THE TRUSTEES OF THE MERSEY DOCKS v. CAMERON-REG. v. LEATHAM. [Q. B. Labourin v. Marshall and another, 3 B. & Ad. 440;. Fletcher v. Williams, 6 E. 283; R. v. Morgan, 2 A. & E. 618; George v. Chambers, 11 M. & W. 149; Jones v. Johnson, 5 Ex. 862; Newbold v. Coltman, 6 Ex. 189; Morrell v. Martin, 3 Man. & Gr. 581; Marshall v. Pitman, 9 Q. B. 595; The Churchwardens of Birmingham v. Shaw, 10 Q. B. 868; Reg. v. Bradshaw, 2 L. J., 176, M. C. C. B.] not to be inconsistent with the conditions and instructions hereinbefore mentioned; and sect. 62 says that the valuer shall and may, before making allotments of the land to be inclosed in pursuance of, or in any manner not "inconsistent" with the instructions given to such valuer, as aforesaid, set out and make public roads and ways; but in sect. 68, which relates to the power of the valuer to set out private roads, the words "not inconsistent" are omitted, the words being as he shall Mellish (Hutton with him), for the defts., cited think requisite for the use of the persons interested in The Metropolitan Board of Works v. The Vauxhall such lands or any of them." I am of opinion that the Bridge Company, 26 L. J. 253, Q.B.; Reg. v. Bradplaintiff has had this allotment assigned to him sub-shaw, 29 L. J. 126, M. C.; Earl of Radnor v. Reave, ject to these provisions. The words in sect. 4 of 2 Bos. 391; Governors of the Poor of Bristol v. 11 & 12 Vict. c. 99, giving the valuer power to set out Wayte, 1 A. & E. 264. private roads, are very wide, and give the commissioners a jurisdiction which I do not consider they have exceeded. WILLIAMS, J.-I am entirely of the same opinion, and as at present advised, giving the true construction to the provisional order, I think that the commissioners had power under sect. 68 to subject this allotment to have a private road made over it. It is said that the valuer has not acted according to the provisional order, but I do not think so, and I see nothing in the order which precludes him from dealing with this allotment in the same way as with the others. It has been said that the valuer having so much power he might do something which would be unjust, but we must deal with this case in the same way as the case of Stockdale v. Hansard, 8 Dowl. 669, and assume that he would not abuse his power. KEATING, J.-I also am of opinion that the commissioners have not exceeded their jurisdiction in setting out this private road. It is of great importance that the terms of the Act should be strictly adhered to; and as to this provisional order, I think the meaning of it is, that the plaintiff was to take the lands allotted to him subject to the provisions of the Act, and therefore this rule must be made absolute. Rule absolute. Attorneys for defendants, White and Borrett. Jan. 25 and Feb. 25. THE TRUSTEES OF THE MERSEY DOCKS v. CAMERON. Non-liability to pay poor-rate by reason of the occupation not being beneficial-Exemption is a ground of appeal, and an action in respect of a levy made to enforce the rate connot be maintained. Where property has been rated to the poor-rate, and it has been decided that such property is exempted by reason of the occupation not being beneficial, the party so rated cannot maintain an action of replevin for a levy made to enforce such rate, but he must seek his remedy by an appeal to the quarter sessions. This was an action of replevin brought by the plts. against the defts. for the taking and detaining of certain goods and chattels of the plts., and by the consent of the parties a case was stated for the opinion of the court, which, however, it is not necessary to set out, as the main question, which was whether the plts. had such a beneficial occupation of the dock estate as to render them liable to be rated to the relief of the poor, has been already decided by the court in the negative in the case of The Mersey Docks and Harbour Board v. Jones, 3 L. T. Rep. N. S. 212. Another question was, however, left to the court, viz., whether if the plts. were not liable to be rated they could maintain their action. On behalf of the defts. it was contended that, even if the plts. were not liable to be rated by reason of their occupation not being beneficial, this exemption furnished only a ground of appeal to the court of quarter sessions against the rate, and not for an action in respect of a levy made to enforce the rate. Sir F. Kelly (Quain and Parker with him) appeared ERLE, C. J.