C. CAS. R.] REG. v. COLLINS AND OTHERS. 65 [C. CAS. R. if there was not any chattel to be stolen, putting the hand in the pocket could not be considered as a step towards the completion of the offence. but as such cases are of frequent occurrence I I declined to stop the case upon this objection, thought it right that the point should be determined by the authority of the Court of Criminal Appeal. question upon which the opinion of your Lordships The jury found all the prisoners guilty, and the is respectfully requested is, whether under the circumstances the verdict is sustainable in point of law. The prisoners are in custody awaiting sentence. this was a larceny, the conviction may be sustained | not, and as larceny was the stealing of some chattel, under the 24 & 25 Vict. c. 96, s. 88. [CROMPTON, J. -The enactment does not say that if any larceny is proved he is not to be acquitted of the misdemeanor; but, that if you prove the misdemeanor as it is laid in the indictment, the prisoner is not to be acquitted because the case amounts to a larceny.] Secondly, as to the false pretences, it is submitted that, although the prisoner subsequently altered his story to meet the prosecutor's misconception that he was dealing with Mr. Harding's servant, nevertheless he also made the false representation that he was Mr. Hardman's servant, and the jury must be taken to have found that that led the prosecutor to part with the horse; and if so, the conviction may be supported. [COCKBURN, C. J.-There was plenty of false pretences, if rightly charged in the indictment. The false pretence which operated on the prosecutor's mind, and led him to part with his property, must be properly laid and proved. It is plain that the prosecutor confounded the name of Harding with that of Hardman, used by the prisoner, who, seeing that, adapted his story to meet that, and it was the representation that he was Mr. Harding's servant which led the prosecutor to part with his horse. But, unfortunately, the indictment makes the tence that he was Mr. Hardman's servant the inducing cause of the prosecutor's parting with the horse. BRAMWELL, B.-On this indictment, if the averments were true, the seller would have a right to look to Mr. Hardman as liable for the price, whereas he intended to sell the horse to Mr. Harding, and to hold him liable.] Supposing the indictment not proved, the prisoner may be convicted of larceny. [MARTIN, B.-No. My brother Crompton has given the true reading of the section. CROMPTON, J.-The prisoner is to be convicted of the misdemeanor, not of larceny.] pre WILLIAMS, J.-I feel great difficulty in concurring with the judgment of the court. Conviction quashed. REG. v. COLLINS AND OTHERS. Attempt to commit larceny. In order to convict of an attempt to commit larceny, it It should be left to the jury to say whether there was Case reserved for the opinion of this Court by the Deputy-Assistant Judge at the Middlesex Sessions. The prisoners were tried before me at the Middlesex Sessions on an indictment which stated that they unlawfully did attempt to commit a certain felony; that is to say, that they did then put and place one of the hands of each of them into the gown pocket of a certain woman, whose name is to the jurors unknown, with intent the property of the said woman in the said gown pocket then being from the person of the said woman to steal, &c. The evidence showed clearly that one of the prisoners put his hand into the gown pocket of a lady, and that the others were all concerned in the transaction. The witness who proved the case said on cross-examination that he asked the lady if she had lost anything, and she said "No." For the defence it was contended that to put a hand into an empty pocket was not an attempt to commit a felony, and that as it was not proved affirmatively that there was any property in the pocket at the time, it must be taken that there was JOSEPH PAYNE, Deputy-Assistant Judge. It is not an indictable offence to put your hand Poland for the prisoners.-The conviction is bad. into an empty pocket with intent to steal, but an offence punishable only under the Vagrant Act. It is not alleged in the indictment that there was any property in the pocket. This is very like the case of Reg. v. M'Pherson, 1 Dears. & B. 197, where it was held that a man who was charged with breaking and entering a dwelling-house and stealing certain specified goods could not be convicted unless withstanding other goods were there. [COCKBURN, the specified goods were in the house, notC. J.-That case proceeds on the ground that you must prove the property as laid.] In the course of the argument Bramwell, B. put this very case, and said: "The argument that a man putting his hand into an empty pocket might be convicted of attempting to steal appeared to me at first plausible; but supposing a man, believing a block of wood to be a man who was his deadly enemy, struck it a blow intending to murder, could he be convicted of attempting to murder the man he took it to be? So in Rex v. Scudder, 3 C. & P. 605, it was held that drug to a woman to procure abortion, if it appear there could not be a conviction for administering a that the woman was not with child at all. That case was before the Consolidation Act, 24 & 25 Vict. c. 100, s. 58. [BRAMWELL, B.