Mens v. The Queen, H.L.

LORD FITZGERALD.-I concur in the opinion that the decision of the Court of Appeal should be reversed, and that the rule absolute for a mandamus should be discharged. I have come to that conclusion with great diffidence, having regard to the very high authority of the tribunal from whose decision this appeal immediately comes.

It is not my intention to deal with the expenses of the enquiry as to the insanity of Mary Bray, or the cost of her conveyance from the county prison to the lunatic asylum. I confine myself to the real question between the parties, as to the cost of her maintenance in the asylum during the currency of the two sentences of imprisonment passed upon her.

There can be no doubt that as she had no settlement and no property, the cost of her maintenance would have been payable out of the county rates, under the provisions contained in section 2 of 3 & 4 Vict. c. 54, if it had not been for the Prisons Act of 1877.

The question is, whether the effect of the later statute has been to vary the former to the extent of making the cost of such maintenance ultimately payable out of money provided by Parliament in place of the County Fund.

The expressed policy and object of the Prisons Act of 1877 was to take from the existing prison authorities and the Justices at sessions all powers and jurisdiction, whether at common law or by statute or charter vested in them, as to prisons and prisoners, and to transfer such powers and jurisdiction, together with the prisons and their management, and the control and safe custody of the prisoners, to Her Majesty's principal Secretary of State, aided by the commissioners and officers to be appointed in manner provided by the Act; on the other hand the county is relieved from the obligation to maintain a prison and to provide prison accommodation, and the maintenance of prisons and prisoners is placed on the public funds in exoneration of the county rates.

But though such were the general objects of the Legislature, what we have to consider and determine is whether the expenses of maintaining insane prisoners in lunatic asylums under such a state of

facts as the present case discloses is provided for by section 4 of the Act as amplified and defined by the 57th section.

If the case stood on section 4 alone, that section would be subject to all the observations of the Judges in the Queen's Bench Division and in the Court of Appeal; but it seems that attention was not sufficiently directed to section 57.

One principal question then arises on section 4 as interpreted by section 57, namely, whether Mary Bray, when detained in the lunatic asylum, and before the expiration of her sentence, continued to be a prisoner within the meaning of

section 4.

Upon the fullest consideration I have come to the conclusion that she was such a prisoner, notwithstanding the difficulty created by the word "therein" in section 4.

Before her removal to the asylum she was a prisoner in the county prison undergoing sentence, and the statutes under which she was removed declare that the person so removed "shall remain under confinement in such county asylum" until it shall be certified that such person has become sane, "and thereupon if such person shall still remain subject to be continued in custody" (3 & 4 Vict. c. 54. s. 1, and 27 & 28 Vict. c. 29. s. 2) "such person shall be removed back to the prison or other place of confinement from whence he or she shall have been taken, or if the period of imprisonment of such person shall have expired, he or she shall be discharged."

A prisoner is but a captive detained in some place of confinement for some one of the objects mentioned in the statute, and that was the position of Mary Bray whilst in the lunatic asylum during the currency of her sentence, and she was not the less a prisoner, though not subject there to any punitive treatment, save detention in custody. Being so a prisoner her maintenance in that place of confinement would have been payable by the prison authority but for the passing of the Prisons Act, 1877, and I am of opinion that by the operation of that Act such maintenance is now payable out of moneys provided by Parliament. There seems to have been in the decision of the

Mers v. The Queen, H.L.

Court below too strict an adherence to the letter of section 4, without regarding the object to be attained and the subjectmatter as explained by section 57.

I desire to say that I have not formed my opinion on this question of liability to the maintenance of this insane prisoner on Mullins's Case (1), or on any rule or principle supposed to be deduced from it, and I have to add that the present decision of your Lordships' House seems to me to leave untouched another question which may arise, and possibly has arisen in Mary Bray's case-namely, the liability to her maintenance in the lunatic asylum after the period of imprisonment to which she was sentenced had expired, and when it may be contended that she ceased to be a prisoner and was relegated to the class of pauper lunatics.

Order of the Court of Appeal and Order of the Queen's Bench Division reversed with a direction; the respondent to pay to the appellants the costs of the appeal to this House, and the costs in the Court below.

Solicitors-F. F. Smallpeice, for appellants; Hare & Fell, agents for the Solicitor to the Treasury, for the Crown.

SWAN

1883. BRIGGS (appellant) v. April 16. J WICK (respondent). Fish-Preservation of Freshwater Fish -36 & 37 Vict. c. 71. s. 15-Placing a Device to catch Fish descending StreamAncient Weir constructed with Trap.

Section 15 of the Salmon Fishery Act, 1873 (36 & 37 Vict. c. 71), enacts that, "no person shall between the 1st of January and the 24th of June place in any inland water any device whatsoever to catch or obstruct any fish descending the stream." A mill weir, constructed in 1838, had attached to it as part of its permanent structure a grating, which when the weir shuttles were raised allowed the water to

flow through, but stopped the passage of

the fish and forced them into a well at the side whence they could not get out.

