to pledge the credit of the county for those expenses:

Rex v. Essex, Inhabitants of, 4 T. R. 591. Mandamus is the proper remedy to enforce the liability of the county council to pay these

expenses:

Mayor, &c., of Salford v. Lancashire County Council, 63 L. T. Rep. 409; 25 Q. B. Div. 384. Asquith, Q.C. and H. L. Stephen for the respondents. The county council are not liable to pay these expenses out of the county funds. There can be no charge upon the county rate unless it is imposed by some statute, and there is no statute which makes such expenses as these chargeable upon the county rate. There is no such general liability to pay out of the county rate any expenses incurred by the justices in preserving the peace of the county. In order to charge the expenses of special constables, and the expenses of the high constable in suppressing iots, it was necessary to have a statutory enactment. This shows that the appellants' contention cannot be correct. The soldiers were, during the whole time they were in the county, part of the military forces of the Crown and were Inder military command It is illegal to pay any of the expenses of the military forces except out of money provided by Parliament for that purpose. Sir R. B. Finlay (S.-G.) in reply.

Cur. adv. vult. Aug. 10. The following judgments were read:

SMITH, LJ.-In this case the Queen's Bench Division has refused to make absolute a rule nisi for a mandamus calling upon the County Council of Glamorganshire to show cause why it should not make an order for the payment to the relators out of the county funds of the amounts expended by them for housing and feeding troops in their county, or, in the alternative, why the county council should not levy a county rate whereby to make these payments, which were incurred under the circumstances hereafter mentioned. The point is whether, when justices of the peace call in troops to aid the civil power in quelling riots in a county. there is or is not a legal duty upon the ratepayers of the county to pay for the housing and feeding of the troops so called in. Although by sect. 3 of the Local Government Act 1888 (51 & 52 Vict. c. 45) the making, assessing, and levying of county rates, and the application and expenditure the reof, is transferred to the county councils, and by sect. 9 the powers of quarter sessions and justices out of sessions with respect to county police are vested in quarter sessions and the county council jointly, this case should be dealt with as if the powers and jurisdiction of justices of the peace for counties theretofore existing had not been affected by this Act, for in reality it has no bearing upon this case. In the month of June 1898, in consequence of serious riots in Glamorganshire, it became necessary for the public safety and the preservation of the peace that troops should be imported into and kept at Aberdare, Aberavon, and Mountain Ash in that county, and the military authorities were applied to by the justices of the peace for that county for the necessary troops, which were thus obtained. These troops had to be housed and fed in the districts into which they

were imported, and it therefore became necessary that arrangements should be made in their behalf, and accordingly the justices of the peace for the county in meeting assembled sanctioned these arrangements, and agreed that certain ascertained payments should be made to tradesmen for housing and feeding the troops during the time they were in these districts, and the credit of the county for these agreed payments was pledged by the agents of the justices to the tradesmen who undertook to render the desired services. These tradesmen are the relators in the present applica tion, and the law officers of the Crown appear on their behalf Upon the 31st July 1898 the tradesmen sent in their accounts for the services rendered up to that date, made out upon the agreed prices, and these were certified as being correct by two of the justices of the peace, and there was then no dispute as to these charges. Upon the 13th Sept. 1898 the accounts of further expenditure from the 31st July 1898 were sent in by the tradesmen, amounting to 2500l.; but these accounts were disputed, and the county council offered to pay 13501. of this amount. This the tradesmen refused to accept, and thereupon the county council took up the position that, if the tradesmen would not take what was offered, the county council would pay nothing, and would deny its liability to pay anything, and hence the application for the rule nisi by the tradesmen, which was obtained, and which, as before stated, the Queen's Bench Division (consisting of my brothers Wills, Darling, and Channell) has discharged, holding that no duty is imposed upon those who administer the county funds to pay out of those funds the expenses of the maintenance of troops brought into their district for the purpose of suppressing riots. It seems to me that the circumstances of this case are such as to induce the court to be astute to find, if possible, a duty imposed by law upon the ratepayers of the cou ty to pay that which is now demanded; but the question remains, can such a duty be found? In considering this application for a rule nisi it matters not, in my judgment, whether the credit of the county has or has not been pledged by the justices to the tradesmen, for the same point arises in either case. If the justices had the power to pledge the credit of the county ratepayers to the payment of the sums now demanded by the tradesmen, it is because there is a duty upon the ratepayers to pay them; but if there be no such duty the pledging of the credit, which the Solicitor-General so much insisted upon, comes to nothing, for the point is, whether the credit was pledged or not, can the law officers of the Crown appearing for the relators show that there is a legal duty on the part of the ratepayers of the county to what is now demanded by the tradesmen? Justices of the peace for counties are appointed by Special Commission under the Great Seal, which, as appears from Blackstone's Commentaries, 4th edit. by Stephen, p. 650, was settled by all the judges as long ago as the year 1590. By this commission they are appointed to keep the peace in the particular counties namedvidelicet, "to keep and cause to be kept all ordinances and statutes for the good of the peace." By the 13 Hen. 4, c. 7, s. 1: "If any riot against the law be made the justices, three or two of them at the least, and the sheriff and undersheriff shall come with the power of the county

