Q.B. Div.]

that is to say: (1) Where any matter or ingredient not injurious to health has been added to the food or drug because the same is required for the production or preparation thereof as an article of commerce, in a state fit for carriage or consumption and not fraudulently to increase the bulk, weight, or measure of the food or drug, or conceal the inferior quality thereof. (2) Where the food or drug is a proprietary medicine or is the subject of a patent in force and is supplied in the state required by the specification of the patent. (3) Where the food or drug is compounded as in this Act mentioned." That section deals with certain offences, and the defendant may show he did not know, and could not by diligence have known, of the adulteration. Then comes sect. 3 of the Amendment Act of 1879 under which these proceedings are taken. It is as follows: "Any medical officer of health, inspector of nuisances, or inspector of weights and measures or any inspector of a market or any police constable, under the direction and at the cost of the local authority appointing such officer, inspector, or constable, or charged with the execution of this Act, may procure at the place of delivery any sample of milk in course of delivery to the purchaser or consignee in pursuance of any contract for the sale to such purchaser or consignee of such milk, and such officer, inspector, or constable, if he suspect the same to have been sold contrary to any provisions of the principal Act, shall submit the same to be analysed, and the same shall be analysed and proceedings shall be taken and penalties on conviction be enforced in like manner in all respects as if such officer, inspector, or constable had purchased the same from the seller or consignor under sect. 13 of the principal Act." The sole remaining question is this: Take it that the respondent was entirely innocent morally of the adulteration to which he was no party and could not protect himself, is he to be held answerable for it? I think he has brought himself within the Act, taking into consideration the object and scope of the Act of Parliament. An innocent vendor is liable for the unauthorised act of his servant beyond the scope of his employment, and even when the act is done in express disobedience to his orders. I think, therefore, looking to the object of the Act and the absence of any provision or any reference to scienter he has brought himself within it. If he were to be relieved of responsibility a wide door would be open to evade the beneficial provisions of the Legislature. It was decided in Brown v. Foot (66 L. T. Rep. 649) that an innocent vendor of milk is undoubtedly liable for the unauthorised act of his servant in

adulterating it. It is apparent that there is really no material difference between that case and the present one because the vendor is no more able to prevent adulteration by a dishonest servant than he is to prevent adulteration by strangers such as the servants of the railway company. I am therefore of opinion that the respondent has committed an offence against the Acts. I have only to say that assuming the magistrate was right in holding that the respondent has acted innocently, it was obviously a case in which the fine ought to be a nominal one, but we cannot be deterred by the hardship of the case from giving full effect to the intention of the Legislature.

[Q.B. DIV.

WILLS, J.-I am of the same opinion. I was myself a party to the decision in Brown v. Foot (ubi sup.), and I believe that decision to be still good law. The legislation is drastic, and it is

meant to be so. There is it seems to me no material difference between the case of adulteration by a servant without the authority and against the express orders of his master and adulteration by the fraudulent acts of a stranger. The offence is created quite independently of the moral character of the act. There is no doubt in my mind that the place of delivery was Paddington, and that the railway company was acting as the agent of the respondent in carrying the milk to London. That disposes really of the important question in the case. I agree with the concluding remarks of the Lord Chief Justice as to the penalty, and I may add there is also the further provision of sect. 16 of the Summary Jurisdiction Act 1879, by which the magistrate has power to dismiss the charge without inflicting a punishment if he considers the offence in the particular case to be of so trifling a nature that it is inexpedient to inflict any penalty. There is ample power therefore to modify the penalty to avoid any hardship. Appeal allowed.

Solicitor for the appellant, John H. Hortin.

Thursday, Oct. 27, 1898.

(Before Lord RUSSELL, C.J. and WILLS, J.) PHILLIPS (app.) v. STEPHENS (resp.). (a) Revenue-Carriage licence-First offence-Second offence-7 & 8 Geo. 4, c. 53, s. 78-42 & 43 Vict. c. 49, s. 4-32 & 33 Vict. c. 14, s. 27.

Sect. 4 of the Summary Jurisdiction Act 1879 (42 & 43 Vict. c. 49) as far as reduction of fines is concerned applies only to first offences. Fines for second and subsequent offences are regulated by 7 & 8 Geo. 4, c. 53, s. 78, under which such fines cannot be reduced below one fourth of their full amount as imposed by statute.

