Terminer. The point at which it would seem equitable to draw the line, is well illustrated by recent cases. In Lindsay v. Cundy, manufacturers in Ireland had sent a quantity of goods upon the faith of an order given by letter, from an adventurer named Blenkarn, who had taken a room at 37, Bread Street, and signed the order so as to induce the plaintiffs to believe that it came from Blenkiron and Co., a large and well known firm, which had long had premises in the same street. Held, that plaintiffs were entitled to recover, as they had never intended to contract with Blenkarn, or pass the property to him (a).

But when W., by fraud, induced N. to sell and deliver to him a number of sheep, which W. resold to M., who bought and paid cash for them in good faith, and in ignorance of W.'s fraud, M.'s title prevailed against that of N., because the contract, though induced by fraud, had been acted upon, and could not afterwards be repudiated to the prejudice of an innocent third party (6).

The order of restitution must be made by the Court before which the offender is tried, the ancient jurisdiction of the Court of Queen's Bench to make such orders, having been abolished by 59 Geo. III., cap. 46 (c).

The Act for abolishing forfeitures for felony (d) gives a new remedy to pawnor or pawnee whose property has been larcenously taken from them. The Court before which the offender is convicted, may award any sum not exceeding £100 as compensation for the applicant's loss of

(a) Lindsay v. Cundy, L.R. 2 A.C. 459, 47 L.J. 481 Q.B., 38 L.T. N.S. 573, 26 W.R. 406, 14 Cox's C.C. 93 (in H.L.).

(b) Moyce v. Newington, 4 Q.B.D. 32, 48 L.J., 125 Q.B.D., 39 L.T. N.S. 535, 27 W.R. 319; Babcock v. Lawson, 5 Q.B.D. 284, 49 L.J., 408 Q.B.D. 42 L.T. N.S. 289, 27 W.R. 591 (in C.A.).

(c) Reg. v. Mayor of London, L.R. 4 Q.B. 371, 38 L.J. 107 M.C., 20 L.T. N.S. 604, 17 W.R. 722, 11 Cox's C.C. 280.

(d) 33 & 34 Vict., cap. 23, sec. 4.

property through the prisoner's larceny, which sum, when awarded, shall become a judgment debt, chargeable upon, and recoverable from, the proceeds of any property the prisoner may possess (a). Felons may also be ordered to pay, out of property in their possession, the costs of their prosecution (b).

Money so adjudged to a prosecutor must be paid, notwithstanding the felon has been made bankrupt, for his trustee takes his property subject to the liability of having such an order made upon it (c).

Courts of Summary Jurisdiction have been empowered by statute to give a cheap and speedy remedy to pawnor or pawnee when the pawn is of small value. Thus, by 2 & 3 Vict., cap. 71, sec. 40, any metropolitan magistrate upon complaint of the unlawful detention of goods of less value than £15, may issue a summons to the person detaining them, and order the goods to be delivered to the applicant, provided that no such order shall bar any person from recovering the goods so delivered by action at law. Dismissal of a claim made under this section, does not operate as an estoppel, or prevent the claimant from suing at law (d).

The Pawnbrokers' Act, 1872, enables Courts of Summary Jurisdiction to deal with offences under the Act (e) by summons, issued on complaint to one or more magistrates, and heard by one stipendiary magistrate, or by two or more Justices in Petty Sessions.

(a) This power is to be very cautiously exercised. It will not be used to sanction any arrangement or compromise between prisoner and prosecutor (Reg. v. Lovett, 11 Cox C.C. 602).

(b) 33 & 34 Vict., cap. 23, sec. 3.

(c) Reg. v. Roberts, L.R. 9 Q.B. 77, 43 L.J. 17 M.C., 29 L.T. N.S. 674, 22 W.R. 60, 12 Cox's C.C. 574.

(d) Dover v. Child, L.R.1 Ex. D. 172, 45 L.J. 462 Ex. D., 34 L.T. N.S. 737,

24 W.R. 537.

(e) 35 & 36 Vict., cap. 93, secs. 4, 45, 56.

Procedure under the Act is regulated by Jervis's Act, 11 and 12 Vict., cap. 43, and by the Summary Jurisdiction Act, 42 and 43 Vict., cap. 49. A summons must be issued within six months of the act complained of (a).

The Pawnbrokers' Act, 1872, prescribes (6) £10 as the general penalty for offences against the Act; that is to say, that £10 is the maximum penalty. Express power to mitigate penalties was given by 22 and 23 Vict., cap. 98, which extended to the whole of England the mitigatory provisions of the Metropolitan Police Act (c). The above Act was repealed by the Act of 1872, but the power to mitigate has been retained by providing that the penalty shall be "not exceeding £10," thus allowing the Bench to impose a merely nominal fine in cases where justice so requires. Until 1879, penalties for offences with respect to licences, could not be reduced below certain well defined limits (d), but Justices are now empowered to mitigate the penalty for a first offence against the Revenue, as against private persons (e).

Trading without a licence, or with a licence obtained otherwise than as by the Act prescribed, will still make void contracts by unlicensed traders, who will acquire no lien or other right by advances made in breach of the Revenue laws (f), and will also be punishable for an offence under the Act (g).

