Q. B.] REG. v. THE INHABITANTS OF SELBORNE.-SHACKELL v. West. broker leaves it in a room on premises unguarded at night, except by the ordinary means of bolts and locks. Can any one doubt that this is an act of default and neglect on the part of the pawnbroker of the property entrusted to his care? The rest of the Court concurring, Conviction affirmed. REG. V. THE INHABITANTS OF Selborne. A minor ent red into the metropolitan police force as a constable, and remained till his marriage, at which perid he was still a minor: [Q. B. The plaintiff was a frame-work knitter, working in the factory of the defendant, and he was paid by the piece at the rate of 7d. a dozen. But from this payment there were certain stoppages deducted, under the several heads of frame-rent, machine-rent, standing, winding, steam, gas, firing and waiting-room. Hayes, Serjt. now moved accordingly, and contended that these stoppages were illegal, and amounted in fact to a payment of wages other than in the coin of the realm. [COCKBURN, C.J.-Is not this a mode of measuring the wages? Is it not a deduction from wages which the master has a right to make in consideration of the accommodation he affords his work Held, that he did not become emancipated from parental | men ? The 5th section gives the clue to the whole control by entering into the police force. Case granted by the Middlesex court of quarter sessions on confirming an order of removal of a pauper by justices. The simple point was, whether a minor, by entering into the metropolitan police force as a constable, where he remained until his marriage, at which period he was still a minor, became emancipated from parental control. Smart.-The son became emancipated by entering the police force. That is a position inconsistent with parental control, as thereby the son entered into the service of the state. Cases referred to:-R. v. Rotherfield, 1 B. & C. 345; R. v. Lytchet Ma'raverse, 7 B. & C. 226. statute.] That section is only an amplification of the others. [COCKBURN, C.J.-You can't say to the workmen, “You shall take such and such home in lieu of wages" but can't you say, "Instead of working at home, you shall work here in the factory at less wages?" The case of Chowner v. Cummings, 8 Q. B. 311, shows that such deductions are not within the Act.] These deductions are in the nature of wages. COCKBURN, C.J. It seems to me that this case is clearly within the decision of Chowner v. Cummings, and that this is merely a mode of ascertaining the amount of wages the artificer is to receive. WIGHTMAN, J.-Whatever doubt I may have entertained if this case had now come before us for the first time, I think myself bound by the decision in Chowner HILL, J. concurred. Rule refused. Metcalfe, contra, referred to R. v. Scammonden, v. Cummings. 8 Q. B. 349. By the COURT.-The distinction is obvious between a soldier and a police constable. By becoming a police constable a minor is not emancipated. Indeed, by giving a month's notice, he may quit the police force, and the case expressly finds that the son had contracted no engagement which excluded him from returning to his home. From R. v. Woburn, 8 T. R. 479, where it was held that service in the militia did not emancipate a son, R. v. Higgate, 2 B. & Al. 582, where apprenticeship to a certificated man, the son not returning to his father's house till after he was twentyone, was held not to emancipate the son, and other cases down to R. v. Scammond n, the authorities are clear to show that the minor in this case was not emanci pated. Friday, Nov. 4. ARCHER. JAMES. The Truck Act-1 & 2 Will. 4, c. 37-Deduction from wages. Deductions from wages are not within the operation of the Truck Act. Where, therefore, certain deductions or stoppages in respect of frame-rent, machinerent, standing, winding, steam, gas, firing, and waiting-room, were made from the earnings of the plaintiff, who was a frame-work knitter, working in the factory of the defendant: Held, that such deductions or stoppages were not illegal within the operation of the above statute. This was an action tried at Nottingham, when the plaintiff was nonsuited, with leave to move to enter a verdict in respect of certain items. The question turned upon the proper construction of the Truck Act (1 & 2 Will. 4, c. 37), the 3rd section of which enacts, "That the entire amount of the wages earned by or payable to any artificer in any of the trades hereinafter enumerated, in respect of any labour by him done in any such trade, shall be actually paid to such artificer in the current coin of this realm, and not otherwise; and every payment made to such artificer by his employer, of or in respect of any such wages, by the delivering to him of goods, or otherwise than in the current coin aforesaid, except as hereinafter mentioned, shall be and is hereby declared illegal, null and void." Saturday, Nov. 12. SHACKELL v. WEST. Pawnbrokers' Act-39 & 40 Gen. 3, c. 99—ss. 14, 24. A. summoned a pawnbroker under the 14th section of the above Act, for neglecting or refusing, without reasonable cause, to deliver back a watch pawned for a sum under 101., which had been stolen in consequence of the pawnbroker's negligence. The