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[Ex. tiff as reversioner, upon the determination of a the cost of all these works must be borne, may be a lease for lives, of a field or piece of land through heard, in the first instance before the local authoand across which the defendants have carried a rities against the proposed works, and at last sewer, which they have constructed under the may appeal against their decision to another powers alleged to have been conferred upon them tribunal. But on the other hand the local by several Acts of Parliament, in consequence of a authority, wherever, throughout England, the former sewer having become a nuisance within the general Act is adopted, is invested with a specific meaning of the Nuisances Removal Act (18 & 19 but unlimited and unconditional power to put an Vict. c. 121). There was formerly an open sewer end at once to any nuisance found to exist, and from a point described as the junction, and descend- which may endanger or prejudice the public health ; ing southwards to the river Roche. At this point and for this purpose they may cover in or repair, or called the junction, three sewers belonging to the alter any drain or sewer, or make an old sewer into town of Bury converged, and constituted the nui- a new one, if necessary to do away with the nuisance in question, to remedy which the defendants sance. But this seems to be confined to cases of constructed a covered sewer, carrying it for a small necessity, and to the operating locally and on the distance of about 100 yards along the site of the spot upon drains or sewers in which a nuisance has old sewer, and then diverging towards the west, arisen. I think it cannot have been the intention made it to enter the piece of land in question, and of the Legislature to confer an unlimited and unpass through and under it for the space of about conditional power upon the local authority to con300 yards to a highway at its south-western corner, struct new sewers wherever they in their discretion whence it passed into another public sewer, which may think fit, whether through or under inclosed also, after a southerly course of about a míle, dis- lands or houses or buildings of whatever class or decharged itself into the river Roche. The defendants scription or value, and at whatever amount of expense, justified this act under the 18 & 19 Vict. c. 121, without notice and without appeal, and without 8. 22, and the question is whether they were autho- an opportunity to either ratepayers or proprietors rised to carry this sewer through the close in ques. even to appear and be heard against the contemtion. I am of opinion that the defendants had no plated works, however seriously they might such authority, and that the plaintiff is entitled to affect their interest, their comfort, or their prothe judgment of the court. Upon considering the perty. The 102nd section of the Act (9 & 10 Vict. several Acts referred to, it will be found that the c. ccxciii.) after providing that the commissioners defendants, as improvement commissioners of Bury, may construct such and so many main and other acquired the ownership, and became entitled to the sewers and drains as they shall think necessary, control and management of the whole of the sewers proceeds to enact that “In case it shall be found within the district, subject only to the right vested necessary for completing any of the aforesaid in the local authority, to correct or remedy a works, to build, carry, and continue the same into nuisance existing in any sewer or drain under and through any inclosed lands or other places, not the provisions of sect. 22 of the Act before being a public way, it shall be lawful for the comreferred to. The right conferred upon the missioners to build, carry, and continue the same defendants under this 22nd section is merely into or through the lands or other places accord"to lay down a sewer, or some other structure ingly, making full compensation to the owners or along any ditch, gutter, drain, or watercourse occupiers thereof." Then, by sect. 110, “ Before used for the conveyance of sewage, or some making any sewer where no common sewer prepart thereof, or instead thereof where such drain viously existed, the commissioners shall give notice has become a nuisance, and cannot be otherwise of their intention twenty-eight days at least before rendered innocuous," But the board have no the commencement of the work." Such notice general power to construct new sewers or to deal shall also set forth the time and place of holding a with old ones, except under the above words of meeting of the commissioners to consider any the Act. That power is conferred upon the im- objections made against such intended works, and provement commissioners, who, by the express lan- all persons who shall deem themselves interested guage of sect. 102 of the Improvement Act, are therein, or likely to be aggrieved thereby, shall be authorised to construct whatever sewers and drains entitled to be heard before the commissioners at they may think necessary, not only in, under, and such meeting, and therefore the commissioners may across the underground cellars and vaults within abandon or make such alterations in the said the district; but also, if necessary, to carry their intended works as they shall judge fit.” And sewers into and through any inclosed lands, or sect. 111 enacts, “That any one liable to contribute other places not being a public way, within the to the expense of any such work, or who shall limits of the Act. But the exercise of this power otherwise deem himself to be aggrieved by the is subject to the right of compensation in the undertaking, may, within seven days next