Defendants must appear personally to receive judgment upon an information.

A criminal information

house-keepers who voted against their recommendation of candidates for members of parliament for that borough. It appeared that they had acted very grossly in this matter; having previously threatened to ruin these people, by not granting them licenses, in case they should vote against those candidates whose interest these justices themselves espoused; and having afterwards actually refused them licenses upon this account only. And L. Mansfield declared that the court granted this information against the justices, not for the mere refusal to grant the licenses, (which they had a discretion to grant or refuse, as they should see to be right and proper,) but for the corrupt motive of such refusal, for their oppressive and unjust refusing to grant them, because the persons applying for them would not give their votes for members of parliament as the justices would have had them.

Rex v. Hann and Price, Justices of the Peace for the borough of Corfe Castle, 3 Burr. 1716. On shewing cause against an information which had been prayed for against the defendants, for a misdemeanor in the execution of their office, in refusing to grant a license to sell ale to one Ingram, an innkeeper in that borough, merely from a motive of resentment against him, for having espoused an opposite interest in the election for members of that borough; the defence was, that they did not act from any resentment or corrupt motive, but solely because Ingram was an improper person, and had kept a disorderly house, and continued to keep it after full notice to the contrary, and in particular that he encouraged gaming and cockfighting at his house.-L. Mansfield Ch. J. said, "The court should never interpose against magistrates, unless they have acted from bad motives and malá fide; especially in such a case as this, where they are intrusted with an absolute discretion: but for that very reason, this is the strongest case for the interposition of the court, if it appear that they have acted upon corrupt motives. If it did appear clearly that this man kept a disorderly house, it would be a reason against the court's interposing against the justices. But this does not clearly appear."- And he declared it to be of very dangerous consequence to permit the due discretion of the justices to be influenced by considerations of this kind.-The court made the

rule absolute.

Afterwards, the justices confessing themselves guilty of the information, it was moved for a rule to dispense with their personal appearance, on the undertaking of their clerk in court to answer for their fines. But the court upon full debate were unanimous in refusing the motion. The general doctrine laid down by the court was, that though such a motion was subject to the discretion of the court, either to grant or refuse it, where it was clear and certain that the punishment would not be corporal; yet it ought to be denied in every case where it was either probable or possible that the punishment would be corporal. And this, for the sake of example and prevention; as the notoriety of their being called up might deter others from the like offences. And finally, upon their appearance in court, the sentence was, that they should be committed for a month, fined 50%. each, and further imprisoned till the fine be paid. 3 Burr. 1786.

A motion was made for leave to file an information against two justices of the peace for the county of Salop, upon a charge of

the second term

having improperly refused an ale-license. But after stating that against magisthe refusal was in September last, the counsel doubted whether trates may be this application were made in time, this being the second term moved for in after the fact complained of; and afterwards Lord Ellen- after the offence, borough C. J. stated, that upon an accurate review and considera- there being no tion of the precedents and practice, the counsel was now in time intervening as to move for the information within the second term, no assizes sizes. having intervened. Rex v. Herries, Esq. and Peters, Clerk.

13 East, 270. Rer v. St. Aubyn and Others, cited as in point. 13 East, 271. note (a). *

Rex v. Holland and Forster, 1 T. R. 692. An information An information had been moved for against the defendants, justices for Middlesex, will be granted for improperly granting an ale-license to one Harrison, who had for improperly been refused one by the justices at their last general meeting, on license. granting an ale

account of misbehaviour. It appeared that the defendant Forster had been present at that general meeting at the time when the license was refused; but he afterwards told the other defendant Holland, who was not present at the general meeting, that the only reason why a license had not been granted then, was, that they might have an opportunity of inquiring into the character of Harrison, and had accordingly prevailed upon Holland, at a private meeting held by those two only, to join in granting a license. The Court were clearly of opinion, that an information should be granted against a justice, as well for granting a license improperly, as for refusing one in the same manner. That it had already been done in the case of Rex v. Filewood; and indeed the mischief of granting a license improperly was infinitely greater than that of refusing one; for in the former case it might be productive of injury to the whole community, while in the latter the grievance was felt only by the individual. That the only ground of these applications was the improper conduct of the magistrates. But as it appeared in this case that Holland, though not altogether blameless, had been deceived by Forster, they discharged the rule as to the former, upon his paying the costs of the application as against himself; and as to Forster, they granted the information.