-When the case of The Mersey Dock Trustees v. Jones, 8 C. B. 114, was before us, we thought ourselves bound by the authority of the decision of Reg. v. The Inhabitants of Liverpool, 7 B. & C. 61. The present case involves the same point, and if no other question had been raised we should have deferred giving our judgment until the Court of Ex. Ch. should have affirmed or reversed our decision. But a second point has been raised on the part of the defts., viz., that even if the plts. are not liable to be rated by reason of their occupation not being beneficial, this exemption furnishes only a ground of appeal to the quarter sessions, and not for an action in respect of a levy made to enforce the rate. In support of this contention the cases of The Overseers of Birmingham v. Shaw, 10 Q. B. 868; Reg. v. Bradshaw, 29 L. J. 176, M.C., were cited. It cannot be denied that these deliberate decisions of the Court of Q. B. are directly in point in favour of the defts., and we think it is our duty to defer to them, and to leave all further argument respecting them for the consideration of a court of error. Possibly the two points may resolve themselves into one, viz., whether there can ever be an exemption from the liability to rate where there is an actual occupation by the person rated; in other words, whether the true ground on which an occupation for public purposes has been held an exemption be not that in such cases the occupation was that of the public, and there was not an occupation at all by the person rated, and whether, therefore, the principle is not inapplicable whenever there is an actual occupation notwithstanding he derives no individual benefit from his occupation. If this be so, the actual occupation may well be regarded as bringing the case within the statute of Elizabeth, so as to render an appeal to the sesions the only proper mode of disputing the propriety of the rate; but if the exemption be regarded as based on the doctrine that the word "occupier" in the stat. Eliz., which gave powers to raise money of every occupier of land ought to be construed to mean "beneficial occupier," then it is certainly more difficult to understand the principle on which the decision in Birmingham v. Shaw proceeded; because, if this be so, the statute may be read as if the words of it were" every beneficial occupier;" how then can a valid rate be made on an occupier who is not a beneficial one? Surely, there can be no distinction in such a construction of the statute between a man not an actual occupier of any rateable property who clearly is not put to an appeal, and a man not a beneficial occupier, seeing, that if the statute be so read, one is just as much out of the reach of it as the other. Judgment for defendants. COURT OF QUEEN'S BENCH. Reported by JOHN THOMPSON, T. W. SAUNDERS, and C. J. B. HERTSLET, Esqrs., Barristers-at-Law. Tuesday, Feb. 12. REG. v. LEATHAM. for the plts., and cited Harrison v. Woolcot, 1 H. Bla. Evidence-Clue to document-Privilege of protection 69; Lord Amherst v. Lord Somers, 2 T. R. 372; | -Corrupt Practices Act—Appeal. If a confession of a crime be improperly obtained so as to be inadmissible in evidence, yet if in the course of such confession a clue is given to other evidence which will prove the case, such latter evidence is admissible. Where a document cannot be produced by reason of On an inquiry before commissioners under the 15 & [Q. B. done so, secondary evidence of it was received in the usual manner. Sir F. Kelly, Q.C., Edward James, Q.C., Price and Quain were called on in support of the rule.-The 15 & 16 Vict. c. 57, introduced a principle and practice unknown before. The 6th section provides for inquiry into the existence of corrupt practices at elections; and such commissioners are to report to her Majesty, and their reports are by the 7th section to be laid before Parliament. The 8th section enacts that it shall be lawful for such commissioners by summons under their hand and seal, or under the hand and seal of any one of them, to require the attendance before them of any persons whomsoever, whose evidence in the judgment of such commissioner or commissioners inay be material to the subjectmatter of the inquiry to be made by such commissioners, and to require all persons to bring before them such books, papers, deeds and writings as to such commissioners or commissioner appear necessary for arriving at the truth of the things to be inquired into by them under the Act. It then enacts that all such persons shall attend such commissioners, and shall answer all questions put to them by such commissioners touching the matters to be inquired into by them, and shall produce all books, papers, deeds and writings required of them and in their custody, or under their control, according to the tenor of the summons. It then provides "that no statement made by any person in answer to any question put by such commissioner shall, except in cases of indictment for perjury committed in such answers, be admissible in evidence in any proceeding civil or criminal." The 9th section This was an information at the suit of the Attorney-enacts, for the more effectually prosecuting any inquiry General against the defendant, for certain offences against the Corrupt Practices Act, alleged to have been committed at the Wakefield election. It was tried before Martin, B. at York, when a verdict was returned for the Crown. Subsequently a rule was obtained to set aside that verdict, and for a new trial, on the ground that there was no evidence of a payment being made to a person named Gilbert in support of the first count of the information, and that the contents of a certain letter, written by a person named Wainwright, an agent of the defendant, to the defendant, and the defendant's letter in answer to Wainwright, had been improperly admitted in evidence. The Solicitor-General, Overend, Q.C., Monk, Q.C., and Cleasby now showed cause.