To constitute a second offence under 32 & 33 Vict. c. 14, s. 27 it is not necessary to be convicted twice in the same year of keeping a carriage without having a licence for that year. A conviction in one year of keeping a carriage without a licence for that year following a conviction in a previous year for keeping a carriage without a licence for that year is a second conviction for the same offence.

APPEAL by case stated from justices of the city of Hereford sitting in petty sessions as a court of summary jurisdiction.

On the 2nd May 1898 an information was preferred by James William Phillips (hereinafter called the appellant) against John Hall Stephens (hereinafter called the respondent) under sect. 27 of 32 & 33 Vict. c. 14, charging that the respondent, on the 11th Feb., did keep a carriage for the keeping of which a proper licence was required by the statute, without having a proper licence, contrary to the said statute, whereby the respondent had for such offence forfeited the sum of 201.

The justices convicted the respondent, and fined him 20s. and 7s. 6d. costs.

At the hearing it was found as a fact that the (4) Reported by J. ANDREW STRAHAN, Esq., Barrister-at-Law.

respondent, on the 11th Feb. 1898, at East-street in the parish of St. Peter, in the city of Hereford, was keeping a carriage for which a licence was required but had not been then taken out. It was further proved that he took out a licence for a similar carriage during the year 1897, but whether for the same carriage it did not appear, and that he took out a licence for a carriage on the 9th March 1898, which was after the date of the offence mentioned in the information.

It was also proved that at a court of summary jurisdiction for the city of Hereford held at the Guildhall in the said city on the 3rd Jan. 1895, the respondent was convicted of keeping a carriage on the 29th Oct. 1894 without having a proper licence for the same, and was adjudged to pay a fine of 11.

It was contended on the part of the appellant that on proof of the previous conviction on the 3rd Feb. 1895 the justices were not justified in convicting the respondent in a less penalty than 5l., being one-fourth of the full penalty of 201., inasmuch as the fine of 17. was not imposed as in respect of a first offence, as prescribed by sect. 4 of the Summary Jurisdiction Act 1879 (42 & 43 Vict. c. 49).

It was contended on the part of the respondent that the conviction of the 3rd Feb. 1895 was not in respect of the same offence as that charged in the present information, inasmuch as the charge contained in such information was for not taking out a licence for keeping a carriage, and paying the duty thereon for the year commencing the 1st Jan. 1898, for which there was not any second or subsequent offence committed during the year, and that the present conviction should stand.

The question of law for the opinion of the court was whether, under the circumstances, the fine of 11. and costs on the conviction on the 2nd May 1898 was as in respect of a first offence, or whether the sum of 51. was the smallest fine which could then be inflicted.

Danckwerts for the appellant.-Sect. 4 of the Summary Jurisdiction Act 1879, as far as the justices' discretion to reduce the fine is concerned, applies to first offences only. It has no application in that respect to fines for second offences. These, when they are offences against the excise, are dealt with under sect. 78 of 7 & 8 Geo. 4, c. 53. Under that Act the discretion of the justices is limited to a reduction of the fine to not less than a fourth of the full amount. The justices here, however, have held that the offence proved is a first offence, though the respondent was convicted of precisely the same offence in 1895. Their point seems to be this: The carriage licence is issued for a calendar year, that is, from the 1st Jan. to the 31st Dec. The offence the respondent was convicted of in 1895 was, as they hold, not taking out a licence for that year. The offence he is now convicted of is for not taking out a similar licence for 1898. They say that this is not therefore the same offence as before that to constitute a second offence the second conviction must be in the same year. I submit that this view is altogether mistaken, that a second offence here is a second failure to have the proper licence. The offence each time is the same-being without a licence when the statute requires you to have one.

The respondent did not appear.

[Q.B. DIV.

Lord RUSSELL, C.J.-The Summary Jurisdiction Act 1879 says that if the offence is a first offence the justices may reduce the fine indefinitely. Another statute says that, even if it is not a first offence, they may reduce the fine to a fourth, but they cannot reduce it below a fourth. The facts are that, in 1895 the respondent was found guilty and fined 11., and in 1898, the occasion in question, he was charged with a repetition of that offence, and the magistrates arrived at the conclusion, upon what grounds I cannot follow, that it was a first offence. They were wrong in that. I think the case must be remitted back to them with this intimation-that they may impose any fine they think right, but it must not be less than the fourth of the penalty fixed by the statute. Case remitted. Solicitor for the appellant, Solicitor to the Treasury.

Saturday, Oct. 29, 1898.

