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shall have power by any instrument under their common improving and keeping in repair the streets, seal, to contract for or to purchase, any lands, tenements,

squares, and other public passages which are and or hereditaments, provided the same do not exceed the

shall be made upon certain pieces of ground in the value of 4000k a year in fee beyond repairs, or to take or purchase for any term or terms of years, or as tenants

parishes of St. Pancras, St. George the Martyr, from year to year or at will, any lands or tenements and St. George Bloomsbury, or some or one of whatsoever, to hold and enjoy the same, and to erect any them in the county of Middlesex belonging to the house or houses, building or buildings thereon, or to con. hospital for the maintenance and education of vert any house or houses, building or buildings which they shall so purchase or hire for that purpose, to be an

exposed and deserted young children, commonly hospital or hospitals for the reception of such poor and

called the Foundling Hospital.”. By this Act, after exposed children, in such manner as to the said corpora. reciting that the governors and guardians of the tion shall seem meet, and be it further enacted by the hospital were seised for the use of the hospital of authority aforesaid, that all and every h. use or houses, certain pieces of ground containing 56 acres, or there lands, tenements, or hereditaments, which shall at any

abouts, situate in the several parishes of St. Pancras, time hereafter be purchased or hired by the said corpora tion, to be used and converted into an hospital or hos

St. George the Martyr, and St. George Blooms. pitals as aforesaid, or on which any such hospital or hos

bury, in the county of Middlesex, or some or one of pitals, house or houses, shall be erected, shall at all times them, and that several persons had entered into hereafter, whilst such house or houses, lands, tenements, contracts with the said governors and guardians or hereditaments, shall continue in possession of the said

for laying out and building several streets, squares, corporation, be rated and assessed to all rates and assess. ments, at such yearly rates and value, and in such

and other public passages and places upon the said proportion as such house or houses, lands, tenemente. pieces of ground, and that the same were then or hereditaments were rated and assessed in the year carrying on, and that it would contribute to the 1739, and shall not at any time hereafter so long as benefit and safety of all persons who were or they shall continue in the possession of the said corpora- should become inhabitants of the said several tion as aforesaid, be rated or assessed at any higher value notwithstanding any improvement which shall be

streets, squares, and other public passages and hereafter made by the said corporation, of or upon the

places, and to all persons who should have occasion same, by erecting any such house or houses, or other to pass along the same if provision was made for building or buildings, or by converting any building or fencing and paving, or otherwise repairing and buildings into such hospital or hospitals, house or houses, keeping in repair such intended streets, squares, any laws, statute, or usage to the contrary notwithstanding.

and other public passages and places, and also for

cleansing, lighting, watching, and watering, and 2. In the year 1747, the corporation purchased keeping the same free from all nuisances, annoythe freehold estate on part of which the hospital ances, and encroachments; it was enacted that now stands. It consists of about 56 acres, lying certain persons therein named should be commis. in one block, and was at that time open ground, sioners for carrying the Act into execution for the but with the exception of the inclosed space sur- term of three years, and that in May 1795, and in rounding and attached to the hospital building, every succeeding year, the governors and guardians it is now covered with houses, and may be de- of the hospital should at their annual meeting, to scribed roughly as lying between Guildford-street be held under their Act of Parliament, elect twentyon the south, Tavistock-place on the north, one of the said governors and guardians to be Russell-square on the west, and Gray's-inn-lane on commissioners for the succeeding year, and at the the east. It is situate in the three parishes of same time certain of the inhabitants, being house. St. Pancras, St. George the Martyr, and St. holders residing within the limits of the Act, should George, Bloomsbury. The hospital building itself elect twenty-one persons, having certain property was commenced about 1742, and finished about qualifications within the limits of this Act as com1752.

