GROVE, J.-I am of opinion that the decision arrived at by the Justices was quite right and should be affirmed. The main question we are called upon to determine is, whether these premises are either a house or "land within the meaning of the Metropolitan Management Acts. Now I am of opinion that the building in question is a house in the statutes referred to. The building is described in the case as a chapel duly registered as a place of religious worship, but there has been no dedication of the land in perpetuity, nor has the chapel been consecrated according to the rites of the Church of England. In addition to the chapel there are vestries and rooms for the caretaker, and also lecture and schoolrooms underneath the chapel. The only part of the building which could not be used as a house, in its popular sense, is the upper part of it, which is used as a chapel, and concerning which there are provisions in the deed to the effect that it should not be used for any other purpose. There is nothing except the covenant inter partes, and which could be waived by the lessor, to bind the lessee to continue its use as a chapel. I agree with what fell from the Attorney-General during the argument, namely, that parties cannot by mere agreement alter the liability imposed by the statute upon houses and land; otherwise it would be very easy to evade the statute by inserting covenants in a lease, and not insisting on their performance. I do not think, therefore, that any statutory liability of this kind can be evaded by a mere covenant with parties which may or may not be insisted upon.

Now what is the building if it is not a house? It may be called a chapel, but

(7) 40 Law J. Rep. M.C. 214; Law Rep. 6 Q.B. 567.

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that does not prevent the whole building being a house;" and I don't agree that the term "house must be confined to the popular sense of the word. Nor do I agree with the interpretation sought to be put upon Lord Coleridge's judgment in the Exchequer Chamber in the case which has been cited. In The Plumstead Board of Works v. The British Land Company (4) the question argued was whether certain cross roads could be said to be "land," and as such liable to contribute towards the cost of paving a new street. And Lord Coleridge, reverting to Angell's Case (3), expressed the opinion, not that a church was not a "house," but that it was not a "house" for the purposes of the Act. And why? Because it could not be used for the purposes for which a house was used, but was consecrated and so dedicated to permanent and unalterable uses. And the same distinction was taken in Robson v. Hyde (6). The reason is not because the consecration was for religious purposes, but because, by the effect of consecration, the domination, so to speak, over the building was removed from the owner; and, being so removed, the building was no longer a house in the ordinary sense. This case, therefore, does not fall within the principle of Angell's Case (3). The distinction is very clearly pointed out by Lord Mansfield in the passage read by the Attorney-General during the course of the argument.

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It is no doubt difficult to define exactly what a house is. I suppose a wall, for instance, is not a house. There have been numerous cases under the Registration Acts which throw light on what is and what is not a house within these Acts. But we are not now considering the Registration Acts, and a building, in my judgment, may well be a "house for the purposes of the Metropolitan Management Acts, though it may not be a "house" under the Registration Acts. When I look at the object of the statutes I feel no hesitation in holding that this building is liable to be assessed. There are caretaker's rooms, lecture and schoolrooms, and there is nothing to prevent the tenant from receiving money for the use of these rooms. I see nothing

Caiger v. Vestry of St. Mary, Islington, Q.B. therefore to prevent such a building as this coming within the fair meaning of the word "house"; indeed, I don't know what other term can be so aptly applied to it. If I should call it a chapel I should misdescribe it, because the legal meaning of the term " chapel" is a chapel of the Church of England. Therefore to call it a chapel" would not make it the less a "house." Then arises the question, whether this case more properly comes within 18 & 19 Vict. c. 120. s. 105, where "houses " alone are spoken of, or "land" within 25 & 26 Vict. c. 102. s. 77. Now

I am of opinion that if the building was not a "house" within the former Act, it comes within the 77th section of 25 & 26 Vict. c. 102; and though in the latter case the quantum of assessment might be affected, we are not asked anything as to that; under whichever statute, therefore, the liability arises, my judgment would be the same. As regards the quantum, I will only say I don't agree that if the case falls within section 77 of 25 & 26 Vict. c. 102, the land ought to be assessed as bare naked land; but I think it may be valued with its accessories, and is therefore liable to be rated higher than mere agricultural land.

