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charge all the before-mentioned liabilities out of the of the parish of Stapleton, and whether the said rents and profits of the said land.

trustees were liable to be so rated. By this indenture it was provided that, after the death of Edward Colston, one-half of the vacancies

W. H. Cooke, for the respondents, contended, that amongst the boys should be filled up by the trustees, this case came within the rule which exempts buildand the other half by certain nominees and their ings used for public and charitable purposes from successors, and that, with the exception of twenty of being rated to the relief of the poor. He cited, the boys appointed by the nominees, none should be

Rex v. St. Luke's Hospital, 2 Burr. 1053 ; admitted who were not the sons of freemen of the city Regina v. Baptist Missionary Society, 10 Q. B. 884; of Bristol, or born within that city.

Regina v. Temple, 2 E. & B. 160; On the 1st of August, 1842, the Master of the Rolls,

Regina v. Licensed Victuallers' Society, 1 B. & S. on an information by the Attorney-General, made a

71. decree declaring that the premises comprised in the

Gray, contra, argued, that the exemption did not indenture of 1708 were held on the charitable pur: apply to buildings vested in trustees for charitable poses therein expressed, and that the trustees were not

purposes, and occupied either by them or by the reci. entitled to appropriate the rents or profits to their own

pients of the charity. He cited, ase. And in May, 1869, he further declared, on the

Rex v. St. Giles, York, 3 B. & Ad. 573 ; application of the trustees, that it was proper and for

Governors of Bristol Poor v. Wait, 5 A. & E. 1. the benefit of the charity that it should be removed

Cur, adv. vult. from the said house granted by Edward Colston to the premises comprised in the assessment under appeal, 4 Nov. 1863. and that it should there be carried on according to a BLACKBURN, J., now delivered the judgment of the scheme settled by him, and which was substantially Court (Wightman and Blackburn, JJ.). the same as that in force at the previous building. The question in these cases is, whether the rate in The premises in question were accordingly purchased, respect of the house and premises occupied as Colston and the school was thereupon removed to them, and School, is good. (After stating the facts, the judgthere the trustees and nominees hold monthly visita- ment proceeded :) The present schoolmaster, Mr. tions for the purposes of the school, but they carry on Rowlatt, has been rated to the relief of the poor of the all business in reference to the school and the trust parish, as occupier of that portion of the premises estates which it is not requisite to conduct in the used as his residence; and the trustees have been rated school premises, in their common hall in Bristol. The as occupiers of the portion appropriated for the boys, premises purchased consist of the house and offices, servants, school-house, and play-ground. It does not roads, play-ground, shrubberies, and about a quarter appear on the case, that the portion occupied by the of an acre of pleasure ground in front of the master's schoolmaster is in excess of what would be reasonrooms, of which he has the exclusive enjoyment. The ably appropriated to the accommodation of such a master's apartments consist of three sitting-rooms on functionary. No question is raised as to whether the the ground-floor, with three bed-rooms above, opening nature of the schoolmaster's enjoyment is sufficiently into passages respectively communicating with the exclusive to make him an occupier, or whether it is general dining-hall and with the dormitories. The merely an enjoyment as lodger or inmate under the trustees and nominees have access into all parts of trustees. The only question raised is, whether the the establishment, including the master's rooms. The fact that the premises are held for the purpose of heal master is appointed during the pleasure of the Colston's School prevents the occupation from being trustees, and receives a salary of 2101. per annum, beneficial so as to be rateable. but he receives no perquisites from the pupils, nor any We think the rates are good. It is now settled, that profit from the lands. His wife, who resides with him, where lands are occupied for public purposes, as, for hakls no appointment from the trustees, but she in instance, court-houses, prisons, and the like, so that (to fact discharges all the duties of a matron.

adopt the language of the Court, in Regina v. WallingUp to the time of the removal of the said school to ford Union, 10 A. & E. 269) the public is the occupier, the said messuage and premises they were always rated whilst those who would otherwise have been the to the relief of the poor of the said parish ; and after occupiers, are in the situation of public servants, the occupation of the premises for the purposes of the receivers, and managers, for the public benefit, withschool, the parish officers rated the said Richard out any interest of their own," there can be no rate Rowlatt in respect of his own apartments, and they imposed; for the rate must be upon the occupier, and rated the said trustees as occupiers of that portion of the occupier in such cases being the public, cannot be the buildings and premises appropriated to the boys, rated. But in the present case, it cannot be said that servants, school-house, and play.ground.

