158 CASES CONNECTED WITH THE DUTIES OF MAGISTRATES. [N. S.
the purpose of informing the sessions of the amount of business which is likely to be transacted. In The Queen v. The Justices of Derbyshire (2), the Court appear to have thought that a rule by which appeals are to be entered before twelve o'clock on the first day of sessions, was a reasonable one, and held that where such rule was acted upon by the sessions, this Court would not interfere. In The Queen v. The Justices of Montgomeryshire (3), where by the practice of a particular sessions twenty-eight days' notice of trial was required in the case of respited appeals, it was held that the practice was not so unreasonable as to induce this Court to grant a mandamus in a case where the notice not having been given, the sessions had refused to hear the appeal, and The Queen v. The Justices of Monmouthshire (3), is a distinct authority that where there is a fixed rule of practice at sessions, and nothing so absurd in it as to shew that it is illegal, the mere fact that the appellant and his attorney were ignorant of it is not the slightest excuse. He also cited The King v. The Justices of Wiltshire (4).
Sills, in support of the rule.-The latest authorities in this Court establish that the sessions cannot make a rule which would impose on the party appearing before them a condition beyond what the statute renders necessary. The Act 9 Geo. 4. c. 61. s. 27, imposes certain conditions on those who appeal from the refusal to grant a license, and the sessions cannot take away the right of appeal by adding to these conditions. He cited The King v. The Justices of Norfolk (5), The Queen v. The Justices of Surrey (6), The King v. The Justices of Staffordshire (7).
BLACKBURN, J.-I am of opinion that the sessions went beyond their jurisdiction in (2) 22 Law J. Rep. (N.s.) M.C. 31.
(3) 3 Dowl. & L. P.C. 119.
(4) 10 East 404.
(5) 5 B. & Ad. 990.
(6) 6 Dowl. & L. P.C. 735; s. c. 18 Law J. Rep. (N.s.) M.C. 175.
(7) 4 Ad. & E. 842; s. c. 6 Law J. Rep. (N.s.) M.C. 155.
making a regulation in these terms, and that their order for the appellant to pay costs must be quashed. There can be no doubt that a Court of Quarter Sessions has power to make rules for the regulation of its own practice, and the only question is how far the power will be regulated by the Court of Queen's Bench. In the present case the quarter sessions have made a rule that all appeals shall be en tered with the Clerk of the Peace, at least three days before the sitting of the Court, and although in a case where this notice had not been given they might perhaps have adjourned the appeal for the purpose of preventing undue hardship to the appellant, yet if they do not choose to do so, his right of appeal is sacrificed. In the present case the sessions in pursuance of this rule refused to hear an appeal from the licensing justices. Now the Alehouse Act, 9 Geo. 4. c. 61. s. 27, gives a right of appeal against the decision of the licensing justices upon the performance of certain conditions. But the sessions by their rule have added another to those conditions, and this they have no power to do. They might well require the appeal to be entered on the first day of the sessions, but they have gone further than what is reasonable and necessary. The order must be quashed.
QUAIN, J.-I am of the same opinion. The quarter sessions had no power to impose a fresh condition on the right to appeal. The rule in question goes far beyond the usual practice at sessions, and imposes conditions in excess of what the Act 9 Geo. 4. c. 61 requires. The cases of The King v. The Justices of Norfolk (5) and The King v. The Justices of the West Riding of York (8) practically decide the question, for they shew that the appellant is not bound to perform any condition which the Act giving the right of appeal to the sessions does not require.
Attorneys-Taylor, Hoare & Co., agents for Laxton, Stamford, for appellant; Tooke & Holland, for respondents.
THE DUTIES AND OFFICE OF MAGISTRATES.
MICHAELMAS TERM, 1872, TO MICHAELMAS TERM, 1873.
