CH.]

remain, and for an order for the removal of such connection.

The defendant, the owner of a plot of land and of half the road in front of it, in Nov. 1899 erected two semi-detached houses on his land, and laid down two sets of pipes from the water-closets of the houses which joined and connected with the sewer vested in the local authority in that part of the road which did not belong to the defendant.

On the 17th Jan. 1901 Marchant conveyed two plots and the half of the road in which the conduit connected with the sewer to the plaintiff.

Micklem, K.C. and E. Clayton for the plaintiff. -The two semi-detached houses are only one building, and the culvert is not a sewer. The plaintiff cannot by wrongfully making a culvert on another man's land divert the property from the owner of the land:

Meader v. West Cowes Local Board, 67 L. T. Rep. 454; (1892) 3 Ch. 18.

Eve, K.C. and Buckmaster for the defendant.The two houses are two buildings within the meaning of the Public Health Act 1875 (38 & 39 Vict. c. 55), ss. 4, 13. From the point of junction the culvert was a sewer and not a drain :

Kershaw v. Taylor, 73 L. T. Rep. 274; (1895) 2
Q. B. 471;

Travis v. Uttley, 70 L. T. Rep. 242; (1894) 1 Q. B.
233.

The owner of the land acquiesced in the making of the connection through his land.

COZENS-HARDY, J.-What the defendant had done was prima facie a trespass, but it was said to be justified in several ways. First it was said that Marchant, the plaintiff's predecessor in title, had acquiesced in the making of the connection through his land, but there was no evidence of that. Then it was said that the culvert from the pair of detached houses was not a drain, but a "sewer" within the meaning of the Public Health Act, and was vested in the local authority, and that the plaintiff had no right to interfere. The Act defined drain" and "sewer as follows: "'Drain' means 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 therefrom 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." "Sewer' includes sewers and drains of every description, except drains to which the word drain' interpreted as aforesaid applies, and except drains vested in or under the control of any authority having the management of roads and not being a local authority under this Act." Apart from authority, I would have thought that this was the case of the drainage of one building only. A structure might be one building whether it was occupied by one or more person or persons, and whether in flats or not. The term " one building" was not equivalent to the term "one house." A pair of semi-detached

houses might be one building only. In Kershaw 7. Taylor (ubi sup.), a Divisional Court held that from the point of junction the culvert was a sewer and not a drain within the Metropolis Local Management Act 1855, but there the drainage came from two separate pairs of semi-detached houses. In Travis v. Uttley (ubi sup.), it was held

[K.B.

that a pipe receiving the drainage of more than one "building" was a sewer within the meaning of the Public Health Act; but in the present case the erection was only one building, although it consisted of two semi-detached houses, and this culvert, so far as it ran through the plaintiff's land, was not a sewer. But even if it was a sewer there would be a further difficulty, as to which, as at present advised, his Lordship was against the defendant. Could a man by making a culvert wrongfully on another man's land without his consent make it a sewer so as to vest it in the local authority and divert the property from the owner of the land? The observations of Chitty, J. and the Court of Appeal in Meader v. West Cowes Local Board (ubi sup.) were against the defendant on this point. Webb could not by a trespass on the plaintiff's own land make something a sewer so as to prejudice the plaintiff. I must make a declaration that the defendant was not entitled to drain through the plaintiff's premises, and order the defendant to take up and remove the drain complained of.

Solicitors: John Bartlett; Shirley W. Woolmer.

KING'S BENCH DIVISION.
April 1 and 3, 1901.

(Before Lord ALVERSTONE, C.J.) ATTORNEY-GENERAL (on the relation of the Bromley Rural District Council) AND THE BROMLEY RURAL DISTRICT COUNCIL v. COPELAND. (a)

Highways-Highway authority- Pipe through bank to carry off rain waters from highway— Right to pass the waters through pipe on to adjoining land "Drain Prescription

Highway Act 1835 (5 & 6 Will. 4, c. 50), s. 67. A pipe through a bank separating a public highway from adjoining land, through which the rain waters collecting on the highway are passed from the highway on to the surface of the adjoining land and not to any proper outlet, is not a 6. drain" within sect. 67 of the Highway Act 1835, and therefore the highway authority have no power under that section, as against the owner of the adjoining land, to maintain such a pipe and thereby discharge the waters collecting on the highway on to the surface of his land. The right which a highway authority have over an ancient highway is not such a dominant tenement as would give them a common law right by prescription to maintain this pipe through the bank and to pass the waters from the highway through the same on to the surface of the adjoining land; and therefore the highway authority can acquire no such right or easement by prescription even though they have for more than the statutory period exercised the right of passing the water through the pipe on to the adjoining land.

