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Q.B.] REG. v. JUSTICES OF KENT; Ex parte LONDON, CHATHAM, & DOVER RAIL. CO. [Q.B.
Education Act 1876 is to prevent children from being employed unless they are over school age or ha f-timers, or come under any of the excep tions mentioned in sect. 9. In this case the child clearly comes under the mischief which the Act was designed to prevent. [CHANNELL, J.The father ought to send the child to school. He is liable to be fined for not doing so.] The fines are so small as to be ineffective. I submit that this is a case of employment for the purposes of gain, as defined in sect. 47. The result of the child being kept away from school to do the bousework is that the mother is enabled to earn money. Employment does not necessarily mean for hire. It would be possible by such means as these to keep a child at home during the whole period of school age.
The respondent was not represented by counsel.
DARLING, J.-In this case a summons was taken under sect. 6 of the Elementary Education Act 1876 charging the father of a child within school age with contravening the 47th section of the Act, which says that "a parent of a child who employs such child in any labour exercised by way of trade or for the purposes of gain, shall be deemed for the purposes of this Act to take such child into his employment." The magistrates found that the child was kept at home not that she might earn money, but that her mother might be enabled to go out and follow some occupation, which brought in on an average 10s. a week. On this evidence they refused to convict, and I think they were right in so refusing. Sect. 5 and 6 of the Act forbid the employment of children generally. Sect. 47 covers the acts of parents, but the child must be employed by way of trade or for purposes of gain. What was meant by that, in my opinion, was direct gain to the employer. In this case it cannot be said that the labour of the child resulted in direct gain. It is true that the mother was relieved of her household duties and so enabled to earn money, but that does not seem to me sufficient to bring the case under the section. The appeal must be dismissed.
CHANNELL, J.-I also think the appeal must be dismissed. It seems to me that sect. 47 was framed so as to exclude the ordinary case of domestic employment. Here the real offence committed by the father was not sending the child to school, and if, as we have been told, the fines are so small as to be no deterrent, it is for the Legislature to see that the penalties are made effective. Appeal dismissed.
Solicitor for appellant, C. E. Mortimer.
Wednesday, May 3, 1899.
(Before DARLING and CHANNELL, JJ.) REG. v. JUSTICES OF KENT; Ex parte LONDON, CHATHAM, AND DOVER RAILWAY COMPANY. (a) Appeal against assessment to quarter sessions— Service of notice of appeal-Reasonable notice - Parish councils · - Parish meetings - Local Government Act 1894 (56 & 57 Vict. c. 73), ss. 5 (1) (2) (a) (b), 6 (1) (c) (i), 19 (5) (6), 52 (5). The L. C. & D. Railway Company appealed to quarter sessions against the assessments for the (4) Reported by J. ANDREW STRAHAN, Esq., Barrister-at-Law.
poor rate made on their property in eleven parishes in the county of K. Seven of these parishes had parish councils, and the remaining four had parish meetings. When the appeal came before the justices, the respondents raised the point that the company had not served notice of appeal against the rate within proper time on the parish councils, and the justices refused to enter and respite the appeal with a view to proper notice being served. Nothing was said about the parishes which had parish meetings only. A rule nisi was then obtained for a mandamus calling on the justices to show cause why they should not enter and respite the appeal in order to enable notices to be properly served on the parish councils.
Held, that the parish councils should be served with notice, and that, as notices had not been served in proper time upon them, there was no appeal that could be entered and respited. Held also that, as the rule nisi only mentioned parish councils, it was not necessary to decide whether parish meetings should be served with notice of appeal or not.
RULE nisi for a mandamus to justices.
The following facts appeared from the affidavits :
In Feb. 1898 the Assessment Committee of the Malling Union in the County of Kent increased the London, Chatham, and Dover Railway Company's assessment in each of the parishes of Addington, Allington, Aylesford, Ditton, Ightham, Leybourne, East Malling, West Mal ling, Offham, Ryarsh, and Wrotham to a total gross estimated rental of 62611. per annum.
