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Q.B.] REG. v. PILKINGTON AND OTHERS (Justices) AND WALLACE; Ex parte WILLIAMS. [Q.B.

special session it shall be lawful for the justices then and there assembled, in the case and in the manner and for the time thereinafter directed, to licence such persons intending to keep inns theretofore kept by other persons being about to remove from such inns as they, the said justices, shall in the execution of the powers herein contained, and in the exercise of their discretion, deem fit and proper persons, under the provisions hereinafter enacted, to be licensed to sell excisable liquors by retail, to be drunk or consumed on the premises.

And by sect. 14:

If any person duly licensed under this Act shall (before the expiration of such licence) die, or shall by sickness or other infirmity rendered incapable of keeping an inn, or shall become bankrupt, or if any person so licensed, or the heirs, executors, administrators, or assigns of any person so licensed, shall remove from or yield up the possession of the house specified in the licence it shall be lawful for the justices assembled as aforesaid, at a special sessions holden under the authority of this Act for the division or place in which the house so kept, or having been kept, is situate, in any one of the above mentioned cases, and in such cases only to grant to the heirs, executors, or administrators of the persons so dying, or to the assigns of such person becoming incapable of keeping an inn, or to the assignee or assignees of such bankrupt, or to any new tenant or occupier of any house having so become unoccupied, or to any person to whom such heirs, executors, administrators, or assigns, shall by sale or otherwise have bona fide conveyed or otherwise made over his or their interest in the occupation and keeping of such house a licence to sell excisable liquors by retail, to be drunk or consumed in such house or the premises thereunto belonging; or to grant to the person whose house shall as aforesaid have been or shall be about to be pulled down or occupied for the improvement of the highways or for any other public purpose, or have become unfit for the reception of travellers, or for the other legal purposes of an inn, and who shall open and keep as an inn some other fit and convenient house, a licence to sell excisable liquors by retail, to be drunk or consumed therein.

Mattinson, Q.C. and T. Swift showed cause against the rules.

Avory and Montgomery in support.

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WILLS, J.-It is quite clear that the justices have given a decision which is not authorised by any Act of Parliament or any other authority, and which cannot be supported. There had been an application for a transfer of the certificate, which, by the operation of the several statutes, depended on sect. 4 of the Act of 1828 (9 Geo. 4, c. 61). That section provided that it should be lawful for the justices to license such persons intending to keep inns theretofore kept by other persons being about to remove from such inns as they should deem fit. In the present case the premises which were intended to be kept as an inn, for ten or twelve years before the application had been licensed in the name of Wallace, but they had not been occupied by him. Those premises had not been "theretofore kept by other persons being about to remove from such inns." Wallace had obtained the licence from the justices for the house, but somebody else had dwelt in it and used it as a draper's shop. That part of the section bad not therefore been complied with. Further, Wallace was not "about to remove from such inn," for in fact he has never resided there. The justices, therefore, have clearly acted without jurisdiction. In such a case I should have been inclined to think that a certiorari might be i

granted, but there has been a decision in the Divisional Court-namely, Reg. v. Sharman (78 L. T. Rep. 320)-that a certiorari is not the proper remedy. We are therefore bound to conform to that decision, and the certiorari must therefore be discharged, but without costs. Is it then a case for a writ of mandamus? There is a distinction between an erroneous decision of justices and a failure to hear and determine. The line was often very thin, and cases near the line on each side may be found; but the leading principle is this, that, if the justices have confined themselves to the sections and the points properly to be considered in relation thereto it does not matter how erroneously they determined, for their decision in such a case cannot be reviewed by a mandamus; but certainly when it appears by direct evidence that they have taken into consideration matters wholly outside what they should properly consider, the mandamus may go. In the case I have referred to a mandamus was held to lie because they had taken into consideration matters foreign to the points properly left to them. Such a thing in the present case is not directly stated in the affidavits, but, if the fact was demonstrated by what had taken place, the result is the same. Here the justices have granted a licence to a person intending to keep an inn, but not one belonging to a person "theretofore keeping it." They must therefore have entered upon some extraneous considerations. The rule for a mandamus must be made absolute.

