within the body of the county, and therefore within the jurisdiction of the Justices. On the part of the defendant, it was argued that it was only within the jurisdiction of the Justices when it was low water, but when the tide was full it then ceased to be so, and was then within the jurisdiction of the Admiralty. Upon this state of doubt, we dismissed the information for want of jurisdiction. Within three days after such hearing and determination by us, the prosecutor applied to us, in writing, to state and sign a case.

The question for the opinion of the Court is, whether our determination that we had no jurisdiction was or was not right in law. If the Court shall be of opinion that our determination was wrong, we request them to remit the matter to us, with their opinion thereon accordingly, or to make such other order in relation to this matter as to the Court shall seem meet.

Manisty (H. Lloyd with him), for the appellant. The Justices had jurisdiction to hear the information, and to convict the respondent. The question is, whether a person committing an offence within the meaning of section 34. of the 7 & 8 Geo. 4. c. 29. is exempt from liability to punishment by the Justices of the county, by reason of the offence having been committed between high and low water-mark. It is submitted that that part of the shore is in the county, and therefore within the jurisdiction of the Justices acting in and for that county. The matter was discussed in The Queen v. Musson (1), when it was said that although such portion of the sea-shore would not be taken to be in the adjoining parish unless there was some evidence to shew the fact, there was abundant authority for holding that it was within the county. That being so, it is clear that there is no foundation for the objection, that the Admiralty alone had jurisdiction.

[COCKBURN, C.J.-We must take it that the Duke of Northumberland had the exclusive right of fishing. But how can that be so in the open sea?]

Before Magna Charta the Crown might grant an exclusive right of fishing in the open sea; and it was so taken in Askew

(1) 8 E. & B. 900; s. c. 27 Law J. Rep. (N.s.) M.C. 100.

v. Thompson (2), a case tried on the Northern Circuit, and in which Hill, J. was counsel. Indeed, it has never been questioned that there may be an exclusive right of fishing for salmon in the open sea as far as low water-mark-Bagot v. Orr (3); and in 4 Inst. 134, it is objected, That whereas the conusance of all contracts and other things done upon the sea belongeth to the Admirall jurisdiction, the same are made triable at the common law, by supposing the same to have been done in Cheapside and such places. And it is answered, By the lawes of this realm, the Court of the Admirall hath no conusance, power or jurisdiction of any manner of contract, plea or querele within any county of the realm, either upon the land or the water. (He was then stopped.)

No counsel appeared for the respondent.

COCKBURN, C.J.-We must assume that the Justices were satisfied that the Duke had the exclusive right of fishing, and that the only question submitted to us is, whether their jurisdiction was taken away by reason of the offence being committed in that part of the sea which lay between high and low water-mark. It seems to be clear upon the authorities, as also upon the case of The Queen v. Musson, where it was distinctly held that such part of the sea was within the county, that the Justices had jurisdiction to entertain the matter, and that that jurisdiction ought to be exercised. HILL, J. and BLACKBURN, J. concurred. Judgment for the appellant.

any wherry, passenger boat, lighter, vessel, or other craft upon the River Thames, from or to any place or places within the limits of the act for hire or gain. The limits of the act are defined to be, from Teddington Lock to Lower Hope Point :-Held, that a person, not being a licensed freeman, or an apprentice to a freeman or the widow of a freeman, and who navigates a barge for hire within the limits of the act, is liable to the penalty, although such a barge has started upon its voyage from a place outside the limits, and might, under the 7 & 8 Geo. 4. c. lxxv., have been navigated as a "Western Barge" by such a person without incurring any penalty.

CASE stated by a Justice, under 20 & 21 Vict. c. 43, for the opinion of the Court of Queen's Bench.

On the 10th of February 1860, an information and complaint came on to be heard, before C. O. Dayman, Esq., one of the Magistrates of the police-courts of the metropolis, by which the respondent complained that, on the 3rd of February, upon the River Thames, between New Windsor and Yantlet Creek, in the county of Kent, to wit, at the parish of Putney, in the county of Surrey, the appellant, not being a freeman of the company of "The Master, Wardens and Commonalty of Watermen and Lightermen of the River Thames," or an apprentice to a freeman or to the widow of a freeman of the said company, did unlawfully act as a lighterman, working and navigatinga certain barge upon the said river there for hire, contrary to the statute, &c.