missioners to act jointly with the twenty-one 3. The portion of the lands so purchased, and governors and guardians of the hospital. All the still held by the hospital, were rated and assessed pavements of the carriage-ways, and footways, and in the year 1739 to the poor rate of St. Pancras, things purchased or gotten for the purposes of the at the yearly ra'e and value of 2751. gross and 2341. Act, are vested in the commissioners, and the comnet, and the governors and guardians of the said missioners are empowered to cause the several hospital, since they acquired the aforesaid lands streets, &c., then or thereafter to be made within down to the present time, have been uniformly the limits of the Act to be pa ved, and such paverated and assessed in respect of the said lands, ments to be kept in good repair, and to cause the and of the offices and buildings thereon, used for streets, squares, and other public passages and the purposes of the hospital, at the yearly rateable places, to be cleaned, lighted, and watched, and value of 2341. to all rates and assessments whatso- watered, and the sides thereof, and also the middle ever, except such as were made under, and by of any squares, to be fenced or enclosed with iron virtue of, the 34 Geo. 3, c. 96, as hereinafter men- rails, and all encroachments, obstructions, nuisances, tioned.

and annoyances therein to be remored, and drains, 4. Up to 1790 no building leases were granted sinks, gutters, and watercourses to be made for by the hospital on their estate, but in that year conveying the water off from the streets, &c., and a committee was appointed, empowered to grant it is provided that no person shall (under a penalty) leases, and determine, amongst other things, what alter the form or break up the ground or pavements proportions, if any, of the expense of railing and of the carriage ways or footways, within any of the maintaining the new squares (that is, Mecklen- said streets, &c., or make the same otherwise than burgh and Brunswick-squares), and their pave- as should be directed by the commissioners. The ments, should be borne by the hospital.

commissioners are also empowered to cause lamps 5. In consequence of the large building opera- to be set up in the streets, and the houses to be tions now projected and commenced, the hospital named and numbered, and to cause the water to applied for and obtained in 1794 an Act of Parlia- be conveyed from the roofs of houses by pipes, ment, entitled “ An Act for paving, cleansing, and from them into the common drains or sewers. lighting, watching, watering, and otherwise 6. With regard to the expenses of carrying out

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[Q. B.

middle spaces

the purposes of the Act, it is provided that one or 10. In the year 1829 the Police Metropolitan more rate or rates, assessment or assessments, for Act (10 Geo. 4, c. 44), was passed. By that Act, the purpose of repairing, paving, cleansing, light- sect. 19, the night watch within their district was ing, watering, and watching of the several streets, discontinued, and the power of assessing and levy. &c., within the limits of the Act, should be laid and ing any rate for that purpose ceased. By sect. 23 assessed by the commissioners once or oftener in a rate for the metropolitan police became leviable one year, upon all persons who should inhabit, according to the valuation for the time being acted hold, use, occupy, possess, or enjoy any land, upon in assessing the county rate. Accordingly ground, house, shop, warehouses, coach houses, from and after the passing of that Act down to the stable, cellar, vault, building, or tenement in any present time the governors and guardians of of the said streets, squares, and other public pas- the said hospital ceased to be rated under the sages, and places, in such sum or sums of money 34 Geo. 3, c. 96, for watching the streets and as the commissioners should direct; but so that squares aforesaid, and have been rated for the the rates or assessments for any one year should metropolitan police upon the basis of the county not exceed the following sums: For paving, cleans- rate under the said Act of 1829 at the yearly rate ing and lighting, 2s. in the pound, according to and value of 2341. rateable value. the yearly rent or value of such houses, &c.; for 11. For many years before and at the time of the railing and ornamenting the areas

passing of the Metropolis Local Management Act of the squares, ls. in the pound, according to the (18 & 19 Vict. c. 120) in 1855 the governors and yearly rent or value of such houses as should be guardians of the said hospital continued to be erected and built in such squares; for watching rated under the 34 Geo. 3, c. 96, for all the purthe said streets, &c., 6d. in the pound according to poses of that Act, except that of watching upon the yearly rent or value of the houses, &c., situate the basis of value above stated, 12441., being the within the limits of the Act; and for watering such actual amount upon which the rate was made. streets, &c., 6d. in the pound according to the 12. In 1855 the Metropolis Local Management yearly rent or value of the houses, &c., situate Act was passed and came into operation on the within the respective squares and other public 1st Jan. 1856. This Act recites that it is expedient passages and places to be watered in pursuance that provision should be made for the better local and according to the directions of the Act, and the management of the metropolis in respect of commissioners were to cause separate and distinct sewerage and drainage, and the pavement, cleanaccounts to be kept of the produce of the respec- sing, lighting, and improvement thereof. tive rates or assessments, and of the application of 13. The government of the metropolis for the the same respectively.

purposes of the Act is placed under the control of 7. The annual value of the tenements to be rated

the Metropolitan Board of Works and of certain and assessed, was to be rated and ascertained ac- local district boards of which the St. Pancras cording to the real rack rent or full yearly value parish is one. thereof, or in any fair and equal proportion of such 14. The principal sections relative to rating and real rack rent or full yearly value as the commis- assessment are as follows: sioners should think proper.

