The Abbey Tavern had been licensed for some years under 9 Geo. 4. c. 61, and in July, 1870, the tenant transferred his license to one Landen. It appeared that during Landen's occupation he was guilty of misconduct, and he gave up possession of the premises to the appellant on Febru ary the 6th, 1871. In the same month of February, Landen applied to justices to transfer the license to the appellant, who had purchased the house and good will, but the application was refused. At the adjourned General Annual Licensing Meeting in March, 1871, Landen, who had given up possession to the appellant, who was then in occupation, applied for a license, and although no notice had been given by the appellant of his intention to make the application, it was in fact made on his behalf and with his assent. The application was refused, and no appeal was made to the General Sessions under section 27.

The license having expired in April, 1871, the house was shut up. At the next Special Licensing Sessions after that day, 4th of May, 1871, the appellant, who was then in occupation, applied to the justices to grant him a license under section 14. The justices refused to grant the license upon the ground that the renewal of the license had been refused at the previous adjourned General Annual Licensing Sessions, and that there had been no appeal from this decision.

A fresh application under the same sec

remove from or yield up the possession of the house specified in such license; or if the occupier of any such house being about to quit the same shall have wilfully omitted, or shall have neglected to apply at the general annual licensing meeting, or at any adjournment thereof, for a license to continue to sell exciseable liquors by retail to be drunk or consumed in such house, it shall be lawful for the justices assembled . . . at a special session, holden under the authority of this Act, for the division or place in which the house so kept or having been kept shall be situate, in any of the above-mentioned cases, and in such cases only, to grant to the heirs, executors or administrators of the person so dying. . . or to any new tenant or occupier of any house having so become unoccupied a license. Provided always that every such license shall continue in force only from the day on which it shall be granted until the 5th of April or the 10th of October then next ensuing, as the case may be.

tion was made by the appellant, after giving the required notices, at the next following Special Licensing Sessions, on the 4th of July. The justices, after hearing the case, refused to grant a license, on the ground that the case did not come within section 14.

On appeal, the General Sessions, after hearing the facts, refused, on the same ground, to grant a license, and dismissed the appeal.

The house had been properly conducted, except while Landen occupied it, and the appellant is a proper person to be entrusted with a license; and it is admitted that he is entitled to a license if the justices had power to grant it under section 14. The house is a suitable house, and if licensed, would be convenient to the neighbourhood.

The question for the Court was, whether the Special or General Sessions had power to grant a license to the appellant under section 14.

Bosanquet (on May 1), for the respondents, contended that the case was not one in which a license could be granted under 9 Geo. 4. c. 61. s. 14, as the circumstances were not similar to those enumerated in that section. Secondly, that assuming that the Special Sessions had jurisdiction to entertain the application, the refusal to grant the license at the Licensing Sessions was a decision upon the very point in dispute, which could only be questioned by appeal to the General Sessions, and not by a separate application to the Special Sessions.

McMahon, for the appellant, contended, first, that the matter was not res judicata, as the Licensing Sessions had given no decision on the merits; secondly, that the case was one in which the outgoing tenant had failed to procure a renewal of the license within the meaning of section 14.

[An adjournment was then granted to allow evidence to be produced that the decision was not upon the merits, but no such evidence could be given.]

BLACKBURN, J. (on May 7), delivered the judgment of the Court (2).-[The (2) Blackburn, J.; Mellor, J.; and Lush, J.

us,

learned Judge stated the material facts and proceeded].-It appeared that Landen, the former tenant of the premises, having given up possession of them, the new tenant applied to the General Licensing Sessions held in March, when for some reason which is not given the justices refused the license. He did not appeal to the General Sessions, but afterwards went to the Special Sessions in the same year and asked for a license. It was objected, and the objection has been renewed before that having made an unsuccessful application at the General Licensing Sessions, he could not afterwards go to the Special Sessions. We are of opinion that the objection is well grounded, and that as there was no appeal from the decision of the licensing meeting the case must be looked at as if the decision had been affirmed on appeal, and the appellant had afterwards gone to the Special Sessions. It was suggested, however, that the decision had not been on the merits, but this is not disclosed by the case. We think that the appellant may apply for a license at any future general annual meeting but that he cannot make the application at the Special Sessions.

mother die after making her application for a summons, and before the hearing of the summons at petty sessions, the justices have no jurisdiction to make an order thereon.