after the owners and occupiers of the land, and subject also to order of the commissioners, give notice of appeal to the condition of giving a public notice of twenty- the next general or quarter sessions”; and upon eight days before the commencement of the work, entering into a recognisance, go before the quarter and of appointing and holding a meeting of the sessions, who may hear and determine the appeal. commissioners to consider any objections which The defendants, therefore, in their character of may be made by any one interested in the execu- commissioners, were authorised to construct the tion of the contemplated works. And further, if sewer in question, but only subject to the above the commissioners should decide against the objec- conditions of giving public notice of holding a tion and persevere in the work, the party aggrieved meeting at which the plaintiff could have been has an appeal to the quarter sessions against their heard against the making of the sewer, with an decision. The effect of the Acts considered appeal to the sessions in case they should have together appears to be to confer upon the autho-decided against him, and finally of making compenrities constituted under the local Act a general sation if the sewer at length were carried through power to make and maintain, repair, divert, his land. It seems to me impossible to suppose that or alter all drains and sewers, old or new, the Legislature with this Act, and all these prowhen, where, and as they deem necessary or visions for the protection or indemnity of the expedient. But this power is subject to reason- owners of property in this district in full force able restrictions and conditions, and among them and operation, could have intended to authorise the all important condition that the owners of pro- these same commissioners, or any other body of perty taken or injured, and the ratepayers by whom I persons who might have constituted the local
EARL OF DERBY v. THE BURY IMPROVEMENT COMMISSIONERS.
authority, to do these acts to the injury of the sewers in any place and through any description of owners of property, without any notice; without property is conferred upon a public body. I am of any opportunity of being heard against it; without opinion, on the contrary, that the Nuisances Reany appeal, and without compensation; or at least, moval Act should receive a large and liberal conthat the Legislature could have conferred so extra- struction, and that it enables the local authority ordinary a power not subject to any conditions at to resort' to any means whatever which may be all without expressing that intention in clear and absolutely necessary to put an end to a nuisance ; unambiguous language. It is contended, however, and this on the ground that the exercise of power that the words, “ the laying down of a sewer or without limit or restriction may in some cases be some other structure along the same, or part thereof, necessary to put an end to a nuisance which may be or instead thereof,” authorises the board of health to prejudicial or dangerous to health or to human life. do as they have done, that is, to abandon the old sewer And if the traversing of the plaintiff's enclosed throughout the greater portion of its course, and field were necessary to the completely remedying or then to construct a new sewer in any direction, or removing the nuisance in question, I should think through any description of property which happens that even that measure might be resorted to under to lie within the limits of the Act. I think that these the 22nd section. But it is quite obvious that this words simply mean that where a sewer has become end may be accomplished by merely carrying away a nuisance, the board may render it innocuous by the accumulation of filth and converting the open either repairing or covering it in, or constructing a drain into a covered sewer upon the same spot and new and covered sewer instead of the open one in the same direction as that which now exists. It which before existed. But it must be in the same is, therefore, that I think that the local board have line or course and as nearly as may be upon the exceeded their powers in entering, and cutting site of the former sewer. If it become necessary it through the enclosed land of the plaintiff as comwould not be unreasonable to read the words of the plained of in this action. Act reddendo singula singulis as authorising the laying down of a sewer along the existing drain or part MARTIN, B.—I, unfortunately, have arrived at a thereof, or another structure instead thereof. The different opinion, and I will now proceed to read the section proceeds to declare that the board shall judgment I have written upon the case :- This is a have the same powers as to the entering lands for special case stated by virtue of an order of nisi this purpose as are contained in sects 67 and 68 of prius. The questions for our opinion are two, first, the Highway Act, but the 5 & 6 Will. 4, c. 50, s. 67, whether the defendants were justified under certain to which reference is thus made, contains no Acts of Parliament in cutting and constructing a express direction as to the entering of lands, or how sewer; and, secondly, whether the defendants ought any lands shall be entered, but relating as it does to have given a notice under the 110th section of to the making of ditches, gutters, drains, and the Bury Improvement Act 1846. As to the second watercourses by surveyors of highways, enables question the learned counsel for the defendants them to carry such ditches or other works through abandoned their defence and relied solely upon the any lands or grounds adjoining or lying near to 22nd section of the