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ROLLS.]

REG. v. BOYES.

[Q. B.

Ramsay purchased the fund for the benefit of herself | tenant for life was the "predecessor." I do not think and her children by her former husband. They cited that the circumstance here of the 6000l. having been Price v. Hathaway, 6 Madd. 304; Attorney-General paid by Lady Ramsay is material. The marriage was v. Baker, 4 Hurl. & N. 19; Roe v. Mitton, 2 Wils. 356; Newstead v. Searles, 1 Atk. 265; Dickenson v. Wright, 29 L. J. 150, Ex. ; Re Jenkinson, 24 Beav. 64.

a sufficiently valuable consideration. The real question is, whether, if the owner of an estate marries, and then agrees to settle a sum of money upon the relations of his wife, she is, as to that money, to be considered the

The Attorney-General (Sir R. Bethell, Q.C.) and Ilanson appeared for the Commissioners of Inland" predecessor" within the Act? It is to be observed Revenue, and contended that the arguments addressed to the court for the petitioners were merely "moral," and would, if allowed to prevail, lead to the wildest confusion. The original owner of the property was the true "predecessor" within the Act, and when Sir Thomas Ramsay agreed to settle the property of which the fund" in question was a part, he was the original owner of it. But the agreement in this case to settle it did not alter that ownership; and the settlement or payment afterwards made, only carried out the agreement. Therefore Sir Thomas, and not Lady Ramsay, was the predecessor in this case.

R. Palmer, Q.C. in reply.

that where a contract is made for a valuable consideration, by which property is to be settled, it does not belong to the person who induces the other to settle it, but remains in the possession of the owner, subject to the trusts of the settlement; and the word settlor" is there equivalent to the word "predecessor." If that is not so, the result would be singular, for then the wife's property would be considered to belong to the husband, and the husband's to the wife. Here, in consideration of certain moneys paid by the wife, and of the marriage, the husband agreed to settle a certain sum of money upon the wife for life, and then upon the children of that marriage, and in default of such children, upon the children of the wife by a former husband. The ultimate destination of the fund cannot affect the question who is the "predecessor" as to it. If in this case the ultimate trust had been in favour of Sir Thomas's children by Lady Ramsay, there could have been no doubt but that he would have been the "predecessor." But instead of this, he and she agreed that the fund should be limited to the relations of the wife. That, however, cannot alter the rights of the parties. I think the effect of the statute upon charges on estates is, that if such a charge, created in consideration of a marriage, be settled, or if the estate itself be then settled, whatever the trusts of the settlement may be, the “ predecessor" is the person to whom the property charged or settled belonged, and who made the settlement. I think that is the true view; and is so, without taking into consideration the motives which induced him to make the settlement. This qualification, however, and which is essential to the purpose, must be added, viz., that if the settlement gives to a person other than the settlor himself a power to dispose of the property settled-that is to say, if the settlement transfers the property settled to the donee of the power-the latter, when the power is exercised, is the disponer from whom the succession is derived, and was the "predecessor;" the successors in that case taking the property under the exercise of the power, and not under the trusts of the settlement. But here the petitioners take under the exercise of no power, but under the trusts of the settlement itself. The "predecessor," therefore, was in this case Sir Thomas, the settlor; and the duty must be 10 per cent. I do not consider it necessary to refer more particularly to the power in this case, because I have decided it without reference to the power. But in fact the power rather helps to confirm me in my view of this case; for if the power to appoint among the children had been exercised by Lady Ramsay, she would have been the predecessor; but as the petitioners take under the settlement, and not under the power, they take as strangers, and must pay the 10 per cent. If I had been compelled by the statute to give the commissioners the costs of the petition, I should have of course done so; but as that is not the case, I shall not give any costs to the Crown.

