Q.B. Div.]

that the words in the original, "frank tenement," being in the singular number, could not be read as covering two separate tenements.

Lord COLERIDGE, C.J.-I am of opinion that the decision of the revising barrister was wrong. The question is whether it makes any difference that the qualification in respect of which the appellant claimed to vote as a county voter arose fron. two separate tenements, instead of from one single tenement. I place my opinion upon the statute 8 Hen. 6. It enacts that the knights of the shire shall be chosen by people, "whereof every one of them shall have free tenement to the value of 408. by the year." This is explained by the next clause, by saying that the knight who is voted for by the greatest number of those "who may expend 408. by the year and above as aforesaid," is to be deemed elected. Thus making it clear that all that is requisite is that the electors should have the value mentioned in freehold.

GROVE, J—I am of the same opinion. There is nothing in the statute to render it necessary that the whole qualification should be from one single holding, and there is certainly nothing in reason to render it so.

ARCHIBALD, J.-I am of the same opinion.

Solicitors for the appellant, Ridsdale, Craddock, and Ridsdale.

Solicitors for the respondent, Robinson and Preston.

QUEEN'S BENCH DIVISION. Reported by M. W. MCKELLAR and J. M. LELY, Esqrs., Barristers-at-Law.

Tuesday, Nov. 9, 1875.

M'HOLE v. DAVIES.

Market Act, contravention of-Sale otherwise than in vendor's dwelling place or shop-Swansea Corporation Act, 1863, s. 38-Market and Fairs Clauses Act, 1847, s. 13.

By sect. 38 of the Swansea Corporation Act, 1863, every person exposing for sale in any place within the Borough, except in his own dwelling place or shop," any articles in respect of which tolls are by the Act authorised to be taken in the market is liable to a penalty.

M. exposed for sale 200 sheep in an open yard, separated from his house by a small covered space, and extending about 160ft. from the street doors. The communication between the house and the yards was by stairs leading down into the covered space, the ceiling of which was partly formed by the floor of the house.

Held, upon a case stated under 20 & 21 Vict. c. 43, that M. was rightly convicted of a contravention of the Swansea Corporation Act.

THIS was a case stated for the opinion of the Court of Queen's Bench, under 20 & 21 Vict. c. 43, by the stipendiary magistrate for the Borough of Swansea.

1. (a) The information was laid by Mr. Evan Davies, who is the manager of the Cattle Market, and is in the employ of Mr. James Perry, the lessee and farmer of the tolls thereof under the

(a) The case as stated by the stipendiar y magistrate was not divided into paragraphs. Upon observing this, the court was about to decline to hear the case, but, as it appeared that the appellant was not in fault, consented to do so.

[Q.B. DIV. Corporation of Swansea, and he is also one of the sureties of the said James Perry in a bond given by him to the Corporation as security for the due payment of rent and performance of the stipulations in the lease. The information was laid by the authority of the said lessee and farmer of tolls.

2. It was contended on the part of the appellant, as a preliminary objection, that it was not competen for the said Evan Davies to lay such information, on the ground that he is not an officer appointed by the corporation, or authorised by them in writing to do so. The statute under which the information was laid contains no enactment as to the mode of procedure in such cases, but it is incorporated with the Markets and Fairs Clauses Act, 1847, except sections 12, 13, 19, and 50; also the Lands Clauses Consolidation Act 1845, and the Lands Clauses Consolidation Act Amendment Act 1860. Again, the 32nd section of the Markets and Fairs Clauses Act incorporates with it the Railway Clauses Consolidation Act 1845, as to the recovery of penalties, and provides for the recovery thereof in the same manner as the Lands Clauses Consolidation Act above referred to, that is to say, under sect. 45. Every penalty or forfeiture may be recovered by summary proceeding before two justices, and on complaint made to any justice, he shall issue a summons requiring the party complained against to appear.

