — Court
Green, R. v. — Atliliation ....

— R. V. — Costs .....

— R. V. — Sum. J. Acts . . .
Greenwich Board of Works v. Maudsley — Higliways
Greig v. Burdens — Alehouse
Gremaire v, Le Clerk Bois Valon — Evidence .
Grepps u Durban — Excise ....
Grey v. Cookson — Sum. J. Acts .
Griffith V. Ricketts — Evidence
Griffiths y. Harris — Sum. J. Acts
Grimes, Ux parte ; S. C, R. v. — Affiliation .
Grimwood, R. v. — Evidence . . . .
Grindley v. Barker — Appeal ....
Guest V. East Dean — Poor-Rate .

— R. V. — Poor-Rate ....

40i

40

PAGE
41

220
412
420
412
31
304
226
555
113
159
493
182
457
475
409
526, 527
114, 200
534
456
526
476
507
7, 440, 441
108, 112
391, 405, 409
386, 410
. 530
. 473
. 182
6
. 41
. 201
. 536
. 307
. 76
. 227
. 236
. 541
. 230
. 541
30, 43
. 225
. 133
. 3C0
. 423

40

TABLE OF CASES.

XXXlll

PAGE

Guildford v. St. Olave's— Settlement 459

Guridge, K. v. — Certiorari 182

Gurney v. Gurney — Affiliation ........ 36

Gwyn V. Hardwicke — Commons Inclosure ...... 190

Hackney, St. John, R. v. — Settlement
Haddington, R. v. — Court .
Hadley v. Perks — Sp. Ca.
Hagworthingham, R. v. — Settlement
Haigli V. Sheffield Corporation — Bettin
Halifax, R. v. — Highways .

— R. V. — Settlement .
Hall, R. V. — Rogues, &c.
Halligan v. Ganly — Pub. H. Act .
Halliwell v. Halstead — Poor- Rate
Hammersmith, R. v. — Poor-Rate .

— R. V. — County Rates

Hampton v. Ricardo — Affiliation .
Hamstall Ridgware, R. r. — Merchant S
Hance, R. v. — Costs .
Hancock v. Soames — Time .

— V. Somes— Appeal .
Handley v. Ward — Evidence
Handsworth, R. v. — Pub. H. Act
Hanson, R. v. — Alehouse

— R. V. — Appeal

— R. V. — Court .

— R. V. — Evidence
Hants, R. r, — Appeal .
Harborne, R. v. — Sp. Ca.
Harcourt v. Fox — Court
Harding v. Pollock — Court .

— V. Williams — Evidence .
Hardwicke, R, v. — Settlement
Hardy v. Atlierton — Affiliation ,

— V. Higgins — Excise .

— V. Ryle — Appeal
Hare v. Osborne — Alehouse .

— V. Putney Overseers — Poor-Rate
Hargrave v. Hargrave — Affiliation

— V. Taylor— Sp. Ca.
Hargraves v. Dawson— Alehouse .

— V. Diddams — Fisheries.
Harnley, £x parte — Appeal .

2 Houses

A

. 464
17, 18
528
476
167
296
465
513
507
423
424, 434
205

30
359

199, 201, 202
555
125
231
512

73
106

14
227
114
5-26

14

14

220

458, 474

43
236
125

77

425

35, 36

525

55, 59

249

133

b 3

XXXIV

TABLE OF CASES.

Harrington^ R. v. — Settlement
— E. V. — Affiliation

Harrison v. Blades — Evidence

— E, V. — Mandamus .

— r. Stickney — County Eates

— — — Poor-Eate .

— Ex parte — Affiliation
Harro}) v. Bailey — Appeal ,
Harrow r. Edgeware — Settlement .
Harro wgate, E. v. — Poor-Eate
Harter v. Salford — Poor-Eate
Hartfield, E, v. — Appeal

— R. V. ovv. Eotherfield — Settlement
Hartfury, E. v. — Sp. Ca.
Hartington, E. v. — Settlement
Harvey v. Betlmal Green Vestry — Highways
Haslam, E. v. — Poor-Eate .
Hastings v. St. James', Clerkemvell — Settlement
Hatfield Broad Oak, E. r.— Settlement
Hawkes v. Clutterbuck — Apprentice
Hawkins, Ex parte — Sum J. Acts.

— E. V. — Fines, &c.

— E, V. — Poor-Eate .
Hawley, E. v. — Highways .

— V. Eogers — Eogues, &c, .
Haynes v. Hay ton — Fines, &c.
Hay ward, Ex parte — Appeal

— — — Evidence

— — — Sum. J. Acts

— V. Brink worth — Poor-Eate

— V. Holland — Alehouse .
Heaton, E. v. — Lunatic Paupers .

— E. v, — Poor-Eate

— Norris, E. v. — Settlement
"Hebe, The "—Merchant S. A, .
Helston v. St. Bride's — Settlement
Hendon Guard, v. Bowles — Pub. H. Act
Hereford (^layor) -y. Morton — Gas, &c.
Herefordshire, E. v. — Appeal

— E. v.— Court .
Hertfordshire, E. -y,— Mandamus

— R. v.— Time .
Hervey, E. v. — Appeal
Hei'vey, E. v. — Highways
Heslop, E, V. — Excise .
Heyop, R. y. — Sp. Ca.

38

31

PAGE

. 484
38, 39
. 225
. 350
. 212
. 384
37, 39

109, 112

. 481

. 398

7, 420, 424

. 113

459, 460
. 529
. 482
. 314
. 423
. 491
. 476
. 158
. 540
. 248
. 405
. 306
. 515

248, 249
. 150
. 226
. 541
. 385
66

347, 348
. 387
. 468
. 371

483, 484
. 509
. 273

125, 127
5
. 352
. 556
. 148
4, 315, 322
. 238
. 529

TABLE OF CASES.

XXXV

Hiath, E. v. — Highways
Hicham, R. v. — Sp. Ca.
Hidingham, R. v. — Appeal .
Higham, R. v. — Affiliation .
Hill V. Browning — Baker

— V. Coombe — Evidence .

— V. Hibbet — Evidence

— V. Thornycroft— Sp. Ca,
Hillier, R. v. — Costs
Hilton V. Bowles — Poor- Rate

— V. Fairclongh — Time .
Hinckley, R. v. — Evidence .
Hincklin, R. v. — Affiliation .
Hineley, R. v. — Sp. Ca.

Hinton v. Swindon New Town L. B. — Sp. Ca
Hinxworth, R. v. — Settlement
Hipswell, R. V. — Apprentice
Hirst?;. Halifax L. B. — Highways

— V. Molesbury — Rogues, &c
Hock worthy, R. v. — Appeal .

— R. V. — Settlement
Hodges V. Bennett — Affiliation

— R. V. — Fisheries
Hodgkinson v. Fnrner — Arbitration
Hodgson V. Carlisle L. B. H. — Poor- Rate
Hodsou V. Little — Fisheries .

— R. V. — C!ertiorari
Hogg, R. V. — iSp. Ca. ....
Holborn Union v. St. Leonard's — Poor-Rate
Holborow, R. v. — Affiliation.
Holden, R. v. — Fines, &c. .
Holford V. George — Fisheries
HoUingborne v. West Ham — Settlement
Hollington, R. v. — Settlement
Holloway, R, v. — Highways
Holm East Waver Quarter, R. v. — Settlement
Holmes and Moulton, R. v. — Affiliation

— R. V. — Evidence

— Ex parte — Rogues, &c.
Holy Trinity, Kingston-upon-Hull, R. v. — Settlement

— R. V. — Apprentice .
Home V. Bentick — Excise
Hood V. Lady Beauchamp — Evidence

— — — Settlement
Hopkins, R. v. — Court

— R. V. — Poor-Rate .

PAGE

295, 296
530
154
34, 40
164
231
225
528
204
393
557
217
32
530

522, 524
483
159
308
517
137
492
37
252
163
400

255, 259
184
531
398
45, 46
249
255
486
489
321
474
38
232
617
4f0
160
240
224
470
8
403

XX XVI

TABLE OF CASES.

Hopwood, ^a- jt?«7-f<?— Certiorari .
Horder v. Scott — Adulteration
Horley v. Eogeis— Constable
Hornclinrch, K. v, — Settlement .
Hornden-on-the-Hill — Settlement
Horner, R, v. — Highways
Horsley, K. v. — Settlement .
Hossack i\ Gray — Merchant S. A.
Hoiighton-le-Spring — Settlement .
Howe, R. V. — Certiorari
Hoyle V. Hitchman — Adulteration
Hubbard v. TiCigh — Evidence
Hudson V, Hill — Affiliation .
— Time

— V. McCrae — Fisheries

— r. McRae— Sum. J. Acts
Hughes V. Chatham — Settlement .

— V. Sunderland — Merchant S. A.

— V. True — Animals
Hull Dock Co., R. r.— Poor-Rate

— R. V. — Evidence .

— Recorder, R. v. — Highways .

— & Selby Ry. Co., R. v, — Mandamus

— V. Wingfield — Appeal .
Hulme, R. v. — Settlement .
Hunt V. AUgood— Settlement
Huntingdon, R. v. — Court .
Huntingdonshire — Appeal .

— — Affiliation

Huntly, Re — Arbitration

— R. V. — Costs .

— R. ?;. — Poor Rate (Metrop.)
Hurdis, R. v.—^\\ Ca.
Hurstmonceaux, R. v. — Settlement
Husthwaith, R. v. — Settlement .
Hutchins v. Chambers — Appeal .

— — — Mandamus

— V. Denziloe — Church

— R. V. — Excise
Hyde, Ex parte — Sum, J. Acts .

— R. V. — Sum. J. Acts .

— V. Watts — Time

Ideford, R. v. — Apprentice
Idle, R. v. — Settlement

.38(), 41

PAGE

183

25, 26

,

196

.

476

.

478

316

319

477

479

,

371

,

480

184

185

,

24

.

224

45, 46

,

555

249

252

,

536

,

501

,

360

100

1, 417,

421

.

222

325,

326

,

350

,

149

.

500

.

491

.

6

,

124

45, 46

.

164

.

203

,

451

.

529

.

491

,

501

.

117

350,

352

,

188

,

240

540

,

540

555

160

.

497

TABLE OF CASES.

XXXVU

PAGE

Iken, R. v.— Settlement 489

lies V. West Ham Union — Poor-Eate 427

Ilkeston, R. u — Apprentice . . 160

Ilkinstone, R. v.— Settlement 466, 468

Ilminton, R. v. — Settlement 481

Imperial Gas Light Co. v. The London Gas Light Co. — Gas, &c. . . 272

Incledon, R. u— Appeal 109, 112

Ingleton, R. v. — Settlement 476

Inman v. Kirkdale — Poor- Rate 417

Institute of Civil Engineers, R. v. — Pour- Rate 397

Ipswich (Corporation) — Court . . . . . . . ,16

— Dock Commissioners v. Ipswich Overseers — Poor-Rate . .381

— Union, R. v. — Settlement 495

Ireland v. Powell — Evidence ........ 223

— Poor Law Commissioners v. Liverpool — Settlement . . .457

Islington, St. Mary, R. v.— Settlement 457, 462

Lssey, R. u — Poor-Rate 379

Itham, R. v.-Sp. Ca 529

Jackson v. Thomason — Evidence
Jacob V. Lee — Evidence
James v. Phelps — Sum. J. Acts
Jarvin, Ex parte — Sp. Ca.
Jarvis v. Dean — Highways .

— R. V. — Weights, &c .
Jeffries' Case — Poor- Rate
Jenkins's Case — Affiliation .
Jennings v. Manchester — Alehouse
Jessop V. Brierly — Affiliation
Joddiell, R. V. — Poor-Rate .
Johnson, Ex parte — Affiliation

— — — Apjieal .

— V. Colam — Animals.

— R. u — Apprentice.

— — — Sum. J. Acts
Jollirfe, R. V. — Poor-Rate
Jones, Ex parte — Affiliation .

— V. Corry — Arbitration .

— V. Huxtable — Baker .

— V, Johnson — Borough Rate
v. The Mersey Docks Board

— Jie — Rogues, &c.

— r. R. — Highways
Jiikos, R. V. — Certiorari

— Excise , , .

Poor-Rate 387, 391, 395,

. 230
. 219
. 536
520, 521
. 306
. 563
. 390
. 38
. 51
. 37
. 404
. 46
. Ill
93, 98
. 156
. 540
. 394
. 35
. 163
. 164
. 171
396, 400, 416
516, 517
318, 319
. 181
. 235

XXVlll

TABLE OF CASES.

Kay, R. v. — Affiliatkm
Keen V. R. — Appeal
Kegworth, R. v. — Settlement
Kelstern, R, v. — Settlement
Kendall, R. v. — Appeal

— V. Wilkinson — Affiliation
Kendrick v. Guilsfield — Poor-Rate
Kenihvorth, R. v. — Settlement
Kenuett, R. v. — Baker .
Kensington, R. v. — Poor-Rate
Kent, JJ., R. v. (6 M. & S. 258)— Appeal

— R. V. (8 B. & C. 639)— Appeal

— R. V. (9 B. A C. 283)— Appeal

— R. V. (L. R. 1 Q. B. 385)— Ai^peal

— R. V. (L. R. 8 Q. B. 305)— Appeal

— R. V. (L. R. 6 Q. B. 132)— Appeal
Kent, R. v. (41 J. P. 263)— Alehouse .

— R. V. (41 J. P. 21)— Appeal

— R. V. (2 M. & S. 513)— Bridges .

— R. V. (L. R. 8 Q. B. 305)— Certiorari .

— R. V. (3 B. & Ad. 50)— Certiorari

— R. V. (2 Lord Ray. 1546)— Excise

— R. V. (10 B. k C. 477)— Highways .

— R. V. (35 L. J. M, C. 201)— Lunatic Paupers

— R. V. (41 J. P. 263)— Mandamus

— R, V. (36 L. J. M. C. 130)— Mandamus

— R. V. (9 B. & C. 283)— Poor-Rate

(L. R. 6Q. B. 132 -i ^ „ ^

— ^•^••i40L. J. M. C. 76/-^^^^-^^^

— R. V. (41 J. P. 263)— Settlement

— R. 1?. — . — Sp. Ca.

— R. V, — — Sum. J. Acts
Kenyon, R. v. — Highways .
Kerrison, R. v. — Bridges
Kesterton, R. v. — Appeal
Kesteven, R. v. — Sp. Ca.
Kettering v. ISTorthampton Lunatic Asylum — Lunatic
Kettleworth, R. i?.- Co.>ts .
Keynsham v. Bedminster — Settlement
Kibworth, R. v. — Settlement

— Harcourt, R. v. — Sp. Ca.
Kilby, R. r.— Sp. Ca. .
Kildare, E. v. — Poor-Rate
Kimbolton, R. r. — Appeal .
Kingsbridge Highway Board, R. v.— Highways
Kingsby, R. v. — Adulteration

PAGE

42

143, 144, 154

. 492

. 489

. 144, 148

48

. 393

. 483

. 164

. 398, 411

. 119

126, 127, 141

. 108, 112

. 139

. 132

113, 116, 133

59, 64, 65, 68

. 121, 155

. 176

. 184

. 185

. 234

. 318, 326

. 343

. 351

. 355

. 434

. 443

. 470
. 527
. 545
. 319
. 173
119, 137, 152
520, 527, 529
auper . . 336
. 199
. 473, 486
. 492
. 526
. 526
. 385
143, 146, 147, 148
. 295
. 21

.TABLE OF CASES.

XXXIX

Kingsby, R. r.— Raker.
Kingsclere, U. v. — vSettlement
Kingston's Ca., Duchess— Settlement
Kingswinford, R. v. — Poor-Rate .
Kintmere, R. v. — Poor- Kate.
Kirkin v. Jenkins — Rogues, &c. .
Kittow V. Liskeartl Union— Poor-Rate
Knaptoft, R. r. — Settlement
Knan-sborough, R. v. — Settlement
Knott, R. r.— Highways
Kuowles V. Tratford— Lunatic Pauper

PAGE

. 164

. 484

. 484

390, 414

385, 398

515

390

484

481

296

339

Laing v. Bishop Wearraouth — Poor-Rate
I^mb, R. r. — Poor-Rate ....
Lamberhurst, R. v. — Poor-Rate ,
Lambeth, R. v. — Appeal ....
Lancashire v. Cheetliam — Poor-Rate .

— R. v. (29 L. T. 886)— Affiliation

— R. V. (7 B. & C.)— Appeal .

— R. r. (8 B. & C. 59.5)— Appeal .

— R. V. (2 Q. B. 85)— Appeal

— R. V. (12 Q. B. 305)— Appeal .

— R. r. (18 Q. B. 361)— Appeal .

— R. V. (27 L. J. M. C. 161)— Appeal

— R. r. (8 E. & B. 563)— Appeal .

— R. V. (1 B. & A. 630)— Appeal . .

— R. V. (5 B. & Aid. 755)— Appeal .

— R. V. (7 B. & C. 691)— Appeal .

— R. r. (5 Q. B. 513)— Appeal

— R. r. (43 L. J. M. C. 116)— Appeal
_ R. r. (27 L. J. M. C. 161 ; S. C

Lancashire) .

— R. r. (L. R. 6 Q. B. 97)— Alehouse

— R. V. (7 Q. B. 839 ; S. C. 26 L. J. M

416, 423
. 405
. 405
. 132
. 400
. 38
. 120

111, 112
. 138
. 138
. 138

121, 142
. 145
. 116
. 113
. 120
. 132
. 108
22 W. R., Swift V.

122; 123, 125, 129, 136
60, 65
C. 171, Lancashire v.

. 170
. 184
17, 18
. 18

Staffordshire ) — Billiards
R. V. (4 B. & A. 289 ; 11 A. & E. 144)— Certiorari
R. V. (8 E. k B. 563)— Court .
R. V. (34 L. T. 124)— Court
R. V. (27 L. J. M. C. 161 ; S. C. 22 W. R. 76, Swift v.

Lancashire) — Highways .... 288, 320

R. V. (2 L. J. M. C. 244)— Highways . . . .285

R. r. (18 Q. B. 361)— Lunatic Pauper .... 344

R. V. (3 N. S. C. 42)— :Mandamus 354

R. V. (3 E. & B. 336)— Poor-Rate

xl

TABLE OF CASES.

Lancashire, JJ. v. Stratford — Poor-Eate

— V. Staffordshire (S. C, R. v. Lancashire, 7 Q. B. 839)—

Billiards .
Landulp, R. v. — Poor-Rate .
Lane v. Cobham — Poor-Rate.
Langham, R. v. — Apprentice
Lanyon, R. v. — Affiliation .
Langhlin v. Saffron Hill — Poor-Rate
Lawes v. Arlsey — Appeal
Lawford, R. v. — Settlement.
Lawrence v. Ingmire — Affiliation .

— V. Tolleshurst Knights — Poor-Rate
Leake, R. v. — Highways
Leary v. L oyd — Merchant S. A
Leatham v. Bolton-le-Sands — Lunatic Paupers
Lecoiilield (Lord) v. Earl Lonsdale — Fisheries
Lee, R. v. — Poor-Rate .....
Leeds, R. v. — Appeal

— R. V. — Evidence ....

— R. V. — Mandamus ....

— R. y.— Settlement . . 458, 461, 463, 473, 4

— and Liverpool Canal Co., R. v. — Poor-Rate

— (Recorder), R. v. — Appeal.

— — R. V. — Costs .

— V. Wakefield — Lunatic Pauper
Legg V. Edmonds — Affiliation
Legge V. Bond — Wreck
Leicester, R. v. — Court . • .

— V, Torrens — Alehoase .
Leicestershire, R. ^\ — Affiliation .

— R. V. — Alehouse .

— R. V — Appeal

— R. V. — Mandamus.
Leigh, R. v. — Evidence
Leith Harbour and Docks v. The Inspectors of the Poor

— — Co. v. Inspectors of the Poor — Sum. J

— R. V. — Poor-Rate
Lethbridge v. Winter— Highways
Lewes, R. r. — Lunatic Pauper
Lewis V. Arthur — Fish .

— R. V. — Certiorari

— V. Swansea — Poor-Rate
Liddiard v. Reece — Adulteration
Limehouse, R. v. — Arbitration

— R. V. — Sp. Ca. .
Limland v. Stephens — Merchant S. A.

PAQB

400

. 170

. 381

. 380

. 160

. 41

. 398

. 108

. 474

32, 37

. 405

. 307

. 364

. 347

. 255

416, 424

. 119

. 226

. 350

4, 484, 487, 496

. 412

130, 140

. 200

. 341

. 36

. 569

. 15

. 75

46, 47

. 65

15, 134, 141, 142, 154

351

223

395

538

394

307

348

257

180

401

25

163

518

364

— Poor-Rate
Acts

TABLE OF CASE^.

xli

Lincoln, R. v. — Bridges ....

— Corp. V. Holm Common — Poor-Eate
Lincolnshire, K. v. — Appeal

— R. v. — Mandamus .

Lindsey, R. v. — Appeal ....

— R. r. — Highways ....
Linkinhorne, R. v. — Apprentice .

— R. V. — Settlement .
"Lion, The,"— Merchants. A. .
Listovvel's (Lord) Fishery — Certiorari .
Little V. Donnelly — Sp. Ca

— R. V. — Sum. J. Acts ....

— Bytham v. Somerby — Settlement
Littlecliild, R. v. — Excise ....
Liverpool Gas Co. v. Everton Overseers — Appeal

— R. V. — Lunatic Paupers . .

— R. V. — Highways ....

— Recorder, R. v. — Appeal

— — R. V. — Lunatic Paupers .

— Mayor, R. v. — Appeal .

— V. The County Justices — Appeal

— Mayor, R. v. — Certiorari

— Recorder, R. v. — Costs .

— — R. V. — Mandamus

— Exchange, R. v. — Poor-Rate .

— Mayor v. Wavertree — Poor-Rate

— (Mayor) r. West Bei'by — Poor-Rate

— R. V. (9 A. & E. 435)— Poor-Rate .

— R. V. (14 East, 256)— Poor-Kate .

— R. V. (7 B. A: C. 61)— Poor-Rate .

— (Overseer) r, Lancaster Justices, Visitors,
Llalleched, R. v. — Settlement
Llanbedergoch, R. v. — Settlement
Llandrinio, R. v. — Sp. Ca. ....
Llanelly, R. v. (17 Q. B. 40)— Settlement .

— R. r. (20 L. J. M. C. 179)— Settlement
Llanfihangel-Abercowin, R. v. — Sp. Ca
Llangannor, R. v. — Settlement
Llangelly, R. v. — Appeal
Llangenney, R. v. — Mandamus
Llanrhydd, R. v. — Settlement
Lloyd, R. V. — Highways
" Lloyd's, The "—Merchant S. A.
Lockerley, R. v. — Settlement
Lockwood V. The Att.-Gen. — Excise

— — — Sum. J, Acts

&c.

PAGE

. 175

. 392, 399
130, 134, 142, 149

. 350, 352
. 141
. 282
. 160
, 468
. 371

. 179, 180
. 534
. 540
. 484
. 238

. 128, 142

. 347, 348
. 294
121, 131, 138, 140
. 344
105, 107, 108
. 140
. 181
. 200
. 350
. 423
. 396
. 398
. 396
. 399
. 396
Lunatic Paupers 346
. 464
. 492
. 526
. 461
. 453

. 626, 530
. 476

. 150, 151
. 354
. 466
. 306
. 371
. 489
. 235
. 541

xlii

TABLE OF CASES.

Lodge, Re — Constable . .
London, R. v. — Appeal

— V. King's Norton — Poor-Rate

— Dock Co. V. St. Paul, Shad well— Arbitration

— (Mayor), R. v. — Poor-Rate

— — V. St. Andrew's, Holborn — Poor-Rate

— & N. W. Railway v. Harbor ne — Poor-Rate

— — R. V. — Borough-Rate

— — R. V. — Poor-Rate

— — R. r.— Sp. Ca. .

— & S. W. Railway Co., R. r.— Poor-Rate

— Tramways Co. v. Lambeth — Poor-Rate
Londonthorpe, R. v. — Settlement.
Long Bennington, R. v. — Settlement

— R. r.— Costs

— R. V. — Highways
Longbottom, R. v. — Sp. Ca.
Long Buckley, R. v. — Evidence .

— Whittington, R. v. — Settlement
Longwood V. Halifax — Appeal

— R. r.— Poor-Rate
Looker v. Halcombe — Alehouse .
Lord V. Standish — Arbitration
Lordsmere, R. v. — Highways
Lovett, R. V. — Excise .
Lowe, Ex parte — Affiliation .

— Ex parte — Appeal

— R. V. — Apprentice

— R. v. — Time
Lower Mitton, R. r. — Poor-Rate .
Lubbenham, R. v. — Settlement .
Lumsdaine, R. v. — Appeal

— R. V. — Poor-Rate
Luton, B. H. V. Davies — Mandamus
Lydiard St. Lawrence — Settlement
Lydlinch, R. v. — Settlement
Lyne r. Leonard — Fisheries .
Lyon, R. v. — Highways
Lyth, R. V. — Sp. Ca. .

PAGE

. 194
105, 155
. 409
. 163
. 403
. 405
. 409
. 172
. 409
521, 527
389, 411, 413
410
487
478
202
321
533
218
479
121
398, 415
76
163
307
235
45
125
158
555
411
471
118
388
351
468
476
255, 257
. 307
525, 529

Maceeth v. Ashley — Alehouse
Macclesfield, R. r. — Appeal .

— R. V. — Evidence

— R r. — Settlement

81
147
226
493

TABLE OF CASES.

xliii

48

Maccle^eld, R. v. — Sp. Ca. .
Machen, R. r. — Affiliation .
Maidstone, R. v. — Settlement ..... 462,

— Guardians, R. v. — Settlement
Maldon v. Kingston — Poor-Rate, S. C, R. v. Maldon . 382,

— Overseers, R. r. — County Rates
Malendine r. Hudson — Settlement
Mai kin v. YickerstafF — Poor-Rate ....
Malton, B. H. v. Malton Manure Co. — Highways .

_ _ —Pub. H. Act

Manhy r. Carter — Evidence .....
Manchester, R. v. — Certiorari ....

— R. V. — Lunatic Paupers . .

— R. V. — Poor-Rate ....

— S. Junction and Altrincham Railway Co., R. r

Rate

— R. V. (4 B. & A. 504)— Settlement ,

— R. V. (17 Q. B. 46)— Settlemtnt

— R. r. (26 L. J. M. C. 1)— Setilement

— Sheffield and Lincolnshire Ry. Co. v. Glandford and

Unions — Poor-Rate

— V. St. Pancras — Settlement
Mann, R. i\ (or K. r. Exeter) — Alehouse
Mansfield, R. v. — Affiliation .
jMargam, R. r. — Appeal

Marine Investment Co. v. Haviside — Evidence
Marman's Trust, In re — Lunatic Pauper
Marriot, R. v, — Poor-Rate .
Marsh, R. r. — Sum. J. Acts .
^Marshall, R. v. — A})prentice .

— V. Fox — Alehouse .

— r. Murgatroyd — Affiliation

— V. Pitman — Appeal
Martin, R. r. — Affiliation

— r. Pridger — Excise .
Martin-cum-Grafton, R. r. — Sp. Ca.
Martley, R. v. — Settlement .
Marwood, R. r. — Settlement

Marylebone Vestry %\ Post-Master General — Poor-Rate
Mason, R. r. — Alehouse

— R. V. — Gaming
Massey v. Johnson — Sum. J. Acts *
Mast, R. r. — Poor-Rate
Mattersey, R, v. — Sp. Ca.
Mattingle}'-, R. v. — Settlement
Maude, R. v. — Rogues, &c. .

PAGE

, 529

40, 47

2, 487, 496

462

424, 432, 434
. 205
. 483
. 380
. 318
. 507
. 225
. 180
. 347
398, 400

— Poor-

. 410
. 455
. 458
. 458
Brisra

l-lD

406, 409
473, 486
64
35
110
219
339
331
536
158
78
31
118
32
238
527, 528
476, 481
475
394
57
268
541
385
526
476
515

xliv

TABLE OF CASES.

Maule, E. v. — Appeal ....

— R. V. — Highwa3's

— K. V. — Companies Consol. Cls. Act
May, R. v. — Affiliation

— Ex parte — Appeal
Mayo County, In, re — Certiorari .
McCaim, R. v. — Poor-Rate .
McCannon v. Sinclair — Poor-Rate
McDonnell v. Jopling — Merchant S. A.
McGahey r. Alston — Evidence
Medway Union v. Maidstone Union

— — R. V. — Lunatic Paupers .
Meers v. Lord Stourton — Evidence
Melkridge, R. r. — Settlement
Mellor, R. r. — Highways
Melsonby, R. v. — Settlement
JMelvilleV De WolfFe— Merch. S. A. .
Mercer v, Woodgate — Highways .
Merionethshire, R. v. — Appeal

— R. r. — Bridges

— R. V. — Costs
Merricks v. Cadwallader — Fisheries
Mersey Docks and Harbour Co. v. Cameron — Appeal

— — V. — — Poor-Rate

— — V. Liverpool — Poor-Rate

— Docks and Harbour Board v, Birkenhead— Poor
Mersley, R. v. — Sp. Ca. ....
Merthyr Tydvil, R. r.— Settlement
Metropolitan B. "W. v. West Ham — Poor-Rate

— Dist. Ry., R. r.— Poor-Rate .
Meyer, R. r.— Pub. H. Act .
Michaelstone Vedoes — Certiorari .

— — R. r.— Sp. Ca.
Middlesex, R. v. (17 L. J. M. C. Ill)— Affiliation

— R. V, (3 B. & Ad. 201)— Alehouse

— R. V. {ih., 938)— Alehouse .

— R. V. (2 Q. B. D. 516)— Alehouse

— R. V. (4 Q. B. 807)— Apprentice .

— R. V. (3 B. & Aid. 298)— Appeal .

— R. V. (2 N. S. C. 73)— Appeal .

— R. V. (2 Q. B. D. 516)— Appeal .

— R. V. (20 L. J. M. C. 42) -Certiorari

— R. V. (40 L. J. M. C. 109)— (S.C. eo nom.

Fulham Union (L. R. 5 Q. B. D

— R. V. (11 A. & E. 809)— Appeal .

— R. V. (40 L. J. M. C. 109)— Arbitration

PAGE

120, 121
. 319
. 191
38, 39, 40
. 118
. 180
. 400

381, 390
. 365

218, 226
. 30
. 343
. 221
. 490
. 307
. 493
. 366
. 307

143, 153
. 177
. 200
. 250
. 118
. 387

391, 417

-Rate . .417

. 626

. 490

. 423

. 405

. 512

. 181

. 523

45, 46

. 62

. 68

. 65

. 105

. 109

. 125

121, 154, 155

. 132

W. Lond. Ry. v.

861) Appeal . 154

. 118, 121, 123

. 163, 164

TABLE OF CASES.

xlv

Middlesex, R. v.

— R. V.

— R. r.

— R. V.

— R. r.

— R. V.

— R. V.

— R. r.

— R. V.

— R. V.

— R. V.

— R. V.

— R. V.

8 Dowl. & R. 117)— Certiorari
5 A. & E. 626)— Certiorari

5 B. & Ad. 1113)— Court .
2 Q. B. D. 516)— Court .

— — Mandamus

8 Dowl. 103)— Poor- liate .
11 A. & E. 809)— Settlemeut
2 Q. B. D. 516)— Settlemeut
8 D. & R. 117)— Sp. Ca. .
2 Q. B. D. 516)— Sp. Ck .
14 L. J. M. C. 139)— Time
D. & L. 580)— Time .

6 M. & S. 279)— Time
Middleton-iu-Teesdaie, R. v. — Appeal .
Middleton Nuisance Removal Comnjissioners, R. v

— R. r.— Time ....
Alidgeley, R. r. — Highways ....
Midland Ry. Co. v. Badgeworth, R. v. — Poor- Rate
Midville, R. v. — Highways ....
Migotti V. Colville — Time ....
Milbank, R. r. — Poor-Rate ....
Mile Eud Old Town, R. v.— Poor-Rate .
Mill V. Hawker — Highways ....
Milledge, R. r.— Pub. H. Act . . .
Miller's case — Evidence ....

Millidge, R. v. — Court

Millwfird V. CafRn — Appeal ....

— V. — — Poor-Rate
Milner, R. v. — Affiliation ....
Milton, R. r. — Poor-Rate ....
Milverton, R. v. — Appeal ....

— R. r. — Highways
Minchiu-Hamptou, R. r. — Settlement .
Minster, R. v. — Settlement ....
Mirfield, R. r. — Poor-Rate ....
Mitcham, R. r. — Settlement.

Mitchel V. Foster

^litchell V. Fordham — Poor-Rate .

— r. Foster — Appeal ....

— V. Foster — Time ....
Mitton r. Troke — Baker ....
Mogg r. Yatton — Poor-Rate ....
Monckton v. Attorney-General — Evidence

— — — Settlement .
Monke, R. v. — Borough Rate

— V. Hilton — Rogues, &c. , ,

-Appeal

PAQE

181, 182
. 184
. 18
5
. 351
. 438
. 466
. 470
. 523
. 527
. 556
. 556
. 558
. 137
107, 112
. 559
. 319
. 410
. 293
. 556
. 383
406, 410, 412, 416
. 282
. 512
. 229
. 678
110, 118
383, 438
40
401, 411
125

314, 318, 323, 328
489
490
386, 422, 423
501
34
379
125
556
164
392
224
470
171
514

xlvi

TABLE OF CASES.

Monley, R. r. — Excise .
Monraouthshiie, R. v. — Appeal

— — Mandamus
Montgomery, R. r. — Costs .
Montgomeryshire, R. v. (50 L. J. ]\[.

— R. r. (51 L. J. M.

— R. V. — Fisheries

— R. V. (50 L. J. M. C,

— R. r. — Mandamus

— R. V. — Sum. J. Acts
Moody V. Rowill — Evidence .
Morant r. Taylor — Betting Houses
Morgan v. Brown — Sum. J. Acts .

— V. Edwards — Sp. Ca.

— Ex parte — Landlord and Tenant

— V. Parry — Poor- Rate .
Moris, R. V. — Certiorari
Morley r. Greenhalgh — Animals .
Morlock, R. r. — Costs .
Morrant v. Chamberlain — Highways
Morris r. Davies— Affiliation .

. — r. Hanser — Evidence .

Morrish, R. ?•. — Poor- Rate .

Morrison, R. v. — Poor-Rate .

Mortimer r. McCullum — Evidence

ISlorton, R. r — Evidence

Moseley, R. ?•.— Sp. Ca.

Moulton r. Wilby — Fisheries

Mullins r. Collins — Alehouse

Murj)hy v. Manning — Animals

Mussitt r. Burch — Fisheries .

Musson, R. V. — Poor-Rate

Myers, R. r. — Court

^lynton v. Stony Stratford — Settlement

Myott, R. r. — Affiliation

Mytton V. Thombury — Poor-Rate .

PAGE

. 235

142, 145, 146, 147, 154

351, 352, 354

. 201

95)— Alehouse .... 73
95)— Appeal . . . 128, 153

258, 262
95)— Affiliation ... 48

. 352
537, 542, 544, 549, 550, 569
. 231
. 169
. 541
. 532
. 333
. 430
. 184
. 91
. 202
. 307
36
. 219
. 391
. 394
. 219
217, 218
. 519
. 255
75, 76, 77
. 92
. 249
. 381
6
. 483
. 32
. 380

Nailand, R. r. — Sp. Ca. ,.
Narberth, North, R. v. — Poor-Rate
— — R. r.— Sp. Ca. .

Natland, R. v. — Settlement .
Neath Canal Co., R. r. — Poor-Rate
Nelson (Benjamin), R. r. — Sum. J. Acts
Nether Heyford, R. v. — Sp. Ca. .

. 519

. 422

526, 530

. 478

. 411

. 535

. 530

TABLE OF CASES.

xlvii

Newman v.
— r.

Nether Knutsford, E. v. — Apprentice
Netherthorn, R. v. — Highways .
Newark r. Glanford Brigg — Settlement
Newchurch, R. v. — Settlement
Newclmrty, R. v. — Lunatic Pauper
Newcombe, R. r.— Appeal .
— R. v. — Poor- Rate

Baker— Sp. Ca. .

Bendice — Excise

Bendsysche — Excise .

Bendyshe — Sum. J. Acts

Earl Hardwick — Excise
Newmarket Ky. Co. r. Cambridge Overseers — Poor-
— — R. V. — Highways .

_ — R. f.— Sp. Ca.

Newport Bridge, R. v. — Bridges .

— Dock Co.. V. Newport B. H. — Poor- Rate

— Union Guard. R. v. — Appeal .

— — R. V. — Lunatic Pauper
New River Co., R. r. — Poor-Rate .
New Sarum, R. r. — Bridges .
Newton, R. v. — Apprentice .

— R. V. — Sp. Ca.

— Ferrers, R. v. — Certiorari
Nichols, R. r. — A])peal

— V. Walker — Appeal
NichoUs, R. r.— Certiorari .

— r. Dowding— Evidence .

— r. Hull — Animals.

— V. Parker — Poor-Rate .
Nicholson, R. v. — Poor-Rate
Nightingale r. Marshall — Poor-Rate
Nohns, Ex jift-rte —Certiorari
Norfolk, R. V. — Appeal

— R. V. — Highways

— R. V. — Mandamus

— R. V. — Settlement
North, R. V. — Excise .

— R. V. — Sum. J. Acts

— Amey, R. r. — Settlement .
North Bovey, R. v. — Appeal

— Featherton, R. v. — Settlement .

— Lond. Ry. v. St. Pancras — Poor-Rate
Northampton, R. v. — Sp. Ca.
Northowram, R. v. — Apprentice .
North Petherton — Evidence .

PAGK

. 158
. 294
. 460
. 458
. 338
110, 118
381, 384
. 525
. 235
. 235
. 541
. 235
Rate . . .387
. 310, 311, 319
. 518
175, 176
. 417
. 132
344, 345, 346
. 413
173, 174
. 159
. 519
. 185
. Ill
. 118
. 185
. 228
. 97
. 382
. 401
. 387
. 185
. 143
. 308
550, 351, 352, 353
466, 467
. 235
. 541
. 481
. 136
. 482
. 410
. 619
. 159
. 224

xlviii

TABLE OF CASES.

North Petherton, E. v. — Settlement

— and South Shields Ferry Co., R. v. — Poor-Rate

— Staffordshire Ry. Co., R. v. — Poor-Rate

— Wheald Bassett, R. v. — Settlement
Norwich Corporation, R. v. — Settlement

— R. V. — Poor-Rate ....

— Walton Road, R. v. — Highwaj'^s
Nottingham, R. v. — Api»eal ....

— R. V. — Costs . .

— R. V. — County Rates

— Union v. Tomkinson — Affiliation

— Waterworks, R. v. — Mandamus
Nunn, R. v. — Affiliation ....

— I7i re — Sum. J. Acts ....
Nympsfield v. Woodchester — Settlement

PAGE

471

402
407
480
491
434
310
120, 153
198, 201
208
36
350
45
541
482

Oakhampton, R. v. — Settlement,
Oakley, R. v. — Settlement .
Oastler and New, R. v. — Lunatic Paup
O'Connor v. Bradshaw — Gaming .
Odell, R. V. — Highways
Offchurch, R. v. — Settlement
Okeford Fitzpaine, R. v. — Settlement
Old Alresford, R. v. — Settlement .
Oldh.im Mayor, R. v. — Poor-Rate

— V. Ramsden — Betting Houses
Olding V. Wild — Fisheries .
Oldland, R. v, — Settlement .
Olney, R. v. — Settlement

Onley v. Gee — Betting Houses
Ormerod v. Chad wick — Highways
Ouley V. Gee — Sum. J. Acts
Oundle, R. v. — Appeal
Over, R. r'.— Costs
Overton v. Hunter — Alehouse
Owersbj'-le-Moor, R. v. — Sp. Ca. .
Oxford Canal Co., R. v. — Poor-Rate

— St. Ebbe, R. v.— Settlement

— University and City of Oxford I
Oxfordshire, R. v. — Affiliation

— R. V. — Alehouse

— R. V. — Appeal .

— R. v. — Bridges .

— R. V. — Poor-Rate

ers

^oor,

In re

. 501
. 477

. . .349
. 269
. 330

. 474, 475, 481
. 477
. 489
. 399
, 168
. 255
. 456
. 476
. 169
. 302, 431
. 540
. 142
. 201
. 78, 81, 82
. 526
. 411
. 461
—Poor-Rate . . 396
. 45
. 69
121, 133, 142, 149
. 175
. 113

TABLE OF CASES.

xlix

PadstoXv, R. r.— Settlement
Padwick, R. r. — Costs
Paget t\ Foley — Highways .
— — — Lunatic Paviper

Paine, Ex parte — Sum. J. Acts

— R. V. — Sura. J. Acts .
Painswick, R. v. — Settlement
Pakefield, R. v. — Settlement
Palmer v. Rouse— Merchant S. A.

— t\ Thatcher — Alehouse

— R. V. — Poor-Rate
Palmesgate v. West Ham — Lunatic Pauper
Paucras v. Rumbolt — Settlement
Parbury, R. r. — Affiliation .
Parrott, R. v. — Excise

— R. V. — Poor-Rate
Parry v. Duncan — Landlord and Tenant
Parsons v. The Birmingham Dairy Co. — Adulteration
Pashler v. Stevenitt — Adulteration
Patten v. Rhymer — Alehouse
Paulett, R. i>. — Alehouse
Pawlett, R. V. — Appeal

— R. V. — Mandamus .
Payne, R. v. — Excise .
Paynter v, R. — Poor-Rate
Peache v. Coleman — Alehouse
Peacock, R. v. — Appeal
Pearcy, R. v. — Affiliation
"Pearle, The,"— Merchant S. A.
Pearson r, Heyes — Affiliation
Peck, R. V. — Apprentice
Peckham, R. v. — Sum. J. Acts
Peerless, In re — Affiliation .
Pegge V. Lampeter Union — Lunatic Pauper
Pellew V. Tlie Hundred of Wanford — Appeal
Pellow, Ex parte — Fines, &c.
Pemberton, R. v. — Lunatic Pauper
Pembleton, R. v. — Sum. J. Acts .
Pembrokeshire, R. v. — Sp. Ca.
Pendrill r. Pendrill — Evidence
Pennegoes v. Machynlleth — Certiorari
Penny r. Watts — Evidence .
Penryn, R. v. — Settlement .
Percival v. Sanson — Evidence
Percy v. Ashford Union — Poor-Rate
Perday,. R. v. — Appeaj .

PAOK

. 490

. 200

324, 325

. 344

. 541

. 541

479,' 480

. 493

. 373

. 58

. 411

. 339

. 466

41, 42

. 235

385, 421

. 333

. 26

. 24

. 77

65, 69

120, 142

352, 353

. 235

381, 383

85

123

37, 41

364

44

161

540

32

349

125

248

336

536

521

223

183

232

498

225

401

114

TABLE OF CASES.

PAGE

Perhaiii, E. v. — Sum. J. Acts 540

Perkins R v,. — Sp. Ca. 530

Peterborougli, R. v. — Appeal 127, 141

— R. V. — Mandamus 350

Peters r. Cowie — Rogues, &c. 513

— r. Sheam— Sp. Ca 534

Petherick v. Serjeant — Alehouse 81

Petherton, K. r. — Settlement ........ 471

P'etrie v. Nuttall— Evidence 223

— E. r.— Highways 306

Phillips r. Eames — Evidence 231

— r. Coll— Evidence 223

— R. r.— Costs 203

— R. r'.— Highways 318, 319, 320

— R. v.— Pub. H. Act 507

— R. r. — Sp. Ca. 521

Pliilipson ?'. Chase — Evidence ........ 219

Pickering Lythe East High. B. v. Bany— Highways .... 331

— R. V. — Settlement 492, 502

Pickford, R. r'.— Affiliation . . 32, 39

Pid(llehinton, R. v. — Evidence 207

Piddletrenthide, R. v. — Settlement . 489

Pike V. Rochester — Fisheries ........ 256

Pilgrim, R. t?.— Alehouse . , . . . . . , 50, 56, 65

Pilkington, R. v. — Adulteration 23, 25

— R. t\— Sp. Ca 520, 527, 530

Pirn V. Currell — Evidence 223

Pimlico Tramway Co. v, Greenwich— Poor-Eate ..... 410

Pitts V. Miller — Animals 93

Pixley, R. v. — Settlement 484

Plaxton V. Dure — Evidence 223

Plowes V. Bossey — -Affiliation ........ 36

Pocock, R. V. — Apj^eal Ill

— R. r.— Time . . • 557

!Poleshill, R. t\— Poor- Rate 391

Polini r. Gray — Evidence . . . . . . . . . 225

Pomfret, Earl, R. r.— Poor-Eate 419

Ponsford, R. v. — Mandamus 350

Ponsonby, Lady Emily, R. r.— Poor-Eate 400

Pontefract, Ex parte — Settlement 467

Poole V. Huskinson — Highways ........ 306

— (Recorder), R. v. — Appeal ........ 114

Poor Law Commissioners r. Cambridge Union — Poor-Rate . . . 383

Pope V. Tearle — Adulteration 23

— — Alehouse 85

Post-Master General, R. V. — Poor-Rate. ...... 399

TABLE OF CASES.

li

Postmore, Earl, E. r. — Poor- Rate
Pott Sprigley, R. r. — Settlement .
Potts V. Cambridge — Affiliation .
Powell V. Knights — Animals
Prangley, K. v. — Appeal
Pratt, K V. — Costs
Preston v. Buckler — Alehouse

— R. V. — Settlement .

— R. V. — Sp. Ca,
Preston-on-the-Hill, R. v. — Sp. Ca.

— — R. V. — Appeal
Price, R. v.— Pub. H. Act .

— R, 11. — Sum. J. Acts .
Pridgeon, R. v. — Affiliation .
Prince Edward v. Trevellick — Merchant
Purdey, R. v. — Baker .

— R. V. — Costs .
Purkis V. Huxtable — Alehouse

S. A

PAGE

. 411

. 461
31, 32
. 93
. 125
. 204
. .50
. 457
526
. 520
. 154
. 512
536, 542
. 29
. 364
. 165
. 199
. 76

Rabbits, R. v. — Landlord and Tenant
Race V. Ward — Commons Inclosure
Radford v. Mcintosh — Evidence .
Radnorshire, R. v. — Sum. J. Acts
Raffles, R. v. — Alehouse

— R. v.— Sp. Ca. .
Rafford, R. v. — Settlement .
Ragley, R. v. — Highways
Rainham, R. v. — Settlement

— R. -?;.— Sp. Ca.
Ramsgate, R. v. — Settlement
Rand v. Vaughan — Landlord and Tenant

— R. V. — Court
Ratcliff, R. r. — Settlement .
Rattislaw, R. r. — Certiorari .
Ravenstone, R. v. — Affiliation ^
Eawden, R. v. — Settlement .
Rawlence v. Hursley — Poor-Rate
Rawnsley v. Hutchinson — Appeal

_ _ —Court

Rawson v. Haigh — Evidence .
Read, R. v, — Affiliation

— R. V. — Poor-Rate
Reading, R. r. — Appeal
Redgate v. Haynes — Alehouse
Jieece v-. Milkr — Fisheries .

333

190
226
536
59
525
454
294
501

525, 526, 529
491
333
o

478

184

47, 48

491

432

143

18

222

41

384

144

75, 77

250, 254

c 2

lii

TABLE OF CASES.

llegent's Canal Cq. v. Hemel Hempstead — Poor- Rate

— — V. Hendon — Poor- Rate .

— — V. St. Pancras — Poor-Rate
Relest, R. v. — Poor-Rate
Rhyinuey Ry. Co., R. i'. — Poor-Rate
Ribchester, R. v. — Settjement
Ricardo v. Maidenhead . Local Board — Appeal

— V. Maidenhead L. B. H. — Animals
Rice, R. V. — Alehouse .
Richardson v. Lambriger — Settlement
Richmond, R. v. — Appeal

— R. r. — Mandamus

— R. V. — Settlement
Riddle v. Spear — Pub. H. Act
Ridout's Trust, loi He — Affiliation.
Rigby V. Connel — Trades Union
Riley, R. v. — Evidence
Ringstead, R. v. — Poor-Rate.

— R. V. — Settlement
Rish worth, R. v. — Evidence .

— R. V. — Settlement
Road, R. -y.— Sp. Ca. .
Roads V. Trumpington — Poor-Rate
Roberts v. Aylesbury — Poor-Rate

— V. Carr — Highways .

— V. Egerton — Adulteration

— — — Alehouse

— V. Humphreys — Alehouse

— V. Hurst — Highways

— V. Stacey — Appeal .
Robins, Ex x>ctr{e — Mandamus

— V. Jones — Bridges .
Robinson v. ClifF — Baker

— V. Cliffe — Adulteration

— R. V. — Appeal

— R. V. — Sum. J. Acts

— V. Waddington — Appeal
Rochdale Corporation v. Lancashire — Highways

— Waterworks Co., R. v. — Poor-Rate
Rochester (Bishop), R. v. — Poor-Rate

— (Dean), R. v. — Certiorari

— — R. V. — Court .
Roe V. Power — Settlement .
Rogers v. Jones — Sum. J. Acts

— V. St. Germains — Poor-Rate
Rogier, R. r. — Gaming

PAGE

. 412

. 412

. 412

. 403
386, 392, 393, 409

. 468

. 112

, 93

. 76

. 491

. 122

. 354

. 466

. 509

. 26

. 561

. 230

. 379
480, 499

. 224

. 470

. 530

. 392
391, 401

. 307
23, 25

. 85
70, 83

. 307

. 125

. 350

. 173

, 164

. 21

. 125

. 536

. 125

. 304

. 391

, 419

. 183
5

. 480

. 541

. 393

. 268

TABLE OF CASES.

liii

Rollett, R. V. — Highways

— R. V. (S. C. Rollett V. Corringham) — Highways
Rolls V. Gills— Poor-Kate .

— V. "White —Fisheries
Rook V. Hopley — Adulteration
Rookwood, R. v. — Evidence .
Rose, R. V. — Affiliation

— R. V. — Certiorari . . .

— R. y.— Pub. H. Act .

— V. Rose — Affiliation . . . -
Rosenthal, R. v. — Theatre . . .
Rosliston, R. v. — Sp. Ca.
Rowberry v. Morgan — Appeal
Rowell, R. V. — Alehouse . . .

Roxby, R. V. — Sp. Ca

Roxley, R. v. — Sp. Ca.

Rugby Charity v. ileryweather — Highways

Rugeley, R. v. — Settlement .

Rush V. Smith — Evidence

Rushworth, Ux parte — Alehouse .

Russell, R. V. — Court ....

Ruther v. Harris — Fisheries . . .

Ruyton of the Eleven Towns, R. v. — Mandamus

Ryde v. Gyde — Evidence

Ryslip V. Harrow — Settlement ,

Saffron Hill, R. v. — Evidence .
— R. v.— Sp. Ca. .

Sainsbury, R, v. — Alehouse .

— R. V. — Court
Salisbury, Marquis, R. v. — Poor-Rate .

— — R. v.— Sp. Ca.
Salkeld, R. v. — Settlement .
Salop, R. V. ; also eo nom. R. v. Shropshire (50 L. J. M

Q. B. D. 669) 128, lU, 165, 2/6, 333, 542, 544, 545, 546,

548, 558, 561, 569
— R. V. (2 B. & A. 269)— Appeal . . . . . . .141

PAOB

. 295

. 295

. 379

. 255

. 24

. 232
33, 37, 40

. 185

. 511

. 33

554

. 529

. 123

55

. 526

526, 527

. 307

. 482

. 230

. 64

15

252, 254, 256
151, 152, 354
222
481

218
528
52
16
403
528
487

C. 72 ; 6

— R. V. (2 B. & Ad. 145)— Appeal

— . R. i;. (4 B. & Aid. 626)— Appeal -

— R. V. (4 E. & B. 257) -Appeal .

— R. V. (4 E. & B. 257)-Costs .

— R. V. (2 B. & A. 694)— Mandamus

— R. V. (8 A. & E 173)— Poor-Rate

— R. V. (2 B. & Ad. 145)— Time .

— R. V. (13 East. 95)— Sp. Ca.
Salter's Load Sluice Commissioners, R. v.-

-Poor-Rate

111
130
131, 140
200
252
431
557
521
396

liv

TABLE OF CASES.

Sanders, R. i?.— Highways .

— R. V. — Highways ,

— V. Vanzeller — Certiorari .

— — — Sp. Ca. .
Sandys v. Small — Adulteration .
Saunders, R. v, — County Rates .
Saye and Sele Peerage — Alfiliation
Sayer v. Kitchen — Evidence .
Scadding v. Lorant — Poor- Rate
Scaife, R. v. — Sp. Ca. .
Scanimonden, R. v. — Settlement .
Scarborough, Mayor v. Scarborough Union —Pub.
•'Sceptre, The "—Merchant S. A.
Schlesinger, R. v. — Evidence
Sculcoates, R. v. — Settlement
Seacroft, R. r.— Settlement .

— R. r.— Sp. Ca.
Sedgley, R. v.— Poor-Rate .
Seend, R. v. — Settlement
Selwood V. Mount — Costs

— — — Highways
Sevenoaks, R. v. — Appeal .

— R, V, — Certiorari
Severn, R. v. — Mandamus .
Sewell V. Taylor — Rogiies, &c.
Shaftesbury v. Digby — Evidence .
Sharp V. Aspinall
Sharpley v. Mablethoi*pe — Poor- Rate

— R. V. — Poor-Rate .
Sharpness, R, v. — Costs
Sliavington, R. v. — Settlement
Sheard, R. v. — Appeal
Shedding v. Patrick — Certiorari .
Shee, Sir M. A., R. v. — Poor-Rate
Sheepshead, R. v. — Apprentice .
Sheffield, R. v. — Highways .

— R. V. — Settlement

— Gas Light Co., R. v. — Poor-Rate

— Ry. Co., R. V. — Appeal.

— — R. V. — Certiorari

— _ R. v.—S\x Ca,
Shenard, R. v. — Poor-Rate .
Shepherd v. Bradford Churchwardens — Poor-Rate
Sheppard, R. v. — HighAvays
Sherford, R. v. — Poor-Rate .
Shiles, R. v. — Highways

H. Act

PAGB

. 796

. 296

. 181

. 523

. 25

. 212

. 35

. 220

. 383

. 521

474, 476

. 507

. 359

. 229

. 464

. 489

. 527

. 418

. 461

. 202

. 321

127, 141

. 185

. 350

. 516

. 221

. 32

. 380

. 380

. 199

. 457

134, 136

. 182

. 400

. 160

. 293

. 481

. 415

. 155

. 182

. 520

. 410

397, 400

314, 323

. 404

. 320

TABLE OF CASES.

Iv

Shiles, R. v.— Sp. Ca,
Shingle, R. v. — Poor- Rate .
Shipperbottom, R. v. — Affiliation .
Shoreditch, St. Leonard's, R. v. — Settlement
Short V. Leigh— Evidence .
Shrewsbury, R. v. — Settlement .

— & Hereford Co., R. v. — Costs

— — Ry., R. V. — Settlement

— (Recorder), R. v. — Appeal

— — R. V. — Settlement

— — — Costs .

— — — Lunatic Pauper

— — — Settlement .

— — —Time .
Shropshire (7 Ea. 549) — Appeal .

— R. V. (2 Q. B. 85)— Appeal

— R. V. (8 A. & E. 173)— Appeal

— R. V. — Court

— R. V. — Excise .

— R. V. — Lunatic Paupers
Sibbald v. Roderick — Appeal

— — — Poor-Rate

Sideways v. Dyson — Evidence
Silchester, R. v. — Settlement
SiUifant, R. v. — Appeal

— R. V. — Poor-Rate .
Silvester, R. v. — Alehouse .
Simkin, Ex parte — Appeal .

— — —Time
Simmons — Affiliation .
Simpson, R. v. — Excise
Singer Manufacturing Co. v. Clark — Pawnbrokers
Skiffiugton, R. v. — Apprentice
Skinn, R. v. — Costs . ,
Skircoat, R. v. — Appeal.

— R. V. — Mandamus .
Slade, R. v. — Rogues, &c.
Slawstone, R. v. — Appeal

— R. V. — Settlement
Small V. Bickley— Pub. H. Act
Smith V. Birmingham — Poor-Rate

— V. Roach — Sp. Ca.

— v. Smith — Evidence .

— V. St. Michael, Cambridge — Poor-Rate

— V. Waghorne — Pub. H. Act

— and Son v. Lambeth Ass. Com. — Poor-Rate

PAGE

. 521

. 385
37, 41
. 459
. 223
. 465
. 202
. 467
. 110
. 465
. 200
. 345
. 467
. 557
145, 147
138, 139
. 125
. 12
. 236
. 344
. 118
. 384
. 220
482, 483
115, 134
. 384
. 65
122, 123
. 556
. 31
. 234
. 375
. 158
. 202
17, 145, 150
. 354
. 514
. 123
. 466
. 510
397, 399
. 527
. 218
. 400
. 506
. 391

Ivi

TABLE OF CASES.

Viiwi

)er

.Smith, E. V, — Affiliation .

— K. r. — Alehouse

— K, v. — Appeal . , ,

— R. v. — Baker , . ,

— B. V. — Costs

— E. V. — Court

— E. i\ — Excise .

— E. r. — Lunatic Pauper

— E. V. — Poor-Eate
■ — E. V. — Eogues, &c. .

Snape, E. v. — Sp. Ca. .
Snowden, E. v. — Poor-Eate .
Solly, E. V. — Certiorari
Soraerby, R. v. — Settlement .
Somerset, R. v. — Appeal

— R. V. — Bridges

— E. V. — Certiorari .

— Clerk of the Peace ?•. Shipham — Lunati
Souch V. East London Railway Co. — ^Highways
Southampton, R. v. — Appeal

— Dock Co., R. V. — Certiorari .

— — R. V. — Poor-Eate .

— Gas Light Co. v. Southanijiton Union — Arbitration

— — V. Southampton Union — Costs
Southeron r. Scott — Affiliation
South Holland Drainage Committee — Certiorari

— Sydenham v. Lamerton — Settlement .

— Lynn, R. v. — Settlement .

— "Western Railway Co., R. v. — Poor-Rate
Souton, R. r. — Settlement .
Sowton, R. «7.— Affiliation
Spargo V. Brown — Evidence .
Sparrow, R. v. — Certiorari .
Spear v. Bodmin Union — Poor-Rate
Spenceley v. Robinson — Time
Spenchley v. Robinson — Appeal .
Spitalfields v. St. Andrew's, Holborn — Settlement
Sprout, E. V. — Sum. J. Acts
St. Albans, E. v. — Appeal .

— ■ R. V. — Certiorari .

— R. V. — Highways

— R. v.— Pub. H. Act .

— R. r.— Sp. Ca. .
•* St. Andalusia, The "—Merchant S. A
St. Andrew, Cambridge, R. v. — Sp. Ca.

— the Great, E. r. — Sp. Ca. ,

PAGE

29, 32
59, 60
. 114
. 165
. 199
. 15
. 237
. 336

397, 399
. 518

527, 529
. 403
. 184
. 468
. 131
. 176
. 182

336, 338
. 292

125, 127
. 186
. 407
. 164
. 202
42, 43
. 181
. 479
. 477
91, 405, 407
. 481
. 36
. 223
. 183
. 401
. 555
. 125
. 468
. 536
. 112
. 182
. 299
. 505
. 520
. 358
. 527
. 530

TABtE OF CASES.

Ivii

St. Andrew's, Holborn, v. St. Clements Danes — Appeal

— Worcester, v. Bodenhani — Settlement
" St. Annadale, The "—Merchant S. A.
St. Anne's, Westminster, R. v. — Settlement .
St. Ann's, Blackfriars, R. v. — Lunatic Pauper

— — R. V. — Settlement
St. Austell, R. V. — Poor-Rate
St. Bartholomew's Hospital, R. v. — Poor-Rate
St. Bartholomow-the-Less, R. v. — Sp. Ca.
St. Clements Dane, R. v. — Lunatic Pauper ,

— — R. V. — Settlement .
St. Cuthbert, Wells, R. t-.— Highways .

_ — R. v.— Sp. Ca.

St. Ebbe's, R. v.— Settlement
St. Edmund's, Salisbury, R. v. — Alehouse .

— — R. V. — Appeal

— — R. V. — Highways .

— — R. V. — Lunatic Pauj^er
St. George v. St. Margaret — Affiliation

— Bloomsbury. R. v. — Lunatic Pauper

— Hanover Square, R. v. — Apprentice

— — R. r.— Highways

— — V. Cambridge — Settlement
— • in-the-East, R. r. — Settlement

— South wark, R. v. — Poor-Rate
St. George's Union Committee, R. v. — Poor-Rate
St. Giles V. St. Margaret's — Settlement

— and St. Clements, R. v. — Settlement

— Cambridge — Highways .

— Cripplegate, R. v. — Settlement

— in-the-Fields, R. v. — Settlement .

— (Overseers) — Lunatic Pauper

— R. V. — Settlement
St. Helen's, Abingdon, R, v. — Evidence

— Chemical Works v. St. Helen's Company —
St. Ives, R. V. — Settlement ....
St. James, Clerkenwell, R. v. — Settlement .

— Colchester, R. v. — Certiorari

— Westminster, v. St. Mary, Battersea — Sp. Ca

— — R. V. — Poor-Rate .
St. John V. St. James — Settlement

— Evangelist, R. v. — Sp. Ca.

— Margate, R. v. — Appeal .
St. Katharine Docks, R. v. — Mandamus
St. Lawrence, Ludlow, R. v. — Court .

— — R. V. — Highways

463,

PAGE
154

485
359
484
340
500
420
396
519
340
455
315
626
496
71
138
325
344
36
340
160
294
500
462
396
428
454
486
294
491

486, 494, 501
340, 341
457, 458
. 219

ub.

H. Act

.509
460
491
185
528
434
468
520
137
350
11
325

c 3

Iviii

TABLE OF CASES.

PAGE

St. Lawrence, R. v. — Settlement 501

St. Luke's Hospital, K v. — Poor-Eate . 396

— — R. 1^.— Sp. Ca 519

St. Margaret, R.r. — Apprentice 158

— Leicester — Settlement 478

St. Martin's, Exeter — Apprentice 160

St. Mary, R. -i;.— Settlement 477

— Arches, Exeter — Lunatic Pauper 310, 341

— Bermondsey, R. v. — Apprentice ...... 157

— Beverley — Appeal . . . . . . . .136

— Bredin, R. v. — Settlement 468

— Bury St. Edmunds— Poor- Rate 382

— Islington — Lunatic Pauper ....... 341

— Kallendar, R. -r.— Settlement .... 493, 494, 499

— Lambeth, R. r.-— Settlement 482, 483, 484

— — R. r.— Sp. Ca 529

— Newington, R. v. — Settlement 486, 496

— Nottingham— Costs 202

— Ottery, R. r.— Settlement . . . . . . .464

— Southampton, R. v. — Appeal ...... 132

— Warwick — Evidence . . . . . . . . 224

— . — —Settlement 502

— "VVhitechapel — Certiorari . 184

St. Marylebone, R. v. — Settlement 458

— R. r.— Sp. Ca 526

St. Maurice, R. r. — Lunatic Pauper ....... 348

St. Michael, Beddington, v. Kingston Bowsey — Settlement . . . 484

— Pembroke — Settlement ....... 464

St. Nicholas, Colchester, R. t'.— Settlement . . . . . 493,494

— Leicester, R. v. — Affiliation ...... 41

— — R. v.— Appeal 137

— — R. t'.— Settlement 471, 644

— Rochester, R. v. — Settlement ...... 493

St. Nyotts, R. r.— Settlement 481

*' St. Olaf, The"— Merchants. A 358

St. Olaves v. St. George — Settlement ....... 461

St. Pancras, R. y.— Settlement 497, 499

— Ass. Com., R. t'.— Poor-Rate 391

— R. 2J. —Poor- Rate 410

— R. f.— Settlement 473

St. Paul's, Convent Garden, R. v. — Sp. Ca.. ..... 519

— Exeter, R. v.— Sp. Ca 529

St. Peter, Barton-upon-Humber, R. v. — Appeal .... 107, 138

— Droit wich, R. t\— Sp. Ca 522

— Nancroft, R. v. — Sp. Ca. ....... 526

— York, R. I-.— County Rate 212

TABLE OF CASES.

lix

St. Petrox in Dartmouth, R. v. — Apprentice
St. Sepulchre, Cambridge, R. v. — Settlement
St. Thomas, Devon, R. v. — Settlement

— Hospital V. Lambeth Overseers — Poor

St. Werburgh, Derby, v. Hutchinson — Poor- Rate
Stacey v. Lintall — Affiliation
Stackland, R v. — Settlement
Stafford v. Coney — Highways

— (Marquis), R. v. — Mandamus

— & "Worcester Canal Co., R. v. — Poor-Rate
Staffordshire, R. v. (3 East, 151) — Appeal

— (7 East, 549)— Appeal .

— (4 A. & E. 844)— Appeal

— (2 Dovvl. N.S. 353)— Appeal

— (26 L. J. M. 0. 179)— Appeal

— R. V. — Mandamus

— R. V. — Sp. Ca.

— R. -y.- Time .
Staley v. Castleton — Poor-Rate

— R. V. — Appeal .

— R. V. — Costs

— R. V. — Settlement
Stallingborow v. Huxley — Settlement
Stamper v. Sunderland-on-Sea — Poor-Rate
Stanfield, R. v. — Settlement
Stanhope v. Thorsby — Appeal
Stanlock v. Bampton — Sp. Ca.
Staplegi'ove, R. v. — Settlement
Staples V. Staples — Affiliation
Stapleton, R. v. — Roor-Rate

— Fitzpaine — Appeal

— — — Evidence
Stapylton v. Clough — Evidence
Startup V. Macdonnel — Time
Staunton v. Powell — Poor-Rate
Steel V. Brennan — Appeal .
Stepney Union, R. v. — Lunatic Pauper
Stevens v. Em son — Alehouse

— R. V. — Sum, J. Acts
Stevenson v. Newland — Sum. J. Acts

— R. V. — Excise
Stewart, R. v. — Poor-Rate .
Stinger v. Huddersfield — Alehouse
Stocking V. Collin — Time
Stockland, R. v. — Apprentice
Stockton, R. V. — Settlement

Rate

386,

PAGE

. 158
. 492
. 500
. 396
. 425
. 42
. 476
. 307
. 350
. 411
. Ill
145, 147
115, 119, 133
. 138
153, 154
353, 354
521, 522, 525, 530
. 557
392, 420, 424, 434
. 143
. 200
, 467
. 464
. 428
. 477
. 149
. 519
. 475
. 39
. 390
. 137
. 225
. 223
. 555
420, 424, 434
105, 150
. 345
. 67
. 536
. 536
. 234
399, 400
. 60
. 557
. 160
. 463

]x

TABLE OF CASES.

Stoke, R. V. — Settlement

— Bliss, R. V. — Affiliation

— — R. V. — Appeal.

— — — Costs .
Stoke-npon-Trei:it, R. v. — Sp. Ca.
Stone, R. v. — Settlement
Stonehouse, East, R. v. — Settlement
Stotforcl, R, V. — Settlement .
Stourbridge, R. v. — Evidence

— Union, R. x\ — Settlement
Stowell, Ex parte — Fines, &:c.
Strafford, R. v. — Evidence .
Strand B. Works, R. r. — Poor-Rate
Stratford-upon-Avon, R. r. — Apprentice
Stratton v. Metro. B. W.— Poor-Rate
Struguell, R. v. — Theatre
Sturla r. Freccia — Evidence .
Sutfolk, JJ., R. V. (8 Dowl. 628)— Appeal

— R. V. (4 A. & E. 319)— Appeal
-7- R. V. (2 Q. B. 85)— Appeal

— R. V. (1 B. & A. 640)— Appeal

— R. v. (4 A. & E. 319)— Appeal

— R. r. (4 A. & E. 319)— Court

— R. V. (2 Q. B. 85)— Court

— R. V. (4 D. k L. 628 ; 16 L. J. M. C. 36)

— R. -?;. (4 D. & L. 628 ; 16 L. J. M. C. 36,

— R. V. (5 D. & L. 558)— Court

— R. V. (21 L. J. M. C. 169 ; 18 Q. B. 416)
Suffolk, R. V. (17 L. J. M. C. 143)— Court .

— R. V. (21 L. J. M. C. 169)— Certiorari

— R. v. (5 D. & L. 558)— Highways .

— R. V. (6 B. & C. 110)— Mandamus .

— R. V. (6 M. & S. 58)— Mandamus .

— R. r. (1 Dowl.)-Sp. Ca. .

— R. V. (6 A. & E. 109)— Sp. Ca.

— R. V. (1 D. P. C. 163)— Sp. Ca.
Summers v. Moseley — Evidence .
Sunderland Parish v. Sunder. Union — Poor-Rate 385,
Surrey, JJ., R. v. (1 M. & S. 481)— Appeal .

— R. V. (5 B. & A. 539)— Appeal .

— R. V. (5 A. & E. 701)— Appeal .

— R. t\ (St. Anne, Westminster, v, St. Mar

2 New Sess. Cas. 245) — Appeal

— R. V. (3 Is^ew Sess. Cas. 231)— Appeal
Surrey, R. v. (2 T. R. 504) -Appeal .

—" R. V. (50 L. J. M. C. 10)— Appeal

PAGE

489, 498, 499
. 41
. 153
. 201

520, 529
477, 479

. 461

. 482

. 218

. 459

. 249

. 229

. 382

. 159

. 405

554, 555

. 225

. 145

. 124

. 138

46, 130

124, 132

. 18

. 12

. 18

18

18

5, 8

18

184

288, 290, 291

. 350

. 351

. 521

. 521

521, 525
. 230

390, 407, 421, 430, 443

-Court

S.C.) — Court

Court

128, 142
. 130
113, 132
y, Bcrmondsey),

. 141

. 120

. 106

126, 127, 128, 141, 142

TABLE OF CASES.

Ixi

Surrey, R. p. (3 D. & U 543)— Appeal .

— R. V. (2 New Sess. Cas. 155)— Appeal

— R. V. (31 L. J. M. C. 69)— Appeal .

— R. r. (39 L. J. M. C. 49)— Appeal .

— R. V. (39 L. J. M. C. 49)— Certiorari

— R. V. (21 L. J. M. C. 182)— Certiorari

— R. V. (1 M. & S. 481)— Court .

— R. V. (2 Q. B. 85)— Court

— R. V. (3 L. T. 308)— Highways

— R. V. (39 L. J. M. C. 145 ; L. R. 5 Q. B.

— R. V. (3 N. S. C. 531)— Mandamus .

— R. V. (2 N. S. C. 155)— Time .

— R. V. (5 B. & A. 539)— Time .

— R. V. (50 L. J. M. C. 10)— Time

— R. V. (5 Q. B. 506)— Settlement

— R. r.— Sp. Ca

— Caual Co. v. Hull — Bridges

— — — Highways .
Sussex, JJ., R. V. (7 T. R. 107)- Appeal .

— R. V. (15 E. 206)— Appeal .

— R. V. (30 L. J. M. C. 73)— Appeal

— R. V. (4 B. & S. 966)— Appeal .
Sussex, R. V. (34 L. J. M. C. 69, 75)— Appeal

— R. V. (2 Nol. P. C. 558)— Certiorari .

— R. V. (7 T. R. 107)— Highways.

— R. u (34 L. J. M. C. 69)— Highways

— R. r. (34 L. J. M, C. 69)— Mandanms

— R. V. (34 L. J. M. C. 69)— Settlement

— R. V. (1 M. & S. 734)— Sp. Ca .

— R. r. (2 Nol. 558)— Sp. Ca.

— R. V. (2 Bott. pi. 751)— Sp. Ca.

— R. V. (15 East 206)— Time

— R. V. (34 L. J. M. C. 69)— Time
Sutton Coldfield, R. v. — Appeal .

— Colefield, R. v. — Sp. Ca. .

— R. V. — Evidence

— St. Edmunds — Settlement
Swaine v. G. N. Railway Co. — Pub. H. Act
Swansea Dock Co. v. Leveine — County Rates

— Harbour, R. v. — Highways
Swan wick v. Varney — Fisheries
Sweet, K r-. — Costs ....
Swift r. Lancashire — Appeal

— — — Highways

— V, Tierman — Evidence .

PAGE

. 141
. 127
. 141
. 122
. 180
. 182
. 17
. 12
. 307
466)— Highways 305, 314,

316, 321
. 352
. 558
. 556

557, 558
. 466
. 529
. 176
. 306

128, 129

113, 127, 133

. 124

. 124

123, 127, 128, 129, 136

181, 184

284, 288
. 288
. 354
. 465
. 521
. 524
. 525
. 558
. 558
. 155
521, 528, 530
. 223
. 489
. 508
. 207
. 310
. 250
. 202
25, 129, 135, 136

288, 320
. 225

121, 1

Ixii

TABLE OF CASES.

Sykes v. Beaden — Gaming .

Tacolnestone, R. v. — Settlement
Tarlargoch Mining Co. v. St. Asaph — Poor-
Tarling v. Fredericks — Theatre
Tassell v. Ovenden — Alehouse
Taunton, St. Mary, R. v. — Certiorari
Taylor v. Davy — Evidence .

— V, Devy — Poor-Rate .

— V. Humphreys — Alehouse .

— V. Jones — Appeal

— V. Orane — Alehouse .

— R. V. — Gaming .

— R. V. — Sum. J. Acts .
Tedford, R. v. — Settlement .

— R. v.— Sp. Ca.
" Temora, The "—Merchant S. A.
Tennant v. Bell — Time

— V. Hamilton — Evidence .
Tenterden Union v. St. Mary, Islington-
Terry V. Newman — Certiorari
Teyninouth, R. v. — Poor-Rate
Theed v. Starkie —Poor-Rate
Thomas v. Evans — Fisheries .

— V. Jenkins — Evidence

— V. Jones — Fisheries

— R. V. — Affiliation

— R. V. — Certiorari

— R. V. — Court .
Thorne v. Colson — Theatre
Thornham, R. v. — Sp. Ca.
Thornton, R. v. — Settlement
Thorp V. Call — Arbitration .
Thurlstone, R. v. — Poor-Rate
Tibberton v. Newport — Appeal
Tillingham, R. v. — Sp. Ca. .
Timson, Ex parte — Rogues, &c.
Tipton, R. V. — Apprentice .

— i2e— Fines, &c.
Tiverton, R. v. — Settlement .
Todd, R. v.— Poor-Rate
Toddington, R. v. — Settlement
Tolpuddle, R. v. — Settlement
Tomlinson, Ex parte — Certiorari
Tonbridge L. B. v. Bishop — Pub. H. Act
Totness, R. v. — Merchant S. A. .

Rate

— Settlement

PAGE

. 269

459, 461

. 415

. 554
81, 82

. 180

. 223

. 381

. 84

. 124

. 79

. 268

. 541

. 476
518, 519, 528

. 371

. 555

. 231

. 486

. 182
379, 403

. 379

. 254

. 223

. 255

. 39

. 180

. 8, 9

. 553

. 525

. 481

. 163

. 393

. 125

. 526
513, 516

. 158

. 249

. 492

. 392

. 478

. 489

. 184

. 511

. 359

TABLE OF CASES.

Ixiii

Towcester, R. v.— Settlement
Townsend, K. v. — Sp. Ca.
Townson v. Read — Highways
Townstal, R. v. — Appeal
Townstall, R. v. — Cost

— R. V. — Settlement
Towser v. Lake— Affiliation .
Traftbrd v. Brehm — Appeal .

— In re — Appeal
Trelawney, R. v. — Excise
Tremagne, R. v. — Poor-Rate

Trent and Mersey Navigation Co., R. v. — Poor-Rate
Trowbridge, R. v. — Evidence

— R. V. — Settlement
Tuckey, R. v. — Appeal .
Turner, R. v. — Evidence

— , V. Post-Master General — Excise
Turret, R. v. — Municipal Corp. Acts
" Two Sisters, The "—Merchant S. A
Twyman v. Knowles — Evidence .
Tyne Coal Co. v. Walls End— Poor-Rate
Tyrley, R. r.— Sp. Ca. .
Tyrwhitt, R. v. — Lunatic Pauper .

UftoK, R. v. — Settlement .

Union Bank of London v. Lenanton — Merchant S.

Ushworth, R. v. — Settlement

Uttoxeter, R. v. — Settlement

Uxfield, R. v. — Settlement .

Velasca v. Hannant — Sp. Ca.
Venables v. Hardman — Certiorari
Verelst, R. v. — Evidence
Verral, R. v. — Poor-Rate
Vine, R. v. — Alehouse .
Viney, In re Gilbert — Appeal

Wade v. Baker — Settlement

Wainfleet, All Saints, R. v. — Settlement

Wakefield L. H, B. , v. W. R. k Grimsby Ry. — Certiorari

— — — — — Court

— R. V. — Settlement
Waldow, R. V. — Poor-Rate .
Walker v. Beauchamp — Settlement
Wallace, R. v. — Certiorari .

— R. V. — Highways .
Waller, R. v. — Highways

PAGE

,

483

,

518

,

296

,

143

,

200

,

467

,

42

. ,

113

,

128

,

235

,

419

,

403

,

224

,

471

108

112

,

228

,

239

,

375

364

365

.

216

421

423

.

529

•

347

.

476

.

358

,

499

,

479

•

474

.

525

.

186

.

226

.

388

.

58

•

124

J

477

491,

501

.

183

,

5, 6

,

487

,

396

.

471

,

180

318,

319

,

292

Ixiv

TABLE OF CASES.

Wallington v. Hoskins — Highways
Walsall, R. v. — Alehouse

— r. L. & N. W. EaUway Co.

— Poor-Rate
—Pub. H. Act
— Sp. Ca.

AYalthamstow, R. v. — Settlement .
"Warblington, R. v. — Highways

^- R. V. — Settlement ,

Ward, R. v. — Sum. J. Acts .
Warden r. Tye — Alehouse .
Warren v. Matthews — Fisheries .
Warwickshire, R. t'.— Animals

— R. V. — Appeal . . . . 112,

— R. V. — Highways .

— R V. — Lunatic Paupers .

— R. V. — Mandamus .
r- R. r.— Sp. Ca.

Washbrook, R. v. — Poor-Rate
Watford, R. v. — Appeal

— R. V. — Settlement .
Watson, R. v. — Evidence

— R. r.— Poor-Rate .

— R. r.— Sp. Ca. ...

— r. Gravesend and Milton Union — Poor-Rate
V. Martin —Rogues, &c. .

Watts V. Lucas— Fisheries .

— R. V. — Mandamus

— R. v.— Time ....
Weale v. Brown — Excise . . .
Weaveley, R. r. — Settlement
Weaver, R. v. — Evidence

— Navigation, R. v. — Poor-Rate.

— V. Price — Appeal .
Webb V. Knight— Adulteration .
Webb's Case — Settlement
Webley v. Woolley — Explosive Substances
Weeks v. Sparks — Evidence .
Weir V. Devon Clerk of the Peace — Borough Rate

. — — — Highways

Wendron v. Stithians— Settlement
Wenman v. McKenzie — Poor-Rate
Weobly, R. v. — Settlement .
Westbrook, R. v. — Poor-Rate
— R. u— Sp. Ca. .

Westbury, R. v. — Appeal
Westbury-on-Severn v. Barrow-in-Funiess — Settlement

PAGE

330, 331
. 65
. 442
. 506

522, 523
. 486
. 302
. 476
. 536
. 75

249, 251
. 93
133, 139, 140, 142
. 326
. 343
. 354
. 520
. 382
. 150

463, 464

228, 231
. 380
. 525
. 392
. 517

255, 257
. 352
. 556
. 240
. 485
. 220
. 396
. 118
. 24
. 489
. 244
. 223

171, 172
. 287
. 476
. 382
. 501
387, 393, 418
. 527
. 110
. 473

TABLE OF CASES.

Ixv

Westbury-on-Trym, R. r. —Settlement .
West Derby Overseers, R. v. — Poor-Rate
West Haughton, R. v, — Appeal .
Westerington, R. v. — Court .
Westerman, Ex parte — Affiliation.

Western, R. v.— Sp. Ca

"Westlake v. Adams — ^Apprentice .
West London Ry. v. Fulliam Union ; also
Arbitration .
— Middlesex Water Works, R. v. — Poor-
Westmorland, R. V. —Appeal

— R. V. — County Rates

— R. V. — Municipal Corp. Acts
AVeston Rivers v. St. Peter's — Settlement
Westrington, R. v. — Affiliation
AVestward Union, R. v. — Lunatic Pauper
Weymouth, R. v. — Certiorari

— R. V. — Court

Wliaddon, R, v. — Poor-Rate
Wheeler v. Barmington — Poor-Rate
Whitby Union, R. v. — Lunatic Pauper

— R. V. — Appeal .
Whitchurch, R. v. — Apprentice .
Whitebread v. Smithers — Fisheries
Whitechurch v. East Lond. Ry. Co. — PoorrRata
White V. Colson — Highways.

— R, V. — Gas, &c. .

— R. V. — Appeal . .

— R. y.— Pub. H. Act .
Whitehead, R. v. — Alehouse
Whitney, R. u ^Bridges
Whittaker u Waters — Evidence .
Whittlesey, St. Mary & St. Andrew, R
Whittuck V. Waters — Settlement .
Wickham, R. v.— Settlement
Wicks, St. Lawrence — Settlement
Widecombe-in-the-Moor, R. v. — Appeal
Widworthy, R. v. — Settlement
Wigan V. Strange — Theatre .
Wilby, R. V. — Settlement .
AVilcock, R. V. — Dealers in Old Metals
Wildest Morris — Fines, &c.

— V. Russell — Sp. Ca. .
Wiley, R. v. — Dealers in Old Metals
Wilkinson, R, v. — Mandamus
Willaud V. Lord jyiiddleton — Evidence

CO nom. R.

Rate

v.—

Settlement

PAGE

. 499

. 397

. 121, 132

. 18

. 38

. 526

. 158

I

liddlesex —

. 163

. 406, 416

. 134, 144

. 211

. 374

. 463

. 30

. 339

. 183

8

. 392

. . . 404

. 341

. 137

. 160

. 252

. 405

. 330

. 272

. 113, 133

. 506

. 74

. 175

. 224

. 458

. 470

. 476

. 484

. 137

. 479

. 553, 555

. 478

. 214

.246

. 520

. 214

. 352

. 225

Ixvi TABLE OF CASES.

PAGE

Willesden,.Il. u— Settlement 491

"Williams v, Bedminster Committee — Appeal . . . 108, 110, 111
_ _ _ — Poor-Rate 403

— V. Blackwall — Fisheries 255

— V. Burgess — Appeal 125

— V. Davies — Highways . . . . . . . . 331

— V. Diggings — Baker ........ 164

— V. Jones — Poor-Rate 401

— V. Llangeinvven — Poor-Rate 396, 404

— R. v.— Appeal 109

— R. t'.— County Rate 312, 331

— R. i;.— Evidence 230

Willoughby, R. r.— Settlement 492, 501

— with-Sloothby, R. v. —Settlement .... 480, 483

Wilson V. Boyd — Evidence 220

— R. i'.— Merchant S. A 361

Wilts, R. V. — Commons Inclosure 189

Wiltshire, R. v.— Affiliation 31

— R. v.— Appeal 108, 110, 111, 120, 143

— . R. V. — Certiorari . . . . . . . . . 184

— R. -r.— Poor-Rate 440, 441

-— R. -y.— Time . . 556

Wingford v. Brandon Carthew — Settlement 463

Win wick, R. r.— Sp. Ca 530

Wishford, R. r.— Sp. Ca. 529

Wistow, R. V. — Sp. Ca 529

Witham, R. v. — Appeal 137

Withnall v. Gartliam — Appeal , 133

Wivelingham, R. v. — Settlement 478

Wixley, R. r.— Settlement 489

Woking, K r.— Poor-Rate 411

Wolverhampton, R. v. — Lunatic Pauper 317

Wood V. Mackinson — Evidence 230

— V. Reid— Poor-Rate 384

— V. Veale — Highways . 306

— R. v.— Baker 164

Woodcok V. Holdsworth — Time 557

Woodhouse v. Wood — Sp. Ca 532

— V. Woods — Time . . 556

Woodland, R. i;.— Settlement 492

Woodrow, R. v.— Excise 238, 241

Woodstock r. St. Pancras, eo nom. Woodstock, R. v. — Settlement . 486

— — — Settlement 473

Woodyer v. Hadden — Highways 307

Wookey v. Hinton Blewitt — Settlement 481

Woolpit, R. v.- Settlement 478

TABLE OF CASES.

Ixvii

Woolpit, R. v.—Si^. Ca. . . .
Wootton Bassett, R. v. — Settlement

— R. -?'. — Settlement .
Worcester (Mayor) v. Droitwich — Poor-Rate

— (Recorder), R. v. — Settlement

— R. V. — Appeal

— R. V. — Poor-Rate

— R. V. — Settlement

— V. St. Clement's — Poor-Rate
Worcestershire, R. v. — Affiliation

— R. V. — Appeal

— R. V. — Highways

— R. V. — Mandamus
Worth, R. V. — Evidence

— R. v.—Sp. Ca.

— V. Teddington — Church
Wray v. Toke — Baker .

— — — Excise .

— — — Sum. J. Acts
Wright V. Clarke — Betting Houses

— R. V. — Evidence

— V. Frant — Highways
Wye, R. V. — Settlement
Wykes, R. v. — Settlement .
Wyley v. Crawford — Merchant S. A.

— R. V. — Settlement
Wymondham, R. v. — Affiliation

— R. V. — Appeal

— R. V. — Settlement

PAGE

. 529
. 493

490, 499
. 396
. 466
. 135
. 400
. 460
. 403
. 45
105, 124, 148
314, 318, 321, 323
. 351
. 224
. 529
. 188
. 165
. 234

540, 541
. 168
. 230
. 319

484, 485
. 469
. 358
. 475
. 30
. 133
. 463

Yarwell, R. v. — Settlement
Yates V. Chippendale — Affiliation
Yearwood, In re, Trusts — Alehouse
Yelverton, R. v. — Evidence .

— R. V. — Settlement
Yeomans, R, v. — Sp. Ca.
Yeoveley, R. v. — Evidence .
Ynyscynhaiarn, R. v. — Settlement
York, R. V. — Appeal

— (Mayor), R. v. — Poor-Rate
Yorkshire, R. v. — Mandamus

' — R. v.y He Bower — Appeal

— E. R. (1 Doug. 183)— Time

— N. R., R. r.— Affiliation

— — R. V. — Appeal .

487

36

36

224

470

525

226

481

127

399

350

114

558

45

141, 147

Ixviii

TABLE OF CASES.

PAGB

146, 148
120
120
120
133
142

Yorkshire, W. R., JJ., R. v. (3 T. R 776)— Appeal .

— — R. v. (5 B. & Ad. 667)— Appeal

— — R. 1?. (2 Q. B. 331)— Appeal .

— — , R. V. (3 M. & S. 493)— Appeal .

— — R. V. (3 D. & L. 152)— Appeal

— — R. V. (2 Q. B. 705)— Appeal .

— — • R. V. (27 L. J. M. C. 269 ; E. B. & E. 713)—

Appeal 124, 127

— — R. V. (]3 L. J. M. C. 39)— Appeal . . .133

— — R. u (7 B. & C. 678)— Appeal. , . 114, 130
_ _ K V. (4 B. & Ad. 685)— Appeal . 125, 130, 142

— — R. 1?. (5 Q. B. 1 ; 31 L. J. M. C. 271)— Appeal 143

R. V. (2 Q. B. 705)— Alehouse .
R. V. (31 L. J. M. C. 271)— Alehouse
R. V. (31 L. J. M. C. 271)— Animals
R. u (2 Dow. N. S. 707) — Apprentice
R. V. (34 L. J. M. C. 42)— Arbitration

R. V.
R. V.
R. V.
R. V.
R. V.
R. V.
R. V.
R. V.
R. V.
R. V.
R. V.
R. V.
R. V.
R. V.
R. V.
R. V.
R. V.
R. V.
R. V.
R. V.
R. V.

4 B. & Aid. 623)— Bridges .

5 Burr. 294)— Bridges .

1 K S. C. 406)— Certiorari .

4 B. & Ad. 685)— Certiorari .

2 B. & C. 228) — Commons Inclosure

5 Q. B. 1)— Costs ....
31 L. J. M. C. 271)— Highways .
7 A. & E. 583)— Fines, &c. .
26 L. J. M. C. 41)— Lunatic Paupers
1 N. S. C. 247)— Mandamus .

1 G. & D. 706)— Mandamus .

2 Q. B. 705)— Mandamus
31 L. J. M. C. 271)— Mandamus .
2 Q. B. 705 ; 6 Jur. 531, S. C. )— Settlement . 466
1 A. & E. 606)— Sp. Ca. ... 520, 521

. 69

. 69

. 94

. 159

. 164

. 173

. 176

. 184

. 185

. 189

. 201

. 321

246, 248

. 343

. 351

. 354

. 353

. 354

11 L. J. M. C. 34)— Sp. Ca. .
7 Q. B. 154)— Sum. J. Acts .
In re Pearson, 31 L. J. M. C. 271)-
5 B. & Ad. 671)— Time .

3 T. R. 779)— Time

4 M. & S. 327)— Time .

-Sum. J. Acts

521
651

552
556
558
558

Young V. Higgon — Appeal 125

" Zela, The "—Merchant S. A 373

Zouche V. Empsey — Appeal 125

— — ^— Time 556

TABLE OF STATUTES.

12 Hen. 2, c. 6 (Gaming)

13 Edw. 1, st, 1, c. 47 (Salmon Preservation)
16 (Constable) .

13 Edw.

1 Edw.
4 Edw.

18 Edw.
34 Edw.
36 Edw. 3, st
12 Rich. 2, c,

c

14 Rich,

2 Hen.
14 Hen.

1 Edw.
11 Hen.

19 Hen.

3 Hen. 8,
22 Hen. 8,

1, St. 2,

3, c. 16

3, c. 2

3, St. 2, c. 2 ) (Justice of the Peace)

3, c.

2, c
6,

1, c. 12

7 (Impotent Beggars — Removal)
. 10 (Justice of the Peace— Quarter Sessions)

12 (Poor — Removal) ....
19 (Fish)

1 (Supreme Court — Justices of Assize)

2 (Quarter Sessions)

-^ > (Poor — Removal)

3 (Gaming).

4 (Apprentice)

5 (Statute of Bridges) .
s. 2 .
s. 3 .
s. 4 .
s. 9 .

28 Hen. 8, c. 5 (Apprentice)
33 Hen. 8, c. 91, s. 2 (Gaming)

s. 11, Qo. ed. Stat. I
s. 8, Fo. and Rev. ed. j
37 Hen. 8, c. 1 (Clerk of the Peace) .
1 Edw. 6, c. 3 (Settlement — Residence)
3 & 4 Edw. 6, c. 1 (Gustos Rotulorum)
5 &6 Edw. 6, c. 25, s. 6 (Fairs) .
1 aiary, st. 2, c. 3, s. 8 (Sheriff) .
5 Eliz. c. 4 (Poor — Apprentices) ,
s. 26 .

s. 81. . . . .
s. 35 .

s. 41

18 Eliz. c. 3 (Poor— Affiliation)

//,

PAGK

266

251

194

2

2

2, 3

3

2

453

3

3

255

180

3

453, 468
453, 494
267
155
172
172
172
172
175
155
269

267, 269

. 14
453, 494
14
66
7, 382
156
468
468
156
468
44

Ixx

TABLE OF STATUTES.

29 Car. 2, c. 3 (Statute of Frauds)

454

43 Eliz. c. 2 (Poor) ....

s. 1 118, 379

s. 5 .

s. 6

s. 9 . . .
c. 5 (Inferior Courts)
1 Jas. 1, c. 7 (Vagabonds)
13 & 14 Car. 2, c. 12 (Poor— Settlement)
s. 1 .
s. 2 .
s. 3 . .

s. 21 .
c. 14 (Poor — Settlement)

I Jas. 2, c. 17 (Vagabonds) .

' ss. 13, 14, 15 in the Fo. and Rev.

ss. 14 & 15 in the Qo. ed.
( s. 16 in the Fo. and Eev. ed.
I s. 17 in the Qo. ed

1 Will. & M. ses. 1, c. 21 (Gustos Rotulorum)

s. 5 .
s. 6
s. 9 .

3 & 4 WUl. & M. c. 11 (Poor) * .

s. 4 . ,

s. 6 .
s. 8 .
5 & 6 Will. & M. c. 11 .

8 & 9 Will. 3, c. 30 (Poor) .

s. 1 .
s. 3
s. 5 .
s. 6

9 & 10 Will. 3, c. 15 (Arbitration) .
10 & 11 Will. 3. c. 17 (Lotteries) .

9 Geo. 1, c. 7 (Poor)

s. 5 . . . ,
s. 8 .
c. 19 (Gaming)

2 Geo. 2, c. 19 (Medway Oyster Fishery Act)

4 Geo. 2, c. 26

5 Geo. 2, c. 18, s. 2

6 Geo. 2, c. 35

II & 12 Geo. 2, c. 19 (Poor) .

s. 3 .
s. 4.
s. 5 .

12 Geo. 2, c. 28 (Gaming)

s. 2 .
c. 29 (Bridges)
s. 13 .

13 Geo. 2, c. 18 (Certiorari)

s. 1 .
. s. 2 ...
s. 5 . . . .
c. 19 (Gaming)

PAGE

157, 395, 436, 437

392. 403, 417, 421

157

437

380

15

453

479, 497, 501

453, 487, 488

113, 131

. 472

. 380

. 468

. 453

eds.

500,

145,

514,

183,

■ 267

. 286

. 14
. 14
14, 15
. 14
. 159
. 453

601, 502
. 467
. 112
. 157
. 472
. 198
. 201

138, 344
. 161
. 268

475, 479

475, 478

146, 147
. 268

260, 525

. 537

3

. 268

548, 549
. 332
. 536

546, 514
. 268
. 77
. 176
. 177
. 183
. 183
. 183

186, 525
. 77

TABLE OF STATUTES.

Ixxi

14 Geo.
17 Geo.

18 Geo.
20 Geo.

26 Geo.
29 Geo.
13 Geo.

2, c.

2, c,

c,

2, c,
2, c

2, c

2, c.

3, c.

22 Geo.
26 Geo.

c.

3, c.
3, c,

33, s. 1 (Bridges)
3, s. 1 (Poor)
38, s. 4 (Poor) .
s. 6
s. 12 .
24 (Unlawful Games) .
19, s. 3 (Apprentice).

s. 5
s. 6 .
14 (Fees — Clerk of the Peace)
33 (Track Act) .
•78 (Highway Act, 1772)

s. 1 .

s. 16

s. 19 .

s. 71

s. 81 .
82, s. 3 (Poor)

s. 4 .

s. 5

116

32 Geo.

35 Geo.

38 Geo.

39 Geo.
41 Geo.

42 Geo.

c.
3, c.

c.
3, c.

3, c.
3, c.
3, c.

c.

3, c.

c.

83 (Gilbert's Act) .

s. 45 .
71 (Slaughter Houses)

s. 2

s. 3 .

s. 4

s. 5 .

s. 6

s. 9 .

s. 12 .

s. 13 .

s. 14 .

s. 15 .
77, s, 12 (Excise— Evidence)
57," s. 1 (Apprentice) .

s. 2

s. 4 .

110, s. 1 (Bridges)
101 (East's Act, 1795)

s. 2 .

s. 3 .

s. 4 .
113 (Fairs)

s. 1 .
Iviii. s. 2 .
79, s. 14 (Alehouse)
23 (Poor-Rate Collection) .

s. 1 .

s. 4 .

s. 6

109, s. 8 (The General Inclosiire Act)
46, s. 7 (Apprentice) .

111, s. 2 (Gaming) .

3 . . . .

144

10

145,

431,

PAOE

. 176

. 430, 452

437, 442, 451

146

288,

290,

425
477
61
161
161
143
116
322, 325, 128
289, 391
289, 312, 222
. 389
. 289
. 90
. 455
. 455
. 455
. 347
. 434
. 99
. 99
. 100
. 101

101, 102
. 102

102, 104
. 101
. 102
. 103
. 103

226, 238
. 160
. 160
. 160
. 177
472, 497
464, 469, 472
453, 454
497, 498
. 66
. 73
. 15
. 85
145, 300
8, 300, 301
145
116, 145, 431
111
157
269
269

Ixxii

TABLE OF STATUTES.

43 Geo. 3, c. 59, s. 1 (Lord Gower's Act)

s. 2
s. 5 .
s. 22 .

44 Geo. 3, c. 54 (Yeoiiiaiirv Coi-ps)

49 Geo. 3, c. 68, s. 5 (Bastardy)

c. 124, s. 4 (Poor)

50 Geo. 3, c. 36, s. 1 (Cinque Ports Act) .

s. 2 .
c. 51 (Bastardy)

51 Geo. 3, e. 61, s. 5 (Cinque Ports— Alehouse)

62 Geo. 3, c.
c.
c.

53 Geo. 3, c.

c.

54 Geo. 3, c.

c.

65 Geo. 3, c.
c.

66 Geo. 3, c.
c.

57 Geo. 3, c.

e.

59 Geo. 3, c.

39 (Pilot Act— Time)

xcv. s. ci.

155, s. 2 (Dissenters)

s. 3 .

8. 11

s. 16 .
xxxi. s. viii.
127, s. 3
90, 8. 2
96, s. 3

s. 4

s. 5 .

8. 9

s. 10 ,.
civ. .
159 (Harbours)

s. 11

8. 12 .

s. 13

s. 14 .

s. 15

s. 21 .

s. 26
170, s. 2 (Poor)

s. 8 .
51 (Borough — Eate) .
68 (Highway Act, 1814) .

s. 2 .

s. 3 .
143, s. 1 (Bridges)

s. 2 .
58, s. 2 (Adulteration — Beer
139, s. 7 (Apprentice)

s. 8 .
19, s. 29 (Alehouse) .
94, s. 2 (County Rates)
12 (Sturges Bourne's Act, 1819)
s. 11 .
8. 19 .
s. 20
s. 21 .
s. 22

0,

11

, 290

PAGE
177

176

'5, 176

176

563

130

463, 469

51, 52

51
463

52

52
5.^8'
412
214
214
215
215
401
119
177
156, 157
156
156
156
156

16
276
276
276
276
276
276
276
276
455
455

107, 171, 374
322, 325, 328

289, 32

2, 323
290
177
179
85
159
161
85
211

426, 437
455

426, 427
427
427
429

TABLE OF STATUTES.

Ixxiii

59 Geo.
3 Geo,

3, c. 50 (Poor Settlement) .
c. cv. 8. iv.

4, c. 46, s. 2 (Fines and Recognizances)

s. 3

s. 8 .
c. cvi. ....

PAGE

487, 488, 490, 491, 493, 499, 502

. 412
. 246
. 247

S. XIV. ....

s. xxvii. .
s. xxviii.

4 Geo. 4, c. 29, s. 1 (Apprentices)

c. 60, s. 60 (Graining)

5 Geo. 4, c. 83 (Vagrant Act)

s. 3

s. 4

s. 5
s. 6 .
s. 10 .
s. 14 .
s. 17 .
c. 57 (Poor) . . . ,

6 Geo. 4, c. 81, s. 2 (Excise Licence)

s. 11 .
s. 26 .
c. 108

7 Geo. 4, c. 64, s. 5 (Fines, &c.) .

s. 6 .
s. 31 .
7 & 8 Geo. 4, c. 53, s. 7 (Excise).

s. 12

s. 14 .

s. 17 . .

s. 19 .

s. 61

s. 65 . .

s. 68

s. 71 .

s. 72

s. 73 .

s. 74

s. 76 .

s. 77

s. 78 .

s. 82

s. 84 .

s. 85

s. 86 .

s. 87 . . .
9 Geo. 4, c. 31 (Offences against tlie Person)
c. 45, s. 38 (Recorder's Jnrisdiction)
c. cxiii. . . .

c. 61 (The Intoxicating Liquors Act
s. 1 . . . .

s. 2

s. 3

1828)

487

49

. 247

. 21

. 22

. 164

. 164

. 161

. 270

195, 518

. 196

515, 516

. 517

195, 196

. 517

195, 518

. 517

490, 492, 493, 499

. 58

. 6ti

74, 228, 239

. 541

246, 249

. 248

. . 247

. 236

. . 226

. 233

. . 238

. 225

134. 234

. 234

. . 234

. 238

. . 238

. 236

. . 238

. 238

. . 237

. 240

233, 241, 243

. 243

. . 243

. 244

. . 244

. 540

. . 11

. 401

7, 58, 64, 75, 115

50, 52, 55, 65, 68

. 50

. 54

d

Ixxiv

TABLE OF STATUTES.

PAGE

9 Geo. 4, c. 61, s. 4

. 59

s. 5

. . 52

8..7

52, 55

8. 8. .

. 52, 55

s. 12

. 63

s. U

60, 61, 62, 63

s. 16

. 57

s. 27 ...... 55, 64, 67, 69, 72, 143, 202

s. 28

67, 69, 143

s. 29

67, 69, 143

s. 36

. 54

11 Geo. 4 & 1 Will. 4, c. 64 (Licensinpr Act) .

. . 540

. 15

1 Will. 4, c. 18 (Poor)

490, 493, 499

488, 492, 498

s. 2

. . 488

. 74

1 & 2 Wm. 4, c. 42 (Poor) . . .

. . 455

s. 5

. 502

c. 59, 8. 1 (Poor— Crown Lands)

. . 455

s. 2

. 502

2 Will. 4, c. 16, s. 19 (Excise— Evidence)

. . 225

2 & 3 Will. 4, c. 45, s. 30 (The Reform Act> .

. 501

c. 64 (Boundaries Act) ....

174, 289, 337

s. 35 .

. . 10, 173

c. 115 (Roman Catholics)

. . 214

3 & 4 Will. 4, c. 30

. 397

c. 42 (Arbitration) ....

. . 163

. 480

4 & 5 Will. 4, c. 47 (Quarter Sessions)

. . 15

234, 236, 237

s. 22 . . ....

. . 243

s. 23

238, 241, 242

s. 24 •

. . 240

c. 76 (Poor Law Amendment Act, 1835) 29

445, 467, 501

s. 5

. 157

s. 33

. . 455

s. 56

. 340, 457

42, 43, 340

s. 61

. 157

. . 454

s. 66 487, 488,

498, 500, 502

s. 68

. . 488

s. 71

33, 463, 485

s. 79 124

353, 464, 465

s. 81 124,

148, 465, 557

s. 82

. . 198

s. 83

. 152, 198

8. 97

. . 340

s. 102

. 538

s. 109

. . 379

c. 85 (Beer Licence) . . . . .

. 540

s. 17

. . 74

5^6 Will. 4, c. 50 (The General Highway Act, ia35) 115, 177

, 280, 283, 322

s. 5

. 290, 291

TABLE OF STATUTES.

Ixxv

5 & 6 Will. 4, c- 50,

s. 6
s. 10
s. 18
s. 21
s. 23
& 27
s. 30
s. 33
s. 63
fi. 66
s. 71
s. 79
s.

6.

S.

s.

PACK

. 283

, . 283

. 281

. . 174

. 307, 309

. . 296

. 429

296, 309

. 292

- , 311
. 282

- . 109
. 308

288, 289, 290, 312, 322, 323, 309

. 312

. 288, 289, 312, 314, 315, 323

314, 315, 318, 319, 322, 323, 324

. 317, 820, 327, 329

. 317, 3-^7

107, 122, 140, 201, 288, 322, 326

, 300

(See ss. 228, 229, Act 1882) j

80
82
83
84
6. 85 289, 290,

s. 86
s. 87
s. 88
s. 106
s. 107

s. 108 . .

c. 59 (Cruelty to Animals)
c. 63 (Weights and Measures)
c. 76 (The Municipal Reform Act, 1835. See
Municipal Corporations Act, 1882 ;
Viet, c 50)
s. 7
s. 8

s. 58 (See s. 164, Act 1882)
s. 92 (See fi. 144, Act 1882)

s' 101 1 ^^^ ^' ■^^^' ^^* -^^^"^^
s! 102 (See s. 159, Act 1882)
s. 103 (See s. 162, Act 1882)
s. 105 (s. 165, Act 1882) 8, 11, 12, 68, 131
s. 106 (See s. 167, Act 1882)
s. 107 (Repealed, Act 1882)
s. Ill (See s. 154, Act 1882)
s. 117 (See ss. 150—153, Act 1882)
s. 126 (See s. 221, Act 1882)
s. 127 (See s. 219, Act 1882) .
s. 131 (See s. 31, S. J. A., 1879)
6 & 7 Will. 4, c. 19 (Durham Sessions)
c. 37 (Bread — London) .
s. 2

s. 4 .
s. 6
s. 7 .
s. 9
8.40 .
s. 13 .
8. 14 .

138

307

. 301

. 90, 101

11

now The

45 <te 46

287, 289, 336

. 173

. . 10

14

107, 171, 374

. 51

. 11

. 538

8

140. 184

9

. 8, 11

13

171, 337

. 240

. 374

. 375

14

21, 164

. 21

. 164

. 164

. 164

21

21

. 165

. 165

d 2

Ixxvi

TABLE OF STATUTES.

c.
c.
c.

6 & 7 Will. 4, c. 37, s. 25 .

s. 26 .
s. 31 .
s. 34 .
• s. 36 .

66 (Gaming — Lotteries)
>7 (Clerk of the Peace)
96 (The Parochial Assessment Act,

s. 1

s. 4

s. 6 . .

s. 7 . ' .

s. 36

7 Will. 4 & 1 Vict. c. 19, s. 1 j (See Municipal Act,

c. 32 (Post Office) .

c. 36 (Post Office Consol. Act)

s. 2 ...

■ s. 3 .

s. 5 . .

s. 6 .

s. 7 ...

s. 11 .

s. 13

s. 14 .

s. 16

s. 17 .

s. 24

s. 47 .
c. 45, s. 2

c. 66 (Cruelty to Animals)
c. 78, s. 31 (Municipal Act)

1 & 2 Yict. c. 38, s. 2 (Rogues, &c.) .

2 & 3 Yict. c. 45 (Highways — Railway) .

s. 2

47, s. 45 (Metropolitan Police Act

s. 46

s. 48

71, s. 14 (Metropolis) .

s. 50

82, s. 1 (County Jurisdiction)

84, s. 2 (Poor Rate) .

85, s. 1 (Bastardy).
c. 93, s. 16 (County Police Act) .
c. xciv, s. 101 ....

3 & 4 Vict. c. 54, s. 2 (Criminal Lunatics)

c. 61, s. 1 (Alehouse)

s. 7

c. 85, s. 2 (Chimney Sweeps)

s. 11

4 Vict. c. 20, s. 26 (Excise).

s. 30

c.

c.

c.
c.
c.

4 & 5 Vict. c. 48 (Municipal Act-^See Act 1882)
c. 51

1836)

1882)

1839)

396,

29

431,

438,

603,

PAGE

. 22, 165
22, 165
. 164
. 21
. 21
. 270
. 14

385, 402

385, 403
. 427

439, 442

297, 439
. 388
. 16
. 16
. 502
. 502
. 502
. 502
. 503
. 503
. 503
. 503

504, 537
. 504
. 504
. 504
. 504
. 504

380, 452
. 90
. 374

514, 518
. 280
. 296
. 74
. 654
. 167
. 51
. 565
. 234
. 283
. 29
75, 77
. 565
348, 349
. 50
. 57
159, 187
187, 188
. 233
134, 243
. 398
. 280

TABLE OF STATUTES.

Ixxvii

4&5 Vict., c. 59

5 Vict. c. 7 (Apprentice)

5 k 6 Vict. c. 35, s. 60 (Income-Tax Act) .

c. 38, s. 1 (Criminal Juiis. Q. S.)

c. 44, s. 1 (Alehouse)

c. 55 (Highways) .

c. 57, s. 15 (Justice of the Peace)

6 Vict. c. 20 (Crown Office) .

6 & 7 Vict. c. 68, s. 2 (Theatre) .

s. 7 .

s. 10

s. 11 . .

s. 15

s. 20 .

s. 23
c. 73, s. 3 (Justice of -the Peace)
c. 89 (Municipal)

7 & 8 Vict. c. 33 (Constable) .

c. 61 (County) ....
c. 71 (Midd. Sess.)

c. 87,

c. 92,

s. 1 (Slaughter-Houses) .

s. 2 .

s. 3 . . . .

s. 5 .

s. 6

s. 17 (Fines, &c.) .

s. 18
c. 101 (Poor Law) .

s. 2

s. 3 .

s. 4

s. 5 .

s. 6

s. 10 .

s. 12

s. 13 .

s. 25

s. 28 .

s. 53

s. 55 .

s. 56

s. 70 .
8 Vict. c. 10 (Bastardy) ....

s. 3

s. 4 ..... .

s. 5

s. 6

s, 7 .
8 & 9 Vict. c. 16, s. 159 (Companies Clauses

c. 18 (Lands Clauses Consolidation Act

s. 68 . . . .

s. 133

s. 146 .

c. 20 (Railway Clauses Consolidation Act, 1845
s. 60

onsolidation
1845)

PAQB

280

160

445

5

61

280
7
186
553, 554
554

30

33,

555

554

555

555

553

3

9

195

174, 234

1

100

101

91, 103

102

102

249

249

29, 43

30, 32
. 30, 37

37, 44, 549
42, 43, 48
515

Act,

. 46

. 157
. 157
. 457
. 348
. 315
. . 315
336, 339, 455
. . 38
. 29
44, 45, 549
. 30
. . 48
31, 39
. . 34
1845) . 191
. 166
110, 1:31
. 405
. . 191
191, 280, 356
. 191

Ixxviii

TABLE OF STATUTES.

8 & 9 Vict. c. 20, s. 151
s. 157
c. 71 (Highways)
c. 74 (Gaming)
c. 109 ^Gaining)

s. 1

s. 3

s. 4

s. 5

s. 6

s. 10

s. 11

s. 13

», 17

s. 20

c. 117, s. 2 (Poor) , . .

c. 118, s. 62 (Conmions Inclo&ure Act) .

».e3

s. 64

s, 162

s. 647

c. 126, s. 58 (Lu»aties)

s. 62

9 & 10 Vict. c. 59 (Dissenters) ....

c. 66 (Poor Law)

8. 1

s. 2

s. o . . . . .
». 4

€. 74, s. 30" (Bath and Wash-houses Act)
e. 109, s. 10 (Gaming) .
10 Vict. c. 5 (Alehouse — Beer)

10 & 11 Vict. c. 14, s
s

12 (Market and Fairs Clauses Act, 1847)

13 . . . . .

14

15 . . . . .

16

19

22

23 . .

24

25

28

30. ' . * . * . ' . * .

42 . ■ .

44

c. 15 (Gas Clauses Act, 1847) .

s. 3

s. 15

s. 18

s. 19 .

s. 20

s. 24

PAGE

.179,190

179, 190, 191, 285

. . 280

. 270

. . 270

. 77, 166

. . 167

. 167
. . 167

. 167
. . 169

. 170
. . 170

. 270

. 167, 270

. 338, 483

.188,312

. 189, 312, 558

. . 312

. 188, 312

. . 189

. 114, 347, 348

. 114, 347, 348

. 214

. . 460

339, 455, 458, 496

. . 461

. 462
. . 458

. 166
. . 268

. 85
. . 355

. 355
. . 355

. 355
. . 355

. lOO
. . 355

. 355
. . 355

. 355
. . 355

. 355
. . 356

. 356
. . 356

. 272
. 272, 273

. 273

273
273
273
273
273

TABLE OF STATUTES. Ixxix

PAGE

10 & 11 Vict., c. 15, s. 28 273

s. 40 191

c. 16, s. 106 (Commissioners Clauses Act, 1847) . 190, 191

c. 17, s. 85 (Water Works Clauses Act, 1847) . . .191
c. 27 (The Harbours, Docks, and Piers Act, 1847) . 275, 276

s. 14 276

s. 15 . . 276

s. 16 276

s. 17 . . . 276

s. 18 277

s. 19 277

s. 28 . 277

s. 35 277

s. 36 277

s. 38 277

s. 39 . . . ■ 277

s. 50 277

s. 53 . . . 278

s. 54 . . 278

s. 55 278

s. 60 278

s. 61 278

s. 62 273

s. 63 278

s. 64 278

s. 65 . . . . 278

s. 66 279

s. 67 279

s. 69 tV . . . 279

s. 70 279

s. 71 279

s. 72 279

s. 73 276—280

s. 82 . . . . 280

ss. 83—90 . . 280

. s. 92 191, 280

c. 33 (Poor) 457

c. 34 (The Towns Improvement Clauses Act, 1847) . 99, 559

s. 84 560

s. 85 .560

s. 86 . . . 560

-s. 104 660

s. 105 560

s. 125 100

s. 129 103

s. 130 103

s. 185 559

s. 186 559

8. 187 560

s. 188 659, 560

s. 189 . .• 560

s. 190 560

s. 210 191

c. 65, s. 58 (The Cemeteries Act, 1847) . . . .179
s. 59 179

Ixxx

TABLE OF STATUTES.

PAGE

10 k 11 Vict, c 65, s. 62 .

^

. 191

c. 89, s. 5 (Towns Police Clauses Act, 1817)

. . 78

s. 34 .

•

. 77

s. 35 .

. . 75

s. 73

,

. 191

11 k 12 Vict. c. 31 (Poor Law)

. 113, 469

ss. 1—3 .

,

. 469

s. 3 .

. . 465

s. 4 .

150,'

151, 347, 485

s. 5 .

. . 153

s. 7

^

. 354

s. 8 .

200, 466, 485

s. 9

^

109, 124, 465

c. 42, s. 6 (Procedure, JJ.) .

. . 234

s. 7

. . • . .

.

. 234

c. 43 (Jervis's Act,

1848) . . 32, 70,

169,

213, 357, 535

s. 1 .

• • • « »

^

. 236, 536

s. 3 .

236, 238

K. 4

• » » • •

^

. 188

s. 6 .

. . 234

s. 10 .

• • » • •

,

. 234, 235

s, 11

. 20, 165, 188

238,

243, 271, 275

s. 13 .

» • • • •

^

. 237

s. 14

. 228,

234,

238, 239, 240

s. 19 .

• * • » •

^

. 271

s. 27

. 199,

203,

451, 467, 563

s. 30 .

• • ' » • *

^

. 532

s. 35 .

• • • • •

. 504, 537

c. 44, s. 5 (Mandamus) ....

,

. 354

c. 63, s. 69 (Public Health Act, 1848)

. . 308

s. 70 .

,

. 308

s. 93

• • • > •

. . 398

c. 110 (Poor) .

,

. 342

s. 8

. . 465

s. 10 .

,

. 514

c. Ill, s. 1 (Poor)

460, 496

c. 118 (Excise)

,

. 234

12 Vict. c. 14 (Poor)

. . 280

12 k 13 Vict. c. 1, s. 5

,

. 233

. c. 45, s. 1 (Raines's Act) 49, 121, 134, 1.51,

353,

438, 547, 548

s. 2

122, 128, 134, 135, 191,

345,

545, 546, 549

s. 3 .

151, 152

s. 4 .

,

. 152

s. 5 .

152,

199, 203, 467

s. 6

,

199, 467, 485

s. 7 .

41, 120, 130

s. 8

^

. 149

s. 9 .

119,

137, 152, 353

s. 11 .

,

. 181, 531

s. 12

. . 161

s. 13 .

,

. 154, 162

s. 14

. . 162

s. 15 .

,

. 163

s. 16

. . 163

TABLE OF STATUTES.

Ixxxi

12 & 13 Vict. c. 45, s. 18 .

c. 68, s. 12 (Public Documeuts

s. 17 .
c. 82 (Lunatics) .
c. 92 (For the more effectual
Animals, 1849) .

2 .

3 . . .

5 .

6 . . ,

7 .

9 ,
10
11
13

14

13 & 14 Vict.

14 & 15 Vict.

c.
c.
c.
c.

c.
c.
c.

s. 18 .
s. 20 .

s. 25 . _ .
103, s. 5 (Lunatics)
118, s. 3 (Excise)
21, s. 4 (Lord Brougham
101, s. 5 (Lunatics)

s. 7
55 (Criminal Just. Act)
99, s. 2 (Evidence Act)
105, s. 10 (Poor) .
15 & 16 Vict. c. 36 (Dissenters)

c. 61, s. 1 (Excise) .

s. 3 .

c. 81 (County Rates)

s. 2 .

5

6

10
11
15
16

s.
s.
s.
s.
s.
s.
s. 17
s. 18
s. 19
s. 21
s. 22
s. 23
s. 24
s. 25
s. 36
s. 37
s. 47

16 & 17 Vict. c. 30, s.

s.

48
51
52
4 (Cer

tiorar

Act)

-Evidence)

Prevention

of

Cr

uelty

92,

207,

208,

210,

PAGK

204, 451
. 226
. 226
. 337

to

101, 103
. 91
. 91
. 91
. 92
99
. 103
104
104
. 99
. 92
. 92
. 92
. 92
. 112
. 339
. 234
. 558
. 340
. 438
1
48, 238
. 123
. 214
. 233
. 238
. 205
424
206
424
. 206
. 206
. 207
. 207

211, 274
. 209
. 209
. 208

272, 434
. 211
. 211
. 195
. 195
. 194
. 208
. 208

171, 21]
. 212

180, 183
. 183

205,

206,

Ixxxii

TABLE OF STATUTES.

Act,
853)

139, 338, 341

lt> & 17 Vict. c. 67, s. 15 (Excise)

c. 79, s. 1 (Municipal Act. See

s. 2 .
c. 97 (The Lunatic Asylum Act,
s. 1 .
ss. 2—7
s. 3 .
s. 8
s. 9 .
s. 10
s. 12
s. 22
s. 35
s. 55
s. 67
s. 68
s. 80
s. 95
s. 96
s. 97
■ s. 98
s. 99
s. 100
s. 102
s. 106
s. 107

s. 108 . . . . 138
s. 109
. s. 110
s. Ill
s. 112
s. 113
s. 114
s. 115
s. 116
s. 117
s. 122
s. 131
s. 132
c. 119 (Betting
s. 2.
s. 3
s. 4 .
s. 6
s. 7 .
17 & 18 Vict. c. 60, s. 1 (Cruelty— Dogs)
c. 86 (Poor)
c. 104 (The Merchant Shipping Act

s. 13

s. 41

s. 45

s. 49

s. 50

s. 52

s. 53

House Act, 1853)

1882)

342,

, 139,

144,

1854)

PAGE

. . 235

. 398

. . 398

. 337

. . 138

. 334

. . 335

. 334

. . 335

. 334

. . 335

. 335

. . 396

. 397

335, 336

. 335

. . 346

. 336

337, 342, 349

343, 347, 349

337, 338

. 337, 338

. . 342

. 339

. . 348

345, 346, 348

326, 342, 344

. 344

. . 344

. 345

151, 345

. 345, 346

346

346

354

345

335

334

342

77, 166

166, 167

168

168

169

168

92

398

356

358

358

358

358

358

358

358

TABLE OF STATUTES.

Ixxxiii

17 k 18 Vict. c. 104, s. 81, siib-s. 11
s. 103, sub-s. 2

sub-s. 4
s. 105
s. 127
s. 136
s. 140
s. 143
s. 145
s. 146
s. 147, sub-s. 1

sub-s. 2
s. 148 .
s. 152
s. 157 .
s. 158
s. 160 .
s. 161
s. 162 .
s. 164
s. 166 .
s. 170
s. 171 .
s. 172
s. 174 .
s. 176
s. 180 .
s. 180 g.
s. 180 j.
s. 196
s. 203 .
s. 206
s. 207 .
s. 209
s. 211 .
s. 212
s. 214 .
s. 215
s. 216 .
s. 217
s. 218 .
s. 219
s. 220 .
s. 221
s. 225 .
s. 226
s. 230 .
s. 232
s. 237 .
.s. 239
s. 242 .
s. 243
s. 246 .
s. 256
s. 257 .

PAGE

. 359

. 359

. 359

. 359

. 359

. 359

. 359

. 359

. 360

. 360

. 360

. 360

. 360

. 360

. 360

. 360

. 360

. 3'60

. 360

. 360

. 360

. 360

. 360

. 361

. 361

. 361

361, 362
. 361
. 361
. 362
. 362
. 362
. 362
. 362
. 362
. 362
. 362

362, 363
. 363
. 363
. 363
. 363
. 362
. 363
. 363
. 363
. 363
. 363
. 363
. 364
. 364
. 364
. 366
. 366
. 366

Ixxxiv

TABLE OF STATUTES

17 & 18 Vict. c. 104, s. 258
s. 259
s. 266
s. 267
s. 268
s. 273
s. 274
s. 275
s. 276
s. 280
s. 282
s. 284

sub
su))
sub

s. 285
s. 286
s. 287
s. 291
s. 292
s. 293
s. 301
s. 302
s. 306
s. 308
s. 315
8. 317
s. 318
s. 319
s. 320
s. 321
s. 323
s. 324
s. 326
s. 327
s. 328
s. 329
s. 346
s. 347
s. 348
s. 350
s. 351
s. 353
8. 354
s. 358
s. 359
s. 361
s. 365
s. 366
s. 376
s. 379
s. 414
s. 415
s. 441
s. 442

-s. 3

TABLE OF STATUTES.

Ixxxv

PAGE

17 & 18 Vict. c. 104, s. 443

, ,

. 373

s. 444

, ,

. 373

s. 446

, ,

. 373

s. 447

, ,

. 373

s. 450

, ,

. 373

s. 478

, ,

. 373

s. 480

, ,

212,

213, 373

s. 481

, ,

. 373

s. 482

, ,

. 373

s. 483

, ,

. 374

s. 518 .

,

. 356

sub-s. 2 356, 358, 36C

, 361, 362,

363,"

364, 369

sub-s. 3

,

. 357

snb-s. 4 .

, .

356, 357

c. 125, s. 22 (Common Law Procedure

Act, 1854)

. 229

ss. 3-17 . .

, ,

. 298

s. 24

,

. 231

s. 103

^ ^

. 231

18 & 19 Vict. c. 48, s. 5 (Cinque Ports) .

,

. . 52

c. 81 (Clmrch). . .

,

187, 214

s. 3

,

. 215

c. 86, s. 2 (Dissenters)

. ,

. 214

c. 87 (Poor-Rate) . ■ ,

, ,

. . 398

c. 91, s. 9 (Merchant Shipping Amendment Act,

1855)

. 359

c. 96,, s. 28 (Excise) .

. . 240

c. 105, s. 7

• •

. 335

s. 8

315, 335

s. 14 .

^ ,

. 336

s. 96 . . . .

. . 315

c. 119, s. 18 (Merchant Shipping Act,

1855)' .

. 357

c. 120 (Metropolis)

444, 449

s. 8

, ,

. 315

c. 121, s. 22 (Nuisance Removal Act)

. . 558

c. 126, s. 21 (Justice of the Peace) .

, ,

3

19 A^ict. c. 48 (Justice of the Peace) .

. . 52

19 & 20 Vict. c. 87 (Lunatics) ....

, ,

. 335

c. 112, s. 3 (Metropolis)

. . 315

20 Vict. c. 19 (Highways)

, ,

. 285

s. 1

291, 384

s. 4

, ,

. 291

s. 8

. . 291

20 & 21 Vict. c. 43 (Jervis' Act, 1857) .

, ,

. 533

s. 2

181, 532

s. 3

, ,

. 532

s. 4

. . 533

s. 5 . . . .

, ,

. 533

c. 55 (Reformatory Schools)

. . 398

21 k 22 Vict. c. 73, s. 3 (Stipendiary Magistrates).

, ,

. 51

s. 4

. . 61

s. 9

, ,

14, 16

s. 12

. . 17

22 & 23 Vict. c. 4 (Middlesex Sessions).

, ,

1

c. 21, s. 40 (Fines, &c.)

. . 249

c. 37 (Customs) ....

, ,

6, 240

c. 40 (Naval Volunteers) .

. . 563

Ixxxvi

TABLE OF STATUTES.

PAOB

22 k 23 Vict. c. 43 (Inclosure Act) 296

c. Q6 (Gas Act) 270

9

10

11

12,

13

14,

15

17.

18

20.

24 & 25 Vict.

. 271

. . 271

. 271

. . 271

. 271

. . 271

. 271

. . 271

. 271

. . 271

. 272

. . 74

. 57

. . . . 187

. 23

228, 239

. 236

. . 244

. 270

339, 455, 456, 458, 462

. 462
462,

s. 22

23 & 24 Vict. c. 27, s. 19 (Excise— Alehouse) .
s. 22 .
c. 32, s. 2 (Church) .
c. 84 (Adulteration)
c. 113, s. 36 (Evidence — Revenue)

s. 37

c. 139 (Gunpowder Act, 1860) .

c. 146 (Gas)

c. 55, s. 1 (Lunatic) .

s. 2

s. 3

s. 7

c. 61, s. 9 (Local Government Act,
Act, 1861)
70 (The Locomotive Act, 1861) .
75, s. 5 (MuuicipaL See Act 1882)

76 (Poor)

79 (Gas) ....

91, s. 46 (Excise)

95 (Certiorari) 183

c. 96, s. 24 (The Larceny Act, 1861) . . . .252

s. 110 29, 197, 246, 569

c. 97, s. 68 (The Malicious Injury to Property Act, 1861) 197
c. 101 (Stat. Law Revis. 1861) . . . . 1, 195

c. 109 (The Salmon Fishery Act, 1861) 251, 254, 255, 257, 258

1858, Amendment

c.
c.
c.
c.
c.
c.

496
343

285
281
538
457
270
237

s. 4

251

s. 5 . .

252

s. 6

252

s. 8 .

. 251, 252, 253, 257

s. 9

251, 253

s. 10 ...

254

s. 11 . .

254

s. 12 ...

255

s. 13 .

256

s. 14 . . .

253

s. 15 .

254

s. 17 ...

253

s. 19 .

253

s. 20 ...

256

s. 21 . .

256

s. 22 ...

256

s. 23 .

256

TABLE OF STATUTES.

Ixxxvii

PAGE

24 & 25 Vict. c. 109, s. 25

. 256

s. 28.

. . 256

s. 30

. 256

s. 33.

. . 257

s. 39

. 251

c. 110, s. 3 (Dealers in Old Metals)

. . 212

s. 4

. 213, 214

s. 5

213, 214

s. 8

. 213, 214

s. 9 .

. . 213

s. 11

. 213

25 Vict. c. 22, s. 12 (Excise— Alehouse) . .

. . 66

s. 13 .

. 6Q

s. 20

. . 85

s. 44 .

6

25 & 26 Vict. c."61, s. 2 (The Highways Act, 1862) .

285, 287, 291

s. 3

. 290, 291

s. 4 .

,,,,,,,

. . 281

s. 5

. ■ 282, 283

s. 7 .

• ••«•••

285, 286, 290

s. 10

. 281, 282

s. 11

• •«••••

. . 283

s. 16

. 282

s. 17

,,,,,,,

. . 329

s. 18

. 329

s. 32

• ••••••

286, 291

s. 33

. 286, 292

s. 35

,,,,,,,

301, 302

s. 36

. 304

s. 38

,.,,,,,

183, 300

s. 39

. 282

s. 44

• • • • , • • •

122, 312

s. 47

. 302

c. 89 (Companies Act, 1862)

. . 457

s. 62

. 237

c. 103 (Tlie Union Assessment Committee Act, 1862) 205, 296,

382, 384, 388, 424,

429, 437, 444

s. 2 .

• •••>••

. 430, 445

s. 3

,,..,..

. 430, 444

s. 6 .

,,,.,,,

. . 445

s. 7

,,,,,,,

. 430, 445

s. 10

,,,,,,,

. . 443

s. 14

382,

424, 432, 444

ss. 14-

-16

. . 434

s. 15

384,

387, 430, 444

s. 17

. 431, 433, 434,

435, 439, 444

ss. 17-

-21

. 445

s. 18

,,,,,,,

116, 431, 434

s. 19

.

. 433, 434

s. 20

424, 432,

433, 434, 435

s. 21

433,

434, 435, 443

s. 22

• •••..

. . 443

ss. 22-

-27

. 444

s. 23

• • • i • • .

. . 433

s. 24

• • • • • •

. 434

Ixxxviii

TABLE OF STATUTES.

PAGE

25 & 26 Vict. c. 103, s. 25 . . . . . . 382,

424, 432, 434

s. 26

434, 436

s. 27

. 434

s. 28 434,

436, 437, 444

s. 29 . . . • .

436, 437, 444

s. 30

. 380, 437

s. 31

. 434

ss. 31—36

. . 444

s. 32

434, 435

s. 33

. . 436

s. 34

. 443

s. 35

427, 443

s. 36

. 434

s. 39

434, 444

s. 41

. 444

s. 42

. . 444

s. 43

437, 444

c. Ill, ss. 31—33 (Lunatics) ....

. . 335

s. 45 ......

336, 337

26 & 27 Vict. c. 33, s. 20 (Alehouse)

. . 66

s. 21

. 66

s. 22

. . 206

c. 61 (Highways) ......

. 281

c. 65, s. 28 (The Vohinteer Act)

. . 563

s. 29

. 563

s. 38

. . 564

s. 45 ■ .

. 564

s. 48

. . 564

s. 49 . . . . .

. 563

c. 89 (Poor)

. . 457

c. 97 (Stipendiary Magistrate) ....

. 51

s. 3

. . 3, 4

s. 5

4

27 & 28 Vict. c. 10, s. 3 (Salmon Fishery Act, 1863) .

. . 257

c. 18, s, 5 (Customs)

. 66

c. 29, s. 2 (Lunatic — Criminal) ....

. . 348

s. 5 ...'....

. 349

c. 37 (Chimney Sweep — Apprentice) .

. 159, 187

s. 9

. 187

c. 39 (The Union Assessment Committee Amendment Act,

1864)

. . 429

s. 1 . . . 117, 141, 434, 439,

442, 443, 444

s. 2

. . 440

s. 3

. 113, 440

s. 4

.135, 444

s. 6

. 183, 432

s. 9

. . 444

s. 11

. 444

s. 42

. . 440

c. 47, s. 5 (Convicts)

. 196

c. 64, s. 10 (Public-house Closing Act, 1864)

. . 85

c. 65 (Clerk of the Peace) ....

5

c. 101, s. 1 (The Highway Act, 1864) .

. . 281

s. 3

205, 287, 292

s. 5

28

4, 292, 431

TABLE OF STATUTES.

Ixxxix

PAGE

27 & 28 Vict. c. 101, s. 6 ........ .283,292

s. 8 285, 28t), 290

s. 9, sub-s. 1 * . . 281

siib-s. 2 281

sub-s. 5 282

s. 10 282

s. 13 285, 286

s. 14 283

s. 16 . ... 284

s. 17 300

s. 18 283

s. 19 333

s. 21 106, 305

s. 29 301

s. 32 295, 296, 297

s. 33 297

s. 35 296

s. 36 296, 298

s. 37 297

s. 38 297, 330

s. 39 298, 330

s. 40 298

s. 41 298

s. 42 299, 330

s. 43 302

s. 44 286, 299

s. 46 7, 183

s. 47 . . , 303

c. 105, s. 1 (Poor) . . 466

28 k 29 Vict. c. 79, ss. 2—7 (The Union Chargeability Act, 1879) . 465

s. 4 ; . 465

s. 6 461

s. 8 339, 456, 458, 462, 476

c. 121 ^The Salmon Fishery Act, 1865) . 183, 251, 254, 258

s. 4 250, 251

S. 5 251

s. 6

. 251

s. 7

. . 251

s. 8

. 251

s. 9

. . 251

s. 10

.' 251

s. 11 . ....

. . 251

s. 12

. 251

s. 13 . . . .

. . 251

s. 14

. 251

s. 15

. . 251

s. 16

. 251

s. 17

. . 251

s. 18

. 251

s.. 27

. 251, 257

s. 33

. 251

s. 34

. . 251

s. 35 . . . . . . .

. 251, 257

s. 36

. . 251

s. 37 . . • . . .

. 251, 257

xc

TABLE OF STATUTES.

28 & 29 Vict. c. 121, s. 38

. . 251

s. 39

. 255

s. 43

. . 257

s. 56 251, 253,

256, 257

s. 57

253, 258

s. 58

253, 257

s. 60

. . 253

s. 61

183, 258

s. 64 251,

252, 257

. s. 65

. 257

s. 66

. . 256

c. 124, s. 6 (Admiralty)

. 20

. . 20

29 & 30 Vict. c. 82 (Gas— Board of Trade)

. 270

c. 85 (Oysters and Mussel Fishery Act, 1866)

. . 270

s. 3

. 260

s. 15

. . 260

s. 16

. 260

- s. 17

. . 260

s. 20

. 260

. 444

c. 117 (Reformatory Schools Act) ....

. 397

s. 17

. 496

c. 118, s. 7 (Industrial Schools Act)

. 397

. . 451

c. 12, s. 5 (Lunatic— Criminal) , . . .

. 349

30 & 31 Vict. c. 5, s. 8 (Excise)

228, 239

c. 90, s. 3 (Excise).

. 236

. . 228

s. 12

. 222

s. 17

. 237

c. 102, s. 7 (Small Tenements— Rate)

427, 428

c. 106, s. 15 (The Poor Law Amendment Act, 1867)

. 380

s. 25

. 464

s. 26 ...... .

. . 464

s. 27

. 138

c. 115, 8. 2 (Justice of the Peace) . . . .

8, 183

c. 130, s. 1 (Agiicultural Grangs Act)

. 49

s. 5

. 49

s. 6

. 49

. . 49

31 & 32 Vict. c. 45, s. 1 (Sea Fishery Act, 1868) ....

. 260

s. 5

. 259

s. 6

. 259

s. 7

. 259

s. 8

. 259

s. 13 . . . . .

. 259

s. 14

. 259

. 259

s. 20

. 260

s. 22

. 260

s. 24

. 260

s. 26

. 260

s. 32

. 259

s. 33 .

. 259

TABLE OF STATUTES.

XCl

PAGE

259
261
261
261
261
516
517
260
285

31 & 32 Vict. c. 45, s. 35

s. 41

s. 49

s. 53

s. 57

c. 52 (Vagi-ant Act) .....

s. 3 . . . . .
c. 53 (Medway Regulation Continuance Act, 1 868)
c. 122, s. 9 (the Poor Law Amendment Act, 1868)

s. 27 285, 292, 381

ss. 30—32 444

s. 33 .457

s. 34 456

s. 38 424, 434, 444

32 & 33 Vict. c. 14, s. 27 (Tlie Representation of the Peoples Act, 1868) 228,

239, 443
c. 23, s. 1 (Recorder. See Municipal Act, 1882) ... 9
0. 27, s. 7 (The Wine and Beerhouse Act, 1869) . 53, 56, 57

s. 8 50, 56

s. 11 53, 57

s. 20 . . . • 54, 66

s. 1 (The Sunday and Ragged Schools (Exemption

from Rating) Act, 1869) . . . .397
41 (The Poor-Rate Assessment and Collection Act, 1869) 443

s. 2 194

s. 3 427

s. 4 195, 427, 444

s. 5 . . . . . i . . .444
s. 13 249, 448

c. 40,

c.

s.

16 .

,

. ,

, ,

,

,

,

425

s.

17

, ,

, ,

,

^

384

s.

20 .

,

, ,

, ,

^

,

,

382

c.

53

s.

5 (The

Cinque

Ports Act,

1869)

,

52

c.

67

s.

3 (The

Valuation (Metropolis) Act,

1869)

.

.

444

s.

4 .

429,

444,

445

s.

8

,

,

,

,

450

s.

9 .

,

447

s.

10 .

,

,

,

,

447

s.

11

J

447

s.

14 .

,

,

,

,

447

s.

15

^

444

s.

18 .

,

,

,

,

447

s.

19

448,

450

s.

20 .

,

,

,

443,

448

ss.

22—42

447,

448,

449

ss.

23—26

,

^

.

448

s.

24

,

448

s.

26 .

,

,

,

,

448

s.

27

,

449

s.

28 .

,

,

,

,

449

s.

29

^

449

u.

32 .

,

,

,

448,

449

s.

33

',

450

s.

34 .

.

«

•

450

XCll

TABLE OF STATUTES.

PAGE

32 & 33 Vict. c. 67, s. 35

. . 450

s. 39

. 451

s. 40

. . 451

s. 41

. 451

s. 43

. . 451

s, 45 . . . ^

. 445—452

s. 47 .

. . 447

s. 51

. 445

s. 52

. . 446

s. 53

. 448

s. 54

. . 446

s. 55 .

. 446

ss. 56—58

. . 446

s. 66

. 452

s. 70

. . 448

s. 71

. 437, 452

s. 72 . . ,

437, 452

s. 73

. 453

c. 68, s. 3 (Evidence Furtlier Ainendiueut Act, 18(

59) . . 36

c. 71, s. 32 (Bankruptcy Act, 1869).

. 160

c. 81 (Volunteers)

. . 563

c. 112 (Adulteration of Seeds Act, 1869) .

. 28

s. 5

. . 28

s. 6

. 28

33 & 34 Vict. c. 29, s. 3 (Wine and Beer House Act)

. . 53

s. 5

. 88

s. 14

. . 57

c. 73, s. 12 (Turnpike Act, 1870) .

. 174, 176

34 Vict. c. 18 (Solicitors— J. P.)

. . 3

34 t 35 Vict. c. 31 (Trades Union Act, 1871)

. 561

s. 12

. . 561

s. 15

. 562

s. 16

. . 562

s. 18

. 562

s. 20. . . ...

. . 562

c. 32, s. 3 (Criminal Law Amend. Act) .

. 199

c. 41, s. 15 (Gas Act) ......

. . 273

s. 21

. 271, 273

s. 24

. . 273

s. 25

. 273

s. 34

. . 273

s. 35 . . . .

. 273

s. 38

. . 271

s. 46

7, 274

c. 56 (Dogs' Act)

. . 6

c. 110, 3. 6 (JMercLant Sliii>ping)

. 358

c. 112, s. 4 (Prevention of Crimes Act, 1871)

. . 196

s. 5 . . . . .

. 196

s. 7

. . 196

s. 10 i

58, 76, 78, 89

s. 15

. . 516

s. 17

. 196

35 & 36 Vict. c. 65 (Bastardy Laws Amend. Act)

. 29, 43

s. 3 . . . . ' .

. 29, 32, 42

TABLE OF STATUTES.

XClll

PAGE

35 & 36 Vict. c. 65 s. 4 . .

. 31, 34

s. 6 . >

. 34

s, 8

. . 46

sub-s. 5

. 46

s. 9

. . 48

c. 74 (Adulteration)

. 23

cJ7:::4}Ai.p-acc{ •.-.•.•

. . 159
. 159

c. 85, s. 13 (Highways) . . . .

. . 303

s. 15

. 303

c. 86, s. 7 (Borough and Local Courts)

. . 9

c. 92, s. 3 (Parish Constables Act) .

. 58

s. 15

. . 58

c. 93 (The Pawnbrokers Act, 1872) .

. 375

s. 6

. . 375

s. 7

. 376

s. 8

. . 376

s. 12

. 376

s. 13 . . . ■ .

. . 376

s. 14

. 376

s. 15

. . 376

s. 20

. 376

s. 23

. . 376

s. 32

. 377

s. 34

. . 377

s. 35

. 377

s. 36

. . 377

s. 40

. 378

s. 45

. . 378

s. 50

. 377, 378

s. 51

. . 378

s. 52 . '

. 376, 378

c. 94 (The Licensing Act, 1872) .

49, 57, 73, 87

s. 3

. 58, 66, 73

s. 5

71, 74, 88

s. 6

74, 88

s. 7

. . 74

s. 8

. 74

s. 9

. . 74

s. 10

. 75

s. 11

. . 75

s. 12

. 72, 85, 86, 115

s. 13 . .

. 75, 88, 170

s. 14

. 75, 86, 88

s. 15

. 58, 76

s. 16

. 76, 86, 88

8. 17

77, 86, 88, 170

B. 18 . . . . .

75, 86

s. 23

. . 78

s. 25

. 79, 82, 84, 86

s. 26

. . 78

s. 27

78, 86

s. 28

55, 79, 86, 88

s. 29 . . . .

. 66

s. 30

. 58, 89

xciv

TABLE OF STATUTES.

PAGE

35 & 36 Vict. c. 94, s. 31

^ ^

. 89

s. 32

.

, ,

. . 88

s. 33 .

^ ,

. 88

s. 34

. . 78

s. 36 ,

. * 56,

65, 67, 88, 89

s. 37

. 5.3, 54

s. 3S

, .

. 52

s. 39

. . 4, 51

s. 40 .

, ,

. 53, 54, 62

s. 42

55, 63, 109

8. 43.

, ' 55,

63, 64, 65, 69

s. 45

. 56, 64

s. 47

, ,

. 56

S; 50

54, 56, 59,

60, 61, 63, 67

s. 51 ,

, ,

70, 71, 76, 83

s. 52

. 71, 170

s. 53

^ ,

. 64

s. 55

. . 87

8. 56

, ,

65, 87, 89, 90

». 57

. . 88

s. 58

, ,

. 67, 88, 89

s. 60

. 51, 183

s. 64

^ ^

. 78

8. 70

. . 88

8. 72

, ,

. 54

8. 73

. . 58

s. 74

, ,

. 49, 58, 59

s. 75

169, 170

Sch. 2

^

^

^ ^

. 61, 67, 71

36 Vict. c. 9 (Bastardy Act Amend. Act, 1873)

. . 29

s. 5

, ,

32, 46

s. 7

. . 37

36 & 37 Vict. c. 38, s. 3 (The Vagrant Act Aniendm

ent Act, 1873) . 516

s. 5

, ,

. 516

c. 48, s. 3 (Regulation of Railways Ac1

, 1873)

. . 410

c. 66, s. 19 (Judicature Act, 1873) .

.

. 506

s. 45 ....

506, 533

c. 71 (Salman Fishery Act, 1873) .

.

. 251

s. 18 ....

251, 252, 254

8. 36, sub-s. 4 . . .

, ,

. 257

8. 39 ....

. . 253

s. 62 . . . . .

^ ^

. 258

37 & 38 Vict. c. 15, s. 3

. . 169

c. 45 (Hertford and St. Albans Act)

.

15

c. 49 (The Licensing Act, 1874) .

. 49, 70

8. 3

, ,

. 80

8. 5

. . 66

8. 6

, ,

. 80

8. 7 •

. . 81

s. 8

, ,

. 81

8. 9

. 79, 81

8. 10 .

.

■•

.

.

79, 80, 84, 86

s. 13 74, 75, 76, 77, 79, 85, 86

8. 14 85

8. 15 . . . . ■ . . . . 57, 65, 74, 85

TABLE OF STATUTES.

xcv

Metro.
Act)

137 & 38 Vict. c. 49, s. 16

s. 17 .

s. 18 ...

s. 19 .

s. 20 ...

s. 21 .

s. 25 ...

s. 26 .

s. 27 ...

s. 28 .

s. 29 ...

s. 30 .

s. 32 ...

c. 54 (The Rating Act, 1874)

s. 3 ,

s. 4 . .

s. 5 .

s, 6

s. 7 .

s. 8

s. 9 .

s. 10 .

s. 13 ...

s. 14 .
c. 67, s, 43 (Slaughter-Houses
c. 88 (Births, &c., Registration
38 Vict. c. 17, s. 4 (The Explosives Act, 1875) .
s. 5 ....
s. 6 . .
s. 9

s. 10 ...

s. 17 .

s. 22 ...

s. 27 .
s. 33 ...

s. 55

s. 73 ...

s. 93 .

s. 94 ...
s. 108 .
38 & 39 Vict. c. 36 (The Customs Consolidation Act

s. 67 . . .

s. 75

s. 222 .

s. 223

8. 227 .

s. 228

s. 231 .

s. 256

s. 257 .

s. 262

s. 261 .

s. 284 .
0. 54 (Justice of the Peace)
.c. 55. (Public Health Act, 1875) .

Act)

65

1875)

PAGE

. 85, 8Q
86, 88

. 66, 79
. 79

. . 79

55, 79

55

55, 63

. . 51
. 75

79, 88, 89
77

59, 60, 80
. 384
393, 417, 421
. 421
. 422
. 393
. 417
. 419
. 419
. 419
. 419
382, 421
. 100
. 29
. 244
. 244
. 244
. 244
. 244
. 245
. 245
. 245
. 245
. 245
. 245
. 245
. 246
. 246
. 261
. 239
. 238
. 238
. 234
. 236
. 236
. 234
. 234
. 234
. 238
. 238
. 233
3
. 505

XCVl

TABLE OF STATUTES.

38 & 39 Vict. c. 55, s. 6

s. 9

s. n

s. 25

s. 47

s. 56

s. 57

s. 60

s. 71

s. 72

s. 73

s. n

s. 75

ss. 76—85
s. 86
s. 88
s. 89
s. 91
s. 92
s. 93
s. 94
s. 95
s. 97
«. 98
8. 99
8. 104
8. 108
8. 112
s. 114
8. 115
s. 116
s. 117
s. 118
ss. 120-
8. 125
8. 126
8. 127
8. 128
8. 129
8. 139
8. 140
s. 144

130

283, 291

8. 145
8. 146
8. 182
8. 183
8. 186
s. 251
8. 256
8. 258
s. 266
s. 267
s. 269
c. 60- (Friendly Societies Act, 1875)

, 304

, 307

308

309,

313,

31i

506,

PAGE

. 286

. 286

. 506

. 506

. 506

. 398

. 398

. 506

. 507

. 507

. 507

. 507

. 507

. 507

. 507

. 507

. 507

. 507

. 508

. 509

. 509

. 509

. 509

. 509

. 506

. 509

. 510

. 510

. 510

. 510

. 510

. 510

. 510

. 510

. 510

. 510

. 510

. 511

. 511

. 511

. 511

319, 435,

449, 510

. 294

. 294

. 511

. 511

. 511

. 512
512

183, 512

. 512

. 512

524, 559

262, 562

TABLE OF STATUTES.

XCVll

38 k 39 Vict.

39 & 40 Vict.

VAOK

c.

60, s. 8

. 262

s. 14

. 263

sub-s. 3 .

. 263

sub-s. 4 . . . .

. 263

s. 16, sub-s. 9 .

. 264

s. 28

. 265

sub-s. 6 . . . .

. 264

sub-s. 7 . . . .

. 264

s. 30

. 265

sub-s. 3 . . . .

. 265

sub-s. 4 .

. 264

sub-s. 12 .

. 264

s. 32, sub-s. 1 . . .

. 264

sub-ss. 2, 3 .

. 265

sub-s. 8 . . .

. 264

s. 33

265, 332

sub-s. 5 . . . .

. 265

s. 39

. 265

c.

61, s. 25

. 198

£.34

456, 476

c.

63, s. 2 (Sale of Food and Drugs Act, 1
s. 3 . . . . .

875) .

. . 23
23, 24

s. 4

. . 27

s. 5

. 24

8. 6

. 24, 25

s. 7

. 25

s. 13

. . 26

s. 14

. 26

s. 18

. . 457

s. 20

• • ♦-

. 27

s. 21

. . 27

& 23

. 27

s- 24

. . 27

s. 25

. 24

s. 30

. . 23

s. 31 . . . .

. 23

c.

70 (The Chimney Sweepers Act)
s. 20

. . 159

. 187

c.

36 (Conspiracy and Protection to Prope
s. 3

rty Act)

. . 192
. 192

s. 4

. . 192

s. 5

. 193

s. 6

, . 193

s. 7

. 193

s. 8

. . 193

s. 9

. 193

s. 12

. . 193

s. 17

156, 157

c.

c

90, s. 12 (Employers and Workmen's J
22, s. 2 (Trades Union Act, 1876)

id)

. . 156
. 263

s. 3

. . 263

s. 16

. 263

s. 20

. . 266

s. 28

. 263

s. 39 . . • . .

. . 264

xcvnii

TABLE OF STATUTES.

39 & 4(r Yict.

c.

36, s. 36 (Excise)

PAGE

240

s. 37

, ^

240

s. 67 .

, ,

^ ^

239

s. 222

. .

238

s. 223 .

, ,

^ ,

234

s. 227

, ^

2B6

s. 231 .

. .

, ,

234

s. 233

,

234

s. 256 .

, ^

,

234

s. 257

, ,

234

s. 261 .

.

.

238

s. 262

. ,

238

c.

41, s. 34 .

> • •

^ ^

496

c.

45 (Provident Societies Act, 1876)

263,

332

'

s. 10, siib-s.

3

• • •

, ,

332

s. 12, sub-s.

10 .

. ,

332

s. 14, sub-s.

3

• • •

, ^

332

s. 18, sub-s.

3 .

, .

332

s. 19, sub-s.

6

• • •

^ ^

332

c.

61 (The Divided Parishes, &c., Ac

t, 1876)

. 29,

380

s. 20 .

. .

• . .

.

340

s. 25

...

• • •

198, 342,

465

s. 26 .

, , ,

• • •

. 337,

338

s. 30

• •..*«

, ,

399

s. 34 .

. 32, 456, 462, 463, 469, 476,

482, 487

495

s. 35

454, 462, 463, 464, 468, 472,

474, 485

486

s. 36 .

• •••••

, .

473

s. 44

• ••••«

456

c.

62 (Sale of Exhausted Parish Lands, 1876) .

,

281

c.

77 (The Better
1876) .
s. 2
s. 3
s. 6
s. 11
s. 13 .
s. 16
s. 21 .

Prevention of Cruelty to Anin

lals Act,

90
95
95
95
95
95
96
95

40 k 41 Yict.

e.

43 (Justices' Clerks' Act, 1877)

538

c.

65 (Fisheiy and
s. 2 .

Dynamite Act, 1877) .

•

258
215

41 & 42 Vict

c

15, s. 19 (Customs— Dog Licence)

239

c.

16, s. 90 (Factoiy and Workshop Act, 1878) .

551

c.

39 (Freshwater Fishery Act, 1878)

.

250

s. 5 .

. . • •

252

ss. 5—10

,,...,

, ,

251

s. 11

«•«•*•

250

s. 12 .

. • • • • •

. ' 215

, 258

c.

49, s. 19 (Weig
s. 20 .
s. 23
s. 25 .
s. 26
s. 27

bts and Measures Act, 1878)

•

566
567
567
567
567
567

s. 29

. • a

.

567

TABLE OF STATUTES.

XCIX

I'AfiB

n & 42 Vict. c.

49, s. 30 .

567

s. 31

567

s. 32 .

567, 568

s. 33

565

s. 40 .

565

s. 41

566

s. 42 .

566

s. 43

566

s. 44 .

566

s. 45

566

s. 50 .

565

s. 56

568

s. 58 .

568

s. 59

568

s. 60 .

568

c.

74, s. 32 (The

. Contagious Diseases (Animals) Act, 1878) 93

s. 33

97

s. 50 .

98

s. 60

97

s. 61 .

...... 97

s. 62

97

s. 63 .

93

s. 64

97

s. 66 .

97

c.

77, s. 3 (The

s. 4

284, 297, 307

s. 5 .

284, 307

s. 6

282

s. 7 .

295

s. 9

296

s. 13

292, 293

s. 14 .

292, 2i'3

s. 15

. . . . 292, 293

s. 17 .

293

s. 19

293, 295

s. 20 .

. . 293

s. 21

176

s. 23 .

330

s. 24

106, 304, 305

s. 25 .

283

s. 28

330

s. 37 .

134

s. 38

283, 287, 291, 292, 293

42 Vict. c. 9, s.

1 (Friendly Societies Amendment Act, 1879) . . 264

c. 11 .

.

. . . 216

42 k 43 Vict c.

19, s. 17 (Habitual Drunkards Act, 1879) . . .275

s. 23

274

s. 24 .

275

s. 25

275

8. 30 .

275

c

30 (Food and Drugs Act, 1879) 23

s. 2

24

s. 3 .

26

s. 6

25

s. 7 .

23, 25

TABLE OF STATUTES.

42 & 43 Vict. c. 30, s. 8

s. 10 ...

c, 49 (Sum. Juris. Act, 1879)

s.

1

s.

4

s.

5

s.

8

s.

15

s.

19

s.

20

8.

23

S.

31

s. 32

s. 39
s. 40
8. 41
s. 45
s. 46
s. 47
8. 48
s. 49
s. 52
s. 53
8. 54
s. 55

PAGE

25

27

115, 134, 165, 168, 185, 186

537, 550

240, 538, 539

. 21, 22, 71, 179, 271, 539, 553

214

122

21, 104, 170, 196, 215, 236, 518, 541, 542, 544,

548, 563, 564

538

299

21, 96, 98, 104, 105, 128, 187, 188, 196, 215, 266,

275, 276, 375, 378, 504, 505, 518, 538, 539, 542,

544, 547, 548, 549, 550, 552, 569

22, 28, 29, 96, 98, 105, 126, 128, 153, 179, 187,

188, 194, 196, 197, 210, 214, 215, 246, 262,

266, 270, 276, 281, 305, 375, 378, 504, 505,

542, 544, 547, 548, 549, 550, 555, 569

227, 228, 235, 239

. 137, 161, 181, 451, 524, 560
. 237, 238

538

. 234, 538

512

538

240, 241

537

. ' . 135, 241, 504, 537, 539

42, 48, 537, 549

55

sub-s. 2 504

c. 54 (Poor Law Act, 1879) 382

c. 78 (The Judicature Act, 1879) 181

s. 5 187

c. 93 (The Highways Accounts Return Act, 1879) . . 281

s. 14 289

43 & 44 Vict. c. 7 (Valuation liretro. Act, 1880) 429

c. 9 (Definition of Time Act, 1880) 555

c. 19, s. 39 (Taxes Management Act, 1880) . . .431
c. 24, s. 105 (Excise— Evidence) . . . . 228, 239

c. 20 (The Pcor Rate Assessment Act, 1869, Amendment

Act, 1882) 302, 316, 388

s. 3 . . 425

s. 4 381, 384, 429

c. 27, s. 4 (Highway Kate, &c. Act, 1882) . . .429
c. 50 ('I'he ^lunicipal Coiporations Act, 1882 . . . Add.
c. 58 (Tiie Divided Parishes and Poor Law Amendment
Act, 1882) Add.

45 & 46 Vict.

ADDENDA.

Page 7, For reference to " E. v. Allen,'' read " 33 L. J. M. C. 98."

„ 8, Note— 5 & 6 Will. 4, c. 76, is repealed by the Municipal Act, 1882,
45 tfc 46 Vict. c. 50 ; and sec. 103 of the former Act, is re-enacted
in sec. 163 of the Act, 1882 ; and sec. 105 of the former Act is re-
enacted in sec. 165 of that of 1882.

„ 9, Note— 6 k 7 Will. 4, c. 89, is rej)ealed by the Municipal Act, 1882,

' and sec. 8 of the former Act is re-enacted in sec. 166 of the latter

Act.

,, 13, Note — The jurisdiction of the county justices in boroughs is now
defined by the Municipal Act, 1882, sec. 154. By sub-sec. (1),
where the borough has not a separate court of quarter sessions, the
county justices may exercise tlieir jurisdiction therein as in the
county. By sub-sec. 2, no part of a borough having a sepai"ate
court of quarter sessions will be within their jurisdiction, exercise-
able out of quarter sessions, where the borough was exempt there-
from before the passing of the Municipal Act, 1835.

,, 14, ^0 5 & 6 Will. 4, c. 76, s. 58, note — But see now the Municipal Act,
1882, s. 164; n. {a) foi^ "Bridge" read "Bing."

,, 15, Note — to 5 & 6 Will. 4, c. 76, s. 105, repealed ; see note, supra, p. 8.
In note {a), for "58," read "Iviii. f for *'10i," read "civ. ;"
fm- " Hereford," rmrf "Hertford."

„ 20, linel, /or "134,"re'af? "124."

,, 36, line 7, dele ^' probandV

,, 37, to ''Hodges v. Bennett," add "39 L. J. M. C. 224."

,, 44, to the "appeal" clause, add "seei2. v. Montgomeryshire, 51 L. J.
M. C. 95."

,, AQ, side-note— for "15," read "to the." Read third side-note — "On
guardians' order — right of appeal." In third paragraph, read
"statute, 36 Vict. c. 9, s. 5." In last side-note fm' "appeal,"
read " order."

,, 51, Note—Q & 7 AVill. 4, c. 105, is repealed by the Municipal Act, 1882,
1st schedule. By sec. 248 of that Act the Cinque Ports justices
will, after December 31, 1882, have jurisdiction to act in the grant-
ing of alehouse, &c., licences, within any of the corporate and non-
corporate members and liberties of the five cinque ports, not
being within a borough having a separate commission of the peace.

„ 52, line I, for " 1881," ?'e«6^ "1811 ;" line 8, for "61," read "36."

,, 53, line 13, for ''were,'' read "have been."

„ 57, line 29, for "1826," read " 1828."

„ 60, line 1, for " 1829," read " 1869."

Cll ADDENDA.

Page 62, last line, for "8," read " 3."
,, 69, rcaof reference to "i2. v. Belton, 11 Q. B."
„ 73, line 8, to *'50 L. J. M. C," add "95." Last line, /or «*319,"

read "olQ."
., 77, line 7, /or "98," read " 89."
„ 86, sec. 6, /or "1876," read "1874."
„ 107, Note to 5 & 6 AVill. 4, c. 76, s. 92— See the Municipal Act, 1882,

s. 144.
„ 115, /or "Sullifant,"re^ "Sillifant."
„ 116, to "17 Geo. 2," read "c. 38."
,, 143, to " Licensing Act, 1828," read " ss. 27-29 ;" for " Bolton'' read

''Belton ;" <o "36 Geo. 2," 'rea<^ "c. 14."
„ 153, line 13, /or "38," L.J., rmrf "31."
„ 156, read "54 Geo. 3, c. 96."
„ 169, line 13, read "Morant v. Taylor'' ; line 17, read "11 & 12 Vict.

c. 43."
„ 171, Borough Bate. Kote—h k 6 Will. 4, c. 76, s. 92, is repealed by The

Municipal Act, 1882, and is re-enacted in sec. 144 of that Act.

The appeal "will be under sec. 144, sub-sec. (9), and the recorder is

directed to finally determine the appeal by sub-sec. (10) ; the costs

are at his discretion under sub-sec. (11).
„ 184, to "A'. V. Kent," read " L. R. 8 Q. B. 305."
„ 189, last paragraph, for " 647," read. " 64."
, , 223, /o?' ' ' Berlow, " read ' ' Bierlow. "
,, 225, to third side-note add "evidence."
,, 238, /or "council," read "counsel." To "i2. v. JFoodrow," read "16

L. J. M. C. 122."
,, 240, third side-note — for "Convictions," read "Dismissal on merits."
„ 269, line 21, read " 33 Hen. 8, c. 91."
,, 321, last side-note — to "even if," add "no."
„ 322, /or "7," read "4 A. & E."

,, 342, last paragraph, read 39 & 40 Vict. c. 61 ;— 11 & 12 Vict. c. 110.
,, 343, line 22, to " 24 & 25," add "Vict."
„ 344, line 28, read 16 & 17 Vict. c. 97.
,, 374, Note — The appeal sec. against a borough rate is now sec. 144 — The

Municipal Act, 1882 (see supra, note to page 171).
Note to 4 & 5 Will. 4, c. 76, s. 127. The limit of time for the prosecu-
tion is now six months instead of three. — The Municipal Act, 1882,

s. 219, sub-sec. (1).
„ 375, to "appeals against convictions," add " But now the appeal will be

under sec. 31, Sum. Juris. Act, 1879."
,, 382, Note to, " As to the adjustment of the boundaries of parishes," add
"see also The Divided Parishes Act, 1882, 45 & 46 Viot. c. 58,

s. 2."
,, 383, /or "JR. v. Glo2icestershire," read "i?. v. Gloiicester."
,, 439, last side-note— /or "obligations," read "objections."
,, 442, last paragraph, read 17 Geo. 2, c. 38, s. 4.
,, 464, for " 8 A. & E." read "2 A. & E."
,. 517, Clause 3, after " And by sec. 10," add "as to."
„ 521, to "A. V. /Sussex," read " 1 M. & S. 734."

„ 538, To note {b), add <o "5 & 6 Will. 4, c. 76, s. 102," "see now The
Municipal Act, 1882, s. 159."

The following rules of practice are in force at the Kent Sessions. The first
has reference to the entry and respiting appeals at those sessions, and is of

ADDENDA. ClU

general application to all parties having appeals against orders of removal
triable in Kent. Tlie rnle is dated October 20, 1859 : —

Ordehed, —

That the practice of entering and respiting appeals against
orders of removal upon motion us of course at the sessions next
after the service of the order of removal, be discontinued, and that
the practice in future be as follows : —

Tliat as a general rule, appeals against orders of removal shall
not be allowed to be entered and res[>ited upon an application ex
parte the appellant, without the consent of the respondent, in
cases where the notice of appeal shall have been given twenty-one
days befoie the sessions ; but in case such notice shall have been
given within the period of twenty-one days, that the appellant
shall be allowed to enter and respite such appeal on a motion as
of course, and that in case the said period of twenty-one days shall
have intervened between the service of the notice and the sessions,
and the appellant shall intend to ap]dy to the court for leave to
enter and respite the appeal, the appellant shall give notice to the
respondent of such intention and the grounds thereof, and the
court w'ill thereupon take into consideration any special grounds
which may be shown why the court should allow the appeal to be
entered and respited, and upon what terms as to payment of costs
to the respondent or otherwise.

The second series of rules regulate the proceedings to be observed on the
confirmation of new licences under the Licensing Acts ; and for the declaring
a district to be a populous place.

Rules.

The following rules, made by the court of quarter sessions of
the peace for the county of Kent, are in force in East and West
Kent.

The clerks to the licensing justices of the county shall transmit
forthwith to the clerk of the peace every new licence or order for
removal of a licence granted by the licensing justices requiring
confirmation, together with any documents left with them tliat
have been used in support of the application for such licence or
order.

Any person who, having opposed the original grant of a licence,
intends to oppose its confirmation, shall, within seven days after
such gi-ant, give notice in writing to the applicant and to the clerk
of the peace of his intention to oppose, and shall state in such notice
the grounds of his opposition.

Every applicant for confirmation of a licence shall appear in
person before the said court of confirmation, unless his absence be
excused by such court on good grounds.

The proceedings of the county licensing committees shall be
regulated according to the ])ractice of the court of quarter sessions,
except that solicitors, appearing for their own clients only, shall be
heard before such committees ; but no solicitor shall appear under
instructions from another solicitor.

A county licensing committee shall not, without good reason
proved to their satisfaction, hear any person on the merits of an
application for an order to declare any district to be a populous

CIV

ADDENDA.

place or part of a town, unless such person shall, three weeks at
least before the hearing, liave given notice in writing to the clerk
of the peace of his intention to make such application, and shall
have deposited with the clerk of the peace, for the use of the com-
mittee, a copy of the ordnance map on a scale of 25 '344 inch.^s to
the mile (where it exists), with a line drawn upon such map
showing the exact boundary of the proposed populous place or part
of a town.

Every person who intends to apply to a county licensing com-
mittee for an order under "The Licensing Act, 1874," to declare
a district to be a populous i)lace or part of a town, shall, at least
three weeks before the hearing of such application, advertise his
intended application in some newspaper usually circulating in such
district, and shall also give three weeks notice in writing of such
intended application to the superintendent of the county police
acting in the said district, and to one of the overseers of the poor
of the parish which comprises the whole or the larger part of the
said intended district ; and also within twenty-eight days before
such hearing cause a like notice to be affixed and maintained
between the hours of 10 a.m., and 5 p.m. of two consecutive
Sundays, on the principal door or one of the doors of the church
of such parish, or, if there be no such church, on some other public
and conspicuous place within such parish.

F. RUSSELL,

Clerk of the Peace for Kent.

Sessions House, Maidstone,
nth AugiLst, 1882.

A

QUAKTEE SESSIONS
VADE MECUM

IN APPELLATE AND CIVIL CASES.

PART I.

The Constitution of the

Court.
The General Jurisdiction.
The Members of the Court.
The Justices.

The Recorder.
The Clerk of the Peace.
The Meeting op the Sessions.
Preliminary Proceedings.
The Adjournment.

The Constitution of the Court of Quarter Sessio7is.

The Court of Quarter Sessions has all the rights and
privileges of a court of record. It is holden before at least
two justices of the peace, of whom one was formerly re-
quired to be of '''the quorum/' but, in the present day, all
the justices are, by their commissions, included in the
quorum clause ; and the court will be legally constituted by
the presence of any two justices qualified to act within the
limit of its jurisdiction (a). See H. v. Llangiare, 4 B. & S.
249 j 32 L. J. M. C. 225. The court will meet within the
limits of its jurisdiction as appointed by the commission of
the justices, and the statutes referred to in their charge.
Lambert, Eirenarcha, 378 (1610) ; Dalton, 13, 511 (1697) ;
2 Hawk. P. C. 18 ; R. v. Worcester J J., 2 B. & A. 228.

In Middlesex the Court of Sessions is specially consti-
tuted under 7 & 8 Vict. c. 71 ; 14 & 15 Vict. c. 55 ;
22 k 23 Vict. c. 4 ; 24 & 25 Vict. c. 101, and may be

(a) The jurisdiction must ap-
pear on the face of each record ;
the minutes made by the Clerk

of the Peace will not be sufBcient
a. V. Smith, 8 B. & C. 341.

2 CONSTITUTION OF COURT OF QUARTER SESSIONS.

held before the assistant judge alone ; but whenever any
other justice is present the assistant judge is only as one of
the court, and, although still the presiding judge, has only
a joint jurisdiction with his fellow justices. B. v. Middle-
sex J J. ; in re Slade, 2 Q. B. D. 516 ; 46 L. J. M. C. 225 ;
36 L. T. 402.

Cities and boroughs having a separate court of quarter
sessions, have as the sole presiding judge, the recorder,
under appointment by the Crown, and not as, prior to the
Corporation Reform Act, by the corporation. See 5 <k 6
Will. 4, c. 76, s. 105. Before the Corporation Reform Act
the Recorder was merely the legal assessor of the court,
the courts being composed (in most cases) of the mayor,
the recorder, the ex-mayor, and senior alderman. In Lon-
don, at the present time, the Lord Mayor and the Court of
Aldermen are members of and preside at the Central Crimi-
nal Court, which is founded on the ancient City Sessions
Court.

The commissions of the peace date from as early as
Edward L's reign (1326-1330) — a sovereign, who, from his
many improvements in the law, was styled the English
Justinian, and of whose laws Sir E, Coke speaks as being
*' more constant, standing, and durable, than any made
since" (Institute, 156); "so that," Sir Matthew Hale re-
marks, " the mark or epooha we are to take for the true
starting of the law of England, what it is, is to be con-
sidered, stated and estimated, from what it was when King
Edward left it." (Hale, His. Com. Law, 158, 163.) Prior
to the Stat, of Edw. there were no justices of the peace
within the realm, but only conservators of the peace. Dal-
ton, 6, 20 (1697).

The 1 Edw. 3, c. 16 was passed for the better keeping
and maintaining of the peace, and for the appointment in
every county of " good and lawful men that were no main-
tainers of evil or barrators to keep the peace." In
4 Edw. 3, c. 2, and 18 Edw. 3, St. 2, c. 2, further
powers were given to the justices, but their commissions
were confined to the bare keeping of the peace. Lambert,
Eirenarcha, 20-23 ; the general standing authority " to hear
and determine ^^ was not given until a.d. 1360, 34 Edw. 3,
c. 1, an Act entitled " what sort of persons shall be justices
of the peace, and what authority they shall have." They
were then first commonly reported as "justices of the
peace," and made, as Lord Holt said, " complete judges."
See Harcourt v Fox, 1 Show. 528 ; 2 Finlason's Reeve's

CONSTITUTION OF COURT OF QUARTER SESSIONS. -^

His. Eng. Law, 329-331; also, 36 Edw. 3, St. 1, c. 12,
when it was enacted, " that in every county there should be
assigned for the keeping of the peace a lord, and with him
three or four of the most worthy in the county, ivith some
learned in the laiv."

By 18 Edw. 3, c. 2, 34 Edw. 3, c. 1, and 17 Rich. 2,
c. 10, two lawyers (at least) were assigned in every county
to hear and determine felonies and trespasses done against
the peace. Dalton (9 ed. 1697).

In the twentieth year of King Edw. 3rd, the Commons had
prayed that they might have the power to hear and deter-
mine felonies, when it was answered that the king would
appoint learned persons for that office. Pari. Pet. 20 Edw. 3,
c. 29 ; 2 Fin. Reeve's His. Eng. Law, 330.

The Stat. 1 Edw. 4, c. 2, took away from the Tourn, the
ancient criminal court of the Saxons, the power to " hear
and determine," and transferred it to the quarter sessions :
and " thus did the quarter sessions arise in consequence
upon the destruction of the Tourn." 3 Fin. Reeve's His.
Eng. Law, 6-11.

The form of the commission to the justices was settled by
conference of the judges in M. T. 1590, in nearly the form
at present in use. The second assignavimus runs : " Vos et
quoslibet duos vel plures vestrum quorum aliquem," &c.
See Lambert's Eirenarcha (1610 ed.), p. 378 ; (1602 ed.),
p. 364 ; Dalton, Office of Justice (1679 ed.), p. 16-18. See
also, as to the Trailsbaston, and first commissioners of
oyer and terminer, 2 Fin. Reeve's His. Eng. Law, 169, 304,
328.

As to the present appointment of a justice of the peace
for counties, see 34 Vict. c. 18, repealing 6 & 7 Vict. c. 73,
s. 3, and 5 Geo. 2, c. 18, s. 2, which disqualified practising
attornies, solicitors, and proctors, from being justices. And
as to the pecuniary qualifications, see 38 & 39 Vict. c. 54,
ss. 1, 2.

Formerly, under 12 Rich. 2, c. 10, the justices received
^^ wages" of four shillings a day for attending sessions;
by 14 Rich. 2, c. 12, no duke, earl, baron, or banneret,
was entitled to "wages." These "wages" continued
up to 18 & 19 Vict. c. 126, when they were (s. 21)
abolished, and 12 Rich. 2, c. 10, 14 Rich. 2, c. 12, or
any Acts in force authorising such payments, were so far
repealed.

By 26 & 27 Vict. c. 97, the Local Board of any city or
place (not being a municipal corporation), wherein the

B 2

THE GENERAL JURISDICTION OF THE COURT.

Public Health Act, Local Government Act, or Local Im-
provement Act is in operation, and comprising a population
of 25,000 persons, but not included in any district for
which a stipendiary magistrate is acting, may (sec. 3) by
a majority of two- thirds of the number of the Local Board
thinking it expedient that a stipendiary magistrate should
be appointed to act within such locality by a bye-law, fix
the salary which such magistrate shall receive (subject to
the approval of a secretary of state), and thereupon on the
transmission of such bye-law to the Secretary of State, he
may appoint a barrister-at-law, of not less than five years'
standing, as such magistrate (a).

By sec. 5, the stipendiary magistrate so appointed,
although not qualified by estate, and not disqualified by
law to act as a justice of the peace for any other cause, may
sit and act as a justice of the peace within his jurisdiction
on all matters where one or more justices either alone or
together could act. But no such magistrate can act as a
justice of the peace at any court of gaol delivery, or general
or quarter sessions, or in the making of any county rate or
rate, in the nature of a county rate. But by the Licensing
Act, 1872 (35 & 36 Vict. c. 94, sec. 39), beyond the limits
of the metropolitan police courts jurisdiction, a metro-
politan police or stipendiary magistrate may act as one of
the justices empowered to grant or confirm licences so far
as regards any licensing district, wholly or partly within
his jurisdiction. The metropolitan magistrates are justices
in the several counties into which their jurisdiction extends,
but have only their special jurisdiction to act alone when
acting within the area of the metropolitan district.

The General Jurisdiction of the Court.

The Court of Quarter Sessions has two divisions of
juridical jurisdiction : it is a court of appeal on orders and
convictions made by justices acting in special or petty
sessions ; and it also has an extensive jurisdiction as a court
of oyer and terminer in criminal cases.

The court has also jurisdiction over the local govern-
ment of the county, as '' The County Authority." See
41 & 42 Vict. c. 77, s. 38.

(fl) On each vacancy occurring a new bye-law is requisite.

THE MEMBERS OF THE COURT — THE JUSTICES.

As regards the criminal jurisdiction of the quarter sessions,
see 5 & 6 Vict. c. 38, s. 1, defining what shall 7iot be within
its jurisdiction.

The Members of the Court — The Justices.

All the justices holding a commission of the peace in the
county (a) ; the recorder, or his deputy, in a borough ; or
in Middlesex (b), the assistant judge alone, or such judge
with any of the county justices, or a quorum of justices
— constitute the members of the respective courts of quarter
sessions.

There must be excepted, however, from this general
statement such justices as may have a personal interest in
the matter to be inquired into by the court ; and in such
case the mere presence (R. v. Suffolk, 18 Q. B. 416 j 21 L. J.
M. C. 169) of the interested justice on the bench with the
other justices, although he may take no part in the decision,
would vitiate the whole proceeding : 16 Geo. II. c. 18, s. 3;
JR. V. Cheltenham Commissioners, 1 Q. B. 475 ; R. v. Herts,
6 Q. B. 753; R. v. Gi-eat Yarmouth J J., 51 L. J. M. C.
39 ; 8 Q. B. D. 525. The extent of the interest is im-
material when pecuniary. R. v. Rand, L. R. 1 Q. B. 220 ;
35 L. J. M. C. 157; Wahefield L. B.H. v. W. R. & Grimsby
Railway, L. R. 1 Q. B. 84; 35 L. J. M. C. 69; R. v. Cam-
bridge Recorder, 2 E. & B. 607; 27 L. J. M. C. 160 ; R. v.
Yarpole, 4 T. R. 71 ; i2. v. Myers, ] Q. B. D. 173 ; 34 L. T.
247 ; R. V. The Dean of Rochester, 20 L. J. Q. B. 467 ;
17 Q. B. 1.

Lord Campbell, in R. v. Suffolk (sup.) strongly censured
the conduct of a justice who remained on the bench when
an appeal was being heard against a rate in which he
was interested as a ratepayer ; and remarked that, " if the
justice had done his duty, he would at once have volun-
tarily withdrawn from the coui-t." See also R. v. Herts
{sup.).

By the Union Assessment Act, 1864, 27 & 28 Vict. c. 39,
s. 6, a justice is not disqualified from acting on an appeal
against a 2^oor rate in which he may be interested. This

(^a) A SherifE cannot act as a M. C. 108.
justice during his year of office (J) See R. v. Middlesex JJ.,

in financial matters, county busi- 2 Q. B. D. 516 ; 46 L. J. M. C.

ness, or criminal questions : Exp. 225 ; 36 L. T. 402.
ColvilU, 1 Q. B. D. 133 ; 45 L. J.

THE MEMBERS OF THE COURT.

I

provision does not, however, apply to an appeal against the
Valuation List, nnder 25 & 26 Vict. c. 103, s. 32. As to a
waiver of the objection, see The Wakefield L. B. H. v. The
W. R. d: Grimsby Baihvay {s7ip.).

So, of course, justices against whose decision an appeal is
made, cannot be members of the court.

Where, however, a justice is a member of a public board,
or of a local authority, although liable, in common with
others, to contribute to, or be benefited by, the local fund,
he may still form one of the court. See JR. v. Millidge^
4 Q. B. D. 332; 48 L. J. M. C. 139; 40 L. T. 748. Where
justices were members of a town council, and had as such
taken part in making an order under the Dogs Act, 1871,
34 & 35 Vict, c. bQ, they were held to be not disqualified
from acting as justices on a summons under the order, on
the ground of the interest they had taken in promoting the
order. R. v. Huntingdon J J., 4 Q. B. D. 522.

The fact of a justice having made an affidavit in an
action, expressing an opinion in favour of one view, which
was to some extent involved in the contest under the
summons, was held not to be sufficient to oust the jurisdic-
tion of the justice to hear the summons. R. v. Alcock,
Chilton, Ax p., 37 L. T. 829, Q. B. D.

But if he be himself a litigant before the court, and
sit amongst the justices, the proceedings will be void,
although he take no part in them, and has not signed
the conviction: R. v. Myers, 1 Q. B. D. 173 ; 34 L. T.
247 ; 24 W. R. 392 ; or should he be a litigant in a similar
matter. R. v. Great Yarmouth J J,, 8 Q. B. D. 525 ; 51 L. J.
M. C. 39.

Where a member of a local authority authorising a pro-
secution is also a justice of the peace, such justice cannot
assist at the hearing of the summons, as he would be
practically hearing a prosecution in which he w^as also the
prosecutor, and have such an interest as might lead to a
bias in the matter. R. v. Millidgey 4 Q. B. D. 332; 48
L. J. M. C. 139; 40 L. T. 748.

In the case of a charge made against a clerk of the peace
for misbehaviour in his office at the instance of the justices,
the justices in general sessions were held by Willes, J., and
the Court of Common Pleas, not disqualified from adjudi-
cating on the charge, although they were both prosecutors
and judges ; R. v. Russell, L. R. 1 C. P. 740. That would
be probably the only instance in which such a decision could
he made^

THE JUSTICES.

Under the Highway Act, 1862 (25 & 26 Vict. c. 61),
s. 38, no justice of the peace can act as such in any matter in
which he had acted as a member of the board whose decision
was appealed against. Bat by the Highway Act, 1864 (27
& 28 Vict. c. 101), s. 46, a justice is not disabled from acting
as such in any matter in which the board may be concerned,
merely on the ground that he is hy virtue of his office a
member of the board, or has acted as such at any meeting of
the board. By sec. 9 (Act 1862) the justice, to be qualified
to act as an ex oficio member of the board, must reside in
the highway district ; the having a place of business only
in the district will not qualify him as "residing." The
justice might, when not " residing " within the district, be
elected as an ordinary member of the board ; in such case he
would be excluded from acting in any judicial matter affect-
ing the interest of the board under the above sections. A
sheriff, although residing in the district, cannot be an
ex officio member of the board, he being disqualified to act
as a justice by 1 Mary, Stat. 2, c. 3, s. 8.

Under the Salmon Fishery Act, 1865 (28 & 29 Vict. c.
121, s. 61, a justice is not disqualified as such, by reason of
his being a member of, or a subscriber to, the fishery board,
unless the offence, the subject of appeal, was committed on
his own land : prior to that Act he was disqualified. J?. v.
Allen, 4 B. & S. 915 ; 33 L. J. M. C. 243. (See the Salmon
Fishery Act, 1861.) The liability to the payment of gas
rent, or other gas charge, will not disqualify him from
acting under the Gas Works Act, 1871 (34 & 35 Vict. c.
41, s. 46). And as to the disqualification of a justice under
the Intoxicating Liquors Licensing Acts, see 35 & 36 Vict.
c. 94, s. 60 ; but by sub-sec. 1 (s. 60), to create the disquali-
fication, he must have vested in him a henefcial interest in the
premises to be licensed ; a mere legal interest will not dis-
qualify him.

A justice, being an ex oficio guardian, is not disqualified
from adjudicating in a matter in which the guardians are
interested, 5 & 6 Vict. c. 57, s. 15 ; so also in the case of
a trial of an offence arising under an Act to be put in exe-
cution by a municipal corporation or local board of health
(see supra), or improvement commissioners or trustees, or
any other local authority, by reason only of his being as one
of several ratepayers, or as one of any other class of persons,
liable in common with the others, to contribute to or to be
benefited by, any fund to the amount of which the penalty
payable in respect of such offence is directed to be carried.

8 THE RECORDER AND HIS COURT.

and in dimiuutiou of which such penalty will go. 30 & 31
Vict. c. 115, s. 2.

In any case where the justice is the complaining party, or
the one instituting the proceedings at the board, he cannot
act as a member of the court. R. v. Weymouth, 48 L. J.
M. C. 139.

Where the justice has acted as a member of a highway
board; see the Highway Acts, 1862, s. 38; Act, 1864, s.
46 ; R. V. Cumberland, 42 J. P. 361.

Where an order of Quarter Sessions has been made, and
any justices have composed the court who were disqualified
by interest, the order, on removal by certiorari, will be
quashed. R. v. Siiffolk, 21 L. J. M. C. 169 ; 18 Q. B. 416 ;
R. v. Hopkins, E. B. & E. 100 ; R. v. Allen, 4 B. & S. 915 ;
33 L. J. M. C. 98 ; R, v. Millidge, 4 Q. B. D. 332 ; 48 L. J.
M. C. 139; 40 L. T. 748.

The Recorder and his Court.

The Recorder of a borough having received his appoint-
ment from the Crown under the Municipal Corporation Act,
1835 (5 ik 6 Will. 4, c. 76), s. 103, is to hold once in every
quarter of a year, or at more frequent times if he thinks fit,
or the Crown may direct, a quarter sessions of the peace in
and for such borough ; and of which court he will " sit as the
sole judge" (i6. sec. 105). Such court will be a court of
record, and the recorder will have cognizance of *' all crimes,
offences, and matters whatsoever cognizable by any Court of
Quarter Sessions of the Peace for counties in England ; " and
" have power to do all things necessary for exercising such
jurisdiction, notwithstanding his being such sole judge, as
fully as the last-mentioned court."

The section provides as the only exceptions to this juris-
• diction that " no recorder, by virtue of his ofiice, shall have

power to make or levy any county rate, or to grant any
licence or authority to any person to keep an inn, alehouse,
or victualling house, to sell exciseable liquors by retail ; or
to exercise any of the powers vested in the council of the
borough "(a).

(a) Section 107 abolished all was in 1815, of which a record

capital jurisdiction which some of appears in the case M. v.

the old cities had by their char- ThomaSj 4 M. fc S. 442, where the

ters. Probably the last instance indictment found at the Roches-

of a prisoner being under a ter Sessions was removed into the

capital charge at a borough court K. B. by certiorari and tried on

I

THE RECORDER AND HIS COURT. 9

In the absence of the recorder, or his deputy, the mayor
may open and adjourn the Court of Sessions. (S. 106.)

In case of sickness or unavoidable absence, the recorder,
under his hand and seal, may appoint a deputy recorder,
being a barrister of five years' standing, to act for him at the
quarter sessions then next ensuing and not longer or other-
wijse. But such sessions will not be deemed illegally held by
reason of the recorder's absence not being deemed "unavoid-
able." 6 & 7 Yict. c. 89, s. 8.

This power to appoint a deputy is extended to recorders
who are judges of local courts of record, and upon such an
appointment notice thereof is to be sent to the Home De-
partment with the reason why such appointment had become
necessary : 32 & 33 Vict. c. 23, s. 1. See also 35 & 36 Vict.
c. SQ, s. 7, giving the power to a judge of any local court of
record to appoint a deputy, being a barrister of seven years'
standing ; but this will not interfere with the previous
statute. 32 & 33 Vict. c. 23, s. 1.

Much discussion has from time to time taken place on the
extent of the recorder's jurisdiction under the Municipal
Corporation Act (1835), s. 105.

The first case in which the question of jurisdiction arose
was, R. V. Gloucestershire JJ.^ 4 A. & E. 689. In that case
an order of two justices of the County of Gloucester had been
made under the provisions of the Highway Act, 55 Geo. 3,
c. Q^, s. 2, to stop up a highway alleged to be in that county:
the preliminaries having been complied with, it was required
" that such order, at the quarter sessions which shall be held
within the limit where the highway, &c., so diverted, &c.,
shall lie, next after the expiration of, &c., be retiirned to the
Clerk of the Peace in open court, and lodged with him ; and
such order shall at such quarter sessions be confirmed, and
by the Clerk of the Peace enrolled amongst the records of the
said Court of Quarter Sessions."

No appeal had been instituted under the writ of ad quod
damnum under sect. 3 of 56 Geo. 3, c. 68, which was requi-
site for the foundation of an appeal at that time ; and, there-
fore, under the 4:th sect, it became imperative on the court

the Civil side at the Assizes at the library at the Crown office,
Maidstone. The indictment was it appears that the point re-
tried before Bayley, J. The served was never argued, and
prisoner was fonnd guilty subject the prisoner received a free
to a p jint reserved. From a pardon.
MS. note to R. v. Thomas in

B 3

10 tHE KECORDER A^D SIS COURT.

of the " Limit " having jurisdiction in the matter, to eonfirm
the order of the justices (a).

The proceedings in th^t case had all taken place subse-
quently to the 9th September, 1835, on which day the 5 & 6
Will. 4, c. 76 (the Corporation Keform Act) became law.
And it may here be noticed that the Highway Act of the
same sessions (1835), although it had previously (30th
August) received the Royal assent, was not to come into
force until the 20th March following ; so that, for the six
months after the passing the Corporation Reform Act, the
Highway Acts, 13 Geo. 3, c. 78, and 55 Geo. 3, c. 68,
remained in force before they became repealed by efflux of
time, and the coming into operation of the Highway Act,
1835.

The highway in question was situate in the parish of
Clifton, which, before the Corporation Reform Act, was
within the county of Gloucester ; bat by the Parliamentary
Boundary Act, 2 & 3 Will. 4, c. 64, s. 35, scb. (0) 30, Chfton
was included within the limits of the County and City of
Bristol ; and was by sect. 7 of the Corporation Reform Act
included within its municipal boundary.

By sect. 8, 5 & 6 Will. 4, ch. 76, every place and precinct
which were included within the metes and bounds of any
borough or boroughs which were counties of themselves, as
provided by the Act, and none other, formed part of such
borough (6).

Upon an application being made to the Quarter Sessions
for the County of Gloucester to enrol and confirm the order
of the justices of the county, the court declined to do so, on
the ground that their jurisdiction had been taken away and
transferred to the Recorder of Bristol, under tiie Municipal
Reform Act, within the limits of whose jurisdiction the
highway lay.

On discharging a rule for a mandamus to the Gloucester-
shire justices to enrol the order. Lord Denman, C. J., said :
" We find the transfer of jurisdiction by the 7th and 8th
sections to be as complete as words can make it. We are,
therefore, of opinion that Clifton is now part of Bristol, and
not of the county of Gloucester."

No question was made in the case on the fact that Bristol

{a) In ejffiect the same as sec- in which it was held that an an-

tion 91 of the Highway Act, cient borough- market might be

1835. held within such limits although

(i) See The Mayor of Dor- outside the old limits of the

Chester v. Enson, L. R. 4 Ex. 335, municipal borough.

THE RECORDER AND HIS COURT, 11

was a county as well as a city. Under 55 Geo. 3, c. 68, the
order of the justices was to be enrolled at the sessions " of
the limit " wherein the highway to be stopped up, &c., might
lie, and no distinction was drawn, or could have arisen, on
the fact of Bristol being a county of itself, the term '* limit "
being the sole definition given of the jurisdiction in the
Highway Acts of Geo. 3. The like term, and with the same
application, is used in the Highway Act, 1835. See further
on this point, infra, tit. " Highways."

A somewhat similar point was considered in R. v. Hull
[Recorder), 8 A. & E. 63, under the Weights and Measures
Act, 1835, 5 & 6 Will. 4, c. 63, which was passed on the
same day as the Municipal Act, and which, unlike the High-
way Act, came into force at the same time. Hull was a
town and county; but, prior to May 1836, had no grant of
quarter sessions or a recorder. The justices for the borough
under sect. 17 of the Weights and Measures Act {a) had ap-
pointed one Oglesby inspector of weights and measures, and
directed him under sect. 25 to account for his fees to the
treasurer of the borough. In consequence of a doubt being
entertained, after the grant of the Court of Quarter Sessions
whether the Town Council or the recorder had jurisdiction
to order the borough treasurer to pay Oglesby's salary,
Oglesby applied to the recorder for such an order, and on
his declining to do so, a mandamus was moved for. On
making the rule absolute, Lord Denman, C. J., said : " The
effect of the sects., 101, 105, and 107 of stat. 5 & 6 Will. 4,
c. 76, is that the Court of Quarter Sessions in boroughs
where there is a recorder consists solely of the recorder.
The cases in which he is not to act are specified : all other
matters cognizable by a court of quarter sessions are within
his jurisdiction. The authority, therefore, of the magistrates
assembled in quarter sessions is merged in that of the re-
corder, except in the cases specified in the proviso of sect.
105."

R. V. aS'^. Lawrence, Ludlow, 11 A. & E. 170, again ques-
tioned the recorder's jurisdiction. In that case there was
an appeal against an order of the borough justices of Ludlow
to the overseers of the City of Hereford to pay to the over-
seers of St. Lawrence, Ludlow, the expenses of removing a
pauper lunatic, under 9 Geo. 4, c. 45, s. 38, to an asylum.
The question was whether or not the recorder of Ludlow

{a) This Act is repealed and weights and measures now rest
all matters relating to the with the Town Council.

12 THE RECORDER AND HIS COURT.

had jurisdiction to hear the appeal. Lord Denmaii, C. J., in
giving the judgment of the Court, said : " The appeal is given
by the 46 th section of the Act, and is to be to the quarter
sessions to be holden in the county where the matter of appeal
shall have arisen. The 61st section of the Act provides that
the word 'county' shall be deemed to include any town
corporate. Now the matter of appeal here was the order
made by two justices in the borough of Ludlow ; therefore,
reading the word 'county' as 'town corporate,' it seems
that the appeal is given to the borough sessions. But
whether this would or would 7iot he the case if the old corpora-
tion had continued, we have no doubt that it is so as the law
now stands."

And then his lordship added these important remarks : —
" The powers of the recorder as a court of quarter sessions,
are enacted by the 105tli sec. of 5 & 6 Will. 4, c. 76, and
give him cognizance of ' all matters whatsoever cognizable
by any court of quarter sessions of the peace for counties
in England,' among which unquestionably the present matter
is one."

We now come to four cases, in 1841, attacking the re-
corder's jurisdiction —

R. v. St. Edmund's, Salisbury , 2 Q. B. 71 ;
R V. Suffolk JJ., ]

R. V. Shropshire JJ., I 2 Q. B. 85.
R. V. Lancashire J J., )

These cases are also reported in 10 L. J. M. C. 138.
These cases arose on appeals under 8 & 9 Will. 3, c. 30,
8. 6, directing appeals against orders of removal of poor
persons to be heard " at the sessions for the county, and
not elseivhere"

Lord Denman, C.J., in giving judgment, said: — "The
Municipal Act gives to the city sessions all the jurisdiction,
and to the recorder all the power, that formerly belonged,
not to the quarter sessions of a town corporate, but to any
county quarter session. These words give the recorder,J;he
trial of all matters that could be tried at the county sessions :
the words, ' ayid not elsewhere,'' in the statute of Will, 3, being
contrary, are abrogated ; ' Leges posterioj^es priores contrarias
ahrogant (a).' "

(a) In dealing with the inten- B. — " The Parliament in William
tions of the Legislature, Lord the Third's time may be supposed
Denman remarked — p. 94, 2. Q. to address the borough justices of

THE RECORDER AND HIS COURT.

In E. V. jDeane, 2 Q. B. 96 ; JR. v. Gockhurn (a), Recorder
of Bristol, 4 E. & B. 265, S. C. eo iiom. R. v. Bristol
(Recorder), 24 L. J. M. C. 43, it was held that the recorder
has no jurisdiction to hear an appeal against a refusal to
grant an ale-house licence, which would be the same as
granting a licence.

In R. V. Deane, some reliance having been put upon
sec. Ill of the Municipal Act, Pattison, J., remarked, that
by that section "certain powers were there limited to such
boroughs as had a grant of quarter sessions ; but as the
non-intromittant clauses still remained in the charters of
some boroughs which had not such grant, it was necessary
that a power should be given to the county justices to act
in siicli boroughs. This was done by the 111th section, the
effect of which was, that where there was no grant of the
quarter sessions, the justices of the county should have juris-
diction, although the borough charter might contain the
non-intromittant clause. I do not know," added his lord-
ship, " what was the object of the latter part of the section ;
perhaps it may have reference to newly added poHions of
the borough ; but I think it applies only to the jurisdiction
of justices out of sessions." His lordship had previously
said {ib. p. 91), in R. v. Lancashire, " I think that sec. Ill
relates to the original jurisdiction of the justices, the juris-
diction of the borough sessions being regulated by sec. 105."
See also as to sec. Ill, ^. v. Bridgewater, 10 A. & E.
711.

the peace ; * we cannot trust you been for the first time given to

with this power. We take it a foreign body for the purpose of

from you, and authorise the supplying a deficiency of judica-

county justices of the peace to ture which the exclusion had

act in your place.' But the Par- caused."

liament of William the Fourth The principles on which the

holds the opposite language : — Parliament of William the Third

' We wish you to be restoied to in 1696-7 acted in excluding the

your jurisdiction of which you jurisdiction of the Borough Court

were deprived, and have taken as to appeals on orders of re-

efEectual means to prevent the moval, were fully carried out, as

abuse which led to the depriva- to the granting or dealing with

tion.' Since, then, the object is the licensing of alehouses, by the

directly re vereed, and the borough Parliament of William the Fourth

sessions empowered to act ; we in 1835.

cannot reasonably doubt that {a) Afterwards Sir A. Cock-

Parliament designed to put an burn, L. C. J.
end to that power which had

13

14 THE CLERK OF THE PEACE.

The Cleric of the Peace.

The Clerk of the Peace is styled iu the Year Book,
^^ Attornatus Domini Regis.'''

In counties he is appointed by the Gustos Rotulorum, 37
Hen. 8, c. 1 (a). Lambert, in his " Eirenarcha," p. 378, " he
is to enjoy his office so long as the Gustos Rotulorum keepeth
his place." See 37 Hen. 8, c. 1 j 1 W. & M. c. 21, ss. 5, 6 ;
and as to dismissal, see 27 & 28 Vict. c. ^^.

He is to be " an able person, learned and instructed in the
laws of the realm." He will attend the sessions as the
deputy of the Gustos Rotulorum^ and as the officer of the
court: Lamb. Eiren, 378 (Book 4, c. 3), ed. 1602; Dalton,
185 (ed. 1697).

He must execute his office in person or by sufficient deputy :
1 W. & M. St. 1, c. 21.

There is no objection to his holding a commission of the
peace in the same county, acting in both capacities : Forbes
V. Lloyd, 10 Ir. K. C. L. Ex. Ch. 552.

When a second court is formed (21 & 22 Vict. c. 73, s. 9)
the Clerk of the Peace is to appoint a proper person as his
deputy in that court ; and the court will make an order for
his remuneration.

Where a division of a county has had appointed to it an in-
dependent treasurer it then becomes as a separate county : see
the Highway Act, 1864, s. 3 ; and 41 & 42 Vict. c. 77, s. 38 ;
but no provision is made in the Acts as to the nomination of
a Clerk of the Peace for such new " county." See also the
Highway Act, 1862, s. 2.

In boroughs the Clerk of the Peace is appointed by the
town council : b k Q Will. 4, c. 76, s. 58. After appoint-
ment he is an officer of the Recorder's Court, holding his
office quam diu se bene gesserit, and subject to dismissal by the
recorder: R. v. Hayward, 31 L. J. M. C. 177; 2 B. & S.

(ji)] 37 Hen. 8, ch. 1, was re- following declaration as directed

pealed by 3 & 4 Ed. 6, c. 1, and by 1 W. & M. st. 1, c. 21. sec. 9 :

revived by IW. & M., St. l,c. 21. "I, A. B., do declare that I

As to the appointment of the have not nor will pay any sum

Clerk of the Peace in Lancashire, or sums of money or other reward

see Harding v. Pollvch, 6 Bridg. whatsoever, nor have given, nor

34 ; Harcourt v. Fox, 1 Show. will give, any bond or other

530 ; in Durham, see 6 & 7 Will. assurance to pay any money, fee

4 ch. 19 ; in Yorkshire and Ely, or profit directly or indirectly to

fcc, see 6 & 7 Will. 4, c. 87. any person or pei-sons whomso-

Upon his appointment the ever, for such nomination or

Clerk of the Peace will make the appointment."

WHEN QUARTER SESSIONS TO BE HOLDEN. 15

585 ; Reg. v. Cannarthen, 7 A. & E. 756. He cannot act as
clerk to the magistrates. As to the removal of clerks of the
peace, see 27 & 28 Vict. c. 65 ; also H. v. Russell, L. K. 1
C. P. 738 ; Wildes v. Russell, L. R. 1 C. P. 772 ; 7j?. v. Evans,
i Mod. 31 ; 1 Will. & M. St. I, c. 21, s. 6.

All writs of mandamus and certiorari may be served upon
the Clerk of the Peace on behalf of the justices as their
recognised officer : see 43 Eliz. c. 5.

When Quarter Sessions to he holden and where.

The times for the holding the County Quarter Sessions

are fixed by 11 Geo. 4 and 1 Will. 4, c. 70, s. 35, as follows,

namely : —

nith of October.

T xt, i? ^ 7 rj xi, ) 28th of December.
In i\iQ first week after the< qi f f m h

(24th of June.

The ''first week after " means the first fidl week; so that
should either of the above days fall on a Sunday, the sessions
could not be held before the Monday week following: 2 Hale,
P. C. 49. As to those times being directory only, see R. v,
Leicester J J., 7 B. & C. 6 ; 2 Hale, P. C. 50. By 4 <fe 5
Will. 4, c. 47, the April quarter sessions may be appointed
and held not earlier than the 7th March, nor later than the
22nd April, so that they might not interfere with the holding
the spring assizes.

Although it would be inconvenient that the quarter
sessions should be held in the same county or borough
during an assize, still there exists no law against it. Smith
V. R. 13 Q. B. 738 ; 18 L. J. M. C. 207.

The borough quarter sessions are to be held once in each
quarter ; but the selection of the time is at the discretion
of the recorder : 5 & 6 Will. 4, c. 76, s. 105.

No statute determines the place for holding the county
quarter sessions : Dalt. 185. But by common arrange-
ment between the justices, specified places in their county
are fixed for that purpose ; and the precept summoning the
sessions would name the place in compliance therewith.
The county justices can only be restrained in making the
selection by some local act (a). Jenkins's Rep. 212, pi. 49.

(a) As to the annual general 45, provides for the transaction

sessions for Lancashire, see 38 of public business and the ad-

Geo. 3, c. 58, 3. 2 ; for Kent see ministration of justice in the

54 Geo. 3, 104 ; 37 & 38 Vict. c. county of Hereford.

16 THE CONVENING THE SESSIONS.

The Convening the Sessions.

The county sessions are convened by issuing a precept,
under the hands and seals of two justices of the county, or
of the custos rotutorum, and one justice, addressed to the
sheriff, requiring him to summon the proposed sessions at
some day not less than fifteen days from the date of the
precept ; to return a grand and petit jiuy ; and give notice
throughout his bailiwick to jurors, coroners, gaolers, stewards,
constables, and bailiffs of liberties, whose attendance is re-
quisite. Dalton, c. 185, gives the form of the precept.

A conflict between justices issuing separate precepts, con-
vening distinct sessions, as spoken of by Dalton, could hardly
happen in the present day : the last instance recorded is to
be found in R. v. Sainsburi/, 4 T. K 451.

The recorder of a borough issues his precept under his
hand and seal, addressed to the clerk of the peace of the
borough ; and at least ten days' notice must be publicly
given of the day for holdiug the sessions, 5 & 6 Will. 4, c. 76,
s. 121.

An irregularity in the precept will not vitiate the pro-
ceedings. Lamb, bk. 4, p. 380; see also R. v. Ipswich
Corporation, 22 Raym. 1237, 1238.

Pi'elimin ary Proceedings.

The court having been opened with the usual form
by the crier (a), the proclamation against vice and im-
morality read, and the grand jury " charged " as to their
duties by the chairman or recorder, the court will consider
the propriety of constituting a second court, as empowered
under 21 & 22 Yict. c. 73, s. 9, as to the county quarter
sessions.

By 7 Will. 4, and 1 Vict. c. 19, s. 1, whenever it shall
appear to the recorder, or other person presiding at the
quarter sessions of a corporate city or town, that the ses-
sions "are likely to last more than three days," a second
court may be formed ; and the recorder may appoint, by
writing under his hand and seal, a barrister, of not less
than five years' standing, to preside; but no recorder can

{a) The Court is opened by the anything to do at the General

crier making the following pro- (Quarter) Sessions of the Peace

clamation : — " Oyez ! Oyez ! Oyez ! for this county draw near and

All manner of persons who have give your attendance. "

THE ADJOURNMENT. 17

order such second court, unless it shall have been certified
to him before such sessions, under the hands of the mayor,
or the hands of two of the aldermen, that the council have
resolved that it will be expedient, and for the benefit of the
inhabitants, that such power should be exercised ; nor unless
the name of the barrister proposed to be appointed shall
have been approved by the Secretary of State (a).

The assistant barrister, when appointed, will be entitled to
ten guineas a day ; but not to receive remuneration for more
than two days : ib. s. 2 (6).

It has been found expedient to extend this limited power ;
and by 40 & 41 Vict. c. 17, it is provided, that the resolution
of the council, if and when made, may continue for twelve
months from its date ; and the time for the holding the
second court extends to four days, for which time the assis-
tant barrister and officers will receive remuneration. This
enactment was passed to meet the requirements of the
larger towns, such as Liverpool, Manchester, Leeds, Birming-
ham, Bristol, &c.

The Adjournment.

The general principle is that the sessions, from the first
day of the original sessions to the last day of the adjourned
sessions, however many adjournments there may be, in law
they are but as one day, as expressed by Lord Campbell,
L. C. J., in R. V. Lancashire, 8 E. & B. 563 ; 27 L. J. M. C.
161 ; see also a case eo nom., 34 L. T. 124 ; R. v. Surrey, 1
M. & S. 481; but under 21 & 22 Vict. c. 73, s. 12, a
judgment or sentence of the court of sessions takes eft'ect
from the day of its being pronounced.

