8 Vict. c. 20. is, therefore, incorporated, and that enacts, that "In all cases where any damages, costs, or expenses are by this or the special act, or any act incorporated therewith, directed to be paid, and the method of ascertaining the amount or enforcing the payment thereof is not provided for, such amount, in case of dispute, shall be ascertained and determined by two Justices," &c., and if the amount so ascertained be not paid, &c., then the amount may be recovered by distress, and the Justices, &c. shall issue their warrant accordingly. Now, it will be contended that the effect of these sections is to take away the right of action, but that is not so, as the remedy by distress is merely cumulative.

Manisty (Mellish with him), contrà.This is not a case in which an action will lie. There are two means by which expenses may be recovered-one by action, and the other as damages before the Justices. The plaintiffs cannot rely upon section 149, for that section was simply meant to give the double remedy where the legislature had not given the simple remedy. All these sections may be read by the light of section 1. of the Towns Improvement Act, "Whereas it is expedient to comprise in one act sundry provisions usually contained in acts of parliament for paving," &c., "be it enacted, that this act shall extend only to such towns or districts in England as shall be comprised in any act of parliament hereafter to be passed which shall declare that this act shall be incorporated therewith; and all the clauses of this act, save so far as they shall be expressly varied or excepted by any such act, shall apply to the town or district which shall be comprised in such act, and to the Commissioners," &c., "so far as such clauses shall be applicable thereto respectively, and shall, with the clauses of every other act which shall be incorporated therewith, form part of such act, and be construed therewith as forming one act." The remedy which is given by section 140. of 8 Vict. c. 20, is the only remedy in this case, and it is the only practicable one, for, by it, a method of ascertaining the damages is given. It was never intended that actions should be brought against all the persons who owned NEW SERIES, XXVIII.-MAG. CAS.

premises fronting the street, but it was intended that they should all be summoned, and then that the amount to be paid should be apportioned amongst them.

[LORD CAMPBELL, C.J.-There is no doubt that that would be the most convenient course. WIGHTMAN, J.-The special act does not say it may be recovered by action, but as damages.]

Yes, it steps in and specially provides that the expenses may be recovered as damages, and no other method is given for ascertaining the damages except as damages before the Justices.

[WIGHTMAN, J.-The amount is left uncertain in the declaration.]

There may be two remedies in every case where it is not said that you are not to have them; but here the special act says they are to be recoverable as damages before the Justices. "May" is the proper word to use, for it was never intended that there must be proceedings against every defaulter. (He was then stopped.)

Russell, in reply.-The three acts are to be read together as one, and so as to make the whole cohere, and then it is clear that the action will lie, for an express remedy is given in the alternative by section 149.

[LORD CAMPBELL, C.J.-Section 149. does not state how the damages are to be recovered; but recovery as damages seems to be opposed, not only to recovery by action of debt, but also to recovery by action altogether.]

The method of recovery by damages does not repeal the section which gives an action of debt. The sum of money mentioned in the declaration appears to be liquidated, and it may be that the statute intended that where the amount was liquidated, it was to be recovered by action, but where it was unliquidated, to be recovered as damages before the Justices. Can it be said that section 34. is to be read as if the amount is not to be recovered by action?" May" cannot be read as if it were shall," for an alternative is given by section 149.

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LORD CAMPBELL, C.J.-The case has been argued most ingeniously and most ably, but I have come to the conclusion, that the action cannot be maintained. The

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149th and 210th sections of the Towns Improvement Act must be considered as embodied in the local act; and looking at the whole as one act, I am of opinion that the action cannot be maintained, because, in the case of such a demand as this, the amount is recoverable as damages, and is placed in opposition to a liquidated amount, which may be recoverable in an action. It is a most convenient course that the proceeding should be before Justices, and is far preferable to proceeding by action. Then, is not the proceeding before Justices clearly provided for?

a specific mode had been provided by section 34, then section 210. would not apply, but no specific mode is provided, for section 34. merely says, "may be recovered from the last-mentioned owners as damages," without saying whether by action or by proceeding before the Justices; it may just as well mean the latter as the former, and then by section 210, incorporating section 140. of the Railways Clauses Act, as there is no special method of ascertaining the amount pointed out before, it is to be recovered as damages before Justices in the way pointed out by that section. That remedy is pointed out; it is the only one, a new one, and must be pursued.

