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if there be no such powers, the incorporation will be altogether exempt from audit under the statutes : but it cannot be said that this balance so obtained is not a rate, levy, or contribution raised, levied, collected, or disbursed for the relief of the poor, within the meaning given to poor ratein stat. 4 & 5 W. 4, c. 76, s. 109.

Even assuming the proceedings to have been defective, a certiorari should have, been sued out; the defendants cannot on this mandamus take advantage of the alleged defects; stat. 4 & 5 W. 4, c. 76, ss. 42, 95, 98, 105, 108: stat. 12 & 13 Vict. c. 13, ss. 8, 9, 13.(a)

Unthank (in the absence of Crowder), in reply.—The record shows that these proceedings are under stat. 7 & 8 Vict. c. 101; they cannot, then, be supported on the general act alone. The order should have required an account of money applicable to the relief of the poor within the limits : that could not have been evaded; for in obeying such a writ the Corporation must have shown what sum was so applicable. But according to the present form the auditor may disallow dock rates ; for whatever is to be accounted for he may disallow. [ALDERSON, B.-As regards such charges he can only see that they have been paid.] The Corporation has two districts, one more extensive than the other : the *423]

*maintenance of the poor affects the smaller district only; but the mandamus relates to the whole.

Cur. adv. vult. PARKE, B., now delivered the judgment of the Court.-In this case three objections have been taken. First: that the Poor Law Commissioners, under stat. 7 & 8 Vict. c. 101, s. 32, which authorizes them to combine" parishes into districts for the audit of accounts” (that is, to appoint what parishes and unions shall have their accounts audited and pay towards the salary of the auditor; for that is the meaning of “combine”), had no power to combine this Corporation as they have done, because it is not a corporation for the management of the poor only, but for other purposes also. Secondly: that, if they had this power, their order is informal and invalid. Thirdly: that, at all events,

the request by the auditor to account, and the mandamus also, requires more than the Corporation were bound to do, and, consequently, cannot be supported.

We are of opinion that no one of these objections is well founded.

The first objection depends on stat. 7 & 8 Vict. c. 101, s. 32; but, to ascertain the meaning of the words “parish” and “union" there used, it is necessary to refer to sect. 109 of stat. 4 & 5 W. 4, c. 76. This interpretation clause says the word parish' shall be construed to include any parish, city, borough, town, township, liberty, precinct, vill, village, hamlet, tithing, chapelry, or any other place, or division or district of a place, maintaining its own poor, whether parochial or extraparochial.” It is not necessary to say whether, if this stood alone, the

city of Bristol *would fall within it; perhaps it might not. But *424] the clause

goes on to say, “the word “union' shall be construed (a) On the point as to charges for criminal lunatics, Tomlinson was stopped by the Court,

to include any number of parishes united for any purpose whatever under the provisions of this act, or incorporated under” Gilbert's act, 22 Geo. 4, c. 83, " or incorporated for the relief or maintenance of the poor under any local act.” Strictly speaking, Bristol itself, certainly, is not incorporated under its local act for the management of the poor; nor, indeed, are any parishes incorporated under Gilbert's Act; for certain selected inhabitants only are incorporated. But Bristol is incorporated for the management of the poor under its local act, in the same sense in which parishes are so incorporated under Gilbert's act. Is Bristol, then, the less incorporated for this purpose, because the Corporation of the poor of the city have, under the local acts by which their functions are regulated, something else to do besides taking care of the poor? Stat. 7 W. 4 & 1 Vict. c. lxxxvi. recites (s. 1) that the Corporation have been “ constituted guardians of the poor" of the city and county; and authorizes them, in several clauses, to make rates for the support of the poor, and for various other purposes. (His lordship here referred to the clauses as to assessing and levying the several rates, and the form of assessment.) The object was that the rates referred to, instead of several, should all be included in one, as more convenient to levy, and less vexatious to the persons assessed. Under this act, then, there is one rate, out of which sums for the relief of the poor and for other purposes are to be paid. We think that the Corporation is not the less a corporation for the management of the poor, and is, therefore, still incorporated for the maintenance of the poor under a *local act; that, consequently, it is a “union" within stat. 4 & 5 W. 4, c. 76,

[*425 s. 109; and, therefore, that the Poor Law Commissioners had authority to combine the parishes of the city and county with other parishes and places for the audit of accounts.

