LONDON COUNTY COUNCIL v. GUARDIANS OF THE POOR OF THE WEST HAM UNION. does not come within the Tipton case at all. The reason why the pauper in the Tipton case lost his birth settlement was because he had been born in a parish which had passed away. This pauper was born in West Ham, and West Ham has not passed away in my opinion. West Ham has been amalgamated with a small portion of another parish which has been joined to it and amalgamated with it, but West Ham, in my judgment, still remains, and the parish in which the pauper was settled still remains, although the boundaries of it have been enlarged. Now what happened in the other cases seems to be immaterial. The case which is material is the case of Reg. v. St. Martin's, New Sarum (supra). There the pauper gained a settlement in parish J., and afterwards, by Act of Parliament, that parish was united for all but ecclesiastical purposes with parish B. by the title of the united parishes of J. and B., and it was held that the pauper was settled in the united parishes. That would have been an authority, it seems to me, for this, that if all West Ham and all Wanstead parishes had been joined together with the title of the united parishes of West Ham and Wanstead, the paupers of both would have kept their settlements in the united parishes. But what has happened here is that a portion has been taken off Wanstead and amalgamated with West Ham. Has that destroyed West Ham so as to bring it within the Tipton case? I do not think so. It may have destroyed the old parish of Wanstead, and by reason of the Tipton case the paupers settled in Wanstead may have lost their settlements, but although one may think that that is so, I do not see that that forces us to extend the doctrine which was reluctantly accepted by the judges in many cases, which is laid down in the Tipton case, to say that a parish is destroyed or has ceased to exist when you take a part of something else and add that part to it. It is quite enough to say that the Tipton case settled that if you took that something away from the parish that you destroyed that parish, but no one yet says that adding something to a parish equally destroys it. Then there is the authority of Reg. v. St. Martin's, New Sarum (supra), for saying that adding something to a parish does not destroy either of them. It seems to me, therefore, that this case is not brought within the rule which has been laid down in the 65 J. P. 358. Tipton case, and unless it comes within that rule the pauper is not deprived of her settlement, and for that reason I think the London County Council succeeds as against the parish of West Ham, where the pauper still remains, in my judgment, settled. CHANNELL, J.-I am of the same opinion. It seems to me to come to this that where settlements have been acquired in a parish and that parish is destroyed that then the settlements are gone unless the authority which has destroyed them has made some provision for the settlements, which ought, of course, be done, but it has been overlooked. There is a provision now which I think meets the case under this Divided Parishes Act, which, as far as I can see, is acted upon now because the point has turned up in the courts and is foreseen. But where the settlements are not in fact provided for by the authority, the statute or whatever it is which destroys the parish, then the settlements are gone. In this case the question which one has to consider is what is a destruction for the purpose of producing that result. Now you have it decided in the New Sarum case that the adding to one parish does destroy for this purpose the parish to which it is added in its entirety. What we have to say is here whether adding to one parish not the entirety of another parish destroys the first parish, and inasmuch as the adding of the entire portion would not destroy it I do not see why it should be said that the adding of a part does so. Consequently we are not bound by that doctrine, and we may follow the New Sarum case and say that it is more applicable in this case than the other one. Upon that ground we are able to decide that the settlements are not gone. Then there is a little addition to the argument, namely, with regard to the use of the word "amalgamation" which my learned brother has already dealt with, and I agree with what he has said. I think that for all purposes incorporating part of it with West Ham has not the effect of destroying West Ham. Appeal allowed. Solicitor for the appellants: W. A. Blaxland. Solicitors for the respondents: Hillearys. 