The following is the proclamation on the adjournment : —

" Oyez ! Oyez ! Oyez ! All manner of persons who have
anything further to do at the general [quarter] sessions for
this county, let them depart hence, and give their attendance

at d'c., on dr., at o'clock in the forenoon. God save the

Queen."

And which adjournment the clerk of the peace will record.
The sessions should be continued from day to day by-
adjournment. R. Y. Foisted J 2 Str. 1262 ; R. v. Hadiiigton,

(a) So much preliminary rou- (h) The assistant would re-
tine is here prescribed that no ceive in some instances more than
second court is ever likely to be the recorder,
held under the sections.

18 THE ADJOUKNMENT.

Burr. S. C. 112. Each adjournment must be made in the
presence of two justices, a quorum of the court. H. v.
Middlesex, 5 B. & Ad. 1 1 1 3 ; i?. v. Westrington, 2 Bott.
pi. 981.

In the absence of the recorder or his deputy, the mayor
may open and adjourn the court at a borough sessions, and
respite all recognizances ; 5 & 6 Will. 4, c. 76, s. 105.

But no sessions can be adjourned beyond the time which
may be appointed for holding the subsequent sessions. R. v.
Grince, 19 Vin. Abr. 358 ; 2 Bott. pi. 974.

An adjournment of the sessions to a subsequent sessions
is a continuation of the original sessions ; so that an appeal
dismissed with costs may be adjourned to the subsequent
sessions for the purpose of ascertaining the amount, and then
making an order thereon. Raivnsley v. Hutchinson, L. R. 6
Q. B. 305; 40 L. J. M. C. 97; 23 L. T. 383; 19 W. R.
436.

In several counties, for the greater convenience of con-
ducting the business of the sessions, it is customary to hold
two or more courts at different places in the county, by
adjournment from the original sessions. The adjourned
courts are presided over by a chairman selected by the
justices usually forming such court, and the justices com-
posing the court are principally those of the division in
which the court is situate ; and all the business, whether
for appeals or the trial of prisoners, happening in that divi-
sion, is specially heard and tried at such original or
adjourned court. Much discussion has been raised from
tiuie to time as to how far the adjourned sessions, so consti-
tuted, are to be considered as independent of the original
sessions, for the purpose of giving the notices on appeals for
*' the next," or " the next practicable," sessions for the trial
and hearing an appeal. This subject will be treated on
under the subject " Appeal ; " but it may be sufficient
under this general head to refer to R. v. Sussex, 7 T. R.
107 ; ^. V. Sufolk, 4 A. & E. 319 ; ie. V. Cornwall, 6 A. &
E. 894 ; R. v. Lancashire, 8 E. & B. 563 ; 27 L. J. M. C.
161 ; R. V. Suffolk, 4 D. & L. 628; 5 ih. 558 ; 16 L. J.
M. C. 36; 17 ih. 143; Rawnsley v. Hutchinson {supra);
R. V. Lancashire, 34 L. T. 124, which show consider-
able conflict of opinion had existed on the point. The
result of w^hich authorities is that for giving the notice of
appeal, the time from which to date the notice is to be taken
as from the first day of the original sessions, and not as
dating from any adjournments thereof. But where the

THE ADJOURNMENT. 19

rules of the sessions, or of the adjourned sessions at which
it is the custom to try the appeal, require a particular prac-
tice to be followed as to notice of trial of the appe d, such
local rules may be made applicable to the first day of the
adjourned sessions.

As to the adjournment of an appeal, see tit. " Appeal,"
post.

PAET II.

APPELLATE SUBJECTS.

ADMIRALTY.

Falsely Under 28 & 29 Vict. c. 134, s. 6, any person who, in order

procuring to Sustain any claim to any pay, wages, allotment and prize-
a person to uioney, &c., payable by the Admiralty ; or to any effects or
mitted a nioney in charge of the Admiralty ; or in order to procure
pensioner, any person to be admitted a pensioner as the widow of an
officer of the navy, does any of the following things : —

Offers or utters to any person in the service of the
Crown, or of the Admiralty, any false affidavit, know-
ing the same to be false ;

or

Makes or subscribes, or offers or utters as aforesaid, any
false written petition, application, statement, answer,
certificate, or voucher, or other false writing, knowing
the same to be false.

Falsely Pj sec. 8, any person who, in order to receive any pay, wages,

personating &c., or allowance from the Compassionate Fund of the navy,
a pen- qj. ^^j other money payable or supposed to be payable by
Rioner. ^^^ Admiralty, or any effects or money in charge or supposed
to be in charge of the Admiralty, falsely and deceitfully per-
sonates any person entitled, or supposed to be entitled, to
receive the same, will in each of the above cases be liable to
be imprisoned for a term not exceeding six months, with or
without hard labour : ss. 6, 8 (a).

(a) The party may also be in- two years. Any information

dieted and subject to a sentence must be commenced within six

of penal servitude for five years, months, 11 & 12 Vict. c. 43,

or imprisonment not exceeding s. 11.

ADULTERATION — BREAD. 21

The parties have their right of appeal, on a sentence of
imprisonment without fine, under the Sum. Juris. Act, 1879,
ss. 19, 31.

ADULTERATION.

Bread.
6 & 7 Will. 4, c. 37 {a). (See '' Baker.")
(As to the City of London, see 3 Geo. 4, c. CVI.)

The ingredients of which bread may be composed are, — Of what
flour or meal of wheat, barley, rye, oats, buckwheat, Indian bread may
com, beans, rice or potatoes, or any of them, and with any ® ^^^'
common salt, pure water, eggs, milk, barm, leaven, potatoes
or yeast, and mixed in such proportions as the baker or
seller of bread may think fit, and with no other ingredient or
matter whatsoever : 6 & 7 Will. 4, c. 37, s. 2.

Any person putting into any corn meal or flour at the
time of grinding, or at any time, any ingredient or mix-
ture not being the genuine produce of corn or grain which
shall be ground, or shall knowingly (h) sell or expose for
sale, separately or mixed, any meal or flour of one sort of
corn or grain as the meal or flour of any other sort of corn or
grain ; or any ingredient whatsoever mixed with the meal or
flour and sold or offered or exposed for sale ; — for every such
off'ence the party will be subject to a penalty of ^20 and not
less than £5 : sec. 9.

It is immaterial whether the offence be committed in a Immaterial
shop or elsewhere. See R. v. Kingshy, 15 J. P. 65 ; 16 L. T. where
408 ; Robinson v. Cliff, 1 Ex. D. 294 : 45 L. J. M. C. 109 : o^«°^? ,
34 L. T. 689. committed.

Every person who shall make for sale, or sell, or expose Mixed
for sale any bread wholly or partially of peas or beans, or tread to be
potatoes, or of any sort of corn or grain other than wheat, ^^^'^'^'i-
shall mark all such bread a Roman M, under a penalty not
exceeding 10s. for every pound weight of such bread sold or
exposed for sale without being so marked : sec. 10.

Every miller, mealman, or baker in whose house, mill. Having
shop, stall, bakehouse, bolting house, pastry warehouse, out- possession
house, ground, or possession any ingredient or mixture shall ? ^^^^cles ^

(fl) Sees. 34 & 36 are repealed the vendor or his servant : Core\. ^"°^'

by Stat. Law Rev. Act (No. 1), James. L. R. 7 Q. B., 135 ; 41 L.J.

1874. M. C. 19 : 25 L. T. 593. See tit.

(J) That is, a knowledge by "Baker."

22 ADL'LTERATIOX.

be found, which shall after due examination be adjudged by
the justice to have been deposited there for the purpose of
being used in adulterating meal, flour, or bread, will be sub-
ject to the penalty of, for the first offence, <£10 and not less
than £2 ; for the second offence, £5 ; and j£10 for every
subsequent ofience, or in default imprisonment for six
months with or without hard labour. (In London the im-
prisonment will be without hard labour: Sec. 14, 3 Geo. 4,
c. CVI.) As to the scale of imprisonment, see 42 & 43 Vict,
c. 49, s. 5, Sum. Juris. Act, 1879.
obstruct- Any person obstructing an officer in the execution of his
iugothcers. duty, when seizing any meal, ttc, is subject to a penalty not

exceeding <£10.
Appeal. Sec. 25 gives the right of appeal to the party aggrieved.

Such appeal is to be made to the next general quarter sessions
which may be holden for the city, county, division, town, or
place where such judgment may have been given ; but where
the conviction happens within six days before the sessions,
then the appeal will be to the then next or to the sessions
then next following such sessions. And upon the party
entering into his recognizance with two sufficient sureties in
double the amount of the penalty within twenty-four hours
of his conviction to try the appeal and abide the judgment,
he may be discharged from custody. On the hearing the
appeal, if the conviction be confirmed, the appellant shall
forthwith pay down the amount adjudged to be forfeited,
with the costs sustained by the appeal ; and upon failure in
paying such money, any two justices, or any one magistrate
having jurisdiction in the place into w^hich any such appel-
lant shall escape, or where he may reside, '' shall and may "
by waiTant commit him to the gaol or the place where he
may be apprehended until the penalty be paid. If the
appellant succeed, the informer may be adjudged to pay the
costs incurred. But no person is to be detained in prison
more than three months. 6 (k 7 Will. 4, c. 37, ss. 2o, 26 ;
and see the Summary Jurisdiction Act, 1879, 41 & 42 Vict,
c. 49, s. 32, giving the option of appeal under that Act. See
tit. " S. J. Acts," infra.

SALE OF FOODS AND DRUGS ACT, 1875. 2:i

Sale of Foods and Drugs Act, 1875.

38 tk 39 Vict. c. 63 (1875) ; The Amendment Act, 1879,
42 & 43 Vict. c. 30.

The Stat, of 1875 repeals 23 & 24 Vict. c. 84; 31 & 32
Vict. c. 121, s. 24 ; 33 & 34 Vict. c. '26, s. 3 ; 35 & 36 Vict.
c. 74.

Sec. 2, Act 1875, defines "food" to include every article Definition
used for food or drink by man, other than drugs or water ; of "foo-l,"
the term "drug" to include medicine for internal or external ,< °'i. ..
use ; and " county " to include every county, riding, and
division, as well as every county of a city or town not being
a borough ; and sec. 7 of the Amendment Act, 1879, extends
the word " county " to every liberty having a separate court
of quarter sessions ; except the liberty of a Cinque Port.

By sec. 3, Act 1875, no person shall mix, or permit any No mixing
person to mix, colour, stain, or powder, any article of food pf other
with any ingredient or material so as to render the article ^ingredients
injurious to health with intent that the same may be sold inj^^i-iou,
in that state ; a sale of such article renders the party liable to health,
to a penalty not exceeding in each case £50 ; and after a
conviction for a first offence, every subsequent offence will
be a misdemeanour, and the defendant be liable to six
months' imprisonment. Green tea coated with Prussian
blue is an adulterated article : Roberts v. Egerton, 43 L. J,
]Sr. C. 135 (L. R. 9 Q. B. 494). As to special provisious for
stopping and seizing tea, see ss. 30, 31 of 38 & 39 Vict, c. 63.
A compound of ingredients sold under a known name —
as curagoa — is not within the mischief of the Act (Per
Blackburn, J). Roberts v. Egerton (S. C.) 30 L. T. 633 {a).
It is sufficient for the vendor to state the article is an
admixture without giving the proportions of the ingredients:
Pope V. Tearle, 30 L. T. R. 789. As to the sale of admixed
bread under 6 & 7 Will. 4, c. 37, s. 8, see Give v. James, 41
L. J. M. C. 19; L. R. 7 Q. B. 135.

Sec. 4, Act 1875, enacts, no person shall, except for the Compound
purpose of compounding, mix, colour, stain or powder, or ^"» ®^"
order, or permit any other person to raix, colour, stain or ^^^ ^
powder, any drug with any ingredient or material so as to
afiect injuriously the quality or potency of such drug with

(a) Bulwer, Q. C, Recorder of food : Law Times, p. 228, Januaiy
Cambridge, has held " Baking 24, 1880.
Powder" not to be an article of

24

ADULTERATIOX.

Want of
knowledge.

Article sold
of quality
demanded.

Sale bond
fide as ■
article sup-
plied to
vendor.

Notice of
defence.

No sale to
be made to
the preju-
dice of the
purchaser.

Davidson
V. McLeod,
Scotch
High
Court.

Hoyle V.
Bitchman,
Q. B. D.
(40 L. T.
252.)

Act 1879.

the intent that the same may be sold in that state, under a
penalty upon sale thereof as in sec. 3, for a first and
subsequent offence.

But no person will be convicted on either of the sees. 2
or 3 if he shows that he did not know of the article being
mixed, &c., as therein provided against, and that he could
not with reasonable diligence have obtained that knowledge.
See sec. 5.

It will also be sufficient, under sec. 25, for the vendor to
show the article sold was of a quality demanded, and that
the vendee had purchased it under a written warranty to
that effect ; and that the vendor, having no reason to believe
it was otherwise, sold it in the same state as when purchased
by him. But notice of such defence must be given, or the
party will be liable in any event to pay costs. It has been
held that an invoice containing a description of the article
sold does not constitute a warranty under this section.
Rook V. Hopleij, 3 Ex. D. 209 ; 47 L. J. M. 0. 118 ; 38 L. T.
649; 42 J. P. 551.

By sec. 6, Act 1879, no person shall sell to the prejudice
of the purchaser any article of food or any drug which is not
of the nature, substance and quality of the article demanded
by such purchaser, under a penalty not exceeding £20 ; and
the section provides that in determining whether (under
see. 6, Act 1875) an ofiPence has been committed by selling
to the prejudice of the purchaser spirits not adulterated
otherwise than by the admixture with water, it will be a
good defence that the spirit has not been reduced below
25 degrees under proof for brandy, whisky, or rum ; or
35 degrees under proof for gin. See Wehh v. Knight, 2 Q.
B. D. 530; 46 L. J. M. C. 264; 36 L. T. 791 ; Pashler v.
Stevemtt, 35 L. T. 862; 40 J. P. 357, C. A. D.

Under this section a (5ase was decided in the Scotch
Courts — Davidson v. McLeod, Justiciary Cases, 4th Ser. v. 5,
part 22, p. 1, — where the court was divided in opinion
whether an inspector purchasing for analysis was a pur-
chaser within the section ; but shortly afterwards the point
came before the Q. B. D. in Hoyle v. Hitchman, 48 L. J.
M. C. 97 ; 4 Q. B. D. 236, where an inspector had bought
some " London milk " for analysis, and not for use : the
court held he was a person within the meaning of the sec-
tion. To avoid any doubt on the question the Foods and
Drugs Act of 1879, 42 & 43 Vict. c. 30, was subsequently
passed, enacting, by sec. 2, that it should be no defence
that the purchaser had '' bought only for analysis and was

SALE OF FOODS AND DRUGS ACTS, 1875 — 1879. 25

not prejudiced by such sale ; " and also that it would be
no defence that the article in question, though defective in
nature, or in substance, or in quality, was not defective in
all three respects. In that case Lush, J., held that the
section would apply where the article supplied was of a Article of a
different and inferior quality from that demanded, and was different or
not limited to the admixture of a foreign substance. But it iJ^^erior
is held that it is necessary to a conviction that the mixture '^^^^ ^ ^'
sold should be a fraudulent one to conceal its quality, and
the justices are bound to find this as a fact. Ilorder v.
Meddings, 44 J. P. 234 ; see also Roberts v. Egerton, 43 L. J.
M. C. 135 ; 30 L. J. 633 ; L. R. 9 Q. B. 494.

It is not a sale to the prejudice of the purchaser where Sale under
the vendor brings to his knowledge the fact, by label or ^ ^^^^®^-
otherwise, that the article sold is not of the nature de-
manded. See sec. 8 ; Sandys v. Small, 3 Q. B. D. 499 ; 47
L. J. M. C. 115 ; 39 L. T. 118; 26 W. R. 814; see also
Roberts v. Egerton (sup.).

But where sold with a label the purchaser's attention
should be called to it before the completion of the purchase
for analysis or otherwise. Liddiard v. Reece, 44 J. P. 233.

As to the sale of labelled mustard, see Pope v. Searle,
30 L. T. R. 789 ; coloured green tea, Roberts v. Egerton
(sup.) ; butter mixed with lard and tallow, Fitzpatrick v.
Kelly, 42 L. J. M. C. 132.

The following cases are not within section 6 : — Exceptions

1. Where the matter or ingredient injurious to health *^ ^^^' ^•
has been added to the food or drug because the same is
required for the production or preparation of an article of
commerce in a state fit for carriage or consumption, and

not fraudulently to increase the bulk, weight, or measure
of the food or drug, or conceal the inferior quality (a)
thereof.

2. Where the drug or food is a proprietary medicine, and
supplied in the condition required.

3. Where the food or drug is compounded as mentioned
in the Act.

4. Or where unavoidably mixed with some extraneous
matter in process of collection or preparation.

By section 7 any compound article must be composed of
ingredients in accordance with the demand of the purchaser,
under the penalty not exceeding twenty pounds.

It is a condition precedent to a summary conviction under Condition

(a) See Lush's, J., remarks in Horder v. Meddhigs, 44 J. P. 234.

c

26

ADULTERATION.

precedent
to con-
riction.

Officer may
obtain
sample of
milk from
place of
delivery to
analyse.

Purchase
by a
private
person.

Refusal to
allow
officer to
take
sample.

Recovery of
penalty.

the Acts, that the purchaser must specifically notify to the
vendor of the article that it is his intention to have it
analysed by the public analyst. It is not enough to say it is
purchased for analysis : Barnes v. Chipp, 3 Ex. D. 176 ; 47 L. J.
M. C. 85 ; 38 L. T. 570 ; 26 W. R. 663 ; sec. 14, Act 1875, by
which it is stipulated that after the purchase has been com-
pleted the purchaser shall forthwith notify to the seller, or
his agent selling the article, that it will be analysed by the
public analyst, and shall offer to divide the article into three
parts, to be then and there separated, and each part to be
marked and sealed, or otherwise secured. One of the parts
will be delivered to the seller.

By sec. 3 of the Sale of Food and Drugs Act Amendment
Act, 1879, (passed to amend the Act of 1875,) see Hoyle v.
Uitchman ; Davidson v. McLeod (supra), a medical officer of
health, inspector of nuisances, or inspector of weights and
measures, or any inspector of a market, or any police con-
stable, under the direction and at the cost of the local autho-
rity appointing such officer, inspector, or constable, or charged
with the execution of the Act, may procure at the place of
delivery any sample of any milk in course of delivery to the
purchaser or consignee in pursuance of any contract for the
sale to such purchaser or consignee of such milk ; and such
officer, should he suspect the same to be sold contrary to
the provisions of the principal Act, shall submit the same
to analysis, and proceedings may be taken as if the same
had been purchased under the provisions of sec. 13 of the
principal Act.

Section 3, however, is not incorporated with sec. 14 (sup.)
of the principal Act ; and a sample of the milk need not,
therefore, be given to the vendor. A railway porter is not
an agent for the vendor of milk sent by rail for delivery.
£ouch V. Hall, 6 Q. B. D. 19 ; 50 L. J. M. C. 6.

The purchase may be made by an assistant of an inspector.
Border v. Scott, 49 L. J. M. C. 78. A private person pur-
chasing an article of food or drug may have the same ana-
lysed, sec. 12 ; and sec. 14 equally applies to such purchase,
as to that by a public officer under sec. 13, Act 1875. Par-
sons V. The Birmingham Dairy Co., 50 L. J. M. C. 111.

A refusal to allow the officer to take such sample subjects
the party to a penalty not exceeding £10, sec. 4, Act 1879, or
to refuse to sell the article to an officer, sec. 17, Act 1875.

This is the only penalty under the Act of 1879 ; and it
is to be remarked that there is no provision in the Act for
its recovery : the Act of 1879 is not incorporated with the

SALE OF FOODS AND DRUGS ACTS, 1875 — 1879. 27

Act of 1875, which contains a clause of procedure ; but the
omission is cured by the case Cullen v. Trimble^ 41 L. J. M. C.
132 ; 26 L. T. 691 ; where the court held, under a similar
state of facts, under the Contagious Diseases Animals Act,
1869, that where there are no express words making penalties
recoverable by summary procedure, a jurisdiction was im-
pliedly conferred on the justices to deal summarily with the
offences under the Act.

Under sec. 10 of the Act 1879, the service of the The sum-
summons for an offence, " in contravention of the terms of mons.
the 'principal Act," is to be made within a reasonable time ;
and in the case of a perishable article, not exceeding twenty-
eight days (a), notwithstanding sec. 20 of the Act of 1875.
But this section does not, seemingly by an oversight, include
within its operation the prior 4th section. And although
in accordance with Cullen v. Trimhle (supra), the justices
may have an implied jurisdiction to summarily hear a
charge made under sec. 4, still there can be no appeal on
their decision under sec. 23 of the principal Act.

The proceedings under the principal Act are under sec. 20,
and when the analyst has analysed an article and given his
certificate of the result, the person causing the analysis may
take proceedings, for the recovery of the penalty imposed,
before any justices having jurisdiction in the place where the
article or drug was actually delivered to the purchaser. And
such penalties are to be recovered under 11 & 12 Vict. c. 43.

The analyst's certificate will be received as sufficient evi- Analyst's
dence of the facts therein stated, unless the defendant shall certificate
require his attendance as a witness. evidence.

If the defendant relies upon any of the exceptions in his Onus of
favour in the Act, the onus of proof rests with him : sec. 24, pioof on
Act 1875. Both the defendant and his wife may be wit- defendant,
nesses : sec. 21, Act 1875.

Sec. 23, Act 1875, gives to the person convicted of an Appeal,
offence under the Act the right of appeal to the quarter ses-
sions. The appellant will give notice of appeal (6), and enter
into his recognizances within three days after conviction, with
two sureties, to try the appeal, and to be forthcoming to
abide the judgment and determination of the court, and to
pay such costs as shall be awarded. The appeal will be to

{a) Will the twenty-eight days (J) Sec, 23 gives the bare right

in all cases he considered a reason- of appeal. As to the notice, see
able time ? It would seem so, if In re Blues, infra. Tit. " Sum.
twenty-eight days is the time Juris. Acts," *' Appeal."
applicable to jferishable articles.

c 2

28

ADULTERATION OF SEED.

the next general or quarter sessions for the city, county, or
place wherein the conviction was made. The appellant has
also the option to make his appeal under the Sum. Juris.
Act, 1879; see sec. 32. And see tit. "Sum. Juris. Acts."

Definition
killing
or dyeing
seed.

Intent to
defraud.

Appeal.

Seed.

32 & 33 Vict. c. 112 (1869). Amended by 41 Vict. c. 17

(1878).

Any person who " kills " or causes any seeds to be killed ;
or dyes or causes any seeds to be dyed ; or sells, or causes to
be sold, any killed or dyed seeds, will be subject to, for the
first offence a penalty not exceeding £5 ; and for a second or
any subsequent offence a penalty not exceeding £50 ; and
moreover upon any second or subsequent offence against the
Act the court may order the offender's name, occupation,
place of abode and place of business to be published, and the
particulars of his punishment to be published, at the expense
of the offender, in such newspapers or other manner as the
court might see fit.

41 Vict. c. 17, defines the term ''to dye seeds" as, to
apply to seeds any process of colouring, dyeing, sulphur,
smoking, in lieu of the definition in 32 & 33 Vict. c. 112.
This alteration was made in consequence of the decision of
the Queen's Bench Division in Francis v. Maas, 47 L. J.
M. C. 83 ; 38 L. T. 100, where old clover seed had been
sulphured and smoked so as to make it look like young seed ;
and the court thought they could not treat " quality " as
synonymous with " ki7id.'^

It will be sufficient in the proceedings to allege that the
act was done "with intent to defraud," or " to enable some
other person to defraud," without alleging any particular
person. On the trial it will not be necessary to prove an
intent to defraud any particular person, or to enable any
particular person to defraud any particular person. It will
be sufficient to prove that the party accused did the act
charged with an intent to defraud, or with intent to enable
some other person to defraud, or with the intent that any
other person might be enabled to defraud. Sec. 5, Seeds
Act, 1869.

A conviction under these Acts is subject to appeal under
sec. 6, 32 & 33 Vict. c. 112, whereby the party may appeal
to next Court of General Quarter Sessions held not less than
twelve days after the day of such conviction for the county

AFFILIATION. 29

or place where the conviction is had in manner prescribed
by 24 & 25 Vict. c. 96, s. 110 : The Larceny Act, 1861, see .
tw/rrt, tit. " Criminal Law."

See also tit. " Summary Jurisdiction Acts," inf7'a, Act 1879,
8. 32, by which there is the option to appeal on election
under that Act.

AFFILIATION.

Prior to the Poor Law Amendment Act, 4 & 5 Will. 4, Jurisdic-
c. 76, the justices in quarter sessions had an original juris- *^'^"^*
diction, under 13 & 14 Car. 2, c. 12, s. 19, to make orders
in matters of affiliation ; the justices, however, in petty
sessions more commonly made the orders under the Stat, of
18 Eliz. c. 5, the quarter sessions acting on appeal ; and on
such appeal, the sessions having an original jurisdiction,
might not only have quashed the order appealed from, but
could have made a new order on another person. BurreVs
Case, 1 Mod. R. 20 ; Pridgeon's Case, 1 Bulst. 255 ; R. v.
Smith, 2 Bulst. 340.

The 4 & 5 Will. 4, c. 76, b. 72, constituted the quarter
sessions the only tribunal for making the order of affiliation
where the child became chargeable to the parish ; but by
2 & 3 Vict. c. 85, s. 1, that jurisdiction was transferred to
the special and petty sessions.

Those provisions have now been all repealed, and the
statutes affecting orders of affiliation are 4 & 5 Will. 4,
c. 76 ; 7 & 8 Vict. c. 101 ; 8 & 9 Vict. c. 10 ; 35 & 36 Vict,
c. 65, and 35 k 36 Vict. c. 9 ; 37 & 38 Vict. c. 88 ; 39 <fe 40
Vict. c. 61.

Under 35 & 36 Vict. c. ^5, s. 3, any single woman who Proceed-
may be with child, or who may be delivered of a bastard i^S^ by a
child, may, either before the birth, or at any time within **"^^^
twelve months after the birth, or at any time thereafter, ao-ainst the
upon proof that the alleged father had within twelve months putative
after the birth of the child paid money for its maintenance ; father by
or at any time within twelve months next after the return s""^™*^'^''-
to England of the alleged father, upon proof that he had
ceased to reside in England within twelve months next after
the birth, make application to any one justice of the peace
acting for the petty sessional division of the county, or for
the city, borough, or place in Vrhich she may reside, for a

30

AFFILIATION.

Personal

service.

When
api)lication
made prior
to birth
of child.

** Single
woman."

Married
woman
may be
treated as
a single
woman.

The
mother
must be in
England,
or English
territory,
at the birth
of the
.^hild.

summons to be served on the man alleged bj her to be the
father of the child ; and if such application be made before
the birth of the child, the woman shall make a deposition
upon oath, stating who is the father of such child ; and
such justice shall thereupon issue his summons to the alleged
father to appear at a petty sessions, to be holden after the
expiration of six days at least, for the petty sessional divi-
sion, city, borough, or place in which such justice usually
acts (a). And by the 7 & 8 Vict. c. 101, s. 4, no order is
to be made unless applied for within forty days from the
service of the sumnaons. Where the application is made
before the birth of the child, see 8 & 9 Vict. c. 10, s. 4.

The term " single woman," in sec. 3, will include a widow.
R. V. Wymondham, 2 Q. B. 541 ; and see Antony v. Carden-
ham, Fost. 309 ; 2 Bott. 194, where a widower was held to
be as a single man.

A maiTied woman may be so separated from her husband
as to become the mother of an illegitimate child, in respect
of which an affiliating order may be made : as where the
husband, during the usual time for gestation, is absent as a
prisoner imdergoing penal servitude. B. v. Gollingwood,
17 L. J. M. C. 168 ; 12 Q. B. 681 ; Ex parte Grimes, 22 L. J.
M. C. 153; B. v. Pilkington, 21 L. T. 165; 17 Jur. 554, in
which Campbell, L. C. J., and Erie, J., supported R. v.
Collingwood, referring to R. v. Luffe, 8 East, 193. And see
Medivay Union v. Maidstone Union, 5 Q. B. D. 31, where a
wife had ceased to retain her civil rights, she having left her
home, and living apart from her husband in adultery.

To obtain an order of affiliation, the child must be born
in England : the place where the mother became pregnant
is immaterial, and not for the consideration of the justices :
Hampton v. Richard, 43 L. J. M. C. 133. In that case the
parents were Irish ; and the cohabitation took place in
Ireland, but the material facts were the birth of the child in
Cornwall, and the presence of the father there at the time
of the service of the summons, and the making the order.
In U. V. Blane, 18 L. J. M. C. 216; 13 Q. B. 769, the
mother of the child was a Frenchwoman, the father English ;
but the child was born in France. It was held the Act did
not apply to this case; and from the reasoning of the judges
it would seem that the same rule would apply where the
child of an Englishwoman was born illegitimate abroad.

(/?) This 3rd section is substantially the same as section 2 of 7 & 8
Yict. c. 101,

AFFILIATION. 31

See also Blackburn's, J., judgment, in Marshall v. Murga-
troyd, 40 L. J. M. C. 7 ; L. R. 6 Q. B. 31, in which his lord-
ship says, in referring to R. v. Blane, " The Act only applies
to a child born of a mother in English territory ;" and at the
same time holding that the birth of a child on board an
English ship upon the high seas was a birth within the
dominion of England.

Excepting where the guardians of a union or parish are Applica-
authorised to apply for an affiliation summons on the child ^^^^ ^jy *^^
becoming chargeable to the union or parish, under 36 Vict. ™° ®^~
c. 9, s. 5, the application must be made by the mother;
and in each case, should she die before any hearing takes
place, no order can be made, as her evidence is imperative.
R. V. Armitage, 27 L. T. 41 ; 35 & 36 Vict. c. 65, s. 4; 8 Vict.
c. 10, s. 6. See p. 47, as to the death of the mother
pending an appeal.

When the application is made by the mother before the before
birth of the child, it must be upon her deposition or oath, ^}^^
stating who is the father of the child : see Bovill's, C. J.,
remarks, in R. v. Fletcher (a) ; if made after the birth, it
must be made within twelve months of the birth, unless
the father shall have paid money for its maintenance within
the first twelve months after the birth. Where the summons
is applied for after the lapse of twelve months from the
birth. Lord Campbell, L. C. J., remarked, that although not ^ee also
expressly required by the statute, the iustice should not issue ^'. ^'

C)ZT/}7TlOflS

the summons, unless upon evidence that the father had in 28 l. J. M.
fact paid the money for its maintenance within the twelve C. 183.
months : see R. v. Berry, 28 L. J. M. C. 86 ; 1 Bell, C. C. 46 ;
or also, that he had ceased to reside in England during the
twelve months where such consideration is involved.

Where the mother's application is made within the Summont!
twelve months, as required, the summons need not be served issued
until after the expiration of the twelve months. See Potts v. 7J .^
Cambridge, 8 E. & B. 847 ; 27 L. J. M. C. 62, as where the months
address of the defendant was not known, and in such case need not
the application should be made, but the service of the ^® served
summons may be suspended : see R. v. Chugg, 22 L. T. 556 ; "^"^^'^ ^^*^'"-
11 Cox C. C. 558, Q. B. ; Ex p. Harrison, 19 L. T. 114.

{a) Should the summons have R. v, Fletcher, L. E. 1 C. C. R.

been issued without the deposi- 320 ; 40 L. J. M. C. 123 ; 24 L. T.

tions taken, the defect will be 742 ; 19 W. E. 781 ; see also B.

cured should the respondent \. Berry [stipra); R.y. Wiltshire,

appear at the petty sessions and 12 A. & E. 793 ; B. v. Stoddart,

raise no objection. In such case 1 Gr. &; D. 654.
the justices may make an order :

32 AFFILIATION.

The court in B. v. Damarell, 37 L. J. '^L C. 21, assumed

(if the L. C. J. be correctly reported), that as the time was

limited for the woman to make her application to the twelve

months after the birth of the child, if the father were absent

beyond that period, her remedy against him would be gone.

That would, no doubt, be so, if no application by the mother

were made ; but it could be made within the twelve months,

and, as in Potts v. Cambridge {supra), the service of the

summons be postponed. See also R. v. Ghugg {supra, p. 31),

post, p. 34.

Applica- The mother's application must be made within the local

tiou to jurisdiction in which she resides, and so appear on the face of

\dt™in ^ ^^® order ; the justices elsewhere have no jurisdiction, and

the local proceedings had before them would be abortive ; Slmrp v.

jurisdic- Aspinall, 10 B. & C, 47 ; In re Peerless, 1 Q. B. 143 ; R. v.

tion. Martin, ih. 1037; R. v. Hichling, 7 Q. B. 890; if she be

not there with a fraudulent or improper object, such as for

the avoiding the decision of a bench which had already

decided against her, as in R. v. Myott, 32 L. J. M. C. 138.

Should she have no settled place of residence, she may apply

to the justices of the division where she may happen for the

time to be. Lawrence v. Ingmire, 20 L. T. 391.

The Justice The justice who hears the information should at the time

who hears grant the summons, for it is only such justice, and he alone,

^'^y^ T ^^ whom the application had been made, has power to issue

l"ranTthe i* ^ R- V. Pickford, 30 L. J. M. C. 133; 1 B. & S. 77.

summons. That case was decided on the 2nd sec. of 7 & 8 Vict. c. 101,

now repealed ; but the words of sec. 3 of 35 & 36 Vict. c.

65, are similar, and the authority will still apply.

Proceed- Under 36 Vict. c. 9, sec. 5, upon a bastard child becoming

ings when chargeable to a union or parish an application may be

to a parish ^^^^® by the guardians (a) to two justices in petty sessions

applica- having jurisdiction in the division where the union or

tion by parish is situate, for a summons requiring the attend-

guardians ^uce of the alleged father to appear before two justices

putative baving the like jurisdiction, to show cause why an order

father. should not be made upon him to contribute towards the

relief of such child. And the summons may be heard upon

his appearance, or upon proof of the summons having been

served upon him or left at his last place of abode six days at

least before the petty sessions (6), and then upon hearing the

(rt) Costs may be awarded s. 24.
against either party, see 11 & 12 (i) See It. v. Smith, 32 L. T.

Vict. 0. 43 ; 39 Sc 40 Vict c. 61, 394.

AFFILIATION. 83

evideiicG of the mother, as upon an application by herself,
an order may be made on the putative father to pay to the
guardians, or one of their officers, a sum of money towards
the relief of the child so long as it should continue chargeable.
Bat this order is limited thus : —

Sub-sec. 1. — To the time of actual chargeability ;
Sub-sec. 2. — To cease, excepting for the recovery of

arrears, when the mother shall have obtained an

order ;
Sub-sec. 3. — The order is not to relieve the mother from

her liability to maintain the child ;
Sub-sec. 4. — The alleged father has his right of appeal ;
Sub-sec. 5. — Upon the mother's application for an order,

after the guardians shall have obtained their order,

such order may be used as primd facie evidence

that the man against whom such order has been

made is the father of the child.

It will be observed that this section imposes no limitation as Guardians
to the time during which the guardians may proceed against ^°* limited
the putative father, as there is in reference to the mother's ^
api^lication. The actual chargeability of the child to the
union or parish is the sole condition on which the guardians
act ; and such chargeability would depend on the place of its
settlement under 4 & 5 Will. 4, c. 76, s. 71. It should Distinc-
further be noticed that when the mother initiates the pro- ^^'^^ '•
ceediugs she may make her application to one justice for the ^^^„j.(f-^ ^^^^
summons which is to be 2)e7^sonally served ; the application applica-
on the part of the guardians is to be made to tivo justices, tion.
aud the service of the summons need not be personal.

No order for the maintenance of a bastard child can be Applica-
made unless it be applied for at a petty sessions within forty tion for
days from the service of the summons, after the birth of the J^^^ *°
bastard child, on the person alleged to be the father of the ^^thin
bastard child. Ex parte Boynton, 1 L M. & G. 12 ; ^. v. Rose, forty days
15 L. J. M. C. 6 ; 2 N. S. C. 166 ; 7 & 8 Vict. c. 101, s. 4. of service

Proof of service of the summons out of England or Wales *^®
is not a "due service :" B. v. Lighffoot, 25 L. J. M. C. 115. ^"^"^°°«-
Lord Campbell, in that case, dissented from the iudgments "-^^^'^ceof
of Erie and Crompton, JJ. ; the Lord Chief Justice holding ^^^ of
that a personal service (the alleged father was living in Scot- England
land, and was there personally served) " must be a due ^^ Wales,
service wherever it might take place, supposing always that
the party served may conveniently comply with it.'' The
rest of the court considered the words of the act strictly

c 3

34

AFFILIATION.

Avoidance
of service
of sum-
mons by
defendant.

Service of
Hummons
on the
mothers
applica-
tion ; and
guardians.

When the

mother's

application

made

within the

twelve

months,

service of

summons

may be

after.

Proof of
service of
summons.

Non-ap-
pearance
rf party
summoned

confined its whole operation to " England and Wales " for
all purposes.

The man's quitting his last place of abode at which the
service of the summons had been made should be bond jide^
and not for the purpose of avoiding the summons, and avail-
ing himself of any change of abode : see R. v. Higham,
26 L. J. M. C. 116. And even where the defendant made
his affidavit that he had not left his home to avoid service ;
yet, the order being good on the face of it, and he not
swearing he was not the father of the child, or suggesting an
unjust charge had been attempted to be fastened upon him
by reason of his absence, the court refused to assist him.
R. V. Davis, 22 L. J. M. C. 143 ; S. C. 21 L. T. 170.

Where the mother has obtained the summons there must
be personal service on the putative father ; or w^here the
guardians have obtained the summons, the service may be
either personal or by its being left at "the last known
place of abode " of the defendant *' six days at least "
before the day of holding the petty sessions : see ante,
p. 30.

The application for the summons is to be made by the
mother within twelve months of the birth of the child : see
ante, p. 31 ; but if made within the time, the service of the
summons may be after the twelve months. A bastard child
was born on 20th March, 1868, and the mother applied for
a summons on 18th April, 1868. The summons issued on
the same day was not served, as the process server was
unable to find the alleged father. The mother finding the
man's address, obtained, about a fortnight after, another
summons on 14th January, 1870, which was served on him,
and he appeared to it. The justices were held to have had
jurisdiction, although more than twelve months had elapsed
from the birth of the child, the mother having initiated the
proceedings within the twelve months. R. v. Chugg, 22 L. T.
556; 11 CoxC. C. 558, Q. B.

The service of the summons may be proved by affidavit :
35 & 36 Vict. c. 65, s. 6 ; so also as to a service out of the
district : see sec. 4, ib.

When the party summoned does not appear by himself,
or counsel or solicitor (8 Vict. c. 10, s. 7), 35 & 36 Vict,
c. 65, s. 4, and the justices proceed in his absence, it is
important that strict proof of the service of the summons
should be required by the court, as the defendant may
eventually take advantage of any substantial defect which
may exist in the service. Mitchell v. Foster, 12 A. & E. 472 ;

AFFILIATION. 35

R V. Evans and another, J J., 19 L. J. M. C. 151 ; S. C. Ex

parte Jones, 15 L. T. 142.

The due service of the summons goes to the jurisdiction Service of

of the justices ; and although they are, in the first instance, summons

to form their opinion on the evidence on which their juris- ?^^M?..
T • • /. 1 1 11-1 L l^ - 1- jurisdiction

diction IS founded, and which warrants their proceedings, of Court,

yet justice requires that if it be clearly shown that the fact

fails, and that they ought never to have proceeded, the

party interested will be at liberty to move the court to

quash any order made thereon. See R. v. Dams, 22 L. J. M. C.

143 ; S. C. sub nom. Ex parte Davis, 21 L. T. 170 ; ^. v. Brown^

1 L. T. 29.

The presumption is always in favour of the legitimacy of Presump-
the child ; and this even although the husband and wife are *^°^ ^"
living apai-t. Lord Langdale, M. R., in Hargrave v. Har- j^Juimac -
grave, 9 Beavan, 552 — thus defines the proposition : — A
child bom of a married woman is in the first instance pre-
sumed to be legitimate. This presumption thus established
by law is not to be rebutted by circumstances which only
create a doubt and suspicion ; but it may be wholly removed
by showing that the husband was — first, incompetent ;
secondly, entirely absent so as to have had no intercourse or
communication of any kind with the mother ; thirdly,
entirely absent at the period during which the child must
in the course of nature have been begotten ; and fourthly,
only present under such circumstances as would afford clear
and satisfactory proof that there was no sexual intercourse.

The presumption in favour of legitimacy can be rebutted
by either proving a divorce a mensd et tJioro, or by some
cogent and irresistible proof of non-access in a sexual
sense. If the wife be living in open adultery it does not
necessarily follow, should the husband have had an oppor- ,
tunity of access, that a child born, while such oppor-
tunity existed, was not the husband's : R. v. Maiisfield, 1
Q. B. 444 ; and in which case Denman, L. C. J., explains
the two different reports of the remarks of Alderson, B., in
Cope V. Cope, as reported in 1 Moo. & Rob. 269; and S. C.
5 C. & P. 604. In Moo. & Rob. the learned Baron is re-
ported to have said, in addressing the jury (and which words
Denman, L. C. J., mainly approved) — "You ought to be very
careful in examining the evidence, and to have such cogent
proof before you as leaves no doubt in your minds that the
husband did not avail himself of the opportunity of inter-
course. See alsp Plowes v. Bossey, 31 L. J. Ch. 681 ; 7 L. T.
306 ; Saye and Sele Peerage, 1 H. L. Caa. 507 j Hargrave v.

8()

AFFILIATION.

Ontis of
proof.

Proceed-
ings not
wit hiu
Evidence
Act, 186?.

Mother
should be
prepared
to prove
her case
in the first
instance.

Hargrave, 9 Beav. 552 ; Gurney v. Gvrney, 32 L. J. Ch. 456 ;
8 L. T. 380 ; Morris v. Davies, 5 CI. & Fin. 163 ; 3 C. & P. 215.

Where there is a divorce a mensd et thoro, the children
born during separation are primd facie illegitimate. /6'^.
George Y. St. Margaret, 1 Salk. 123; Hubback on Succession,
412.

The onus prohandi of proving the illegitimacy rests en-
tirely with the person interested in so doing. There is no
onus on the party whose legitimacy is in question to show
opportunities of access, or what the circumstances were
under which the access took place. Kindersley, V. C,
riowes V. Bossey, 31 L. J. Ch. 681 ; 7 L. T. 306.

Tn E. V. Sourton, 5 A. & E. 186, Pattison, J. says: "It
will not be disputed that the parents may bastardize their
issue by any evidence except non-access ; " they cannot, how-
ever, give any evidence proving or tending to prove non-
access : see Atchley v. Sprigg, 33 L. J. Ch. 345, in which
Kindersley, V. C, explains an error in the reports oi.Ploives
V. Bossey {supra), where the wife's evidence (Mrs, Bossey 's)
is, by mistake, set out as evidence used in the suit ; whereas
it was rejected as inadmissible. The evidence must be in-
dependent of husband or wife. See In re 's Trust., as

reported in 39 L. J. Ch. 192 (James, V. C); S. C. In re
Bidoufs Trust, L. R. 10 Eq. 41. The mother may prove
her adultery in order to fix the paternity of the child after
proof aliunde of non-access. Legqe v. Edmunds, 25 L. J.
Ch. 138; R. v. Souton, 6 A. & E.' 180; Yates v. Chippen-
dale, 11 C. B. N. S. 512.

Proceedings under the bastardy laws are not " proceedings
instituted in consequence of adultery " within the " Evidence
Further Amendment Act, 1869 " *(32 & 33 Vict. c. 68),
sec. 3, so as to make the evidence of the husband, who has
refused to maintain his wife's child on the ground that he is
not the father, admissible to prove his non-access to his wife,
and thereby bastardize the child. The Guardians of the
Nottingham Union v. TomTcinson, 4 C. P. D. 343 ; 48 L. J,
M. C.'^lTl; 43 J. P. 735 (a).

The woman, having no right of appeal as the man has,
should at the first hearing be prepared to support her case
with her best evidence, and, if necessary, obtain an adjourn-
ment from time to time, which the justices may grant with

(a) This case clearly overrules
Hal], V. C, in In re Yearn-ood''s
Trusts, 5 Ch. D. 546; and

the remarks in laylor on Evid.
7th ed., s. 950,

AFFILIATION. 37

or without terms, as they may think reasonable : 7 & ft Vict,
c. 101, s. 4 ; and such adjournments may even extend
beyond the requisite forty days for the making the order after
the date of the service of the summons : Ex parte Harrison^
19 L. T. 114 ; 16 Jur. 726. Care should be taken that such
adjournments appear on the face of the order to show juris-
diction. See R, V. Rose, 2 New Sess. Cas. 166 ; 15 L. J.
M. C. 6.

Under the 7th sec. of 36 Vict. c. 9, when two justices are One justice
not present at the hearing, the one present may alone adjourn may

the case. the^^

A statement on the order that the defendant appeared by
his counsel or solicitor will be sufficient. R. v. Shipperbottom,
16 L. J. M. C. 113 ; 2 New Sess. Cas. 641, and post, p. 41.

It is absolutely necessaiy that the mother should be The mother
present, and be examined as a witness, at the hearing on the must be
summons. No order can be made without her testimony, examined
confirmed, as it must be, in some " material particular " to ^^^ ^^^^
the satisfaction of the justices : 7 & 8 Vict. c. 101, s. 3 ; ^. v. roborated.
Armitage, 27 L. T. R. 41 ; Jessop v. Brierly, 36 J. P. 488.
The effect of the corroborative evidence is entirely for the
justices to determine: Lawrence v. Ingmire, 20 L. T. 391 ;
Cole V. Manning, 46 L. J. M. C. 175; 2 Q. B. D. 611 ; 35
L. T. 941 ; and it should be evidence, although not in direct
relation to the actual begetting of the child, yet leading to the
conclusion that the man summoned was, in fact, the father
of the child. See also R. v. Pmrr^/, 17 C. B. 902 ; 18 L. T. 238.

In R. V. Berri/, 28 L. J. M. C. 86 ; 1 Bell, C. C. 46, a case
before the Court of Criminal Appeal on an indictment for
perjury, it was held that evidence of the payment of money
by the putative father, where given by independent testimony,
would be corroborative evidence of paternity ; and in Hodges
V. Bennett, for the purpose of the application by th6 mother
for the summons, after the limited twelve months, her evi-
dence of such payment did not require confirmation ; nor did
it on the hearing, although only proved by the mother, but
then she was corroborated in other material particulars.

Questions put to the mother as to her having had connec- Examina-
tion with other men at times not affecting the time of the tion on
conception of the child, will go solely to her credibility ; her reputation
answers must then be taken as conclusive {a), and she cannot ^Q^j^gj.
be contradicted : R. v. Gibbons, 31 L. J. M. C. 98 ; L. & C.

(a) If the evidence be admit- may be assigned on it : R. v. Gih-
ted, however wrongly, yet perjury hojis (supra).

38

AFFILIATION.

llefusal of
order is in
the nature
of a non-
suit.

Second
summons
on first
applica-
tion.

C. C. 109 j 5 L. T. 805. But the question of her connection
with some other man, tending to show that he may have
been the father of the child, is material, on which she may be
contradicted : Garhutt v. Simpson, 32 L. J. M. C. 186 ; 8
L. T. 423; i?. v. Holmes, 41 L. J. M. C. 12.

Witnesses may be summoned, and on non-appearance a
warrant may issue. A witness refusing to give evidence may
be committed for fourteen days, unless he sooner consent.
7 & 8 Vict. c. 101, 8. 70.

Upon the petty sessions refusing to make an order on the
hearing, the refusal is in the nature of a nonsuit, and the
woman is entitled to renew her application, and to have a
second summons ; but the justices on the second hearing
would doubtless look on the previous dismissal as cogent
evidence in the defendant's favour. The statute 7 & 8 Vict.
c. 101, contains no directions as to what is to be done if the
case is not made out to the satisfaction of the justices ;
neither does the subsequent statute, 8 Vict. c. 10. This
latter statute gives a schedule of forms, but no form of
adjudication in favour of the party summoned, nor is there
any enactment of any kind as to giving him costs. And on
this Lord Denman said, the court could not see that the
legislature intended the sessions (petty) to have any power
to adjudicate finally against the mother. If the matter had
been fully inquired into in the first instance, any new evi-
dence adduced on the second occasion would be viewed with
suspicion, and should be sifted accordingly ; but the dismissal
cannot operate as a bar to further inquiry : H. v. Machen and
another, 18 L. J. M. C. 213; 14 Q. B. 74; S. C. Jones y.
Machen, 3 New Sess. Cas. 629. This case has always been
followed ; and where the justices have refused to entertain
a further application a mandamus to hear has been obtained.
See Ex parte Westerman, 16 L. T. 420 ; R. v. Harrington, 9
L. T. 721 ; R. v. Brishy, 18 L. J. M. C. 157 ; R. v. Grant and
another, 36 L. J. M. C. 89. R. v. Machen is founded on the
old authority, R. v. Jenhin, Cas. Temp. Hard, 301.

When the summons is dismissed on some matter of form
only, and not on the merits, the second summons may issue
without a fresh application ; the application is not then
exhausted. R. v. Lancashire J J., 29 L. T. 886 ; 22 W. K.
329, Q. B. See also R. v. Glynne, L. R. 7 Q. B. 16'; 41
L. J. M. C. 58 ; "l^ L. T. 61 ; S. C. eo nom. R.y. Flintshire
20 W. R. 94 ; R. v. Essex, 49 L. J. M. C. 67 ; S. C. R. v.
May, 5 Q. B. D. 382. But it would seem that the second
Bummons should be granted by the justice who received the

AFFILIATION. 39

information : see supra ; R. v. Fickford^ p. 32 ; or otherwise
there should be a new application. Where, however, the Not when
summons is dismissed on the merits, as for instance, on the summons
ground that the corroborative evidence was insufficient, a ^^ ^gj-jt^^,
fresh application would be necessary, and the proceedings
must begin de novo within the year of the birth : 8 & 9
Vict. c. 10, s. 2; R. v. Thomas, 8 L. T. 460: see also
Ex parte Harrison, 19 L. T. 114; 16 Jur. 726; ^. v. Essex J J.
49 L. J. M. C. 67 ; S. C. R. v. May and others, J J,
Essex, 5 Q. B. D. 382 ; Staples v. Staples, 41 L. T. 347.

In R. V. Harrington, 9 L. T. 721, the dismissal was in conse- Where <lis-
quence of the woman not being prepared with corroborative "^J^sed on
evidence ; and on an order being made on the second \^ corroba-
summons, the Court was moved by certiorari to quash it. rative evi-
Cockburn, L. C. J., said that the dismissal was not upon dence.
the merits ; and added, " If there had been a hearing
upon the merits, and a dismissal on the merits, and if that
had been brought to the notice of the justices upon the
second application, and no other evidence produced, I think
that ought to be a sufficient answer." In the case of
R. V. Buckinghamshire J J., 18 L. J. M. C. 113 ; 3 N. Sess.
Cas. 500, after a dismissal of the woman's application in one Where
jurisdiction she removed into another, and there obtained an summons
order on a second summons ; it was there objected that the !^ another
first application had been dismissed on the merits, but with ^^^ ^^'
no effect, and an order was made. On appeal to the quarter ax ..
sessions, the order being confirmed on that point, the session
appellant retired from the case before any evidence was decision
heard or offered, and the order was confirmed, and the <>» ground
appellant moved the Q. B. to quash the order. Erie, J., ^^ "*^ ^^J'
held that as the Court of Appeal had jurisdiction to hear evidence
and determine the question, and had exercised their discre- is not a
tion, he refused to interfere, at the same time expressing the decision on
opinion that the former decision on the merits in favour of ^®"*s-
the putative father was an answer to the second application.
A further point arose in that case. The mother was not
examined as a witness on the appeal ; but as the appellant
retired from the case on being defeated in the objection in
law, the sessions were right in confirming the order, although
6, 8 & 9 Vict. c. 10, had not, so far, been complied with,
and the decision was final.

Where, however, on the appeal, the court have heard the Where
evidence of the mother and her witnesses, and dismissed the order dis-
order on the ground that her evidence is not corroborated, ^^^^^^ on
although such a decision, if made at petty sessions, would thf el-ound

40 AFFILIATION.

of no cor- not be one on the merits, R. v. Maclien (supra), and would
roborative entitle the mother to apply again on obtaining further evi-
deci^on^ir ^^^^^^ ^^ confirmation, the Q. B. held, in R. v. Glynne and
tijial. anotJier, 41 L. J. M. C. 58; 26 L. T. 61; ^.Q'.suhnom.

R. V. Flintshire, 20 W. R. 94 ; that there was no authority
against holding that the decision of the superior tribunal
under such circumstances was final ; and it was compared
to a decision in a criminal case, where there is not sufficient
evidence to convict. S. C. L. R. 7 Q. B. 16.
Decision of But to render the decision of the quarter sessions final,
quarter the court must have heard the case to create the estoppel,
sessions to 'fi^^^^g^ where the woman by mistake or accident was not
case must P^'^sent at the sessions to support her order, and in her
liave been absence the order was quashed, the Queen's Bench gi-anted
heard. a mandamus to justices in petty sessions to issue a fresh
summons on a new application. Had the woman designedly
absented herself, that, the court said, would be matter for
the justices to consider on the hearing ; and on which they
would exercise their discretion as to dismissing the case, or
taking into consideration the costs of the abortive trial : R,
V. Essex J J., 49 L. J. M. C. 67; S. C. siih nom. R. v. Afaj/
and others, 5 Q. B. D. 382.
Form of The order must be drawn up with great care. Every

order, care circumstaHce necessary to show that the justices acted
m drawing ^j^^hin qj^^ vtith jurisdiction must appear on the face of the
order, or advantage can be taken of the omission either on
appeal, or on a motion to quash the order in the High
Court. Forms of orders are to be found in the schedules to
the acts : but these may not meet every case ; they may,
however, be adapted to the particular circumstances of each
case. Some decisions have been given which may guide the
di'aftsman, by showing the importance of accuracy ; but,
generally, it may be suggested that evert/ statutable circum-
stance which is required to happen or be done to create juris-
diction as a condition precedent should from the first appli-
cation by the mother or guardians be set forth. Statenient
of jurisdiction : R. v. Milner, 14 L. J. M. C. 157 ; 2 N. Sess.
Cas. 54. For example, the following points may be referred
to as raising questions fatal to the order : — As to the appli-
cation, see R. V. Fletcher, 40 L. J. M. C. 123. The absence
of a statement in the order that it was applied for within
forty days of the service of the summons on the putative
fiither, see R. v. Rose, 15 L. J. M. C. 6 ; 2 N. Sess. Cas.
166; Ex parte Boynton, 1 L. M. & P. 12 ; the residence of
the woman within the division : R. v. Higham, 26 L. J. M. C.

AFFILIATION. 41

116 ; the hearing having been in the presence of the party
summoned, B. v. Pearci/, 21 L. J. M. C. 129 ; 18 L. T. 238 ;
B. V. Duke of Grafton and others, 17 L. J. M. C. 125 ; 11 L.
T. 156 ; or before his solicitor or counsel : Ji. v, ^Shipper'
bottom, 16 L. J. M. C. 113 ; 2 N. Sess. Cas. 641 ; the direc-
tion for the payment of the maintenance-money : R. v.
Parhury, 5 Q. B. D. 126 ; the mother was confirmed in some
material particular : E. v. Mead, 9 A. & E. 619 ; 5 L. J.
M. C. 89. Reference to those cases will be sufficient to
point out the materiality of the special averments in the
order.

The drawing up of the order is the mere formal record Tbe oral
of the judgment, the actual judgment being the oral decla- judgment
ration of the decision of the bench ; and therefore the . ® ^'^^'
complainant has within a reasonable time the right to have
the record drawn up correctly : Ex parte Johnson, 3 B. & S.
947 ; 32 L. J. 193, overruling R. v. Flintshire, 15 L. J. M. G.
50, and the court has no power to amend the order, under
12 & 13 Vict. c. 45, s. 7, where the error is one in substance :
R. V. Parhiiry, 5 Q. B. D. 126.

An order wholly bad, as where there is a vital omission Bad order
to show jurisdiction, may, however, be abandoned as null may be
and void, and a second summons obtained, and a new order abandoned.
made : R. v. Brisby, 18 L. J. M. C. 157. It would not be
necessary, in such case, to quash the bad order on appeal, or
by certiorari, or even to tender the costs of the first
summons : R. v. Lanyon, 27 L. T. 355 ; WilMns v. Hems-
worth, 7 Ad. & E. 807. As regards the question of costs, Costs.
if the application were of the nature of a second one, the
justices would not be bound to entertain it until the costs
of the first had been either tendered or paid, and the de-
fendant replaced in his original position. R. v. Hindi fe, 10
Q. B. 356; 16 L. J. M. C. 78.

But where the order is good in part only, that part which Part of
is good may be enforced, provided it is clearly distinguish- °^'^^^ ^ood
able from, and is in no way dependent upon that part which ^^^j-ced
is bad. See R. v. Green, 20 L. J. M. C. 168 ; Ex parte Golley,
16 L. T. 319 ; see also R. v. Maulden, 8 B. & C. 78 ; R. v.
JSt. Nicholas, Leicester, 3 A & E. 79 ; i?. v. Winsfe?^ 19 L. J.
M. C. 185. In R. v. SfoJce Bliss, 6 Q. B. 158 ; 13 L. J. M. C.
151 (explained by Pattison, J., in R. v. Bolton, 14 L. J. M. C.
37), the principle is affirmed, that the bad portion being
ancillary to the good, the whole is bad.

After adjudging the man to be the father of the child. For what
the justices may, if they see fit, having regard to all the tJie order

may be
made.

42

AFFILIATION.

Order
formerly
ceased on
marriage
of the
mother.

Order not
to be made
after
marriage
of mother.

circumstances of the case, proceed to make an order (a) on
the putative father for the payment to the mother of the
bastard child, or to any person who may be appointed to
have the custody of such child of the said recited Act (6),
of a sum of money weekly, not exceeding five shillings a
week (r), for the maintenance and education of the child,
and of the expenses incidental to the birth of such child, and
of the funeral expenses of the child, provided it has died
before the making of such order, and of such costs as may
have been incurred in the obtaining such order ; and if the
application be made before the birth of the child, or within
two calendar months after the birth of the child, such weekly
sum may, if the said justices think fit, be calculated from
the birth of the child. The remainder of the section pro-
vides for the recovery of the money by distress, &c. ; and
see the Summary Jurisdiction Act, 1879, sec. 54.

Prior to 35 & 36 Vict. c. 65, s. 3, an order made for the
maintenance of an illegitimate child absolutely ceased on the
maiTiage of the mother (7 & 8 Vict. c. 101, s. 5), and her
husband is primd facie bound, under the Poor Law Act, 4 &
5 Will 4, c. 76, 8. 57, to maintain the child until it was
sixteen, or the mother died, but now the order is not ipso
facto void upon the mother's marriage ; but when made
whilst she is single, will on her marriage, continue alive,
and be enforceable under an order of the justices. Southeron
V. Scott, 50 L. J. M. C. 56 ; 6 Q. B. D. 518 ; 44 L. T. 522 ;
29 W. R 666 ; 45 J. P. 423.

A bastardy order cannot be made after the marriage of
the mother (c?), and who is at the time living with her hus-
band, although the summons may have been taken out be-
fore the mairiage, and service on the putative father was
prevented by his defaults : Tozer v. Lake, 4 C. P. D.
322. Nor can application be made for an order of affiliation
where the mother has married since the birth of such child,
and is at the time living with her husband. Stacey v. Lin-
tell, 4 Q. B. D. 291 ; 48 L. J. M. C. 108; 40 L. T. 553;

{a) See R. v. Padhury, 5
Q. B. D. 126, as to the form of the
order and Bastardy Orders Act,
1880.

(h) The "recited Act" re-
ferred to in the section in 7 & 8
Vict. c. 101, s. 5, provides for
the appointment of a guardian of
the child in case the mother
should be of unsound mind, in.

gaol or prison, or under sentence
of penal servitude, or her death,
such guardian being appointed
vdth his own consent.

(^) See R. V. Kay, L. R. 8
Q. B. 324.

id) See 4 & 5 Will. 4, c. 76,
s. 57, under which the husband is
bound to maintain his wife's
children born before wedlock.

AFFILIATION. 43

27 W. R. 551. Secus, where living apart from her husband,
see R. V. Collingwood, 12 Q. B. 681 ; and the liability will
not cease on the woman returning into cohabitation with
her husband. Ex parte Grimes, 22 L. J. M. C. 153 ; 17 Jur.
554.

An order of affiliation obtained before the marriage of the Order made
mother of the bastard cliild can be enforced after her mar- before
riage. The marriage does not now revoke the order, i^amage
Souiheron v. Scott ^ 6 Q. B. D. 518, although the husband is ^av'be^'^
able to maintain the child : Hardy v. Atherton, 7 Q. B. D. 264 ; enforced
44 L. T. 776 ; 50 L. J. M. C. 105 ; 29 W. li. 788 ; 45 J. P. after
683. In that case Huddleston, B., remarked—" In Southeron marriage,
v. Scott the point now before us was decided with one ex-
ception, viz. — that the question of the ability of the husband
to maintain the child was not introduced. I have consulted
Field, J., who says that the report does not quite convey
what he intended to say, which was, that in view of the
opinion of Lush, J., in Stacey v. Lintell, the question of the
discretion of the justices upon the hearing the summons
against the putative father to take into account the means
of the woman's husband, must be considered an open ques-
tion, but he entertains no doubt on the matter. I think the
justices have no discretion as has been suggested." And
Hawkins, J., remarked on the repeal of the proviso in sec. 5
of 7 & 8 Vict. c. 101, that no order of affiliation should re-
main in force after the marriage of the mother ; and that
since that repeal there was no ground for saying such orders
were suspended or of no avail during the marriage of the
mother. The only limits to their force are the child at-
taining thirteen, or sixteen in case of a special order, or its
death. Stacey v. Lintell only decides that when a woman is
married and living with her husband she can no longer be
deemed a "single woman," having power to apply for an
affiliation order under 35 k 36 Vict. c. 65. It is no autho-
rity for saying an order already made cannot be enforced
after her marriage (a). Whether the justices have no dis-

(«) In the above case of Hardy of law (4 & 5 Will. 4, c. 76, s.
V. Atherton, Hawkins, J., made 57) he has taken as a member of
the following considerate remarks his family. And I am glad that
on the bastardy law, which will it is so, for common sense and
receive universal approval : — " I common humanity tell me that
am glad that the ordef can be the putative father ought not to
enforced notwithstanding the be relieved from liability to con-
marriage of the mother and the tribute his share of the mainteii-
ability of the husband to support ance of his own offspring, at the
the child, which by compulsion expense of the man who has

44 AFFILIATION.

cretion but to enforce the order remains doubtful, the court
being divided in opinion in Davies v. Evans, 46 L. T. 418 ;
9 Q. B. D. 238 ; Grove, J., held they had a discretion.
The appeal. Upon the putative father, within twenty-four hours after
the adjudication and making of any order on him as such
putative father, giving notice of appeal to the mother of the
bastard child, and also within seven days giving sufficient
security by recognizance or otherwise, for the payment of
costs, to the satisfaction of a justice of the peace, he may
appeal to the quarter sessions holden after the period of
fourteen days next after the making the order for the
county, city, &c., for which such petty sessions may have
been held ; and which court is thereupon to hear and deter-
mine the appeal, and award such costs as it may think fit.
7 & 8 Vict. c. 101, 8. 4; 8 & 9 Vict. c. 10, s. 3, enacts that
the condition of such recognizance shall be for the appel-
lant's appearance at the sessions to prosecute his appeal,
and of his trial of the appeal thereat, and payment of any
costs as he may be ordered to pay : and having entered into
such recognizance he is forthwith to give a second notice
thereof in writing to the woman in whose favour the order
had been made ; and, unless he shall have entered into his
recognizance before one of the justices {a) making the order,
to one at least of such justices : in default of giving such
notices the appeal will not be allowed. The notices may be
sent by post.

marriei the woman who had the c. 3, and Button's Justice of the
misfortune to bear it, and who Peace, p. 34) ; but that even an
possibly may have a hard struggle illegitimate child may find itself
to support the family of which a member of some honest family,
he is legitimately the head, and and that the sole obligation now
to whom the contribution of him cast upon its parents is that each
who ought to bear it towards the may be compelled to bear his and
one foreign member may be of her own fair share of the main-
real importance. tenance and education of the un-
" I rejoice, too, to think that fortunate offspring of their
Biuce the days of Q. Elizabeth common failing."
our laws have been so far human- The order may, at the discre-
ized, that a bastard child is no tion of the justices, be made to
longer a mere thing to be terminate at the marriage of the
shunned by an overseer, whose mother, as was the case in Pear-
existence is unrecognised until it son v. Heys, 7 Q, B. D. 260 ; 50
becomesapauper,and whose only L. J. M. C. 124 ; 30 W, K. 156 ;
legitimate home is the work- 45 J. P. 730 ; 46 L. T. 681.
house ; that it is no longer per- (a) The taking the recogni-
missible to punish its unfortunate zance is merely a ministerial act,
mother with hard labour for a the justice cannot re-inquire into
year, nor its father with a whip- the matter; Ex parte Carter, 24
ping at the cart's tail (see 18 Eliz. L. J. M. C. 72 ; 24 L. T. 264.

AFFILIATION. 45

The "forthwith" means with such delay only as may be "Forth-
satisfactorily accounted for : Ex parte Lowe, 3 D. & L. 737 ; with."
15 L. J. M. C. 99 ; R. v. Gloucestershire, 16 L. J. M. C. 57 ;
or " with proper dispatch and without unreasonable delay : "
Lord Coleridge, CJ., in Hudson v. Hill, 43 L. J. C. P. 273,
277 ; R. V. Worcestershire, 7 Dowl. P. C. 709, Coleridge, J.

Although the notice of appeal need not be in writing, but Notice of
may be orally given, it is always advisable that it should be appeal,
given to the mother in writing within the tiventy-four hours
after the oral judgment, and not the drawing up of the
record. It must be specially noted the time is here limited
to twenty-four hours; and the only exclusion of hours is
when a Sunday intervenes. See R. v. Middlesex J J.,
17 L. J. M. C. Ill ; i?. V. Huntingdonshire J J., 19 L. J.
M. C. 127. The notices may be posted, 8 & 9 Vict. c. 10, s. 3.

It is not necessary to state the grounds of appeal. R. v.
Derbyshire, 1 New Sess. Cas. 411. The notice must be given
personally, or served by leaving it at the mother's residence
under such circumstances that it may be reasonably as-
sumed she received it. R. v. JVunn, 1 New Sess. Cas. 49 ;
R. V. Yorks. JV. R., ib. 574 ; 14 L. J. M. C. 91 ; 7 Q. B. 154 ;
R. V. Huntingdonshire, 19 L. J. M. C. 127.

The notice to the mother of the appellant's entering into
his recognizance need be no more than a bare notice, and
without giving any details of the conditions. On such a
notice the sessions cannot, excepting on the hearing of the
merits, confirm the order. The recognizance would be re-
turned to the sessions, and would show if the aj^pellant had
a locus standi in court. R. v. Holborow, 3 New Sess.
Cas. 723; 14 L. T. 201.

In R. V. Leeds {Recorder), 21 L. J. M. C. 171 ; 1 B. C. C. Notice
50, the appellant had been adjudged the father of twin where twin
bastard children. A separate order had been made in respect ^"hi'tlren
of each child. Notice of appeal was given in each case, and ^"^, ^^^
a separate recognizance entered into to prosecute. One
notice of the recognizance only was served on the mother,
stating that he had entered into his recognizance on an
appeal against an order " wdiereby he was adjudged to be
the father of tivo bastard children," etc. This notice was held
sufficient. See also as to the sufficiency of the information,
R. V. Oxfordshire, 4 Q. B. 177; 12 L. J. M. C. 40. As to
reasonable information, see R, v. Denbighshire, 9 Dowl. P. C.
509 ; 10 L. J. Al. C. 79.

The death of the moth;r will exempt the appellant from Where

giving the required notice. R. v. Leicestershire J J., 19 L. J. "mother

dead.

46 AFFILIATION.

M. C. 209 ; 15 L. T. 132. See farther as to the death of the
mother affectmg the appeal, p. 47, post.
Clerk to I^ ^^'ill ^^ the duty of the clerk to the justices to return

Justices to the recognizance to the clerk of the peace for the county or
return re- borough at which the appeal is to be heard. Upon the
cognizance appellant entering his appeal at the sessions he should ascer-
the Peace. ^^^^^ ^^^^ ^^^ recognizance has been so returned and lodged
with the proper officer, and that it will be ready for produc-
tion at the hearing.
Notices to On the case being called on, the api^ellant must be pre-
be proved pared to prove the service of his notice of appeal upon the
on hearing mother within the twenti/four hours after the oral decision of
appeal. ^i^g justices, Ex j^arts Johnson, 3 B. & S. 947 ; 32 L. J. M. C.
193 ; R. V. Middlesex, 17 L. J. M. C. Ill ; R. v. Huntingdon-
shire, 19 L. J. M. C. 127 {supra) ; the entering into his
recognizance within seven days after such decision ; and that
he " forthwith " gave notice thereof to the mother : Hudson
V. HiU, 43 L. J. C. P. 273, 277 ; R. v. Holborow, 14 L. T.
201 ; 3 New Sess. Cas. 773 ; and should the recognizance
not have been entered into before one of the justices making
the order, that notice of the recognizance had been given to
one such justice who had made the order (7 & 8 Vict. c. 10,
8S. 3 <fe 4).
The guar- When the guardians have obtained an order against the
dian^' right putative father for the maintenance of the bastard child (35
of appeal. & 36 Vict. c. 65, s. 8), he will, under sub-sec. 4, " have the
same right of appeal against such order as in the case of an
order obtained on the application of the mother."

This section gives the bare right of appeal ; but as by

sec. 10 the Act is incorporated with 7 & 8 Vict. c. 101, the

right of appeal will be subject to such notices of appeal, »tc.,

as are provided for by that Act. The 8 & 9 Vict. c. 10 does

not appear to be incorporated.

Interest The mother is equally, or perhaps more interested in the

of the result of such an appeal than the guardians, inasmuch as an

mother order made under the Act, and remaining in force, would, on

appeal ^^^^ ^^^ application for an order of affiliation, be j^rhrd facie

by the evidence that the man upon whom the order is made is the

guardians, father of the child : see sec. 8, sub-sec. 5, of 35 & 36 Vict.

c. 65.

And should the order be quashed on appeal, if made

during the time she could take action, it would be to her

prejudice on any application she might subsequently make.

Upon the application, however, being made within the

imited time allowed to her, it will be found in practice that

AFFILIATION. 47

she would, in most cases, be the complainiDg party, and not
the guardians ; the guardians would of themselves only be
called upon to take proceedings should the child become
chargeable after the mother's time to obtain an order had
expired. See ante, pp. 32, 33.

It has been previously noticed that where on the Decision of
appeal the appellant retires from his case on a preliminary sessions
objection he had himself taken, and the order was tliereupon J^^^.^^
confirmed by the sessions without hearing the evidence of
the mother according to the language of the statute, the
High Court held that such a decision by the superior tribunal
was final: R. v. Buckinghamshire, 18 L. J. M. C. 113 ; 3
N. S. C. 500. And generally it may be said that a decision
by the quarter sessions on appeal upon " merits " is final :
see ante, p. 40, B. v. Machen, B. v. Glynne. But to be final
there must be a hearing ; a decision in the absence of the
mother, who is not present in consequence of some accident
or mistake of the day, is not final : see ante, p. 39 ; B. v.
Essex, or May, and other cases.

There is, however, one other point of importance.

We have seen that no order can be made by the petty Death of
sessions in the first instance without the presence of the t^e mother
mother, and the corroboration of her evidence. After the °®^*'^®
order has been made, and the putative father has commenced teard.
his appeal, the statute is silent as to the course of procedure
in case of her death ; but by sec. 6, 8 & 9 Vict. c. 10, the
evidence of the mother on the appeal is as imperative as at
the petty sessions.

The only authorities on this point since the statute are The admis-
judicial dicta of Pattison, J., and Hannen, J. ; the one is in sion of her
B. V. Leicestershire, 19 L. J. M. C. 209; 15 L. T. 132 ; Reposition
where the woman died, and the appellant was held to be JiJ,^Mfd°*^*
excused from the service of the notice of his recognizance on
her, the duty imposed by the statute being rendered im-
possible by the act of God ; and a mandamus was granted
directing the sessions to hear the appeal. The difficulty
was incidentally discussed in that case as to how the sessions
could " hear " the appeal without the evidence of the mother,
which under 8 & 9 Vict. c. 10, s. 6, the sessions " shall hear,"
and which must be corroborated. B. v. Bavenstone, 5 T. R.
373 ; and B. v. Clayton, 3 East, 58 {a), were referred to as
holding that the examination of the mother was admissible

(a) " The decisions in these cases cannot be supported ; " see
2 Stark, on Evid. 3rd ed. 438 ; note, 19 L. J. M. C. 210.

48 AFFILIATION.

in evidence after her death ; but Pattison, J., said he could
not understand the ground of those decisions, and added,
" There would, no doubt, be some person who could prove
what had been stated by the mother in the presence of the
appellant." The like suggestion was made by Hannen, J.,
in B. V. Armitage, 42 L. J. M. C. 16 ; L. R. 7 Q. B. 773. Fol-
lowing their lordships' suggestions, the clerk to the justices
should be a witness to give evidence of w^hat he heard the
mother state " in the presence of the appellant " before the
justices below. Should the sessions think it right to receive
such evidence, the legal value of the testimony may be
directly brought under consideration on a case reserved for
the opinion of the High Court. It does not seem that the
" suggestions " can be acted on as law.

The admission of such evidence would appear to be an

indirect way of following the above cases of E. v. Bavenstone

and M. v. Clapton, which Pattison, J., said he could not

understand. Starkie, in his work on Evidence, 3rd edit.

p. 438, says : — " They are decisions contrary to general

principles, and the cases which the court relied upon for

their decision are in direct opposition to them."

Mainte- The sessions may reduce the amount directed to be paid

nance may for the maintenance and education, or on account of the

be reduced, ^^j.^f ^f ^^^ ^.j^-^^j^ ^^^ ^^^ ^^^ ^^^^j. ^^^^ : 35 & 36 Vict.

c 65, s. 9.
Putative The putative father may be a witness : 14 & 15 Vict.

father a c. 99, 8. 2.

witness. rpj^g appeal may be abandoned at any time before the

Appeal hearing on the appellant giving notice thereof in writing to
abandoned. ^^<^ mother, and paying or tendering to her all the sums due

under the order, and her costs and expenses : 8 Vict. c. 10,

s. 5.
Sum. Juris. The Summary Jurisdiction Act, 1879, applies to the levy-
Act, ing of sums to be paid under an order in any matter of

bastardy, or of affiliation : Summary Jurisdiction Act, s. 54.

See B. V. Montgomeryshire, 50 L. J. M. C. 95-6, Field, J.
Enforcing As to the propriety of enforcing the order pending an
order appeal, although the appeal is no stay of the order, see

pending Kendall v. Wilkinson, 24 L. J. M. C. 89.
appeal. ^^ ^^ proceeding against a soldier for the maintenance of

Proceeding ^ i3astard child, see sec. 139 of the Army Discipline Act,
against 1070 J r >

soldiers. lo/y.

ALEHOUSE — THE LICENSING ACTS. 41)

AGRICULTTJIlAIi GANGS ACT, 1867.

30 k 31 Vict. c. 130.

A GANGMASTER, wlio hires " children " (under the age of
thirteen), " young persons " (of the age of thirteen, aud
under eighteen), " women" (of above the age of eighteen),
for employment in agricultural labour on lands not in his
own occupation (sec. 1), cannot do so without obtaining a
licence, sec. 5 ; and no person holding a liquor licence can
have one granted to him : sec. 6.

Under sec. 7, two or more justices in petty sessions may
grant such licences on proof of the good character and fitness
of the applicant. To such licence may be a condition
annexed, limiting the distances within which children em-
ployed are to travel on foot to their work ; for non-com-
pliance with this condition the gangmaster is liable to a
penalty of ten shillings in each case.

It is only on the refusal to grant the licence, the party
becomes "aggrieved," and can appeal to the next practicable
court of general or quarter sessions ; and such court may
grant the licence. There is no general appeal upon con-
victions under the Act. As to the procedure on the appeal,
see Baines' Act, 12 & 13 Vict. c. 45 ; Ux parte Blues, 5 E. &
B. 291. The justices refusing the licence would be the re-
spondents, and should be personally served with the notice
of appeal. See H. v. Bedfordshire, B. v. Cheshire, Curtis v.
Buss, and S. C. Ex parte Curtis, infra, p. 72.

ALEHOUSE— THE LICENSING ACTS.

9 Geo. 4, c. 61 (1828) ; 35 <fe 36 Vict, c 94 (1872) ;
37 & 38 Vict. c. 49 (1874).

Portions of the Act, formerly known as the Alehouse Act, The princi-
still remain in force, notwithstanding the many alterations pal Act,
made in the governance of licensed houses for the sale of ^^^^*
intoxicating liquors since 1828, when the 9 Geo. 4, c. 61
(now termed, under sec. 74, Act 1872, "The Intoxicating
Liquor Licensing Act, 1828"), w^as passed. By that Act
the licensing laws were consolidated, and the regulations
for the sale of intoxicating liquors was brought absolutely
under the control of the magistrates, and the foundation for
the present licensing system was laid.

D

50

ALEHOUSE — THE LICENSING ACTS.

Throughout England generally annual licensing meet-
ings (a) (Act 1828, sec. 1), are held for the granting licences
"to persons keeping, or about to keep inns, alehouses, and
victualling houses, to sell excisable liquors by retail, to be
consumed on the premises," and at which meetings the
justices not disqualified from acting are to grant licences
to such persons as they may in the exercise of their discretion
deem fit and proper (6).
When A justice is disqualified from acting in the case of a

justices not licence to be granted in respect of a house in the profits of

Licences

granted

under Act

182S at

annual

special

meetings.

(a) In Middlesex and Surrey
the annual licensing meetings
are to be held within the fii-st
ten days in March ; and in the
other counties on some day be-
tween the 20th August and the
14th September.

Section 2, Act 1828, provides
for how the meeting shall be
convened.

(b) Under the Wine and Beer-
house Act, 1869, 32 & 33 Vict. c.
27, 8. 8, all the provisions of the
Act 1828 as to the grants of li-
cences at the annual licensing
meetings are made applicable to
the grant of certificates for the
sale by retail of beer, cider, or
wine not to be consumed on the
premises ; subject, however, to
the qualification that no appli-
cant can be refused his certificate
except : —

1. That he fail to produce
satisfactory evidence of his
character: see Ex parte Morgan,
23 L. T. 605, Q. B. ; R. v. Pilgrim,
L. R. 6 Q. B. 89 ; 40 L. J. M. C.
3 ; 23 L. T. 410 ; 19 W. R. 99.

2. That the house or shop to
be licensed, or any adjacent house
or shop, owned or occupied by
the applicant, is a disorderly
nouse or frequented by thieves,
prostitutes, or persons of bad
character.

3. That the applicant had
previously held a licence which
he had forfeited for misconduct ;
or had at any time previously
been adjudged a disqualified
person.

4. That the house i8 not duly
qualified.

Should the justices refuse the
certificate on the 4th objection,
they are to specify in writing the
grounds of their decision.

The justices, on refusing the
licence, must state on which
ground it has been refused : 11. v.
Bedwelty, 38 J. P. 807 ; R. v.
Sylies and another, Huddersjield
JJ., 45 L. J. M. C. 39 ; 1 Q. B. D.
52 : .33 L. T. 566 ; 24 W. R. 141 ;
whether asked or not to do so :
R. V. lurrey, 42 J. P. 598.

The justices cannot amend the
omission by affidavit on showing
cause against a rule for a manda-
mus to hear and determine the
application : jEx parte Smith, 3
Q. B. D. 374, S. C. eo nam.: J2. v.
Chertsey (Surrey), 47 L. J.
M. C. 104.

The justices are bound to hear
evidence as to the necessity for a
new house in the neighbourhood :
R. v. Lancashire, L. R, 6 Q, B.
97 ; 40 L. J. M. C. 17 ; see also
Ex parte Bendall, 42 J. P. 88 ; R.
V. Smith, ih. 295 ; R. y. Kent, 41
J. P. 203.

The qualification of the annual
value of £15 at the least of the
house to be licensed for the sale
of beer must be under one rating :
see 3 & 4 Vict. c. 61, sec. 1 ; 33
& 34 Vict. c. 111. A house and
shop may so communicate as to
be included in one rate in the
same parish : see Preston v.
EucMer, L. R. 5 Q. B. 391 ; 39
L. J. M. C. 105 ; 22 L. T. 653 ;

ALEHOUSE — THE LICENSING ACTS. 51

which he is interested henejlcially ; but the being possessed qualified to
of the mere legal interest will not disqualify him : Act 1872, 8^*°* ^
sec. 60. ^^'^^'^•

A justice knowingly acting when disqualified, is considered
liable to a penalty of XI 00 : ih.

A recorder, by virtue of his office, cannot act in any The re-
manner in the granting the licence \ nor can he hear an corder.
appeal in any question respecting the licence. See R. v.
Deane, 2 Q. B. 96 ; ^. v. Bristol Recorder (Sir A. Cock-
burn), 24 L. J. M. C. 43; 4 E. & B. 2^6-, 5 k Q Will. 4,
c. 76, s. 105.

Beyond the limits of the jurisdiction of the metropolitan Metropoli-

police courts (a), a metropolitan police or stipendiary magis- tan and

trate may act as one of the justices empoAvered to arrant or stipendiary
a V c 1 T -j-i-j. mafjifetrates

confarm licences, so tar as regards any licensmg district acthif^

wholly or partly within his district. Act 1872, sec. 39 ;
see also 2 & 3 Vict. c. 71, s. 14 ; 21 & 22 Vict. c. 73, ss. 3, 4 ;
26 & 27 Vict. c. 97.

Justices of the Peace for the Cinque Ports are appointed Cinque
under 50 Geo. 3, c. 36 (1811), s. 1 ; but by sec. 2 they were Port
deprived of the power to act in the granting of " licences or J'^^*^'^^-'^-
certificates for licences to any victualler " within any Cinque
Port or liberty thereof. By sec. 11 of 6 & 7 Will. 4, c. 105,
the power to grant alehouse licences was conferred on the
Cinque Port justices within the towns of Hastings, Sandwich,
Dover, and Hythe, and the ancient town of Rye, and the non-
corporate members thereof; and also within the towns of
Deal, Faversham, Folkestone, and Tenterden, which shall
not have justices assigned to them, by virtue of 5 & 6 Will. 4,
c. 76, s. 98 (The Corporation Reform Act).

18 W. R. 1104 ; Garetty v. Potts, ing the 74th sec. Act 1872 : R. v.

L. R. 6 Q. B. 86 ; 40 L. J. M. C. Smith, L. R. 8 Q. B. 146 ; 42

1 ; 23 L. T. 554 ; 19 W. R. 127. L. J. M. C. 46, has been taken

But where one portion of the away by sec. 27, Act 1874. As

premises was situate in an ad- to the preliminary notices, see

joining township, and the two 32 & 33 Vict. c. 27, sec. 7 ; 33 &

portions were separately rated in 34 Vict. c. 29, sec. 4, sub.-s. 1 ;

each jurisdiction, and neither 35 & 36 Vict. c. 94, sec. 40 ; R.

being of the required value of v. Yorkshire W. R. {Drahe's case),

£15, although of that amount in L. R. 5 Q. B. 33 ; 39 L. J. M. C.

the aggregate, — this was not a 17 ; 18 W. R, 259.
sufficient qualification as " one " (a) This jurisdiction includes

rating : Jennings v. Manchester, all Middlesex, and a radius

22 L. T. 412, Ex. around Charing Cross in Surrey,

The right of appeal to the Hertford, Essex, and Kent, of

quarter sessions, which was held fifteen miles,
to have remained notwithstand-

D 2

52 ALEHOUSE — THE LICENSING ACTS.

By sec. 5, 18 <fe 19 Vict. c. 48, the above sec. I, Act 1881,
was so far repealed as it aifected any place to which a charter
of incorporation might be granted ; but now by sec. 1 of the
Cinque Ports Act, 1869, 32 & 33 Vict. c. 53, s. 5 of 18 ik
19 Vict. c. 48, is to be read as if *'the grant of a court of
quarter sessions " had been therein referred to instead of the
grant of incorporation ; see also 20 & 21 Vict. c. 1.

Under sec. 5, 51 Geo. 3, c. 61, the justices of Essex may
grant victualling licences within Brightlingsea as if it were
in the county of Essex, and was not a liberty of the port of
Sandwich ; and by sec. 8, the justices of Kent are in like
manner authorised to act within Beakesbourne and Grange
(in Kent) part of the liberty of Hastings.
County The 8th sec. Act 1828 excludes the jurisdiction of the

justices no county justices from putting that Act in execution within
jurisdic- ^ny of the Cinque Ports or the two ancient towns, or any of
th*"cTn u° *^® corporate or other members' liberties thereof ; but
Ports the justices of and for each of the principal Cinque Ports and

under Act two ancient towns (not being disqualified), and none other,
1828. are authorised to act within the same and each of the corpo-

rate members belonging or subordinate to such principal port
or town, with the justices of each of such corporate member
for the granting and transferring licences and hearing com-
plaints as to offences against the Act, and in which cases the
county JJ. could act.
f.'oncurrent By sec. 38, Act 1872, it is enacted that after the passing
junsdic- of tjjat Act, the county justices shall not for licensing pur-
•'^" t poses, save in so far as respects the power of appointing

justices in members of ft joint committee, have any jurisdiction in a
boroughs borough in which the borough justices have for such pur-
abohshed. poses concurrent jurisdiction. This positive language seems
clearly to repeal the 7th sec. Act 1828. That section pro-
vided for the concurrent jurisdiction of the county justices
where there should not be present at least two justices
acting for a borough at a licensing meeting ; and in such
event the county justices might be present and act ivith the
borough justice or justices for the purpose of granting or
transferring licences and hearing complaints on offfences
under the Act. Where the borough charter contained no ne
intromittant clause the county justices had concurrent juris-
diction in the borough. R. v. Sainshury, 4 T. R. 457 ;
Brown v. Nicholson, 28 L. J. M. C. 89 ; Chandlish v. Simpson,
30 L. J. M. C. 178.
Applica- Should a certificate be refused at a licensing meeting, on a

tions for ground personal to one applicant, this would be no bar to an

ALEHOUSE — THE LICENSINQ ACTS. 53

application being made at an adjourned meeting by another a certificate
for a licence in respect of the same premises. It would be or licence
otherwise if the first decision had turned on the unfitness or ^^^ "®
bad character of the house : H. v. Yorkshire W. E., Drake's adiou'-ned
case, 39 L. J. M. C. 17 ; L. R. 5 Q. B. 33; 18 W. R. 259. meetiBgs.
But the same person cannot as of right renew his application
at the adjournment, unless, however, in the case of hardship,
or surprise, as suggested by Cockburn, C.J. : Ex parte Rush-
worth, 23 L. T. 120.

An original notice may be given for the application for a Original
licence twenty-one days before the adjourned meeting, when application
the requirements of sec. 7, 32 & 33 Vict. c. 27, the Wine °^*^ ^^
and Beerhouse Act, 1869, were complied with; R. v. Yorkshire adjourned
IV.R., Di-ake^s case (sup.). The notice under sec. 7 is now meetings,
applied to all licences : Act 1872, s. 40, sub-s. 1 (a).

The Act 1872, sec. 37, creates a new jurisdiction called The licens-
" the county licensing committee," or confirmation com- ^^S com-
mittee. It will consist of not less than three nor more than ^^^^^f ^°
twelve members, and three will form a quorum. The com- ^^^g ^qj^. '
mittee will be " a standing committee." firming

In counties the grant of a new licence will not be valid authority,
unless it be confirmed by such "standing committee." It
is this part of the section which defines the sole jurisdiction
to the committee, which is to confirm the licence newly
granted.

The committee is to be appointed annually, which is Appoint-

(a) Under sec. 7 of the Wine licensed for the sale by retail of Notices for

and Beerhouse Act, 1869, every beer, cider, or wine, such person certifi-

person intending to apply for a shall also, within the space of cate and

certificate under the Act shall, twenty-eight days before such licence,

twenty-one days at least before application is made, cause a like

he applies, give notice in writing notice to be affixed and main-

of his intention to one of the tained between the hours of 10

overseers of the parish, township, a.m. and 4 p.m. of two consecu-

or place in which the house or tive Sundays on the door of such

shop in respect of which the ap- house or shop, and on the prin-

plication is to be made is situate, cipal door or on one of the doors

and to the superintendent of the of the church or chapel of the

police of the district (33 «k .S-i parish or place in which such

Vict. c. 29, s. 3) ; and shall, in house or shop is situate, or if

such notice, set forth his name there be no such church or chapel

and address, and a description of on some other public and con-

the licence or licences for which spicuous place within suoh parish

he intends to apply, and of the and place. It will be sufficient

■ituation of the house or shop in if the notice be given twenty-one

respect of which the application days before the adjourned licens-

is to be made ; and in case of a ing meeting : R. y. YorTtthire

hoase or shop not theretofore W. R., Brake's oa. (^rup.)

54

ALEHOUSE — THE LICENSING ACTS.

ment of the
" Stand-
ing Com-
mittee."

Determina-
tion of
questions
by the
county
committee.

No new, or
removal of,
licence in
counties
ralid with-
out con-
firmation.

The licens-
ing and
confirma-
tion com-
mittees in
boroughs.

No new-
licence
granted in
a borough
valid
unless
confirmed.

Where
there are
not ten
justices
in the
borough
a " joint
committee'
appointed.

usually done at the October quarter sessions. More than
one " standing committee " may be appointed for a county
with a defined area of jurisdiction. And for the transaction
of the business the sessions may make regulations as they
may think fit. The clerk of the peace will act as the officer
of the court as at quarter sessions.

As no provision is made in this Act, as there is in refer-
ence to the committee in boroughs directing how the com-
mittee are to vote, the determination of the county committee
will be taken as under sec. 3, Act 1828, by the majority;
and the licence be signed with official seal as under sec. 40,
Act 1872.

Under sec. 37, Act 1872, no new licence granted in
counties will be valid unless confirmed by the standing
county committee.

No order for the removal of a licence will be valid
unless confirmed by confirming authority : Act 1872,
sec. 50.

In boroughs where there are ten justices or upwards
acting in and for the borough at the time of the annual ap-
pointment, new licences will be granted by a committee who
shall for such purpose perform all the duties, and be sub-
ject to all the obligations of licensing justices.

Such committee will be appointed annually, in the fort-
night preceding the commencement of the period during
which the general annual licensing meeting may be held,
and will consist of not less than three or more than seven
qualified members, and of those three will form a quorum.

But the grant of a new licence by the borough licensing
committee will not be valid unless confirmed by the whole
body of borough justices, who would, if the Act had not
passed, have been authorized to grant licences ; or by a
majority of such body present at any meeting assembled for
the purpose of confirming such licences: Act 1872, sec. 37,
So also as to a removal of a licence, sec. 50.

In boroughs where there are not the ten justices, new
licences are to be granted by the qualified justices, but such
licences will not be valid unless confirmed by a joint com-
mittee appointed in respect of such borough after the follow-
ing manner (a) : —

The joint committee for such borough is to consist of three

(a) As to the saving the privi-
leges and rights of the Univer-
sities and St. Albans, see Act

1872, 8. 72. See also Act 1828,
s. 36 ; Act 1869, s. 20.

ALEHOUSE — THE LICENSING ACTS. 55

county justices and three of the borough justices. The
county justices are to be appointed by the county licensing
committee, and the borough justices on such joint com-
mittee are to be appointed by the borough justices, or a
majority of them at a meeting assembled for that purpose.
The quorum of such committee will be five, and the chair-
man will have the casting vote (a). Act 1872, sec. 38.

No objection can be made to any licence granted or con-
firmed under this section on the ground that the justices
acting were not qualified (ib.).

Where by reason of there not being three qualified borough
justices to form the quota under the preceding sec. 38,
Act 1872, the deficiency in number is to be supplied by
qualified county justices to be appointed by the county
licensing committee, sec. 21, Act 1874. This section will
counterbalance sec. 7, Act 1828. See ante, p. 52.

Although the original jurisdiction for the granting of the Absolute
licence *Ho sell excisable liquors by retail to be drunk or jurlsdic-
consumed on the premises," under sec. 1, Act 1828, remains *^°^ *°
in the absolute discretion of the justices at their annual ^g^g*
licensing meetings ; yet in lieu of any appellate jurisdiction retained
of the quarter sessions (which is now taken away) each grant justices,
of a new licence, or a removal of a licence, is subject to the ^^* ^?"
confirmation of the ''standing committee," whose decision ^^^j^ ^°^
is final : Act 1872, sees. 37, 38 ; E. v. Eoivell, L. R. 7 appellate
Q. B. 490 ; 41 L. J. M. C. 175; 26 L. T. 732; HargravesY. jurisdic-
Dawson, 24 L. T. 428 ; and they may, and ought to take ^^o^-
into consideration the number of licensed houses in the
neighbourhood. R. v. Lancashire, In re Tyson, L. R. 6
Q. B. 97; 40 L. J. M. C. 17; 23 L. T. 461; 19 W. R.
204.

The renewal or transfer of a licence is not subject to the Appeals
confirmation of the committee ; but in respect to them the preserved
full rights of appeal are preserved under the appellate ^^ *'^/®" ,
clause 27, Act 1828. See Act 1872, sec. 42 ; Act 1874, transfers^of
sec. 26. licences.

No person can appear to oppose the confirmation of a Procedure
grant of a new licence before the confirming authority, who on con-
has not appeared in opposition to the grant of the licence ^J^^^ion
before the licensing justices: Act 1872, sec. 43. The °^ ^'''^''*^®'
party so opposing will not be restricted in his evidence to
that which was before the licensing justices. It was so held

(a) Rules of procedure may be made by the joint committee :
Act 1874, s, 25.

56

ALEHOUSE— THE LICENSING ACTS.

Orders for
the re-
movals of
licences.

Eestric-
tions on re-
moval of a
licence.

JJ. same
power as
with a new
licence.

Qualifica-
tion of
premises
by value
for a
licence.

in reference to an appeal to the quarter sessions, and the
same principle will apply under sec. 43. B. v. Filgrim,
L. R. 6 Q. B. 89 ; 40 L. J. M. C. 3. Post, p. 61.

For the removal of licences from one part of a licensing
district to another part in the same district, or to another
district in the same county, the following regulations will
have to be observed : —

1. The application for an order sanctioning removal shall
be made by the person desiring to be the holder of the
licence when removed, and shall be made at a general
annual licensing meeting, or any adjournment thereof, to
the justices authorised to grant new licences in the licensing
district in which the premises are situated to which the
licence is to be removed.

2. The like notice must be given as for the grant of a
new licence. See ante, p. 53, n.

3. A copy of the notice is to be served personally or by
registered letter on the owner (a) of the premises from
which the licence is to be removed, and the holder of the
licence, unless he is also the applicant.

4. The justices to whom the application is made shall not
make the order sanctioning such removal unless they are
satisfied that no objection to such removal is made by the
owner of the premises to ivhich the licence is attached, or by
the holder of the licence, or by any other person such
justices shall determine to have a right to object to such
removal.

5. Subject as aforesaid, such justices shall have the same
power to make an order sanctioning such removal as they
have to grant new licences ; but no such order shall be
valid unless confirmed by the confirming authority of the
licensing district. Section 50, Act 1872.

Sec. 45, Act 1872, sets forth the annual value, as defined
by sec. 47, required for premises to be licensed after the
passing the Act 1872, and to which no licence under the
Acts recited in the Wine and Beerhouse Act, 1869, autho-
rising the sale of wine and beer for consumption thereon, is
attached.

The following conditions must be satisfied : —
The premises, unless they be a railway refreshment room,
shall be of not less than the following annual value : —

If situate within London, or its liberties, or parish

(a) The registered owner, under sec. 36, Act 1872.

ALEHOUSE — THE LICENSING ACTS. 57

subject to the jurisdiction of the Metropolitan Board
of Works, or within the four miles radius of Charing
Cross, or within the limits of a town containiug a
population of not less than 100,000 inhabitants, £50 ;
or if the licence do not authorise the sale of spirits,
X30 per annum.

If situate elsewhere, and within the limits of a town
containing not less than 10,000 inhabitants, £30; if
the licence do not authorise the sale of spirits, £20
per annum.

If elsewhere, and not within any such town, £15 ; or if
not for the sale of spirits, £12 per annum.

The structural adaptation of the premises is also pro-
vided for, so that, in addition to the rooms used by the
family, there shall be where the licence authorises the
sale of spirits, two rooms, and if the sale of spirits be
not authorised, one room, for the accommodation of
the public.

This section does not apply to houses which had their
licence as "public-houses" under the Act 1828, and before
the passing the Act 1872. R v. Mason, L. R. 8 Q. B. 235 ;
42 L. J. M. C. 35 ; 27 L. T. 847.

Sec. 47 defines the annual value to be ascertained in the
same manner as the annual value is found under the Poor
Law Assessment Acts.

The following persons are disqualified from holding a
licence (a) : —

1. A sheriflf's officer executing the legal process of any

court of justice. Act 1826, s. 16 j see 11 Geo. 4,
and 1 WiU. 4, c. 64, s. 2.

2. Any person forging or tendering a forged certificate

as authorised under the Wine and Beerhouse Act,
1869, knowing the same to have been forged.
The Wine and Beerhouse Act, 1869, s. 11.

3. Every person convicted of felony (6), ib., s. 7.

As to the sale of beer, see 3 & 4 Vict. c. 61, s. 7.
As to the sale of wine, see 23 & 24 Vict. c. 27, s. 22.
As to the sale of spirits, see 33 & 34 Vict. c. 29, s. 14.

(a) As to the owner's right to man who had for some years

continue a licence forfeited, on after his conviction conducted a

the conviction of the licensee, licensed house respectably, H.

see Act 1874, s. 15, v. Vine, L. R. 10 Q. B. 195 ; 44

(J) The provision is retrospec- L J. M, 0. 60 ; 31 L. T. 842 ; 23

tive, and was enforced against a W. R. 649 ; 13 Cox, 43,

D 3

58

ALEHOUSE — THE LICENSING ACTS.

Disqualifi-
cation of
licensed
premises*

4. Ou a second conviction for selling liquors without
a licence, by order, disqualification for any term
not exceeding five years :

On a third and subsequent offence, by order, dis-
qualification for any term of years or for ever.
Act 1872, sec. 3.

5. Every person convicted of permitting his premises to
be a brothel. Act 1872, sec. 15.

6. Upon a second conviction of harbouring thieves, the
licence is ipso facto forfeited, and the offender
disqualified for two years (on the first offence the
licence may be forfeited by order). The Prevention
of Crimes Act, 1871, 34 & 35 Vict. c. 112, s. 10.

t. Where two convictions have been recorded against a
licensee he will be disqualified for a term of five
years from the date of the third conviction from
holding a licence, and at the discretion of the
court the premises may be disqualified {for two
years).

8. But the licensee will still remain liable to any pecu-
niary penalty or any term of imprisonment to which
he would otherwise be liable, or preclude the court
from acting under any other section of the Act for
disqualifying such person or premises for a longer
period. Act 1872, sec. 30.

Further as to the disqualification of the premises, see
post, p. 88,

The licence means a licence for the sale of intoxicating
liquors granted by justices in pursuance of the Intoxicating
TLelicence. Liquor Licensing Act, 1828, including a certificate of justices
granted under the Wine and Beerhouse Acts, and including
a licence for the sale of sweets, which is (by the Act) autho-
rised to be granted in the same manner as if sweets were
wine, and including a licence for the retail of spirits granted
to a wholesale spirit dealer by the justices in pursuance of
the Act {a). Act 1872, s. 74.

Defini
tlons.

(a) A grocer, holding a wine-
dealer's excise licence, granted
under 6 Geo. 4, c. 81, s. 2, and for
which the annual duty of £10 lOs.
is payable, is entitled without
any certificate of justices, to sell
by retail wine to be consumed
off the premises. He is a " wine
merchant" within sec. 73, Act

1872, holding a licence under the
Commissioners of Inland Ke-
venue, and not liable to be con-
victed under sec. 3, ih. : Palmer
T. Thatcher, 3 Q. B. D, 346 ; 47
L. J. M. C. 54 ; 37 L. T. 784 ; 26
W. R. 314 ; as to a canteen
licence, see The Army Discipline
Act, 1879.

ALEHOUSE — THE LICENSING ACTS. 59

The " neio licence" is defined by sec. 32, Act 1874, to mean The new
a licence for the sale of any intoxicating liquor granted at a ^^^ence.
general annual licensing meeting in respect of premises for
which a similar licence has not before been granted.

This definition will become material when considering the
operation of sec. 50, Act 1872, as to the ^^ removal of a
licence" from one district to another, and whether a removal
may not in fact be the same as granting a " wei(^ licence. "
There is no specific definition of a " removal of a licence."

Sec. 74, Act 1872, defines a "transfer of a licence" to Tramfer.
mean a transfer made at Special Sessions under the Act of
1828, sec. 4.

And, " renewal of a licence " to mean a licence granted at Renewal.
a general annual licensing meeting by way of renewal. See
Ex pane Tarheth, 31 L. T. N. S. 513.

The renewal of a licence must be made on a licence existing
during the previous year, and to such a renewal the definition in
sec. 74, Act 1872, refers. So where a new occupier of an inn was
refused a transfer of a licence on the ground of his conviction for
drunkenness ; and three years afterwards, at the first licensing
meeting after the owner could get possession of the house,
he applied for a renewal of the previous licence, and was
refused on the ground the neighbourhood did not require it.
The sessions on appeal determined (without going into the
merits) that they had no jurisdiction (a), as the application was
as for a new licence ; the Queen's Bench held the sessions to be
right. Ex parte Tarbeth, 31 L. T. 513, Q. B. ; see also H. v.
Cu7'zon, L. B. 8 Q. B. 400; 42 L. J. M. C. 155; 29 L. T. 32;
21 W. R. 886 ; Eargraves v. Daiuson, 24 L. T. 428, Q. B.

It is a new licence requiring confirmation where a licence is New licence
granted for a house which had previously only a wine and ^onse.
beer licence. Marwick v. Codlin, L. R. 9 Q. B. 509; 43 L. J.
M. C. 169 ; 30 L. T. 719 ; 22 W. R. 823.

The premises will be identified by description in the licence; Improve-
but reasonable additions to the original premises may be made ments
without aSectinor the licence. It is a question of fact for the y?^"^ *°
justices whether they remain substantially the same and premises
require only the renewal licence. R, v. Raffl.es, 1 Q. B. D.
207; 45 L. J. M. C. 61; 34 L. T. 180; 24 W. R. 536;
R. V. Smith, 15 L. T. 178, Q. B. If a licensed house has
additions made to it, it does not follow that the occupier

(a) See Ex parte Curtis, 26 37 L. T. 533 ; R. v. Kent JJ., U
W. K 210 ; S. C. Curtis v. Buss, J. P. 263.
3 Q. B. D. 13 ; 47 L. J. M. C. 35 ;

O

Go ALEHOUSE — THE LICENSING ACTS.

must give the notice provided for by Act 1829, sec. 7, as
*' for a house not theretofore kept as an inn."

The licence of an inn called Newill's Hotel, when granted
to N., did not include a shop on the ground floor which was
then let off. The licence was transferred to S. who took the
whole of the premises and added the shop to the hotel. S.
applied for a renewal of the licence at the accustomed time.
The renewal was granted as for the premises " theretofore
used as Newill's hotel, and lately in the occupation of N. and
used by her under and for the purposes of the licence gi'anted
to her in renewal of which the licence is granted." S. appealed
to the sessions against the insertion of this description ; on
a case, the Queen's Bench held the licence not irregular.
Stinger v. H udder sfield, 33 L. T. 568.
Necessitj It will be, of course, within the discretion of the justices
for any to make a grant of any new licence ; but it has been
new licence strongly remarked by the High Court that the justices
iusticcs ought in granting new licences to consider the number of
the houses in the neighbourhood already licensed, and to
refuse another licence if they consider another public-house
unnecessary. The question arose as to whether evidence of
that nature was admissible ; and Hannen and Lush, JJ.,
granted a mandamus to hear it. R. v. Lancasliire, L. R. 6
Q. B. 97 ; 40 L. J. M. C. 17 ; 23 L. T. 461 ; 19 W. R. 204 ;
R. V. Bendall, 42 J. P. 88 ; R. v. Smith, ib. 295. See the
definition of a "new licence" in sec. 32, Act 1874. These
remarks are equally applicable to an application for the
" removal " of a licence, and which in many instances may be
equivalent to the granting a new licence.
Removal It will be convenient here to consider the 14th section of

and trans- the Act 1828 as to the ''transfer" of a hcence, and 50th
ser li"^^"" section of the Act 1872 as to the " removal" of a licence.
Act 1828, ^11^ first, as to Act 1828, of which sec. 14 provides for the
and sec. 50, " transfer" of a licence in case the licensed person should (1)
Act 1872. (Jie ; — or (2) be rendered incapable of keeping an inn ; —
or (3) become bankrupt (or insolvent) ; — or (4) should any
peraon so licensed, or his representatives remove from, or
yield up possession of the licensed house ; — or (5) the occupier,
being about to quit the same, he should have wilfully omitted
or should have neglected to apply for a continuance of the
licence ; — or (6) if any "house being kept as an inn, by any
person duly licensed, shall be or be about to be pulled down,
or occupied under the provisions of any Act for the improve-
ment of the highways, or for any other public purpose ; — or
(7) shall be, by fire, tempest, or other unforeseen and unavoid-

ALEHOUSE — THE LICENSING ACTS. 61

able calamity rendered unfit for the reception of travellers
and for the other purposes of an inn ; it shall be lawful for
the justices at special sessions in any of the above cases, and
in such cases 07\ly, to grant to the heirs, tfec, of the person so
dying ; or to the assigns of the person becoming incapable ;
or to the assignees in bankruptcy ; or to any new tenant or
occupier; or to the person to whom such personal represen-
tatives may have sold the licence of the deceased licensee, a
licence to sell exciseable liquors by retail to be drunk and
consumed in such house or the premises thereunto be-
longing; or to grant to the person whose house shall have
been so pulled down or occupied for the improvement of the
highways, or for any other purpose, or have become unfit for
the reception of travellers or for other legal purposes of an
inn, and who shall open and keep as an inn, some other fit
and convenient house, a licence to sell exciseable liquors by
retail to be drunk or consumed therein."

By sec. 50, Act 1872, licences may he ^^ removed^' from Act 1872,
one part of a licensing district to another part of the same sec 50.
district; or from one licensing district to another licensing *' A'c-
district in the same county. moval."

This latter provision seems to be a large extension iu
general language of the last alternative in the above 14th
section of the Act 1828.

In sec. 14 there is an express limitation to the transfer
"in such cases only" as there mentioned ; in the 50th section
there is no such limit ; but the word " removal " is there
used as synonymous with "transfer."

The distinctions in the jurisdiction of the justices and the Distiuc-
procedure in obtaining a " transfer," era "removal" of a tions a?- to
licence are material. jimstlic-

The *' transfer " may be made at a special sessions called jj -^^
together for the purpose of transferring licences : Act 1828, grantin^^
sec. 14; and a temporary transfer of a licence, lasting " trans-
until the next ensuing special sessions, may be made at ^^^^ ''^
petty sessions in the discretion of the justices : 5 & 6 ^^^^^ j ^?^' r
Vict. c. 44, sec. 1 ; and in certain cases of convictions of the licences,
licensee who has thereby become personally disqualified to
hold the licence, the owner may obtain from a court of
summary jurisdiction authority to carry on the business in
the premises until the next licensing meeting. On a refusal
to transfer the licence the applicant has reserved to him his
right of appeal to the Quarter Sessions under Act 1828, sec.
27 ; Act 1872, sch. 2.

The "removal" of the licence can only be obtained at the

62 ALEHOUSE — THE LICENSING ACTS.

annnal licensing meeting, held in the district in which the
premises are situated to which the licence is intended to be
removed, and is subject to the confirmation of the com-
mittee in like manner as a new licence. There is no right
of appeal on the refusal to *' remove" a licence.
Procedure Notice of the intention to transfer a licence is to be
on *' tntns- served, by the person desiring the transfer, fourteen days
fer of a prior to one of the special sessions appointed for the granting
of such transfers, on one of the overseers of the parish, ttc,
in which the premises are situate in respect of which the
transfer is to be made ; and on the superintendent of police
in the district. The notice is to be signed by the applicant
or his authorised agent, setting forth the name of the person
to whom it is intended to transfer the licence, with his place
of residence and trade, or calling during the preceding six
months to the notice. Act 1872, sec. 40.

As to the application l>eing made by the owner in certain

cases, see Act 1874, sec. 15 ; Act 1828, sec. 14 ; 5 & 6 Vict.

c. 44, sec. 1.

Procedure Notice is to be given for the removal of a licence as if it

on "re- were an application for a ncio licence, and in addition, a copy

moval " of Qf ^jje notice must be {)ersonally served upon, or sent by

a cence. registered letter to the owner of the premises from which the

licence is to be removed, and to the holder of the licence,

unless he be the applicant.

The justices to whom the application is made shall not
make an order sanctioning such removal unless they are
satisfied that no objection to such removal is made by the
owner of the premises to which the licence is attached, or by
the holder of the licence, or by any other person whom such
justices shall determine to have a right to object to the
removal.

Subject as aforesaid the justices shall have the same
power to make an order sanctioning such removal as they
have to grant new licences ; but no such order shall be
valid unless confirmed by the confirming authority of the
licensing district {ante, p. 56).

It would seem from the peremptory language of this
section that upon an objection being made to the removal
of the licence by those having a legal right to make the
objection under the section, or whom the justices may deter-
mine have such right, the mere objection would be fatal to
the making the order. But a mere consequential grievance,
as that the interests of a neighbouring licensee may be
injured, will not be sufficient. See R. v. Middlesex, 8 B. <fe

ALEHOUSE — THE LICENSING ACTS. 63

Ad. 938. Although such a person might be permitted to
make a general objection that the neighbourhood would not
require any additional licensed house. See sec. 43, Act
1872.

The practical effect of the two sections seems to be, that Practical
in the " transfer " of a licence, included in the terms of the effect of
alternatives of the l-tth sec, Act 1828, the party applying ^^^- ^^»
for the transfer may still do so under that statute, and there ^^^ gg^ ^q
will be reserved to him the right of appeal to the Quarter Act 1872.
Sessions ; and cases may arise of great importance calling
for immediate action to protect the interests of the public
and the licensee, and on which the Statute 1828 can be alone
brought into operation. But where the application is for a
" removal " of the licence from one house to another, and
probably from one district to another, amounting in fact to
the granting of a new licence, and under circumstances not
included in the terms of sec. 14, Act 1828, then the proceed-
ing must be under sec. 50, Act 1872, and the " removal "
be subject to confirmation.

Sec. 42, Act 1872, impliedly repeab sec. 12, Act 1828, On a re-

and the personal attendance of the licensee is not now re- newal of a

quired at the Licensing Sessions unless under notice of ^^**',
^ ... '^ peTsonal

opposition. attendance

Before the justices can entertain any objection to the of licensee,
renewal, a written notice of such objection, stating the Unless
grounds on which the renewal will be opposed (Act 1874, objection
sec. 26), must be given to the licensee seven days before the ^^e*
annual licensing meeting. Act 1872, sec. 42.

But notwithstanding no such notice had been given, the How
justices may, upon an objection being made before them objections
(and which usually in such case is made by the police), ™*J **.
adjourn the grant to a future day, and specially require, meeting
by notice (a), the attendance of the licensee, when the of JJ.
case will be heard, and the objection considered, as if the without
notice had been in writing originally given : see Ji. v. Far- ^^^'^
quhar, L. R. 9 Q. B. 258 ; and subject to these restrictions,
the grant of the renewald is in the discretion of the justices.
Act 1872, sec 42 ; Act 1828, sec 1. See R. v. Lancashire,
R. V. Bendallj R v. Smith, ante, p. 60.

The justices renewed a licence on condition that the Conditional
hcensed premises should, before the next annual meeting, renewal
be improved and made of the annual value of £30, in

(a) This notice should state the grounds of objection as under Act
1874, s. 26.

64

ALEHOUSE— THE LICENSING ACTS.

Duty of
J J. to
refuse
renevral
on ground
shown.

Evidence
may be by
admission.

Remedy
■where JJ.
act without
notice to
licensee.
Mandamus
or appeal.

Renewal
not to be
granted
as of course ,

Continu-
ance of the
licence
pending
appeal.

Procedure
on appeal
on a re-
fusal to
renew.

Who may
oppose a
licence.

default of which the licence would not be renewed. It
was held the justices had no power to impose such conditions,
which were null and void, as the house had been licensed
under 9 Geo. 4, c. 61; and the sec. 45, Act 1872, as to the
improving the premises did not apply. R. v. Exeter or R. v.
Mann, L. R. 8 Q B. 235 ; 42 L. J. M. C. 35 ; 27 L. T. 847 ;
21 W. R. 329.

Where a licensee had been fined more than a nominal
Bum for an offence under the Act, and the justices had
refused to renew the licence, the Q. B. said the justices
would have abandoned their duty had they not refused to
renew the licence : R. v. Birmingham J J., 40 J. P. 132 ; on
such a refusal the licensee would not be allowed to renew
his application with rebutting evidence at an adjourned
meeting. Ex parte Rushivorth, 23 L. T. 120, Q. B.

The evidence is directed to be taken on oath ; but the
justices should act on admissions in lieu of the oath : R. v.
Kent JJ., 41 J. P. 263.

Where the justices have adjudicated on a renewal of a
licence without a sufficient notice to the licensee, the remedy
will be by mandamus to the Licensing Sessions to hear and
determine the case after proper notice. R. v. Farquhar, L. R.
9 Q. B. 258. Or the licensee may appeal to the Quarter
Sessions under sec. 27, Act 1828.

But on such appeal the licensee will not be entitled to
the renewal of the license as of course ; but the sessions
should hear and determine each case on its own merits :
See R. V. Kent JJ., 41 J. P. 263. Upon such an appeal
it would be better for the party objecting to the renewal
to give a counter-notice to the appellant, stating what
the objections are on which he will rely at the Quarter
Sessions.

Under sec. 53, Act 1872, pending an appeal against the
refusal to renew a licence, the Commissioners of Inland
Revenue may grant a permit to the licensee to carry on the
business.

For procedure on appeal on refusal to renew a licence, see
sec. 27, Act 1828, post, p. 67.

From the language of sec. 43, Act 1872, it would appear
that " any person " may oppose the grant of a new licence
in the first instance ; and that no other person can appear
and oppose the confirmation of the licence by the confirming
authority either in the county or borough ; and would
seem that though the opposition is so far restricted, Act
fresh and additional evidence may be given before the con-

ALEHOUSE — THE IJCENSINQ ACTS. 05

firming authority (a). See B. v. Pilgrim, L. R. 6 Q. B. 89 ;
40 L. J. M. C. 3.

The justices should exercise their full discretion, sec, 1, The
Act 1828, in each case judicially ; they cannot enforce rules bearing.
which would exclude proper evidence, nor can they refuse to The
hear parties having a right to be heard ; and if in pursuance ^^ ^?^
of such a rule they decline to hear counsel for the applicant, exercise
a mandamus would go to compel them to hold an adjourned their die-
meeting to hear and adjudicate on the case. R. v. Walsall, cretion.
3 C. B. R 100 ; 24 L. T. Ill ; see also R. v. iSylvester, 31
L. J. M. C. 93.

Where a judicial body are exercising a statutable power, Parties
the parties interested have an implied common law right to interested,
be heard. See Cooper v. The Wandsworth Boai'd of Works, f^°, ^j
14 C. B. N. S. 180 j 32 L. J. C. P. 185 ; 9 Jur. 1155 ; and "" ^^' '
the justices are bound to hear evidence tendered; R. v.
Lancashire, L. R. 6 Q. B. 97 ; 40 L. J. M. C. 17.

When the justices have in any manner heard and decided, When J J.
and thereby exercised their discretion in the matter, the ^'"i^e heard
superior court will not interfere, however wrong they may g-^j^j
have been in law or fact. See R. v. Kent J J., 41 J. P. decision
263; R. V. Boteler, 33 L. J. M. C. 103 ; R. v. Middlesex, final.
Slade's case, 2 Q. B. D. 516 ; 46 L. J. M. C. 225 ; 36
L. T. 402; 25 W. R. 610; R.y. Leicestershire, 1 M. & S. 442.

Any person possessing an estate or interest in premises The owner
licensed for the sale of intoxicating liquors, whether as owner, of licensed
lessee, or mortgagee, prior or paramount to the occupier, is houfe to be
entitled and may claim to be registered as owner or as one ^^^^^ ^^^ '
of the owners of such premises ; but where two or more
persons are jointly interested as owners, only one of such
owners will be registered as representing the estate : Act
1874, sec. 29. It is important to the owner that he should
have his name duly registered, for the protection of the
licence to the house in case of misconduct on the part of the
tenant and licensee. See Act 1872, sec. 56; Act 1874,
sec. 15. The owner's name will also be endorsed on the
licence : Act 1872, sec. 36.

''Occasional licences" may be granted by the Commis- Occasional
sioners of Inland Revenue, whenever they may consider it licences,
conducive to public convenience, comfort, and order, and
with the consent of one justice (26 & 27 Vict. c. 33, sec. 20),

(a) Tke proceedings before the sec, 43, Act 1872, if made within

confirming authority will be sub- their jurisdiction : see R. v. ParO'

ject to the rules and regulations lett, 29 L. T. 390, Q. B. Costs

to be made by the JJ. under may be granted, ib, sec. 43.

6(\

ALEHOUSE — THE LICENSING ACTS.

Special
occasional
licence for
licensed
premises.

Occasional
licence for
fairs and
races.

usually acting in the petty sessional division within which
the place of sale is situate, to any person duly authorized to
keep a common inn, alehouse, or victualling house, and who
shall have taken out a proper excise licence to sell therein
beer, &c., empowering him to sell the like articles for which
he shall have taken out such licences for any such other
place, and for and during such space or period of time not
exceeding three consecutive days, at any one time as the com-
missioners may approve and the licence shall specify. But
no such licence shall be granted for sale of any such articles
on any Sunday, Christmas Day, or Good Friday, or any day
appointed for a fast or public thanksgiving. 25 Vict. c. 22,
sec. 13.

The hours for the sale of any beer, wine or spirits, under
the occasional licence will extend from simrise to one hour
after sunset. In the case of any public dinner or ball,
one justice may grant special licences: 26 & 27 Vict. c. 33,
sec. 20. The Act 27 & 28 Vict. c. 18, sec. 5, gives power
to refreshment-house keepers to obtain the occasional licence.

The licensed victualler or keeper of a refreshment-house
in which intoxicating liquors may be sold, or (Act 1874,
sec. 5) a person licensed to sell beer (a) or cider by retail to
be consumed on the premises, may have an occasional licence
for special purposes relating to the closing the premises.
These occasional licences will authorise the licensee to sell
liquors only on the licensed premises. Act 1872, sec. 29.

By sec. 18, Act 1874, any person selling or exposing for
sale any intoxicating liquor in any booth, tent, or place
within the limits of holding any lawful fair or races without
an occasional licence authorising such sale, will be deemed
(notwithstanding any Act to the contrary) to be a person
selling or exposing for sale intoxicating liquor without a
licence, and be punishable accordingly (6). But this section
will not apply to a person selling liquors on premises duly
authorised. See Hayward v. Holland, 28 L. T. 702; 21
W. R. 920.

As to fairs, see 5 & 6 Ed. 6, c. 25, sec. 6 ; 35 Geo. 3,
c. 113 ; 6 Geo. 4, c. 81, sec. 11 ; 25 & 26 Vict. c. 22, sec. 12;
26 & 27 Vict. c. 33, sec. 21 ; Act 1869 (Wine and Beerhouse
Act) 32 & 33 Vict. c. 27, sec. 20.

(a) The justices have now a
"free and unqualified discre-
tion,"' to refuse or grant a licence
to sell beer off the premises : 45
& 46 Vict. c. 34 (passed 10th

August, 1882) ; repealing sec. 8
32 & 33 Vict. c. 27.

(Z») For the penalty, see Act
1872, sec. 3.

THE APPEAL. 67

Where a person sells the intoxicating liquor under an Irregular
occasional licence, which has been obtained in an irregular ^^^°^®-
manner under the sanction of a justice not usually acting
in the required petty sessional division, still the person will
be protected from penal consequences. Stevens v. Emson, 1
Ex. D. 100; 45 L. J. M. C. 63; 33 L. T. 821, C.A.

Tliere will be attached to each court a clerk to the licen- The clerk

sing justices, whose duty it will be to attend the court, and to the

keep the register of the licences containing the particulars licensing

of all licences granted in his district, the premises in respect ^^g ^j^g

of which they are granted, the names of the owners of the register of

premises, and the names of the holders for the time being licences,

of such licences. The registers may be searched by any ^^^ names
, o ^ J • i,ij c ^■ of owners,

ratepayer, or owner or licensed premises, or nolder oi a licence

in the district on payment of one shilling.

The police or excise officer may search without fee ; and
copies may be taken without interruption. Act 1872,
sec. 36.

The register of licences kept by the clerk to the licensing Register
justices will be evidence of the matters required by the Act evidence,
to be entered therein. The copy of an entry in the register,
certified by the clerk, and an endorsement on the licence
will be admitted without proof of the clerk's signature.
Act 1872, sec. 58.

The Appeal.

The appeal clauses, sees. 27, 28 & 29, of the Act 1828 are Appeal
repealed (sch. 2, Act 1872), "excepting so far as they relate clauses
to the renewal or the transfer of licences." (See antCy p. 60, ^c+Toofi
Act 1824, sec. 14 ; Act 1872, sec. 50.)

The 27th section enacts: — "That any person who shall
think himself aggrieved by any act of any justice done in or
concerning the execution of this Act may appeal against
such Act to the next General or Quarter Sessions of the
Peace holden for the county [or place^ (a) wherein the cause
of such complaint shall have arisen, unless such session
shall be holden within twelve days next after such act shall
have been done, and in that case, to the next subsequent
session holden as aforesaid, and not afterwards ; provided
that such person shall give to such justice notice in writing
of his intention to appeal, and of the cause and matter

(a) Now county only, see 5 & 2 Q. B. 96. And su^ra, p. 13 ;
6 Vict. c. 76, s. 105 : i2. v. Beane, infra, p. 68.

68 ALEHOUSE — THE LICENSING ACTS.

thereof, within Jive days next after such act shall have been
done, and seven days at the least before such session ; and
shall, within such Jive days, enter into a recognizance with
two sufficient sureties, before a justice acting in and for such
county [or place] as aforesaid, conditioned to appear at the
said sessions to try such appeal, and to abide the judgment
of the court thereupon, and to pay such costs as shall be by
the court awarded ; and the court at such session shall
hear and determine the matter of such appeal (a), and shall
make such order therein, with or without costs, as to the
court shall seem meet ; and in case the act appealed against
shall be the refusal to [grant or] (6) transfer any licence, and
the judgment under which such act was done shall be re-
An original versed, it shall be lawful for the said court to [grant or]
jurisdiction lyansjer such licence in the same vianner as ij such licence had
on the ^^^'^ granted at the general amiual licensing meeting, or had

Quarter been transferred at a special sessions; and the judgment of
Sessions, the court shall be final and conclusive to all intents and
purposes ; and in case of the dismissal of such appeal, or of
the affirmation of the judgment on which such act was done,
and which was appealed against, the said court shall ad-
judge and order the said judgment to be carried into execu-
tion, and costs awarded to be paid, and shall if necessary
issue process for enforcing such order."
Thejustices The section provides that no justice shall act, as such, on
acting in ^^^ hearing of the appeal whose act is appealed against ; and
late court ^^^^ the cause of complaint has reference to the refusal to
renew or transfer a licence, whether as within the jurisdiction
of a city or the county, the appeal will be to the county
sessions. R. v. Leane, 2 Q. B. 96 ; ^. v. Cockburn, Bristol
Recorder, 24 L. J. M. C. 43 ; 4 E. & B. 265 ; o & 6 Will. 4,
c. 76, s. 105. See a7ite, p. 13.
The party It was held in R. v. Middlesex, 3 B. & Ad. 938, that the
aggriered. <' party aggrieved" contemplated by 9 Geo. 4, c. 61, s. I,
must be a person inunediately and not consequentially
aggrieved. The owner of a neighbouring licensed house, for
instance, had no legal grievance on which to appeal against a
licence to another house near to his.

But in practice those holding adjoining licences and the
inhabitants in the locality are allowed to appear, as aggrieved
parties, to oppose the grant of a new licence ; and now also the
removal of a licence from one district to another. And they

(a) See R. r. Xent JJ., 41 (h) Ag to granting the licence,

J. P. 263. this enactment is repealed.

THE APPEAL. 69

will certainly have their locus standi^ if having been before the
licensing sessions to oppose the granting the licence or
removal of the licence, they appear before the confirmation
committee imder sec. 43, Act 1872.

Kules of Sessions, as well as those governing the procedure Rules of
before the confirmation committee, must not be inconsistent Sessions
with the Act, and impose an additional condition on the J° ^.^'
appeal ; the appellant has a right to be heard when he has committee,
complied with the conditions in the Act of Parliament. R. v.
Yorkshire W. ^., 2 Q. B. 705 ; M. v. Pawlett, L. R. 8 Q. B.
491 ; 29 L. T. 390.

The justices are the proper respondents under sec. 27, Notice of
Act 1828, in an appeal against the refusal to transfer or appeal to
renew a licence, and the service of the notice on them must justices
be a personal service, or by leaving it at their respective spondents.
place of abode. R. v. Cheshire, 11 A. & E. 131 ; i?. v. Bed-
fordshire, ib. 134, overruling K. v. Staffordshire, 4 A. & E,
842 : see also Ex parte Curtis, S. C. eo nom. Curtis v. £uss,
47 L. J. M. C. 35 ; 3 Q. B. D. 13 ; 37 L. T. 533 ; 26 W. R,
210, decided under the description of the justices as "the
Court of Summary Jurisdiction ; " where it was held the
personal service was still necessary (see post, p. 72). The
notice must be given to all the justices signing or forming
the court and adjudicating. JEx parte Blues, 5 E. & B. 299 ;
24 L. J. M. C. 1 38. In fact, the requirement of the statute
must be strictly complied with. R. v. Oxfordshire, 1 M. <fe S.
446. The modern regulation now being introduced into the
appellate clauses of making the service on the clerk to the
justices a service on the justices does not apply to an appeal
in reference to the licence.

The sessions have no power to adjourn an appeal afifecting a No power
licence, but must, " at such sessions " at which the appeal has to adjourn
been made, hear and determine it : the question at issue calls *^® appeal,
for speedy decision. R. v. Belton, 1 Q. B. 379 ; see alao
Bowman v. Blyth, 26 L. J. M. C. 57.

Sec. 28, Act 1828, provides for the summoning of wit- Summon-
nesses. And sec. 29 provides for the payment of the costs ^^8 '^^'
to the justices should the appeal be dismissed or abandoned, ^^^^^ *^
and which costs the court is " required to adjudge and order."
Such order is, therefore, imperative ; see R. v. Yorkshire W. R,,
31 L. J. M. C. 271 ; and payable by the party appealing,
or who has given notice of his intention to appeal. And on
non-payment the party may be committed to the common
gaol until the sum awarded be paid. And in case the
judgment appealed against be reversed, the court may order

70 ALEHOUSE— THE LICENSING ACTS.

the treasurer of the county or place in which the respondent

justice shall have acted, to pay the cost and charges to

which the justice may have been put.

Summary The Acts of 1872 and 1874 provide various punishments

proceed- by summary proceedings for the punishment of offences

^^^' under those Acts, whether committed by the licensed holder

or other persons. The commission of some offences, or the

repetition of them, by the licensee may result in their being

recorded on his licence, and producing a forfeiture of the

licence, or a disqualification to hold a licence ; or may be a

disqualification of the premises to be licensed.

These various offences will presently be specifically
enumerated.

Excepting where otherwise expressly provided every
offence under the Acts may be prosecuted, and the penal-
ties and forfeitures recovered and enforced, as provided by the
Summary Jurisdiction Act, 1848, 11 & 12 Vict. c. 43.
Act 1872, sec. 51.
TLo Court The Court of Summary Jurisdiction, when hearing an infor-
of Sum- mation or complaint, other than the case where the offence
dictfon""^' charged is that of being found drunk in any highway or
other public place, or any licensed premises, must be con-
stituted of two or more justices in petty sessions, or a
stipendiary magistrate, or some other officer authorised to
act alone, and sitting alone, or with others in sessions. Act
1872, sec. 51, (1).
Description The offence may be described in the words of the Act, or
of the jjj similar words, ib. sub.-s. (3).

Any exception, exemption, proviso, excuse or qualification,
Burden of ^}^ether it does or does not accompany the description of the
offence, may be proved by the defendant, but need not be
specified nor negatived in the information ; and if so specified
or negatived, no proof in relation to the matter so specified
or negatived will be required on the part of the informant or
complainant. The defendant and wife are competent
witnesses, ib. sub.-s. (4).

As to the introduction of the words " excuse or qualifica-
tion"; see remarks of Blackburn, J., in Roberts v. Hum-
phreys, L. R. 8 Q. B. 483 ; 42 L. J. M. C. 147 ; Copley v.
Burton, 39 L. J. M. C. 141 ; L. R. 5 C. P. 489.
Scale of The Act 1872, sec. 51 (2), gives a scale of penalties on

punish- terms of imprisonments, with power to order a distress (a) in
ments

(a) The order for distress is a Bron-n, 3 Q. B. D. 545 ; 47 L. J.
condition precedent to the order M. C. 108 ; 38 L. T. 682 ; 26
for imprisonment : Ex parte W. R. 757.

THE APPEAL. 71

default of payment where the penalty including costs actually under Act
adjudged exceeds £5 : and the person convicted may be im- l?'/ov^^^'
prisoned for any term not exceeding the following scale :
that is to say, excepting where otherwise expressly provided
by the Act : —

For any sum exceeding £5 but not exceeding £10,

three months.
For any sum exceeding £10 but not exceeding £30,

four months.
For any sum exceeding £30 but not exceeding £50,

six months.
For any sum exceeding £50, one year.

It must, however, be noticed that the Summary Jurisdiction Scale
Act 1879, has prescribed the period of imprisonment in under the
respect of default of a sufficient distress to satisfy any sum Summary
adjudged to be paid on conviction "under that Act, or under ^^^^^ ^^^
any other Act whether past or future, notwithstandiug any 1879, s.'^.
enactment to the contrary in any past Act." So far, then, as
the above sec. (51) is inconsistent with the Summary Juris-
diction Act, 1872, sec. 5, sec. 51 (2), it must be taken as
repealed. The scale of imprisonment where there is no suffi-
cient distress, under the Act of 1879, is the following : —

Where the sum adjudged does not

Exceed 10s. . . . . . Seven days.

Exceeds lOs. and does not exceed £1 Fourteen days.

Exceeds £1 and does not exceed £5 One month.

Exceeds £5 and does not exceed £20 Two months.

Exceeds £20 ..... Three months.

And such imprisonment shall be with or without hard
labour.

The infliction of the imprisonment with hard labovr under
the Act of 1879 may be considered an equivalent in lieu of
the extra term of imprisonment provided for under the
former Act of 1872, sec. 51 (2).

The Summary Jurisdiction Act, 1879, sec. 5, will not
affect the magistrate's jurisdiction to inflict imprisonment
instead of a fine as specially provided for in the Acts 1872,
1874 ; sec. 51, Act 1872, and the Summary Jurisdiction
Act, 1879, refer to imprisonments in case of there being
found no sufficient distress to satisfy the judgment.

The 52nd section. Act 1872, gives to any person feeling Appeal

72

JLLEHOUSE — THE UCENSING ACTS.

against
convic-
tions.

Limit of
time.

Notice.

Eecogni-
7.ance.

Discharge.

Adjonm-
mcnt.

Costs.

Notice of
appeal to
justices
(Court of
Summary
Jurisdic-
tion).

Summary

himself aggrieved by any order or conviction made by a
court of summary jurisdiction under the Licensing Acts an
appeal to the Quarter Sessions, subject to the following con-
ditions and regulations : —

(1.) The appeal shall be made to the next (a) Court of
Quarter Sessions for the county or place in which the cause
of appeal has arisen, holden not less than fifteen days after
the decision of the court from which the appeal is made :

(2.) The appellant shall, seven days after the cause of
appeal has arisen, give notice to the other party and to the
court of summary jurisdiction of his intention to appeal and
of the ground thereof.

(3.) The appellant, immediately after such notice, shall
enter into a recognizance with two sureties to try such
appeal and abide the judgment and pay costs.

(4.) Upon his recognizance he may be discharged if in
custody.

(5.) The court may adjourn (6) the appeal, and upon the
hearing may confirm, reverse, or modify the decision of the
court of summary jurisdiction, or remit the matter to the
court of summary jurisdiction with the opinion of the court
of appeal thereon, or make such other order in the matter as
the court thinks just. The court may also make such order
as to costs to be paid by either party as it may think just

On an appeal against a conviction by Cinque Port justices
of a person for being found drunk on licensed premises (sec
12, Act 1872), the appellant served his notice of appeal on the
clerk to the justices, addressed generally to the justices of
the Cinque Ports. Neither of the justices who heard the com-
plaint or made the order received any notice of appeal. The
Deputy Recorder (c), sitting at Sandwich, held the notice to
be bad on the authority of JR. v. Bedfordshire, 11 A. & E.
134; Ji. V. CJieshire, ib. 139, as not having been personally
served on the justices, as well as being too indefinitely ad-
dressed, and declined to hear the case on the merits. The
Q. B. D. held that the service of the notice was not suffi-
cient ; and that the Deputy Recorder was not bound to hear
the case if satisfied he had no jurisdiction. Curtis v, Buss,
3 Q. B. D. 13 ; 47 L. J. M. C. 35 ; 37 L. T. 533 ; «w6 nmn.
Ex parte Curtis, 26 W. R. 210.

Reference should now be made, however, to the Summai

(a) "Next practicable conrt,"
Sum. Juris. Act, 1879, sec. 32.
(J) This will not affect aec.

27, Act 1828, as in R. v. Bolto*
ante.

(c) The Author.

OFFENCES. 73

Jurisdiction Act, 1879, sees. 31, 32, as to an appeal against Jmisflic-

• . - tion Act,

a conviction. ^g-y '

Although sec. 31 is applicable only in its procedure to
appeals under that Act (1879) and future Acts, sec. 32 gives
to the party appealing against a conviction the optional right
to appeal as under sec. 31 ; but his former rights are pre-
served. In re Clew, 8 Q. B. D. 5 1 1 ; ^. v. Montgomeryshire,
50 L. J. M. C.

The appellant in electing to proceed under the Act 1879,
may avoid the objection raised in Curtis v. Buss, as sec. 31
specially provides that the service of the notice of appeal
upon the clerk to the justices will be good service on the
i"espondent justices.

For the form of procedure under that Act reference is
made to the Act and sections under tit. *' The Summary
Jurisdiction Acts." The distinctions between the sections
in the two Acts require to be noticed and carefully followed
in accordance with the Act the appellant may elect to
proceed under.

Offences,

The following are the offences under the Acts 1872, 1874,
and the moximum penalties ou conviction : —

Offences in reference to tlie Sale of IntoxiccUing Liquors.

1. For the sale of liquors without a licence or in an
authorised place :

First offence £50, or imprisonment with or w^ithout
hard labour one month.

Second offence £100, or imprisonment with or without
hard labour three months, with disqualification for
not exceeding five years from holding a licence.

Third offence, and any subsequent offence, £100, or
imprisonment with or without hard labour for six
months ; and may, by order of the court by which he
is tried, be disqualified for any term of years, or for
ever, from holding a licence.

On conviction on a second or subsequent offence all
intoxicating liquors on the premises may be forfeited. Act
1872, sec. 3; see 35 Geo. 3, c. 113, s. 1, a Police Act
(still unrepealed) ; see R. v. Hanson^ 4 B. & Aid. 319;

ALEHOUSE — THE LICENSING ACTS.

6 M. <fc S. 116; Lely and Foulkes, Licensing Acts, 83. If
less than the minimum penalty appears on the conviction to
have been imposed, the conviction is bad. Whitehead v. ^.,

7 Q. B. 582 ; i?. v. Fletcher, R. & R. 58. For excise penal-
ties see, as to beer, 1 Will. 4, c. 64, s. 7 ; 4 & 5 Will. 4,
c. 85, s. 17 j loine, 23 Vict. c. 27, s. 19 ; all liquors, 6 Geo. 4,
c. 81, s. 26.

2. Allowing a purchaser to consume drink on the licensed
I)remises, or adjoining highway in evasion of his licence to
sell liquor *'not to be drunk on the premises :"

First offence £10. Second offence £20.

This offence may be recorded on the licence, if the court
thinks fit: see sec. 13, Act 1874.

Act 1872, sec. 5.
Under this sec. it has been held that a bench outside the
door of the house was part of the premises : Cross v. Watts,
32 L. J. M. C. 73 ; 13 C. B. N. S. 239 ; 11 W. R. 210. If
the drinking takes place in the highway close to the licensed
premises, and knowingly so to the knowledge of the licensee,
iu evasion of the licence (and this is a fact of which the
justices will be the judges), the offence will be complete,
'in Deal v. Scholfield, 37 L. J. M. C. 15 ; L. R. 3 Q. B. 8, a
constable was supplied with beer at an open window, about
three yards from the highway, where he drank the beer, the
window remaining open, and the servant at it. It was held
a conviction on such evidence was wrong.

3. A like evasion, by carrying the liquor elsewhere than
on the licensed premises for consumption.

The same penalties as under No. 2.

Act 1872, sec. 6. Recordable on the licence.

4. Selling spirits to children to be drunk on the premises :
First offence £1. Second offence £2.

Act 1872, sec. 7.

5. Not using the standard measure.

First offence £10. Subsequent offence £20. Forfeiture

of measures used.
Act 1872, sec. 8. (See also the Weights and Measures
Act, 1878; 41 & 42 Vict. c. 49.)
G. Making a communication with an unlicensed house of
public resort, £10 a day.

Forfeiture of the licence, which may, under Act 1874,
sec. 15, be transferred to the owner. Act 1872,
sec. 9. See also the Metropolitan Police Act, 1839,
2 ife 3 Vict. c. 47, s. 45.
7. Storing unauthorised liquors.

OFFENCES. 75

First offence £10. Subsequent £20. Forfeiture of

liquor.
Act 1872, sec. 10.
See Gill V. liright, 41 L. J. M. C. 22 ; 25 L. T. 591.

8. Neglecting to put up description-board.
The same penalties.

Act 1872, sec. 11. (Form of board, Act 1874, sec. 28.)

9. Permitting drunkenness (a), or violent, quarrelsome or
riotous conduct on licensed premises; or sells intoxicating
liquor to any drunken person :—

First offence £10.

Second and subsequent offence £20. Conviction may
be recorded. (See Act 1874, sec. 13.)

Act 1872, sec. 13.
The word " knowingly," which was in the repealed Act,
1828, is omitted here. See Archibald, J., in Midlins v.
Collins, 43 L. J. M. C. 67 ; L. R. 9 Q. B. 292 ; 29 L. T. 838 ;
22 W. R. 297, as to the knowledge of the servant ; see also
Redoate v. Haynes, 1 Q. B. D. 89 ; 45 L. J. M. C. 65 ; 33 L.
T. 779 ; Bosley v. Davies, 1 Q. B. D. 84 ; 45 L. J. M. C. 27 ;
33 L. T. 528.

A licensed person may be convicted for permitting drunken-
ness on his premises upon evidence that the person was
found drunk at some distance from them. Ethehtane v.
Oswestry JJ., 32 L. T. 339, Q. B. D.

A licensed person cannot be convicted of "permitting
drunkenness " by being himself drunk on his own premises.
Warden v. Tye, 2 C. P. D. 74; 46 L. J. M. C. Ill ; 35 L.
T. Sbi ; Lester v. Torrens, 2 Q. B. D. 403 ; 46 L. J. M. C.
280; 25 W. R. 691.

10. Knowingly permitting his licensed premises to be the
habitual resort of reputed prostitutes, whether the object be
or be not prostitution, and allowing them to remain longer
than necessary to obtain reasonable refreshment.

First ofl'ence £10.

Any subsequent offence £20.

Recordable on the licence.

Act 1872, sec. 14.
See the County Police Act, 2 & 3 Vict. c. 93, s. 16 ; the
Town Police Clauses Act, 10 & 11 Vict. c. 89, s. 35 ; Cole
V. Coulton, 2 E. & E. 695 : 29 L. J. M. C. 125. The Prevention

{a) Under sec. 18, Act 1872, into his house. He may also have
the licensee may refuse to supply the assistance of a constable to
a drunken person or admit him remove him.

s 2

76' ALEHOUSE — THE LICENSING ACTS.

of Crimes Act, 1871, 34 & 35 Yict. c. 112, s. 10, as to
harbouring thieves.

Decisions before the Act held it to be no offence if prosti-
tutes stayed no longer than to take refreshments : Greig v.
Burdeno, E. B. & E. 133; 27 L. J. M. C. 294; Purkis v.
Huxtahle, 1 E. & E. 780 ; 28 L. J. M. C. 221. And that
they were there for the purpose of prostitution: Belasco v.
Hannant, 3 B. & S. 13; 31 L. J. M. C. 225; these cases
will not apply to the present section. See as to the burden
of proof that the reputed prostitutes were assembling for the
obtaining reasonable refreshment being on the defendants,
see sec. 51, sub-sec. 4, Act 1872.

11. Being convicted of permitting licensed premises to be a
brothel.

Each offence £20.

Forfeiture of license, and disqualification for ever.

Act 1872, sec. 15.

It is not necessary to prove indecent or disorderly conduct
perceptible from the exterior. R. v. Rice, L. R. 1 C. C. R. 2 1 ;
35 L. J. M. C. 13.

The practice is to indict the offender for keeping the
brothel; the distinction between the "keeping " a brothel, and
" permitting " the premises to be a brothel, is too narrow to
deprive the party of his right to be " convicted " by the trial
by a jury. The keeping a brothel was always a common
law offence triable at the Assizes or Quarter Sessions. The
right of trial by jury cannot be taken away by implication.
Looker v. Halcombe, 4 Bing. 183, Best, C. J. See Lely and
Foulkes, Licensing Acts, 92, 2nd ed.

12. Knowingly harbouring or suffering any constable to
remain on licensed premises whilst on duty, unless to restore
order.

Supplying (without authority) liquor or refreshment to a
constable on duty.

Bribing or attempting to bribe a constable.
First offence £10.

Second and subsequent offence £20.
Recordable on the license (Act 1874, sec. 13).
Act 1872, sec. 16. See sec. 51 (4).
The licensee may be coivicted on the act of his servant
supplying a constable with liquor. Mullins v. Collins, L. R.
9 Q. B. 292 ; 43 L. J. M. C. 67 ; 29 L. T. 838 ; 22 W. R.
297. In that case the licensee had no knowledge of the act
of the servant ; the knowledge was inferred from the cir-
cumstances under which the servant was left in charge.

OFFENCES. 77

In Bosleif V. Davles, 45 L. J. M. C. 27 ; 12 B. D. 84; 33 L.
T. 528 ; 24 W. R. 140, in respect to a charge of permitting
gaming on the premises, it was held that either knowledge
or constructive knowledge should be shown ; a connivance at
gaming was held sufficient. Redgatt v. Haynes, 1 Q. B. D. 89 ;
45 L. J. M, C. 65 ; 33 L. T. 779. See also, The Town
Police Clauses Act, 10 & 11 Vict. c. 98, sec. 34; and the
County Police x4.ct, 2 & 3 Vict. ch. 93, sec. 16.

13 Suffering any gaming or unlawful game to be carried
on in the premises : opening, keeping, or using or suffering
his house to be opened, kept or used in contravention of the
Act for the suppression of Betting Houses, 16 & 17 Vict,
c. 119.

First offence <£10.

Second and subsequent offence <£20.

Act 1872, sec. 17. Recordable (see Act 1874, sec. 13).

See sec. 30, Act 1874.

A game called " puff and dart," in which each person con-
tributes a certain sum tow^ards the purchase of a prize to be
given to the winner, is within sec. 17. Bew v. Harston, 3 Q.
B. D. 451 ; 39 L. T. 233 ; 26 W. R. 915.

Plaving for money's worth or money. See R. v. Ashton,
1 E. & B. 286 ; S. C, 22 L. J. M. C. 1 ; Patte?i v. Rhymer^
29 L. J. M. C. 189 ; 3 R. & E. 1 ; Danford v. Taylor, 20
L. T. 483 ; Foot v. Baker, 6 Scott, N. R. 301.

What are unlawful games, see 33 Hen. 8, c. 9, s. 11;
12 Geo. 2, c. 28, s. 2 ; 13 Geo. 2, c. 19; 18 Geo. 2, c. 24;
42 Geo. 3, c. 19 ; 8 & 9 Vict. c. 109. A game of skill is not
unlawful: 8 & 9 Vict. 109, s. 1; such as chess, draughts,
dominoes. R. v. Ashton {supra). Cards or dice are not in
themselves unlawful. Allport v. Nutt, 14 L. J. C. P, 272 ;
1 C. B. 989.

There should be evidence of either active or constructive
knowledge of the offence on the part of the person charged :
see Mullins v. Collins, and Bosley v. Davies (siipra). " Con-
nivance" is sufficient : Redgale v. Hayties, 1 Q. B. D. 89; 45
L. J. M. C. 65 ; Avards v. Dance, 26 J. P. 437.

It was held in Fatten v. Rhymer (supra) that private
friends of the proprietor were prohibited from card-playing
on the licensed premises : see also Hare v. Osborne, 34 L. T.
294, where it was held that there was nothing in sec. 30,
Act 1874, exempting from liability the supplying liquors to
private friends to render the conviction unlawful. But see
Cooper V. Osborne, 35 L. T. 347, where a private friend was
on licensed premises, after the closing time, and playing at

78 ALEHOUSE— THE LICENSING ACTS.

cards for money, and the court quashed a conviction, the
case not being in contravention of the Licensing Acts. And
see, on the repealed section 24, Act 1872, Overtoil v. Hunter j
1 L. T. N. S. 366.

Brandt on Games, p. 108.
15. Harbouring thieves on licensed premises.
> For each oiFence <£10, or four months' imprisonment.
Sureties of the peace in X20.
First offence, forfeiture of licence by order of the

court.
Second offence, absolute forfeiture, and two years' per-
sonal disqualification, and the premises mav be dis-
qualified: 34 & 35 Vict. c. 112. The Prevention
of Crimes Act, 1871, sec. 10} 10 & 11 Vict. c. 89,
Bee. 5.
Under the Habitual Criminals Act, 1869, sec. 10, a beer-
house keeper was held to have committed an offence where
he permitted an assemblage of reputed thieves at his house,
although the meeting was merely for the purpose of raising
a subscription in aid of the family of a person in custody,
and for procuring the means of his defence. Such an as-
semblage might afford the opportunity or inducement to
devise crimes, and would be within the Act. Marshall v.
Fox, L. R. 6 Q. B. 370 ; 40 L. J. M. C. 142.

.16. Keeping the licensed house open when ordered to be
closed in case of riot.

Each offence £50. Act 1872, sec. 23.

17. Not exhibiting notice of the order for the exemption
from closing.

Each offence £b. Act 1872, sec. 26.
Or exhibiting the notice without authority. Each
offence £10. Same section.

18. The holder defacing, obliterating, or attempting to
deface or obliterate any record of a conviction on his
licence.

Each offence £5. Act 1872, sec. 34.

19. Refusing to produce the licence or order of exemp-
tion from closing, on demand by a justice, constable, or
officer of inland revenue.

Each offence £10. Act 1872, sec. 64.

20. Keeping a refreshment- house (a) open for the sale of
foreign wine after ten, or the time for closing.

(a) When the refreshment- £10 ; subsequent offence, £20 :
house is not licensed, 1st offence, Act 1872, s. 27.

OFFENCES.

Fii-st oflfeiice £10.

Any subsequent offence £20. Act. 1872, sec. 28.

See Dujjield v. Cnrtu, 35 L. T. 853. A refreshment-
house keeper, although without a wine licence, may not sell
articles for consumption off the premises on Sundays.

A mere dancing-saloon is not a refreshment-house requir-
ing a licence. Taylor v. Orane, 31 L. J. M, C. 252,

See also sec 29 and Act 1874, sees. 18, 19, and 20, as to
occasional licences.

See note to the next offence.

21. Any person who sells or exposes for sale on licensed
premises, any intoxicating liquor during the time the pre-
mises should be closed in pursuance of the Act, or keeps
open such premises for the sale of such liquors, or allows
any such liquors, although pui'chased before the hours of
closing, to be consumed on such premises.
First offence £\0.
Any subsequent offence £20.

The conviction may be recorded. Act 1874, sec. 13.
Act 1874, sec. 9.

Sec. 28, Act 1872 (sup.), is a similar provision in respect
to refreshment-houses. See Bujleld v. Curtis {sup.)j as to
Sunday restrictions.

These provisions are subject to the exception in the 10th
section (Act 1874), that nothing shall preclude the selling
intoxicating liquor to be consumed on the premises at any
time to ho7id Jide travellers, or to persons lodging in the
house. But no person having only a six days' licence shall
sell to any one such liquor on a Sunday unless he lodge in
the house.

The sections will not apply to railway travellers arriving
at or departing from a station by railroad. See post, p. 84.

It will be a good defence on a charge for selling liquors
during the prohibited hours, should the defendant fail to
prove that the purchaser was in fact a bond Jide traveller, if
the justices are satisfied that the defendant truly believed
the purchaser was a bond Jide traveller ; and further that he
took all reasonable precautions to ascertain whether or not
the purchaser was such traveller (a).

A person will not be deemed to be a bond Jide traveller

^a) Should the traveller have and the jiistices may direct pro-
given a false description of him- ceedings to be taken against him :
self, he may be proceeded against sec. 10, Act 1874.
under the 25th sec, Act 1872 ;

ALEHOUSE — THE LICENSING ACTS. •

unless the place where he lodged during the preceding night
was at least three miles distcint from the place where the
liquor was supplied, calculating by the nearest public
thoroughfare. Sec. 10, Act 1874. See post^ p. 82.

Closing hours. All premises in which intoxicating liquors
are sold by retail shall be closed as follows. Act 1874,
sec. 3.

In the metropolitan district : —

On Saturday night — from midnight until one o'clock ia

the afternoon of the following Sunday.
On Sunday night — from eleven o'clock until five o'clock

on the following morning.
On other days — from half an hour after midnight until
five o'clock on the same morning.
If situate beyond the metropolitan district, and in the
metropolitan j^olice district (a), or in a town, or in a populous
place (6) : —

On Saturday night — from eleven o'clock until half an

hour after noon on the following Sunday (c).
On Sunday night — from ten o'clock until six o'clock on

the following morning.
On the nights of other days — from eleven o'clock to six
o'clock on the following morning.
If situate elsewhere : —

On Saturday night — from eleven o'clock until half an

hour after noon on the following Sunday.
On Sunday night— from ten o'clock until six o'clock on

the following morning.
On the nights of all other days — from ten o'clock
until six o'clock on the following morning.
Such premises, wherever situate, shall (save where otherwise
mentioned) be closed on Sunday afternoon from three, or
half-past two, according as the hour of opening shall be one
o'clock p.m., or half an hour after noon until six o'clock.

Christmas Day and Good Friday to be treated as Sundays.
Act 1874, sec. 3.

An order of justices tending to restrict the times for

{a) The metropolitan district by sec. 32, Act 1874, and means

is — the City and liberties of a place having' not less than 1000

London, any parish or place population ; and the declaration

within the jurisdiction of the of a place '' as populous " is in

Metropolitan Board of Works, or the discretion of the justices in

within the area of a radius of licensing committee,
four miles of Charing Cross : sec. (c) The justices may vary the

32, Act 1874. closing hours for Sundays, sec. 6.

(6) A populous place as defined

OFFENCES. 8l

closing the licensed house in contravention of the statute
would be ultra vires. Mcicheth v. Ashley^ L. R. 2 H. Sch.
App. 352 ; 30 L. T. 310.

Licences are granted to close the licensed houses one hour Early
earlier at night when the duty will be six-sevenths of the duty dosing
the licensee otherwise would pay. Sec. 7, Act 1874. licences.

And under sec. 8, he may obtain a six days' licence as
well as an early closing licence, at a remission of two-
sevenths of the duty.

By sec. 9 an infringement of these hours by selling intoxi-
cating liquors when prohibited, will render the licensee liable
to a penalty not exceeding £10; and for any subsequent
offence, not exceeding £20.

The "^me" to be observed has now been specifically do- "Time."
fined, and is to be understood throughout Great Britain as
the " Greenwich mean time " (in Ireland the Dublin mean
time). The Statutes Definition of Time Act, 1880, now
overrides the remarks of Pollock, C. B., on the observance
of time in different places ; see Curtis v. Marsh, 28 L. J.
Ex. 36.

The words in the section " sells or exposes for sale," and Sells or
** opens or keeps open the premises for sale," have given rise exposes for
to much discussion. The decision in Cafes v. South, 1 ' ^^
L. T. 365, held that a reasonable time might be allowed a keeps open
purchaser to consume the liquor bought before the closing the pre-
hour ; but under the above section (9), the licensee must raises for
clear his house at the exact time of closing. ^•'^^^•

To bring a case within the 9 th clause there must be a
sale of liquor in fact : Overton v. Hunter, 1 L. T. 366 ;
Fetherick v. Serjeant, 5 L. T. 48. And direct evidence
must be given of a sale of liquor after the closing hour ; a
distinct opening after that hour ; or some act on the part of
the landlord, or his servant, which would show that the
house was wilfully kept open for the purpose of inviting
persons in. See Cockburn's, L.C. J., remarks in Cates v. South,
1 L. T. 365 ; see also Brig den v. HeigJies, 1 Q. B. D.
330; 46 L. J. M. C. 228; 36 L. T. N. S. 696; Tassell y.
Ovenden, 2 Q. B. D. 383; 46 L. J. M. C. 228. As to market
days, see Act 1874, s. 26. As to occasional licences, see Act
1874, sees. 18, 19, 20.

A draper and grocer held a licence for the sale of wine and " Grocer's
spirits not to be consumed on the premises. The grocery ii<^eiu'c. "
and drapery business was carried on in one shop and the ^^^'"S of
wme and spirit business in an adjoining shop. During the
day customers w^ould pass from one shop to the other ; but

£ 3

82 ALEHOUSE— THE LICENSING ACTS.

after ten o'clock, all communication was closed by means
of a partition, and the shutters were put up. There
only remained the private communication with the house.
The grocery and wine department was in darkness, but the
drapery portion was kept open. It was held there was
no evidence on which to support a conviction for keeping the
house open for the sale of liquor after ten o'clock. Brigden
V. Eeighes, 1 Q. B. D. 330 ; 45 L. J. M. C. 58 ; 34 L. T.
242 ; 24 W. R. 272.

To obtain a conviction there should be some evidence that
the liquor was in fact sold, or that it was exposed for sale. See
Tasell V. Ovenden, 2 Q. B. D. 383 ; 46 L. J. M. C. 228 ; 36
L. T. 696 ; 25 W. R. 692 ; Overton v. Hunter, 1 L. T. 366 ;
Petherick v. Serjeant, 5 L. T. 48 ; Cates v. South, 1 L. T. 365.
Entertain- Sec. 30, Act 1874, enacts that no person keeping a
mg private licensed house will be liable to any penalty for supplying
intoxicating liquors, after the hours of closing, to private
friends bond fide entertained by him at his own expense.

A dinner-party had been given by one P. to nine friends
at a licensed house, and after the time for closing, the land-
lord invited the guests as his private friends to partake of
claret at his expense. The nine persons were proceeded
against under sec. 25, Act 1872, as being found on licensed
premises (a), not being inmates, servants, lodgers, bond fide
travellers, or " that otherwise their presence on the premises
was not in contravention of the provisions of the Act with
respect to the closing of licensed premises." The parties
were convicted, and the conviction was upheld, on the
ground that at the hour of closing the landlord could not
convert his customers' guests into " private friends." Corbett
V. Haigh, 28 W. R. 430, 5 C. P. D. 50, wrongly citing Cooper
v. Osborn, 35 L. T. 347, D. C. A., as Cooper v. Askeiv.

In Cooper v. Osborn (sup.) there had been an annual
local feast held in the town on a Sunday. The inn had
been frequented by more people than usual on that day.
At 10 minutes to 11 p.m., the appellant caused all to leave
his house, with the exception of a party consisting of the
appellant and his wife, his brother-in-law, a young lady (a
visitor), and four or five others, neither travellers nor
inmates. These sat down to supper, and had spirits and
wine at the proprietor's expense. The house was closed

(a) Under sec. 25, Act 1872, a privileges is subject to a £2
person found on licenced premises penalty; see also Act 1874, sec.
when not under the statutable 17.

OFFENCES. 83

and there was no proof that any wine or spirits w^ere sold
after the prohibited hours. Cockburn, C. J. (Hill and
Blackburn, JJ., agreeing), said : " Here is a publican who
is found on a Sunday evening entertaining at supper a
few friends who had been attending a feast in the neighbour-
hood. The justices have found, as a fact in the case, that
there was no sale of spirits. The case, then, is really at an
end ; and I must say that it is a case in which there was not
the slightest shadow of a pretence for such a conviction.
The inn-keeper was giving a private entertainment to his
own guests, which he had a perfect right to do."

These two cases are certainly in conflict, as the justices in
Corhett V. Haigh found as a fact that the conduct of the
landlord was bond fide, so that no question as to the evasion of
the Act was raised. The only distinction apparent in the
cases is, that in the one there had been a private dinner-party,
and there was a mere change of entertainment, on the time
for closing arriving, from the party being colourably trans-
ferred as the guests of the customer to their becoming the
guests of the landlord and which was considered a con-
tinuance of the customers' entertainment in another form ;
but in the other case, a selection had been made from the
general company, by the proprietor, of personal friends and
relations independently of any previous entertainment.
Each case as it may arise must depend on its own peculiar
circumstances, and on which the justices will exercise their
discretion. These two authorities will be their guide in
coming to a conclusion on this particular question. See also
Willes, J., remarks in Copley v. Burton, 39 L. J. M. C. 141.

Prior to the Act 1872, the burden of proof that the Bond ide
customer was not a bond fide traveller rested with the travellers,
informer. Jervis's Act, 11 & 12 Vict. c. 43, sec. 14, was
held, not to throw the burden of proof on the person taking
advantage of it. Davis y. Scarce^ L. R. 4 C. P. 172 ; 38 L. J.
M. C. 79.

Sec. 51, sub-sec. 4, Act 1872, throws the burden of proof on
the defendant that the person served with the liquor w^as a bond
fide traveller : see Roberts v. Humphreys, L. R. 8 Q. B. 483 ; 42
L. J. M. C. 147 ; 29 L. T. 387 ; 21 W. R. 885. Sub-sec. 4,
sec. 51, was passed to meet the prior decisions, and to shift the
burden of proof. Sec. 10, Act 1874, further confirms the
onus of proof resting with the defendant ; but protects him
against any deceit or misrepresentation of the purchaser that
he is a bond fide traveller, and makes it a good defence if he
took reasonable precautions to ascertain that the purchaser

ALEHOUSE — THE LICENSING ACTS.

was a bond fide traveller ; or that the justices are satisfied he
truly believed he was such traveller. It is a question for the
justices to decide on all the circumstances whether the
customer supplied with the liquor was a traveller. Atkinson
V. Sellers, 5 C. B. N. S. 442 ; 28 L. J. M. C. 12. In that
case, and in Taylor v. Uumphreys, 17 C. B. N. S. 549;
34 L. J. M. C. 1 ; 11 L. T. 376, the court approved the
principle, as now enacted in Act 1874, sec. 10, that if the
publican believed or had reason to believe, when he supplied
the liquor, he was supplying it to a traveller, whether he be
on a journey of business or pleasure, he ought not to be con-
victed. The circumstances under which the customer was
admitted and supplied, would be matter for consideration
in deciding whether the publican had reason to believe, and
did believe, he was a traveller, either when he admitted him
or whilst he afterwards supplied him ; such as, whether he
was a neighbour or a stranger, whether he delayed longer or
took more than was consistent with the need of refreshment.
The distance would also be relevant ; but no rule could be
laid down for a defined distance, as that which would be
short for the vigorous might be long for the weakly. Per
Erie, C. J.

Sec. 10 limits the distance the customer should have
travelled to beyond three miles from the place where he slept
the previous night. Such distance, however, is to be measured
by the nearest public thoroughfare ; so that where there is a
public ferry across a navigable estuary — as the Southampton
Water — which could be used by any person paying a toll,
the distance between the house where the alleged traveller
lodged on the one side of the water, and the inn where he
was supplied with liquor on the other, will be calculated as
by the ferry, and not by the roadway, which would be a con-
siderable distance. Coulbert v. Troh, 1 Q. B. D. 1 ; 45 L. J.
M. C. 7.

On a charge against a licensee who kept a refreshment
room communicating with a railway station, he had a notice
up, cautioning those who were not travellers, and as to their
penalties on taking refreshments during prohibited houi^s,
and the customers were asked if they were travellers. Not-
withstanding these precautions, (a) four persons, residents,
but strangers to the licensee, were served with refreshments,

(a) A person falsely pretending
to be a traveller or lodger, or gives
a false name or address, may be
fined for each offence not exceed-

ing £5 : Act 1872, sec. 25 ; see
also Act 1874, sec. 10, under
which the magistrate may direct
a prosecution.

OFFENCES.

and then went away by train ; the sessions found they were
not '' bond fide travellers." On a case stated the conviction
was quashed ; and the court intimated that any similar
conviction would in future be quashed, ivith costs. Copley
V. Burtoy^ L. R. 5 C. P. 489 ; 39 L. J. M. C. 141 ; 22
L. T. 888.

As to the exemption of railway travellers, see the Public
House Closing Act, 1864, 27 & 28 Vict. c. 64, sec. 10;
Fisher v. Howard, 34 L. J. M. C. 42 ; Feache v. Colmarij
L. R. 1 C. P. 324 ; 35 L. J. M. C. 118.

22. Forging a magistrate's certificate.

Each offence, £'I0 ; or six months' imprisonment.
Disqualification for a wine and beer licence. Licence

transferable to owner.
Wine and Beer-House Act, 1869, s. 11.
Act 1874, s. 15.

23. Refusal to admit a constable.
First offence, £5,
Subsequent offence, <£10.
Recordable on the licence.
Act 1874, s. 16.

24. Adulteration. (See that tit. infra).
Sec. 24. The adulteration of liquors.
Recordable on the licence.

Act 1874, sees. 13, 14.
This offence is also indictable at Common Law : 4 Step.
Black., 5 ed. 349 ; 2 Chit. Cr. Law, 556 ; — and actionable :
Rolls Ab. 95 ; see Fitzpatrick v. Kelly, 42 L. J. M. C. 132 ;
Roberts v. Egerton, 30 L. T. 633 ; Pope v. Tearle, 43 L. J.
M. C. 129 ; L. R. 9 C. P. 499. As to Excise penalties, see
56 Geo. 3, c. 58, sec. 2 ; 10 Vict. c. 5 ; 25 Vict. c. 22, sec. 20 ;
Attor.-Gen. v. Lockwood, 9 M. k W. 378 ; Aff. in error, 10
M. k W. 464.

25. Allowing seditious meetings on licensed premises — £5.
Forfeiture by order of court.

39 Geo. 3, c. 79, sec. 14.
57 Geo. 3, c. 19, sec. 29.

Offences by Persons not Licensed,

1. Being drunk in a public place :
First offence, 10s.

Second offence, with twelve months, £A,

Third or subsequent offence, with same period, £2.

Act 1872, s. 12.

2. Being disorderly drunk in a public place, whether a

85

ALEHOUSE — THE LICEXSIXG ACTS.

building or not, or drunk while in charge of a car-
riage, horse, cattle, or steam-engine, in a highway or
public place ;

Or drunk when in possession of firearms ;

May be apprehended.

Penalty, £2 ; or imprisonment with or without hard
labour, one month.

On committal for non-payment of any penalty imder
this section, hard labour may be ordered.

Act 1872, s. 12.

3. A person who is drunken, violent, or disorderly on

licensed premises; or whose presence on the pre-
mises would render the licensee liable to a penalty («),
and not quitting on request of the licensee or his
agent or servant, or any constable — penalty, £5.
On non-payment, imprisonment with hard labour.
Act 1872, s. 18.

4. (1) Being found on premises where liquors are illegally

sold— £2.

(2) Refusing to give name and address under such cir-
cumstances— £5.

Act 1874, s. 17.

5. Refusing to quit licensed premises when requested.
For each offence, £5 ; on non-payment, imprisonment

with hard labour.
Act 1872, s. 18.

6. Being found on licensed premises during closing hours.
Each offence, £2.

Act 1872, s. 25.

(See cases, ante, under " Ofifence " No. 1. Sec. 28, 1872 ;
sec. 10, Act 1876.)

7. Falsely pretending to be a traveller or lodger.
Each offence, £5.

Act 1872, s. 25 ; as to directing a prosecution, see Act
1874, s. 10.

8. Giving a false name and address to a constable.
Each offence, £5.

Act 1872, s. 25.

9. Allowing liquor to be drunk in refreshment houses not

licensed for sale of liquor during the closing hours —
First offence, XIO ; subsequent offence, £20.
Act 1872, s. 27.
Sec. 13 of Act 1874 contains a general provision as to the

{a) See sections 14, 16, 17, Act 1872.

OFFENCES. 87

recording of convictions ; and it is there enacted, that where
any licensed person is convicted of any offence against the
principal Act (1872), which by such Act was to have been,
or might have been, endorsed upon the licence, or of any
oftence against "this Act" (1874), the court, before whom
any offender is brought, shall cause the register of licences,
in which the licence of the oJ0fender is entered, or a copy of
the entries therein relating to the licence of the offender,
certified in manner prescribed by the 58th sec. of the
principal Act (1872), to be produced in court before passing
sentence, and after inspecting the entries therein in relation
to the licence of the offender, or the copy thereof, the court
shall declare, as part of its sentence, whether it will or will not
cause the conviction for such offence to be recorded on the
licence of the offender, and if it decide that such record is to
be made, the same shall be made accordingly.

Such a recording of the offence is part of the conviction, The record-
and subject to appeal, and the direction that the conviction ing an
is to be recorded, for the purposes of the Act 1872, is^^^tofth
equivalent to a requirement that the conviction is to be conviction
recorded. and subject

The procedure on the recording of a conviction (sec. 55, to appeal.

Act 1872) is : — Procedure

iTi rGCord*

1. The court will require the accused to produce liis i^g convic-

licence. tion.

2. If the person is convicted (after an inspection of the

register of the licence), the conviction will be
endorsed on the licence.

3. The clerk to the justices will enter the particulars

of the conviction in the register of licences kept by
him.

4. If the clerk of the court be not the clerk to the

licensing justices, a notice of such conviction shall
be sent to him forthwith.

5. Where such conviction shall have the effect of

forfeiting the licence, or of disqualifying any person
or premises for the purposes of the Act, the licence
shall be retained by the clerk to the court, and
notice of such forfeiture or disqualification shall
be sent to the licensing officer of the district, and if
the clerk to the court is not the clerk to the
licensing justices, to such last-mentioned clerk
together with the forfeited licence.

By sec. 56, Act 1872, where the tenant of licensed premises

more than
one con-
viction on

88 ALEHOUSE — THE LICENSING ACTS.

is convicted of an offence, the repetition of which may render
the premises liable to be disqualified from being licensed for
any period, the clerk to the licensing justices, as part of his
duty, shall give notice of every such conviction to the owner (a)
of the premises whose name will be on the license, and on the
register kept by the clerk (sec. 36, Act 1872) ; and see also
sec. 29, Act 1874.
Recording Where more than one conviction is made on the same day,
the court may order one, or some only to be recorded on the
license. Act 1872, sec. 57.
the same A conviction under the Act will not be receivable in evi-
day. dence after five {b) years to subject the party to an increased

Evidence, penalty or any forfeiture. Act 1872, sec. 32.
Limitation ^^h.m section will only apply to a " penalty" or " forfeiture,"
of effect and not to a disqualification of the licensee or premises,
of order. Where the conviction has been omitted to be recorded,

Omission and it be otherwise proved to the court, the person or pre-
to make mises occupied by him will be subject to the penalty attached
to the order as if the order had been recorded. Act 1872,
sec. 33.
Judgments The registers of licences kept in pursuance of the Act and
and regis- endorsements of licences will be received as evidence of the
matters recorded therein. Act 1872, sec. 58.

The following is a summary of the convictions which may
be recorded : —

1. Allowing the buyer to consume liquor in evasion of
the licence. Act 1872, sec. 5.

2. Conveying liquor off the premises in evasion of the
licence. Act 1872, sec. 6.

3. Permitting drunkenness, or selling an intoxicating
liquor to any drunken person. Act 1872, sec. 13.

4. Harbouring prostitutes. Act 1872, sec. 14.

5. Harbouring a constable, supplying refreshments to
a constable when on duty, or bribing him. Act
1872, sec. 16.

6. Permitting gaming or unlawful games on the pre-
mises. Act 1872, sec. 17.

7. Selling as pure an adulterated article. Act 1874,
sec. 17.

8. Selling liquor during the closing hours. Act 1872,
sec. 28.

(a) The notice to the owner is (h) Under the repealed Stat,

to be sent bj a registered letter : 33 & 34 Vict. c. 29, s. 5, the
sec. 70, Act 1872. limitation was three years.

ter.

DISQUALIFICATION OF PREMISES. 89

9. Refusing to admit a constable on the licensed pre-
mises. Act 1864, sec. 16.

Disqualification of Premises.

Besides the liability of the licensee in regard to his status Forfeiture
to hold a licence (independently of other penalties he may ^^ ^ licence
incur), the premises may be rendered disqualified for having a^^^^^Jj^^^
licence attached to them. This will happen after the licensee convic-
has had two convictions recorded on his licence, when the tions, and
premises will, unless the court in its discretion otherwise ^lisqnahfi-
orders, be disqualified from receiving a licence for two years J^jJ pj.^.
from the date of the third conviction. Act 1872, sec. 30. mises.

As regards the conviction of persons licensed after the
passing the Act 1872 (sec. 31), the second and every subse-
quent conviction recorded on the licence will also be recorded
in the register of licences against the premises.

By sub-sec. 2, after four convictions (whether of the same
person or not) within five years so recorded, the premises
will be disqualified for one year.

And by sub-sec. 3, if the licences of two such persons in
respect of the same premises are forfeited within two years,
the premises will be disqualified for one year from the date
of the last forfeiture.

When two convictions have taken place within three years
under 34 & 35 Vic. c. 112, s. 10, for harbouring thieves in
respect of the same premises, whether the persons convicted
were the same or not, the court " shall direct " that, for one
year from the date of the last conviction, no licence be
granted in respect of such premises : and if granted it will
be void.

When a tenant is convicted of an offence against the Act, Notice to
and such offence is one the repetition of which may render the owner
the premises liable to be disqualified from receiving a licence ^f convic-
for any period, the clerk of the licensing justices is to serve ^^^^'
a notice of every such conviction on the owner of the pre-
mises (Act 1872, sec. 56), whose name will have been
endorsed on the licence (ib. s. 36), or whose name has
been entered on the register as owner under Act 1874,
8. 29. Copies of those entries will be evidence. Act 1872,
s. 58.

Upon the owner (if not also the occupier) of the premises Appeal to
being served with such notice, he may appeal against such *^^ P^^^y
order to the petty sessions, of the holding of which he will *^^*'^"*-
have had notice, under the following grounds : —

90 ANIMALS.

1. That he has had no notice of a prior conviction render-
ing the premises disqualified from receiving a licence.

'2. That the tenant held under a contract made prior to
the commencement of the Act 1872 ; and that the owner
could not legally have evicted him in the interval between
the commission of the oifeuce in respect of which the dis-
qualifying order was made and the receipt of the notice of
the immediately preceding offence.

3. That notwithstanding he had legal power to evict the
tenant, he could not with reasonable diligence have exer-
cised that power in the interval which occurred between the
notice and the second offence.

On the hearing the court may cancel the order. Act 1872,
s. 56.

This being a special appeal granted to the petty sessions,
there will be no appeal on it to the quarter sessions.

ANIMALS.

The first Acts for the protection of cruelty to animals
were passed in the sessions of 5 & 6 Will. 4 (c. 59), and
7 Will. 4 & 1 Vict. (c. 66). Both those Acts were re-
pealed by 12 & 13 Vict. c. 92.

12 & 13 Vict. c. 92, and 17 & 18 Vict. c. 60, make provi-
sion for the supply of food to impounded animals, and the
recovery of the costs thereof. Previously to 12 & 13 Vict,
the poor animals, while impounded, were made to suffer by
want of food and water, hunger and thirst, for the culpable
negligence or offence of their owners.

In 1876, an Act (39 & 40 Vict. c. 77) for the further
protection of animals and prevention of cruelty to them, was
passed to regulate, under strong restrictions, and to prevent
experiments calculated to inflict pain on animals, under the
practice known as " vivisection ; " and made all exhibitions
to the general public, whether admitted on payment or
gratuitously, of experiments on living animals, calculated to
give pain, illegal.

Attention is specially directed to the appeal clause in each
of these Act?. It will be seen that they are drawn in distinct
terms as to conditions and regulations for the appeal ; and
they are each more or less different from the conditions and
regulations of the Summary Jurisdiction Act, 1879, under
which, as in other cases of appeals against convictions, the

CRUELTY TO ANIMALS. 91

party aggrieved may make his election to appeal. See ^/^/r«,
tit. " Summary Jurisdiction Acts."

It may be noticed that it is only under the Contagious
Diseases Animals Act that the complainant has the right of
appeal on the dismissal of the information.

Cruelty to Animals,
12 & 13 Vict. 0. 92.

The 12 & 13 Vict. c. 92 was passed "for the mor^ Cruelty ,
effectual prevention of cruelty to animals ; " and sec. 2 under 12 &
enacts, that if any person shall " cruelly ill-treat, over-drive, J| ^^^ ^'
abuse, or torture, or cause, or procure to be cruelly beaten, '
ill-treated, over-driven, abused, or tortured, any animal, each
offender shall for every such offence forfeit and pay a
penalty not exceeding £o. For the definition of " animal "
see post, p. 94.

This section omits the qualifying word, " wantonly " (a) The hare
which was in the repealed statute ; and makes now the 6a?'<? act of
act of cruelty the offence. ^^'«^^y *^^

Sec. 3 prohibits the keeping, using, or acting in the man-
agement of any place for the purpose of fighting or baiting ||.^?!^*^^^ °^
any kind of animal whether of a domestic or wild nature, or animats*
permitting or suffering any place to be so used, under a
penalty not exceeding £5 for every day such place is so kept
used or managed ; the person receiving the money for
admission is deemed the keeper, and any person aiding,
encouraging or assisting such fighting or baiting is subject
to a penalty of not exceeding £5. The place must be " kept
or used for the purpose of baiting : " see Clarke v. Hague, 2
E. & E. 281 ; 29 L. J. M. C. 105 ; Morley v. Greenhalgh,
32 L. J. M. C. 93 ; 3 B. & S. 374 ; Budge v. Parsons, ih. 382.

By sec. 4 any person who by cruelty to any animal, Compensa-
causes damage to another person, Avill be liable to pay com- tion foJ^
pensation not exceeding £10; but such payment will not ^^"^^»^
affect any punishment under sec. 2 or 3.

By sec. 5 every person who shall impound or confine, or Impounded
cause to be impounded or confined, in any pound or re- cattle to be
ceptacle of a like nature, any animal, and fails to provide ^^^•
and supply it with fit and proper food and water, will be
subject to a penalty of twenty shillings. The impounder or

(a) " Wantonly " is retained (fee, ina licensed house, <kc. ; 7& 8
in the j^ct relating to cruelty by Vict. c. 87, s. 3.
a licensee to slaughter horses,

92 ANIMALS.

distrainer is alone liable under this section, and not the
pound-keeper: Durqan v. Davies, 2 Q. B. D. 118 ; 46 L. J.
M. C. \i2 ; 35 L. T. 810 ; 25 W. R. 230 (a).

As to a person licensed to slaughter horses not supplying
the animal with proper food and water, see section 9, and
tit. "Slaughter-Houses" (post).
Conveyance Any person carrying, or causing to be carried, upon any
of animals, yehi^ifj any animal in such a manner as to cause unnecessary
pain or suffering, will be liable to a penalty not exceeding
£3 for the first offence, and £5 for the second and every
subsequent offence.

Sec. 9, having reference to cruelty to animals brought to

a slaughter-house for slaughter, applies equally to a private

place (as a dog-kennel) as a licensed slaughter-house : Colam

V. Hall, L. R. 6 Q. B. 206 ; 40 L. J. M. C. 100 ; 23 L. T.

802 ; 19 W. R. 563.

The arrest. A constable may arrest a person offending under the Act,

" upon his own view ; " and on the complaint or information

of any person declaring his name and address, without any

warrant or other authority : sec. 13.

The com- The " complaint" before the justice must be made within

plaint. one calendar month after the cause for it has arisen, and

may be heard without information in writing : sec, 14.
Committal. A person convicted and not paying the penalty imme-
diately or as directed, may be committed to the House of
Correction, witii hard labour for two months, unless the
Before a penalty be sooner paid ; and if the conviction be before two
metropoli- justices, or a metropolitan police magistrate, such committal
*^"J^*Sis- 'jj^g^y be for three months : sec. 18.

. Any person obstructing, assaulting any constable, or keeper

a c ^nstable ^^ ^ pound in the exercise of his duty under the Act will be

or keeper liable to a penalty not exceeding <£5 : sec. 20.

of a pound. Cases of cruelty have come before the Court of Queen's

Decisions Bench on cases stated by the justices under Jervis's Act, and

on offences, been held to be within the Act, 12 & 13 Vict. c. 92. A few

illustrations may show the class of cases within the Acts.

In Murphy v. Manning, 2 Ex. D. 307 ; 46 L. J. M. C. 211 ;

25 W. R." 540 ; 36 L. T. 592, it was held that imless it

could be shown that the cutting off the combs of cocks (6)

(«) Should the party liable to (^) " Cocks " are held to be

supply the food and water fail to " domestic animals " : see Budye

do so, any other person may, and v. Parsonst, 3 B. »& S. 382 ; 32

recover the costs under 12 & 13 L. J. M. C. 95 ; Coyne v. Bradi/,

Vict. c. 92, sec. 6 ; see 17 & 18 12 Ir, L. E. 577 ; BaU'sy. M'Co'r-

Vict. c. 60, sec. 1. mack, 9 L. J. C. P. Jr.

CRUELTY TO ANIMALS. 93

was done for some lawful purpose legalized by custom for
the benefit of the animal itself, or for making it more ser-
viceable for the lawful use of man, the cutting the combs off
would be an offence.

In Everitt v. Davies, 38 L. T. 360 ; 26 W. R. 332, Ex. D.,
it was held that the owner of a horse which is incurably
diseased and in pain, turning it out to graze, where by
moving about to obtain its food it is inevitably put to
intense pain, commits an offence under the Act ; but he
would not be bound to slaughter the horse under other
circumstances : see also Powdl v. Knights, 38 L. T. 607 ;
'2% W. R. 721, Q. B. D.

Coursing rabbits within an enclosed place is not within
the Act. Pitts V. MUlar, 9 L. R. Q. B. 380; 43 L. J. M. C.
96 ; 30 L. T. 328.

In a case on appeal before Sir Wm. Bodkin, at the Middle-
sex Sessions, a cattle dealer was convicted of allowing his
cow to be " over-stocked " with milk at the New Cattle
Market, while the calf was standing by muzzled. Many other
instances may be mentioned ; as, overcrowding cattle in
railway trucks and in steamers ; having vessels badly
appointed for the conveyance of cattle (a).

Plucking birds when alive ; setting dogs on cats ; failing
to provide food for animals, &c., which are offences within
the Act, and have beey from time to time so treated by
justices at sessions.

There is no appeal given to the complainant on the dismissal Appeal,
of the summons. An appeal is, however, given to the party
" aggrieved " on a conviction where he is adjudged to pay a
sum exceeding £2, and which must be exclusive of costs :
R. V. Wanvickshire, 25 L. J. M. C. 119 ; 6 E. & B. 837;
Mcardo v. The Maidenhead, L. B. H., 27 L. J. M. C. 73.
The appeal will be to the next court of general or quarter
sessions holden not less than fourteen days after the day of
such conviction for the county, borough, or other jurisdiction
wherein the cause of appeal shall have arisen.

The section provides that the appellant shall give to the Notice
complainant a notice in writing of such appeal, and of the
cause and matter thereof, within three days after such con-
viction, and seven clear days at the least before such sessions.
And shall remain in custody until the sessions, or enter into

(a) See 41 & 42 Vict. c. 74, s. v. Colam, L. R. 10 Q. B. 544 ; 44
32 ; Transit of Animals Order, L. J. M. C. 185 ; 32 L. T ,725 j
sections xxiii. to xxxii. ; Johmon 23 W. R. G97.

94

ANIMALS.

a recognizance with two sufficient sureties, before a justice of
the peace to appear at the sessions, and try the appeal and
pay such costs as may be awarded, and upon entering into the
recognizance the appellant may be discharged from custody.

The Court will hear and determine the matter of the appeal,
and make such order as may seem meet, and " in case of
the dismissal or non-prosecution of the appeal, or the affirmance
of the conviction, sJmll order and adjudge the offender to be
punished according to tJie conviction, and to pay such costs as
shall be thereby awarded, and also the costs of snch appeal (a),
or incident thereto or occasioned thereby, and shall, if ne-
cessary, issue process for enforcing such judgment." Sec.
25, Act 1849.

The section gives the Court power to adjourn the appeal.

The appellant may elect to appeal nnder the Sum. Juris.
Act, 1879, sees. 31, 32." See infra; this subject discussed;
(infra) tit. "Sum. Juris. Acts."
Certiorari, Sec. 26 takes away the power of issuing a writ of
certiorari, the effect of which was to prevent the stating a
case to the Queen's Bench by the Quarter Sessions. R. v.
Cliantrell, L. R. 10 Q. B. 587 ; 44 L. J. M. C. 94 ; 32 L. T.
30-5 ; but see now, the Sura. Juris. Act, 1879, sec. 40 ; tit.
"Certiorari" {infra), p. 180.

The word "animal " in the Act includes any horse, mare,
gelding, bull, ox, cow, heifer, steer, calf, mule, ass, sheep,
lamb, hog, pig, sow, dog, cat, or other domestic animal.
Sec. 29, Act 1876.

By 13 Vict. c. 13, the Drugging of Animals Act, 1876, it
is recited that it was expedient to make provision against the
practice of administering poisonous drugs to horses and
other animals by disqualified persons, and without the know-
ledge and consent of the owners.

It is enacted by sec 1, that if any person wilfully and
unlawfully administers to, or causes to be administered to, or
taken b}?^ any horse, cattle, or domestic animal any poisonous
or injurious drug or substance, he shall (unless some
reasonable cause or excuse is shown on his behalf) be liable,
on summary conviction, to a penalty not exceeding £5, or, at
the discretion of the Court, to imprisonment with or without
hard labour, for any term not exceeding one month in the
case of the first offence, or three months in the case of a
second or any subsequent offence.

'Anil

Adminis-
tering
poisonous
drugs to
animals.

(a) It is imperative on the
court under the above section to
grant the costs : It. v. Yorkshire

W. R., 31 L. J. M. C. 271. See

this case under tit. " The High-
way Acts," infra.

VIVISECTION. ' 95

Nothing in the Act will affect the owner or person acting
by his authority in administering any such drug or
substance to the horse, &c. : sec. 2.

And nothing in the Act will exempt a person from liability
to any greater or other punishment which may be imposed
under any other Act or law, so that he be not more than
once punished for the same offence.

There is no appeal given by the Act; but by sec. 19, Appeal.
Summary Jurisdiction Act, 1879, the party convicted will
have his appeal, under the conditions and regulations of that
Act, should the sentence be one of imprisonment without the
option of paying a fine. See tit. "Summary Jurisdiction
Acts."

Vivisection.

Under "The Cruelty to Animals Act, 1876," 39 & 40 Provisions
Vict. c. 77, sec. 2, all painful experiments on living animals against
(known as "Vivisection") calculated to give pain are pro- ''^^^jf®*''
hibited under a penalty of not exceeding £50 for the first
offence, and £100 for the second offence or imprisonment
for not exceeding three months, unless the object of the
experiment (sec. 3) be the advancement of physiological
knowledge, or which may be useful for saving or prolonging
life or alleviating suffering, or may be absolutely necessary
for instruction and not the attaining of manual skill. The
animal must be under the influence of some anaesthetic
during the operation, and killed before sensibility returns, if
it be probable that pain w^ould be felt should sensibility
return. No experiment is to be performed at any lecture,
except the lecturer be licensed under the conditions of the
11th sec.

By sec. 6, public exhibitions of experiments on animals Public ex-
calculated to give pain are prohibited as illegal : and persons bibitions.
performing or aiding such experiments will be guilty of any
offence under the Act, and be subject to a penalty for the
first offence of £50, and for a second and any subsequent
offence, £100, or imprisonment not exceeding three months.

By sec. 21, for the prosecution of a licensed person the Prosecu-
assent in writing of the Secretary of State is necessary, tjon of
Sec. 13 empowers a iustice, on information on oath that ^^^^"sed

in (1 Ti n "

reasonable grounds exist for believing an unlicensed person, licensed
in an unregistered place, is performing experiments in con- persons.
travention of the Act, to issue a w^arrant authorising the
police to enter and search such place, and to take the names

^6 ANIMALS.

and addresses of the persons found there. Any person
obstructing the officer, or refusing his name on such occa-
sion, will be subject to a penalty of £5.
Appeal. Under the Act of 1876, sec. 16, where, in England, a party

thinks himself aggrieved by any conviction made by a Court
of Summary Jurisdiction on determining any information,
under the Act, the party so aggrieved may appeal therefrom,
subject to the conditions and regulations following : —

1. The appeal shall be made to the next court of general
or quarter sessions for the county or place in which the
cause of appeal has arisen, holden not less than twenty-one
days after the decision of the court from which the appeal is
made ; and

2. The appellant shall, within ten days after the cause
of appeal has arisen, give notice to the other party and to the
Court of Summary Jurisdiction (a) of his intention to appeal
and of the ground thereof ; and

3. The appellant shall, within three days after such notice,
enter into a recognizance before a justice of the peace, with
two sufficient sureties, conditioned personally to try such
appeal, and to abide th^ judgment of the court thereon, to
pay the costs awarded, or give such other security by deposit
of money or otherwise as the justices may allow; and

4. Where the appellant is in custody he may be released.

5. The Court of Ajipeal may adjourn the appeal, and
upon the hearing may confirm, reverse, or modify the deci-
sion of the Court of Summary Jurisdiction, or remit the
matter to that court with the opinion of the Court of
Appeal thereon, or make such other order in the matter as
the court thinks just ; and if the matter be remitted the
Court of Summary Jurisdiction shall re-hear and decide the
information in accordance with the order of the said Court
of Appeal. The Court of Appeal may make such order as to
costs to be paid by either party as the court thinks just.

See also the Summary Jurisdiction Act, 1879, sees. 31 & 32,
under which there is the option of election to appeal. As in
all cases the sections require careful comparison. See
remarks on those sections under tit. *' Summary Jurisdiction
Acts" (infra),

(rt) The notice is not required S. C. eo nom. In re Cm-tia, 3

under the 12 & 13 Vict. c. 92, Q. B. D. 13 ; 47 L. J. M. C. 112 ;

a7ite, p. 92. What is the Court of and see that case, infra, tit.

Sum. Juris. : see Curtis v. Busa ; " Alehouse."

CONTAGIOUS DISEASES ANIMALS ACT, 1873. D7

THE CONTAGIOUS DISEASES ANIMALS ACT,

1878.

Under 41 & 42 Vict. c. 74 (Contagious Diseases Animals Acta of
Act, 1878), sec. 33, railway companies are bound to make pro- Cruelty
vision for a supply of water and food for cattle at stations ^ T^ -
specified by the Privy Council ; and such food and water Diseases
must be supplied to any animals carried by the company, Animals
on the request of the consignor, or person in charge thereof ; Act, 1878
and the company may recover the cost of the consignor. y • t '"4

And as regards the supplying animals with tvatei% if the ^ ')^^y
person in charge of the animals makes no request for water,
and they remain without water for twenty-four hours, the
consignor and person in charge will each he guilty of an offence
under the Act; and it will be for the person charged to
prove such request, and the time within which the animal
had a supply of water : sec. 33. By sec. 60, any person
" guilty of an offence " against the Act will, for every such
offence, be liable to a penalty not exceeding £20 ; and
if committed in respect of more than four animals, to a
penalty not exceeding £5 for each animal. See the several Offences,
offences in sees. 61 and 62.

1. By sec. 66 it will be sufficient (sub-s. 1) to describe an
offence in the words of the Act, Order in Council, or regu-
lation of a local authority under which the offence arises, or
in similar words.

2. Any exception, exemption, excuse or qualification
may be proved by the defendant, but need not be specified
or negatived in the information ; or if specified or negatived
it need not be proved.

3. The warrant of commitment will not be void for any
defect therein, if there is a valid conviction to sustain it, and
it allege the person accused therein has been convicted.

4. Knowledge on the part of the owner or person in Knowledge
charge of the animal charged with an offence against the Act presumed,
relative to the disease or illness of the animal will be pre-
sumed, unless and until the defendant disprove such know-
ledge, and could not with reasonable diligence have obtained

that knowledge (a).

(a) Under the former Act it E. 8 C. P. 322 ; 42 L. J. M. C.

was necessary to show that the 105 ; Carroll v. Livers, 7 Jr. R.

piirtj kne7V the animals were Q. B. 226.
diseased : Nichuls v. Hall, L.

08 ANIMA.LS.

Onus of 5. Where a person is charged with not duly cleansing or

proof. disinfecting any place, vessel, vehicle, or thing belonging to

him or under his charge, and a presumption against him on
the part of the prosecution is raised, the onus of the proving
a due cleansing and disinfecting rests on the defendant.
6. The person charged may give evidence.
Where 7. The offence under the Act will be deemed to have

offence arisen either in the place where it actually was committed
committee . ^j. ^rose, or in any place where the person charged, or com-
plained of, or proceeded against, happened to be at the time
of the instituting or commencing the charge, complaint, or
proceeding. Johnson v. Colam^ L. R. 10 Q. B, 544; 44 L. J.
M. C. 185 ; 32 L. J. 725 ; 23 W. R. 697 (a).

By sec. 63, penalties may be recovered as under 11 <b 12
Vict. c. 43.
Detention See. 50 empowers a police constable to detain, without
by police, warrant, a person " found committing," or reasonably sus-
pected of being engaged in committing an offence under the
Act ; and may detain and examine the animal, vehicle, boat,
or thing to which the suspected offence relates, and may
require and enforce that the same be taken back to the place
or district from whence it was unlawfully brought.
Appeal. Any person thinking himself aggrieved by the dismissal of

a complaint by, or by any determination or adjudication of, a
court of summary jurisdiction under this Act, he may appeal
therefrom. Sec. 64 (1).

The appeal is to be made to the next practicable court of
general or quarter sessions for the count}- or place in which
the cause of appeal arises, holden not less than twenty-one
days after the decision appealed from (2).

The appellant must, within ten days after the decision,
give notice to the clerk of the court whose decision is
appealed from of his intention to appeal, and of the grounds
thereof, and to the other party (3).

The appellant is, within three days after such notice, to
enter into a recognizance before a justice, with two sufficient
sureties conditioned personally to try the appeal (4).

The court may adjourn the appeal and make such order
thereon as the court may think fit (5).

See remarks as to the appellant's right of election to appeal
under the Summary Jurisdiction Act, 1879, sees. 31 and 32,
tit. " Summary Jurisdiction Acts " {infra).

(a) Notwithstanding any Me- will be paid to the person who
tropolitan Police, or Municipal proceeds for the same. Sec. 66(b).
Act, one half of the penalty

SLAUGHTER-HOUSES. 9!)

Under the Act (sup.) 1878, the complainant has a right
of appeal on the dismissal of the information, not so under •
the other prior statutes ; there the appeal is only to be by-
party convicted.

Slaughter Houses.

The 26 Geo. 3, c. 71j sets forth that the practice of giau ^riiter-
stealing horses, cows, and other cattle had then increased houses
to an alarming degree, and had been greatly facilitated by licensed
persons of low condition who kept houses for slaughtering prevention
horses and other cattle : — for a remedy it was enacted, that of inrse-
no person should use any house or place for the purpose of stealing.
slaughtering any horse, mare, gelding, colt, filly, ass, mule,
bull, ox, cow, heifer, calf, sheep, hog, goat, or other cattle (a),
which is not killed for butcher's meat, without first taking
out a licence for that purpose at the general quarter ses-
sions for the county, &c., wherein the slaughtering-house is
situate ; and the justices are authorised and empowered to
grant such licence upon a certificate under the hands and
seals of the minister and churchwardens or overseers ; or of
the minister, and two or more substantial householders of
the parish wherein the applicant shall dwell, that such
person is fit and proper to be trusted with the management
and carrying on such business. In the event of the death of Provision
the licensee the widow or personal representative is allowed ^^ death of
to caiTy on the business until the ensuing quarter sessions. ^'^^'^•'^^®-

Under sec. 11 of 12 & 13 Vict. c. 92, no person can hold Horse
at the same time a licence to slaughter horses, and one as dealer n^t
horse-dealer. j.^^^^^^

Each licence under the statute is to be signed by the ^,.
justices, or the major part of them, assembled at quarter to licence
sessions ; a copy of the licence is to be registered by the
clerk of the peace, where search may be made for it if
necessary (sec. 2, Geo. 3, c. 71) ; and such licensee is to
affix over the door or gate of the house or place where the
business is carried on a large legible notice, in words pre-
scribed by the Act (sec. 2), that he is licensed for slaughter-
ing horses : on neglect he is liable to a penalty of £5 a day.
12 & 13 Vict. c. 92,8. 7.

In towns within the provisions of " The Towns Improve- Towns

ments Clauses Act, 1847 " (10 & 11 Vict. c. 34), slaughter- Clauses

Act.

(a) In the subsequent statute fined to include all the animils
(7 & 8 Vict. c. 87) "horse" is de- here enumerated.

F 2

100

ANIMALS.

Sanitary
approval.

Slaughter-
houses in
the metro-
polis.

Licence for
one year.

houses and knackers' yards are brought under the further
jurisdiction of the commissioners appointed under that Act,
and which provision does not interfere with the original
jurisdiction of the quarter sessions under the statute of
Geo. 3, which was passed, and is still in full force, as a
police regulation preventative against " horse " stealing.
The operation of the " Towns Improvement Act " is as a
sanitary regulation. In "towns," therefore, under sec. 125,
of the Towns Improvement Act, no person can carry on the
business of slaughtering cattle (not being used as butchers'
meat) without having obtained (and this will be in addition
to the licence from the quarter sessions) a licence for that
purpose from the Town Commissioners ; and under sec. 126,
any person using any place within the town, without having
first received such licence, will be liable to a penalty of not
exceeding £5 ; with a similar penalty for every day the
offence is continued after conviction (a).

Under the Metropolitan Management Act, 1862, 25 & 26
Vict. c. 102, s. 94, no licence, under 26 Geo. 3, c. 71, could
be granted by the quarter sessions before one month's notice
of the intention to apply for it had been given to the vestry or
district board ; but now by the further Act affecting the metro-
polis and the slaughter-houses therein (37 & 38 Vict. c. 67)
the establishing anew of the business of a " knacker," which
is defined to mean the "slaughter of any horse, ass or mule,
or any cattle, sheep, goat, or swine which is not killed for
butchers' meat," is absolutely prohibited ; and any person
carrying on such new business is liable to a penalty not
exceeding £50 a day. And by the 13th sec. the business
will be deemed to be established "anew," if it is removed
fi'om one set of premises to another ; or if renewed on the
the same premises after a discontinuance of nine months ;
or the premises be enlarged without the sanction of the
local authority ; but a change of ownership, or the recon-
struction of the premises after a fire, without extending the
area, will not be deemed an establishing the business " anew."

The quarter sessions licence is limited to a period of one
year, and must be annually renewed ; but on renewal no
further certificate is requisite. (7 & 8 Vict. c. 87, s. 1.)

(tf) As to a consent by a cor-
poration as commis&iouers where
slaughter-houses were built under
a "Market Act," to which the
corporation was a party, see
Afithoj^y V. The Brecon Marlcets

Company, L. E. 7 Ex. 399 ; 41
L. J. Ex. 201 ; 26 L. T. 979 : see
also Hughes v. Trew, 36 L. T. 585,
Q. B. D. ; and '' The Markets and
Fairs Clauses Act, 1847 " (10 &
11 Vict. c. 14, s. 19).

SLAUGHTER-HOUSES. 101

By sec. 4, 26 Geo. 3, c. 71, each licensed person is, however,
to attend every quarter sessions to produce the book which
he is bound to keep containing entries of all the horses and
cattle slaughtered by him. And as a further surveillance
over the licence, each inspector of slaughter-houses, ap-
pointed under sec. 5, is to attend every quarter sessions,
and produce his book for examination (sec. 12).

Under 7 & 8 Vict. c. 87, s. 2, the justices in quarter Qnartcr

sessions may cancel any licence granted by them upon ap- ^^^^^^"^

,.. *^, y . "^ , ^ ^ ."^ -i^-i i^^y cancel

plication and complaint made to them m writing by any licence.

person, and upon due proof that the complainant has given
fourteen days' previous notice in writing to the clerk of
the peace for the county [or borough with a court of
quarter sessions], and to the party complained against ;
and upon due proof to the satisfaction of the justices that
the person so licensed had been guilty of any violation of
the statutes 26 Geo. 3, c. 71 [and o & 6 Will. 4, c. 59, now
repealed by 12 & 13 Vict. c. 92]. Although there are
offences included in other statutes as regards slaughter-
houses, the 7 & 8 Vict. c. 87, seems the only one operative
for the cancelling of the licence. The respective obligations
of the licensee and the duties of the inspector will appear
from the following epitome of the sections of the 26 Geo. 3,
c. 71, and subsequent statutes : —

By sec. 3, every occupier of a licensed slaughter-house or
place is to give, six hours previous to the slaughtering of
any horse, (fcc, and to the flaying of any horse, &c., brought
dead to the slaughter-house or other place, notice in writing
to the inspector appointed under the Act (sec. 5), that he
may before the slaughtering or flaying take an exact account
of the same ; and no horse, &c., is to be slaughtered or flayed
but between 8 a.m. and 4 p.m. during the winter months from
October to March both inclusive, or between 6 a.m. and 8 p.m.
during the remainder of the year. By sect. 4, every person
so licensed is to keep a book, and enter in it at the time the
name, place of abode and profession of the owner of any
horse, tkc, brought for slaughter or flaying, and of the person
bringing it, and the reason why it is brought, the book to
be at all times open for the perusal and examination of the
inspector, and every licensed person is to attend with and
produce the book before any one justice of the county, &c.,
where the slaughter-house is situate when required by warrant
or order under the hand and seal of such justice so to do,
and is to produce it at every general quarter sessions for the
county [or borough].

102 ANIMALS.

By sect. 5, the inspector (a), on receiving the notice above
mentioned from the licensee, is to attend at the blaughter-
house, and take a full description of the horse or other
animal to be slaughtered ; and make entry thereof in his
book ; and the inspector is in certain cases to advertise
horses, &c., intended to be slaughtered, &c., the expense of
which advertisements is to be borne by the occupiers of the
slaughter-house under pain of conviction in double the
charge of the advertisements.

By sec. 6, every licensed person having, keeping, or using
any slaughter-house is to suffer any inspector (6) at all
times of day or night, but if in the night then in presence
of a constable, to enter and inspect such house, and also
any stable, building, shed, yard or premises belonging
thereto, and freely to examine for or see any horse, &c.,
there, and to take such account as before directed.

By sect. 9, if any person, keeping or using any such
slaughter-house or place, throw into any lime-pit, or rub
with any corrosive matter, or bury or destroy the hide of
any horse, &c., slaughtered or flayed by him, he is guilty of
a misdemeanor, punishable by fine, imprisonment and whip-
ping. By sec. 10, licensed persons making or causing to be
made any false entry in the book so to be kept by them as
aforesaid may be convicted and forfeit not more than £20
nor less than £10.

Under the 13th sec. of the Act of Geo. 3, any person who
may occasionally lend a house, barn, stable or other place
for the purpose of slaughtering or killing any horse, &c., or
other cattle (not killed for butchers' meat) without a licence
for such place, and shall be convicted thereof before one justice
on the evidence of two witnesses, the offender will be subject
to a penalty- not exceeding £20, nor less than £10 ; and in
case the same be not forthwith paid, imprisonment in the
House of Correction for any time not exceeding three months,
nor less than one month. See scale of imprisonment under
the Summary Jurisdiction Act, 1879.

