Q.B. Div.] RISHTON (app.) v. THE MAYOR, &c., OF HASLINGDEN (resps.). one occasion a horse and cart was stopped, and that practically no repairs had been done to the street at any time, but that only refuse had been cleared away. The magistrates found that it was not a highway repairable by the inhabitants at large, and that, therefore, the appellant was liable for the apportionment made upon him for the expenses of sewering the streets. Held, allowing the appeal, that this was not a street within the meaning of the Private Street Works Act 1892, being a footway repairable by the inhabitants at large. Also held, that, the onus probandi is upon the authority to show that a street is a street within the meaning of the Private Street Works Act 1892. Per curiam that, where the necessity for re-sewering a street arises not from any change of things in the street but from a new general system of sewering adopted in the district, the authority having been previously satisfied with the sewering, it should not be done at private expense. THIS was a case stated by two of Her Majesty's justices of the peace in and for the county of Lancaster, under the statute 42 & 43 Vict. c. 49, s. 33, for the purpose of obtaining the opinion of the court on questions of law which arose before them as hereinafter stated: Upon the application of the town clerk on behalf of the mayor, aldermen, and burgesses of the borough of Haslingden in the county of Lancaster, being the urban authority for the borough, we, the undersigned, appointed the 3rd May 1897, at the police court at Haslingden, for the hearing and determining of objections under the Private Street Works Act 1892 to the proposals of the authority with reference to the sewering of Back Pleasant-street within Haslingden and the provisional apportionment of the expenses thereof. On the 3rd May 1897 it was admitted before us that the Private Street Works Act 1892 had been duly adopted by the authority, and that the usual notices had been served upon the owners of property fronting, adjoining, and abutting on the street, and had been duly posted and advertised, and that notices of objections had been duly given by ten of the fifteen property owners included in the provisional apportionment. The appellant was one of the ten objectors. The following were the grounds of objection stated by the appellant, and also by the other objectors in their several notices of objections. (1.) That Back Pleasant-street is not or does not form part of a street within the meaning of the Private Street Works Act 1892. (2.) That Back Pleasant-street is a highway repairable by the inhabitants at large. (3.) That the proposed works were unreasonable. (4.) That Back Pleasant-street has already been sewered to the satisfaction of the Haslingden Urban Sanitary Authority. The estimate for the work was admitted to be reasonable and equitably apportioned amongst the various owners, but these objections were relied upon by the appellant as showing the nonliability of the owners to do or pay for the work, and were heard and decided by us as hereinafter appears. A plan of the street in question and proposed sewering was produced before us which was readily understood by us, as we both personally knew the locality well. It may be remarked that the streets and buildings 1eferred [Q.B. DIV. to in this case have existed in their present condition and position for seventy years at least. The question raised by objections numbered 1 and 2 were first considered. It was admitted that Back Pleasant-street is a back street about 147 yds. in length and varies in width, being 7ft. 6in. wide at the top and 8ft. 6in. wide at the bottom end nearest Deardengate and forms the northwest portion of a plot of land taken by a building association in the year 1806 for the erection of fifty houses, that these houses were erected by such association between the years 1806 and 1816, when the houses were conveyed by the trustees of such association to the several members thereof, that the houses were built twenty-five on each side of a new street made by the association, called Pleasant-street, which is 36ft. wide, with the backs of one row of houses abutting upon a street known as Far Back Pleasant-street, and the back of the other row of houses abutting upon Back Pleasant-street; that Pleasant-street and Back Pleasant Street, each run from Deardengate which is the main street of Haslingden to Bury-road which is one of the principal thoroughfares, that the houses erected by the association run the whole length of Pleasantstreet and Back Pleasant-street from Deardengate to Bury-road, that Back Pleasant-street and Pleasant-street were respectively formed as they now exist at the time of the erection of the houses by the association, that there was never any chain, gate, or other barrier or obstruction in or at either end of Back Pleasant-street, that there is a passage of 4ft. in width leading from Back Pleasant-street to Pleasant-street, about half-way down the street, that the north-west boundary of Back Pleasant street is a wall running the whole length of the street, which wall forms the boundary of the back yards and conveniences of houses erected on the opposite side thereof, and which houses front to Hindle-street in the Borough, that the wall forming the north-west boundary of the street belongs from Bury-road to a point about half way down Back Pleasant-street to the owners on the Pleasant-street side thereof, and thenceforward into Deardengate, to the owners