ROWLANDS v. MILLER. of their turning pirates and of great detriment to trade and navigation, and is chiefly occasioned by the owner or owners of ships or vessels paying wages to the seamen or mariners when abroad, be it enacted by the authority aforesaid that no master or owner of any merchant ship or vessel shall pay or advance, or cause to be paid or advanced, to any seaman or mariner, during the time he shall be in parts beyond the seas, any money or effects upon account of wages exceeding one moiety of the wages which shall be due at the time of such payment, until such ship or vessel shall return to Great Britain or Ireland, or the plantations or some other of Her Majesty's dominions whereto they belong, and from whence they were first fitted out; and if any such master or owner of such merchant ship or vessel shall pay or advance, or cause to be paid or advanced, any wages to any seaman or mariner above the said moiety, such master or owner shall forfeit and pay double the money he shall so pay or advance, to be recovered in the High Court of Admiralty by any person who shall first discover and inform of the same." Now, I think reading that as a whole, and noting that the object is to prevent desertion, that it does not apply to the terms of the engagement of seamen abroad. It applied to seamen already on the ship on its touching at the foreign port, and it forbids payment to them there of more than half of the money which has then become due to them in respect of the outward voyage, and the advancing to them of any future wages with the object of giving the seamen substantial inducement to remain on the ship for the homeward voyage. I do not think the enactment prevented a master from engaging a man in a foreign port on the terms that he should be paid so much money down on joining the ship, and the balance at the end of the voyage. That might be the only means of replacing deserters, and it would not increase pirates. Even if this view is wrong, I think the only consequences of a breach of the enactment would be that an informer might sue in the Admiralty Court. The case would probably come within the rule that where an enactment and a penalty for the breach of it are contained in the same clause, the penalty is the only remedy for the breach, but in any case it seems to me that it would be impossible for a seaman who had been paid in a foreign 63 J. P. 407. port a sum in excess of the moiety allowed by that enactment to sue successfully on his return to this country for his whole wages. That would make the sum forfeited the sum paid to the seaman as well as forfeiting double the sum to the informer, or treble the sum altogether. I think, therefore, that this enactment does not forbid an advance to a seaman engaged abroad, and, further, that if it did it would not enable a seaman to recover the sum advanced again as unpaid wages but will merely enable him or any other informer to recover double the money as a paid sum in the Admiralty Court. Next I will deal with the 163rd section of the Merchant Shipping Act, 1894. This is as follows:-" (1.) As respects wages due or accruing to a seaman or apprentice to the sea service (a), They shall not be subject to attachment or arrestment from any court; (b) An assignment or sale thereof made prior to the accruing thereof shall not bind the person making the same; (c) A power of attorney or authority for the receipt thereof shall not be irrevocable; and (d) A payment of wages to the seaman or apprentice shall be valid in law notwithstanding any previous sale or assignment of those wages, or any attachment, encumbrance, or arrestment thereof. (2.) Nothing in this section shall affect the provisions of this Act with respect to allotment notes." It is contended that subsidiary sections (b) and (c) of this section in effect make advance notes void as against the seaman, and further that even, if that is not so in all cases, at all events the transactions described in this special case were invalid. It is convenient to consider first the general question and then see how far the present case differs from the ordinary one. Advances and advance notes have been known for many years, and have been for many years the subject of legislation. They have been dealt with in a separate part of this statute, and it is unlikely that it would have been intended to alter the effect of that part of this statute by this section coming in a later part and not mentioning advances. Sub-section(2)saves allotment notes under the Act from the operation of the section, and it was necessary to do so as they are clearly assignments. If advance notes were written, one would expect that the advance notes authorised by section 140 (1) would be excepted, but they are not. Now it seems clear that, unless section 140 does so, there ROWLANDS. MILLER. is no section of this Act nor in any other Act (other than that of Geo. 1, which I have dealt with) which in any way forbids a contract by a master with a seaman whom he engages abroad to pay a sum on account of his wages immediately on his joining the ship. Section 163 could only touch payments not to the seaman but to someone on his behalf and by his order, and then only if the transaction was an assignment of the seaman of wages before they had accrued due or an authority to receive wages. Now, advance notes are not mere assignments. The master generally makes himself liable conditionally to a third party, the holder of the note. It is true that it has been held in Cardiff Association v. Cory, 9 T. L. R. 388, that advance notes promising to pay the seamen, "or order," are not negotiable instruments because they are conditional. But they may be so framed