3. Having regard to these enactments and to the evidence, the magistrate overruled the above objection on the grounds that it was not necessary that the information should be laid by a party aggrieved; secondly, that if it were necessary, the said Evan Davies had a sufficient, though not a direct, interest in the market tolls, by reason of the said bond and suretyship to constitute him a party aggrieved by the alleged act of defendant; and thirdly, that the appearance of the defendant cured any defect in the summons and information. 4. The summons was as follows, omitting formal portions:

For that you, the said William M'Hole, on the 13th day of April instant, at the town of Swansea, did then and there unlawfully expose for sale 200 sheep in a certain place other than out of the Swansea Market there situate, that is to say, in a shed situate in Back-street, in the town of Swansea aforesaid, the said place not being a dwelling-house or shop in your occupation, against the form of the statute in such case made and provided.

5. The information and summons were founded on the 38th section of The Swansea Municipal Corporation Act 1863, which is as follows:

After the passing of this Act every person other than a licensed hawker, who shall sell, or expose for sale, in any place within the borough, except in his own dwelling place or shop, any articles in respect of which tolls are by this Act authorised to be taken in the market, shall for every such offence be liable to a penalty not exceeding 40s. Provided always that nothing in this Act contained shall subject any person to a penalty for exposing for sale any horse, mare, or gelding, at any stable within the borough, or for exhibiting any horse, mare, or gelding within a distance of 200 yards from any stable at which the same may be exposed for sale as aforesaid. (a)

6. It was admitted that the defendant resides in Back-street in the said borough, and that he occupies a large yard adjoining his residence, in which there are sheds and other places for sale of

(a) The Market and Fairs Clauses Act 1847, sect. 13, is mutatis mutandis, and with the exception of the proviso, identical with this section.

cattle and sheep, and that on the day named in the summons he did expose for sale 200 sheep.

7. The entrance to the yard and sheds is from Back-street, through double wooden doors. After passing through the doors a person first enters a place about 30ft. by 20ft., covered in by beams and Hooring. The defendant resides in a small house, supported by pillars on either side of this place, the floor of his house forming the ceiling of this underspace. The yard then extends further without a ceiling to the length altogether of about 158ft. from the street doors, and this part is filled with sheds for the accommodation of a considerable number of cattle and sheep. There is no communication between the dwelling house above and the sheds in the yard by covered way or through the house. In order to enter the yard and shed, the defendant descends stairs from his dwelling house above into the said covered spaces, and thence passes into the open yard and sheds.

Upon the facts admitted, and after a personal view, the magistrate convicted the defendant, and fined him ls., together with 17. 9s. 6d. for costs. The opinion of the court was requested as to whether the conviction was correct or wrong. Forbes for the appellant, cited

Fearon v. Mitchell, 41 L. J. 170 M. C.

No counsel appeared for the respondent.

COCKBURN, C.J.-This is rather a doubtful case, and there is much in the contention that the yard was part and parcel of the appellant's house. But, looking to the purpose of the Act, there can be no doubt that that purpose was to prevent persons from selling elsewhere than in the legitimate market-to prevent, in fact, the setting up of a rival market. Now, although in one sense this yard might be said to be part of the house, it could not be said to be so with reference to the true construction of the Act. The exceptions allowed by the section were meant to take in small and occasional sales; as, for instance, if a man should sell one horse or one calf in his own yard. The sales by the appellant were not of this character, and we should be neutralising the Act by allowing a rival market to be set up, if we did not affirm the conviction.

MELLOR, J.-I also think that the stipendiary magistrate was right. If we allowed the exception to extend in the manner claimed, the very object of the Market Act would be frustrated. Perhaps in a conveyance of the house the yard might pass, but a different construction is obviously the correct one as regards this particular

[Q.B. DIV.

The appellants were the owners of about 30,000 square yards and of school buildings thereupon, the access to which was by a narrow passage about 70ft. long, leading out of Cottenham-road. Along the whole of the frontage of the appellants' land were houses, of which the appellants owned one only, abutting on the road.

The appellants having refused to pay towards the paving expenses,

Held, upon a case stated by justices under 20 & 21 Vict. c. 43, that access to the new street was the essence of liability, that the school buildings of the appellants "formed the street" for all practical purposes, and that judgment ought to be for the respondents.

THIS was a case stated by two justices for the county of Middlesex, under 20 & 21 Vict. c. 43.

