It is not necessary that a borough should have a separate Quarter Sessions in order to be a town corporate," within the Alehouse Licensing Act, 9 Geo. 4. c. 61. s. 1. The Justices of a borough which had not a separate Quarter Sessions appointed the 7th of September for granting licences for such borough, after the county Justices had appointed the 8th of September for their licensing meeting: Held, that a person who had given the notices required by the 9 Geo. 4. c. 61. for the meeting appointed by the borough Justices, and not for that appointed by the county Justices, was rightly licensed to sell exciseable liquors in the borough by the borough Justices, notwithstanding such Justices had not an exclusive jurisdiction, and the county Justices had so appointed their licensing meeting before the borough Justices had appointed theirs.

This was an appeal against the decision of two Justices of the Peace for the borough of Maidenhead. The following CASE was stated for the opinion of the Court, under 20 & 21 Vict. c. 4.

On the 1st of February 1858 Mr. William Nicholson, of the parish of Bray, in the said borough, appeared before the above Justices of the Peace for the said borough to answer the information of Joseph Brown, of New Windsor, in the county of Berks, bailiff, that he, the said William Nicholson, of the parish of Bray, in the said borough, did in a certain house and premises there situate, in his occupation, on Tuesday, the 19th of January A.D. 1858, permit a certain quantity of exciseable liquors, (to wit) a quarter of a quartern of gin, to be sold by retail to the said informant, to be drunk or consumed in the said house and premises, of him the said W. Nicholson, he, the said W. Nicholson, not having then and there a licence to sell exciseable liquors by retail to be consumed on the said premises authorizing NEW SERIES, XXVIII.-MAG. CAS.

him so to do, contrary to the form of the statute in such case made and provided.

On the hearing of the information, it was found that on the 19th of January 1858 the appellant J. Brown went to the house of the said Mr. Nicholson, situate in the borough of Maidenhead, and on asking for a small quantity of gin he was served by the said Mr. Nicholson with a quarter of a quartern, which Brown drank on the premises of Mr. Nicholson, and for which he paid Mr. Nicholson 2d. It was further stated, by Brown, that Mr. Nicholson had no licence to sell spirits. Mr. Nicholson then produced to the Justices a licence, granted to him by the Excise (on the authority of three Magistrates for the borough of Maidenhead, who had signed his licence), for the sale of wines and spirits, which was not objected to as being other than what it purported to be, (that is to say) a licence granted by the Excise to the said William Nicholson for the sale of wines and spirits.

The complainant, by his counsel, contended that the licence was bad, inasmuch as the Justices who granted the licence, upon the authority of which the licence to sell spirits was granted by the Excise Office, had no authority to grant such licence, because the borough of Maidenhead being one of the boroughs under the Municipal Corporation Act, 5 & 6 Will. 4. c. 76, and having a separate commission of the peace, but no separate Court of Quarter Sessions, the borough Justices have no power to grant alehouse licences; because the Justices for the county of Berks, acting for the Maidenhead division (in which division the borough of Maidenhead is situate), had, as was admitted to be the fact, appointed their annual licensing meeting by precept to the high constables before the Justices for the borough of Maidenhead appointed theirs, and that, therefore, the borough Justices had no power to appoint an annual licensing meeting, but that the application of Mr. Nicholson for a licence should have been made to the county Justices, and that the borough Justices might have sat with the county Justices, and have jointly acted on the granting of the licence to Mr. Nicholson.

It was contended, by Mr. Nicholson, that the first objection was invalid, inas

H

much as the borough of Maidenhead was not a new borough created by the act of 5 & 6 Will. 4. c. 76, but was an ancient borough, acting under ancient royal charters, and that the Magistrates for the borough, before the passing of the said act, as well as since, had, as was admitted to be the fact, always granted the licences for the sale of exciseable liquors in the borough, and had never acted conjointly with the Justices for the county in granting such licences. It was also contended, by Mr. Nicholson, that the second objection was invalid; that he was, by the 9 Geo. 4. c. 61. s. 10, compelled to give notices of his application for a licence in the months of June or July, for three successive Sundays, on the churchdoor, and the door of the house for which he intended to apply for a licence, and that in order to give this notice he had to apply to the clerk of the Justices of the borough of Maidenhead, to know the day on which it was proposed to hold the annual licensing meeting for the borough; that the 7th of September was, as was admitted to be the fact, fixed for such meeting, and that for three Sundays in the month of July Mr. Nicholson was obliged to give notice on the church-door and on the door of the house, stating that he would apply to the Justices on the 7th of September, and that the county Justices did not hold their annual licensing meeting till the 8th of September, as was admitted to be the fact, which was the day after that of the borough Justices, and that, therefore, the application was properly made. The Justices decided that Mr. Nicholson had not sold spirits without a licence, and dismissed the case; and ordered the informant to pay the costs, amounting to 7s. 9d.