The Act of Geo. 3 does not alFect curriers, &c., bond fide
killing an aged or distempered horse, <tc., or purchasing any
dead horse, &c., for the purpose of using in their trade,
or a farrier employed to kill aged or distempered cattle,

(a) An inspector neglecting to the licensed premises for inspec-

perf orm his duty is subject to a tion ; and any person obstructing

penalty of £10 (7 & 8 Vict. c. 87, an inspector in the execution of

s. 6). his duty may be fined £10 : 7 &

(J) A constable may ftlso enter 8 Vict. c. 87, s. 5.

SLAUGHTER-HOUSES, 103

nor any person killing any horse, &c., of tlieir own, or
purchasing any dead horse or other cattle to feed their own
hounds or dogs, or giving the flesh for a like purpose. (Sec.
U.)

But if any collar-maker, currier, felt-maker, tanner, or
dealer in hides, or farrier, or other person, under colour of
their respective trades or occupations, knowingly and wil-
lingly kill any sound or useful horse, &c., or boil or other-
wise cure the flesh thereof, for the purpose of selling the
same, such person will be an off'ender within the Act,
and forfeit a sum not exceeding £20, nor less than £10
(Sec. 15.)

Under sec. 3 of 7 <fe 8 Vict. c. 87, if any licensed person Cruelty by
wantonly (a) and cruelly beat, ill-treat, abuse, wound, or licensee to
torture any horse, or other cattle, in any house, pound, ^^ anima .
stable, or other place in his occupation, he will on conviction
forfeit a sum not exceeding £5.

Under the Towns Improvement Clause Act, 1847, 10 & 11 Licence
Vict. 0. 34, 8. 129, where a person is convicted of kill- ^^^ ^\ .

SllSOGUClGCl

ing or dressing any cattle contrary to that Act, or the in addition
" Special Act " (6), or of the non-observance of the bye-laws to penalty
or regulations made thereunder, in addition to any penalty, imposed,
the justices may suspend the licence for not exceeding two
months; and in case the offender be the owner or pro-
prietor of any registered slaughter-house or knackers'-yard,
the justices may forbid the slaughtering of cattle therein ;
and on a second conviction, may declare the licence revoked,
and absolutely forbid the slaughtering of cattle on the
premises ; and in such court the commissioners may refuse
to grant any licence to the person whose licence had been
so revoked, or on account of whose default the slaughtering
of cattle had been forbidden in the registered house, &c.
And by the 130th sec. should such person slaughter cattle
on such premises during the suspension of the licence, he
will be liable to a penalty not exceeding £5 ; and for a
repetition of such offence after the first conviction, a farther
penalty of £5 for every day the offence may be committed.

The Act for "the more effectual prevention of cruelty to ProTision
animals" (1849), 12 & 13 Vict. c. 92, s. 8, provides for the for supply
supplying of proper food and water for horses, &c., sent for lood to
slaughter, and requires that the hair be cut off the neck of ^.^^^ fg^

(a) " Wantonly " is here re- s. 2. slaughter,

tained as applying to licensed (J) *• Special Act" mcnns an

slaughterers ; it is omitted in the Act to be passed after 1847.
principal Act, 12 & 13 Vict. c. 92,

104

ANIMALS,

Working a
horse sent
for kennel
u.se.

Where
appeal.

Appeal
under 7 <fc 5
Vict. c. 87

Appeal
under 12
& 13 Vict,
c, 92.

Slim. Juris.
Act, 1379.

the horse sent for slaughter within three days; the non-
compliance with these regulations subjects the offender to a
penalty of not exceeding £5. Sec. 9 provides that no such
horse, &c., shall be employed in any manner of work under
a penalty of not exceeding 40s. for each day the horse may
be so employed. And by sec. 10, a full description of each
horse is to be kept by the licensee in a book, which is to
be open to inspection ; and upon a neglect to make such
entry, or to allow any inspection of, or to produce such
book when required by a justice, or to a person authorised
by him, such licensee will be liable to a penalty of not less
than 40s.

A huntsman of a pack of hounds had the charge of
the kennels and of the slaughter-house where horses were
slaughtered for feeding the dogs. Instead of slaughtering
a horse sent to him to be killed, he lent it to a person for
the purpose of being worked, and it was worked. It was
held that he was properly convicted under the above 9th
section ; and that such penalty was not confined to licensed
persons, under 26 Geo. 3, c. 71. Colam v. Hall, L. R. 6 Q. B.
206 ; 40 L. J. M. C. 100 ; 23 L. T. 802.

No appeal is given under 36 Geo. 3, c. 71. But should
the defendant be imprisoned without the option of a fine,
the case would come within the provisions of the Summary
Jurisdiction Act, 1879, and an appeal be had under it: see
sees. 19, 31.

The 7 & 8 Vict. c. 87, s. 9, provides for an appeal to
i the party " aggrieved " by any order or conviction under
that Act to the next (a) quarter session for the county
wherein the cause of complaint arose, provided the party
at the time of the order or conviction, or within forty-eight
hours thereafter, enter into a recognizance with two sureties
to appear and try the appeal, and abide the judgment, and
for payment of costs. The witnesses may also be bound
over, and may be paid their expenses, as in an ordinary
misdemeanour ; and should the appeal be dismissed, the
county treasurer will be repaid such expenses by the
appellant.

Where the conviction on which the appeal to be made
is made under the provisions of the 12 & 13 Vict. c. 92,
see the Appeal Clause, ante, p. 93.

The appellant will have his election to appeal under the

(«) <' The next practicable sessions : " sec. 32, Sum. Juris. Act,
1879.

APPEAL. 105

Summary Jurisdiction Act, 1879. See sees. 31, 32 ; and
infra, tit. Summary Jurisdiction Act."

As regards the Metropolitan Acts, sec. 6 of the Slaughter- Slaughter-
Houses Metropolis Act gives to the party aggrieved by any houses in
order or conviction under that Act an appeal to the quarter' ?. '"®*^"0"
sessions held not less than fifteen days, nor more than four . * ,
months after the decision of the court appealed from. The
appellant must give, within seven days after the cause of
appeal has arisen, notice to the other party, and to the
Court of Summary Jurisdiction (see Ex parte Curtis, S. C eo
nom. Bass v. Curtis, 3 Q. B. D. 13; 47 L. J. M. C. 112),
of his intention to appeal, and the ground thereof; and
immediately after such notice enter into his recogni-
zance to try the appeal, abide the judgment, and pay
costs. See also sees. 31 and 32, Summary Jurisdiction Act,
1879, infra, under which the appeal may be made.

APPEAL.

An appeal is a complaint made to a superior tribunal Definition,
against an alleged erroneous judgment of an inferior juris-
diction, and brought in order to avoid or quash it ; it is in
its nature a writ of error : Prosser v. Hyde, 1 T. R. 414.

It lies on a question of law or fact. Where a question of On what it
law is alone involved, the question raised may be referred ^i^s-
by special case to the High Court; but if the dispute at issue
is on facts, then the appeal is to the sessions {a) : Steel v.
Brennan, 41 L. J. M. C. 85.

The power of appeal to the quarter sessions is a special Right of
right, and not a general one : it is not to be implied in any ^PP-^^^ ^^h
case where not expressly given, and annexed to the autho- expressly
rity : R. v. Oxfordshire, 1 M. & S. 448; R. v. Worcestershire, given.

3 E. & B. 487. In this lies the distinction with a writ of
certiorari, which is of common law right, and cannot be
taken away except by express enactment : R. v. Hanson,

4 B. & A. 521 ; R. v. Liverpool {Mayor), 3 D. & R. 275.
When once given, the appeal cannot be taken away
by either implication or deduction from other clauses.

(</) When the appeal is given sessions week : see R. v. Middle-
to the general or quarter sessions, sex, 4 Q. B. 807 ; 5 D. & E. 580 ;
t he /7<?/ic7'a/ sessions maybe passed 17 L. J. M. C. Ill ; R, v. London,
over and the appeal be made to 15 East, 632.
the sessions held in the statutable

F 3

106

APPEAL.

Provision
for appeal
incorpo-
rated with
other
statutes.

Statutes
in pari
materia.

R. V. Hants, 1 B. & A. 654; R. v. Salop, 2 ih. 145 ; 7?. v.
Cumberland J J., 1 B. & C. 64 ; R. v. Stock, 8 Ad. & Ell.
405. Nor can the right be extended by inference, or equitable
construction: see Skone's case, 6 East, 514; R. v. Stafford-
sliire, 12 East, 572.

A borough rate, for instance, may be made, levied, and
recovered by the town council, under 7 Will. 4, and 1 Vict,
c. 81, s. 2, for defraying certain expenses "in the manner
provided by the Municipal Corporations Act." There is an
appeal against a borough rate, under sec. 92 of the Municipal
Corporations Act ; but as no appeal is mentioned in 7 Will. 4,
and 1 Vict. c. 81, it was held that there was no appeal against
a rate made under that statute : R. v. Ipswich {Recorder),
8 Dowl. P. C. 103. As to the limitation of the appeal
under sec. 92 of the Municipal Corporations Act, see R. v.
The Recorder of Bath, 9 A. & E. 871 ; Rawlinson's Municipal
Corporation Acts, by Geary, 7th ed. p. 135.

So also this point is illustrated under the repealed Acts
affecting bastardy : see R. v. Yorkshire W. R., 1 Q. B. 325;
see also R. v. Liverpool {Mayor), 3 D. & R. 275, where a
statute, after referring to a former Act, expressly declared
** that all the powers and provisions therein contained shall
be incorporated in the present Act." In one of the sections
the ceHiorari was taken away, and an appeal was given : under
this declaration the certiorari was held to have been taken
away generally, and the appeal applied to each statute.
See R. V. Skone, 6 East, 514 ; ^. v. Staffordshire, 12 id. 572 ;
R. V. Surrey, 2 T. F. 504.

Where the statute gave the justices power to make an
order on which an appeal was given, and a subsequent sta-
tute, in pari materia, incorporated therewith, varied the
terms in which such order might be made, and enacted that
such order should be final and conclusive, it was held, the
appeal was taken away. R. v. Bedivell, 4 E. & B. 213 ;
24 L. J. M. C. 17 ; i?. V. Hanson, 4 B. & Aid. 519.

On the other hand, where an Act is incorporated with
several others, in p>ari materia, to be construed as one Act,
and contains a general appeal clause ; and in one of the
subsequent Acts there is a provision that, on any fresh
proceedings under such Act, "the like proceedings " should
be had as under the former Act, a right of appeal is given.
So under the Highway Act, 27 & 28 Vict. c. 101, s. 21(a),
providing for the discontinuance of the maintenance of a

{a) Now under 41 & 42 Vict. c. 77, 8. 24.

APPEAL. 107

highway, and on which, upon the surveyors applying to two
justices to view the same, *' the like proceedings shall be
had as where application is made under the Highway Act,
1835," a right of appeal is conferred to the quarter ses-
sions in like manner as by sec. 88 of 5 & 6 Will. 4, c. 50;
R V. Surrey J J., L. R. 5 Q. B. 87, 466; 39 L. J. M. C. 49,
145. For other instances of appeals, under statutes in
pari materia, and consolidated by a subsequent Act, see
E. V. Liverpool {Mayor), 3 D. & R. 275 ; jR. v. Nuisances
Reinoval Commissioners of Middleton, 1 E. & E. 98 ; 28 L. J.
M. C. 40.

In some instances the appeal is to be made *' in like Appeal
manner," or "as near thereto as the nature of the case will ''^^ l^^©
admit," as provided for in some other Act : in such case the ^^/J"^^'

Or 3,8 DGiir

provisions come into operation as soon as the appeal begins, thereto as
and no sooner ; and the proceedings must then approximate the case
as nearly as they can under each particular circumstance. ^'^^^
See R. V. Carmarthen {Recorder), Ik. & E. 756; R. y. ^'^'"^^•"
Glamorganshire, 13 Q. B. 561; 18 L. J. M. C. 118; R. v.
Yorkshire, W. R., J J., 20 L. J. M. C. 23 ; R. v. Lancashire J J.,
18 Q. B. 361; 21 L. J. M. C. 164; R. v. St. Peter, Barton-
upon-Ihimber, 17 Q. B. 630; 21 L. J. M. C. 23.

In the case of R. v. Carmarthen {Recorder) {sup. ), the council Analogous
of the Borough under 5 & 6 Will. 4, c. 76, s. 92, made a poceed-
borough rate. The section gives them all the powers of^"^^*
county justices in quarter sessions under 55 Geo. 3, c. 51,
" or as near thereto as the nature of the case will admit ; "
but the council are not to hear any appeal against such
rate, and a person aggrieved is to appeal to the recorder of
the borough, who is to hear and determine the appeal " as
in the case of an appeal against any county rate." The
55 Geo. 3, c. 51, provides that {inter alia) notice of appeal
should be given to the clerk of the peace of the county, and
the hundred constable. In the case notice of appeal was
given to the town clerk, and not to the clerk of the peace of
the borough, and that was held sufficient. Williams, J.,
said : " We are to follow the analogy of a county rate as
nearly as possible. Some of the provisions respecting county
rates cannot be followed literally ; as the provision respect-
ing the constable of the hundred, there being no such officer
in a borough. We must then approximate ; and here notice
has been served on the party whose office most resembles that
of the clerk of the peace of a county." Per Coleridge, J.
" The council make the rate ; their officer should receive
the notice."

108

APPEAL.

Conditions
precedent
to right to
appeal
must be
exhausted.

Failing to
obtain re-
lief before
the assess -
mei.t com-
mittee.

Party must
be in fact
aggrieved.

All conditions precedent must have been exhausted by
which the appellant party could have obtained other relief
before his right of appeal attaches. Thus where under a
local Act an appeal was given to the quarter sessions on
anything to be done by virtue of the Act, if the party
aggrieved was dissatisfied with the determination of certain
officers to w^hom an appeal w^as given in the first instance,
upon appealing to those officers, they resolved, without
coming to a determination on the merits, to take no further
notice of the appeal. The Queen's Bench held that there
was no appeal against such resolution, as the officers had not
heard and determined the appeal, so that there was nothing
done on which to appeal {a). R. v. Kent JJ., 9 B. & C.
283 ; see R. v. Tucker, 3 B. & C. 544, where the petty
sessions heard evidence and determined they had no juris-
diction; it was held, that there had been u hearing and
determination, which was "a thing done : " see also, R. v.
St. Albans J J., 3 B. <fe C. 698; Blackmore v. The Glamorgan
Canal Co., 3 Y. & J. 60.

A ratepayer has an appeal against a rate when he has
"failed to obtain relief" on an appeal to the assessment
committee under the Union Assessment Act, 1864 (27 <fc 28
Vict. c. 39), s. 1. On an appeal to the committee, the com-
mittee adjourned their decision pending the hearing of a
special case then for consideration of the superior court,
whose judgment would govern their own decisic^n. The rate-
payer having appealed to the quarter sessions, it was held he
had not "failed to obtain relief," and that the quarter sessions
had no jurisdiction to hear his appeal. R. (or Williams) v.
Bedminster Union, 1 Q. B. D. 503 ; 45 L. J. M. C. 117; 34
L. T. 795. See also Lawes v. Arlsey, 18 W. R. 293, C. P. ;
also R. V. Lancashire JJ., 43 L. J. M. C. 116 ; 22 W. R. 647,
in which the respondents did not appear at the sessions, and
the rate was quashed ; but on the rule for a certiorari, Black-
bum, J., said : "the failing to obtain the relief from the as-
sessment committee was a condition precedent, and must be
proved, to give the sessions jurisdiction." See also R. v. G.
W. R. Co., 38 L. J. M. C. 89 ; L. R. 4 Q. B. 323 ; R. v.
Wiltshire, 48 L. J. M. C. 142 ; 4 Q. B. D. 326.

A further condition precedent to an appeal is that the
party appealing should be " aggrieved " by the act of which
he complains.

(a) The remedy would be by
mandamus to compel the officers
*' to hear and determine ; " and

upon their decision there would
be an appeal.

APPEAL. 109

In this, various expressions are used in the Acts, — such Various
as, "thinks or finds himself aggrieved;" "grieved;" " in- expressions
jured or aggrieved;" or " afi'ected by some act done," &c. oiihe

The appellant must be a person immediately/ and not con- <^i°fg^^°'
sequentially aggrieved ; and the grievance should be one used.
existing in law : Harrop v. Bayley, 6 E. & B. 218 ; 25 L. J. jji^^ie-
M. C. 107 ; R. V. Bishop Wearmouth, 5 B. & Ad. 942 ; R. v. diately
Edwards, 5 B. <fe Ad. 407. The two following cases will illus- a,;:grieved,
trate this proposition : — Under the Licensing Act, 1828, s. 27, ^^* ^^."-J^"
an appeal is given to " the person who shall think himself ag- ^"^^
grieved to appeal against any such Act," that is, the refusal
to renew or transfer a licence or the infliction of a fine ; it was
held in R. v. Middlesex, 3 B. & Ad. 938 ; R. v. Golbeck, 12
A. & E. 161, that the person here "immediately aggrieved "
by the act done, as by the decision of the justices on an
application for a licence, was the person whose licence was
dealt with, and not the owner of some public-house in the
neighbourhood, although of long standing, and whose busi-
ness might be seriously affected by a newly licensed house
being established near to it ; such a person's interest was
considered as being a mere licence for a year, and that . he
had no vested right (a) beyond that period, and was only
consequentially damaged : In R. v. Colbeck, 12 A. & E. 161,
under the old Highway Act, 12 & 13 Geo. 3, c. 78, every
inhabitant was deemed to be aggrieved by a bad appoint-
ment of a surveyor.

Under 4 & 5 Will. 4, c. 76, s. 79, and 11 & 12 Vict. c. 31, Grievance
s. 9, it is requisite that a notice of chargeability with a copy niust be
of the order of removal should be served on the officers of existing.
the parish or union to which a pauper is ordered to be
removed twenty-one days before the removal of the pauper.

(a) It is to be observed, how- are able to make out a case that

ever (72. v. Middlesex, snjyra), no new licensed house should be

that the suggestion that there established in the particular

is no vested interest beyond neighbourhood, to appear and

a year in a licensed house, oppose a new licence : see R. v.

rests on a fallacy. Every licence Deane, 1 G. & D. 292, 299 ; see

of a well-conducted house always also R. v. aw nton (St. Mary^, 8

was and still is of value and M. & S. 4(i5 ; R. v. Incledon, 1

saleable in the market as a M. & S. 268 ; R. v. Dewsnap, 1<>

vested interest ; and since the East, 194 ; R. v. Williams, <»

Licensing Act, 1872, sec. 42, that Q. B. 273, as to an immediate

intei"est is fully confirmed. Al- grievance from a local nuisance.
thonghR.x. Middlesex vciSkj illus- (J) See Loixi Mansfield's re-

trate the proposition, it is in fact marks in R. v. Denhighsliire,\

the custom to allow neighbouring B. & Ad. 616; 4 Burus's Justice

publicans, and other persons who of the Peace, 815,

110 APPEAL.

Until such service of the order there is no power to remove
the pauper, and therefore, until such notice and copy order
are duly served, there is no " existing " grievance on which
an appeal can be made : R. v. Shrewsbury {Recorder) (b), 1
E. & B. 711 ; 2-2 L. J. M. C. 98, overruling R. v. Brixham,
8 A. & E. 375 ; see ante, R. (or Williams) v. Bedminster
Union, 1 Q. B. D. 503 ; 45 L. J. M. C. 117 ; 34 L. T. 795 ;
R. V. Wiltshire, 48 L. J. M. C. 142. So a rate may be dis-
regarded which has not been published : Mihvard v. Caffin,
2 Wm. Black. 1336; R. v. Newcombe, 4 T. R. 368 ; Lord
Amherst v. Lord Somers, 2 T. R. 372 ; see also R. v.
Margam, 1 T. R. 775 ; R. v. Westbury, 5 Q. B. 500.

As regards the case R. v. Shrewsbury Recorder, where the
notice of the order of removal was not directed to the clerk
of the guardians at his office (see 30 & 31 Vict. c. 106,
8. 24), and the appeal was made on this informal notice,
objection being taken to the service ; it was held there was
no grievance on which to appeal. This case may be likened
to the non-publication of a rate, in which the rate may be
treated as a nullity {Millward v. Caffin^ 2 Wm. Black. 1330),
and the notice as informal and a nullity. There being no
grievance on such informal notice or information, the only
course left would be to await the actual removal of the pauper,
on which, as of old, the grievance would commence ; or the
reception of the pauper might be refused, leaving the re-
moving guardians to enforce their order ; should the pauper
be received, then a right of appeal would arise.

The objection would be merely technical, and would not
be received with favour ; and, inasmuch as the order might
be abandoned, and another order obtained, no real advan-
tage could be obtained by not admitting the service of the
notice. Upon such an objection being taken, the notice
being, in fact, informal, the removing parish should at once
serve a proper notice in lieu of the first {a).
There must There must also be " good cause " for the party saying he
be a good ig aggrieved. He must be able to show that he has a real
cause for special grievance pertinent to himself. See Erie's, J., remarks
gdevance '^^ ^- ^- Harrop, 6 E. & B. 218; 25 L. J. M. C. 107 ; see
pertinent also R. V. Essex, 5 B. & C. 431 ; i?. V. Bishop Wearmouth, 5
to the

appellant.

(a.) Under the Lands Clauses way " — held, there was evidence

Act, 8 & 9 Vict. c. 18, s. 68, a notice from which the jury might infer

was served on the secretary of that the notice had come to the

the B. Kailway (which ran from knowledge of the directors : East-

B. to C), at their offices, and ad- man v. The Blackburn Railway,

dressed to " the B. and C. Kail- 9 Exch. 758.

APPEAL. Ill

id. 942, in which case Lord Denman remarked that the ap-
pellate clause ought not to be so construed as to let in any
one who, taking a capricious view, might think himself ag-
grieved ; the appeal must be confined to those who may have
reasonable ground for thinking themselves aggrieved.

The decisions in -^. v. Shrewsbury {Recorder), R. (or Williams) When
V. Bedminster Union, (&c., supra, clearly shows that until the cause of
actual cause of complaint arises to create the grievance no accr^Je'^^"
right of appeal can have accrued. So under the General The act
Inclosure Act, 41 Geo. 3, c. 109, s. 8, the mapping out of an dune.
allotment and notice thereof was not the time of the
grievance ; but the act done of setting out the roads com-
menced the cause of complaint from which the time for
appealing would run. R, v. Middlesex JJ., 1 Chitty, R. 366 ;
Ji. V. Gloucestershire JJ., 3 M. & S. 127. The execution, and
not the date of the warrant for distress, for a highway rate,
is the time from which the right of appeal would run under
the old Highway Act, 13 Geo. 3, c. 78 ; "for," as the court
said, " non-liquet that it w^ould be proceeded upon : " R.
V. Devon J J, 1 M. & S. 411. See also, where the
appeal would be *' after the cause of complaint," " or when
the cause of complaint shall have arisen," "or next after
the cause of complaint should arise." R. v. Lanca-
shire J J., 8 B. & C. 593; R. v. Nickolls, 1 A. & E.
245 ; R. V. Salop JJ., 2 B. & Ad. 145 ; R. v. Pocock
8 Q. B. 729.

But where the Act fixes the time to run from the making Grievance
of the order, &c., the time for appealing must date from the on tie
time of the order being actually made, although the party "^^^"^S t^^Q
appealing had no knowledge of such order until too late for
his appealing against it.

"The period fixed by the statute is the making the
order, &c., which is too distinct and express to admit of
being varied by any gloss or construction," said Lord Den-
man, in R. V. Derbyshire J J., 7 Q. B. 193; ^^ notice of such
order made " cannot be substituted for the precise wprds of
the statute ; per Lord Ellenborough, G.J., in R. v. Stafford-
shire JJ., 3 East, 151.

So on an appeal on an affiliation order the appeal is to be Grievance
made within twenty-four hours after the adjudication and ^^ adjndi-
making of the order ; this means after the verbal judgment ^^ ^^"'
of the court, and not the making up of the formal order.
Ex parte Johnson, 3 B. & S. 947 ; 32 L. J. M. C. 193, ovei--
ruling R. v. Flintshire, 3 D. & L. 537 ; 2 N. S. C. 236.
See also ante, p. 107, 27 & 28 Vict. c. 39, s. 1 ; i2. v. Wilt- Grievance

112

APPEAL.

on failing
to obtain
relief.

Grievance
on service
of notice of
assessment.

Grievance
on penalty
will not
include

costs.

Question,
is the
grievance
within the
statute ?

Volenti
lion fit
injuria.

shire, 48 L. J. M. C. 142; 4 Q. B. D. 326; R v. The Great
Western Ry. Co., 38 L. J. M. C. 89 ; L. R. 4 Q. B. 323,
and other authorities on " failure to obtain relief" from the
Assessment Committee.

Under the Nuisances Removal Act, 1855 (repealed), there
was the same right of appeal as under the Highway Act,

5 tk 6 Will. 4, c. 50, s. 105 ; the person aggrieved had his
appeal fourteen days after service on him of the notice of
assessment on the premises assessed, and not from the time
when the amount of the rate was fixed. Bayley, J., observed
that parties may be present in Court when rules are pro-
nounced, but are not bound to take notice of them until they
are served. The party may or may not be present when this
order was made ; and it is desirable that the practice should
be uniform whether he does or does not attend : see R. v.
Lancashire J J., 8 B. tfe C. 595 ; 2 M. & R. 519 ; see also
R. v. Nuisances Removal Committee of Middleton, 28 L. J.
M. C. 41 ; 1 E. & E. 98.

A grievance may exist on the infliction of a penalty as
under the Prevention of Cruelty to Animals Act (12 & 13
Vict. c. 92, s. 25), giving a right of appeal when the penalty
adjudged on a conviction exceeds 40s., but this must be the
full penalty independent of costs : R. v. Warwickshire JJ.,

6 E. & B. 837 ; see Ricardo v. The Maidenhead Local Board,
27 L. J. M. C. 73.

Where there is the express provision in a statute giving
an appeal, the only question is, — does the particular griev-
ance, of which the appellant complains, come within the
meaning and words of the appeal clause % See R. v. Thicker,
3 B. & C. 544 ; R. v. St. Albans, ib. 698 ; R. v. Kent, 9 id.
283 ; R. V. Devon, 4 M. & S. 421 {a).

But the maxim volenti non fit injuria applies where the
party appealing has himself in any way consented to the
doing the act of which he complains. Erie, J., likoied his
case to that of a relator in a quo warranto information, who
could not be heard to say that an election in which he had
concurred was void : see Harrop v. Bayley, 6 E; & B. 218 ;
25 L. J. M. C. 107 ; but it would seem that had the appel-
lant withdrawn his assent before the act appealed against
was done, he might appeal as though his concurrence had

(a) On a prosecution under
5 & 6 Will. & Mary c. 11, charg-
ing a defendant vidth attempting
to set fire to a house, the defend-
ant was convicted and paid the

fine ; but the prosecutor went
without his costs, as he was not a
person injured, for there vrns no
damage done : R. v. Ingledon, 1
Wilson, 139.

APPEAL. 113

never been given : see S. C. 25 L. J. M. C. 107 ; see also
Graves v. Janssens, 9 Ex. 481; TraffordY. Bothm, 3 Atk. 440.

A corporation may be " a party aggrieved : " Cortis v. The A corpora-
Kent Waterworks Co., 7 B. & C. 314 ; so turnpike trustees , ^^^^^^..^^J^^^
who might appeal by one of their body (acting on their be- °°
half), though he be not joer^OTia/Zy aggrieved ; R. v. Surrey^
JJ.,6 A. &E. 701, n.

Nominal parties may be "aggrieved," as commissioners in Nominal
the name of a watchman: B. v. Edwards, 5 B. & Ad. 407, n. ; parties
a select vestry in the name of the master of the work- ^°^^
house : 2i. v. Dewhurst, ih. 405 ; R. v. Williams, 6 Q, B. 273 ;
and see R. v. Dohson, 9 Q. B. 302 ; R. v. Harrop, 25 L. J.
M. C. 107; 6 E. (k B. 218; R. v. Chatham, 12 Q. B. 300;
17 L. J. M. C. 161.

A pauper may himself be aggrieved by an order for his A pauper
removal, and may anpeal against it : R. v. Harijield, Carth. i^ay be
222 ; Comb. 478. This was the law prior to 11 & 12 Vict. ^§8^^^^^
c. 31 ; see 13 & 14 Car. 2, c. 12, s. 2. removaT ''

By 28 & 29 Vict. c. 79 (The Union Chargeability Act), ^^^
sec. 3, guardians of unions may both defend and appeal guardians
against orders of removal : R. v. Colbeck, 11 Ad. & Ell. 161 ; may prose-
9 L. J. M. C. 61. And they will act with the like incidents cute and
and consequences as in the cases proceeded with by and^^^"l
against the overseers. R. v. Westmorland, 12 L. J. M. C. 113; '
1 D. k L. 178 ; R. v. BenhigMhire, 1 B. & Ad. 616.

Where public officers are entitled to appeal collectively, as Public
overseers of a parish on the part of the parish, the appeal officers'
cannot be instituted by a less number than a majority of ^'S''t |o
them ; one overseer alone could not appeal. R. v. Lancashire niaioritY
JJ., 5 B. & Aid. 755. ^

Several ratepayers may join in one appeal against the same Appeal by
rate, and the court will consider their individual cases several
separately: R. v. White, 4 T. R. 771. So several persons P^^^^''^^^^^^'^
may join in an appeal against a rate alleging as their ground °"^ ^^'^^
that several others are rated in a less proportion than them-
selves : R. V. Sussex, 15 East, 206 (a) ; see also R. v. Oxford-
shire, 4 Q. B. 177. Where the appeal on the rating has been
commenced against the rating of more than one person, the
appellant may abandon an appeal as against one or more,
and proceed as respects the remainder. R. v. Ke?it JJ., L. R.
6 Q. B. 122 ; 40 L. J. M. C. 76, questioning R. v. Cambridge-
shire, 19 L. J. M. C. 130; 1 L. M. & P. 47.

In the notice of appeal the appellant must state that he is Notice

(a) See R. V. Uyre, 26 L. J. M. C. 125, as to form of appeal.

114

APPEAL.

facts a
grievance.

must state in fact aggrieved: per Abbott, C. J., in M. v. ^ssex JJ., 5
party is B. & C. 431, in which case there was no statement of facts
oSr^b ^^^^ which it could be inferred that the party had good cause
for any special grievance, beyond any other rateable in-
habitants : see remarks in i?. v. Yorkshire, 7 B. & C. 678.
The result is that the party appealing must either state he
is in fact aggrieved, or set out facts showing good cause that
he is aggrieved. B. v. Bond, 6 A. & E. 905; H. v. Blackawton,
10 B. & C. 792 ; R. v. Yorkshire, re Bower, 4 B. & Ad. 685 ;
a. V. Poole {Recorder), 1 Nev. J. P. 756; ii?. v. Somersetshire,
JJ., 7 B. & C. 681.

Party at
whose
instance
complaint
made —
nominal or
real re-
spondent.

Parties

compelling

litigation.

Instances
Avho are re-
spondents.

Justices re-

The Respondent,

In most cases the statute directs against whom the appeal
is to be made ; should the statute not so direct, then the
party at whose instance the proceedings have been prosecuted
would be the proper respondent. Thus the party at whose
instance a complaint has been made under the Vagrant Act
may be treated as the real respondent (although the justices
are the respondents under the Act), and may be ordered to
pay the costs. R. v. William Smith, 29 L. J. M. C. 217.
See also R. v. Furdei/, 5 B. & S. 909 ; 34 L. J. M. C. 4 ; R. v.
Hants JJ., 1 B. & Ad. 654 ; R. v. Goodall, L. R. 9 Q. B. 557.

*' Parties who compel litigation must put themselves in
the right," said Mellor, J., "and ought to pay the costs
incurred by improperly setting the law in motion." Tke
Great Northern Ry. and London (k North Western Ry. Joint
Committee v. Inett, 46 L. J. M. C. 238.

The following case will further illustrate who may be con-
sidered as the respondent :

An order was made adjudging the settlement of a lunatic
pauper to be in parish S. D., and S. D. was ordered to pay
to the treasurer of the guardians of M. union, in which the
removing parish C. was situate, the expenses incurred by C.
about the conveyance, &c., of the pauper lunatic ; the
sessions quashed this order, and ordered the overseers of C.
to pay the costs of the appeal to the overseers of S. D. It
did not appear who resisted the appeal, the parish of C. or
the union, or both. At all events, if the treasurer of the
union was in form respondent, he was so as agent of C, and
the resistance was substantially on behalf of C, and the
order of sessions was confirmed : see 8 & 9 Vict. c. 126,
ss. 58, 62 ; R. v. Chatham, 12 Q. B. 300 ; 17 L. J. M. C. 161.

In some instances the justices who adjudicate on the case

THE EESPONDENT. 115

are to be made respondents ; and in some of the later statutes spondents ;
the term " Court of Summary Jurisdiction " is used as in- Court of
eluding the respondent justices. In any appeal where the j"™'^!^^
justices or "Court of Summary Jurisdiction" are parties, it ^^^j^ ^jjg.
will be important to watch the course to be adopted in tinctive
making the justices or " the court " respondents. For under the
instance (a), in appeals under the Highway and other Acts f^^^.
under which the justices may be respondents (but not as ^^.^g ^^^^
under the term " Court of Summary Jurisdiction " when the the Sum-
notice is to be delivered, specially under the statute, to their mary juris-
clerk), all the justices who took part in the proceedings, or ^^JjJj?" ^^*'
those who have signed the order appealed on, must not only Weights
be made respondents, but each justice must be personally and
served with the notice of appeal, or such notice be left at Measures
their residences: R. v. Bedfordshire, 11 A. & E. 134; that ^^*' 1^'^-
case was under the Highway Act, 5 & 6 Will. 4, c. 50 ; but
the same point was decided under the Licensing Act, 1828,
in R. V. Cheshire J J., id. 139 ; and both cases overruled the
prior cases, R. v. Staffordshire JJ.^ 4 A. & E. 844 ; A\ v.
tSullifant, id. 354. And where under the more recent
Licensing Act, 1872, sec. 12, "the Court of Summary
Jurisdiction " is to be made respondent on an appeal against
a conviction under that Act, the same rule was held to apply
as that applicable to a personal notice to justices, being
members of the court, as decided in R. v. Bedfordshire and
R. V. Cheshire; and where the appellant served his notices
on the clerk to the court, such service was held to be bad.
Curtis Y. Buss, 3 Q. B. D. 13 ; 47 L. J. M. C. 35 ; 37 L. T.
533 ; sub nom., 26 W. R 210, Bx parte Curtis.

But with regard to the more recent Weights and Measures
Act, 1878, the Summary Jurisdiction Act, 1879, and other
statutes under which a Court of Summary Jurisdiction is
made respondent in matters of appeal, the service of the
notice of appeal is there specially enacted shall be upon the
cleric to the coui*t, on behalf of the justices. (See tit. " Sum-
mary Jurisdiction Acts," infra.)

Where the justices are to be made respondents, whether Want of
individually, or as a Court of Summary Jurisdiction, there uniformity
is a great want of uniformity of procedure under the diflfe- ^" P^'o-
rent statutes ; it is therefore essential that in each case the against
appellant should carefully consider the appeal clause of the justices,
particular Act under which he is appealing, and strictly
follow the prescribed rules and regulations.

(*) See also ante, p. 72.

116

APPEAL.

Party con-
cerned.

Party in

whose

favour

order

made.

Parties in-
terested.

Appeal
may be
virtually
against the
whole
rate.

Abandon as
to part
where more
than one
respondent.

Some Acts require notice of appeal to be given to " the
party or parties concerned " in the matter of the appeal : —
for instance, under the Inclosure Acts, where the appeal was
against an order defining the boundary between two town-
ships, the notice of appeal should not only be given to the
commissioners, but also to the lord of the manor (or his
agent) as interested in the soil. The interest of the com-
moners would be too remote. B. v. Lancashire JJ.^ 1
B. & A. 630.

The appeal may be against "the party or parties in whose
favour the order hath been made;'' as under the Truck
Act, 29 Geo. 2, c. 33. Under that Act one half of the
penalty would go to the informer, and one half to the poor
of the parish; it was considered that the parish officers need not
be made respondents, their interest being too remote, as they
would not be interested in the penalty until after the money
had been levied. Anonymous, 2 Smith, 240.

In an appeal against a poor rate under 17 Geo. 2, c. 38,
sec. 4, and 41 Geo. 3, c. 23, sec. 6, which statutes are to
be read together, the overseers and churchwardens, and
all parties interested in the event of the appeal, are to be
made respondents. So that all those whose rating is objected
to or questioned on the appeal must be made respondents,
and all have notice of appeal. R. v. Broohe, 9 B. & C. 915 j
E. V. Cambridgeshire, 1 L. M. & P. 47 ; 19 L. J. M. C. 130 ; B.
V. Eyre, 26 L. J. M. C. 121 ; 6 E. & B. 992; this latter case
holding that the two statutes are to be read as one.

But if the ground of complaint is that the apijellant is
overrated in respect of all the other parties rated, no notice
to them i3 necessary, as the alteration sought is a diminu-
tion of the assessment, and the remainder remain entire.
M. V. Suffolk, 1 B. & A. 644.

In R. V. Cambridgeshire (sup.) all the parties interested
had not been served with notice of appeal; the sessions
refused to allow the appellant to abandon the appeal as
against those not served, and proceed against those respon-
dents who had been served. The Court of Queen's Bench
held the sessions were right in so refusing. But in R. v.
Eyre (sup.), it was held that under 17 Geo. 2, c. 380,
the sessions would be bound to iidjoum the appeal on request
that the proper notices might be given ; and in R. v, Kent,
L. R. 6 Q. B. 132; 40 L. J. M. C. 76; 19 W. R. 205, decided
imder 25 & 26 Vict. c. 103, s. 18, where the appellant had
appealed to the assessment committee as being overrated,
and that A. and B. were underrated, a small alteration was

THE NOTICE OF APPEAL. 117

made in A.'s rating, upon which the appellant refused to
proceed further. On a rate being made, the appellant, on
the same grounds, appealed to the sessions, and served A. and
B. with notices. It was objected on the hearing by B. that
the appellant had not complied with sec. 1 of 27 & 28 Vict. c.
39, not having foiled to obtain relief in respect of him. The
appellant then offered to abandon his appeal respecting B.'s
rating, and to proceed with that against A. The sessions
refused, but the High Court held they were bound to hear.
This authority may be considered as overruling R. v.
Cambridgeshire (sup.).

Upon the respondent's dying pending an appeal, the more Respon-
material case w^ould arise in a bastardy appeal, where the dent dying.
Act requires the evidence of the mother (the respondent) to
be heard as of necessity ; this point is discussed under the
title "Affiliation," see infra, p. 47.

In a case where the defendant, a bricklayer, had died
before argument on a certiorari, to bring up a conviction for
not building party walls according to the statute, the court,
notwithstanding, went on and confirmed the conviction.
E. V. jRoberts, 2 Str. Rep. 937.

Notice of Appeal.

Where an appeal is given (unless the decision of the Where an
justices can be reviewed on a special case stated under ^PP®^^. ,
Jervis's Acts, on some point of law on agreed facts, for the fi^e^o^iy '^
opinion of the High Court), the appeal is the only remedy to remedy to
the party aggrieved ; where there is the statutable remedy be fol-
it must be followed : see Atkinson v. The Newcastle and ^^wed.
Gateshead Waterworks Company, 2 Ex. D. 441 ; 46 L. J. Exch.
775 ; 36 L. T. 761, 0. A. In an action for trespass for
executing a warrant of distress upon a poor rate, the first
point was " whether the rate was good and sufficient : " on
which Lord Mansfield, " finding that the parties were about
to speak to it, took notice that all about the rate was clearly
out of the case, for if they w^ere bad the parties who thought
themselves aggrieved should have appealed : " Hutchins v.
Chambers, 1 Burr. 580 ; see also Brunell v. Brighton, 5 T. R.
182; Durrant v. Brys, 6 T. R. 580; Cortis v. The Kent
Watenvorks, 7 B. & C. 314. If an order unappealed upon
is good on its face, it is an answer and sufficient defence in
an action of trespass on a seizure of goods for disobedience
of the order. The question of liability must be raised on an

118 APPEAL.

appeal, excepting the justices have acted wholly ivithout Juris-
diction. Faivcett v. Fowlis, 7 B. & C. 394 ; see also Durrant
V. Boys, 6 T. R. 580.
Rate not to In an action of replevin for taking goods the defendant
be disputed j ustified the taking as under a distress for a poor rate. The
wit^hout^^^ plaintiff had visible personal property in the parish, on
appeal. which he had been rated, and had not appealed against the
rate, which, looking to the words of the Stat. 43 Eliz. c. 2,
s. 1, the magistrates had power to make; the "ability " to
pay was for the judgment of the overseers, subject to an
appeal to the sessions : it was held replevin would not lie,
the plaintiff not having appealed, and he could not raise the
question in an action : Marshall v. Pitman, 9 Bing. 595 ; see
also R. V. Gloucestershire, 29 L. J. M. C. 117 ; Luton Local
Board v. Davis, ib. 173 ; R. v. Br^culshaw, ih. 176 ; Ex pai^te
May, 31 L. J. M. C. 161 ; Mersey Docks Board v. Jones and
Cameron, 30 L. J. M. C. 185, 194.
Distinction Where, however, the rate is a nullity, as from not having
where rate i^ggn " published " or otherwise, it may be disregarded, and
action on it defeated without appeal : Milhvard v. Caffin, 2
Wm. Black. 1330 ; R. v. Newcombe, 4 T. R. 368 ; Lord Am-
herst V. Lord Somers, 2 T. R. 372 : and no grievance woul4
have existed on which to appeal : see ante, p. 108.

Lord Denman, in The Churchwardens of Birmingham v.
Shaw (10 Q. B. 868), held, that there having been no appeal,
there was no way open for questioning the rate ; and laid
down the test in such cases to be, whether the Act sought
to be impugned was within the jurisdiction of the persons
doing it, or ab initio null and void. See also Nicliolls v.
Walker, Cro. Car. 394 ; Weaver v. Price, 3 B. & Ad. 409 ;
Sibbald V. Roderick, 11 A. & E. 38.
Notice of A notice of appeal is in the nature of a process ; it is
appeal in notice of w^hat one court has decided and which authorises
b ^tal\ another court to proceed : Erie J., R. v, Middlesex, 5 D. & L.
or implica- ^^^' When the statute giving the right of appeal to a
tion. party aggrieved is silent as to serving the respondent with

notice, there is an implied condition precedent to the hear-
ing that notice of appeal should be given to the party inte-
rested in supporting the act complained of. Such notice
should be a reasonable one as to time, given without unneces-
sary delay, and in conformity with any rule which may have
been made by the quarter sessions : see Ex pay-te Blues, 5
E. & B. 291, 299 ; 24 L. J. M. C. 138. The rule of sessions,
however, must not be inconsistent with the statute, as by
requiring notice to b^ given to the justices convicting, and

THE NOTICE OF APPEAL. 119

thereby introduce a new condition not to be inferred under
the statute : see R. v. Staffordshire J J., 4 A. (k E. 842 (on the
repealed Act, 53 Geo. 3, c. 127, s. 3). When the rule of
sessions is reasonable, the High Court will not interfere with
it : R. V. Cambridgeshire J J., 1 L. M. & P. 47 ; 19 L. J. M. C.
130 ; i?. V. Kesteven J/., 3 Q. B. 810 ; 13 L. J. M. C. 78 ;
12 & 13 Vict. c. 45, s. 9. In some instances the entering
into the recognizance required by the statute to prosecute
the appeal had been held sufficient notice of the intention
to appeal to the respondent ; this was so where the respon-
dent interested in the conviction must, in the course of events
have been aware of the recognizance being entered into {a) : see
R. V. Ussex JJ., 4 B. & Aid. 276 ; R. v. Kent JJ., 6 M. & S.
258.

In Ex parte Blues Lord Campbell remarked : " We are not ^x parte
called upon to decide what notice of appeal is required under Bhies,
the circumstances, but we wish it not to be supposed that overruling
the court acquiesce in the rule said to be laid down by ^^^^ ^^> ^t
Bayley, J., in R. v. Essex JJ., that if an Act of Parliament Kent.
giving an appeal against a conviction does not prescribe a
notice in terms, there is no occasion to give notice of appeal
to the opposite party. Bayley, J., does not lay down such a
universal rule. In that case the Act required the party to
enter into his recognizances to prosecute the appeal, and the
opposite party must have known, from his so doing, that it
was the intention of the party to appeal, and further notice
was considered unnecessary. Notwithstanding R. v. Essex,
notice of appeal should be served on the opposite party.
The reasonableness of the notice is for the sessions." See this
point fully discussed under the Summary Jurisdiction Act,
1879 (post), when reviewing the more recent case of R. v.
Salop, 50 L. J. M. C. 72, and notice required when the bare
right of appeal is given by a '^ past Act" against a conviction.

Where a statute directs the justices to inform the party Party con-
that he can appeal against the convictions, they should not victedtobe
only do so, but should inform the party of the notices he j^formed
would be required to give of his intention to appeal, and that j^^ may^rp-
he should enter into his recognizances to prosecute the peal ; and
appeal ; or the notice of appeal may be dispensed with : per of notice
Lord Kenyon, C.J„ R. v, Leeds J J, 4 T. R. 583. But ^^q^l^^d ou
where the party has declined to appeal there is no occasion ^^^^^^*^°"-

for them to go through the nuo^atory act of informing: him ^^"^ warn-
^ ° o J o j„g „,a^y j^Q

waived by
{a) Some statutes provide zance before a justice is notice to defendant,
that the entering into reoogni- him. See ante, p. 44.

120 APPEAL.

of what he must do to appeal: R. v. Yorloihire J J., 3 M. &
S. 493.
Statutable When the particular statute prescribes the form of notice
notice to be Qf appeal to be given, such requirement must be strictly
followed, unless the case falls within Baines' Act (12 & 13
Vict. c. 45), when the directions of that Act must be ob-
served : see R. v. MauLe, 41 L. J. M. C. 47.
Sessions But although the Quarter Sessions have a discretionary

rules must power to make rules for the governance of their own sessions
ableTur" ~^^^ ^- ^- ^^^f^^^^^y 10 East, 404 ; R. v. Lancashire, 7 B. &
not contra ^- ^^^ — ^^^ rules they seek to enforce must be reasonable to
to statute, give them jurisdiction to entertain an appeal, and of this
they are not the exclusive judges ; for in some instances the
High Court will see that they act legally and in accor-
dance with the jurisdiction they possess. R. v. Yorkshii-e
W. R, 5 B. & Ad. 667.

The words of a statute cannot be affected by any rules of
sessions : R. v. Yorkshire W. R., 4 B. & Ad. 685 ; 5 B. & Ad.
667 ; see also R. v. Lincolnshire, 8 B. & C. 548. Nor can
the sessions add a condition which is not imposed by the
statute. R. v. Pawlett, L. R. 8 Q. B. 491 ; 42 L. J. M. C.
157 ; 29 L. T. 390 ; see also Bailey, J., in R. v. Salop, 4 B.
& Aid. 626-9 ; R. v. Norfolk, 5 B. & Ad. 990 ; R. v. Surrey, 3
N. S. C. 531.
Nor make The High Court will not recognise a general rule of ses-
niles which gions that in no case will they allow more than 40s. costs ; on
^'',.^/^r mandamus they were required to exercise their "discretion."
of their See Coleridge's, J., remarks in R. v. Glamorganshire, 19 L. J.
statutable M. C. 172 ; see also R. v. Nottingham, 1 Sess. Ca. 442.
discretion. The construction to be put upon it is for the sessions in
Construe- their discretion to determine ; the High Court will not inter-
tion of fgj.g with such discretion so long as the construction put upon
no ice or ^^ -^ ^^^ which the document will reasonably bear : R. v.
Cambridgeshire JJ., 1 L. M. & P. 47 ; 19 L. J. M. C. 130.
Before the High Court will interfere it must appear that the
sessions have decided wrongly in declining to exercise a
jurisdiction imposed on them by law. Their judgment can
otherwise only be reviewed on a case stated by them on facts
found by them for the opinion of the court : see R. v.
Kesteven, Lincolnshire, 3 Q. B. 810 ; 13 L. J. M. C. 78, over-
ruling R. V. Carnarvonshire, 2 Q. B. 325 ; 11 L. J. M. C. 3 ;
R. V. Yorkshire W. R, 2 Q. B. 331 {Keighley v. Wilsden). R.
V. Carnarvonshire turned on a misapplication of the term
" preliminary objection." The court will not consider the
reasons for the decision of the sessions, however erroneous on

THE NOTICE OF APPEAL. 121

fiicts : R. V. Yorkshire W. R. J J. ; Longwood v. Halifax, 1 1
L. J. M. C. 57 ; R. v. Kent JJ., 41 J. P. 263 ; R. v. 'Middle-
sex J J. Slade's case, 2 Q. B. D. 516 ; 46 L. J. M. C. 225 ;
36 L. T. 402 ; 25 W. R. 610.

In the case R. v. DenhigJishire, 9 Dowl. 509, the notice of
appeal described the order of removal as made by If. U.
('andy and another magistrate, instead of B. Candy (there
being two justices in the county with those initials); the
sessions refused to hear the appeal on the ground of the
variance. WilHams, J. granted a mandamus to the sessions
to hear the appeal, saying : " The parties to the order and the
pauper are correctly described. Who could doubt that thi.H
is a valid order made by persons of competent authority 1
The case is different from questions of variance in setting
out an agreement or a deed in a declaration. It is a total
perversion of terms to consider this like a description in
pleading : it is nothing of the kind. The object of the
notice of appeal is to give the opposite party notice that the
appellants have been aggrieved by an order of removal, per-
fectly agreeing in description and other respects with the one
actually made. But the sessions have got into apices juris,
and nice questions of variance, instead of doing what would
be more consonant with the justice of the case." These
remarks were subsequently characterised by Lord Denman
as ^^ sound se)ise :" R. v. Oxfordshire JJ., 4 Q. B. 177 — 181 ;
see also R. v. Carmarthenshire, 4 B. & Ad. 563, where the
variance (held immaterial) was in describing parish officers
as of a parish instead of a hamlet in the parish : such a
notice could not mislead.

The omission of the names of the justices who had made
the order was held immaterial. The grievance was the
order : R. v. West Houghton, 5 Q. B. 300 ; R. v. Middlesex
JJ., 15 L. J. M. C. 101 ; 2 N. S. C. 341 ; R. v. Liv-^rpool
{Recorder), 15 Q. B. 1070.

The Act 12 & 13 Vict. c. 45 (commonly known as Baines"
" Baines' Act "), was passed to provide for the uniformity of Act.
practice at quarter sessions in the giving of notices of
appeals in certain cases : —

The first sec. of the Act enacts : — " That in every case of Notice of
appeal (except as hereinafter mentioned) to any court of '^t^P®^^-
general or quarter sessions of the peace, fourteen clear days'
notice of appeal at least shall be given, and such shall be
sufficient notice, any Act or Acts or any rule or practice of
anv court or courts to the contrarv notw^ithstanding ; an(l
such notice of appeal shall be in writing, signed by the per-

122 APPEAL.

son or persons giving the same, or by his, her or their
attorney, on his, her or their behalf, and the grounds of
appeal shall be specified in every such notice : provided
always, that it shall not be lawful for the appellant or
appellants on the trial of any such appeal to go into or give
evidence of any other ground of appeal besides those set
forth in such notice."
Excep- Certain appeals are exempted, as mentioned in the second

tions to section : — " That none of the provisions hereinbefore con-
(sec 2) tained relating to notices of appeal shall be construed to
affect or alter the law as to notice of appeal against a sum-
mary conviction, or against an order of removal, or against
an order under any statute relating to pauper lunatics, or
against an order in bastardy, or against any proceedings
under or by virtue of any of the statutes relating to her
Majesty's revenue of excise or customs, stamps, taxes, or
post-office ; but the law with regard to notices of all such
appeals shall be deemed and taken to be the same as if the
provisions hereinbefore contained had not been enacted."

Notwithstanding the very clear object of the statute to
secure uniformity as to the time of giving notice of appeal
in all cases (other than those specified in the 2nd section),
and as to which Hannen, J., remarked, " no more appropriate
language could be used," some text-books have continued to
note the more limited time of ien days under the Highway Act,
5 <fe 6 Will. 4, c. 50, s. 88, as being the time for giving notice of
appeal under that Act, and for which the authority quoted is
7.'. V. Zan- ^> y Lancashire J J., 27 L. J. M. C. 161 : reported in 22 W. R.
76 (Q. B.) as Swift v. Lancashire J J. The ten days' notice
{.tciftv. j^^^^ ^ggj^ given in that case, but the decision was upon
,/,/,.g \ another point, and no objection was raised on the want of
/?v Mcmle Proper notice. In E. v. Maule, 41 L. J. M. C. 47, however,
it was held that the Highways Act, 5 & 6 Will. 4, c. 50, s.
88, was governed by Baines' Act {a) (notwithstanding that
sec. was recognised and continued hy 25 & 26 Vict. c. 61, s.
44), and that it ivas requisite to give the 14 days' notice of
appeal in all cases where the appeal was not within the ex-
ceptions in Baines' Act, s. 2 (6). See also R. v. Surrey JJ.,

(a) The Reporter in the L. J. Highways, p. 122.
explains that the case was re- (J) In cases of appeal under

ported in consequence of text the Sum. Juris. Act, 1879, 15

writers continuing to erroneously days' notice of appeal is required,

state that ten days' notice is suf- But Baines' Act does not apply

ficient ; see the later eds. of to appeals on convictions as er-

Leeming and Cross, Quarter Ses- roneously assumed in B. v. Salop,

sions, p. 402 ; and Baker on 50 L. J. M. C. 72.

THE NOTICE OF APPEAL. 123

39 L. J. M. C. 49 ; L. R. 5 Q. B. 87, to which Haniien, J.
referred as confirming their judgment in B. v. Maule. The
only question in R. v. Lancashire or Swift v. Lancashire was
whether the notice of appeal had been rightly served as for
the divisional adjourned sessions at which the appeal would
be heard, or should have been served in reference to the
first dav of the original sessions. And the only point decided
was (following R. v. Sussex JJ., 34 L. J. M. C. 69 ; 13 W. R.
471 ; 4 B. & S. 966) that the notice must be given in
reference to the original sessions (in the words of the judg-
ment in R. V. Sussex, and repeated by Blackburn, J.), " in
order that the appeal might be properly commenced," and
that when so begun the appeal would l3e governed by the
rules of practice of the particular court. The ten days'
notice had alone been given, but no objection was taken on
that account on the point raised.

Some notices may be sent by post as under 14 & 15 Vict Notice by
c. 105, s. 10, relating to orders of removal ; the service then Po^t.
is made on the day which, in the ordinary course of post, the
letter would be delivered. R. v. Richmond, 27 L. J. M. C.
197; E. B. & E. 253; R. v. Slawstone, 18 Q. B. 388; 21
L. J. M. C. 145. Delivery through the post on a Sunday, if
there should not be fourteen days at least without it, that
day will be counted as a dies non, and the notice bad. Ex
parte Ashford, 16 J. P. 759 : see Asprell v. Lancashire J J.,
16 Q. B. 1067 ; in R. v. Middlesex J J., 2 Dowl. N. S. 719 ;
7 Jur. 396. Williams, J., held Sunday to be included \vith Time for
some doubt : in that case the full time was six days. In R. v. gi^i^g
Middlesex JJ., 5 Dowl. k L. 580 ; 3 N. S. C. 152, the appeal g^Jld^^^'"''
was under the bastardy law, and the order was made on counted.
Saturday at five p.m.; notice of appeal given at ten o'clock on
Monday morning, was held to be within the twenty-four
hours, Sunday not being reckoned in the time allowed.

In Ex parte Simkiii, 29 L\ J. M. C. 23 ; 2 E. & E. 392,
under sec. 40 of 18 <k 19 Vict. c. 121 (the Nuisance Removal
Act, 1854), fourteen days are allowed for giving the notice
of appeal, and the appellant "shall within two days of such
notice enter into a recognizance," &c. It was held that
Sunday was to be counted in the two days ; time was then
under his control. See also Peacock v. The Queen, 4 C. B. R.
N. S. 264; 27 L. J. C. P. 224; Rowbeny v. Morgan, 9 Ex.
R. 730; 23 L. J. Ex. 191.

Since the Judicature Act, 1875, where the time allowed
for appealing in cases in the High Court is less than six
days, Sunday, Christmas Day, and Good Friday are not

G 2

124 APPEAL.

reckoned in the computation of time : Order LVII., Rule 2 ;

4 Cb. D. Ex pa7'te Vinei/, in re Gilbert^ C. A. And where the

794, 46 time expires on a Sunday, or other day on which the offices

g^ ' ■ are closed, and by reason thereof proceediugs cannot be done

on those days, so far as regards the doing the same, they

shall be done on the day the offices shall next be open :

Order LVII., Rule 3; Taj/Ior v. Jones, 45 L. J. C. P. 110 ;

1 0. P. D. 87. These rules may have some influence in Jibing

Sunday, generally, as a dies non.

On pauper It has been held that under the Poor Law Act, 11 & 12

reuiova , yjct. c. 31, s. 9, appellants have not the twenty-one days

DOW Cl3,VS > ' L L J %f

for notice P^^^ fourteen, after the delivery of the depositions for

of appeal exercising their right of appeal where the sessions com-

calculated. mence within thirty-five days after the service of the order

of removal. Before entering and respiting the appeal

under this statute, the sessions will consider (as they should

in all other cases) whether there has been unreasonable delay

by the appellant, R. v. Sussex, 34 L. J. M. C. 69 ; 4 B. tfe S.

966, overruling on this point Ji. v. Suffolk JJ., 4 Ad & E.

319, and cases founded on it ; see also H. v. Yorkshire W. R.

{Broomsgrove v. Halifax), 27 L. J. M. C. 269 ; R. v. Sussex

30 L. J. M. C. 73.

JR. V. The R. v. Svffolk, 4 A. & E. 319, held that under

Ta'^&E ^^^ ^^^^^' ^' ^' ^^' ^^' '^^' ^^' *^® ^^^ practice with regard
319. *^ gi"^ii^g notice of appeal was not altered. The quarter

sessions were holden in four divisions in the county. Appeals
were heard in the division only in which the cause of appeal
arose. The decision in that case turned on a question of
time. The appellant was allowed the full time of thirty-
five days, under the Poor Law Acts, for giving his notice
of appeal.
11 & 12 It was that point that R. v. Sussex, 4 B. & S. 966, ovcr-

Vict. c. 76, ruled R. y. Suffolk, the 4 & 5 Will. 4, c. 76, being supple-
mented by 11 tfe 12 Vict. c. 31, s. 9, fixing the maximum of
delay to twenty- one days after the service of the notice of
chargeability with statement of the grounds of removal, after
which the appeal was barred. The 11 & 12 Vict. c. 31, was
passed to remedy the decision in R. v. Suffolk, 4 A. & E.
319 ; and R. v. Cornwall, 6 A. & E. 894.
Various Various expressions are used in the statutes directing the

expressions time for the giving notices of appeal. " Immediately,'^
of time for means with promptness, and, like " forthwith," without any
appealing, ^j^reasonable delay. R. v. Huntingdonshire J J., 5 D. & Ry.
588; R. V. Aston, 4 N. S. C. 283 ; 19 L. J. M. C. 236 ;
R. V. Worcestershire JJ., 7 Dowl. 789. See also Ca. temp.

THE NOTICE OF APPEAL. 125

Hard. 113; 8 M. & W. 287; Spenchley v. Robinson, 3 B. &C.
658. Coleridge, J., said that the words " shall forthwith give
a second notice," must mean without such delay as cannot
be satisfiictorily accounted for : Ex parte Lowe, 2 N. S. C.
331 ; 3 D. & L. 737. See jR. v. Cheshire JJ., 11 Jur. 170 ;
see also H. v. Milcerton, Lord of the Hundred, 3 A. & E. 284 ;
Hancock v. Somes, 1 E. & E. 795 ; 28 L. J. M. C. 196, re-
flecting on R. V. Robinson, 12 A. & E. 672. See also R. v.
Berkshire, 4 Q. B. D. 469 ; ante, p. 45.

''Ten days," means one day inclusive and one day exclu-
sive: R. V. Yorkshire J J., W. R., 4 B. & Ad. 685 ; R. v.
Goodenough, 2 A. & E. 463 ; S. C eo nom. ; R. v. Cnniber-
land, 4 Nev. & Man. 378 ; R. v. Shropshire, Tlbberton v.
Newport, 8 A. & E. 173 ; Young v. Higgon, 6 M. & W. 49 ;
Hardi^ v. Ryle, 9 B. & C. 603 ; Pellew v. Hundred of Won-
/ord,'9 B. &C. 134.

*'Ten clear days," means ten perfect intervening days
between the act done and the jfirst day of the original ses-
sions : R. V. Herefordshire JJ., 3 B. & A. 581 ; Roberts v.
Stojcey, 13 Ea. 21 ; and cases, supra, under "Ten days."

" Ten days at least," has a similar interpretation to " ten
clear days." See Zouch v. Empsey, 4 B. & Aid. 522 ; R. G.
H. T. 6 Will. 4. In re Prangley, 4 A. & E. 781. Thus if service
is on the 20th, and the hearing on the 30th, the proceeding
is without jurisdiction : Mitchell v. Foster, 12 A. & E. 472.

As to "within 21 days from," or "of," and "after the
expiration of 21 days next after," the time is to be reckoned
exclusively of the day of receipt of the notice, or of the first
day of sessions. See Williams v. Burgess, 12 A. & E. 635 ;
S. C. 9 Dowl. 544; Robinson v. Waddington, 13 Q. B. 753,
founded on Ex parte Falcon, 5 T. K. 283. The time will
date from that when the appeal should be entered : R. v.
Middlesex, 2 N. S. C. 73. And although the entry of the
appeal for convenience may be made on the first day of an
adjourned divisional sessions, still the notice must date as
from the first day of the original session from which the ad-
journment takes place. See Lord Blackburn's remarks in
Swift V. Lancashire, 22 W. R. 76 ; S. C. R. v. Lancashire, 34
L. T. 124.

The word "month" means a calendar month in all Acts "Month."
passed after Lord Brougham's Act, 13 & 14 Vict. c. 21, s. 4,
unless words are added showing that lunar months are in-
tended.

The courts will not hold too strictly to the limit of time, Limit of
but will consider the circumstances, and not force the ap' time apply-

126 - APPEAL.

iug to the pellant to appeal to a sessions which is not reasonably
next prac- practicable.

ticable ^^ instance of this kind occurred, as reported recently in

jsions. ^ ^ ^wrr^y jj,^ 50 L. J. M. CIO; 6 Q. B. D. 100.
i<'urr u 50 That case was on an appeal by Messrs. Smith k Sons, on
L. J. M. C. t^® rating of the railway-station bookstalls in their occupa-
10 ; 6 Q. tion. The appeal was made against a rate which had been
P>. D, 100. made on March 20th, and published on the next day, the
21st. On the 19th February the provisional list had been
made out under the Metropolis Valuation Act, 1869 (32 &
33 Vict. c. 67), in which the Messrs. Smith were rated for
their bookstalls. They received notice on February 2()th to
give notice of any objection before March 4th. Notice of
objection was duly given, and, on the hearing of this case
by the Assessment Committee, their objections were over-
ruled. The next quarter sessions after the making the rate
were to be held on the 6th April, so that the appellants had
only the day after the rate was published (a Sunday) to de-
termine on their appealing, and giving notice of appeal. Two
points were raised in argument, 1st, that the appeal should
have been entered and respited at the April sessions ;
or, 2nd, whether in addition to the actual number of days
fixed by the statute for the notices, the appellant, before
being driven to enter his appeal, might take a reasonable time
to consider whether such notices should be given. Manisty
and Bowen, JJ., held that the entry of the appeal was a
ceremony which might be omitted without infringing on the
Meaning of Act; and that the next sessions meant, the next sessions («)
"^^^ „ at which an effectual trial could be had, and for which
proper notices could be given. And they said they pre-
ferred the authorities which had so held to those which
implied the contrary, and referred to R. v. Kent, 8 B. & C.
639; and R. v. Devonshij-e, ib. 640. On the second point
they held that the appellant is, before he enters upon an
appeal, or gives his notices, to have some fair and reasonable
time to consider his position, and make up his mind whether
he shall take the first step towards appealing, and to con-
sider the grounds on which such appeal is to be heard, and
which are to bind him on the hearing. It was truly re-
marked that the authorities had in their power the means
of preventing all possible inconvenience in this respect by
taking care so to publish a rate as to enable all appellants

{a) See Sum. Juris. Act, 1879, sessions " means the "next^prac-
ggc. 32, in all cases the *' next ticable sessions."

THE NOTICE OF APPEAL. 127

to have breathing time to look about them, and to consider
and frame their grounds of appeal (a).

R. V. Surrey J J. (last referred to), followed previous deci- "Next
sions. In R. v. Dorsetshire, 15 East, 200, the overseers' ^^^^'j^'
accounts were not allowed until the last day, when an effec- practicable
tual notice of appeal to the then next sessions could be by act of
given ; the court considered the cas3 carried with it marks responJejit.
of design to defeat the appeal. In a similar case Lord Delay in
Ellenborouo;h said, " Way did the p.irish officers make their publishing
rate so close upon the time of the sessions 1 It appeared as
if they had done it with a view of ousting the parties of their
appeal." R. v. Sussex JJ., 15 East, 206. The court will
look to the delay on the part of the respondents in having
abridged the time for the appeal ; for where a delay has
been caused by one party the most favourable construction
will be adopted as it regards the others. R. v. Southampton
J J., 6 M. & S. 394. Under such circumstances the appel-
lant will not be called on to enter and respite the appeal
and incur a useless expense without conferring any benefit
on either party. R. v. iJssex, 1 B. & Aid. 210 ; jff. v. Kent JJ.^
8 B. <fe C. 639 n ; R. v. Herefordshire J J., 8 D. P. C. ^i^.

But the appellant must not by lying by deprive himself of Session^
the power of giving an effectual notice of appeal, or of send- must not be
ing grounds of appeal within due time, and thereby render T®" ®^^.
tlie sessions impracticable which would otherwise have been able by
practicable. R. v. Sussex JJ., 34 L. J. M. C. 69, 75 ; see act of
R. V. Yorkshire, W. R., JJ., E. B. & E. 713 ; 27 L. J. M. C. appellant.
269; R. V. Sevenoaks, 7 Q. B. R. 136; 14 L. J. M. C. 92;
R. V. Skircoat, 2 E. & E. 185 ; 28 L. J. M. C. 224.

At the same time that the time of holding the sessions Distance of
will be considered, so also the distance at which the sessions sessions
town is situate will be taken into consideration in allowing co^^jered
the parties a reasonable time to look around to see whether
they w^ill appeal or not. The sessions to be practicable or
reasonable for the appeal must be so for all purposes. See
R. V. Surrey JJ., 2 N. S. C. 155; R. v. Flintshire JJ.,
7 T. R. 200 ; R. v. Southampton JJ., 6 M. & S. 394 ; R. v.
Kent JJ., 8 B. & C. 639.

(a) The sessions are not bound able diligence the appellants

to receive and adjourn an appeal might bring on the appeal to be

at " the next sessions " if they heard, the sessions at which the

think the appellants had suffi- appeal might be so brought

cient time to come prepared to on are to be considered the

try it, and to give notice to the rext practicable sessions," TiOrd

respondents : R. v. York, JV. R. Campbell, C. J. : R. v. Peter-

JJ. 3 T. R. 150. " If by reason- lorough, 26 L. J. M. C. 153.

128 APPEAL.

i;:ise should When the sessions are practicable for the hearing the

be heard appeal, it should either be heard or be entered and respited

"^ ^^."^ at them. See The Liverpool Gas Co. v. Everton Overseers, 40

i.racticable. L. J. M. C. 104 ; L. R. 6 C. P. 414. But where, by the

shortness of the time to consider whether the appeal should

he made, the sessions are not reasonably practical, then the

])arties are not bound to go to the expense of entering the

appeal simply for the respite. See R. v. Surrey (supra),

p. 126.

Where no Where the statute points out no specified time for making

Kjecific the appeal, and the ease does not fall within the provisions

*'^® , . of Baines' Act, or under the " conditions and regulations "

i)V the ^i ^"® Summary Jurisdiction Act, 1879, the appeal must be

statute made within a reasonable time ; see B. v. Trafford, 15 Q. B.

within 200 ; and with a reasonable notice ; In re Blues, 5 E. & B.

ul'^ea/'' ^^^ ' ^^ ^- ^- ^- ^' ^^^- ^" *^^^ P^^"* ^" important con-

stiniction has been put on the Summary Jurisdiction Act in

Jt V. Salop, 50 L. J. 72 ; S. C. B. v. Shropshire, 6 Q. B. D.

669 (a) ; where it was held that where a statute gave only the

bare right of appeal, without providing any " conditions and

regulations " of procedure, the parties must, " by the force of

sec. 32, fall back upon " the " conditions and regulations "

in sec. 31 of the Summarv Jurisdiction Act, 1879. But in

that case, it is to be observed, no notice was taken by the

Bench, or by counsel in argument at the bar, of sec. 19 of

the Summary Jurisdiction Act, 1879, or of In re Blues, or

that sec. 32 only rendered sec. 31 (which excluded from its

operation *'past" Acts) applicable to a "past " Act at the

option of the appellant; see R. v. Montgomeryshire, 51

L. J. M. C. 95 ; see this case considered post under Tit.

" Summary Jurisdiction Acts."

For notice The appellant is not bound to lodge his appeal during the

of appeal current, or adjourned sessions. He is alone to look to the first

appellant ^^^ ^^ ^jj^ original sessions to see if the sessions be practic-

to fir^t day ^^^^ for his appeal : R. v. Surrey J J. 1 M. & S. 479. The

t)i original appeal 7nay, however, be entered and respited at an adjourned

Rssions. sessions, instead of the original sessions, where the practice

of the sessions permits it : A^ v. Sussex J J., 7 T. R. 107 ;

R. V. Sussex J J., 34 L. J. M. C. 69—75 ; 2 B. & S. 683.

In this latter case of R. v. Sussex (a case in error from the

Q. B.) the court did not deal with the question whether a

{a) It was assumed in It. v. to notice that that Act, by sec.
Snlo]} that Baines' Act would 2, did not apply to convictions,
have applied ; the Court omitting

THE NOTICE OF APPEAL. 129

sessions held in one division of a county by adjournment
could be treated under the practice of the sessions as an
original sessions ; nor did the court interfere with the rule
as laid down in E. v. JSussex, 7 T. R. 107, that the next
sessions after service of the order of removal (now the ser-
vice of the notice of chargeability), having jurisdiction over
an appeal against it, must be ascertained bi/ reference to the
date of the original sessions for the county, and not of any ad-
journment thereof. But the court held that when, for Rules of
practical convenience, the county is divided into distinct adjourned

divisions, and in each division a distinct court is held, so ^^^^'^"^
,, , . , ,1 . . . , . ,,..,, court to

that all the questions locally arismg withui each division by govern the
pr ictice belong to that division, and all the process for that heaiing the
division is returnable at the court for that division, and the appeal
panels of the jurors are made out for that division, and ^ "*
the rules of practice made by the court of each division for properly
the conduct of business in it, assume that the day when the cow-
court for that division begins its sittings is the first day of rnenced.
the session for that division, the Court of Appeal said, they
saw good reason for holding that the conduct of an appeal
suit which had been properly commenced (a), and which
belonged to one of those divisions, should be governed by the
rules of practice of that division, in the same manner as the
notices, summonses and proceedings, other than those
relating to appeals against orders of removal and poor rates,
are governed thereby.

In Swift V. Lancashire JJ., 22 W. ^. 76, Blackburn, J.,
remarked on R. v. Sussex, 34 L. J. M. C. 69 ; " Erie, C. J.,
in that case says 'that the notice must be given to the original
sessions in order that the appeal may be properly commenced^
but when properly commenced it is governed by the rules of
practice of the particular court ' ; this refers to notice of trial
ai)d the like ; but the notice of appeal the Legislature has
enacted must be to the original sessions." See also R. v.
Draughton referred to in 2 B. & S. 683.

In the subsequent case of R. v. Lancashire, 34 L. T. 124,
Cockburn, L. C. J., referring to the older case oi R. v. Sussex,
7 T. H. 107, followed by R. v. Lancashire, 27 L. J. M. C. 161 ;
30 L. T. 149 held (Mellor and Field, JJ., with him), that
tliose cases were neither expressly or virtually overruled by
the case in error, R. v. Sussex (sup.) ; and in his judgment he
adopted the language of Lord Campbell, L. C. J., in R, v.
Lancashire : — " We cannot take notice of the arrangements

(a) That is, by a due notice of appeal.

o 3

130

APPEAL.

When
verbal
notice of
appeal
required.

Keasonable
notice.

How
entitled.

Must state
or show
party
aggrieved.

Respon-
dent to be
fully _
described.

made in the county of Lancashire for the convenient ad-
ministration of justice at the quarter sessions (a) ; and we
can give no more etfect to the notice than if the sessions had
continued from the beginning, and until all the business of
the county had been finished."

When the statute annexes to the right of appeal certain
conditions precedent to be performed by the appellant they
must be strictly complied with, or the appellant will have
no lociLs standi to enter his appeal. R. v. Lincolnshire J J.,
3 B. & C. 548; K v. Bedfordshire J J., 11 A. & E. 134 ;
R. V. Cheshire, ib. 139 ; Ex p. Cmiis, {Curtis v. Buss.) p. 69.

Under the affiliation Acts a verbal notice of appeal is
sufficient if given within the twenty-four hours after the
adjudication. (See title " affiliatir.n "). But a written notice is
requisite in all cases within Baines' Act, 12 & 13 Vict. c. 45.
See B. V. Salop //., 4 B. & A. 626 (under the Bastardy
Act, 49 Geo. 3, c. 68, s. 5,) in which Bayley, J., remarked on
the convenience that a notice of appeal, particularly where
it is a notice of the cause and matter of the appeal, should
be in writing ; and added, that where the condition was
that the party appealing should give notice of his appeal
{simpliciter) it would be adding a further condition, to hold
such notice should be in writing.

Requiring the notice to be " reasonable," will refer only
to the time of serving the notice and not to the manner of
giving it. A*. V. Surrey JJ., 5 B. & A. 539 (under the Act
against gaming, 12 Geo. 2, c. 22). See In re Blues, su2yra.

The notice should be entitled in like manner as the order
to be appealed against. R. v. Suffolk J J., 1 B. & A. 640.

The appellant must specifically allege in his notice of
appeal that he is a person in fact aggrieved or injured by the
act of which he complains. R. v. Essex JJ., 5 B. & C.
431 ; or he must set out facts from which it clearly appears
that he is aggrieved personally, and not generally as one of the
public. R. V. Yorkshire, 7 B. <fe C. 678 ; R. v. Somerset, ib.
681, n. ; R. v. Yorkshire, 4 B. & Ad. 685 ; R. v. Bond, 6 A.
& E. 905; R. v. Blackawton, 10 B. & C. 792. See ante on
this point, p. 107.

The respondents should be properly described by names
and additions. Justices should be described as justices of a
county or borough, according to the fact. Parish officers
may be described as churchwardens and overseers of a

{a') The sessions in Lancashire
are held in several divisious by

adjournments from place to
place.

THE NOTICE OF APPEAL. 131

particular parish, &c., without naming them. Dick Q. S.
Ga3.

Railway companies may be served through their secretary
with notice addressed to the directors of the particular rail-
way. 8 & 9 Vict. c. 18, s. 68. Eastham v. Blackburn Rail-
waxj^ 9 Ex. 758.

The sessions may amend any variance between a notice of
appeal and orders appealed against. See R. v. Bingley, 4 B.
k Ad. 567 n ; R. v. Carmarthenshire JJ., id. 563.

Besides setting forth his grievance, if appealing as the Description
holder of any particular office, he should state in his notice of the
he is the holder of such office. See Talf. Dick. Q. S. 633. appellant.

Care should be taken to describe accurately the sessions Description
to which the appeal is to be made. But a misdescription of ^^ the
the session, if under all the circumstances the respondent ^^^^^^^^s-
could not . be misled, may be treated as surplusage. R. v. W^^'"^
Liverpool {Recorder), 15 Q. B. 1070 ; R. v. Buckinghamshire, 4 ™^'*^^^«'^P-
E .& B. 259 n. ; 24 L. J. M. C. 15 n. ; R. v. Leeds {Recorder), 30 not"'ioir-
L. J. M. C. 86 ; 3 E. & E. 561. In the case of R. v. Liverpool, leading,
the county justices having concurrent jurisdiction with the
borough J J. , there being no ne intromittent clause in the Liver-
pool charter, made an order of removal from a township within
the borough. Lord Campbell referred to 5 & 6 Will. 4, c.
76, s. 105, which gives the borough Quarter Sessions cog-
nizance of all matters cognizable by any Court of Quarter
Sessions in England; 13 & 14 Car. 2, c. 12, s. 2, and the
statute making the place of appeal to depend on the place
in which the justices acted, although the county justices
acted, the removal was from the borough, and the appeal to
the borough sessions.

Should, however, the appellants go to the wrong sessions,
acting on the wrong notice, they will be debarred from going
afterwards to the proper tribunal and treating the mention
of the wrong sessions as surplusage. R. v. Salop, 4 E. & B.
257 ; 24 L. J. M. C. 14. The notice should be abandoned.

The respondents are entitled to reasonable information Description
upon what the appellant intends to make his appeal. And of the
the information must be given so that he is not misled, ™atterfs
although the court will not construe such notice with all ^^^ ^*
the strictness as if deciding on matters of pleading.

So where three defendants were jointly summoned and
convicted in separate sums as to each, and three separate
convictions were to be returned to the sessions, there was
one joint notice of appeal as against " a conviction of us : "
this was sufficient. R. v. Oxfordshire, 4 Q. B. 177.

132 APPEAL.

So also where separate orders for the maintenance of twin
bastard children and only one notice of entering into the
recognizance, such notice was good although having refer-
ence to two orders. Ji. v. Leeds {Eeco7'der) ante, p. 45.

Where the order is otherwise properly described but
omittiug the names of the justices — an objection on this
ground cannot be upheld. B. v. West Houghton, 5 Q. B.
300. So where there was a discrepancy in the justices'
names, WilHams, J., said on the sessions entertaining the
objection, that they had got into apices juris and nice ques-
tions of variance instead of doing what would have been
more consonant with the justice of the case. E. v. Denbigh-
shire, 9 Dowl. P. C. 509.
Si'^nature Every notice, statement, demand, or other document
of a notice required to be given by guardians in respect of an order
by guar- of removal will be deemed to be sufficiently authenticated if

their dcrk ^^^^^^ ^Y *^®'^ ^^®^^ ^" *^^^^^ ^'^^^^ (^)' 28 & 29 Vict, ch.

' 79, s. 8 (the Union ChargeabiUty Act, 1865). This part of the

section gives statutable effect to B. v. Newport GuaixHans,

• 33 L. J. M. C. 155, decided on 4 & 5 Will. 4, c. 76, s. 81,

under which case the notice may be signed by any three or

more of the guardians; see R. v. St. Mary, Southampton;

R. V. Lambeth, 5 Q. B. 513 ; 14 L. J. M. C. 133.

r.v solici- Although a solicitor may sign a notice of appeal on an

for, order of removal on behalf of the overseers of the parish or

the guardians, yet it was held that when the notice is

accompanied with the grounds of appeal then the officers

themselves must sign ; R. v. Middlesex, 20 L. J. M. C. 42 ;

R. V. Suffolk, 4 A. & E. 319 ; R. v. Abergele, 5 A. & E. 795 ;

R. V. Lancashire, 11 A. & E. 1 44. But such notice since the

Union Chargeability Act, 1865, may be signed by the clerk

to the guardians.

Wlu^rc by Under the appellant's authority a solicitor's clerk may sign

the solici- a notice of appeal. R. v. Kent, L. R. 8 Q. B. 305 ; 42 L. J.

tor 8 clerk. ^^ ^ ^^2.

By a A trustee of a turnpike road may sign a notice of appeal

trustee. ^^ ^ party aggrieved. R. v. Surrey, 5 A. & E. 701 n.
Solicitor to The Solicitor to a corporation may sign a notice of appeal
a corpora- on the part of the corporation, although not appointed under
tio"- seal for that purpose. Faviell v. Eastern Counties Ry. Co.,

2 Ex. 844; 17 L. J. Ex. 223, 297.
A trustee. So may a trustee sign a notice of appeal on behalf of

himself or co-trustees (as tinder a turnpike trust), although

(a) See the same section for service of the grounds.

THE NOTICE OF APPEAL. 133

not personally aggrieved. Cortis v. The Kent Waterworks,
7 B. &C. 715.

Parish officers can only give a valid notice by the majority Parish
signing. II. v. Wanvickshire, 6 A. & E. 873; JR. v. i)^r6y- officers to
shire, ih. 885 ; R. v. Wymondliam, 6 T. R. 552. As to public ^^ajrity T
bodies acting by a majority, see Grindley v. Barker, 1 B. &
P. 236 ; Withnall v. Gartham, 6 T. R. 398 ; Attor7iey -General
V. Davy, 2 Atk. 212; R. v. Beeston, 3 T. R. 592. They
should sign in their public character, " as churchwardens and sign in
and overseers ;" see R. v. Colerne, 11 Q. B. 909 ; R. v. York- their public
shire W. R. JJ., 13 L. J. M. C. 39 ; S. C. eo nom.. Ex parte ''^''''^^'=-
Uamley, 1 D. & L. 673. And having so signed it lies on the
other side to shew that those giving the notice are not a
majority (per Williams, J.). R. v. Yorkshire W. i?., 3 D. &
L. 152.

Joint notices of appeal may be given. In R. v. White, 4 Joint
T. R. 771, there was a joint appeal by seven appellants "'^^^'^^'^ '^^
against a poor rate, and those cases were severally considered ^^^^'^ •
and decided upon. On the authority of that case it was held
in ^. V. Sussex JJ., 15 East 206, that several ratepayers
might jointly appeal against a rate as not being made in due
proportion with the rating of the appellants. So there may
be joint respondents as to any of whom the appeal may be
abandoned and the remainder proceeded with : R. v. Kent J J.,
L. R. 6 Q. B. 132 ; 40 L. J. M. C. 76 ; 19 W. R. 205. As
to a joint appeal on a conviction of three persons for an
offence of unlawfully fishing, where three separate records
of convictions were returned to the sessions, and the de-
fendants severally entered into their separate recogni-
zances, and the form of appeal was allowed ; see R. v.
Oxfordshire J J., 4 Q. B. 177. And see also Tit. Affiliation,
ante, p. 45, where one notice of appeal was allowed on two
separate orders made for the maintenance of twin bastard
children.

In some cases a personal service of notices of appeal on Service of
individual justices is necessary. As under the Highway "<'tice of
Acts the respondent justices must be personally served, or '?Pr^'^^ °"
the notice be left at their respective residences : ^. v.
Bedfordshire, 11 A. & E. 134 ; and under the Licensing Act,
1829, R. V. Cheshire, ih., 139, overruling R. v. Staffordshire,
4 A. & E. 842. So also where the justices form a court of
summary jurisdiction under " The Intoxicating Liquor
Acts " the members of the court must be personally served
it is not sufficient to leave the notice with the clerk to the
justices; Kx parte Curtis (S, C. Curtis v. Buss), 47 L. J. M.

134

APPEAL.

Service on
the clerk
to the
justices as
Court of
Summary
Jurisdic-
tion.

Death of
respon-
dent.

Service on
overseer
and jus-
tices.

Ground of
appeal to
be specified
under
Baines'
Act.

Where

Baines' Act

does not

apply,

particular

statute

governs

whether

grounds

requisite.

Specific ob-
jections to
overseers'
accounts.

C. 35 ; 3 Q. B. D. 13 ; 26 W. R. 210; see also R. v. SillU
fant, 4 A. & E. 354.

The same point would arise under the Highway and Loco-
motive Amendment Act, 1878 (c. 77), s. 37. So also under
the Public Heath Act, 1875, it will be otherwise should a
person convicted under these Acts elect to proceed under
the Summary Jurisdiction Act, 1879. Under the Factory
and Works Act, 1878, 41 & 42 Vict. c. IG ; the Weights and
Measures Act, 1878, 41 & 42 Vict. c. 49 ; the Summary
Jurisdiction Act, 1879, 42 & 43 Vict. c. 49, the notice of
appeal for the justices may be served on the clerk of the Court
of Summary Jurisdiction (see this subject discussed under
Tit. " Summary Jurisdiction Acts ").

Under the Excise Acts a service of notice of appeal on the
clerk to the justices in their presence was held good service
on the justices themselves, 7 <fe 8 Geo. 4, c. 53, ss. 61, 83 ;
but a service of the notice on a clerk at the Office of Excise
is not a good service on a respondent under 4 Vict. c. 20,
s. 30, requiring the notice to be given to, or left at the place
of abode of, the respondent seven days before the hearing
of the appeal. E. v. Eaves, 39 L. J. M. C. 70.

The death of the respondent excuses service. R. v. Lei-
cestershire J J., 15 Q. B. 88. See Tit. " Affiliation."

Service on one overseer is sufficient, R. v. Warwickshire, 6
A & E. 873, as they act conjointly ; but it is otherwise with
justices, as each might be individually liable to an action.
R. V. Bedfordshire, 11 A. & E. 134, 138.

In all cases under Baines' Act (12 & 13 Vict. c. 45, s. 1),
and not excluded by sec. 2, all notices of appeal must
specify the grounds of appeal, and the evidence on the
hearing of the appeal will be confined to such grounds.
See, however, as to the power of amendment, infra, p.
149.

In the cases not within that Act (see sec. 2) the notice of
appeal need not set out any groTuids of appeal unless so
required by the particular statute under which the appeal
is made. R. v. Westmoreland J J., 10 B. & C. 226 : R. v.
Derby {Recorder), 20 L. J. M. C. 44. See as to Appeals
on Convictions, sees. 31, 32 ; the Summary Jurisdiction
Act, 1869, and observations in R. v. Scdop, (infra).

It is not sufficient to object to specific items in overseers'
accounts without stating the ground of such objections.
R. V. Sheard, 2 B. & C. 856. And where the ground is that
other persons are not rated in due proportion with the
a,ppellant, such persons must be served with notice of

THE NOTICE OF APPEAL. . 135

appeal as well as the parish officers. R. v. Eyre, 7 Q. B.
619; 26 L.J. M. C. 14.

Bailies' Act, 12 &, 13 Vict. c. 45, was passed to create Baines'Act
uniformity in practice (see ante, p. 120), and unless the ^-s to
appeal comes within the exceptions specified in the 2nd 8'"°^"^J ^ ^
section of that Act, namely, as to a summary conviction,
order of removal, or an order relating to a pauper lunatic,
order in bastardy, or proceedings relating to H.M.'s re-
venue of excise, customs, stamps, taxes, or post-office ; not
only is the notice of appeal to be in writing, and signed
by the persons giving the same, or their solicitor, hut the
grounds of appeal shall he specified in such notice, and the
parties on the trial of the appeal will not be allowed to go
into any other ground of appeal {a).

In some cases, as an appeal against an order in bastardy, in bastardy
no grounds of appeal are required, there are

In the removal of paupers under the poor laws the grounds ^^ gi'ounds
of appeal are independent of the notice of appeal. But in ^^^
every case where a notice of appeal has been given, the ^-^^^1'^^^ ^f
overseers or guardians of the appellant's parish (any three or notice of
more of such guardians), shall, with such notice, or fourteen appeal dis-
days at least before the first day of the sessions at which such ti°ct as to
appeal is intended to be tried, send or deliver to the overseers ^®^'^'^"^^-
of the respondent parish their grounds of appeal

The statement of the grounds of appeal if from the Signature
overseers of the parish, could only be signed by them and of grounds
not by solicitor on their behalf. H. v. Worcester (^e- ^"^ "°*^^^-
corder), 5 Q. B. 508. But under the Union chargeability
Act, 1865 (28 & 29 Vict. c. 79), s. 4, the signature of the
clerk to the guardians in their name will be sufficient ; and
any other document so signed on their behalf, or addressed,
or delivered to the clerk personally, or left at his office or
sent through the post addressed to him at such office will
be sufficient. See R. v. Lambeth, 5 Q. B. 513; 14 L. J.
M. C. 133.

The time before which the grounds of appeal are to be Service of
served, is the fourteen days prior to the hearing of the appeal ; grounds of
and that time will be regulated according to the practice of appeal,
the sessions, some appeals being heard at the divisional ad-
journed sessions ; and in this is the distinction as to giving
the notice of appeal the time for which must be calculated as

ia) The Summary Jurisdiction a court of summary jurisdiction ;
Act, 1879, is applicable in re- but not to appeals. See sec. 53.
venue and post office cases before

136

APPEAL.

Grounds of
appeal
should be
clear and
concise.

"Where un-
intentional
mistake
wliich
cannot
mislead.

Grround

may be

good

without

absolute

precision.

Ground of
ajjpcal
not to
be am-
biguous.

Knowledge
of respon-
dents may
cure in-
suincient
statement.

Particular
o! jection
by statute

from the first day of the original sessions. See R. v. Sussex
JJ., 34 L. J. M. C. 69, 75.

E. V. Lancashire JJ., 27 L. J. M. C. 161 ; 30 L. T. 149;
see Blackburn, J., remarks in Swift v. Lancashire JJ.^ 22
W. R. 76, ante, p. 129.

As to appeals under the Summary Jurisdiction Act (see
that title). So also with the other excepted matters from
Baines' Act. See the respective titles in sec. 2.

The statement in the grounds of appeal should be a clear
and concise statement of the particular objections to the
validity of the order or conviction appealed on either in fact
or law. The setting out of matters of evidence should be
avoided. Sufficient should be set out as will give the
opposite party reasonable means for inquiry into the matters
to be raised in issue. See R. v. Derbyshire J J., 6 A. & E.
893 ; R. V. Hiwth Bovey, 2 Q. B. 504.

An unintentional mistake by which the other side
cannot be misled will not prejudice the appellants. R, v.
Aston nigh Birmingham, 12 Q. B. 26.

The grounds of appeal may be good although absolute
precision is not arrived at. Stating that a birth took place
*' in the parish of P., in or about 1810" is sufficient, as the
parish registers could be searched for two or three years
before or after that date. R. v. Ealing, 12 Q. B. 178 n.
Stating the birth to have happened in a town consisting of
several parishes is not sufficiently precise. R. v. St. Mary,
Beverley, 1 B & Ad. 201.

Under the old repealed Bastardy Act 49 Geo. 3, c. ^S, the
grouTid of appeal was " against an order of affiliation whereby
A. B. was adjudged the father of a bastard child born of, &c.,
and chargeable to, &c. " ; this was insufficient as not specifying
whether the objection was to the parentage or chargeability.
R. V. Oxfordshire J J., 1 B. <fe C. 279.

Objecting to overseers' accounts by stating the objection
to be to thirty-five items without specifying which : held
insufficient. R. v. Sheard, 2 B. & C. 856.

The question in all these cases is the materiality of the
defective statement to the question in issue, and in this may
be considered the knowledge of the respondents of the
particular circumstance insufficiently stated. The appellants
should, however, give as much information as they may
possess showing good faith on their part. Per Coleridge, J.,
in R. V. Carnarvonshire J J., 2 Q. B. 329.

When the ''ground" is that the provisions of a statute
have not been complied with the particular provisions should

THE NOTICE OF APPEAL. 137

be pointed out which are intended to be relied on. R. v. *^ .^
Whitley, 11 A. & E. 90; and see per Coleridge J. S. C. l^^
p. 98.

A general ground of objection, that an order, or convic- Greneral
tion, (fee, is bad on the face of it, without going into particu- ot)jection
lars, will let in any objections to defects in such order. R. go^Jiction
V. Middleton-in-Teesdale, 10 A. & E. 688; R. v. Flockton, 2
Q. B. 535; R. v. Witham, 12 Q. B. 88.

The specifying particular objections will limit the appellant Limit by
to those only. R. v. Stapleton Fitzpaine, 2 Q. B. 488 ; R. v. specific
Birmingliam, 8 Q. B. 410. So where there is a general °^j^^*'''°-
traverse of the facts in an order without denying any
particular fact the like rule applies. R. v. St. Pancras, 12
Q. B. 31 ; see R. v. Widecomhe-iii-theMoor, 9 Q. B. 894. In
this latter case a ground of appeal was that the pauper was
not settled in the appellant parish ^Hn any manner ivhatever.^^
Under this ground the appellants could show the pauper was
not born in their parish.

Statements in the order which are not traversed either Admission
specificallv, or as coming within a general traverse, will be ^vhere no
taken as admitted ; see R. v. Hockworthy, 7 A. & E. 492 ; *^^erse.
R. V. ,.S7. John, Margate, 1 Q. B. 252.

The sufficiency of the grounds of appeal is for the sessions Sufficiency

alone to judge. R. v. Kesteven, 3 Q. B. 810; Baines' Act, of grounds

12 & 13 Vict. c. 45, s. 9. The decision of the court of °^^P!^^^l

, . . ii 1 • p 1 Question tor

general or quart(ir sessions upon the hearmg oi any appeal sessions

as to the sufficiency of the statement of any ground or

grounds of appeal, and as to the amending or refusing to

amend any order or judgment of a justice or justices appealed

against, or the statement of any ground or grounds of appeal,

and as to the substitution of any new recognizance or

recognizances shall be final, and shall not be liable to be

reviewed m any court by means of a writ of certiorari (a)

or mandamiis, or otherwise.

When the appeal is against a poor rate and no sufficient
grounds of appeal have been given ; see inf. p. 145, R. v. Eyre,
and other cases there referred to on the entry and respite
of the appeal, and the power of giving fresh grounds is
discussed.

But where a notice of appeal has been given, it would be Fresli
in the discretion of the sessions to allow an adjournment of g'^'^""*^^ ^^
the appeal that the appellant might serve fresh or amended ^PP^^^ -^

(rt) Under the Sum. Juris. Act, 1879, s. 40, no certiorari is now re-
quired should " a case " be stated.

138^

APPEAL.

leave of grounds of appeal : on the sessions refusing such adjourn-
Sessions. ment, the court would not interfere. R. v. ^Staffordshire J J.
2 Dowl. N. S. 353 ; 11 L. J. M. C. 9.

County
quarter
sessions no
concurrent
jurisdic-
tion with
borougli
quarter
sessions.

As to

lunatic

paupers.

Where
pauper in a
county
asylum.

The court
for appeal
in regard to

TJie Court to which appeal to he made.

The court to which the appeal must be made is the one
having jurisdiction over the locality in which the order
appealed against has been adjudicated upon ; from the
orders or convictions of county justices, to the county ses-
sions, and from those of borough magistrates to the recorder
of the borough.

The county justices have no concurrent jusrisdiction to
hear an apueal arising in a borough having a separate court
of quarter sessions excepting in alehouse licensing appeals ;
and in which the county sessions have entire jurisdiction.
In 8 & 9 Will. 3, c. 30, s. Q, f) k Q Will. 4, c. 76, s. 105,
R. V. Suffolk, Shropshire, and Lancashire, 2 Q. B. S5 ; R.
V. Liverpool (Recorder), 15 Q. B. 1070; ^. v. St. Edmunds,
Salisbury, 2 Q. B. 72 ; R. v. Deane, 2 Q. B. 96 : R. v.
Cockbum (Recorder), 4 E. & B. 265. See ante, p. 12.

Under 30 & 31 Vict. c. 106, s. 27 (The Poor Law Amend-
ment Act, 1867), the appellate jurisdiction from an order of
removal is dependent upon the jurisdiction of the justices by
whom tlie order was made, and not upon the place from
which the removal was ordered. Dudley Union v. Wolver-
hampton Union, 25 L. T. 829 ; S. C. eo nom. R. v. Stafford-
shire, L. R. 7 Q. B. 288 ; 41 L. J. M. C. 78 ; 25 L. T. 329 ;
20 W. R. 366. See ante, p. 130, R. v. Liverpool (Recorder).

Orders in reference to lunatic paupers (for maintenance or
otherwise) are to be made by two justices of the county,
when the pauper has been removed from a borough to the
county asylum, but the guardians, &c., may appeal against
the order in like manner as if the same were a warrant of
removal (a). See 16 & 17 Vict. c. 97, ss. 1, 108.

The appeal may be to the borough sessions. R. v. Lan-
cashir-e J J., 18 Q. B. 361 ; overruling R. v. Lancashire, 12
Q. B. 305.

A lunatic pauper was sent from the Medway Union to the
Barming Heath County Asylum, which is situate wholly
within the borough of Maidstone, where there is a recorder

(ff) Orders forthe maintenance
of lunatics are indirectly orders
for their removal : R. v. Glamor-

gansMre, 13 Q. B. 561 ; R. v. St.
Peter's, Ilumber, 17 Q. B. 630.

THE COURT TO WHICH APPEAL TO BE MADE. 139

and a separate court of quarter sessions. The Medvvay a lunatic
Union consists of several parishes ; some wholly in the city pauper in
of Rochester, with a separate court of quarter sessions ; some ^" asyhim.
partly in Rochester and in the county of Kent ; others
wholly in the county.

An appeal was made on an order adjudging the pauper's
settlement to be in the parish of Aldershot.

The appeal was made to the sessions for Kent, but that
court declined to hear the appeal on the ground that it
should have been sent to the recorder of the borough of
Maidstone, in which borough the asylum was situate.

The appeal was under sec. 108 of 16 & 17 Vict. c. 97.

If the union extended into two several jurisdictions, then
the persons appealing might not know to what sessions to
appeal ; the appeal, therefore, in that case is to depend on
the place in which the asylum is situate ; but the word
"jurisdiction ' in this part of the section must be taken
with the previous part ; and it clearly means " county."

Blackburn, J., had previously remarked: — "Is not the
whole of the union in the county of Kenf?" The words
" in case such union extends into several jurisdictions,"
mean into several counties ; in that case, in order that there
may be no dispute to which sessions the appeal should be
made, it is to be to the sessions of the county or borough in
which the asylum is situate.

In R. V. Wanvickshire, 28 L. J. M. C. 249, it was urged in
argument by Bovill and Spooner, that the Municipal Cor-
poration Act, 5 &L Q Will. 4, c. 76, s. 105, giving the
recorder exclusive jurisdiction at his borough quarter ses-
sions to try all matters, and quoting R. v. Svffolk, R. v.
Shropshire, 2 Q. B. 85; 10 L. J. M. C. 138; and that the
order in question had been made by two of the borough
justices, under 16 & 17 Vict. c. 97, s. 97; and that it
was further argued that the two statutes should be read
together. On this Lord Campbell, C. J., remarked : — " The
second Act expressly points out the way in which the appeal
is to be heard — viz., by the cow?? ^y justices." And further :
— " If the parish is partly in one jurisdiction, and partly
in another, then the situation of the asylum shall determine
the tribunal for appeal, not *when the parish or union is
situate in two co-ordinate jurisdictions.' " And this view
met with the support of Blackburn, J., and Lush, J., in
R. v. Kent, L. R., 1 Q. B. 385 ; 35 L. J. M. C. 201.

Blackburn, J., said : — " I think the quarter sessions have
not decided according to the true meaning of sec. 108,

140

APPEAL.

The court
of appeal
under the
Highway

Acts.

The naming
a wrong
court may
amount to
surplusage.

which enacts, that ' if the guardians of any union or parish,
or the overseers of any parish feel aggrieved by any order
adjudging the settlement of any lunatic, they may appeal
against it to the general quarter sessions for the county in
behalf of which such order has been obtained, or in which
the union or parish obtaining such order is situate. ' " On
this part of the section the case of H. v. Warwickshire,
28 L. J. M. C. 249, decides that where the parish obtaining
the order is situate wholly in the borough which is within
one county, though the parish is in the borough, the
jurisdiction to hear the appeal is in the county sessions.

Then the section proceeds : — " Or in case such parish or
union extend into several jurisdictions, then to the sessions
of the county or borough in which the asylum is situated
— the words "several jurisdictions " being read as "several
such cow w^,y jurisdictions."

An appeal, under the Highway Acts, 1835, sec. 88, is to
be made to the Court of Quarter Sessions, hoi den for " the
limit " in which the highway in question may lie. See further
on this poir't, infra tit. " The Highway Acts."

Care should be taken to select the right court for which
the notice of appeal is given ; should a wrong court have
been named, and the parties appear at that court, the mis-
take will not be considered as surplusage but will be fatal to
the appeal. R. v. Salop J J, 4 E. & B. 257 ; 24 L. J.
M. C. 14. But in a case, where, on finding the mistake made
of naming the county instead of the borough sessions, the
appellants abandoned their appeal, it was held, by Crampton
ife Hill, JJ., on the authority of R. v. Liverpool Recorder, 15
Q. B. 1070 (a), that the Recorder of the borough had such a
jurisdiction over the appeal, that on the abandonment, he
could make an order giving the respondents costs. " The
appellants," said Hill, J., " gave a notice of appeal, which
they might have acted upon as a good notice to the borough
sessions." Notwithstanding the mistake the respondents
were entitled to suppose they might be called before the
right tribunal. R. v. Leeds {Recorder), 3 E. & E. 561 ; see
also R. V. Fadwick, 27 L. J. M. C. 113.

(a) See R. v. Liverpool tlie
County Just ices, haying cou current
jurisdiction to make an order for
the removal of a pauper within
the borough (there being no non-
intromittent clause in the borough
charter), made an order for the

removal of a pauper from within
the borough ; the appeal should
have been made to the Eecorder
of Liverpool, who had sole juris-
diction under .5 & 6 Will. 4, c. 76,
s. 105 (see this case ante, p. 131).

THE COURT TO WHICH APPEAL TO BE MADE. 141

When notice of appeal has been given, there is usually a Notice of
practice at the sessions for the appellant to give notice of tri^^l-
his intention to try the appeal at the then next sessions, and
which notice must be given within certain days of the
sessions. This practice at each sessions as to the number
of days allowed varies, and enqiaries should be made in each
case. Failing to comply with the rule may be fatal to the
appeal. See R. v. Salop, 2 B. & Aid. 269. Where the
appeal has been respited because of an equal division of the
court no fresh notice of trial need be given, R. v. Bucking-
hamshire, 6 D. &R. 142; nor if adjourned at the instance
of the respondents. R. v. Lindsey, 6 M. & S. 379.

Where the appellant is exonerated from serving the
notice in consequence of the death of the respondent, see R.
V. Leicestershire, 15 Q. B. 88; ante, p. 45.

Before the court enter and. respite an appeal the justices Entry of
should exercise their discretion in ascertaining whether or appeal at
not the sessions are the next practicable sessions. M. v. ".^^t P^^c-
Derhyshire, 35 J. P. 633. If by reasonable diligence the sessions
appellants could bring on the appeal to be heard the sessions
at which the appeal could be so brought on would be the
next practicable sessions, and at such session the appeal
should either be entered and reported or tried. See R. v.
Peterborough, 7 Ell. & Bl. 643 ; 26 L. J. M. C. 153 ; R. v.
Sevenoahs, 7 Q. B. 136 ; R. v. Devon, 8 B. & C. 640, n., and
as said by VVightman, J. in R. v. Surrey, 3 D. & L. 343,
the appellants are not bound to enter and respite an appeal
against an order of removal at the next sessions after service
of the order, unless these sessions are practicable for all
purposes. But the parties by lying by cannot make the
sessions impracticable, R. v. Sevenoahs, 7 Q. B. 136.

Should, however, the "next" sessions be so soon after the Reasonable
time of the order, or the making a rate to be appealed on as time al-
would give no reasonable time tor the consideration of the ^^^'^'^ f***'
propriety of giving the notice of appeal, or so soon after as l^Q^^^^ ^^
to render it impossible satisfactorily to try the appeal at
them, then the appeal need not be entered and respited at
such sessions. R. v. Yorkshire N. R. 3 T. R. 150 ; R. v.
Surrey, 2 N. S. C. 155 ; R. v. Kent, 8 B. & C. 639 ; see also
R. V. Surrey, 34 L. J. M. C. 69 ; R. v. Yorkshire, W. R. 27
L. J. M. C. 269 ; R. v. Surrey, 50 L. J. M. C. 72 ; Burns
Just. Poor (by Davis) p. 780.

Where, however, an appellant having failed to obtain The time
relief under the Union Assessment Act, 27 & 28 Vict, allowed
c. 39, s. 1, which provided for twenty-one days' notice to the ™«stuot be

142

APPEAL.

unreason-
able.

Entry not
to be m-iule
for the
mere pur-
pose of a
respite.

When
se^'sions
bound to
enter the
appeal.

The entry
must be
made
properly.

Give

sessions
seizin.

Not in

erroneous

names.

assessment committee of the intention to appeal ; the Re-
corder, considering that six days were not sufficient beyond
the twenty-one to enable the appellant to determine as to his
appealing — such six daj^s being the intervening days before
the sessions — allowed the appeal to be entered at the next
subsequent sessions, a prohibition was granted against such
entry. B. v. Everton, 40 L. J. M. C. 105 ; S. C. Liverpool
Gas Company v. Everton Overseers, L. R. 6 0. P. 414.

The entry^ of an appeal for the mere purpose of respiting
it has been considered as useless and creating unnecessary
expense ; when a reasonable time should be allowed for a
parish or party to consider whether to appeal or not ; this
has held in several cases from R. v. Surrey, 1 M. & S. 479, to
li. V. Surrey, 50 L. J. M. C. 10. And Lord Tenterden, C. J.,
spoke of such an entry as "a mere nothing." See i?. v.
Monmouthshire, 1 B. & Ad. 895.

When the appellant has complied with the statutable
conditions precedent the sessions have no power to refuse the
entry of the appeal by reason of a non-compliance with some
rule the sessions may have made inconsistent with the
statute, and imposing an additional condition on the appel-
lant. E. V. Pawlett, L. R. 8, Q. B. 491 ; 42 L. J. M. C. 157.
See also, Coleridge, J. R. v. Yorkshire, W. R. 2 Q. B. 705.

The sessions may, however, enforce a reasonable and distinct
rule ; as that the appeal shall be entered on the first dny of the
sessions, R. v. Wanvickshire, 6 Q. B. 750 ; or before 12 o'clock,
R. V. Derbyshire, 22 L. J. M. C. 31. (Crompton, J. p. 34.)

To give the sessions jurisdiction to entertain the appeal in
addition to the necessity of having complied with all the
conditions precedent, the appeal must be entered at the
proper sessions, to give the sessions a right to deal with it
by adjournment or otherwise. See R. v. Wiltshire, 14 East
353 ; (see also Puttison, J.'s remarks on that case in R. v.
Kimholton, 6 A. & E. 611.) R. \. Oxfordshire, 1 M. & S.
446 ; R. V. Lincolnshire, 3 B. & C. 548 ; R. v. Bond, 6 A. &
E. 905; R. v. Lancashire, 27 L. J. M. C. 161 (and authori-
ties previously quoted in reference to the giving the notice of
appeal as for the first day of the original sessions, proceeding
with the appeal at an adjourned or divisional court).

Care must be taken that the entry be correctly made in
the names of the parties to the appeal, or the sessions may
refuse to hear it, and the high court will not rule them to
do so by mandamus. R. v. Leicestershire, 3 N. S. C. 1 ; R.
V. Yorkshire W. R., 4 B. & Ad. 685 ; R. v. Oundle, 3 Q. B.
359 n. ; R. v. Oxfordshire, 1 M. & S. 446. But the court would

THE COURT TO WHICH APPEAL TO BE MADE. 143

interfere should the wrong entry have been procured by
fraud. R. v. Yorkshire, 5 Q. B. 1.

The Q. B. D. might authorise the erasure of a previous
entry, but the sessions could not. B. v. Yorkshire, W. B., 5
Q. B. 1.

Where the statute has limited the time for the entry of Entry of
the appeal such limitation must be observed. JR. v. Wiltshire, appeal

io c^ or;o within time

13 East3o3. .... , limited.

It may be necessary sometimes to enter an appeal on
an abandoned order where the parties removing do not ^^^^^
choose to pay the expenses of maintenance incurred abandoned,
previously to the supersedeas. But if they are willing to entry for
pay, it is in the discretion of the sessions to refuse to enter ^o^*^-
the appeal. See B. v. Norfolk, 5 B. & A. 484 ; R, v. York-
shire, W. R., 2 Q. B. 705. So the respondent may enter the
appeal to obtain his costs ; but such a course ought not to
be taken if they can be otherwise obtained. R. v. Townstal,
3 Q. B. 357 ; jK. V. Stayley, ib. 360. Where a sum for costs
is oflf'ered, but for an amount insufficient, the sessions should
enter the appeal, and exercise their discretion to ascertain the
proper cost to allow. R. v. Merionethshire, 6 Q. B. 163. And
see 11 & 12 Vict. c. 31, s. 8, as to orders of removal. R.
v. Yorkshire, W. R., 31 L. J. M. 0. 271. As to costs in a
highway appeal under 5 & 6 Will. 4, c. 50. See " Highways."

It is an incidental jurisdiction attached to the Court of The respite
Sessions the power of adjournment ; Kee7i v. R., 10 Q. B. oi" adjourn-
933; Camphell v. R., 11 Q. B. 799 ; Raivnsley v. Hutchinson, "^^nt inci-
L R. 6 Q. B. 305 ; 40 L. J. M. C. 97 ; but it should be the" juris°
exercised with great care, see R. v. Cambridge Union, 30 L. J. diction.
M. C. 137 (per Lord Denman, C. J., and Patteson, J.)

This general power may, however, be restricted, by the Power may
words of the Act under which the appeal is made ; as under be re-
the Licensing Act, 1829, 9 Geo. 4, c. 61, ss. 29—29 (repealed ^^^j^^ed by
as to renewals and transfers of licenses), and where it is ^ ^ ^ " ®-
enacted " the court at such sessions shall hear and determine
the matter of such appeal." See R. v. Bolton, 11 Q, B. 379.
So also where under 26 Geo. 2, c. 74,the table of fees for the
justices' clerks made at a sessions were to be approved " at
the next succeeding quarter sessions," there was no power to
adjourn. Bowman v. Blyth, '2Q L. J. M. C. 57 ; 7 E. & B.
26.

The adjourning the hearing is in general in the discretion In general
of the sessions. B. v. KimboUon, 6 A. & E. 603. (See B. v. adjoum-
Eyre,post.) discrJtV^^

Should the court think the parties have been misled by of the

sessions.

144 APPEAL.

grounds of appeal, the appeal should be respited. R. v.
Westmorland, 10 B. & C. 226.

Or should the court desire to consider what judgment to
pass on a person under recognizance to receive sentence,
Lord Denman, C. J., remarked, " Surely no better reason
could be given for an adjournment : " Keen^s case, Keen v. R.,
10 Q. B. 933. A contrary doctrine laid down in Dick, Q. S,
5th ed. 900, was not approved, and w^as said not to be sup-
ported by the authorities quoted.
R V Cam- "^^ ^' ^'' ^'^^ Cambridge Union, 30 L. J. M. C. 137, the
bridge appeal against an order on the settlement of a lunatic pauper
Union. had partly proceeded when the sessions (for reasons) ad-
journed the further hearing to the next sessions. It was
held they had that power, and were not estopped by the
words of sec. 108, 16 & 17 Vict. c. 97 : "And such sessions
upon the hearing of the said appeal shall have full power
finally to determine the matter." Crompton remarked in
the course of the ease : "It would have been the duty of the
sessions to adjourn upon good reason being shown at the
beginning of the hearing." And although their adjourning
the case during the hearing did not meet with the approval
of the court, yet they still held the sessions acted within
jurisdiction. See also R. v. Kendall, 1 E. & E. 492 ; 28 L.
J. M. C. 110. In that case, however, the counsel had only
just begun to state his case, which was very nearly the same
' as if the appeal had not begun. See R. v. Reading, Cas.
temp. Hard. 80.
Sessions to In K- V. Wilts, 8 B. & C. 380 ; 2 M. & R. 401, a rate was
receive dill published ou the 16th September (1827). The quarter
appeal ^ sessions were held on the 16th October. No notice of
!*," ^ o ' appeal was given before the Michaelmas sessions, but at that
38, s.'i, at sessions an appeal was entered and respited as "of course "
tl»e sessions according to the usual practice at the Wilts, sessions. At
next after ^\^q Epiphany sessions the justices refused to hear the appeal,
the pubh- j^^j,^ Tenterden, C. J., said : " I think the sound construction

p A 1 1 o 1 1 Or

the rate. of the 17 Geo. 2, c. 38, s. 4, is, that the justices are to receive
the appeal against a rate at the next sessions after publishing
the same, and that they are then to exercise a discretion
whether they will hear and determine it at that sessions or
respite it to the next. It is impossible to say that the
matter must at all events be determined at the first sessions.
The statute expressly mentions one case w^here the justices
are to adjourn the appeal, and that is where it shall appear
to them that reasonable notice has not been given ; but
other cases may occur w^here it may be fit to adjourn the

THE HEARING, 145

appeal, even though reasonable notice has been given, as in
the case of the unavoidable absence of a witness. The
appellant here acted on the faith of the practice of the
sessions, and ought not to be deprived of his right of appeal.
At the same time I think it would be more beneficial to the
public, and more consistent with the intention of the legisla-
ture, if the justices did not adjourn appeals against rates as
a matter of course. I think they should endeavour to induce
the parties to try their appeal at the next practicable sessions
after the publication of the rate." The sessions having re-
ceived the appeal and adjourned it, were bound to hear it.
See also R. v. Monmouthshire, 1 B. & Ad. 895 j R, v. Suffolk,
8 Dowl. 628.

Under 9 Geo. 1, c. 7, s. 8, as to appeals against orders of Wlien im-
removal, and 17 Geo. 2, c. 38, s. 4, as to appeals against pei'^tive on
poor rates and overseers' accounts, duly entered, but as to * sessions
which reasonable notice had not previously been given, with- ^jjg appeal
out impugning the general power of the session to adjourn a eitlier as to
case, the sessions have no discretion but to respite the appeal a ]^oor-law-
to the next quarter sessions to be there determined. Lord ^^^^ ^^ ^
Campbell said in R. v. Eyre, 6 Ell. & Bl. 997 ; 26 L. J. P^^^*"^*''^^-
M. C. 14, "It has long been settled that the enactments
in statute 9 Geo. 1, c. 7, s. 8, and 17 Geo. 2, c. 38, s. 4, are
obligatory ; and that where no notice at all has been given,
the sessions must adjourn the appeal. If this had been res
Integra, I should have hesitated before I so construed the
statute ; for I think it w^ould have been better if a discretion
had been intrusted to the sessions : but the contrary is now
settled." See R. v. Staffordshire (R. v. Shropshire), 7 East,
549 ; overruling R. v. Rucks, 3 East, 343.

Under s. 6 of 41 Geo. 3, c. 23, upon an appeal against a poor (See li. v.
rate on the ground of other persons being improperly rated, Broolce, ii
notice of appeal is required, not only to be given to the ^: * '
overseers and churchwardens as under sec. 4, " but also to
the other person or persons so interested or concerned in
the event of such appeal ; " and such other person or persona
shall, if they desire, be heard upon this appeal.

This statute 41 Geo. 3, c. 23, is to be read as incorpo-
rated with 17 Geo. 2, c. 38, s. 4; and as in R. v. Eyre, supra,
where the appeal was against a poor rate on the ground that
others were omitted or underrated (the He v. Mr. Eyre had
objected to the rating of 436 others), but no notice was
served on those persons, and it was there held, as above
noticed, the sessions were bound to respite the appeal.

In R. V. Lancashire, 8E. &B. 563, 566, Erie, J., remarked

H

146

APPEAL.

sessions
Itave no
option but
to respite
an appeal.

Not where

reasonable

notice, al-

tliough

grounds

defective.

that the court had, on several occasions, founded their deci-
sions as to the practice of respiting, on the inveterate con-
struction put upon the Removal and Poor Rate Acts, 9
Geo. 1, c. 7, s. 8, and 17 Geo. 2, c. 38, s. 4, and this remark
was referred to in R. v. Skircoat, 28 L. J. M. C. 224, where
the court endorse Lord Tenterden's observations, previously
quoted, saying, " We think the entering and respiting should
not be a mere matter of course, but in each case the court
should exercise its judgment whether justice requires that
the appeal should be adjourned," and Erie, J., remarked,
" we would strongly advise the sessions not to enter and
respite an appeal where there had been time to try."

The compulsory operation of 9 Geo. 1, c. 7, s. 8, in refer-
ence to orders of removal, and so also as to poor rate appeals
under 17 Geo. 2, c. 38, s. 6, will only apply to the proceed-
ings at the first sessions, and will not interfere with the
discretion of the justices at a subsequent session. R. v.
Monmouthshire, 3 Dowl. P. C. 306.

It will not apply if in the opinion of the sessions a reason-
able notice of appeal has been served, but the grounds of
appeal are defective : in such case the sessions are not bound
to adjourn the appeal, the Act not extending to grounds of
appeal. R. v. Kimholton, 6 A. & E. 603. The statute pro-
vides against the hearing the appeal '' unless reasonable
notice " be given. But what is reasonable notice is for the
sessions : and then, if they consider such notice has not been
given, they '^ shall" adjourn the appeal to the next sessions,
and are bound to do so. See R. v. Monmouthshire, sup. ; R. v.
JSi/re, infra. In R. v. Cheshire, 8 A. & E. 398, the grounds of
appeal had been served on the attorney instead of the over-
seers. It was held the sessions might in such case adjourn
the appeal for a proper service of the notice.

In a case decided on 9 Geo. 1, c. 7, s. 8, R. v. Yorkshire,
W. R., 3 T. R. 150, the sessions had refused to lodge an
appeal and respite the hearing to the next sessions, on the
ground as appears by the entry made : " Forasmuch as it
appears to this court, that there has been sufficient time
since the removal of the paupers for the appellants to give
notice and come prepared to try this appeal at this sessions,
and no cause shown why they did not proceed accordingly,
it is ordered that the motion for lodging the same, and respit-
ing the hearing to the next quarter sessions be rejected."
The court were of opinion the justices had not acted wrong,
for the motion was in effect to adjourn the appeal, and it
was the intention of the parties not to enter the appeal with-

THE HEARING. 147

out the adjournment. But this case was overruled by R. v.
Bucks JJ.^ 3 East, 343, where it was held that upon an
appeal lodged against an order of removal, and the sessions
were of opinion a reasonable notice had not been given to
the respondent parish, they could not dismiss the appeal on
the ground that notice might have been given in time, but
were hound, by the direction of the statute 9 Geo. 1, c. 7, s. 8,
to adjourn the appeal. In R. v. Shropshire (reported as R.
V. Staffordshire), 7 East, 549, Lord Ellenborough said : "i?. v.
Bucks had been well considered, and that the court were
satisfied that the statute was compidsory on the sessions iu
these cases, to receive and adjourn the appeal."

In the subsequent case of R. v. Eyre, 7 Ell. & B. 609;
26 L. J. M. C. 121, the Rev. Mr. Eyre had then given his
notice of appeal against his rating to the overseers of the
parish, and two others by name, and " to all others whom
it may or doth concern," he set out his grounds of appeal,
and then gave notice that he should not prosecute and try
the appeal at the next sessions, but only lodge and enter
the same, and petition for a respite to the next following
sessions ; and then the notice required the production of
certain documents at the trial. The respiting of the appeal
was opposed, and the sessions held that there was " a rea-
sonable " notice of appeal, and refused the adjournment.
In this the court held they were right, and that such refusal
was within the exercise of their discretion. See R. v. Mon-
moutlishire, 3 Dowl. P. C. 306.

The question is for the sessions, whether there is or is
not a reasonable notice; R, v. Buckinghamshire, 3 East, 342;
R. v. Strafford, 7 East, 549, overruling R. v. Yoi'kshire N. R.
3 T. R. 150.

This section does not say the appeal shall not be received, Appeal to
if no statement of the grounds of appeal have been given ; t>e received
it says the appeal shall not be heard. It was, therefore, ^'^^f^ "*^^
held, in R. v. Kimholton, 4 A. k E. 603, that the court
might, and it would seem ought, to have adjourned the
appeal to allow the appellants the opportunity to serve
grounds of appeal in time for the next sessions.

In R. V. Macclesfield, 13 Q. B. 885 ; 19 L. J. M. C. 38, Order

the grounds of appeal had not been served in time. The "coi^-

sessions confirmed the order, and made a special entry : — rmed, nut

r^ ./ Q]j merits.

" Order confirmed, not on the merits, no due notice having

been given." But the right of appeal was not thereby lost

on the actual removal ; it was an attempt to appeal, which

became abortive by reason of the grounds of appeal not

H 2

148

APPEAL.

In appeal
against an
order of
removal,
grounds of
appeal to
be stated ;
no hearing
without.

Respite on
account of
pressure of
business.

llight to
begin the
hearing.

Where

grounds

traversing

conditions

precedent.

having been served in time. The appellant had the right
to be heard. See R. v. Yorkshire W. R. 3 T. R. 776.

The 4 & 5 Will. 4, c. 76, s. 81, enacts that " in every case
where notice of appeal against such order shall be given, the
overseers or guardians of the pariah appealing ngainst such
order, or any three or more of such guardians, shall with
such notice, or fourteen days at least before the first day of
the sessions at which such appeal is intended to be tried,
send or deliver to the overseers of the raspondent parish a
statement in writing under their hands and the grounds of
such appeal ; and it shall not be lawful for the overseers of
such appellant parish to be heard in support of such appeal,
unless ^uch notice and statement shall have been so given
as aforesaid (a). On the adjournment the fresh grounds
must not change the character of the appeal, as was done in
R. V. Eyre, 26 L. J. M. C. 121.

So also where after the entry of the appeal the appeal is
respited on account of the pressure of business it would
appear that fresh grounds of appeal may be given if they do
not change the character of the appeal : R. v. Derbyshire
JJ., 6 A. & E. 612 (n. to R. v. Kimholton) ; S. P. R. v.
Kendal, 28 L. J. M. C. 110; not, however, where there has
been a hearing and the adjournment happens because the
court is evenly divided in opinion: R. v. Arlecdon, 11 A. &
E. 87.

Upon the hearing the appeal the counsel for the respondent
will begin where the appellants dispute any part of his case.
He may first call on the appellant to prove his notices, and
all conditions precedent necessary to give him a locus standi
to appeal and be heard. Should, however, the appellant
admit the respondent's case, but set up some new affirmative
answer — as a subsequent settlement — he will begin, and
support such new case.

In most instances the appellant will have traversed by his
grounds of appeal every step necessary as a condition prece-
dent for the respondent to have performed to give him a
locus standi to maintam his case. As in an appeal against
the stopping up a highway ; inasmuch as, since R. v. Harvey,
44 L. J. M. C. 1 ; 10 L. R. Q. B. 46 ; 31 L. T. 505, over-
ruling to that extent R. v. Worcestershire, 3 E. & B. 548 ; 23
L. J. M. C. 113, the certificate does not now set out any of

(ji) The clause then provides
that no evidence shall be given
except on points set forth in the

ground of removal, or of appeal
against the order of removad.

THE HEARING. 140

the preliminary matters anterior to the surveyor's request to
the justices to make their view, the grounds of appeal should
put the respondent to proof of each step required to be done
under sec. 84 of the Highway Act, 1835. And he would
also be put upon proof by specific objections of each step
disclosed on the certificate. And having proved them, he
would then have to support his case on the merits.

Where the appellant is required to enter into his recogni- The recog-
zance to prosecute an appeal and pay costs it becomes a nizauce.
condition precedent to the hearing of the appeal : R. v.
Oxfordshire JJ., 1 M. k S. 446 ; R. v. Lincolnshire J J., 3
B. k C. 548. It may be verbally acknowledged within the
time fixed by the statute for entering into it, and completed
afterwards : R. v. aS*^. Alhan's J J., 8 A. & E. 932 ; Chapman
V. Robinson, 28 L. J. M. C. 30 ; Stanhope v. Thorshy, 35
L. J. M. C. 182 (a). The recognizance Avill be entered on
the sessions roll; Hallv. Wingjleld, Hob. 195 ; and the Clerk
of the Peace should have it in court to be produced and
proved at the hearing.

Under Baines' Act (12 & 13 Vict. c. 45, s. 8), after recit- Amend-
ing that appellants are liable to be prevented from trying ment of re-
their appeals upon their merits in consequence of imperfec- cognizance.
tions in taking recognizances, it is enacted, "that when any
recognizance or recognizances, which shall have been entered
into within the time by law required before any justice or
justices for the purpose of complying with any such condition
of appeal, shall appear to the court before which such appeal
is brought to have been insufficiently entered into, or to be
otherwise defective or invalid, it shall be lawful for such
court, if it shall so think fit, to permit the substitution of a
new and sufficient recognisance, or new and sufficient recog-
nizances, to be entered into before such court in the place of
such insufficient, defective or invalid recognizance or recog- •

nizances, and for that purpose to allow such time, and make
such examination, and impose such terms as to payment of
costs to the respondent or respondents as to such court shall
appear just and reasonable, and such substituted recognizance
or recognizances shall be as valid and effectual to all intents
and purposes as if the same had been duly entered into at
any earlier time or times, as required by any statute or
statutes for that purpose."

Although the case may have been heard before the justices AdJiiioual

evidence

(a) In some instances money is deposited in lieu of the recog.
nizance.

150

APPEAL.

allowed,
except in
excise
cases.

Evidence
confined to
the grounds
stated.

Objection
on a con-
viction to
be taken
in limine.

Adjourn-
ment.

Amend-
ment of
grounds of
removal
or appeal.

below on evidence, there is no objection to the parties sup-
porting their cases by additional evidence, excepting in
appeals under the Excise Acts. See R. v. The Commissioners
of Excise, 3 M. <fe S. 133. See infra tit. "Excise," "Evi-
dence.''

But the appellant will be limited to the points raised by
the grounds of his appeal : R. v. Watford, 9 Q. B. 626.
This is so provided by most acts giving the right of appeal.
And see Baines' Act, ante ; and the powers of amending
grounds of removal and grounds of appeal : R. v. Llangenney,
32 L. J. M. C. 265. Some latitude is permitted in the
receipt of evidence if the grounds stated enable the party
to make sufficient inquiry into the merits. See note (a),
p. 151.

It will be the duty of the clerk to the convicting justices
to return the original conviction for enrolment at the
sessions, Ex parte Hay ward, 3 B. & S. 546, and the respon-
dent should ascertain that he has done so, or a subpoena duces
tecum should be served on the clerk to the justices by whom
it was made. The appellant's counsel should compare the
form of the conviction returned with that furnished to him to
ascertain if there be any variance, on which he may apply for
an adjournment : R. v. Allen, 15 East, 346. This objection
should be taken in limine, as after the hearing has partly
proceeded the adjournment would not be allowed except
under special circumstances : see R. v. The Cambridge Union,
1 B. & S. 61 ; R. V. Skircoat, 28 L. J. M. C. 224.

The court has in most cases a power of adjournment.
But there is no such power under an appeal against the
refusal to transfer or renew an alehouse licence. {Ante,
p. 69.)

So many poor-law appeals had been determined on purely
technical points, without arriving at a decision on the merits
of the case, that the legislature passed the 11 & 12 Vict. c.
31, which by sec. 4 recites, that the grounds of removal or
of appeal are required to be communicated, for the purpose
of enabling the party receiving them to enquire into the sub-
ject of such statement, and if need be to prepare for trial,
and enacts " that upon the hearing of any appeal against an
order of removal no objection whatever on account of any
defect in the form of setting forth any ground of removal or
of appeal in any such statement shall be allowed, and no
objection to the reception of legal evidence offered in support
of a ground of removal or appeal alleged to be set forth in
any such statement shall prevail, unless the court shall be of

THE HEARING. 151

opinion that such alleged ground is so imperfectly or incor-
rectly set forth as to be insufficient to enable the party
receiving the same to enquire into the subject of such state-
ment and to prepare for trial : provided always, that in all
cases where the court shall be of opinion that any such objec-
tion to such statement or to the reception of evidence ought
to prevail, it shall be lawful for such court, if it shall so
think fit, to cause any such statement of grounds of removal
)r appeal to be forthwith amended by some officer of the
court or otherwise, on such terms as to payment of costs to
the other party, or postponing the trial to another day in the
same sessions, or to the next subsequent sessions, or both
payment of costs and postponement, as to such court shall
appear just and reasonable " {a).

A similar clause was passed in Baines' Act, 12 <fe 13 Vict,
c. 45, s. 3, applying to "grounds of appeal." And 16 & 17
Vict. c. 97, s. 112, is a similar clause in reference to orders
on the settlement of lunatics.

In R V. Euyton of the Eleven Toims, 30 L. J. M. C. 229,
Hill, J., observed, on 11 & 12 Vict. c. 31, s. 4, that the most
ample powers were given to the sessions to allow an amend-
ment to the grounds of removal (and the same remarks would
equally apply to the amendment of grounds of appeal under
12 & 13 Vict. c. 45, Baines' Act, and 16 & 17 Vict. c. 97,
s. 112) for the purpose not only of fully meeting the justice of

(a) The recital in Baines' Act party receiving the same to en- Amend-

(12 & 13 Vict. c. 45) is to the quire into the subject of such ment of

effect that a statement of the statement, and to prepare for grounds of

grounds of appeal, when required trial : provided always, that in appeal,

by that or any other Act, is for all cases where the court shall be

the purpose of enabling the party of opinion that any objection to

receiving it to enquire into the any ground of appeal, or to the

subject of such statement, and to reception of evidence in support

prepare for trial ; and enacts, thereof, ought to prevail, it shall

" that upon the hearing of any be lawful for such court, if it

appeal to any court of general or shall think fit, to cause any such

quarter sessions of the peace, no ground of appeal to \>q forthwith

objection on account of any amended by some officer of the

defect in the form of setting court or otherwise, or such terms

forth any ground of appeal shall as to payment of costs to the

be allowed ; and no objection to other party, or postponing the

the reception of legal evidence trial to another day in the same

offered in support of any ground sessions, or to the next subsequent

of appeal shall prevail, unless sessions, or both payment of costs

the court shall be of opinion that and postponement as to such

such ground of appeal is so im- court shall appear just and

perfectly or incorrectly set forth reasonable."
as to be insufficient to enable the

152

APPEAL.

^

the case, but for securing a trial on the merits. Crompton, J.,
said he was disposed to take a very wide view of the statute,
and to hold it applicable in every case where an objection is
made that *'the grounds" are not sufficient to let in the
case of the party ; and said he would be sorry to put a
narrow construction on so useful an enactment.
New In a subsequent case, R. v. Llangenney, 32 L. J. M. C. 265,

grounds of the court held that the grounds of removal might be amended
removal. even to the setting up an entirely new ground of removal.
Cockburn, C. J., remarked in R. v. Ruyton, 30 L. J. M. C.
229, that had an objection been made to the sufficiency of
the grounds of appeal, the recorder would no doubt have
amended under 11 & 12 Vict. c. 45, s. 3; and the Chief
Justice in that case expressed his opinion to be that the
section only applied to a defective statement of grounds
intended to be raised, and not to statements of fresh grounds.
However, from those decisions it is clear that the sessions
may so amend by adding a new ground to either the grounds
of removal or appeal ; and when so amended the decision
will be final, and not subject to review, in accordance with
the following sec. 9 of 12 & 13 Vict. c. 45, enacting that —
" the decisions of the court of general or quarter sessions of
the peace upon the hearing of any appeal as to the sufficiency
of the statement of any ground or grounds of appeal, and as
to the amending or refusing to amend any order or judg-
ment of a justice or justices appealed against, or the state-
ment of any ground or grounds of appeal, and as to the
substitution of any new recognizance or recognizances as
aforesaid (sec. 8), shall be final, and shall not be liable to be
reviewed in any court by means of a writ of certiorari or
mandamus, or otherwise." See R. v. Kesteven, 3 Q. B.
810.

But as regards grounds of appeal which may be considered
frivolous and vexatious, by Baines' Act, 12 & 13 Vict. c. 45,
s, 4, it is enacted that, " if in any notice of appeal the
appellant or appellants shall have included any ground or
grounds of appeal which shall, in the opinion of the court
determining the appeal, be frivolous or vexatious, such
appellant or appellants shall be liable, if the court shall so
think fit, to pay the whole or any part of the costs incurred
by the respondent or respondents in disputing any such
ground or grounds of appeal, such costs to be recoverable in
the manner hereinafter directed (sec. 5) as to the other costs
incurred by reason of such appeal." Similar provisions are
contained in 4 & 5 Will. 4, c. 76, s. 83, and 11 k 12 Vict.

Frivolous
and vexa-
tious ap'
peals.

Costs.

THE HEARING. 153

c. 31, s. 5, with regard to appeals under the poor laws.
Under a general traverse the sessions will judge whether
anything has been done frivolously or vexatiously. See B.
Y.'St. Pancras, 12 Q. B. 31.

Under certain statutes the question of the sessions award- Costs of
ing the costs to the successful party is withdrawn from their appeal,
discretion, and they are bound to award them. This is the
case under the Highway Act, 1835, 5 & 6 Will. 4, c. 50, s. 90,
which * ' authorises and requires " the sessions to award " to
the party giving or receiving notice of appeal such costs as
he shall have incurred in prosecuting or resisting the appeal,
whether the same shall be tried or not." In R. v. Yorkshire
W. R, 38 L. J. M. C. 271, this section was held to be
imperative, and a mandamus to the sessions w^as granted
where they had refused the costs. See also the Act for the
Prevention of Cruelty to Animals {infra) ; but an appeal
against a conviction under that Act may be governed by
the conditions of the Summary Jurisdiction Act, 1879, should
the appellant elect to proceed by appeal under that Act, as
authorised by section 32.

As to costs on a frivolous appeal, see R. v. Over, 14 Q. B.
425 ; 19 L. J. M. C. 57 ; see also R. v. Stoke Bliss, 6 Q. B.
158 ; 13 L. J. M. C. 151 ; and infra, tit. " Costs."

Rules of sessions cannot be made so as to restrict the
power of the sessions to award full costs ; as w^here by a rule
the court could not award more than 405. The court should
exercise an independent discretion in each case ; R. \.
Glamorganshire, 19 L. J. M. C. 172; R. v. Nottingham, 1
N. S. C. 422; R. v. MerionetJishire, 6 Q. B. 163.

The respondent is entitled to costs if the appellant gives
notice of countermand, although there is a rule to the con-
trary. R. V. Montgomery, 19 L. J. 397.

If no order be made as to costs on giving judgment, a
subsequent sessions has no power to gi-ant them ; it would
be altering the judgment of a previous sessions. R, v.
Staffordshire, 26 L, J. M. C. 179 ; see infra, p. 154.

The sessions have no common law power to grant costs on
an appeal.

See further as to costs, supra tit. " Costs."

The sessions must either quash or confirm the order Judgment,
appealed against ; or affirm it as to some and quash it as to
others: R. v. Bond, 2 Show. 503; S. C. 2 Bott. 922; 2
Salk. 472, 475. The sessions cannot make an original
order, S. C. They may alter their own judgment during
the continuance of the same sessions, even after adjournment;

H 3

154

APPEAL.

A war J.

Chairman
no casting
vote.

Judgment
of the
court may
he altered
during the
s^siou ;
not other-
Tvise.

Decision on
facts final.

but a subsequent sessions cannot in any way deal with the
judgment.

When an appeal against a poor-rate has been referred to
arbitration, but the order of reference is silent as to costs,
neither the arbitrator or any subsequent court has any power
to award costs. Should the arbitrator award the costs,
he may be called upon by the High Court to amend
his award ; and the sessions will only have the ministerial
duty of entering the award as amended as the judgment of
the court. The 12 & 13 Vict. c. 45, s. 13, gave the sessions
no further authority. R. v. Middlesex JJ., L. R. 6 Q. B.
220; 40 L. J. M. C. 109; 24 L. T. 131 ; 19 W. R. 744; West
London Extension Ry. Go. v. The Fulham Union {Assessment
Committee), L. R. 5 Q. B. 361 ; 39 L. J. M. C. 149; 22 L. T. 523.

The chairman of the sessions has no casting vote ; inter
pares non est potestas: R. v. Fladbury, 10 A. & E. 706;
2 Nolan's Poor Law, 4 Ed. 546. And if evenly divided the
case must be adjourned until a sessions be found with a
majority deciding the appeal, see R. v. Belton, 11 Q. B. 379,
2 Nolan, supra. Or otherwise the judgment of the sessions
would be the judgment of the court appealed from ; ib. per
Lord Denman, C. J. It will be the duty of the clerk of the
peace to enter the adjournment : Keen v. R. 10 Q. B. 935.
If no adjournment be entered the Court of Queen's Bench
Division would grant a mandamus to enter continuances if
it appeared that no record of a judgment had been made,
2 Nolan, 546 ; R v. Leicestershire, 1 M. & S. 442 ; R. v.
Westmoreland, 2 Bott. (6th ed.) pi. 983.

Should a judgment have been entered, although on a wrong
casting up of the votes, the court will not interfere. The
mistake should have been rectified whilst the Court was
sitting. R. V. Leicestershire, 1 M. & S. 442 ; R. v. Monmouth-
shire, 4 B. & G. 844 ; R. v. Fladhury, 10 A. E. 706 ; and see
R. v. Middlesex, In re Slade, 2 Q. B. D. 516 ; 46 L. J. M. C.
225 ; 36 L. T. 402 ; 25 W. R. 610.

During the holding the same sessions the Court may alter
a judgment which they had given : St. Andrew's, Holhom, v.
St. Clements Danes, 2 Salk. 494, 606 ; R. v. Leicestershire, 1
M. & S. 442 ; R. v. Yorkshire W. R. 2 Q. B. 705. No sub-
sequent sessions can alter the judgment : R, v. Hedingham
Sihle, Burr. S. C. 112; Cockjleld v. Boxstead, 2 Ssilk. 477:
R. V. Staffordshire, 26 L. J. M. C. 179.

On all matters of fact the decision of the sessions is final ;
no bill of exception lies : R. v. Preston-upon-the-Hill, Buit.
S. C. 77. And so also, where they act within their juris-

APPRENTICE. 155

diction, and exercise their discretion on the matter of the
appeal, however wrong their determination may be : H. v.
Middlesex (Slade's Case), 2 Q. B. D. 516; 46 L. J. M. C.
225 ; 36 L. T. 402 ; B. v. Kent JJ., 41 J. P. 263. UnlesV
a case be stated by the sessions for the opinion of the
High Court, and then the sessions must have heard the
evidence and found the facts on which the case is stated,
and on which the points of law are submitted to the High
Court, otherw^ise the court will not take cognizance of it.
B. V. Sutton Coldjield, L. J. 9 Q. B. 153 ; 42 L. J. M. C. 57,
e. nom. R. v. London and North Western Ry.

Where the sessions have acted without their jurisdiction,
and have been guilty of malversation by some of the justices
forming the court being personally interested in the decision,
the court will interfere by mandamus ; and at the time the
case was decided even although the certiorari was taken away :
R. V. Cheltenham Commissioners, 1 Q. B. 467 ; R. v. Sheffield
Ry. Co. 11 A. &E. 194.

APPRENTICE.

Adam Smith, in his " Wealth of Nations " (b. 1. c. 10) says. Derivation
there is no word Greek or Latin which expresses the idea we ^"^^^ history
now^ annex to the word apprentice, a servant, bound to work ^ ^ *^^"*'
at a particular trade for the benefit of a master, during a
term of years, upon condition that the master shall teach
him that trade : the word does not occur in its application
to mechanic arts before the reign of Henry 4.

In early times the 'prentice, and, in particular, the
** London 'prentice," formed an important portion of the
community ; and we find statutes in the reign of Henry 8 in
their interest, and still remaining on the statute book. 22
Hen. 8, c. 4, recites that divers wardens and fellowships had
made ordinances "after their own sinister minds and
pleasure, and that every apprentice should pay on his first
entry into their Common Hall," some 40s., some 30s., &c.,
" to the great hurt of the king's true subjects putting their
child to be apprenticed ; " and it was ordered that on the
entry into their fellowship the apprentice should pay no
more than 2s. Qd., and when his term expired not above
Ss. 4d, upon pain of forfeiture of £40.

Again in 28 Hen. 8, c. 5, reciting 22 Hen. 8, c. 4, and
that, " Sithen which said acts divers masters, <fec, by cautill
and subtil means compassed and practised to defraud and

156 APPRENTICE.

delude the said good and wholesome statutes, causing divers
prentices or young men immediately after their years be
expired, or that they be made free of their occupation or
fellowship, to be sworn on the Holy Evangalists that they
will not open shop, &c., as freeman without the licence and
assent of the master, wardens, &c., upon pain of forfeiting
their freedom, to the great hurt and impoverishment of the
apprentices and others their friends ; " and it ordains that
no apprentice shall be so restrained under a penalty of £40.
5 Eliz. c. 4, s. 35, contained various regulations respecting
apprentices ; but most of the enactments of the statute of
Eliz. were repealed by 54 Geo. 3, c. 96 ; and the whole
finally repealed by 38 & 39 Vict. c. 86, s. 17.

Of the statute of Eliz. Lord Coke observes, " that it was
enacted, not only that workmen should be skilful, but that
youth should not be nourished in idleness, but brought up and
educated in lawful sciences and trades." Co. Inst. 55.

The ruling of Lord Holt, C. J., in R. v. Johnson, 1 Salk.
that the practice which had then grown up could not be un-
settled, that the 5 Eliz. c. 4, conferred an original jurisdiction
on the quarter sessions in reference to apprentices, and which
ruling was followed in subsequent cases in Strange's Rep.
Mod. Rep. Cas. temp. Hard. ; 1 Wm. Saunds. have in modern
practice become obsolete; and no such cases are now heard
before the quarter sessions, excepting those on appeal from
a decision of justices in petty sessions. The original juris-
diction of the justices over the apprentice now is in the
district in which the master lives. E. v. Collinghourne, 2
L. Raym. 1410.
(jreneral The justices under 54 Geo. 3, c. 46, s. 3, have a general

jurisdic- jurisdiction to hear and determine complaints respecting
tion of apprentices. So far as the apprenticeship applies to the
justices. i3usiiiess of a workman (sec. 12, 38 k 39 Vict. c. 90), that
is, a " servant in husbandry, journeyman, artificer, handi-
craftsman, miner, or otherwise engaged in manual labour "
(sec. 10, ib.), any dispute between the master and apprentice
under that act, may be heard and determined by a court of
summary jurisdiction (sec. 5, ib.), and which is deemed a
court of civil jurisdiction having all the powei'S conferred on
a County Court. (Sec. 4, ib.) But those powers are in addi-
tion to, and not in derogation of, any powers conferred on the
justices by the Summary Jurisdiction Act ; but no warrant
can issue under this act excepting against an apprentice
failing to appear on a complaint under the act. (sec. 9, ib.)
The Act is of a " civil " character relating to wages and

APPRENTICE. 157

damages for breach of contract ; and by sec. 3, sub-sec. Ij
the justices may rescind any contract within the act
including an apprenticeship.

The compulsory binding of parish apprentices under 4-3
Eliz. c. 2, s. 5, and 8 & 9 Will. 3, c. 30, was repealed by 7 &
8 Vict. c. 101, s. 13.

It may be mentioned that the 5 Eliz. c. 4 and so also 54
Geo. 3, c. 96, contained various regulations respecting appren-
tices, but these statutes were wholly repealed by 38 & 39
Vict, c. 86, s. 17.

After the Poor Law Amendment Act, 1834 (4 & 5 Will. Poor law
4, c. 76, sec. 15), the apprenticing of children of. poor orders,
persons was made subject to the rules and orders of the
Local Government Board which should be made from time
to time (see (rlen's Consolidated Poor Law Orders) ; and by
sec. 61, the justices are to ascertain whether such rules,
then in force, had been complied with, and they are to
certify the same at the foot of the indenture and counter-
part, and without such certificate the contract of apprentice-
ship would not be valid.

But those orders are only applicable in the exceptional
cases (since 1st October 1844) where the allowance of the
justices is required to the apprenticeship ; they do not apply
to apprenticeships made under the Board of Guardians of a
Union under 7 & 8 Vict. c. 101, s. 12, and under which,
where a parish is within a union or subject to a Board of
Guardians, the guardians and not the overseers have con-
ferred on them the full power to bind a poor child as an
apprentice ; and in such case the indentures of apprentice-
ship will be executed by the guardians, and need not be
allowed by any justice. And the guardians have under
this section all the powers for binding or assigning any
such apprentice possessed by the overseers. The guardians
are to keep a register of all such apprentices, according to
42 Geo. 3, c. 46 (7 & 8 Vict c. 101, s. 12) (a).

The Stamp Act, 33 & 34 Vict. c. 97, defines in the schedule Definition
of stamps that every writing relating to the service or tuition "^der the
of an apprentice, clerk, or servant placed with any master, to ^^"^P ^^^'
learn any profession, trade, or employment (except articles
of clerkship to attorneys or others specially charged with
duty), is to be deemed an instrument of apprenticeship.

(rt) As to these regulations tures or a settlement under them,
being merely directory and these see It. v. St. Mary, BermuJidsey,
omissions not affecting the inden- 2 E. &; B. 809 ; 23 L. J. M. C. 1.

158

APPRENTICE.

Poor chil-
dren ex-
empt from
duty.

But instruments relating to any poor child apprenticed
by, or at the sole charge of, any parish or township, or by
or at the sole charge of any public charity, or pursuant
to any Act for the regulation of parish apprentices, are
exempt from any duty.

Under the statute the duty is : —

Where there is no premium or consideration .
In any other case : —

For every X5, and also for any fractional part of

£5 of the amount of premium or considera-

< tion

6

5 0

Recital in
indenture
no proof of
poverty.

Payments
liable to
duty.

Enrolment
of inden-
tures.

Construc-
tion of in-
denture.

And there is a penalty of £20 on not stating the full
amount of the consideration.

The recital in the indenture that the premium is paid out
of a charitable fund is not proof that it is so paid ; nor can
the declaration of the parish officers be admitted as proof of
out of what funds it was paid, more especially when they
might be called as witnesses. H. v. Skiffington, 3 B. <fe A.
382.

The sum paid, and not that agreed to be paid, is the
criterion for the premiiun ; as where £19 195. is paid for
£20 agreed to be paid. King v. Low, 3 C. & P. 620.

The covenant on the part of the parent to provide the
poor apprentice with maintenance and clothing is not such
a benefit as renders the indenture liable to a stamp
duty. R. v. St. Petrox in Dartmouth, 4 T. R. 196 ; R. v.
Aylesbury, 3 B. & Ad. 569. But where, in addition to the
premium from the charitable society, the father gave four
I.O.U.'s for £5 each payable after the interval of a year
without setting them out in the deed, the deed was held to
be void. Westlake v. Adams, 5 C. B. N. S. 248 ; 27 L. J. C. B.
271. See also R. v. Amersham, 4 A. & E. 508 : R. v. Rail-
don, 3 B. & Ad. 427 ; Ilawkes v. Clutterhuck, 2 C. & K. 811.

In some towns the custom is to enrol the deed of appren-
ticeship. See Com. Dig. " London," N. 2. Barber v. Dennis,
6 Moore, 69 ; i?. v. Marshall, 2 T. R. 2 ; i?. v. Cambridge
{Mayor), 2 Chitty, 144.

Where the parties appear from the whole instrument to
have contemplated above all other things a contract of
master and apprentice, it will be deemed to be one of appren-
ticeship : R. V. St. Margaret's, 6 B. & C. 97 ; i?. v. Combe, 8
ib. 82 ; R. v. Tipton, 9 ib. 888 ; R. v. Edingdale, 10 ib. 739 ;
R. v. Nether Knutsford, 1 B. & Adol. 726 ; i?. v. Crediton, 2

APPRENTICE. 159

ib. 493; E. V. Newton, 3 Nev. & M. 306; 1 Ad. & E. 238.
But otherwise it will be but an imperfect contract of appren-
ticeship so as to confer a settlement: R. v. Tipton (supra),
R. V. Billinghay, 5 Ad. & E. 676. The mere fact of the
contract speaking of the servant being "taught" or "in-
structed " in his work, will not constitute it a contract of
apprenticeship, if in other respects it is essentially a contract
of hiring : R. v. Nortlwwram, 2 New Sess. Cas. 437 ; 10
Jur. 1003.

The contract must not be one prohibited by statute ; as Oontract
where a child under sixteen years of age is bound apprentice ^ot to be
to a chimney-sweep. Such a contract is void, and not ^^ 4,tute
merely voidable. See R. v. Hipswell, 8 B. & C. 466 ; ^. v.
Gravesend, 3 B. & Adol. 240. See 3 & 4 Vict. c. 85, s. 2 ; 27
k 28 Vict. c. 37; 38 & 39 Vict. c. 70, as to chimney
sweepers. See post, p. 187.

No boy under the age of ten, or any girl, can be bound to
work in collieries underground : 35 & 36 Vict. c. 76, s. 5 ;
nor boy under twelve or girl of any age, in metalliferous
mines underground : 35 <fe 36 Vict. c. 77, s. 4 ; and no child
under nine years of age can be bound apprentice by the
parish officers, nor the guardians of the union : 5^ Geo. 3, c.
139, s. 7.

The settlement in a parish by apprenticeship is founded Parish ap-
on 3 & 4 Will, (fe Mary, c. 11, s. 8, enacting that " if any prentice,
person shall be bound an apprentice, and inhabit in any
town or parish, such binding and inhabitation shall be
adjudged a good settlement. '^

The inhabiting under the indenture must be for forty days
in a parish : R. v. Flockton, 2 Q. B. 535 ; and is where the
apprentice sleeps the last of the forty days in one parish :
see St. John v. St. James, 1 Str. 594 ; R. y. Brighthelmston^
5 T. R. 188 ; and this although he does no service during
the time : R. v. Charles, Burr. S. C. 707 ; R. v. Burton-upon-
Irwell, 32 L. J. M. C. 102. But the lodging must be for the
purpose of the apprenticeship : R. v. Gwinnear, 1 A. & E.
152; R. V. YorJcshire, W. R. JJ., 2 Dowl. N. S. 707 ; and
not only on account of illness : R. v. Bramhy-in-the- Marsh, 7
East, 381 ; and see R. v. Stratford-upon-Avon, 11 East, 176.
The forty days need not be consecutive : R. v. Gainsborough^
Burr. S. C. 586 ; or within one year : R. v. Aldstone, 2 B. &
Ad. 207.

Residence with the master in furtherance of the indenture
{R. V. Burslem, 11 A. & E. 52 ; i?. v. Foulness, 6 M. & Sel.
351) can raise no question. But if the apprentice is allowed

160

APPRENTICE.

Service
with
another
master.

Where
master
dead,

or bank-
rui)t.

Where
premium
under £5,
or no pre-
mium and
death of
the master.

to sleep in another parish as a matter of indulgence, no
settlement is thereby gained : B. v. Ilkeston, 4 B. <fe C. 64.
Where, however, the master and apprentice were both in the
local militia at B. during the last forty da^^s, the apprentice
gained his settlement at B. : R. v. Chelmsford, 3 B. & Aid.
411. But where the apprentice is absent, the apprenticeship
must be actively or constructively going on : E. v. Broiton^
4 B. & Aid. 84 ; R. v. Banbury, 3 B. & Ad. 706; R. v.
Somerhy, 9 A. & E. 310 ; i?. v. Linkinhorne, 3 B. & Ad. 413.

The apprentice sleeping the last night of his apprenticeship
in the place which may be considered as his ordinary lodg-
ing, the settlement will be there gained : R. v. Barton under
Irwell, 32 L. J. M. C. 102 ; S. C. Barton v. Hulme, 3 B. &
S. 662 ; 7 L. T. (N. S.) 853. See also R. v. Elswick, 30 L. J.
M. C. QQ ; 24 J. P. 787 ; 3 L. T. (N. S.) 321.

Service of the apprentice with another with the master's
assent, he receiving his earnings : R, v. St. George'* s, Hanover
Square, Burr. S. C. 12; or, if with the masters consent, but
without receiving the earnings : R. v. Barlestone, 5 B. & Aid.
780. But the service must be connected with the inden-
tures : R. V. Ecclesfield, 6 M. & S. 174. Where there is no such
consent, see R. v. St. Martin's, Exeter, 2 A. & E. 655 ; R. v.
Holy Trinity, 3 T. R. 605 ; R. v. Tdeford, Burr. S. C. 821 ;
subsequent assent will not be sufficient : R. v. Whitchurch,
1 B. & C. 574.

Service under the personal representatives of the deceased
master will be an effectual service under the indentures. R. v.
StocUand, Cald. 60; 1 Doug.- 70. See R. v. Chirk, Burr. S. C.
782. As to parish apprentices, see 32 Geo. 3, c. 57, ss. 2, 4 ;
R. V. Sheepshead, 15 East, 59 ; R. y. Eakring, Burr. S. C. 321.
In the case of the master's bankruptcy the apprentice may
be discharged from his indentures by notice in writing to the
trustee to that effect, 32 & 33 Vict. c. 71, s. 32. As to
the former case, see R. v. Buckingham, 2 Ld. Raym. 1352 ;
R. v. Langham, Cald. 126.

Where no premium, or a premium of less than £5, has
been paid, the covenant for the maintenance of a parish
apprentice is not in force for more than three months after
the death of the master. 32 Geo. 3, c. 57, s. 1 ; 5 Vict. c. 7.
The justices, by indorsement on the indentures, may order
the apprentice to serve the remainder of his term to either
the widow, husband, son, daughter, brother, sister, executor
or administrator of the deceased master making application
for such purpose. 32 Geo. 3, c. 57, s. 2. See Cooper v.
Simmons, 31 L. J. M. C. 138. As to the custom in London,

AKBITRATION. 161

see R. V. Peck^ 1 Salk. Q>&, 204 ; Falling's Laws of London,
482, as to the death of the master dissolving the contract in
an ordinary apprenticeship.

The apprentice may obtain his discharge on complaint to Discharge.
two justices of " misusage, refusal of necessary provisions,
cruelty, or other ill-treatment." 20 Geo. 2, c. 19, s. 3;
4 Geo. 4, c. 29, s. L And as to a parish apprentice remov-
ing out of the country, or forty miles from the parish in
which he resides, see 56 Geo. 3, c. 139, s. 8.

Any person aggrieved by a determination of the justices Appeal.
under 20 Geo. 2, c. 19, may appeal to the next general
quarter sessions held for the jurisdiction in which the order
complained of may be made, except it be an order of com-
mitment, and which sessions will hear and determine the
same, with power to award costs not exceeding forty shillings
(sec. 5); see now Baines' Act, infra, "Appeal." By sec. 6,
certiorari is taken away; but see the Sum. Juris. Act, 1879,
s. 40, and tit. " Certiorari " infra.

ARBITRATION.

By 12 & 13 Vict. c. 45, s. 12, reciting 9 & 10 Will. 3, c. 15, Judge may
and that it was expedient to facilitate and render more leferappeal
effectual references to arbitration disputes for which the *? ^^ '*^^''^'
remedy is by appeal to a court of general or quarter ses-
sions of the peace, it is enacted " that at any time after
notice given of appeal to any court of general or quarter
sessions of the peace against any order, rate or other matter
(except a summary conviction or an order in bastardy, or Exceptions,
any proceeding under or by virtue of any of the statutes
relating to Her Majesty's revenue of excise or customs,
stamps, taxes, or post-office), for which the remedy is by
such appeal, it shall be lawful for the parties by themselves
or their attomies, and by order of a judge of Her Majesty's
Court of Queen's Bench, to submit the matter or matters of
such appeal to the award or umpirage of any person or
persons, and to agree that such submission should be made
a nile of the said Court of Queen's Bench, and to insert
such agreement in their submission or the condition of the
bond or promise, whereby they oblige themselves respectively
to submit to the award or umpirage of such person or per-

162 ARBITRATION.

sons, and thereupon such and the like proceedings in all
respects shall and may be taken with regard to submissions
under this Act, and to enforcing awards or umpirages there-
upon, and to setting aside the same, as are authorized by
the said Act of King William the Third with regard to the
cases therein provided for; and every award or umpirage
duly made under this Act shall be as binding and effectual
to all intents as if the same had been a regular judgment
of the said court of general or quarter sessions, and shall
and may on the application of either party be enrolled
among the records of the said court of sessions."

Sec. 1 3 enacts. " That it shall be lawful for any court of
general or quarter sessions of the peace, before which any
appeal (except against a summary conviction or an order in
bastardy, or any proceeding under or by virtue of any of
the statutes relating to Her Majesty's revenue of excise or
customs, stamps, taxes, or post-office) shall be brought to
order, with consent of the parties or their attorneys, that
the matter or matters of such appeal be referred to arbitra-
tion to such person or persons, and in such manner and
on such terms as the said court shall think reasonable
and proper; and such order may be' made a rule of
the Court of Queen's Bench on the application of either
party; and the award of the arbitrator or arbitrators, or
umpirage of the umpire, may, on motion by either party at
the sessions next or next but one after such award or
umpirage shall have been finally made and published, or
after the decision of the Court of Queen's Bench on any
motion for setting aside the same, be entered as the judg-
ment of the court of general or quarter sessions in the
appeal, and shall be as binding and effectual to all intents
as if given by the said court : provided always, that the
Court of Queen's Bench may, if it think fit, on application
within the term next after the making and publication of
such award or umpirage, either refer the case back again to
the same arbitrator, arbitrators or umpire, or wholly set
aside the award or umpirage already made, and may in the
latter event order the court of general or quarter sessions to
enter continuances and hear the appeal."

Sec. 14, "If upon any reference to arbitration under this
Act it shall be made to appear to the Court of Queen's
Bench that, either from the death of the arbitrator or arbi-
trators or umpire, or from any other cause, it has become
impossible that an award or umpirage can be made, it shall
be lawful for the said court to order the court of general

ARBITRATION. 163

or quarter sessions of the peace to enter continuances, and
hear the appeal."

By 12 tk 13 Vict. c. 45, s. 15, the several provisions relating
to arbitration contained in 3 & 4 Will. 4, c. 42, are " to be
deemed and taken to be applicable to arbitrations under this
Act ; and in every such arbitration the arbitrator or arbi-
trators or umpire shall have the same powers of amendment
which the court of general or quarter sessions of the peace
would have had on the trial of the appeal."

By 12 & 13 Vict. c. 45, s. 16, '* No recognizance entered
into pursuant to any statute or statutes for the prosecution
and trial of any appeal shall be deemed to be forfeited . . .
by any submission to arbitration under the provisions of
this Act."

When the appeal is referred by the sessions for arbitra-
tion, they do not thereby part with their jurisdiction over
the ultimate decision on the appeal : the reference is made
ill aid of their judgment: H. v. Limehouse, 19 Vin. Abr. 348;
see tit. ^' Special Case," infra. The arbitrator cannot deter-
mine the validity of the rate ; that is a matter of law for
the sessions, or for consideration on a special case : see
Thorpe v. Call, 1 M. & W. 531. The arbitrator may be
empowered to state a case on a point of law : London
Dock Co. V. St. PauVs, Shadwell, 32 L. J. Q. B. 30. He
need not state his reasons : Jones v. Corry, 8 L. J. C. P. 89 ;
Hodgkinson v. Fernie, 26 L. J. C. P. 217.

Where the award is made, the party taking it up is
bound to produce it at the sessions for enrolment, and on
refusal, the party will be compelled by mandarmis to do
so, as the sessions could not act, unless the original be
produced : Lord v. Standish, referred to in Leem. and Cross
Quar. Sess., p. 352, 2nd ed., as in M.S. (T. T. 1856), and
mentioned as incorrectly reported, as by consent, in 27
L. T. R. 185. (Sir R. A. Cross was counsel in the case.)

The Sessions cannot alter the award ; their only duty is
ministerial to enter up the judgment, and no adjournments
are requisite of the appeal, as any future sessions is bound to
enter the award as their judgment. West London Railway
Co. V. Fulham Union, L. R. 5 Q. B. 361 ; also eo nom. R. v.
Middlesex, 40 L. J. M. C. 109.

In that case it was held that the arbitrator could not
award costs unless that power was distinctly given to him.
And where he has power to award costs he should himself
ascertain the amount. Cleric v. Briiihrook, 20 L. T. R. 115.

The sessions at which the award is enrolled has no

164

BAKER.

power to award costs. R. v. Middlesex J J., L. R. 5 Q. B.
361 ; 40 L. J. M. C. 109 j R. v. Yorkshire W. R., 34 L. J.
M. C. 142.

Should the case be referred back to the arbitrator to
ascertain the costs he need not go into fresh evidence.
Re Huntley, 1 E. & B. 787.

The costs may be taxed " out of sessions," if no objection has
been made to such a course at the time of reference : — see
The Sonthampton Gas Light tSc Coke Co. v. the Southampton
Union, 46 L. J. M. C. 238.

Bread to

be sold by
weight.

Scales to
be carried.

What
' * fancy
bread."

BAKER.

All bread, not being French or fancy bread, is to be sold
by weight, under 6 & 7 Will. 4, c. 37, s. 4. See also the Weights
and Measures Act, 1878, s. 19. The weight is to be taken
after the baking, Jones v. Iluxtable, L. K. 2 Q. B. 460 ; 36
L. J. M. C. 122. Bill V. Browning, L. R. 5 Q. B. 453; 22
L. T. 584 ; 19 W. R. 21. Where a customer asks for bread
to be sold by weight the vendor is bound to do so ; but not
unless requested. R. v. Kennett, L. R. 4 Q. B. 565 ; 10 B.
& S. 534 ; 20 L. T. 656 ; see also Williams v. Biggins, 16 L. T.
492 ; Mitton v. Troke, 20 L. T. 563.

Under sec. 7 the baker is " constantly " to carry in his
cart correct scales under a penalty of £5. See Robinson v.
Cliff, 1 Ex. D. 294; 45 L. J. M. C. 109; 34 L. T. 689.
R. V. Kingshy, 15 J. P. 65. And to have under the penalty
of «£5, weights and scales in his shop, 6 & 7 Will. 4, c. 34, s. 6.
This information is to be laid within 48 hours or reasonable
time sec. 31 (a).

The fancy bread excepted means only such bread as at the
time the legislature passed the Act, was sold under the
denomination of " fancy or French bread," — as the French
roll, &c. The Act was never intended to except a large
quartern loaf, merely because it was not baked in batches
and so became crusty. The well-known Aerated bread is not
fancy bread. The Aerated Bread Co. v. Gregg, or Griqg,
L. R. 8 Q. B. 355 ; 42 L. J. M. C. 117 ; 28 L. T. 816 ; the
court remarking on R. v. Wood, 38 L. J. M. C. 144 ; L. R. 4
Q. B. 559 ; 20 L. T. 654 ; 10 B. & S. 534.

(a) 3 Geo. 4, c. 106 (ss. 27,
28), applies to London and within
the bills of mortality, and ten

miles of the Royal Exchange,
with like provisions as in 6 & 7
Will. 4, c. 37.

BAKER. 165

Baking or carrying on the business of a baker on aNottocarry
Sunday is prohibited by sec. U of 6 & 7 Will. 4, c. 34, under »» ^"^^^^^^
a penalty for the first offence of 10s., or imprisonment ^^ ^^ *^*
with or without hard labour for seven days; — for a second
offence, 20s., or fourteen days* imprisonment with or without
hard labour; for a third and subsequent offence 40s., or
imprisonment for one calendar month wdth or without hard
labour ; (tliese scales are similar to those in the Summary
Jurisdiction Act, 1879 infra.)

If the offence of which a master baker has been convicted Offence by
arises through the wilful act, neglect or default of a journey- ^ct of
man or other servant, a justice may order what sum he shall ^®^^^^*-
pay to his master as recompense, 6 & 7 Will. 4, c. 37, s. 13.
The information must be on oath and within six calendar
months, 11 & 12 Vict. c. 43, s. 11. See Wray v. Toke, 12
Q. B. 492, this need not appear in the information.

A person cannot be convicted of using prohibited mixtures Knowledge,
or ingredients in making bread for sale, unless there be
knowledge either in himself or the person employed by him
of the presence of the ingi'edient : Goi^e v. James, L. R.
7 Q. B. 135 ; 41 L. J. M. C. 19 ; 25 L. T. 593 ; 20 W. R.
201. (See also tit. "Adulteration.")

On conviction an appeal lies under 6 & 7 Will. 4, c. 37, Appeal,
ss. 25, 26, to the quarter sessions by the person aggrieved,
such sessions being those for the county, division, city,
liberty, town or place where the judgment was given. The
appellant will enter into his recognizance, with two sureties,
in double the amount of the penalty, within tw^enty-four
liours of the conviction to prosecute his appeal at the quarter
sessions, and pay costs.

Should judgment be affirmed, the appellant will forth w^ith
pay down the sum adjudged to have been forfeited, together
with the costs, or in default be committed.

As to the notice of appeal see Ex parte Blues, 5 E. & B.
291 ; 24 L. J. M. C. 138 ; B. v. Salop J J., 50 L. J. M. C.
72, and tit. "Summary Jurisdiction Acts," infra.

The court has power to give "reasonable costs" against the
informer: see R. v. Smith, 29 L. J. M. C. 216; R. v. Perdey,
34 L. J. M. C, 4, (and see those cases, tit, " Costs ").

1.66

BETTING-HOUSES.

BATHS AND WASH-HOUSES.

9 & 10 Vict. c. 74.

By 9 <fe 10 Vict. c. 74, s. 30, every person who shall feel
aggrieved by any bye-law, order, direction or appointment of
or by the council or commissioners shall have the like power
of appeal to the general quarter sessions as nnder the pro-
visions of the "Companies Clauses Consolidation Acts,
1845" (incorporated with this Act), he might have if feeling
aggrieved by any determination of any justice with respect
to any penalty.

No house,
&c. , to
be kept
open for
betting.

Deemed a

gaming

house.

BETTING-HOUSES.

{Set Tit. " Gaming.")

2 <k 3 Vict. c. 47; 8 & 9 Vict. c.
17 & 18 Vict. c. 38

109; 16 & 17 Vict. c. 119;
37 Vict. c. 15.

The "Betting House Act, 1853," 16 k 17 Vict. c. 119
(now called "the principal Act") was amended by the 37 Vict,
c. 15, "The Betting Act, 1874." By the Act of 1853, sec. 1,
" no house, office, room or other place, shall be opened, kept,
or used for the purpose of the owner, occupier or keeper
thereof, or any person using the same, or any person procured
or employed by or acting for or on behalf of such owner,
occupier or keeper, or person using the same, or of any person
having the care or management, or in any manner conducting
the business thereof, betting with persons resorting thereto ; or
for the purpose of any money or valuable thing being received
by or on behalf of such owner, occupier, keeper or person as
aforesaid, as or for the consideration for any assurance,
undertaking, promise or agreement, express or implied, to pay
or give thereafter any money or valuable thing on any event
or contingency of or relating to any horse-race, or other race,
fight, game, sport or exercise, or as or for the consideration for
securing the paying or giving by some other person of any
money or valuable thing on any such event or contingency as
aforesaid ; and (sec. 2) every house, <kc., opened, kept or used
for the purposes aforesaid, or any of them, is hereby declared
to be a common nuisance, and contrary to law.

Betting-houses are deemed " gaming-houses " within 8 & 9
Vict. c. 109 (16 & 17 Vict. c. 119, s. 2).

BETTING-HOUSES. 167

By 2 & 3 Vict. c. 47, s. 48, the commissioners of police
may authorise superintendents and constables to enter places
believed to be used as gaming-houses, and to seize and
destroy tables, &c. And the owner or keeper, banker or
croupier, and other persons acting in the conduct of the
house will be liable to a penalty not exceeding £100, or
six months' imprisonment ; persons in the house without
lawful excuse, will be under a penalty not exceeding £5.

By 8 tfe 9 Vict. c. 109, s. 3, justices (excepting within the
Metropolitan police district) may authorise constables under
warrant to enter places suspected to be gaming-houses ; and
sections 4 and 6 give similar penalties as those imposed
under 2 & 3 Vict. c. 47, s. 48 (sup.).

By sec. 5 it is not necessary to prove the persons were
playing for money.

Sec. 20 gives the bare right of appeal on the party entering Appeal,
into his recognizance within twenty-four hours, with two
sureties, to try the appeal. See a7ife, p. 165.

Much discussion has been raised in consequence of the Place.
ingenious manner in which these statutes have been sought
to be evaded by the betting community, and in particular as
to the meaning of the words, " other place."

One device was the using a large umbrella with an an-
nouncement on it " G. Bows, Victoria Club, Leeds ; " and a
card exhibited " We pay all debts first past the post ; " B.
was calling out offering to make bets ; this was held to be
the using a fixed " place " for betting on which a conviction
could be made under 16 & 17 Vict. c. 119, s. 3. jBows v.
Fenwick, 9 L. R. C. P. 339 ; 43 L. J. M. C. 107 ; 30 L. T.
524 ; 22 W. R. 804. See also Galloway v. Maries, 8 Q. B. D.
275 ; 51 L. J. M. C. 53.

An inclosed ground where a pigeon-shooting match is
taking place, to which the public are admitted on pay-
ment of money, and in which betting takes place, is a
" place " kept and used for the purpose of betting within^he
Act. Eastwood v. Millar, 9 L. R. Q. B. 440; 43''L. J. M. C.
139 ; 30 L. T. R. 716. So also a ground used for cricket,
Haig v. Sheffield Corporation, 10 L. R. Q. B. 102; 44 L. J.
M. C. 17 ; 31 L. T. R. 536. In this case the evidence satis-
fied the magistrates that the occupier knew what was going
on, and that he took no steps to prevent the betting, and
the court held he w^as rightly convicted under the Act,
sees. 1 and 3 : Haigh v. Sheffield {Corporatiori) (supra).

A tree in Hyde Park as a place of appointment and resort
to bet is not within the Act. Doggett v. Catterns, 19 C. B.

168

BETTING-HOUSES.

Penalty on
owner or
occupier.

Receiving
deposit on
nny bet.

Exhibiting

betting

placards.

N. S. 735 ; 34 L. J. C. P. 159 ; 12 L. T. N. S. 355 ; nor is
a club where the members habitually bet within the Act.
Oldham v. Ramsden, 44 L. J. C, P. 309 ; 32 L. T. N. S. 825.

An agent receiving money by letter to invest on horse-
racing is within the sections. Wright y. Clarke, 34 J. P. 861.

Sec. 3, Act 1853. Any person who being the owner or occu-
pier of any house, office, room or place, or a person using the
same, shall open, keep or use the same for the purposes herein-
before mentioned, or either of them ; — or any such person who
shall knowing and wilfully permit the same to be opened,
kept, or used by any other person for the purposes aforesaid
or either of them ; and any person having the care or
management of, or in any manner assisting in conducting
the business of any house, office, room or place opened, kept,
or used for the purposes aforesaid, or either of them, will be
subject to a penalty not exceeding £100 and costs; or in
default, or in the first instance, imprisonment with or
without hard labour for not exceeding six calendar months :
but subject when such penalty is reduced to below £5 to the
scale for imprisonment under Sum. Juris. Act, 1879.

Section 4. Any such person as before mentioned in the
preceding sections " Who shall receive, directly or indirectly,
any money or valuable thing as a deposit on any bet, on con-
dition of paying the same on the happening of any event or
contingency of or relating to any of the events before
enumerated, or as or for the consideration for any assurance,
undertaking, promise, or agreement, express or implied, to
pay, or give thereafter any money or valuable thing on any
such event or contingency, and any person giving any
acknowledgment, note, security, or draft on the receipt of
any money or valuable thing so paid or given as aforesaid,
purporting or intended to entitle the bearer or any other
person to receive any money or valuable thing on the
happening of any such event or contingency as aforesaid :"
Penalty not exceeding £50 and costs ; in default, or in the
first instance, three months' imprisonment with hard labour,
when the penalty is below £5.

By section 7, — Any person exhibiting or causing to be
exhibited or published any placard, handbill, card, WTiting,
sign, or advertisement whereby it shall be made to appear
that any such house, &c., before mentioned is opened, kept,
or used for the purpose of making bets or wagers as aforesaid,
or for the purpose of exhibiting lists for betting, or with
intent to induce any person to resort thereto for the purpose
of betting ; or any person who on behalf of the owner or

BILLIARDS. 169

occupier of any such house, &c., or person using the same,
shall invite other persons to resort thereto for the purpose
of betting in manner aforesaid, will incur a penalty not
exceeding £30 and costs ; in default, or in the first instance,
not exceeding two calendar months' imprisonment, with or
without hard labour; where the penalty is less than <£5,
{supra) (a).

tinder section 6 the Act does not apply to a person hold-
ing stakes to be paid to the winner of a race, or lawful
game, sport, or exercise, or to the owner of any horse engaged
in any race.

The information must be laid within six months of the luforma-
offence. Movant Tavlo?', 45 L. J. M. C. 78 ; L. R. 1 ^ion within
Ex. D. 188. . «^^«^o^ths.

As to the form of information and the allegation of time. Form
see Onlei/ v. Gee, 30 L. J. M. C. 222 ; 4 L. T. N. S. 338 ;
see 11 & 12 Vict. s. 43.

The landlord's own books relating to betting, showing by Evidence,
marks therein that he had recently used them, are evidence
against him, and on which a conviction could be made ;
Foote V. Butler, 41 J. P. 792 ; in which case the information
was at the instance of an informer who had made bets with
the defendant.

BIIiLIAKDS.

8 & 9 Vict. c. 109 ; and Licensing Act, 1872.

The justices at their " licensing sessions " grant billiard Licence,
and bagatelle licences, 8 & 9 Vict. c. 109, s. 10 ; and see
Licensing Act, 1872, s. 75, as to notices. But on a refusal
of the licence there is no appeal, JEx parte Chamberlain, 4 No appeal.
Jur. N. S. 477 Q. B. ; B. v. Devonshire, 8 E. & B. 644.

A conspicuous notice must be exhibited that the place is Exhibition

of notice of

(a) The same penalty now event or contingency as men- licence,
applies to a person sending, ex- tioned in the Act, or will make
hibiting or publishing any letter, such bet on behalf of any person, —
circular or telegram, placard, or with intent to induce any per-
handbill, card, or advertisement son to apply for such information
whereby it is made to appear that or advice, — or inviting any person
any person in the United King- to take any share in or in connec-
dom or elsewhere, will on appli- tion with such bet (37 & 38 Vict,
cation give information or advice c. 15, s. 3).
on any such bet or wager, or such

170 BILLIARDS.

licensed, under a penalty to the keeper of £10 for every day
on which the billiard table, &c,, shall be used without such
notice ; or committal to prison for not less than one month
(see the right of appeal on committal under the Summary
Jurisdiction Act, 1879, sec. 19); or he may be proceeded
against as the keeper of a common gaming-house ; s. 11, 8 &
9 Vict. c. 109.

Section 13 limits the time for playing.

Under the Licensing Act, 1872, s. 75, any person convicted
of an offence against the tenor of a billiard licence will be
punished under that Act in the same manner as a licensed
person, as for suffering any gaming or any unlawful game to
be carried on on the licensed premises (ib. sec. 17).

Under sec. 52, Licensing Act, 1872, the right to appeal to
the quarter sessions is given upon a conviction (see the sec.
Tit. ''Alehouse"), p. 71.

The offences against the tenor of the billiard licence are : —

1. Not keeping the words " licensed for billiards" on the
outside of the house ;

2. Wilfully or knowingly permitting drunkenness ;

3. Knowingly allowing the consumption of exciseable
liquors ;

4. Knowingly suffering unlawful games ;

5. Knowingly suffering persons of notoriously bad charac-
ter to assemble in the house ;

6. Opening the house for play, or allowing any play
therein after one and before eight o'clock in the morning, or
keeping it open or allowing any play therein on Sundays,
Christmas Day or Good Friday, or on any day of public fast
or thanksgiving.

These offences are punishable like those of gaming or
suffering unlawful games under sec. 17, Licensing Act, 1872
{supra y p. 77).

As to the offence No. 2, see sec. 13, Licensing Act, 1872
{siipra, p. 75).

Beer and sweets are not exciseable liquors to be included
within offence No. 3 : see Jones v. Whittaker, L. R. 5 Q. B.
541 ; 39 L. J. M. C. 139 ; E. v. Lancashire, 7 Q. B. 839 ;
S. C. €0 nom. Lancashire v. Staffordshire J J., 26 L. J. M. C.
171.

BOROUGH RATE. 171

BOKOUGH RATE.

Under 5 & 6 Will. 4, c 76, s. 92, where the borough fund
is insufl&cient for the payment of the expenses to be incurred
in carrying into effect the provisions of the Act in order to
raise the amount estimated, the council is authorised and
required from time to time to make a borough rate in the
nature of a county rate, and for that purpose the council
will have within their borough all the powers which the
county justices have at quarter sessions by virtue of 55 Geo.
3, c. 51. And if any person think himself "aggrieved" by
any such rate he may appeal to the Recorder at the next
quarter sessions for the borough in which such rate has been
made : or in case there shall be no such Recorder, to the
justices at the next quarter sessions for the county within
which such borough is situate, or to which it is adjacent : and
such Recorder or justices shall hear and determine the same,
as in the case of an appeal against any county rate {a).

The borough rate need not be made in public. Jones v.
Johnson, 5 Exch. 862.

In R. V. Bath {Recorder), 9 A. & E. 871, the court held
that, as with a county under 55 Geo. 3, c. 51, s. 14, the
remedy by appeal against a borough rate was limited to cases
of the total omission of parishes from a rate, or of the
unequal apportionment of the rate among the parishes sub-
jected to it ; no appeal being given to individuals. But, as
suggested by Mr. Geary in his note to this section in Rawl.
on Corp., this view can hardly be supported where the words
of the section give an express personal appeal to " any
person " who " shall think himself aggrieved." In some
instances a borough might consist of only one parish, as in
the borough of Bradninch, where the borough and parish
are co-extensive. See Were v. Devon Clerk of the Peace, 6 B.
k S. 7, 34 L J. M. C. 47. Under sec. 51, 15 & 16 Vict. c.
81, every place in which rates in the nature of county rates
may be levied, having a separate commission of the peace,
and not subject to the jurisdiction of the county in which
such place shall lie, nor contributing towards the county
rates made for such county at large, will be included in the
word " county " in that Act.

(a) As to the borough liability 4, c. 76, see R. v. Monck, 46 L. J.
to contribute towards a county M. C. 251 ; 2 Q. B. D. 544 (ou
rate under sec. 117 of 5 & 6 Will. app.), and cases there cited.

I 2

172 BRIDGES.

The borough of East Looe was an ancient corporation by
prescription confirmed by Queen Elizabeth ; and by charter
of King James II. the borough was empowered to hold
sessions of the peace, and with a non intromittent clause to
the justices of the county. No rate in the nature of a county
rate had ever been assessed in the borough. East Looe was
held to be within the definition, and not liable to the county
rate. East Looe {Mayor) v. Cornwall J J., 3 B. & S. 20 ; 31
L. J. M. C. 245.

It was held otherwise where there was no evidence of the
non intromittent clause in the charters. Were v. Devon Clerk
of the Peace, 6 B. & S. 7 ; 34 L. J. M. C. 47.

The rate must not be retrospective. R. v. Dublin Corp.,
2 W. R. 371, Q. B. D.

The appellant need not go before the assessment com-
mittee, which could give no relief: R. v. L. <Ss N. W. Ry.,
46 L. J. M. C. 102; but he must show a grievance. See
ant€y p. 113.

BRIDGES.

Stat. 22, The statute 22 Hen. 8, c. 5, known as the Statute of

Hen. 8. Bridges, and passed in affirmation of the Common Law (2

^(1^^^\ t li^'^^- 700) recited in sec. 2 that " in many parts of the realm

Wi(l<Tes." i* cannot be known and proved what hundred, <fec., nor what

person certain a body politic ought of right to make such

bridges decayed, by reason whereof such decayed bridges for

lack of knowledge of such as ought to make them, for most

part lie long without any amendment, to the great annoyance

of the King's subjects."

For remedy thereof sec. 3 enacts that in every such case
where the bridge is without any city or town corporate, it
shall be " made " by the inhabitants of the shire or riding in
which the bridge shall be ; and if within a city or town cor-
porate then by the inhabitants thereof; and if part of such
bridge be in one such jurisdiction and part in another, then
the inhabitants thereof " shall be charged and chargeable to
amend, make and repair such part and portion of such
bridges so decayed as shall lie and be within the limits of the
shire, riding, city or town corporate wherein they be in-
habited at the time of the same decays."

And by sec. 4, in every such case, "for speedy reformation
and amending such bridges," the justices within the limits of

BRIDGES. 178

their commissions may call before them the constables of
every town and parish wherein such bridges or any parcel
thereof may be, or else two of the most honest inhabitants
within every such town or parish, " by the discretion of the
said justices of the peace or four of them at the least," and
upon the appearance of such constables or inhabitants the
justices or four of them, with the assent of such constables
or inhabitants, " shall have power and authority to tax and
set every inhabitant in any such city, town, or parish within
the limits of their commissions and authorities to such
reasonable aid and sum of money as they shall think by
their discretions convenient and sufficient for the repairing,
re-edifying and amendment of such bridges, and after such
taxation made the said justices shall cause the names and
sums of every particular person so by them taxed to be
written upon a roll indented." The clause thus gives the
justices power to appoint two collectors, to collect such sums
and to distrain on non-payment.

The Statute of Bridges created no new liabilities. No city
or town, not being a county of itself, was prima facie liable to
repair its bridges ; that obligation was only by prescription ;
R. v. Broughton, 5 Burr. 2700 ; and which duty commencing
with the reign of Richard I. (A.D. 1189), or by custom, or
by reason of tenure of adjacent lands, or ratione clausurce :
Bobbins v. Jones, 33 L. J. C. P. 5 (Erie, C. J.) ; see i?. v.
Ashb?/ Folville, 35 L. J. M. C. 154; L. R. 1 Q. B. 213.
As to the repair of a modern bridge built over a canal, see
H. V. Kerrison, 3 M. & S. 526 ; B. v. My, 15 Q. B. 827 ; 19
L. J. M. C. 223. No indictment has been sustained before
or since the statute which charged any district, including a
city or town corporate, not being a county, with liability to
repair simply, which is sufficient in the case of a county,
because upon that, as Lord Coke in his reading observes, and
is well known, a primd facie liability is cast (per Lord
Denman, C. J.) : E. v. New Sarum, 7 Q. B. 954-5 ; R v.
Yorkshire W. E., 2 East. 342, 348, 351 ; E. v. Ecclesfield, 1
B. & Aid. 348, 355, 359 ; E. v. Yorkshire W, i?., 4 B. & Aid.
623.

In E. V. New Sarum {sup.) the borough was enlarged
under stats. 2 & 3 Will. 4. c. 64, s. 35 and 5 & 6 Will. 4, c.
76, s. 7 by the addition of a parish in the same county
containing a bridge, which until then the county had repaired.
In the absence of any evidence that the borough had been
used to repair and maintain any bridges, it was held that the
transfer of the new district did not render the borough

174 BRIDGES.

liable to repair the bridge. See E. v. Borsetj K. B. E. T.
1825, MSS. Glen's Highways, 2nd Ed. p. 188.
Where But where the crown enlarges the boundaries of a city,

boundaries l^ging a county in itself, by annexing a part of the county,
'^ T-^^d ^^® enlarged part is to be considered as parcel of the old
county of the city so as to charge the inhabitants with the
repairs of bridges ; the statute does not lay the charge until
the bridge is in decay, and in the case of M. v. Norivich, 1
Stra. 177, the decay was not until after the annexation from
the county to the city ; see B. v. St Feter's, York, 2 L.
Baym. 1249. In the case of ^. v. Glo2icesfershire, 4 A. <fe E.
689, a portion of the county had been added to the city of
Bristol, and for the purpose of the making an order for the
stopping up a highway in such portions of Bristol the
transfer of a portion of the county to Bristol was held to be
complete, Bristol being a county in itself (a).

That case was referred to in argument in B. v. New Sarum

(sup.) but did not affect the decision ; the distinction rests in

this, that New Sarum was not a county.

Boundarica 2 & 3 Will. 4, c. 64, and 7 & 8 Vict. c. 61, fixed the

of counties boundaries of counties, and transferred the liability to repair

•^ wn i bridges from the one county to the other. B. v. Brecknoclcshire,

1 64, 7 & 8 15 Q- B. 813 ; 19 L. J. M. C. 203. It was held in that case,

Vict. c. 61. that where the mid-channel of the river is the boundary of

(See also the county, and a portion of land abutting upon the river is

p. 210). transferred from the one county to the other, the river to the

mid-channel is included, and with it the responsibility of

repairing the part of the bridge built thereover.

Turnpike By 33 & 34 Yict. c. 73, s. 1 2, when turnpike roads became

roads be- ordinary roads (and very few, if any, turapike roads now

ordinan- ©^ist), the bridges which were repaired by the trustees of the

roads* roads, became county bridges and so repairable. But such

bridges will be taken as having been built after 5 & 6 Will.

4, c. 50 (sec. 21), 20th March, 1836.

Present- Under the statute 1 Anne, st. 1, c. 18, s. 2, the court of

ment and General or Quarter Sessions upon due presentment, that a

or er tor i)i.i(jge within their jurisdiction is out of repair, may assess

upon every town, parish or place, in proportions upon

each respective town and parish as they usually have been

assessed towards the repair of bridges. Provision is then

made for the collection of the money, and for distress and

sale on non-payment within ten days after demand. The

(^a) See B. y. Gloucester and other cases, under tit. " Highways,"
infra.

BRIDGES, 175

making the presentment is a condition precedent to the
obligation of the justices to make an order. Be Newport
Bridge, 2 E. & E. 377 ; 29 L. J. M. C. 52.

Lord Ellenborough, C. J., said in R. v. Salop, 13 East, 95, P">'ic
"all public bridges are primd facie repairable by the inhabi- "^""S^™ y
tants of the county, without the distinction of foot, horse or pairable,
carriage bridges, unless they can show that others are bound prima
to repair particular bridges." But the bridge must be within facie.
the common law, and be erected over such water as answers
the description ^wmdw vel cursus aquce ; water flowing between
channels more or less defined, although such channels may be
occasionally dry. R. v. Berhyshirey 2 Q. B. 745. By 22
Hen. 8, c. 5, s. 9 the inhabitants bound to repair the bridge,
are also liable to maintain the approaches ia) to it for the
space of 300 feet distant from each end of the bridge.
Where the road by which a bridge was approached was at
times flooded by the river, a raised causeway was made with
arches and culverts at intervals for the passage of the flood
water, and which were necessary for the safety of the bridge
and causeway ; the inhabitants were held not to be bound to
maintain such arches as they were at a distance of more than
800 feet from the end of the main bridge. R. v. YorJcs. W. R.,
5 Taunt. 584 ; R. v. Oxfordshire, 1 B. & Ad. 289. It is,
however, a question of fact in each case whether an arch
thrown over cursus aquae is such as to be a public bridge ;
there is no general rule of law that arches under which there
is not a constant stream flowing cannot form a county or
public bridge ; though there cannot be a bridge the county
is bound to repair where there is no cursus aguce. R. v.
Wliitney, 3 A. & E. 69 ; ^. v. Gloucestershire, 1 Car. &. M. 506.
In the absence of evidence to the contrary a prescription to
repair a bridge includes the repair of the approaches. R.
V. Lincoln, 8. A. & E. 65 ; R. v. Devonshire, 14 E. 477 ;
R. V. Oxfordshire, 1 B. & Ad. 289. "County bridges"
includes hundred bridges. R. v. Cliart d; Longridge, L. R.
1 C. C. 237 ; 39 L. J. M. C. 107.

Under 43 Geo. 3, c. 59, s. 5 (Lord Gower's Act), to render Lord
the county liable to repair a bridge built by any private ^°^®J|
person, body politic or corporate, it must have been erected ^^J g

c. 59. '

(a) In the reign of Edwd. 3 held to be excrescences of the

the approaches to a bridge, the bridge, and, as such, prima facie

fabric of which, but not the. ^?t^* repairable by the same party as

ejusdem ponti.'i (yfhich. &n Qc,c\e?,\' the bridge itself: Abbot of

astical corporation sole was bound Coombe's Case, 43 Ass. 275, B.

by prescription to repair), were p. 2, 37.

176

•BRIDGES.

41 &42
Vict. c. 77.
Certifying
bridges as
public for
repairs.

Contribu-
tion from
county
rates.

Changing
situation of
county
bridges.

Compensa-
tion in the
purchase of
kud.

in a substantial manner, under the direction, or to the satis-
faction of the county surveyor or person appointed by the
justices. See B. v. Yorkshire W. R. 5 Burr. 2594 ; B. v.
Kent, 2 M. & S. 513; 7?. V. Bucks, 12 East, 192; Surrey
Canal Co. v. Ball, 1 Scott, N. R. 264 : see also i?. v.
Somerset, 38 L. T. R. 452, Q. B. D.; 33 & 34 Vict. c. 73,
s. 12.

Where any bridge had been erected before the passing of
41 & 42 Vict. c. 77, s. 21 (16 Aug. 1878) in any county with-
out such superintendence, as provided in sec. 5 of 43 Geo. 3,
c. 59, s. 5, and which is certified by the county surveyor or
other person appointed in that behalf to be in good repair
and condition, shall, if the county authority see fit so to
order, become and be deemed to be a bridge which the
inhabitants of the county shall be liable to maintain and
repair. See R v. Soinerset, 38 L. T. 452. Q. B. D.

And by sec. 22, the county authority may make con-
tribution out of the county rates towards the cost of any
bridge to be thereafter erected, after the same has been
certified in accordance with sec. 5 of 43 Geo. 3, c. 59, a^
being a proper bridge to be maintained by the county.
But such contribution is not to exceed one-half the cost of
erecting such bridge.

Before 14 Geo. 2, c. 33, s. 1, the justices had no power to
change the situation of county bridges (Buller, J.) : R. v.
Glamorganshire, 5 T. R. 283. Under that section the general
or quarter sessions are empowered to purchase land out of the
county rate (a), and not exceeding one acre, " for the more
commodious enlarging or convenient rebuilding " the county
bridge. And 43 Geo. 3, c. 59, s. 2, enables the sessions to
widen, improve, and make any such bridge or roads at the
end thereof, and make them more commodious to the public ;
and in case of necessity to order decayed bridges to be
taken down and rebuilt either on the old or new site, within
200 yards of the former one. And provision is made for the
purchase of land, and the empanneling a jury to assess the
compensation. But before any proceedings are taken by
the justices, presentment must be duly made of the in-
sufficiency of the bridge. See ante, R. v. Newport Bridge,
2 E. & E. 377; 29 L. J. M. C. 52.

These provisions as to the ascertaining the compensation
for the purchase of the land were to be ascertained in the
same manner as enacted in 13 Geo. 3, c. 78; but, although

(a) See 12 Geo. 2, c. 29.

BRIDGES. 177

that statute is repealed by 5 & 6 Will. 4, c. 50, the pro-
visions are substantially re-enacted in 43 Geo. 3, c. 59,
and form part of that Act, which remains unrepealed. See
also the provisions in 5 & 6 Will. 4, c. 50. See R. v.
MenonetJhshire, 6 Q. B. 343; R. v. Brecknockshire^ 15 Q. B.
813. As to the pulling down the old bridge before the
new bridge in a different site was passable, see {per Bayley, J.);
R. V. Dorset J J., 15 East, 594.

For the immediate repair and amendment of bridges. Immediate
32 Geo. 3, c. 110, s. 1, enables the justices in general or ^^P^^^**-
quarter sessions to appoint annually, at the April sessions,
two or more of their body to superintend the repairs of the
bridges situate in the county, and for preventing their
further decay, and to order any immediate repair, not
exceeding in cost <£20. And by sec. 2, the justices in
general quarter sessions or great sessions next after the
completion of the repairs may order payment of such sum
not exceeding ten (a) pounds, as shall be suificient to pay
for such repairs to be made out of the county rate, although
no presentment shall have been made of the want of such
reparation as directed by 12 Geo. 2. c. 29, s. 13. Before
such payment the justices who had ordered the repairs must
have returned their certificate to the sessions, stating the
nature of the repairs and defects, damage or injuries which
they had ordered to be repaired, and their reasons for
ordering the immediate repairs.

The surveyors of county bridges and persons contracting Power to
for the repairs have the same power and authority to search obtain
for and obtain all necessary materials for the purpose of ^^^^" .
making such repairs as is vested in surveyors of highways :
43 Geo. 3, c. 59, s. 1 ; 54 Geo. 3, c. 90, s. 2 ; 55 Geo. 3, c.
143, s. 1; 5 & 6 Will. 4, c. 49, s. 22.

55 Geo. 3, c. 143, s. 1, enacts that the surveyor of Mode of
bridges in every county appointed by the general quarter compensa-
sessions, and also the bridge master, or all persons under ^ ^"
contract for the rebuilding or repairing of any public bridge
built or repaired at the expense of the inhabitants of any
county, hundred or general division, may, with the consent
and by the order of two justices of the peace acting for the
county in which such bridge is intended to be rebuilt or
repaired first obtained for that purpose, search for, work,
dig, get and carry away any stone in, from or out of any

(rt) This payment of only £10 curredbythe justices is a singular
out of the £20 which may be in- error in the clause.

I 3

1T8 BRIDGES.

quarry whatsoever within the county or counties to which
such bridge may belong, other than and except such quarries
as may be situated within a garden, yard, avenue to a house,
lawn, park, paddock or inclosed plantation, or as may " now
or hereafter " have ornamental timber trees growing thereon,
without the licence or consent of the owner, as such sur-
veyor or persons shall judge necessary for the rebuilding or
repairing of such bridges, provided such quany shall have
been worked within the last three years preceding the time
when such bridge shall b^ about to be rebuilt or repaired,
the surveyor or other persons making such satisfaction and
recompense for the value of such stone, and also for the
damage to be done to such quarry by the getting and carry-
ing away the same, as shall be agreed upon between them
and the owner, occupier or other person interested in such
quarry; and in case they cannot agree, or such owner or
occupier or other person interested shall refuse to treat, then
in every such case the justices of the peace at their general
or quarter sessions, or any two or more of them appointed
for that purpose, fourteen days' notice having been given to
the owner or his agent of the intention to require a jury,
shall cause the value of such stones and amount of such
damage to be inquired into and ascertained by a jury of
indifferent men of the county, riding, division, city, town,
liberty or precinct wherein the same shall be situated, and to
that end shall summon and call before such jury and
examine upon oath (which oath any two or more of such
justices may administer) any person whomsoever, and shall,
by ordering a view or otherwise, use all w^ays and means for
the information of themselves and of such jury in the
premises ; and when such jury shall have inquired of and
ascertained the value of such stones and amount of such
damage, the justices shall thereupon order that the sum or
gums which shall so appear to be the value of such stones
and amount of such damage shall be paid, which verdict or
inquisition shall be filed of record by the clerk of the peace
or other officer having the custody of the records of the
county, riding, division, city, town, liberty or precinct, and
shall be final and conclusive to all intents and purposes
whatsoever against all parties and persons whomsoever
claiming or to claim, in possession, remainder, reversion or
otherwise, their heira and successors, as well absent as
present, infants, lunatics, idiots and persons under coverture
or any other disability whatsoever, corporations, guardians,

CERTIORARI. 179

committees, husbands, trustees and attornies, or any other
person or persons whomsoever.

Sec. 2 provides for the summoning of the jury.

CEMETERIES.

A person wilfully destroying or injuring any building, wall Wilful
or fence belonging to a cemetery, or any tree or plant therein, t^amage to
or disfiguring any wall thereof, or wilfully destroying, in- c^'^®*®^^^^
juriug or defacing, any monument, &c., within the cemetery,
or doing other wilful damage, will be liable to a penalty of £6 :
10 & 11 Vict. c. 65, s. 58. If with imprisonment in default,
see Scale — " Sum. Juris. Act, 1879, s. o."

Under sec. 59, 10 & 11 Vict. c. 65, persons playing a
game of sport in a cemetery, disturbing those attending a
burial, or committing a nuisance in the cemetery, will be
liable to a similar punishment as in s. 58.

But the party convicted may also appeal under the appeal Appeal,
provisions of the Railway Clauses Consol. Act, 1845, 8 & 9
Vict. c. 20, s. 157 j see infra, post, that title.

The right of appeal is given under sec. 62, 10 & 11 Vict,
c. 65, incorporating all the provisions of the Railway Clauses
Act, 1845, respecting the determination of any matter
referred to the justices: see infra, Tit. "Railway Clauses Act."

The information must be laid within six months : 8 & 9
Vict. c. 20, s. 151 ; see also the Sum. Juris. Act, 1879,
infra.

The appellant may elect to appeal under the Sum. Juris.
Act, 1879; see sec. 32 (infra).

CERTIORAIII.

The wTit of certiorari issues from the crown side of the Issue of
Queen's Bench Division. Bac. Abr. 349 ; Com. Dig. Cer- ^^'^t ^^'om
tiorari (a). It is not granted as a matter of right, save on the ^^^^"
application of the Attorney-General in his official capacity,
but rests in the discretion of the court. In re Lord ListoweVs ^°^ °^
Fishery, 9 Ir. R. C. L. 46, Q. B. ; 2 Hawk. P. C. c. 27, s. 27 ; "^ '

(«) Eachof the courts, whether gards sessions practice the writ
of Common Law or Chancery, always issues from the Queen's
could issue the writ ; but as re- Bench.

180

CERTIORAKI.

inferior
courts

In re Mayo County, 14 Ir. R. C. L. 392, Q. B. ; Arthur v.
The Commissioners of Sewers, 8 Mod. 331.
Means of By means of this writ the Queen's Bench exercises its super-
controlling iiitending jurisdiction over other tribunals for quashing or con-
firming their acts. Coke, 4 Inst. 71 ; Bac. Abr. court of K. B.
(A.) 3 s. 42. This jurisdiction is absolute in the court unless
the power to issue the writ be taken away by enactment ;
and even then the right of the Crown will not be aifected
except it be expressly named ; R. v. ^odenham, Cowp. 79 ;
R. V. Barnes, 5 T. R. 628 ; see also an elaborate judgment of
Lord Kenvon in R. v. Cumberland, 6 T. R. 194 ; R. v. Allen,
15 East, 333 ; R. v. Lewis, 4 Burr. 2458 ; R. v. Eaton, 2
T. R. 89 ; In re Lord ListoweVs Fishery (sup.) (a).

Although the writ is not in general as "of right," yet
where the applicant has a peculiar grievance or wrong of his
own, and is not acting only as one of the public (6), he is
entitled to relief ex dehito justitice. R. v. Sun^ey J J., L. R. 5

Granted
where a
grievance

(«) No indictment, except
those against bodies corporate
not authorised to appear by at-
torney (now solicitor) in the
court, can be removed into the
court of Q. B. or into the C. C. C.
by certiorari at the instance of
the prosecutor or the defendant
(except at the instance of the
Attorney-General, as was done in
B. v. Castro, alias Tichhor'tie),
unless it appear that a fair and
impartial trial cannot be had in
the court below, or that some
question of law more than usually
difficult or important is likely to
arise on the trial : 16 & 17 Vict.
c. 30, s. 4.

An indictment against a cor-
poration has been held to be remov-
able as of course, and the prose-
cutor was not bound to enter into
any recognizance : R. v. Man-
cTu'Mer, 26 L. J. M. C. 65 ; 7
E. & B. 453.

When an indictment is removed
to the civil side of the court to be
tried at 7iu-iprius, the judge who
tries the case, by the practice of
the Crown Office, has no power
to amend the indictment by
filtering the plea of '• not guilty "
to one of "guilty," but the ver-

dict of the jury should be taken.
In a case tried at the Surrey
Assize at the Spring Assize, 1878,
Loi-d Coleridge, in R. v. Wallace,
so amended the record, and sub-
sequently the Crown Office re-
fused to recognise such amend-
ment which should have been
alone made in that office, and
much difficulty was occasioned in
restoring the record, and duly
amending it under an order of a
judge.

The sentence on an indictment
when so removed will -be passed
in the subsequent term, or sitting
of the court, when affidavits will
be heard in mitigation or aggra-
vation. This coui-se was adopted
in R. V. Wallace, in which the
author was counsel. A question
as to the passing the sentence in
a criminal case at nisi prius was
considered in R. v. Tftomas, 4
M. &. S. 442, a. p. 8, when an in-
dictment for murder was removed
from the Rochester Q. S., that
court by the Corporate Charter
having then the power to try so
serious a charge. See 14 H. 6, c. 1.

(J) R. V. Taunton, St. Mary,
3 M. & S. 462, 472, per Lord
Ellenborough.

CERTIORARI. 181

Q. B. 466 ; 39 L. J. M. C. 145 ; Foster v. Foster, 4 B. & S.
199; 32 L. J. M. C. Q. B. 314. But the party must not
have prechided himself from taking advantage of the writ
by his own conduct. R. v. South Holland Drainage Com-
mittee, 8 Ad. & E. 429 (a).

Formerly, when technical objections more frequently pre- Writ token
vailed than now, and many orders were quashed wholly away by
irrespective of the merits of the case, it became common to ^?^^+^
insert in statutes that orders and convictions should not be
quashed for error in form, or be removed by certiorari. This
met with general disapproval from the judges : Lord Kenyon
spoke of the taking away the writ as being " too frequent,"
and that it was much to be lamented in a variety of cases
that it was taken away at all. See R. v. Jukes, 8 T. R. 542 —
544, and Erie, J., in R. v. Dichinson, 7 E. & B. 831 ; 2Q
L. J. 204, expressed the opinion of the court to be that the
restoration to the use of the cei'tiorari would be " a salutary
addition to the laws.*'

Although in R. v. Dickinson (supra), the court heard a case
from sessions when the certiorari had been taken away, the
parties having consented to the case being stated for its
opinion, yet in R. v. Chantrell, 44 L. J. M. C. 94 ; L. R. 10
Q. B. 587, the court distinctly held that with or without
consent it had no power to hear a case or issue the writ
where the certiorari had been taken away ; holding in the
words of Patteson, J., in Sanders v. Vanzeller, 4 Q. B. 276,
that the court could not give itself jurisdiction which the
Legislature had in express terms prohibited its having {h).
And the Court, referring to the remarks of Lord Kenyon and
other judges, directed the attention of the Legislature to the
desirableness of an alteration in the law.