justices made an order that, the goods being lost by the negligence of the pawnbroker, and he having failed to show reasonable cause why he should not return the watch, he should forthwith restore it, or pay the value and costs: Held, that the order was bad, as being made under the 14th section, although a valid order might have been made under the 24th section; and as any amendment would prejudice the pawnbroker, by depriving him of his appeal under the 35th section of the Pawnbrokers' Act, the court refused to amend, and remitted the case back to the justices. This was a case stated by the magistrates of Westonsuper-Mare for the opinion of the court under 20 & 21 Vict. c. 43. The appellant is a pawnbroker at Bristol, but with another establishment at Weston-super-Mare. In March of last year a silver hunting-watch had been deposited with him by the respondent, on an advance of 27. On the night of Saturday the 1st May and Sunday the 2nd, the appellant slept at his residence at Weston-super-Mare, and in the mean while his premises at Bristol were left unguarded, no one sleeping there on either night. In that interval the house was broken into by burglars, and, amongst other property- which, it was alleged, had been locked up in an iron safe-the respondent's watch was taken away. West shortly afterwards tendered to the appellant the sum of 27. 18. 4d., being the sum advanced with interest, and demanded the restoration of his watch, when the appellant expressed his inability to restore it by reason of the robbery; and thereupon he was summoned by the respondent before the magistrates at Weston-super-Mare, under the 14th section of the 39 & 40 Geo. 3, c. 99, when the magistrates Q. B.] SHACKELL v. WEST.-REG. v. JOHN BROWN. [Q. B. having heard the case, adjudged that, by reason of the | 4 Jur. N. S. 949, and he said, "We are bound to read defendant having absented himself from his premises "with" instead of "by; the cause of loss there was during two nights and leaving them totally unguarded, by fire. [COCKBURN, C.J.-The Act is badly drawn, he must be considered guilty of negligence as a bailee, and is certainly obscure.] and that, therefore, having failed to show reasonable cause why he did not return the watch, he must be ordered forthwith to restore it, or otherwise to pay 54. 28. 8d., less the 27. 18. 4., the sum advanced, with interest, together with 37. 78. for costs-the magistrates at the same time intimating that the fact of a robbery having occurred at all was not fully established. Kinglake Serjt. contra.-In the case of an information under the 14th section of the Act, if the pawnbroker gave evidence that the goods had been lost through a burglary, the magistrates must be held to have power to decide the question of negligence. In such cases the magistrates were of opinion it was the intention of the Legislature to supersede the common law rights of the parties and to give a more speedy remedy. The question is, whether, on an information under the 14th section, the magistrates had jurisdiction, assuming that on the evidence produced there was enough to show that a robbery had been committed. [BLACKBURN, J.-Then if they have erroneously made an order under the 14th section, instead of the 24th section, cannot we amend it?] On the part of the respondent it is not admitted that any amendment is necessary. Coleridge for the appellant.-After the decision of this court on Wednesday last in the case of Healing v. Cathrell, 1 L. T. Rep. N. S. 7, the question of negligence in the pawnbroker was abandoned. This appeal, therefore, now rests on the ground that the magistrates, in ordering the appellant to deliver the watch, or in failing to do so to pay over the full value with costs, had exceeded their jurisdiction. The information was laid under the 14th section of the Act, and the order of the magistrates purported to be made under that section. The 14th section enacts that if any pawnbroker, without showing reasonable cause for so doing, neglect or refuse to deliver back the goods or chattels pawned for any sum or sums of money not exceeding 107, to the person or persons who borrowed the money thereon, any justice or justices of the peace, on the application of the borrower, is required to cause such person or persons who took such pawn to come before such justice or justices, and if tender of the principal money due and all profit thereon shall be COCKBURN, C.J.