On the 12th March notices of objection to the valuation list were duly given. Some negotiations with a view to a settlement then ensued, but eventually on the 15th Sept. the clerk to the assessment committee informed the company that the committee had decided to support the figures of their own surveyor.
On the 26th Nov. notices of appeal against the assessment were duly served by the company upon the overseers of each of the above-mentioned parishes other than Allington and East Malling (the demands for rates not having been made as regards those two parishes) and upon the clerk to the assessment committee.
On the 6th Dec. notices of appeal were sent to the overseers of the parishes of Allington and West Malling and also to the clerk to the assessment committee.
On the 22nd Dec., in an interview with the solicitor to the company, a representative of the solicitor to the assessment committee pointed out that, in consequence of the Local Government Act 1894, service of notice of appeal against assessment addressed to the overseers of a parish was not sufficient, and that the notices of appeal should be served on the parish councils.
On the 22nd Dec. notices of appeal were posted by the company at 5.20 p.m., addressed to the clerks of the parish councils of the abovementioned eleven parishes. All the notices were notices of appeal to the quarter sessions to be holden at Maidstone on the 5th Jan. 1899. It had previously been agreed on between the parties that the parish of Ightham should be taken as a test case.
There was some divergence of statement in the
Q.B.] REG. v. JUSTICES OF KENT; Ex parte LONDON, CHATHAM, & DOVER RAIL. CO. [Q.B.
respective affidavits as to what actually took place when the appeals came on for hearing at quarter sessions. It appears, however, that counsel for the assessment committee submitted that the appeals must fail on the ground that notice had not been served on the parish councils in proper time-twelve days' notice only being given instead of fourteen days. On behalf of the railway company it was contended that, even if it was necessary to serve the parish councils with notice as well as the overseers-which was denied-the justices should enter and respite the appeals to the ensuing sessions in order to enable further and better notice to be given to the parish councils. The justices, however, refused to do so, and dismissed the whole eleven appeals with costs. As a matter of fact, in four out of the eleven parishes-Allington, Addington, Leybourne, and Wrotham-there were no parish councils, but only parish meetings, but this point was not raised at quarter sessions, nor, as will be seen, are parish meetings mentioned in the rule nisi. A rule nisi was then obtained calling on the justices of the county of Kent to show cause why a writ of mandamus should not issue directed to them commanding them to enter or cause to be entered continuances from session to session to the next general quarter sessions upon the several appeals of the railway company against the several rates or assessments made for the relief of the poor of the several eleven parishes, and to hear and determine the merits of the said several appeals -notice of the order to be given to the Assessment Committee of the Malling Union, the overseers and the parish councils of the said several parishes in the meantime.
The following statutes were referred to in the arguments of counsel:
17 Geo. 2, c. 38:
Sect. 4. In case any person or persons shall find him, her, or themselves aggrieved by any rate or assessment made for the relief of the poor it shall and may be lawful for such person or persons giving reasonable notice to the churchwardens or overseers of the poor of the parish... to appeal to the next general or quarter sessions of the peace for the county where such parish lies and the justices of the peace there assembled are hereby authorised and required to receive such appeal, and to hear and finally determine the same; but if it shall appear to the said justices that reasonable notice was not given, then they shall adjourn the said appeal to the next quarter sessions, and then and there finally hear and determine the same.
41 Geo. 3, c. 23:
Sect. 4. From and after the passing of this Act, all notices of appeal from or against any rate or assessment made for the relief of the poor shall be in writing, and shall be signed by the person or persons giving the same and such notices of appeal shall be delivered to or left at the places of abode of the churchwardens and overseers of the poor of the parish or any two of them, and the particular causes or grounds of appeal shall be stated and specified in such notice.
