v. c. WOOD'S COURT.

separate use for her life, with ultimate remainder to her trustees or administrators. After the marriage, the husband borrowed 10004, and his wife and her trustee respectively appointed and assigned the estate to the lender, in consideration of the sum of 10007. paid to the husband and wife. The husband coveanted to repay the money and interest, and the prois for redemption was in favour of the wife, her executors, administrators, or assigns. The receipt for the consideration-money was signed by both husband and wife. Mr. Carmichael, two years after, died, having made his will and appointed his wife execu. The suit was then instituted, and the common order was made. After this order was made, Mrs. Carmichael, out of the assets of her husband, paid of the mortgage-money and interest, and took a reonveyance of the leasehold property to herself. pon the production of the executrix's accounts before the chief clerk, she claimed to be allowed the l and interest as a proper payment, and supported her claim by an affidavit alleging that, although the mortgage was made as upon a joint payment of the 1000l. to her and her husband, and hough the receipt indorsed upon the mortgage was signed both by her and her husband, yet in point of fet the whole money was received by her husband, and applied by him to his own purposes, and not in payment of any of her debts contracted before the marriage.

The chief clerk, however, disallowed the claim, on the ground that the payment was made by her after the order for the administration of the estate; and the point was adjourned into the court, For the wife it is contended that, as the property was her own for For life, and as the money borrowed was applied for the benefit of her husband, the mortgage was only a pledge by way of suretyship for him, and therefore She was entitled to retain out of his assets sufficient to free her estate from the charge. For this proposition the case of Bagot v, Oughton, 1 P, Wms. 347, was cited. There, although it was held that, where a woman before marriage mortgages her property, and then marries, and her husband enters into a covenant to pay the money, his estate is not liable to pay, yet it would be otherwise if he had received the money and here Mr. Carmichael did receive the whole 1000Z In Astley v. The Earl of Tankerville, 3 Bro. C. C. 545, a mortgage-debt, secured, in effect, on the wife's estate, was held to be the husband's bt. The following cases, among others, were also cited and commented on: Lord Huntington's case, 1 Bro. P. C. 1; Pocock v. Lee, 2 Vern. 604; Robinson Gee, 1 Ves, sen. 252; Copis v. Middleton, Turn. & Bass. 221; and Lancaster v. Evors, 10 Beav. 266.

behalf of the creditors it was argued that the hole point was conclusively settled by the cases of Tate v. Austin, 1 P. Wms. 264; and Clinton v. Hooper, Ves. jun. 173. In the former case, the decision was hat, where a husband mortgages the wife's estate 1 dies, the mortgage is to be paid out of the peronal assets, but only after the husband's debts, even y simple contract, are paid, in preference to the ortgage-debt; and then many of the cases now reed upon on behalf of the wife were cited. In the se of Clinton v. Hooper, it was held that, where it is roved that the debt is the debt of the husband, his rsonal estate is bound to pay it in the first instance; at then the wife is not to be repaid in preference to "onerous creditors." In conclusion, the case of silv. Lister, 10 Hare, 140, was relied upon for the editors, where, although the point was one of mainmance out of a wife's estate, the whole doctrine of e court was reviewed incidentally.

The VICE-CHANCELLOR.-I will consider the case, d state whether I require to hear a reply. June 1.-The VICE-CHANCELLOR.-I don't think it cessary to hear a reply. The point, which is in stance pretty clear upon the authorities, is, wheer a married woman who has leasehold property to r separate use, which is mortgaged for the husd's benefit, has, when the debt is discharged, a ht to get her estate exonerated as against the uple contract-creditors out of the husband's assets. he only difficulty arises from Tate v. Austin and ton. Hooper. The law is perfectly clear, except to her position with regard to creditors after her sband's death. The application of the money Esed-as to whether it was applied to pay the wife's bts, or debts affecting her estate before marriageopen for explanation by evidence; but, in the abce of such evidence, her estate is treated as a rety, of which position she has all the benefit. The int, as between creditors and the wife's estate, has rer, apparently, called for a decision. Lord Thur,in Clinton v. Hooper, observes, when speaking of d Kinnoul v. Money, that the court shall not infer equitable assumpsit, contrary to the tenor of the igation subsisting between husband and wife; and at is said in Tate v. Austin as to the wife being stponed to all the other creditors of the husband, is rely a dictum, and not altered by the fact of the e having been affirmed in the House of Lords. So Clinton v. Hooper, where the wife had so acted as to ive her claim to exoneration; and the present point s not material for decision. Whatever, then, may the ultimate decision as to the law on this subject, ere the court recognises the wife as a feme sole from

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her having property settled to her separate use, she is perfectly competent to deal with it; and there would be no difficulty as to assumpsit, which would arise as much as in the case of a stranger, in whose position she stands, though it would be difficult to say why she has this right, except by assumpsit. The heir could not assert his right against legatees; she can, and is, therefore, in a better position. The present case is very like that of Parteriche v. Powlet, 2 Atk. 383. The cases of Copis v. Middleton and Tidd v. Lister do not conclude this question; for in Copis v. Middleton the point was that, where two persons execute a bond, the one as principal, the other as surety, and no other assurance is executed at the time, the surety paying the bond is only a simple contractcreditor of the principal; but Lord Eldon said there that, had there been a mortgage, the surety would have been entitled to stand in the place of the mortgagee; and in the case of Tidd v. Lister the point now in dispute did not in any way arise. I am of opinion that the widow of Mr. Carmichael is entitled to stand in the place of a specialty-creditor for the mortgage-debt, and the certificate will be dealt with accordingly.