-The order as made cannot stand. proved, such justice or justices shall thereupon by order It is made under the 14th section of the Pawnbrokers direct the goods or chattels so pawned forthwith to be Act, and it professes to be applicable to a case in which delivered up to the pawner or pawners thereof, his, the pawnbroker was no longer able to deliver up the her, or their executors, administrators, or assigns, and thing in specie in consequence of his own negligence, on neglect or refusal, then any such justice or justices and to such a case I think that section does not apply; shall commit the party or parties so refusing until he, but I think the justices might have made a valid order she, or they shall deliver up the goods or chat- under the 24th section. It is not necessary to say tels so pawned, or make such satisfaction or whether it was satisfactorily established that the goods compensation as such justice or justices shall were securely locked up, but it is clear that the preadjudge reasonable for the value thereof; but mises were left unguarded, and under these circumthat section says nothing about the pawnbroker, stances I think the justices were justified in coming to in default of delivering the article, being ordered to the conclusion that the pawnbroker was guilty of negmake compensation. The 14th section is simply ap-ligence, and that they could have given relief to the plicable and directed against such pawnbrokers as withhold from the person pawning; it only applies to cases of continuous nondelivery when an article is in the possession of the pawnbroker, and he withholds it, having the power to deliver it. On the other hand, the 24th section deals with negligent bailees, or with those through whose negligence or want of sufficient care, property not exceeding in value 101. is lost or stolen, and in such case the magistrates are empowered to order compensation not exceeding 107., and then, if there is a failure in complying with the order of the magistrate, the remedy is against the goods of the defendant. It was plain, therefore, the magistrates had proceeded upon the wrong section, and that the order, if made at all, could only have been made under the 24th section. The proceeding was misconceived: (Ex parte Cording, 4 B. & Ad. 198; Reg. v. Ryan, 4 Ad. & Ell. 39. [COCKBURN, C.J. But have we not a power to amend the determination of the magistrates, or to remit the case for a hearing?] Not in such a case as this. for the whole proceeding of the magistrates was misconceived. The 24th section of the Pawnbrokers Act says, "that if in the course of the proceedings before the magistrate it should appear that the chattel had been lost through neglect," &c. Now here, in the course of the proceedings it did become evident that the goods had been lost through neglect - nevertheless the magistrates persisted and made their order. There is an error in the 24th section of the Act; it refers to the neglect of the person "by" whom the goods were pawned; this should evidently be "with." The mistake was noticed by Campbell, C.J. in Syred v. Carruthers, Coleridge in reply.-The 14th section alone warrants this order, and to make an amendment would be putting the court in the position of justices, and making, under another section, such an order as they should have made. [WIGHTMAN, J.-The difficulty of making an amendment is this: if the justices had decided under the 24th section, the pawnbroker might have appealed to the quarter sessions under the 35th section, and he has now lost that power.] complainant under the 24th section; but having proceeded under the 14th section, and there being a substantial difference between the two, I think the order cannot stand. Then there is the question, ought we to amend if the appellant would in no way be prejudiced? I think we ought; but in this case there is the difficulty which I think cannot be got over, that the appellant would have been entitled to his appeal under the 35th section, and that in such appeal he might have adduced evidence to clear himself of the alleged negligence, and of that he ought not to be deprived. WIGHTMAN, J.-The 14th section applies to refusal to restore, and not to a case like this, and therefore the present order cannot be supported, although a valid order might have been made under the 24th section of the Act. And as we cannot amend without prejudice to the appellant, I think the case ought to go back for reconsideration. BLACKBURN, J. concurred. Bastardy Case remitted for rehearing—no costs. Monday, Nov. 14. REG. v. JOHN BROWN. order-Service of summons-Jurisdiction -7 & 8 Vict. c. 101, s. 3. An affiliation summons was served by learing it at the place of abode of the patatire father of the bastard child, from which he was absent temporarily, without any notice of the proceeding, and his address was not known. The justices declined to adjourn the hearing and made an order: Q. B.] REG. v. JOHN BROWN.-RIDER v. WOOD AND OTHERS. Held that this court could not interfere, the justices having jurisdiction. Price moved to quash a bastardy order on the ground of irregularity. absence. The order was made under the 7 & 8 Vict. c. 101, s. 3, and was regular on the face of it. The following facts were relied on :-It appeared that a summons was taken out against the defendant, a farmer's son, as the putative father of the child, and left for him at his father's residence, which was his home, during his It was stated in the affidavits that he left home on the 3rd July (that was before the summons was taken out), without any notice or intimation that such a proceeding was about being taken; that he was in the habit every year of taking a month's trip, and that on the occasion in question he left home for that purpose, not leaving any address, as he was going on a tour and did not know where he might be during the time. The summons was for the defendant to appear at the petty sessions on the 18th