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[IN THE EXCHEQUER CHAMBER.] sum of money annually, in lieu of the emo1858. 2

luments belonging to the office. Upon his NICHOLSON 0. ELLIS. July 5.

resignation, the plaintiff was appointed

Clerk of the Peace for Westminster, and Clerk of the Peace for the City of West

claimed to be entitled to the emoluments of minster-Middlesex Sessions-Emoluments

clerk of the peace within the said city and of Office-Statute 7 & 8 Vict. c. 71. ss.

liberty :-Held, by the Court of Exchequer 11, 12.

Chamber, that he was not so entitled, for The 11th section of the statute 7 8 8 that the provisions in section 12. applied Vict. c. 71. (the act for the better ad- only to those who held the offices at the time ministration of criminal justice in Middle- of the passing of the act, and not to their sex') enacts, that, after the session of the successors in office. peace which shall be holden in and for the city and liberty of Westminster next after [For the report of the above case, see the passing of that act, sessions of the peace

28 Law J. Rep. (n.s.) Q.B. p. 238.] in and for the said liberty shall cease to be holden, and the sessions to be holden in and for the county of Middlesex shall be holden

1859. by adjournment within the said city and liberty, and shall have full jurisdiction over

April 30. all things cognisable by the sessions for the

Towns' Improvement Clauses Act, 1847, said city and liberty; and that the inhabit

10 & 11 Vict. c. 34. ss. 53, 156.—Meaning ants of the said city and liberty shall not be

of Word "theretofore" in Section 53.exempted from serving on juries at the ses

Improvement Rate. sions of the peace for the county of Middlesex holden within the said city and liberty. The word " theretofore," in section 53. of The 12th section enacts, that the persons 10 & 11 Vict. c. 34, is to be construed in holding the several offices of High Bailiff of its ordinary grammatical sense, and refers Westminster, Clerk of the Peace and all to streets which have at any time been well other officers of the Court of Sessions of the and sufficiently paved and flagged, or otherPeace for the said city and liberty shall, so wise made good to the satisfaction of the long as they shall be entitled to hold their Commissioners, and not to the state of such several offices, execute the duties and be en- streets at the time of the passing of the spetitled to the emoluments within the said city cial act, incorporated with the general act. and liberty of the several offices of sheriff, Therefore, where a street, which was a pubclerk of the peace, and other correspond- lic highway, had once been put in good ing officers of the county of Middlesex : repair, but which, at the time of the passing Provided always, that the records of every of the special act, was out of repair, -Held, session of the peace for the said county, that the Commissioners had no power, under holden within the said city and liberty, shall section 53. of the general act, to do the be sent within fourteen days after such ses- necessary repairs, and charge the expenses sion, by the clerk of the peace of the said on the adjoining occupiers. city and liberty to the clerk of the peace of the said county, and shall be kept by him This was a SPECIAL Case stated by Juswith the other records of his office. There tices for the opinion of the Court of Queen's are duties belonging to the office of Clerk of Bench. the Peace for Westminster other than any The appellants were owners of property which he may have in respect of business in the town of West Bromwich. The done at General or Quarter Sessions. After West Bromwich Improvement Act, 1854, the passing of the act, the person who had was incorporated with the general act. acted as Clerk of the Peace for Westminster, The streets upon which the property of the at the sessions held in and for the city of appellants abutted were public highways Westminster, continued to act as clerk of at the time of the passing of the special the peace at the adjourned sessions for the act, The parts of the streets adjoining county until his resignation, and received a the appellants' property had been, pre


viously to the passing of the special act, levy the rate as they have done. It is well and sufficiently paved, and otherwise no answer to say that they have once made good to the satisfaction of the Com- been in good repair. It cannot be the missioners for the time being. At the time duty of the Commissioners to inquire into of the passing of the special act, the kerbs the previous history of the public highways and gutters in the streets opposite the of the town before the local act was passed. appellants' property had become out of [Hill, J.-You would read “theretorepair, and these were repaired by the Im

fore" as

at the time of the passing of the provement Commissioners, who, in order local act.” Lord CAMPBELL, C.J.-The to defray the expenses, made a private construction contended for by the responimprovement-rate upon the appellants and dents is most unreasonable and ungramother owners of property abutting upon matical. The clause refers to such streets the said streets, under sections 53. and “as have not theretofore been” well and 156. of the general act. The appellants

The appellants sufficiently paved; that must refer to having refused to pay this rate, a summons streets that have been once sufficiently was issued, at the hearing of which they paved.] contended that they were not liable to Phipson, for the appellants, was not such rate, inasmuch as the parts of the heard. streets adjoining their property had been at one time in good repair, to the satis- Per Curiam (1)faction of the Commissioners for the time

Judgment for the appellants. being.