Upon the passing of the Summary Jurisdiction Act, 1879 Not re-
it was enacted therein (sec. 40) that " a writ of certiorari or q"ii*ed on

other writ shall not be required for the removal of anv con- ^P®*^^^ _

, ,,*...,. /. - case. Sum,

viction order, or other determmation, m relation to which a juris. Act

special case is stated by the court of general or quarter 1879.

sessions for obtaining the judgment or determination of a

superior court " (c).

The issuing the writ of certiorari was the only means by

(a) See the similar doctrine II. v. Micliaelstone Vedoes, 2 Nol.

under tit. " Appeal. ' P. L. 5.58 ; R. v. Sussex JJ., id.

iP) See also R. v. Carttvorth, (c) See Baines' Act, 12 & 13

5 Q. B. 201 ; R. v. Liverpool Vict. e. 45, s. 11 ; Jervis' Acts, 20

iMayor'), 3 D. & R. 275; i^. v. & 21 Vict. c. 43, s. 2; see tit.

Middlesex J J., 8 D. & R. 117 ; " Special case."

182

CERTIORARI.

Where
court below
acts with-
out juris-
diction.

When an
interested
justice
acts.

which the superior court could bring within its jurisdiction
for review the proceedings of the inferior court ; B. v. Cai'i-
woj-th, 5 Q. B. 201; H. v. Middlesex JJ., 8 D. & R. 117.
And now that such a writ is no longer required in reference
to special cases from quarter sessions, it necessarily follows
that in all cases the sessions may now state a special case,
and the enactments taking away the writ of certiorari will be
of no effect ; see Clarke v. The Assistant Committee, AJderhury
Union, 50 L. J. M. C. 33.

But even in those cases where the certiorari was taken
away by statute, still the court was not deprived of its
inherent jurisdiction where the inferior court manifestly
acted without jurisdiction. R. v. llie Sheffield Ry. Co., 1 1
A. <fe. E. 194; R. v. Boultbee, 4 A. & E. 498; Baylis v.
Strickland, 1 M. & G. 596 ; R. v. Fowler, 1 A. & E. 836 ;
R. V. St. Albans J J., 22 L. J. M. C. 142 ; R.y. Somerset J J.,
5 B. & C. 816 ; R. v. Berkeley, 1 Lord Kenyon Rep. 99 ;
R. V. Derbyshire J J., 2 ib. 209. The writ will also issue
where the court has been illegally constituted ; R, v. The
Cheltenham Commissioners, 1 Q. B, 467; or a conviction has
been obtained by fraud (a); R, v. Gilliard, 12 Q. B. 52;
Terry v. Netuman, 15 M. & W. 653 ; The Colonial Bank of
Australasia v. Willan, 5 L. R. P. C. 417; 43 L. J. P. C.
39 ; 30 L. T. 237 ; 22 W. R. 516 ; see also R. v. Gilliard,
12 Q. B. 527 ; Terry v. Newman, 15 M. & W. 653 ; Ex parte
Bradlaugh, 3 Q. B. D. 509.

So also the writ will issue when justices interested in the
decision have taken part in the proceedings. R. v. The
Cheltenliam Commissioners, 1 Q. B. 467 ; R. v. The Sheffield
Ry, Co., 11 A. & E. 194; Case of Foxham Tithing, 2 Salk.
607. It is a fundamental rule that the party interested in
a cause cannot be judge of it ; aliquis nan debet esse judex
in proprid causd, quia non potest esse judex et pars, Co. Litt.
141 a; Great Clmrte v. Kennington, 2 Str. 1173; i?. v.
Yarpole, 4 T. R. 71 ; i^. v. Guridge, 5 B. & C. 459 ; R. v.
Great Yarmouth, 6 B. & C. 646 ; R. v. Surrey J J., 21 L. J.
M. C. 195. However small the pecuniary interest the justice
should have in the matter in dispute it will disqualify him ;
but mere circumstances from some petty or trivial interest,
from which a suspicion of favour may arise, will not be
sufficient cause to disqualify the justice, on which certiorari

(a) As to the effect of fraud
on judicial proceedings, see R. v.
Alley ne, 4 E. & B. 186 ; Shedden

y. Patrick, 1 Macq. H. L. C. 535 ;
Eyre v. Sm\th, 2 C. P. D. 435 ;
37 L. T. 417 ; 25 W. R. 871.

CEKTIORARI. 183

would be granted. R. v. Rand, L. R. 1 Q. B. 220 ; R. v.
Dean of Rochester, 20 L. J, Q, B. 4G7 > 35 L. J. M. C. 157 ;

Wakefield Local Board of Health v. The West Ridmg and
Grwishy Ry., 35 L. J. M. C. 69 ; L. R. 1 Q. B. 84.

In some instances the statute gives special power to the
justices, who may be interested in some degree, either as
parties rated, or otherwise remotely benefited^ in the matter
of the appeal, jurisdiction to act in the appeal. But they
must not be the parties instituting the proceedings appealed
on. R. V. Weymouth JJ., 48 K J. M. C. 139 ; R. v. Allen,
33 L. J. M. a 243 {a).

Where the objection goes only to a matter of foiTu, as Where
where the hearing was on an unreasonably short notice, or coxnt acts
that there was no proof of summons, or no evidence of the ^"^"^"s^"*
facts charged, the justices otherwise having jurisdiction ; Ex
parte Hoyiuood, 15 Q. B. 121 ; or where the order of sessions
does not make the costs payable to the clerk of the peace,
but to the party directly interested, the certiorari will not be
granted. R. v. Binney, 1 E. & B, 810 ; 22 L. J. M. C. 127.

By 13 Geo. 2, c, 18, s. 5, the writ must be moved or Writ to
applied for within six months next after the conviction, ^^^ moved
iudajment, order, or other proceeding to be removed into the . ^^^ Vi"
superior court ; and it must be proved on oath that the party
suing for the same has given six days notice thereof in writing
to the justice or justices, or to two of them (if so many there
be), by or before whom the conviction, judgment, order, or
other proceeding had been made, to the end that they might
show cause against the issuing of the writ, or granting the
certiorari. This section must be strictly followed in all cases
where the certiorari is required, and where the necessity for
the writ has not been removed by statute. The writ will not
be granted pending an appeal. R. v. Sparrow, 2 T. R. 196 ;
Elliott \. Thompson, 33 L. T. R. 339 (6).

(a) The statutes referred to are The Gas Works Clauses Act,

16 Geo. 2, c. 18, s. 1 & 2— settle- 1871, 34 & 35 Vict. c. 41, s. 46 ;

ment cases : The Highway Act, The lyicensing Act, 1872, 35 <fe 36

1862, 25 & 26 Vict. c. 61, s. 38 ; Vict. c. 94, s. 60; The Fuhlic

27 & 28 Vict. c. 101, s. 46 ; The Health Act, 1873, 38 & 39 Vict.

Union Assessment Act, 1864, 27 c. 55, s. 258).
& 28 Vict. c. 39, 8. 6 ; The Salmon (6) As to trials of indictments,

Fishery Act, 1865, 28 & 29 Vict. see R. v. Pennegoes and Mach-

c. 121, s. 61 ; the 30 & 31 Vict. c. ynlleth, 1 B. & C. 142 ; 16 & 17

115, s. 2, the justice being a Vict. c. 30, ss. 4 — 8 ; 24 <k 25 Vict,

municipal ratepayer (see Wake- c. 95. The 13 Geo. 2, c. 18, does

fxld Board oj Health v. West not extend lo indictments : \K. v.

Riding 4" OriTnshy Ry. Co., 35 Battavis, 1 East 298.
L. J. M. C. 69 ; L. R. 1 Q. B. 84 ;

184 CERTIORARI.

When the The time of six months runs from the making the order
six months of sessions in the appeal, and it becomes operative : E. v.
dates from. Middlesex, 5 A. & E. 626 ; B. v. Morice, 1 N. Sess. Cas. 585.
And from the day the order is made, and not from the first day
of the sessions: E. v. Abergele, 5 A. & E. 795; see also Elliott
V. Thompson, 33 L. T. 339 ; 24 W. R. b^, Q. B. D. The suing
for the certiorari within the six months is imperative ; R. v.
Cartworth, 5 Q. B. 201 ; R. v. Staffordshire J J., 1 D. P. C.
484; M. V. Sussex JJ., 1 M. & S. 631 ; R. v. Bloxham, 1
A. & E. 386, As to making the application on the last day
of the six months, and no judge in town, see R. v. aS'^. Mary,
WhitecJmpel, 2 D. N. S. 964 ; R. v. Hodgson, 12 W. K 424
(Cockbum, C. J.). When, however, the party prosecuting
the writ was obliged to go to sea, which rendered him unable
to enter into his recognizance, the court enlarged the time
for the return of the writ : £Jx parte Tomlinson, 20 L. T. 324.
And where the writ had been allowed on an insufficient
recognizance, the court quashed the allowance, and enlarged
the return of the wTit, sending it back to the sessions that it
might be duly allowed after the parties had entered into the
proper recognizance : R. v. Abergele, 5 A. & E. 795.
Six days' The service of the six days' notice in writing, of the
notice to intention to apply for the certiorari, must be made on the
justices, justices, or two of them (if so many there be), who were
present and by whom the order, <fcc., was made. R. v. Rattis-
law, 5 D. P. C. 539 ; R. v. Cartworth, 5 Q. B. 201 ; R, v.
GUberdike (Inks.), 5 Q. B. 207; R. v. West Riding, 1 N. Sess.
Cas. 406. Where an interested justice has taken part in the
judgment, see R. v. Suffolk JJ., 21 L. J. M. C. 169. In
On the boroughs the notice would be served on the Recorder as the
Recorder as g^ig j^^^jg^ • 5 & 6 Will. 4, c. 76, s. 105. The notice should
so e ju( ge. g^g^^g ^jjgj^^ j^ jg given by the party prosecuting the writ, and
state who he is : R. v. How, 11 A. & E. 159 ; ^. v. Cam-
bridgeshire JJ., 3 B. & Ad. 887 ; ^. v. Lancashire JJ.,
4 B. & A. 289. Signature by a solicitor, acting as solicitor
for the applicant, is sufficient : R. v. Solly, 9 D. P. C. 115;
R. V. Wiltshire, ib. 524; R. v. Suffolk JJ., 21 L. J. M. C. 169;
18 Q. B. 416 ; R. v. Abergele, 5 A. & E. 795 ; R. v. Lanca-
shire, 11 A. & E. 144; R. v. Westmoreland, 3 D. N. C. 178.
As to a signature by the solicitor's clerk, see R. v. Kent, L. R.
Q. B. 305 ; 42 L. J. M. C. 112 ; 21 W. R. 635. A signature
by one churchwarden, " on behalf of the churchwardens and
overseers of," &c., is not sufficient: R. v. Cambridgeshire J J.,
3 B. & Ad. 887 ; R. v. Lancashire, 4 B. & A. 289 ; 11 A. & E.
144.

CERTIORARI. ] 85

In computing the six days of notice of motion, one will be Computa-
inclusive and the last exclusive : R. v. West Riding, 4 B. & ti^n of the
Ad. 685 ; R. v. Goodenough, 2 A. & E. 463 ; and should the ^^"^ '^^y^*
notice appear to be too short on the face of it, the fact that
the motion was not made until after the six days will not
cure the defect : Re Flounders, 4 A. & E. 865. The usual
form of notice is to move " in six days from the giving of this
notice, or as soon thereafter as counsel can be heard " : R. v.
Rose, 3 D. & L. 359. Without sufficient notice the court will
quash the writ : R. v. Nicholls, 5 T. R. 280, n. The writ
must be sued out by the party who gives the notice ; it
cannot be abandoned and taken up by another party : R. v.
Kent JJ., 3 B. & Ad. 250.

The affidavit on the motion should show that the party Affidavit on
prosecuting is he who gave the notices to the justices : R. v. motion.
Lancashire, 4 B. & A. 289 ; R. v. How, 11 A. & E. 159. And
that the persons sei'ved were justices of the county, kc, and
that they were present when the order was made : R. v.
Cartworth, 5 Q. B, 201. And that the order was made by or
before them : R. v. Barton, 2 D. & L. 492. A subsequent
affidavit will not cure the defect : R. v. Gilberdike, 5 Q. B.
207 ; nor the caption of the order: R. v. St. Jameses, Colchester,
20 L. J. M. C. 203. Where, however, the order of the
sessions had been made ex parte, and the copy served on the
opposite party stated the name of the justices in the caption,
and the order was made on them, there would be primd fade
evidence : j^. v. Sevenoaks, 7 Q. B. 144.

The affidavits should be simply entitled, " In the Queerus How en-
Bench Divisicm",' Ex parte Nohns, 1 B. & C. 267. If entitled titled.
in any cause, the affidavits cannot be read : Ex parte Wall-
ivorh, 4 D. & L. 403 ; 10 Jur. 967 ; ^. v. Cheesemore,
12 Jur. 11.

The certiorari may issue ex parte in vacation. A fiat of a May issue
judge in chambers may be granted in the first instance ex parte,
without a rule to show cause : R. v. Newton Ferrers, 9 Q. B.
32, overruling R. v. Chipping Sodbury, 3 Nev. & M. 204.

The rule is absolute in the first instance in misdemeanours, Absolute,
and " wm" in felonies : 8 Dowl. P. C. 127.

Where there is an immaterial variance between the con- Variance
viction and the statement in the certiorari, see R. v. Turk, with con-
10 Q. B. 540; 16 L. J. M. C. 114. miction.

In the recent case, Clarke v. the Assistant Committee of the Costs.
Alderhury Union, 50 L. J. M. C. 33, 35, the proceedings on a
case stated from sessions after the Summary Jurisdiction
Act, 1879, were held to be within the General Orders of

186 CERTIOKARI.

1880, Order LXII. as to costs. Costs follow the event, see
Venables v. Hardman^ 1 EIL & Ell. 79 ; but where points
were raised on both sides, Lord Campbell, C. J., said, ''the
ceHiorari must be considered as having been prosecuted by
both parties, and, consequently, neither would be entitled to
costs." R. V. the Southampton Dock Co., 17 Q. B. 83; 20
L. J. M. C. 228.
Practice Since the Summary Jurisdiction Act, 1879, the whole

under Sum. practice for bringing up special cases from sessions is altered,
1879 " ^ ^^^ ^^ y^^ "^ rules have been made to regulate the trans-
mission of such special cases ', but from the above case of
Clarke v. Aldei^hury Union, it would seem that the clerk of the
peace should transmit the case to the Crown office, w^hen
complete ; the limit of time and the authorities bearing on
the issuing of the writ within six months under the statute,
13 Geo. 2, c. 18, s. 5, will no longer avail.
Lodgment Upon the lodgment of the case at the Crown Office, the
of case, following rules pursuant to 6 Vict. c. 20, will apply : —

By Cr. Off. N. R. r. 22, in all cases of orders removed into
the Queen's Bench from any inferior jurisdiction the same
shall be put into tJie Crown paper for argument upon a rule
to show cause why such order should not be quashed. The
rule nisi will be granted on counsel's signature to a motion
paper entitled, " In the Queen's Bench. The Queen against

," (the party removing the order, who is now called

the defendant). Notice of this rule must then be given to
the two justices, and to the opposite party (who is now called
the prosecutor). Although by Cr. Off. N. E, r. 22, in all
other cases the conviction or other proceedings intended to be
argued shall be put into the Grown paper on a rule for a
concilium, which rule shall specify the day on which the
case will be put into the paper for argument, and shall be
drawn up and served six days at least before such day within
forty miles of London and eight days in all other cases.

By Cr. Off. N. K. r. 23, the prosecutors are to deliver a
paper hook of the proceedings, together with a copy of the rule
nisi to quash, to each of the two senior judges, and the other
side to the other two judges, two days before the day on
which the case will be put in the paper for argument. On a
special case from sessions no points should be stated in the
margin.

All the counsel in support of the order, i.e., showing cause
against the rule, are heard first, and then all the counsel for
the defendants in reply. If the order is quashed costs are
seldom gi-anted. If the order is confirmed the costs should

CHURCH. 187

be taxed by the master at the Crown office, and an allocatur
given upon a side bar rule.

For the service of the writ on justices, see ante, p. 15.

CHIMNEY-SWEEPER.

Any person allowing any child or person under twenty-one
years of age to enter a chimney for the purpose of sweeping,
cleaning or curing the same, or for extinguishing any fire
therein, 3 & 4 Vict. c. ^5, s. 2, will be subject under 27 & 28
Vict. c. 37, s. 9, to a penalty not exceeding £10, or in lieu
thereof to six months' imprisonment ; (see scale under Sum-
mary Jurisdiction Act, 1879, s. 5, infra), A licensed chimney-
sweeper on conviction may have his certificate suspended for
the residue of the year ; see 38 & 39 Vict. c. 70, s. 20,
" The (Jhimney-Sweepers Act, 1875." See the Chimney-
sweepers Regulation Acts, 1840, and 1864.

An appeal is allowed under 3 & 4 Vict. c. 85, s. 11, to the
person aggrieved against a conviction to the next court of
quarter sessions to be held not less than twelve days after
the day of the conviction for the jurisdiction wherein the
conviction or cause of complaint arose. Notice in writing
of such appeal is to be given to the complainant, and of the
cause and matter thereof, within three days after the con-
viction, and seven clear days at least before such sessions;
The defendant will remain in custody or enter into recog-
nizance with two sureties conditioned to personally appear at
the sessions and try the appeal ; and the Court, " in case of
the dismissal of the appeal or affirmation of the conviction,
shall order and adjudge the offender to be punished accord-
ing to the conviction," and to pay the costs. This section
also applies to convictions under 27 & 28 Vict. c. 37. See
also the proceeding on appeal against convictions under the
Summary Jurisdiction Act, 1879, ss. 31, 32, infra, and under
which the appellant may elect to appeal.

CHURCH.

Under 23 <fe 24 Vict. c. 32, s. 2, any person guilty of riot-
ous, violent, or indecent behaviour in any cathedral, church,
or chapel of the Church of England, or in any place of
religious worship duly certified under the 18 <fe 19 Vict, c, 81,

188 COMMONS INCLOSURE ACT.

whether during divine service or at any other time, or in
any churchyard, or burial ground ; or who shall molest, let,
disturb, vex or trouble, or by any other unlawful means dis-
quiet or misuse any preacher duly authorized to preach
therein, or any clergyman in holy orders ministering or cele-
brating the sacrament, or any divine service, rite or office in
any cathedral, church, or chapel ; or in any churchyard or
burial ground, will be liable to a penalty not more than £5,
or imprisonment not exceeding two calendar months. (See
scale under Summary Jurisdiction Act, infra.) The informa-
tion must be laid within six months: 11 & 12 Vict, c. 43, s. 11.

An appeal is given (sec. 4) to the person so convicted in
the same words as in the 3 & 4 Vict. c. 85, s. 11, in relation
to chimney sweepers (see ante) ; and see also (infra) Sum-
mary Jurisdiction Act, 1879, ss. 31 and 32, under which he
may elect to appeal.

It has been held that the interrupting a clergyman collect-
ing alms of the congregation during a communion service is
not within the protection of the Act. Cope v. Barber and
others, 41 L, J. M. C. 137. It would seem to be the duty of
the churchwarden to make the collection. See Hutchings v.
DenzUoe, 1 Hagg. Cons. 170 ; see also Burton y. H€nso7i, 11
M. & W. 105 ; 11 L. J. Exch. 348 ; Worth v. Terrington, 13
M. & W. 781 ; 14 L. J. Exch. 133. See also 1 Mary, sess. 2,
c. 3, s. 7 ; 1 EHz. c. 2 ; 1 W. & M. c. 18, s. 15 : Ruffhead,
1 W. ik M. sess. 1, c. 18, s. 18.

COMMONS INCIiOSURE ACT.

8&9 Vict. c. 118.

Discontinu- Under sec. 62, 8 & 9 Vict. c. 118, before the valuer, acting

ance aud j^ ^\^q matter of any inclosure, shall proceed to make, set

iiD Meh^ out or widen any public roads and ways in or over any lands

ways. to be inclosed, and stop up, divert, or alter any of the roads

or ways passing through the land to be inclosed, or through

any old inclosures in the parish or respective parishes in

which the land to be inclosed is situate (and the soil of such

roads and ways so to be discontinued and stopped up as

pass through the lands to be inclosed shall be deemed part

of the lands to be inclosed), the valuer shall cause to be

affixed at each end of such road or way a notice (under his

hand, sec. 162,) to the effect that the same is intended to be

discontinued, stopped up, diverted or altered, as the case may

COMMONS INCLOSURE ACT. 189

be, from and after a day to be mentioned in the notice. The
valuer is also to advertise the same notice for four successive
weeks (which advertisement, by sec. 162, is to be in some
newspaper printed and usually circulated in the county in
which the land to which it relates is situate), and also on the
church-door on the four Sundays of the same successive
weeks (which by sec. 162, is to be done by affixing the same
on the principal outer door of the church of every parish and
ecclesiastical district in which the land subject to be inclosed
or other land to which such notice may relate or any part
thereof may be situate, on Sunday before divine service :
and when there is no such church, then the notice is to be
affixed in some conspicuous place in the parish or ecclesiastical
district on Sunday before ten o'clock in the forenoon). And
after such notices shall have been so given, such road or way
will, from the day mentioned in the notice, be deemed to be
discontinued, stopped up, diverted or altered, subject how-
ever to the right of appeal under sec. 63.

By sec. 63, any person, within four months after the first Appeal.
Sunday on which such notice shall have been given on the
church-door, in accordance with sec. 62, may make his
appeal to the Court of Quarter Sessions for the county,
riding, division, or other jurisdiction m which such road or
way, or the greater part thereof shall be situate, upon giving
the valuer fourteen days' notice in writing of such appeal,
together with a statement in writing of the grounds thereof;
and it will not be lawful for the appellant to be heard in
support of his appeal, unless such notice and statement
shall have been so given; nor will he be allowed to give
evidence of any other grounds of appeal than those set forth
in such statement.

The fourteen days' notice will be one day inclusive, and Notice,
one day exclusive: R. v. Yorkshir^e JJ., 2 B. & C. 228;
4 B. & Ad. 685 ; B. v. Bucks JJ., 2 M. & S. 230 ; E. v.
Gloucester J J., 3 ib. 127.

The appeal need not necessarily be heard within the four Hearing,
months : R, v. Essex, 34 L. J. M. C. 41. But should be
made within the limited time: R. v. Wilts J J., 13 East,
352 ; R. V. Dean Inclosure, 2 M. <fe S. 80. The sessions are
bound to receive the appeal, but not to respite after the
limitation has expired : R. v. Derby, 4 T. R. 488.

In case of such appeal, the matter at issue will be tried
by the verdict of a jury, under sec. 647; and the issue will
be whether the road or way in question is unnecessary, or
may, beneficially to the public, be discontinued, stopped up,

190

COMPANIES COXSOLIDATED CLAUSES ACTS.

Certificate
of comple-
tion to be
filed at
Quarter
Sessions.

Proceed-
ings con-
clusive.

Exception.

diverted, or altered, and would the party appealing be
injured or aggrieved thereby; and on a verdict against the
appeal, the court will dismiss the appeal, and award the
costs of resisting the appeal to be paid by the appellant to
the valuer. But should the jury return a verdict in favour
of the appellant, the appeal shall be allowed with costs.
Where the surveyor of highways is the appellant, under the
direction of the vestry (now the local authority, Public
Health Act, 1875, s. 144), the cost of prosecuting the appeal
will be paid out of the highway rate.

As soon as two justices have certified that such public
roads have been sufficiently formed and completed, they will
thenceforth be kept in repair as public roads; and every
such certificate shall, at the quarter sessions to be held for
jurisdiction (a) in which the road is situate, next after the date
of the certificate, be filed of record by the clerk of the peace.

Where the highway has been stopped up or altered under
the above sections, the proceedings are conclusive. The
only remedy to a party aggrieved is by his right of appeal :
Gwyn V. Hardwicke, 25 L. J. M. C. 97.

But where there had existed a right to take water from
an ancient well, that right was held not extinguished by
the extinction of the right of way to it : Eace v. Ward,
26 L. J. Q. B. 133.

COMPANIES COWrSOLEDATED CLAUSES ACTS.

Commissioners Claiises Act, 1847.

Any overseers, rate collectors, «fec., neglecting to attend
^the commissioners at the elections, with the rate-books, or
other documents (and for which purpose the returning officer
may summon them), to test the qualification of the voters,
will be liable to a penalty of not more than £20, 10 & 11
Vict. c. 16, s. 27; or imprisonment under the scale in the
Summary Jurisdiction Act, 1879 : in/ray tit. "Summary
Jurisdiction Act."

The information is to be made within six months :
8 & 9 Vict. c. 20, 8. 151.

As to the appeal on a conviction in the metropolitan
district, see sec. 106 of 10 & 11 Vict, c, 16,

(a) In the Highway Acts
" limit " is used in the place of
jurisdiction, see jjost, " Highway

Acts," where the definition of
*' limit " is discussed.

COMPANIES CONSOLIDATED CLAUSES ACTS. 191

Appeal Clauses.

The Companies Clauses Consolidation Act, 1845, 8 <fe 9
Vict. c. 16, s. 159 ; the Lands Clauses Consolidation Act,
1845, 8 & 9 Vict. c. 18, s, 146; the Railway Clauses Con-
solidation Act, 1845, 8 & 9 Vict. c. 20, s. 60, applying to an
appeal against the consent of justices to the making a level
crossing over a highway, other than a public carriage-way ;
and sec. 157, to an appeal against a conviction for penalties
and forfeitures, are each in the following form : —

If any party shall feel himself aggrieved by any determina-
tion or adjudication of any justice with respect to any penalty
or forfeiture under the provisions of this or the special act, or
any act incorporate therewith, such party may appeal to the
general quarter sessions for the county or place in which the
cause of appeal shall have arisen ; and no such appeal shall
be entertained unless it be made within four months next
after the making of such determination or adjudication, nor
unless the ten days' (a) notice in writing of such appeal,
stating the nature and grounds thereof, be given to the party
against whom the appeal shall be brought, nor unless the
appellant forthwith after such notice enter into recog-
nizances, with two sufficient sureties, before a justice con-
ditioned duly to prosecute such appeal and to abide the
order of the court thereon.

The following statutes are incorporated with one or other
of the above Acts, and to which the appellate section
applies : —

The Markets and Fairs Act, 1847, 10 & 11 Vict. c. 14, s. 52.

The Gas Act, 1847 .

)>

>>

c.

15, s.

40.

The Commissioners Act, 1847

j>

>j

c.

16, s.

104.

The Water Works Act, 1847

»

j>

c.

17, s.

85.

The Harbour, Dock and Piers

Act, 1847 .

))

))

0.

27,8.

92.

The Towns Improvement Act,

1847

>>

»

c.

34,8.

210.

The Cemeteries Act, 1847 .

)}

11

c.

65, s.

62.

The Towns Police Act, 1847

»

»

c.

89,8.

73.

(a) The fourteen days' notice appeal being in reference to a

under Baines' Act will not here conviction ; see tit. *' Sum. Juris,

apply as in R. y. Maule, 41 L. J. Act " ; Baines' Act, s. 2.
M. C. 47; 23 L. T. 859, the

192

CONSPIRACY AND PROTECTION OF PROPERTY ACT, 1875.

Amend-
ment as to
trade dis-
putes. ■ . ■

Breach of
contract
by pei"son
employed
in supply
of gas orj
water.

Breach of
contract
involving
injury to
life or i)ro-
perty.

OONSPIRACY AND PROTECTION OF PROPERTY

ACT, 1875.

38 & 39 Vict. c. 86.

Under this Act, by sec. 3, an agreement or combination by
two or more persons to do or procure an act to be done in
contemplation or furtherance of a trade dispute between
employers and workmen shall not be indictable as a con-
spiracy, if such act committed by one person would not be
punishable as a crime.

•Where a person is convicted of any such agreement or
combination to do or procure to be done an act which is
punishable only on summary conviction, and is sentenced to
imprisonment, the imprisonment shall not exceed three
months, or such longer time, if any, as may have been pre-
scribed by the statute for the punishment of the same act
when committed by one person.

Where a person employed by a municipal authority, or a
company or contractor on whom is imposed by Parliament
the duty of supplying any city, borough, town or place with
gas or water, wilfully and maliciously breaks his contract of
service with his employer, knowing or having reasonable
cause to believe that the probable consequences of his so
doing, either alone or in combination with others, will be to
deprive the inhabitants of that city, &c., or part, wholly or
to a great extent of their supply of gas or water, he shall on
conviction by a court of summary jurisdiction or on indict-
ment be liable to pay a penalty not exceeding £20, or to im-
prisonment for not exceeding three months with or without
hard labour. (Sec. 4.)

A copy of sec. 4 is to be posted (a) up at the gas or water
works where it can be conveniently read by those employed
on the works : on the failure to do so the authority will be
liable to a penalty not exceeding £5 a day during the con-
tinuance of the default (ib).

Where by such breach of contract the employer knows, or
has reasonable cause for believing, that the probable conse-
quence will be to endanger life, or cause serious bodily injury,
or to expose valuable property, real or personal, to destruc-
tion, or serious injury, he will be liable on conviction before

(a) Any person defacing this notice will be subject to a penalty
of 40*.

CONSPIRACY AND PROTECTION OF PROPERTY ACT, 1875. 1 0^3

a court of summary jurisdiction, or by in(Jictment, to a. *

penalty not exceeding £20, or to three months' imprisoncaent
with or without hard labour (sec. 5).

Where a master, legall}'^ liable to provide for his servant or Master
apprentice necessary food, clothing, medical aid "or lodging, negle ting
wilfully and without lawful excuse, refuses or neglects- to ^^^^^ ^^ ^
provide the same, whereby the health of the servant or to appreu-
apprentice is or is likely to be seriously or permantly injured, ticfe or
he will be liable on summary conviction to a penalty of not,^®^'^^'^*'
exceeding .£20, or to be imprisoned for not exceeding six *
months, with or without hard labour (sec. 6).

Every person who, with a view to compel any other per-' Intimida-
son to abstain from doing or to do any act which such other tion of
person has a legal right to do or abstain from doing, wrong- ^°^ ^^^'
fully and without legal authority; —

1. Uses violence to or intimidates such other person, or his
wife or children, or injures his property; or

2. Persistently follows such other person about from place
to place ; or

3. Hides any tools, clothes, or other property owned or
used by such other person, or deprives him of the use
thereof; or

4. Watches or besets the house or other place where such
other person resides or works, or carries on business, or
happens to be, or the approach to such house or place ; or

5. Follows such other person with two or more other per-
sons in a disorderly manner in or through any street or
road ;

Shall, on conviction by a court of summary jurisdiction,
or on indictment, be liable either to pay a penalty not ex-
ceeding £20, or to be imprisoned for a term not exceeding
three months, with or without hard labour.

The attending near the house, &c., in order to obtain or
communicate information is not " a watching or besetting"
within the section (sec. 7).

Where a pecuniary penalty is imposed under any other Reduction
Act relating to employers and workmen, such penalty may ^^ penalties
be reduced to any sum not less than one-fourth of the acts^'^^ ^^
penalty imposed by the Act (sec. 8).

Where a person is charged under this Act with an offence Defendant
punishable with a penalty amounting to £20, or imprison- ^*y ®^^'r*^
ment, he may object to be tried by a Court of Summary Juris- ^ ^.^''^e*
diction, and the court may then deal with the case as if it
were an indictable offence (sec. 9).

Sec. 12 gives the right of appeal to a party aggrieved to Appeal.

194 CONSTABLE.

the Quarter Sessions, for the jurisdiction in which the cause
of appeal arises, holden not less than fifteen days, and not
more than four months after the decision from which the
appeal is made.

Within seven days after the cause of appeal has arisen,
notice of appeal with the grounds must be given to the other
party and to the Court of Summary Jurisdiction. See
Curtis V. Bms S. C. Exp. Curtis, 3 Q. B. D. 13 ; 47 L. J.
M. C. 35, as to the service of the notice of appeal personally
on the justices; ante, pp. 73, 122.

Immediately after such notice the appellant must enter
into his recognizance to try his appeal, on which if in
custody he will be released.

The appeal may be adjouraed, and on the hearing the
court may confirm, reverse, or modify the decision of the
Court of Summary Jurisdiction or the case may be remitted
to the court below with the opinion of the Court of Appeal
thereon ; or the court may make such other order as the
Court of Appeal may think just. If the matter be remitted
to the Court of Summary Jurisdiction, that court shall
thereupon rehear and decide the information in accordance
with the opinion of the Court of Appeal.

See sec. 32 of the Summary Jurisdiction Act, giving
the parties the optional right to appeal under either Act.
Tit. " Summary Jurisdiction Acts " {infra).

CONSTABLE.

High Constable.

The ancient office of high constable mentioned in the stat.
of Winton, 13 Ed. 1, st. 2, c. 16, was of great importance.
He was appointed by the sheriff at his court, the Toum
(4 Inst. 265), unless there was a feudal lord who held
a court leet.

In some instances the office was held for life, and in
virtue of it he w^as collector of the county rate, in which case
the sessions could require him to find security. In re Lodge^
2 A. & E. 123 : and see 15 & 16 Vict. c. 81, s. 37.

By 32 & 33 Vict. c. 47, the High Constables Act 1869, s. 2,
the sessions were empowered to discontinue the office on any

CONSTABLE. J 95

vacancy, excepting where the high constable was the re-
turning officer for a parliamentary or municipal election.
And upon such vacancy and abolition, the duty of collecting
the rates is transferred to the Poor Law Guardians ; ib. ss.
25, 36.

The previous statute 7 (fe 8 Vict. c. 33 provided that upon
a vacancy occurring in the office by the expiration of his
appointment or otherwise, the guardians of the union were
made the collectors of the county rate, police rate, or other
rate in the nature of the county rate. This was repealed as
to county rates by 24 & 25 Vict. c. 104, but the enactment
now in force, 15 & 16 Vict. c. 81, ss. 25, 36, contains a
similar provision for transferring the collection to the
guardians.

7 (fe 8 Vict. c. 33 is now for all purposes repealed by 32 &
33 Vict. c. 47, s. 4 (The High Constables Act, 1869), and
the chief constable, or other acting chief officer of police for
the time being of the county in which the hundred is situate,
is substituted for the high constable.

Constable (Parish),

Under 5 Geo. 4, c. 83, an Act for the punishment of idle Pai-ish
and disorderly persons and rogues and vagabonds, a constable constables
who refuses or wilfully neglects to take a person offending neglecting
under the Act as a rogue and vagabond, or who shall not use ^ ^'
his best endeavours to apprehend and convey before some
justice any person he shall Jind so offending, will be deemed
to have neglected his duty, and be liable to a penalty for any
such offence not exceeding £5, or imprisonment not exceeding
three months (sec. 6).

Section 14 gives the right of appeal to any person aggrieved Appeal,
by any act, or determination of any justice out of sessio7is
concerning the act, to the next court of quarter sessions, for
the jurisdiction in which such justice shall have acted, on
giving to the justice or justices whose act or determination
shall be appealed against notice in writing of such appeal
and the grounds thereof within seven days after such act or
determination, and before the next general or quarter sessions,
and entering within " such " seven days (a) into a recog-
nizance with sufficient security personally to appear and

(a) The last antecedent ** seven the usual time is intended as
days " is here those be/ore the within the seven days after the
session ; but it is presumed that determination appealed on.

K 2

196 CONVICTS.

prosecute such appeal. And on the hearing the court shall

make such order as may seem meet, and may issue the

necessary powers for the apprehension and punishment of the

offender.

Constable See also the appeal clauses, 31 & 32, in the Summary

bound to Jurisdiction Act, 1879 {infra). 5 Geo. 4, c. 83, ss. 3 & 6,

act where ^i^^ij^e it an offence as a vagrant for a man to neerlect the

husband

neo'lectsi his ^maintaining his famil3^ But the constable is not bound

family^ to arrest him as "found offending against the Act" without

a warrant ; his guilt or innocence might depend on a variety

of circumstances not apparent to the eye ; see Hoidey v.

Rogers, 29 L. J. M. C. 140 ; 2 L. T. N. S. 171.

CONVICTS.

A convict holder of a licence (or ticket-of leave) not pro-
ducing his licence when required may be subject to not
exceeding three months' imprisonment, with or without hard
labour ; 27 & 28 Vict. c. 47, s. 5. So if he breaks the con-
dition of his licence 5 34 & 35 Vict. c. 112 (Prevention of
Crimes Act, 1871), s. 4 ; or does not report himself to the
police after he has been in a place for forty-eight hours,
the like imprisonment for twelve months, sec. 5 ; and as to
special offences committed by persons after being twice con-
victed of crimes, see sec. 7. For the appeal, see the Sum.
Juris. Act, 1879, sees. 19, 31. As to procedure before the
Court of Sum. Juris., see 34 & 35 Vict. c. 112, s. 17.

CRIMINAL LAW. 197

CRIMINAIi liAW.

The Larceny Act, 24 d; 25 Vict. c. 96 ; the Malicious Injury
to Property Act, 24 & 25 Vict. c. 97.

The appeal clauses in the two above acts are alike in Appeal
words, and are here set out independently of a statement clauses.
of the numerous offences under the acts, which form the
major part of Archbald's Criminal Practice, and to which
reference is made. The appeal clauses, sec 110 of c. 96, and
sec. 68 of c. 97, are not in that work, and are to the following
effect : —

In all cases where the sum adjudged to be paid on any 24 k 25
summary conviction shall exceed <£5, or the imprisonment ^ict. c. 96,
shall exceed one month, or the conviction shall take place 97 Jo^'
before one justice only, any person who shall think himself '
aggrieved by any such conviction may appeal to the next
[practicable,] court of general or quarter sessions, holden not Sum.
less than twelve days after the day of such conviction, for Juris. Act
the county or place wherein the cause of complaint shall in
have arisen ; provided that such person shall give to the
complainant a notice in writing of such appeal, and of the
cause and matter thereof, within three days after such con-
viction, and seven clear days at least before such sessions,
and shall either remain in custody or enter into a recogniz-
ance with two sureties to appear and try such appeal, and
abide the judgment of the coiirt, and pay the costs, or make
a deposit of money.

The court will hear and determine the appeal, and on the
affirmation of the conviction the court shall order the offender
to be punished according to the conviction, and pay the cost
awarded, or issue process if necessary. Any balance of
money deposited by the convicted party will be repaid to
him. Where the conviction is quashed, the clerk of the
peace shall forthwith endorse the same on the conviction ;
and a copy of such memorandum added to the copy convic-
tion will be sufficient evidence thereof. See also Sum. Juris.
Act 1879, s. 32.

198 COSTS.

COSTS.

By statute The sessions have no general power at common law to
onhj. award costs. The power is given by the various statutes.

8&9Wil}. The 8 & 9 Will. 3, c. 30, was passed ''for the more

3, c. 30. effectual prevention of vexatious removals and frivolous

appeals," and sec. 3 enacts " that the justices of the peace of
any county or riding, in their general or quarter sessions of
the peace upon any appeal before them to be had concerning
the settlement of any poor person, or of any proof before
them, there to be made, of notice of any such appeal to have
been given by the proper officer to the churchwarden or
overseers of the poor of any parish or place (though they did
not afterwards prosecute such appeal) shall at the same
quarter sessions award and order to the party, for whom and
in whose behalf such appeal shall be determined, or to whom
such notice did appear to have been given, as aforesaid, such
costs and charges in the law as by the said justices in their dis-
cretion (a) shall be thought most reasonable and just, to be paid
by the churchwardens, overseers of the poor, or other person
against whom such appeal shall be determined, or by the
person that did give such .notice as aforesaid."
4 & 5 Will. By 4 & 5 Will. 4, c. 76, s. 82, the court may order and

4, c. ib. direct, if they think fit, the parish {b), against whom an

appeal shall be decided, to pay to the other such costs and
charges as may appear just and reasonable, and shall certify
the amount thereof; and if the overseers of the parish liable
to pay the same, upon demand and upon the production of
such certificate, shall refuse or neglect to pay the same ; the
amount may be recovered from such overseers in like manner
as any penalties are recoverable under Jervis's Act, p. 203.

And by sec. 83, where either of the parties have included
in the order or statement any grounds of removal or appeal,
which shall in the opinion of the justices be frivolous or

(a) See i?. v. Glamorganshire infra, p. 153.
JJ., 19 L. J. M. C. 172 (per (5) See 39 & 40 Vict. c. 61, s.

Coleridge, J.), the sessions when 25, under which the guardians of

acting on a fixed rule for all a parish, when authorised by the

cases to allow no more than 40,?. L. G. B., may apply for or defend

costs do not necessarily exercise appeals against orders of re-

a discretion in only allowing the movals, with the like powers and

40.?. ; and a mandamus will go to subject to the like liabilities as

them to consider what r(9fl,w/mJ/(? guardians of a union are subject

costs should be granted : R. v. to in respect of such orders.
2\otting7iam, N. S. C. 422; see

COSTS. 199

vexatious, such party shall be liable, at the discretion (a) of
the court, to pay the whole or any part of the costs incurred
by the other party in disputing any such grounds, such costs
to be recovered as penalties under Jervis's Act, p. 203.

Baines' Act (12 & 13 Vict. c. 45), s. 5, enacts that "upon Baiues'
ayiy appeal to any court of general or quarter sessions of the Act, 12 &
peace, the court before whom the same shall be brought may, ^^ \'^*- ^
if it think fit, order and direct the party or parties against ^ * i* '
whom the same shall be decided to pay to the other party or ^pTuca-
parties such costs and charges as may to such court appear tion.
just and reasonable, such costs to be recoverable in the
manner provided for the recovery of costs upon an appeal
against an order or conviction " (6). And, for more effectual
prevention of frivolous appeals, sec. 6 enacts, " that any -r, .. ,
court of general or quarter sessions of the peace, upon proof j^pp^j^jg^
of notice of any appeal to the same court having been given
to the party or parties entitled to receive the same, though
such appeal was not afterwards prosecuted or entered, may,
if it so think fit, at the same sessions for which such notice was
given, order to the party or parties receiving the same such
costs and charges as by the said court shall be thought
reasonable and just to be paid by the party or parties giving
such notice, such costs to be recoverable in the manner last
aforesaid.

Although the Justices may be the formal parties as re- The real
spondents in an appeal, the " party " mentioned in sec. 5^"t^"o*
means the informant at whose instance the complaint has nominal
been made: i?. v. Smith, 29 L. J. M. C. 216; ^. v. -^^^^« the^pai-ty
J J., 1 B. & Ad. 659 ; although the informant may not have to the
appeared to support the conviction : H. v. Purdei/, 34 L. J. appeal.
M. C. 4. The same decision was held on an appeal on a con-
viction under the Criminal Law Amendment Act, 34 & 35
Vict. c. 32, s. 3. So the real prosecutor is entitled to his
costs though his name may not be on the indictment : B. v.
Sharpness, 2 T. R. 47 ; i?. v. Kettleworth, 5 T. R. 33. See
also R. V. Cook, 1 F. & F. 389 ; R, v. Yates, 7 Cox, C. C. 363.
As to the substantial respondent in an appeal on an order of
removal, see R. v. Chatham, 17 L. J. M. C. 262 ; 12 Q. B.
300. See this case, tit. "Appeal," p. 114.

A surveyor of a local board of health who has laid the
information is not liable for costs, but the local board is :
R. v. Davidson, 24 L. J. M. C. 22. An order for payment of

(rt) R. V. Glamorganshire JJ., (J)) This has reference to 11 &

svj). 12 Vict. c. 43, s. 27 ; ^lost, p. 20J,

200

COSTS.

The Court's
implied
jurisdiction
to give
costs by
act of
appellant.

Appeal
to wrong
sessions.

On aban-
donment
of the
appeal.

costs cannot be made against the convicting justices : JR. v.
Goodall, L. R 9 Q. B. 557.

Where a party brings himself before the court he impliedly
submits himself to its jurisdiction for costs: Peters v. Sheehan,
1 M. ife W. 213; 12 L. J. Ex. 177; and per Mellor, J.,
appellants should be compelled to pay costs who improperly
set the law in motion : The G. N. dc N. W. Committee v. Inett,
46 L. J. M. C. 237 ; 2 Q. B. D. 284. So where an appeal
against the accounts of the surveyors of highways was dis-
missed by the sessions, they having no jurisdiction to hear
the appeal, the Queen's Bench upheld an order made on the
appellants to pay costs to the respondents : R. v. Fad^mck,
27 L. J. M. C. 113. So also where a party appeals without
the real grievance having arisen, he may be liable to pay
costs ; as where an appeal is made on an order of removal
where there was no due service of the notice of chargeability,
and without which the order was a nullity : see B. v. Shrews-
bury (Recorder), 22 L. J. M. C. 98 ; 1 E. & B. 711 ; (over-
ruling R. V. Rrixham, 8 A. & E. 375 ; 7 L. J. M. C. 78) ; see
R. V. BirmingJmm, 44 L. J. M. C. 48.

So also where an appeal is made under the Union Assess-
ment Act, whilst the Assessment Committee await deciding
on the rate pending a case on the point before them for
hearing in the Q. B. R. v. Bedminster, 45 L. J. M. C. 117 ;
L. R. 1 Q. B. D. 503.

Where the appellants give notice of appeal to the wrong
sessions, the respondents may go to those sessions and
obtain an order for costs {a) R. v. Leeds (Recorder), 30 L. J.
M. C. 86 : see R. v. Liverpool (Recorder), 15 Q. B. 1070 ; R. v.
Merionethshire, 1 Car. H. & A. 277 ; R. y. Buckinghamshire,
4 E. & B. 259, (n.).

W^here the appellant abandons the appeal, without paying
or tenderiijg to the respondents costs to the amount they
would be taxed, the respondent may apply for and obtain an
order for costs. R. v. Tow7utal, and R. v. Stayley, 3 Q. B. 357.

On the abandonment (see 11 & 12 Vict. c. 31, s. 8) of the
appeal on an order of removal, although the sessions may
make an order for the costs (Jy) they have no jurisdiction
over the settlement ; and if an order be made adjudging the

(fl) If the appellant has tried
his appeal at a wrong sessions he
will not be allowed, on its being
dismissed on the ground of no
jurisdiction, to treat the trial as
surplusage, and proceed to the

proper sessions : R. v. Salop JJ.,
4 E. & B. 257 ; 24 L. J. M. C. 14,
(J) An order for costs may be
made where the case is dismissed
on a mere informality : B.. v.
Cottingham, 2 Ad. k Ell. 250.

COSTS. 201

settlement mandamus will be adjudged for the erasing the
record of the entry of the appeal. K. v. Yorkshire W. R., 5
Q. B. 1 ; 12 L. J. M. 0. 148. It was held, in R. v. Stoke ^^^^^^^^
Bliss, 6 Q. B. 158; 13 L. J. M. C. 151, that an order on a setile-
for the costs, being ancillary to the order of confirmation, ment ap-
could not be enforced as the order was entire, and not P®*^»
divisible ; and being bad in part was bad in toto. [See next
case.]

But, however, in R. v. Over, 19 L. J. M. C. 57 ; U Q. B. not entire.
425 ; 4 New S. C. 77, the court refused to quash the order
for costs which also confirmed the order appealed on. For,
although it was an excess of jurisdiction, the bad part
could be severed from the good leaving the residue standing,
as the rights of the parties were not, in fact, affected thereby,
and the costs would have been the same had the appeal been
dismissed with costs. See also per Erie, J., R. v. Green, 20
L. J. M. C. 168; and see R. v. Bants, 32 L. J. M. C. 46 ;
R. v. All Sai7its\ Newcastle, 1 G. <fe D. 133.

In an appeal on a conviction the judgment is entire and Entire on
indivisible. Paley on Convictions, 6th Ed., p. 172, R. v. Hale, conviction.
Cowp. 728 ; R. v. Catherall, 2 Str. 900.

The respondent is entitled to his costs on the appellant Respondent
giving notice of countermand, although there may be a rule ^'^^'it^^*^^ ^*
of sessions to the contrary. R. v. Montgomery, 19 L. T. although
M. C. 397 ; and an order of sessions that costs shall follow a mle of
the event, unless an order is made to the contrary, is good, sessions
Freeman v. Read, 30 L. J. M. C. 123 ; but a rule fixing the ^^"^''•«-
amount in each case, irrespective of the merits and without
the sessions exercising " a discretion " in the matter as
directed by sec. 5 of 8 & 9 Will. 3, c. 30, will not be upheld
by the court. R. v. Merionethshire J J., 6 Q. B. 343 ; R. v.
Glamorganshire JJ., 19 L. J. M. C. 172, ante p. 198 n. («).

The fair amount of costs is in the discretion of the sessions,
and when that has been exercised the court of Q. B. will not
interfere. R. v. Nottingliam J J., 1 N. S. C. 422.

On an appeal under the Highway Act, 5 & 6 Will. 4, c. 50, Un<ler
8. 88, the sessions are *' authorised and required" under sec. .^^ ^ggR
90, " to award to the party, giving or receiving notice of sessions no
appeal, such costs and expenses as shall be incurred in discretion
prosecuting or resisting such appeal, whether the same be but to allow
tried or not ; and such costs and expenses shall be paid by ^*^^^^*
the surveyor or other party at whose instance the notice for
diverting, &c. the highway shall have been given ; and if the
said surveyor or other party shall not appear in support
thereof, the court of Q. S. shall award the costs of the

K 3

202

COSTS.

At wliat
sessions.

The order
Baust state
amount of
cost. No
power to
•delegate
authority.

Taxation
out of
sessions.
Assenting
to jurisdic
tion.

Under the
Licensing
Act, 1S29,

appellant to be paid by such surveyor or other party, and
such costs shall be recoverable in the same manner as any
penalties under this Act." Under this section the sessions
have no discretion as to costs ; the granting the order for the
costs is imperative ; and the application for them may be
made during the sessions, after the appeal has been struck
out, on the non-appearance of the respondent to support the
order. R. v. Yorkshire W. E., 31 L. J. M. C. 271 ; 2 B. & S.
811 ; see i?. v. Ilaiits, 1 B. & Ad. 654.

The order for costs must be made at the same sessions at
which the appeal is decided. See B. v. Clei-kj 5 Q. B. 887,
893.

Although in practice the clerk of the peace taxes the
costs, the sessions have no power to delegate their authority to
him ; the order itself should state the amount of the costs
allowed. See E. v. Sweet, 9 East, 25 ; Sellwood v. Motmt, 1
Q. B. 726 ; E. v. Long, ih. 740. Both parties should be
present on the taxation. E. v. Morlock, 7 Q. B. 471.

An order awarding such costs as may be thought reason-
able by the clerk of the peace, or by other persons (as by
two solicitors), is bad. E. v. St. Marty's, Nottingham, 15 East,
57, note ; E. v. SUnn, E. T. 15, G. 2, MS. cited in E. v.
Sweet, 9 East, 27.

If the party against whom costs are awarded consents to
the taxation taking place "out of sessions," the justices
will give judgment nunc pro tunc, and no objection can be
, made to the jurisdiction. E. v. Shreivsfmry and Hereford
Eailway Co., 25 L. T. 65 ; E. v. Long {sup.), referred to by
Erie, C. J., in Freeman v. Eead, 30 L. J. M. C. 128. And in
expai'te Wilkins, 5 L. T. 605. As to the taxation of costs " out
of sessions" on a reference, see tit. "Arbitration." The
Southampton Gas Light Co. v. The Southampton Union, 46
L. J. M. C. 238. Where the party attended the taxation
after the sessions without any protest, he was held to have
assented to the jurisdiction.

On an appeal under 9 Geo. 4 c. 61, s 27 (The Licensing
Act, 1829), the sessions dismissed the appeal with costs.
After the court had risen the clerk of the peace taxed
the costs under protest of the appellant. The sessions
adjourned, and before the day of the adjournment the costs
were certified, and the amount inserted in the order of ses-
sions. In the absence of any statement to the contrary, the
court will presume the order was rightly made ; and tliat
there appeared to be a sufficient adoption of the taxation by
the adjourned sessions, although no mention of the amount

COSTS. 203

was made in court. E. v. Phillips, 20 L. T. R. 100,
Q. B.

By 11 & 12 Vict. c. 43, s. 27 (Jervis's Act), it is enacted Jervis's
that after an appeal against any conviction or order within f^\}^ ^
the Act shall be decided, if the same shall be decided in ^g ^ 2?
favour of the respondents, the justice or justices who made ^ '
such conviction or order or any other justice of the peace of ^f ^^^^^^
the same county, riding, division, liberty, city, borough or
place may issue a warrant of distress or commitment for
execution of the same as if no such appeal had been brought,
and if upon any such appeal the Court of Quarter Sessions
shall order either party to pay costs, such order shall direct
such costs to be paid to the clerk of the peace of such court Payment
to be by him paid over to the party entitled to the same, to clerk of _
and shall state within what time such costs shall be paid, peace.
and if the same shall not be paid within the time so limited,
and the party ordered to pay the same shall not be bound
by any recognizances conditioned to. pay such costs, such
clerk of the peace or his deputy, upon application of the
party entitled to such costs or of any person on his behalf,
and on payment of a fee of one shilling, shall grant to the
party so applying a certificate that such costs have not been
paid, and upon production of such certi'ficate to any justice
or justices of the peace for the same county, &c., it shall be
lawful for him or them to enforce the payment of such costs Distress,
by warrant of distress, and in default of distress he or they
may commit the party against whom such warrant shall have
issued for any time not exceeding three calendar months,
unless the amount of such costs, and all costs and charges of
the distress, and also the costs of the commitment and con-
veying of the said party to prison, if such justice or justices
shall think fit so to order (the amount thereof being ascer-
tained and stated in such commitment) shall be sooner paid.

Notwithstanding the words in the 5th section of Baines' Order for
Act, that the costs are to be paid " to the other party," the costs to be
order must direct them to be paid to the clerk of the peace n?^\.*Vi^
as directed under Jervis's Act, sec. 27. Gay v. Mattheivs, 4 pea^^ anl
B. & S. 425, 440 ; 33 L. J. M. C. 14 ; see- also i?. v. Huntley not to' the
(under 17 Qeo. 2, c. 38), 3 E. & B. 172 ; 23 L. J. M. C. 106; party.
R, v. Ely JJ. (under 9 Geo. 4, c. 61), 5 E. & B. 419 ; 25
L. J. M. C. 1.

In Gay v. Matthews^ the form of order was : " And this Form of
court doth order and direct the said appellant A. G. to pay orJer.
the sum of £20 for costs to the clerk of the peace of this
court to be by him paid over to the parties entitled to the

204

COSTS.

same, within three weeks after service of this- o rder, or^
cjpy thereof, upon the said A. G.

By the Court,

J.*S., Clerk of the Peace.

4

Imperfect
order may
"be set aside
on motion!

Enforcing
orders
nnder
12 & 13
Vict. c. 45
Baines*
Act. '

Baines'
Act only
applies
to appeals.

If the order is not so made, it will be an irregularity, and
on the other party making it a rule of court. for efiforcement
(l2 &13 Yict. c. 45, s, 18), it may be set aside. R, \. Hillie?',
17 Q. 'B. 220 f 21 L. J,M. C, 3. / ^ ' .' .

•Where the statute had taken away "the certiorari, the
court refused to set aside an order making the amount of
costs payable to the otiier party, instead oT' to the clerk of
the peace, as not being an order made Vitbout jurisdiction,
hut only a^n "erroneous procedure."-' 7?.' v, Binney, 1 E. &
B. 810 ; 22'L. J. M. C. 127. See ante,-^. 182.

An order for the payment of costs may be enforced under
12 ife 13 Vict., c. 45, s. 18, by application to the Court of
Queen's Benoh,. or to any judge of that Court at Chambers
either in tferm pr vacation, by any person entitled to enforce
such or^er, aiM Upon the production of a copy of such order
und^r 'the hand of the Clerk of the Peace, or his deputy, and
•upon' proof of refusal or neglect to obey such order, such
»(;)ourt or judge may order, the proceedings to be removed
into "the Court to be enforced as a rule of Court, and all-
reasonable costs attending the application will become and
be recoverable as part of the order. This order is removable
^Cithout a writ of certiorari. Havjker v. Field, 1 L. M. & P.
606 and note; 20 L. J. M. C. 41; also E. v. Gamile, 1&
M. & W. 384.

This statute applies only to cases of appeal. It does not
apply to an order to abate a nuisance, which order could be
enforced .by the sheriff. R, v. Bateman, 27 L. J. M. C. 95,
For enforcing the recovery of the costs they are w^ithin the
second exception of s. 4 of the Debtors Act, 1869-, and may
be enforced by commitment arid imprisonment where the
party against whom the order -is made is not bound by re-
cognisance to pay the costs. R. v. Pratt j L. R. 5 Q. B,
176 ; 39 L. J. M, C. 73.

See tit. "Arbitration" as to Costs on a reference.

COUNTY RATES. • 205

COUNTY RATES,
15 ^ IB Vict. e. 81. ,

The Consolidated Statute on county rating is 15 & 16 *
Vict. c. 81.. ' • "

By s. 2 of that A,ct it is enacted that the justices assembled Committee
at the general- or quarter sessions, or any adjournment, may, of justices
as often as they may. deem jt necessary,. appoint any number ^}^^ ^V'
of justices, not exceeding eleven nor less than five,- to be ^-^^Tarin^^
committee for the purpose of preparing a basis or standard basis for°
for fair and equal colinty rates, such basis or standard to be rate,
founded and prepared rateably and equally according to the
full and fair annual value- {i.e. by s. B, the net annual value
of any property, as the Same is or may be required by Ihw to
be estimated for the purpose of assessing poor rate^ of the
property, messuages, lalids, tenements ^nd hereditaments rate- " *
able to the relief of the poor in every-parish, township, borough ,
or place, whether parochial or extra- p.arpchial, within the
respective limits of the said justices' commisision^, oj'. which,
in any place within such limits not maintaining its. own poor,
would be liable to be rated for the relief of the poor, if such
last-mentioned place were a parish, or of altering and amend- . . . *
ing such basis or standard from time to time as circumstances
may require : provided that in counties containing more than*
eleven petty sessional districts or divisions, the committee So . .
appointed may be extended to a number equal to the number *
of petty sessional divisions, in order that one j ustice may be
selected from the justices usually acting in each such petty
sessional division, if the same shall appear convenient in' the
opinion of the justices appointing such committee.

Where counties are divided into divisions, having a
separate county treasurer, see 27 &, 28 Vict. c. 101, s. 3.

Unoccupied houses capable of being rated are to be
included in the valuation und^r sec. 2 : li. v. ffaminersmith,
7 W. R. 524 ; 33 U T. 182 ; MaJdon Overseers v. i?., 38L. J.
M. C. 125; L. R. 4'Q. Bi.326. Tenants in ancient demesne
are not exempted : B. v. Aylesford, 2 "E. & K 538 ;
29 L. J. M. C. 83.* - * .

It was doubted whether the powers of the justices were
not impliedly interfered with or controlled by the Union
Assessment Act, 1862 (25 & 26 Vict. c. 103), but, by
29 & 30 Vict. c. 78, s. 1, the assessment uilder 15 & 16
Vict. c. 81, is not to be affected by the Union Assessment
Act, 1862.

206

COUNTY RATES.

Overseers
to make
returns.

Expenses
of yalua«
tion.

Order for
payment.

Meaning of
fair annual
value.

"When basis
altered,
vestry to
have notice.

By sec. 5, power is giren to the committee to direct the
overseers and officials to make returns of the amount of
the full and fair annual value of the property within their
parish or township liable to be rated to the county rate.

If the overseers or others neglect to make a proper return,
the general or quarter sessions may order the whole of the
costs and expenses incuiTed by the committee in ascertain-
mg the amount to be charged on the parish, in addition to
its county rate (sec. 10).

By sec. 11, where the committee have directed, under
sec. 9, the whole or any part of any parish, &c., to be valued,
and where, in the basis confirmed by the quarter sessions,
the parish, &c., is rated on a sum greater than that in
the return of the overseer, constable, or other person re-
quired to make such return in any plice not maintaining
its own poor, if there be no appeal made and prosecuted
with success at the quarter session next after the confirma-
tion, such session shall order the overseer, &c., of the
parish, &c., to pay the expenses of the valuation. If there
be an appeal to any quarter session, on the ground that
the parish, &c., is rated on a sum beyond the fair annual
value, and the basis be confirmed or not reduced to or below
the sum set forth in the returns, such session shall order
the overseer, &c., of the parish, &c., to pay the expenses of
the valuation ; such expenses to be raised, levied, and col-
lected by the like ways and means as the county rate, and
to be paid therewith.

The full and fair annual value is to be taken to mean
the net annual value of any property as the same is
or may be required by law to be estimated for the purpose
of assessing the rates for the relief of the poor (sec. 6) ; and
the committee may order the production of all parochial and
other rates, &c., and all documents relating to the value of the
property assessed in the hands of private individuals or public
officers : Dickson v. Douhleday, 30 L. J. M. C. 99 ; except
income-tax collectors, 26 & 27 Vict. c. 33, s. 22.

When the basis has been prepared, showing the total
amount of the annual value of the property in any parish or
place is estimated at a greater or less amount than the last
preceding one, a copy thereof is to be sent to every acting
justice of the county, and a copy (together with a notice of
the time, not less than one calendar month after the date of
the notice, within which objections may be forwarded to the
overseers, &c., or any persons affected by the basis) to the
overseers, constables, or other persons charged with the col-

COUNTY RATES. 207

lection of the rates (a) ; and the basis is to be submitted by
the overseers to the vestry.

By sec. 15, notice is required to be given of the time Noticetobe
when the basis will be considered by the quarter sessions, given when
On the basis being finally approved by the committee, the sessions
committee must lay it before the next general or quarter T^ consi^
sessions, which court will thereupon direct public notice to basis.
be given in one or more newspapers usually circulated in the Proceed-
county (6) that it will be taken into consideration at the next ings l-efore
general quarter sessions, at which sessions the court skall sessions.
take it into consideration, and alter and amend it as may
seem proper, and. if they think fit, allow and confirm it, or
instead of altering and allowing and confirming, refer it
back for amendment to the committee, and adjourn the con-
sideration of it to some future general or quarter sessions.
In such case the committee have the same powers as pro-
vided for the original making out the basis under sec. 6. But
before any such alteration or amendment is allowed or con-
firmed by the sessions, the committee must send fourteen
days' notice by post or otherwise to every parish and place
with regard to which the alteration is made.

The basis so allowed and confirmed is to be taken "to be "Basis"
(sec. 16) made and established, and shall be valid, legal, and valid.
effectual," notwithstanding any irregularity may have arisen
in the making or omission to make the returns required, but
subject nevertheless at all times to appeals against the Sulject to
same, as provided by sec. 17. And the basis so confirmed *Pl^^^*
is to be deemed to be the standard on which all assessments
of the county rate shall be made subject to any appeal
(sec. 17), or any recommendation of the committee (sec. 20),
under which, although there be no appeal made, the com-
mittee may from time to time revise any such basis on
being so required by the court of general or quarter sessions
for the purpose of meeting any partial changes that may
have occurred in the rateable proportions of the property
assessed, wiiere, upon due inquiry, the committee may alter
the basis forthwith, giving notice in writing of such altera- Notice,
tion to the parish or place whose basis it is proposed to altor,
and, upon some day to be named in the notice, shall hear
and decide upon any objection that may be made by any
person on behalf of any persou, parish, or place; and upon

{n) This will now be to the See tit. "High Constable ■'('/?/?•«).
Guardians of the Union, tlie office {h) Swanaia Dock Company \.

of High Constable being abolished. Leiien, 20 L. J. Ex. 447.

208

COUNTY RATES.

Notice.

Adjourn-
ment.

Local acts.

Justices
to act
in open
court.

Who to
take part
in proceed-
ings.

Appeal
under
sec. 17
against the
ba-is.

Grievances.

the decision to alter such basis, the committee shall report
the same to the next, or some subsequent general or quarter
sessions, ten days' notice having previously been given to
each parish or place whose basis has been altered, and the
justices assembled thereat, after hearing the objections, if
any, that may be made by any persons duly authorised to
represent any such parish or place, may make such order as
may appear just ; and any order so made will be binding on
all parties concerned.

Under sec. 21, the justices in general or quarter sessions,
or at any adjournment thereof, may, as circumstances may
appear to require it, order and direct a fair and equal county
rate to be made for all the purposes for which the county
stock or rate is made liable by law.

Some counties have local Acts for regulating the making
of county rates. Under sec. 47 of the general Act, the
justices of such counties are empowered to proceed in the
assessing of their county either under their local Act, or
under the general Act in all such cases as are not in-
consistent with the provisions of the general Act.

All business relating to the assessment and application
of a county rate must be transacted in open court, and no
order otherwise made will be binding and effectual : sec. 48.
And no ratepayer or person other than a member of the
court can interfere with the jurisdiction of the justices, or
take any part in the proceedings : R. v. Nottingham JJ.^
3 A. & E. 500.

By 15 & 16 Vict. c. 81, s. 17, if at any time after the
basis or standard has been allowed, confirmed and made,
any overseers of the poor, or other person charged with the
collection and levy of county rate, in any parish, township
or place, or inhabitant or inhabitants thereof, have reason
to think that such parish, township or place is aggrieved
by any such basis or standard, whether it be (1) on account
of some one or more of such parishes, townships or places
being without sufficient cause omitted altogether from the
said basis or standard ; or (2) on account of such parish, <tc.,
being rated on a sum beyond the full and fair annual value
of the property therein liable to be assessed towards the
county rate ; or (3) on account of some other parish or
parishes, township or townships, place or places being rated
on a sum less than the full and fair annual value of the
property therein liable to be assessed towards the county
rate, such overseer or overseers of the poor, constable or
other person or inhabitant or inhabitants, may appeal to the

COUNTY RATES. 209

justices of the peace for the county at any quarter sessions
to be h olden after the sessions at which such basis or standard
was allowed and confirmed, against such part only of the
basis or standard as may affect the parish or parishes, town-
ship or townships, place or places, which appear to be over-
rated or under-rated, or omitted altogether from the basis or
standard (subject to the provisions hereinafter contained) ;
and if in any case where any overseer or overseers, constable
or other person as aforesaid of one parish or place appeals
against the basis or standard of rate on any other parish or
place, (1) on account of the same being altogether omitted Notice as
from such basis or standard ; or (2) on account of the same ,^S ^ _
being rated at less than the full and fair annual value thereof ances.
as aforesaid, such overseer, &c., shall give twenty-one days'
notice in writing previous to the first day of the session at
which such appeal shall be made, of the intention to appeal,
and of the cause and matter thereof, to the overseers of the
poor; or where there are no such overseers, to the person •
charged with the collection and levy of county rate in such
other parish or place ; and if in any case (3) where any such Notice as
overseer, (fee, appeal on the ground that any parish, &c., is to.(3)
rated on a sum beyond the full and fair annual value of the grievance,
rateable property therein, such overseer, &c., shall give
twenty -one days' notice thereof in writing, with the cause
and matter thereof, to the clerk of the peace of the county, the
justices shall be empowered to hear and determine such Court to
appeal in manner by the Act directed, and either to confirm detei-mine
such parts of the basis or standard as have been appealed ^PP^* •
against, or to correct such inequalities or omissions as shall
be proved to exist therein, in such manner as to the justices
may appear fair, just, and equitable ; but no such basis or
standard shall upon any appeal be quashed or destroyed, in Basis not
regard to any other parish, (fee, unless in cases where the to be
justices in quarter sessions assembled deem it necessary to ^^^^l^^d
proceed to the making of an entire new basis or standard, e^t^^etv^
and where they proceed therein according to the provisions to make'
of this Act. new rate.

Under sec. 18, the Court may adjourn the hearing of such Court may
appeal that a survey and valuation of the parishes may be adjourn for
made in relation to the appeal ; and may fix some subsequent ^e^' survey,
sessions for receiving such survey and valuation, and for the
hearing and determining the appeal ; the Court may appoint
a proper person to make the survey and valuation who shall
have full power to make such survey by view, (fee.

By sec. 19, the costs of making such survey and valuation Costs of

survey.

210

COUNTY RATES.

Appeal
under
sec. 22,
against the
rate.

Grievancer,

"Practic-
able ses-
sions "
Sum.

Juris. Act
1879, s.
32.

Notice.

will be costs in such appeal, and abide the event thereof.
The Court may order costs to be paid by either party as the
Court may think fit. Where the ground of appeal is that
the parish, &c., is rated on a sum bej^ond the full and fair
annual value of the property therein, and the decision shall
be in favour of the appellants, the Court shall order the
treasurer of the county rates to pay the appellants their
costs out of the public stock of the county in his hands.

In a further appeal clause (sec. 22), if the churchwarden
or churchwardens, overseer or overseers of the poor, or other
inhabitant or inhabitants of any parish, township or place,
whether parochial or otherwise, where there is no church-
warden or overseer, or person appointed to act as such, shall
at any time thereafter have reason to think that such parish,
township or place is aggrieved by any rate or assessment to
be made upon the basis or standard before mentioned, either
in pursuance of this Act or any Act or Acts now in force,
whether it be (1) on account of the proportions assessed
upon the respective parishes, &c., being unequal; or (2) on
account of some one or more of them being without sufficient
cause omitted altogether from the rate ; or (3) on account of
such parish, &c., being rated at a higher proportion of the
pound sterling according to the fair annual value of the
rateable property therein ; or (4) on account of some other
parish or parishes, &c., being rated at a lower proportion of
the pound sterling according to the fair annual value of the
rateable property therein than has been fixed and declared
by the justices of the peace of the said county in sessions
assembled as the basis of the rate of the said county ; or (5)
on account of the altered state of the value of the property
assessed, or any part thereof; or (6) shall have any other
just cause of complaint whatsoever, it shall be lawful for
such churchwarden or churchwardens, overseer or overseers
of the poor, or other inhabitant or inhabitants where there
is no churchwarden, &c., to appeal to the justices at the next
quarter sessions of the peace after such cause of appeal shall
have arisen, against such part of the rate only as may affect
the parish or parishes, &c., which are unequally rated, or
which shall appear to be over-rated or under-rated, or omitted
altogether from the rate : provided always, that fourteen
clear days' notice in writing previous to the first day of such
last mentioned quarter sessions shall be given by the parties
intending to appeal to the parties against whose rate the
appeal is to be made, also to the clerk of the peace of the
county, and the hundred constable, of the grounds of such

COUNTY RATES. 211

appeal and the intention to try such appeal at such quarter
sessions of the peace ; and the justices are empowered to
hear and finally determine the same ; and either to confirm Court to
such parts of the rate as have been appealed against, or to ^^^^^y ,
correct such inequalities, disproportions or omissions as shall appeal,
be proved to exist therejn as well in respect of the basis or
standard as in the assessment of the rate made thereon, in
such manner as to the said justices shall appear fair, just
and equitable, anything in the Act or any law, usage, or
custom, to the contrary thereof notwithstanding : provided Basis not
that the rate shall not be quashed in regard to any other *o ^
parish, &c., unless where the justices shall deem it neces- except in
sary to proceed to the making an entire new rate, and entirety to
shall proceed thereon according to the Act. {Supra, make a
sec. 17.) new rate.

The party appealing must show that the parish, township,
or place on whose part he appeals is rated in a higher pro-
portion with reference to some other parish, &c., than it
ought to be : R v. Westmoreland JJ., 10 B. & C. 226.

Notwithstanding the appeal the rate is to be raised and Bate to be

levied. If on the hearing of the appeal the rate shall be collected

ordered to be set aside, decreased or lowered, and any sums ^ * ^^]° ,
1 1 • 1 • -I 1 • 1 1 ,11 appeal and

nave been previously paid which ought not to have been return

paid, the Court " shall " order such sums to be repaid out of the ordered.

general rate of the county (sec. 23). See 57 Geo. 3, c. 94,

s. 2.

By sec. 24 the expenses of the appeals are to be borne in Costs.
such proportions as the Court may order.

For the more effectual prevention of frivolous appeals, the Frivolous
justices, upon proof before them of notice of any appeal appeals.
having been given as authorised though the parties giving Costs.
the appeal did not afterwards prosecute it, shall and may at
the same sessions award and order to such person to whom
such notice shall appear to have been given, such costs and
charges as shall be thought reasonable and just to be paid
by those giving the appeal.

Section 51 defines "county" to mean any riding or division Definitions,
having a separate commissioner and treasurer ; and any
liberty, franchise, or other place in w^hich rates in the nature
of county rates may be levied, having a separate commission
of the peace and not subject to the county or counties at
large in which such liberty, (fee, may lie, nor contributing to
the county rates. And " county rate " means every rate
assessed in the county or division for all purposes to which a
county rate may be liable.

212

DEALERS IN OLD METALS.

County

stock

charged.

Section 52 defines a " parish " as a place maintaining its
own poor, or one for which a separate poor rate may be
made ; a " union " means any number of parishes united
together under the Poor Law Acts ; " guardians '* mean any
board of guardians acting under the Poor Law Acts ; and
" hundred " means any hundred, wapentake, ward, or other
district in the nature of a hundred by whatever name
denominated. See R. v. Carmarthen^ ante, p. 107.

When a duty is imposed on a county, and costs are
incidentally and necessarily incurred in enforcing it, the
magistrates have the right to defray them out of the county
stock ; Lord Kenyon, C. J., R. v. Essex^ 4 T. R. 594. But
they cannot defray expenses not connected with county
matters ; as refreshments supplied as " sessions expenses."
R. V. Saimders, 3 E. & B. 763; R. v. Williams, 3 B. & A. 215.

Excepting under express enactment, a rate cannot be made
to reimburse antecedent expenses, although incurred for
county purposes. R. v. Flintshire JJ., 5 B. & A. 761 ; see
Cortis V. Kent WaterivorJcs Co,, 7 B. & C 314 ; Harrison v.
Stickney, 2 H. L. C. 108 ; so also R, v. St. F tier's, York, 2
Lord Raym. 1249.

The various claims upon the county stock and rates are
created by numerous statutes ; but as the particular items
are not the subject of appeal, they can only be referred to as
incidental to the proceedings affecting the several subjects
treated of in this work.

DEALERS IN OLD METALS.

24 & 25 Vict. c. 110.

Object of
Act.

The 24 & 25 Vict. c. 110 was passed to extend to dealers

in old metals the beneficial action of 17 & 18 Vict. c. 104,

s. 480, as to marine store dealers, and which it had been found

had diminished the facilities for disposing of stolen goods.

Definition Section 3 defines the term " dealer in old metals " as a

of "dealer person buying and selHng old metal, scraps of broken metal,

^^ til " ^^ partly manufactured metal goods, or defaced, or old metal

goods, whether such person deals in such articles only or

together with second-hand goods or marine stores ; and the

term " old metal " shall mean such art icles.

DEALERS IN OLD METALS. 213

Section 5. Dealers in old metals being also marine store To comply
dealers under 17 & 18 Vict. c. 104, s. 480, are to conform to with 17 &
the regulations of that section ; and by sec. 6 each dealer is I^^q^^'*
to keep the police acquainted with his place of business. g' 439,'

Section 8 provides for the mode in which the dealer shall
conduct his business, and the books he shall keep and entries
he shall make therein, under a penalty of not less than 205.
or more than £5 ; and for every subsequent offence not less
than j£5 or exceeding £20.

Under sec. 4 upon complaint on oath to a justice of the Search
peace that the complainant believes that old metal stolen or warrant
unlawfully obtained is kept in any house, shop, room, or ^^^ ^^^^'
place by any dealer in old metals within the limits of the
justice's jurisdiction, such justice may authorise by special
warrant any constable to enter in the daytime such premises
and to search for and seize all such old metals found there,
and carry the same before a justice exercising a similar
jurisdiction. And such dealer may then be summoned to Onus of
appear before two justices at a time and place to be named P'^oof of
in the summons ; and if such dealer shall not then and there possession
prove to the satisfaction of such justices how he came by the of the
articles, or if he shall be found in possession of any old metal dealer,
which has been stolen or unlawfully obtained, and it shall be
proved, on his being taken before two justices, to their
satisfaction, that at the time when he received it he had
reasonable cause to believe it to have been stolen or unlaw-
fully obtained, then, in either case, he will be liable to a
penalty not exceeding £5 ; and for any subsequent offence to
a penalty not exceeding £20 ; or imprisonment with hard
labour for any period not exceeding three calendar months.
But this provision is not to interfere with the proceeding by
indictment.

Under sec. 9, penalties may be recovered under 11 & 12
Vict. c. 43 ; and costs of prosecution under 7 Geo. 4. c. 64.

Sec. 11 gives an appeal in all cases of convictions under Appeal,
the 4th sec. and in all other cases of convictions under
the Act where the sum adjudged to be paid exceeds £5, and
the person thinks himself aggrieved by such conviction. He
may then appeal to the next Court of Quarter Sessions
which is holden not less than twelve days after the day of
such refusal or conviction for the county, &c. wherein the
case has been tried ; provided, that such person shall give to
the justices or the complainant, as the case may be, a notice
in writing of such appeal, and of the cause and matter
thereof, within three days after such conviction ; and seveu

214 DISSENTERS.

clear days at the least before such sessions : and shall also
within such period respectively enter into a recognizance
with two sufficient securities before a justice of the peace
conditioned personally to appear at the sessions and prose-
cute the appeal, and abide the judgment of the Court
thereupon, and pay such costs as may be awarded. And the
Court may award costs, and determine the appeal as it may
see fit. See also as to the party electing to appeal, the
Summary Jurisdiction Act, 1879, sec. 32.

On a conviction under the 4th sec, the court may direct
that the dealer be registered, as having been convicted, at
the ])olice office where he will be under the regulations
specified in sec. 8 ; but on appeal made such order will be
suspended pending the appeal ; see sec. 5.

As to what may be considered to be a sufficient possession,
see R. V. Wilcock, 14 L. J. M, C. 104; 7 Q. B. 317 ; B. v,
Wiley, 20 L. J. M. C. 4.

DISSENTERS.

Every person knowingly permitting or suffering a con-
gregation to assemble for the religious worship of Protes-
tants (a) of more than twenty persons (besides the inmates of
the house), in any place occupied by him until the place
shall be certified and registered with the Registrar General of
births, &c. (see 15 & 16 Vict. c. 36, and see also 18 & 19 Vict,
c. 81 ) will be liable for every time such congregation shall meet
to a penalty not exceeding <£20, nor less than 20s., 52 Geo. 3,
c. 155, s. 2. (See Summary Jurisdiction Act, 1879, s. 8.)

Any person teaching or preaching in such place without
the consent of the occupier, for every such offence will
forfeit not exceeding £30, nor less than 40^. : 52 Geo. 3, c.
155 s. 3 {h).

The doors of such assemblies are not to be bolted or

(a) As to "Roman Catholic Act, or who shall disturb, molest

assemblies, see 2 & 3 Will, 4, c. or misuse any preacher officiating

115 ; or Jews, 9 & 10 Vict. c. 59. thereat, will upon proof by two

See also 18 & 19 Vict. c. 86, s. 2. or more credible witnesses before

(J)) Any person wilfully, mali- a justice, be bound over to appear

ciously or contemptuously dis- at the quarter sessions to answer

quieting or disturbing any congre- therefor; and may on conviction

gation assembled for religious suffer the pain and penalty of

worship and authorised under the forty pounds.

DYNAMITE (FISH). 215

barred, or otherwise fastened ; penalty, not exceeding £20,
nor less than 405. 52 Geo. 3, c. 155, s. 11.

The 16 sec. 52 Geo. 3 gives to any person aggrieved by a Appeal,
conviction under this Act an appeal to the Quarter Sessions
for the county, &c., holden next after such conviction, giving
unto the justices before whom such conviction was made
notice in writing, within eight days after such conviction, of
his intention to prefer such appeal ; the justices in quarter
sessions are to hear such appeal and award costs not ex-
ceeding 405. See Sum. Jurisd. Act, 1879. Sec. 32 giving
the option of appeal under that Act.

This statute, 52 Geo. 3, although still in force, may be
considered as rendered practically obsolete by 18 & 19 Vict,
c. 81, (s. 3,) for the certifying and registering places of public
worship ; and further, by 18 & 19 Vict. c. 86, for securing
the liberty of religious worship in a place of meeting not
certified, as to which no prosecution is to be maintained.

DYNAMITE [See FISH).

40 & 41 Vict. c. 65, s. 2 ; 41 & 42 Vict. c. 39, s. 12.

Any person using dynamite or other explosive substance
to catch or destroy fish in a public fishery, will be liable on
summary conviction either to a fine not exceeding .£20, or to
imprisonment with or without hard labour for a term not
exceeding two months : 40 & 41 Vict. c. 65, s. 2, By 41 &
42 Vict. c. 39, s. 12, this section is to apply to the destruction
or catching fish in a similar way in any water whether public
or private within the limits of the Act.

As to an appeal on an imprisonment, see Summary
Jurisdiction Act, 1879, sees. 19, 31.

216

EVIDENCE.

Best evi-
dence to be
produced.

Docu-
mentary
evidence.

Proof of
deed.

When lost
and a
counter-
part.

Where both
deed and
counter-
part lost —
secondary
evidence
admitted.

EVIDENCE.

The first rule of evidence is that the best of which the
case is capable shall be given. The party failing to produce
the best evidence without a reasonable excuse, affords the
presumption that it would be against him. See Jarvis, C. J.,
in Tioyman v. Knowles, 13 C. B. 224; Best on Ev., pt. 1,
c. 1, ss. 87; 89. The rule does not exclude any evidence in
the abstract, but gives rise to comparisons with better evi-
dence which might be produced. Where no better evidence
can be obtained, secondary evidence becomes admissible and
has its force.

Where a written document is the foundation, in law, of
the proceeding in issue, it must be produced in evidence
before its contents can be spoken of. The rule for the letting
in secondary evidence of the contents of a written document
was settled in the House of Lords on the trial of Queen
Caroline, 2 B. & B. 286 ; it is divided under the five follow-
ing heads : —

1. Where the written document is lost or destroyed ;

2. Where it is in the possession of the adverse party who
refuses or neglects to produce it ;

3. Where it is in the possession of a party who is privi-
leged to withhold it, and w^ho insists on his privilege ;

4. Where the production of the document would be, on
physical grounds, impossible or highly inconvenient ;

5. Where the document is of a public nature, and some
other proof has been specially substituted for reasons of con-
venience. See 42 Vict. c. 11.

Where it is only by deed that the foundation of the case
or title can be made (as in the binding an apprentice), the
deed must be proved ; or, if lost or destroyed, secondary
evidence of its contents may be produced. R. v. East
Knoyle, Burr. S. C. 151 ; 2 Bott. 644.

Of the loss or destruction of the deed satisfactory proof
must not only be given, but where there has been a counter-
part of the deed, that must be in evidence, or its loss also
accounted for.

Upon either the deed or counterpart being traced into the
possession of some one person, that person must under most
circumstances be subpoenaed as a witness and prove its loss or
destruction. See R. v. Castleton, 6 T. R. 236 ; R. v. Denio,
7 B. <fc C. 620 ; this rule is, however, subject to modifi-
cation.

EVIDENCE.

217

Where only one part of an indenture had been executed, Evidence
and the pauper and master were both dead at the time of the J ^e3,rcli
trial, but shortly before the pauper's death he had stated geconJary
that the indenture had been given up to him after the expi- evidence,
ration of the apprenticeship, and that he had burnt it ; and
no trace of the deed could be found amongst the papers
either of the master or the pauper, it was held that a suffi-
cient inquiry had been made to admit the secondary parol
evidence, and a distinction was drawn between that case and
R. V. Castleton, for there was evidence there that a further
search was necessary. R. v. Morton, 4 M. & S. 48 ; see also
R. V. Fiddlehinton, 3 B. & Ad. 460.

After a lapse of forty years from the time of the indenture
every person was called with whom there was a possibility
of its being found ; it was held such due diligence had been
used to obtain the primary evidence without success as
ought to let in the secondary evidence. R. v. East Farleigh,
6 D. & R. 147 ; 2 D. & R. Mag. Ca. 71.

In a case tried in 1863, the counterpart of a parish appren-
tice deed was produced from the parish chest of H. The
document purported to be a binding as an apprentice of
T. W. to T. B. by the parish officers of H. The document
was signed and sealed by T. B., but not by the church-
wardens and overseers of the parish. No indentures could be
found, on search, amongst the papers of the deceased appren-
tice, and no further search was made. It was held, that
inasmuch as it was more probable the indenture would have
been kept by the apprentice after serving his time, and con-
sidering the lapse of time (72 years) a sufficient search had
been made to let in the secondary evidence. R. v. Hinckley,
32 L. J. M. C. 158.

The mother of a j)auper proved that she had twenty-four Presump-
years previously apprenticed her son as a parish apprentice, tion of loss
and had received money from the overseers for that purpose ; ^^ ^qq^-
and that after the indenture had been executed, she had
sent it to the overseers of the parish. Diligent search had
been made in the parish chest for the deed without finding
it. The executor of the deceased apprentice was applied to,
who was certain no such document was in his possession
when he died. Lord Tenterden, L. C. J., and Bay ley, J.,
held that, considering the nature of the document, and the
circumstances of the case, there was reasonable evidence
that the document had been lost. It was unnecessary, and
would be unreasonable and absurd, to produce all the parish
officers for each year from the time of the apprenticeship to

218

EVIDENCE.

Evidence
of person
last in
possession
of deed.

Statements
by him
evidence.

Presump-
tion that
all con-
ditions to
deed had
been rightly
done and
stamped.

trace the loss of the instniment. The parish chest was the
natural and probable place for the indenture to be found
in ; and not being found there, the reasonable inference was
it was lost : R. v. Stourbridge ^ 8 B. & C. 26 ; see also
R. V. Saffron Hill, 1 E. & B. 93 ; 22 L. J. M. C. 22, holding
that although the degree of diligence which is necessary
for the search for the lost instrument, in order to let in the
secondary evidence of its contents, cannot be easily defined,
the party is expected to show he has in good faith exhausted
to a reasonable degree all the sources of information and
means of discovery, which the nature of the case would
naturally suggest, and which were accessible. See W-Gahey
V. Alston, 2 M. & W. 206; Gathercole v. Miall, 15 ih. 319 ;
Brewster v. Sewell, 3 B. & A. 299.

Some doubts have existed whether if the person to whom
the document had been traced was not called as a witness,
evidence of any answers by him could be given respecting
the document. Such answers had been admitted to inform
the conscience of the court whether the search was a reason-
able one, and as preliminary to the receiving the secondary
evidence. It was received in R. v. Morton, 4 M. & S. ;
R. V. Braintree, IE. & E. 51 ; 28 L. J. M. C. 1 ; see also
R. V. Kenilworth, 7 Q. B. 642; R. v. Saffron Hill (sup.). It
was rejected in R. v. Denio, 7 B. & C. 620 ; see also R. v.
Fordinghridge, E. B. & E. 678 ; 27 L. J. M. C. 290 ; R. v.
Rawdon, 2 Ad. & Ell. 156.

In a recent case in Ireland it was held that in order to
show a sufficient search had been made for the lost docu-
ment, evidence was admissible of persons who had made
inquiries of those likely to have had possession of it, and
of the replies given by them to such inquiries, without
producing any affidavits from those persons as to the extent
and result of their searches : Smith v. Smith, 10 Ir. R. Eq.
273, V. C.

In 1806, a question arose on an indenture of apprentice-
ship made in 1774 or 1775 — namely, whether it had been
stamped. Notwithstanding the negative evidence of the
deputy registrar and comptroller of the apprentice duties
that it did not appear that any such indenture had been
stamped with the premium stamp, or enrolled from 1773
to 1775, the sessions presumed that everything had been
rightly done, and the court supported their decision :
R. V. Long Buckhy, 7 East, 45. But where there is in
such a case some direct evidence that the indenture had
not been stamped, the stamping will not be presumed ;

EVIDENCE. 219

R. V. St. Helen's, Abingdon, Burr. S. C. 292, 735; 2 Bott,
600.

In a case before the House of Lords, the burthen of proof Burthen of
that an instrument, which is either lost or retained by the P'^*'^^ ^^^*
opposite party after notice to produce it, was unstamped, j^tamped.
was held to lie, in the first instance, on the party objecting
to its production, on the ground that it is unstamped.
Where there was no evidence on either side, it would be
presumed to have been stamped. But where once satis-
factory evidence had been given that at a particular time
the instrument was unstamped, there was an end to every
presumption of law in favour of its having been stamped,
and the onus of proof was shifted, and the party who relied
on the instrument would be called on to prove it was duly
stamped : MaHne Investment Co. v. Haviside, L. R., 5 H. L.
624 ; 42 L. J. Ch. 173 ; see 1 Taylor on Evid., § 148, p. 161,
edit. 7th.

Where under the 2nd rule in the Queen's case the docu- Notice to
ment to be produced is in the custody of the adverse party. Produce
notice to produce it must be given to let in the secondary *^^^™^" •
evidence ; this is done to secure the best evidence if the party
be willing to produce it : see Dwyer v. Collins, 7 Ex. R. 639.
It is sufficient to dispense with the notice to produce if the
party has the required document in court : see Coates v. Birch,

2 Q. B. 252 ; Bate v. Kinsey, 1 Cr. M. & R. 38 ; Ros. Ev. 9.
It is not necessary where the document tendered in evi-
dence is a duplicate original. Fhillipson v. Chace, 2 Camp.
110 ; Collins v. Treweek, 6 B. & C, 398 ; or a counterpart ;
Burleigh v. Stibhs, 5 T. R. 465 ; Mayor of Carlisle v. Blamire,
8 East, 487 ; or where the document has been obtained pos-
session of by fraud or force : Coder ed v. Armour, 3 Q. B.
956 ; Doe v. Ries, 7 Bing. 724.

It is sufficient if the notice to produce leave no doubt but Notice to
that the party must be aware of the particular instrument produce
intended to be called for : Rogers v. Custance, 2 M. & R. ^«*^^-
179 ; as in Jacob v. Lee, ib. 33 ; Morris v. Hanser, ib. 392, in
which a general notice was given to produce all letters with-
out specifying any particular dates was held to be sufficient.

The giving the notice to produce any document or letter, Conse-
and the non-compliance therewith, does not authorise any q"ences of
inference against the party failing to produce it, unless it be *^^ notice
that the document was properly stamped : Cooper v. Gibbons,

3 Camp. 363. The non-production may give rise to matter
of comment : Bate v. Kinsey, 1 C. M. & R. 41. See 24 Beav.
679 ; Att.-Gen. v. Windsor (fiQun, &c.)

L 2

220

EVIDENCE.

The party
calling for
a document
must be
prepared
to prove it.

Secondary

evidence

where

originals

cannot be

produced.

Direct and
presump-
tive evi-
dence.

Circum-
stantial
evidence.

If the party receiving notice to produce a document neg-
lects to do so when called on, he cannot afterwards produce
it as part of his own case in order to contradict the secondary
evidence. Doe v. Hodgson, 12 A. & E. 135.

If the documents are called for and inspected, they will be
rendered evidence for the opposite party : Wilson v. Bovrie,
1 C. & P. 10 ; but not if he calls for them without inspecting
them : Sayer v. Kitchen, 1 Esp. 210.

On the party producing a document after notice, the one
requiring it must be prepared to prove it, and to place it in
evidence as a legal document. See Gordon v. Secretan, 8
East, 548 ; Sideways v. Dyson, 2 Stark. 49 j Graham v.
Dyst^,r, 2 ih. 23.

Inscriptions on a wall or tombstone, entries in public
registers and books, the production of which are incon-
venient or impossible, may be proved by secondary evidence :
Mortimer Y. McGallan, 6 M. & W. 68 ; 1 Taylor, Ev. 396. A
certified copy from the registrar of births, &c., evidence : R.
V. Weaver, L. R. 2 C. C. 85 ; 43 L. J. M. C. 13 ; 29 L. T.
544 ; 22 W. R. 190. See also the Bankers' Books Evidence
Act, 1879 (repealing the Act of 1876); Harding v. Williams,
49 L. J. Ch. 661. As to certified copies relating to public
companies, see the Companies' Act, 1877, 40 & 41 Vict.
c. 26.

All evidence in a court of justice either leads directly to
establish the fact in controversy, or affords a ground from
w^hich the existence of it may be inferred. The first is posi-
tive, the second presumptive proof. Positive evidence is
where the existence of some fact is the immediate and
necessaiy conclusion from the evidence. Presumptive evi-
dence affords only a probability, more or less strong, accord-
ing to the circumstances from which it is deduced.

The premises from which conclusions of a presumptive
nature may be drawm present all the variety of cases to be
conceived between the nearest approximation to certainty
and bare possibility. The presumption may be violent, and
afford competent legal evidence where the circumstances
clearly appear and the balance is not at all equivocal. Or
they may be proper subjects for deliberation and suspense,
in which those who have to decide in probable or doubtful
cases deliberate on the strength or weight of evidence, and
having struck a fair balance, decide according to the pre-
ponderancy. See " McNally's Rules of Evidence," 578.

The different modes of proof are again distinguished by
the terms " direct " or " circumstantial evidence." Direct

EVIDENCE. 221

evidence is meant when the principal fact, or factum }yro-
bandum, is attested directly by witnesses, things, or docu-
ments. To all other forms the term circumstantial evidence
is applied. Evidence operating in the way of inference from
circumstances otherwise called indirect or oblique (Vinnius,
Jurisp. Contr. lib. 4, c. 25), inferential and argumentative,
19 How. St. Trials, 33; Best on Presumptive Evidence;
Tayor on Evidence, sec. 65. To find a positive fact on
circumstantial evidence there should exist a reasonable and
moral certainty in support of it, and inconsistent with any
other rational conclusion. Circumstantial evidence may vary
in strength from the lowest possible amount to almost
certainty ; the first consideration is to see that the facts are
properly and conclusively proved ; and then to consider what
is the conviction left on the mind on which reasonable and
responsible men could feel themselves justified in acting in
any grave and serious matter in life.

" In dealing with circumstantial evidence," said Lord Lord
Cairns, in clear and forcible language, in The Belhaven and ^/^^^ns o"
Stanton Peerage Case, 1 App. Cas. 278, " We have to con- gJ^S
sider the weight which is to be given to the united force of evidence
all the circumstances put together. You may have a ray of and its
light so feeble that by itself it will do little to elucidate a effect.
dark corner. But on the other hand, you may have a
number of rays, each of them insufficient, but all converging,
and brought to bear upon the same point, and when united
producing a body of illumination which will clear away the
darkness which you are endeavouring to dispel."

As a general rule hearsay evidence is not admissible, as Hearsay
not being made under the sanction of an oath; Meers v. Lord evidence.
Stourton, 1 P. Wms. 146 ; Lord Shaftesbury v. Lord Digby,
2 Mod. 99 ; 2 St. Trials. 809.

Several exceptions may, however, be enumerated to this
proposition : —

1. Evidence which has already been given in judicial pro-
ceedings, and which cannot be obtained from the original
source ; as depositions or affidavits.

2. Statements contained in ancient documents on the
subject of ancient possessions.

3. Statements of deceased persons on questions of pedigree.

4. Evidence of public reputation on questions of public or
general right.

5. Statements of deceased persons speaking against their
own interest.

222

EVIDENCE.

1

6. Statements of deceased persons making entries, &c., in
the regular coui-se of their duty or employment.

7. Statements having reference to the health or sufferings
of the person who makes them.

8. Dying declarations (a).

9. To these may be added admissions or declarations
made by a principal, or his agent made during the continuance
of the agency in the pending transaction. B. v. Hall^ 8 C.
& P. 358; 1 Taylor on Evidence, 513, s. 602 (7th ed.).

I^he excluding of hearsay evidence in questions of pedigree,
prescription or custom would prevent all testimony whatever.
In these cases the law departs from its general rule, and
receives evidence of deceased persons, who, from their situa-
tion, were likely to know the facts ; and also the general
reputation of the place or family most interested to preserve
in memory the circumstances attending it. In other cases
such evidence might be wholly inadmissible.

The evidence of a dying declaration is admissible in no
civil proceeding ; see R. v. Ferry Fri/stone, 2 East, 54 ; ^. v.
Chadderton, ib. 27 ; R. v. Ahergivilly, ih. 63 ; 2 Stark. Ev. 369.
When hearsay evidence is introduced, not as a medium of
proof in order to establish a distinct fact, but as constituting
part of the res gesfce, it is admissible ; to exclude it might be
to exclude the only evidence of which the nature of the case
is capable. Such evidence is, in fact, more of the nature
of original evidence as verbal acts, and surrounding circum-
stances which may always be shown along with the principal
facts lb). Whether such evidence forms a part of the res gestce
is to be determined by the judge according to the relation-
ship they bear to the fact ; Rawson v. Haigh, 2 Bing. 104 ;
Ryde v. Gyde^ 9 ib. 349 ; see also Lord Campbell's remarks
in R. V. Bedfordshire^ 4 E. & B. 541.
Evidence of As to the admission of evidence of reputation whether a
reputation, road was public or private ; see R. v. Bliss, 7 A. & E. 555 ;

trimmed ; there was no other
evidence of a fight excepting the
exclamations of the crowd when
surprised by the officers. It was
held that what was said and done
upon the irruption of the officers
upon the company was admissible
in evidence as part of the res
gestce,: Commonwealth v. JRat-
cliffe, Massachusetts Law Repor-
ter, Law Journ. Paper. 2nd
April, 1881.

Dying de-
clarations.

Hearsay
evidence
when res
geitce.

(«) See Rascoe's Cr. Evid. 27.

(J)) An illustration of the res
gestce was before the Supreme
Court of Massachusetts, where
the owner of a gamecock was
charged with an intent to engage
him in an exhibition of fighting.
The police found the defendant
and a crowd of men collected in
the defendant's kitchen, and
found feathers on the floor, and a
gamecock with his wings

EVIDENCE. 223

the boundaries between counties, parishes, tkc, see Thomas
V. Jenkins, 6 ih. 525 ; Briscoe v. LomcLX, 8 ib. 198 ; Evaiis v.
Rees, 10 t6. 121; Plaxton v. X>«*re, 10 B. &. C. 17; the
limits of a town, Ireland v. Powell, Pea. Evid. 16 ; -S. v.
i^/u's (supra) ; a prescriptive liability to repair a sea wall,
R. V. Leigh, 10 A. & E. 398 ; or bridges, R. v. Sutton, 8 ib.
516 ; a claim of a highway, Crease v. Barrett, 1 C. M. &. R,
929 ; a right of ferry. Rim v. Curell, 6 M. & W. 234 ; a pre-
scriptive right to a toll, Duke of Beaufort v. Smith, 4 Ex. 450.

Reputation is inadmissible to prove a person's age : Gol- Age.
dough V. Smith, 10 L. T. 918 Ir. K.

In questions of boundaries, the fact of a perambulation Perambula-
having taken place, being evidence of the exercise of a right, tioii of
statements made by the perambulators are declarations ^.o^^^''^'
accompanying acts, and admissible in evidence, provided
they are not confined to particular circumstances : 1 Phil.
Evid. 248 ; Taylor v. Davey^ 7 A. & E. 415 ; Weeks v. Sparke,
1 M. & S. 687.

Where the case involves matters of public or general Matters of
interest wherein reputation is evidence, a verdict or judg- Public
ment on the matter directly in issue, though pronounced in "^^^^^ •
a cause litigated between strangers to the parties on the
record, is admissible in evidence ; not as tending to prove
any specific fact existing at the time, but as evidence of a
solemn adjudication by a competent tribunal upon the state
of facts, and the question of usage at the time : Rim v. Curell^
6 M. & W. 266 ; Rarl Carnarvon v. Villebois, 13 ib. 313 ;
Brisco V. Lomax, 8 Ad. & E. 198 ; R. v. Brightside Berloiu,
13 Q. B. 933; Petrie v. Nuttall, 11 Ex. 569.

To render declarations against interest admissible, it must Statements
appear by proof or presumption that the declarant is dead : against
Doe V. Michael, 17 Q. B. 276; Phillips v. Coll, 10 A. & E. interest.
106 ; Spargo v. Broivn, 9 B. & C. 935.

Oral declarations are admissible when made against the
party's interest : Stapylton v. C lough, 2 E. & B. 933 ; Fursdon
V. Clogg, 10 M. & W. 572. So also as to letters. Doe dem.
Brune v. Rawlins, 7 East, 279 ; Doe v. Turf or d^ 3 B. & Ad.
898 ; SlwH V. Lee, 2 J. & W. 475.

The declaration of a deceased mother as to the time of Evidence of
the birth of her child is admissible in evidence in all cases pedigree.
of pedigree, and so, therefore, in cases of settlement of a
pauper : R. v. Birmingham (a), 9 B. & C. 925 ; 4 M. & R.

{a) R. v. Birmingham is mis- reference to the place of birth as
quoted in Burn's Justice of the there stated. See Pendrill v.
Peace, tit. " Poor," 331. It has no Pendrill, 2 Str. 924.

224

EVIDENCE.

Place of
birth.

Entries in
the family
Bible.

Entries
made in
books in
the course
of a duty.

Entries in
rate books.

691. This case is also treated of in Hubback on Succession,
660 ; 1 Taylor's Evidence, 507 ; see also Hubback on Succes-
sion, 468, referring to Hood v. Lady Beachamp, 8 Sim. 26 ; also
Monckton v. the Attorney-General, in which Lord Brougham,
L. C, draws the distinction between questions of pedigree
and what is evidence of detail ; 2 Russ. & Alyl. 162.

It is only in reference to a matter of pedigree that such
evidence could be admitted ; in Whittaker v. Waters, 4 C. &
P. 375, Park, J., rejected such evidence as to the death of
a cestui que trust on the ground that it was not a question of
l)edigree. See also R. v. Rishworth, 2 Q. B. 476, 483, 485,
487 ; R. V. Yelverton, 6 Q. B. 801 ; R. v. Ecclesall Bierlow,
11 A. & E. 607 ; R. v. Chudderton, 2 Ea. 27. It is no evi-
dence of the place of birth : R. v. Erith, 8 East, 539. Entries
made in the family Bible, produced from the proper custody, are
evidence of pedigree without proof of handwriting or author-
ship : Huhbard v. Lees, L. R. 1 Ex. 255 ; 35 L. J. Ex. 169 ;
14 L. T. 442 ; 4 H. & C. 418.

The place of birth may be proved by some person who saw
the. mother in the parish immediately before and after the
event, and saw the offspring, and can give some evidence
of identity : R. v. Trmvbridge, 1 Man. & R. 7 ; 7 B. & C.
252.

The register of baptism is not alone evidence of the place
of birth : R. v. NoHh Petherton, 5 B. & C. 508 ; 8 D. & R.
325. It is only evidence of the christening, per Lord Mans-
field, C. J., Goodright v. Moss, Cowp. 591. Where, however,
there is evidence of a continuous residence in the parish of
the parents in addition to the register of baptism, such a
combined testimony has been held sufficient to prove the
place of birth : Creech St. Michael v. Pitminster, Burr. S. C.
765 ; Bott, 28.

In a question of the settlement of a pauper by hiring and
service, the entries in the books of the deceased master
showing the pauper was engaged for half a year only were
rejected as evidence on the ground that although it might
be the practice for him to make such entries, it was not his
duty : R. v. Worth, 4 Q. B. 132. See also Brain v. Preece,
11 M. & W. 773. But where an entry is made in the
master's book of the terms of the contract, it cannot be
received by oral evidence : Evans v. Roe^ L. R. 7 C. P. 1 38 ;
26 L. T. 70.

An entry of receipts in a rate-book by a deceased clerk or
collector duly appointed will be evidence of the payment of
rates : R. v. St. Mary, Warwick, 22 L. J. M. C. 109. Such

EVIDENCE. 225

an entry was in the performance of a duty, and therefore
admissible : see Davies v. Lloyd, 1 C. & K. 275.

The report of facts necessary to the performance of a duty, Extraneous
but beinjr the statement of extraneous circumstances, how- ^"t"^^ "^t
ever naturally they may be thought to find a place in the
narrative, is no proof of those circumstances : Chambers v.
Bernasconij 1 C. M. & R. 368 ; per Lord Denman, C. J. See
Fercival v. Nanson, 7 Ex. 3 ; per Pollock, C. B.

The entry must be contemporaneous with the Act to which Entry con-
it relates : Doe v. Beviss, 18 L. J. C. P. 128 ; 7 C. B. 456 ; tempora-
Doe V. Skinner, 3 Ex. 84 ; Doe v. Turford, 3 B. & Ad. 890 j ''^'*'''-
///// V. Hibbit, 19 W. R. 250, James, V.-C.

To make declarations or entries admissible, the death of Person
the party making them must be clearly proved ; showing making the
him to be dansrerously ill will not be sufficient. Butler v. ^"*^^^^
Mountgarett, 7 H. L. C. 633. See also Harrison v. Blades, ^^^^ before
3 Camp. 457 ; Manby v. Carter, 1 Price, 225 ; Cooper v. entrymade.
Marsden, 1 Esp. 1 ; Folini v. Gray, Sturla v. Freccia, 12 Ch.
D. 411 ; 49 L. J. Ch. 41 ; 40 L. T. 861 ; 28 W. R. 81, C. A.

Except where the entries appear in books kept in certain Except
public departments, as by officers of excise and inland where made
revenue, when the entries made by authorised persons are "y P""i»c
proofs of the facts recorded. But these entries are ad-
mitted under special enactments, otherwise the general rule
prevails.

In an excise information entries in the excise survey books Entries in
are evidence of the facts entered therein of the trade carried excise sur-
on by a defendant, without calling the officers to sub- ^^^ books,
stantiate them : R. v. Grimwood, 1 Price, 369 ; cited in
Manning's Exch. 227. See also Highmore's Proceedings in
Revenue Cases, 43. See also 7 & 8 Geo. 4, c. 53, s. 19 ;
and since August, 1867, see 30 & 31 Vict. c. 90, s. 12.

The counterpart of the permit with request note will be The per-
evidence without producing the original: 2 Will. 4, c. 16, mit.
s. 19.

All entries made in proceedings by the Crown are evidence Crown
for the Crown : Ellis v. Watson, 2 Har. R. 453 ; 7 & 8 Geo. entries.
4, c. 53, s. 19.

The fact of rating can only be legally proved by the pro- Bate books,
duction of the rate books. R. v. Coppidl, 2 East, 25 ;
recognised by Pattison, J., in R. v. Stapleton, Fitzpaine, 2
Q. B. 494. Vestry books are recognised as public docu- Vestry
ments : Swift v. Tierman, 1 1 Ir. R. Eq. 602 ; Willand v. ^o^*^-
Lord Middleton, ib. 603. So also are registers of marriages
made abroad and kept by the British consul since July 28,

J. 3

226

EVIDENCE.

Marriage
registers
kept
abroad.

Quarter
sessions
records.

Convictions
recorded at
quarter
sessions.

Proof of an
officer
acting in
a public
capacity.

Assistant
overseer.

Excise
officer.

Officer em-
ployed in
the pre-
vention of
smuggling.

When

1849 : 12 & 13 Vict. c. 68, ss. 12, 17 ; see Ros. N. P. Evid.
968.

The orders of quarter sessions respecting the removal of
paupers may be proved by the proper books and entries
made by the clerk of the peace, and no more formal entry be
kept : E. v. Yeoveley, 8 A. & E. 806. As to whether the
record is conclusive between the parties would depend on
whether it was a decision on the merits : see tit. " Appeal,"
infra; R. v. Leeds, 9 Q. B. 910; R. y. Macclesfield, 13 Q. B.
881 ; and other cases.

All convictions made at petty sessions are recorded at the
quarter sessions : see Ex parte Haywnrd, 3 B. & S. 546 ;
Factories and Workshop Act, 1878, 41 & 42 Vict. c. 92;
and see also infra tit. " Summary Convictions."

Upon the maxim, " Omnia presumuntur esse rite et solem-
niter acta donee probetur in contrarium,^' it is a presumption
of law that a person acting in a public capacity, as a peace
officer, justice of the peace, &c., is duly authorised to do so :
R. V. Verelst, 3 Camp. 432 ; Gordon's Cases, 6 H. & N. 145 ;
27 L. J. Ex. 176. See also Radford v. Mcintosh, 3 T. K.
632; Brewster v. Sewell, 3 B. & A. 302; Tay. Evid. § 431,
2nd ed.

So proof that a person fills the office of churchwarden is
primd facie evidence of his having been lawfully appointed,
even where the title turned on the question of his right
to the possession of land as churchwarden. Granville v.
Utting, 9 Jur. 1081 ; Doe d. Rowley v. Raines, 15 L. J. Q. B.
293 ; 8 Q. B. 1037.

So the acting assistant overseer is evidence of the appoint-
ment. Tindal, C. J., Cannell v. Curtis, 2 Bing. N. C. 228 ;
S. C. 2 Scott, 379 ; McGahey v. Ahtmi, 2 M. & W. 206 ; Doe
V. Barnes, 8 Q. B. 1037.

An excise officer may prove his official position by the fact
of actually keeping an office of excise, or being a reputed
commissioner or collector, or officer, and acting as such. 26
Geo. 3, c. 77, s. 12; 7 & 8 Geo. 4, c. 53, s. 17; 39 & 40
Vict. c. 36, s. 261. See Highmore's Sum. Proceedings in
Inland and Revenue Cases, p. 40.

On a question arising whether an officer of the army, navy
or marines employed in the prevention of smuggling and on
full pay, or officer of customs or excise, is duly appointed to
act, his own evidence thereof, or other evidence of his having
acted as such will be sufficient, without producing the appoint-
ment. 39 & 40 Vict. c. 36, s. 261.

Where primd facie it is shown that a person exercises a

EVIDENCE. 227

particular office, the party disputing it, it would seem, should official
show he is not duly appointed or licensed. See Gremaire v. authority
Le Clerk Bois Valon, 2 Camp. 144. However, when no ad- ^'^pute.!.
mission has been made of the title of the officer to act, and
no special Act provides for the proof, the safer course will be
to be prepared to prove the appointment in the ordinary way.
Tay. on Evi. § 141, p. 151, 2nd. ed.

The general rule is that the burthen of proof lies on the Bxirthen of
party asserting the affirmative of the issue or question in ^^^^ "
dispute, and for which is the maxim, ^^ Eo incumbit prohatio
qui dicit non qui Tiegat." " This is a rule to which the com-
mon sense of mankind at once assents," remarks Best in his
work on Presumptive Evid., p. 358. See also Tay. Evid.
p. 3.32.

In appeal cases generally the respondent begins, as the Respon-
affirmative and main issue is on him to prove : or should the , ^^^ *^
appellants admit the whole of the respondents' case, and set "
up an affirmative issue in reply, then the appellants will
begin, the issue resting on them.

In appeals against a conviction, the law presuming inno-
cence until the guilt be proved, the issue is (except in
revenue cases) on the respondent to prove.

Where an exception or proviso is mixed up with the Where
offence in the same clause in the statute, like in an indict- negative
ment, an information must show negatively, that the party ^^^^™^° '^•
or matter pleaded does not come within the meaning of such
exception or proviso. These negative averments were formerly
to be proved by the prosecutor ; but the correct rule now is,
that in cases where the subject of such averment relates to
the defendant personally, or is peculiarly within his know-
ledge, the negative is not to be proved by the prosecutor,
but on the contrary, the affirmative must be proved by the
defendant as matter of defence ; but, on the other hand, if
the subject of the averment do not relate to the defendant
personally, or be not within his peculiar knowledge, but
either relate personally to the prosecutor, or be peculiarly
within his knowledge, or, at least, be as much within his
knowledge as within that of the defendant, the prosecutor
must prove the negative. Arch. Cr. PI. 222 ed. 1875 ; 228
ed. 1878. (See post, sec. 39, Sum. Juris. Act, 1879.)

Thus : — Informations for selling ale without a licence
must negative the existence of the licence ; but the defen-
dant must prove he has a licence, and the informer need not
prove the negative : Ji. v. Hanson, K, B. M. T. 1821; Paley
on Convic, p. 129 [6th ed.] M.S. As to killing game without

228

Burthen
»>hifted in
revenue
cases on the
defendant.

EVIDENCE.

Effect of
Summary
Jurisdic-
tion Act,
1879,8.39,
(2), on
negative
averments.

Examina-
tion of the
■ftitness.

1 Stark,
on Evid.
169.

a qualification, see B. v. Turner, 5 M. & S. 206 ; see also
JR. V. Gilroys, 4 Sc. Sess. Ca., 3rd series, 656.

In proceedings for the protection of the Inland Kevenue
the burthen of proof has been shifted by the legislature in
some instances, and is cast on the defendant. And in case
of any seizure the proof that the duty has been paid, or that
the goods, commodities or things seized as forfeited, are not
of the sort or iiind alleged in the information, lies in the
proprietor or claimer : 7 & 8 Geo. 4, c. 53, s. 76.

As to servants or carriages, see 32 & 33 Vict. c. 14, s. 27 :
As to dogs, see 30 & 31 Vict. c. 5, s. 8 ; 41 & 42 Vict. c. 15,
s. 19 : as to beer, see 23 & 24 Vict. c. 113, s. 36 ; 6 Geo. 4,
c. 81, s. 26 : as to the quantity of gold or plate contained in
an article sold, see 30 & 31 Vict. c. 90, s. 5 : as to spirits -sold
under a permit, see 43 & 44 Vict. c. 24, s. 105 (9).

The Summary Jurisdiction Act, 1849, s. 39, sub-s. 2, has
this enactment : — Any exception, proviso, excuse, or qualifi-
cation, whether it does or does not accompany in the same
section the description of the offence in the Act, order, bye-
law, regulation, or other document creating the offence, may
be proved, but need not be specified or negatived in the
information or complaint, and if so specified or negatived,
no proof in relation to the matter so specified or negatived
shall be required on the part of the informant or com-
plainant. This section will not, however, affect the Crown,
as in Revenue cases : see also 11 & 12 Vict. c. 43, s. 14.

Although as a general rule " leading questions," that is,
questions which suggest the answer desired, or which admit
of a conclusive answer by a simple negative or affirmative,
are not allowed ; still, to abridge the proceedings, and to
bring a witness to the material points, the counsel may lead
him on to that extent, and may refer to acknowledged facts
in the case which had been established : see NichoUs v.
Dowding, 1 Stark, R d)\,per Lord Ellenborough. So a lead-
ing question may be put to refresh a witness's memor}^ where
an omission is evidently caused from a want of recollection,
which the suggestion may assist : Acerro v. Petroni, ih. 100,
Lord Ellenborough. So, where he is called on to identify
a particular person : R. v. Watson, 32 How. St. Tr. 74, jptr
Lord Ellenborough; 2 Star, R. 128 (S.C.); R. v. Berenger,
ib. 129. So also, where a witness is called to contradict
another as to the contents of a lost letter, and who cannot,
ofl'-hand, recollect all its contents, the particular passage
may be suggested to him, at least after his unaided memory
has been exhausted : Courteen v. Touse, 1 Camp, 43, jyer Lord

I

EVIDENCE. ^29

Ellenboroiigh. So also, where the witness is called to contra-
dict another who has denied using certain expressions, the
particular words may be put to him : Edmunds v. Walter^ 3
Stai'. R. 8, per Abbot, C. J. The Court has a general power
of relaxing the rule in allowing leading questions, and such a
mode of examination (which might approach more to the
form of cross-examination) will be allowed where the witness,
by his conduct, shews himself adverse and hostile to the
party producing him, or interested for the other party, or
evidently unwilling to give evidence : Clarke v. Saffery^ Ry.
& M. 126; Chapman's Case, 8 C. & P. 558, Lord Abinger, C.B.

A witness must only depose to facts within his own To speak to
knowledge, unless where the question is one of reputa- facts with-
tion. See Bonfield v. Smith, 12 M. & W. 405. He is j^^^^'^"^-
not required to speak with a certainty excluding all doubts ° '
in his mind. He may disclose his own personal recollection^
leaving the weight to be judged by others. R. v. Strafford, 7
How. St. Tr. 1378-80, per Lord High Steward Finch. Millers'
case, perDeGi-Qj, C. J., 3 Wils. 427 ; Tay. Evd. 7th ed. 1188.

Experts and scientific witnesses may give evidence of their Experts,
belief and opinion, and draw inferences respecting the
fact in question, from other facts, provided they are within
his personal knowledge. See Miller's case (sup.) Folkes v.
Chadd, 3 Doug. 159 (Lord Mansfield); R. v. Schlesinger,
10 Q. B. 670 ; Ros. N. P. Evid. 14 ed. p. 175.

In some cases the party principally interested is, by Corrobora-
euactment, to be specially confirmed, as in the case of a ^^P'^ ^^
mother affiliating a child on the alleged father, when she is ^""®^^"
required to be confirmed in some ma^(S?"i«^ particular. " This
rule has been wisely established, in order to protect men
from accusations which profligate, designing, and interested
women might easily make ; and, which, however false, it
might be extremely difl&cult to dispute." See Tay. Evi.
§ 964, 7th ed. (See tit. "Affiliation.")

Collateral facts are excluded when they cannot raise any Collateral
fair influence respecting the matter in issue ; but they may be ^^^*^'
admissible when used for the purpose of establishing a
person's identity, or of corroborating a witness in some
material particular. Tay. Evi. §. 335, 7th ed.

How far a party may be at liberty to contradict his own A party
witness has formed the subject of salutary enactment in the cannot
Common Law Procedure Act, 1854, 17 & 18 Vict. c. 125, ^^^^^l
sec. 22, which set at rest a question which had for many witness,
years agitated Westminster Hall. "A party producing a
witness shall not be allowed to impeach his credit by general

230

EVIDENCE.

Cross-ex-
amination.

evidence of bad character, but he may, in case the witness
shall, in the opinion of the judge, prove adverse, contradict
him by other evidence, or by leave of the judge, prove that
he has made at other times a statement inconsistent with his
present testimony ; but before such last-mentioned proof
can be given, the circumstances of the supposed statement,
sufficient to designate the particular occasion, must be
mentioned to the witness, and he must be asked whether
or not he has made such statement '' (a). Such two state-
ments need not be directly and absolutely at variance.
Jackson V. Thomason, 31 L. J. Q. B. 11.

This rule is confined to courts of civil procedure. See R.
V. Williams, 6 Cox, C. C. 343 : 2 Russ. C. & M. 897 ; as to
criminal cases, see 28 Vict. c. 18, sec. 4, 5 ; B. v. liiley, 4
F. & F. 964 ; R v. Wright, ib. 967.

The exercise of the right of cross-examination is an effica-
cious test for the discovery of the truth : and it is not easy
for a witness, however artful, to impose fabricated evidence
embracing circumstances to which a cross-examination may
not extend. Gr. Evi. §. 446.

On this subject Alison remarks, that where a witness is
prevaricating or concealing the truth, it is seldom by intimi-
dation or sternness of manner that he can be brought to let
out the truth. The most effectual method is to examine
rapidly and minutely, as to the number of subordinate and
apparently trival points in his evidence, concerning which
there is little likelihood of his being prepared with falsehood
ready made ; and where such a course of inteiTogation is
skilfully laid, it is rarely that it fails in exposing perjury or
contradiction in some parts of the testimony, which it is
desired to overturn. Alison's Pract. 546, 547.
The wit- To entitle the opponent to the right of cross-examination

ness must ^}^q -v^jtness must have been sworn. If he be merely called
to be cross- ^^ ^ ^^^ ^^^' ^^^^^^ ^^^ t^^® producing a document, and is not
examined sworn, he cannot be cross-examined. Summers v. Moseley,
2 Cr. M. 477 ; Rush v. Smith, 1 C. M. & R. 94 ; Griffith v.
Rickeits, 7 Hare, 300. So if sworn by mistake and examination
not substantially begun. Rush v. Smith (sujj.) ; Wood v.
MacJcinson, 2 M. & Rob. 273, Coleridge, J. But if the witness
be intentionally called and sworn, and is a competent
witness, although the party calling him has declined to ask
a question, the other side may cross-examine him : Wood v.

(a) This clause is adopted from the New York Civil Code. sees.
1845, 1848.

EVIDENCE. 231

Mackinson (sup.) ; Phillips v. Eames, 1 Esp, 357. (Lord

Kenyon, C. J.), R. v. Brooke, 2 Stark. R. 472 (Lord

Tenterdeu, C. J.)

In general, leading questions maybe put in cross- examina- Leading

tion (a), but some restriction should be put on this, where questions

the witness betrays what Mr. Taylor terms " a vehement l^f ''J'-'^^J
. <( . . - /;\ /m T-i • c examina-

desire to serve the cross-exammmg party (6). (lay. ii.vi. §. tion.

1228, 2nd ed.) Questions cannot be put on an assumption
of facts as proved which have not been proved ; or that par-
ticular answei's have been given contrary to the fact. Hill v.
Coomhe and Handley v. Ward (cited 1 St. Evi. 188, note n.
Abbott, C. J.).

The questions put in cross-examination must be in respect The point
to facts relevant to the issue, and cannot otherwise be put ^" ^^^"®
for the mere purpose of impeaching his credit : but if put adhered to
and answered, the answ'er will be conclusive. See Tennant v.
Hamilton, 7 CI. & Fin. 122, H. L.

The answers to questions tending to impeach the character Impeach-
of a witness — first, need not be answered ; and if answered ^^S charac-
(beiug irrelevant) must be taken as conclusive and cannot be
contradicted. B. v. Watson, 32 How. St. Tr. 486, 495 ; 2
Stark. R. 149 ; Atty.-Gen. v. Hitchcock, 1 Ex. R. 93, 94, per
Parke, B., 103, 104, per Alderson, B.

But if the question be whether or not the witness has
been convicted of any felony or misdemeanour, a former con-
viction may be put in to contradict him. Com. Law Proc.
Act, 1854, sec. 25.

It was laid down in The Qtiee7i's Case that where a Contradic-
witness was to be contradicted by a statement made by him ^^ry state-
in some letter or other writing, the document must be pro- J^®^ ?,"^^ ^
duced as his evidence, and read, in order to found questions [^ writin''.
upon it. "This was," said Lord Brougham (c), *' excluding one
of the best tests by which the memory and integi'ity of a
witness could be tried." Now the rule of law is provided by
the Common Law Procedure Act, 1854, sees. 24, 103,
whereby a witness may " be cross examined as to previous
statements made by him in writing, or reduced into writing,
relative to the subject-matter of the cause, without such
writing having been shown to him ; but if it is intended to
contradict such witness by the writing, his attention must,

(rt) Leading questions in cross- the discretion in prohibiting such

examination are not allowed in questions ; Moody v. RmnU, 17

Scotland : Burnett, Cr. Law, c. Pick. 498. Cited in Tay. Evid.

18, 465 ; 24 How. St. Tr. 660, n. §. 1288, 2nd ed.

(J) In America a judge has (c) Speech on Law Reform.

232

EVIDENCE.

Impeach
ing the
credit of

in an

aililiation

case.

before such contradictory proof can be given, be called to
those parts of the writing which are to be used for the pur-
pose of so contradicting him : provided always, that it shall
be competent for the judge, at any time during the trial, to
require the production of the writing for his inspection ; and
he may thereupon make such use of it for the purposes of
the trial as he shall think fit (a). "

Where questions are put to the mother of a bastard child
in an affiliation appeal as to whether she had had illicit con-

ciemt oi i^ection with some other man than the putative father, if
the mother , , • • i .^ , i -1,1^1

the connection is such as that another might be the father

of the child, the mother may be contradicted by independent

testimony : but otherwise the questions would be irrelevant,

and the answers given would be conclusive (6). See Garbett

V. Simpson, 32 L. J. M. C. 186 ; 8 L. T. 423 ; B. v. Holmes

and AnotJier, 41 L. J. M. C. 12.

But the witness's testimony may be impeached hy evidence
disproving the facts stated by him as are material to the
issue ; or of statements made inconsistent with former testi*
mony ; or evidence may be adduced reiflecting on his
character for veracity. But this class of evidence must be
confined to his general reputation, and not refer to particular
facts. R. V. Rookwood, 13 How. St. Tr. 210, Sir Thomas
Trevor (in arg.) Attorney-General; R. v. Layer, 16 How.
St. Tr. 285, per Pratt, C.-J. ; Fenny v. Watts, 2 De Gex k
Sm. 501, 527, 528. To refer to particular facts would be
raising immaterial and collateral issues : R. v. Rookwood
{sup.), per Lord Holt, C.-J. ; and see sees. 1324, 1325, and
notes, Tay. Evi. 2nd ed.

The re-examination will be confined to such matters as
have been cross-examined to : and if irrelevant questions
have been answered, and not struck out of the judge's notes,
they may be fully re-examined upon. See Bleivitt v. Tre-
gonning, 3 A. & E. 554, 565, 581, 584.

[For particular evidence in respect of the several matters
in this work, reference is made to the articles under each
title.]

Re-examin
ation.

(a) See the 2nd report of the
Common Law Commissioners,
pp. 19—21.

(J) Should the court of ses-
sions have allowed evidence to be

admitted to contradict the irrele-
vant replies, perjury may be as-
signed on such evidence if false :
II. V. Gibbons. 31 L. J. M. C. 98 ;
5 L. T. 805.

EXCISE. 233

EXCISE.

See "Ale-houses;" "Weights and Measures."

By the Customs Consolidation Act, 1876, 39 & 40 Vict. Defini-
c. 36, s. 284, for the purpose of construing the Customs *^^°^*
Acts, " county " shall mean any city, county of a city, or
town, borough or other magisterial jurisdiction ; and ''^jus-
tice " shall mean and include justice of the peace, county
court judge, recorder, and any other magistrate in the United
Kingdom, &c.

Under 7 & 8 Geo. 4, c. 53, s. 65, the recovery of any "Where
penalty imposed in relation to the revenue of excise where prosecu-
the offence has been committed within the limits of the chief „^^^:<,
office of inland revenue in London, as defined by sec. 14, sioners.
would be proceeded for before three or more commissioners
of the inland revenue, with an appeal to the commissioners
of appeal, 7 <fe 8 Geo. 4, c. 53, s. 82, and afterwards to the
the Barons of Exchequer [see Sup. Ct. of Jud. Act, 1875, s.
21 ; Or. 1875, LXII. ; 44 & 45 Vict. c. 68 ; Or. in Council
Nov. 27, 1880], 4 & 5 Vict. c. 20, s. 26.

The limits of the commissions include the cities of London
and Westminster, the borough of Southwark and suburbs
thereof, and parishes within the weekly bills of mortality,
and the parishes of St. Marylebone and St. Pancras, Middle-
sex. 7 & 8 Geo. 4, c. 53, s. 14, and 12 & 13 Vict. c. 1, s. 5.

Since the 30th June, 1852, however, a concurrent
jurisdiction has been conferred on the metropolitan magis-
trates (a) under 15 & 16 Vict. c. 61, s. 1, and the commis-
sioners have practically ceased to exercise their powers under
the statute.

The metropolitan magistrate exercising a concurrent juris-
diction with the commissioners, no appeal to the quarter
sessions will lie from their decisions ; but the appeal will be
to the commissioners of appeal, and then to the " Barons " of
the Exchequer, as would be the case in an appeal from the
commissioners.

Where the offence has been committed, or the person Before
committing it is found, or the goods, commodities or chattels justices.
seized in any part of the kingdom out of the limits of the
chief office, the information must be exhibited before a jus-
tice of the peace for the county, &c., or place wherein the
offence shall been committed (6), or the persons committing

(a) Those informations are (&) See, as to a justice acting

usually heard at Bow-street. for his own jurisdiction when

234.

EXCISE.

General

provisions
as to local
jurisdic-
tion.

Officer of
excise not
to act as a
justice.
The infor-
mation.

Limit of
time.

When to
be on oath.

Notice to
defendant.

Formation
of the
informa-
tion.

the same shall be found, or the goods, commodities, or
chattels shall have been seized ; and be heard and deter-
mined by any two or more justices of such county, &c., or
place. 7 & 8 Geo. 4, c. 53, s. 65.

As to a justice acting in a local jurisdiction, see The Sum-
mary Jurisdiction Act, 1879, sec. 46. In a detached part of
another county surrounded in whole or in part by the
county for which the justice acts, see 2 & 3 Vict. c. 82, s. 1 ;
7 & 8 Vict. c. 61 ; 11 & 12 Vict. c. 42, s. 7.

No officer of excise, or trader subject to the excise laws,
can act as such justice on an excise information. 7 & 8
Geo. 4, c. 53, s. 68.

No proceeding can be taken except on an information,
and which can only be laid (excepting in cases of pro-
ceedings upon immediate arrest) before a justice of the peace
having jimsdiction, by order of the commissioners of excise
or customs, and in the name of the attorney-general ; other-
wise the proceedings will be null and void. 7 & 8 Geo. 4,
c. 53, s. 61 ; see also 39 & 40 Vict. c. 36, s. 256.

The time for laying the information is limited to six
months after the offence under 11 & 12 Vict. c. 43, s. 11, and
c. 118, s. 3 ; and three years by 39 & 40 Vict. c. 36, s. 257.

The information need not be made on oath unless a
wan-ant is to issue on it in the first instance. 11 & 12 Vict,
c. 43, 8. 10.

Notice of the information must be given to the defendant
within a week after its exhibition. 4 & 5 Will 4, c. 51,
s. 19.

The jurisdiction of the acting justice should be properly
described. See B. v. Dohhyn, 2 Salk. 474 ; and it was in the
older cases held that the date should be accurately stated
showing the proceedings had been taken in due time. R. v.
Fuller, 1 Lord Raymond, 510; ^. v. Kent, 2 ib. 1546 ; but
it was recently held that it is not necessary to state in
the information the offence was committed within the six
months. Wray\. Toke, 17 L. J. M. C. 183; 12 Q. B. 492 ;
see also R. v. Stevenson, 2 East, 362 ; nor need the precise day
be proved on which the offence w^as committed ; R. v. Simpson,
10 Mod. R. 248. See 39 & 40 Vict. c. 36, s. 223.

Exemptions, provisos, excuses, or qualifications need not be
specified or negatived. 11 & 12 Vict. c. 43, s. 14; 42 & 43

within an adjoining city, &c.,
haying exclusive jurisdiction, 11
& 12 Vict. c. 43, s. 6 ; ib. c. 42,

s. 6. Where a county justice has
concurrent jurisdiction in a city,
see 39 & 40 Vict. c. 36, s. 231.

EXCISE. 235

Vict. c. 49, 8. 39 ; (2) and if specified or negatived no proof in
relation thereto will be required {ib.). Where, however, an
act done under certain circumstances might be lawful, but
if done otherwise it would be unlawful — the information
should negative these circumstances, and also in the proof.
Fletcher v. Caltkrop, 6 Q. B. 880; 14 L. J. Q. B. 49.

Where any particular fact or circumstance is an essential
ingredient to the constituting the offence, such fact or cir-
cumstance should be set out in the information : as, where a
person keeps a licensed house 0])en beyond the allowed hours,
the time the house was kept open should be alleged. I^ew-
man v. Earl Hardvncke, 8 A. & E. 124 ; see also R. v. Farrott^
2 M. & S. 378. As to where it may be necessary to specify
some particular act which, being prohibited had been com-
mitted, or being enjoined, had been omitted.

All statements in the information should be made without
ambiguity, and must distinctly show the defendant has com-
mitted, or omitted, some act on which a penalty is imposed
by the Acts. See F. v. Jukes, 8 T. R. 536 ; R. v. Trelamney,
1 T. R 222 ; Atty-Gm. v. Dyer, 2 C. & M. 664.

An information in the disjunctive or alternative is bad.
R. V. Morley, 1 Y. k J. 221 ; R. v. North, 6 D. & R. 143 ;
Ex parte Fayne, 5 B. & C. 251. The alternative may, how-
ever, be mere surplusage, as using the term " bartering or
selling," under 16 & 17 Vict. c. 67, s. 15, might be used to
avoid a technical objection whether there was a sale or not ;
see Bruce v. Linton, 34 (Scottish) Jurist, 80. Nor can there
be more than one offence charged ; 11 & 12 Vict. c. 43, s. 10.
There may be a cumulative statement of one offence. In
Newman v. Bendsyshe, 10 A. & E. 11 ; 2 P. & D. 340, it was,
however, held that a charge for keeping a house open for the
sale of beer, and selling beer, and suffering it to be drunk on
the premises — was charging three offences. Charging the
" keeping and using a dog and also a gun to kill and destroy
game," Lord Kenyon held constituted only one offence, as the
defendant being in pursuit of game could only be convicted of
the one offence on the same day. R. v. Lovett, 7 T. R. 152.
On the same principle, where a defendant " received and took
into, and had in his custody and possession a large quantity
of liquorice," it was only as one offence. Lockwood v. The
Atty.-Gen., 10 M. & W. 464.

There are some specific changes which should be specially
described, although to describe the offence in the words of
the Act, or in similar words, would be sufficient : see
42 & 43 Vict. c. 49, sec. 39(1). Such as :— That the de-

236

EXCISE.

No objec-
tion on
defect of
form.

The sum-
mons.

Service of
the sum-
mons {b).

feudant sold beer by retail without having a licence in force
authorising him so to do," 23 & 24 Vict. c. 113, s. 37 : —
" That the defendant used and carried a gun without having
a licence in force under the Act," 33 & 34 Vict. c. 57, s. 7 :
— " That the defendant did deal in plate without a proper
licence in that behalf," 30 & 31 Vic. c. 90, s. 3.

Where the charge is the offering a bribe to a custom-
house or excise officer, the value of the bribe need not be
stated: B. v. Gamble, 16 M. & W. 384 ; 16 L. J. M. C.
149.

In such an information it is no variance or misstatement
of the oflBcer's name if it be the name he is usually known
by: Attorney-General v. Uaxvkes^ 1 C. & J. 121 ; 1 Tyr. 3.

No objection can be taken on defect of form either in
the information or summons : 7 & 8 Geo. 4, c. 53, s. 73 ;
11 tfe 12 Vict. c. 43, ss. 1 — 3. Yet great care should be
taken in framing the information to meet the material
charge, as it is the very foundation of the jurisdiction of the
justices. See Cave v. Mountain, 1 M. & G. 257 ; Gar-
penter v. Mason, 12 A. & E. 629 ; R. v. Bolton, 1 Q. B. QQ ;
Blake v. Beech, 1 Ex. D. 320 ; 36 L. T. 723 ; 45 L. J. M. C.
Ill; Grepps v. Durhon, 1 Sm. L. C. (8th ed.), 730 {in
notis). See 39 & 40 Vict. c. 36, s. 228.

Any one justice may receive the information, and issue
the summons ; and after the hearing before two justices,
any one of the said justices may issue his warrant to enforce
the conviction, 7 & 8 G. 4, c. 53, s. 7 ; 4 & 5 W. 4, c. 51, s. 19.

The proceedings will be valid notwithstanding the death
or absence of the justice issuing the information, 7 & 8 G.
4, 0. 53, s. 7 ; 4 & 5 W. 4, c. 51, s. 19 ; or his ceasing to
hold office. S. J. A. 1879, s. 19.

Under 4 & 5 Will. 4, c. 51, s. 19, the summons must be
served on every defendant within a week after exhibiting
the information, and ten days at least before the hearing (a).
But where the information is exhibited for the recovery
of double the amount of duty neglected to be paid
(4 & 5 Will. 4, c. 51, s. 19), it will be sufficient for the
summons to be served twelve hours at the least before the
time appointed for the hearing.

The service will be effected by leaving the summons at

(«) These days are exclusive of
the day on which the information
was exhibited and the day ap-
pointed for the hearing : Hardy
V. Ryle, 9 B. & C. 603 ; YouTtg v.

Higgin, 6 M. & W. 49 ; B. v.
Shropshire, 8 A. & E. 673.

{h) Also 39 k 40 Vict. c. 36, s.
227.

EXCISE. 237

the party's place of business, or place where the offence
was committed ; or at his residence, or with his wife, child,
or servant, the same being directed to the defendant by his
right or assumed name, or where the offence had been
committed or discovered in transit, or seizure made in
transit ; and if the place of business or residence of the
offender be unknown, it will be sufficient to affix the sum-
mons in some conspicuous part of the nearest office of the
inland revenue where such offence had been committed, or
discovered, or seizure made, directed to the offender or
offenders, by his or their right or assumed name, if known,
and if not known, without any name or names (sec. 19).

In the case of a traveller for an unlicensed wine merchant
incurring a penalty under 30 & 31 Vict. c. 90, s. 17, and the
place of business is unknown, the summons may be left
at the house where the person solicited orders. (Same,
17th sec.)

Service on a public company will be made by leaving the Service of
summons, or sending it through the post in a prepaid letter, ^^^ ^^^^'
addressed to the company at their registered office (a), ^^^^ °^ ^
25 & 26 Vict. C. 89, S. 62. company.

The service of a summons on a person in custody is to On a per-
be effected by giving it to the keeper of the prison, 7 & 8 ^^^ ^^
Geo. 4, c. 53, s. 77. ""'*°^y-

For service in another jurisdiction the summons need not No indorse-
be indorsed by a justice of such other jurisdiction. nie^it re-

Under 24 & 25 Vict. c. 91, s. 46, the commissioners are ^^^^®^-
to obtain a writ of habeas corpus to authorise the appearance Obtaining
of the defendant prisoner to be brought up on the summons ^^rlJ!^^

1 1 • !• 1*1 1 • CO / pit s

to answer the charge agamst him ; and without his appear- when de-
ance proceedings will be stayed. Previously, under 7 & 8 fendant in
Geo. 4, c. 53, s. 77, the hearing could not have been pro- ciis*ody.
ceeded with on the non-appearance of the defendant while
in custody.

Before proceeding Ux parte, the justices must be satisfied Proceed-
the summons has been brought to the defendants' notice : i^gs ex
R. V. Smith, L. R. 10 Q. B. 608 ; 23 W. R. 523. -P«*'^^-

The service of the summons may be proved (on oath) in
court by the person who served it, 11 & 12 Vict. c. 43, s. 13;
or by declaration before a justice, commissioner to admi-
nister oaths, or a clerk of the peace, or registrar of a county
court, 42 & 43 Vict. c. 49, s. 41 ; 44 & 45 Vict. c. 24, s. 4.

(a) This mode of service will apply to service of all other
notices.

238

EXCISE.

Proof of
the iufor-
matiou.

Proof of
informant
being an
excise
officer.

Witnesses.

See 39 &
40 Vict. c.
36, s. 259.

The hear-
ing.

Where
wrong
offence
alleged ;
no amend-
ment.

The avowment in the information that it had been
exhibited under the order of the commissioners will be
sufficient proof of that fact, 7 & 8 Geo. 4, c. 53, s. 71 ; or
the production of the letter of instruction to lay the in-
formation will be evidence thereof, ib. sec. 72 ; and see
39 & 40 Vict. c. 36, s. 262 ; and will be proof of the state-
ments therein contained generally until the contrary be
proved, 42 & 43 Vict. c. 49, s. 41 ; also 7 & 8 Geo. 4, c. 53,
s. 72 ; 39 & 40 Vict. c. 36, s. 262.

The fact of an officer of excise actually keeping an office
of inland revenue, will be evidence of his official position,
26 Geo. 3, c. 77, s. 12 ; 7 & 8 Geo. 4, c. 53, ss. 17, 71; and
see 39 & 40 Vict. c. 36, s. 261.

Officers of revenue, and others interested in the penalties,
may be witnesses: ib. sec. 75. The defendant is not rendered
a competent witness bv 14 & 15 Vict. c. 99, s. 2 : Attoi^ey-
General v. Riidlop, 10 Ex. 84; 23 L. J. Ex. 240.

The parties should be fully prepared with all their wit-
nesses at the hearing at petty sessions, and they should be
either examined or tendered as witnesses, as those only so
examined or tendered can be heard on an appeal to the
quarter sessions : jdos^, p. 239 (a).

An officer of the inland revenue may conduct the pro-
secution, 15 & 16 Vict. c. 61, s. 3 ; or a solicitor or council,
11 <fe 12 Vict. c. 43, s. 3. The officer need not be the one
laying the information ; and in case of an appeal, the officer
conducting the case may be the appellant : R. v. }Yoodrou\
15 M. & W. 404; 16 L. J. M. C. 1 ; 4 & 5 Will. 4, c. 51,
s. 23.

Where there is a joint information, the justices may hear
the charges separately, at their discretion. Each may be
liable to the whole penalty ; the convictions should be
separate : B. v. Cridland, 7 E. & B. 853 ; 27 L. J. M. C. 28 ;
R. V. Littlechild, R. v. Ueslop, L. R. 6 Q. B. 293 ; 40 L. J.
M. C. 137 ; 24 L. T. 233 ; see 39 & 40 Vict. c. 36, s. 222.

As to the taking the defendants' plea, and proceeding
thereon, see 11 & 12 Vict. c. 43, s. 14.

Where the information alleges one offence, but the evidence
shows it was another which was committed, although of a
similar class, the information cannot be supported, nor can
it be amended : Martin v. Pridgeon, 1 E. & E. 778 ; 28 L.

(«) A witness summoned and
not attending is liable to a
penalty of £50 : 7 & 8 Geo. 4, c.
53, 8. 74. On refusing to be

examined he may be committed
for 7 days : 11 & 12 Vict. c. 43,
s. 11.

EXCISE. 239

J. M. C. 179 ; 7 W. R. 412 ; R. v. Brichhall, 33 L. J. M. C.
156; lOL. T. 385.

The defendant may, however, waive the objection without
further objections : Turner v. the Postmmter-Generaly 5
B. & S. 756 ; 34 L. J. M. C. 10 ; 11 L. T. 369 ; 13 W. R.
89.

Allegations in the information not necessary for the offence Surplusage
may be treated as surplusage. !? mforma-

The Court will enquire only into the real merits of the \
information without any investigation as to the mode of ^ ^ j
seizure ; the form or manner of making the same, will be enquired
taken to have been as alleged in the information without into,
any evidence thereof: 7 & 8 Geo. 4, c. 53, s. 64.

The ordinary rules of evidence will, in most instances, The evi-
apply and be observed. The law, however, in favour of the ^^J^^^
Crown in revenue cases, shifts the burden of the proof of the ^^^
exemption in the first instance on the defendant ; as it will handi on
be for the defendant to show he has paid the necessary duty defendant.
on goods seized, and of which he is the proprietor or claimant.
See 7 & 8 Geo. 4, c. 53, s. 76. On a seizure of spirits, proof
that the spirits correspond with the permit is on the defend-
ant : 43 & 44 Vict. c. 24, s. 105 (9). As to the payment
of a dog licence, the age of the dog, see 30 & 31 Vict. c. 5,
s. 8 ; 41 & 42 Vict. c. 15, s. 19 ; or whether the licence was
obtained within the prescribed period, 32 & 33 Vict. c. 14,
s. 27 ; or as to the sale of beer, see 23 k 24 Vict. c. 113,
s. 36 ; 6 Geo. 4, c. 81, s. 26 ; or as to the quality of any
article of plate, see 30 & 31 Vict. c. 90, s. 5.

Neither allegation or proof of the negative exemption from
duty lies on the informant: 11 & 12 Vict. c. 43, s. 14;
42 k 43 Vict. c. 49, s. 39 (2).

Goods being seized in the possession of the master of a Seizure
vessel employed by the defendant is sufficient evidence of of goods,
the master's agency to make the defendant liable : Attorney-
General V. Tomsett, 2 C. M. & R. 170; 5 Tyr. 514. The
mere hiring the ship will not make the party liable, as held
in a case under 6 Geo. 4, c. 108, Attorney-General v. Kenni-
feck, 2 M. & W. 715.

A defendant by allowing a particular course to be pursued
in his factory as to the duties to be paid may be estopped
from disputing such mode : Attorney-General v. Femberton,
1 McClell. 634.

Importing goods of one denomination concealed in those
of another is an offence, 39 k 40 Vict. c. 36, s. 67 ; Biiden-
burg V. Roberts, 35 L. J. M. C. 235 ; L. R. 1 C. P. 575, decided

240

EXCISE.

Forfeiture
of ship
or boat.

under 22 <fe 23 Vict. c. 37, s. 6. And it would not be necessary
that such goods be liable to a customs' duty {ih.)

The magistrates are to inquire whether the ship or boat is
liable to forfeiture for having prohibited articles on board
and on account of which the ship may be condemned as
forfeited. In such a case he has jurisdiction to impose a
penalty on each person on board to the extent of £100 :
Weak V. Brown, 4 Hurl. & Colt. 705, decided under 18 & 19
Vict. c. 96, s. 28 ; see now 39 & 40 Vict. c. 36, s. 179.

The rule of public policy which prevents a witness being
asked questions which might disclose the informer, if he be
a third person, applies equally to questions whether or not
the witness himself was the informer: Attorney- General v.
Briant, 15 M. & W. 169; 15 L. J. Ex. 265; R. v. Akers,
6 Esp. 125 (n.) ; Home v. Bentind', 2 Brod. & B. 162 (p.).

A dismissal on the merits will be a bar to any subsequent
information in the same matter, and against the same person :
Forster v. Htdl, 20 L. T. 482 ; the justice's certificate will be
proof of the bar. 11 tk 12 Vict. c. 43, s. 14 ; and so also
will be the proof of the adjudication : R. v. Hutchins, 5 Q.
B. D. 353 ; 49 L. J. M. C. 64.

On a first offence the Court of petty sessions may reduce
the amount : 42 & 43 Vict. c. 49, s. 4. On a subsequent
offence (except where there is a provision that no mitigation
shall be made) a mitigation may be made to an amount not
less than one-fourth part of the fine : 7 & 8 Geo. 4, c. 53,
s. 78.

The exceptions are — 1st. Fines of double the value of the
duties neglected to be paid. 2nd. Fines recoverable on
arrest, followed by committal to prison in default of imme-
diate payment, except where a special mitigation is
given (a).

It is recited in 4 <fe 5 Will. 4, c. 51, s. 24, that great in-
convenience had been experienced by justices deciding on
alleged defects in information, and dismissing the same
without any examination of witnesses, whereby the remedy
or tendered of appeal had been lost ; it was enacted, that where the
for exami- justices, before whom any information shall be exhibited,
shall dismiss such information without examination of
witnesses, or shall refuse to examine any witness produced
on the hearing of any information, the several witnesses
refused to be examined shall be tendered to the said justices
for examination on the part of the^ informer or defendant,

No inquiry
allowed as
to the in-
former.

Conviction
a bar to
any subse-
quent in-
formation.

The fines.

Justices to
return
names of

witnesses
examined

nation to

quarter

sessions.

(rt) 4 & 5 Will. 4, c. 51, 8. 20.

EXCISE. 241

as the cnse may be ; and the said justice shall, on ascertain-
ing the witnesses so tendered for examination to be present,
cause their names to be taken down in writing, and shall
transmit the same with the information and judgment to the
(quarter sessions ; and the several witnesses so tendered for
examination, and ^vhose names shall be so transmitted, shall
on the hearing of the appeal be examined in the case,
although not examined before the commissioners or justices
on the original hearing and judgment.

Notwithstanding any special provisions to the contrary in Court of
the statutes relating to H,M. Inland Reven\ie and Customs, summary
the Summary Jurisdiction Acts will apply to all information, 3|^^^sdic-
complaints, and other proceedings before a court of summary gummarv
jurisdiction ; Summary Jurisdiction Act, 1879, s. 53. This Jurisdic-
section will not apply to the sections on appeal ; and the tion Act,
question of the appeal not being specifically referred to in ■^^'^•
the Summary Juris liction Act, 1879, the Excise Acts are
not interfered with in that respect, and the appeal clauses in
those Acts will still have to be followed.

The iippeal from a decision on an excise information to the The appeal
court of quarter sessions, whether made by the informant or to the
the officer appearing to conduct the prosecution (It. v. sessions.
Woodroiv, 15 M. & W. 404 ; 16 L. J. M. C. 122, supra; 4 & 5
Will. 4, c. 51, s. 23), or by the person against whom the
information is laid, and being aggrieved by the decision,
may be made under the provisions of 7 & 8 Geo. 4, c. 53,
s. 82.

By 7 & 8 Geo. 4, c. 53, s. 82, in case any officer who shall The appeal
exhibit any information, or any person against whom any *^ quai-t-er
information shall have been exhibited, or who shall appear ynder"^ &
and claim any goods, &c., alleged to be forfeited in any 8 Geo. 4
information exhibited before any justice. Arc, shall feel c. 53.
aggrieved by the judgment given thereon, the dissatisfied
party, upon giving such notice as is required by sec. 83, may
appeal therefrom to the justices in quarter sessions ; or by
4 & 5 Will. 4, c. 51, s. 23, if there be not twenty days
between the time of the judgment being given and the
general quarter sessions, then to the general quarter sessions
next after the expiration of the period of twenty days from
the giving of such judgment ; and the justices at such sessions,
upon being served with such notice, are authorised and
required to heai", adjudge, and finally determine such appeal.
And defects of form found on the information may be amended
by the court.

The notices required by sec. 83 are that the appellant Notice of

M appeal.

242

EXCISE.

J?y officer
although
not the
infoimant.

Ap2>ellant
on convic-
tion to de-

l>03it

]>enalty ;
or goods
seized to
he retained
by excise
until ap-
peal deter-
mined.

shall at and immediately (a) upon the giving of the judgment
appealed against, give notice in writing of such appeal to the
justices of the peace from whose judgment such appeal shall
be made, and also to the adverse party or parties on such
appeal ; and shall lodge such appeal with the clerk of the
peace. And no such appeal shall be heard unless the
appellant shall, within one week at least before such appeal
is to l>e finally adjudged and determined, give notice in
writing to the adverse party or parties on such appeal of the
time and place where such appeal is to be heard.

It has been held that a service of the notice of appeal, in
the presence of the justices or their clerks, is good service on
them ; R. v. Eaves, L. K 5 Ex. 75 ; 39 L. J. M. C. 70 ; 21
L. T. 829 ; otherwise the service must be personal, see
Curtis V. Buss, Ex paHe Curtis, 3 Q. B. D. 13 ; 47 L. J. M.
C. 35; 25 W. R. 210; or at the dwelling-house of the
justice; R. v. Yorkshire N. ^., 7 Q. B. 154; see also R. v.
Cheshire, 11 A. & E. 139 ; 7?. v. Bedfoi'dshire, ih. 134
(ante, pp. 73, 133).

The notice on the respondent must be served on him
personally, or at his place of abode ; 4 tfe 5 Vict. c. 20, s. 30.
When the defendant appeals he must serve the notice on the
officer who exhibited the information (b) ; a service on a
clerk of the Inland Revenue Office will not suffice ; R. v.
Eaves, L. R. 5 Ex. 75 ; 21 L. T. 829.

The notice of appeal may be given by the officer of the
inland revenue attending and conducting the proceedings on
the part of the prosecution, although he may not be the
officer named in the information and exhibiting the same.
4 & 5 Will. 4, c. 51, s. 23.

On appeal against a conviction, the appellant must within
three days next after the judgment, deposit with the com-
missioners of inland revenue, or the collector, or the super-
visor where the information was exhibited, the amount of
the penalty in which he had been convicted, or the amount
to which the same had been mitigated ; or where goods, ko,.,
had been seized, such goods, ifec, will remain with the

(^) Whether this has been
reasonably complied with is for
the sessions — there should be no
delay ; in fact, the parties should
at once be prepared to give
formal notice : see R. v. Berli-
shire, 4 Q. B. D. 469.

(J) The officer who conducts
the prosecution may be the ap-
pellant ; the Act does not say he
may be the respondent. The
notice should be sei"ved on the
person, therefore, who laid the
information.

EXCISE. 243

Excise until final judgment on the appeal. 7 & 8 Geo. 4, c.
53, s. 83.

Notice of the trial of ap})eal must be given seven clear Notice of
days before the appeal is to be heard, or it cannot be heard, trial.
4 Vict. c. 20, s. 30.

The appeal being made under the " past Act " the court of ^he hear-
sessions are authorised to hear, adjudge and finally deter- "^^ ^P^®^{
mine it. 7 & 8 Geo. 4. c. 53, s. 82 j or to adjourn the joumed
hearing, 4 & 5 Will. 4, c. 51, s. 22.

The court may also amend any defect in the form of the
information. 7 & 8 Geo. 4, c. 53, s. 82.

By 7 & 8 Geo. 4, c. 53, s. 84, upon every such appeal, Informa-

the court before which the appeal shall be brought, are au- ti^n

thorised and required to rehear upon oath, and to re-examine ^'^^^*^6^-

the same witness and witnesses, and to re-consider the same ^"^^ ^^^"^

evidence, and the merits of the case, whereon the original ^^ ^^^^^ g^_

judgment appealed against shall have been given ; "and they amined or

shall not examine any evidence, or any witness or witnesses, tendered

other than or different from the evidence, and the witness for exam i-

or witnesses which had been before examined before the ?^i°il^^'

^ ^ . o • ^ore the

justices at ttie trial and hearing of the information upon jvistices to

which the original judgment had been given ; and the justices be heard

at the sessions are authorised to reverse or confirm in the °° ^^^

whole, or in part, the judgment appealed against, or to give '^PP^^ •

such new or different judgment as they in their discretion

shall in that behalf think fit ; and in such new or different

judgment they shall have the same power of mitigation as is

before given by the Act to the justices of the peace in

judgments given by them." That is, the penalty may be

reduced by an amount not less than one-fourth part thereof

ib. sec. 78.

A special case may be stated for the opinion of the Court Special
of Exchequer, now the Q. B. D. 7 & 8 Geo. 4, c. 53, s. 84, case.
and such special case will be filed with the Queen's Remem-
brancer. (Reg. Gen. 128, on the Revenue side of the ex-
chequer, 22nd June, 1860), and a copy given to the other
party. The case will be set down for argument in the
Q. B, D.

7 & 8 Geo. 4, c. 53, s. 85, directs that on the judgment Enforce-

appealed against being affirmed, it will be enforced by the ?^^"* ^^

justices as if there had been no appeal: and should it be-J" « ^"^

J J ,1 T/v • 1 • T connrmed

reversed, and another or dmerent judgment given, such new on appeal.

decision will be enforced and executed by the justices in

Quarter Sessions, by whom such new judgment shall have

been given.

M

244* EXPLOSIVE SUBSTANCES.

Under sec. 87 {ib.) the court may order the sale of any
goods, ifcc. which had been seized; — and may order any
money deposited by the appellant to be applied towards the
satisfaction of the judgment ; see also sec. 86 {ih.).

EXPLOSIVE SUBSTANCES.

Explosives The Explosives Act, 1875, 38 Vict. c. 17, amends the law
Act, 1875. with respect to the manufacture of explosive substances and

consolidates the law in reference thereto.
Wliere Gunpowder is only to be manufactured at a lawfully exist-

guupowder j^g gunpowder factory, or one duly licensed ; and the manu-
]P r'" j""" facture of gunpowder at an unauthorised place will subject
the offender to a penalty not exceeding £100 a day, and the
forfeiture of all the material for the manufacture which may
be about the place ; sec. 4. There can be no proceedings
under this section for not providing lightning conductors
(23 k 24 Vict. c. 139, now repealed Act 1875, sch. 4) ;
Eli/itt V. Majendie, L. R. 7 Q. B. 429 ; 41 L. J. M. C. 147 ;
20 L. T. 504; 20 W. R. 721.
Where No gunpowder (except for private use or where in transit

kept. |)y j^ carrier) shall be kept otherwise than in a licensed

factory or one lawfully existing, or in a licensed or lawfully
existing magazine, or registered premises. And where gun-
powder is so kept iu an unauthorised place, the person guilty
will be liable to a forfeiture of all the powder, and to a
penalty of not exceeding two shillings for every pound of
powder so kept ; sec. 5.
Licences. New manufactories are required to be licensed (sec. 6), and

the keeping of gunpowder under this section applies only to
the manufacturer, and not the retail dealer purchasing from
the manuTacturer ; Wehley v. Woollei/, L. R. 7 Q. B. 61 ; 41
L. J. M. C. 38 ; 25 L. T. 629.

Section 9 makes regulations for the use of the factories
and majjjazines in aoeordance with the licence, for breach of
which regulations a penalty of, for the first offence, £50 may
be inflicted ; for the second or subsequent offence £100, and
an addition of £50 for every day during which the breach
may continue.

Section 10 enacts general rules to be observed in the gun-
powder factory, for breach of which a penalty not exceeding
£10 may be inflicted ; and in addition, on a second offence,
£10 for every day during which the breach may continue.

EXPLOSIVE SUBSTANCES. 245

Section 17 provides general rules to be observed in eveiy
^niupowder store, for breach of which a penalty not exceeding
XIO, and in addition, in case of a second offence, <£10 for
every day during which the breach continues, with forfeiture
of the gunpowder.

There will be no appeal on a conviction under this clause, No appeal,
nnless the penalty with forfeiture be over <£20 (see appeal unless

Section 22 provides general rules to be observed with .
respect to registered premises, regulating the amount of gun- p^.g^^j^^ggg *
powder which may be kept there, and the mode in which it
should be kept ; for the non-compliance with which the
material may be forfeited, and the occupier be liable to a
penalty of not exceeding two shillings for every pound of
gunpowder on the premises in which the offence was com-
mitted. An appeal under this section is subject to the
observation before made on sec. 27. And similarly there may
be an appeal under sec. 33 on a breach of the general rules
to be observed with regard to the packing of gunpowder for
conveyance, for which a penalty not exceeding £20 may be
inflicted, with forfeiture of the material.

As regards the Government supervision, sec, 55 gives the Govern-

inspectors especial powers to make such examination and ™ent

enquiry as may be deemed necessary to ascertain whether ^V^*^'
. ^ vision,

the Act is complied with, and eveiy occupier, his agents

and servants, shall furnish the means required for every such

examination and enquiry.

Any person failing to permit the inspector to make the
enquiries, or failing to comply with any requisition of such
inspector in pursuance with the section, or who in any
manner obstructs the inspector in the execution of his
duty, will be liable to a penalty not exceeding £100 for each
offence.

The failing to admit any inspector or authorised officer
demanding to enter building, carriage, boat, or ship, in
pursuance of sec. 73, when there is reasonable cause to
believe an offence under the Act is being therein committed,
or in any way obstructing the officer in the execution of such
duty, will be liable to a penalty of not exceeding £50, and
the explosives to be forfeited.

Under sec. 93, if any person feels aggrieved b}^ any order Appeal,
or conviction under the Act by which the sum adjudged to
be paid, including costs, and including the value of any
forfeiture, exceeds £20, the party so aggrieved may appeal
therefrom to the quarter sessions in manner provided with

246

FINES, RECOGNIZANCES, AND ESTREATS.

respect to an appeal to quarter sessions by section 110, 24 <fe
25 Vict. c. 96 (The Larceny Act). See also sec. 32 of the
Summary Jurisdiction Act, 1879 {infra), giving the option to
appeal under that Act.

The Court of Summary Jurisdiction mentioned in the Act
is to be composed of two or more justices ; sees. 94, 108.

The recog-
nizance.

Fines to be

certified
to the
clerk of
the peace.

FINES, RECOaiaZANCrES, AND ESTREATS.

The performance of certain conditions Tvhich may be
imposed by the law are secured by means of compelling the
party to enter into recognizances which may be with or with-
out security ; see R. v. The Mayor of Dover, 5 Tyr. 279 ; 1
Cr. (k M. 726. The estreat of the recognizances is the result of
the non-performance of the imposed conditions. The non-
performance of the obligation must be complete ; see R. v.
Ely JJ., To L. J. M. C. 1 ; 5 E. & B. 489 {a).

By 3 Geo. 4, c. 46, s. 2, it is enacted that all fines, issues,
amerciaments, forfeited recognizances, sum or sums of money
paid or to be paid in lieu or satisfaction of them or of any of
them, set, imposed, lost, or forfeited {b) before any justice or
justices of the peace (unless directed by Act of Parliament to
be otherwise levied, tkc.) are to he certified by them to the clerk
of the peace of the county or town cleric of the city, borough, or
place, in writing, containing the names and residences, trade,
profession, or calling of the parties, the amount forfeited by
each, and the cause of each forfeiture, signed by such justice
or justices on or before the ensuing general or quarter sessions
of the county, city, borough, or place respectively, and that
the clerk of the peace or town clerk is to copy \c) on a roll
such fines, (fee, togetJier ivvth all fines, dec, imposed or forfeited
at the court of general or quarter sessions, and within the time
fixed by such court, not exceeding twenty-one days after the
adjournment of the court, to send a copy of the roll with a ivrit
of distringas and capias, or fieH facias and capias, according

(«) In i?. V. EIij, Coleridge, J.,
states that the Statute -i Geo. 4,
c, 46, " contemplates two cases ;
one, where the recognizances are
forfeited before justices out of
sessions, who are to give informa-
tion of them to the clerk of the
peace ; the other, where the for-
feiture takes place at the quarter

sessions, of which the clerk of
the peace takes notice himself."

(J) See a. V. Yorkshire W. B.,
7 A. & E. 583 ; R. v. Ely, 5 E. &
B. 489.

(c) See R. y. Yorkshire {supra,
n. 1) ; mides v. Morris, 32 L.J.
M. C. 4.

FINES, RECOGNIZANCES, AND ESTREATS, 247

to the form and effect in the schedule (A.) to the act, to the
sh^r-i^ of the county, or slieriff, bailiff, or officer of the city,
borough, or place, having execution of process therein respec-
tively, which shall be the authority of the sheriff, <fec., for
proceeding to the immediate levying and recovering of such
Jitiesj dx., on the goods and chattels, or in default of goods,
<fec. , for taking the bodies of such persons ; such persons to
be lodged in g-aol until the next sessions to abide the judg-
ment of the coiut.

By 3 Geo. 4, c 46, s. 3, the clerk of the peace will make
oath in the form there prescribed that his roll of fines,
issues, amerciaments, recognizances, and forfeitures are truly
.set forth ; by sec. 8, the sheriff at the opening of the en-
suing sessions will make his return, and state on the back
of the roll what he has done in execution of process ; and
which return the clerk of the peace will transmit to the Lords
of the Treasury.

By 7 Geo, 4, g, 64, s. 31, it is enacted, that in every case Quarter
where any person bound by recognizance for his appearance, sessions to
or for whose appearance any other person shall be so bound examine
to prosecute or give evidence in any case of felony or mis- , "^^^^
demeanour, or to answer for any common assault, or to
articles of the peace, shall therein make default, the officer
of the court by whom the estreats are made out is to pre-
pare a list in writing, specifying the name of every person so
making default, and the nature of the ofi*ence in respect of
which every such person or his surety was so bound, with
the residence, trade, profession and calling of every such
person and surety, distinguishing principals from sureties on
the list, and stating the cause if known, why each such
person has not appeared, and whether by the non-appear-
ance the ends of justice have been defeated or delayed, and
is before any such recognizance shall be estreated to lay
such list, if at a court where a recorder or other corporate
officer is judge, before such recorder or other corporate
officer, if at a session of the peace, before the chairman or
two other justices of the peace who shall have attended such
court, tvho are respectively required to examine such list, and
to make such order touching the estreating or putting in process
of any such recognizance as sliall appear just ; and no officer
of the court shall estreat or put in process any such re-
cognizance without the written order of the recorder,
corporate officer, chairman or justice before whom the list
was laid.

Sec. 31 enforces protection from the grievance pointed

248

FINES, RECOGNIZANCES, AND ESTHEATS.

Issue of
writ, &c.

Discharge
under 3
Geo. 4.

Fines im-
posed by
Coroners to
be estreated
in like
manner as
fines at
quarter
sessions.

at by the preamble to the statute, and for which at that
time a remedy was requisite — the statute reciting, " that
indiscriminately estreating recognizances had created great
hardships."

Sec. 5 provides that where a person has given security
to the sheriff for his appearance at the next quarter sessions,
and to abide the decision of the court, and such person does
not appear, the court may forthwith issue a writ of dis-
tringas and capias, or Jieri facias and capias, against the
securities of the person so bound. 3 Geo. 4, c. 46.

And by sec. 6, the court of general or quarter sessions,
before whom any person so committed to gaol, or boimd to
appear (a), shall be brought, is to enquire into the circum-
stances of the case, and shall at its discretion be empowered
to order the discharge of the whole of the forfeited recogni-
zance or sum, &c., or any part thereof ; the order to be in the
form or to the effect of the schedule (C.) to the Act, and to be
signed by the clerk of the peace, and is to be a discharge
to the sheriff, (fee, on passing his accounts. Where the
party has been lodged by the sheriff, &c., in the common
gaol, the sessions may either remand him to the custody of
the sheriff, &c., or upon his being released from the whole
of SHch forfeited recognizance, order him to be discharged,
which order is to be a discharge to the sheriff, &c., on
passing his accounts. The court may award such costs,
charges and expenses to be paid by either party to the
other as to the court seems just and reasonable. See ^x
parte Fellow, M'Cleland, 111 ; R v. Hawkins, M'Clel. & Y.,
27, as stated, per Curiam, in Ji. v. West Biding JJ , ; In re
Dr. Thornton, 7 A. & E. 590. 3 Geo. 4, c. 46.

Fines imposed by a coroner of liberties, franchises, counties,
cities, and boroughs, not within 5 & 6 Will. 4, c. 76, as
jurors or witnesses making default in their appearance at
any inquest before him, are certified to the clerk of the
peace of the jurisdiction in which such defaulter shall
reside on or before the first day of the quarter sessions next
after the inquest ; and a copy of such certificate is to be
served upon the party so fined, by leaving the same at his
residence twenty-four hours at the least before the first day
of the sessions. Such fines are to be copied on the rolls of
the court ; and the same shall he estreated, levied, and applied

(«) This order to discharge the
recognizance will be confined to
cases where the party had been
bound over to appear at the ses-

sions, or had been committed to
gaol : Haynes v. Hayton, 7 B. &
C. 299.

FISH AND FISHERIES. 249

in like manner, and subject to tfie like powers, pix) visions,
and penalties in all respects, as if such fine or fines had
been part of the fines imposed at such quarter sessions.
7 & 8 Vict. c. 92, s. 18 : — And every recognizance, forfeited
at any inquest, holden before any coroner of any county,
ifec., shall be certified to the clerk of the peace of the county,
&c., where the person forfeiting such recognizance shall
reside, at the like time ; and a copy shall be served in a
similar manner, and the clerk of the peace shall likewise
act, as in the case of fines certified to him under sec. 17 of
7 & 8 Vict. c. 92 ; 22 & 23 Vict. c. 21, s. 40.

The only relief against the fine is by appeal to the quarter Appeal,
sessions under s. 5, 3 Geo. 4, c. 46, giving a " bare appeal."
B. v. Hmvkins, sup. ; see In re Blues, Baines' Act, ante,
pp. 119, 121 ; see post, Sum. Juris. Acts.

The sheriff is annually to make his return of all fines, &c.. Returns,
to the Lords of the Treasury ; and the clerk of the peace,
4 Geo. 4, c. 37, s. 4, is to make his return within twenty
days from the opening of the quarter sessions.

A motion to discharge a defendant from estreated recog- Discharge
nizances must be under notice to the solicitor to the trea- motion
Bury : Hx parte Stowell, 13 L. J. Ex. 328. A party denying
the existence of the recognizance on which he may have
been taken in execution, must traverse it in the Exchequer :
Re Tipton, 3 Dowl. P. C. 177. A constat from the estreat
office is also requisite : R. v. Holdin, 3 Tyr. 580.

The fines are payable to the treasurer of the borough ; Borough
see Attorney-General v. Moore, 47 L. J. M. C. 33, on App. fi'^*^^-
ib. 103; 5 & 6 Will. 4, c. 76, s. 126.

PISH AISTD FISHERIES.

Every subject has a right to fish (by common law) with Common
lawful nets. in a navigable tidal river, as well as in the sea : '^^^ I'ight
Warren v. MattJiews, 6 Mod. 273; Bagott v. Orr, 2 B. & P. ^'^y^.^j',^'/
472 ; Hale, De Jure Maris ; Hargraves, Law Tracts. There riveS?
is no such right where the river is made navigable by means
of locks : Mussett v. Burch, 35 L. T. 486 ; Hudson v. McCrae,
4 B. & S. 585 ; 33 L. J. M. C. 65 ; Hargraves v. Diddams,
L. R. 10 Q. B. 582; 44 L. J. M. C. 178. Hale considered
the right of the public in fishing was co-extensive with the
right of the Crown over the river for public purposes. But
where there is no regular flow and re-flow of the tide, but

M 3

250

FKESHWATER FISHERY ACT, 1878.

only an occasional damming back of the water, as at high and
spring tides, or on extraordinary tides, it " comes not as to
this purpose under the denomination littiis maris." "The tidal
river" means that part of the river which under ordinary cir-
cumstances is tidal and navigable as such ; it is not enough to
show that sometimes under unusual circumstances the river at
the place where a person may be fishing is affected by the
tide. In such case the jurisdiction of the justices could not
be ousted: Beece v. Miller, 8 Q. B. D. 626; 51 L. J. M. C. 64.

Fresh-
water fish
defined.

Close
season.

Taking

Freshwater Fishery Act, 1878 (a).
41 &42 Vict. c. 39.

The term, " freshwater fish," includes all kinds of fish
other than pollan, trout, or char, which live in fresh water,
and except those which migrate to the open sea : Act 1878,
s. 11, sub-s. 1.

The close season for fishing freshwater fish is between the
15th March and the 15th June : ib. sub-s. 2.

Catching or killing freshwater fish during the close season
fish in close renders the offender liable to a penalty not exceeding 40s ;
season. q^^ ^ second conviction <£5, with forfeiture of the fish caught
and the instruments used in the taking : ib. sub-s. 3.

But the section will not apply to an owner of a fishery
where trout, char, or grayling are preserved.

Or person angling with leave (6).

Or person taking the fish for a scientific purpose ; or for
use as bait.

A person selling freshwater fish during the close season
will be liable to a fine not exceeding 40s. (sub-s. 4).

On a second or any subsequent conviction under this (1 1th)
section the person convicted will be liable to a fine not
exceeding £5 (sub-s. 5).

After every conviction imder the 11th section there will
follow a forfeiture of the fish caught, bought, sold, exposed
for sale, or in possession for sale, at the discretion of the
justices, and forfeiture of the instruments in taking the
fish (sub-s. 6).

(«) Fishery districts are con-
stituted under Act 1865, s. 4, and
see Act 187.S, part IT. A brook
which is merely a tributary to a
tributary of a river was held not
to be a part of the district. Jler-

rioks V, Cadwallader, 51 L. J.
M. C. 20.

(J) Only the owner can give
leave : Swanwich v. Varney, 108
N. of C. Nov. 19, 1881.

SALMON FISHERY ACTS. 251

This Act is to be read as one witli " The Salmon Fisheries Appeal.
Acts, 1861 to 1876;" the appeal clause (p. 256) will there-
fore be applicable to any conviction under ** The Freshwater
Fisheries Act, 1878."

Salmon Fisliery Acts.

24 k 25 Vict c. 109 (Act 1861) ; 28 <k 29 Vict. c. 121 (Act
1865); 36 & 37 Vict. c. 71 (Act 1873).

The 24 *fe 25 Vict. c. 109, s. 39, repealed all the prior Acts Repeal of
respecting salmon fisheries from 13 Ed. 1, st. 1, c. 47, to the former
11 ik 12 Vict. c. 52. statutes.

As to the appointment of conservators or overseers for Conserva-
the preservation of the fish, see 24 & 25 Vict. c. 109, s. 33 *«^s-
(Act 1861) ; 28 & 29 Vict. c. 121 (The Salmon Fishery Act,
1865), ss. 4—17.

After the expiration of three months from the date of the Ai)pomt-
advertisement of the appointment of the conservators, no ^^"* ^"*i
objection can be made to the validity of any orders or pro- ®y^|J^°<^®
ceedings relating thereto : and the copy of a newspaper pointment.
containing such an advertisement will be evidence of the
appointment : 28 & 29 Vict. c. 121, s. 18.

The conservators have given to them special powers to Powers,
proceed against persons violating the Act, sec. 27 {ib.) And
to grant licences to fish : sees. 33, 34 [ib) (a).

Act 1861, s. 4, defines the word "salmon" to include Salmon
all migratory fish of the genus of salmon ; the section f^efined.
enumerates the many terms including the '' salmon genus."

" Young of salmon " will include all young of the salmon
species, whether known as fry, smolt, smelt, &c., or by any
other name, local or otherwise.

As to the including trout and char within the provisions of
the Acts in reference to salmon, see "The Freshwater
Fisheries Act," 1878, 41 & 42 Vict. c. 39, ss. 5—10.

As to the granting of licences to fish, see Act 1865, Licences,
ss. 33 — 38 ; and which licences may be forfeited on a second
conviction of an off'ence against the Salmon Fishery Acts,
Act 1865, s. 56 ; Act 1873, s. 18.

A licence to fish for salmon, also includes the taking
trout and char. The Fresh-water Fisheries Act, 1878, s. 7 ;
see Act, 1865, s. 64. As to sections 8 & 9, Act 1861, apply-

(a) Every subject has a com- as in the sea : Warren v. Mat-
mon right to fish with lawful thews, 6 Mod. R. 73 ; Bagott v.
nets in a navigable river as well Orr, 2 B. & P. 472,

252

FISH AND FISHERIES.

Offences
subject to
appeal.

Poisoning
rivers.

Fishing
with lights
Ac.

Using roe
as bait.

ing to trout. Unlawfully and wilfully taking fish in water
running through land adjoining a dwelling-house is a misde-
meanour (E. V. Hodges, M. & M. 34), and punishable under
the Larceny Act, 24 & 25 Vict. c. 96, s. 24 ; but this chapter
treats only of such cffences as are matters of appeal. It
may, however, be mentioned that " unlawfully " means with-
out any bond fide claim of legal right : Taylor v. Newman,
32 L. J. M. C. 186 ; 4 B. & S. 89. And an act intentionally
committed : Hudson v. McRae, 33 L. J. M. C. 65.

The causing or knowingly permitting to be put into any
waters containing salmon, or any tributaries thereof, any
liquid or solid matter to such an extent as to cause the
waters to poison or kill fish.

1st conviction, a penalty not exceeding .£5.

2nd conviction, not less than £10, and a further penalty of
not exceeding £2 a day during which the offence is continued.

3rd or subsequent convictions, a penalty not exceeding £20
a day for every day during which such offence is continued,
commencing from the date of the third conviction : Act 1861,
s. 5.

But no person is to be subject to this penalty where he is
exercising a legal right if he has used, within reasonable cost,
the best practicable means to render such liquid or solid
matter harmless. The section is not to prevent a person
from acquiring such a legal right, or exempt him from a
punishment for any nuisance (a).

A person using a light [otter, lath or jack, wire or snare
(Act 1873, s. 18)] for the purpose of catching salmon; or
using a spear, gaff, strokshall, snatch, or other like instru-
ment for catching [or killing (Act 1873, s. 18)] salmon; or
having a light or any of the foregoing instruments under
such circumstances as to satisfy the Court that he intended
at the time to catch salmon by means thereof, will incur a
penalty not exceeding £5, and forfeiture (6) of the instru-
ments found upon him in contravention of this section ; but
the section will not apply to a person using a gaff as an
auxiliary to angling with rod and line (c) : Act 1861, s. 8, ih.

A person using fish roe for the purpose of fishing ; or who

(ji) The stat. sec. 6 gives
power to have the question under
sec. 5 tried before a jury.

(J) This forfeiture is whether
fish are caught or not : Ii,xith€T
T. Harris, 1 Ex. D. 97 ; 45 L. J.
M. C. 103 ; 34 L. T. 826.

(<?) This section also applies to
the catching trout in a salmon
river in a fisheiy district : 28 &
29 Vict. c. 121, s. 64 ; see also as
to trout and char, 41 & 42 Vict,
c. 39, 8. 5.

SALMON FISHERY ACTS. 253

shall buy, sell, or expose for sale or have in his possession
any salmon roe, will incur for each offence a penalty not
exceeding £2, and forfeiture of all salmon roe found in his
possession. But the section will not apply to a person "who
has such roe in his possession for artificial propagation (a) :
Act 1861, s. 9, ib.

A person wilfully taking [kill, injure or attempt to take Taking
(Act 1873, sec. 18)], unclean or unseasonable salmon ; buying, unclean
selling or exposing for sale, or having in his possession afiy ^^^*
such salmon, or any part thereof, will incur the following
penalties : — 1. The forfeiture of the fish ; 2. A penalty not
exceeding £5 in respect of each fish, taken, sold or exposed
for sale, or in his possession (6).

But the section will not apply to a person accidentally
taking such fish and who forthwith returns it to the water
with the least possible injury ; — or to one who takes such
fish for artificial propagation, or other scientific purpose.
Act 1861, sec. 14.

No salmon shall be caught or be attempted to be caught Close time,
between September 1st and February 1st following, excepting
with rod and line between September 1st and November 1st
following, under a penalty of a forfeiture of the salmon
caught, and the incurring a penalty of not exceeding <£5 ; and
a further penalty of not exceeding £2 for each salmon so
caught. Act 1861, sec. 17, ib. And also the forfeiture of
any net or instrument being used. Act 1865, sec. 58 (c).

A person buying or selling or exposing for sale any salmon ^^^ 1865
between the 3rd September and 2nd February following, will sec. 58.
forfeit such fish and incur a penalty not exceeding £2 for Selling
each such fish. But this section will not apply to cured or salmon
pickled salmon, or any salmon caught beyond the limits of '^^"ng
the Act. Nevertheless, the burden of proof that such salmon ^ ^^® *^"^®*
had been caught beyond such limit will lie on the accused.
Act 1861, sec. 19, ib. See Whitebread v. JSmithers, 2 C. P. D.
653.

By Act 1865, sec. 56, any person convicted twice of an Penalties

offence under any of the preceding sections 8, 9, 14, 17, 19 under sec-

of the Salmon Fishery Act, 1861. shall on a third conviction *if"s 8, 9,

• •' 141719

under any of such sections, instead of being fined in a ^^^ j^ggj *

pecuniary penalty, be sentenced to imprisonment with hard

labour for any period not exceeding six months, [or less than

(fl) As to the prior necessary preceding note,

consent of the Conservators, see (J) See also Act 1863, s. 3.

28 k 29 Vict. c. 121, s. 60. See (<?) See as to Bye Laws Act,

also the reference in the next 1873, s. 39.

254.

FISH AND FISHERIES.

Taking the
young of
salmon.

User of
nets.

User of

fixed

engines.

one month, Act 1873, s. 18,] and if a licensee, he shall, on
being convicted a second time of an offence against the
Salmon Fishery Acts, 1861, 1865, forfeit his licence.

The Salmon Act, 1873, s. 18, amends the 75th sec. by
striking out "1861 & 1865," which are to be read as if —
" 1861 to 1873, and under any bye-law made under the
authority of this Act " — were inserted in lieu thereof. But
it will not be imperative for the justices to inflict a penalty
greater than fifty shillings for a second offence, or more than
£5 for a third offence under the Salmon Fishery Acts from
1861 to 1873 ; see further as to the general minimum penalties
on a second offence, — post, p. 257, Act 1865, sec. 57.

A person wilfully taking or destroying young salmon ;
buying, selling or exposing for sale, or having in his posses-
sion the young of salmon ; placing any device for the
purpose of obstructing the passage of the young salmon ;
wilfully injuring the young salmon ; wilfully disturbing any
spawning bed, or any bank or shallow on which the spawn of
salmon may be, will incur the following penalties ; 1. Forfei-
ture of the salmon found in his possession ; 2. Also of rods,
lines, (kc, used in committing the offence {a) ; 3. for each
offence he shall pay a penalty of not exceeding £5. But this
section will not apply to a person taking young salmon for
artificial propagation ; or prejudice an owner in his right to
take materials from the stream. Act 1861, sec. 15, ib.

No person shall use a net for taking salmon having a
mesh of a less dimension than two inches from knot to knot,
or eight inches measured round each mesh when wet ;
penalty, a forfeiture of the nets, and a penalty not ex-
ceednig £5. See TJwmas v. Evans, 27 L. J. M. C. 172.

The placing of two or more nets behind or near to each
other so as practically to diminish the mesh, or the using of
any other artifice so as to evade this section will be deemed
a contravention of the Act. Act 1861, sec. 10.

The ow^ner of a fixed engine (see Act 1861, s. 11,) of any
description, or net secured by anchors placed for the
catching salmon (or for the purpose of facilitating the
catching of salmon, or detaining or obstructing the free
passage of salmon, Act 1873, s. 18,) in any inland or tidal (6)
waters will be liable to a penalty of not exceeding £10 for
each day such engine is so fixed ; Thomsmi v. Jones, 34 L. J.
M, C. 45 ; but this section will not affect any right of fishery

(a) See Rutlier

V. Harris (h) See JReece v. Miller, 51 L.

J. M. C. 64.

SALMON FISHERY ACTS. 255

lawfully exercised at the time of the passing the Act or under
any grant or charter or immemorial usage ; or apply to fishing
weirs or fishing mill dams. Sec. 11, ib. See Olding v. Wildy
U L. T. 402, Q. B. Moulton v. Wilhy, 32 L. J. M. C. 164 {a).
See further as to the meaning of " fixed engine," 28 & 29 Vict.
c. 121, s. 39, amending the provisions whereby the offence
may be committed.

"Stop nets" have been held to be within the mischief *' Stop
provided for by 2 Hen. 6, c. 15, and so within the 11th »©*«•"
section above quoted. Holford v. George, 6 B. & S. 815 ;
see also Gore v. The Special Commissioners for English
Fisheries, L. R. 6 Q. B. 561 ; 40 L. J. Q. B. 252; 24 L. T.
702. But it seems that using a net, which is not bond fide
of itself an instrument peculiarly adapted for the taking of
salmon, and which is not fixed for such purpose is not within
the Act. Watts v. Lucas, L. R. 6 Q. B. 226 ; 40 L. J. M. C.
73 ; 24 L. T. 128 ; see Lyne v. Leonard, L. R. 3 Q. B. 156 ;
18 L. T. 55 ; 16 W. R. 562 ; (6) Tlwmas v. Jones, 34 L. J. 45.

No dam, except such fishing weirs or fishing mill-dams as Using
were lawfully in use at the time of the passing the Act dams.
(1861) by virtue of a grant, royal charter, or by immemorial
usage (c), shall be used for the catching or attempting to
catch salmon, under a penalty not exceeding £b for each
offence, £1 for each fish caught, and forfeiture of all the fish
caught, and the nets, &c. used. Act 1861, sec. 12, see
Moidton V. Wilby, 2 H. & C. 25 ; 32 L. J. M. C. 164.

Each fishing weir {d) must have a free gap for the fish ; a Gap to
mill dam a free pass; and each with a sufficient flow of^eif'
water to enable salmon to pass {ib.). The passage must be
perfectly free. Hodgson v. Little, 33 L. J. M. C. 229 {post).

The fishing in the head or tail race of any mill, or within Fishing in
fifty yards below any dam without a fish pass with a flow of head or
water through it, will incur a penalty of £2 for each offence, ***^^ ^^^'
and a further penalty of £1 for each salmon caught, and the
nets, &c. used, ib.

The failing to place gratings to prevent salmon passing into Gratings to

artificial water channel ; penalty not exceeding £5 for every artificial

streams,

(a) Also cases, n. (&), p. 254; v. Blackmail, 32 L. J. Ex. 174.

(h) A person using any instru- (c) Applicable only to navi-

ment or device for the catching gable rivers : see RoUe v. Whyte,

salmon requires a licence : Lyne L. R. 3 Q. B. 286 ; Lord Lecon-

Y. Lecmard {stfj).), 37 L. J. M. C. Jwld v. JSarl of Lonsdale, L. R 5

55. C. P. 657 ; 39 L. J. C. P. 305.

The right to destroy any fixed (^d) See Act 1873, s. 4 ; BolU

nets is not confined to the Con- v. Whyte, L. R. 3 Q. B. 286.
servators or overseer : Williams

256

FISH AND FISHERIES.

No fixed
engines in
close time.

Fishing in
weekly
close time.

Free paa-
sage to be
kept in
weekly
close time.

Injuring
fish passes.

Fish passes
to future
dams.

Supply of
water to
passes.

Altering
weirs with-
out making
passes.

Injuring
passes.

Free gaps
in weirs
and dams.

Spur walls
in fishing
dams.

day after six months during a failure to comply with the
section ] and a penalty of £1 a day during which there may
be a failure to maintain such gratings. Act 1861, s. 13.

Fixed engines are to be removed during close time, under
a penalty not exceeding £10 a day whilst they remain unre-
moved, and a forfeiture of the engines. Act 1861, sec. 20 ; a
fishing mill-dam is within the meaning of this section.
Hodgson V. Little, 14 C. B. N. S. Ill j 32 L. J. M. C. 220.

The fishing with by other means than rod or line any
salmon between 12 at noon on Saturday, and 6 a.m. on
Monday, is forbidden, under a penalty of a forfeiture of the
fish caught, any net, «frc., and a fine of not exceeding £1 for
each fish caught. Act 1861, s. 21, ib. See Ruther v. Harris ,
ante, p. 251, n, (6).

During the weekly close time mentioned in sec. 21, a free
passage is to be left through cribs or traps, under a penalty
for each offence of not exceeding <£5, and a further penalty
of £1 for each fish caught, and a forfeiture of all fish caught.
Actl861,s.22; Actl873,s.4. SeePi^ev. i?omVer, 37L.T.635.

Any one obstructing the erecting a lawful fish pass will
incur a penalty of <£10 for each offence ; or for wilfully
injuring the same will be liable to a penalty not exceeding
£5, and the cost of any repair. Act 1861, s. 23.

All future constructed dams are to be provided with fish
passes of approved form; penalty £5. Act 1861, s. 25. And
sec. 26 provides for the flow of water, the drawing off of
which renders the party liable to a penalty of five shillings
for every hour during default.

Persons rebuilding or altering w^eirs or making new ones
without proper passes, are liable to a penalty not exceeding
£'20 for every such offence ; and a further penalty of £2 for
every day the offence may continue. The Salmon Act, 1873,
s. 46.

The injuring a fish pass or rendering it less efficient,
penalty £5 ; and a further penalty of £1 a day during con-
tinuance of the obstruction, &c., and the cost of the restor-
ing the fish pass. Act 1873, s. 48.

As to the rules for enforcing free gaps in the fishing weirs
under penalties, see Act 1861, s. 28 ; as to mill-dams, s. 29.

No spur walls in fishing weirs, or mill-dam, or outrigger of
more than twenty feet from the upper or lower side of any
box or crib in such weir or dam : penalty on the owner not
exceeding £1 a day for every day during the continuance
thereof. Act 1861, s. 30, ih. On a second offence a forfeiture
of licence, Act 1865, s. 56.

SALMON FISHERY ACTS. 257

A person refusing a water bailiff access to a weir, dam, or Obstruct-
fixed engine, or artificial watercourse ; or any boat or other ing any
vessel used in fishing, or which there is cause to suspect 7^^yL
contains salmon, or prohibited articles under The Salmon
Fishery Acts, 1861 to 1873 (see Act 1861, s. 8, et seq. ; Act
1865, ss. 58 and 64 ; Act 1873, ss. 17, 19) ; or obstructs the
])ailiff in such search ; or refusing to .allow any nets, &c., to
be examined, or obstructing the water bailiff in such search,
in each such case such person will be liable to a penalty not
exceeding £5. Act 1873, s. 36 (a).

A person fishing in a fishery district with rod and line Fishing
without a licence after an appointed time by the conserva- ^itlio"*
tors, is subject to a penalty of double the amount to be paid
for a licence, and not exceeding £5. Act 1865, s. 35.

And after such time any person in such district using any
fishing weir, mill-dam, putt, putcher, net, or other instru-
ment or device, not being a rod or line, for the catching
salmon, without a licence for the same, will be liable to a
penalty of double the amount of the licence, and not exceed-
ing £20 : sec. 36, ib. See Lewis v. Arthur, 24 L. T. 6Q ;
Lyne v. Leonard or Fennell, 37 L. J. M. C. 65 ; L. R. 3
Q. B. 156; 9 B. & S. 65 ; Watts v. Lucas, L. R. 6 Q. B.
226.

A licensee found fishing and not producing his licence on Refusing
request by a conservator, water bailiff, or constable, or not to shovr
making a reasonable excuse for its non-production, will be "^®°<^®'
subject to a penalty of £1, and on a second conviction a for-
feiture of his hcence. Act 1865, ss. 37, 56.

A person obstructing an officer desirous of posting a notice Obstruct-
in a fishing weir, mill-dam, or fixed engine ; a penalty not ing officer
exceeding £5 ; on a second conviction, if a licensee, a forfeiture ^^^^^ Pp^^'
of the licence. Act 1865, ss. 43, 56. '°^ "°*''^''

Defacing, destroying, or removing such notice, penalty Destroying
40s. ; and on second offence, if a licensee, a forfeiture of the notices,
licence. 76. et ib.

Sec. 65, Act 1865, provides for the exportation of salmon Export»-
under penalties. See also Act 1863, s. 3. tion of

No justice will be disqualified from hearing any case under ^a-l^o".
the Salmon Fishery Acts, 1861, 1865, by reason of his being Justice's
a conservator, or member of a board of conservators, or a J^^^i^^^*^'
subscriber to any society for the protection of salmon or
trout, if the offence be not committed on his own land : sec.

(fl) Water bailiffs are deemed 36, Act 1873 ; see also Act 1865,
to be constables : sub-sec. 4, sec. s, 27.

258

FISH AND FISHERIES.

Appeal.

Minimum
penalties.

Limitation
of proceed-

ings.

Dynamite
prohibited.

Bje-laws.

61, Act 1865. This section avoids the effect of ^. v. AUettj
33 L. J. M. C. 98.

Any person feeling aggrieved by any determination or
adjudication of the justices with respect to any penalty or
forfeiture under the Salmon Fishery Acts, 1861, 1865, he
may appeal to the court of general or quarter sessions for
the county or place in which the cause of appeal has arisen,
holden not less than fifteen daj'S and not more than four
months after the decision from which the appeal is made ;
provided that the appellant within three daj^s after the cause
of appeal has arisen, give notice in writing to the other party
to the proceedings of his intention to appeal, and of the
gi'ounds thereof : and also provided that the appellant shall,
within three days after the cause of appeal has arisen, enter
into his recognizance before a justice of the peace, with two
sufficient sureties, conditioned personally to try such appeal
and abide the judgment of the court thereon, and to pay
such costs as might be awarded by the court. And the
court has power to adjourn the appeal, and on the hearing to
confirm, reverse, or modify the decision of the justices, with
or without costs to be paid by either party. Sec. 66, Act
186.5.

See the Summary Jurisdiction Act, 1879, s. 32, under
which he has his election to appeal under sec. 6Q (supra) or
31 of the Act 1879. In re Cleios, 8 Q. B. D. 511 ; H. v.
Montgo^neryshii-e, 51 L. J. M. C.

The penalty on a second conviction under the Salmon
Fishery Acts, 1861 to 1873, shall not be less than one-half
the greatest penalty capable of being imposed in respect of
such offence ; and on a conviction of a third, or any subse-
quent offence, the greatest amount of penalty mentioned in
the said Acts shall be imposed. But nothing shall affect the
discretion of the justices to impose hard labour as provided
in the Salmon Fishery Act, 1865, s. 57.

All proceedings under these Acts are limited to be taken
within six months of the committing an offence. 36 & 37
Vict. c. 71, s. 62 (Act 1873).

As to the prohibition of the use of dynamite in a public
fishery, see " Fisheries Dynamite Act, 1877," 40 & 41 Vict,
c. 65. See also " The Fresh Water Fishery Act, 1878," 41 &
42 Vict. c. 39, s. 12.

For bye-laws as to trout, see 39 & 40 Vict. c. 19 (Act
1876).

SEA FISHERIES ACT, 1868. 259

Sea Fisheries Act, 1868.
31 & 32 Vict. c. 45.

This Act was passed to carry out a convention between Object of
the Governments of England and France concerning fisheries *^® '^<^^-
in the seas adjoining the British and French coasts, and to
amend the laws relating to British sea fisheries.

The convention is set out in the 1st schedule of the Act,
sec. 6, and orders in Council may be made for maintaining
good order among sea fishing boats and the persons beloug-
ing thereto, and to impose penalties not exceeding £10 for
breach thereof, sec. 7.

Sea fishery officers are to be appointed under sec. 8.

The term " sea fish '* includes all and every description
both of fish and shell-fish found in the seas, except salmon,
sec. 5.

Every person who shall commit an offence against the
fishery regulations of the Act within the exclusive limits of
the British Islands, and every person belonging to a British
sea fishing boat who shall commit an offence against those
regulations outside those limits, will be liable to a penalty of
not less than eight shillings, and not more than £50 ; or, in
the discretion of the court, to imprisonment of not less than
two days, and not more than three months with or without
hard labour, sec. 14.

If the offence be one by which some injury has been
caused, by assaulting anyone belonging to another sea fishing
boat, or by causing damage to another sea fishing boat, or
property on board thereof or belonging thereto (sec. 13) the
court may order the ofi'ender, in addition to any penalty, to
pay a reasonable sum as compensation to the person injured,
and which may be recovered in the same way as a penalty
under the Act, sec. 14.

Any person belonging to a French sea fishing boat enter- Entry into
ing within the British fishing limits in contravention of the the exclu-
articles 32, 33, 35 in the 1st schedule to the Act, the person ^i'^e fishing
in charge of the boat will be liable for the first offence to a ^^*"^*^-
penalty not exceeding £10 ; and for a second offence to a
penalty not exceeding £20 ; and in default of payment the
court may order the defendant to be detained in some port
in the British Islands for a period not exceeding three
months from the date of the sentence inflicting the penalty,
see. 16,

260 FISH AND FISHERIES.

The neglect to exhibit lights on board a sea fishing boat
in accordance with articles 13 & 14 in the 1st schedule will
be " an offence " under the Act, sec. 20.

The owner and master of a sea fishing boat not entered

and registered in accordance with the Act, will each be liable

to a penalty not exceeding £20, and the boat may be seized

and detained by the sea fishery officer, sec. 22.

Register of The register of the sea fishino; boat will be evidence of

vecisei eyi- ownership thereof, sec. 24. And the master of every sea

(161106 01 •

ownei-ship A'^hii^^g boat is bound to have on board his boat the certificate
of the register or official paper evidencing his nationality ;
the master acting in contravention of this section, unless
there is some reasonable cause for his not having such certi-
ficate or official paper (the onus of proof being on him) will
be liable, together with his boat and crew, to be taken by any
sea fishery officer without warrant, summons, or process into
the nearest port, and there in a summary manner be ordered
to pay a penalty not exceeding X20 ; and if such penalty is
not paid, and the boat is not British, the boat may be
detained in port for a period not exceeding three months
from the date of the sentence, sec. 26.

Sea Fuheries. — Oysters and Mussels.
Oyster and (^) Under "The Oyster and Mussel Fisheries Act, 1866,"

Fisheries ^^ ^ ^^ ^^^^*- ^' ^^' *'^® portion of the sea shore to which an
Act 1866. order of the Board of Trade under that Act might relate (as

fir as it is not by law within the county) will, for all purposes
Jurisdic- of jurisdiction, be deemed to be within the body of the
tiou. adjoining county, or within each adjoining county where

there are more than one ; sec. 20. As to the making the

order see sec. 3, et seq.

As to the ownership of the oysters and mussels within the

limits of the fishery, see sees. 15, 16, 17.

It will not be lawful for any person except the owner —

1. To use any implement of fishing, excepting aline, hook,
or net adapted to take floating fish, and so used as not to
disturb or injure in any manner any 03'ster or mussel bed or
fishery.

2. To dredge for any ballast, <fec. (except under authority
to improve the navigation).

(a) As to the oyster fishery in Act, 1868 ; but was re-enacted

the River Medway, see 2 G. 2, c. by 31 & 32 Vict. c. 53, the Med-

19. This Act was by inadvertence way Regulation Continuance

repealed by the Sea Fisheries Act, 1868.

SEA FISHING OYSTERS AND MUSSELS. 261

3 To deposit any ballast, etc.

4. To place any instrument, ikc, prejudicial or likely to
be prejudicial to such bed or fishery (except for a lawful
purpose of navigation or anchorage).

5. To disturb or injure in any manner (except as afore-
said) any oyster or mussel bed, or fishery, or oysters or
mussels ; any person acting in contravention of this section
will be liable to the following penalties : —

For a first offence, not exceeding £2.

For a second offence, not exceeding £5.

For a third and every subsequent offence, not exceeding

no.

And be liable to make full compensation to the grantees
for all damage sustained by reason of the unlawful act.
which compensation may be recovered in a Court of com-
petent jurisdiction (but not in a summary manner) whether
a prosecution has taken place under this section or not :
31 & 32 Vict. c. 45, s 53 ; The Sea Fisheries Act, 1868.

Any person dredging for oysters or mussels in contraven-
tion of the restrictions imposed by the Board of Trade under
sec. 41 of the Sea Fisheries Act, 1868, will be subject to a
penalty not exceeding .£20, with the forfeiture of all oysters
and mussels caught : sec. 41, Act 1868.

Persons obtaining an Order of the Board of Trade are
bound to keep the same for sale, at some convenient place
near to the place to which the Order relates, *' at a price not
exceeding sixpence for a copy of this part (the third) of this
Act, and of the Order, and of the Act confirming it together."
Any person failing to comply with this provision will for
every such offence be liable to a penalty not exceeding £5 ;
and a further penalty not exceeding £1 for every day during
which such failure may continue after the first penalty has
been incurred : sec. 49, Act 1868.

The penalties in England may be recovered before any
justice; sec. 57, Act 1868.

If any person .feels aggrieved by any conviction under this Appeal.
Act, or by any determination or adjudication of the Court
with respect to any compensation under this Act, where the
sum adjudged to be paid exceeds £5, or the period of im-
prisonment adjudged exceeds one month, he may appeal
therefrom in manner following, that is to say : —

In England, in manner directed by law, subject in the
City of London and the Metropolitan District to the enact-

262 FRIENDLY SOCIETIES.

ments in that behalf made and subject elsewhere to the
conditions and regulations following.

1. The appeal shall be made to some court of general quarter
sessions for the county or place in which the Court whose
decision is complained of has jurisdiction holden not less
than fifteen days and not more than four months after the
decision of the Court, from which the appeal is made.

2. Tlie appellant shall within three days after the said
decision give notice in writing to the other party of his
intention to appeal and the ground of such appeal.

3. Immediately after such notice the appellant shall, before
a justice of the peace, enter into recognizances with two
sufficient sureties, conditioned personally to try such appeal,
and to abide the judgment of the court thereon, and to pay
such costs as may be awarded by the court.

4. The court may adjourn the appeal, and upon the hear-
ing thereof may reverse, confirm, or modify the decision of
the justice or justices with or without costs to be paid by
either party.

See also the Summary Jurisdiction Act, 1879, sec. 32
(infra), under which the appellant will have the option to
appeal under that Act or the clauses above set out : In 7'e
Clews, 8 Q. B. D. 511; see also 7?. \. Motitgomeryshirej 51
L. J. M. C.

FRIENDLY SOCIETIES.

The Friendly Societies Act, 1875, 38 & 39 Vict. c. 60,
consolidated the law relating to Friendly Societies, and the

Societies following societies are by sec. 8 included in the Act, and

within the require registration thereunder.

^^' (1) Friendly Societies established for the relief and main-

tenance of its members and relations during sickness, &c.

(a) For insuring money on the birth of a member's
child or death of a member, or for funeral ex-
penses, (fee. ; or in case of persons of the Jewish
persuasion for the payment of a sum of money
during the period of confined mourning. ^

(6) For the relief of the member's family when he is
on travel in search for employment, or when in dis-
tressed circumstances, or in case of shipwreck or
loss or damage to boats or nets.

(c) For the endowment of members or nominees.

FRIENDLY SOCIETIES 203

(c/) For insurance against fire not exceeding £15 of
tools or implements of trade of a member.

(Provided, no society to exceed assuring an annuity
beyond £15, or a gross sum of £500 will be registered.)

(2) Cattle Insiirance Societies.

(3) Benevolent Societies.

(4) Working Men's Clubs.

(5) Specially authorised societies by the Treasury.

See as to Trade Unions, 39 & 40 Vict. c. 22, ss. 2, 3, 16 ;
and see sec. 28 of 38 & 39 Vict. See also The Industrial
Schools and Provident Societies' Act, 1876, 39 & 40 Vict,
c. 45 {infra).

By 14th sec. sub-sec. 3, it will be an oiFence if any regis- Offences,
tered society, —

{a) Fails to give notice, send any return or document, or
do or allow to be done any act or thing which the society
is by this Act required to give, send, do, or allow to be
done ;

(6) Wilfully neglects, or refuses to do, any act, or to
furnish any information required for the purposes of the Act
by the chief or any other registrar, or other person autho-
rised under this Act, or does any act or thing forbidden by
this Act ;

(c) Makes a return or wilfully furnishes information in
any respect false or insufficient.

For the above offences the penalty will be not less than
£1, nor exceeding £5.

Sub-sec. 4 : — Every offence by the society will be deemed
to have been committed by every officer thereof bound by
the rules to fulfil any duty whereof such offence is a breach ; >'
if no such officer, then every member of the committee of
management ; unless such member be proved to be ignorant
of or to have attempted to prevent the commission of such
offence ; and every default under this Act constituting an
offence, if continued, constitutes a new offence in every week
during which the same continues.

If any person wilfully makes, orders or allows to be made,
any entry, erasure in, or omission from, any balance-sheet of
a registered society, or any contribution or collecting book,
or any return or document required to be sent, produced, or
delivered for the purposes of the Act, with intent to falsify
the same or to evade any of the provisions of the Act, he will
be liable to a penalty of not exceeding £50, recoverable at

264 FRIENDLY SOCIETIES.

the suit of the chief or any assistant registrar, or of any
person aggrieved : sec. 32, sub-sec. 1. And be recoverable,
undei' sub-sec. 3, in a court of summary jurisdiction.

