rent than they paid themselves. The lease to Mr. Newton contained covenants that he would use and cultivate the said premises as a sewage farm according to the most approved method of cultivation in the neighborhood and the rules of good husbandry and the stipulations thereinafter contained, and would use all the sewage, to be supplied as thereinafter mentioned, upon the said premises, and would not turn into, or allow to be turned into, the brooks or watercourses on the said premises any sewage, except in case of overflow caused by storms, but would use the same entirely for fertilizing the land, and that he would indemnify the board from all actions, claims, and demands in respect of any nuisance caused by any improper use of sewage, or owing to sewage matter being allowed to run into the brooks or watercourses on the said premises, except in the case of overflow, as aforesaid. The board, on their part, covenanted to deliver on the said premises all the sewage made in the district free of *expense to the said J. Newton, or such quantity [322 thereof as the present 21-inch pipes would deliver.

The returning officer took the view that Mr. Newton was disqualified for membership of the local board by reason of the provisions of the lease, under the 64th clause of the second schedule to the Public Health Act, 1875 (38 & 39 Vict. c. 55).

A rule nisi had been obtained for a mandamus as above, on the ground, first, that it was not part of the returning officer's duty to determine as to the disqualification of candidates under the 64th clause, but merely to return as elected those who, being qualified under the 3d, 4th, and 5th clauses of the second schedule, had the greatest number of votes. Secondly, that the lease was within the exceptions mentioned in the 64th clause of the second schedule to the Public Health Act.

Lumley Smith, Q.C., and C. A. Russell, showed cause: The 1st to the 5th clauses of schedule 2 of the Public Health Act relate to the qualification of members for election. The 64th clause relates to disqualifications.

[FIELD, J.: The 64th clause relates to disqualification of members, and provides that in certain events the member shall cease to be a member. The provisions as to the qualifications for becoming a member are contained in a different set of clauses, viz., clauses 1 to 5, of the second schedule. Possibly a person, on being elected, might choose to throw up any contract that would disqualify him from holding office.]

He could not do so without the consent of the board.

Whether it was, strictly speaking, within the functions of the returning officer to deal with this question or not, the court would not grant the mandamus if it could see that it would be idle to do so, because the candidate could not hold the office if returned: In re Bristol and North Somerset Ry. Co. ('); Reg. v. Sadlers' Company (). It is contended that a person who is disqualified cannot be qualified to be elected, and the 52d clause expressly provides that the candidates to the number to be elected, who, being duly qualified, have obtained the greatest number of votes, shall be certified by the returning officer to be elected.

Sales

323] *This lease is not within the exceptions mentioned. in the 64th clause, the words of the exception are, "interested in the sale or lease of any lands or in any loan of money to the local board." It is submitted that the words "to the local board," apply to the whole sentence. and leases of land by the local board are, therefore, not within the exception. If a lease of lands by the board would be within the exception, in this case there is more than a lease of lands-there is a covenant quite distinct and severable from the lease for the supply of sewage. This is within the mischief intended to be guarded against.

R. S. Wright supported the rule: It is contended that the clauses with regard to qualification and disqualification are quite distinct. The latter only prevent a person from holding office when disqualified, and not from being elected. The candidate may elect to throw up the disqualifying contract.

Secondly, the words "to the local board," in clause 64, only refer to the immediately preceding words, viz., "any loan of money."

By ss. 27 and 29, express provisions are made for leases of land by or to the board for sewage purposes, and there is no reason why there should be a distinction in this respect between leases by and leases to the board. This is substantially a lease within the exception, the contract for the supply of sewage being merely ancillary to the lease for agricultural purposes. It is clear, having regard to the provisions of the 29th section, that this is so.

LUSH, J.: I am of opinion that, if this case were within the enacting portion of the 64th clause, we ought not, in the exercise of our discretion, to grant the writ of mandamus. It would be absurd to make the returning officer certify the return of a person who could not act as a member of the board. But I have come to the conclusion that the case is (1) 3 Q. B. D., 10; 28 Eng. R., 2. (2) 3 E. & E., 42, 84.

not within the enacting part of the 64th clause, and is within the proviso. We must go back, I think, to the 27th and 29th sections of the act to ascertain the meaning of the proviso. The 27th section enacts that, "for the purpose of receiving, storing, disinfecting, distributing, or otherwise disposing of sewage, any local authority may (1.) contract for the use of, purchase, or take on lease, any land, &c., and (2.) contract to supply, for any period not exceeding twenty-five years, any person with sewage." The 29th section enacts [324 that any local authority may deal with any lands held by them for the before-mentioned purposes, either by leasing the same for a period not exceeding twenty-one years for agricultural purposes, or by contracting with some person to take the whole or a part of the produce of such land, or by farming such land and disposing of the produce thereof, subject to this restriction, that in dealing with the land provision shall be made for effectually disposing of all the sewage brought to such land, without creating a nuisance. These provisions, I think, at once suggest the meaning of the proviso to the 64th clause. The words are, "provided that no member shall vacate his office by reason of his being interested in the sale or lease of any lands or in any loan of money to the local board." I think the first branch of the exception ends with the word "lands," and I think the words are intended to cover a lease of a farm for agricultural and sewage purposes, whether made by or to the local board. This lease seems to me to be precisely within the provisions of s. 29 of the act. It is a lease of land for agricultural purposes, and as such appears to me to be within the terms of the proviso to the 64th clause of the 2d schedule. For these reasons, I am of opinion the rule should be made absolute.

