1868.

The QUEEN

V.

MCCANN.

to them for that purpose, an objection cannot be set up which might be taken on appeal against the rate (a). Here was no jurisdiction to make the rate, and therefore the case is within the principle of Milward v. Caffin (b). The mandamus was a convenient course for raising the question and obtaining the opinion of a Court of error if the parties should be so advised.

Judgment for the defendants.

Error having been brought on this judgment the case was now argued ; before KELLY C. B., BYLES and SMITH JJ., and BRAMWELL and CHANNELL BB.

Keane (Streeten with him), for the prosecution, contended that there was nothing in the case to shew that this property was not rateable. [He referred to The Mersey Docks and Harbour Board Trustees v. Cameron and Jones v. The Mersey Docks and Harbour Board Trustees (c), Lord Amherst v. Lord Sommers (d), Rex v. Hurdis (e), Eckersall v. Briggs (f), The Governor, &c., of the Bristol Poor v. Wait (g), Reg. v. The Guardians of the Wallingford Union (h), Reg. v. Temple (i), De la Beche and others, appts., The Vestrymen of St. James, Westminster, respts. (j), Reg. v. The Inhabitants of Sherford (k), Reg. v. The Inhabitants of St. Martin, Leicester (1).]

(a) See Reg. v. The Justices of Kingston upon Thames, E. B. § E. 256. Ex parte May, 2 B. & S. 426. 428.

(b) 2 W. Bl. 1330.

(d) 2 T. R. 372.

(ƒ) 4 T. R. 6.

(c) 11 H. L. C. 443.

(e) 3 T. R. 497.

(g) 5 A. & E. 1.

(h) 10 A. & E. 259.

(i) 2 E. & B. 160.

(j) 4 E. & B. 385.

(k) 8 B. & S. 596.

(1) 8 B. & S. 536.

The Attorney General, Sir J. B. Karslake (M'Mahon with him), for the defendants, was not called on.

KELLY C. B. In this case a rate was made in respect of a bridge on a body of Commissioners who under certain Acts of Parliament are constituted a corporation for the purpose of constructing and keeping it up. It appears that certain other Commissioners had reported to the Crown in favour of constructing a bridge on the spot in question, whereupon a statute was passed authorizing the Commissioners by means of funds to be provided by the Crown to construct the bridge and to receive the tolls on the same, which were in the first instance to be applied in payment of all expenses connected with the works, and in the next place in repayment of advances made by the State, the surplus, if any, to be applied for a particular specified purpose. The question is, whether the Commissioners are rateable with respect to these tolls. I think they are not, and on this plain ground, that the occupation of this bridge is not a beneficial occupation-it is not an occupation by any individual or body of persons either for private or public purposes, but it is an occupation by the Crown, or by a department of the Government as representing the Crown, for the service of the Crown. This is the exception to the liability to being rated which was specially made in the judgment of the House of Lords in the cases of The Mersey Docks and Harbour Board Trustees v. Cameron and Jones v. The Mersey Docks and Harbour Board Trustees (a). It is the same as if this had been a matter relating to the navy, in which case the Board of Admiralty would not have been rateable, or relating to trade, in which case the Board of Trade would not have been rateable. Here (a) 11 H. L. C. 443.

1868.

The QUEEN

V.

MCCANN.

1868.

The QUEEN

V.

MCCANN.

the matter is committed to the hands of that depart-
ment of the Government which contracts for the execu-
tion of works connected with the land or other property
of the Crown, viz., the Commissioners of Woods and
Forests, who for that reason and that reason only are
made a corporation. They enter into occupation and
construct the bridge in question, and under the statute
are entitled to receive certain tolls. In what character
and on whose behalf do they occupy? Certainly not on
their own account, but simply because they are that
department of the Government to whom the execution
of such works is committed.

When we look at the form of this case it may be
observed that it is a mandamus to justices of the peace
to issue their warrant to enforce the rate by distress
and sale of the goods and chattels of the Commissioners.
These Commissioners do not and they cannot possess
goods or chattels to the value of 1s. except as belonging
to the Crown. Under these circumstances we are asked
to direct the justices to seize the property of the Crown.

