the appellant, we are not interfering with the maxim that, before a person can be criminally convicted, he must be shown to have a mens rea (L. Rep. 9 Q. B. at p. 295):

Reg. v. Prince, 32 L. T. Rep. N. S. 700; L. Rep. 2 C. C. R. 154; 44 L. J. 122, M. C.; 24 W. R. 76; Hearne v. Garton, 2 E. & E. 66; 28 L. J. 216, M. C. R. S. Wright (Danckwerts with him).-All the sections of the Licensing Act 1872 which make knowledge essential to the commission of an offence expressly use that word; e.g., in several sections it is provided that if a licensed person "knowingly" does such a thing, then he shall be liable to conviction. Here the word "knowingly is omitted, and, as these are sections dealing with offences against public order, the word cannot be imported into them where it is not used. rule as to guilty knowledge is a presumption merely, and the question whether knowledge is or is not essential to the commission of an offence depends on the wording of the particular statute which may be applicable to it:

The

Nichols v. Hall, 28 L. T. Rep. N. S. 473; L. Rep. 8 C. P. 322; 42 L. J. 105, M. C.; 21 W. R. 579. In Reg. v. Bishop (42 L. T. Rep. N. S. 240; 5 Q. B. Div. 259), where the defendant was convicted of receiving two or more lunatics into her house without a licence, and where the jury found that, though the persons so received were lunatics, the defendant honestly and on reasonable grounds believed that they were not lunatics, it was held that such belief was immaterial, and that the conviction was right:

Reg. v. Woodrow, 15 M. & W. 404: Attorney-General v. Lockwood, 9 M. & W. 378. So knowledge on the part of the seller that an article is adulterated is not necessary to sustain a conviction under sect. 2 of the Adulteration Act 1872 (35 & 36 Vict. c. 74):

Roberts v. Egerton, 30 L. T. Rep. N. S. 633; L. Rep. 9 Q. B. 494; 43 L. J. 135, M. C.; 22 W. R. 797; Fitzpatrick v. Kelly, 28 L. T. Rep. N. S. 558; L. Rep. 8 Q. B. 337; 42 L. J. 132, M. Č. ; 21 W. R. 681. So, to support a charge of assault on a constable in the execution of his duty, it is not necessary that the defendant should know that he was a constable then in the execution of his duty:

Reg. v. Forbes, 10 Cox C. C. 362.

In Davis v. Harvey (30 L. T. Rep. N. S. 629; L. Rep. 9 Q. B. 433) a person was convicted of an offence under sect. 77 of the Poor Law Amendment Act 1834, although he had not a guilty knowledge. Effect ought to be given to the distinction, drawn in various sections of the Act, between offences in which knowledge is expressly made an element and those in which it is not so made.

Besley in reply.

STEPHEN, J.-I am of opinion that this conviction should be affirmed. The case turns upon the question whether the words of the 13th section, -the section under which the conviction took place taken in connection with the general scheme of the Act, should be read as implying that a licensed person, before he can be convicted under that section of selling intoxicating liquors, must know, or have reasonable means of knowing, that the person served was drunk, or whether the section amounts to an absolute prohibition against selling intoxicating liquor to a drunken person,

even when the seller had no such knowledge. I am of opinion that the words of the statute amount to an absolute prohibition of the sale of intoxicating liquor to a drunken person, and that, if the person selling the liquor did not know, or had not the means of knowing, that the person served was drunk, this is no answer to the charge, but is merely a matter to be urged in mitigation of the penalties imposed by the section. I come to this conclusion, not only in consequence of the general object of the Act, which is an Act for the prevention of drunkenness, but also by a comparison of the sections dealing with "offences against public order." In some of these sections the word "knowingly" is introduced; for instance, by sect. 14, a penalty is imposed upon a licensed person who "knowingly" permits his premises to be the habitual resort of prostitutes, and by sect. 16 a penalty is imposed for "knowingly" harbouring a constable. Now, in those cases knowledge is necessary to constitute the offence. But in the section we are now dealing with, the word "knowingly " does not occur, and I believe the object of omitting the word was to throw on the publican the duty of finding out whether the person served was drunk or not, the consequence being that, if a customer is drunk, the publican or his servants must find out that he is drunk, or take the consequences of serving him. On the other side it has been urged that the maxim of the criminal law, that before a person can be convicted of a crime there must be a 'guilty mind," applies to this case. This maxim came into use in early times, when the criminal law was in an undefined state, for the guidance of those who administered that law, and in those times the maxim may have been of general application. A "guilty mind" is a necessary element in some crimes, but those crimes have now been defined, and the maxim has been superseded in consequence of the greater precision in the definitions of crimes, and now, the question whether a guilty mind" is necessary to constitute an offence turns upon the words of each particular statute. The case of Reg. v. Prince (ubi sup.) shows that a guilty knowledge is not always necessary to constitute an offence; and Reg. v. Bishop (ubi sup.) is to the same effect. The object of this part of the Act is to preclude all disputes as to whether the publican or his servants knew, or had reasonable means of knowing, that the person served was drunk at the time, the duty being thrown on the publican to find out that the person so served was not drunk. I think, therefore, that this conviction was right.