Sect. 161 : 8. There is a special provision in the Act as to

The overseers of the poor of every parish to whom any the assessment of the hospital as follows:

such order as aforesaid is issued, shall levy the amount Provided also that the aforesaid hospital, commonly mentioned therein according to the exigency thereof, and called the Foundling Hospital, and the offices, buildings, shall for that purpose make separate equal pound rates and grounds, belonging, or to belong thereto, and used upon their parish, or the part thereof upon which any for the purposes of the hospital, shall be rated or as- sum specified in such order is required to be levied in sessed for all or any of the purposes of this Act, after respect of each sum thereby ordered to be levied, that is and according to such annual sum or value as shall be to say, a separate rate in respect of each sum ordered to equal to three-fifth parts of the amount of the several be levied for paying expenses connected with sewerage, annual values which shall be rated or assessed upon the to be called a sewers rate. A separate rate in respect of several houses abutting upon Guildford-street from Mil. each sumrdered to be levied for defraying expenses of man-street to the mews opposite to Lansdowne-place, lighting (where a separate sum is ordered to be levied for and the several houses now built or hereafter to be built defraying such expenses) to be called a lighting rate. abutting and adjoining upon such other streets or ways And a separate sum in respect of each sum ordered to be as do or shall immediately adjoin the boundary walls or levied for defraying other expenses of executing this Act, fences of the said hospital.

to be called a general rate, and shall make such respecIn the course of about thirty years from the

tive rates of such amount in the pound on the annual

value of the property rateable, as will in their judgment, commencement of operations in 1790, the whole of

having regard to all circumstances, be sufficient to raise the hospital estate was laid out in squares and the sums specified in such order; and such rates shall be streets and let on building leases for terms of, in levied on the persons and in respect of the property by most cases, ninety-nine years, except the portion

law rateable to the relief of the poor in the respective of ground inclosed by the walls of the hospital

parishes, and shall be assessed upon the net annual value itself and retained for its use.

This inclosed por

of such property ascertained by the rate for the time

being for the relief of the por ; and the said Jverseers tion of about nine acres in extent is wholly within shall for the purpose of levying such rates proceed in the St. Pancras parish.

same manner, and have the same powers, remedies, and 9. From the time of the passing of the 34 Geo.

privileges as for levying money for the relief of the poor ; 3, c. 9 (A.D. 1794) down to the passing of the Police

and all such rates shall be allowed in the same manner, Metropolitan Act (10 Geo. 4, c. 44, A.D. 1829) the

and be subject to all the same provisions in relation to

appeal, and to excusing persons from payment on account governors and guardians of the said hospital were

of poverty and otherwise as the rate for the relief of the rated and assessed by the commissioners appointed poor in the same parish, and such overseers shall pay to under the 34 Geo. 3, c. 96, for all the purposes of

the treasurer of the vestry or board, or otherwise as in the said Act, including that of watching the streets

such order directed, the amount mentioned in the order

within the time or respective times specified for that purand squares, &c., within the limits of the said Act,

pose, and the excess if any which may have been levied on a value ascertained in a manner provided by beyond such amount, which excess shall be placed to the the said Act as above mentioned.

credit of the parish, or part in which the same has been

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[Q. B.

c. 103.

levied. And the said overseers shall at the time of value of 2341. rateable value. Since the passing making any such payment deliver with the money a note of the said Act they have paid sewers rates to the in writing signed by them specifying the amount so paid, which note shall be kept as a voucher for the receipt of

parish of St. Pancras upon the same value as that particular amount, and the receipt of the treasurer

above stated. of the vestry or board of any proper officer or person of, 18. On the 9th Aug. 1869, the Valuation Metroor belonging to any bank into which such money is so polis Act 1869 was passed to provide (according to paid specifying, the amount so paid to him by the the preamble) a common basis of value for the pur. overseers, shall be a sufficient discharge to the overseers for such amount.