Common Law Courts.

COURT OF QUEEN'S BENCH. Reported by ADAM BITTLESTON and JOHN THOMPSON, Esqrs.

Barristers-at-Law.

Tuesday, May 30.

REG v. THE TRUSTEES OF THE WORTHING AND LANCING TURNPIKE ROADS. Contribution out of highway-rates to the funds of turnpike trust-What is a turnpike-road within 4 & 5 Vict. c. 59-Public Health Act-Duties of local board as surveyors of highways.

By a local Act, entitled An Act for maintaining "a turnpike-road," and sea defences for protecting such road, and the lands adjoining, from the encroachments of the sea, power was given to trustees to make and maintain the road as a turnpike-road, and to take tolls thereon, and to erect sea defences for the protection of the road and the adjoining lands, with power to assess upon the owners of such lands annual taxes, which, together with the tolls, were to be applied to the general purposes of the trust:

Held, that the road so maintained was a turnpike-road within the operation of 4 5 Vict. c. 59. By a clause in the Turnpike Act all the powers of the commissioners, under a local Act for the government of the town of W., were preserved, "except that the commissioners should thenceforth be discharged from the expense of maintaining so much of the turnpikeroad as was situate in the town of W.": Held, that that provision did not exonerate the town of W. from liability to contribute to the repair of the road in case of the insufficiency of the funds of the

trust.

When a town, which is part only of a parish, becomes a district under the Public Health Act, the two parts are entirely distinct for the purpose of contributing to the repair of turnpike-roads, as well as for that of repairing the general highways. Within the district under the Public Health Act the local board are the surveyors of highways, and they may be ordered to contribute, and may make a highway-rate upon the district, for the purpose of contributing to the funds of a turnpike trust, pursuant to 4 & 5 Vict. c. 59. Within that part of the parish not included in the district, the parish surveyor may be ordered to pay out of the highwayrates raised upon that part of the parish.

This was an appeal against an order of two justices of the western division of the county of Sussex, dated 22nd June 1853, whereby it was adjudged and ordered that a certain portion, to wit, the sum of 2501., part of the rate or assessment to be levied by virtue of stat. 5 & 6 Will. 4. c. 50, in the said parish of Broadwater, should be paid by the surveyor or surveyors of the highways of the said parish unto the respondents, or unto their treasurers, on or before the 1st Aug. next, to be by the said respondents wholly laid out in the actual repair of such part of the said turnpike-road as lay within the said parish of Broadwater. The said order was quashed subject to the opinion of the Court of Q. B. on the following case.

The hamlet of Worthing has always been comprised within and formed part of the parish of Broadwater. In 1821, by a local Act (1 & 2 Geo. 4, c. 59), certain commissioners were appointed for the general management of Worthing aforesaid, therein called and constituted the town of Worthing; and it was thereby enacted (sect. 3), that the said town should be coextensive with the said hamlet of Worthing, and that it should, notwithstanding the said Act, continue to be part of the parish of Broadwater and be subject to and charged with all rates, tithes, and other payments whatsoever, as part of the said parish in like manner as before the making and passing of the said

Act.

By sect. 30 of the said Act it was enacted that when and as soon as any of the streets, lanes, ways, passages, and places within the said town, which before the passing of certain other Acts relating to the

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management of the said town, and which were thereby repealed, were repairable by the surveyors of the highways of the said parish of Broadwater, should be repaired and amended by the commissioners of the said town, the said surveyor should, yearly and every year thereafter, so long as the said streets, lanes, ways, passages, and places should be kept repaired and amended by the said commissioners, pay or cause to be paid to the said commissioners a proportionate part, according to the respective lengths of such streets, lanes, ways, passages, and places, and of the other parts of the highways in the said parish, of the highway-rate annually raised in the said parish. Within the limits of the said town of Worthing, so defined as aforesaid, is a certain ancient road or public highway leading from Warwick-buildings in the said town towards the Horse Shoes inn in the parish of Lancing, which was repairable by the surveyor of the highways of the said parish of Broadwater prior to the passing of the said two Acts so repealed as aforesaid. In 1826 an Act of Parliament was passed, 7 Geo. 4, c. 59, intituled "An Act for maintaining a turnpikeroad from Worthing to Lancing, in the county of Sussex, and groynes, embankments, and other seadefences for protecting such roads, and the lands adjoining, from the future encroachments of the sea,' whereby, after reciting that many parts of the said road had of late years been frequently injured and rendered impassable by the overflowing of the sea, and certain lands adjoining such road, and situate in the said town of Worthing, and in the parishes of Broadwater, Lancing, and Sompting, and the hamlet of Cokeham, all in the said county, had been likewise damaged by the same means, and that the said roads and lands were still exposed to similar accidents; and that it was expedient, for the benefit and convenience of the public, that such road should be in some places diverted, widened, and raised, and that the said road, as well as the said lands, for the benefit of the owners thereof, should be effectually protected from the future overflowing and encroachment of the sea by groynes, embankments, and other sea-defences, and that the same should be made a turnpike-road; certain trustees were appointed for carrying out the objects of the said Acts, and powers for making and maintaining the said road, and for taking and regulating tolls, were given to the said trustees, and their successors, together with power to erect groynes, embankments, and other sea-defences, and for the protection of the said lands, to levy and assess upon the owners thereof annual rates, to be applied with the said tolls to the general purposes of the said trusts.

