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SUPREME COURT OF JUDICATURE.

CASES RELATING TO

THE POOR LAW, THE CRIMINAL LAW,

AND OTHER SUBJECTS

CHIEFLY CONNECTED WITH

The Duties and Office of Magistrates.

LAW JOURNAL REPORTS, VOL. LI.

MICHAELMAS, 1881, тo MICHAELMAS, 1882.

45 Victoria.

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[IN THE COURT OF APPEAL ] 1881. THE MAYOR, &C., OF ROCHDALE v. Nov. 15. THE JUSTICES OF LANCASHIRE. Highway-Liability to Repair-Main Road-Portion of a Road ceasing to be a Turnpike Road-41 & 42 Vict. c. 77. 8. 13,

The Highways and Locomotives (Amendment) Act, 1878 (41 & 42 Vict. c. 77), enacts, by section 13, that any road which has since 1870 ceased to be a turnpike road shall be deemed a main road, and that half the expenses of maintaining such a road shall, after the 29th of September, 1878, be borne by the county authority. Certain roads, formerly turnpike roads, ceased after 1870 to be such, through the enlargement of the area of the borough of R., by which portions of such roads were taken out of the turnpike trust and included within the borough. By 10 & 11 Vict. c. 34 the corporation, as the highway authority of the borough, became liable for the repair of all highways within the borough, and the turnpike trustees were precluded from levying tolls or spending money on any road within the borough.

The corporation claimed to recover from the county authority half of the expenses

Coram Lord Coleridge, C.J.; Brett, L.J.; and Cotton, L.J.

VOL. 51.-M.C

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Held (reversing the judgment of the Queen's Bench Division), that the claim must be allowed, inasmuch as those portions of the roads which were so included had ceased to be turnpike roads, and had become main roads, and that the provisions of section 13 of 41 & 42 Vict. c. 77 consequently applied to them.

Appeal from the judgment of the Queen's Bench Division on a Special Case.

The case is reported 50 Law J. Rep. M.C. 97.

The question raised by the Special Case was whether the plaintiffs, the Rochdale highway authority, were entitled under section 13 of 41 & 42 Vict. c. 77 (1) to

(1) 41 & 42 Vict c. 77. s. 13: "For the purposes 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 every part thereof which is within the limits of any highway area, be paid to the highway authority

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Mayor, &c., of Rochdale v. Justices of Lancashire, App. call upon the defendants, the Lancashire county authority, to contribute half of the expense of maintaining certain roads within the area of the Rochdale highway authority.

Rochdale was incorporated in 1856, when the borough included all places "within a radius of three-quarters of a mile from the old market-place," and all the powers and rights of the local commissioners who had, prior to the incorporation, governed the town of Rochdale, were then transferred to the corporation. By the Rochdale Improvement Act, 1853, sections 47, 48, 49, 50 of the Towns Improvements Clauses Act, 1847 (10 & 11 Vict. c. 34), were, inter alia, incorporated therewith.

Section 47 gave the management of all public highways to the commissioners.

Section 48 was as follows: "The commissioners and none other shall be the surveyors of all highways within the limits of the special Act, and within those limits shall have all such powers and authorities, and be subject to all such liabilities as any surveyors of highways are invested with or subject to by virtue of the laws for the time being in force, and the inhabitants of the district within the said limits shall not in respect of any lands situate within the said district be liable to the payment of any highway rate, grand jury cess or other payment in respect of making and repairing roads within the other parts of the parish township, barony or place in which the said district or any part thereof is situate."

of such area by the county authority of the county in which such road is situate out of the county rate on the certificate of the surveyor of the county authority, or of such other person or persons as the county authority may appoint, to the effect that such main road has been maintained to his or their satisfaction: Provided that no part of such expenses shall be included in-1. Any precept or warrant for the levying or collection of county rate within the metropolis, subject and without prejudice to any provision to be hereafter made; or, 2. Any order made on the council of any borough having a separate Court of quarter sessions under section 117 of the Municipal Corporation Act, 1835. The term expenses' in this section shall mean the cost of repairs defrayed out of current rates, and shall not include any repayment of principal moneys borrowed or of interest payable thereon."

