Q B.] OVERSEERS OF THE POOR OF HILTON, &c. strangers' cattle. Another duty of the field-reeves is to look after and take care of the cattle on the moor, and for this purpose they have shepherds, and by arrangement between the field-reeves and the trustees these shepherds assist the gamekeepers and watchers to preserve the game on the moor; a yearly sum being allowed for that purpose by the trustees towards the expense; the trustees appoint a gamekeeper, who is paid by them exclusively, and whose time is entirely devoted throughout the year to the preservation of the game on the moor. They also employ night and other watchers when necessary. In the grouse season the trustees issue tickets, now charged 201. each, which are licences to shoot, and enable the holders to sport on these moors for twenty days from the 12th Aug., and then (after an intermission of the month of September) for ten days in October. The trustees also let the stone and flag quarries on the moor, and publish a yearly account of their receipts and expenditure.

A copy of the last yearly account is hereunto annexed, and is to be taken as part of the facts stated and awarded. The trustees divide the balance in their hands triennially amongst the parties entitled who are the owners of ancient lands and tenements within the manor, the trustees themselves also participating as owners. The revenue derived from the sale of these tickets varies. The following is a statement of receipts from tickets during the last six years:

1859

1860

1861

1862 No licences issued in consequence of disease and scarcity of birds.

1863 1864

£708
504
630

787
800

(apps.) OVERSEERS OF BOWES (resps.) [Q. B.

E. James, Q. C. appeared for the resps., and argued that upon the facts no one was liable to be rated in respect of the profit made from licences to kill game, inasmuch as the right to the game itself is not attached to the possession of any portion of the land, it being in fact an incorporeal hereditament enjoyed by the trustees, and therefore does not enhance the value of the land itself.

Manisty, Q.C. (G. Bruce with him) appeared for the resps., and contended that the trustees were properly rated: Ewart v. Graham, 7 H. of L. Cas. 331; Greathead v. Muley, 3 M. & Gr. 139; Bruce v. Helliwell, 5 H. & N. 609;

The Overseers of Sunderland v. Sunderland Union, • 18 C. B., N. S., 531.

COCKBURN, C. J.-I am of opinion that our judgment should be for the resps. The right of shooting in this case is not a matter in respect of which the trustees, who are the persons in whom it has vested, are rateable. It appears to me that, from what has taken place under the Inclosure Act, the wastes of the manor over which the lord had the right of shooting have become vested in the commoners, and a certain portion of these wastes has become allotted to the lord of the manor in respect of his territorial rights. All this, however, was done with the express reservation that the right to the game should not be affected. Now I consider that this reservation was a statutory conveyance of the right of shooting to the lord. It has, indeed, been contended that the lord enjoys the right of shooting in common with the stint-owners. But it certainly cannot have been intended that every one of the stint-holders should have the right of sporting over the moor, for this would entirely nullify the reservation itself, which provides, "that the right of all manner of game upon the said lands shall not be in any way affected or interfered with by the inclosure." If, therefore, instead of confining the right to the trustees, the Legislature had extended it to each of the stint-owners, they would have lessened the value of the right and thereby have invalidated the provisions of the trustdeed. It was contended by Mr. Manisty that the reservation was inserted in order to protect any right of free-warren which might have been enjoyed by the lord; but I do not think that this was the case. The reservation is one that is almost always put into inclosure Acts, by which rights of common are converted into rights of ownership, and a portion of the soil is given to the lord. It is very common to reserve the right of shooting to the lord of the manor, and I think that this was all that was intended in the present case. It is, no doubt, true that if the right of shooting belonged to the lord of the manor, and he exercised that right himself, or let it out to tenants from whom he received rents, this would enlarge the rent and thereby properly indirectly increase the rate. But it is admitted The questions for the opinion of the court were, that a right which is incorporeal or in gross is not whether the profits shown by the annexed account assessable to the poor-rate. This, therefore, is the to be received and distributable by the trustees only question-Is the right of shooting an incorunder the trust (and not already included in the poreal hereditament? I think that the reservation valuation list, or agreed so to be included as before leaves the right of shooting where it was before, and stated) were rateable to the relief of the poor? and that it remains vested in the lord of the manor as it if so, whether the rate should be upon the trustees, would in an ordinary freeholder who had conveyed or on all or any of the owners or others in propor- away his land, reserving the right of shooting. It tion to their respective interests, or to the increased is, therefore, a right in the nature of an incorporeal value of their rateable hereditaments in the town-hereditament, and is not subject to the poor-rate. ship in consequence of such profits, or how otherwise? and the assessment committee of the Teesdale Union were to amend the valuation list of the rateable hereditaments in the said township of Bowes, or cause a supplemental or substituted valuation list of the rateable hereditaments in the said township be made in conformity with the decision of the

