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rity the expenses thus incurred. In a case like the present, where the works are executed under the powers conferred upon the local authority by the 69th section of the Public Health Act 1848, there are two modes provided for recovering uch expenses, first, the total amount of expense is apportioned amongst the owners of the premises supposed to be improved and benefitea by the works, according to their several frontages, and then the amount so apportioned is to be recovered by summary proceedings taken by the local authority against such owners; secondly, by declaring the expenses to be private improvement expenses. The result of the first mode is to throw the expenses either in one sum or by instalments (sect. 146) upon the owners; that of the second is to throw the expenses in any event over a period of years (sect. 90), and so throw a portion of the expense upon the occupier or person having a less interest than the whole fee simple (sect. 91). The course of proceeding when the first mode is adopted is as above mentioned for the surveyor to apportion the total expenses of the execution of the works amongst the different owners of the land presumedly benefited by their execution, according to frontages, and such apportionment is conclusive upon each owner at the expiration of three months from the service of a notice of the apportionment upon him: (Sect. 63 of the Act of 1858). The course of proceeding when the expenses are either by enactment private improvement expenses (sect. 76), or are declared by the local authority to be such, is for the authority to make a rate for the amount of expenses upon the occupiers of the premises in respect of which they have been incurred, called a private improvement rate, sufficient to discharge such expenses (sect. 90, Act of 1848), and to enforce the payment of the sum assessed in default of payment, "when due, and for fourteen days after demand in writing," by proceedings before a justice: (sect. 103). These being the general provisions of the statutes in question, the question upon which our judgment is asked arises, viz., Whether the latter part of the 62nd section of the Act of 1858 applies to the summary proceedings against the owners referred to in the 69th section of the Act of 1848, so as by implication to make a demand necessary, from notice of which the period of limitation is to be reckoned, or whether it is limited to the second mode of recovering the expenses incurred, viz., when they are declared to be private improvement expenses, and a rate is made upon the occupier. Now the present complaint is undoubtedly a summary proceeding, and in the language of the 62nd section the expenses are sought to be recoverable in a summary manner, and the only question can be whether the next following words in the 62nd section, viz., "incurred in works of private improvement" are used in the general sense of works executed upon private property, and tending to improve them, or are to be limited to expenses declared to be private improvement expenses, and for which a private improvement rate has been made. Now it must be observed that if the narrower sense is put upon these words, this branch of the 62nd section would be rendered superfluous: for as already pointed out by the express language of the 103rd section of the Act of 1848, proceedings cannot be taken to recover the sum assessed in a rate made for private improvement expenses, until

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fourteen days after it has been lawfully demanded in writing, and as such a demand is therefore necessary to make the "matter of complaint' complete, the six months limitation provided by t'e 11 & 12 Vict. c. 43, applies to that, and the e actment of the 62nd section, if so limited, was therefore unnecessary. We think, therefore, we are well warranted in holding that when the Legislaturc says that the time is to be reckoned as in the 62n section in "all" summary proceedings, their object was to extend the demand to proceedings like the present, in order that the owner liable might have a distinct written demand before he could be compelled to pay. It is no doubt true that in the 69th sect. a provision is made for giving the owner a notice of the apportioned sum which he is alleged to be liable to pay; but no such provision is found in sects. 49, 51, 54, 58, and 60, in which similar summary proceedings are provided for recovery of similar expenses, and without a demand the party liable would be exposed to proceedings the moment the works were completed, without having any means of knowing the amount of his liability, or that it had in fact accrued. We think, therefore, that the Legislature has designedly made use of the larger words, “works of pnblic improvement," instead of the narrower ones, 'expenses declared to be private improve ment expenses." No doubt some little difficulty arises in this construction from the concluding language of the 62nd section, which, in speaking generally of the service of " notice of demand" as of a known and existing requisite, instead of specifically enacting that a demand shall be made, seems to imply the existence of some prior specific legislative enactment requiring a demand; but it is to be observed that in the 103rd section the demand is introduced in somewhat the same language of condition, and we do not think that this difficulty (if it be one) is sufficient to outweigh the course of reasoning which induces us to answer the first question put to us by saying that a demand is necessary, from which the six months in the 11th & 12th Vict. c. 43, s. 11, is to be reckoned. In the course of the argument various cases were referred to by one side or the other in support of their contention. The case of Jacomb v. Dodgson (3 B. & S. 461), which was first cited, is clearly an authority for holding that, at all events, the period of three months from the notice of apportionment, which is the period given to the owner within which he may dispute the apportionment, is to be excluded from the computation of the six months within which the complaint is to be made; but as in that case there was a demand made at the expiration of these three months, the decision does not appear to be in opposition to the conclusion at which we have arrived upon principle. The principle upon which the case of Addison Y. Labalmondiere (1 E. & E. 41) is decided is in accordance with our decision; and the case of Eddleston v. Francis (7 C. B., N. S., 568), although at first sight apparently an authority to the contrary, is not so really, for although the case was decided after the passing of the Local Government Act of 1858, the proceedings in question in that case had taken place before its passing, and the court, upon that ground, declined to apply the 62nd section of the Act to proceedings commenced before its passing. This being so, the question then arises, whether the notice of apportionment of the 12th April was a sufficient demand, within

