BROCK v. HARRISON.

water" under the latter Act. The provision that the owner should be liable for rates in such cases was merely intended to assist the water companies in collecting their rates and do not affect the question as to who was the person supplied. The " person supplied with water" must be the person who uses the water. Section 74 of the Waterworks Clauses Act makes a difference between the two classes of persons, for it enacts: "Ifany person supplied with water by the undertakers, or liable as herein or in the special Act provided to pay the water rate, neglect to pay such water rate" then the undertakers may cut off the water. There is no privity of contract between the owners of the houses and the water company-merely a statutory obligation to pay the water rate. The magistrate has in this special case found negligence on behalf of the appellant; but this is immaterial if there is, as is contended, no duty thrown upon the appellant at all.

Macmorran, Q.C. (Montague Shearman with him), for the respondent was not called

on.

DARLING, J.-I am of the opinion that this appeal must be dismissed. I think the magistrate came to a right conclusion in holding that the appellant was a person supplied with water within the meaning of section 51 of the special Act, and was therefore liable for negligently suffering the water to be wasted. But though I think the appellant was a person supplied with water, I do not think that she was the only person supplied with water in respect of this house. It may very well be that the occupier is also liable under the section.

CHANNELL, J.-I am of the same opinion. It appears from the case that the magistrate thought the appellant was the person supplied with water. If by that he meant that she was the only person so supplied I cannot agree with him.

Appeal dismissed.

Solicitors for the appellant: Purkis and Company, for Sword and Son, Hanley.

Solicitor for the respondent: W. S. Fiske, for Knight and Sons, Newcastle-und Lyme.

63 J. P. 455.

QUEEN'S BENCH DIVISION.

May 3.

MATHER v. LAWRENCE.

Elementary Education - Employment of child by parent for "the purposes of gain "-Elementary Education Act, 1876 (39 & 40 Vict. c. 79), s. 47.

A father who keeps his daughter of the age of thirteen years from school in order that she might do the house-work at home and so enable his wife to go out and earn money, the daughter not having obtained a certificate under section 5 (2) of the Elementary Education Act, 1876, nor coming within the exemptions in the said sub-section or section 9 of the said Act, does not employ such daughter in any labour for the purposes of gain within the meaning of section 47 of the said Act so as to render himself liable to the penalty imposed by section 6. Case stated by justices in and for the county of London.

An information was laid by the appellant, a divisional superintendent of the School Board for London, against the respondent, charging that he unlawfully took into his employment one Edith Lawrence contrary to the provisions of section 6 of the Elementary Education Act, 1876 (39 & 40 Vict. c. 79). At the hearing the following facts were either proved or admitted. The said Edith Lawrence was the daughter of the respondent and was between the ages of 13 and 14 years. The respondent was a workman. His work at times was very slack and at such times he only earned two shillings a day. His wife at times went out to work and for such work received an average wage of ten shillings a week, and in order to enable her to do so he kept Edith at home during the whole of the day from November 7th to December 16th, 1898, and during such time Edith was occupied under his directions in doing the housework and preparing the meals for the family. Edith Lawrence had not obtained any certificate within section 5 (2) of the Elementary Education Act, 1876, nor did she come within the exemptions contained in the said sub-section or in section 9 of the said Act. If the said Edith had been sent to school during the time that she was SO occupied the respondent's wife would not have been able to earn any money by going out to work. It was contended for the

MATHER V. LAWRENCE.

appellant that, inasmuch as the respondent made use of Edith's services at home for the purpose of enabling his wife to earn money, he came within section 47 of the Act, which provides: "A parent of a child who employs such child in any labour exercised by way of trade or for the purposes of gain shall be deemed for the purposes of this Act to take such child into his employment," and was, therefore, guilty of the offence charged. The justices were of the opinion that the respondent did not employ Edith Lawrence in any labour exercised by way of trade or for the purposes of gain within the meaning of section 47, and they accordingly dismissed the information.

The question of law for the opinion of the court was whether they were right in their decision.