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Section 49: "The commissioners shall be deemed guilty of a misdemeanour for refusing or neglecting to repair any public highway within the limits of the special Act, and shall be liable to be indicted for such misdemeanour in the same manner as the inhabitants thereof, or of any parish, township or other district therein, were liable before the passing of the special Act."

Section 50: "The trustees of any turnpike road shall not collect any toll on any road within the limits of the special Act or lay out any money thereon."

In 1872 the Rochdale Improvement Act was passed, by which the boundaries of the borough were considerably enlarged, and by which all the provisions of the Acts relating to the old borough were extended and made applicable to the enlarged area of the borough. The effect of

this was that portions of certain turnpike roads entering Rochdale were brought within the area of the borough, and being thus taken out of the turnpike trusts they ceased to be turnpike roads, and the corporation, as the highway authority, became liable to maintain them.

The plaintiffs claimed from the county by virtue of section 13 of 41 & 42 Vict. c. 77 (1) half of the expenses of maintaining the portions of the roads so included in the enlarged borough. A Special Case was stated by consent, on the argument of which in the Queen's Bench Division judgment was given for the county authority, the defendants.

The plaintiffs appealed.

Sir H. Giffard (with him Crump), for the appellants.-The question turns on the true construction of section 13 of the Highways Act of 1878 (1); and it is submitted that any road within the enlarged area of the borough-which has ceased since 1872, by the operation of the Improvement Act, 1847, to be repaired by the turnpike trustees, is now a main road within the meaning of section 13 of the Act of 1878 (1); and that, therefore, the plaintiffs are in the case of any such road entitled to claim from the county authority half of the expenses of repair. For this purpose any part of any road must be considered as coming within the descrip

therefore think that this judgment must be reversed.

Mayor, &c., of Rochdale v. Justices of Lancashire, App. tion "any road." The object of the Act of 1878 was to reduce to a system the cost of repairing highways. Section 15, in furtherance of that object, provides for the declaring highways to be main roads; and section 16, on the other hand, gives power to prevent roads from being declared main roads.

Gorst (with him Blair), for the respondents. The portions of roads taken out of the turnpike trusts have not ceased to be turnpike roads. It is true that by section 50 of the Improvement Act no tolls are to be collected on those portions of a road, but there is no provision that tolls may not be collected in respect of such portions of road; and the provision may well merely be one of convenience as to the placing of toll gates. Certain parts may have been taken out, but the whole road still remains a turnpike road, and the intention of the Legislature was that a road should only cease to be a turnpike road by the effluxion of the trust; and the dealing with a part of a road only does not disturnpike it, so that the condition specified in section 13 of the Act (1) does not exist, and the defendants cannot be liable.

LORD COLERIDGE, C.J.-I am unable to agree with the judgment of the Divisional Court in this case. I think that the true construction of section 13 of the Highways and Locomotives Act, 1878 (1), is that any portion of a turnpike road as well as the whole of a turnpike road, which has, within the time mentioned in the Act, ceased to be a turnpike road, shall be deemed to be a main road. It is difficult, indeed, to say what is the whole of any road. A road runs from London to York, and such a road is subject to several turnpike trusts, each of which covers only a part of that road. In such a case it seems to me that when any part of a road subject to a turnpike trust is brought within the area of the borough, and becomes repairable by the highway authority of the borough, and when the power to take toll has ceased, then so much of that road as was subject to a turnpike trust ceases to be a turnpike road, and comes under the provisions of section 13 of the Act of 1878 (1).

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BRETT, L.J.-I think that a turnpike road is, in a case such as the present, made shorter by the extension of the borough. That portion of the road which is outside the borough is still a turnpike road, while that which is inside the borough is no longer a turnpike road, but has become a main road, and falls under the provisions of section 13 of 41 & 42 Vict. c. 77 (1). I agree therefore that this judgment must be reversed; and I would add that this decision makes the other point suggested immaterial; that is to say, it is unnecessary to decide whether, supposing the provisions of this section to apply to a turnpike road of which the trust has not expired, they would still apply when the trust has expired.

