Q. B.]

RIDER (appellant) v. WOOD AND OTHERS (respondent).
Wednesday, Nov. 16.

RIDER (appellant) v. WOOD AND OTHERS
(respondents).

Master and servant

[Q B. pellant had been guilty merely because he may have given an informal notice. [COCKBURN, C.J.-It cer tainly appears to me that the leaving the employment must be with a guilty purpose.] It is not suggested that he acted viciously. The appellant ought Work-not to be punished criminally for a matter which turns upon the legal sufficiency of notice. To constitute an offence under the statute, there must be a guilty intention: (Fowler v. Padget, 7 T. R. 509; the maxim of actus non facit reum, nisi mens sit rea applies; Herne V. Garton, 28 L. J. 216, M.C.)

Leaving employment without lawful excuse-Guilty intent. Under the 4 Geo. 4, c. 34, s. 3 (Masters' and men's Act), a workman who leaves his master's employment upon a bonâ fide belief that his employ ment is regularly terminated, though it has not been so terminated in fact, is not liable to be convicted; and the bona fides of his conduct is a question to be determined by the justices.

This was a case stated under the 20 & 21 Vict. c. 43, upon a conviction of the appellant by certain justices of Flintshire, under the 4 Geo. 4, c. 34, s. 3,

for absenting himself from his service.

Welsby was here called upon, and argued that every absenting of himself without a lawful excuse is an offence under the statute. [HILL, J.-Suppose such a sends a fellow-workman to ask for leave, and he tells him that he has obtained it when he has not, would

case as this a man who has occasion to be absent

this be an absenting of himself within the statute?

wrongful absence, and a knowledge that it is a wrongful absence ?] I think not; it is merely necessary fact. [COCKBURN, C.J.-The Act treats the absence that the absence should be without lawful excuse in as a misdemeanor and offence, and if so, the wellintention. HILL, J.-The Act must not be taken in known principle applies that there must be a wrongful

By the above section it is enacted, that if any artificer, &c. shall contract with any person to serve him for any time whatsoever, and having COCKBURN, C.J.-Must not two things concur-a entered into such service shall absent himself from his service before the term of his contract shall be completed, then it shall be lawful for any justice of the peace upon complaint to issue his warrant for apprehending such person, and to examine into the nature of the complaint, and if it shall appear that such artificer, &c., hath not fulfilled his contract, or has been guilty of any other misconduct or misde-its naked words, for if so a man would be liable if he meanor, it shall be lawful for such justice to commit were laid upon a bed of sickness.] any such person to the house of correction, there to remain and be held to hard labour for a reasonable time not exceeding three months, and to abate a proportionate part of his wages for and during such period as he shall be so confined.

The case

COCKBURN, C.J.-If a man absents himself with a knowledge that his employment is not at an end, he is guilty under the statute; but if he believes that his contract is at an end, and so leaves, he is not guilty The committing justices do not appear to have conIt appeared that the appellant entered into the ser-sidered the subject in this point of view. vice of the respondents as an anchorsmith on the 4th Jan. 1859, for an indefinite period, at certain specified prices, determinable on either of the parties giving to the other fourteen days' notice of his intention to determine, the contract, certain rules and regulations to be

observed by the workmen.

"Dated this, the 23rd of July, 1859.

"THE ANCHORSMITHS OF SALTNEY." On the following 6th Aug. the appellant left the employment of the respondents-the request contained in the notice not having been complied with. Thereupon proceedings were taken before justices against the appellant, and he was convicted, and sentenced to fourteen days' imprisonment, with hard labour, with an abatement of 41. from his wages.

Welsty, for the respondents, contended that the notice given on the 23rd July was not valid, and was a nullity, and that the appellant therefore had left without lawful excuse.

therefore ought to go back to them under the 6th sec-
tion of the statute, with our opinion upon this point,
and then they will decide whether the appellant left
the employment in the bond fide belief that he had pr
perly put an end to it, for if he did he would not be
guilty under this statute.
Rule accordingly.

REG. on the prosecution of THE OVERSEERS OF
THE TOWNSHIP OF BISHOPWEARMOUTH V. THE
EARL OF DURHAM.