At the hearing the appellant and the respondent duly appeared, and the following facts were admitted :-That, at the day and time of committing the said alleged offence, the said appellant was acting as a lighterman, working and navigating for hire on the said River Thames, at Putney, within the limits prescribed by the act 22 & 23 Vict. c. cxxxiii., a certain barge carrying timber, which barge started from the town of Guildford, in the county of Surrey, to London Bridge, and was worked and navigated as aforesaid by the said appellant, from Guildford aforesaid, upon and through the said River Thames, and within the limits defined by such act, to Northfleet, in the county of Kent, below London Bridge.

That the said barge was, at the time of the committing of the said alleged offence, a flat-bottomed barge, and would have been deemed a "Western Barge" within the meaning of section 101. of the statute 7 & 8 Geo. 4. c. lxxv., if such act had not been previously repealed. Guildford aforesaid is beyond the town of Kingston, in the county of Surrey, and beyond the limits of the 22 & 23 Vict. c. cxxxiii., that is to say, beyond Teddington Lock, in the counties of Middlesex and Surrey. Putney Bridge aforesaid, where the alleged offence. was committed, is within the limits defined by the last-mentioned act.

Prior to the passing of the act, 22 & 23 Vict. c. cxxxiii., the Master, Wardens and Commonalty of Watermen and Lightermen of the River Thames were used and accustomed to grant a licence or permission to all persons who had duly served an apprenticeship, and been admitted as freemen of the said company, and also to the qualified apprentices of such freemen, to work and navigate barges on the River Thames for hire, but such licences were not granted to any other persons. The said appellant had, previously to the commencement of the act last mentioned, been in the habit of navigating western barges on the River Thames, within or through the limits of the said last-mentioned act, for several years, but never was a freeman of the said company, or an apprentice to a freeman or to the widow of a freeman of the said company.

By the 3rd section of the act, 7 & 8 Geo. 4. c. lxxv., the limits of the jurisdiction of the said company were defined to be from the town of New Windsor, in the county of Berks, to Yantlet Creek, in the county of Kent; and by the 104th section of the same act the owners of the lay-stalls, chalk hoys, and divers other persons therein particularly specified, although not freemen of the said company, were permitted to work and navigate lighters, hoys and other vessels or craft, in and upon the said river, without being subject to any of the penalties imposed by such act. That the act, 22 & 23 Vict. c. cxxxiii. came into operation on the 1st of January 1860, the object thereof being to make better regulations for the safe navigation and traffic in and upon the said river; and by the 7th

section of such last-mentioned act the whole of the act of the 7 & 8 Geo. 4. c. lxxv. was repealed, subject only to the reservation of such rights as are in the said section particularly specified; and the said act contains divers clauses whereby the limits of the jurisdiction of the said company are considerably altered and modified, and various privileges and exemptions conferred by the former act passed in the reign of Geo. 4. upon the freemen of the said company, the owners of western barges, laystalls, chalk hoys and other vessels and craft, were wholly abolished, and a new system of supervision and control over the traffic upon the said river was substituted in lieu of that which formerly prevailed. That when the alleged offence was committed the said act of the 22 & 23 Vict. c. cxxxiii. was in force.

It was contended, on behalf of the appellant, that he, the said appellant, was not liable to be convicted on the said information, as the barge he was working and navigating was a western barge as aforesaid; and as his barge, at the time of the said alleged offence, was being navigated as aforesaid from a place beyond the limits of the said act.

It was contended, on behalf of the said respondent, that the said appellant was liable to be convicted, as the previous exemption in favour of western barges was repealed by the said act, and that his said barge, at the time of the alleged offence, was being navigated by him as before, and within the limits of the said act. The 22 & 23 Vict. c. cxxxiii. and so much of the statute 7 & 8 Geo. 4. c. lxxv. as is relevant to the question at issue, are to be considered as part of this case.

The said C. O. Dayman, upon the said hearing, overruled the said objections so taken on behalf of the said appellant as aforesaid, and decided and adjudged that the said appellant was guilty of the said offence, upon the ground that the 22 & 23 Vict. c. cxxxiii. abolished the exemption in favour of western barges referred to in the 101st section of the statute 7 & 8 Geo. 4. c. lxxv. and also the exemption in favour of the lay-stalls and chalk hoys and other vessels referred to in the 104th section of the same act, notwithstanding the 7th section of the statute

22 & 23 Vict. c. cxxxiii.; and that the above act applied to a barge starting from a place beyond the limits of the act, as Guildford aforesaid, and having navigated from such place to a place within its limits, as at Putney aforesaid; and also upon the ground that the appellant had acted as a lighterman within the said limits, contrary to the provisions of the said act; and the said C. O. Dayman then adjudged the said appellant to pay for his said offence the sum of 6d., and 2s. for costs.

