cation to make them enforce the rate, set up an objection upon which the rate might have been quashed. In the present case the decision goes to this, that there was no jurisdiction to make the rate. It is like Milward v. Caffin (6).

[Keane. This course was adopted in order to obtain the opinion of the Court.]

BLACKBURN, J.-It was quite right to resort to it, in order that the case might go to error, if necessary; but I merely wish to guard against being supposed to infringe upon the other decision.

The 257th section of the Merchant Shipping Act, 1854, makes it an offence to persuade or attempt to persuade a seaman to neglect to join his ship; and the 525th section, which limits the time for instituting proceedings, enacts, that no conviction for any offence shall be made under this act in any summary proceeding instituted in the United Kingdom, unless such proceeding is commenced within six months after the commission of the offence; or if both or either of the parties to such proceeding happen during such time to be out of the United Kingdom, unless the same is commenced within two months after they both first happen to arrive, or to be at one time within the same: Held, that if both parties, the seaman and the offender, remain in the United Kingdom, the proceeding against the offender must be commenced within six months after the commission of the offence; but that if one of them goes away within six months after the offence is committed, and afterwards returns, so that he and the other are in the United Kingdom

(6) 2 W. Black. 1330.

at one time, a further period of two months is allowed within which the proceedings may be commenced.

Held, also, that the offence may have been committed although there was an informality in the engagement entered into by the seaman.

CASE stated by Justices under 20 & 21 Vict. c. 43.

On the 19th of November an information, under the 257th section of the Merchant Shipping Act, 1854, against the appellant, a licensed shipping agent at Cardiff, for that he, on the 4th of April last, at Cardiff, did unlawfully attempt to persuade Israel Olsen (a seaman, lawfully engaged to serve on board a certain British ship called the England's Rose), to neglect to join his ship, contrary to the Merchant Shipping Act, 1854, section 257, was heard and determined by us, the undersigned, two of Her Majesty's Justices of the Peace for the borough of Cardiff; and we convicted the appellant and imposed the penalty of 10%

On the 4th of April last Israel Olsen, the respondent, signed an agreement at the office of a ship-broker, at Cardiff, to serve as a seaman on board the British ship England's Rose as a substitute for one of her crew who had deserted. Shortly afterwards, about five o'clock in the afternoon of the same day, Olsen was asked by the appellant to join a ship called the Etta. He refused, stating that he had shipped in the England's Rose. The appellant repeated his request, but without success, and Olsen sailed the next morning, but at what exact time the evidence does not shew. He returned to England at the end of October last, having been continually absent since he sailed from Cardiff on the 5th of April.

The information before us was laid on the 14th of November last.

At the hearing, the appellant's attorney took the preliminary objection that the information was not laid in due time, inasmuch as Olsen, one of the parties, was at the time of the commission of the offence and for some time after not out of the United Kingdom, and ought, therefore, to have commenced his proceedings within six months from the 4th of April.

By the 525th section of the Merchant Shipping Act, 1854, it is enacted that no conviction for any offence shall be made

under this act, in any summary proceeding instituted in the United Kingdom, unless such proceeding is commenced within six months after the commission of the offence, or if both or either of the parties to such proceeding happen during such time to be out of the United Kingdom, unless the same is commenced within two months after they both first happen to arrive, or to be, at one time, within the same.

Having heard the evidence, a copy of which is hereunto appended, we considered that as Olsen could not have stayed in this country to institute his proceedings without, in some way more or less disadvantageous to him, putting an end to his contract to serve in the England's Rose, and considering that, except for a very short time (probably not so much as twenty-four hours), he was actually out of the United Kingdom for the whole period of six months, the case might be held to be within the last half of the clause; and, consequently, that the information being laid within the allowed period of two months was in time."

It was also contended that Olsen was not a seaman lawfully engaged to serve on the England's Rose within the meaning of sections 243. and 257.

According to the fourth paragraph of the 150th section, the engagement of Olsen as a substitute ought, if practicable, to have been made before the superintendent of mercantile marine or his deputy; and that being impracticable, the agreement should have been read over and explained to him, and signed in the presence of an attesting witness.