(Before WILLS and CHANNELL, JJ.) MORRIS (app.) v. DUNCAN (resp.). (a) Summary jurisdiction-Limitation of time for bringing actions-Information on hearingSummary Jurisdiction Act 1848 (11 & 12 Vict. c. 43), s. 11-Salmon Fishery Act 1873 (36 & 37 Vict. c. 71), s. 62.

By sect. 62 of the Salmon Fishery Act 1873 (36 & 37 Vict. 71): "All penalties imposed by the Salmon Fishery Acts, 1861 to 1873, or by any bye-law made in pursuance of this Act, and all sums of money, costs, and expenses by the said Acts or either of them directed to be recovered in a summary manner, may be recovered within six months after the commission of the offence before two justices in manner directed by 11 & 12 Vict. c. 43."

And by sect. 11 of the Summary Jurisdiction Act 1848 (11 & 12 Vict. c. 43), "In all cases where no time is already or shall be specially limited for making any such complaint or laying any such information in the Act or Acts of Parlia ment relating to each particular case, such complaint shall be made and such information shall be laid within six calendar months from the time when the matter of such complaint or information respectively arose."

The respondent was charged upon two informations preferred by the appellants (1) that on the 9th Nov. 1897, he unlawfully had in his possession an unseasonable salmon; and (2) that on the 8th Nov. 1897, he did consign one package not conspicuously marked with the word "salmon" when such contained salmon.

The two offences were proved, and it was further proved that the two summonses were issued on the 29th April 1898, and were served upon the respondent on the 3rd May 1898. They were heard upon the 11th May 1898.

The justices refused to convict on the ground that, on the day of hearing six months had expired since the offence was committed.

Held, that the justices should have convicted as there was nothing in sect. 62 of the Salmon Fishery Act 1873 specially limiting the time, and

(a) Reported by W. DE B. HERBERT, Esq., Barrister-at-Law.

that, therefore, sect. 11 of the Summary Jurisdiction Act 1848 applied.

THIS was a case stated by two of Her Majesty's justices of the peace in and for the county of Durham, under the statutes 20 & 21 Vict. c. 43 and 42 & 43 Vict. c. 49, for the opinion of the Queen's Bench Division.

On the 29th April 1898 two separate informations were preferred by the appellant, an officer of the Fishmongers Company, London, against the respondent, of 34, Rose-street, Aberdeen, as follows: "First, that between the 3rd Sept. 1897 and the 1st Feb. 1898 both inclusive, to wit, on the 9th Nov. 1897, he (the respondent) unlawfully had in his possession one unseasonable salmon, which salmon was found in Chester-le-Street, in the county of Durham, contrary to the statute in such case made and provided (24 & 25 Vict. c. 109, s. 14 (2); and secondly, that, between the 3rd Sept. 1897 and the 1st Feb. 1898 both inclusive, to wit, on the 8th Nov. 1897, he (the respondent) did consign and send from Aberdeen to Dr. Duncan, Chester-le-Street station by Newcastle, by common carrier to wit, the North British Railway Company one package containing salmon. the package not being conspicuously marked by painting or branding the word "salmon on the outside thereof; and that the package was found at Chester-le-Street, in the county of Durham, on the 29th Nov. 1897, contrary to the statute in such cases made and provided (55 & 56 Vict. c. 50, s. 3), and upon the hearing thereof on the 11th May 1898 we dismissed both the informations.

Upon the hearing of the informations before them-being and forming the court of summary jurisdiction at a petty sessions holden at the justice room, Chester-le-Street, in and for the middle division of Chester Ward, in the county of Durham, on the 11th May 1898-certain facts were proved or admitted before them which, in their opinion, constituted the two offences charged; and it was further proved or admitted that the two summonses were issued on the 29th April 1898, and were served on the respondent on the 3rd May 1898.

The respondent's solicitor took the objection that, notwithstanding both informations had been laid by the appellant within six months of the date of the offences, they could not convict, inasmuch as it is provided by sect. 62 of the Salmon Fishery Act 1873 (36 & 37 Vict. c. 71) that 66 All penalties imposed by the Salmon Fishery Acts 1861 to 1873, or by any bye-law made in pursuance of this Act, and all sums of money, costs, and expenses by the Acts or either of them directed to be recovered in a summary manner, may be 'recovered' within six months after the commission of the offence before two justices in manner directed by the Summary Jurisdiction Act 1848 (11 & 12 Vict. c. 42), or of any Act amending the same "; and in support of his objection he quoted the case Reg. v. Mainwaring (27 L. J. 278, M. C.).