A complaint had been made by the respondents against the appellants, that the appellants being the owners of the house No. 127 and of the schools in Cottenham-road, which said house and road abut on and form part of the said Cottenhamroad, in the parish of the respondents, being a new street within the meaning of 18 & 19 Vict., c. 120 (the Metropolis Management Act 1855), and several Acts amending the same (i.e. 19 & 20 Vict. c. 112; 21 & 22 Vict. c. 104, and 25 & 26 Vict. c. 102), and within the jurisdiction of the respondents, which had been laid out by the orders of the respondents, had not paid to the respondents the sum of 2611. 18., being the proportion of the estimated expense, as determined by the surveyor of the respondents, to be paid by the appellants as such owners as aforesaid.

The justices had ordered that the appellants should pay to the respondents the sum of 187. 16s. 9d. in respect of the house and the sum of 2501. 68. 3d. in respect of the school buildings. The following is the material part of the case thereupon stated upon the application of the appellants:

1. The complaint was made under the Metropolis Management Act 1855, s. 105, and the Metropolis Management Amendment Act 1862, s. 77. (a)

(a) Act of 1855, s. 105:-" In case owners of the houses forming the greater part of any new street laid out or made, or hereafter to be laid out or made, which is not paved to the satisfaction of the vestry or district board of the parish or district in which such street is situate be desirous of having the same paved as hereinafter mentioned, or if such vestry or board deem it necessary or expedient that the same should be so paved, then and in either of such cases such vestry or board shall well and sufficiently pave the same either throughout the whole breadth of the carriage way and footpaths thereof, or any part of such breadth, and from time to time keep such pavement in good and sufficient repair; and the owners of the houses forming such street shall on demand pay to such vestry or board the amount

It was admitted that the appellants are the owners of the house No. 127, Cottenham-road, and land and school buildings, in the rear of the said house and other houses in that road. The house No. 127 is let to a tenant, and has connection with the school buildings.

[From a plan annexed to the case it appeared that the site of the school buildings covered an area of 29,500 square feet, and that the distance of the same from the street along the passage was about 70ft.]

4. In Dec. 1873, the respondents resolved that Cottenham-road should be laid out as a new street under the provisions of the said Acts, and the amount of the estimated cost thereof, as apportioned on the appellants, was 10l. 148. 9d., as the owners of the house No. 127 in that street, and 2501. 68. 3d. as the owners of the land and scdool buildings in the rear, and the land forming the passage or entrance from the street to the school, as forming part of and abutting on the said street.

5. It was also admitted on both sides that the owners of the houses in Cottenham-road, Nos. 129, 131, 133, 135, 137, 189, 141, 143, 145, and 147, which are situated in the front of a portion of the school premises, have been assessed on the rateable value in similar proportions to the assessment on the house No. 127, belonging to the appellants, towards the cost of making the said street.

6. It was stated on behalf of the respondents, and admitted by the appellants, that the school building and land in question is assessed to the parochial rate as being in Cottenham-road, and that no appeal has been made against such assessment. It was contended on behalf of the re spondents that, under the authority of sect. 105 of the Metropolis Management Act 1855, it was in the discretion of the surveyor of the vestry for the time being to determine the amount of the estimated expenses of making any new street, and in the discretion of the vestry to determine how the proportion into which such expense should be assessed on the owners of the different houses

of the estimated expenses of providing and laying such pavement (such amount to be determined by the surveyor for the time being of the vestry or board), and in case such estimated expenses exceed the actual expense of such paving, then the difference between such estimated expense and such actual expense shall be repaid by the said vestry or board to the owners of the houses by whom the said sum of money has been paid; and in case the said estimated expense be less than the actual expense of such paving, then the owners of the said houses shall on demand pay to the said vestry or board such further sum of money, as together with the sum already paid, amounts to such actual expenses."

Act of 1862, s. 77:-" Where any vestry or district board shall, under the powers given [by sect. 105 of the Act of 1855], have paved any new street, the owners of the land bounding or abutting on such street shall be liable to contribute to the expenses or estimated expenses of paving the same as well as the owners of houses therein, provided that it shall be lawful for the vestry or district board to charge the owners of land in a less proportion than the owners of house property, should they deem it just and expedient so to do."