Semble, it may be otherwise on the hearing of an appeal against an affiliation order under 8 Vict. c. 10. s. 6, if the mother die after the hearing of a summons at petty sessions, and if she has been examined in the presence of the defendant and might have been cross-examined by him at the Petty Sessions.

RULE to shew cause why a certiorari should not issue to remove an order of justices, dated the 12th of March, 1872, whereby Wright Brierly was adjudged to be the putative father of the bastard child of Jane Jessop, on the ground that the justices had no jurisdiction to hear the matter after the death of Jane Jessop.

The material facts were that the bastard child was born on the 23rd of January, 1872. The mother applied for and obtained a summons from Armitage (a justice) on the 17th of February. The summons was served on the putative father. On the 20th of February the mother died. On the 27th of February the summons was heard, and the hearing adjourned till the 12th of March, and further adjourned till

the 19th.

At the hearing on the 27th of February, the attorney for the putative father. objected the want of jurisdiction of the justices to make the order on the ground of the death of the mother, and the con. sequent absence of her testimony. An attorney appeared on behalf of the mother of the deceased woman in support of the application, and applied for the appointment of guardian for the child. Subject to the protest of the attorney for the putative father a female witness was examined, and deposed to acts of familiarity between the deceased and Brierly.

At the final hearing on the 19th of March, another witness was examined, and the evidence left no doubt on the minds of the justices as to the paternity of the child.

Sir J. Karslake (A. L. Smith with him), appeared on behalf of the justices.

Waddy shewed cause.-The question is whether an affiliation order can be made without hearing the evidence of the mother. By the 3rd section of 7 & 8 Vict. c. 101. the justices "shall hear the evidence of such woman, and such other evidence as she may produce, and shall also hear any evidence tendered by or on behalf of the person alleged to be the father; and if the evidence of the mother be corroborated in some material particular by other testimony to the satisfaction of the said justices, they may adjudge the man to be the putative father of such bastard child." Prior to this statute the mother, being a party to the proceeding, could not have been heard, and the effect of this enactment is merely to enable the justices at petty sessions to hear the evidence of the mother, and requires them in such case not to be content with such evidence, but to take corroborative testimony. Section 2 of the same Act points out a distinction between the evidence required on an application made before the birth of the child, and one made more than twelve months afterwards. In the latter case there must be "proof that the man alleged to be the father has, within twelve months next after the birth, paid money for its maintenance." In the former case the woman must "make a deposition upon oath stating who is the father of such child." As the 3rd section only applied to petty sessions, the woman could not have been examined on the hearing of an appeal, and it was enacted by the 8 Vict. c. 10. s. 6, that on an appeal to Quarter Sessions, the justices "shall hear the evidence of the said mother, and such other evidence as she may produce, &c., but shall not confirm the order so appealed against, unless the evidence of the said mother shall have been corroborated in some material particular by other testimony to the satisfaction of the said jus

tices.'

[HANNEN, J.-Yet on an appeal, in case of the death of the woman after the order made, the justices might have had the advantage of her evidence with the crossexamination upon it.]

The Queen v. The Justices of Buckinghamshire (2) merely decides that the (2) 14 Law J. Rep. (N.s.) M.C. 45.

corroborative evidence must appear on the face of the order to have been taken on oath. The Queen v. The Justices of Middlesex (3) merely decides that the mother is made by the statute 8 & 9 Vict. c. 10. s. 6 a competent witness to prove the receiving of notice of appeal, as such proof was part of the trial by the appeal within that section. The Queen v. The Justices of Buckinghamshire (4) shews that on an appeal under these Acts, the corroborative evidence in support of the woman's evidence may be dispensed with. Then if that be the case, why should not the mother's if it be not required?