65 J. P. 359. KING'S BENCH DIVISION. April 17. REX v. ROBERTS. Weights and measures-Fees for stamping and verifying-Power of local authority to remit-Weights and Measures Act, 1889 (52 & 53 Vict. c. 21), s. 13. A local authority has no power to order their inspector of weights and measures to collect no fees for the verification and stamping of weights and measures and weighing instru ments, but are bound to enforce the scale under section 13 of the Weights and Measures Act, 1889 (52 & 53 Vict. c. 21), and the first schedule to the Act. Rule nisi for a certiorari to quash a surcharge by a district auditor. From the affidavit of Thomas Kyle, the inspector of weights and measures, it appeared that it was his duty as such inspector to account for and pay over to the local authority, the Bucks County Council, not less than once a quarter, all moneys and fees received by him as such inspector. At a meeting held on the 10th of November, 1898, the Bucks County Council duly passed a resolution "That the fees for verification and stamping of weights and measures and weighing instruments charged under section 13 of the first schedule of the Weights and Measures Act, 1889, shall cease to be taken in this county on and after the 1st of January, 1899, but that traders shall continue to pay the cost of cartage and lifting of standards for the verification of weighing instruments of above 561b. in weight." In consequence of the said resolution, and acting upon the instructions of the county council the inspector ceased on and after the 1st of January, 1899, to take any fees for the verification of stamping weights and measures and weighing instruments under section 13 and the first schedule of the Weights and Measures Act, 1889. Upon the audit of the accounts for the year ending March, 1900, the district auditor for the Eastern Counties Audit District, Mr. Thomas Howell Kyffin Roberts, surcharged the inspector with the sum of 11. 11s. 4d., 65 J. P. 359. representing fees which the inspector would have collected but for the said resolution of the council dated the 10th of November, 1898, and the consequent instructions given to him by the county council, which the inspector never, in fact, collected or received. A rule nisi was obtained for a writ of certiorari to quash the surcharge on the ground that (1) under the Weights and Measures Act, 1889, s. 13, there was no legal obligation on the said inspector as such inspector to take fees. (2) That the order of the county council directing him not to take fees was legal and binding on the inspector. (3) That in any event the inspector was wrongly surcharged in respect of fees which he had not in fact received. "An The Weights and Measures Act, 1889 (52 & 53 Vict. c. 21), s. 13, provides : inspector of weights and measures may take. in respect of the verification and stamping of weights, measures, and weighing instruments, the fees specified in the first schedule to this Act, and no others, and no discount shall be allowed, and such inspector shall at such times, not less often than once a quarter, as the local authority direct, account for and pay over to the local authority or as they direct all fees so taken." C. A. Russell, K.C., showed cause. The local authority has no power or discretion to remit the fees for the verification and stamping of weights and measures. Under the earlier Weights and Measures Act of 1878, s. 47, the local authority had a discretion to fix the fees that their inspectors should take, but by section 13 of the Act of 1889, that discretion was taken away altogether and they were bound to exact the fees as specified to the schedule in that Act. The auditor was justified in surcharging the inspector in his accounts with the sum he ought to have collected. Macmorran, K.C. (A. G. McIntyre with him), in support of the rule. The question involved in this case is very important to all county councils. It has been strongly felt that the fees charged for verifying and stamping weights and measures was an obstacle in the way of small tradesmen bringing up their weights and measures and so the local authorities decided to forego their fees and instructed their inspector accordingly. The inspectors of weights and measures are appointed by the county REX v. ROBERTS. council under section 43 of the Act of 1878. They are therefore the servants of the county council and obliged to obey orders. In any case the auditor ought not to have surcharged the inspector with fees which he had in fact never collected. The case would have been otherwise had the inspector collected but not accounted for the fees. Under section 47 of the Act of 1878 the county councils had a discretion as to the amount of the fees they could charge as long as they did not exceed the maximum allowed by the Act. This led to confusion owing to the dissimilarity of fees charged by different local authorities, and section 13 of the Act of 1889 was passed which provided that such fees as were fixed by the schedule to that Act should be charged and no others, but that did not take away the power from the county council of charging no fees. All that was provided by that section was that if a local authority charged any fees at all they must adopt the scale laid down in the schedule. Besides, the section is in terms permissive only. The word used is "may" and not "shall." Lord ALVERSTONE, C.J.