Pashley moved for a rule, calling upon Robert Jennings and William Pexton, overseers of the poor for the township of Storwood, in the East Riding of the county of York, to shew cause why a criminal information should not issue against them for alleged misconduct towards certain paupers, Wilson Alison, his wife, and four children. He applied, upon affidavits, stating that the paupers were chargeable to Storwood, which was a township maintaining its own poor, and that an order of removal had been obtained by the overseers of Storwood, removing the pauper, W. A, and his family, to the parish of Sutton-upon-Derwent, in the East Riding of the same county, which was quashed upon appeal to the Quarter Sessions, in July 1844. A subsequent order, removing the paupers to the same parish, was made on the 14th of September 1844, but no copy was ever served upon the parish of Suttonupon-Derwent. That the pauper Alison being thereupon turned out of a house which he had previously occupied, applied to the overseers, Jennings and Pexton, for relief, which they refused to give. The affidavits then stated various attempts on the part of the overseers to drive the paupers out of Storwood, and to induce them fraudulently to remove themselves to the parish of Suttonupon-Derwent, for the purpose of fixing that parish with their support; that Pexton, who was also a publican, had refused the pauper and his family admittance and shelter in his house, alleging that he had nothing to do with them; that various inhabitants of Storwood had driven them away from their houses, on the ground that they did not dare to offend Jennings, who, besides being overseer, was the principal person in the township; and that one Padget, who was then in Jennings's service, had turned the pauper's wife and family out of his house at night, by his master's orders. NEW SERIES, XIV.-MAG. CAS.

[WILLIAMS, J.-Is there any instance of the Court having granted a criminal information against overseers, for misconduct in their office? The offence is notoriously the subject of an indictment.]

In The King v. Herbert (1), an information. was granted against overseers for procuring the marriage of a woman, in order to change her settlement. So, in The King v. Tarrant (2), for procuring a pauper to marry another pauper, who was with child of a bastard. Where overseers procured a soldier to marry a pauper idiot, who was chargeable to their parish, an information was granted-The King v. Watson (3). In 2 Nolan's Poor Law, p. 371, it is stated, "Overseers may be punished for most breaches of their duty, by information or indictment." The principle which was laid down in The King v. Barrat (4) is applicable to the present case, and the overseers may come and shew what their motives were in acting as they did; besides, it is much more convenient, and productive of less expense, that this matter should be settled by this Court, than by a Court of gaol delivery. He also referred to 1 Russell on Crimes, p. 52. (Greaves' edit.)

WILLIAMS, J.-If these overseers have persuaded themselves that they are beyond the reach of the law, they may chance to find themselves mistaken, provided the facts make out such a case against them as has been stated. But the single question which I have to decide is, whether there is any sufficient reason shewn for my interfering in the unusual mode suggested, namely, by granting a criminal information. I pronounce no opinion upon the facts of this case, appearing as they do before me merely upon an ex parte statement; but supposing that statement to be correct, the conduct of these persons is certainly punishable by indictment. That is the ordinary course of proceeding, and an information is only granted where an extraordinary remedy is required; and I have always understood that one at least of the chief ingredients in an application of this nature ought to be, the necessity of a prompt interference, in order to prevent a breach of the peace. I

(1) 2 Ld. Kenyon, 466. (2) 4 Burr. 2106. (3) 1 Wils. 41.

(4) 2 Dougl. 465, a.

I

cannot see anything which seems to call for this extraordinary interference here. If, indeed, Mr. Pashley had made out that if this application were granted the proceedings would have been lighter or less expensive to the pauper, that might have been a strong argument with me for granting it; but it seems to me that the expense will be identically the same, even supposing an indictment found at the assizes were removed, as it probably would be, into this court, when it would be sent down as a Nisi Prius record for trial. I see no reason, therefore, for taking this case out of the ordinary course of proceeding by indictment, and must therefore refuse the rule.

Poor-rate-Rateability-Beneficial Occupation Statute-Constructive Incorporation of earlier into subsequent Statute by words of reference.

By a local act, 8 & 9 Geo. 3. c. xliv. trustees therein appointed were empowered to purchase certain land, and to convert it into a place for holding a market in the town of T, and for erecting a market-house; and it was provided that the trustees should stand seised of the land, buildings, &c. in trust, first, to pay the expenses of obtaining the act; secondly, to pay off all debts incurred in the purchase of the ground and erecting the market, and also all expenses incurred in providing and lighting lamps in certain streets in the said town, and purchasing the stalls, &c., and certain mortgages authorized by the act, and the interest thereof; and after the discharge of the same the market and the rents and profits thereof should be and remain an estate for the use and benefit of the parish of M, in the said town of T. for ever, and should and might be applied by the said trustees to the clothing, educating, and placing out apprentices of the children of the poor inhabitants of M.

