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ambiguous words-Denn v. Diamond (13) and Wroughton v. Turtle (14). It was also pointed out, that certain debts were specially recognized and provided for, viz. by the 24th and 25th sections of the 4 & 5 Will. 4. c. 76. We think that any inference to be drawn from these provisions is rather against the power of the Poor-Law Commissioners or board of guardians to authorize what would substantially be a retrospective rate. It is the same inference as that afforded by the statute 41 Geo. 3. c. 22, before referred to.

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But, secondly, even supposing that the Poor-Law Commissioners have power to make such a rule or order, we think they did not exercise it by the 81st and 82nd articles of the Consolidated Orders. These articles are contained under the heading of "Orders for Contribution and Payment. By the 26th section of the Poor-Law Act, after enabling parishes to be united into unions, it is provided that notwithstanding their union each of the parishes shall be separately chargeable and liable to defray the expenses of its own poor. The 81st article was obviously framed to meet the consequences of this enactment. It orders, "that the clerk of each union shall, four weeks at least before the 25th of March and the 29th of September respectively in each year, ascertain the cost to each parish in the union for the maintenance of its poor and other separate charges, as well as for the common charges incurred in the half of the last year corresponding to the half-year next coming, and shall estimate and, as near as may be, divide amongst the parishes any "extraordinary charges" to which the union may be liable in the coming half-year; and shall then prepare the orders on the several parishes for the sums which, upon such computation, it shall appear necessary for them to contribute to the expenses of the union for the coming half-year." The clerk is, therefore, to ascertain, first, the cost to each parish for the maintenance of its poor for a past period, which by the 26th section is a separate charge; secondly, the other separate charges for the same

(13) 4 B. & C. 245.

(14) 11 Mee. & W. 567; s. c. 13 Law J. Rep. (N.S.) Exch. 57.

period; thirdly, the common charges, that is, the charges mentioned in the 28th section, which make up the common fund, such as for the building or repairing of the workhouse, the payment of the officers of the union, and the other expenses to be incurred for the common use, or on the common account of all the parishes, and thereby he is to estimate and divide amongst the parishes any extraordinary charges to which the union may be liable in the coming half-year. We think, that the "extraordinary charges" in the 81st article are lawful charges other than the ordinary ones, and for which the parishes of the union are bound by law to provide by the rates, in order to comply with and give obedience to the order of the guardians directed by the 82nd article—such as any charges specially imposed upon the rates for the payment of debts or the interest of debts or otherwise, and not charges for which a rate cannot be lawfully made -for instance, in the abstract of the items which make up the sum of 61,4307. (the amount to be raised by the rate upon all the parishes of the union), the first is 2,3361. 15s. 9d. due to the butcher for meat supplied from the 24th of June 1856 to the 27th of December 1856, and altogether there are items amounting to 23,000l. for debts due to tradesmen at Christmas 1856. We have already stated, that in our judgment, a poor-rate cannot be lawfully made in 1857 to pay these debts; and we therefore think they are not extraordinary charges within the true meaning of the 81st article; and in this we differ from the Court of Queen's Bench. The 82nd article seems to us to confirm our view upon this point. By it the guardians are directed to make the order upon the proper authorities of the parish, for the payment of such sum as may be required for the relief of the poor, for the contribution of the parish to the common fund of the union, or for any other expenses chargeable by the guardians on the parish, that is, legally chargeable; and as we have already said, we think past debts are not so chargeable, and therefore could not be lawfully included in the account upon which the order of the 17th of February 1857 was founded. For these reasons we are of opinion, that the aggregate sum of 61,430l. imposed upon the

entire union (of which the sum of 2,800l. ordered to be paid by the parish of St. Stephen, Coleman Street, was an aliquot part) was excessive, and according to the case of Farlar v. Chesterton, the entire order was thereby rendered illegal. The order is to pay an entire sum of 2,800l.; the parish authorities have no means of apportioning it.