-You may put this case. Suppose a man takes away an umbrella from a stand with intent to steal it, believing it not to be convicted of attempting to steal?] It is submitted his own, but it turns out to be his own, could he be that he could not. argument on the other side consists in assuming Metcalfe for the prosecution.-The fallacy in the that it is necessary to prove anything more than an attempt to steal. The intent to steal it is conceded is not sufficient, but any act done to carry out the intent, as putting the hand into the pocket, will do. [CROMPTON, J.-Suppose a man were to tion to rob a particular person, whom he expected go down a lane armed with a pistol, with the intenhappen to come, would that be an attempt to rob would pass that way, and the person does not the person ?] conviction cannot be sustained, and in so holding it COCKBURN, C. J.-We are all of opinion that this is necessary to observe that the judgment proceeds was anything in the pocket of the woman which on the assumption that the question, whether there appear to have been left to the jury. The case was might have been the subject of larceny, does not tion, whether, supposing a person to put his hand reserved for the opinion of this court on the quesinto the pocket of another for the purpose of larceny, there being at the time nothing in the pocket, that is an attempt to commit larceny. We there was anything in the pocket of the woman are far from saying that, if the question, whether had been left to the jury, there was not evidence on which they might have found that there was, and in which case the conviction would have been affirmed. C. CAS. R.] REG. v. JOHN GLOVER. But, assuming that there was nothing in the pocket of the woman, the charge of attempting to commit larceny cannot be sustained. This case, we think, is governed by that of Reg. v. MPherson, and that an attempt to commit a felony can only be made out when, if no interruption had taken place, the attempt could have been carried out successfully, and the felony completed of the attempt to commit which the party is charged. In this case, if there was nothing in the pocket of the prosecutrix in our opinion the attempt to commit larceny cannot be established. It may be illustrated by the case of a person going into a room, the door of which he finds open, for the purpose of stealing whatever property he may find there, but finding nothing in the room, in that case no larceny could be committed, and therefore no attempt to commit larceny could be committed. In the absence, therefore, of any finding of the jury in this case, either directly or inferentially by their verdict, that there was any property in the pocket of the prosecutrix, we think that this conviction must be quashed. Conviction quashed. REG. v. JOHN Glover. Embezzlement-Relation of master and servant-County Court bailiff. A County Court bailiff was indicted for embezzling moneys of the prosecutor, the high bailiff. The moneys embezzled were received on levies under County Court processes : Held, that the charge could not be sustained, as the relation of master and servant did not exist between the bailiff and high bailiff, nor was the bailiff bound to pay over the moneys to him. Case reserved for the opinion of this Court at the Oxfordshire General Quarter Sessions. [C. CAS. R. processes issued out of the court, and that he neglected to pay over the amounts to the registrar of the court, but embezzled them, and that consequently the prosecutor was held responsible to the County Court. By virtue of the above Act, s. 31, the high bailiff may at his pleasure dismiss a bailiff; and the prosecutor had in this case (subsequently to the appropriation of the three sums of money) dismissed the prisoner; and every bailiff so appointed may also be suspended or dismissed by the judge. And by sect. 33, the high bailiff is entitled to receive all fees and sums of money allowed by the Act in the name of fees payable to the bailiff, out of which the high bailiff is to provide for the execution of the duties for which such fees are allowed, and for the payment of the assistant bailiffs according to a scale, and the high bailiff is to be responsible for all the acts and defaults of himself and of the bailiffs appointed to assist him, in like manner as the sheriff of any county in England is responsible for the acts and defaults of himself and his officers. Rule 31 of the Statutory Rules of Practice of the court is as follows: Every bailiff levying or receiving any money by virtue of any process issuing out of the court of which he is bailiff shall, within twenty-four hours from the receipt thereof, pay over the same to the registrar of such court, and shall file such process and retain the same in his custody. acts of the prisoner, and for all moneys not paid Although the prosecutor was answerable for the into court by him, yet, as the sums in question ought, under the above rule, to have been paid to the registrar of the court, the question arose whether the prisoner was in law the servant of the prosecutor as laid in the indictment. The statute 9 & 10 Vict. c. 95, s. 