Marchant for the appellant.-The justices were wrong. It makes no difference because the gain in this case was indirect, the child was none the less employed for the purposes of gain. If the child had not been so employed by the respondent it would have entailed a direct pecuniary loss upon him, as his wife would have been unable to earn her weekly wage. The case is clearly one within the mischief of the Act, for the effect of the respondent's conduct is to keep the child away from school. It is true the respondent might also have been charged under section 1 for neglecting to provide his child with elementary education, but the charge was preferred under section 6, because under section 1 the maximum penalty that the justices can inflict for a breach of that section is so small that there is no disadvantage to the parent who incurs its penalties.

There was no appearance on behalf of the respondent.

DARLING, J.-In this case the justices have found as a fact that the respondent kept his child at home to do the house-work in order that the wife might go out and earn money, and that if the child had not been so kept at home the wife would not have been able to earn the money that she did. Under those circumstances the respondent was charged under section 6 with unlawfully taking the child into his employment, the child not having obtained a certificate of education nor coming within the other exemptions specified in section 5. Section 6 was primarily intended to deal with the ordinary case of employment of a child for gain by a

63 J. P. 455. stranger. Thus in order to prevent a parent who employed his child for the purpose of earning money from escaping the penalties of that section, merely because he was the parent, section 47 was introduced, which enacts that "a parent of a child who employs such child in any labour exercised by way of trade or for the purposes of gain shall be deemed for the purposes of this Act to take such child into his employment." I think that what was struck at by that section was the direct earning of gain for the employer, which was not the case here. It is true that the result of keeping the child at home was that someone else was set free to be employed for purposes of gain, but that is a different thing from the child itself being employed for purposes of gain. It is to be observed that the respondent might have been subjected to the penalty imposed by the Act for neglecting to send the child to school. It is said that that penalty is inadequate. If it is, that is a matter for the Legislature and not for us. The appeal must be dismissed.

CHANNELL, J.-I am of the same opinion. I think that section 47 was expressly framed to exclude the ordinary case of domestic employment of children. The real offence of the respondent here is neglecting to procure the child's attendance at school.

Appeal dismissed.

Solicitor for the appellant: Mortimer.

63 J. P. 456.

CHANCERY DIVISION.

March 29; April 12.

CHARNOCK v. COURT.

Master and servant-Trade union-Strike

66

'Watching or besetting

- Conspiracy and Protection of Property Act, 1875 (38 & 39 Vict. c. 86), s. 7. During a strike of joiners at H. the plaintiffs, who were master joiners there, engaged men from Ireland to fill the places of the strikers. On their arrival in England these men were met upon the landing stage by agents of the Joiners' Trade Union, who had been waiting for them. These agents told the imported men that if they would go to places other than H. work would be found for them, and they paid their railway fares and gave them money for their night's lodging, out of funds provided by the secretary of the trade union. sequence, many of the men failed to go to H. and work for the plaintiffs. Upon motion in an action against the trade union,

In con

Held, that what had been done by the agents of the union amounted to "watching or besetting" within section 7 (4) of the Conspiracy and Protection of Property Act, 1875, for which the defendants were liable; and an injunction was granted.

The plaintiffs in this action were all the members of the Union of Master Joiners at Halifax, and the defendants were the president, secretary, and one of the members of the executive committee of the Amalgamated Society of Carpenters and Joiners, a registered trade union. The plaintiffs claimed an injunction to restrain the defendants from watching or besetting the landing stage at Fleetwood or the railway station at Halifax, or the works of the plaintiffs or any of them, or the approaches thereto, or the place of residence of any workman employed by or proposing to work for the plaintiffs or any of them for the purpose of persuading or otherwise preventing persons from working for the plaintiffs or any of them, or for any purpose except merely to obtain or communicate information.

It appeared that in January, 1899, a strike commenced at Halifax amongst the journeymen carpenters there. In order to fill the places of the strikers the masters took steps

63 J. P. 456.

to import men from Belfast and other places. On the 20th of February, 1899, nine men were sent, through an agent of the masters, by steamer from Belfast to Fleetwood, and thence by rail to Halifax. On the 21st of February 13 other men were similarly sent, each of whom had signed an undertaking to work for 12 months upon certain terms as a non-union man for the Masters' Union at Halifax. The 13 men sent from Belfast on the 21st of February were met on the landing stage at Fleetwood by two emissaries of the Men's Union named Walker and Wadsworth, who spoke to them about the strike, and informed them that if they would go to other places than Halifax their expenses would be paid and work found for them. Walker and Wadsworth also gave some of the men railway tickets to other places, and money for their night's lodging, such expenses being defrayed out of funds provided for the purpose by the secretary of the Men's Union. In consequence of this interference of the Men's Union only four out of the 13 workmen accepted work at Halifax.

