Q.B. Div.]

sell liquors during prohibited hours. I am fortified in this construction of the offence created by sect. 9 by the effect which the other construction would give to sect. 25 of 35 & 36 Vict. c. 94. By that section any person found upon licensed premises during prohibited hours may be convicted "unless he satisfies the court that he was an inmate, servant, or a lodger on such premises, or a bonâ fide traveller, or that otherwise his presence on such premises was not in contravention of the provisions of this Act with respect to the closing of licensed premises." These two Acts are to be read as one. Taking these sections together, I think it safer to hold that magistrates must be satisfied that premises are open for the purpose of sale before they are justified in_convicting under such circumstances as these. I agree with Mr. Biron that Brigden v. Heighes was decided on the ground that the grocer's shop was bonâ fide closed at ten o'clock, but the point upon which this case must turn was not present to our minds. We thought there was no evidence that the premises were open within the meaning of the Act, and although we are represented to have concurred with Mr. Manisty's arguments, we did not consider whether premises open with no purpose of sale came within the offences created by the 9th section of the Act of 1874. This conviction will, therefore, be quashed.

FIELD, J.-I am of the same opinion, and I quite agree that we are not bound in this case by the authority of Brigden v. Heighes. Here the appellant kept his licensed premises open during prohibited hours, but the magistrates seem to have found his intention was bonâ fide not to sell or expose for sale any intoxicating liquors, or to open or keep open his premises for the purpose of selling such liquors after the hour of closing. The magistrates seem to have been of opinion that notwithstanding these findings the law was too strong for them, but I think not. Under the circumstances they should not have convicted.

Judgment for appellant.

Solicitors for appellant, T. and G. Braikenridge. Solicitors for respondent, Palmer, Bull, and Fry, for Scudamore and Fry, Maidstone.

Monday, June 18, 1877.

WOMBWELL v. CORPORATION OF BARNSLEY. (a) Arbitration under Lands Clauses Act-Taxation of costs-Agreement between parties-6 & 7 Vict. c. 73, 8. 38-Lands Clauses Consolidation Act 1869 (32 & 33 Vict. c. 18, s. 1).

The Corporation of Barnsley demanded of a neighbouring landowner a statement of his interest in certain lands required for the disposal of sewage under the Lands Clauses Consolidation Act 1845, and in answer a claim was made for compensation, and notice given to settle by arbitration. Arbitrators and umpire were duly appointed, but before award the parties agreed in writing that the corporation should have immediate possession of the lands required upon certain terms as to payment of interest; the corporation were to pay all costs incidental to the agreement, arbitration, and conveyance of the land as between solicitor and client, and the time for making the award might be extended. Upon delivery of the bill of costs after the award, the (a) Reported by M. W. MCKELLAR, Esq., Barrister-at-Law.

[Q.B. DIV.

corporation applied to have taxation, under the Lands Clauses Consolidation Act 1869, by a

master.

Held, that the parties had contracted themselves out of the application of that Act, and that the costs might be taxed in Chancery under 6 & 7 Vict. c. 73, s. 38.

THIS was a motion for a rule for mandamus on behalf of the mayor, aldermen, and burgesses of Barnsley, calling upon Master Manley Smith to tax the costs incurred by Col. Adolphus Ulick Wombwell in respect of an arbitration concerning the value of some lands obtained by the corporation from Col. Wombwell under the Lands Clauses Consolidation Acts.

The following agreement sets out the circum. stances of the arbitration until the 15th Feb. 1876, the date thereof:

An agreement made and entered into this 15th Feb. 1876, between Adolphus Ulick Wombwell, of Thorparch Hail, near Tadcaster, in the county of York, Esq., late Lieut.-Col. of the 12th Regiment of Lancers, of the one part, and the mayor, aldermen, and burgesses of the borough of Barnsley, in the county of York, of the other part. Whereas by a notice in writing dated the 27th Oct. 1875, under the hand of William Harrison Peacock, the town clerk of the said borough, for and on behalf of the said mayor, aldermen, and burgesses acting as the Urban sanitary authority within the district of the said borough, the said mayor, aldermen, and burgesses demanded from the said Adolphus Ulick Wombwell a statement in writing of the particulars of his estate and interest in certain lands therein mentioned and thereby required for the purpose of disposing of the sewage of the said borough of Barnsley by way of irrigation upon the surface of and of filtration through the said lands, and also of the claims made or the amount of compensation demanded by the said Adolphus Ulick Wombwell in respect thereof. And whereas by a notice in writing dated the 29th Oct. 1875, under the hand of Charles Newman, of Barnsley aforesaid, gentleman, as agent for and on behalf of the said Adolphus Ulick Wombwell, addressed to the said mayor, aldermen, and burgesses, it was stated that the said Adolphus Ulick Wombwell claimed an estate for life in the said lands, and further that the said Adolphus Ulick Wombwell, on behalf of himself and the other parties entitled and capable of making a conveyance of the fee simple in possession of the lands specified in the said notice, claimed the sum of 30,000 for the purchase of the said lands specified in the said notice (excepting all minerals lying within and under the same) as required for the purpose aforesaid, and for compensation for the damage that might be sustained by the said Adolphus Ulick Wombwell and the said other parties competent to convey as aforesaid by reason of the execution of the works for which the said lands and premises were so required as aforesaid, or of the exercise as regards such lands and premises of the powers vested in the said urban sanitary authority as in the said first recited notice is mentioned. And notice was further given to the said mayor, aldermen, and burgesses that unless they agreed to pay the sum of money thereinbefore claimed it was the desire of the said Adolphus Ulick Wombwell, and he thereby elected that the amount to be paid in respect of the said claims should be settled by arbitration in the manner prescribed in "the Lands Clauses Consolidation Act 1845;" and that the said Adolphus Ulick Wombwell had by writing under his hand bearing even date with the notice now in recital nominated and appointed Samuel Dickinson Martin, of Leeds, in the county of York, to be the arbitrator on behalf of himself and the said other parties in the matters aforesaid, and did thereby request the said mayor, aldermen, and burgesses to nominate and appoint some person to act as arbitrator on their behalf in the said matters.

And whereas, by writing dated the 29th Oct. 1875, under the hand of the said Adolphus Ulick Wombwell, he, the said Adolphus Ulick Wombwell, in pursuance of the provisions of the Lands Clauses Consolidation Act 1845, nominated and appointed the said Samuel Dickinson Martin to be the arbitrator on his behalf of and

Q.B. Div.]

concerning the premises. And whereas by writing dated the 23rd Nov. 1875, under the hand of the said William Harrison Peacock, the town clerk of the said borough of Barnsley, and the clerk to the said urban sanitary authority, and also under the corporate common seal of the said borough, the said mayor, aldermen, and burgesses, acting as such urban sanitary authority as aforesaid, nominated and appointed Edward Lancaster, of Barnsley, aforesaid, land agent, to be the arbitrator on the part of the said mayor, aldermen, and burgesses for the purposes of the said arbitration. And whereas the said Samuel Dickinson Martin and Edward Lancaster did by writing under their hands dated the 6th Jan. 1876, before entering upon their said arbitration, nominate and appoint Thomas Barham Foster, of Manchester, civil engineer, to be their umpire. And whereas the said arbitrators and umpire have not yet made their award in the said matters, and the said mayor, aldermen, and burgesses are desirous of obtaining immediate possession of the said lands and tenements. Now, therefore, it is hereby agreed as follows:

1. The said mayor, aldermen, and burgesses shall be forthwith let into possession of the said lands and premises comprised in the first herein before recited notice, subject to their arranging with the tenants or tenant thereof.

2. The said mayor, aldermen, and burgesses shall, in addition to the amount to be settled by arbitration as the sum to be paid for the said lands and premises, and compensation as aforesaid, pay interest on such sum until the same shall be fully paid at the rate of 51. per centum per annum from the time of taking possession of the same premises or any part thereof.

3. The said mayor, aldermen, and burgesses shall pay to the said Adolphus Ulick Wombwell the price and interest as aforesaid, irrespective of any sum which they the said mayor, aldermen, and burgesses may be liable to pay to the tenants or tenant as compensation for the value of their or his unexpired term or interest in such lands, and for the damage done to them or him in their or his tenancy of the said lands and premises as aforesaid, they, the said tenants, being tenants from year to year.

4. The said mayor, aldermen, and burgesses shall pay all and every the costs and expences of the said Adolphus Ulick Wombwell of and incidental to this agreement and the said reference and arbitration, and to the conveyance of the said lands and premises, including valuers' and surveyors' charges and solicitors' charges as between solicitor and client.