-[The Crown having determined to enter a nolle prosequi on the first count, the question as to the admission of the letters in evidence alone remained.] The two letters in question were dated respectively the 4th and 5th April 1859. The first was written by Wainwright to the defendant, asking for an account of sums advanced by him for election purposes, and was put in evidence in order to explain what the defendant's letter of the 5th Aug. was an answer to. This last-named letter was in the following terms :-"Hemsworth-hall, Pontefract, Aug. 5, 1859. Dear Sir,-In reply to your inquiry I beg to hand on the other side the sums of money which were advanced by myself and friends for election purposes, &c. Signed, W. HENRY LEATHAM ;" and then followed a list of sums amounting in all to about 44611. 18s. 8d. The defendant had been summoned to attend before the commissioners on the Wakefield election, and questions were then put to him which he answered. He was also summoned to produce papers, &c. in his possession. His examination took place in October, and in November following Mr. Wainwright, who was also summoned as a witness, sent in the defendant's letter of the 5th Aug. to Mr. Dew, the secretary of the commissioners, who produced it on the trial of this information, and it was then found to be in defendant's handwriting. The other letter of the 4th Aug. defendant had notice to produce, but not having [MAG. CAS.] under the Act, that every person who has been engaged in any corrupt practice at or connected with any election of a member of Parliament, and gives evidence touching such corrupt practice before the commissioners, and who upon such examination makes a true discovery to the best of his knowledge touching all things to which he is so examined, shall be freed from all penal actions, forfeitures, punishments, disabilities and incapacities, and all criminal prosecutions to which he might have been or might become liable or subject at the suit of her Majesty for anything done by such person or persons in respect of such corrupt practice; and that no person shall be excused from answering any question put to him by such commissioners on the ground of any privilege, or on the ground that the answer to such question would tend to criminate such person. The 10th section enacts that when any witness is so examined as aforesaid, he shall not be indemnified under the Act unless he receive from the commissioners a certificate in writing under their hands, stating that he has upon his examination made a true disclosure touching all things on which he was so examined; and that if any action, information, or indictment shall be at any time pending in any court against any person so examined as a witness for any corrupt practice at any election to which the inquiry made by such commissioners has reference, such court shall, on the production and proof of such certificate, stay the proceedings in any such action, information, or indictment, and may in its discretion award to such person such costs as he may have been put to by such action, information, or indictment. The 11th section gives the power to the commissioners to examine witnesses on oath; and the 12th section contains provisoes for compelling the attendance of witnesses, and to compel them to answer questions and produce documents. The proviso in the 8th section, that no statement shall be admissible in any proceeding applies to statements in writing as well as verbal statements, and any document produced under that Act is a statement" which cannot be admitted in evidence. [BLACKBURN, J.-The written document in question was written prior to the statement made 66 2 T Q. B.] REG. v. WILMOT. [Q. B. to the commissioners, and was evidence prior to that | who had left the court, but who had heard the chief statement. Is there anything in the Act which part of the argument, was of the same opinion.] says that that which was evidence before shall cease HILL, J.-I am of the same opinion. The rule to be evidence?] The defendant's letter was not might have been disposed of on the narrow ground evidence before he was examined and made his state- that the letter of the 5th Aug. was not produced ment; its existence was not known, and could not before the commissioners by the defendant, and therehave been known but for this act; its existence was fore no privilege could attach; it was produced by found out by the examination of the defendant. If the Wainwright in obedience to the mandate of the comcourt should be of opinion that this rule should be dis-missioners. As to the letter of the 4th Aug., its charged, I shall ask leave to appeal. [CROMPTON, contents were given in evidence without objection, J.