And it was also thereby provided and enacted (sect. 57) that nothing in that Act contained should extend or be deemed or construed to extend to prejudice, diminish, alter, or take away any of the rights, powers, or authorities vested in the commissioners for the time being, acting under the authority of the said Act of the 1 & 2 Geo. 4, c. 59, but all the rights, powers, and authorities vested in them should be as good, valid, and effectual as if the said Act now in recital had not been made, save and except that they the said commissioners should from thenceforth be discharged of and from the expense of making and maintaining so much of the said road as was situate within the said town of Worthing, and of making and maintaining groynes, embankments, and other sea-defences for the protecting of the same.

The said road was accordingly converted into a turnpike-road, and was widened, raised, and diverted in pursuance of the provisions of the said Act. The whole of that portion of it which forms the subject of the said order of justices, lies within the limits of the said town of Worthing, and from time to time during the last six years has been damaged by the encroachment of the sea; and at certain points the road itself has actually been carried away, and a new portion of road was in the winter of 1852 substituted. The surveyor of the said parish of Broadwater has annually paid, since the passing of the Worthing Town Act of 1 & 2 Geo. 4, a certain sum of money to the commissioners of the said town out of the general highway-rate of the said parish of Broadwater, as and by way of contribution towards the expense of repairing such parts of the highways lying within the limits of the said town as the said commissioners had taken upon themselves to repair; and the said surveyor has, from the year 1834, paid to the said respondents the yearly sum of 277. 10s. up to the month of Nov. 1852, when such payments altogether ceased.

In the last-mentioned year, 1852, by an Act of Parliament, the town of Worthing, as a district, was brought within the provisions of the Public Health Act 1848, and a local board was appointed, which, it was declared (sect. 117), should within the limits of their district, exclusively of any other person whatever, exercise the office of the surveyor of highways, and have all such powers, authorities, duties, and liabilities as any surveyor of highways in England was then or might thereafter be invested with or be liable to by virtue of his office, by the laws in force for the time being, except in so far as such powers, duties, or authorities were or might be inconsistent with the provisions of that Act; and the inhabitants of any district should not, in respect of any property situate therein, be liable to the payment of highway-rate or other payment not being a toll, in respect of making

to the payment of any rate, it seems to us quite impossible to hold that the former powers of the surveyors of the entire parish prevailed, so that they could make a general rate on the inhabitants of the parish including the district, for, any repair of any part of the road situate in the district; and if the whole parish cannot be made to contribute as to what lies within the district, it would be manifestly anjust to that part of the parish out of the district that the whole parish without the district should be taxed for the repair of the road within it. The only way to carry out the intention of the Legislature appears to us to be, by holding that the two parts of the parish become entirely distinct for the purpose of contributing towards the repair of the turnpike-roads, as well as for that of repairing the general highways; and we see no difficulty in the local board being ordered to make compensation, under the 4&3 Vict, in case of the deficiency of the turnpikerates. It will be sufficient for the decision of this case to say, that the powers of the parish surveyor to levy a rate upon the inhabitants for the repairs of the district have gone. We think it right to say, with reference to the questions proposed to us, and for the future guidance of the parties, that we think the local board of health may well make a highway-rate for the purpose of raising such a contribution as this. Their powers as surveyors within the district seem amply sufficient for the purpose. It will be seen that the effect of our decision in this and the Norwich case is, that, while the expenses of paving and doing other repairs to the streets and highways, which is expressly made a charge upon the local board by the Public Health Act, are in that case to be defrayed out of the general district-rate, any sum to be paid by way of contribution towards the deficiency of the turnpike funds under the 4 & 5 Vict. is to be raised by the local board as surveyors, by a highway-rate. This is ia conformity with an observation of the late Mr. Lawes, a most sensible and learned man, in the notes to his edition of the Health of Towns Act, and in one of which, under the note in p. 152, after stating the difficulties that had arisen, he comes to the conclusion that the expense of repairing and dealing with the streets, including highways, expressly charged on the local board by the Act, are to be defrayed out of the district-rate; while in p. 157, he observes that the local board may still make and levy highway-rates for purposes other than the matters thrown on the district-rate mentioned in the Act. The raising a sum of money for a contribution towards the repair of a turnpike-road seems a matter for which the local board would have to resort to the powers of rating under the Highway Act, transferred to them by the 117th section of the Health of Towns Act. The order of the justices in question having been made against parties having no funds applicable by law to the matter in question, and no power to raise such a fund, is bad; and the Court of Quartering to its charter, it falls within the exemption given Sessions was right in quashing the order. Our judg ment is, therefore, that the order of sessions quashing the order of justices be confirmed.