The question for the opinion of the Court was, whether the decision was correct. If the Court should be of opinion that it was, the conviction was to be affirmed; but if the Court should be of a contrary opinion, then the conviction was to be quashed.

-

Scotland, for the respondent. The important admission is, that the person navigating the barge was not a licensed freeman or a qualified apprentice, or a person who has obtained a licence. Under the provision in section 54. the appellant is liable to be convicted, for he has worked on board of and navigated the barge within the limits of the act. Those limits are defined by section 8, which enacts, that the act shall extend to all parts of the River Thames from and opposite to and including Teddington Lock to and opposite to and including Lower Hope Point, near Gravesend. Therefore, reading sections 8. and 54. together, it is clear that the case falls within the literal meaning of the act; and that view is strengthened by looking at the recital, that it is expedient that proper regulations should be made for the navigation of barges, &c., within the limits of the act, and for the regulation of the persons employed to navigate the same, and for the security of passengers, and for the orderly conduct of the traffic on the said river. In Reed v. Ingham (1) it was held, that a steam-tug was not a "wherry, lighter or other craft," within section 37. of 7 & 8 Geo. 4. c. lxxv., and that a person navigating her for the purpose of moving another vessel was not liable to the penalty imposed upon persons who were not freemen. Erle, J. said, "The question is, whether a penalty has been incurred by infringing upon the

(1) 3 E. & B. 889; s. c. 23 Law J. Rep. (N.S.) M.C. 156.

watermen's privilege. This privilege was given for the public good, on the presumption that the watermen will go through the proper means of qualifying for the duties which they will have to perform."

[COCKBURN, C.J.-We will not trouble you any further upon this point. It would be most absurd, looking at the object of this act, to say that because a vessel was being navigated from Hampton Court, and coming within the limits prescribed, the qualification for the persons navigating her was not just as necessary as if she had started from Teddington Lock.]

Hill,

Yes; and the case resembles Walker v. Evans (2), where the question was, whether a steam-tug was liable to penalties for not consuming her own smoke. J. said, "The fair meaning of the statute is, that if a vessel is plying to and fro over any portion of the river within the given limits, she incurs a penalty if she does not consume her own smoke." The next point is, that the case finds that this barge would come within the term a 66 western barge," as mentioned in the repealed act, 7 & 8 Geo. 4. c. lxxv. s. 101, which includes all flat-bottomed boats or barges navigated from the town of Kingston, or any place or places beyond that town; and it is said that the appellant is not liable to the penalty imposed by the 22 & 23 Vict. c. cxxiii. s. 54, because the 101st section of 7 & 8 Geo. 4. c. lxxv. enacts that nothing in that act contained, with certain exceptions, should extend to "western barges," and that by section 7. of the 22 & 23 Vict. c. cxxxiii. the exemption as to western barges is preserved. But it is clearly not so, for section 7. only provides, as far as this point is concerned, that the repeal of the former act shall not affect any appointment or licence duly made or granted under any enactment repealed. The enactment as to western barges is not a "licence" or an "appointment": which words apply to licences and appointments granted and made by the Watermen's Company under the powers of the former

act.

[HILL, J.-It appears about the height

(2) 29 Law J. Rep. (N.s.) M.C. 22.

of absurdity to say that the enactment that the repeal shall not affect any licence or appointment made under the old act should apply to the present case.]

(He was then stopped.)

Bovill (Prentice with him), for the appellant. The construction contended for would ruin many hundreds of persons, and it could not have been intended that an apprentice of two years' standing should be allowed to navigate a barge along the river, where men of long standing and experience were not allowed to do so. Reed v. Ingham has no application to the present case, for the language of the act is very different, but it shews how statutes of this kind are looked at. Lord Campbell, C.J. said, "The provisions of the section clearly interfere with the general right of the subject, and establish a monopoly, and impose a penalty. We are, therefore, to construe them strictly, like penal enactments."