The case now came on upon motion for an injunction until the trial of the action.

Section 7 of the Conspiracy and Protection of Property Act, 1875, provides that: "Every person who, with a view to compel any other person to abstain from doing or to do any act which such other person has a legal right to do or abstain from doing wrongfully or without legal authority"... (4) "watches or besets the house or other place where such other person resides, or works, or carries on business, or happens to be, or the approach to such house or place. shall, on conviction thereof by a court of summary jurisdiction or on indictment as hereinafter mentioned, be liable either to pay a penalty not exceeding 201. or to be imprisoned for a term not exceeding three months with or without hard labour. Attending at or near the house or place where a person resides, or works, or carries on business, or happens to be, or the approach to such house or place in order merely to obtain or communicate information shall not be deemed a watching or besetting within the meaning of this section."

Upjohn, Q.C. (R. J. Parker with him), for the plaintiffs, contended that what the defendants had done amounted to "watching or besetting" within section 7 (4) of the Con

CHARNOCK v. COURT.

spiracy and Protection of Property Act, 1875, and they relied on Lyons v. Wilkins, [1896] 1 Ch. 811; [1899] 1 Ch. 255.

Jenkins, Q.C. (Godefroi and W. L. Richards with him), for the defendants, argued that railway stations and landing stages, being places to which the general public had access, did not come within the words "or other place in which he happens to be" in the subsection. The defendants had exercised no compulsion upon the men, and the court Iwould not interfere in such a case upon interlocutory motion.

Upjohn, Q.C., in reply.

STIRLING, J.-The construction of the statute has been considered by the Court of Appeal in the recent case of Lyons v. Wilkins, [1896] 1 Ch. 811; [1899]1 Ch. 255. Two points decided in that case are material for the present purpose. First of all it is decided that watching or besetting is unlawful within the meaning of section 7 (4) unless it is in order merely to obtain or communicate information; and, secondly, that watching or besetting a house or other place where the workmen are is unlawful if done in order to compel a master to do or abstain from doing what he has a legal right to abstain from doing or to do. Applying the law thus laid down to what took place on the arrival of the steamer at Fleetwood, I think, in the first place, that the attendance of Walker and Wadsworth there was with a view to deprive the masters of the assistance of workmen brought over from Ireland, and so compel them to conduct their business in accordance with the requirements of the men; secondly, I think that their attendance was not in order merely to obtain or communicate information. Walker and Wadsworth went there provided with money which was used to send the Irish workmen to other places, namely, Morecambe and Glasgow. It seems to me that they went there in order to hold out inducements to these men to go elsewhere, and that they did hold out such inducements, and attending at a place to hold out such inducements is, in my opinion, not within the proviso at the end of section 7. The next question is whether the case is within sub-section (4), which prohibits watching or besetting the house or the place where a person resides, or where he happens to be. It was known or suspected that workmen would arrive at Fleetwood by steamer on the 22nd of February. Walker and Wadsworth go there and

63 J. P. 456.

await the arrival of the steamer, and then enter into communication with the men who land. It seems to me that that is watching a place where the workmen happen to be. There is nothing in the statute which defines the duration of the watching. It may be, it seems to me, for a short time, and as to that I refer to the words in the proviso itself, which speaks of attending at or near a house or place where the person resides, or works, or happens to be. The word "attending' does not necessarily imply any lengthened attendance upon the spot; nor is there any. thing in the statute to limit its operation to a place habitually frequented by the workman, such as the house where he resides or the place where he works. On the contrary, the words "place where he happens to be" seem to me to embrace any place where the workman is found, however casually. [His lordship then held that the defendants were liable for the acts of Walker and Wadsworth, and granted an injunction restraining the defendants or their agents or persons authorised by them from watching or besetting the landing stage at Fleetwood, or any other place to which any person or persons employed or about to be employed by the plaintiffs, or any of them, might be brought.] Injunction granted.

