running through or being in any land adjoining or belonging EMBLETON to the dwelling-house of the said Duke; contrary to the form of the statute in such case made and provided.

"Sworn," &c.

This information was laid under stat. 7 & 8 Geo. IV. c. 29, s. 34 (1). The prosecutor and the above-named respondent (hereinafter called "the defendant ") appeared at the hearing, by adjournment, on 7th April, 1860. The facts were admitted by the defendant to be correctly laid in the information, with this exception, that the place where the offence was committed was the sea shore, between high and low water mark at ordinary tides, and was, at the time the offence was so committed,' covered by the sea. At low water this place was dry land.

Upon this evidence it was contended, on the part of the prosecutor, that, notwithstanding that circumstance, the place where the offence was committed was within the body of the county, and therefore within the jurisdiction of the justices. On the part of the defendant it was argued that it was only within the jurisdiction of the justices when it was low water, but when the tide was full it then ceased to be so, and was then within the jurisdiction of the Admiralty.

Upor this state of doubt, the justices dismissed the information for want of jurisdiction.

The question for the opinion of the Court was, whether their determination that they had no jurisdiction was or was not right in law.

If the Court should be of opinion that their determination was wrong, the justices requested the Court to remit the matter. to them with the opinion of the Court thereon accordingly; or to make such other order in relation to the matter as to the Court should seem meet.

Manisty, for the appellant:

The question is whether the jurisdiction of the justices of a county extends over that portion of the sea shore, adjoining the county, which is between high and low water mark. Reg. v. Musson (2) shows that the portion of the sea shore in *question is within the body of the county, although there is no primâ facie presumption that it forms part of the parish coming down to the shore. The justices therefore, in the present case, clearly had jurisdiction to take cognizance of the offence. ***

(COCKBURN, Ch. J.: Assuming the place in question to be open sea, could the Crown have granted, at any time, an exclusive right of fishery in it?)

(1) Repealed, 24 & 25 Viet. c. 95.

(2) 112 R. R. 828 (8 El. & Bl. 900).

ፖ. BROWN.

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[236]

Before Magna Charta the Crown had power to make such a grant. Bagot v. Orr (1) shows that there may be an exclusive right of fishing for salmon in the open sea as far as low water mark. The only matter for the consideration of the Court is whether or not the sea shore between high and low water mark is within the body of the adjacent county: if so, the Admiralty can have no jurisdiction over it. The law is expressly laid down to that effect in 4 Inst. 134, where Lord Coke says that to the objection That whereas the conusance of all contracts and other things done upon the sea belongeth to the admirall jurisdiction, the same are made triable at the common law, by supposing the same to have been done in Cheapside, and such places," the answer is that "By the lawes of this realm the Court of the admirall hath no conusance, power, or jurisdiction of any manner *of contract, plea, or querele within any county of the realm, either upon the land or the water: but every such contract, plea, or querele, and all other things rising within any county of the realm, either upon the land or the water, and also wreck of the sea, ought to be tried, determined, discussed, and remedied by the lawes of the land, and not before, or by the admirall nor his lieutenant in any manner. So as it is not materiall whether the place be upon the water infra fluxum et refluxum aquæ: but whether it be upon any water within any county.

No counsel appeared for the respondent.

COCKBURN, Ch. J.:

We must assume that the justices were satisfied of the fact that the Duke of Northumberland had the exclusive right of fishing in the sea at the place where the offence was committed: and that the only question submitted to us is whether or not they had jurisdiction to take cognizance of offences committed in the part of the sea, adjoining their county, comprised between high and low water mark. Reg. v. Musson (2) appears to be a direct authority that such part of the sea is within the body of the adjoining county. It follows that the justices had, and ought to have exercised, jurisdiction in the matter: which must therefore be remitted to them.

(WIGHTMAN, J., was absent.)

HILL and BLACKBURN, JJ. concurred.

Judgment for the appellant. Case remitted to the justices.

(1) 5 R. R. 668 (2 Bos. & P. 472).

(2) 112 R. R. 828 (8 El. & Bl. 900).

CLEMENTS . SMITH.

(3 El. & El. 238–243; S. C. 30 L. J. M. C. 16; 6 Jur. N. S. 1149; 3 L. T. N. S• 295; 9 W. R. 53.)

་་

The General Turnpike Act, 3 Geo. IV. c. 126, enacts, by sect. 32, "that no toll shall be demanded or taken on any turnpike road, for any horse, beast or other cattle or carriage employed in carrying or conveying, having been employed only in carrying or conveying on the same day," any hay, straw, fodder for cattle, and corn in the straw, which has grown or arisen on land or ground in the occupation of the owner of any such hay, straw, fodder or corn in the straw, potatoes or other agricultural produce, and which has not been bought, sold or disposed of, nor is going to be sold or disposed of."

A horse and cart passed through a toll-gate, carrying threshed barley, which had grown on land in the occupation of the owner, to a mill to be ground into meal for feeding the owner's pigs. They repassed on the same day laden with barley-meal obtained from the mill, the produce of another parcel of barley grown by the same owner on the same land, and previously sent to be ground into meal for the same purpose. The horse and cart had not been employed in any other way on the same day: Held, that they were exempt from toll under the above enactment on each journey for that both the barley and the barleymeal came within the description of fodder for cattle."

[All turnpike trusts having expired, it is considered sufficient to retain the head-note of this case.]

DOICK . PHELPS.

(3 El. & El. 244-253; S. C. 30 L. J. M. C. 2; 6 Jur. N. S. 1371; 3 L. T. N. S. 296; 9 W. R. 70.)

Navigation of the Thames by "western barges." Superseded by s. 312 of the Thames Conservancy Act, 1891 (57 & 58 Vict. c. clxxxvii.).]