66

MATHEW, J.-I am of the same opinion. The language of this section is perfectly clear. This section would be altogether useless if Mr. Besley's construction were to prevail. It can be no hardship on the publican to have to find out whether the customer is drunk or not. It seems to me that the word "knowingly" was purposely omitted here. I quite agree with my brother Stephen that this conviction should be affirmed..

Judgment for respondent. Conviction affirmed. Solicitors for the appellant, Peckham, Maitland, and Peckham.

Solicitor for the respondent, Solicitor to the Treasury.

Q.B. Div.]

Monday, May 26, 1884.

(Before HAWKINS and SMITH, JJ.) THE UNITED LAND COMPANY v. THE TOTTENHAM LOCAL BOARD. (a)

Local Authority-Highway-Expenses of diverting -Employment of solicitor by Local Board of Health-The Highway Act 1835 (5 & 6 Will. 4, c. 50), 88. 84, 85-The Public Health Act 1875 (38 & 39 Vict. c. 55), s. 144.

By the 84th section of the Highway Act 1835 (5 & 6 Will. 4, c. 50) it is provided that, if any party shall be desirous of stopping up, diverting, or turning any highway, he shall, by a notice in writing, require the surveyor to give notice to the churchwardens to assemble the inhabitants in vestry, and to submit to them the wish of such person; and, if such inhabitants shall agree to the proposal, the surveyor shall apply to two justices to view the same, and in such case the expenses attending such view, and the stopping up, diverting, or turning such highway, shall be paid to such surveyor by the said party, or be recoverable in the same manner as any forfeiture is recoverable under the Act.

By the 144th section of the Public Health Act 1875 (38 & 39 Vict. c. 55), it is provided that every urban authority shall, within their district, exclusively of any other person, execute the office of and be surveyor of highways, and have, exercise, and be subject to all the powers, authorities, duties, and liabilities of surveyors of highways under the law for the time being in force, and shall also have, exercise, and be subject to all the powers, authorities, duties, and liabilities which, by the Highway Act 1835, are vested in and given to the inhabitants in vestry assembled of any parish within their district, and that all ministerial acts required by any Act of Parliament to be done by or to the surveyor of highways may be done by or to the surveyor of the urban authority, or by or to such other person as they may appoint.

The U. Land Company, being desirous of diverting certain public footways on their estate in the parish of T., requested the T. Local Board of Health to assent to such diversion and to take the necessary steps to have the said footways legally closed. The T. Local Board assented,

and instructed their solicitors to take the necessary steps, and, these having been duly taken, paid the bill of costs presented by them in respect thereof, and recovered the amount thereof summarily as "expenses" within the meaning of the 84th section of the Act of 1835. Held, on case stated, that the words of the 144th section of the Public Health Act 1875 “ may be done by or to the surveyor of the urban authority, or by or to such other person as they may appoint," did not empower the local board to employ a solicitor to do the ministerial acts in question, and that therefore the solicitor's charges were not "expenses" payable by the land company under the 84th section of the Highway Act 1835. THIS was a case stated by justices of the peace for the county of Middlesex, under 20 & 21 Vict. c. 43, s. 3, for the purpose of obtaining the opinion of the court upon the questions of law arising

thereon.