-What in a criminal matter? The Act giving an ap- and it was only put in evidence out of fairness to the peal does not apply to criminal cases. It is clear there defendant himself, to show to what his letter of the is no appeal. HILL, J.-The way in which this ques- 5th was an answer. But even if objection had been tion arises should be distinctly understood. The defen- taken to the admission of the letter of the 4th Aug. dant's letter was not given, sent, or produced by on the ground of privilege, the rule is that where a Leatham to the commissioners-it was produced by document cannot be produced by reason of priWainwright; then, as to the other letter, notice was vilege, independent secondary evidence is admissible. given to Leatham to produce it, and he did not do so, I do not, however, think there was any objection to and then secondary evidence of it was properly received.] the reception of the original. The court must look at The privilege and the protection must be equally large; the words of the Act of Parliament, and the object wherever, if the privilege had been claimed, the evidence which the Legislature had in view; and unless there would have been excluded, the protection extends. is something in the Act repugnant thereto, they Whenever a man is compelled to answer and produce, ought to construe the words in their plain grammatical he is protected; here the first clue to the letter meaning. The 8th section says witnesses are to proceeded from the defendant. [CROMPTON, J.- attend and answer questions, and produce documents; and the proviso says that no statement made by any person in answer to any question shall be given in Suppose you, by threats and promises, obtained a confession of murder which would not be admissible, but you also obtain a clue to a place where a written con-evidence, but it says nothing about documents or books; fession may be found, or where the body of the person murdered is secreted; could not that latter evidence be made use of because the first clue to it came from the murderer? It matters not how you get it; if you steal it even, it would be admissible in evidence. [BLACKBURN, J.-I never heard of a case where a man served with a subpæna duces tecum claimed his privilege. I know it is so laid down in Taylor on Evidence, but the cases do not bear it out.] It is also so laid down in Starkie and Phillips. [BLACKBURN, J.--How often are documents taken out of a prisoner's pocket and produced against him; you would say he might claim his privilege.] There they are obtained by physical force; but suppose the man was in the witness-box and said he had such a document in his pocket, but declined to produce it, as it would criminate him; he would be protected. The same rule applies to written and oral testimony in construing this statute. it leaves them as they were before. The court would be Monday, April 22. Where a person has been convicted and taken to prison under a warrant of commitment the entering into recognisances to prosecute an appeal does not operate as a suspension of the committal, and the person has no right to his discharge upon bail during the pendency of the appeal. CROMPTON, J.-I am of opinion that this rule ought to be discharged. The matter is important; but I entertain no doubt as to the meaning of the Act of Parliament. The court has no means of sending the case to a higher court, but it is not a case of doubt and difficulty to make it necessary. It seems to me clear that the letter in question was not "a statement" made by the defendant in answer to a question by a commissioner so as to be within the proviso of the 8th section of the Act [his Lordship read the proviso]; that applies to statements made, and not to documents produced, which may be proved aliunde. It is the duty of the court to give full effect to the protection of the statute, and not to allow statements made to be given in evidence against the defendant. If it had been the intention of the Legislature, it would have been easy for it to say that no document should be given in evidence if the clue to its existence had been found by what a witness said on his examination. It is a maxim that no statement made by a prisoner can be given in evidence if it has been improperly obtained by It appeared that the prisoner, a marine store dealer threats or a promise; but nevertheless it is permitted at Chatham, had been convicted by the acting superinto give in evidence the discoveries to which such state-tendent of her Majesty's dockyard at Chatham under ments might lead, such as the discovery of stolen pro- the 18th section of the 39 & 40 Geo. 3, c. 89, of unperty, or of a body. Suppose the defendant said that lawfully having in his possession certain property a letter would be found in his house; that statement marked with the Admiralty mark known as "the would not exclude the document if it was found there. broad arrow" and sentenced by him to three calendar I think the proviso does not, by implication, exclude a months' imprisonment