the purpose for which tliese premises are occupied is The questions for the opinion of the Court were, public in any sense of the word. They are occupied whether, upon the facts above stated, the said Richard for the purposes of a highly laudable charity, but one Rowlatt was liable to be rated to the relief of the poor of a strictly private nature. The recipients of the charity would themselves be rateable if they had an water or any other mechanical power is or shall be exclusive occupation, Rex v. Green (10 B. & C. used to propel or work the machinery in such mille 203). In Rex v. St. Luke's Hospital, which was factory, either in scutching, carding, roving, spinning, principally relied upon in the argument, the deci- piecing, twisting, winding, throwing, doubling, netsion went on the ground that no person was shown ting, making thread.” The Act of the 7 & 8 Vict., to be occupier of the premises in question. In the which was passed to amend and extend the provisions present case, there is no such difficulty, as, by the of the earlier Act, provides, by section 27, that a express terms of the settlement as well as from the register of the children employed in any factory shell nature of the thing, the trustees are to be in occu- be kept according to a form given in a schedule to tie pation of the premises for the purposes of carrying out Act. And the interpretation clause (section 73) the charity. It is true, that Lord Mansfield, in the defines "factory" as "all buildings and premises case referred to, uses language which has been under- wherein steam, water, or any other mechanical power stood to lay down the proposition that where the shall be used to work machinery employed in prepar. occupants of land are bound to apply it for the benefit ing, manufacturing, finishing, or in any process inciof a charity, they are not rateable ; but this doctrine dent to the manufacture of cotton, wool, hair, silk, has not recently been adhered to. In the last case flax, hemp, jute, or tow, either separately or mixed upon the subject, Regina v. Licensed Victuallers' together, or mixed with any other material, or any Society (1 B. & S. 71), my brother Hill, says, “I do fabric made thereof." not agree that there is no distinction between buildings The respondent is a manufacturer of cotton sewing used for charitable, and buildings used for public thread at Mansfield, near Leicester. He there doubles purposes. In the former case there is an actual occu- cotton yarns into sewing thread, which is then sent in pier ; in the latter there is not.” And my brother hanks to a building in Leicester, where he employs a Crompton referred to several recent cases in which large number of children about the winding of this that distinction had been pointed out. The Court, in thread. It is wound, by machinery worked by steam that case, acted upon that distinction, and, we think, power, through iron guides, first on to large bobbins, we ought to follow that decision. The consequence and then on to spools or reels, for the convenience of is, that in each case the order of Sessions must be retail customers, by whom it is usually bought in that quashed, and the names of the appellants restored. state. A proper register of the children employed at Order of Sessions quashed. 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 Q. B.

HAYDON, Appellant, v. TAYLOR, was contended on, his behalf before the Justices that 18 Nov. 1863.


this building was not a factory within either of the

Acts which require that such a register should be Factory-Winding" Thread-Employment of

kept. Children--3 & 4 Will. 4, c. 103—7 & 8

The magistrates, adopting that view, dismissed the Vict. c. 15.

information, but stated this case, the question for the A number of children were employed in a building

opinion of the Court being, whether the premises above where machinery worked by steam power was used

described were a "factory” within the 3 & 4 Will. 4, for the purpose of winding thread which had been c. 103, or the 7 & 8 Vict. c. 15. previously manufactured elsewhere, from skeins on to

Welsby argued, for the appellant, that this case came spools or reels, in which form it is usually sold :

within the words of the Acts, and was clearly within Held, that this building was a factorywithin the the mischief against which they were directed. [He 3 & 4 Will. 4, c. 103, and the 7 & 8 Vict. c. 15.

was then stopped by the Court.]


This was a case stated by Justices under the 20 & 21

Field, for the respondent. Vict. c. 43.

This is not a “factory" within section 1 of the The respondent was charged upon an information with 3 & 4 Will. 4, c. 103, as the "winding” there having neglected to keep a register of the children em- mentioned is the "winding” which takes place in the ployed in his factory, as required by the 3 & 4 Will. 4, c. course of the manufacture of the thread, the words 103, and the 7 & 8 Vict. c. 15. By the 18th section of there used describing in their order the processes the former Act, the Factory Inspectors are required to employed in its manufacture. The "winding” in “order a register of the children employed in any question took place after the manufacture was comfactory, and of their sex and hours of attendance, and plete, and is therefore not within that section; and for of their absence on account of sickness, to be kept in the same reason it cannot be said to be “a process such factory;" and section 1 of that Act describes the incident to the manufacture” of the thread, within factories to which the provisions of the Act are appli- the 7 & 8 Vict. c. 15, s. 73. cable, as "any cotton, woollen, worsted, hemp, flax, tow, linen, or silk mill or factory, wherein steam or COCKBURN, C.J.-I think this is a factory within both statutes. The process in question is a “winding" search necessary under this statute, dismissed the within the first, and a "process incident to the manu- offender. facture" of the thread within the second, for it brings The questions for the opinion of the Court werethe cotton into a state in which it certainly was not at 1st. Whether a search by a constable is necessary the time it was in the skein. And the case is un- to give jurisdiction to summon, and hear and deterquestionably within the mischief against which both mine under this Act. these Acts were directed.