(if need be) to arrest them and shall arrest them"; and by 2 Hen. 5, c. 8, s. 2, "the King's liege people being sufficient to travel shall be assistants to them upon reasonable warning to ride with them in aid to resist such riots

on pain of imprisonment and to make fines and ransoms to the King"; and by this section it is further enacted that "the said justices and other officers shall execute their offices aforesaid at the King's costs in going and continuing in doing their said offices by payment thereof to be made by the sheriff by indentures betwixt the said sheriff and justices and other officers aforesaid, whereby the sheriff upon his account in the Exchequer shall have due allowance." From this statute it would seem that the Crown rather than the county is liable for expenses incident to the quelling of riots; but I have not to decide as to the Crown, and the subsequent Police Acts play an important part in this matter. I do not doubt that it is the duty of justices of the peace in counties to quell riots within their respective counties, and, indeed, if they neglected to do so they might be proceeded against by informationsee Rex v. Pinney (5 C. & P. 254) and Rex v. Kennett (5 C. & P. 282)-but the question is, Who is to pay for the performance of this duty? The argument on the part of the county council is that, if justices are willing to undertake duties which they are bound to perform, and expense is thereby incurred, the justices who undertake the duties must pay the expenses incurred in their performance, unless they can show that they are relieved therefrom, or that the obligation to pay is cast upon some other person or persons, which is the same thing. Upon the present rule nisi I have not to determine whether the justices who pledged the credit of the county can or cannot be sued personally for having represented to the tradesmen that they had the authority of the county to pledge its credit, whereas they had not, and I say nothing as to this one way or the other, nor have I to determine whether the Crown is the paymaster, for the sole question I have to solve is whether there is a legal duty upon the ratepayers of the county to pay to the tradesmen their accounts for housing and feeding the troops in the present case. I do not doubt that in cases of necessity justices of the peace have power to call in troops, and it is clear that, when called in to quell a riot, they can only be called in to act either as civilians or as soldiers. In my judgment they are called in to act as soldiers, for their services are asked for as being soldiers, they come as soldiers under arms and military command, they remain under arms and military command, and depart under arms and military command; but, as this is not conceded, I will first assume that they are called in to act as civilians, and see how the matter then stands. In Burn's Justice of the Peace, 30th edit., vol. 1, p. 1340, I find it stated that "the expenses to which counties are liable and which are to be levied by county rates are provided for by various Acts of Parliament, which will be found under their respective titles throughout this work." In 1739 the statute 12 Geo. 2, c. 29 was passed, which was the first County Rate Act. Prior to this Act there had been in counties particular rates for particular purposes levied under particular Acts, and the County Rate Act of 12 Geo. 2, c. 29, which recites these Acts, represented MAG. CAS.-VOL. XIX.

