imposes six calendar months from the time when the matter of

HILL

ť.

a complaint or information arises, as the period of limitation THORNCROFT. within which a complaint or information, not theretofore restricted as to time, must be made. It is admitted that the infor mation in the present case fell within the operation of this enactment unless it is exempted therefrom by sect. 35 of the same statute; and I think that it is not so. Sect. 35 is in terms limited to any warrant or order for the removal of any poor person." In the case before us, the order of justices is neither a warrant nor an order for removal, but simply an order for the payment of costs and expenses consequent upon an order of removal; nor does it fairly come within what may be supposed to have been the intention of the Legislature in enacting the exemption in question. There was good reason for not restricting unduly the time for removing a pauper; but the question of costs stands on a very different footing. A parish is a fluctuating community; and it would have been highly inexpedient, not to say unjust, to saddle one set of inhabitants with costs chargeable upon their predecessors. Apart, however, from considerations of that nature, suffice it to say that the order before us is not a warrant or order for the removal of any poor person" within the meaning of stat. 11 & 12 Vict. c. 43, s. 35. The argument for the respondent fails, therefore, upon both grounds.

(WIGHTMAN, J., was absent.)

HILL, J.:

I am of the same opinion. This was an *application to justices by Brighton against Cullompton, for an order for the costs of the maintenance of a pauper removed from the former to the latter. The information was laid under stat. 4 & 5 Will. IV. c. 76, s. 84, and the whole amount of the costs incurred in the pauper's maintenance, from 14th October, 1853, the date on which the notice of chargeability was served on Cullompton, to 9th March, 1854, the date of her actual removal, were claimed as recoverable. In order to ascertain how far stat. 11 & 12 Vict. c. 43, s. 11, affects the right of Brighton to recover these costs, it is important to consider the provisions of the statute of Will. IV. Sect. 84 of that Act enacts that the costs in question shall be recoverable "in the same manner as any penalties or forfeitures are by this Act recoverable; " that is, as appears from sect. 99, by order of justices made on a distinct information in that behalf. The costs are therefore recoverable by proceedings consequent upon, not under, the original order of removal. But stat. 11 & 12 Vict. c. 43, s. 11, expressly enacts

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[ *270 j

HILL that in all cases (and the present is one) where no time is THORNCROFT. Specially limited for laying an information in the Act relating to the particular case "such information shall be laid within six calendar months from the time when the matter of such " "information" "arose." The present information not having been laid till upwards of six calendar months after the matter of it arose, was clearly, therefore, too late, unless it falls within the exemption created by sect. 35 in favour of "any warrant or order for the removal of any poor person." But, as I have already said, this information forms no part of the warrant or order for removal, but is a step subsequent to and wholly distinet from it. I may also observe that sect. 35 is satisfied by *supposing it to enact merely that none of the forms given in the schedule to the Act, and which, by sect. 32, are to be deemed good, valid and sufficient in law, shall be applicable to a warrant or order of removal. It does not exempt from the operation of the Act an information of the present description, any more than any other proceeding. I think, therefore, that the limitation clause clearly applies, and that the justices had no jurisdiction. to make any order at all. Upon the other point, I entirely concur in all that the LORD CHIEF JUSTICE has said, and agree with him that, if the limitation clause had not applied, no further costs of the pauper's maintenance could have been recovered by the relieving parish than those incurred during the twentyone days next following the service by them of the notice of chargeability.

[ *271 ]

BLACKBURN, J.:

I am of the same opinion on both points. Stat. 11 & 12 Vict. c. 43, applies generally to all proceedings by way of information or complaint before justices. Sect. 35 exempts certain matters from the operation of these general provisions, orders of removal amongst them: but this exemption evidently applies to such orders themselves, only, not to proceedings taken in consequence of them. Now an order for the costs of the maintenance of a pauper, made consequently to an order of removal, is no part of the order of removal. Stat. 4 & 5 Will. IV. c. 76, s. 84, taken in conjunction with sect. 99, enacts that these costs shall be recoverable by a distinct and independent information and order of justices made thereupon. No limitation of time being fixed by that Act, for laying the information, the case clearly falls within the very words of stat. 11 & 12 Vict. c. 43, s. 11, and is not within the benefit of sect. 35. And, independently of the provisions of the later statute, it seems only reasonable that a parish should not be liable to have such claims

raked up against it at any distance of time. Upon the other point, I entirely agree with the opinion of the LORD CHIEF JUSTICE, and with the reasons which he has given for it.

