But, secondly, stat. 44 G. 3. c. lviii. does not in fact give any exemption applicable to the property in question. Sect. 42 does exempt particular kinds of property.

liable to be indicted for such misdemeanour, in the same manner as the
inhabitants thereof or of any township therein would have been liable if
this Act had not been passed. Sect. 97 empowers the Council of the
borough of Manchester, "for the purpose of maintaining and repairing the
highways within the borough," "to make and levy a rate or assessment, to
be called the highway rate,' on the occupiers of all such kinds of property
as by the laws in force for the time being might be assessed to any highway
rate within the township in which the highways to be maintained and
repaired are situate." The township of Beswick was within the borough;
but it had never previously contributed to any highway rate, and was extra-
parochial and the following Acts were referred to in the case: 59 G. 3.
c. xxii., local and personal, public, "for providing that the several high-
ways within the parish of Manchester, in the County Palatine of Lancaster,
shall be repaired by the inhabitants of the respective townships within
which the same are situate;" 6 G. 4. c. li., local and personal, public, “for
making and maintaining a road from Great Ancoats Street in the town of
Manchester, in the County of Lancaster, to join a diversion of the Man-
chester and Salter's Brook Road in Andershaw, in the parish of Ashton-under-
Lyne, in the said county, and two branches of road communicating there-
with;" 14 & 15 Vict. c. xli., local and personal, public, "to continue the
term of the Act of the Sixth year of George the Fourth, chapter fifty one
(local), so far as relates to the turnpike road between Manchester and
Andenshaw in the parish of Ashton-under-Lync, all in the County Palatine
of Lancaster; and to make better provision for the repair of the road;
and for other purposes." The question was, Whether property within the
township of Beswick was liable to the highway rate.

Hugh Hill, for the respondents, referred to Regina v. Lordsmere (15 Q. B. 689.), and Rex v. Kingsmoor (2 B. & C. 190.); but he contended that, assuming the effect of the previous Acts to be that the township of Beswick was not liable to repair the roads within it, still sect. 97 of the Manchester Improvement Act, 1851, was conclusive.

Pashley appeared for the appellants; but, upon being asked by the Court (Lord Campbell C. J., Coleridge, Wightman and Crompton Js.) whether the last mentioned Act was not conclusive, he admitted that the objection to the liability could not be sustained.

Judgment for respondents.

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Sect. 35 enables the then Commissioners to rate the property in the city, except the Abbey, and, as to that, directs that it shall be rated equally with the other property. Sect. 62 enacts that the Commissioners shall not exercise any power, except as directed by the Act, within the precincts of the Abbey; but that, as to these precincts, the Dean and Chapter shall be Commissioners, if they think fit to exercise such power. The provisions relate merely to the persons who are to execute the powers.

Pearson, contrà. First, this property was exempt from rating under stat. 44 G. 3. c. lviii. Under sect. 35, the substantive rating clause, the property within the Abbey is expressly excepted. Sect. 62 also expressly provides that the Commissioners shall have no power to rate the property within the precincts: though, if the Dean and Chapter think fit, they themselves may set the Act in motion within the precincts, acting as Commissioners themselves, and in that case rating, as directed in sect. 35, the precinct equally with the rest of the city. By sect. 49 the moneys raised by the rates will be applied to lighting the streets, lanes, and other public passages and places of the city; but the precincts of the Abbey will not share in this unless the Dean and Chapter choose to adopt the Act. And they in fact are not likely to derive benefit from the Act: the property, occupied to a great extent by private gardens, will not require lighting. So, as to the footpaths in sect. 55, the precincts are expressly taken out of the enactment. Secondly, The Public Health Act, 1848, does not apply to such a case. The Act, by sect. 8, can be applied to any city &c. only upon the petition of