The appellant's solicitor contended that it was sufficient that the informations had been laid and the two summonses issued and served within the six months and that it was not necessary for the conviction to take place within the time limited by

the above section.

The justices were of opinion that the contention of the respondent's solicitor was correct and that

[Q.B. DIV.

they had no power to convict the respondent, as more than six months had elapsed since the date of the offences, and on that ground and having regard to the views expressed in the judgment in Reg. v Mainwaring before referred to, they dismissed both informations.

The question for the opinion of the court is whether, under the circumstances above stated, they were right in dismissing either or both the informations.

Lawson Walton, Q.C. (Travers Humphreys with him) for the appellant.-The point which was taken by the respondent in the court below was that the magistrates could not convict, although the information was laid within six months, because the conviction would be without the time limited in sect. 62 of the Salmon Fishery Act 1873. That section says that: "All penalties and all sums of money, costs, and expenses directed to be recovered in a summary manner, may be recovered within six months after the commission of the offence before two justices in manner directed by an Act passed in the eleventh and twelfth years of the reign of Her present Majesty Queen Victoria, chapter forty-three." The meaning of the word "recovered may be doubtful, but what I submit it really means is that you must proceed to get the penalty within the six months, not that you are actually to get the penalty in your hand within that time. The section of 11 & 12 Vict. c. 43 (Jervis's Act), says that: "In all cases where no time is already or shall hereafter be specially limited for making any such complaint or laying any such information in the Act or Acts of Parlia ment relating to each particular case, such complaint shall be made and such information shall be laid within six calendar months from the time when the matter of such complaint or information respectively arose." The word "recovered" in the Act of 1873 does not "specially limit" the time within the meaning of Jervis's Act, and therefore the time laid down in sect. 1 of that Act applies in this case and the information was therefore in good time. "Recovery' means "proceedings for recovery. A point of the same description arose under the Coal Mines Inspection Amendment Act (18 & 19 Vict. c. 108), and, although that case was not decided upon those grounds, the judges expressed their opinions on the subject. It is the case of Reg. v. Mainwaring (27 L. J. 278 M. C.; E. B. & E. 474), and although on this point the court was divided, Coleridge, J. and Erle, J. gave dicta which are in my favour. The former said: "The word 'recovered' is a complex term, and seems to allude to the many steps which must be taken, and I should be inclined to say that if the informer or complainant took any one of the steps required, and thereby commenced the proceedings within the time limited he would have performed the. condition required." Erle, J. said: "The power is incidental to all tribunals of adjourning from time to time, if justice or necessity requires it; and may not a judgment pronounced after an adjournment by reasonable iutendment of the law be taken to relate back to the time when the These dicta are proceedings commenced ? " strongly in my favour, and I submit that, in the present case the justices were wrong. The respondent did not appear.

Q.B. Div.]

WILLS, J.-I regret that this case should have to be decided without the benefit of the argument on behalf of the respondent; but still the question, although an important one, is within a very narrow compass, and the observations which could have been made on the other side are, I think, sufficiently obvious to make it easy to apprehend what they would have been so that we could possibly deal with them. I certainly do not agree with the argument of Mr. Lawson Walton that 66 recovery taken by itself is an ambiguous term. I think "recovery" as applied to a sum of money or a penalty or a debt, or anything of that kind, is perfectly definitely understood to mean the getting the judgment of the court upon which it becomes payable. But then if that is so we have to apply the section of Jervis's Act to that state of things, and if that be so, the special limitation, that is to say the definite limitation, is to the period of recovery, and not to the period of commencement of the proceedings. Supposing Jervis's Act were out of the question it might possibly be that the summons might be issued and might be heard upon the last day of the six months, whereas it is also possible that in order to get a recovery within the period of six months you might have to commence your proceedings a week or ten days or a fortnight before the end of the six months according to the practice of the particular petty sessions before which the matter in controversy might come. That seems to show that the period of limitation for recovery that is given in the Act-I will not say the implied period of limitation which, it is argued on the other side, is to be gathered from the expression recovery within six months-is not a definite one, and is not I think what Jervis's Act meant by a period specially limited. I think what Jervis's Act meant in sect. 11 was that except there is an Act of Parliament passed either past or future, which definitely says that the time for making the complaint must be within six months, then in all other cases, that is to say no other kind of language should prevailnothing, which does not say specially that the proceedings shall be commenced within the six months, shall operate to alter the general law as fixed by Jervis's Act. That is obviously the meaning, and there is no possible injustice in such a construction, which appears to me to be entirely consistent with the language of the section, and by so construing we should be doing no violence to its language or straining the expres sion. It seems to me that such a construction is really necessary to give full and proper effect to sect. 11 of Jervis's Act, and one cannot be blind or indifferent to the consideration that the very object of Jervis's Act was to secure uniformity of procedure in all matters in which departure from uniformity was not essential and was not specially provided for by the particular Act of Parliament. I think therefore this appeal ought to be allowed and the case remitted to the magistrates to be heard upon the merits.