poses of government and local taxations, and to

promote uniformity in the assessment of rateable Sect. 162:

property in the metropolis. This Act incorporates Provided always that all such hospitals, public schools, in it sects. 17 to 21, inclusive, of 25 & 26 Vict. and other public buildings, dead walls, and void spaces of ground as are now by law rateable to any rate for the 19. By sect. 45 of the said Act it is enacted as costs and charges of paving or repairing the pavements

follows:within any parochial or other district, either separately

The valuation list for the time being in force shall or jointly with any other object or objects (except only

be deemed to have been duly made in accordance with places of religious worship and burial grounds), or places which have been used for burial grounds and are not

this Act, and the Act incorporated herewith, and shall used for any other purpose, shal be rateable under this

for all or any purposes in this section mentioned be conAct to the like extent and for the like objects or pur.

clasive evidence of the gross value and of the rateable

value of the several hereditaments included therein, and poses as they may no · be rated, and the rates to be mado in respect of such objects or purposes shall be parble

of the fact that all hereditaments required to be insertel by the persons now liable to piy the same, and be re

therein have been so inserted, that is to saycoverable in like manner as any rate to which ruch build

(1.) For the purpose of any of the following rates, ings and spaces of ground are now rateable as aforesaid

which are made during the year that the list is in force, in respect of like objects or purposes.

namely, the county rate, the metropolitan police rate,

the church rate, the highway rate, the poor rate, the 15. The following sections relate to the repeal police, sewers, consolidated, and other rates in the City and varying of inconsistent or conficting local of London ; the sewers, lighting, general, and other rates Acts.

levied by order of district boards or vestries, the Sect. 247:

main drainage improvement, and other rates and sums All Acts of Parliament in force in any parish or

assessed on any part of the metropolis by the Metro place to which this Act extends, or in any part of such

politan Board of Works, assessments for contributions parish or place shall, so far as the same are inconsistent

under the Metropolitan Poor Rate 1867, and every other wit

rate, assessment, and contribution levied, made, and rethe provisions of this Act be repealed as regards such parish or place, or such part thereof, notwithstand

quired in the metropolis on the basis of value. ing any provisions of this Act continuing and transferring

(2.) For the pnrpose of any of the following taxes

which become chargeaole during the year that the list is respectively to vestries or parishes, and transferring to district boards any duties, powers, authorities now or

in force, namely :

(a) The tax on houses, levied under the House Tax Act vested in vestries, commţssioners, or other bodies.

and the Act therein incorporated or referred to. Sect. 248:

(b) Any tax assessed in pursuance of the Income Tax Upon the petition of the Metropolitan Board of Works, Act, and any Acts continuing or amending the same on or of any district board or vestry representing to Her any lands, tenements, and hereditaments in all cases where Majesty in Council, that by reason of the provisions of the tax is charged on the gross value and not on profits. any local Act of Parliament relating to any district or (3.) For the purpose of determining so far as it is parish, or any part thereof respective y, difficulties have applicable, the value of any hereditament included arisen in the execution of this Act and of such local Act, therein for the purposes of the Acts relating to the sale or either of them, and praying for a suspension or altera- of exciseable liquors, to the qualification of a juror, to tion of all or any of the provisions of such local Act, or the qualification of a vestryman, and an auditor of for the establishment of other provisions in lieu thereof, accounts under the Metropolis Management Act 1855, under this enactment, it shall be lawful for Her Majesty, and to the qualification of a guardian, and of a manager by order in council, to suspend or alter all or any of the under the Poor Law Amendment Act 1834, or the Metro provisions of such local Act, and to make other provisions polita Poor Act 1867, at any time at which such value in relation to the matters thereof, as Her . ajesty, with is required to be ascertained. the advice of Her Privy Council, may think necessary And in construing the Metropolitan Police Act and the under the circumstances of the case, and every such Acts amending the

same, the last valuation for the time order in council shall be laid before both Houses of being acted upon in assessing the county rate shall be Parliament within one month after the making thereof, if deemed to mean the valuation list for the time being in Parliament be then sitting, or if Parliament be not sittir g, force. then within one month after the next meeting of Parlia. And in construing the Connty Rate Act and Acts rement, and shall be published in the London Gazette. ferring to the valuation estimate basis or standard for Provided always, that no such order in council shall the county rate, the valuation estimate, basis or standard remain in force beyond the term of one year from the shall be deemed to be the rateable value stated in such making thereof."