It was shewn to our satisfaction that it was not practicable to engage the man before the regular official, and it also appeared that the agreement was signed in the presence of an attesting witness; but there was no evidence to shew that the agreement had been read and explained, both Olsen and the attesting witness forgetting whether that had been done or not.

We presumed that formality to have been observed, and held that the agreement was lawfully made.

The following evidence was taken:

Israel Olsen "I was engaged as a seaman in the England's Rose British ship. Articles are those produced. I signed on the 4th of April last. On the same day I saw the defendants [one Brunede was charged

with the respondent, but the case as against him was dismissed]. Austin said he wanted me to go on board a vessel called the Etta. I said I could not go because I was shipped in the England's Rose. Austin told me to take my clothes and go out to another vessel. Brunede was there. This conversation took place at five p.m. Brunede told me I had better take my clothes and go out to the roads. I said I had shipped in the England's Rose and had got an advancenote. It was after that they asked me to go on board the Etta. I went on board the England's Rose. My clothes went on board the Etta. My ship sailed the next day. We went to the Rio Grande, returning to England; we called at Dartmouth for orders and went to Antwerp, and returned to England a fortnight ago. I pulled the captain ashore at Dartmouth. We came to Dartmouth in October, at the end."

Cross-examined by Austin's attorney"It was between ten and eleven o'clock a.m. that I first saw Austin. I was with two Swedes. I saw them, Austin and Brunede, when they came out of the Windsor Hotel; it was not earlier than eleven a.m. The other two shipped in the Etta. We were all three asked if we wanted a ship. I said I was already shipped. The question was put to me in English and Swedish. Austin told me in English to ship in the Etta because she was a good ship. I shipped in the England's Rose at three o'clock."

Cross-examined by Brunede's attorney"I signed in some house near the cabstands. I'll swear I did not sign in the Cardiff Roads. I told Austin I wouldn't go such a long voyage as twelve months. The other two agreed to go too. The captain and owner of the vessel sent me here."

Re-examined" When I signed articles I got an advance-note. I first heard of the England's Rose at half-past twelve on the 4th. I saw Austin after I had signed those articles. I had a conversation about going on board the Etta after five o'clock with the captain of the Etta, Austin and Brunede."

Edward Erle "In April last I was clerk to Messrs. Rowland. The articles produced were signed at our office at the docks by this man Olsen. He was a substitute."

John Clarke-"I am an able seaman in the England's Rose. On Wednesday, the

4th of April last, I saw Olsen, Austin and Brunede. I heard the conversation between the captain of the Etta, Austin and Olsen. It was about a quarter to six in the evening. The captain of the Etta asked Olsen to go in his ship. Olsen said he had shipped in the England's Rose. Then Austin said, Never mind the England's Rose, you go in this ship, the captain of the Etta is a good man. Olsen said that he could not go; he had his advance-note."

Cross-examined-"I am sure Austin was there. Olsen could talk as I could understand him."

For the defence.

William Clode-"I remember the 4th of April. I know the captain of the Etta. I remember Olsen. I saw Austin and him together. Some men wanted Olsen to go off in a boat. I said to Austin, Why don't you make him go? Austin said, I can't; he has shipped in another vessel."

Waddy, for the appellant, argued in support of the two objections stated in the

case.

No counsel appeared for the respondent.

BLACKBURN, J.-I do not think that either of these objections can prevail. The offence which the appellant is charged with having committed is the attempting to persuade the respondent to neglect to join his ship. That is made an offence by the 257th section, and the question turns upon the construction to be put upon the 525th section, as to whether the proceeding could be commenced within two months after the respondent arrived at Cardiff, where the appellant was. The 525th section speaks of "both or either of the parties to such proceeding." Now, literally, the party in whose name the information is laid is a party, and it would seem that in respect of such an offence anybody might lay the information; but it would lead to gross absurdity if we were to put that construction upon the word "parties." I think it means the person committing the offence, and the person aggrieved, against whom the offence is committed. A great many offences of this kind are committed, and it may almost be said that the normal mode of committing such offences is the attempting to persuade seamen who are about to leave England to neglect to join the ships on board of which they are engaged to

serve; and I cannot think that the legislature intended to provide such a limitation as would make the offender non-punishable if the seaman did join his ship and did sail with her, and did not return to the United Kingdom for six months. If both the offender and the seaman remain here, the proceeding must be commenced within six months; but if one goes away, there is a further period of two months after he comes back, and both are in the United Kingdom at one time. As to the other point, there is really nothing in it. The respondent was engaged to serve in the ship, and the offence committed by the appellant is the attempting to persuade him to neglect to join.

