wardens and overseers to prepare the lists, and when that is done their duty is complete. The services for which these fees are charged are not included in those enumerated in 7 & 8 Vict. c. 101. s. 60. [BLACKBURN, J.-How does the justices' clerk claim a fee?]

Under the 11 & 12 Vict. c. 43. s. 30 (2). A table of fees has been made out and approved under that section.

[BLACKBURN, J.-It would seem that the burden of proof is on the defendants, to shew that the Secretary of State is wrong.]

He has only power to revise the amount of the fees set out in the table; the section gives no power to create new fees. [QUAIN, J.-The strongest point is, that the fee charged is not for “ making out, preparing, printing and collecting the lists. BLACKBURN, J.-But for the 7 & 8 Vict. c. 101. s. 60, the fees would have been payable by the overseers out of their own pockets, if payable at all.]

Field and Sills, for the prosecution.— These fees are-First, properly chargeable by the justices' clerk. Second, properly payable by the overseers; and Third, properly payable out of the poor rate. First. The clerk is the first person set in motion by the legislature under the Juries Act, 1825-see ss. 4, 8.

[BLACKBURN, J.-But why should the overseers pay for what is done under ss. 9, 10? Do you say that at common law, whenever new work is thrown upon a justices' clerk, he is thereby entitled to a reasonable fee for doing it?]

Yes. The general principle is that work is not to be done for nothing. Before 11 & 12 Vict. c. 43 fees were given by 26 Geo. 2. c. 14. s. 1 (3), "such fees as the justices in quarter sessions should think proper."

[BLACKBURN, J.-It is clear that unless the fee be set down in the table, the clerk has no title; but is it equally clear that there was a right to set them down in the table?]

(3) This Act is still unrepealed, but would seem to be impliedly repealed by Jervis' Act, so far as the revising authority is concerned, which was given by it to the judges of assize. See also 57 Geo. 3. c. 91, which is te the same effect, and is also unrepealed.

In Veley v. Pertwee (4) it is said by Cockburn, C.J., "according to common right a man who is bound to perform the duties of an office and is liable to the expenses incidental to that office, is not bound to pay out of his own pocket the fees of officers for the performance of duties not connected with that office." Secondly. "Whoever wants the thing in respect of which the fee is made payable must pay the fee," said Coleridge, J., in The Queen v. Coles (5), and the principle was approved by Erle, J., in Wray v. Chapman (6). He then cited The Queen v. Stewart (7).

[BLACKBURN, J.-It sounds like a principle, and a just one, that whoever wants a thing done must pay for it. But how did the overseers want these things done?]

By section 9 the overseers are to fix a notice upon the church doors, they cannot do that without a previous notice from the justices' clerk. The word collecting" in section 60 of 7 & 8 Vict. c. 101, is probably written instead of correcting," by a clerical error.

[BLACKBURN, J.-They are not in the position of litigants, and it would seem that till the 7 & 8 Vict. c. 101. s. 60, the fees, if any, would be payable out of their own pockets.]

BLACKBURN, J.-There are three contentions on behalf of the auditor in this caseFirst, that the justices' clerk is not entitled to the amount disallowed. Second, that if he be entitled it is not the overseers who are to pay it; and third, that if the overseers are to pay it, they are not entitled to be repaid out of the poor rates. Upon the first point there arises an important question, which however it is not necessary to decide, viz. the question whether if fresh work be imposed on the justices' clerk he is not entitled to a reasonable fee for doing it. We give no opinion upon this point, for whether the fees were due to the clerk or not the overseers were not liable to pay them, inasmuch as the work for which the fees are charged was not done at their request.

By the precept in the schedule to the Juries Act, 1862 (25 & 26 Vict. c. 107), the overseers are required to make out the jury lists, and do the other things mentioned in that precept. When the precept is complied with the duty of the overseers is completed. From this point the justices' clerk has no doubt work to do, but he does it at the request of the justices, not by request of the overseers (8).

