PRIV. Co.]

let for building purposes, or unless, with the permission in writing of the Board of Land and Works first had and obtained, for any other purpose whatsoever." It is unnecessary to consider whether the term of twenty-one years granted by the original lease has merged in the larger term, for the 11th section declares that the land so granted shall be "vested in the chairman for the purposes mentioned in the 10th section." Powers are given to the committee of the club to maintain the existing buildings on the land, and to erect such others as may, in their opinion, be expedient "for or in connection with the use of the land as a public racecourse" (section 12); also to make byelaws for the election of members to the club, and the expulsion of members, and for the management of the affairs of the club, and also for regulating all matters concerning the racecourse, "and the admission thereto and expulsion therefrom of members of the club, and the public respectively, and the charges to be paid for such admission, and for the general management of the racecourse, races, and race meetings:" (sect. 13.) It is to be observed that the Act provides for two classes of byelaws, one regulating the club, the other the racecourse. The 24th section enables the committee to prescribe by byelaws, the tolls and charges to be levied for admission to the racecourse, and the buildings thereon, and to demand and recover them from any person coming upon the land or buildings; but it contains a very material provision in favour of members of the club, viz., that "the committee may in any such byelaw provide that members of the club shall be exempt, either wholly or to such extent as such byelaw shall specify, from the payment of all or any of such tolls or charges." Provision is made that byelaws shall not be in force until a month after they have been notified to the Chief Secretary of Victoria, within which period they may be disallowed by the Governor in Council (section 14), and their publication in the Gazette: (sect. 15.) The Governor in Council may repeal bye-laws: (sect. 18.) Other sections provide that they shall be exhibited on the racecourse, and prescribe penalties for offences against them: (sects. 18-20.) Power is given to the chairman to let from year to year, or for a less time, any portions of the racecourse or the tolls demandable under the Act: (sect. 25.) Power is also given to the chairman to borrow on the credit of the rents, profits, tolls, and other revenue of the club, 15,000l., and to mortgage the revenue to secure it, and to reborrow to that amount; the money to be applied in the permanent improvement of the land for racing purposes, or in the erection and maintenance of buildings, or for rendering the land more convenient and useful for racing purposes: (sects. 26, 27, 28.) Provision is made for an annual audit of the accounts of the receipts and expenditure of the club by an auditor appointed by the Board of Land and Works; and such accounts are to be open to the inspection of the public: (38 and the following sections.) The 43rd section enacts that if the land shall, except with the consent of the Governor in Council, cease for twelve months to be used as a public racecourse, or to be applied to any other purposes, it shall revert to her Majesty for the benefit of the public: (sect. 43.) To this provision, however, there is attached a condition (material to be considered with reference to the

for

[PRIV. Co.

question to be now determined), that the Crown shall not be entitled to resume possession without previously paying to the chairman "in trust for the club the value of all buildings then upon the land, to be determined in case of dispute under the Lands Clauses Consolidation Act: (sect. 44.) It is to be noticed that the Act assumes that the club may possess real and personal property other than the land derived from the Crown, and vests such property in the chairman and his suc cessors, in trust for the club: (sect. 9.) It appears from the evidence stated by the Court of Sessions, that large sums have been expended by the club in erecting a grand stand, ranger's house, horse boxes, and other buildings, the grand stand alone having cost 14,000l. On the other hand, large profits have been derived from the race meetings, as much as 13,8871. having been received at one meeting, upon which there was a net profit of 44971. Large profits also have been made by fees for the use of the racecourse as training ground, and by the sale of the right to sell liquor, and for sheep depastured on the racecourse. The receipts, it is stated, go to the funds of the club. It is also stated that "the members of the club have certain privileges, so far as the grand stand, saddling paddock, and hill are concerned, and pay 51. a year." If this racecourse, with all the above conditions, had been held under a grant from a private owner, it could not have been disputed that it would be rateable. It is exempt only, if, being Crown property, it is used for a public purpose. In their Lordships' view, it is extremely doubtful whether it can be predicated of this land that it was, at the time and for the purpose of rating, the property of her Majesty. It was then vested in the respondent and his successors, for a term of ninety-nine years, with a modified power of sub-letting. The Crown had a reversion only, and was no longer the present and immediate owner of the land. If the proposition that the property is the Crown's be correct, it might have been affirmed with equal truth had the term been 500 years instead of ninety-nine years. By the interpretation clause of the Colonial " Local Government Act," the words "owner of any rateable property" are declared to mean "the person for the time being entitled to receive, or who, if the same were let to a tenant at a rack rent, would be entitled to receive the rack rent thereof;" and by the 290th section, unpaid rates, in default of payment by the occupier, may be recovered from such owner. It was conceded that if the respondent should let the land, the tenant, as occupier, would be liable to be rated; and it seems plain that if such tenant were in default, the rates might be recovered from the respondent as, within the meaning of the Act, the owner of the land. Undoubtedly if a grant were made by the Crown to its own nominee, as a bare trustee for exclusively public purposes, it might properly be held that the land, within the meaning of the exemption, was still the property of the Crown. But is that the character of the respondent's holding? In coming to the consideration of this question, their Lordships assent to what was sug gested by Mr. Thesiger, in his able argument, that the two questions of property and public use in some degree run into each other. It is not easy, nor is it necessary to define, generally, what is meant by the words of the exemption "the property of the Crown used for public purposes," though