MELLOR, J.-I am of the same opinion on both points. The second would lead to serious consequences if we were obliged so to construe the act. It would be a monstrous thing to say that the offender should escape because some particular formalities were not observed in the mode of engaging the seaman. Upon the other point, the language of the section is certainly open to some doubt; but we must endeavour to put a reasonable construction upon it: and I think that the construction adopted by my Brother Blackburn is the most reasonable one, because it seems to meet the case when both parties, the solicitor and the person solicited, are in this country for six months after the offence is committed, when the period of limitation is to be six months; but if one goes away within six months, then there is to be a further period of two months after he comes back, and both are in this country at the same time.

LUSH, J.-I am of the same opinion on both points. There are, no doubt, difficulties in the way of any construction of this enactment; but upon the whole I think that the most reasonable construction is that the section gives a period of six months if both the offender and the seaman remain in this country; but if that period is broken by either party going away, then there is a further period of two months after both are here together.

Conviction affirmed.

Attorneys-Thomas Henry Smith, agent for T. H. Ensor, Cardiff, for appellant.

Where an indictment for the non-repair of a highway has been preferred by order of Justices under 5 & 6 Will. 4. c. 50. s. 95, and has been removed by certiorari into this court at the instance of the defendants, the Judge who tries the indictment has no power, under that section, to direct that the costs of the prosecution shall be paid out of the rate. The costs in such a case are provided for by the 5 W. & M. c. 11.

The Queen v. Eardisland (1) dissented from.

This was an application for a rule calling upon the defendants to shew cause why an order should not be made by Mellor, J., directing that the costs of the prosecution should be paid out of the highway

rate.

Proceedings had been taken by the prosecutor under the General Highway Act; and an indictment had been preferred by the order of Justices against the parish for the non-repair of the highway.

The indictment was removed by certiorari, and was tried, before Mellor, J., at the last Summer Assizes for Stafford. The defendants pleaded, that the prosecutor was bound ratione tenure to repair the highway, and they obtained a verdict. The learned Judge refused to direct that the costs of the prosecution should be paid out of the rate; and, upon a subsequent application to him at chambers, he referred the matter to the Court.

Huddleston (J. O. Griffits with him) moved for the rule.-The learned Judge was bound to direct the costs to be paid out of the rate. The words in section 95. are imperative, "shall be directed." The question is decided by The Queen v. the Inhabitants of Yarkhill (2), The Queen v.

(1) 3 EL & B. 960; s. c. 23 Law J. Rep. (N.S.) M C. 145.

(2) 9 Car. & P. 218.

Boughton (3), The Queen v. Haslemere (4) and The Queen v. Eardisland (1). In the last case the indictment had been removed by certiorari into this court, and it was held that the Judge sitting at Nisi Prius had power to make the order. Unless, therefore, the Court is prepared to say that that decision is wrong, the prosecutor is entitled to the rule now asked for.

[COCKBURN, C.J.-The prosecutor in the present case has put the law in motion himself, endeavouring to relieve himself of the burden which it appears he ought to have borne. But still, if the statute is imperative, you are entitled to a rule.]

In The Queen v. the Justices of Surrey (5) the Sessions had refused to make the order, but this Court held that they were bound to do so.

The COURT granted a rule nisi.

A. S. Hill shewed cause in the first instance. The learned Judge was right in refusing to make the order, for the enactment in the 95th section as to costs does not apply to a case where the indictment has been removed by certiorari. Where that has been done, the Judge before whom it is tried sits as a Judge of this Court, and not as a Judge under a Commission of Oyer and Terminer. This is pointed out by Erle, J. in The Queen v. Eardisland (1). No case can be found where when the indictment has been removed by certiorari at the instance of the defendants, and a verdict obtained by them, the enactment has been held to be imperative, so that the prosecutor must have his costs paid out of the rate. In such a case the costs are provided for by sections 2. and 3. of 5 W. & M. c. 11, and the prosecutor will receive such costs as are reasonable. He also referred to The Queen v. Chedworth (6).

