On the 11th of June, at the Petty Sessions of Blackpool, Margaret Kenyon appeared before the Justices in obedience to, and to take her trial on a summons charging her with a violation of the said bye-law; and at the hearing of the said summons it was proved that, on the 28th of May, the said Margaret Kenyon was on the said sands between high and low water-mark, and was then and there the person attending certain licensed asses, and plying for hire at a place between twenty and thirty yards from the "Hulking," and about the same distance from the nearest of the said stands, and that such place was not one of the stands aforesaid, or a railway station. The defence by the said Margaret Kenyon was, that she had a right to do what was proved; that the Justices had no jurisdiction, and that she was not guilty of any offence. The Justices convicted her in the penalty of 5s. and costs, to be recovered by distress if not paid, and in default of distress fourteen days' imprisonment. The grounds of their determination were that the bye-laws were valid; that they applied to the locus in quo, and that the facts proved were a violation of the 5th bye-law. Milward, for the respondents, contended, that the beach was within the limits of the jurisdiction of the local board of health, and relied on the local act, 16 & 17 Vict. c. xxix. ss. 3, 17, 21, 81. and 85. (3). Wheeler, for the appellants, argued, first, that the conviction could not be supported on the facts; secondly, that the bye-law was not valid; thirdly, that the beach at Blackpool was not within the jurisdiction of the local board of health. He cited The Queen v. Musson (4), as shewing that part of the sea shore that lies be Sec (3) By section 3. the act is put in force within the district established by the Order in Council. Section 17. empowers the local board from time to time to license vehicles and animals to ply for hire within the limits of the act, "and on the beach or coasts adjoining or near thereto." Section 21. regulates what shall be specified in such licence. tion 81. enacts, "that the local board may from time to time license any person to dig, carry away, or move any gravel, shingle, &c. from the beach or shore at Blackpool, for such payment to be made to the local board, and on such terms and conditions as they think fit." Section 85. empowers the local board to maintain the sea-walls and embankments within the district. (4) 27 Law J. Rep. (N.s.) M.C. 100. tween high and low water-mark is extraparochial. Milward replied. MARTIN, B. (5).-We are unanimous that the only question on which there is any doubt is, whether the 5th bye-law is valid. If we were to construe these cases in the manner contended for by Mr.Wheeler, instead of the act of parliament being, as it was intended to be, most beneficial for the subject, it would be the greatest possible nuisance. We are not to examine the case as if it were a special verdict, but to look at it and see if a sufficient case is made out to warrant a conviction. I am of opinion that it does. With respect to the question of the validity of the bye-law we will take time to consider our judgment. WATSON, B.-I am of the same opinion. The statute requires two things to be stated: first, the evidence; secondly, the grounds of the decision. The evidence, as stated in the case, is ample to shew that there was a plying for hire, and the grounds of the decision, in my opinion, are good. We must, in all these cases, look at the substance of the case. With regard to the second case, I think the act of parliament intended to include the sea-shore in the district. The intention was to provide regulations for a rapidly increasing wateringplace. For these reasons the objections urged against the conviction cannot prevail. The question as to the bye-law is a general question, and it is necessary to look at the authorities before giving our judgment. Except as to the point of the validity of the bye-law, judgment must be for the respondent. CHANNELL, B. concurred. Cur. adv. vult. The judgment of the Court was now delivered by WATSON, B.-These were convictions under the Blackpool Improvement Act. After the argument we delivered our opinion on all the points of these cases, excepting one, respecting which we took time to consider, viz. as to the validity of the bye-laws made under the provisions of the 16 & 17 Vict. c. xxix., the Blackpool (5) Pollock, C.B. had left the court. Improvement Act. The provision of that act, under which the bye-laws were made, was as follows:—“The local board of health may from time to time (subject to the restrictions of this act) make byelaws for all or any of the purposes following," amongst other purposes there is this: "For fixing the stands of hackney carriages and animals, and the distance to which they may be compelled to take passengers not exceeding the district." The following bye-law was made under the act: "that the several places in the