The only remaining question is, whether the parties are "owners" within the meaning of the statute. I think they are. There is nothing save the agreement, which the parties are not bound to enforce, to prevent the premises being let at a rack rent. I don't think the lessees hold it themselves at a rack rent, but at a rent under the rack rent; but even if it were otherwise, still, if they had the power to receive a higher rent for it (and they have such a power but for the agreement inter partes), I think they come within the latter part of the section. If we came to the opposite conclusion, it seems to me that the effect of our judgment would be to permit parties to make these statutory provisions inoperative merely by putting prohibitory terms in their agreement, the performance of which they can waive at pleasure.

I therefore have come to the conclusion that our judgment must be for the respondents, and that the order of the Justices must be affirmed.

LINDLEY, J.-I am of the same opinion. What the appellants want us to decide is that the trustees are not owners of a "house or "land." Looking at the statutes on which this question turns, their effect, as it seems to me, is to make both owners of house and land liable for these expenses. Why is this chapel not within these statutes? Because, so it is contended, the principle laid down in Angell's Case (3) applies. But all that was decided there was that a church consecrated for ever to ecclesiastical purposes was not liable to be assessed as a "house." This case is as unlike the one I have cited as it can be; the only resemblance that I can see is that both structures may be used for the same purpose. The differences are apparent enough, and have already been sufficiently commented on by my brother Grove. The decision in The Plumstead Board of Works v. The British Land Company (4), which was a question of cross roads, does not touch the present case. This building, in my judgment, falls within one or the other description contained in the statutes: I should say it might be brought within either. Having regard to the object of the Acts and the wording of the sections, I should say everything was intended to be included except churches properly so called.

With respect to the further question, whether the appellants are "owners," I have come to the conclusion that they are. As trustees they can let for the benefit of their cestuis que trust. It may be that this congregation will in time find a more suitable place to worship in, and then the trustees can let it. Considering the facts stated in the Special Case, I am not prepared to assume that these trustees pay rack rent, but I think they clearly come within the latter part of the definition given to the term "owner in section 250 of the Act of 1855.

For these reasons I think that this appeal should be dismissed with costs.

Appeal dismissed.

Solicitors-T. C. Williams and Shepheard & Sons, for appellants; John Layton, for respondents.

A was summoned by the local School Board of Belgrave in the county of Leicester, and an order was made on him to cause his child to attend the school and to see that that order was complied with. A sent his child but without the school fees. On an information laid before the Justices, A was convicted of not complying with the order, and adjudged to pay a fine of 58., to be levied, if necessary, by distress, and in the event of insufficiency of distress, it was ordered that A be imprisoned for five days unless the fine and costs should be sooner paid-Held, on appeal, that notwithstanding that A had not applied to the guardians, under 39 & 40 Vict. c. 79. s. 10, to pay the fees, and had refused to obtain a remission of them, under 33 & 34 Vict. c. 75. s. 17, he was not liable to conviction under 39 & 40 Vict. c. 79. s. 12, as he had in fact complied with the order to cause the child to attend the school.

This was an appeal by Special Case, stated under 42 & 43 Vict. c. 49, from a conviction by the Justices for the county of Leicester, on an information preferred by the respondent on behalf of the School Board of Belgrave in the said county, that the appellant, John Richardson, being the parent of Amy Richardson, residing in the said parish of Belgrave, and subject to the provisions of the Elementary Education Acts, unlawfully did not cause the said Amy Richardson to attend school as required by an attendance order made by a Court of summary jurisdiction. It was proved or admitted that the attendance order was duly made and served, that the child was sent by the father to the school, but without the fees, and that the father, who was out of work, refused to apply to the guardians to pay the fees or to ask for a remission. The child was VOL. 50.-M.C.

refused admission because the fees were not sent.

The question of law for the Court was whether the appellant was properly convicted of not complying with the attendance order.