116, provides: That if any bailiff of the court shall be charged with not duly paying or accounting for any money levied by him, under the authority of this Act, it shall be lawful for the judge to inquire into such matter in a summary way, and for that purpose to summon and enforce the attendance of all necessary parties, in the like manner as attendance of witnesses in any case may be enforced, and to make such order thereupon for the payment of such damages and costs, as he shall think just, and also if he shall think fit to impose such fine upon the bailiff, not exceeding 101, for each offence, as he shall deem adequate, and in default of payment of any money so ordered to be paid, payment of the same may be enforced by such ways and means as are herein provided for enforcing a judgment recovered in the said court. The indictment contained three counts: The first count charged that, on the 3rd Sept. 1863, the prisoner being then employed as servant to the prosecutor, did, by virtue of such his employ-repayment of any money so levied as aforesaid, and for the ment, then and whilst he was so employed, receive and take into his possession certain money, to the amount of 12s. 3d., for and in the name and on account of the prosecutor his master, and did then fraudulently embezzle the said money; and that the prisoner did feloniously steal, take and carry away the said money, the property of the prosecutor, from him his master as aforesaid, against the form of the statute, &c. HUGH HAMERSLEY, Chairman. No counsel appeared for the prisoner. Sleigh for the prosecution.-The conviction is The second count charged that the prisoner afterwards, and within six calendar months, &c., to wit, good. The relation of master and servant existed in this case. The high bailiff appoints the bailiff, on the 1st Oct. 1863, being the servant to the proand has power to dismiss him: (9 & 10 Vict. c. 95, secutor, embezzled 11. 1s. 2d. (as in the first count). s. 31.) The power given to the judge of the County And the third count charged a similar embezzle-Court by sect. 116 of the 9 & 10 Vict. c. 95, to ment of 31. 6s. 9d. on the 11th Oct. 1863. The prisoner pleaded to the indictment generally, not guilty. On the trial the jury found him guilty; but the justices, before whom the case was tried, reserved for the consideration of the Court of Criminal Appeal the following question of law, which arose on the trial, and judgment was postponed and the prisoner discharged on recognisance of bail to appear and receive judgment. Question: Whether the prisoner was the servant of the prosecutor within the provisions of the statute 24 & 25 Vict. c. 96, ss. 68 and 71? The evidence was as follows:-That the prosecutor being high bailiff of the Witney County Court, appointed the prisoner (by the allowance of the judge of the court, and under the provisions of the statute 9 & 10 Vict. c. 95, s. 31), to be one of the bailiffs to assist the high bailiff. That the prisoner in his official capacity received the three sums mentioned in the indictment, being the amounts of three levies received by virtue of inquire into the bailiff's conduct and fine him has reference to defaults arising out of mere negligence and carelessness and not to a case of felony. A servant is a person who is employed by another, and bound to obey the orders of another. [COCKBURN, CJ.-The bailiff is bound to obey the orders of the court. CROMPTON, J.-If the high bailiff were to tell the bailiff not to pay over moneys levied by him to the court, and he were to obey, the bailiff might be punished by the court for not paying them over.] It is submitted that the bailiff is the servant of the high bailiff, although he is also required by the County Court rules to pay over moneys levied or received under process to the registrar. COCKBURN, C.J.-Even if it were made out, which I think it is not, that the bailiff is the servant of the high bailiff, he was not bound to pay over these moneys to his master. But as he was not the servant of the high bailiff, and this was not the money Q. B.] LATHAM AND OTHERS V. THE QUEEN. [Q. B. of the high bailiff, the conviction must be quashed. | tions to commit any offence which such justices or recorder He was anything but the servant of the high bailiff, respectively have or has jurisdiction to try when committed by and by the statutory rule of practice he was bound to pay the moneys to the registrar. CROMPTON, J.-Even in the case of a bound bailiff to the sheriff, the bailiff is not answerable criminally; I never heard of a prosecution against a bound bailiff in a case like this. The bailiff is the officer of the court, and he was not bound to pay these moneys to the high bailiff. The rest of the Court concurring, Conviction quashed. COURT OF QUEEN'S BENCH. Reported by JOHN THOMPSON and T. W. SAUNDERS, Esqrs, Barristers-at-Law. Saturday, June 4, 1864. LATHAM AND OTHERS . THE QUEEN (in error). Indictment-Error-Two counts and judgment on one only-Quarter sessions—Jurisdiction-Conspiracy. The plts. in error were indicted at the quarter sessions upon an indictment containing two counts, one for obtaining money by false pretences, and the other for a conspiracy, by divers false pretences, to