The MASTER of the ROLLS.-The question in this case is, what is the proper rate of succession duty payable under the provisions of the Succession Duty Act, the 16 & 17 Viet. c. 51, upon a sum of 58451. 58. 3d. Bank Annuities, now in court, and which the petitioners pray may be paid out to them? The | petitioners are a Mr. and Mrs. Batten, and the trustees of their marriage-settlement. Mrs. Batten is the daughter of the late Lady Ramsay, and the fund in question forms part of a sum of 10,000l. which was invested in Consols, in pursuance of a covenant by Sir Thomas Ramsay to that effect in his marriage-settle ment. The 58457. 58. 3d. Bank Annuities became, under the trusts of the settlement and on the death of Lady Ramsay, the property of Mrs. Batten; and the question is, whether Sir Thomas or Lady Ramsay is to be considered, as to these annuities, the "predecessor" within the 2nd section of the Succession Duties Act? If Sir Thomas Ramsay was the predecessor, the rate of duty would be 10 per cent.; but if Lady Ramsay was, then the rate of duty would be only 1 per cent. The second section of the Succession Duty Act is as follows:[His Honour read the section as above stated, and continued.] The argument on behalf of the petitioners, who, of course, are the "successors" in this case, was, that the predecessor need not be the person to whom the fund actually belonged in the first instance, but the person who either pays the consideration which induces, or who may induce another party to create the fund. That was illustrated in this way: if a person buys a charge on the estate of another, the purchaser in reality creates the fund; he, therefore, is the predecessor, and not the person who for value received originally charged his estate with the amount which he afterwards sells. So here, it was contended that Lady Ramsay, by her marriage with Sir Thomas Ramsay, by her then settling 6000l., and by the benefit she conferred on him when he released his power over the 10,000, purchased that fund for her children by her first husband. Lady Ramsay was the person who bought the property, who in reality created the fund. She, therefore, and not the person who originally advanced the 10,000l., was the predecessor. Lady Ramsay, it was also said, by the payment of the 6000l. to the trustees of the settlement made on her marriage with Sir Thomas, and by the gift to him of a life-interest therein induced him to create a charge in favour of her children by a former marriage. She, Reported by JOHN THOMPSON, T. W. SAUNDERS, and C. J. B. therefore, by so creating the fund became the predecessor as to it. Jenkinson's case, which was cited in the argument, was different from the present. There the tenant for life made an arrangement with the tenant in tail in remainder, to enable the tenant for life to settle a certain sum of money; and I there held that the

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COURT OF QUEEN'S BENCH.

HERTSLET, Esqrs., Barristers-at-Law.

Monday, May 27.
REG. v. BOYES.

Witness-Privilege on ground of tendency to criminate
-Pardon-Liability to answer—.
-Accomplice-Cor-

roboration.

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On the trial of an information against the deft., for bribery at a parliamentary election filed, by the Attorney-General, in pursuance of a resolution of the House of Commons, a person, alleged in the indictment to have been bribed, was called as a witness; he refused to answer any question, on the ground that the answer would tend to criminate him. A pardon under the Great Seal was then handed to the witness, but he still refused to answer, upon which the judge compelled him to answer, and on his evidence the deft. was convicted:

Held, that the pardon took away the privilege of the witness so far as any risk of prosecution at the suit of the Crown was concerned; and that, though the witness might still be liable to an impeachment by the House of Commons, notwithstanding the pardon, by reason of the 12 & 13 Will. 3, c. 2, yet that was so unlikely to happen that the witness could not be said to be in any real danger, and he was therefore rightly compelled to answer.