Huddleston was then heard, in support of the rule. He referred to The Queen v. Heanor (7) and to The Queen v. Preston (8).

(3) 2 Moo. & R. 444.

(4) 3 Best & S. 313; s. c. 32 Law J. Rep. (N.S.) M.C. 30.

(5) 21 Law J. Rep. (N.s.) M.C. 195. (6) 9 Car. & P. 285.

(7) 6 Q.B. Rep. 745; s. c. 14 Law J. Rep. (N.S.) M.C. 38.

(8) 7 Dowl. P.C. 593.

COCKBURN, C.J.-I am of opinion that this rule must be discharged, upon the ground that after an indictment for the nonrepair of a highway has been removed into this court by certiorari, the prosecutor is no longer within the 95th section so as to be entitled to have his costs paid out of the rates. When a highway is out of repair, the surveyor may be summoned before Justices under section 94; and then section 95. provides, that if the duty and liability to repair is denied by the surveyor, or by the party charged with such liability, the Justices may direct an indictment to be preferred, and the costs of such prosecution shall be directed by the Judge of Assize, or by the Justices at Quarter Sessions, &c. As far as my opinion goes, it is quite plain that the meaning of the legislature was, that when the complaint was duly made, and the Justices were satisfied that the road was out of repair, the party who did what he was ordered to do in preferring the indictment should be indemnified out of the rates, so important was it thought to be that the road should not remain out of repair. But it was not intended that there should be any interference with the right of the defendants, whether they were the inhabitants of the parish or persons who were liable ratione tenure, to remove the indictment by certiorari into this court. There is a proviso to that effect at the end of the 95th section. That was done in the present case, and therefore incidents at tached to this trial which do not attach when the indictment is tried in the ordinary course. The Judge tried the indictment as a Judge of this Court, and was no longer a "Judge of Assize,” as intended by section 95. The indictment is removed upon recognizance and finding securities to pay the costs. It may be that those who framed the provisions in section 95. did not foresee what the consequences would be, and I cannot think that it was intended that the costs of the prosecution should be directed to be paid out of the rates when the indictment was tried before the Judge of Assize, but not when it was tried before the Judge as representing this Court. Nevertheless, if the legislature failed to bear in mind the effect of the enactment and the proviso, and has omitted to give any power to the latter tribunal, it is not our duty to make

such a provision. In terms, the 95th section only applies to an indictment tried in the ordinary course at the Assizes, or by the Chairman at Quarter Sessions; the language does not fit or square with a trial at Nisi Prius, where the costs depend upon the rules of taxation and practice in this court. The only order that could be made under section 95. is that the costs should be paid out of the highway-rates; while in the case of the indictment being removed by cer tiorari, every inhabitant of the parish would be responsible for costs. I am quite aware that this decision will, to some extent, overrule The Queen v. Eardisland (1); but I observe that the point was raised there in a very cursory manner, and was summarily dismissed without any great amount of consideration.

BLACKBURN, J.-I am of the same opinion. The distinction between this and other cases is, that in this case the indietment was removed by certiorari, and was tried by my Brother Mellor as a Judge of this Court, and representing this Court. The statute in question is unaltered by the recent Highway Act, because that act has not been adopted in the district. The legislature thought it right to give the Justices the power to direct an indictment.-[His Lordship read the section.]-The costs of the prosecution are to be directed by the Judge of Assize, or by the Justices, and I think that words like these would probably not have been used if the legislature had thought of a case like the present. I do not wish to decide whether the Judge of Assize or the Justices have any discretion as to whether the costs shall be directed or not; but the section does not in any way state what is to be done as to the costs where the indictment is tried before a Judge at Nisi Prius representing this Court. Whether it is a casus omissus, or whether the legislature thought that the question was sufficiently determined by the statute of William and Mary, I do not know; but the 2nd section of that statute provides for the parties indicted finding sureties, and the 3rd section provides that if they be convicted, they shall pay reasonable costs to the prosecutor, &c. The legislature may have thought that where a case was of sufficient importance to make it worth while to remove the indictment by certiorari, the