legal existence of the tolls was sufficient, and the plaintiff had to take his chance of obtaining the requisite license. He cited Nowell v. The Mayor of Worcester (3), Pedder v. The Mayor, &c., of Preston (4), The King v. Cator (5), The King v. Davis (6), The Thames Conservators v. Hall (7), and The Queen v. Champneys (8).

Hardinge Giffard (Rees with him), for the plaintiff, the respondent, contended that there was no such absolute identification of the corporation with the local board as to make the consent given by the corporation in one capacity equivalent to a license granted by them in an entirely different capacity. As board of health, the corporation are trustees for the protection of the public health, and discharge functions entirely different from their functions qua corporation only. Pedder v. The Mayor, &c., of Preston (4) was decided on the ground that though the accounts kept by the corporation at the bank were separate, the defendants were, as was pointed out by Williams, J., qua corporation and in the same right debtors in the one and creditors in the other account. So that case is not in point; nor are the others cited for the appellant. There is nothing in the Brecon local Act to supersede the law of the land on the subject of slaughter-houses; and that law, as it stood at the time of the passing of the local Act, made the license of the local board necessary previous to the erection of any slaughter-house in Brecon. The last contention of the appellants is not open to them on the reservation made at the trial.

Cur. adv. vult.

On June 25, the following judgments were given

WILLES, J.-In this case the question reserved for the Court of Exchequer was whether the consent given by the corporation under section 65 of the Brecon Local Act stood in the place of the license

(3) 9 Exch. Rep. 457, 466; s. c. 23 Law J. Rep. (N.s.) Exch. 139.

(4) 12 Com. B. Rep. N.S. 535; s. c. 31 Law J. Rep. (N.S.) C.P. 291.

(5) 4 Burr. 2026.

(6) Leach's Crown Cases, 3rd ed. 306, Case 131. (7) 37 Law J. Rep. (N.s.) C.P. 163, 167. (8) 40 Law J. Rep. (N.s.) C.P. 95.

required by the Towns Improvement Act? The Court of Exchequer were of opinion that it did not, and they founded that opinion upon the notion that the application made to the corporation was made expressly under the 65th section of the local Act, and was granted by the corporation intending to act under the same 65th section; and that intending to act upon that power only, they could not be taken to have acted upon the power contained in ss. 125 and 126 of the Towns Improvement Act; that their intention having to be taken into account, the consent given was only an exercise of the power under the local Act, and not an exercise of the power under the public Act; and the special ground of the judg ment was that section 65 of the local Act had no reference to the public health, but was introduced with reference only to the claims of the Corporation and the Brecon Markets Company on one another; and that still there remained to be exercised the power of the Corporation under the public Act.

It is necessary to consider how these Acts of Parliament run in point of time; first of all to deal with the local Act and its effect, and then to see what operation the public Act has upon it. It seems that the corporation of Brecon (one of the most ancient corporations in the kingdom) had got a right to various tolls and had got a right to the fair and market, and it was thought desirable that powers should be given of providing a slaughter-house for the town; and the Act (1 & 2 Vict. c. xii.) was passed, giving the corporation power to provide slaughterhouses in the borough, and to provide a market-house in the borough to be exer cised, as of right, and as their own market. A market-house was also provided under this Act, but not a slaughterhouse. The corporation then became indebted to a great number of persons. It was supposed that the tolls were not properly collected; and that they would be better collected for the benefit of the creditors of the corporation, and for the corporation itself, by constituting a new company to collect it. And accordingly by the local Act, 25 & 26 Vict. c. clxxxvi, the Brecon Markets Company was incorpor

