Clerk of the Peace for the City of Westminster-Middlesex Sessions-Emoluments of Office-Statute 7 & 8 Vict. c. 71. ss. 11, 12. The 11th section of the statute 7 & 8 Vict. c. 71. (the act for the better administration of criminal justice in Middlesex') enacts, that, after the session of the peace which shall be holden in and for the city and liberty of Westminster next after the passing of that act, sessions of the peace in and for the said liberty shall cease to be holden, and the sessions to be holden in and for the county of Middlesex shall be holden by adjournment within the said city and liberty, and shall have full jurisdiction over all things cognisable by the sessions for the said city and liberty; and that the inhabitants of the said city and liberty shall not be exempted from serving on juries at the sessions of the peace for the county of Middlesex holden within the said city and liberty. The 12th section enacts, that the persons holding the several offices of High Bailiff of Westminster, Clerk of the Peace and all other officers of the Court of Sessions of the Peace for the said city and liberty shall, so long as they shall be entitled to hold their several offices, execute the duties and be entitled to the emoluments within the said city and liberty of the several offices of sheriff, clerk of the peace, and other corresponding officers of the county of Middlesex: Provided always, that the records of every session of the peace for the said county, holden within the said city and liberty, shall be sent within fourteen days after such session, by the clerk of the peace of the said city and liberty to the clerk of the peace of the said county, and shall be kept by him with the other records of his office. There are duties belonging to the office of Clerk of the Peace for Westminster other than any which he may have in respect of business done at General or Quarter Sessions. After the passing of the act, the person who had acted as Clerk of the Peace for Westminster, at the sessions held in and for the city of Westminster, continued to act as clerk of the peace at the adjourned sessions for the county until his resignation, and received a sum of money annually, in lieu of the emoluments belonging to the office. Upon his resignation, the plaintiff was appointed Clerk of the Peace for Westminster, and claimed to be entitled to the emoluments of clerk of the peace within the said city and liberty-Held, by the Court of Exchequer Chamber, that he was not so entitled, for that the provisions in section 12. applied only to those who held the offices at the time of the passing of the act, and not to their successors in office. [For the report of the above case, see 28 Law J. Rep. (N.S.) Q.B. p. 238.] 1859. April 30. THE QUEEN . THE GREAT Towns' Improvement Clauses Act, 1847, 10 & 11 Vict. c. 34. ss. 53, 156.—Meaning of Word "theretofore" in Section 53.Improvement Rate. The word "theretofore," in section 53. of 10 & 11 Vict. c. 34, is to be construed in its ordinary grammatical sense, and refers to streets which have at any time been well and sufficiently paved and flagged, or otherwise made good to the satisfaction of the Commissioners, and not to the state of such streets at the time of the passing of the special act, incorporated with the general act. Therefore, where a street, which was a public highway, had once been put in good repair, but which, at the time of the passing of the special act, was out of repair,-Held, that the Commissioners had no power, under section 53. of the general act, to do the necessary repairs, and charge the expenses on the adjoining occupiers. viously to the passing of the special act, well and sufficiently paved, and otherwise made good to the satisfaction of the Commissioners for the time being. At the time of the passing of the special act, the kerbs and gutters in the streets opposite the appellants' property had become out of repair, and these were repaired by the Improvement Commissioners, who, in order to defray the expenses, made a private improvement-rate upon the appellants and other owners of property abutting upon the said streets, under sections 53. and 156. of the general act. The appellants having refused to pay this rate, a summons was issued, at the hearing of which they contended that they were not liable to such rate, inasmuch as the parts of the streets adjoining their property had been at one time in good repair, to the satisfaction of the Commissioners for the time being. The question for the opinion of the Court was, whether, on these facts, the appellants were liable to the rate. The Scotland, for the respondents. rate is good. Section 53. enacts, that "if any street, although a public highway at the passing of the special act, have not theretofore been well and sufficiently paved and flagged or otherwise made good, the Commissioners may cause such street, or the parts thereof not so paved and flagged or otherwise made good, to be paved and flagged, or otherwise made good, in such manner