Another argument was also addressed to us, to which much consideration is due. It was argued, that whatever the law might have been before the new Poor-Law Act, the matter was now altered. Before then, the overseers of the poor were not a corporation, and if they thought fit to contract debts, they were personally liable, and must themselves take the consequence; but that now the guardians of the poor are corporations by virtue of the 5 & 6 Will. 4. c. 69. s. 7, and were enabled to have and hold property both real and personal, by virtue of the 5 & 6 Vict. c. 51. s. 16; that if their creditors sue them and obtain judgment, they can take the property of the corporation in execution and sell it, which must be replaced by other property purchased by funds obtained from prospective rates; that this might go on from time to time by successive executions upon successively acquired property, until the entire debt of 27,200l. was levied; and that it would be therefore preferable to permit a rate to be made at once to pay their debts than have them levied by successive executions, probably extending over many years. We are not insensible to the argument, and if the legal consequences be as surmised, there would undoubtedly be a very great evil, but we do not think that this, however great, would justify a Court of law in departing from the construction of the Statute of Elizabeth, which has been acted upon for upwards It is for the Legislature and not a Court of law to provide the remedy, if one be required. But the evil is not altogether on one side. There is possibly one quite as great upon the other. If the judgment of the Court of Queen's Bench be correct, the consequence would be, that all boards of guardians in the kingdom might contract debts to any amount and extending over any number of years (in the present case, the debt for

of 200 years.

butcher's meat alone is 2,3361., and for bread and flour 3,2197.), and if their officers and servants who were entrusted with money wherewith to pay them then embezzled it, it would be competent for the guardians to make orders upon the parishes, and compel ratepayers who had already provided funds for the purpose to pay a second time; and not merely this, but compel individuals, who were not liable at all, nevertheless to provide funds and pay for the support and maintenance of poor for whom they were not by law liable to provide. This would be the in

evitable consequence of the judgment of the Court of Queen's Bench, and the portion of the case above set out exemplifies it. It was said, that upon a judgment being obtained against the guardians, the Court of Queen's Bench would by mandamus compel the making a rate to pay it. We apprehend this is not so, the party obtaining the judgment would be left to the ordinary executions, and if we are right in our view, the Court of Queen's Bench has no power to do so. It has no power to order the making an illegal rate. We wish it to be distinctly understood, that in this judgment we express no opinion as to the liability of the board of guardians to actions at the suit of the tradesmen, or that their property may be taken in execution upon judgments obtained against them.

Another objection was taken by the learned counsel for the parish of St. Stephen, Coleman Street, which is entitled to much consideration. The collector Manini was appointed by the guardians, who, no doubt, represent the entire union, but by order of the Poor-Law Board, dated the 16th of March 1854, article 6, (page 282. of Glen's Orders), the collector is every week to pay the monies collected by him to the bankers whom the overseers may direct, to be placed to their account, or if directed by one of the overseers to the treasurer of the guardians, in payment of any order from such guardians then due, or in the absence of any such direction, shall pay the same to one of the overseers in person, and in the event of the collector having at any time in the course of any week 50l. in his hands, he is to pay it over forthwith as above directed. It is stated in the case that Manini

was ordered by the guardians to pay the amount collected by him to the treasurer. This seems not to be in compliance with the above order. The objection taken was, that it was the duty of the overseers of the nine parishes for which Manini was collector to have taken care that Manini complied with the 6th article of the Orders of the Poor-Law Board of the 16th of March 1854, and that the loss consequent upon this defect cannot lawfully be cast upon the other parishes of the union. We think this objection entitled to great weight; but it becomes unnecessary to come to a decision on this point, as, for the reasons before given, we consider the call or order for the 2,8001. upon the parish of St. Stephen, Coleman Street, invalid, and not enforceable. We cannot separate the good part from the bad, and as it is bad in part, it is in our opinion bad altogether.

It is right to allude to some decisions, of which the cases of The King v. Carpenter (15) and The Queen v. Read (16) are instances. In the former case, under the authority of an act of parliament, a sum of money was borrowed and charged upon the poor-rates. The Court of Queen's Bench issued a mandamus commanding it to be paid. This, no doubt, was right. In fact, the act of parliament directly authorized a retrospective rate for the purpose of paying the debt. There are several cases of a similar kind to be found in the Reports. The case of The Queen v. Read arose on the disallowance by an auditor of sums paid to an attorney for costs. We think that judgment is substantially in accordance with ours. It is certainly no authority that a poor-rate can be made in 1857 for the payment of a butcher's bill contracted for the sustenance of the paupers in 1856, which is the real point in the present case. It was urged, that the proper tribunal before whom the objection to the order was to be taken was the auditor; we, however, think that upon the principle of the case of Farlar v. Chesterlon, the order was void ab initio.