Nuisances Removal Act for any highway. I cannot think that any authority England 1855, where no notice is required. It is thus conferred upon the local authority to make was argued that the operation of the 22nd section any new sewer through the inclosed land of the was restrained by the Bury Improvement Act. Very plaintiff, which does indeed happen to be on one extensive powers to make sewers are thereby given, side bounded by a highway, but which might have and compensation is to be paid to the owners of been surrounded by other inclosed lands, and a enclosed lands through which they are made. By mile or miles distance from any highway at the 110th section notice is to be given of the intenall. It is to be regretted that the defendants tion to make them, and the defendants cannot should not have availed themselves of the ample justify under it, because they did not give the power they possess under the improvement Act requisite notice. But, in my opinion, the 22nd to construct the work in question, but as it section is not restrained by the local Act. The is admitted that no notice was given of their Nuisances Removal Act of 1855 is a general Act intention as required by sect. 110, they are applicable to all England. There is not one word compelled to resort to the Nuisances Removal Act, to show, either expressly or by implication, that its and to claim a right to enter and use the plaintiff's provisions are to be restrained by local Acts. The land for the purposes of the work, without affording Legislature of late years have passed a variety of him the opportunity which it is manifest that he is Acts for the removal of nuisances and prevention entitled to under the improvement Act, of being of disease, and have dealt very summarily with heard before the commissioners upon his objections what has been called in the argument “private to the work, and of appealing from their decision to rights." The object of the Act is declared to be the Court of Sessions in case it should have pro- to substitute more effectual provisions than then nounced against him. Looking, therefore, to the existed. The enactments of the 22nd section are general intent of these Acts of Parliament con- general. There is no reference to local Acts, and it sidered together, to the express provisions of the seems to me that its operation would be fettered improvement Act, and putting a fair and reasonable and crippled, and its construction and operation construction upon the words of the Nuisances rendered practically impracticable, if its plain and Removal Act, I am of opinion that the carrying unambiguous language is to be affected by the of the sewer through the inclosed land of the infinite number of local Acts in which provisions plaintiff was not justified, and that the plaintiff is are to be found relative to sewers. These provientitled to the judgment of the court. I have to sions are not uniform, and, if the construction add that my brother Channell concurs with me in contended for on behalf of the plaintiff be correct, this judgment. I have considered with very great one construction would be required to be given to attention the proposed judgment of my brother the 22nd section as regarded one town and another as Martin in this case, and I would observe that I am regarded another, if the provisions in their respecfar from thinking that the Nuisances Removal tive local Acts as to sewers were different, as in the Act is in any way controlled or restricted by great majority of instances they are. Great stress the Local Bury Improvement Act, which indeed was laid upon the provision in the local Act that is referred to only as showing the care and vigi- the owner was to receive compensation. By the lance with which the Legislature has guarded the 22nd section he is to be paid for the damages which rights of property where a general power to construct he should sustain. I do not myself appreciate the
[Ex. difference. The sewer is only fan easement, and, if owners or any other person to in any way interfere the damages are to be paid which the owners sustain with drains made under the authority of the Act, from the making of it, I think it would include and does not apply to the provision to enter lands; compensation if, indeed, in such a case compensa- but the 67th section enacts substantially in the tion and payment for damage are not synonymous words of the 21st section of the Nuisances Removal terms. In my opinion, therefore, the present case Act, that for highway purposes highway surveyors depends upon the 22nd section of the general Act, shall have power to make drains through the and upon it exclusively. The facts are very simple lands or grounds adjoining or near to the highThe plaintiff is the owner in reversion expectant way upon paying to the owner of the land the upon the determination of a lease for lives of some damages which he shall sustain, to be settled and land in the neighbourhood of Bury which lies paid in the manner prescribed by the 51st and 54th within the jurisdiction of the defendants who are sections. Now, assuming it to be necessary for the the local authority within the meaning of the 22nd defendants to rely upon this part of the 22nd section. The land is a field in a farm used in section for their justification, it seems to me that agriculture, bounded on the north by the Bury and their power of entry is to enter upon any lands Rochdale turnpike road and on the west by Back- within their jurisdiction for the purposes of laying lane. There is a brook or watercourse called down the sewers, but that compensation is to be Hartly Brook, which flows from the north across made to the owners for the damage they sustain. the Bury and Rochdale-road