as they think fit; and the expenses incurred by the Commissioners in respect thereof shall be repaid to them by the occupiers of the lands abutting on such street, or such parts thereof as have not been theretofore well and sufficiently paved and flagged or otherwise made good; and such expenses shall be recoverable from such occupiers respectively as hereinafter provided with respect to private improvement expenses, and thereafter such street shall be repaired by the Commissioners out of the rates levied under this or the special act." Here the streets in question were public highways at the time of the passing of the special act, and the Commissioners have to look at their state at that time; and if they are out of repair it is the duty of the Commissioners to cause them to be made good, and to levy the rate as they have done. It is no answer to say that they have once been in good repair. It cannot be the duty of the Commissioners to inquire into the previous history of the public highways of the town before the local act was passed. [HILL, J.-You would read "theretofore" as 66 at the time of the passing of the local act. LORD CAMPBELL, C.J.-The construction contended for by the respondents is most unreasonable and ungrammatical. The clause refers to such streets "as have not theretofore been " well and sufficiently paved; that must refer to streets that have been once sufficiently paved.] Phipson, for the appellants, was not heard. Per Curiam (1)— 1859. June 10. Judgment for the appellants. M'CANNON AND OTHERS v. Poor-Rate-Parish, Boundary of. In beating the boundaries of the parish of Rotherhithe the authorities proceed along the embankments, wharves, or other shore of the river Thames, while in the adjoining parish of Bermondsey the authorities go along the middle of the river; the parish of Rotherhithe has never done or exercised any parochial act or authority beyond the embankments, &c.:-Held, that the inference from the above circumstances was, that the parish of Rotherhithe extended to the middle of the river; and that a pier built on piles in the bed of the river, opposite one of the embankments, but not connected with it, was rateable to the poor-rate of the parish. Case stated without pleadings, of which the following parts only were retained. The action was brought to recover 21. 18s. 9d., the amount of rates under five several assessments to the poor-rate of the parish of Rotherhithe, in the county of Surrey, claimed to be payable to the plaintiffs, the overseers of the parish, from the defendants, as managers for certain watermen of the river Thames, who, for the (1) Lord Campbell, C.J. and Hill, J. purpose of the case, were to be taken as the exclusive occupiers of the Commercial Dock Pier, in respect of which the defendants were rated. "The pier projects into the river Thames, and commences at and from a distance of about two or three inches away from a certain embankment, wharf-wall or landingplace, which embankment is situate within the parish of Rotherhithe; but whether the river front of the said embankment forms, or is, in fact, the river boundary of the said parish, is unknown to either the plaintiffs or the defendants, except in so far as the same may be inferable from or determined by the facts. The plaintiffs, however, admit that in beating the boundaries of the parish the parochial authorities do not for that purpose proceed on the river, but along the embankments, wharves, walls, landing - places, or shore abutting thereon; whereas, in the adjoining parish of Bermondsey, the parochial authorities, in beating the boundaries of that parish, go along the middle of the river Thames. The plaintiffs also admit that they are not aware of the parish of Rotherhithe having at any time done or exercised any parochial acts or authority beyond the said embankments, wharf-wall, or landing-place." [The rest of the case contained details of the formation of the pier, which was erected in 1854, under the sanction of the corporation of London, in lieu of the floatingpier; the pier is 203 feet long, consisting chiefly of a wooden platform, which extended to about 20 feet beyond low water-mark, with a floating-barge or dummy at the end. The platform is raised on wooden piers fixed in the bed of the river, but no part of it rests on or touches the embankment, being two or three inches from it; the dummy is moored in its place by anchors and chains, and is not attached to nor touches the platform. All the profits the defendants derived from the pier were payments made by any persons using it for embarking or landing from the river.] The question for the opinion of the Court was, whether, under the circumstances stated, the defendants were liable to be rated in respect of their occupation of the pier, or any part thereof. Lush (Phear with him), for the plaintiffs. -The only real question in the case is, whether the parish of Rotherhithe extends to the middle of the river. Prima facie, the boundaries of a county extend ad medium filum aquæ, and so of a parish. This is not like the case of the shore of a parish adjoining the open sea. The Court then called on J. Simon, for the defendants.