FURTHER CONSIDERATION before Lord Alverstone, C.J. in an action tried by him without a jury.

The plaintiffs were the Attorney-General on the relation of the Bromley Rural District Council and the Bromley Rural District Council, and they claimed an injunction to restrain the (a) Reported by W. W. ORR, Esq., Barrister-at-Law.

K.B.]

defendant from stopping up or obstructing an ancient watercourse or flow of water passing from the public highway leading from West Wickham to Beckenham, in the county of Kent, over land of the defendant lying between such highway and West Wickham station, in the parish of West Wickham, and from causing obstruction to the highway; and they also claimed damages for the obstruction of and injury to the highway.

The Bromley Rural District Council is the highway authority for the parish of West Wickham, and the road in question was the public highway in the parish leading from West Wickham to Beckenham, and was under the highway jurisdiction of the council.

The defendant was the owner of certain land in the parish adjacent to the road, and separated therefrom by a bank and hedge. The defendant bought this land about two years before the date of the action and he had built houses thereon, and such houses were occupied by his tenants. The road was an ancient highway, and there was a fall or dip in the road opposite the defendant's land. At the point in the road at which the question in the case arose there were, prior to the year 1868, two old catch-pits, one on either side of the road, connected by a pipe or culvert under the road. This point was the lowest point of the road, there being a falling gradient on one side and a rising gradient on the other, and the land on the side opposite to the defendant's land also sloped downwards towards the road.

Prior to the year 1868 the rain and storm waters collecting on the road and running down the road in both directions towards the lowest point would there collect and pass into the catchpits, and the water from one catch-pit would then pass through the pipe under the road into the catch-pit on the defendant's side, and thence from this catch-pit to an old cut in the bank.

In the year 1868 the catch-pits were enlarged and were connected by an iron pipe under the road, and from the catch-pit on the defendant's side a pipe was put through the bank under the hedge which divided the road from the defendant's land, and through this pipe the rain and storm waters collecting at this point of the road were passed from the catch-pits on to the defendant's land and over the surface of the same.

The learned judge was of opinion that there was sufficient evidence to show the existence of an easement for passing the water through the pipe on to and over the defendant's land, assuming that the plaintiffs were entitled to claim such an easement. It was not denied that the defendant had obstructed the flow of the water.

The plaintiffs alleged that the Bromley Rural District Council and their predecessors in title had made and maintained for many years past this pipe through the bank, and that the rain and storm waters collecting on the road had passed through such pipe on to and across the defendant's land for many years prior to the purchase of the land by the defendant and had continued so to pass at the time of such purchase, and that such waters had so flowed from the road through the pipe on to the defendant's land from time immemorial, and that there was always an ancient watercourse and natural outlet for such waters from the road over the defendant's land; and that the defendant had unlawfully obstructed the

[K.B.

channel and pipe and had interfered with and prevented the flow of the water from the road over his land.

The defendant alleged that there never was or had been an ancient watercourse or natural outlet for the rain waters from the road over his land, and he submitted that neither the Bromley Rural District Council nor their predecessors in title had acquired any right to a watercourse or to the flow of the water from the road on to or over the defendant's land.

Sect. 67 of the Highway Act 1835 (5 & 6 Will. 4, c. 50) provides:

And be it further enacted, that the said surveyor, district surveyor, or assistant surveyor, shall have power to make, scour, cleanse and keep open all ditches, gutters, drains, or watercourses, and also to make and lay such trunks, tunnels, plats or bridges, as he shall deem necessary, in and through any lands or grounds adjoining or lying near to any highway, upon paying the owner or occupiers such lands or grounds, provided they are not waste or common, for the damages which he shall sustain thereby, to be settled and paid in such manner as the damages for getting materials in inclosed lands or grounds are herein directed to be settled and paid.