Solicitors for the plaintiff: Helliwell, Harby and Evershed, agents for Jubb, Booth and Helliwell, Halifax.

Solicitors for the defendant: Fielder and Fielder, agents for R. Wilkinson, Halifax.

UPPERTON v. COMMISSIONERS OF POLICE.

Macmorran, Q.C. (Grain with him), represented Sir E. R. C. Bradford, Chief Commissioner of Police.

Pickersgill appeared for the appellant, Upperton.

Section 11 of the Police Act, 1890, provides that, if a constable upon retirement is dissatisfied with the pension that the police authority decides he is entitled to, the officer may appeal to quarter sessions. That is what happened in this case. Upperton, for four years prior to his retirement, had been doing permanent duty at the House of Lords, and in payment of his services he received 328. a week wages and 7s. extra as a special allowance. The Act says an officer is entitled to not more than two-thirds of his annual pay as pension money. It was argued on behalf of Upperton that, in calculating how much he should receive as pension, the whole of the money he received for permanent work in a year should be totalled up, and two-thirds of that be taken as the amount he should be paid.

Macmorran contended that the additional 78. was an allowance out of which no deductions were made towards the pension fund, and that it was in the nature of a gratuity, and not as part of his wages.

The bench upheld these arguments, and dismissed the appeal without costs, although expressing their willingness to state a case for a higher court.

The DEPUTY CHAIRMAN said the majority of the justices were of opinion that the extra 78. was a "non-pensionable allowance," and that the constable was only entitled to receive a pension calculated on the 32s. a week wages.

3 J. P. 469,

QUEEN'S BENCH DIVISION.

April 18, 19.

REG. v. FRANCIS AND ANOTHER; EX PARTE WALTON.

Metropolis-Obstruction of thoroughfareCostermonger-Metropolitan Police Act, 1839 (2 & 3 Vict. c. 47), s. 60 (7)-Metropolitan Streets Act, 1867 (30 & 31 Vict. c. 134), s. 6—Metropolitan Streets Act Amendment Act, 1867 (31 & 32 Vict. c. 5), s. 1-Police Regulations, the 28th of December, 1869.

63 J. P. 469. The penalty imposed by section 60 (7) of the Metropolitan Police Act, 1839, for exposing anything for sale in any carriageway or footway so as to cause annoyance or obstruction is not impliedly repealed or superseded by the 6th Police Regulation of the 28th of December, 1869, made under section 1 of the Metropolitan Streets (Amendment) Act, 1867 (31 & 32 Vict. c. 5). A private person who is aggrieved by such annoyance or obstruction can take proceedings by way of summons to recover the penalty imposed by the section. The magistrate has to decide as a matter of fact whether such annoyance or obstruction exists.

Rule nisi for a mandamus to a metropolitan magistrate to state a case for the opinion of the High Court.

coster

The prosecutor Broadley, who was manager to a firm of grocers at 44, St. John's-road, Clapham-junction, preferred an information against the defendant Walton, a monger, under section 60 (7) of the Metropolitan Police Act, 1839, for exposing for sale greengrocery upon the carriageway of a thoroughfare called St. John's-road, Clapham-junction, so as to cause an annoyance and obstruction. The proceedings were not instituted by any vestry, highway board, or other local authority, or by the police. At the hearing of the information the magistrate found as a fact that the defendant was carrying on his business as a costermonger, but he also found that he had caused an annoyance and obstruction in the thoroughfare. He also found that the defendant had committed a breach of the Police Regulations, the 28th of December, 1869, made under the Metropolitan Streets (Amendment) Act, 1867, and he convicted the defendant and fined him 5s. and 2s. costs.

An application was made on behalf of the defendant to the magistrate to state a case as to where section 60 (7) of the Metropolitan Police Act, 1839, applied to customers, but the magistrate refused.

The Metropolitan Police Act, 1839 (2 & 3 Vict. c. 47), s. 60 (7), enacts :

"Every person who shall expose anything for sale upon or so as to overhang any carriageway or footway .. so as to cause an annoyance or obstruction in any thoroughfare shall be liable to a penalty of not more than 408."