July, and on that day the defendant's mother attended at the sessions, and stated these facts to the justices, and that her son for that reason had not had notice of the summons, and asked for an adjournment. The justices, however, refused to adjourn the hearing and made the order in question. There was an affidavit of the defendant denying that he was the father of the child. Price contended that the moment the justices were told by the mother that the son was absent, under the above circumstances, they ought not to have gone on with the hearing and made the order. It is true the 7 & 8 Vict. c. 101, s. 3, "on proof that the summons was duly served on such person, or left at his last place of abode, six days before the petty sessions," gives the justices jurisdiction to act; but, nevertheless, the circumstances here are such that it amounts to a case of an ex parte proceeding: (R. v. Davis, 22 L.J. 143, M.C.; R. v. Totnes, 7 Q. B. 690.) In R. v. Evans, 19 L.J. 181, M.C., there was no affidavit on the part of the defendant denying that he was the father of the child. COCKBURN, C.J.-The order is regular on the face of it, and the requirements of the statute have been complied with. The justices might have exercised a discretion which we may regret that they did not exercise. But there is no irregularity, and the court cannot interfere. HILL, J.—Everything appears to be regular according to the statute. The summons was left at the defendant's last place of abode, but he was temporarily absent, and the justices may have treated this excuse of the mother as an idle one. The principle on which the court proceeds in quashing orders on certiorari is, that there must be some defect of jurisdiction in the tribunal making the order. Here there is none. BLACKBURN, J.-If the justices thought it right not to adjourn the hearing, can we say that they acted without jurisdiction? Rule refused. Wednesday, Nov. 16. RIDER (appellant) v. WOOD AND OTHERS (respondents). Master and servant Leaving employment without lawful excuse-Guilty intent. Under the 4 Geo. 4, c. 34, s. 3 (Masters' and Work men's Act), a workman who leaves his master's employment upon a bonâ fide belief that his employ ment is regularly terminated, though it has not been so terminated in fact, is not liable to be convicted; and the bona fides of his conduct is a question to be determined by the justices. This was a case stated under the 20 & 21 Vict. c. 43, upon a conviction of the appellant by certain justices of Flintshire, under the 4 Geo. 4, c. 34, s. 3, for absenting himself from his service. [Q B. By the above section it is enacted, that if any artificer, &c. shall contract with any person to serve him for any time whatsoever, and having entered into such service shall absent himself from his service before the term of his contract shall be completed, then it shall be lawful for any justice of the peace upon complaint to issue his warrant for apprehending such person, and to examine into the nature of the complaint, and if it shall appear that such artificer, &c., hath not fulfilled his contract, or has been guilty of any other misconduct or misdemeanor, it shall be lawful for such justice to commit any such person to the house of correction, there to remain and be held to hard labour for a reasonable time not exceeding three months, and to abate a proportionate part of his wages for and during such period as he shall be so confined. vice of the respondents as an anchorsmith on the 4th It appeared that the appellant entered into the serJan. 1859, for an indefinite period, at certain specified prices, determinable on either of the parties giving to the other fourteen days' notice of his intention to determine, the contract, certain rules and regulations to be observed by the workmen. The appellant entered into and remained in the respondents' employment for many months. Amongst other rules of the factory was the following: 'Contractors, firemen and daymen, to give fourteen days' notice into the office before leaving their employment, end to receive the same." On the 23rd July he gave the manager of the respondents' works the following notice : "Mr. Wood, Brothers. : "July 23, 1859. "In the beginning of January last you reduced our prices, with a promise that as soon as trade was a little brisker you would give us our price back again; we now earnestly hope and trust that you will fulfil your promise, as we consider that our price is very small indeed, and we hope that you will take it into your serious consideration-if you will not fulfil your promise, we all (the anchorsmiths in your employ) do hereby give to Mr. Wood, Brothers, fourteen days' notice. "Dated this, the 23rd of July, 1859. "THE ANCHORSMITHS OF SALTNEY." On the following 6th Aug. the appellant left the employment of the respondents-the request contained in the notice not having been complied with. Thereupon proceedings were taken before justices against the appellant, and he was convicted, and sentenced to fourteen days' imprisonment, with hard labour, with an abatement of 41. from his wages. Welsby, for the respondents, contended that the notice given on the 23rd July was not valid, and was a nullity, and that the appellant therefore had left without lawful excuse. J. Brown, for the appellant, argued that this being a criminal charge it could not be adjudged that the appellant had been guilty merely because he may have given an informal notice. [COCKBURN, C.J.