REG. v. STUART & PAGE. tion by means of his office, &c. If it was an offence for anyone to communicate the information, then anyone could be incited to do so, but under the statute the only person who can be incited is a person holding a certain position, and then it is necessary that he should be a person who by means of that has acquired information; that being so he can then wrongly communicate such information or be incited so to do, but he cannot commit an offence under the Act until he answers the description of the person under the Act. If the proceedings had been taken under section 1 (2) it would clearly be necessary to allege that the person had obtained possession of a document, sketch, &c. The RECORDER.-I consider all the counts are bad, as a necessary averment has not been inserted. I had some doubt at first, but the offence created by section 3 is that of inciting a person to commit an offence "under this Act," and it is clear to me now that it was necessary to put in an averment that Piper was in a position to commit the offence. The discussion is purely academical, and another indictment can be framed to meet the requirements of the statute. 63 J. P. 724. Indictment quashed. COURT OF APPEAL. October 31. NEELD v. HENDON URBAN DISTRICT COUNCIL. Highway-Dedication-Presumption- The presumption that greens alongside of highway between hedges are dedicated to use of public must depend upon circumstances of case. Held, that presumption was rebutted by evidence of acts of ownership, such as permission to enclose followed by enclosure, and license to remove soil followed by removal openly and without interruption. Appeal of defendants from judgment of Channell, J., without a jury. Action for trespass against the defendants for pulling down fence enclosing a piece of land. 63 J. P. 724. The following are the material facts : There was a piece of green sward and an ancient hedge on either side of the metalled road at Butchers-lane, Hendon. The land in question, which was between the ancient hedge and the road, was of irregular triangular shape and contained about 26 poles; the distance from hedge to hedge varied from 33 feet to 74 feet. The hedge, by which there was a ditch, was on top of a ridge which sloped down towards the road, at the side of which there was a small ditch used for the purpose of draining the metalled part of the road. The land was enclosed in the year 1874 by the erection of a post and rail fence which was re-erected in the year 1885. It was proved by the defendants that previously to 1874 the public had passed on the whole width between the hedges. The plaintiff proved that soil was removed from the surface of the land by license of the lord of the manor in the year 1864, and that the surveyor of highways took part in the enclosing in 1874. Channell, J., decided that in 1874 there were no highway rights over the land in question. The defendants appealed, and contended that the post and rail fence was an obstruction on the highway, and that they were justified in removing it. Cripps, Q.C. (Macmorran, Q.C., and J. P. Oliver with him), for the defendants.-The whole distance from old hedge to old hedge was dedicated to the public and formed part of the highway. Primâ facie and in the absence of evidence to the contrary the right of the public extends from fence to fence, and is not confined to the metalled part of the road. (Reg. v. United Kingdom Electric Telegraph Company (1862), 31 L. J. M. C. 166.) This is not a case of an exceptional quantity of green on either side of the road. It is not necessary that the whole width should be convenient for use as a highway. Channell, J., gave undue weight to the fact that the fence was erected in 1874. also cited the following cases, Rex v. Wright (1832), 3 B. & Ad. 681; Turner v. Ringwood Highway Board (1870), L. R. 9 Eq. 418; Harris v. County Council of Northamptonshire, [1897] 13 T. L. R. 440; Locke King v. Woking Urban District Council, [1897] 77 L. T. (N. S.) 790; 62 J. P. 167; Friern He NEELD V. HENDON URBAN DISTRICT COUNCIL. Barnet Urban District Council v. Richardson, 62 J. P. 547. Asquith, Q.C. (J. E. Bankes with him), for the plaintiff was not called upon. Lord RUSSELL OF KILLOWEN, L.C.J.This is an action brought by the plaintiff against the highway authority for trespass. The defendants admit the trespass but seek to justify it on the ground that the plaintiff had erected an obstruction on the highway. Channell, J., granted an injunction against the defendants and gave a small amount of damages. It is said that he has arrived at a conclusion against the weight of evidence, giving undue weight to the fact that the obstruction was erected as long ago as the year 1874. I see no ground for suggesting that undue weight was given to it. It lay upon the defendants to justify the acts complained of, and to do that it was necessary to prove that the posts and rails were standing on ground dedicated to the public for use as a highway. Their case was one of presumption, the suggestion being that because this was a road between hedges all the land was dedicated, and they cited in support the case of Reg. v. United Kingdom Electric Telegraph Company (supra). It seems to me difficult to give assent, as a general proposition, to the contention that it is safe to presume that all the land between hedges is dedicated without regard to the circumstances of each case. Something must depend upon the general state of the particular district, enclosed or unenclosed, upon the regularity or irregularity of the margins, and other circumstances. No one can tell at the present time what were the purposes or intention of the adjoining owners when this land was enclosed. This piece of land is roughly of triangular shape, and the distance between the old hedges varies from 33 feet to 74 feet. The old hedge is placed on a ridge, adjoining which there is a ditch. The ground then slopes down to the fence in question, and beyond that there is a ditch the existence of which at the time the land was enclosed seems to be undoubted; on the other side of the road there is a similar ditch, and they are both used for draining the metalled part of the road. As far back as 1872 permission was asked of the lord of the manor by one of his tenants to make the enclosure, and in 1874 the land was enclosed notoriously. 63 J. P. 724. The year 1874 was seven years after an authority was constituted to look after the highways. The fence was notoriously re-erected in 1885. No objection appears to have been made at either of these times, and this is strong evidence to rebut the presumption. There is also the fact of the removal of a not inconsiderable quantity of soil. These seem to me to be acts of ownership amply sufficient to rebut the presumption. I think the cases referred to under the Enclosure Acts do not affect the matter. I by no means intend to say that the public rights are confined to the metalled parts of road. I agree with Channell, J., that the evidence given by defendants could not be relied upon as proving public user. It is not necessary to consider the question of waste of the manor. A. L. SMITH, L.J.-I am of the same opinion. The case of Reg. v. United Kingdom Electric Telegraph Company (supra) laid down that, primâ facie and unless there be evidence to the contrary, the right of passage extends to the whole space between the fences. I accept that. In this case there is abundance of evidence to the contrary. We find that in the year 1864 the lord of the manor allowed soil to be removed from the surface of the land in question. Ten years after that the land was fenced in, and the surveyor of highways actually took part in the fencing. These acts were done notoriously. In this case there is ample evidence to rebut the presumption that the land was part of the highway. VAUGHAN WILLIAMS, L.J.-I agree that if any presumption arises in this case it is rebutted. Appeal dismissed. Solicitors for the plaintiff: Preston, Stow and Preston, for Kearey, Stolses and White, Chippenham. Solicitor for defendants: Ernest Bevir. barracks Exemption Metropolis Management Act, 1855 (18 & 19 Vict. c. 120), ss. 75, 240, 241. A building used as an armoury storehouse and drill-hall for a volunteer corps which is vested in the commanding officer, and is to be used by the corps only, is not exempt from the provisions of section 75 of the Metropolis Management Act, 1855 (18 & 19 Vict. c. 120), under the provisions of sections 240 and 241 of that Act. Case stated by a metropolitan police magistrate. This was a summons taken out under section 75 of 18 & 19 Vict. c. 120, against the defendant, who is a builder, and engaged in constructing the premises in question, alleging that he did on the 1st of March, 1899, unlawfully neglect to comply with the order of the vestry, the appellants, ordering that the lowest floor of the building and premises in the course of construction be kept at such a level as will allow it to be drained into the public sewer. The premises in question consist of a building in course of construction to be used as an armoury, storehouse, and drill-hall by the 2nd Volunteer Battalion of the Royal Fusiliers, and are vested in the usual way in Colonel Keller as commanding officer, and are intended for the use of the corps only. The complaint is that the floor of the basement, which is a long cellar running under the building, is beneath the level of the sewer. Counsel for the defence objected to the jurisdiction of the magistrate on the ground that the premises were in the same position as an ordinary military barrack, and cited the case of Pearson v. Assessment Committee of the Holborn Union, [1893] 1 Q. B. 389; 57 J. P. 169, and Jay v. Hammon, 8 E. & B. 469; 22 J. P. 527, and also referred to section 241 of the Metropolis Management Act, 1855. The prosecution alleged that the Crown is bound by the provisions of the above Act, 63 J. P. 725. and relied upon 25 & 26 Vict. c. 102, s. 116, for this contention. the The magistrate decided that, as premises were to be used exclusively for military purposes, the provisions of the Metropolis Management Act, 1855, did not apply to them, and he therefore dismissed the summons. It was admitted that the rest of the premises was sufficiently drained. The basement in question being lower than the sewer could not be drained, and probably an opening into the sewer might be a source of danger by letting sewer gas into the hall. If the vestry are entitled to interfere with these premises at all they can do so at any future time should the necessity arise. Danckwerts for the appellant.