The Local Government Act 1894 (56 & 57 Vict. c. 73):
Sect. 5.-(1.) The power and duty of appointing overseers of the poor, and the power of appointing and revoking the appointment of an assistant overseer, for every rural parish having a parish council, shall be transferred to and vested in the parish council, and that council shall in each year at their annual meeting appoint the overseers of the parish, and shall as soon as may be fill any casual vacancy occurring in the office of overseers of the parish. (2.) As from the appointed day (a) the church wardens of every rural parish shall cease to be overseers, and an additional number of overseers may be appointed to replace the church wardens ; and (b) references in any Act to the churchwardens and overseers shall, as respects any rural parish, except so far as those references relate to the affairs of the Church, be construed as references to the overseers.
Sect. 6.-(1.) Upon the parish council of a rural parish coming into office, there shall be transferred to that council (c) the powers, duties, and liabilities of the overseers, or of the churchwardens and overseers of the parish with respect to (i.) appeals or objections by them in respect of the valuation list, or appeals in respect of the poor rate, or county rate, or the basis of the county
Sect. 9. In a rural parish not having a separate parish council, the following provisions shall, as from the appointed day, but subject to provisions made by a group. ing order, if the parish is grouped with some other parish or parishes, have effect: (5.) The power and duty of appointing the overseers, and of notifying the appointment, and the power of appointing and revoking the appointment of an assistant overseer, shall be transferred to and vest in the parish meeting. (6.) The chairman of the parish meeting and the overseers of the parish shall be a body corporate by the name of the chairman and overseers of the parish, and shall have perpetual succession, and may hold land for the purposes of the parish without licence in mortmain; but shall in all respects act in manner directed by the parish meeting, and any act of such body corporate shall be executed under the hands, or if an instrument under seal is required, under the hands and seals, of the said chairman and overseers.
Sect. 52. (5.) All enactments in any Act, whether general or local and personal, relating to any powers, duties, or liabilities transferred by this Act to a parish council or parish meeting from justices or the vestry, or overseers, or churchwardens and overseers, shall, subject to the provisions of this Act and so far as circumstances admit, be construed as if any reference therein to justices or to the vestry, or to the overseers, or to the churchwardens and overseers, referred to the parish council or parish meeting as the case requires, and the said enactments shall be construed with such modifications as may be necessary for carrying this Act into effect.
Morton Smith showed cause.-By 17 Geo. 2, c. 38, s. 4, and 41 Geo. 3, c. 23, s. 4, persons wishing to appeal against the rate or assessment made for the relief of the poor must serve notice of appeal in writing upon the churchwardens and overseers of the parish. The churchwardens of a parish are now no longer overseers, and references in any Act to the churchwardens and overseers of a rural parish, except with regard to church affairs, are to be construed as references to the overseers: (See the Local Government Act 1894, s. 5 (2), (a) and (b). The same Act also changes the method of appointing the overseers, and transfers their appointment to the parish council, or, in parishes which have no parish councils, to the parish meeting-see sect. 5 (1) and sect. 19 (5). Moreover the Act says-sect. 6 (1) (c) (i)—that
FULFORD (app.) v. BLATCHFORD (resp.).
the powers, duties, and liabilities of the overseers, or of the churchwardens and overseers of the parish with regard to appeals in respect of the poor rate, shall be transferred to the parish council, and further-sect. 52 (5)—that all enactments in any Act relating to any powers, duties, or liabilities transferred by that Act to a parish council from overseers or churchwardeas and overseers, shall be construed as if any reference therein to overseers or churchwardens and overseers referred to the parish council. Therefore, for overseers and churchwardens in the earlier Acts, which make notice of appeal obligatory, we must now substitute the parish council in those parishes which have such councils. The service of notice on the parish council thus becomes a condition precedent to appeal. Then as to the time within which notice must be served, 17 Geo. 2, 9 4 says "reasonable notice" must be given, and that is defined by Baines's Act (12 & 13 Vict. c.45), s. 1, to mean fourteen days' clear notice. Here there was only twelve days' notice, and therefore the notice was bad. Further, in parishes which have not parish councils, either the parish meeting or the chairman of the parish meeting and the overseers, who are constituted a body corporate by the Local Government Act 1894, s. 19 (6) should be served with notice of appeal. Lastly Reg. v. The Inhabitants of Skircoat (28 L. J. 224, M. C.) proves that the justices may exercise their discretion with regard to entering and respiting such appeals.