for life, with certain privileges. A fellow is entitled to a personal admission, with two friends, every day. He may also give written orders to two persons, instead of a personal introduction, on Saturdays; and on Sundays he may take two persons with him, and give two written orders for admission; he is also entitled to twenty tickets, each of which will admit one person; and on payment of 102 the fellows may have a transferable ivory ticket for two, available during the whole period of fellowship. On the ordinary weekdays the society admits strangers, on payment of an entrance-fee. Members and their friends alone are admitted on Sundays. Gratuitous admission is often given to charity schools. Students of the Royal Academy, foreign and native artists who are recommended as likely to benefit by the privilege, are also gratuitously admitted. The society sells skins, and also, at times, animals; and in one year, from such sales, realised as much as 7241. There are refreshment-rooms in the gardens, where confectionery and refreshments are provided; and, for the privilege of selling refreshments therein, a Mr. Masters pays an annual sum of 4001., with an additional sum if the visitors to the gardens exceed a certain number. The society allowed a Mr. Gould to erect a building on the grounds for the exhibition of humming-birds, and for the admission to see them the public was charged a certain sum, half of which went into the funds of the society. Part of the gardens, about three acres, not at present required for the animals, are laid out as a flower-garden, and there are greenhouses, pits, and other premises thereon, for the preservation of the garden-stock. A band of music attends in the gardens on every Saturday in the months of June, July, and August, and performs from four to six p.m. each day. Evening meetings of the society are also held. On such occasions tea and coffee are supplied to the members and their friends present. There is a rule of the society that no dividend, gift, division, or bonus, shall be made by the society among any of its members.

Wednesday, May 31.

REG . THE ZOOLOGICAL SOCIETY. Rating-Pour-Scientific society-6 & 7 Will. 4, c. 36Zoological society.

A zoological society occupied grounds and buildings for housing the animals, &c., and for the residence of keepers. Part of the ground was cultivated as an ornamental flower-garden. Refreshment-rooms, for the members and visitors, were built on the grounds; and a party paid an annual sum for the privilege of selling the refreshments therein. Music also was performed at a certain season of the year. The income of the society was derived from the fellows and members, who paid either annual sums or compositions in lies thereof, and from the admission-money of strangers, the sale of animals and skins, and of books of the proceedings of the society. The fellones and members had the free privileges fo introducing friends to the gardens and meetings of the society. Held, that this was not a society for the purpose of science exclusively, supported by voluntary contributions, within the 6 & 7 Vict. c. 36, and therefore not exempted from rating.

This was an appeal under the 6 & 7 Vict. c. 36, by The members of the Zoological Society, against rates or the relief of the poor imposed by the parishes of Marylebone and St. Pancras on the appellants. The sessions confirmed the rates, subject to the opinion of this court upon a case, which stated that the ociety was incorporated in 1829, for the purpose of The advancement of natural science. It occupies bout twenty-five acres of land in the Regent's-park, partly in the parish of St. Marylebone and partly in St. Pancras; and has thereon buildings for the abitations of animals, portions of which buildings are fitted up and used as the residences of keepers. It has also aviaries for rare and curious birds, and a museum for stuffed birds and animals. The management of the society is in a president, treasurer, secretary, and council, consisting of twenty-one fellows, elected by the members at large. Each fellow or member of the society pays an annual sum of 31. for his privileges; but there is also a class of fellows who pay one sum of 304, which constitutes the person paying a fellow

Pashley, for the respondents.-First, this is not an occupation by the society exclusively for the purposes of natural science. It is plain the gardens are rather a place of public amusement and resort, than one for the exclusive cultivation of science. Secondly, there is an underletting, from which the society derives part of its income. Masters could not be rated, because he does not occupy the refreshment-rooms; he only pays an annual sum for the privilege of selling refreshments in the rooms which are in the occupation of the society. So also with respect to the building of Mr. Gould; that was in the occupation of the society, and he gave up half the admission-money to the society. Thirdly, the payments by the fellows and members are not voluntary, but they are made to obtain personal advantage for themselves and friends.

Willes, contrà.-If this society is carried out accordby the 6 & 7 Vict. c. 36. There is a rule of the society that no member shall derive any pecuniary benefit from the society. It is admitted that there is amusement combined with the objects of the society; but so there is in every chemical or philosophical lecture. The society does not cease to be a scientific society on that account; nor does this fact deprive it of the exemption from rates given by the above statute.

