By this indenture it was provided that, after the death of Edward Colston, one-half of the vacancies amongst the boys should be filled up by the trustees, and the other half by certain nominees and their successors, and that, with the exception of twenty of the boys appointed by the nominees, none should be admitted who were not the sons of freemen of the city of Bristol, or born within that city.

On the 1st of August, 1842, the Master of the Rolls, on an information by the Attorney-General, made a decree declaring that the premises comprised in the

indenture of 1708 were held on the charitable purposes therein expressed, and that the trustees were not entitled to appropriate the rents or profits to their own use. And in May, 1859, he further declared, on the application of the trustees, that it was proper and for the benefit of the charity that it should be removed from the said house granted by Edward Colston to the prernises comprised in the assessment under appeal, and that it should there be carried on according to a scheme settled by him, and which was substantially the same as that in force at the previous building. The premises in question were accordingly purchased, and the school was thereupon removed to them, and there the trustees and nominees hold monthly visitations for the purposes of the school, but they carry on all business in reference to the school and the trust estates which it is not requisite to conduct in the school premises, in their common hall in Bristol. The premises purchased consist of the house and offices, roads, play-ground, shrubberies, and about a quarter of an acre of pleasure ground in front of the master's rooms, of which he has the exclusive enjoyment. The master's apartments consist of three sitting-rooms on the ground-floor, with three bed-rooms above, opening into passages respectively communicating with the general dining-hall and with the dormitories. The trustees and nominees have access into all parts of the establishment, including the master's rooms. The head master is appointed during the pleasure of the trustees, and receives a salary of 2107. per annum, but he receives no perquisites from the pupils, nor any profit from the lands. His wife, who resides with him, holds no appointment from the trustees, but she in fact discharges all the duties of a matron.

Up to the time of the removal of the said school to the said messuage and premises they were always rated to the relief of the poor of the said parish; and after the occupation of the premises for the purposes of the school, the parish officers rated the said Richard Rowlatt in respect of his own apartments, and they rated the said trustees as occupiers of that portion of the buildings and premises appropriated to the boys, servants, school-house, and play-ground.

The questions for the opinion of the Court were, whether, upon the facts above stated, the said Richard Rowlatt was liable to be rated to the relief of the poor

W. H. Cooke, for the respondents, contended, that this case came within the rule which exempts buildings used for public and charitable purposes from being rated to the relief of the poor. He cited, Rex v. St. Luke's Hospital, 2 Burr. 1053; Regina v. Baptist Missionary Society, 10 Q. B. 884; Regina v. Temple, 2 E. & B. 160;

Regina v. Licensed Victuallers' Society, 1 B. & S. 71.

Gray, contrà, argued, that the exemption did not apply to buildings vested in trustees for charitable purposes, and occupied either by them or by the recipients of the charity. He cited,

Rex v. St. Giles, York, 3 B. & Ad. 573;
Governors of Bristol Poor v. Wait, 5 A. & E. 1.
Cur. adv. vult.

4 Nov. 1863. BLACKBURN, J., now delivered the judgment of the Court (Wightman and Blackburn, JJ.).

The question in these cases is, whether the rate in respect of the house and premises occupied as Colston School, is good. [After stating the facts, the judgment proceeded] The present schoolmaster, Mr. Rowlatt, has been rated to the relief of the poor of the parish, as occupier of that portion of the premises used as his residence; and the trustees have been rated as occupiers of the portion appropriated for the boys, servants, school-house, and play-ground. It does not appear on the case, that the portion occupied by the schoolmaster is in excess of what would be reasonably appropriated to the accommodation of such a functionary. No question is raised as to whether the nature of the schoolmaster's enjoyment is sufficiently exclusive to make him an occupier, or whether it is merely an enjoyment as lodger or inmate under the trustees. The only question raised is, whether the fact that the premises are held for the purpose of Colston's School prevents the occupation from being beneficial so as to be rateable.