If any person obtains possession by false representation or
imposition of any property of the society, or having the same
in his possession withholds or misapplies the same, or wilfully
applies any part thereof to purposes other than those ex-
pressed or directed in the rules of the society, and authorised
by the Act ; on complaint of the society, or members
authorised by the society, or the trustees or committee of
management of the same, or by the central office, or of the
chief registrar, or any assistant registrar by his authority ;
and on conviction — penalty not exceeding £'20 and costs —
to deliver up the property, or repay all monies improperly
applied ; in default, to be imprisoned with or without hard
labour not exceeding three mouths («) ; sec. IG, sub-sec. 9.

With respect to the payments on the death of children
under ten years of age, it will be an offence if a society
pay money on the death of a child under ten years other-
wise than provided by the Act. Sec. 28, sub-sec. 6.

Or if a parent or personal representative of a parent
claiming money on the death of a child produces any
certificate of such death other than is provided by the Act to
the society from which the money is claimed, or produces a
false certificate, or one fraudulently obtained, or in any way
attempts to defeat the provisions of the Act with respect
to payments upon the death of children ; ib.

By sub-s. 7 the word "society" (in sec. 28) will include
all industrial assurance companies assuring the paj-ment of
money on the death of children under the age of ten years.

As regards Friendly Societies whether registered or not, (b)
and industrial assurance companies, as receive contributions
by means of collectors at a greater distance than ten miles
from the registered office or principal place of business of the
society or company (42 Vict. c. 9, s. 1, Amending Act,
1879), it is an ofience under the Act; 38 & 39 Vict. c. 60,
8. 30, sub-s. 12.

(a) If a collector of the society becomes a member of the
committee or holds any office in the same (except as super-
intendent collector, within the area to be from time to time
specified ; ib. sub-s. 4) ; or if any member of the committee
of management becomes a collector, or if any collector votes

(rt) Or the party may be pro- (*) As to Trade Unions, see 39

ceede ] against by indictment. Sc 40, Vict. c. 22.

FRIENDLY SOCIETIES. 265

at or takes any part in the proceedings of a general
meeting.

(6) Or if any person attempts to transfer a member or
person insured from one society to another without snch
written consent as mentioned in siib-s. 3 to this 30th section.

(c) Or if a society fails to give notice of such transfer as
required by the same sub-s. 3.

In each case where a society, officer or member of a society,
or other person is guilty of an offence under the Act for which
no penalty is expressly provided, he will be liable on conviction
to a penalty of not less than £1 and not more than £5, and
which may be recovered in a Court of Summary Jurisdiction :
sec. 32, sub-ss. 2, 3. This will apply to offences under sees.
28, 30.

By sec. 32, sub-s. 1 : If any person wilfully makes, orders,
or allows to be made any entry, erasure in, or omission from
any balance sheet of a registered society, or of any return or
document required to be sent, produced or delivered for the
purposes of the Act, with intent to falsify the same or evade
any of the provisions of the Act ; he will be liable to
a penalty not exceeding £50, also recoverable in a Court of
Summary Jurisdiction (sub-s. 3); see also s. 33.

In describing the offence no exception or qualification need
be specified or negatived : sec. 33, sub-s. 5.

Every document, copy or extract of a document with the Evidence,
seal or stamp of i he central office ; and every document
purporting to be signed by the chief or assistant registrar,
inspector, or public auditor or valuer under the Act will, in
the absence of any evidence to the contrary be received in
evidence without proof of the signature : sec. 39.

By sec. 33, sub-sec. 5, any party may appeal from any Appeal,
order or conviction made by a court of summary jurisdic-
tion on determining any complaint or information under
the Act, as follows : —

(a.) The appeal is to be made to some court of quarter
sessions for the county or place in which the cause of
appeal has arisen, holden not less than fifteen days, and
not more than four months after the decision appealed
from.

(6.) The appellant will within seven days after the cause
of appeal has arisen, give notice to the other party, and to
the Court of Summary Jurisdiction of his intention to appeal,
of the grounds thereof. See Curtis v. Buss ; S. C, Bx parte
Curtis, 3 Q. B. D. 13 ; 47 L J. M. 0. 35; 37 L. T. 533
(supra, pp. 73, 132). >^

266 GAMING.

(c.) He will enter into his recognizance immediately after
such notice in £10, with two sufficient sureties in £10,
conditioned to try the appeal, and abide the judgment, and
pay costs.

(d.) He may then be discharged if in custody.

(e.) The court may adjourn the appeal, and confirm,
reverse, or modify the decision, or remit the matter back,
with the opinion of the Court of Appeal thereon, or make
such order as the court thinks just.

(/.) If remitted, the Court of Summary Jurisdiction will
rehear the case, and decide in accordance with the opinion
of the Court of Appeal. See also and compare the Summary
Jurisdiction Act, 1879 {infra), sees. 31, 32.

This section omits the usual power to the court to order
cost to either party ; but the court has a general power of
costs, under 12 k 13 Vict. c. 45, s. 5 (with this exception,
the above section is similar to the appeal section in the
Trade Union Act, 1871, s. 20).

See the Summary Jurisdiction Act, 1879, sec. 32, post,
giving the party his election to appeal under that Act.

GAMLN-Q.
(aS'^'^ Betting Houses.)

First laws The earliest statute against gaming was the 1 2 Hen. 2,
against c. 6, by which servants, artificers, and victuallers were prc-
f'o u"^* 9 hibited from wearing sword or dagger, but should " have
bows and arrows, and use the same on Sundays and holi-
days ; and leave off all plays of tennis or football, and
other games, called coits, dice, casting of the stone, and
other such importune games."

The encouragement of archery was evidently considered
of the highest importance ; and statutes were passed, from
time to time, for the promotion of the general efficiency of
the people in archery ; and the playing of games was looked
upon as eminently detrimental to the use of the bow and
arrow, and the well-being of the realm.

Under these requirements of the times a ste.tute was

passed in the reign of Hen. 8 (1541-2), 33 Hen. 8, c. 91,

for the suppression of gaming, a portion of which is still in

force.

38 Hen. 8. The''Acte"is entitled, ''An Acte for Mayntenance of

GAMING. 2G7

Artylleric and debarringe of unlawful Games." The pre-
amble of the *' Acte " is in the quaint language of ancient
statutes, giving an interesting historical picture of the times
and the pernicious effect of gaming, which was then appli-
cable in particular " to the great hurte and lett of shotinge
and archerie;" and notwithstanding " div'se good and law-
fuU statute have been devised, enacted and made, many
siibtill and inventatyve and craftye psons, intendinge to
defraude the same statute, sithence the makiuge thereof
have founde and dayly fynde many and sondrie newe and
crafty games and playes — by reason whereof archerie y's sore
decayed and dayly y's like to be more mynishcd." Tive
"Acte complayninge shewes " that, "by meanes and occacon
of customable usage of tennys playe bowles cloyshe and
other unlaw full games, phibited by mayne good and bene-
ficiall estatute by authoritie of Parliament in that behalfe
pvided and made, great ympoverishment hath ensued, and
manye haynous murdors robberies and fellonyes were
comytted and done, and also the devyne service of God by
such mis doers on holye and festyvall dayes nor heard or
solempnized, to the highe displeasure of Almj^ghtie God; as
by the foresayde preamble [3 Hen. 8, c. 3], more playnely
maye appeare."

The statute of Hen. 8 {a) inflicts a penalty of forty shil-
lings a day on any person by himself, factor, deputy, or

(«') The section in the statute the Statutes, on wliich (until re-
here referred to is numbered 11 cently) all legislation has been
in the quarto ed. of the Statutes, based; the folio "edition, although
the ed. commonly in use by the a fine work, has not been brought
profession, with text writers, and into use. Now, the present re-
in the courts at Westminster; visors of the Statutes seem wholly
but it is sec. 8 in the new Ee- to ignore the existence of the
vised Statutes as founded on the quarto edition, and thereby no
folio ed. of the Statutes prepared little confusion is created in
and published under the Koyal ascertaining correctly the sections
Commissions of 1800 and 180G. to which reference may be made.
This is not the only instance of One prominent illustration may
the different numbering of the be given in regard to the Statute
sections in the two contemporane- of Frauds, 29 Car. 2, c. B. The
ous editions of the Statutes, the folio and the Revised editions of
folio and quarto ; and it seems the Statutes have sees. 13, 14, &
inexplicable that the difference 15 of the Statute of Charles of
here noticed should have hap- the quarto edition, as sees. 1-1 &
pened, and that there should have 15, — the three sees, in the one
been no proper concert between are as two in the other, — thereby
the editors. The quarto edition making the well-known .scr. 17,
has been the one in universal having reference to contracts, in
use; it has been the collection of the quarto edition, as sec. KJ iu

N 2

268 GAMING.

servant who for gain, lucre or living shall keep, hold, occnpy,
exercise or maintain, any common house, alley or place of
dicing, table or carding, or any other manner of game pro-
hibited by statute, or any unlawful new game now invented,
or hereafter to be invented, and suffering any such game to
be had, kept, executed, played or maintained within any such
house, garden, alley or other place, contrary to the form of
the statute ; and every person using or haunting such houses
and plays and there playing, will forfeit for every time so
doing six shil ings and eight pence.
A cock -pit Keeping a cockpit was held to be within this section:
witiun 33 Dalton, c. 46. The keeping a billiard-table has also been
said to be within it : R. v. Bradford, LofFt. 29. See now

9 & 10 Vict. 0. 109, s. 10, under which the justices grant
licences to use billiard-tables.

(iaiuiug in- The keeping a gaming-house is indictable at common law:

.lictul.le. ji y Rogier, 1 B. k C. 272 ; 2 D. & R. 431 ; R. v. Taylor,

3 B. k C. 502 ; see also 1 Hawk. c. 25, s. 6 ; R. v. Dickaon,

10 Mod. 336 ; R. v. Ma^on, Lead. C. C. 487.

Lotteries. Several statutes have been passed for the suppression of
lotteries, from 10 & 11 Will. 3, c. 17 (A. D. 1698). In 1722,
the Act 9 Geo. 1 c. 19, was passed whereby persons intru-
ding lotteries of foreign states, or under colour of their being
as foreign lotteries, are subject to a forfeiture of £200, one-
third part to Her Majesty, one-third to the informer, and

Appeal. one-third to the poor of the parish. And sec. 5 gives an
appeal to the party aggrieved by the judgment or deter-
mination of the justices to the next Quarter Sessions to be
held for the county, city or place where the judgment or
determination was made.

6 Geo. 2, c. 35 inflicts a penalty of £200 on persons .selling
or procuring chances in foreign lotteries ; and sec. 30 gives a
right of appeal to Quarter Sessions in tlie same words as in
the statue of 1722 [svpra).

Prohibition 12 Geo. 2, c. 28, made fiu-ther enactments against lotteries
of lotteries.

the folio edition; and sec. 18, Revision Act, 1881, repeals sec. 17

referring to recognizarw^^es, as sec. of the Statute of Frauds; but

17. Blackstone, Cruise, Black- this is not the familiar sec. 17 in

burn, Benjamin, Chitty, Addi- the quarto edition ; it is sec. 17

son, Cave, and all who have of the folio edition having refer-

written on contract of sale, or eiice to the recognizances, and

discuf-sed the Statute of Frauds, which is sec. 18 of the quarto

have familiarised the 1 7th sec. as edition. See Lely's Chitty's

being the section specially applic- Statutes, vol. 3, pp. 1227 — 8 ; and

able to the formal ion of the con- the Annual Continuation for

tract of sale. The Statute Law 1881, p. 4.

GAMING. 2t)!)

and gaming, inflicting a penalty of £200 on any person or
persons who shall keep any office- under the denomination of
a sale of houses, lands, advowsons, presentations to livings,
plate, jewels, ships, goods, or other things by way of lottery, ■
or by bets, tickets, numbers or figures, cards or dice, or
should make, print, advertise, or publish, or cause to be
made, printed, advertised or published any proposals or
schemes for advancing small sums of money by several
persons, amounting in the whole to large sums to be divided
among them by chances of the prizes of some public
lottery.

See, as to the application of this clause, OConnor v.
Bradslutw, 5 Ex. 882 ) 20 L. J. Ex. 26 ; and see also Fisher v.
Bridges, E. k B. 642; Sykes v. Beaden, 11 Ch. D. 170, per _
Jessel, M. R.

The owner and keeper of a common gaming-house, and Keeping a
those having the care and management thereof, and also the common
banker, croupier and other person acting in or conducting gammg-
the business of a common gaming-house, on conviction
thereof before two justices, besides any penalty to which he
may be liable under 33 Hen. 8, c. 9, shall be liable to forfeit not
more than £100, or be committed to the house of correction,
with or without hard labour for not more than six months.
On non-payment of the penalty the justice may issue his
distress warrant. A person convicted summarily for any
such offence will not be liable to indictment. 8 <fe 9 Vict. c.
109, s. 4.

The proof of the house being a common gaming-house will Proof of a
be, in default of other evidence, that the house or place common
is kept or used for playing therein at any unlawful game, S^'^'^i^S"
and that a bank is kept there by one or more of the players
exclusively of the others, or that the chances of any game
therein are not alike favourable to all the players, including
among the players the banker or other person by whom the
game is managed^ or against whom the other players stake,
play or bet : and every such house or place will be deemed
a common gaming-house such as is contrary to law and
forbidden to be kept by the Act of Hen. 8, and by all
other Acts containing any provision against unlawful games
or gaming-houses : sec. 2 ; see also sec. 8.

Proof of gaming for money is not necessary to support an
information for gaming : sec. 5.

By 42 Geo. 3, c. Ill, s. 2, it is declared that the person Keeping
keeping any house for gaming or lotteries not authorised by house for
Parliament shall forfeit £500, and the person offending be ganii^g or

270

GAS AND GAS MEASURES.

lotteries
not autho-
rised by
parliament,

Amend-
ment of
the law as
to games
under 8 k
9 Vict,
c. 109.

Cheating
at play.

Wagering

contracts

void.

Appeal.

treated as a rogrie and vagabond, and be punished accord-
ingly. And by sec. 3, where the parties are not proceeded
against for the penalties, they may be as rogues and vaga-
bonds, and other idle and disorderly persons.

As to the meaning of the word ^^ place,*' see 4 Geo. 4,
9. 60, s. 60 ; see also the cases quoted under tit. " Betting-
Houses" (infra).

As to the advertising foreign lotteries, see further 6 & 7
Will. 4, c. 66 ; 8 <fe 9 Vict. c. 74.

The 8 (fc 9 Vict. c. 109, was passed to amend the law^
concerning games and wagers, and repealed so much of
33 Hen. 8, c. 9, whereby any game of skill was declared an
unlawful game, and no restriction is now put upon horse-
racing.

Cheating at play may be punished as if the money had
been obtained by false pretences : sec. 17.

Section 18 declares all contracts relating to gaming or
wagering null and void.

Any person summarily convicted under this Act (8 tfe 9
Vict. c. 109, s. 20) may appeal to the next general or quarter
sessions to be holden for the county or place wherein the
cause of complaint shall have arisen, provided such person
at the time of the conviction, or within forty-eight hours
thereafter, shall enter into his recognizance, with two suffi-
cient securities conditioned personally to appear at the
sessions and try the appeal, to abide the judgment of the
Court, and pay the costs awarded. See Sum. Juris. Act,
1879, s. 32.

No conviction will be quashed for any informality. 8 & 9
Vict. c. 109, s. 20.

GAS AND GAS MEASURES.

The 22 <fe 23 Vict. c. 66 was passed that the sale of gas
should be regulated by one uniform standard, and that all
meters should be stamped. By 24 & 25 Vict. c. 79 the
powers of the justices under 22 & 23 Vict. c. 66 (23&24
Vict. c. 146) are transferred to the Metropolitan Board of
Works as regards the metropolis ; and the powers of the
Treasury are transferred to the Board of Trade by 29 & 30
Vict. c. 82.

GAS AND GAS MEASURES. 271

The following are offences (a) under the Act 22 & 23 Vict. Offences.
c. 66 :—

Stamping a meter without duty ; inspecting the same and By In-
finding it correct ; refusing for three days after being required «pectors.
(sec. 9), or neglecting, without lawful excuse, to test any
meter or to stamp any meter found to be correct on being
tested ; or who shall be guilty of any breach of duty imposed
upon him by the Act (6), or otherwise misconducting himself
in the execution of his office. Penalty not exceeding £o for
every such offence : see sec. 11 (c).

By other persons : —

Forging or counterfeiting, or causing or procuring to be
made, forged, or counterfeited, or knowingly acting or assist-
ing in the making, forging, or counterfeiting any stamp or
marks used for the stamping or marking of any meter under
the Act. Penalty not exceeding £50 nor less than £10 :
sec. 14.

And persons knowingly selling, uttering, or disposing of,
letting, lending, or exposing to sale any meter with a forged
stamp or mark thereon. Penalty not exceeding £10 or less
than 405., and the meter to be forfeited and destroyed : sec. 14.

Tampering (d) with a meter by repairing or altering it, or
knowingly causing it to be altered or repaired, or knowingly
tampering with or doing any other act in relation to any
stamped meter so as to cause it to register unjustly and
fraudulently. Penalty not exceeding £5, costs of a new
meter, and cost of removing and testing the meter : sec. 15.

Preventing or refusing to permit lawful access to any
meter (e). The like penalty : sec. 15,

Obstructing or hindering an examination or testing a meter.
The like penalty : sec. 15 (/).

Knowingly using an unstamped meter. Penalty not
exceeding £5, and the forfeiture and destruction of the
meter: sec. 17.

Fixing for use an unstamped meter, and not having a
measuring index. Penalty £o for every such unstamped
meter : sec. 1 8.

(^a) In all these cases the in- prisonment in default of pay-
formation must be laid within ment : see •42 k 43 Vict. c. 49, s.
six months, 11 «fc 12 Vict. c. 43, o, Sum. Juris. Act, 1879,
s. 11. (^) See also 34 Sc 35 Vict. c. 41,

(/y) See sections 9, 10, 12, 13, s. 38.

20. (<?) See sec. 20.

(<?) Recovery by distress : see (/") See also 34 & 35 Vict, c. 41,

11 k 12 Vict. c. 43, s. 19. Im- s. 21.

272 GAS AND GAS MEASURES.

Section 22 gives the right of appeal to any persons
thinking themselves aggrieved by any order, judgment, or
determination of any justice of the peace, mayor, or chief
magistrate relating to any matter or thing in this Act men-
tioned or contained, whomay appeal to the justices of the peace,
recorder, or other presiding officer at the then next practic-
able general or quarter sessions (a) to be held for the city,
borough, or county within which the alleged cause of appeal
shall arise, first giving seven days' notice of such intention to
appeal, and the grounds and nature thereof, to the party
against whom such complaint is intended to be made ; and
forthwith after such notice entering into a recognizance before
some justice of the peace, mayor, or other chief magistrate,
with two sufficient sureties, conditioned to try such appeal
and abide the order and award of the said court thereon ;
power is thus given to the court to hear and determine the
matter or to adjourn the same, and to reverse or alter such
decision and mitigate any penalty or forfeiture, and to order
any money to be returned which may have been levied in
pursuance of such order or determination, and also may
order such further satisfaction to be made to the party
injured as the court shall judge reasonable ; power is also
given to award costs. See also the Summary Jurisdiction
Act, 1879.

Offences Under 10 & 11 Vict. c. 15 (b) (The Gas Clauses Act, 1847)

under the are the following offences : —

(ias Clauses Fraudulently laying a pipe or causing a pipe to be laid
communicating with any pipe belonging to the undertakers
without their assent (c) ; or who shall fraudulently injure
any meter ; or w^here no meter is used, using a burner of
larger dimensions than that contracted for ; or keeping the
lights biu-ning a longer time than contracted for ; or who
shall improperly use or burn such gas (d) ; or who shall
supply other persons with such gas. Penalty £5, and also

(a) " Quarter sessions " mean commission of the peace : sec. 3

— quarter sessions as defined by of 10 & 11 Vict. c. 15.

the special Act ; and if such ex- (J) As to a fraudulent conceal-

pression be not there defined it ment, see 27ie Imperial Gaslight

shall mean the general or quarter Co. v. Tlie London Gaslight Co.,

sessions of the peace which shall 10 Ex. 39.

be held at the place m ear est the (<:•) Gas taken by this means

gas-wiirh^, or the principal o^ce would be a larceny : B. y.

thereof, for the county or place White, 22 L. J. M. C. 123 ; R.

in which the gas-works are v. Firth, L. R. 1 C. C. 172.

situate, or for some division of (r/) ^qq Fowler \. Neivhiggingy

such county having a separate 23 J. P. 52.

GAS AND GAS MEASURES. 273

4O5. for every day such pipe remains, or works or burner
used, or excess committed or continued, or supply furnished.
The undertakers may remove the gas pipes notwithstanding
any previous contract : sec. 18.

Wilfully removing, destroying, or damaging any pipe,
pillar, post, plug, lamp, or other work of the undertakers
for supplying gas, or wilfully extinguishing any public
light, or wasting or improperly using any of the gas sup-
plied. Penalty not exceeding £5, in addition to the amount
of the damage done : sec. 1 9.

Carelessly, or accidentally breaking, throwing down, or
damaging any pipe, pillar, or lamp belonging to the under-
takers, or under their control (a). Penalty such sum as the
justices may adjudge by way of satisfaction not exceeding £5:
sec. 20.

Hindering an officer of the undertakers from inspection
of the meters, <fec. Penalty not exceeding <£5 (6) : sec. 15.

Connecting or disconnecting a meter without notice.
Penalty not exceeding £6 : 34 & 35 Vict. c. 41, s. 15.

The following are offences by the officers of the com- Offences by
pany or undertakers : — officers

Not effectually preventing the escape of gas from the v°^ ^^®
pipes after twenty-four hours' notice, and wholly removing ^^^"^I'^^y-
the cause. Penalty £5 per day, after the expiration of the
twenty-four hours' notice (c) : sec. 24.

Allowing water to be fouled by the gas. Penalty not
exceeding £20 ; and not exceeding £10 per day during the
continuance of the offence : sec. 25.

Omitting to prepare and send an annual abstract of
account (d) of the total receipts and expenditure of all the <

rents and funds of the undertakers, as directed by sec. 38
of the Act (10 (fell Vict. c. 15), to the clerk of the peace
for the county {e) in which the gas-works are situate. Penalty
£20: sec. 38.

Failing to keep a copy of the Company's special Act in
their office, or to deposit the same with the clerk of the
peace of the county. Penalty £20 ; and also £5 per day

(a) See The Mayor of Here- 41, s. .S5, as to sending the ac-

ford V. Morton, 15 L. T. R. 187. counts to the Local Authority.

(J) See also 34 & 35 Vict. c. 41, (e) '' County " is defined by

BS. 21, 34. the Act to include "riding or

(c) As to compensation to the other division of a county having

injured party, see Burrows v. a separate commission of the

Manchester Gas and Coke Co., peace ; and also county of a citv

39 L. J. Ex. 33. or county of a town : " sec. 3, 10

(ti) See also 34 &; 35 Vict. c. & 11 Vict. c. 15.

N 3

274

HABITUAL DRUNKARDS ACT, 1879.

Recovery
of penal-
ties, and
appeal.

Appeal.

Workmen
malicious-
ly breaking
contract on
' gas and
water-
works.

afterwards, during which such copy shall not be so kept or
deposited: sees. 45, 46.

The undertakers neglecting or refusing to supply gas for
the public lamps. Penalty not exceeding 40s. for each
default : 34 & 35 Vict. c. 41, s. 36.

Or if supplied under a less pressure, or of a less illumi-
nating power, or of a less purity than the gas ought to be.
Penalty not exceeding £20 : ib. sec. 36.

All informations imder the Acts must be laid within six
calendar months : 8 & 9 Vict. c. 20, s. 151.

By sec. 1 of 10 <fe 11 Vict. c. 15, that Act is made to
extend only to such gas-works as are established under a
special Act, which shall declare it to be incorporated there-
with ; and b}^ sec. 40 the Railways Clauses Consolidation
Act, 1845 (8 ik 9 Vict. c. 20), with respect to the recovery
of damages not specially provided for, and of penalties, and
to the determination of any other matter referred to justices,
is incorpoi'ated with the special Act.

Sec. 157 of the Railways Clauses Consolidation Act
(8 & 9 Vict. c. 20) gives to any pai-ty aggrieved by any
determination or adjudication of any justice with respect
to any penalty or forfeiture under the provisions of any
Act incorporated therewith : his appeal to the quarter ses-
sions for the procedure under which, see in/ray tit., " The
Companies Clauses Act." See also the Sum. Juris. Act, 1879,
8. 32, giving an election of appeal.

As to a workman breaking his contract with a municipal
authority or others, whose parliamentary duty it is to supply
gas or water to a city, itc, whereby the inhabitants may be
deprived of their supply of gas or water, see infra, tit.,
" Conspiracy and Protection of Property Act, 1875."

HABITUAL DRUNKARDS ACT, 1879.

42 & 43 Vict. c. 19.

Under this Act are established "retreats," or licensed
houses, for the reception, control, and curative treatment
of habitual drunkards. By sec. 23, any licensee knowingly
and wilfully failing to comply with the provisions of the
Act, or neglecting any drunkard placed in the retreat, will be
guilty of an offence, and liable to a penalty not exceeding

HARBOUKS, DOCKS, AND PIERS. 275

£20, or imprisonment, not exceeding three months, with or
without hard hibour.

The hke punishment, under sec. 24, may be inflicted on
any person committing the following offences : —

(1.) Ill treating, or, being an officer, servant, or other
person emjjloyed in or about a retreat, wilfully neglecting
any habitual drunkard detained in a retreat.

(2.) Inducing, or knowingly assisting a habitual drunkard
detained in a retreat to escape therefrom.

(3.) Without authority from the licensee, or medical officer
of the retreat (proof whereof will lie on the offender), bring-
ing into the retreat, or without the authority of the medical
officer, excepting in cases of urgent necessity, giving or
supplying to any person detained therein, any intoxicating
liquor or sedative, narcotic or stimulant, drug or pre-
paration.

Any person who contravenes, or fails to comply with the
rules for the management of a retreat, will be subject to a
penalty not exceeding £20, or imprisonment not exceeding
three months, with or without hard labour : sec. 17. v

By sec. 25, the drunkard while detained in the retreat is
bound to conform to the rules thereof; or if he wilfully
act contrary to them, he will be subject to a penalty
not exceeding £5, or imprisonment not exceeding seven
days (a).

Proceedings must be taken within six calendar months :
11 & 12 Vict. c. 43, s. 11.

An appeal may be made under sec. 30, to the next quarter Appeal,
sessions for the county, borough, or place, in which the cause
of appeal has arisen ; and the requirements to be followed
under the clause are similar to those under sec. 31 of the
Summary Jurisdiction Act, 1879, which see. Under both
sections the punishment may be mitigated.

HARBOURS, DOCKS, AND PIERS.

The 10 & 11 Vict. c. 27, the Harbours, Docks, and Piers
Clauses Act, 1847, is the general consolidation Act in refer-
ence to those undertakings ; and that Act, together with the
prior Act, 54 Geo. 3, c. 159, contain several matters, which

(rt'.) At the expiration of his imprisonment he will be brought back
to the retreat.

276 ' HARBOURS, DOCKS, AND PIERS.

are therein provided for, and are subject to appeal to the

quarter sessions.

Throwing The statute 54 Geo. 3, c. 159, s. 1 1, prohibits persons letting

ballast, ballast, rubbish, &c., to be cast into any ports, roadsteads,

sea'&c harbours, &g., under a penalty not exceeding £10, over and

above all expenses which may be incurred by the removal

into a proper place of the matters which may have been so

deposited.

Sec. 12 directs the way in which a ship maybe unloaded.
Sec. 13 (a). The ballast or other matter is to be cast on
the shore from the sbip's-side nearest the shore, under a
penalty not exceeding <£10, over and above the cost of
removing to a proper place such matter as may be so cast
ashore. The like penalty for taking ballast : sec. 1 4.

Sec. 15 provides for the use of tarpaulins, in order to
prevent any part of the ballast being unloaded from falling
into the sea, harbour, &c. ; any person offending therein is
subject to a penalty of .£5.

Sec. 21 provides for the recovery of the penalties.
Appeal. Sec. 26 gives an appeal to any persons convicted of any

of the above offences to the quarter sessions, to be holden
for the county, city, or place where the matter of appeak
shall arise, and which shall be holden within three calendar N^
months next after such convictions upon the appellant first ^
giving ten days' notice of such appeal ; the fourteen days'
notice, under Baines' Act, will not apply as assumed in JR. v.
Salop JJ., 50 L. J. M. C. 72 ; but see the requirements,
under the Sum. Juris. Act, 1879, s. 31, which are applicable
to this class of appeal on an election to appeal under that
Act. See tit. "Sum. Juris. Act," sec. 32.
Offences Under the Act 10 & 11 Vict. c. 27, there are various

under 10 & offences provided for, and which are as follows : —

^7 ' The undertakers failing to provide a watch-house and

' ^ ' boat-house for the use of the Custom-house officers, and

takers to keeping the same in suitable repair, with all necessary
provide weighing materials (sec. 14), are under a penalty of XI 00
watch- for every month during the time the same shall continue
house Qy^^ of repair, and wh'ch penalty may be recovered as a debt

due to the Crown : sec. 15.

Life-boats, Sections 16 & 17 provide for the maintaining a well-

&c.,tobe appointed life-boat by the undertakers (unless under the

provi e . gpg(.ja| Ji^qi they need not do so), with a Manby's mortar, a

sufficient supply of Carter's rockets, &c. : penalty £2 for every

(a) See sec. 73, 10 & 11 Vict. c. 27, j)ost, p. 279.

HARBOURS, DOCKS, AND PIERS. 277

twenty-four hours during which such Hfe-boat, &c., should
not be provided.

The undertakers are bound, under sec. 18, to provide a Tide gauge,
tide or weather-gauge and barometer ; and they are liable, '^^*
under sec. 19, on failure to make such provision, to a penalty
not exceeding £2 for every twenty-four hours during the
time the same may not be provided or maintained.

They are also under a further penalty not exceeding .£10
for each month they shall neglect to send to the Admiralty
a full and true account of the daily workings of such tide-
gauge and barometer, and the daily state of the wind and
weather : sec. 19.

Under sec. 28, vessels in Her Majesty's service are exempt Exemption
from rates for the use of the harbour, &c. Any person ^^°™ ^^*^^'
claiming and taking the benefit of such exemption without ^onefuUy
being entitled thereto will be liable to a penalty not exceeding claiming
£10. exemption.

Within twenty-four hours after the arrival of a vessel Master
within the limits of the harbour, dock or pier, the master is *o report
to report such arrival to the harbour-master ; on failing to ^^"'''^^*
do so, he will be liable to a penalty not exceeding £10 :
sec. 35.

Should the master fail to produce his certificate on Master to
demand to the collector of rates, he will be liable to a produce
penalty not exceeding £20 : sec. 36. cei-tificate.

The master is to give an account of his cargo unshipped Master to
within the limits of the harbour, &c. (sec. 37) ; on failure to s^"^®
do so, he is subject to a penalty not exceeding £10 : sec. 38. ^^^°^"* °
. Persons shipping any goods on board any ship within the shippers to
limits of the harbour, dock or pier, shall give the collector give ac-
of rates a true account, signed by him, of the kinds, quantities count of
and weights of such goods. Every person shipping goods S<>ods to be
without giving such accounts will be subject to a penalty, ^ ^PP^^*
for every such offence, not exceeding £10 : sec. 39.

Any master of a vessel evading the payments of harbour. Evading
dock or pier rates, will forfeit to the undertakers three times ^**®^*
the amount of the rates of which he shall have evaded the
payment, and to be recovered as penalties.

The undertakers are in each year to make an annual Annual
return of their receipts and expenditure for the year ending account of
31st December (or some other convenient day), and shall Jg^^^^°. f
send a copy thereof to the clerk of the peace of the county the clerk
in which the harbour, &c., may be situate ; omitting to do of the
so, they will forfeit for every such omission the sum of £20 : P^ace.
sec. 50.

278

HARBOURS, DOCKS, AND PIERS.

Harbour
duties ;
masters of
ships to
comply
with rules.

Misbe-
haviour of
harbour-
master, &c.

Bribing
officers.

Dismant-
ling vessels,

Entering
dock, sails
to be
lowered.

Moorings
in dock.

Cutting
moorings.

Vessels
lying near
a harbour
Hvithout
permis-
sion.

Removal
of vessel,
when re-
pairs
reqiiired
to harbour
or dock.

Discharge
of cargo.

Masters of vessels within the hmits of the harbour, tkc,
are to comply with harbour, &c., regulations; penalty not
exceeding £20 : sec. 53.

A harbour-master or his assistants exercising any of their
powers without reasonable cause, or in an unreasonable or
unfair manner, will be liable to a penalty not exceeding £5 :
sec. 54.

Any person bribing, giving or offering a bribe to any
harbour officer to induce him to neglect his duty in relation
to his office ; penalty for every such offence, £20.

Vessels entering a harbour or dock, or approaching a pier,
the master shall dismantle her as the harbour-master shall
direct, under a penalty not exceeding £10 : sec. 59.

Vessels are to have their sails lowered or furled on enter-
ing a dock ; and any master navigating a vessel under sail
into or in the dock, for every such offence he will be liable
to a penalty not exceeding £10 : sec. 60.

Every vessel in the harbour or dock, or at or near the
pier, is to be secured with substantial hawsers, tow-lines, or
fast fixed to dolphins, booms, buoys, or mooring-posts ;
penalty, after notice from the harbour-master to make such
mooring, not exceeding £10 : sec. 61.

Any person wilfully cutting, breaking, or destroying any
mooring or fastening of any vessel lying in the harbour, or
dock, or at or near the j)ier, will be liable to a penalty not
exceeding £5 : sec. 62.

No vessel, except with the permission of the harbour-
master, shall lie or be moored near the entrance of the
harbour or dock, or within the prescribed limits ; a master
so doing, and not forthwith removing his vessel when
required by the harbour-master, will be liable to a penalty
not exceeding £5, and a further sum of twenty shillings for
every hour that the vessel shall remain within such limits
after a reasonable time for removing the same has expired
from such requisition : sec. 63. See Gardner v. Whitford,
23 J. P. 358.

When the undertakers require to repair or cleanse the
harbour, dock or pier, the master is to remove his vessel
therefrom within three days after notice in writing so to do ;
on his neglect to comply with such notice, he will be linble
to a penalty not exceeding £10 (sec. 64) ; and, under sec. 65,
the harbour-master may remove the vessel on such neglect.

The master is to discharge his cargo as soon as conveniently
may be after entering the harbour or dock ; and after dis-
charo;e cause his vessel to be removed without loss of time

HARBOURS, DOCKS, AND PIERS. 279

into such part of the harbour as may be set apart for light
vessels ; if the master fail so to remove his vessel after
twenty-four hours' notice in writing from the harbour-
master, he will be liable to a penalty not exceeding ^10,
and all expenses of a removal of the vessel by the harbour-
master : sec. 66.

Any wharfinger or other servants of the undertakers, or Wharfin-
any of their lessees or their servants, giving undue preference, gers giving
or showing any partiality in loading or unloading any goods preference,
on any quays, w'harfs, or other works belonging to the under-
takers, tlie person so offending will be liable to a penalty not
exceeding £5 : sec. 67.

All combustible matters, as tar, pitch, resin, spirituous Combusti-
liquors, turpentine, oil, are to be removed from any quay, ble matters
dock, or wharf belonging to the undertakers, or from any moved,
deck of any vessel within the harbour or dock, or at or near
the pier, to a place of safety, within two hours after notice in
writing from the harbour-master ; and on failure to do so he
will be liable to forfeit a sum not exceeding 40s. for every
hour such combustibles shall remain in any such place after
the expiration of two hours from the service of such notice :
sec. 69 (a).

For the following offences the parties offending will be General
liable to a penalty not exceeding £10, that is to say : — penalties.

1. Boiling or heating pitch or other combustibles within
the limits of the harbour, dock, or pier.

2. Having fires or lighted candles or lamp in a vessel
without permission of the harbour-master.

3. Having any fire, candle, or lighted lamp within any
dock, (kc, except at such time and in such manner as may
be permitted by the bye-laws of the undertakers.

4. Having any loaded gun on the quays or works of the
harbour, &c., or in any vessel in the harbour, <fec.

5. Bringing without permission or suffering to remain any
gunpowder on the quays or works of the harbour or within
the dock, or on the pier, or in any vessel within the harbour
or dock, or at or near the pier : sec. 71.

The harbo\ir- master may, under sec. 72, enter any vessel in Obstruct-
the harbour and search if any offence is being committed ^^S officers,
under sec. 71 ; any person obstructing him in the execution
of such duty will be liable to a penalty not exceeding £10.

Every person throwing ballast, earth, ashes, stones, or Throwing

(rt) All combustibles are to be guarded during the uight (sec. 70).

280 . HIGHWAYS.

ballast into other things into the harbour or dock will be liable for every
the bar- such offence to a penalty not exceeding £5 (saving the rights
bour. q£ owners of land damaged by the overflowing or washing of

any navigable river) : sec. 73.
Licensed Only licensed meters and weighers are to be employed in

meters. weighing or measuring cargoes ; any unlicensed person acting
as a meter within the limits of the harbour, &c., will, for
such offence, be liable to a penalty not exceeding £5, and
the weighing, &c., deemed illegal : sec. 82.

Sections 83 to 90 provide for the making of bye-laws by
the undertakers, and which by sec. 89 are to be binding on
all parties ; and by sec. 84 such bye-laws may be enforced
under such reasonable penalty as the undertakers shall think
fit, not exceeding £6 for each breach thereof
Appeal. By sec. 92, The Railways Clauses Consolidation Act, 1845,

with respect to the recovery of damages (not specially pro-
vided for) and penalties, and the determination of any other
matter referred to justices, is incorporated with this (10 <fe
11 Vict. c. 27) and "the special Act;" and, therefore, the
special Act being so incorporated, there is an appeal to the
quarter sessions under the 157th clause in the Railways
Clauses Consolidation Act, by the party aggrieved by any
conviction made under the 10 & 11 Vict. c. 27, or "special
Act." For the appeal clause, see infra, tit. " The Companies
Clauses Act ; " and see also the Sum. Juris. Act, 1879, s. 32.
For the rating, see tit. "Poor Rate."

HIGHWAYS.

The several Acts affecting the law relating to highways
are : —

5 &6 Will. 4, c. 50 ; the General Highway Act of 1835
(which came into operation on March 20, 1836).

2 tfe 3 Vict. c. 45, as to the closing and maintaining of
railway gates.

4 & 5 Vict. c. 51, agricultural lands deemed to be enclosed.

4 (fe 5 Vict. c. 59, the application of a portion of the high-
way rates to turnpike roads in certain cases.

5 & 6 Vict. c. 55, further provisions as to the closing of
railw^ay gates at level crossings.

8 (fe 9 Vict. c. 71, as to the sale of exhausted parish lands.
12 Vict. c. 14, surveyors of highw^ays to recover costs for
distraining for rates.

HIGHWAYS. 281

24 & 25 Vict. c. 70, "The Locomotive Act, 1861."

25 & 26 Vict. c. 61, "The Highway Act, 1862."

26 (fe 27 Vict. c. 61, Act preventing waywardens contract-
ing for works in their own district.

27 & 28 Vict. c. 101, " The Highway Act, 1864."

28 & 29 Vict. c. 83, " The Locomotive Act, 1865."

39 (fe 40 Vict. c. 62, " The tSale of Exhausted Parish Lands
Act, 1876 " — appropriated to supply materials for the repairs
of roads.

41 tfe 42 Vict. c. 77, " The Highways and Locomotives
Amendment Act, 1878."

42 tk 43 Vict. c. 93, " The Highways Accounts Returns
Act, 1879."

By the Act 1862, s. 4, and by the Act 1864, s. 1, the Title,
several Highway Acts are included under the short title, !l-^!j®
The Highway Acts. Acts^

To save repetition, the principal Highway Acts are referred ' ^
to in this chapter as of tlie year they were passed.

Highway boards were first formed under sec. 18, Act The
1835 (rt), as corporate bodies with a common seal under the Jiig^'^W
style, "The Board for the Eepair of the Highways in the
Parish of "

The board formed under that section will be elected
annually, and act as a board to carry into effect all the
powers, authorities, and directions of the Act ; and have all
and every the powers and authorities given and created by the
Act, and granted to or vested in the vestry, and in any per-
son or persons as surveyor, for the purposes of the parish
electing such board ; and such powers were vested in the
persons so elected, or any three of them acting as such
board.

The Highway Board will consist of the waywardens elected Constitu-
in the several places within the highway district (sec. 10), ^.^^°^
and of the justices acting for the county and residing within j^oard^^
the district : Act 1862, s. 9, sub-s. 1. The board will be a under Act
body corporate, by the name of the Highway Board of the 1862.
district to which it belongs, with a common seal : sub-s. 2 ; A body
and any minute of the proceedings at meetings of the board corporate.
or their committees, if signed by any person purporting to be Minutes
the chairman of the board or committee, will be receivable in evidence;

(<7) Piior to March 20th, 1836, vestries and appointed by the

the day the Act 1835 came into justices in special highway ses-

force, the highways were under sions held for the division in

the management of local surveyors which the parish was situate,
of highways, nominated by the

282

HIGHWAYS.

Meetings
deemed
duly held.

Qualifica-
tion of the
justice as
a member.

Election of
way-
wardens.

First

meeting of
the high-
way board.

The clerk.

The sur-
veyor.

evidence in all proceedings without further proof; and until
the contrary be proved, the meetings of the board will be
deemed to have been duly held : sub-s. 5.

To qualify a justice, ex officio, to act on the board, he must
be "residing within the district ;" the mere occupation of a
place of business will not be sufficient. If entitled to be a
member of two or more highway boards, he must elect to be on
one board, and give notice thereof in writing to the clerk of
the board for which he elects to act, and which notice will by
him be transmitted to the clerk of the peace of the county.
The justice will be bound by that notice, and not qualified to
sit at any other board : see sec. 29, Act 1864.

Borough justices will not be qualified to act on the board,
nor will the sheriff be qualified : 1 Mary, St. 2, c. 3, s. 8.

For the regulations for the election of the waywardens, see
sec. 10, Act 1862 : and as to their qualification, see sec. 71,
Act 1835, it beii)g the same as that required as to person
formerly eligible to be elected a surveyor of the highways.

Though a district may not be known by a defined legal
boundary, the waywarden must be elected by the inhabitants
of that part, and not by those of the whole parish : see
It V. Gascoign, 29 J. P. 389 : see also R. v. Dix, 30 J. P.
390. Quo warranto will lie for the office. As to the proper
notices on the election of a waywarden, see R. v. Cooper^
L. R. 5 Q. B. 457 ; 39 L. J. Q. B. 273.

He will continue in office until his successor is appointed,
and is eligible for re-election : sec. 10, Act 1862.

The first day for the meeting of the Highw^ay Board will
be the day of the formation of the district : Act, 1864, s. 10,
repealing sec. 5, Act 1862 : see also s. 40, ih. ; R. v. Lindsey,
35 L. J. M. C. 90 ; L. R. 1 Q. B. 68 ; 6 B. & S. 892.

The clerk to the board has his duties prescribed by sec.
15, Act 1862 ; and besides attending the meetings and keep-
ing the minutes, &c., he is to " perform all such other duties
as the board may direct."

The surveyor (sec. 16, Act 1862) is to act as the agent of
the board in carryiiig into effect all the w^orks and performing
all the duties required by the Act to be carried into effect by
the board, and in all respects he is to conform to the orders
of the board in the execution of his duties {a).

Under sec. 6, Act 1878, two or more highway districts

(rt) These words will not excuse
him on doing an unla^vful act :
Mill V. Hawker, 44 L. J. Ex. 49 ;

L. R. 10 Ex. 92 ; 73 L. T. 177,
Ex. Ch.

HIGHWAYS. 283

may unite in appointing and paying a district surveyor with
all the powers of a district surveyor under the Highway
Acts.

Under the Public Health Act, 1875, sec. 144, every urban Urban
authority within their district, exclusively of any other authority
person, will execute the office, and be surveyors of high- s^^i'veyors
ways {a) ; and have, exercise, and be subject to all the ^y^^J^
powers, authorities, duties and liabilities of surveyors of
highways under the law for the time being in force, save
only where they are or may be inconsistent with that Act.

And every urban authority will also have, exercise and be And act as
subject to all the powers, authorities, duties and liabilities the vestry,
which by the Highway Act, 1835, or any Act amending the
same, are vested in and given to the inhabitants in vestry
assembled of any parish within their district.

All ministerial acts required to be done by or to the Ministerial
surveyor of highways may be done by or to the surveyor of acts by
the urban authority, or by or to such other person as they s^^^veyor.
may appoint: Public Health Act, 1875, sec. 144.

Upon the requisition of five or more justices of the county Highway
(two of whom, under Act 1864, sec. 6, must be resident in districts,
the district, or acting in the petty sessional division in which
the proposed district, or some part thereof, is situate), the
court of general or quarter sessions may divide the county,
or some part thereof, into highway districts (see Form (A.),
Schedule to Act 1862) : sec. 5, Act 1862.

By sec. 39, Act 1862, the highway district may from time Alterations
to time be altered by " the county authority " {h) by the of high-
addition or subtraction of any parishes by provisional "^"^^.^y .
and final (c) orders of the justices, and for which the notice ^^^*"<^*^'
required under sec. 5 must be followed. See also Act 1864,
sec. 14.

Under the Act 1878, sec. 3, the county authority — the Highway
justices in general or quarter sessions, sec. 38, Act 1878 — are district
directed, in forming highway districts, to have regard to the *° ^^ ^°"
boundaries of the rural sanitary districts in their county, -^^ ^^^^
and are to form highway districts so as to be coincident in with
area with rural sanitary districts (see Public Health Act, sanitary
1875), or to be wholly contained within them. districts.

AVhere a highway district, whether before or after the Act Rural

(«) As to appointment of sur- quarter sessions, sec. 38, Act 1878.
veyoi-s of highways, see sec. 25, {c) This means an order pub-
Act 1878; Act 1885, ss. 6, 10; lished in accordance with the
Act 1862, s. 11. Act.

(&) The justices in general or See Act 1864, s. 18.

284

HIGHWAYS.

authority
as the
highway
board.

Where

district in
more than
one county,

Amending
order.

Vesting
powers in
local autho-
rity as a
highway
board .

Condition
precedent
to forma-
tion of a
highway
district.

Places
separately
maintain-
ing their
own high-
ways.

Part of
parish

1878, is or becomes coincident in area with a rural sanitary
authority, such authority may apply to the county authority
stating their desire to act as the highway board within their
district. And the county authority may by order declare
from and after a day named (to be called the commencement
of the order) such rural authority shall exercise all tlie
powers of a highway board, and from the commencement of
such order the existing highway board for the district will be
dissolved ; and the waywardens and surveyors will cease to
hold office : sec. 4.

Where the highway district, coincident in area with the
rural sanitary district, is situate in more than one county,
the order to form it under this section may be made to the
authority of either county, but will be of no force until
approved of by the authority of the other county (ib.)

There is given a power, in a similar manner, to amend,
alter or rescind the order (ib.)

By sec. 5, all such powers, rights and duties, liabilities,
capacities and incapacities (except the power of obtaining
payment of their expenses by the issue of precepts in manner
provided by the Highway Acts, or the power of making,
assessing, and levying highway rates) as are vested in or
attached to the highway board, or any surveyor or surveyors
of any parish forming part of the district, shall vest in and
form part of the rural sanitary authority.

It was held to be a condition precedent(under the Act 1862)
to the formation of a highway district, or any alteration
of one, that a notice thereof be sent to the churchwardens
and overseers of every parish proposed to be included in
such highway district. An omission so to do rendered the
order invalid : B. v. Sussex, 28 J. P. 469. But see now
Act 1864, sec. 16, "an order containing a prohibited place
shall be construed to take effect as if that place had not been
mentioned therein.^'

By sec. 5, Act 1864, any parish, township, tithing, hamlet,
or other place of a known legal boundary in which there are
no highways repairable at the expense of the place, or in
which the highways are repaired at the expense of any
person, body political or corporate, by reason of any grant,
tenure, or appointment of any charitable gift or otherwise
howsoever than out of a highway-rate or other general rate
will, for the purposes of the Highway Acts, be deemed to be
a place separately maintaining its own highways.

Also by the same 5th sec, where part of a parish (under
the Local Government Act, 1858, Amendment Act, 1861,

HIGHWAYS. 285

sec. 9), is treated as forming part of a district constituted included
under the Local Government Act, 1858, for the purpose of ii\dis-
the repairs of the highways and payment of highway-rates, *^^*^*'
but for no other purpose, such part shall for the purposes of
the Highway Act, 1862, and ''this Act "(1864), be deemed a
place separately maintaining its own highways, and capable
of being included in a highway district without the consent
of the Local Board.

Where the highways of one part of a parish are, in Part of
pursuance of a private Act, repairable out of a different rate highways
from that out of which the highways of the other part are ^^.^^^+^ ^
repairable, each of such parts shall, for the purposes of the ^ct or
Highway Acts, be deemed to be a place separately maintain- separate
ing its own highways. ^^t^*

Extra parochial places (or highway parishes) are for all Extra
civil parochial purposes annexed to and incorporated with the Parochial
next adjoining parish with which they have the largest com- ^^^ ^ ''
mon boundary (b) : 31 & 32 Vict. c. 122, s. 27.

By sec. 8, Act 1864, where a parish or place separately A parish
maintaining its own highways is situate partly within and partly
partly without the limits of a borough, the justices may by ^^^^^^ ^^^
their provisional and final order (c) include in a highway ^^thout a
district the outlying part of such parish or place ; and such borough,
outlying part will be deemed to be a place separately main-
taining its own highways, and a waywarden may be elected.

For the annexing contiguous places with an adjoining Contiguous
county (d) there must be concurrent or subsequent provisional places.
orders to the same effect made by the justices of every other

(a) By sec. 9, the justices may (c) These orders may be made
in petty sessions appoint over- without the consent of the coun-
seers or otherwise deal with cil of the borough, or of the
any extra parochial place with vestry of the parish to be in-
the view of constituting it a eluded in the order, as was for-
hiuhway parish or part of a high- merly the case under Act 1862,
way i)arish, in the same manner sec. 7.

as they may deal with such place As to the making a borough,

respecting the maintaining its having a non-intromittent clause

own ])Oor wnder 20 Vict. c. 19 ; under ancient charters, but not

see B. v Lancashire, 2 L. J. M. within the exceptions in sec. 2,

C. 244. Act 1862, part of a highway dis-

(b) There are some few outly- trict of the adjoining county, as
ing parts of parishes which are in was done in the case of the
two couTities — as, for instance, borough of East Looe, Cornwall,
North Woolwich in Essex, which see Giles v. Gluhh, 13 L. T. 526.
is a part of the parish of Woolwich (rf) Where there is an appeal
in Kent, and having the Thames against accounts from places
intervening ; as to such a case, situate in different counties, and
see sec. 13, Act 1864. places situate partly in one county

286 HIGHWAYS.

county in which any part of such place is situate : see Act
1864, s. 13.

Section 33, Act 1862, provides for the annexing outlying
parts of a parish to an adjoining district, and where so
annexed it will be deemed to be a parish sej)arately main-
taining its own highways : see also extra-parochial places,
sec. 32.
The urban Under the Public Health Act, 1875, sec. 6, the urban
authorities, authority will be : —

In a borough ; the mayor, aldermen, and burgesses acting
by the council.

In an Improvement Act district, and having no part of its
area situate within a borough or local government district ;
the improvement commissioners.

In a local government district, having no part of its area
situate within a borough, and not coincident in area with a
borough or improvement district ; the local board.
The rural The area of a union not coincident in area with an urban
authority district, and excepting those portions included in the urban
under the district, will be the rural district, and the guardians the
Health ^^^^'^^ authority : Public Health Act, 1875, 38 & 39 Vict. c.
Act, 1875. 55, s. 9.

Urban "Urban sanitary district" and "urban sanitary autho-

sanitary rity " mean respectively the districts and authorities declared

"district" to be SO by the Public Health Act, 1875 ; except that, for the

fvi'^^'t'-" P^^T^s^s <^f *^^ -^^^ (1878), no borough having a separate

exception q^^i'ter sessions, and no part of any such borough, shall be

in Act, deemed to be included in any such district ; and where

1878. part of a parish is included in such district for the purposes

only of the repairs of the highways, such part shall be deemed

to be included in the district for the purposes of the Act

(1878) : see ante, sec. 7, Act 1862, and sec. 8, Act 1864.

The following are highway areas : —

1. Urban sanitary districts.

2. Hio^hwav districts.

3. Highway parishes not included in any highway district
or any urban sanitary authority : Act 1879, sec. 14.

Definitions ^^ ^^ ^^ important to bear in mind the definitions of the

of'county." terms used in " The Highway Acts " of " county," " divi-

'•division," sion," "limit."

and"'limit."

and partly in another, it will be been annexed by the provisional
subject to the jurisdiction of the order, or to which, after the Act
county in which the district is of 1864. it should be declared
situate to which such place had annexed : Act 1864, s. 44.

HIGHWAYS. 287

There is no definition of county in the Act 1835; it is "County"
there left to its ordinary common law application. ^ct, 183o.

The first definition of county is in the Act 1862, sec. 2, Act 1862.
which has reference to the formation of highway districts,
and is confined to tliat Act. It is there declared not to include
a " county of a city " or a " county of a town ; " but when a
county, '' as hereinbefore defined," (a) is divided into ridings
or other divisions having a separate court of quarter sessions
of the peace, it shall mean each such riding or division, and
not the entire county ; and for the purposes of the Act, all
liberties and franchises, except the liberty of St. Albans,
which shall be considered a county, and except boroughs,
as hereinafter defined, shall be considered as forming part of
that county by which they are surrounded (6) ; or if partly
surrounded by two or more counties, then as forming part of
that county by which they have the largest common
boundary ; the borough here meaning a borough under 5 &
6 Will. 4, c. 76, or any place to which the provisions of that
Act have been extended.

" County,'' under the Act 1878, sec. 38, has the same
meaning as it has in the Highway Act, 1862 and 1864;
except that every liberty not being assessable to the county
rate of the county or counties within which it is really
situate, shall, for the purposes of the Act, other than those
relatino" to the formation and alteration of hig-hwav districts,
and . the transfer of the powers of the highway board, be
deemed to be a sepai-ate county.

The term "county" will, under Act, 1864, s. 3, include
any division of a county to which a separate treasurer is
appointed (c). Such a division would come within the
definition of " limit " in the Highway Act as having a separate

(</) 1\n&-amBtT[iQ&rL negatively the Act 1864 for the nominating

defined as not being " a county any additional Lord- Lieutenant ;

of a cit}', or a county of a town." or that there shall be any second

(J)') Chartered towns, not in- Clerk of the Peace. The Clerk

eluded under the Municipal Cor- of the Peace is the officer of the

poration Act, 1885, such as Lord-Lieutenant, or 6V,s'^^as /^(//"w-

Queenborough, Kingston, &c., lorum, and acts as his deputy at

would form a part of the county the quarter sessions, as well as

under the above definition : see being the officer of the Court of

East Looe (^J/ni/or) v. Cornn'all, Quarter Sessions ; there could he

Clerk of tin- Ptace, 3 B. k. S. 20 ; no reason against his appointing

31 L. J. M. C. 24.5 ; Weir v. another clerk of the peace or

Devon, Clerk of the Peace, 6 B. deputy to act in the court of the

& S. 7 ; .34 L. J. M. C. 47 ; see newly-created division, or ''limit"

also (wilea v. Glub, 13 L. T. 526. of the county.

(^) No provision is made in

288 HIGHWAYS.

and independent jurisdiction from that of the county at large.
See remarks of Pattison, J., in R. v. Suffolk^ post.
"Division" " Division" will include " limit."

^^"^ ^^ The interpretation to be put upon the term " limit " in
(sees 82 t^^se Acts, and particularly as used in the 82nd, 85tb, and
and 85, 88th sections of the Act 1835, will be seen hereafter to
Act 1835). have an important bearing on the selection of the jurisdic-
tion to assess the compensation for the taking of land or
the widening a highway under sec. 82, or for the stopping
up, (fee, a highway under sees. 84 and 85, or to which an
appeal will be made under sec. 88.
A'. V. Siif. R. V. Sufolk, 5 D. & L. 558 ; 17 L. J. M. C. U3, has been
folk, 5 frequently quoted as explaining the interpretation of *' limit,"
17 TT ^^^^ question there was : — w^as an adjourned sessions held for
M. C. 143. ^ division of a county (such division being merely created
by the justices for the greater convenience of transacting the
public business), to be taken to be as an original sessions held
for the division, and from the first day of which the parties
could date their proceedings for the lodging w4th the clerk
of the peace the certificate of the justices for the stopping
up the highwa}^, acting on the assumption that such a divi-
sion of the county was the limit within which the highway lay.
But Pattison, J., held, that such division of the county
was 7?o^ witbin the meaning of the term limit; and that
the certificate should have been lodged with the clerk of the
peace, at a time dating as from the first day of the original
sessions for the county at large, and not that of any adjourn-
ment thereof (a); and Pattison, J., further remarked, that
he was " inclined to think the term ' limit ' referred to places
where titer e were differ^ent jurisdictions, wliere distinct and
original courts exist in each for the ^ limit' "

There is no definition of limit in the Act 1835, nor in

the repealed highway statutes, 13 Geo. 3, c. 78; or 55 Geo. 3,

c. 68.

The terra But in the statute 13 Geo. 3, c. 78, the term li77iit is

"limit" frequently used, as well as in 55 Geo. 3, c. 68, and which

P"°^' *° Acts were in full operation at the time of the passing the

Act 1835, and for six months subsequently, until the Act

of 1835 came into operation.

The application of the word limit had therefore been long
well understood, and had been then only recently used in

(«) See B. V. Susfiex, 7 T. R. shire, 27 L. J. M. C. 161 ; 30

107 ; II. V. Sm.<tex, 34 L. J. M. C. L. T. 149, S. C. eo nom. >S7vift v.

69 ; 2 B. & 8. 683 ; M. v. Lanca- Lancashire. 22 W. R. 76 ; 11. v.

shire, 34 L. T. 124 ; R. v. Lanca- Drauijhton (n), 2 B. & S. 683.

HIGHWAYS. 280

other statutes of the same session, as in the Parliamentary
Boundaries Act, 2 & 3 Will. 4, c. (14, " to settle and describe
the divisions of counties, and the limits of cities and
boroughs," &c., and adopted in the Municipal Corporation
Act, 5 & 6 Will. 4, c. 76, and in which the terms " divi-
sions " and " limits " v^^ere clearly used to indicate separate
and independent jurisdictions.

The following may be selected as instances where " limit " Instances
is used in the former Highway Act, 13 Geo. 3, c. 78 : — ^. "Hmit"

In sec. 1 the constable is directed to send a copy of the jj^ 23 (je^,.
list of persons chosen to serve as constables to one of the 3, c 78.
justices " within the limit of the county, riding, division,
hundred, city, precinct, or liberty ivhere the parish should lie."
And return the original list to the justices in special
sessions, to be held for the highways for that " limits

In sec. 71 justices are directed to hold their special sessions
^^ within their respective limits.''^

Sec. 10 gave power to widen a highway. It is on that 13 ^eo. 3,
section, the 82nd clause of the Act 1835, was evidently ^•^°'^* •^*^'
framed. The proceedings under sec. 16 were to be on the wideninf^
view of two justices, refen-ing to them as " the 5ai<i justices;" a highway
that is, the justices mentioned in sec. 1, 13 Geo. 3, c. 78, as compared
justices acting '* within the limit of the county, riding, division, ^l } ^' ' ""
hundred, city, precinct, or liberty." And the compensation ^g^^
to be made for land taken, in case of no agreement being
made for the transfer, was to be determined at " the quarter
sessions, to he holden for the limit wherein the ground should
lie.'' And the amount of compensation awarded was to be
paid "to the clerk of the peace of such limit." See also sec. 2,
55 Geo. 3, c. 68 (Highway Act).

Sec. 19 of 13 Geo. 3, c. 78, and sec. 2 of 55 Geo. 3, c. 68 Proceedings
provide for the diverting, turning, or stopping up a high- "" o
way. The proceedings were different to those under sees. ^ 73 g' 19
84 and 85, Act 1835. A highway was then diverted, &c., and 55
by an oixler of special highway sessions ; but the party Geo. 3,
aggrieved had his right of appeal by virtue of an inquisition ^- ^^.» ^' 2»
under a writ ad quod damnum, " to the next quarter ses- ^ ^ j^-^j^_
sions holden /or the limit wJiere tJie highway should lie.'' ^vay as°

Upon the justices making their certificate of the new way compared
being completed to their satisfaction, such certificate ^vas ^^^^^s- S^»
returned to the clerk of the peace, "to he enrolled amongst -.ggc '^
the records of the said Court of Quarter Sessions ;" that is,
'"'•the sessions holden for the limit wherein the highway should
lie." This section was amended by sec. 2, 55 Geo. 3, c. 68,
which provided that after the notices (which were required

290

HIGHWAYS.

Appeal
under 13
Geo. 3,
c. 78, s. 81,
and 5.5
Geo. 3,
c. 68, s. 3.

Ol)serva-
tinns of
Parke, B.,
on the
jurisdic-
tion of a
"Jimit."

** Division

by that section to be published, and which ar6 similar to
those introduced into sec. 85, Act 1835) had been published,
the order (not the certificate, as now under Act 1835) at
the quarter sessions, to be holden " within the limit where
the highway, &c., shall lie," was to be returned to the clerk
of the peace in open court, and lodged with him ; and the
" order " at such quarter sessions was to be contirmed, and
by the clerk of the peace enrolled amongst the records of
the said court of quarter sessions. It was the record of
such an '''■order''' that was in question in R. v. Gloucestershire
JJ., 4 A. ik E. 689, ante, p. 9, under tit. "The Recorder
and his Court."

Under sec. 81, 13 Geo. 3, c. 78, and sec. 3, 55 Geo. 3,
c. 68, the person aggrieved on an inquisition, under a writ
ad quod damnum, might " appeal to the quarter sessions to
be held for the limit " wherein the cause of complaint arose.
Compare sees, 82, 91, and 105, of Act 1835.

The application of the term limit, in the statutes, 13 Geo. 3,
c. 78, and 55 Geo. 3, c. 68, as before set out, clearly defines
its application and meaning, and points to distinct and
original jurisdictions, and to which there might be attached
separate courts of quarter sessions, whether as of the " li7nit
of a counti/," d.'c., or the " lirnit of a city," &c. ; such court
of the " limit " having its own clerk of the peace. The
language of the statutes was, no doubt, present to the
mind of Pattison, J. ; and it certainly fully confirms the
opinion expressed by him in B. v. ISujfolk [sujyi^a), that the
term '' limit " had reference to an independent jurisdiction ;
and R. V. Gloucestershire {supra) may again be refen-ed to as up-
holding the highway jurisdiction of the ^^ liinit" of a city,
that case having been decided on the statute 55 Geo. 3,
c. 68.

Further, as to the application of the term " limit," re-
ference may be made to Beadsworth v. Torkington^ 1 Q, B.
780 ; Dorihester v. Ensor, L. R., 4 Ex. 335 ; Coventry {Mayor)
V. Lythall, 10 M. k AV. 780 ; in which last case Parke, B.,
said, " Certain liberties and large tracts of land beyond the
limits of the town had been included within the boundaries
of the borough ;" and at p. 177, the learned Baron speaks
of " the limits of the franchise." " Limit " may there be
considered, as applied by Parke, B., to indicate the franchise
or jurisdiction ; and " boundary," the area of the town.
See also sec. 7, Act 1862, refen-ing to a parish " within the
limits of a borough ;" and see Act 1864, s. 8.

In the definition clause, Act 1835. s. 5, it is enacted, " Divi-

HIGHWAYS. 201

sioii shall be understood to include limit." For explanation to include
of this definition, further reference maybe made to 13 Geo. 3, ^^"^^*-
c. 78, sec. 1 ; and as the terms were understood in 1835,
** division " is there used with "riding," and clearly meaning
a jurisdiction.

Ejusdem generis with " county," and with each of which
" limit " is associated : — As " the limit of county," " the limit
of a division," " the limit of a riding ; " — these " limits "
having separate quarter sessions, which may be inde-
pendentl}^ held as for an original jurisdiction, as referred to
by Pattison, J., in R. v. Suffolk (supra), supported as it is
by the judgment in H. v. Gloucestershire (supra), and remarks
by Parke, B. [supra).

Justices, — will include justices of the county, riding, divi- ''Justices."
sion, shire, town, borough, libeily, or place in which the
highway may be. Act 1835, s. 5.

Borough, — under sec. 38, Act 1878, is defined to mean "Bo- ,^
any place for the time being subject to the Municipal Cor- ^^"g"-
poration Acts. And also as to excepted boroughs, see Act
1862, s. 2 ; see also ante. Tit. Recorder.

Parish, — will include, parish, township, tithing, rape, vill, "Parish."'
wapentake, division, city, borough, liberty, market town,
franchise, hamlet, precinct, chapelry, or any other place or
district maintaining its ow^n highways ; and wherever any-
thing is prescribed to be done by the inhabitants in vestry
assembled (a), the same shall extend to any meeting of the
inhabitants contributing to the highway rates in places
where there shall be no vestry meeting, provided the same
notice be given as required for the assembling a meeting of
the vestry : Act 1835, s. 5.

Under the Act 1862, s. 3, parish is defined to include any
place maintaining its own highways.

Extixi Parochial places are where, in pursuance of 20 Vict. "Kxtra
c. 19, anyplace is declared to be a parish, or where overseers f^»ocu*»l
of the poor are appointed ; such place will be deemed to be a
place maintaining i ts own highways. And where, in piu"-^
suance of the same Act, any place is annexed to an adjoining
parish, or to any place in which the relief of the poor is ad-
ministered under a local Act, such place will, for the pur-
poses of the Highway Acts, be deemed to be annexed to such
parish or district for the purposes of the maintenance of the
highways, as w^ell as those of the Act mentioned. Act 1862,
s. 32, And see 20 Vict. c. 19, ss. 1, 4, 8 : see also B. v.

(a) See sec. 144, Public Health Act, 1875.

0 2

292 HIGHWAYS.

Central Whigland, 2 Q. B. D. 349 ; 46 L. J. M. C. 282; 36
L. T. 798 ; 25 W. E. 876.

Under 31 & 32 Vict. c. 122, s. 27, extra parochial places

will, for all civil purposes, be annexed to and incorporated

with the next adjoining parish with which they may have the

largest common boundaiy. There will also be annexed to

and incorporated with the parish adjoining accretions from

the sea, whether natural or artificial, and the part of the sea

to low water mark : see Blackpool Pier Company v. Ft/lde

Assessment Com. and Leyton Warheck Overseers, 46 L. J. M. C.

180 ; 36 L. T. 251 ; so also there will be annexed the part of

a river to the middle of the stream. See ixxit, '' Poor Rate."

Outlying Under sec. 33, Act 1862, where a part of a parish is not

^ . ^ contiguous to the parish of which it is a part, such outlying

may be P*^"^ ^^^'^J t)^ annexed by the justices to a district, and then be

annexed. deemed to be a parish maintaining its own highways. This

annexation may take place where the highway district is

formed under Act 1864, sees. 5 & 6.

"High- Highivays vf'iW. be understood to mean all roads, bridges

ways." ^Yiot heing county bridges), carriage ways, cart ways, horse

ways, bridle ways, footways, causeways, church ways and

pavements : ib. : see also Chapman v. Robinson, 1 E. & E. 25 :

Act 1835, 8. 63.

Where the access to a road at either end, has become im-
possible by reason of the ways leading up to it having been
lawfully stopped up, such road ceases to be a " public high-
way:" Bailey v. Jamieson, 1 C. P. D. 329 : see also R. v.
Waller, 31 L. T. 777, Q. B. / Souch v. East London Ry. Co., L. H.
16 Eq. 108 ; 42 L. J. Ch, 477; 21 W. R. 590, V. C. M. : these
later cases holding a cul de sac may still be a public highwa}'.
To create a highway by statute, the provisions creating it
must be strictly followed : Cid)it v. Maxse, L. R. 8 C. P.
704 ; 42 L. J. C. P. 278 ; 29 L. T. 244 ; 21 W. R. 789.

As to disturnpiked roads being declared '' main roads,"
and as to county highways, see Act 1878, sub ss. 13 — 15.
"Highway The terms "highway district" and "highway board " will
district " refer only to highway districts formed and highway boards
*JVj , „ constituted under the Highway Acts : Act 1864, s. 3.

Highway Board — is the board having jurisdiction within a
highway district.
" Highway Highway Parish — is a parish or place included, or capable
parish." of being included, in a highway district, under Act 1834, or

Act 1864 : Act 1878, s. 38.
" Highway Highway Authority, — as respects an urban sanitary' dis-
authoiity." trict, will be the Urban sanitary authority ; as respects a

HIGHWAYS. 293

Highway Disfricty the Highway Bojii'd ; and as respects a
Iliyhway Parish, the surveyors or other officers performing
simihir duties: Act 1878, s. 38.

HighuKiy Rate — will be any rate out of the produce of " Highway
which monies are payable to satisfy the precept of a high- rate."
way board.

Since the recent Acts repealing the Turnpike Acts, and " Main
thereby reverting the *^ turnpike roads " into public high- ^'^'^^^
ways, but without the means of maintenance by means of |gjg
*' tolls " payable at the " gates," it became necessary to pro-
vide other funds for their maintenance, and this was done by
the Act 1878, ss, 13—20,

When it appears to the highway authority that any Declaring
highway within their district ought to become a main road roads as
by reason of its being a medium of communication between ^'^lain
great towns, or a thoroughfare to a railway station or other- ^^'^^ ^'
wise, the highway authority may apply to the county au-
thority for an order declaring such road, as to such parts, to
be a main road ; and the county authority, if of opinion
there is probable cause for the application, will cause the road
to be inspected, and if satisfied the road ought to be a main
road, will make an order accordingly : sec. 15,

This application for the order is made to the quarter ses-
sions, where the matter is usually referred to the finance
committee for its report, which is bixjught before the next
subsequent sessions, when the final order is made ; post, p. 303.

When the order is made it is to be forthwith deposited OrJer to
with the clerk of the peace of the county, and be open to ^ ^^^'
inspection. But such order is to have no effect unless and ^"*^' '
until confirmed by a further order of the county authority
made within not more than six months after the making the
first order : sec. 1 5.

Where a turnpike road is situate in more than one county, Wlicrc
such road, for the purposes of the Act, will be treated as a turnpike
separate turnpike road in each county through which it ^^^^^ \" |^^^'"

1 rr count IGS-

passes : sec. 17.

Primd facie the inhabitants of a parish are of common Repair of
right bound to repair all highways lying within it, unless highway,
by prescription they can throw the onus on particular per- *\"^^ ^^^'"
sons by reason of their tenure ; this is by exception to the ^^ * ^'
general rule : R. v. Sheffield (Ashurst, J.), 2 T. R. 106 : R. v.
Midville, 4 Ad. & E. (N.S.) 240 ; one parish may be bound
to repair a highway lying within another parish, for which the
obligation must arise in respect of some consideration of a
nature as durable as the burthen cast upon them ; Lord

294

HIGHWAYS.

A parish
cannot be
rid of the
liahility to
repair hy
an agree-
ment.

Not to be
liable for
repairs out
of district.

New roads
may be

adopted.

Expenses
incurred
in repairs
of high-
ways

charged on
district
fund.

Exceptions

Ellenborough : R. v. St. Giles, Camhridge, 5 M. & S. 265.
Ill R. V. Ashby Folville, 35 L. J. 154, Cockburii, C. J., referred
to DaivsoR V. Willougliby, 34 L. J. M. C. 37, in which it is
remarked : " It may in some cases happen that a parish may
be l)ound to repair the highways in a part of another parish,
if a good and continuing consideration for such an obligation
can be shown ; " and in giving judgment the C. J. said : " The
only positive authority which the court was able to discover,
that, by prescription, one parish was bound to repair highways
in another parish was the passage in R, v. RagJey, 12 Mod.
409, in which Holt, C. J., said : ' The parish ought of com-
mon right to repair their highway ; but, by prescription, one
parish may be bound to repair the way in another parish.'
The dictum in question, therefore," said Cockburn, C. J.,
" if it ever fell from the C. J., which, looking to the looseness
of the report, may be thought doubtful, was altogether
unnecessary to the decision of the case, and does not seem
an authority to justify the holding that such a liability can
exist." And it was held as clear, " that if a parish can be
liable to repair the roads in another pai'ish, such liability
must date beyond the time of legal memory." Where there
are several townships in one parish, see R. v. Ecclesfield, 1 B.
& Aid. 348.

A parish which is bound to repair the highways cannot be
discharged of its liability by any agreement with others :
R. V. Liverpool, 3 East, 86. Nor where the burthen is
transferred to commissioners under Act of Parliament : R. v.
St. George's, Hanover Square, 3 Camp. 222 ; and see R. v.
Nethert'hong, 2 B. & Aid. 179.

Under the Public Health Act, 1875, s. 145, the inhabi-
tants of one district are not to be liable for the making or
repairing roads or highways without their district.

By sec. 146, the Urban authority may make or adopt new
roads which on completion, may become public highways
repairable by the inhabitants.

All expenses incurred by any highway board in maintain-
ing and keeping in repair the highways of each parish within
their district, and all other expenses legally incurred by such
board shall, notwithstanding anything contained in the High-
way Acts after the 25th March, 1879, be deemed to have
been incurred for the common use or benefit of the several
parishes w^ithin their district, and shall be charged on the
district fund : provided, that if a highway board think it
just, by reason of natural differences of soil or locality, or
other exceptional circumstances, that any parish or parishes

HIGHWAYS. 295

within their district should bear the expenses of maintaining
its or their own highways, they may (with the approval of
the county authority or authorities of the county or counties
within which their district or any part thereof is situate)
divide their district into two or more parts, and charge ex-
chisively, on each of such parts, the expenses payable by such
highway board in respect of maintaining and keeping in
repair the highways situate in each such part : so, neverthe-
less, that each such part shall consist of one or more high-
way parish or highway parishes : Act 1878, s. 7.

Where the highway district is situate in more than one Maintc-
county, the provisions of the Act 1878, with respect to the nance of
expenses of the maintenance of mmn roads, shall apply as if j.^|^"j^'"
the portion of such district situate in each county were a ^herc high-
separate highway district in that county : Act 1878, s. 19. way district

Under sec. 32, Act 1864, any expenses incurred by the '" more
highway board for the common use or benefit of the several * '^"^^"^
parishes within the district, will be annually charged on the " '
district fund, and charged on the several highway parishes pf^ff"h\Tay
within the district in proportion to the rateable value of the board for
property in each parish ; but the expenses of maintaining common
and keeping in repair the highways of each highway parish "^e ot
within the district, and all other expenses legally payable by ^^^j^j'^^.g
the highway board in relation to such parish, including any
sums of money that would have been payable out of the
highway rates of such parish if the same had not been part
of a highway district, except such expenses as are by the
Act (1864) authorised to be charged to the district fund,
shall be a separate charge on each parish. As to the liability Non-lia-
of the inhabitants of a hamlet the owners and occupiers in bility of a
which had never repaired any highways, having no public tamlet.
roads which could be repaired, being liable to contribute to
the repairs of highways out of its limits, see B. v. Bollett,
L. R. 10 Q. B. 469 ; 44 L. J. M. C. 190; eo nam. Rollett v.
Corringham, 32 L. T. 769.

Costs of an indictment for the obstruction of a highway Costs of
are properly chargeable to the parish where the highway lay : '"^li^^tment
if. V. 7/mtf., 6 B. & S. 5-8. , , „ ,S™1«

Surveyor s charges made m his accounts which are illegal a highway,
under sec. 46 of the same Act, cannot be allowed : Barton \\[q„-a\
V. Piggott, 44 L. J. M. C. 5 ; L. R. 10 Q. B. 86. Nor can the diarges not
expenses incurred in opposing a bill in Parliament be allowed, allowed,
although the bill affected some of the parishes in the district,
and the opposition might be successful : R. v. The Kingshridge
Highway Board, 18 L. T. 554; 32 J. P. 372.

296

HIGHWAYS.

authority
wlien to
be matle
lip.

.Apjjeal on

Assess-
ment for
rate.

Accounts of The accounts of the highway authority are now to be
highway made up ill each year to the 25th March, and audited by the
Local Government Board auditor of accounts relating to the
relief of the poor ; and any pei^son aggrieved by his decision
will liave the same rights and remedies as in the case of the
audit of poor law accounts, Act 1878, sec. 9 ; 38 & 39 Vict,
c. 55, s. 247.

There is an appeal to the Local Government Board on any
accounts to disiillowance, reduction, or surcharge, or to the High Court
L. G. B. \^y nieans of a writ of certiorari ; 38 & 39 Vict. c. 55, s. 247,
sub-ss. 6, 8 ; see also 27 & 28 Vict. c. 101, ss. 32, 35, 36;
72. V. Halifax, 10 L. J. M. C. 81 ; K v. Sanders, 3 E. & B.
778 ; B. v.* Caltkorpe, 4 B. & S. 228 ; B. v. Knott, 15 L. T.
291 : see also Barton v. Biggott, L. R. 10 Q. B. 86 (or).

The rateable value of the property in each parish will be
in accordance with the valuation list or other estimate in
force in each parish for the purposes of the poor-rate ; or, if
no valuation list or estimate be in force, then in such manner
as may be determined by the justices in petty sessions, sub-
ject to an appeal, by any person aggrieved, to the next
geneml or quarter sessions: Act 1864, s. 32. (See 25 & 26
Vict. c. 103 ; 27 ck 28 Vict. c. 39.)

The amount of the assessment should appear on the face
of the rate, so that the ratepayers may see how much is for
the maintenance of the poor, and how much for the repairs
of the highways ; and why one occupier is charged with the
agi>:regate, and another, who is liable to one only, with that
one. By the creation of highway districts the liability to
highway maintenance has not been altered, but only the
area of management extended, equalising the cost of repair,
and simplifying the machinery for providing the necessary
funds; and where, under sec. 33, Act 1835, lands would
have been exempted from the maintenance of the highway
they are still exempted, although the poor-rate be substi-
tuted for the highway rate : B. v. Heathy 35 L. J. M. C.
113 ; L. R. 1 Q. B. 218; 7 B. & S. 285.
Publication The waywardens wQl levy by a separate rate, but, before
of rate to j^ ^^,j]j i^g payable, it must have been published (6) in the
made manner in which rates for the relief of the poor are required

to be published. (See 1 Vict. c. 45, s. 2.)

FOITO of
rate.

Highway
district
extends
only area.

(«) A case may be stated under
22 & 28 Vict. c. 43, as in Ton-mfrid
V. lisad, 30 L. J. M. C. 223.
There is still the appeal to
quarter sessions.

(?y) See 45 & 46 Vict. c. 20, li,
V. Dyott, pofit, p. 316. n. ; publi-
cation to be in some conspicuous
place where there is uo parish
chiux'h, p. 302, n.

HIGHWAYS. 297

The rate is only to be published ; it will not be required
to be " allowed " by the justices. By 5 & 6 Will. 4, c. 50,
s. 27, a highway rate would have to be allowed by two
justices, as well as published. It is not to exceed ten pence
in the pound, or two-and-six pence on the whole year, except
with consent of four-fifths of the ratepayers.

Where the precept is addressed to the overseers the sum The pie-
will be payable out of the poor-rate, or out of monies appli- ^^P**
cable to the relief of the poor : Act 1864, s. 33.

The mode of obtaining payment from the several highway Payment of
parishes is regulated by s. 33, Act 1864, and is by precept ^^tes.
addressed to the wayw^ardens or overseers, as directed by
that section. See Act 1878, s. 5.

If any person feels himself aggrieved by any rate, levied Appeal to
by any waywarden under s. 33, Act 1864, under a precept special
from a highway board on the ground of incorrectness in the sessions.
valuation of any property included in the rate, or of the
inequality or unfairness of the sum charged on any persons
therein, he may appeal to the justices in special sessions, as
provided by 6 & 7 Will. 4, c. 96, ss. 6 & 7 : Act 1864, s. 37.

By s. 38, Act 1864, where any w^ay warden of a highway Appeal to
parish of a district, or any ratepayer of such parish, feels quarter
aggrieved in respect of the following matters — aTi Sfi-i

1. In respect of any order of the highway board for the g gg
repair of any highway in his parish, on the ground that such
highway is not legally repairable by the parish, or in respect

of any other order of the board, on the ground that the
matter to which such order relates is one in regard to which
the board have no jurisdiction to make the order ;

2. In respect of any item of expense charged to the sepa-
rate account of his parish, on the ground that such item of
expense has not in fact been incurred, or has been incurred
in respect of a matter upon which the board have no autho-
rity by law to make any expenditure whatever ;

3. In respect of any item of expenditure charged to the
district fund, on the ground that such item of expense has
not in fact been incurred, or has been incurred in respect of
a matter upon which the board have no authority to make
any expenditure whatever. See Barton v. Piggott, 44 L. J.
M. C. 5 ; 10 L. R. Q. B. 86 ; 31 L. T. 404 ;

4. In respect of the contribution required to be made by
each parish to the district fund, on the ground that such
amount, when compared with the contribution of other
parishes in the district, is not according to the proportion
required by the Act (see sec. 32) : — he may, upon complying

o 3

298 HIGHWAYS.

"vsitli the conditions mentioned in sec. 39, appeal to the
geiieral or quarter sessions having jurisdiction in tiie district ;
out no appeal shall be heard in respect of any exercise of the
discretion of the board in matters within their discretion ;
and no appeal shall be had except in respect of mattei's and
upon the grounds hereinbefore mentioned.
Conditions No appeal shall be entertained by any court of general or
of appeal, quarter sessions in pursuance of the Act (1864) unless the
Act 18(34, tollowing conditions have been complied with : —
^- ^^' 1. Notice of the intention to appeal must be served by

the appellant on the clerk to the highway board, in tlie case
of an appeal against an order, within two months after the
order; and in case of an appeal in respect of any item of
expense or contribution, within one month after the statement
of the account of the board has been sent to each member of
the board as hereinbefore mentioned. (See sec. 36, sub-sec. 4.)
2. The notice must state the matter appealed against,
and the ground of the appeal.
Highway On the receipt of the notice of appeal, the board may

board may gei-ye a counter notice on the appellant, requiring him to
j.^^g appear in person, or by his agent, at the next meeting of the

board, and support his appeal. On hearing the appellant,
the board may rectify the matter complained of, and if they
do so to a reasonable extent, and tender to the appellant a
reasonable sum for the costs of his attendance, the appellant
Appeal may cannot proceed further with his appeal. In any other case
proceed. the appellant ■ may proceed with his appeal, and the reason-
able costs of his attendance on the board shall be deemed
part of the costs of the appeal.
Arbitra- After notice of appeal has been given, where the matters

tion. Act in dispute are questions of account wliich cannot be satis-
1864,8.40. factorily tried by the Court, the Court may order the appeal
to be referred to arbitration: sec. 40, Act 1864. And the
provisions of the Common Law Procedure Act, 1854 (17 &
18 Vict. c. 125, ss. 3 — 17), relating to compulsory references,
are extended to ai'bitrations directed by the quarter sessions ;
and the word "Court" in that Act is to include the court of
quarter sessions : sec. 41, Act 1864.
Proceed- If upon the hearing of the appeal it appears to the Court

ings on that the question in dispute involves an inquiry as to whether
appeal. ^ ^.^.^^ jg ^j. jg ^^^^t a highway repairable by the public, or an
inquiry as to any other important matter of fact, the Court
may either themselves decide such question, or may impanel
.Tury to a jury of twelve disinterested men out of the persons returned
dec.de to serve as jurymen at such quarter sessions, and submit to

HIGHWAYS. 299

such jury such questions in relation to the matters of fact in liability
dispute as the Court think fit ; and the verdict of such jury, to repair,
after hearing the evidence adduced, shall be conclusive as to
the questions submitted to them.

The questions so submitted shall be in the form, and shall Issue as a
be tried as nearly as may be in the manner, in which feigned feigned
issues are ordinarily tried ; and the Court shall decide the
parties to be plaintiffs and defendants in such trials.

Subject as aforesaid, the Court may, upon the hearing of Judgment,
any appeal under the Act, confirm, reverse, or modify any
order of the highway board, or rectify any account appealed
against (sec. 42, Act 1864).

Where places are situate in different counties, and united Appeals
in one highway district, in matters relating to appeals to ^S'""'^*
quarter sessions against accounts, they will be subject to the ^y^gj-g
jurisdiction of the county in which the district is situate to places
which such places shall have been united by any provisional in different
and final order or orders, or to which after the passing of the counties.
Act (1864) any such district shall be declared to be subject
by the orders constituting the same, in the same manner as
if all such places were situate in such county. This section
is limited to appeals against accounts (sec. 44, Act 1864).

If any person should think himself aggrieved {a) by any General
rate made under or in pursuance of this Act (1835) (all the po^ei" of
Acts are to be now read as one Act), or by any order, con- ^^ ^^-^r^
viction, judgment, or determination made, or by any matter s. 105.
or thing done, by any justice or other person in pursuance of
the Act, and for which no particular remedy for relief had
been appointed, such person may appeal to the next (6)
general or quarter sessions of the peace to be held for the
county, (fee, wherein the cause of such complaint shall arise,
such appellant first giving to the surveyor or su.rveyors, or
to such justice or other person by whose act such person
shall think himself aggrieved, notice in writing of his inten-
tion to bring such appeal, together with a statement of the
grounds of such appeal, within fourteen days after such rate
shall be made, or cause of complaint shall have arisen ; and
within four days after such notice entering into a recogniz-
ance before a justice, with two sufficient sureties, to try such

(rt) The party appealing must peal may be made against the

show some special and peculiar appointment of a surveyor : II .

injury ; and the notice must v. St. Albans, 3 B. & C. 698.
state he is injured and aggrieved : (J) "Next practicable" ses-

see the cases cited under tit. sions : see Sum. Juris. Act, 1879,

"Appeal," ante, p. 113. An ap- s. 23.

300

HIGHWAYS.

Jurisdic-
tion of
justices.

Procedure
on appeal
against a
rate. Sec,
106, Act
1835, in-
corporates
41 Geo. 3.

appeal, and abide the order of and pay such costs as may be
awarded by the justices, and such justices shall finally
determine the matter of such appeal ; and shall, according to
their discretion, award costs. Power is given to the Court
to respite the appeal. The appellant will not be heard on
his appeal unless such notice and statement shall have been
given, nor be allowed to go into any evidence on any other
grounds of appeal than those set forth in such statement.

By Act 1862, sec. 38, '* No justice of the peace shall act
as such in any matter in which he has already acted as a
member of the highway board, and in which the decision of
such board is appealed against." But by Act 1864, sec. 46,
no justice shall be disabled from acting as such merely on the
ground that he is hy virtue of his ojjice a member of any high-
way board complaining, interested, or concerned in such
matter, or has acted (a) as such at any meeting of such board
(see also sec, 17, Act 1864; and see antej Title, "Members
of the Court.")

By sec. 106 in all cases of appeal against the highway rate
or assessment made in pursuance of the Act 1835, the
several provisions in 41 Geo. 3, c, 23, an Act for the better
collection of the poor-rate, will be applicable thereto as if the
same had been, with respect to such appeals, repeated and
re-enacted.

In Mr. Prentice's edition of Pratt on Highways is the
following summary of those provisions : —

Under section 1. On appeal the sessions may amend the
rate without quashing it, or may quash the rate ; but the
sum assessed may, notwithstanding, be levied and taken as
payment on account of the next effective rate.

Section 2. Notice of appeal is not to prevent a distress
being made for the recovery of the rate, provided the sum
assessed be not greater than that assessed in the last effec-
tive rate.

Section 3. The quarter sessions having ordered the rate to
be quashed, may order the sum charged on any person not
to be paid, and may stop proceedings for the recovery thereof.

Section 4. Notice of appeal is to be given to the church-
wardens and overseers of the poor.

Section 5. Appeals may be decided, if the parties consent,
although no notice be given.

(a') A court was held impro-
perly constituted where one of
the justices present had appeared
by counsel to oppose the order,

and was a member of the High-
way Board : R, v. Cumberland
JJ., 42 J. P. 361.

HIGHWAYS. SOI

Section 6. Persons appealing against the rate shall give
notice not only to the churchwardens, <fec., but also to the
persons interested, &c.

Section 7. The rate shall be recoverable as allowed by the
quarter sessions.

Section 8. If on appeal the name of any person be struck
out, or any sum lowered, and it appear that money has been
improperly paid, the quarter sessions may order the money to
be repaid.

By sec. 107 rates are not to be quashed for want of form. Rate not to
or removed by certiorari. Under sec. 108 the court may ^® quashed
grant a special case. ^^^^

Where any person or corporation is liable by reason of any ^ ,.'
tenure of lands or otherwise to repair any highway situate in taken
a highway district, such person or corporation (or the highway away,
board, see sec. 24, Act 1864), may apply to any justice of the Highways
peace for the purpose of making such highway, a highway to repairable
be repaired and maintained by the parish in which the same ^'^^^^
is situate ; and such justice shall thereupon issue summonses jj^^y be
requiring the w^aywarden of such parish, the district surveyor, made re-
and the party so liable to repair such highway, to appear pairable by
before two or more justices in petty sessions assembled ; and *".® *^iS'
the justices at such petty sessions shall proceed to examine
and determine the matter ; and shall, if they think fit, make
an order under their hands that such highway shall thereafter
be a highway to be repaired and maintained by the parish ;
and shall in such order fix a certain sum to be paid by such
person or corporation to the highway board of the district in
full discharge of all claims thereafter in respect of the repair
and maintenance of such highway ; Act 1862, s. 35.

And any person aggrieved by any order of justices made Appeal on
in pursuance of this section may appeal to a court of gjeneral sec 35,
or quarter sessions holden within four months from the date ^ '
of such order ; but no such appeal shall be entertained unless
the appellant has given to the other party to the case a
notice in writing of such appeal, and of the matter thereof,
within fourteen days after such order, and seven days at the
least before such sessions, and has entered into a recognizance,
with two sufficient sureties, before a justice of the peace, con-
ditioned to appear at the sessions and to try such appeal, and
to. abide the judgment of the court thereupon, and to pay
such costs as may be by the court awarded. And upon such
notice being given, and such recognizance being entered
into, the court at such sessions shall hear and determine
the matter of the appeal, and shall make such order thereon,

302

HIGHWAYS.

Result of
order.

Cost of
appeal.

Highway
board may
borrow
money.

with or without costs to either party, as to the court may
seem meet.

From and after the making of such order by the justices,
or by the court on appeal, as the case may require, such
highway shall be repaired in like manner and at the like
expense as highways which a parish is liable to repair ; Act
1862, sec. 35.

If the appellant is successful the costs shall, unless the
court otherwise orders, be paid by the board, and shall be
charged to the parishes within the jurisdiction of the board,
other than the parish to which the appellant belongs, in the
same proportions in which such parishes contribute to the
common fund of the board.

If the appellant is ?<;? successful the board, if the loaywarden
be the appellant, may charge the costs of the appeal to the
parish in which the appellant waywarden belongs in the same
manner as if they were expenses incurred in repairing the
roads in such parish, and may levy the sum accordingly, and
may carry the sum so levied to the account of the several
parishes within the jurisdiction of the board, other than the
parish to Avhich the appellant waywarden belongs, in the
same manner as if they were expenses contributed by such
parishes to the common fund of the board ; but if some rate-
payer^ other than the waywarden, is the appellant, the court
may order the costs of the appeal to be paid by such
appellant ; and such costs shall be recoverable in the same
manner as a penalty is recoverable under the Highway Act,
1862 (sec. 47) ; Act 1864, sec. 43.

Under sec. 47, Act 1864, the highway board is empowered,
with the approval of the justices in general or quarter
sessions, to borrow money for the purpose of making improve-
ments in the highways within their jurisdiction.

Previously to applying for the approval of the sessions an
estimate of the expense must be made, and two months'
notice is to be given of the intention to make such applica-
tion ; (1) by transmitting a copy of the notice to the clerk of
the peace for the cou^ity or division ; (2) by placing a copy
of each notice for three successive Sundays on the church
doors of every church (a) of the parish or parishes on behalf
of which such works are to be done ; or, in case of any place
not having a church, in some conspicuous position in such
place. See 45 & 46 Vict. c. 20 ; E. v. Dyott, 51 L. J. M. C.
104(a).

(a) This refers to the Estab-
lished Church : Ormerod v. Chad-

n-icTi, 16 M. & W. 367 ; Ex parte
Warhlington, 18 Jur. 494.

HIGHWAYS. 303

Upon the hearing the application any person or persons Any person
may oppose the approval of the justices being given, and the may oppose,
justices may give or withhold their approval, with or without
modification, as they thinli just ; Act 1864, s. 47.

All monies so borrowed will be a first charge on the district Monies
fund ; Act 1878, s. 8, amending Act 1864, s. 47, which made ""^^^^^^^ "''
the charge on the highway rate. iyxvA.

The improvements of highways are defined to be : — Improve-

1. The conversion of a road that has not been stoned into ments.
a stoned road.

2. The widening a road, the cutting off the corners in any
road where land is required to be purchased for that purpose,
the levelling roads, the making any new road, the building
or enlarging bridges.

3. The doing of any work in respect of highways beyond
ordinary repairs essential to placing any existing highway in
a proper state of repair.

By 35 & 36 Vict. c. 85, s. 15, the abolition of turnpike Abolition
tolls is deemed to be an " improvement " within the above of turnpike
section, and each parish will contribute towards the money ^^"^^^ ^"^
borrowed for such purpose in the same proportion as it con- ^n^^^^"
tributes to the district fund.

Section 13. The Highways and Locomotives Amendment Turnpike
Act, 1878, enacts that where between December 31, 1870, roads
and the date of the Act (16th August, 1878) any turnpike becoming
road ceased to be a turnpike road, and any road which, being "^^^^ roads,
at the time of the passing of the Act a turnpike road, shall
be deemed to be a main road ; and one half of the expenses
incurred from the 29th September, 1878, by the highway
authority in the maintenance of such road shall, as to every
part thereof which is within the limits of any highway area,
be paid to the highway authority of such area by the county
authority of the county in which such road is situate, out of
the county rate, &c. See ante^ p. 293.

The "road " here meant is any portion of a road as well Need not
as the whole road ; and, therefore, if any such portion ceases ^^ *^e
to be a turnpike road, it shall be deemed to be a main road. ^^^}^
The statute does not say if a road ceases to be subject to a main road,
turnpike trust it is to be a main road. The expression
" cease " in the enactment does not mean the expiration of
the trust. So that where a portion of a turnpike road is
within the area of a borough, and is repaired by the borough Part within
authority, and the power to take tolls in respect of it is a- borough,
gone, such portion ceases to be a turnpike road, and becomes
a main road, and sec. 1 3 comes into operation ; Rochdale

304<

HIGHWAYS.

Drift ways

becoming

highways.

Discon-
tinuance
of un-
necessary
highways.

Notice of
holding
court to
hear ob-
jections.

Persons
may object
to order
before the
Court of
Summary
Jurisdic-
tion.

The notice,
how given.

Corporation y. Lancashire JJ., 8 Q. B. D. 12 ; 50 L. J. M. C.

97.

Where the inhabitants of any parish (see sec. 144 Public
Health Act, 1875) are desirous of undertaking the repair of
any driftway (a way for the pubHc on foot or horse) or any
private carriage or occupation road within their parish, at the
request of the vestry (now the local authority, sec. 144,
Public Health Act, 1875), and the consent in writing of the
owner and occupier of every part thereof, the district surveyor
may apply to the justices in petty sessions to declare such
driftway to be a public highway, to be repaired at the
expense of the parish, and the justices may make their
declaration accordingly; Act 1862, sec. 36. [Co. Litt. 56 a.]

Under the Highway Act, 1878, sec. 24, where any
" authority " liable to keep any highway in repair is of
opinion that so much of the highway as lies within any
parish situate in a petty sessional division is unnecessary for
public use, and therefore ought not to be maintained at the
public expense, such authority (referred to as " the applicant
authority") may apply to a court oi summary jurisdiction of
such division to view by two or more justices, being members
of the Court, the highway to which such application relates,
and on such view being had, if the court of summary juris-
diction is of opinion that the application ought to be
proceeded with, it shall by notice in writing to the owners
or reputed owners and occupiers of all lands abutting upon
such highway, and by public notice, appoint a time and
place, not earlier than one month from the date of such
notice, at which it will be prepared to hear all persons
objecting to such highway being declared unnecessary for
public use, and not repairable at the expense of the public.

On the day and at the place appointed all persons object-
ting to such an order being made will be heard by the
Court, and the Court will make the order either dismissing
the application, or declaring that such highway is unneces-
sary for public use, and that it ought not to be repaired at
the public expense ; p,nd upon the making such order the
repairing such highway will cease to be defrayed out of the
pul)lic rate.

The public notice of the time and place appointed for
hearing a case under this section must be given by the
applicant authority as follows : —

(1). By advertising a notice of the time and place ap-
pointed for the hearing, and the object thereof, with a

HIGHWAYS. 305

description of the highway to which it refers in some local
newspaper circulating in the district in which such highway
is situate once at least in each of the four weeks preceding
the hearing ; and

(2). By causing a copy of such notice to be affixed, at least
fourteen days before the hearing, to the principal doors of
every church and chapel in the parish in which such high-
way is situate, or in some conspicuous position near such
highway. And the application will not be entertained by
the Court until the fact of such public notice having been
given is proved to its satisfaction.

After the order has been made, any person interested in On change
the maintenance of the highway, after one month's notice in of circum-
writing to the applicant authority, if it appears to the court jj.^^uj*jjL ^^
of quarter sessions that from any change of circumstances repair the
since the time of the making the order such highway has road may
become of public use, and ought to be repaired at the pubUc be restored.
expense, the court of quarter sessions may direct that the
liability of such highway to be maintained at the public
expense shall revive, and from thence the highway will
be repairable by the applicant authority ; and the Court
may order the costs and expenses of and incident to such
application to be paid as they may see fit: Act 1878,
sec. 24.

Any order of a court of summary jurisdiction under this Appeal to
section will be deemed to be an order from which an appeal ^^^ quarter
lies to a court of quarter sessions : Act 1878, sec. 24. This «®^«^<^"^'
enactment will clear up all doubts as to the right of appeal,
and was probably inserted in consequence of the doubts
expressed by Hannen, J., in R. v. Surrey JJ., 39 L. J. M. C.
49 ; L. R. 5 Q. B. 87, on the effect of the enactment in Act
1864, sec. 21, that upon the justices, on the request of the
highway board, considering any hiohway unnecessary, " the
like proceedings shall be had as where application is made
under the Highway Act, 1835, to procure the stopping-up,
&c., a highway."

If any party thinks himself aggrieved by any conviction or A-ppeal
order made by any court of summary jurisdiction on deter- u*^^^^ a +
mining any information or complaint under this Act, the 1878.
party so aggrieved may appeal (see also sec. 32, Sum. Juris.
Act, 1879, post) therefrom subject to the conditions and
regulations following ; —

1. The appeal shall be made to the next practicable court
of quarter sessions for the county or place where the decision
appealed from w^as given, holden not less than twenty-one

306 HIGHWAYS.

days after the decision of the court from which the appeal is
made ; and

2. The appellant shall, within ten days after the pro-
nouncing by the court of the decision appealed from, give
notice to the other party, and to the court of summary
jurisdiction (see Curtis v. Buss, infra, pp. 72, 133) of his in-
tention to appeal and of the ground thereof ; such notice of
appeal shall be in writing, signed by the person or persons
giving the same, or by his, her, or their soHcitor on his, her,
or their behalf; and,

3. The appellant shall, within three days after such notice,
enter into a recognizance before a justice of the peace, with
two sufficient sureties conditioned personally to try such
appeal, and abide the judgment of the court thereon, and
pay such costs as may be awarded, or give such other security
as the justices may allow ; and,

4. If in custody, the appellant may be discharged on his
recognizance or the security given.

5. The court of appeal may adjourn the appeal ; on the
hearing they may confirm, reverse, or modify the decision of
the court of summary jurisdiction ; or remit the case to
such court with their opinion thereon ; or make such other
order in the matter as the court thinks just: and if the
matter be remitted, the court of summary jurisdiction shall
rehear and decide the information or complaint in accord-
ance with the opinion of the court of appeal. The court
of appeal may make any order as to costs as it thinks
just.

Dedication Prior to the 20th March, 1836, the time at which the Act
of a high- 1835 came into operation, a highway could be fully dedicated
*^^' to the public by the owner allowing the public to pass and

repass for a series of years without let or hindrance, there
existing an intention on the part of the owner to dedicate the
highway, animus dedicandi, without any inteiTuption, Poole
v.- Huskimon, 11 M. & W. 827; Surrey Canal Go. y. Hall,
1 Man. & Gr. 392 ; E. v. Petrie, 4 E. & B. 737 ; R. v. East
Mark, 11 Q. B. 877. Permissive user, although the public
were allowed to pass, was not sufficient, Woodyer v. Haddon,
5 Taunt. 12.5 ; Barraclough v. Johnson, 8 A. & E. 99. The
dedication should come from the owner of the fee : Wood v.
Veale, 5 B. & Aid. 454; R. v. Lloyd, 1 Camp. 260; Jarvis
V. Dean, 3 Bing. 447; Baxter v. Taylor, 1 Ner. & M. 13;
R. v. Barr, 4 Camp. 16. The question of dedication is
one for the jury: R. v. Horley, 8 L. T. 382; 27 J. P.
101.

HIGHWAYS. 307

Where a road is made or recognised (a) as public by Act
of Parliament, it is not necessary to further dedicate it, or
that it should be adopted by the parish : Ji. v. Lj/on, 5 D. &
R. 497 ; JR. v. Xords7ne7'ej 19 L. J. M. C. 221, in which case
Lord Campbell did not agree with, E. v. Mellor, 1 B. & Ad.
32, as to statute duty. A highway cannot be created by
statute unless the provisions creating it are strictly followed :
Cubit V. Maxse, L. K. 8 C. P. 704 ; 42 L. J. C. P. 278 ;
29 L. T. 244 ; 24 W. R. 789.

As to a partial dedication, see Roberts v. Kurr and Leth- Partial
bridge v. Winter, 1 Camp. 261, n. ; Stafford v. Coy7iey, 7 B. dedication.
«fe C. 257; IJildred v. Adamson, 25 J. P. 645; R. v. Leake,
5 B. & Ad. 469 ; R. v. Surrey JJ., 3 L. T. 308. Dedication Pre-exist-
niight be subject to a pre-existing right, or an interruption ^"» "gnts..
for a beneticial purpose, and for a limited tiiiiC ; see Elwood
V. Bulloch 6 Q. B. 383; Mcrrant v. Chamberlain, 6 H. & N. [^.^^ .
544 ; 30 L. J. Ex. 299 ; so the ploughing up a church foot- ^^rrrffrt/
path may be lawful : Mercer v. Woody ate, 39 L. J. M. C. 21 ; y. Ja<:obs,
Arnold V. Blaker, 40 L. J. Q. B. 185. 41 L. J.

Since the Act 1835 (20th March, 1836), to dedicate a ^- ^ 72.]
highway so as to render the parish bound to maintain and Dedication
repair it, proceedings must be taken und^r sec. 23 of that ^^^ ^^^ '
Act : R. V. Bunkinjield, 32 L. J. M. C. 235 ; 4 B. & S. 158 ;
and see Fawcett v. The York <^ N. M. Ry. (7o., 16 Q. B. 614.
Unless the highway be made public by statute (supra).

By sec. 23, Act 1835, no road or occupation way made by
and at the expense of any individual or private person, body
politic or corporate, nor any road already set out or to be
hereafter set out as a private driftway, pathway or horsepath
in any award under an Enclosure Act, shall be deemed (b) or
taken to be a highway which the inhabitants of any parish
shall be compellable or liable to repair, unless the person,
body politic or corporate, proposing to dedicate such highway
to the use of the public, shall give three months' previous
notice in writing to the surveyor of the parish (now the
Local Authority under the Public Health Act, 1875, sec. 144 ;
and see Highway Act, 1878, sees. 4, 5), of his intention to

(rt) A highway may be oxtin- Huberts v. Hunt, 15 Q. B. 17 ;

guished by implication under a see Rugby Charity v. Merry-

statute : see Yarmouth fhrjyora- weather, 11 East, 376 ; Woody er

Hon V. Siinmnn.'i, 10 Ch, D. 518 ; v. Hadden, 5 Taunt. 125. See

47 L. J. Ch. 792, Fry. J. infra, tit. " Commons Inclosure

(/>) "The words are not that Act;" and see Greeyiwich Boai'd

the road shall be no highway, but of Works v. Maud shy, L. R. 5

that it shall not be 'deemed ' to Q. B. 397 ; 39 L. J. Q. B. 205.
be a highway," per Wightmau :

308 HIGHWAYS.

dedicate such highway to the use of the public, describing
its situation and extent, and shall have made, or shall make,
the same in a substantial manner, and of the width required
by the Act (see sec. 80 ; every cart-way leading to any
market-town, twenty feet wide, and every horse-way, eight
feet wide), and to the satisfaction of the said surveyor (the
local authority), and of any two justices of the peace of the
division in which such highway is situate in petty sessions
assembled, who are required, on receiving notice from such
person or body politic or corporate to view the same, and to
certify that such highway has been made in a substantial
manner, and of the width required by the Act, at the
expense of the party requiring such view, which certificate
shall be enrolled at the quarter sessions (a) holden next after
the granting thereof; in such case, after the highway shall
have been used by the public, and duly repaired and kept in
repair by such person or body politic or corporate for the
space of twelve months, such highway shall for ever be
repairable by the parish in which it is situate.
Vestry was On the receipt of the notice by the local authority acting
to be called as the surveyors of the parish (P. H. A. 1875, s. 144), and
-—not so such authority, acting as the inhabitants in vestry (ib.), should
authority ^^^^^ ^^G highway not to be of sufficient utility to the
to act. inhabitants of the parish to justify its being kept in repair
at the expense of the parish, a justice of the peace, on the
application of the surveyor, shall summon the party pro-
posing to dedicate the highway to appear before the next
special sessions for the highways to be held for the divi-
sion in which the highway is situate, and the question as
to utility of such highway will then be determined at the
discretion of the justices.
Conditions The requirements of the statute are conditions precedent,
precedent, ^^^ cannot be dispensed with or waived (6).

Under the Public Health Act, 1848, ss. 69 and 70, where
a street within an urban authority had been sewered,
levelled, paved, flagged, metalled, channelled, and made
good, and provided with the proper means of lighting to the
satisfaction of the urban authority, the authority might
proceed to declare it a highway, repairable by the inhabi-
tants at large. 1'his was not matter for appeal. But those

(«) The sessionsfor the "limit." L. J. M. C. 4.5 ; 31 L. T. .58.5 ; 23

The non-enrolment of the order W, R. 165 ; Hirst v. Halifax

will not vitiate it. De Ponthieu Local Board, L. E. 6 Q. B. 181 ;

V. Penny feather, 5 Taunt. 634. 40 L. J. M. C. 43.

Q)) See R. v. Norfulk JJ., 44

HIGHWAYS. 309

requirements might well be called for before a local authority
took, into consideration the dedication of a highway under
sec. 23, Act 1835. See R. v. Dunkinjield, 4 B. & S. 158;
32 L. J. M. C. 230.

The appeal under sec. 105, Act 1835, is given to any Appeal
person thinking himself aggrieved by any rate made under ^^^"^^^?^'
the Act, or by any order, conviction, judgment or determi- ^ ' ^*
nation made,, or by any matter or thing done, by any justice
or other person in pursuance of the Act, and for which no
particular method of relief was appointed ; and such appeal
is to made to the justices at the next quarter sessions of the
peace, held for the county, &c., wherein the cause of such
complaint should arise ; such appellant first giving notice
to the surveyors, (now the local authority (a),) or to the
justice or other person by whose act the appellant might
think himself aggrieved, notice in writing of his intention
to bring such appeal, together with a statement of the
grounds of such appeal, within fourteen days atter such
rate shall have been made, or cause of complaint had
arisen ; and within four days after such notice entering into
his recognizance with two sureties to try the appeal, abide
the order of the Court, and pay such costs as might be
awarded. Power is given to the Court to award costs ; and
the decision is to be final. The appellant cannot be heard
without such notice ; nor will he be allowed to give evidence
on any grounds other than those of which notice had been
given (6).

Where a person is aggrieved by any determination of the
justices as to the utility of the highway under sec. 23 (supra,
p. 305) an appeal may be made to the next general or quarter
sessions under sec. 105 {sujyra) : R. v. Derbyshire JJ., 1 Ell.
B. ife Ell. 59 ; 27 L. J. M. C. 189.

By 5 & 6 Will. 4, c. 50, s. 82, it is enacted that, " where it Widening
shall appear upon the view of two justices of the peace that highways,
any highway is not of sufficient breath, and might be widened
and enlarged, such justices are empowered within their re-
spective divisions to order such highway to be widened and
enlarged in such manner as tiiey shall think fit, so that the

(«) Public Health Act, 1875, given as under the Sum. Juris.

s. 144. Act, 1879, ss. .31, 32. (8ee that

(/y) When a partr is convicted Act, post.) But on appealing

under this section the person by against a rate the surveyoi-s, or

whose act he is aggrieved is the Local Authority, are the parties

justice, or Court of Summary causing the grievance : see R. v.

Jurisdiction, and notice may be Bedfordshire, 11 A. & E. 134.

310 HIGHWAYS.

highway, when widened and enlarged, shall not exceed thirty
feet in breadth ; but neither of the powers will extend to the
pulling down any house or building (a), or to take aw'ay the
ground of any garden, lawn, yard, court, park, paddock,
planted walk, plantation or avenue to any house, or any
inclosed ground set apart for building ground or as a nursery
for trees ; and for the satisfaction of the person, body politic
or corporate seised or possessed of, or interested in their own
right or in trust for any other person, in the giound that
shall be laid into the highway respectively so to be widened
and enlarged, the surveyor, under the direction, and with
the approbation of the said justices in writing, shall and is
hereby empowered to make an agreement with him for the
recompense to be made for such ground, and for the making
such new ditches and fences as shall be necessary, according
and in proportion to their several and respective interests
therein, and also with any other person, body politic or
corporate, that may be injured by the widening and en-
larging such highway, for the satisfaction to be made to
him respectively as aforesaid ; and if the surveyor, under
the direction and with the approbation of the justices,
cannot agree with such person, body politic or corporate, or
if he cannot be found, or shall refuse to treat or take such
recompense or satisfaction as shall be offered to them re-
spectively by such surve^'or, then the justices of the peace,
at any general quarter sessions to be holden for the limit (6)
wherein such ground shall lie, upon certificate in writing
signed by the justices making such view as aforesaid of their
proceedings in the premises, and upon proof of fourteen
days' notice (c) in writing having been given by the surveyor
of such parish to the owner, occupier, or other person, body
politic or corporate interested in such ground, or to his
guardian, trustee, clerk or agent, signifying an intention to
apply to such quarter sessions for the purpose of taking
such ground, shall impannel a jury of twelve disinterested
men out of the persons returned to serve as juiymen at

' (rt) R. V. The Nervmarltet Ry. "limit " see ante, p. 286 et seq.
Co., 15 Q. B. 702 ; 4 New S. C. (<?) These conditions should

24:1; 19 L. J. M. C. 241. The appear on the inquisition to show

order of the court must be definite, jurisdiction: R. v. Bar/itlian'. 7

without any discretion to ])e exer- T. R. 3BH ; R. v. Noririch and

cised by the surveyor in the Walton Road,') A. k. K.'MVd ; the

carrying out the order. A high- person who should give the notice

way' board may widen a road : cannot take advantage of the

Act 1864, ss. 47, 48. defect : R. v. Sivansea Ilarhour,

(V) As to the meaning of 8 A. k. E. 439.

HIGHWAYS. 311

such quarter sessions, and the said jury shall, upon their
oaths, to the best of their judgment, assess the damages to
be given and recompense to be made to the owners and
others interested as aforesaid in the said ground for their
respective interests (a) as they shall think reasonable, not
exceeding forty years' purchase, for the clear yearly value of
the ground so laid out, and likewise such recompense as
they shall think reasonable for the making of new ditches
and fences on the side of the said highway that shall be so
widened and enlarged, and also satisfaction to any person,
body politic or corporate, that may be otherwise injured by
the widening and enlarging the said highways respectively,
and upon payment or tender of the money so to be awarded
and assessed to the person, body politic or corporate entitled
to receive the same, or leaving it in the hands of the clerk
of the peace of such liniit (h), in case such peison, body
politic or corporate cannot be found or shall refuse to accept
the same, for the use of the owner of or others interested in
the said ground, the interest of the said person, body politic
or corporate in the said ground shall be for ever divested
out of them ; and the said ground, after such agreement or
verdict as aforesaid, shall be esteemed and taken to be a
public highway to all intents and purposes whatsoever,
saving nevertheless to the owner of such ground all mines,
mineral and fossils lying under the same which can or may
be got without breaking the surface of the said highw^ay, and
also all timber and wood growing upon such ground to be
felled and taken by such owner within one month after such
order shall have been made, or in default thereof to be felled
by the said surveyor within the respective months aforesaid
(see sec. 66), and laid upon the land adjoining for the benefit
of the said owner ; and where there shall not appear suffi-
cient money in the hands of the surveyor for the purpose
aforesaid, then the said two justices in cases of agreement,
or the said court of quarter sessions after such verdict as
aforesaid, shall direct the surveyor to make, collect, and
levy an equal rate in the same manner as the rate by this
Act authorized to be made, and to pay the money to the
person, body politic or corporate so interested in such
manner as the said justices or court of quarter sessions
respectively shall (iirect and appoint ; and the money thereby
raised shall be employed and accounted for according to the

(^7) See note (ft) sitpra, R. v. (J) As to the meaning of

Bagshan\ and JL v. Xorwlch and "limit," see ante, p. 286 et seq.
W'altun Jioad.

12

HIGHWAYS.

Costs on
assessment
of value of
land taken.

Discon-
tinuing or
diverting,
&c., a
highway
under tlie
Inclo.sure
Acts.

Appeal.

Costs.

Diverting,

stopping
up, and
turning
highways.

The vestry

order and direction of the said justices or court of quarter
sessions respectively for and towards the purchasing the
land to widen and enlarge the said highway, and for making
the said ditches and fences, and also satisfaction for the
damages sustained thereby : provided that no such rate to
be made in any one j'ear shall exceed one-third part of the
rate by this Act authorized to be levied in addition to the
rate for the repair of the highways " (a).

If the jury give more recompense or damage than the
sum offered, then the costs and expenses attendmg the pro-
ceedings will be borne and paid by the surveyor out of the
monies in his hands, or to be assessed and levied by virtue
and under the powers of the Act. Bat if no more or less
than was offered, then, by the person, body politic or cor-
porate who shall have refused to accept the recompense,
and satisfaction so offered to him : Act 1835, s. 83.

As to the widening of highways under local and personal
Acts, see 25 &, 26 Vict. c. 61, s. 44, to which the provisions
of the Act 1835 are applicable.

As to the discontinuing, diverting, stopping up, or alter-
ing a public road by a valuer, under the Inclosure Acts,
see 8 & 9 Vict. c. 118, s. 62 ; and as to the appeal to the
quarter sessicais, see sees. 63, 64. Under sec. 63 the appeal
may be made at any time within four months after the Jint
Sunday on which tlie notice (6) to discontinue the highway
shall have been posted on the church door (a. p. 302, n.) ;
and notice (6) of the appeal must be given to the valuer,
together with a statement in writing of the ground of the
appeal ; otherwise the appellant will not be heard ; nor will
he be allowed to go into evidence on other grounds than
those stated in his notice. By sec. 64 the appeal will be
heard by a jury to try whether the road be necessary or not,
and the court will make the order in compliance with the
verdict. The costs to follow the event ; and the section
directs out of what funds the costs shall come on the part of
the valuer and inhabitants.

The power of s^^opping roads was unknown to the com-
mon law ; it is, therefore, required to be exercised in strict
conformity with the statute creating it. See jK. v. Milverton,
3 A. & K 841, 854.

By sec. 84 of the Act 1835, it is enacted that when the

(a) The above sec. 82 is framed,
on tec. 16 of 13 Geo. 3, c. 78, the
fonner Highway Act, ante, p.
288.

(i) As to the general provisions
regulating the notices, see sec.
162 of 8 lNc 9 Vict. c. 118.

HIGHWAYS. 318

inhabitants in vestry assembled (now the local authority or local
under sec. 144, Public Health Act, 1875) shall deem it authority
expedient that any highway should be stopped up, diverted, ^®^^"°S
or turned, either entirely, or reserving a bridle-way or foot- ^ hi<^hway.
way along the whole or any part or parts thereof, the chair-
man of such meeting (of the local authority) shall, by an
order in writing, direct the surveyor to apply to two justices
to view the same, and shall authorise him to pay all the
expenses attending such view, and the stopping up, divert-
ing, or turning such highway, either entirely, or subject to
such reservation as aforesaid, out of the moneys received by
him for the purposes of the Act : —

Provided, nevei*theless, that if any other party shall be ^^y other
desirous of stopping up, diverting, or turning any highway "^^P^^
as aforesaid, he shall, by a notice in writing, require the g^^ ° ^
surveyor to give notice [to the churchwardens to assemble highway,
the inhabitants in vestry, and to submit to them the wish of
such person, and if such inhabitants (a)] shall agree to the
proposal, the said surveyor (the local authority) shall apply
to the justices as last aforesaid for the purposes aforesaid ;
and in such case the expenses aforesaid shall be paid to such
surveyor by the said party, or be recoverable in the same
manner as any forfeiture is recoverable under the Act ; and
the surveyor is hereby required to make such application as
aforesaid.

Under the Public Health Act, 1875, s. 144, every urban Public
authority (that is, the town council in a borough ; the im- Health ^^
provement commissioners in an Improvement Act or local ^^\'}^^^'
government district, not being part of a borough ; or a local
board, having no part of the district within a borough, and J^thirif-
not being coincident in area with a borough or Improvement the sur- '
Act district), shall, wdthin their district, exclusively of every veyor, and
other person, be surveyors of highways, and have, exercise, ▼estry.
and be subject to aU the powers, duties, and liabilities of
surveyors of highways. And every urban authority shall
also have, exercise, and be subject to the powers, authorities,
duties, and liabilities which by the Highway Act, 1835, or
any Act amending the same, are vested in or given to the in-
habitants in vestry assembled of any parish within their
district.

All ministerial acts required by any Act of Parliament to Ministerial

(fl) This part of the section The notice will be given to the

within brackets is rendered local authority as the surveyors,

practicably inoperative by the and that authority will also act

Public Health Act, 1875, 8. 144. as the vestry (ib. sup.)

314

HIGHWAYS,

acts to be
done by
surveyor.

Urban
authority
iu position
of the
vestry.

Prelimi-
nary pro-
ceedings
must be
strictly
followed.

The cer-
tificate of
the jus-
tices.

be done by or to the surveyor of highways may be done by or
to the surveyor of the urban authority or by or to such other
person as they may appoint.

This section placing the urban authority in the same posi-
tion as the inhabitants assembled in vestry, materially alters
the preliminary proceedings required under sgc. 84 of Act
1835, above set out. And there is a still further material
alteration to be observed, that the " authority " is not only
to act as the vestry, but is also exclusively the surveyor of
the highways in the district. The result is, that the calling
a meeting of the vestry within the jurisdiction of the urban
authority is not now needed. And everything which would
or could be done by the vestry or the surveyor will now be
performed by the urban authority, and the proceedings be
much simplified. In the first instance the urban authority
may deem it expedient that a highway may be stopped up,
&c. ; or secondly, some "other party" may desire to stop up,
&c., a highway, and then his notice in writing will be addressed
to the urban authority, as the surveyors of the district, and will
then be submitted to that authority acting as the vestry,
and the requirements of the 85th section will then be pro-
ceeded with as directed.

These preliminary proceedings, as required by sec. 84,
must be strictly followed ; upon any failure, they may be
challenged on appeal {a) ; but inasmuch as they do not come
before the justices in the subsequent proceedings under sec.
85 when they make their " view," and no machinery is pro-
vided for the justices on granting their certificate to inquire
whether such preliminaries have in fact happened, they need
not be set out in the justices' certificate. It was for some
time considered (see Coleridge, J., judgment in H. v. Worcester-
shire JJ., 3 E. & B. 477; 23 L. J. M. C. 113) that it was
requisite to set out in the certificate all the preliminary matter
to show the jurisdiction of justices to act ; but it was ex-
plained by Blackburn, J., in B. v. Hervey, 44 L. J. M. C. 1 \
L. R. 10 Q. B. 46 (6), that the decision in R. v. Worcestershire^
and upon which reliance had been made, was a mere dictum

{d) See Davison v. Gill, 1 East
64 ; R. V. Surrey J J., 5 L. K.
Q. B. 87 ; 39 L. J. M. C. 49 ; see
also R. v. Sitrrey JJ., L. E. 5
Q. B. 456 ; 39 L. J. M. C. 145, in
which the proceedings were
quashed on certiorari for want of
compliance with the forms as to

notices under the Act. See also
Wright v. Frant, 32 L. J. M. C.
204 • R. V. Mih-erton, 5 A. & E.
p. 854 ; R. v. Sheppard, 3 B. &
A, 414. R. V. Surrey, post, p. 315.
Q)) S. C. Harvey v. The Beth-
nal Green Vestry, 39 J. P. 272.

HIGHWAYS. 315

of Coleridge, J., and not binding on the court, as not being
necessary for the determination of the case. The only point
in the case was that the certificate must set out ex facie all
that was necessary to give the justices jurisdiction in the
matter ; and every essential fact should appear on the cer-
tificate (Lord Denman in R. v. St. Cuthhert Wells, 5 B. & Aid.
939. Burns, J. of the Peace, Tit. Poor, 457). The justices
derive their jurisdiction from the application made by the
authority, acting as the surveyor, requiring them to view the
highway to be stopped up; no previous proceedings need
appear on the certificate.

R. V. Hervey was a case under the Metropolitan Acts con-
stituting the select vestries and district boards as superseding
the existing vestries, 18 & 19 Vict. c. 120, s. 8; 19 & 20
Vict. c. 112, s. 3, and creating them the surveyors of the
highways, 18 & 19 Vict. c. 120, s. 96; and which provision
has, by the Public Health Act, 1875, s. 144, been extended
to urban districts.

The justices, having been required to view the highway The view
proposed to be stopped up, &c., as directed by sec. 84, then 9^ the
by sec. 85, the following procedure will be followed : — ■'^?^^^^.

. . . quent pro-

1. When it shall appear upon such view of such two justices cedare to

of the peace made at the request of the surveyor stop up a
as aforesaid, that any public highway maybe diverted ^^^I^^^^'^^k
and turned («), either entirely or subject as aforesaid "^ ^^^" *
(sec. 84), so as to make the same nearer or more com-
modious to the public, and the owner (6) of the lands
or grounds through which such new highway so pro-
posed to be made, shall consent thereto by writing
under his hand ;

2. Or if it shall appear on such view that any public highway

is unnecessary ;

3. The justices shall direct the surveyor (or urban au-

thority) to affix a notice in the form or to the effect of
schedule (No. 19) (c) to this Act, annexed in legible

(jo) " Stopped up " is here omitted but not elsewhere in the section.
(J) "Owner ' includes also the "occupier," as defined in sec. 5,
Act 1835.

(c) No. 19 (5 & 6 Will. 4, c. 50, s. 85).

Form of Notice of Diverting, ^^c, Highway,

Notice is hereby given, that on the day of next applica-
tion will be made to his Majesty's justices of the peace assembled at
quarter sessions in and for the county of , at , for an order

P 2

316 HIGHWAYS.

characters, at the place and by the side of each
end of the said highway from whence the same is pro-
posed to be turned, diverted, or stopped up, either
entirely or subject as aforesaid ;

4. And also to insert the same notice in one newspaper

published or generally circulated in the county where
the highway so proposed to be diverted and turned or
stopped up, either entirely or subject as aforesaid (as
the case may be), shall lie, for four successive weeks
next after the said justices have viewed such public
highway ;

5. And to affix a like notice on the door of the church (a) of

every parish in which such highway so proposed to be
diverted, turned or stopped up, either entirely or
subject as aforesaid, or any part thereof, shall lie, on
four successive Sundays next after the making such
view ;

6. And the said several notices having been so published,

and proof thereof having been given to the satisfac-
tion of the said justices ;

7. And a plan having been delivered to them at the same

time, particularly describing the old and the proposed
new highway by metes, bounds and admeasurement
thereof, which plan shall be verified by some compe-
tent surveyor ;

8. The said justices shall proceed to certify under their

hands the fact of their having viewed the said high-

for (if the order he for turning, diverting and stopping vp, ^-c., here
to state it, and describe the road ordered to he turned, diverted and
stopped up ; if the order he for stopping vp a useless road here to
state it, and describe the road ordered to he stopped up), and that the
certificate of two justices having viewed the same, &c., with the plan
of the old and proposed new highway, will be lodged with the clerk
of the peace for the said county on the day of next.

A. B., ) Surveyor \or surveyors] of
C. D., &c. ) the parish of .

The notice must state what part will become unnecessary, and
should also state the termini : R. v, Horner, 2 B. & Ad. 150. And
where three roads join and a separate order is made as to each,
separate notices should be posted at the point of junction : R, v.
Surrey J J., L. R. 5 Q. B. 466 ; 39 L. J. M. C. 145.

(tf ) Meaning the Established Church ; see a. p. 301 n. ; where there
is no such church, the notice is to be put in some conspicuous place ;
45 & 46 Vic. c. 20, passed in consequence of R. v. JJyott, 51 L. J.
M. C. 104,

HIGHWAYS, 317

way as aforesaid, and that the proposed new highway
is nearer or more commodious to the pubhc, and if
nearer, the said certificate shall state the number of
yards or feet it is nearer, or if more commodious, the
reasons why it is so ; (See p. 317).

9. And if the highway is proposed to be stopped up as

unnecessary, either entirely or subject as aforesaid,
then the certificate shall state the reason why it is
unnecessary ;

10. And the said certificate of the said justices, together

with the proof and plan so laid before them as afore-
said, shall as soon as conveniently may be after the
making of the said certificate be lodged with the
clerk of the peace for the county in which the said
highway is situated ;

11. And shall {at the quarter sessions which shall be

holden for the limit (see p. 286 et seq.) vdthin which
the highway so diverted and turned or stopped up,
either entirely or subject as aforesaid, shall lie, next
after the expiration of four weeks from the day of the
said certificate of the said justices having been lodged
with the clerk of the peace as aforesaid) he read by
the said clerk of the peace in open court ; (See pp.
321, 322)

12. And the said certificate, together with the proof and

plan as aforesaid, as well as the consent in writing of
the owner of the land through which the new high-
way is proposed to be made, shall be enrolled by the
clerk of the peace amongst the records of the said
court of quarter sessions : —

1 3. Provided always, that any person whatever shall be at
liberty, at any time previous to the said quarter
sessions, to inspect the said certificate and plan so as
aforesaid lodged with the said clerk of the peace,
and to have a copy thereof on payment to the
clerk of the peace at the rate of sixpence per folio,
and a reasonable compensation for the copy of the
plan.

By sec, 86, where it is proposed to stop up or divert more Where
than one highway, which highways shall be deemed to be °^°^® ^^^'^
so connected together as that they cannot be separately ^^ -^^ " .
stopped up or diverted without interfering one with the posed to
other, it shall be lawful to include such different highways be stopped
in one order or certificate. "P-

318

mOHWAYS.

On appeal

part of

ceil-ificate

may be

confirmed

where

more than

one

highway

diverted.

Amend-
ment of the
certificate.

Strictness
as to form
of certifi-
cate.

The view
by JJ.

Tlie road
nearer or
more com-
modious.

And it is provided by the 87tli sec. that in the event of
any appeal (see sec. 91) being brought against the whole or
any part or parts of any order or certificate for diverting
more highways than one, it shall be lawful for the court to
decide upon the propriety of confirming the whole or any
part or parts of such order or certificate, without prejudice
to the remaining part or parts thereof

There appears to be no power in the court to amend the
certificate, unless there be an appeal. When there is no
appeal, if it appear on the face of the certificate that the
justices making it have acted within their jurisdiction, the
court has no power to refuse the enrolment : see sec. 91,
Act 1835 {%eepost, p. 320).

It is of essential importance that all the requirements of
sec. 85 should be accurately adhered to.

The '^view" of the justices must be on an actual joint inspec-
tion of the highway by the two justices, for this is the very
foundation of their jurisdiction after receiving the request
from the surveyors of the highways to make the view ; i?.
V. Downshire, 4 A. & E. 698 ; ii!. v. Worcestershire JJ., 8 B. &
C. 254; 28 L. J. M. C. 113; E. v. Kent, 10 B. & C. 477.
The "view" must also be made by them "together;" they
must jointly act on such " view;" Ji. v. Cambridgeshire J J.,
4 A. & E. 111. The statement on the certificate to the effect ;
" We, A., B., & C, justices, &c., assembled at, (fee, having upon
view found," has been held to sufficiently state that the justices
had viewed the highway together, and at the time w^hen the
order was made ; R. v. Cambridgeshire JJ., 4 Ad. & E. Ill ;
see also R. v. Milverton, 5 k. & E. 841. It is the better form
to state, " we having together and at the same time viewed,"
&c. It must appear on the order that, in fact, the conclu-
sion come to by the justices has been exclusively from their
joint view; JR. v. Jones, 5 Jur. 364; 12 Ad. & Ell. 684:
not from inquiries made of other persons ; R. v. Wallace, 4
Q. B. D. 641 ; 40 L. T. 518.

The finding that the diversion or turning the highway will
be "nearer or mors commodious" may be in the alternative,
secundum allegata et probata in the certificate of the justices ;
R. V. Phillips, L. R. 1 Q. B. 648-; 35 L. J. M. C. 217; over-
ruling R. v. Shiles, 1 Q. B. 919; 10 L. J. M. C. 157; in
which it was eiToneously held that the ^^ or" should be read
as "and." See also a similar point under the Public Health
Acts, as held in R. v. Phillips ; Alalton Board of Health v.
Malton Manure Co., 4 Ex. D. 302 ; 40 L. T. 755 ; Gaskell v.
Bayley, 30 L, T. 516 Q. B. ; Brown y. Rimell, 37 L. J. M. C.

HIGHWAYS. 319

65 ; Draper v. Spearing, 30 L. J. M. C. 225 ; see also
WHfjht V. Frant, 32 L. J. M. C. 204.

A certificate stating that the old highway to be stopped up
will be unnecessary when the proposed alterations are com-
pleted is good; R. v. Phillips, L. R. 1 Q. B. 648; 35 L. J. M.
C. 217. But it seems unnecessary to state the fact; R. v.
Wallace, 4 Q. B. D. 641.

In a case R. v. MidgJey, 12 W. B. 954; 5 B. & H. 621, a
judgment is reported that a certificate, stating that the new
highway will be more commodious when the diversion is made,
is bad as certifying to a future state of things ; but in R. v.
Wallace {supra) it w^as held that it must not only appear on
the certificate that the proposed substitution would be more
commodious (where the new road is not nearer), but that the
justices should so certify as the result of their view ; and
that such statement was a necessary averment.

The length and breadth of the highways must be fully and Road to be
accurately stated, and correspond with the plan by " metes, described,
bounds, and admeasurements. " The roads on the plan should
be set out with distinctive colours, and the termini indicated
by letters, as well as drawing the plan by " compass " and
to scale. As to setting out the metes and bounds, see R.
V. Jones, 12 Ad. & E. 684; R. v. Kenyan, 6 B. & C. 640;
R.Y. Horner, 2 B. & Ad. 150 ; Davison v. Gill, 1 East 64 ;
R. V. Gasson, 3 D. & Ry. 40.

The justices cannot delegate to the surveyor a discretion Authority
as to the line of the new highway, it must be "found" by to justices
theiQ in their certificate ; R. v. The Newmarket Ry. Go., 15 ^^i ^ . \
Q. B. 702; 19L. J. M. C. 241. '^'^'^'''^•

(For form of the certificate see 35 L. J. M. C. 217 ; 44*6.). Forms.

When any such certificate shall have been so given as afore- Appeal
said, any person who may think that he would be injured or against the
aggrieved, if any such highway should be ordered to be enrolhug
diverted and turned or stopped up, either entirel}'- or subject L^gto'^ifi^
as aforesaid ; and such new highway set out and appropriated &c. a
in lieu thereof as aforesaid, or if any unnecessary highway highway,
should be ordered to be stopped up, may make his complaint
thereof by appeal to the said quarter sessions [that is, to the
quarter sessions holden/or the limit (sec. 85) within which the
highway shall lie] upon giving to the surveyor [now the local
authority, see sec. 144, Public Health Act, 1875] fourteen
days (or) [see R. v. Maule, 41 L. J. M C. 47 ; Baines' Act,

(a) Some recent text books the notice at ten days as in the
state the number of days to give Act 1835, and make the state-

320

HIGHWAYS.

A jury to
be em-
panelled.

Issue.

Verdict.

Confirma-
tion in
part of cer
titicate.

Costs.

sec. 1] notice in writing of such appeal, together with a
statement of the grounds of such appeal ; otherwise the
appellant cannot be heard on his appeal. The appellant
will be confined to his grounds of appeal as stated.

" In case of such appeal, the justices at the said quarter
sessions shall, for the purpose of determining whether the
proposed new highway is nearer or more commodious {a) to
the public, or whether the public highway so intended to be
stopped up, either entirely or subject as aforesaid (see sec.
84), is unnecessary, or whether the said party ajDpealing
would be injured or aggrieved, impanel a jury of twelve
disinterested men out of the persons returned to serve as
jurymen at such quarter sessions. And if, after hearing the
evidence produced before them, the jury shall return a
verdict that the proposed new highway is nearer or (a) more
commodious to the public, or that the public highway so
intended to be stopped up, either entirely or subject as afore-
said, is unnecessary, or that the party appealing would not
be injured or aggrieved, then the said court of quarter
sessions shall dismiss such appeal, and make the order herein
mentioned for diverting and turning and stopping up such
highw^ay either entirely, or subject as aforesaid, or for divert-
ing, turning, and stopping up of such old highway, and pur-
chasing the ground and soil for such new highway, or (a) for
stopping up such unnecessary highway, either entirely or
subject as aforesaid. But if the jury shall return a verdict
that the proposed new highway is not nearer or not more
commodious to the public, or that the highway so intended
to be stopped up, either entirely or subject as aforesaid, is
not unnecessary, or that the party appealing would be
injured or aggrieved, then the said court of quarter sessions
shall allow such appeal, and shall not make such order as
aforesaid;" sec. 89.

" In the event of any appeal being brought against the
whole or any part or parts of any order or certificate for
diverting more highways than one (sec. 86), it shall be lawful
for the court to decide upon the propriety of confirming the
whole or any part or parts of such order or certificate, with-
out prejudice to the remaining part or parts thereof ; " sec. 87.

The court is authorised ajid required to award to the party

ment on the authority of Syvift
V. Lancashire, 22 W. E. 76 Q. B. ;
S. C. JR. v. Lancashire, 27 L. J.
M. C. 161, although that case
was decided on another point.

(«) See B. V. Phillips, 35 L. J.
M. C. 217, overruling B. ▼.
Shiles, 1 Ad. & Ell. N. S. 919 ; 10
L. J. M. C. 157 {supra').

HIGHWAYS. 321

giving or receiving notice of appeal such costs and expenses
as shall be incurred in prosecuting or resisting such appeal,
whether the satue shall be tried or not, to be paid by the
surveyor or other party at whose instance the notice for
diverting, &c., was given; and in case the surveyor or such
other party do not appear, to award the costs of the appellant,
to be paid by the surveyor or other party ; to be recoverable
like any other penalties under the Act ; sec. 90.

Under sec. 90 it is imperative on the sessions to award
costs to the successful party; R. v. Yorkshire, 31 L. J. M. C,
271, 2 B. (fe S. 811 ; and the appeal need not have been tried ;
see Selhvood v. Mount, 1 Q. B. 726 ; R. v. Long^ ib. 740 ; Ux
parte Holloway, 1 Dowl. 26.

If no such appeal be made, or being made, shall be If no appeal
dismissed as aforesaid, then the justices at the said quarter certificate
sessions shall make an order to divert and turn or to stop soiled
up such highway either entirely or subject as aforesaid, or to
divert, turn, and stop up such old highway, and to purchase
the ground and soil for such new highway, or to stop up such
unnecessary highway either entirely or subject as aforesaid,
by such ways and means, and subject to such exceptions and
conditions in all respects as in this Act is mentioned in regard
to highways to be widened, and the proceedings thereupon
shall be binding and conclusive on all persons whomso-
ever {a) ; and the new highways so to be appropriated and
set out shall be and for ever after continue a public highway
to all intents and purposes whatsoever, but no old highway
(except in the case of stopping up of such useless highway
as herein is mentioned) shall be stopped until such new
highway shall be completed, and put into good condition and
repair, and so certified by two justices of the peace upon
view thereof, which certificate shall be returned to the clerk
of the peace, and by him enrolled amongst the records of
the court of quarter sessions next after such order as afore-
said shall have been made pursuant to the directions herein-
before contained ; sec. 91.

Even should there be no appeal it will be the duty of the Even if
sessions to see that the certificate has been made within the appeal
jurisdiction of their " limit " and as apparent on the face of ^^^'^'^"'^
the certificate ; R. v. Worcestershire J J., 3 E. & B. 477; 25 L. without

jurisdio-
(a) Subject to the JJ. acting three certificates after they had tion.
within jurisdiction : See R. v. been confirmed on appeal, the
Surrey, L. R. 5 Q. B. 466 ; 39 prcs^rib?;! notices not having
L. J. M. C. 145, where a eer- been complied with, to give
tiorari was obtained to quash jurisdiction.

p 3

322 HIGHWAYS.

J. M. C. 113 ; as explained by R. v. Hervey, 44 L. J. M. C. 1
{aiite^ p. 314.) But without an appeal the court has no power
to enquire into the merits of the question for the enrolment
of the certificate.

As to the party being aggrieved see Tit. " Appeal," ante,
p. 109.
The juris- The definition and explanation to be attached to the term
diction of *' limit," given supr^a, p. 286, and also as applied to the juris-
the quarter diction of the recorder as the sole iud^e in a court of quarter
under sessions for a city or borough (see ante, tit. " The Recorder

ss. 82, 85, and his Court^'), will lead us, without much difficulty, to the
and 88, application of the same term as it is used in sees. 82, 85
discussed, and 88 of the Act, 1835.

Act 1835, The language in sec. 82 is clear and distinct. If the sur-
sec. 82. veyor of the highways cannot agree on the compensation to
be made for the taking of land from an owner for the widen-
ing a highway, " then the justices of the peace at any gene-
ral quarter sessions to be holden for the limit wherein such
ground shall lie" . . "shall impanel a jury," &c., "to
assess the recompense ; " and upon payment of the money to
the person entitled to receive the same, or leaving it in the
hands of the clerk of the peace of such limit, the ground in
question will become divested out of the ow-ner.

It will be noticed that this section follows the words of
sec. 16 of the Act 13 Geo. 3, set out ante, p. 288.
Where Sec. 85, Act 1835, using similar language, gives directions

certificate where the " certificate " of the justices for the stopping
to be lead. ^^^ ^^^ ^ highway shall be read; and as plainly and clearly
enacts that it shall be read " at the quarter sessions to be
held for the limit ivithin which the highway so diverted, &c.,
shall "lie."
Dihtiaction The distinction between the old Highway Acts, 13 Geo. 3,
between c. 78, and 65 Geo. 3, c. 68, with the Act of 1835, is, that
Acts of ^\^Q ^^ order" under the old Acts for the diverting, &c., the
^?^^ 4^" highway was absolute in the first instance, as made by the
justices at special sessions, and there w^as then this regula-
tion : Under the 13 Geo. 3, c. 78, the original order was not
enrolled at the quarter sessions, but the certificate of the
completion of the alterations to be made was enrolled ; and
afterwards, under 55 Geo. 3, c. 68, s. 2, the order of the justices
in special sessions was directed to be returned to the clerk of
the peace in open court, at the quarter sessions to be holden
for the limit where the highway in question should lie, and
be then and there lodged with him. It was under that
provision that R. v. Gloucestershire, 7 A. & E. 689, was

HIGHWAYS. 3231

decided, and not under the 85th sec, Act 1835. See
ante, p. 9.

Without an appeal instituted under the old writ ad quod
damnum such court confirmed the order (a), and the clerk
of the peace for " the limit " enrolled it with the records of
the " said " court.

The Act of 1835 took away the power of the justices in
special sessions to make an order for diverting or stopping
up, &c., a highway as they could do under the Acts of Geo. 3
(supra); and provided, by sees. 84, 85, Act 1835, in lieu
thereof, that, the inhabitants in vestry being consulted in
the matter, and taking the initiative with the surveyor of
the highways acting under the direction of the vestry, and
on the application of the surveyor to two justices, entitled to
act within the jurisdiction in which the highway might lie,
to view such highway, and such justices having made their
view of the highway, and the notices, &c., having been pub-
lished as required by the sec. 85, the justices should make
their certificate that they had so viewed, and all conditions
had been complied with as the section directed ; and they
certify (not order) that the road might be diverted, &c., and
then the certificate should be lodged with the clerk of the
peace for the county in which such highway was situate ;
and " be read by the said clerk of the peace in open court,"
following the words of sec. 2 of 55 Geo. 3, c. 68.

To the question where is the certificate to be read 1 the
reply is to be made in the explicit words of the section ; ^^ at
the quarter sessions which shall be holden for the limit within
which the highway so diverted, &c., shall lie."

It is on this part of the sec. 85 that experienced practi- Doubts ex-

tioners at quarter sessions have raised the vexata questio pressed ou

and expressed doubts as to the sessions at which to proceed ^®^" ^^'

to divert or stop up a highway lying wholly within a city or ^yhere * '

• borough having a Recorder and Quarter Sessions. No such highway

question has arisen under sec. 82. in a

borough

(a) If the order had not been Coleridge, .1., said : — '* The jus- ^Q^y^ of

made at special sessions the court tices must hold their special ses- quarter

of sessions was bound to refuse sions for the highways within the gesaious

the confirmation of it, although limits for which they respec-

there was no appeal, It. v. Shep- tively act. If any made an order

j)ard, 3 B. & Aid. 4H ; so, if the for more, they would be acting

special sessions had not been out of the limits for which the

properly convened, R. v. Wor- sessions were held — there would

cestershire, 2 B, &; A. 228. In R. be no jurisdiction in such case."

V. Milverton, 6 A. & E. 841, See casQjfOst, p. 326.
846, decided on the old Acts,

324 HIGHWAYS.

In reference to the effect of the Municipal Corporation
Act, 1835, and the construction to be put upon the 85th sec,
in the Highway Act of the same session, we have to con-
sider the times at which these respective Acts came into
operation.

Prior to 33 Geo. 3, c. 13, no dates were put to the Acts,
and all Acts were considered to have been passed on the
last day of the session ; but by that Act the clerk of
Parliaments is directed to endorse on every Act of Parlia-
ment, ''the day, month and year when the same shall have
passed, and have received the Royal assent, and such indorse-
ment shall be taken to be a part of such Act, and be the
date of its commencement, where no other commencement
Pwjet V. shall be therein provided." In Paget v. Foley, 2 Bing. N. C.
Idey. ggj^ 1^ ^^g \^q\^ that where two statutes ai^e passed in the

same sessions, and are repugnant or contradictory to each
other, the later Act will prevail, and have the effect of repeal-
ing v. holly or pro tanto the previous statute ; and this con-
struction is to be taken as from the time when the Acts
shall have been made to come into operation.

In Paget v. Foley, the two Acts in question were the 3 & 4
Will. 4, c. 27 (sec. 42), and 3 & 4 Will. 4, c. 42 (sec. 3).
The first Act received the Royal assent on 24th July, 1833,
and was to come into force 1st January, 1834. The second
received the royal assent on 14th August, 1833, and came
into operation as from 1st June, 1833. The provisions in
the first Act were held to govern and control those of the
second, as the first was made to come into force after the
second ; and although passed first, it was construed as the
" later " statute. This is precisely the relative position of
the Highway and the Municipal Acts of the sessions of 1835.
The Highway Act received the Royal assent on the 31st
August, 1835, but was not to come into operation until the
20th March, 1836 ; the Municipal Act received the royal-
assent on the 9th September, 1835, and came into force on
that day, thereby ante-dating the prior statute in its opera-
tion by nearly six months.

The construction to be put upon those Acts must be in
accordance with the statute 33 Geo. 3, c. 13, and the judg-
ment in Paget v. Foley ; and, as remarked by Tindal, C. J.,
in that case, "if there is any thing irreconcileable with the
first statute, it would be a strange proceeding that the legis-
lature should designedly pass one law to be in force for some
time in one year, and a different law on the same subject-
matter to come into force the next."

HIGHWAYS. 325

From the 9th September, 1835, to the 20th March, 1836, The
the Highway Act 13 Geo. 3, c. 78, and the Amending Act ^^""icil'al
55 Geo. 3, c. 68, were in force, and co-existent with the g^ghway
Municipal Act. And as before siiown, in accordance with j^cts, 13
the decision in B. v. Gloucestershire {supra), and inde- Geo. 3,
pendently of whether or not Bristol was a county of a city, c. 78, and
or merely a borough scheduled in the Municipal Act, that '^go^°' '/
where a highway to be stopped up, &c., lay within the limit existent.
of the borough, the Recorder of the borough had alone the
jurisdiction to enrol the order for stopping up such high-
way (or).

On the coming into operation of the new Highway Act on
March 20th, 1836, there was no enactment in it which was
inconsistent with the continued existence of the former
jurisdictions ; nor did the Act create any new jurisdiction.
llie preliminary procedure alone was altered ; but the ulti-
mate Court at which the justice's certificate should be
enrolled, or to which an appeal should be made, remained as
before, the Court '^for the limit" in which the highway
might lie.

On reviewing the proceedings prior to 1836, for the stopping
up, &c. highways, it will be observed that the statute 55
Geo. 3, c. 68, had for its object the giving a greater notoriety
of any intention to deprive the public of a highway than
there was under 13 Geo. 3, c. 78. Under 13 Geo. 3, c. 78,
the entire control was with the justices in special sessions ;
under 55 Geo. 3, c. 68, the public were more widely informed
of what was about to be done by advertisements and notices ;
— still the order was with the special sessions ; bu% under that
Act, it was to be confirmed by the quarter sessions of the limit
in which the highway was situate. By the Highway Act, 1835,
after 20th March, 1836, further regulations and publicity
were provided, in addition to those required under 55 Geo. 3,
namely, that the inhabitants in vestry should give their
assent, and the certificate of the justices be lodged for
public inspection at the office of the clerk of the peace of the
county.

In this new regulation there exists no inconsistency with
sec. 105 of the Municipal Act, or "any thing in-econcileable
with that first statute," to use the language of Tindal, C. J.,
in Paget v. Foley. The duty cast on the clerk of the peace

(rt) See ante, tit. " The Ee- 6 A. & E. 638 ; B. v. St Lawrence,

colder and his court," remarks on Ludlow, 11 A. & E. 170; R. v.

the above case, B. v. Gloucester- St. Edmund's, Salisbury, 2 Q. B,

shire ; also B. v. Htdl Becordcr, 71.

826 , HIGHWAYS.

for the county by the legislature in sec. 85, Act 1835, is
purely ministerial, and solely in respect of his being the
most prominent public officer in the county at large, having
a central office for the deposit of the certificate well adapted
for the convenience of public inspection generally (a). The
certificate is in fact deposited with him not only for inspec-
tion, but being " lodged " with him, he is directed by the
statute to return it (and " read it ") in open Court " at the
sessions for the limit " (whether county or city) having juris-
diction in the matter, such sessions being those " for the limit
within which the highway shall lie."

The mere requirement to make such deposit or lodgment
of the justice's certificate with a clerk of the peace of the
county could never have been intended to have the effect of
repealing or overriding, by inference, the positive enactment
of sec. 105 of the Municipal Act, giving the Recorder of a
borough, within the limit of his borough, full jurisdiction
over " all matters whatsoever cognizable by any court of
quarter sessions of the peace in England." And "who shall
have power to do all things necessary for exercising such juris-
diction notwithstanding his being the sole judge." See B. v.
Gloucestershire {supra) ; R. v. Hull Recorder {sup7a), and other
cases, ante, under tit. "The Recorder and his Court."

The legislature having imposed such duty on the county
clerk of the peace which does not, as above remarked, conflict
with the 105th sec. of the Municipal Act, that duty he is
bound to perform. The performance of it in no way affects
the authority of the Recorder, or his Court.

Where the legislature has intended to curtail the juris-
diction of the recorder's Court direct and positive words
have been used, as in the exceptions to the above sec. 105 ;
or as in the Lunatic Asylums Act, 1853, 16 & 17 Vic. c. 97,
s. 108: see R. v. Warwickshire, 28 L. J. M. C. 249; R, v.
Kent, 35 ih. 201 ; L. R. 1 Q. B. 385 : {infra.)
The appeal So also it may be noticed that the appeal under sees. 88,
is to the 89, is to be made to the justices at " the said Quarter Ses-
court of gioiig" • — that Is, to thc only court previously mentioned in
sec. 85, — the court of " Quarter Sessions for the limit " in
which the highway to be dealt with shall lie. This will be
again a continuance of the former practice, and a mainte-
nance of the old jurisdiction.

{a) Other instances of a similar documents might be mentioned,
use made of the Clerk of the such as the depositing with him
Peace as the depositary of public railway plans and notices, &c.

HIGHWAYS. 327

There being no appeal, or, if any, the appeal being dis- Final en-
missed, ttie " said " sessions *' shall " make the order asked for, rolment.
s. 9 1 ; and on the completion of the new highway being made to
the satisfaction of two justices, their certificate is to be
returned " to the clerk of the peace " (using the language of
sec. 85), " and by him to be enrolled amongst the records of
the Court of Quarter Sessions next after such order shall
have been made ; " — such order having been made by the
sessions of the limit in which the highway lay. And it may
further be noticed, that the final view of the justices before
making their certificate of the completion of the new high-
way, is to be made by two justices acting for the county,
or for the limited jurisdiction of a city having a court of
quarter sessions ; in either case they make the return of
their certificate of completion to the clerk of the peace of
" the limit " of their oivn jurisdiction, and where the first
certificate had been enrolled (a).

Sec. 86, of the Act 1835, provides that where it is pro- Where the
posed to stop up or divert more than one highway, which jj'g^^ay ^^
highways shall be deemed to be so connected together, as^^^i*^^^
that they cannot be separated, stopped up, or diverted lies in two
without interfering one with the other, it shall be lawful to jurisdic-
include such different highways in one order or certificate. *^^°^ ' ^^
And on appeal (sec. 87) against the whole, or any part or T. ^^^ "^^
parts of such order or certificate, the court may confirm the are to be
whole, or part or parts thereof, without prejudice to the stopped up.
other parts thereof.

Where, however, the highways (although they cannot

(fl) It would not have been Such enrolment was clearly ultra

considered requisite to have so vires. The author has, however,

fully discussed this point of felt himself bound to treat

practice here or as under the the decisions of that court with

tit. " Recorder and his Court "' respect ; at the same time bear-

(jiJite'), had it not been a lung ing in mind the remark of Lord

mooted vexata questio, as to Coke, when that very learned

which was the right jurisdiction lawyer was told that a states-

toproceedinforthe stoppingupof man was going to consult him

a highway lying within the limit upon a point of law; — "If it

of a borough having a court of be of common law, I should be

quarter sessions. Kecently, it ashamed if I could not give him

may be mentioued, at a quarter a ready answer ; but if it be

sessions held for West Kent, the statute law, I should be equally

county justices enrolled a certili- ashamed, if I answered him im-

cate of justices of the city of mediately." In such spirit this

llochester, for the stopping up a vexed question has now been

highway lying wholly within the considered ; the result of the

jurisdiction of the Recorder's argument is submitted to the

court for that city and " limit.' judgment of the profession.

328 HIGHWAYS,

conveniently be stopped up or diverted separately), lie
within two jurisdictions, it appears to be necessary that
there be a separate certificate and order in each jurisdiction.

JUx V. An instance of this class is reported, in R. v. Milverton, 5 Ad.

Milverton. ^ £ 341^ decided under the Act, 55 Geo. 3, c. QB>, where
the highway to be dealt with lay in two highway special
districts. The question arose on an indictment for the
non-repair of a highway. The several highways mentioned
in the indictment arose in Milverton parish, and were com-
prised in an order of justices, declaring them to be unne-
cessary, and directing them to be stopped up. It was, inter
alia, stated in the special verdict : — " One portion of the
highway mentioned in the first and third counts in
the indictment, was wholly in Milverton; another portion,
mentioned in the second and third counts was, as to half of
its breadth, in the parish of Milverton ; and as to the other
half of its breadth in the parish of Oak. Both parishes
were in Somersetshire. The highway was known as
Blackgrove Lane, and comprehended as well the parts in
the parish of Oak as those in Milverton. The portion of
the highway stated in the order to be in Milverton was
the same as that in the indictment ; but no order of
justices had been made for stopping such parts of Black-
grove Lane as were in the parish of Oak ; and that the
highway had never been allotted for repairs, under 34 Geo. 3,
c. 64.

Milverton parish, it seems, was in one divisional highway
sessions jurisdiction, and Oak parish in another. As stated
in " Dickinson's Quarter Sessions," 6th ed., p. 17, '* The Acts
13 Geo. 3, c. 78, and 55 Geo. 3, c. Q^, while in force pro-
vided that notices of holding a special sessions for stopping
or diverting a way should be ''given to the justices, by the
high constable or other proper officer, within the limits of
the division^^ ; and, at p. 15, he states : — "To constitute a
legal special session, every magistrate of the division must
have had an option presented to him of attending it." And
at p, 16, he says : — " Where the Act directs a special ses-
sions to be holden, its provisions must be strictly complied
with."

In this case the objection was taken to the order that the
two justices of the Milverton division had found the whole of
the way useless, but had only stopped up a part of its breadth,
no order having been made as to the other part Ijing in Oak
parish. On these facts, Coleridge, J., remarked (p. 846) : —
" The justices must hold their special sessions for the highways

HIGHWAYS. 329

unihin the limits for which they respectively act; if any of them
made an order for more, they would be acting out of the limits
for which the sessions was held. It must be contended that, to
make an order for stopping up the whole breadth of the way,
there must be different special sessions, the justices in each
making an order as to part of the way." Subsequently his
lordship said, "I should think this was a casus omissus in the
statute." Lord Denman remarked: — "Where, as in this
case, the entire highway could not be stopped unless two sets
of justices concurred, and there is no such concurrence, the
statute is not carried into effect. Where a road runs through
different districts, but a part of it is wholly within one,
it might be very proper that the magistrates of the
districts should communicate with each other, and concur in
the order." And Patteson, J., said : — "If the difficulty could
have been removed by four justices meeting and making
orders for stopping the two portions of the road, well and
good ; but that course has not been adopted."

There are instances where the boundary of a city lies,
as the boundary of the special sessional divisions in R. v.
Milverton, along the middle of a highway ; and there the
same difficulty might arise if not met by sec. 86. The
language there seems to point to separate highways ; but
may it not be also applicable to a highway lying in two
jurisdictions 1 Each part would be under a distinct authority
for repairs, and in all respects, excepting its actual area, be
as two separate highways. It would seem that the only mode
in which the highway, under such circumstances, could be
stopped up, would be to obtain the joint view of four justices,
two from each jurisdiction, making all their proceedings in
combination, and enrolling the joint certificates of the four
justices at the quarter sessions of each limit in which the
several parts of the way might lie.

Under sec. 17, Act 1862, the highway board is bound to Proceed-
maintain the highways within their district in good repair. ^^^^ where
Should they fail in their duty, complaint may be made to a ^^^^ oil^,
justice of the peace under sec. 18, when summonses will be pair,
issued to the highw^ay board and the waywarden of the parish
liable to repair the highway to attend at a petty sessions,
and unless the board undertake to repair the road, or the
waywarden denies the liability of the parish to do the repair,
the justices may either themselves view the highway, or have
a report made of its condition by some competent person,
and, if satisfied the highway is not in a complete state of
repair, it will be their duty to make an order on the board

330

HIGHWAYS.

Where lia-
bility to
repair a
highway is
disputed.

Extraordi-
nary traffic.

limiting the time for the repair to be done ; and should such
order not be complied with, the justices may appoint some
person to complete such repair at the cost of the board ; and
which cost may be recovered as if the order had been made
by an order of quarter sessions, and be removed into the
Court of Queen's Bench for enforcement.

Where the liability to repair the highway is disputed
the justices may direct a bill of indictment to be preferred
at the assizes or quarter sessions for the county, <fec., where
the highway may be, against the inhabitants of the parish.
And sec. 19 directs the payment of the costs. But this
section, 19, only applies where the highway is an admitted
highway : R. v. Farrar, L. R. 1 Q. B. 557 ; 7 B. & S. 554 ;
35 L. J. M. C. 210. And the court has no power over the
costs when the jury find the road not to be a highway; R. v.
Buckland, 34 L. J. M. C. 178; R. v. Odell, 34 J. P. 534.

See as to the power of appeal where the board makes an
order for the repair of a highway which they are not
legally liable to repair; Act 1864, sees. 38, 39, & 42, ante,
pp. 297, 298.

On the certificn.te of the surveyor to the authority liable
to repair a highway, whether a main road or not, that,
having regard to the average expense of repairing highways
in the neighbourhood, extraordinary expenses have been
incurred by such authority in repairing such highway by
reason of the damage caused by excessive weight passing
along the same, or extraordinary traffic thereon, such
authority may recover in a summary manner from any person
by whose order such weight or traffic has been conducted the
amount of such expenses as the court may consider had been
thereby incurred, sec. 23, Act 1878 (a).

The language of this section has been explained by
Lindley, J., in Lord Aveland v. Lucas, 49 L. J. C. P.
643 ; 5 C. P. D. 211 ; and was adopted by Lord Coleridge,
L. C. J., in Wallington v. Hoskins, 50 L. J. M. C. 19, 24;
Lindley, J., said : — " It appears to me that those words must
mean excessive and extraordinary with reference to the ordi-
nary use and traffic upon and over the road. If any thing is
done of an unusual or extraordinary kind, the person doing it
must pay the damage thereby occasioned. It is the ordinary
nature of the traffic over the road which is to be the
standard." And as Field, J., put the question: — "Before

(a) The limitation of the six
months for a summons on the non-
payment of the expenses caused

by the extraordinary traffic will
date from the surveyoi"'s certifi-
cate, White V. Colson, 46 J. P. 565.

HIGHWAYS. 3.31

we can construe such words as ' excessive ' and ' extra-
ordinary,' we must see what is normal and ordinary ''; S. C.

In the case of Lord Aveland v. Lucas, a locomotive engine
and trucks were used for carrying goods and materials for
the ordinary purposes of the appellant's estate. The engine
was constructed in compliance with the requirements of
sec. 28, Act 1878, an order was made against the appellant
and the Court confirmed it {a).

In the case of Wallington v. Hoshins, there were stone
quarries in three neighbouring parishes, the roads had been
constructed for use in reference to the quarries, and the
conveyance of stone was a recognised business there ; the
quarry owners appealed against an order made on them for
the repair of the roads ; it was held that there was no
evidence to support the order.

The conveyance over a highway of materials for the Excessive
building a house where the weights of the loads required the traffic,
use of "trails'' when going down hill causing damage to the
highway, the ordinary traffic on the highway was conducted
without the use of " trails." This was held not to be such
a damage to the highway within the 23rd sec, for which the
party would be liable : Pickering Lyilie East Highway Board
V. Barry, 8 Q. B. D. 59; 51 L. J. M. C. 17.

In that case Lopes, J., having spoken of the general
inadvisability of framing a definition, said it was difficult to
come to a decision without defining the matter in his mind
and he should do so thus : — " the legislature intended some-
thing unusual in weight, or extraordinary in the kind of
traffic, either as compared with what is usually carried over
roads of the same nature in the neighbourhood, or as
compared with that which the road, in its ordinary and fair
use, may be reasonably subject to. It would not be sufficient
to compare the weight and traffic complained of with the
traffic usually carried on the particular road ; it might be
the traffic was usually of the lightest kind ; but surely the
legislature never intended that a man was not to use the
road for carrying materials for building a dwelling-house,
farmhouse, or barn, provided he used it in a reasonable way
for those purposes. The comparison must be larger. Should
this definition not be exhaustive it may be found useful." It
was held that the using trucks with traction engines for the
convej'ance of manure would be " extraordinary traffic " ; R.
v. Ellis, 8 Q. B. D. 468.

{a) See Williams v. Davics, 44 J. P. 347 ; R. v. Williamson, 45
J. P. 506,

332 LANDLORD AND TENANT.

INDUSTRIAL SOCIETIES.

The Industrial and Provident Societies Act 1876, 39 & 40
Vict. c. 45, consolidated and amended the law relating to
industrial and provident societies, assimilating the same to
the law, in certain respects, relating to friendly societies.

Sec. 10, sub-sec. 3 enacts as offences under the Act similar
provisions as are in the Friendly Societies Act, 1875 (ante^
p. 263). Sec. 14, sub-sec. 3, (a), (b), (c) ; and also re-enacts
sub-sec. 4 thereto as to liability of members, and the consti-
tuting a new offence ; and it further provides against the
society carrying on the business of bankers (d).

A person fraudulently obtaining possession, or withholding
or misapplying any property of the society will be liable on
summary conviction to a penalty of not exceeding £20, nor
less than 20s. ; and in default of delivering up the property,
imprisonment with or without hard labour for not exceeding
three months. Sec. 12, sub-sec. 10.

The penalties (where no specific penalty is provided for an
offence) will, under sec. 18, sub-sec. 3, be the same as those
under sec. 32, sub-sec. 3, of the Friendly Societies Act, 1875.
(See p. 365.) And the appeal clause, sec. 19, sub-sec. 6,
is the same as in the Friendly Societies Act, 1875, sec. 33,
sub-sec. 5 (p. 265.) The evidence clause as to documents
(sec. 39, p. 265), is repeated in sec. 24 of the Industrial
and Provident Societies Act.

LANDLORD AND TENANT.

Distress ; Fraudulent Removal of Goods to avoid Distress.

Removal The 11 & 12 Geo. 2, c. 19, s. 3, provides that if a tenant
of goods, shall fraudulently or clandestinely convey aw^ay, or carry off
his goods from the demised premises to prevent a distress,
the lessor may within thirty days next thereafter, distrain on
the goods removed wherever found for the rent in aiTear, if
not, before seizure, sold bond fide for a valuable consideration
to a person not privy to the fraud. And any person wilfully
and knowingly aiding or assisting in such removal, or con-
cealing the goods removed will forfeit double the value of
the goods carried off or concealed. And by sec. 4 where the

LANDLORD AND TENANT. 833

goods removed do not exceed in value £50 the landlord may-
apply to two justices, who may adjudge the offender to pay
double the value of the goods ; and if he refuse, they shall
by warrant levy the same by distress ; and for want of dis-
tress commit the offender to hard labour for six months.

To convict the party for assisting in the fraudulent re-
moval of the goods, it must appear that he did so to prevent
a distress ; Brooke v. Noakes, 8 B. & C. 537. And the re-
moval was secret to elude the distress ; Parry v. Duncan,
7 Bing. 243. The rent must be due, Rand v. Vaughan, 1
Bing. N. C. 767 ; 1 Scott, 670.

On the order of conviction the relationship of landlord and The order,
tenant must appear, R. v. Davis, 5 B. & Ad. 551 ; 2 N. & M.
3-49. But the value of the goods need not be specified ; it
will be sufficient if the justices find generally that the value
was under £50 ; see R. v. Rabbits, 6 D. & R. 343. It must
appear that a complaint was made in waiting by the landlord,
his bailiff, agent, or servant. It was held insufficient for the
order to state that the defendant was duly charged in writing.
Ex parte Fuller, 13 L. J. M. C. 141 ; New. Sess. Cas. 284.
So also it has been held that the order was bad without
stating that the offender was summoned, and the complaint
was adjudged to be true on evidence given upon oath, and
that there was proof before the justices that the party wil-
fully and knowingly assisted in the removal of the goods,
although it specified the full proof of the offence on which
the justices adjudicated. Ex parte Morgan, 4 Jur. 916,
B. C.

Under this statute by sec. 5, a bare right of appeal is Appeal,
given to the quarter sessions in general terms. No condi-
tions of any description are attached to the appeal ; but the
6th section provides for the appellant entering into his re-
cognizance to try the appeal. The provisions of sec. 31 of
the Summary Jurisdiction Act, 1879, regulating an appeal
as to notices or otherwise, has been held to apply to this
class of appeal ; see R. v. Salop JJ., 50 L. J. M. C. 72,
but see that case discussed {infra) under Tit. " Summary
Jurisdiction Acts," post.

Under the Railway Rolling Stock Protection Act, 1872, Railway
35 & 36 Vict. c. 50 (an act to protect railway rolling stock rolling
from distraint when on hire), by sec. 3, '' rolling stock being ^?
in a work shall not be liable to distress for rent payable to a exempt,
tenant of the work, if such stock is not the actual property
of such tenant, and has the name of the owner affixed on it
on a metal plate. By sec. 4, where such stock has been dis-

334

LUNATIC PAUPERS.

trained, a court of summary jurisdiction may order its
restitution, on payment of its value, with costs. And by
sec. 6 any party who thinks himself aggrieved by any such
order, or dismissal of his complaint, may appeal therefrom,
subject to the following conditions and regulations : —
Appeal. 1, The appeal is to be made to some court of general or

quarter sessions for the county or place in which the cause
of appeal arises holden not less than fifteen days, and (unless
adjourned by the Court of Appeal) not more than four
months after the decision of the court of summary juris-
diction.

2. The appellant must, within seven days after the cause
of appeal has arisen, give notice to the other party, and to
the court of summary jurisdiction of his intention to appeal
and the ground thereof.

3. And immediately after enter into his recognizance to
try the appeal, &c.

As to the service of the notice on the " Court of Summary
Jurisdiction," see Curtis v. Buss {infra, p. 72, 133), 3 Q. B. D.
13; 47 L. J. M. C. 35 ; eo nom. Ex parte Curtis, 26 W. R. 210.

LUNATIC PAUPERS.

The Act.

Boroughs
annexed
to counties.

Boroughs
deemed
annexed to
counties.

"The Lunatic Asylum Act, 18-53," 16 & 17 Vict. c. 97,
consolidated and amended the law relating to lunatic
asylums in counties and boroughs, and the maintenance and
care of lunatics.

The Act directed justices in counties and boroughs to
provide asylums : sees. 2 — 7.

Every borough not having a separate quarter sessions,
recorder, and clerk of the peace, became at the passing of
the Lunacy Act, 1853, annexed to, and is now treated and
rated as part of the county in which the borough is situate
(sec. 131); see also 28 & 29 Vict. c. 80, "The Lunacy
Amendment Act, 1865;" where the borough neglected to
provide an asylum, see 16 & 17 Vict. c. 97, s. 10.

Boroughs contributing to the county asylum at the com-
mencement of the Act, 1853, are deemed to have an
asylum, and will so continue until the borough authorities
give notice of separation ; and until then the borough will
remain liable to contribute towards the expense of the
^stabhshment : 16 & 17 Vict. c. 97, s. 8.

LUNATIC PAUPERS. 335

All boroughs created after the commencement of the
Act of 1853, for the purposes of that Act, are deemed to be
annexed to the county in which the borough is situate ;
18 & 19 Vict. c. 105, s. 7.

A superintending committee of visitors is annually to be Superin-
appointed under the Act of 1853, sec. 22, by the justices of *^^*^i^g
the county at the January quarter sessions, sees. 3, 12 ; and i^^J^^ty^
where a borough, which is attached to the county, has a
separate court of quarter sessions, the recorder at the like Members
sessions will appoint two justices of his borough to be appointed
members of the county visiting committee : 16 & 17 Vict, coj-^g^ ^^"
c. 97, s. 9 ; 19 & 20 Vict. c. 87. ■

Sec. 67, 16 & 17 Vict, c. 97, makes provision for the Transfer
mode in which a pauper lunatic is to be transferred to an o^ paiiper
asylum. It may be by order of a justice " on view " of the *° ^^^ ^^'
pauper, or personal examination, or other evidence that the
pauper is a lunatic ; or the order may be made by the
officiating clergyman, with the overseer or relieving officer
" upon view," or examination of the pauper. The certificate
of the medical officer is to be taken as conclusive proof of
the lunacy ; and by s. 122, the making a false certificate is
a misdemeanour.

Sec. 67 furtiier provides that any justice may examine Paupermay
a pauper deemed to be a lunatic, at his own abode or else- ^^ ex-
where, and proceed in all respects as if such pauper were ^^^'^^^ **
brought up before him in pursuance of an order for that residence
purpose ; and where such pauper cannot, on account of his by a justice
health, or other cause, be conveniently taken before any pr officiat-
justice, such pauper may be examined at his own abode, or ^^^ clergy-
elsewhere, by an officiating clergyman of the parish in which oj-der made
he is resident, together with a relieving officer, and such for re-
officiating clergyman, together with such overseer or relieving movaltoan
officer, may, by an order, direct such pauper to be removed ^y^^^"^*
into the as^dum (a).

A justice of a borough not having a separate court of Borough
quarter sessions has no jurisdiction to send a pauper to an justice no
asylum : Faversham v. The Isle of Thanet Utiion, 2 B. & S. j^^^'^^^^^^'
275 ; but where the lunatic has become chargeable, he may
be removed under the common order : H. v. Barnsley,
18 L. J. M. C. 170.

(a) Commissioners of lunacy the asylum, sec. 16 & 17 Vict. c. 97,

may order the removal of a s. 77 ; 18 & 19 Vict. c. 105, s. 8 ; as

lunatic pauper to an asylum : 25 to lunatics wandering abroad, see

& 26 Vict. c. Ill, ss. 31—33 ; as 16 & 17 Vict. c. 97, s. 68,
to the power given to visitors of

336

LUNATIC PAUPERS.

Removal
under sec.
67 not
within
meaning of
7 & 8 Vict.
c. 101,
s. 56.

7 & 8 Vict.
c. 101,
s. 56,
applies
only to
questions of
settlement.

E^sidence
in asylum
deemed
residence
iff parish
chargeable
for pur-
j)oses
of settle-
ment.

Chargea-
biiity of
pauper
lunatics
found in a
boroush.

An order made for the removal of a lunatic pauper under
sec. 67 is not within the meaning of 7 & 8 Vict. c. 101, s. 56^
under which the workhouse of the union or parish is con-
sidered as situate in the parish to "which the pauper is
chargeable. So that where a pauper is in the union work-
house, and there becomes a lunatic, he may be considered
as abiding in the parish in which the workhouse is situate;
and an order for the pauper's removal to the asylum may be
made by the officiating clergyman and relieving officer of
that parish. The 7 & 8 Vict. c. 101, s. 56, applies to where
it is necessary to inquire into the settlement of the pauper,
and on whom the burthen of the maintenance shall fall ;
in such case regard must be had to the place where the
pauper's previous place of abode was : H., v. Pemherton, and
AnothffT, JJ., R. v. Smith, 4:9 L. J. M. G. 29 ; '5 Q. B. D. 95";
41 L. T. 664; 28W..R. 362. " See B.ho. Kettering v. North-
a7npfon Lunatic Asylwrl, 34 L. "J. M.' C. 198.

And- sec: -95 of 16 '& 17 Vict. c. 97,' enacts that any pauper
lunatic confined -under, the provisions of the Act, shall for
the purposes of /ther Act be chargeable to the parish from
which, at the instance of some officer or officiating clergy-
man of which, he has been sent to the asjlum ; unless and
until, such parish shall have established that such lunatic
is settled in s(5me other parish, or that it cannot be ascer-
tained in what parish such lunatic is settled ; and every
pauper lunatic who is chargeable to any parish whilst he
resides in an asylum, will be deemed, for the purposes of his
settlement {a), to be residing in the parish to which he is
chargeable. See R. v. Whitby Union, L. R 5 Q. B. 325 ;
39 L. J. M. C. 97 ; 22 L. T. 336 ; Somerset Clerk of the Peace
V. Shipham, 32 L. J. M. C. 83.

The Limacy Acts Amendment Act, 1862, 25 & 26 Yict.
c. Ill, s. 45 (repealing previous provisions on the sub-
ject (6)), enacts, that where a pauper lunatic is not settled
in the parish by which, or at the instance of some officer
or officiating clergyman of which, he has been sent to an
asylum, &e., and it cannot be ascertained in what parish he
is settled, and such lunatic is found in a borough which has
a separate court of quarter sessions, and is not liable, under
6 & 6 Will. 4, c. 76, to the payment of a proportion of the

(fl.) See " Irremovability " un-
der tit. " Eemoval."

(J) See 18 & 19 Vict. c. 105, 8.
14 ; Birmingham v. Bacchus, 8

E. & B. 870 ; 27 L. J. M. C. 181 ;
affirmed on error, 29 L, J. M, C.
56,

LUNATIC PAUPERS. 337

sums expended out of the county rate (a), or is found in any . .

borougli which, under 12 tfc 13 Vict. c. 82, is exempted
from liability to contribute to the payment of the expenses
incurred for maintaining pauper lunatics chargeable to the
county 'in which such borough is situate (b), such .lunatic
.shall be- chargeable to the borough in which he is found ;
and it shall not be lawful for any justices to adjudge such
lunatic to be chargeable to. any county, nor to make any
order upon the treasurer of any county, for the payment of
any expenses whatsoever incurred, or to be incurred, in
respect of such lunati-c. .

All the provisions of the Lunacy Act, 16 & 17 Vict. c. 97,
as to the mode * of determining that a pauper lunatic is
chargeable to a county, -and as to orders to be made for the
payment of the expenses, in re'spect of such lun^ic, and
for the repayment- thereof; to the treasurer- of ,;a: county,
will extend to the." case bf alDorongh,^ to ^liich a-lujiajtic is
made chargeable under' this section, .as if snch borough were •

therein mentioned instead of a c6unty {c).,-Sec„45,.Act 1862 . •
{siqyra). .**•"'.

Under sec. 96, of the 16 & 17 Vict. c. 97, the justices by Order of-
whose order the lunatic pauper had been sent to the asylum, mainte-
or two other justices of the county, or any two visiting "^j^^yj^"
justices, may make an order on the guardians of the parish parish.
from whence the pauper had been sent to the asylum for
payment of the maintenance of the pauper ; and such
order may be retrospective or prospective, or partly so
respectively.

There is no limit to this order ; but the parish so charged Limit of
can only recover one year's charges from the union that may order,
ultimately be adjudged to be the union of settlement of the
pauper: Finch v. York Union, 2 Q. B. D. 15 ; 46 L.J. M. C.
120; 35 L. T. 708; 25 W. R. 42; see sec. 97, post,
p. 341.

Under sec. 98, 16 & 17 Vict. c. 97, if any pauper be not When

settled in the parish in which, or at the instance of some settlemeut

officer or officiating clergyman of which, he is sent to any !sc^j.+aiued

asylum, &c., and it cannot be ascertained in what parish pauper

such pauper lunatic is settled ; and if a relieving-officer of chargeable

such first-mentioned parish, or of the union in which the *o ^^^e

county.

(«) See 2 & 3 Will. 4, c. 64 ; 5 aborough, see 39 & 40 Vict. c. 61, s.

& 6 Will. 4, c. 76, s. 117. 26 ; "The Divided Parit^hes and.

(h) See 12 & 13 Vict. c. 82. Poor Law Amendment Act,

(c) As to the mode of charging 1876 " (see also 16 & 17 Vict. c. D7,

the costs of a lunatic pauper to s. 99.)

838 LUNATIC PAUPERS.

same is situate, or the overseers thereof, shall give ten days'
notice to the clerk of the peace of the county in which such
lunatic was found, to appear for such county before two
justices thereof, at a time and place to be appointed in such
notice ; and such justices, upon the appearance of such clerk -
of the peace, or of any one on his behalf, or, in case of his
non-appearance upon proof of his having been served with
such notice, to inquire into the circumstances, and to adjudge
such pauper lunatic to be chargeable to such county, and
order the treasurer of the county to pay to the guardians of
any union or parish, or the overseers of any parish, all ex-
l^enses incurred by or on behalf of such union or parish in
the examination of the lunatic, &c., and monies paid for his
maintenance, &c., and incurred within twelve calendar
months {a) previous to the date of the order. The section
also provides for the payment by the treasurer of the county
of all charges for the future care of the lunatic at an asylum.
And the justices may direct inquiry to be made to ascertain
the parish of the pauper's settlement, and delay judgment
until the result of such inquiry : And it is provided, that
every county, to which any pauper lunatic is adjudged to be
chargeable, may, at any time thereafter, inquire as to the
parish in which such lunatic is settled, and may procure such
lunatic to be adjudged to be settled in any parish.

A legitimate child born in England of Irish parents who
have no settlement, has still its birth settlement to fall back
on ; and where such a child is a pauper lunatic, the order
should be made on the parish of its birth (^6, s. 97), and
not on the county (s. 98) : It v. Neivchv/rch, 32 L. J. M. C.
19 (6). And see Somerset Clerk of the Peace v. Shipham, 32
L. J. M. C. 83, where it was held that this section applies
to the expenses of maintaining the lunatic wife of a man born
in Scotland and having no settlement in England, and who
has been sent to the asylum under sec. 97.

Under the above proviso (in s. 98) the county may obtain
an order on the same parish which had obtained an order on
the county, and the first order be treated as a conditional or
interim order : All Saints, Poplar v. Middlesex, 29 L. J.
M. C. 186; 2E, & E. 829.

Sec. 99 provides for the reimbursement of the county the
expenses paid on account of a lunatic afterwards adjudged to
belong to a parish. See also 39 & 40 Vict. c. 61, s. 26.

(a) This limit of time applies (li) See 8 & 9 Vict. c. 117, s. 2.

only to the cost of mainteuance.

LUNATIC PAUPERS. 839

A person who has resided in a parish or any part of a Irremova.
union (a) for one whole year gains a status of irremova- I'ility.
bihty (b). But the time during which lie shall be confined
in a lunatic asylum, or house duly licensed, or hospital
registered for the reception of lunatics (inter alia) will be
excluded from such time.

A residence in a charitable " home " for lunatics by a
pauper lunatic, and maintained entirely by the funds of the
institution from monies collected at church offertories
throughout the county and other subscriptions, is not such
a residence as comes within the exemption from the compu-
tation of the time for creating irremovability. Fulham
Guardians v. The Isle of Thanet Guardians^ 45 L. T. 678,
138.

By sec. 102 of 16 & 17 Vict. c. 97, the cost of the main- ^Yhen
tenance of a lunatic pauper, removed to an asylum, regis- pauper
tered hospital, or licensed house, who would, at the time of ^^^"^P*
his being conveyed to such asylum, &c., have been exempt mova]
from removal to the parish of his settlement, or place of parish re-
birth, shall be paid by the overseer of the parish where it is moving
not in a union : or be charged to the common fund of the ^"^ ^^

i\ ^V 1 11 Til

union ; and no order shall be made on the parish of the char^^ealtle
pauper's settlement : (and sec. 5 of 12 &, 13 Vict. c. 103, is
repealed.)

At the time of the passing of the Act, the lunatic had
obtained a status of irremovability by residence in M.
parish. He was not in a union ; but an order had been
made on I. parish for his maintenance on his going into the
lunatic asylum. On the passing the Act, 16 & 17 Vict. c.
97, s. 102, and on the refusal by I. to make any further
payments, because of the residence in M., the court held
that M. was the parish liable, notwithstanding the existing
order on I. Knoivles v. Trafford, 26 L. J. M. C. 51 ; S. C.
Ex. Ch. ih. 188. See also K v. West Ward Union, 26 L. J.
M. C. 29, referring to 7 & 8 Vict. c. 101, s. b^.

\yhere the lunatic is removed to a fresh asylum, see In re
Marmans Trust, 8 Ch. D. 256 ; 38 L. T. 797 ; 26 W. R. 621.

A luuatic child of over the age of sixteen had been sent to Mainte-
an asylum under an order of justices, and was at the charge nance iu
of the parish of the widowed mother, from which she was irre- ^sylmn,
movable by reason of residence, it was held that the child's ^/reheT"

(rt) Sec Palmesgate v. West & 25 Vict. c. 55, s. 1 ; 28 & 29
Ham, 45 L. T. (310. Vict. c. 79, s. 8.

(*) 9 & 10 Vict. c. 66, s. 1 ; 24

Q 2

340 LUNATIC PAUPERS.

chargeability was not to be deemed relief given to the
mother so as to exclude the time during which the child was
in confinement from the computation of the time from the
mother's residence : R. v. *S'^. Mary, Islington, 3 B. & S. 46 ;
31 L. J. M. C. 233 ; see R. v. Elvet (Ink.), 29 L. J. M. C. 17 ;
4 & 5 Will. 4, c. 76, ss. 56, 57. But the cost of the main-
tenance of a lunatic wife is relief given to the husband ; and
the period of the relief given is to be deducted in computing
tlie time of their residence for the purpose of testing his
irremovability : R. v. St. George's, Bloomshury, 32 L. J. M. C.
217; 4B. &S. 108.

A woman who had been living apart from her husband
became a lunatic pauper and chargeable. Her husband was
irremovable from parish A, by residence. But his parish of
settlement was B. An order was held to be properly made
on B. for the maintenance of the wife, and not on the parish
where he had acquired the status of irremovability : R. v.
*SV. Clement's Banes, 32 L. J. M. C. 5 ; 7 L. T. 315 ; (sec. 97).
See also R. v. St George's, Bloomsbury, 4 B. & S. 108 ; 32 L.
J. M. C. 217 ; R. v. St. Mary ArcJies, Exeter, 31 L. J. M. C.
77 ; 1 B. k S. 890 (a).

Where a lunatic child above the age of sixteen but un-
emancipated was removed to the asylum from the workhouse
of the parish from which her father was irremovable, but the
father ceased to be irremovable between the time of the
child going to the workhouse and becoming a lunatic, it
was held that the order for maintenance in respect of the
child should be made on the parish of the father's settlement
and not that of his residence, as when he ceased to be irre-
movable the child also ceased : R. v. aS'^. Anns, Blackfiiars,
2 E. & B. 440 ; 22 L. J. M. C. 137. But where the father was
irremovable at the time of the child going to the asylum,
the parish from which he was then irremovable continued
liable for its maintenance, and not the place of the father's
settlement : R. v. St. Giles {Overseers), 3 E. & E. 224 ; 30 L.
J. M. C. 12.

A father having become irremovable by residence died,
leaving a widow and unemancipated daughter who continued
to reside in the same parish until the daughter became
chargeable and was sent to the workhouse. The widow then
left the parish of her irremovability to reside elsewhere.
Shortly after, the daughter was removed to a lunatic asylum,

(a) As to the hushand's liabi- & U Vict. c. 101, s. 5 ; 39 & 40
Uty to maintain the wife, see 13 Vict. c. 61, s. 20.

LUNATIC PAUPERS. ' 341

and, three months later, was discharged and sent to her
mother. The widow had no settlement of her own ; the
order of maintenance was held to be rightly made on the
parish of the father's settlement : B. v. aS'^. Mar^/ Arches,
Exeter, 31 L. J. M. C. 77 ; 1 B. <fe S. 890. Had the mother
continued her residence in the parish where her husband had
resided, the order should have been made on that parish :
B. V. St. Mary, Islington, 3 B. k S. 46 ; 31 L. J. M, C. 233 ;
R. V. St. Giles {Overseers), 3 E. & E. 224; 30 L. J. M. C. 12.

Where a pauper lunatic had acquired a status of irremov-
ability by residence, and was removed by her parents from
her service into a different union, and from whence she was
removed to the county asylum ; it was held, as she was in-
capable of exercising any intention of abandoning her resi-
dence, she still retained her status of irremovability notwith-
standing the changes in her places of residence which had
been caused, not by her own will, but by the acts of her
relatives : R. v. Whithy Union, L. E. 5 Q. B. 325 ; 39 L. J.
M. C. 97. The parish of irremovability is primarily liable :
Leeds V. Wakefield, 7 E. & B. 258 ; 26 L. J. M. C. 37.

The general law of settlement of the poor applies to the
settlement of pauper lunatics ; but there are some special
enactments made in reference to them to be noticed.

The Lunatic Asylums Act, 1853, 16 & 17 Vict. c. 97, s. 97, Lunatic
enacts, that any two justices for the county or borough in '^^^^^^'^l.,
which any asylum, registered hospital, or licensed house in ^ g'- "* '
which any pauper lunatic is or has been confined, is situate, Two jus-
or to which such asylum, wholly or in part belongs, or from tices may
any part of which any pauper lunatic is, or has been, sent order mam-
for confinement, may at any time inquire into the last legal ^^^^^^^j
settlement of such pauper lunatic, and if satisfactory parish of
evidence can be obtained as to such settlement in any settlement,
parish, such justices shall, by order under their hands and
seals, adjudge such settlement accordingly, and order the
guardians of the union to which the parish, in which such
lunatic is adjudged to be settled, belongs, or the guardians
of such parish in case such parish be a union, or under a
board of guardians ; and, if not, then the overseers of such
parish, to pay to the guardians of any such union or parish,
or the overseers of any parish, all expenses incurred by or
on behalf of such union in or about the examination of such
lunatic, and the bringing him before a justice or justices,
and his conveyance to the asylum, hospital, or house, and of
all monies paid by such last-mentioned guardians or over-
seers to the treasurer, officer, or proprietor of the asylum,

342

LUNATIC PAUPERS.

Jurisdic-
tion of
justices.

Justices
may make
an order on
guardians
beyond
jurisdic-
tion.

(]}uardians
may re-
cover costs
and obtain
orders.

hospital or house, for tlie lodging; maintenance, medicine,
clothing and care of such lunatic, and incurred within twelve
months previous to the date of such order; and if such
lunatic is still in confinement, also to pay to the treasurer,
officer, or proprietor of the asylum, hospital or house, the
reasonable charges of the future lodging, maintenance, medi-
cine, clothing and care of such lunatic. And the guardians
and overseers on whom any such order is made shall imme-
diately pay to the guardians or overseers to whom the same
are ordered to be paid the amount of the expenses and
monies by such order directed to be paid to them, and from
time to time pay to the said treasurer, officer, or proprietor
of the asylum, hospital or house, the future charges afore-
said.

The finding the pauper lunatic in confinement is the
foundation of the jurisdiction of the justices to make their
order: R. v. Rhyddlan, 19 L. J. M. C. 110; R. v. Crediton,
27 L. J. M. C. 26e5 ; R. v. Carnarvon Union, 3 New S. C.
708. And the same was held in R. v. Faversham, 21 B. & S.
275 ; 31 L. J. M. C. 116 (a), and in which case Wightman and
Mellor, JJ., further held that the validity of the order was
not affected by the fact that the order of admission of the
pauper to the asylum w-as made by a justice having no juris-
diction ; to which Crompton, J., dissented, being of opinion
that sec. 97 must be read with sec. 67, and applied only to a
pauper lunatic lawfully confined. Erie, .J., in R. v. Gaenarvon^
thought it would be salutary that the inquiry should com-
mence on the finding a pauper lunatic in confinement.

By sec. 100, 16 & 17 Vict. c. 97, justices may make the
order for the maintenance of the lunatic pauper upon the
guardians of any union or parish, or overseers thereof,
although such parish or union be out of the jurisdiction of
such justices.

By 39 & 40 Vict. c. 6, s. 25, the board of guardians of a
parish may recover the costs of and obtain oijders for the
maintenance of a pauper in like manner as the guardians of
a union can do unde* the provisions of the 11 & 1 2 Vict,
c. 100 ; and from and after September 29, 1876, such
guardians, when authorised by the local government board
to do so, shall be entitled to apply for orders of removal,
and to defend appeals against any such orders or {sic)

(a) In R. V. Faversham or
(S. C.) Fax er sham v. Isle of
Th-anet, it was held that sec. 67
must be read with sec. 132, so

that a justice of a borough not
having a quarter sessions, had no
jurisdiction to send a lunatic to
an asylum.

LUNATIC PAUPER9* 343

obtained, in the place of the overseers, and with the like
powers, and subject to the Uke liabilities as guardians of a
union are entitled or are siibject to in respect of such orders.

By sec. 108 of 16 & 17 Vict. c. 97, it is enacted that — Appeal—
If the guardians of any union or parish^ or the overseers of 1^ & 17
any parish, feel aggrieved by the order adjudging the settle- ^^'^ho'
mcnt of a lunatic, they or he may appeal against the same
to the next general quarter sessions of the peace for the
county in behalf of which such order has been obtained, or
in which the union or parish obtaining such order is situate ;
or in case such parish or union extend into several jurisdic-
tions, then to the next general quarter sessions of the peace
for tlie county or borough in which the asylum, registered
hospital, or licensed house in which such lunatic is or has
been confined is situate ; and such sessions upon hearing the
appeal shall have full power finally to determine the matter.

It was held in Ji. v. Yorkshire West Riding, 26 L. J. M. C. Overseer^
41, that either the overseers or the guardians, or both, had "S^^* ^*
the right of appeal under the above sec. 108 ; and in R. v. ^PP®^ '
The Medioay Union, 37 L. J. M. C. 100, the court decided [L. R. 3
that the overseers still retained that right, notwithstanding Q- ^- ^^'^j
24 k 25, c. 55, s. 7, enacting that orders in lunacy may be " '^
obtained by or appealed against hy boards of guardians. The guardians
statutes are not inconsistent with each other ; and the guar-
dians may appeal against and defend orders in respect of
lunatic paupers, made chargeable on the common fund of
the union, in like manner and subject to the same incidents
and provisions as are contained in 16 & 17 Vict. c. 97, in
respect of lunatic paupers chargeable to a parish in such
union. See also Droitivich v. Worcester, 32 L. J. M. C. 196.

In construing the above 108th section in R. v. Warwick- To wLat
shire, 28 L. J. M. C. 249, Crompton, J., expressed as a sessions
dictum, that the last branch of the section meant, when the fPP^al to .
parish, in which the pauper and asylum w^ere, was not wholly ' '

within one jurisdiction, but partly in the borough (which
was the case with Birmingham, having a separate quarter
sessions and recorder), then the situation of the asylum
should determine the tribunal.

But in a subsequent case, R. v. Kent J J., 35 L. J. M. C. [L. R. 1
201, where the county asylum was wdioUy within the borough ^\ ^- ■^^^'
of Maidstone, and the appeal was against an order obtained '-*
by the guardians of tlie Medway Union, which was partly in
the county of Kent and partly within the city of Rochester,
Blackburn, J., in giving his judgment, said, he could not
agree with the above dictum of Crompton, J., and thought

344 LUNATIC PAUPERS.

that he would not, on consideration, adhere to it. His lord*
ship stated, that the legislature seemed to have thought
that difficulties might arise where the parish or union was
in several counties, and made the solution of the difficulty
depend on the situation of the asylum. The term, " several
jurisdictions," he considered must be construed as if it were,
" several such jurisdictions," — that is, — counties ; and in that
Tiew Lush, J., agreed.

The ultimate decision in both cases was that the appeal
against an order adjudging the settlement of a pauper lunatic
would be to a coiinty and not to a borough sessions, Lord
Campbell remarking in R. v. W arvrickshire, "the Act ex-
pressly points out the w^ay in which the appeal is to be
lieard, viz., by the county justices; — to quote the words of
the Act, — the appeal is to be to the quarter sessions 'fo-r
the county in behalf of which such order has been obtained,
or in ivhich the union or parish obtaining such order is
situate.' "

In Ji. V. Warvrickshire, above quoted, R. v. Shropshire JJ.j
2 Q. B. 85 ; 10 L. J. M. C. 138, was referred to in argument
to establish the pro^w&ition that the borough quarter ses-
sions had exclusive jurisdiction to hear appeals against orders
of removal made by borough justices. But the distinction
rests in this, that that case had reference to a statute, 8 & 9
Will. 3, c. 30, s. 6, anterior to the Corporation Reform
Act giving the recorder's court as full a jurisdiction as the
county quarter sessions had (with three limited exceptions),
but this later Act, 16 & 17 Vict. c. 79, s. 108, expressly
points out the way in which the appeal is to be heard. See
also R. V. St. EdmmnTs, Salisbury, 2 Q. B. 72 ; i?. v. Liverpool
Recorder, 15 Q. B. 1070; R. v. Lancashire J J., 18 Q. B.
361(<?).
The depo- Sec. 109 provides that within seven days copies of the
sitions. depositions on which the order was made shall on application
be given by the clerk to the justice to the party authorised
to appeal against the order ; but no omission or delay in
furnishing the copy will be a ground of appeal. On the
trial no objection can be taken that such depositions furnish
no sufficient evidence to support the order or otherwise.
Notice of ^j gg(j^ 110, notice of appeal in writing must be sent by
*ppea . pQg^ ^j, otherwise to the party on whose application the
order was obtained within twenty-one days after the sending
or delivery of the copy or duplicate of the order and state-

(a) See Paget v. Foley, 2 Bing. X. C, ante, '' Highways," p. 324.

LUNATIC PAUPERS. 345

merit as under, sec. 107 {a), unless within twenty-one days a
copy of the depositions be applied for by the party intending
to appeal, in which case a further period of fourteen days
after the sending such copy will be allowed for the giving
such notice of appeal (b).

With the notice of appeal fourteen days at the least Grounds
before the first day of the sessions at which the appeal is °^ appeal
intended to be tried, the appellant must send or deliver by ^"*: ^^^^^^
post or otherwise to the respondent a statement in writing
under their or his hands or hand, or where the appellants
are the guardians of a union or parish, under the hands of
three or more of such guardians, notice of the grounds of
such appeal ; and the appellant will not be allowed to go
into or give evidence on any other grounds than those set
forth in such statement ; sec. 111. The grounds of appeal
need not be served with the notice. See E. v. Stepney
Union, 43 L. J. M. C, 145.

A signature by the clerk to the guardians as "clerk to the Signature
aforesaid guardians " is sufficient : R. v. Newport Union ^y "^^^
(Guardians), 33 L, J. M. C. 155; E. v. Glamorganshire, 18 ^^®^'*^-
L. J. M. C. 118, Lunatic orders are excepted from Baines' Baines'
Act, sec. 2. Act.

No objection can be taken as to the form of setting out No objec-
the grounds of adjudication or appeal, and no objection to tio^i heard
the reception of legal evidence offered in support of any such ^, 8^.'""!^^
ground alleged to be set forth in any such statement will cation or
prevail, unless the court be of opinion that such alleged appeal,
ground is so imperfectly or incorrectly set forth, as to be
insufficient to enable the party receiving the same to inquire
into the subject of such statement, and to prepare for trial ;
and it is provided that in all such cases the court shall have
the power of amendment, and the officer of the court may,
under order of the court, forthwith amend the statement,
on such terms as to costs, or the postponement of the hearing,
as the court may think just. Sec. 112.

Upon objection being made to the form of the order the
court may amend any omission or mistake. Sec. 113.

Sec. 117 of 16&17 Vict. c. 97, enacts that where an Abandon-
order has been made under the Act, and the copy or dupli- ment of
cate thereof sent as required, such order may be abandoned ^^^^re.
by the party obtaining the same by his giving notice in

(a) See R. v. Shrewsbury Re- (V) See cases on this point as

corder, tit. *' Appeal," ante, p. to the limit of time for appeal ;
110. tit. " J.p^eaZ/' p. 125.

Q 3

346 LUNATIC PAUPERS.

writing (sent by post or delivered) under the hand of such
part}'^, or where obtained by the guardians of any union,
under the hands of any three or more of them (or of their
clerk : R. v. NevjiwH Union, snjyra), of their abandonment of
such order ; and thereupon such order and all proceedings
consequent thereon will become null and void, and shall be
in no way given in evidence, in case of obtaining another
order for the same purpose. But the party abandoning the
order shall pay all costs incurred by reason thereof, to be
taxed by the proper officer of the court before which such
appeal would have been tried if not abandoned.

Omission or mistake in drawing it up ; and if it be shown
that sufficient evidence was in proof before the justices
making the order to have authorised the drawing it up free
from mistake, the court may amend the order and give judg-
ment thereon. But on a return to a w^rit of certiorari no
objection to the form of the order can be taken which is not
specified in the rule : sec. 113.

A party making frivolous and vexatious statements of
grounds of adjudication or of appeal, such party will be liable
to pay the costs arising out of the same : sec. 114.

The losing party may be ordered to pay costs : sec. 115.
Officer of Under sec. 80 of 16 & 17 Vict. c. 97, the visitors of an

parish or asylum may order the discharge of the lunatic, when their
union trom ^.\qy\^ ^.ji| serid notice thereof to the overseers of the parish

'whiCii

lunatic gent wherein it may have adjudged the lunatic is settled; or if no

to remove such adjudication, to the overseers of the parish from w^hich

anfl receive the lunatic had been sent to the asylum, unless such lunatic

him on j^j^^ been charged to the common fund of any union ; and in

such case the notice will be sent to the relieving officer.

Upon receipt of such notice the overseers or relieving officer

will be bound to remove the pauper from the asylum under

a penalty of not exceeding <£10, to be recovered as other

penalties under the KoX.

The overseers of the parish which had sent the lunatic to
the asylum are bound to remove the lunatic after receipt of
this notice from the visitors, although it may have been
adjudged that such lunatic was " not settled" in this parish,
and although he had not an ascertained settlement elsewhere,
and are liable to a penalty for refusing or wilfully neglecting
to remoA^e such lunatic after due notice : Liverpool {Overseers)
V. The Lancaster J J., Visitors to the County Asylum, 36 L. J.
591.
The order. By sec. 107 of 16 k 17 Vict. c. 97, the overseers of
a parish, or guardians of a union or parish, or clerk of the

LUNATIC PAUPEBS. 347

peace of a county, obtaining an order adjudging the settlement
of any lunatic to be in any parish, shall within a reasonable
time thereafter send or deliver, by post or otherwise, to the
overseers or guardians of the parish in which such lunatic is
adjudged to be settled a copy or duplicate of such order, and
also a statement in writing under their or his hands or hand,
or under the hands of any three or more of the guardians
stating the description and address of the overseers, guardians,
or clerk of the peace obtaining such order, and the place of
confinement of the lunatic ; and setting forth the grounds of
such adjudication, including the particulars of any settlement
or settlements relied upon in support thereof ; and on the
hearing of any appeal against any such order, it shall not be
lawful for the respondents to go into or give evidence of any
other grounds in support of such order than those set forth
in such statement.

Under this section the session have no power to amend
the order where it is addressed to the overseers instead of to
the guardians by substitution of one for the other : R. v.
Liverpool, 29 L. J. M. C. 137.

But the mere omission of the addresses required by the
section may be added by way of an amendment under 11 &
12 Vict. c. 31, s. 4 : R. v. Manchester, 26 L. J. M, C. 1 ; 6 E.
& B. 919.

Where the order is obtained by the guardians of a union
on behalf of a township, the overseers thereof should sign the
*' grounds," &c. : R. v. Heato7i, 28 L. J. M. C. 181.

Under sees. 58, 62 of 8 & 9 Vict. c. 126 (repealed), the Order for
adjudication on the settlement of the pauper may properly maiutc-
be made with the order for the payment of the costs of main- nance and
tenance : R. v. Tyrwhitt, 17 L. J. M. C. 141. ^^IntmT

Sec. 58 {ih.) empowered justices to adjudicate on the settle- \^q i^ ^^^^
ment of " any pauper lunatic confined, or ordered to be con-
fined," in an asylum. An order for maintenance made after
the pauper had been discharged from the asylum was held
to be bad: R. v. Wolverhampton, 14 Q. B. 318; 19 L. J.
M. C. 25. But see 16 & 17 Vict. c. 97, s. 97; Bradford
Union v. Wilts, n. p. 348.

Where two or more parishes are united under Gilbert's Act, The order
22 Geo. 3, c. 83, the order under the above section must be where
made on the guardians of the particular parish, and not on ^' ®^*^
the guardians of the union : Leatham v. Bolton-le-Sands, 35
L. J. M. C. 62, overruling R, v. Bramley, 31 L. J. M. C. 11 ;
1 B. & S. 732.
The order must be addressed to the board of guardians where

348

LUNATIC CRIMINAL PAUPERS.

OTcrsecrs
may sign
grounds of
adjudica-
tion, &c.

a local Act has created the board : E. v. Liverpool, 29 L. J.
M. C. 137. And see 7 & 8 Vict. c. 101, s. 28. As to the form of
the order, and reference tovenne, see R. Y.St Maurice, 16 Q. B.
908 ; 8 & 9 Vict. c. 126, ss. 58, 62. If the order be addressed
to the guardians of the union and their clerks^ and ordering
the clerk to pay the expenses, that is a compliance with the
section and an order on the guardians : H. v. Crediton, 27
L. J. M. C. 165.

The overseers of a township are the proper persons to sign
the statement of the grounds of adjudication and particulars
of settlement under sec. 107, 16 & 17 Vict. c. 97. It was
contended that the guardians should have signed as the
domini litis, but Lord Campbell said the objection was most
frivolous. And Erie, J., said the overseers clearly came
within the words and intention of the section : R. v. Ueatoiiy
28 L. J. M. C. 181, 183.

Persons aggrieved by a refusal of an order may appeal, s.
106.

LUNATIC CmMINAL PAUPERS.