[Q. B.

this man to answer, the prosecution ought to drop." Pougher then deposed that he went to a room in a house in the borough, where the other witnesses went each upor. different times, and that there they saw newspapers and other things. The deft. was in the room conversing with them, and they went from thence into another room, where a man gave them, as runners or watchers, or officers of that kind, 1., in some cases 21., and it was stated that the 1. was for the service for so many days, or the 27. if they were required for more days. That was the species of bribery that was proved in these cases. It was contended by the deft.'s counsel, that there was no corroboration of the witness's evidence, and that he being in the nature of an accomplice, the learned judge ought to have directed the jury not to act upon his evidence alone, and to acquit the prisoner. In the summing up Martin, B. thus commented upon the evidence: "If that man's evidence was true, this was the very morning of the election, he went there and saw the deft.; To entitle a witness to the privilege of not answering a he was desired to go into the room, and after saying, question as tending to criminate him, the court mustNow, my man, is that thou?' and 'I said, of course see, from the circumstances of the case and the it was;' he goes into a room, heard a voice saying nature of the evidence which the witness is called to 'two.' That is followed up by the two sovereigns give, that there is reasonable ground to apprehend being put into his hands. He immediately gets into a danger to the witness from his being compelled to cab and goes and polls for Walters. Now you must answer. If the fact of the witness being in danger ask yourselves whether you believe that the two be once made to appear, great latitude should be sovereigns were given to the man for his vote, and allowed to him in judging of the effect of any parti- whether you believe the deft. was concerned in the cular question. The danger to be apprehended must matter, and whether it was done with his authority as be real and appreciable, with reference to the ordi- part of a transaction in which he was engaged. Assume nary operation of law, in the ordinary course of for the purpose of the present discussion that this man. things, and not a danger of an imaginary cha- was speaking the truth. Is there any law which proracter, having reference to some barely possible con- hibits a jury from believing a man who (it must be tingency. assumed for the sake of the argument) spoke the truth simply because he is not corroborated? I know of none. I know of no rule of law myself, but there is a rule of practice which has become so hallowed as to be deserving of respect; I believe these are the very words of Lord Abinger, it deserves to have all the reverence of the law. This case is distinguishable from that cited by the counsel for the deft., for they were there accessories properly so called, and all the persons were concerned in the same offence in which they came to give evidence against this man. In this particular case it is not so, because all of these cases are separately gone into, and it is not one and the same offence; and if you think that all these witnesses have spoken the truth, then it is clear that each case is clear and separate; each person giving money is a distinct offence. I have endeavoured as far as I can to explain to you these matters that have occurred in this case. I own I think also that that is a very important point, and that it may be very doubtful whether or not the evidence in this case will be found to be of that corroborative character which the law requires."

Information filed by the Attorney-General against the deft. for bribery committed at the parliamentary election for the borough of Beverley, Yorkshire, in April 1859.

The information contained eight counts, each charging a distinct act of bribery to different voters. The third count, upon which alone a verdict of guilty was found, charged the deft. with having given a bribe to a voter named John Pougher.

The trial took place at the Yorkshire summer assizes 1860, before Martin, B., and the jury thought the evidence in support of all the other counts but the third insufficient. In support of the third count John Pougher, the voter bribed, was called as a witness, and the learned judge considered it to be his duty to tell him that he was not bound to answer, if by answering he would criminate himself. The witness declined to answer the questions. Upon that the Solicitor-General put his hands into a blue bag which was lying before him and produced a document, which he handed to the witness, and said, "There is your pardon." The man looked at it and said, "What have done to deserve a pardon?" The learned judge, acting upon the authority of two cases which he had before him, considering that he was justified in so acting, said, "I still tell you, if you object to answer the questions, you need not do so." The Solicitor-General contended that he could compel him to answer. Martin, B. said, "I do not like to do that; it is a very serious responsibility, because if I tell him so to do and he refuses, I shall send him to goal; and to act in so summary a way seems to me very undesirable; cannot, I do not think 1 ought to do it. I believe that he is not compellable to answer, but I will consult Wilde, B." Having consulted Wilde, B., Martin, B. said that he entertained likewise a strong doubt, but under the circumstances he recommended him, and he should adopt that view, to compel him to answer. "If I am wrong, it must be perfectly understood again by the Solicitor-General that the court is to set me right, and if I am wrong in compelling |

The only witnesses called were the voters alleged to have been bribed, each of whom deposed to a separate act of bribery under similar circumstances and about the same time. The same course was pursued as to each of these witnesses in respect to their pardon, and being compelled to answer as in John Pougher's case. It was then arranged that, if the two points or either of them should. be disposed of in favour of the deft., a nolle prosequi was to be entered, and that for the purpose of disposing of these points the Court of Q. B. should be in the same position as the judge, and consider whether the judge ought to have told the jury to acquit. The jury returned a verdict of guilty on the third count only.