as to be payable directly to the third person either by name or on his fulfilling a condition. (See Mac Kune v. Joynson, 5 C. B. N. S. 228.) I think that advance notes signed by the master in any of the usual forms cannot be considered merely as assignments by the seamen. There is another ground on which they might be considered as not coming within section 163. Section 163 relates, according to its heading, to " wages due or accruing due"; now wages cannot strictly be considered to be accruing ' until the service has commenced. Consequently a sum contracted to be paid when the seaman ships on board, and conditionally upon his so shipping, cannot in strictness be said to be a sum which before he ships is "accruing,"notwithstanding that if it becomes payable it is to be taken into account as part of his wages. This is perhaps somewhat fine, but to hold that section 163 is confined to dealings with wages after the service has commenced brings about a result which accords with what appears to be the scheme of the Act, and leaves advances and agreements as to advances made upon the commencement of the service to be governed by the earlier sections of the Act. On the whole I come to the conclusion that advance notes signed by the master and in an ordinary form are not struck at by section 163, and that our decision in Ritchie v. Larsen (supra) was correct. Before dealing with the facts of the present case there is another point to be noticed in reference to section 163. It 63 J. P. 407. does not contain the words which are in section 140 that money paid under the documents referred to shall not be deducted from the seaman's wages, and that a person paying shall have no right of action or setoff against the seaman. I think, therefore, a payment made under an assignment before it is avoided, or a power of attorney or authority before it is revoked, must be good. Take sub-section (c) as to powers of attorney not being irrevocable. That would seem to mean that they should not be irrevocable by reason of the party in whose favour they have been given having an interest in the money, but not that they should be revocable after payment had been made under them. In the same way I think assignments under sub-section (b) which are declared not binding on the seaman must be voidable only, and not void, and consequently could not be avoided after they had been acted on. This latter point might perhaps be doubtful inasmuch as the master paying must necessarily have notice of the invalidity if it exists, as it is created, if at all, by the statute. Now to deal with the facts of the present case. The case first states that it was one of the terms of the engagement of the respondent by the appellant that he should receive an advance of $40. At common law such a contract would of course be good, and I have failed to find any statute forbidding it. The case then states that thereupon a document set out in the case was made out. It is dated the 11th of April, 1898, and it purports to state that the respondent admitted having shipped. Probably, however, he had not done so, as it appears from the next paragraph that he did not get his outfit until after signing. The document was signed by the appellant. The facts are not at all clearly stated, and the documents are not easy to construe. The documents, however, whether an assignment or not, and whether an assignment of wages made before they had accrued due, appear certainly to amount to an authority to receive the money. The case states in the early part that there was no evidence of payment, but Mr. Horridge for the appellant contended that later on in the case the magistrates had assumed the payment and had decided the case on the assumption that the $40 had been paid to Herman, and although Mr. Johnson at first contended the contrary, upon our proposing ROWLANDS v. MILLER. to send back the case to the magistrates to clear up this, he elected to argue the case upon the footing that the money had been paid to Herman. That being so it seems to me that the $10 which by a valid contract between the respondent and the appellant was to be paid to the respondent was paid to Herman by the respondent's actual authority. It is stated that the respondent made no objection, and there is nothing to indicate that he did so until long after it was paid, if ever it was paid. Under these circumstances it seems to have been a valid part payment of his wages, and there is nothing in the statute empowering him to recover it over again. If we were to assume that the money was not paid, but that the appellant was merely relying on a supposed liability to Herman, I should have great doubt in this case. I do not think the facts stated in this case show a liability of the respondent to Herman. The respondent not having signed the document was not directly pledged by it to pay. It is doubtful whether it is an assignment, and if an assignment whether it is an assignment of a debt already due or of accruing wages, which had not at the time actually accrued. If it had not been agreed that we should decide the case on the assumption that the money had been paid I should think it necessary to remit the case to the magistrates to find further facts. As it is, I think the appellant was entitled to deduct the whole sum paid, and that judgment should be given for the appellant, The answers to the three questions put in the case should be: (1) The magistrates were not right in allowing a deduction of one month's wages only; (2) Section 163 does not prohibit advances at all; (3) There is no limit to advances made abroad, and in this case, on the facts agreed, the payments were by the respondent's authority, and binding upon him. Judgment is that the appellant is entitled to deduct a further 41. 