66

c. 42. "The above depositions of," naming the several witnesses, and amongst them the deceased, were taken and sworn before us at, &c.," according to the form in the schedule.

I allowed the deposition to be read, subject to the opinion of this Court on its admissibility.

It was objected, after the jury were sworn and charged, that the indictment was bad for uncertainty, as it alleged in the alternative that the prisoner "had sold, lent, or deposited it." I overruled the objection, but as I meant to reserve the other point, I also reserved this for the opinion of the Court (see 1 C. & K. 243).

If the deposition ought not to have been received, or if the indictment is bad, the conviction is to be quashed.

Greenhow, for the prisoner.-The depositions ought not to have been admitted in evidence, on the ground that the separate deposition of each witness was not signed by the justice before whom they were taken, at the end of each such deposition respectively. He referred to Regina v. Osborne (3), Regina v. Lee (4), Regina v. Richards (5), Regina v. France (6), Regina v. Johnson (7), and Regina v. Young (8).

It is also objected that the indictment was bad, on the ground that the description of the offence being in the alternative was uncertain, and embarrassed the prisoner in his defence. Even the allegation charges the offence in the disjunctive, and is therefore bad (9). Even if the allegation is surplusage, it must be accurately stated, or the indictment is bad.

[COCKBURN, C.J.-But here the surplusage was not matter touching the substance of, or ingredient in, the offence, but was in respect of something subsequent to the substance.]

COCKBURN, C.J.-I am of opinion that the other conviction must be affirmed, and that both objections fail. With respect to the admissibility of the depositions: in Regina v. Young (8), tried before Mr. Greaves, with whose decision Mr. J. Williams concurred, and in Regina v. Lee (4), the depositions were signed as here, and held admissible. In Regina v. Richards (5), tried before me, the same question presented itself, but my attention was then only called to the 17th section of the statute, and not to the schedule. Afterwards, upon Mr. Oke, the clerk to the Lord Mayor, calling my attention to the form and language of the schedule, and reading the two together, I thought that, inasmuch as the section of the statute left the matter in doubt by the omission of the word "respectively," which had been used in reference to the signatures of the witnesses, when it came to speak of the magistrate's signature, and the schedule makes the magistrate certify by his signature at the end of the depositions, that the "above depositions," in the plural number, were taken before him, it seemed to me to be plain that the legislature did not intend to exact from magistrates their signature to each deposition, but only to the depositions as a body. And I accordingly wrote to Mr. Oke to say that I did not intend on a future occasion to abide by the decision I had given in Regina v. Richards (5). And I still think, that it is sufficient for the depositions to be signed according to the form given in the schedule. In this case the depositions were signed in that manner, and I therefore think they were admissible. With respect to the second objection, I think that the words objected to were pure and simple surplusage. The offence charged in the indictment was that the prisoner made a false declaration that he had lost the pawnbroker's ticket, and the words objected to were a mere statement of evidence, and not part of the description of the offence, nor an essential ingredient in the offence, and therefore I think immaterial, and the objection made ought not to prevail.

BYLES, J.-I think these depositions purported to be signed by the justices before whom they purported to be taken, in the manner required by the act. The

different sheets appear to have been attached together at the time of the signature, and it can make no difference whether they were attached by a pin or in any other way, as to the continuity of the piece of paper. As to the second objection, it is necessary to state in the indictment what the declaration was, and that it was false, but it cannot be necessary to allege further, how the declarant had disposed of the ticket, for that is to ask the prosecutor to state what in all probability he cannot know.

KEATING, J., PIGOTT, B., and CLEASBY, concurred. Conviction affirmed.

[IN THE COURT OF QUEEN'S BENCH]. 1870. Jan. 27.

} Ex parte SHORT.

Wine and Beerhouse Act, 1869, 32 & 33 Vict. c. 27. s. 17-11 & 12 Vict. c. 40. 8. 2-Beerhouse-Second Offence-Refusing to admit Constable-Keeping House open during prohibited hours on Sunday.