The rest of the Court concurring,

Judgment affirmed.

Saturday, January 18th.

Merchant
Shipping Act,

1854, 17 & 18
Vict. c. 104.

ss. 257.525(1). Enticing seaman to desert. Limitation of time for proceeding. Non-obser

vance of formalities.

AUSTIN, appellant, OLSEN, respondent.

The Merchant Shipping Act, 1854, 17 & 18 Vict. c. 104., sect. 257, imposes a penalty for persuading or attempting to persuade any seaman to desert from his ship: by sect. 525 (1) no conviction for any offence shall be made in any summary proceeding "unless such proceeding is commenced within six months after the commission of the offence; or if both or either of the parties to such proceeding happen during such time to be out of the United Kingdom, unless the same is commenced within two months after they both first happen to arrive or to be at one time within the same." Held,

1. That "parties to such proceeding" meant the person committing the offence and the person aggrieved, and that if either left the United

Kingdom during the six months, an information might be laid within two months after his return and both parties were at one time within the United Kingdom.

2. That the offence in sect. 257 might be committed where the seaman is colourably bound by the agreement, though all the formalities required by sect. 150 in the engagement of the seaman had not been observed.

ASE stated by justices under stat. 20 & 21 Vict. c. 43.

CASE

On the 19th November, 1866, the appellant, a licensed shipping agent at Cardiff, was convicted by two justices there on an information under The Merchant Shipping Act, 1854, 17 & 18 Vict. c. 104. s. 257., charging that he unlawfully attempted to persuade the respondent, a seaman lawfully engaged to serve on board a British ship called the England's Rose, to neglect to join his ship.

On the 4th April, 1866, the respondent signed an agreement at the office of a ship broker at Cardiff to serve as a seaman on board that ship as a substitute for one of her crew, who had deserted. Shortly afterwards, about 5 o'clock in the afternoon of the same day, the respondent was asked by the appellant to join a ship called the Etta. He refused, stating that he had shipped in the England's Rose. The appellant repeated his request but without success, and the respondent sailed the next morning, but at what exact time the evidence did not shew. He returned to England at the end of October, 1866, having been continually absent since he sailed from Cardiff on the 5th April.

The information was laid on the 14th November, 1866. At the hearing the appellant took the preliminary objection that the information was not laid in due time, inasmuch as the respondent, one of the parties, was at the time of the commission of the offence, and for some time after, not out of the United Kingdom, and ought therefore to have commenced his proceedings within six months from the 4th April in pursuance of sect. 525.

1868.

AUSTIN

V.

OLSEN.

1868.

AUSTIN

V.

OLSEN.

The justices considered that as the respondent could not have stayed in this country to institute his proceedings without in some way more or less disadvantageous to him putting an end to his contract to serve in the England's Rose, and, considering that, except for a very short time, probably not so much as twenty-four hours, he was actually out of the United Kingdom for the whole period of six months, the case might be held to be within the last clause of sect. 525, and consequently that the information being laid within the allowed period of two months was in time.

It was also contended that the respondent was not a seaman lawfully engaged to serve as a substitute in the England's Rose within the meaning of sects. 243 and 257; that, it being impracticable, as was shewn, to engage the respondent before the Superintendent of Mercantile Marine or his deputy, the agreement should have been read over and explained to him as well as signed in the presence of an attesting witness in pursuance of sect. 150 (4). The signing was proved, but there was no evidence of the reading and explaining (a). The justices presumed the latter formality to have been observed, and held that the agreement was lawfully made.

By The Merchant Shipping Act, 1854, 17 & 18 Vict. c. 104. s. 150., "In the case of all foreign going ships, in whatever part of Her Majesty's dominions the same are registered, the following rules shall be observed with respect to agreements; (that is to say,)"

(a) "Where a deed is produced, purporting to have been executed in due form by signing, sealing, and delivery, but the attesting witnesses can only speak to the fact of signing, it may be properly left to the jury to presume a sealing and delivery." Best Ev. 472, 4th ed.; 1 Tayl. Ev. 159, 5th ed.