PRIV. Co.]

land used for the pub ic service, or as a public park, may be mentioned as instances which would clearly fall within them. But it may well be doubted, whether a racecourse to be enjoyed by those only of the public who are able and willing to pay for admission (all others being liable to be punished as trespassers-sect. 21) can be deemed to be so used. Their Lordships, however, do not think it necessary to decide the appeal on this point, being of opinion that, in order to bring the case within the exemption, the respondent ought to show that the land was used solely for public purposes, without any beneficial occupation by individuals; and this, they are of opinion, he has failed to do. The Chief Justice of the colony took this view of the exemption in a case where the tolls of a bridge had been let for seven years to a builder, to enable him, it was said, to repay himself the cost of building it. The bridge having been found to be the property of the Queen, Stawell, C.J., said, "The only question, therefore, is whether it was used for public purposes. To be deemed so, it must be purely and solely used for such purposes. Here the public had, no doubt, a right of passage over the bridge, but only on pay. ment of a toll, so that it was not for public purposes only, it subserved a private purpose also, and was, therefore, rateable : (Hanna v. Seymour Road Board, 2 W. W. & A. B. 93.) The respon dent's trust is two-fold. He holds in trust for the club and for the purposes of the special Act. No doubt there is some indication in the Act that these purposes were of a public nature. The sanction of the governor in council required for the bye-laws, and the power given to the same authority to repeal them, the audit of the accounts by an auditor appointed by Government, and the direction that the accounts shall be open to the public, tend to show that in some sense the racecorse is what it is called, "a public racecourse; but these are not conclusive tests, since some commercial companies of a public or quasi public nature have been made subject by statutes to not dissimilar conditions. But, together with the trust for these purposes, there is the trust for the club, and it is plain that there are many special privileges and profits to which the members of the club, as such, are entitled, differing in kind from any which the general public can enjoy. Nor were these privileges conferred without consideration. The members of the club had voluntarily expended large sums of their own money in buildings and other improvements before the land became vested in them, and proposed to spend further moneys for the same purpose. It was, therefore, not unreasonable that they should have special privileges, and an interest in the profits to be derived from the racecourse. Thus the 24th clause enables the committee, in framing the byelaws prescribing the tolls and charges to be taken on admission, to exempt the members of the club wholly or in part from such tolls and charges; and, although the byelaws have not been produced, it was not denied that this exemption has been made. There is nothing in the terms of the trust (if no byelaw was made to the contrary) to prevent the members of the club haying access at all times to the racecourse and the buildings on it without payment: and they have, as stated in the case, certain privileges "so far as the grand stand, saddling paddock, and hill are concerned." It is true the members pay an

[PRIV. CO.

