3. The prisoner Toner pleaded "Guilty" to the first count contained in the indictment, and the other prisoners "Not Guilty" to both counts.

4. Evidence was given of a breaking and entering of the premises described in the indictment, on the 22nd Jan. 1900, and of property to the value of 801. having been stolen therein.

5. Evidence was also given that on the 6th Feb. the prisoner Toner, who is the uncle of the male prisoner Baines, left at the house of the prisoners Michael and Mary Baines, in Westmorelandstreet, Rainhill, in the county of Lancaster, some of the property referred to in the indictment, to wit, a silver lamp and a cigar box containing broken silver, and that the said silver lamp and cigar box was given to the prisoner Mary Baines by the prisoner Toner.

6. It was further proved on evidence that the detective, Albert Taylor, who made a search of the house, followed the prisoner Mary Baines to a house close to, that she went into this second house, and came out with the silver lamp referred to in the previous paragraph.

7. The prisoner Godfrey was acquitted, but the prisoners Michael and Mary Baines were convicted of feloniously receiving on the second count of the indictment, and a sentence of three months' imprisonment was passed upon each of them.

8. Counsel for the prisoner Mary Baines thereupon submitted, on the authority of Reg. v. Archer and others (1 Mood. C. C. 143), that the conviction was bad, inasmuch as, the charge being a joint one, no question of a separate receiving by the wife (the prisoner Mary Baines) had been left to the jury.

9. The point raised on behalf of the prisoner Mary Baines was argued by her counsel, who submitted that it was too late after sentence to cure the previous verdict by asking the jury whether the prisoner Mary Baines were guilty of a separate receiving.

10. After hearing counsel for the prosecution, the deputy-chairman overruled the objection, and after reading over the evidence to the jury, asked them whether or no the prisoner Mary Baines was guilty of a separate receiving.

11. The jury found that Mary Baines was guilty of a separate receiving and her counsel then applied for a case which was granted, the prisoners being admitted to bail pending the appeal.

13. The questions for the opinion of the court are: (1) Whether a husband and wife being jointly indicted for receiving stolen goods can both be convicted although the jury found a separate receiving on the part of the wife. (2) Whether the deputy-chairman, under the circumstances of this case, was acting legally in putting the question to the jury as to the separate receiving at that stage after verdict.

THOMAS COMBER, Deputy-Chairman.

V. D'Arcy for the Crown.-The fact that the prisoner was married is in itself no answer to the charge. As to part of the goods, she acted independently, and the case of Reg. v. Archer (1 Mood. C. C. 143), relied on by the defence, was decided before 24 & 25 Vict. c. 96, s. 94. He cited Reg. v. John, 13 Cox C. C. 100;

Reg. v. Cohen, 18 L. T. Rep. 489; 11 Cox, C. C. 99. [He was then stopped by the Court.]

The prisoner was not represented.

Lord RUSSELL, C.J.-We are concerned only to say whether Mary Baines was properly convicted of receiving these stolen goods. The evidence affecting her husband is not set out in the case, but it is clear that he was guilty of receiving a portion of the stolen goods; and there is nothing in the case to show that the deputy-chairman did not properly direct the jury. In par. 5 of the case which is submitted to us, facts are stated which show that beyond doubt there was ample evidence of a separate receiving by Mary Baines. Toner gave her the stolen articles, and there is nothing to show that the husband was present at the time. On this state of facts the judge ought to tell the jury that there is nothing in the marital relation per se to protect a wife, and he ought further to tell the jury that, even if the husband was in the immediate neighbourhood, it was a question for them to decide whether the wife was acting independently. This question was raised in a case to which my brother Wright draws our attention (Brown v. AttorneyGeneral for New Zealand, 77 L. T. Rep. 414; (1898) A. C. 234), and was answered by the Lord Chancellor as follows: "The mere fact that the parties are married never even formed a presumption of compulsion by the husband. Even as early as Bracton's time, if the wife was voluntarily a party to the commission of a crime, her coverture furnished no defence: (see Bracton, Book 3, c. 32)." There was, therefore, evidence on which the jury could properly convict Mary Baines of receiving part at all events of the stolen property in accordance with the provisions of 24 & 25 Vict. c. 96, s. 94. It is not necessary that we should consider the second question raised in the case. The question is whether after verdict and sentence the judge could give what is practically a new summing up. It is not necessary to decide that question, but if it was I should consider very carefully before I came to the conclusion that that course was proper.