defraud the prosecutor of his money. They were found guilty upon the second count only, and upon a writ of error the record, though it set out the finding and judgment upon such second count, was wholly silent as to any finding or judgment upon the first count: Held, that the finding and judgment upon such second count was good. By the 5&6 Vict. c. 38, s. 1, the quarter sessions are prohibited from trying any persons for conspiracies, except conspiracies to commit any offence which the sessions have jurisdiction to try when committed by one person: Held, that a count charging the defts. with conspiring, by divers false pretences, against the form of the statute in such case made and provided, the said A. B. of his money to defraud, sufficiently showed a conspiracy within the jurisdiction of the quarter sessions. This was a writ of error upon a conviction of the defts. upon an indictment. It appeared that the defts. were indicted at the Lancashire Quarter Sessions holden at Salford, and the indictment contained two counts: first, a count for obtaining money by false pretences; secondly, a count for a conspiracy to obtain such money, the material part of such second count being as follows: That the said Benjamin Latham, &c., being evil disposed persons, and contriving and intending to defraud the said Richard Bealby of his money, unlawfully, knowingly and designedly did amongst themselves combine, conspire, confederate and agree together, by divers false pretences, against the form of the statute in that case made and provided, the said Richard Bealby of his money to defraud, against the form of the statute in that case made and provided. At the trial the jury found the defts. guilty upon the second count only, and they were accordingly sentenced. The record, as made up and returned into this court, contained the proper averment as to the conviction of the defts. upon such second count, but was quite silent as to the result of the first count, containing no averment of acquittal upon such one person. Cottingham now appeared for the defts. (plts. in error), and contended, first, that the record was bad, inasmuch as the defts., being convicted alone upon the second count, it takes no notice of their acquittal upon the first count, for that being convicted only upon the second count, they were entitled to have an entry of acquittal upon such first count, and that by such omission, if again indicted for the offence contained in such first count, they would be unable to plead either autrefois acquit or autrefois convict: R. v. Hayes, 2 Ld. Raym. 1518; O'Connell v. The Queen (in error), 11 Cl. & Fin. 295-6 (Parke, B.) Secondly, that as the quarter sessions have only a limited jurisdiction in cases of conspiracy, it should appear upon the record that the conspiracy was one which they had a right to try, and that in the present case it did not so appear, for that the conspiracy set out in the record of the indictment might be to do some act not indictable at quarter sessions, such as to defraud as a bankrupt, and that therefore the nature of the fraud ought to have been set out, that the court might see that there was jurisdiction: (Reg. v. Jones, 1 Dear.) Thirdly, that it was not averred on the record that the defts. were present when judgment was pronounced, actual presence being requisite, though the case one of misdemeanor, corporal punishment being awarded: 1 Chit. Crim. Law, 696, 720. was Campbell Foster, contra (who was directed to confine his arguments to the first objection only), argued that, there being a good count upon which judgment was passed, it was immaterial that there were other counts which were passed over in silence, for that separate counts in an indictment stand upon the footing of separate indictments, and it is no objection that no judgment is given upon one, if a right judgment is given upon others, and that at any future time the omission can be supplied if necessary: Peak v. Oldham, Cowp.; O'Connell v. The Queen, Tindall's judgment, 255; BLACKBURN, J. (a)—I think that in this case the Crown is entitled to judgment. There were in this indictment two counts, and the jury ought regularly to have pronounced a verdict on both. No doubt, in fact, the verdict was one of guilty on the second count and of not guilty upon the first count; and it is by a misprision of the clerk who drew up the record that the first count is untouched. If in due time an application to amend had been made, it would have been set right, and even now, if any inconvenience should arise to the prisoners with reference to future proceedings, it may be amended. At present I cannot speculate upon that. Then comes the question as to the effect of the omission upon the finding of the jury. As to that, where there is an issue which the jury have to try, and they imperfectly dispose of it, the court will award a venire de novo. We need not, however, inquire into that, for here there has been no imperfect finding. But when there are two counts in an indictment, they are to all intents and purposes two separate indictments, and the finding upon them would be as though they were separate indictments. An imperfect finding upon a count might be a ground for a venire de