WIGHTMAN, J.-I am of the same opinion. The three acts are to be read as one. By section 34. the expenses may be recovered as damages, that is, in the case of an unascertained sum in contradistinction to a liquidated sum. Then, under the 149th section of the Towns Improvement Act, we find that they may be recovered as damages, or by action of debt, &c. It is clear that under that section they may be recovered as damages. Now, in what manner are they to be recovered as damages? 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 the three acts together, I think that the action cannot be maintained.

ERLE, J.-I am clearly of opinion that this action cannot be maintained. A right is created by statute, and the plaintiffs are bound to follow the remedy given, and have no other. A specific remedy is

pointed out by section 34, and no other can be adopted; it says that the expenses may be recovered as damages. That points out the remedy if the party claiming the payment of the expenses chooses to proceed for them. The words are remarkable, "may be recovered as damages." Then, sect. 149. says, that such expenses may be recovered in the same manner as damages, or in an action of debt, &c. ; but then the 1st section says, that all the clauses shall be incorporated unless varied or excepted by the local act. Then, is there a specific means of recovery as damages? The Railways Clauses Act is incorporated, and by section 140, in all cases where any expenses are, by the special act directed to be paid, and the method of ascertaining the amount is not provided for, they may be recovered as damages before the Justices. Then comes sect. 34, which specifically says they may be recovered as damages, and the case falls specifically within this and the 140th section.

I am, therefore, clearly of opinion that the declaration is bad.

HILL, J.—I am of the same opinion. The question really turns upon the construction to be put upon section 34. If section 149. were blotted out, what would be the remedy? There would be none but that which is referred to in section 34; and then the general rule, where there is a new obligation made by an act of parliament, and a new remedy, would apply. But it is said that there is also an action of debt. But can you vary section 34. by incorporating with it the Towns Improvement Act? Upon looking at the Towns Improvement Act it is clear that the provision in section 34. must prevail, and that the parties are limited to the mode of proceeding pointed out by that section.

going to or returning from visiting any sick parishioner, or on other his parochial duty within his parish:-Held, that a clergyman acting temporarily as curate of a parish, with the permission of the bishop, though without his licence, was a curate within the exemption; and that the exemption extended to a turnpike without the parish to which he was going on parochial duty.

CASE stated on appeal by the Justices in petty sessions for Teignbridge, in the county of Devon.

The appellant was charged, under the 4 Geo. 4. c. 95. s. 39, on an information for taking illegal toll on the 14th of February 1858.

At the hearing of the information it was proved, on the part of the informant, the respondent, that he was a clergyman of the Church of England, residing at West Teignmouth, in the county of Devon, distant about four miles from the vicarage of the parish of Kingsteignton, in the same county; that a short time previously to Sunday the 14th of February 1858 the vicarage of Kingsteignton became vacant by the resignation of the then vicar, upon whose resignation the respondent was appointed by the churchwardens of the parish to discharge the clerical duties of that parish until the induction of another vicar. He had not been formally licensed as the curate of Kingsteignton by the bishop of the diocese, but had been authorized to perform the duties of that office by a letter from the bishop's secretary, giving him authority from the bishop to officiate as curate until the new incumbent should come into residence. On Sunday the 14th of February 1858 the respondent was driving on the turnpike-road from West Teignmouth to the parish of Kingsteignton to perform the parochial duties within the latter parish. On passing through the Broadmeadow Turnpike Gate, situate in the parish of West Teignmouth, at which the appellant was toll collector, the appellant demanded the toll; the respondent claimed exemption as the curate of Kingsteignton, telling the appellant that he was then going to Kingsteignton on his parochial duties as curate of that parish, and paid the toll under protest.

