part of it, is new or old is a question for the jury; but it is for the Court, looking at the words of the statute and at the particular pattern which is brought before them, to say whether the plaintiff has duly and properly registered his design. We are of opinion that what he has done is sufficient.

POLLOCK, C.B., MARTIN, B., PIGOTT, B., WILLES, J., KEATING, J. and MONTAGUE SMITH, J. Concurred.

Judgment affirmed.

Attornies-Emmet & Son, agents for Wavell & Co., for plaintiff; Ridsdale & Craddock, agents for J. B. Holroyd, Halifax, for defendants.

1865.

April 29. 1866. Jan. 24.

THE QUEEN, on the prosecu-
tion of THE MELTON MOW-

BRAY DISTRICT HIGHWAY
BOARD, v. THE INHABIT-
ANTS OF THE PARISH OF

ASHBY FOLVILLE, in error. Highway-Liability of Parish to repair Roads in another Parish-Prescription.

To an indictment against the inhabitants of the parish of A. for the non-repair of a highway within the parish, the inhabitants pleaded that the inhabitants of the parish of G. from time immemorial, and in consideration of levying and receiving certain rates in respect of certain lands in the parish of A. adjacent to the highway, had repaired and ought to repair the highway so often as there should be occasion. Replication, that the said agreement in the plea mentioned was duly determined by notice in that behalf:-Held, on demurrer to the replication, that the plea was bad, since the alleged consideration was insufficient to support the liability of the parish of G, because it could not be enforced, and because it could not from its nature be immemorial, and the repairs must have been done by the parish of G. by virtue of some arrangement between the two parishes, which might be, and had been, put an end to.

Semble-that, in point of law, a parish cannot be liable by prescription to repair a highway situate in another parish.

[For the report of the above case, see 35 Law J. Rep. (N.S.) M.C. p. 154.]

A natural stream or watercourse, of about a mile and a half in length, from 15 to 14 feet in breadth, and from 5 to 3 feet in depth, flowed through arable land into a river. It received at one point the drainage of two or three houses :-Held, that it was not a "sewer," within the meaning of the Public Health Act, 1848.

A mandamus directed to a local board of health, stating that a sewer is in such a state as to be a nuisance, and commanding the local board to cleanse it, cannot be enforced, as it does not shew (according to the Public Health Act, 1848, s. 58.) that the person causing the nuisance, or the owner or occupier of the premises where it exists, have failed to comply with notice to remove it.

This was an appeal from a decision of the Court of Queen's Bench, directing the verdict on the issues raised by the first and second pleas to the return to a mandamus directed to the local board of health of the borough of Godmanchester, to be entered in favour of the defendants.

This mandamus recited that a drain, sewer or watercourse in the borough of Godmanchester, and known by the name of Stonehill Brook, which was vested in and under the management of the local board, whose duty it was, under the Public Health Act, 1848, to cause this drain, sewer or watercourse to be properly scoured, cleansed, emptied and kept, so as not to be a nuisance or injurious to health, had been for some time past in a foul, unclean and improper state, so as to be a nuisance and injurious to health, and that it had caused damage to landowners by overflowing. It then enjoined the local board to cause the drain, &c. to be properly cleansed and kept.

Return-That Stonehill Brook was not

a sewer vested in the local board, according to the Public Health Act, 1848; that it was a sewer made and used for the purpose of draining, preserving or improving land, under a local act of 43 Geo. 3; and that the sewer ought to have been repaired and kept at the expense of the proprietors of lands which were divided and inclosed under the act.

Pleas-First, that the drain, sewer and watercourse in the writ mentioned was a sewer vested in and under the management and control of the local board, and that it was their duty, according to the Public Health Act, 1848, to clean and keep it so as not to be a nuisance or injurious to health; secondly, that it was not a sewer made and used under the local act, and liable to be repaired and kept at the expense of the proprietors of lands adjoining.

Upon these pleas issue was joined.

The facts are stated in a special case, which will be found in the report of the decision of the Queen's Bench (1).

It will be sufficient for the purposes of this report to say that Stonehill Brook is a stream or watercourse within the parish of Godmanchester, a district within the meaning of the Public Health Act. The whole length of its course between the London road and the river Ouse is about a mile and a half. The water of the brook between the London road and West Street is solely supplied by the drainage, natural and artificial, of a considerable area of cultivated soil, but at one point the drains of two or three inhabited houses empty themselves into the brook; but with the exception of these drains, no drains, other than the drains underground and open of purely agricultural land, discharge themselves into the brook. The channel of the brook is the natural channel of a certain natural stream, except so far as its character has been altered by the acts of the Inclosure Commissioners, acting under a local Inclosure Act of 43 Geo. 3. These persons, between 1802 and 1809, cleared out the channel of the natural stream, and in various places along its course somewhat widened and deepened it, to render it more efficient as a means of draining a portion of the tract of land, subject to the provisions of the act.

