PAYNE. to keep such booth for the public performance of stage plays FREDERICKS without a license: Davys v. Douglas (1); it was not an offence to permit a stage play to be acted therein, and that "place," in section 11, means such a "house or place of public resort " as requires a license under section 2. I was of opinion that the said booth was a "place place" within the meaning of section 11, and therefore convicted the appellant of the offence charged in the information, and adjudged him to forfeit and pay the sum of 31., with 2s. costs. The ground of my decision was that the word "place," in section 11 is used generally, without any such restriction as was contended for on the part of the appellant. That the only exception was that contained in section 23 of the Act, namely, that of "a theatrical representation in any booth or show which, by the justices of the peace, or other persons having authority in that behalf, shall be allowed in any lawful fair," which this was not. The question of law submitted is, whether or not the said booth before described is a "place" within the meaning of the 6 & 7 Vict. c. 68, s. 11. If the Court shall answer this question in the affirmative, the said conviction to be affirmed; if in the negative, the conviction to be quashed. We are all of opinion that the decision of the magistrate may be supported. The case is brought within the express words of the 11th section of the Act. (His Lordship read the section.) This is neither a patent theatre, nor duly licensed as a theatre. A minute examination of the other sections is unnecessary, since the words of this section are plain and free from doubt. BRAMWELL, B.: I am of the same opinion. The words of the 11th section, if they are to be read in their literal sense, certainly include this case. The appellant has acted for hire a part in a stage play in a place" which is not a patent theatre, nor duly licensed as a theatre. It is contended, however, that the word "place" means a place which requires a license." The introduction of words into an Act of Parliament is open to serious objections, and should only be resorted to for the most cogent reasons, so as to avoid a repugnancy of construction, or something which is opposed to good sense. But here it would be opposed to good sense to introduce any words, since it would interfere with the (1) 118 R. R. 377 (4 H. & N. 180). [586] [587] [ 589 ] x. PAYNE. [ *590 ] FREDERICKS very object which the Legislature had in view, viz. to prohibit unlicensed play acting. By the 2nd section it is provided, that no person shall have or keep any house or other place of public resort, for the public performance of stage plays," without letters patent or a license; and a penalty is imposed upon any one who shall keep open any such house or place for that purpose. That is an express prohibition against keeping such a place, and, in addition, a penalty is imposed on the person who keeps it. But that alone would not be sufficient. If the statute had stopped there, any person might act at a place not so kept, without becoming liable to any penalty. Thus, a band of strolling players, acting in barns, and similar places not kept for the purpose, might cause the mischief which it was the object of the Legislature to provide against. But the 11th section prohibits the acting for hire in all places, except those that are licensed, whether they be kept for the public performance of stage plays or not, and so forms a necessary complement to the 2nd section. This view is also confirmed by the proviso in the 23rd section. (His Lordship read the proviso.) It seems a legitimate inference that booths and shows in a fair, if not excepted by the terms of that proviso, are within the scope of the 11th section. Now, the only reason which is urged for introducing any words is, that if the 11th section applies to all persons who act for hire in any place that is not licensed, then, if a private gentleman were to engage an actor to take part in a play at his own house, that actor would be liable. That result is, I think, attended with less inconvenience than would arise, as I have pointed out, from the proposed construction. But it is by no means certain that it would be so. The 16th section points out in what cases an actor shall be deemed to be acting for hire, and would seem to show that the hire, which the Act contemplates as a necessary constituent of the offence, must be a hire received from the spectators. On that point, however, it is unnecessary to express any opinion, since, for the reasons I have given, it seems to me that this conviction should be affirmed. [ *591] CHANNELL, B.: I also think that this conviction ought to be affirmed. The case expressly finds that the appellant caused a stage play to be acted for hire. On that point, therefore, no question arises. The 23rd section has been referred to; but as the facts of this case do not bring it *within the proviso contained in that section, it can only be of use in assisting us to ascertain the true meaning of the 11th section. Unless, therefore, the word "place" in the PAYNE. 