CS' CASES. HUNT (resp.).

C.P. Div.]

MAGISTRATES' CASES.

SOPER v. MAYOR OF BASINGSTOKE AND OTHERS.

the 62nd section, and we answer that question in the negative. Our reasons for this are that notice of apportionment is designed to fulfil a very different office from the notice of demand. It is a step in the machinery provided for the purpose of ascertaining the liability of the owner; there is not at the time it is served any liability to pay the apportioned sum, nor can there be until the lapse of three months afterwards, and in the event of the owner successfully disputing the apportionment, that sum so apportioned will never become due. What we think the 62nd section requires is such a document as shall bring clearly and pointedly to the mind of the person in default that he is then required to pay the sum which has been in some way found to be due from him. With these answers, therefore, we remit this case to the justices for further adjudication.

Judgment for appellant. Solicitors for appellant, Nicol, Son, and Jones. Solicitors for respondent, Morrisons, for G. Carter Morrison, Reigate.

Solicitor for the justices, J. Merrick Head.

COMMON PLEAS DIVISION. Reported by S. HARE, Esq. Barrister-at-Law.

Monday, April 23, 1877. SOPER v. MAYOR OF BASINGSTOKE AND OTHERS. Municipal election-Objection to nomination paper -Situation of qualifying property of seconderImmaterial misdescription-Municipal Elections Act 1875 (38 & 39 Vict. c. 40).

fourteen days after it has been h in writing, and as such a demand necessary to make the "mater complete, the six months limitat t'e 11 & 12 Vict. c. 43, applies e actment of the 62nd section, fin therefore unnecessary. We think are well warranted in holding that via lature says that the time is to be the 62n section in "all" summi? their object was to extend the desi ings like the present, in order that the might have a distinct written de could be compelled to pay. It is nodi in the 69th sect. a provision is madeir owner a notice of the apportioned st is alleged to be liable to pay provision is found in sects. 49, 51, in which similar summary proceeding vided for recovery of similar expenses a demand the party liable would be ceedings the moment the works without having any means of knowing of his liability, or that it had in fact think, therefore, that the Legi signedly made use of the larger wirk public improvement," instead of t ones, "expenses declared to be print ment expenses." No doubt some arises in this construction from the language of the 62nd section, which, i generally of the service of "noticed a known and existing requisite, instead enacting that a demand shall be imply the existence of some prior spe enactment requiring a demand; but served that in the 103rd section the d troduced in somewhat the same la dition, and we do not think that this it be one) is sufficient to outweight reasoning which induces us to question put to us by saying that necessary, from which the six month & 12th Vict. c. 43, s. 11, is to be the course of the argument varie referred to by one side or the de of their contention. The case of Jam (3 B. & S. 461), which was first cited authority for holding that, stallere of three months from the notice de ment, which is the period given within which he may dispute the is to be excluded from the comp months within which the complaint but as in that case there was a de the expiration of these three months does not appear to be in opposition sion at which we have arrived The principle upon which the c Labalmondiere (1 E. & E. 41) accordance with our decision; and Eddleston v. Francis (7 C. B, N.S. at first sight apparently an anthr trary, is not so really, for althoug decided after the passing of the Lo Act of 1858, the proceedings in case had taken place before its court, upon that ground, declin 62nd section of the Act to procee before its passing. This being whether the noticed

