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BEVINS

v.

BIRD.

1865.

[310]

of the general public, acquire a right as against the general public to use stake-nets, contrary to the provision of this statute, which was passed for the general public benefit ?)

Kaye, for the respondent, was then called on :

The case does not find any right in all the Queen's subjects to fish there. And there was evidence from which the justices might infer a free fishery in gross in the respondent's family.

(BLACKBURN, J.: There cannot be a right in gross in the respondent's family at large, but only in them as individuals.)

The learned counsel then referred to Hale de Jure Maris, 12.

COCKBURN, Ch. J.:

There was no evidence of right to which the justices should have attended.

BLACKBURN, J.:

The true construction of the exception in sect. 11 is, that it only applies to individual rights of property belonging to individuals lawfully exercised at the time of the passing of the Act.

SHEE, J. concurred.

Case remitted to justices.

IN RE THE BROUGHTON LOCAL BOARD OF HEALTH. (12 L. T. N. S. 310; S. C. 29 J. P. 324.)

A local board of health for a district consisting of a parish comprising three townships came within the description set out in the 3rd subsection of s. 37 of the 21 & 22 Vict. c. 98 (the Local Government Act, 1858) (1), where no public works of paving, water supply and sewerage are established," and the local board levied a district highway rate for one of the townships:

Held, that they had no authority to do so, for that the highway rate could alone be levied over the whole district.

PHILBRICK showed cause against a rule obtained by Keane, Q.C., calling upon the Broughton Local Board of Health to show cause why a writ of certiorari should not issue to remove a certain highway rate or assessment made for the district of Castlethorpe, in the county of Lincoln, on or about the 10th October, with the view to its being quashed.

It appeared that the parish of Broughton, which comprised three townships of which Castlethorpe was one, was constituted a district under the Public Health Act, 1848 (11 & 12 Vict. c. 61), and that the highway rate in question was made for the township of Castlethorpe alone.

By sect. 117 the local board are constituted surveyors of the highways within the district.

(1) See now Public Health Act, 1875, ss. 211 (4), 216 (3).

In re

THE

LOCAL BOARD OF HEALTH.

By the Local Government Act, 1858 (21 & 22 Vict. c. 98), which is to be construed together with and deemed to form part of the BROUGHTON Public Health Act, 1848, it is recited in sect. 37, that doubts have arisen as to the rate out of which the repair of highways is to be provided for in districts under the Public Health Act, 1848, and it is then by such section enacted (inter alia), that "Where no public works of paving, water supply, and sewerage are established in the district, the repair of the highways in the district shall be provided for by a highway rate to be levied over the whole district by the local boards as surveyors of highways." The district in question came under this provision.

Philbrick now showed cause and contended, first, as by sect. 137 (1) of the Public Health Act, no order is to be removed by certiorari, this rule could not be granted.

(COCKBURN, Ch. J.: That section does not apply if the local board have acted without jurisdiction. If they have done anything irregularly which is nevertheless within their jurisdiction, the section would apply; but here it is said they have made a rate when they had no right to make it.)

Secondly, the rate is good, for the local board are not merely surveyors of the highways, but are something more, having great powers with reference to the streets and thoroughfares not possessed by surveyors of highways: Barber v. Jessop (2), Hanson v. The Epsom Local Board of Health (3).

Keane, Q.C., contended, in support of the rule, that the 3rd sub-section of sect. 37 of the 21 & 22 Vict. c. 98, was clear as to the power of the local board only to make a highway rate to be levied over the whole district.

COCKBURN, Ch. J.:

I think this rule should be made absolute. Upon looking at the original Public Health Act, 11 & 12 Vict. c. 63, in connection with the Local Government Act, it is clear that the local board of health have done that which they were not authorized to do. In some cases no doubt the local board have the power to divide their district, but they cannot divide it when it is a district of this description for the purpose of making separate highway rates. The 37th section is clear and positive, that where, as in this case, there are no public works of paving, water supply and sewerage in

(1) Now Public Health Act, 1875, s. 262.

R.R.-VOL. CXLIX.

(2) 108 R. R. 731 (1 H. & N. 578).
(3) 5 El. & Bl. 599.

38

In re
THE

BROUGHTON
LOCAL

BOARD OF
HEALTH.

the district, the repair of the highways in the district shall be provided for by a highway rate to be levied over the whole district. Here we have a positive provision applicable to this case.

BLACKBURN, J.:

I am of the same opinion. Under the first Act there was great difficulty in reconciling all the conflicting decisions; but under the subsequent statute the Legislature has laid down a positive and an express rule. The 3rd sub-section of the 37th section. directs that in such a case as this the rate shall be levied over the whole district.

SHEE, J.:

I am of the same opinion.

Rule absolute.

CHANCERY.