In the month of August, 1869, and after the passing of the 32 & 33 Vict. c. 27, S., a beerhouse keeper, was convicted for keeping her house open for the sale of beer on Sunday, before half-past 12 o'clock in the day time. On the 6th October, 1869, she was convicted for refusing to admit a constable to her premises :-Held, that the justices had power, under s. 17 of 32 & 33 Vict. c. 27, to treat this as a second offence, and under 4 & 5 Will. 4. c. 85. s. 7, to order that S. should be disqualified from selling beer, &c., by retail, for the space of tow years.

This was an application for a rule nisi, calling on two justices of Cheshire to shew cause why a writ of certiorari should not issue to bring up a conviction made by them, on the 6th October last, against Margaret Short, a person licensed to sell beer, for refusing to admit a constable to her premises. The justices adjudged that she should be disqualified from selling beer, ale, &c., for two years. The conviction

did not shew any previous offence of the same kind, but it recited four other previous convictions for other offences, one of which was since the passing of "The Wine and Beerhouse Act, 1869" (32 & 33 Vict. e. 27), and was for keeping the house open for the sale of beer on Sunday, before halfpast twelve o'clock at noon, but the other three convictions were previous to the passing of the last mentioned Act. It appeared from the affidavits that she had never been previously convicted of the offence of refusing to admit a constable into her house, or of any of the offences enumerated in the first part of the 17th section of The Wine and Beerhouse Act, 1869, since the passing of that Act.

J. Paterson, in support of the application. The justices conceived that they had a right, under 4 & 5 Will. 4. c. 85. s. 7, to order that Margaret Short should be disqualified for two years, but this is not so (1). The conviction does not shew any first offence which could give them any such power, and it appears from the affidavits that there was none. But it will be said that by reason of the 17th section of The Wine and Beerhouse Act, 1869, the

keeping of the house open on Sunday

(1) Statute 4 & 5 Will. 4. c. 85. s. 7.

"That

it shall be lawful for all constables and officers of

police, and they are hereby authorised and empowered, to enter into all houses which are or shall be licensed to sell beer or spirituous liquors to be consumed upon the premises, when and so often as such constables and officers shall think proper; and if any person having such license as aforesaid, or any servant or other person in his employ or by his direction, shall refuse to admit, or shall not admit such constable or officer of police into such house or upon such premises, such person having such license, shall, for the first offence, forfeit and pay any sum not exceeding five pounds, together with the costs of the conviction, to be recovered within twenty days next after that on which such offence was committed, before one or more justices of the peace; and it shall be lawful for any two or more justices, before whom any such person shall be convicted of such offence for the second time, to adjudge (if they shall so think fit) that such offender shall be disqualified from selling beer, ale, porter, cyder, or perry, by retail, for the space of two years next after such conviction, or for such shorter space of time as they may think proper."

became a second offence; but that again is an error; for the keeping the house so open is not an offence against the tenor or conditions of a license granted to Margaret Short under any of the recited acts, or an offence for which a penalty is imposed by any of said recited acts (2).

[BLACKBURN, J.-Is not the keeping of the house open during the prohibited hours an offence against the tenor or conditions of the license granted under any of the recited Acts?]

No, it was an offence under 3 & 4 Vict. c. 61. s. 15, but that part of that Act is repealed by 11 & 12 Vict. c. 49. s. 2, and a new enactment is provided with reference to this subject under the 4th section.

[BLACKBURN, J.-But is it not equally an offence against the tenor of the license, though it may now be only punishable under 11 & 12 Vict. c. 49?]

No, it is now a substantive offence with a higher penalty, and with an alteration in the hours. See Regina v. Whiteley (3). The Wine and Beerhouse Act, 1869, recites several Beerhouse Acts, but not the 11 & 12 Vict. c. 49, under which the offence is punishable.

That was an offence which comes within both clauses of the 17th section of the Wine and Beerhouse Act, 1869, for although the mode of punishment may be supplied by the 11 & 12 Vict. c. 49, it is an offence against the tenor and effect of the license granted under the Beerhouse Acts. The 11 & 12 Vict. c. 49 was, no doubt, passed for the purpose of regulating the sale of beer, and other liquors on the Lord's Day, but the Beerhouse Acts had provided for the keeping the house open before halfpast 12 o'clock on Sundays, before the 11 & 12 Vict. c. 49 was passed. It is also an offence against the tenor of a license granted to her under 9 Geo. 4. & 1 Will. 4. c. 64; see the form of license in the schedule to that Act.