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Sub-sect. 2 of sect. 1 of the Municipal Elections Act 1875 requires that at any municipal election every candidate shall be nominated in writing subscribed by two enrolled burgesses of the borough or ward for which the election is held as proposer and seconder, and by eight other burgesses as assenting to the nomination. The first schedule to the Act provides a form of nomination paper, to which is appended a foot-note to the effect that "the number on the burgess roll of the burgess subscribing, with the situation of the property in respect of which he is enrolled on the burgess roll," must be added.

The situation of the property in respect of which a seconder of a candidate subscribed a nomination paper was entered as "High-street." The name had recently been changed to "Winchester-street." There was no dispute as to the identity of the seconder. The nomination paper was objected to as irregular, and the mayor allowed the objection, when the other candidates were returned without a contest. Upon appeal it was

Held that the misdescription was immaterial, and that the election was therefore void.

JOHN BURGESS SOPER presented a petition under the Municipal Elections Acts 1872 and 1875, to the court to the following effect. He stated that he was a candidate for the office of councillor of the borough of Basingstoke, at the election held on 1st Nov. 1876; that he was duly nominated by a nomination paper, subscribed by two enrolled burgesses of the said borough as proposer and seconder, and by eight other burgesses; that an objection was taken to his nomination paper before the mayor of the said borough, upon the ground that the situation of the property in respect of which his seconder

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was enrolled on the burgess list was improperly described upon his nomination paper as being " Highstreet," whereas the property is described on the burgess roll as being "Winton-street;" that Highstreet is the name by which the street in question was and is generally known, its name having been very recently changed to Winchester or Wintonstreet; that no one could be misled by its being called High-street, and that the Mayor gave his decision allowing the objection, whereby the petitioner lost his election. The petitioner prayed that the election might be determined to be void. A special case was subsequently ordered to be stated for the opinion of the court, pursuant to 35 & 36 Vict. c. 60, s. 15, sub-sect. 6, and rule 37 of Michaelmas Term 1872.

The special case stated the facts above-mentioned, and set out the subscription of the seconder of the nomination paper as follows: "649, John Owen, of High-street.' It added that the name painted upon the street in question is "Winchester-street." The question, therefore, left for the opinion of the court was, Whether the objec tion was good in substance? Should the court be of that opinion, judgment was to be given for the respondents; if otherwise, for the petitioner. Costs were to be in the discretion of the court.

Charles, Q.C. and Lord, for the petitioner.-The seconder was sufficiently described. In Knowles v. Brooking (2 C. B. 226), an objector's place of abode being wrongly described on the list of voters, he, in the signature to his notice of objection, gave his true place of abode, and not the abode mentioned in the register, and it was held that the notice was correctly signed. They cited Bear v. Jones (a).

Crump, for the respondents.-The question is whether any address other than that on the burgess roll can be subscribed by a person nominating another for a municipal office. The burgess roll is the only document by which the mayor can be guided. In a large town it is impossible for the mayor to know every one, and in a small town he is not called upon to make use of what private knowledge he has. Under 5 & 6 Will. 4, c. 76, nominations were oral and not written, and the persons nominated could be identified. Sect. 142 of that Act provided for inaccuracies in voting papers. The Act which afterwards introduced nomination papers made no provision for inaccuracies in them, although it continued the saving clause of the earlier Act: (Mather v. Brown, L. Rep. 1 C.P. 659; 34 L. T. Rep. N. S. 869). So long as there is any inaccuracy it is immaterial in what part of the paper it is. The description must strictly comply with the requirements of the Act.

Reg v. Plenty, L. Rep. 4 Q. B. 346;
Calver v. Roberts, 25 L. T. Rep. N. S. 751.