The second question turns on the objection that the Commissioners, instead of combining the parishes under the management of the Corporation, have combined the Corporation itself, with the other members of the union. We think that what they have done is correct, substantially at all events. They have combined that body which has power to join in the election of the auditor, and is bound to contribute to his salary. It is unnecessary, therefore, to dispose of the last argument of Mr. Tomlinson, though we think there was great weight in it,--that the order is a valid and binding order until set aside.

On the remaining question we quite agree with the Court of Queen's Bench. There is but one rate, though ultimately applicable to different objects. In dealing with that rate, the Corporation act as a body having the care of the poor, but having also the duty of receiving and paying over moneys for other purposes. Until the auditor had ascertained how much money was raised and paid for these different purposes, he would not know how much was applicable to the relief of the poor, and could not call upon the Corporation to account for their disposal of what was

60 applicable. We think, therefore, that he was quite right in calling for an account in the terms stated by the return. As soon as he has got the accounts, and ascertained how much the Corporation have paid *426]

for other purposes than the relief of the poor, he will then *exer

cise his power of allowing or disallowing the payments made out of that portion of the fund which is applicable to the relief of the poor.

Judgment affirmed.(a) (a) The case in the Exchequer Chamber is reported by R. Hall, Esq.


(Error from the Queen's Bench.)

HOLFORD v. BAILEY, in Error. A declaration, reciting that defendant had been summoned to answer plaintiff in an action of

trespass, charged that defendant, with force and arms, broke and entered a fishery, to wit, the sole and exclusive fishery of plaintiff, in a certain part of a river then flowing and being over the soil of une F., and then fished for fish in the said fishery of plaintiff, and the fish of the said fishery of plaintiff, there found, and being in the said fishery, chased and disturbed :

Conclusion, contra pacem. Plaintiff having recovered on this count, Held, by the Court of Exchoquer Chamber, reversing the judgment of Q. B., (1.) That the words "sole and exclusive fishery” were, at any rate after verdict, equivalent to

“several" fishery. (2.) That the statement that the soil was in F. did not vitiate the count or render it necessary

for the plaintiff to deduco title from the owner of the fee. And, (3.) (Agreeing with Q. B.) that trespass lay for the injury described.

The declaration stated that the defendant had been summoned to answer the plaintiff in an action of trespass; and it contained four counts. The first was for breaking and entering, with force and arms, &c., a several fishery of plaintiff in the river Usk, in Brecknockshire. The second count charged that the defendant, to wit, on, &c., with force and arms, &c., broke and entered a certain other fishery, to wit, the sole and exclusive fishery of the plaintiff

, to wit, in the said river Usk, in a certain other part of the said river, then flowing and being over the soil of one Philip Francis, and adjacent to, &c., situate in the said county, and then fished for fish in the last-mentioned fishery of plaintiff, and the fisk, to *427] *wit, five salmon, &c., of the last-mentioned fishery of plaintiff

, there found, and being of great value, to wit, &c., then being in the last-mentioned fishery, then chased and disturbed. The declaration concluded: “and other wrongs," &c., “ against the peace," &c.

3 Ten pleas were pleaded, leading to issues of fact.

The plaintiff had a verdict on the issues relating to the second count. On other issues, disposing of the counts 1, 2, and 3, the verdict was for defendant. The Court of Queen's Bench arrested judgment on the second count.(a)

(a) Holford v. Bailey, 8 Q. B. 1000 (E. C. L. R. vol. 55).

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The plaintiff below brought error in the Exchequer Chamber. Joinder in error.

The case was argued in last Michaelmas vacation.(a)

Willes, for the plaintiff in error (plaintiff below).- Three questions arise: First, whether the words “sole and exclusive" are to be deemed, in this stage of the proceeding, sufficiently descriptive of a several fishery; secondly, whether trespass lies in respect of a several fishery; thirdly, whether, if it does not, this declaration may, after verdict, be taken to be a declaration in case. The Court below has decided the second question in the affirmative, but the first and third questions in the negative, and therefore has arrested the judgment. The judgment must be reversed, if either the first or the third question ought to be decided in the affirmative, unless the Court below was wrong in deciding the second question in the affirmative.