annual sum of 51.; but this is obviously the subscription to the club, and in respect of it they, as members of the club, obtain privileges of an exclusive character, greatly coveted and valued by those engaged in racing pursuits, which constitute a beneficial enjoyment of the land beyond that of the general public. Further, the club, as a club, has a pecuniary interest in the rents and profits of the racecourse. The Act contains no express trust for the appropriation of these profits, but a trust may be implied from the 24th section that they should be applied to the maintenance of the racecourse, and the use of it for racing purposes. No provision is made for the appropriation of the surplus profits after these purposes are fulfilled, and their Lordships see no reason to suppose that they might not be properly applied to repay the moneys which the club may have expended for the buildings placed upon the land. This would obviously be a benefit to its members derived from the profits of the land. Not only so, but by express provision of the 44th section, on the contingency of the land reverting to the Crown in case it shall cease to be used as a racecourse, the club would receive a large pecuniary benefit in being paid the value of all the buildings on the land. It is evident that the cost of these buildings might have been defrayed entirely, or in great part, out of the profits derived from the racecourse. In addition to any moneys which the club, out of its own funds, may have spent on buildings, either before or after the Act, the 15,000l. which the respondent was empowered to borrow on the credit of the tolls and rents, may have been expended for the same purpose. All buildings thus placed on the land were to be maintained out of the profits of the racecourse, and the money borrowed to erect them might have been wholly repaid from the same source; yet in the event of the

cesser of

the term, the respondent would receive in money the full value of all those buildings. The only trust declared of this money is "for the club." Its members, therefore, would be absolutely entitled to it, subject to no obligation to apply it to any public purpose whatever. The judges below do not deny that a beneficial interest may accrue to the club in this respect; but say that as a forfeiture and consequent resumption are not to be presumed, "they are not to suppose that the value of the buildings will be received by the club." Such a contingency, however, might very possibly happen. Supposing the profits to be insufficient to maintain the racecourse, it is not likely the club would keep it open at a loss, and resumption might then take place. Besides, these provisions, coupled with those already commented upon, afford tests for determining whether or not the land was vested in the respondent as a bare trustee, for a public purpose only. The respondent's counsel sought to support their contention that the use of land as a racecourse was a public purpose by referring to the 6th clause of the Victoria Land Act 1869, which enables the governor to reserve from sale Crown lands which, in his opinion, are required "for any public purpose whatsoever," or "for the recreation, convenience, or amusement of the people;" but a comparison of this clause with the exemption clause of the Local Government Act does not assist the respondent. The words "for the recreation, &c., of the people" are not found in this

In

exemption clause, and the introduction of them into the 6th clause of the Land Act, indicates that the previous words "for any public purpose may have been used in a sense which would not include objects of this nature. It is unnecessary to refer at length to the English decisions. this country the exemption of Crown property rests on the omission in the Poor Law Acts of any words to bind the Crown. In Victoria the exemption is defined and limited by express enactment. So the class of cases in England, which declared that land used for public purposes, and from which the occupiers derived no individual profit was exempt from ateability, derived their authority simply from being decisions of the courts. These decisions were swept away by the judgment of the House of Lords in the Mersey Docks v. Cameron (11 H. of L. Cas. 443), which determined in effect that, except in the case of the Crown, a liability to be rated attached upon every occupation from which benefit is derived, although the occupation was for purposes which might be deemed to be of a public nature. Even when the above-mentioned class of 'cases was considered to declare the law, Lord Campbell, in Reg. v. Harrogate (2 E. & B. 184), said, "You have to show that all the purposes to which the money was applied are public." Their Lordships will humbly advise Her Majesty that the judgment of the Supreme Court and the decision of the Court of General Sessions be reversed; and the Court of Sessions having reserved the question of the amount of the rate until the question of the liability of the respondent to be rated had been decided by the Supreme Court, they will further advise her Majesty to direct that the case be remitted to the Court of General Sessions, with a declaration that the respondent is liable to be rated for the racecourse, for the purpose of that court determining the amount of the assessment. Their Lordships think that each party should pay his own costs in the Supreme Court; and her Majesty will therefore be further advised to direct that the costs (if any) which may have been paid by the appellants to the respondent, under the rule of the Supreme Court of the 4th July 1876, be repaid by the respondent to the appellants. The respondent must also pay to the appellants the costs of the appeal to her Majesty.

Solicitor for the appellants, Thomas Randall. Solicitors for the respondent, Tamplin, Tayler, and Joseph.

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

Saturday, June 9, 1877.

(Before Lord COLERIDGE, C.J., MELLOR, J., Lush, J., DENMAN, J., and POLLOCK, B.)