KENNEDY, J.-It appears on the face of the grant of transfer that it purports to be granted in pursuance of the Alehouse Act 1828 and the Acts amending the same, and it grants to John Webb "the licence now held by Joseph Wallace, a beerhouse keeper." It is clear that Wallace does not come within sect. 4 of the Act of 1828, for by that section the grant of the licence was to be regulated" in the manner hereinafter directed." One is therefore referred to the provisions of sect. 14 of the same Act. That section is the explanation of the fourth. Sect. 14 gives the cases in which a grant may be made. It provides if any person duly licensed shall "remove from or yield up the possession of the house." Wallace cannot be said to have removed from or yielded up possession of the house. It is quite inexplic able on what grounds the justices have granted the transfer. Really the justices have acted in a case in which they had no jurisdiction. A certiorari has been held not to be applicable, but as to a mandamus, it seems from the cases that the courts have been rather more liberal in granting such writs in licensing cases than in several others. I am of opinion that the justices have not heard and determined according to law, and so, although the rules for the certiorari must be discharged, that for the mandamus must be made absolute.

Rules for certiorari discharged.
mandamus absolute.

Rule for

Solicitors for the objector, Lloyd-George, Roberts, and Co., for H. Lewis and Davies, Liverpool; for the respondents, J. Hands, for Edwin Berry, Liverpool.

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Friday, April 29, 1898.

(Before WILLS and KENNEDY, JJ.) PETCHEY (app.) v. TAYLOR (resp.). (a) Adulteration of food-" Skimmed" milk-" Separated” milk—Disclosure of injurious alteration -Sale of Food and Drugs Act 1875 (38 & 39 Vict. c. 63), s. 9.

Sect. 9 of the Sale of Food and Drugs Act 1875 enacts that "No person shall, with intent that the same may be sold in its altered state, without notice abstract from an article of food any part of it so as to affect injuriously its quality, substance, or nature, and no person shall sell any article so altered without making disclosure of the alteration under a penalty in each case not exceeding twenty pounds."

Held, that the question whether or not the alteration has been sufficiently disclosed is a question of fact.

Milk from which 97 per cent. of the fat had been abstracted was sold as skimmed milk. The magistrate held, on the evidence, that this was not a sufficient disclosure under sect. 9. Held, that there was no appeal from his decision. Jones v. Davies (69 L. T. Rep. 492) and Platt v. Tyler (58 J. P. 91) commented on and explained.

CASE stated by R. H. B. Marsham, Esq., a metropolitan magistrate.

The appellant was summoned to answer an information laid by the respondent that the appellant had, on the 3rd Nov. 1897, at 29, Commercialroad, S.W., unlawfully sold to the prejudice of the respondent a certain article of food, to wit, condensed milk, which had 97 per cent. of original fat extracted, so as to affect injuriously its quality, substance, and nature without making disclosure of the said alteration contrary to the provisions of sect. 9 of the Sale of Food and Drugs Act 1875 (33 & 39 Vict. c. 63.)

Sect. 9. No person shall, with intent that the same may be sold in its altered state, without notice abstract from an article of food any part of it so as to affect injuriously its quality, substance, or nature, and no person shall sell any article so altered without making disclosure of the alteration under a penalty in each case not exceeding twenty pounds.

The facts as proved at the hearing before the learned magistrate were as follows:

[Q.B. DIV.

condensed milk having no fat) and 3 per cent. of sweetened condensed milk of genuine composition. The said sample had the composition of a genuine sweetened condensed milk from which 97 per cent. of original fat had been abstracted. Observations: The said sample consisted of condensed sweetened separated milk."

The cream or fat had been abstracted from the milk by means of a machine called a separator, and not by any process of skimming by hand or otherwise.

"Separated milk" is the term used to designate milk from which the fat has been abstracted

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by means of a separator, and by the use of a separator practically the whole fat is abstracted. Skimmed milk" is the term used to designate milk from which a portion only of the fat has been abstracted by the process of skimming the surface of the milk, and the greatest amount of fat that can be abstracted from milk by such process being constantly repeated until the milk turns bad is about two-thirds, or 63 per cent.

Separated milk as a diet would be highly injurious to the health of a child, because it contained no fat, and the entire removal of such fat had thrown out the balance of the constituents of the milk as food.