on the Hindle-street side thereof, that there are openings in that part of the wall which belongs to the owners on the Hindle-street side thereof for the emptying of the ashpits and conveniences of their houses, and that that part of the wall mentioned first, has been kept in repair, and rebuilt by the owners of property on the Pleasant-street side thereof and the other part by the owners of property on the Hindle-street side thereof, and that since its formation Back Pleasant-street has been used by foot passengers without interruption. The following evidence was given for the respondents. Thomas Whittaker said: I now own a house at the corner of Bury-road and Pleasant-street, until recently owned by my mother, abutting upon Pleasant-street and Back Pleasant-street. I have repaired the wall on the north-west side of Back Pleasant-street opposite to my house. A man used to temporarily repair and clean the street for my mother, opposite to our property, but only by clearing away refuse thrown over the wall out of the back yards in Hindle-street. Thomas Sevire said: I lived at the house at the corner of Back Pleasant-street and Bury-road for forty-seven years from the year 1845. Mr. Ramsay, agent for a former owner of the property Q.B. Div.] RISHTON (app.) v. THE MAYOR, &C., OF HASLINGDEN (resps.). [Q.B. DIY. belonging to the last witness, and the mother of the last witness, each repaired Back Pleasant-street, opposite to their property, many a time, and Mrs. Whittaker claimed Back Pleasant-street as a private road. Their object in repairing was to clean the street opposite to their property. On one occasion, between 1845 and 1849, I saw Mr. Ramsay prevent a man with a horse and cart from going down Back Pleasant-street, and he told him it was a private street and the stranger had no right to go down the street. I only saw this one person stopped. I never heard of anyone else being stopped. It was not used by the public except by foot passengers, who used the street without interruption. Pleasantstreet would be better for passengers than Back Pleasant-street. Back Pleasant-st eet was only used by carts for the back privileges, taking away ashes, &c. Richard Taylor, borough surveyor, produced the plan of the street and the proposed sewer. He had been surveyor to the authority about sixteen years. He had never repaired the street except on one occasion, and that was at the request of a solicitor who occupied an office at the corner of Back Pleasant-street and Deardengate, and the entrance to whose office was in Back Pleasant-street. The solicitor told him his landlord declined to do any repairs in the street, and he wanted a clean approach to his office. The solicitor offered out of his own pocket to pay for the paving of the street from a point opposite to his office door to Deardengate, if the surveyor would do the work. The surveyor did the work and sent the bill to the solicitor who paid it. Pleasant-street was originally and is now paved with cobbles, and he had from time to time repaired it in the same style. Pleasant-street is treated as a highway repairable by the public, but is not yet paved with modern setts. Upon this evidence it was submitted on behalf of the appellant that respondents had made out no case, that the onus probandi was upon the respondents, and it was for them to show that Back Pleasant-street was a street within the meaning of the Private Street Works Act 1892, and to do this, having regard to a definition of a street in the Act, they must show and had failed to show that it was not a highway repairable by the inhabitants at large. Further, that the evidence already given proved that Back Pleasantstreet was a highway repairable by the public, inasmuch as it had been used by foot-passengers uninterruptedly for eighty years, and had never been repaired in any real sense by the private owners at any time. Being satisfied that the evidence already given was, in the absence of rebutting evidence, sufficient for the respondents' purpose, we overruled the objection. The appellant then called John Holt, who said he was born in December 1820 in a house in Back Pleasant-street and lived there forty years. He had since then lived in Pleasant-street and Hindlestreet. He had known Back Pleasant-street all his life, and never knew anyone stopped. Carts, horses, and foot-passengers had always used it. Pleasant-street and Back Pleasant-street were made before his time, and these streets were much used by people going between Bury-road and Deardengate. Manchester-road, which is a road going from Deardengate a little below Pleasantstreet and joining Bury-road further down, was not made until 1828. He remembered Manchesterroad being made. Richard Lord said he had known Back Pleasant street forty years, and never knew it treated as anything but a public street. George Law said he was sixty-six years old, and had known Back Pleasant-street all his life. It was always, so far as he knew, open to the public for all purposes. John Ashworth, an old surveyor of highways, in flagging the footpath in Pleasantstreet had put the scaplings which were left after the flags had been dressed upon Back Pleasantstreet solely to save the trouble of carting them away. He took them through the house from the front street to the back. This would be in 1873. After hearing the appellant's evidence on objec tions 1 and 2 we were satisfied that no repairs of a permanent character had been executed by anyone in Back Pleasant-street, though occasion. ally