novo; but if there is (a) Cockburn, C. J. and Crompton, J. were sitting in the Court for Crown Cases Reserved. Q. B.] REG. . THE COMMISSIONERS OF METROPOLITAN POLICE. a good finding upon a good count, why may a deft. not be convicted upon that? There is nothing that I can see in principle against it. It is said that the question is concluded by authority, and one case is cited from Lord Raymond. [His Lordship here referred to the case, and continued:] But I think that case has no bearing upon the present one. An indictment has no analogy to a civil claim where the claim is entire, whereas in a criminal case each count is in effect a separate indictment. In O'Connell v. The Queen, Lord Wensleydale, then Mr. Baron Parke, shows that this was his view in his judgment at page 296. I certainly cannot see why the judgment upon one count should not be supported merely because there is no judgment upon another. The second question is, as to whether or not the second count (for the conspiracy) sets out an offence within the jurisdiction of the court of quarter sessions? It is a count for a conspiracy: [His Lordship here read the count.] The object of the conspiracy is stated to be to defraud the prosecutor of his money, and the objection is, that inasmuch as the quarter sessions have only a limited jurisdiction in cases of conspiracy, the count should set out the facts of the fraud so as to show whether the offence came within its jurisdiction. The count alleges that the defts. conspired, by divers false pretences, to defraud Richard Bealey of his money, against the form of the statute. Now, in conspiracies, it is not required that the object of the conspiracy should be set out so precisely as though the indictment were for the substantive offence; all that is required is to show that there was a conspiracy to defraud, and before finding the bill the grand jury must be satisfied that the conspiracy was to defraud the prosecutor of his money by false pretences. There were other technical objections taken, such as not setting out the false pretences, and then there being no allegation that the defts. were present when judgment was passed; but there is really nothing in them, and the case of Sydserff v. The Queen, 11 Q. B. 245, is in point. There must therefore be judgment for the Crown. SHEE, J.-I am of the same opinion. It appears there were two counts in the indictment, and that judgment is entered only upon one of them. Now the two counts are in principle the same as two indictments, and the record shows that the defts. were tried and convicted upon one count. It is said that the record is bad, because it does not appear that any judgment was given upon the first count. It certainly does appear that no sentence was passed upon it, and although it does not say that the defts. were acquitted, it is rather an imperfect statement than a statement that prejudices, and if hereafter there is any difficulty it may easily be set right. Upon the second point the objection was, that inasmuch as it does not appear upon the face of the second count that the offence which the defts. conspired to commit was one over which the quarter sessions had jurisdiction it was bad, for that the sessions could only try a conspiracy to do an act which would have been triable at sessions. Now it is not necessary that the offence in a charge of conspiracy should be set forth with the same particularity as would be required in stating the substantive offence. Here the gist of the offence is the conspiracy, and I think the count is sufficient. Judgment for the Crown. Thursday, June 9, 1864. [Q. B. REG. V. THE COMMISSIONERS OF METROPOLITAN Hackney and Stage Carriage Act-Omnibus conductors” licences-Suspension for misconduct. The Commissioners of Metropolitan Police have power under the 6 & 7 Vict. c. 86 to suspend the issuing of renewals of licences to omnibus drivers and conductors for a period, for misconduct during the preceding year. This was an application for a mandamus to the Commissioners of the Metropolitan Police to grant a licence to a conductor of an omnibus under the 6 & 7 Vict. c. 86 (an Act for regulating hackney and stage carriages in and near London). The applicant had been a licensed omnibus con-ductor for eight years, and his licence expired on the 1st June last. He had made the usual application for the renewal of his licence, and produced to the Commissioners of Police the certificate of good behaviour required by sect. 8 of the statute to be produced to the registrar (the Commissioners of Police being substituted for the registrar by a later sta tute). The applicant was informed at the office of the commissioners that his licence was suspended for a month and would not be granted until July 1. The ground of suspension was that the applicant had been summoned three times, and fined on each occasion. The following are the sections of the Act referred to in the argument: Sect. 8: That it shall be lawful for the registrar (of metropolitan public carriages) to grant a licence to act as driver of hackney carriages, or as driver or as conductor of metropolitan stage carriages, or as waterman (as the case may be) to any person who shall produce such a certificate as shall