the county of Leicester, whose names are hereafter subscribed, in pursuance of a resolution passed at the vestry meeting, duly holden, the 17th of December 1852, for granting a rate of 44d. in the pound for and towards providing necessary additional burial ground for the said parish, and for and towards the draining of St. George's Chapel yard, and for and towards spouting St. George's Chapel, in the said parish, rate and tax all and every the inhabitants and parishioners and other ratepayers of the parish aforesaid hereunder mentioned to the said rate in the sums hereafter mentioned." Signed by the vicar, churchwarden, and overseers.

The rate was duly allowed, and was, during the month of February, demanded of the defendant William Stinson, and in consequence of his refusal, a summons was applied for and obtained, which came on for hearing before two Justices at Ashbyde-la-Zouch, on the 12th of March 1853. The defendant, with his attorney, attended. The magistrates decided against the defendant, and ordered him to pay the rate. They, however, declined to issue a distress warrant, and the above rule was, therefore, obtained in this court, when the Court ordered this case to be stated to try the validity of the rate.

The objections raised to the validity of the rate were-first, that there was no authority to levy a rate for providing additional burial ground; secondly, that the notice ought to have been published on two Sundays, and that publication on one Sunday only was not sufficient; thirdly, that the rate was bad on the face of it, as being a rate under a special act of parliament, and a rate for common-law purposes, for which different remedies and proceedings are provided; and that the two could not be mixed up together.

The two Church Building Acts, the 58 Geo. 3. c. 45. ss. 29, 60, and the 59 Geo. 3. c. 134. s. 24. were referred to.

The question for the opinion of the Court was, whether the rate was good as against the objections stated above. If the Court should be of opinion in the affirmative, then it was agreed that the rule should be made absolute, the rate paid, and all proceedings stayed. But if the Court should

be of opinion in the negative, then it was agreed that the rule should be discharged.

G. C. Merewether, in support of the rate. The first objection to this rate is, that a church rate cannot be made at all to enlarge a burial ground. Looking at the 58 Geo. 3. c. 45. and the 59 Geo. 3. c. 134, it is clear that power was meant to be given for this purpose. The second objection is, that notice of this rate should. have been given for two Sundays. This is a misconception derived from the 59 Geo. 3. c. 134. s. 35, which applies to rates made under different circumstances and with different objects from the present rate. The third objection is, that rates under the Church Building Acts differ in their application from ordinary church rates, and that this particular rate has been misapplied. There is nothing in this objection, and the present rate resembles every other church rate.

Bovill, contrà.-The first point is, that a church rate cannot be made for the purpose either of buying or of enlarging a burial ground. The 58 Geo. 3. c. 45. has been relied on, but the general scheme of that statute shews that it was intended to apply to edifices only, not to burial grounds. Thus the 59th section applies to the enlargement of churches and chapels, and provides that free seats shall be set aside in them in consideration of the expenditure authorized. Again, section 61. applies to the building of churches and chapels. Then as to the 59 Geo. 3. c. 134. The 24th section cannot be relied on in support of this rate: for that section modifies the section of the former act (58 Geo. 3. c. 45), which had reference not to the making of a rate, but to the application of it when made, and the 24th section itself, in like manner, regulates only the application of rates. The 25th section does give the power of making a rate, but only for churches and chapels, and burial grounds are not mentioned as in section 24, where the application of ordinary church rates to burial grounds is authorized under certain formalities and precautions. These are the only sections applicable to the subject.

[ERLE, J.-These statutes make frequent reference to burials. Is not the burial

ground included under the word "church," as used in them?]

The language of the sections referred to is against making a rate to enlarge a burial ground; the utmost effect of the 24th section is to authorize the application of a fund in hand to that purpose. The second objection is based on the 59 Geo. 3. c. 134. s. 25, which is the very section giving the power of making a rate. The third objection is supported by The Queen v. Byrom (1).

Merewether, in reply.-The case of The Queen v. Byrom is not in point, for the rate there was bad on the face of it. The only case at all in point is Blunt v. Harwood (2).

[LORD CAMPBELL, C.J.-Would not a rate for enlarging the churchyard and one for spouting the St. George's Chapel be differently accounted for, and belong to different funds?]

[CROMPTON, J.-The forms of assent would differ for rates for the two purposes, which have been here combined in this single rate.]

There is no reason why the common-law rate and the statutory rate should not be combined. The churchwarden takes the

rate at his peril, and is unable to tell exactly, before the expenditure is made, how much may be wanted.

