REG. v. THE INHABI TANTS OF SLAWSTONE. [ *389 ] [ 391 ] [392] under the Poor Law Amendment Act, 1851 (14 & 15 Vict. c. 105), s. 10, is to be considered as given on the day on which, by the ordinary course of post, it ought to have reached the party to whom it was sent, though in fact it arrive by the post on a later day. ON appeal against an order of two justices for the removal of Thomas Ward, his wife and children, from the parish of Slawstone, in the county of Leicester, *to the parish of Leverington Parson Drove, in the county of Cambridge, the Sessions quashed the order, subject to the opinion of this Court upon the following case. The order of removal was made at Market Harborough, Leicestershire, on the 5th August, 1851; and on the 7th of the same month, notice of chargeability, and a copy of the order of removal, together with a statement of the grounds of removal, were sent by post from Market Harborough to the appellant parish. The solicitors for the appellant parish applied by letter posted at Wisbeach on 26th August, to the clerk of the justices by whom the order had been made, for a copy of the depositions, which was sent to them in a letter posted at Market Harborough on 3rd September, and received by the appellants' solicitors on 5th September. On 17th September the solicitors for the appellant parish posted a letter at Wisbeach, containing a notice of appeal, which, in the regular course of post, ought to have arrived at Market Harborough, the post town for the respondent parish, on the 19th. On that day the pauper and his family were removed to the appellant parish. It appeared that the letter in fact reached Market Harborough upon the 20th. On these facts it was contended, for the respondents, that the appeal should be disallowed, as the notice thereof had not been given within the prescribed time. The Sessions allowed the appeal and quashed the order. If the Court of Queen's Bench should decide that the notice of appeal was given in due time, the order was to be quashed; if otherwise, the order to be confirmed. Pashley, in support of the order of Sessions, [cited Bishop v. Helps (1), Stocken v. Collin (2), and Dunlop v. Higgins (3)]. Maunsell and O'Brien, contrà. * LORD CAMPBELL, Ch. J.: It seems to me that there is no difficulty in construing stat. 11 & 12 Vict. c. 31, s. 9. The effect of that section is that a notice of appeal must be held to be given at the time when, according to the ordinary course of post (if it be sent by post, under stat. 14 & 15 Vict. c. 105, s. 10), it would reach the party to whom it is sent. (1) 69 R. R. 404 (2 C. B. 45). (3) 73 R. R. 98 (1 H. L. C. 381). REG. v. TANTS OF SLAWSTONE. The notice in the present case, therefore, was given within the proper time. The same interpretation must apply to the word THE INHABI"sending," with respect to the copy of the depositions. Even if that word be held to mean the *mere posting, the rule must be reciprocal; and, in that case, also, the notice will have been given in proper time. I am, however, clearly of opinion that the construction which I have first suggested is correct. COLERIDGE, J.: I am of the same opinion. The construction which we give to the statute carries out the intention of the Legislature, which was that appellants, after receiving a copy of the depositions, should have fourteen days to consider whether they would appeal or not. If they choose, as stat. 14 & 15 Vict. c. 105, s. 10, allows them, to send their notice by a public messenger instead of a private one, they are not responsible for the delay of the former, though they would be for that of the latter. WIGHTMAN, J. concurred. (CROMPTON, J. had left the Court.) Order of Sessions confirmed. OVERTON v. HUNTER (1). [ *393] 1859. Nov. 16. (1 L. T. N. S. 366–367; S. C. 23 J. P. 808; 29 L. J. M. C. 189, n.) The 18 & 19 Vict. c. 118, s. 2, which prohibits licensed victuallers [366] from opening or keeping open their houses for the sale of, or selling beer, wine, spirits, &c., after certain hours, does not apply to an innkeeper who, during the prohibited hours, is found gratuitously entertaining his guests with wine, beer, spirits, &c., though such guests are not travellers nor lodgers. THIS was a case stated under the 20 & 21 Vict. c. 43, upon a conviction of the appellant at the Petty Sessions for Chesterfield, for an offence under sect. 2 of the 18 & 19 Vict. c. 118, which enacts that "It shall not be lawful for any licensed victualler or person licensed to sell beer by retail to be drunk on the premises . . to open or keep open his house for the sale of, or to sell beer, wine, spirits, or any other fermented or distilled liquor between the hours of three and five o'clock in the afternoon and after eleven o'clock in the afternoon on Sunday, or on Christmas Day or Good Friday, or any day appointed for a public fast or thanksgiving, or before four o'clock in the morning of the day following such Sunday, Christmas Day, Good Friday, or such days of public fast or thanksgiving, except to a traveller or to a lodger therein." (1) Cited, Blakey v. Harrison [1915] 3 K. B. 258, 262, 265, 84 L. J. K. B. 1886, a case decided under s. 1 of the Intoxicating Liquor R.R.-VOL. CXLIX. (Temporary Restriction) Act, 1914. 48 The information against the appellant was, for that he the said appellant, on the 14th August, 1859, at Hardwick, in the parish of Ault Hucknall, in the county of Derby, being then an alehousekeeper, and duly licensed to sell exciseable liquors by retail in his house or premises there situate, and the said day being Sunday, did unlawfully open his said house for the sale of beer after eleven o'clock in the afternoon, otherwise than to a traveller or to a lodger in the said house or premises, contrary to the form of the statute in that case made and provided. The facts as stated in the case were the following: The appellant is a licensed victualler and alehouse-keeper within the meaning and provisions of the several statutes relating to the sale of wine, spirits and beer by retail in inns or public-houses, and he is duly licensed to sell wine, spirits and beer by retail at his the appellant's inn or public-house, at "Hardwick " Inn, in