The quarries are included in the valuation list and rated to the relief of the poor, and so are the stints or pasture-gaits set out to freeholders; but the 361 stints awarded to the trustees do not appear to be included in the valuation list or to be rated. The resps., however, admit their rateability, and that the quarry, herbage, and cottage garden rents, and agree that they may be included in the valuation list, and that the list may be amended accordingly. Many of the owners of ancient lands entitled to participate in income derived from the trusts occupy their own lands and stints; others let their lands to tenants either together with, or separately from, the stints; but no sum is added either in the rate or valuation list to the rateable hereditaments of any owner or occupier in respect of such portion of the profits of the trust as arises from the licences to sport. It was agreed that the Act of the 20 Vict. c. v., the Inclosure Act of 1766, and the General Inclosure Act, should be referred to and used so far as they related to the case.

irt.

BLACKBURN, J.-I am entirely of the same opinion. In order to make the occupier of premises rateable to the poor-rate, it is necessary that he should be rated in respect of a subject-matter which would by itself be rateable. The subject-matter may certainly be enhanced by a thing in some way connected with its occupation. Now the question

Q. B.]

REG. v. FARRER AND ANOTHER (Justices of Dorsetshire).

Judgment for the resps.

Attorneys for the apps., Elsdale and Byrne.
Attorneys for the resps., Tyas and Harrison.

Saturday, May 26.

[Q. B. here is, whether this right of shooting is so con- | ownership of the land, and ought not to be taken as nected with the occupation of any rateable object increasing the amount of the rate. that it would enhance the occupation and be taken into account in estimating its value? This raises the whole question, whether the right of shooting has been severed from the rest of the property and has become a right in gross. If the facts were that the right of shooting was still attached to the land, and an attempt were made to reduce the rateable value of the soil by letting out the shooting to others, this would perhaps give rise to some nice questions of law, of which I need only say that they do not arise here, as I think that the Inclosure Act had the effect of severing the right of shooting from the rest of the property. By the 8 & 9 Vict. c. 118, s. 116, it is enacted that the right of the soil of and in all land which shall be converted into regulated pastures shall, subject to the right of the lord of the manor to all or any of the mines, minerals, stones, and other substrata where the same shall be reserved to him under this Act, and

to

the other rights given or reserved by this Act, and the award in the matter of such inclosure be vested in the persons who under the direction and determination of such award shall be the owners of the stints or rights of pasture therein in proportion to the shares or aliquot parts which such stints shall thereby be declared liable to of any rate under this Act as tenants in common." Therefore, as soon as the soil of the moor is converted into regular stints, it is vested in the stintowners, and as tenants in common they would under ordinary circumstances have the right of shooting. The Act, however, says that the soil is to vest subject to the rights given or reserved by the inclosure award, and we must therefore look at the award to see whether or not it has the effect of conveying the right of shooting to the stint-owners. I certainly do not think that there is anything in the reservation to show that it has this effect. The reservation gives notice that the right of shooting is reserved to those by whom it was before enjoyed. The words in the reservation were used, I think, in their popular sense, and meant that the right of shooting should belong to its former owner, but under a different title. As regards the point that the stint-holder received from the trust-fund part of the proceeds of the sporting licences, I am of opinion that that fact cannot be said to enhance the value of his occupation so as to make him

liable to an increased rate.