Nov. 13.-Edward James (Price and T. Jones with him) moved for a new trial on the ground, first. that the judge was wrong in compelling the witness Pougher to answer and in receiving the answers so ob

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tained; secondly, that there was no corroborative evidence of Pougher's testimony. Suppose the judge was wrong in compelling the witness to answer, and in receiving the answers so obtained.

HILL, J.-Is it a question of improperly admitting evidence? The evidence is proper; the evidence is admissible according to all the rules of law; but there is a privilege in the witness (it may or may not be so) which only appertains to him and does not appertain to the party. Suppose that the witness was perfectly willing, the party could not object, and say, "You are not to answer because you will criminate yourself." He might say, "No; the interests of truth and justice are paramount, and I will give the evidence." The judge might say, "No; I will not allow you that privilege." That is something about which the witness can complain, but the party cannot. The question has arisen in a case where an attorney is asked to disclose that which his professional duty would prevent his disclosing. He is willing to waive it, and the client is willing to waive it. The party in the suit cannot interpose and say he will not have it.

James.-This is a case peculiar in its circumstances. The learned judge, if it had not been thoroughly consented to by the Crown that the deft. was to have the benefit, although there may have been no case in point on this doubtful question, would not have compelled the witness to answer the questions, and the deft. could not have been convicted. In Rex v. Reading, 7 St. Tr. 296, it was held that the witness was privileged from answering questions respecting the commission of an offence, although he had received a pardon. And by the 12 & 13 Will. 3, c. 2, it is provided that no pardon under the Great Seal shall be pleadable to an impeachment by the Commons in Parliament. In this case the prosecution was instituted in pursuance of a resolution of the House of Commons. Secondly, there was no corroborative evidence of Pougher's testimony, and the judge ought to have directed the jury not to act upon it. There exists a course of practice in the administration of the criminal law of this country, that a man cannot be found guilty on the simple evidence of an accessory, and it is put upon the principle that if you allow a man who comes forward and states he is guilty of a crime to give evidence against another, you enable a guilty person to come forward and charge an innocent person, and upon his simple statement to convict him. A practice has arisen and been in force for a considerable time, that a man cannot be convicted upon the evidence of an accessory, except there is some corroboration of it. In this case there was no corroboration of any of the witnesses within the true spirit of this rule. At the trial the judge should have adopted the ordinary course, and have told or directed the jury that, as there was no corroborative evidence, they ought not to act upon the evidence of the witness. COCKBURN, C.J.-If he told them the practice was generally not to act on the evidence of an accomplice without being confirmed, but if the evidence made out to their minds that he was speaking the truth, they ought to believe him. I think his direction was right. I protest against its being the duty of the judge to direct the jury to acquit because the evidence of an accomplice is uncorroborated.

WIGHTMAN, J.-The law does not of necessity require any corroboration.

James.-The subject is discussed in 1 Phillips on Evidence, and the various cases commented upon, and at page 101 it is said: "On a review of the cases above cited, the result that may be deduced from them seems to be, that, on the trial of a prisoner against whom an accomplice appears as a witness, there should be (in order to warrant a judge in advising a jury to give credit to such a witness, and to warrant the jury in convicting) some confirmatory evidence that is proof independent of the evidence of

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the accomplice, from which it may be reasonably inferred that the prisoner was concerned with the accomplice in the commission of the crime."