The lessee of the mill and weir being grantee of a power to trap eels, on the 2nd of June, 1882, raised the shuttles, and so caused several eels and other fish to pass into the well.

On an information against him for placing a device to catch fish descending the stream, he was convicted ::

Held, on case stated on appeal, that it was immaterial whether the trap was an old and permanent or new and temporary structure, and that as by raising the shuttles he had set the trap, he was properly convicted of placing a device to catch fish within the meaning of the section.

This was a Case stated by two magistrates for the county of Stafford under 20 & 21 Vict. c. 43, who had convicted the appellant, on the hearing of an information against him under section 15 of 36 & 37 Vict. c. 71, for that he on the 2nd of June, 1882, did unlawfully place in certain inland water, called the river Tame, a certain device, to wit an eel-trap, to catch fish descending the stream.

It was proved that the appellant was lessee of Alder Mills for a term of twentyone years from 1872 from Sir Robert Peel, there being two weirs on the water which worked the mill, at one of which was fixed the eel-trap in question, built in the year 1838. The lease contained the grant of a power to trap eels, and was a demise to the appellant of the eel-trap, which he had no right to remove.

The trap was constructed in the following manner: At the lower side of the weir was fixed an iron grating sloping upwards, with bars half an inch apart, so that when the shuttles of the weir were raised the water rushing under them would pass through the grating but sweep any fish into a trough, which carried them down into a well or trap whence they could not escape.

On the 2nd of June three of the shuttles were up, the water was rushing through the grating, and there were eels in the well. Twelve months before, the appellant had been directed by the agent of the landlord to keep all the weir gates open, but on the day in question no water was pass

Briggs v. Swanwick.

ing over the main weir, which was at some distance from the weir containing the trap. The appellant alone worked the trap, and claimed the right to do so as he pleased.

The contentions of the appellant were— first, that he did not place the device, it having been erected long before the passing of the Act; and, secondly, that the Act was not intended to apply to a permanent structure in existence at the passing of the Act, but to devices of a temporary and movable nature placed after the Act in inland waters.

Dugdale, Q.C., for the appellant.-It was proved that this is not a salmon river, and therefore this conviction, if it can be supported at all, must be brought under the words in the latter part of section 15. The words "shall place" must, it is submitted, mean the erection of some trap or device since the passing of the Act. It is, however, found in the Case that this is a permanent structure. The Act was directed against the putting up of temporary eeltraps during the close season, but not to interfere with existing weirs. This trap was already placed; the appellant did nothing in the way of placing it.

[FIELD, J.-He did something; he raised the shuttle.]

Willis Bund, for the respondent, was not heard.

vice for catching fish attached to it: water can flow through it, but every thing bigger than half an inch is stopped by the iron fender, and fish once carried over it cannot return. A more complete trap was never heard of. Whether the trap was permanent or temporary is immaterial in my opinion: the only question then is whether this man placed it within the meaning of the Act? The words are comprehensive enough-" placed any device." I think that the appellant did place the device, because in its normal condition, if I may use the expression, the thing is not a trap, but so soon as the shuttle is raised, the trap is set. He raised the shuttle and so brought the device into force.

MATHEW, J.-I am of the same opinion. This was plainly a device for catching fish. Placing a device is not popular language perhaps, but it is equivalent to and might well be expressed as setting a trap. There was no trap set until the gate or shuttle was raised, but when the appellant raised it he set the trap. He therefore, in my opinion, placed the device within the meaning of the Act, and the Justices were right in convicting him.

Amesbury Union v. Wilts Justices. against the defendants, as the county authority for the county of Wilts, to recover half the sum of 150l. 88. 9d., part of a sum expended by the plaintiffs, as the highway authority for the highway district of Amesbury in that county, and duly audited by the Local Government Board district auditor.

In or about the month of January, 1881, the parts of the main roads situate within the jurisdiction of the plaintiff's were, in common with most of the highways in the county of Wilts, rendered impassable by a severe fall of snow. The plaintiffs immediately took measures to remove the snow and reopen the roads for traffic. The expenses incurred on the removal of the snow amounted to 150l. 88. 9d., which was admitted to have been necessarily incurred in such a removal of snow as was required to render the roads fit for traffic.

By section 13 of the Highways and Locomotives Act, 1878 (41 & 42 Vict. c. 77), it is provided as follows:

"For the purpose of this Act and subject to its provisions, any road which has, within the period between the 31st day of December, 1870, and the date of the passing of this Act, ceased to be a turnpike road, and any road which being at the time of the passing of this Act a turnpike road may afterwards cease to be such, shall be deemed to be a main road, and one-half of the expenses incurred from and after the 29th day of September, 1878, by the highway authority in the maintenance of such road shall, as to any part thereof which is within the limits of a highway area, be paid to the highway authority of such area by the county authority of the county in which such road is situate out of the county rate."

Charles, Q.C. (G. A. R. Fitzgerald with him), for the plaintiffs.-The expenses incurred in removing snow are expenses incurred in the maintenance of the road within section 13 of the Highways and Locomotives Act, 1878. "Maintenance" does not refer merely to the structure of the road. The removal of a bank which had slipped, or a large rock, would be maintenance of a road, if it were necessary to keep the road as a road.