2s. 10d. beyond the deduction allowed by the magistrates, and the respondent must pay the costs. Appeal allowed. Solicitors for the appellant: Walker, Son and Field, for Botterell, Roche and Temperley, Newcastle-on-Tyne. Solicitors for the respondent: Pattinson and Brewer, for Robert Jacks, South Shields. 63 J. P. 420. QUEEN'S BENCH DIVISION. April 12. GREATER LONDON PROPERTY CO. v. FOOT. - Metropolis - Sewer Drain Combined operation - No order of the vestrySignature of surveyor Metropolis Management Act, 1855 (18 & 19 Vict. c. 120), s. 250. It being customary to treat as duly sanctioned by the vestry any drain for draining a group of houses by a combined operation, if the plan has been included in the register of applications in that behalf, and has been duly signed by the surveyor of the vestry, no formal order of the vestry need be made in order to constitute such drain a drain and not a sewer within the meaning of the Metropolis Management Act, 1855, and any subsequent alteration of the course of such drain, not so as to increase the number of houses drained thereby, but merely to improve the flow of drainage through it, cannot change it into a “sewer.” Case stated by a metropolitan police magistrate. The appellant was summoned to abate a nuisance arising in connection with the drainage of his house. The nuisance was admitted, but the appellant contended in answer to the summons that the pipe whence the nuisance arose was a sewer repairable by the vestry and not a drain repairable by himself. It was proved that the register containing applications to the vestry by persons desirous of draining houses by a combined operation contained a plan relating to the house in question, and to other houses adjoining, belonging to the same owner, and showing the proposed scheme of combined operation. The plan was signed by the surveyor and dated the 27th of June, 1879. The register contained no formal order of the vestry approving of the plan, but it was the practice to treat a plan so signed as being approved without drawing up a formal order. The plan showed a pipe, draining 11 houses, which pipe was under the house adjoining No. 238. It was found that this pipe had in fact been carried under the house No. 238, instead of under the adjoining house. The effect of the alteration was to get rid of a bend which the pipe would otherwise have made, and so to give it a better flow. The GREATER LONDON PROPERTY Co. v. FOOT. fall, also, was increased, as, by its new course, the pipe entered the main sewer at a point lower down. There was nothing on the register to show that this alteration was sanctioned by the vestry. It was from the pipe of which the course was so changed that the nuisance complained of arose. The magistrate held that the pipe was a drain within section 250 of the Metropolitan Management Act, 1855, for which the appellant was responsible, and made the order. Section 250 provides :-"The word 'drain' shall mean and include any drain of, and used for the drainage of, one building only, &c. . . . and shall also include any drain for draining any group or block of houses by a combined operation under the order of any vestry or district board; and the word 'sewer' shall mean and include sewers and drains of every description except drains to which the word drain, interpreted as aforesaid, applies." 66 Packard for the appellant.-Every pipe which carries off drainage from more than one house is de facto a sewer, unless it forms part of a combined system of drainage sanctioned by the order of the vestry. In the present case no order" of the vestry has been made, therefore the pipe in question is a sewer and not a drain. If it is assumed that such an order has been made there has been a deviation from the authorised plan, which was not sanctioned by the vestry, and which, therefore, alters the character of the pipe. He cited Vestry of St. Matthew, Bethnal Green, v. London School Board, [1898] A. C. 190; 62 J. P. 116; Kershaw v. Taylor, [1895] 2 Q. B. 471; 59 J. P. 516; Geen v. Vestry of St. Mary, Newington, [1898] 2 Q. B. 1; 62 J. P. 564. Avory for the respondent.-The cases cited only go to show that there must be evidence of an order made by the vestry, and that the drain ceased to be a drain and became a sewer if the drainage of other houses is introduced into it. There is evidence here of an order by the vestry, which order, if there was one, sanctioned a system of drainage, and not a particular line of pipes, which could be altered at will. DARLING, J.-We are asked in this case to decide whether the learned magistrate was right in holding that the pipe in question was a drain and not a sewer. The question has arisen mainly under section 250 of the 63 J. P. 420. Metropolitan Management Act, 1855 (18 & 19 Vict. c. 120). That section provides that, besides ordinary drains, other things were to be included in the definition of "drains "namely, pipes receiving the drainage of a group of houses under a combined operation sanctioned by the vestry. In this case it is contended on behalf of the respondent that the pipe is a drain because it drains a group of houses by a combined operation under an order of the vestry. The pipe certainly drains a group of houses. Is the system of drainage one that was constructed under the order of the vestry in accordance with the section of the Act? The plans were deposited and signed by the surveyor, but no formal order was made by the vestry. It was proved that it was not the practice to make an order, but to consider the signature of the surveyor as the order. It is only necessary to refer to the case of