Derbyshire. The annual local feast was held on Sunday, the 14th August, 1859, and the "Hardwick " Inn was frequented by more people than usual on that day; at ten minutes before eleven o'clock on the evening of the same day, the appellant caused all persons to leave his inn, except those hereinafter mentioned, and he closed the outer doors of his inn and did not afterwards open them for the admission of customers. As soon as the outer doors were closed, a party consisting of the appellant and his wife, the appellant's brother-in-law and a young lady, both on a visit to the appellant, two persons who had assisted the appellant as additional waiters during the day, the Duke of Devonshire's farm bailiff and the Marquis of Hartington's groom (the two last persons having been in the inn from nine o'clock in the afternoon), sat down, on the appellant's invitation, to a supper provided for them by the appellant at his expense in one of the rooms of the appellant's inn. During and after supper the party had spirits and water provided for them by the appellant at his expense. At ten minutes past eleven o'clock on the same evening a policeman entered the appellant's inn and found the same party in the room, and on the last occasion with a decanter of spirits and tumblers before them. On each occasion the appellant told the policeman that the party were his, the appellant's, guests, and he was entertaining them. The policeman on this caused the above information to be laid against the appellant. There was no proof that the appellant had sold any spirits, wine or beer, or allowed any customer to enter his inn after eleven o'clock on the evening in question. The only persons joining the supper party who were inmates of the appellant's house were the appellant, his wife, the appellant's brother-in-law, and the young lady visiting the appellant. None of the other persons forming the party were travellers, or inmates of, or lodgers in the appellant's house or premises. The justices stated in the case that they decided against the appellant, and convicted him for the alleged offence in the penalty of 40s. and costs; and that the grounds of their decision were, that they considered, under the statute 18 & 19 Vict. c. 118, s. 2, that the appellant was not entitled, even at his own expense, to suffer beer or spirituous liquors to be drunk or consumed in his house or premises by persons not being travellers, or inmates of or lodgers in his house or premises after the hour of eleven o'clock in the afternoon of any Sunday. No one appeared in support of the conviction. Raymond appeared for the appellant, and contended that, as the appellant was entertaining his friends at his own expense, he was not within the terms of the Act. (He was stopped by the COURT.) COCKBURN, Ch. J.: It is quite unnecessary to argue this case further. The conviction cannot by any possibility *be supported. Here is a publican who is found on a Sunday evening entertaining at supper a few of his friends who had been attending a feast in the neighbourhood, and at the supper those friends had some spirits and water. The justices have found, as a fact in the case, that there was no sale of spirits. The case then is really at an end; and I must say that it is a case in which there was not the slightest shadow of a pretence for such a conviction. The innkeeper was giving a private entertainment to his own guests, which he had a perfect right to do. HILL and BLACKBURN, JJ. concurred. Conviction quashed with costs. OVERTON v. HUNTER. [ *367 ] 1800. May 5. [129] [ *130] IN THE COURT OF COMMON PLEAS. GIBSON v. CHATERS (1). (2 Bos. & P. 129-130.) In an action for maliciously holding to bail, it is not sufficient to prove that the writ was sued out after payment of the debt, if the circumstances afford no inference of malice; but in such case evidence of actual malice must be given. THIS was an action on the case for maliciously and without any just or probable cause arresting the plaintiff and holding him to bail. At the trial before Lord Eldon, Ch. J., at the Guildhall sittings after last Hilary Term, it appeared that the plaintiff and the defendant were both resident at North Shields, in Northumberland, the former being the master, and the latter the owner of a ship; that some matters in difference between them having been submitted to arbitration, the plaintiff was awarded to pay the sum of 197. 148. on the 31st of November, 1797, but in consequence of his being absent from home at that time, and not returning till March, 1799, did not pay the sum awarded; that in December, 1798, the defendant being in London, made an affidavit of debt to hold the plaintiff to bail, and that a writ issued thereupon; that on the plaintiff's return to North Shields in March, 1799, he hearing of the defendant's intention to arrest him, paid the debt to the defendant's agent at North Shields, and took a receipt for the amount; that on the 4th of May following, the plaintiff having arrived in the river Thames from North Shields, was arrested and holden to bail by the defendant's attorney, on an alias writ taken out at that time, but grounded on the affidavit made by the defendant in December, 1798. His Lordship being of opinion that it was necessary to prove express malice, and that no evidence of malice had been given, nonsuited the plaintiff. Best, Serjt., now moved for a rule nisi to set aside this nonsuit, and have a new trial; contending that the case was distinguishable from that of Scheibel v. Fairbain (2); the writ on which the plaintiff in that case was arrested having been sued out previous to the time when the debt was paid, whereas the writ in the present instance was actually taken out after the debt had been discharged and the receipt given; that the ground of complaint in Scheibel v. Fairbain was a mere nonfeasance in the defendant, who had omitted to countermand a writ previously sued out, and was so treated by the COURT, but that this was a malfeasance and came expressly within the rule laid down in Waterer v. Freeman (3), that (1) Explained, Clissold v. Cratchley [1910] 2 K. B. 244, 250, 251, 79 L. J. K. B. 635, 102 L. T. 520, C. A. (2) 1 H. Bl. 388. |