-We have nothing to do with the policy pursued by the county council in this case. It may be a wise and prudent matter not to insist on payment of fees for the stamping of weights and measures, but our only duty is to construe the Act of Parliament and see whether the county council has the power to remit such fees by instructing their inspector not to take them. In this case it appears that under a resolution of the county council the inspector took no fees for verifying the weights and measures. Then came the audit, and the auditor found no amounts entered as having been received on account of such fees. If the inspector had not paid over money received by him he would certainly be surcharged, but as a matter of fact no fees having been collected the auditor surcharged the inspector with the amount he ought to have collected. The important question is, Has the county council under the Weights and Measures Act, 1899, any power to order their inspector to exact no fees? Now by the Weights and Measures Act, 1878 (41 & 42 Vict. c. 49), s. 47, it was provided that an inspector under the Act might take in respect of the verification and stamping of weights and measures such fees not exceeding those specified in the fifth schedule 56 J. P. 359. to the Act as the authority appointing him from time to time might fix. This section and the schedule were repealed by section 13 of the Weights and Measures Act, 1889, and by which the inspector of weights and measures may take in respect of the verification and stamping of weights and measures the fees specified in the first schedule to this Act and no others, and Mr. Macmorran contends that the only effect of that section is to make the standard of fees uniform over all the country and not to take away from the county council the power of remitting fees altogether. I have been anxious to see if there was any independent power in the local authority to remit the fees, but Mr. Macmorran has been bound to admit that their power rested alone on section 47 of the Act of 1878 which has now been repealed, and section 13 of the Act of 1889 has been substituted for it, and section 13 has omitted to give them any power to remit the fees, but says that the inspector must take certain fees fixed by the schedule, and “no others." Then it is argued that the whole section is optional because it says the inspector "may" take such fees, and no others, and there the local authority had a discretion whether fees should be taken at all, but if fees were taken they must be such fees as are provided in the schedule. I think, however, we cannot accede to that contention, looking at the two sections. "May" often means shall, and I think in the present case it would be difficult to frame any section in which "may" would not be the more appropriate word than "shall." I think, therefore, the option of remitting the fees was taken away from the local authority by section 13. The only point which remains is that the inspector cannot be surcharged with fees which he never received, but looking to the provisions as to audit in section 247 of the Public Health Act, 1875. I do not think this is a point of substance, and the rule must therefore be discharged. LAWRANCE, J.-I am of the same opinion. Rule discharged. Solicitors for the appellant: Sharpe, Parker & Company. Solicitors for the respondent: Pyke and Parrott. 65 J. P. 378. PROBATE, DIVORCE AND ADMIRALTY DIVISION. May 18. NOTT v. NOTT. Husband and wife-Maintenance-Income of wife- Voluntary allowance to wifeSummary Jurisdiction (Married Women) Act, 1895 (58 & 59 Vict. c. 39), s. 5. Where a wife is in receipt of a voluntary allowance, Held, that this ought to be taken into considera tion by the magistrates in determining what sum ought to be paid by the husband to the wife by way of maintenance. Appeal by Albert Nott from a refusal, dated the 5th of February, 1901, of the Green-lane (Liverpool) justices to reduce an order made on the 29th of May, 1900, whereby he was ordered to pay to his wife, Kate Nott, the sum of 17. a week as maintenance. Barnard, on behalf of the appellant, said that the husband had, on the 29th of May, 1900, been convicted of persistent cruelty to his wife under section 4 of the Summary Jurisdiction (Married Women) Act, 1895 (58 & 59 Vict. c. 39), and ordered to pay her 17. a week. On the 12th of November, 1900, he was summoned for non-payment of arrears and sent to prison for one month. On the 5th of February, 1901, he was again summoned for further arrears, and that summons had been adjourned till this appeal had been decided by this court. The husband in February applied, as he was entitled to do, to the justices to reduce the order to 10s., but they had refused to do so. The husband was at the present time travelling for an insurance company at a weekly salary of 11. 108., out of which he had to pay his own travelling expenses. In the month of May, 1900, he was earning between 51. to 10%. a week by commissions, but now he earned no commission unless he did business to the extent of 2,000l. in two months. This he had never been able to do. The wife was receiving a voluntary allowance of 917. a year, but the justices refused to take this fact into consideration. There were five children of the marriage, three of whom 65 J. P. 378. went to school, but not at the wife's expense. When before the justices the wife admitted that she received 261. a year for house rent and also a sum of 17. 