and then it is clear that the mode of rating contended for by the appellants is the true mode of rating to be adopted in the parish of Paddington. The Metropolitan Board of Works v. the Vauxhall Bridge Company (2) shews that no new principle of rating ought to be considered as introduced, unless the old principle is expressly altered. -[He also cited Howell v. the London Dock Company (3), Erle, J. protesting against the case being cited as an authority.] Dowdeswell, in reply. Cur. adv. vult. ERLE, J. now delivered the judgment of the Court (4). Three questions are stated at the end of the case. The first is, whether any rates, except the lighting and sewers rate, should be kept distinct from the other rates. This, we think, is answered by the Metropolis Local Management Act, 1855, s. 161, enacting that a separate rate shall be made for sewerage and a separate rate for lighting where so ordered, and a separate rate in respect of each sum ordered to be raised for defraying other expenses of executing the act, to be called a general rate, and that such respective rates shall be made in the manner pointed out in the section. We consider that the three rates here mentioned are the only rates which the vestry are authorized to make under this act, and that therefore the appellants cannot sustain their claim that separate rates should be made in respect of other matters. The second and third questions are, whether any part of the property of the company should be separately assessed, and whether any part should be exempt either partially or wholly, and to these our answer is in the negative, subject to the arrangement in respect of the lighting-rate, which was agreed on by the counsel at the time of the argument. The same 161st section enacts, that the said rates should be levied on the persons and in respect of the property by law rateable to the relief of the poor in the respective parishes, and should be subject to the same incidents as the rate for the relief of the poor in the (2) 26 Law J. Rep. (N.s.) Q.B. 253. same parishes. This enactment directs the vestry to guide itself by the rate for the relief of the poor in each parish, and no property should be separately assessed or exempt unless it is so dealt with in the poor-rate for that parish. The 5 Geo. 4. c. cxxvi. s. 118. regulates the rateability to the poor in Paddington, and makes all hereditaments whatsoever rateable to the poor in one rate without any exemption. These sections contain the direct answer to the questions now to be answered; and it is unnecessary to point out in our judgment, as was done in the argument, that the powers of the local Commissioners are transferred to the vestry, and that the power of making separate rates for separate purposes, as for watching, paving and the like, with varying exemptions for various kinds of property, as for finished and unfinished buildings, occupied and unoccupied houses, and the like, according to the different sections of the 5 Geo. 4, applicable thereto, has ceased, being superseded by the duties and powers cast on the vestry by the Metropolis Local Management Act, 1855. Subject, therefore, to the exception in respect of lighting above mentioned, our judgment is for the respondents. Judgment for the respondents accordingly. [CROWN CASE RESERVED.] 1859. Jan. 22. { THE QUEEN v. RICE AND Larceny Fixtures-Lead Gutters of Shed on a Wharf. The prisoners stole the lead gutters of some brick and timber and tile made sheds built on a wharf. The indictment charged them with stealing lead fixed to a wharf:Held, that the conviction was good, as the evidence shewed that the sheds on the wharf were part of the wharf, and that the wharf was a building within the meaning of the statute 7 & 8 Geo. 4. c. 29. s. 44. The following CASE was reserved and stated by the chairman of the Surrey Sessions. Lord Campbell, C.J., Martin, B., Crowder, J., Willes, J. and Watson, B. At the General Quarter Sessions of the Peace holden by adjournment at Saint Mary, Newington, in and for the county of Surrey, on Monday the 19th of July, in the year of our Lord 1858, Samuel Rice, Timothy Foley, Benjamin Johnson and John Preedy were tried and convicted under an indictment containing the two following counts, and a count laying previous convictions. Surrey. The jurors for our lady the Queen, upon their oath, present that Samuel Rice, Timothy Foley, Benjamin Johnson and John Preedy, on the 26th of June, in the year of our Lord 1858, 850 lb. weight of lead, the property of William Randall Wood, then being fixed to a certain wharf of the said William Randall Wood, situated in the parish of Wandsworth, in the county of Surrey, feloniously did steal, take and carry away, against the form of the statute in such case made and provided. Second count.