By 27 & 28 Vict. c. 29, s. 2, where a person becomes
msane while a prisoner, his condition may be inquired
into by two of the visiting justices, where such justices are
appointed ; or if he be in some other place of confinement
the inquiry will be made by two justices (a) of the county,
city, borough or place where the place of confinement is
situate ; and such visiting and other justices being assisted
by two medical practitioners, and a certificate being made by
them that the prisoner is insane, a secretary of state may
order the prisoner's removal to the asylum.

And by 3 & 4 Vict. c. 54, s. 2, unless the secretary of state
shall otherwise direct, two of the visiting justices, or any two
justices of the county or place where the person is imprisoned,
may inquire into "the personal legal disability of such insane
person, the place of his last legal settlement, and the pecu-
niary circumstances of such person." Should it not appear
that the prisoner has sufficient property to maintain him, and
the place of his settlement is ascertained, the justices may

(jci) The visiting justices are
the proper persons to inquire into
the settlement of the lunatic
prisoner : R. v. Leives, 41 L. J.
M. C. 57, 176 ; L. R. 10 Q B. 166,
679; and the visiting justices

may act though sitting in a
borough possessing exclusive
jurisdiction : Bradford Union v.
Wilts Clerk of the Peace. 37 L. J.
M. C. 129 ; L. R. 3 Q. B. G04 ; 9
B. & S. 660.

MANDAMUS. 349

make an order on the overseers of the parish or guardians of
the union in which the settlement is adjudged to pay the costs
of the inquiry into the insanity of such person, and the con-
veying him to the asylum, and to pay such weekly sum as the
justices direct for the maintenance of such person in the
iisylum. When the place of settlement cannot be ascertained Order on
the order will be made on the treasurer of the county, city, treasurer
borouofh or place where such person shall have been im- ^ county,
prisoned. If the person is possessed of property it will be settlement
applied towards the expense. not found.

The common fund of the union will be chargeable with the
cost of the lunatic's maintenance, &c. : 27 & 28 Vict. c. 29,
s. 5.

The Secretary of State had by warrant (under 3 & 4 Vict. Order
c. 54), s. 2, placed a lunatic prisoner with the keeper of a i^Ji'ier
private * asylum ; the guardians of a union during thirteen ^^^^ f ^7
years paid for the pauper's maintenance ; the Exchequer warrant.
Chamber on appeal reversed the decision of the Court of
Common Pleas, and held that no inference could be drawn
either that there had been an order of justices, or that an
arrangement had been made for the payment of the main-
tenance. J^^gge V. The Lampeter Union {Guardians), 41 L. J.
C. P. 204 ; L. R. 7 C. P. 366 ; on appeal, 43 L. J. C. P.
181 ; L. R. 9 C. P. 373 ; R. v. Oastler & Mew, 50 L. J. M. C.
C. A.

This order, it would seem, could not be made to act retro-
spectively : Bradford v. Wilts, 37 L. J. M. C. 129; L. R. 3
Q. B. 604 ; but it was held under 16 & 17 Vict. c. 97, s. 96,
that notwithstanding sec. 97, there was no limit to the retro-
spective character of such order, the guardians on whom it
was made must pay under it in respect of any number of
previous years' charges comprised in it.

After the expiration of the criminal's sentence the lunatic
may be removed to a county asylum ; 30 Vict. c. 12, s. 5.

MANDAMUS.

The writ of mandamus is a high prerogative writ, to the The writ,
aid of which the subject is entitled upon a proper case
previously shown to the satisfaction of the Court of Queen's
Bench, to which court it belongs exclusively, and is considered
*' as one of t\\Q flowers of that Court. " Tapping on Mandamus,
5; 3 Bl. Com. 110.

850

MANDAMUS.

Not granted
where
another
remedy.

Granted
"where
sessions
wrong
in law.

The writ will only be granted to prevent the failure of
justice : R. v. Norfolk JJ,, 1 D. & R. 75 ; R. v. Fowey
(Mayor), 2 B, & C. 584, Bac. Ab. Tit. "Mandamus." It will
issue upon the assumption that that which ought to have
been done at a time past has not been done : R. v. Gloucester
J J., 6 N. <fe M. 117; ie. V. Leeds, 4 T. R. 583: R. v.
Essex fj., 4 B. & Aid. 276 ; R. v. Sufolk J J., 6 B. & C.
110.

The granting the writ is discretionary in the court : R. v.
All Saints, Wigayi {Churchwardens), L. R. 9 Q. B. 317; 1
App. Gas. 611 ; 35 L. T. 381 ; 25 W. R. 128. The exercise
of this right cannot be questioned ; but the grant of a
peremptory mandamus is a decision upon a right, declaring
what is and what is not lawful to be done, and such decision
is subject to review : lb. ; R. v. Peterborough [Mayor)., 44 L. J.
Q. B. 85 ; 23 W. R. 343.

Where there is another specific legal remedy the court
will refuse to interfere by mandamus; R. v. Windham, Cowp.
378 ; R. V. The Bank of England, 2 Dougl. 524 ; R. v. Bristol
Docks, 12 East; 429 ; '^ R. v. Ponsford, 12 L. J. Q. B. 313 ; 1
D. (k L. 116; i?. V. Bishop of Chester, 1 T. R. 396. Where
there is a remedy by appeal the court will not grant the writ ;
Hutchins V. Chambers, 1 Burr. 580 ; R. v. Appleford, 2 Keb.
864 ; R. V. Cambridge, 8 Mod. 150 ; S. C. Lord Raymond,
1334 ; R. V, Eojst India Co., 4 M. & S. 279 ; R, v. Harrison,
16 L. J. M. C. 33 ; R. v. Lincolnshire, 4 B. & C. 855 ; and see
R. V. Hull and Selby Ry. Co., 6 Q. B. 70 ; 13 L. J. M. C. 257;
R. V. St. Katlierine^s Docks, 4 B. & Ad. 360. Or a right of
redress in equity; R. v. Marquis of Stafford, 3 T. R. 646.
But not so if only an indictment will also lie ; R. v. SeverUy
2 B. & A. 646 ; Ex parte Robins, 7 Dowl. P. C. 566.

Two circumstances must concur to authorise the issue of
the mandamus ; a specific legal right, and the absence of an
effectual remedy. If the remedy be doubtful the writ will
be granted ; R. v. The Nottingham Waterworks, 1 N. & P.
480 ; but where the statute does not allow a removal of the
proceedings by certiorari, the court will not indirectly bring
them under review by mandamus ; R, v. Yorkshii^e J J., 1
Ad. k E. 563 ; 3 Nev. k M. 802.

Where any preliminary step is necessary in order to give
the sessions jurisdiction to hear an appeal, and they come to
a wrong conclusion of law, not of fact, in respect to that pre-
liminary step, the court will interfere by mandamus ; per
Pattison, J., in R. v. Liverpool {Recorder), 20 L. J. M. C. 39
(see the cases R. v. Goodrich, 19 L. J. Q. B. 413, overruling

MANDAMUS. '^-^1

R. Y. Cumberland, 4 A. & E., and other cases collected in
Paley on Convictions, 4th ed. p. 66).

Where an inferior court declines to exercise a jurisdiction
imposed on it by law, the Queen's Bench will enforce its pro-
ceeding by mandamus ; when it has acted, its judgment
can only be reversed in that court on a case stated for its
opinion ; B. v. West Riding, 1 N. S. Ca. 247. But the court
v.ill not interfere unless it be apparent that gross injustice
will follow the refusal of the remedy ; R. v. SuffoUc J J. , 6 M.
& S. 58, per Lord Ellenborough ; R. v. Norfolk J J., 5 B. &
Ad. 992, per Lord Denman. See also Curtis v. Buss, 47
L. J. M. C. 35 ; 37 L. 'W 533 ; S. C. eo nom. Ex parte Curtis,

3 Q. B. D. 13. The writ will not be gianted to command
justices to do an act which may render them liable to an
action ; R. v. Buckinghamshire JJ. , 9 D. & R. 689.

If the justices have exercised their discretion and decided
the matter whether of law or fact in issue, the court will not,
on mandamus, review their decision, however erroneous the
decision may have been; R. v. Bolton (Recorder), 18 L. J.
M. C. 139 ; R. v. Bingham, 4 Q. B. 877; R. v. Blanshard,
13 Q. B. 318 ; 18 L. J. M. C. 110 ; R. v. Keiit JJ., 41 J. P.
263 ; and although the entry of the judgment may have
been made under a mistake ; R. v. Leicestershire JJ, I M. &
S. 442 ; R. v. Monmouthshire J J, 4 B. & C. 844 ; R. v.
Middlesex J J. (Slade's case), 2 Q. B. D. 516 ; 46 L. J. M. C.
225 ; 36 L. T. 402 ; 25 W. R. 610.

Should the sessions have only heard one side, and refused Where only
to hear the other, then the court would consider the case as f^® ^}
not having been heard, and would grant the mandamus ; R.
V. Gloucestershire JJ., 1 B. & Ad. 1 ; R. v. Caimarvon JJ.,

4 B. & Aid. 86 ; and see R. v. Worcestershire JJ., 1 Chit. R.
649. But the court will not call the sessions to rehear a
case, ib.

Where a court of quarter sessions or justices in petty
sessions refuse to entertain a complaint, &c., on the ground
that they have no jurisdiction, mandamus will be granted
calling on them to hear the case ; R. v. West Riding ( York-
shire), 1 N. S. C. 247; R. v. Cumberland, 3 M. & S. 192,
194; 4 A. & E. 695; R. v. Kent, 14 East, 395; see also
Luton Board of Health v. Davis, 29 L. J. M. C. 173 ; 2 E. &
E. 678. Where the justices declined to issue a distress
warrant on nonpayment of the local rate, a mandamus issued
commanding them to act ; and see R. v. Essex, 36 L. T. R. 554.

Where a rate is bad on the face of it, the court will not
grant a mandamus to justices to issue a summons against a

352 MANDAMUS.

defaulter ; R. v. Byron, 12 Q. B. 321 ; 17 L. J. M. C. 134 ;

R. V. Wilkinson, 3 N. S. Ca. 180. That objection would go
to the primary jurisdiction of the justices, and the objection
would be one involving a mere right of appeal ; Hutchin v.
Chambers, 1 Burr. 580.
Where an Where the sessions have entered an appeal and respited it
appeal has to a subsequent sessions, it cannot be objected at the subse-
ente ed qiient sessions that no sufficient notice had been given, or
that it had been improperly respited, and that they had no
jurisdiction to hear the appeal ; on refusal to hear the appeal
mandamus was granted, as the sessions having once received
and adjourned the appeal they were bound to try it ; R. v.
Hertfordshire J J., 4 B. & A. 561 ; R. v. Wiltshire JJ., 8 B.
<fe C. 380; but see R. v. Oxfordshire JJ., 1 M. & S. 446.
Where on an appeal against a conviction it was ascertained,
at the subsequent sessions, that the appellant had not
entered into the statutable recognizance, and without which
they had no jurisdiction ; in that case the mandamus was
refused. In the first two cases the session had a discretion
to exercise in receiving the appeal; in R. v. Oxfordshire they
had not, it was in that instance a question of jurisdiction.

After a rate had been allowed it could be abandoned by

the overseers on appeal ; and if the justices, acting on the

abandonment, refused to receive the appeal, mandamus

would be granted to try it ; R. v. Cambridgeshire JJ.^ 2 Ad.

& E. 373.

Where rule Mandamus will be granted to hear an appeal where the

of sessions sessions have refused to hear when acting under a rule of

not justi- sessions not justified by the statute, or which is inconsistent

therewith; see R. v. Norfolk JJ., 5 B. & Ad. 900; R. v.

Surrey J J., 3 N. S. C. 531 ; R. v. Pawlett, L. R. 8 Q. B. 491 ;

R. V. Lincolnshire JJ., 3 B. & C. 548.

Not where But where a reasonable practice of sessions requires notice

^^^ of appeal the court will not interfere ; R. v. Salop JJ., 2 B.

reasonable. ^ ^ gg^ . ^ ^^ Monmouthshire JJ., 3 Dowl. P. C. 306 ; R.

V. Montgomeryshire JJ., 2 N. S. Ca. 78 ; R. v. Essex, 2 Chit.

385.

What notice ought to be considered reasonable Lord
Denman, C. J., held must depend on the usual practice of
the sessions ; R. v. Watts, 7 A. & E. 470 ; see also Re Blues,
5 E. & B. 291 ; 24 L. J. M. C. 138. But of the reasonable-
», ness of the rule Lord Ellenborough claimed to exercise

*'a visitorial jurisdiction;" R. v. Wiltshire J J., 10 East,
404. And Parke, J., in Yorkshire W. R. JJ., 5 B. & Ad.
667, 671, said, "the sessions are the judges of what is

MANDAMUS. 353

reasonable notice, hut not the sole judges, and therefore this
court may interfere with their decision upon it. They are
by law to hear appeals only on reasonable notice of which we
as well as they are judges. It is not correct to say this
court sets its discretion against theirs ; " and the sessions
were held to be wTong in requiring notice of the respite of
the appeal.

In R. V. Monmouthshire J J., 1 Har. & W. 1 11 ; 3 Dowl. P. C.
30G ; upon an application for a mandamus to justices to enter
continuances and hear an appeal where the sessions had
declined to hear a case, fourteen days' notice required by the
rules of the sessions not having been given of the respiting
the appeal, Pattison, J., held "that it was perfectly discre-
tionary with the sessions as to what notices they would
require in cases of respited appeals ; the notice did not seem
to be illegal or so absurd as to require the court to overthrow
it." So also Wightman, J., in R. v. Montgomeryshire JJ., 2
N. S. Ca. 78 ; 14 L. J. M. C. 142 ; 3 D. & L. 119 ; refused to
interfere where he considered the rule, though unnecessary,
yet not so unreasonable as to call for any interference by
mandamus. On the other hand, in R. v. Surrey, 18 L. J.
M. C. 175 ; 3 N. S. Ca. 531 ; on the sessions refusing to hear
a respited appeal because an eight days' notice of the entry
and respite had not been given to the respondents, in accor-
dance with a rule of sessions, Erie, J., held that the sessions
had no poiver to make such a rule, adding a new condition to
the right of appeal ; and as all the notices required by the
general law had been given, he granted the mandamus com-
manding the sessions to enter continuances and hear the
appeal ; see R. v. Staffoi^dshire J J. (a), 5 B. & Ad. 990 ;
R. V. Rawlett, L. R. 8 Q. B. 491 ; R. v. Norfolk, 5 B. &
Ad. 999.

A rule requiring the order or conviction appealed against
to be filed on the entry of the appeal, with the clerk of the
})eace on the first day of sessions, is inconsistent with
4 (fc 5 Will. 4, c. 76, s. 79> which requires the filing of the
copy only ; and on which Coleridge, J., said, the sessions
had no right to put such a condition on the appeal : R. v.
Yorkshire W. R. JJ., 2 Q. B. 705.

The rules of practice for sessions as to time, &c., must be Rules as to
precise and clear ; or otherwise upon a refusal to entertain time must
an appeal grounded on the non-compliance with such rules, ^® precise,

■^ ° ^ 'or writ

may go.
(a) These cases w^ere prior to the year (1849), in which R. v.
Baiues' Act, 12 & 13 Vict. c. 45, Surrey was decided.

354

Manbamxjs.

Q. S. deci-
sion on
amend-
ments final.

So as to
recogni-
zances.

Adjourn-
ment dis-
ci etiouary.

Where

sessions
bound to
gi-ant costs

To issue
process.

the court will grant a mandamus for a hearing : 7?. v. Derby-
shire, 22 L. J. M. C. 31 B. C.

By 12 tk 13 Vict. c. 45, s. 9, the decision of the Court of
General or Quarter Sessions of the Peace upon the hearing
of any appeal, as to the amending or refusing to amend
any order or judgment of a justice or justices appealed
against, will be final, and will not be liable to be reviewed
in any couii; by means of a writ of certiorari or mandam\is
or otherwise. (Similar provisions as to orders of removal,
11 it 12 Vict. c. 31, s. 7, and lunacy orders, 16 & 17 Vict.
c. 97, s. 116.)

On amendments made by the sessions, their decision is
iBnal ; see R. v. Riu/ton of the Eleven Towns, 30 L. J, M. C.
229 ; R. V. Llangeimey, 32 L. J. M. 0. 265.

And by the same sec. 9, the decisions of the general or
quarter sessions upon the hearing of any appeal as to the
substitution of any new recognizance or recognizances as
aforesaid shall be final, and shall not be liable to be reviewed
in any court by means of a writ of certiorari or mandamus, or
otherwise.

Where the question of adjournment is discretionary witli
the sessions, and not determinable by any statute the court
will not interfere : R. v. Monmouthshire J J., 1 B. & Ad. 895;
R. V. Staffordshire J J., 2 Dowl. N. S. 353 ; R. v. Eijre,

26 L. J. M. C. 121 ; Ex parte Becke, 3 B & Ad. 704 ; R. v.
Lancashire JJ.^ 3 N. S. C. 42 ; R. v. Warwickshire, 28 L. J.
M. C. 249 ; R. v. Skircoat, ib, 224 ; R. v. Sussex, 34 L. J.
M. C. 69.

In some instances the justices are bound by statute to
grant the costs of an appeal, and upon refusal mandamus
will issue to command the sessions to enter the continuances
for the purpose of making their order for costs; as cost of
appeal, " authorised and required," under the Highway Act,
1845, 5 & 6 Will. 4, c. 50, s. 90; R. v. Yorkshire W. R.
31 L. J. M. C. 271.

Mandamus will be granted to compel the sessions to issue
process to enforce an order of the Court after unreasonable
delay: R. v. Warwickshire, 2A. &E. 768;11&12 Vict,
c. 44, s. 5.

As to proceedings in lieu of mandamus to justices out of
sessions, see 11 & 12 Vict. c. 44, s. 5.

Application for the mandamus should be made in the first
term : ^. v. Yorkshire W. R. 1 G. & D. 706; R. v. Richmond,

27 L. J. M. C. 197.

When mandamus has issued to sessions to enter con-

MARKETS AND FAIRS. 855

tinuances, and hear an appeal, application for costs incurred
in applying for and issuing the mandamus should be made
within two terms after mandamus has been obeyed : R. v.
Kent JJ., 36 L. J. M. C. 130.

MARKETS AND FAIRS.

10 Vict. c. 14.

Before a market or fair can be opened for public use, the Notice of
undertakers, that is, the persons authorized by a special opening a
Act to construct or regulate the market or fair, must give ^^^^^
ten days' notice of the time when it will be opened in some
newspaper, circulating within the limit of the special Act,
and by handbills posted conspicuously within those limits ;
sec. 12.

Appointment of days for holding the market ; sec. 14.

After the market is opened for public use, any person. Selling
other than a licensed hawker, selling or exposing for sale "^"'•'V^"^
within the prescribed limits, except in his own dwelling- \q\\^^
house or shop, any article on which a toll is authorized to
be taken in the market, will be liable to a penalty not
exceeding 405. ; sec. 13.

Exposing unwholesome meat or provisions in the market, Exposing
renders the person liable to a penalty not exceeding £5 for ^^^*
each offence. And such unwholesome meat or provisions
may be seized by the inspector ; and every person hindering
him in his duty, will be liable to a penalty of c£5 for every
such offence; sec. 15.

Every person obstructing a duly appointed person super- Obstruct-
intending the market or fair, and keeping order therein, ^"g officer.
will be liable to a penalty not exceeding 40s. ; sec. L6.

Each vendor is bound on demand to weigh or measure Vendor to
every article sold by the w-eights and scales or measures weigh on
provided by the imdertakers ; and the person appointed ^^^^'
nmst weigh or measure such article, or either party niay be
liable to a penalty of not exceeding 40s.; sees. 22, 23.

Sees. 24 — 25 provide for the weighing of carts, under
penalties of 20s., and against the frauds of the drivers, under
l)enalties of £5 ; sec. 28. Against frauds by sellers or
buyers in weighing, under penalty of .£5 (a); sec. 29. Frauds

(a~) See Weights and Measures Act, 1879.

35G

THE MERCHANT SHIPPING ACTS.

by machine-keepers, under a like penalty; sec. 30. Frauds
by other parties, under a like penalty.

Bye-laws. Under sec. 42, the commissioners have power to make
bye-laws, which, under sec. 44, if the allowance is not
specially regulated by the special Act, will not come into
force until allowed by the parties at quarter sessions, if the
market be in England or Ireland, and in either case approved
by the Local Government Board.

Appeal. The appeal clauses of the Railway Clauses Consolidation

Act, 1845, are incorporated with the Market and Fairs Act,
and clauses with respect to the recovery of damages not
specially provided for, and penalties ; and in respect to the
determination of any other matter referred to justices ;
sec. 52. See also post, sec. 32, Sum. Jmis. Act, 1879, and
observations thereon.

THE MERCHANT SHIPPING ACTS.

Limit of
time for
prosecu-
tions.

Offences
amounting
to misde-
meanor—
penalty.

The Merchant Shipping Act, 1854, 17 <fe 18 Vict. c. 104,
amended and consolidated the Acts relating to merchant
shipping, under which (and also under the Merchant Shipping
Acts) a large class of offences are provided against, and on a
summary conviction therefor the party aggrieved will have
his appeal to the quarter sessions under sec. 518, sub-sec. 4,
Merchant Shipping Act, 1854.

Sec. 525 Merchant Shipping Act, 1854, limits the time
for instituting summary proceedings under the Act to six
months after the commission of the offence ; or, if both or
either of the parties to such proceeding (see Austin v. Olsen,
L. R. 3 Q. B. 208 ; 37 L. J. M. C. 34 ; 17 L. T. 537) be out
of the kingdom during such time, the proceedings must be
commenced within two months after they both happen to
arrive, or be at one time within the kingdom (sub-sec. 1) (a) ;
see Austin v. Ohen^ L. R. 3 Q. B. 208 ; 37 L. J. M. C. 34.

By sec. 518 (6), sub-sec. 2, every offence under the Act
declared to be a misdemeanour shall be an offence punishable
by imprisonment for any period not exceeding six months,
with or without hard labour, or by a penalty not exceeding

(a) Sub-section 2 is a similar
provision in reference to an
offence committed in the British

possessions.

{V) Sub-section 1 provides for
the payment of costs.

THE MERCHANT SHIPPING ACTS. 357

£100 ; and may be prosecuted in a summary manner instead
of being prosecuted as a misdemeanour.

And by sub-sec. 3 the same may be prosecuted summarily
before any two or more justices of the peace as to England,
as directed by 11 & 12 Vict. c. 43 (a), the provisions in which
Act are to be applicable to prosecutions under the Merchant
Shipping Act.

By sub-sec. 4, in all cases of summary convictions in Appeal
England where the sum adjudged to be paid exceeds (6) £5, or >^'here
the period of imprisonment exceeds one month, any person P^'^'^^l^ ^
who thinks himself aggrieved by such conviction may appeal q^. imprir
to the next court of general or quarter sessions, holden not sonment
less than twelve days after the day of such conviction for the one month,
county, city, borough, liberty, riding, division, or place
wherein the case has been tried, provided that such person
shall give to the complainant a notice in writing of such
appeal, and of the cause and matter thereof, within three
(lays after such conviction, and seven clear days at the least
before such sessions ; and shall also either remain in custody
until the sessions, or enter into his recognizance with two
sufficient sureties before a justice of the peace conditioned to
appear at the sessions, try the appeal, and abide the judg-
ment of the court, upon which he will be discharged from
custody. The sessions are to hear and determine the appeal Judgment,
and make such order therein, with or without costs, as to
the court may. seem meet ; and in case of the dismissal of
the appeal, or the affirmation of the conviction, shall order
and adjudge the offender to be punished according to the
conviction, and to pay such costs as may be awarded, and
shall, if necessary, issue process for enforcing such judgment.
See also as to an election to appeal under the Summary Juris-
diction Act, 1879, post, Tit. Summary Jurisdiction Acts.

The following are the offences under the Merchant Ship- Offences,
ping Acts ; they are necessarily referred to in a concise form.
In each case the extreme penalty is stated, and must be Penalties,
understood as "wo^ exceeding^' the amount specified where a
fine is imposed ; or not exceeding the time where a term of
imprisonment is mentioned,

(a) See MerchaDt Shipping Act, s. 65.
1855, 18 & 19 Vict, c. 119, s, 18 ; (b^ See ante, p. 93.

Merchant Shipping Act, 1862,

358 THE MERCHANT SHIPPING ACTS.

Part I.

Under the Merchant Shipping Act of 1854 : —

Sviper- Sec. 13. — Any person refusing or neglecting to produce

vision by i\^q ofi&cial log-book of the ship when demanded by an
o icia s. authorised officer ; or impeding the master of the crew ; or
knowingly misleading the officer authorised to ask an expla-
nation regarding the ship ; penalty, <£20.

Sec. 41. — A shipbuilder wilfully making a false statement
in a certificate ; penalty, XI 00.

Part II.

Registry of Sec. 45. — A master neglecting to register (a) change of

ships. ownership of a ship; penalty, £100.

Sec. 49. — A master neglecting to deliver up a provisional
certificate granted in substitution of a lost certificate (sec.
44) within ten days after the first subsequent arrival of the
ship at her port of discharge ; penalty, .£50.

Detaining Sec. 50. — Any person retaining possession of a ship's certi-

certificate. ficate, the same not being subject to any right of detention
by reason of any title, lien, &c., and refusing on request to
deliver it up to any registrar, officer of customs, or other
person legally entitled to require such delivery, such person
may on warrant be examined before a justice touching such
refusal, and if no reasonable cause be shown for such deten-
tion ; penalty, £100 : if the certificate be lost, the party
will be discharged : see Arkle v. Henzell, 27 L. J. M. C. 110 ;
Wiley V. Crawford, 2 L. T. 597 ; affirmed in error, 4 L. T.
653. The master, whether co-owner or not, can have no
lien on the certificate or ship's registry in case of a wrongful
dismissal by the managing owners : The St. Olaf 35 L. T.
Adm. 428.

Using Sec. 52. — The master or owner using an improper certifi-

improper gg^^g^ ^y^^^ qj^q ^q^ legally granted for the use of the ship ; a

certificate, niisdemeanour : see secT 518, sub-s. 2.

Notice of Sec. 53. — Where the certificate is actually or construc-

(a) As to the registration, see Vict. c. 110, s. 6.

sec. 18 ; see also The Andalusia n, A ship built in order to be

47 L. J. P. D. & A. 65 ; L. E. 3 sold to a foreigner need not be

P. D 182. registered: Union Bank of Lou-

As to name of ship, see Mcr- don v. Lenanion, 3 C. P. D. 243 ;

chant Shipping Act, 1871, 34 cV: 35 47 L. J. C. P. 409, C. A.

THE MERCHANT SHIPPING ACTS. 359

lively lost, or the ship ceases to be a British ship, immediate lost cer-
uotice is to be given thereof to the registrar at the port of tiftcate.
registry ; every owner or master making default, penalty,
£J00.

Sec. 81, snh-s. 11. — If upon a sale made to an unqualified Certificate
person without production of the certificate of sale to some
registrar or consular ofiicer (sub-s. 10), no title will be given
on the sale ; and the party on whose application the certifi-
cate was granted, and the persons exercising the power, will
each incur a penalty of £100,

aS'^c. 103, suh-s. 2. — The master or owner carrying or per- National
mitting any papers to be carried on board a ship with intent character
to conceal her British character, or to assume a foreign P*

character, or with intent to deceive ; penalty, forfeiture of
the ship to Her Majesty ; and the master, if he commits or
is privy to the offence, will be guilty of a misdemeanour :
see The Sceptre, 35 L. T. Adm. 429 ; The Amiandale, 46 L.
J. Adm. 68 ; 2 Adm. D. 179 ; aff. on app. 47 L. J. Adm. 3 ;
2 Adm. D. 218; 37 L. T. 139.

Sub-s. 4. — A person making a false declaration of owner- Making
ship; a misdemeanour: see also sec. 103(a). Merchant false decla-
Shipping Amendment Act, 1855, 18 & 19 Vict. c. 91, s. 9. ^^*^^^"j/;^

Sec. 105. — Hoisting or assisting in hoisting unauthorised J^|^^^*^'^P-
colours without warrant ; penalty, £500. authorised

colours.
Shipping Officers.

Sec. 127. — A shipping-master, his deputy, clerk or servant Hiring
demanding or receiving any remuneration on the hiring of a seamen,
^eaman ; penalty, £20.

Sec. 136.— No foreign-going ship or home trade passenger Certificated
ship to go to sea without the master and mates are certified officers to
officei*s ; and no ship of 100 tons burden or upwards shall go P*
to sea without at least one certified otficer besides the master ;
any master or mate going to sea without such certificate, or
any person employing an uncertified master or mate ; penalty,
£50.

Sec. 140. — Making false representations to obtain a certifi-
cate ; forging, altering, or fraudulently using or lending a
certificate ; a misdemeanour.

Sec. 143. — All indentures of apprenticeship to the sea- Appreu-
service are free of stamp-duty (a); and the person to whom ticea.

(a) See B. V. Hamstall Ridgn'are, 3 T. K. 380 ; R. v. Totnesg,
11 Q. B. 80.

3G0 THE MERCHANT SHIPPING ACTS.

the boy is bound shall within seven days transmit the sam^
to the registrar-general of seamen or to some shipping master
to be recorded ; provision is also made for recording the
assignment of the indentures, cancellation, death, or deser-
tion of the apprentice ; failure to comply with this sec,
penalty, £10.

ISec. 145. — The master of every foreign-going ship is to
bring the apprentice and indenture before the shipping-
master before whom the crew is engaged ; in default,
penalty, £5.

Sec. 147, subs. 1. — Persons engaging seamen or appren-
tices not being licensed (sec. 146) or duly authorised ;
penalty, £20. See Hughes v. Sunderland, 46 J. P. 6.

Sub-s. 2. — Employing unlicensed persons (except as in
sub-s. 1) to engage crew ; penalty, £20 ; and if licensed,
forfeiture of license.

Sec. 148. — Any person receiving or demanding from any
seaman seeking employment as a seaman or apprentice,
other than lawful fees ; penalty, £5.

Sec. 152. — Any master nmking a false statement by in-
dorsement on a running agreement on its final termination ;
penalty, £20.

Sec. 157. — No master to carry to sea any seaman without
an agreement ; penalty, £5.

Sec. 158. — Notice to be given by the master of a foreign-
going ship to the nearest shipping-master of any change in
the crew; penalty, £5.

Sec. 160. — Seamen engaged in foreign ports are to be
shipped with the sanction and in the presence of the consul ;
penalty, £20.

Sec. 161. — Sets out the rules to be observed as to the
production of agreements and certificates of masters and
mates of foreign-going ships ; in default, penalty, £5.

Sec. 162. — Is the like as to home trade ships.

Sec. 164. — Every person who fraudulently falsifies an
agreement, or delivers a false copy thereof, a misdemeanour.
See sec. 518, sub-s. 2.

Sec. 166. — The master to post a copy of the agreement on
a part of the ship accessible to the crew ; penalty in default,
£5.

Sec. 170. — The owner or master discharging seamen or
paying their wages other than before a shipping master ;
penalty, £10. Seamen on a home trade ship may demand
to have their wages paid in like manner.

Sec. 171. — The master to deliver an account of the

THE MERCflANT SHIPPING* ACTS. 361

seaman's wages twenty-four hours before his discharge ;
penalty, £5.

Sec. 172. — Upon the discharge of any seaman, the master
is to sign his certificate of discharge; in default, penalty,
£10.

And such certificate retained by him shall be returned ; in
default, penalty, £20.

Sec. 174. — Every shipping master may hear and decide
questions between a master or owner and any of the crew,
which both parties agree in writing to submit to him (sec.
173); and under sec. 174 the owner or his agents are bound
to produce the log-book or other ship-papers; penalty on
neglect, £5.

Sec. 176. — On a discharge of a seaman the master is to
make a report of his conduct and qualifications to the
registrar-general : any person making a false certificate, or
fraudulently altering one; a misdemeanour, see sec. 518,
sub-s. 2. See R v. Wilson, 27 L. J. M. C. 230.

Savings Banks for Seamen,

Sec. 180. — Savings' banks for seamen may be established;
and by 19 & 20 Vict. c. 41, s. 17, the enactment is to apply
to seamen of the R. N.

Sec. iSOg (a). (See Seaman's Savings Bank Act, 1856, Forgery ;
19 & 20 Vict. c. 41, s. 6).— Every person who for the pur- *? show
pose of obtaining for himself or for another any money ^^^^^^^^
deposited in any savings' bank established under this Act
(1856), or any interest thereon, forges or assists in forging,
or procures to be forged, or fraudulently alters, assists in
fraudulently altering, or procures to be fraudulently altered,
any document purporting to show, or assist in showing a
right to any such money or interest ; and every person who
for the purpose aforesaid makes use of any such forged or
altered document as aforesaid, or who for the purpose
aforesaid gives or makes, or procures to be given or made,
or assists in giving, or making, or procuring to be given or
made, any false evidence or representation, knowing the
same to be false ; penalty, . as well being punishable with
penal servitude, or imprisonment for two years (on indict-
ment) : he may also be summarily prosecuted, and imprisoned,

(a) Sections 180 g. and 180 j. are introduced from the Seaman's
Savings Bank Act, 1856.

862

THE lyfERCHANT SHIPPING ACTS.

Criminal
procedure.

Master not
accounting
for money.

Forgery
to obtain
wages.

Leaving
apprentice
ou shore.

Receiving
diftresisecl
s>eanien on
board.

Seaman
leaving for
Her Ma-
jesty's
navy.

with or without hard labour, for any period not exceeding
six months.

Sec. 180. — All criminal proceedings under the Act (see
19 & 20 Vict. c. 41, s. 9) are to be conducted as those
under the Merchant Shipping Act, 1854 ; and all evidence
applicable under that Act will be applicable under this Act
— the Seaman's Savings Banks Act, 1856, s. 9.

jSec. 196. — Provides for the master taking charge of tEe
money or effects of a seaman placed in his charge ; penalty
treble the value of the money and effects not accounted for;
or if the value not ascertained, .£50.

Sec. 203. — Forging or altering a certificate, or making
false representations, in order to obtain wages ; penal
servitude for four years ; imprisonment, with or without
hard labour, for two years ; or on summary conviction, im-
prisonment six months, with or without hard labour.

Sec. 206. — A master or other person wrongfully leaving
behind, or forcing on shore any seaman or apprentice engaged
to return with the ship ; guilty of a misdemeanour.

Sec. 207 (cf). — The leaving a seaman or apprentice to be
discharged abroad, or left behind without the master's cer-
tificate; a misdemeanour (see sec. 518; sub-sec. 2).

Sec. 209. — The master is to pay the wages of the seaman
or apprentice left behind, and unable to proceed on the
voyage; penalty, £20.

Sec. 212. — Under certain circumstances (sec. 211) a
person in charge of a ship is bound to receive on board
distressed seamen for passage home (one for every fifty tons'
burden) ; every person failing or refusing to receive on board
his ship, or to give passage home, or subsistence to, or to
provide for such seaman or apprentice; penalty, ,£100, with
respect to each seaman or apprentice default is made.

Sec. 214. — Any seaman may leave his ship to forthwith
enter Her Majesty's navy : no stipulation to the contrary is
to be entered into the seaman's agreement ; penalty, £20.
(Leaving the ship to join Her Majesty's navy is not a
desertion. See p. 3^3.)

Sec. 215. — The seaman's clothes and wages are to be given
up on the seaman leaving his ship under sec. 214 ; penalty,
£20 (the wages are to be paid to the officer authorized to
receive such seaman into Her Majesty's service).

Sec. 220. — Every person making any false representation,

■ (a) As to seamen left in distress in this country, see 17 & 18 Vict.
c. 120, s. 16.

THE MERCHANT SHIPPING ACTS. 3C3

or forging any document, or uttering it, to obtain payment
of monies payable to seamen who have volunteered into
Her Majesty's navy (see sees. 215 — 219) ; a misdemeanour :
see sec. 518 j sub-sec. 2. ■

Sec. 221. — On complaint of three or more of the crew. Water
provision is made for a proper supply of water on board ; supply,
penalty on non-compliance, <£20.

Sec. 225. — The master is to keep on board proper weights Weights
and measures for the serving out the provisions ; penalty, for provi-
£10. ^^°^'-

Sec. 226. — No ship is to go to sea without the certificate Certificate
of the inspector of medicines that the ship is properly of medi-
provided ; penalty on owner or master in consequence, .£20. cmes on
The Merchant Shipping Act, 1864 (30 & 31 Vict. c. 127, ^''^'''^'
s. 4), lime and lemon-juice, and other anti-scorbutics, are to
be provided and kept on board a foreign-going ship ; penalty
on master or owner, £20. Merchant Shipping Act, 1854, Proper
s. 9, sufficient space is to be allowed for each man, and ^P^ce for
the space kept clear of cargo : the owner is responsible ; '^^"'
penalty, £20. (See the Colonial Shipping Act, 1868, 31 & 32
Vict. c. 129, s. 3.)

Sec. 230. — A foreign-going ship, carrying 100 passengers Medical
and upwards, is to carry a medical officer; penalty, £100. officer.

Sec. 232.— The master is to permit a seaman or appren- Complaints
tice to leave the ship (in custody, or otherwise), to make 9^ '^^^-"^ ^^
complaint to a justice, consular officer, or officer in com- •'^^^ ^^®'
mand of one of Her Majesty's ships, if he desires to make
complaint against the master, or any of the crew.

Protection of Seamen from Imposition.

Sec. 237. — Persons on board any ship not duly authorized,
about to arrive, and before arrival at her destination, before
her actual arrival in dock ; penalty, £20 : see Attwood v.
Cave, 1 Q. B. D. 134. Under 43 & 44 Vict. c. 16, s. 5, the
unauthorized person is restricted from being on board before
the seamen lawfully leave the ship at the end of their
engagement, or are discharged; penalty, £20, or imprison-
men?t for six months. This section provides for their being
warned off.

R 2

364 THE MERCHANT SHIPPING ACTS.

Discipline (a).

Sec. 239. — Any master, seaman, or apprentice, who by
wilful breach or neglect of duty, or by reason of drunken-
ness, does any act tending to the immediate loss, destruction
or serious damage of the ship, or endangering the life or
limb of any person belonging to or on board the ship ; or
who refuses or omits to do any lawful act proper and
requisite to be done by him for preserving the ship from
immediate loss, destruction, or serious damages, or for
preserving any person belonging to or on board the ship
from immediate danger to life or limb ; a misdemeanour :
see sec. 518, sub-sec. 2.

Sec. 242. — The Board of Trade may cancel the certificate
of any master or mate (for cause) ; and should the master or
mate make default in delivering the same to the Board, he
will commit an oftence with penalty, .£50.

Desertion.

Sec. 243. — Any seaman or apprentice engaged to the sea-
service committing any of the following offences may be
summarily punished ; but the section applies only to British
ships : Lear?/ v. Lloyd^ 3 E. & B. 178.

1. Deserting the ship (6) ; imprisonment for twelve

weeks, with or without hard labour, and forfeiture
of clothes and effects left on board.

2. Neglecting or refusing without reasonable cause to
■■: join his ship, or absenting without leave within

twenty-four hours before sailing from any port

(ji) These sections have refer- also The Ealing Grove, 2 Hagg.

ence to British ships only : 15 ; Button v. TJwm2)Son, L. E. 4

Leary v. Lloyd, 29 L. J. M. C. C. P. 330 ; as to leaving the ship

194. to join the E. N., see sec. 214.

(J)) A sailor who ieaves his Want of provisions has been held

ship on account of cruelty on the to be a justification for leaving

part of the captain does not com- the ship : The Castalia, 1 Hagg.

mit desertion : Prince Edward 59.

v. Trevellick, 24 L. J. Q. B. 9 ; 4 By a desertion the wages for
E. & B. 59 ; lAmland-^. Stephens, the whole voyage which was not
3 P]sp. 71. The seaman must completed at the time of the
leave the ship sine animo desertion are forfeited ; but not
revertendi, and without just the wages for any other corn-
cause : TJie Two Sisters, 24 L. J. pleted voyage : The Pearle. 5
Q. B. 12 J 2 W. Eob. 125. See Bob. Ad. 224.

THE MERCHANT SHIPPING ACTS. 3C5

either at the commencement or during the voyage,
or absenting at any time without leave and without
sufficient cause from his ship or from his duty, not
amounting to desertion, or not treated as such by
his master. Imprisonment ten weeks, with or
without hard labour ; also at discretion of justices
forfeiture of two days* pay ; and for every twenty-
four hours' absence either six days' pay, or any
expenses in hiring a substitute (a).

3. Quitting ship without leave befoi'e the ship is

secured ; forfeiture of month's pay (b).

4. Wilful disobedience to lawful commands ; imprison-

ment four weeks, and with or without hard labour
and forfeiture of two days' pay,

5. Continued wilful disobedience to lawful commands ;

imprisonment twelve weeks, with or without hard
labour; and (at the discretion of the Court) to
forfeit for every twenty-four hours' continuance of
disobedience or neglect either six days' pay, or the
expenses of the hiring a substitute.

6. Assaulting an officer ; twelve weeks' imprisonment,

with or without hard labour.

7. Combining to disobey lawful commands, or to neglect

duty, or to impede the navigation of the ship, or
the progress of the voyage ; imprisonment twelve
weeks, with or without hard labour.

8. Wilfully damaging the ship, or embezzling or wilfully

damaging any of her stores ; forfeiture of wages
equal to the amount of the loss sustained, and
imprisonment for twelve weeks, with or without
hard labour.

9. For any act of smuggling of which he is convicted,

and whereby loss or damage is occasioned to the
master or owner ; liability to reimburse the loss or
damage, and wages retained in satisfaction or on
account of such liability, without prejudice to
further remedy (c).

(a) See provisions as to the 2 W. Rob. 123.
ehip being unseaworthy or oyer- (<?) See as to making false

loaded when going to sea : Mer- representations to obtain Savings

chant Shipping Act, 1871, 34 & Bank deposits, infra, " Savings

35 Vict. Clio, s. 9. Banks," p. 361, 19 & 20 Vict. c. 41,

(i) See Maedonald v. Joplmg, s. 6 ; and 14 k, 15 Vict. c. 102, s.

4 M. & W. 225 ; TJie Two SUters, 55,

36G THE MERCHANT SHIPPING ACTS.

Apprehen- Sec. 246. — The master or mate, owner, ship's husband or

sion of de- consignee, may apprehend deserters ; but if such apprehen-

serter. g^^j^ j^g made on improper or insufficient grounds (a), the
party causing the apprehension will incur a penalty of £20
(the infliction of the penalty will be a bar to any action for
false imprisonment in respect of such apprehension).

Fine. Sec. 256. — Where a fine has been inflicted on a seaman

by a master under his agreement, this section regulates the
course of proceeding on the part of the master ; the fine is
to be deducted from the seaman's wages and paid over to
the shipping-master by whom the crew is discharged ; on
neglect, penalty six times the amount of the fine retained.

Enticing to Sec. 257. — Enticing a seaman or apprentice to desert;

desert. penalty, £10 ; wilfully harbouring the same; penalty, £20.
The offence will be complete, although there had been an
informality in the seaman's engagement : Aiistin v. Olsen,
37 L. J. M. C. 34 ; L. R. 3 Q. B. 208.

Surrepti- Sec. 258. — Any person obtaining a passage surreptitiously ;

tious penalty £20, or one month's imprisonment.

passage. ^^^^ 259 — Q^-^ ^ change of masters, the master is to hand

Change of ^^ -^{^ successor all the ship's papers relating to the naviga-
tion and crew; penalty on default, £100.

Crimes on the High Seas and Abroad.

Jurisdic- See. 267. — All off'ences committed against property or
"' person in or at any place, either ashore or afloat, out of Her

Majesty's dominions, by any master seaman or apprentice,
who at the time, or within three months previously, had
been employed in a British ship, will be liable to the same
punishments^ and be inquired into in the same way as if the
same had been committed within the Admiralty jurisdiction ;
and all costs of the prosecution be allowed.

Passage for ^^^^ 268 (6). — A master, on request of the British consular
officer, IS to receive and afford a passage and subsistence to
an offender and witnesses, and deliver the offender committed
to his charge into the custody of the police on arrival of the
ship in the United Kingdom or a British possession. On
failure to comply with this section, penalty £50.

(ff) A seaman may leave the as to a survey, see the Merchant

ship if the ship is not in a fit Shipping Act, 1871, s. 7.

condition to proceed to sea, or (/v) See Nelville v. De Wolfe,

her accommodation is insuf- -4 Ell. & B. 844 ; 24 L. J. Q. B.

ficient : 36 & 37 Vict. c. ^b, s. 9 ; 200.

oii'enders.

THE MERCHANT SHIPPING ACTS. 3G7

Sec. 274. — Master to deliver the shipping lists (sec. 273) Shipping
on arrival to the shipping-master ; in default, penalty £5. ^'^t^-

iSec. 274, providing for the registration of births and Registra-
deaths at sea, is repealed by 37 & 38 Vict c. 88, s. 54 ; f,^^"j^f ^^^^
sec. 37 of that Act directs how the returns are to be made deaths,
by the master or person having charge of the ship ; failing
to comply with those regulations, for each offence, penalty
£5.

Sec. 275. — Ship's lists of a home-trade ship are to be Ship's lists,
delivered to a shipping-master twice a year ; penalty, £o.

Sec, 276. — In case of a transfer of ownership, a ship
ceasing to be a foreign-going or home-trading ship, the ship's
lists are to be delivered to the ship-master of the port to
which she may belong; on failure, penalty £10. So also,
when practicable, and as soon as possible as regards a ship
lost or abandoned, the master is to make the like return,
and under a similar penalty.

Sec. 279. — On arrival in a foreign port, and remaining
thereat forty-eight hours, the master is to deliver to the
consular officer or officer of customs the agreement with the
crew, indentures, and assignments of apprenticeships, and
ship's documents ; on default, penalty .£20.

TJi£ Log-Booh

An official log-book is to be kept in a regulation form
(sees. 280, 282).

Sec. 284. — The following are offences in respect to the
official log-book : —

Subs. 1. — Not making the log-book as required ; penalty, £6.

Sub-s. 2. — Making an entry in the log-book of an occur-
rence happening previously to the arrival of the ship at her
j&nal port of discharge more than twenty-four hours after
arrival ; penalty, X30.

Sub-s. 3. — Wilfully destroying, mutilating or rendering
illegible any entry in any official log-book, or procuring or
assisting in making any false or fraudulent entry or omission
in such log-book, a misdemeanour; see sec. 518, sub-s. 2.

Sec. 285. — Entries in the official log-book are to be
received in evidence in any proceeding in any court of
justice^ subject to just exceptions. And the log-book is to
be delivered to the shipping-master on the discharge of the
crew (see sec. 286).

Sec. 287. — In case of the transfer of the ship or change of

368 THE MERCHANT SHIPPING ACTS.

emplojTiient, or loss or abandonment of a ship (as ante, sec.
276), the log-book is to be delivered or transmitted to the
shipping master of the port to which the ship belongs ; in
default, penalty £10.

Safety (a) and Prevention of Accidents.

Sec. 291. — (Merchant Shipping Act, 1871, s. 5); and see
also Merchant Shipping Act, 1873, 36 & 37 Vict. c. 85,
s. 4, directs the master to permit an authorised person to
take measurements to record the draught of a vessel {l>) ;
any master failing so to do ; penalty £5.

Sec. 292 gives rules to be observed as to the providing boats
and life buoys (see Merchant Shipping Act, 1873, s. 15); and by

Sec, 293. — If the owner appears to be in fault where
proper provision is not made in providing the requisite boats
and life buoys, and maintaining them ready for use, he will
incur a penalty of £100 ; and if the master, £50 (see Mer-
chant Shipping Act, 1873, s. 15).

Sec. 301. — Provides for the proper equipment of steam
ships, and on any steam ship going to sea without being so
provided, the owner (if in fault) will incur a penalty of
£100 ; and the master (if in fault) £50 (see Merchant
Shipping Act, 1876, s. 21).

Sec. 302. Any person overweighting the safety valve of
any steam ship, or beyond the limits fixed by the engineer
surveyor ; penalty £100, with any liabilities he may incur by
so doing.

Sec. 306. — Hindering a surveyor on his inspection of the
ship ; penalty £5.

Sec. 308. — Penalty on surveyor's receiving fees unlawfully,
£50; see Merchant Shipj)ing Act, 1876, s. 39.

Sec. 315. — No certificate is to be used after its expiration
(without reasonable cause) ; penalty £10.

Sec. 317. — The certificate is to be exhibited in a conspicuous
part of the ship ; penalty £10,

Sec. 318. — No passenger steamer (c) to proceed on her voy-
age without the certificate ; penalty £20 ; see sec. 44 et seq.

(a) Eegulations as to lights as may be directed by the Board

and signals, and penalties on neg- of Trade ; but if the scale is in-

lecting them, see 25 & 26 Vict. accurate and likely to mislead,

c. 63, ss. 25 — 28. the owner of the ship will incur

(6) See also the Merchant Ship- a penalty of £100.
ping Act, 1878, s. 3 (36 & 37 Vict. c. (<:0 Carrying more than 12

85), The measurements are to be passengers. Merchant Shipping

painted on some part of the ship Act, 1876, s. 16.

THE MERCHANT SHIPPING ACTS. 369

Sec. 319. — Having on board a passenger steamer a greater
number of passengers than allowed by the certificate ; the
owner or master will incar a penalty of .£20 ; and also in
addition 5s. for every passenger over and above the number
allowed, or, if the fare of any on board exceeds 5s., not ex-
ceeding double the amount of the fares of all the passengers
who are over and above the number so allowed, such fares to
be calculated at the highest rate of fare payable by any
passenger on board.

Sec. 320. — Forging or altering a certificate under the
fourth part of the Act, — a misdemeanour; see sec. 518,
sub-s. 2.

Sec. 321. — The owner, master, or engineer, wilfully refus-
ing or neglecting to give information of the build of the
steam ship to the inspecting surveyor ; penalty £5.

Passengers,

Sec. 323 is repealed by the Merchant Shipping Act, 1862, Damaging
25 & 26 Vict. c. 63, s. 2 ; and by the 3oth sec. of that Act machinery,
various provisions are enacted for the proper conduct of the
passengers with minor penalties ; and by sec. 36, any person
on board a steamer wilfully damaging the machinery, or ob-
structing, impeding, or molesting the crew in the execution
of their duty ; for every such offence, penalty <£20 ; and by
sec. 37, the master or other officer of any duly surveyed
passenger steamer may arrest such oflfender : see Merchant
Shipping Act, 1862, s. 37.

Sec. 324. — Any person having committed any offence
under the two preceding sections refusing to give his name
and address ; penalty .£20, to be paid to the owner.

Accidents.

Sec. 326. — Accidents to a steam ship, occasioning loss of To be re-
life, or serious injury to any person, or material damage P»^'t«'' to
affecting her seaworthiness or efficiency, either in her hull or rp^°.^J*^ ^
machinery, are to be reported to the Board of Trade within
twenty-four hours, or as soon thereafter as possible ; on neg-
lect by master or owner, penalty £50.

Sec. 327 is repealed by Merchant Shipping Act, 1873, s.
33 ; and by sec. 22 of that Act, the managing owner, or '
ship's husband where there is no managing owner, is to give
notice to the Board of Trade as soon as conveniently may bo
of the apprehended loss of any British ship,

£3

370 THE MERCHANT SHIPPING ACTS.

Naval Courts.

Sec. 266. ■ — Proceedings under naval courts are to be re-
ported to the Board of Trade under sec. 265 ; any person
wilfully preventing or obstructing the making such report,
for each offence, penalty <£50, or twelve months' imprison-
ment with hard labour.

Sec. 328. — All collisions to he entered on the log ; penalty
£20.

Carrying Dangerous Goods.

Sec. 329, providing against the carrying dangerous goods,
is repealed by Merchant Shipping Act, 1873, s. 33 ; and by
sec. 23 of that Act, the carrying of dangerous goods is re-
stricted under a penalty of £100 ; but if the party shows
he was only acting as agent, and was not aware, and did not
suspect, and had no reason to suspect, that the goods shipped
by him were of a dangerous nature, the penalty will not
exceed £10.

Pilot-Boats.

Sec. 346. — Every pilot-boat is to be distinguished by
characteristics enumerated in this section ; in default,
penalty £20 for each default.

Sec. 347. — Pilot is to exhibit his flag when in boat not a
pilot-boat ; penalty £50.

Sec. 348. — A ship not having a licensed pilot on board,
displaying a flag as a qualified pilot's flag ; penalty £50,
to be recovered of the owner or master.

Sec. 350.-^Pilot to keep and produce pilot regulations ;
j)enalty £50.

Sec. 351. — Pilot to produce licence; penalty £10.

Conipidsory Pilotage.

Sec. 353. — A master of any unexempted ship (sec. 379), in
a district where the employment of licensed pilots is compul-
sory, navigating his ship after a licensed pilot has offered to
take charge thereof, or has made signal for that purpose, and
without having a pilotage certificate enabling him so to do ;
or employs or continues to employ an unqualified person (sec.
361) to pilot her; for any such offence, penalty, double the
amount of pilotage demandable for the conduct of the ship.

THE MERCHANT SHIPPING ACTS. 371

Sec. 376. — Penalty on masters of ships employing un-
licensed pilots, or acting as pilots; penalty, £5 for every
50 tons' burden of the ship.

Sec. 379. — Exemptions.

1. Coasting vessels in the United Kingdom (a).

2. Ships not over 60 tons.

3. Ships trading to Boulogne, or to any place in Europe

north of Boulogne.

4. Ships laden with stone from the Channel Islands,

5. Ships navigating within the limit of the port to

which they belong.

6. Ships passing through the limits of any pilotage

district, not being bound to any place within the
district.

Sec. 354. — Home-trade passenger ships are to employ
qualified pilots, unless they have certificated masters or
mates ; on failing, penalty <£100 ; see Tlie Lion, L. R. 2
C. P. 525 ; The Temora, Lush. 17 ; The General Steam JVan-
gation Co. v. The London dh Edinburgh Shipping Co., 2 Ex. D.
467. As to the granting the certificates, see sec. 355 ; and
see Hossack v. Gray, 34 L. J. M. C. 209 ; 12 L. T. 701.

Sec. 358. — A qualified pilot receiving, or a master offering
a pilot an unauthorised rate of pilotage, whether greater or
less {b); penalty <£10.

Sec. 359. — Making a false declaration to a pilot of the
draught of the ship ; penalty £10.

Offences hy Pilots.

Sec. 361. — An unqualified pilot acting as pilot; penalty
£50.

Sec. 365. — A qualified pilot being :

1. Interested in a public-house, or in the sale of wine

and spirituous liquors, tobacco or tea ;

2. Or who commits a fraud on the customs excise laws ;

3. Or is guilty of corrupt practices in reference to

ships ;

4. Or lends his licence ;

5. Or acts as pilot while suspended ;

(a) A foreign going vessel (Z>) The pilot may charge for

casually employed in taking a other than pilotage services : see

cargo between London and Liver- The Ifcbe, 2 W.Rob. 246; I7i€

pool is not within this exception : General Palmer, 2 Hagg. 176,
The Lloyds, 32 L. J. Adm. 197.

72 THE MERCHANT SHIPPING ACTS.

6. Or when intoxicated ;

7. Or unnecessarily causes expense of pilotage ;

8. Or refuses or wilfully delays to take charge of any

ship (unless prevented by illness or other reason-
able cause) (a).

9. Or unnecessarily cuts or slips the cable ;

10. Or refuses to conduct the ship into port, except on

reasonable ground of danger to the ship ;

11. Or quits the ship before his service is performed,

without the consent of the master ; —

besides any liability in an action for damages ; penalty,
.£100, and suspension or dismissal by the pilotage autho-
rity : any person who procures, abets, or connives at such
offence, the like liabilities.

Sec. 366. — If the pilot by a wilful breach of duty, or under
drunkenness, does any act tending to the immediate loss,
destruction, or serious damage of the ship, or to the en-
dangering the life or limb of any person on board the ship,
or refuses or omits to do any act for the preserving the ship
from damage, &c., or life or limb, he will be deemed guilty
of a misdemeanour (see sec. 518, ante, p. 356), and liable to
suspension or dismissal.

Sec. 367. — A pilot doing wilful injury to a ship while in
charge ; penalty, <£100 ; suspension or dismissal, as well as
liable for damages.

Damage to Lights, Buoys, dhc.

Sec. 414. — Wilfully injuring any lights, buoys, or beacons;
penalty, £50, and the expense of making good the damage.
Sec. 415. — Exhibiting false lights; penalty, .£100.

Wrecks (b).

Sec. 441. Disobeying the directions of the receiver of the
district as to stranded vessel, or the saving of lives belonging
thereto ; penalty, £30.

Sec. 442. — The receiver may summon such men as he may
deem right to assist him at any such wreck, and require the
master to assist, and demand the use of waggons, &c. Any
person refusing to comply with the receiver's request;
penalty, £100.

(fl^) See TAtf FredencUon, 1 W. Rob. 16.
(5) Seei?o#, tit. "Wreck."

THE MERCHANT SHIPPING ACTS. 373

Sec. 443. — Articles washed ashore, or taken from a wrecked
vessel, are to be delivered to the receiver; penalty, .£100 (a).

Sec. 447. — Under sec. 446 power is given, in case of a
ship being in distress, to take carriages, &c., over lands
adjoining to render assistance, and by this section any owner
or occupier of such land hindering or preventing such pas-
sage of carriages, &c., or the deposit of the cargo of the ship
on his land, will incur a penalty of <£100.

Sec. 450. — Any person finding or taking possession of a
wreck, and not giving notice to the receiver ; penalty, £100.
See The Zeta, L. R. 4 Adm. & Ecc. 460, where a barge drift-
ing in the Thames was not held to be a wreck. As to the
meaning of " wreck," see Barry v. Anaud, 10 A. & E. 646 ;
Falmer v. Bouse, 3 H. & N. 503 ; 27 L. J. Ex. 437, where a
raft of timber was held not to be " the subject of^^a wreck."

Sec. 478. — Persons plundering a wreck, obstructing the
saving wrecked property, secreting the same, or endeavouring
to board the wreck without leave of the master ; penalty,
£50. The master may repel by force ; and see 24 <fe 25
Vict. c. 96, ss. 65, 66; 24 & 25 Vict. c. 100, ss. 17, 37.

Dealers in Marine Stores.

Sec. 480. — Every dealer in marine stores of any descrip-
tion (the class of which is there enumerated) is to have his
name, with the words " dealer in marine stores/' painted
over his warehouse, under penalty of £20.

He is to keep books in which he is to keep an account of
all transactions in reference to marine stores done by him ;
penalty, first offence, £20 ; every subsequent offence, £50.

He shall not purchase marine stores from any person
under apparently 16 years of age ; penalty, £5 for the first
offence ; every subsequent offence, £50.

He is not to cut up any cable, or similar article exceeding
five fathoms in length, or unlay the same into twine or
paper stuff, on any pretence whatever, without a permit of a
justice (sec. 481), or advertising a notice thereof (sec. 482);
penalty, first offence, £20; every subsequent offence, £10.

Sec. 482. — Before any cable or other like article can be
cut up or unlaid by any marine store dealer, he must for
one week have published in some newspaper published
nearest the place where he resides, one or more advertise-
ments of his having obtained a justice's permit to do so, and

(a) The receiver has full power to suppress plunder, sec. 444.

374

MUNICIPAL CORPORATION ACTS.

state the place where the same is deposited, and the time
when it is to be cut up. Any person suspecting the cable to
be his may obtain a warrant for inspection, and he may
require production of the cable or other like article men-
tioned in the permit, and his books kept as a marine store
dealer : on his default to comply with this section ; penalty,
first offence, .£20 ; every subsequent oifence, £50.

Sec. 483. — Anchors are to be marked by the manufac-
turers; penalty, £b.

MUNICIPAL CORPOIIATION ACTS.

Appeal
against a
borough
rate.

Any person who may think himself aggrieved by any
borough rate, may appeal to the recorder at the next
quarter sessions for the borough in which such rate has been
made ; or in case of no recorder for the borough, to the
justices at the next court of quarter sessions for the county
within which such borough is situate, or whereunto it is
adjacent ; and such recorder or justices shall have power to
hear and determine the same, and to award relief in the
premises as in the case of any appeal against any county
rate : 5 & 6 AVill. 4, c. 76, s. 92.

The power in the council to make a borough rate is that
which the justices have in quarter sessions to make a county
rate under 55 Geo. 3, c. 51, and it has been held that the
appeal under sec. 92 is limited to such cases as would be
within the bb Geo. 3, c. 51 : R. v. the Recorder of Bath, 9 A.

6 E. 871; R. V. Westmorland, 10 B. & C. 226; see Rawhn-
son's Corporation Acts by Geary, 7th ed., 134.

As to stating grounds of appeal, see 15 & 16 Vict. c. 81,
ss. 17, 22, relating to appeals against county rates. The
notice should be served on the town clerk : R. v. Carmarthen ,

7 A. & E. 756 ; S. C, 3 N. & P. 19.
Offences against the provisions of local Acts will be cogni-

under local zable by the justices of the borough; 7 & 8 Will. 4 and 1

^^*'- Vict. c. 78, s. 31.

All prosecutions of offences punishable under the Municipal
Corpoi-ation Act must be commenced within three calendar
months after the commission of the offence. And if upon
summons the party shall not appear, the case may be
proceeded with in his absence: 4 & 5 Will. 4, c. 76, s. 127.

Offences

Limit of
prose-
cution.

PAWNBROKERS. 375

When any person is aggi'ieved by any summary conviction Appeal
under the Municipal Corporation Acts, he may appeal to the against
next court of quarter sessions holden not less than twelve ^p^^^^'

Lions

days after such conviction for the county or for the borough
"wherein the cause of complaint shall have arisen, provided
that such person give to the complainant a notice in writing
of such appeal, and of the cause or matter thereof, within
three days after such conviction, and seven clear days at the
least before such sessions, or enter into a recognizance in
manner described by the Act to appear and try such appeal,
abide judgment, and pay costs ; and the Court is to hear
and determine the matter of the appeal and make such
order, with or without costs, as to the Court shall seem
meet ; and on the dismissal of the appeal to order the
oifender to be dealt with and punished according to the
conviction (a), and to pay such costs as may be awarded, and
may issue process for enforcing the judgment : 5 & 6 Will. 4,
c. 76, s. 131.

By sec. 132, the writ of certiorari is taken away : see R. v.
Chantrell, L. R. 10 Q. B. 587 ; 44 L. J. M. C. 94 ; 32 L. T.
350 ; R. V. Turret, 2 T. R. 735. But see now sec. 40,
Summary Jurisdiction Act, 1879.

As to the election to appeal under the Summary Jurisdic-
tion Act, 1879, see sec. 32 {ih.), post.

PAWNBROKERS.

The principal Act relating to pawnbrokers is " The Pawn- The Fawn-
brokers' Act, 1872,". 35 & 36 Vict. c. 93. brokers'^^

This Act applies only as between the pawnbroker and the ^^*' ^^^^*
pawnee, or the owner who has authorised a pledge ; the Limited
common law rights of the owner of the property, pledged ^f "J^^^a^
against his wish, are in no way interfered with or extinguished :
see The Singer Manufacturing Go. v. Clarh, 5 Ex. D. 37 ;
49 L. J. Ex. 224.

By the 6th sec, in order to prevent evasion of the provi- Who
sions of the Act, it is enacted that the follow^ing persons deemed to
shall be deemed to l^e persons carrying on the business of ^''^"T ^^
taking gbods and chattels in pawn : every person w^ho keeps j^^^^ ^^^'

pawii-
(a) See tit. " Sum. Juris. Acts," 1879, sub-sec. 5, s. 31 ; and sec. l^roker.
32, post.

376

PAWNBROKERS.

Offences.

a shop for the purchase or sale of goods or chattels, or for
taking in goods or chattels by way of security for money
advanced thereon, or who purchases or receives, or takes in
goods or chattels, and pays, or advances, or lends thereon any
sum of money not exceeding £10, with or under an agreement
or understanding express or implied, or to be from the nature
or character of the dealing reasonably inferred, that those
goods or chattels may be afterwards redeemed or repurchased
on any terms ; and every such transaction, article, payment,
advance, and loan, shall be deemed a pawning, &c., within
the Act.

Sec. 7 exempts executors and administrators of pawn-
brokers from personal penalties, unless incurred by his own
acts.

Sec. 8 renders the act of the servant that of the -principal.

The following are offences under the Act, on the con-
viction for which the party will be liable to a penalty not
exceeding £10, under sec. 45, and have his right of appeal,
as under sec. 52, post

1. The pawnbroker not keeping proper books ; sec. 12.

2. Not keeping his name exhibited in large characters
over his door, with the word "Pawnbroker;" sec. 13.

3. A pawnbroker not giving, or the pawnee not taking a
pawn-ticket on a pledge ; sec. 14.

4. A pawnbroker taking too great a profit ; sec. 15 (sch. 4).

5. A pawnbroker not giving a receipt on redemption of a
loan ; sec. 15.

6. An auctioneer doing any act in contravention of his
duty under the Act ; sec. 20.

On pledge
above 10s.

As to pledges above 10s. : —

1. A pawnbroker, not bond fide, according to the Act,
selling a pledge pawned with him.

2. Entering in his, book a pawn as sold for less than it was
sold, or failing to enter it.

3. Refusing to permit any authorised person to inspect his
books ; or inspection of a filled-up catalogue of auction.

4. Failing to produce such catalogue.

5. Refusing to pay on demand the surplus on sale to the
person entitled to receive the same ; sec. 23. (The for-
feiture for the offences under this section, not exceeding £10,
will be to the party aggrieved.)

PAWNBROKERS. 377

As to the general restrictions : — General re-

A pawnbroker doing any of the following things will be ^ ^^^ ^^"^'
guilty of an offence :

1. Taking any article in pawn of a person appearing to be
under twelve years of age, or to be intoxicated.

2. Purchases or takes in pawn or exchange a pawn-ticket
issued by another pawnbroker.

3. Employs any person under sixteen to take in pledges.

4. Carries on business on holy days.

5. Under any pretence purchases, except at public
auction, any pledge while in pawn with him.

6. Suffers any pledge while in pawn with him to be
redeemed with a view to his purchasing it.

7. Makes any contract or agreement with any person
pawning, or offering to pawn any article, or with the owner
thereof for the purchase, sale, or disposition thereof within
the time of redemption.

8. Sells or disposes of any pledge pawned with him except
as authorized ; sec. 32.

Unlawful pawning. Unlawful

The following will be offences, if any person does any of pawning.
the following things : —

1. Offers to a pawnbroker an article by way of pawn, being
unable, or refusing to give a satisfactory account of the means
by which he became possessed thereof.

2. Wilfully gives false information to the pawnbroker as
to the ownership of the property ; or of his own name and
address ; or as to the name and address of the owner of the
article.

3. Attempts to redeem a pledge, without being entitled
thereto; sec. 34.

Sec. 35 prohibits the taking in pawn linen, apparel, or ProM-
unfinished goods or materials entrusted to wash, &c., mend, bitious.
work up, &c. And sec. 36 authorizes the issue of a search
warrant for searching for such "articles; and any pawnbroker
opposing or hindering any constable in the search will be
guilty of an offence under the Act.

A pawnbroker must, at any time, when ordered by a court
of summary jurisdiction, attend before the court, and produce
all books and papers relating to his business, which he is

378 PAWNBROKERS.

required by the court to produce ; and failing to do so, will
be guilty of an offence against the Act (a) ; sec. 50.

Penalties. A pawnbroker, or any other person guilty of an offence
against the Act, in respect whereof a specific forfeiture or
penalty is not prescribed by the Act, will be liable on con-
viction by a court of summary jurisdiction to a penalty not
exceeding £10; sec. 45.

Appeal. Any person who thinks himself aggrieved by any con-

viction or order of a court of summary jurisdiction under
the Act, or by the refusal of a certificate for a licence (6),
may appeal therefrom, subject to the following conditions
and regulations (sec. 52) : —

1. The appeal shall be made to some court of general or
quarter sessions for the county or place in which the cause
of appeal has arisen, held not less than fifteen days, and
(unless adjourned by the court) not more than four months
after the decision or refusal appealed from.

2. The appellant shall within seven days after the cause
of appeal has arisen, give notice to the other party, and to
the court (c), or authority appealed from, of his intention to
appeal and the grounds thereof.

3. Immediately after such notice, he will enter into his
recognizance with two sufficient sureties to try his appeal,
abide the judgment of the court, and pay costs, or give
seciu'ity by deposit of money, &c.

4. On recognizance appellant to be discharged if in
custody.

5. The court of appeal may adjourn the appeal ; confirm,
reverse, or modify the decision or refusal appealed from,
or remit the matter, with the opinion of the court of appeal
thereon, or make such order as to costs to be paid by either
party as the court thinks just. See sec. 31, 32; Summary
Jurisdiction Act, 1879 (infra) ; giving the right of appeal
under that Act on the election of the appellant.

(a) Contracts will not be void (c) See Curtis v. Bnss, S. C,

by reason of the pawnbroker's In re Curth, 47 L. J. M. C. 35 ;

" offence," sec. 51. 3 Q. B. D. 13, m/m, pp. 72, 133.

(Z>) See sec. 40.

THE POOR-RATE. 379

THE POOR-RATE.

The foundation for the raising public funds for the relief Founda-
of the poor is the Statute 43 Eliz. c. 2, which was passed to ^^^^^ ^^ J^^«
enforce the duties of the imperfect obligations to support the P ^ ^^ •
necessitous by raising a fund from those who were deemed
competent to pay. Lord Kenyon, i?. v. White and others,
4 T. K. 775.

The words " poor-rate " are defined, by 4 & 5 Will. 4, Definition
c. 76, s. 109, " to include any rate, rate in aid, mulct, cess, ot poor-
assessment, collection, levy, ley, subscription, or contribution
raised, assessed, imposed, levied, collected, or disbursed for
the relief of the poor in any parish or union."

" The poor's-rate," said Lord Mansfield, in Eoioles v. Gells, Not a tax
2 Cowp. 452, "is not a tax 07i land, but a personal charge ^^ iJ^^^J^^^i
in respect of the land." The landlord is never assessed for
his rent, for that would be a double assessment, as the
lessee had paid before. See Theed v. Starkey, 8 Mod.
314 (a).

By 43 Eliz. c. 2, s. 1, the churchwardens and overseers The rate a
are directed to make a poor-rate " by taxation of every in- tax on in-
habitant, parson, vicar, and others, and of every occupier of ^^'^ita.nts.
lands, houses, tithes, impropriate, propriation of tithes, coal
mines, or saleable underwood in the aaid parish."

The Rating Act, 1874, extends the rating to all mines Extension
(see post, "Mines"), and amends the mode of rating under- of 43 Eliz.
woods (see post, "Underwoods"), and makes the right of ^^^^^^^^^^^
sporting rateable (see posf, "Sporting"). 1874.°

A parish may be divided for civil and also for ecclesiastical Parisii
purposes ; as where a hamlet or tow^nship once extended into divided for
two parishes, and afterwards became annexed to the one for i"ating and
ecclesiastical purposes, but continued as part of the other ^^J ^^_^^^ ^'
for civil purposes ; a usage to rate land in one part to the poses.
poor-rate of another part, if it be impossible to say that the
usage might not have had a legal origin, is good ; the tithes

(rt) A general covenant to pay See also R. v. Issey, Burr. 826 ;

^^ all taxes'" would include the Chatjield v. Huston, 3 ib. 8G3 ;

poor-rate : Mitchell v. Fordham, R. v. R'imjstead, 7 ih. 607 ; ^. v.

6 B. & C. 274 ; although it was Shaw, 12 Q. B. 419 ; 17 L. J. M. C.

decided in Theed v. Starhey 130 ; R. v. Teignmuutli, 1 B. & Ad.

(,9?//»r«) that all " taxes o/i /«»(i " 244; R. v. Everton, 29 L. J.

did not include the poor-rate, it M. C. 165.
being a rate on the occupier.

880 THE POOR-RATE.

might have been severed while the hamlet remained as one
for rating purposes, according to 13 & 14 Car. 2, c. 12 ;
R. V. Watson, L. R. 3 Q. B. 762 ; 37 L. J. M. C. 153 ;
18 L. T. 556. See also " The Divided Parishes Act, 1876,"
39 & 40 Vict. c. 61, under which a part of a parish may
become annexed for all purposes to an adjoining parish.

Whether two places are separate and distinct parishes is a
question of evidence : R. v. Tomhleson, 27 J. P. 150 ; R. v.
ISharpley, 23 L. T. 172; 24 L. J. Q. B. 62 ; S. C, Sharpley
V. Mahlethorpe, 24 L. J. M. C. 35 ; 3 E. & B. 906 ; see also
R. V. Clayton, 18 L. J. M. C. 129, decided on the construc-
tion of 13 & 14 Car. 2, c. 12, s. 21 ; Lane v. Gohharn, 7
East, 1.
Parish in Where a parish is divided into two divisions having sepa-
two divi- j.^^g overseers and separate rates, but at the end of the year
there is a mutual accounting as to the balance remaining in
the hands of each set of overseers, they are joint overseers
having one joint account : Malkin v. Vickerstaff, 3 B. &
Aid. 89.
Parish in Where a parish lies in two or more counties, or part
two or ^ within the liberty of a city or town corporate and part
dictfons" ' without, then the overseers will be nominated by the
justices for the respective authorities, and such overseers
will act together for the whole parish : R. v. Butler, 1 Bott.
16, 43 Eliz. c. 2, s. 9. And where the boundary of the
borough is not coextensive with the parish, a separate rate
cannot be made for the part within the borough, and another
for that without, although made on an alleged custom exist-
ing since 43 Eliz, c. 2. Such custom has been held to be
bad : R. v. Gordon, 1 B. & Aid. 524.

Where a parish comprised in a union is subdivided, or
added to a union after the valuation lists have been ap-
proved, the contributions to the common fund will continue
to be made according to the Union Assessment Act, 1862
(25 & 26 Vict. c. 103, s. 30), and the Poor Law Beard will
determine the proportion the parish so added shall make in
contribution : 30 & 31 Vict. c. 106, s. 15.
Extra- By 20 Vict. c. 19, s. 1, every place entered on the regis-

parochial trar-general's report as, or which is reputed to be, extra
places. parochial, and wherein no rate is levied for the relief of the
poor, will, for the purposes of the assessment to the poor-
rate, be deemed a parish for such purposes. See Mytton v.
Thornhury, 29 L. J. M. C. 109. But where there was no
church or chapel in such extra-parochial " parish," on which
to publish the poor-rate, under 7 Will. 4, and 1 Vict. c. 45,

THE POOR-RATE. 381

s. 2, no such rate could be levied : R v. D^ott (a), 9 Q. B. D.
47; see also E. v. Marriot, 12 A. & E. 779 ; ^. v. Whipp,
11 L. J. M. C. G4; 7 Jur. 193; E. v. Newcomhe, 4 T. R. 368;
Bennett v. Edwards, 7 B. & C. 586 ; Paynter v. i?., 16 L. J.
M. C. 137. But see now 45 & 46 Vict. c. 20, s. 4.

For the preservation of the bounds of the parish by tra- The bounds
dition, the ancient custom of " beating the bounds " is o^ *^®
notorious, and has been confirmed by high judicial autho- ^^^^^ *
rity. See Anderson, C.J., in Goodday v. Mitchell, Cro. Eliz.
441 ; 71 Co. Ent. 650 b., 651 b., Trespass, pi. 5 ; Lord
Denman, C. J., in Taylor v. Devey, 7 A. & E, 409 ; see also
McCannon v. Sinclair, 28 L. J. M. C. 247 ; 2 E. & E. 50 ;
Hale, de jure maris, 27.

Primd facie, the sea-shore is extra-parochial : R. v. Musson, The sea-
8 E. (fe B. 900; 27 L. J. M. C. lOO. So an estuary, or arm f^^^^
of the sea, is extra-parochial ; but this may be rebutted,
even as to the perambulations : The Ipswich Docks Com-
missioners V. The Overseers of Ipswich, 7 B. & S. 310 ; see
also The Duke of Bridgeivater v. Bootle-cum-Linacre, 36 L. J.
Q. B. 41 ; 7 B. ,51 S. 348 ; L. R. 2 Q. B. 4. [Semble, per
Miller, J., R. v. Landulp, 1 M. & R. 393, is not correctly
reported.]

But it was held in R. v. Gee, 1 E. & E., 1068, that where
the sea-shore formed the boundary of the parish the portion
of the shore between high and low water mark of ordinary
spring and neap tides is within the boundary of the parish
adjoining.

In the case The Blackpool Pier Company v. The Assess.
Comm. Fyle Union, 46 L. J. M. C. 189 C. P. D., it was held that
a pier constructed of a wooden deck and resting on iron piles,
and which made no alteration in the line of high and low
water mark, was, as to so much thereof as was below low
water mark, not only extra-parochial and not rateable
within 31 & 32 Vict. c. 122, s. 27, but was in fact beyond
the realm. It might be made part of the parish or borough
adjoining by Act of Parliament ; Lord Coleridge, C. J.

And so where a river is the boundary, the presumption is River
that the adjoining parishes extend to mid-stream: McCannon boundary.
V. Sinclair, 28 L. J. M. C. 247 ; 33 L. T. 221 ; 2 E. & E. 53.

Where a highway is the boundary between two coter- Highway a
minous parishes, that half of the highway which is on either boundai-y.

{a) But see now 45 & 46 Vict. ment Act, 1882," referred to
c. 20, s. 4, "The Poor- Rate j^ost.
Assessment Act, 1869, Amend-

382 THE POOR-RATE.

side of the medium filum belongs to the parish on that side :
R. V. The Strand Board of Worhs, 33 L. J. M. C. 33 ; 9
L. T. 374.
Adjust- As to the adjustment of the bounds of parishes, see

ment of 42 & 43 Vict. c. 54.

bounds. A Parhamentary survey made in 1652 (the time of the

Evidence Commonwealth) is evidence, by reputation of the bounds of
tion.^^''^' ^ P'^^^^^ '• Freeman v. Read, 4 B. & S. 178; 32 L. J. M. C.
226 ; Nicholls v. Parker, 14 East, 331 n. But a determina-
tion of Inclosure Commissioners as to the boundary of a
parish was held not conclusive : R. v. St. Mary, Bury St.
Edmunds, 4 B. & Aid. 462 ; see also R. v. Washhrook, 4
B. & C. 732. In which case, however, it appeared that the
commissioners had not pursued their authority. An award in
a suit inter alios is not evidence of the bounds of either a
parish or county : JEvans v. Reis, 10 A. & E. 151 ; Wenman
V. McKenzie, 5 E. & B. 447.
Assessment The object of the Union Assessment Committee Act, 1862,
committee. 25 & 26 Vict. c. 103, was to make more effectual provision
for the uniform correction of the valuation of parishes in the
unions of England ; and to effect the settling of the valuations
for the assessment of the poor-rates ; for this purpose the
guardians of each union appoint annually at the first meeting
after their election, six, and not more than twelve, of their
members as " the assessment committee {a) of the union " ;
and within three months after their appointment the over-
seers prepare the valuation list (6), and, as occasion may
require, " supplemental lists." And by sec. 25 the Act
seems to be imperative, that a supplemental list must be
made, — where there is new rateable property ; where the
property has become divided by reason of the alteration of
the occupation; or where the property has increased or
diminished in value. As to adding new houses not yet
occupied, see Maiden v. Kingston, 38 L. J. M. C. 125 ; S. C.
R. V. Maiden, L. R. 4 Q. B. 326 ; 10 B. & S. 323, see infra,
tit., "The Union Assessment Acts."
Overseers Under sec. 14, Union Assessment Act, 1862, the over-

to prepare seers (c) in each parish in a union will prepare and make
the "Valu-
ation List.'

Qi) The terra "assessment 1874, s. 14.

committee " means, in relation to (J) As regards any parish

any parish where there is no where there is no valuation list,

assessment committge, the per- the term " valuation list " means

sons having power to make and the poor-rate : Act 1874, s. 14.

assess the poor-rate in such (c) Sge 32 & 33 Vict. c. 41,

parish or place : Eating Act, s. 20,

THE POOR-RATE.

383

out a list, and revise the old list, of those in the parish
liable to be rated, and which list is styled, " The Valuation
List " (a). It will be in the following form : —

Valuation List for {parish) in the County of

o
o

2i

of Owner.

iption of
perty.

3 K->

to pti

P o

2^

imated
ental.

4, ft

o

u o

^■■s

^M

^s

«^

1

SPh

Sfl

H

o

'A

fi

S o

6

A rate not duly made will be a nullity : Fox v. Davies, 18
L. J. C. P. 48; 6 C. B. 11. The rate must show e^/aae
it has been made with proper authority : JEastern Counties
Bailway Company v. Moulton, 25 L. J. M. C. 49 ; 5 E. & B.
974; see also Paynter v. 7^., 10 Q. B. 908; 16 L. J. M. C.
136 ; 7 Q. B. 255 ; 14 L. J. M. C. 136 ; Scadding v. Lorant,
16 L. J. M. C. 163 ; 13 Q. B. 687; 19 L. J. M. C. 5 ; Douglas
V. Clarke, 3 M. & G. 485 ; R, v. Millhank, 4 M. & G. 222 ;
11 L. J. C. P. 113(6).

If the purpose of the rate be legally stated, ex facie, it
cannot be quashed, although the money had been improperly
expended ; it must be disputed by an appeal against the
overseers' accounts : R. v. Gloucestershire {Mayor), 5 T. R.
346. But now those accounts may also be subject to the
scrutiny of the poor law auditor, with an appeal to the
Local Government Board.

It is sufficient to describe the property as " land," without

The rate
must show
autliority,
ex facie.

Where rate
good ex
fack sub-
ject to ap-
peal only.

Description

(rt) As to the appointment of
collectors, see 2 & 3 Vict. c. 84,
s. 2, passed in consequence of
The Poor Lam (hmmissioners v.
Cavihridge Union, 9 A. & E. 911 ;
8 L. J. M. C. 77.

(J) Where a rate is a nullity,

or a person is charged who is
not rateable at all, the rate may
be either appealed against or
disputed on distraint in an action
of replevin : Durrani v. JBoyes,
6 T. R. 580 ; Millward v. Cajin,
2 W. Bl. 1330.

384

THE POOR-EATE.

of 'Mand"
on rate.

For what
jjurpose
rate to be
made.

Proepec-
tive, or
retiospec-
tive.

Rate when
made.

Publication
of rate.

Rate can-
not be
abandoned.

Gross esti-
mated
rental (a)
under the

naming it, or giving the estimation or situation : Eastern
Counties Railway v. Moulton, 25 L. J. M. C. 49.

The rate will be made to provide for the liabilities of the
parish in relation to the charges for the poor incurred within
the year: R. v. Read, 18 L. J. M. 0. 164. It should be
made prospective and not retrospective : Burr ant v. Boyes, 6
T. R. 580 ; R. v. Goodcheap, ih. 159 ; R. v. Sillifant, 4 A. &
E. 355 ; it was so held as to a church-rate : R. v. Bursley,
5 A. & E. 10 ; a borough-rate, Wood v. Reid, 2 M. & W.
777 ; there is, however, no general rule prohibiting a retro-
spective rate ; each case must be governed by the statute :
see Harrison v. Stichiey, 2 H. & C. 108; an unforeseen debt
may be a proper charge : R. v. Read (supra).

A rate is deemed to be made on the day when it is
allowed by the justices: 32 & 33 Vict. c. 41, s. 17; St.
Mary Kalendar, 9 A. & E. 626.

The rate must also be published on the doors of all the
churches and chapels in the parish, or otherwise it cannot be
levied. The non-publication is a radical defect in itself which
cannot be cured : R. v. Newcombe, 4 T. R. 368 ; Sihhald v.
Roderick, 11 A. & E. 38 ; 3 P. & D. 106.

Where there is neither church nor chapel in the parish,
which may happen in an extra-parochial place created into a
"parish" under 20 Vict. c. 19, s. 1 (see ante, p. 379), and
where there can be no publication of the rate, necessarily no
rate can be levied : R. v. Byott, 9 Q. B. D. 47 ; but see now
45 & 46 Vict. c. 20, s. 4, passed to remedy the defect in R. v.
Byott, whereby the publication of the rate may be made
where there is neither church nor chapel in the parish, if
within fourteen days after the making of the rate notice
thereof has been given by affixing such notice in some public
and conspicuous place or situation in the parish.

A rate w^hen made cannot be abandoned : R. v. Cambridge
JJ., 2 A. & E. 370 ; but the overseers may so far abandon
it as not to incur any expense in supporting it at the sessions :
R. V. Fonch, 2 Q. B." 308 ; 11 L. J. M. C. 1.

Section 15 of the Union Assessment Committee Act, 1862,
defines the " gross estimated rental " to be " the rent at which
the hereditament might reasonably be expected to let from

(a) See ''The Valuation Me-
tropolis Act, 1869," infra, p. 442,
where the terms used are " gross
value" and " rateable value," in
lieu of "gross estimated rental,"

*' Gross value" in "The Rating
Act, 1874," is to have the same
meaning as " gross estimated
rental " in the Act of 1872.

THE POOR-KATE. 385

year to year, fi'ee of all usual tenants' rates (a) and taxes and Union As-
tithe commutation rent-charge, if any. But this is not to sessment
interfere with the definition of the net annual value of ^I'^^J^io^
hereditaments to be rated in the Parochial Assessment Act, '
6 & 7 Will. 4, c. 96, s. 1, viz., " the rent at which the here- ^^ ^""^^^^
ditaments might reasonably be expected to let from year to
year, free of all usual rates and taxes and tithe commutation
rent charges, if any, and deducting therefrom the probable
average annual cost of the repairs, insurance, and other
expenses, if any, necessary to maintain them in a state to
commai^d such rent. But this is not to alter the principles of
the different relative liabilities to which they may be rateable :
see Hay ward v. Brinkworth^ 10 L. T. 608 ; Overseers of
Sunderland-on-Sea v. The Sunderland Union, 34 L. J. M. C.
121 ; 18 C. B. N. S. 531 ; 13 L. T. 239 ; Allison v. Monk-
wearmouth, 23 L. J. M. C. 177. As to small tenements, see
R. V. Bilston, 35 L. J. M. C. 73 ; 6 B. & S. 908.

A voluntary payment by a landlord of a water-rate is not
a tenants' rate, or an expense necessary to maintain the
premises in a state to command the probable annual rent,
and ought not to be deducted from the gross estimated rental
of the premises : R. v. Bilston, 35 L. J. M. C. 73 ; L. R. 1
Q. B. 18 (this water-rate was paid in respect of a composition
for the rate of a small tenement under a local Act).

Where a tenant agrees to take on himself the cost of the Tenant
repairs, or any expense necessary to maintain the rateable paying re-
value of the premises, such costs are to be added to the rent, pairs.
and then deducted by the landlord, leaving the actual rent
the tenant may pay as the amount to be assessed as the net
annual value : R. v. Wells, 36 L. J. M. C. 609 ; L. R. 2 Q.
B. 542 ; 8 B. & S. 607.

Every person is to be rated in the present value of the ^\iq present
estate he occupies, whether increased or not by improve- net annual
ments : R. v. Mast, 6 T. R. 154 ; see also R. v. Shingle, 7 ih. valne to be
549 ; R. V. Kintmere, 21 L. J. M. C. 13. And it has been r^ted,re6«s

8'XC St{t Titt^

held that a person who occupies that which may produce j„^
profit cannot exempt himself from being rated by his making
no profit; and in R. v. Vange, 3 Q. B. 242 ; 11 L. J. M. C.
117 ; Lord Denman illustrated the proposition by supposing
a farmer being able to prove that he was holding his farm at
an assignable amount of loss, and said, " Would that consti-
tute an exemption from the poor-rate ? " In R. v. Parrott,
5 T. R. 593, Lord Kenyon said, "Their objection is that they

(a) Sewers rate is included : R. v. Kildare, 34 L. J. M. C. 17.

386

THE POOR'RATE.

Clark V.
Th« Alder
hurt/
Union.

Present
value.

have made an unprofitable bargain with the lessors ; but we
cannot examine into that, it being sufficient to make them
liable that they are the occupiers of rateable property."
And Buller, J., remarked, " If the property be rateable, and
the party rated be in occupation of it, we cannot examine
any further, and inquire whether or not the tenant has made
an unprofitable bargain." In a subsequent case before Lord
Denman, his Lordship said, " The rate is to be on the
occupier in respect of the beneficial nature of the occupa-
tion ; the officers are to consider not dryly and only what
would legally pass by the demise of it, but all the existing
circumstances, whether permanent or temporary, wherever
situated, however arising or secured, which would reasonably
influence the parties to a negotiation for a tenancy as to the
amount of rent." B. v. Tlie Grand Junction Ry. Co.^ 4 Q. B.
18; 13 L. J. M. C. 94.

In E. V. Fietton, 3 E. & E. 45 ; 30 L. J. M. C. 89-94 ;
Cockburn, C. J., said, " The tnie principle according to which
the value of the occupation to the hypothetical tenant con-
templated by the Parochial Assessment Act is to be esti-
mated, .is to assume the continuance of those circumstances
which constitute the value to the existing occupier, unless it
be made to appear that those circumstances are about to
undergo a change." As it is expressed in some cases, the
property must be rated rebus sic stantibus; see B. v. The
Rhymney Ry. Co., L. R. 4 Q. B. 276 ; 38 L. J. M. C. 75. In
a recent case, Clark v. Alderbury Union, 50 L. J. M. C. 33 ;
S. C. €0 nom., Clark v. Fisherton Ongar, 6 Q. B. D. 139, it
was held that the lessee of a refreshment-room at a railway
station, at a fixed annual rent, might show by his books, and
his receipts and expenditure during the past year, in respect
of those rooms, that the business was carried on at a loss,
and that the rent received did not represent the true value
of the premises. But it is not enough to show that the
expenses laid out in any particular year had absorbed the
profits of that year ; the benefit of such expenses may be
derived in future years, as was often the case with improve-
ments of farms ; Lord Ellenborough in R. v. Agar, 14 East,
256. The property must be valued communibus annis ;
see this principle applied by Lord Ellenborough to the
rateability of saleable underwoods ; R. v. Mirfield, 10 East,
219 — 225 ; see also Great Western Ry. v. Badgeworth, L. R. 2
Q. B. 251 ; 36 L. J. M. C. 33 ; R. v. Hull Dock Co., 5 M. & S.
394.

As to what is "present " value, see also Staleyx. Castleton,

THE POOR-RATE. 387

33 L J. M. C, 178 ; 5 B. & S. 505 ; Harter y. Salford, 34
L. J. M. C. 206 ; 6 B. & S. 591 ; Newmarket Railway Co. v.
Cambridge Overseers, 23 L. J. M. C. 76 — 79 ; R. v. Heaton,
20 J. P. 37 ; see also post, as to the working of a mine
without profit : see 'post, p. 418.

Rent is not rateable per se ; it bears the burthen of the K^nt not
State in the value of the occupation in the hands of the ^'^teable
occupier. Nor is the rent the standing rule for making the ^
poor-rate ; circumstances may differ, and there ought to be g^^J^^^J^.
a regard ad statum et facuUatus ; D. Poor Rates, Vin. Ab. ^^^ on
425 ; see definition of rental, 25 & 26 Vict. c. 103, s. 15, which to
Union Assessment Act, 1862. But it was saidbyiLittledale, J., make the
in R. V. Chaplin, 1 B. & Ad. 926, "in case of a property ^^*®"
lately let, the actual rent is the best criterion of the value."
And Patteson, J. said (S. C), " where land is not actually let,
it becomes necessary to calculate what a tenant would pay
for it were it let. The actual rent is the criterion unless it
can be clearly shown that it is too small." And it is to be
valued at what it would let communihus annis ; Taunton, J.,
S. C. : or, as remarked by Lord Denman, in R. v. Westbrook,
R. V. Everest, 10 Q. B. 178 ; 16 L. J. M. C. 87, the amount
which had been paid for rent is only evidence, and not the
fact itself to be ascertained by the sessions. To show that
£1,000 a year was agreed to be paid as rent for a refresh-
ment room at a railway station, evidence was permitted to
show an actual loss on the concern, and that the rent agreed
to be paid was in excess of the value : Clarice v. The
Alderhury Assessment Committee, supra J see Lord Bute v.
Grindall, 1 T. R. 338 ; R. v. Parrot, 5 ih. 593 ; R. v.
Vange, (supra, p. 385). In Jones v. Mersey Docks & Harbour
Board ; and Mei^sey Doclc & Harbour Co. v. Cameron, H. L. .
35 L. J. M. C. 1, it was said by Blackburn, J. (speaking on
behalf of himself and four other judges, and in which the
H. L. agreed), " in order that a valid rate may be imposed,
it is essential that the occupation be of value beyond what is
required to maintain the property ; for if the property be of
so little value that the hypothetical tenant (under the
Parochial Assessment Act) would either give no rent or a
rent which, after deducting the average annual expense of
the maintenance, would leave no surplus, there is nothing to
rate"(*6. 9).

It was formerly a valid custom to rate all persons in the Rate for-
parish according to their apparent ability to pay ; and stock- merly on
in-trade and ships belonging to an inhabitant were rateable : "^oihty to
Nightingale v. Marshall, 2 B. & C. 313 ; R. v. Ambleside, 16 ^''^'

8 2

388

THE POOR-RATE.

Result of
Uniou
Assess-
ment Act,
1862.

No inquiry
t) be made
of profits
of tnide.

East, 308 ; Patteson, J. ; R. v. Lwmdaine, 10 A & E.
157.

The Parochial Assessment Act, 1836, 6 & 7 Will. 4, c. 96,
establishing a uniform rating, made no alteration in the
mode of assessing the profits in personal property : E. v.
Lumsdaine, supra. In consequence of that decision tempo-
rary Acts have, from time to time, exempted that property
from being rated; the present temporaiy Act is 44 k 45
Vict. c. 70, and will remain in force until December 31st,
1882.

By the Union Assessment Committee Act, 1862, 25 & 26
Vict. c. 103, s, 36, the assessment was not to "extend or be
taken to render liable to be rated any property, or any person
in respect of any occupation not now by law rateable to any
property, or to deprive any property, or the occupier of any
property, of the benefit of any exemption, in whole or in
part, to which such property or occupier is now by law en-
titled," &c.

The temporary Act at that time in force exempted an in-
habitant from being rated "in respect of his ahility derived
from the profits of stock-in-trade, or any other property, for
or towards the relief of the poor." The practical result of
the Union Assessment Act, 1862, therefore, was to exempt
stock-in-trade and ships from being rated as representing the
" ahility " of the person for payment of rates. See Bum's
Jus. Peace, Tit. Poor, p. 850.

On an appeal against the rating a chalk pit which was
used in the manufacture of lime and cement, it was held
that no inquiry could be made into the variable profits made
from the use of the chalk, but only into the convenience
and situation of the chalk pit in estimating the rent a
tenant would reasonably pay : R. v. Aylesford Union, 26
L. T. 618; 37 J. P. 148.

In JR. V. Verral, 1 Q. B. D. 9, it was held that inspection
might be made, and the books containing the entries of the
receipts on a racecourse called for in evidence as elements
for consideration i.. arriving at the value of the occupation,
and to show the appellant w^as making more than he said he
was.

In B. V. Aylesford Union, the question was not only what
was the value of the hereditaments to let, but what was the
profit from the particular mode of carrying on the business
of the appellant, and whether his particular and personal
mode of carrying on his business ought to increase the
amount of the rate : see Field, J., in Clarh v. Fisherton

i

THE POOR-RATE. 389

Ongar, 6 Q. B. D. 139—143 ; S. C. eo mm. Clark v. Alder-
bury Union, 50 L. J. M. 0. 33.

But although profits of trade are not rateable per se, nor But trade
to be taken as the test in determining the rateable value, profits may
yet they may form a material element in ascertaining the ^^^'^ ^^ .
proper amount of the assessment : see E. v. Birminglmm Gas j^gessing
Co., 1 B. & C. 506. So in the case of the Steel-yard ; part of the value
a machine in the street connected with the house, was used of the rent,
for the weighing of waggons and carts ; there w'ere profits The Steel-
attached to the weighing ; without those profits, the house yard case,
was worth £5 a year ; the profits were worth £40 ; those, ^} ^'
after due deductions, were included in the rate as enhancing
the rateable value of the house. Lord Mansfield considered
the house and weighing machine as one entire thing. The
principal purpose of the house was the use of the weighing-
machine and the steel-yard, the most valuable part : B. v.
Gloucester, Cald. 262 : 1 T. R. 723, n.

E. V. Bradford, 4 M. & S. 317, is another case which is The Can-
referred to on this point in which the principle was sought teen ciuse,
to be evaded, but not denied, of the value of the house being ^- v-i^mrt-
enhanced by the use made of it by demising a canteen at
two distinct rents in the hope of contending that the rate
should be made on the rent of the house only. The Coiu-t
looked to the substance of the contract, and not the form, and
held both sums to be one entire rent paid for the occupation
of the house and the enjoyment of the advantages which, for
the time, belonged to it, and, for the time, enhanced its value ;
Le Blanc, J., said, this was not rating the canteen-man in
respect of the profits of his trade, but only in respect of the
rent which he paid. The occupation of t^e house was indeed
necessary for earning the profits of the trade, but the house
became more valuable because it enabled the profit to be
earned. These cases were recognized as leading authorities
in B. V. The London c& South-Western Ry., 1 Q. B. 558 ; 11 L.
J. M. C. 93 ; and other railway cases, post.

A conflict of decision has taken place on the rating of a Brewery
brewery where it w^as let with the right to supply certain y^*|^,
public-houses with beer, and which the tenants of those f^d tnvle
houses were bound under agreement to take. Lord Camp- of pnblic-
bell, C. J., and Crompton, J., held that the advantage so houses,
derived was to be taken into consideration in assessing the
value of the tenancy enhanced by the privilege attached to
the brewery ; and which would be taken into consideration
in calculating the rent the tenant would give. It was an
advantage only to be enjoyed at the brew^ery, and made the

390 THE POOR-RATE.

brewery more valuable. And Lord Campbell said he could
not distinguish the case from the canteen case : R. v. Brad-
ford {supra). Erie, J., however, dissented from this view,
holding that only hereditaments are rateable, that is land
with its appurtenances, and the contract between the occu-
pier and another person was not a hereditament ; and that
the contract could no more become land in the case of the
brewer than in the case of a grocer, or any other tradesman :
Allison V. Monhwearmouth, 23 L. J. M. C. 177 ; 4 E. & B. 13.
This view Erie, J., again maintained when Chief Justice in
Common Pleas, and where he was supported by Smith, J.,
dissenting Byles, J., in Sunderland near the Sea v. Sunderland
{Guardians), 34 L. J. M. C. 121. Erie, C. J., and Smith, J.,
sought to distinguish the two cases in reference to the Union
Assessment Act and the Parochial Assessment Act ; but any
such distinction Mr. Davis suggests can barely be supported :
see Burn's Justice, " Poor," 939, n., ed. by Mr. Davis.

Surface-land used with the working an iron mine (the
mine not at that time rateable) was enhanced in value by
reason of its being attached to the mine, so that indirectly
the value of the mine to an extent became rateable by means
of the thereby enhanced value of the land : Guest v. East
Dean, 41 L. J. M. C. 129; L. K 7 Q. B. 334. See Kittow v.
Liskeard Union, L. R. 10 Q. B. 7.
Who the ^ person in the visible occupation of land is rateable as

occupiei ; ^^ occupier de facto without considering his title : Lord

occupation x. >/ o

de facto. Keuyon, R. v. Bell, 7 T. R. 601 ; R. v. West Middlesex

WaterivorJcs, 28 L. J. M. C. 135, where the company were in

the possession of "the mains" without any legal estate in

the land. So trustees of a school are rateable on trust

premises : R. v. Stapleton, 33 L. J. M. C. 17 ; 4 B. & S. 629 ;

R. V. Catt, 6 T. R. 332.

Occupation Where a farm lies in two parishes, the sessions are not

in more bound to determine the specific boundary of the acreage

than one ^j^^^j^ j^^g ^j^j^i^^ ^^^j^ p^j.|gj^ . j^ ^ Woods, 1 E. B. & E. 481 ;

pansn. ^7 L. j. M. C. 289 ; 31 L. T. 179 ; see R. v. Etwall, 3 Smith,

\o ; M'Cannon v. Sinclair, 28 L. J. M. C. 247 ; Jeferey's Ca.,

5 Co. 66; 1 Bott, 122.

The "pa- Companies, whether railway, canal, gas, waterworks,

rochial docks or otherwise, are rateable to the poor in every parish

earning^ through which they may pass, in proportion to the profits

and ' which the land, occupied by them in such parish, yields.

"acreage This is called, "the parochial earning system." Where this

principle." principle is not practicable^ then "the acreage principle" is

adopted : see R, v. Kingswinford, 7 B, & C, 237 ; -S. v. Bath

THE POOR-RATE. 891

{Mayor), 14 East, 609 ; R. v. Bochdale Watenvorhs Co., 1 M.
k S. 634. As to pipes sunk under ground, it makes no
difference that other persons are rated for the surface of the
land : R. v. The Chelsea Watenvorks Co., 5 B. <fe Ad. 156. See
the leading cases subsequently referred to : R. v. The Grand
Junction Ry. Co., 4 Q. B. 18 ; R. v. The Great Western Ry. Co.,
ib., 179 ; 15 L. J. M. C. 80 ; R. v. Tlie South- Western Ry. Co.,

1 Q. B. 558.

It was held in the Mersey Docks d: Harbour Board v. Liver- Docks in
pool, L. R. 7 Q. B. 643 ; 41 L. J. M. C. 161 ; 26 L. T. 868 ; separate
20 W. R. 827, where the board was possessed of docks on parishes,
both sides of the river Mersey, in Liverpool and in Birken-
head (different parishes), the whole being under one manage-
ment, the rating the separate docks was not to be treated
as one system ; but the earnings and outgoings of each set
were to be looked to as distinct, and each of the docks rated
according to the independent earnings in each separate
parish ; see also R. v. Foleshill, infra, p. 421.

To constitute an occupation of the land within the An interest
meaning of the rating Acts, there must be a demise of the ^^ JJ^® ^^^
soil, or of something permanently attached to the land as requisite,
a fixture, giving the absolute and exclusive possession of
the soil. On this principle " advertising hoardings " w^ere
held not to be rateable : R. v. St. Fancras Ass. Com.,

2 Q. B. D. 581; 46 L. J. M. C. 243; nor a person licensed
to sell refreshments at a stall in an exhibition building, R.
V. Morrish, 32 L. J. M. C. 245; or the holder of a book-
stall at a railw^ay station, S^nith <k Son v. Lambeth Ass,
Com., 51 L. J. M. C. 106 ; nor the holding a stallage in a
market without an exclusive occupation, R. v. Bell, 5 M. <fe
S. 222 ; Roberts v. Aylesbury, 22 L. J. M. C. 34 ; 1 E. & B.
423 ; and see also the recent case as to the stallage tolls in
Covent Garden, 51 L. J. M. C. ^\,post, pp. 401, 402; and
tit. " Moorings," post, p. 394.

The occupation must be capable of being beneficial to Beueficial
the occupier to be rateable, and when beneficial it is occupa-
rateable to its full value, without regard to the amount of ^^°'
benefit which might be derived. See Jones v. The Mersey
Docks, 11 H. L. 443 ; 35 L. J. M. C. 1. The rate should be
made upon the rent, which might reasonably be expected,
from a hypothetical tenant, who took the property from
year to year, reb^is sic stantibus. "The language of the
section is," Lord Denman remarked, in R. v. Capel, 12 A. & E.
382; 9 L. J. M. C. 65, "very inartificial and loose to a
degree, which renders the discoveiy of a definite meaning

392

THE POOR-RATE.

to all its parts extremely difficult." So where a cotton-
mill, owing to a scarcity of cotton, is not kept at work,
and for which therefore a tenant would give nothing as from
year to year : the mill was only rateable as for the use of
the building for warehousing the valuable machinery. See
1 Nolan's Poor Law, 182 ; Stanley v. Castleton, 33 L. J. M. G.
178; 5 Q. B. 505; i?. v. Rhymney Ry. Co., L. R. 4 Q. B.
276; 38 L. J. M. C. 75 ; 10 B & S. 198; 17 W. K 530.
Where the profits were exhausted, and no rent could be
realised : see Lincoln Corporation v. Holmes Common^ 36 L. J.
M. C. 73 ; L. R. 2 Q. B. 482 ; 8 B. & S. 344. But see,
however, upon an appeal against a poor-rate, evidence was
held to be admissible, to show that the sums received and
paid for provisions, salaries, &c., in carrying on the business
of a refreshment-room at a rail way -station, were in fact
a loss : Clark v. Fisherton Ongar ; R. v. Aylesbury (sujyra),
explained ; Clark v. The Alderbury Union {supra, p. 386) :
see, infra, the rating of "Mines," "Docks." The valuation
may be on the land used for the growth of underwood for
what it made on letting communihus annis : see R. v. Clmplin,
1 B. k Ad. 926.

A mere right or licence to enter and be on land is an
easement not rateable : R. v. Trent and Mersey Navigation
Co., 4 B. & C. 57 ; Watkins v. Gravesend and Milton Union,
37 L. J. M. C. 73; R. v. Aberavon, 5 East, 460; but if such
easement be accompanied with the right to remain there,
and work the land, as in Crosby v. Wadsworth, 6 East, 602,
where the appellant was to have the growing grass, and for
that purpose to have exclusive possession of the field ; the
nature of the thing required him to have the sole occupa-
tion of the whole field, and was rateable. So the right to
enter the land, and take coprolites, Roads v. Trumpington,
40 L. J. M. C. 35 ; L. R. 6 Q. B. 5^ ; in which Blackburn,
J., said. Crease v. Sawle, 2 Q. B. 862 (where a non-inhabitant
lessee was rated as the occupier of a tin toll in Cornwall
under 43 Eliz. c. 2, s. 1), was not to be extended ; see
R. V. Todd, 12 A. & E. 816; i?. V. WJmddon, 44 L. J.
M. C. 73; L. R. 10 Q. B. 230; 32 L. T. 633; 23 W. R.
153 : Mogg v. Yatton, 50 L. J. M. C. 17, was also a case
on the right to work land for coprolites. There the I'ight
extended over ten acres, allotted in each year for working ;
but only two and a half acres were in work at one time, and
Occupation one acre was occupied with machinery. The use of the ten
shifting. acres was constantly shifting, and after the digging out the
coprolites was completed, the land was levelled, and given

Exchisive
possession
requisite.

THE POOR-RATE. 303

over to the agricultural tenant. Cockburn, C. J., held that
there was only an actual occupation of three and a half
acres beneficial to the company working the land which
was of any vakie to them ; and that the right to the ten
acres, although with a constant occupation of so much,
was a perpetually shifting one as the operations were
extended, and not as a whole rateable : the other members
of the court — Mellor, Lush, and Archibald, JJ. — held that
the company was rateable for the whole ten acres, as they
had the exclusive occupation thereof during the year, w^ith
a privilege attached to it, at one yearly rent. And it was
remarked by Mellor, J., in giving the judgment, that he
could not see why the parish should lose the benefit of an acre
of the ten acres, each of equal value, and together realizing
a rental of £1000, for the purpose of rating to the poor-
rate, because the parties had ingeniously arranged a mode
of working the land, making only one-fourth of it profitable
during any one quarter of a year. See B. v. The Rhymney
Ry. Co., 38 L. J. M. C. 75 ; 10 B. & S. 198 ; L. R. 4 Q. B.
276 ; and as to the rating of a brickfield, see R. v. Everest,
R. V. Westbrook, 10 Q. B. 178; 16 L. J. M. C. 87; Daniel
v. Gracie^ 6 Q. B. 145 ; ante, p. 387.

Prior to ''The Rating Act, 1874," 37 & 38 Vict. c. 54, Right of
ss. 3, 6, the right of shooting over land was not in itself sporting.
rateable ; it was only so when it improved, and enhanced
the value of the land : per Lush, J., in Hilton v. Bowes,

35 L. J. M. C. 137, 142.

Where a lease reserved the right of sporting over the land Rights
to the owner, it was held that there was a severance of a ^e'^ered
right from the occupation which was rateable : Rogers v. occupation.
St. Germains Union, 35 L. T. 332.

The words of sec. 6, sub-sec. 2, Rating Act, 1874, are :
" Where any right of sporting, when severed from the
occupation of the land, is let, either the owner or the lessee
thereof, according as the persons making the rate determine,
may be rated as the occupier thereof." See R. v. Rattle,

36 L. J. M. C. 1 ; L. R. 2 Q. B. 8 ; explained in Kenrick v.
Guilsjield, 49 L. J. M. C. 27; R. v. Thurlstme, 1 E. & E.
502 ; 28 L. J. M. C. 106 ; Eytmi v. Mold, 50 L. J. M. C.
39.

So also the right to fish, when severed from the occupa- Right of
tion, is rateable : Rating Act, 1874, sec. 6, sub-sec. 1. fishery.
Such right was not, before, as a mere incorporeal heredita-
ment or fishery, rateable : R. v. Ellis, 1 M. & S. 652.

An easement of a right of way, not being a grant of the Right of

s 3 way.

394

THE POOR-RATE.

Rights of
common.

Right must
be sufficient
to give
action of
trespass.

Fines and
quit-rents.

Moorings.

Telegraph
posts.

Public
institu-
tions,

profits of the land, is not rateable : R. v. Jolliffe, 2 T. R. 90 ;
but a waggon-way, where there is an exclusive occupation
of the ground, is rateable : R. v. Bell, 7 T. R. 598.

A right of common attached to land, and which affords
a beneficial occupation, is rateable ; but, at the same time,
the commoner must have such a possession as to give him a
right of action in trespass, as a person having the primam
vesturam. A bare right of common is not rateable ^^er se.
See R. V. Churchill and Booth, 4 B. & C. 750 ; 6 D. & R.
635 ; R. v. Alnwick Common Council, 1 P. & D. 343. See
R. V. Aberavon, 5 East, 460; Watkins v. Gravesend and Milto7i
Union, 37 L. J. M. C. 73 ; L. R. 3 Q. B. 350.

Fines and quit-rents are casual fruits and profits, and not
rateable : R. v. Vanderall, 2 Buit. 991. As to quit-rents,
see R. V. Aldhury, 1 East, 534.

Stones and ballast had been lowered into the bed of the
river Thames so as to make permanent moorings to which
floating hulks were attached and used for loading and un-
loading coal, transferring their cargoes to lighters. A rent
was paid for the accommodation to the Conservators. The
moorings were held by the House of Lords to be rateable,
confirming the Court of Appeal, Cory v. Bristow, H. L. 46
L. J. M. C. 273 ; L. R. 2 App. Ca. 262. In C. A. 45 L. J.
M. C. 145 ; 1 C. P. D. 54, reversing the decision in Common
Pleas, reported in L. R. 10 C. P. 504 ; 44 L. J. M. C. 153 ;
32 L. T. 797 ; 23 W. R. 615 ; see also WatUm v. Gravesend,
37 L. J. M. C. 73 ; L. R. 3 Q. B. 350 ; Grant v. The Local
Board for Oxford, 38 L. J. M. C. 39 ; 9 B. & S. 900 ; L. R. 4
Q. B. 9, where the moored barge of the Oxford University
Boat Club was held not rateable. There must be a perma-
nent attaching to the land : R. v. Morrison, 22 L. J. M. C.
14 ; 1 E. & B. 150. See also R. v. Leith, 1 E. & B. 121 ; 21
L. J. M. C. 119 ; R. v. Forrest, 8 E. & B. 890; 27 L. J.
M. C. 96.

The placing telegraph posts in the land is such a beneficial,
exclusive use of the land, as to render a telegraph company
rateable : The Electric Telegraph Company v. Salford,
24 L. J. M. C. 146 ; 11 Exch. 181. By the Telegraph Acts,
1868, 1869, no duty is payable on the Government tele-
graph property, excepting a voluntary rate : R. {or Mannj-
lehone Vestry) v. The Postmaster-General, 28 L. T. 337 ;
21 W. R. 459.

In the days of Lord Mansfield, Lord Kenyon, Lord Ellen-
borough, and Lord Tenterden, the opinion prevailed, through
a long series of authorities, that property held for public

THE POOR-RATE. 395

purposes (though unconnected with the Crown), was exempt buildings,

from payment of the poor-rates. This opinion was shaken docks, &c.,

by Loi-d Denman, and substantially overturned by Lord "°* govern-
J ' t/ •/ ment vised

Campbell ; but it was not finally extinguished until the f^j. public

judgments in the House of Lords pronounced in Jone& v. purposes.
Mermj Doclcs, 11 H. L. Ca. 443 ; 35 L. J. M. C. 1, from which
it appears that trustees, as the legal occupiers of hospitals or
lunatic asylums, are rateable to the poor-rate, the occupa-
tion being capable of yielding a net annual income, though
it be not beneficial to the owner. And see also the Scotch
case, which is not distinguishable from the Mersey Docks
cases, Clyde Navigation Trustees v. Adamson, 4 Macq. 931,
where the House of Lords held that Crown property, as well
as property devoted to or made subservient to the Queen's
Government, is exempt from the poor-rate ; but property
held upon trust to create or improve docks and harbours in
seaport towns, though having a public character, and de-
voted to public purposes, is nevertheless subject to be rated
for the relief of the poor. See Leith Harbour and Docks v.
The Inspectors of the Poor, L. R. 1 H. L. Sc. App. 17.

The Mersey Docks Case has established (reversing the judg-
ment in the Queen's Bench and Exchequer Chamber, and
many other cases on the same point) that a public board
may have docks or other property vested in them, within
the meaning of " occupier," and that they are not exempt,
by reason of their occupation being for public purposes, and
not for any personal benefit. Lord Westbury, L.C., in giving
his judgment in Jones v. The Mei'sey Docks, said : "The only
occupier exempt from the operation of the Act is the King,
because he is not named in the statute ; and the direct and
immediate servant of the Crown, whose occupation is the
occupation of the Crown itself, also comes within the exemp-
tion. But this ground of exemption does not warrant many
decisions which have held that property used for public pur-
poses is not rateable. So also, trustees, who are in law the
tenants and occupiers of valuable property upon trust for
charitable purposes, such as hospitals or lunatic asylums,
are, in principle, rateable, notwithstanding that the build-
ings are actually occupied by paupers, the sick, and
insane." "The questions," said Lord Westbury, "raised in
this appeal depend in a great measure on the inquiry, what
is the occupation of real property which is liable to be rated
under the 1st sec. of the 43 Eliz. c. 2 ? Independently of the
decided cases, several of which are irreconcilable with each
other, it would seem to be easy to answer this inquiry ; and,

396

THE POOR-RATE.

"Where
profits are
restricted
by statute.

Hospitals.

Lunatic
asylums.

having regard to The Parochial Assessment Act, 6 & 7
Will. 4, c. 96, it may be said, in answer, that 'occupation
to be rateable must be of property yielding, or capable of
yielding, a net annual value, that is to say, a clear rent over
and above the probable average annual cost of the repairs,
insurance, and other expenses, if any, necessary to maintain
the property in a state to command such rent.' It is in this
sense that I understand the words * beneficial occupation,'
whenever it is said that to support a rate the occupation
must be a beneficial one. For, on principle, it is by no
means necessary that the occupation should be beneficial to
the occupier. It is sufficient if the property be capable of
yielding a clear rent over and above the necessary out-
goings." The Mersey Docks Board was therefore held to
be rateable, and that decision is now the leading au-
thority {a).

Where the occupiers, holding land for public purposes,
are restricted by statute fi'om deriving the full pecuniary
benefit of their occupation, the land is to be rated to the poor-
rate with reference to the amount of profit actually made,
and not as regards the amount an occupier might earn with-
out such restrictions : Worcester {Mayor) v. Droitwich Assess-
ment Committee, 2 Ex. D. 49 ; 46 L. J. M. C. 241 ; 36 L. T.
186; 24 W. R. 336, C. A.; Liverpool {Mayor) v. Wavertree^
2 Ex. D. 55 j 39 J. P. 101.

Hospitals are rateable : St. Tliomai Hospital v. Lambeth
Overseers, 49 L. J. M. C. 23 ; 5 Ex. D. 19.

Under the Lunatic Asylum Act, 1853, 16 & 17 Vict. c.
97, s. 35, lands and buildings acquired for the purposes of an
asylum will, while used for such purpose, be assessed to the

(a) Mr. Davis, in his carefully
edited (1869) edition of Burn's
Jus. Peace, tit. " Poor," notes
the following cases which are
not now to be relied on after the
decision in Jones v. The Mersey
Docks Co.; R. v. St. LvMs
Hospital, 2 Burr. 1053- R. v.
St. Bartholome^v^s Hospital, 4
Burr. 2435 ; R. v. Waldo, 1 Bott,
182 ; Cald. 338 ; R. v. The Com-
missioners of Salter s Load Sluice,
4 T. R. 430 ; R. v. Liverpool, 7
B. & a 61 ; 9 D. & R. 781 ; R. v.
River Weaver JS^avigation, 7
B. & C. 70 ; R. V. Beverley Gas
Co., 6 A. & E. 645 ; R. v. Liver-

pool, 9 A. & E. 435 ; R. v. Ex-
imnstcr, 4 P. & D. 69 ; The Oxford
University and City of Oxford
Poor Rate, 27 L. J. M. C. 33.

Other cases on the point of
beneficial occupation may be con-
sidered in effect as overruled : R.
V. Goodchild. El. B. & El. 1 ; 27
L. J. M. C. 233 (see R. v. Sher-
ford, 36 L. J. M. C. 113 ; 38 L. J.
M. C. 78) ; Williams v. Llan-
geinmen, 1 B. & S. 699 ; 31 L. J.
M. C. 54 ; Scriven v. Fan'cett, 3
B. & S. 797 ; 32 L. J. M. C. 161 ;
R, V. St. George, Southwark, 10
Q. B. 852.

THE POOR-RATE. 397

county, parochial, or other local rates at no higher value or
more improved rent than the value or rent at which the
same were assessed at the time of the purchase or acquisi-
tion : see R, v. Fulhourne, 34 L. J. M. C. 106 ; see post,
" Prisons."

The chaplain's residence at the asylum is not within any Resident
exemption and is rateable ; his duties do not require him to officers of
be resident ; but the residence for the medical man is ^^^ ^^'
exempt under sec. 55, as he is required to be "resident in
the asylum." He is entitled to a house, &c,, reasonable for
his accommodation considering his position, and situate near
the asylum ; and the rating would be on the lower scale :
Congreve v. Upton, 33 L. J. M. C. 83.

Land cultivated by the patient lunatics, with skilled Land used
labourers, is land used for the purposes of the asylum and ^^}\ ^^aHh
the health of the patients, and to be rated accordingly under ^£ ^ hmatic
the statute : R. v. Fulbourne, supra ; see the distinction asylum,
between such occupation and the user of a farm attached
to a prison : Gambler v. Lydford, 3 E. & B. 346 ; 23 L, J.
M. C. 69 ; Smitk v. Birmingham, 7 E. & B. 483 ; S. C. R. v.
Smith, 26 L. J. M. C. 105.

Notwithstanding the plain decisions in the Mersey Docks Institute
cases, attempts have been made to exempt buildings from J, .^^^
rating which are clearly rateable ', for instance, it was sought
to exempt the Institute of the Society of Engineers as being
a society whose primary object was the acquisition and ad-
vancement of scientific knowledge : R. v. The Institute of
Civil Engineers, 5 Q. B. D. 48 ; 49 L. J. M. C. 34.

Premises occupied as a school, the occupiers of which have Industrial
received a certificate under 29 & 30 Vict. c. 118, s. 7, con- school-
stituting it a certified industrial school, are not exempt from
liability to be rated to the poor-rate : R. v. West Derby Over-
seers, L. R. 10 Q. B. 283 ; 44 L. J. M. C. 98 ; 32 L. T. 400 :
see " Reformatories," post, p. 400.

It is in the discretion of the rating authority whether Sunday and
they will exempt, under 32 & 33 Vict. c. 40, s. 1 {a), a ^^g^^J^
building used as a Sunday or ragged school, used for the ^^ ^*^ ^'
gratuitous education of children, from any rate : Bell v^
Crane, L. R. 8 Q. B. 481 ; 42 L. J. M. C. 122 ; 29 L. T,
207 ; 21 W. R. 911. As to the exemption of reformatory
schools, see Shepherd v. Bradford Churchwardens, 33
L. J. M. C. 182 ; 16 C. B. N. S. 369 ; 29 & 30 Vict. c. 117 ;

(a) Short title, "Sunday and from Rating Act, 1869." See
Ragged Schools exemptions also 3 & 4 Will. 4, c. 30,

398

THE POOK-RATE.

Charity
sebool.

Market
trustees.

Water-
works com-
missioners.

Cemetery
company.

Local ^
Board of
Health.

Union
workhouse.

Municipal
corpora-
tions.

17 & 18 Vict. c. 86 ; 18 & 19 Vict. c. 87 ; 20 & 21 Vict. c.
55.

Where the house was used as a private charity school, it
was held to be rateable : B. v. Stapletou, 32 L. J. M. C, 17 ;
see also Langklin v. Saffron Hill, 12 L. T. 542.

Market trustees receiving tolls, although there was no
surplus revenue, were hold rateable : R. v. Badcock, 6 Q. B.
786. (See " Tolls," infra.)

Commissioners and companies of waterworks were held
rateable in many cases : Cortes v. The Kent Water Works, 7
B. & C. 314 ; B. v. Longwood, 13 Q. B. 116 ; 18 L. J. M. C.
65 ; B. V. Harrowgate, 20 L. J. M. C. 25 ; B. v. Kentmere,
21 L. J. M. C. n, B. V. Manchester, 21 L. J. M. C. 160 ;
Liverpool {Mayor) v. West Derby, 25 L. J. M. C. 112; see
Public Health Act, 1875, 38 & 39 Vict. c. 55, ss. 5Q, 57 ; 11
& 12 Vict. c. 63, s. 93.

A cemetery company (under a local Act) was held rateable
for the plots sold for interment ; the consideration money
being treated as part of the annual value of the occupation
of the land : B. v. Kensington, 12 A. & E. 824 ; B. v. The
Abney Park Cemetery Company, 42 L. J. M. C. 124 ; L. R. 8
Q. B. 515; 29 L. T. 174.

The Local Board of Health was held rateable for the
occupation of a yard used for the deposit of materials for
the highways : B. v. Cooper, 23 L. J. M. C. 183.

As to rating a workhouse situate in another parish, see
Holhom Union v. St. Leonard's, 28 L. T. 106.

4 <fe 5 Vict. c. 48, was passed to render municipal cor-
porations named in schs. A. & B. to Municipal Corporations
Act rateable to the poor-rate in certain cases, which is now
extended to all municipal corporations by 16 & 17 Vict. c. 79,
s. 2, and they are so rateable in respect of all lands, tenements
and hereditaments being the property, and in the occupation
of such municipal corporations as if such lands, tenements
and hereditaments were not corporate property, any law,
usage or custom to the contrary notwithstanding ; but where
such property lies in a parish wholly within the boundaries
and limits of a city or borough (in sch. A. or B.), and in which
the poor are relieved by one entire rate, or in which city or
borough the poor within the boundaries or limits thereof, as
existing for municipal purposes at the time of the passing
the Municipal Corporations Act, were then relieved by one
entire rate, the exemption from rateability shall continue
(sec. 1), and the corporations are to be deemed the beneficial
occupiers for all rating purposes ; sec. 2.

THE POOR-RATE. 399

This Act was passed in consequence of the decisions R. v.
Liverpool {Mayor), 9 A. & E. 435 ; R. v. Exminster (Inks.),
12, ib. 2.

By 39 & 40 Vict. c. 61, s. 30, the proviso of exemption
in sec. 2 (supra) was repealed ; and now 7io corporate pro-
perty is exempt from rateability on the ground that it be-
longs to a municipal corporation.

See R. V. Oldham {Mayor), L. R. 3 Q. B. 474 ; R. v. York
{Mayor), 6 A. & E. 418.

As to a corporation's non-rat eability in respect of a common
subject to a profit d, prendre in the freemen which exhausted
the whole value of the occupation, see Lincoln {Corporation)
V. Holmes Common {Overseers), L. R. 2 Q. B. 482.

The corporation of the masters and fellows of a college .at Corporate
Cambridge were held to be " occupiers " and rateable : R. v. ^o||ies of a
Gardner, Cowp. 79.

As to rating Dissenting chapels, see R. v. Agar, 14 East, Dissenting
256 ; R. V. Liverpool, ih. ^^^P^^"'

The Crown, not being named in the statutes authorising Crown and
assessments for the relief of the poor, is not subject to the Public
poor-rate. This immunity has a wide signification; the ^^^^^^ ^'
royal palaces are not only exempt, but the House of Lords ;
so also the Government offices, as the Post Office, Horse
Guards, Admiralty {a), &c., on the ground that they are in
the service of the Crown {h).

Prisons are not rateable ; but a farm taken by the prison Prisons as
authority as an adjunct to the prison for the employment of Crown pro-
convict labour may be rateable. And so also any part of the P®^'*^'
premises which may be occupied in excess of what may be
necessary for the use of an official will be rateable ; so also
the part occupied as a canteen, or farm (p. 397) for the employ-
ment of the convicts. See Gambier v. Lydford, 3 E. & B. 483;
23 L. J. M. C. 69 ; see also R. v. The Township of Castle
Vieto, Leicester, 36 L. J. M. C. 192 ; L. R. 2 Q. B. 493.

The excess of accommodation beyond what is required for Excess of
the personal use of the official in a Government establishment accommo-
is rateable. But whether the official be married or single is ^^^^^^^g^^
to be taken into consideration in estimating the amount of

(a) See Loj'd Amlierst v. Lord bute a modified proportion lo-

Somers, 2 T. R. 372; B. v. wardsthe poor-rates in accordance

Stewart, 8 E. & B. 360 ; 27 L. J. with an assessment fixed by the

M. C. 81 ; SmitliY. Birmingham, Treasury. But this is entirely a

7 E. & B. 483 ; S. C. i? v. Smith, voluntary rate : R. v. The Post-

26 L. J. M. C. 105. master- General, 28 L. T. 337 ; 21

(V) The Government contri- W. R. 459.

400

THE POOR-KATE.

Tenants of
the Crown ;
residents
at Hamp-
ton Court.

The Crown
the lessee.

Local

police.

County
court.

Judges*
lodgings.

Reforma-
tories.

The Mu-
seum for
Practical
Greology.

The Koyal
Academy.

Govern-
ment

reasonable or necessary accommodation to be allowed for : see
Gamhier v. Lydford {supra) ; R. v. F idler j 8 E. & B. 365 ;
R. V. Stewart, ih. 360 ; 27 L. J. M. C. 81 ; R. v. Stainshy,
8 E. & B. 370 ; R. v. Breton, ih. 375 ; R. v. Foster, ih. 380 ;
27 L. J. M. C. 81.

If the premises, although beyond the precincts of the
Government establishment, be occupied by the officer solely
for the purpose of the performance of his duty, they are free
from the rating : Bedfordshire J J. v. St. Paul, Bedford^ 7 Ex.
650.

But the occupation must not be in lieu of a money
payment for rent or other expenses : Smith v. St, Michael,
CambHdge, 3 E. & E. 383 ; 30 L. J. M. C. 74.

So, although Crown property is not rateable, yet persons
occupying such property at a rental are rateable ; so also
are those occupying, by the Sovereign's permission, apart-
ments in Hampton Court, rateable, the same being held for
the subject's benefit : R. v. Lady Emily Ponsonhy, 3 Q. B. 14.
But not the housekeeper, who is a servant under the CroAvn
{ih.); see also R. v. McCann, 37 L.- J. M. C. 25; affd. ih. 123.

But otherwise where the Crown takes a lease of land
from a private person : Lord Amherst v. Lord Somers, 2
T. K. 372.

Premises occupied by the local police are exempted from
rateability : Lancashire JJ. v. Stretford, E. B. & E. 225 ;
27 L. J. M. C. 209 ; S. C, R. v. Lancashire JJ., 27 L. J. M. C.
209 ; so a county court : R. v. Manchester, 3 E. & B. 336 ;
23 L. J. M. C. 48; R. v. Worcester, 11 A. & E. 57; so
judges' county assize lodgings : Hodgson v. Carlisle Local
Board of Health, 8 E. & B. 116.

A reformatory is in the nature of a gaol, and exempt : Sliep-
pard V. Bradford, 33 L. J. M. C. 182, see arde, p. 397,
"Ragged Schools."

The Museum for Practical Geology, as being part of the
hereditary property of the Crown, was held exempt from
rating : Be la Beche v. St. James', Westminster, 4 E. & B.
385 ; 24 L. J. M. C. 74.

So the Royal Academy was held not to be rateable as
holding property of the Crown, and the council having
no beneficial occupation apart from the purposes of the
Royal Charter of George III. The council are to be con-
sidered as agents of the Crown furthering the national objects
of their charter. R. v. Shee {Sir M. A.), 4 Q. B. 2.

In Lancashire J J. v. Cheetham, 37 L. J. M. C. 12, — a case
decided since Jones v. The Mersey Dock and Harbour Com-

THE POOR-RATE. 401

pany — where a part of the county assize courts and judges' buildings,
lodgings were used by the City for their quarter sessions, when let,
&c., on payment of rent, the justices were held rateable in rateable,
respect of the part let, although the rent was insufficient to
pay the annual expenses.

Tolls, per se, are not rateable : R. v. Nicholson, 12 East, Tolls.
330 ; Williams v. Jones, ib. 346 ; R. \. Milton, 3 B. & Aid. Markets.
112; Lewis v. Sivansea, 25 L. J. M. C. 33 ; 5 E. & B. 508.
In R. V. Milton, Holroyd, J., said, " I do not mean to say that
a rate may not be made on rateable property under the deno-
mination of tolls, provided the property from which the toll
ai'ises be within the parish, and the rate be confined to that
property." Tolls are only rateable where connected with
the occupation of land ; and so market tolls, having nothing
to do with the use of the soil of the market, are not rateable :
R. V. Bell, 5 M. & S. 221 ; but the lessees of the stallage
would be : Roberts v. Aylesbury, 22 L. J. M. C. 34 ; L. R. 7
Q. B. 328; 26 L. T. 574; and see Spear v. Bodmin Union,
49 L. J. M. C. 69 ; 1 E. & B. 423 ; see also Caswell v. Wol-
verhampton, 41 L. J. M. C. 108 ; Lewis v. Swansea, 5 E. & B.
519 ; R. V. Earl of Durham, 28 L. J. M. C. 239.

In Percy v. The Ashford Union, 34 L. T. 579; 40 J. P. 502,
there was an ancient market at Ashford, founded on a charter of
Charles II. (1671). In 1856, Percy's lessors, incorporated as
a limited company, obtained a conveyance of land in the
manor, and "all the tolls, stallages," &c., arising from all
markets, ttc, held in the town of Ashford. The land occu-
pied by the market was fenced off and kept locked when not
used for market purposes. Pens were appropriated to par-
ticular owners and salesmen ; others were free for any
animals in the market. All animals paid toll for admittance
to the market. It was held that the tolls for adjnittance to
the market were incident to the soil so as to be taken into
consideration as increasing the value of the occupation, and
were not mere market tolls which could not be rated.

An important case has recently been heard, in the Q. B. D., The
on the question of rating market-tolls. The Duke of Bed- Covent
ford, as the owner of Co vent Garden Market under a Royal ?/'^?'J
Charter granted by Charles II., and subsequently embodied (.^se
in an Act of Parliament, 53 Geo. 3, c. xxxi., and 9 Geo. 4,
c. cxiii., passed for the regulation of the market, and by which
the right to take the tolls granted under the charter of
Charles was confirmed. The question raised was whether
those tolls should be estimated in the general assessment of
the market. The Assessment Committee had assessed the

402 THE POOR-RATE.

gross yearly value, including the tolls, at £12,000, and the
rateable value at .£10,000. This sum was reduced on arbi-
tration to £11,250 gross, and 9,350 net rateable value. On
this the Duke appealed to the sessions, and the sessions
were against the Duke on the rating of the tolls, excepting
with regard to the sum of £46, representing a sum received
from certain waggons, which w^ere placed in certain unoccu-
pied parts of the market. With regard to other portions of
the toll, the toll was paid, for all practical purposes, for the
use of definite places where stalls w^ere erected, which w^ere,
therefore, distinguishable from the tolls taken merely for the
use of the market. Grove, J., gave judgment (with Lopes
and Bowen, JJ.), and held that the value of the soil in the
market to the Duke was (enhanced by the specific occupation
of the soil. Where tolls were levied merely in respect of
goods brought into a market, without any definite occupation
of the soil, such tolls were in the nature of a franchise, and
w^ere not rateable ; but where a specific place had been
allotted for the sale of any particular goods, although that
place was not stallage in the sense of a stall actually erected,
still they were rateable as being in the nature of stallage ;
and there was authority to show that a very slight appro-
priation would come under the nature of stallage — for
instance, a basket used and fixed on the soil as a table (a).
The distinction really was between that which was in the
nature of stallage, and what might be described as ambula-
tory traffic. The tendency of the mind of the court was
that the tolls for the waggons were not rateable ; but with
respect to that rate the case was referred back to the arbi-
trator for further inquiry : The Duke of Bedford v. Covent
Garden Overseers, 51 L, J. M. C. 41.
Tolls for The lessee of a market is not rateable in respect of tolls
sale only received for animals brought into the market for sale, but
without j^Q^ placed in pens so as to occupy any part of the soil, the
of the soil. ^0^^ being received on the entrance of the animal into the
market : C unveil v. Wolverhampton, L. K 7 Q. B. 328 ; 41
L. J.M. C. 108; 23 L. T. 574.
Ferry tolls. Ferry tolls can only be rated as appurtenances to the land-
ing-place : B. V. North and South Shields Ferry Co., 1 E. &
B. 140; 22 L. J. M. C. 9. They cannot be excluded from
consideration ; they must be taken as enhancing the value of
the land used for the purpose of earning the tolls. On the

(a) See Bones v. Fenmck, 43 L. J. M. C. 107 ; L. K. 9 C. P.
339.

^ THE POOR-RATE. 403

same principle the toll-house will be rateable : Williams or
R. V. Bedmiiister Committee, 45 L. J. M. C. 117 j 1 Q. B. D.
503 ; 34 L. T. 795 (see E. v. Gloucester, Cald. 262, ante).

The lessee of a toll traverse, who is not the occupier of TqJi ^ra-
any of the land in respect of which the toll arises, is not verse.
rateable : E. v. Srwivden, 4 B. & Ad. 713 ; if an occupier he
is rateable : R. v. The Marquis of Salisbury, 8 A. & E.
760.

A corporation in the possession of land, with the right of
taking toll, is primd fade liable to be rated : Worcester v. St.
Clement's, 22 J. P. 319.

Tolls earned in respect of lighthouses are not in general Light-
rateable : R. V. Relest, Cald. 155, 351 ; R. v. Teignmouth, house
12 East, 46; R. v. Coke, 5 B. & C. 797; R. v. Fowlce, ib. ^°^^«-
814. But in a MS. case stated by Mr. Glen (1 Glen's Poor
Law Statutes, 40) : The Blyth Hai'bour Dock Co. v. The
Teignmouth Union, where the harbour commissioners had
found it desirable to put up a lighthouse in order to induce
ships to come into the harbour, and thereby more dues were
earned, the lighthouse was held to be rateable.

Tolls connected with a towing-path or toll-gate : R. v. The ToAving
Mayor of London, 4 T. R. 21 ; or with a lock on a canal : P^*^'
R. V. The Aire Navigation, 3 B. & Ad. 139 ; R. v. Marquis Canal
of Salisbury, 8 A. & E. 716 ; i?. v. Coke, 5 B. & C. 797 ; or a ^°f^''
sluice upon a navigable river, in relation to which tolls were ^^^^
paid by vessels passing: R. v. Cardington, 2 Cowp. 581; see '

R. V. The Trent and Mersey Navigation Co., 1 B. & C. 545 ;
R. V. Palmer, ib. 546; tolls for anchorage ground: R. v. Anchorage
Earl of Durham, 28 L. J. M. C. 232. These and the like, *°^^^-
being connected with and incident to the use of the land, are
rateable : see R. v. Bell, 3 M. & S. 221.

The 43 Eliz. c. 2, s. 1, enacts that the parson, vicar, and Tithes (a),
occupiers of " tithes impropriate, and propriations of tithes"
shall be rated ; and Dal ton says, " Every clergyman is to be
rated for his glebe and tithes according to their yearly value,
so long as they are in his occupation:" Dalt. Just. c. 73
(1742); R. V. Hopkins, 3 Keb. 235.

Under the Parochial Assessment Act, 1836, 6 & 7 Will. 4,
c. 96, s. 1, all rates are to be made on the net annual value
of the property ; to that section there is a proviso "that
nothing lierein contained shall be construed to alter or affect
the principles or different relative liabilities (if any) accord-

(d) For an interesting account of the law relating to tithes, see
Castle on Bati^g, p. 303.

404

THE POOR-RATE.

Curate's
stipend
not to be
deducted.

ing to which different kinds of hereditaments are now by law
rateable."

Sir W. Follett in R. v. Capel, 12 A. & E. 382 ; and Sir
Fitzroy Kelly in R. v. Goodchild, E. B. & E. 1 ; 27 L. J. M.
C. 239 ; stated that it was an historical fact that that proviso
was inserted to prevent the inequality which would have
resulted from assessing tithes at their full annual value
while other real property was assessed only at rack rent.

But Lord Denman said, in R, v. Cajyel {supra)^ that the pro-
viso had no such effect. And it was held that the tithe rent
charge in lieu of tithes is to be assessed like other property,
according to what it might reasonably be expected to be let
for from year to year : see also R. v. Joddrell^ 1 B. & Adol. 409.

The allowances and deductions specified in the Parochial
Assessment Act cannot apply to a tithe rent charge. But the
principle on which the rent charge is to be assessed is to be,
like all other property, according to what might reasonably
be expected to be obtained as rent' from year to year, for the
maintenance of the rent charge does not depend on the
curate's stipend, and the rateable value to the poor-rate must
not he confounded with the remunerative value to the incum-
lent : R. v. Sherford, 36 L. J. M. C. 113 ; L. R. 2 Q. B. 503;
8 B. & S. 596, on the question of allowing as a deduction
the curate's stipend, overruling the Hackney case, R. v.
Goodchild (a), on the authority of The Mersey Bocks Cases,
11 H. L. C. 443; 35 L. J. M. C. 1 ; the principle of the
decision in those cases being (said Blackburn, J.), that
when a person is in occupation of property capable of yield-
ing a profit, the occupier is rateable in respect of that profit,
and it is quite immaterial to whom it is paid. If the tithes
were rendered in kind, and were rented, the lessee would be
rateable in the same amount, whether the whole rent were
paid to the incumbent, or part went to a curate ; and in de-
ciding upon the amount, the nature of the property is to be
regarded, and it is to be considered whether a profit can be
looked to or expected, as in the case of farms ; and whether
anything over the expenses for collecting, and the allowances
for bad debts and law expenses, would be necessary to in-
duce a tenant to take. These questions are to be deter-
mined according to the circumstances of each particular

(a) See B. v. Goodchild, reject-
ed on by Cockburn, C. J., in
UlieeJer v. Barmiyigfon, 1 B. & S.
726, 727 ; 31 L. J. M. C. 62 ; and by
Blackburn, J., in Williams v.

Llangeiniven, 1 B & S. 708 ; .81
L. J. M. C. 57 ; and which cases,
with Fawcett v. Scriven-with-
Tentergate, 32 L. J. M. C. 161 ;
3 B. & S. 797, are also overruled.

THE POOR-RATE. 405

case : per Crompton, J., R. v. Goodchild, R. v. Lamb, and
R. V. Hawkins, 27 L. J. M. C. 233, 254 j E. B. & E. 1.

Deductions will be allowed in respect of expenses for col- Deductions
lection, including commission, law expenses, and bad debts, to be made,
losses by ultimate non-payment, the poor-rate, the general
rate, lighting rate, tenants' property-tax, and tenants' rates,
tenths, and ecclesiastical dues ; but not landlord's property-
tax, or land-tax. No deduction is to be made for the
curate's stipend, although his services may be essential.

A payment made by the incumbent to Queen Anne's
Bounty is not a charge to be deducted from the tithe rent
charge in order to ascertain its rateable value: R. v. Lamher-
hurst, 27 L. J. M. C. 248; 31 L. T. 9; R. v. Goodchild
(supra).

See further, as to deductions, R. v. Joddrell, 1 B. & Ad.
403; R. V. Groves, 29 L. J. M. C. 179 ; Lawrence v. Tolleshurst
Knights, 31 L.' J. M. C. 148.

Promoters taking lands under the Lands Clauses Consoli- Lands ac-
dation Act, 1845, s. 133, are liable to make good any defi- quii'ed
ciency in the assessments on the land taken by them. The Lands * ^
promoters are to pay any deficiency, but it does not render clauses
them liable to be rated ; and, as Willes, J., remarked, " The Consolida-
intention of the statute was, that the corporation should pay ^ion Act,
the deficiency as to any houses pulled down, not that it '
should be rated for them : " The Mayor of London v. St.
Andrew's, Holhorn, 36 L. J. M. C. 95. See also Stratton v.
Metropolitan Board of Works, L. R. 10 C. P. 76 ; 44 L. J.
M. C. 33 ; 31 L. T. 673 ; 23 W. R. 447 ; R. v. Metropolitan
DistHctRy., 40 L. J. M. C. 113; L. R. 6 Q. B. 698; also
Whitechurch v. The East London Ry. Co., 41 L. J. M. C.
123; L. R. 7 Ex. 248, 424; L. R. 7 H. L. 81; 43 L. J.
M. C. 159, overruling on the point, when the works are to
be considered as complete in each parish : R, v. The
Metropolitan DistHct Ry., supra.

The railway having been completed for traffic, the prin- Railways,
ciple on which the proprietors are to be assessed was first Principles
fully laid down in the early cases : R. v. The South- Western o^ mating
Ry. Co., 1 Q. B. 558 ; 11 L. J. M. C. 93 ; R. v. The Gi^and ^^e Colrt
Junction Ry. Co., 4 Q. B. 18 ; 13 L. J. M. C. 94 ; 1 N. S. C. of Queen's
303, and R. v. The Great Western Ry. Co., 6 Q. B. 179 ; Bench.
15 L. J. M. C. 80. The South- Western Railway earned
their profits by receipt of fares on their own line ; the other
companies had, in addition, branch lines attached to their
system, from which they also secured income. The court
laid it down that in each case the inquiry must be the same —

406 THE POOR-RATE.

what is the value of the occupation from whatever source
derived]" In neither can the profits of trade as such be
brought into the rate ; but if the ability for carrying on a
gainful trade upon the land adds to the value of the land,
that value cannot be excluded, because it is referable to the
trade. It is what the occupation of the land gives the
means of doing or enjoying which regulates the rent a tenant
can give. A lessee of a railway would consider the facilities
and advantages which the occupation as tenant would afford
him of carrying- on a locomotive trade as carrier, and in
whatever proportion that consideration would increase the
rents, in the same proportion, after due allowances, would
his rate be raised also.

Two propositions are equally true : that the rate is not
to be imposed in respect of the profits of the trade ; and
that it is to be imposed in respect of the value of the
occupation. The gross yearly receipts of the company as
occupiers of and carriers on the railway must at least include
tlie proper subject-matter of the rate.

In these cases, the first starting-point was to fix the
annual gross earnings. From these certain deductions were
made; Istly, £5 per cent, on the capital assumed as neces-
sarily employed in the trade in the purchasing of engines,
&c. ; 2ndly, £20 per cent, on the same sum for tenants'
profits; 3rdly, £12 10s. per cent, on the same sum for
depreciation of stock, considered to be in the hands of a
tenant from year to year, beyond all needful and usual
annual repairs and expenses ; 4thly, a sum representing the
annual cost of conducting the trade ; 5thly, the annual
value of all the land occupied by stations, &c., and elsewhere
rated (a) ; and 6thly, a sum per mile for the reproduction of
rails, chairs and sleepers. These deductions, the Court con-
sidered, included whatever was properly referable to trade,
and distinguished from the increased value which that trade
gave to the land ; and the residue must represent the value
of the occupation, and thus the profits of the trade are
excluded, and the advantages and privileges which the
company possess are attributable to their occupation, and
would pass with it : see post, the case before the Railway
Commissioners, the Manchester, Sheffield & Lincolnshire Ry,
Co. v. Glandford & Brigg Unions, 32 L. T. 264.

(a) R.Y. Eastern Counties Ry. M. C. 184 ; R. v. Hie West 3Iid-
Co., 9 Jur. 1339 ; R. v. MUe End diesex Water Works, 28 L. J.
Old Town, 10 Q. B. 219 ; 16 L.J. M. C. 135.

THE POOR-RATE. ' 407

In i?. V. The North Staffordshire Ry. Co., 30 L. J. M. C. 68, The North
a question was put to the Court whether the appellants were Stafford-
entitled to a deduction for interest on capital and tenants' s^^^^^^^^^"
profits upon a sum of £52,950, the additional amount of ^^^ ^^^®'
capital invested in turn-tables, cranes, weighing-machines,
stationary steam-engines, lathes, electric telegraph and ap-
paratus, office and station furniture, and gas-works. The
Court replied that the articles might be divided into three
classes : first, things moveable, such as office and station
furniture ; secondly, things so attached to the freehold as to
become part of it ; and thirdly, things which, though capable
of being removed, are yet so far attached as that it is
intended that they shall remain permanently connected with
the railway, or the premises used with it, and remain per-
manent appendages to it as essential to its working. It is
clear that in respect of the first class of articles a deduction
should be allowed, and no deduction on the second. And
as to the third, the question was finally settled by R. v. Tlie
Southampton Dock Co., 14 Q. B. 587; 20 L. J. M. C. 155,
which held, on the authority of R. v. The Bwmingham d;
Staffordshire Gas Light Co., 6 A. & E. 634, that such property
was not to be considered as stock-in-trade, but as machinery,
and should be assessed in combination with the real property.
So also as to the railway sleepers. Great Western Ry. v.
Melksham, 34 J. P. 103.

No deduction is to be made on account of goodwill : R. v.
The Grand Junction Ry. Co. (supra).

In a case before the Railway Commissioners in 1875, the Principles
question of the method of rating railways and docks ?^^fV"^.,^^
came under review; and it was suggested that prior to 1862, j^ailway
when the Assessment Committees were established, railway Commis-
companies had been much under-rated. The following rules sioners.
were then laid down by the Railway Commissioners as the
proper method, in their view, of ascertaining the rateable value
of railways and docks : —

1. A better criterion of the receipts due to the portion
of the line of railway, within the limits of a certain parish,
may be gained by taking the average mileage receipts of the
whole Ime, than by taking a mileage division of the gross
rates, less the amount charged at each end for collection and
delivery, although every line may not have equally contri-
buted to the receipts of the whole line (a).

(«) See ante, the leading cases, Grand Junction Ry. ; R. v. Great
U. V. South Western Ry. ; R. v. Western Ry. in the Q. B.

408 THE POOB-RATE.

2. Whatever part of a goods-rate covers ordinary station
work at a terminus, it should all be taken to be receipts of the
line to which the terminal station belongs (a).

3. The railway company provided the working stock of
another line of railway, the company being paid at the rate
of Is. Id. per train mile, and afterwards by a percentage of
SSg^ upon the total traffic receipts ; and the amount received
on that account in one year was £7, 254. The Commissioners
held that that sum should be taken as the aggregate amount
of the expenses for locomotive power and repairs of carriages
and waggons, and relative services^ and be divided amongst
the parishes according to the train miles run in each.

4. It was further held that there should be no deduction
made for profits on capital ; but that there should be a
deduction for tenants' profits as distinct from profits on
capital ; and that the amount be 5 per cent, upon the gross
receipts, such percentage to cover outlay in floating capital,
stores, furniture and the like.

5. The main line of a railway company ran through a certain
parish for a distance of two miles and eight chains. The gross
receipts in the parish were ascertained by dividing the gross
rates by mileage between the forwarding and receiving
stations after deducting, in the case of the merchandise traffic,
the amount charged at each end for collection and delivery.
This was held to be a proper mode of calculating such
receipts, provided a deduction for cartage was made at the
clearing-house, and that, as regarded local traffic, only what
the company should expend in carting goods, carried at
carting rates, and a reasonable profit thereon, should be taken
off" the gross rate.

6. The railway company owned and occupied certain docks,
which, on their seaward side, were employed in the accommo-
dation of shipping, and the transit of goods by sea. In
other respects they were an adjunct of the railway ; it was
held that the company were liable to be rated for the same,
but that the rate should be ascertained in the following
manner :

From the estimated value of the docks should be deducted
the value of such portions as gave to the company an income
arising from dock dues and the like, so as only to charge
them with expenses relating to the maintenance and repair

(rt) See TJie Eastern Counties By., 32 L. J. M. C. 174 ; 4 B. Jc
liij. V. Great Ammell, 8 L. T. S.'58.
419 ; S. C, R. V. Eastern Counties

I

I

THE POOR-RATE. 409

of the docks, locks and wharves, the hydraulic apparatus,
and the pay of the staff employed in and about the ad-
mission and dispatch of vessels ; and if the receipts were not
■equal to the exj^ense, the company should only be rateable
for this laud according to its unimproved value, the other
receipts in the docks being brought into the company's
railway account : TJie Manchester, Sheffield <6 Lincolnshire
Uy. Co. V. The Caistor and Glanfroid Brigg Unions, 32 L. T.
264 : the Railway Commissioners' Court {a). See A*, v.
The Rhymney Ry. Co., 38 L. J. M. C. 75 ; 10 B. & S. 198.

Where there is a much heavier expense in one parish, in Local
consequence (for instance) of coal mines being in the parish expenses.
which cause a larger expenditure in maintaining the per-
manent way than in other parishes where there are no coal
mines ; in assessing the assessable value of the railway in
such parish the proper deduction for expenses of the per-
manent way was to be treated as a local expense in that
parish regardless of the average cost along the whole line of
railway : London and North-Western Ry. v. Harhorne, 34 J. P.
644 ; see The Coventry Canal Case, 1 E. & R 572 ; 28 L. J.
M. C. 102; Great Eastern Ry. v. Hauqhley, 35 L. J. M. C.
229; L. R. 1 Q. B. 166; 7 B. <fe 8.^624; 14 L. T. 548;
London and North-Western Ry. v. Kings Norton, 34 J. P..
102.

The parish authorities are authorized to take into con- Branch
sideration, in assessing the annual value of a branch line, lines.
the fact that other companies are willing to pay a large rent
as an element in ascertaining the rent which a yearly tenant
would give for it : R. v. The London and North- Western Ry.
Co., 43 L. J. M. C. 81 ; L. R. 9 Q. B. 134 ; 29 L. T. 910.

Branch lines rented by the principal company although
worked per se at »loss are rateable. The occupation is still
beneficial ; and the expenditure is more like money laid out
as an improvement for which no deduction should be made :
R. v. G7-eat Western Ry., 6 Q. B. 179 ; 15 L. J. M. C. 80;
R. V. Goldington, 43 L. J. M. C. 81.

The value of railway stations is enhanced to some extent Railway

stations,

(a) This judgment of the Rail- The rule as laid down by the Coin-
way Commissioners, carefully and missioners would not probably be
elaborately prepared, materially recognized by the Q. B. D. as over-
interferes with the principles ruling their previous authorities,
laid down by the Court of The ultimate result of the appeal
Q. B. and which for some 3^ears would then rest with the par-
have been the recognized prin- ticular court having to decide it.
ciples for the rating of railways.

410 THE POOR-RATE.

by their being connected with earnings of the railway : R.

V. Easteim Counties Ry., 32 L. J. M. C. 174 ; R. v. Mile End Old

Tmvn, 10 Q. B. 208; 16 L. J. M. C. 184; recognized and

explained in R. v. West Middlesex Water ii/arks, 28 L. J. M. C.

135.

Not rate- The railway is not to be assessed in accordance with the

able on value of the adjoining land : R. v. Manchester S. Junction and

''j!"? '^^ Altrincham Ry. Co., 15 Q. B. 396, n.

land ^^ to the rateable value of a railway station, see R. v.

Shemrd, 33 L. J. M. C. 5.
Running The value of having the right to running powers over

powei-s. another line out of the rating parish should be taken into
consideration in fixing the value of the line in the parish,
although no toll was paid in respect of the right. The
line was enhanced in value and the company held rateable ;
and that the rate ought to be made on the principle of
assessing the profits made in the parish, enhanced by
the right to run free over the line : Great Western Ry,
Co. V. Badgworth, 36 L. J. M. C. 33; L. K 2 Q. B. 251 ;
see Midland Ry. Co. v. Badgworth, 34 L. J. M. C. 25.

Tolls paid to another company on passenger traffic passing

over their line in other parishes should be deducted to get

the net value: R. v. St. Pancras, 3 B. & S. 810; S. C,

lYorth Lmdon Ry. v. St. Pancras, 32 L. J. M. C. 146.

Tramways. In assessing tramways under the Tramways Act, 1870,

3;} & 34 the annual gross receipts for traffic earned over the entire

c. 78. gygtem will be taken as the basis of the estimate of the rent,

and the net receipts in each parish as the criterion of

the rateable value in each parish : London Tramways Co.

V. Lambeth (Edlin, Q.C., Assistant Judge, Middlesex Sessions),

31 L. T. 319 ; see Pimlico Tramway Co. v. Greenwich, L. R.

9 Q. B. 9 ; 43 L. J. M. C. 29 ; 22 W. R. &1, in which it was

held that the owners of tramways are rateable to the poor

rate, although the public still continue to use the surface of

the rails as part of the highway.

In rating a tramway, the general expenses, except horse
expenses, should be allowed proportionably to the number
of car miles run over in each parish of the service route.
And the fairest apportionment of the receipts would be by
dividing the receipts from each district in proportion to
.the lineal mileage of such route in each parish : London
Tramways Co. v. Lambeth, 31 L. T. 319.
Canals. Under the Regulation of Railways Act, 1873, 36 k 37

Vict. c. 48, s. 3, " the term ' canal ' includes any navigation
which has been made under, or upon which tolls may be

THE POOR-RATE, 411

levied by, authority of Parliament, and also the wharves and
landing-places of, and l)elonging to, such canal or navigation,
and usecl for the purposes of public traffic ; " — *' and the term
* canal company' includes any person being the owner or
lessee of or working, or entitled to charge tolls for the use
of any canal."

For rating purposes the canal will be treated as no more
than a road covered with water, and rateable as land at
the lower amount : M. v. 27ie A^eath Canal Co., 40 L. J. M. C.
193 ; L, R 6 Q. B. 707.

Canal tolls, eo nomine^ are not rateable ; but the subject- The tolls
matter out of which the toll arises being one mentioned in eo nomim
the statute, namely, land, as the object of a rate, then the "^* ^^*^'
canal may be rated by name, and the tolls which constitute
its profit may thus be made to contribute to the relief of
the poor and the canal company be rateable in respect of the Rateable
land they occupy in every parish through which the canal in each
passes, and for that value which the land there produces, P^nsh the
The traffic in some parishes may be greater than in others, ^^^g^.
or the rates may be unequal, and thus the net profits, throiT^h.
which constitute the value of the land used for the canal,
may vary in diflferent parishes, the rate must then vary in
proportion : see pet' Bayley, J., B. v. Kingstvinford, 7 B. & C.
237; and that learned judge, in E. v. The Oxford Canal Co.,
said, " The company are rateable in each parish for the net
annual profit of the portion of the canal lying in the parish ;
in other words, for what the canal in each parish earns."
See also R. v. Lower Mitton^ 9 B. <fe C. 810 : R. v. Milton,
3 B. & Aid. 112 ; i?. v. Palmer, 1 B. & C. 546 ; Trent and
Mersey Navigation Co., IB. & C. 545. This principle was
followed in the judgment in R. v. The London and South-
western Railway, 1 Q. B. 558; 11 L. J. M. C. 93 : see also
l^he Brighton, South-E astern, and Midland Railway Com-
panies' Cases, 15 Q. B. 313 ; 20 L. J. M. C. 124.

The principle of R. v. Kingswinford was again recognized
by Lord Denman in R. v. Woking, 4 A. & E. 40 ; but in-
asmuch as the earnings through trade was one gross
sum for the whole line, and all parts were equally profitable,
the rate w^ould be in the mileage calculation with reference
to the whole distance. See R. v. Stafford and Worcester
Canal Co., 8 'i\ R. 340; R. v. The Earl of Portmore,
1 B. & C. 551 ; R. v. Hull Dock Co., 18 Q. B. 325 ; 21 L. J.
M. C. 153; R. v. The Biistol Dock Co., 1 Q. B. 535;
1 G. & D. 76.

In R. V. The Coventry Canal Co., 28 L. J. 102—104,

T 2

412 THE POOR-RATE.

Lord Campbell pointed out the difficulty of applying the

Parochial Assessment Act to canals and railways passing

through many parishes, and the courts were driven to dispose

of all those cases in the best way they could.

Expense of jt was, in that case, held that the expense of maintaining

to'^be ^^^ locks in a parish was not to be deducted from the gross

deducted, earnings of the canal in the parish, as it was not a local cost,

but ought to be thrown on the whole line of canal.
Rate in By the private Acts of the canal navigation from Leeds to

like Liverpool authorized to make the canal and charge tolls, it

otheiTands ^^''^^ provided that the company should be assessed for their
Ji. V. Leeds property " in like manner as lands of a like quality, and as
and Liver- dwelling-houses, <fec., of a like and similar size, &c., in the
poof Canal respective parishes, &c., where the same should be situate
Lompany. ^^ should be assessed or charged. It was held ; —

1. That the land occupied by the canal basins and towing-
paths, being part of the original, was to be rated according
to the general value borne at the time of the rate hj land
immediately adjoining, including the value the land derived
from its vicinity to a canal.

2. That land occupied by cuts and basins not being in a
prescribed line was to be rated on the same principle.

3. That wharves and quays adjacent to the cuts and basins
were to be rated as similar property adjacent, including the
value which such property derived from their vicinity : R,
f . The Leeds and Liverpool Canal Co., 7 A. & E. 671 ; 7 L. J. M.
C. 41; Local Act, 59 Geo. 3, c. cv. s. iv.; The Glamorganshire
Canal Co. v. St. Mary, Cardif, 29 L. J. M. C. 238 ; 2 L. T.
N. S. 694; 3 E. & E. 186.

Under a similar provision in a Local Act, 52 Geo. 3,
c. cxcv., 8. ci., it was held that the land occupied by the
canal was to be rated as open land which never could be
built upon, but which might perhaps have some enhanced
value from its proximity to the canal and adjoining build-
ings as applicable to any purpose except building purposes :
The Regent's Canal v. St. Fancras, 3 Q. B. D. 73 ; 47 L. J.
M. C. 37. See also R. v. The Grand Junction Canal Co., 1 B.
& Aid. 289 ; Regent's Canal Co. v. Hendon, 6 E. <fe B. 852 ;
3 Jur. N. S. 208. And see The Grand Junction Canal Co. v,
Hemel Henvpstead, and same v. Kings Langley, L. K. 6 Q. B.
173 ; 40 L. J. M. C. 25 ; 42 L. T. 228, in which R. v. G. J.
Canal Co., 7 W. R. 597, and the Glamorganshire case (supra)
are discussed.
Water- In the recognized leading case on the rating of waterworks :

works. ^. V. Mile End Old Tomi, 10 Q. B. 210 ; 16 L. J. M. C. 184,

THE POOR-RATE. 413

the East London Waterworks Company was possessed of
works situate in several parishes consisting, first, partly of
works directly productive of profitj being service-pipes which Service-
delivered the water to the consumer, and, secondly, partly of pip^^*
works indirectly producing profit, as the buildings, mains,
reservoii'S, &c., which assisted in bringing the water to the
service-pipes. The net annual rateable value of the entire
works was estimated at £30,800. The second portion was
rated in the ordinary way by valuing the land with the
buildings and fixtures thereon, and the amount of rate so
ascertained was deducted from the sum of the rateable value,
and distributed to the districts in which the parts of this
portion were situated. An analogous course w^as adopted
for railways in R. v. The London and South-Western liy. Co.,
R. V. The Grand Junction Ry. Co., and for gas companies,
R. V. The Cambridge Gas Co. Also, the spring, which in- Spring,
directly conduced to the ultimate profit by water-rate, was
held rateable in the parish where it was situate, in R. v. 21ie
Neiv River Co., 1 M. & S. 503, the quantum of the rate
being left to the sessions.

The reservoirs will be assessed as land, independently of Reservoirs,
their contributing to the earnings of the canal : TJie Birming-
ham Canal Navigation Co. v. Birmingham, 19 L. T. 311 {a).

The remaining stejD was to apportion the residue of the
rateable value among the districts in which the direct pro-
ductive portion of the works was situate, in the ratio either
of the net profits or of the gross receipts, or of the quantity
of mains and pipes, and of the land occupied by the company
in each district, each ratio giving the same result. If they
differed it would be necessary to make a selection between
them, and that ratio should be preferred which would best
show the rent to be expected if the part of the works
situate in the district were let separately. It was clear the
net profits in each parish would be the best criterion of such
rent, and they would therefore give the proper ratio. It is
also clear that the ratio of the gross receipts and earnings in
the several districts to each other will be the same as the
ratio of the net profits in those districts to each other in all
cases where the total expense is taken to be common to the
whole apparatus, and deducted from the total of receipts
in the progress of ascertaining a rateable value. For in such

(rt) Mr.W.C. Glen writes of this the report." Liimley's *• Law of
case : " It is not easy to determine Parochial Assessment," p. 126.
the point actually decided from

414» THE POOR-RATE.

case the net profits in each district would be ascertained by
distributing the expense among the several districts, and it
would be distributed in the ratio of the gross receipts in
each ; and if a proportional deduction should be made from
the gross receipts in each, the ratios of the remainder to each
would be the same as the ratio of the gross receipts. As
any attempt to ascertain the net profits in each district in
any other way would lead to minute and inconvenient
inquiries in practice, the ratio of the gross receipts should
be adopted, as being an index of the net profits, when the
rateable value is ascertained. We think that an apportion-
ment in this sense, according to the gross receipts, is in
accordance with the decisions which have apportioned the
sum of rateable value from a railway or canal according to
the length of line in each parish. See R. v. Kinyswinford, 7 B.
& C. 256 ; R. v. Woking, 4 Ad. & E. 40. Where the profit
arises from transit, the line of the canal or railway is directly
productive of the profit, and the reservoirs, warehouses,
stations, &c., indirectly conduce to such profit. Each portion
of the line earns an aliquot portion of the profit, and if equal
portions of one line, caiTying at one rate, could be conceived
to be let separately, no one portion would be let at a higher
rate than the other, and an apportionment of a sum of rate-
able value, according to the length of the line in each parish,
would be according to the rent to be expected for that part
of the line. In the case of water companies, where the
profit arises from the delivery of the water at a given place,
the previous transit being immaterial to the consumer, the
ser\'ice-pipes immediately produce the profit, and the agency
by which the water reaches those pipes indirectly conduces
to such production. If the service-pipes in each parish
could be let separately, the water being assumed to be sold
at the same price throughout, the criterion of the rent would
be found in the gross receipts, which would depend on the
number and diameter and level of the service-pipes in each
parish, and an apportionment according to the gross receipts
in each district would be according to the rent to be expected
from the part of the rateable subject situate in such district.
This apportionment is not at variance with the grounds of
the judgment in 7?. v. The Cambridge Gas Co. By the
method adopted in this case, the rateability of the portion of
the apparatus indirectly conducing to produce profit is pro-
vided for, and the residue of the sum of rateable value is
apportioned to those parts of the apparatus directly pro-
ducing profit in analogy to the mileage proportion for canals

THE POOR-RATE. 415

and railways : see also E. v. The West Middlesex Wafericwh
Co., 28 L. J. M. C. 135 ; 1 E. & E. 716 ; Tfie Chelsea Water-
works Co. V. Putney, 29 L. J. M. C. 236.

A watercourse in connection with mining operations is to
be rated at its enhanced value in reference to the mine :
Tarlargoch Alining Co. v. *S'^ Asaph, 37 L. J. M. C. 149,

Commissioners under a local Act erected waterworks, from
whence they supplied a township. All the money raised by
them was to be applied to the purposes of their Acts; and
as soon as the mortgage debts should be paid off, the water
rents were to be reduced, so that the proceeds should only
cover the current expenses of executing the powers of their
Acts. It was found in the case that no tenant could pay
any rent for the works under the restrictions ; but it was
held that such restrictions had no bearing on the reduction
of the rate : R. v. Longwood, 21 L. J. M. C. 215 (see also
the Mersey Docks cases, infra).

Although, as before stated, profits of trade are not to be (3ras com-
rated, in finding the rateable value of gasworks, in R. v. The panics.
Sheffield Gaslight Company, 32 L. J. M. C. 169, 172 ; 4 B. k S.
135, the gross annual receipts for the sale of the gas and re-
siduary products and for hire of gas-meters and fittings and
work done, were taken from the last published accounts of the
company, and from those gross receipts the net receipts were
obtained by deducting the gross expenditure, and a fair sum
for tenant's profits, interest on capital, rates and taxes, cost of
renewal, repairs, insurances, and renewal, of plant and mains ;
the sum remaining being taken as a true estimate of the net
annual value of the works of the company. From this net
value was deducted a sum on account of the net rateable
value of the stations, works, and buildings lying in the
rating township, and contributing indirectly to the profits
rateable only to the poor within the tow^nship in which they
lay; the remainder, after this last deduction, being distributed
among the several townships into which the mains extended,
by apportioning to each of them so much as represented the
extent of the mains they contained. The sum thus appor-
tioned w^as added to the rateable value of the stations, ttc,
and land, and the total of the two sums was taken to be the
net annual value of the several hereditaments belonging to
the company, and lying within the township. Blackburn, J.,
in giving the judgment of the court, said : — " As to the mode
at which the respondents have arrived at the value of the
entire subject, it seems to us that if the proper allowance
for the expenses and for tenants' profits and interest on

m

THE POOR-RATE.

Tenants'
profits a
question of
fact.

Machinery
of gas-
works.
See post,
p. 423.

Docks.

capital has been made, and the proper value has been put
upon the stations, works, and buildings, ttc, a proper mode
has been adopted for obtaining the rateable value of the
remaining property." We think that what is left after these
allowances is the rent which the hypothetical tenant — to
adopt the phrase used in H. v. The West Middlesex Water-
works Company, 1 E. & E. 716 ; 28 L. J. M. C. 135— would
give for the rest of the apparatus. The proper rate to be
allowed for tenants' profits and interest on capital is entirely
a question of fact, and should be ascertained by the sessions
or arbitrator as a fact. The principle on which the stations,
works, buildings, &c., are to be valued as laid down in li, v.
Mile End Old Town, 12 Q. B. 208 ; 16 L. J. M. C. 184 j and li.
V. West Middlesex Waterworks Company, is, that they are to
be valued as fixed property, deriving some additional value
from their capacity of being used as part of the gasworks, a
rule which in practice it is found not difficult to apply, though
it is not theoretically very definite. The mains and pipes must
be considered, as in R. v. TJie West Middlesex Waterworks Covi-
pany, as directly, and in part as indirectly, contributing to the
profits. That case gives an exposition of the Parochial Assess-
ment Act, and which was considered practically impossible
to carry out satisfactorily. The rule was drawn up that the
method to be adopted was to apply the principles as ex-
plained in jR. V. The West Middlesex Watetivorks Company y as
reported in 1 E. & E. 716.

The question still is, *' What will a tenant be willing to
give for the gasworks to carry on the same business % " R. v.
The Birmingham Gas Company, 1 B. & C. 506 ; see R. v.
Cambridge Gas Company, 8 A. & E. 723.

The retorts, purifiers, steam-engines, boilers, and moveable
parts of gas-holders appear to be attached to the inheritance
for the permanent improvement of the works, — ^pozo' tin
projit del inheritance, — and being absolutely essential for the
working the manufactory, are considered as part of the gas-
works, and included in the value of the premises for the
purpase of rating: R. v. Lee, Inhs. 35 L. J. M. C. 105 ; L. R.
1 Q. B. 241 ; see also Laing v. Bishop Wearmoutli, 47 L. J.
M. C. 41 ; 3 Q. B. D. 299 ; 26 W. R. 357.

Similar principles are applicable to the rating of docks
as those which relate to railways or canals.

Where the docks are in the occupation of a corporation
board established under an Act of Parliament for public
purposes, there is no exemption from rateability. See Jones
V. The Mersey Docks and Harbour Co., 11 H. L. C. 443 ;

THE POOR-RATE. 417

35 L. J. M. C. 1. And where there are no shareholders or
persons deriving any personal advantage or emolument what-
ever from the money received by the board, the corporation
is not entitled to deduct a sum for tenants' profits in addi-
tion to the cost of collecting the rates : The Mersey Docks
and Harbour Co. v. Liverpool^ L. R. 9 Q. B. 84 ; 43 L. J.
M. C. 33.

Warehouses, workshops, sheds, &c., which are connected Dock ware-
with the docks, but which are capable of an independent and houses
separate beneficial occupation, are rateable at the enhanced p''^P^"^^ ^^
value which a tenant from year to year would be expected dg^^ q^^^.
to give for them : TJie Mersey Docks and Harbour Board v. pation.
Birkenhead, L. R. 8 Q. B. 445; 42 L. J. M. C. 141 ; 29 L.
T. 454 ; 21 W. R,. 913 ; Newport Dock Go. v. Newport Board
of Health, 2 B. & S. 708.

As to the rating of buildings belonging to the docks let Dock
for the accommodation of storing goods, where the board has buildings.
not parted with the exclusive occupation, see Allan v. Liver-
pool Overseers, and Inman v. Kirkdale Ovo'seers, L. R. 9 Q.
B. 180 ; 43 L, J. M. C. 69 ; 30 L. T. 93 ; 22 W. R. 330.

Docks are rateable as land covered with water, and should Dock tolls,
only be assessed for such dues and tolls as are paid for the
actual user of the docks ; and not for dues paid by way of
compensation for the docks without user. See B: v. The
Bristol Docks Co., 1 Q. B. 535 ; R. v. The Hull Dock Co.^
7 Q. B. 2; 14 L. J. M. C. 114.

Where docks, belonging to one company, are situate in Docks in
separate parishes on difltferent sides of the river, they are to be several
separately rated : see The Mersey Docks and Harbour Board v. Parishes.
Liverpool, L. R. 7 Q. B. 643 ; 41 L. J. M. C. 161 ; 20 W. R.
827 ; 26 L. J. 868 — ante, p. 391 ; and which may be dis-
tinguished from the Hull and Bristol Docks cases {supray
See as to where a farm is situate in separate pai'isheS) ante^
p. 390 ; or mines, post, p. 421.

The Rating Act, 1874, 37 & 38- Vict. c. 54, s. 3, extends All mines
the Poor-Rate Acts to mines of every description, not men- rateable,
tioned in the statute of 43 Elizabeth c. 2, s.. 1, which
applied solely to coal mines.

Under s. 7 of the Act 1874, where a tiny lead, or copper Gross and
mine is occupied under lease granted without fine on a rateable
reservation wholly or partly of dues or rent, the gross value J"^^"^ ot the
of the mine shall be taken to be the annual amount of the copper '^
whole of the dues payable in respect thereof during the year mines,
ending on the 31st December preceding the date at which
the valuation list is made, in addition to the annual amount

T 3

418 THE POOR-IUTE.

of any fixed rent reserved for the same which may not be
paid or satisfied by such dues.

The rateable annual value of such mine shall be the same
as the gross value thereof, except that where the person
receiving the dues or rent is liable for repairs, insurance, or
other expenses necessary to maintain the mine in a state to
command the annual amount of dues or rent, the average
annual costs of the repairs, insurance, and other expenses
for which he is so liable shall be deducted from the gross
value, for the purpose of calculating the rateable value.

In the following cases, namely,

1. Where any such mine is occupied under a lease granted
wholly or partly on a fine ; and,

2. Where any such mine is occupied and worked by the
owner; and,

3. In the case of any other such mine which is not ex-
cepted from the provisions of this Act, and to which
the foregoing provisions of this section do not apply, —

the gross and rateable annual value of the mine shall be
taken to be the annual amount of the dues, or dues and
rent, at which the mine might be reasonably expected to be
let without fine, on a lease of the ordinary duration, accord-
ing to the usage of the country, if the tenant undertakes to
pay all tenant's rates and taxes, and tithe rent charge, and
also the repairs, insurance, and other expenses necessary to
maintain the mine in a state to command such annual
amount of dues, or dues and rent.
Who to be The purser, secretary, and chief managing agent for the
rated as time being of any tin, lead, or copper mine, may be rated as
of m£! the occupier.

The term " mine," when under lease, includes the under-
ground workings, engines, machinery, workshops, tramways
and other plant, buildings (not being dwelling-houses), and
works of the surface-land occupied in connection with and
for the purposes of the mine, and situate within the boun-
dary of the land comprised in the lease under which the
dues, or dues and rent, are payable or reserved (a) :

" Dues " mean royalty, or toll, either in money or partly
in money and partly in kind; and the amount means the
value thereof :

(«) Whether an excavation in E. 568 ; 4 L. J. M. C. 59 ;'i?. v.

the earth be a mine or not de- Brettle, 3 B. <fe Ad. 424 ; R. v.

pends on the mode of working Sedgley, 2 B. & Ad. fio ; R. y.

and not on the substance ob- Westbrook, 10 Q. B. 178.
tained : R. v. Ihms/o7'd, 2 A. «fe

Definitions.

THE POOR-RATE.

419

of a mine.

" Lease " means lease or sett, licence to work, agreement
for a lease or sett, or licence to work :

" Fine " means fine, premium, or foregift, or other payment
or consideration in the nature thereof.

Where any poor or other local rate which, at the com- Deductions
mencement of this Act any lessee, licensee, or grantee of a ^y tenant
mine is exempt from being rated to in respect of such mine,
becomes payable by him in respect of such mine during the
continuance of his lease, grant or licence, or before the arrival
of the period at which the amount of the rent, royalty, or
dues is liable to revision or readjustment, he may (unless he
has specially (a) contracted to pay such rate in the event of
the abolition of the said exemption) deduct from any rent,
royalty, or dues payable by him one half of any such rate
paid by him; but he shall not deduct any sum exceeding
what one half of the rate in the pound of such poor or other
local rate would amount to if calculated upon the rent,
royalty, or dues so payable by him; sec. 8, Act 1874 (b).

By sec. 13 nothing in the Act shall apply to a mine of Dues ic-
which the royalty or dues are for the time being wholly served in
reserved in kind, or to the owner or occupier thereof.

Prior to this Act it was not unusual for the lessors to
reserve to themselves part of the ore as the consideration or
toll in kind for the working the mine ; in such case they
were held to be rateable as occupiers of so much land : jft*.
V. Tremagne, 4 B. & Ad. 162 ; but they were not rateable if
the ore was smelted: R. v. Earl Pomfret, 5 M. k S. 179.
The distinction was pointed out by Le Blanc, J., in R. v.
The Baptist Mill Co., 1 M. & S. 612, " where a person receives
without risk part of the produce extracted from the bowels
of the earth, he is an occupier of the land ; but where he
merely receives a rent or money payment, he is not an
occupier." See R. v. The Bishop of Rochester, 12 East, 353.
In R. V. Todd, 12 A. & E. 816, the Duke of Cleveland had
reserved one-fifth part of the ore which should be gotten out

kind.

(a) A lease of an iron mine
provided for the payment of the
rent " free and clear of and from
all rates, &c., whatsoever, parlia-
mentary, parochial, or otherwise,
or of any nature." After the
passing the Rating Act, 1874, it
was held that this was not a
" specific " contract to pay the
poor-rate in the event of the
possible abolition of the exemp-

tion of the mine from rating :
77ie Dnke of Devonshire v. The
Barrow Ilcematite Steel Co., 2
Q. B. D. 286 ; 46 L. J. Q. B. 435,
C. A.

(J) By sec. 9 any payments
made under sec. 8 are a discharge
for so much rent ; and by sec. 10
the Act is applicable to local
rates.

420 ' ' THE POOR-RATE.

of the demised premises cleansed, dressed, and made merchant-
able and fit for the smelting-mill, at the cost of the lessees.
The Duke Mas held to be the occupier of the ore, and rate-
able. See also R. v. St. Austell, 5 B. & Aid. 693; Van Mining
Co. V. Llanidloes {Overseers), 45 L. J. M. C. 138; 1 Ex. D.
310.
TJnproduc- It was held in* R. v. Bedworth, 8 East, 387, that where a
tive mine, mine had ceased to be productive, the mine having become
exhausted, and the subject-matter of profit gone, the lessor
was only rateable for the annual value during the period for
which the rate was made ; and when the thing which was
occupied no longer afforded concurrent value, the subject-
matter of the rating was gone.

When R. v. Bedworth was cited in Staley v. Castleton
(Overseers), as reported in 33 L. J. M. C. 178, 180,
Blackburn, J,, remarked, "that case is not law at the present
time" (a) (which obiter dictum is not reported in (S. C),
5 B. & S. 505) ; and it was held that the owner of a cotton-
mill, which was not kept in work owing to depression of trade,
was still liable to be rated for the value not as for the mill,
but as for the building used as a warehouse for storing the
machinery therein : see Harter v. Saljm^dj 6 B. ife S. ; 34 L.
J. M. C. 206; Staunton v. Powell, Ir. R. 1 Com. L. 182;
7''he Attorney-General v. Earl Sefton, 32 Ex. 230, in which
last case (Martin, B., dissenting), it was held that land
not capable of being used for building, agricultural or other
present purposes, was not liable to succession-duty. So in
R. V. The Grand Junction Ry. Co., 4 Q. B. 18 ; 13 L. J. M.
C. 94, Lord Deuman pointed out that the rate was to be on
the occupier in respect of the beneficial nature of his occu-
pation, in ascertaining which all the existing circumstances,
whether peiinanent or otherwise, would reasonably influence
the negotiation for the tenancy at a rental.
The present And as Cockburn, C. J., in giving judgment in R. v.
value rate- £ietton, 30 L. J. M. C. 89—94, said : The true principle,
^ ^* according to which the value of the occupation to the hypo-

thetical tenant contemplated by the Parochial Assessment
Act is to be estimated, is, to assume the continuance of
those circumstances which constitute the value to the exist-
ing occupier, unless it be made to appear that those circum-
stances are about to undergo a change, or, in the language
of Byles, J., " the statute by adopting the supposed tenancy

(a) But while tlie unused mill house, the unworked mine would
might be available as a ware- be valueless.

THE POOR-RATE. 421

from year to year seems to exclude a valuation of distant
future advantages or disadvantages of the property demised,
and to regard its actual condition at the time of the rate, or,
at farthest, in the immediate future ; " see also Sunderland
Parish v. Sunderland Union, 34 L. J. M. C. 121, Erie, C. J.,
127.

These cases do not appear to conflict with E. v. Bedworth, ^' v. Bed-
but rather support the principle there laid down by Lord ^^^^*^^^^^ ^'^P'
Ellenborough. So in The Tyne Goal Co. v. WalUend, 46 L. "^^^ ^^ '
J. M. C. 185, where the coal mine had become unproductive
by being " drowned out," it was held that though the surface-
lands were rateable, the owner and occupiers of the coal mine
were not rateable for the buildings, engines, plant, &c., as those
were only adjuncts to and part of a valueless colliery, and
were not shown to have any independent value : Lord Cole-
ridge, C. J.

Where a mine is being worked, the court will not inquire Where
whether an unprofitable bargain has been made by the "^^"® ,
lessors, R. v. Parrott, 5 T. R. 593 ; so though the expendi- occupier
ture of docks exceeded the dues received, M. v. Hull Dock rateable.
Co., 5 M. & E. 394. The case did not state that the pro-
perty, conimunihus annis, was not productive of profit : ib.
Bayley, J. But these decisions seem barely consistent with
Clerk V. The Alderhury Union Committee, 50 L. J. M. C. 33,
where on an appeal against a poor-rate evidence w\a,s held
to be admissible, to show that the sums received and paid
for provisions, salaries, &c., in can-ying on the business of a
refreshment-room at a railway-station, was in fact carried on
at a loss : see ante, p. 387.

Where a coal mine lay under two parishes, A. and B., and Mine under
was so worked ; but the coal was brought to bank by one *^°. .
shaft in A. parish, the owner could not be rated in A. for ^
coal gotten in B. : M. v. FoleshiU, 4 A. & E. 593 ; 4 L. J.
M. C. 63. See siipra, pp. 391, 417.

Under the statute 43 Eliz. c. 2, s. 1, the occupier of Saleable
saleable underwoods was rateable to the poor-rate ; so much underwood.
of that section is repealed by sec. 14 of the Rating Act,
1874 ; and by sec. 3 of that Act the Poor Rate Acts are to
extend to land used for a plantation, or a wood, or for the
growth of saleable underwood, and not subject to any right
of common. By sec. 4, the gross and rateable value of
such land shall be estimated as follows : —

If the land is used only for a phmtation, or a wood, the
value shall be estimated as if the land, instead of being a
plantation or a wood, were let and occupied in its natural

422 THE POOR-RATE.

and unimproved state. See Eyton v. Wood, 45 J. P. 54 ;
43 L. T. 472.

If the land is used for the growth of saleable underwood,
the value shall be estimated as if the land were let for that
purpose ;

If the land be used both for a plantation or a wood, and
for the growth of saleable underwood, the value shall be
estimated either as if the land were used only for a planta-
tion, or a wood, or as if the land were used only for the
gi'owth of the saleable underwood growing tliereon, as the
assessment committee may determine.

And by sec. 5, where the rateable value of any land
used, as above mentioned, is increased by reason of the
same being estimated in accordance with the Act, the
occupying tenant may deduct from his rent any rate paid
by him in respect thereof.
Meaning of " Saleable underwood " means wood destined for sale j
•'saleable and is not confined to wood then in a fit state for sale :
woo?'' ^' ^- ^^^M^^ 1^ ^^st, 219. But whether the woods are
within the meaning of saleable underwoods under the
statute, is a question for the sessions to determine : R. v.
Narherth Nwth, 9 A. <fe E. 815 ; 8 L. J. M. C. 46.
Treatment The nature of the tree forming the wood or plantation is
of wood the immaterial ; the mode of treatment will determine whether
cntenon, |^ -g j-g^teable as saleable underwood ; and may be also deter-
mined by the custom of the country : see Lord Fitzhardinge v,
Pritchett, L. R. 2 Q. B. 135 ; 8 B. & S. 216 ; 36 L. J. M. C,
49 ; R. V. Narherth Noi^th (supra) ; R. v. Ferrybridge^ 9 A. & E.
815, Holroyd, J., said: — "The general subject of the rate
in the statute of Elizabeth is property yielding renewable
profits. Underwoods cut at stated periods do yield a suc-
cession of profits from time to time, though not annually.
This (a fir and larch plantation) is clearly not wood of that
description ; for when it is once cut, the root is destroyed,
and there is no succession of profits. In order to ascertain
whether these be saleable underwoods, the object for which
they were planted, and the mode of management, ought to
be taken into consideration."
Rateable In R. v. Narherth North, Coleridge, J., said ''he was not

in com- satisfied with the definition of saleable underwoods to be
mum us fQmi(j in i]^q cases. It was not so much the object for the
plantations, but the mode of treatment which he considered
to be the real question. If," he remarked, '• the underwoods
are in their nature renewable, and capable, under proper
management, of yielding a succession of profits at stated

THE POOR-RATE. 423

intervals of time, they are rateable. And they are rateable
in communibus annis, although the actual profit is only
made when the wood is cut down at intervals of years,
still the wood is constantly in a progressive state towards
the producing the profit, and annually improving in value j
the rates payable are on that improvement": per Lord
Ellenborough, in E. v. Mirjield (supra).

The average annual net profit of the particular description Farm
of land to be rated is the sum at which the rate should be lands,
assessed. The rate should be at the same sum as lands of a
similar quality in the same parish produce. Where there is
some particular expense attachable to one farm which is not
sustained by another, as where a farm is liable to be flooded,
and is protected by a rate in the nature of a sewers-rate,
thereby reducing the average net annual profit, the rate should
be made accordingly. So where the subject of the occupation
is of a perishable nature, or requires an annual expense to
secure its existence, an allowance ought to be made on this
account, for the total annual profit is not then the net annual
profit ; a part must be set aside for the restoration and main-
tenance of the subject of the occupation. It is on this
principle that buildings have been permitted to be rated at
less in proportion than arable or other land. The principle
of the decisions has established the rvile of rating to be, that
all lands are to be assessed in proportion to the net rent
which a tenant at rack rent would pay, he discharging all
rates, charges and outgoings; E. v. Adames, 4 B. & Ad. 61;
1 Nev. & M. 162 : see E. v. Mirjield, 10 East, 219.

Where machinery is attached to a building, the house Alachinerj
must be valued in respect to the increased value derived attached to
from such machinery : E. v. Birmingham Gaslight Co., 6 A. Duikungs.
& E. 634 ; 6 L. J. M. C. 92 ; E. v. Haslam, 17 Q. B. 220 ;
E. V. Guest, 7 A. & E. 956 ; E. v. Liverpool Exchange^ 1 A.
& E. 465 j E. V. So2ithampton Dock Co., 14 Q. B. 587 ; 20
L. J. M. C. 155 ; The Metropolitan Board of Works v. West
Ham, L. R. 6 Q. B. 193 ; 40 L. J. M. C. 20; 23 L. T. 490; see
also E. V. Gloucester, Cald. 262.

As to machinery in a ship-yard, see Laing v. Bis/iopwear-
mouth, 3 Q. B. D. 299 ; 47 L. J. M. C. 41 ; 27 L. T. 781 ;
26 W. R 351 : Tanks in a distillery, see Chidleys. West
Ham, 32 L. T. 486 : Pumps used for pumping out water
from an unproductive coal mine. The I'yne Coal Co. v.
Wallsend Overseers, 46 L. J. M. 0. 185 ; see also Halliwell v.
Hahiead, 21 J. P. 373.

Where from depression of trade the owners of a cotton

424

THE POOR-RATE.

Empty
premises.

Houses
recently
built but
unoccu-
pied.

The Union

Asst. Act,

1862;

ss. 14, 20,

25.

The Union
Asst. Act,
1868, s. 38

mill ceased work, bat employed a person to look after the
machinery and keep it in repair, the owner was held liable
to be rated as for a warehouse for the machinery, and not as
a " mill": Staley v. Castletoii, 33 L. J. M. C. 178 ; 10 Jur.
N. S. 1147 ; Barter v. Salford, 34 L. J. M. C. 206 ; 6 B. &
S. 591.

Every thing which is merely a chattel, and would not pass
under a demise from the actual or imaginary tenant, should
be excluded from consideration in assessing the rateable
value : see Cockburn, C. J., in R. v. Lee {Ink.), L. R. 1
Q. B. 241 ; 35 L. J. M. C. 105.

InBaHerv Salford, 34 L. J. M. C. 206-208, Crompton, J.,
is reported as saying, " that when premises are practically
unletable they are not rateable ; but if the owner does not
choose to let them, but holds out for a higher rent, that will
not prevent his being liable to be rated at what may be
found to be a fair rent." In that case, however, there was a
beneficial occupation — asm Ji., or Stale i/y. Castleton, 33 L. J.
M. C. 178 ; 5 B. & S. 505 ; and see Staunton v. Foivell, Ir.
R. 1 C. L. 182 — by the user of the premises or mill, as a ware-
house for the unemployed machinery.

In the subsequent case, Maldon v. Kingston Union, 38
L. J. M. C. 125 ; L. R. 4 Q. B. 326; S. C, R. v. Maldon,
L. R. 4 Q. B. 326, decided in the Union Assessment Act, 1862,
25 & 26 Vict. c. 103, by which a supplemental valuation
list is directed to be made whenever fresh property becomes
" rateable," as houses newly finished and ready for occupation.
It was there held that the word " rateable " referred to the
quality of the property and not to the occupation ; and
whether the premises were occupied or not could make no
diff"erence. R. v. Hammersmith, 33 L. T. 183, was con-
sidered a binding authority on the point, where it was decided
that unoccupied houses were rateable to' the county rate,
under 15 & 16 Vict. c. 81, ss. 2^ 6, the words creating the
liability being hereditaments " rateable to the 2>oor"

Under the enactment in the Union Assessment Act, 1868,
s. 38 — Where a person occupies any new house or other
building which was incomplete, or not fit for occupation, or
not entered in the valuation list at the time when the
current rate for the time being was made, the overseers may
enter such house or building with the name of the occu-
pier, and the date of the entry in the rate-book, and re-
quire him to pay such amount as in their judgment shall
be proper, having regard to the rateable value of the
house, <fcc., and the time which may have elapsed from

THE POOR-tlATE. 425

the tnaking the current rate to the date of such entry,
and the person so charged will be considered as actually
rated from such date, and be liable to pay the sum assessed
in like manner, and subject to the like penalties of distress,
and with the like power of appeal, as if he had been assessed
when the rate w^as made.

The 12th s. of 17 Geo. 2, c. 38, now repealed by 32 & Incoming
33 Vict. c. 41, s. 16, made the tenant ^oing out of a rated '^^"5^ °^^'
house, and the one coming in, liable to pay rates m proper- t^nantSk
tion of their respective occupations ; but the outgoing tenant
remained liable to the payment of the current rate during
the time the house remained unoccupied : Edwards v.
Ruslwlme, 38 L. J. M. C. 153; 10 B. & S. 526; L. R. 4
Q. B. 554.

By s. 16 of 32 & 33 Vict. c. 41, it was enacted, if the The Poor-
occupier assessed to the rate cease to occupy before the rate i'^^ij ^^ '
be wholly discharged, or the hereditaments being unoccupied ^^^t, 1869
at the date of the rate become occupied pending the rate, s. 16.
the overseer is to enter his name as occupier in Ihe rate-
book, with the date of his occupation, and from thenceforth
he will be liable to pay so much of the rate as propor-
tionate to the time between the commencement of his
occupation and the expiration of the period for which the
rate was made, " in like manner and with the like remedy
of appeal as if he had been rated when the rate w^as made."
And the outgoing occupier will remain liable for so much of
the rate proportionate to the time of his occupation within
the period for which the rate was made. The relief under
this section applies only where there is an incoming occupier,
and not where the premises are left unoccupied : 21ie Over-
seers of St. Werburgh, Derby v. Hutchinson, 49 L. J. M. C.
23 ; 5 Ex. D. 14, and to relieve the outgoing, the incoming
occupier must have been one liable to the payment of rates,
and not a public institution exempt from rates: Hare v. The
Futney Overseers, 50 L. J. M. C. 81.

In consequence of the above cases — The Overseers of St. The Poor-
Werhurgh, Derby v. Hutchinson, and Hare v. 2%e Futney l^a^e Asst.
Overseers — The Poor-Rate Assessment and Collection Act, ^^^ ^882
1869, Amendment Act, 1882 (45 & 46 Vict. c. 20) was '
passed, and is to be read as one Act with that of 1869. The
enactment overrules those cases.

* Sec. 3 enacts that the provisions of the 16th sec. of
the Act of 1869, so far as the payment of rates by an out'
going occupier, shall extend and apply to any outgoing
occupier assessed in the rate, and such outgoing occupier

426 RATING SMALL TENEMENTS.

shall only be liable to pay so much of the rate as shall be
proportionate to the time of his occupation within the period
for which the rate was made, notwithstanding he may not
be succeeded in his occupation by an incoming tenant. See
Paterson's "Practical Statutes of 1882," note, p. 38.

Bating Small Tenements,

Sturges The substratum of rateability from the time of Queen

Bourne's Elizabeth has almost universally been occupation. It has
Act (1819). only been in modern times that the Legislature — seeing that
large quantities of small houses are occupied by persons of
no great means, who are likely to change rapidly, as well as
to occupy portions of houses only, and upon whom the rates
are to some extent uncertain — has empowered the rating
authorities, if they choose, to rate the owner instead of the
occupier. And as by the preamble to Sturges Bourne's Act
(1819), 59 Geo. 3, c. 12, we learn the object of that Act to
be "to prevent the poor-rate from being evaded by letting
out houses in lodgings or separate apartments, or for short
terms, or to tenants who quit their residences, or become
insolvent before the rates could be collected. And it had
been found that in many instances the landlords had actually
been receiving a higher rent from the tenant on the ground
and expectation that the occupier could not be effectually
assessed to the poor-rate, and did thus obtain an undue
advantage to themselves, and by means of the premises the
other inhabitants were unjustly compelled to pay much more
than their fair and due proportions of their charges of
relieving and maintaining the poor " : —
Owners to -^y ^^® \^t^ section of that statute (1819) the vestry may
be rated, resolve and direct that the owner or owners of all houses,
apartments, or dwellings in the parish, being the immediate
lessor or lessors of the actual occupier or occupiers, which
shall respectively be let to the occupiers thereof at a rent or
rate not exceeding .£20 or less than £6 by the year, for any
less term than one year, or on any agreement by which the
rent shall be reserved, or made payable at any shorter period
than three months, shall be assessed to the rates for the
relief of the poor, in respect of such houses, &c., instead of
the actual occupiers. The churchwardens and overseers are
required to carry into effect such resolution, and to assess at
a fair and equal pound rate such owner or owners in respect
of such houses, <fcc., according to the actual rent at which

RATING SMALL TENEMENTS. 427

eveiy such house, &g., shall be let, after making a reasonable
deduction from such rent, not exceeding in any case one-half
of the same (a).

By sec. 21 in certain cases the person receiving the rent
may be rated as the owner ; as where the rent is received for
a corporation, or the landlord is a minor or under disabilities.

Nothing in the Parochial Assessments Act, 6 & 7 Will. 4, c.
96, Act 1836 (see sec. 4) or the Union Assessment Committee
Act, 1862 (see sec. 35), are to be construed to prevent the
ownei-s of tenements from compounding for the rates.

Under sec. 4 (Act 1836, supra) the gross estimated rental Estimated
of the hereditaments compounded for arc to be entered on rental and
the rate in the proper column. And the proper valuation is J^ ^^^^^
to appear in the valuation list like other rateable property ; ligt,
it is on the i-ate the deduction is to be made, and not the
primaiy valuation : see The Sunderland Overseeis v. llie
Sunderland Union, 18 C. B. N. S. 532.

The section 19 (Act 1819, supra) has no application to
houses let at a rent exceeding £20 or less than £6 a year :
lies V. West Ham Union Committee, 51 L. J. Q. B. 17, C. A.

Section 19 (Act 1819, supra), and similar provisions, may
be considered as repealed as respects parishes within a
parliamentary borough by 30 & 31 Vict. c. 102, s. 7.

By the Poor-Rate Assessment and Collection Act, 1869, Power to
32 & 33 Vict. c. 41, s. 3, the owners of hereditaments may compound
agree to pay the rates where the rateable value does not ^^ ^*
exceed twenty pounds in the metropolis ; or thirteen pounds
where the parish is situate wholly or partly within the borough
of Liverpool ; or ten pounds as to Manchester or Birmingham;
or eight pounds if situate elsewhere, and be allowed a com-
mission of tw^enty-five per cent.

By sec. 4 the vestry of any parish may from time to time
order that the ownei'S of all rateable hereditaments to
which sec. 3 {supra) extends, situate within such parish,
shall be rated to the poor-rate in respect thereof instead of
the occupier on all rates after the date of such order ; and
thereupon and so long as such order shall be in force, the
following enactments shall have eifect : —

1. The overseers shall rate the owners instead of the occu- Allowance

piers, and allow them a deduction of 15 per centum from the *° o^^ners
^ , * on rate.

ratCt

(rt) Although the owner is to occupier may be seized : sec. 20
pay the rates, the goods of the (Act 1819).

428 TfiE POOft-RATEL

2. If the owner of one or more such rateable hereditaments
shall give notice to the overseers in writing that he is willing
to be rated for any term not being less than one year in
respect thereof, whether the same be occupied or not, the
overseers shall rate such owner accordingly, and allow to
him a further deduction not exceeding 15 per centum
from the rate, ^qq Bennett v. Atkins, 4 C. P. D. 80; 48 L. J.
C. P. 95 ; 40 L. T. QQ.

3. The vestry may rescind the resolution.

This section is only applicable to a rateable hereditament
in which a dwelling-house is included.

Where In some parishes the vestries have taken advantage of this

owner 4^]^ ^qq^ ^q reduce the rating of houses below the actual rent

vires paid, so as to make the rateable value appear on the list

below the statutable annual rateable value, but on w^hich

the vestry make the order that the owner be rated instead of

the occupier.

Remedy by In such case the remedy of the owner is by appeal to the

appeal. sessions against the rate when made ; but, the valuation list

being untrue in the statement of the annual value the owner

should make his objection, in the first instance, to the

Assessment Committee.

The Repre- By sec. 7 (a), 30 & 31 Vict. c. 102, "The Representation

Peo^le^"^^^ of People Act, 1867," it is provided that, in boroughs where

Act 1867. *^^ dwelling-house or tenement is let wholly in apartments

or lodgings not separately rated, the owner shall be rated to

the poor-rate ; so where a house was let out in separate

rooms to tenants using the street door, &c., in common, the

owner occupying no part of the building, he was held to be

Stamper v. rateable instead of the occupiers : Stamper v. Sundeydand-on-

lanTZ ^^^' ^^ ^ '^' ^^- ^- ^^'^ ; L. K. 3 C. P. 388. Where "sets of
Sea 37' I'o^ois " or " flats " are occupied in the Victoria Mansions,
L. J, M. C. Westminster, are held to be properly, if separately, rated ;
137, L. R. R, V. St. Gem-ge's Union {Committee), 41 L. J. M. C. 30 ;
3C.P.388. L. R. 7 Q. B. 90; 25 L. T. 696; 20 W. R. 179.

By the same Act, sec. 7, where a dwelling-house or tene-
ment shall be wholly let out in apartments or lodgings not
separately rented, the owner shall be rated in respect thereof
to the poor-rate {h).
Full value By sub-sec. 2 to sec. 7, the full rateable value of every

(<7) See Circular of the Poor compositions existing at the pass-
Law Board, 15 Nov., 1867. ing the Act.
(V) This section is not to affect

THE ASSESSMENT ACTS AND APPEAL. 429

dwelling-honse or other separate tenement, and the full rate of house,
in the pound payable by the occupier, and the name of the &c., to be
occupier, shall be entered in the rate-book. rate-'book?

If the correct amount of the assessment include the frac-
Hon of a farthing, and it be made up to even money, this in^'amount
may be a subject of appeal, but no action on a distress will cliarged for
lie : Bavin v. Hutchinson, 31 L. J. M. C. 229. rate.

Every person rated as the owner of any house, apartment. Appeal
or dwelling-house, thinking himself aggrieved by any rate, against a
will have the like remedy by appeal against the same as ^ate^to
any other person thereby rated. He will also have the right o^y^er^^s/
of voting in vestry. Sec. 22 Sturges Bourne's Act, 59 Geo. 3, (jgo. 3,
c. 12. c. 12.

' And under 32 & 33 Vict. c. 41, s. 13, every owner of Appeal
every hereditament for the rates of which he has become against
liable has the like right of appeal against the valuation lists valuation
and poor-rates as if he were the occupier thereof. See (7?'oss ^.^^^g 32 ^
V. Alsop, L. R. 6 C. P. 315 ; 40 L. J. C. P. 5. 33 Vict.

By the Poor-Rate and Assessment Act, 1882, 45 & 46 c. 41.
Vict. c. 27, s. 4, the authority to make orders on the owners Applica-
of small tenements under the above Acts is extended to the t\on to
highway-rates; and sec. 30 of the Highway Act, 1835, is j^^t^J^'Yct
repealed. I882'.

The Assessment Acts and Appeal.

It was considered expedient, in 1862, that more effectual The IJEion
provision should be made for securing the uniform and Assessment
correct valuation of parishes in the Unions of England, and, ^^^ ^862
to effect that object, there was then passed "The Union i864,188o!
Assessment Committee Act, 1862," 25 & 26 Vict. c. 103;
see also the Amending Act of 1864, 27 & 28 Vict. c. 39, and
Act of 1880, 43 & 44 Vict. c. 7.

In 1869, " The Valuation (Metropolis) Act," 32 & 33 Vict,
c. 67, was passed, " to provide a common basis of value for
the purposes of government and local taxation, and to pro-
mote uniformity of assessment of rateable property in the
metropolis."

The Assessment Act, 1862, is, in the Metropolis Act, Act 1862,
1869, styled "The Principal Act," but the clauses which the PHnci-
have, in particular, reference to the preparations of the P^^ ^^^
valuation list, and the appeals against the list are, as to
the metropolis, repealed, and new provisions are made in
that Act, which is fully treated on with the Amending Act
of 1875, infra, tit. <• The Valuation Metropolis Act, 1869."

430

THE POOR-RATE.

Nomina-
tion of the
assessment
committee.

In a
borough.

Its autho-
rity.

The valua-
tion list.

Gross
rental.

All rate-
able pro-
perty to be
inserted in
the list.

Deposit
and notice
of list (6).

Both in and out of the metropolis an " Assessment Com-
mittee of the Union," for the investigation and supervision
of the valuations to be made within such union, is elected
annually, at the first meeting after the election of the
guardians, from among themselves. Such committee to con-
sist of not less than six or more than twelve members, one-
third of whom are to be ex officio guardians, if so many
qualified: Act 1862, s. 2.

Where a union has the same bounds as a borough, the
names of the assessment committee are to be transmitted to
the town council, who may appoint from their own body the
same number of members to the committee as the guardians
had nominated : Act 1862, s. 3.

The authority of the committee appointed for the union
extends over every parish in the union : Act 1862, s. 7.