Hensman, for the appellaut.-This conviction should be quashed because the appellant has, by sending the child to school, complied with the order, as the Elementary Acts have no provisions, nor have any by-laws been made thereunder, to compel parents to send school fees with the children, or imposing a penalty for not so sending them.

Douglas Walker, for the respondent.Though there is no provision in the Acts for the prepayment of school fees, it is a rule adopted from the course taken in the schools of which the board schools have taken the place, to demand them beforehand, as there is no power under the Act to enforce any payment of fees. duty of educating the child is imposed for the first time as a duty on the parent by 39 & 40 Vict. c. 79. s. 4. If through poverty he is unable to meet the expense of performing that duty, he can apply under section 10 to the guardians to pay the fees for him. 33 & 34 Vict. c. 75. s. 74

The

gives power to school boards to make bylaws as to the remission of fees, and he can, if proved to be unable to pay the fees get them remitted. But here the appellant was not proved to be unable to pay the fees The evidence was only that he was out of work. It being, therefore, by his own fault that the fees were not paid or remitted, sending the child without the fees was not causing the child to attend in compliance with the order.

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Hensman, in reply. This is practically a criminal proceeding. The appellant is an ignorant man, and therefore the plain reading of the words of the order should, if possible, be taken to be the true reading. The words are cause the child to attend." He did, in fact, send the child. True, it was without the fees; but in order to sustain the charge of disobedience to the order it would be necessary to read it as though the words were cause the child to attend with the fees." Attendance means sending the child to receive educa

K

Richardson v. Saunders, C.P.

tion and refers to a physical act-see sections 17, 36, 74 of the Act of 1870, and section 11 of that of 1876, the last of which created a fresh offence with two sub-divisions-first, not causing the child to attend; second, habitually neglecting to cause the child to attend-Ex parte The School Board for London; in re Murphy (1).

LINDLEY, J.-This is a case of considerable importance. The question as stated by the Justices is very simple, namely, whether sending a child to a board school without the fees, which it appears it is the rule to require to be prepaid, is, or is not, a failure to comply with an attendance order. The authority on which. the attendance order in this case was made is not stated. It runs thus: "We do order the said Amy Richardson to attend the board school, being a certified efficient school at Belgrave, in the county of Leicester, every time the said school shall be open, and that the said defendant do see that this our order is complied with." The case states that the appellant did cause the child to go to the school; and the question is, Was, or was not, that a compliance with that order? Now in what sense is the word "attend" used in the Act authorising the granting an attendance order? At first sight At first sight it seems quite plain that there was a compliance with the order, and the only doubt in my mind arose from the fact that section 10 enables a parent to apply to the guardians to pay the fee, so that although he is a poor man there exists a method of getting them paid. This doubt, however, I think was unfounded, and the true construction of the Act is such that I am of opinion that the appellant has caused his child to attend the school. I see that there may be a difficulty in forcing him to pay the fees or get them remitted, but we cannot strain the sections of the Act in order to avoid such a difficulty; and looking at those sections I think it becomes quite plain that the word "attend" is used in its prima facie meaning. The excuses for non-attendance in section 11 point to

(1) 46 Law J. Rep. M.C. 193; Law Rep. 2 Q.B. D. 397.

a physical attendance, and there is nothing to indicate an attendance with fees. Attendance really means going to school," and this is all the Act means. If there is any desire for other regulations to be complied with, as that the child should come with a clean face, or with the fees in hand, by-laws should be made enacting it. I think the appellant has complied with the order and that the conviction must be quashed.

LOPES, J.-The appellant has been convicted of unlawfully not causing his child to attend, has been fined five shillings, and is liable in default to imprisonment for five days. It is admitted that he did send his child to the school, but without the fees-which, according to the respondent's contention, is no attendance at all-since the father might have got remission, or, by proving his inability through poverty to pay the fees, have got the money paid by the guardians. We are asked to say that the word "attend" is not to be taken in the ordinary sense, but as though it meant "attend with school fees in hand."