66

the aggregate of the small rates previously levied, and it is enacted, by sects 1 and 6, that a county rate should thereafter be levied "for the uses and purposes of the said recited Acts to which the public stock of any county is or shall be applicable." I can find no trace of the public stock of any county being liable for the housing of troops called in to quell riots either before or after the passing of this Act of 12 Geo. 2. I have looked through the Acts which relate to the county rates, both those cited in Burn's Justice of the Peace, at p. 1340, and others cited at the Bar, and there is not a single Act which casts the housing and maintenance of troops when called into a county upon the county rate, and the Act of 41 Geo. 3, c. 78, s. 2, to which I shall refer hereafter, is the only Act I can find which can by any possibility be pointed to as having any semblance of a reference to the matter. The Acts which deal with the public peace deal with chief constables, high constables, special constables. and police, the charges of which are by the different Acts placed upon the county rate, and it is by means of these Acts that justices of the peace, as it appears to me, are released from the charges of keeping the peace in their counties, which I apprehend they would otherwise have to pay as incident to the performance of their duty. But the maintenance of troops, assuming them to be acting as civilians, is not to be found mentioned in these statutes. Soldiers are not per se "chief constables," "high constables," special constables," or "police," even assuming they happen to act as civilians. I will now take it that the troops are what they really are―viz., acting and being soldiers-and, as this is so, it seems to me, if possible, to be an à fortiori case, for the cost of housing and feeding soldiers is clearly not cast upon the county rate in terms by any statute whatever. It was next argued by the Solicitor-General that, even if so and the obligation of the county ratepayers to defray these expenses cannot be found in any statute, yet this court should hold that by the common law of England the justices were entitled to be recouped by the county for what they had pledged the credit of the county to the tradesmen in the performance of their duty. As to this suggested common law obligation, there is no evidence that it has ever been the practice of the county to bear these expenses. The Solicitor-General, with all the research at his command, has only been able to produce one case upon the subject, and that he cited out of the Times newspaper of the 21st Feb. 1879, and the question there raised was whether an order by the county treasurer for the payment of money to the high constable in respect of the lodging and feeding of troops brought in to quell riots at Blackburn was a valid order. The order was sought to be upheld, not at common law, be it noticed, but by reason of sect. 2 of 41 Geo. 3, c. 78, which enacted that it should be lawful for any two justices to order and direct such reasonable and necessary allowances to be made to any high constable for extraordinary expenses incurred by him in the execution of their respective duties in any case of tumult, riot, or felony. The rule nisi for a mandamus which had been obtained was made absolute by Cockburn, L.C.J. and Mellor, J., the Lord Chief Justice saying, "there being a serious question raised they would leave it to be raised on

3 B

the record and carried if necessary to the House of Lords." This is the sole case the SolicitorGeneral has been able to bring to our attention, a poor authority indeed upon which to infer a common law obligation. I must point out that the present rule nisi is not moved under the Act above mentioned; and whether, if it had been, it would have been successful I give no opinion, for it is not before me, and I may add that, if it had, the facts of the case do not seem to me to fit in with the section. The present rule is to pay out of the county fund, or to levy a county rate to pay the tradesmen who are the relators, and not to pay a high constable for any extraordinary expenses he may have incurred, and indeed none, as it appears to me upon the affidavits, have been incurred by any high constable. I will now turn to the work of a man who had peculiar knowledge on the matters now in question-I mean the late Mr. Charles Clode of the War Office. I find, at p. 142 of his work, Military Forces of the Crown, vol. 2, sect. 47, and a note thereon, that which shows how erroneous it would be for the court to declare the existence of an obligation upon the ratepayers of counties at common law to pay the cost of soldiers imported into their districts to quell riots, as suggested by the Solicitor-General. At sect. 47 Mr. Clode says, with regard to the employment of military in lieu of the police, there is this apparent defect in the present law-viz., that the military are sent to and remain in the particular town, not at the expense of the local, but of the general community, giving thereby a present instead of inflicting a pecuniary mulct upon the inhabitants of the town or place for their insufficient ordinary police arrangements, and the example he gives in the note is peculiarly pertinent to the common law point now for the first time, I believe, suggested by the Solicitor-General. The note is this: For example, if the Manchester magistrates request 500 men of the Metropolitan Police to be sent down to aid in maintaining the peace and order of the town, the magistrates provide for the men and the ratepayers of Manchester bear their expenses; but, if the same magistrates request 500 soldiers to be sent for the same purpose, the taxpayers of the kingdom have to bear all the expenses of the 500 soldiers and the ratepayers of Manchester nothing." Where is there any place for holding a duty imposed at common law upon the ratepayers to pay for the housing and feeding of soldiers? There is none, for no such obligation at common law in fact exists, and if this obligation is to be imposed, it must be by statute. The case of Rex v. Essex (4 T. R. 591) was pressed into the service of the Solicitor-General in order to show that the county rate might be liable for expenses not cast upon it by statute. The question there was whether the justices of a county might pay the expense of litigating as to a fine which they thought had been illegally imposed upon the county, and it was held (see specially by Buller, J.) that on the true construction of 12 Geo. 2, c. 29, the necessary expenses of everything relating to the subjects therein mentioned must be borne by the county and paid out of the county stock; but, as this Act in no way relates to the payment of the maintenance of soldiers in a county, the case, in my judgment, has no application to the case in hand. For the above reasons I think that the tradesmen make