The tin in question when full would weigh about fourteen ounces, and, if full of cream milk, or milk from which none of the fat had been abstracted, would cost 5d. or 6d.

No evidence was given for the appellant, but it was contended on his behalf that no offence had been committed, inasmuch as proper and sufficient notice of the alteration had been given by the label attached to the tin, and that the case was concluded by the decisions of the judges of the High Court in Jones v. Davies (69 L. T. Rep. 492) and Platt v. Tyler and Wright v. Tyler (59 J. P. 91) that the definition of skim milk, or skimmed milk, was milk from which the cream had been taken, and that the action of the separator was merely the development of the process of skimming; and that the word "separated" which the respondent suggested ought to be used, conveyed no meaning, while the word "skimmed" was well understood by the class of people who were in the habit of purchasing cheap brands of condensed milk.

On the part of the respondent it was contended that, inasmuch as 97 per cent. of the cream or fat had been abstracted from the said milk, and its

On 3rd Nov. 1897 one Curtis, in the employ-quality, substance, or nature had been thereby ment of the Vestry of St. George, Hanover-square, acting on the instructions and on behalf of the respondent, an inspector of the vestry, under the Sale of Food and Drugs Act 1875, purchased at the appellant's shop, for the sum of 24d., a tin of condensed milk, known as the "Cup Brand." No statement was made by the vendor with reference to the tin or its contents; but on the tin was a label having printed thereon in red letters "This tin contains skimmed milk."

The respondent having duly complied with the requirements of the Act, submitted part of the contents of the tin to the public analyst of the vestry.

The public analyst gave a certificate to the effect that having analysed the sample submitted to him, he found it consisted of "97 per cent of sweetened condensed milk devoid of fat (sweetened (4) Reported by J. ANDREW STRAHAN, Esq., Barrister-at-Law.

injuriously affected, the appellant was liable for selling the same if he did so without making disclosure of the alteration; and that the said cream or fat having been abstracted from the milk by means of a separator and to an extent beyond what was possible by the process of skimming whether by hand or otherwise, the same was not in fact, and ought not to be described as "skimmed milk," but was in fact and ought to be described as "separated milk"; and that the printed statement on the label (the only suggested disclosure of the alteration) did not therefore make disclosure of the alteration within the meaning of sect. 9 of the said Act.

It was further contended that the question was in no way governed by the cases cited and relied on by the appellant, the attention of the court not having been there directed to such question, and no decision having been given thereon.

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The learned magistrate being of opinion that the cases cited did not conclude the matter, found on the facts that the 97 per cent. of fat had been abstracted from the milk by a separator and not by skimming; that this abstraction altered injuriously the quality, substance, or nature of the milk; and that such alteration was not properly designated or described by the words "skimmed milk" on the label; and that milk treated by a separator was well understood and properly described by the words "separated milk." He convicted the appellant accordingly.

George Elliot for the appellant.-This case is concluded by authority. In Jones v. Davies (sup.) the facts were precisely the same as the facts in this case, save that 93 instead of 97 per. cent. of the fat was abstracted; but the court nevertheless held that such milk was properly described as skimmed milk. The principle on which the court then proceeded seems to be this: The attention of the purchaser must be drawn to the circumstance that the milk has gone through a process by which the fat is more or less abstracted from it. If this is done it does not matter how much was abstracted or by what process it was abstracted. Describing milk as skimmed is the most obvious way of drawing attention to this fact. It is suggested that the milk should be called not skimmed but separated milk; but, while everybody knows roughly what skimmed milk means, very few know what separated milk means, and of the few who do know only the experts are aware that it is possible to abstract by a separator 97 per cent. of cream, while not more than 63 per cent. can be abstracted by skimming.

Courthope Munroe, for the respondent, was not called upon.

WILLS, J.-This is purely a question of fact. In Jones v. Davies no evidence was produced that the milk was not properly described as skimmed milk. As a matter of fact it was there described in the analyst's certificate as skimmed milk. Here such evidence was produced, and further evidence was given, that there is a great difference in the effect of skimming and separating, as far as the amount of fat left in the milk is concerned. We have it, then, that this milk has been sold as skimmed milk, when, as a matter of fact, it has gone through a process which affects it injuriously to a far greater extent than skimming can. name skimmed milk is all the disclosure of this process which is given. I agree with the magistrate on the facts he has found that this is no disclosure at all. It does not indicate the alteration. The appeal must be dismissed.