*First: the words o sole and exclusive" are, at any rate after verdict, sufficiently descriptive of a several fishery. Sole right of

[*428 a fishing, to the exclusion of the owner of the soil, is a correct definition of such a right. Before Magna Charta (6) the right to fish was, in the

a case of tide rivers, in the Crown; in other cases, it was in the owner of the soil: but the Crown or the landowner could grant the exclusive right to an individual: and so it is still, except that all public rivers. may now be fished in by the subjects of the realm, unless there was an exclusive user in the reign of Henry II. In no other way can an exclusive right of fishing, in one not the owner of the soil, originate: and such an origin clearly would create a several fishery. Therefore a fishery in one not the owner of the soil, which is exclusive, is several. The ancient cases are collected in Chitty on the Game Laws, p. 288. In Co. Lit. 4 b, it is said: “If a man be seised of a river, and by deed do

grant separalem piscariam in the same, and maketh livery of seisin secundum formam chartæ, the soil doth not pass, nor the water, for the grantor may take water there; and if the river become dry, he may take the benefit of the soil; for there passed to the grantee but a particular right, and the livery being made secundum formam chortæ, cannot enlarge the grant. For the same reason, if a man grant aquam suam, the soil shall not pass, but the piscary within the water passeth therewith.” This conveyance of the privilege without the soil is put by Coke as analogous to the conveyance of vestura terræ or herbagium terre. Again in Co. Lit. 122 a, it is said that “a man may prescribe to have separalem piscariam *in such a water, and the owner of the soil shall not fish there; but if he claim to have communiam piscarie, or liberam piscariam, the owner of the soil shall fish there."

(a) November 28th, 1848; before Wilde, C. J., COLTMAN, MAULE, and CRESSWELL, Js., and Parke, Rolfe, and Platt, Bs.; and 29th, before COLTMAN, MAULE, and CRESSWELL, Js., and PARKE, ALDERSON, Rolfe, and Platt, Bs. MAULE, J., and Alderson, B., left the Court during the reply, to attend Chambers. (6) 1 Stat. 9 H. 3. See c. 16, and 2 Inst. 30. VOL. XIII.-33

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In 2 Blackst. Com. 39, 40, there seems to be a confusion between a several fishery and a free fishery: but, as the passage stands in the later editions,(a) it is there correctly laid down that “ he that has a several fishery must also be (or at least derive his right from) the owner of the soil.” In Hargrave's note (7) to Co. Lit. 122 a, Blackstone's description of a several and a free fishery is commented upon; and the writer appears to come to the conclusion that the utmost that can be said is that a several fishery may perhaps be presumed to comprehend the soil, though it may be shown that they are separate; and that a free fishery is not exclusive. In 3 Kent's Comm. 410, 411, the same subject is discussed; and there it is suggested that a free fishery, as well as a several fishery, is exclusive; but that the former word applies to public navigable rivers, and the privilege is unaccompanied by property in the soil, whereas the latter is also applicable to a public navigable river, but is accompanied by ownership in the soil. The author suggests, further, that “the more easy and intelligible arrangement of the subject would seem to be, to divide the right of fishing into a right common to all, and a right exclusively in one or a few individuals." In truth, the word “free" is ambiguous, sometimes expressing the franchise of exclusion, as in the case of a free warren, and sometimes the franchise of admission, as in the case of a free port. It has been used in

both senses with respect to fisheries ; and this is the origin of the *430]

confusion in the books. But, whatever doubt there may be as to the word “free,” it is clear that, unless where it means “exclusive," it is not synonymous with “ several:" where it does so mean, it expresses the only quality of a several fishery which, as to the present question, is important. In The Duke of Somerset v. Fogwell, 5 B. & C. 875 (E. C. L. R. vol. 11), it seems to be concluded that there may be a several fishery in a navigable river without ownership of the soil, but that, ordinarily, the possession of a several fishery would imply a right to the soil, subject to proof to the contrary. At all events, after verdict the allegation of exclusiveness here is sufficient. In the judgment below it was suggested that the words o sole and exclusive" might be satisfied by a license for an hour excluding all other persons, which is assumed by the Court not to be a several fishery: but such a license, being for a time and not pro hâc vice, would require a deed and would pass an interest which would be a several fishery; Holms v. Seller, 3 Lev. 305, Hoskins v. Robins, 2 Saund. 324, 328.(6) Such an interest would be assignable; Muskett v. Hill, 5 New Ca. 694. WILDE, C. J.-What differ

as to this would there be between an hour and a thousand years?] None. The second count speaks of “& certain other fishery, to wit, the sole and exclusive fishery of the plaintiff." That shows a fishery which could not be other than several; if this be argu

(a) See Holford v. Bailey, 8 Q. B. 1006 (E. C. L. R. vol. 55).
() And see The Duke of Somerset v. Fogwell, 5 B. & C. 875 (E. C. L. R. Fol. 11).


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