Section 26. of this act provided, that the share and proportion which these premises contributed to the poor-rate in 1768, should be for ever paid by the trustees in respect thereof. Under this act a market was erected in the parish of M.

By a subsequent local act, 57 Geo. 3, the trustees were empowered to purchase other lands for the purpose of enlarging the market, and it was provided that the act first mentioned, and all and every the authorities, powers, &c. matters and things therein contained, except such as should be thereby varied, altered, or repealed, or as were repugnant to or otherwise provided for by that act, should be in full force and effect as effectually as if they had been repeated and reenacted in the body of that act.

Under the latter act the trustees purchased land and buildings within the parish of B, and converted them into a butcher market, and occupied all the premises, and collected tolls by means of a clerk. No surplus revenue had ever existed after paying the annual expenses and interest on the mortgages.

Held, first, that the trustees were liable to be rated to parish B. for the market-building, stalls, &c. in that parish.

Secondly, that the clause 25. of the former act was not incorporated into the latter, so as to limit the proportion of rate in the buildings in the parish B.

On an appeal against a rate made for the relief of the poor of Bishop's Hull, in the county of Somerset, whereby the appellants were rated as owners and occupiers of a certain building called a market-place, and certain butchers' stalls in the parish of Bishop's Hull, the Sessions confirmed the rate subject to the opinion of the Court, on a CASE, which stated, that by an act of parliament, 8 & 9 Geo. 3. c. xliv., intituled 'An act for erecting a market-house and holding a market in the town of Taunton, in the county of Somerset, and for preventing the holding of any market in the streets of the said town, and for cleansing the streets and preventing nuisances and obstructions therein, and for lighting certain streets in the said town,' the trustees therein appointed were empowered to purchase certain ground and buildings therein described, situate within the said town of Taunton, and to convert the said ground into a place for holding the said market, and for erecting a market-house. And it was thereby enacted (sect. 21.) “that all lands, tenements, and hereditaments to be purchased by virtue and under the authority of that act for the site of the said market as aforesaid, and all buildings, houses, sheds,

stalls, standings, and other erections to be built or set up thereupon, and the rents and profits arising from the same, should be and were thereby vested in the said trustees and their successors for ever, and that they should stand seised thereof in trust for the several uses, intents, and purposes thereinafter men tioned and declared concerning the same; that is to say, that the said trustees should out of the first monies to be borrowed or raised by any ways and means under the authority of the act, pay and discharge the costs and expenses of obtaining and passing that act; and should, in the next place, pay off and discharge all debts that should be incurred by the purchase of the said lands, tenements, and hereditaments, and the ground whereon to erect the said market and buildings; and all such charges and expenses as should necessarily attend the erecting and constituting the same; and also the expenses of erecting, maintaining, and lighting of lamps in certain streets in the said town therein particularly mentioned; and also the expenses of purchasing the stalls and standings erected in the then present market on market days, therein before directed to be purchased by the said trustees; and also certain mortgages by the said act authorized to be made by the said trustees as therein before mentioned, and the interest thereof, so long as any of them should remain unpaid; and after the discharge of the same, and of all debts accrued on account of the said market and buildings, the said market and buildings, and the tolls, rents, and profits thereof or arising thereby, should be and remain in the said trustees in trust as an estate for the use and benefit of the parish of St. Mary Magdalene, in the said town of Taunton, for ever; and should and might be applied by the said trustees to the clothing, education, and placing out apprentices of so many of the children of the poor inhabitants of the said parish of St. Mary Magdalene, as the said trustees should from time to time direct or appoint."

Section 25. provided, "that the share and proportion which the several grounds, houses, and buildings which should be vested in the said trustees by virtue of that act, did contribute or pay, or was or were charged with towards the land-tax, church, and poor-rates in the year 1768, according to the rents of the same as they were then rated, should be

for ever paid to the collector or collectors, and other proper officer or officers authorized to receive the same, by the said trustees; and the said trustees should for ever thereafter be charged with and liable to the payment thereof; and such payments as aforesaid should be in lieu of all taxes, rates, or any impositions of what kind or nature soever to be paid in respect of the said market-house and other houses and buildings to be erected by virtue of the said act."

