pressed by the Vice-Chancellor, and dismissed the summons. I need not say that this Court has every disposition to give due weight to an opinion expressed by one of those very learned judges who preside in the Court of Chancery.

The case which has been referred to was a case certainly similar to the present. The order was obtained, and the bill was filed for the purpose of restraining them from proceeding. In that case they had proceeded against the builder and not against the owner, and the case came on for argument before Vice-Chancellor Malins, and the points raised seem to have been, first, that there was no limit imposed by the 107th section, because it did not apply to the case; and secondly, that the proceeding was wrong, because it was taken against the builder instead of against the owner; and it was further contended, that even if the section imposing the limit of time did apply, yet the limitation should run from the time when the knowledge of the offence came to the cognizance of the authorities and not from the time when the line of building was determined. On those three points the ViceChancellor expressed an opinion in favour of the plaintiff in the suit. But I find that although undoubtedly it was brought to the attention of the learned Vice-Chancellor, that he took no notice of the argument as to the want of limitation, but assumed that the section applied. But it is observable, that to a certain extent this opinion is extra-judicial, because, before the learned judge came to that part of his decision, he had in truth already decided the case, because he says, "First of all, therefore, I decide that the summons upon Mr. Rudkin the builder was a mere nullity going against the wrong man, because he was no longer the builder engaged in the erection of the building."

Therefore he decided that the foundation of the whole proceedings was an absolute nullity, and consequently there was an end to the plaintiffs' case on those proceedings. He then goes on, undoubtedly assuming as it were that the 107th section applies to the case, and goes on to decide, that the time ran from

the discovery of the building being out of the line. It is not, therefore, an expression of opinion by the learned Judge upon the point raised, but was assuming the case to be within the 107th section for the purpose of deciding the other point. In that way, in differing from the impression of the Vice-Chancellor, we do not mean to overrule a decision of that learned Judge. Had we deemed it to be a decision upon the point raised, we should have thought ourselves bound by that decision, as being the decision of a Court of what may be termed co-ordinate jurisdiction with ourselves; but as we think it was rather assumed argumentatively than decided, we do not feel so bound. I should not have been at all dissatisfied if I could have found words to bring this case within the 107th section, but I think I cannot, and the case must go back to be heard upon its merits.

It is not satisfactory to the Court to be placed in the position of having to decide the case on hearing only one side, but I believe Mr. Wills has brought before the Court, with his accustomed candour, all the authorities; and that if he had found anything militating against the argument he addressed to us, he would not have failed to bring that also before us.

HONYMAN, J.-I entirely agree with the conclusion at which my brother Keating has arrived, and also with him in the reluctance with which it has been come to: first of all, because it seems to me (not imputing anything at all to this vestry in particular), that the construction that we feel constrained to put on this Act may be the means of working some hardness and injustice on parties; and also I regret that Mr. Johnson, who obtained the decision of the magistrate in his favour, did not think it worth his while to instruct counsel to argue in support of that decision. The Metropolis Local Management Act, 1855, section 143, enabled the vestry to pull down mero motu any building erected contrary to the provisions of that statute. That proceeding cannot be said to be a penalty or forfeiture. Then section 233 of that Act, which imposed the limitation says "No person shall

faction of the said surveyor for the time being, the bridges, walls, screen walls, fences, sewers, drains and other works. connected with crossing the roads or footpaths, and if after notice thereof given to the company by or on behalf of the trustees, the company fail for three days. to begin such repairs, and proceed thereon with all reasonable expedition until the same shall be completed, the trustees may repair and make good the same, causing as little obstruction to the railway in the progress of such repairs as may be, and all the costs, charges and expenses incurred in that behalf by the trustees shall be paid on demand by the Company, or on failure of payment for twenty-one days after such demand the same may be recovered from the Company with full costs of suit, in any Court of competent jurisdiction."

The Turnpike Act, under which the trustees referred to in the said 97th section were constituted, has expired, but this fact was not proved before me on the hearing of the said complaint.

4. On the part of the appellants it was contended that the provisions of the Railways Clauses Consolidation Act, 1845, as regards the 65th section of that Act, are expressly varied by those of the London, Chatham and Dover Railway (Metropolitan Extensions) Act, 1860, and that the 65th section of the Railways Clauses Consolidation Act, 1845, is not incorporated with and does not form part of the London, Chatham and Dover Railway (Metropolitan Extensions) Act, 1860, and therefore does not apply.