(He was then stopped.)

J. Paterson in support of the rule.-The conviction follows the words of the 11 & 12 Will. 4. c. 49, which is not one of the recited Acts.

G. Taylor shewed cause in the first instance. The justices had power to make the order complained of. It is true that there had not been a previous offence of refusing to admit a constable, but there had been one of keeping the house open within the prohibited hours on Sunday.

(2) 32 & 33 Vict. c. 27. s. 17.-In the following cases, that is to say,

1. Where any person is convicted of an offence against the tenor or conditions of a license granted to him under any of the said recited Acts, or of an offence for which a penalty is imposed by any of the said recited Acts;

2. Where any person is convicted of an offence against the tenor of a license granted to him under the said Act of the ninth year of the reign of King George the Fourth;

If any previous conviction or convictions, since the passing of this Act, for any of the said offences be proved against him, the offence of which he is last convicted shall be deemed to be a second or third offence, as the case may be provided that the said previous conviction or convictions did take place within the five years next preceding." (3) 3 Hurl. & N. 143.

17th section with the view of meeting such cases. The offence sufficiently comes within the description given in that section.

BLACKBURN, J.-The obvious meaning is, that if a conviction takes place after the commission of one of a certain class of offences since the passing of The Wine and Beerhouse Act, 1869, the offence of which the person is last convicted shall be deemed a second offence, with the consequences attached to the committing of a second offence.

MELLOR, J.—I am of the same opinion.
Rule discharged with costs.

Attorneys-R. M. & F. Lowe, agents for E. J. Kent, Liverpool, for the prosecution; Makinson & Carpenter, agents for Bretherton & Co., Birkenhead, for defendant.

By the Local Government Act, 1858 (21 & 22 Vict. c. 98), s. 55, provision is made for general district rates, and it is enacted that the occupier of land used only as a railway constructed under the powers of any Act of Parliament for public conveyance shall be assessed in respect of the same in the proportion of one-fourth part only of such net annual value thereof:-Held, that a line of railway which though actually worked and used under the provisions of different Acts of Parliament, was originally constructed by private agreement, without any parliamentary powers, is not rateable upon the reduced scale, but upon the full annual value.

Upon appeal by the North Eastern Railway Company to the General Quarter Sessions for the county of Durham, against an assessment for a general district rate, made on the 27th of December, 1867, by the Local Board for the district of Leadgate, under the powers of "The Local Government Act, 1858," the following facts were stated in the form of a special case for the opinion of the Court.

CASE.

1. In the year 1834, by deed of settlement, dated 3rd of February, 1834, a company called the Stanhope and Tyne Railroad Company, was established for the purpose of working certain limestone quarries, near Stanhope, in the county of Durham, and certain coal mines in the parish of Lanchester, in the same county, called the Pontop and Medomsley Collieries, and for the carriage of coals, limestone and other articles of merchandise, along a railway then in course of formation by the company, and called the Stanhope and Tyne Railroad.

2. The line of the railway commenced NEW SERIES, 39.-MAG. CAS.

at certain lime quarries in the parish of Stanhope, and passed through a point called the Carr House, at Pontop, and from thence to the River Tyne, in the town of South Shields, the whole length of the line being thirty-five miles or thereabouts.

3. In the year 1834 the Stanhope and Tyne Railroad Company completed the construction of their intended railroad, and it was opened for use in the month of September in that year. The company had no powers conferred upon them by Act of Parliament to enable them to construct the railway, and it was not by virtue of any powers conferred by Act of Parliament that the railway was constructed. The land upon which the railway was constructed was not the property of the company and the company did not obtain by purchase or otherwise the property in the land, nor had the company any right or title to use the same except as hereinafter mentioned. The company before and at the time of the construction of the railway entered into agreements with the owners of land upon which the railway was constructed, by which agreements, in consideration of half-yearly payments, made by the company to the owners, the company obtained leave to use on certain terms and for certain periods the land for the purposes of the railway. whole of the railway was constructed upon lands which the company obtained leave to use by virtue of such agreements except a portion within the district of Leadgate, which was constructed upon what was then and is used as a public highway.