The case was, so far as material, as follows:—

(a) Reported by J. SMITH, Esq., Barrister-at-Law.

[Q.B. DIV.

At a court of summary jurisdiction sitting at the County Court at Edmonton, in the county of Middlesex, on the 2nd Aug. 1883, the appellants appeared before us to answer a complaint preferred by Edward Crowne, clerk to the respondents, that the respondents being the surveyor of the highways within their district, which comprises the parish of Tottenham, in the said county, and having on the 11th July 1883 duly required the appellants forthwith to pay to them as such surveyor the sum of 751. 68. 4d., being the exping up, diverting, or turning a certain public penses attending the view by two justices, stophighway or footway, situate in the said parish, in compliance with a written notice given by the appellants to the respondents as such surveyor as aforesaid, the appellants had neglected to make payment of the said sum, and the same was still due.

The following are the particulars of the said charges:

At the same time and place the appellants appeared before us to answer two further complaints also preferred by the said Edward Crowne, which last mentioned complaints were identical in terms with the one just set out, save that the sums alleged therein to be due from the appellants to the respondents were respectively 741. 168. 7d. and 741. 68., which said sums include payments to the like amounts in each case as those included in the previous mentioned sum of 751. 68. 4d.

The said three complaints were thereupon severally heard and determined by us, and the appellants have applied to us to state and sign a case in respect of our determination of each of the said complaints. The facts proved before us, the question of law raised by the parties, and the grounds of our adjudication thereon were the same upon each of the three complaints, and this case is by consent of the parties to be read and taken as though a separate case to the same effect had been stated and signed by us in respect of

each of our said determinations.

The following facts were either proved before us or admitted by both parties:

The appellants are and have been since April 1881 the owners of an estate at Bruce Grove, rity under the Public Health Act 1875, and by Tottenham. The respondents are an urban autho

virtue of sect. 144 of that Act execute the office of and are surveyor of highways within their district, which includes the parish of Tottenham. In the month of Dec. 1881 the appellants, being desirous of diverting three public footways on their said estate within the said parish, requested the respondents to assent to such diversion, and to take the necessary steps to have the said footways legally closed. After some correspondence, and

Q.B. Div.]

in the 12th paragraph hereof, no further demand was necessary.

We accordingly convicted the appellants of the three offences complained of, and by three separate convictions adjudged that for their said offences they should forfeit and pay the three sums sought to be recovered as stated in the 1st and 2nd paragraphs hereof.

The question for the opinion of the court is whether, having regard to the above mentioned contentions of the appellants, the said convictions were right.

Asquith for the appellants.-The question to be determined is whether a surveyor of highways is, whenever anyone desires to close a highway, entitled to delegate the duties imposed upon him by the 84th and 85th sections of the Highway Act 1835 (5 & 6 Will. 4, c. 50) to a solicitor, and recover the costs of so doing on the usual scale charged by solicitors, from the person desirous of closing the highway. The contention of the appellants is that he is not entitled to do so, but that the Act throws these duties upon him personally and that he is bound to discharge them without charge. In this case the duties of surveyor of highways have, by the 144th section of the Public Health Act 1875, devolved upon the respondents as urban sanitary authority of the district. [SMITH, J.— Does not the 84th section say that the expenses are to be paid to the surveyor by the party desirous of stopping up the highway?] It says: "the expenses aforesaid," meaning the expenses attending the view. [SMITH, J.-The words are, "the expenses attending such view, and the stopping up, diverting, or turning such highway." Are not these expenses attending the stopping up of this highway?] There is a distinction between the purely ministerial acts, which the surveyor was intended to perform, and the actual out-ofpocket expenses for conveying the justices to the view, and for printing. These charges are chiefly for performing the purely ministerial duties of fixing the notices, &c., and they come within the meaning of the last paragraph of the 144th section of the Public Health Act 1875, which says that "all ministerial Acts required by any Act of Parliament to be done by or to the surveyor of highways may be done by or to the surveyor of the urban authority, or by or to such other person as they may appoint." [SMITH, J.-Do not the solicitors in this case come within the words "such other person as they may appoint ?"] No; the meaning is that, if the board has no regular surveyor, they may appoint someone pro tempore. In any case these words do not authorise the board to employ an expensive person such as a solicitor to perform these simple duties. The word must be taken to mean "such other person of a like character." The 189th section of the Act of 1875 provides what officers an urban sanitary authority may appoint, and makes no mention of the appointment of a solicitor. The Legislature cannot have intended that, in a case where there was no opposition, the surveyor of highways should be able to make the expense of stopping up a highway 751. [SMITH, J.-Have not the justices found as a fact that the expenses were necessary?] But they are not such as the section says the party stopping up the highway is to pay. SMITH, J.-Who is to pay the expenses actually incurred at the quarter sessions? The surveyor