5. The said arbitrators shall have power, and they are hereby authorized, to extend the time for hearing evidence and making their award herein until the 23rd of May next, before the said arbitration shall devolve upon the said umpire, anything in the said Lands Clauses Consolidation Act 1845, to the contrary thereof in anywise notwithstanding. As witness the hand of the said Adolphus Ulick Wombwell, and the said mayor, aldermen, and burgesses of the borough of Barnsley, have hereunto affixed their common seal the day and year first above written.

Sealed with the corporate common seal of the borough of Barnsley,

in the presence of

JOSH BRADLEY.

Clerk to Mr. Peacock,

Solicitor,
Barnsley.

RICHD. CARTER, Mayor,

[ Seal.]

To this agreement were appended three memoranda, dated respectively the 17th April, the 9th May, and the 13th June, 1876, by which the time for the award was extended to the 1st Sept. 1876.

On the 9th Aug. 1876, the umpire duly made his award, reciting the facts mentioned in the said agreement, but not referring in any way to the agreement itself, and also reciting that on the 15th July 1876, it was mutually agreed that certain additional lands should be purchased and taken by the corporation from Col. Wombwell at an amount to be settled by the umpire. He proceeded to award the sum of 19,585l. 38. to be paid under

[Q.B. DIV.

the notice to treat, and the sum of 4481. 148. to be paid under the agreement for purchase of additional lands, amounting in all to 20,0331. 178. to be paid by the corporation to Col. Wombwell.

A bill of the costs incurred by Col. Wombwell was delivered to the Corporation of Barnsley, whose solicitors applied by summons at chambers to have the said bill taxed in accordance with sect. 1 of the Lands Clauses Consolidation Act 1869 (32 & 33 Vict. c. 18). It is enacted by that section that "Where in England, under the Lands Clauses Consolidation Act 1845, or any Act incorporating the same, any question of disputed compensation is determined by arbitration, the costs of and incidental to the arbitration and award shall, if either party so requires, be taxed and settled as between the parties by any one of the taxing masters of the Superior Courts of law, and such fees may be taken in respect of the taxation as may be fixed in pursuance of the enactments relating to the fees to be demanded and taken in the offices of such masters, and all those enactments, including the enactments relating to the taking of fees by means of stamps, shall extend to the fees in respect of the said taxation."

Master Manley Smith, upon the hearing of this summons, was of opinion that he ought to proceed to tax under the Lands Clauses Consolidation Act; that the agreement of the 15th Feb. 1876, was collateral to the arbitration, and though it might affect the scale of allowance, it ought not to prevent taxation. By consent of the parties, however, he adjourned the matter in order that the corporation might move the court for this rule, Col. Wombwell undertaking to show cause against it in the first instance.

Charles, QC. (with him Jeune) accordingly now moved on behalf of the Corporation of Barnsley. -The 4th clause of the agreement of the 15th Feb. 1876, which it is contended on the other side ousts the jurisdiction of a master of this court, merely provides a scale of taxation by which the master may be guided. Bramwell, B. said in Eccles v. Mayor, &c., of Blackburn (30 L. J. 358, Ex., at p. 370), The master cannot tax costs as between party and party on two different scales, unless there is some agreement between the parties to enable him to do so." Here there is nothing to prevent the master from taxing according to the terms of the agreement. The objection to this taxation is founded on the case of Doulton v. Metropolitan Board of Works (L. Rep. 5 Q. B. 533), but there was in that case an express provision that the costs, charges, and expenses should, "in case of difference, be from time to time settled by the arbitrator;" and, accordingly, it was held by Lush, J. that this was not a case within the Lands Clauses Consolidation Act 1845, and, therefore, the provision as to taxation of costs in the Lands Clauses Consolidation Act 1869, did not apply.

A. Wills, Q.C. (with him W. G. Harrison, Q.C. and Bowen), showed cause in the first instance on behalf of Colonel Wombwell.-According to the agreement the 4th clause indemnifies Colonel Wombwell from "all and every the costs and expenses of and incidental to this agreement, and the said reference and arbitration, and to the convey. ance of the said lands and premises, including valuer's and surveyor's charges, and solicitor's charges as between solicitor and client." It would be impossible to tax under the Lands Clauses

Q.B. Div.]