Order quashed, without costs.

REG. v. BODKIN.

(3 El. & El. 271-276; S. C. 30 L. J. M. C. 38; 6 Jur. N. S. 1270.) [Obsolete decision under the Nuisances Removal Act, 1855 (18 & 19 Vict. c. 121), s. 22, repealed (except as to London), 38 & 39 Vict. c. 55, s. 343; and as to London, 54 & 55 Vict. c. 76, s. 142. See now Public Health Act, 1875 (38 & 39 Viet. c. 55), s. 41.]

REG. v. GOSSE.

(3 El. & El. 277–282; S. C. 30 L. J. M. C. 41; 6 Jur. N. S. 1369; 3 L. T. N. S. 404.)

By the Nuisances Removal Act, 1855, 18 & 19 Vict. c. 121 (1), s. 22, whenever any drain used for the conveyance of sewage from any house, buildings, or premises, is a nuisance, and cannot, in the opinion of the local authority, be rendered innocuous without the laying down of a sewer, the local authority are empowered and required to lay down such sewer, and are authorized and empowered to assess every house, building, or premises using the same, to such payment as they shall think just and reasonable. By sect. 3, in a place where a nuisances removal committee constitutes the local authority, the surveyors of highways for the time being of such place are made ex officio members of the committee. And by sect. 7, "all charges and expenses incurred by the local authority in executing this Act, and not recovered as by this Act provided, may be defrayed" in such a place "out of highway rates, or any fund applicable in aid or in lieu thereof."

A nuisances removal committee having, under sect. 22, laid down a sewer to render innocuous a drain constructed before the passing of the Act by the then surveyors of highways: Held, that whether or not by reason of sect. 7 the highway rates were available as an auxiliary fund towards defraying the expenses thus incurred, the committee were bound, before resorting to that fund, to assess in the first instance, under sect. 22, the houses, buildings and premises using the

sewer.

An order of justices not warranted by the provisions of an Act of Parliament, may be removed into this Court by certiorari, though the Act contains a section taking away the certiorari.

BADELEY had obtained a rule calling upon Henry Gosse and Robert Carter, Esquires, two justices of Surrey, to show cause why a certiorari should not issue to remove into this Court, an order, under their hands and seals, for the payment by the surveyors of highways for the parish of Ewell of the sum of 5021. 48. 3d., being the amount alleged to have been expended for sewers and structural works done by the local authority, under the Nuisances Removal Act for England, 1855 (1).

The rule was moved on behalf of William Hobman, a land owner and ratepayer in the parish of Ewell; and the following facts appeared from the affidavits. In the year 1857, a nuisances See now Public Health Act, 1875 (38 & 39 Vict. c. 55) s. 41.

(1) Repealed (except as to London), 38 & 39 Vict. c. 55, s. 343; and as to London, 54 & 55 Vict. c. 76, s. 142.

1

REG.

v

GOSSE.

[ *278 ]

{ *279 ]

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removal committee was constituted under the provisions of the
Act. Before the committee was appointed, there was a drain
or sewer *extending through part of the village of Ewell, for
more than 350 yards, into a brook running nearly at right angles
to it; and such drain had been used for carrying off the sewage
and refuse water from the houses on the west side of the street
in Ewell. The then surveyor of highways had enlarged this
drain, so as to carry off the sewage from divers of the houses
on both sides of the street. The brook into which the drain
discharged itself, after receiving the water therefrom, ran
through a public horse pond or watering place, much used by
farmers and others in the neighbourhood. The water of the
brook was also used by the inhabitants of the village for domestic
purposes. In the year 1859, the committee, in consequence of
numerous complaints being made, determined to make a new
sewer; and accordingly they did make a new one, running
alongside of and connected with the old sewer, which had been
made by the surveyor of highways; and also continued the two
together more than 1,000 yards beyond the point at which the
old sewer ended. By means of side drains a large number of
houses were enabled to discharge their refuse into the improved
sewer, and the inhabitants derived great benefit therefrom; but
William Hobman did not participate in that benefit, inasmuch
as his property was as much as a mile distant. The persons
who used the side drains paid for the making of them.

