REX v. HENRY BROWN. in a certain place to wit in a road there called Hillside-road and in the garden of a dwelling-house situate in the said road being then about to commit a certain offence punishable on indictment to wit feloniously and burglariously to break and enter a certain dwelling-house and to steal take and carry away the goods chattels and monies therein being and so the jurors aforesaid upon their oath aforesaid do say that the said Henry Brown in manner and form aforesaid was guilty of an offence against the said Prevention of Crimes Act, 1871, and the jurors aforesaid upon their oath aforesaid do say that on the twenty-eight day of January in the year of our Lord one thousand nine hundred and one the said Henry Brown was charged before the North London Police-court being a court of summary jurisdiction with the said offence and when so charged and on appearing before the said court and before the said charge was gone into claimed to be tried by a jury." To this indictment the defendant pleaded "Not guilty." The jury having been duly sworn, the clerk of the court stated to them the substance of the subsequent offence alleged to have been committed by the defendant, omitting all mention of the previous convictions alleged in the indictment. Sells, for the prosecution, asked that the whole of the indictment should be stated to the jury before he opened the case. The RECORDER refused this application. The sole question for the jury is, whether the defendant was in the place alleged under such circumstances that they, as reasonable men, are satisfied that he was there for the purpose of committing a felony. The jury have to say now whether on the 27th of January, at 11 o'clock at night, he was found in the garden of a house in Hillsideroad, and was then about to commit the felony of burglariously breaking and entering the said dwelling-house. Evidence was then called to prove that the defendant was seen in the garden, where he only remained about a minute, and then came out and walked away, and was arrested about half an hour later, some distance away, when he denied having been in the garden. After proving all the facts in relation to these circumstances, Sells proposed to call a police-sergeant, for the purpose of proving the previous convictions. 65 J. P. 136. The RECORDER: The evidence is inadmissible In summing up the case to the jury, he said: The sole question for you is whether the defendant was found in Hillside-road, on the 27th of January, and in a garden of a dwellinghouse, and it is entirely a question for you whether you are satisfied affirmatively that his intention was to break into a dwellinghouse and steal therein. The jury returned a verdict of "Not guilty." The RECORDER said that the procedure in such a case as the present where a person elected to be tried by a jury was regulated by section 9 of the Prevention of Crimes Act, 1871, which said that the rules contained in section 116 of the Larceny Act, 1861, were to apply. For example, in the case of stealing a dog, that was not an indictable misdemeanour unless committed after a previous conviction. In that case section 116 clearly provided that the previous conviction should not be given in evidence until the subsequent offence had been proved. The analogy of that case ought to be followed in the present case in the absence of any express direction to the contrary, and the previous convictions ought not to be mentioned to the jury until the facts constituting the subsequent offence had been found by them. No one who had been previously convicted would be safe out at night if he could be arrested merely because he was known by the police to have been so convicted and on the mere suspicion that he was about to commit a felony. 65 J. P. 137. COUNTY OF LONDON QUARTER SESSIONS. (Before Mr. Loveland-Loveland, K.C. (Deputy-Chairman), and other Justices.) February 4. TRUSTEES OF THE JEWS' DEAF AND DUMB HOME, WANDSWORTH v. WANDSWORTH AND CLAPHAM UNION ASSESSMENT COMMITTEE. Exemption Rates Voluntary Schools Act, 1897 (60 Vict. c. 5), ss. 3, 4-Deaf and dumb home certified under Elementary Education (Blind and Deaf) Children Act, 1893 (56 & 57 Vict. c. 42)—" Day" school. A deaf and dumb home certified under the Elementary Education (Blind and Deaf Children) Act, 1893, for the education, boarding, and lodging of 54 deaf children of both sexes, and for the education of 20 of such children as day pupils, and in receipt of contributions from various school boards and a grant from the Education Department, is not a voluntary school within the meaning of section 4 of the Voluntary Schools Act, 1897; and, therefore, not exempt from rates. The appellants are in occupation by their manager for the purposes of their trust, of certain premises, No. 61, Nightingale-lane, in the parish of Clapham, in