Bray, K.C. and Clarke Williams for the plaintiffs.-The question is whether there can be a legal origin for this easement in favour of the plaintiffs. We contend that there is a legal statutory origin and a legal common law origin. For the legal statutory origin we rely on sect. 67 of the Highway Act 1835, which gives the highway authority power to acquire an easement, to make and maintain a drain, and to pour water through that drain on to the adjoining land. If there had been a ditch at the other side of this hedge and the defendant's predecessors had allowed this water to run down that ditch, then undoubtedly the plaintiffs would have had an easement to put a pipe through the bank into that ditch. In that case the pipe would have been a 66 drain" within sect. 67. It makes no difference whether there is a ditch or not, except as to the amount of compensation to be paid under the section to the owner; otherwise where there is no ditch the authority could not exercise their powers at all, and the road would remain flooded and the object of this section be defeated. We therefore have the right to make a drain through this bank and let the water pass through, and we contend that this pipe is a drain within sect. 67. The only case we can find on the point is Croft v. Rickmansworth Highway Board (60 L. T. Rep. 34; 39 Ch. Div. 272), where it was held that a well into which waste water flowed through a pipe and thence percolated into the soil was not a "drain or watercourse within sect. 67. That case only shows that if we were merely seeking to make or cleanse a pond, or if we were draining into a pond or ditch, we should have no right to clean out that pond or ditch except in so far as this section gives us power to do it. A clear distinction is there drawn between the drain by which the water was conveyed to this pit and the pit itself; and all the case decides is that the pit for receiving the water from the drain was not a "drain." That case therefore is no authority against the plaintiffs. The plaintiffs have therefore a statutory right under this section to acquire this right against the defendant, and to put this pipe through the

66

bank. That is the statutory origin of the plaintiffs' rights. Then with regard to the common law origin, where a thing like this has been going on for a great many years-and we do not know when this began—a legal origin ought to be presumed; and in dealing with the common law right we have to deal with the two halves of the road differently, because presumably the half of the road on the defendant's side belongs to the defendant, and the other half to the owner of the land on the other side. Clearly the owner of the land on the other side could claim an easementif he proved it-to go through the defendant's land under the road and so on through the bank to the land on the other side of the bank. He may acquire that right either by virtue of his own acts, or by the acts of his tenants and occupiers, as an occupier may acquire rights for the owner, in which case both owner and occupier would be entitled:

Irimey v. Stocker, 14 L. T. Rep. 427; L. Rep. 1 Ch. 396.

There would be nothing to prevent the owner and his occupier from acquiring the right to take the water from his side of the road over the defendant's land, and the highway authorities are in the position of occupiers of the roadway for certain purposes: (per Lord Cairns in Rangeley v. Midland Railway Company, 18 L. T. Rep. 69, at p. 70; L. Rep. 3 Ch. 306, at p. 311). With regard to the half of the road on the defendant's side, although an ordinary tenant cannot acquire as against his landlord, who is the owner of the adjoining land, an easement

over that adjoining land, and although if the bighway authority were an ordinary tenant there might be a difficulty in saying that the highway authority could acquire an easement by occupying land belonging to the owner of the servient tenement, yet this is not the case of an ordinary tenant, but a case where the highway authority have a qualified but permanent occupation which is sufficient to found an easement. Upon both grounds the plaintiffs are entitled to succeed.

G. B. Rashleigh (Dickens, K.C. with him) for the defendant.-The defendant was lawfully entitled to do what he did. We submit these four propositions: First, the Prescription Act 1832 does not apply to rights in gross :

Shuttleworth v. Le Fleming, 19 C. B. N. S. 687; 11
Jur. N. S. 840.

Secondly, an owner of land has a right to protect himself from flood water not brought there by his own act, although by so doing he injures someone else:

Nield v. London and North-Western Railway Company, L. Rep. 10 Ex. 4.

The defendant has done an act on his own land; he has stopped up this pipe, and by so doing it may be said that he has injured the highway, but he was entitled to do so to protect himself. Thirdly, a highway authority may not make use of their rights over the road in such a way as to deprive the adjoining owner of the reasonable use of his land:

Vestry of St. Mary, Newington v. Jacobs, 25 L. T. Rep. 800; L. Rep. 7 Q. B. 47. Fourthly, the only statutory right which this highway authority have under sect. 67 of the MAG. CAS.-VOL. XX.