58. a week, and that she kept a servant. The husband when he was cross-examined said that on one occasion he had obtained a job at a dog show for a week, and that he had earned 11. for it. This was the only week in which he had paid the allowance to his wife. The justices considered that the husband had tried to deceive them as to his income, because he had not disclosed the fact in his evidence in chief that he had earned this 11. at the dog show. It was quite clear that the justices were wrong in not taking the wife's voluntary allowance into account, for this court has decided the point in Bonsor v. Bonsor, [1897] P. 77, where it was decided "for the purpose of determining the amount of permanent alimony or maintenance, recourse may be had to income of which the husband has no legal power to enforce the payment. A husband who was largely indebted to his brother was in receipt of a voluntary allowance from him so long as he should remain out of the country. Held, that the voluntary allowance was properly included in the husband's income for the purposes of fixing the amount of permanent maintenance." The point was also considered in Clinton v. Clinton, L. R. 1 P. & D. 215. The result of the justices' order was to leave this man 10s. a week to live, travel, and dress on. This man works and earns 17. 10s. a week. It seems clear that the justices acted upon his omission to disclose "in chief" the sovereign he earned at the dog show, which was perfectly well known to the wife, because it was the only occasion on which she received any payment. No one represented the wife nor did she appear. The PRESIDENT (Sir Francis Jeune), in delivering judgment, said it was desirable if possible to avoid sending back cases to the justices, and in this case it was not necessary to do so. The joint income of the husband and wife, was about 31. per week, the wife's income of which would be about 11., but there was the question of the children to be taken into consideration. The question whether a voluntary allowance should be taken into account or not had been considered in Bonsor v. Bonsor (supra), and the court there held that the whole actual NOTT v. NOTT. income, from whatever source it came must be taken into account. From the decision of the justices in this case it was not quite clear what view they took of this point, but dealing with these cases in a just and common-sense way, it was obvious that the sum allowed to the wife as maintenance was too large, and that the justices were influenced by considerations which were open to some criticism. They laid stress upon the dog show incident, which was really unimportant. They also dwelt upon the fact that if the husband would keep sober he could earn more because of his natural abilities. Of course, if the husband earned nothing it would be obvious he would be at fault. There was no evidence to support the observations of the justices, and the court had no hesitation in saying that the amount of the justices' order was too large, and that it should be reduced to 10s., the amount the husband himself had offered to pay. BARNES, J.-I concur Appeal allowed. Solicitor for appellant: John Hands, for John Sefton, Liverpool. Metropolis-New street-Widening-Paving -Apportionment of expenses-Frontagers on one side only-ContributionMetropolis Management Act, 1855, s. 105 -Metropolis Management (Amendment) Act, 1862, ss. 77, 112. A highway repairable by the inhabitants at large was widened by adding a strip of land to it on one side. Held, that the strip of land so added together with the houses abutting on it formed a new street, and the expenses of paving it were rightly apportioned on the frontagers on that side of the road. Case stated by John Rose, Esq., one of the magistrates of the police courts of the metropolis, sitting at the South-western Police-court. 1. On the 11th of July, 1900, a summons to appear at the South-western Police-court was issued at the instance of the respondents to the appellants for the appellants to answer a claim by the respondents, the particulars of which annexed to the summons were as follows: "691. 11s. 3d. being the sum apportioned by the plaintiffs on the 31st day of January, 1900, in respect of certain premises of which you are the owners or occupiers and being the proportion payable in respect of such premises towards the expense of paving a new street called Totterdown (on the north side thereof), Tooting." 2. At the hearing of the summons on the 8th of August, 1900, the facts of the case were stated and agreed in the terms following and were taken as evidence (1) The plan is a correct representation of the locus in quo. (2) The street or roadway known as Totterdown has at present buildings erected on both sides. |