It was contended, on the part of the

appellant, that the respondent was not legally entitled to exemption from the toll under the statute 3 Geo. 4. c. 126. s. 32, on the grounds, first, that the respondent was not the curate of the parish of Kingsteignton within the meaning of the exemption; and secondly, that the Broadmeadow Turnpike Gate not being situate within the parish of Kingsteignton, the respondent, according to the true meaning and construction of the words of the statute, "within his parish," was not entitled to the exemption claimed.

The Justices were of opinion that the respondent was the curate of the parish of Kingsteignton within the meaning of the said exemption, and that the words "within his parish," contained in the said act, were intended to define the locality of the duties of the clergyman, and not to limit the locality of the turnpike-road; and they convicted the appellant in a penalty of 21. and costs.

The opinion of the Court was asked, whether or not the Justices were right in point of law.

Martin, for the respondent, in support of the conviction.-The respondent was within the exemption of the General Turnpike Act (3 Geo. 4. c. 126. s. 32.), which enacts, that no toll shall be taken "from any rector, vicar, or curate, going to or returning from visiting any sick parishioner, or on other his parochial duty within his parish." First, the respondent was de facto curate of Kingsteignton, and that is sufficient. Secondly, the proper construction of the section is, that he must be going or returning from parochial duty within his parish, not be travelling within it.

Karslake, for the appellant.-The officiating minister is not exempt, but only any rector, vicar, or curate; the respondent was none of these.

[LORD CAMPBELL, C.J.-He is de facto curate, and has the authority of the bishop, although no licence under seal.]

In the 32nd section is, first, a universal exemption of the Queen's carriages, &c., all over England; then certain agricul tural exemptions without any limit as to parish; and then come certain, what may be called parochial, exemptions, viz., or persons going to or returning from their

proper parochial church or chapel, or from their usual place of religious worship, without any restriction as to situation; and then comes the exemption in question, where, in addition to "parochial duty," is added "within his parish." "Parochial duty" would be quite sufficient without adding "within his parish," to define the limits of exemption as far as duty is concerned, and these latter words must therefore have been added to shew the limit of exemption as to place. The rector and vicar must be presumed to live within the parish and any other construction would leave the exemption without any limit. A clergyman is going on his parochial duty when he is returning to do duty in his parish, however far off he may be.

[HILL, J.-A man returning from a journey cannot be said to be going or returning on parochial duties.]

That may be so: but without putting an extreme case, if the exemption extends to a turnpike without the parish, there would be great difficulty imposed on tolltakers; for how are they to know who is exempt and who not?

LORD CAMPBELL, C.J.-There seems to me no doubt that the respondent was within the exemption of the act. He was de facto curate, though not, perhaps, legally so for want of a formal licence, but it was not for the turnpike man to question the legal title. Then, was he exempt from the toll, the gate not being within the parish to which he was going on parochial duty? The exemption is general of any rector, &c., without any restriction as to the particular situation of the gate. The exemption is of any rector, &c. going or returning from visiting a sick parishioner, or other parochial duty within his parish: not going or returning within his parish. The collocation of the words is clearly in favour of the view the Justices took.

Sunday Trading Act-18 & 19 Vict. c. 118. s. 2.-Sale of Beer, &c. during certain Hours of Sunday-Traveller.

It is a question of fact what is "a traveller," within the exception of 18 & 19 Vict. c. 118. s. 2, by which licensed victuallers are not allowed to open their houses for the sale of beer, &c., between the hours of three and five on Sundays, except to a traveller; but a person is not less a traveller, within the meaning of such exception, because he travels for pleasure.

A party of persons left, on a Sunday afternoon, the town of L, in a vehicle, for pleasure, and after driving a round of eight to ten miles, arrived at the inn of a licensed victualler at G, which is situate about five miles from L, where they were served with beer and refreshments between the hours of three and five. None of the persons lived at G.:-Held, that, on these facts, the Justices ought not to convict the victualler, under the 18 & 19 Vict. c. 118. s. 2, as the persons whom he had so served were travellers, within the meaning of the exception to that section.