The judgment of the Court of Queen's Bench must, therefore, be reversed: and in

(15) 6 Ad. & E. 794.

(16) 13 Q.B. Rep. 524; s. c. 18 Law J. Rep. (N.S.) M.C. 164.

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Costs to or against Crown-On Appeals under 20 & 21 Vict. c. 43. ss. 2, 4, 6.

In all cases of appeal under the 20 & 21 Vict. c. 43. from the summary decision of Justices, on informations, the Court has power, under section 6, to award costs to the successful party, including cases in which the Crown is, directly or indirectly, a party to the information.

Therefore, on appeal against a conviction on an information by an Excise officer, prosecuting on behalf of the Crown by order of the Commissioners of Inland Revenue, for an offence under the 4 & 5 Will 4. c. 85. s. 17, the Court, on confirming the conviction, can award costs to the respondent, the Excise officer.

Pickering (Jan. 22) obtained a rule, calling on the respondent to shew cause why a rule of the 15th of January should not be amended by striking out the award of costs to be paid by the appellant to the respondent.

This was a CASE stated under the 20 & 21 Vict. c. 43, on appeal against the conviction of the appellant by two Justices of the West Riding of Yorkshire, of an offence against the 4 & 5 Will. 4. c. 85. s. 17, in having sold beer by retail without an Excise licence. The information was that the respondent, "one of Her Majesty's officers of Excise, and who prosecuted for Her Majesty in that behalf, exhibited in his own proper person an information before the Justices, which information is commenced and prosecuted by order of the Commissioners of Inland Revenue."

At the hearing of the case (Jan. 15) this Court affirmed the conviction with costs.

J. Wilde and Welsby shewed cause.The rule was obtained on the ground that this was a case in which the Crown was indirectly interested, if not directly as a party, and that no costs could therefore be given, as the Crown was not named in the statute, and The Queen v. Beadle (1) was cited. That case was decided under another statute; the question in the present case depends on the 20 & 21 Vict. c. 48. In the first place, strictly speaking, the respondent, the Excise officer, is personally, and, at all events, primarily liable for costs, and if the decision had been the other way would have had to pay them, though the Commissioners of Inland Revenue could, and no doubt would, if they approved his conduct, reimburse him. Assuming, however, that the Crown is interested, so that if this were a case independent of the late statutes no costs could have been given, costs may yet be given under the statute. Section 2. gives an appeal from the determination of Justices on the hearing of any information or complaint; this is clearly, therefore, a case within the act for the purpose of appeal, and if for any purpose, must be within it for all purposes. By section 6. a general power is given to the Court to make such order as to costs as they may think fit, which is to be final and conclusive on all parties; and if there were any doubt that the legislature contemplated cases in which the Crown were a party or interested, the matter is put beyond doubt by the 4th section, which gives the Justices a discretion to refuse a case, except where the application is made by or under the direction of Her Majesty's Attorney General.

Pickering, in support of the rule.-The respondent prosecuted for the Queen exactly in the same form as in The Queen v. Beadle, and it was there held, that costs could not be given. It is true that that decision was under a different statute, the 12 & 13 Vict. c. 45; but the principle is the same, that the Crown cannot be made to pay or

(1) 7 E. & B. 492; s. c. 26 Law J. Rep. (N.s.) M.C. 111.

receive costs unless expressly named. In the 12 & 13 Vict. c. 45. s. 5. the Court of Quarter Sessions were empowered to give costs in any appeal brought before them; and yet it was held in that case, on an appeal from a conviction by an Excise officer, precisely in the present form, that costs could not be given, because the Crown was a party and was not named in the statute. It seems impossible to distinguish that case from the present. When costs are intended to be given to or against the Crown, very different enactments are made use of, as in the 18 & 19 Vict. c. 90. ss. 1, 2; and a mode of enforcing them against the Crown is given, which would not be applicable to every case before Magistrates in petty sessions, as is pointed out by Crompton, J. in The Queen v. Beadle. In the present case, had the decision been reversed and costs awarded, how was the appellant to have enforced them?