satisfy the regis trar of his good behaviour and fitness for such situation respectively. Provided always that no person shall be licensed ás such driver as aforesaid who is under sixteen years of age, and in every such licence shall be specifled the number of such licence and the proper name and surname and place of abode, and age, and a description of the person to whom such licence shall be granted, and in the case of a waterman of the standing or place at which he shall be thereby authorised to act as waterman and the nature of his duties, and every such licence shall bear date on the day on which the same shall be granted in the month of May in any year, then to continue in force until and upon the first day of June in the year next following that in which the same shall be granted, except in either case the same shall be sooner revoked, and except the time (if any) during which any such licence shall be suspended; and on every licence of a driver or conductor the registrar shall cause proper columns to be prepared in which every proprietor employing the driver or conductor named in such licence shall enter his own name and address and the days on which such driver or conductor shall enter and shall quit his service respectively, and in case any of the particulars ct shall be erased or defaced every such licence shall be entered or indorsed upon any licence in pursuance of this wholly void and of none effect; and the said registrar shall, at the time of granting any licence, deliver to the driver, conductor, or waterman, to whom the same shall be granted, an abstract of the laws in force relating to such driver, conductor, or waterman, and of the penalties to which he is liable for any misconduct, and also a metal ticket upon which there hall be marked or engraved his office or employment, and a number corresponding with the number shall be inserted in such licence. Sect. 14: That before any such licence shall be granted a requisition for the same, in such form as the registrar shall from time to time appoint for that purpose, and accompanied with such certificate as hereinbefore is required, shall be made and signed by the person by whom such licence shall be required; and in every such requisition all particulars as the registrar shall require shall be truly set forth, and every person applying for, or attempting to procure any such licence, who shall make or cause to be made any false representation in regard to any of the said particulars, or who shall endeavour to obtain a licence by any forged recommendations, or who shall not truly answer all questions which shall be demanded of him in relation to such application for a licence; and also every person to whom reference shall be made who shall, in regard to such application, wilfully and knowingly make any misrepresentation, shall forfeit for every such offence the sum of five pounds, and it shall be lawful for the registrar to Q. B.] REG. v. THE DARLINGTON LOCAL BOARD OF HEALTH. proceed for recovering of such penalty before any magistrate, at any time within one calendar month after the commission of the offence, or during the currency of the licence so improperly obtained. Sect. 25: That it shall be lawful for any justice of the peace before whom any driver, conductor, or waterman shall be convicted of any offence, whether under this Act, or any other Act, if such justice in his discretion shall think fit, to revoke the licence of such driver, conductor, or waterman, and also any other licence which he shall hold under the provisions of this Act, or to suspend the same for such time as the justice shall think proper, and for that purpose to require the proprietor, driver, conductor, or waterman in whose possession such licence, and the ticket thereunto belonging, shall then be to deliver up the same; and every proprietor, driver, conductor, or waterman, who being so required shall refuse or neglect to deliver up such licence, and any such ticket or either of them shall forfeit so often as he shall be so required, and refuse or neglect as aforesaid, the sum of 5., and the justice shall forthwith send such licence and ticket to the registrar, who shall cancel such licence if it has been revoked by the justice, or if it has been suspended, shall, at the end of the time for which it shall have been suspended, redeliver such licence with the ticket to the person to whom it was granted E. James, Q. C., in support of the application.Sect. 8 is imperative on the commissioners to grant a licence on the production of the certificate of good behaviour. If the commissioners are satisfied with the certificate they are bound to grant the licence. No further questions have been asked under sect. 14, and what the commissioners have done is in -effect to inflict a punishment upon the applicant, which they have no power to do. The justices, under sect. 25, are the proper parties to do that. [MELLOR, J.-That section relates to misconduct arising after the granting of the licence and during its currency.] The consequence of suspending licences in this way is that this class of persons are thrown out of employ and subjected to a fresh punishment not specified by the statute. COCKBURN, C. J.