It

LUSH, J.-I am also of the same opinion. A right of shooting is not in itself the subject of a rate. can only be brought into account when it improves and enhances the value of the land to which it belongs. The question then which arises is this, is this right incident and appurtenant to the soil? That must depend upon the construction of the Inclosure Act. Before the inclosure the right of shooting was certainly incident to the ownership of the soil by the lord of the manor, but if the order embodied in the Act had the effect of severing that right from the soil it created an incorporeal hereditament. What is then the true meaning of the words in the order? Of this there cannot be any substantial doubt: it seems that there was a common over which a large number of persons had rights, and in whom it was intended to vest the surface of the soil, reserving to the lord of the manor some of his manorial and territorial rights. I have no doubt whatever that this was the intention of the order, nor have I any that the words of the order are capable of effectuating that intention. The words of the reservation indicate that the lord is to have the right of shooting notwithstanding that the surface of the soil has passed to others. That being so, the right of shooting has been severed from the

|

REG. v. FARRER AND ANOTHER (Justices of
Dorsetshire.)

Highway-Non-repair-Summons-Denial of road
being a highway—Jurisdiction of justices.

The power of justices under sect. 19 of the 25 & 26 Vict.
c. 61, to direct a bill of indictment to be preferred for the
non-repair of a highway only applies to cases where
the liability to repair an admitted highway is dis-
puted.

Where, therefore, upon the hearing of a summons for the
non-repair of a highway, the waywarden of the parish
admitted that it was out of repair, and did not dis-
pute the liability of his parish to repair it if it was in
fact a common highway, but denied that it was such
highway, which denial was made bona fide, and the
justices therefore refused to order a bill of indictment
to be preferred as having no jurisdiction to do so:
Held, that they were right.

This was a demurrer to a return to a mandamus.
The mandamus was directed to Olive William

Farrer, Esq., and the Rev. George Vallis Garland,
two of the justices of Dorsetshire, and recited that
two summonses had issued-one to the Highway
Board of the Wareham highway district, and the
other to Thomas Edward Dowden, the waywarden
of the parish of Bere Regis, on behalf of John W.
Carter, for the non-repair of a highway, and that
upon the hearing the said justices dismissed the
said summonses, and the mandamus commanded the
justices to hear the said summonses, or to direct a
habitants of the said parish for the non-repair of
bill of indictment to be preferred against the in-
the said highway.

To this there was a return setting out the proceedings upon the hearing of the said summonses, namely, that the road was called Hyde-road in the parish of Bere Regis; that it was admitted to be out of repair; that it was alleged by the complainant J. W. Carter, but denied by the waywarden, that the said road was a common highway; had then been a common highway, was not denied that the liability to repair the said road, if the same by the said waywarden on behalf of the said parish and J. W. Carter; that it was admittted that the above denial was made bonâ fide, and that the only question then before the justices on the hearing was whether the said road was a common highway; the return then proceeded as follows:

Thereupon evidence was tendered to support and prove that the said road was a common highway. We the said justices, on the said hearing, in pursuance of the 18th and 19th sections of the 25 & 26 Viet. c. 61, did hear and determine the matter of the said summonses respecting the state of the road, and the liability of the party charged to repair, but finding on the said hearing that the said summonses did not relate to an admitted highway, nor were in respect of any denial of a liability to repair the said road, as an admitted highway was then denied by the said waywarden on the behalf of the said parish of Bere Regis, did not direct a bill of indictment to be preferred, and the necessary witnesses in support thereof to be subpooned under the said 19th section, nor did we receive or hear the said evidence on behalf of the said J. W. Carter in support of the said road being such highway as aforesaid, as we were and are not as such justices directed or empowered in and by the said 19th section to hear any evidence upon or determine the question of a road being a highway, or to direct a bill of indictment to be preferred under the circumstances hereinbefore set forth, and where the part of a road being a highway is the only matter denied, but the liability to repair an admitted highway is not denied on behalf of the parish.