Lord CAMPBELL, C.J.-This is a society deserving of the highest commendation, and one which does contribute most essentially to the purposes of science; but it is not a society under the Act of Parliament entitled to exemption from rating. The society does tend very much to the advancement of science: but can it be said that that is the sole object of the society? Although the society has science in its contemplation, its great object is the amusement of the people in a rational and most laudable manner. If I am called upon to decide, I should say that it is not a society instituted for the purposes of science and supported by voluntary contributions within the meaning of the Act. The contributions are made in respect of the amusement derived by the members, their families, and friends; and it is a good bargain for them. Then, again, these premises are not used exclusively for the purposes of science. They are not let off, as in the case of the Linnæan Society, to persons who might be rated in respect of what they occupy; nor is the present occupation of them ancillary to the purposes of science. I am therefore of opinion that the claim to exemption is not made out.

ERLE, J.-I am also of opinion that this is not a society within the exemption given by the Act. The society has done great good in giving a predilection to scientific pursuits, and is a society for an excellent purpose; but the premises are not occupied exclusively for the purposes of science. The contributions by the members are not voluntary within the meaning of the Act if there is value received for them. There are private conveniences derived by the members and their friends, and I therefore think the contributions are not voluntary.

CROMPTON, J.-I am of the same opinion. I am very glad that the society does not confine itself to a mere scientific purpose, and that it affords rational recreation to the people. It seems to me to partake rather of the character of a place of rational amusement and recreation than the character of a society

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exclusively for the purposes of science; and I think it is not a society which can claim exemption from rating under this Act. Rate confirmed.

Thursday, June 8.

THE TRUSTEES OF THE RIVER LEA v. THE NEW RIVER COMPANY. Construction of statutory arrangement for supply of water from the river Lea to the New River. This was a special case on the construction of a statutory arrangement between the plaintiffs and defendants, which was argued Tuesday, May 30, by Sir F. Kelly, for the plaintiffs; Sir F. Thesiger, for the defendants. Cur. adv. vult.

Lord CAMPBELL, C.J., now delivered the judgment of the court.-We are of opinion that the verdict ought to be entered for the plaintiffs upon the plea of not guilty in respect of the alterations alleged to have been wrongfully made by the defendants, both above and below the Marble Gauge, whereby they abstracted more water from the river Lea than they were entitled to. This case is not in any degree governed by the rules or decisions which regulate the rights to the water of a river between the riparian owners and co-proprietors. The defendants have no claim whatever to the property in, or to the use of any particle of water in the river Lea, except what they have obtained by the agreement confirmed by the statute 12 Geo. 2, c. 133. The preamble of this Act recites, "that it had been agreed that the navigation between Hertford and Warebridge might be fixed and ascertained in the present channel, and that the quantity of water which was to be taken from the river Lea to the said New River might be ascertained in the manner and upon the terms and considerations thereinafter mentioned." A limited and defined supply of water was to be furnished from the river Lea to the New River Company, upon the terms and considerations which the agreement was to specify. Accordingly, section 5 describes with great minuteness the works and machinery to be employed for this purpose, to the intent that the said company shall for ever after be supplied with a constant quantity and body of water, of the dimensions aforesaid, and no more, to run and pass from the said river Lea into the said New River, in a natural course, without any at the said gauge or trough; and that it shall not be lawful to or for the said governors and company at any time or times hereafter to take any more or other or greater quantity of water than as aforesaid out of and from the said river Lea, or Manford Ditch aforesaid, between the towns of Hertford and Warebridge, by or through any other passage, ditch, or cut, or in any other manner than in

this Act is mentioned." The other enactments of the

statute seem to show that the company were to maintain the works and machinery as described, and not to alter them, so as to take any more or other or greater quantity of water than as aforesaid; but by the defendants' alteration above the marble gauge stated in the special case, and delineated on the plan, the channel for conducting the water from the marble gauge was straightened, widened, and deepened, and thereby the water, probably in greater volume, was drawn off from the river Lea, and certainly in a manner different from that provided for by the Act orgParliament. The jury found that very nearly the same amount would have flowed without these alterations; and that there was no damage--which is, in effect, finding that a small quantity, not practically damaging the plaintiffs was taken. The quantity being minute, and no actual damage having been occasioned, is no answer to the right of action of the plaintiffs in the case of a parliamentary arrangement of this nature when the right of the plaintiffs is affected, and the manner of taking is different from that described by the Act. In the case of Dickenson v. The Grand Junction Canal Company, 7 Exch. 208, it was held that the right of action was not altered by the diminution of the water not having affected the working of the plaintiff's mills, although the defendants were there claiming the right of digging on their own lands, as they clearly might have done but for the arrangement and parliamentary contract settling their right. We are, therefore, of opinion that these plaintiff's are entitled to maintain the verdict for nominal damages on the first part of the case. On the other great question, the material facts found are, that at various places on the river, lower down the stream than the marble gauge, large works were done by the defendants at the bridges, culverts, and banks of the New River whereby a substantial alteration in its force, width, and depth was effected, and additional channels made for carrying away water for the supply of the public and of the metropolis with water; and the effect of these alterations had been that the water has flowed more rapidly along the New River. But they state that the level there is lower, and by reason thereof a greater quantity of water has passed through the marble gauge in a given time than could have passed before these alterations below the gauge were made. We are of opinion that these alterations, producing such effects, are not lawful, and that in respect of them the plaintiffs are entitled to the verdict, with 100% damages, which the jury awarded if they were not lawful. The level being thus lowered at the tail of the