(1) 34 Law J. Rep: (N.S.) Q.B. 13.

After

The

wards, the owner of a neighbouring farm diverted the course of the stream into an artificial channel, which ran on for a length of seven chains, and re-entered the old channel. About the same time another landowner also diverted the course of the stream into an artificial channel, running to the length of about eighteen chains, and then re-entering the old channel. width of the brook varies from about fourteen feet at its upper extremity to about fifteen feet at its lower, and its depth from about three feet to about five feet between the same limits. Stonehill Brook, before the Inclosure Act, was cleared out and repaired sometimes at the joint expense of all the owners of the land, subject to the provisions of that act, and sometimes by paupers of the parish of Godmanchester, under the direction of the overseer of the poor of the parish for the time being, and paid by him out of the general poor-rates of the parish. After the inclosure, the brook was for a short time cleared out and repaired, when necessary, by the paupers of the parish of Godmanchester, under the direction of the overseer of the poor of that parish for the time being, and paid by him out of the general poor-rates of the parish; but for the last thirty years or thereabouts it has been cleared out and repaired by the owners of the lands through which it passes, each doing that portion of it which traverses his own land.

It was admitted that Stonehill Brook was and is in a foul, unclean and improper state and condition, so as to be a nuisance and injurious to health, as alleged in the writ of mandamus, and that for want of being properly scoured, cleansed, emptied and kept, it had become and was at the time in the writ mentioned and still was liable to overflow and damage, and then had overflowed and damaged the land adjoining it and the public way.

The question for the opinion of the Court was, whether the prosecutor or the defendants were entitled to the verdict on the first and second pleas to the return to the writ.

Keane (D. Brown and Markby with him), for the appellant.-In the first place, the judgment of the Court below cannot be supported if it be shewn that on the face of the record Stonehill Brook is a (( sewer,"

within the meaning of the Public Health Act (2). It is submitted that this stream is not within the exceptions of either section 2. or section 43. By section 2. the word "drain" is limited to the meaning housedrain. The word "sewer" is declared to mean and include sewers and drains of every description, except drains to which the word "drain," interpreted as above, applies. "District" is to comprise the entire area of places within the limits of any district to which the act shall be applied. It will be said that these defi

(2) The 11 & 12 Vict. c. 63. (the Public Health Act) recites "that further and more effectual provision ought to be made for improving the sanitary condition of towns and populous places in England and Wales, and it is expedient that the supply of water to such towns and places, and the sewering, drainage, cleansing and paving thereof should, as far as practicable, be placed under one and the same local management and control, subject to such general supervision as thereinafter provided."

By section 2. "the word 'drain' shall mean and include any drain of and used for the drainage of one building only, or premises within the same curtilage, and made merely for the purpose of com. municating therefrom, with a cesspool or other like receptacle for drainage, or with a sewer into which the drainage of two or more buildings or premises occupied by different persons is conveyed. The word sewer' shall mean and include sewers and drains of every description, except drains to which the word 'drain' interpreted as aforesaid applies."

By section 43. "all sewers, whether existing at the time when the act is applied, or made at any time thereafter (except sewers made by any person or persons for his or their own profit, or for the profit of proprietors or shareholders, and except sewers made and used for the purpose of draining, preserving or improving land under any local or private act of parliament, or for the purpose of irrigating land, and sewers under the authority of any Commissioners of Sewers appointed by the Crown), together with all buildings, works, materials and things belonging or appertaining thereto, shall vest in, belong to and be entirely under the management and control of the local board of health."