The

4. The Stanhope and Tyne Railroad Company, which besides the railway also constructed staiths, with suitable machinery for loading and unloading vessels, in the River Tyne, used the line of railway for the purposes aforesaid, and also for the conveyance of passengers and goods from the month of September, 1834, down to the year 1839. In the latter year the company ceased to use that portion of the railway which lay between Stanhope and Carr House, being a distance of eleven miles or thereabouts (herein called "the upper part of the railway"), but down to the year 1842 continued to use

K

that portion of the railway which lay between Carr House and the River Tyne (herein called the lower part of the railway.")

66

5. On the 5th of February, 1841, the company, having become embarrassed, was under the powers of the deed of settlement dissolved, and on 13th of May, 1842, an Act was passed (5 Vict. s. 2. c. xxvii.)

The case then set out several sections of this Act, by which a company called the "Pontop and South Shields Railway" was incorporated and the "upper part of the railway," vested in this company, which took powers to purchase the land over which the line of railway passed, and it was declared that nothing in the Act should exempt "the lower part of the railway" from the provisions of any future general Act relating to railways. In 1844 another Act (7 Vict. c. xxvi.) was passed whereby the Pontop and South Shields Railway Company were empowered to widen a part of their railway and to purchase lands for that purpose, and in pursuance of this and the preceding Act, the company, from 1842 to 1846, kept open and regulated the lower part of the railway, and the staiths and works, and widened "the lower part of the railway." By later Acts both "the lower part of the railway" and "the upper part of the railway" were vested in the appellants, and from the dates 1841 and 1842, respectively, they have been worked and used for public traffic under the provisions of the several Acts relating thereto, and subject to such provisions of the general statutes for regulating railways as are applicable thereto.

27. In the year 1866 the Local Government Act, 1858 (1), was applied to the

(1) By the Local Government Act 1858 (21 & 22 Vict. c. 98), s. 55:-The general district rates shall be made and levied upon the occupier of all such kinds of property as by the laws in force for the time being are or may be assessable to any rate for the relief of the poor, and shall be assessed upon the full nett annual value of such property ascertained by the rate (if any) for the relief of the poor, made next before the making of the assessments under this Act, subject, however, to the following exceptions, regulations, and conditions. . . . The owner of any tithes, or of any tithe commutation, rentcharge, or the occupier of any land used as arable, meadow, or pasture ground only, or as woodlands, market gardens, or

district of Leadgate, and on the 27th of December, 1867, the Local Board for that district made an assessment for a General District Rate upon the occupiers and other parties liable by law to be assessed thereto.

28. Parts of "the upper part of the railway," and of "the lower part of the railway," and used only as railways are within the district of Leadgate.

29. In pursuance of the powers contained in the Acts of Parliament hereinbefore mentioned, the lands upon which "the upper part of the railway was constructed, by virtue of agreements for wayleaves, have by various purchases by private contract become vested in the appellants. These lands are exclusively used for the purposes of the railway.

30. Part of the land over which "the lower part of the railway" passes in the district of Leadgate is the property of the appellants. The remainder of such land (with the exception of a portion which forms part of a highway) is held by the appellants under leases or agreements for way leaves, as before mentioned, which have been from time to time renewed, and under which the appellants still pay halfyearly rents for the use thereof.

31. Since the time when "the upper part of the railway" and "the lower part of the railway" became vested in the Wear Valley Railway Company and the appellants respectively, as hereinbefore stated, the Wear Valley Railway Company and the Stockton and Darlington Railway Company and the appellants respectively, have expended large sums of money in widening, levelling, repairing and improving the same.

32. The appellants before and at the time of the making of the assessment, possessed and occupied within the district of Leadgate, houses used as dwellinghouses by the railway company's manager and servants, and a warehouse.

33. In the assessment the appellants were assessed, not only in respect of the

nursery grounds, and the occupier of any land covered with water, or used only as a canal or towing path for the same, or as a railway constructed under the powers of any Act of Parliament for public conveyance, shall be assessed in respect of the same in the proportion of one-fourth part only of such nett annual value thereof.