refuse had been cleaned off and inequalities removed by scraping or laying down a few flags or stones here and there from time to time by private tenants or owners, and that Back Pleasantstreet has not up to the present time been paved or flagged, but the surface of the street is simply the original soil. From its limited width (being in no part of its length more than 8ft. 6in. in width), and from its close proximity to Pleasantstreet, 36ft. in width, we were further satisfied that Back Pleasant-street was never intended nor ever used (in the ordinary meaning of the word used") as a public road, though occasionally foot passengers might pass along it, but it was made and practically used only by those desiring access to or egress from the back of the houses on the north-west side of Pleasant-street, also that from the manner in which the houses of the said association were built in 1816 it was evident to us that Pleasant-street was intended for and has ever since been used by the public as a highway, and that Back Pleasant-street and Far Back Pleasant-street were mere passages or back streets made for and as narrow as compatible with the requirements of the tenants occupying the houses in Pleasant-street. We therefore held that Back Pleasant-street had not at any time been used by the public as a thoroughfare, and was not a highway repairable by the public. The following evidence was then called by the respondents on the question raised by objections 3 and 4, that the proposed works are unreasonable, and that Back Pleasant-street has already been sewered to the satisfaction of the Haslingden Urban Sanitary Authority. Richard Taylor, the borough surveyor, said: Back Pleasant-street is not sewered. The Haslingden Local Board was formed in 1878, and Haslingden was incorporated in 1891. The present drain was laid when the houses were built in Pleasant-street except as to a short length at the Deardengate end of the street. The drain runs from the Bury-road end of Back Pleasant-street nearly the whole length of the street through the back yards of the houses abutting upon Back Pleasant-street, and drains the length of these houses. Near the Deardengate end there is a drain from some of the houses in Hindle-street, which crosses Back Pleasant-street, and is connected with the drain in the back yards. The present drain varies in depth from 2ft. 4in. to 3ft. 3in. below the surface. The cellars are not and cannot be drained by it. A part of the drain is constructed of earthenware pipes and the remainder is simply a stone drain. Near the Deardengate end of Back Pleasant-street the drain comes out of the back yards into Back Pleasant-street, Q.B. Div.] RISHTON (app.) v. THE MAYOR, &c., OF HASLINGDEN (resps.). and here, constructed as a sewer, runs down the centre of that street into the sewer in Deardengate. The latter portion of the sewer, which is 26ft. in length, was constructed some years ago by the authority at their own expense, and is not intended to be relayed, and the expense of it is not included in the provisional apportionment. In 1886 Dr. Harrison, one of the objectors, rebuilt some property in Pleasant-street and Back Pleasant-street, and submitted plans to the Haslingden Local Board showing (inter alia) the present drain at that particular point, and how he proposed to divert the drain and connect with the sewer. The plans were approved and no objection was taken by the authority, to the drain, and its insufficiency has never been raised until notices were given in connection with the present proceedings. A general system of sewering of the district has been under consideration for some years, and has only recently been agreed upon. It is now intended to substitute for the present drain a sewer to run the whole length of Back Pleasant-street down the centre of the street at a depth suitable to, and in accordance with the general system of sewering of the town, and that each house be separately connected with such sewer. For the appellant and the other objectors it was contended that the drains in the back yards of the property in Back Pleasant-street had been in existence for many years, not simply as a drain for a few houses, but as a sewer receiving the sewage of the houses on both sides of Back Pleasant-street and belonging to different owners, and the inaction of the town authorities in years past, and particularly when Dr. Harrison's plans (before referred to) were before them, prohibited the respondents from treating this sewer now as simply a private drain; and further that, as all sewers were now vested in the urban authority, it was the duty of the respondents to make any alterations in its structure or position at the public expense. Further, that the passive attitude of the respondents in past years was evidence that Back Pleasant-street was sewered to their satisfaction and that the expense of constructing the new sewer must be borne by them. After hearing this evidence we considered the question whether the drain was a sewer which had vested in and became repairable by the respondents, and decided in the negative. In our opinion the very construction and position precluded its ever having been sanctioned by any public authority as a suitable sewer. It was not uniform n construction, but where made of stone was certainly faulty. Its position prevented it draining the cellars; therefore to that extent the houses were not sewered at all. The delay in not requiring the owners to put in a proper sewer we fully understood as knowing that, until the present system of drainage was decided upon, the levels, &c., could not be stated, and further, that no unreasonable delay had taken place after a general system of drainage had been adopted. We therefore disallowed the objections and approved the proposals of the respondents, and the provisional apportionments of the expenses. The questions for the consideration of the court are:-1. Were we right in overruling the objection taken on behalf of the appellant that the onus probandi was upon the respondents to show that Back Pleasant-street was a street within the meaning of the Private Street Works Act 1892, and that they had failed to do so? 2. Were we justified upon the evidence in holding that Back [Q.B. DIV. Pleasant-street is not a highway repairable by the inhabitants at large? 