LAWRANCE, WRIGHT, CHANNELL, and BUCKNILL, JJ. concurred. Conviction affirmed. Solicitor: H. E. Clare, Clerk of the Peace, Preston.

HOUSE OF LORDS.

April 3 and May 28, 1900.

(Before the LORD CHANCELLOR (Halsbury), Lords MACNAghten, Davey, BRAMPTON, and ROBERTSON.)

OVERSEERS OF DALTON AND OTHERS v. NORTHEASTERN RAILWAY COMPANY. (a)

ON APPEAL FROM THE COURT OF APPEAL IN ENGLAND.

Highway-Rate-Exemption-Liability to repair ratione tenuræ-Highway Act 1835 (5 & 6 Will. 4, c. 50), s. 33-Highway Act 1862 (25 & 26 Vict. c. 61), s. 35.

All the highways in a hamlet were repairable by the occupiers of lands ratione tenure, and highway rates were not leviable by reason of the exemption in sect. 33 of the Highway Act 1835. By an order of justices, made under sect. 35 of the Highway Act 1862, all the highways in the (a) Reported by C. E. MALDEN, Esq., Barrister-at-Law.

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hamlet were declared to be parish highways to be repaired by the highway board, and the sums to be paid by the occupiers formerly liable to repair in discharge of their liability were fixed, and duly paid.

Held (affirming the judgment of the court below), that the occupiers retained their previous exemption from the payment of highway rates, and that this exemption was not affected by the fact that the justices had imposed a merely nominal sum in discharge of the previous liability to repair.

THIS was an appeal from a judgment of the Court of Appeal (Smith, Williams, and Romer, L.JJ.), reported in 80 L. T. Rep. 587; (1899) 1 Q. B. 1026, who had reversed a decision of the Queen's Bench Division (Wills and Kennedy, JJ.), reported in 78 L. T. Rep. 524; (1898) 2 Q. B. 66.

The question arose on a case stated by the Court of Quarter Sessions for the North Riding of the county of York on the 22nd Oct. 1897, upon the hearing of an appeal by the NorthEastern Railway Company against a rate made for the relief of the poor in the parish of Dalton, in the said riding, and for other purposes chargeable thereon upon the 7th June 1897. It appeared from the case that (1) prior to the making of an order by the Quarter Sessions for the North Riding of Yorkshire at Michaelmas, 1880, constituting the hamlet of Islebeck a separate highway parish, and annexing such parish to the Birdforth Highway District the said hamlet formed part of the township of Bagby in the said district, and was a place in which all the highways were repairable by the occupiers ratione tenure and in which no highway rates were leviable by reason of the exemption contained in sect. 33 of the Highway Act 1835. The hamlet continued to form part of the township of Bagby until the 1st June 1886. (2) The North-Eastern Railway Company was, prior to the making of the said order, and still was in occupation of lands in the said hamlet and was, prior to the making of the order next hereinafter referred to, liable ratione tenure to repair a portion, to wit, 84 yards or thereabouts of a certain highway in the said hamlet. (3) Upon the 11th April 1881 an order was made under sect. 35 of the Highway Act 1862, whereby it was ordered that all the highways within the hamlet of Islebeck should become and for ever thereafter be parish highways and be repaired and maintained by the Birdforth Highway Board, and whereby the sums to be paid by the respective occupiers of lands within the said hamlet previously liable to the repair of the said highways in full discharge of all claims thereafter in respect of the repair and maintenance of the said highways or any of them or any part thereof were fixed. (4) On the 22nd Aug. 1881 the North-Eastern Railway Company was rated and assessed in respect of its said lands to a rate for the expenses incurred by the Birdforth Highway Board in repairing and maintaining the highways within its district, including the highways within the hamlet of Islebeck and for other expenses legally incurred by the board. An appeal, however, against the rate by the company to the said Quarter Sessions at Michaelmas, 1881, was allowed. (5) By an order of the Local Board, dated the 1st June 1886, and confirmed by the Local Government Board's Provisional Orders