(a) In Bear v. Jones, Docwra, and Papillon, a case heard in the Common Pleas Division on Jan. 20, 1877, the petitioner was nominated as a candidate for election to the office of councilior of the borough of Colchester; and it was objected to his nomination paper that his "place of abode" was entered as of "St. Botolph's House," whereas against his name on the burgess roll was entered "St. Botolph's House, Magdalen-street.' The defendant Papillon, who was then mayor, allowed the objection.

Lord COLERIDGE, C.J. and GROVE, J. held that, taking a common sense view of the case, the place of abode was sufficiently described, there being no assertion that it did not sufficiently designate the residence of the candidate; and overruled the objection, with costs against all the respondents except the mavor.

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C.P. Div.]

CALDOW v. PIXELL.

DENMAN, J.-Judgment must be for the petitioner, who says that High-street is the name whereby the street was and still is generally known, in which the property of his seconder is situate, that the name of the street has only very recently been changed from High-street to Winchester or Winton street, and that no one in fact was or could be misled by the description thereof as High-street, instead of Winchester or Winton-street; which facts are admitted by the respondents. The actual question is whether a person who signs a nomination paper as a seconder of a candidate for election to a municipal office, and uses his own name and number on the burgess roll, adding as his residence the house in which he really resides, but naming the street in which it is situated by a name which it recently bore, complies with the provisions of the Municipal Elections Act 1875. Our decision turns upon the construction of sub-sect. 2 of sect. 1 of that Act, which requires that every candidate for a municipal office shall be nominated in writing, and his nomination paper subscribed by two burgesses as proposer and seconder, and by eight other burgesses as assenting to the nomination. It is not objected that the names and places are not mentioned, but that the descriptions vary from the form No. 2 by the first schedule to the Act required to be followed, at least in substance, by the sub-section above. But there is a foot-note to the exemplar signatures, "G. H., of . . . ." &c., in the form requiring the addition of "the number on the burgess roll of the burgess subscribing, with the situation of the property in respect of which he is enrolled on the burgess roll." This provision, relating to the situation of the qualifying property, is the one upon which the dispute has arisen. It cannot be necessary that the description of a burgess upon a nomination paper should be exactly the same as that upon the burgess roll. There are many cases in which there may be a fairer description. For instance, a sub-division of a street may have taken place. A High street may have been divided into several streets, terraces, places, or crescents. No. 6, High-street, may have become No. 10, Gladstone-terrace. In that case the latter address would be more accurate than the former. All that is required by the Act is that the person should be identified, which is to be done by his name, his number upon the burgess roll, and the situation of the property in respect of which he is enrolled, being set out. Is there any authority to the contrary? The case of Mather v. Brown, which was cited by the respondents' counsel, is rather an authority against them, because the principle upon which the court there proceeded was that the case fell within the letter of the Act which it was bound to construe strictly. The mis-description there was about a matter as to which there could not be two things true, that is, as to the name of the candidate. His name was entered as "Robert V." for "Robert Vicars," and the ground of decision was that although Will." or "Willm." are recognised at law as William," the letter "W." alone is not; and therefore that "V." could not be recognised as "Vicars," that is, as the Christian name required by law to be set out. The subject matter also of that case is different from that of the present one. The other cases cited also differ. In them the person had changed his residence. I think the description Highstreet" true in every material sense, because no

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[C.P. DIV. one could be misled; and that therefore the Mayor ought not to have held the nomination an improper one.

LOPES, J.-I do not adopt the view that the description at the foot of the nomination paper should be actually identical, or in precisely the same words, as the description upon the burgess roll. The seconder should be so described that he may be identified. That he can be so here is not disputed.

Judgment for the petitioner, with costs against all parties except the Mayor.

Solicitor for the petitioner, G. Mayor Cooke. Solicitor for the respondents, Scott, for W. H. Bayley, Basingstoke.

April 26 and 27, 1877. CALDOW v. PIXELL. (a)

The Ecclesiastical Dilapidations Act 1871 (34 & 35 Vict. cap. 43), sect. 29-Surveyor's reportProvision as to time directory or imperative. Sect. 29 of the Ecclesiastical Dilapidations Act 1871 requires the bishop of a diocese, within three months after the avoidance of a benefice, to direct the ecclesiastical surveyor to inspect and report upon dilapidations:

Held, that this requirement is, as to time, directory and not imperative, and that the right of action for them is not lost to an incoming incumbent by the bishop's delay.