ADULTERATION OF FOOD ACT-proof that article sold was represented to be unadulterated: guilty knowledge-The Adulteration of Food, &c., Act, 35 & 36 Vict. c. 74, by s. 2, enacts that every person who shall sell any article of food or drink with which to the knowledge of such person any ingredient or mineral injurious to the health of persons eating or drinking such article has been mixed, and every person who shall sell as unadulterated any article of food or drink, or any drug which is adulterated, shall be liable to (certain prescribed penalties). By section 3, any person who shall sell any article of food or drink, or any drug, knowing the same to have been mixed with any other sub- stance, with intent fraudulently to increase its weight or bulk, and who shall not declare such admixture to any purchaser thereof, before delivering the same, and no other, shall be deemed to have sold an adulterated article of food or drink or drug, as the case may be, under this Act. The appellant went into the shop of the respondent, a provision and butter dealer, and asked for a pound of butter at seven pence. A pound of butter was handed to him, in the presence of the respondent, which was after- wards found to be adulterated with different fats, not necessarily injurious to health :-Held, first, that there was sufficient evidence under section 2 of a sale of the butter as unadul- terated; secondly, that it was not made neces- sary by section 3 to prove that the respondent knew the butter had been mixed with some substance, with intent fraudulently to increase its bulk. Fitzpatrick v. Kelly, 132
ALEHOUSE license for sale of exciseable liquors: ap- plication for to special sessions after unsuccessful application to general sessions]—A house in Mid- dlesex, kept for years as an inn under 9 Geo. 4. c. 61, was in February, 1872, left by the licensed tenant, who gave up possession to T. In March following, at the annual general licensing meet- ing, application was made for a license on behalf
of T., but this was refused, and no appeal was made from the decision. The license expired on April 5th, when the house was shut up, and in May T. applied under s. 14 to the special sessions for a license, who refused it on the ground that the application had been already disposed of at the general licensing sessions:- Held, that after an unsuccessful application at the annual general licensing meeting, T. could not afterwards renew his application at the special sessions. R. v. Taylor, 13
annual value: condition in license for m- provement of premises :]-At a general annual licensing meeting, M., the occupier of a houso licensed as a public-house under 9 Geo. 4. c. 61, applied for a renewal of the license. The justices renewed the license, but with the following notice upon it-"This license is renewed on condition that the licensed premises shall, before the next general annual licensing meeting, be improved and made of the annual value of 30%, in default of which this license will not be renewed":-Held (MELLOR, J., hæsi- tante), that the justices had no power to impose such a condition upon M.; that the provision in section 46 of the Licensing Act, 1872, as to improving the premises does not apply to a house already licensed under 9 Geo. 4. c. 61, and that the condition was null and void. R. v. Justices of Exeter, 35
Semble, that part of a license cannot be quashed upon certiorari without quashing the whole. Ibid.
repeal of sections in 9 Geo. 4. c. 61, giving appeal to Quarter Sessions: certificate for sale of wine, &c., to be consumed off premises: right of appeal under Wine and Beerhouse Act, 1869] By "The Wine and Beerhouse Act, 1869," 32 & 33 Vict. c. 27, s. 8, all the provisions of the Act, 9 Geo. 4. c. 61, as to ap- peal from any act of the justices at the general
annual licensing meeting, shall, so far as may be, have effect with regard to grants of certi- ficates under this Act, &c. . . . By the Licens- ing Act, 1872, 35 & 36 Vict. c. 94. s. 75, and schedule 2, the provisions of the Act, 9 Geo. 4. c. 61, as to appeal (ss. 27, 28, 29), are repealed, "except in so far as these sections relate to the renewal of licenses or transfer of licenses:" -Held, that in the absence of any express repeal of s. 8 of the Wine and Beerhouse Act, 1869, the appeal given by that section was not taken away by the repeal of the appeal sections in the original Act, 9 Geo. 4. c. 61. R. v. Smith, 46