By sect. 250 of the Act of 1855 the word "owner" shall mean the person for the time being receiving the rackrent of the lands or premises in connection with which the said word is used, whether on his own account or as agent or trustee for any other person, or who would so receive the same if such lands or premises were let at a rack-rent."

By sect. 110 of the Act of 1862, the two Acts are to be construed as one.

[Q.B. DIV.

forming such street, or of the land abutting thercon shall be calculated, by resolving that the proportions in which each such owner should be assessed should be fixed, either by the amount of the assessment to the parochial rates, or by the length of frontage to the street of each house or piece of land, or by any other method that may appear equitable to the said vestry, according to the circumstances of each particular case, and that it was not within the power of the justices to interfere with or review the acts of the vestry or surveyor in that behalf.

7. It was admitted by both parties that, in the calculation of the proportion of the cost of making the said street, the same was made not on the length of the frontages to the street, but on the assessment of the respective properties to the parochial rates.

8. On the other hand, it was contended by the appellants that they were not liable for the rate levied on the said schools and land, as they were not, as owners of the said schools and land, owners of the houses "forming" the said street within the meaning of sect. 105 of the Metropolis Management Act 1855, and that if they were liable at all, they were only liable for a rate levied in respect of frontage.

9. Under these circumstances the justices considered that the appellants came within the provisions of the several sections above quoted, and that the respondents were entitled at their discretion to apportion the cost either in proportion to the assessment of the properties or according to frontage. They therefore made an order, as prayed, upon the appellants for the payment of the sum of 2617. 18., as the proportion of the estimated expense of providing and laying the pavement and making the road in the said new street in respect of the said house and schools.

10. The question for the court is whether the appellants, as owners of the land and school buildings, are, as owners of a house forming such new street within the meaning of sect. 105 of the Act of 1855, or, under sect. 77 of the Act of 1862, as owners of land abutting on such new street, liable to be rated for the making of the said new street; and if they are, whether the said rate or amount should be assessed at the discretion of the respondents upon the amount of the frontage or upon the rateable value of the land and school buildings.

11. If the court shall decide in the affirmative, the order made for the payment of the whole amount claimed by the respondents is to be carried into effect.

12. If the court shall decide otherwise, an order is to be made for payment of the sums offered to be paid by the appellants; that is to say, 107. 148. 9d. in respect of No. 127, Cottenhamroad, and the sum of 101. 148 9d. in respect of the adjoining piece of land or passage way, or such other to be made as directed by the court.

Sir H. James, Q.C., and Marriott, for the appellants, relied chiefly on The Plumstead Board of Works v. The British Land Company (L. Rep. 10 Q.B. 16 reversed on appeal, ib. 203). In that case the defendants, being owners of certain lands, had laid them out for building purposes, and made roads across them which were dedicated to the public as far as any act of the defendants was concerned. The plaintiffs, from time to time, paved the new streets formed by the houses on the

estate, and apportioned the costs among the owners of houses forming the streets, and the owners of land bounding and abutting on the streets; and in so doing they assessed the defendants in respect of the new streets and roads where bounding or abutting on the sides or ends of the streets paved, as being "lands abutting on those streets under sect. 77 of the Metropolis Management Amendment Act 1862. It was held by the Exchequer Chamber, reversing the judgment of the Queen's Bench, that the defendants were not owners." He also argued that the area occupied by the appellants was not land within the meaning of sect. 77 of the Act of 1862, and that the school buildings did not form part of the street within the meaning of sect. 105 of the Act of 1855. And he further referred to Angel v. Paddington Vestry, L. Rep. 3 Q. B. 714, and the remarks thereon of Lord Coleridge, C. J., in the Exchequer Chamber, in the Plumstead case (ubi sup.)