REG. v. BELL AND JORDAN. Larceny-Proof of ownership of property-Official liquidator of a trading company-Winding-up. An indictment charged the prisoners with stealing brass, the property of H. The evidence was that the brass was the property of a trading company (limited), and that it was seen on the company's premises about twelve days before it was missed on the 24th March 1877; that the company was being wound-up; and that H. was the official

[C. CAS. R.

liquidator. A copy of the London Gazette, dated 19th May 1877, was produced, which stated that at a special meeting of the company duly convened, and at a subsequent special general meeting (April 25th) a resolution was passed for winding. up the company voluntarily, and that H. and S. were appointed liquidators at the special general meeting.

Held, that this evidence did not prove that the brass was the property of H. as laid in the indictment. CASE reserved for the opinion of this Court at the West Riding Yorkshire quarter sessions.

1. These prisoners were tried before me at the Spring General Quarter Sessions of the Peace, for the West Riding of the county of York, holden at Wakefield, on the second day of April 1877, on an indictment which charged John Bell with feloniously stealing, on the 23rd March 1877, 600 weight of brass, the property of Henry Hart; and Patrick Jordan with feloniously receiving, on the said last mentioned day, the same property.

2. In order to prove that the said Henry Hart was the owner of the property, the subject of the indictment, William Varney was called as a witness, and swore that he had been the secretary of the Cardigan Iron, Steel, and Wire Company (Limited) down to the time of the winding-up of the said company, as mentioned in the notice in the London Gazette set out below. That the said company carried on business at Brightside-lane, Sheffield; that the said Henry Hart was the official liquidator of the said company, and that he (witness) saw the brass mentioned in the indictment safe on the 12th March 1877, at the said place of business in Brightside-lane, and that he missed it on the 24th March 1877. He also produced a copy of the London Gazette of the 19th May 1876, in which appeared the following notice.

The Cardigan Iron, Steel, and Wire Company
(Limited).

Notice is hereby given that at a special general meeting of members of the Cardigan Iron, Steel, and Wire Company (Limited) duly convened and held at the Cutlers hall, Sheffield, in the county of York, on the 4th April 1876, and at a subsequent special general meeting of members, also duly convened and held at the Cutlershall, in Sheffield aforesaid, on the 25th April 1876, the following resolution was duly passed and confirmed.

That the agreement dated the 13th March 1876, and made between the Cardigan Iron, Steel, and Wire Company (Limited), of the one part, and Joseph Agnes and Edwin Parker and William Booth and Joseph Croft and Francis Day and James Booz Cave and Humphrey Turner and Benjamin Jones, of the other part, be and is hereby confirmed, and that the company be wound-up voluntarily in accordance with the terms of such agreement.

And at the said subsequent special general meeting the following resolution was duly passed.

(2.) That Messrs. Henry Hart and Robert Henry Sharp be and are hereby appointed liquidators of the Cardigan Iron, Steel, and Wire Company (Limited).

R. H. SHARP, Chairman. 3. The certificate of incorporation of the said company was not produced, and no other evidence, verbal, or documentary was given or tendered to prove that the said Henry Hart was the owner of the property mentioned in the indictment.

The counsel for the prisoners objected to the production of the said copy of the London Gazette as evidence of the matters stated in the above notice, inasmuch as it was not made evidence of the truth of its contents; nor was it the proper evidence of the voluntary winding-up of a limited joint stock company or of the appointment of an

official liquidator in such winding-up under the provisions of the Joint Stock Companies Act 1862 and 1867, or either of them, or any other statutory enactment; and that the London Gazette is not evidence of the truth of the contents of a notice inserted in it except by virtue of some statutory

enactment.

1. That there was no evidence to go to the jury of the existence of the Cardigan Iron, Steel, and Wire Company (Limited), no certificate of incorporation being produced.

2. That the copy of the London Gazette produced was not evidence in this case, and did not prove the existence of the said company.

3. That if there was evidence to go to the jury of the existence of the said company, that it ought to have been proved that Henry Hart was the official liquidator of the said company, that there was no evidence to go to the jury of this, and that the copy of the London Gazette produced did not prove this.

I declined to stop the case and left it to the jury, and they returned a general verdict of guilty against both prisoners, but I deferred passing sentence until the opinion of the Court for the Consideration of Crown Cases Reserved could be had upon the points submitted on behalf of the prisoners, and granted bail.