with hard labour. document merely because it was referred to in the examination. [His Lordship said that Wightman, J., Rule nisi calling upon the keeper of the gaol of St. Augustine, near Canterbury, to show cause way a writ of habeas corpus should not issue to bring up the body of Wm. Wilmot, a prisoner, in order to his discharge upon the ground that he had been illegally committed to prison, or why the said prisoner should not be admitted to bail. The power of convicting offenders of such offences was formerly exercised by commissioners of the navy and justices of the peace, but such jurisdiction is now exercised by the superintendents of her Majesty's dockyards as well as by the justices: (2 Will. 4, c. 40, s. 11.) The deft. after he was taken to prison on the usual warrant, gave notice of his intention to appeal to the quarter sessions under the 21st section, and having entered into recognisances at Canterbury, before a justice of the county, to prosecute his appeal, applied at chambers, to Blackburn, J., and afterwards to Wightman, J., to be admitted to bail, in order that he might prosecute and try his appeal, but some difficulty being experienced in granting that application the present rule was obtained either to discharge the prisoner on habeas corpus or to liberate him on bail. The following are the material enactments applicable to the case : The 40 Geo. 3, c. 89, "An Act for the better preventing the embezzlement of his Majesty's naval, ordnance and victualling stores." Sect. 18. And whereas it might tend to prevent the commission of offences if power were given to the commissioners of his Majesty's navy, ordnance and victualling, and his Majesty's justices of the peace out of sessions, to hear and determine offences in a summary way in cases where the stores found are of small value, and to fine or otherwise punish the offenders accordingly; be it therefore enacted, by the authority aforesaid, that from and after the passing of this Act, it shall and may be lawful to and for any principal officer or commissioner of the navy, ordnance, or victualling for the time being, or any justice of the peace for any county, division, city, town corporate, liberty, or place within this kingdom, to hear and determine any complaint against any person or persons (not being a contractor or contractors, or employed as aforesaid) for unlawfully selling or delivering, or causing or procuring to be sold or delivered, or for receiving or having in his, her, or their custody, posses sion, or keeping, or for concealing any stores of war, or naval, ordnance, or victualling stores, or goods marked with such marks respectively as are herein before mentioned, of any value in the whole not exceeding 20 s., which said commissioner or justice respectively is. hereby authorised and required, upon any information exhibited, or complaint made in that behalf, at any tir ae within three calendar months next after any such offence shall have been committed, to cause the party or parties accused to be apprehended and brought before him, or if he, she, or they shall have absconded or ‹annot be found, then to be summoned to appear before such commissioner or justice by a notice or summon s left at his, her, or their last or usual place of abode, a nd also to cause the witnesses on either side to be summoned, and such commissioner or justice shall examine into the matter of fact, and upon due proof made thereof, either by the voluntary confession of the party or parties, or by the oath of one or more credible witness or witnesses (which oath the said commissioner or justice respectively is hereby authorised to administer), give judgment or sentence accordingly, and in case the party or parties accused shall be convicted of such offence,, then it shall and may be lawful to and for such comr nissioner or justice of the peace respectively to inflict a fine of 101. upon him, her, or them, for such his, her, or their offence, which said fine so inflicted shall be livided and distributed one moiety thereof to the infc rmer or discoverer of the offence, and the other moiety thereof (the necessary charges for the recovery there of being first deducted) to the treasurer of his Majesty's navy or ordnance as the case may be, to be by him applied in such manner as hereinbefore mentioned with respect to the produce of boats, barges, or other craft seized or sold under the authority of this Act, and to ward and issue out his warrant under his hand and sal for levying such fine so adjudged on the goods of the offender or offenders, [Q. B. and to cause sale to be made thereof for payment of such fine and reasonable charges of distress (to be adjudged of by such commissioner or justice respectively) in case they shall not be redeemed within six days, rendering to the party the overplus, if any, and where sufficient goods of the party cannot be found to answer the said fine, to commit the said offender or offenders to the common gaol of the county, division, city, town corporate, liberty, or