The third point raised was whether the fees, assuming them to be payable, must come out of the overseers' own pocket, or would be chargeable on the rates. I think that if it were once shewn that the fees were payable at all, there would be a very strong presumption that they were chargeable on the rates. But as we decide that the fees here are not within the wording of the 7 & 8 Vict. c. 101. s. 60, it is not necessary to decide this point.

(8) The precept concludes with the words, "and you are also further required to produce the said list at such petty sessions, and there to answer on oath such questions as shall be put to you by Her Majesty's justices of the peace there present touching the said list; and these several matters you are in nowise to omit, upon the peril that may ensue."

NEW SERIES, 43.-Q.B.

QUAIN, J.-I am of opinion that the justices' clerk is not entitled to the fees claimed. The overseers have done their duty when they have acted upon the notice sent to them; when the precept in the schedule to the Juries Act of 1825 (9), is looked to it will shew this. But the overseers are not interested in the duties of collecting. In no sense is the notice given, or the oath administered, at the request of the overseers; both these services are performed under the statute. It is not necessary to decide whether the imposition of new work authorises the taking of a new fee, the present case not being within the rule. I also think these services are not within section 60 of 7 & 8 Vict. c. 101. What " "collecting ' means I cannot say, probably "correcting" was intended, but the Parliamentary roll, which is conclusive, has the word "collecting." However that may be, the work was not done at the request of the overseers, and therefore was not payable out of the poor rate. Consequently the auditor was right in disallowing these fees, and this rule must be discharged.

Arbitration Common Law Procedure Act, 1854 (17 & 18 Vict. c. 125), s. 15— Enlarging Time for making Award-Submission prescribing Time within which Award is to be made.

An agreement of reference provided that the arbitrator should make his award on or before a day specified, or on or before any other day "not exceeding three months from the date of the agreement, to which the arbitrator should, by endorsement on the agree ment, from time to time enlarge the time for

(9) This does not materially differ from that in the Act of 1862.

G

making the award." On a day exceeding three months from the date of the agreement, a Judge's order was obtained enlarging the time for making the award two months: -Held, that upon the true construction of the Common Law Procedure Act, 1854, s. 15, the Judge had power to enlarge the time, notwithstanding the limit fixed by the parties.

By agreement dated the 22nd of March, 1872, certain matters in difference were referred to an arbitrator. The agreement further provided that the arbitrator should make his award on or before some day in April, or on or before any other day (not exceding three months from the date of the agreement) to which the arbitrator should, by endorsement on the agreement, from time to time, enlarge the time for making his award.

On the 26th of November, 1873, no award having been then made, a Judge's order was obtained by one of the parties enlarging the time for making the award for two months under the Common Law Procedure Act, 1854, s. 15 (1).

Gully now moved for a rule nisi to rescind the Judge's order.-There would be no objection to this order if the sub

(1) By the Common Law Procedure Act, 1854, 17 & 18 Vict. c. 125. s. 15, "The arbitrator acting under any such document (i.e. any document authorising a reference to arbitration) or compulsory order of reference as aforesaid, or under any award referring the order back, shall make his award under his hand, and (unless such document or order respectively shall contain a different limit of time) within three months after he shall have been appointed, and shall have entered on the reference, or shall have been called upon to act by a notice in writing from any party, but the parties may by consent in writing enlarge the term for making the award, and it shall be lawful for the Superior Court of which such submission document or order is or may be made a rule or order, or for any Judge thereof, for good cause to be stated in the rule or order for enlargement, from time to time to enlarge the term for making the award; and if no period be stated for the enlargement in such consent or order for enlargement, it shall be deemed to be an enlargement for one month; and in any case where an umpire shall have been appointed it shall be lawful for him to enter on the reference in lieu of the arbitrators, if the latter shall have allowed their time or extended time to expire without making an award, or shall have delivered to any party, or to the umpire, a notice in writing stating that they cannot agree."

mission had prescribed no time within which the award was to be made. But there is no authority to shew that the power of a Judge to extend the time may be exercised where the document fixes a limit. The Court will not disregard the intention of the parties, which they have expressed as clearly as possible.