list. 16. From and after the passing of the Metro

And in construing the House Tax Act and the Acts politan Local Management Act down to the pre

therein incorporated or referred to, the full and just

yearly rate shall be deemed to be the gross value stated sent time the governors and guardians of the said in such list. hospital have ceased to be rated for the purposes And in constrning the Inc ine Tax Act and Acts con. of paving, lighting, cleansing, or any other pur- tinuing or amending that Act with respect to schedules pose whatsoever within the limits of the 34 A. and B. thereof, annual value shall be deemed to mean Geo. 3, c. 96, and have been rated for the purposes

the gross value stated in such lists. of the Metropolitan Local Management Act within

20. By section 54 it is provided thatthe parish of St. Pancras as well as to all other

Nothing contained in this Act, or the Act incorporated

herewith, shall affect any exemption or deduction from, rates up to April 1867 at the yearly rent and value

or allowance out of, any rate or tax whatever, or any priof 2341. gross, and 2341. rateable value, and since vilege of or provision for being rated or taxed on any that time of 2751. gross, and 2341. rateable value. exceptional principle of valuation.

17. Up to the passing of the Metropolitan Local 21. On the hearing of the appeal the appellants Management Act, the governors and guardians of contended that the sums 2751. gross and 2341. net the said hospital paid sewerage rates to the com- should alone be inserted in the valuation list, such missioners of sewers upon the yearly rate and sums being the sums ascertained in the manner Q. B.]


[Q. B.


pointed out by the Foundling Hospital Act (13 rateable value as they have done. The object of 32 Geo. 2, c. xxix.)

& 33 Vict., c. 67, was to produce uniformity of assess22. The appellant further contended that in ment, rates having formerly been made on the annual every case the entry as it at present stands is im- value as stated in the Parochial Assessment Act, proper and insufficient, and that if the actual gross the mode of arriving at the annual value being and rateable value is entered at all, it ought to be ac- different in different parishes. The Union Assesscompanied with such special note or instructions as ment Committee Act (25 & 26 Vict. c. 103), ss. would prevent the parish officers from making the 17-2', is by sects. 6 and 7 of the 32 & 33 Vict. rates referred to in sect. 45 of the Metropolis Valua- C. 67, to be read with this latter part, and the tion Act 1869, upon such actual value, and would assessment is to be made accordingly. The direct them to make the rates on the value ascer- valuation list so made is by sect. 45, to be tained, as provided by 13 Geo. 2, c. xxix.

clusive evidence of the gross value and of the 23. The respondents contended that the true rateable value of the several hereditaments ingross and rateable value of the said property, as cluded therein, and of the fact that all hereditadefined by the Valuation Metropolis Act 1869, ments required to be inserted therein have been should be inserted in the valuation list, leaving the so inserted,” for the purposes of the various rates parish officers when making the poor rate to and taxes mentioned therein. Sect. 54 provides make it on this exceptional principle of valuation for exceptional principles of valuation to be referred to in the statute of Geo. 2, and when applied in any particular case, enacting that making the general rate under sect. 161 of 18 & 19 “nothing contained in this Act, or the Act inVict., c. 120, for maintaining, paving, and repair- corporated herewith, shall affect any exemption ing, &c. the roads, &c., and for the payment of the or deduction from, or allowance out of any rate or interest on the bond debts of the extinct paving tax whatever, or any privilege of, or provision for, trust to make such general rate on the exceptional being rated or taxed, on any exceptional principle principle of valuation referred to in the statute of of valuation." The assessment committee are Geo. 3.

bound to insert in the valuation list the true gross 24. The respondents further contended that, at and true rateable value: it is not for them to any rate, the sum of 2751. gross, and 2341. net, apply or make allowance for the exceptional prinought not alone to appear in the list but that ciples of valuation saved by sect. 54; that is some special entry ought to be made in the valua- the business of the particular local authority in tion list, with reference to the appellants' property, each case. All the assessment committee have to so as to enable the parish officers properly to do, is to see that the true gross and true rateable make the rates referred to in sect. 15 of the value of all the property in the metropolis are Metropolitan Valuation Act 1869.

contained in the valuation list. It is submitted 25. The court of general assessment sessions that they were right in doing this, and refusing to confirmed the valuation list in order that the take account of the exceptional principle of valuaopinion of the court might be taken on the before- tion contained in the Foundling Hospital Act mentioned questions of law.