COTTON, L.J.-I agree that this judgment must be reversed. I think we ought to consider the object of the statute. That object was that, when a road which was formerly repaired by a turnpike trust became repairable by a local highway authority, the county should bear part of the expense. Why should not this apply to the present case? It is urged it should not so apply because the portion of the road included was not a turnpike road but only part of a turnpike road. I, however, am of opinion that it was a turnpike road; that it has ceased to be such a road; and that it has come under the provisions of section 13 of the Act of 1878 (1). A road from London to York or Dover may be, as has been said, a turnpike road all along its whole length. Could it, however, be said that the provisions of the Act would only apply to the whole length of that turnpike road? It was then said that a road could only cease to be a turnpike road by the expiration of the trust. There is, however, nothing in the section which thus limits its opera

tion.

Another point taken was that there was a provision in the Act that the expenses of repair should be provided out of a certain fund. Now, if the Act had said that such expenses were to be provided out of a certain fund and not in any other way, I think this argument

business of sale, was the seller, and must be convicted for not having his name and address on the label.

Mayor, Sc., of Rochdale v. Justices of Lancashire, App. would have some force; but there is nothing in the statute to that effect. The Towns Improvement Clauses Act, 1847, provides that the commissioners shall repair the roads just as any other body which was liable to repair it before. They are not directed to pay the expenses out of a particular fund, and not out of any other. It is plain that the commissioners have only the same duty and liability that any other body of persons liable to repair have; and they are, in my opinion, entitled to call on the county to contribute to the expenses thus incurred.

Appeal allowed.

Solicitors-J. J. & C. J. Allen, for Z. Mellor, Rochdale, for plaintiffs; Ridsdale & Son, for Wilson & Hulton, Preston, for defendants.

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1881. TEMPLEMAN (appellant) v. Nov. 16. TRAFFORD (respondent).

Pharmacy Act, 1868 (31 & 32 Vict. c. 121), s. 17-Sale of Poisons-Name and Address of Seller.

By section 17 of the Pharmacy Act, 1868, it is made "unlawful to sell any poison unless the box, bottle, vessel, wrapper or cover in which such poison is contained be distinctly labelled with the name of the article and the word poison, and with the name and address of the seller of the poison."

The respondent kept a shop and sold there upon commission a poison, which was labelled with the name and address of the person, a duly qualified chemist, who supplied it to him, but not with his own name or address. The chemist who supplied him lived elsewhere, and had nothing to do with the sales in respondent's shop, beyond afterwards receiving the money realised, less the commission. On an information against the respondent under Section 17,

Held, that he, having the control of the

This was a Case stated by Justices of the city of Oxford on dismissing an information preferred by the appellant, assistant secretary to the Chemists' and Druggists' Trade Association of Great Britain, against the respondent, charging that on the 15th of June, 1881, he did sell a certain poison, to wit, red oxide of mercury, commonly called red precipitate, the same not being in a box, wrapper, &c., distinctly labelled with the name and address of the seller, contrary to the Pharmacy Act, 1868 (31 & 32 Vict. c. 121), s. 17.

It was proved that the appellant on the 15th of June, 1881, entered the shop, 100 Friar Street, Oxford, over which shop no name was painted up, and asked a woman who was behind the counter for a pennyworth of red precipitate, and was supplied by her with a packet of the same, for which the appellant paid the said woman. The packet was not labelled with the name and address of the respondent, but was labelled in print thus: "W. Paterson, Chemist and Druggist, 3 Cowley Road, Oxford."

It was admitted by the respondent that the appellant had been served with the red oxide of mercury at the shop situate 100 Friar Street, of which the respondent was the occupier, and in respect of which the respondent alone was rated. It was also admitted that red oxide of mercury was an article duly declared to be a poison within the meaning of the Pharmacy Act. It was contended by the respondent that W. Paterson was a tenant of the respondent in respect of the use of one of the windows and part of the respondent's shop, and that the respondent acted as a servant to the said W. Paterson in the sale of such red precipitate, and in support of such contention he called W. Paterson, who deposed that he paid respondent 4s. a week for the partial use of one of the windows and of part of the shop; that he considered the respondent, if anything, was a servant of his, and that he employed him to sell goods for him n;

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