Rer v. Bingham Clerk, M. 54 Geo. 3. M. S. The defendant was convicted at Winchester Sum. Ass. 1813, of a conspiracy to defraud the revenue of certain stamp duties. It appeared in evidence at the trial that he was a justice of the peace, and one of those who attended on the general licensing day, when he obtained, through an improper influence, a license in order to enhance the value of some premises which were his own property. In pronouncing judgment Le Blanc J. said, "The court does not go out Nov. 26. 1815. of its way to cast reflections upon the conduct of those who are

N. B. The motion in this case was not renewed, but at Shrewsbury Lent Assizes, 1812, the same defendants were tried upon an indictment, charging them with having corruptly and without any lawful cause whatever, and from motives of private malice, refused to grant the prosecutor a license to keep a public house. There was not one tittle of evidence to support the charge, and the defendants were acquitted. Mr. Serjeant Marshal (who went the Oxford circuit for Mr. Justice Lawrence) in his address to the jury observed, that magistrates were not obliged to give any reason for withholding a license, and that the discretion which the law had so properly placed in their hands was not to be questioned, unless it clearly appeared, that they acted from corrupt and unjust motives. The law would protect magistrates even in case of error, where no corrupt motive could be proved. MS.

K. B.

Per Ashhurst J.
S. C.

The court re

rule nisi for a

criminal in. formation

against two magistrates so late

in the second term after the

not before the court; but it would not discharge its duty if it did not declare, that it is not a proper exercise of the functions o fany magistrates so to grant a license, when they know that no house exists to which that license is to be applied. The legislature has taken particular care that no person concerned in public-houses or victualling-houses, under the description of brewers or dealers in spirits, shall, themselves, take part in the granting of licenses, in order to guard against any improper influence in the granting of them, and it is subject to the same mischief and the same inconvenience that any person in the situation of a magistrate, being the owner of a house, which afterwards may be converted into a public house, should know and should consent to a license being kept on foot, which may ultimately tend to increase the value of his property, whenever that house may be conveyed to a person to whom the license may attach."-The defendant was sentenced to be imprisoned in Winchester gaol for six calendar months, and Lord Ellenborough C. J. directed the proceedings to be laid before the lord chancellor.-See the printed report of the trial, &c. by Gurney, 1814.

Rex v. Sainsbury, M. T. 32 Geo. 3. 4 T. R. 451. If there be two sets of magistrates, as for a county and a borough, and having a co-ordinate jurisdiction in that borough, and one of the two sets appoint a meeting for granting alehouse-licenses, and when the day arrives, refuse a license to an applicant for one; and then the other set of magistrates, having subsequently to the prior appointment, but before the first licensing day, appointed a future day for the same purpose, license on that day the person to whom on the former day a license had been refused, it is an indictable offence.

The jurisdiction of holding the meeting directed by the 26 Geo. 2. attached in those magistrates, who first gave notice of the meeting; and it was a breach of the law in the other magistrates to attempt to wrest this jurisdiction out of their hands; for what the law says shall not be done, it becomes illegal to do, and is therefore the subject-matter of an indictment, without the addition of any corrupt motives. And though the want of corruption may be an answer to an application for an information, which is made to the extraordinary jurisdiction of the court, yet it is no answer to an indictment, where the judges are bound by the strict rule of law.

Rex v. Marshall and Grantham, 13 East, 322. A motion was fused to grant a made for a criminal information against the defendants, justices of the peace for the parts of Lindsey in the county of Lincoln, for having, on the 24th of October last, improperly, as it was sug gested, granted an ale-license. The prosecutor had given the magistrates notice of the intended application to this court on the 26th of January, but the court now refused to entertain it, because it was made so late in the second term, that the magistrates would have no opportunity of shewing cause in the present term against a rule nisi, for an information, if granted. And Le Blanc J. read a note of a case of Rex v. Thomas, H. 41 Geo. 3. which was a similar application against a justice of the peace; and because the offence was stated to have been committed in October, and the motion was not made till so late in Hilary term that there was not

grievance, as to

prevent them from shewing cause against such rule in the

same term.

time for the magistrate to shew cause in that term against it, the

court refused to grant the rule.

By stat. 26 Geo. 2. c. 13. § 12. no justice of the peace, being a Justices being common brewer of ale or beer, innkeeper or distiller, or a seller of brewers, disand dealer in ale or spirituous liquors, or interested in any of the tillers, &c. prosaid trades, or being a victualler or maltster, shall be capable or have any power to grant licenses for selling ale, beer, or any other licenses. liquors by retail, but the same shall be null and void.

hibited from granting

But by stat. 39 Geo. 3. c. 86. § 3. In case it shall happen in any In cities and city, town, or place, that any of the corporate justices or magistrates towns corporate. shall not be capable of acting in granting licenses, by reason of being sellers of or dealers in foreign spirits, it shall be lawful for any justice acting for the county at large, within which such city, town, or place is situate or next adjoining thereto, at the request in writing of the chief magistrate of such city, town, or place, to act within the same for the purpose of granting licenses to sell ale, &c. by retail therein, instead of the justices disqualified as aforesaid.

By stat. 9 Geo. 2. c. 23. § 14. 24 Geo. 2. c. 40. § 24. The justice's Justice's clerk's clerk shall have 2s. 6d. and no more, for each such license.

fee.

By stat. 26 Geo. 3. c. 31. § 3. no license (as in that act men- License retioned) shall entitle any person to keep an alehouse in any other strained to the place than that in which it was first kept by virtue of such place. license; and such license, with regard to all other places, shall

be void.