place for the space of three calendar months, unless such fine shall be sooner paid; or, in lieu of such fine, to cause such offender or offenders to be imprisoned and kept to hard labour in the house of correction for the space of three calendar months, as to such commissioner or justice of the peace respectively shall be thought fit; and every such commissioner or justice shall cause the amount of every such last-mentioned moiety of fine which he shall so receive, and also the moiety of every sum arising from the sale of any barge, boat, or other craft sold under the authority of this Act, and paid into his hands as aforesaid, to be paid into the hands of the said treasurer of the navy or ordnance within thirty days after the expiration of the year in which such fines shall be received by him, or in default thereof such commissioner or justice respectively shall forfeit the sum of 50l., to be recovered with double costs of suit by any person or persons who shall sue for the same by action of debt, bill, plaint, or information in any of his Majesty's courts of record at Westminster, or Court of Exchequer in Scotland, wherein no essiogn, protection, or wager of law, nor more than one imparlance shall be allowed; one moiety of which last-mentioned fine shall go to his Majesty, his heirs and successors, and the other moiety thereof to him or them who shall sue for the same as aforesaid. Sect. 20. Provided also and be it enacted, that in case such commissioner or justice of the peace shall, upon the hearing and determining of such complaint as aforesaid, adjudge the offender or offenders, in lieu of a fine, to be imprisoned and kept to hard labour as aforesaid, that then the informer or person or persons who shall have discovered such offender or offenders shall have and receive as a reward for such his, her, or their discovery, the sum of 51. for every such offence so discovered, and the principal officers and commissioners of his Majesty's navy, ordnance, or victualling, as the case may require, shall cause the said reward of 5l. to be paid by the treasurer of the navy or ordnance respectively for the time being out of any public money in his hands, upon such informer or other person producing to them a certificate under the hand and seal of the commissioner or justice of the peace who shall have convicted such offender or offenders as aforesaid, certifying such conviction and the punishment which he hath inflicted on the offender or offenders, and the name or names of the person or persons who in his judgment is entitled, and in what proportion or proportions to such reward, which certificate the said commissioner or justice of the peace respectively is hereby required to give without fee or reward, and the money paid by any such treasurer on account of such last-mentioned reward shall be allowed in his accounts, and he shall be discharged thereof accordingly, any law, custom, or usage to the contrary thereof in any wise notwithstanding; provided also that no such summary proceeding as before mentioned shall be had before any justice of the peace under the authority of this Act without the consent in writing of the principal officers or commissioners of his Majesty's navy, ordnance, or victualling for the time being, or one of them, for that purpose first had and obtained, and that every adjudication or sentence to be had or given without such consent as aforesaid shall be null and void to all intents and purposes whatsoever. Sect. 21. And be it further enacted, by the authority Q. B.] REG. v. WILMOT. aforesaid, that if any person or persons shall find him- [Q. B. not being levied to imprison him; but the subsequent part of the enactment raises considerable difficulty in the way of this construction. The words "or in lieu of such fine" look as if there was to be a fine in the first instance, and then imprisonment if that could not be levied. On the other hand, it seems difficult to understand why the justice should have power to inflict in lieu of the fine imprisonment with hard labour, while he has power to imprison merely without hard labour where a fine has been imposed, and sufficient goods of the party cannot be found to answer the said fine. Upon the whole, therefore, I think the Legislature meant to give the alternative power to the magistrate, and that he should exercise his judicial discretion upon the case as to whether it was a case in which he should impose a fine, or imprison the party with hard labour, without regard to any fine. This rule further asks the court to discharge the party out of custody on entering into recognisances to prosecute the appeal. Upon this point the first difficulty is, that it is not plain that sect. 21 gives any appeal at all in this case. Possibly, under the words "treble the amount of such fine," when imprisonment is substituted for a fine, the party would be entitled to appeal, but it is not necessary to decide whether or not that is the true construction; for it may be that the party has a right to appeal but still what power has this court to discharge him on entering into a recognisance to (Jervis Act) gives no such power; and sect. 27 only enacts that when an appeal against any conviction shall be decided in favour of the resps. the justice who made the conviction may issue his warrant for execution of the same. In this case the warrant has already been issued, and the man is in custody under the warrant of commitment. That section does not apply to a case like this The rule must therefore be discharged. Collier (West with him), on behalf of the Ad-prosecute the appeal? The 11 & 12 Vict. c. 43 miralty, showed cause.