But

I am unable to import those words into this statute which is a very stringent Act-for they would hardly be in accord. with the words actually in the statute. In my opinion, "cause to attend " means simply and purely "send to school." There may be a difficulty in obtaining the fees, but that must be provided for, if necessary, by legislation. I am of opinion that this conviction must be quashed.

Conviction quashed with costs.

Solicitors-H. Montagu, agent for Thomas Wright, Leicester, for appellant; Gedge & Co., agents for Edward Miles, Leicester, for respondent.

[IN THE QUEEN'S BENCH DIVISION.J 1881. SWAN (appellant) v. SANDERS March 15. J (respondent).

Parrots

}

Cruelty-Domestic Animals - Young Omission to supply Water. Jurisdiction of Justices-Statute 12 & 13 Vict. c. 92. s. 2.

The appellant, a foreman to a dealer in foreign birds, sent some parrots from L. to D. by railway in a box without water. They were found at H., a station on the route, after ten hours' travelling, suffering, as the respondent alleged, from want of water, which they drank eagerly when offered to them. Upon these facts the magistrate convicted the appellant, under 12 & 13 Vict. c. 92. 8. 2, of torturing or causing to be tortured "domestic animals" : Held, that the conviction was bad, on the ground that there was no evidence of cruelty or that the parrots in question were "domestic animals" within the meaning of the

statute.

Quære, whether if an offence had been committed such offence would have been a continuing one.

CASE stated by a Metropolitan police magistrate, under 20 & 21 Vict. c. 43.

On the 1st of October, 1880, an information was preferred by the respondent against the appellant, under 12 & 13 Vict. c. 92. s. 2, "for that he on the 10th and 11th days of September, 1880, in the parish of St. Giles, Camberwell, did ill-treat and torture, and cause or procure to be cruelly ill-treated and tortured, certain animals, to wit, six parrots, contrary to the statute."

The appellant was the foreman to one Cross, who is a wholesale dealer in foreign birds, beasts and reptiles, and keeps a menagerie at Liverpool.

On the 10th of September, 1880, the appellant superintended the packing in a wooden box of a case of six young parrots at Liverpool, which were despatched by his direction by the train leaving Liverpool at 11 P.M., consigned to Dover. Some Indian corn was placed in the box in which they were consigned, but no water.

At 9.15 A.M., on the 11th of September, the respondent, an officer of the Society

for the Prevention of Cruelty to Animals, being on the platform of the Herne Hill station, observed the box there, which was waiting to be placed in the Dover train. The respondent observed through a crevice in the top of the box that the birds were perspiring very freely, and the attention of another witness was drawn to the birds by their making a squeaking noise. On water being given to them they drank about two saucerfuls, and with a relish, and did not cry out afterwards but seemed to be quite happy and contented.

Upon the above facts the appellant contended-first, that there was no evidence of cruelty; second, that the birds, being foreign unacclimatised parrots, were not "animals" within the meaning of the statute; and, third, that no offence had been committed within the jurisdiction of the Court.

The magistrate convicted the appellant, being of opinion that the birds were "animals" under the statute, and that the appellant had committed an offence within the jurisdiction of the Court, by cruelly sending birds without water on a journey of several hours.

The question for the opinion of the Court was, whether the appellant was rightly convicted under 12 & 13 Vict. c. 92. s. 2.

H. D. Greene, for the appellant.-This conviction is bad. First, there is no evidence of any cruelty. Cruelty consists in the unnecessary abuse of an animalBridge v. Parsons (1).-See also Murphy v. Manning (2). No evidence was offered of the habits of these birds; and the fact that they drank only amounts to evidence of thirst. Secondly, no evidence was given that these parrots were "domestic animals" within the meaning of 12 & 13 Vict. c. 92. s. 29, as extended by 17 & 18 Vict. c. 60. s. 3 (3). The appellant's employer was a dealer in foreign birds, and the presumption is that these birds were