Highway Act 1835 is the right to carry the water by a proper drain off the road through the land, but not in such a way as to do the defendant an injury. The statute could never have intended to give the plaintiffs a right to make a drain through this bank and let the water run on to the defendant's land without making any provision for the proper disposal of the water. It is assumed that under the operation of this section the surveyor of highways at some distant time made these drains and has a right to keep them open, but there is no record whatever to show that any such thing ever took place, and there is no authority to show that such a right can be claimed under the statute by prescription. The plaintiffs are obliged to call in aid the Prescription Act 1832 in order that they may claim the benefit of sect. 67; but I assume that the highway authority are not "occupiers of a tenement so as to bring them within sect. 5 of the Prescription Act; and if they are not occupiers of a tenement, they do not come under the Prescription Act at all. The plaintiffs are a statutory body and can have no rights except those given by the statute, and unless such a right as is here claimed is expressly given them by the statute, they do not possess it :

Croft v. Rickmansworth Highway Board (ubi sup.) There is nothing in the statute which gives them the right to drain the water off the road on to the defendant's land and leave it there; and the principle of that case is strongly in the defendant's favour, as it shows that the highway authority had no right to interfere with the enjoyment of the defendant's land. This pipe is not a "drain" within the meaning of the section, and therefore there cannot be a legal origin for the right claimed. The pipe was there when the district council came into possession, but unless the statute gave them the right to put it there, no prescription can give them the right. Again, the plaintiffs have no such right in the road as would enable them to acquire an easement by common law independent of statute. The public have no hereditament, no property, and no rights in the road which can be passed from one to another, and therefore they cannot acquire any easement of the kind here claimed, and the only thing in Rangeley v. Midland Railway Company (ubi sup.) to support such a right is the use by Lord Cairns of the word occupation." With regard to the Acts of Parliament under which the district council claim their title, it is useful to refer to the judgment of Thesiger, L.J. in Rolls v. Vestry of St. George-theMartyr, Southwark (43 L. T. Rep. 140, at p. 143; 14 Ch. Div. 785, at pp. 800-1), where he deals with the rights of the surveyor over the roads, and shows that under the Highway Act 1835 the surveyor had no rights beyond mere rights of control and management. Then under sect. 11 of the Highway Act 1862 (25 & 26 Vict. c. 61), all the property, including all easements, which belonged to the surveyor of highways passed to, and became vested in, the highway board of the then formed highway districts. Then under sect. 4 of the Highways and Locomotives (Amendment) Act 1878 (41 & 42 Vict. c. 77), power was given to the rural sanitary authority of a district coincident with a highway board to become a highway board and to exercise all the powers thereof, and, under sect. 5, all the property, including ease2 B

66

ments '—as in the previous Act-of the highway board or any surveyor of the parish passed to, and became vested in, the rural sanitary authority, so that if there were any "easements" in the original surveyor they passed to the rural sanitary authority. Then, lastly, under sect. 25 of the Local Government Act 1894 (56 & 57 Vict. c. 78), all the powers, duties, and liabilities of the rural sanitary authority in the district and of any highway authority were transferred to the rural district council. The easement claimed is not an easement which the surveyor of highways could have acquired, and therefore not an easement which became vested in the plaintiffs. He also referred to

Hawkins v. Rutter (1892) 1 Q. B. 668;

Coverdale v. Charlton, 40 L. T. Rep. 88; 4 Q. B.
Div. 104.

Clarke Williams in reply.

Cur. adv. vult.