ALLAN v. SCOTT.

(12 L. T. N. S. 449–450.)

Trust money was so placed to a banking account that any of the trustees could draw out separately. One of them drew out money and bought a house as a residence for some of the cestuis que trust, but took a conveyance to himself alone. He then deposited the deeds with another Bank to secure his private balance, and afterwards became bankrupt. The co-trustees neglected to examine the banker's book for a long time after the purchase:

Held, that by reason of their negligence they were not entitled to priority over the security by deposit.

THOS. ALLAN, by his will dated 30th March, 1860, appointed his sons the plaintiff Richard Thomas Allan, and the defendant Matthew Allan, executors and trustees, and by a codicil appointed his son the plaintiff William Skilbeck Allan an executor and trustee of his will.

The testator died on the 24th April, 1860, leaving his wife and three daughters surviving him, and the said will and codicil were on the 22nd January, 1861, proved by all the executors.

The bill stated that the testator in his lifetime and up to his death kept a banking account with the Knaresborough and Claro Banking Company, and at the time of his death there was a balance of 1,1697. 11s. 9d. standing to his credit on such account.

On the 29th May, 1860, the plaintiffs and the defendant Matthew Allan, as executors and trustees, opened an account with the same Banking Company, and transferred the said balance of 1,169l. 11s. 9d., to the credit of their account, and they afterwards paid in to the credit of their account divers other sums belonging to the trust estate, and on the 15th August, 1861, there was standing to their credit a balance of 2,3891. 9s. 10d., which was appropriated by them to satisfy the bequests made by the will upon trust for the testator's widow and three daughters, and was left standing to the credit of the said account until a proper investment could be found.

Shortly before the 15th August, 1861, the widow and daughters, being in want of a house to reside in, the defendant Matthew Allan proposed to them that a dwelling-house at Boston Spa should be purchased for that purpose with part of the trust money. The widow and daughters inspected and approved of the house, and the defendant M. Allan agreed to purchase it. The banking account which had been opened by the plaintiffs and Matthew Allan as executors and trustees, was headed in the books of the Bank, "The executors of the late Thomas Allan," and the bill alleged that on the 15th August, 1861, the defendant M. Allan, without the authority or privity of the plaintiffs, drew a cheque for 120l. upon the Bank in his own name alone to pay the deposit on his purchase, describing

1865. Mar. 24, 25. April 25.

WOOD, V.-C.

[449]

ALLAN

v.

SCOTT.

it as drawn "on account of the executors of Thomas Allan, deceased," and adding after his signature the word "executor," and that the Bank, without the authority or privity of the plaintiffs, paid this cheque to the defendant M. Allan alone, and debited the amount as a payment made out of the said sum of 2,389l. 9s. 10d. on the joint account of the plaintiffs and the defendant Matthew Allan. In consequence of the absence of one of the vendors at the time when the said deposit was to have been paid, Matthew Allan did not pay the deposit before the completion of the purchase.

The bill also alleged that on the 30th September, 1861, M. Allan, without the knowledge or privity of the plaintiffs, drew another cheque in the same way for 600l., and the Bank paid this cheque to the defendant M. Allan alone, and debited it as they had done the cheque of 120l.; and that Matthew Allan, without the consent, knowledge, or privity of the plaintiffs received the 600l. and laid it out, together with the 120l., making 720l., in the purchase of the house at Boston Spa, and without the authority, knowledge, or privity of the plaintiffs or of the testator's widow and daughters, caused the house and premises to be conveyed to himself alone in fee; and that, upon the completion of the purchase, the conveyance and all the title-deeds relating to the house were delivered to him.

The bill alleged that Matthew Allan did not communicate to the plaintiffs his intention of making the purchase or of applying the 720l., or any part of the trust money, in or towards payment of the purchase-money, or of taking a conveyance of the house and premises; and that, shortly after the completion of the purchase, he deposited the conveyance and title-deeds with the Yorkshire Banking Company (in whose possession they still were), with a memorandum in writing, by way of equitable mortgage, as a security for any balance in which he might become indebted on his separate

account.

The bill also alleged that after M. Allan had drawn out the 7201, he (without the authority, knowledge, or privity of the plaintiffs) also drew out and applied to his own private purposes nearly the whole of the remainder of the balance standing to the credit of the account with the Knaresborough and Claro Banking Company, and became and was at the time of his bankruptcy indebted to the trust account in the sum of 1,900l. in respect of the sums so drawn and misapplied by him.

On the 12th March, 1863, Matthew Allan was declared bankrupt, and the defendant John Thos. Pearson, of Leeds, a defendant in the suit, was appointed creditors' assignee, and he by his answer disclaimed any beneficial interest.

The bill prayed that it might be declared that the sum of 7201.

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