3

[Q.B. DIV.

cannot be expected to be acquainted with the law of quarter sessions, and counsel must appear.] It is for the party closing the highway to support his application at quarter sessions or not as he chooses. The taxation has no bearing on this point. It is merely primâ facie evidence that, assuming the solicitors were rightly employed by the respondents, the charges made are reasonable.

Turner for the respondents.-It is impossible for a surveyor of highways, who has no legal knowledge, to carry through without legal advice the intricate business of closing a highway, in which the omission of a single technical requirement may asily invalidatee the whole proceedings. [HAWKINS, J.-But overseers of the poor and churchwardens frequently have most intricate duties to perform. Why should not a surveyor of highways ?] The matter being purely legal, the employment of a solicitor was reasonable, and was clearly justified under the general words of the section "such other person as they may appoint." [HAWKINS, J.-The sections state very exactly what has to be done. What does the surveyor of the board do for his salary, if not such duties as these? If you have at their request done certain things which they might properly have done at their own expense, but which do not come within the expenses payable by them under the section, you may have an action in respect thereof, but this can give you no right to a penal order under the 101st section.] The costs have been duly taxed, the appellants being represented at the taxation, and the justices have found that the employment of a solicitor was necessary and reasonable, and, ing the stopping up of a highway within the this being so, the expenses were expenses attendmeaning of the 84th section, and the convictions ought to stand.

HAWKINS, J.-I think that this appeal ought to be allowed. The order appealed from is an order for the payment of several sums of money alleged to be expenses incurred under the 84th and 85th sections of the Highway Act 1835 (5 & 6 Will. 4, c. 50), which deal with the stopping-up, diverting, and turning of highways. The 84th section provides that, when the inhabitants in vestry assembled shall deem it expedient that any highway should be stopped up, diverted, or turned, either entirely or preserving a bridleway or footway along the whole or any part or parts thereof, the chairman of such meeting shall, by an order in writing, direct the surveyor to apply to two justices to view the same, and shall authorise him to pay all the expenses attending such view, and the stopping up, diverting, or turning such highway, either entirely or subject to such reservation as aforesaid, out of the money received by him for the purposes of this Act; and then it goes on to say that, "if any other party shall be desirous of stopping up, diverting, or turning any highway as aforesaid, he shall, by a notice in writing, require the surveyor to give notice to the churchwardens to assemble the inhabitants in vestry, and to submit to them the wish of such person; and if such inhabitants shall agree to the proposal, the said surveyor shall apply to the justices as last aforesaid for the purposes aforesaid; and in such case the expenses aforesaid shall be paid to such surveyor by the said party, or be recoverable in the same manner as any for

Q.B. Div.]