The question for the opinion of the Court was, whether, on these facts, the 1859. ? M'CANNON AND OTHERS v. appellants were liable to the rate.

June 10. S Scotland, for the respondents. The

Poor-Rate-Parish, Boundary of. rate is good. Section 53. enacts, that "if any street, although a public highway In beating the boundaries of the parish at the passing of the special act, have not of Rotherhithe the authorities proceed along theretofore been well and sufficiently paved the embankments, wharves, or other shore of and flagged or otherwise made good, the the river Thames, while in the adjoining Commissioners may cause such street, or parish of Bermondsey the authorities go the parts thereof not so paved and flagged along the middle of the river; the parish of or otherwise made good, to be paved and Rotherhithe has never done or exercised any flagged, or otherwise made good, in such parochial act or authority beyond the emmanner as they think fit; and the expenses bankments, fc.:-Held, that the inference incurred by the Commissioners in respect from the above circumstances was, that the thereof shall be repaid to them by the parish of Rotherhithe extended to the middle occupiers of the lands abutting on such of the river ; and that a pier built on piles street, or such parts thereof as have not in the bed of the river, opposite one of the been theretofore well and sufficiently embankments, but not connected with it, was paved and flagged or otherwise made good; rateable to the poor-rate of the parish. and such expenses shall be recoverable from such occupiers respectively as here- Case stated without pleadings, of which inafter provided with respect to private the following parts only were retained. improvement expenses, and thereafter such The action was brought to recover street shall be repaired by the Commission- 211, 18s. 9d., the amount of rates under ers out of the rates levied under this or the five several assessments to the poor-rate of special act.” Here the streets in question the parish of Rotherhithe, in the county of were public highways at the time of the Surrey, claimed to be payable to the plainpassing of the special act, and the Com- tiffs, the overseers of the parish, from the missioners have to look at their state at defendants, as managers for certain waterthat time; and if they are out of repair men of the river Thames, who, for the it is the duty of the Commissioners to cause them to be made good, and to (1) Lord Campbell, C.J. and Hill, J.

purpose of the case, were to be taken as -The only real question in the case is, the exclusive occupiers of the Commercial whether the parish of Rotherhithe extends Dock Pier, in respect of which the defen- to the middle of the river. Prima facie, dants were rated.

the boundaries of a county extend ad “The pier projects into the river Thames, medium filum aquæ, and so of a parish. and commences at and from a distance of This is not like the case of the shore of a about two or three inches away from a cer- parish adjoining the open sea. tain embankment, wharf-wall or landing- The Court then called onplace, which embankment is situate within J. Simon, for the defendants.—The onus the parish of Rotherhithe ; but whether of proving that any particular spot is in a the river front of the said embankment particular parish lies upon the parish authoforms, or is, in fact, the river boundary of rities, like the proof of any other condition the said parish, is unknown to either the precedent to the liability of the persons plaintiffs or the defendants, except in so they seek to rate. The facts, or want of far as the same may be inferable from or facts, in the present case, so far from raisdetermined by the facts. The plaintiffs, ing any presumption that the parish of however, admit that in beating the boun- Rotherhithe extends to the middle of the daries of the parish the parochial autho- river, rebut the presumption, if any such rities do not for that purpose proceed on

there be. It is admitted, that the parothe river, but along the embankments, chial authorities of Rotherhithe have never wharves, walls, landing - places, or shore exercised any parochial authority beyond abutting thereon; whereas, in the adjoin- the embankment; and the fact, that in ing parish of Bermondsey, the parochial beating the boundaries of the next parish, authorities, in beating the boundaries of the authorities proceed on the river in a that parish, go along the middle of the different manner from those of Rotherhithe, river Thames. The plaintiffs also admit is a fact from which it may be inferred that they are not aware of the parish of that the boundaries of the two parishes Rotherhithe having at any time done or are also different. But there is no preexercised any parochial acts or authority sumption that a parish extends beyond beyond the said embankments, wharf-wall, the edge of the river.