district where painted boards shall from time to time be placed by the said local board of health to distinguish them as stands, shall be the stands for such number of carriages, sedan chairs, horses, asses and mules as shall be mentioned on such boards; and no driver of or person attending any such carriage, sedan chair, horse, ass or mule, shall place the same on any other than some one of such stands; or shall take his station on any stand already occupied by the number assigned to such stand, or shall ply for hire in any of the streets, lanes or places within the said district (except on one of such stands or in the railway station), under the penalty for every such offence of any sum not exceeding 40s." And it was contended, on the part of the defendant, that the bye-law was bad, insomuch as it did not on the face thereof certify the exact locality where the stands were to be; and that it was unreasonable and contrary to the meaning of the act to allow the local board to fix the places for stands from time to time by putting up boards. The old rule of law laid down in Com. Dig. tit. Bye-Law,' (C, 7), " if a bye-law is bad in part it is bad in the whole," is qualified by the case of The Fishermen of Faversham (6), that is to say, it is only bad when mixed up together; and where one part is bad and the other good, the part which is good may stand. We think that-looking to the object of the act in fixing stands, namely, to prevent drivers of carriages and persons attending horses, mules and other animals from being a nuisance to the public, by plying over the whole of the streets in the town, instead of only over streets where (6) 8 Term Rep. 352. boards are fixed, and as it may be necessary to add to or reduce the number of stands or to alter, at different seasons of the year, the place where these stands are to be the mode of fixing the stands is in accordance with the proviso and meaning of the act. We think it is not unreasonable to leave such a power in the local board, who are the representatives of the ratepayers of the town. It would not be reasonable that upon every alteration to be made from time to time as to the stands, a fresh bye-law should be made, and a fresh notice given, and a fresh reference to the Secretary of State. That could not be contemplated by the act. We, therefore, think the convictions are good in both cases. 1859. April 19. Convictions affirmed. ACKROYD AND ANOTHER. Justice of the Peace-Action Excess of Jurisdiction-Irregularity-Signing Conviction and Warrant-11 & 12 Vict. c. 44. ss. 1, 2, 13. The defendants, Justices of the Peace, convicted the plaintiff in a penalty of 21. and costs, or two months' imprisonment. Against this decision, which was given orally, the plaintiff gave notice of appeal and immediately left the court. A conviction and warrant of commitment were afterwards drawn up, in which blanks were left for the amount of costs to be inserted, and so signed by the defendants. The blanks were afterwards filled up by the Magistrates' clerk, and the plaintiff was arrested on the warrant, when he, for the first time, became aware of the amount of costs:-Held, that the signing in blank by the defendants was a mere irregularity and not an excess of jurisdiction; and that the plaintiff having brought an action for false imprisonment was rightly nonsuited, under the 11 & 12 Vict. c. 44. s. 1. The declaration in this action contained two counts: the first being for an assault and false imprisonment, and the second for maliciously and without reasonable or probable cause causing the plaintiff to be arrested. The defendants, who were Justices of the Peace for the county of Chester, pleaded "not guilty by statute," and paid 2d. into Court under section 13. of the 11 & 12 Vict. c. 44. At the trial, before Bramwell, B., at the last Spring Assizes for the county of Chester, it appeared that the plaintiff had been summoned before the defendants at the petty sessions at Nantwich, for a trespass in the daytime in pursuit of game, under section 30. of the 1 & 2 Will. 4. c. 32. At the hearing, a claim of title was set up, and the summons was dismissed. A second summons for a trespass on the same day, on a different close, was then gone into; no claim of title was set up, although the complainant's witnesses were asked some questions on the point on cross-examination. The plaintiff was convicted in a penalty of 21. and costs, or two months imprisonment with hard labour. Against this decision, which was given orally, the plaintiff gave notice of appeal and left the court. The conviction and a warrant of commitment were subsequently drawn up by the Magistrate's clerk, and signed by the defendants, blanks being left for the amount of costs. This amount was inserted by the clerk after the signatures of the defendants had been affixed (1). The plaintiff was subsequently arrested on the warrant, when, for the first time, he was informed of the