It is

April 3.-Lord ALVERSTONE, C.J. read the following judgment:-In this case the AttorneyGeneral, acting on the relation of the Bromley Rural District Council, and the Bromley Rural District Council, have brought an action against the defendant in respect of the interference with the flow of water through a certain pipe which had been put through the bank of the defendant's land, and it was not denied that the defendant had obstructed the flow of the water. The only question for my determination is whether the Attorney-General on the relation of the plaintiff board or the plaintiff board themselves are entitled to an injunction to restrain the defendant from interfering with the flow of water through the pipe in question. The point of law raised is somewhat novel. It will be convenient in the first instance that I should state the facts which gave rise to it. There is in the district of the Bromley Rural District Council a road which passes from the Swan inn at West Wickham north-west in the direction of Beckenham. not disputed that the road was an ancient highway. The road near the point as to which the question arises passes to the south-west of West Wickham station, and runs approximately parallel to the railway, which is in a cutting some little distance to the east. I find upon the evidence before me that prior to the year 1868 there were at the point E on the Ordnance plan which was produced in evidence in this case two old catchpits, one on either side of the road, connected by an old pipe or culvert under the road. There is a falling gradient from the south for a distance of upwards of one-quarter of a mile to the point E, about one in twenty-five, and a rising gradient from the point E towards the north-west having a fall of about one in 400. The point E is in consequence the lowest point in the road at that point, having gradients rising from it in each direction. In addition, the natural lie of some part of the land on the west is towards the road. Prior to the year 1868 the water collecting on the road and running down each gradient in both directions and collecting at the point E would find its way into the two old catch-pits, and from the western catch-pit by means of the pipe under the road to the eastern end, and then to an old cut in the bank. In the year 1868 the old catch-pit on the west was enlarged, a new catch-pit put on the east side, and the catch-pits were connected by

[K.B.

an iron pipe, and from the eastern catch-pit stone pipes of 12in. diameter were put in through the bank. Under these circumstances I come to the conclusion that there was sufficient evidence before me to show the existence of an easement for the

passing of water through the pipe on to the land of the defendant, assuming that the plaintiffs are entitled to claim such an easement. I have now to consider whether the Bromley Rural District Council, or the Attorney-General on their relation, can enforce against the defendant the right to continue the flow of water through the pipe in question. It is urged by the plaintiffs that, inasmuch as under the 67th section of the Highway Act 1835 a surveyor of highways could make drains through adjoining grounds upon payment of compensation to the owners, this pipe through the bank was in fact a drain, and that I must assume after the uninterrupted usage of so many years there had been some arrangement between the adjoining owner and the relators or their predecessors under that section. This section formed the subject of discussion in the Court of Appeal in the case of Croft v. Rickmansworth Highway Board (60 L. T. Rep. 34; 39 Ch. Div. 272). That case is not decisive of the point raised before me, inasmuch as no question of principle there arose, but I think that the judgments of the Court of Appeal do show that the only rights which could be lawfully acquired by a surveyor of highways are rights which come within the words of the section. I am of opinion that this pipe through the hedge is not a drain within the meaning of that section. It is true it may be said to drain the water off from the road, but, on the other hand, it is only a means whereby water is passed from the road on to the surface of the adjoining land, and in my opinion it is not a drain such as is contemplated by that section, which I understand to be a drain or watercourse for the conveyance of water to some proper outlet. In addition to claiming by virtue of this section, the plaintiffs also base their claim upon common law prescription, on the ground that the public, as the occupiers of the road, had for more than the statutory period enjoyed the privilege of passing out the water from the pipe, and in support of their case they cited a passage from the judgment of Lord Cairns in the case of Rangeley v. Midland Railway Company (18 L. T. Rep. at p. 70; L. Rep. 3 Ch. 310-11) as supporting the view that a right of way is not an easement, and therefore the surface of the road was in occupation of the persons using the road. In my opinion this contention of the plaintiffs cannot be supported. In order to found a claim to an easement of this character there must be a dominant tenement to which the easement can be attached. I can find no authority for the suggestion that a right of way can be considered to be such a dominant tenement for the purpose of having such a right attached to it, and there seem to me to be great difficulties in coming to that conclusion. I think that the relators have not on either ground acquired a legal right to have this particular pipe maintained and thereby to discharge the water upon the defendant's land, and for these reasons I am of opinion that the action fails.

Judgment for the defendant. Solicitors for the plaintiffs, May, Sykes, and Co. Solicitor for the defendant, Arthur Pearce.

Wednesday, April 17, 1801.
(Before Lord ALVERSTONE, C.J. and
LAWRANCE, J.)