2nd. If so, whether the foregoing facts disclosed

such a search as the Act contemplated ? WIGHTMAN and MELLOR, JJ., concurred.

The 2nd section of the 25 & 26 Vict. c. 114, on Judgment for the appellant. which this question arises, is, so far as is material to

this case, as follows :Q. B. HALL, Appellant, v. Knox, Re- “It shall be lawful for any constable or peace officer

} 18 Nov. 1863.


in any county, borough, &c., in any highway or public

place, to search any person whom he may have good Poaching-Search of Suspected PersonsJuris

cause to suspect of coming from any land where he diction of Justices—25 & 26 Vict. c. 114, 8. 2.

shall have been unlawfully in search or pursuit of It is not necessary, in order to give the Justices juris- game . . . . . and having in his possession any game diction to convict under the 25 & 26 Vict. c. 114, s. 2, unlawfully obtained, or any gun . . . . . and should that there should have been a search by a police constable there be found any game, or any such article or thing of the person charged with an offence under that section.

as aforesaid upon such person, to detain such game,

article, or thing; and such constable shall in such This was a special case, stated by Justices, under the

case apply to a Justice for a summons . ....

... and if 20 & 21 Vict. c. 43, on an appeal against their decision such person shall have obtained such game by unlaw. dismissing an information laid before them by the fully going on any land in search or pursuit of game appellant against the respondent, under the 25 & 26

... such person shall, on being convicted Vict. c. 114.

thereof, forfeit and pay any sum not exceeding 51.” The information charged that the respondent, on the 20th day of June, having been found by the appel- Kemplay, for the appellant. An actual search of lant, a constable of the county of Northumberland, in the offender is not necessary to give the magistrates a certain public place, to wit, a certain footway therein jurisdiction. While this section is an enabling one described, who then and there had good cause to empowering the constable to search, it also creates a suspect the respondent of coming from land where he substantive offence, for furnishing proof of which only, had been unlawfully in search or pursuit of game, and this power of search is given. He referred to having in his possession a certain gun which had

1 & 2 Will. 4, c. 32, s. 31. been used for unlawfully killing and taking game [sic He was then stopped. in case).

COCKBURN, C.J.-Our judgment must be for the The admitted facts were, that the constable, having appellant. It would lead to a monstrous absurdity heard the report of a gun, went along a public foot path if we were to hold otherwise ; because, in that case, in the direction of the report, when he heard a second however clear the guilt of the offender might be, he report, and, proceeding further, he heard another, would escape pnnishment if he could manage to immediately after which he saw the respondent with a

escape from the constable, and thus avoid a search. gun in his hand on a public foot path; he also saw a And it is clear that the first part of the section is only person inside the enclosed land adjoining throw a rabbit

an enabling provision empowering the constable to on the foot path close to the respondent, who then search the suspected person. changed the gun from his right to his left hand, and kas in the act of picking up the rabbit, when he WIGHTMAN, BLACKBURN, and MELLOR, JJ., saw the constable, and immediately ran away. The curred. constable seized the rabbit and followed the respon

Judgment for appellant. dent, but was not able to get hold of him. On these facts, it was contended on behalf of the

Q. B.

} BLIGH V. COTTALL. respondent, that to give jurisdiction to the Justices

19 Nov. 1863. to summon, or hear and determine a case under this

Arbitration-Submission, Verified Copy of Act, the provisions of the statute must be strictly

Practice. complied with, and that the Act must be set in motion by the constable making an actual search on the

Where a party to an arbitration desires to move to set person of the offender. On the other hand, the aside an award, but the other party is possessed of, and appellant contended that an actual search was not refuses to deliver up the original submission, an applinecessary to give the magistrates jurisdiction.

cation should be made at Chambers for a summons, The majority of the Bench considering an actual calling on the party detaining the submission to show


cause why the original should not be filed, with a view tempestuous weather, became leaky and was damaged, to its being made a rule of Court, or, if not, why a and was compelled to put into a port of safety, to wit, verified copy should not be filed.