Consolidation Act 1869, the charges in respect of the agreement of the 15th Feb. 1876, or those in respect of the conveyance of the lands and premises. One taxation, however, of the whole costs would be sufficient under sect. 38 of the Attorneys and Solicitors' Act 1843 (6 & 7 Vict. c. 73), by which it is enacted, "That where any person, not the party chargeable with any such bill within the meaning of the provisions hereinbefore contained, shall be liable to pay, or shall have paid such bill either to the attorney or solicitor, his executor, administrator, or assignee, or to the party chargeable with such bill as aforesaid, it shall be lawful for such person, his executor, adminstrator, or assignee, to make such application for a reference for the taxation and settlement of such bill as the party chargeable therewith might himself make, and the same reference and order shall be made thereupon, and the same course pursued in all respects as if such application was made by the party so chargeable with such bill as aforesaid." By the previous sect. 37, it is provided, amongst other things, that " upon the application of the party chargeable by such bill within such month, it shall be lawful, in case the business contained in such bill or any part thereof, shall have been transacted in the High Court of Chancery, or in any other Court of Equity, or in any matter of bankruptcy or lunacy, or in case no part of such business shall have been transacted in any court of law or equity, for the Lord High Chancellor or Master of the Rolls." they are hereby respectively required to refer such bill, and the demand of such attorney or solicitor, executor, or administrator, or assignee, thereupon

"and

With

be taxed and settled by the proper officer of the Court in which such reference shall be made without any money being brought into court." the exception that this bill should be taxed by the proper officer in Chancery instead of by the arbitrator, the case of Doulton v. Metropolitan Board of Works is an authority exactly in point with respect to this case. The agreement there provided that the reference and award should be subject to the Lands Clauses Consolidation Act, 1845, except as modified by the agreement, and the modifications are almost exactly the same as in this agreement of the 15th Feb. 1876. In both are provisions for the costs of the agreements and conveyances, and valuer's and solicitor's charges. The objection of Lush, J., to the motion, which was similar to this, was, "If the Act were held to apply, the costs might have to be taxed by two different persons. I think that sect. 1 of the Lands Clauses Consolidation Act 1869, can only be taken to apply to arbitration pure and simple, begun and carried out under the Lands Clauses Acts. Where there are special agreements concerning matters to which those statutes do not apply, the Act of 1869 is not applicable." The object of the agreement was to save the corporation from having to deposit a sum of money they would otherwise have been liable for, and the consideration for this advantage was the better scale of costs allowed to the landowner by the Chancery taxation.

Charles, Q.C., in reply.-This motion is merely to obtain the costs of the arbitration, if there are any charges for the agreement or conveyance, the master would disallow them. There must be two taxations in any event, for the conveyance is not yet completed. This is an agreement collateral to MAG. CAS.-VOL. XI

[Q.B. DIV.

the arbitration, and contains nothing to deprive the corporation of the benefit of the Act of 1869. [LUSH, J.-The agreement indemnifies Colonel Wombwell, but there is nothing in the Act of 1869, to prevent his solicitor from recovering against him the costs taxed off under that Act.] The solicitor may have the same right if the taxation take place in Chancery, the words "as between solicitor and client," in the 4th clause of the agreement apply only to solicitors' charges, not to the other costs and expenses of Colonel Wombwell.

MELLOR, J.-I confess that I feel considerable difficulty in this matter. If this were the first time the point had been raised I should have much doubted the propriety of depriving a party to such an arbitration of the benefit of this Act of 1869. But upon the authority of the decision of my brother Lush in Doulton v. Metropolitan Board of Works, I am willing to hold that the parties have here agreed to take themselves out of the operation of that Act. The object of the 1st section no doubt was to give such taxations to persons skilled in like matters, and the provision is to apply where any question of disputed compensation, under the Lands Clauses Act 1845, or any Act incorporating the same, is determined by arbitration. Mr. Charles contends that there is nothing in the Act as to the scale upon which the taxation is to be carried out, and that the duty imposed upon a master may be regulated by agreement. I feel the weight of that contention, but on the other side it is reasonably maintained that there is nothing to prevent parties from agreeing to exclude the Act from applying to their arbitration. Here the agreement was that the corporation should pay all and every the costs and expenses of Col. Wombwell" of and incidental to this agreement and the said reference and arbitration, and to the conveyance of the said lands and premises, including valuers' and surveyors' charges and solicitors' charges as between solicitor and client." These words mean, I think, to indemnify Col. Wombwell from all expenses attending the whole proceeding, and in order to do that the parties have agreed to remove themselves from the application of the Act of 1869. But does the clause mean to make the corporation liable for any costs which the solicitors may charge? I think not; it may well be that the costs should be taxed under the Attorneys' and Solicitors' Act referred to by Mr. Wills. A taxing officer in Chancery is a most suitable tribunal for this work, and he would not be limited to the treatment of the costs of the arbitration only. I think, therefore, we should not compel this taxation to be undertaken by a master under the Lands Clauses Consolidation Act 1869, and this rule will be refused.