3. Were we justified upon the evidence in holding that Back Pleasant-street is a street not sewered to the satisfaction of the authority? If the court is of opinion that any one of these questions should be answered in the negative, the proposals of the respondents with reference to the sewering of Back Pleasant-street and the provisional apportionment of the expenses thereof are to be quashed; otherwise they are to stand approved. Given under our hands this 30th day of July 1897, at Haslingden, in the county of Lancaster. THOMAS WHITTAKER, GEORGE ASHWORTH SMITH. By the Private Street Works Act 1892 (55 & 56 Vict. c. 57), s. 2, the Act is to apply to any urban sanitary district in which it is adopted. Sect. 3 gives the mode of adoption by the urban authorities. By sect. 5: In this Act, if not inconsistent with the context, the expression "street means a street as defined by the Public Health Acts, and not being a highway repairable by the inhabitants at large. By sect. 6, "private street works" for sewering, paving, lighting, &c., may be done by the urban authority, and the mode of carrying out such works is described. Loehnis for the appellant.-This street was and is a highway repairable by the inhabitants at large. He referred to the Private Street Works Act 1892 (55 & 56 Vict. c. 57), ss. 2, 3, 5, 6. [CHANNELL, J.-That section is an expansion of sect. 150 of the Public Health Act 1875.] That is so. Therefore Bonella v. The Twickenham Local Board (58 L. T. Rep. 299; 20 Q. B. Div. 63) is an authority. The doctrine in Barry and the Cadoxton Local Bourd v. Parry (72 L. T. Rep. 692; (1895) 2 Q. B. 110) does not apply to sewering, but only to re-channelling and repaving. Temple Franks for the authority. This case does not fall within the decision of Bonella v. The Twickenham Local Board (ubi sup.) at all. The other side contend that this street has been sewered before to the satisfaction of the authority. For some purposes I agree that this street has become vested in the local authority under sect. 150 of the Public Health Act 1875. contention is, that as a street this has never been sewered at all. All that exists is a private drain. Under sect. 19 of the Public Health Amendment Act 1890 this, no doubt, would be a single private drain: My The Mayor of Eastbourne v. Bradford, 74 L. T. [Loehnis mentioned Reg. v. The Mayor of Hastings 75 L. T. Rep. 377; (1897) 1 Q. B. 46.] This street is not sewered. My answer to the first point is, that the authority can proceed under sect. 6 of the Private Street Works Act 1892. He referred to Seal v. The Merthyr Tydfil Urban District Council, 77 L. T. Rep. 303; (1897) 2 Q. B. 593. There has been no expression of satisfaction of this as a sewer from the local authority. The question of satisfaction is a question of fact. Q.B. Div.] RISHTON (app.) v. THE MAYOR, &c., OF HASLINGDEN (resps.). Expressed satisfaction depends on circumstances; it does not depend on length of time at all: Handsworth District Council v. Derrington, 77 L. T. Rep. 73; (1897) 2 Ch. 438; Handsworth Local Board v. Taylor, 69 L. T. Rep. 798; (1897) 2 Ch. 442, n. As to what is a reasonable time, see Walthamstow Local Board v. Staines, 65 L. T. Rep. 430; (1891) 2 Ch. 606. Whether this is a highway or no is a pure question of fact, and the finding of the magistrates should not be interfered with unless your Lordships are clearly of opinion that there was no evidence at all upon which they could come to the conclusion at which they have arrived. Lochnis in reply. Even if the contention of the authority is right, the time which they have allowed to elapse makes it unreasonable for them now to require these works to be contributed to by the appellant. As to whether this is a highway, the evidence shows that it cannot be anything but a public highway. Dec. 21.-CHANNELL, J. read the following written judgment of the court:-This was a case stated by magistrates under sect. 33 of the Private Streets Act 1892. The appellant Rishton had duly objected to being charged with a proportion of the expenses of sewering a street called Back Pleasant-street, in Haslingden, and the magistrates, having heard the objections, decided against him and stated this case. The objections resolved themselves into two: first, that Back Pleasant-street was a highway repairable by the inhabitants at large; and, second, that it had already been sewered to the satisfaction of the defendants. The case states that Back Pleasantstreet was formed between 1806 and 1816, and was then and has always remained since open at both ends into old highways; and that the street and buildings have existed in their present condition and position for seventy years at least, and there is