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8 Vict. c. 20. is, therefore, incorporated, premises fronting the street, but it was and that enacts, that " In all cases where intended that they should all be summoned, any damages, costs, or expenses are by and then that the amount to be paid should this or the special act, or any act incorpo- be apportioned amongst them. rated therewith, directed to be paid, and (Lord CAMPBELL, C.J.—There is no the method of ascertaining the amount or doubt that that would be the most conveenforcing the payment thereof is not pro- nient course. WIGHTMAN, J.—The special vided for, such amount, in case of dispute, act does not say it may be recovered by shall be ascertained and determined by two action, but as damages.) Justices," &c., and if the amount so ascer- Yes, it steps in and specially provides tained be not paid, &c., then the amount that the expenses may be recovered as may be recovered by distress, and the damages, and no other method is given for Justices, &c. shall issue their warrant ascertaining the damages except as damaccordingly. Now, it will be contended

ages before the Justices. that the effect of these sections is to take [WIGHTMAN, J. — The amount is left away the right of action, but that is not uncertain in the declaration.] so, as the remedy by distress is merely There may be two remedies in every cumulative.

case where it is not said that you are not Manisty (Mellish with him), contrà.- to have them; but here the special act says This is not a case in which an action will they are to be recoverable as damages lie. There are two means by which ex- before the Justices. “May” is the proper penses may be recovered—one by action, word to use, for it was never intended that and the other as damages before the Jús- there must be proceedings against every tices. The plaintiffs cannot rely upon defaulter.—(He was then stopped.) section 149, for that section was simply Russell, in reply.—The three acts are meant to give the double remedy where to be read together as one, and so as to the legislature had not given the simple make the whole cohere, and then it is clear remedy. All these sections may be read that the action will lie, for an express by the light of section 1. of the Towns remedy is given in the alternative by Improvement Act, “Whereas it is ex- section 149. pedient to comprise in one act sundry [LORD CAMPBELL, C.J.-Section 149. provisions usually contained in acts of does not state how the damages are to be parliament for paving,"&c., “be it enacted, recovered; but recovery as damages seems that this act shall extend only to such to be opposed, not only to recovery by towns or districts in England as shall be action of debt, but also to recovery by comprised in any act of parliament here- action altogether.] after to be passed which shall declare that The method of recovery by damages this act shall be incorporated there with ; does not repeal the section which gives an and all the clauses of this act, save so far action of debt. · The sum of money menas they shall be expressly varied or ex- tioned in the declaration appears to be cepted by any such act, shall apply to the liquidated, and it may be that the statute town or district which shall be comprised intended that where the amount was liquiin such act, and to the Commissioners," dated, it was to be recovered by action, &c., " so far as such clauses shall be appli- but where it was unliquidated, to be recable thereto respectively, and shall, with covered as damages before the Justices. the clauses of every other act which shall Can it be said that section 34. is to be be incorporated therewith, form part of read as if the amount is not to be recovered such act, and be construed therewith as by action?“ May" cannot be read as if forming one act." The remedy which is it were “shall," for an alternative is given given by section 140. of 8 Vict. c. 20, is by section 149. the only remedy in this case, and it is the only practicable one, for, by it, a method LORD CAMPBELL, C.J.-The case has of ascertaining the damages is given. It been argued most ingeniously and most was never intended that actions should be ably, but I have come to the conclusion, brought against all the persons who owned that the action cannot be maintained. The

NEW SERIES, XXVIII.-Mag. Cas.