LUSH, J.-I think also there is no power to compel Col. Wombwell to have these costs taxed under the Act of 1869. It is competent to the parties to an arbitration under the Lands Clauses Acts to contract themselves out of the Act of 1869, and I think the agreement here has that effect. I think it means that Col. Wombwell should be indemnified from all costs with which his solicitor would have a right to charge him. Those costs may be ascertained in the Court of Chancery, not only by Col. Wombwell or his solicitor, but under sect. 38 of the Attorneys' Act, by the Corporation of Barnsley, who have to pay them. There is no difficulty about it, and it

C

Q.B. Div.]

seems to me to be the best course, and that which was intended by the parties.

Rule refused. Solicitors for Col. Wombwell, Singleton and Tattershall, for Newman and Sons, Barnsley. Solicitors for the Corporation, Norton, Rose, Norton and Brewer, for Benjamin Marshall, Barnsley.

Thursday, May 17, 1877.

REG. v. INHABITANTS OF CENTRAL WINGLAND. (a) Extra-parochial place, repair of highway by-20 Vict. c. 9-25 & 26 Vict. c. 61, ss. 17, 32, 35— 27 & 28 Vict. c. 101, 88. 3, 9.

An extra-parochial place which is annexed to a union under 20 Vict. c. 19, is not liable to indictment for non-repair of a highway.

THIS was an indictment of the Inhabitants of Central Wingland for non-repair of a highway. The indictment followed a common form, and the only plea of the defendants was Not Guilty."

At the trial of the indictment before Amphlett, L.J., at the Lincoln Spring Assizes, 1876, the following facts were, by agreement of counsel, placed on the learned judge's notes:

Prior to the passing of the Nene Outfall Act 1827 (7 & 8 Geo. 4, c. lxxxv.), all the lands which now form Central Wingland were un-reclaimed salt marshes and extra parochial. Pursuant to the Nene Outfall Act 1827, these lands were embanked and reclaimed from the sea, and by sect. 176 of that Act were declared to be extra-parochial. By sect. 180 of the same Act it was provided that Thomas Pear, surveyor, should set out so much of the said lands as he should think proper for public roads and highways, and he accordingly made an award, dated 20th Dec. 1836, setting out amongst others the road now in question as a public highway. The Nene Outfall Commissioners, under the said Act, became the owners of the whole of Central Wingland, and on the 20th Aug. 1840, they sold by auction, under conditions of sale, a portion of their said land adjoining the road in question. Under the ninth of the said conditions of sale the purchasers were required to enter into certain covenants to repair the highway according to their frontages. Pursuant to the said ninth condition of sale, Thomas Pear made an award dated 7th Dec. 1840, which included the said road. The purchasers of the said lands entered into the covenants required by the said ninth condition of sale by a deed of covenant, dated 9th Jan. 1841. [Deed put in.] The highway in question was set out or commenced to be set out under the direction of the said Thomas Pear, in the year 1843. Since the passing of 20 Vict. c. 19, Central Wingfield has been added to the Holbeach Union by an order of the Poor Law Board, dated 2nd May 1866, and an overseer and a guardian were appointed from time to time. In May 1875, Joseph Faulkner was appointed surveyor of highways for Central Wingland by the justices of the parts of Holland, in Lincolnshire, under the provisions of the Highway Acts. It was contended by the defendants that this appointment was invalid. Central Wingland is not a highway district, and no highway board has been appointed for any district in which Central Wingland is included. No highway rate has ever been made in Central Wingland.