Maranham, and that she was there found unfit to pre

ceed on her said voyage, and it became necessary to Prideaux moved for a rule calling on the defendant | abandon the voyage and sell the ship and goods, and to show cause why an award made in this action that they were accordingly sold, and the said vessel should not be set aside ; and, as a preliminary to such and guano were wholly lost, and although all conditions motion, he moved the Court, upon affidavits, to allow precedent had been performed, yet defendants had not a verified copy of the submission to be filed, with a

paid the sum insured. view to its being made a rule of Court.

The defendants pleaded “not guilty' only, under The affidavits showed that the original submission the provisions of their private Act. The policy was was in the hands of the defendant; that application in the form usually adopted by the defendants (see had been made to him to make it a rule of Court, or to hand it over to the solicitor of the plaintiff, in tained after the valuation clause, by which the ship

1 Arnould on Insurance, 18), except that it cos. order that the plaintiff might make it a rule of Court; and that the defendant had refused to comply with following special clause :-"Free from all average or

was valued at 1,5001., and the guano at 3,5001., the either request. He cited,

claim arising from jettison or leakage, unless conseRe Plows, 6 Q. B. 848,

quent upon stranding, sinking, or fire." as a precedent for the application now made.

" The value of 1. to be mutually admitted in adTue Count.- (Cockburn, C.J., Wightman, Black:- | justing and deciding all claim for loss or particular burn and Mellor, JJ.) The Master informs us that,


The action came on for trial before Martin, B., at though there are instances of applications similar to that which you now make, yet the usual and the Liverpool Spring Assizes, 1863, when a verdict more convenient course is to take out a summons

passed for the plaintiff, leave being reserved to the returnable at Chambers, calling on the orposite party fit. A rule was accordingly obtained, bat the facts

defendants to move on any points they might think to show cause why the original submission should not be filed, with a view to its being made a rule of Court,

were afterwards embodied in a special case for the or, if not, why a verified copy should not be filed. opinion of this Court. This special case raised several That is the course which you had better adopt.

questions, which were, however, with one exception,

all decided in the case of Carr v. Montifiore (see 3 X. Application referred to Chambers.

R. 80), which was argued immediately before the preNolc, -Sco

sent case. The only facts material to the point decided Chitty's Archbold's Practice, 1631 (11th ed.). in this case are as follows:-

The vessel, with the cargo, left Monte Video for

England on the 21st of October, 1857, and in the Q. B. Carr v. ROYAL EXCHANGE ASSUR}

course of her voyage she encountered very heavy 20 Nov. 1863. ANCE ASSOCIATION.

weather, and both ship and cargo suffered sea damage, Marine Policy-Average-Jettison and Leakage. which necessitated her putting into Maranham, and A valued policy effected on a ship and her cargo of order of the tribunal of commerce at Maranhain, anl

eventually the ship was condemned to be sold by guano, contained the following speciul clause :-“ Free such portions of the cargo as were not rendered useless from all arerage or claim arising from jetlison or

by sea damage were sold. leakage, unless conscquent upon stranding, sinking, or

At the trial it was admitted that the sea damage to fire" :

the ship and cargo which necessitated the putting into Held, that this clause did not altogether exempt the Maranhamn, caused an average loss of both ship and underwriters from liability for average losses, but only

cargo, but not a total loss of either. from liability in respect of an average loss arising from

The question for the opinion of the Court was, damage to the cargo by the ordinary leakage of the ship, whether, under these circumstances, the plaintiff was or in respect of such a loss arising from the necessary entitled to recover for an average loss to the cargo casting away of any portion of the cargo which had

upon the policy declared on. vecome af'octed by the action of the sea-water.

This was an action on a policy of insurance effected E. James, Q.C. (Milward and Potter with him), for by the plaintiff with the defendants upon a ship and the plaintiff. her cargo of yuano for a voyage from Monte Video to The meaning of the special clause in this policy is, the United Kingdom. The declaration, after averring that the underwriters are not to be liable for such average the due execution of the policy by the defendants, and loss as arises from damage to the cargo through the stating its terms, went on to aver that the ship, with ordinary leakage of the ship, or from the casting away the guano on board, departed from Monte Video on the of such parts of the cargo as, if carried, might be presaid voyage, and during the continuauce of the risk by judicial to the voyage. If it had been intended to

provide against any average loss, there would have DEMURRERS. — Declaration. That the defendant been no use in inserting the words which follow the broke and entered certain land of the plaintiff, called Ford · average."

or known as “ The Flat," in the parish of Burwell, in

the county of Cambridge. Brett, Q.C. (Watkin Williams and Cohen with him), for the defendants.