FIELD, J.: I have come to the same conclusion. I think it would be idle to grant the mandamus if the candidate were disqualified, but I think he is not disqualified. The disqualification was alleged to rest on the 64th clause of the 2d schedule. Assuming that this lease would, but for the proviso, come within the words of the clause, I think it was correctly argued that it came within the proviso. I do not read the words "to the local board" as intended to apply to the whole of what goes before. The words "sale or lease of land" can, of course, only apply to sales and leases with which the local authority are concerned, but, subject to that restriction necessarily suggested by the subjectmatter, the words are general, and would include sales and leases by the local authority. It is said that, even so, this 29 ENG. REP.

42

is not a lease within the exception. Why not? The act provides certain means for the exercise by the board of one of their most important duties, viz., the disposal of their 325] sewage. They may dispose of it by taking a lease of land for the purpose, and carrying on the business of sewage farmers on such land. If they do not find this profitable they may lease the land to some one else for agricultural purposes. They are bound, however, to get rid of all the sewage brought on the land so as not to cause a nuisance. This they do in this case by the stipulation that the lessee shall use the sewage. Why is such a lease not within the proviso? It appears to me that it is. A lease by which a landlord agrees to carry sewage to the premises by pipes, or enters into any other covenant of a similar nature with regard to the demised premises, is none the less a lease because of such a stipulation. Many agricultural leases contain some such covenants. For these reasons I agree that

the rule should be made absolute.

Rule absolute.

Solicitor for applicant: Edwin Andrew.
Solicitors for returning officer: Nicholls, Hinde & Co.

See 28 Eng. Rep., 785 note; ante, p. 61. On a trial before a county court judge the defendant, knowing that he was related to the judge, did not disclose the fact of this relationship but took the chances of the trial. The judge was not aware of the relationship. The verdict having gone against the defendant, he obtained a stay of judgment and made application for a new trial. At the hearing the defendant produced an affidavit, in which he deposed to the relationship, and asked for a new trial on that ground. Held, that defendant, under these circumstances, was not entitled to a new trial, but that the judge ought to have received the affidavit: Ex parte Ferguson, 3 Pugsley & Burbidge, 117.

That the judge of the circuit who granted a rule nisi, on a motion for a

new trial, is related to one of the parties within the fourth degree, is not good objection to the hearing of the motion by the non-resident judge who tried the case, and to whom the motion was submitted by consent of parties.

Two of the grounds, among others, being that the verdict was contrary to law and evidence, and the resident judge having granted a rule nisi, the motion was submitted by consent to the non-resident judge who tried the case. In answer to the rule, respondent showed for cause, that neither the grounds of the motion nor the brief of the evidence had been approved. The judge hearing the motion corrected and approved them and overruled the objection. Held, that there was no error in this proceeding: Thomas v. Jones, 64 Geo., 139.

The Queen v. Truelove.

1880

[5 Queen's Bench Division, 325.]
Feb. 24, 1880.

NISSLER and Another v. THE MAYOR, ALDERMEN AND BURGESSES OF THE CORPORATION OF HULL.

Contagious Diseases (Animals) Act (32 & 33 Vict. c. 70), ss. 65, 66, 67, 68, 69-Foreign Animals slaughtered at Sea-Right to Compensation-Local Authority-Jurisdiction.

Under the Contagious Diseases (Animals) Act, 32 & 33 Vict. c. 70, no compensation is payable by local authorities in respect of foreign animals slaughtered after their arrival, but before being landed at a British port; for compensation is only payable where animals have been slaughtered in pursuance of the act, and the act does not authorize local authorities to order such animals to be slaughtered.

[5 Queen's Bench Division, 336.]

Feb. 21, 1880.

*THE QUEEN, on the prosecution of Sir J. T. Ingham, [336 V. TRUELOVE.

Criminal Law Trade in Obscene Books-Death of Complainant-Abatement of Proceedings-20 & 21 Vict. c. 83, ss. 1, 2, 3, 4.

Complaint having been duly made under 20 & 21 Vict. c. 83, that obscene books were kept by the defendant in his shop for sale, a warrant for the seizure of such books was issued, and after they had been seized the defendant was summoned to show cause why they should not be destroyed. Upon the hearing of the summons an order was made for the destruction of the books. After the issuing of the summons, but before the hearing, the complainant died, and no application to substitute another complainant was made:

Held, that the proceedings against the defendant did not lapse upon the death of the complainant, and that the order was valid.

UPON appeal to the Middlesex Sessions against an order by a metropolitan police magistrate under 20 & 21 Vict. c. 83, the order was confirmed, subject to a case, of which the the following is the material part.

On the 15th of May, 1877, one of the magistrates of the police court at Bow Street, upon the complaint of John Green, granted a special warrant under 20 & 21 Vict. c. 83, s. 1 ('),

(1) By 20 & 21 Vict. c. 83, s. 1: "It shall be lawful for any metropolitan police magistrate, or other stipendiary magistrate, upon complaint made before him upon oath that the complainant has reason to believe, and does believe, that any obscene books, papers, &c., are kept in any house, shop, &c., within the limits of the jurisdiction of any such magistrate for the purpose of sale or distribution, &c., and upon such magistrate

or justices being also satisfied that any of such articles so kept for any of the purposes aforesaid are of such a character and description that the publication of them would be a misdemeanor, to give authority by special warrant to any constable or police officer into such house, shop, &c., to enter, and to search for and seize all such books, papers, &c., and to carry the articles seized before the magistrate issuing the said warrant-and