amount of costs. The appeal having been prosecuted and the conviction quashed, the present action was brought. On these facts the learned Baron ruled that, with respect to the first count, the Magistrates were acting within their jurisdiction; and with respect to the second count, that there was no evidence of malice to go to the jury, and directed a nonsuit. M'Intyre now (Easter Term, 1859) moved to set aside the nonsuit, and for a new trial. The plaintiff had no notice of the amount of costs until he saw it in the warrant, and had, therefore, no opportunity of paying them. Then, the conviction was signed in blank, and, therefore, bad, and the arrest under the warrant (1) Whether the Magistrates on giving their decision specified the amount of costs, was disputed. The Court in refusing the rule treated the fact as immaterial. illegal. The defendants acted without jurisdiction in issuing the warrant. Then a claim of title was raised at the hearing of the first summons, and the second summons was part of the same transaction. LORD CAMPBELL, C.J.-There ought to be no rule on this point (2). By the 11 & 12 Vict. c. 44. s. 1, where an action is brought against a Justice for an act done by him within his jurisdiction, malice must be alleged and proved. Now, here the Magistrates were clearly acting within their jurisdiction; although the signing the warrant in blank was irregular, it was no more than an erroneous exercise of jurisdiction, and not an excess. ERLE, J.-I am of the same opinion. The conviction may be drawn up at any time before it is acted upon. CROMPTON, J. and HILL, J. concurred. 1859. April 30. S Pawnbrokers CASWELL, appellant, v. MORGAN, respondent. Common Informer Party Complaining-Party Aggrieved— 39 & 40 Geo. 3. c. 99. ss. 26, 28, 29. A common informer, who lays an information against a pawnbroker for an offence under the 39 & 40 Geo. 3. c. 99, is entitled to a moiety of the penalties imposed by section 27. on the party so offending. This was a case stated by the Magistrates at Petty Sessions for the opinion of the Court. The appellant had been convicted of an offence under the Pawnbrokers Act, namely, for not stating truly upon the ticket the sum advanced upon the goods pledged, on the complaint of the respondent, who was not the party who had pledged the goods, or the churchwarden or overseer of the parish where the offence had been committed. (2) There was other evidence in the case which it was contended ought to have been left to the jury on the question of malice, and on this point the Court granted a rule nisi, which was subsequently (Trinity Term), on cause being shewn by Welsby, discharged. The question was, whether a common informer might proceed under the act for the penalties thereby imposed. Scotland, for the respondent. The question here is on the meaning of the 27th, 28th and 29th sections of the Pawnbrokers Act, as to who may be the informer against a pawnbroker for an offence under the act. In this case the informer was neither the party aggrieved, nor the overseer or churchwarden of the place where the offence was committed. [LORD CAMPBELL, C.J.-Generally, when the penalty is given to a common informer, the statute gives it by express words.] That is so when the penalty is to be recovered by action. But the 29th section, which prohibits persons convicted from prosecuting or informing, would save the pawnbroker from any prosecution if the party aggrieved came within that section, and a common informer or stranger was not allowed to prosecute or inform. [HILL, J.-Do you suggest any distinction between the words " 'prosecute" and "inform" ?] Yes; "prosecute" applies to the party aggrieved; "inform," to any one. The 26th section is general in its terms, and gives a moiety of the penalty to the party complaining, who need not be the party aggrieved. This Lush, for the appellant.-There is nothing in this statute which gives a common informer the right to recover any of these penalties. In order to enable a common informer to sue at all, he must be expressly authorized by the statute so to do. is a case of a private wrong; it is done to the party pledging the goods. The 26th section gives one moiety of the penalty to the party complaining; that, primá facie, must mean the party aggrieved. Then, by the 29th section, if the party aggrieved shall have been convicted of any of the offences therein specified, he is disabled from prosecuting or informing. He may go before a Justice, who will order the churchwardens or overseers to prosecute at the expense of the parish, as provided. by section 28. LORD CAMPBELL, C.J.