LORD CAMPBELL, C.J.—I am of opinion that this rule must be discharged. It is a maxim that the Crown is not bound unless named; but if it is clear that the legislature meant to include every case, whether the Crown were interested or not, the Crown, by giving assent to such legislation, is bound; and in the present case, if attention had been called to it, it would have been seen that it was the intention to include the Crown and to give costs in all cases. It appears to me that the language of the present act is sufficiently wide to shew an intention to include the Crown, both as to allowing appeals and as to giving

costs.

WIGHTMAN, J.-It seems to me (though the matter is not without doubt), that the Crown must be taken to be within these enactments for all purposes. The words of the 2nd section, giving a right to appeal, are very general; and section 6, which gives the Court power to make an order on the merits of every appeal, gives power to award costs in terms equally general. And in addition there is section 4, shewing the intention clearly to include cases in which the Crown is a party.

CROMPTON, J.-In every case where there is an appellant and respondent, the Court is directed how to deal with it. And even without the 4th section, I should

have said there was sufficient to justify us
in awarding costs in all cases.
The prin-
ciple of The Queen v. Beadle, therefore, does
not apply. The 4th section, however, shews
that the Crown is included, just as much
as if "in Crown cases" had been inserted;
and after the Crown is thus impliedly in-
cluded, the 6th section points out how
costs are to be paid, viz., according to the
order of the Court. There seems no diffi-
culty as to getting an order enforced, if we
can clearly order the appellant or respon-
dent to pay the costs.

HILL, J.-The question is, whether the case of an information on behalf of the Crown is within the statute 20 & 21 Vict.

c. 43. Section 2. contains very wide words, giving an appeal in all cases of informations and complaint within the jurisdiction of Justices; but if it stood alone, it might possibly have been doubtful whether the Crown were included; but section 4. does refer to the Crown, taking away, as it does, the Justices' discretion to refuse a case where the application is through the Attorney General: the Crown being thus clearly included by implication, section 6, in the very same sentence by which it gives the Court jurisdiction to decide every appeal, gives the Court power to award costs. Therefore, it seems to me that the Court had power to award costs in the present case.

Rule discharged.

[CROWN CASE RESERVED.]

1859. Feb. 5.

THE QUEEN v. ROWE.

Sessions-At the Glamorganshire Midsummer Quarter Sessions, 1858, William Rowe was indicted for stealing sixteen cwt. of iron of the goods and chattels of the Company of Proprietors of the Glamorganshire Canal Navigation. It appeared by the evidence, that the iron had been taken from the canal by the prisoner, who was not in the employ of the canal company, while it was in process of being cleaned. The manager of the canal stated, that if the property found on such occasions in the canal can be identified, it is returned to the owner. If it cannot, it is kept by the company. It was objected that, as the canal company are not carriers, but only find a road for the conveyance of goods by private owners, the property was not properly laid as that of the canal company. The prisoner was convicted, and sentenced to two calendar months' imprisonment in the House of Correction at Cardiff, but was released on bail. (1)

Counsel were not instructed to argue.

POLLOCK, C.B.-We have considered this case, and are all of opinion that the conviction is right. The case finds that some iron had been stolen by the prisoner, who was a stranger, from a canal, while the canal was in the process of cleaning, and while the water was out. It was in evidence that the property had probably dropped out of some barge to the bottom of the canal. In the indictment the iron was laid to be the property of the company. The only question was, whether it was properly so laid. We are of opinion that it is quite sufficient. It is very much

Indictment Ownership of Property left like the case of property left by a guest at

in a Canal.

The prisoner stole some iron from a canal, in which it was found when the canal was in process of being cleaned. In an indictment against him for stealing the iron, it was held, that the proprietors of the canal had a sufficient property in the iron to justify the alleging the property to be in them.

The following CASE was reserved by the Chairman of the Glamorganshire Quarter

Coram Pollock, C.B., Williams, J., Wightman, J., Byles, J. and Hill, J.

an inn, and it is not known to whom it belongs. It is in the mean time in the custody of the landlord or person to whom it is delivered for use of the true owner. The company have a sufficient property, we think, in the iron, to justify the laying the property in them.

Conviction affirmed.

(1) Armory v. Delamirie, 1 Str. 505; s. c. 1 Smith, L.C. 151.

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