CASE stated by the Justices for the county of Lancaster, for the opinion of the Court of Common Pleas, in pursuance of the statute 20 & 21 Vict. c. 43.

The appellant was summoned and appeared before the said Justices, upon an information and complaint laid by the respondent, and which charged the appellant, for that he, on the 6th of June 1858, at the township of Garston, being then and there a housekeeper duly licensed to sell. exciseable liquors by retail, to be drunk and consumed in his house and premises there situate, and the said day, being Sunday, did unlawfully open his said house for the sale of beer between the hours of three and five of the clock in the afternoon, to 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 charge was made under the 18 & 19 Vict.

c. 118. s. 2. The licence and other preliminaries to the alleged offence were duly proved. The house kept by the appellant, and referred to in the information, is about 5 miles from Liverpool, and is much resorted to by parties from Liverpool and the neighbourhood. It was proved, on behalf of the complainant, now the respondent, that a police-officer in private clothes, on the day in question, and within the hours mentioned in the information, entered the defendant's house. The door was closed, and the appellant looked through a trap-door at each party, but the officer did not hear whether he asked any questions or not. The officer found five men there; and it was proved that beer was served to four of them. It was proved, on the part of the complainant, that none of the men lived in Garston or the neighbourhood. The evidence of the officer was admitted to be true by the appellant.,

On the part of the appellant, the four persons to whom beer was served were called, and it was proved that they had come in two parties with ladies, who were in the grounds attached to the house. Each party had left Liverpool about two o'clock in the afternoon for pleasure, in a vehicle, and had driven a round of from eight to ten miles before arriving at Garston. They drove their horses and vehicles into the appellant's stable-yard, and ordered meal and water for the horses, and then themselves went into the house for refreshments. It was proved that the fifth man was an inhabitant of Liverpool, but no evidence was given as to how he had got to Garston; but to him no beer had been supplied. It was proved that the appellant asked each of the four parties whether they were travellers, and admitted them on receiving an affirmative answer.

It was contended, on the part of the appellant, that the case against him was not proved, because it was not shewn that the parties to whom he had opened his house for the sale of beer were not travellers, within the meaning of the exception in the act of parliament, and also because it was shewn affirmatively, as he argued, that they were travellers within such exception.

The Justices thought that they were bound to convict, and accordingly convicted the appellant, and fined him 20s.

and costs; and the grounds of their said decision were, that they thought that, taking, as they did take, the evidence on both sides to be true, they could not hold that there was any evidence that the par-. ties to whom beer was supplied were travellers, or that there was any deficiency of proof on the part of the prosecution.

The case stated that the Justices at first intimated their opinion that, under the 1st section of the 20 & 21 Vict. c. 43, they had no power to grant a case, as they did not consider the matter a point of law; but that, at the urgent request of the appellant and his counsel, and as they, the Justices, were desirous of obtaining a decision as to who are travellers, they granted a case and stated the same in compliance with such application.

The opinion of the Court was requested, "whether, upon the facts stated in the case, the Justices were bound to convict the said Matthew Atkinson; and the Justices prayed the Court to make such order therein as the Court should think proper."

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Leofric Temple, for the appellant.-The question is, what is a traveller" within the exception of the 18 & 19 Vict. c. 118. s. 2, the act for regulating the sale of beer and other liquors on a Sunday, which prohibits any licensed victualler from opening his house for the sale of beer and other liquors between the hours of three and five o'clock on a Sunday afternoon "except to a traveller, or to a lodger therein." The prior act on the subject, viz., the 17 & 18 Vict. c. 79. s. 1, contained this exception, "except as refreshment to a bona fide traveller or a lodger therein." It would, therefore, seem that the legislature did not intend by the last act to make the definition of a traveller so strict as it was under the former act.

[WILLIAMS, J.-What was the meaning of bona fide traveller? Can a man be said to be a malá fide traveller? The question in both cases must be, was he a traveller?]

There have been many conflicting decisions amongst the Magistrates on the subject, and it is very desirable to have the opinion of the superior Court upon the meaning of the words in this exception. It is submitted that the object of the act