(a) Reported b J. M. LELY Esq.. Barrister-at-Law.

[Q.B. DIV.

The road in question was at the time of the trial and had been for some time out of repair. On 21st Jan. 1876, the prosecutor took out a summons against Joseph Faulkner, as such overseer as aforesaid in respect of the non-repair of such highway. The said Joseph Faulkner appeared at Spalding, on Feb. 1st 1876, before the justices of the parts of Holland, in answer to the said summons, and admitted the said road to be a public highway, but denied the liability of the inhabitants to repair it. The case was adjourned to the 15th Feb., when the justices ordered the present indictment to be prepared at the then next Lincoln assizes.

The learned judge directed a verdict of guilty, Iwith leave to move to enter a verdict for the defendants.

The following enactments are material: 20 Vict. c. 19, s. 1:

Every place entered separately in the report of the Registrar General on the last census which now is or is reputed to be extra-parochial, and wherein no rate is levied for the relief of the poor, shall for all the purposes of the assessment to the poor rate, the relief of the poor, the county police, or borough rate, the burial of the dead, the removal of nuisances, the registration of births and deaths, be deemed a parish for such purposes, and shall be designated by the name which is assigned to it in such report; and the justices of the peace having jurisdiction over such place or over the greater part thereof shall appoint overseers of the poor therein; and with respect to any other place being or reputed to be extra-parochial, and wherein no rate is levied for the relief of the poor, such justices may appoint overseers of the poor therein, notwithstanding anything contained in 7 & 8 Vict. c. 101. [The Poor Law Amendment Act 1844.]

25 & 26 Vict. c. 61 (The Highway Act 1862) s. 17:

The highway board shall maintain in good repair the highways within their district, and shall, subject to the provisions of the Act as respects the highways in each parish within their district perform the same duties, have the same powers, and be liable to the same legal proceed. ings as the surveyor of such parish would have performed, had, and been liable to if this Act had not passed. It shall be the duty of the district surveyor to submit to the board at their first meeting in every year an estimate of the expenses likely to be incurred during the ensuing year for maintaining and keeping in repair the highways in each parish within the district of the board, and to deliver a copy of such estimate, as approved or modified by the board so far as the same relates to each parish, to the waywarden of such parish.

Sect. 32:

Where, in pursuance of 20 Vict. c. 19, any place is declared to be a parish, or where overseers of the poor are appointed for any place, such place shall, for the purposes of this Act, be deemed to be a parish separately maintaining its own highways; and where in pursuance of the same Act any place is annexed to any adjoining parish, or to any district in which the relief of the poor is administered under a local Act, such place shall, for the purposes of this Act, be deemed to be annexed to such parish or district for the purposes of the maintenance of the highways, as well as for the purposes in the said Act mentioned.

27 & 28 Vict. c. 101 (Highway Act 1864) s. 9:

The justices in petty sessions may appoint overseers, or otherwise deal with any extra-parochial place with a view to constituting it a highway parish or part of a highway parish, in the same manner as the justices may deal with such place for the purpose of constituting it a place or part of a place maintaining its own poor, in pur. suance of the powers for that purpose given by 20 Vict. c. 19.

Sect. 5:

Any parish, township, tithing, hamlet, or other place having 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 the place, or in which the highways are repaired at the expense of any person, body politic or corporate by reason of any court, tenure, limitation or appointment of any charitable gift, or otherwise howsoever than out of a highway rate or other general rate, shall, for the purposes of the Highway Acts, be deemed to be a place separately maintaining it own highways.

A rule was afterwards obtained to set aside the verdict for the Crown and to enter a verdict for the defendants, on the grounds that on the facts admitted at the trial the defendants were entitled to the verdict, that the justices had no power to appoint a surveyor, or to constitute the parish a highway parish, the same not being in a highway district, that the Nene Outfall Act provides that Central Wingland shall at all times be deemed extra-parochial, and is not repealed by the General Highway Acts, and that the provisions of the Highway Act 1835, s. 23, had not been complied with. Against this rule

Merewether, Q.C. and Dugdale, for the prosecution, now showed cause, and relying principally on sect. 32 of the Highway Act of 1862, argued that the defendants were subject to the law of highways generally, so as to be separately indictable, and that inasmuch as the question was not one between one part of the inhabitants and another, but between the inhabitants and the public, the Highway Acts ought not to be construed literally in favour of the defendants.