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149th and 210th sections of the Towns pointed out by section 34, and no other Improvement Act must be considered as can be adopted; it says that the expenses embodied in the local act; and looking at may be recovered as damages. That points the whole as one act, I am of opinion that out the remedy if the party claiming the the action cannot be maintained, because, payment of the expenses chooses to proceed in the case of such a demand as this, the for them. The words are remarkable, “may amount is recoverable as damages, and be recovered as damages." Then, sect. 149. is placed in opposition to a liquidated says, that such expenses may be recovered amount, which may be recoverable in an in the same manner as damages, or in an action. It is a most convenient course action of debt, &c.; but then the 1st section that the proceeding should be before Jus- says, that all the clauses shall be incorporated tices, and is far preferable to proceeding unless varied or excepted by the local act. by action. Then, is not the proceeding Then, is there a specific means of recovery before Justices clearly provided for? If as damages? The Railways Clauses Act a specific mode had been provided by is incorporated, and by section 140, in all section 34, then section 210. would not cases where any expenses are, by the speapply, but no specific mode is provided, cial act directed to be paid, and the method for section 34. merely says, “may be re- of ascertaining the amount is not provided covered from the last-mentioned owners as for, they may be recovered as damages damages," without saying whether by before the Justices. Then comes sect. 34, action or by proceeding before the Jus- which specifically says they may be retices; it may just as well mean the latter covered as damages, and the case falls as the former, and then by section 210, specifically within this and the 140th secincorporating section 140. of the Railways tion. I am, therefore, clearly of opinion Clauses Act, as there is no special method that the declaration is bad. of ascertaining the amount pointed out HILL, J.-I am of the same opinion. before, it is to be recovered as damages The question really turns upon the conbefore Justices in the way pointed out by struction to be put upon section 34.

If that section. That remedy is pointed out; section 149. were blotted out, what would it is the only one, a new one, and must be be the remedy? There would be none but pursued.

that which is referred to in section 34; Wightman, J.-I am of the same opin- and then the general rule, where there is a ion. The three acts are to be read as one. new obligation made by an act of parliaBy section 34. the expenses may be reco- ment, and a new remedy, would apply. vered as damages, that is, in the case of an But it is said that there is also an action unascertained sum in contradistinction to of debt. But can you vary section 34. by a liquidated sum. Then, under the 149th incorporating with it the Towns Improvesection of the Towns Improvement Act, ment Act ? Upon looking at the Towns we find that they may be recovered as Improvement Act it is clear that the prodamages, or by action of debt, &c. It is vision in section 34. must prevail, and clear that under that section they may be that the parties are limited to the mode of recovered as damages. Now, in what man- proceeding pointed out by that section. ner are they to be recovered as damages ?

Judgment for the defendant, By all the sections, where damages are to be paid they are to be ascertained before the Justices ; this remedy is therefore pointed out, and it appears to be most convenient and peculiarly applicable. Reading

1858. TEMPLE, appellant, v. DICKINthe three acts together, I think that the Nov. 4.

Son, respondent. action cannot be maintained.

Turnpike-Exemption from Toll-ClerERLE, J.-I am clearly of opinion that this action cannot be maintained. A right

gyman on Parochial Duty3 Geo. 4.c. 126.

s. 32. is created by statute, and the plaintiffs are bound to follow the remedy given, and The 3 Geo. 4. c. 126. s. 32. exempts from have no other. A specific remedy is turnpike toll any rector, vicar, or curate, going to or returning from visiting any sick appellant, that the respondent was not parishioner, or on other his parochial duty legally entitled to exemption from the toll within his parish :—Held, that a clergy- under the statute 3 Geo. 4. c. 126. s. 32, man acting temporarily as curate of a parish, on the grounds, first, that the respondent with the permission of the bishop, though was not the curate of the parish of Kingswithout his licence, was a curate within the teignton within the meaning of the exempexemption, and that the exemption ex- tion ; and secondly, that the Broadmeadow tended to a turnpike without the parish to Turnpike Gate not being situate within the which he was going on parochial duty. parish of Kingsteignton, the respondent,

according to the true meaning and conCase stated on appeal by the Justices struction of the words of the statute, in petty sessions for Teignbridge, in the “ within his parish," was not entitled to county of Devon.

the exemption claimed. The appellant was charged, under the The Justices were of opinion that the 4 Geo. 4. c. 95. s. 39, on an information respondent was the curate of the parish of for taking illegal toll on the 14th of Feb- Kingsteignton within the meaning of the ruary 1858.