ALEHOUSE (Continued)-beerhouse having license on first of May, 1869: discretion to refuse certificate: Wine and Beerhouse Act, 1869]-By the Wine and Beerhouse Act, 1869 (32 & 33 Vict. c. 27), s. 19, where, on the first of May, 1869, a license is in force with respect to any house for the sale of beer to be consumed on the premises, it shall not be lawful to refuse an application for a certificate in respect of such house, except on one or more of the grounds specified in sec- tion 8. By the Intoxicating Liquors (Licensing Suspension Act) Act, 1871, 34 & 35 Vict. c. 88. s. 3, it was declared that, where a license had by forfeiture or lapse of time ceased to be in force, the justices might, in their discretion, refuse a certificate upon any ground on which they might refuse a certificate with respect to any house as to which a license was not in force on the first of May, 1869. By the Licensing Act, 1872, 35 & 36 Vict. c. 94. s. 75, the Act of 1871 is repealed, and section 19 of the Act of 1869 is made perpetual :—Held, that, notwith- standing the repeal of 34 & 35 Vict. c. 88. s. 3, the justices retained their discretion to refuse a certificate in the case of a house licensed on the first of May, 1869, where the license had lapsed before application was made for renewal. R. v. Curzon, 155
AMENDMENT-on certiorari in order of justices: bas- tardy]-The mother of a bastard child, born on the 27th of May, 1870, applied on the 11th of August to M., a justice, who issued a summons against T., the alleged father. Several successive summonses were issued, and in March, 1871, T. was served with a summons to appear before the justices on the 11th of April. The mother and T. attended, but the mother withdrew the sum- mons and on the same day applied to B., another justice, who issued a summons requiring T. to appear on the 25th of April. On that day an order was made, which recited the application to M., adjudged T. to be the father of the child, and ordered him to pay 2s. 6d. per week, com- mencing from the 11th of August, 1871, on which day the mother had applied to M.:- Held, that section 7 of 12 & 13 Vict. c. 45 gave the Court no power to amend this invalid order,
by alleging the application to B. instead of the application to M., or by making the payments to begin from the 11th of April, 1871, instead of from the 11th of August, 1870. R. v. Tomlin son, 1
of indictment for larceny: variance : pleading] -An indictment alleged that the prisoner stole nineteen shillings and sixpence. The Court ordered it to be amended at the trial by describ ing the property stolen to be a sovereign, sub- ject to the question whether the Court had power so to do. The jury found the prisoner guilty of stealing a sovereign :-Held, that the Court had power to order the amendment to be made as a variance between the statement and the proof in the description of a thing named in the indictment, under 14 & 15 Vict. c. 100. s. 1. R. v. Gumble, 7
APPEAL to quarter sessions: signature to notice of appeal:-By 12 & 13 Vict. c. 45. s. 1, in every case of appeal (except as thereinafter mentioned) to the General or Quarter Sessions of the Peace, the notice of appeal "shall be in writing signed by the person or persons giving the same, or by his, her or their attorney, on his, her or their behalf," &c. :-Held, that a notice of appeal signed, in the name of the ap- pellant, by a clerk to the appellant's attorney, by the authority of the appellant, and after- wards acknowledged by him, was sufficiently signed. R. v. Justices of Kent, 112
Validity of rule of quarter sessions as to entry of appeal and deposit of grounds. See Quarter Sessions.
ARSON-"stack of straw:" straw on lory in the course of conveyance to market]-By 24 & 25 Vict. c. 97. s. 17, whosoever shall unlawfully and maliciously set fire to any stack of corn. grain, pulse, tares, hay, straw, haulm, stubble, or of any cultivated vegetable produce, or of furze, gorse, heath, &c., or to any stack of wood, shall be guilty of felony." A quantity of straw, packed on a lory, in course of transmission to market, and left for the night in the yard of an inn, is not a stack of straw within the meaning of the above section, and the setting fire thereto wilfully and maliciously is not felony. R. v. Satchwell, 63
ASSAULT-indecency to children: mere submission not consent]-An assault must, in the absence of fear or fraud to procure consent, be an act done contrary to the consent of the patient, but mere submission by the patient, in ignorance of the moral nature of the act, to an act of in- decency done by the agent, does not amount
to such consent; therefore where two boys of eight years of age submitted to indecent acts on the part of a grown-up man in ignorance of the nature of the acts to be done and done, the man was held to be rightly convicted of an indecent assault. R. v. Lock, 5
AUDITOR-See Poor Law Audit.
BANKRUPTCY-Admissibility of trader's examina- tion. See Evidence.
