1867 ANTHONY v. THE BRECON particular (by s. 65) they were empowered to erect slaughter houses with the written consent of the corporation, given under the hand of the mayor or the town clerk. The company obtained the consent required by s. 65 of the second private act, erected a slaughter house, and demised the tolls to the plaintiff; but the corporation, acting as the local board, refused to license the use of the slaughter house, and the lessee could therefore levy no tolls. In an action brought by the lessee against the company for a breach of their agreement to let the tolls: Held, that the consent provided for by s. 65 of the private act neither constituted nor superseded the necessity of the licence of the corporation as the local board; that, in the absence of any evidence that the consent actually obtained was intended to operate as a licence under the Towns Improvement Clauses Act, 1847, it amounted only to a consent by the corporation under the private act; and that therefore the plaintiff was entitled to recover. DECLARATION, stating that the defendants agreed to let to the plaintiff certain tolls described in the particulars of letting (which were set out), as "the tolls, rents, and tollage payable by virtue of the Brecon Markets Act, 1862," and including the tolls of "the new slaughter house," for one year from 1st of January, 1865; setting out also the conditions of letting, which provided, amongst other things, that the lessee should "comply with and fulfil the bye-laws and regulations of the board of health." Breaches, that the defendants would not let to the plaintiff the tolls of the slaughter house, nor had they at any time during the term any right or title so to let them, and that by reason of their want of title, the plaintiff never had or could have, at any time during the term, the receipt and enjoyment of the tolls &c. The defendants by their pleas denied the alleged breaches, and on these pleas issue was joined. The cause was tried before Pigott, B., at the Brecon summer assizes, 1866. It appeared that the company had let by auction to the plaintiff the tolls of a slaughter house in Brecon, erected by them under the following special acts:-By 1 Vict. c. xii. certain powers to make slaughter houses, &c., and for that purpose to borrow money, were given to the corporation of Brecon. By 25 & 26 Vict. c. clxxxvi. (the Brecon Markets Act, 1862), which recited that various persons had subscribed money had subscribed money for the above objects, and were mortgagees of the corporation's property, the subscribers were (s. 6) incorporated by the name of the Brecon Markets Company, and (s. 21) the property of the corporation was, with certain speci fied exceptions of public buildings, &c., vested in them. By s. 65 the company were empowered, with the consent of the corporation, testified by writing under the hand of the mayor or town clerk, to provide and maintain slaughter houses upon such sites as they should think expedient; by s. 76 they were empowered to take tolls from every person slaughtering cattle there; and by s. 82 to demise the tolls. Under this act the defendants erected a slaughter house, the tolls of which they let to the plaintiff. The slaughter house, however, being built in a thickly inhabited part of the town, a licence for its use was refused by the local board, and the plaintiff was therefore unable to obtain any benefit from his demise. In answer to this objection, the defendants proved that before erecting the slaughter house, they had obtained the written consent of the corporation under the hand of the town clerk, in conformity with s. 65 of the Brecon Markets Act, 1862; and they gave secondary evidence of this consent, the original document having been lost. They contended first, that the corporation of Brecon being the local board for Brecon, the consent so given ́was in fact a licence from the board of health; and secondly, that the special act, being later than the act requiring the licence of the board of health, repealed it to this extent, and substituted the consent under s. 65 for the ordinary licence; but the plaintiff maintained that this consent was only required from the corporation as the mortgagors of the land on which it was expected the slaughter house would be erected; but that it had no relation to sanitary or public purposes, and did not, therefore, supersede provisions directed to secure the public health and convenience; and he further contended that the consent was not given by the corporation acting as a local board. The arguments of the plaintiff and the defendants respectively depended on the following acts: By 13 & 14 Vict. c. 32, confirming a provisional order of the General Board of Health, the Public Health Act, 1848, was applied to Brecon. By the Public Health Act, 1848 (11 & 12 Vict. c. 63), s. 12, it is provided, that when the act is adopted in any district exclusively consisting of the whole or part of one corporate borough, the mayor, aldermen, and burgesses of such borough (who by the Muni 1867 cipal Corporation Act (5 & 6 Wm. 4. c. 76) s. 6, are the corporation and are to act through the council of the borough), shall be by the THE BRECON Council of the borough, within such district, the local board of ANTHONY บ. MARKETS COMPANY. health under the act, and such council shall exercise and execute the powers, authorities, and duties of such local board, according to the laws for the time being in force with respect to municipal corporations in England and Wales. By the adoption of the act, therefore, the corporation of Brecon became the local board of health. By s. 45 of the Local Government Act, 1858 (21 & 22 Vict. c. 98), which, by s. 5, takes effect in all places where the Public Health Act, 1848, has been adopted, the provisions of the Towns Improvement Clauses Act, 1847, as to (amongst other things) slaughter houses, are incorporated; by s. 6 a local board is substituted for the local board of health under the previous act, but is (s. 24) in corporate towns similarly constituted; and it is provided (s. 7) that, in the construction of the incorporated acts, the local board shall be deemed to be the "commissioners" or "undertakers." The Towns Improvement Clauses Act, 1847 (10 & 11 Vict. c. 34), provides (s. 125) that the commissioners may license slaughter houses; (s. 126) that, after the passing of the special act, no new slaughter houses shall be used without the licence of the commissioners; (s. 127) that existing slaughter houses shall be registered; (s. 128) that the commissioners may make bye-laws for the regulation of slaughter houses; and (s. 129) that the justices before whom any one is convicted of an offence against the act or the byelaws, may, in addition to inflicting the penalty provided by the act, suspend the licence of the person convicted for not more than two months, and may, on any subsequent conviction, revoke the licence, after which the commissioners may absolutely refuse a licence to such person. (1) (1) The Fairs and Markets Clauses Act (10 Vict. c. 14) is also incorporated by 25 & 26 Vict. c. clxxxvi. s. 4; the former (s. 17) enables the "undertakers" to provide slaughter houses, and to give notice thereof; provides (s. 19) that, after the notice, no one shall slaughter in any but the slaughter house so pro vided, or one previously in use; and enacts (s. 18) that nothing in that act or in the special act, or in any act incorporated therewith, shall protect the undertakers from an indictment for nuisance, or from any other legal proceeding in respect of any such slaughter house as aforesaid. The jury assessed the damages contingently at 177., but the learned judge being of opinion that the written consent rendered any 1867 ANTHONY v. MARKETS further licence unnecessary, directed the verdict to be entered THE BRECON for the defendants, reserving leave to the plaintiff to move to enter a verdict for him for the amount of damages so assessed. A rule having been obtained accordingly, Jan. 18. Mellish, Q.C., Bowen, and Hughes, shewed cause. They maintained the arguments urged by the defendants at the trial, and cited Pedder v. Mayor of Preston. (1) Giffard, Q.C., and Rees, supported the rule. They contended that the only purpose of the Brecon Markets Act, 1862, was to establish a trading corporation, and that s. 65 must be read by the light of the preamble to the act. Cur. adv. vult. Jan. 24. The judgment of the Court (Kelly, C.B., Channell, and Pigott, BB.) was delivered by KELLY, C.B. The question in this case is, whether the plaintiff, who holds certain premises used as a slaughter house under the Brecon Markets Company, the defendants, with a warranty of title, can use these premises as a slaughter house, without the licence of the local board of health, under the Towns Improvement Clauses Act, 1847. If a licence be necessary, the defendants have failed to make a good title to the premises, and the plaintiff is entitled to a verdict. It is enacted by the Towns Improvement Clauses Act, 1847 (10 & 11 Vict. c. 34), s. 126, that no place shall be used or occupied as a slaughter house in any town within which, as in Brecon, the act is adopted, unless and until a licence for the erection thereof, and for the use and occupation thereof as a slaughter house, has been obtained from the board of health; and certain penalties are imposed for the breach of this provision of the act. No licence has been obtained in this case; but it is contended for the defendants that, inasmuch as under s. 65 of the Brecon Markets Act, the company may, with the consent of the corporation of Brecon, erect a slaughter house, and under s. 82 (1) 12 C. B. (N.S.) 535; 31 L. J. (C.P.) 291. 1867 ANTHONY v. may demise and let it under certain terms and conditions, and as such consent has been obtained from the corporation, and the corTHE BRECON Poration by the town council constitute the board of health at MARKETS Brecon, either the consent, being given by the corporation, amounts to a licence by the board of health, or it confers an absolute right to erect and use a slaughter house, supersedes the provisions of the Towns Improvement Clauses Act, and renders a licence un COMPANY. necessary. Upon considering, however, the purview and general nature of this local act, it appears that it has been passed in order to enable a body of gentlemen interested in the town of Brecon, to form themselves into a company, to discharge the debts of the corporation, to possess themselves of the markets and the property of the corporation, which had been mortgaged to secure the debts, and to erect markets and slaughter houses, and to do other acts for the general benefit of the town, the duty to do which had formerly devolved upon the corporation. But this act has no relation whatever to sanitary measures, or to any of the purposes connected with the health or improvement of towns, which were the principal objects of the Towns Improvement Clauses Act. We see no reason, therefore, why the consent of the corporation to the erection of a slaughter house should dispense with the licence of the board of health under the Towns Improvement Clauses Act. But some difficulty certainly arises from the corporation and board of health being in effect the same body of persons; and if the consent given had been in such a form as to enable the Court to see that it was the intention of the corporation at once to grant the consent required by the local act, and the licence required by the Towns Improvement Clauses Act, we might have held that the instrument conferred a sufficient authority. But the consent itself appears to have been lost; and the secondary evidence that it was a very formal document, and that it expressly referred to the 65th section of the local act-rather leads us to the conclusion that it was the intention to grant the consent only, and that the corporation did not contemplate any act whatever in their capacity of the board of health, and did not really and in fact intend to grant the licence. The consent was given alio intuitu, and had relation only to the position in which the corporation stood in |