66

WILLIAMS, L.J.-In my opinion the judgment of the Divisional Court must be affirmed. The key to the whole question is to be found in the judgment of the Court of Queen's Bench in Řez v. Essex (4 T. R. 591). Lord Kenyon, C.J. says: "If the contest in this case had been, Whether the justices of the county could arbitrarily impose taxes on the county? the only answer that could have been given would have been in the negative. But the question here is, Where, by any express law, or by precedent and long usage, that which has been done was not lawfully done? And, if it were warranted by precedent and long usage and by many analagous cases in the law, the order may be supported, though there may be no precise Act of Parliament to direct it." Now, in the present case it is not suggested that there is any statute authorising the levy of a rate for the payment of the expenses incurred in the maintenance of the soldiers called in to maintain order, or that there is any statute that authorises the payment of such expenses out of the county fund; neither is it suggested that these expenses are the necessary expenses of things relating to subjects mentioned in such Acts, within the principle laid down by Buller, J., who says: "In my opinion the true construction of this Act (2 Geo. 2, c. 29) is, that the necessary expenses of everything relating to the subjects therein mentioned must be borne by the county and paid out of the county stock." The mandamus asked for in the present case is a mandamus to the county council of the administrative county of Glamorgan ordering them to pay certain sums to certain tradesmen who had provided food and other things for the maintenance of the soldiers. This distinguishes the present case from the case which was before Cockburn, L.C.J. and Mellor, J. on the 21st Sept. 1879, in which case the application was for a mandamus directing the treasurer of the county fund to obey an order of two justices, confirmed at quarter sessions, to pay to the chief constable the extraordinary expenditure incurred for the maintenance of a military force called in by the justices on the occasion of riots at Blackburn. It was contended that such an order could be justified by 41 Geo. 3, c. 78, s. 2, which provides that it shall be lawful for two justices to order such reasonable and necessary allowances to be made to any high constable for any county for any extraordinary expenses incurred by him in the execution of his duty in any case of tumult, riot, or felony. The section goes on to provide for the confirmation of the order at quarter sessions. The writ of mandamus was granted, the court saying that the question could then be raised on the record and carried to the House of Lords if necessary, but suggesting that it might answer the purpose to appeal against the decision before incurring the expense of issuing the writ. The rule was made absolute for the issue of the writ, but there does not seem to have been any appeal. In that case there was an affidavit by the chief constable saying that, in his opinion, the expenses were necessarily incurred in providing lodgings and rations and otherwise

CT. OF APP.]

maintaining the military force, and that, in his opinion, such military force was necessary to aid and assist the civil authority in maintaining peace and good order, and that without such military force it would not have been possible for him to have maintained peace and good order in the division. As the Lord Chief Justice points out, the affidavit did not state that the force was obtained by the chief constable, although when the soldiers were there he availed himself of their assistance. Indeed, it does not appear that the lodgings and rations were ordered by him. I have dealt with that case at some length because the facts of that case are uncommonly like the facts in the present case, and I wish to guard myself against being supposed to decide that, if the application had been for a mandamus to order payment to the chief constable of expenses incurred by him instead of being, as it is, an application for an order to make payments to certain tradesmen who provided food, &c., for the soldiers, that a mandamus might not have issued. I note, however, that there is no affidavit in the present case by Captain Lindsay, the chief constable, and that the affidavits as to his approval are very vague.

Appeal dismissed.

66

Held, that an owner of lands who was not also the Occupier was not the person liable to repair the highway" within the meaning of the subsection.