By the 25 & 26 Vict. c. 61 (Highway Act), s. 18

Q. B.]

REG. v. Farrer and another (Justices of Dorsetshire).

provisions are enacted for hearing complaints for the non-repair of highways, and by sect. 19 it is enacted that

When on the hearing of any such summons respecting the repair of any highway, the liability to repair is denied by the waywarden on behalf of his parish, or by any party charged therewith, the justices shall direct a bill of indictment to be preferred, and the necessary witnesses in support thereof to

be subpoenaed at the next assizes... against the inhabitants of the parish or the party charged therewith, for suffering and permitting the said highway to be out of repair, &c.

[Q. B.

which the magistrates may have heard upon the subject, what construction are we to put on the words duty, or obligation, or right, or rather a public liability to repair? I think the construction we must put upon them is, that it presupposes the existence of a highway, and it presupposes, therefore, an obligation or liability on the part of some one to repair it. But that is disputed on the part of the parish, upon the only ground on which such an obligation or liability can be disputed on the part Coleridge, Q. C. (H. James with him) appeared in of those who are called upon to do it, namely, either support of the demurrer, and contended that the because some corporation or person that is bound to return to the mandamus was bad, for that it was do it ratione tenure, or the road was not found to be the duty of the justices under the circumstances to set out with all the formalities—in all which cases have directed a bill of indictment to be preferred it would be proper to dispute the liability. Here for the non-repair of the road in question; and that it is quite plain there is no dispute on the part they should have gone into evidence to have ascer- of the parish as to the liability to repair this road if tained whether in fact the road was or was not a it be a highway; the only dispute is as to its being highway; that they should either have ordered an a highway. I think my brother Mellor gave a very indictment to be preferred, or have gone into evi- lucid and satisfactory explanation of the way in dence to have ascertained that the road was not in which the Legislature have proceeded in such cases fact a highway, and that so they had not juris- to make the prosecutor under the former Act prodiction. [COCKBURN, C. J.-The object of the Legis-ceed, and to make the parish liable for the costs, so lature seems to be to give the justices jurisdiction only as to protect the prosecutor. The prosecutor is where the road is an admitted highway.] The words entitled as one of the public, and on the part of the do not bear out that position. [BLACKBURN, J.- public, if it appear to him that a highway is out of It is rather absurd to require the justices to go into repair, to insist on its being repaired. Primâ facis evidence and try the fact of whether or not it is a he is perfectly right in coming upon the parish, on highway. It is the same in other inquiries. The whom the law casts the liability. If the parish jurisdiction of justices in many cases depends upon seek to get rid of that, it is reasonable and just that the existence of facts which it is necessary they the matter should be disputed at their expense. I should ascertain. They ought not in this case to can quite understand, therefore, when the Act of have acted upon a mere assertion. [BLACKBURN, J. Parliament gives the magistrates a summary juris-The great object of the Legislature was to give a diction to enforce the repair of a highway which is summary remedy for the repair of undisputed high- out of repair by the orders which they are authorised ways.] to make under the sections of these Acts of Parliament, that the Legislature should go on to say, "If

Reg. v. Arnold, 8 Ell. & Bla. 550;

Ex parte Bartlett, 30 L. J. 65, M. C.;

Williams v. Adams, 31 L. J. 109, M. C.; 5 L. T. this, being a highway, and it being out of repair,

Rep. N. S. 790;

Reg. v. Heanor, 6 Q. B. 745;

Reg. v. Johnson, 31 L. J. 109, M. C.

Maule, for the defts., argued that the return was good, for that the justices had jurisdiction to order an indictment where there is an admitted highway, and the only question is the liability to repair; that in the present case the defts. admitted their liability, if the road was a highway, but disputed its being such, which dispute was found to be bona fide, and that in such case the justices had no jurisdiction to proceed further, it being still open to the prosecution to prefer an indictment in the ordinary way; that the object of the Legislature was to promote speedy repairs, and not to give justices a jurisdiction to inquire whether a road is or is not a highway.

Coleridge, Q. C. was heard in reply.