-And the jurors aforesaid, upon their oath aforesaid, do further present that the said Samuel Rice, Timothy Foley, Benjamin Johnson and John Preedy, on the same day and year aforesaid, 850 lb. weight of lead, the property of William Randall Wood, feloniously did steal, take and carry away, against the form of the statute in such case made and provided. From the evidence given on the trial of the prisoners, it was proved that the lead stolen formed the gutters of two sheds on the wharf of the prosecutor, which sheds were constructed of brick, timber and tiles, with lead gutters. At the trial, the jury found a general verdict of guilty against all the prisoners upon both of these counts above set forth, and the Court reserved the following points for the consideration of the Justices of either Bench and Barons of the Exchequer:First, whether the allegation in the first count, that the lead was fixed to a wharf, is sufficient to shew that it was fixed to a building within the meaning of the sta tute 7 & 8 Geo. 4. c. 29. s. 44? And, secondly, could the prisoners be convicted on the second count of simple larceny, there being no evidence of the stealing of any other lead than that which had been affixed to the wharf? NEW SERIES, XXVIII.—Mag, Cas. The Court postponed judgment, and committed the said Samuel Rice, Timothy Foley, Benjamin Johnson and John Preedy to prison, until the questions above mentioned shall have been considered and determined. Laxton, for the prisoners.-There is a variance between the indictment and the evidence. The indictment alleges that the prisoners stole some lead fixed to a wharf. A wharf means a place for unloading ships on the bank of a river, a plain, flat surface adjoining a river-Webster's Dictionary. Here the lead was not fixed to the wharf, but to a building on it. Warehouses are often built on wharfs; but stealing lead fixed to those buildings. could not properly be described as lead fixed to a wharf. Here the lead fixed to the shed is not fixed to the wharf. In The Queen v. Worrall (1) a shed was held to be a building. Secondly, the indictment is bad, for it does not allege stealing lead affixed to a building. It states the lead to have been fixed to a wharf. Now a wharf is not a building; at any rate it may not be a building. Floating wharfs are common. There is clearly no evidence to support the count for simply stealing lead. Knapp appeared for the Crown, but was not called on. LORD CAMPBELL, C.J.- It must be taken on the facts of this case that this shed, which is composed of brick, timber and tiles, is a shed on a wharf fixed to the soil, and not, as suggested, on a floating wharf. The shed must be considered part of the wharf. It is enough if the indictment alleges that the lead is fixed to that which may be a building, and which is proved by the evidence to be a building. Here it is clearly proved that the lead is fixed to a building. The conviction, therefore, is good on the first count. CROWDER, J.-I concur, on the ground that the lead stolen was lead fixed to two sheds, which must be taken to be part and parcel of the wharf itself. WILLES, J.-No conviction could have taken place, unless it had been proved that the lead had been fixed to a wharf, (1) 7 Car. & P. 516. K which was a building within the act. They cannot, of course, be convicted on the count for the simple larceny. MARTIN, B. and WATSON, B. concurred. Conviction affirmed. [CROWN CASE RESERVED.] 1859. (THE QUEEN v. CUNNINGHAM, Jan. 15. BROWN AND SUMNERS. High Seas-Felony on Board Ship in Bristol Channel-Admiralty-Jurisdiction -Venue. The Bristol Channel between the shores of Glamorganshire and Somersetshire, where it is about ten miles across, and where the one shore is visible from the other on a clear day, is within the bodies of the counties by which it is bounded. Therefore, where a felony was committed on board a ship in this part of the Bristol Channel, about three quarters of a mile from the Glamorganshire shore, it was held that the offence was committed within the body of the county of Glamorgan. An indictment charged three prisoners with felonious wounding with intent to do grievous bodily harm; the jury found two guilty of the felony alleged, and the third guilty of the misdemeanour of unlawfully wounding the conviction was held good. The following CASE was reserved at the Summer Assizes for the county of Glamorgan by Crompton, J. The prisoners, who were stated by the prosecutor's counsel in his opening to be American subjects, though no proof was given of that fact, were indicted before me, at the Summer Assizes for the county of Glamorgan, for feloniously wounding Edward Riley, in the county of Glamorgan, with intent to do him some grievous bodily harm. Cunningham and Sumners were convicted of the felonious wounding, and Brown of the misdemeanour of maliciously and unlawfully wounding. The prisoners were the three mates of the * Coram Cockburn, C.J., Wightman, J., Williams, J., Channell, B. and Hill, J. American ship Gleaner, and Riley was a seaman on board the said ship. The Gleaner sailed from the docks of Cardiff on the 29th of May last, and proceeded to an anchorage ground in Penarth Roads, where she anchored in eleven fathoms. The offence in question took place shortly before she arrived at the above-named anchorage ground, and when the ship was three quarters of a