An action was brought by the plaintiff to recover 1177. 168. 6d. for dilapidations in respect of the benefice of Skirwith, in the diocese of Carlisle, claimed as due on an order alleged to have been made under the provisions of the Ecclesiastical Dilapidations Act 1871. After a demurrer by the plaintiff to the defendant's statement of defence had been set down for argument, by an order of court, a special case was ordered to be stated for the opinion of this Division.

The case set forth the following facts: The defendant resigned the said benefice on 3rd July 1874, and was succeeded by the plaintiff, who was admitted on 6th Jan. 1875.

On the 10th Nov. 1874, the Bishop of Carlisle directed the diocesan surveyor to inspect the buildings of the benefice of Skirwith, and to report to him, in accordance with the provisions of the above Act, what sum (if any) was required to make good the dilapidations for which the late incumbent was liable; and to send copies of the report to both incumbents; and to certify the dispatch of such copies. On 11th Jan. 1875, the surveyor inspected the said buildings, and reported that the sum of 1181. was required to make good such dilapidations. The buildings are situated in a position much exposed to high winds and bad weather. They remained unoccupied and unrepaired from 3rd July 1874 until 11th Jan. 1875, and the surveyor did not see them until the latter date. The defendant objected to the report on the ground that the inspection was not made within three months from the avoidance of the benefice, as required by sect. 29 of the above Act, but was delayed till after six months. The surveyor, being called upon to report the amount of repairs which might have become necessary during the six months after avoidance,

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certified the sum of 3s. 6d., which reduced the sum of 1181. to 1177. 168. 6d., the amount sued for. On 31st March 1875, the bishop made an order stating at the above sum the amount for which the defendant as such late incumbent was liable.

The question for the consideration of the court was whether the plaintiff could recover from the defendant the said sum of 1177 16s. 6d. This turned upon whether the words of sect. 29, namely, within three calendar months after the avoidance of any benefice," are directory or imperative.

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Gibbs, for the plaintiff. The time is directory only.

Gleaves v. Marriner, L. Rep. 1 Ex. Div. 107; 34 L. T.
Rep. N. S. 496;

Wright v. Davies, L. Rep. 1. C. P. Div. 638; 33 L. T.
Rep. N. S. 858;

Rochester v. The Queen, E. B. & E. 1024;

Reg. v. Ingalls, L. Rep. 2 Q. B. Div. 199; 35 L. T.
Rep. N. Š. 552.

The court must consider the balance of con-
venience.

Staveley Hill, Q.C. and J. Edge, for the defendant. -The cases cited refer to delay in the performance of public duties, and not of private ones. They quoted

Cripps' Law of the Clergy, 318;
Howard v. Boddington, decided 27th Feb. 1877, by
Lord Penzance.

Vaux v. Vollans, 4 B. & Adol. 525;
Bowman v. Blyth, 7 E. & B. 26.

Sect. 33 requires that the incumbent shall send in to the Bishop his objection to the surveyor's report within a month, but the Bishop may receive an objection transmitted at a later period. There are no such qualifying words as to time in sect. 29. DENMAN, J.-In this case judgment will be for the plaintiff. The question is one which is thrown out as doubtful, and not decided, by Bramwell and Amphlett, BB., in the case of Gleaves v. Marriner. Our attention has been called to a short statement by them in that case, in which they expressed a kind of doubt whether the section upon which this case turns is only directory. Is sect. 29 then directory, or imperative, so far as regards the first four words, "within three calendar months ?" It has been held in Gleaves v. Marriner, that, so far at any rate as the surveyor is concerned, there is no fixed time within which he is bound to inspect and report; but it is now contended that the clause as to time must be strictly construed as against the bishop, and that if he gives his direction to his surveyor to report a day too late the whole transaction will become null and void; and the order of the bishop one upon which no action can be brought. Now sect. 53 enacts that without such an order no sum shall henceforth be recoverable in respect of dilapidations, and it is contended by the defendant that this section prevents any action from being brought which is not supported by an order made strictly under the provisions of this Act. But I think that is putting too narrow a construction upon the words used in that section, "unless the claim for such sum be founded on an order made under the provision of this Act." They are capable of a milder construction, and there are many analogous cases upon the construction of Acts of Parliament in which strong words directing particular acts to be done under their provisions have been held to mean acts done substantially in pursuance of an intention to follow the provisions of such Acts.