The

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[Q.B. DIV. Licensing Act 1872 for refusing to quit licensed premises, if he is not drunken, violent, quarrelsome, or disorderly, although he may have been requested by the landlord to leave.

CASE STATED.

The respondent was summoned by the appellant under sect. 18 of the Licensing Act 1872 for refusing to quit licensed premises under the following circumstances:

The respondent on the evening of the 24th Dec. 1897 in the company of two other persons entered the Three Crowns inn, situate in the High-street, Cowes, which is a fully licensed house kept by and in the name of the appellant. Immediately on his so entering the respondent was ordered by the appellant to quit such premises. The respondent replied, "What for," and the appellant answered, "Your conduct before." The respondent refused to leave, and subsequently made use of bad language. The respondent was neither drunken, quarrelsome, nor disorderly at the time he entered the house nor when ordered to leave the same.

It was contended by the appellant that it was unnecessary to prove that the respondent was either drunken, quarrelsome, or disorderly previously to his ordering him to quit the premises, and the fact that he objected to the respondent's presence in his house on account of previously disorderly conduct and annoyance to him and his customers justified him in so ordering him to quit.

The magistrates, however, being of opinion that though a licensed person like the appellant may refuse to supply he cannot take proceedings under the section against anyone unless he first proves that such person was either drunken, violent, quarrelsome, or disorderly prior to or at the time he was ordered to quit, and that whatever bad language was subsequently uttered by the respondent was occasioned by the behaviour of the appellant, gave their determination against the appellant.

The question for the opinion of the court is whether, under the above circumstances, the information was legally and properly dismissed.

Kershaw (J. P. Grain) with him) for the appellant.

The respondent did not appear.

case.

WILLS, J.-—I think it is quite clear that the magistrates came to a correct conclusion in this The section was not made in aid of persons who have a common law right to turn another out of their premises. The section was intended to apply to licensed premises, and it says, " Any licensed person may turn out of the premises in respect of which his licence is granted any person who is drunken, violent, quarrelsome, or disorderly." Certainly a licensed person might have the common law right to turn any one off his premises, but he could only do so under this section where the person was either drunken, violent, quarrelsome, or disorderly. When asked to go the respondent was neither of these, and in such a case the act was not inteded to apply. I am quite clear that it is necessary to prove the person was drunk, violent, quarrelsome, or disorderly before being asked to quit.

KENNEDY, J.-I am of the same opinion. There can be only one answer to the question

Q.B. Div.]

BUTTON (app.) v. TOTTENHAM URBAN DISTRICT COUNCIL (resps.).

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B., the owner of certain houses, constructed a series of cesspools for their drainage on his own land. He then constructed a conduit, which conveyed the overflow therefrom to a larger cesspool. He was summoned for constructing these cesspools so as to have an outlet into a sewer, viz., the conduit and the large cesspool, contrary to the local byelaw.

The magistrates were of opinion that the conduit, being used for the drainage of several dwellinghouses occupied by different persons, was a sewer, and that an offence had been committed. Held, that the magistrates were wrong, and that the appellant had not constructed these cesspools contrary to the bye-law.

SPECIAL CASE STATED.

The defendant was summoned that he did offend against a certain bye-law with respect to the draining of buildings, in that, being a person constructing a certain cesspool, he did construct such cesspool so that it then had, by drain or otherwise, an outlet into or means of communication with a certain sewer there.

The facts proved were as follows:

The premises Nos. 91, 93, 95, 97, and 99 Bailey'slane were the property of the appellant, and are situated within the urban district of Tottenham, and were built by the appellant, with some thirty other houses, on the north side of Bailey's-lane.

At the time that the houses on the north side of Bailey's-lane were built there was no sewer available for the drainage thereof within 100 feet of the premises, and the appellant constructed, on land belonging to him at the rear of the houses, a series of cesspools for the reception of the drainage therefrom.