Poor-rate-Tolls-Anchorage-Beaconage.

The port of Sunderland extends from the bar of the mouth of the river Wear, and low-water mark of the sea up the river about eight miles, including so much of the river as is within such limits, and is in the several adjoining parishes. Any ship entering the river might have to cast anchor. Beacons had been set up and mooring buoys, posts, &c., placed within the port by the officers of the Bishop of Durham, who was the owner of the soil and freehold of the port below lowwater mark, and these were maintained by them for the use of the ships using the port. A payment of 1s. 2d. had been immemorially made to the Bishop called "anchorage and beaconage tolls," by every ship entering the port. These tolls having been assessed to the poor rate:

Held, that they were not tolls in gross, but were connected with the occupation and use of the soil, and were rateable to the poor-rate in all the parishes in which the port was situated, and to which ships paying the toll came, in the proportion of the number of ships coming into each of the parishes respectively.

Atherton, Q.C. and Liddell appeared for the appellant, and Welsby and Davison for the respondents.

The facts and arguments sufficiently appear in the following judgment :

WIGHTMAN, J.-In answering the first question, whether the tolls are rateable, we have to consider whether they are tolls in gross or tolls connected with J. Brown, for the appellant, argued that this being a the occupation of the soil; and this must be determined criminal charge it could not be adjudged that the ap-in the same manner as if the nature of the soil had

Nov. 19, 1859-REPORTS.]

Q. B.]

THE LAW TIMES.

[Vol. 35, O. S.: 1, N. S.-31 THE OVERSEERS OF BISHOPWEARMOUTH. THE EARL OF DURHAM.

the on

one

[Q. B.