A. Willis (Boyle, Q.C. with him) in support of the rule. As regards reasonable notice I rely on
Reg. v. Eyre 26 L. J. 15, M. C. ;
Reg. v. The Justices of Kent, L. Rep. 6 Q. B. 132. When the notice is reasonable the justices are bound to enter and respite the appeal. As to the necessity of serving notice on the parish council, the Local Government Act 1894 contains no express provision that notice of appeal against assessments shall be served on the parish council. In any case, I submit that there is no need to serve the parish meeting or the chairman and overseers of the parish with notice of appeal.
DARLING, J.-I think that this rule should be discharged. It seems clear that in case of an appeal against a rate or assessment made for the relief of the poor, the parish council should be erved with notice. That being so, proper notice was not given in this case to the parish councils, and consequently there was really no appeal which the justices could enter and respite. What I have said applies, of course, only to the seven parishes which have parish councils. With regard to the other four, which have not parish councils but only parish meetings, the point does not appear to have been raised at quarter sessions, and the matter was brought before the justices as if there existed no difference between the various parishes. In that case we are not called upon, I think, to decide who ought to be served with notice of appeal in parishes which have not parish councils.
CHANNELL, J.-I agree that the rule should be discharged. The sessions had not jurisdiction either to hear or to enter and respite such an appeal, as proper notice had not been served on the parish councils. As the rule nisi mentions only parish councils, and the point as to parish meetings was never raised at all before the
justices, it is not necessary for us to decide whether parish meetings should be served with notice or not. Rule discharged.
Solicitors for the respondents, Kays and Jones, for H. D. Wildes, West Malling. Solicitors for the railway company, J. Lewis Morgan.
May 4 and 5, 1899.
(Before DARLING and CHANNELL, JJ.) FULFORD (app.) v. BLATCHFORD (resp.). (a) Public Health Acts-Deposit of plans of building described otherwise than as a dwelling-houseSubsequent deposit of revised plans for domestic conversion-Building used for the purposes of habitation - Prosecution - Public Health Act 1875 (38 & 39 Vict. c. 55) ss. 158, 159-Public Health Acts Amendment Act 1890 (53 & 54 Vict. c. 59), s. 33.
Plans of a new building were deposited with a sanitary authority in May 1894 describing the building otherwise than as a dwelling-house, and were duly approved and passed. On the 28th March 1898 plans of alterations to the building described as "revised plans of proposed domestic conversion," were also deposited with the borough surveyor, but were never either approved or disapproved in writing by the sanitary authority. The proposed alterations were carried out before the 3rd Oct. 1898. Between the 24th Oct. and the 8th Nov the occupier's wife and child lived on the premises. On the 14th Dec. 1898 the occupier was charged before the magistrates with wilfully using within the above-mentioned dates the premises for the purpose of habitation by a person other than a person placed therein to take care thereof and the family of such person, contrary to sect. 33 of the Public Health Acts Amendment Act 1890. It was contended on behalf of the defendant that the alterations to the premises set out in the plans deposited on the 28th March were for the conversion into dwelling-houses of buildings not originally constructed for human habitation within the meaning of sect. 159 of the Public Health Act 1875; that the sanitary authority within one month should have signified in writing their approval or disapproval of the same pursuant to sect. 158 of that Act; and that the sanitary authority not having signified such approval or disapproval no proceedings could be taken against the defendant under sect. 33 of the Act of 1890. The magistrates upheld that contention, and dismissed the case.