Cuckfield Rural District Council v. Goring (78 L. T. Rep. 530; (1898) 1 Q. B. 865) approved. THIS was an appeal from the decision of the Queen's Bench Division (Wills and Bruce, JJ.) upon a point of law ordered to be heard and disposed of before the trial of the action.

The action was brought under the Local Government Act 1894 to recover the sum of 1361., the amount of the expenses incurred by the plaintiffs in putting into proper repair a certain highway within their district.

(a) Reported by E. MANLEY SMITH, Esq., Barrister-at-Law.

[CT. OF APP.

The Local Government Act 1894 (56 & 57 Vict. c. 73) provides as follows:

Sect. 25, sub-sect. 2. Where a highway repairable ratione tenure appears on the report of a competent survey or not to be in proper repair, and the person liable to repair the same fails when requested so to do by the district council to place it in proper repair, the district council may place the highway in proper repair, and recover from the person liable to repair the highway the necessary expenses of so doing.

The highway in question was on land which was owned by the defendant, though it was not in his occupation, but in the occupation of his tenant.

The plaintiffs had requested the defendant to repair the highway and, on his failing to do so, had themselves done the repairs.

By their statement of claim they alleged that the highway was repairable ratione tenure.

By an order under Order XXV., r. 2, it was ordered that a point of law raised by the defendant in his statement of defence should be set down for hearing and disposed of before the trial of the action.

The question thus raised was whether an owner of land, who was not in occupation, was "the person liable to repair" within the meaning of sect. 25, sub-sect. 2.

The Queen's Bench Division (Wills and Bruce, JJ.), following the decision of a divisional court in Cuckfield Rural District Council v. Goring (78 L. T. Rep. 530; (1898) 1 Q. B. 865), held that such an owner is not liable to an action under sect. 25, sub-sect. 2, and gave judgment for the defendant. The district council appealed.

Bray, Q.C. and E. Morten for the district council. The decision of the court in Cuckfield Rural District Council v. Goring (ubi sup.) was wrong and should be overruled. First, under the old law an owner of land not in occupation of it was subject to an indictment for non-repair of a highway repairable ratione tenure. It is true that the Court for Crown Cases Reserved has held that such an owner cannot be charged ratione tenure with the repair of a highway:

Reg. v. Barker, 62 L. T. Rep. 578; 25 Q. B. Div. 213.

But on this point that case, it is submitted, was wrongly decided. The decision may be supported on the other grounds given by the court. Upon this point the decision of the court was based upon a placitum in Rolle's Abridgment (tit. Chimin Common (B) 2), which only refers to liability to repair ratione clausuræ :

Reg. v. Ramsden, E. B. & E. 949.

The point was argued in another case before the Court of Queen's Bench and the court considered it a doubtful one, but thought there was no need to decide it then:

Reg v. Sutton, 3 A. & E. 597.

But, secondly, even supposing that an owner not in occupation was not liable to be indicted, nevertheless, since the occupier, who undoubtedly was indictable, was entitled to recover from the owner the expenses of repairing, the owner was in effect, and is still, the person really liable to repair. That a tenant can recover from the owner any money he has been compelled to spend in repair of the highway is clear:

Baker v. Greenhill, 3 Q. B. 148.

The effect of that case is that the owner was

CT. OF APP.]

liable to repair, though his liability was not enforceable by the public, but was only enforceable indirectly by means of his tenant's right to be indemnified.

Rowsell (Macmorran, Q.C. with him) for the defendant.-No doubt the owner is liable to indemnify his tenant from the costs of repairing, but a liability to indemnify a tenant is very different from a liability to the public to repair a highway. I submit that Reg. v. Barker (ubi sup.) was rightly decided. The placitum in Rolle's Abridgment is repeated in Viner's Abrdgment (see Chimin Common, B. 2 and E. 12), and has always been accepted as correctly laying down the law. There is no decided case that an owner who is not also occupier is indictable. There is one case in which the judges had doubt as to an owner's liability where the land was lying fallow:

Nottingham's case, 2 Roll. R. 412.