been discussed when they were received by the Bishop | There was as strong objection offered to beaconage; but of Durham or his lessees before the 3 Geo. 3, the 6 & 7 the owner of this port does not appear to have erected Will. 4, c. 19, and the 21 & 22 Vict. c. 45-none of beacons within the port, and the anchorage and these statutes having severed the tolls from the soil if mileage show a direct use of the soil within the they ever were connected together. According to the parish and township comprised in the rate; but statement in the case, these tolls have always been if the use of the soil is in part consideration for the taken in respect of ships entering into the port of Sun- payment of the toll, we think this is enough to connect derland. This port begins on crossing the bar at the them with the occupation and use of the soil, and to the tolls called anchorage, which probably were mouth of the river Wear, extends to a bridge near render them rateable. We lately held, in the Runcorn Finnley Park, and comprehends the whole space of the case, river from low-water mark on the north side to low- for the use of the soil, were not rateable, but that was water mark on the south side, and is in several because it was agreed that the corporation of Liverpool, townships on both sides, the appellants, were not owners and occupiers of any contiguous parishes or usque ad medium filum aque. The bishop was the land within the township, the place where the ships owner of the whole soil and freehold of the said port anchored being extra-parochial. Here the soil where side and the ships anchored and the mooring chains were fixed between low-water mark the other side; every ship was within the parish or township of the respondents. low water-mark on entering the port may have to cast anchor there, or to If there be a payment to the owner of the soil by the be moored to some moorings fixed in the river and party who uses the soil, and no other consideration can taken in the river, or on the quays or shores adjacent. be suggested for the payment, must not the use of the The bishop and his lessee maintain the beacons and soil be regarded as the consideration for the payment? moorings in the river Wear. Previously to the ap- The tolls originally connected with the soil may be pointment of the commissioners, the port and the severed from the soil and become tolls in gross. Here affairs and business thereof were managed and con- there is nothing to show such a severance, for the tolls ducted by the Bishops of Durham or their lessees under and the soil have remained united in the same owner. Jeases similar to those granted to the appellants by Counsel for the appellant chiefly relied upon the Swanofficers or others in that behalf appointed or employed sea case, 5 E. & B. There all the tolls, wheresoever by such bishops or their lessees; and by such bishops' collected within the port, were considered to be of the lessees or officers beacons were set up, moorings, buoys, same uniform nature, and part of them being clearly posts and rings were placed and fixed within the port not for the use of the soil and not rateable, this was for the use and benefit of the ships entering the port, supposed to give the same character to the whole. and other works were done for the maintenance of the Rex v. Cook, 5 B. & C. 797, and the other lightport and the use and benefit of ships resorting to it.house cases, were likewise referred to, but they merely The tolls rated have been paid immemorially to the decided that the owner of a lighthouse cannot be rated bishop or his lessee, and they have been called for passing tolls collected out of the parish, as they do anchorage and beaconage tolls, being 1s. 2d. for not constitute part of the annual profits of house or land and in respect of every British ship which enters where the light is placed. The tolls in question, on the was paid, and contrary, constitute part of the annual profits of the the port. Formerly double that sum An objection was made that now by Act of Parliament, in consequence of recipro-land occupied by the appellant within the township, and, city treaties, the same sum is paid on every foreign therefore, are rateable. The tolls are supposed the fore shore, between high and low water mark, did ship which enters the port. forinerly to have been collected by the water-bailiff not belong to the defendant: payments were sometimes appointed by the bishop or his lessee, but are now made to private owners of the fore shore by ships for received by the collector of all the sound dues in the the use of it. How can these conventional payments We are likewise asked by the port of Sunderland, at his office in the Custom-honse made to others for the use of their soil at all affect the there. The tolls appear to have been rated to the nature or the incidents of payments made to the bishop relief of the poor of the parish of Sunderland since for the use of his soil? 1719, but they were not rated in any of the townships first question whether the tolls are rateable in one, or or any part of them in which the port of Sunderland is into which the port of Sunderland extends till 1857. which, of the townships or parishes? We answer, all In that year the ancestor of the appellant, who was then lessee of the tolls, appealed against the rate for the situated to which ships paying the tell come; these parish of Sunderland, but abandoned that appeal and seem to be the parish of Sunderland and the five townagreed with the overseers of Sunderland to be rated ships in which the tolls are now rated. on 1507. Immediately afterwards the five townships other parishes and townships into which the port exnamed in the above case were rated, those tolls making tends, but it is not stated that ships which have paid an aggregate of 4031. 3s. 4d., which, if they are rate- the toll come into those parishes and townships. We able, is admitted to be a fair amount. Taking all these do not think, that in respect to the tolls there is any are of opinion that profitable occupation of the soil of the port within those facts into consideration, we these tolls are not tolls in gross, but are tolls parishes or townships. In answer to the second quesconnected with the occupation and use of the soil. tion, we are of opinion that in the parish and five townThey seem to us to be much more in the nature of ships in which the tolls are rateable, they ought to be dock dues. The bishop was the owner of the soil of rated upon a calculation of the number of ships paying toll and coming into those parts of the port which were parts of the port, and by the outlay of money on various works, he rendered the port safe and commo-within the parish of Sunderland and the five townships dious for shipping, in consideration whereof, by the exercise of the highest prerogative of the Crown, he appears to have been authorised to receive a fixed sum as a reasonable amount for every ship which entered the port. Consuetudines, or tolls, are almost incident to every ownership of a port, and we think are to be considered as payable rationi soli for a benefit conferred, not as a matter of extortion under the colour of law. The toll here is called anchorage and beaconage, but

inst

be considered as covering all the accommodation afforded by the user of the port to the ships which frequent it, as no other payment is inade to them.

There are

respectively, and that they ought not to be rated
according to the frontage or population, neither of which
would afford any criterion for the profits of the soil of
Judgment for the respondents.
the port made within the parish or the township.

RAILWAY COMPANY (apps.) v. WOOD (resp.)
THE MANCHESTER, SHEFFIELD AND LINCOLNSHIRE
viction-8 Vict. c. 20, s. 124.
Railway-Engine not consuming its own smoke-Con-
Act) imposes a penalty upon railway companies using
The 8 Vict. c. 20, s. 124 (Railway Clauses Consolidation

Re MIREHOUSE.-LAW v. FARNELL. Rule nisi for a certiorari to quash an order of justices under the 53 Geo. 3, c. 127, s. 7. for the payment by Mr. Mirehouse of 17. 4s. Old. for arrears of church-rates, and 108. costs.