The overseers of each parish, within three months after
the appointment of the committee, will make a list of all the
rateable hereditaments in the parish, with the annual value
thereof, and have power to revise such valuation ; and such
list, when signed by them, will be styled " Tlie Valuation
List:" Act 1862, s. 14(a). Churchwardens are included
in "overseers : " Morgan v. Farry, 17 C. B. N. S. 334.

For the definition of the gross estimated rental see tit,
" Poor-Rate," su^yra, p. 384, Act 1862, s. 15 ; and tit. " The
Valuation (Metropolis) Act, 1869," s. 4, post, p. 444.

All rateable property is to be inserted in the valuation
list, with the true rateable value independently of the pro-
visions of the Small Tenements Act. See Sunderland-on-
the-Sea v. Sunderland Union, 34 L. J. M. C. 121 ; 18 C. B.
N. S. 531 ; 13 L. T. 239 ; R. v. The Foundling Hospital,
L. R. 7 Q. B. 83; 41 L. J. M. C. 41 ; 25 L. T. 562.

The valuation list, made and signed by the overseers, is
to be deposited by them in the place where the parish books
are kept, and a copy delivered to the board of guardians (c).
The overseers are also required to give public notice of the
deposit of the list on the Sunday next following such deposit,
in the same manner as in the case of the publication of a
poor-rate after the justices' allowance; that is, on or near
the church doors of all the churches and chapels within the
parish to which the list is applicable, previously to the com-
mencement of divine service. See 17 Geo. 2, c. 3, s. 1 ;

(a) This section does not apply
to the metropolis.

(&) This section does not apply

to the metropolis.

(c) The guardians as a body,
and not the committee.

THE ASSESSMENT ACTS AND APPEAL. 431

1 Vict. c. 45, s. 2 ; Ormerod v. Chaduich, 16 M. & W. 367.
Fourteen days after such notice the hsts are to be trans-
mitted to the assessment committee : Act 1862, s. 17.

Within fourteen days after the transmission of the list (or Notice to
of any supplemental list) to the committee notice thereof is P^iWic
to be given to every railway, canal, telegraph, gas and water ^o^^P^'^i^^
company named in such list as the occupier of property in- ^f ^he list
eluded in it, and not having a place of business in the parish or a supple-
to which the list relates, and of the sums set down as the ii^ental list,
rateable value of such company's property in the list. See
27 & 28 Vict. c. 39, s. 5 (The Amending Act, 1864.)

All persons assessed or liable to be assessed to the relief Inspection
of the poor of the parish, and any overseer and ratepayer, ^^ ^^^^^'
may inspect and demand copies and extracts from the list so
deposited or transmitted as above mentioned: Act 1862,
sec. 17. And so may land-tax commissioners, surveyors,
and assessors inspect the valuation lists: 43 & 44 Vict. c. 19,
s. 39.

Any overseer or overseers in the union who, thinking his Objections
parish aggrieved by the valuation list of any parish in the ^ ^ist by
union, or any person who may feel aggrieved by any valu- ^^^^^^^^^s
ation list on the ground of unfairness or incorrectness in person,
any valuation included therein, or on the ground of the
omission of any rateable hereditaments from such list, may,
at any time after the deposit (sec. 17) of such list, and before
the expiration of twenty-eight days after the notice of the
deposit as aforesaid, give to the committee and to the over-
seers (a) a notice in writing of his objection, specifying the
grounds thereof; and where the ground of any objection
shall be unfairness or incorrectness in the valuation of any
hereditaments in respect of which any person, other than
the person objecting, is liable to be rated, or the omission of
such hereditaments, also give notice in writing of such
objection, and of the ground thereof, to such other person (6) :
Act 1862, s. 18.

The committee will hold meetings as may be required to Committee
hear objections to the lists, giving at least (c) twenty-eight to meet and
days' notice of the holding thereof to the overseers of the ^^^^. ^^'

jections.

(a) This notice will be given 41 Geo. 3, c. 23, s. 6 ; fi & 7 Will. 4,
to the overseers of the parish the c. 96, statutes applicable to poor-
assessment of which is objected rate appeals and which are ana-
to. As to the service of the logons,
notice, see sec. 42. (c) See B. v Salop, 8 A. & E,

(J)) See 17 Geo. 2, c. 38, s. 4 ; 173, meaning, clear days.

432 THE POOR-EATE.

parishes to which the list relates ; and such overseers are to

publish the same on the Sunday next after they may receive

the notice in the same manner as they would publish a rate

allowed by justices (a). The committee will meet accordingly

and hear and determine any objections to the lists brought

before them (with power of adjournment), and may direct

notice of any such objections (6) to be given by the overseers,

or by the persons objecting to third parties before the further

hearing thereof ; and the committee will have no power to

hear any objections to the lists unless the required notices

have been given. But the a})sence of such notices and

objections thereto may be waived, and then the committee

may act as though the notices had been duly given : Act

1862, s. 19 ; see 2^ost, s. 1, Act 1864, p. 439, under which

the committee are bound to hear all objections.

Valuation The committee, having heard the objections before them,

list may be jx^ay make such alterations in the valuation of hereditaments

corrected • ^j^^ lists, and insert therein any rateable hereditament

bv com* •

mittee omitted therefrom, and make such corrections in the names,

descriptions and particulars in the list, upon such information

as may to them seem sufficient ; and, with the consent of

the guardians, may employ a person to survey and value (c)

the hereditaments comprised in the list, or any of them, or

omitted therefrom, and may take such other means as may

be considered necessary for ascertaining the correctness

thereof (d). And having heard all objections, and made

such alterations, insertions and corrections as may seem

proper, the committee are to approve the list under the hands

of those members thereof present at the meeting at which

the same is approved, with the date of such approval : Act

1862, s. 20(e).

New Newly-erected houses, although not occupied, are rateable

kouses. hereditaments, and should be inserted in the valuation list :

Act 1862, ss. 14, 20, 25; Maldonx. Kingston, 38 L. J. M. C.

(tf) As to the signature of the Vict. c. 39, s. 4. must show all the

notice, see Burnley v, Nethei'lcy, particulars of the hereditaments

28 L. J. M. C. 152. comprised in his valuations, and

(V) See B.Y. Eyre B.ndi other the amounts at which the same are

cases, tit. " Appeal." valued, and the list be deposited

(c) See 27 & 28 Vict. c. 39, s. for inspection : see R. v. Craihe,

4 ; -R. V. Cohhe, 13 L. T. 802 ; all 13 L. T. 802 ; as to the sufficiency

particulars must be shown by the of the form, see Itaivlence v.

valuer : see Rawlence\. Hursley, Ilursley, 47 L. J. M. C. 31.
,47 L. J. M. C. 31. (e) This section does not apply

(^Z) The valuer, under the to the metropolis.
Amending Act, 1864, 27 & 28

THE ASSESSMENT ACTS AND APPEAL. 433

125 ; S. C, R. V. Maldoii, L. R. 4 Q. B. 326 ; 10 B. & S.
323 ; ante, p. 424.

The term " hereditament " in its ordinary sense includes Hercdita-,
lands, tenements, and whatever immovable things a person ^^ent.
may leave to himself and his heirs by way of inheritance ;
and which if not otherwise bequeathed would go to the heir,
and not to the executor as a chattel. The Metropolis
Valuation Act, 1869, defines it to mean, "any lands, tene-
ments and hereditaments which are liable to any rate or tax
in respect to which the valuation list is by the Act made
conclusive": Act 1869, s. 4.

AVhen the committee make any alteration in the valuation Deposit

of any hereditaments included in, or insert any rateable o^ ^^^ .

hereditament omitted from a valuation list, the list is to be ^'^^|^^^^'^^"
1 .,1 T , 1 • -, -r , \ xr • • 1 hots when

deposited as directed m sec. 17 {ante). iSotice is to be altered

given of not less than seven days nor more than fourteen and notice

from the re-deposit for the heai-ing of any objections to the ^or ob-

list so altered ; and when the committee have heard and J^c*^^'^^*

determined any such objections, or have made such further

alterations, insertions, and corrections therein, they will

approve the same as under sec. 20 : Act 1862, s. 21.

The requirement as to the notices, &c., under sec. 21 are
to be performed by the overseers, see The GJtorltoii Assess-
ment Committee v. The Chorlton Overseers, 12 L. T. 581 ; E.
V. Chorlton-on-3fecUoc/c (S. C), 35 L. J. M. C. 56.

From the words of this (21st) section, that the committee Further
may deal with "further" alterations, &c., in the list, it objections,
would seem they may make any new alterations, &c., and
hear an}' new objections to the general list. As to notices
to be given wdiere alterations are to be made, see sec. 19
(ante).

Where any alterations are made in the list under sec. 21, Re-deposit,
the list should be re-deposited ; see JR. v. Cho7-lton, 42 L. J.
^L C. 34. The re-deposit of the list is not required where
an alteration has been made by the committee on an appeal
to them after the approval of the list : B. v. Edmunds, L. R.
9 Q. B. 598 ; 43 L. J. M. C. 156 ; 31 L. T. 237.

The valuation list when approved by the committee will The valna-
be in the custody of the overseers, to be produced before the V^'^ ^^^^ ",^
justices on the allowance of rates, and at the special and quar- its alstodv,
ter sessions on any appeal, and at such times as the committee
may direct : Act 1862, sec. 23. And every such valuation
list approved by the committee and delivered to the over-
seers of the parish to which it relates, together with every
supplemental list approved and deposited in like manner,

434

THE POOR-RATE.

The sup-
plemental
list.

will be the valuation list of the parish until a new list is
made in substitution (a) : Act 1862, s. 24 (6).

When and so often as any property not included in a
valuation list in the parish becomes rateable, or there is an
alteration in the occupation of property rated, or where
property rated has become increased or decreased in value,
supplemental valuation lists are to be made showing the
annual rateable value of such property according to the
judgment of the overseers : Act 1862, ss. 25, 26.

As to the insertion in the list of new houses which were
incomplete at the time of the making the list (c), see 31 & 32
Vict. c. 122, sec. 38 ; Maldon v. Kingstoii, S. C. E. v. Maldon
{sujyra) ; R. v. Hammersmith, 33 L. T. 183. As to empty
houses, see Staley v. Castleton, 33 L. J. M. C. 178 ; 5 B. &. S.
505 ; Staunton v. Powell, Ir. R. 1 C. L. 182. See also, infra,
p. 424.

All provisions in relation to the signature (ss. 14 — 16);
*Ilementar ^^P^^^^* (^<^C- 1^) ^ objections (ss. 18, 19); approval (ss. 20,
pern '1\); or otherwise (ss. 23, 24, 28, 32, and 39), concerning

the valuation list will be applicable to every new or supple-
mental list: Act 1862, sec. 27 (c?).

If the overseer or overseers of any parish in any union,
having failed to obtain relief from the assessment committee

Objection?

list.

Appeal to
quarter

^^TnHTthe (^^* 1864, sec. \,post, p. 439), and having reason to think that

valuation such parish is aggrieved by the valuation list (which would

list (but not include also any supplemental list) of any parish within such

applicable union, whether it be on the ground that the rateable here-

**? ^ ^^ ditaments comprised therein are valued at sums beyond

polis) ^^^^ rateable value thereof, or on the ground that the rateable

hereditaments comprised in the valuation list of some other

parish in such union are valued at sums less than the annual

rateable value thereof (<?}, it will be lawful for such overseer

(«) A parish under a local Act
is excepted.

(J) This section will not apply
to the metropolis.

(6") As to the saving exceptions
and special rules of ranting under
Local Acts, see sec. 36 Act 1862.
As to includiijg unions under
CJilbert's Act, see sec. 45. ih. ; and
as to Local Acts, see H. v, Kimt
J.L, 9 B. & C. 283 ; 11. v. ,SY:
James', Westmhuter. 1 A. & E.
241 ; R. V. Nortvich, 3 D. k R.
32.

(</) A copy of the lists in force

is to be deposited in the Board
room, and kept in the custody of
the Clerk to the Guardians for
inspection : Act 1862, sec. 31.
Sections 27 k 31 do not apply to
the metropolis.

(<") This appeal seems to have
been framed on the appeal clause
in 1.5 & 16 Vict. c. 81, s. 22. But
here the appeal is limited to two
grounds only. The 15 & 16 Vict.
c. 81, provides other grounds of
appeal against the assessment of
the county rate ; a?i,te, p. 210.

THE ASSESSMENT ACTS AND APPEAL. 435

or overseers, with the consent of the vestry [see P. H. A.
1875, s. 144, a. p. 313], summoned for the purpose of con-
sidering the expediency of giving such consent, to appeal to
the quarter sessions for the county or borough in which
the greatest number of parishes belonging to the union is
situate, or in case the number in any two or more jurisdictions
is equal, to the quarter sessions having jurisdiction over the
parish in which the workhouse of the union is situate at
the sessions to be holden after the expiration of a month
after the" allowance (a) of a deposit (a) of such valuation
list, against such valuation list of the parish which shall
appear to be over or under-valued, and if in any case
any such overseer or overseers appeal against the valuation
list of any other parish on the ground that the rateable
hereditaments in such list are valued at less than the
annual rateable value thereof, they shall give fourteen clear
days' notice in w^riting, previous to the first day of the
quarter sessions at which the appeal is to be made, of
the intention to appeal, and the grounds thereof to the
overseers of the poor of such parish, and to the guardians of
the union comprising such parish [see Union Asst. Act, 1864,
s. 1, p. 439] ; and if such appeal be on the ground that the
rateable hereditaments in such list are valued beyond the
annual rateable value thereof, such overseer or overseers shall
give fourteen days' notice in writing previous to the quarter
sessions at w^hich the appeal is to be njade to the guardians of
the union in w^hich such parish is situate [b). The court, on
hearing the appeal, may either confirm the valuation list or
correct ''such irregularities" (sic oric/.) or inaccuracies as
may be proved to exist therein, and as may to them seem
f.dr and just. But no such list shall upon such appeal be
questioned or destroyed in regard to any other parish, unless
the court deem it necessary to proceed to the making an
entirely new valuation list : Act 1862, s. 32.

(a) The rate is ** allowed " by doubt, be read as meaning the

the justices; but the valuation "approval "of the committee to

list is " approved " by the com- the list.

mittee : see sees. 20 & 21. (&) Under the first class of

"Allowance" is here evidently appeal the rating of an individual

inserted instead of "approved." parish may be objected to ; under

As to the time for the " deposit " the second, the rating of the

of the list, see sec. 17. From the parish in itself, and irrespective

language of sec. 21 the committee of any other parish, may be oh-

may make alterations in the jected to as being, in general.,

deposited list and amend it, when assessed too highly, and hence

it will be re-deposited as under the distinction in the notices,
sec. 17. "Allowance " would, no

TJ 2

430

THE POOR-RATE.

The hear-
ing the
api>eal on
the valua-
tion list.

Kate only
to be made
in accord-
ance with
valuation
list.

Act 1862,
8. 28.

rrovision
■where
alteration
in occupa-
tion of pro-
perty.

Importance
of sec. 28,
Act 1862.

By sec. 33 (a) the sessions may adjouni the appeal and
order a new survey or valuation of any of the parishes in
respect of the appeal to be made, and may appoint a proper
person for that purpose, and the result of the survey and
valuation are to be returned to some subsequent sessions.

In every parish where the valuation list has been approved
and delivered to the overseers (see sec. 24) no rate (6) for the
relief of the poor, or other rate which by law is required to
be based upon the poor-rate, shall be of force, unless the
hereditaments included in such rate (except where the rate
is made under a local Act, see sec. 29), be rated according to
the annual rateable value thereof appearing in the valuation
list in force in such parish, and the overseers shall, before the
rate be allowed by the justices, sign a declaration according
to the form set forth in the schedule (c) (that they l)ave
examined and compared the several particulars in the
respective columns in the rate with the valuation list in
force in the parish, and that the hereditaments are rated in
accordance with the value appearing in such list). And it is
provided that where by reason of any alteration in the occu-
j)ation of any property included in the valuation list such
property has become liable to be rated in parts not men-
tioned in such list as rateable hereditaments and separately
rated therein, such parts may, where a supplemental valua-
tion list showing the annual rateable value of such parts has
not been approved and delivered as required (see sec. 26),
and whether such list has or has not been made be rated
according to such amounts as shall be fair apportioned parts
of the annual value appearing in such valuation list {d) in
force of the hereditaments out of which such parts have
been constituted : Act lc''62, sec. 28.

Section 28th shows at once the importance to be attached
to the valuation list and its preparation, on the authority of
which the rate will be wholly based. It will be noticed that
the overseer (<?) is to make a declaration that he has compared
the rate with the valuation list, and that the rate has been

(tf.) Repealed as to the metro-
polis.

(Jji) For form of rate, see
Glen's Poor Law Ordere, 604.

(c^ The first part of the section
is repealed as to the metropolis :
32 & 33 Vict. c. 67, s. 77, and
sch. 5.

(d) This gives the overseers

power, where the occupation has
become divided, to I'ate the several
occvTpiei-s in divisible pioportions,
but without any alteration of the
total rateable value.

(O Under 43 Eliz. c. 2, it is
necessary the actual majority of
the overseers aiid churchwardens
should sio^u the rate. But under

THE ASSESSMENT ACTS AND APPEAL^ 437

made according to the values appearing in the vahiation list,
but no provision is made for the correction of any inac-
curacies or omissions as made for the metropolis in the
71st and 72nd sees, of the Valuation (Metropolis) Act, 1869.
Sec. 43 of the Act, 1862, seems still further to point to the
conclusive authority of the valuation list as " delivered,"
enacting that, " after the valuation list has been approved
and delivered, every such rate («) (that is, every rate made
after the Act came into force) shall show the annual rateable
value of each hereditament comprised therein according to
the valuation list in force in the parish." It would appear
that the Legislature of 1862 did not intend that the overseers
should have power to make any alteration whatever in the
valuation list, as such a provision, inserted in the original Bill,
was not retained in the Act. It would have been preferable
had there been some ready mode to amend individual inaccu-
racies, as was subsequently enacted as regards the rating in
the metropolis, see (infra)^ The Valuation Metropolis Act,
1869, sec. 71.

The sections 28 and 43, and so also sec. 30, however, apply
only to the statement as to the rateable value ; a change in
the occupier's name will not atfect the validity of the rate ;
it would only, in such case, be necessary to identify the
property with that in the valuation list (a).

The 43 Eliz. c. 2, which, as before stated, authorised In what
the levying of a poor rate, provided by sec. 6 that, if any cases an
persons should find themselves atjo-rieved with any cess or ^PP®^^
tax, or other act done by the churchwardens or other persons, J^^j. ^.^te
or by the justices allowing the rate, to appeal generally to under 43
the general quarter session, and the justices there were Eliz. c. 2.
empowered to make such order thereon as to them should
be thought convenient ; and their decision would include
and bind all parties.

17 Geo. 2, c. 38, s. 4, extended the statute of Elizabeth, And as ex-
giving the right of appeal to any person who might find tended by
himself aggrieved by any rate or assessment made for the og^^' '
relief of the poor ; or should have any material objection to

Baker v. Loch, 34 L. J. M. C. Y-ate with the valuation list (see

49 ; 18 C. B. 52, it would seem the schedule) the churchwardens

an assistant overseer appointed and overseers should now them-

under 59 Geo 3, c. 12, might selves sign the rate,

sign as one of the overseei-s. («) Except when the rate is

Since 25 & 26 Vict, c, 103, seeing made under any local Act : sec.^29,

that they have to make a declara- Act 1862.
tiou that they have compared the

438

THE rOOK-RATE.

When ob-
ject of
rate legal,
ex facie.

Where rate
a nullity.

Si^cial
sessions.

The deci-
sion of
special
sessions
binding
unless ap-
i;ea!ed
against to
quarter
sessions.

any person or persons being on or left out of such rate or
assessment ; or to the sum charged on anv person or persons
therein. Tliis section provides for a " reasonable notice "
being given, and for the heariug the appeal.

An appeal cannot be made for merely trying if the rate
has been made bond fide for the purposes for which it is
professed to be made : K. v. Middlesex, 8 Dowl. 103. If the
object of the rate be legal on the face of it, it cannot be
quashed; it must be disputed on the overseer's accounts:
k. V. Gloucester {Mayor), 5 T. R. 346. The statute does not
make this a ground of appeal.

Where a rate is a nullity, or the person charged is not
rateable, it is safer for him to appeal to the sessions for relief
than rely on his action of trespass or replevin. It may be
that something is payable for the rate, and then the only
action would be for excessive distress : see Milward v. Caffin,
2 151a. Rep. 1336 ; Durant v. Boi/s, 6 T. R. 580 j 1 A. & E. 264.

Under the Parochial Assessment Act, 1836, 6&7 Will. 4,
c. 96, s. 6, the justices are directed to hold special sessions
four times in the year for hearing appeals against the rates
of the several parishes within their respective divisions (a),
of the holding which public notice is to be duly given (h) ;
and at such sessions (or adjournments thereof) the justices
will hear and determine objections to such rates on the
ground of inequality, unfairness, or incorrectness in the
valuation of auy hereditaments included therein. And their
decision will be binding, unless the person impugning it
within fourteen days gives notice in writing of his intention
of appealing against it, and of the matter or cause of such
appeal, to the person or persons in whose favour such decision
shall have been made ; and enters into his recognizance, with
securities, within /i'g days to try the appeal at the next general
quarter sessions which shall first happen, and to abide the
judgment of the Court.

By the same section, it is provided that before the special
sessions no such objection shall be inquired into unless notice
of the objection in writing, under the hand of the com-
plainant {c), be given seven days at the least before the day ap-
pointed for such special sessions, to the collector, overseers,
or other persons by whom such rate was made : and under

(rt) Borough justices may hold
these special sessions, although
not in a " division : " see 12 k 13
Vict. c. 18, s. 1.

(b') As to the costs for conven-

ing the special sessions, see 13 &
1-t Vict. c. 101, s. 7.

(^') As to the signature of the
notice, see tit. " Appeal," ante,
p. 132.

THE ASSESSMENT ACTS AND APPEAL. 4-39

the Uuion Assessment Act, 1864, sec. 1, the appellant must
also give twenty-one days' notice of his intention to appeal,
and the grounds thereof, to the assessment committee of the
Union ; and he is not empowered to appeal to any sessions
unless he shall have previously given notice to such com-
mittee of his objection to the valuation list, and have failed
to obtain such relief in the matter as he deems just.

The jurisdiction of the special sessions is limited to inquiring Jnrisdic-
into the true value of the hereditaments rated, and the fair- tion of
ness of the amount at which they are rated. They have no ^P^^.'^^
power to inquire into the liability of any hereditaments to be
rated : 6 & 7 Will. 4, c. 96, s. 6 (a). And by sec. 7, the
justices in special sessions will have all the powers as vested in
quarter sessions for amending or quashing the rate, and
of giving costs, which sec. 6 empowers them to award Coats.
costs.

By sec. 1 of the Union Assessment Committee Act, 1864, Conditions
27 & 28 Vict. c. 39, it is enacted, in addition to the notices of appeal
required under sec. 6 of the Parochial Assessment Act, 6 & V c^^ ^
7 Vict. c. 96, before any appeal shall be heard by any special '
or quarter sessions against a poor rate made for any parish
contained in any union to which the Union Assessment
Committee Act, 1862, applies, the appellant shall give
twenty-one days' notice in writing previous to the special or
quarter sessions to which such appeal is to be made of the
intention to appeal, and the grounds thereof, to the Assessment
Committee of such Union ; provided that no person shall be
empowered to appeal to ani/ sessions (special or quarter)
against a poor rate made in conformity with the valuation
list approved of by such committee, unless he shall have The appql-
given to such committee notice of objection against the said lant must
list, and shall have failed to obtain such relief in the manner ^f^'^.
as he deems just ; and which objection, after notice given at , ,^l ^^ _
any time in the manner prescribed by the said Act wdth li^f "
respect to objections, the committee shall hear, with full committee
power to call for and amend such list, although the same bound to
has been approved of, and no subsequent list has been trans- hear obli-
mitted to them ; and if they amend the same, shall give g'^^^-ions.
notice of such amendment to the overseers, who shall there-
upon alter their then current rate accordingly. The valua-
tion lists on amendment after appeal need not be re-deposited
under sec. 17, "Act 1862," R. v. Edmonds, L. K. 9 Q. B.
598; 43 L. J. M. C. 156; 31 L. T. 237; 22 W. R. 944.

(a) Sections 6 & 7 are repealed as to the metropolis.

440

THE POOR-KATE.

Assessment
committee
co-respon-
dents.

Costs out
of common
fund.

Service of
Botices on
committee.

Failing to

obtain

relief.

By sec. 2, Act 1864, the assessment committee may be
co-iespondents with the consent of the guardians of the
union, but in the name of the guardians, in like manner,
and with the same incidents, and subject to the same
liabilities, and entitled to the same remedies and rights, as
in the case of persons, other than the overseers to whom
notice of appeal may be given.

And by sec. 3, the costs of the committee are to be
charged to the common fund of the union, unless the Court
before whom such appeal is heard shall direct the costs, or
any part thereof shall be charged to the parish, the rate of
which is appealed against.

Under sec. 42, Act 1864, notices may be served on the
committee by leaving them at the office of the clerk to
the board of guardians, or sending them by post, addressed
to the committee at such office, or by delivery to their
clerk, or at his place of abode (a).

On the requirement that the appellant, before he acquires
a right of appeal, should have "failed to obtain relief"
on his complaint made to the assessment committee against
the valuation list, several cases have been decided : two of
those authorities, in particular, are in apparent conflict, and
require serious attention in making an appeal. The cases
alluded to nre B. v. The Great Western By., L. R. 4 Q. B.
32.3 ; 38 L. J. M. C. 89; 10 B. cfe S. 318; 20 L. T. 481 ;
17 W. Jl. 670; and R. v. Wiltshire, 48 L. J. M. C. 148;
4 Q. B. D. 326.

In R. v. Tlie Great Western Ry., after the appellants had
failed to obtain relief from the committee, they appealed
against a rate to the quarter sessions. On the hearing at
the sessions a special case was granted, and whilst it
w^as pending another rate was made. Without going again
to the committee, the parties appealed direct to the
sessions, and sought to enter and respite their second
appeal, adjourning the hearing on the ground that the
case granted on the first appeal Avas not disposed of, and
that the same ques^tion w-as then involved. The sessions
refused to enter the appeal, and the Court of Queen's
Bench held they w^ere right ; Cockburn, C, J., saying,
" Ever}^ appeal against a rate is a fresh proceeding ; and
whatever conditions the statute annexes to these proceed-
ings must be followed." " The assessment committee," said

(a) Service at the place of vice of the notice of the order of
abode is an addition to the ser- renaoval in a pauper case.

THE ASSESSMENT ACTS AND APPEAL. 441

Lush, J., "are made the first appellant body : the appellants
must go through them to the quarter sessions."

In R. V. Wiltshire (supra), the appellant had failed to
obtain relief of the committee before a poor-rate was actually
made in conformity with the list ; it was, in this case, held
that the party need not make fresh application for relief to
the committee after the rate was made. Here there had
been no appeal. And although the Lord Chief Justice said,
" his confidence was somewhat shaken in the correctness of
the decision in R. v. The Great Western Ry., it was, he
said, distinguishable, on the ground, no doubt, pointed out
by Mr. Arthur Charles, that the second rate was made while
an appeal was pending against the first rate, and there had
been no appeal in this case." " Without overruling R. v.
The Great Western Railway Co." said the Lord Chief Justice,
" we may give effect to the intention of the Legislature by
saying that, when a second rate is not in question, a party
who has been once before the assessment committee, and
failed to obtain relief, is in a position to appeal to the
next practicable sessions. Here the appellants ought to
have appealed to the July sessions." " It seems," remarked
the Lord Chief Justice, in reply to Mr. Webster's argument,
" that the Legislature could never have intended anything
so absurd, as that though a party may have gone before the
committee in the first instance, and sought relief once, he
was bound to go again through the same process as soon as
the rate was made before he had a right to appeal. I
should struggle to the uttermost before arriving at a con-
clusion so unjust." (See the report in the Law Journal.)
R. V. Wiltshire followed the decision by Hannen, J., in
R. V. Derbyshire, 25 L. T. 43 j 19 W. R. 934, in which the
rate appealed on was made pending the hearing the com-
plaint, before the committee, against the list.

The result is, that where the rights of the appellant, before Appellant's
the assessment committee, have been exhausted by his rij^lits be-
making his appeal to the sessions, whether special or ^^"^ ^^ ^
quarter sessions, and another rate is made, although on committee
the same Vciluation list, a fresh application must be made must be
to the assessment committee. New objections might arise; exhausted
the committee might be differently constituted : or the com- ^^^^^^
mittee on reconsideration might form another view of the
questions before them. Where, how^ever, there has been
no such appeal, then the appellant may make his appeal
to the next practicable sessions, after the making a rate,
on the assessment complained of, giving the notices as

u 3

442

THE POOR-EATE.

There
must be a
decision ou
merits by
the com-
mittee.

Making an
alteration
in the rate,

Appellant
confined to
grounds of
appeal be-
fore the
committee.

But not re-
stricted to
the evi-
dence.

When
parties
need not
go before
the com-
mittee.

The next

practicable

sessions.

required by sec. 6 of 6 & 7 Vict. c. ^6, Act 1862; and sec. 1
of -27 & 28 Vict. c. 39, Act 1864.

When an application has been made to an assessment
committee, under sec. 1 {supra), they come to a final deci-
cision before the right of appeal arises. Should they adjourn
their decision pending the hearing a special case on the
like pomt before them, the appellant will not have ''failed
.to obtain " his relief within the meaning of the section ; and
the quarter sessions will have no jurisdiction to hear an
appeal : Jie^. or Williams v. Bedminster, 1 Q. B. D. 503 ;

45 L. J. M. C. 117; 34 L. T. 795.

On the committee making an alteration in the rate which
the applicant may think insufficient, his right of appeal
attaches : R. v. Derbyshire (Hannen, J., B. C), 25 L. T. 43 ;
19 W. R. 934.

The appellant in his appeal to the special sessions, or the as-
sessment committee, will have stated his grounds of appeal ;
he will be restricted to the same grounds on his appeal to
the quarter sessions, and he will have his appeal on those
grounds on which he may have failed to obtain relief:
M. V. Bedminster, 30 L. T. 710 ; 22 W. R. 943, Q. B.

A case is reported in the Laiv Times oi 7th January, 1880,
as having been heard before Mr. E. Kay, Q.C. (now Mr.
Justice Kay), and a bench of justices, in which it was sought
to restrict the appellant to the evidence produced before the
committee, but which objection was overruled. In that case
the appellant had gone before the committee as a mere
matter of form to get his right of appeal, and had offered no
evidence ; he submitted certain amounts to the committee
without any explanation and " without prejudice," which were
rejected. The sessions held the right of appeal fully arose.

Where the objection to the rate is one which does not
affect the valuation list, and is not one on which the com-
mittee is empowered to give relief, as where the appeal is on
the ground of a statutory exemption, such appeal may be
prosecuted without going previously before the assessment
committee : Walsall v. London and Nor^th Western Ry, Co.,

46 L. J. M. C. 102.

The 17 Geo. 2, c. 28, s. 4, requires an appeal against a
rate to be made to the next practicable sessions after the
publication of the rate. This enactment must now be
governed by sec. 1 (supra), requiring the appellant to have
"failed to obtain relief" from the assessment committee.
(On the point, which is the next practicable sessions, see infra,
tit. "Appeal.'")

THE ASSESSMENT ACTS AND APPEAL. 443

Where several ratepayers join in an appeal to the com- Divisi-
mittee or sessions a part of them may abandon their appeal, bihtyofthe
but the remainder will have their right to proceed : see R. v. ^^^^^ •
Kent, 6 L. R. Q. B. 132 ; 40 L. J. M. C. 76 ; 19 W. R. 205 ;
and the point discussed, infra, tit. "Appeal."

After the termination of an appeal against a poor rate On appeal
notice is to be given, under sec. 1 (Act 1864), 27 & 28 Vict, notice of
c. 39, to the overseers of any amendment of the rate, and ^^^^^^^^ ^^
the valuation list will be amended as directed by sec. 22, overseers.
Act 1862, but the list amended on appeal will not require to
be re-deposited under sec. 21 (^6.). A rate therefore made on
such list would be good : R. v. Edmonds, L. R. 9 Q. B. 598 ;
43 L. J. M. C. 156 ; 31 L. T. 237 ; 22 W. R. 944 ; and by Costs of
sec. 34 the costs of such survey and valuation are to be "ew survey
costs in the appeal at the discretion of the court. ^. ^^^^^^'

By sec. 35, Act 1862, the Act is not to affect the composi- " .
tion for rates by owners of property, and their being assessed ^^i^^^f foJ.*
in such manner as they were enabled by any statute before rates.
the passing of the Union Assessment Act. See the Repre-
sentation of the People's Act, 1868, and the Poor Rate Assess.
and Collec. Act, 1869, 32 & 33 Vict. c. 41, as to the assess-
ment and collection of rates in respect of houses of low rentals.

As to the including of all rateable property in the assess-
ment, see Sunderland Overseers v. Sunderland Union, 18 C.
B. N. S. 532 ; 34 L. J. M. C. 121 ; 13 L. T. 239.

The clerk to the assessment committee must be the clerk The clerk.
to the guardians; Act 1862, s. 10; and the notices wdll be
addressed to him either as " clerk to the guardians " or
" assessment committee," according to the character of the
appeal.

The costs of the survey and valuation and of the appeal Costs.
will be at the discretion of the court to be paid as may be
thought fit. Where the appeal is on the ground that the
rateable hereditaments are valued beyond their rateable
value, if the court determine in favour of the appellants, the
court shall ascertain the costs, and order the board of
guardians of the union in which such parish is situate to
pay the same to the appellants out of the common fund of
the union : Act 1862, s. 35.

444

THE POOR-RATE.

Tlie Valuation (Metropolis) Act, 1869.

Titles of

Acts.

Overseers.

The Valuation (Metropolis) (a) Act, 1869, applies to
unions situate within the Metropolitan Board of Works
jurisdiction : sec. 3. And the Union Assessment Committee
Act, 1862, is termed '* the Principal Act," and that, and the
amending Act of 1864, are incorporated with it, with the
exception of such clauses as are repealed, in reference to the
metropolis, by the schedule to the Act 1869 (6).
Ratepayer. The persons who are to be assessed to the rate are those
who are liable to any rate or tax in respect of property
entered in any valuation list : sec. 4. An owner will be
included: see 32 & 33 Vict. c. 41, s. 4, The Poor Rate
Assessment and Collection Act, 1869.

The "overseers" will be any person or bodies of persons
performing the duties of overseers in the making or collect-
ing of poor rates : sec. 4. This will include the local boards
of the various parishes in the metropolis where such boards
perform the duties of the overseer : see also sec. 5, sub-s. (1).

A " parish " is defined to be a place for which a separate
rate can be made, or a separate overseer is appointed : sec.
4 ; see also 29 & 30 Vict. c. 113, s. 18.

A " union " will be a parish for which there is a separate
assessment committee, under the Metropolis Valuation Act,
and the Acts incorporated therewith : sec. 4.

In the Metropolitan Act the term used in the Principal
Act, sec. 15, "gross estimated rentaV^ is abandoned for
" gross value,'^ and which means " the annual rent which a
tenant might reasonably be expected, taking one year with
another, to pay for a hereditament, if the tenant undertook
to pay all usual tenant's rates and taxes, and tithe commuta-
tion rent charge, if any, and if the landlord undertook to
bear the cost of the repairs and insurance, and the other
expenses, if any, necessary to maintain the hereditaments in
a state to command that rent."

Parish.

Union.

Gross
value.

(«) Bee " The Metropolis Man-
sgement Act, 1855," 18 & 19
Vict. c. 120.

(b) The parts of the Principal
Act which are repealed as to the
metropolis are : — " Sections 3, 14,
15, — the following words in sec.
17, " and a copy of such valuation
list shall be forthwith delivered
to the Board of Guardians,' — sees.

22 to 27,— sec. 28, down to
' schedule hereunto annexed ' —
sees. 29, 31 to 36, 39, 41, 42,
43, and 45."

Sees. 1, 9, & 11 of the
Amendment Act of 1864 are in
like manner repealed; also sees.
30, 31, 32, and 38 of the Amend-
ment Act, 1868.

THE VALUATION (METROPOLIS) ACT, 18G9. 445

The term " rateable value " means the gross value after Rateable
deducting therefrom the probable annual average cost of value,
repairs, insurance, and other expenses as above mentioned.

"Hereditament" includes all property liable to any rate Heredita-
or tax in respect to which the valuation list is, by the 45th ment.
sec. of the Act, made conclusive evidence of the gross value,
and of the rateable value thereof : sec. 4.

The assessment committee will be appointed under sec. 5 Assessment
of the Act. Where a parish is in a union formed under the committee.
Poor Law Amendment Act, 1834, the Principal Act of 1862,
s. 2, will be in operation. But where the parish is not in-
cluded in the Act of 1834, then the vestry elected under the
Metropolitan Management Act, 1855, subject to the effect of
Local Acts (of which there are several {a) ), the guardians
inider such Act will appoint the committee, or, in other
cases, the vestry of the parish.

The overseers will make out the valuation list : sec. 6. The valua-
And the proceedings, sees. 17 (6) to 21 of the Principal Act, as tio» list,
to the deposit of the list, the objections to the valuation
made before the assessment committee, the holding the
committee meetings, the alteration and redeposit of the list,
are to be observed, subject to any alterations made by the
Act : sec. 7.

Under sec. 51, the valuation list is to be made out in the Rules for
form given in schedule 2 to the Act. The form there sets the forma-
out in several columns the particulars to be specified, *'^" ^^. *^®
thus: — 1. The number; 2. Name of occupier; 3. Name.of]-g^^
owner ; 4. Description of property ; 5. Number of class ;
6. Name or situation of property ; 7. Extent ; 8. Gross
value as estimated by overseers ; 9. Gross value as esti-
mated by surveyor of taxes; 10. Kate <»f reduction per
cent.; 11. Rateable value ; 12. Gross value as finally deter-
mined by the assessment committee; 13. Rateable value as
finally determined by the assessment committee.

No hereditaments are to be included in the list (except
tithes, or payments in lieu of tithes) which are charged
according to Rule 2, in sec. 60 of the Income-Tax Act, 5 tt 6
Vict. c. 35. This provision will include : — 1st, Ecclesiastical
dues ; 2ndly, Manorial dues and services, or other casual profits,
not being rents or other annual payments reserved or charged ;
3rdly, fines received in consideration of any demise of land

(a) See note to Glen's Lum- are referred to.

ley's Union Assessment Acts, (i) Except so far as sec. 17 is

loth e L, p. 97, where the seve- repealed, (n. (V), p. 414.)
ral local Acts for each parish

446

THE POOR-RATE.

or tenements, not being part of a manor or royalty demisable
by custom, provided such fines have been applied as pro-
ductive capital, on which a profit has arisen, or will arise,
otherwise chargeable under the Act.

Under sec. 52, the percentage or rate of deduction to be

made from the gross value in calculating the rateable value

is not to exceed the amounts in the 3rd schedule to the

Act (a).

Notice of Where the overseers insert any hereditament, not pre-

(fl) The third schedule enumerates the following as the maximum
rate of deductions : —

Class 1. — Houses and buildings, or either of
them without land other than gar-
dens, where the gross value is
under £20

„ 2. — Houses and buildings, without land
other than gardens and pleasure
grounds valued therewith for the
purpose of inhabited house duty,
where the gi-oss value is £20 and
under £40 . ^ . . .

,, 3. — The same, where the gross value is
£40 or upwards ....

„ 4. — Buildings without land which are not
liable to inhabited house duty, and
ai-e of a gross value of £20 and
under £40

„ 5. — The same, where the gross value is
£40 and upwards ....

„ 6. — Land with buildings not houses

„ 7. — Land without buildings

„ 8. — Mills and manufactories .

„ 9. — Tithes, tithe commutation rent
charge, and other payments in lieu
of tithe

„ 10. — Railways, canals, docks, tolls, water
works, and gas works

„ 11, — Rateable hereditaments not included
in any of the foregoing classes

Maximum rate c/ ileduc-

tion.

Per cent, or proportions.

25

or

20

or

ith.

Ith.

IGfrds or ith.

20

IGfrds
10
5
38ird

or

or
or
or
or

itti.
ith.

Jgth.

sbth.
Ard.

To be determined
in each case
according to the
circumstances
and the general
principles of
iaw.

Class 8 will receive a wide and general construction, and will in-

elude such buildings as are used for a distillery or a brewery, a

builder's workshop, or a newspaper printing-office. See Lumley's

Union Assessment Acts, by W. C. Glen, 10th ed., 152.

Returns of All occupiers are bound to make the same returns to the overseers

value. of the value of their holdings as they have to make under the Income

Tax Act, sec. 55, Metropolitan Valuation Act ; see also sees. 56 — 58.
Privileges All rights of exemptions and reductions, and all privileges for
preserved, being rated on any exceptional principle of valuation, are preseived
from the operation of the Act : sec. 54,

THE VALUATION (METROPOLIS) ACT, 18C9. 44?

vioiisly assessed, in the list (see also sec. 47 as to new alteration
buildinixs), or raise the j'ross or rateable value of some ™'y^® ^^
hereditament above the value in the valuation list (or where li^^ ^q i^g
there is no valuation list, in the assessment to the poor- given to
rate); occupier.

Or where the assessment committee (otherwise than in
determining an objection) alter the list in like manner ;

The overseer must, immediately after the deposit or re-
deposit of the list, serve on the occupier of such heredita-
ment a notice of the amount of such gross or rateable value
thereof as so inserted in the list : sec. 9. And such notice
must state the times at which and the mode in which
objections are to be made : sec. 10.

Objections may be made before the assessment committee Objections.
by any person who feels himself aggrieved by reason of the
unfairness or incorrectness of the valuation of any heredita-
ment, or by the insertion or incorrectness of any matter in
the valuation list, or by reason of any omission of any matter
therefrom, or that the list has not been transmitted by the
overseers to the assessment committee. And the notice The notice,
must specify the correction which the objector desires to be
made : sec. 11.

The committee are to revise the list in accordance with Revision of
the Acts ; and on the totals of the gross and rateable value ^^^*-
being ascertained and inserted in the list, three of the mem-
bers of the committee present at the meeting are to sign the
declaration of approval and certificate, and a duplicate is to
be sent to the clerk oi the metropolitan asylum district (a),
and another to the overseers of the parish to which it relates :
sec. 14.

The overseers, on receiving the duplicate valuation, are Notice by
immediately to deposit it in the place where the parish rate- overseers
books are kept, and publish notice thereof, and of the time ^"d deposit
and mode of making appeals, and of the grounds on which
an appeal under the Act may be made.

In every jietty sessional division of the metropolis, the The
justices acting in such division are to hold a special sessions appeal.
for hearing appeals against the valuation lists of the several Special
parishes within their division, sec. 18; and of the holding ^^^^^^°^*
of which due notice is to be given, sees. 22 — 42, sub-s.
(10).

(a) It is in reference to this pealed as to the metropolis ;
deposit of the list that a portion n. (//), p. 444.
of sec. 17, Principal Act, is re-

448

THE POOR-RATE.

"Who may
appeal.

Parties
may still
appeal to
the {issess-
ment
sessions.

The owner.

Powers of

special

sessions.

The assess-
ment
sessions.

Constitu-
tion.

Same
powers
as a court
of quarter
sessions.

At such special sessions, any ratepayer or overseers of a
parish, so far as respects the valuation list of such parish,
and any surveyor of taxes (a), so far as respects the valuation
list of any parish in the petty sessional division, may, if he
or they feel aggrieved by any decision of the assessment
committee on an. objection made with respect to the unfair-
ness or incorrectness of the valuation of any hereditament in
the list, but not otherwise, appeal against such decision to
the sj)ecial sessions : sec. 1 9.

But such right of appeal will not deprive a person of any
right of appeal to the assessment sessions under the Act :
sec. 19. See also sec. 32.

As to an appeal by an owner, see 32 & 33 Vict. c. 41,
s. 13, the Poor Rate Assessment and Collection Act, lb*69.
See also sec. 70 of the Metropolis Valuation Act, 1869,
under which the owner being liable to be rated is to be
deemed the occupier.

The justices in special sessions are to hear the appeal of
which notice has been given to the assessment committee on
or before the 21st November (sec. 42, sub-s. (9)), and which
appeal is limited to the value of some hereditament ) and
any alteration in such value will only affect the rights of the
ratepayers in such parish among themselves, and shall not
of itself in any way alter the totals of the gross or rateable
value of the list as settled by the assessment committee, but
may form a reason for appeal to the assessment sessions and
superior court : sec. 20. «

In lieu of an appeal to a quarter sessions, inasmuch as the
metropolitan district extends into several counties, a special
court of appeal is created under the Act : sees. 23 — 26.

This Court is to be appointed annually at the October sessions
(or at such other time as the appointing body may fix), and
is to be constituted of three justices of Middlesex (of whom
the assistant judge is to be one), two justices of Kent,
Surrey, and London (to be appointed by the court of
aldermen) : sec. 24.

And by sec. 26, in all matters necessary for the execution
of their duties they are to have the same jurisdiction and
powers, and be in the same position, as a court of quarter

(a) When the surveyor of taxes
gives notice of objection or of
appeal, the amount specified in
his notice as being in his judg-
ment the gross value of the here-
ditament referi'ed lo, shall be

inserted in the list unless it be
proved to the satisfaction of the
assessment committee, special
sessions, or assessment sessions,
that such amount ought not to be
so inserted : sec 53,

THE VALUATION (METROPOLIS) ACT, 18G9. 449

sessions ; and, subject to the express provisions of the Act,
are to conduct their proceedings, be convened, and be in the
same position, as near as may be, as if they were a court of
quarter sessions (a).

Any ratepayer, and any surveyor of taxes, and any over- Who to
seer, with the consent of the vestry of his parish (/>), who '-^VV^^^ to
may feel aggrieved by any decision of the assessment com- ^jgnt^^cQ^I
mittee, on an objection made before them to which he was mittee.
a party, or by any decision of special sessions, whether he
was a party or not, may appeal against such decision to the
assessment sessions : sec. 32.

And under the same section, any assessment committee in
tlie metropolis, or in the county in which the parish is situate,
any overseers in the metropolis, or such county, with the
consent of the vestry of such parish (b), any ratepayer in the
metropolis or such county, and any body of persons author-
ize 1 by law U) levy rates or require contributions payable
out of rates in the metropolis or of such county, may appeal
to the assessment sessions if they feel aggrieved by reason —

(1) Of the total of the gross value of any parish being
too high or too low ;

(2) Of the total of the rateable value of any parish being
too high or too low ;

(3) Of there being no approved valuation list of some
parish.

Notice in writing 6f every appeal, whether to special Procced-
sessions (before the 21st November, sec. 42, sub-s. 9) or ings on thcs
the assessment sessions (before the 14th January, sec. 42, ^PP^^l-
sub-s. 12), specifying the connection which the appellant ^^<^*^^C6 of
desires to have made in the valuation list, must be served, ^PP^'^^*
within the above respective times, on the following persons,
namely : —

In all cases on the surveyor of taxes of the district to
which tlie appeal relates ; and on. the clerk to the
assessment committee which approved the list wholly
or partly questioued by the appeal ;

When the appeal relates to the unfairness or incorrect-

Qa") The conrt may, under are to be appointed, sec. 29.

approval of a Secretary of State, (A) See sec. 144, Public

make rules of court, sec 27, and Health Act, 1875, and 18 k 19

form a table of fees, sec. 28. Vict. c. 120.

Places for holding ihe sessions

450

THE POOR-HATE.

Duty of
the clerk
to the
aasessment
committee.
The hear-
ing the
appeal.

Adjourn
appeal.

Further

notice
allowed.

Confirm or
alter list.

Clerk of
the com-
mittee to
attend the
court.

Making
valuation
list where
none ap-
proved.

ness of the valuation of, or to the omission of a here-
ditament occupied by any person other than tiie
appellant, or to the incorrectness of any matter
stated in the list with respect to any such heredita-
ments, then on such person ;
If the assessment committee or a surveyor of taxes is
the appellant, then also on the overseers of the parish
to which the appeal relates.

Provided that it shall not be necessary to serve any notice
of appeal on the surveyor of taxes in any case in which the
appeal relates only to the rateable value of any heredita-
ment {a) : sec. 33.

The clerk of the assessment committee, on receiving notice
of an appeal, is forthwith to serve notice thereof on the clerk
of the petty sessions, or of the assessment sessions, as the
case may require : sec. 33.

The special sessions or assessment committee will hear and
determine such appeals as may be brought before them in
such order as they may appoint. They may from time to
time adjourn an appeal : sec. 34.

If from any accident or mistake due notice of appeal had
not been given, or if any additional notice of appeal appears
to be required, they may, if they think it just, order notice
of appeal to be given : sec. 34.

They may confirm or alter the valuation list, so far as it is
questioned by the appeal, in such manner as they may think
just; but shall not make any alteration in contravention of
the Act : sec. 34.

The clerk to the assessment committee (or his deputy)
must attend the court with the valuation list to which the
appeal relates, and any alteration will be made by the justice
acting as chairman of the sessions in that list, and he will
place his initials against such alteration : sec. 34.

On an appeal to the assessment session, it appearing
there is no approved valuation list for some parish, they may
appoint some proper person to make one ; and he will have
the same powers as those of the overseers.

The list is to be deposited or otherwise made known to the

(a) The surveyor of iaxes has
to fill in a column in the valua-
tion list stating his estimate of
the gross value of the property to
be rated. A duplicate of the list
lias to be sent to him (sec. 8) for

such purpose, and which he must
return to the committee Avithin
twenty-eight days. As surveyor
of taxes he has the same right of
appeal as others under the Act :
sec. 19.

THE VALUATION (METROPOLIS) ACT, 1869. 451

persons interested as the court may direct ; but in a manner
as nearly as possible as provided in respect to the original
list. The costs will be deemed part of the committee's
expenses under the Principal Act : sec. 35.

The court may adjourn the hearing the appeal until the Adjourn^
new valuation list is received. CourV^ *^*

The costs of the appeal will be in the discretion of the „ .
court : sec. 6\).

As to the recovery of the costs, see 17 Geo. 2, c. 38, s. 4 ;
11 & 12 Vict. c. 43, s. 27; 12 & 13 Vict. c. 45, s. 18; B.
V. Iluntli/, 3 E. & B. 172 ; 23 L. J. M. C. 106.

Under sec. 40 a special case may be stated for the decision Special
of a superior court, and that the writ of certiorari must be ^"^e.
sued out within three months; (see now the Summary Juris-
diction Act, 1879) : sec. 40.

And so at any time alter notice of appeal has been given,
the parties by consent, or by order of a judge, may state the
facts of the case in a special case for the opinion of a superior
court, and to agree that a judgment in conformity with the
decision of such court, and for the cost as may be adjudged,
may be entered, on the application of either party, at a
meeting of the assessment sessions to be held next or next
but one after such decision, and such judgment may be
entered accordingly, and be of the same effect as if given by
the assessment sessions ; and if necessary the sessions shall
hold a court for the purpose.

And notice of such decision is to be served on the clerk Notice to
of the assessment committee which approved the list o^ei'seers,
questioned by the appeal : sec. 40. And notice is also to ^'
be sent to the overseers and surveyor of taxes, of the
parish to which the altered list relates, and such alterations
are to be entered on the duplicates deposited with them :
sec. 41.

And notice of any alteration in the total of the gross and
rateable value of the valuation list, is to be sent to the clerk
of the managers of the Metropolitan Asylum District (a),
and the clerk of such managers is to send notice of such
alteration to every person and body of persons who have
power to levy, or make any rate, or assessment, or require
any contribution based on such total : sec. 41.

The valuation list will be in force for five years next after Duration
the 6th April succeeding that on which it is made : sec. 43. o^ ^^^ hst.

The valuation list will be conclusive evidence of the gross The valua-

(rt) See The Metropolitan Poor Act, 1867, 30 Vict. c. 6.

452

THE POOR-RATE.

tion list,

conclusive

evidence.

Service of
notices.

Publication
of notices.

Amend-
ment of
errors in
rate by two
justices.

Omissions
from the
rtite to be
corrected
by magis-
trate.
Appeal in
quarter
sessions.

Form of
rate.

value and of the rateable value of the several hereditaments
included therein ; and of the fact that all hereditaments
required to be inserted therein have been so inserted :
sec. 45.

All orders and notices made or given by the assessment
committee will be sufficiently authenticated if signed by their
clerk. Notices, orders and documents to be served or sent
to any person or body of persons corporate or unincorporate,
may be either delivered to such person or the clerk of such
body, or left at the usual place of abode of such person or
clerk, or at the office of such clerk or body, or (if such
abode cannot on reasonable inquiry be discovered) at the
premises to which the order, notice, or document re-
lates.

They may also be served by post prepaid letter, addressed
to such person or to the office of such body, or to their clerk.
The notice, &c., will be deemed to have been served at
the time the letter would liave been delivered in the
ordinary course of post ; and it will be sufficient proof to show
the letter was properly directed, prepaid, and posted : sec. Qb.
Any notice required by the Act to be published by the
overseers shall, on the Sunday next following the receipt
thereof, or the document to which the notice refers, and the
two following Sundays, be published in the manner a rate
allowed by justices is published : sec. 66. That is, by affixing
the same on or near to the doors of all the churches and
chapels in the parish. See 17 Geo. 2, c. 3, s. 1 ; 1 Vict. c.
45, s. 2.

Any person aggrieved by reason of any clerical or arith-
metical error in a rate in the metropolis may apply to two
justices, or a metropolitan magistrate, who may amend the
rate so far as respects such error : sec. 71.

Whenever a person liable to be rated at the time the rate
is made is omitted from any rate in the metropolis ; or if a
person is described therein in a wrong name ; the overseers
may, after giving to such person seven clear days' notice of
their intention, apply to two justices or a metropolitan
magistrate, who may hear the case and insert the name so
omitted, or correct the name so wrongly entered. And such
person will have the same right of appeal, against the
insertion of his name in the rate, or the correction made,
to the general quarter sessions holden next after such
insertion or correction, in like manner as he might have
had against the rate : sec. 72.

Every rate is to be made in the form specified in the

REMOVAL AND SETTLEMENT OF THE POOR. 453

fourth schedule of the Act, and be signed by the overseers.
And the justices are not to allow the rate without the
declaration by the ovei-seers that the rate has been compared
with the valuation list, and that the rate is made according
to the value appearing in such list : sec. 73.

REMOVAL ANT> SETTLEMENT OF THE POOH.

The earliest statute relating to the poor was 1 2 Rich. 2, c. Of settle-
7, awarding punishment on " beggars able to serve," and ments
making provisions for " impotent Jaeggars " who were to S^"^^ y-
repair to the place of their birth.

By 1 1 Hen. 7, c. 2, farther provision was made for them
to resort to the hundred where they last " dwelled," or were
last known, or were bom. And by 19 Hen. 7, c. 12, to
" where born, or where they had made their last abode for
three years " — that is — as by 1 Ed. 6, c. 3, where they had
been " most conversant " for three years.

By 1 Jac. 1 they were to be sent to the place of their
dwelling, if they had any ; or to where they last dwelt by
the space of 07ie year ; if that could not be known, then to
the place of birth (a).

The present law of poor-law settlement springs from 13 & Formation
14 Car. 2, c. 12, s. 1, by which, upon complaint made by the of the pre-
churchwardens and overseers of the poor of any parish to gg^^ig^^^,^^
any justice of the peace within forty days (6) after any ^f p^^jj..
person coming to settle in any tenement under the yearly rent
of i^lO, any two justices of the division where any persons,
that are likely to be chargeable to the parish, shall come to
inhabit, might by their warriint remove such persons " to
such parish where he or they were last legally settled either

(rt) It is remarkable how, in and by 3 W. & M. c, 11. s. 4,

these later days, history is repeat- the forty days were to be taken

iiig itself with regard to the poor from the time of the publication

laws in their reverting back to of such notice in the church,

the regulations of former limes. The object of such notice was

(J) The forty days, by 1 Jac. notoriety, that persons coming

2. c. 17; were to be accounted to inhabit or likely to become

from the time of deliver^' of chargenble might be removed,

notice in writing of the abode, The effect of this notice was

and number of family of the new taken away by 35 Geo. 3, c. 101,

comers to one of the church war- s. 3. See jfost, p. 454.
dens or overseers of the poor ;

454

REMOVAL AND SETTLEMENT OF THE POOB.

Mr. East's
Act, 35
Greo. 3, c.
101.

'* Actual
chargea-
bility."

Settlement
defined.

[R. V. ffad-
ileiiham,
If) East,
463.]

Wlio may
have a
settlement.

[S. C. St.
Botolph V.
St. John,
Burr. 367.]

Grounds
for acquir-
ing a settle-
ment.

Place of
settlement.

Exceptions

as a native, hoiifeeholder, sojourner, apprentice, or servant
for the space of forty days at least."

The 35 Geo. 3, c. 101 (1795), known as Mr. East's Act,
enacted that no poor person should be removed under any
order of removal from the place where such person was
inhabiting to his or her place of last legal settlement until
his or her actual chargeability to the parish in which such
person should inhabit.

By the term settlement of the poor is to be understood
a permanent right to take the benefit of the poor-laws
in a particular parish or place maintaining its own poor.
Gamble?- on Parish Settlement, 1, which settlement could
formerly have been extensively communicated from person
to person: M. v. aS'^. Mary, Cardigan, 6 T. R. 116. The
acquisition of the same right in another parish would,
however, destroy the prior one, and the pauper was always
to be removed to the place where his last legal settlement
had been acquired ; the pauper had no option in the selec-
tion of his place of settlement. See 13 &. 14 Car. 2, c. 12.

The settlement may be acquired by all natural born sub-
jects of the Queen, born in any part of her dominions annexed
to the Crown of England. A foreigner whose country is at
peace with England may gain a settlement, however, by
occupation of a tenement. "The law of humanity," said Lord
Ellenborough, "obliges us to afford him relief" : B. v. J^Jast-
hourne, 4 East, 103; aS'^. Giles's v. St. Margaret's, 1 Sess. Ca. 97.
See post as to Irish and Scotch families.

Settlements might be acquired as follows: — by birth,
hiring and service, apprenticeship, renting a tenement, estate,
office, payment of rates, or by holding a certificate. As to
cumulative settlements not being known to the law, see
Edwards v. BohUtt, 1 M. k S. 120.

The settlements by hiiing and service and by office were
abolished by "The Poor Law Amendment Act, 1834," 4 (fc 5
Will. 4, c. 76, s. 64.

The abolition was, however, only prospective ; but at this
distance of time, and considering that derivative settlements
have been abolished by 39 & 40 Vict. c. 61, s. 35, settle-
ments by hiring and service and by office, being of a personal
character, may be looked on as mostly obsolete.

A settlement by a poor person could be gained in any
place or district having known limits, contributing to one
common fund, raised and disbursed within it, for the relief of
its own poor : R. v. Rafford, 1 Stra, 512.

But exceptions have modified this general rule.

REMOVAL AND SETTLEMENT OF THE POOR* 455

By 54 Geo. 3, c. 170, s. 2, no person will acquire a settle- to the
ment in any district by reason of being born of a mother general
actually confined as a prisoner within a prison ; or any house ^jg^Jg^Qf °
licensed for the reception of pregnant women under 13 Geo. settlement.
3, c. 82, ss. 3, 5, or other places appropriated for the charit-
able reception of pregnant women, in which such prison or
house shall be situate : R. v. Manchester, 4 B. & A. 504.

By section 3, a similar disability to acquire a settlement is Birth in
enacted in reference to the birth taking place in a house of ^^"^^ ^^
industry, or house for " the reception and care of the poor," ^^ "^ ^'
in any district maintaining its own poor excepting as a settle-
ment " in the district, &c., by whom the mother of such
person was sent to, and on whose account the mother of
such person was received and maintained in, such house : "
R. V. St. Clement's Danes, 32 L. J. M. C. 25; R. v. Coombesy
25 ih. 59.

By sec. 4, prisoners for debt, or while in contempt of court,
will acquire no settlement.

By sec. 5, no toll-gate keeper, or person renting the tolls. Toll-gate
and residing in the toll-house, will acquire a settlement ; keeper,
nor under sec. 6, will any person maintained in a charitable
institution gain a settlement by residence therein.

By 59 Geo. 3, c. 12, s. 11, any house or building hired or House in
purchased under that Act, will in all questions of settle- occupation
ment be deemed and taken to be part of the parish for ^^ pa^^sh.
which the same was purchased and used as a poor-house.

1 & 2 Will. 4, c. 42, provides for the obtaining of land
for the employment of poor persons ; but no settlement will
be gained by renting, or occupying, or paying parochial
rates for such land, either alone or with other land. So
also as to inclosed crown land : see 1 & 2 Will. 4, c. 59,
s. 1.

Under 4 & 5 Will. 4, c. 76, s. 33, guardians of parishes Union of
forming any " union," were empowered to agree that for the parishes,
purpose of settlement such parishes should be considered
as one parish. And by 7 «fc 8 Vict. c. 101, s. 56, for the
purposes of relief, settlement, removal and burial, the work-
house of any union or parish, and district school, will be
considered as being situate within the parish to which such
poor person is, or has been, chargeable. See R. v. St.
Clement's Danes, 32 L. J. M. C. 25 : see also 54 Geo. 3,
c. 170, s. 3 (supra).

The 9 & 10 Vict. c. 6Q, s. 1, made a residence of Jive years Residence
in a parish a ground for irremovability. The 24 & 25 Vict. ^" uaion.
c. 55, s. 1, reduced that period to three years; and that to

456

REMOVAL AND SETTLEMENT OF THE POOR.

constitute irremovability, a residence in aiii/ jyart of the
union should have the same eft'ect as a residence in any
parish. The 28 & 29 Vict. c. 79, s. 8, further reduced the
time for acquiring irremovability to one year; see a. p. 451.
And by 39 k 40 Vict. c. 61, s. 34, a person residing for
the term of three years in any parish {qy., union) (a), in such
a manner and under such circumstances in each of such years
as would, in accordance with the several statutes, render
him irremovable, he shall he deemed to he settled therein until
he acquire a settlement in some other parish [qy., union) by
a like residence or otherwise. But an order of removal on
such settlement, if made on the evidence of the pauper,
must receive corroboration : (see post^ " Settlement by
Kesidence ").

Further, as to the union of townships, see 24 & 25 Vict.
c. 55, s. 1 ; 27 & 28 Vict. c. 105, s. 1 ; under which the
residence in any part of a union will have the same effect in
reference to the provisions for the gaining a settlement as a
residence in a parish : see R. v. Bolton-le-Sands, 35 L. J. M.
C. 54; R. V. Great Salkeld, 33 L. J. M. C. 185 ; and such
chargeability must be incurred before any legal settlement
be gained in the union charged : R. v. Ampthill, 2 B. & C.
847 ; see 24 k 25 Vict. c. 55, s. 1.

The " coming to settle " denotes that the party comes
animo morandi vet maneyidi : mere casual poor are to be
relieved in the parish or union where they may be, without
being liable to be removed to their place of settlement : see
R. V. St. James\ Bury St. Edmunds, 10 East, 25. See also
the converse case : R. v. Oldland, 4 A. & E. 929 ; also R. v.
Birmingham, 14 East, 251 ; in which the distinction is
drawn between the case of a starving vagrant, or a person
who goes into a parish and there casually meets with an
accident, and one who, meeting with an accident, has come
into the parish animo morandi, and is an actual inhabitant.
What con- Relief given to or on account of a wife, or to or on account
sidered as of any child or children under the age of sixteen, not being
blind, or deaf and dumb, will be considered as given to the
husband or father, or if such child or children be those of a
widow the relief will be considered as given to such widow :

Casual
poor.

relief.

(ff) By sec. 44, the words in the

Act are to be construed as in the
Poor Law Amendment Act, 1834,
and the Acts amending the same ;
under the term " parish '' it would
seem, therefore, that " the resi-

dence in any part of a union
will have the same effect as a
residence in the porlxli : " 24 &
25 Vict. c. 55, s. 1 (1834). 8ee
also 31 & 32 Vict. c. 102. s. 34.

REMOVAL AND SETTLEMENT OF THE POOR. 457

The Poor Law Amendment Act, 1834, 4 & 5 Will. 4, c. 76,
8. 56 ; see R v. St Mary, Islington, 31 L. J. M. C. 233.

By 7 & 8 Vict. c. 101, s. 25, where a husband is beyond Where hua-
the seas, or in custody of the law, or confined in a licensed "^^^^ "^'
lunatic asylum as a lunatic or idiot, all relief given to his ^^^^ ^j.
wife, or to her child or children, will, notwithstanding her lunatic, or
coverture, be given to her in the same manner, and subject wife living
to the same conditions, as if she was a widow, subject to his ^P^f* ^^"^
liabilities in respect of such relief (a). And by 39 & 40 Vict.
c. 61, s. 18, the like provisions will apply to a married
woman living separate from her husband.

In either of the above cases, where the relief is given to a Relief to
child under the age of sixteen, the intention is to make the ^^^^^^ under
parent removable in respect to such relief as much as in ^^^ ®®^'
respect of relief actually and immediately given to the
parent ; and the inference is that relief given to a child of
greater age would not be relief given as to the parent, and
the time of the child being in an asylum or otherwise would
be deducted from the parent's residence so as to render them
removable. E. v. St. Mary, Islington, 31L. J.M. C. 233;
E. V. Shavington, 17 Q. B. 48 ; 20 L. J. M. C. 194.

Children born of Irish or Scotch parents who have no Irish and
settlement are entitled to their settlement by birth as soon Scotch
as emancipated. E. v. Preston, 10 L. J. M. C. 22; 12 Ad. ^^^^11^^.
& Ell. 832. In E. v. All Saints', Derby, 19 L. J. M. C. 14,
it w^as suggested by Coleridge, J., that on the desertion by
the father^ the children being removed to the place of their
birth, should the father return, they could be removed with
him to Ireland under the statute. See also E. v. St. Ones',
21 L. J. M. C. 26. In the absence of the father, the
children would be as casual poor until they gained a settle-
ment of their own. BerTchamstead v. St. Mary, Nortli-
church (Lord Hardwicke), 2 Bott. 51 ; also Ellinor Conred's
case, 2 Bott. 17; Comb. 287.

Where the father absconds, and the family becomes
chargeable to a parish, without having any legal settlement,
and he could not be found, the wife and children could not
be removed to Ireland under 8 & 9 Vict. c. 117, s. 2, with-
out the head of the family. The Poor Laiv Commissioners of
Ireland v. Liverpool, L. E. 5 Q. B. 79 ; 39 L. J. M. C. 25 ;
10 B. & S. 921 ; 21 L. T. 636 ; 18 W. R. 376. See also 10
& 11 Vict. c. 33 ; 24 & 25 Vict. c. 76 ; 26 & 27 Vict. c.
89 ; E, V. Great Claxton, 7 B. & C. 615 ; i?. v. St. Maryle-

(a) See 31 & 32 Vict. c. 122, s. 33.

458 REMOVAL AND SETTLEMENT OF THE POOR.

hone, 16 Q. B. 352; 20 L. J. M. C. 61 ; R v. St. Giles', 21
L. J. M. C. 26; 7?. v. Newchurch, 32 L. J. M. C. 19; A', v. Leeds,
o Q.B. 916; 13 L. J. M. C. 106.
Irremov- A poor person may gain a status of irremovability by a

al.le by residence in a union for 07ie year : 28 & 29 Vict. c. 79, s. 8.
residence. Under 24 & 25 Vict. c. 55, s. 1, three years were substituted
for the five years required under 9 & 10 Vict. c. 66, s. 1. The
24 & 25 Vict. c. 55, s. 1, made the residence in the union
of the same effect as a residence in any parish. R. v. Bolton-
le-Sands, 35 L. J. M. C. 54.
Break in Under this provision a break in the residence by a

resuienoe. yohnitary going away from the union (before 24 & '2b Vict. c.
55, s. 1, from the parish) to reside would be a disruption in the
residence, and destroy the irremovability, and the burthen
of proof to show there was the animus revertendi will be on
the parties seeking to establish that the absence was not
permanent. R. v. Llanelly, 20 L. J. M. C. 179 ; R. v. Man-
chester, 17 Q. B. 46.
Wlien re- No person is removable by reason of relief in consequence
movable by of sickness or accident, unless such sickness or accident will
sfck*^" ^ produce, in the opinion of the justices making the order,
permanent disability : 9 & 10 Vict. c. 66, s. 4.

The statement, on the warrant of removal, of the fact
of the pauper's "permanent disability,'' cannot be contro-
verted, no appeal lies. R. v. St. Mary and St. Andrew,
Whittlesey, 32 L. J. M. C. 78 ; R. v. Hardwick, or Priois
Hardwick, 12 Q. B. 168; 18 L. J. M. C. 177.
Form of Although the order need not negative that relief M\as

order. made necessary by sickness or accident, yet, if such was in

fact the cause, the justices ought to state it on their order ;
its omission may be ground of appeal, and it may be
shown that on the relief given the order ought not to have
been made ; see R. v. Priors Hardwick (supra) ; R. v. Goole,
12 Q. B. 172.

It will not, however, affect the proceedings if at a
subsequent period the illness appear to be curable. R. v.
Manchester, 26 L. J. M. C. 1.
Temporary The being absent temporarily for the fulfilling a contract,
absence. y^y^^ with the intention of returning, is no break of residence.
R. V. Brighihelmstone, 4 E. & B. 236 ; 24 L. J. M. C. 41. So
also where a man, being out of work, went into the appellant
parish, the place of his settlement, for the purpose of ob-
taining work or relief, and was there employed for five or
six weeks and lodged in the workhouse, his wife and family
during his absence continuing to reside in the same two

REMOVAL AND SETTLEMENT OF THE POOR. 459

rooms as before, in the parish from which he had come, ' •
and were maintained by money out of his wages. At
the expiration of the time of his temporary employment he
returned to his family. From these facts there was held to
be a clear inference of the animus revertendi from which no
disruption in the residence arose. R. v. Tacolnesfone, 12
Q. B. 157 ; 18 L. J. M. C. 44 ; 13 Jur. 80.

There must, however, be some place which can be con- What may
sidered as the pauper's residence, to which he could return l>e con-
after his temporary absence ; but it is not necessary that the sidered a
residence should be a house or even place appropriated for residence
the purpose of a residence : Cockburn, C. J., B. v. St. Leonard's,
Shoreditch, 35 L. J. M. C. 48. In that case the pauper had
lived for sixteen years in the parish of St. Leonard's, — she
was turned out of her lodgings, — she wandered about, chiefly
in the parish, without any place to sleep at in the parish.
One night she slept on the steps of a house in the parish,
and then went out of the parish for shelter and food to a
refuge, but not with the intention of abandoning the parish
of St. Leonard's, for she came back to the parish in the day-
time, and ultimately became chargeable to the parish, and an
inmate in the workhouse. The Lord Chief Justice said, in
his opinion a residence in the open air of this nature was as
much " a residence " as if it were in a house ; and as the
absence in this case was only for a temporary purpose, the
pauper had never broken the residence. '' Where a person
sleeps," said Blackburn, J., " is a matter forming an impor-
tant element in determining where a person resides ; but this
is by no means conclusive on the point. Shee, J., referred to
R. or Hartfield v. Rotherjield, 17 Q. B. 746 ; 21 L. J. iM. C. 65 ;
and R. V. The Directors of the Brighton Poor, 4 El. <fe B. 236 ;
24 L. J. M. C. 41. Blackburn, J., drew a distinction between
R. V. aS'^. Leonardos, Shoreditch, and R. v. Stourbridge Union,
34 L. J. M. C. 179, in which case the pauper, although he
had left some clothes in his lodgings, was physically away
from the parish, and there was no place which he could con-
sider his residence, although he had the animus revertendi to
take effect as soon as trade became better ; in R. v. St.
Leonard's, the woman had no place of residence out of
Shoreditch to go to ; her residence in Shoreditch continued
until she had acquired another {per Cockburn, C. J., and
Blackburn, J.). See Guildford v. St. Olave's, 25 L. T.
803, Q. B.

In R. V. Glossop, 35 L. J. M. C. 148 ; L. R. 2 Q. B. 227 ; the Inference
pauper, who had lived with her mother in G., went into tl^at imuper

X 2

460 REMOVAL AND SETTLEMENT OF THE POOR.

would stay service in another parish, where she remained a month and
»^^^7- then returned. She had taken her clothes with her, and

intended to stop if her place suited. The residence in G.
was held to be broken ; and Blackburn, J., said : " It would
be monstrous to say a person was constructively resident if,
though he intends to return at some future time, there is no
place to which he can return to reside." There was an
inference in that case, that the pauper intended to stay
away indefinitely if the place she went to had suited her.
But w^here the pauper merely left the parish on visits to her
friends, although with the intention of looking for work,
there was no such intention of permanently residing away
or to stay away permanently : in that case residence would not
be broken. E. v. aS'^. Ives, 41 L. J. M. C. 94 ; 7 L. R. Q. B.
467 ; 26 L. T. 393 ; 20 W. R. 657 : see also R. v. Worcester,
or R. V. Birmingham {Unions), 43 L. J. M. C. 102 ; 9 L, R.
Q. B. 340 ; 30 L. T. 357 ; 22 W. R. 572 ; Knareshorough
V. Pateley Bridge, 25 L. T. 590, Q. B. But the residing in
another union for only one night, the pauper not knowing
he had removed out of his union, would break the residence.
Newark v. Glanford Brigg, 2 Q. B. D. 522 ; 46 L. J. M. C.
285 ; 36 L. T. 793 ; 25 W. R. 42.
What time To sec. 1 of 9 & 10 Vict. c. ^^, there is a proviso exclud-
excluded j^^g^ '^^ ^j^g computation of the time of residence creating
putation in ii'i'emovability, the time during which the pauper shall have
residence, been a prisoner in a prison : R. v. Hartjield, 17 Q. B. 746 ;
21 L. J. M. C. 65 ; or serving as a soldier («), marine or sailor,
or residing as a pensioner in Greenwich or Chelsea Hospitals,
or being confined in a lunatic asylum, or house licensed for the
reception of lunatics, or as a patient in an hospital, or during
the receipt of relief from any parish, or shall be w^holly, or in
part, maintained by any rate or subscription raised in a
parish in which such person does not reside, not being a
hojid fide charitable gift : but a removal of a pauper lunatic
to a lunatic asylum will not be deemed a removal within the
meaning of the Act. And by 11 & 12 Vict. c. Ill, sec. 1,
it is further provided (amending 9 & 10 Vict. c. ^^), that
where any person shall have a wife or children having no
other settlement than his or her own, such wife and children
shall be removable from any parish or place, from which he
or she would be removable, notwithstanding any provisions
in the 9 & 10 Vict. c. ^^, and shall not be removable by
reason of any provision of that Act.

(fl.) A militiaman while out Ilnrton v. Leeds, 35 L. J. M. C,

training is within this proviso : 38,

REMOVAL AND SETTLEMENT OF THE POOR. 461

This amended proviso operates to render the wife or chil- Tlie pro-
dren iiTemovable only where the husband or father has T^^°o*y^I
acquired a status of irremovability : R. v. East Stonehouse, 3 ^ -^-^-^ ^ {
Ell. & B. 596; 23 L. J. M. C. 137, et idem, 4 Ell. & B. ' ' * *
901 ; 24 L. J. M. C. 121 ; and applies to all children
who have not become emancipated, whether living with
or apart from their parents : St. Olave's v. St. George^ 43
L J. M. C. 15 ; L. R. 9 Q. B. 38.; 29 L. T. 426 ; 22 W. R. 75.
But where the child has been virtually abandoned by the Abandon-
mother, without any desire on her part to renew her natural ^^nt of
rights, as where she had left her illegitimate child, when J, ^ ^ ^
only a fortnight old, in the care of another woman, and had qj^ji^ j^j^y*
herself gone elsewhere without further notice of the child — it gain settle-
was held that the child, although of such tender years, had ment.
ceased to reside constructively with its mother, and was
irremovable when it had, in fact, acquired a settlement of
its own by residence. The object of the statute was to pre-
vent a united family from being separated : E. v. Leeds j 48
L. J. M. C. 129; 4Q. B. D. 323.

The accidental circumstance of the husband's absence will Husband
not affect the removability of his family : R. v. aS'^. Ebhe, absent by
Oxford, 18 L. J. M. C. 14 ; 12 Q. B. 137 ; the test is whether, "^'^^^^^
if the husband had been present and become chargeable, would stance no
he have been removable : R. v. Pott Sprigley, 12 Q. B. 143 ; effect on
18 L. J. M. C. 33. Before the wife is irremovable in the remova-
absence of her husband, there must be ample evidence to Y -^ °
explain the cause of his absence, and to show he intended to
return : R. v. Llanelly, 17 Q. B. 40 ; 20 L. J. M. C. 179 ; a tem-
porary absence with an animus revertendi will not break the
residence : R. v. Tacolnestone, 12 Q. B. 157 ; 18 L. J. M. C. 44.

A widow to gain irremovability must herself have resided Residence
a sufficient time independently of her husband to render her ^^ ^
irremovable : R. v. Gudham, 1 E. & E. 409 ; 28 L. J. M. C. ^^^""^^
105; subject, however, to sec. 2 of 9 & 10 Vict. c. QQ, re-
stricting the removal of a widow until after twelve calendar
months from her husband's death, if she so long continue a
widow. But should, however, the widow continue to reside
in the parish or union, so as to make up her full twelve
months' residence therein, she may become irremovable under
28 & 29 Vict. c. 79, s. 6 ; any order which may then have
been made could not be acted on, but the order would
remain as evidence of the settlement in case of need : see R.
V. Glossop, 17 L. J. M. C. 171; 12 Q. B. 117. An order
unappealed against and acted on will put an end to the resi-
dence : R. V. Seend, 18 L. J. M. C. 12 ; 12 Q. B. 133.

462 REMOVAL AND SETTLEMENT OF THE POOR.

Pauper A woman who has resided sufficiently long in a union to

woman ]jq irremovable retains her status should she marry a
forePu'^r ^ foreigner having no settlement : JR. v. &t. George-inthe-East,
° ' L. R. 5 Q. B. 364 ; 39 L. J. M. C. 90.

But a wife may still be removed to a settlement derived

from her husband where he has a settlement : 39 & 40 Vict.

c. 61, s. 35, The Divided Parishes, &c., Act, 1876.
Desertion Under 24 & 25 Vict. c. 55, s. 3, a married woman de-
by hus- sorted by her husband who, after desertion, shall reside for
band ; [one] (a) year in such manner as would, if she were a widow,
wi e may render her exempt from removal, will not be liable to be

DGCOlllG

irremov- removed from the parish (b) wherein she is resident unless her

able and husband return to and cohabit with her. It appears that if

gain settle- a wife is turned out of her husband's house for acts of adul-

ment. tery, and she reside elsewhere apart from her husband, she

may become irremovable by reason of such residence as

residing apart from her husband, and that there would have

been such a desertion of the wife as to bring her case within

the section : H. v. Maidstone Guardians, 5 Q. B. D. 31 ; 49 L.

J. M. C. 25 ; 28 W. R. 183 ; see also B. v. St. Mary, Islington,

5 L. R. Q. B. 448; 39 L. J. M. C. 137; 29 L. T. 426; 22

But not as ^' ^' '^^' ^^^^ *^® mother does not become the head of the

the head of family so as to give the children a settlement.

the family. Under 9 & 10 Vict. c. ^Q, s. 3, no child under the age of

Children sixteen, whether legitimate or illegitimate, residing in any

under six- parish with his or her father or mother, stepfather or step-

^^*^"' mother, or reputed father, can be removed, nor any warrant

be granted for such removal in case such father, mother,

stepfather, stepmother, or reputed father may not lawfully

be removed from such parish.

And by sec. 2, 24 <k 25 Vict. c. 55, where a child under
the age of sixteen years, residing with its surviving parent,
shall be left an orphan, and such parent at the time of death
had acquired an exemption from removal by reason of a
continued residence, such orphan will, if not otherwise irre-
movable, be exempt from removal in like manner, and to the
same extent, as if it had acquired for itself an exemption
from removal by residence.
89 & 40 Under 39 & 40 Vict. c. 61, s. 35, a child under the age of

Vict. c. 6L sixteen will take the settlement of its father or widowed
mother, as the case may be, up to that age, and will retain
the settlement so taken until it acquire another. And by

(«) 28 & 29 Vict. c. 79, s. 8. & 25 Vict. c. 55 ; 39 & 40 Vict. c.

(J) *' Union:'' see sec. 1, 24 61, s. 34.

REMOVAL AND SETTLEMENT OF THE POOR. 4G3

the same section, an illegitimate child will be removable to Illegitimate
the settlement of its mother until such child acquires another children,
settlement.

If any such child shall not have acquired a settlement for Derivation
itself, or being a female shall not have derived a settlement settle-
from her husband, and it cannot be shown what settlement ^^^j^jg^jg^^
such child or female derived from the parent without inquiry 39 ^ 40 '
into the derivative settlement of such parent, such child or Vict. c. 61,
female shall be deemed to be settled in the parish in w^hich sec. 35.
he or she was born : ib.

A continuous residence of three years in a parish, without Three
being subject to any disability which might have rendered years' resi-
the party removable, will create a permanent settlement by f"^^^
residence : 39 & 40 Vict. c. 61, s. 34 : (see n. (6), p. 462). settlement.

Unmarried women, being with child, are no longer remov- Unmarried
able on that ground since 4 & 5 Will. 4, c. 76, s. 71 ; " single women,
woman " in that Act includes a widow : R. v. Wt/mondham, enceinte,
2 Q. B. 541 ; or a married woman whose husband is absent ^^* ^^"
under such' circumstances as would render the child when ^^"^^
born a bastard (a) ; e.g., where the husband is under ''penal
servitude," or imprisoned : R. v. Collingwood, 12 Q. B. 681 ;
17 L. J. M. C. 168; such child will follow the mother's
settlement : 4 & 5 Will. 4, c. 76, s. 71.

Children under seven years must be removed with their Children
mother for nurture : Wingford v. Brandon, Carthew, 449 ; under
2 Salk. 482 ; R. v. Birmingham, 13 L. J. M. C. 1. See ante, «^''^°-
R. V. Leeds, p. 461.

Both in Dickinson's and Pritchard's Quarter Sessions, it is Pauper
laid down that " before an order of removal is made the should be
pauper ought to be summoned and examined as to his settle- ^-"^^"^'"^^
ment." See 49 Geo. 3, c. 124, s. 4; and see remarks on ge^tiement,
this point under tit. Settlement by "Birth." before re-

It is essential that a complaint should be made of the charge- naoval
ability of the pauper, and appear on the order to have been '?^
made : see Weston Rivers v. aS'^. Peter's, 2 Salk. 492 ; R. v. , ' .
Watford, 16 L. J. M. C. 1 ; 9 Q. B. 626 ; R. v. St. Giles' -in- ^^f^^J
the- Fields, 7 Q. B. 529. The complaint need not be in
w^riting : R. v. Bedmgham, 5 Q. B. 683 ; 13 L. J. M. C. 75.

The authority of the justices to act should also be shown Authority
on the order : R. v. Stockton J., 7 Q. B. 520 ; R. v. Gasterton, "^^ J^'fJ^?^®^
14 L. J. M. C. 5, in which it was also held that the ser- J^own

(«) Under 50 Geo. 3, c. 51, a for having a bastard child : Pat-
married womnn could be com- tison, J., M. v. Collingjvood
mitted. to the House of Correctioa (supra).

4G4

REMOVAL AND SETTLEMENT OF THE POOR.

Wife and
children
should be
named in
order.

That

pauper had
come to
inhabit.

Findings
of justices
must be
positive.

Suspension
of order.

Costs

during sus-
pension.

The re-
moval
under the
order.

vice in the margin is to be taken as a material part of the
order.

The wife and children should be named in the order ; and
also the ages of the children who are removed ; and that
they have not acquired another settlement independent of
their father or widowed mother, as the case may be : see B.
V. Bowling, Burr. S. C. 178 : 39 & 40 Vict. c. 61, s. 35.

It should appear on the order that the pauper had come
to inhabit : R. v. Bury St. Edmunds, 10 East, 25. But on
a birth settlement no such residence is required : R. v. TFa^-
ford, 16 L. J. M. C. 1.

The allegations of the findings of the justices must be
stated positively and absolutely ; saying, " we believe to be
true " would be bad : Stallinghorow v. Haxley, 1 Sess. Cas.
Ca. 131, p. 142; so saying, *' according to our knowledge :"
R. V. St. Mary Ottery, 2 Bott. 346.

In certain cases the order of removal as to parishes,
35 Geo. 3, c. 101, s. 2, or imions, 30 & 31 Vict. c. 106, s. 26,
may be suspended in operation, as in the case of sickness, &c.,
the justices making an endorsement thereof on the order.
But this must be done at the time of the making the order,
the justices being after then functi officio: R. v. Llanllechid,
2 E. & E. 530 ; 29 L. J. M. C. 102 ; R. v. Sculcoates, 38 L.
J. M. C. 33 ; L. R. 4 Q. B. 33. No act done in the interval
of the suspension will alter the status of settlement : R. v.
St. John, Baclcney, 8 A. & E. 548; 35 Geo. 3, c. 101, s. 2.

The costs incurred during the suspension of the order will
be those of the parish to which the pauper has been removed,
which may be levied by distress on the parish officers refus-
ing to pay, and not paying or giving notice of appeal within
three days after demand. Where the charges exceed <£20 :
35 Geo. 3, c. 101, s. 2 ; R. v. St. John's, Hackney, 2 A. & E.
548 ; or in case of a parish comprised in a imion, the order
for expenses may be made in favour of the guardians of the
union comprising the parish to be reimbursed, and against
the guardians of the union comprising the parish to which
the order of removal was addressed : 30 & 31 Vict. c. 106,
ss. 25, 26.

By 4 & 5 Will. 4, c. 76, s. 79, no poor person can be
removed under any order of removal by reason of his being
chargeable to be relieved by any parish until twenty-one
days after notice in writing of his being so chargeable or
relieved, accompanied by a copy or counterpart of the order
of removal of such person, shall have been sent by post or
otherwise by the overseers or guardians of the parish obtain-

REMOVAL AND SETTLEMENT OF THE POOR. 465

ing such order, or any three or more of them, to the overseers
of the parish to whom such order shall be directed. The
officers of the parish may consent to receive the pauper
before the expiration of the twenty-one days.

If notice of appeal against such order shall be received by Where
the overseers or guardians of the parish within such period ^^otice of
of twenty-one days, such poor person shall not be removed ^^^^ "
until after the time for prosecuting the appeal shall have
expired, or if prosecuted, until after its final determination.
See R. V. Sussex, 34 L. J. M. C. 69 ; 4 & 5 Will. 4, c. 76,
ss. 79, 81 ; 11 & 12 Vict. c. 31, s. 9 ; and as to the time
allowed for giving the notice of appeal, see tit. " Appeal."

Under sec. 4 of the Union Chargeability Act, 1865, 28 k Authenti-
29 Vict. c. 79, every notice, statement, demand, or other cation ami
document required to be given by any such guardians (of a ^^^Y^^® °^
union formed under the Poor Law Amendment Act, 1834)
in respect of any order of removal, shall be deemed to be
sufficiently authenticated if signed by their clerk in their
name ; and shall be deemed to be duly served upon the
guardians to whom it shall be addressed if it be delivered to
their clerk personally, or be left at his office, or be sent
through the post, addressed to him at such office. And no
grievance arises on which an appeal can be made until a
service of the notice of chargeability with the order of
removal has been so served in accordance : see R. v. Shrews-
bury {Recorder), 22 L. J. M. C. 98 ; 1 E. & B. 711, overruling
R. V. Brixham, 8 A. & E. 375 ; 7 L. J. M. C. 87; R. v.
Shrewsbury, 22 L. J. M. C. 2.

11 & 12 Vict. c. 31, s. 3, provides for the clerk to the Clerk to
removing justices keeping and supplying copies of the justices to
depositions on which orders for removal are made. ?®P copies

A removal under a valid order is a complete disruption of, tions.^^^'
and puts an end to, the residence of the pauper : R. v. u^- + *
Halifax, 17 L. J. M. C. 158 ; 12 Q. B. 111. removal

The board of guardians of a parish, ivhen authorised hy the under valid
Local Government Board to do so, may apply for orders of^^^®''-
removal, and defend appeals against such orders in the place When
of the overseers, and with the like powers and subject to ^^^"^^^^^ of
the like liabilities as guardians of a union are entitled or ^^TaX^
are subject to in respect of such orders : 39 & 40 Vict. c. 61,
s. 25. See also 11 & 12 Vict. c. 110, s. 8 ; 28 & 29 Vict.
c. 79, ss. 2—7.

X 3

4G6

REMOVAL AND SETTLEMENT OF THE POOK.

Abandon-
ment of
order of
removal.

Super-
sedeas by
justices
before ap-
peal.

Not after
appeal.

(xeneral
X»ower to
abandon
order.

Abandonment of the Order of Removal.

The power always existed in the justices to abandon an
order of removal which they had made : R. v. Llanrhydd,
Burr. S. C. 658 ; R. v. Diddlebury, 12 East, 359. This may
be done by supersedeas under their hands and seals before
execution of the order and removal : Fancras v. Rumbald^
Stra. 6 ; 2 Bott. 631, as stated by Bayley in R. v. Alnwick,
5 B. & A. 184. Or it may be so abandoned by the justices
after the removal, if the pauper had been received and there
had been no notice of appeal : R. v. Yorkshire, W. R. [Long-
wood V. Halifax), 2 Q. B. 705.

Although it would be most convenient, as a mode of
authenticating the abandonmeut of the order, to obtain the
supersedeas by the justices, and in many cases such had been
done, it was doubted by Coleridge, J. {Cur. adv. vult.),
whether the justices are not fundi officio as soon as they
have sealed and delivered their order : in makinc? the order
they exercise a statutable power, and no statute in terms
gives them authority to supersede the order when once
made. " I should have thought," said his lordship, "that
such a power was almost necessarily incident to that of
making the order, so long as it remained unexecuted, and there
are not wanting decisions which give countenance to this
opinion." R. v. Anglesea, 12 L. J. M. C. 131, 133 ; 7 Jur.
701. See also R. v. Yorkshire, W. R. {sup.) 2 Q. B. 705.

But after an appeal made against an order of removal the
justices could not supersede their order. R. v. Middlesex, 11
A. & E. 809 ; 3 P. & D. 459 ; R. v. Brighthelmstone, 3 Q. B.
342 ; 2 G. & D. 88 ; and see R. v. Norfolk, 5 B. & Aid. 484.

By 11 & 12 Vict. c. 31, s. 8, it is enacted, that in any
case in which an order shall have been made for the removal
of any poor person, and a copy or counterpart thereof sent
as by law required, it shall and may be lawful for the over-
seers or guardians of the parish who shall have obtained
such order of removal, whether any notice of appeal against
such order shall or shall not have been given, and whether
any appeal shall have been entered or not, to abandon such
order by notice in writing, under the hands {a) of such over-
seers or guardians, or any three or more of such guardians,
to be sent by post (6), delivered to the overseers or guar-

(a) See R. v. Worcester Re-
corder, 5 Q. B. 508, n, (a) to R. v.
JSurrei/, ib. 506.

(J) See R. V. Slawstone, 18
Q. B. 388; 21 L. J. M. C. lio ;
R. v, Richmond, 27 ih. 197.

APPRENTICE. 467

dians(a), as aforesaid, of the parish to which such person is by
the said order directed to be removed, and thereupon the
said order, and all proceedings consequent thereon, shall
become and be null and void to all intents and purposes, as
if the same had not been made, and shall not in any way be
given in evidence in case any other order of removal of the
same person shall be obtained. And it is provided that in
all cases of such abandonment the overseers or guardians of
the parish so abandoning shall pay to the overseers or guar-
dians of the parish to which such person is by the order
directed to be removed, the costs which such overseers or
guardians shall have incurred by reason of such order, and
of all subsequent proceedings thereon ; and such costs are to
be taxed by the officer of the court ; and will be recoverable
as penalties and forfeitures within ten days after demand,
under 4 & 5 Will. 4, c. 76 ; see also 11 & 12 Vict. c. 43, s. 27
(Jervis' Act), and 12 & 13 Vict. c. 45, ss. 5, 6 (Baines' Act).

The effect of the notice of abandonment is to take away EiTect of
all j urisdiction to hear and determine the matter of appeal notice of
by the quarter sessions : R. v. aS'^. Michael, Pembroke, 21 L. J. iil^amlon-
M. C. 79 ; see R. v. Shrewsbury (fc Hereford Railway Co., 25 "'*'''''•
L. T. 65. Although the sessions have no jurisdiction over
the merits of the settlement, they may enter the appearance
for the purpose of ordering the payment of the costs. R. v.
Townstall and R. v. Staley, 1 Q. B. 876; 12 L. J. M. C. 72.
Ex p. Poritefract, 3 Q. B. 391 ; R. v. Norfolk, 5 B. (k Aid.
484.

Apprentice.

Reference is made to tit. " Apprentice," as to the posi- Settlement
tion of the apprentice in general, and the character of the ^y appreu-
indentures required. So also as regards the parish ap- *^*^®'*^^P-
prentice.

Settlement by apprenticeship has its origin from 3 & 4 Origin of
Will. <fe Mary, c. 11, s. 8, enacting that "if any person shall ^^^^^^^*^^^,^"
be bound an apprentice by indenture, and inhabit in any town apprentice-
or parish, such binding and inhabitation shall be adjudged a ship,
good settlement."

This was the earliest personal settlement which could be
acquired.

(rt) The notices may now be or left at his office, or sent by

sigiiei by the clerk to the guar- post addressed to him at such

dians in their name ; and will be office : see R. v. Shrervshiwy lie-

duly serve 1 on the guardians if carder, 1 E. & B. 711, 720; 22

delivered to their clerk personally, L. J. M. C. 98.

468

REMOVAL AND SETTLEMENT OF THE POOR.

The forty
days' resi-
dence.

As an
ajiprentice.

Not by in-
diil^ience.

"When with

another

master.

Effect of
the 39 (t
40 Vict. c.
61, and
residence
under it.

Under 5 Eliz. c. 4, ss. 26, 31, 41, the sei-vice must be for
seven years; the forty days' residence arises by inference from
13 & 14 Car. 2, c. 14, making settlements depend on residence.
But the required inhabitancy of forty days need not be within
the space of any one year. R. v. Ilhestone, 4 B. & C. 64 ;
7?. V. Somerhy, 9 A. & E. 310 ; ^. v. Banbury, 3 B. & Ad.
706.

The residence must, however, have reference to the ap-
prenticeship : R. V. LinkenJiorne, 3 B. & Ad. 413 ; in which
Lord Tenterden said : " It will be sufficient if the residence
be in pursuance of the contract of apprenticeship, and in a
place where, but for that contract, it would not have been."
And in R. v. Ilkestone, 4 B. & C. 64, his lordship said : *' The
habitation must be in the character of an apprentice, and in
some way or other in furtherance of the apprenticeship."
See these cases collected ante, " Apprentice." It is in the
parish where the apprentice may sleep and complete his last
fortieth night that the settlement will be acquired. See
ante, p. 159 ; St. John v. ISt. James, 1 Str. 594 ; R, v.
BAghthelmstone, 5 T. R. 188 ; R. v. Charles, Burr. S. C. 707 ;
R. V. Burton upon Irwell, 32 L. J. M. C. 102, anie, p. 160.

A residence by indulgence, where no service is performed,
as when the apprentice went into another parish on account
of illness, would not confer the settlement. R. v. Ribchester,
2 M. & S. 135 ; R. v. Barnesley, 7 East, 381 ; ii?. v. llkestone,
4 B. & C. 64 ; R. v. St. Mary, Bredin, 2 B. & Aid. 382.

If any part of the service is with some person other than
the master, it must be with the master's express consent :
R. V. Lydiard St. Lawrence, 11 Ad. & El. 616.

It will be seen, however, that the three years' settlement
by residence, to be acquired under 39 & 40 Vict. c. 61,
s. 34, will very materially affect the settlements by appren-
ticeship, many an apprentice gaining his settlement under
that Act.

The birth
settlement.

Removals,
birth
settle-
ments.

Birth.

(See ante, " Evidence," pp. 223-4.)

The place of birth is primd facie the place of settlement.
R. V. Heaton Norris, 6 T. R 653 ; that is, until some subse-
quent and acquired settlement is shown to exist. R. v. JVew-
church, 32 L. J. M. C. 19. See ante, 11 Hen. 7, p. 453.

In Spitaljields v. St. Andrew's, Holhorn, Fort. 307, it was
said, " Birth makes a good settlement, and the labour lies
on them where the child was barn to find another." This

BIRTH. ' 469

primitive axiom in settlement law has, since 11 & 12 Vict,
c. 31, been freely acted on in general practice. The officers
of a removing parish or union frequently carry their investi-
gations no further than to inquire of the pauper where he
was born, leaving all subsequent labour of finding the last
legal settlement on the parish to which the pauper may be
removed. This is, undoubtedly a practice exceedingly in-
convenient and most burthensome to parishes in which such
a birth is alleged by the pauper to have taken place.

In many of these cases the justices act solely on the affi- Orders
davit or statement of the clerk to the guardians (without made on
any corroboration, such as that required to support the hearsay
pauper's own evidence under 39 & 40 Vict. c. 61, s. 34, ^^i^^^^ce.
supra), that he had been " informed and believed " that the
pauper was born in a certain parish, and to which the
pauper's removal is asked for ; and such an order is then
made, — the justices failing to examine the pauper touching
any other legal settlement, should he have one, thereby
causing much litigation and experse, which 11 & 12 Vict,
c. 31, was passed expressly to avoid.

In a case in Comberbach, 478, Lord Holt, C. J., is re- Duty of
ported to have spoken to the effect that, "if a pauper could justices to
it is fit he should, but it is not absolutely necessary he should, examine
be examined." So also Lord Ellenborough, C. J., on 35 ^^^1
Geo. 3, c. 101, s. 2. See B. v. Bverdon, 9 East, 101 ; and fsto'^ ^
see also 49 Geo. 3, c. 124, s. 4, authorising a single justice the settle-
to take the examination of an aged and infirm pauper un- i^ent.
able to attend the sessions, and to report bis testimony to
the Bench. See also E. v. IVi/kes, Andr. 238; 2 Bott. 819.

The 11 & 12 Vict. c. 31, ss. 1 — 3, although passed for the Examina-
excellent object of stopping the technical objections which tions since
were raised ae^ainst the examinations, was never intended to }}. ^ •^^„,

• • Viol" o 1 1

give rise to rash or speculative removals, or to relieve the
justices from due performance of their judicial duties in
making the orders of removal otherwise than upon strictly
legal evidence, as theretofore, concerning the actual and last
legal settlement of the pauper.

Such hearsay evidence is clearly illegal, and in any other Inadmiesi-
court would be inadmissible. It should never be admitted l^i^ity of
and still less acted on. But in such a matter the justices ^^ff^^y
are "masters of the situation" since the 11 & 12 Vict. c. 31. ^^ ^^^^.^^ ^
And, however erroneously the justices may act in the recep- settle-
tion of such evidence, or rather statements in lieu of^ents.
evidence, it being a matter within their "discretion," no ^^^^ P*
writ of certiorari will avail to correct the mischief. See

470

REMOVAL AND SETTLEMENT OF THE POOR.

Declara-
tions of
parents not
evidence,
R. V.
Erith.

Distinction
between
what is
evidence of
pedigree,
and place
of birth.

Monkton
V. The
Atty.-
General.

Hood V.
Lady
Beau-
cluimp.

Principles
stated by
Lord Ellen-
borough,
C J., of
objections
to hearsay
evidence.

Further
objections.

R. V. Middx. JJ. {Slade's ca.) 2 Q. B. D. 516 ; 46 L. J. M. C.
225; 36 L. T. 402; 25 W. R. 510; R. v. Ke7it JJ., 41
J. P. 263. The only remedy is by appeal to the sessions.

As regards the evidence for proof of the birth of the pauper
in a particular place, even the declaration of the father or
mother as to the place of their own child's birth would not be
evidence. R. v. Erith, 8 East, 539 ; and this case was upheld
by Lord Brougham in Monkton y. The Attorney-General, 2Russ.
and Myl. 147, 159, where the distinction is drawn between
what is evidence of a pedigree, and what may be evidence
of a " detail " in the case. See Hubback on Succession, 468,
where Hood v. Lady Beauchamp, 8 Sim. 26, is referred to,
and in which case Shadwell, V. C, admitted a statement
that A. B. was his grandfather, and resided at, &c. ; but
that was on a question of pedigree and reputation. The
simple hearsay declaration of the place of residence, though
aliunde shown to be made by a relative of the declarant,
would not be received in evidence. In Whittuck v. Waters,
4 C. & P. 376, Parke, J., rejected hearsay evidence of the
death of a cestui que trust, upon the ground that it was not
a question of pedigree. So in R. v. Chadderton, 2 East, 27,
the pauper stated "he had heard from his mother" who was
dead, " that she had been relieved by Chadderton parish."
Lord Kenyon, C J., said, " The hearsay of the pauper's
mother is no evidence." See also R. v. Rishworth, 2 Q. B.
476, 483, 485, 487 ; R. v. Yelverton, 6 Q. B. 801 ; R. v.
Eccles Bierlow, 11 A. & E. 607.

In R. V. Erith (supra). Lord EUenborough, C. J., stated
the principle of the non-admissibility of the pauper's hearsay
evidence of the place of his birth ; premising, that the only
doubt which had been introduced into the case arose from
improperly considering the question oi place of settlement as
one of pedigree. " The question was not," said the C. J.,
"as in the case of pedigree, from what parents the child
derived his birth, but in ivhat place an undisputed hirth,
derived from known and acknowledged parents, had happened.
The point thus stated turns on a single fact, involving no
question hut that of locality, and therefore not governed by
rules applicable to cases of pedigree, and is to be proved, there-
fore, as other facts generally are proved, according to the
ordinary course of the common law, that is, by evidence to
which the objection of hearsay does not apply." Another
objection to the admission of the "hearsay" evidence),
although made in articulo mortis, is, that the question in-
volved in the settlement is one of law^ as well as fact. See

BIRTH. 471

2 Starkie on Eyid. 369 ; 3 ib. 24, 835. Phill. on Evid. 229,
6 ed. ; Taylor on Evid. 549, 7th ed. ; R. v. Ferry Frystone, 2
East, 55 ; R. v. Abergwilly, ib. 63. On this point in Burn's
Justice of the Peace, tit. " Poor," 331 ; R. v. Birmingham and
R. V. Aston, 8 L. J. M. C. 41 {a), are cited for the statement,
smipliciter, that " the declaration of a deceased mother as to
the time of birth is admissible in evidence upon a question
as to the place of birth of the child, though the father be
living." From the previous cases qu(jted this seems to be
not strictly accurate as to the evidence of the place of the
settlement ; the question in the. Birmingham-Aston case was
one of pedigree only, and not of settlement, and hence the
distinction; wherefore the ruling in R. v. Erith is not in any
degree interfered with, but rather confirmed. See also the
remarks on R. v. Birmingham and Aston in Hubback on Succ.
660 ; 1 Tay. Evid. 545, 7th ed. (6).

The evidence which should be before the justices as to the Evidence
place of the pauper's birth is that of either of the parents : on which
Ooodright v. Moss, Cowp. 591 ; or that of some person who ^^^^!^
saw the mother in the parish just before and immediately g|,oui(j ^e
after the event of the birth of the pauper, and saw the oft- made,
spring, together with evidence of identity : R. v. Petherton,
5 B. (fe C. 508 ; R. v. Trowbridge, 1 Man. & R. 7 ; 7 B. & C.
252 ; R. V. 8t. Mary, Leicester, 3 A. & E. 644 ; R. v.
Crediton, 27 L. J. M. C. 265 ; R. v. Creech, Burr. 765 ; R.
V. Buckelbury, 1 T. R. 164. The copy of a parish register
containing the entry of the pauper's baptism, combined with
general evidence of identity, may be sufiScient : Creech St.
Michael v. Pitminster, Burr. S. C. 765 ; 2 Bott, 28. But
the register of baptism alone will not be sufficient. R. v.
North Petherton, 5 B. & C. 508 ; 2 D. & R. 325 ; R. v.
ClapUam, 4 C. & P. 29 ; Walker v. Beauchamp, 6 C. & P.
552 : R. V. Lubbenham, 5 B. & Ad. 968.

So in one case the evidence was proof of the father and
mother's marriage in Crediton parish in 1779, with evi-
dence of the baptism of one child in 1780, and of two
other children in 1782 and 1790, with the evidence also of
the last child, that her first recollection was that of living
with her parents in Crediton when the first child (the
pauper) was about ten years older than herself, and was then

(ii) Referred to in Bum's Just., persons admissible in proof of

as of 9 B. & C. 925, and 4 M. & particulars as to settlements, but

W. 691 erroneously. which failed. See Tay. Evid.

(Ji) There was a long struggle 549 (n,) 7th ed.
to make declarations of deceased

472 REMOVAL AND SETTLEMENT OF THE POOR.

living with his parents : this was held to be sufficient
evidence of a birth settlement : B. v. Crediton, 27 L. J. M. C.
265; 1 E. B. & E. 231.

By Certificate.

A poor person being liable to be removed within forty
days from a parish into which he had come to inhabit, had
the effect of preventing poor persons from going out of their
own parish to obtain work, and they thereby more readily
became a burthen on the poor-rates {a). The 8 & 9 Will.
3, c. 30, s. 1, authorised the parish officers to acknowledge
any person as being settled in their parish by certificate,
allowed by two justices, attested by two witnesses, and
directed to the churcjhwardens and overseers of some other
parish : upon delivering such certificate to the officers of the
other parish, the poor person would be irremovable there-
from until actual chargeability. These certificates were
common until 35 Geo. 2, c. 101, made actual chargeability
the cause for the removal in lieu of the pauper being
" likely to become chargeable."

These certificates were admissions, by the certifying
parish, that those named therein were settled in such parish j
and this was a binding acknowledgment as between the two
parishes, and the certificate was evidence of the settlement.

The custom of granting these certificates has long ceased j
and in practice they are now but seldom, if ever, met with.
They could only arise on some remote derivative settlement,
and as that class has been abolished by the 39 & 40 Vict. c.
61, s. 35, the subject need not here be further treated of; but
reference, if the occasion should require, for the law on ac-
knowledgment by certificates, is made to VoL 4, Burn's
Justice, tit. "Poor."

By De7'ivative Settlement.

Derivative ^ most material alteration very considerably simplifying
settle- the law of settlements has been made on the passing " The
ments Divided Parishes and Poor Law Amendment Act, 1876,"

abolished. 39 ^fc 40 Vict, c 61, which by s. 35, enacts that " no person
shall be deemed to have derived a settlement from any other

(a^ Under 13 & 14 Car. 2, c. 12, lion in his parish ; and on ne-

8. 3, when a poor person left his gleet, when his work was over,

parish for harvest or other work, to return to such parish, he was

he was bound to caiTy with him under pains and penalties as a

a certificate that he had a habita- vagabond

I

DERIVATIVE SETTLEMENT. 473

person, whether by parentage, estate, or otherwise, except in Exceptions,
the case of a wife from her husband, and in the case of a
child under the age of sixteen, which child shall take the
settlement of its father, or of its widowed mother, as the case
may be, up to that age, and shall retain the settlement so
taken until it shall acquire another."

" An illegitimate child shall retain the settlement of its
mother until such child acquires another settlement."
See R. V. Leeds, infra, " Settlement by Residence."

" If any child in this section mentioned shall not have
acquired a settlement for itself, or being a female shall not
have derived a settlement from her husband, and it cannot
be shown what settlement such child or female derived
from the parent without inquiring into the derivative settle-
ment of such parent, such child or female shall be deemed to
be settled in the parish in which he or she was born."

Full effect will be given to this section, inasmuch as it will Section
be read retrospectively as well as prospectively, both in the retrospec-
enacting part and in the exceptions. But it is, however, not ^^^'
retrospective so as to affect the settlement of a pauper who
had acquired a birth settlement by attaining the age of six-
teen before the passing of the Act ; in which case the pauper
was illegitimate : Westbury-on-Severn v. Barrow-in-Furness, 3
Ex. D. 88 ; 47 L. J. M. C. 79 ; 38 L. T. 315, S. P. ; Tenterden
V. A^^. Mary, Islington, 47 L. J. M. C. 81 ; 38 L. T. 485,
C. P. D. See also Barton Regis y. Liverpool, 47 L. J. M. C. 62 ;

3 Q. B. D. 295 ; 37 L. T. 713, where there was a pending
order at the time the Act was passed. (See sections 35 & 36.)

Children derive no settlement from the mother by her Marriage
second marriage. See Keynsham v. Bedminster, and cases *^^ *'*®
cited «j^ra, under " Settlement by Parentage." Nor in the ^^ ^'.
case of an illegitimate child does it take the mother's settle- cliano-e
ment acquired by marriage : Manchester v. St. Pancras, child's

4 Q. B. D. 409 ; 41 L. T. 218 ; 27 W. R. 884. In Woodstock settlement.
V. St. Pancras, 4 Q. B. D. 1 ; 48 L. J. M. C. 1 ; 39 L. T.

256 ; 27 W. R. 229, S. C. ; R. v. St. Pancras, Field, J., put
the test — " Would the settlement have to be inquired into
and ascertained ? — this is the very thing which the Legisla-
ture has said shall not be done."

Under the exceptions, — " except in the case of a wife Settlement
from her husband ; " and " if a female, shall not have of wife.
derived a settlement from her husband," she is to take her
birth settlement, it was held in Great Yarmouth v. London,
Clerk of the Peace, 47 L. J. M. C. 61 ; 3 Q. B. D. 232 ; 37
L. T. 712 ; 23 W. R. 283, that, where the husband of a

474

REMOVAL AND SETTLEMENT OF THE POOR.

39 &40
Vict. c. 6L

Former
emancipa-
tion.

Present
emancipa-
tion.

Definition
by Abbott,
C. J., of
ceasing to
be under
the control
ot' the
parents.

Now actual
settlement
may be
acquired
by a child.

criminal lunatic pauper had derived his settlement from his
father in Gorleston, whither he had gone a few weeks after
his birth to reside with his father's family, and he had no
other settlement, nor had his wife any in her own right, the
case was within the exception, and that an order of settle-
ment was rightly made on the derivative settlement of the
husband in Gorleston.

The 35th sec. 39 & 40 Vict. c. 61, contemplates the
" emancipation " of the child, that is, the gaining a settlement
of its own. The right of the children to take the parent's
settlement is at an end by obtaining a settlement of their
own. B. V. Bleashy, 3 B. & A. 377 ; ^. v. Hardwicke, 5 B.
& Aid. 176 ; R. v. Offchurch, 3 T. R. 114 ; i?. v. Roach, 6
T. R. 247. See also li. v. Leeds, ante, p. 46K

Marriage : R. v. Everton, 1 East, 526 ; or the living away
from the parents : R. v. Uckjield, 5 M. & S. 214 ; or
remaining absent at, and after attaining twenty-one, might
have formerly emancipated the child, although such absence
was by compulsion. R. v. Hardwicke (sup.) ; R. v. Lawford,
8 B. ik C. 271 ; see also R. v. Scammonden, 8 Q. B. 349 ;
15 L. J. M. C. 30.

The words of sec. 35 (above referred to) are, " that the
child shall take the settlement of its father or of its widowed
mother, as the case may be, up to the age of sixteen, and shall
retain the settlement so taken until it shall acquire another."

Formerly, in the words of Abbott, C. J., in R. v. Wil-
mington, 5 B. & Aid. 525, the emancipation was gained by
the pauper entering upon " a contract so as wholly and
permanently to exclude the parental control." This will not
be the present reading of the section ; to gain emancipation
another settlement must be " acquired.^' And which settle-
ment may even be acquired by a mere infant (under sec. 34)
(see R. V. Leeds, sup.) where, by the act of the parent all
idea of the continuance of any further '' parental control "
over the child is excluded ; in fact, where the child has
become " deserted," and an independent " residence " has
acquired a settlement : see infra, R. v. Leeds, " Settlement
by Residence."

Founded
on Magna
Charta.

£i/ Possession of Estate.

No statute expressly creates any settlement by estate,
unless the term " sojourner, ^^ as pointed out by Lee, 0. J.,
in R. V. St. Nyotts, Burr. S. C. 132, apply. But Lord Ellen-
borough, C. J., in R. V. Holm East Waver Quarter, 16 East,

POSSESSION OF ESTATE. 475

127, remarked : " This species of settlement does not depend
upon any term in a statute ; but it is an excepted case in
the law, standing upon the rule that a man shall not be
removed from his own." This right to reside on a man's
own estate is founded on Magna Charta, which enacts that
no man shall be disseised of his freehold.

In R V. Off church, 3 T. R. 114, Lord Kenyon, C. J., Right re-
stated, that it was Lord Macclesfield who first held that as ^tricted by
a man could not be disseised of his freehold, he was irre- ^ ^ ' '
movable from it ; and residing forty days on an estate of
his own, irremovable, and gaining a settlement, were synony-
mous terms. "But that," said Lord Kenyon, "did not hold
in all cases ; for, by 9 Geo. 1, c. 7, a purchaser of an estate
for less than £30 shall not acquire a settlement for any
longer time than he resides upon it."

A residence of forty days on an estate, under a claim of Estate by
right, although the taking possession had been in fact possession.
wrongful, but in which case there is an absence of fraud,
and where the pauper is unconscious at the time that he is
taking the possession wrongfully, and where the person
entitled to the possession fails to take prompt measures to
displace him, the settlement will be acquired. See R. v.
Staplegrove, 2 B. & Aid. 527.

The pauper lived in a cottage, which came to him by
descent, but which cottage the pauper's father had built
upon " a waste," without the lord's consent ; this gave a settle-
ment. It was not for the justices of the peace to determine
the man's title : Ashbrittle v. Wyley, Stra. 608 ; S. C. R. v.
Wyley, 2 Sess. Gas. 115 ; 2 Bott, 610. The same strictness
of proof is not required to ascertain the title to an estate
in cases of settlement as would be necessary to support an
ejectment ; Wilmot, J., R. v. Cold Ashton, Burr. S. G. 444 ; R.
V. Butterton, 6 T. R. 554 ; see R. v. Cheiv-Magna, 10 B. & G.
747; Doe d. Wilkins v. Marquis of Cleveland, 9 B. & G. 864.

By 9 Geo. 1, c. 7, s. 5, no person will be settled in any By pur-
parish by virtue of any purchase of an estate whereof the chase,
consideration money for such purchase does not amount to
£30 bond Jide paid, for any longer time than such person
inhabit in such estate, and will then be liable to be removed
to the parish where last legally settled before such purchase
and inhabitancy.

The word " purchase " is not to be taken in its largest
extent, but is confined to cases of pecuniary consideration :
R. V. Marwood, Burr. S. G. 386; 2 Bott. 615; Doe v. Mey-
rick, 3 Tyrw. 916; R. v. Great Driffield, 8 B. & G. 684,

476

REMOVAL AND SETTLEMENT OF THE POOR.

The con-
sideration
money.

Expendi-
ture on

and remarks there made in Burclear v. Eastwoodhay^
1 Stra. 163. The coming to an estate by devise or gift, or
settlement on marriage, is not in this sense the taking an
estate " by purchase,'' requiring the " consideration :" id.^
and S. P. R. v. Ingleton, Buit. S. C. 560; 2 Bott. 621.
So where the consideration is natural love and affection,
and £10 : R. v. Ufton, 3 T. R. 251. So on a surrender
of leases the lord makes a gi'ant of the same premises on
a nominal fine and rent : R. v. Lydlinch, 4 B. & Ad. 150 ;
see also R. v. Hatfield Broad Oak, 3 B. & Ad. 566. But a
grant which is not voluntary^ is a " purchase " requiring the
jB30 consideration : R. v. Warhlington, 1 T. R. 241 ; R. v.
Homchurch, 2 B. & A. 189 ; see also Wendron v. StithianSf

4 E. & B. 147 ; 24 L. J. M. C. I ; R. v. Hagworthingham,

1 B. & C. 634; 3 D. & R. 16.

If, however, the purchase-money be under .£30, should
the owner reside on his estate, he will be irremovable :
R. V. Martley, 5 East, 40. On his residence there for one
year the irremovability would ensue under 28 & 29 Vict.
0. 79, s. 8 (infra), with an absolute settlement on his resi-
dence for three years : 39 & 40 Vict. c. 61, s. 34.

The consideration money must, bond fide, amount to <£30
paid.

Other considerations than those stated on the deed may
be proved. The money actually paid is the true con-
sideration ; so where the sum paid by the purchaser bond
fide was <£30, but the deed, and receipt endorsed, only
expressed it as £28, parol evidence was held to be
admissible to prove other considerations than those on the
deed : R. v. Scammonden, 3 T. R. 474 ; see also R. v.
Llangannor, 2 B. & Ad. 616 ; ^. v. Skefiiington, 3 B. & Aid.
382 ; R. V. WickJmm, 2 A. & E. 567 ; R. v. Great Wakering,

5 B. & Ad. 971.

The fine to the lord may be combined with the money
paid to the vendor of copyhold land to form the full con-
sideration : R. v. Cottingham, 7 B. & C. 603.

It is immaterial whether the purchaser provides the money,
or borrows it on credit : R. v. Chailey, 6 T. R. 755 ; or that
the amount is a debt due from the vendor : R. v. Stackland,
Burr. S. C. 169 ; or mortgages the estate to raise the
money. The criterion is that the full £30 is paid to the
vendor : R. v. Tedford, Burr. S. C. 57 ; see R. v. Mattingley,

2 T. R. 12 ; R. v. Olney, 1 M. & S. 387.

The laying out money on the improvement in value of
the estate after a purchase of property for which less than

POSSESSION OF ESTATE, 477

£30 was paid will not gain a settlement : B. v. Dunchurch, estate after
Burr. S. C. 553; 1 Bla. Rep. 596. But where the vendor P''^^^^'^®-
agreed to build a house according to specifications on the
land, at an annual rent-charge, on a lease for three lives of
255., and the building cost .£85, and the house being built
the lease was granted ; this was held to be a bond fide pay-
ment of a consideration of £30 for the purchase and the
settlement gained : R. v. Belford, 32 L. J. M. C. 156 ; 3
B. k S. 662 ; see also R. v. Stanfield, Burr. S. C. 205.

To confer the settlement by estate the party must have A legal or
either a legal or an equitable title to an interest in posses- equitable .
sion: R. v. South Lynn, 5 T. R. 664; R. v. Chailey, 6 id. ^''^^^'
755; R. V. St. Mary, 21 L. J. M. C. 106. It need not be
beneficial : R. v. Stone, 6 id. 295 ; R. v. Adackhy, 5 A. & E.
200 ; 6 N. & M. 582. Executors, administrators, and next-
of-kin may gain the settlement : R. v. Sundrish, 1 Sess. Ca.
200 ; 2 Stra. 983 ; R. v. Horsley, 8 East, 405 ; in R. v. Can-
ford Magna, 6 M. & S. 355, the widow, her daughter and
son-in-law, occupied a leasehold house of the deceased hus-
band's for more than thirty years, but no administration was
taken out ; no settlement was gained : and the same point
was decided in R. v. Oheford Fitzpaine, 1 B. & Ad. 254; and
see also R. v. Berkswell, 1 B. & C. 542 ; 3 D. & R. 9.

A mortgagor in possession may acquire the settlement : R. Mortgagor
V. St. Michael's, Bath, Doug. 630 ; the living on mortgaged i^ posses-
premises must be as owner in possession, and not, for in- ^^°"*
stance, for the purpose of overlooking some repairs : R. v.
Catherington, 3 T. R. 771 ; a fraudulent possession will
vitiate the settlement : R. v. Edington, 1 East, 288.

A guardian in socage residing on his ward's estate for Guardians,
forty days gains the settlement. " The only difference,"
said Lord Ellenborough, " between the cases of an executor
or administrator and of a guardian in socage is, that the one
is accountable for the profits by statute, and the other at
common law." The law considers a guardian in socage as
entitled to the possession of a ward's property, and incapable
of being removed from it by any person; such a guardian has
not the mere office or authority, but an interest in the
ward's estate : R. v. Oakley, 10 East, 491 ; see also Wade v.
Baker, 1 Lord Raym. 131.

The father, as the natural guardian of his child who comes
to an estate by devise and not by descent, is not a guardian
in socage and gains no settlement, having no interest in the
land : R. v. Sherrington, 3 B. & Ad. 714. It may be
otherwise as to copyhold where there exists no custom of

478

REMOVAL AND SETTLEMENT OF THE POOR.

Equitable
interest
in the
purchased
estate.

Trustee
and cestui
que trust.

the manor for appointing a guardian : R. v. Wilhy, 2 M.
k S. 504.

There can be no guardian in socage of an equitable estate ;
there can be no such guardian except where the heir
takes by descent: Holroyd, J.,- B. v. Toddington, 1 B. &
Aid. 560.

Though an equitable estate is sufficient to confer a settle-
ment, a questionable right to go to the court to enforce that
right is not : see Coleridge, J., in R. v. St. Margaret, Leicester,
2 Q. B. 559. There must either be an estate or interest
purchased, that is, a definite interest for which the party
contracts at the time of making the contract, and one which
a court of equity would put the person claiming it into
complete possession of, and protect him against any attempts
to disturb his enjoyment of it. A cestui que trust has a suffi-
cient interest in the land to gain a settlement ; but there
may be a distinction between an equitable estate and a mere
equitable right (see Holroyd, J., R. v. Toddington, 1 B. &
Aid. 560), in the case of constructive trusts a settlement is
not gained. So where a proposed purchaser is let into pos-
session of an estate upon consideration of payments to be
made by instalments ; but on failure of the payments the
contract was rescinded, this was not such a possession under an
equitable interest as to gain the settlement: R. v. Geddington,
2 B. it C. 29 ; 3 D. & R. 403 ; see Bayley, J., in R. v. Horn-
den-on-the-Uill, 4 M. & S. 562 ; R. v. Long Bennington, 6
M. & S. 408; R. v. Woolpit, 2 D. & R. (Mag. Ca.) 272; 4
D. & R. 456, and cases cited in full in 4 Burns' Jus. Peace,
"Poor," 621—626.

The questions whether a trustee or a cestui que trust gains
a settlement are, is there any beneficial interest, and
whether there is an equitable estate. This class of estate is
not like that by purchase under 9 Geo. 1, c. 7, s. 5 ; but if
an estate coming to the pauper by operation of law, so the
devisee of an equity of redemption has such an estate as will
confer a settlement by residence of forty days in the parish :
R. V. Aslackby, 5 A. & E. 200 ; 6 N. & M. 582 ; R. v. Rat-
cliffe, 9 Mod. 167; R. v. JSfatland, Burr. S. C. 793; R. v.
Wivelingham, confirming R. v. Natland, 2 Dougl. 767.

Where a testator has devised freehold for sale within six
months after his wife's death, and to be thei) equally divided
amongst his children ; one of the co-heiresses resided on the
devised property for more than forty days after the wife's
death. Both a legal and equitable title was in the co-heiress,
with a right to reside on the estate until the trustees

POSSESSION OF ESTATE. 479

executed their trust for sale, and she gained a settlement :
R V. Burgate, 23 L. J. M. C. 143.

A schoolmaster, by his appointment under the terms of a
will, may have such a use and occupation of a school-house
and premises rent free, and with a salary, as to give him a
title in the premises, as coming into them not by purchase,
as under 9 Geo. 1, c. 7 ; nor by renting, under 13 & 14
Car. 2, c. 12 ; but in the character of a cestui que trust, resid-
ing upon what was, for the time, substantially his own.

An executor or administrator may acquire a settlement by Executors
residing the forty days upon household propertv. R. v. ^".d.^^"
Sundrish, 1 Sess. Ca. 200 ; 2 Stra. 983 ; and R. v. Wid- ZT
ivorthy, Andr. i; Burr. S. C. 109; 2 Bott. 612. Where
Probyn, J., states the general rule as being well established,
" that if a pauper come to an estate by inheritance, or as
executor or administrator, be it of ever so small a value, he
is irremovable ; and if he remain forty days in possession
and inhabitancy, he gains a settlement." And the value
is immaterial : R. v. Uttoxeter, Burr. S. C. 538 ; 2 Bott.
620. An executor whose estate is under £10 a year rental
may gain a settlement : R. v. Stone, 6 T. R. 295 ; and there
is no distinction between a tenancy from year to year and a
tenancy for a term of years ; each are entitled to estovers,
ib. : and see R. v. Painswicke, Burr. S. C. 783 ; 2 Bott. 627 ;
R. V. Long Whittenham, 4 Doug. 193, where the right to
reside and take estovers is called " the right of quarantine.''^

But the administration must have been taken out during:
the existence of the term, and also befoi^ the order of re-
moval has been made, for at such time of the making the
order the pauper would have gained no settlement, because
nothing could vest in him before administration had been
granted. And if the order was good when made, itxjould not
be quashed on matter happening ex post facto. R. v. Wid-
worthy (supra); see R. v. Wyley, 2 Sess. Ca. 115; 1 Stra.
908; 2 Bott. 610; R. v. Borsley, 8 East, 405.

An administration to a tenancy at will is not sufficient ;
see R. V. Widivorthy, supra.

A settlement is not gained by a next of kin of a lessee
without administration. R. v. Horsley, sup, ; South Syden-
ham V. Lamerton, 1 Stra. 57.

The mere right to dower without any assignment is not Under
sufficient to confer a settlement ; but it was said, as she would dower,
be entitled to remain forty days (a) and to have estovers

(fl) Or, as expressed in B. v. she acquired her settlement in
Long Wliittejiham, 4 Doug. 193, right of her " quarantine,' a

480

REMOVAL AND SETTLEMENT OF THE POOR.

Dower.

Estate in
remainder
or rever-
sion.

By right
of the
wife's
estate.

under Magna Charta, she might by residence for that time
have a claim for the settlement in the parish : B. v. Pains-
wicke (supra) ; Co. Litt. 393; 2 Bl. Com. 132; Gilb. Ten.
26 ; Gilb. Uses, 356 ; Doe v. ^utt, 2 C. & P. 430 ; see 3 & 4
Will. 4, c. 105. The widow acquires an estate of freehold
by the assignment, without livery of seisin, because the
dower is one of common right. 1 Inst. 35 a. ; Boive v.
Fower, 2 N. R 1.

Nor before assignment of dower has the widow such an
interest in the land that she is irremovable from the parish
in which the land lies. B. v. Noy^tkweald Bassett^ 2 B. & C.
724 ; 4 D. & R. 276.

The wife is entitled to her dower of all real hereditaments,
whether corporeal or incorporeal, unless there be some
special custom to the contrary, and of all liberties and profits
savouring of the realty wherein the husband is seised : Co.
Litt. 32 a. ; 1 Inst. 40 a. ; Litt. s. 53 ; Cro. Eliz. 280, and
out of which estates the dower may spring. See note (2)
4 Petersdorff's Abr. " Dower," 133.

In a case where it is necessary for the widow to take out
letters of administration, see B. v. Barnard Castle, 2 Ad. k
Ell. 108 ; 4 Nev. & M. 128.

To gain a settlement the possession by the pauper must be
of an immediate estate, and not of one in which he has only
an expectant interest on the termination of some existing
interest ; an estate of which he may be disseised : B. y.
Bingstead, 9 B. & C. 218 ; 4 M. & R. 67 ; i?. v. Eatington,
4 T. R. 177 ; B. v. Willoughhy-with-Sloothby, 10 B. & C. 62 ;
3 M. & R. 32.

It was held that a settlement was gained when the owner,
who had become entitled to the estate as heir, had let the
property, but had undertaken to sink a well on it, and for
that purpose resided on the premises for over forty days as a
lodger : B. v. Houghton-le-Spring, 1 East, 247 ; see B. v.
Catlierington, 3 T. R. 771. But a mortgagor living on the
premises mortgaged, but not in possession as owner, and
only for the purpose of overlooking certain repairs, was in
that instance held to gain no settlement.

A husband may acquire his settlement by living on the
estate which his wife has to her own use and benefit. The
wife has the right to reside on her property, and to commu-

period of time which originally child birth allowed by the Nor-

consisted of forty days. One man customs." Drayton. Sel-

origin seems to have been " from den.
the forty days in the essoign of

POSSESSION OF ESTATE. 481

iiicate that right to her husband : R. v. Offchurch, 3 T. R.
114, So also may the husband of an administratrix gain a
settlement: Mursleyv. Gratidborough, 1 Stra. 97. Or where
the husband's residence is on property purchased by tiie
wife before marriage ; and such settlement is communicated
to the wife : R. v. Ilmington, Burr. S. C. 566 ; 1 Bl. Rep.
598. Also a man who marries a woman who is a yearly
tenant of premises, although at a less rent than £10 a year,
gains a settlement by estate by a forty days' residence : R.
V. North Amey, 3 B. & Ad. 463. See also R. v. Dorstone, 1
East, 296 ; i?. v. Ynyscynhaiarn, 7 B. & C. 233 ; 1 M. & R.
77 (M. C); See also where the w^oman is only a weekly
tenant : R. v. Thornton, 29 L. J. M. C. 162.

Where a woman is in possession of an estate after her hus-
band's death, and resides there, paying rent and taxes without
taking out administration, and marries, and with her husband
continues to pay rent for several years; it seems doubtful what
inference is to be drawn from this position. If she became
the tenant, her second husband would acquire the settle-
ment ; but if she occupied as the representative of her first
husband he would not. On the conclusion to be drawn, the
Court was evenly divided in their judgment : see R. v. Bar-
nard Castle, 2 Ad. & Ell. 108 ; 4 Nev. & M. 128.

Forty days' actual residence either on the estate or in the The resi-
parish where the estate may be, and whilst the interest in Jence on
the estate exists, is required to gain a settlement. But such ^ estate,
forty days need not be consecutive : R. v. Martley, 5 East,
40 ; Ryslip v. Harrow, 2 Salk. 524 ; 2 Bott. 673 ; R. v.
Sowton, Andr. 345 ; R. v. St. Nyotts, Burr. S. C. 132 ; 2
Bott. 676 ; Wookey v. Hinton Blewett, 1 Stra. 576 ; R. v.
W. Sheffield, Burr. S. C. 307 ; see also R. v. Knareshorough,
16 Q. B. 446 ; 20 L. J. M. 0. 147 (a).

The husband's residence cannot be made up by that of
the wife. The father, whilst alive, is the head of the fjimily,
and the children must take their settlement from him.
BerkhamsteadY. St. Mary Northchurch, 2 Sess. Ca. 182 ; 2 Bott.
51. See also R. v. Carshalton, 6 B. & C. 93 ; 9 D. & R. 132.

Lord Hardwicke, C. J., said in Berkhamstead v. St. Mary,
Northchiirch: "As to the case of foreigners or Scotchmen (6)

(«) Under the old law, when a arisen from the Acts of removal)

man came to a place, on the fii-st is a place of habitation : Harrow

day he was regarded as a stranger ; v. Edgware, Fol. 257; 2 Bott.

on the second as a guest ; and on 608, E. T. 11 Anne,
the third as an inhabitant ; and a (J) Irishmen maybe here in-

place of settlement (which is a eluded : see infra, p. 457.
more modern term, and has

482 REMOVAL AND SETTLEMENT OF THE POOR.

wlio have no settlements, they are singular cases, and the
wife gains a settlement through necessity ; but there never
was an instance where the wife was held to acquire a settle-
ment during the life of her husband ; the wife's inhabitancy
with her children is not that of her husband. Kfeme covert
cannot bv residence gain a settlement for her husband."
See i?. Y.\\IaidMone, 5 Q. B. D. 31 ; 49 L. J. M. C. 25 ; 28
W. R. 183, as to the wife's settlement where the husband
has deserted her.
By hiring The Poor Law Amendment Act, 1834, having abolished

and service the acquiring a settlement by hiring and service, and by
and oiiice. .. ^^^^ v .^f^^^. ^^^^ ^^^^ . ^^^ ^^^ 39 ^ ^q y|^^_ ^ q^^ ^ 34^

having abolished all derivative settlements, the persons who
could have retained a settlement of this class must now be
but seldom, if ever, met with; and, 'therefore, the reader is
referred, for the general law on those subjects, to the elabo-
rate work on "Poor," edited by Mr. J. E. Davis, being Vol. IV.
of Burn's Justice of the Peace, and in which every authority
has been most carefully collected.

Effect of Order not Appealed against.

Order must The order, however, to be binding, must have been made
be made within the jurisdiction of the justices who made it ; other-
withm -wise, although not appealed against, it will be totally void,

diction '^^^^ *^'^ jurisdiction should appear on the face of the order.
No distance of time will cure the defect or prevent an ob-
jection to it being raised ; there is a maxim that quod ah
initio non valet tractu temporis non convalescet. And an order
which was void at the time it was made, because made
Avithout jurisdiction, cannot become a valid order by lapse
of time. See Lord Kenvon, C. J., in R. v. Chilverscoton, 8
«(r. R. 178. In Ji. V. Stotford, 4 T. R. 596, the order was
voidable only on appeal, and would therefore be binding.
How far The facts stated in the order of removal are also conclu-

couclusive. sive as proof against the parish ; and so also the facts w^hich
form the necessary steps to the decision, but they must be
necessary steps or the rule fails and they become collateral
matter only. JR. v. Hartington, 4 E. & B. 901 ; 24 L. J. :\r.
C. 98. It is conclusive evidence of a marriage. R. v.
JS'orthfeatherton, 1 Sess. Ca. 154 ; Nympsfeldv. Woodchester, 2
Stra. 1172 ; i?. v. Silchester, Burr. S. 0. 551 ; R. v. St. Mart/,
Laviheth, 6 T. R. 615 ; describing a woman as a "widow,"
raising the presumption that she was removed to the place
where her husband was settled. Lawrence, J., R. v. Rugeley,

EFFECT OF CONFIRMING OR QUASHING AN APPEAL. 483

8 T. K. 620. And Le Blanc, J., said that i?. v. Sikhester and
R. V. St. Jfari/, Lambeth, show that an order unappealed
from is conchisive, thougli the party be removed under a
wrong addition ; for in both those cases the woman was
removed as 'Hhe wife," though in fact she was not the wife;
yet it was holden that the parties were prechided from dis-
puting the settlements gciined upon subsequent removals.
" The result " (said Le Blanc, J.) " of all the cases seems to be
this : an order of removal unappealed against is conclusive ;
an order of removal of a woman, though not as wife, is con-
clusive of the settlement of the husband as well as the wife ;
and the circumstance of the party being removed under a
wrong description does not take the case out of the general
ruling" {ib.). Sje also R. v. Toioceder, 4 Djug. 240 ; R. v.
Jlinxworth, 2 Bott. 115 ; ^. v. Contham, 11 East, 388.

An order of reuDval of a pauper is the adjudication of a
competent legal authority ; and as said by BuUer, J.,
" There is no proposition in the law of settlement more clear
than this, that an order of removal unappaaled against is
conclusive against all the world." R. v. Kenilivortk, 2 T. H.
598 ; see Maiemline v. Hudson^ Fol. 273 ; R. v. Brijhthelm-
stofie, 14 L. J. M. C. 137 ; 7 Q. B. 549. Even between two
other parishes, it is in effect a statutable certificate. R.
V. Coraham, 11 East, 388. This is, however, only applicable
up to the time of the order being made ; it may be re-
butted by some subsequently acquired settlement, on which
a new order mav be made, R. v. WUlovghhy, 4 A. & E.
143.

Where children, who had been born in England of Irish
parents (and the same would apply to a Scotch family), who
have not gained a settlement, had been removed to their
place of birth when deserted by their father after the death
of their mother, upon the return of the father they might
be removed with him under 8 & 9 Vict. c. 117, s. 2, to
Ireland as part of his family : the children were irremovable
without him. R. v. All Saints, Derby, 19 L. J. M. C. 14 ;
13 Jur. 1100; see this case ante.

Effect of Coniirming or Quashing an Order on Appeal.

In Mynton v. Stony Stratford, 2 Salk. 527, Holt, C. J., Effect of
and the Court held that : " If on appeal to the sessions an conlirmmg
order be discharged, that judgment is binding only between an Tide "'of
the parties ; but when upon appeal an order is confirmed, removal,
that is conclusive to all persons as well as to the parties, for

Y 2

484

REMOVAL AND SETTLEMENT OF THE POOR.

Quashing
does not
bind third
parties.

Quashed
not on the
merits.

Order
made
evidence
on points
decided.

it is an adjudication that this is the place of the party's last
legal settlement."

So in Little Bitham v. Somerhy, 1 Stra. 232, the Court
said : " An order of reversal is final only between the two
23arishes; but if it be confirmed it is final as to all the
world, unless upon a subsequent new settlement appearing."
See also R. v. Bradenhen, Burr. S. C. 394. And they would
be estopped from inquiring into another settlement gained
before that time : Hehtoii v. St. Bride's, 22 L. J. M. C. 65 ;
1 E. & B. 583 ; R. v. Wick St. Lcmrence, 5 B. & Ad. 52G.
And so it would be conclusive as to a derivative settlement.
R. v. CatteraU, e^M. & S. 83.

Though the quashing of an order of removal is only binding
and conclusive between the immediate parties to the appeal,
St. MichaeVs, Beddington, v. Kingdon Bowsey, 2 Salk. 486,
it does not conclude a third parish, which may be able to
give better evidence than the other could, from proving the
pauper was settled in the appellant parish : per Lord Hard-
wicke, C. J., R. v. Cirencester, Burr. S. C. 17 ; -^. v. Bentley,
ib. 425.

An order quashed on mere matter of form is not conclu-
sive, and a fresh order may be obtained : see R. v. Rixley,
7 Jur. 579 ; also R. v. Kingsclere, 3 Q. B. 388 ; ^. v. St.
Aime's, Westminster, 9 Q. B. 878; 16 L. J. M. C. 41. But
where the order was quashed generally it was held to be
priind facie evidence of, but not absolutely, an estoppel ; and
it is open to the respondents to show that the decision was
on a matter of form only. R. v. Leeds, 11 Jur. 1077.

It is a question whether in deciding on " form " only, the
sessions have not in fact decided on the merits, and disposed
of the interests of the parties, when the order will be con-
clusive. Thus, where the Court quashed an order on the
ground that the examinations disclosed no settlement, a
decision on this ground was held to be, "though not
exactly on the merits," still binding as one which was con-
clusive and an estoppel to any other removal. R. v. St,
Mary, Lambeth, 7 Q, B. 587 ; 14 L. J. M. C. 133.

The order is not evidence for a collateral matter; it is
only evidence on points necessarily incident to the point
decided : R. v. linaptoft, 2 B & C. 883 ; Duchess of King-
ston's case (De Grey, C. J.), 20 How. St. Tr. 261, 355, cited
in R. V. Wye, 7 A. & E. 761, by Lord Denman, C. J. See
Barrs v. Jackson, 1 You. & C. 585, 595; and see R. v.
Uartington, 4 E. & B. 901 ; 24 L. J. M. C. 98, 104, judgment
by Coleridge, J. ; R. v. Droitwich, 9 Q. B. 886 ; 16 L. J. M. C.

PARENTAGE. 485

38 ; Lord Campbell's, C. J., remarks approving E, v. Wi/e,
supra

The entry in the sessions book is evidence of confirming or
quashing tiie order on appeal. E. v. Yeaveley, 9 A. & E.
806 ; 1 P. & D. 60.

Since, however,' the large powers of amendment given to
the Conrt under 11 & 12 Vict. c. 31, s. 4, and the extended
power of the parties to abandon orders of removal before
appeal under the same Stat. s. 8, and 12 & 13 Vict. c. 45,
s. 6, cases brought before the sessions for the hearing, are
tried more on the merits than upon any technical point of
mere matter of form.

Parentage. .

Settlement by parentage cannot, since 39 & 40 Vict. c. Legitimate
61, s. 35, The Divided Parishes, &c. Act, be attained except chikl under
in the case of a cliild under the age of sixteen, which child sixteen
shall take the settlement of its father or of its widowed j..ett]ement
mother, as the case may be, up to that age ; and shall retain of parent :
the settlement so taken until it shall acquire another. But but not if
if it cannot be shown what settlement such child derived <^erivative.
from the parent without inquiring into the derivative settle-
ment of such parent, such child shall be deemed to be settled
in the parish in which it was born.

The effect of this section seems to be, that the child will Effect of
continue to be removable with and have the settlement of the 'section.
father, or that of the widowed mother, up to the age of six-
teen ; and from and after that age, he will " retain " his
father's then last settlement, although he may continue to
live with his father, imless whilst being a member of the
family he may acquire a settlement for himself in another
parish or union. Should the father have acquired no settle-
ment of his own, then the child will have his own indepen-
dent settlement in the place of his birth : see St. Andrew' s^
Worcester, v. Bodenham, 22 L. J. M. C. 39, and the remarks
in the judgments of Lord Campbell, C. J., and Coleridge, J.
If child abandoned, or deserted, see pp. 461, 487, 495.

By the same section an illegitimate child will retain niegiti-
the settlement of the mother until it acquires another, mate chil-
Formerly the illegitimate child only had the mother's settle- ^^^"•
ment until it attained sixteen, and then had the birth
settlement. In this respect 4 & 5 Will. 4, c. 76-, s. 71, is
repealed, excepting so far as regards bastard children who
may have passed the age of Sixteen at the time the later

486

KEMOVAL AND SETTLEMENT OF THE POOR.

Marriage
of mother
of bastard
child.

Hailing -
hoi'nc V,
W est Ham;
Lind-
leys, J.,
review of
sec. 35,
39 & 40
Vict. c. 61.

Where

parent's

settlement

derivative

aud has to

be inquired

into.

Second
marriage
gives no
t;ottlement
to children
of first
marriage.

How lest

statute, 39 k, 40 Yict. c. 61, s. 35, came into operation.
Tenterden Unmn v. St. Mary, hlimfton, 47 L. J. M. C. 81 ;
38 L. T. 485 ; and see the cases there cited.

An illegitimate child under sixteen does not take the
mother's settlement whicli she may derive from her mar-
riage. Manchester y. St. Fancras, 4 Q. B. D. 409 ; 41 L. T.
218; 27 \Y. R. 885.

Lindley, J., clearly expressed the effect of tliis section
(Matthews, J., concuiTing) in JJollinghorne y. West Ham,
50 L. J. M. C. 74. The father, in that case, was born in
Sutton Vallance, in which parish it was admitted his settle-
ment was. He died in 1875, leaving four children, each
under sixteen years of age, and his widow surviving. The
question was, did the children take the settlement of the
" widowed mother " which she would derive from her hus-
band. The Court held they would, Lindley, J., saying :
" This section, after the clause abolishing derivative settle-
ments generally, is divisible into three parts. ^Vhe frst part,
so far as it relates to children, applies to legitimate children
under sixteen with a lather or widowed mother. Thev are

ft/

to take the settlement of the fjxther or the widowed mother.
The second part applies to illegitimate children only. The
third part ap})lies to ' any child in this section mentioned /
and in Tlie Manchester- Owrseers v. St. Fancras (sKp.), these
words were held to include legitimate and illegitimate chil-
dren. The present cas-e falls within the Jirst part of the
section, the children being legitimate children and having
the settlement of the widowed mother. I find nothing in
the third part of the section taking away the settlement
given to the child with the parent or a widowed mother."

As soon, however, as it appears that the husband's or father's
settlement is a derivative one,— which has to be inquired into
in order to ascertain it, — the children will be deemed to be
settled in the place of their birth. Woodstock v. St. Fan-
eras, 4 Q. B. D. 1 ; 48 L. J. M. C. 1 ; 39 L. J. 256 ; 27
W. R. 229 j eo nom. R. v. St. Fanaas.

No settlement is gained by the children arising from the
second marriage of the widowed mother." Keynsham v. Bed-
minster, 3 Q. B. D. 344 ; 47 L. J. M. C. 73 ; 38 L. T. 507 ;
26 W. R. 591 ; see the cases, 6'o»ier v. Miller, 6 Mod. 87;
2 Salk. 528 ; St. Giles v. St. Clement's, Cald. Ca. 10; Wangford
V. Brandon, Carth. 449 ; B. v. St. Giles' -in-the- Fields, Burr.
S. C. 2 ; R. V. Walthanistow, 6 A. k E. 301 ; R. v. St. Mary,
Newington, 4 Q. B. 583 (Patteson, J.).

'Jlie settlement of the child by parentage may be entirely

I

RENTING A TENEMENT. 487

lo:st and a new and independent one acquired by the child by child'.s
itself, althoug'h of tender years, in consequence of the i'^^^epeu-
abandonment by the mother or parent, and by a residence ^i^jj^e
of the child out of the control of the parciut, and under such under sec.
circumstances, that a settlement has, been gained by a resi- 34 of 39 &
dence of tlie child so as to satisfy the requirements of ^^ ^ ^*^^- ^•
sec. 34 of 39 & 40 Vict. c. 61 ; see" A', v. Leeds, 48 L. J. ^^•
M. C. 129; 4Q. B. D. 323, and infra, "Settlement by
Kesidence."

By Relief.

Where a parish affords relief to a poor person residing
out of the parish, the presumption of law is that such parish
would not extend the relief unless under an obligation. R. v.
Wakefield, 5 East, 335 ; K. v. Barmlei/, 1 M. <fe S. 377 ; R. v.
Maidstone, 12 East, 550.

liut such relief may be explained away, as that it was given
in mistake. R. v. Bedingham, 8 Jur. 378 ; R. Y.East Winch,
12 A. ^ E. 697 ; R. v. Acton, 8 Q. B. 108.

The effect of the relief as an acknowledgment of the
pauper's settlement is a question for the sessions, whose
decision the (.ourt of Queen's Bench will not disturb. R. v.
Edwimtowe, 8 B. k C. 671 ; R. v. Yarivell, 9 B. &.C. 894;
4 M. & R. 685 ; R. v. Great Salkeld, 6 M. & S. 408.

By Renting a Tenement.

The statutes which have had reference to a settlement by Statutes.
renting a tenement are, 13 & 14 Car. 2, c. 12, s. 1, which re-
mained in force until July 2, 1819, when the 59 Geo. 3,
c. 50, was passed. That statute continued until 22nd June,
1825, when 6 Geo. 4, c. 57, was passed, and subsequently in
1834 the 4 & 5 Will. 4, c. 76, s. 66, was added to the
statutes.

The material alterations which have taken place in the
nature of the qualification for acquiring a settlement by rent-
ing a tenement under the above statutes, the following
resume of tlieir provisions will explain : —

In the reign of Charles II. it was considered that a 13 & 14
person "coming to settle on any tenement over the value of Car. 2,
£10, and who could bondjide contract to pay at the rate of ^- ^'^'
£10 a year as rent for the occupation of a tenement, and
should reside for forty days in the same parish where it lay,
was a fit person to have his settlement there, and be irremov-

488

REMOVAL AND SETTLEMENT OF THE POOR.

59 Geo. 3,
c. 50.

Actual
occupation
au<l rent
to amount
of i'lO
paid

under 1 W,
4, c. 18.

And as-
sessed to
poor-rate
4 & 5 Will,
4, c. 76.

Limit of
residence
after
removal.

Definition
of " tene-
ment."

able, and to such extent was the enactment of 13 & 14 Car.
2, c. 12, s. 1, creating the settlement.

Under 59 Geo. 3, c. 50, an additional provision was made
that no person could acquire the settlement unless such
tenement consisted of a house or building within such parish
or township, being a separate and distinct dwelling-house or
building, or of land within such parish or townsliip, or of
both hondfide hired by such person at or for the sum of .£10
a year at least, for the terin of one wJiole year ; nor unless
such house or building be held, and such land occupied, and
the rent for the same actually paid, for the term of one whole
3'ear at the least by the person hiring the same ; nor unless
the whole of such land be situate within the same parish or
township as the house wherein the person hiring the said
land dwelt and inhabited.

Under 6 Geo. 4, c. 57, s. 1, a proviso to the above was
added that it was not necessary to prove the actual value of
the tenement.

The 1 Will. 4, c. 18, s. 1, after reciting the provisions of
the 6 Geo. 4, c. 57, and that doubts had arisen concerning
the occupation of the tenements by the person hiring the
same, and the amount of rent to be paid, and the person pay-
ing the same, to remove such doubts, it enacted, that no
person thereafter (30th March, 1831) should acquire the
settlement by reason of such yearly hiring of a dwelling-
house or building, or of land, or of both, as in the said Act is
expressed, unless such house or building or land shall be
actually occvjned under such yearly hiring in the same parish
or township by the person hiring the same for the term of
one whole year at the least, and unless the rent for the same,
to the amount of £10 at the least, be paid by the person hiring
the same ; and by sec. 2, where the yearly rent exceeded
£10, payment to the amount of £10 will suffice.

Under 4 & 5 Will. 4, c. 76, s. 66, a further requirement
was added — that no settlement should be acquired or com-
pleted by occupying a tenement " unless the person occupy-
ing the same shall have been assessed to the poor-7'ate, and
have paid the same in respect of such tenement for one
year."

And by sec. QS, no person can retain a settlement gained
by possession of any estate or interest in any parish longer
than he inhabits within ten miles thereof.

" Tenement " has in its general application a more comprehen-
sive meaningthMu "land, "and maybe "real" or "incorporeal."
In Co. Litt. 19 b., 20, c. 2, it is said, "the word tenement in-

RENTING A TENEMENT. 489

eludes not only all inheritances which are or maybe holclen, but
all inheritances issuing out of any of those inheritances, or
concerning or annexed to, or exercisable within the same,
though they lie not in tenure ; therefore these ma}^ without
question, be entailed as rents, estovers, commons, or other
profits whatsoever, granted out of land ; or uses, offices,
dignities, which concern lands or certain places, &c., because
all these savour of the realty." See Webb's case, 8 Rep. ;
and see R. v. Piddletrenthide, 3 T. R. 772, where Lord
Kenyon held that an incorporeal tenement conferred a settle-
ment. See also R. v. Chipping Norton, 5 East, 239 ; and
Burr. S. C. 318 ; ^. v. Hollington, 3 East, 113; R. v.
Whixley, 1 T. R. 137 ; Steph. Com.

Under this definition of " tenement " and its application Former
to the Statute of Charles IL, many complex decisions took ^<^*^'^-
place ; and there were many cases discussed as to what con-
stituted a sufficient holding of a tenement which would give
the settlement, and of which the following are instances. It
was held that the renting of a cony warren with " the per-
nancy of the profits of the land by the mouths of the
rabbits," gave the settlement : R. v. Piddletrenthide, 3 T. R.
772 ; R. V. Londonthorpe, 6 T. R. 378; R. v. Stol-e, 2 T. R.
451; see R. v. Minchin-Harnpton, 2 Sess. Ca. 320; Burr.
S. C. 316 ; 2 Stra. 874. So the renting a dairy of cows fed on
the growing produce and pasture of the land : R. v. Tol-
puddle, 4 T. R. 671, overruling R. v. Locker ly, Burr. S. C.
315 ; ^. V. Comberworth, Half, 13 L. J. M. C. 49; see also
R. V. Whixley, 1 T. R. 137 ; the renting a fishery: R. v.
Old Alresford, 1 T. R. 358 ; a mill when attached to the
land or driven by water : Evelyn v. Rintcombe, 2 Salk. 536 ;
the right to take soil from the river : R. v. All Saints, Derby,
5 M. & S. 90; or rushes from a pond: R. v. All Saints,
Cambridge, 1 B. & C. 23 ; the agistment of cows, if specific:
R. V. Sutton St. Edmunds, 2 D. & R. 800 ; R. v. Hollington,
3 East, 713; the renting tolls of a bridge (not being a turn-
pike-road bridge, 13 Geo. 3, c. 84, s. 56) : R. v. Bubwith, 1
M. & S. 515 ; or a stallage for a butcher's stall in a market :
R. V. Caversham, 4 B. & C. 683 ; the occupation must be as
a tenant: R. v. Cheshunt, 1 B. & A. 473, and not ancillary to
services rendered : see R. v. Kelstern, 5 N. & S. 136; R. v.
Bishopton, 9 A. & E. 824 ; R. v. Seacroft, 2 M. & S. 473 ; see
also R. V. Jken, 2 A. & E. 147. Where, however, a bailiif
had as part of his wages the pasturage for two cows, the feed
of the cows being worth .£10, but in no way necessary for
the performance of the service, or connected with it, a settle

Y 3

4-90 REMOVAL AND SETTLEMENT OF THE POOR.

ment was conferred: R. v. Mimt€i\ 3 M. tt S. 276; i?. v.
Melkridye, 6 T. R. 598.

To avoid further discussion on these perplexing points,
causing great litigatioUj 59 Geo. 3, c. 50, was passed. And
whether by that statute, or under 6 Geo. 4, c. 57, and
1 Will. 4, c. 18, the ^^ tenement,'" the hiring and occupation of
wliich is now to give the settlement, must solely consist of a
separate and distinct dwelling-house or building, or of land,
or of both, and in one parish; within such limit the "tene-
ment" is confined: see R. v. Wooiton, 1 A. & E. 232; 3 N.
&AJ.312.
All alien A foreigner, or an alien, may gain a settlement by renting

^^y. a tenement: R. v. A^fstfwmiie, 4t Eaat, 103; 1 Taun. K. L

thT«etUe- ^^ ^^^^y ^ soldier when on duty : R. v. Brig] iththns tone, 1 13.
ment. & Aid. 270.

Coming to "^^^^ " coming to settle " means, the holding and renting
settle. a tenement in the character of a tenant within the parish :

Lord Ellenborough, C. J., R. v. Boiimess, 4 M. <fc S. 210; see
R. v. Cheduton, 4 B. ct C. 230.
The con- '^^^^ contract for the hire of the tenement for the year

tract for must be hand Jide : bS) Geo. 3, c. 50 ; 6 Geo. 4, c. 57; and
the hiring 1 WJl. 4^ c. 18. The contract may be express or implied
by a general letting : Redman k Lyon, Land, and Tenant, 4.
Where the contract is express and in writing, the contract
will, of course, prove beyond dispute the terms of the hiring.
Strictly, the contract should be produced, or its non-produc-
tion satisfactorily accounted for : see R. v. Merthyr Ti/dvil,
1 B. & Ad. 29, But where rent has been paid, proof of the
jjayment may be made without producing the contract
of hiring ; and the fact of the tenancy may be so proved,
without the necessity of proving the terms of the contract.
R. V. llie Holy Trinity, Kin gston-upon- Hull, 7 B. cfc C. 611 ;
1 M. k R. 444.

The questions arising under the above case, R. v. King-
ston-upon-IIuU, were on facts prior to 59 Geo. 3, c. 50, and
6 Geo. 4, c. 57, where the proofs necessary to establish the
settlement were that a tenancy subsisted, and that the value
of the tenement was i-'lO by the year. The ter7ns of the
agreement were immaterial. But under 59 Geo. 3, c. 50,
and 6 Geo. 4, c. 57, the terms of the tenancy are material
for showingthe rent contracted for, and which cannot be proved
without the production of the document : see Payley's, J.,
remarks in R. v. Kingston-upon-Hull, in R. v. Merthyr
I't/dril, 1 B. & Ad. 29 ; see also Fenn d. Thomas v. Griffiths,
6 Bing. 534 ; R. v. Radstow, 2 A. & E. 213.

for the
year

RENTING A TENEMENT. 401

The presumption, however, of the tenancy arising from Presump-
the occupation, the proof of which makes out a primd facie ^*^" °^
case of a tenancy, cannot be negatived without the pro- ^^^^ ^^^^^
duction of the written agreement when shown to exist; and potion,
it Ues on the opposing party to produce it. See R, \.
Rawdeii, 8 B. & C. 708; 3 M. & R. 426.

The statutes do not require that there sliould be any
other hiring or renting than would in ordinarj^ cases con-
stitute a tenancy for a year : R. v. Hurstmonceaux, 7 B. tk C.
551 ; 6 L. J. M. C. 3o ; R. v. .S'^. Giles', Cripplegate, 33 L. J.
M. C. 3. So where a house was hired quarterly at a yearly
rent of £25, to be paid quarterly, determinable on a quar-
ter's notice to be given by either party, it was held that
this constituted a renting of a tenement " at a yearly rent,"
and sufficiently contemplated a tenancy to continue for a
year, that the Court, on the authority of R. v. Hurstmon-
ceaux (decided by Bayley, Holroyd, and Littledale, JJ.),
held this was such a bond fide tenancy for the year as to
create the settlement : R. v. aS'^. James'', Clerkemvell, 35 L. J.
M. C. 65 ; see also R. v. Willesden, 3 B. & S. 593 ; 32 L. J.
M. C. 109.

So also a demise for a half year, and so on from half year
to half year, would be a demise for one year at least : R. v.
Charlton, 1 Q. B. 245 ; 4 P. & D. 525 ; and see Hastings v.
St. James\ Clerkenwell, 35 L. J; M. C. 65. Sed vide R. v.
Norwich Corporation, 30 L. T. 704.

Primed facie, a general hiring will be presumed to be a
yearly hiring : Doe v. Browne, 8 East, 165 ; Doe v. Watts,
7 T. R. 83. And the presumption is stronger where the
hiring is of land, which varies in its value at diffisrent periods
of the year : R. v. Wainfleet, All Saints', 8 B. & C. 227 ;
2 M. & R. 223.

The letting of property without any stipulation as to the Eflfect of
duration of the tenancy is a letting at will ; but as soon as -acceptance
the landlord accepts a yearly rent, or rent measured by any jlj-^j^^j ^
aliquot part of a year, a letting from year to year arises,
unless some agreement to the contrary is made between the
parties : Doe v. Wood, 14 M. & W. 682, 687; Richardson v.
Lam7-idge, 4 Taunt. 128 ; Hunt v. Allgood, 10 C. B. N. S. 253.

Under 59 Geo. 3, c. 50, the whole of the rent contracted Payment
for must have been paid — " the rent for the same actually ^* ^'^"*
paid for the term of one whole year " — so that with a rental ^^ £io^^
of £100, and only <£99 paid, the settlement would not have
been conferred. See R. v. Ramsgate, 6 B. & C. 7 1 3 ; R. v.
Ashley Hay, 8 B. tfc C. 27 ; ^. v. Kibworth Harcourt, 7 B. tt C.

492

REMOVAL AND SETTLEMENT OF THE POOR.

The rent-
ing must
be bond
Jide;
fraud
avoids th«>

790. But this position was rectified by 1 Will. 4, c. 18, s. 1,
stipulating " that the rent, to the amoiud of £10 at the
least " should be paid ; and payment to that amount is now
sufficient to gain the settlement under 6 Geo. 4, c. 57 :
J?. V. BrightJielmstone or BrigJUon, 1 Q. B. 674; 10 L. J.
M. C. 93.

Rent paid after an order of removal executed will confer
the settlement: R. v. WillougJthi/, 4 A. & E. 152; the
removal will not put an end to the contract : li. v.
Fillonghhy, 2 T. R. 709.

Rent paid by officers of a parish for the pauper with the
fraudulent purpose of his gaining a settlement, will avoid the
settlement : R. v. St. Sepulchre, Cambridge, 1 B. & Ad.
934 ; see, however, R. v. liibworth Harcourt, 7 B. & C. 790,
where, neither the landlord nor the tenant being parties to
settlement, the fraud, the settlement was held good.

Where the contract for the renting is merely colourable,
the settlement is defeated : R. v. Woodland, 1 T. R. 261.
But the sessions must expressly find the fact that fraud
exists : the Court of Queen's Bench will not presume fraud,
however pregnant it may be : R. v. Filloughhy, 2 T. R. 709 ;
R. V. Llanhedergoch, 7 T. R. 105.

Where the stewards of the Wesleyan congregations "going
circuit " as " circuit stewards," take houses as residences for
the officiating ministers, the rent and rates of which are paid
by the " steward ; " and if paid by the officiating minister,
the steward repays him ; — the ministers who are appointed
for the circuit, gain no settlement : R. v. Tiverton, 30 L. J.
M. C. 79.

But if the bond fide renting be made by the party, although
a third person be surety to the landlord for the rent, the
settlement is acquired : R. v. Kegworth, 2 M. & R. 29 ;

1 M. & R. (M. C.) 281.

Apportion- Where the land rented under one holding lies in two
mentofthe parishes, it may be shown by evidence that the land lying
in one of these parishes confers a settlement as being of the
value by the year of £10, and which proportion of the rent
was paid by the tenant when paying his entire rent. Notwith-
standing the proviso in 6 Geo. 4, c. 57, that "value" need
not be proved, if a party who rented land in two parishes for
which he might pay an annual rent of £300 or £400, and
one acre be in one parish, the residue in another, if evidence
of the division of value were not admissible, the tenant
would gain a settlement in neither parish. R. v. Fickering,

2 B. & Ad. 267 ; R. v. Hockworthy, 7 A. & E. 493.

rent.

RENTING A TENEMENT. 493

The occupation of the tenement under 6 Geo. 4, c. 57, The occu-
was a simple technical occupation, so that the occupation by P**^^^-
a third person was sufficient. 59 Geo, 3, c. 50, had required
that the occupation should be " by the person hiring" the
tenement, but those words are not in 6 Geo. 4, c. 57. In R.
V. Great Bentley, 10 B. & C. 520, the Court considered that
those words were left out by design, and therefore it was
held under that statute that a person who occupied the pre-
mises but underlet a portion still satisfied the statute and
gained the settlement ; see also R. v. Ditcheat {a), 9 B. & C.
176.

But now, under 1 Will. 4, c. 18, there must be an actual
occupation, under the hiring, by the person hiring the same,
for the term of one whole year at the least.

Under this statute the ivhole subject-matter of the renting Actual
must be occupied ; the occupation of part, which may be occupation,
equal to a rental of £10, will not suffice : R. v. Berhsivell, 6
A. & E. 282 ; 1 N. & P. 423. The tenant must be uncon-
nected with any other person, and a separate occupier : per
Lord Denman, C. J., R. v. Caversivall, 1 P. & D. 427 ; also,
per Patteson, J., in R. v. Wootton Bassett, 1 A. & E. 232 ; 3
N. & M. 312.

It must be an occupation in fact of the whole dwelling-
house and not a constructive one, and no part of the pre-
mises can be underlet to retain the settlement. R. v. St.
Nicholas', Rochester, 5 B. & Ad. 219 ; 3 N. & M. 21, in which
case Patteson, J., said : " the words ' actually occupied ' put
an end to all question, and the case must be considered as
if the word ' actually ' were incorporated in 6 Geo. 4, c. 57,
which is not repealed by 1 Will. 4, c. 18. Then, reading the '
6 Geo. 4, c. 57, as if that word, as well as the words * by
the party hiring the same,' were incorporated in it, it will
prevent any one from acquiring a settlement by renting a
tenement unless such house or building (that is, the separate
and distinct dwell ing-liouse, or building, or land, or both, of
■which the tenement is required to consist) shall be actually
occupied under the yearly hiring, by the party hiring the
same, for the term of one whole year ; " see also R. v. Mac-
clesield, 2 B. & Ad. 870 ; R. v. aS'^. Nicholas, Colchester, 2 A.
& E. 599.

So also where a tenant assigns the growing crops before
the expiration of his year, retaining only possession of the
house, he has no settlement : R. v. Pakefield, 4 A. k E.

{a) See Lord Denman's re- Mary Kallendar, 9 A. & E. 626 ;
marks on this case in R. v. St. 1 P & D. 497.

494

REMOVAL AND SETTLEMENT OF THE POOR.

Where the
under-
letting
is limited.

The yearly
hiring
must be
oomi)leted.

612; 6 N. & M. 16, supported and acted on in 7?. v.
Mehonhy, 12 A. & E. 687.

But there mav be a limited lettino: under which the
pauper had not held, at all times, the entire use of all parts of
his house ; as where he had, at intervals, let out bedrooms to
lodgers for the night or week. In this instance the lodgers
had not any right to the rooms during the day, but to
which the pauper and his family had constant access and
had control over during the day, and of which the jjauper
retained the keys. The case was likened to that of an
innkeeper ; and under the circumstances the pauper re-
tained his settlement. " 'i'he case," said Littledale, J.,
" was clearly distinguishable from M. v. aS'^ Nicholas,
liochester, where the tenant let a part of the house, and it
was actually occupied by another perscm :" R. v. /St. Giles'-
in-ihe-Fields, 4 A. & E. 41)5 ; 6 N. & M. 5 ; see also B. v.
St. Mary Kallendar, 9 A. k E. 626 ; 1 P. & D. 477.

The occupation for the year must be completed by the
party who hires the house ; thus, where the husband, who
had hired the house, died a few days before the termination
of tlie year, his widow and family derived no benefit by
continuing the occupation, and gained no settlement : R. v.
Crayford, 6 B. tt C. %^.

Previous
course of
legislation.

By Residence.

The course of legislation has been of recent years to sim-
plify the law of settlement, and to rid it of those complex
questions which had arisen in tracing the settlement and
irremovability of a pauper, his family, and descendants,
through abstruse investigations of a remote derivative settle-
ment of the pauper's father ; or perhaps of some one of his
remote ancestors.

To detail the earlier history of the poor laws in reference
to settlements, however interesting a subject, would be
beyond the object of this treatise ; but reference may be
made to the fact that by 19 Hen. 7, c. 12, the settlement
might have been by residence at the place where the pauper
" had made his last abode for three years ; " as explained by
1 Ed. 6, c. 3 ; or " where he had been most conversant for
three years ; " and this period was, by 1 Jac. 1, c. 7, " to be
where he last dwelt by the space of one year " (a). See

(fl) It is of interest to note
how modern legislation in this,
as well as in other legal matters,

tends to revert back to that of
early history.

BY RESIDENCE. 495

further on this matter, 4 Burn's Justice of the Peace,
"Poor," Vol. I., 316.

As to the irremovabihty of a pauper by reason ofThein-e-
residence, reference is made to that subject di^scussed JJ^*^^'^^\^^*^
under the title, " Removal of the Poor," sujyra, p. 454, ^^ucq]
where the authorities are collected. Such irremova-
bility of the pauper is made the foundation of the settle-
ment by residence imder 39 & 40 Vict. c. 61, s. 34:
" Where any person shall have resided for the term of three
years in any parish in such manner, and under such circum-
stances in each of such years, as would, in accordance with
the several statutes in that behalf, render him irremovable,
he shall be deemed to be settled therein until he shall
acquire a settlement in some other parish by a like residence
or otherwise ; provided that an order of removal, in respect
of a settlement acquired under this section, shall not be
made upon the evidence of the person to be removed, without
such corroboration as the justices or Court think sufficient."

This section has no retrospective effect. Where such a 39 & 40
status of irremovability as above required by the Act had, Vict. c. 61
before the Act, been acquired, hiit had been lost before it came ypg^^^^g"*
into operation, no settlement was gained : U. v. Ipsivich ^viiere
Unimi, 2 Q. B. D. 269 ] 46 L. J. M. C. 207 ; 36 L. T. 317 ; settlement
25 W. K. 511. lost before

But where the residence had been continuous, during * ® \ ^^'
each of the three years, partly before and partly since the ^gg^jg^^^"^
Act, the pauper acquired the status of irremovability and j^gfoi-e and
the settlement was gained. E. v. Carlisle Union, 47 L. J. M. after the
C. 114; 3 Q. B. D. 479. Act.

. Before this Act, a child under seven years was always Children
removable with the mother for the natural care and nurture ^^nder
of the child. But, under this section, even such an infant J^^v^ac-^^^
may gain the status of irremovability, and thereby acquire quire
the settlement under the statute. So where the child of settlement.
a single woman was born in the parish R., and when e. v.
it was about a fortnight old it was placed by the mother Leeds
under the care of a man and his wife with whom it lived Union.
away from its mother for six years in parish S. without
receiving any relief. There was nothing to show that
the mother, who had never been again near the child, in-
tended to resume her maternal rights, and in this respect, the
Court remarked, the circumstances were different from a
parent sending a child to school, as in B. v. I'he Abingdon
Union, 39 L. J. M. C. 153 ; L. R. 5 Q. B. 406, in which
case the child would still be subject to the control of the

496 EEMOVAL AND SETTLEMENT OF THE POOR.

parent, making the child's constructive residence the parental
home. But where the child has been wholly given up, and
there has been a virtual abandonment of it, and apparently
no intention to resume the parental rights, the only alterna-
tive was that the child resided where it was placed. R. v.
Leeds Uiiion, 4 Q. B. D. 323 ; 48 L. J. M. C. 129 (a).

The following part of the 35th sec. 39 & 40 Vict. c. 61,
may be noticed in regard to the preceding case : " An ille-
gitimate child shall retain the settlement of the mother until
such child acquires another settlement." In R. v. Leeds
" another settlement " ^vas acquired. See R. v. St. Mary^
Newington, 4 Q. B. 581 ; 12 L. J. M. C. 68.
Lunatic A female criminal lunatic who had been acquitted on the

wife ground of insanity will have the settlement of her husband

settlement '^^ ^^® time of the making the order, and not at the time of
of husband l^cr detention ; so where the woman was placed in detention
on his at Broadmoor in 1867, and the order adjudging her settle-

ressidence. ment was not made until 1877. In 1877, the husband had
acquired a settlement by residence in Westbury, and was
there settled at the time of the order respecting his wife's
settlement, she being then in detention at Broadmoor, and it
was held her settlement by residence was rightly adjudged
to be that of her husband's. Manisty, J., pointedly put the
case : *' Why is a parish which would not be chargeable with
the maintenance of the person if she were sane, to be charged
with it because she is insane by no fault of hers %" Barton
Regis Union v. Berks. Clerk of the Peace, 4 Q. B. D. 37 ; 48
L. J. M. C. 51 ; 39 L. T. 445 ; 27 W. R. 362.

A married woman living apart from her husband may
gain an independent settlement of her own by residence.
R. V. Maidstone, 5 Q. B. D. 31 ; 49 L. J. M. C. 25 ; see 24
& 25 Vict. c. 55, 8. 3 ; 29 & 30 Vict. c. 113, s. 17 ; 39 it 40
Vict. c. 41, s. 34. See ante, p. 462,

Bi/ Payment of Rates.

3 Will. & By 3 Will. & M. c. 11, s. 6, any person coming to inhabit
M. c. 11, III any town or parish, and charged with the payment and
paying his share towards the public taxes or levies of the

(<i) See remarks of Cockbum, a family was all together. It

C. J,, ou the proviso in sec. 1 of was to prevent a united family

11 & 12 Vict. c. Ill (passed to from being separated : R. v.

remove doubts in 9 & 10 Vict. c. Leeds {snj)ra}, in reference to E.

66, s. 1), and which, his Lordship v. St. Ebbe's, 12 Q. B. 137; 18

said, only referred to cases where L. J. M. C. 14.

s. 6

BY PAYMENT OF RATES.

497

town or parish, was adjudged to have a legal settlement
there.

Under this statute a person rated and paying taxes,
whatever might be their value, acquired a settlement. The
parish was considered to have adopted, in such a case, the
person as one of the parishioners : per Bayley, J., in R. v.
St. Pancras, 2 B. & C. 122 ; 3 D. & R. 343.

35 Geo. 3, c. 101, s. 4 (1795) required the tenement rated
to be of the yearly value of XI 0 {a).

By 6 Geo. 4, c. 57, s. 2 (1825) the like restrictions were Payment of

put on settlements by payments of rates as by renting a i''^tes to be

with pay-
ment of
settled in the parish, and demand rent.

(«) The sole object of the
legislature in passing 35 Geo. 8,
c. lUl, was to take away the
power of removing poor persons
likely to become chargeable, and
to make them irremovable until
actually chargeable. But in
doing this it became necessary to
guard against certain evils which
this change would produce to
parishes. For instance, by the
old law, a person coming into the
parish, and giving a written
notice to the overseers, would, if
he resided forty da3'S, gain a set-
tlement ; the reason of this
being, that if likely to be charge-
able, the overs^eers, availing them-
selves of the knowledge thereby
communicated, might remove
him. But when the law was
altered, and " actual " substituted
for "jyryJ«JZe," chargeability, it
would follow that a person very
likely to become chargeable
might, if he was desirous of doing
so, come in and give notice, and
in defiance of the overseers
acquire a settlement by only not
demanding relief for forty days.
In order to remedy this evil,
settlement by notice was abo-
lished by section 3. So again, if
a person came to settle on a tene-
ment under £10, he would by the
old law be removable if likely to
become chargeable ; but if he
was rated and paid rates in
respect of it for forty days, and
was not during that time actually
chargeable, he might become

relief on the forty-first day. For
this reason, such persons rated in
respect of tenements under jfelO
were prevented by section 4 from
gaining settlements by paying
rates. Similar reasons may be
given for the two remaining
enactments in the 5th and 6th
sections. The whole may thus
he summed up : Wherever the
change of the law from probable
to actual chargeability enabled
persons who were likely to become
chargeable to obtain settlements
by preventing the parish officers
from removing them for forty
days, those settlements were
abolh-hed ; but where by the
law, as it stood before 35 Geo, 3,
c. 101, such persons were irre-
movable, that Act did not inter-
fere with their cases : Holroyd,
J., in R. V. Idle, 2 B. & A. Ud.
Applying this principle to the case
here decided, we may conclude
that the 35 Geo. 3, c. 101, did not
prevent settlements by paying
rates in respect of tenements above
£10 ; for to such cases the incon-
venience above pointed out did
not apply. By 13 & 14 Car. 2,
c. 12, persons coming to settle on
tenements above £10, and conse-
quently persons paying rates in
respect of such tenements, were
irremovable, even though likely to
become chargeable. Their situa-
tion therefore was not altered by
35 Geo. 3, c. 101 : see E. v. tSt.
Pancras, 2 B. ic C. 128, note.

498

REMOVAL AND SETTLEMENT OF THE POOR.

Actual oc-
cupation.

Rent paid
to amount
of £10.

tenement ; enacting that no person should acquire a settle-
ment by payment of parochial rates (a) for any tenement not
being his or her own property, unless such tenement consisted
of a separate and distinct dwelling-house or building, or of
land or of both, bond Jide rented by such person in such
parish or township at and for the sum of £10 a year at the
least, for the term of one whole year ; nor unless such
house or building or land be occupied under such yearly
hiring, and the rent for the same to the amount of <£l(),
actually paid for the term of one whole year at least ;
and it shall not be necessary to prove the value as was the
case under 35 (jTeo. 3, c. 101, s. 4.

The 1st sec. of 1 Will. 4, c. 18, although reciting fully the
6 Geo. 4, c. 57, s. 2, the enacting portion requiring that, in
the case of a settlement by the renting of a tenement, the
house, etc., shall be "actually occupied" under the hiring,
it is not made to apply to the settlement by payment of
rates.

Sec. 2 applies to the payment of rates, as well as to the
renting a tenement, and under which all doubts as to the
amount of payment of the rent are set at rest by the enact-
ment that, in cases where the rent exceeds £10 by the
year, "payment to the amount of £10 shall be deemed
sufficient."

4 <fe 5 Will. 4, c. 76, s. ^Q, made a further requirement to
obtain the status of settlement on renting a tenement,
but which does not apply to payment of rates, the being
assessed to the poor-rate, and paying the same for one year.
" There is a time when a point even in sessions law^ ought
to be considered as settled," said Parke, J,, in R. v. Penryn^
2 B. & Ad. 224. And although Lord Denman said in
B. V. Stoke Damerel, 6 A. & E. 308, that he believed the
legislature intended to get rid of the settlement by rating
by the Acts of Parliament, and so said Lord Ellenborough in
li. V. Fenryn, referring to the same opinion expressed by
Lord Kenyon, that head of " Settlement " reappeared ; and
when 6 Geo. 4, c. 57, passed, it could not be doubted that a
person might gain a settlement by the payment of rates. The
effect of that statute w^as to prevent the occupier of a tene-
ment gaining a settlement by such means unless the tenement
were of a certain description. " But," said Lord Denman,

(a) 9 Geo. 1. c. 7, s. 6,
exempted scavengers, and the
highway rates, and 43 Geo. 3, c.

161, s, 59. the assessed taxes,
from the payment of taxes which
could confer a settlement.

BY PAYMENT OF RATES. 490

"believing:, as I certainly do, that the leixislatiire intended to
get rid of the settlement altogether by payment of rates,
still 1 cannot see they have taken effectual means for doing
so. Tiie settlement by the payment of rates, supposing the
tenement to be such. as described by 6 Geo. 4, c. 57,
continues, notwithstanding the 1 Will. 4, c. 18."
The requirements to g.iin this settlement are : —

1st. The tenement must consist of a separate and distinct
dwelling-house, or building, or land, or of both.

2nd. It must be bond fide rented at the sum of XI 0 a
year at the least for one whole year.

3rd. The house, tfec, must be occupied under such yearly
hiring.

4th. The rent to the amount of £10 actually paid for the
term of one whole year at least, although the rent exceeds
£10.

" The tenement must be separate and distinct," that is,
"unconnected with any other person and a separate occupier:''
Lord Denman, B. v. Caverswall, 1 P. & D. 436, and Patte-
son, J., in R. v. Wootton, 1 A. & E. 232 ; Ji. v. Ushivorth, 5
A. & E. 261.

An " actual" occupation is not required as provided under Actual oc-

1 Will. 4, c. 18, in respect of renting a tenement ; an under- cnpation
letting will not vitiate the settlement : R. v. Stoke Damerel, ".^* reqixi-
6 A. & E. 308 ; 1 N. & P. 453 ; R. v. Brighton, 1 Q. B. ''*^*
674 ; 1 G. & D. 54. The occupation is to be for the year ;

but such occupation may be a " constructive " one, as by keep-
ing the key of the house or otherwise. See R. v. St. Marij
Kallendar, 9 A. & E. 626 ; 1 P. & D. 497 ; a forty days'
residence is not sufficient (a) ; R. v. Westbury-on-1'rym, 7
E. & B. 444 ; 26 L. J. M. C. 76 : and see as to the occupa-
tion under the older Stat. 59 Geo. 3, c. 50 ; R. v. St. Panamas,

2 B. & C. 122 ; 3 D. & R. 343.

Should the rent of the house be bond fide <£10 or more, a Rent paid
payment to the amount of ,£10 in one year will suffice. *° ^1*^-
Where the rent w^as £80, and three quarters had been paid
and then the house was underlet, and the pauper paid no
more rent, but was duly assessed in respect of the whole of
the premises to the poor-rate, and he paid all the rates,
this was sufficient : R. v. By^ighton {supra).

The foundation of the settlement by payment of parochial Payment of

(rt) Pefore 6 Geo, 4. c. 57, the forty days" residence was siifflcieut :
/.'. V. Rimj^itoad, 7 B. & C. GOT.

500 REMOVAL AND SETTLEMENT OF THE POOR.

one rate rates is, that it is in effect a notice to the parish officers of an
sufficient, inhabitancy. See remarks ;)e?' Bayley, J., R. v. Christ Church,
London, 8 B. & C. 660 ; S. C. eo nom. R, v. 8t. Anne's,
lUaclcfriars, 3 Man. & R. 383, where it was held that a watch-
rate in one of the city wards, collecte(i by the beadle of the
ward, did not confer the settlement : but it was held that a
land tax was within 3 Will. & M. c. 11, s. 6, that tax having
been collected by the parish officers. See also as to a watch-
rate where it was collected by the parish officers, R. v.
Everton, 29 L. J. 165 ; and in which Cockburn, C. J., said
that if a man is assessed to two rates entirely distinct, and
pays one of them and not the other, he gains his settlement
under the Statute of Will. & Mary. The payment of any
one district rate or tax, which, if standing alone, would con-
fer a settlement, is sufficient.

Improvement and lighting rates were charged on every
occupier of a city under a public local Act. The assessors
who collected the rates were appointed for each parish
separately by commissioners, the majority of whom were
elected by the parishes, but the assessors were not necessarily
parochial officers. This was held to be a public tax of the
parish, the assessment to and payment of which gave a
settlement ; and see Blackburn's, J., remarks on R. v. Everton,
R. V, Christ Church, and Lord Hardwicke's observations in
Bramlev v. Moore, 5 Burr. 76 ; R. v. St. Thomas's, Devon, 39
L. J. M. C. 83 ; S. C. Exeter Union v. St. Thomas s, 22 L. T.
379; S. C. R. v. Exeter Union, St. Sidwell, 18 W. R. 997;
as to payment of property tax, see St. George's, Hanover
Square, v. Cambridge, 37 L. J. M. C. 17.
Being There is no distinction between the word "charged" in

tolherate'^ Will. & M. c. 11, s. 6, and the word "assessed" in
e ra e. ^ ^ ^ Will. 4, c. 76, s. QQ ] and although this latter statute
applies only to settlements by renting a tenement, still the
decision in R. v. Hulme, 4 Q. B. 538; 12 L. J. M. C. 100,
affects the construction to be put on 3 Will. & M., and
6 Geo. 4, c. 57, s. 2. When, therefore, the pauper had
been " charged," although not " assessed," — that is, not
having his name on the rate-book — that will be a compliance
with the terms of the statutes if the rate be paid : see ante,
p. 488, " Settlement by Renting a Tenement." But where
the landlord paid the rates, under special agreement to pay
all rates, the tenant paying a higher rent in consequence,
and the landlord always paid the rates ; although the pauper
in this case was "assessed" as occupier, it was held he
gained no settlement : R. v. South Kilvington, 13 L. J. M. C.

BY PAYMENT OF RATES. 501

3 ; 5 Q. B. 216 ; 7 Jur. 1108 ; see R v. Weohly, 3 East, 68 ;
11. V. Axmouth, 8 East, 383 ; R. v. Oahhampton, Burr. S. C. 5.

Where rates had not been paid for some years by parties What
duly rated and a person paid the rates in a gross sum to amounts to
prevent their disfranchisement — it was held in the Q. B. in Jf ^"i^+"*
R. V. Bridg€xoaie7\ 10 A. & E. ^^, that this payment was
not good within the Municipal Reform Act. But in Hughes
V. Chatham, 13 L. J. C. P. 44, the Court of C. P. held a
payment by the Paymaster-General's clerk of a poor-rate to
which the tenant was rated, and such payment was in part
remuneration for his services, to be a payment of rates by
the tenant within the Reform Act, sec. 27, as the tenant
was himself liable for the rate. But, said Tindal, C. J.,
'* Whether or not it would have been sufficient within
3 & 4 Will. & M. c. 11, s. 6, or under 4 & 5 Will. 4, c. 76, is
another matter."

AVhere a rate is paid by a third party such payment to be
of any avail must be paid on the authority (Crompton, J.) of
the ratepayer assessed or ** charged," or the paj^ment will
confer no settlement : R. v. Bengeworth, 23 L. J. M. C. 124 ;
3 E. & B. 637, overruling R. v. Bridgewater, 3 T. R., unless
so explained; see also R. v. Bridgenorth, 10 A. & E. 66.

Where both the landlord's name and that of the tenant Entry on
are on the rate-book, until the contrary be shown, the tenant ^^*^ ^*^'^^-
is the one intended to be rated : R. v. Rainham, 5 T. R. 240 ;
R. V. St. Lawrence, 4 Doug. 190; R. v. Mitcham, ib. 226.
This is for the sessions to determine : R. v. Folkstone, 3 T. R.
505 ; see also R. v. Husthwaite, 1 E. & B. 501 ; 21 L. J. M.
C. 189, where the rates were paid by one of tw^o joint occu-
piers, and the payment was held to be that of both. So also
where the landlord was " assessed " to the poor-rate under a
local Act, under which the parish officers were obliged to
rate the landlord ; but the tenant had claimed to be rated
under the Reform Act, 2 Will. 4, c. 45, s. 30, and his name
was inserted on the rate together with that of the landlord,
and he paid the rate ; this was held sufficient : R. v. aS'^. Giles-
in-the-Fields, 7 E. & B. 205 ; 26 L. J. M. C. 55.

No alteration has been made in the law by the subsequent What
statutes to 13 & 14 Car. 2, c. 12, requiring a residence of residence
forty days to complete the settlement, 9 B. & C. 176; 4 M. ^^equired.
& R. 151.

The residence need not be on the premises if in the
parish: R. v. Waivfleet, All Saints, 8 B. & C. 227 ; 2 M. &
R. 223. But must be in the year of occupation : R. v. Wil-
loughby, 4 A. & E. 143 ; 5 N. &; M. 457 ; and in the parish

502

POST OFFICE.

Lands let

under

special

Acts.

Proof of
payment
of rates.

where the whole or such part of the tenement as is of the
yearly vakie of .£10 by the year; see ''Apportionment of the
Rent/' on p. 49 1^ : R v. Pickering, 2 B. & Ad. 267.

The 4 ife 5 Will. 4, c. 76, s. 66, which applies only to the
settlement by renting of tenement, leaves the settlement on
payment of rates on the same footing as before ; that is, as
under 3 it 4 Will, k M. c. 11, s. 6.

Where land is hired under Acts for the relief of the poor,
59 Geo. 3, c. 50, as amended by 1 & 2 Will. 4, c. 42, and
c. 59, as to crown lands, or let by parish officers to a poor
inhabitant, no settlement will be gained by payment of
rates : 1 & 2 Will. 4, c. 42, s. 5 ; and c. 59, s.''2.

To prove payment the rate-book should be produced, or its
non-production accounted for: R. v. Cappnll, 2 East, 2-3 ;
see B. V. St. Mary, War^vick, 1 E. & B. 816 ; 22 L. J.
M. C. 109 ; where the entry of the receipt of the rate by
the deceased partner of the collector, duly appointed, was
admitted as evidence.

POST OFFICE.

The statute 7 Will. 4 & 1 Vict. c. 36, consolidates the
laws relative to offences against the Post Office, and refers
to c. 32 of the same sessions "An Act to repeal the several
laws relating to the Post Office."

Sec. 2 of c. 36 inflicts a penalty of <£5 on account of every
letter conveyed by a person in contravention of the exclusive
])rivilege of the Postmaster-General. And every person who
ma}' be in the pmctice of conveying such letters will, for
each week during w^hich such letters may be so conveyed,
forfeit £100. Every person sending such letters in the like
contravention will forfeit for every such letter £5 ; or should
he be in the practice of sending such letters, then he will
forfeit £100 for each week he may so send them. And
similar penalties are to be inflicted on persons collecting such
letters.

By sec. 3 every pei^son, w^hether the master, or an officer,
or one of the crew, or a passenger of an inward bound vessel,
having in his possession any letters, not exempt from the
privilege of the Postmaster-General, after the master shall
have sent the ship's letters to the post office, will forfeit for
every such letter £5 ; and whether in the baggage or on the

POST-OFFICE. 503

person of the offender, or otherwise in his custody, it will be
considered as in his possession ; and every person detaining
such letter after demand by an officer of Customs or Post
Office authorised to demand ships' letters, will forfeit for every
such letter <£10.

By sec. 5 every person abusing the privilege of sending by
post newspapers, by inclosing any letter or writing marks,
itc, will forfeit treble the postage.

Sec. 6 imposes heavy penalties of £200 on masters of
vessels refusing to take Post Office letter-bags when tendered ;
or who shall open a sealed letter-bag ; or shall not duly
deliver the letter-bag on the ship's arrival. And every
person entrusted with a letter-bag to bring on shore, and
breaking the seal, or who may in any manner wilfully open
the same, will forfeit £20. The master neglecting oo make
his declaration of having delivered his ship's letters will
forfeit £50 ; and should he break bulk or " make entry "
before delivery of his letters, will forfeit £20.

Sec. 7 provides against the carelessness and misconduct of
persons having charge of letter-bags, and makes the person
liable to forfeit £20 if when employed to convey or deliver a
post letter-bag or post letter he shall leave the same ; or
permit a person, not being a guard or person employed for
the purpose, to ride in the carriage used for the purpose of
conveying such letter-bag or letter; or shall be guilty of
any act of drunkenness, carelessness, or other act of negli-
gence or other misconduct, whereby the safety of the post-
bag or letter shall be endangered ; or who shall collect or
receive such letter otherwise than in the ordinary course of
post ; or who shall give any false information of any assault
or attempt at robbery upon him ; or who shall loiter on the
road or wilfully mis-spend his time so as to retard or delay
the progress or arrival of a post letter-bag or post letter ; or
who shall not use due and proper care and diligence safely
to convey the same according to Post Office regulations.

By sec. 11, persons aiding and abetting in any offi3nce
under the Act will be liable to the same forfeitures as the
principals.

Sec. 13 provides that any justice having jurisdiction where Jurisclic-
the offence may be committed, may hear and determine any tion of
offence against the Post Office Acts which may subject the J^^^tice.
offender to a penalty not exceeding £20, with power to levy
a distress, and commit the offender to gaol for any time not
less than three or more than six calendar months if the full
penalty amount to £20; or for a time not exceeding three

504 POST-OFFICE.

calendar months if the penalty shall not amount to <£20
unless such penalty be sooner paid.
Ai)peal. Any person aggrieved by a conviction or judgment of such

justice may appeal against the same to the justices in general
or quarter sessions for the county or place within which the
offence was committed, which shall be held next after ten
days on which such conviction shall have been made, of
which appeal notice in writing shall be given to the prose-
cutor or informer seven clear days previous to the first day
of such sessions, and such justices may finally hear and
determine such appeal, and award costs. But no such
person shall make his appeal unless within five days after
the conviction he enter into his recognizance, with two
sureties, to prosecute his appeal, and pay costs to be
awarded. And such proceedings are not to be quashed
from want of form {a) : sec. 13.

Sec. 14 gives the justice of the peace power to mitigate
the penalties ; but all reasonable costs incurred in prosecut-
ing the case are to be allowed in excess of the penalty
imposed.

Sec. 1 6 provides for the appropriation of the penalties ;
and sec. 1 7 for the award of costs to the defendant.

Sec. 24 limits the proceedings for any penalties to within
twelve months after the commission of the offence.

The terms "post bag" and post letter," &c., are defined by

sec. 47.

Applica- By sec. 53 of the Summary Jurisdiction Act, 1879, the

tion of Summary Jurisdiction Acts will apply to all informations,

Ac™ to"^^^ complaints, and other proceedings before a court of summary

Post Office jurisdiction under the statutes relating to the Post Office.

Acts. And every offence under the Post Office statutes for which a

person is liable to forfeit the sum of <£20 may be prosecuted

before a court of summary jurisdiction in manner provided

by the Summary Jurisdiction Acts.

These provisions are inserted in consequence of Post Office
cases being excluded from the operation of the 1 1 & 1 2 Vict,
c. 43, by sec. 35 of that Act ; but so much of that section is
repealed by the 2nd schedule of the Summary Jurisdiction
Act, 1879.

(a) As to how far this appeal 32, and 55, sub-sec. (2) ; see infra,
section is affected by the Summary tit. '' Sum. Juris. Acts."
Jurisdiction Act, 1879, ss. 3J,

PUBLIC HEALTH ACT, 1875. 505

PUBLIC HEALTH ACT, 1875.

38 & 39 Vict. c. 55.

Where any person deems himself aggrieved by any rate The appeal
made under the Public Health Act, or by any order or con- against a
viction, iud":ment or determination of, or by any matter or ^^^^ ^^^^®^

/JO ^ vf t/ Qp con."

thing done by, any court of summary jurisdiction, such yiction
person may appeal therefrom under the following regula- under the
tions : — I*- H. A.

1. The appellant must appeal to the next court of quarter
sessions for the county, division, or place in which the cause
of appeal arose, holden not less than twenty-one days next
after the demand of the rate, or decision of the court
appealed from.

2. He must within fourteen days after the cause of
appeal (a) has arisen, give notice to the other party, and to
the court of summary jurisdiction (6), by whose act he
deems himself aggrieved, of his intention to appeal, and the
grounds thereof

3. And immediately after such notice enter into his
recognizance with two sureties to try the appeal, abide the
judgment of the court, and pay costs (c).

The sub-sections then further enact : —

4. That if the appellant be in custody on entering into
his recognizance, he is to be released.

5. On the hearing of an appeal against a rate, the court
will have powers as to amendment, or quashing the rate,
or assessment, or awarding costs between the parties to the
appeal in like manner as on the hearing of appeals in respect
of poor-rates. And the court may order the amount of rate
appealed on to be collected and carried to account on the
next effective rate, and award costs.

6. In the case of other appeals the court may adjourn
the appeal, and on the hearing confirm, reverse, or modify
the decision of the court of summary jurisdiction, or remit
the matter to that court, or make any other order thereon,
and award costs.

(a) The "cause of appeal" is re Curtis, S. C. 47 L. J. M. C.

the decision of the court :M.\.Bar- 35 ; 3 Q. B. D. 13 ; a. p. 72, 133.
net Rural Sanitary Autliority, (c) The appellant may elect to

45 L. J. M. C. 105 ; 1 Q. B. D. 558 ; appeal under the Sum. Juris.

Jl. V. St. Albans, 35 L. T. 362 ; Act, 1879 ; see ss. 32, 31, where

41 J. P. 6. it is against a conviction.

(i) See Curtis v. Biiss, or In

506

PUBLIC HEALTH ACT, 1875.

Connecting
drain with
sewer.

Drainage
to houses.

Ihiilding
over Bewer
■without
consent.

Keeping
nuisances
on pre-
mise •e.

Removal of
nuisances.

Injuring
meters.

Occupying
cellars.

7. The decision of the court will be binding on all
parties. A special case for the opinion of the superior court
may be stated; sec. 269.

The decision on the special case may be further appealed
on to the House of Lords : Walsall v. Thf London and North
Western Railway Co., 48 L. J. M. C. 65; Judic. Act, 1873,
Bs. 19, 45.

When any person appeals against an order made under
the Act, no liability to any penalty will arise, nor any pro-
ceedings be taken, or work be done under the order, until
the appeal is determined, or has ceased : sec. 99.

The following may le classed as offences under the Act : —

Any person connecting a drain with the sewer, without
complying with sec. 21 of the Act as to the notice to the
local authority of his intention to do so, will be liable to a
penalty of £20 : sec. 21.

No house is to be built or rebuilt within 100 feet of the
public sewer without a drainage communication with the
sewer under the penalty of £50 ; sec. 25.

A building newly erected over a sewer ; or vault, arch, or
cellar under a carriage-way of a street, without the written
consent of the urban authority, may be pulled down ; sec. 26.

It is an offence under the Act to allow a nuisance to be
created on premises, as the keeping of swine ; suffering
waste or stagnant water to remain after notice to remove the
same ; or allowing the contents of a water-closet, privy or
cesspool, to overflow or soak therefrom, under a penalty of
4O5., and of 5s. a day so long as the same continues ;sec. 47..

The neglecting to remove periodically manure or other
refuse matter from premises after notice renders the party
liable to a penalty of 20s. a day duriug the time such
manure, &c., is permitted to accumulate ; sec. 50. See Smith
V. Waghoi-n, 27 J. P. 744.

A person wulfully, or by culpable negligence, injuring any
meter or fittings belonging to the local authority ; or who
fraudulently alters the index of any meter, or prevents any
meter from duly registering the quantity of water supplied,
or fraudulently abstracts or uses w ater of the local authority,
is liable to a penalty of 405. The existence of artificial
means, under the control of the consumer, for causing any
such alteration, &c., will be evidence that the consumer did
fraudulently aflfect the same ; sec. 60. See K. v. White, 22
L. J. M. C. 123.

Any person who lets, occupies or knowingly suffers to be

PUBLIC HEALTH ACT, 1875. 507

occupied for hire or rent a cellar contrary to provisions
of the Act (sees. 71 & 72), will be liable to the penalty of
20s. for every day during which the same is so occupied after
notice in writing from the local authority ; sec. 73. After
two convictions within three months, the premises so
occupied may be ordered to be closed; sec. 75. The passing
the night in a cellar will be an " occupation " ; sec. 74.
The keeper of a common lodging house (a),

1. Receiving a lodger w^here the house is unregistered ;

2. Failing to make report (after schedules have been

furnished him) of persons resorting to the house ;

3. Failing to give notice when any inmate has been

confined to bed with fever or infectious disease ;

will be liable to a penalty of £5 : and in case of a continuing
offence to a further penalty of 40s. a day ; sec. 86.

The conviction of a third offence will disqualify the person
from keeping a common lodging house ; sec. 88. A part of
a house, or a room in a house, may be . considered as
" common lodging house " ; sec. 89.

Under sec. 91, Nuisances are defined to be : —

1. Any premises in such a state as to be a nuisance or Nui!>aTices

injurious to healtii. defined.

It is to be noted that the ^'or " is to be read disjunctively <' Or" to
and not as " and." The nuisance need not be actually be read
injurious to health ; but such a nuisance as may tend to an disjuuc-
injury to health. See GasMl v. Baylet/, 28 J. P. 293, 322 ; ^'''^^y-
30 L. T. 516, Q. B. ; Draper v. Sperring, 30 L. J. M. C. 225 ; [See also
^Great Western Railway v. Bishop, 41 L. J. M. C. 120; L. l\. ^anbicr;/
7 Q. B. 550 ; 26 L. T. 950 ; Malton B. H. v. Malton Manure Io^T'd
Co., 4 Ex. D. 302 ; 49 L. J. M. C. 90 ; 40 L. T. 755 ; 27 W. 97 . t\ L
R. 802 ; R. v. PUlliys, L. R. 1 Q. B. 648. J. M. C. *

211

2. Any pool, ditch, gutter, watercourse, privy, urinal,

cesspool, ashpit, so foul or in such a state as to be
a nuisance or injurious to health.

3. Any animal so kept as to be a nuisance or injurious

to health.

4. Any accumulation or deposit which is a nuisance or

injurious to health. See Scarborough Mayor v.
Scarborough Union, 1 Ex. D. 344.

5. Any house or part of a house so overcrowded as to

(a) See sections 76 — 85. A house : Halligan v. Ganly, 19
non-resident landlord may be the L. T. 2G8.
keeper of a common lodging-

z 2

508 PUBLIC HEALTH ACT, 1875.

be dangerous or injurious to the health of the
inmates, whether or not members of the same
family.

6. Any factory, workshop or workplace (a), not kept in a

cleanly state, or not ventilated in such manner as
to render harmless as far as practicable any gases,
vapours, dust, or other impurities generated in the
course of the work carried on therein that are a nui-
sance or injurious to health; or so overcrowded
while work is carried on as to be dangerous or
injurious to the health of those employed therein.

7. Any fire-place or furnace which does not, as far as

practicable, consume the smoke arising from the
combustible used therein ; and which is used for
the working engines by steam, or in any mill,
factory, dyehouse, brewery, bakehouse, or gas-
works, or in any manufacturing or trade process
whatever ; and
Any chimney (not being a chimney of a private dwelling-
house), sending forth black smoke in such quantity as
to be a nuisance,

shall be deemed to be nuisances liable to be dealt with
summarily in manner provided by the Act : provided, —

First. No penalty will be imposed in respect of any
accumulation or deposit necessary for the effectual
carrying on the business or manufacture if not kept
longer than necessary for that purpose, and the best
available means have been taken for preventing
injury thereby to the public health : Swaine v. Great
Northern By. Co., 33 L. J. Ch. 399; 4 De G. J.
&S. 211.

Secondly. A summons against a person in respect of a
nuisance for not consuming the smoke under sub-sec.
7, will be dismissed if the furnace is constructed in
Buch manner as to consume as far as practicable,
having regard to the nature or trade, all smoke
arising therefrom, and that such furnace or fire-place
has been carefully attended to by the person in charge
thereof.

Duty of It is the duty of the local authority to inspect districts for

local ^jjg purpose of detecting nuisances, and to enforce the pro-

to abate' visions of the Act ; sec. 92. And information may be given

nuisances.

(a) See the Factory &c., Act, 1878, Sch. VI.

PUBLIC HEALTH ACT, 1875. 509

to the local authority of any nuisance by a person aggrieved
or by any two inhabitant householders of the district ; sec. 93.
The local authority, if satisfied the nuisance exists, will
serve, on the owner or occupier of the premises where the
nuisance arises, a notice requiring the abatement of the
same ; sec. 94 : Riddle v. Spear, 40 L. T. 130 ; 43 J. P. 317 ;
St. HelerCs Chemical Works v. St. HelerCs Company, 1 Ex. D.
196 ; 45 L. J. M. C. 150.

If a person served with such notice makes default to Disobe-
comply therewith within the time specified, or if the nuisance, dience of
although abated is, in the opinion of the local authority *^^ ^^
likely to recur on the same premises, a complaint may be penalties,
made to a justice and summons issued thereon calling on the
person to appear before a court of summary jurisdiction,
sec. 95, on the hearing of which summons the court may make
an order both requiring abatement and prohibiting the
recurrence of the nuisance, and impose a penalty not exceed-
ing £5, and make order for payment of the costs ; sec. 96.
The court may prohibit the using a house which is unfit for
habitation ; sec. 97. Any person not obeying an order to
abate a nuisance, or to use due diligence to carry out such
order will be liable to a penalty of 10«. a day during his
default ; and any person knowingly acting contrary to an
order of prohibition will be liable to a penalty of 205. a
day during such contrary action. The local authority may
enter the premises and do whatever may be necessary to
abate the nuisance and recover the costs in a summary way ;
sec. 98 : Brown v. Bussell, L. R. 3 Q. B. 251 ; 37 L. J. M. C.

Where, however, any appeal is made to the quarter Appeal
sessions as provided by the Act, no liability or penalty will against
arise, nor any proceedings be taken, or work done under the ^^**®^-
order luitil after the determination of the appeal, or unless
such appeal ceases to be prosecuted; sec. 99.

In case the nuisance may have been created by two or Proceed-
more persons they may be joined in one proceeding, and *"ss-
one or more of them may be ordered to abate the nuisance
(sec. 255) : Hendon Guard, v. Bowles, 17 L. T. 597; 20 ih. 609.

A private person may make complaint who may be Complaint
aggrieved by any such nuisance as above specified (sec. 105); by private
and without notice : Cooker v. Cardwell (decided on sec. 13, pei«o»-
P. H. A. 1860), L. R. 5 Q. B. 15 ; 39 L. J. M. C. 28.