The opinion of the Court is, therefore, requested. 1. Whether the prisoners were properly convicted, or

2. Whether the conviction ought to be quashed upon the objections, and the points or any of them submitted by the counsel for the prisoners at the bar.

HENRY LEATHAM, Deputy Chairman. No counsel appeared to argue on either side. Lord COLERIDGE, C.J.-It appears to us to be clear that there was no evidence which could be fairly left to the jury to show that the brass stolen was the property of the prosecutor Hart, or that he had ever dealt with it as his property. The evidence was sufficient to show that he might have had a title to the property, but fails to show that he had ever taken possession of it. The rest of the court concurred.

Conviction quashed.

Supreme Court of Judicature.

COURT OF APPEAL.

SITTINGS AT LINCOLN'S INN. Reported by H. PRAT, Esq. Barrister-at-Law.

Tuesday, April 24, 1877.

(Before JAMES and MELLISH, L.JJ., and BAGGALLAY, J.A.)

HOLME v. GUY.

Charity-Endowed school-Dismissal of schoolmaster-Action of ejectment by governors of school against master-Consent of Charity Commissioners-" Suit or other proceeding"-Charitable Trusts Act 1853 (16 & 17 Vict. c. 137), s. 17. An action by the governors of an endowed school against the schoolmaster, whom they had dismissed, praying for an injunction to restrain him from teaching in the school, and from remaining

[CT. OF APP.

in occupation of the school house or the land belonging thereto, is not a "suit, petition, or other proceeding" within the meaning of the 17th section of the Charitable Trusts Act 1853, so as to render it demurrable on the ground of the governors having commenced the action without having previously obtained the sanction of the Charity Commissioners.

Decision of Jessel, M.R., affirmed.

THIS was an appeal from the decision of Jessel, M.R.

The hearing in the court below is reported ante (p. 306), where the facts of the case are sufficiently stated.

The Master of the Rolls held that the action, which was brought in the Chancery Division by the governors of the Ashby Endowed Grammar School against the master, whom they had dismissed, praying for an injunction to restrain him from teaching in the school, or for remaining in occupation of the school house and land belonging thereto, was not a "suit or other proceeding within the 17th section of the Charitable Trusts Act 1853, so as to render it necessary for the governors to obtain the consent of the Charity Commissioners before commencing the action.

From this decision the defendant appealed. Ince, Q.C. and Shebbeare, for the appellant.-The words of the 17th section of the Charitable Trusts Act are very wide, and require a certificate of the Board of Charity Commissioners to be obtained before the institution of any suit" for obtaining any relief, order, or direction, concerning or relating to any charity, or the estate, funds, property, or income thereof." The present action is clearly one for obtaining relief concerning a a charity within the meaning of the section. [MELLISH, L.J.-According to your construction of the section, it would take away all the power of the trustees in dealing with the charity. JAMES, L.J.-The case made by the statement of claim is, that the defendant, having been dismissed, is a mere trespasser. The action is therefore a mere action of ejectment, and it surely cannot be contended that the 17th section of the Act was intended to apply to an action of that kind.] The language of the section is imperative. It forbids the institution of any suit until the sanction of the Charity Commissioners has been obtained. They referred to

Braund v. Earl of Devon, 19 L. T. Rep. N. S. 181;
L. Rep. 3 Ch. 800;

The Attorney. General v. Hinzman, 2 Jac. & W.
270;

The Charitable Trusts Act 1860 (23 & 24 Vict. c.136), 8. 14.

Fischer, Q.C. and Cutler, for the respondents, were not called upon.

JAMES, L.J.-I do not think that this is a case in which it was requisite for the governors of the school to obtain the certificate of the commissioners before commencing the action. It is obvious, from the nature of the 17th section of the Act (16 & 17 Vict. c. 137), that it was never intended to interfere with the rights or powers of the trustees of a charity in their character of owners of property, or to interfere with their rights as masters employing servants. The object of the section in question was to prevent strangers from commencing expensive suits or other proceedings in Chancery for the purpose of raising a complaint against the manageinent of a charity, or of preventing anyone from coming

Q.B. Div.]