C. B.]

trial, to set aside the verdict and enter a nonsuit, on the ground that the action could not be maintained by the plaintiff, the bill having been indorsed in blank, and delivered to him not so as to vest the property in him, but for a collateral purpose, namely, to hand it to the bank. A mere transfer of the bill such as this is not enough; the bank must itself indorse the bill so as to give power to sue: (Lloyd v. Howard, 15 Q. B. 995.) In that case Lord Campbell, C.J. observes: "An indorsement requires that there should be a delivery of the bill, with an intent to make the person to whom it is indorsed owner of the bill, a party to the bill, and transferee of property in it." Now, obviously, the plaintiff here does not satisfy such a requirement: (Marston v. Allen, 8 M. & W. 494.) [WILLIAMS, J.-Marston v. Allen was simply a point Lord Ingestre, 12 Q. B. of pleading.] (Bell v. 317.) The defendant is entitled to have a nonsuit entered on the further ground of non-joinder of parties. The 7 & 8 Vict. c. 110, under which the plaintiff stated that the bank was incorporated, is the General Joint Stock Companies Act, and does not apply, banks being expressly exempted from the operation of that statute. Then, if that statement is a mistake, and it should prove that it is the 7 & 8 Vict. c. 113 (the Banking Act), under which the company was forined, then under sect. 22 of that Act the bill must be indorsed in a particular manner, which has not been done. The bill must be indorsed by the manager or public officer on behalf of the bank, and this must be expressed in the indorsement: (Emmett v. Tottenham, 8 Exch. 884.) The bill was taken by the plaintiff' for a particular purpose, to hold it as the property of the for himself nor bank, therefore he can neither sue on as a trustee for the bank. The action could only be maintained by joining all the other shareholders as parties.

ERLE, C.J.-I am of opinion that there should be no rule in this case. It is clear, on the facts before the court, that the defendant, being acceptor, received value for the bill, and that the bill was indorsed and delivered with the intention of vesting the property absolutely in the company. The indorsement being in blank, the company had a right to hand over the bill to any person; and the plaintiff, if he had authority of the bank to sue, was a lawful holder, and therefore entitled to sue upon it. Then, as to his authority to sue, he was the manager of the bank, and had, in the general course of business, possession of the bills, and general In the case last cited authority to sue in such cases. there was neither indorsement nor possession of the bill until after action brought. In the case of Bell v. Lord Ingestre, it was in the nature of a provisional or conditional indorsement, which condition was not complied with. Then, again, as to the point urged by the learned counsel, as to the necessity of joining the remainder of the shareholders with the plaintiff as parties to this action, I think the argument has failed, because the indorsement in blank gave the bank a wider power than he seems to suppose they possessed. For these reasons there ought to be no rule in this case.

WILLIAMS, J.—I am quite of the same opinion. Here the bill was clearly indorsed by a person who intended by that indorsement to pass the property to the banking company, and the property did so pass. That was the argument urged on the point that the indorsement of the bank was necessary. The bank could constitute any person to be holder of the bill, and there is ample evidence that they constituted plaintiff the holder, and so he would have power to sue upon the bill. CROWDER, J.—I am of the same opinion. The jury came to the conclusion upon the evidence that there was authority given to the plaintiff to sue upon the bill. He took the bill for the company, and was by the usual course of business in the possession of such bills for the company, and could sue as the lawful holder.

BYLES, J.-It seems to me that there is no ground It is whatever for this motion. It is clear the bill should be indorsed to some one, and it was indorsed. admitted there were only two persons to whom the bill could have been indorsed-a person acting as agent of Rule refused. the banking company, or a principal-and the plaintiff was one of these.

Thursday, Nov. 3.
STEVENS v. GOURLEY.

that Act.
Metropolitan Building Act-What is a building within

shall be inclosed with walls constructed of brick,
By 18 & 19 Vict. c. 122, schedule 1, "Every building
stone, or other hard and incombustible substance:"
Held, that the words of the above schedule amount to
a prohibtiion against building the walls of wood or
other combustible substance.

considerable size, and likely to last a considerable A wooden structure intended to be used as a shop, of a time, resting on joists, but having no footings or foundations in masonry, and capable of being lifted bodily off the ground by the application of sufficient mechanical power, is a building within the above statute, and a contract to erect such a structure within the limits of the Act is illegal.