Confirmation (Poor Law) Act 1887, the hamlet of Islebeck was detached from the township of Bagby and was amalgamated with the township of Dalton in the Birdforth Highway District. (6) On the 7th June 1897 a rate for the relief of the poor in the said parish of Dalton and for other purposes chargeable thereon was made, in which the North-Eastern Railway Company was rated and assessed in respect of its occupation of its said lands in the said hamlet of Islebeck. Such rate was levied (inter alia) in respect of expenses incurred or to be incurred by the Rural District Council of Thirsk, which council is the successor of the said Birdforth Highway Board, in respect of the repair and maintenance of the highways within the said rural district, including the portion of the said parish of Dalton which was or is comprised in the said hamlet of Islebeck. (7) The North-Eastern Railway Company duly gave notice of appeal against the said rate, and entered an appeal against such rate at the midsummer quarter sessions of the said riding, which appeal was duly respited until the following quarter sessions, when it was heard. (8) The appellants admitted that, subject to the matters contained in par. 9 hereof, the said rate had been duly made and demand therefor had been made. (9) On behalf of the company it was contended-(a) That, it having been decided in the appeal to the quarter sessions for the North Riding of the county of York, holden at Michaelmas, 1881, that the company was not liable to contribute towards the repair and maintenance of the highways in that portion of the parish of Dalton which was formerly the hamlet of Islebeck, the question was res judicata, and the quarter sessions was precluded from deciding otherwise in the present appeal: (b) that the company, having been liable to maintain the highways in the said hamlet of Islebeck ratione tenure, was exempted by sect. 33 of the Highway Act 1835, from liability to rates levied in respect of the repair and maintenance of such highways, and had continued to be exempt ever since; and (c) that the company, having complied with the requirements of the order of petty sessions referred to in par. 3 of this case, was by virtue of sect. 35 of the Highway Act 1862, discharged of all claims thereafter in respect of the repair and maintenance of the highways, or portions of highways, in the said hamlet of Islebeck, or any part of such highways, and was therefore not liable to pay the said rate. (10) On behalf of the respondents it was contended-(a) That the said decision of the quarter sessions on the 19th Oct. 1881, was final only for its proper purpose and object, which said purpose and object was that the North-Eastern Railway Company was not liable to pay a rate at 5d. in the pound made on the 22nd Aug. 1881, for the purpose of raising moneys payable under a precept of the said Birdforth Highway Board, and that the said decision was not conclusive evidence of the matters set out in par. 9 (b) and (c) hereof, which said matters only came (if at all) collaterally in question before the said sessions, or were only incidentally cognisable, or were at most only matters to be inferred by argument from the said decision; (b) that the exemption from the payment of highway rates conferred by sect. 33 of the Highway Act 1835, continued only so long as the liability of the said company to repair the said 84 yards (or there

costs.

Lord DAVEY.-My Lords: I am really unable to follow the learned counsel's argument that the railway company are liable to highway rates in this case. He says that the rate is imposed on all owners of property, which is quite true if they are not exempted by statute. He then says that the exemption lasts only so long as the liability to repair ratione tenure exists-and something to this effect was held in the case of Heath v. Overseers of Weaverham (70 L. T. Rep. 729; (1894) 2 Q. B. 108). Where does he find this in the Act? The exemption is to be found in sect. 33 of the Act of 1835 which enacts "that when property or the owner or occupier in respect thereof has previous to the passing of this Act been legally exempt from the performance of statute duty or from the payment of any composition in lieu thereof or of highway rate, the said property and the owners and occupiers thereof shall be exempt from the payment of the rate hereby imposed." That section, therefore, exempts persons from highway rates who were previously to the Act exempt. I observe in passing that the rate for the repairs of highways is none the less a highway rate levied under the Act (which is still in force) because for convenience it is now levied as one rate with the poors rate. But then under sect. 62 of the Act of 1835 and sect. 35 of the Act of 1862 powers are given to the justices to commute the liability to repair and maintain a highway ratione tenure for payment either of an annual sum or of a lump sum once for all, i.e., the person liable pays a sum certain to the highway authority to do the work instead of doing it himself. Obviously, therefore, if the exemption does not continue, he pays twice over-once in discharge of his liability ratione tenure, and again in the form of a highway rate. To get out of this difficulty, counsel argued that the payment ought to be fixed so as to represent the difference between the expense entailed by his former liability and what he would pay in the form of highway rates. But, in my opinion, this is a clear contradiction of the words and scope of the Acts. I concur in the judgment proposed.