into the plaintiff's It is a true test in such cases as the present to frame land and thence into the river Roche. Three sewers a special plea of justification, and ascertain whether meet at a point in this road, and the sewage from the facts found in the special case would prove it. the houses and premises in the neighbourhood there It is my opinion they would, and that a plea so framed make a junction, and the sewage of all three flowed would be good on demurrer, and that there are no into the Hartly Brook, which was used for its con- facts found in the case which would be an answer to veyance to the river. Complaint was made to the it by way of replication. It was contended by the defendants of this being a nuisance and the case finds earned counsel for the plaintiff that a strict conthat in point of fact it was a nuisance within the struction should be applied by reason that the meaning of the Nuisance Removal Act, and, in the power of entry into lands of a private individual opinion of the defendants, could not be rendered for public purposes is an extreme exercise of legisinnocuous without laying down a sewer. The lative power. On the other hand it was contended defendants thereupon laid down the sewer which is by the learned counsel for the defendants that the complained of. The sewer runs for a short distance object of the Legislature being the avoidance of by the side of the Hartly Brook, and then crosses public nuisances and the prevention of disease, a the plaintiff's land in a diagonal direction and is most liberal construction should be made. I have continued down Back-lane. The case finds that the given the construction to the 22nd section, which it new sewer intercepted and diverted away from the seems to me the natural and ordinary meaning of Hartly Brook the whole of the sewage of the three its words import, and applying it to the facts found sewers through the land of the plaintiff, and is con- in my opinion there is an answer to the action. I nected with a system of sewage and drainage made would observe, however, that if in the neighbourby the defendants communicating with the river hood of towns the Legislature confer large and Roche; that the nuisance could not be removed extensive powers over adjoining lands for the purpose without constructing a new sewer, and that the course of securing the comfort and health of the inhabitants, pursued by the defendants was the most inexpen- they may not unreasonably justify themselves by sive and convenient. There is a plan which shows the consideration that the very neighbourhood very plainly what is above stated, and the question increases the value in very many instances, and is whether the defendants were authorised to make probably at this town of Bury one hundredfold ; and justified in making the new sewer. The 22nd and with this enormously increased value there section enacts that whenever a watercourse partly is no just ground of complaint that the owner used for the conveyance of sewage from any house is subjected to somewhat more stringent proor premises is a nuisance within the meaning of the vision for the public good than owners of proAct, and cannot, in the opinion of the local autho- perty not so happily and advantageously situated. rity, be rendered innocuous without the laying down I have had the advantage of reading the judgment of a sever along the same or part thereof, or instead of the Chief Baron, which is concurred in by my thereof, the local authority shall, as they are thereby brother Channell. The ground of difference between required to, lay down such sewer. Now the facts us is plain and manifest. I am of opinion that the found in the special case are that there was enactment of a general Act relating to the sewage watercourse partly used for the conveyance of of towns expressed to apply to the whole of Engsewage from certain houses; that it was a nuisance land, and in no way referring to local Acts, is to be within the meaning of the Act; that it could not, construed according to the ordinary and natural in the opinion of the defendants (the local autho- meaning of the words used and is not to be rity), be rendered innocuous without laying down restricted or affected by local Acts. If the contrary the new sewer, which has been laid down in the view be correct, the inevitable consequence will be least expensive and most convenient manner. Under that, instead of the general Act operating uniformly such state of facts, what duty did the Act impose and consistently throughout the kingdom, there will, upon the defendants? In the very words of the as regards different towns, be as many different section it is, that they should, and were thereby constructions as there are different local Acts vary. required to, lay down such a sewer, and that it ing in their provisions relating to sewers. Such might be made either along the old watercourse or local Acts are very numerous, and probably no two part of it, or instead of it. It therefore seems to or three of them precisely correspond. The practical me that the defendants have done exactly what the effect of this judgment of the court will be that section requires them to do. The section proceeds the town of Bury will be deprived of the benefit of to enact that they were to have the same power as the Nuisance Removal Act for England 1855, by to entering lands as were contained in the 67th and reason of the existence of a local Act in no wise G8th sections of the Highway Consolidated Act inferred by the general Act. In my judgment, this (5 & 6 Will. 4, c. 50), and in another part of the is going beyond the legitimate function of judicial section it is enacted that the provisions in the construction.