in, as is indicated in Sir Samuel Romilly's Act, or as in this case, for the purpose of complaining against the trustees for improperly dismissing a schoolmaster. Proceedings of this sort are not such proceedings as strangers ought to take unless the Charity Commissioners are first satisfied that they should be taken. But the object of the section was not to prevent the trustees of a charity from bringing an action of ejectment against a tenant holding over, or to prevent an action on the covenant against a tenant who will not pay his rent, or to prevent the taking of proceedings by way of distress against a defaulting tenant, or to prevent them from taking proceedings against a man who, as here, has been dismissed from his office, and yet will persist in presenting himself there, and in thrusting himself on the property of the charity—the object of the section was not to prevent the trustees of a charity from taking such proceedings as these without having first obtained the sanction of the Charity Commissioners. These are actions at law to which the Act of Parliament was not intended to apply. It may be said that there is a case to be tried, that the allegations in the statement of claim are not well-founded, and that the schoolmaster is entitled to retain his office, on the ground that he was not properly dismissed. That case cannot, however, be raised by demurrer, but must be raised by way of defence to the statement of claim. The order of the Master of the Rolls must, therefore, be affirmed, and the appeal dismissed with costs.

MELLISH L.J., and BAGGALLAY J.A. concurred.

Appeal accordingly dismissed with costs. Solicitors for the appellant, Kynaston and Gasquet.

Solicitors for the respondents, Johnston and Harrison.

The power of justices to grant or refuse an order enabling a local authority to enter lands under sect. 305 of the Public Health Act of 1875 is wholly discretionary, their decision being, therefore, final.

The plaintiff applied to the justices under sect. 305 of the Public Health Act for an order authorising them, as the local authority, to enter upon certain lands of the defendant for the purposes of the Act. The application was dismissed, but the justices stated a case under 20 & 21 Vict. c. 43, 8. 2, for the opinion of this court. Held, that the justices had no power to state a case, as this was not the determination of a complaint within 20 & 21 Vict. c. 43, s. 2. THE plaintiffs intended to construct a certain sewer under powers given to them by the Public

[Q.B. DIV.

Health Act 1875, and upon the report of their surveyor that it was necessary to enter upon defendant's land for that purpose, they served the defendant with notice to that effect; he refused to allow them to enter, whereupon they applied to the justices in petty sessions for an order authorising them "to enter into, through, or under the defendant's land, for the purpose of laying down an extension sewer for the purposes of the Public Health Act 1875. By sect. 305 of the Act, "if no sufficient cause is shown against the application, the court may make an order accordingly." The justices dismissed the application, but stated a case for the opirion of the court, as to whether they were right in law in doing so.

Wills, Q.C. (Hannen with him), for the defendant, raised the preliminary objection that the court had no jurisdiction, as the case was not within 20 & 21 Vict. c. 43, s. 2, which gives the justices power to state a case. It enacts that, "After the hearing and determination by a justice or justices of the peace of any information or com plaint which he or they have power to determine in a summary way, by any law now in force, or hereafter to be made, either party to the proceedings before the said justice or justices, may, if dissatisfied with the said determination as being erroneous in point of law, apply in writing... to the said justices to state and sign a case setting forth the grounds of such determination," &c. Here there was neither an information nor complaint. The application was merely for a licence to enter defendant's land. The justices "may" make the order-it is not "shall make the order-whether they make the order or not rests wholly on their discretion. There is no cause of "complaint" against a man because he insists upon his own rights.

Lumley, for the plaintiffs.-The functions of the justices under sect. 305 are not purely discre tionary, but they are to a certain extent judicial. They have to determine whether the entry is necessary or not for the purposes of the authority. The justices having exercised a judicial function, 20 & 21 Vict. c. 43, s. 2, does apply. Besides, there is a complaint, for the defendant obstructs by his refusal the works of the local authority. [LUSH, J.-But the defendant has not done any wrong.] The 16th section gives the sanitary authority the right of entry for the purpose of making sewers, and this right is obstructed. [LUSH, J.-If they have the right, what necessity right to enter under sect. 16, and the defendant is there for this application?] The Act gives a refuses to allow that right to be exercised; the application is then made to the justices to enforce the right.

MELLOR, J.-If that were a "complaint" the word would apply to nearly every case in which the magistrates exercise jurisdiction. We have no jurisdiction to hear this appeal.

Appeal dismissed. Solicitors for plaintiffs, Sole, Turners, and Knight.

Solicitor for the defendant, Oldman.