66

Thesiger, Q.C., Besley with him, for the respondents. The true construction of sect. 105 of the Act of 1855 is strongly in favour of the respondents. The liability to the rate depends upon the advantage derived from the paving, and that advantage is not confined to houses actually looking over the street, but extends to all buildings which have their access from the street (Baddeley v. Giugell, 1 Ex. 319). That case is precisely in point. The case itself was decided upon the construction of The Metropolis Paving Act (57 Geo. 3, c. 29), 8. 24. That section enacted that paving rates should be laid "upon all persons who shall inhabit, bold, occupy, be in possession, or enjoy any messuages, tenements,... or other buildings or hereditaments, situate or being within any of the streets or places within the parochial or other district." Communicating with the street by means of a covered gateway, there was a yard, around which were several dwelling houses, warehouses, and other buildings. The yard (with the exception of the width of the gateway) and all the dwelling houses, &c., round the same, were situate at the back of several houses which fronted the street. The entrance into the yard was through carriage gates, and along a covered gateway. It was held that the occupiers of the yard and houses therein were liable to the paving rate, such premises being for that purpose "within the street," inasmuch as they had a frontage on the street, and their sole communication was with the street. "The Act," said Pollock, C.B., "might have been more clear if the Legislature had used the words communicating therewith and abutting thereupon,' but I think the meaning is ascer tained by viewing the question thus: was it the intention of the framers of this Act that a person like the defendant should wholly escape the rate? He clearly derives some benefit from the Act; as one of the public in the immediate neighbourhood he shares in the public advantage. For every popular purpose these premises are within the street.' The meaning of the Act is, that the person whose premises directly communicate with the street shall be liable to pay.' He also cited

Nesbit v. Greenwich Board of Works, L. Rep. 10 Q. B. 465;

Mayor of Manchester v. Chapman, 37 L. J. 73, M. C.; and, as conclusive of the ownership of the appellants,

Bowditch v. Wakefield Board of Health, L. Rep. 6 Q. B. 567.

[Q.B. DIV.

Marriott, in reply, contended that the actual frontage of a street was for calculating the advantages to be derived from paving the essential part of it, and that it was upon the occupiers of the actual frontage that the paving expenses would equitably fall.

COCKBURN, C.J.-On the whole, I am of opinion that judgment ought to be for the respondents. I own that my mind has fluctuated much during the argument, and I do not mean to say that I am altogether free from doubt even now, but the conclusion which I have come to is that the reasons given for upholding this rate are good. The words of 18 & 19 Vict. c. 120, s. 105, are: "The owners of the houses forming such street shall pay to such vestry or board the amount of the estimated expenses of providing and laying such pavement." Now, it cannot be said that we have before us the case of a house forming, physically, part of a street. But, looking at what I cannot help thinking was the intention of the Legislature amid all this varying legislation, I must say that I think that, constructively, the house formed part of a street within the meaning of the statute. Baddeley v. Gingell (ubi sup.) is not directly in point, inasmuch as the statute on which that case

was decided used the words "in the street." Still, "in the street" and " forming part of the street" are expressions substantially identical. And, looking to the justice of the case, and to the proper incidence of contributions to this paving rate, I observe that although the house does not front the street, it has access to it. Access, in fact, is the foundation of liability, and it is essential to access that a street should be well paved. If the street be well paved, and the owner of a particular house has access to it, then it matters little where the house is. A large and liberal construction should be put upon the statute. It is to be observed that for all practical purposes, such as postal purposes, the house forms part of the street. I was, I confess, much staggered by the argument that, upon the construction I now give to the statute, old courts which are distinct from the street, but to which the access is from the street, would come within the section, and be liable to be rated. But the answer to this argument seems to be that such courts are public property, whereas the house with which we are now dealing is private property. Upon all principles of equity and justice the rate ought to be allowed.

I

MELLOR, J.-I am of the same opinion. I think myself that this case is à fortiori to Baddeley v. Gingell (ubi sup.), but independently of that case, should have come to the same conclusion as my Lord has done. Many of the arguments which have been urged before us might be considered by the vestry in estimating the amount of the rate, but there is no reason why the appellants should escape from payment of the paving expenses altogether. The appellants have the benefit of an open space between their school buildings and the street, and are practically in the same position as frontagers. As for the varying phraseology of the Acts, I think that only shows that the Legislature intended that different constructions should obtain according to the differences of the subject matter. It is reasonable and just that the rate should not fall upon frontagers only.

QUAIN, J.-I am of the same opinion. Unless this case be distinguishable from Baddeley v.

Q.B. Div.]