11th section must, by reference to the 2nd and 23rd sections, of FREDERICKS necessity be read with some addition, the appellant was rightly convicted. I am of opinion that there is no such necessity. There is nothing in either of these sections to require it; nor is the 2nd section, when rightly interpreted, in any way inconsistent with the 11th section. I therefore agree with the other members of the COURT that our judgment should be for the respondent. Conviction affirmed. BRAITHWAITE v. MARRIOTT. (1 H. & C. 591-593; S. C. 32 L. J. Ex. 24; 9 Jur. N. S. 26; 7 L. T. N. S. 363; 11 W. R. 93.) [Obsolete decision as to sheriff's fees.] 1862. Nor. 25. HYDE v. GRAHAM. (1 H. & C. 593-601; S. C. 32 L. J. Ex. 27; 8 Jur. N. S. 1229; 11 W. R. 119; 7 L. T. N. S. 563.) To trespass for entering the plaintiff's close and breaking open a gate and lock with which it was fastened, the defendant pleaded (as a defence on equitable grounds), that a dispute had arisen between the plaintiff and defendant and certain other persons as to whether there was a public highway over the plaintiff's land; and thereupon, in order that the defendant and the plaintiff's solicitor might arrange to come to a definite understanding as to the course to be pursued in deciding or trying the question, and in consideration that the defendant and the other persons, at the request of the plaintiff, then signed the same, it was, by a memorandum in writing, then signed by the plaintiff, his solicitor, the defendant, and the said other persons, agreed that, without prejudice on either side to the question of right to the said way, it should remain open and unobstructed, for the passage of the defendant and the said other persons, until the plaintiff's solicitor and the defendant should come to a definite understanding as to the course to be pursued in deciding or trying the question then in dispute. The plea then stated that the alleged trespasses were committed before any understanding had been come to, and were the use of the way by the defendant; and, because the gate was wrongfully and contrary to the agreement placed across the way and locked, the defendant broke it open Held, that the plea was bad both as an equitable and legal defence. A plea pleaded as an equitable defence may be sustained as a plea at law if it discloses a good legal defence. DECLARATION. For that heretofore, to wit, on, &c., the defendant broke and entered certain land of the plaintiff, called "The Hyde End Estate," situate, &c., and then broke open a certain gate of the plaintiff then standing and being in and upon his said land; and then broke open, damaged and spoilt a certain lock of the plaintiff wherewith the said gate was then locked and fastened, and then on divers times on the same day, with a certain carriage and horses, drove over and across the said land of the plaintiff. Plea, for defence on equitable grounds. That, before the R.R.-VOL. CXXX. 43 1862. Nov. 19. [593] HYDE t. GRAHAM. [ *594 ] [*595] alleged trespasses in the declaration mentioned, or any of them, court of equity, to have the plaintiff restrained from maintaining or prosecuting the said action against the defendant in respect of the matters in the declaration mentioned. Demurrer and joinder therein. Gray, in support of the demurrer: The plea discloses no defence either at law or in equity. The agreement is without consideration, and, not being under seal, it cannot confer any interest in the land. The alleged consideration is the signing the agreement, but it is not sufficient to support it. The COURT then called on Dowdeswell (Secker with him), for the defendant: The plea affords a good answer both at law and in equity. Though pleaded by way of equitable defence, if it discloses an answer on legal grounds, the defendant will be entitled *to judgment. First, the plea is good at law, for the facts stated in it would be evidence in support of a plea of leave and licence. The agreement amounts to a contract on the part of the plaintiff that, during a certain interval, the way shall remain open and unobstructed for the passage of the defendant. Therefore he was justified in breaking open the gate in order to use the way. (POLLOCK, C. B.: Not until after he had demanded the key. But if the licence has been revoked, what right is left?) The plaintiff cannot avail himself of his breach of contract to sue the defendant as a trespasser. In Burridge v. Nicholetts (1) it was held that a person might break open a lock in order to get possession of his own book. (CHANNELL, B.: There the question arose under the County Court Act, 9 & 10 Vict. c. 95.) This is, in effect, an agreement that, if the plaintiff obstructs * |