EX PARTE BARTLETT (1).

(3 El. & El. 253-256; S. C. 30 L. J. M. C. 65; 6 Jur. N. S. 1196; 3 L. T. N. S. 316; 9 W. R. 54.)

66

66

The Highway Act, 1835 (5 & 6 Will. IV. c. 50), s. 95, enacts, that if on the hearing of" a summons respecting the repair of any highway the duty or obligation of such repairs is denied by the surveyor of the parish alleged to be chargeable with the repairs on behalf of the inhabitants of the parish," "it shall then be lawful for " the "justices' in Special Sessions for the highways, before whom the summons is heard, and they are hereby required, to direct a bill of indictment to be preferred at the next Assizes against the inhabitants of the parish' "for suffering and permitting the said highway to be out of repair: Held, that, although where the road alleged to be out of repair is admitted at the hearing to be a highway and to need repair, and only the liability to repair is disputed by the parish, this section renders it imperative on the justices to order an indictment to be preferred, they have no jurisdiction to make such an order, if it appears that the parish has already been acquitted on a similar indictment.

KINGLAKE, Serjt., moved, on behalf of John Bartlett, for a rule calling on three justices of Somersetshire to show cause why they should not make an order, under stat. 5 & 6 Will. IV. c. 50, s. 95, directing that an indictment should be preferred. against the inhabitants of East Coker for the non-repair of a certain highway.

(1) Reg. v. Farrer (1866) L. R. 1 Q. B. 558, 566, 36 L. J. M. C. 210, 14

L. T. 515.

1860.

Nor. 14.

1860. Nov. 14.

1860. Nov. 15.

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Ex parte BARTLETT.

[ *254 ]

[255]

It appeared from the applicant's affidavit that, on 29th August, 1860, he laid an information before a justice of the county, alleging that a highway called Isles Lane, in the parish of East Coker, in the said county, extending from its connection with the public highway from East Coker to Pendomer to the point which connects it with the highway from East Coker to Sutton Bingham, was out of repair, and that the parish of East Coker was chargeable with the repair; that thereupon the justice *issued a summons to the surveyor of the said parish, to appear before the justices at the next Special Highway Sessions for that division of the county, to be holden on 5th September, 1860; that at those Sessions the surveyor appeared before the three justices called upon by the proposed rule, and, on behalf of the parish denied the duty or obligation to repair, on the ground that a previous indictment against the inhabitants of the parish, for the non-repair of the same highway, had been preferred by order of justices, under stat. 5 & 6 Will. IV. c. 50, s. 95, and a verdict of acquittal had been returned thereon, at the last Lent Assizes for the county. That thereupon the applicant applied to the justices to order, under the 95th section of the said Act, an indictment to be preferred against the parish; which they refused to do. The affidavit further stated that, at the trial of the indictment at the Lent Assizes, conclusive evidence was given of user of the lane by the public, as a highway, for the last fifty years and upwards, and that a large portion of such highway had been from time to time repaired by the parish of East Coker; and that, among other grounds of defence, the defendants then contended that a portion of the highway was not within their parish; and the jury, after being locked up nearly five hours, gave a verdict of acquittal, which was against the evidence and the summing up of the presiding Judge. There were also affidavits of aged persons, as to the user of the lane for many years as a highway: and that a great portion of it had been confessedly repaired by the parish of East Coker, with hard materials, for a number of years.

Kinglake, Serjt., for his rule:

The justices were bound to order the indictment to be preferred: * * Reg. v. Arnould (1).

(HILL, J.: There is this distinction between that case and the present, that, here, the road has been found by the verdict of a jury not to be a highway repairable by the parish. I think that the justices are justified in declining to make an order if they have proof before them that the parish is not liable.)

(1) 112 R. R. 690 (8 El. & Bl. 550).

The verdict was a general one of Not guilty: but, if it is an answer to a fresh indictment, it may be given in evidence at the trial.

(BLACKBURN, J.: It appears from Reg. v. Heanor (1), that an indictment ought not to be preferred against the parish, unless the road is a highway.)

COCKBURN, Ch. J.:

I am of opinion that there should be no rule. This is an application to us for our summary interposition, the exercise of which is discretionary, and ought not, I think, to be put in force in the present case. It is clear that stat. 5 & 6 Will. IV. c. 50, s. 95, requires the justices to direct an indictment to be preferred, only where the liability to repair the road is disputed and it has not been already determined by verdict that the road is not a highway. It is evident *that, if this rule were granted,. parishes might be perpetually harassed by fresh indictments for the non-repair of roads, their liability to repair which had already been negatived by the verdict of a jury. That would encourage a vexatious course of proceeding. Our refusal to grant this application does not, on the other hand, preclude the applicant from preferring an indictment against the parish at common law.

(WIGHTMAN, J., was absent.)

HILL, J.:

I am of the same opinion. Sects. 94 and 95 of stat. 5 & 6 Will. IV. c. 50, apply only to the case of an admitted highway. In order to found the jurisdiction of the justices to make the order for an indictment the road must be a highway, and it must be out of repair; which latter fact the justices are to ascertain either in person or by a surveyor. Then comes the question of the liability to repair. If that only is disputed, and the facts are admitted, the justices are to order an indictment to bo preferred, but not otherwise.

BLACKBURN, J.:

Sect. 95 assumes that there is a highway, and that it is out of repair. These two facts are conditions precedent to the justices. acting in the matter. When these facts have been established, and not before, the justices have no discretion to refuse to direct an indictment to be preferred against those by whom the liability to repair is denied.

(1) 66 R. R. 553 (6 Q. B. 745).

Rule refused.

Ex parte BARTLETT.

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