Judgment for the plaintiff. section shall be deemed to be part of the law Defendants' attorneys, Redsdale and Craddock, for relating to highways. The 68th section forbids the Harper and Dodd.
[N181 Prius. NISI PRIUS.
the parish, but that point was not left to the jury, as the learned judge concluded the case by his ruling
upon the other issue, viz., the due election of the WESTERN CIRCUIT-EXETER.
prosecutor. Devon SPRING ASSIZES.
It was proved that on the 22nd April the prose
cutor and Mr. George Were were, under protest of Tuesday, March 10, 1868.
Canon Girdlestone, the vicar, who was chairman of
the vestry meeting, duly elected by the parishioners (Before BOVILL, C. J. and a Special Jury.) to be churchwardens of the parish of Halberton. REG. v. FREEMAN (Clerk). (a)
At the same time the vicar nominated Mr. Martin
as the minister's churchwarden of the parish. Mr. Election by parishioners of a churchwarden- Claim of Clarke, being a justice of the peace, and unwilling
eremption-Appointment of another person-Condi- to serve the office, subsequently claimed exemption, tional re-election-Mandamus against an archdeacon.
and refused to be churchwarden.
On the 9th May at another restry meeting duly The election by parishioners of a churchwarden, who held, Mr. Nathaniel Cook was elected churchwarden
claims exemption from the office, cannot be revived and by the parishioners instead of Mr. Clarke. confirmed by a vestry meeting after the election of On the 16th May Archdeacon Woolcombe, on another person, and that other's resignation on condition behalf of the defendant, held a visitation court at that the former would accept the office, although neither Cullompton, when Canon Girdlestone presented his
of them has been admitted by the archdeacon. nominee Mr. Martin, and the names of Messrs. At the trial of an issue raised upon the return to a writ Cook and Were were presented in writing by the
of mandamus, which directed an archdeacon to admit parishioners. Mr. Woolcombe being unwilling to the prosecutor as churchwarden of the parish of decide this dispute between the vicar and his Halberton, it was proved that the prosecutor was duly parishioners, and also entertaining some doubt as elected by the parishioners on Easter Monday; that, to the validity of the election of Mr. Cook, which being a justice of the peace, he claimed exemption, had taken place after Easter week, refused to admit and refused the office; that another person was duly any of the gentlemen nominated as churchwardens, elected in his stead; that subsequently, the latter and referred the matter to the defendant. resigned his office on condition that the former On the 18th May another vestry meeting was duly would accept it; that a restry meeting confirmed the held at Halberton, and the following entıy was made previous nomination and appointment'; and that the in the vestry book : prosecutor withdew his claim for exemption, and At a vestry meeting held this day, a letter was received from accepted the office, but neither of them was admitted Mr. N. Cook, insisting to resign the office of churchwarden, by the archdeacon :
provided R H. Clarke, Esq., would accept the office.
It was moved and carried unanimously, that his resigaation Held, that this confirmation of the appointment was a
be accepted. And we the undersigned, in vestry assembled, fresh conditional election at a time when the office of R. 11. Clarke, Esq., and Mr. George Were, as church.
do hereby confirm the previous nomination and appointment was filled, and that the prosecutor was not duly elected wardens for the ensuing year; both of whom consent to accept churchwarden.
Carried unanimously. This was an issue raised upon a return to a writ
(Signed by the Members of the Vestry present) of mandamus, and sent down by the Court of Queen's On the 7th June Messrs. Martin, Clarke, and Bench to be tried at the assizes.