COCKBURN, CJ.-It is stated very well in Taylor on Evidence, 796: "The degree of credit which ought to be given to the testimony of an accomplice is a matter exclusively within the province of the jury. It has sometimes been said they ought not to believe him unless his evidence is corroborated by other evidence, and without doubt great caution in weighing such testimony is dictated by prudence and reason. But no positive rule of law exists upon the subject, and the jury may, if they please, act upon the evidence of an accomplice, even in a capital case, without any confirmation of his statement. It is true that judges in their discretion will advise a jury not to convict a prisoner upon the testimony of an accomplice alone, and without corroboration, and the practice of giving such advice is now so general that its omission would be deemed a neglect of duty on the part of the judge. Considering too the respect which is always paid by the jury to this advice from the bench, it may be regarded as the settled course of practice not to convict a prisoner, except under very special circumstances, upon the sole and uncorroborated testimony of an accomplice. The judges do not, in such cases, withdraw the cause from the jury by positive directions to acquit, but only advise them not to give credit to the testimony." I think that is a fair exposition of what the present practice is. We think that he ought not to have told the jury to acquit if the witness was uncorroborated.

The COURT, after consulting Martin, B., granted a rule nisi on both grounds.

The Solicitor-General (Sir W.; Atherton), Monk and Cleasby showed cause against the rule, and Edward James, Price and T. Jones supported it (Feb. 12 and 13, 1861, at the sittings after Hilary Term). The Court discharged the rule so far as related to the. want of corroboration of the witness Pougher, and directed that the other point should be argued in the following Easter Term by one counsel on each side.

CROMPTON, J.-This rule was moved for on one ground that there was no corroboration of the witness Pougher. It may be a question whether Pougher was an accomplice of the deft.'s; but, treating him as an accomplice, the question is, was the judge warranted in the direction he gave to the jury? The law is laid down correctly in Reg. v. Stubbs, 1 Dears. C. C. 555, by Jervis, C.J.: "It is not a rule of law that an accomplice must be confirmed in order to render a conviction valid, and it is the duty of the judge to tell the jury that they may, if they please, act on the unconfirmed testimony of an accomplice. It is a rule of practice, and that only, and it is usual in practice, for the judge to advise the jury not to convict on the testimony of an accomplice alone, and juries generally attend to the direction of the judge, and require confirmation." To my mind, there was fully sufficient corroboration to warrant the verdict of the jury. It is not necessary that the corroboration should be as to the very facts stated by the witness. What corroboration is sufficient may depend on a variety of circumstances.

The rest of the Court concurred.

April 25.-Cleasby, for the Crown, argued the point reserved against the rule, and Edward James supported the rule.

Authorities cited:-Tayl. Ev. 1174; The People v. Mather, 4 Wendell's New York Rep. 254; 4 Bl. Com. 259; 4 Inst. 22-3; Com. Dig. Parl. L. 28 to 40; Seld. Jud. Parl. 36; Hallam's Engl. cap. 12, s. 2; Vin. Abr. E. 2; Fisher v. Ronalds, 12 C. B. 762; R. v. Lord Shaftesbury; 3 Inst. 236; 7 Com. Dig. tit. "Pardon," B.; 9 & 10 Will. 3, c. 32. Cur. adv. vult.

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TOWNSEND v. READ.

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our opinion, bound to insist on a witness answering, unless he is satisfied that the answer will tend to put the witness in peril. Further than this, we are of opinion that the danger to be apprehended must be real and appreciable with reference to the ordinary operation of law in the ordinary course of things, not a danger of an imaginary and unsubstantial character, having reference to some probable that no reasonable man would suffer it to influence his conduct. We think that a merely remote and naked possibility out of the ordinary course of the law, and such as no reasonable man would be affected by, should not be suffered to obstruct the administration of justice. The object of the law is to afford to a party called upon to give evidence in a proceeding inter alios, protection against being brought by means of his own evidence within the penalties of the law. But it would be to convert a salutary protection into a means of abuse if it were to be held that a mere imaginary possibility of danger, however remote and improbable, was sufficient to justify the withholding of evidence essential to the ends of justice. Now, in the