§ 4. And all licenses granted (by the justices) at the general licens- How long to ing day, shall be made for one year only, to commence on the 29th continue. day of September. (See 48 Geo. 3. c. 143. § 3, 4. post. p. 38.)

By stat. 32 Geo. 3. c. 59. certain provisions are enacted respecting the renewal of licenses granted at the general licensing day, to the executors, or to the successor, of any person dying or removing from a licensed house; but such provisions appear to be superseded, (if not repealed,) and others substituted in lieu thereof, by stat. 48 Geo. 3. c. 143. quod vide post. p. 39.

Not to extend

to houses not licensed the year preceding, nor

By stat. 32 Geo. 3. c. 59. § 4. & 5. it is enacted, that nothing in that act shall extend to empower any justice of the peace at any petty sessions to grant any new license to any house, the Occupier whereof was not duly licensed at the general licensing to alter the time day next before such petty sessions; nor to alter the time of of granting granting licenses; nor to oblige persons not licensed the year licenses, &c. preceding to produce certificates in the city of London.

And by the same statute, § 2. (a) In the counties of Middlesex Middlesex and and Surry, the justices at the general licensing meetings shall Surry. appoint not less than six, nor more than eight special days of meeting yearly at different equal periods, as near as may be next ensuing such general meeting, and shall cause due notice to be given of the times and places of such special meetings; at which meetings two justices of the division may grant to the executors, administrators, or assigns, of such licensed persons, or the person coming into any house which hath become empty or unoccupied as aforesaid, a license to such new tenant or occupier (on his producing a certificate, and entering into a recognizance as aforesaid); or in their discretion they may allow a continuance of any

(a) Quere, If not virtually repealed by stat. 48 Geo. 3. c. 143.?

48 G.3. c. 143. Stamp duties

on licenses repealed.

56 G. 3. c. 113. Duties on

Licenses for retailing beer, &c. repealed.

$ 3. $4.

48 G. 3. c. 143. $ 2.

Licenses to be granted by commmissioners of excise

in London and by collectors in the country.

Licenses taken out in the country to be grant

ed by collectors of excise.

Duration of license.

license before granted in manner aforesaid until the next general licensing day.

By stat. 48 Geo. 3. c. 143. The stamp-duties imposed by 44 Geo. 3. c. 98. upon ale-licenses were repealed, and a new duty of 21. 2s. imposed.

And by stat. 56 Geo. 3. c. 113. From the 5th July, 1816, the duties payable in respect of licenses for retailing beer or ale, cider, perry or spirits, are repealed,'and in lieu thereof, the several annual sums after mentioned are to be paid by such retailers; that is to say, every person who shall sell beer or ale by retail, or who shall sell cider or perry to be drank or consumed in his, her, or their house or premises, for every license to be taken out as aforesaid: if the dwelling-house in which such person shall, at the time of taking out such license, reside or retail beer or ale, or sell cider or perry to be drank or consumed as aforesaid, shall not, together with the offices, courts, yards, and gardens therewith occupied, be rated under the authority of any act or acts of parliament for granting duties on inhabited houses at a rent of 15l. per annum or upwards, 21. 2s.: if rated as aforesaid at 15l. per annum or upwards, and under 20., 31. 3s.: if at 201. per annum or upwards, 47. 4s.; which duties are to be under the management of the commissioners of excise; and are to be raised, levied, paid, &c. by the same means and in the same ways by which former duties of excise of the same kind were or might be raised, levied, paid, &c.: And subject to all former conditions, rules, fines, penalties, forfeitures, &c. for securing the revenue of excise.

By stat. 48 Geo. 3. c. 143. § 2. "All and every person or persons, who shall sell beer or ale by retail, or who shall sell cider or perry, to be drank or consumed in his, her, or their house or premises, shall, before he, she, or they shall sell any beer or ale by retail, or any cider or perry, to be drank or consumed in his, her, or their house or premises, take out an excise license, authorising such person or persons to sell beer or ale by retail, and also cider and perry, to be drank or consumed in his, her, or their house or premises; which license shall be granted in manner herein after mentioned (that is to say) If any such license shall be taken out within the limits of the chief office of excise in London, the same shall be granted under the hands and seals of two or more of the commissioners of excise in England for the time being, or of such persons as they the said commissioners of excise or the major part of them for the time being shall from time to time appoint or employ for that purpose; if any such license shall be taken out in any part of England, not within the said limits, the same shall be granted under the respective hands and seals of the several collectors and supervisors of excise within their respective collections and districts." And the said commissioners of excise, &c. and also all such collectors and supervisors, are respectively authorised and required to grant such licenses to the persons who shall apply for the same, on the person or persons so applying, first paying for such license a duty of 21. 2s.

and

By § 3. All licenses so granted "shall remain and continue in force until and upon the tenth day of October next ensuing the time of granting thereof, and no longer."