In pursuance of the said act the trustees of Taunton market, in the year 1768, purchased the grounds and buildings mentioned in the said act, and erected a market and market-house on the said ground, all in the parish of St. Mary Magdalene, Taunton.

In the year 1817, the trustees, finding the market was not sufficiently large, obtained an act, 57 Geo. 3. c. lxv., intituled 'An act for enlarging the market-place, and regulating the market in the town of Taunton, in the county of Somerset, and for better lighting, cleansing, and otherwise improving the said town; and for amending an act of his present Majesty relative thereto,' by which it was enacted (sect. 1), that it should be lawful for the trustees to treat, contract, and agree with any person or persons who should be willing to sell the same, for the purchase of any messuages, houses, buildings, gardens, and other ground within 1,000 yards of the site of the said then present market; and, after purchasing the same, to appropriate a competent part thereof for enlarging the market for the sale of cattle, swine, and any other beasts, articles, and things, and for any other purposes of the said market; and that from and after the said additional ground should be so set out for the purposes of the said market, the same should be deemed and taken as part of the then present marketplace to all intents and purposes."

It was further enacted (sect. 24), "that the said recited act, 8 & 9 Geo. 3. c. xliv., and all and every the authorities, powers, provisions, regulations, clauses, matters and things therein contained, except such of them as were thereby varied, altered or repealed, or as were repugnant to, or otherwise provided for by that act, should be in full force and effect, and should extend to, and be practised, applied, and put in execution for effecting the purposes of that act as fully and effectually, to all intents and purposes,

as if all such authorities, powers, provisions, regulations, clauses, matters, and things therein contained were repeated and reenacted in the body of that act with relation thereto."

The trustees, under the authority of the last act, purchased land and buildings situate within the parish of Bishop's Hull, within 1,000 yards of the site of the old market, and within the town of Taunton, and converted the same into a butchery or butcher market, being the premises in question.

The trustees are occupiers of the premises, and collect by means of their clerk and agents the tolls and money paid by those who frequent the market in respect of the butchery, and the stalls therein.

There is a debt of 18,000l. charged by way of mortgage on the tolls of the market at 47. 10s. per cent. interest upon certain instruments or deeds-poll (a copy of one of which accompanied the case). Some of these securities are held by three of the trustees rated, and the latest date of any of them is

1833.

At Christmas 1843, there was a balance of 3591. 4s. 8d. due to the treasurer of the trustees upon the balance of account, which balance has been in some years greater, and in some less, and has become due by reason of monies having been from time to time advanced by him to defray the current expenses of the market, but the same is not charged by mortgage upon the tolls of the market. The revenue of the market is in most years sufficient to meet the annual expenses of the market, together with the interest of the debts above mentioned, but no surplus has ever existed after payment of the said expenses and interest, and no part of the mortgage debt above mentioned has yet been paid off.

Part of the houses and buildings standing on so much of the site of the market as is in

the parish of Bishop's Hull, was, in the year 1817, rated to the relief of the poor of the said parish, thus: "Messrs. Brigdale & Co.-Bank 15s." The remaining part of the said houses and buildings was not rated in the said year.

No evidence was given of any rate charged upon the said premises in the year 1768, nor of the rateable value of the property, nor of any part thereof, nor of any rent paid for the same in that year.

The two acts above mentioned of 8 & 9 Geo. 3. c. xliv. and 57 Geo. 3. c. lxv. were to be taken as forming part of the case.

The rateable value of the premises in question was correct, supposing the trustees to be rateable for the same, according to the 6 & 7 Will. 4. c. 96.

At the trial of the appeal the trustees contended, first, that they were not rateable at all, inasmuch as they had no beneficial occupation of the property rated, the tolls and monies arising therefrom being entirely devoted to the purposes specified in the said acts for the regulation of the market; secondly, that if rateable at all in respect of the said buildings, they were rateable only in one of the following ways: first, according to the share and proportion which the land and buildings taken by them under the act 57 Geo. 3. c. 65. did contribute or pay, or were charged with towards the poor-rate in the year 1768, according to the rents of the same as they were then rated, or, secondly, according to the share and proportion which the said land and buildings did contribute or pay, or were charged with towards the poorrate in the year 1817, according to the rents of the same as they were then rated.