Lord BRAMPTON.-My Lords: Many years before the General Highway Act 1835 (5 & 6 Will. 4, c. 50) was passed, the hamlet of Islebeck, an outlying part of the township of Bagby in the North Riding of Yorkshire, was a place in which all the highways were repairable by the owners and occu

piers of lands in the hamlet ratione tenure, who, by reason of such liability, were exempt from the performance of statute duty and from assessment to any highway rate. In the year 1880 the hamlet was constituted a separate highway parish annexed to the Birdforth Highway District. In March 1891 application was made by the highway board of that district under sect. 35 of the Highway Act 1862 (25 & 26 Vict. c. 61) that the highways in Islebeck then repairable by the respondents and three other occupiers of lands in the hamlet might be made parish highways to be thenceforth repaired and maintained by the highway board. The respondents opposed the applications, but, after hearing then and the other occupiersnamely, Cleasby, who was also waywarden of the hamlet, Knowlson and Feather, the justices on the 11th April made the order asked for-that such highways being altogether of the length of 3164 yards, should become and for ever thereafter be parish highways and be repaired and maintained by the Birdforth Highway Board. They also found by their order that the respondents were thus liable to repair 84 yards of the said highways, Cleasby 946 yards, Knowlson 1240 yards, and Feather 894 yards; and being required by the statute to fix the sum to be paid by such occupier respectively to the highway board they fixed the sum of 2d. as the amount to be paid by the respondents, 3d. by Cleasby, 4d. by Knowlson, and 3d. by Feather" in full discharge of all claims thereafter in respect of the repair and maintenance of the said highways or any part thereof." Each of these sums was duly paid. On the face of this order it would appear to be most unfavourable to the highway board, who by it were made for ever responsible for the repair of upwards of a mile and three-quarters of highways for mere nominal sums in the aggregate amounting to 1s. only. That there was no appeal, however, against that order, as there might have been, will not be a matter of surprise to those who a little carefully consider the probable though somewhat diverse views of those interested in the matter. The highway board desired to obtain the entire control of the highway under consideration, and, without seeking legal advice, assumed that on the extinction of the liability of the occupiers to repair, the extinc tion of the exemption from the highway rate would follow as a matter of course by which they would be abundantly indemnified. They, therefore, were content, and asked for no other security against the costs of the repairs. The occupiers other than the respondents, one of them being the waywarden, probably knew and approved of the action of the board, knowing that a highway rate, if imposed, as they took it for granted it would be, would be assessed without regard to the extent of the liability to repair of each individual occupier, but on the rateable value of their holdings, and that the railway of the respondents would be assessed at a far greater amount than would represent the share of the repairs for which the respondents were responsible, and that such excess would be to their advantage in that it would lessen their own assessments. They, therefore, looked cheerfully on the order; while the respondents probably more accurately advised as to the highway rate when they saw that on payment of the 2d. awarded by the order they were to be relieved for ever of all future obligation in respect of their 84 yards.