Declaration-For money payable by the defendant to the plaintiff for work done, and materials provided by the plaintiff for the defendant at his request, and for money found to be due from the defendant to the plaintiff on accounts stated between them.

Third plea-That the said work was done, and the said materials were provided by the plaintiff, under an illegal contract between the plaintiff and the defendant, made after the Metropolitan Building Act 1855 came into operation, (to wit) on the 5th Dec. 1858, for the erection of a certain building within the limits of the metropolis so defined by the Act passed in the session of Parliament held in the eighteenth and nineteenth years of her Majesty's reign, intitutled “An Act for the better local management of the Metropolis," which building was a new building within the meaning of the said Building Act, and was not within any of the exemptions in the said Act mentioned, which building was agreed by and between the plaintiff' and the defendant, should be inclosed with walls constructed of wood, and not of brick, stone, or any other hard or incombustible substance, contrary to the form of the statute in such case made. And the defendant further says, that the plaintiff, before and at the time of making the said contract, was a builder, and that the said contract was entered into by the defendant at the suggestion of the plaintiff, and that the plaintiff, before and at the time of making the said contract, represented to the defendant that the said building might be lawfully erected, and was not contrary to the law. And that the defendant, when he entered into the said contract, believed the said representation, and did not know to the contrary thereof, and entered into the said contract and allowed the said work to be done, and the said materials to be provided, and stated the said accounts, believing the said representation to be true. And that the said work was illegally done, and materials were illegally provided by the plaintiff in and And the said about constructing the said building, within the limits of the metropolis as aforesaid, with such walls as aforesaid, contrary to the said statute. accounts were stated concerning the money claimed by the plaintiff to be due to him from the defendant under the said illegal contract, and for the said work and materials so illegally done and provided, and the money which the plaintiff alleges was found to be due upon the said accounts was the money so claimed; and that after the said work had been so done, and the said materials had been so provided, and the said accounts had been so stated, the district surveyor gave the

C. B.]

STEVENS . GOURLEY.

[C. B.

plaintiff's sub-contractor, then being the builder en- | Although agreed to before the letters were written, it gaged in erecting the said building, due notice to re- was dated on the 5th Dec., some time after the date of inove the said work within forty-eight hours, (that is to the letters. It was as follows:say) to pull down the said building. And the plaintiff "Specification of works required to be done at No. 1, and his said sub-contractor having failed to comply Bentinck-terrace, Regent's-park, for D. D. Gourley, with the said notice, the said district surveyor caused Esq., M. R. C. S. E. Excavator: To dig out and recomplaint to be made before a magistrate of the police move clay to level of pavement, 16 feet back and 14 courts of the metropolis, duly authorised in that behalf; feet wide, to receive house. Bricklayer: To build and the said sub-contractor was thereupon duly sum- three course of footings and sleeper walls, bed all quarmoned to appear before the said magistrate, according tering in mortar. Carpenter: To erect in wood a to the said Act; and the said magistrate thereupon house, the dimensions to be 16 feet from front to back, duly ordered and commanded the said sub-contractor at 13 feet 8 inches frontage; the height to be to comply with the requisitions of the said notice; and 13 feet frontage and 9 fect from floor to the plaintiff or the said sub-contractor, or the said floor. To be built of quartering 3 × 2, and weatherdistrict surveyor, pulled down the said building, the boarded on outside, also to be match-boarded all over same being necessary for enforcing the requisitions of the inside. Ground-floor joists to be 4 by 2 on the said notice, and for bringing the said building and sleepers 2×3 with 3-inch yellow deal flooring, prowork into conformity with the rules of the said Act. perly laid; also to put ceiling joists 3 x 2, rongh And all conditions precedent, necessary matters and boarded on top and match-boarded under, with one things, were done in that behalf to justify and render skylight in roof, the whole of the roof to be covered necessary the pulling down of the said building, and by with zinc, with proper fall for water, the front to be reason of the premises and of the said work and ma-made with two sashes, with door in centre, with all terials being so done and provided by the plaintiff pilasters, mouldings, &c., as shown on plan, with 14illegally and contrary to the said statute, the defen- inch bead and butt shutters, stall-boards, &c., condant never derived any benefit or advantage whatever plete, on cross partition, to be framed in 14-inch yellow from the said work or materials, or any part thereof. deal, with glass in upper part, with 14-inch framed door in centre, and leave all perfect. Zine work: To cover the whole of the roof with No. 9 zinc, properly solder all joints, eaves, &c. Smith: To provide all cocks, bars, nails, screws, &c. necessary for the completion of the aforesaid works. Painter: To paint the whole of the works in three oils outside and inside, and leave all perfect.