[COCKBURN, C.J.-It really comes to this is the privilege extended to the western barges by the 7 & 8 Geo. 4. c. lxxv. an appointment or a licence? How can it be either one or the other? HILL, J.-If the legislature intended to preserve the privileges of the western barges, it is most extraordinary that they did not re-enact them, as they have done in saving many other rights. COCKBURN, C.J.-The 37th section of the 7 & 8 Geo. 4. c. lxxv. corresponds exactly with section 54. of the recent act, in which there is no enactment respecting western barges, as there was in the former one.]

If the Court is of that opinion, the point will not be further pressed. But, next, it is submitted that section 54. does not amount to an absolute prohibition against a man carrying on his occupation on board the lighter. Section 66. provides, that the owner of a barge which is navigated within the limits, without being in charge of a licensed lighterman or apprentice, shall be liable to a penalty, unless he proves to the satisfaction of the Magistrate that he was unable for the usual compensation to obtain the services of any such lighterman or apprentice. That being so, can it be said that in such a case an unlicensed person working a boat would be liable under section 54?

66

[COCKBURN, C.J.-It is not suggested in this case that a licensed man could not have been found, and section 66. does not in any way apply to the question of western barges." You put it as a case of hardship; but that suggestion would equally apply to the case of a barge starting from Lambeth within the limits. HILL, J.-Section 66. is like section 103. in the old act, and does not apply at all to the case of a person plying or working. for hire or gain; which is the offence created in section 54.]

Per Curiam.-The legislature may interfere if it thinks fit; but it is clear that we are bound to say that the conviction was right.

Conviction affirmed.

[IN THE COURT OF EXCHEQUER.] 1860. WILLETT, appellant, v. BOOTE June 26. AND ANOTHER, respondents. Master and Servant-4 Geo. 4. c. 34.Contract of Hiring-Breach of Contract under a supposed Right.

The respondents, potters, engaged the appellant to work for them, at specified work, in their manufactory, for a year, at daily wages. The same day the respondents engaged R. to work for them by piecework for the same period. The work which the appellant had to do was, in fact, included in the piece-work of R, and R. paid the appellant's wages out of the amount paid by the respondents to R. for the piece-work:Held, that the contract of master and servant subsisted between the respondents and appellant, notwithstanding the fact of the payment of his wages by the hands of R, and that, consequently, the appellant was liable to be convicted, under the 4 Geo. 4. c. 34, for neglecting his service with the respondents.

Although if a servant leaves his employment or refuses to perform his contract under a bona fide belief that he has a right to do so, he cannot be convicted under the statute, yet, to entitle the servant to a judgment on that ground, upon a case stated for the opinion of the Court, the facts must reasonably shew that the desertion or neglect complained of was in pursuance of that supposed

right, and it is not sufficient that it was merely possible that he acted under it.

Special case from Petty Sessions.

The appellant was summoned, for that he, having contracted and agreed with Thomas Latham Boote and Richard Boote, under a written agreement, to serve them in their said business of earthenware-manufacturers, as a biscuit-oven placer, from the 11th of November 1859 to the 11th of November 1860, did, on the 25th of February, and on subsequent days to the date of the complaint, unlawfully misdemean, misbehave and misconduct himself in his said masters' service, (to wit) that he did unlawfully neglect and absent himself from his said masters' service without having given to his said masters any notice thereof, without the leave of his said masters, and did neglect to perform part of his said work and to obey the lawful commands of his said masters, and without any sufficient reasons for so doing, contrary to the statute, &c.

The respondents were manufacturers of earthenware at Burslem, in Staffordshire. The appellant was a journeyman ovenman, and the following facts were proved on the hearing of the summons:

By an agreement dated the 15th of November 1859, the appellant agreed to serve the respondents as a biscuit-oven placer, from the 11th of November 1859 to the 11th of November 1860, at 4s. a day. The agreement was in this form:

"This agreement, made this 15th day of November 1859, between Thomas Latham Boote and Richard Boote, co-partners, of Burslem, in the county of Stafford, potters, hereinafter called 'the said potters,' of the one part, and the several other persons whose names are mentioned in the first schedule hereto affixed, who are hereinafter described as 'the said workmen,' of the other part; whereby the said workmen (each of them agreeing for himself only, separately from the others of them, so as to constitute a separate contract) do hereby, in consideration of the wages or prices hereinafter mentioned or referred to, contract and agree to serve the said potters as potters, that is to say, in that branch of a potter's business mentioned opposite to their respective names in the first schedule hereto, at Burslem, in the said county,