CHANNELL, J.-I am of the same opinion. I do not think there is any indication in sect. 62 of this Act, 36 & 37 Vict., to impose a different limit of time to that which is imposed by Jervis's Act. The main object of the section was no doubt to authorise the proceedings being taken before two justices. Sect. 62 is a repetition of the first part

[Q.B. Div.

of sect. 35 in the Act of 1861, and provided the tribunal before whom the penalties should be recovered. Sect. 35 of the Act of 1861 was repealed and sect. 62 substituted for it, not to provide as was done in the last part of it for a different application to a penalty, but the first word of the sections are identical in each case; therefore no doubt the section was mainly wanted for the purpose of providing the tribunal. I think it means that the penalty may be recovered before two justices in the manner which is provided for by Jervis's Act; that is to say within six months after the commission of the offence, and consequently the six months would run from the same period as it does in Jervis's Act.

Appeal allowed. Solicitor for the appellant, C. O. Humphreys.

Monday, Oct. 31, 1898.

(Before Lord RUSSELL, C.J. and WILLS, J.) CROSSE (app.) v. WANDSWORTH BOARD OF WORKS (resps.) (a).

Local government-Street-Permanent paving of part by local authority-" New street"-Metropolis Management Act 1855 (18 & 19 Vict. c. 120), ss. 98 and 105-Metropolis Management Amend ment Act 1862 (25 & 26 Vict. c. 102), s. 112. The fact that the local authority have, under sect. 98 of the Metropolis Management Act 1855 perma nently paved and channelled the footway before a number of houses fronting a country road will not estop them afterwards when that country road has, by having houses built continuously, and nearly continuously on both sides of it, become a new street, from exercising the powers given by sect. 105 of that Act by directing the footways on both sides to be permanently pared and channelled, and apportioning the estimated cost among the frontagers, including among these the owners of the houses before which the footpath was previously paved and channelled under sect. 98.

"New street" within sect. 112 of the Metropolis Management Amendment Act 1862 explained. APPEAL from the decision of C. K. Francis, Esq., a metropolitan magistrate sitting at the SouthWestern Police-court, directing the appellant (Crosse) to pay the sum of 31. 48. 11d., being the sum apportioned by the respondents as payable by the appellant to the respondents (the district board of works), as owner of a house, No. 24, Florian-road, abutting on the point of the thoroughfare called Putney Bridge-road, between Merivale-road and the boundary of the parish of Putney, which was alleged to have become a new street within sect. 105 of the Metropolis Management Act 1855 and the Acts amending the

same.

The facts proved or admitted at the hearing before the learned magistrate were as follows:

The appellant's house abutted on the Putney. Bridge-road, and it was built in or about the year 1893.

Putney Bridge-road, formerly known as Wandsworth-lane, was an old highway, and at the passing of the Metropolis Management Act 1855 there

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

Q.B. Div.]

were a few houses on the southern and none on the northern side of that part of it between the boundary of the parish of Putney and Merivaleroad.

Subsequently and at different periods other houses were built on the said part of Putney Bridge-road.

The footpaths on that part of the Putney Bridge-road extending westward from Merivaleroad to Putney High-street on both sides had been permanently paved and kerbed by the respondents as to part thereof about 1895, and as to other portions in periods varying from six to sixteen years before then, and the whole of Putney Bridge-road lying between Merivale-road and Putney High-street had from time to time been repaired by the respondents. The footpath on the north side of Putney Bridge-road, between Merivale-road and Florian-road, was kerbed and regravelled a year ago at the expense of the ratepayers. The learned magistrate found as a fact that such kerbing and regravelling was merely temporary repair. The remainder of the footpath on the north side of the parish boundary had always been and still was only gravelled.