-The onus of proving that any particular spot is in a particular parish lies upon the parish authorities, like the proof of any other condition precedent to the liability of the persons they seek to rate. The facts, or want of facts, in the present case, so far from raising any presumption that the parish of Rotherhithe extends to the middle of the river, rebut the presumption, if any such there be. It is admitted, that the parochial authorities of Rotherhithe have never exercised any parochial authority beyond the embankment; and the fact, that in beating the boundaries of the next parish, the authorities proceed on the river in a different manner from those of Rotherhithe, is a fact from which it may be inferred that the boundaries of the two parishes are also different. But there is no presumption that a sumption that a parish extends beyond the edge of the river. There is a presumption that the ownership of lands extends beyond, or the boundary of the county, but not of a parish. The ownership of land between high and low watermark, in estuaries and navigable rivers, is prima facie in the Crown; and the Thames Conservancy Act (20 & 21 Vict. c. cxlvii.) confirms this prima facie right in the Crown; but it says nothing about parochiality. Prima facie, therefore, the land on which the pier rests is extra-parochial; and in The Queen v. Musson (1), land between high and low water-mark was held to be prima facie extra-parochial; that no doubt was land towards the open sea: but for this purpose there is no distinction between the open sea and a navigable river; and it is in addition to be observed, that land between high and low watermark out at sea belongs to the adjoining county, and yet, in that case, it was held prima facie to be extra-parochial. the other point he admitted that, if the (1) 27 Law J. Rep. (N.s.) M.C. 100; s. c. 8 E. & B. 900. [On Court were against the defendants on the first point, The Queen v. Forrest (2) was conclusive against them.] Lush observed, that in that case, it was admitted that the parish of East Greenwich, which lies below Rotherhithe, extended to the middle of the Thames. LORD CAMPBELL, C.J.-At Nisi Prius I should direct a jury to presume from the circumstances of this case, that the land on which the pier is built was within the parish of Rotherhithe. When the beaters of the boundaries go as near the extremity of the parish as the nature of the land will admit of, what more is necessary? They assume that it is well known that the parish extends to the middle of the river, and so the authorities of Rotherhithe (though other parishes act differently) content themselves with keeping along the dry land; and the acts of the Bermondsey authorities are rather against than in favour of the exemption claimed by the defendants, as shewing that other neighbouring parishes on the Thames extend to the middle of the river. Per Curiam (3)— 1859. June 2. Judgment for the plaintiffs. THE QUEEN v. THE JUSTICES Lunatic Pauper-Appeal against Order of Settlement of-to what Quarter Sessions -16 & 17 Vict. c. 97. s. 108. An order, under the 16 & 17 Vict. c. 97. s. 97, adjudging the settlement, &c. of a pauper lunatic confined in the borough lunatic asylum, was obtained by a parish situate wholly within a borough having separate quarter sessions, and was made by two Justices of the borough, the asylum being also within the borough:-Held, that the appeal against the order, under section 108, was to the county, and not to the borough, quarter sessions. Wills, in Easter Term, obtained a rule (2) 27 Law J. Rep. (N.s.) M.C. 96; s. c. nom. Forrest v. the Overseers of Greenwich, 8 E. & B. 890. (3) Campbell, C.J., Wightman, J., Erle, J. and Crompton, J. calling on the Justices of Warwickshire to shew cause why a mandamus should not issue commanding them to enter continuances to the next Quarter Sessions upon the appeal of the overseers of St. Anne, Westminster, against an order of two Justices of the borough of Birmingham, adjudging the settlement of A. J. Potter, a pauper lunatic, to be in the parish of St. Anne, &c., and at such sessions to hear and determine the merits of the said appeal. It appeared from the affidavits that, on the 14th of January 1859, the appellants were served with an order of two Justices of the borough of Birmingham, in the county of Warwick, dated the 13th of January, and made under the 16 & 17 Vict. c. 97, whereby the parish of Birmingham was adjudged to be the last place of settlement of A. J. Potter, a pauper lunatic, then confined in the Birmingham Borough Lunatic Asylum, situate in the said borough, to which asylum the said pauper had been sent from the parish of Birmingham, and where he was then confined at the charge of the said parish of Birmingham; and the guardians of the poor of the Strand Union, in which union the parish of St. Anne is situate, were