The plaintiff was a builder residing at Castleterrace, Kentish-town. The defendant was a surgeon residing at Wilton-house, Regent's-park. The action was brought to recover the sum of 581. balance of account for work done and materials provided for the defendant at his request. The circumstances under which the claim originated were as follows:

The defendant, Dr. Gourley, being the lessee of a house, No. 1, Bentinck-terrace, Regent's-park, desired to have a shop erected in the forecourt or garden attached to that house; and consulted the plaintiff about it. Several interviews took place, and the defendant at first wished the building to be a brick one, but the plaintiff intimated that a brick building would require a previous application to the Metropolitan Board of Works, and occasion considerable delay, and the cost would be upwards of 1007.; whereas he would put up a wooden one, which would look as well and last as long, and only cost 584, and not require a notice to or permission from either the Metropolitan Board of Works or the district surveyor. During the negotiation the following letters were written by the plaintiff to Dr. Gourley :

"21, Western-terrace, Westbourne-grove west. To Dr. Gourley.

“Dear Sir,—I have just considered and found out a new plan for us to work on in reference to the shop, Bentinck-terrace, which is to build it all in wood; it will be less expensive and answer your purpose just as well, and it will look as well, and then we shall evade the Metropolitan Board of Works, and the district surveyor also. It will last quite long enough for you, and, answer all you require; if you consider it over, and, write me this evening, I will put it in hand at once. Yours obediently, JOHN STEVENS.

Nov. 6, 1858.

"I hereby undertake to complete the whole of the aforesaid works to the satisfaction of Mr. Gourley or his surveyor, as per specification, for the sum of 581. To be completed on the 18th Dec. 1858. "JOHN STEVENS, "21, Western-terrace, Westbourne-grove west,

builder.

"Dated Dec. 5, 1858." The plaintiff employed a sub-contractor of the name of Way to execute the contract. No brick foundations were made, but joists were laid on the ground, and the wooden structure built upon them. Way was summoned before a magistrate by the district surveyor. The plaintiff attended on that occasion, and contended that the building was not within the Act, but Way, without the concurrence of the plaintiff, consented to the building being taken down, no penalty being inflicted upon him. The building was finally removed, and the man who took it away said he drew no nail, but lifted it right off the ground. The jury found a verdict for the plaintiff for 58/. A rule was obtained by M. Chambers, Q.C. calling upon the plaintiff to show cause why the verdict should not be set aside, and a verdict entered for the defendant, on the ground that the contract was an illegal contract, being contrary to the provisions of the Metropolitan Building Act, 18 & 19 Vict. c. 122, and that upon that question the decision of the magistrate was conclusive; or why a new trial should not be granted on the ground of misdirection, it having been left to the jury to say whether the defendant, knowing there were no footings, took to the building.

"P.S.-I think 507. will pay that.-J. S." “Dear Sir,--The plan of building the shop will be a facsimile of what you have; the elevation will be just as I show you on the plan. The Barnard now showed cause.-The question is, only difference will be wood instead of brick-whether a structure entirely of wood, which can be work; you would not know the difference in any other way, and the cost of erection will be 55. I have thoroughly gone into the matter, and therefore assure you it cannot be erected for less.-Yours obediently,

"JOHN STEVENS.

"Nov. 10, 1858." Previous to these letters an agreement was entered into between the plaintiff and defendant for the erection of a wooden house according to a specification.

carried about, is a building within the Act. It is contended that a building within the Act must be on foundations. The test, according to sect. 8, whether a building is to be deemed a new building or not is, whether it is a certain height above the foundations. Where the Act speaks of old buildings it also refers to foundations: a building, therefore, must have foundations. This structure could be, and was, lifted bodily off the ground, and was no more a building than a box would