Acting as Pawnbroker without having in force a licence granted in pursuance of the authority of a certificate,

(a) 11 & 12 Vict., cap. 43, secs. 1 & 11. Morant v. Taylor, L.R. 1 Ex. D. 188, 45 L.J. 78 M.C., 34 L.T. N.S. 139, 24 W.R. 461.

(b) Sec. 45.

(c) 2 & 3 Vict., cap. 71, secs. 32, 33, 34.

(d) See ante, page 131.

(e) 42 & 43 Vict.; cap. 49, secs. 4, 53.

(f) 35 & 36 Vict., cap. 93, sec. 51. Fergusson v. Norman, 5 Bing. N.C. 76, 6 Scott 794, Fraser v. Hill, 1 Macq. H.L. Ca. 392.

(g) 35 & 36 Vict., cap. 93, secs. 5, 6, 7, 37, 39, 40, 41, 42, 43, 56 (8).

granted by magistrates in manner prescribed by the Act. Penalty-same as for trading without licence, as a licence granted without a magisterial certificate, where such is required by the Act, is void (sec. 39). Pawnbrokers licensed before August 10th, 1872, and their executors, administrators, and successors, are not required to obtain such a certificate (sec. 39).

Magistrates can only refuse their certificate to an applicant for a licence on the following grounds :-(1) That the applicant has failed to give satisfactory evidence of good character. (2) That his shop or some adjacent house or place occupied by him, is frequented by thieves or persons of bad character. (3) That he has omitted to give the required notices of his application. They must also specify the ground of their refusal. If they refuse the licence on grounds not authorised by the Act, or decline to state the ground on which they have acted, the Queen's Bench Division will grant a mandamus to compel them to hear and determine according to law (a).

A licence actually granted by competent authority will protect from conviction for trading without a licence, notwithstanding some irregularity in the mode of obtaining it, as when, under 25 and 26 Vict., cap. 22, sec. 13, and 26 and 27 Vict., cap. 33, sec. 20, sub-sec. 1, an Excise licence was granted upon the written consent of a Justice who did not "usually act at the Petty Sessions for the division in which the place of sale is situate" (b).

The real owner of goods unlawfully pawned, is not bound to produce or tender the pawn-ticket on demanding

(a) Reg. v. De Rutzen, L.R. 1 Q.B.D. 55, 45 L.J. 57 M.C., 33 L.T. N.S. 726, 24 W.R. 343. Reg. v. Sykes, L.R. 1 Q.B.D. 52, 45 L.J. 39 M.C., 33 L.T. N.S. 566, 24 W.R. 141, and other cases cited ante, p. 134.

(b) Stevens v. Emson, L.R. 1 Ex.D. 100, 45 L.J. 63 M.C., 33 L.T. N.S. 821 (in C.A.).

them from the Pawnbroker (a). Nor is he restricted to the remedy given him by the Pawnbrokers' Act (b), when seeking to recover his property. He may sue in the County or Superior Court, for though the Pawnbrokers' Act gives an additional remedy to such a suitor, it does not take away or affect those already existing (c). But though the making or refusal of an order for the delivery of property by a metropolitan magistrate, under 2 and 3 Vict., cap. 71, sec. 40, will not operate as an estoppel between the parties (d), an order duly made under the Pawnbrokers' Act will estop, as the decision of a Court of competent jurisdiction (e).

A Court of Summary Jurisdiction, having inflicted a pecuniary penalty, cannot order imprisonment without previously ordering the money to be recovered by distress, and proof that it cannot be so recovered (ƒ). Any sum adjudged on complaint to be due, is now recoverable as a civil debt, and not otherwise (g). And the Court may allow time for payment; direct payment by instalments; or take sureties for the payment of any sum made payable by order or conviction (h). But penalties payable

(a) Peet v. Baxter, 1 Stark. 472; Packer v. Gillies, 2 Camp. 336.
(b) 35 & 36 Vict., cap. 93, sec. 25.

(c) Singer Manufacturing Coy. v. Clark, L.R. 5 Ex. D. 37, 49 L.J. 224 Ex., 41 L.T. N.S. 591, 28 W.R. 170.

(d) Dover v. Child, L.R. 1 Ex.D. 172, 45 L.J. 462 Ex. D., 34 L.T. N.S. 737, 24 W.R. 537.

(e) Flitters v. Allfrey, L.R. 10 C.P. 29, 44 L.J. 73 C.P., 31 L.T. N.S. 878, 23 W.R. 442 (which was a County Court judgment). Wright v. London General Omnibus Coy., L.R. 2 Q.B.D. 271, 46 L.J. 429 Q.B.D., 36 L.T. N.S. 590, 25 W.R. 647, where a plaintiff, injured by defendant's furious driving, failed in an action for damages, having accepted compensation under the order of a magistrate, upon a summons taken out by another person.

(f) Re Brown, L.R. 3 Q.B.D. 545.

(9) 42 & 43 Viot., cap. 49, sec. 6.

(h) Ibid, sec. 7.