-The question in this case is whether this building need comply with the sanitary provisions of the Metropolis Management Act, 1855 (18 & 19 Vict. c. 120), for the reason that it is a building vested in the colonel of a volunteer corps, and used exclusively for the purposes of that body. This is not a case of a building belonging to the Crown. He referred to the Volunteer Act (26 & 27 Vict. c. 65), ss. 24 (4), 25, and the Volunteer Regulations, paragraph 680. The statute provides to what extent the Crown shall be exempt from its provisions. He referred to the Metropolis Management Act, 1855 (18 & 19 Vict. c. 120), ss. 75, 240, 241; the Metropolis Management Amendment Act, 1862 (25 & 26 Vict. c. 102), ss. 110, 116. The case of Pearson v. Holborn District Board of Works, [1893] 1 Q. B. 389; 57 J. P. 169, which was cited to the learned magistrate, has no application to this case. As there is in the Act an express exemption with regard to the Crown, the implication is that everything not within the exemption is granted by the Act. Avory for the respondent.-The learned magistrate was correct in his decision. This building though not directly vested in the Crown is vested in the servants of the Crown and used for Crown purposes only and that is clearly shown by the case of Pearson v. Holborn Union (supra). It is true the question there was as to rating only, but in order to ascertain that it was necessary first of all to ascertain what the position of the volunteers was. It was decided in that case that the commanding officer of a volunteer corps occupying such a position as this did so as a servant of the Crown and for UNITED VESTRIES OF PARISHES OF ST. MARGARET, &c., v. HOSKINS. the purposes of the Crown. The Crown is not bound by an Act of Parliament, unless it is expressly named in it, that is to say, the Act of Parliament must expressly include the Crown in the liability under the Act, otherwise it is exempt. In point of fact, the building has been approved and authorised by the War Office, and cannot be altered without their authority and consent. In Jay v. Hammon (supra) it was held that a building in principle just the same as this was exempt, being a building employed in fact for her Majesty's use and service. It is submitted as this is a building vested in a servant of the Crown, and used for the purposes of the Crown, it is exempt from this Act because there is nothing in the Act making the building liable to statutory provisions. GRANTHAM, J.-I am very sorry I cannot uphold the view that Mr. Avory has asked me to do, because I should be very glad indeed if we could exempt all buildings which are occupied by volunteers, and belong to them, from being interfered with by the vestries. We have heard of interference that is very objectionable in the past, and it may be that they will interfere unnecessarily in the future; still I should hope they will not do so, and if they do that the magistrates will endeavour, as far as they can, to curb them in so doing. We are asked to say whether or not the premises, being to be used exclusively for military purposes by volunteers, the provisions of the Act do or do not apply. The magistrate held they did not apply because they were to be used for military purposes. The various statutes have been brought before us by the one side and the other, and Mr. Avory very frankly says: "I base my claim on the decision that property which is owned by the militia and used for the militia, and property which belongs to the Army and is used for the Army generally, is property owned by her Majesty in right of her Crown." I quite agree with him that in all cases where the property is owned by her Majesty in right of the Crown the vestry have no right to interfere; but how can it be said that in this case this building, which has been erected by volunteers out of private subscriptions, as was the case with very many of them, and vested in the colonel under an Act of Parliament, how can it be said that 63 J. P. 725, that is owned by her Majesty in right of her Crown? We know that as a rule these buildings are erected by private subscription. They may not be in some cases. They may have a loan, that is, they may be authorised to obtain money by a loan; but it is vested in the colonel, and it cannot be said, to my mind, that it is property belonging to the Crown. It is used undoubtedly for military purposes, and under the case that has been referred to of Pearson v. Holborn Union (ubi supra), it is not liable to assessment for rates, but I do not think any case has yet gone the length of stating that, merely because it is used for military purposes, therefore it does not come under the section of the Act of Parliament which has been passed for the purpose of controlling the erection of these buildings. On the ground stated here I should be very sorry if the magistrate held the vestry had any right to interfere; but that is not what we have to determine. We have no facts before us here on which we can say whether or not they have a right to interfere. It seems to me they have built the place very properly, and there is no necessity for any alteration in it. Still we cannot tell what they might prove with regard to that; but on the very narrow ground on which this case has been argued, and on which counsel says: "I want a judg ment which will entitle all volunteers to hold all other property than land free from any control by the local authority," I know of no authority which would justify us in going to that extent. I wish I did. For that reason my judgment must be that the case must go back to the learned magistrate. LAWRANCE, J.