mile from land, in a place never left dry by the tide, but she was within a quarter of a mile of the land which is left dry by the tide. The shore of the county of Glamorgan extends many miles up and down the Bristol Channel from the place where the offence was committed. The spot in question was in the Bristol Channel between the Glamorganshire and Somersetshire coasts, and was about ten miles or more from the opposite shore of Somersetshire. Penarth Roads are ordinary roadsteads for ships coming into Cardiff, or calling there for orders, and large vessels anchor there. Two islands, called the Flat and Steep Holms, are outside the anchorage ground, and further from the shore than it is, but not lower down the Channel, being abreast of the anchorage ground. It is about ninety miles from Penarth Roads to the mouth of the Channel. The ship was inside and about two miles from the Flat Holms, and four or five from the Steep Holms, and was within Lavernock Point in Penarth Roads, but outside Penarth Head. Penarth Head and Lavernock Point form a bay. It is three miles from Lavernock Point to Penarth Head; persons can see from one to the other, and could see what a vessel was doing from one to the other, but could not see the people from one to the other. From where the ship was persons could see people at Lavernock, and see what they were doing if they took particular notice of them, and they could see the coast of Somersetshire on a clear day. Flat Holms, Cardiff, Lavernock and Penarth are laid down properly in a map shewn to one of the witnesses, a pilot, from a map of counties, but Steep Holms is laid down too far to the west there. The mouth of the Severn was proved to be at King's Road, higher up the Channel, and that is to be taken as the finding of the jury. A person who had been clerk to the borough Magistrates of Cardiff for five years, stated in his evidence that he knew the Holms; that they are part of the parish of St. Mary's, Cardiff; that he had issued a warrant for poor-rates there; that he never executed any such warrant; they were given to the overseers. And a collector of the income-tax of the said parish stated, that he knew the Flat Holms, and that he had collected taxes from the occupiers of the Flat Holms for St. Mary's parish. The Gazette of Tuesday, the 4th of January 1848, was put in, containing an order of the Lords Commissioners of Her Majesty's Treasury, whereby the limits of the Port of Cardiff were to commence at the river Rumney, and continue along the coast of the county of Glamorgan to a place called Nash Point in the said county, and that the limits seaward of the said port should extend to a distance from low water-mark of three miles into the sea, including all islands, rivers and creeks within the said limits. The place in question was within these limits. It was proved by a witness that the Port of Cardiff extends to the Nash Point, eighteen miles lower down the Channel than the place in question. Ships hail from Lavernock to the Port of Cardiff. The Nash is marked with a cross in the county map above referred to, and is two miles from St. Donats, and Lavernock is the place marked Aberthaw in that map, and is under the Custom House at Cardiff. A true chart of the places inside the Penarth Head accompanies this case. All in the chart is in the Port of Cardiff. A pencil X on the chart shews the place where the offence was committed, at the mouth of the river Ely, being a quarter of a mile to sea beyond low water-mark, but in the Port of Cardiff. A ship anchoring there would not pay harbour dues, and the place is not a harbour, but a roadstead. A clerk in the Cardiff Custom House stated that he knew the limits of the Port of Cardiff as read from the Gazette; that the officers of the Customs of the Port of Cardiff act within these limits in every way that their duty requires. But he said, on cross-examination, that he was a clerk, and had executed no official duty except at the office; that the creek of Aberthaw was in the Port of Cardiff, and that he had attended with the Comptroller at a survey on that creek, but he did not appear to have personally seen any other exercise of jurisdiction within the limits. The indictment charging the offence to have been committed in the county of Glamorgan, and not being framed under the 7 & 8 Vict. c. 2. as it contained no averment, according to the 2nd section, that the facts had taken place "on the high seas," the question arose whether the prisoners could properly be convicted of the offence in the county of Glamorgan upon so much of the above facts as were properly admissible in evidence against the prisoners; and there was a further question, whether the prisoner Brown could be properly convicted of the misdemeanour of unlawfully wounding on the same count upon which the two other prisoners were found guilty of the feloniously wounding. I sentenced the prisoners Cunningham and Sumners each to six years' penal servitude, and the prisoner Brown to eight months' hard labour, and they are now in confinement under such sentence. I