PER CURIAM (2).-There will be no rule. The section applies to documents authorising a reference to arbitration without any exception as to documents prescribing a limit within which the award is to be made. Rule refused.

Indictment

Removal by CertiorariCosts of Prosecution-Prosecutor not a Party grieved"-5 & 6 W. & M. c. 11. s. 3-16 & 17 Vict. c. 30. s. 5.

By 16 & 17 Vict. c. 30. s. 5, after reciting that it is expedient to make further provision for preventing the vexatious removal of indictments into the Court of Queen's Bench, "whenever any writ of certiorari to remove an indictment into the said Court shall be awarded at the instance of a defendant or defendants, the recognisance now by law required to be entered into before the allowance of such writ shall contain the further provision following, that is to say, that the defendant or defendants, in case he or they shall be convicted, shall pay to the prosecutor his costs incurred subsequent to the removal of such indictment," &c.:-Held, that the prosecutor is entitled to his costs in the case of an indictment removed by certiorari under this section, though he is not "the party grieved or injured" to whom costs are limited by the previous Act, 5 & 6 W. & M. c. 11. 8. 3.

In this case an indictment for the obstruction of a highway had been removed

(2) Blackburn, J.; Quain, J.; and Archibald, J.

into this Court by certiorari. The defendant having been convicted, a side-bar rule was obtained to tax the prosecutor's costs under 16 & 17 Vict. c. 30. s. 5 (1). Edward Clarke now moved for a rule nisi to rescind the side-bar rule upon affidavits shewing that the prosecutor was not a person aggrieved by the obstruction of the highway. It is true that the Act 16 & 17 Vict. c. 30. s. 5, requires in the case of a certiorari to remove an indictment that a provision shall be inserted in the recognisances binding the defend

(1) By 5 & 6 W. & M. c. 11. s. 2, no indictment is to be removed at the instance of a defendant into the Court of Queen's Bench, unless the defendant enter into recognisances with two sureties to cause the issue to be tried at his own costs.

By section 3, "if the defendant prosecuting such writ of certiorari be convicted of the offence for which he was indicted, then the said Court of King's Bench shall give reasonable costs to the prosecutor, if he be the party grieved or injured, or be a justice of the peace, mayor, bailiff, constable, headborough, tytheman, churchwarden, or overseer of the poor or any other civil officer, who shall prosecute upon the account of any fact committed or done, that concerned him or them as officer or officers, to prosecute or present, which costs shall be taxed according to the course of the said Court, and the prosecutor, for the recovery of such costs, shall within ten days after demand made of the defendant, and refusal of

payment on oath, have an attachment granted against the defendant by the said Court for such his contempt; and the said recognisance shall not be discharged till the costs so taxed shall be paid."

By 16 & 17 Vict. c. 30. s. 5, after reciting that it is expedient to make further provision for preventing the vexatious removal of indictments into the Court of Queen's Bench, "whenever any writ of certiorari to remove an indictment into the said Court shall be awarded at the instance of a de

fendant or defendants, the recognisance now by

law required to be entered into before the allowance of such writ shall contain the further provision following, that is to say, that the defendant or defendants, in case he or they shall be convicted, shall pay to the prosecutor his costs incurred subsequent to the removal of such indictment; and whenever any such writ of certiorari shall be awarded at the instance of the prosecutor, the said prosecutor shall enter into a recognisance (to be acknowledged in like manner as is now required in cases of writs of certiorari, awarded at the instance of a defendant) with the condition following, that is to say, that the said prosecutor shall pay to the defendant or defendants in case he or they shall be acquitted, his or their costs incurred subsequent to such removal."

ant, in the event of his conviction, to pay costs. But this section must be read in conjunction with the previous Act, 5 & 6 W. & M. c. 11. s. 3, where the defendant prosecuting a certiorari is made liable upon conviction to pay costs, but only if the prosecutor be the party grieved or injured. This limitation is not expressly repealed by the later Act, which was not intended to create a fresh liability to costs. [BLACKBURN, J.-The later Act is quite general in its terms.]

It is contended that it was only intended to secure the payment of costs to which the defendant was already liable.