ated, consisting of the creditors of the corporation; the Act reciting that it was expedient that parts of the estates and property of the corporation should be vested in and managed by the company, and that provision should be made for the discharge of the debts and liabilities of the corporation; and further that it was expedient to repeal the Act of 1 & 2 Vict. giving power to the corpora tion to make other provisions for the markets and fairs, &c., and that it was expedient that the company be authorized to provide a new market-place in the borough for the cattle market and for slaughter-houses, and to acquire lands for that purpose; and that the cattle-market be removed from the streets in the borough to the market-place so provided. The 14th section incorporates various Acts of Parliament including the Markets and Fairs Clauses Act of 1847, but not the Towns Improvement Act of 1847, and provisions are made for the management of the company, for making a certain payment to the corporation, and for the application of the proceeds of the tolls to be received. The latter provision is to be found in the 47th section. The tolls are to be applied in ing off, in fact, the debts of the corporation. By the 64th section the company are to make, provide and maintain a proper and sufficient place for holding the cattle market, and all such approaches and conveniences connected therewith, and thereto, as they think fit. By the 65th section, which is differently framed, the company are from time to time, if and when they think fit, and with, but not without, the consent of the corporation testified by writing under the hand of the Mayor and Town Clerk, to provide and maintain slaughter-houses and approaches sufficient for the slaughtering of cattle for the supply of the borough, and so on; but if any slaughter-houses be provided they shall be provided at or as near as conveniently may be to the cattle market-place provided under the Act, and the slaughter-houses so provided shall be deemed to be part of the marketplace. The 76th section gives the Company power to take tolls for slaughtering of horses; the 85th section authorizes

pay

the inspector of provisions or any other officer appointed by the company, either with or without assistance, from time to time, to enter into and inspect any building or place in the borough which he has reason to believe is used for slaughtering cattle, to keep up a monopoly; and the 86th section gives the company a control over the refuse of the slaughter-houses.

Under that Act of Parliament it was that an application was made to the corporation, and that the consent was given by the Town Council, signed in accordance with the 65th section, by the Town Clerk; and in pursuance of that consent the slaughter-house was made, which slaughter-house was demised to the Brecon Markets Company. Well, that being so, everything appears to have been regular, and it was in consequence of the operation of the public Acts upon the slaughter-house so to be made that the objections were taken to the title of the Market Company. One must observe that this analysis, so to speak, of the contents of the local Act of 1862 clearly shews that the consent to be given by the corporation to the erection of the slaughter-houses under section 65 had something more than the private interest of the corporation, as debtors, in view-the payment of the debts of the corporation was provided for by other sections. A power to erect the market house, which previously used to belong to the corporation, was given absolutely without any consent at all. It is in respect of the erection of the slaughterhouses that the consent of the corporation is required, and for an obvious reason, because the slaughter-houses might turn out to be a nuisance, and the corporation having charge of what was for the wel fare of the inhabitants of the borough, were entrusted by the 65th section with the power to consent or not consent to slaughter-houses being erected. On that point, when not looking to the public Acts, it is difficult to follow the reasoning of the Court of Exchequer, that the consent required by the Corporation had nothing to do with sanitary purposes. There is no purpose other than the convenience of the inhabitants of the borough to be obtained by the corporation giving

or withholding their consent, and it is certainly difficult to consider the consent to be given under the 65th section as given otherwise than with reference to those considerations.

Now it is necessary to turn to the public Acts for the purpose of tracing the power which the corporation had to give a license for the erection of a slaughterhouse apart from the privilege, so to speak, contained in the local Act of 1862. In the session of 1847, two Acts were passed relating to slaughter-houses, the 10 & 11 Vict. c. 14, called The Markets and Fairs Clauses Act, 1847 (incorporated as I have already said in the Local Act of 1862), and the 10 & 11 Vict. c. 34, called The Towns Improvement Act, 1847. By the 125th section of this latter Act the commissioners appointed under the Act may license such slaughterhouses and knackers' yards as they shall from time to think proper. The 126th section enacts that no place shall be used or occupied as a slaughter-house or knackers' yard within the said limits which was not in such use and occupation at the time of the passing of the special Act, and has so continued ever since, unless and until a license for the erection thereof, or for the use and occupation thereof as a slaughter-house or knacker's yard, have been obtained from the commissioners. That is speaking of both slaughter-houses, and omitting part with reference to slaughter-houses previously in existence. What is the license to be for? It has been hardly suggested that there was to be a separate license for the erection of a slaughter-house, and then a subsequent license for the use of the slaughter-house when erected. It might possibly be so in theory, but practically it would be a subtlety and refinement, interfering with the action of people spending their money on slaughter-houses to such an extent that the construction would not necessarily be adopted. It is a license for the erection, the use and occupation thereof as a slaughter-house, to be obtained from the commissioners. I think that the expression "license to erect a slaughter-house" must, prima facie, be taken to mean to erect a slaughter-house which shall be used as a slaughter-house,