Wither actually or by reputation, a parish, and was man was instituted to the rectory of Mablethorpe therefore entitled to have overseers appointed for it, St. Peter's. From this period, the institutions to the and to maintain the whole of its poor, whether resi-rectory of Mablethorpe St. Mary's are continued to dent in one part of the parish or another, from one the year 1661, after which time it was legally united to the adjoining rectory of Staine; and from the year common fand. Neither of the alleged parishes (of Mablethorpe 1687, down to the institution of the present incumSt. Mary's and St. Peter's), so far as evidence can be bent, the Rev. Thomas Lovick Cooper, on the 9th procared, has ever maintained its poor separately; Aug. 1831, the benefice to which the several rectors bat due rate has always been made for the whole of were instituted is described as Mablethorpe St. Mary the alleged parish of Mablethorpe, and the poor of with Staine. The institutions to the rectory of Mablethe alleged parishes of St. Mary and St. Peter's have thorpe St. Peter's are continued in the same form den jointly and indiscriminately relieved out of such from the year 1491 down to the year 1745; but in the te as one common fund, ever since the passing of institution of the next succeeding rector in the year the 43 Eliz. e. 2. There is no evidence tending to 1761, the benefice is described as Theddlethorpe St. show that at any time the alleged parishes of St. Peter's with Mablethorpe St. Peter, and is so continued Mary and St. Peter ever separately appointed over- until the institution, on the 6th Dec. 1820, of the Rev. sers, or levied rates for the relief of the poor. Two Payne Edmonds, the present incumbent. verseers have yearly been appointed for the whole of the alleged parish of Mablethorpe, The district containing both St. Mary and St. Peter has usually been alled in such rates the parish of Mablethorpe; but the rate for 1777 purports to be made for the town uf Mablethorpe. The churchwardens of the church of Mary's have acted as overseers of the poor of the hole of Mablethorpe. The constable's accounts, in the parish chest of Mablethorpe St. Mary, commencing with the year 1706, describe that officer as constable of the town of Mablethorpe. The roads of St. Mary's land St. Peter have always been maintained, as far as erince goes, by one rate, made for the parish of Mablethorpe, as in the case of the poor-rate; and the surveyors of the highways have always been selected discriminately from the inhabitants of St. Mary and St. Peter, and appointed by the justices to serve the office of surveyors of the highways for the whole of the alleged parish of Mablethorpe, including both

districts.

A few certificates of settlement and bastardy bonds yet exist in the parish church of Mablethorpe St. Mary's, given to the overseers of the parish of Mablethorpe. The eldest is 26th June 1711.

(The case then set out portions of a deed of union executed by the Bishop of Lincoln in 1737, between the parishes of Theddlethorpe St. Helen, and Mablethorpe St. Peter.)

In these books of Institutions both Mablethorpe St. Peter's and Mablethorpe St. Mary's respectively are frequently described as parishes, and frequently as Mablethorpe St. Mary or St. Peter, omitting the word parish. The inhabitants of the alleged parish of Mablethorpe St. Peter's, as far as evidence exists, have not contributed towards the repair of the church situate in the alleged parish of Mablethorpe St. Mary's; but the church-rate that has occasionally been made for the repair of such church has been assessed on the occupiers of land wholly situated in the St. Mary's part of the parish, and on such occupiers alone. The tithes of the rectory of Mablethorpe St. Peter's have been commuted by the rector of Theddlethorpe St. Helen's with Mablethorpe St. Peter; the tithes of Mablethorpe St Mary's have also in like manner been commuted, and are paid to the rector of Mablethorpe St. Mary with Staine.

There are no parochial registers existing of earlier date than the year 1650, the oldest of which is deposited in the church of St. Mary, being entitled "A register of all the christenings, marriages, and burials within the parishes of Mablethorpe St. Mary and St Peter, from the 26th March, 1650." The modern register now in use is headed "Mablethorpe St. Mary and St. Peter, in the diocese of Lincoln, 1810."

that they ought by law to appoint separate overseers, and maintain their poor separately, then this rate to be quashed. If the court should be of a contrary opinion, the rate to be confirmed.