-I have considerable doubt in this case, but I am not prepared to dissent from the judgment given. Appeal allowed. Solicitor for the appellants: Percy Gates. Solicitors for the respondent: Mackrell, Maton, Godlee, and Quincey. 63 J. P. 728. QUEEN'S BENCH DIVISION November 6. BOSTOCK v. RAMSEY URBAN DISTRICT Malicious COUNCIL. to prosecution Obstruction highway - Criminal proceedings by indictment-Not guilty. This was an action for damages for malicious prosecution, tried before Lord RUSSELL, C.J., and a special jury. The defendants, in their defence, said that they had reasonable and probable cause for taking the proceedings they did against the plaintiff, and that they acted without malice and in the bond-fide belief that they were discharging a public duty. Blake Odgers, Q.C., and P. Rose-Innes appeared for the plaintiff. Lawson Walton, Q.C., and Cooper were for the defendants. Blake Odgers, in opening the case, said that this action had arisen in the following circumstances. The plaintiff, Mr. Edward Henry Bostock, was the part proprietor of Wombwell and Bostock's Menagerie, but he resided at Glasgow and managed a menagerie which was permanently stationed there. His brother-in-law, Mr. Frank Bostock, managed a travelling menagerie, and on the occasion out of which the present dispute arose was taking the show from York to London. On the 15th of December, 1897, it arrived at Ramsey, a town situated near Huntingdon. It appeared that at Ramsey there was a broad open space, with houses on either side, called the "Great Whyte," and a market was held there every Wednesday. Lord de Ramsey was lord of the manor and had the right of levying tolls on all carts, stalls, &c., standing on the "Great Whyte" on market days. This right he had let to a lady named Miss Groomes. On previous occasions the plaintiff's menagerie had visited Ramsey and the show had been held on the "Great Whyte." Everything went on smoothly until, after the passing of the Local Government Act, the urban district council came into office. The menagerie arrived at Ramsey on the 15th of December, 1897, and the foreman saw Miss Groomes and obtained a contract from her for the use of the ground after payment of 63 J. P. 728. the fee of two guineas, and the show was set up on the "Great Whyte." An official of the district council then came and said that the show must not remain there; but he was told that a fee had been paid for the ground and was shown the space the vans would take up, after which he went away. The sbow was held, and the next morning the menagerie proceeded to London. Nearly a year after this, on the 25th of November, 1898, the plaintiff, Mr. E. H. Bostock, who had had no intimation that there had been any difficulty about the menagerie at Ramsey, received a letter from the district council informing him that they had preferred an indictment against him at the previous Huntingdon Assizes for wilfully obstructing the highway at Ramsey, and that the grand jury had found a true bill. They further informed him that the next step would be for an application to be made for a warrant for his apprehension, and they therefore suggested that he should consent to appear before a justice and be bound over to attend the next assizes. The plaintiff expressed much surprise, and said he could hardly arrange to come from Glasgow to Huntingdon to answer an offence he knew nothing about. A good deal of correspondence then passed between the clerk of the council and the plaintiff, and the latter was told that unless he was willing to come to Ramsey to be bound over to attend the assizes a warrant must issue in the ordinary way. The plaintiff wrote apologising for the obstruction, and the answer was a demand for 30 guineas for costs which had been incurred. He declined to pay this, but came down from Glasgow to Ramsey and was bound over to appear at the Huntingdon Assizes on the 16th of January. The case was tried before Wills, J., who in the course of the case expressed his opinion that Mr. Bostock was not responsible, and the jury found him not guilty. The plaintiff then brought this action against the defendants for malicious prosecution. The LORD CHIEF JUSTICE intimated that this was a case in which counsel ought to come to some agreement. Lawson Walton, Q.C., said that specific notice had been given to the plaintiff's manager not to cause the obstruction complained of. The plaintiff was called and said that he had not been to Ramsey for 13 years, and the last time he was there the menagerie was |