the Clapham and Wandsworth Union. The said trust is a charitable one instituted for the purpose of the maintenance and education of deaf and dumb children, its income consisting mainly of voluntary subscriptions and donations. The appellants, in addition to such subscriptions and donations, receive from the London and other school boards contributions and a grant from the Education Department under the Elementary Education (Blind and Deaf Children) Act, 1893, in respect of the reception, maintenance, and education by them of children sent to the said home pursuant to the said Act. The said home is certified for the education, boarding, and lodging of 54 deaf children of both sexes, and for the education of 20 of such children as day pupils. At the time of the hearing 65 J. P. 137. of this appeal all the children in the home, except three, were sent by school boards. At the end of the year 1900 the expenses of the said home were about 4007. in excess of the income of the said trust. The appellants now contended that, having regard to section 3 of the Voluntary Schools Act, 1897, so much only of the premises of the said home as were not used exclusively or mainly for the purposes of schoolrooms, offices, or playgrounds should be valued. 66 The Voluntary Schools Act, 1897 (60 Vict. c. 5), s. 3, says: No person shall be assessed or rated to or for any local rate in respect of any land or buildings used exclusively or mainly for the purposes of the schoolrooms, offices, or playground of a voluntary school, except to the extent of any profit derived by the managers of the school from the letting thereof." Section 4 provides: "In this Act, unless the context otherwise requires, the expression 'voluntary school' means a public elementary day school not provided by a school board." R. C. Glen for the appellants. - This school falls within the exemption of section 3 of the Voluntary Schools Act, 1897. The school is a public school, for, having accepted grants from the various school boards and the Education Department, the authorities are bound to admit children from the public. At the present moment all the children in the school have been sent by school boards except three; but the fact that there are private pupils makes the school none the less a public one. Again, the school is certified for the education of both boarders and day pupils. [LOVELAND-LOVELAND, K.C.-It does not therefore come within the Voluntary Schools Act, 1897.] The fact that there are boarders does not make it any the less a day school. Boyle, K.C., and J. S. Henderson for the respondents. LOVELAND-LOVELAND, K.C.-I have no hesitation in saying that this school was not one of those it was intended by the Act of 1897 to exempt from rates. Appeal dismissed. Solicitor for the appellants: A. D. Levi. Solicitor for the respondents: A. H. Webber. The Metropolitan Commissioners of Sewers had in 1855 approved a combined system of drainage whereby the houses on one side of a street were to be drained in groups of four houses each. Before the 1st of January, 1856, the combined system was carried out, but in one case there was an alteration from the grouping as sanctioned, as one group consisted of five houses instead of four, two houses having been included from the preceding group and one house being excluded from the group and drained with the succeeding group. There was no evidence to show that the alteration had been sanctioned. A nuisance existed at one of these houses owing to the defective condition of the pipe draining the group. Held, that the deviation from the approved grouping was material, and, as it had not been sanctioned, the pipe draining the group was not a "drain" within section 250 of the Metropolis Management Act, 1855, as amended by section 112 of the Metropolis Management Amendment Act, 1862, but was a sewer, and that, therefore, the owner of the house was not liable to abate the nuisance. Case stated by John Dickinson, Esquire, one of the magistrates of the police-courts of the metropolis, sitting at the Thames Police-court. 1. The respondent was summoned before me for an offence alleged to have been committed in contravention of the Public Health (London) Act, 1891 (54 & 55 Vict. 65 J. P. 164. c. 76). The summons was heard by me on the 10th and 17th of May, 1900. 2. The applicant, a sanitary inspector, was the complainant acting on behalf of the Board of Works for the Poplar District, and the respondent was the owner of premises known as 67, Arcadia-street, within the said district. 3. The charge was that on the 3rd of May, 1900, at the premises above mentioned a nuisance existed, to wit, the drain was defective and that the said nuisance was caused by the act, default, or sufferance of the respondent. 