In particular the particular house drains from Nos. 91, 93, and 95 discharged separately into one of such cesspools, and those from Nos. 97 and 99 discharged separately into another of those cesspools.

Similar provision was made for the drainage of the rest of the appellant's houses on the north side of Bailey's-lane.

At some time between the 7th and 21st Sept. 1897 the appellant, in order to diminish the inconvenience and annoyance incident to the emptying of so many separate cesspools, laid down wholly through his own land a conduit of stoneware pipes which passed close to the several cesspools and was adapted to receive and conduct the overflow therefrom to a larger cesspool and distant about 500 feet from the nearest house. He gave notice of the intended work to the respondent council who disapproved thereof. The appellant, (a) Reported by W. DE B. HERBERT, Esq., Barrister-at-Law. MAG. CAS.-VOL. XVIII.

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nevertheless, proceeded with the work, and introduced outlets and overflow pipes from the several first constructed cesspools into the said conduit, which in that manner received and discharged into the larger cesspool the drainage from the several houses not within the same curtilage.

The appellant contended that the whole of the cesspools and conduit together formed one cesspool or system of cesspools, and that the conduit was not a sewer within the definition of a sewer in sect. 4 of the Public Health Act 1875.

The appellant further contended that the conduit, even if a sewer within the definition of a sewer in sect. 4 of the Act, did not vest in the respondent council on the ground that it was included in the sewers excepted by sect. 13 of the Act from the control of the local authority being (1) constructed by the appellant for his own profit, (2) used for the purpose of irrigating land, and the bye-law in question was unreasonable and ultra vires if it related to any sewers other than those vested in the local authority, and further that in any event the bye-law was unreasonable, ultra vires, and against public policy on sanitary grounds, it being preferable to empty cesspools as seldom as necessary and at as great a distance from dwelling-houses as possible; and it being admitted that any nuisance arising from the deposit of sewage is palliated if the sewage be

taken to a distance from houses.

The magistrates held that the conduit being used for the draining of several dwelling-houses occupied by different persons was a sewer within the meaning of the Public Health Act 1875, and that by connecting therewith the cesspools, to which the informations related, by means of the overflow pipes, the appellant had constructed each of such cesspools so as to have an outlet or means of communication with a sewer contrary to the 89th bye-law, convicted the appellant and fined him 40s. in respect of each of the two offences and costs.

The bye-law, No. 89 was as follows:

Every person who shall construct a cesspool in connection with a building, shall construct such cesspool in such a manner and in such a position as to afford a ready means of access to such cesspool for the purpose of cleansing such cesspool, and of removing the contents thereof, and in such a manner and in such a position as to admit of the contents of such cesspool being removed therefrom and from the premises to which such cesspool may belong without being carried through any dwelling-house or public building or any building in which any person may be or may be intended to be employed in any manufacture, trade, or business. He shall not in any case construct such cesspool so that it shall have by drain or otherwise any outlet into a means of communication with any

sewer.

Edwardes Jones (Avory with him) for the appellant.

A. F. Jenkins (R. C. Glen with him) for the respondents.

WILLS, J.-I cannot help thinking that the peculiar facts in Meader v. The West Cowes Local Board (67 L. T. Rep. 454; (1892) 3 Ch. 18) brought about that decision, but whatever we may think of it, there it is. I cannot see a distinction between the principle of that case and this. In the result we are bound by that decision, and the conviction must be quashed.

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KENNEDY, J.-I entirely agree. I cannot distinguish that case from the law we have to apply here. Appeal allowed.

Solicitors for the appellant, Davidson and Morris.

Solicitor for the respondents, Shelton.

Thursday, May 12, 1898.

(Before WILLS and KENNEDY, JJ.) KINNIS (app.) v. GRAVES (resp.). (a) Res judicata-Building beyond building lineInformation-Bench equally divided-Dismissal -Second information-Conviction.

A. was summoned for an offence under sect. 3 of the Public Health (Buildings in Streets) Act 1888 in building a house, the front wall of which projected beyond the building line. At the hearing the justices were equally divided in opinion, and on the advice of their clerk the chairman dismissed the information. A second information was subsequently laid in precisely the same terms, save that the period for which penalties were claimed was different from that in the first. The justices convicted.