(32 Geo. 2, c. xxix). 26. The Acts referred to herein are to be taken Millward, Q.C.and Fullarton for the form part of this case.

The assessment committee, in making the valuation 27. The questions for the opinion of the court list, should have taken into account the exceptional are: first, whether the true gross and rateable principle of valuation affecting the property of the value of the appellants' property now in their oc- appellants by virtue of the Foundling Hospital cupation, as defined by the Valuation Metropolis | Act (34 Geo. 2, c. xxix.), all exceptional principles of Act 1869, should be inserted in the valuation list; valuation being expressly saved by sect. 54 of or, secondly, whether the gross and rateable value 32 & 33 Vict., c. 67. No provision is made for of such property for the purpose of such list, any appeal from the determination of the assessshould be ascertained as pointed out by the Found- ment committee as to the rateable value of property, ling Hospital Paving Act (34 Geo. 3, c. xcvii); or, and by sect. 45, the assessment is to be conclusive thirdly, whether the gross and rateable value of for five years as to all taxes named in that section. such property for the purposes of such list should [COCKBÚRN, C.J.-But sect. 54 preserves you the be ascertained in the manner pointed out by the benefit of the exceptional principle of valuation Foundling Hospital Act (13 Geo. 2, c. xxix.); contained in your Act.] The committee should fourthly, whether the valuation list should contain have made allowance for that. [COCKBURN, C.J.a special entry showing, in addition to the true Are you pot complaining before you are hurt? gross and rateable value of such property, the When a rate is made affecting you, you will be gross and rateable value ascertained under the entitled to the benefit of the privilege contained in said Acts of Geo. 2 and 3, or either and which of your Act; but the assessment committee are not them, and whether it should contain any and what imposing a rate, they merely prepare a statement instructions as to the making or rates on the said of value.] At any rate there ought to be a memovalues respectively,

randum attached to the entry in the valuation 28. If the court should be of opinion that the list, pointing out that the appellants' prosaid property ought not to be charged and assessed perty is entitled to the privilege conferred by the in the valuation list in either of such before men- Foundling Hospital Act. [COCKBURN C.J.-What tioned ways, then the court to decide in what way power have we to order the committee to do that? it should be valued and assessed in such lists. And what would such a direction amount to, but

29. The case to go back to the general assess- simply calling their attention to the 54th section of ment sessions to alter the valuation list in accord- the Act. We can only say that the valuation list ance with the judgment of the court.

must be made according to the Act of Parliament.] Poland, for the respondents, showed cause. It COCKBURN, C.J.-It is unnecessary to add anywas the duty of the general assessment committee thing to what we have said in the course of the to enter on the valuation list the true gross and argument. This is neither a rate nor an assessmade, any

Q. B.]
Easton (app.) v. RICHMOND HIGHWAY BOARD (resps.)

[Q. B. ment, but only a valuation with a view to an Now, therefore, the said justices, in compliance assessment, and the appeal must be dismissed. with the said application, and the provision of the MELLOR and HANNEN, J.J., concurred.

said statute, and by consent of the parties, hereby

Appeal dismissed. stated and signed the following case. Attorneys: J. T. Simpson ; W. T. Cooper.

Upon the hearing of the said information it was admitted on the part of the appellant, and found as

facts : Saturday, Nov. 18, 1871.