4. It was proved to my satisfaction- (b) That the said pipe was used for the (d) That if the said pipe was in law a drain, the said nuisance arose from the default and sufferance of the respondent. 5. It was contended on behalf of the appellant that the said pipe was a drain for draining a group or block of houses by a combined operation, and laid or constructed before the 1st of January, 1856, pursuant to the order or direction or with the sanction or approval of the Metropolitan Commissioners of Sewers within the meaning of section 250 of the Metropolis Management Act, 1855 (18 & 19 Vict. c. 120), as amended by section 112 of the Metropolis Management Amendment Act, 1862 (25 & 26 Vict. c. 102). The respondent contended that the existing drainage had not been laid or constructed pursuant to the order of the said commissioners hereinafter mentioned, or with their sanction or approval and that the said pipe was a sewer. 6. Upon this point the following facts are to be taken as proved or admitted :(a) On the 18th of July, 1855, a letter was sent to the Metropolitan Commissioners BULLOCK v. REEVE. of Sewers, of which letter the following is a copy : "Stainsby-road, Limehouse, "18th July, 1855. "To the Metropolitan Commissioners of Sewers. Gentlemen,-I beg to forward for your inspection and approval the accompanying plan, showing the proposed mode of draining an estate at Poplar, belonging to Arthur Walter, Esquire, of Church-row, Limehouse. "You will perceive I have adopted a plan similar to that adopted by Mr. Wicks upon his adjoining estate, which I understand has already obtained the sanction of your board. "As the two estates are so immediately connected, I think it desirable that they should, if possible, be under one and the same system of drainage. "The lines drawn and coloured brown on the accompanying plan show the proposed 12-inch pipe drain. "Those drawn and coloured blue the 9-inch pipe drain, those coloured red the 6-inch pipe drain, and those dotted red the 4-inch pipe drain. The names and lineal measurements of the several streets are marked thereon. The respective levels of the proposed surface of the said street will be as follows. (The levels were then set out.) "It is proposed in all instances to keep the main drain at least 3ft. 6in. below the surface of roadway with a minimum fall of 1 inch in 15 feet, and to give the house drains a minimum fall of 3 inches in 10 feet. "The plan of drainage so far as relates to the plot coloured pink has been submitted by Mr. Cox of Bromley, and that relating to the plot coloured green by Mr. Leake of Upper North-street, Poplar. "(Signed) WILLIAM ELLISON." (b.) The copy plan annexed hereto is a correct copy of the plan referred to as accompanying the said letter, except that the numbers of the houses have been added. The red lines show the proposed system of drainage. The line in black ink drawn from No. 59 to and through No. 67 was added to the said copy plan for the purposes of showing what is the existing system of drainage. (c.) A formal application for the sanctioning of the plan of combined drainage dated the 23rd of August, 1855, was also sent to the said commissioners. The following is a copy of the said application, 65 J. P. 164. “Application 3240. “William Ellison, of Stainsby-road, Limehouse, on behalf of Arthur Walter, of Church-row, Limehouse, for leave to lay the under-mentioned sewers, namely . . . C to D, 800 or thereabouts of 12-inch pipe sewer in and along Sydney-street"-(now called Arcadia-street)-" to communicate with, and have a current eastward into, the sewer in Upper North-street. Also to lay 54 nine-inch glazed stoneware pipe drains from 273 houses to communicate with the above sewers as shown on the accompanying plan, and to build such shafts and gullies as shall be required. Plan attached. 23rd August, 1855. Confirmed by order of court on the 16th of October, 1855." (d.) On the 16th of October, 1855, the said commissioners ordered and directed the combined drainage of the houses shown upon the said plan and referred to in the said letter and application, to be carried out accordingly, and the combined system of drainage existing upon the premises in question on the 3rd of May, 1900, was laid out and constructed before the 1st of January, 1856. (e.) The said existing system of drainage differs from that ordered and directed by the said commissioners, inasmuch as it drains Nos. 59, 61, 63, 65 and 67 (five houses) instead of Nos. 63, 65, 67 and 69 (four houses). That is to say, two houses (Nos 59 and 61) were added, and one house (No. 69), which is now drained with No. 71, was not included. (f.) There was no evidence to show that the deviations from the said plan were sanctioned or approved by the said commissioners. 