The Solicitor-General (Sir F. Herschell,

VOL. 52.-M.C.

Q.C.) (Ravenhill with him).-The section includes only the removal of a permanent obstruction, not a temporary obstruction, which in time removes itself. The right of the highway authority to repair is coextensive with the liability of the parish to be indicted. The parish could not be indicted for a mere fall of snow. Snow is specially provided for in the Highway Acts; for example, section 26 of the Highway Act, 1835 (5 & 6 Will. 4. c. 50). The case of The Queen v. Greenhow (1) was referred to.

Charles in reply.

CAVE, J.-I am of opinion that the plaintiffs are entitled to succeed in this action. The case of The Queen v. Greenhow (1) decides that where a road is made impassable through a landslip, it is, until restored, out of repair, so that the parish is liable to restore it. Absence of restoring makes the road out of repair, and restoring is a repair. In that case the obstruction was permanent, and in this case it is temporary; but I am not satisfied with the distinction attempted to be drawn from these facts. In either case the road is impassable. The public has a right to use the road, and the authorities are bound to place it in repair--not on a light occasion, but when necessary. In this case it is admitted that the removal of the snow was necessary, and the case falls within The Queen v. Greenhow (1).

DAY, J.-I am of the same opinion.

Solicitors-Taylor, Hoare, Taylor & Box, agents for Wilson & Sons, Salisbury, for plaintiffs; Merriman, Pike & Merriman, agents for R. W. Merriman, Marlborough, for defendants.

(1) 45 Law J. Rep. M.C. 141; Law Rep. 1 Q.B. D. 703.

K

[IN THE COURT OF APPEAL.]

1883. March 15.

MARTIN V. THE ASSESSMENT
COMMITTEE OF THE WEST
DERBY UNION. *

Poor-Rate Rateability of House occupied by Superintendent of Police-House Quarter of a Mile distant from Police Station-43 Eliz. c. 2. 8. 1.

The appellant, a superintendent of police, occupied with his wife and family a house which was a quarter of a mile distant from the police station, and which was hired by the county authorities. The rent was paid out of the police rate, and was then deducted from the salary of the appellant, who, so long as the authorities rented the house, was compelled to live there. The house was liable to be used for such purposes connected with the police as the chief constable might direct, but no part of the house was specially set apart for that purpose. The house had been furnished by the appellant, who was liable to be removed from it at any time, and from one police division to another :-Held, that the occupation of the appellant was a beneficial occupation in respect of which he was liable to be rated to the poor rate, and that the house was not Crown property, or property which was to be treated as Crown property, within the established exemption from rateability.

Gambier v. The Overseers of Lydford (23 Law J. Rep. M.C. 69) followed and approved.

Appeal from a judgment of the Queen's Bench Division upon a Special Case stated under 12 & 13 Vict. c. 45. s. 11.

The appellant, who was the superintendent of police for the West Derby Division, in the county of Lancaster, had been assessed to the poor rate, in respect of a house and premises in which he resided.

The county constabulary force of Lancashire is established under 2 & 3 Vict. c. 93. The county is divided into police districts or divisions, of which the West Derby Division is one.

Station-houses, strong-rooms, and other buildings and accommodation requisite for

*Coram Lord Coleridge, C.J.; Brett, L.J., and Bowen, L.J.

the use of the force, were built or provided under 3 & 4 Vict. c. 88.

The police force, including all police stations, is annually inspected by one of Her Majesty's inspectors, appointed under 19 & 20 Vict. c. 69, and, if his report is satisfactory, a grant is made by the Lords of the Treasury, amounting to one-half of the expense of the pay and clothing of the force in aid of the police rates. Her Majesty's inspectors have in some cases examined into and reported as to the fitness of houses taken as residences for police officers in the same way as the house has been taken for the appellant as hereinafter mentioned.

In 1863 the police divisions of Lancashire were remodelled, and a superintendent was transferred from Bootle police station, where there were quarters in which a superintendent resided, to Old Swan police station, where there were not then, nor are there now, quarters in which a superintendent can reside.

The Justices in petty sessions have since 1863, from time to time, authorised the chief constable of the county to hire a house for the superintendent in charge of the division.

On the 24th of March, 1880, the county authorities took the house upon a verbal agreement for a yearly tenancy, at an annual rent of 50%., which was paid out of the police rates of the West Derby Division; and the amount was then deducted from the salary of the police officer for whom the quarters were provided as a residence.

The house was liable to be used for such purposes connected with the police force as the chief constable might direct. The appellant occasionally did police business in the house, but no room was specially set apart for any purpose other than for the use of the appellant and his family. Blinds, gas and other fittings in the house were provided by the county, which also found gas and coals, but the appellant furnished the house.

The police station was distant a quarter of a mile from the house. It was necessary that the appellant should reside within a convenient distance from the police station for the due performance of his official duties. So long as the county