BASTARDY-hearing at petty sessions after death of the mother]-The evidence of the mother of a bastard child, who is an applicant for an affilia- tion order against the putative father, is no- cessary at the hearing of the summons before justices sitting in petty sessions under 8 & 9 Vict. c. 101. s. 3. Therefore, if the mother die after making her application for a sum- mons, and before the hearing of the summons at petty sessions, the justices have no jurisdic- tion to make an order thereon. R. v. Arm- itage, 15
Semble, it may be otherwise on the hearing of an appeal against an affiliation order under 8 Vict. c. 10. s. 6, if the mother die after the hearing of a summons at petty sessions, and if she has been examined in the presence of the defendant and might have been cross-examined by him at the petty sessions. Ibid.
Amendment of invalid order on its removal by certiorari. See Amendment.
BREAD-sale of otherwise than by weight]-The ap- pellant was convicted under 6 & 7 Will. 4. c. 37. s. 4 for selling bread without having a cor- rect beam or scales, &c. The material of which the bread was made was in all respects the same as ordinary bread, except that carbonic acid gas was forced into it. It was crusty all round, and was known in the trade as French or fancy bread, but in no way, except the man- ner of baking in separate loaves, resembled what was called French or fancy bread at the time of the passing of the Act:-Held, that the conviction was right, as the exception in s. 4 as to selling French or fancy bread could not be construed to apply to bread of such a descrip- tion.-The Queen v. Wood (38 Law J. Rep. (N.S.) M.C. 144) observed upon. The Aerated Bread Company v. Grigg, 117
CAB-STAND-See Railway Station. Town Police Clauses Act.
CERTIORARI-time for application for order of quarter sessions]-The general rule that applica- tion for a writ of mandamus to the quarter ses- sions to enter continuances and hear an appeal must be made not later than the term following the sessions at which the refusal was made, NEW SERIES, 42,-MAG, CAS,
does not apply to an application to remove into this Court an order of sessions for the purpose of getting it quashed. R. v. Justices cj Lreck. nockshire, 135
CONSENT-Mere submission. See Assault.
CONVICTION-Scienter; and for continuing offence. See Penalty. And see Adulteration of Food Act. CORONER-Appointment of Deputy. See Perjury.
DEBTORS ACT, 1869-Indictment under. See Evi dence.
DEED-What is a Deed? See Forgery.
EMBEZZLEMENT-person paid by commission to get orders: clerk or servant: question for jury]-The prisoner was employed to solicit orders for the prosecutors, and was to be paid by a commission on the sums received through his means. Не was at liberty to apply for orders whenever he thought most convenient, but was not to employ himself for any other persons than the prosecu- tors. The judge at the trial directed the jury that the prisoner was a clerk or servant within the meaning of 24 & 25 Vict. c. 96, s. 68:- Held, upon the above facts, that he was not a clerk or servant within the meaning of 24 & 25 Vict. c. 96. s. 68, and therefore that the direction was wrong, but that, generally speak- ing, whether a person under such an employ- ment and paid by commission is a clerk or ser- vant is a question of fact for the jury. R. v Negus, 62
money received neither for, nor in the name of, nor on account of the master]-Embezzle- ment of money by a servant under 24 & 25 Vict. c. 96. s. 68 must be in respect of money delivered to or received, or taken into possession by the servant for or in the name of or on the account of his master. And where a servant, -whose duty it was to take a barge belonging to his master with cargo from A. to B. and receive back such return cargo, and from such persons as his master should direct, and such only, contrary to the express orders of his master, which were to return empty from B. to C., part of the return voyage to A.,-took, nevertheless, a return cargo from B. to C., and received the freight from the owner of the cargo (who know only the prisoner in the tran- saction) and did not account to his master for the freight, and denied having carried such return cargo,-Held, that the money was not received by him for or in the name of or on the account of his master, and that he was not guilty of embezzlement. R. v. Cullum, 64
EVIDENCE-admissibility of examination of trader in liquidation on trial of indictment under Debtors