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Such cases would not, certainly, be authorities for giving the words of this Act a loose construction; but in my opinion they are sufficient to enable us to hold that an order may be made by the bishop, which would not be vitiated by delay in giving directions to the surveyor, and that we should construe sect. 29 to be directory only. Upon this question, whether the words of sect. 29 are imperative or directory, so far as I can find, it would not be easy to lay down a stricter rule than that laid down by Lord Campbell in the case of Liverpool Borough Bank v. Turner (2 D. F. & J. 502; 3 L. T. Rep. N. S. 474), mentioned by Sir Peter Maxwell in his work upon the construction of statutes, who says (p. 331), "When a statute commands that something shall be done, or done in a particular manner, the important question arises, when the statute is silent respecting it, whether the command is to be considered as a mere direction or instruction of no obligatory force, and involving no invalidating consequences for its disregard; or as imperative, with an implied nullification for disobedience. No rule can be laid down for deter

mining this question beyond the general one, that it depends on the scope and object of the enactment. Though a command to do a thing in a particular way does not necessarily imply a prohibition to do it in any other way, it would, nevertheless, clearly imply it, if, without it, the command would be nugatory, and the aim and object of the Legislature defeated." In the same work a number of authorities are cited, and two or three other observations are worthy of mention, because they fairly sum up the doctrines of law upon the subject. At page 333 the author says, "A strong line of distinction may, in general, be drawn between cases when the provisions affect a public duty, and those which relate to a privilege or power. When powers and privileges are granted, subject to compliance with certain regulations or conditions, it seems, in general, not contrary to justice or policy to exact a rigorous observance of them, and it is therefore probable that such an observance was deemed essential by the Legislature. But when a public duty is imposed, and the statute requires that it shall be performed in a certain manner, or within a certain time, it is difficult to believe that the Legislature intended the injustice and inconvenience to others which would result if the act to be done were of no legal validity, unless the directions of the statute were strictly observed. In general, then, it seems there where a statute confers a privilege or a power, the regulative provisions which it imposes on its acquisition or exercise are essential and imperative.' A broad line of distinction is drawn further on, at page 337, "On the other hand, where the prescriptions of a statute relate to the performance of a public duty, they seem to be generally understood to be merely instructions for the guidance and government of those on whom the duty is imposed, or directory only. The neglect of them may be punishable, indeed, but it does not affect the validity of the act done in disregard of them. To give them that effect would often lead to serious inconvenience and absurdity." The author proceeds to give illustrations, and then adds, at page 340, "In all cases, however, the question as to the Legislature intending a provision to be imperative or directory, in the sense above-mentioned, whether it arises in respect of a power or duty, or otherwise, is to be determined by