5. On the part of the respondents it was contended that the provisions of the 97th section of the London, Chatham and Dover Railway (Metropolitan Extensions) Act, 1860, are cumulative only, and do not expressly vary the provisions of the Railway Clauses Consolidation Act, 1845, and therefore that the 65th section of the latter Act applies.

6. I being of opinion that the contention on the part of the respondents was correct, gave my determination against the appellants, and made the order before stated.

7. Upon the hearing on the said 23rd

day of February, 1872, of another and similar complaint, preferred by the respondents under the same statute, I made an order that the appellants should put into complete repair within the like period the bridge carrying the railway over the Wandsworth Road, and it was understood and agreed that this case should be taken to apply to my determination on both complaints.

8. The question of law upon which this case is stated for the opinion of the Court therefore is whether the provisions of the Railways Clauses Consolidation Act, 1845, are expressly varied by those. of the London, Chatham and Dover Railway (Metropolitan Extensions) Act, 1860, so as to render the 65th section of the Railways Clauses Consolidation Act, 1845, inapplicable.

W. G. Harrison, for the appellants.The question is, whether the general is expressly varied or excepted by the special Act as to this matter. Now, where the general Act is incorporated, it is with the limitation that it is not expressly varied or excepted by the special one,per Mellish, L.J., in The Attorney-General v. The Great Eastern Railway Company (1); and where the special one gives a complete rule on any subject, that subject is excepted from the general one,-per Lord Westbury in Ex parte The Vicar, &c., of St. Sepulchre's in re The Westminster Bridge Act (2). Here the general Act is expressly varied as to bridges by the provisions of the special Act, for it is quite inconsistent that a discretion as to the repairs should co-exist in the surveyors and justices who may form different opinions on the subject, and consequently the special Act is to prevail and the general one not apply.

Watkin Williams, for the respondents. -The provisions of the special Act are to protect particular persons, and are only in addition to and do not supersede the provisions of the general Act in favour of the public. The provisions of the two Acts no doubt are co-extensive but are not inconsistent, and those of the special Act

(1) 41 Law J. Rep. (N.s.) Chanc. 507. (2) 33 Law J. Rep. (N.s.) Chanc. 376.

were intended simply to add a new power and might consistently exist in the same statute as the provisions of the general Act. The result being that, under the general Act, the repairs must be complete, and by the special Act they must be satisfactory to the trustees who in certain events may step in and do them. Harrison, in reply.

Cur. adv. vult.

the company, they do not begin to repair the bridge and proceed thereon with all reasonable expedition to complete the repairs to the satisfaction of the survey or of the trustees of the road, the trustees may do the work themselves and recover the cost from the company. As long, therefore, as the trustees of the road exist, it is difficult to say that the repairs of the bridge are not effectually provided for by the 97th section of the special Act which

KEATING. J. This was an appeal against an order by a magistrate requiring the appellants to repair within two months a bridge carrying the railway of the appellants over a turnpike road called the Clapham Road.

The order was make under the 65th section of the Railway Clauses Consolidation Act (8 Vict. c. 20), and in conformity with that section; but it was contended on the part of the appellants that by the provisions of the special Act under which the railway was constructed, that section of the general Act was "expressly varied or excepted so as to prevent its operation in the present case, and the question submitted to us is whether it was so varied or excepted-a question undoubtedly of some nicety.

In considering the question how far an enactment in a general statute is varied or excepted by the special Act, Westbury, L.C., laid down the following rule that "if the particular Act gives in itself a complete rule on the subject, the expression of that rule would undoubtedly amount to an exception of the subject matter of the rule out of the general Act"-Ex parte The Vicar and Churchwardens of St. Sepulchre's in re The Westminster Bridge Act (2). Now, applying that rule to the present case, it would seem that the 97th section of the special Act (the London, Chatham and Dover Railway), does give a complete rule on the subject of enforcing the repair of bridges, including the one in question, for it provides that, if after three days' notice to

(3) Bovill, C.J., Keating, J., and Brett, J.

dispense with the provisions of the 65th section of the Railways Clauses Act. Were it otherwise, the railway company having repaired to the satisfaction of the surveyor of the trustees, or the repairs having been actually completed by the trustees themselves, might be called upon by an order of justices to repair according to the requirements of the surveyor of highways, and thus be subjected to the obligation to satisfy two different surveyors possibly differing as to the nature of the repairs required-a result which could scarcely have been in the contemplation of the legislature in passing the special Act. If, therefore, we were to answer the question as put, namely, "whether the provisions of the Railway Clauses Consolidation Act, 1845, section 65, are expressly varied by those of the special Act," we should do so in the affirmative; but inasmuch as the turnpike Act under which the trustees referred to in the 97th section of the special Act acted has expired, we are clearly of opinion that upon such a determination of the turnpike trust, the provisions of the general Act, even if previously suspended, would revive, and that the order made by the magistrate after such revival would be valid. We therefore dismiss the appeal, but under the circumstances with

out costs.

