case now stated for us will not touch any other case. It is not necessary to determine whether proof of the handwriting of a deceased attesting witness to a lost instrument is indispensable; for in this case the very evidence raising the objection also removes it. The Sessions on the evidence before them find that Buchanan was the attesting witness; they have therefore found as a fact the identity of the man Buchanan, who is shewn to be dead, and the attesting witness Buchanan. The proof of handwriting can be required for no object except to establish that identity between the dead man and the witness, which in this case is found as a fact. The respondents went further, and proved the handwriting of the parties; but without that, on this finding, that the deceased man was the attesting witness to the deed, there was enough to admit secondary evidence of its contents. ERLE J. I am of the same opinion, and on the same reasons as my brother Wightman, which in my opinion go the full length of establishing the principle, that in no case whatever where the instrument is lost, and the attesting witness is dead, can it be necessary to prove his handwriting. For, if the evidence establishes that there is a subscribing witness, and that he is the same person who is proved to be dead, the case is brought within the rule laid down by my brother Wightman: if the evidence does not establish the identity between the subscribing witness and the dead man, it is a case of an attesting witness unknown, and falls within a different rule (a). And on general grounds I think it would be (a) See Keeling v. Ball, Pea. Ev. App. xxxii. 1353. The QUEEN V. Inhabitants of ST. GILES, CAMBERWELL. 1853. V. ST. GILES, injurious if we were to decide that, when there was eviThe QUEEN dence of the contents of a lost instrument, and that it Inhabitants of was executed by the parties, the evidence was to be CAMBERWELL rejected, because there was no proof of the handwriting of a deceased subscribing witness. Such a decision would be contrary to the tendency of all modern decisions, which has been to admit evidence. CROMPTON J. I wish to be understood to give my judgment only on the particular circumstances of this case. It may very well happen, in other cases, that the facts may be such as to shew that the party seeking to prove the destroyed deed might have it in his power to produce evidence of who the attesting witness was, and to prove his handwriting if he is dead; and, in a case where he took no steps to do this, I think the decision might be different from the present. Therefore, without giving any opinion on the general rule, I confine my decision to saying the evidence was admissible in this particular case, and under these special circumstances. I agree with my brother Erle that justice and common sense are in favour of admitting such evidence. Order of Sessions quashed. The QUEEN against WILLIAM WAGHORN. Justices for a petty sessional division of the county of K. convicted W. Acts (11 G. 4 under the Beer 64, & 1 W. 4. c. 64., 4 & 5 W. 4. c. 85., HORN, in Michaelmas term 1852, obtained a rule to quash a conviction brought up into this Court by certiorari. The conviction was by five justices of Kent, in petty sessions for the Upper South Division of the Lathe of Aylesford in that county, of William Waghorn for, at the Borough of Maidstone, unlawfully making use of, to the supervisor of Excise, a certificate in writing signed by one of the overseers of the parish of Nettlestead within that petty sessional division, relative to the annual (which is out of the general value at which certain premises occupied by the defend- jurisdiction of ant in that parish were rated, for the purpose of obtain- the justices of ing a licence for himself to retail beer on the premises, by which he did obtain the licence, knowing a matter in the certificate to be false. The ground of the motion was that the certificate was used at Maidstone, which is not within the jurisdiction of the justices of Kent; and that the justices of the Borough of Maidstone had the jurisdiction to adjudicate on the offence. In Hilary term last (January 19th (a)), Archbold shewed cause and Horn was heard in support of his rule. The question depended on the construction of the following enactments. and 3 & 4 Vict. c. 61.) for knowingly using at the borough of M. K.) a false certificate relative to the rating of a house, within the petty sessional division, occupied by the defendant, for the purpose himself to (Coleridge J. dissentiente) that the jurisdiction to adjudicate on this offence was not given, by the Beer Acts, to the justices within whose jurisdiction the house to which the licence was intended to be applied was, but remained with the justices within whose jurisdiction the offence was committed. Conviction quashed. (a) Before Lord Campbell C. J., Coleridge, Wightman and Crompton Is. 1853. V. WAGHORN. Stat. 11 G. 4 & 1 W. 4. c. 64. provides for the The QUEEN granting of licenses to retail beer. Sect. 15 enacts: "that all penalties under this Act, save and except the penalty hereinbefore mentioned for selling beer by any person not duly licensed, shall and may be recovered upon the information of any person whomsoever before two justices acting in petty sessions; and that every such penalty shall be prosecuted and proceeded for within three calendar months next after the commission of the offence in respect of which such penalty shall be incurred; and every person licensed under this Act who shall be convicted, before two justices so acting in and for the division or place in which shall be situate the house kept or theretofore kept by such person, of any offence against the tenor of the licence to him granted under this Act, or of any offence for which any penalty is imposed by this Act, shall, unless proof be adduced to the satisfaction of such justices that such person had been theretofore convicted before two justices within the space of twelve calendar months next preceding of some offence against the tenor of his licence or against this Act, be adjudged by such justices to be guilty of a first offence against the provisions of this Act, and to forfeit and pay any penalty by this Act imposed for such offence, or if no specific penalty be imposed for such offence, then any sum not exceeding five pounds, together with the costs of the conviction; and if proof shall be adduced to the satisfaction of such justices that such person had been previously convicted before two justices within the space of twelve calendar months next preceding of one such offence only, such person shall be adjudged by such justices to be guilty of a second offence against the pro visions of this Act, and to forfeit and pay any penalty 1853. v. WAGHORN. by this Act imposed for such offence, or if no specific The QUEEN penalty be so imposed, then any sum not exceeding ten pounds, together with the costs of the conviction; and if proof shall be adduced to the satisfaction of such justices that such person had been previously convicted before two justices within the space of the eighteen calendar months next preceding of two such separate offences, and if proof shall be adduced to the satisfaction of the justices that such person so charged is guilty of the offence charged against him, such person shall be adjudged to be guilty of a third offence against the provisions of this Act, and to forfeit and pay any penalty imposed by this Act in respect of such offence, or if no specific penalty shall be imposed, then to forfeit and pay the sum of fifty pounds, together with the costs of the conviction." Stat. 4 & 5 W. 4. c. 85. recites stat. 11 G. 4 & 1 W. 4. c. 64.; and, by sect. 2, requires that all persons applying for a licence shall deposit with the Commissioners of Excise a certificate of good character. Sect. 8 enacts that any person certifying any matter as true, knowing it to be false, or making use of a certificate, knowing any matter therein to be false, "shall, on conviction of such offence before two or more justices of the peace, forfeit and pay the sum of twenty pounds." Sect. 11 enacts that "all the powers, regulations, proceedings, forms, penalties, forfeitures, and provisions contained in the said recited Act with reference to persons licenced under the said Act, and to the offences committed by such persons against the said Act, or against the tenor of any licence granted under the said Act, and also with reference to the sureties of such persons, and to persons doing the things thereby prohibited without the licence required by the said Act, |