[HANNEN, J.-Erle, J., there says, that when judgment had been given on the point of jurisdiction, the appellant said there was no further objection, and the order was of course confirmed.]

It is no objection that the putative father is deprived of his appeal, by reason of not having the mother to send notice to of his having entered into the necessary recognizance and of appeal, because it was decided in The Queen v. The Justices of Leicestershire (5) that the sessions could not refuse to hear the appeal on that ground, as the appellant was excused from giving such notices by the act of God. The mother might be an idiot or become lunatic immediately consequent upon the birth, and in such case the statute can never have intended so unreasonable a thing as to have deprived the child of its support by the father.

Besley, in support of the rule.-The evidence of the mother is imperatively required to enable the justices in petty sessions to make an affiliation order. The history of this enactment is dated from the 4 & 5 Will. 4. c. 76. By section 69 of that Act, all prior Acts enabling the mother of any bastard child to affiliate the same on the reputed father are repealed, and by section 72 it is enacted in cases of bastardy and the inability of the mother to maintain the child and its chargeability, the guardians of the parish or union may apply to the quarter sessions for an order on the putative father,

(3) 17 Law J. Rep. (N.s.) M.C. 111.
(4) 18 Law J. Rep. (N.s.) M.C. 113.

(5) 15 Q.B. Rep. 88; s. c. 19 Law J. Rep. (N.s.)

M.C. 209.

and the Court is to hear both parties; but it is provided that no order on the putative father shall be made "unless the evidence of the mother of such bastard child shall be corroborated in some material particular by other testimony to the satisfaction of the Court." In The King v. Ravenstone (6), before that statute, it was held that the sessions could make an order of affiliation after the death of the woman who in that case died in childbirth, but that was on the ground that the justices had before them her evidence, taken before a justice, according to the 6 Geo. 2, c. 31, then in force, and that such evidence was admissible; but in the present case there was no evidence of the mother before the justices. The King v. Clayton (7) amounts to the same thing. The 2 & 3 Vict. c. 85, first enabled justices in petty sessions to make orders in bastardy cases. In The Queen v. Read (8) it was held that the order is bad, if it do not shew on its face that the mother's evidence was corroborated in some material particular which could not be if there were no evidence of the mother-The Queen v. Maude (9), and 8 & 9 Vict. c. 10. s. 4..

Waddy referred to The King v. Eve (10).
Cur. adv. vult.

Judgment was (on July 6) delivered by

HANNEN, J.-This was a rule for a certiorari to bring up a bastardy order of justices for the purpose of its being quashed. The material facts are these: A bastard child was born on the 23rd of January, 1872. On the 17th of February the mother made application to a justice for a summons against the alleged father under the 7 & 8 Vict. c. 101. s. 2. On the 20th of February and before the hearing of the summons the mother died. On the 27th the summons was heard, and an order made against the alleged father. The question we have to determine is, whether the order was properly made without the evidence of

(6) 5 Term Rep. 373.

(7) 3 East 58.