Act for obtaining property by false pretences]- On an indictment of a trader for obtaining pro- perty on credit, under the false pretence of dealing in the ordinary way of his trade, within four months before his liquidation contrary to the 11th section of the Debtors Act, 1869, an examination of the trader in liquidation taken under the 97th section of the Bankruptcy Act, 1869 (32 & 33 Vict. c. 71), was admitted in evidence against him. The summons to bring up the trader for examination was issued before the certificate of the appointment of the trustee was given by the registrar. The trader at- tended, was examined, and the examination was taken after the giving of the certificate of ap- pointment:-Held, that whether the summons was regularly issued or not, the trader by ap- pearing and submitting to be examined, waived the irregularity, if any, and the examination was properly taken and was admissible in evidence against the prisoner on the trial of the indict- ment. R. v. Scott followed. R. v. Widdop, 9 EVIDENCE (continued)-deposition of prisoner]- The respondent was indicted for arson; and at the trial the deposition of the respondent taken on oath upon an inquiry into the cause of the fire, was admitted as evidence in support of the indictment:-Held, that the evidence was ad- missible, R. v. Coote, 114; P.C., 45
FORGERY-deed: letters of orders]-By 24 & 25 Vict. c. 98. s. 20, "whosoever, with intent to defraud, shall forge or alter, or shall offer, utter, dis- pose of or put off, knowing the same to be forged or altered, any deed, or any bond or writing obligatory, &c., shall be guilty of felony." The prisoner altered the name of a person ordained so as to change it to his own, and made other alterations in Letters of Orders signed, sealed and issued under his episcopal seal by the Bishop of Bath and Wells:-Held, that such document was not a deed within the above sec- tion of the statute, and therefore the prisoner could not be convicted of felony under that sec- tion. R. v. Morton, 58
FRIENDLY SOCIETY-sickness entitling member to relief: insanity]-By rules of a friendly society established under 18 & 19 Vict. c. 63. s. 9, a member, under certain conditions, was entitled to receive eight shillings a week during any sick- ness or accident that might befall him, unless by rioting or drunkenness, &c.:-Held, in the absence of words shewing a different intention, that insanity was a sickness which entitled a member to relief under the above rule. Burton v. Eyden, 115
HACKNEY CARRIAGE-Right to occupy stand on railway premises. See Railway Station. And see Town Police Clauses Act.
HARBOURS, DOCKS AND PIERS CLAUSES ACT- damage to pier: inevitable accident: liability of owner of vessel]-By the Harbours, Docks and Piers Clauses Act, 1847 (10 Viet. c. 27), s. 74, "the owner of every vessel shall be answerable to the undertakers for any damage done by such vessel, or by any person em ployed about the same, to the harbour, dock, or pier; and the master, or person having the charge of such vessel, through whose wilful act or negligence any such damage is done, shall also be liable to make good the same, &c., provided always that nothing herein contained shall extend to impose any liability for any such damage upon the owner of any vessel where such vessel shall, at the time when such damage is caused, be in charge of a duly licensed pilot, whom such owner or master bound by law to employ, and put his vessel in charge of." A vessel, by inevitable accident, struck against a pier and thereby damaged it:-Held, that the owner of the vessel was answerable for damages under the section, the proviso making an exception where the vessel is in charge of a pilot, but no exception in case of damage done by inevitable accident. Dennis v. Tovell, 33 HIGHWAY-proceedings for stopping up: vestry meeting: sufficiency of notice]-Notice of a vestry meeting was given in the words fol- lowing "Hamlet of Trevecca.-I, the under signed, hereby give notice that a meeting of the ratepayers of the above hamlet will be held at the vestry room, &c. . . . . for the purpose of taking into consideration the proceedings now taken by Mr. John Parry, against Mr. Rhys Davies, surveyor of the Talgarth District Highway Board, respecting Blaenanbach Road, and for other purposes connected with the highways of the above hamlet." The meeting so convened passed a resolution that the road should be stop- ped up, under the Highways Act, 5 & 6 Will. 4. c. 50. s. 84:-Held, that, having regard to the fact that proceedings had been taken for compelling the parish to repair the highway, the notice sufficiently informed the public that any steps which might be necessary for defeat- ing these proceedings, such as stopping up the highway, would be considered by the vestry, and that the meeting was therefore duly con- vened. R. v. Powell, 129
INDECENT ASSAULT-consent. See Assault.
INDICTMENT-Defective averment cured by verdict. See Receiving Stolen Goods.
Variance. See Amendment. INSANITY-a Sickness. See Friendly Society. JUDGMENT DEBT. See Pauper. LARCENY indictment: evidence to support allega- tion of stealing nineteen shillings in money]--The
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