We think the rates are good. It is now settled, that where lands are occupied for public purposes, as, for instance, court-houses, prisons, and the like, so that (to adopt the language of the Court, in Regina v. Wallingford Union, 10 A. & E. 269) the public is the occupier, "whilst those who would otherwise have been the occupiers, are in the situation of public servants, receivers, and managers, for the public benefit, without any interest of their own," there can be no rate imposed; for the rate must be upon the occupier, and the occupier in such cases being the public, cannot be rated. But in the present case, it cannot be said that the purpose for which these premises are occupied is public in any sense of the word. They are occupied for the purposes of a highly laudable charity, but one of a strictly private nature. The recipients of the

charity would themselves be rateable if they had an exclusive occupation, Rex v. Green (10 B. & C. 203). In Rex v. St. Luke's Hospital, which was principally relied upon in the argument, the decision went on the ground that no person was shown to be occupier of the premises in question. In the present case, there is no such difficulty, as, by the express terms of the settlement as well as from the nature of the thing, the trustees are to be in occupation of the premises for the purposes of carrying out the charity. It is true, that Lord Mansfield, in the case referred to, uses language which has been understood to lay down the proposition that where the occupants of land are bound to apply it for the benefit of a charity, they are not rateable; but this doctrine has not recently been adhered to. In the last case upon the subject, Regina v. Licensed Victuallers' Society (1 B. & S. 71), my brother Hill, says, "I do not agree that there is no distinction between buildings used for charitable, and buildings used for public purposes. In the former case there is an actual occupier; in the latter there is not." And my brother Crompton referred to several recent cases in which that distinction had been pointed out. The Court, in that case, acted upon that distinction, and, we think, we ought to follow that decision. The consequence is, that in each case the order of Sessions must be quashed, and the names of the appellants restored. Order of Sessions quashed.

Q. B. 18 Nov. 1863.

HAYDON, Appellant, v. TAYLOR, Respondent. Factory-"Winding" Thread-Employment of Children-3 & 4 Will. 4, c. 103-7 & 8 Vict. c. 15.

▲ number of children were employed in a building where machinery worked by steam power was used for the purpose of winding thread which had been previously manufactured elsewhere, from skeins on to spools or reels, in which form it is usually sold :

water or any other mechanical power is or shall be used to propel or work the machinery in such mill r factory, either in scutching, carding, roving, spinning, piecing, twisting, winding, throwing, doubling, netting, making thread." The Act of the 7 & 8 Vict., which was passed to amend and extend the provisions of the earlier Act, provides, by section 27, that a register of the children employed in any factory shall be kept according to a form given in a schedule to the Act. And the interpretation clause (section 73) defines "factory" as "all buildings and premises wherein steam, water, or any other mechanical power shall be used to work machinery employed in prepar ing, manufacturing, finishing, or in any process incident to the manufacture of cotton, wool, hair, silk, flax, hemp, jute, or tow, either separately or mixed together, or mixed with any other material, or any fabric made thereof.”

The respondent is a manufacturer of cotton sewing thread at Mansfield, near Leicester. He there doubles cotton yarns into sewing thread, which is then sent in hanks to a building in Leicester, where he employs a large number of children about the winding of this thread. It is wound, by machinery worked by steam power, through iron guides, first on to large bobbins, and then on to spools or reels, for the convenience of retail customers, by whom it is usually bought in that state. A proper register of the children employed at the manufactory at Mansfield was kept by the respon dent, but he kept no such register at the building in Leicester, where this winding was carried on; and it was contended on his behalf before the Justices that this building was not a factory within either of the Acts which require that such a register should be kept.

The magistrates, adopting that view, dismissed the information, but stated this case, the question for the described were a "factory" within the 3 & 4 Will. 4, opinion of the Court being, whether the premises above c. 103, or the 7 & 8 Vict. c. 15.

This was a case stated by Justices under the 20 & 21 Vict. c. 43.

The respondent was charged upon an information with having neglected to keep a register of the children employed in his factory, as required by the 3 & 4 Will. 4, c. 103, and the 7 & 8 Vict. c. 15. By the 18th section of the former Act, the Factory Inspectors are required to "order a register of the children employed in any factory, and of their sex and hours of attendance, and of their absence on account of sickness, to be kept in such factory;" and section 1 of that Act describes the factories to which the provisions of the Act are applicable, as "any cotton, woollen, worsted, hemp, flax, tow, linen, or silk mill or factory, wherein steam or

was then stopped by the Court.]