Held, on appeal to the Divisional Court, that sect. 33 of the Public Health Acts Amendment Act 1890 had been contravened, and that the case must go back for a conviction.
SPECIAL case stated by justices of the county of Devon.
The following were the material paragraphs of the case:
1. At a petty sessions holden at Okehampton, in the county of Devon, on the 14th Dec. 1898 on an information of George L. Fulford, town clerk of the Borough of Okehampton, acting on behalf of the Mayor, aldermen, and burgesses as the urban sanitary authority (hereinafter called the (a) Reported by J. ANDREW STRAHAN, Esq., Barrister-at-Law.
FULFORD (app.) v. BLATCHFORD (resp.).
appellants) against George Kerslake Blatchford (hereinafter called the respondent), the information stated as follows: That the Borough of Okehampton is an urban sanitary district where n the Public Health Acts Amendment Act 1890, part 3, was, on the 5th June 1893, adopted under the provisions of the said Act, and that the plan of a certain building within the said district, viz., a building called or known as Nos. 10 and 12, The Arcade, Okehampton, now in the occupation of G. K. Blatchford, was, in pursuance of the byelaws with respect to new streets and buildings in force in the said district, deposited with the said authority, and that in the said plan the said building is described otherwise than as a dwelling house, and that the said G. K. Blatchford on and from the 24th Oct. 1898 until the 8th Nov. 1898 did wilfully use the said building for the purpose of habitation by a person other than a person placed therein to take care thereof, and the family of such person, contrary to the Public Health Acts Amendment Act 1890, s. 33.
2. The said defendant was charged with so acting as stated in the said information, and the siid charge was heard and determined by us, and upon such hearing the complaint was dismissed.
4. The following admissions were made and agreed to by the appellants and the respondent respectively: (a) That the bye-laws passed by the appellants in 1886 were in force in the Borough of Okehampton. (b) That the Public Health Acts Amendment Act 1890 had been duly adopted by the appellants. (c) That a notice was given on the 10th May 1897 to the respondent and others to cease from occupying the premises known as the Arcade, as a dwelling-house. (d) That the name of the respondent appears in the rate book of the borough as occupier of the premises 10 and 12, The Arcade aforesaid.
5. Bye-laws 53, 54, 57, and 58 of the borough made pursuant to sect. 157 of the Public Health Act 1875, and above referred to, are as follows :
53. Every person who shall erect a new domestic building shall provide in front of such building an open space, which shall be free from any erection thereon above the level of the ground except any portico, porch, step, or other like projection from such building, or any gate, fence, or wall not exceeding 7ft. in height, and which measured to the boundary of any lands or premises immediately opposite or to the opposite side of any street which such building may front, shall throughout the whole line of frontage of such building extend to a distance of 24ft. at the least, such distance being measured in every case at right angles to the external face of any wall of such building which shall front or abut on such open space. A person who shall make any alteration in or addition to such building shall not by such alteration or addition diminish the extent of open space provided in pursuance of this bye-law in connection with such buildings.
54. Every person who shall erect a new domestic building shall provide in the rear of such building an open space exclusively belonging to such building and of an aggregate extent of not less than 150 square feet, and free from any erection thereon above the level of the ground except a water closet, earth closet or privy, and an ashpit. He shall cause such open space to extend laterally throughout the entire width of such building, and he shall cause the distance across such open space from every part of such building to the boundary of any lands or premises immediately opposite or adjoining the site of such building to be not less in any case than 10ft. If the height of such building be 15ft.,
he shall cause such distance to be 15ft. at the least. If the height of such building be 25ft., he shall cause such distance to be 20ft. at the least. If the height of such building be 35ft. or exceed 35ft., he shall cause such distance to be 25ft. at the least. A person who shall make any alteration in or addition to such building shall not, by such alteration or addition, diminish the aggregate extent of open space provided in pursuance of this bye-law in connection with such building, or in any other respect fail to comply with any provision of this bye-law. For the purposes of this bye-law, the height of such building shall be measured upwards from the level of the ground over which such open space shall extend to the level of half the vertical height of the roof or to the top of the parapet, whichever may be the higher.