There is a preor landing-place."

sumption that the ownership of lands [The rest of the case contained details of extends beyond, or the boundary of the the formation of the pier, which was erected county, but not of a parish. The owner. in 1854, under the sanction of the corpora- ship of land between high and low watertion of London, in lieu of the floating- mark, in estuaries and navigable rivers, is pier; the pier is 203 feet long, consisting prima facie in the Crown; and the Thames chiefly of a wooden platform, which extended Conservancy Act (20 & 21 Vict. c. cxlvii.) to about 20 feet beyond low water-mark, confirms this primâ facie right in the Crown; with a floating-barge or dummy at the end. but it says nothing about parochiality. The platform is raised on wooden piers Primâ facie, therefore, the land on which fixed in the bed of the river, but no part the pier rests is extra-parochial; and in of it rests on or touches the embankment, The Queen v. Musson (1), land between being two or three inches from it; the high and low water-mark was held to dummy is moored in its place by anchors and be prima facie extra-parochial ; that no chains, and is not attached to nor touches doubt was land towards the open sea : the platform. All the profits the defen- but for this purpose there is no distinction dants derived from the pier were payments between the open sea and a navigable made by any persons using it for embark- river; and it is in addition to be observed, ing or landing from the river.]

that land between high and low waterThe question for the opinion of the mark out at sea belongs to the adjoining Court was, whether, under the circum- county, and yet, in that case, it was held stances stated, the defendants were liable primâ facie to be extra-parochial. [On to be rated in respect of their occupation the other point he admitted that, if the of the pier, or any part thereof.

(1) 27 Law J. Rep. (N.s.) M.C. 100 ; s. c. 8 E. Lush (Phear with him), for the plaintiffs. & B. 900.

Court were against the defendants on the calling on the Justices of Warwickshire to first point, The Queen v. Forrest (2) was shew cause why a mandamus should not conclusive against them.]

issue commanding them to enter continuLush observed, that in that case, it was ances to the next Quarter Sessions upon admitted that the parish of East Greenwich, the appeal of the overseers of St. Anne, which lies below Rotherhithe, extended to Westminster, against an order of two the middle of the Thames.

Justices of the borough of Birmingham,

adjudging the settlement of A. J. Potter, a LORD CAMPBELL, C.J.-At Nisi Prius pauper lunatic, to be in the parish of St. I should direct a jury to presume from the Anne, &c., and at such sessions to hear circumstances of this case, that the land on and determine the merits of the said which the pier is built was within the appeal. parish of Rotherhithe. When the beaters It appeared from the affidavits that, on of the boundaries go as near the extre- the 14th of January 1859, the appellants mity of the parish as the nature of the were served with an order of two Jusland will admit of, what more is necessary? tices of the borough of Birmingham, in They assume that it is well known that the county of Warwick, dated the 13th the parish extends to the middle of the of January, and made under the 16 river, and so the authorities of Rotherhithe & 17 Vict. c. 97, whereby the parish of (though other parishes act differently) con- Birmingham was adjudged to be the last tent themselves with keeping along the place of settlement of A. J. Potter, a dry land; and the acts of the Bermondsey pauper lunatic, then confined in the Birauthorities are rather against than in favour mingham Borough Lunatic Asylum, situate of the exemption claimed by the defen- in the said borough, to which asylum the dants, as shewing that other neighbouring said pauper had been sent from the parish parishes on the Thames extend to the of Birmingham, and where he was then middle of the river.

confined at the charge of the said parish of Per Curiam (3)

Birmingham; and the guardians of the Judgment for the plaintiffs. poor of the Strand Union, in which union

the parish of St. Anne is situate, were

ordered to pay to the respondents the 1859. THE QUEEN V. THE JUSTICES expenses incurred in respect of the said June 2. } OF WARWICKSHIRE.


On the 3rd of February notice of appeal Lunatic Pauper-Appeal against Order of Settlement of-to what Quarter Sessions

on behalf of the guardians of the Strand

Union was served on the guardians of -16 & 17 Vict. c. 97. s. 108.

Birmingham, giving them notice that the An order, under the 16 d. 17 Vict. c. 97. appellants “do intend, at the Quarter 3. 97, adjudging the settlement, &c. of a Sessions of the Peace for the borough of pauper lunatic confined in the borough Birmingham, to be holden next after the lunatic asylum, was obtained by a parish situ- expiration of fourteen days from the service ate wholly within a borough having separate of this notice, to commence and prosecute quarter sessions, and was made by two Justices an appeal against — -," &c. of the borough, the asylum being also within On the 26th of March a letter was sent, the borough :-Held, that the appeal against on behalf of the appellants, to the officers the order, under section 108, was to the of the respondent parish, requesting that county, and not to the borough, quarter the notice of appeal might be considered sessions.

as made for the Easter Quarter Sessions

for the county of Warwick. Wills, in Easter Term, obtained a rule The whole of the parish of Birmingham

is in the borough of Birmingham. The (2) 27 Law J. Rep. (n.s.) M.C. 96 ; s. c. nom. borough has separate Quarter Sessions, Forrest v. the Overseers of Greenwich, 8 E. & B. 890.