PER CURIAM (2).-There will be no rule. The Act 16 & 17 Vict. c. 30. s. 5, applies generally to indictments removed into this Court by certiorari. Rule refused.

The defendant was a livery stable-keeper, and had contracted with a builder to erect

part of his yard a building, of which the lower part was to be a shed intended for the reception of carriages, and the upper part to be used for other purposes. Two carriages and horses of the plaintiff were placed under the shed when the lower part of the building had been completed, but whilst the contractor's workmen were still on the upper floor. The building was blown down by a high wind, and the carriages were injured. It was not disputed that the builder was one whom a careful and prudent person might trust, and that the defendant had no notice of any negli gence on the contractor's part; but it was proposed to prove that, owing to the neglect of the contractor and his workmen, the building was, in fact, unskilfully built and

(2) Blackburn, J.; Quain, J.; and Archibald, J.

unsafe. The Judge, at the trial, ruled that the defendant's liability was that of an ordinary bailee for hire, and that all he was bound to do was to use ordinary care in the keeping of the plaintiff's carriages; and that if, in causing the shed to be built, he did all that a careful man would do, he would be exempt from liability for an event which was caused by the careless or improper conduct of the builder, of which the defendant had no notice :-Held, that the direction was right, for it could not reasonably be inferred that the defendant had warranted that the shed was fit for the purpose to which it was applied, inasmuch as this would charge him with a trust beyond what the nature of the thing put it in his power to perform, and although it was reasonable to require him to use due care to ascertain whether the building was secure, and by himself and his servants to take due care to maintain it in a proper state, it would be unreasonable to go further.

Rule nisi for a new trial on the ground of misdirection.

Holker and Shield shewed cause on Nov. 21.

Charles Russell and Lewers supported the rule.

[The facts and arguments are fully stated in the judgment.]

Cur. adv. vult.

BLACKBURN, J. (on Jan. 28, 1874), delivered the judgment of the Court (1).

This was a rule obtained to set aside a nonsuit, and have a new trial, against which cause was shewn in the last term before my brothers Mellor, Lush and myself. The trial took place at Durham before my brother Pollock.

The action was brought to recover damages for an injury to the plaintiff's carriages, occasioned by the fall of a building below which they were placed, and the question in the cause was whether the defendant was responsible for the injury so occasioned.

It appears from the learned Judge's notes that the defendant was a livery stable-keeper, and that he had contracted with a builder, not a servant

(1) Blackburn, J.; Mellor, J.; Lush, J.

of the defendant, but an independent contractor, to erect on part of his yard a building, of which the lower part was to be a shed, intended for the reception of carriages, and the upper part to be used for other purposes. The plaintiff brought his horses and two carriages to the defendant about the end of September, at which time the building was not completed so far as to permit both carriages to be placed under it. One of the plaintiff's carriages was housed in it, the other stood at first in the open yard. The plaintiff, finding this to be the case, complained at some time in October, and was told in substance, that as soon as the shed was complete the carriage should be put under cover, and that till then no charge would be made for it. The second carriage was placed under the shed in the last week in October, and from that time a charge was made for both carriages until the misfortune happened, which I will now mention.

In November, at a time when the lower part of the building had been completed, but whilst the contractor's workmen were still in the upper part of it, the building was blown down by a high wind, and the carriages were injured.

It was not disputed that the builder was one whom a careful and prudent person might trust, and that the defendant had no notice of any negligence on the contractor's part, but the plaintiff's counsel offered to prove that, owing to the neglect of the contractor and his workmen, the building was, in fact, unskilfully built and unsafe, and that this was the cause of the fall. The learned Judge then, as stated in his note, ruled "that defendant's liability is that of an ordinary bailee for hire, and that all he was bound to do was to use ordinary care in the keeping of the plaintiff's carriages; and that if, in causing the shed to be built, he did all that he did, by employing a builder, and otherwise, with such care as an ordinary careful man would use therein, he would be protected and would be exempt from liability for an event which was caused by the careless or improper conduct of the builder, of which the defendant had no notice." On this, the plaintiff's counsel declined to give evidence as to the shed