LORD CAMPBELL, C.J.-I abstain from giving any opinion on the first objection. A notion has certainly prevailed, that a power did exist of making a rate for enlarging churchyards; but on that I give no opinion. The last objection is fatal to this rate. The rate for spouting the chapel is a rate at common law. The rate for enlarging the burial ground is (at all events) justifiable only under the statutes referred to. The statutes prescribe a mode of laying and making rates under their provisions, which is different from the mode proper in a common-law rate. To lay a rate for both purposes in one and the same mode, is an erroneous proceeding; and this rate is consequently bad.

ERLE, J.-This rate must be assumed

(1) 12 Q.B. Rep. 321; s. c. 17 Law J. Rep. (N.S.) M.C. 134.

(2) 8 Ad. & E. 610; s. c. 7 Law J. Rep. (N.s.) M.C. 107.

to have been made under the statutory powers and with the statutory incidents which are applicable only to part of it; and consequently it is bad. I give no opinion on the first point. I will only observe that the 35 Edw. 1. c. 2. speaks of a churchyard as the "soil of a church," Therefore, where the statutes referred to in this argument speak of "existing churches," those words may include churchyards as well as the building itself.

CROMPTON, J. concurred.

1854.

Rule discharged, without costs.

June 3, 7.J

REED, appellant, INGHAM, respondent.

Watermen's Act, 7 & 8 Geo. 4. c. lxxv. -Steam-tug-Penalty for navigating.

The 37th section of the Watermen's Act (7 & 8 Geo. 4. c. lxxv.) imposes a penalty on any person (other than a freeman of the Watermen's Company or an apprentice to a freeman or widow of a freeman) who shall work or navigate "any wherry, lighter, or other craft" from or to any place or places or ship or vessel within the limits of the act :-Held, that this does not extend to a person who works a steam-tug for the purpose of towing vessels on the river.

This was an appeal against the following conviction made by the respondent, one of the Magistrates of the Thames Police Court, under the Watermen's Act, 7 & 8 Geo. 4. c. lxxv. s. 37.

"Be it remembered that on, &c., J. J. Reed, of, &c. mariner, is convicted before me, the undersigned, &c. for that heretofore, and after the making and passing of 7 & 8 Geo. 4. c. lxxv., and at the time of the commission of the offence hereinafter mentioned, the said J. J. Reed had the working and management of a certain craft, to wit, a tug-boat, called the Newcastle, the same craft not then being a western barge within the true intent and meaning of the said act of parliament, or any boat, barge, lighter, craft or vessel excepted from the operation of the said act; and that the said J. J. Reed, not being

a freeman of the Company of Watermen and Lightermen of the River Thames, or an apprentice to a freeman or to the widow of a freeman of the said company, or in any manner lawfully authorized to act as a waterman or lighterman, or to work or navigate the said craft called the Newcastle, upon the said river within the limits of the said act, for hire and gain in manner hereinafter mentioned, on &c., unlawfully and contrary to and in violation of the said act of parliament, for hire and gain, did, on the said river Thames, at the parish of All Saints, Poplar, in the county of Middlesex, within the said Metropolitan Police District, and within the limits of the said act, to wit, between Yantlett Creek, in the county of Kent, and New Windsor, in the county of Berks, in the said act mentioned, work and navigate the said craft, to wit, in moving and towing, and in aiding and assisting in moving and towing a certain large vessel from a certain place in the said river there to and into the mouth of a certain dock out of the said river there called Green's Dock, within the limits and jurisdiction aforesaid, and then and there on the said river Thames, at the parish aforesaid, in the county aforesaid, within the limits and district aforesaid, unlawfully and contrary to and in violation of the said act of parliament, did act as a waterman and lighterman for hire and gain, to wit, in so moving and towing, and aiding and assisting in the moving and towing, of the said. large vessel as aforesaid, and in proceeding thereto and returning therefrom on the said River Thames within the limits aforesaid in the said craft called the Newcastle; information and complaint of which said. offence was made to me, the undersigned, by William Gillett, within thirty days after the committing thereof, (that is to say) on the 10th of November in the year aforesaid; and I do adjudge the said James Joseph Reed for his said offence to forfeit and pay the sum of 1s. to be paid and applied according to law, and also to pay to the said William Gillett the sum of 2s. for his costs in this behalf; and if the said several sums be not forthwith paid, I order that the same be levied by distress and sale of the goods and chattels of the said J. J. Reed, and in default of sufficient distress, I adjudge the said J. J. Reed to

be imprisoned in the House of Correction of the said county of Middlesex, in which said county the said J. J. Reed now is and appears before me, (that is to say) the House of Correction, Cold Bath Fields, within the said Metropolitan Police District, for the space of one hour unless the said several sums of 1s. and 2s., and all costs and charges of the said distress shall be sooner paid. Given under my hand and seal the day and year first above written, at the police court aforesaid.