Were attended at the office of the defendant's regisThe writ of mandamus was granted upon the trar to be admitted as churchwardens. The registrar, prosecution of Richard Hall Clarke against the in accordance with directions he had received from Venerable Philip Freeman, Clerk, and Archdeacon the defendant, offered to admit Martin and Clarke, of Exeter.
but the latter declined to be admitted except with After reciting that, by the 5 & 6 Will. 4, c. 62, Were. The registrar therefore admitted Martin 8. 9, churchwardens must make a declaration to the
only. archdeacon before beginning to discharge the duties Upon this Were obtained from the Court of of their office; and reciting that it had been through- Queen's Bench a writ of mandamns directing the out legal memory the custom of the parish of defendant to admit him as church warden ; which Halberton, of which the Rev. Canon Girdlestone is writ was obeyed on the 16th Aug., but the defenvicar, in the archdeaconry of the defendant, for the dant then refused to do what he had previously parishioners to elect both the churchwardens of the offered, viz., admit Clarke, on the ground that the parish; and reciting that on Easter Monday, the offices of the church wardens of Halberton were then 22nd April 1867, the prosecutor, Richard Hall
filled. Clarke, was duly elected, according to the aforesaid
Clarke then applied to the Court of Queen's custom, to be one of the churchwardens of the Bench as Were had done before, and the present parish of Halberton; the writ directed the defen- issue was raised upon the return to the second dant to administer the usual declaration to the writ of mandamus granted against the defendant. prosecutor.
In the return to the writ, the defendant alleged Prideaux submitted that upon these facts the prothat there was no such custom in the parish of secutor was not duly elected churchwarden of the Halberton as that recited in the writ, and that the parish. He had claimed exemption as a justice of prosecutor was not duly elected churchwarden of the peace, and the first election on the 22nd April the parish. And the defendant stated that for was therefore null and void. The election of Cook these reasons he did not administer an oath or on the 9th May, although it did not take place in declaration to the said R. H. Clarke, as directed. Easter week, was perfectly valid : (Birnie v. Weller,
The pleas by the prosecutor traversed the allega-3 Hagg. 474.) It followed therefore that, as Cook's tions in the return to the writ, and issue was joined. resignation of the office was only conditional upon Coleridge, Q. C. and Bere for the prosecution.
Clarke's accepting it, the confirmation by the vestry
of Clarke's previous nomination and appointment Prideaux, Q. C. and Lopes for the defendant.
took place before the office was vacant; and further,
the appointment of Clarke could not be revived Some evidence was produced as to the custom of after his resignation and that of his successor,
without another election, which upon the minutes (a) Reported by M. W. MCKELLAR, Esq., Barrister-at-law. was not shown to have taken place. Moreover, pass book,
[Nisi Prius. Clarke's name was never presented in writing to the Prisoner was indicted for forging a banker's archdeacon.
with intent to defraud. He was treasurer to a trades
union, which was admitted to be within the decision in Coleridge, contra, contended, that as neither of the Hornby v. Close (ubi. sup.). It was contended that nominees had been admitted by the defendant, the such a society, having no legal existence, could possess no confirmation of Clarke's appointment on the 9th funds, and, therefore, could not be defrauded : May was valid. As Cook resigned before his Held, that the objection of illegality, was applicable admission, his election was of no consequence, whether it was rendered void by not being in
only to the summary proceedings before magistrates Easter week or not. The resignation of Clarke and
provided by the Friendly Societies Act; but did not
extend to deprive the society of its remedy by indicihis withdrawal of the resignation were neither of
ment. them submitted to the only authority which could have rendered them effectual; the first election on
Whether, upon an indictment for embezzlement, in which Easter Monday ought, therefore, to be supported.
it would be necessary to prove the property, it could Besides, any informality in Clarke's appointment
be objected that the society, having illegal objects, had by the parishioners was cured by the defendant's
no legal existence, and could not, therefore, possess offer to admit him on the 7th June.
