REGINA v. SENIOR, C.C.R.

of this description of drug-can it be said. that cases of this kind are to be covered by the argument addressed to us on behalf of the prisoner, that he was a man otherwise kind to his child? In my judgment it cannot. There is no doubt that had the charge been laid under the provisions of section 37 of the Act of 1868, there was here ample evidence to justify a conviction, and I think also that there was ample evidence for the jury of neglect under the Act of 1894. I am of opinion, further, that the summing-up of my learned brother, and the manner in which he dealt with the Act of 1894, were perfectly right in law. The conviction will therefore be affirmed. I desire to add that I dissent from the view attributed to Mr. Baron Pigott in Reg. v. Hines, and am by no means sure that the facts here were not sufficient to support a conviction at common law.

DAY, J.—I am entirely of the same opinion.

WILLS, J.-I agree, and am satisfied that the opinion I formed at the trial was right.

GRANTHAM, J.-I agree entirely. A simple way to meet the question is to break up the section, and ask for an answer to the first part. Here something has been left undone, the effect of which is to cause injury to health. Was that an action of will on the part of the father of the child, and can it be brought to bear in his conduct towards the child? The answer is that he was one of the sect of Peculiar People, and that, acting under the influence of views adopted by the sect, he intentionally left the child without medical aid. Therefore he acted wilfully. Can it be said that that is not neglect, and wilful neglect? I am of opinion that the summing-up was quite right.

LAWRANCE, J., and WRIGHT, J., concurred. Conviction affirmed.

Solicitor-Solicitor to Treasury. [[Reported by G. Metcalfe, Esq., Barrister-at-Law.

Local Government-Public Improvements -Compulsory Powers-" Street works' Land not Actually Required for WorksSouth Shields Corporation Act, 1896 (59 & 60 Vict. c. l.), s. 41, sub-s. 1.

By a private Act of Parliament a corporation were authorised to make certain "street works" within the limits of lateral deviation shewn on their deposited plans; and to take "for the purpose of the street works the lands shewn on the deposited plans in connection therewith, and which they may require for the purposes thereof respectively"-Held, that the Act did not authorise the corporation to take land outside the limits of deviation shewn on the deposited plan, but not actually required for "street works," for the purpose of reselling the same at a profit.

Motion for an injunction to restrain the defendants, until judgment in the action. or further order, from entering upon, taking, or using, and from taking any proceedings under their notice to treat dated September 16, 1897, or their notice of appointment of an arbitrator dated September 8, 1898, or in any other manner, for the purpose of acquiring, without the consent of the plaintiff, any land of the plaintiff at Smithy Street, in the township of South Shields, situate to the westward of the line of limit of deviation shewn on the plan deposited by the defendants in connection with their street works for the widening of Fowler Street; or any land of the plaintiff, whether within or without the said line of limit of deviation, not required for the widening of Fowler Street on the west side thereof.

By the notice to treat the defendants said that they required to take, for the purposes of "Street work No. 15," the lands of which particulars were contained in the schedule thereto, and which said lands so required were delineated on the plan attached thereto, and thereon coloured red.

In the schedule the number on the deposited plan and book of reference was

WATSON, IN RE.

the time in communication with a Mr. Cranswick, who was acting as executor of the son's estate under the direction of the Court of South Africa, and who was Mr. Greenfield's client.

On August 2, 1895, an order in lunacy was made on the application of the nextof-kin, appointing Mrs. Bartlett, the defendant, who was a sister of the lunatic, receiver, and to exercise certain powers of a committee of the estate of the lunatic as therein directed.

On November 19, 1895, a letter was written by the plaintiff's solicitors to the lunacy authorities, saying that they understood that an order for the appointment of a receiver, whose name and address, however, they did not know, had been. made, but they were not aware that any provision was being made for past and future maintenance, and they had not been able to obtain any satisfaction in regard thereto from the solicitor, Mr. Greenfield, who acted for the next-of-kin, by whom the application for the receiver was made. The letter proceeded: "Our clients are naturally desirous that their claims should not be overlooked. Being merely creditors, we presume that our clients have no locus standi which would enable them to apply in the lunacy by summons, but we feel assured that if the facts are brought to your notice their just claims will not be ignored. Our clients

. rendered every assistance to the next-of-kin in formulating the latter's application on the express understanding that their claim for maintenance would be provided for; and, from the hesitation now shown in giving the reasonable particulars asked for, they are led to doubt whether effect will without your aid ever be given to such understanding."

An answer was received a few days later from the Master in Lunacy in very guarded terms, and merely saying that "the claim of the guardians will be borne in mind in dealing with the fund belonging to this patient," and that, "as a further order will be required to make the fund when lodged in Court available, some further delay is likely to take place."

On June 8, 1898, a four-day order was made in lunacy directing Mr. Greenfield to pay into Court the sum of 1,6517. 15s. 2d.,

being the balance of moneys admitted by him to have been received from Mr. Cranswick, the administrator of the estate of Joseph Thomas Watson, in respect of the lunatic's interest therein. The money was not paid in till June 29, 1898.