Costs may be allowed (sec. 104). Costs.

Where a nuisance exists within the district of a local Nuisance
authority, but is wholly or partially caused without the caused

510

PUBLIC HEALTH ACT, 1875.

partly out
of distric .

Restric-
tions on
offensive
trades.

Duty of

local

authority.

Sumnions.

Penalties.

Selling un-
wholesome
meat.

Inspection,

Obstruct-
ing officer

Infcjtious
diseases ;
l»reveation
of.

district, proceedings may be had as if such nuisance was
wholly within their district ; but the summary proceedings
can only be taken before a court having jurisdiction in the
district where the act or default is alleged to be committed
or take place (sec. 108). See also a similar provision as to
offensive trades (sec. 115).

A person carrying on an offensive trade, without the written
consent of the urban authority, such trade being that of a
blood, bone, soap, or tripe boiler, fellmonger, or tallow melter,
will forfeit a penalty of £50, and 40s. a day for the con-
tinuing such offence : sec. 112. And under sec. 114 it is the
dutt/ of the urban authority to make complaint to a justice
where any offensive trade or manufacture is carried on
causing effluvia which is certified to the local autiiority by
their medical officer, or two medical men, or ten inhabitants,
to be a nuisance or injurious to health. That the parties
causing the nuisance may be summoned before a court of
summary jurisdiction ; and on such summons should it
appear that the person summoned had not used the best
practicable means for abating the nuisance, or preventing or
counteracting the effluvia, the person so offending (being the
ov.ner or occupier of the premises, or foreman or other person
employed, or either of them) will be liable to a penalty of
£5 and not less than 40s. ; and on a second and any subse-
quent conviction to a penalty double the amount of the last
preceding penalty, but not to exceed .£200. But the court
of summary jurisdiction may suspend its final determination
as regards the alleged nuisance arising from an offensive
trade if the person summoned undertakes to adopt means to
abate the nuisance, or gives notice of appeal to the com't of
quarter sessions as provided by the Act (sec. 114).

Under sec. 116 the medical officer or inspector of nuisances
may inspect meat, &c., exposed for sale; and under sec. 117,
if such meat, &c., is unfit for food, a justice of the peace may
condemn it, and the person to whom it belonged at the time
will be liable to a penalty of £20 for ever?/ article so con-
demned, or, without the infliction of a fine, to imprisonment
for not more than three months.

A person obstructing or impeding a medical officer or
inspector in the performance of his duty under the Act will
be liable to a penalty of £5 ; sec. 118 ; /Small v. Bichley, 32
L. T. 726.

Sees. 120 to 130 contain provisions in reference to infec-
tious diseases and hospitals, and for the prevention of the
spread of infectious diseases. By sec. 125 a penalty of 40s.

PUBLIC HEALTH ACT, 1875. 511

may be imposed on a person removing an infected person
from a ship to a hospital. A person while suffering from an
infectious disorder wilfully exposing himself without proper
precautions ; or entering a public conveyance without notice
of his condition to the conductor or driver ; so also a person
in charge of such infected person ; or a person who exposes
or lends, without previous disinfection, infected clothes or
bedding, or using due caution, will be subject to a penalty
of £5 ; sec. 126, See Tunbridqe Wells L, B. v. Bisshop, 2
C. P. D. 187; 46 L. J. C. P. 314.

The owner or driver of a public conveyance who may neg-
lect to disinfect a public conveyance which has to his know-
ledge conveyed an infected person, will be subject to a
penalty of £5 ; sec 127.

A person, including the keeper of an inn, knowingly Letting in-
letting a house, room, or part of a house, in which a person fections
has been suffering from a dangerous infectious disorder, lio^^^es.
without having the same and the articles therein liable to
retain infection, disinfected to the satisfaction of a legally
qualified medical practitioner as certified by him, will be
subject to a penalty of £20 ; sec. 128.

A person making a false statement when questioned by a False state-
person negociating for the hire of a house or lodging as to ments as to
the fact of there being, or within six weeks previously having infectious
been therein any person suffering from an infectious disease, °" ''*
will.be liable to a penalty of £20, or to imprisonment, with
or without hard labour, for a period not exceeding one
month ; sec. 129,

For the prevention of epidemic diseases the Local Govern- Violating
ment Board may (sec. 139) authorise two or more local orders of
authorities to act together, and may prescribe a joint action ^- ^- ^'
of such authorities; and by sec. 140, any person wil-
fully violating such regulations, or obstructing any per-
son acting under their authority, will be liable to a penalty
of £5.

The local authority may make bye-laws under their com- Bye-laws,
mon seal; sec. 182, which, under sec. 183, may impose penal-
ties not exceeding 40s. and a copy of any bye-laws, sec. 186,
made by a local authority (not being the council of a
borough), signed and certified by the clerk of the authority,
will be evidence of the bye-laws. See B. v. Bose, 24 L. J.
M. C. 130.

Defaulting officers may be summarily proceeded against, Defaulting
and subject to imprisonment for six months (sec. 196). otticers.

The proceedings for the prosecution of offences under the Summary

512

ROGUES AND VAGABONDS.

proceed*
inss.

Juristlio-
tiou of J J.

Form of
notices.

Service of
notices.

Act will be as directed by the Summary Jurisdiction Acts
before a court of summary jurisdiction ; sec. 251.

But such practice is confined to cases in which the court
is acting judicially ; it does not apply where the court is
acting ministerially ; proceedings therefore under sec. 256,
for the summary recovery of rates, are not within the Sum-
mary Jurisdiction Act, 1879, s. 47, nor will Jervis's Act apply.
B. V. Price, 49 L. J. M. C. 49.

Justices may act, although they may be members of the
local authority and ratepayers, or liable to contribute to or
be benefited by, the rate or fund out of which the expenses
to be incurred under the Act may be defrayed ; sec. 258.

But such justice will be disqualified from acting should
he be so substantially interested in the result of the hearing
as to make it likely that he would have a real bias in the
matter: B. v. Burnley J J., Ex parte King, 51 L. J. M. C.
[ ], in which B. v. Gibbons, 6 Q. B. D. 168, is dissentied
from, and B. v. Milledge, 48 L. J. M. C. 139; 4 Q. B. D.
332, is commented on. See also B. v. Meyer, 1 Q. B. D.
173 ; B. V. Handsworth, 8 Q. B. D. 383.

Notices and other documents under the Act may be in
writing or print, or partly so ; and those of the local autho-
rity may be authenticated by the signature of the clerk, sur-
veyor, or inspector of nuisances ; sec. 266.

Notices, orders, or other documents may be served under
the Act by delivery thereof at the residence of the person to
whom they are addressed ; or when addressed to the owner
or occuper of premises by delivering the same to some person
on the premises ; or if no person on the premises, then by
fixing the same on some conspicuous part of the premises.
They may also be served by post by pre-paid letter, and if by
post, shall be deemed to have been served at the time when
the letter w^ould be delivered in the ordinary course of post,
and it will be sufficient to prove that the letter had been
duly posted. A letter, required to be given to the owner or.
occupier, may be addressed by the description " owner," or
*' occupier " of the premises (naming them) ; sec. 267.

KOaUES AND VAGABONDS.

The dissolution of the monasteries by Henry VIII. threw
on the public bounty numerous beggars, who had before then
obtained alms at those institutions. In 39 Elizabeth (1596)
an Act w^as passed for suppressing the mischief; and even

ROGUES AND VAGABONDS. 513

the ancient Bards, described as " minstrels wandering abroad,"
were included amongst " rogues, vagabonds, and sturdy
beggars " (a).

The Act 5 Geo. 4, c. 83, classes those persons, as, 1. Idle 5 Oeo. 4,
and disorderly persons. 2. Rogues and vagabonds. 3. In- ^- ^^•
corrigible rogues.

The following are deemed to be " idle and disorderly per- Idle and
sons," and who may be committed to the house of correction disorderly
with hard labour for not exceeding one month : — persons.

1. Every person being able wholly or in part to maintain
himself or herself, or his or her family, by work or by other
means, and wilfully refusing or neglecting so to do, whereby
he or she, or any of those whom he or she may be legally
bound to maintain (6), shall have become chargeable to any
parish, township, or place.

2. Every person returning and becoming chargeable in any
parish, <kc., from whence he or she had been legally removed
by order of justices, unless he or she produce a certificate
of acknowledgment of settlement.

3. Every petty chapman or pedlar wandering abroad and
trading without a licence or authority.

4. Every common prostitute wandering in the public
streets or highways, or in any place of public resort, and
behaving in a riotous and indecent manner.

5. Every person wandering abroad, or placing himself or
herself in any public place, street, highway (c), court, or
passage, to beg or gather alms, or causing, or procuring, or
encouraging any child or children so to do.

6. Every person asking alms under a certificate, or other

(^a) Dr. Ball, a satirist of the maintenance for her children,
day, wrote of the bards as having cannot be convicted for desert-
become ing her children and leaving

" Beggars by one consent, "iT" chargeable to the parish :

AndJogue/byAct o, Pa.Ua- ^tY^'li' ^^'^71

A man is not bound to maintain

Alderman Watts, of Rochester, his wife who has left him, and is

at the same time, excluded from living in adultery : H. v, Fli7itan,

his charitable bequest for the 1 B. & Ad. 227 ; nor if she leave

daily relief of " The Seven Poor him by reason of his ill-usage :

Travellers '" (a charity still carried Flannagan v. Bishop Wearmouth

out at Rochester) all "rogues, {Overseers), 27 L. J. M. C. 46.

vagabonds, and proctors ; " — the The warrant must state an actual

'* proctor "being then an itinerant chargeability : R. v. Hall, 3

priest. Burr. 1636.

(li) A wife, deserted by her (c) See Ex parte Timson.post,

husband, and having no means of p. 513 n. (h).

z 3

514 ROGUES AND VAGABONDS.

instrument prohibited by the Act, or applying for relief
having money in their possession or control. See 11 <k 12
Vict. c. 110, s. 10.

Rogues and The following, described as rogues and vagabonds, on con-
\aga,jon s. yj^^JQj^ may be sentenced to not exceeding three months im-
prisonment with hard labour : —

1. Every person committing any of the following offences
after having been convicted as an idle and disorderly person.

2. Every person pretending or professing to tell fortunes, or
using any subtle craft, means, or device by palmistry (a), or
otherwise, to deceive or impose on any of Her Majesty's
subjects.

3. Every person wandering abroad or lodging in any barn
or outhouse, or in any deserted or unoccupied building or in
the open air, or under a tent, or in any cart or waggon, not
having any visible means of subsistence, and not giving a
good account of himself or herself.

4. Every person unlawfully exposing to view, in any street,
road, highway, or public place, any obscene print, picture,
or other indecent exhibition ; or exposing, or causing to be
exposed, to public view in the window or other part of any
shop or other building situate in any street, road, highway,
or public place, any obscene print, picture, or other inde-
cent exhibition, shall be deemed to have wilfully exposed
such obscene print, picture, or other indecent exhibition to
public view within the intent and meaning of the Act. See
R. V. Dudgale, 22 L. J. M. C. 50 ; 1 & 2 Vict. c. 38, s. 2.

5. Every person wilfully, openly, lewdly, and obscenely
exposing his person in a public street, road, or public high-
way, or in view thereof, or in any place of public resort (6)
with intent to insult any female.

6. Every person wandering abroad and endeavouring by
exposure of wounds, or deformities, to obtain or gather alms.

7. Every person going about as gatherer or collector of
alms, or endeavouring to procure charitable contributions of
any nature or kind, under any false pretence.

(a) The pretence that the per- lead a wandering and vagabond

sons hold communion with in- life : ih.

visible spirits is a device by As to the form of the conviction,

palmistry, and within this sec- see R. v. Slade, 35 L. T. 911 ;

tion : Monli v. Hiltin. 2 Ex. D. Edlin, Q. C, Middlesex Sessions.

268 ; 46 L. J. M. C'. 163 ; 36 See also S. C, 2 Q. B. D. 516 ; 46

L. T. 66 ; 25 W. K. 373. It is L. J. M. C. 225 ; 36 L, T. 402 ;

not necessary to convict under 25 W. E. 610.

this section that the party should (J) See note to item 14.

r

ROGUES AND VAGABONDS. 515

8. Every person running away and leaving his wife, his or
her child or children (a) chargeable, or whereby she or they
or any of them shall become chargeable to any parish, town-
ship or place : see B. v. Flintaii, 1 B. & Ad. 227 ; Cambridge
Guardians v. Farr, 30 L. J. M. C. 241 ; 10 C. B. N. S. 99 ;
see also Uorley v. Rogers, ante, p. 196, Tit. Constable.

9. Every woman neglecting to maintain her bastard child,
being able wholly or in part so to do, whereby such child
becomes chargeable to any parish or union : see 7 & 8 Vict.
c. 101, s. 6.

10. A person, under sec. 53, ih., being received into an
asylum for houseless poor, and wilfully giving a false name,
or making a false statement, or who shall have given on two
or more different occasions when received in any such
asylum, such person not having changed her name by
marriage.

11. Under sec. 55, ih. Every poor person returning to
and becoming chargeable in an asylum for houseless poor of
any district after removal from any parish in such district,
will be deemed to have returned and become chargeable
without a parish certificate.

12. Every person having in his or her possession or
custody any picklock, key, crow, jack, bit, or other imple-
ment with intent feloniously to break into any dwelling-house,
warehouse, coach-house, stable, or out- building, or being
armed with any gun, pistol, hanger, cutlass, bludgeon, or
other offensive weapon, or having upon him or her any
instrument with intent to commit any felonious act :
5 Geo. 4, c. 83, s. 4. The implements must be upon the
person when apprehended and so stated in the conviction :
see R. V. Brown, 8 T. R. 26.

13. Any person being found in or upon any dwelling-
house (6), warehouse, coach-house, stable, or out-house, or
in an enclosed yard, garden, or area, for any unlawful
purpose.

14. Every suspected person or reputed thief frequenting
any river, canal, or navigable stream, dock or basin, or any
quay, wharf or warehouse near or adjoining thereto, or any
street, highway (c), or any avenue leading thereto or any place

(a) This has reference only to the master's provisions without

legitimate children : R.y. Maude, his knowledge or consent, mayor

2 Dowl. N. S. 58. naay not be on the premises for

(h) A person found in a house an unlawful purpose : Kirkin v.

at night in company with the Jenkins, 32 L J. M. C. 140.

servants of the house consuming (c) The conviction should show

;if) ROGUES AND VAGABONDS.

of public resort (a) or any avenue leading thereto, or any street
or any highway, or any place adjacent to a street or highway,
with intent to commit a felony (sec. 4, 5 Geo. 4, c. 83), and
in proving the intent to commit a felony, it shall not be neces-
sary to show that the person suspected was guilty of any
particular act or acts tending to show his purpose or intent,
and he may be convicted if from the circumstances of the
case, and from his known character as proved to the justice
or court, it appears his intent was to commit a felony.
Prevention of Crimes Act, 1871, 34 & 35 Vict. c. 112, s. 15.

15. By the Vagrant Act Amendment Act, 1873, 36&37
Vict. c. 38, repealing by sec. 5 the Vagrant Act Amendment
Act, 1868, 31 & 32 Vict. c. 52, it is enacted by sec. 3 : Every
person playing or betting by way of wagering or gaming in
any street, road, highway, or other open or public place, or
in any open place to which the public have or are permitted
to have access, at or with any table or instrument of gaming,
or any coin, card, token, or other article used as an instru-
ment or means of such wagering or gaming, at any game or
pretended game of chance, shall be deemed a rogue and
vagabond within the true intent and meaning of 5 Geo. 4,
c. 83, and as such may be convicted and punished under the
provisions of that Act, or in the discretion of the justice or
justices trying the case, in lieu of such punishment by a
penalty for the first offence not exceeding 40s., and for the
second or any subsequent offence not exceeding £5. The
Act of 1873 is to be read as one with 5 Geo. 4, c. 83, by
which, sec. 4, every person playing or betting in any street,
road, highway, or other open or public place, at or with any
table or instrument of gaming at any game or pretended
game of chance, is made punishable as above noted as " under
the class of" rogues and vagabonds, and with imprisonment
with hard labour for any time not exceeding three months.

The playing a pretended game of chance, as the three
card trick, called " odd man," in a railway-carriage while
travelling on the " line " would be an ofifence under this

the highway led to or adjoined to («) A railway station : ^x

a river, canal, or place of public parte Davis, 26 L. J. M. C. 178 ;

resort, &c. : Ex parte Timson, an alehouse : Cole y. Coulton, 29

L. R. 5 Ex. 257 ; 22 L. T. 614 ; L. J. M. C. 125 ; a private house

89 L. J. M. C. 129 ; 18 W. R. 849 ; where a sale by auction is going

where the case In re JoTies, 7 Ex. on : Sewell v. Taylor, 29 L. J.

586 ; 21 L. J. M. C. 116, is ad- M. C. 30 ; Ex parte Cross, 26

hered to, and R. v. Bron-n, 17 Q. L. J. M. C. 28 ; 1 H. & N. 651,

B. 8.^3; 21 L. J. M. C. 113, not are each deemed public places,
followed.

ROGUES AND VAGABONDS. 517

clause, and the conviction should allege that the carriage was
"then and there" used and travelling on the railway; see
Ex parte Freest(me, 25 L. J. M. C. 121.

So an omnibus is a public place while used for travelling ;
as Alderson, B., said : " A person in an omnibus may be said
to be in the street," ib. : and R. v. Holmes, 22 L. J. M. (a
122; 1 Dear. C. C. 207; In re Jones, 7 Ex. R 586;
21 L. J. M. C. 116.

See also Ex parte Timson, supra, p. 513 n. (6).

Depositing a half sovereign as a bet on a dog-race is not
" betting with a coin as an instrument of gaming at a game
of chance," decided on the repealed Act, 31 &, 32 Vict. c. 52,
s. 3. Hirst V. Moleshury, L. R. 6 Q. B. 130; 40 L. J. M. C.
76 ; 23 L. T. 555.

Tossing with halfpence is not within the section : Watson
V. Martin, 34 L. J. M. C. 50 ; 11 L. J. 372.

Under sec. 5 of 5 Geo. 4, c. 83, the following are deemed Incorri-

to be incorrigible rogues : — gible

rogues.

1. Every person breaking or escaping out of any place of

legal confinement before the expiration of the term for which
he or she shall have been committed, or ordered to be confined
by virtue of this Act.

2. Every person committing any offence against this Act,
which shall subject him or her to be dealt with as a rogue
and vagabond, such person having been at some former time
adjudged so to be and duly convicted thereof (a).

3. And every person apprehended as a rogue and vaga-
bond, and violently resisting any constable or other peace
officer so apprehending him or her, and being subsequently
convicted of the offence for which he or she shall have been
so apprehended, shall be deemed to be an incorrigible rogue,
and such offender may be committed to the house of correction,
to remain until the next quarter sessions, and kept to hard
labour during such period. And by sec. 10, such person
the court will examine into the circumstances of the case,
and may further imprison the offender with hard labour for
a time not exceeding j;>ne year from the time of making
such order, and if a male, the punishment of whipping may
be ordered (6).

(a) Lord Lyndhurst, when and vagabond on a second

Attorney-General, was of opinion oSEence of a like nature : see

that a person once convicted, Burn's Justice,
under the previous Vagrant Acts (&) All couvictions under this

as a rogue and vagabond was, sec. are to be returned to the

under the above words to be Q. S. sec. 17.
considered an incorrigible rogue

518

SPECIAL CASE.

The appeal. Sec. 14 of 5 Geo. 4, c. 83, gives a general appeal to the
quarter sessions to all persons aggrieved by any act or deter-
mination under the statute done or made by any justice
under the Act ; but when the sentence is one of imprison-
ment, the form of appeal will be that directed by the Sum-
mary Jurisdiction Act, 1879, which see infra, ss. 19, 31.

Costs. Although by sec. 14 the justices are to be made the sole

respondents, the person who may be the informant, but not
to be made a party to the appeal, is deemed the real respon-
dent as having set the law in motion, and held to be liable
for payment of the costs. R. v. Smith, 29 L. J. M. C. 216.

Appellant By 1 Vict. c. 38, a warrant may be issued by the quarter

not ap- sessions for the apprehension of any person not appearing to

pearing at prosecute his appeal under 5 Geo. 4, c. 83.

sessions

may be

arrested.

SPECIAL CASE.

Sessions
not to
delegate
authority.

Reference

to judge of
assize.

The sessions cannot delegate its judicial authority (a).
Bac. Abr. "Offices" (A): R. v. Totmsend, 16 Vin. Abr. 417;
2 Nol. P. L. 4 Ed. 468 ; R, v. Newmarket Railway Co., 15
Q. B. 692; 19 L. J. M. C. 241.

Formerly, when the justices doubted on a point of law aris-
ing on an appeal before them, they submitted a statement of
the facts for the opinion of the judge of assize in accordance
with the terms of their commission ; — " if a case of difficulty
shall happen to arise let judgment in no wise be given thereon
before you unless in the presence of one of our justices of the
one or the other bench, or of one of our justices of assize in
the county." The practice was to adjourn the sessions that
the judge of assize might be consulted, .and then, in con-
formity with his advice, judgment was given (6) : Lamb.
Eiren. 35 — 38 ; to carry out this reference to the judges no
certiorari was necessary; Alderson, B. : R. v. Gamble, 16
M. it W. 397.

(<7) The sessions may refer
matters before them to referees
or arbitrators to report thereon
in aid of their judgment, but not
for final decision : see 12 & 13
Vict. c. 45, s. 13 ; ^. v. IJiweJiousr,
19 Vin. Abr. 348. See tit.
*' Arbitration.'^

(&) The sessions did not always

refer the whole case to the judge
of assize ; sometimes only a par-
ticular point, reserving the whole
matter for themselves : per Pro-
byn, J., in H. v. Ted/ord, Burr.
S. C. 57 (A. D. 1790) ; and which
Lord Hardwicke designated as an
"impertinent reference," S. C,

SPECIAL CASE. 519

Traces of the practice of consulting the judge are as late
as 1734. In H. T. 11 Will. 3 (1699), an attempt was made
to reserve a case for the opinion of the Court of King's
Bench, which the court refused to entertain, and remitted it
to the judge of assize. In the time of Lord Hardwicke
(B. V. Tedford, 2 Burr. S. C. 57) the modern practice of
stating a special case existed, but the old practice was not
completely superseded. In 1807, the time of the 1st
Ed. of Nolan's Poor Laws, the modern practice had been
fully brought into adoption, and the question whether a
case was one of difficulty or not, fit to be reserved for the
opinion of the Court, was determined by the sessions ; and
if it were one of difficulty, a case was stated for the opinion
of the superior court.

This reference to the judge was clearly of a consultative Re!"erence
character, and was not a parting with the jurisdiction ; in consulta-
fact the sessions were not bound to adopt the opinion of the ^'^^^'
judge, and the decision eventually come to by the sessions,
was liable to be reviewed by the superior court : Crueden v.
Leyland, 2 Str. 903 ; B. v. Brightvjell, 3 Keb. 464 ; Stanlock
V. Bampion, ib., 674. And see B. v. Tedford (supra), the
court exercising the inherent right to correct the errors of
other courts: Co. Litt. 4 Inst. 71; Bac. Abr. "Court of
K. B." (A) 3; 3 Bl. Com. 42 (a).

But this practice of consulting the judge of assize has
long since fallen into abeyance.

The old forms of the orders of sessions set out the recitals Old forms
at length on which the order was based : B. v. St. Luke's ^^ ^- ^*
Hospital, 2 Burr. 1053; B. v. St. Bartholomew-tJie-Less, 4 id.
2435; B. \. St. PauVs, Convent Garden, Cald. S. C. 158;
and, during the last century, those forms were used simul-
taneously with the more modern one of stating the facts in
a special case which accompanied and was attached to the
order of sessions : see B. v. Newtown, 1 Ad. & E. 238 ; 3
L. J. M. C. 79.

But a general practice has grown up of obtaining the Present
opinion of the courts by means of special cases ; and it is practice,
now the practice for the sessions to hear the evidence on an
appeal, and having come to a decision upon them, should

(rt) On a reference to the judge not so where the parties had con-
on the sole action of the sessions, sented to the reference : li. v.
the Court of King's Bench would Nailand, Burr. S. C. 793 ; see
entertain the question of quash- also R. v. Alverstone, Holt, 507 ;
ing the order of sessions : R. v, R. v. Moseley, 2 Burr. 1040.
Nurthamj)ton, Cald. S. C. 30 ; but

520 SPECIAL CASE.

they entertain any reasonable doubt on their determination,
to state the facts, as found by them, in the form of a special
case on which to ask the opinion of the superior court ; the
sessions to make their order a speaking order, stating their
decision provisionally in the alternative, and leaving the
ultimate event to depend on the judgment of the court : see
Lord Denman's remarks in R. v. Kestevin, 3 Q. B. 810 ; 13 L.
J. M. C. 78 ; R. v. Stoke-upon-Trent, 5 Q. b/303 ; 13 L. J.
M. C. 41—43 : see also R. v. Pilkington, 5 Q. B. 662 ; R. v.
Asliton nigh- Birmingham, 12 Q. B. 26 ; 19 L. J. M. C. 17.
Q. S. acting Without such special case being granted by the sessions
within ^|jg court has no power to review their decision: R. v. Allen,
tioT-aB. 1^ ^^^*' ^^^' ^- ^- Carnarvon JJ., 4 B. & Aid. 86; R. v.
t;an only Cheshire J J., 8 A. & E. 398 ; Wildes v. Russell, L. R. 1 C. P.
actonS. C. 722 ; if the sessions act within their jurisdiction ; see R. v.
2^he Cheltenham Commissioners, 1 Q. B. 467 ; R. v. TJic
Sheffield Ry. Co., 11 A. & E. 194 ; Colonial Bank of Aus-
tralia v. Willan, 43 L. J. P. C. 39 ; 5 L. J. P. C. 417;
30 L. T. 237 ; Ex parte Bradla.ugh, 3 Q. B. D. 509 ; R. v.
Bolton, 1 Q. B. ^Q ; R. v. Warwickshire, E. & B. 837 ;
25 L. J. M. C. 119 ; R. v. Hyde, 21 L. J. M. C. 94 ; R. v.
St. AlbarCs, 22 L. J. M. C. 130; where, if the sessions do
not act within their jurisdiction, their proceedings may be
quashed under writ of certiorari.
Granting The court will not compel the sessions to grant a special
the S. 0. gg^QQ . ^jjg granting the case is entirely in their discretion :
Iv^tT^if^ ^^ P^''^^ t/aTW??, 9 Dowl. P. C. 120; R. v. Oidton, Burr.
' S. C. 64; R. V. Preston-on-the-Hill, Burr. S. C. 74.
But the granting the special cases by the sessions has
always been considered by the courts as a wholesome
and useful practice. In R. v. Preston-on-the-Hill, it was
remarked by Lord Hardwicke, " that it was a thing much to
be censured and discountenanced, when an inferior jurisdic-
tion endeavoured to preclude the parties from the oppor-
tunity of obtaining the opinion of the superior court ; " and
Lord Denman, C J., in R. v. The West Riding (^Warmsworth
V. Doncaster), 1 A. & E. 606, remarked that the sessions
^Vhere could not do better than grant a case if they doubted the
Q. S. doubt legality of their own decision ; but, as Bayley, J., said, in
the law; j^ ^ Parley Abbey, Inhabitants, 14 East, 285, they ought
not to be induced to send up a case if they had no doubt
upon the question in their own minds. A case should not
but not on be stated on a point which has been already decided ; the
decided court would refuse to entertain it : R. v. St. John Evangelist,
pom s. 2 ixxv. 46 ; nor will the court receive a case which has not

SPECIAL CASE. 521

been first fully heard and determined by the sessions : R. v. Facts must
Sutton Goldfield, 29 L. T. 840; 9 L. K. Q. B. 153, and be found hy
43 L. J. M. C 57 ; eo nom. R. v. London and North-Western Q- ^•
Ry. Co. See also remarks of Cockburn, C. J., in Ex parte
Curtis, 47 L. J. M. C. 35 ; 3 Q. B. D. 13 ; R. v. Kent J J.,
41 J. P. 263.

It is only in rare instances, and under peculiar circum- Mandamus
stances, when a case has been granted, that a mandamus to state
has been issued to justices to state a special case ; see R. v. case re-
Efingham, 2 B. & Ad. 393 (n.) ; R. v. Pembrokeshire JJ.,
2 ib. 391. The mandamus was refused where the sessions
had declined to sign a case which omitted in its opinion a
material point : Ex parte Jarvin, 9 Dowl. P. C. 120 ; R. v.
Suffolk J J., 1 Dowl. P. C. 168.

As to a special case stated under the Highway Acts, see
R. V. Shiles, 1 Q. B. 919 ; ie. V. Phillips, 35 L. J. M. C. 217 ;
L. R. 1 Q. B. 648.

The court will entertain a case stated on an appeal against S. C. on a
a conviction: R. v. Allen, 15 East, 333; but not a case convicti'^u ;
reserved upon the trial of an indictment at sessions : R. v. "° "^*^ ^^ '
Salop J J., 13 East, 95 ; Duncan v. Turner, N. of C. (1881)
p. 82 ; see R. v. Scaife, 21 L. J. M. C. 221.

When a case has been granted on the application of the Party
appellants, who abandon their remedy thus sought, an ap- cannot have
plication by them for a mandamus to the sessions to enter °^andamus
continuances will be refused : the court will not permit the
party to have a double remedy. R. v. W. Riding J J., 1 A. & E.
606 ; R. V. Suffolk J J., 6 A. & E. 109; i?. v. Northamptonshire J J. ,
id., Ill (n.) ; see R. v. West Riding J J., 11 L. J. M. C. 34.

But where the attempt to state the case failed, the counsel, not Where the
agreeing on the facts and terms on which it should be stated, staUngS. c.
and the order made for the case being merely conditional, and „iandaraus
not a final decision, a mandamus to enter continuances was to hear,
granted. R. v. Suffolk J J., 1 D. P. C. 163 ; id. 484. The
questions in those cases, as to the certiorari, would not now
arise ; and as in R. v. Staffordshire J J., 7 E. & B. 939 ; 1
D. P. C. 163 ; R. v. Sussex JJ., 1 M. & F. 734 ; R. v. Kaye,
1 D. & K 436 ; 5 A. & E. 112 ; S. J. A. 1879, s. 40.

It was held in R. v. Bolton, 7 Q. B. 387, that where an Removal of
order of removal was quashed on a matter oi form there was pauper
nothing final in their decision, and the respondents having \ ^^1 ^" j
obtained an order for a special case on the point, and taking
no steps to state it, the respondents were not precluded from
removing the pauper a second time, the respondents being
considered to have abandoned their case.

522

SPECIAL CASE.

Judgment
on case
final with
Q. S.

Jurisdic-
tion of
Appellate
Court.

Decision
** manda-
tory."

The judgment of the superior court on the special case
became the final judgment of the (Jourt of Sessions, to be
adopted and entered of record by them. R. v. St. Peter''s,
Droitwich, 9 Q. B. 886, 935 ; 26 L. J. M. C. 179 ; see also
R. V. Staffordshire J J., 7 E. & B.

The effect of stating a special case has been much con-
sidered recently as affected by the Judicature Act, 1873, and
whether the decision of the Court of Queen's Bench on it was
" consultative " or "mandatory" : and, further, whether there
was an appeal on it to the Appellate Court from the deci-
sion of the Queen's Bench. These points were raised and
decided by the House of Lords in Walsall v. The L. d' S.-W.
Ri/. Co., 48 L. J. M. C. 65 ; H. L. App. Ca. 30 ; 39 L. T.
453 ; 27 W. R. 189 ; reversing the judgment in S. C. 47
Q. B. 711 ; 3 Q. B. D. 449 : 38 L. T. 665 ; 26 W. E. 705.

It was held in that case that the decision of the Superior
Court was " mandatory," and not " consultative," and came
within the word '* order" in the 19th section of the Judica-
ture Act, 1873, and was not included within sec. 45. Lord
Penzance said : " the action of the Court of Queen's Bench
cannot be consultative merely if the result of what was done
was to make an order which dealt with the proceeding itself,
and put an end to the very order of the quarter sessions.
If. the action of the Queen's Bench in the matter was purely
consultative, it would follow that they would remit, in some
form, the result of that advice and consultation^ to the court
of quarter sessions, and that that court would act upon it.
But the certiorari bringing up the proceedings fjut an end to
all further jurisdiction in the court of quarter sessions to
deal with the matter." The judges, then, of the Queen's
Bench could either quash, or let the proceedings stand,
but the magistrates in quarter sessions were fundi officio,
they could no longer deal with the matter either by way of
affirming or of quashing the order (a). It is then abun-
dantly made out that, according to the old practice of the
court, the function of the Queen's Bench was to consider an
order of the quarter sessions upon the face of it, and to deal
with the facts stated as they there appeared, and apply the
law to them.

In a special case stated by the sessions under the Public

(a) In a special case stated on
a question of rating the Court of
Queen "s Bench cannot alter the
rate, but the sessions subse-

quently make any necessary
alteration of the rate in accord-
ance with the court's decision.

SPECIAL CASE. 523

Health Act, 1875, sec. 269, sub-sec. 7, which gives statut-
able ijoioer to the sessions, if they think fit, to state the facts
of an appeal under the statute specially " for the determina-
tion of a superior court," the Court of Appeal held that the
statement of such case was an appeal within the 45th sec.
of the Judicature Act, 1873, and not to the Q. B. D. in the
exercise of its well known jurisdiction over inferior courts,
and that the decision of the Q. B. D. was final upon that
court refusing leave to appeal. Hinton v. The Swindon
New Town Local Board, 49 L. J. Q. B. 522 ; 42 L. T. R.
614; 28 W. li. 80 (Lord Coleridge, L. C. J., Brett and
Cotton, L.J J.).

But in R. V. Savin, 6 Q. B. D. 309, in an appeal under the
Highways and Locomotives Amendment Act, 1878 (41 & 42
Vict. c. 77), s. 23, which contains no such clause as that
above referred to in (Public Highway Act, s. 269, sub-s. 7),
the Court of Appeal (Lord Selborne, L. C, Baggallay and
Brett, L.JJ.) held that there wa^ the right of appeal to the
Apj)ellate Court without the leave of the court below ; follow-
ing the suggestion thrown out by Earl Cairns (L. C), in
Walsall V. t)ie London and North- Weste7'n Railway {supra).

The distinction seems to be, that where the Court of Q. B. act-
Queen's Bench is acting in its inherent right as a Crown ^^S a-s the
court, to review a decision of the quarter sessions or any n^^'^T
other court, it is then acting not as a divisional court within
the meaning of the 45th section of the Judicature Act,
1873, or under any statutable power, but is exercising its
common law jurisdiction ; and its rule or order then made, is
an order, in the first instance, within the 19th section of the
Judicature Act, 1873, and no leave to appeal to the Appel-
late Court is then necessary. In other instances, as in
cases stated under the Jervis's Acts, or Baines' Act, or the
other Acts giving the statutable power to state a case for
the opinion of a superior court, and for the statement of
which case no writ of certiorari would be required, leave to
appeal from the divisional court would be necessary.

Where the statute had taken away the certiorari, no Certiorari
special case could be stated even with the consent of the abolished
parties : R. v. Chantrell, 44 L. J. M. C. 94 ; 10 L. R. Q. B. J^^^ |- ^•
587 j 33 L. J. 305 ; and Patteson, J., remarked in reference
to a special verdict : " I cannot see how the parties can give
us any power which the law itself does not give." Sanders v.
Vanzeller, 4 Q. B. 276 ; see also R. v. Middlesex J J., 8 D. &
R. 117. R. V. Chantrell may be considered as overruling R.
V. Dickenson, 7 E. & B. 831 ; see also R, v. Michaelstone

524

SPECIAL CASE.

Clerk of
the Peace
to trans-
mit S. C.
direct to
Grown
Office.

Costs.
Rules of
Court,
1880, Ord.
LXII.
r. 55.

Vedoes, 2 Nol. 558 ; R. v. Sussex JJ.^ ih. 558 (see ante^
" Certiorari ").

But now, section 40 of the Summary Jurisdiction Act,
1879, enacts that "a writ of certiorari or other writ shall
not be required for the removal of any conviction, order, or
other determination in relation to which a special case is
stated by a court of general or quarter sessions for obtain-
ing the judgment or determination of a superior court."
(See sup. sec. 269, P. H. A. 1875.) This provision will re-
move altogether the difficulty raised in R. v. Gliantrell, and
the obstacle of the writ of certiorari being taken away being
removed by its abolition as to cases from sessions ; the ses-
sions will now have no impediment in its way to state a
special case in all appeals whether the particular statute has
taken away the certiorari or not. See Clarke v. The
Alderhury Union, 50 L. J. M. C. 33—35 (tit.^' Certiorari:'

In the case of Clarke\. Alderhury Union, a suggestion was
thrown out that in lieu of the case from sessions being
removed by certiorari, the clerk of the peace should transmit
it direct to the Crown Office. That course would, in effect,
result in keeping the proceeding on the crown side of the
court, and, as before, retaining it, on that side, indepen-
dent of the general jurisdiction of the other divisions of the
Q. B. D., as in the case of Hinton v. TJie New Town L. B.,
sup. p. 520.

The old practice was for recognizances to be entered into
providing for costs before the issue of the certiorari. But
application may now be made for costs under the Rules of
Court, 1880, Order LXII., rule 55, by which the Rules of the
Superior Courts (Order LV.) are made applicable to all civil
proceedings on the crown side of the Q. B. D. Rule 59,
Ord. LXII., was not intended to be confined to the three pro-
ceedings, of a quasi criminal nature, therein mentioned,
mandamus, quo warranto, and prohibition, which are to be
deemed as civil proceedings. That rule was so framed ex
abundanti cautela ; and the general policy of the order is
that the costs, on the hearing the special case, shall be in the
discretion of the Court. See Clarke v. The Alderhury Union
{su2^ra).

There will, of course, remain many instances in which the
certiorari may still issue to the sessions, or to any other
jurisdiction, to bring up orders, or proceedings, for review,
independently of any special case, in which the old practice
will still prevail, as where the inferior court has acted with-
out, or in excess of jurisdiction.

SPECIAL CASK. 525

The Summary Jurisdiction Act, 1879, having removed the Effect of
necessity of issuing the writ of certiorari to bring up a case g®^' .
stated i3y quarter sessions, all those cases which have been i879.
determined in the procedure under 13 Geo. 2, c. 18, s. 5,
that the writ should be obtained within six months, and
mider 5 Geo. 2, c. 19, as to recognizances will not now
apply ; and it will, therefore, result in this, that when a case
has been granted, the judgment of the sessions will not
become absolute after the expiration of the six months as in
in R. V. Staffordshire JJ., 26 L. J. M. C. 179; 7 Ex. B.
935. There is now no limit of time within which the order Time not
of sessions will become absolute by the laches of either party, ^lo^ limited
Upon a case being granted the sessions virtually say that the jnontj^g for
appeal shall be adjourned over until the decision is made on it ; s. C.
and should the clerk of the peace omit to enter the adjourn-
ment or the appeal be respited, the omission may at any
time be supplied under a mandamus to enter continuances :
E. V. Suffolk, 1 D. P. C. 163, 167, citing R. v. Sussex, 2
Bott. pi. 751, 5th ed.

When the parties cannot agree on the facts to be stated in Where
the case, the course will be to apply to the chairman of the parties can-
court to state one for them, and on his signing a case and ci^airman
transmitting it to the Queen's Bench Division the case will be to state
received as a conclusive statement : see R. v. Matlock, 5 B. case.
k Ad. 883. Should it be agreed at sessions that a case
should be stated for a superior court without going into all
the facts before the sessions, it is usual to arrange, that
should the counsel not agree to the facts, the case should be
referred to a barrister to be settled as on arbitration.

The sessions are limited in the statement of a case to the Limit of
question of law arising on the facts found by them : R. v. statements
Yeomans, Crompton, J., 1 L. T. 370; they cannot make the ^0^^;^'/°
superior court a court of appeal on a question of fact : Har- [^^^
graves v. Taylor, 32 L. J. M. C. Ill {per Blackburn, J., 112) ;
Newman v. Baker, 8 C. B. 200 ; Belasco v. Hannant, 31 L. J.
M. C. 225 ; Taylor v. Oram, ib. 252 ; see also R. v. Raffles, 45 L.
J. M. C. 61 ; Cornewell v. Sanders, 32 L. J. M. C. 6. Nor should
they ask the court to find any fact from evidence stated ; see
Lord Kenyon's remarks in R. v. Lyth, 5 T. R. 327 ; R. v.
Rainham, ib. 240 ; Lord Ellenborough in R. v. Watson, 7 East,
214. The following are instances showing what the sessions To find
should find : as, where a w^ord has a technical or local mean- ^^^^^•
ing, the sessions should find its meaning and application : R. Instances
V. Thornham, 6 B. & C. 733. So also in a settlement case, ^^ fi'^di^g»-
whether a contract of service was dissolved by mutual cou-

526 SPECIAL CASE.

sent ; or that the master dispensed with the pauper's service,
should be found by the sessions and not be left to the court
to find on evidence stated : R. v. St. Peter Mancroft, 8 T. R.
477 ; R. V. Bottisford, 4 B. & C. 84 ; 6 D. & R. 99 ; 1
R. V. Roxhy, 10 B. & C. 51 ; S. C. R. v. Roxley, 5 M. & R.
40 ; and R. v. Illminster, 1 East, 83.

Whether or not there has been fraud in the proceedings
must be expressly found by the sessions. Fraud, said Lord
Kenyon, is never to be presumed, however pregnant the case
may be with it, if not stated. See R. v. Tillingham, 1 B. <fe
•Ad. 180; R. y. St. Marylehone, 16 Q. B. 299; R. v.
Llavjiliangel Abercoivin, 4 N. & M. 355 ; R. v. Fillingley,
2 T. R. 711 ; i?. V. Preston, 2 Bott. pi. 428 ; R. v. Weston,
Burr. S. C. 166. If stated, the conclusion of the sessions will
be sustained if any grounds. R. v. Llandrinio, 4 T. R. 473;
R. v. Barnston, 7 A. & E. 864.

But the court will enquire into whether the fraud is such
as will prevent a settlement : as where the sessions thought
a pauper had been born in an extra-parochial place by the
fraudulent contrivance of a ratepayer ; the Court quashed
the order as the fraud must have been that of the parish
officer to destroy the settlement. R. v. Mattersey, 4 B. &
Ad. 211.

The sessions stated their opinion to be that all transac-
tions by masters to prevent settlements were fraudulent ; the
court quashed the order, as the fraud must be on the hiring
so as to prevent a settlement. R. v. Mursley 1 T. R. 694.

Where in fact the sessions state facts on which they find
fraud, and the circumstances do not warrant the conclusion
that the fraud affects the question of settlement in law, the
court will quash the order ; R. v. Great Sheepy, 8 B. & C. 74 ;
R. V. Kilb7j, 2 M. & S. 501 ; R. v. Great Glenn, 5 B. & Ad.
188; R. V. Owersby-h-moor, 15 East, 356. If the sessions
find fraud generally, the court is bound by their finding ; but
if they state the facts particularly, the matter is as much
open for the determination of the court as the sessions : per
Lord Hardwicke, R. v. Kihworth Ear court, 7 B. & C. 790.

The sessions should find whether a former wife was alive
at the time of a second marrige. R. v. Uarhorne, 2 A. & E.
540. It should be stated whether the tenant occupied under
a new contract, or as executor of the former tenant, R. v.
Barnard Castle, 2 A. & E. 108. Whether woods be saleable
underwoods, R. v. Narherth North, 9 A. & E. 815.
Whether landlord or tenant are rateable to the land tax,
R. V. Folksione, 3 T. R. 505 : R. v. Rainham, 5 T. R. 240.

SPECIAL CASE. 527

Whether a quarry be within the meaning of a mine, i?. v.
Dunsford, 2 A. & E. 568. Whether there was a contract of
hiring by the year, R. v. Seacroft, 2 M. & S. 472 ; R. v. aS'^.
Andrew, Cambridge, 8 B. & C. QQ^. Whether there w^as a
dissolution of the service, or a dispensation of service under
it, R. V. St. Peter, Mancroft, 8 T. R. 477 ; R. v. Bottesford,
4 B. & C. 84; R. v. Roxby, 10 B. & C. 51 ; S. C. R v.
Roxley, 5 M. & R. 40, Whether the contract was a hiring
or an imperfect apprenticeship, R. v. Ightham, 4 A. & E.
939. Whether the apprentice was assigned to or served a
second master with the consent of the first, R. v. St. Cuthbert, ■
Wells, 5 B. & Ad. 939. Whether an occupation was ancil-
lary to a service or not ; — as servant or tenant, R. v. Bishop-
ton, 9 A. & E. 824. Whether the tenancy was weekly or
yearly, R. v. Great Glenn, 5 B. & Ad. 188. What is
the reasonable rent the property may be expected to be
let at by the year, R. v. Westbrook, R. v. Everist^
10 Q. B. 178. Whether a pauper is irremovable, R. v.
Blanshard, 13 Q. B. 318. Whether a mother is able to
maintain her illegitimate child, or the father has made
provision for it, Smith v. Roche, 28 L. J. C. P. 237. If the
father has made an agreement with the mother, whether he
has performed it, and a statement of the amount of it, Follitt
V. Koetzow, 29 L. J. M. C. 128.

The sessions may set out a written contract and ask
whether such document in law affects the settlement, or
creates a hiring or not : see R. v. Aston-nigh-Birmingham,
12 Q. B. 26 ; 19 L. J. M. C. 17 ; i?. v. BiUinghay, 5 A. &
E. 676. But the sessions should first decide on the effect
of the document for themselves, and then ask the court
if they are right or wrong. And it will be incumbent on
the side disputing the conclusion to satisfy the court
that the sessions were wrong. R. v. Snape, 6 A. & E.
278 ; R. V. Pilkington, Inhabitants, 13 L. J. M. C. 61.

When the question raised is one in the discretion of the The Q. B.
sessions and they have exercised it the court will not inter- will not re-
fere. R. V. Pilkington (supra) ; R. v. London and North- 1]^^^. *^®
Western Railway, 43 L. J. M. C. 57 ; R. v. Kesteven, 3 Q. B. tion^'^of JJ
819 ; 13 L. J. M. C. 78 ; R. v. Martin-cum-Grafton, 10
Q. B. 971 ; 16 L. J. M. C. 159; however wrong their deci-
sion : R. V Kent JJ., 41 J. P. 263 ; R. v. Middx. JJ., re
Slade, ante, p. 65.

The question on a preliminary inquiry as to whether a
document has been sufficiently searched for to let in secondary
evidence is for the sessions, as it would be for the judge at

528 SPECIAL CASE.

Nisi Prius, and their finding would be conclusive. R. v.
Kenilworth, 7 Q. B. 642 ; R. v. Saffron Hill, 1 E. & B. 93 ;
R. V. Rraintree, 28 L. J. M. C. 1.
Form of The form in which the case should be stated is directed by

J^. C. R. G., H. T., 1862, (2 B. & S. 60), to be made in separate

paragraphs, which, as nearly as may be, should be confined
to a distinct portion of the subject, and every paragraph
numbered consecutively ; and unless such rule is complied
with no costs will be allowed. So also where "evidence and
documents are set out in an appendix, they must also be in
separate paragraphs (a). Hadley v. Perks, L. R. 1 Q. B.
444. This rule will be strictly enforced. Hill v. Thorni-
croft, 7 Jur. N. S. 103 ; see also R. v. Sutton Coldfield, sup.
p. 518.

The case should contain the full reasons for the order of
the sessions, and no material circumstances should be with-
held. In R. V. Tedford, Burr. S. C. 63, Lord Hardwicke said,
" The question was whether the whole fact appeared to us ;" —
" I own I thought the ivlwle case was sufflciently before us :
otherwise the justices must have done a very impertinent
thing in representing this to be the true state of the case."
See also R. v. Dursley, 6 T. R 53.

The case should be so stated as to raise the whole question
or questions of law in dispute so as to enable the court to
bring the appeal to a final decision. St. James', Westminster
V. St. Mary, Batter sea, 29 L. J. M. C. 26 ; i?. v. Sutton Cold-
field (supra), p. 518.

The court will decline to decide a mere preliminary point.
Ex parte Curtis, 47 L. J. M. C. 35 ; 3 Q. B. D. 13 (b).
(Cockbum, C. J.)

No fact or finding should be omitted which is material to
the case. R. v. Tidford, Burr. S. C. 61 ; jS. v. The Marquis
of Salisbury, 8 A. & E. 716; the sessions having, as they
should have, heard the whole of the evidence, and decided
the appeal, subject to the opinion of the court. R. v.
Marton-cum-Grafton, 10 Q. B. 971 ; 16 L. J. M. C. 159; R.

(jol) See the Rules of Court, jection ; and if on the return to

Judicature Act, 1875. Order the rule nisi it appeared, for in-

xxxiv., r. 3. stance (as was the case in Ex

(J) In this lies the distinction ^arj^e (>wr;fw), that the appellant's

between the decision on a special notices were insutficient, the

case, and the issuing a mandamus court would entertain that ques-

to the sessions to hear and deter- tion, and would refuse the rule

mine the appeal. The mandamus if no good result could follow

might involve the preliminary ob- from making the rule absolute.

SPECIAL CASE. 529

V. Sutton Coldfield (supra) ; B. v. Kesteven J J., 3 Q. B. 810 ;
R. V. Kent J J., 41 J. P. 263.

And the case should conclude by asking the opinion of
the court in the alternative, if the decision of the sessions is
right, the order to be confirmed; — if otherwise, the order to
be quashed. The question cannot be put so that the case is
to be again remitted to the sessions for further determina-
tion. R. V. Stoke-upon-Trent, 5 Q. B. 303 ; R. v. Wistoti\

3 Q. B. 815 (n.) ; R. v. Macclesfield, id. 822 (n.) ; R. v. Ickham,
id. 815 (n.) ; R. v. Worth, 4 Q. B. 134, n. See also R. v.
St Fcml's, Exeter, 10 B. & C. 12 ; i?. v. Ightham, 4 A. & E.
937 ; 4 Burn's Jus. " Poor," 805, 30th ed. by Davis.

The court will not consider any objection which is not stated Court of
on the case, even although it may go to the jurisdiction of ^- ^- ^^""
such orders which has not been raised by the case itself : R. v. g^tgiuents
Heyoj), 15 L. J. M. C. 70 ; 2 N. S. C. 270 ; R. v. Hartpury, on S C
8 Q. B. 566 ; 16 L. J. M. C. 105 (a). The court is bound
by the facts found by the sessions, and will not go beyond
them : Burr. S. C. 57; 4 T. R. 473; R. v. Tyrley, 4 B. & A. 624.
It is only the law applicable to those facts which the court will
determine. See R. v. Hnrdis, 3 T. R. 497 ; R. v. Rainhcun,
5 T. R. 240 ; R. v. Lyth, 5 T. R. 327 ; R. v. Bottesford,
-4 B. & C. 84. See R. v. Ardington, 1 A. & E. 260 (which
was observed upon in arguendo, 3 A. & E. 162, and/>er Cur.,
2 Q. B. 311), in which the court disregarded and reversed
the decision of the sessions on the evidence which was, mis-
takenly, set out in the case. So the court will not be con- Court not
eluded by the finding of the sessions as stated in the case, at all
where the finding is contradictory to the facts proved, and ^i«^es
set out in the case as constituting the ground of their decision ; J^^^y'^ „ \
as w^here the sessions found the fact of a coming to settle, sessions.
and referred it to the court ujith the facts on which their
finding w^as grounded as a matter of law : R. v. Woolpit,

4 A. & E. 205 ; and see R. v. Wishford, ib. 224. In R. v.
Woolpit, instances are quoted where the court had ad-
judged on matters of fact when brought before it for opinion
on special case. See R. v. St. Mary, Lambeth, 7 Q. B. 587 ;
R. V. ^^e7Mo^vn, 1 A. & E. 238.

But the court will not be too critical in examining the Court not
grounds of the decision of the sessions on matters of fact if **^^ critical
it appears that any exist ; or interfere with or reverse the j'ng unless"
decision unless it be manifestly wrong : R. v. Rosliston, manifestly

wrong.

(tf) The question of want of See B. v. Surrey, n. (a), ante,
jurisdiction may be considered p. 31-4 ; or VKnidnvms, Curtis v.
on a rule for a writ of certiorari. Buss, ante, p. 528, n. (Z*).

A A

530 SPECIAL CASE.

8 B. & C. 668 ; R V. St. Andrew the Great, 8 B. & C. 664 ;
B. V. Snape, 6 A. & E. 278 ; i2. v. Narberth North, 9 A. &
E. 815; R. V. Bottesford, 4 B. & C. 84 ; R. v. Perkins,
14 Q. B. 229; R. v. Filkinton, 13 L. J. M. C. 61 ; and see
the notes to Burn's Jus. Peace, v. 4, pp. 807-9.

In R. V. Great Wishford, 4 A. & E. 224, Coleridge, J.,
said : — " The line of demarcation is not plain between cases
in which the court is and is not bound by the finding of the
sessions, but there is clearly no instance in which the court
has reversed their decision unless they have manifestly come
to a conclusion which was wrong, either as being uusup-
})orted by the facts or as being contradictory to them.
Every one will agree that the jurisdiction upon matters of
fact is in the sessions ; the Court of Queen's Bench has it
only when a matter of fact is referred to it by the sessions,
or when they have decided on the fact without any evidence,
or against evidence."

And as held in R. v. Woolpit (supra), that the sessions are
like a jury; their fiuding on the facts is not to be disturbed
excepting it be unsupported by the facts, or contrary to
them ; see also R. v. Perkins, 14 Q. B. 229 ; see R. v. Sutton
Coldield, ante, p. 518, and other cases supra.

It was held in Cornwelt v. Sanders, 32 L. J. M. C. 6
(VVightman, dis.), that the court would not review the deci-
sion of the justices or the weight and value of the evidence,
even although set forth in the case for the purpose of being
considered by the court ; and even although the decision of
the justices was wrong.
Remitting Although the sessions are after the transmission of the
^ ^ ^ special case to the superior court /w/jc^t officio {R. v. Stafford-
!unena ^/t/r^", 7 E. k B. 935 ; 26 L. J. M. C. 179) in reference to it,
uient. the High Court may, as formerly, remit it to be more per-

fectly stated, as in R. v. Winwick, 8 T. R. 455 ; R. v. Road,
1 B. ife Ad. 362. This may be done either by consent or by
the authority of the court : R. v. Nether lleyford. Burr. S. C.
479 ; R. V. Winwick (supj-a). It may be that the sessions
have not found some particular fact to which the evidence
points : R. v. Hitcham, Burr. S. C. 489 ; or there may be
some ambiguity in, or omission of a circumstance which may
be su])plied by the justices without hearing further evi-
dence : R. v. Bray, Burr. S. C. 684 ; or there may be an
inference that the sessions acted on the ground of fraud,
without their actually finding fraud : R. v. Llanfihangel
Aherronrin, 4 N. <fe M. 355; see Nolan, 4th ed., p. 606;
R. V. Hineley, Burr. S. C. 115.

SPECIAL CASE. 531

Where necessary, the court will give special directions in Additional
the rule under which the order is remitted, commanding healjnrr"°
the sessions to inquire into and state particular facts : ^itted^S. C.
E. V. Clifton-on-Dunsmore, Burr. S. C. 697 ; B. v. Margam,

1 T. R. 775 ; R v. Hogg, Cald. 266 ; and whether the ses-
sions are to hear new evidence is a question that must
depend upon the nature of the case : see Pages case,

2 Bott. pi. 992 ; and, if the case be remitted to hear some
particular evidence, the admission of that may oblige them
to receive other evidence, for the court may be composed of
an entirely different body of magistrates from those who
heard the case originally : B. v. Bray, Barr. S. C. 682 ;
Page's ca. cited, ib. 685. The sending a case back to be
restated, is like ordering a new trial : P. v. Bloxham, 1 A.
& E. 386.

Where an order of justices has been quashed on appeal Practice on
at sessions, and on a special case granted, the court send it the re-hcai-
back to be restated, the respondents are the proper parties g"°J*'"^!^
to take steps towards procuring such restatement : P. v. uiitted
Barnes, 11 L. J. M. C. 128; 2 G. & D. 233.

When the appeal is reheard, and the sessions come to an
opposite decision to '' icir former one on which the case was
granted, the party complaining of it is the one to bring up
the case. If the decision remains the same, no difficulty
arises. So on an appeal against a conviction ; the sessions
confirmed the conviction granting a special case. On the
case being remitted, the sessions reversed their former
decision, and quashed the conviction on the rehearing.
Under those circumstances if the respondent did not bring
up the original case on the new finding, there would be an
end of the appeal, and the conviction. See P. v. Blojcham,
1 A. ik E. 386.

By 12 & 13 Vict. c. 45, s. 11 (Baines' Act), at any time Case may
after notice of appeal to any court of quarter sessions against ^e stated
any judgment, order, rate, or other matter (except an order Kv consent
in bastardy, or relating to Her Majesty's revenue of excise, ^ j^^jg^ ^^^
ikc), for which the remedy is by such appeal, the parties may, notice of
by consent and by order of any judge of one of the superior appeal.
courts of common law (now the Queen's Bench Division),
state the facts of the case in the form of a special case for
the opinion of such court, and agree that a judgment in
conformity with the decision of such court, and for such
costs as such court shall adjudge, may be entered by motion
by either party, at the sessions next, or next but one after
such decision shall have been given; and such judgment

A A 2

Oi>2 SPECIAL CASE.

shall be entered accordingly, and be of the same effect in
all respects, as if the same had been given by the court of
general or quarter sessions upon an appeal duly entered
and continued.
Case By Jervis's Act, 20 & 21 Vict. c. 43, s. 2, "after the

under hearing and determination by a justice or justices of the
A^i^'f •* peace of any information or complaint which he or they have
justices. power to determine in a summary way, hy any law now in force,
or hereafter to be made, either party to the proceeding
before the said justice or justices may, if dissatisfied with
the said determination as being erroneous in point of laiv,
apply in writing within three days after the same to the said
justice or justices, to state and sign a case setting forth the
facts and the grounds of such determination, for the opinion
thereon of one of the superior courts of law to be named by
the party applying ; and such party, hereinafter called ' the
appellant,' shall, within three days after receiving such case,
transmit the same to the court named in his application,
fii'st giving notice in writing of such appeal, with a copy of
the case so stated and signed, to the other party to the
proceeding in which the determination was given, hereinafter
called ' the respondent (a).' "
llccogni- By 20 & 21 Vict. c. 43, s. 3, "the appellant, at the time

z.ince, kc. of making such application, and before a case shall be
stated and delivered to him by the justice or justices, shall
in every instance enter into a recognizance, before such justice
or justices, or any one or more of them, or any other justice
exercising the same jurisdiction, with or without surety
or sureties, and in such sum as to the justice or justices
shall seem meet, conditioned to prosecute without delay such
appeal, and to submit to the judgment of the superior court,
and pay such costs as may be awarded by the same ; and the
appellant shall at the same time, and before he shall be
entitled to have the case delivered to him, pay to the clerk to
the said justice or justices his fees for and in respect of the
case and recognizances, and any other fees to which such clerk
shall be entitled, which fees, except such as are already
provided for by law, shall be according to the schedule to
this Act annexed marked (A.), until the same shall be
ascertained, appointed, and regulated in the manner pre-
scribed by the statute 11 & 12 Vict. c. 43, s. 30 ; and the
appellant, if then in custody, shall be liberated upon the

(rt) These requirements are con- J. M, C. 108; Woodhonse v.
ditions precedent : Morgaii v. Wocd, 29 L. J. M. C. 149.
Mn-ards, 5 H. & N. 415 ; 29 L.

SPECIAL CASE. 5S3

recognizance being further conditioned for his appearance
before the same justice or justices, or, if that is imprac-
ticable, before some other justice or justices exercising the
same jurisdiction who shall be then sitting, within ten days
after the judgment of the superior court shall have been
given, to abide such judgment, unless the determination
appealed against be reversed."

By 20 & 21 Vict. c. 43, s. 4, " if the justice or justices Refusal of
be of opinion that the application is merely frivolous, but h-ivolous
not otherwise, he or they may refuse to state a case, and f JJ^case!*^"
shall, on the request of the appellant, sign and deliver to
him a certiicate of such refusal ; provided that the justice or
justices shall not refuse to state a case where application
for that purpose is made to them hy or under the direction
of Her Majesty's Attorney-General for England or Ireland^
as the case may be."

A case may be stated as well on a dismissal of a summons, Caseondis-
as on a conviction : Davys v. Douglas, 28 L. J. M. C. 193; missal of
4 H. & N. 183. summons.

By 20 & 21 Vict. c. 43, s. 5, should the justices refuse to Qiieen's
state a case, application may be made to the Court of Queen's Bench may
Bench on an affidavit of the facts, for a rule calling on the °^'^^^^' ^^^^'
justices and the respondent to show cause why a case should
not be stated. And the costs of such rule will be at the
discretion of the court.

It was held in Ex p. Longhottom, 45 L. J. M. C. 163, that Juiisdic-
the Court of Queen's Bench, and not a divisional court, was *io" of
the proper court in which to apply for the mandamus under J^^^^tf) ^^^
the above section, as "it was not an appeal within the 45th "Crown
sec. of the Judicature Act, 1875 (36 & 37 Vict. c. Q'o);^' and side."
that " that division has jurisdiction over all matters which
were formerly within the exclusive jurisdiction of the Court
of Queen's Bench;" — per curiam, Blackburn, Quain, and
Field, J J. See cases ante, pp. 519 — 520.

The following are the rules made under Jervis's Act, 20
& 21 Vict. c. 43, as to cases stated under that Act.

By R. G. Mich. Term, 1857, r. 1, in cases of appeal to a Rules of
superior court, the 15th and 16th Pi'actice Rules, Hit. Term, Court.
1853, so far as the same are applicable, are to be observed.

By r. 2, when an appeal is to be heard before a j udge at
chambers, the appellant shall obtain an appointment for
such hearing, and shall forthwith give notice thereof to the
respondent, and shall, four clear days before the day ap-
pointed for the hearing, deliver at the judge's chambers a
copy of the appeal.

534 SPECIAL CASE*

By B. G. Hil Term, 1853, r. 15, 1 E. <fe B. iv., no motion or
rule for a concilium is required, but special cases are to be set
down for argument in the special paper, at the request of
either party, four clear days before the day on which the
same are to be argued, and notice thereof shall be given
forthwith by such party to the opposite party.

By B. G. Hit. Term, 1853, r. 16, 1 E. & B. iv., four clear
days before the day appointed for argument, "the plain-
tiff" {i.e. the person bringing up the case) must deliver
copies of the special case with the points intended to be
insisted on to the chief and senior puisne judge, and the
other side to the two other judges ; and in default by either
}>arty the other may, on the day following deliver such
copies, and the party making default shall not be heard until
he has paid for them, or deposited with the master a suffi-
cient sum to pay them. If the statement of the points has
not been exchanged between the parties, each party is, in
addition to the two copies left by him, to deliver his statement
of the points to the other two judges, either by marking
them in the margin of the books delivered, or on separate
papei-s.

Mules 15 <{r 16 H. T., 1853, are to the effect that appeals

may be set down for argument, at the request of either party,

four clear days before the day of argument, notice being

given forthwith to the opposite party, and the appeal cases,

with points of argument, being delivered to the judges, see

Glenn's Ed. of Jervis's Acts, p. 237 — 8.

Costs where Where, upon a case stated under 20 & 21 Vict. c. 43, the

ciisenot appellant has neglected to lodge the case within the specified

lodged. time (sec. 2), the court will grant the costs of a rule to show

cause why it should not be struck out of the list. Mellor, J.,

remarked, that the ordinary rule was that parties who com-

InKngland. pel litigation must put themselves in the right, and that the

appellants should be compelled to pay the costs incurred by

improperly setting the law in motion (a). The decision in

Brown V. ISImw, L. R. 1 F^. D. 425, not followed : The G.

N. & N. ir. Committee v. Inett, 46 L. J. M. C. 237 ; 2 Q. B.

D. 284 ; 25 W. R. 584.

In Ireland. It has, however, been decided in Ireland that where the

effect of the order is that an appeal is not properly before the

court, costs cannot be given against the appellant : Little v.

(«) When a person brings him- as to costs : Peters v. Sheeham. 1
self before the court he impliedly M. & W. 213 ; 12 L. J. Ex. 177.
submits himself ij its jurisdiction

SUMMARY JURISDICTION ACTS. 58.

Donnelly, 5 Ir. R. C. L. 1 Q. B. This does not appear to be
the practice in the English courts.

Application for the costs incurred in the court below Applica-
should be made at the time of the rule : see Cooke v. Mon- *^^^ ^^^
tagiie, 28 L. T. R. 494; 21 W. R. 670, Q. B. ; and Glen's ^^^^'•
Jervis's Acts.

SUMMARY JURISDICTION ACTS.

The Summary Jurisdiction Act, 1879, is to be construed Act 1848
as one with the Summary Jurisdiction Act, 1848 (commonly ^"i„'^^^
known as ** Jervis's Act"), 11 & 12 Vict. c. 43, which was ^^^ ^^^
passed " to conduce to the improvement of the administra-
tion of justice within England and Wales, so far as respects
summary convictions and orders to be made by Her Majesty's
justices of the peace therein," and to consolidate the statutes
relating thereto.

Whatever there was formerly, there is now but little dis- Conviction;^
tinction between convictions and orders as regards summary ^"^^ orders
convictions. Tindal, C.J., in Biirgessv. Boetefoiir, 13 L. J. M. ^aj'^jiig/"'
C. 126 (1844), said, ''the word 'conviction' is verbum equivo- tinction.
cum ; " — and Cresswell, J., designated it as " ambiguous."
Since Jervis's Act in 1848, convictions and orders have been
placed on almost the same footing. Paley says, *'it is not
easy to fix any rule for distinguishing in the abstract be-
tween what things are subject to orders, and what to convic-
tions. Practice seems chiefly to have been consulted in the
distinction." — Paley on Convictions, 7th Ed., 171.

The distinction lies in this: the conviction is the record l^istinction
of a summary proceeding upon a penal statute before one or ^ ^^-^t-^ons
more justices, where the offender has been convicted and sen- ^■^^}^ orders,
tenced. Prior to 4 Geo. 2, c. 26 (1731) — reciting that, "many
and great mischiefs do frequently happen to the subjects of this
kingdom from the proceedings in courts of practice being in
an unknown language ; " (ci) — convictions were then recorded
ill Latin, and orders returned in English. Formerly, an order
was drawn up before it was acted on ; a conviction might be
drawn up at any time after the justices had pronounced

(«) See form of an order in 9 East. 27. " Sanctge Trinitatis,
Latin. Xorthtush, Rex v. Benja- Anno 21° Cai'. 2di, Regis."
mln Nelson, n. (C), R. v. Stveet,

53G

SUMMARY JURISDICTION ACTS.

Material

vei-bal
alle;;aiions.

Technical
words un-
necessary
in informa-

tiOBS.

Application
of the Acts.

their decision : see R. v. Radnorshire, 9 Dowl. P. C. 93 ; the
" conviction " is an entire judgment and indivisible, and one
material fault may vitiate the whole ; but an " order" may be
good in part and bad as to the residue : R. v. Green and
otJws, 20 L. J. M. C. 168; R. \. Robinson, 17 Q. B. 466,
471 ; R. v. Sprout, 9 East, 25 : R. v. Price, 6 T. R. 147 (a).

The following are some instances of material omissions in
the legal statement of the essence of an offence which will
vitiate a conviction : —

The omission of " wilfully and knowingly " in a conviction
under 11 Geo. 2,. c. 19, s. 4, of a tenant for fraudulently
and clandestinely removing goods, R. v. Radnorshire, 9 Dowl.
P. C. 90 ; further, as' to introducing the word " wilfully," see
R. V. Badger, 25 L. J. M. C. 81 ; Carpenter v. Mason, 12
A. & E. 629 ; R. v. Bent, 1 Den. C. C. 159 (reported by
Williams, J.) ; Hudson v. M'Rae, 33 L. J. M. C. 65 ; "• wil-
fully and corruptly " (in perjury), R. v. Stevens, 5 B. & C. 246 ;
" wilfully and maliciously," Charter v. Graeme, 13 Q. B. 226 ;
"maliciously," Stevenson v. Nevndan, 13 C. B. 285; R. v.
Fembleton, L. R. 2 C. C. R. 119 ; 43 L. J. M. C. 91 ; R. v.
Ward, L. R. 1 C. C. R. 356 ; 41 L. J. M. C. 69. The aver-
ment of " knowledge " is essential although not made
necessary by statute ; see Chaneys v. Payne, 1 Q. B. 712,
721 ; Fletcher v. Calthrop, 6 Q. B. 880, 887, in which Lord
Denmiui, C. J., remarks on Littledale's, J., judgment in R. v.
Marsh, 2 B. <fe C. 717 ; and explains James v. Phelps, 11
A. & E. 483. See j^ost, p. 539.

The omission of " unlawfully " will form no objection
unless distinctly used in the statute ; so held in R. v. Chipp,
2 Str. 711.

Technical words are unnecessary in informations. " It is
sufficient," said Lord Holt, " for the justices in the descrip-
tion of the offence in the information to preserve the words
of the statute: all that is necessary is to show such a fact
as is within the description of the statute, and to describe it
as the statute wills." See R. v. Chandler, 1 Lord Raym. 581,
583; see also R. v. Marsh, 2 B. & C. 717 (sed vide sup.) ;
In re Boothroyd, 15 M. <fe W. 1.

As to what are essential provisions in statutes, and those
which are directory only, see cases collected in note to
Chaddock v. Wilhraham, 5 C. B. R. 654.

By sec. 1, 11 & 12 Vict. c. 43 (Jervis's Act, 1848), the
summary jurisdiction of the justice applies to all cases

(rt) See note (a), p. 537, infra.

SUMMARY JURISDICTION ACTS. 5:37

where an information shall be laid that any person has
committed an oft'ence withm the jurisdiction of the justice
for which he is liable to punishment on a summary con-
viction ; and also in all cases where a complaint shall be
made to any justice upon which he may have authority to
make an order for the payment of money or otherwise.
But sec. 35 of the same Act excepts from this jurisdiction, Exception h*
warrants or orders for the removal of poor persons, or orders "'j^^er the •
in respect to lunatics, or in matters of bastardy (a), save i^^ ' ^®^"
only as to such provisions as relate to the backing of
w^arrants compelling the appearance of the putative father,
or warrants of distress, or levying sums' ordered to be paid,
or the imprisonment of a defendant for non-payment of the
same (see sec. 54, Summary Jurisdiction Act, 1879) ; nor
will the Act extend to any proceedings relating to the
labour of children and young persons in mills and fac-
tories (6).

By sec. 52 of the Summary Jurisdiction Act, 1879, the Exceptions
provisions in the Act to impose imprisonment without hard ^^ *^ *^^

labour, and reduce the prescribed period thereof, or do '^""y'

A -I. ' iicivy, ins."

either of such acts, and in the case of a fine, if it be imposed vine, or
in respect of sl first offence, to reduce the prescribed amount, militia,
and in case of imprisonment, to impose a fine in lieu ^c*^-
thereof, will not apply to proceedings in relation to the
regular or auxiliary forces.

The 53rd sec. brings proceedings before the court of Limited
summary jurisdiction in reference to informations relating application
to the Post-office (c) statutes under the Summary Jurisdic- J^ the Act
tion Acts, where the sum to be forfeited does not exceed office and
£20 ; otherwise the proceedings will be in force under the revenue
special Act. cases in

So also with regard to proceedings in excise and revenue summary-
cases, the Acts will apply so far as regards the proceedings f^i^g^^^ "
in the court of summary jurisdiction, but extending the
power of imprisonment to six months where the penalty
imposed exceeds £50.

Excepting so far as sees, 52 & 53 bring Post Office and

(a) See remarks of Field, J., her Majesty's revenue of excise, or

in R. V. Mcmtg ornery shire, 51 customs, stamps, taxes or post-

L. J. M. C. 95, where he speaks of office is repealed by the burn,

the doubt as to a bastardy order Juris. Act, 1879, sch. 2.
being a conviction or order ; and (c) An appeal to the Quarter

hence sec. 54 in the Sum. Juris. Sessions by the convicted person

Act, 1879 ; post, p. 547. is under sec. 13 of 7 Will. 4 &

(^) The part of section 1 ex- 1 Vict. c. 36.
eluding proceedings relating to

2 A 3

538

SUMMARY JURISDICTION ACTS.

Summary
cases

heard ouly
ill open
court.

The cleik
to the
court of
summary
jurisiJic-
tiun.

Fine, or
imprison-
ment.

Inland Revenue cases within the summary jurisdiction of tlie
justices, those Acts will not further apply to cases affecting
the interest of the Crown ; and therefore, it would seem that
the appellant clauses of the Act of 1879 will not operate on
them ; but any appeals to the quarter sessions which may
be made therein will be entirely governed by the provisions
in the special Acts under which the convictions appealed on
mav be made (a). See Leith Harh. Com. v. Inspectors of
P(i>r, 1 H. L. Sc. App. 17.

A case arising under any Summary Jurisdiction Act is
only to be heard and determined by a court of summary
jurisdiction sitting in open court at a petty sessional court-
house, or where the justices a^e accustomed to assemble, and
will consist of two or more justices ; sec. 20, S. J. A. 1879.

The clerk to the court will be the salaried clerk to a
petty sessional division under section 5 of the Justices Clerks'
Act'l877, or his deputy, sec. 48, S. J. A. 1879 (6).

For the general provisions as to the jurisdiction of the
courts of summary jurisdiction, see sec. 46, S. J. A. 1879.
As to the local jurisdiction in indictable offences, sec. 45 ih.

Under several statutes prior to 1879 the justices had no
option but to imprison a defendant, and could not impose a
fine, and many hardships in ?;onsequence took place. But
now, under sec. 4 of the S. J. A. 1879, a court of summary
jurisdiction has authority under any Act to impose either
imprisonment or fine, and the imprisonment may be with or
without hard labour ; and the court may reduce the pre-
scribed period, or do either of such acts ; and in case of a
fine, if it be imposed in respect of a first offence, may reduce
the prescribed amount. As to the exception of the regular
and auxiliary forces, see supra.

Where a court of summary jurisdiction has authorit}''
under an Act of Parliament other than the Summary Juris-
diction Act, 1879, whether past or future, to impose impri-
sonment, and has no authority to impose a fine, the court
may, if they think the case will be better met by a line than
by imprisonment, impose a fine not exceeding £25, and not
being of such an amount as will subject the offender, under

(fl) See supra, tit. " Excise,"
and the special provisions as to
the hearingr the appeal.

(&) As to clerks to justices of
boroughs, see 5 & 6 Will 4, c. 76,
8. 102 ; 24 & 25 Vict. c. 75, s. 5 ;
Brown v. Evans, 33 L. T. 737,

affirmed, 35 L. T. 877 : 24 W.
R. 937. It is necessary to ob-
serve who is the statutable clerk,
as he will be the only person oti
whom to serve the notice for the
justices under sec. 31, sub-sec. 2,
Sum. Juris. Act, 1879.

SUMMARY JURISDICTION ACTS. T^ol)

the provisions of the Act, in default of payment,*to a greater
term of imprisonment than that to which he would be liable
under the Act authorising the imprisonment, 1879, sec. 4.

The following is the maHmum scale now fixed for impri- Scale of
sonment by sec. 5, Summary Jurisdiction Act, 1879 (under B""'«^-
any Act), in respect of the non-payment of sums adjudged
to be paid by a conviction, or, in respect of the default of
sufficient distress (a) to satisfy any such sum : —

Where the amount does not exceed ten shil-
lings, the period of imprisonment shall
not exceed ...... Seven days.

Exceeding ten shillings, but not exceeding

one pound . ' . . . . . Fourteen days.

Exceeding one pound, but not exceeding

five pounds ...... One month.

Exceeding five pounds, but not twenty

pounds ....... Two months.

Exceeding twenty pounds .... Three months.

As regards convictions under the Post Office and Inland
Revenue statutes, where the sum adjudged to be paid
exceeds £bO, the imprisonment on default may exceed
three months, but not six months : Summary Jurisdiction
Act, 1879, sec. 53.

It will be seen that under section 31, Summary Jurisdic- Quarter
tion Act, 1879, sub-sec. 5 (where that section applies), the Sessions
court of quarter sessions on hearing an appeal under the °" ^PP^^
provisions of that Act, will have full power to make such punish-
order in the matter as the court may think just ; and may, ment.
in making such order, exercise any power which the court
of summary jurisdiction might have exercised ; and, further,
that such court of appeal " may confirm, reverse, or modify,
the decision of the court of summary jurisdiction " (6).

The court will not be astute in discovering defects in con- Form of the
victions. The old rule to that effect is exploded : see R. v. conviction.
Thompson, 2 T. R. 18. In fact, everything is to be intended
in support of an order of justices : E. v. Farringdon, 2 T. R.

(ji) The order for distress is a (J) The requirement to enter

condition precedent for im- into recognizances to keep the

prisonment : Ex parte Browne, peace, or the observing of some

vi Q. B, D. 545 ; 47 L. J. M. C. other condition, may be dispensed

108 ; 88 L. T. 682 ; 26 W. R. 694. with (sec. 4, Act 1879).
See tit. " Alelwme^' ante, p. 70.

540 SUMMARY JURISDICTION ACTS.

471 ; R. V. Aire dc Calcler Navigation, ib. 660 ; R. v. Clayton,
3 East, 58. Many older authorities establish the reverse
proposition : R. v. Little, 1 Burr. 603 ; R. v. Gordon, 4 ib.
2281, S. P. R. V. Peck/iam, Camb. 439 ; R, v. Chandler,
1 Salk. 378.

On an infonnation for keeping a betting-house on divers
days and times, a conviction for keeping the house on a day
not specified is good : Onlef/ v. Gee, 30 L. J. M. C. 222.

A conviction following the words of the Act, " that one
T. P., unlawfully by threats, endeavoured to force one
M. J., to depart from his hiring to Messrs. P. & Co.," was
held to be sufficient, and that the nature of the threats
need not be shown : Ux p. Ferham, 29 L. J. M. C. 33 ;
5 H. & N. 30.

Where the same statute provides summary proceedings in
distinct sections for various offences, it must appear on which
section the conviction has been made : Charter v. Grceme, 13
Q. B. 216 ; 18 L. J. M. C. 73 ; 13 J. P. 232.

Where a form is given in the Act it is sufficient to follow it
in describing the offence : R. v. Johnson, 8 Q. B. 102 ;
Barnes v. White, 1 C. B. 192 ; 14 L. J. M. C. 65.

The offence must, however, be correctly stated : Ex p.
Hawkins, 2 B. <fe C. 31 ; and be the one contemplated by the
Distribu- Act : Ex p. Pain, 5 B. & C. 251.

tiuii of the jjj some instances the justices have to exercise a discretion
^" as to how the penalty shall be distributed; they must then
show on the face of the conviction that they have done so ;
but where they have no discretion vested in them it is suffi-
cient if the conviction state the penalty is to go as the law
directs : In re Boothroyd, 15 M. & W. 1 ; 15 L. J. M. C. 57 ;
R. V. Hyde, 21 L. J. M. C. 94 ; Ell. & Bl. 859 ; 16 J. P. 67,
overruling Ex j). Hyde, 15 Jur. 803; see also R. v. Burton,
18 L. J. M. C. 56; 13 J. P. 120, decided under 29 Car. 2,
c. 7 ; see also the cases, siipra : R. v. Johnson, and Barnes
V. White, where the informer's name, to w^hom the yjenalty
was to go, was in no way named. See also Wray v. Take,
12 Q. B. 492, decided under 11 Geo. 4 and 1 Will. 4, e. 64,
and 4 & 5 Will. 4, c. 85 (Licensing Acts).

Where the payment is directed to be made to a person
other than the one entitled to receive it, the conviction will
be bad. As where on a conviction for an assault under
9 Geo. 4, c. 31, the fine was required to be paid to the trea-
surer of the county, it was held to be bad : Chaddock v. Wil-
('onvictions braham, 5 C. B. 645 ; see also R. v. Hyde, supra.

The conviction must not be in the alternative : Ex p.

SUMMARY JURISDICTION ACTS. 541

Pahi, 5 B. & C. 251 ; i?. V. North, 6 D. & R. 143; nor in not in the
blaJik, B V. Fain, 4 D. it R. 72. alternative.

A conviction charging three offences will be bad. Such a Particu-
record would furnish no protection against another informa- larity in
tion : Newman v. Bendyslie, 10 A. & E. 11 ; see Lockwood v. ^onvic-
Tlie Attorney-General, 10 M. & W. 464 ; Wrayy. Toke (supra).
An error in the adjudication of the fact creating the
offence, or the judgment thereon, will vitiate the conviction :
Gri:fitJis V. Harries, 2 M. & W. 335 ; 1 Jur. 57.

A conviction for being found " on the high seas " in a ship
liable to forfeiture, and made by a justice at the first place
on land to which the party was carried, was held good
(G Geo. 4, c. 108, s. 43) : In re Nimn, 8 B. & C. 644. In that
case the vessel was first boarded as she was entering the
harbour of Hai'wich.

To convict the owner of a boat for plying for hire by his
servants without being qualified, the conviction must state
he received some of the hire : R. v. Taylor, 2 Chit. R. 578.

Where two persons are convicted of an assault they cannot
be jointly fined : Morgan v. Brown, 6 Nev. & M. 67.

When an informal or improper conviction has been recorded When
at the sessions (and all convictions are matters of record, and informal
are to be filed at the sessions with the clerk of the peace by convictions
the convicting justice : R. v. Easton, 2 T. R. 285 ; see also ^ected.
Ex parte Hayward, 32 L. J. M. C. 89), a second conviction, YiWh
obviating any fault of the first, may be filed, provided nothing victions at
equivalent to a quashing the first has taken place : Charter sessions.
V. Grcenie, 13 Q. B. 216 ; 19 L. J. M. C. 73. And even after
the copy of the conviction has been given to the defendant,
the record may be drawn up in a more formal shape, and be
recorded as the only authentic proceeding ; and at the trial
in an action founded on it, and so on an appeal, the court will
not inquire into the time when it was actually drawn up : see
R. V. Barker, 1 East, 187 ; Ma^sey v. Johnson^ 12 ib. 82 ;
Gray v. Gookson, 16 ib. 20 ; R. v, Allen, 15 ib. 333; Charter
V. Graeme {supra). But the conviction must not be passed on
a different statute from that of the commitment : Rogers v.
Jones, 1 R. & M. 129. Copy of record, evidence : Giles v,
Siney, 11 L. T. 310.

The 19th section of the Summary Jurisdiction Act, 1879, Under
creates an appeal in these words : " Where in pursuance of '^^^^- Juris,
any Act, whether past or future, any person is adjudged by a -^c*' l^''^,
conviction or order of a cOurt of summary jurisdiction, to be appeaH^
imprisoned loithoitt the option of paying a fim, either as a cases where
punishment for an offence or (save as hereinafter mentioned) sentence of

542 SUMMARY JURISDICTION ACTS.

imprison- for failing to do, or to abstain from doing any act or thing
™5"^ required to be done, or left undone, and such person is not

option of otherwise mithorised to appeal to a court of general or quarter
paying a sessions, and did not plead guilty, or admit the truth of the
fine and information or complaint, he may, notwithstanding anything
appeal not jjj i\^q g^j^ ^^^^ appeal to a court of general or quarter
authorised sessions against such conviction or order."
g . But this section will not apply where the imprisonment is

adjudged for failure to comply with an order for the pay-
ment of money, for the finding of sureties, for the entering
into any recognizance, or for the giving of any security.

It will be important to notice, when considering sections

31 & 32, the cases which are excluded under "past" Acts

from sec. 19, where a right of appeal had already been given

against a conviction by such " past " Acts : see post, p. 546,

R. V. Salop or Shropshire, and remarks thereon ; as also R. v.

Montgomeryshire, post.

Section 31, The following is the " amendment of procedure " on appeal

Act, 1879. under the 31st section, Summary Jurisdiction Act, 1879 : —

Where any person is authorised by this Act or by any

future Act to appeal from the conviction or order of a court

of swwTwary jurisdiction (a) to a court of general or quarter

sessions, he may appeal to such, subject to the conditions

and regulations following : —

Rules and 1^ The appeal shall be made to the prescribed court of
of^s" ^ sT^ general or quarter sessions, or if no court is prescribed, to
the next practicable court of general or quarter sessions
having jurisdiction in the count}^ borough, or place for
which the said cout^ of summary jurisdiction acted, and
holden not less than fifteen days after the day on which the
decision was given upon which the conviction or order was
founded ; and

2. The appellant shall, wMthin the prescribed time, or if
no time is prescribed within seven days after the day on
which the said decision of the court was given, give notice of
appeal by serving on the other party, and on the clerk of the
said court of sumnrary jurisdiction, notice in writing of his
intention to appeal, and of the general grounds of such
appeal ; and

3. The appellant shall, within the prescribed time, or if
no time is prescribed, within three days after the day on

(a) R. V. Price, 49 L, J. M. C. recover a poor rate is not s
5 Q. B. D. 800. A justice sitting of summary jurisdiction,
to issue a warrant of distress to

SUMMARY JURISDICTION ACTS. 543

which he gave notice of appeal, enter into a recognizance
before a court of summary jurisdiction, with or without
a surety or sureties, as that court may direct, conditioned to
appear at the said sessions and to try such appeal, and to
abide the judgment of the court of appeal thereon, and
to pay such costs as may be awarded by the court of appeal ;
or the appellant may, if the court of summary jurisdiction
before whom the appellant appears, think it expedient,
instead of entering into a recognizance, give such other
security, by deposit of money with the clerk of the court of
summary jurisdiction or otherwise, as the court may deem
sufficient ; and

4. Where the appellant is in custody, the court of sum-
mary jurisdiction before whom the appellant appears to enter
into a recognizance may, if the court think fit, on the
appellant entering into such recognizance or giving such
other security as aforesaid, release him from custody ; and

5. The court of appeal may adjourn the hearing of the
appeal, and upon the hearing thereof may confirm, reverse,
or modify the decision of the court of summary jurisdiction
or remit the matter, with the opinion of the court of appeal
thereon, to a court of summary jurisdiction acting for the
same county, borough, or place as the court by whom the
conviction or order appealed against was made, or may make
such other order in the matter as the court of appeal may
think just, and may by such order exercise any power which
the court of summary jurisdiction might have exercised,
and such order shall have the same effect, and may be
enforced in the same manner, as if it had been made by the
court of summary jurisdiction. The court of appeal may
also make such order as to costs to be paid by either party
as the court may think just ; and

6. Whenever a decision is not confirmed by the court of
appeal, the clerk of the peace shall send to the clerk of the
court of summary jurisdiction from whose decision the appeal
was made, for entry in his register, and also indorse on the
conviction or order appealed against, a memorandum of the
decision of the court of appeal, and w^henever any copy or
certificate of such conviction or order is made, a copy of such
memorandum shall be added thereto, and shall be sufficient
evidence of the said decision in every case where such copy
or certificate would be sufficient evidence of such conviction
or order ; and

7 . Every notice in writing required by this section to be
given by an appellant shall be in writing signed by him or by

544

SUMMARY JURISDICTION ACTS.

Limit of
S. J. Act,
18 79, s.
31.

Effect of
s. 19.

Optional
appeal
under sec.
32, S. J.
Act, 1879.

his agent on his behalf, and may be transmitted as a
registered letter by post in the ordinary way, and shall be
deemed to have been served at the time when it would be
delivered in the ordinary course of the post

The 31st section above set out is in terms specifically
confined in its operation to appeals by "any person author-
ised by this Act, or by smy future Act."

Sec. 19, it will have been noticed, created a new class of
appeal (applicable to pcist Acts), and giving an appeal in all
cases where a person is convicted and sentenced to im-
prisonment without the option of paying a fine; and the
Act under which the conviction might be made had given
him 710 rigid of appeal. When such an appeal is made, the
"rules and regulations" of sec. 31 will have to be observed,
as the appeal would then become one under " this" (1879)
Act. Where the former Act gives a right of appeal, then
the appellant will have the right of option to appeal under
the past Act, or the Act of 1879, as provided for by sec. 32.
See B. v. Salop, S. C. E. v. /Shropshire, post ; and in Ji. v.
Montgomeryshire (post).

By sec. 32, Act 1879, it is enacted, where a person is
authorised by any past Act to appeal from the conviction or
order of a court of summary jurisdiction to a court of general
or quarter sessions, he mai/ appeal to such court, subject to
the conditions and regulations contained in this Act with
respect to an appeal to a court of general or quarter sessions : —
Provided that where any such appeal is in accordance
with the conditions and regulations prescribed by the Act
autlhorising the appeal, so far as the same is unrepealed, such
appeal shall not be deemed invalid by reason only that it is
not in accordance with the conditions and regulations con-
tained in this Act {a).

(a) The 32nd section also pro-
vides that where toiy j^^-^t Act,
so far as unrepealed, prescribes
that (1711/ appeal from the convic-
tion or order of a court of su?n-
mary juj'udtctkm shall be made
to tJie next court of general or
quarter sessions, such appeal may
be made to the next practicable
court of general or quarter sessions
having jurisdiction in the county,
borough, or piacs for which the
court of summary jurisdiction
acted, and held not less than

fifteen days after the day on
which the decision was given
upon which the conviction or
order appealed against was
founded. We may notice the
distinction in the wording of this
portion of the clause. The appli-
cation is general, applying to
^^ any past Act," whereas the
prior portion of the section is ex-
pressed in strictly limiting words,
giving an entire option in the
appellant to proceed under the
conditions and regulations as they

SUMMARY JURISDICTION ACTS. o4}5

In some few of the " past Acts " the Act gives merely a Acts giving
bare or general right of appeal without enacting any specific a bare right
conditions or regulations to be observed for the appeal. In ^ ^PP®^ •
some the entering into a recognizance is required either as a
security for costs, or, in fact, as an actual condition prece-
dent to the appeal ; as in the appeal against an order of
affiliation where the entering into the recognizance is a con-
dition for the appeal, and of which notice is to be given to
the mother of the child.

For the purpose of creating a uniformity of practice in Convictions
certain cases of appeal, Baines' Act, 12 & 13 Vict. c. 45, was exempted
passed ; but, by sec. 2 of that Act, appeals against convic- 1^^ ,^
tions (inter alia) are excluded from the operation of the
Act (a).

It had been formerly held that with a bare right of appeal Notice
the entering into a recognizance was tantamount to a notice where there
of appeal : see B. v. Kent, 6 M. tk S. 258 ; B. v. Ussex, 4 B. J^'/bf^^^^'''^
& Aid. 276, those being cases where the only condition appeal
attached to the appeal was that a recognizance should be without
entered into by the appellant. ^^y con-

But those cases, soon after the passing of Baines' Act, ^ ^*^"^'
came under review in Ux jx Blues, 5 E. & B. 291 ; 24 L. J. Reasonable
M. C. 138; the court holding that where the Statute gave ^^^'^^'
only a bare right of appeal, a reasonable notice of appeal was jBiues.
requisite as a condition attached in larv to the appeal. And
in reference to the giving the notice of appeal, Lord Camp-
bell, C. J., said, '*We are not called upon to express any
opinion as to what notice of appeal is to be given under the
circumstances ; but we are not to be supposed as acquiescing
in the rule laid down by Bailey, J., in B. v. Essex, that where
an appeal is given without mentioning a notice of appeal,
there is no occasion to give any notice of appeal to the oppo-
site party ; the learned judge does not lay down such an
universal rule. He supposed that no further notice of the
appeal could be required than the recognizance, as the
opposite party might easily obtain information of that fact*
But," said Lord Campbell, " when there is simply a power
of appeal given, without any condition in the Statute, I am
of opinion that it is necessary there should be notice of
appeal given to the other side. Where the appeal is given
generally without any condition, there is an implied condition

exist of either the " past " or the shire, post, and JR. v. Montgomery*
" present " Act. shire, post.

(ft) See B. V. Salop or Shrop-

shire.

546 SUMMARY JURISDICTION ACTS.

that notice of appeal shall be given to the other side, so
that both parties may be heard and justice done." In these
remarks Coleridge, J., concurred.

Since Ex p. Blues, in all cases where the bare right of
appeal is alone given, notice of appeal has been required ;
but the reasonableness of such notice has been for the sessions
to determine ; and such was the universal practice prior to
1879.

Since the passing the S. J. Act of 1879, cases have been
decided which should be carefully considered ; and in refer-
ence to which the decision in £Jx p. jBlues has an important
bearing,
i?. V. B. V. Salop, 60 L. J. M. C. 72; S. C. eo nom. R. v.

Salop, or Shropshire, 6 Q. B. D., p. 669, was the first case brought
fi^i?" before the Q. B. D. under the new Act of 1879. In that
case application was made for a mandamus to justices to
hear an appeal, on a conviction made under 11 Ceo. 2, c. 19,
of a tenant for having unlawfully and fraudulently removed
his goods to avoid a distress for rent.

The 5th sec of 11 Geo. 2, c. 19, gave the hare or general
right of ai)peal, making no provision for any notice of appeal ;
and the 6th sec. provided for the stay of execution on the
appellant entering into his recognizance in double the sum
ordered to be paid — that recognizance, Grove, J., said, was
no condition attached to the appeal ; it was a mere stay of
proceedings pending an appeal on a security for costs (a).

It was stated in the case that the appellant had given his
notice of appeal in compliance with the requirements of
Baines' Act, 12 & 13 Vict. c. 45 (which did not apply), and
the recognizances had been duly entered into to try the
appeal. The sessions declined to hear the appeal, on the
ground that notice of appeal had not been given within

(a) There are, however, in- (those on convictions being ex-
stances under similar statutes, eluded by sec. 2 will not) that
where the entering into the recog- Act would apply ; in other cases
nizance would be a condition the ruling in Ex parte Blues
attached to the right of appeal : (mpra) would be equally applic-
see B. V. Oxfoy'd.'ihh'e, 1 M. & S. able ; and, as that authority was
44H ; R. V, Lincolnshire, 3 B. & C. not considered or even noticed in
548. And in such cases it would R. v. SalojJ, it can hardly be
seera that the ruling in M. v, taken as overruled ; and seeing
Salop or R. v, Shropshire would also that in R. v. Saloj) it was
not apply (excepting by election erroneously assumed that cases
of the appellant), so there would of convictions were within
at least be one *' condition " at- Baines' Act, and that that Act
tached to the appeal. In all would so far be repealed,
cases falling within Baines' Act

SUMMARY JURISDICTION ACTS. 547

the time specified in the Summary Jurisdiction Act, 1879,
sec. 31.

It was urged on the part of the respondents that the Argument
object of the Act of 1879 was to give a uniform method oi^^J^- ^•
procedure in appeals ; and its provisions were applicable to
the present case, inasmuch as 11 Geo. 2, c. 19, laid down no
** conditions or regulations," — and that, on that ground, the
sessions rightly declined to hear the appeal.

Grove, J., in giving judgment, said — " I think that conten-
tion is right. The order was made under 11 Geo. 2, c. 19 ;
and under the 5th section an appeal from such order is given
to the next general quarter sessions. No conditions of any
description are attached to the appeal. Then comes the 6th
section, which provides that where the party appealing shall
enter into a recognizance as therein mentioned, execution
shall be stayed pending the hearing of the appeal. In
other words, the appellant must give security for costs in
order to have execution stayed. The entering into a recog-
nizance is not, however, any condition attached to the
appeal; but such appeal is of right. Then comes 12 & 13
Vict. c. 45 (a), under which fourteen days' notice of appeal
must be given in all cases.

" Such was the state of the law at the time of the passing
of the Summary Jurisdiction Act, 1879 (42 & 43 Vict. c. 49),
which deals with various matters, and which in the 31st sec-
tion prescribes conditions and regulations which admittedly
have not been complied with. These conditions, if inconsis-
tent with that contained in 12 d: 13 Vict. c. 45, repeal the latter
in so far as they are inconsistent wnth them. Then comes
the 32nd section, which is applicable to the present case,
and which provides that ' where a person is authorised by
any past Act to appeal from the conviction or order of a court
of summary jurisdiction to a court of general or quarter
sessions, he may appeal to such court subject to the condi-
tions and regulations contained in this Act wnth respect to
an appeal to a court of general or quarter sessions.' These ,
conditions and regulations are contained in the 31st section,
to which I have already alluded, and have not been observed
by the appellant. But then there is a proviso to the ^2nd
section, upon the construction of which the present question
turns. It runs thus : ' Provided that where any such
appeal is in accordance with the conditions and regulations
prescribed by the Act authorising the appeal, so far as the

(a) See note (a), ante, p. 546,

548 SUMMARY JURISDICTION ACTS.

same is unrepealed, such appeal shall not be deemed invalid
by reason only that it is not in accordance with the condi-
tions and regulations contained in this Act.' Now this
appeal cannot be said to be ' in accordance with the condi-
tions and regulations prescribed by the Act authorising the
appeal/ because the Act 11 Geo. 2, c. 19 attaches no con- h
dition ; therefore the provisions of the Summary Jurisdiction *
Act, 1879, apply, and the appellant, not having given his
notice of appeal in proper time, had no locus standi at the
sessions. On these grounds I think the justices were quite
right, and that, therefore, the rule must be discharged."

Lindley, J. : "I agree. Mr. Kemp's argument is gone if i i
the words of the statute are carefully looked at. Two
classes of cases are dealt with — the one where a right of
appeal is given simply, tJie other wliere certain conditions are
attached to such right. This case comes within the former
of the two classes. We are therefore throivn hack on the
provisions of the 31st section by force of the words con-
tained in the 32nd section. When once this is done, it is
admitted that the appellant cannot succeed. As to whether
12 «fe 13 Vict. c. 45 is repealed, I will only say that, so far
as regards the present question, I can see no inconsistency
between the two statutes, l^he one says that notice of appeal
must be given within a certain time after the decision of the
justices ; the other, that such notice must be given fourteen
days before th^ sessions at which the appeal is to be tried."
Remarks The decision in B. v. iSalop put an important construction

on R. V. on sec. 32 of the Act 1879 ; but to support it, the per-
Salop; missive '^'may" in that section must be read as the im-
''7/iay"OT perative "shall" and thereby render the exclusive introduc-
^^^9 tory words of sec. 31, limiting the appeal under that section
to where any person is authorised by this Act, or by any
future Act, to appeal from the conviction or order of a
court of summary jurisdiction to a court of general or
quarter sessions, of no effect. The 11 Geo. 2, c. \^,gave
a right of appeal ; and, in the language of sec. 19, Act 1879,
the 1879 Act is only to apply where such person (on con-
viction) is not otlrerwise authorised to appeal. The effect of
sec. 19 on the construction of the Act was not noticed in
the case. And, with all submission, the court had mis-
conceived " the state of the law regulating appeals against
convictions at the time of the passing the Summary Juris-
diction Act, 1879," in not referring to the then well-esta-
blished rule of practice in such appeals, under the authority
of Ex parte Blues ; and in dwelling on Baines' Act, as apply-

SUMMARY JURISDICTION ACTS. 549

ing to convictions, which was, in fact, absolutely excluded
from the case by sec. 2 of that Act.

An appeal, under a statute giving a bare right of appeal,
as under 11 Geo. 2, c. 19, would appear to be a casus omissus
in applying any statutable " conditions and regulations " of
appeal to it, as those under sec. 31 of the Act of 1879,
unless the appellant should have elected to proceed under
that section as authorised by sec. 32. Bearing in mind
that sec. 19 preserved the appellant the right of appeal as
under the then existing law, and excluded from it the Act of
1879, it is submitted that notwithstanding B. v. Salop, the
rules of sessions were then as law under Ex parte Blues^
and would still govern the practice. Had the sessions heard
the appeal in R. v. Salop, as at the time brought before
them, no successful application could have been made to
the High (yourt to set their decision aside ; not because the
appellant had followed the directions in Baines' Act, but
for the reason that, in the opinion of the sessions, the
notices (as under Ex parte Blues) were " reasonable," and
thereby were in compliance with the existing " conditions
and regulations " at the time of the passing the Act of
1879.

The view here taken meets with some support from the R. v. Mont-
decision in R. v. Montgomeryshire, 51 L. J. M. C. 95. That gomery-
was an appeal against an order in bastardy, and which "^^
peculiar class of order Field, J., pointed out was in the
nature of "half conviction" and ''half order;" and there
was a doubt whether such orders were included in the
words " conviction or order " (a) ; and hence sec. 54, Act
1879, was inserted, making the Act applicable to the levy-
ing of sums adjudged to be paid under an order in bastardy-
but the section did not make bastardy appeals differ from
all others, and deprive them of the existing procedure.

Bo wen, J., expressly observed on the distinction between
*'may" in sec. 32 as not to be interpreted as "must^^ (as
it was, in fact, in R. v. Salop). And Field, J., remarked,
" That it was not intended to deprive the appellant of any
previously existing advantage. The conditions of the form of
appeal, followed in this case, were as under 7 & 8 Vict. c. 101,
s. 4; and 8 & 9 Vict. c. 10, s. 3, which are less onerous than
those under sec. 31 of Act 1879." — "The Legislature," said

(a) These remarks indicate that mentioned meant an "order "in
Field, J., considered the Sum. the nature of a " conviction."
Juris. Act where " order " was

550

SUMMARY JURISDICTION ACTS.

Field, J. , " meant to say, * We will not alter the existing
rights of appeal ; the appellant may apply under the former
Acts, or this Act, whichever he likes : he need not comply
with the conditions of this Act;' this is the right construction
of sees. 31 and 32."

It has been observed that to uphold B. v. Salop (s «/)?•«),
" mag" in sec. 32 must be read as '^ shall." It is clear from
i?. V. Montgoniergshire (supra), that " may " is to be read
as permissive. A single word in a section cannot be read
under two opposing interpretations to suit the convenience
of the moment. R. v. Salop cannot, therefore, stand as law
with R. V. Montgoinergshire.
Is s c 31 I> pon the hearing of any such appeals, and generally as
Act 1879,' ^o appeals under the " past Acts," further points have to be
applicable considered as to the effect of the sub-sees, of sec. 31, which
to the relate to the hearing the appeal. R. v. Salop and R. v.

tearing of ^f,jyifqQj^ieryshire apply to the form and conditions of the
under a notice of appeal ; and the effect of the sub-sections appli-
past Act ? cable to the hearing and judgment on the appeal remains
to be considered in the Court of Appeal on some future
special case. It is, certainly, important that some clear
judicial interpretation should be put, either by the High
Court of Justice, or the Legislature, on these compHcated
enactments ; the complications being entirely created by the
uncertain and indefinite provisions of sec. 32, as to which
if " may" in sec. 32, is to be read as ^^ shall'' as in R. v.
Sal'tp, and not as permissive, as in R. v. Montgomeryshire,
the two sections would be rendered contrariant.
pj . But the only consistent reading of sec. 32 seems to be,

proceed on ^^ ^^ -^« ^^ Montgomeryshire, to treat it as giving an optional
sec. 32. appeal at the will of the appellant, and reserving all prior
rights under the " past Act." Frimd facie, then, the appeal
would be under the 7:>c/s^ Act, unless there be some distinct
and special indication on the appellants' part that he has
elected to proceed under the Act of 1879 in fact.

And even where he elects to proceed under the Act of
1879, still the prior Act must be looked to. Under sub-
sec. 1, sec. 31, "the prescribed court" is to be selected for
the appeal, and in some cases that court is the next prac-
ticable sessions ; or a sessions to be holden after a certain
number of days, or even months, from the time of the
conviction. In some instances, then, the time will be less
or may be more extended under the past Act for the appeal,
than under the Act of 1879. The words of sub-sec. 1
are: — *'The appeal (when acting under Act 1879) shall be

SUMMARY JURISDICTION ACTS. 551

made to the prescribed court of general or quarter sessions,
or if no court is prescribed, to the next practicable court,"
having jurisdiction, <fec.

So with regard to the notice of appeal under the sub- The notice
sec. 2. The notice of appeal is to be given within the °^ appeal.
prescribed time, or if there be no prescribed time, within
seven days after the day on which the decision of the court
was given. Here, again, the " past Act " has to be looked
to ; and the time must be strictly followed for giving the
notice of appeal, whether the party elect to proceed under
the Act of 1879, or not.

As to the service " on the other party," there would be Service on
no distinction whether it be made under the past or present "*^^ other
Act. It will be a personal service, or by leaving the notice ^^^ ^'
at the party's residence.

But with regard to the service of the notice on the Service of
justices, or court of summary jurisdiction, there is a t^e justices
marked distinction. Under the sub-sec. 2, the service gmnn^ary
may be made on the clerk of the court. So also such jurisdic-
may be the service on an appeal under some few oftion.
the later " past Acts," as the Weights and Measures Act,
1878, 41 (fe 42 Vict. c. 49, s. 60; the Factories and Work-
shops Act, 1878, 41 & 42 Vict. c. 16, s. 90. Bat under
other Acts — as the Sale of Intoxicating Liquor Acts — a
service on "the court of summary jurisdiction," where the
appellant does not elect to proceed under the Act of 1879,
there must still be a personal service on the justices ; and a
service on the clerk alone would be bad. See Curtis v.
Bms, S. C. eo nom. Ex parte Curtis [supra, pp. 72, 133) ; R. v.
Yorkshire W. R., 7 Q. B. 154. See also R. v. Bedfordshire,
11 A. & E. 134; i?. V. Cheshire, ib. 842.

So with regard to the entering into the recognizance on Entering
electing to proceed under the Act of 1879, the prescribed ^^^^ ^^.®
time under the "past Act" is to be observed ; but if no such ^^^c^^'
time is prescribed, then the time is limited to three days
by sub-sec. 3. In some cases the recognizance is to be
entered into immediately, as it is under the licensing Acts.

When proceeding on the " past Act," the recognizance
is to be in some cases with two or no sureties. In each
case where the " past Act " is proceeded under, the par-
ticular statute should be carefully referred to, and followed,
as barely the regulations of any two statutes are similar.

Sub-s. 4, giving the justices power to release the appellant Releasing
on entering into his recognizance, is a general power in all Acts. ^^^ clefen-

The power given to the court of appeal under sub-s. 5 to '^^^^ °" ^"^
^ ° ^ ^ recogni-

zance.

552 SUMMARY JURISDICTION ACTS.

Distinc- " confirm, reverse, or modify the decision of the covn-t of

tionsasto^ summary jurisdiction," will be found to be important in its

the appealT ^'Application. And especially so in considering whether the

appeal has been made under the "past" or the "present

Act."

Take for instance an appeal under the Act for the Preven-
tion of Cruelty to Animals. Under the appeal clause of that
Act the court of quarter sessions has no jurisdiction to alter
the sentence passed at petty sessions ; it can only confirm or
dismiss the appeal. And, further, as to the costs ; — under
this " past " Act the court has no power to refuse granting
the costs (see R. v. Yoi'kshire W. R.^ In re Pearson, 31 L. J.
M. C. 271, and infra, tit. "Highways") ; in both these in-
stances the Act 1879, sec. 31, is to the contrary, and the court
may alter the sentence, or it may in its discretion grant costs.
It is submitted that, carrying out the language of Field, J.,
" that existing rights of appeal " are not altered, we must
read the "may" as reserving equally the " existing rights"
of the respondent as well as those of the appellant. And if
the appellant does not, in fact, elect to make his appeal under
the Act 1879, but proceeds under the former or " past" Act,
he does so for all purposes. But if he elect to proceed under
the Act 1879, he '^may^^ do so, and then be " subject to the
conditions and regulations contained in " that Act.
Technical Technical objections having been so frequently fatal to
objections, appeals (R. V. Saloj) is only one instance out of the many),
the draftsman of the Act 1879, probably seeing the confusion
which might arise with respect to the notices of appeal under
''past" Acts combined with sec. 31, Act 1879, inserted the
provision, ex abundanti cautela, in sec. 32, " that where such
appeal is in accordance with the conditions and regulations
prescribed by the Act authorising the appeal, so far as the
same is unrepealed, such appeal shall not be deemed invalid
by reasc^n only that it is not in accordance with the condi-
tions and regulations of this Act."

This provision may be read as a protective clause on the
construction to be put on the sub-ss. 1, 2, 3, sec. 31, as to
the observance of the " prescribed " sessions to appeal to,
and the "prescribed" times to be followed in giving the
notices of appeal, or entering into the recognizances.

Sub-s. 6 may or may not become applicable according as

the appellant may elect under which Act he will proceed.

And a similar remark arises on sub-s. 7 ; but that sub-s. is

merely expressive of the general practice.

Care in The foregoing observations will at once show the necessity

THEATRES. o5'^

of exercisinor great care in the selectinj^ the statute under selecting
which to appeal and proceeding with the appeal. In some ^"^
cases it might be to the advantage of the appellant specially statute.
to elect to proceed under the Act of 1879, as it may be,
where he so elects, the court would have the power to
modify the sentence imposed, which otherwise it might not ;
on the other hand, an extension of the time for appealing
may be important which the appellant would have under the
" past Act."

The mere fact of the appellant following the conditions The Act
and regulations of the Act 1879, or some of them, will not appealed
of necessity lead to the inference that he has in fact elected ""^'i '1°*'
to proceed under that Act. In practice, where the adniinis- inf^j-ence
tration of the law on appeals is so widely distributed for
administration among the various courts of quarter sessions,
and each court, within certain limits, having jurisdiction to
exercise its own discretion, no decision there made can rest
on a more uncertain basis than that of mere "inference."
Unless, therefore, there be a fixed and certain reading of the
Acts, with a fixed and certain general rule of practice, ap-
plicable to each class of appeal under the Acts, whether the
appeal be under the election of the appellant or not, each
appeal against a conviction will remain open to contentious
argument, as well as variable and uncertain decisions ; a
result utterly at variance with that uniformity of proceeding
so desirable to be attained, and the obtaining of which was
apparently the object of the Legislature.

THEATRES.

Any person keeping a house, or place of public resort 6 & 7 Vict.
without being licensed, for the public performance of stage ^- ^^'^- '^•
plays will, under 6 & 7 Vict. c. 68, s. 2, be liable to a penalty
not exceeding <£20 for every day on which the same may
be so kept open without legal authority (a).

Sec. 23 defines the meaning of a stage play ; and excludes Stage
from its operation any theatrical representation in a booth at V^'-^y^-
any lawful fair, feast, or customary meeting.

A ballet is included in a stage play : Wigan v. Strange, 35
L J. M. C. 31 ; so a dialogue, Thome v. Colson, 3 L. T.
697 ; Thoiiie v. St. Clair, 25 J. P. 102 ; see also Day v.

(a) See the Sum. Juris. Act, 1879, s. 5.

B B

554 THEATRES.

Simpson, 34 L. J. M. C. 149 ; 18 C. B. N. S. 680, as to an
exhibition known by the designation of " Pepper's Ghost."

A tent or booth nsed by strolling players is not a place of
public resort within the meaning of sec. 2 : Davys v. Douglas,
4 H. & N. 180 ; 28 L. J. Exch. 193 ; see also Fredericks v.
Hoi'Ae, 31 L. J. M. C. 248; 1 H. & C. 386; decided under
the Metropolitan PoUce Act, 2 & 3 Vict. c. 47, s. 46 ; the
offence would there be committed by " keeping, using, or
knowingly letting any house, or other tenement, for the
purpose of being used as an unlicensed theatre," and it was
held that a tent or booth was not the " tenement " as defined
in Co. Litt. 20, a. See i?. v. Rosenthal, 7 B. & S. 124; 35
L. J. M. C. 78 ; 13 L. T. 433.

6 & 7 Vict. It was, however, held in Tarling v. Fredeiicks, 28 L. T.

c. 68, s. 814 ; 21 W. K. 785 ; that a booth or show used for the
acting a stage play may be "a place not being a patent
theatre, or duly licensed as a theatre," and for the perfor-
mance in which for hire a person may be liable to a penalty
not exceeding £10 for every day on which he shall so offend:
6 <fe 7 Vict. c. 68, s. 1 1 ; see also Fredericks v. Payne, 32 L.
J. xM. C. 14 ; 1 H. & C. 584 ; 11 W. R. 36.

^- V. In R, V. Strugnell, L. R 1 Q. B. 93 ; 35 L. J. M. C. 78 ;

Slrugnell. ^^^q appellants had hired of the overseers the Exchange Hall
of the borough for six consecutive nights, but which was not
duly licensed as a theatre. Stage plays were performed
there, and the justices convicted the appellants as under sec.
2 for "having and keeping" an unlicensed theatre. The
conviction was quashed as not being a case within sec. 2 ;
but it was said to be within sec. 11. Lush, J., said: "The
scheme of the Act is to maintain proper control over
theatrical enteilainments and the acting of stage plays ; and
it requires a licence for the place (sec. 7), and inflicts
penalties both on the person having permanent control over
the place (sec. 2), and allowing stage plays in it when
unlicensed, and on every person who performs or causes (a)
stage plays to be performed (sec. 11). Now in the present
case the person convicted had not in any sense the permanent
control of this building ; but they performed <^r caused to be
presented, stage plays in it. And when sec. 11 points at this
latter class of persons I must suppose that the other section
points at the other and different persons ; viz., person having

Qi') See B. v. Glosaop, 4 B. & other acts may he good evidence,
Aid. ()lt>. The taking part in the of "causing " the plaj to be per-
rehaarsais may be evidence, with formed.

TIME. 555

the permanent control of the premises By sec. 7 (a)

no licence is to be granted to any person except the actual
and responsible manager, for the time being, of the theatre ;
the licence is to the home and not to the individual. " And it
could not be intended that a person who has no interest in
the house beyond the performance during a few nights is to
take out a licence for the house."

Sec. 15 prohibits the acting any play before it has been Allowance
allowed by the Lord Chamberlain, or after it has been dis- ^^ *^^ P^^'
allowed, under a penalty not exceeding <£50, and the absolute ^^ ^ ^^^^
forfeiture of any licence.

The 20th section gives to any person aggrieved by any
order of a justice under the Act an appeal therefrom to the
next (b) general or quarter sessions of the peace to be holden
for the county, &c., whose order therein shall be final. This
section gives the bare right of appeal, see therefore B. v.
Salop, 50 L. J. M. C. 72, infra, under tit. "Summary Juris-
diction Acts " as to the form of appeal.

TIME.

By 43 <fe 44 Vict. c. 9, all time is now^ regulated by the
Greenwich mean time. This overrules Curtis v. March, 28
L. J. Ex. 36, where it was held that " time " meant the mean
time of the place.

Forthwith, immediately, instantly, directly, are equivalent to,
— as soon after as can reasonably be expected, with prompti-
tude, or reasonable promptness : see per Lord Coleridge,
C. J., Hudson V. Hill, 43 L. J. C. P. 273, 277 ; per Coleridge,
J., R. V. Lowe, 3 D. & L, 737 ; Tennant v. Bell, 9 Q. B. 684 ;
Spenceley v. Rolnnson, 3 B. & E. 658 ; Hyde v. Watts, 12 M.
& W. 254; Grave v. Clinel, 4 Q. B. 606; R. v. Aston, 19
L. J. M. C. 236 ; 4 N. Sess. Ca. 283 ; Hancock v. Somes,
El. & El. 795; 28 L. J. M. C. 196; R. v. Broionloiv, 11
A. & E. 127 ; Duncan v. Topham, 8 C. B. 225.

Where no time is expressly mentioned, the law allow^s a
reasonable time : Ellis v. Thompson, 3 M. k, W. 456 ; the
reasonableness is a question of fact : Startup v. Macdoncdd,
2 M. & Gr. 395. And this may depend on the practice of

{a) As to a licence in Cam- Vict. c. 68.
bridge or Oxford, or within 14 (Ji) Next practicable sessions :

miles thereof, see sec. 10, 6 <k 7 Sum. Juris. Act, 1879, s. 32.

B B 2

556 TIME.

the Sessions : per Lord Denman, C. J., R. v. Watts, 7 A. <fe
E. 470 ; see also B. v. Surrey, 5 B. & A. 539 ; 1 D. & R.
160; H.Y. Wiltshire, 10 East, 404; 7?. v. Yorkshire West
Hiding, 5 B. & Ad. 671.

7'e7i days at least is ten clear days intervening : Mitchell v.
Fostei', 12 A. & E. 472 ; R. v. Middlesex, 14 L. J. M. C. 139 ;
R. V. Shro2)shire, 8 A. & E. 173 ; 2 N. Sess. Ca. 73;
Chambers v. Smith, 12 M. «fe W. 2 ; Zouch v. Empsey, 4 B. &
Aid. 522; Beard \. Gray, 3 Chan. Chamb. K. 104; R. v.
The Aherdare Canal Co., 14 Q. B. 854.

Ten clear days are exchisive of the day of service and
day of sessions : R. v. Hertfordshire, 3 B. & Aid. 581 ;
Roberts v. Stacey, 13 East, 21.

Within ten days, the first day is exclusive, and the last
day inclusive : Freeman v. Reed, 32 L. J. M. C. 226 ; 4

B. k S. 174; Migotti v. Colville, 4 C. P. D. 233; 40 L. T.
747 ; see also Leslie v. Garland, 15 Ves. 248 ; R. v. Cumber-
land, 4 N. & M. 378.

Sunday is usually included in calculating the time when
the statute fixes the doing a thing, as the entering into a
recognizance within two days (or the like) : Ex parte Simkin,
29 L. J. M. C. 23 ; 2 El. & B. 392, decided on 18 & 19 Vict.
c. 121, s. 40 ; Peacock v. Reg., 4 C. B. N. S. 264; 27 L. J.

C. P. 224.

Sunday is reckoned in the days unless expressly excluded
by the statute : Ex paHe Simkin {supra) ; Peacock v. Reg.,
(supra) ; Woodhouse v. Woods, 29 L. J. M. C. 149 ; Great
Northern Ry. Co. v. Inett, 41 J. P. 294.

But Sunday is not to be reckoned in the 24 hours' notice
of appeal required in a bastardy case : R. v. Middlesex, D.
k L. 580 ; 3 N. S. C. 152 ; see also Lister v. Garland, 15
Ves. 247.

In the case last cited Erie, J., treated the service of the
notice of appeal, which is a notice of what one court has
decided, and which authorises another court to proceed, as
very much in the nature of "process," and as strongly
analogous to the service of a declaration in ejectment ; see
also R. V. Denbiglishire J J., 9 Dowl. P. C. 509. This view
was subsequently upheld by Lord Campbell, C.J., in
Asprell V. Lancashire, 16 Jur. Q. B. 1067, n.,in which notice
of grounds of appeal against an order of removal (the
appeal having been entered at the July sessions) was put
into the post on Saturday, October 2nd, and by ordinary
course of post a letter posted from the appellant parish
would reach the respondent parish the same evening or early

TIME. 557

the following morning, and in fact the letter did reach the
respondent overseers on the following morning, JSundai/,
October 3rd. The first day of the sessions was Monday,
October the 18th. By 4 & 5 Will. 4, c. 76, s. 81, notice of
appeal is to be given fourteen days at the least before the
first day of the sessions at which the appeal is intended to
be tried. On the objection being made that due notice had
not been given, the sessions dismissed the appeal and the
court refused to grant a mandamus. Lord Campbell, C. J.,
saying, " You cannot make out that the notice of appeal was
delivered fourteen days at least before the first day of the
sessions, without assuming the delivery of the notice on
Sunday to be valid ; but it has been held, that notice of
appeal is 'process' (a) within sec. 6 of 29 Car. 2, c. 7,
which prohibits service of process on a Sunday."

Sunday may in some instances be ^a:cluded from the time
of giving notice of appeal ; as where a rate is published on
a Saturday, and time is requisite to consider whether an
appeal shall be made against the rule or not : see Ji. v,
JiJssex, 1 B. & A. 210; H. v. Surrey/, 50 L. J. M. C. 10; 6
Q. B. D. 100, decided on a local act (ante, p. 126).

" After the cause of complaint " means from the time the
person is actually damnified: H. v. Devon, 1 M. & S. 411
see B. V. Shrewsbury {Recorder), 1 E. & B. 711, 720 ; 22
L. J. M. C. 98, overruling R. v. Brixham, 8 A. & E. 375
the making the order: R. v. Salop, 2 B. & Ad. 145 ; R. v
Derbyshire, 7 Q. B. 193 ; i?. v. Staffordshire, 3 East, 157
the knowledge by other ratepayers of a claim of exemption,
under 6 & 7 Vict. c. 36, s. 6, of a scientific society from
rates : R. v. Pocock, 8 Q. B. 729 ; see R. v. Dev(m, 1 M. k
S. 411 ; R. V. Barnet Sanitary Authority, 45 L. J. M. C. 105,

(a) Leeming and Cross, p. 275, on the 18th of the month. In
have the following remarks on the report the grounds of appeal
A.'ijfrell V. Lancashire : — "There are spoken of as ' notice of
appears some confusion in the yroutids of appeal,^ from which
report of this case between notice perhaps the confusion may arise,
of appeal and grounds of appeal. But as notice of appeal is in the
Notice of appeal had been served nature of process, R. v. Middle-
in time, the only question was, sex JJ.^ 5 D. & L. 430, the deci-
whether grounds of appeal under sion would apply, though it went
4 & 5 Will. 4, c. 76, s. 81, which w^on grounds of appeal." See as
in the oi'dinary course of post to the similar case of notice of
reached the overseer on Sunday dishonour of bills of exchange :
the 3rd, were served in sufficient Hilton v. Fairclongh, 2 Camb.
time within the Act requiring 633 ; Stoehen v. Collin, 7 M. &
service fourteen days 'at least' W. 515; Woodcock v. Houlda-
befure the sessions, which began worth, 16 M. & W, 124.

558 TIME.

where it was held there was no distinction between " cause
of appeal " and " cause of complaint."

Week, under the Factories and Workmen Act, 1878,
means, the period between midnight on Saturday and mid-
night on the succeeding Satiu'day.

Month, by Lord Brougham's Act, 13 tfe 14 Vict. c. 21, s. i
(in all Acts passed after June 10th, 1850), " month" is to
mean calendar month unless words be added to show that
lunar month to be intended.

" To any quarter sessions to be holden within six months,"
the appeal must be loiihin that time ; though if the two
sessions are held during that time he, the appellant, may
choose either of them : R. v. Yorkshire West Hiding, 3 T. R. 779.

*' Within three calendar months next after such conviction,"
Pilot Act, 52 Geo. 3, c. 39. The party has three months
to signify his intention of appealing : E. v. Middlesex J J.,
6 M. & S. 279. Under the General Inclosure Act, 8 <k 9
Vict. c. 118, 8. 63 : R. v. Essex, 34 L. J. M. C. 41.

"Next possible," "next practicable," give the parties a
reasonable time to look about them to consider whether they
will appeal. And in this the distance of the appellant's
place from that where the sessions are holden will be con-
sidered : R. V. Y&rl'shire, E. R. 1 Doug. 183; R. v. Flint'
shire, 7 T. R. 200; R. v. JSssex, 1 B. <fe A. 210 ; the sessions
must be practicable for all purposes, R. v. Surrey, 2 New
Sess. Ca. 155 ; R. v. Surrey, ante, p. 126.

*' 2'iine " must not be abridged by the act of the " removing
party," or the parties making a rate ; where that is done the
most favourable construction will be adopted as regards the
other in giving notice of appeal : Lord Ellenborough, R. v.
Southampton, 6 M. & S. 394 ; see also R. v. Surrey, 50 L. J.
M. C. 10.

Delaying time for the publication of a rate has been treated
by the courts as if done so designedly : R. v. Dorsetshire, 15
East, 200 ; R. v. Sussex, 15 East, 206 ; those cases are as to
rates ; R. v. Kent, 8 B. <k C. as to a removal of a pauper ;
see also R. v. Sussex, 34 L. J. M. C. 69; R. v. Yorkshire W. R.,
4 M. it S. 327.

The time from which to date the notice of appeal is in all
cases as from the first day of the original sessions, and not
any adjournment thereof: see ante, p. 129, "Appeal."

Time for appeal under the Nuisance Removal Act, 1855,
18 (t 19 Vict. c. 121, s. 22 (repealed by the Public Health
Act, 1875), ran from the service of the notice of assessment
on the premises assessed, and not from the time the amount

TOWNS IMPROVEMENT CLAUSES ACT, 1847. 559

of the rate was fixed by tbe local authority : R. v. Middleton^
28 L. J. M. C. 41. As remarked by Blackburn, J., in R. v.
The Barnet Sanitary Authority, 45 L. J. 105, 107, a rate
may be made behind a man's back : see now the Public
Health Act, 1875, s. 269, sub-s. 2.

Where, under the Municipal Act, 1882, any act is to be
done or proceeding taken on a Sunday, Christmas Day,
Good Friday, or Monday or Tuesday in Easter week, or a
fast, humiliation, or thanksgiving day, such days will be
excluded from the time, 45 & 46 Vict, c, 50, s. 230.

TOWNS IMPROVEMENT CLAUSES ACT, 1847.
10 & 11 Vict. c. 34.

An appeal is given by sec. 185 of the Towns Improvement Appeal

Clauses Act, 1847, to any person who may think himself ''^^''^^^^*' ,

J , ' "^ ,/ J r • tj. c • fate under

aggrieved by any rate on the ground oi inequality, unfair- g^^, j^g^ ^^

ness, or incorrectness in the valuation of any rateable pro- justices in
perty included therein, or in the amount assessed thereon ; special
he may at any time within one month after such rate is sessions,
made appeal to the j ustices at any special sessions holden for
the division within which the rateable property is situated,
for the purpose of considering appeals against the poor
rates. But no such appeal shall be entertained by such
justices unless seven days' notice in writing of such appeal be
given by the aggrieved party to the commissioners ; and the
sessions shall hear and determine all objections to such rate
on the grounds above stated, and of which notice had been
given, but no other objection ; and their decision will be
final unless the party impugning such decision, within four-
teen days after the same is made, give notice in writing to
the other party of his intention to appeal against such deci-
sion, stating in such notice the nature and grounds of such
appeal ; and within five days after such notice enter into a
recognizance before a justice with sufficient sureties to try such
appeal at the next sessions and abide the order of the court.

No order is to be in force pending the appeal : sec. 188.

By sec. 186, any person aggrieved by any rate made under Appeal
the authority of this or the special Act, or by any matters ""^Jer sec.
included in or omitted from the same, may, at any time ,- |°^^
within one month after the same is made, give notice of his sessions to
intention to appeal to the next quarter sessions holden not quarter
less than fourteen days after such notice ; but no such appeal sessions.

560

TOWNS IMPROVEMENT CLAUSES ACT, 1847.

Appeal
clause
against
ordei-s of
commis-
sioners to
quarter
sessions
under sec.
80.

Offence by

shall be entertained at such quai*ter sessions unless fourteen
days' notice in writing of such appeal, stating the nature and
grounds thereof, be given by the aggrieved party to the
commissioners ; but no such appeal will prevent the issue of
a distress for the rate.

The court may adjourn the hearing, and the decision will
be final: sec. 187. Sec. 188 suspends the proceedings
pending the appeal.

By sec. 189, the sessions, on appeal, will have the same
power of amending and quashing rates and awarding costs as
in appeals against poor rates.

Sec. 190 takes away the writ of certiorari, but see sec. 40,
Summary Jurisdiction Act, 1879.

With respect to works to be constructed by or subject
to the approval of the commissioners (of which notice
is to be given, sec. 84, .and under sec. 85 the commis-
sioners will hear objections in the presence of the inspector),
it is enacted by sec. 86 that any person liable to pay or to
contribute towards the expense of any of the works afore-
said, or otherwise aggrieved by any order of the commis-
sioners relating thereto, may, at any time within seven days
next after the making of any such order, give notice in
writing to the commissioners that he intends to appeal against
such order to the court of quarter sessions holden next after
the expiration of ten days next after such notice ; and along
with such notice he shall give a statement in writing of the
grounds of the appeal ; and if within four days next after
giving such notice the party enter into a recognizance before
some justice, with two sufficient sureties, conditioned to try
the appeal and abide the order of the court, and pay such
costs as shall be awarded by the court, thereupon the work
so appealed against shall not be begun until after the judg-
ment of the court upon such appeal ; and such court, upon
due proof of such notice and recognizance having been given
and entered into, shall hear and determine the matter of the
appeal, and shall make such order thereon, either confirming,
quashing, or varying the same, and award such costs to either
of the parties as the court in its discretion thinks fit ; pro-
vided always that the appellant shall not be heard in support
of such appeal unless such notice and statement have beei\
given and such recognizance entered into as aforesaid ; nor on
the hearing of such appeal shall he go into evidence of any
other grounds of appeal than those set forth in such statement
as aforesaid.

By sec. 10-5, if any nuisance, or the cause for the hijurious

TRADES UNIONS. 501

effects which the justices had ordered to be abated under creating a
sec. 104, be not discontinued or abated as ordered, the nviisance.
person whose business caused the nuisance will be subject to
the penalty of not exceeding £5 for every day during which
the nuisance continues or is unremedied ; but when any
person thinks himself aggrieved by such order, and shall,
*' according to the provisions of this or the special Act appeal
against such order," such person will not be liable to discon-
tinue or remedy the nuisance or cause of injurious effects,
or pay any penalty until after five days after the hearing
the appeal, unless the appeal should cease to be prosecuted.

It is suggested in Taylor on the Consolidated Acts that it What right
is doubtful if there be an appeal under this sec, on the °* appeal
assumption that the special appeal clauses do not apply, ^j^j^^"^
There is, however, clearly the right of appeal given, and as
to the form of procedure, see E. v. Salop JJ., 50 L. J. M. C.
72, and remarks thereon under Tit., Summary Jurisdiction
Acts (supra).

TRADES-UNIONS.

Mr. Davis, in his work on Friendly Societies and Trade
Unions (p. 177), speaks of trades unions as being associa-
tions closely connected with the prosperity and reverses of
English commerce ; and which, in their primitive form, were
merely benefit societies, consisting of artizans engaged in
particular trades, who combined together for the mutual
assistance of persons employed in a similar manner to them-
selves. Such societies were familiar to the Anglo-Saxons,
amongst whom they were called "guilds," signifying a
fraternity (a).

The Trade Union Act, 1871, 34 & 35 Vict. c. 31,
legalised the societies called trade unions (6).

Under the Act there ai*e certain offences created, on the
conviction for which the party aggrieved will have his right
of appeal.

Under sec. 12, if any officer, member, or other person
being or representing himself to be a member of a trade
union registered under the Act, or the nominee, executor,
administrator, or assignee of a member thereof, or any person

(a) As to the modern objects (b) How far a Court of Equity

of Trades Unions, and contracts will interfere between its mem-

in restraint of trade, see Mr. bers, see Righy v. Connal, 42 L.

Davis' work. T. 139.

B B 3

5C2 TRADES UNIONS,

whatsoever by false representation or imposition, obtain pos-
session of any monies, securities, books, papers, or other
effects of such trade union ; or, having the same in his pos-
session, wilfully withhold or fraudulently misapply the same ;
or, wilfully apply any part of the same to purposes other
tlian those expressed or directed in the rules of such trade
union, or any part thereof : — the justices may, by a sum-
mary order, order all such monies, securities, ttc, to be given
up to the trade union ; or repayment of the amount applied
improperly ; and payment, if the court thinks fit, of a fur-
ther sum not exceeding £20, with costs not exceeding 205.
In default, the pereon convicted may be imprisoned for a
time not exceeding three months, with or without hard
labour.

Every trade union must be registered, and have a regis-
tered address ; and a trade union being in operation for seven
days without having such office, such union and every officer
thereof will each incur a penalty not exceeding £6 for every
day during which it is so in operation, see sec. 15.

Notice of the situation of the registered office, and of any
change therein, is to be given to the registrar and recorded
by him ; and until such is done the trade union will not be
deemed to have complied with the provisions of the Act, ?6.

A general statement of tlie receipts, funds, effects, and
expenditure of every trade union is to be transmitted to the
registrar before the 1st of June in every year, and also a
copy of the alteration in the rules and changes of officers
during tlie year ; under a penalty of £5 for each offence,
payable by the trade union and every officer of the trade
union so failing, sec. 16.

And every person wilfully making or ordering to be made
any false entry in, or any omission from, the general state-
ment, or in or from the return of copies of rules or altera-
tions of rules will be liable to a penalty not exceeding £50
for each offence, ih. (a)

Under sec. 20 the party feeling aggi'ieved by any order or
conviction made under the Act by a. court of summary juris-
diction, may appeal therefrom subject to conditions and
regulations. Similar to the conditions and regulations in sec.
33, sub-s. 5 of the Friendly Societies Act, 38 & 39 Vict. c. 60
{ante, p. 265). But with this exception, under sec. 20 of the
Trade Union Act, sub-s. 5, the court of appeal has the

(a) Circulating false copies of defraud is a misdemeariour : sec.
rules with intent to mislead or 18, Trade Union Act, 1S71.

VOLUNTEER FORCE. 563

power given in the section to order costs to be paid by either
party as the court may think just ; but such power is omitted
in the Friendly Societies Act ; the appellant is, however, to
enter into his recognizances " to pay costs if aivarded" and
which may be ordered under 11 & 12 Vict. c. 43, s. 27, ante,
p. 203.

VOLUlSrTEEIl FORCE.
26 k 27 Vict. c. 65.

Under the Volunteer Act, 1863, 26 & 27 Vict. c. 65,
s. 28 {a), any person who designedly makes away with, sells,
pawns, wrongfully destroys, damages, loses, or wrongfully
refuses or neglects to deliver up on demand anything issued
to him as a volunteer : penalty, the value recoverable with
costs ) and for the offence of " designedly making away
with, selling, pawning, or wrongfully destroying," as afore-
said, on the prosecution of the commanding officer, &c. :
penalty, not exceeding X5.

Under sec. 29, any person who knowingly buys or takes
in exchange from any volunteer, or any person acting on his
behalf ; or solicits or entices any volunteer to sell, or know-
ingly assists or acts for any volunteer in selling, or has in his
possession or keeping without satisfactorily accounting for,
any arms, clothing, or appointments (see sec. 49) being pub-
lic property, or property of any volunteer corps, or adminis-
trative regiment, or any public stores, or ammunition issued
for the use of any such regiment : penalty, on a first convic-
tion, not exceeding £20 ; on a second and subsequent con-
viction, not exceeding £20 or less than £5, with or without
imprisonment for any term not exceeding six months with or
without hard labour.

By 32 & 33 Vict. c. 81, the words "buy" and " sell," and
"selling," will include "take in pawn," "pawn," and
" pawning," respectively.

The conviction is to be returned to the quarter sessions,
and a certified copy thereof will be received as evidence : 26
& 27 Vict. c. 65, s. 29.

(a) As to '* Naval Coast Volun- viction ; but nnder the Sum.

teers '^ and Royal Naval Volun- Juris. Act, 1879, s. 19, the appeal is

teers, see 22 & 23 Vict. c. 40, and given on a sentence of imprison-

Yeoraanry Corps, 44 Geo. 3, c. ment, and which the court has

54, there is no appeal on a con- power to inflict.

5G4 VOLU^iTEER FORCE.

Any person causing wilful injury to butts or targets be-
longing to a volunteer corps or administrative regiment ; or
Avho, without leave of the commanding officer, searches for
bullets in or otherwise disturbs the soil forming such butt or
target : penalty, not exceeding £5, on the prosecution of the
commanding officer.

Under sec. 38 Bye-laws may be made for the regulation of
the shooting and prevention of intrusion : a penalty not ex-
ceeding £5 may be imposed.

Under sec. 45, any person demanding or taking a toll in
contravention, or making a false representation respecting
himself or any other person, animal, or thing, with intent to
obtain for himself or otherwise, or fraiidulently obtains for
himself or otherwise, any exemption under this section :
penalty, not exceeding <£5.
Appeal. Section 48 gives the right of appeal where the sum ad-

judged on a summary conviction, inclusive of any costs,
exceeds £5, or the imprisonment awarded exceeds one month
(see the Summary Jurisdiction Act, 1879, sec. 19), and the
party thinks himself aggrieved ; and on such appeal the
following provisions will take effect : —

1. The appeal will be made to the next quarter sessions
held not less than twelve days after the day of the conviction
or adjudication ;

2. The appellant will, within three days after the day of
the conviction, and seven clear days at least before the
sessions to which the appeal is to be made give to the
complainant a notice in writing of the appeal, and of the
ground thereof;

3. The appellant may enter into recognizances with two
sufficient sureties conditioned to try the appeal to appear
personally at the sessions and abide the judgment of the
court, and pay costs awarded ; or where a pecuniary penalty
imposed, or the appeal is against an adjudication for the
payment of money, the appellant may deposit with the clerk
of the convicting justices such sum as thoae justices deem
sufficient, together with the costs ;

4. On entering into the recognizance, the appellant may
be liberated, if in custody ;

5. The court of quarter sessions are to hear and determine
the appeal, and make such order thereon, with or without
costs, as to the court seems fit ; and in case of the affirmation
of the conviction, or dismissal of the appeal, shall adjudge
the appellant to be punished according to the conviction,

THE WEIGHTS AND MEASURES ACT, 1878. 565

and to pay such costs as are awarded, and if necessary issue
process for enforcing the judgment ;

6. The court may order the penalty and costs to be paid
out of any deposit made under sub-s. 3 ;

7. On the conviction being quashed, the proper officer will
indorse on the conviction a memorandum that it has been so
quashed ; and a copy of such conviction with the indorsement
will be evidence that such conviction has been quashed.

See generally the previous remarks on the Summary
Jurisdiction Act, 1879, supra, and the right of the appellant
to elect to appeal under that Act. As to appeals in London,
or the metropolitan police district, see 2 <fe 3 Vict. c. 71, s.
50; 2 & 3 Vict. c. xciv. s. 101.

WEIGHTS AND MEASURES ACT, 1878.

41 & 42 Vict. c. 49.

The Weights and Measures Act came into operation on
January 1st, 1879, and provides for a uniform use of weights
and measures throughout the kingdom ; consolidating the
law, and repealing all previous statutes relating thereto : see
the sixth schedule.

The central administration of the Act is in the Board of Local
Trade : sec. 33. authorities.

The local administration is under the local authorities :
sec. 40.

By the fourth schedule, for England, the county local
authority will be the justices in quarter sessions ; for London,
the Lord Mayor and Aldermen; for a borough, the town
council : sec. 40.

But by sec. 50, a council for a borough, not having a
separate court of quarter sessions, is not the local authority
unless they so resolve, and provide local standards and
appoint inspectors. Upon the expiration of one month of
their giving notice thereof, under seal, to the clerk of the
peace of the county, they will be the local authority, and
the county authority will cease to have jurisdiction in the
borough. Where a council of such a borough had provided
itself with local standards and appointed inspectors, prior to
the 1st of January, 1879, that council continued to be the
local authority.

566

THE WEIGHTS AND MEASURES ACT, 1878.

Inspection
of weights
and mea-
sures.

The local standards will be duly verified from time to
time, and produced by persons for that purpose : sec. 41, 42.
Inspectors. Sec. 43 provides for the appointment of inspectors who
may be suspended or dismissed, and who will under sec. 47
enter into recognizances to the Crown for the due performance
of their duties : sec. 54.

Officers of the rural police may be appointed inspectors :
B. V. Jarvis, 3 E. & B. 640 ; 18 Jur. 1051.

Times and places will be fixed by the local authority for
the inspection of all weights and measures. And the w eight
or measure will be stamped, and a certificate given of
correctness.

Sec. 44 regulates the jurisdiction of the county inspector
to act for his otvn district within a borough.

Every weight or measure so stamped may be legally used
throughout the kingdom : sec. 45.

Sec. 48 gives inspectors full power under the wTitten
authority of a justice of the peace, at all reasonable times
to inspect all weights and measures, scales, balances, steel
yards, and weighing machines within his jurisdiction, and
which are used for trade.

Any person refusing or neglecting to produce all weights,
(tc, in his possession, or on his premises ; or who refuses to
permit the examination of the same by the justice or
inspector, or otherwise obstructs or hinders them from acting
under the section, will be liable to a penalty of £5 for the
first offence, and .£10 for a second : sec. 48.

An inspector acting in contravention of the Act, or without
verifying a weight, <fec., with the local standard ; or is guilty
of any breach of duty, or misconducts himself in his office,
will be liable to a penalty of £5 for each offijuce : sec. 49.

Every contract, bargain, sale, or dealing made in the
kingdom shall be had and made according to one of the
imperial weights or measures, and if not so made will be
void.

Any person selling by any denomination of weight or
measure, other than the imperial, will be liable to a penalty
of 40a\ for every such sale : sec. 19.

Every article sold by weight shall be sold by avoirdupois
weight :

Except gold and silver, and articles made thereof; also
platinum, diamonds, and other precious metals, and stones
which may be sold by ounce troy, or any decimal part
thereof; and drugs when sold by retail may be sold by
apothecaries weight.

Offences

and

penalties.

THE WEIGHTS AND MEASURES ACT, 1878. 567

Every person acting in contravention of this section will be
liable to a penalty of £5 : sec. 20.

Any person who prints, or any clerk of a market or other
person who makes any return, price list, price current, or
any journal or other paper containing any price list or price
current, in which the denomination of weights and mea-
sures quoted or referred are of a greater or less weight
or measure than the imperial, will be liable to a penalty
of 10s. for every copy of every such return or journal, &c. :
sec. 23.

Any person having in his possession for the use of trade a
weight or measure which is false (a) or unjust will be liable
to a fine of £5, and, in case of a second offence, <£10, and
the weight or measure will be forfeited : sec. 25.

Where any fraud is wilfully committed in using any weight
or measure, the person committing such fraud will be liable
to a fine of £5, and for a second offence £10, and th^
measure, &c., forfeited : sec. 26.

Any person wilfully and knowingly selling or making, or
causing to be made or sold, any false or unjust weight, &c.,
will be liable to a fine of £10, or, in case of a second offence,
£50 ; sec. 27.

Every measure and weight used for trade must have the
verification stamp. Any person having in his possession for
use for trade any measure or weight not so stamped, will be
liable to a penalty not exceeding £5, and for a second offence
£10, and forfeiture of such measures and weights. Any
contract made thereon will be void : sec. 29.

Sec. 30 directs of what material the weights may be made ;
a non-compliance with which will render the person offending
liable to a penalty of £5 for the first, and £10 for the second
offence.

The using an unstamped coin weight is liable to a fine of
£50 : sec. 31.

The forging or counterfeiting any stamp used for stamp-
ing measures or weights since or before the 1st January,
1879, or wilfully increasing or diminishing a weight " so
stamped," will be liable to a fine of £50 : sec. 32.

Any person who knowingly uses, sells, utters, disposes of,
or exposes for sale any measure or weight wuth such forged
or counterfeit stamp thereon ; or a weight so increased or

(rt-) This clause (25th) provides will be an offence now to have a

against the decision. Booth v. weight apparently in the seller's

Siuidgett, L. R. 8 Q. B. 352 ; 42 o/ivi favour.
L. J. M. C. 98 ; 29 L. T. 30. It

568 THE WEIGHTS AND MEASURES ACT, 1878.

diminished, will be liable to a fine of £10 ; and all such
measures and weights will be forfeited : sec. 32.

No second penalty shall be inflicted, unless the second
oflfence be committed after a conviction within five years
previously for an offence under the same section : sec. 58.

When any weight, measure, scale, balance, steelyard, or
weighing-machine is found in the possession of any person
carrying on trade within the meaning of the Act ; or on
the premises of any person which, whether a building, or
in the open air, whether open or enclosed, are used for
trade within the meaning of the Act, such person shall be
deemed for the purposes of the Act, until the contrary be
proved, to have had them in his possession for use for trade :
sec. 59.

By sec. 56, all offences under the Act may be prosecuted
before a court of summary jurisdiction in manner provided
by the Summary Jurisdiction Acts.
Appeal. ^^^ by sec. 60, any person aggrieved by any conviction

or order of such court, may appeal therefrom to the quarter
sessions having jurisdiction where the decision was given.

Any person who feels himself aggrieved by a conviction
or order of a court of summary jurisdiction under the Act,
may appeal therefrom, subject (in England) to the con-
ditions specified in (sec. 60) the Act. But the appellant
may elect to appeal under the Summary Jurisdiction Act,
1879. See Tit., Summary Jurisdiction Acts {supi^a).

In the preliminary requirements under the two statutes
there is some material difference.

By the first sub-section of the Weights and Measures Act,
the next practicable sessions to which the appeal is to be
made is the one to be " holden not less than twenty-one
days " after the day of the decision appealed on : under the
Summary Jurisdiction Act it is fifteen days. Should the
time have passed by for appealing under the Summary
Jurisdiction Act, there would remain six days for appealing
under the Weights and Measures Act, as before set out.

By sub-s. 2, Weights and Measures Act, the time for
giving notice of appeal is ten days after the day on which
the decision appealed on was given ; and such notice is to
be served on the other party, and the clerk of the court of
summary jurisdiction. Under the Summary Jurisdiction
Act seven days only will be allowed.

WRECK. 569

VTRECK,

Any person being in the possession of any goods, merchan-
dise, or articles of any kind belonging to any ship or vessel
in distress, or wrecked, stranded, or cast ashore, or being on
the premises of any person with his knowledge, and such
person shall not satisfy a justice (on summons) that he came
lawfully by the same ; penalty, either imprisonment with or
without hard labour for not exceeding six calendar months,
or else forfeit over and above the value of the goods, &c.,
not exceeding £20 (sees. 65, 66) ; in default of payment,
imprisonment with or without hard labour for not exceeding
two calendar months ; see scale in Summary Jurisdiction
Act, 1879, s. 5 (supra); see ante, Merchant Shipping Act, ,
sees. 441, 442, 443, 447, 450, 478, ante, pp. 372-3.

Any person offering or exposing for sale any goods, &c.,
unlawfully taken, or reasonably suspected so to have been
taken from any ship or vessel in distress, or wrecked,
stranded, or cast on shore, see Legge v. Bond, 1 C. B. 92 ;
14 L. J. C. P. 138 ; and who (on summons) before a justice
cannot satisfy him he came lawfully by such goods, &c. ;
penalty, the same as under the preceding section : sec. 66.

Any persons convicted for an offence concerning "wrecks" Appeal,
by a court of summary jurisdiction, will have their right of
appeal to the quarter sessions, as provided by the Larceny
Act, 1861, s. 110, ante, p. 197. They will also have their
election, as authorised by the 32nd section of the Summary
Jurisdiction Act, 1879, to appeal under the "rules and
regulations" contained in the 31st section of that Act : see
Ji. V. Montgomeryshire, supra, Summary Jurisdiction Acts.

Attention may, however, be again directed, as regards
appeals generally under all " past Acts," (that is, those Acts
passed prior to the Summary Jurisdiction Act, 1879,) to the
importance for appellants to watch carefully the very varied
" rules and regulations " to be followed in the appellate
procedure under each respective appeal clause in the several
Acts giving a right of appeal, and each of which will still
remain in full force, notwithstanding the Act of 1879. And
reference may likewise be pointed to the previous remarks
made on the general effect of that Act regarding appeals ;
and, in particular, to the result of the authorities, R. v. iSalop,
or H. V. /Shropshire, and H. v. Montgomeryshire, as they are
commented on under the title, " The Summary Jurisdiction
Acts."

INDEX.

ADMIRALTY,

offering false affidavit or writing to sustain claim to pay, &c., 20
personation of a pensioner, 20
appeal, 21

ADULTERATION. See Bread ; Food and Drugs ; Seed.

AFFILIATION,

time within which proceedings must be commenced, 29, 31

no order unless applied for within 40 days from service of summons,
30, 33

a widow is a " single woman " within meaning of Act, 30

a married woman may be treated as single woman under certain cir-
cumstances, 30

mother must be in English territory at birth of child, 30

application must be made by mother excepting where guardians may
apply, 31

if made before birth of child it must be upon mother's deposition on
oath, 30, 31

application b}'^ mother must be made within local jurisdiction, 31

summons must be issued by the justice who hears application, 32

application by guardians, 32

distinction between mother's and guardians' application, 33

service of the summons, 33, 34

proof of service, 34

service of summons goes to jurisdiction of Court, 35

presumption in favour of legitimacy, 35

onus of proof, 36

evidence of husband of non-access not admissible, 36

hearing may be adjourned, .36, 37

mother must be examined as a witness, 37

corroboration necessary, 37

examination as to connection with other men, 37

refusal of order is in nature of nonsuit, 38

and when summons dismissed on matter of form only, second sum-
mons may issue without fresh application, 38

but not when summons dismissed on merits, 39

where previous summons dismissed in another jurisdiction, 39

dismissal at petty sessions on ground of no corroborative evidence
is not a decision on the merits, 39

but at quarter sessions such decision is final, if the case has been
heard, 40, 47

572 INDEX.

AYYllAATIO'S—contimied.

drawing up the order. 40

the oral judgment is the decision, 41

bad order may be abandoned, 41

part of order good may be enforced, 41

what order may be made, 41

order not to be made after marriage of mother, 42

order made before marriage may be enforced after, 42, 43

proceedings on appeal, 44

death of the mother l>efore appeal heard, 47

quccrc, whether her deposition admissible, 47

putative father may be a v.itness, 48

maintenance may be reduced, 48

appeal may be abandoned, 48

enforcing the order under S. J. Act, 1879, 48

proceedings against soldiers, 48

AGRICULTURAL LABOURERS,

gangmaster may not hire children, young persons, or women, unless

licensed, 49
licence to be granted by justices in petty sessions, 49
licence not to i>e granted to any person having a liquor licence, 49
party aggrieved may appeal, 49

on api)eal, justices refusing licence should be respondents, 49
and they should be personally served with notice, 49

ALEHOUSES, 49. See Licensing Acts.

ANIMALS. See Cruelty to Animals ; Contagious Diseases (Ani-
mals) ; Slaughter Houses.

APPEAL,

what it is, 105

on what it lies, 105

right of, only where expressly given, 105

when given, is the only remedy, 117

provision for appeal incorporated with other statutes, 106

statutes in pnri iruiteria, 106

appeal "in like manner;" or, "as near thereto as the case will

admit," 107
analogous proceedings, 107
conditions precedent must be exhausted, 108
party must be in fact aggrieved, 108
and immediately, not consequentially, 109
grievance must be existing, 109
there must also be " good cause," 110
when cause of complaint accrues. 111
grievance on making of order. 111

adjudication, 111

failing to obtain relief, 111

service of notice of assessment, 1 12

penalty will not include costs, 112
a corporation may be aggrieved, 113
nominal parties may be aggrieved, 113
pauper may be aggrieved by removal order, 113

INDEX. 573

APPEAL — continued.

guardians may prosecute and defend appeal, 113
public officers' appeal by majority, 113
several persons may join in an appeal, 113

The respoiidents on.

party at whose instance complaint made, 114

party compelling litigation, 114

justices respondents, 114

party concerned, 115

party in whose favour order made, 115

parties interested, 115

where appeal is virtually against a whole rate, 115

death of, 116

Notice of,

is a statutory or implied condition precedent, 118
party convicted to be informed by justices that he may appeal, 119
statutable notice to be followed, 120
rules of sessions must be reasonable, 120
construction of notice is for the sessions, 120
practice under Baiues's Act, 121
notice by post, 123

time for giving, when Sunday counted, 123
on pauper removal, how days are calculated, 124
various expressions of time for appealing, 124
meaning of *' next sessions," 12(j

when sessions are practicable appeal should be heard or re-
spited, 128
time, when none pointed out by statute, 128
appellant must look to first day of original sessions, 128
rules of adjourned divisional court govern the hearing of divisional

appeal, 129
verbal notice, when sufficient, 130
" reasonable notice,'' 130

must state or show that the appellant is aggrieved, 130
description of the respondent, 130

appellant, 131

sessions, 131

matters appealed on, 131
signature of notice, 132
joint notices of appeal, 133
service of notice, 133

excused by death of respondent, 134
grounds of appeal, when to be stated in notice, 134
when distinct as to service, 135
signature of grounds, 135
service of grounds, 135
requisites in grounds, 136

knowledge of respondents may cure insufficient statement, 136
particular objection by statute must be pointed out, 137
general objection to order, 137
specific objection to order, 137
admission where no traverse, 137
sufficiency of grounds question for sessions, 137
fresh grounds may be allowed, 137

574? INDEX*.

APPExA-L — conthnted.

Tlie Court to xohich ap'peal must he made.

county no concurrent jurisdiction with borough sessions, 138
cases of paupers in county asylum, 138
under Highway Acts, 140
notice of trial, 141
entry of appeal, 141

not to be made merely for respite, 142
must be properly made, 142
for costs when order abandoned, 143
adjournment or respite, 143
when imperative ou sessions to respite as to poor law order or a poor

rate, 145
appeal to be received though not heard, 147

Tlie hearing.

right to begin, 148

recognisance to be in court, 149

amendment of recognisance, 149

additional evidence allowed, 150

but must be confined to grounds, 150

objection on a conviction to be taken in limine, 150

amendment of grounds of removal or appeal, 150

frivolous and vexatious appeals, 152

costs, 153

judgment, 153

entering award on arbitration, 154

chairman no casting vote, 154

judgment maj' be altered during session, 154

decision on facts final, 154

APPRENTICES,

statutory enactments relating to, 155
jurisdiction of justices, 15G
poor law orders, 157
definition under Stamp Act, 157
construction of indenture, 158
parish apprentice, 159
service with another master, 160
where master dead, 160

bankrupt, 160
discharge, 161

party aggrieved may appeal, 161
master neglecting to provide food, &c., 193

ARBITRATION,

appeal may be referred to, 161
production of award f(>r enrolment, 163
duty of sessions as to award, 154, 163
costs, 154, 164

ASSESSMENT ACTS. See Poor Law.
ASSESSMENT COMMITTEE, 430, 445

BAGATELLE. See Billiards.

INDEX. 575

BAKER. See colso Bread.

mast sell by weight, 164

except faucy bread, 164

must carry scales, 164

must not carry on business on Sunday, 165

offence by act of servant, 165

appeal from conviction, 165

MTHS and WASH-HOUSES,

appeal by party aggrieved by bye-law or order of council or com -
missiouers, 166

BETTING-HOUSES. See also Gamin-g.

no house or place to be kept open for betting, 166
betting- houses to be deemed gaming-houses, 166
appeal from conviction, 167
meaning of "place," 167
penalty on owner or occupier, 168

person receiving deposit on bet, 168
exhibiting betting placards, &c., 168
information must be laid within six months, 169
landlord's book evidence against him, 169

BILLIARDS,

licences for billiards and bagatelle, 169
no appeal from refusal of licences, 169
notice of licence must be exhibited, 169
penalties for offences against tenor of license, 170
what are offences against tenor of licence, 170

BOROUGH RATE,

where borough fund insufficient, rate in nature of county rate may

be made, 171
any person aggrieved thereby may appeal to Recorder, 171, 374
it need not be made in public, 171
it must not be retrospective, 172

BREAD,

statutory ingredients of, 21

penalty for adulterating, 21

made of any corn or grain other than wheat, to be marked, 21

possession of articles for adulteration of, an offence, 21

penalty for obstructing officers, 22

must be sold by weight, 164

party aggrieved may appeal, 22

BRIDGES,

Statute of Bridges, 22 Hen. 8, c. 5, 172

created no new liabilities, 173
where, within a city or town to be "made " by the inhabitants, 172,

173
liability to repair, where borough enlarged, 173, 174
on turnpike roads dis-turnpiked, 174
presentment of, 174
by whom repairable ^?'zmrt/act>, 175
Lord Gowers Act, 175
certified as public bridges, 176

576 INDEX.

BRIDGES- continued.

compensation for purchase of land required for, 176
immediate repairs, justices to order, 177
power to obtain material, for repairs, 177
compensation for materials, 177

CEMETERIES,

wilful damage done to, 179
appeal, 179

CERTIORARI,

issued on Crown side of the Queen's Bench Division, 179

not granted as of right, save to the Attorney-General, 179

distinction from right of appeal, 105

the means by which the Queen's Bench Division controls inferior

jurisdictions, 180
granted where a private grievance, 180
indictment against a corporation removable as of course, 180 (n.).

when indictment removed the judge cannot amend it on
trial, 180 {n. ).
formerly writ taken away by some statutes, 181
not required now on case stated on appeals, 181
general power of Court to issue writ where inferior Court acta without

jurisdiction, 182
or interested justice acts as part of court, 182
where inferior Courts act unreasonably, 183
must be moved for within six months, 183
from whence time for notice dates, 184
six days' notice of intention to apply to be given to justices, or two of

them, 184
computation of time — six days, 185
affidavit on motion, 185

how headed, 185
writ may be served on clerk of the peace, 15
costs, 185
practice since Summary Jurisdiction Act, 1879, 186

CHIMNEY SWEEPER,

not to employ children, 187
appeal on conviction, 187

CHURCH,

rioting in church, 187

appeal on conviction for rioting, 188

duty of the churchwardens, and not the clergyman, to collect alms,

188
the clergyman coUeciing alms not protected, 1 88

CINQUE PORTS,

justices of, have power to grant alehouse licence, 51, Addenda.
county justices have no jurisdiction in, 52

CLERK OF THE PEACE,
qualification of, 14
by whom appointed, 14
deputy for second court, 14
servic writs of mandamus and certiorari on, 15

INDEX. 577

COMxMONS INCLOSURE ACT,

discontinuance and stopping up of highways under, 188
appeal, 189

certificate of completion to be filed at quarter sessions, 190
proceedings conclusive, 190

COMPANIES' CLAUSES CONSOLIDATION ACT, 1845
appeal under, 191

CONSPIRACY AND PROTECTION OF PROPERTY ACT,

combinations in trade disputes, 192

breach of contract by person employed in supply of gas or water,
192
involving injury to life or property, 192
master neglecting to provide food, &c., to apprentice or servant, 193
intimidation of workmen, 198
defendant may elect to be tried by jury, 193
appeal, 194

CONSTABLE,

high, 194

parish, 195

neglecting duty, 195

appeal from conviction, 195

bound to act where hiisbaad neglects family, 198

CONTAGIOUS DISEASES (ANIMALS),

knowledge of owner or person in charge presumed, 97

onus of proving a due cleansing, 98

where offence deemed to have been committed, 98

detention by police, 98

party aggrieved by any determination under Act may appeal, 98

procedure on appeal, 98

CONVICTS,

not producing licence, 193

not conforming to conditions of licence, 196

COSTS,

sessions can only award by statute, 198

under Baiues's Act, 199, 204

real not nominal respondent the party to pay, 199

jurisdiction to award, given by act of appellant, 200

where appeal to wrong sessions, 200

on abandonment of appeal, 200

respondent entitled to, on countermand, 201

under Highway Act, 1835, 201

of indictment for obstructing highway, 295

on assessment of value of land taken, 312

order for, must be made at sessions at which appeal decided, 202

must state amount, 202
taxation out of sessions by consent, 202
under Licensing Act, 1829, 202

Jervis's Act, 203
payment to clerk of peace, 203
distress for, 203

c c

. 518 INDEX.

KJOSTS — continued.

, form of order for, 203

* imperfect order may be set aside, 204

. 'mandamus Where sessions are bound to give costs, 354

(30UNTY RATES,

• committee of justices for preparing basis of rate, 205
overeeers to make returns, 206
expenses of valuation, 206
. meaning of " fair annual value," 206

when basis altered vestry to have notice, 206

notice to be given of when sessions will consider the basis, 207

• basis allowed and confirmed to be valid, 207
subject to appeal, 207

committee may altgr basis, 207
notice of intention, 207
justices must act in open court, 208
appeal agaiust basis, JiOS
notice thereof, 209
court to determine appeal, 209

basis not to be quashed except in entirety to make new rate, 209, 211
court may adjourn for new survey, 209
costs of survey, 209
iippeal against rat^ 210
.notice thereof, 210 .
court to determine appeal, 211
•rate^to be collected notwithstanding appeal, 211
costs of appeal, 211
definitions, 211

.CXUTRT OF QUARTER SESSIONS,
constitution of, 1
jurisdict^o^ of, 4
when and where to be held, 15
convening of, 16
preliminary proceedings, 16
adjournment of, 17
rules of, must be reasonable, 120

rules of divisional court govern hearing of divisional appeal, 129
decision of, on facts, final, 154
cannot delegate its judicial authority, 518

CRIMINAL LAW,

appeal under Larceny Act, 197

Malicious Injuries to Property Act, 197

CRUELTY TO ANIMALS, 90
animals within the Act, 94
fighting or baiting animals, 91
compensation for damage done, 91
impounded cattle to be fed, 91
conveyance of animals, 92
the complaint, 92
conviction, 92
appeal, 93
administering poisonous drugs, 94

i

INDEX. 579L

CRUELTY TO ANIMALS— co?i^Mmc(^.
vivisection, 95

prosecution of licensed and unlicensed vivisectorsj 95 , * -

appeal from conviction, 95 ' •.***,•■'

statutory obligation on railway companies to provide water and food

for cattle, 97
tlie like on licensed slaughterers, 103
cruelty by licensed slaughterer, 103

DEALERS m OLD METALS,
definition of, 212 '

to comply with 17 & 18 Vict. c. 104, «. 480, 243
search warrant may issue, 213
onus of proof of honest possession, 213
appeal, 213

. t

DISSENTERS,

unregistered places for worship, 214

disturbing congregation in registered place, 214 (n.j

appeal, 215

DOCKS. <S(je Harbours, .*

DRUGGING OF ANIMALS. See Cruelty to Animals.

DRUGS. See Food and Drugs.

DYNAMITE. See Fish.

using, to destroy fish, 215

ESTREATS, ^ce Fines.

EVIDENCE,

best, must be produced, 216

documentary, 216

proof of deed, 216

when lost and there is a counterpart, 216
when deed and counterpart lost, 216

secondary evidence, 217, 220

presumption of loss of deed, 217

statements of person last in possession, 218

presumption that deed properly stamped, 218

burthen of proof that it was not, 219

notice to produce, 219

party calling for document must be prepared to prove it, 220

direct and presumptive evidence, 220

circumstantial evidence, 220

hearsay evidence, 221

dying declaration, 222

res gcsUc, 222

reputation, 222

statements against interest, 223

c c 2

580 INDEX.

l]VWEl!:CE— continued.

evidence of pedigree, 223
eu tries in books, 224
marriage registers kept abroad, 225
quarter sessions records, 226

presumption that persons acting in public capacity are duly autho-
rized, 226
burthen of proof, 227

shifted in revenue cases, 22S
negative averments, 227, 228
examination of witness, 228
experts, 229
corroboration, 229

party cannot impeach his own witness, 229
cross-examination, 230
impeaching character, 231
contradictory statements in writing, 231
impeacliiug credit of mother in affiliation case, 232
re-examination, 233

EXCISE. See also Licensing Acts ; Weights and Measures.
prosecution before commissioners, 233

metropolitan magistrates, 233

justices, 233
general provisions as to local jurisdiction, 234 ^

officer not to act as justice, 234
the information, 234
no objection on defect of form, 236
the summons, 236
service, 236

endorsement not required, 237
Jmbeas coi-jmsy when defendant in custody, 237
proceedings, ex jyarte, 237
proof of the information, 238

informant being an excise officer, 238
witnesses, 238
the hearing, 238

no amendment where wrong offence alleged, 238
merits of case only inquired into, 239
evidence where onus 2Jrubandi on defendant, 239
seizure of goods, 239
forfeiture of ship, 240
no inquiry as to informer allowed, 240
dismissal on merits bar to subsequent information, 240
fines, 240

names of witnesses to be returned to quarter sessions, 240
Summary Jurisdiction Acts apply to informations, 241
appeal by informant or defendant, 241
notice of appeal, 241

appellant from conviction to deposit penalty or goods to be retained, 242
notice of trial, 243
on hearing only same witnesses as examined or tendered before

justices, 243
special case, 243

enforcement of judgment confirmed on appeal, 243
where gunpowder may be manufactured, 244

INDEX. 581

EXPLOSIVE SUBSTANCES,
where it may be kept, 244
new manufactories to be licensed, 244
rules for registered premises, 245
government supervision, 245
appeal from order or conviction, 245

FINES, RECOGNIZANCES, AND ESTREATS,
recognizance, 246

decision on sessions as to recognizances final, 354
tines and forfeited recognizances to be certified to clerk of peace, 246
list to be examined by justices before estreat, 247
issue of writ, 248
dischgj-ge, 248

fines imposed by coroners, 248 * '

appeal against tine, 249
return by sheriff, 249
notice of motion to discharge, 249
borough fines, 249

FISH AND FISHERIES,

common law right to fish in navigable waters, 249

Freshwater Fishery Act, 1878, 250

definition of " freshwater fish," 250
close season, 250
• penalty on taking in close season, 250
appeal from conviction, 251

Salmon Fishery Acts, 251

conservators, appointment of, 251

powers of, 251
licences to fish, 251

Offe>ices suhject to appeal.
poisoning rivers, 252
tishing with lights, &c., 252
taking unclean fish, 253
close time, 253

selling salmon during close time, 253
taking young salmon, 254
using improper nets, 254
using fixed engines, 254, 256
"stop nets," 255
using dams, 255

dynamite, 258
gap to weir, 255, 256
fishiug in head or tail race, 255
failing to place gratings to artificial streams, 255
w-eekly close time, fishing in, 256

not leaving free passage in, 256
injuring passes, 256
drawing off water, 256
altering weirs without making passes, 256
spur walls in dams, 256
obstructing water bailiff, 257

officer posting notice, 257

582 INDEX.

FISH AND FISHERIES- cmUinued,
lishiug witLout licence, 257
refusing to show licence, 257
destroying notices, 257
exportation of salmon, 257

justice not disqualified by being a conservator, 257
appeal against penalty or forfeiture, 258
penalties ou second and subsequent convictions, 258
limitation of proceedings, 258

Sea Fisheries Act, 1868,
object of the Act, 259

penalties on offences against regulations, 259
entry of French boats within British limits, 259
register of vessel evidence of ownership, 260

Oyster and Mussel Fisheries Act, 1866,
jurisdiction of justices, 260
penalties for offences against the Act, 260
appeal from conviction or order, 261

FOOD AND DRUGS,
definitions, 23

mixing of ingredients injurious to health not permitted, 23
compounding excepted, 23
no conviction if party had not knowledge, 24
nor if article sold was of quality demanded, 24
ncr when sale bond fide, of article as supplied to vendor, 24
notice of defence must be given, 24
no sale to be made to tlie prejudice of the purchaser, 24
article of a different or inferior quality, 25
sale under a label, 25
exceptions to sec. 6, 25

notice of intention to have article analysed to be given, 25
officer may obtain sample of milk from place of delivery, 26
purchase by a private person, 26
refusal to allow officer to take sample, 26
recovery of penalties, 26
service of summons, 27

certificate of analyst evidence, unless defendant requires his attend-
ance, 27
onus of proof on defendant if he relies on any exceptions, 27
person convicted may appeal, 27

FRIENDLY SOCIETIES,

societies requiring registration, 262

registered societies failing to do or allow to be done anything

required by Act, 263
wilfully neglecting to give information, 263
making a false return or giving false information, 263
offence by society deemed to have been committed by officer, 263
falsification of books, 263

balance sheet or returns, 265
obtaining property of society by false representations, 264
payments on death of child under 10, 264
parent attempting to defeat provisions of Act, 264

INDEX. 583

FRIENDLY S0C\ZTIES— continued.

offences where society receives contributions by collector at a greater

distauce than 10 miles, 264
documentary evidence, 265
appeal, 265

GAMING. See also Betting Houses.
lirst laws against, 266

keeping gaming-house an indictable offence, 268
lotteries, 268

proof of a common gaming-house, 269
person keeping may be fined and dealt with as a " rogue and raga-

bond," 270
games of skill, 270
cheating at play, 270
appeal, 268, 270

GAS AND GAS MEASURES,

sale of gas to be i-egulated by uniform standard, 270
offences under 22 & 23 Vict. c. 66, by inspectors, 271

by other persons, 271
appeal under the statute, 272
offences under Gas Clauses Act, 272

by officers of company, 273
recovery of penalties, 274
appeal, 274
breach of contract by workman, 192, 274

GUARDIANS,

application by, for affiliation order, 32

may prosecute and defend appeal on order of removal, 113

HABITUAL DRUNKARDS,

" retreats " under 42 & 43 Vict. c. 19, 274

licensee of retreat failing to comply with provisions of Act, 274

neglecting inmate, 274
offences by subordinates, 275

drunkard while detained not complying with rules, 275
proceedings to be taken within six months, 275
appeal, 275

HARBOURS, DOCKS, AND PIERS,

statutory enactment as to unloading ballast, 276
appeal from conviction, 276

undertakers to provide watch-house for customs, 276
life-boat and rockets, 276
tide guage, 277
wrongfully claiming exemption from harbour dues, 277
master of vessel to report arrival, 277

produce his certificate, 277
discharge cargo without delay, 279
give account of cargo unshipped, 277
comply with regulations of harbour, 278

584? INDEX.

HARBOURS, DOCKS, AND TIERS— confiiated,
shipper to give account of goods shipped, 277
evadiug rates, 277

auuual account by undertakers to clerk of peace, 277
misconduct of harbourmaster, 27S
bribing officers, 278
vessel to be dismantled as directed, 278

entering to have sails lowered, 27S

to be secured, 278

not to be moored near entrance of harbour, 278

wilfully ciittiug moorings of, 278

to be removed during repair of harbour, 278
undue preference by wliarrtngers, 279
combustible matters to be removed, 279
obstructing officer, 279
throwing earth, &c., into harbour, 279
appeal, 280

HIGHWAYS. Sec also Commons Inclosube Act.
the Highway Acts, 280
highway boards, 281
justice as ex officio member, 282 *
waywardens, 282
tii-st meeting of board, 282
the clerk, 282
the surveyor, 282

nrl>au authority surveyors of highways, 283
and act as the vestry, 283, 313

ministerial acts by surveyors of urban authority, 283, 313
highway districts, 283
alterations of districts, 283

district to be co-incident in area with sanitary district, 283
rural authority as the highway board, 284
where district in more than one county, 284
powers of highway board vested in rural authority, 284
condition precedent to formation of distiict, 284
places separately maintaining their own highways, 284
part of parish included in district, 284
part of highways repaired under private Act, or by separate rate,

285
extra parochial places, 285
parish partly within a borough, 285
contiguous places, 285
urban authorities, 286
rural auLhorities, 286
exception in Act of 1878, 286

derinitions of "county," "division," "limit," 286
"limit" in 13 Geo. 3, c. 78, 289
proceedings under that statute, 289
appeal thereunder, 290
jurisdiction of a "limit," 290
detiuitious, 292

declaring roads as " main roads," 293
where turnpike road in two counties, 293
repair of higliway, 293
parish cannot be rid of liability by agreement, 294

INDEX. 585

niGUW AYS— continued.

new roads may be adopted, 294

expenses incurred in repairs of highways charged on district fund, 294

maintenance of "main roads " where district in more than one county,

29a
expenses of highway board for comnion use of several parishes, 295
non -liability of a hamlet, 295
costs of indictment for obstructing, 295
charges not allowed, 295
accounts of highway authority, 296
assessment for rate, 296
rate must be published, 296
the precept, 297

appeal by person aggrieved by rate to special sessions, 297
appeal to quarter sessions under Act of 1864, 297
conditions of appeal, 298
highway board may rectify rate, 298
arbitration where dispute on matters of account, 298
proceedings on appeal, 298

appeal against accounts where places in different counties, 299
general powder of appeal, under Act of 1835, 297
jurisdiction of justices, 300
procedure on appeal, 300
costs of appeal, 301

rate not to be quashed for want of form, 301
certiorari taken away, 301

highways repairable ratione tenurce made repairable by district, 301
borrowing power of board, 302
approval of justices, 302
auy person may oppose, 303
what are improvements of highways, 303
turnpike roads becoming main roads, 303
drift w^ays becoming highways, 304
discontinuance of unnecessary highways, 304

on change of circumstances liability to repair may be restored, 305
appeal to quarter sessions, 305

appeal from conviction or order under Act of 1878, 305
dedication of a highway, 306
conditions precedent, 308
appeal from determination of justices, 309
wideniug highways, 309

costs on assessment of value of laud taken, 312
discontinuing or diverting under Inclosure Acts, 312
stopping up at instance of local autliority, 313

any other person, 313
preliminary proceedings must be strictly followed, 314
certiticate of the justice-^, 314, 318

the view of the justices and subsequent procedure, 315, 318
where more than one highway jjroposed to be stopped up, 317
on appeal part of certiticate may be confirmed, 318, 320
appeal against enrolment of certiticate, 319
if no appeal, certificate to be enrolled, 318, 321
unless certificate made without jurisdiction of "limit," 321
jurisdiction of quarter sessions discussed, 322
where the certificate must be read, 322

doubts where highway in a borough with quarter sessions, 323

cc3

586 INDEX.

HIGUW AYS- co7itmiied.

Avliere a highway to be stopped up lies in two jurisdictions, 327
proceedings where roads are out of repair, 329
where liability to repair is disputed, 330
extraordinary traffic, 330
excessive traffic, 331

INDUSTEIAL SOCIETIES,

the Industrial and Provident Societies Act, 1876, 332
fraudulent possession or application of property of society, 332

INTIMIDATION OF WORKMEN, 193

JURISDICTION OF JUSTICES,
general, 4
must appear on face of record, 1 {a)

In jyarticular cases, see under varioics titles.

JUSTICES OF THE PEACE,
appointment of, 3
qualitication of, 3

liaviug interest, not to act, 5, 50, 234
when to be respondents on appeal, 114
committee of, for rating purposes, 205
c.v officiu members of Higliway Board, 281
county justices no jurisdiction in corporate boroughs, 52, add.

iu Cinque Ports, 52

LANDLORD AND TENANT,

removal of goods to avoid distress, 332

the order on conviction, 333

appeal, 333

railway rolling stock, when exempt from distress, 333

order for restitution, 334

appeal, 334

LANDS CLAUSES CONSOLIDATION ACT, 1845,
appeal under, 191

LARCENY ACT,

appeal under, 197

LICENCE TO EMPLOY WOMEN AND CHILDREN AS AGRICUL-
TURAL LABOURERS, 49

LICENSING ACTS, THE

licences granted at annual special meetings of justices, 50

justice beneficially interested in profits of house may no grant

licence, 50
recorder has no jurisdiction with reference to licences, 51
stipeudiciry may act under, 51
Cinque Ports justices may grant licences, 51, add,.
county justices have no jurisdiction under Act 1828 within Cinque

Ports, 52
nor iu boroughs, where borough justices have jurisdiction, 52

INDEX. 587

LICENSING ACTS— continued.

application for certificate or licence, 52, 53

contirmatiou of licence by licensing committee in counties, 53

in boroughs, 54
decision of committee final, 55
renewal or transfer not subject to confirmation, 55
procedure before committee, 55
annual value qualification of premises, 56
persons disqualified from holding licence, 57

definition of "licence," " new licence," "transfer," "renewal," 59
transfer of licence, 60, 62
removal of licence, 56, 60, 62
distinctions as to jurisdiction of justices in granting " transfers " and

"removals," 61
renewal of licence, 63

remedy by mandamus or appeal where justices act without notice, 64
who may oppose grant, 64
the hearing, 65

owner of licensed house to be registered, 65
occasional licences, 66

clerk to licensing justices to keep register, 67

party aggrieved on application to renew or remove may appeal, 67
original jurisdiction conferred on quarter sessions, 68
rules of sessions, 69
notice of appeal, 69
summoning witnesses, 69
costs, 69, 202

summary proceedings under Acts of 1872 and 1874, 70
appeal against conviction, 71

under Summary Jurisdiction Act, 1879, 72
offences under the Acts of 1872 and 1874, 73

in reference to sale of intoxicating liquors, 73

by person not licensed, 85
recording conviction on licence, 86
disqualification of premises, 89
notice to owner, 89
appeal to petty sessions, 90

LUNATIC PAUPERS,

the Lunatic Asylum Act, 1853, 334

boroughs deemed annexed to counties for purposes of Act, 334

superintending committee, 335

transfer of pauper to asylum, 335

examination of pauper, 335

by whom order for removal may be made, 336

residence in asylum deemed residence in parish chargeable for pur-
poses of settlement, 336

chargeability of pauper lunatic found in a borough, 336

order for maintenance on removing parish, 337

when settlement cannot be ascertained pauper chargeable to county,
337

status of irremovability not acquired by residence in asylum, 339

when pauper exempt from removal, parish removing him to asylum
is chargeable, 339

when maintenance in asylum is "relief," 339

two justices may order maintenance on parish of settlement, 341

588 IXUEX.

LUNATIC VAUPERS—oyntmued.
jurisdictioa of justices, 342

guardians of a parish may recover costs and obtain orders, 342
appeal from order adjudging settlement, 343
the depositions, 344
notice of ai^peal, 344

grounds of appeal and notice of trial, 345, 348
Baines's Act does not apply, 345
abandonment of order, 345
officer of parish from which lunatic sent to remove and receive him

on discharge, 34G
grounds of adjudicatioD of settlement to be sent to guardians, 347
order for maintenance and settlement may be in one, 347
order where parishes united under Gilbert's Act, 347
Criminal luivatic pauperg, 349

MALICIOUS INJURIES TO PROrERTY ACT,
appeal under, 197

M.iyDAMrjS,

the writ, 349

not granted where another remedy, 350
granted where sessions wrong in law, 350
where only one side heard, 351

where hearing of appeal refused after entry and respite, 352
where rule of sessions not justified, 352
rules as to time must be precise or writ may go, 353
decision of sessions on amendment iiual, 354
so as to recognizances, 354
where sessions bound to grant costs, 354
to issue process, 354
to state case refused, 521
ap])licatiou should be made in first term, 354
service on clerk of peace gootl, 15
party cannot have mnndamus and special case, 521
distinction l)etweeu granting of niaiulamiis and decision of special
case, 528, n. (6)

MARKETS AND FAIRS,

notice of opening a market, 355
selling without paying toll, 355
exposing for sale, '^o^t
obstructing officer, 355
vendor to weigh on sale, 355
bye-laws, 356
appeal, 356

MERCHANT SHIPPING ACT,

limit of time for prosecution, 356

punishment for offences declared to be misdemeanours, 356

appeal where penalty exceeds £5 or imprisonment one month, 357

impeding supervision by proper officers, 358

neglecting to register change of ownership, 358

detaining ship's cei-tificate, 358

using improper certificate, 358

not giving notice of lost certificate, 358

INDEX. 589

MERCHANT SHIPPTXG AOT—continwd. .

not producing certificate of sale, 359

assuming foreign character, 359

making false declaration of ownership, 359

using unauthorised colours, 359

shipping master receiving remuneration on hiring of seamen, 359

employing nncertiticated officer, 359

offences in respect to the engagement, pay, and discharge of ap-
prentices and seamen, 35'J

forging document to show right to deposit in savings bank for
seamen, 361

master not accounting for money, 362

forgery or false representation to obtain wages, 362

leaving apprentice or seaman on shore, 362

refusing passage home to distressed seaman, 332

not allowing seaman to leave for Royal Navy, 363

not providing proper supply of water, 363

not keeping proper weights and measures for provisions, 363

going to sea without certificate of medicines, 363

not allowing sufficient space for men, 363

not permitting seaman to make complaint, 363

unauthorised persons boarding ship before seamen discharged, 363

breaches of discipline, 364

crimes ou the high seas and abroad, 366

oti'ences in respect of the log book, 367

with respect to the safety of a vessel, 368

passenger damaging machinery or obstructing crew, 369

master or owner neglecting to report accident, 369

wilfully preventing report of proceedings in naval court, 370

carrying dangerous goods, 370

pilot ))oats, 370

compulsory pilotage, 370

offences by pilots, 371
• wilful damage to lights, buoys, &c., 372

offences with respect ix) wrecks, 372

dealers in marine stores, 373

MIDDLESEX SESSIONS,

specially constituted, 1
assistant judge of, 2

MUNICIPAL CORPORATION ACTS,

appeal against a borough rate, 374
oifences under local Acts, 374
limit of prosecutions, 374
appeal against conviction, 375

NOTICE OF APPEAL. See Appeal.

OVERSEERS AND RATE COLLECTORS,

not attending at elections with rate books, 190
information to be laid within six months, 190
appeal from conviction in metropolitan district, 190

elsewhere, 191
overseers to make returns for rating, 206

590 IXDEX.

PAWNBROKERS,

Pawnbroker's Act, 1872, 375

who deemed to be carrying ou business of a pawnbroker, 375

not keeping proper books, 376

not keeping name exhibited, 376

not giving a pawn ticket, 376

taking too great profit, 376

not giving receipt on redemption, 376

auctioneer actiug in contravention of Act, 376

offences with respect to pledges above lOs. , 376

general restrictions, 377

unlawful pawning, 377

prohibited pledges, 377

penalties, 378

appeal, 378

PIERS. Sec Harbours.

POOR LAW,

Poor Rale,

foundation of, 43 Eliz. c. 2, 379

definition, 3 & 4 W. 4, c. 76, s. 109, 379

not a tax on land, 379

not included in a covenant to pay ** all taxes," 379 (n).

a tax on the inhabitants, 378

extended to miners, 379

underwoods, 379
sporting rights, 379
parish may be divided for ecclesiastical and parochial purposes, 379
where parish in two divisions with separate overseers and rates but

one accounting, they are joint overseers, 380
where parish in two jurisdictions, overseers nominated by each for the

whole parish, 380
one rate for the whole parish to be made, 380
where parish subdivided, or added to a union, the Poor Law Board

will determine the proportions of rate, 380
an extra parochial place deemed a paiish, 380
bounds of the parish, 381

sea shore, extra parochial, 381
piers beyond low-water mark, 381
river boundary, 381
highway in medium filum, 381
adjustment of bounds, 42 & 43 Vict. c. 54, 382
evidence by reputation of bounds, 382
award of Inclosure Commissioners, 382
award in a suit inter alios, 382
valuation list to be prepared by overseers, 382

settled by assessment committee, 382
supplemental lists may be made, 381
authority to make the rate must be shown ex fucie, 383
where rate good, ex facie, subject to dispute only by appeal, 383
not to be retrospective, 384
made from time of its allowance by justices, 384
to be published in all churches and chapels in the parish, 384
non -publication of rate, a radical defect, 384

where neither church nor chapel, publication in some conspicuous
place, 384

INDEX. 591

POOR LASV—continiLcd.

Poor Rnte,

rate cannot be abandoned when once made, 384

but overseers need not support it on appeal, 384

"gross estimated rental," 384

•' net annual v^alue," 385

deductions made from rental, 385

not to include tenant's water rate, 385

tenant paying repairs, costs added to rent, 385

relative liabilities of rating not altered, 385

present annual value to be rated rebus sic stantibus, 385

what is "present" value, 386

rent not rateable j^er se, 387

nor the standing rule on which to make the rate, 387

rate formerly on " ability to pay," 387

result of " Union Assessment Act, 1862," 388

no inquiry to be made as to profits of trade, 388

but trade profits may form an element in assessing the value of the

rent, 389
occupier is rateable, 390
occupation in more than one parish, 390
the "parochial earning system," 390
the "average principle," 390
an interest in soil of the land requisite, 391
beueticial occupation, 391
exclusive i)ossession requisite, 392
occupation shifting, 392
rights of sporting, 393
rights severed from the occupation, 393
right of fishing, 393
right of way, 393
rights of common, 394

right must be sufficient to give action of trespass, 394
lines and quit rents, 394 .
moorings, 394
telegraph posts, 394
pul:)lic institutions, 395, 397
where j)rotits are restricted by statute, 396
hospitals, 396
lunatic asylums, 396
resident officers of asylum, 397
land used for health of inmates, 397
industrial scliools, 397
Sunday and ragged schools, 397
charity school, 397
market trustees, 398
waterworks commissioners, 398
cemetery company, 398
local board of health, 398
union workhouse, 398
mimicipal corporations, 398
collegiate corporations, 399
dissenting chapels, 399
crown and public property, 399, 400
prisons, 399

592 INDEX.

POOR LAW— cow^wmcd.
Poor Rate,

excess of accommodation for personal use of government officials, 399

tenants of the crown, 400

local police, 400

county courts, 400

judges' lodgings, 400

reformatories, 400

government buildings when let, 401

tolls, 401

tithes, 403

deductions from tithes, 404

lands acr[uired under I^nds Clauses Consolidation Act, 405

railways, 405

principles of rating as held by Queen's Bench, 405

railway commissioners, 407
local expenses, 409
branch lines, 409
stations, 409
tramways, 410
canals, 410

rateable in each parish through which canal passes, 411
expense of locks not to be deducted, 412
waterworks, 412

service pipe, 413
springs, 413
reservoirs, 413
gasworks, 415
docks, 416

dock. warehouses capable of independent occupation, 417
dock buildings, 417
dock tolls, 417

docks in several parishes, 417
mines, all rateable, 417

gross and rateable value of lead and copper mines, 417
who to be rated as occupier, 418
detinitious, 418

deductions by tenant of mine, 419
dues reserved in kind, 419
unproductive mines, 420
the preseut value rateable, 420
where mine worked, occupier rateable, 421
mines under two parishes, 421
underwood, saleable, 421

meaning of "saleable underwood," 422
whether rateable, determined by mode of treatment, 422
rateable in coiinnuniims annis, 422
farm lands, 423

machinery attaclied to buildings, 423
vacant premises. 424

houses recently built but unoccupied, 424
incoming and outgoing tenants, 425
small tenements, 426

owners to be rated, 426

estimated rental and valuation to be in list, 427

power to compound, 427

INDEX. 593

POOR IjK\N— continued.

Poor Rate,

small tenements, allowance to owners on rate, 427
where owner rated ultra vires, 42H
remedy by appeal, 428
tenements wholly let in lodgings, 428
full rateable value to be entered in rate book, 428
accuracy in amount charged, 429
appeal agaiust rate, 429
Assessment Ads, 429

the Assessment Committee, 430
its authority, 430
the valuation list, 430

all rateable property to be inserted, 430

deposit and notice of list, 430

notice to public companies, 431

inspection of lists, 431

objection to list, 431

committee to meet and hear objections, 431

list may be corrected by committee, 432

new houses should be inserted, 432

deposit of corrected list and notice, 433

further objections, 433

list, when approved, to be kept by overseers, 433

supplemental list, 434

objections thereto, 434

appeal to quarter sessions, 434

the hearing, 436
rate only to be made in accordance with valuation list, 436
provision where alteration in occupation, 436
no provision for correction of inaccuracies in rateable value, 437
in what cases an appeal will lie, 437
when object of rate legal ex facie, 438
where rate a nullity, 438

appeal to special sessions, 438 . "

jurisdiction of special sessions, 439
conditions of appeal under Act of 1864, s. 1, 439

appellant must have " failed to obtain relief " from assessment com-
mittee, 439, 440
assessment committee co-respondents, 440
services of notices on committee, 440
appellants' rights before the committee must be exhausted before

appeal, 441
there must be a decision on the merits by the committee, 442
when committee make an alteration in rate, 442
appellant confined to grounds of appeal before committee, 442
but not restricted to the evidence, 442
when parties need not go before committee, 442
appeal must be to next practicable sessions, 442

whereseveralratepayers join.someof them may abandon the appeal, 443
notice of decision on appeal must be given to overseers, 443
costs of new survey and valuation in discretion of court, 443
compositions for rates not affected by Act 1862, 443

The Valuation {Metropolis) Act, 1869.
definitions, 444

594 INDEX.

POOR 'LA.Vi'—cmitinued.

The Valuation {Metropolis) Act, 1869.
assessment committee, 445
valuatiou list, 445
rules for formatiou of list, 445
deductions from gross value, 446
notice of alteration to be given to occupier, 446
objections before committee, 447
the notice to be given, 447
revision of list, 447

deposit of list and notice by overseers, 447
appeal to special sessions, 447
who may appeal, 448

parties may still appeal to assessment sessions, 448
powers of special sessions, 448
the assessment sessions, 448
who may appeal to assessment sessions, 449
proceedings on appeal, 449
valuation list may be confirmed or altered, 450
if no approved list for a parish, sessions may appoint a person to make

one, 450
Court may adjourn hearing until new list is received, 451
costs in discretion of Court, 451
special case niay be stated, 451
notice of decision to be served on clerk to assessment committee and

the oveis.'eis, 451
duration of the list, 451

the list is conclusive evidence of rateable value, 452
service of notices, 452
publication of notices, 452
clerical error in rate in metropolis may be amended by two justices or

a magistrate, 452
omissions may be corrected in like manner, 452
form of rate, 452

Removal and Settlement of the Poor^
settlement generally, 453
formation of present law, 453
settlement defined, 454
who may acquire a settlement, 454
how it may be acquired, 454
place of settlement, 454
exceptions to general rule, 455

born of a prisoner in gaol, 455

born in place for charitable reception of pregnant women,
455

born in hoiv'je of industry, 455

prisoners for debt, 455

toll-gate keepers, 455
house in occupation of parisli, 455
union of parishes, 455
residence in union, 455
casual poor, 456

what is considered "relief," 456

where husband beyond seas, or lunatic, or wife living apart, 457
relief to child under sixteen, 457

INDEX. 595

POOR LAW —continued. »

Removal and Settlement of the Poor.

Irish aud Scotch fanjilies, 457

irremovability by reason of residence, 458 '

break in residence, 458

when removable by reason of sickness, 458

form of order, 458

temporary absence, 458

what may be considered a place of residence, 459

inference that pauper intended to stay away, 459

what time excluded from computation of length of residence, 460

wife or children irremovable only where husband or father is irre-
movable, 461

abandoned child may acquire a settlement, 461

accidental absence of husband will not affect removability of family, 461

residence of a widow, 461

female pauper marrying a foreigner, 462

on desertion by husband, wife may become irremovable and gain a
settlement, 462

but not as the head of the family, 462

children under sixteen, 462

illegitimate children, 463

derivative settlements abolished, 463, 472

three years gives a residence, 463

unmarried woman enceinte not removable, 463

children under seven, 463

pauper should be examined as to his settlement before removal order
made, 463

complaint essential, 463

authority of justices should be shown on the order, 463

wife and children should be named in order, 464

that pauper had come to inhabit should appear, 464

findings of justices must be positive, 464

suspension of order, 464

costs during suspension, 464

removal under the order, 464

where notice of appeal is given, 465

authentication and services of notice, 465

clerk to justices to keep copies of depositions, 465

effect of removal under valid order, 465

when boards of guardians may act, 465

abandonment of removal order, 466

supersedeas by justices, 466

general powers to abandon, 466

effect of notice of abandonment, 467

settlement by apprenticeship, 467

effect of 39 & 40 Vict. c. 61, 468
birth, 468

orders made on hearsay evidence, 469
duty of justices to examine pauper, 469
declarations of parents not evidence, 470
distinction between what is evidence of pedigree

and place of birth, 470
principles stated by Lord Ellenborough, 470
evidence on which birth settlement should be
made, 471

596 IXDEX.

POOR TjA-W—corUinned.

Removal aivd Settlcnunt of the Poor.
settlement by certificate, 472
derivation, 472

marriage of mother does not change child's
settlement, 473
settlement of wife, 473
" emancipation " of children, 474
possession of estate, 474

where purchase for less than £30, 475
where money expended on estate after pur-
chase for less than £30, 476
mortgagors in possession, 477
guardian in socage, 477
equitable estate is sufficient, 478
trustee and cestui que trust, 478
executors and administrators, 479
under dower, 479

estate in remainder or reversion, 480
estate of wife, 480
residence on the estate, 481
parentage, 485

legitimate children, 485
illegitimate children, 485
mariiage of mother of bastard child, 486
where parent's settlement is derivative, 486
second marriage of mother gives no settle-
ment to children of first marriage, 486
settlement may be lost by residence of child
out of control of parent, 486
relief, 487
renting a tenement, 487

actual occupation and rent to amount to £10

paid, 488, 491
and assessed to poor-rate, 488
limit of residence after removal, 488
delinition of tenement, 488
an alien may acquire a settlement, 490
meaning of "coming to settle," 490
contract for the hiring must be hond fide, 490,

492
presumption of tenancy from occupation, 491
effect of acceptance of rent by landlord, 491
apportionment of the rent, 492
the occupation, 493

the tenancy for a year must be completed by
the same person, 494
residence, 494

course of legislation, 494

irremovability by residence, 495

child under seven may acquire a settlement, 495

lunatic wife takes settlement of husband on

his residence, 490
married woman living apart may acquire
settlement, 496
payment of rates, 496

INDEX. 597

POOR LAW— continued.

Removal and Settlement of tlie Poor.

settlement by payment of rates, actual occupation not necessary, 498

requirements to gain settlement, 499
payment of one rate sufficient, 499
being " charged" to the rate, 500
what amounts to payment of the

rate, 501
entry on rate book, 501
what residence required, 501
proof of payment of rates, 502

efifect of order not appealed from, 482

how far statements therein are conclusive, 482

effect of confirming or quashing order on appeal, 483

quashing does not atfect third parties, 484

when quashed but not on merits, 484

order is evidence only on matters incident to point decided, 484

POST-OFFICE.

infringement of privilege of Postmaster-General, 502

master of ship refusing to take letter bags, 503

breaking seal on letter bag, 503

negligence and misconduct of persons in charge of letter bags, 503

jurisdiction of justices, 503

appeal, 504

application of Summary Jurisdiction Acts, 504

PUBLIC HEALTH,

appeal against rate, order, or conviction under Public Health Act, 505

must be made to next court not less than twenty-one days after, 505

notice to other party must be given within fourteen days, 505

recognizances must be entered into, 505

if appellant in custody, he is then to be released, 505

on hearing of appeal against rate, the Court has same powers as an

appeal against poor rate, 505
on other appeals, Court may confirm, reverse, or modify the decision,

505
decision will be binding on all parties, 506
special case may be stated, 506

Offences under the Act.

improperly connecting drains with sewers, 506

building without drainage communication, 506

building over sewer without consent, 506

allowing nuisances on premises, 500

neglecting to remove nuisances after notice, 506

injuring meteis, 506

letting or occupying cellars, 506

keeper of common lodging-house receiving lodger where house un-
registered, 507
failing to make report, 507
failing to give notice of infectious
disease, 507

nuisances defined, 507

duty of local authority to abate nuisances, 508

penalty on disobedience of order of Court, 509

598 IXDEX.

PUBLIC KEALTR— continued.

OJFenres under the Act.

appeal against order, 509

complaiut by private person, 509

nuisance caused partly out of district, 509

carrying on offensive trades without consent, 510

duty of local authority, 510

summons, 510

selling unwholesome meat, 510 i

inspection, 510 »

obstructing officer, 510

spreading infectious disease, 510

letting infectious houses, 511

false statement as to infectious houses, 511

violating regulations of local government board, 511

bye-laws of local authority, 511

defaulting officers, 511:

proceedings as directed by Summary Jurisdiction Act, 511

jurisdiction of justices, 512

forms and service of notices, 512

RAILWAY CLAUSES CONSOLIDATION ACT, 1845.
appeal under, 191

.KATE COLLECTOR. See Overseers.

RECOGNIZANCE. See Fines.

RECORDER. See Add.
appointment of, 8
sole judge of borough sessions, 8
may appoint a deputy, 9
extent of jurisdiction, 9
hears appeal from borough rate, 171
no jurisdiction to grant a licence, 51

REMOVAL OF THE POOR, 453. See Poor Law.

ROGUES AND VAGABONDS,

statutory enactment, 512

idle and disorderly persons, 513

rogues and vagabonds, 514

incorrigible rogues, 517

appeal from conviction, 518

informant liable for costs, 518

appellant not appearing may be apprehended, 518

SEED,

person killing or dyeing, subject to penalty, 28

not necessary to prove intent to defraud any particular person, 28

appeal, 28

SETTLEMENT OF THE POOR, 453. See Poor Law.

INDEX. 599

SLAUGHTER-HOUSES,

to be licensed at quarter sessions, 99

horse dealer not to hold licence, 1)9

in towns licence also to be obtained from commissioners, 100

in metropolis new slaughter-houses prohibited, 100

quarter sessions licence annual, 100

licence may be cancelled, 101

suspended, 103
obligations of licence, 101
duties of inspectors, 101
appeal, 104

SPECIAL CASE,

sessions cannot delegate its judicial authority, 518

former practice of reference to judge of assize, 518

such reference was consultative only, 519

present practice when doubt as to law, 519

when quarter sessions act within jurisdiction, Queen's Bench Division

can act only on special case, 520
granting of special case always encouraged by Q. B. D. where sessions

doubt the law, 520
facts must be found by the sessions, 521
mandamus to state case refused, 521

court will not entertain case reserved upon indictment, 521
party cannot have mandamus and special case, 521
but where parties failed to agree on case, mandamus was granted,

521
removal of pauper where special case abandoned, 521
judgment of superior Court becomes final judgment of sessions, 522
the jurisdiction of appellate Court on special case is mandatory, not

consultative, 522
certiorari abolished as to special case, 523

clerk of the peace should transmit case direct to Crown office, 524
costs, 524

time for special case not now limited to six months, 525
where parties cannot agree chairman to state case, 525
sessions are limited in statement of case to questions of law on facts

found, 525
instances of what the sessions must find, 525

the Queen's Bench will not review the discretion of the justices, 527
the form of a special case, 528

the Court will not decide a mere preliminary point, 528
distinction between decision on special case and the granting of a

raandanvus, 528, n, {b)
Queen's Bench is confined to statement in the case, 529
but is not at all times bound by the findings of the sessions, 529
Court will not interfere unless decision manifestly wrong, 529
remission of case to sessions for amendment, 530
additional evidence on hearing remitted case, 531
practice on the re-hearing, 531
case may be stated by consent or leave of a judge or notice of appeal,

531
case under Jervis's Act, 532
refusal of frivolous application for case, 533

600 INDEX.

SPECIAL CASE— continued.

case on dismissal of a summons, 533

Queen" s Bench may order a case to be stated, 533

jurisdiction of Queen's Bench on Crown side, 533

rules of Court, 533

costs where case not lodged, 534

application for costs, 535

SUMMARY JURISDICTIOX ACTS.

Acts of 1848 and 1879 to be construed as one, 535

distinction between conviction and order, 535

omissions which will vitiate a conviction, 536

technical words unnecessary in information, 536

application of tlie Acts. 536

exceptions under 35th section, 537

exceptions as to the naval and military forces, 537

limited application to post office and revenue cases, 537

cases to be heard by courts of summary jurisdiction only in open

court, 538
the clerk to the Court, 538

fines may be inflicted instead of imprisonment, 539
scale of punishment by imprisonment on non-payment of fine, 539
order of distress is a condition precedent, 539, n. (a)
on appeal quarter sessions may alter punishment, 539
form of the conviction, 539
distril)utiou of the penalty, 540
convictions must not be in alternative, 540
particularity in convictions, 541
informalities may l)e corrected, 541
filing convictions with clerk of the peace, 541
appeal under Act 1879, s. 19, where imprisonment without option of

fine and appeal not otherwise authorised, 542
rules and regulations of sect. 31, 542
optional appeal under sect. 32, 544
acts giving a bare right of appeal, 545
convictions exempted from Baines's Act, 545
notice where there is a general or bare appeal without conditions,

545
reasonable notice, 545
quaere, is sect. 31 applicable to the hearing of an appeal under a past

Act? 550
election to proceed on sect. 32, 550
notice of appeal, 551
service on " the other party," 551

service on justice or Court of summary jurisdiction, 551
entering into the recognizance, 551
releasing the defendant thereon, 551
distinction as to the hearing of the appeal, 552
technical objections, 552
selecting the appellate statute, 552
Act appealed under must not be left to inference, 553

THEATRES.

keeping open unlicensed house for stage plays, 553

INDEX. 601

THEATRES— continued.

performing a play before it has been allowed by Lord Chamberlain,

or after it has been disallowed, 555
appeal, 555

TIME

regulated by Greenwich mean time, 555

"forthwith," ''immediately," "instantly," " directly," 555

where no time expressly mentioned, law allows reasonable time, 555

'• ten days at least," 556

' ' ten clear days, " 556

"within ten days," 556

Sundays, 556

time "after the cause of complaint," 557

week, under Factories and Workmen's Act, 1878, 558

"to any quarter sessions to be liolden within six months " appeal

must be within, 558
" within three calendar months next after such conviction " pai'ty

has three months to signify his intention, 558
" next possible," '• next practicable," 558
time from which to date notice of appeal, 558

TOWNS IMPROVEMENT CLAUSES ACT, 1847.

appeal against rate under section 185 to special sessions, 559
appeal from special to quarter sessions, 559
appeal against order of commissioners, 560
offence by creating a nuisance, 560
right of appeal on conviction, 561

TRADE DISPUTES,

combination in, 192

TRADES UNIONS,

obtaining effects of a union by false representation, 561

neglecting to have registered address, 562

not transmitting to registrar a statement of account, 562

making false entries, 562

appeal, 562

costs, 562

VALUATION LIST, 382, 430, 445. See Poor Law.
VALUATION (METROPOLIS) ACT, 1869, 444. See Poor Law.
VIVISECTION. Sec Cruelty to Animals.

VOLUNTEER FORCE,

volunteer wrongfully damaging or refusing to deliver up property of

corps, 563
any person improperly dealing with property of corps, 563
wilful injury to butts or targets, 564

demanding or fraudulently obtaining exemption from a toll, 564
procedure on appeal, 564

D D

^02 INDEX.

WEIGHTS AND MEASURES,

the statute of 1878, o65

the authorities for admiuistering the Act, 565

appointmeut aud powers of inspectors, 5G6

offences and penalties, 566

procedure on appeal, 568

WITNESS. See Ea^de^ce.

VVKECK,

unlawful possession of wreckage, 569

offering or exposing for sale, 569

appeal under Larceny Act, 569

appeal under Summary Jurisdiction Act, 569

THE END.

BRADBIRY, AGNLW, & CO., PHIN'i'KRS, WHITICKRIAK.S.

u appUcafinn to S. & H.\

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