Geen v. Vestry of St. Mary, Newington (supra), to see that the drainage was, under the circumstances, constructed under the order of the vestry. It has been contended, however, that the operation has not been carried out in accordance with the plans, and that the position of the pipes had been altered. But it further appears that the pipe would have drained precisely the same number of houses in whichever position it was laid, and the cases cited to show that such an alteration operated to make the pipe a sewer and not a drain are not cases of a mere slight deviation, such as this was, but are cases where a group of houses which drained into the pipe were interfered with so that more houses were made by the alteration to drain into it than before. If in the present case another house had been added to those already draining into the pipe our decision might have perhaps been different, but here the only effect of the alteration was to improve the flow by straightening the course of the pipe and by increasing the fall. The alteration in no way changed the character of the pipe, and the pipe, in fact, remained practically the same as before. The alteration was made obviously for the purpose of convenience. A deviation of a foot or two of one of the pipes will not matter, providing the scheme is practically the same as that laid down in the order. This pipe was originally a drain, and it continued to remain so. This appeal must, therefore, be dismissed. GREATER LONDON PROPERTY Co. v. FOOT. CHANNELL, J.-I am of the same opinion. By the definition of section 250 of the Metropolitan Management Act there were taken out of the term "sewer" not only ordinary drains, but also pipes which drained a group of houses by a combined operation, effected under the order of the vestry. When such an order is obtained the pipes become drains of the separate houses in which they are situated. There is just as much power in the owner of the whole group of houses (where they belong to one owner) as there would be in each of the owners where they are owned separately to alter the course of the drains if it is convenient for him to do so. In the present case it is not known whether the alteration was made at the time of the order or afterwards. Whichever was the case, the alteration does not turn the pipe into a sewer. In all the cases cited to show that a deviation changed the character of the pipe, they were all cases in which an addition had been made to the group of houses drained. Here there was an order to drain a group of houses and no addition has been made to that group. Appeal dismissed. Solicitor for the appellant: Stanley Evans and Company. Solicitors for the respondent: Robert Voss. 63 J. P. 421. QUEEN'S BENCH DIVISION. April 13. BROWN v. PATCH. Betting-"Place"-User-Betting Act, 1853 (16 & 17 Vict. c. 119), ss. 1, 3, 4. A bookmaker who localises his business on a race-ground by setting up upon a certain spot in it a structure to carry a board advertising his name and the nature of his business, and by carrying on his business standing on a box near such structure, and there inviting people to bet with him, uses the place where his business is so localised contrary to section 1 of the Betting Act, 1853, and it is immaterial that he has no exclusive right of user of that or any other portion of the race-ground. Case stated by justices of the peace in and for the county of Dorset. 63 J. P. 421. 1. At a petty sessions holden at Blandford, in the county of Dorset, on the 16th of October, 1897, the respondent, Robert Patch, was summoned on the complaint of the appellant, George Brown, an inspector of police of the county of Dorset, for that he, the respondent, on the 8th of September, 1897, at the parish of Farnham, in the county of Dorset, being then a person using a certain place, to wit, a particular part of the enclosure known as "The Larmer Tree Grounds," within the said parish of Farnham, unlawfully did use the said place for the purpose of betting with persons resorting thereto, upon certain events and contingencies of and relating to certain horse and other races. At the hearing of the said complaint the following facts were proved : 2. In the parish of Farnham, in the county of Dorset, are situated certain enclosed grounds known as "The Larmer Tree Grounds." Once a year a meeting for horse and other races is held in these grounds by permission of the owner. 3. On the 8th of September, 1897, a race meeting was held in the said grounds at which several thousands of persons were present, among them being some six bookmakers or professional betting men with their clerks. All these persons, including the bookmakers and their clerks, were admitted without payment to all parts of the grounds. 4. The respondent is a bookmaker, and he entered "The Larmer Tree Grounds" with his clerk about 12.30 p.m. on the 8th of September, 1897. The two men erected on the ground a structure of which the following is a description. It was made of bamboo cane with four legs or supports, two in front, and two at the back fastened together in front. It was five or six feet high from the ground to the top. On the top of this structure there was a board on which was painted in gilt letters the words "Bob Patch, London. All in run or not, pay first past the post." Below the board was a canvas, screen, or banner some distance off the ground, and the words "Bob Patch, London," were on the canvas. The respondent placed a wooden box or stool close to the right-hand side of the structure. 5. From time to time during the day the respondent stood on the box or stool and shouted the odds against the different horses or bicyclists running in the different races |