Indictment for forgery. Prideaux, in reply, cited Hawley v. Barbet, 2 Esp. First count charged that the prisoner, on the 28th 687, in which Lord Kenyoa said, “ The second ob- Nov. 1867, did forge an accountable receipt for jection is, that the nomination of the plaintiffs, as money, i.e., a bankers' pass-book, purporting to be churchwardens, on the 10th April, was rescinded, the account of receipts and payments by Heywood, and a new election ordered; it being stated to be Brothers, and Co, bankers, in account with the the usual way of proceeding at those vestries, to “Operative House Painters' Association," &c. read over at the next meeting the resolutions of Second count charged the uttering, &c. the preceding one, and to confirm or rescind them. Third count described the instrument as an acI am of opinion that they had no such power, and quittance for money, alleging the forgery. that there is no necessity for the confirmation by Fourth count charged the uttering. the second vestry of what was legally done at the It appeared that the prisoner, William Dodd, had first. If the first was a legal vestry (and nothing acted as treasurer to a trade society called the appears here to impeach it), the election of the “ Manchester Operative House Painters' Associaplaintiffs was legal. The plaintiffs became inime. tion,” which was a society established partly for the diately legal officers, and under the statute 43 Eliz. relief of its members in cases of accident, and invested with the temporal office of overseers of the partly for providing assistance in the case of strikes. poor, as well as a spiritual one." This could only It was admitted on the part of the prosecution that hare been a fresh elcction made at a time when the it was an unenrolled society, and that some of its office was full.
rules were in restraint of trade. The prisoner was
elected treasurer to the society in the month of June Bovill, C. J.-I must hold that Mr. Clarke was 1862, and it was his duty to receive the week's connot duly elected church warden by the parishioners tributions from the secretary, giving his receipt for of Halberton. The proceeding on Easter Monday them, and then to pay them into the bank of Messrs was doubtless good, but he declined to avail himself Heywood Brothers, and Co., in Manchester, with of that appointment, and obtained exemption on the whom the society kept an account, and where they ground of his being a justice of the peace. Accord already had about 2001. deposited. His salary was ingly a valid election of Mr. Cook took place, and 13s. per quarter, and for each visit that he paid to subsequently Mr. Cook resigned, on condition that the bank either for the purpose of depositing or of Mr. Clarke would accept the office. The proceeding, drawing out money on behalf of the society, he was therefore, on the 9th May was only a conditional entitled to 2s. 6d. in addition to his salary. election, which must have been void. The question The books of the society were audited quarterly, of the custom cannot therefore be raised in this and at these audits the prisoner continued to produce case, and the verdict must be entered for the defen- what purported to be the bank pass-book belonging dant.
to the society; and it showed that in the month of
Verdict for defendant. Nov. 1867 there was a sum of 8901. 10s. to the Attorneys for the prosecution, Terrell and Pethe society's credit. The cash books also one of which rick.
was kept by the prisoner and one by the secretary)
confirmed this state of affairs, and showed that the Attorney for the defendant, T. E. Drake.
prisoner had made forty-three lodgments on behalf of the society from the time of his appointment up
to Oct. 1867. For some reason or other, however, NORTHERN CIRCUIT.
one of the members of the society went to the bank MANCHESTER SPRING ASSIZES, 1868. and made some inquiries into the state of the Wednesday, March 11, 1868.
account, and it was then found that the balance in
the society's favour amounted to only 991., only nine (Before Mr. Justice LUSH.)
lodgments (amounting to 2101.) having been made, Reg. v. Dodd. (a)
and all these anterior to the year 1864 ; while on the
other hand the sum of 3701. had been drawn out up Forgery-Intent to defraud-Trades Union—Illegal to the beginning of 1867. The prisoner was theresociety.
upon taken into custody and charged with the forThe decision in Hornby v. Close (15 L. T. Rep. N. S. gery of the pass-book, and he then
admitted that he 563 ; 10 Cox C. C. 393) that a Trades Union, part had done so, and added that he had burnt the real of whose funds are applied to the maintenance of one. strikes, is an illegal society, and, therefore, cannot It appeared that the prisoner had also kept a maintain a complaint against an officer of such society private banking account at the Messrs. Heywoods, for embezzlement of its funds, applies only to pro- and that he had erased his name from his own passceedings taken under the Friendly Societies Act, and book, and substituted that of the society, and in does not extend to an indictment.
this way had been enabled to pass off the forged
book. These facts were proved, and one of the @) Reported by Joux KINGHORN, Esq., Barrister-at-Law. witnesses in cross-examination said: “The associa