reserved for the consideration of this Court the two questions, first, whether the prisoners were properly convicted of an offence in the county of Glamorgan; and secondly, whether the prisoner Brown was properly convicted of misdemeanour. H. Giffard, for the prisoners (Nov. 13). -The conviction cannot be supported. The offence was not committed within the body of the county of Glamorgan, as alleged in the indictment, but on the high seas, out of the county, and within the jurisdiction of the Lord High Admiral, at common law. The limit between the jurisdiction of the Admiral and that of the county is well defined. The county jurisdiction extends to low water-mark on the sea shore, when the tide is out, and the Admiral's to high water-mark when the tide is in- Constable's case (1). It is found here that the offence was committed on the sea, three-quarters of a mile from the shore. It is true some portions of the sea, such as creeks, arms, bays, are or may be within the body of a county, when (1) 5 Rep. 107. you can see from shore to shore-Lord Hale, de Jure Maris, c. 4. But in 2 Hawkins, P.C. c. 9. s. 14, this is stated to be confined to cases where a man, standing on one side, can see what is done on the other; and East supports this more limited construction-see 2 East, P.C. c. 17. s. 10. p. 804. Here the case finds that the vessel was outside the bay formed by Penarth Head and Lavernock Point. Where the Admiral has jurisdiction the county has none, and vice versá-4 Inst. c. 22, except in cases where, by statute 15 Rich. 2. c. 3, a concurrent jurisdiction is given to the Admiral with respect to murder or mayhem done in great ships hovering in the main stream of great rivers below the first bridges-The King v. Bruce (2),—or where extended jurisdiction is given by other statutes. The fact that the Holms were part of the parish of Cardiff does not assist the case. A portion of a parish may often lie in two counties, and even if the islands be in the county, it does not follow from that that the sea between them and the shore is in the county. There is no presumption that the county extends beyond low water-mark-The Queen v. Musson (3). [WIGHTMAN, J.-Is not the sea between the Isle of Wight and Hampshire all within the county of Southampton?] Even if it be, the positions of the land and sea are here very different. The extent of the Port of Cardiff has no bearing on the case. [WILLIAMS, J. referred to The Attorney General v. Parmeter (4). COCKBURN, C.J. -Does not the jurisdiction of the county of Glamorgan extend to the medium filum aquæ between Glamorganshire and Somersetshire? Is not the whole of the Bristol Channel between those counties within the limits of England?] There is no authority for treating an arm of the sea of the size of the Bristol Channel as a river, and applying to it the rule as to medium filum aquæ. It is part of the high seas-The Twee Gebroeders (5). Commissions used in old times to issue (2) 2 Leach, 1093. (3) 27 Law J. Rep. (N.s.) M.C. 100. (4) 10 Price, 378. (5) 3 Rob. Adm. 339. for trying offences committed within the marina Angliæ, probably, with respect to such arms of the sea as this. Secondly, the jury had no power to find that two prisoners had a felonious intent of wounding with intent to do grievous bodily harm, and that the other prisoner wounded, but without such an intent. Bowen, for the prosecution.-Even if the offence was committed on the high seas within the jurisdiction of the Admiralty, it is sufficient to allege that it was committed within the county of Glamorgan, by statutes 7 & 8 Vict. c. 2. s. 2, and 14 & 15 Vict. c. 100. s. 23. The latter statute prevents the necessity of alleging the venue any longer in the body of the indictment The Queen v. Jones (6). Secondly, the offence was committed within the body of the county of Glamorgan. Penarth Roads, where the ship was lying, is a creek within the county. It is part of the Port of Cardiff. The authorities shew that narrow arms of the sea like the Bristol Channel are within the county jurisdiction, and do not form part of the high seas-2 East, P.C. 802; 2 Hale, P.C. 12. H. Giffard replied. Cur. adv. vult. COCKBURN, C.J.-In this case we are of opinion that the conviction is right. The only question with which it becomes necessary for us to deal is, whether the part of the sea on which the vessel was at the time when the offence was committed forms part of the body of the county of Glamorgan ; and we are of opinion that it does. The sea in question is part of the Bristol Channel, both shores of which form part of England and Wales, of the county of Somerset on the one side, and the county of Glamorgan on the other. We are of opinion that, looking at the local situation of this sea, it must be taken to belong to the counties respectively by the shores of which it is bounded; and the fact of the Holms, between which and the shore of the county of Glamorgan the place in question is situated, having been always treated as part of the parish of Cardiff and as part of the county of Glamorgan is a (6) 1 Den. C.C. 101. |