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were not indisposed to let the matter rest as settled by the justices. Anyhow as neither party appealed each became finally bound by it and its legal consequences. In the following August, when the time for appealing had expired, the respondents were speedily enlightened by the highway board as to its views and intentions; for on the 16th of that month a rate " for the necessary repairs of the highways of Islebeck at 5d. in the pound" was made and signed by Cleasby, the waywarden. In this rate the total rateable value of all the assessable property in the hamlet was stated as 1521l. 15s. and the amount to be levied as 341. 178. 3d. Of these sums 10997. 10s. was assigned as the rateable value of the railway occupied by the respondents, and 251. 38. 11d. as the amount payable by them, leaving 4221. 58. only as the rateable value of the united holdings of all the other occupiers, and 9l. 13s. 4d. only as the amount payable by them. These figures are somewhat startling when one realises what they mean as contrasted with the past liabilities ratione tenure of the parties respectively. The 84 yards of highway the respondents were bound to repair represented about one-fortieth part of the whole length of the highways in the hamlet, the other occupiers being responsible for 3080 yards, while by the rate as made threefourths of the amount to be levied was charged on the respondents, and one-fourth only on all the other three occupiers-amounting practically to a charge against the respondents of 68. per yard for their 84 yards, but against the other occupiers a fraction under three farthings only. Against this rate the respondents lodged an appeal which was allowed by the quarter sessions, and the names of the respondents were struck out of the rate upon the ground that they were then exempt from any liability in respect of the repair of the said highways. Between that time and the year 1897 no further attempt was made to assess the respondents to such a rate. In June 1897, however, Islebeck having in the meantime been separated from Bagby and amalgamated with the township of Dalton, in the Thirsk Poor Law Union, a fresh experiment was made to impose a highway rate on Islebeck, but this time it assumed the form of a rate at 11d. in the pound for the relief of the poor of the parish of Dalton "and for other purposes chargeable thereon," such other purposes being the expenses incurred by the Thirsk Rural District Council, in respect of the highways within that district. In this rate the respondents were assessed upon the same rateable value as in the rate of 1881-the sum sought to be recovered from them being over 501. Against this rate the respondents duly appealed, but, on the hearing, the appeal was dismissed by the quarter sessions subject to the special case now before this House, which was first argued before a Divisional Court of the Queen's Bench who affirmed the decision of the quarter sessions. The Court of Appeal, however, having unanimously reversed that judgment, your Lordships are now called upon finally to determine the matter, two substantial questions being stated for your consideration, first, whether the justices who heard the appeal against the 1897 rate were bound by the decision of the justices who heard and determined the appeal against the rate made in 1881 ? As to which my strong impression is that they were not so bound, but, in

view of the opinion which I have formed as to the second question, I do not feel it necessary to give a more definite answer. The second question, whether the respondents are exempt from the payment of so much of the rate as was assessed in respect of the repair and maintenance of the highways in the hamlet of Islebeck, ought, in my opinion, to be answered in the affirmative. That the rate so far as it was made to provide funds for the repairs of the highways, although incorporated in, and by statutory authority collected with the rate for the relief of the poor was to all intents and for all purposes a highway rate within the meaning of sect. 27 of the Act of 1835, admits of no reasonable doubt. The incorporation and collection together of the poor and highway rates as one rate was allowed as a mere matter of convenience, and cannot in the least degree affect the exemption from the highway rate which had existed from time immemorial, and was expressly confirmed and made the subject of express enactments by sect. 33 of the Act of 1835. Such enactment could not be extinguished without legislative interference which is nowhere to be found, nor could it reasonably be looked for, considering that the Legislature by sect. 35 of the Act 1862 in allowing justices to order the transfer of the liability of the occupiers to repair the highways to the highway board has enabled them at the same time to fix amounts, and order those amounts to be paid by the occupiers who are relieved of their obligations to the highway board by way of commutation or indemnity in respect of the new liability cast upon it. In the whole of that enactment I find no trace of any intention to impose a highway rate upon such occupiers in addition to those fixed amounts. Certain I am that if such an intention existed some apt words would have been used to express it. The 62nd section of the Highway Act 1835, though superseded and amended and re-enacted by the 35th section of the Act of 1862, throws valuable light upon the intentions of the Legislature in directing the justices to fix a sum to be paid by each occupier about to be relieved of his liability to repair. It expressly empowered the justices alternately to order either an annual sum to be fixed by them as the proportion of the expenses of repairing such highway to be paid by such occupiers to the surveyor of the highways; or, instead of fixing such proportion, to fix a certain sum to be paid in full discharge of all claims thereafter in respect of the repairs of such highways giving certain directions for the investment of such latter sum. I cannot understand how it can be doubted that the object of the Legislature in 1835 was, when it relieved the occupier of his liability ratione tenure to repair and shifted such liability on to the highway authority, to impose upon such occupier the obligation to pay to that authority an annual sum; or one amount to be fixed by the justices, the interest of which invested would yield an annual amount sufficient to cover the expenses of that portion of the highway for the repair of which he had been relieved of his liability; no more, no less. The object of the Legislature in 1862 was to provide for the future repairs by one fixed sum only. A competent bench of justices would find no difficulty in fixing either of these sums, if the highway authority thought fit to place the proper materials for so doing at its disposal. An analogous proceeding is