4th plea. That at the time of the alleged trespasses The defendants are not liable for any average loss to and public highway over and along the said land of the

there was, and of right ought to have been, a common the cargo on this policy, unless it be consequent upon plaintiff's for all persons to go and return on foot at stranding, sinking, or fire. If the construction of the such times of the year as horse-races were holden on other side be adopted, it will not give effect to these the said land, at their free will and pleasure, for tho last words.

purpose of witnessing the said races, and that the COCKBURN, C.J. - It is very doubtful what the alleged trespasses were a use by the defendant of the parties here meant by the language used. Their said highway for the purposes aforesaid. object, doubtless, was to prevent disputes in respect

5th plea. That the said close or flat in the declaraof this particular commodity, coming over in large tion mentioned, is part of certain open and unenclosed cargoes, and subject to disintegration from the action lands commonly called and known by the name of of sea water; but in endeavouring to obviate litigation,

Newmarket Heath," and that from time whereof the they have unfortunately led to it. If there had been memory of man runneth not to the contrary, horseany punctuation, the case would have been clear; and races have been, and of right ought to have been, and in the doubt which there is, how this ought be read, I still of right ought to be holden, on the said lands at think there is great force in the argument pressed on

certain reasonable times ; to wit, on certain days in us, that the words, “or claim arising from jettison or

the months of April, July, and October in every year. leakage unless consequent upon stranding, sinking, or

And the defendant further says, that at the time of fire," are, on the defendant's contention, perfectly the alleged trespasses, there was, and of right ought to superfluous, as being synonymous with the word have been, a common public highway for all persons average. A "claim arising from jettison or leakage," ou foot at the said times of the year at which the said is arrrage, and therefore the other words would be horse-races were so holden as aforesaid, at their free will bugatory, if the construction contended for by the and pleasure to go and remain for a reasonable time defendants were the true one. I think it is intended for the purpose of witnessing the said horse-races, and to be read, as though there were a comma after the to return over, along, and upon all such parts of the

average or claim;" and that the words which said lands, not being enclosures, as were commonly follow are intended to apply to both those words. used by the public for the purpose of witnessing the

said horse-races ; and the defendant says, that at the WIGHTMAN, BLACKBURN, and MELLOR, JJ., con- time of the alleged trespasses horse-races were being curred.

holden upon the said lands at one of the times aforeJudgment for plaintiff.

said, and that the alleged trespasses were a use by the

defendant of the said highway for the purpose aforesaid. Q. B. EARL OF COVENTRY and Others The 6th plea was similar in terms to the 5th, but 20 Nov. 1863. s v. WILLES.

setting up “the public and common right to go on Trespass-HighwayCustomIIorse-racing.

foot, and to remain, &c.,” in lieu of "a public highway

for all persons on foot, at the said times, &c." To a declaration in trespass, the defendant pleaded The 7th plea, after stating in the same terms as in that at the time of the alleged trespasses there was, and the previous pleas, that the close in the declaration of right ought to have been, a common and public high- was part of unenclosed lands on which horse-races Usky over and along the said, land of the plaintiffs for ought of right to be held, proceeded-And that from all persons to go and return on foot at such times of the time whereof the memory of man runneth not to the her as horse-races were holden on the said land, at contrary, there hath been, and still of right ought to their free will and pleasure, for the purpose of wit- have been, and still of right ought to be, a certain messing the said races, and that the alleged trespasses ancient and laudable custom within the said parish were a usz by the defendant of the said highway for the in which the said lands are situate, that all the subjects Jurpose aforesaid :

of the realm have been used and accustomed to enter Held, on demurrer, that this plea was bad.

and of right ought to have entered, and still of right There were other pleas to the same declaration, aver- ought to enter on foot, and to stay and remain for a riag that races had from time immemorial been held on reasonable time for the purpose of witnessing the said the land mentioned in the declaration, and setting up horse-races, at the said times of the year at which the customary rights for all the Queen's subjects to go upon said horse-races were and are accustomed to be holden the land for the purpose of witnessing these races :

as aforesaid into and upon the said lands and every part Held, that these pleas were also bad, as there cannot thereof not being enclosures as were commonly used be customary rights extending to all the Queen's subjects. by the public for witnessing the said horse-races. And



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