In all county records (which only go back about 100 years) preserved in the office of the clerk of the peace, such as jurors' lists, county rates, &c. there is o mention of any parish but that of Mablethorpe alone. In modern indictments it is the same. Mablethorpe St. Mary and St. Peter's were, by order of the Poor-Law Commissioners, bearing date the The entries in these registers frequently make a 18th March 1837, when the Louth Union was condistinction between the two places, and describe the stituted, included in the Louth Union, and described parties as of the parish of Mablethorpe St. Mary, or in the margin thus “ 36, Mablethorpe St. Mary and of the parish of Mablethorpe St. Peter with TheddleSt. Peter"—and one guardian only has ever been thorpe St. Helen, as the case may be. Two churchppointed or acted for both. This order has always wardens were, from 1601 down to 1712, appointed for been acquiesced in by the inhabitants of both. Ma- Mablethorpe St. Mary; but only one has been apblethorpe St. Mary contains 1780 acres of land, thirty-pointed for St. Peter's, and since 1834 none for St. four houses, and a population of about 261. Mable- Peter's. thorpe St. Peter's contains 1004 acres, fourteen houses, The question for the opinion of the court is whether, and a population of about 260. In the calendarium upon the grounds above mentioned, Mablethorpe St. inquisitonium post mortem, in the reign of Edward I. Mary and Mablethorpe St. Peter's ought by law to apare these entries: Henr. de Saltfleteby Malberthorpe point separate overseers, maintain and manage their ter de Philip de Kyme tenet in Malberthorpe, 14 feod.;" own poor separately, and have separate rates and assessind in the reign of Edward II. there are three entries ments levied on them for that purpose. It is agreed alike nature, where Mablerthorpe is named as by the parties that the court shall have all the power efore, without distinction of St. Mary or St. Peter. to draw inferences and conclusions from the facts in Pope Nicholas's taxation, under the head "Deca- above stated, which a jury upon the trial of a civil stus de Calsworth," appears: "Ecclesia de Mable-action would have. If the court shall be of opinion horpe S. Petri, 41. 68. 8d.; Ecclesia de Mablethorpe Maria, 8" In the Inquisitiones Nonarum, A.D. 341, under the head "Decanatus de Calseworth," is he following entry, "Malb'thorp. The two churches re taxed conjointly (conjunctim). The same assesits render account for 131., received from the ninth of he sheaves, fleeces, and lambs of the parish of falbthorp the two churches whereof are taxed morum parochie de Malberthorp cujus quidem ecclesiæ ratur) at 184 marks, as appears by the inquisition ken by the oath of Alan Ward, &c., and others eir fellows of the parish aforesaid, jurors (et aliorum ciorum suorum parochiæ prædicta juratorum). Of the two churches of the alleged parish of Mableorpe, so mentioned in the Inquisitiones nonarum, one destroyed before the year 1526, and has not been bujit, although Lord Willoughby de Eresby, the atron of that church, by his will dated in that year, Teated as follows:-Item, I will that my executors all in as convenyent and shorte tyme as they possi6 canne, purchas as muche lande as shall be necesfor the buylding and setting upp of a new urche and churchyard, to be made and holie Boden, for the appellant.-The case shows that St. elded at my cost and charge, to the value of CC. Mary and St. Peter are two rectories; and, if two rks within the towne of Mablethorpe, in the rectories, ex vi termini two parishes. [Lord CAMPtie of Lincoln, and that to be paid by my exe- BELL, C. J.-They have always been treated as one.] tors of the issues, revenues, and profits of all my If they were separate parishes when the statute of d manours, lands and tenements, those I have apElizabeth passed, they are so still. No authority inted for the execution of this my last will, in conexists for uniting them, and the cases cited do not eracion that I myselfe take to my own use all such apply, because they apply to the separation of parishies de as the said churche was coveryed with and of into parts. [Lord CAMPBELL, C.J.-Suppose that ich churche I am patron." The Valor Ecclesias- there were two parishes in the reign of King John, 26th Hen. 8, under the general heading Malb-treated as one only in the reign of Edward VI. and pe contains a separate valuation of the two ever since, would they now be two parishes for the purtories of St. Peter and St. Mary. The several pose of maintaining the poor?] If once shown to be stitutions to these rectories, St. Peter's and St. Mary's, two parishes, mere user and acquiescence will not make separately recorded in the book of Institutions re- them one. (He referred to Hilton v. Pawle, Cro. Car. uning in the registry of the Bishop of Lincoln. 92.) the 27th Jan A.D. 1491; Edward Strangways was tituted to the rectory of Mablethorpe St. Mary, d'on the 30th Nov. in the same year, Thomas Kirk

Pushley (with him Flowers), for the respondents.Even conceding that these were two parishes for ecclesiastical purposes, they constitute but one parish for the purpose of maintaining the poor. [Lord ĈAMPBELL, C. J.-If, at the time of the passing of the stat. 43 Eliz. c. 2, this was a reputed parish, that is enough; and the evidence that it was so appears irresistible. ERLE, J.-I never heard of two parishes becoming by usage consolidated into one; though part of a parish may, by the stat. 13 & 14 Car. 2, c. 12, s. 21, become, for the purposes of the poor-law, a separate parish.] The question is, whether the parish was considered as one, and treated as one, when the

stat. 43 Eliz. c. 2, passed: (Nichols v. Walker, Cro. Car. 394; R. v. Clayton, 13 Q. B. Rep. 354; R. v. Newell, 4 T. R. 266; Price v. Quarrell, 12 Ad. & Ell. 784.) [CROMPTON, J.-We are a jury; and there is the usage of 250 years for the status quo.]