COCKBURN, C. J.-I think the return to the mandamus is sufficient, and that therefore the demurrer to it must be overruled. I own I am of opinion that the legislation which we are called on to-day to consider is not intended to apply to the case of a disputed highway. I cannot think that it was the intention of the Legislature, in giving magistrates a summary jurisdiction to compel the proper parties to put highways into repair when they had put it out of repair, to substitute this summary jurisdiction of magistrates for that of a jury in respect of the trial of the question of whether the way was a highway or not. I cannot but think that this summary jurisdiction was intended to be confined to cases in which there was no dispute as to the fact of the way being a highway. Assume then that, in the case in question, the way is a highway, either being admitted to be so by the parties interested, or, if Mr. Coleridge's contention is right, having been found to be so by the evidence

and prima facie the parish against whom the proceeding is taken be liable to repair, and that liability is disputed on the ground that some one else is liable, and they be called upon by indictment, that the costs of that indictment shall fall on the parish seeking to get rid of the liability. The case of Reg. v. Heanor is an authority the other way, because the magistrates, if Mr. Coleridge is right, would have had jurisdiction in the first instance. We cannot say the magistrates have now jurisdiction, and therefore the costs of the indictment cannot be fixed on the parish at all, because by the verdict of the jury it is ascertained this is not a highway, and never had been a highway, and therefore they had no jurisdiction to order an indictment to be preferred. Besides that there is the case of Ex parte Bartlett, in which an opinion of Hill, J. is pronounced upon this very question; and I own I am always too happy to be able to fortify my own opinion which I am called upon to pronounce by anything that has fallen from that most eminent and learned judge. He says, "Sects. 94 and 95 of the old Act apply only to cases of admitted highway. In order to give the justices jurisdiction to make the order, the road must be a highway and it must be out of repair; the latter fact is to be ascertained by the justices in person or by sending a surveyor; and if the highway be found out of repair and the liability to repair is denied, the justices are then to order an indictment to be preferred. But if the two facts do not co-exist, the justices have no jurisdiction to direct an indictment." Then comes the question of liability to repair; if that only is disputed "the justices are then to order an indictment to be preferred;" that is, provided these facts co-exist, not otherwise. I think that is the true explanation of this legislation, applicable as much to one act as to the other; and consequently, under the circumstances of this case, the justices are not justified in ordering the indictment to be preferred. And

Q. B.]

REG. v. FARRER AND another (Justices of Dorsetshire).

therefore, in setting forth those facts in the return, though there may be parts as to which the magistrates may possibly be in error (on which I pronounce no opinion) in declining to exercise jurisdiction, I think on the face of the return they have stated quite sufficient to entitle them to our judgment.

BLACKBURN, J.-I am of the same opinion that the return is good, and that consequently our judgment must be given for the defts. The question really turns entirely upon the construction of three sections in the New Highway Act, 17, 18, and 19, but the construction of those sections depends greatly upon the construction of the 94th and 95th sections of the 5 & 6 Will. 4, which are not repealed, but which are in the same Act of Parliament, and the two Acts may be taken together. I very much agree with my Lord for the reasons he has given, and I am chiefly influenced in my view by looking to the object which the Legislature had in view. The object the Legislature had in view was this: when there are highways in a parish the public have a right to have those repaired except in the exceptional cases where they have been dedicated recently without a proper certificate, and no one is bound to repair, but the remedy at common law was by indicting the persons liable to repair. The main object of the Legislature was to say this: where there is a highway out of repair in a parish, there shall be a summary remedy by having the persons bound to repair indicted, and for that purpose they give the justices jurisdiction by sects. 94 and 95. Then the general rule of all such legislation is pointed out by Reg. v. Bartlett, that summary jurisdiction should be given where there are questions of title that come into question, and that is not given to the justices to decide upon unless there be something to indicate it was intended it should be so. It may very well be, and indeed was in a case which was cited of Williams v. Adams, that where the terms of the statute are such as to show that the question of title is involved, then what is the duty of the justices to be done as was done in that case, there is pointed out by Mr. Coleridge; the magistrates have entrusted to them a summary jurisdiction, but the general rule is, that they are not to have that summary jurisdiction on questions of right and title where that right and title is bona fide in dispute. In the particular enactment in question, according to the general principle which I have explained, the justices can only have jurisdiction to order repairs by persons liable, and they have not entrusted to them any liability of determining whether it was a highway at all. The liability to repair is involved in the right and title. The Legislature, in the 94th section of the 5 & 6 Will. 4, give the justices jurisdiction to convict persons liable if a road is out of repair, and to order them to repair it, and provides for the manner in which such repairs are to be done. Everything else will be left untouched, and upon the true construction of the statute, if there were nothing more, one would have said, if it is bona fide disputed that this is a highway, or that the party called upon is liable, these are matters of right, and the justices must hold their hands. Then at the end of the 94th section there comes this proviso: "Provided, nevertheless, that the said justices shall not have power to make such order as aforesaid." Whether that means the conviction as well as the order to repair I will not for the moment inquire; the grammatical meaning of the words would be the order only; the common sense meaning would be the order of conviction: but it is "provided, nevertheless, that the said justices shall not have power to make such order as aforesaid in any case where the duty or obligation of