That the carriage way mentioned in the informaEaston (app.) v. RICHMOND HIGHWAY BOARD (resps.) tion is a highway repairable by the township of Highway Act 1864 (27 & 28 Vict. c. 101) s. 51– West Layton, and the portion of the highway on

Conviction for encroaching upon highway-Side which the alleged encroachment was made, runs

of carriage way not dedicated to the public. across the village green of West Layton aforesaid By sect. 51 of the Highway Act 1864, a penalty is for the distance of 200 yards or thereabouts, into

provided upon summary conviction, if any per- another highway, leading from the said village of son shall encroach by making or causing to be West Layton to the village of Caldwill.

building, or pit, or hedge, ditch, or other That the appellant is lord of the manor of West fence, on the side or sides of any carriage Layton, and the whole of the vıllage, the green, and way or cartway, notwithstanding that the whole the property around belongs to him. space of 15 feet from the centre of such carriage That before the alleged encroachment, the way or cartway has not been maintained with portion of the highway which crosses the said stones or other materials used in forming high- village green was wholly unenclosed, and the width ways."

of the metalled road crossing the green was 8ft.; the Upon a case stated by magistrates, who had con- grass came up to the metalled road, and there was victed the owner of the neighbouring soil of en- no difference between the grass adjoining the croaching upon a highway by building a wall metalled road and the rest of the green. within 15 feet of its centre, but upon part of a

That on the south side of the road, crossing the green which the carriage way crossed, and which green for the greatest part thereof, the ground had never been dedicated to the public.

sloped gradually from the metalled road to the Held that this section did not relate to any ground extent of from lft. to 2ft., or an average of lift. all

which was not part of the highway, and that the the way down the village green, and on the north conviction was wrong:

side there was a hollow at about 3ft. distance from This was a case stated by two of her Majesty's the metalled road, but neither the slope nor the justices of the peace in and for the division of hollow were of such a character as to prevent Gilling West in the North Riding of the county of carriages or other vehicles passing along or cross

York, under the statute 20 & 21 Vict. c. 43, for the ing the same, if it were necessary to do so for the purpose of obtaining the opinion of the court on purpose of avoiding any carriage or other vehicle questions of law which arose as hereinafter stated. travelling in a contrary direction, although for a

At a petty sessions holden at Richmond in and few feet in two or three places rather more than for the division of Gilling West, in the North ordinary care would require to be taken to avoid Riding of the county of York on the 3rd any danger of overturning. On the east side of Sept. 1870, an information was preferred by John the village green, before entering on the green, Hodgson (hereinafter called the respondent), the the road is for a short distance enclosed between surveyor of the Richmond Highway District hedges, and the width of the enclosed part, includBoard, in the North Riding of Yorkshire, against ing the waste on the side of the road, is 12ft. from John Easton (hereinafter called the appellant), for hedge to hedge. The road is very little used. that he, the said appellant, on or before the 1st That the appellant had lately enclosed the road Aug. 1870, at West Layton, in the parish of across the said village green, for nearly the whole Hatton Long Villiers, unlawfully did encroach on length thereof by building a wall on each side the side of a certain carriage way there situate, thereof. The said wall is built at the foot of the called the East Layton Road, within 15 feet of the said slope on the south side of the road, and in the centre thereof, by making, or causing to be made, said hollow on the north side thereof, and upon a certain building, to wit, a stone wall thereon, both the north and south side the wall is built contrary to the form of the statutes in such case upon the green, and about 4ft. from the metalled made and provided : and was heard and determined, road. The width from wall to wall is 16ft. the parties respectively being then present, and That the said village green had generally been upon such hearing the appellant was duly con- depastured by the tenants of the adjoining farms, victed of the said offence, and the said appellant and the public have always been accustomed to was adjudged for his said offence to forfeit and ride and walk or take carts across the green where pay the sum of twenty shillings, to be paid and sufficiently level, without interruption, but they applied according to law, and also to pay unto the have not exercised any greater or other right of said respondent the sum of four shillings and six- passage over the grass adjoining the metalled road pence for his costs in this behalf.

than they have over the rest of the said green, And whereas the appellant, being dissatisfiel which is about 5 or 6 acres in extent, and extends with this determination, upon the hearing of the in width from 80 or 100 yards on each side of the said information, as being erroneous in point of road. It was alleged by the respondents that if law, hath, pursuant to sect. 2 of the said statute two carts loaded with straw or hay met upon the (20 & 21 Vict. c. 43), duly applied to the justices in road, one or other would have to go on the grass, writing to state and sign a case setting forth the although there was no evidence that two loaded facts and grounds of such determination as afore- carts had ever been seen to meet. It was adsaid for the opinion of this court, and hath duly mitted that in such event one or other might have entered into a recognisance as required by the said to go on to the grass. statute in that behalf.

It was contended by the appellant that there

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