not less than one tenth of the inhabitants rated to the
relief of the poor: the inhabitants of the precinct would
thus have no voice in adopting or refusing to adopt the
provisions. [Thompson pointed out that the case did
not state that the occupiers of the precinct were not
rated to the poor, though this might be probable, from
the ordinary usage elsewhere.] If that is denied, the
Court will send back the case to be restated as to this
fact, unless the fact be held unimportant. The Public
Health Act, 1848, should be read as if the Provisional
Order, and the confirming statute, were incorporated with
it. Then the effect of the Provisional Order, so incor-
porated in sect. 88, will be that the whole of the area
within the city, saving the exempted part, shall be that
within which the Act shall be in force. It is said that the
words "any kind of property" are inapplicable to pro-
perty exempted generally by reason of its situation: but
surely one kind of property is that which, in respect of
its locality, has peculiar qualities. [Crompton J. At
the beginning of sect. 88 the rate is directed to be made
upon the occupier "of all such kinds of property as by
the laws in force for the time being are or may be
assessable to any rate for the relief of the poor:" can
that refer to a kind of property assessable or not merely
in respect of locality?] To qualify the exemption in
the later part of the section by an inference thus drawn
from a distinct and separate part of the section would
be equivalent to repealing an affirmative statute by
implication from another affirmative statute, which
cannot be done; a principle which is illustrated by
Foster's Case (a), Goldson v. Buck (b), Rex v. Idle (c),
(b) 15 East, 372.

(a) 11 Rep. 56 b. 62 b.

(c) 2 B. & Ald. 149.

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of Health.

Regina v. St. Leonard's, Shoreditch (a), Usher v. Walters (b), Pilkington v. Cooke (c), Wrightup v. Greenacre (d). In Regina v. St. George, Southwark (e), words of a statute expressly empowering to rate all inhabitants and occupiers of houses were held to be controlled by an exemption recognised, though not expressly given, in another part of the same statute.

T. P. E. Thompson, in reply. Sect. 8 of The Public Health Improvement Act, 1848, cannot be construed as excluding from the application of the Act all districts the inhabitants of which are not rated to the poor. It merely makes the assent of a certain portion of rated inhabitants a test of the fact that the place may generally be benefitted by the adoption of the Act: and the petition is followed, not by the immediate application of the Act, but by the appointment of an inspector. Whatever class of inhabitants were fixed upon for this purpose, some anomaly like that suggested on the other side would arise. (He was then stopped by the Court.)

ERLE J. (g). The question is, Whether a rate can be laid by the Local Board of Health on a house which is within the area of the city and also within the precinct of the Abbey. Mr. Pearson contends that the Provisional Order could not take effect within the precinct because the inhabitants are not rated to the relief of the poor, and the jurisdiction of the Board of Health cannot come

(a) 13 Q. B. 964.

(c) 16 M. & W. 615.

(e) 10 Q. B. 852.

(b) 4 Q. B. 553.
(d) 10 Q. B. 1.

(g) Lord Campbell C. J. and Coleridge J. were absent.

:

into existence without the petition of one tenth of the inhabitants who are so rated. But I think it is not essential to the jurisdiction that the inhabitants of the particular spot should be rateable to the poor. What Parliament has required is the petition of one tenth of the inhabitants rated to the poor within the whole boundary if there be such a petition, all the inhabitants, rated to the poor or not, are brought, within the 8th section of The Public Health Act, 1848. Such a petition was made: and the Provisional Order puts the Act into operation over the whole area of the city. There can therefore, according to ordinary understanding, be no doubt that the Local Board of Health may act within the precinct. Then, the general power to rate being given to this extent, the main point for the appellant is that the property within the precinct falls within the exemption in the third proviso of sect. 88, inasmuch as property so situated is exempt from rate by stat. 44 G. 3. c. lviii. Now, assuming that such an exemption is created by the statute last mentioned, the question propounded is, Whether the third proviso in sect. 88 of the Public Health Act, 1848, applies. I am of opinion that it does not; and that the proviso does not extend to property exempted in respect of its locality, but only to property exempted in respect of its kind. To make this distinction intelligible in almost all local Acts for lighting and paving, certain kinds of property are selected for exemption, in consideration of the nature of the property which derives benefit from the Act: one kind of property may derive such benefit: another, such as arable and pasture land, may not, and is therefore exempted from the rate; and it was thought reasonable to perpetuate such an exemption. That I

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