and not that there shall be two separate licenses, one for the "erection," and the other for the "use." It is very true that by the subsequent sections, and especially by section 129, the abuse of the slaughterhouse may lead to its suspension or abolition, and it may be that the license for the use may come into place separately. But when a license is given for the erection of a slaughter-house it means the erection of a building to be used as a slaughterhouse. That is the case which more especially we have to deal with in comparing the 126th section of the Towns Improvement Act, with the 65th section of the Brecon Act of 1862. Now that statute was followed by the Local Government Act, 1868 (21 & 22 Vict. c 98), by which the corporation were substituted for the commissioners. This last Act is to be classed in the same category with the Acts relating to the public health, and has reference to them. By its 24th section, the duty of carrying the Act into operation is to be vested in the Local Board, and that Local Board is to consist of the mayor, aldermen and burgesses acting by the Town Council. Then by the 45th section, the provisions of the Towns Improvement Clauses Act, 1847, with reference to certain matters including slaughter-houses, are to be incorporated with this Act.

Therefore, taking the history of the license to erect slaughter-houses under the public Act, it is found that at the time when the Brecon Act of 1862 was passed, the proper persons to grant a license for the erection and use of a slaughter-house were the corporation acting by the town council, and on turning back to the 65th section of the Local Act on which our judgment must hinge, then it was under contemplation that the persons who were to grant the licenses under these respective Acts were the same-the corporation-acting of course in its or dinary course, by the council, the 65th section providing that it shall be with the consent of the corporation certified by writing under the hand of the mayor or town clerk. That was to be acted upon by the council who are to give the consent. We have, therefore, the same persons to give the consent, the same per

sons to receive the consent and the thing consented to or licensed, namely, to erect a slaughter-house thereon. The language used is somewhat different, but the effect of the language is precisely the same, because the language of the Towns Improvement Act is "license to erect a slaughter-house," that of the 65th section is "consent to provide and maintain slaughter-houses," which under the Act were to be used, as appears by the section to which reference has already been made. We have, therefore, the tenor of the license the same, the effect of the license the same, the language the same, the clauses the same and the object the same, for which the corporation had intended to give the consent under the 65th section; because if they had certainly one object and no other be presented, one naturally assumes them to have had the object which one can see, we need not cast about for some possible undiscoverable object, when the palpable object is to consult the public convenience. It seems therefore to result, necessarily, from a comparison of the two sections as to what is to be done, and what has been done under section 65, that the consent given under that section did include a license under section 125 of the Towns Improvement Act.

Now the way in which this question was reserved at the trial ought to be looked at. The question was reserved whether there ought not to have been a license from the corporation as a local board of health; and the question so reserved ought to be strictly regarded, and looking to the question that was reserved it does not appear that the consent given under section 65 is a license under section 125. Whether the provisions of section 125 as to the use of the slaughter-house after it has been once set up are to apply to this Act or not, whether the Brecon Markets Company are entrusted with the privilege to govern their own slaughterhouses, or whether they are to fall under the jurisdiction of the public commissioners or the corporation as the debtors under section 129 of the public Act, are questions upon which it is unnecessary to give a precise opinion; and considering that the persons who constitute the company appear to have been recognized by the

Act of 1862, as persons interested in the welfare of the borough, it would be perhaps improper now to pronounce a conclusive opinion upon the question. Very likely the conduct of the market will decide that. No one having an interest to interfere in the carrying on of the market would be desirous to interfere if it is properly carried on; but whether they are to use it with the consent of the borough is the simple and the only question upon which we are to pronounce our judgment. It may be so used, and the judgment of the Court of Exchequer to the contrary effect ought to be reversed.