J. T. Ingham. (L.S.)"

Notice of appeal against the said conviction was duly given, and by consent of the parties, and under an order of Lord Campbell, C.J., the facts were stated for the opinion of this Court, under the provisions of the 12 & 13 Vict. c. 45. s. 11, in the following

CASE.

The Company of Watermen and Lightermen of the River Thames are incorporated under the said first-mentioned act of parliament (7 & 8 Geo. 4. c. lxxv., local and personal, a copy whereof accompanies this case), and they are now governed by the provisions of that act, and by certain bylaws made in pursuance thereof. (Such bylaws are to accompany this case, and may be referred to by the Court or either party, or part thereof, if the Court should think fit). The 37th section of the act enacts, "That if any person, not being a freeman of the said company, or an apprentice to a freeman or to the widow of a freeman of the said company (except as hereinafter is mentioned), shall at any time act as a waterman or lighterman, or ply or work, or navigate, or caused to be worked or navigated, any wherry, lighter, or other craft upon the said river from or to any place or places or ship or vessel within the limits of this act, for hire or gain (except as hereinafter is mentioned), every such person shall forfeit and pay for every such offence any sum not exceeding 10l."

The conviction appealed against was made in respect of an alleged infraction by the appellant of the provisions of this section.

At the time of the commission of the said offence the appellant was master of the steam tug-boat called the Newcastle, and not a freeman of the Company of Water

men and Lightermen of the River Thames, or apprentice to a freeman or to the widow of a freeman, or in any way authorized to act as a waterman or lighterman, or to ply, work or navigate any wherry, lighter or other craft within the meaning of the said act within the limits mentioned in the said conviction for hire or gain. The said steam tug-boat was a vessel of the tonnage of 45 tons, exclusive of engineroom and space for the boilers and for storing coals; the entire burthen ortonnage of the said steam tug was 873 tons as per register; she was propelled by a steamengine of fifty-horse power, and had been employed in towing all classes of sailing and other vessels, many of them of large burthen. She was registered at the Customhouse under the provisions of the Register Act for Shipping, 8 & 9 Vict. c. 89. She was also licensed so long as such licence was required as a seagoing steamer to go coastwise and to foreign ports, within the meaning of the 9 & 10 Vict. c. 100, and was subject to the provisions of that act. -The said steam tug-boat had been employed in her ordinary business as well without and beyond as within the limits defined by the said Watermen's Act, that is to say, between Windsor and Yantlett Creek below Gravesend, in towing vessels to and from London, from and to Dover, and all intermediate ports and places. She had also been frequently engaged to take vessels up and down the English Channel and German Ocean, and to assist vessels in the Channel, and to tow and accompany vessels to and from London and ports on the south and east coasts of England, and ports of the Continent of Europe, and had, in fact, been employed as much outside as within the limits mentioned in the conviction. The steam tug carries a small boat. On the occasion referred to in the said conviction the said steam tug was employed at Blackwall, within the said limits, in towing and assisting a new steam vessel or yacht belonging to the Pacha of Egypt into a dry dock, and the appellant was then master of the said steam tug-boat. There were not any goods or passengers on board either the said steam tug or the said yacht at the time referred to in the said conviction, and the steam tug was employed solely in towing and assisting