If the Court should be of opinion that the trustees were not liable to be rated, or were rateable only in the proportion which the land and buildings taken by them under the said act, 57 Geo. 3. c. lxv., did contribute or pay, or were charged with towards the poorrate in the year 1768, according to the rents of the same as they were then rated, the order of Sessions was to be quashed, and the rate amended by striking out the names of the trustees. If the Court should be of opinion that the said trustees were rateable only in the proportion which the land and buildings taken by them under the said act, 57 Geo. 3. c. 65, did contribute or pay, or were charged with towards the poor-rate in the year 1817, according to the rents of the same as they were then rated, the rate was to be amended by substituting 157. as the rateable value of the market-house and buildings, and 6s. 3d. as the rate thereon. If the Court should be of opinion that the trustees were rateable for the said premises according to the 6 & 7 Will. 4. c. 96, the order of Sessions was to be confirmed.

Moody (with whom was Phinn), in support of the order of Sessions.-Two points

are raised by the appellants in this case. With respect to the first, it can hardly be contended that the trustees are not liable to be rated at all, when the 25th section of the act expressly recognizes such liability. Besides, it is clear that there is a pecuniary benefit and return in the hands of the trustees. The distinction between public and charitable purposes, in the application of the funds, as affecting the question of rateability, is now fully established-The King v. St. Giles, York (1), The Queen v. Sterry (2). Then it appears from the case that the premises, if let, would produce a rent, and the application cannot be treated as one for a charitable purpose, as it is a trust for the benefit of another parish-The Governors of the Poor of Bristol v. Wait (3), The Queen v. the Wallingford Union (4). Those cases are not distinguishable in principle from the present. Here the original mode of occupation was by letting the stalls, &c. to butchers, in which case the butchers would have been rateable if the letting was

by the month or year. If the whole market were let to a tenant, such tenant would be rateable. It may, perhaps, be contended, that the premises being encumbered by the debt, no profit is at present derived from them, but The Queen v. the Blackfriars Bridge Company (5) is an answer to this objection. All that can be said is, that the profit is received by the mortgagees. This is not an occupation for the benefit of the public, as in The King v. the Inhabitants of Liverpool (6), and The King v. the Trustees of the Weaver Navigation (7). In the first of those cases there was a distinct enactment that the dock duties should be applied only in repairing and maintaining the docks, and "to no other use or purpose whatever." Secondly, as to the amount of the rate. The clause 25. of the first act cannot be considered as re-enacted in the second. It

(1) 3 B. & Ad. 573; s. c. 1 Law J. Rep. (N.S.) M.C. 50.

(2) 12 Ad. & El. 89; s. c. 9 Law J. Rep. (N.s.) M.C. 105.

(3) 5 lbid. 1; s. c. 5 Law J. Rep. (N.s.) M.C. 113.

is ambiguous and "repugnant" to the former

act.

[WIGHTMAN, J.-It might raise a difficult question of fact, but I do not see how it is termed ambiguous, or that it is repugnant to the latter act.]

The Court will put such a construction on it as is most consistent with the other provisions and with the law-The Queen v. the Monmouthshire Canal Company (8), The Queen v. the Leeds and Liverpool Canal Company (9), The King v. the Birmingham Canal Company (10). This is the act procured by the trustees, and will be construed most strongly against them.

Cockburn (Kinglake, Serj., Carey, and Carrow were with him), contrà.-There is here no beneficial occupation by the trustees, and the tolls are appropriated by the act to public purposes; the case, therefore, falls within the principle of The King v. Terrott (11). In that case Lord Ellenborough says, "If the party rated have the use of the building, or other subject of the rate, as a mere servant of the Crown, or of any public body, or in any other respect for the mere exercise of a public duty therein, and have no beneficial occupation of or emolument resulting from it in any personal or private respect, then he is not rateable." Another leading case is The King v. the Commissioners of Salter's Load Sluice (12). Here the trustees have no power beyond that which is given by the act, and cannot apply the tolls to purposes of their own. Where then is the beneficial occupation? The whole amount raised is disposed of under the act of parliament-The King v. the Commissioners for Lighting Beverley (13).

[COLERIDGE, J.-If the act of parliament had authorized the trustees to put the money into their own pockets, it would hardly be said that they were not rateable, and yet they would dispose of the money under the act. It is not uncommon to provide that a portion shall be devoted

(8) 3 Ad. & El. 619.

(9) 7 Ibid. 671; s. c. 7 Law J. Rep. (N.s.) M.C.

(10) 2 B. & Ald. 570.

(11) 3 East, 506.

(12) 4 Term Rep. 730.

(13) 6 Ad. & El. 650; s. c. 6 Law J. Rep. (N.s.) M.C. 84.