&c., under the 5 & 6 Will. 4. c. 76. (3) Campbell, C.J., Wightman, J., Erle, J. and

At the Easter Sessions for the county, Crompton, J.

no grounds of appeal having been served on the respondents, a motion to enter act expressly points out the way in which and respite the appeal was opposed on the appeal is to be heard, viz., by the behalf of the respondents on two grounds: county Justices.] first, that the appeal ought to have been T'he act must be read with regard to the to the Quarter Sessions for the borough; existing law. Why should the borough and, secondly, that, assuming the appeal Quarter Sessions have jurisdiction in one lay to the county Sessions, the appellants instance and not in the other ? Secondly, ought to have been prepared to try the the parish of Birmingham is situate both appeal, and not merely to enter and respite in the county and borough jurisdiction, it. The Quarter Sessions refused to allow and the appeal under the 3rd clause would the appeal to be entered, on the first ground, therefore be to the borough Sessions, the viz., that the appeal ought to have been asylum being within the borough. to the borough Sessions, and that the [CROMPTON, J.-The last branch of the county Sessions had no jurisdiction. section means when the parish is not wholly

Bovill and Isaac Spooner shewed cause. within one jurisdiction, but is partly in the - The borough, and not the county borough and partly in the county, then Quarter Sessions, had jurisdiction over this the situation of the asylum shall determine appeal. Under the Municipal Corporation the tribunal for appeal. LORD CAMPBELL, Act, 5 & 6 Will. 4. c. 76. s. 105, it has C.J.-" If the parish is partly in one jurisbeen decided that the borough Quarter diction and partly in another," not " when Sessions have exclusive jurisdiction to it is situate in two co-ordinate jurisdichear appeals against orders of removal tions."] made by borough Justices—The Queen v. Assuming the county Sessions to have Shropshire (Justices) (1). The present jurisdiction over this appeal, the Court will order of adjudication, which for all prac- not send this appeal down if it cannot be tical purposes is an order of removal, is tried. No grounds of appeal have been made by two borough Justices, under the served, and the appellants ought to have 16 & 17 Vict. c. 97. s. 97; and by section been ready to try at the Easter Sessions108. it is enacted that, “If the guardians

The Queen v. West Riding (Bromsgrove v. of any union or parish, or the overseers of Halifax) (3). any parish, feel aggrieved by any such [LORD CAMPBELL, C.J.-The Court is order adjudging the settlement of any clearly of opinion that the appeal under lunatic, they may appeal to the next the 108th section is to the county Sessions, general Quarter Sessions for the county in and the rule must be absolute to enter the behalf of which such order has been ob- appeal. As to respiting, that is a matter tained, or in which the union or parish (2) for the Justices in their discretion to de. obtaining the order is situate; or in case cide, and we cannot go into that question such parish or union extend into several now.] jurisdictions, then to the next gene- Wills, in support of the rule, was not ral Quarter Sessions for the county or heard. borough in which the asylum in which the lunatic is confined is situate.” The two Per Curiam (4)statutes must be read together; the juris

Rule absolute accordingly (5). diction of the borough Justices over appeals still continues, and the 108th section of the latter act must be read “county or borough in which the parish obtaining the order is situate." [LORD CAMPBELL, C.J.—The second (3) 27 Law J. Rep. (N.s.) M.C. 269

(4) Lord Campbell

, Č.J., Wightman, J., Erle, J.

and Crompton, J. (1) 2 Q.B. Rep. 85; s.c. 10 Law J. Rep. (N.s.) (5) The rule was drawn up "to enter the appeal M.C. 138.

as of the last general Quarter Sessions, and if it (2) That the parish of Birmingham obtained the shall appear to the Justices that the said appeal, order only appeared, on the affidavits, inferentially so having been entered, ought to have been respited, from the fact that the pauper was confined at the then to enter continuances to the next general expense of that parish.

Quarter Sessions."

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