Held, that the dismissal of the first information was a good dismissal, although the justices were equally divided.

Held further, that such dismissal decided that the erection of the house was not an offence under sect. 3, and that the continuing of that erection could therefore not be an offence.

CASE stated by the justices of Sussex.

On the 5th March 1897 the respondent laid an information against the appellant, of which the following is a copy:

In the County of Sussex Petty Sessional Division of Hastings. The 5th day of March 1897. The information of Matthew Dodgson Graves, of Station-road, in the parish of Bexhill, in the said division and county, surveyor to the Urban District Council of Bexhill, who upon oath states that John Kinnis, of King's-road, in the parish of St. Mary Magdalen, Hastings, in the said division and county, Dyer, on the 30th day of December 1896, at the parish of Bexhill, in the division and county aforesaid within the urban district of Bexhill, unlawfully and without the written consent of the urban authority of the said district did erect and bring forward a certain house in a certain street in the said district called St. Leonards-road beyond the front main wall of the house a building on either side thereof in the same street, and did continue the said offence for twenty-eight days after he had received a written notice in that behalf to set back the said building in accordance with the proper building line of the said street, contrary to sect. 3 of the Public Health (Buildings in Streets) Act 1888, the statute in such case made and provided. M. Dodgson Graves. Taken before me, E. Edmon Hurst, justice of the Peace for the county aforesaid.

After the said information was laid the appellants continued the erection of the said house as originally planned.

The said information was heard on the 13th March 1897 before certain justices of the said division, who being equally divided in opinion, and being of opinion that there could be no conviction, except by a majority, dismissed the said

(a) Reported by J. ANDREW STRAHAN, Esq., Barrister-at-Law.

[Q.B. DIV.

information on that ground with costs to be paid by the respondent, and expressed their willing. ness on the application of the present respondent to state a case for the opinion of the court. The said information was indorsed Dismissed with costs. Bench equally divided. Case granted."

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The case was not applied for within the prescribed time, and the respondent then applied for a rehearing of the said information which application was granted, but not proceeded with and the respondent subsequently on the 29th April 1897 laid another information for a continuing penalty.

This second information was in terms the same as the information of the 5th March, save that the offence alleged was that the appellant on the 6th March 1897 did unlawfully and without the written consent of the urban authority erect and bring forward a certain house, &c., and " did continue the said offence for fifty days on and after the 6th March, and after he had received a written notice in that behalf to set back the said building," &c.

On the 19th Nov. 1897 this second information was heard, and the justices convicted the appellant on the information, and fined him forty shillings with costs.

There was only one notice to set back given to the appellant by the respondent, and it was proved at the hearing of the first information.

At the hearing of the second information it was contended for the appellant that the decision upon the first information was a bar to any conviction upon the second information, inasmuch as the appellant had in fact been acquitted on the first information, and the matters in respect of which he was charged on the second information were a continuance of that which on the hearing of the first information had been held to be no offence.

On behalf of the respondent it was contended that the alleged offences as proved were different, that the appellant had not been acquitted on the first information, and that there had been no effective decision in the hearing of it by reason of the justices being equally divided in opinion.

The question of law for the opinion of the court was whether the appellant had committed an offence within the meaning of sect. 3 of the Public Health (Buildings in Streets) Act 1888.

A. J. Ashton for the appellant.-When at the hearing of a summons the justices are equally divided whether they should convict or acquit, there should be an acquittal. That was the view taken by the court in

Reg. v. Ashplant, 22 J. P. 474.

The acquittal in such case is an effective decision, and it is one which the court will not go behind. The law is stated by Lord Herschell, C. in

Ex parte Evans, 70 L. T. Rep. 45; (1894) A. C. 16, at p. 20;

Rex v. Justices of Monmouthshire, 4 B. & C. 844. In the second place, assuming the acquittal was right, the erecting of this house was decided by it to be no offence. It cannot then be an offence to continue doing that which it has been decided it is no offence to do. That is what was done when the appellant was convicted on the second summons which charged the same offence as the first, and only differed as to the period during which the offence was alleged to be continued.

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