In 1883 the footpath on the south side of the said Putney Bridge-road, opposite Merivale-road to the corner of the Oxford-road, that is to say, in front of six houses (which were then built) in Oxford-terrace was permanently paved, gravelled, and kerbed by the respondents at a cost of about 451., which was paid by the respondents. This was done in pursuance of a resolution of the respondents, in these words:

That the footpath on the south side of Putney Bridge-road, between Oxford-road and Atney-road, be kerbed with 12 by 8 granite and tar paved at an estimated cost of 641.

As the work last referred to was charged by the respondents upon the general rates, the learned magistrate found that the respondents in passing the said resolution, and causing the work to be done, were acting under the general powers conferred upon them by sect. 98 of the Metropolis Management Act 1855, and

not under sect. 105 of that Act and sect. 112 of the Metropolis Management Amendment Act 1862, since had it been carried out under the latter sections the cost must have been apportioned among the frontagers. No direct evidence on the point was, however, submitted to him.

On the 9th June 1897 the respondents, at a meeting of the board, passed the following resolution :

Resolved that, whereas a certain new street situate and being that part of the street called Putney Bridgeroad which lies between the parish boundary and Merivale-road, in the parish of Putney, is not paved to the satisfaction of the board, and this board deem it necessary and expedient that the same should be so paved throughout the whole breadth of so much of the footpath on the northern side thereof as lies between the parish boundary and the south-west corner of Merivale-road and of so much of the footpath on the southern side as lies between the parish boundary and the north-east corner of Oxford-road (including, at the points of intersection, the streets) it is hereby ordered that the said new street be well and sufficiently paved as aforesaid pursuant to the provisions of the Metropolis Management Act 1855 and the several Acts amending the same, and that the surveyor be instructed to determine the amount of the estimated expenses of providing and laying such pavement.

[Q.B. DIV.

At a meeting of the respondent board of works, held on the 4th Aug. 1897, a report of the surveyor was read, in which he estimated and determined the cost of paving the footpaths mentioned in the last resolution at 6181.

The apportionment was made, and the sum apportioned on, and demanded from, and refused by, the appellant was 31. 4s. 11d. as aforesaid.

The order of apportionment was produced and admitted.

At the hearing before the learned magistrate it was contended that, whether Putney Bridge-road was or was not a new street, the respondents could not now exercise their powers under sect. 105 of the Act of 1855 and sect. 77 of the Act of 1862, inasmuch as the footpaths had been permanently paved by the respondents at different periods, or, at any rate, that the part of the road in which the six houses in Oxford-terrace are situate, and which it was contended was included in the said apportionment, was paved to the satisfaction of the respondents, and that the respondents, having laid out various sums of money in making permanent and substantial footpaths before the last resolution, were now estopped from exercising their powers of paving the streets at the expense of the adjoining owners.

For the respondents it was contended that the part of Putney Bridge-road mentioned in the said resolution was a new street; that the sums expended were not for permanent work under sect. 105, but were for temporary accommodation; and that, as regarded that part of the alleged new street opposite the six houses in Oxford-terrace, the respondents were entitled at any time to pave the footpath on the other side of the road, and charge the costs on the owners on both sides of the road.

The magistrate found that in 1883 so much of Putney Bridge-road as was referred to in the order of apportionment was a country road, and was not a street in the ordinary sense and meaning of the word, there being no building on one side of the road and very few on the other side. Afterwards, at various periods, houses were erected on both sides of the road, and the magistrate found as a fact that when the resolution of the 9th June 1897 was passed, it had developed into a street in the ordinary sense, and that it had then become a new street within the meaning of the Act; and he gave judgment for the respondents accordingly.

The point of law for the court to decide was whether the respondents, by having permanently constructed the footpath in front of the houses in Oxford-terrace, under sect. 98 of the Act of 1855 were precluded from exercising their powers under sect. 105 of that Act and sect. 77 of the amending Act.

Metropolis Management Act 1855 (18 & 19 Vict. c. 120):

Sect. 98. It shall be lawful for every vestry and district board from time to time to cause all or any of the streets within their parish or district or any part thereof respectively, to be paved or repaired when and as often and in such manner and with such materials as such vestry or board think fit, and to cause the ground or soil thereof to be raised or lowered, and the course of the channels running in, into, or through the same to be turned or altered in such manner as they think proper, and to alter the position of any mains or pipes in or under such street, such alteration to be made subject to