-It is contended for the prisoner that the superintendent had no power to inflict imprisonment, but was bound in the first instance to impose a fine, and then, in default of payment or satisfaction by distress, imprisonment. The question depends upon the construction of sects. 18 and 20 of 40 Geo. 3, c. 89. It is submitted that the right construction is, that the convicting magistrate has the alternative power of inflicting imprisonment with hard labour, or a fine, according as in his judgment the case may be a serious or trifling one. That has been the construction that has been acted upon by the authorities for a long time past. Secondly, there was no appeal in this case, as the appeal clause is only applicable where a fine is inflicted. Thirdly, the recognisances to prosecute the appeal were entered into before the wrong magistrate. Sect. 21 enacts that they are to be entered into before "such" commissioner or justice, i. e. the committing one, and that was not done in the present case: (Reg. v. Brooke, 2 T. R. 190.) CROMPTON, J.-I am of the same opinion. The conviction seems to me to be good. On looking at the clauses of 40 Geo. 3, c. 89, that have been referred to, I am clearly of opinion that the statute intended to give the alternative power to the magistrate of punishing either by fine or imprisonment. "In lieu of such fine should be read "in lieu of inflicting such fine;" and then the construction is clear. It would be absurd to say that, where no sufficient goods of the party are found, there was to be imprisonment merely, and that imprisonment with hard labour might be imposed in Prentice in support of the rule.-The 40 Geo. 3, lieu of a fine. The 20th section seems extremely c. 89, s. 18, is a penal enactment, and is to be con- strong to show that, on the hearing of the offence, the strued in favour of the liberty of the subject. This magistrate is to come to a decision, whether a fine or section only gives the same power as is found in all imprisonment shall be imposed. The only answer similar enactments, viz., in the first instance to impose given to this view is the appeal clause, which brings us a fine, and then, in default of satisfaction, to imprison. to the second question, whether there is an appeal or And this view is supported by Jervis' Act, 11 & 12 not in this case. I am inclined to think that there is Vict. c. 43, ss. 19, 27. As to the discharge on the an appeal in both cases, where either a fine or imprisonground of the prisoner having appealed. [CROMP-ment is imposed. Then, supposing that a right of TON, J.-The appeal does not operate as a suspension appeal exists in this case, have we any power to disof the commitment. Buller, J., in R. v. Brooks, says that the magistrate would have no right in a case like this to commit after the appeal has been heard.] It is submitted that he would have under sect. 27 of 11 & 12 Vict. c. 43. It is unjust that a prisoner should have to undergo the sentence while an appeal is pending. COCKBURN, C. J.-I am of opinion that this rule must be discharged. It is certainly no easy task to construe an enactment like sect. 18. The more reasonable construction appears to me to be, that the super-same reasons. intendent has the alternative power either to impose a fine and imprisonment in the absence of goods of the offender whereon the fine may be levied, or, without imposing a fine at all, to sentence the offender to three calendar months' hard labour. The introductory words of the enactment look as if the justice was to have power to fine the offender, and in the event of that charge the party on entering into recognisances to prosecute the appeal? The authorities are clear that a warrant of commitment once made is not suspended by an appeal being lodged. It may be a hard thing to keep a party in prison while an appeal is pending, but the law is well established, that an appeal does not or itself suspend a warrant of commitinent: (Kendall v. Wilkinson, 4 E. & B. 680.) HILL, J.-I am of the same opinion, and for the BLACKBURN, J.-I am of the same opinion. In sect. 18, after the words, "to inflict a fine of 101. for such his, her, or their offence," the following words down to " or in lieu of such fine" should be read as one long parenthesis, and then the grammatical construction is plain, and shows that it was intended to give the alternative power either to fine or impri |