ordered to pay to the respondents the expenses incurred in respect of the said lunatic. On the 3rd of February notice of appeal on behalf of the guardians of the Strand Union was served on the guardians of Birmingham, giving them notice that the appellants "do intend, at the Quarter Sessions of the Peace for the borough of Birmingham, to be holden next after the expiration of fourteen days from the service of this notice, to commence and prosecute an appeal against " &c. On the 26th of March a letter was sent, on behalf of the appellants, to the officers of the respondent parish, requesting that the notice of appeal might be considered as made for the Easter Quarter Sessions for the county of Warwick. The whole of the parish of Birmingham is in the borough of Birmingham. The borough has separate Quarter Sessions, &c., under the 5 & 6 Will. 4. c. 76. At the Easter Sessions for the county, no grounds of appeal having been served on the respondents, a motion to enter and respite the appeal was opposed on behalf of the respondents on two grounds: first, that the appeal ought to have been to the Quarter Sessions for the borough; and, secondly, that, assuming the appeal lay to the county Sessions, the appellants ought to have been prepared to try the appeal, and not merely to enter and respite it. The Quarter Sessions refused to allow the appeal to be entered, on the first ground, viz., that the appeal ought to have been to the borough Sessions, and that the county Sessions had no jurisdiction. Bovill and Isaac Spooner shewed cause. The borough, and not the county Quarter Sessions, had jurisdiction over this appeal. Under the Municipal Corporation Act, 5 & 6 Will. 4. c. 76. s. 105, it has been decided that the borough Quarter Sessions have exclusive jurisdiction to hear appeals against orders of removal made by borough Justices-The Queen v. Shropshire (Justices) (1). The present order of adjudication, which for all practical purposes is an order of removal, is made by two borough Justices, under the 16 & 17 Vict. c. 97. s. 97; and by section 108. it is enacted that, "If the guardians of any union or parish, or the overseers of any parish, feel aggrieved by any such order adjudging the settlement of any lunatic, they may appeal to the next general Quarter Sessions for the county in behalf of which such order has been obtained, or in which the union or parish (2) obtaining the order is situate; or in case such parish or union extend into several jurisdictions, then to the next general Quarter Sessions for the county or borough in which the asylum in which the lunatic is confined is situate." The two statutes must be read together; the jurisdiction of the borough Justices over appeals still continues, and the 108th section of the latter act must be read "county or borough in which the parish obtaining the order is situate." [LORD CAMPBELL, C.J.-The second (1) 2 Q.B. Rep. 85; s. c. 10 Law J. Rep. (N.s.) M.C. 138. (2) That the parish of Birmingham obtained the order only appeared, on the affidavits, inferentially from the fact that the pauper was confined at the expense of that parish. act expressly points out the way in which the appeal is to be heard, viz., by the county Justices.] The act must be read with regard to the existing law. Why should the borough Quarter Sessions have jurisdiction in one instance and not in the other? Secondly, the parish of Birmingham is situate both in the county and borough jurisdiction, and the appeal under the 3rd clause would therefore be to the borough Sessions, the asylum being within the borough. [CROMPTON, J.-The last branch of the section means when the parish is not wholly within one jurisdiction, but is partly in the borough and partly in the county, then the situation of the asylum shall determine the tribunal for appeal. LORD Campbell, C.J." If the parish is partly in one jurisdiction and partly in another," not "when it is situate in two co-ordinate jurisdictions."] Assuming the county Sessions to have jurisdiction over this appeal, the Court will not send this appeal down if it cannot be tried. No grounds of appeal have been served, and the appellants ought to have been ready to try at the Easter SessionsThe Queen v. West Riding (Bromsgrove v. Halifax) (3). [LORD CAMPBELL, C.J.-The Court is clearly of opinion that the appeal under the 108th section is to the county Sessions, and the rule must be absolute to enter the appeal. As to respiting, that is a matter for the Justices in their discretion to decide, and we cannot go into that question now.] Wills, in support of the rule, was not heard. Per Curiam (4) Rule absolute accordingly (5). (3) 27 Law J. Rep. (N.s.) M.C. 269. (4) Lord Campbell, C.J., Wightman, J., Erle, J. and Crompton, J. (5) The rule was drawn up "to enter the appeal as of the last general Quarter Sessions, and if it shall appear to the Justices that the said appeal, so having been entered, ought to have been respited, then to enter continuances to the next general Quarter Sessions." |