an express admission that, since its formation, Back Pleasant-street had been used by footpassengers without interuption. The case then sets out the evidence of the witnesses both for the respondents and the appellant, and the magistrates state their reasons for coming to the conclusion that Back Pleasant-street was not a highway repairable by the public. They submit, as to this part of the case, two questions: 1 Were we right in overruling the objection taken on behalf of the appellant that the onus probandi was upon the respondents to show that Back Pleasant-street was a street within the meaning of the Private Streets Act 1892, and that they had failed to do so? 2. Were we justified upon the evidence in holding that Back Pleasant-street is not a highway repairable by the inhabitants at large. The first of these questions is not very important. The onus probandi clearly was on the respondents, but now that we have before us not only the evidence of the respondents but also that of the appellant, it becomes unnecessary to consider what would have been the effect of the respondents' evidence had it stood alone, and whether or not it would have satisfied the onus. The second question is the one which must decide this part of the case. The magistrates ask, "Were we justified in finding?" It is contended that, as the magistrates can only state a case upon a point of law, and must themselves [Q.B. DIV. decide a question of fact, the question means, "Was there any evidence upon which we could find as we did?" and this we must think is so. If the whole matter were open to us, we should probably come to the conclusion that Back Pleasant-street was, and had been from the time of its formation, a highway not only for footpassengers but also for carts and carriages. It is a very strong fact that it was from the first a thoroughfare open at both ends to old highways. The fact that no repairs have been done to it at the public expense is a matter of very small weight, having regard to the nature of the place, and the suggested repairs at private expense were only the cleaning of refuse away and other small matters. If it was a highway before 1835, it would be repairable by the inhabitants at large without any formalities having been gone through to take it over. The whole question, however, is not open to us, and as there is in the evidence of Thomas Sevire one case of a horse and cart being stopped, and as upon the question of carriage-way the fact that the public have not repaired is a much stronger piece of evidence than it is in reference to a footway, we think that we cannot hold that there was no evidence upon which the magistrates could find that this was not a public carriage-way. Upon the question whether it was a public footway the admission appears to us conclusive, and there is nothing whatever in the evidence set out inconsistent with this. The points urged before us by the counsel for the respondents as evidence justifying the finding of the magistrates, which we must assume to be, although they do not very distinctly state it, that there was (at least b fore 1835) no further footway are the absence of proof of public repairs, the suggested proof of private repairs, and the original construction of the passage in question. As to these, the construction appears to us to favour its being a public footway, the private repairs are not proved even in the view of the magistrates, and the absence of public repairs is accounted for by the nature of the place. We think, therefore, that this case must be dealt with upon the footing that this was prior to 1835 a public footway. It was urged that only one witness spoke as to the time before 1835, but any difficulty on that point is quite got over by the admissions. This being so, and there having been no addition to the old footway, it seems to us that the place in question is not a "street" within the definition in the Private Streets Act. It is not like the case where there being an old footway, a new street has been formed by throwing into it more land. On this ground we think that the appeal must be allowed, and it becomes unnecessary for us to decide the other question whether the urban authority can now declare themselves not satisfied with the sewering of Back Pleasant-street, or whether the case comes within the doctrine of Bonella v. The Twickenham Board (ubi sup.) and the subsequent cases following that It appears to us that it is in fact sewered, although very imperfectly and badly, and that as there has been no change whatever in this street for seventy years, and the urban authority have been contented with it ever since they became an authority, they cannot say that they are dissatisfied with it. We think that the decision of Romer, J. in The Handsworth Local Board v. Taylor (ubi sup.), which was quoted to us, applies case. only to a growing street, and that in the present case, if there had been new buildings fronting this street, the authority might have said they had never been satisfied with the sewering of the street which it had become. They have, however, been satisfied with the sewering of the street which in fact it is. The necessity for the works now proposed has not arisen from any change of things in the street in question, but from a new general system of sewering of the district having been recently adopted. The new sewer for this locality is really wanted for two houses in Pleasant-street and Hindle-street, and it would be a very remarkable result of the legislation