said exemption, and that the words within At the hearing of the information it his parish,” contained in the said act, were was proved, on the part of the informant, intended to define the locality of the duties the respondent, that he was a clergyman of the clergyman, and not to limit the of the Church of England, residing at locality of the turnpike-road; and they West Teignmouth, in the county of Devon, convicted the appellant in a penalty of 21. distant about four miles from the vicarage and costs. of the parish of Kingsteignton, in the The opinion of the Court was asked, same county ; that a short time previously whether or not the Justices were right in to Sunday the 14th of February 1858 the point of law. vicarage of Kingsteignton became vacant by the resignation of the then vicar, upon Martin, for the respondent, in support whose resignation the respondent was ap- of the conviction.—The respondent was pointed by the church wardens of the parish within the exemption of the General Turnto discharge the clerical duties of that pike Act (3 Geo. 4. c. 126. s. 32.), which parish until the induction of another vicar. enacts, that no toll shall be taken “ from He had not been formally licensed as the any rector, vicar, or curate, going to or curate of Kingsteignton by the bishop of returning from visiting any sick parishioner, the diocese, but had been authorized to or on other his parochial duty within his perform the duties of that office by a letter parish.” First, the respondent was de from the bishop's secretary, giving him facto curate of Kingsteignton, and that is authority from the bishop to officiate as sufficient. Secondly, the proper construccurate until the new incumbent should tion of the section is, that he must be going come into residence. On Sunday the 14th or returning from parochial duty within of February 1858 the respondent was his parish, not be travelling within it. driving on the turnpike-road from West Karslake, for the appellant.—The offiTeignmouth to the parish of Kingsteignton ciating minister is not exempt, but only to perform the parochial duties within the any rector, vicar, or curate; the respondent latter parish. On passing through the was none of these. Broadmeadow Turnpike Gate, situate in [LORD Campbell, C.J.-He is de facto the parish of West Teignmouth, at which curate, and has the authority of the bishop, the appellant was toll collector, the appel- although no licence under seal.] lant demanded the toll; the respondent In the 32nd section is, first, a universal claimed exemption as the curate of Kings- exemption of the Queen's carriages, &c., teignton, telling the appellant that he was all over England ; then certain agricul. then going to Kingsteignton on his paro- tural exemptions without any limit as to chial duties as curate of that parish, and parish ; and then come certain, what

may paid the toll under protest.

be called parochial, exemptions, viz., or It was contended, on the part of the persons going to or returning from their

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proper parochial church or chapel, or from

[IN THE COURT OF COMMON PLEAS.) their usual place of religious worship,

1858. without any restriction as to situation; and

| ATKINSON, appellant, v, SEL

Nov. 30. then comes the exemption in question,

LERS, respondent. where, in addition to " parochial duty,"

Sunday Trading Act18 & 19 Vict. is added " within his parish.” “Parochial c. 118. s. 2.-Sale of Beer, &c. during duty" would be quite sufficient without

certain Hours of Sunday-Traveller. adding " within his parish," to define the limits of exemption as far as duty is con- It is a question of fact what is "a tracerned, and these latter words must there- veller," within the exception of 18 f. 19 fore have been added to shew the limit of Vict. c. 118. s. 2, by which licensed vicexemption as to place. The rector and tuallers are not allowed to open their houses vicar must be presumed to live within the for the sale of beer, &c., between the hours parish : and any other construction would of three and five on Sundays, except to a leave the exemption without any limit. traveller ; but a person is not less a traA clergyman is going on his parochial duty veller, within the meaning of such exception, when he is returning to do duty in his because he travels for pleasure. parish, however far off he may be.

A party of persons left, on a Sunday [Hill, J.-A man returning from a afternoon, the town of L, in a vehicle, for journey cannot be said to be going or re- pleasure, and after driving a round of eight turning on parochial duties.]

to ten miles, arrived at the inn of a licensed That

may be so: but without putting victualler at G, which is situate about five an extreme case, if the exemption extends miles from L, where they were served with to a turnpike without the parish, there beer and refreshments between the hours of would be great difficulty imposed on toll- three and five. None of the persons lived takers; for how are they to know who is at G. :-Held, that, on these facts, the exempt and who not ?

Justices ought not to convict the victualler,

under the 18 f. 19 Vict. c. 118. s. 2, as the LORD CAMPBELL, C.J.— There seems persons whom he had so served were travelto me no doubt that the respondent was lers, within the meaning of the exception to within the exemption of the act. He was that section. de facto curate, though not, perhaps, legally so for want of a formal licence, but it was CASE stated by the Justices for the not for the turnpike man to question the county of Lancaster, for the opinion of the legal title. Then, was be exempt from Court of Common Pleas, in pursuance of the toll, the gate not being within the the statute 20 & 21 Vict. c. 43. parish to which he was going on parochial The appellant was summoned and apduty ? The exemption is general of any peared before the said Justices, upon an rector, &c., without any restriction as to information and complaint laid by the the particular situation of the gate. The respondent, and which charged the appelexemption is of any rector, &c. going or lant, for that he, on the 6th of June 1858, returning from visiting a sick parishioner, at the township of Garston, being then and or other parochial duty within his parish: there a housekeeper duly licensed to sell not going or returning within his parish. exciseable liquors by retail, to be drunk The collocation of the words is clearly in and consumed in his house and premises favour of the view the Justices took. there situate, and the said day, being Sun

day, did unlawfully open his said house for WIGATMAN, J. and Hill, J. concurred the sale of beer between the hours of three (1).