7. Upon these facts, and having referred to the following cases, Kershaw v. Taylor, [1895] 2 Q. B. 471; 59 J. P. 726, Holland v. Lazarus, 66 L. J. Q. B. 285; 61 J. P. 262, and Geen v. Newington Vestry (1898), 2 Q. B. 1; 62 J. P. 564, I was of opinion that the original combination not having been adhered to but altered, the said pipe or drain as laid not having been so laid with the sanction or approval of the commissioners, or pursuant to their order or direction, was a sewer "within section 250 of the Metropolis Management Act of 1855, as amended by section 112 of the 66 BULLOCK v. REEVE. Metropolis Management Amendment Act of 1862, and I dismissed the said summons subject to this case. 8. The question for the court is whether, upon the facts stated, my decision was right in point of law. If the court finds in the affirmative, then my said decision is to stand; but if the court finds in the negative then this case is to be remitted to me with the opinion of the court thereon. Given under my hand and seal at the Thames Police-court this 28th of June, 1900. (Signed) JOHN DICKINSON. The Metropolis Management Act, 1855 (18 & 19 Vict. c. 120), provides : : Section 250: 66 The word 'drain' shall mean and include any drain of and used for the drainage of one building only, or premises within the same curtilage, and made merely for the purpose of communicating with a cesspool or other like receptacle for drainage, or with a sewer into which the drainage of two or more buildings or premises occupied by different persons is conveyed, 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.” The Metropolis Management Amendment Act, 1862 (25 & 26 Vict. c. 102), provides :— Section 112: "In the construction of the recited Acts and this Act . . . the word ' drain' shall be deemed to apply to and include the subject-matters specified in section 250 of the firstly recited Act, and also any drain for draining a group or block of houses by a combined operation laid or constructed before the 1st day of January, 1856, pursuant to the order or direction or with the sanction or approval of the Metropolitan Commissioners of Sewers." R. D. Muir for the appellant.—The learned magistrate was wrong in holding that this pipe was a sewer. In 1855 a plan was sanctioned for draining a large number of these houses in groups or blocks of four houses each, but the group now in question did not comply with that plan as there was a slight deviation from the plan. The question is, Does this deviation make the pipe a sewer? There was no evidence that the deviation from the plan was approved of, but that approval ought under the circum 65 J. P. 164. The pipe is a stances to be presumed. "drain" within the meaning of these Acts, as there was no such deviation from the approved plan for this combined drainage as would take the case out of the definition of a "drain" as given in section 250 of the Act of 1855 and section 112 of the Act of 1862. The whole of this street was covered by the combined system of drainage so that these five houses were all covered by the combined system, and there is no case which goes so far as to say that a pipe which drains houses to which a combined system of drainage applies, is a sewer. (Kershaw v. Taylor (supra), Holland v. Lazarus (supra), and Geen v. Newington Vestry (supra).) Here there was no material deviation; the only deviation from the plan was a slight alteration in the grouping of this block of houses, and all the houses were covered by the combined system, so that there was no introducing into the group any house which was not included in the combined system. In the case of Greater London Property Company v. Foot, [1899] 1 Q. B. 972; 63 J. P. 420, it was held that a mere deviation in the course of a drain was not sufficient to convert it into a sewer, there being an order for combined drainage. The deviation from the grouping being immaterial the magistrate ought to have held that this pipe was a drain. Alexander Glen for the respondent.—The magistrate was right in holding that this was a sewer, and that consequently the respondent was not liable to abate the nuisance arising from the defective condition of the sewer. The definition of "drain" as given in section 250 of the Act of 1855, was amended by section 112 of the Act of 1862, so that it now includes "any drain for draining a group or block of houses by a combined operation laid or constructed before the 1st of January, 1856, . . . with the sanction or approval of the Metropolitan Commissioners of Sewers." This particular pipe was not laid or constructed with their approval. Consequently it does not come within the words of the definition in that respect. It is said that the deviation from the plan as sanctioned is a mere immaterial deviation, and therefore ought not to be taken into account. The deviation in this case was not a mere deviation in the course of the drain as in Greater London Property Company v. Foot (supra), but it was a |