On 16th May, 1860, an application was made to the two
justices for an order upon the surveyors of highways, for the
payment of the sum of 5021. 4s. 3d., expended by the said com-
mittee. It appeared that the surveyors had that amount in
their hands, ready to be paid. No assessment of the houses or
buildings using the sewers *had been made; and the committee
alleged they were entitled to get the amount from the surveyors
of highways, in consequence of the expenditure having been in-
curred for the public benefit and advantage. The two justices

Mr. Badeley has said enough to satisfy us that this rule must be made absolute. The affidavits show clearly that the works which have been executed fall within the provisions of sect. 22 of the Act; and it follows that the fund pointed out by that section is the fund primarily chargeable with the expense of them. It is unnecessary to determine whether, if that fund

failed, the nuisances removal committee could, under sect. 7, resort to the highway rate to make up the deficit; for there is nothing to show us that recourse has been had in the first instance to the proper fund. It is further said that sect. 39 takes away the jurisdiction of this Court to issue the certiorari; but that section can apply only to cases in which the justices have jurisdiction. It cannot be said that they have jurisdiction *to make an order clearly contrary to the provisions of the Act; or that sect. 39 protects such an order when made.

Rule absolute for a certiorari.

MATTHEWS v. GIBBS.

(3 El. & El. 282-306; S. C. 30 L. J. Q. B. 55; 7 Jur. N. S. 186; 3 L. T. N. S.

551; 9 W. R. 200.)

Defendants, London merchants, by charter-party made between them and C., the master of the ship Planter, chartered that ship to bring a cargo of guano from Callao to England. The ship was, by the charterparty, consigned outwards to defendants' agents in South America; and freight at 70s. per ton was made payable on her arrival in England, deducting such advances on account of freight as charterers' agents might, as the charter-party empowered them, make to C. in the Pacific. The Planter arrived at Callao, loaded her cargo of guano, and set sail for England, defendants' agents having, previously to her sailing, made large advances to C. on account of freight. Soon after sailing she sprang a leak, which compelled her to put back to Callao, and she arrived there the second time, consigned to a firm independent of defendants or their agents. It was then found that she could not proceed on her voyage, and C., defendants' agents refusing to interfere, transshipped the cargo into another ship, the Alarm, to be forwarded to England. For this purpose a charter-party was entered into between plaintiff, the master and apparent owner of the Alarm, and C. in his own name; under which freight was made payable by the consignees, on ship's arrival in England, at 70s. per ton. Plaintiff then made out bills of lading, in which C. was named as shipper and defendants as consignees. At the date of this latter charter-party the current rate of freight at Callao was only 40s. per ton, and it was agreed between plaintiff and C. that plaintiff should pay the difference between that and the charter-party freight to C., but whether for C.'s benefit or that of his owners did not appear. The cargo arrived in England, in the Alarm; when plaintiff claimed from defendants the full freight of 70s. per ton; from which defendants, on the other hand, insisted on their right to deduct the advances made to C. by their agents at Callao. Defendants having paid the freight less the amount of such advances, plaintiff brought this action to recover that amount.

A verdict having been taken, by consent, for plaintiff, for this amount, leave being reserved to defendants to move to enter it for them, the Court to have power to draw inferences of fact from the above facts, which were proved at the trial: Held, making absolute a rule to enter the verdict for defendants: First, that the proper inference from the facts was that C. made the charter-party with the Alarm as agent for his owners and not for defendants; the agreement by plaintiff to return him part of the charter-party freight being a legitimate transaction in that view, but a gross fraud on defendants, to which plaintiff was a party, in the other. Secondly, that assuming C. to have made the said charter-party as defendants' ostensible agent, he had no implied authority, from the necessity of the case, on trans-shipping the cargo, to bind defendants to payment of a higher than the current rate of freight; and plaintiff had knowledge of that want of authority. Thirdly, that, apart from the Alarm charter-party, plaintiff had no