55. Every person who shall erect a new domestic building shall construct in the wall of each storey of such building which shall immediately front or abut on such open spaces as, in pursuance of the bye-laws in that behalf, sball be provided in connection with such building a sufficient number of suitable windows, in such a manner and in such a position that each of such windows shall afford effectual means of ventilation by direct communication with the external air.
57. Every person who shall erect a new building shall construct in every habitable room of such building one window at the least opening directly into the external air, and he shall cause the total area of such window, or if there be more than one, of the several windows clear of the sash frames, to be equal at the least to one-tenth of the floor of such room. Such person shall also construct every such window so that one-half at the least may be opened, and so that the opening may extend in every case to the top of the window.
58. Every person who shall erect a new domestic building shall cause every habitable room of such building which is without a fireplace and a flue properly constructed and properly connected with such fireplace, to be provided with special and adequate means of ventilation by a sufficient aperture or air shaft, which shall provide an unobstructed area of 100 square inches at the least.
7. Evidence was given by the town clerk of the borough that Mrs. Blatchford, the defendant's wife, lived on the premises 10 and 12, The Arcade (which were used as a shop) from the 24th Oct. to the 8th Nov., and that the defendant himself had been on the premises between those dates.
8. The borough surveyor gave evidence as follows: That the plans of the Arcade were deposited with him by the owner in 1894; that the buildings are alternately described therein as 'shop and office on the ground floor, and on the first floor "show room and office" alternately; that the plans were submitted as plans of "shops and offices," and the building is described otherwise than as a dwelling-house; that the air space required by the bye-laws for domestic buildings is 24ft. in front and 15ft. in the rear for a building of the height of the Arcade; that the air space in front is 11ft. and at the rear an average of 5ft. On cross-examination the witness deposed that plans of alterations to the premises, viz, plans described as "revised plans of proposed domestic conversion were deposited with him on the 28th March 1898; that these plans were submitted by him to the general purposes_committee of the council; that the council had not, so far as he was aware, approved or disapproved of these plans in writing; that the alterations specified in these plans in respect of Nos. 10 and 12 were carried out before the 3rd Oct. 1898. On re-examination the witness said that the only plans passed by the council were those presented
FULFORD (app.) v. BLATCHFORD (resp).
in May 1894, and that the buildings as altered in accordance with the plans deposited on the 28th March 1898 did not comply with the byelaws, there being no sufficient air space.
11. It was submitted on behalf of the defendant: (1) That there was no sufficient evidence given of the defendant using the premises contrary to the statute between the dates charged. (3) That Mrs. Blatchford was a person placed there to take care of the premises. (4) That inasmuch as the plans deposited on the 28th March 1898 showed the premises described as a dwellinghouse the defendant could not be convicted under sect. 33 of the Public Health Acts Amendment Act 1890. (5) That the alterations to the premises known as the Arcade set out in the plans deposited on the 28th March 1898 were for the conversion into dwelling-houses of buildings not originally constructed for human habitation within the meaning of sect. 159 of the Public Health Act 1875; that the plans were deposited with and delivered to the borough surveyor on the 28th March 1898; that the town council as the sanitary authority should have within one month signified in writing their approval or disapproval of the same, pursuant to sect. 158 of that Act; and that, not having signified such approval or disapproval, no proceedings could be taken against the defendant under sect. 33 of the Public Health Acts Amendment Act 1890 as charged, and Clarke v. Bloomfield (1 Times L. Rep. 323) was quoted in support of the contention.
14. We, after deliberation, found on the evidence as facts: (a) That there was sufficient evidence of the defendants having used the premises between the dates charged for the purposes of habitation. (b) That the plans deposited witu the surveyor on the 28th March 1898 were duly and properly deposited. (c) That the town council did not approve or disapprove of them in writing as required by the 158th section of the Public Health Act 1875 within one month from the date of such depositing. (d) That the alterations as shown in such plans were carried out after the expiration of such month and before the date of the alleged offence.