if the fact of there being a private back passage between these two streets enabled the local authority to do at the private expense of the owners works which, if there were no such pas age, would have to be done at the public expense. If this view is correct the appeal should be allowed on this ground also; but we have not very fully considered it, and base our judgment upon the ground that the place in question is not a street within the meaning of the Private Streets Act 1892, being a footway repairable by the inhabitants at large. Appeal allowed. Solicitor for the appellant, T. H. Philpots, for Whitaker and Hibbert, Haslingden. Solicitors for the respondents, Harrison and Davies, for W. Musgrave. Friday, Jan. 14, 1898. (Before DAY and LAWRANCE, JJ.) MCLEAN (app.) v. MONK (resp.). (a) Animals-Holding sale of swine-Taking round swine in cart and offering for sale-Diseases of Animals Act 1894 (57 & 58 Vict. c. 57), s 22, sub-s. xix.-Markets and Fairs (Swine Fever) Order 1896. 66 By an order of the Board of Agriculture, dated the 11th Dec. 1896, made in pursuance of sect. 22, sub-sect. xix., of the Diseases of Animals Act 1894, no market, fair, sale, or exhibition of swine shall be held in a district to which this order applies except as expressly authorised by this order," and " a sale of swine (not being in a swine fever infected area) may be held with the licence of the local authority." The respondent Monk was in charge of a horse and float passing along a highway containing pigs, two of which had been previously ordered, and, whilst so travelling, asked other people if they wanted to buy pigs, and subsequently sold them all to various people. This was not a swine fever infected area, and there had been no licence obtained from the local authority. The magistrates held that there had been no contravention of the order of 1896, and dismissed the information. Held (dismissing the appeal), that the magistrates were right, for, although there was a selling, there was no holding a sale. THIS was a case stated by two of Her Majesty's justices of the peace acting in and for the petty sessional division of the hundred of Leyland in the county of Lancaster. (a) Reported by W. DE B. HERBERT, Esq., Barrister-at-Law. MAG. CAS.-VOL. XVIII. [Q.B. DIV. 1. At a petty sessions holden at Chorley in the county of Lancaster, on the 8th June 1897, and by adjournment on the 6th July 1897, before us the undersigned justices of the peace for the county, an information laid on the 5th June 1897 by Duncan McLean, inspector of police for the county of Lancaster (hereinafter called the appellant), against William Monks of Hindley in the same county, pig dealer (hereinafter called the respondent), was heard and determined by us. 2. The information was laid under the Markets and Fairs (Swine Fever) Order 1896, by the appellant against the respondent charging that the respondent on the 1st May 1897, at Coppull, unlawfully did remove, expose for sale, and sell certain pigs in contravention of an order of the Board of Agriculture, entitled "The Markets and Fairs (Swine Fever) Order 1896." 3. Upon the hearing of the information it was proved by several witnesses, and admitted by the respondent, that the respondent (who lives some ten miles from Coppull, the place where the offence was alleged to have been committed) was in charge of a certain horse and float or vehicle on wheels, which was passing along the highway, and which contained a number of pigs, two of which pigs had previously been ordered upon approbation by one person, and that the respondent while so travelling asked other persons in Coppull aforesaid if they wanted to buy any pigs, and that he subsequently sold and delivered all the pigs to four persons at different farms in the township at fair and proper prices. 4. One of the witnesses for the prosecution stated that within three months after the sale to her three of the pigs so sold by the respondent died of swine fever, but no veterinary or other corroborative evidence was given as to the cause of death of such pigs, and we considered it immaterial to the issue before us. 5. For the defence all the facts were admitted, but it was contended that there had been no contravention of the Markets and Fairs (Swine Fever) Order 1896, inasmuch as Coppul had not been declared by the Board of Agriculture to be in a swine fever infected area, the pigs were not removed contrary to any order of the Board of Agriculture, and they had not been exposed for sale and sold at a market, fair, sale, or exhibition held in contravention of the order of the 11th Dec 1896; and it was admitted by the appellant that the township of Coppull had not been declared as within the infected area for the county of Lancaster. 6. On the above facts and admissions we held as a matter of law that there had been no contravention of the Markets and Fairs (Swine Fever) Order 1896, as the order was made under the Diseases of Animals Act 1894, sect. 22, sub-sect. xix., and that neither the sub-section of the Act nor the order of 1896 refer to private sales such as those made by the respondent in this case, and we thereupon dismissed the information. 7. The question for the opinion of the court is, whether our determination was right in point of law. If the court should be of that opinion, the information to stand dismissed; but if the court should be of opinion otherwise, the court is humbly solicited to remit the case to us with an intimasion of their opinion to that effect, or to make 2 R |