-The respondent is entitled to our judgment. The just construction to be put upon the 26th section is, that the party who makes the complaint, whether he be the party aggrieved or not, shall be entitled to a moiety of the penalty; and this will give a rational construction to the 29th section. It would be strange to say that the only object of the 29th section was to prevent a person who has been aggrieved from prosecuting, because at some period of his life he had been convicted of any of the offences there stated. Looking at the language and the general scope of the act, I think the appellant was liable to be proceeded against by a common informer, and the conviction therefore good. HILL, J.-I am entirely of the same opinion. The statute does not say that the penalty shall be recovered only by the party aggrieved; on the contrary, the matter is left at large by the 26th section, which is general in its terms, the only restriction being on persons convicted of fraud, or of obtaining money under false pretences, or of felony, by the 29th section. Therefore, according to the language of the 26th section, it is perfectly clear that a common informer may inform and recover a moiety of the penalty. In construing this act, we must regard not only its plain words, but its scope and intent; and looking at those, there can be no reason why the legislature should have enacted that a common informer should not recover; on the contrary, many of the acts made offences are of such a nature that the protection of the public requires, that pawnbrokers should be liable at the suit of a common informer. As to the necessity of the party aggrieved being the complainant, there are many cases in the books which shew the true test. I will only refer to one, that of Tarry v. Newman (1). In the present case I think the complaint was well made and the conviction proper. Judgment for the respondent (2). (1) 15 Mee. & W. 645; s. c. 15 Law J. Rep. (N.S.) M.C. 106. (2) Wightman, J. was sitting at Nisi Prius, and Erle, J. in the Court of Criminal Appeal. Larceny-Pawnbroker's Duplicate. Stealing a pawnbroker's duplicate is larceny. It may be described, in an indictment for larceny, as a warrant for the delivery of goods; since the Pawnbrokers Act, 39 40 Geo. 3. c. 99, authorizes and requires the pawnbroker to deliver the goods to the person producing the ticket. It may also be alleged to be a pawnbroker's ticket, or a piece of paper; for it is evidence of title to a specific personal chattel, the property in possession of the pawner, and consequently does not come within the common law rule, that larceny cannot be committed of documents concerning title to land or mere choses in action. The prisoner was tried, before me, at the last Kent Spring Assizes, 1859. The indictment was for larceny and receiving. The first count, larceny of a warrant for delivery of goods, viz. the delivery of a watch; second count, of a pawnbroker's ticket; third count, of a piece of paper; fourth count, the receiving of all these, knowing them to have been stolen. Α pawnbroker's ticket, of which the following is a copy, was stolen :— "Geo. Gegan, 41, High Street, Brompton. The Queen person producing the ticket. v. Fitchie (1) bears on the point. It is also a chattel, properly described as a pawnbroker's ticket; supposing it to be lost, the pawnbroker is bound to supply a fresh ticket. A pawnbroker's duplicate is evidence of title to a specific personal chattel, and is therefore different from a mere chose in action, or an agreement which is evidence of a chose in actionThe Queen v. Watts (2). It is also a piece of paper; and, being of some value to the owner, is capable of being made the subject of larceny-The King v. Bingley (3). Cur. adv. vult. Judgment was now delivered by CROMPTON, J.-We are of opinion that this conviction is right, and ought to be affirmed. The question is, whether a pawnbroker's ticket, in the usual form, is the subject of larceny, and is properly described as a warrant for the delivery of goods, a pawnbroker's ticket, or a piece of paper. We think that the instrument in question is a warrant for the delivery of goods within the meaning of the 7 & 8 Geo. 4. c. 29. s. 5, and that the stealing of such a document is an offence subjecting the offender to the same punishment as if he had stolen chattels of the like value as the value of the goods mentioned in the document. Probably the word "order" in this section would require that the instrument should contain a direction from one person to another to deliver or transfer goods; but we think that the word "warrant," as applied to the delivery of goods in this section, has a wider signification, and comprehends any instrument which warrants or authorizes the party holding the goods to deliver them, and requires him so to do. The Pawnbrokers Act, 39 & 40 Geo. 3. c. 99, seems to give this effect to the instrument. By the 15th section of that statute, the person producing such ticket as owner, or as for the owner, is to be deemed, as far as the pawnbroker is concerned, to be the owner, and the pawnbroker is expressly directed and required (1) 1 D. & B. 175; s. c. 26 Law J. Rep. (N.S.) M.C. 90. (2) 1 Dowl. & L. P.C. 326; s. c. 23 Law J. Rep. (N.S.) M.C. 56. (3) 5 Car. & P. 602. |