The

the said yacht. The steam tug did not carry goods or passengers. The said steam tug belongs to a company called "The Shipowners Towing Company," who are proprietors of several vessels of the same class. The company has an office in London, at which orders are received for the tugs, and communicated thence to the masters of the vessels. Certain charges, according to scales for the tonnage of the vessels towed, and the dis tances for which they are towed, are made by the company, and without reference to the place at which the tug may happen to be at the time the order is received or to which she may have to proceed after the job is completed being contiguous or otherwise to the place where the ship to be towed may be at the commencement or termination of the job. masters of the tugs also seek for jobs when at sea and in the river, and when engaged alongside would make the same charge as if they had proceeded from a distance to fulfil orders previously received; the pay in all cases, and in the particular instance referred to in the conviction, being calculated according to the work performed when attached to the vessel towed, and not on any other consideration. The appellant was paid a salary by the owners of the said steam tug, and was their servant. Steam vessels have been employed on the river Thames for the last thirty years and upwards, but were not used for the purposes of towing until twenty years ago, and a considerable time after the passing of the said Watermen's Act. At the time of the passing of the Watermen's Act and previously thereto watermen were employed (weather permitting) by the owners and masters of vessels to assist such vessels into dock, and such was an ordinary employment of watermen, and they are constantly so employed up to the present time, though not to the same extent, in wherries and small boats, as before the introduction of steam tugs. The said steam tug is within the provisions of the 59th section of the Pilot Act, 6 Geo. 4. c. 125. The master of the steam tug-boat being within a convenient distance of the yacht, a communication was made between the two vessels by means of a rope; and such communication having been made, the

appellant on the river Thames, within the limits aforesaid, for hire and gain towed the said yacht in the manner mentioned in the conviction, but under such direction as is hereinafter mentioned. During such time one Joseph John Waterson, a freeman of the Company of Watermen and Lightermen, and excepted from the operation of the 37th section of the before-recited act, was on board of and in command of the said yacht for the purpose of superintending and directing the towing thereof into the said dock; for this service he was remunerated by the persons interested in the said yacht, and he was not responsible to or paid by the owners of the said steam tug-boat, or by the appellant. Whilst attached to the yacht the appellant obeyed the instructions given by the said Joseph John Waterson for the safe and proper towing of the said yacht, and this is the usual course in such case. The crew of the said steam tug-boat and the persons putting the machinery thereof in motion received their orders from the appellant, and were subject to his directions concerning the same, and not to the said Joseph John Waterson. The amount paid to the said Steam Towing Company for so towing the said yacht was the sum of 21., and nothing was paid to or claimed by them for or in respect of the said tug-boat's voyage, to or from the said yacht. The appellant received no part of the amount paid in respect of the services rendered to the said yacht; his remuneration for so doing was included in his salary. The use of a steam tug-boat in the way and for the purposes before mentioned required skill and knowledge of the tides. and eddies, shoals and landmarks of the said river, and the master must also be competent at sea. There are lighters and barges upon the river Thames and navigating the same of as great a burthen as 80 or 90 tons, and steam-boats for carrying passengers, whose journies commence and terminate within the limits of the act, of as great a burthen as 150 or 200 tons.

The question for the opinion of the Court was, whether the said conviction of the said James Joseph Reed, under the circumstances aforesaid, was authorized by the before-recited act. If the Court should be of opinion that it was so authorized,

then it was agreed that such conviction shall be confirmed; if the Court should be of the contrary opinion, then such conviction was to be quashed. And it was agreed between the said appellant and the said respondent that a judgment in conformity with the decision of this Court, and for such costs, if any, as this Court should adjudge, might be entered by either party at the Court of the General Quarter Sessions of the Peace for the county of Middlesex next or next but one after such decision should have been given. And it was agreed that the said Court of Queen's Bench should be at liberty to remit this special case to such person or persons as the said Court should think fit, for amendment or alteration in any particular, and with such powers as to such Court should seem meet.

Montagu Chambers (Ballantine was with him), in support of the conviction.-The question is, whether the steam tug mentioned in this case was "a craft" within the 7 & 8 Geo. 4. c. lxxv. s. 37. The word "craft" may include large vessels such as this tug-Webster's Dictionary; although in Johnson's Dictionary the word seems restricted to small vessels.

In the 37th section above referred to, the enumeration of vessels is by way of ascending denomination, from "wherry to "lighter;" consequently, the last word 'craft," according to the usual rule of construction, must include larger vessels still. That it may include a steam vessel is shewn by the 57th section, where the word occurs, and has been so interpretedTisdell v. Combe (1). It probably was meant to extend to vessels of any size, the principal object of the act being to provide that vessels of any size should be plied or worked for hire only by competent persons duly qualified by apprenticeship. This restriction was not introduced merely to secure the safety of passengers, therefore it is no answer to this conviction that the tug in this case carried no passengers. The case finds that the work which the tug was

(1) 7 Ad. & E. 788; s. c. 7 Law J. Rep. (N.s.) M.C. 48.