15. We also found (b) that the plans deposited with and delivered to the borough surveyor on the 28th March 1898 were for the conversion into a dwelling-house of buildings not originally intended for human habitation within sect. 159 of the Public Health Act 1875, and that the town council, acting as the urban sanitary authority, should have approved or disapproved of them in writing as provided by sect. 158 of that Act. And that not having done so, the defendant could not be convicted under sect. 33 of the Public Health Acts Amendment Act 1890 under the information as charged.
The Public Health Act 1875 provides as follows:
Sect. 158. Where a notice, plan, or description of any work is required by any bye-law made by an urban authority to be laid before that authority, the urban authority shall, within one month after the same has been delivered or sent to their surveyor or clerk, signify in writing their approval or disapproval of the intended work to the person proposing to execute the same; and if the work is commenced after such notice of disapproval, or before the expiration of such month without such approval, and is in any respect not
in conformity with any bye-law of the urban authority, the urban authority may cause so much of the work as has been executed to be pulled down or removed. Where an urban authority incur expenses in or about the removal of any work executed contrary to any byelaw, such authority may recover in a summary manner the amount of such expenses either from the person executing the works removed or from the person causing the works to be executed, at their discretion. Where an urban authority may under this section pull down or remove any work begun or executed in contravention of any bye-law, or where the beginning or the execution of the work is an offence in respect whereof the offender is liable in respect of any bye-law to a penalty, the existence of the work during its continuance in such a form and state as to be in contravention of the bye-law shall be deemed to be a continuing offence, but a penalty shall not be incurred in respect thereof after the expiration of one year from the day when the offence was committed or the bye-law was broken.
Sect. 159. For the purposes of this Act the re-erecting of any building pulled down to or below the ground floor, or of any frame building of which only the framework is left down to the ground floor, or the conversion into a dwelling-house of any building not originally constructed for human habitation, or the conversion into more than one dwelling-house of a building originally constructed as one dwelling-house only, shall be considered the erection of a new building.
The Public Health Acts Amendment Act 1890 provides as follows:
Sect. 33.-(1.) Where the plan of a building has been either before or after the adoption of this part of this Act in any district, deposited with a local authority in pursuance of any Act of Parliament or bye-law, and that building is described therein otherwise than as a dwelling-house, any person who wilfully uses or knowingly permits to be used such building or any part thereof for the purposes of habitation by any person other than the person placed therein to take care thereof, and the family of such person, shall be guilty of an offence under this section, and shall be liable to a penalty not exceeding 5., and to a daily penalty not exceeding 40s. (2.) Provided that if such building has in the rear thereof and adjoining and exclusively belonging thereto such an open space as is required by any Act of Parliament or bye-law for the time being in force with respect to buildings intended to be used as dwelling-houses, and if such part of the building as is intended to be used as a dwelling-bouse has undergone such structural alterations, if any, as are necesary in the opinion of the local authority to make it fit for that purpose, the owner may use the same as a dwelling-house.
Duke, Q.C. aud Coldridge for the appellants. A. Foote, Q.C. and Bodilly for the respondent. DARLING, J.-In this case I think that the magistrates came to a wrong conclusion, and that therefore this case must be sent back to them with an order to convict. It seems to me that the effect of what was done was to bring this case within secr. 33 of the Public Health Acts Amendment Act of 1890. First of all, a plan of this building was deposited with the proper authorities, which showed the building to be other than a dwelling-house. That plan was afterwards altered-it was not said that an absolutely new plan was sent in, which showed the building to be a dwelling-house-but the original plan was in some respects altered; and the first plan having been called "Arcade" and so on, it was then called "Arcade, revised plan of proposed domestic conversion." Now that was not the second proposed domestic conversion; it was the first domestic conversion, whatever that means