Pashley, in reply, mentioned Weeden v. Walker, 2 Roll. Rep. 160.

Lord CAMPBELL, C.J.-I am of opinion that this

QUEEN'S BENCH.

rate should be confirmed, and that there is no reason to disturb the usage which has so long existed in this parish. The evidence is conflicting upon the point whether there ever were two parishes; there is strong evidence that from time immemorial there has been but one parish; there is also evidence of considerable weight that there were two parishes: but I think it is enough for the confirmation of the rate if, at the passing of the statute of Elizabeth, the districts were reputed to be one parish. It was not requisite for the inhabitants, before they availed themselves of that statute, to inquire whether the district was a strictly legal parish; if at that time it was considered as one, the statute applied to it. Then, upon the facts stated, the evidence is as strong as possible that at that time this district was treated as one parish for all secular purposes; it was therefore a reputed parish, and according to the just construction of the statute it is still to be so considered, and ought still to have only

one rate and one set of overseers.

ERLE, J.-I have arrived at the same conclusion, upon an examination of the evidence stated in this case. I can see no clear proof that there ever were two distinct parishes. Two rectories are spoken of; but in some very ancient documents the two rectories appear to be described as being in one parish; and for all secular purposes, as far as living memory extends, only one parish has been recognised. The question is, whether for secular matters they are now to be treated as one parish, and they certainly must be so treated unless it can be shown that they were separate parishes when the statute of Elizabeths passed, of which I see no evidence.

CROMPTON, J.-I am of the same opinion.-It is not necessary for us to say absolutely here whether there ever were two parishes, because there is evidence enough to support the ancient usage, and to justify a jury in finding that there was only one parish. There is an old document in which the place is treated as one parish, with two churches; and that may perhaps afford the true explanation of the matter. There is evidence upon both sides; but the preponderance is, I think, in favour of the respondents. But I am also strongly inclined to think that, even if there were two parishes, and they were reputed to be one when the statute passed, that is enough. The cases in Cro. Car. are important, and support that view. Judgment for respondents.

Thursday, June 15.

JUDKINS . ATHERTON.

Practice-Suggestion-Common Law Procedure ActNeglect of plaintiff to bring cause on for trial. By sect. 101 of the Common Law Procedure Act, if the plaintiff neglects to bring the issue on to be tried at the proper time, the defendant may give twenty days' notice requiring him to bring it on at the next sittings or assizes; and "if the plaintiff afterwards neglects to give notice of trial for such sittings or assizes, or to proceed to trial in pursuance of the notice given by the defendant," the neglect may be suggested on the record:

Held, that the word “afterwards" meant after the giving of the notice by the defendant, and not after the expiration of the twenty days; and that, if the defendunt gave twenty days' notice before the assizes or sittings, he was entitled to enter the suggestion if the plaintiff did not give due notice of trial and proceed to trial at the next sittings or assizes, although they should be held the day after the expiration of the twenty days.

This was a rule calling on the plaintiff to show cause why the suggestion entered by the defendant

under section 101 of the Common Law Procedure Act.

should not be set aside. The action was commenced in June 1852; in Dec. payment of 107. into court pleaded; in Jan. 1853 issue joined and notice of trial given for Liverpool Spring Assizes. The cause, however, was not taken down; but another notice of trial was given for the summer assizes, and it was taken down, but the record withdrawn. On the 21st Feb. the defendant gave notice under section 101, requiring the plaintiff to take it down to be tried at the next spring assizes, which commenced on the 21st March. The plaintiff did not take it down to be then tried, and, the defendant having suggested that default upon the record, the present rule was obtained, upon the ground that by section 101 (a) the twenty days"

(a) Sect. 101.-Where any issue is or shall be joined in any cause, and the plaintiff has neglected or shall neglect to bring such issue on to be tried, that is to say, in town causes where issue has been or shall be joined in, or in the vacation before, neglected, or shall neglect, to bring the issue on to be tried any term-for instance, Hilary Term-and the plaintiff has during or before the following term and vacation--for instance. Easter Term and vacation; and in country causes where issue has been or shall be joined in, or in the vacation before, Hilary or Trinity Term, and the plaintiff has neglected or shall neglect to bring the issue on to be tried at or before the second assizes following such term, or, if issue has been or shall be joined in, or in the vacation before, Easter or Michaelmas Term, then if the plaintiff has neglected or shall neglect to bring the issue on to be tried at or before the first assizes after such term; whether the plaintiff shall in the mean time have given notice of trial or not, the defenthe issue on to be tried at the sittings or assizes, as the case dant may give twenty days' notice to the plaintiff to bring may be, next after the expiration of the notice; and if the plaintiff afterwards neglects to give notice of trial for such