[Q. B.

repairing the said highway comes in question." Now, no doubt the duty and obligation of repairing the highway, in one sense, may be said to come in question where it is said it is not a highway, and it would be a very strained meaning of the words to hold that the general duty and obligation is only where it is admitted to be a highway. No doubt it is denied it is a highway, and that nobody has got a duty to repair it; but that is a strained sense of the words. I think that the Legislature must be held to use the words in the sense where there is a duty and obligation to repair as distinct from the fact of it being out of repair. The proviso is put in as to the duty or obligation coming in question for the purpose of introducing the 95th section, which is, "If, on the hearing of any such summons respecting the repair of any highway, the duty or obligation of such repairs is denied by the surveyor, the justices may order." I think upon that, taking a view principally influenced by the object of the Legislature, the meaning of that is, where it is a highway with the duty and obligation denied, then, and then only, shall there be an indictment, and those are almost the words which my brother Hill used in the case referred to, and though the point did not exactly arise, and it is not a precise decision in point, yet Hill, J. in such cases is a very learned and accurate judge, and his dictum, though not an authority, is of great weight. Then comes the other question. The new Act altered the section, and the words are changed; instead of saying "duty and obligation to repair they say "liability to repair." Now, it is very easy to say that liability differs from duty and obligation. I think the meaning is the same.

MELLOR, J.—I am entirely of the same opinion. I think that the return does sufficiently show a good reason why the magistrates did not proceed to make the order desired. It certainly appears to me that, when we come to consider carefully the various sections which bear upon this matter, the object of the Legislature seems to have been this, with regard to highways, that where it shall be disputed to be a highway it must be left to the ordinary mode of enforcement by indictment; it is not as if the statute took away the power of any private prosecutor-there might be good reason for supposing in an ordinary case the magistrates might make inquiry as to that; but it is left to a private prosecutor in every case where it is disputed whether it be a highway or not, and he may prosecute in the ordinary course by indictment; but where the parish are prosecuting, and it be a highway, and admitting the prima facie liability to repair, and the parish being bound to repair all the highways in the parish, when they say, we agree this is a highway, and we should be bound to repair it whether or not, but we dispute the liability because this is a liability ratione tenure, or ratione, or on any other grounds, or that the formalities of the Highway Act are not complied with, or though it would be a highway that the parish would not be liable to repair, possibly that may be within the meaning of the words; at all events, it was intended to be confined to cases of that sort, because the magistrates are required to make an order. It might be just, no doubt, to say in every case they shall inquire, and order an indictment; but I think that is shown clearly not to have been the meaning which, as was decided by Reg. v. Heanor, was given to them under the former Act of Parliament. And I think that, so far from that being an authority, and instead of supporting Mr. Coleridge's argument, it bears the other way. That proceeded upon the ground that there never was any jurisdiction, because, in fact, the highway was not a highway. Now then, in this particular case the words, as my brother Blackburn has mentioned,

SEARLE (app.) v. REYNOLDS (resp.)