COCKBURN, C. J.-This case comes before us under [ called as a witness to the privilege of silence, the court peculiar circumstances. On the trial of the deft. on must see, from the circumstances of the case and the an information by the Attorney-General for bribery, a nature of the evidence which the witness is called to witness who was called to prove the fact of his having give, that there is reasonable ground to apprehend received a bribe from the deft., objected to give evi- danger to the witness from his being compelled to dence, on the ground that the effect of the evidence he answer. Indeed, we quite agree that if the fact of the was called upon to give would be to criminate himself. witness being in danger be once made to appear, great Thereupon the counsel for the Crown handed in a latitude should be allowed to him in judging for himpardon under the Great Seal to the witness, who self of the effect of any particular question, there accepted it. The witness, however, still objected to being no doubt, as observed by Alderson, B. in Osborne give evidence, and the learned judge who presided at v. The London Dock Company, that a question which the trial, entertaining a doubt as to whether the wit- might appear at first sight a very innocent one, might, ness could be properly compelled to answer, notwith-by affording a link in a chain of evidence, become the standing the pardon, an arrangement was come to means of bringing home an offence to the party between the counsel on both sides, with the sanc-answering. Subject to this reservation, a judge is, in tion of the judge, that the witness should be directed to answer, but that the opinion of this court should be taken as to whether the privilege of the witness remained, notwithstanding the pardon, the counsel for the Crown undertaking, in the event of the court holding in the affirmative, to enter a nolle prosequi if the deft. should be convicted. We think it necessary to protest against a repetition on any future occasion of a proceeding which we believe to be wholly unpre-extraordinary and barely possible contingency, so imcedented, it appearing to us inconvenient and unbecoming that this court should be called upon to pronounce a judgment which it is without authority to enforce. It is perhaps to be regretted that under such circumstances a rule nisi should have been granted. Probably, had the rule nisi for a new trial been moved | for on this ground alone, we should have refused the rule; but the rule having been moved for on other grounds as well as on this, it was somewhat improvidently allowed on this ground also. Now, however, the matter having been discussed on a rule granted by us, we think it best to pronounce our opinion on the point submitted to us, but we are anxious to protect ourselves against the present proceeding being drawn into a precedent or adopted on any future occa-present case, no one seriously supposes that the witness sion. Upon the first argument we held that the pardon took away the privilege of the witness, 80 far as regarded any risk of prosecution at the suit of the Crown; but it was objected that a pardon was no protection against an impeachment by the Commons in Parliament, and on this point the case was argued before us in the last term. The question on which our opinion is now required is, whether the enactment of the third section of the Act of Settlement, the 12 & 13 Will. 3, c. 2, "that no pardon under the Great Seal shall be pleadable to an impeachment by the Commons in Parliament," is a sufficient reason for holding that the privilege of the witness still existed in this case, on the ground that the witness, though protected by the pardon against every other form of prosecution, might possibly be subject to parliamentary impeachment. In support of this proposition it was urged on behalf of the deft. that bribery at the election of members to serve in Parliament being a matter in which the House of Commons would be likely to take a peculiar interest, as immediately affecting its own privileges, it was not impossible that if other remedies proved ineffectual, proceedings by impeachment might be resorted to. was also contended that a bare possibility of legal peril was sufficient to entitle a witness to protection; nay, further, that the witness was the sole judge as to whether his evidence would bring him into danger of the law, and that the statement of his belief to that effect, if not manifestly made mala fide, would be received as conclusive. With the latter of these propositions we are altogether unable to concur. Upon review of the authorities, we are clearly of opinion that the view of the law propounded by Lord Wensleydale in Osborne v. The London Dock Company, 10 Ex. 701, and acted upon by Stuart, V.C. in Sidebottom v. Adkins, 3 Jur. N.S. 631 is the correct one, and that to entitle a party |