BLACKBURN, J.-I agree with my brother Willes in the result. The effect of these statutes is that where there is a borough having a municipal corporation in which the "Towns Improvement Act" and the "Local Government Act " have been adopted, no new slaughter-house can be set up without a license to erect and use being granted by the Local Government Board, which is the corporation acting by the Town Council, and though they are subject to a good many provisions in the Towns Improvement Act for that control, the most important of which are contained in the 129th section (by which in case of abuse the slaughter-houses may be abolished), yet new slaughter-houses may be erected and used when the license is so granted, Now when these Acts have been adopted in a borough, and subsequently by a private Act incorporating the Markets and Fairs Clauses Consolidation Act, a trading body is permitted to set up a market, and in the private Act there is a clause allowing them to set up slaughter-houses-whether this gives the new body not only a right to erect slaughter-houses, but also the monopoly of the slaughter-houses, and whether the body who are empowered under the local Act to erect a new slaughterhouse of this sort, are to any and to what extent under the control of the local board under the Markets Clauses Consolidation Act, are questions of considerable importance, and I am anxious to point out that we do not decide them one way or the other. The question here is whether the license of the Commissioners or Local

Government Board, being the corporation acting by their council, is or is not included in a consent to erect and use a slaughter-house under this special Act, which says the Company may provide and maintain it with the consent of the corporation. I think the consent of the corporation to provide and maintain slaughter-houses is equivalent to a license given by the corporation (who stand in the place of the commissioners) to erect a new slaughter-house; and our judgment amounts, therefore, to a reversal of the judgment of the Court below.

KEATING, J., MELLOR, J., LUSH, J., and BRETT, J., concurred.

Judgment reversed.

Landlord and Tenant-Personal Covenant-Distress for Rent-Power to Distrain on Lands of Lessee other than the Land demised.

A proviso in a lease of a seam of coal under certain lands therein described, empowered the lessor to distrain for rent the chattels, effects, goods, &c. employed upon or under the said lands, in connexion with the working of the coal, as well within the limits of the said lands, as also in, or under or about any other lands in which there should be any pits or openings, through which the coal demised should be for the time being in course of working by the lessees, their executors, administrators and assigns, and for that purpose to enter into and upon such other lands: -Held, that such a proviso or covenant could not attach to land in which the lessor had no interest, and that he could not by virtue of it distrain on any "such other lands" after an assignment of the lessees' interest therein.

The first count of the declaration was for breaking and entering the plaintiffs' lands in the parish of Llanelly, in the county of Carmarthen, and carrying away their fixtures and goods. Second count for carrying away the plaintiffs' coal trucks, iron pipes, weighing machines, ropes, carts, wheels, &c., baskets, furniture, horses and harness, and disposing of the same to the defendants' use.

Fifth plea on equitable grounds, to the whole declaration, that the defendant, J. S. C. Stepney, by deed demised to Thomas Harris and others (hereinafter called the lessees) their executors, administrators and assigns, all so much and such parts of a certain vein or seam of coal and culm, as were situate under certain lands delineated in a plan drawn in the margin of the said deed (thereinafter called “the said described lands "), to hold the same for the term of forty years from the 26th of March, 1869, subject nevertheless to the payment by the said lessees upon certain days in the said deed mentioned, of the several rents, royalties and sums of money thereby reserved. And it was provided by the said deed that in case all or any of the rents, royalties and sums of money by the said deed reserved or made payable should be unpaid in part, or in the whole by the space of twenty-one days next after the same should have become due and should have been demanded, then and in every such case it should be lawful for the reversioner, that is to say the defendant, by himself, or his agent or servant, or by any person by him or by his surveyor, or his agent, in such behalf authorised, to distrain all and every or any of the coal, culm or materials, and also the horses, gins, engines, whimsies, waggons, carts, ropes, rollers, tools, live and dead stock, utensils and materials, goods, chattels and effects employed upon, under, about or in connexion with the said works, as well within the limits of the said described lands or any part or parts thereof, as also in, upon, under or about any lands other than the said described lands in which there should for the time being be any pits or openings by or through which the coal or culm by the said deed demised, or any part thereof, should for the time