On June 9, 1898, a summons was taken out in lunacy by the plaintiffs, asking that a sum of 2431. 4s. might be paid to them out of the funds in Court for maintenance of the lunatic from December 25, 1887, to March 25, 1898, and that as from that latter date maintenance at the rate of 307. might be paid to them quarterly.

On June 11, 1898, the lunatic died. The defendant became her legal personal representative.

On July 4, 1898, this action was commenced by originating summons, asking for a declaration that the plaintiffs were entitled to the sums expended by them in respect of the maintenance of the pauper lunatic for the six years immediately preceding January 1, 1894, and in respect of her maintenance as from that day down to her death on June 11, 1898, and also to the sums expended by them in her funeral expenses.

The summons was adjourned into Court. Before it was heard an order in lunacy was made directing that 1,400. of the fund in Court should be paid over to the defendant as administratrix of the deceased lunatic, and the balance of the fund transferred to an account to the credit of the present action.

Sheldon, for the plaintiffs. Arrears are recoverable from a period commencing six years anterior to May 10, 1894, when a claim sufficient to stop the running of the Statute of Limitations was made. That was a claim against the only person who could be claimed against. At any rate, arrears are recoverable from six years prior to November 19, 1895, when the letter to the Master in Lunacy was written. Stedman v. Hart [1854] is an authority that the Statute of Limitations is not a bar to an equitable claim of this sort, where the Court has the fund in its possession. The Court has jurisdiction, according to that case, to give arrears from

(1) 23 L. J. Ch. 908; Kay, 607.

WATSON, IN RE.

an earlier date than six years before the commencement of this action, and will not say that in order to entitle the plaintiffs it was necessary for them to have brought an action and recovered judgment against the lunatic. The Court will take cognisance of what the lunacy authorities would have done if the matter had been formally brought before them.

[Newbiggin, In re; Eggleton v. Newbiggin [1887], and Winkle v. Bailey [1896] 3 were referred to.]

G. Henderson, for the defendant. [STIRLING, J.-What have you to say about Stedman v. Hart1?]

It is distinguishable from the present case. There an order had been made for taxation of costs, which was equivalent to a promise to pay. Newbiggin, In re,2 entirely covers the present case.

STIRLING, J.-The substantial question upon this summons is whether the plaintiffs are entitled to recover more than six years' arrears of maintenance of an intestate (who was a lunatic) from the date at which the summons was taken out. [His Lordship stated the facts to the effect set forth above, and proceeded] The first question is, Does this constitute a debt to the guardians, and, if so, is the legal personal representative entitled to set up the Statute of Limitations ? Both questions were considered by Lord Justice (then Mr. Justice) Chitty in Newbiggin, In re,2 and he came to the conclusion that a debt arose either by reason of a pre-existing common-law liability or by virtue of an obligation created by statute. Then as to the question whether the legal personal representative is entitled to set up the statute he says, "If this is a debt apart from the statute" (16 & 17 Vict. c. 97), "then it follows as a matter of course that the lunatic, appearing as he now does by his guardian ad litem, is entitled to set up the Statute of Limitations, and there is no pretence, as was partly suggested in argument, for saying that this Court is to administer the lunatic's estate in some such way as to pay all the debts without

(2) 56 L. J. Ch. 907; 36 Ch. D. 477.

(3) [1897] M.C. 124; 66 L. J. Ch. 181; [1897] 1 Ch. 123.

regard to the question of the Statute of Limitations. The lunatic is entitled now to defend himself in this proceeding as if it was an action brought against him." That applies to the present case. The defendant is not the lunatic, but is the legal personal representative of the lunatic. But it seems to me that, no less than the lunatic herself, her legal personal representative is entitled to set up the statute.

The only answer made to the statute is that certain applications were made in lunacy, and that if the lunacy authorities had had the fund to be distributed by them they would have done what is just, and given the applicants six years' arrears from, at any rate, November 19, 1895, when the letter was sent by the guardians to the Master in Lunacy. How that may be I do not know-how they would exercise their jurisdiction over the part of the estate which was in their custody. But that jurisdiction has ceased; the lunatic is dead, and, if that is not enough, the fund has been partly paid to the legal personal representative, and partly paid into Court to the credit of this action. I am bound to administer according to the law of which the Statute of Limitations forms a part.

But it is said that a case exists which warrants me in holding that arrears for a longer period can be given, and Stedman v. Hart is referred to. In that case an order in lunacy was made directing taxation of the costs, charges, and expenses incurred by solicitors employed in prosecuting a commission in lunacy, and subsequently as the solicitors of the committees. The commission had been issued in 1840, and the lunatic had been so found, and committees of his person and estate appointed, the following year. In 1842 taxation had been directed, but, by reason of the small amount of the lunatic's income, had been deferred, and did not actually take place until 1853, the lunatic having died in the meantime, in 1848. The solicitors having in 1853 filed their bill against the executors of the lunatic for payment of their taxed costs, the Vice-Chancellor held that these costs constituted a debt for necessaries supplied to the lunatic, and that the statute was out of the way, because it was a debt due