-I think this court ought not to interfere. The jurisdiction exercised by the Commissioners of Police is essential to the proper conduct of these men. It is quite clear that the commissioners are not bound to be satisfied with the mere production of a certificate of good behaviour, but they are entitled to see that the behaviour has been proper. That appears to be so from the provisions of sect. 14. Therefore when it was disclosed that the applicant had been three times fined, it was competent to the commissioners to say that they would not grant him a licence, notwithstanding sect. 8. If then they could refuse the licence altogether, it was perfectly competent for them to say to the applicant that what he had done during the last year was a sufficient reason why they should not at once grant him a licence, and that, as a salutary check, they would withhold it until July 1, and that if he returned for it at that period, they would give it to him. The rest of the Court concurring, Application refused. Wednesday, June 8, 1864. REG. on the prosecution of THOMAS TAYLOR V. THE DARLINGTON LOCAL BOARD OF HEALTH, 11 & 12 Vict. c. 63, ss. 45, 144, 145 (Board of Health Act)-21 & 22 Vict. c. 98, ss. 68, 70, 73, 74 (Local Government Act)—Mandamus-Local boards -“Injuriously affecting "— Watercourse-Right to compensation. By 11 & 12 Vict. c. 63, s. 45, local boards are empowered to construct sewers, and by sect. 144 compensation is awarded to persons injured by the exercise of their powers. By the 21 & 22 Vict. c. 98 (which incorporates the [Q. B. former Act), s. 73, local boards are prohibited from injuriously affecting any river or stream, &c., or the supply, quality, or fall of water contained in any river, stream, &c., in cases where any company or individuals would, if the Act had not passed, been entitled by law to prevent or be relieved against the injuriously affecting such river without the previous written consent of the parties. The prosecutor is the owner of a water-mill on the river S., and as a riparian proprietor is entitled to the flow of the water of the river S. to his mill. The defts. are the Local Board of Health of D., and some years since under the Board of Health Acts caused a sewer to be constructed near the river S. The result of the construction of this sewer was to divert and diminish the supply of water to the mill. On mandamus to compel compensation for injuries done in the exercise of the powers of the board: Held, that the acts complained of constituted an injuriously affecting of the river S., which the prosecutor would have been entitled by law to prevent or be relieved against. That they might still have been the ground of an action at law. That they therefore did not form the subject of compensation, and that the mandamus was wrong. This was a case stated for the opinion of the court by an arbitrator. It appeared that by lease dated the 2nd March 1858 George Stonehouse, being seised in fee of Blackwell-mill, demised the same for ten years to the prosecutor, who occupied the mill until some time in the month of March 1861, and carried on the business of a miller. The mill is situated on the right bank of the stream called the Skerne, and at a short distance below the town of Darlington, through which the Skerne flows. For a long period before the operations of the defts., the occupiers for the time being of Blackwell-mill, as the representatives of ordinary riparian proprietors without any prescription, enjoyed the benefit of the waters of the Skerne for the working of the mill, and the prosecutor was entitled, as such representative, to the use of the waters of the Skerne for working the mill, subject to the rights of other riparian proprietors, and the exercise by the defts. of their statutory powers. The defts. were constituted a local board of health according to the Public Health Act 1848, by a provisional order of the general board, dated the 1st Aug. 1850, and confirmed by the Public Health Act 1850. In the year 1859, the defts. constructed a drain or sewer from a point above Darlington along the right bank of the Skerne for some distance, then for some distance beneath the bed of the stream and terminating in a cesspool close to the left bank of the Skerne, with trap-doors admitting the waters of the Skerne into the sewer for the flushing thereof; this is hereafter called the first sewer. The termination of the first sewer and the discharge or return to the Skerne of the water so admitted being higher up the Skerne than Blackwell-mill, no perceptible diminution of the water flowing to the mill was occasioned while the first sewer terminated at that place. In the years 1858 and 1859 the defts. constructed a new drain or sewer in continuation of the first sewer from the place where it so terminated as aforesaid along the left bank of the Skerne, to a new cesspool considerably lower down the stream than the old cesspool, and below the place where the waters of the Skerne enter the dam of the said mill, and beyond the district of the board of health. This new drain is hereinafter called the second The water passing through the second sewer passes to the Skerne at a place so far down the stream as to be lost to the mill." sewer. |