Appeal dismissed without costs.

Attorneys-Wm. Cleather, for appellants; and Vallance & Vallance, for respondents.

Larceny-Taking Money paid under a Mistake by a Clerk in a Post-office.

The prisoner was a depositor in a postoffice savings bank, in which a sum of eleven shillings stood to his credit. He Le gave notice to withdraw ten shillings, stating the number of his depositor's book, the name of the post-office, and the amount to be withdrawn. A warrant for ten shillings was duly issued to the prisoner, and a letter of advice sent to the post-office to pay the prisoner ten shillings. He went to the post-office, and handed in his depositor's book and his warrant to the clerk, who, instead of referring to the proper letter of advice, referred by a mistake to another for 81. 16s. 10d., and placed that sum upon the counter. The clerk entered that amount as paid in the prisoner's book and stamped it, and the prisoner took пр the money and went away.

When the mistake was discovered, the prisoner was brought back, and then said that he had burnt his depositor's book. The prisoner was charged with larceny of the 81. 168. 10d. The jury found that the prisoner had the animus furandi at the moment of taking up the money from the counter, and the prisoner was convicted:-Held, by a majority of the Judges, that the conviction was right.

The Queen . Prince, distinguished by the majority; but held to be undistin guishable by MARTIN, B., BRAMWELL, B., BRETT, J., and CLEASBY, B.

Held, by COCKBURN, C.J., BLACKBURN, J., MELLOR, J., LUSH, J., GROVE, J., DENMAN, J., and ARCHIBALD, J., that assuming the clerk to have an authority equal to, and to represent, the Postmaster-General, and to have meant that the prisoner should take up the money, though he only so meant because of a mistake which he made as to the identity

*The Judges present on the 18th of January were Cockburn, C.J.; Kelly, C.B.; Bovill, C.J.; Martin, B.; Bramwell, B.; Keating, J.; Blackburn, J.; Pigott, B.; Mellor, J.; Lush, J.; Brett, J.; Cleasby, B.; Grove, J.; Denman, J.; and Archibald, J.

NEW SERIES, 42.-MAG. CAS.

of the prisoner with the person really entitled to the money, the prisoner being aware of the mistake and taking up the money animus furandi, was guilty of taking and stealing the money.

And also, that, although the clerk, and therefore the Postmaster-General, intended that the property in the money should belong to the prisoner, yet as he so intended in consequence of a mistake as to his identity, and the prisoner knew of the mistake, and had the animus furandi at the time, the prisoner was guilty of larceny.

Held, by BOVILL, C.J., KELLY, C.B., and KEATING, J., that the clerk had no property in the money or power to part with it to the prisoner, but only possession; that the authority of the clerk was a special authority not pursued, and that on that ground only the conviction should stand.

By PIGOTT, B., that possession of the money was never given by the clerk to the prisoner, who while it lay on the counter and before he got manual possession of it, conceived the animus furandi, and took it, and therefore it was larceny.

MARTIN, B., BRAMWELL, B., BRETT, J., and CLEASBY, B., dissentientes, held that the money was not taken invito domino, and that there was no trespass involved in the taking by the prisoner, and therefore there was no larceny.

Held by BRAMWELL, B., and BRETT, J., that the authority of the clerk extended to authorise him to part with the possession and property of the larger sum.

CASE reserved by the learned Deputy Recorder for the City of London.

At the Session of the Central Criminal Court held on Monday the 23rd of September, 1872, George Middleton was tried before me for feloniously stealing certain money to the amount of 81. 16s. 10d., of the moneys of the Postmaster-General.

The ownership of the money was laid, in other counts, in the Queen, and in the mistress of the local post-office.

It was proved by the evidence that the prisoner was a depositor in a post-office savings bank, in which a sum of 118. stood to his credit.

In accordance with the practice of the bank, he duly gave notice to withdraw 10s., stating in such notice the number of

L