-It certainly appears to me that the leaving the employment must be with a guilty purpose.] It is not suggested that he acted viciously. The appellant ought not to be punished criminally for a matter which turns upon the legal sufficiency of notice. To constitute an offence under the statute, there must be a guilty intention: (Fowler v. Padget, 7 T. R. 509; the maxim of actus non facit reum, nisi mens sit rea applies; Herne v. Garton, 28 L. J. 216, M.C.) Welsby was here called upon, and argued that every absenting of himself without a lawful excuse is an offence under the statute. [HILL, J.-Suppose such a case as this-a man who has occasion to be absent sends a fellow-workman to ask for leave, and he tells Q. B.] THE OVERSEERS OF BISHOPWEARMOUTH v. THE EARL OF DURHAM. [Q. B. him that he has obtained it when he has not, would between low-water mark on the one side and this be an absenting of himself within the statute? low water-mark on the other side; every ship COCKBURN, C.J.-Must not two things concur-a entering the port may have to cast anchor there, or to wrongful absence, and a knowledge that it is a wrong- be moored to some moorings fixed in the river and ful absence?] I think not; it is merely necessary taken in the river, or on the quays or shores adjacent. that the absence should be without lawful excuse in The bishop and his lessee maintain the beacons and fact. [COCKBURN, C.J.-The Act treats the absence moorings in the river Wear. Previously to the apas a misdemeanor and offence, and if so, the well-pointment of the commissioners, the port and the known principle applies that there must be a wrongful intention. HILL, J.-The Act must not be taken in its naked words, for if so a man would be liable if he were laid upon a bed of sickness.] COCKBURN, C.J.-If a man absents himself with a knowledge that his employment is not at an end, he is guilty under the statute; but if he believes that his contract is at an end, and so leaves, he is not guilty. The committing justices do not appear to have considered the subject in this point of view. The case therefore ought to go back to them under the 6th section of the statute, with our opinion upon this point, and then they will decide whether the appellant left the employment in the bond fide belief that he had properly put an end to it, for if he did he would not be guilty under this statute. Rule accordingly. affairs and business thereof were managed and conducted by the Bishops of Durham or their lessees under leases similar to those granted to the appellants by officers or others in that behalf appointed or employed by such bishops or their lessees; and by such bishops' lessees or officers beacons were set up, moorings, buoys, posts and rings were placed and fixed within the port for the use and benefit of the ships entering the port, and other works were done for the maintenance of the port and the use and benefit of ships resorting to it. The tolls rated have been paid immemorially to the bishop or his lessee, and they have been called anchorage and beaconage tolls, being 1s. 2d. for and in respect of every British ship which enters the port. Formerly double that sum was paid, and now by Act of Parliament, in consequence of reciprocity treaties, the same sum is paid on every foreign ship which enters the port. The tolls are supposed formerly to have been collected by the water-bailiff appointed by the bishop or his lessee, but are now received by the collector of all the sound dues in the port of Sunderland, at his office in the Custom-honse there. The tolls appear to have been rated to the relief of the poor of the parish of Sunderland since 1719, but they were not rated in any of the townships into which the port of Sunderland extends till 1857. In that year the ancestor of the appellant, who was then lessee of the tolls, appealed against the rate for the parish of Sunderland, but abandoned that appeal and agreed with the overseers of Sunderland to be rated Poor-rate-Tolls-Anchorage-Beaconage. The port of Sunderland extends from the bar of the mouth of the river Wear, and low water mark of the sea up the river about eight miles, including so much of the river as is within such limits, and is in the several adjoining parishes. Any ship entering the river might have to cast anchor. Beacons had been set up and mooring buoys, posts, &c., placed within the port by the officers of the Bishop of Durham, who was the owner of the soil and freehold of the port below low-on 150l. Immediately afterwards the five townships water mark, and these were maintained by them for the use of the ships using the port. A payment of 1s. 2d. had been immemorially made to the Bishop called "anchorage a d beaconage tolls," by every ship entering the port. These tolls having been assessed to the poor rate: named in the above case were rated, those tolls making an aggregate of 4031. 38. 