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runs the slightest risk of an impeachment by the House of Commons. No instance of such a proceeding in the,unhappily, too numerous cases of bribery which have engaged the attention of the House of Commons has ever occurred, or, so far as we are aware, has ever been thought of. To suppose that such a proceeding would be applied to the case of this witness would be simply ridiculous, more especially as the proceeding by information was undertaken by the Attorney-General by the direction of the House itself, and it would therefore be contrary to all justice to treat the pardon provided in the interest of the prosecution to insure the evidence of the witness as a nullity, and to subject him to a proceeding by impeachment. It appears to us, therefore, that the witness in this case was not in a rational point of view in any the slightest real danger from the evidence he was called upon to give when protected by the pardon from all ordinary legal proceedings, and that it was therefore the duty of the presiding judge to compel him to answer. It follows that, in our opinion, the law officers of the Crown are not bound to enter a nolle prosequi in favour of the deft. Rule discharged.

COURT OF COMMON BENCH. Reported by DANIEL THOMAS EVANS and W. MAYD, Esqrs.,

Barristers-at-Law.

May 15 and July 8.

TOWNSEND (app.) v. READ (resp.) Surveyor's accounts-Allowance of law expenses by justices sitting at special sessions-5 & 6 Will. 4, c. 50, s. 111.

By sect. 111 of 5 & 6 Will. 4, c. 50, it is enacted that if the inhabitants of any parish shall agree at a vestry to defend any indictment, &c., or to defend any appeal, it shall and may be lawful for the sur

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TOWNSEND v. Read.

veyor of such parish to charge in his account the reasonable expenses incurred in defending such appeal after the same shall have been agreed to by such inhabitants at a vestry "and" allowed by two justices of the peace within the division where such highway shall be, which expenses, when so agreed to or " allowed, shall be paid, &c. : Held, that when such expenses had been agreed to by the inhabitants at a vestry, it was not necessary, under sect. 111, that they should also be allowed by two justices, and that the word "and" before "allowed" in the early part of the section should be read "or." 29

This was a case stated by the justices of Wilts, which was sent back by an order of this court, made on May 11th (vide 4 L. T. Rep. N. S. 447), to be amended.

Case, as originally stated for the opinion of the

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Coplestone Townsend, an inhabitant of Swindon,
against such account, and having heard such com-
plaint and examined William Read the surveyor on
oath, and having taken the whole of such complaint
and objections to such account made by the said James
Coplestone Townsend, to order that the sum of
15. for law expenses of Henry Kinneir, a solicitor, as
per bill, be disallowed, and be struck out of such
account, leaving a balance of 1077. 13s. 2d. due to the
said surveyor. Dated 24th May 1860."
The app
contended that we were wrong in point of law, inas-
much that the said sum of 1057. 12s. 2d. having been
objected to by him as an illegal payment made by the
resp. out of the highway-rates of the parish as such
surveyor, we should upon the verification of such
accounts have made an order that that specific sum
should have been allowed, as the app. alleged that he
might then have claimed a right of appeal against such
allowance, as an order made by justices. Whereupon
the app. asks the opinion of the Court of C. P.:
First, whether under the circumstances stated, the sum
of 1057. 12s. 2d. ought to have been allowed or dis-
allowed by us; secondly, whether (if the court should
be of opinion that the sum of 105l. 12s. 2d. ought to
have been allowed) the aforesaid verification of such
surveyor's account by us made is a good and sufficient
order and allowance for that purpose.
Amended case.