Field, for the respondent.

This is not a "factory" within section 1 of the 3 & 4 Will. 4, c. 103, as the "winding" there mentioned is the "winding" which takes place in the course of the manufacture of the thread, the words there used describing in their order the processes employed in its manufacture. The "winding" in question took place after the manufacture was com plete, and is therefore not within that section; and for the same reason it cannot be said to be "a process incident to the manufacture" of the thread, within the 7 & 8 Vict. c. 15, s. 73.

COCKBURN, C.J.-I think this is a factory within

66

offender.

WIGHTMAN and MELLOR, JJ., concurred.
Judgment for the appellant.

Q. B.

18 Nov. 1863.

HALL, Appellant, v. KNOX, Respondent.

The questions for the opinion of the Court were— 1st. Whether a search by a constable is necessary to give jurisdiction to summon, and hear and determine under this Act.

2nd. If so, whether the foregoing facts disclosed such a search as the Act contemplated?

The 2nd section of the 25 & 26 Vict. c. 114, on

which this question arises, is, so far as is material to this case, as follows:

"It shall be lawful for any constable or peace officer in any county, borough, &c., in any highway or public place, to search any person whom he may have good cause to suspect of coming from any land where he shall have been unlawfully in search or pursuit of

unlawfully obtained, or any gun

and should

The information charged that the respondent, on the 20th day of June, having been found by the appellant, a constable of the county of Northumberland, in a certain public place, to wit, a certain footway therein described, who then and there had good cause to suspect the respondent of coming from land where he had been unlawfully in search or pursuit of game, and having in his possession a certain gun which had been used for unlawfully killing and taking game [sic in case].

The admitted facts were, that the constable, having heard the report of a gun, went along a public foot path in the direction of the report, when he heard a second report, and, proceeding further, he heard another, immediately after which he saw the respondent with a gun in his hand on a public foot path; he also saw a person inside the enclosed land adjoining throw a rabbit on the foot path close to the respondent, who then changed the gun from his right to his left hand, and was in the act of picking up the rabbit, when he saw the constable, and immediately ran away. The constable seized the rabbit and followed the respondent, but was not able to get hold of him.

On these facts, it was contended on behalf of the respondent, that to give jurisdiction to the Justices to summon, or hear and determine a case under this Act, the provisions of the statute must be strictly complied with, and that the Act must be set in motion by the constable making an actual search on the person of the offender. On the other hand, the appellant contended that an actual search was not necessary to give the magistrates jurisdiction.

The majority of the Bench considering an actual

there be found any game, or any such article or thing as aforesaid upon such person, to detain such game, article, or thing; and such constable shall in such case apply to a Justice for a summons. .... and if such person shall have obtained such game by unlawfully going on any land in search or pursuit of game such person shall, on being convicted thereof, forfeit and pay any sum not exceeding 5l."

Kemplay, for the appellant. An actual search of the offender is not necessary to give the magistrates jurisdiction. While this section is an enabling one empowering the constable to search, it also creates a substantive offence, for furnishing proof of which only, this power of search is given. He referred to 1 & 2 Will. 4, c. 32, s. 31. He was then stopped.

COCKBURN, C.J.-Our judgment must be for the appellant. It would lead to a monstrous absurdity if we were to hold otherwise; because, in that case, however clear the guilt of the offender might be, he would escape pnnishment if he could manage to escape from the constable, and thus avoid a search. And it is clear that the first part of the section is only an enabling provision empowering the constable to search the suspected person.

WIGHTMAN, BLACKBURN, and MELLOR, JJ., curred.

Q. B. 19 Nov. 1863.

con

Judgment for appellant.

BLIGH v. COTTALL.

Arbitration-Submission, Verified Copy of―

Practice.

Where a party to an arbitration desires to move to set aside an award, but the other party is possessed of, and refuses to deliver up the original submission, an application should be made at Chambers for a summons, calling on the party detaining the submission to show