[Q.B. Div.

in his possession, with intent to sell or expose for sale, the flesh of any diseased animal, or any unsound, putrid, or unwholesome meat, fish, poultry, or other victuals or provisions, unfit for the food of man, or which would be deleterious to the health of persons who might feed thereon (the unfitness or deleteriousness whereof shall be in the decision of the justices adjudicating on the complaint thereof), or shall kill any diseased animal for the purpose of sale for human food, every person so respectively offending shall for such offence forfeit and pay the fine or sum of forty shillings.

Under the above bye-law the appellant was convicted for selling cheese which the justices found as a fact was decomposed and unfit for human food. [The case set out the evidence in full, and such evidence was conflicting upon this point.] The points of law, as raised by the case, were these:

1. Whether the Doncaster Town Council had power under the Municipal Corporations Act, sect.

By sect. 90 of the Municipal Corporation Act 1835, "It shall be lawful for the council of any borough to make such bye-laws as to them shall seem meet for the good rule and government of the borough, and for the prevention and suppression of all such nuisances as are not already punishable in a summary manner by virtue of any Act in force throughout such borough.”

any

Under the above section the Town Council of D. made a bye-law by which "any butcher, dealer in meat, or other person," exposing for sale " meat, fish, poultry, or other provisions" unfit for food or deleterious to health, was adjudged to pay a fine of forty shillings.

S. was convicted by justices under the bye-law of having in his possession cheese which the justices found as a fact to be decomposed and unfit for food.

Held, upon a case stated under 20 & 21 Vict. c. 43, that the bye law was legally made, and that the conviction ought to be affirmed.

THIS was a case stated under 20 & 21 Vict. c. 43, by two justices of the peace for the Borough of Doncaster for the opinion of the Court of Queen's Bench.

The respondent was inspector of nuisances for the borough, and as such inspector, laid an information against the appellant, being a grocer in the borough, for that he unlawfully had in his possession, with intent to sell, certain unwholesome victuals or provisions, to wit, cheese, unfit for the food of man, contrary to the bye-laws of the said borough.

By the Municipal Corporations Act 1835 (5 & 6 Will. 4, c. 76) sec.t 90, it is enacted as follows:

It shall be lawful for the council of any borough to make such bye-laws as to them shall seem meet for the good rule and government of the borough, and for the prevention and suppression of all such nuisances as are not already punishable in a summary manner by virtue of any Act in force throughout such borough; and to appoint; by such bye-laws such fines as they shall deem necessary for the prevention and suppression of such offences....

Among certain bye-laws made under the above section, was bye-law No. 35, under which the information was laid. Such bye-law is as follows:

35. Exposing meat for sale.-If any butcher or dealer in meat, or any fishmonger, poulterer, or other person, shall expose or offer for sale in or upon his shop, stall, warehouse, or in any part of his premises, or otherwise, within the said borough, or have

force of law within the borough of Doncaster.

2. Whether the Sanitary Acts subsequently passed had not virtually repealed the bye-law, if it ever had the force of law?

3. Whether cheese was an article of food within the meaning of the bye-law?

If the court should be of opinion that the bye law was legally and properly made, the conviction was to stand; if the court should be of opinion otherwise, the complaint was to be dismissed.

Lockwood, for the appellant.-It must be conIceded that the sale of the cheese was within the words of the bye-law, but it is submitted that the bye-law is ultra vires. It cannot be said that the appellant's having the cheese in his possession amounted to a nuisance within the meaning of sect. 90 of the Municipal Corporations Act. A nuisance to be indictable must be a nuisance in fact (R. v. Davey, 5 Esp. 217). [BLACKBURN, J. referred to Reg. v. Stephenson, 3 F. & F. 106. In that case it was held that a meat salesman can be indicted and convicted at common law for knowingly exposing meat for sale in a public market as fit for human food, which, in fact, is not so. For Willes, J. asked the jury, "Did the defendant know when he sent up the meat that it was unfit for human food? and did he send it up to be sold for human food ?"]

No counsel appeared for the respondent. Per CURIAM (Blackburn, Mellor, and Quain, JJ.) -This conviction must be affirmed.

Judgment for the respondent. Solicitor for the appellant, R. Beldan, for E. G. Peagam, Doncaster.