By section 58. "the local board of health shall drain, cleanse, cover, or fill up, or cause to be drained, cleansed, covered or filled up all ponds, pools, open ditches, sewers, drains and places containing or used for the collection of any drainage, filth, water, matter or thing of an offensive nature or likely to be prejudicial to health, and they shall cause written notice to be given to the person causing any such nuisance, or to the owner or occupier of any premises whereon the same exists, requiring him within a time to be specified in such notice to drain, cleanse, cover or fill up any such pond, pool, ditch, sewer, drain or place, or to construct a proper sewer or drain for the discharge thereof, as the case may require; and if the person to whom such notice is given fail to comply therewith, the

nitions are explained by the preamble, which limits the operation of the act to towns and populous places. But section 88. prescribes the mode of rating the occupiers of arable land. The definition in Callis on Sewers, 4th edit., by Broderip, p. 99, is still applicable. Callis says that it is a freshwater trench, compassed on both sides, and a diminutive of river. With regard to the objection that this is a sewer for draining, &c. land under a local act, in Coulton v. Ambler (3), it was held that a stream like the present one was not a drain within the meaning of a local act, giving powers over public and parish drains-see also Stracey v. Nelson (4). Secondly, the brook is not within any of the exceptions in section 43. It is not a sewer made by private persons for their profit; since it is for the equal advantage of all who dwell near it-The Queen v. Whitmarsh (5) and Bear v. Bromley (6); and the profit is derived by each person who uses it from his land, not from the sewer. Neither is it a sewer made and used for draining, preserving and improving land, under the Godmanchester local act, 41 Geo. 3. c. cix.-Logan v. Burton (7). It is made under an award which was not in accordance with the provisions of that act.

[WILLES, J.-I find that, in Com. Dig. tit. Sewers,' C. 1), the word "sewer" is extended to arms of the sea, creeks, havens and ports.]

But, lastly, the appellants are entitled to judgment under section 58, for it is admitted that the stream is offensive and injurious; and the local board are, therefore, bound to cleanse it. He also referred to Ostler v. Cooke (8), Lord Fal

said local board shall execute the works mentioned or referred to therein, and the expenses incurred by them in so doing shall be recoverable by them from him in a summary manner, or, by order of the said local board, shall be declared to be private improvement expenses, and be recoverable as such in the manner hereinafter provided."

(3) 13 Mee. & W. 403 ; s. c. 14 Law J. Rep. (N.S.) Exch. 10.

(4) 12 Ibid. 535; s. c. 13 Law J. Rep. (N.s.) Exch. 97.

(5) 15 Q.B. Rep. 600; s. c. 19 Law J. Rep. (N.s.) Q.B. 469.

(6) 18 Ibid. 271; s. c. 21 Law J. Rep. (N.s.) Q.B. 354.

(7) 5 B. & C. 513.

(8) 13 Q.B. Rep. 143; s. c. 22 Law J. Rep. (N.s.) Q.B. 71.

mouth v. Richardson (9) and Paul v. James (10).

J. Brown (Metcalfe with him), for the respondents If Stonehill Brook is a "sewer," within the meaning of section 2, there is hardly a natural stream in England that will not come within the definition. The old definitions of the word "sewer " cannot be applied to this case. It appears from the passage which has been referred to in Com. Dig. that this word extended to arms of the sea, and had a larger meaning than that which was intended by the Public Health Act. The preamble of the act shews that it was intended for the benefit of towns and populous places, and the statutory meaning of "sewer" must therefore be taken to be "town sewer." As to the last point taken by the appellants, section 145. forbids the local board to interfere with private streams and watercourses without the consent in writing of the persons interested in them. But there is no allusion to persons so interested in the mandamus.

Keane, in reply. - "Sewer" is nomen generalissimum, and refers to every sort of sewer. Arable lands are made ratable by and are clearly within the contemplation of the act.

ERLE, C.J.-I think that the judgment of the Court below ought to be affirmed. I agree with the reasons which they have assigned for their judgment, and particularly in thinking that Stonehill Brook is not a sewer, within the meaning of the Public Health Act. That statute, when the preamble is considered, appears to have been intended to apply to towns and populous places; and I do not think that the section vesting sewers in the local board can extend to a natural stream of the extent and description of that which is the subject of this appeal. If it were necessary, the respondents might resort to other objec

tions, as that this was a stream made and

used for the purpose of draining, preserving or improving land, within the exception in section 43. But I need not enter upon this part of the question. The third point upon which Mr. Keane has relied for some time weighed considerably with me. He

(9) 3 B. & C. 837.

(10) 1 Q.B. Rep. 832; s. c. 10 Law J. Rep. (N.S.) Q.B. 246.

argued that as this brook was acknowledged to be a nuisance, section 58. afforded a remedy by directing the local board to drain, cleanse, cover or fill all ponds, pools, open ditches, sewers, drains and places containing or used for the collection of any drainage, filth, water, matter or thing of an offensive nature or likely to be prejudicial to health. But we cannot give judgment for the appellants on that ground, because the section does not impose on the local board the duty of removing the nuisance except in this sense

that the board is bound to give written notice to the person causing the nuisance, or to the owner or occupier of the premises where it exists, requiring him to do what is necessary; and upon default it is empowered to execute what works are required, and charge the expenses on the defaulting person. Now, the commands of this mandamus are not framed in accordance with the provisions of this section; for the local board are themselves directed to remove the nuisance without shewing how they are liable to do so. In no respect, therefore, can the arguments of Mr. Keane be sup ported.