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weighing the consequences of either view. Where the Legislature has expressed no intention on the point, that intention should be imputed to it which is most probable; and it must be that which is most consistent with reason, and a due regard to convenience and justice." Applying these principles, which we are warranted in doing upon the cases which are cited in the work, on every ground the words of the enactment before us must be held to be directory, and not imperative. In the first place, the statute is not one which for the first time confers a power or a privilege. It deals with the existing right of recovering for dilapidations, but says that they shall be recovered in a different way. It gives an action to the actual incumbent, both for his own benefit and for the benefit of the living, and imposes upon the bishop the duty of setting the proceedings in motion; and there is an appeal against the order of the bishop when it is made upon the surveyor's report. Then, this is a statute imposing a public duty upon the bishop for public purposes, that is, for enabling proper steps to be taken to compel payment of money, due from an outgoing incumbent, or his estate, for repairs required to be done to the buildings of his benefice, into Queen Anne's Bounty Fund; and it only makes the plaintiff the instrument of carrying out the previously existing rights. The bishop, having thus a public duty to perform, the mere fact that he neglects to perform it at the proper time, does not render the provisions of the Act void; and on this ground it is reasonable to assume that the section was intended to be directory and not imperative. Upon both grounds, therefore, that this is not a statute conferring a power or a privilege, but one which imposes a public duty, the section must be held to be directory. But there is also a higher ground, namely, that of convenience and justice. There are no words making the clause imperative. If we were so to hold it, we should in effect take away the right of action for dilapidations in the event of the bishop delaying for one day only to direct the surveyor to inspect. The whole right of an incoming incumbent to recover against an outgoing incumbent would be gone, and the latter would be free from all liability at law. This would give rise to grave inconvenience, and defeat the intention of the Act. If, on the contrary, we hold the section to be directory only, we should not prevent the bishop for acting, even if he were to be so far wrong as not to comply with the requirements of the Act as to time; and if he acted unfairly there would be an appeal, bringing with it a review of the repcrt of the surveyor and of the order of the bishop. Here the defendant has had all the benefit of an appeal, although he neglected to take advantage of his right to require a re-survey because he thought the words of the section imperative. Mr. Gibbs has cited many cases before us. They all relate to the non-appointment to office-mostly of persons who are to act in public capacities in relation to the poor-and are open to the observation that where a large number of the public are concerned things would come to a stand-still if provisions relating to time were imperative; and the Court of Queen's Bench has so decided, and has given a remedy for a delay by way of mandamus. This case is not of such general importance, but I cannot measure a public duty by degrees. The case cited by Mr. Stavely Hill, on the other

[C. CAS. R.

side, to support his contention, is the recent one before Lord Penzance. That case is not like the present. It was under the Church Discipline Act, and the whole jurisdiction was of a criminal nature, and depended upon the movers in the matter giving their opponent notice. It is not, in fact, so strong as the case of the non-observance of time to appeal. It is founded upon the previous decision in Vaux v. Vollans a (proceeding also of a penal nature under 57 Geo. 3, c. 99, s. 40, in which notice is required to be given before action in certain cases), and decided that there was no locus standi to sue for a penalty unless certain preliminary proceedings were taken. After carefully considering the cases, I can recognise the distinction between a power or a privilege, or a procedure given by an Act subject to condition or to time, and the case of a pre-existing duty for public purposes in the performance of which a public officer is not limited as to time.

LOPES, J.-This is an important case, and I have had doubts upon it during the course of the argument; but upon the whole I think the plaintiff ought to succeed. I shall not repeat what my learned brother has so fully gone into, but I agree with him that sect. 29 is directory and not imperative. The scope, object, and intention of

the Act of Parliament was to strike a balance of inconvenience between the action of the old incumbent becoming null and void, and the injury and delay caused to the new incumbent.

Judgment for the plaintiff, with costs. Solicitors for the plaintiff, Gray and Mounsey. Solicitors for the defendant, Miller and Smith.

CROWN CASES RESERVED. Reported by JOHN THOMPSON, Esq., Barrister-at-Law.

Saturday, April 21, 1877.

(Before COCKBURN, C.J., MELLOR, GROVE, LINdley, and HAWKINS, JJ.)

REG. v. J. S. SCOTT.

Indictment-Perjury-Averment of materiality. An indictment for perjury stated that an action was brought in the Chancery Division, in which the prisoner was the plaintiff and W. the defendant, that it came on for hearing before the ViceChancellor, that the prisoner did appear as a witness, and did falsely swear that he never did employ O. and H. as his solicitors, and that he never executed any mortgage or deed relating to the property claimed in the action, and that the allegation in the statement of defence in the action that he executed the deeds in the statement of defence mentioned was untrue," and the said false statements so upon oath made by the prisoner were material to the matters then in issue before the Court."

Held, upon motion in arrest of judgment, that the indictment was good, and that the averment of the materiality of the perjury assigned was sufficient.

To prove that the action was pending, the copy of the writ of summons filed under the rules of the Judicature Act, and a copy of the pleadings in the action, and the order dismissing the action, were produced.

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