REX v. ROBERTS; Ex parte KYLE. (a) Weights and measures-Fees for verification and stamping-Power of county council to remitWeights and Measures Act 1878 (41 & 42 Vict. c. 49), s. 47-Weights and Measures Act 1889 (52 & 53 Vict. c. 21), s. 13.

A county council has no power to direct an inspector of weights and measures not to take fees in respect of the verification and stamping of weights and measures. No such power is conferred by reason of sect. 13 of the Weights and Measures Act 1889.

CAUSE shown against a rule nisi for a writ of certiorari to remove to the King's Bench Division a certain surcharge of 11. 11s. 4d. made by the auditor appointed by the Local Government Board to audit the accounts of the county councils in the Eastern Counties Audit District upon the audit held by him upon the accounts of Thomas Kyle, an inspector of weights and measures for the county of Bucks.

At a meeting held on the 10th Nov. 1899, the Bucks County Council duly passed a resolution that the fees for verification and stamping of weights and measures and weighing instruments charged under sect. 13 of the 1st schedule of the Weights and Measures Act 1889 should cease to be taken on and after the 1st Jan. 1899, but that traders should 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 this resolution, and acting upon the instructions of the county council, the inspector of weights and measures ceased to take any fees for the verification and stamping of weights, measures, and other instruments under sect. 13 and the 1st schedule of the Weights and Measures Act 1889.

Upon the audit of the accounts for the year ended the 31st March 1900, the district auditor surcharged the inspector of weights and measures with the sum of 11. 11s. 4d., representing fees which he should have collected but for the resolution of the council and the consequent instructions given to him by the county council, but which he in fact never collected or received.

The surcharge had not been paid by the inspector, and it was submitted that it was improper and illegal as, under sect. 13 of the Weights and Measures Act 1889, there was no obligation upon him to collect any such fees or upon the county council to insist upon their being paid.

The grounds upon which the writ was sought were (1) that, under the Weights and Measures Act 1889, s. 13, there was no legal obligation on the inspector to take fees; (2) that the order of the county council directing him not to take fees was legal and binding upon him; and (3) that in any event he was wrongly surcharged in respect of fees which he had not in fact received.

By the Weights and Measures Act 1878 (41 & 42 Vict. c. 49), s. 47:

An inspector under this Act may take in respect of the verification and stamping of weights and measures such fees, not exceeding those specified in the 5th (a) Reported by W. DE B. HERBERT, Esq., Barrister-at-Law.

[K.B. DIV.

schedule to this Act, as the authority appointing him from time to time fix, and shall at such times, not less often than once a quarter, as the said authority direct, account for and pay over to the treasurer of the local rate, or such person as the said authority direct, all fees taken by him.

By the Weights and Measures Act 1889, s. 13 (1):

An 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 1st schedule to this Act, and no others, and no discount shall be allowed, and such inspector shall at such times, not less 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.

In the 1st schedule to the Act there is a list of fees headed :

Fees to be taken on the verification and stamping of weights, measures, and weighing machines by inspectors of local authorities.

C. A. Russell, K.C. showed cause.-There is no power in any of the statutes which enables the county council to pass a resolution of this kind. The section now in force is sect. 13 of the Weights and Measures Act 1889. It is not contended that the inspector can take anything but the fees in the schedule; but the other side say that he need not take anything at all. Sect. 47 of the Weights and Measures Act 1878 is repealed together with the 5th schedule of that statute by the Act of 1889. I submit that the auditor was quite right to surcharge this amount, and the rule should be discharged.

Macmorran, K.C. (McIntyre with him) in support.-Under sect. 43 of the Weights and Measures Act 1878 the inspector is appointed by the local authority, that is now the county council. It was found that under sect. 47 there was no uniformity, and so the Act of 1889 was passed, simply to give that uniformity. The law was not altered, and I submit is the same as under sect. 47. By sect. 13 of the Act of 1889 the inspector acts as the agent of the local authority, and as such is accountable to them. [Lord ALVERSTONE, C.J.-Then what was the object of repealing the first part of sect. 47 P] All the Act of 1889 did was to fix the fee, and not to fix the minimum. The section is in reality only permissive and not imperative.

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 power to remit these fees by instructing their inspector not to take them. In this case it appears that under the 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 that he ought to have collected. The important question is, Has the county council, under the Weights