Graham, for the defendants, supported the rule, and argued that as no highway board had been appointed, the justices had no jurisdiction to appoint a surveyor, and that the words "for the purposes of this Act," in sect. 32 of the Highway Act of 1862 had reference solely to the administrative purposes of the Highway Acts, and imposed no liability to indictment for non-repair. He cited

Reg. v. Midville, 4 Q. B. 240 ; 2 G. & D. 522.

MELLOR, J.-I am of opinion that this rule ought to be made absolute. The case is one of some difficulty and complexity, the question being whether the object of the statute was to change the liability of parishes, or to throw the obligation to repair upon the surveyor. Mr. Merewether assumes, and he is bound to assume, that the defendants are liable to an indictment, but he has failed to make out his case. The soil of Central Wingland was vested by the Nene Outfall Act in commissioners, and declared to be extra-parochial for ever. These commissioners sold portions of the soil on condition that the purchasers would repair in proportion to their frontages. By the operation of 20 Vict. c. 19, Central Wingland became a parish for the purposes of the poor-rate and other specific purposes set forth in the second section of that Act. But highway rates are certainly not included in that section. Mr. Merewether, however, contends that by sect. 32 of the Highway Act 1862, the liability is thrown upon the defendants. [The learned judge read the section and proceeded:] No doubt the scheme of the Act of 1862 was that the difficulties in the way of a perfect highway system which were caused by the interposition of extraparochial places should be obviated, and that the new law should prevail generally throughout England. But I think that this section does not give a power to proceed against this particular parish; the words "for the purposes of this Act

show that

[Q.B. DIV.

for the parish to be liable, it was first necessary that a highway district should be appointed, and this has not been done. Neither do any other of the enactments referred to render the indictment maintainable. The rule, therefore, must be absolute.

FIELD, J.-I am very clearly of the same opinion. This indictment charges that the defendants are bound to repair a certain highway. On such an indictment it is incumbent on the prosecution to prove that the defendants are a parish. That is laid down very clearly by R. v. Ecclesfield (1 B. & Ald. 359), which is the foundation of all the authorities on the subject. The place was never a parish for any purpose till the passing of 20 Vict. c. 19, which was passed to obviate the many difficulties which arose from the chain of communication being broken up by extraparochial places, but though it applied to many public purposes, it did not refer to highways. We then come to the 32nd section of the Act of 1862. [Section read.] Now if this section had stopped at the words "separately maintaining its own highways," Mr. Merewether would no doubt have had a very strong case. But the section goes on to speak of "places annexed to adjoining parishes," and to provide that these places shall, "for the purposes of this Act," be deemed to be annexed to the adjoining parishes "for the purposes of maintaining the highways." Now what are the purposes of the Act? Clearly to provide a machinery for forming "highway districts" and "highway parishes." Following out this interpretation, we find that the inhabitants of Central Wingfield come within the operation of sect. 10, so as to be able to elect a waywarden. But they are not liable to be separately indicted. Rule absolute.

Solicitors for the prosecution, Baxter and Co. Solicitor for the defendants, Mossop, for Mossop, of Long Sutton.

April 25 and June 13, 1877.

WEBB v. KNIGHT.(a)

Adulteration - Dilution Quality of article

Question of fact-38 & 39 Vict. c. 63.

A purchaser asked for a pint bottle of gin at the appellant's licensed premises. The barman inquired at what price, saying there were two kinds, one at 28., the other at 1s. 4d. a pint. The purchaser chose the latter, and was supplied with a liquid which proved on analysis to be 43.15 per cent. under proof. It was found that the custom of the trade in the district was to buy gin from the distillers about 20 under proof, and to sell at prices from 28. to 18. a pint. The appellant was convicted under sect. 6 of the Sale of Food and Drugs Act 1875, for selling to the prejudice of the purchaser an article of food which was not of the nature, substance, and quality of the article demanded.

Hell, upon a case stated, that in the absence of any custom in the neighbourhood as to the amount of dilution corresponding to a particular price, the breach of the statute was a question of fact for the magistrates; and that the court could not interfere with any common sense view of the matter taken by them.

(a) Reported by M. W. MCKELLAR, Esq., Barrister-at-Law.