On the 25th March 1859 the resp. was, by the inhabitants of the said parish, again elected, and he was duly appointed as such surveyor. On the 29th March 1860 the resp., as such surveyor, made up and signed his accounts for the past year, and laid them before the parishioners in vestry assembled; and We, the undersigned, two justices of the county of afterwards, on the same day, it being a special ses-Wilts, and who granted a case on the 24th May 1860 sions for the purposes of the highways for the petty division of Swindon, in which the said parish of Swindon is situate, the said resp. laid the same accounts before us; and thereat, at the time of the verification of such accounts, the app., being a person chargeable to the highway of the said parish, made his complaint to us against the surveyor, and we heard such complaint, and we examined the resp. upon oath, and such complaint on the said special session was by us adjourned from time to time unto this day.

for the opinion of this court, made on the 11th day of May now instant, ordered to be remitted to us to be amended, by stating, first, the nature of the law proceedings for which the sum objected to was incurred; secondly, the objections taken by the app. As to the first point, we state as to the nature of the law proceedings: It appears to us that the whole of such bill of costs was incurred in respect of proceedings arising out of matters of appeal to the quarter sessions of Wilts, made by Messrs. Barnes, Freeman and WoolThe app. objected to sundry items in the resp.'s ford, inhabitants of the parish of Swindon, consequent account, and amongst them were the sums of 15. on their having been assessed to a highway-rate of the and 1057. 12s. 2d. We, acting under 5 & 6 Will. 4, parish of Swindon, dated the 9th day of June 1858; c. 50, s. 44, heard the complaint of the app., and ex- and the charges are arranged in such bill under amined the resp. on oath. Upon such examination we separate headings therein; and, as to one part disallowed the said sum of 157., but as regarded the thereof, they appear to commence with the first sum of 1057. 128. 2d., it appeared to have been in- item of the date of the 30th Oct. 1858, as the resp.'s curred by the resp., as such surveyor, in law proceed- costs of appeal from the quarter sessions against a ings under sanction of the inhabitants of the parish of highway rate, such appeal appearing to have been on a Swindon in vestry assembled; and the bill of the case stated from the quarter sessions for the Court of solicitor for the resp., by which the said sum of Q. B.; other parts of the bill appear to relate as to 105. 128. 2d. was incurred, was duly taxed by the costs of appeal by Messrs. Freeman, Woolford and clerk of the peace of the county of Wilts at that sum. Barnes, to quarter sessions of Wilts; and the remainThe app. contended before us, that under 5 & 6 ing portion of the bill" as to proceedings taken before Will. 4, c. 50, s. 111, the resp. was only entitled to justices in petty sessions at Swindon, and as to enforchave charged that sum of 1057. 128. 2d. in his ac-ing the payment of costs in the above appeals." We count, after the same should have been agreed to by the inhabitants at vestry, and allowed by two justices of the peace within the division. We, having duly considered the whole of the circumstances, saw no reason for disallowing that sum, and we made no order respecting it. The accounts were verified and signed, and we signed at the foot of such account the following verification:-"The within and foregoing account was verified before the Rev. Giles Daubeny, clerk, and John Samuel Willes Johnson, Esq., two of her Majesty's justices of the peace for the county of Wilts, at a special sessions for the highways in and for the division of Swindon, at Swindon in the said county, holden on the 29th day of March last, and thence continued by adjournment from time to time until this day. And we, the said above-mentioned justices, present at the special sessions, and also the same and najority of justices now present at the adjournment thereof, and complaint having been then and now at the time of such verification made to us by James

also state that, as in the said case, it was found a by us that the sum of 105. 12s. 2d. appeared to have been incurred by the resp. as such surveyor in law proceedings, under the sanction of the inhabitants of the parish of Swindon, which was and is referred to:--"Parish of Swindon.-Notice is hereby given, that a vestry will be held in the vestry-room of this parish on Thursday, the 23rd day of Sept. inst., at ten o'clock in the forenoon, for the purpose of taking into consideration the notices of appeal against the highwayrate given by William Amos Barnes, Henry Edwards Freeman and William Woolford, and the steps which should be taken thereon. Dated this 18th day of Sept. 1858. James Wise, overseer. (Signed) William Read, surveyor." In pursuance of such notice a vestry was held in the vestry-room of this parish on Thursday, the 23d Sept. 1858. It was proposed by Mr. George Reynolds, seconded by Mr. Charles Hurt, and carried unanimously-"That the appeals by William Amos Barnes, Henry Edwards Freeman and

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