and five of the clock in the afternoon, to Appeal dismissed, with costs. wit, at four of the clock in the afternoon

of the said day, otherwise than to a traveller or to a lodger in the said house and premises, contrary to the form of the

statute in such case made and provided. The (1) Erle, J. had left the court for chambers. charge was made under the 18 & 19 Vict. c. 118. s. 2. The licence and other pre- and costs; and the grounds of their said liminaries to the alleged offence were duly decision were, that they thought that, proved. The house kept by the appellant, taking, as they did take, the evidence on and referred to in the information, is about both sides to be true, they could not hold 54 miles from Liverpool, and is much that there was any evidence that the parresorted to by parties from Liverpool and ties to whom beer was supplied were trathe neighbourhood. It was proved, on vellers, or that there was any deficiency of behalf of the complainant, now the respon- proof on the part of the prosecution. dent, that a police officer in private clothes, The case stated that the Justices at first on the day in question, and within the intimated their opinion that, under the 1st hours mentioned in the information, entered section of the 20 & 21 Vict. c. 43, they had the defendant's house. The door was no power to grant case, as they did not closed, and the appellant looked through a consider the matter a point of law; but trap-door at each party, but the officer did that, at the urgent request of the appellant not hear whether he asked any questions and his counsel, and as they, the Justices, or not. The officer found five men there; were desirous of obtaining a decision as to and it was proved that beer was served to who are travellers, they granted a case and four of them. It was proved, on the part stated the same in compliance with such of the complainant, that none of the men application. lived in Garston or the neighbourhood. The opinion of the Court was requested, The evidence of the officer was admitted to “whether, upon the facts stated in the be true by the appellant. ,

case, the Justices were bound to convict On the part of the appellant, the four the said Matthew Atkinson; and the Juspersons to whom beer was served were tices prayed the Court to make such order called, and it was proved that they had therein as the Court should think proper." come in two parties with ladies, who were in the grounds attached to the house. Leofric Temple, for the appellant. The Each party had left Liverpool about two question is, what is “a traveller” within o'clock in the afternoon for pleasure, in a the exception of the 18 & 19 Vict. c. 118. vehicle, and had driven a round of from s. 2, the act for regulating the sale of eight to ten miles before arriving at Gar- beer and other liquors on a Sunday, which ston. They drove their horses and vehicles prohibits any licensed victualler from into the appellant's stable-yard, and or- opening his house for the sale of beer and dered meal and water for the horses, and other liquors between the hours of three then themselves went into the house for and five o'clock on a Sunday afternoon refreshments. It was proved that the fifth except to a traveller, or to a lodger man was an inhabitant of Liverpool, but therein." The prior act on the subject, no evidence was given as to how he had viz., the 17 & 18 Vict. c. 79. s. 1, congot to Garston ; but to him no beer had tained this exception, "except as refreshbeen supplied. It was proved that the ment to a bona fide traveller or a lodger appellant asked each of the four parties therein.” It would, therefore, seem that whether they were travellers, and admitted the legislature did not intend by the last them on receiving an affirmative answer. act to make the definition of a traveller so

It was contended, on the part of the ap- strict as it was under the former act. pellant, that the case against him was not [WILLIAMS, J.-What was the meaning proved, because it was not shewn that the of bona fide traveller ? Can a man be parties to whom he had opened his house said to be a mala fide traveller ? The for the sale of beer were not travellers, question in both cases must be, was he a within the meaning of the exception in the traveller?] act of parliament, and also because it was There have been many conflicting decishewn affirmatively, as he argued, that they sions amongst the Magistrates on the subwere travellers within such exception. ject, and it is very desirable to have the

The Justices thought that they were opinion of the superior Court upon the bound to convict, and accordingly con- meaning of the words in this exception. victed the appellant, and fined him 20s. It is submitted that the object of the act

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