feiture is recoverable under this Act," the effect of the section being that, if the matter originates with the vestry, a certain process is to be gone through, while if a private person is desirous of taking advantage of the section he brings it before the vestry, and, if they assent to it, the same process is gone through, the only difference being that the surveyor is to pay the expenses out of the money received by him for the purposes of the Act; while, in the case of a private individual, the " expenses aforesaid are to be paid to the surveyor by the party or be recoverable in the manner prescribed by the 101st section of the Act for cases of penalty or forfeiture. Then the 85th section provides that, when it shall appear upon such view of such two justices of the peace made at the request of the said surveyor as aforesaid that any public highway may be diverted and turned so as to make the same nearer or more commodious to the public, and the owner of the lands or grounds through which such new highway so proposed to be made shal consent thereto by writing under his hand, or if it shall appear upon such view that any public highway is unnecessary, the said justices shall direct the surveyor to affix a notice in the form or to the effect of schedule (No. 19) to the Act annexed, in legible characters, at the place and by the side of each end of the said highway from whence the same is proposed to be turned, diverted, or stopped up, and also to insert the same notice in a newspaper, and a number of other steps are to be taken before the highway is effectually diverted. Now, in the present case, there is no doubt that the appellants made application to the respondents, who, as the local board of health for Tottenham, are substituted by the 144th section of the Public Health Act 1875 for the old surveyor of highways and for the inhabitants in vestry assembled, and that the respondents assented to their proposal that the public ways in question should be diverted, and gave their assent thereto on condition that all the expenses incurred should be defrayed by the appellants. Then, after they had assented, proceedings appear to have been taken to carry out what was proposed, and to have been successful; and it is on these proceedings that the question we have to decide arises. The local board of health, having been requested by the appellants to take the necessary steps, instructed their solicitors to take them, and, having taken them, they presented a bill of costs in respect of taking them; and the question we have to decide really is whether this bill of costs comes within the meaning of the words, "the expenses attending such view, and the stopping up, diverting, or turning such highway," in the 84th section of the Act. I am of opinion that these solicitors' charges are not within the meaning of this section. I think that the expenses spoken of in the 84th section, and made recoverable by it under the 101st section, were intended by the Legislature to be the expenses of attending the justices on the view, and the expenses of the plan, and other similar expenses; and I do not think that it was the meaning of the Legislature that solicitors should be instructed to carry out the various steps prescribed by the sections dealing with the subject. I say nothing as to the point whether the present appellants would be liable in an action on contract; it may be that

[Q.B. DIV.

they would, and it may be that they would not, but I simply say that in my opinion these expenses are not such expenses as would rightly come under the 84th section of the Act. Then it is said that the Public Health Act 1875, which transfers the duties of the surveyors of highways to the urban authorities, alters the case. The 144th section of that Act provides that every urban authority shall, within their district, exclusively of any other person, execute the office and be surveyor of highways, and have, exercise, and be subject to all the powers, authorities, duties, and liabilities of surveyors of highways under the law for the time being in force, and that all ministerial acts required by any Act of Parliament to be done by or to the surveyor of highways may be done by or to the surveyor of the urban authority, or by or to "such other person as they may appoint." I think that the words "such other person as they may appoint" mean such other person of the same character as the surveyor of the authority, or of the same character as the other officials they are empowered by the Act to appoint. These are by the 189th section a medical officer of health, surveyor, inspector of nuisances, clerk, and treasurer, and also such assistants, collectors, and other officers and servants as may be necessary and proper for the efficient execution of the Act. I do not think that there is any ground here for the employment of an independent firm of solicitors, and certainly I am of opinion that, looking back again to the 84th section, these are not expenses within the meaning of that section. I think, therefore, while purposely abstaining from commenting on the items of these bills of costs before me, that these expenses are not such as were contemplated by the Legislature in enacting the sections under our consideration, and that therefore our judgment must be for the appellants.

SMITH, J.-The question left to us here by the justices is whether they were right in convicting the appellants, the United Land Company, and adjudging them to pay the three sums of 751. 68. 4d., 74ł. 168. 7d., and 74l. 68., claimed by the Tottenham Local Board under the circumstances set out in the case, the point really being whether these sums are expenses within the meaning of the 84th section of the Highway Act 1835, because, if they are not so, it is quite clear that the 101st section of the Act, which provides for the summary recovery of such expenses, cannot be brought into operation. In the first place I wish to say that I do not decide whether the Tottenham Local Board has got an action against the land company, because it does seem to me possible that an action might lie for money paid at the request of the land company-at any rate, that is a question which might reasonably be argued-but what I do say is, that these expenses are not expenses within the meaning of the 84th section of the Highway Act 1835. I agree with what Mr. Turner says, that where a man desires to stop a highway it would be very unwise for him to rely on the surveyor of taxes, or the sanitary authority, because I think it is very possible that there might be some flaw in the proceedings which would be fatal to him when the matter came before the court of quarter sessions; but that does not settle this It is perhaps necessary under such circumstances to employ a solicitor to see that the neces

case.