the woman herself. This depends upon the construction to be put on the 3rd section of the above cited Act. By that section it is enacted, that after the birth of such bastard child, on the appearance of the person so summoned, the justices in petty sessions shall hear the evidence of such woman, and such other evidence as she may produce, and if the evidence of the mother be corroborated in some material particular by other testimony to the satisfaction of the justices, they may adjudge the man to be the putative father of such bastard child. It was contended in opposition to the rule that the object of this section was merely to clear up doubts as to the admissibility of the evidence of the mother, and that it did not render it obligatory that such evidence should be given if other sufficient proof could be afforded; and it was argued that this construction was to be adopted rather than one which would render proceed ings in bastardy impossible, not only in case of the death of the mother, but also in case of her being of unsound mind, or otherwise incapable of being a witness. We, however, are of opinion that the statute makes it necessary that the mother shall be called as a witness. remedy provided is given to the mother only. In the event of her death without having made an application, it is clear that no one else can take proceedings against the supposed father. It was to be expected, therefore, that in the event of the death of the mother before the hearing of the summons, proceedings which could not in that state of circumstances have been instituted, should not further be prosecuted. But we are further of opinion that it was the intention of the Legislature, having regard to the peculiar nature of such enquiries, that the mother should support her accusation by her oath, and submit herself to crossexamination. The paternity of the child is a fact to which no evidence can be satisfactory without the statement of the mother, and the peculiar language of the statute, requiring that the evidence of the mother shall be corroborated by other

The

M.C. 19.

(9) 11 Law J. Rep. (N.s.) M.C. 120.

(10) 2 Shower 256.

NEW SERIES, 42.-MAG. CAS,

given reasonable effect to without holding that the mother herself must be a witness D

on her own behalf. With regard to the instances of alleged hardship in which the production of evidence of the mother may be impracticable, it is sufficient to say that these, if within the contemplation of the Legislature, were probably deemed to be of such rare occurrence as not to make it expedient to make an exception in their favour from the general law applicable to this peculiar class of cases. We do not pronounce any opinion upon the effect of the death of the mother after the hearing and before the appeal. That would undoubtedly be subject to considerations which it is not necessary to entertain in this case. For these reasons we think that the rule should be made absolute.

Poor Rate-Parochial Rate Lands taken under Act of Parliament-Liability to make good Deficiency in Rates.

The defendants were authorised by their Special Act to take lands in several parishes, and to construct thereon seven railways, which, when completed, were to be called the East London Railway. Section 128 enacted that if and while the defendants were possessed under this Act "of any lands assessed or liable to be assessed to any sewers rate, consolidated rate, poor-rate, police-rate, main drainage rate, churchrate, or other parochial or ward rate, they shall from time to time, until the railway or the works thereof are completed and assessed or liable to be assessed, be liable to make good the deficiency in the assessment

for such rates by reason of those lands being taken or used for the purposes of the railway or works.' The defendants took for the purposes of the Act lands in R. parish assessed to parochial rates, and completed thereon all that portion of railway No. 1 which lay within R. parish, and also the stations thereof. They were constructing, but had not completed, the rest of railway No. 1. The completed portion they had let to the B. Company, who had opened it for traffic, and now occupied and worked it as a railway. The defendants had also taken lands in other parishes, whereon they had completed railway No. 4, and were constructing, but had not completed, the remaining five railways:-Held, by WILLES, J., KEATING, J., LUSH, J., and BRETT, J., reversing the judgment of the Court of Exchequer, that the liability to make good the deficiency did not cease until the whole of the railway authorised by the Special Act was completed.

Contra, by BLACKBURN, J., and MELLOR, J., that as soon as any portion of the railway was completed and beneficially occupied, it became "liable to be assessed," and the defendants ceased as to that portion to be liable to make good the deficiency in the rates under section 128.

The Queen v. The Metropolitan District Railway Company affirmed.

Error brought by the plaintiff on a Special Case on which the Court of Exchequer gave judgment for the defendants. The material parts of the case are set out in the report below (1). It need only be added that for the use of this Court a new plan had been prepared, shewing that the scheme was designed to connect the Great Eastern Railway north of the Thames with the London, Brighton and South Coast Railway south of the Thames; that railway No. 1 was by far the largest portion of the scheme; and that the remaining six railways were short junctions between railway No. 1 and the lines of other railways.

Prentice (Morgan Howard with him), for the plaintiffs, contended that the judg ment below was wrong.

Sir J. Karslake (Poland with him), for

(1) 41 Law J. Rep. (x.s.) M.C. 123.