4d., which, if they are rateable, is admitted to be a fair amount. Taking all these are of opinion that facts into consideration, we not tolls in gross, but are tolls these tolls are connected with the occupation and use of the soil. Held, that they were not tolls in gross, but were connected They seem to us to be much more in the nature of dock dues. The bishop was the owner of the soil of with the occupation and use of the soil, and were rate-parts of the port, and by the outlay of money on able to the poor rate in all the parishes in which the port was situated, and to which ships paying the toll came, in the proportion of the number of ships coming into each of the parishes respectively. Atherton, Q.C. and Liddell appeared for the appellant, and Welsby and Davison for the respondents. The facts and arguments sufficiently appear in the following judgment : WIGHTMAN, J.-In answering the first question, whether the tolls are rateable, we have to consider whether they are tolls in gross or tolls connected with the occupation of the soil; and this must be determined in the same manner as if the nature of the soil had been discussed when they were received by the Bishop of Durham or his lessees before the 3 Geo. 3, the 6 & 7 Will. 4, c. 19, and the 21 & 22 Vict. c. 45-none of these statutes having severed the tolls from the soil if they ever were connected together. According to the statement in the case, these tolls have always been taken in respect of ships entering into the port of Sunderland. This port begins on crossing the bar at the mouth of the river Wear, extends to a bridge near Finnley Park, and comprehends the whole space of the river from low-water mark on the north side to lowwater mark on the south side, and is in several contiguous parishes or townships on both sides, usque ad medium filum aquæ. The bishop was the owner of the whole soil and freehold of the said port various works, he rendered the port safe and commodious for shipping, in consideration whereof, by the exercise of the highest prerogative of the Crown, he appears to have been authorised to receive a fixed sum as a reasonable amount for every ship which entered the port. Consuetudines, or tolls, are almost incident to every ownership of a port, and we think are to be considered as payable rationi soli for a benefit conferred, not as a matter of extortion under the colour of law. The toll here called anchorage and beaconage, but must be considered as covering all the accommodation afforded by the user of the port to the ships which frequent it, as no other payment is made to them. There was as strong objection offered to beaconage; but the owner of this port does not appear to have erected beacons within the port, and the anchorage and mileage show a direct use of the soil within the parish and township comprised in the rate; but if the use of the soil is in part consideration for the payment of the toll, we think this is enough to connect them with the occupation and use of the soil, and to render them rateable. We lately held, in the Runcorn case, the tolls called anchorage, which probably were for the use of the soil, were not rateable, but that was because it was agreed that the corporation of Liverpool, the appellants, were not owners and occupiers of any land within the township, the place where the ships anchored being extra-parochial. Here the soil where It appeared that the appellants had been found using an engine burning coal, which at certain times was emitting smoke. At the hearing of an information for this under the above section the justices considered the fact of the emission of smoke as conclusive against the appellants, and they were accordingly convicted. Quain, in support of the conviction, eontended that the justices were right, for that an engine which was actually emitting smoke must be deemed as against the appellants to be one not constructed so as to consume its own smoke. Mellish, for the appellants, argued that the fact that smoke issued from the engine was not conclusive, for that it might be constructed on the principle of consuming its own smoke, and so as to consume its own smoke, and yet it might emit smoke by the wilful neglect of the engine-driver or stoker, and that the justices ought to have entered into the question of whether or not the smoke was by the default of the driver. Q. B.] THE MANCHESTER, SHEFFIELD AND BIRMINGHAM RAILWAY COMPANY v. Wood. [Q. B. the ships anchored and the mooring chains were fixed | tive steam-engine to be used on the railway shall, if it was within the parish or township of the respondents. use coal or other similar fuel emitting smoke, be conIf there be a payment to the owner of the soil by the structed on the principle of consuming, and so as to party who uses the soil, and no other consideration can consume, its own smoke; and if any engine be not so be suggested for the payment, must not the use of the constructed, the company or party using such engine soil be regarded as the consideration for the payment? shall forfeit five pounds for every day during which The tolls originally connected with the soil may be such engine shall be used on the railway." severed from the soil and become