But in such a case the owner, though not making use of the land, would in law be the occupier, and the case therefore does not support the plaintiffs' contention. As to Baker v. Greenhill (ubi sup.), the case turned on the construction of a local Act. The question here simply turns on the proper construction of sect. 25, sub-sect. 2. "The person liable to repair" means the person who can be compelled to do the repairs. The only alteration in the law which has been made by sect. 25, sub-sect. 2, is an alteration in the procedure by which the local authority, after repairing a highway which is repairable ratione tenuræ, can recover the expenses which they have incurred. It merely enlarges the remedy which was introduced by sect. 34 of the Highway Act 1862 (25 & 26 Vict. c. 61), which enabled a highway board to repair a highway repairable ratione tenure, and to recover the expenses from the person liable to repair upon a summons before justices at petty sessions.

Morten replied.

Lord RUSSELL, C.J.-This appeal raises a very narrow point, which I am disposed to deal with simply on the construction of the words of the statute. I do not wish to embarrass myself with what has been said by judges in earlier cases, nor to refer at all to such cases except as showing the state of the law in former days. Now, by sect. 34 of the Highway Act 1862 power was giren to a highway board, in case of the nonrepair of a highway by the person liable to repair it ratione tenure, to repair it themselves and recover the expenses upon a summons before magistrates. Before the passing of that Act the only mode of enforcing the repair of a road which was repairable by someone ratione tenure was by indicting the occupier of the land to which the liability to repair was attached. It was the occupier, and the occupier only, who was indictable. There is no reported case of an indictment of an owner of land who was not also the occupier. Such an owner was not indictable even though he had made an agreement with the tenant in occupation of his land that he would do the repairs. As I understand sect. 34 of the Highway Act 1862 it was intended to do no more than alter the procedure for enforcing a liability to repair ratione tenure. It was not intended to shift the onus of liability as it existed under the previous law. Then we come to consider the effect of sect. 25, sub-sect. 2, of the Local Govern

[CT. OF APP.

ment Act 1894. The words of the sub-section are that "where a highway repairable ratione tenure appears on the report of a competent surveyor not to be in proper repair, and the person liable to repair the same fails when requested so to do by the district council to place it in proper repair, the district council may place the highway in proper repair and recover from the person liable to repair the highway the necessary expenses of so doing." On a fair construction of those words, can anyone applying them to the previously existing state of the law say that they make the owner of land liable to repair? It was argued that, because an owner in certain cases is liable to indemnify the person who has done the repairs, be is therefore himself liable to repair. It seems to me enough to say that a liability to repair is not the same as a liability to indemnify someone else who has done the repairs. The sub-section was not intended to alter the previous law as to liability to repair a highway ratione tenure, but only the procedure for recovering the expenses incurred in repairing such a road. I think the appeal must be dismissed.

SMITH, L.J.-I am of the same opinion. I think that Cuckfield Rural District Council v. Goring (ubi sup.) was rightly decided.

WILLIAMS, L.J.—I agree. Appeal dismissed.

Solicitors for the plaintiffs, Kingsford, Dorman, and Co., for W. F. and W. Willoughby, Daventry. Solicitor for the defendant, A. J. Harman, for H. F. Bennett, Banbury.

Tuesday, Oct. 31, 1899.

(Before Lord RUSSELL, C.J., SMITH and
WILLIAMS, L.JJ.)

NEELD v. HENDON URBAN DISTRICT
COUNCIL. (a)

APPEAL FROM THE QUEEN'S BENCH DIVISION.
Highway-Right of passage Roadside strip-
Waste of manor — Land between fences-Pre-
sumption-Rebutting evidence.

On one side of a metalled road, which was a public highway, was an irregular shaped piece of land, formerly part of the waste of the manor, beyond which was an ancient hedge inclosing private property On the other side of the road was another ancient hedge. In 1864, by the licence of the lord of the manor, one of the copyholders dug up and carried away several cartloads of soil from the surface of this piece of land. In 1872, in accordance with the customs of the manor, the lord granted a licence to inclose the land, and admitted the licensee as copyholder thereof. In 1874 the copyholder inclosed the land by erecting a fence by the side of the metalled road at a distance of 15ft. from the centre of the road, the surveyor of the highway board assisting in setting out the line. In 1884 the fence, being decayed, was restored. In 1880 the lord of the manor enfranchised the land.

No objection was made by anyone to any of these acts until in 1897 the defendants threw down the fence, alleging that it was an obstruction to the highway.

Held, that, assuming that there was a primâ facie

(a) Reported by E. MANLEY SMITH, Esq., Barrister-at-Law.