POLLOCK, C.B., WILLES, J., CHANNELL, B., PIGOTT, B. and MONTAGUE SMITH, J. concurred.

Judgment affirmed.

Attornies-Richard Henry Peacock, for appellant; Fox & Meadows, for respondents.

1866. Feb 10.

Į ASH, appellant, v. LYNN, respondent.

Beer Licences-Sale of Beer at Public Regatta-35 Geo. 3. c. 113. ss. 1, 17.6 Geo. 4. c. 81. s. 11.

The exemption in 6 Geo. 4. c. 81. s. 11. in favour of persons duly licensed to sell beer, &c., and carrying on their trade in booths, tents, or other places, within the limits only to the excisable penalties imposed by of any lawful fair or public races, relates

the act, and does not protect any person so

selling beer, &c. from his liabilities under 35 Geo. 3. c. 113. s. 1. for selling without a Magistrates' licence.

[For the report of the above case, see 35 Law J. Rep. (N.S.) M.C. p. 159.]

1866. Jan. 20.

MORRIS, appellant, v. JEFFRIES, respondent.

Turnpike-Road Acts-" Horses tethered or wandering, straying or lying about a Turnpike-Road"-3 Geo. 4. c. 126. s. 123. and 4 Geo. 4. c. 95. s. 75.

By the 4 Geo. 4. c. 126. s. 123. any horse, &c. found "tethered or wandering, straying or lying about" any turnpike-road (except parts of it leading through uninclosed common or waste ground) may be seized and impounded. Horses belonging to the respondent, whose carter was standing four or five yards from them, were seized, for the purpose of impounding them, while grazing on the side of a turnpike-road. The Justices found that the respondent's horses appeared to be under the control of his carter, who had charge of them : Held, that these horses were not liable to be impounded within the meaning of the 4 Geo. 4. c. 95. s. 75.

[For the report of the above case, see 35 Law J. Rep. (N.S.) M.C. p. 143.]

1866. Jan. 20.

WHITCHURCH, appellant, v.

THE BOARD OF WORKS FOR THE FULHAM DISTRICT, respondents.

Metropolis Local Management ActPaving New Street - Apportionment of Expenses-Division of Street into Sections— 18 & 19 Vict. c. 120. s. 105. and 25 & 26 Vict. c. 102. ss. 77, 110-112.

By 18 & 19 Vict. c. 120. s. 105. and 25 & 26 Vict. c. 102. s. 77, the costs of paving a new street, under the compulsory powers of the former act, are payable by the owners of the land and houses abutting upon and forming the street, and are to be apportioned by the vestry or district board of works. By the interpretation clause of the latter act, the expression "new street" is to include a part of any such street. A district board of works, after passing a resolution that a street should be paved, apportioned the expenses of paving a portion of

NEW SERIES, 35.-Q.B.

Justice of the Peace-Disqualifying Interest-Possibility of Bias.

Any direct pecuniary interest, however small, in the subject-matter of inquiry, disqualifies a Justice from acting judicially in the matter, but the mere possibility of bias in favour of one of the parties does not ipso facto avoid the Justice's decision.

The corporation of B. were the owners of waterworks, and were empowered by statute to take the water of certain streams without permission of the millowners on their obtaining a certificate of Justices that a certain reservoir was properly completed, of a given capacity, and filled with water. An application was made to Justices accordingly, which was opposed by the millowners; but, after due inquiry, the Justices granted the certificate. Two of the Justices were trustees of an hospital and friendly society respectively, each of which had lent money to the corporation on bonds charging the corporate fund. Neither of the Justices could by any possibility have any pecuniary interest in those bonds; but the security of their cestuis que trust would be improved by anything improving the borough fund, and the granting of the certificate would indi rectly produce that effect, as increasing the value of the waterworks; there was no ground to doubt that the Justices had acted bona fide:-Held, that the Justices were not dis qualified from acting in the granting of the certificate, and the Court refused a certiorari for the purpose of quashing it.

[For the report of the above case, see 35 Law J. Rep. (N.s.) M.C. p. 147.]

S