tolls in gross. Here there is nothing to show such a severance, for the tolls and the soil have remained united in the same owner. Counsel for the appellant chiefly relied upon the Swansea case, 5 E. & B. There all the tolls, wheresoever collected within the port, were considered to be of the same uniform nature, and part of them being clearly not for the use of the soil and not rateable, this was supposed to give the same character to the whole. Rex v. Cook, 5 B. & C. 797, and the other lighthouse cases, were likewise referred to, but they merely decided that the owner of a lighthouse cannot be rated for passing tolls collected out of the parish, as they do not constitute part of the annual profits of house or land where the light is placed. The tolls in question, on the contrary, constitute part of the annual profits of the land occupied by the appellant within the township, and, therefore, are rateable. An objection was made that the fore shore, between high and low water mark, did not belong to the defendant: payments were sometimes made to private owners of the fore shore by ships for the use of it. How can these conventional payments made to others for the use of their soil at all affect the nature or the incidents of payments made to the bishop for the use of his soil? We are likewise asked by the first question whether the tolls are rateable in one, or which, of the townships or parishes? We answer, all or any part of them in which the port of Sunderland is situated to which ships paying the toll come; these seem to be the parish of Sunderland and the five townships in which the tolls are now rated. There are other parishes and townships into which the port extends, but it is not stated that ships which have paid the toll come into those parishes and townships. We do not think, that in respect to the tolls there is any profitable occupation of the soil of the port within those parishes or townships. In answer to the second question, we are of opinion that in the parish and five townships in which the tolls are rateable, they ought to be rated upon a calculation of the number of ships paying toll and coming into those parts of the port which were within the parish of Sunderland and the five townships respectively, and that they ought not to be rated according to the frontage or population, neither of which would afford any criterion for the profits of the soil of the port made within the parish or the township. Judgment for the respondents. THE MANCHESTER, SHEFFIELD AND LINCOLNSHIRE Held, that the fact that a locomotive steam-engine emits smoke is not conclusive against the company, but that it should be ascertained whether or not such emission of smoke is caused by the neglect of the party in charge of the engine, or from the engine not being so con stru tel as required. This was an appeal against a conviction of the above company for using an engine not constructed so as to consume its own smoke. Quain, in reply, argued that, even if it were by default of the stoker, the company would be equally liable. COCKBURN, C.J.-The words of the Act are, "constructed on the principle of consuming, and so as to consume, its own smoke." Now, it may be that it is not the fault of the engine, but of the person who uses it. I think, therefore, we should send this case back to the justices, with our opinion that they ought to inquire whether the emission of the smoke was the fault of the engine or of the person who had the management of it. HILL, J.-The penalty is imposed only in case the company use engines not constructed on the principle of consuming their own smoke. The justices do not appear to have ascertained this fact. BLACKBURN, J.-The justices have found that in consequence of the engine smoking on the occasions mentioned, that is conclusive evidence of its not being constructed on the principle of consuming its own smoke. In this they were wrong. Case to go back with the opinion of the court. Thursday Nov. 17. Re MIREHOUSE. Church-rate-Refusal to pay-Order of justices— 53 Geo. 3, c. 127, s. 7. The collector called for the rate and produced the receipt book as his authority to collect; the son of the ratepayer, by the authority of his father, refused to pay the rate, handing to the collector a written statement of his refusal : Held, a sufficient refusal to ground an order of justices for payment under the 53 Geo. 3, c. 127, s. 7. Rule nisi for a certiorari to quash an order of justices under the 53 Geo. 3, c. 127, s. 7, for the payment by Mr. Mirehouse of 11. 4s. Od. for arrears of church-rates, and 10s. costs. The validity of the church-rate was not disputed, but it was said that the order was made without jurisdiction, inasmuch as the refusal to pay on which the order was made happened more than six months before the complaint was made to the justices: (11 & 12 Vict. c. 43, s. 11.) It was admitted that if there was a sufficient refusal on the 8th Sept. 1858, the order was without jurisdiction. By sect. 114 of the 8 Vict. c. 20 (Railway Clauses The facts were, that on that day the parish clerk Consolidation Act), it is enacted that Every locomo-called at Mirehouse's mill, and saw his son (the father |