The question for the opinion of the Court was, whether, upon the facts stated, the said determination of the Justices was correct.

Manisty (Lawrence with him), for the appellant (June 24).-The borough of Maidenhead has not a separate Court of Quarter Sessions, and being within the division of the county of Berks, the county Justices have concurrent jurisdiction with the borough Justices. That being so, the borough Justices, though acting under a separate commission, had no power to appoint a day for granting spirit licences, as the county

Justices had previously appointed a meeting for that purpose. Directly the county Justices had appointed a meeting to grant licences their jurisdiction attached, and it was not afterwards competent for the borough Justices to appoint an earlier day, and so attempt to supersede the jurisdiction of the county Justices-The King v. Sainsbury (1). The licence was granted, therefore, by the borough Justices, at an illegal meeting, and the respondent was, consequently, not protected, but became liable to the penalty under the Alehouse Act

-The King v. Downes (2). The Alehouse Licensing Act is the 9 Geo. 4. c. 61, and the 1st section enacts, "that in every division of every county and riding, and of every division of the county of Lincoln, and in every hundred of every county not being within any such division, and in every liberty, division of every liberty, county of a city, county of a town, city and town corporate, in that part of the United Kingdom called England, there shall be annually holden a special session of the Justices of the Peace (to be called the general annual licensing meeting), for the purpose of granting licences," &c., "and that it shall be lawful for the Justices acting in and for such county or place, assembled at such meeting, or at any adjournment thereof, and not as hereinafter disqualified from acting, to grant licences," &c. When that act was passed all "towns corporate" had Courts of Quarter Sessions, and the act, therefore, contemplated only towns corporate having such quarter sessions; and it is submitted that the authority to grant licences so given by that act to Justices acting in and for "such place" must be limited to Justices for places having a grant of separate quarter sessions. The 26th section of that act makes it lawful for any Justice before whom any penalty has been recovered under the act, to award any portion not exceeding one moiety to the prosecutor, "and the remainder to the treasurer of the county or place for which such Justice shall then act," and it was held in Dale's case (3) that the word "place," as used in that section, means a

(1) 4 Term Rep. 451. (2) 3 Ibid. 560.

(3) 1 Dears. C.C. 37; s. c. 22 Law J. Rep. (N..) M.C. 44.

place for which a Court of Quarter Sessions is held. Assuming, however, that the borough and county Justices have concurrent power to appoint a day for granting licences, there can only be one day appointed for that purpose. There cannot be two sets of Justices exercising the same jurisdiction in the same place at different times; if there be a concurrent jurisdiction, then the jurisdiction of holding the meeting to grant licences attached, as was said, by Ashhurst, J., in The King v. Sainsbury, "in those Magistrates who first gave notice of the meeting; and it was a breach of the law in the other Magistrates to attempt to wrest this jurisdiction out of their hands."

Griffits, contrà.-Even if the licence was not properly granted, the respondent, who cannot be supposed to know whether the Justices have acted beyond their jurisdiction, cannot be made amenable for this penalty. In The King v. Bryan (4), where this point was raised, but not decided, it seems to have been considered that the licence was not void as to the alehousekeeper. That case was not cited in The King v. Downes, nor was the point argued by counsel. The case of The King v. Minshull (5) would seem to shew that a licence to sell beer, obtained by fraud, would not be invalid if the fraud was not practised by the party to whom the licence was granted. Assuming, however, that the defendant would be liable if the licensing Justices had no authority to grant the licence, it is submitted that the Justices had such authority. By 9 Geo. 4. c. 43. Justices are empowered to divide counties so as to form divisions for holding special sessions. It is true there is no statement in the case that the Justices have ever divided the county of Berks under this act, but it is consistent with the facts stated, that the borough of Maidenhead is in point of fact a special division of the county for the purpose of granting licences; and, therefore, the borough Justices cannot be said not to have had jurisdiction. The case of The Queen v. Whittles (6) shews that the Court of Quarter Sessions can

take judicial notice of the petty sessional divisions of the county. In the next place, it is submitted that it is not necessary, to constitute a "town corporate" within the meaning of the 9 Geo. 4. c. 61. s. 1, so as to enable the Justices acting for such place to grant licences, that it should have a separate Court of Quarter Sessions. Even where the borough has, by the Municipal Corporation Act, 5 & 6 Will. 4. c. 76, a Court of Quarter Sessions, it has been held that the recorder has no power to hear an appeal, under the 9 Geo. 4. c. 61, against a refusal by the borough Justices to grant a licence-The Queen v. Cockburn (7). It is within the spirit and policy of the 9 Geo. 4. c. 61, and the practice has always been to give the borough Justices this jurisdiction. There is no decision to the contrary, In the case of The Queen v. Dale the question was whether the penalty should be paid to the treasurer of the county; and it may well be that, as there was no separate quarter sessions, the place was within the jurisdiction of the county, so far as regards the receipt of the penalty; but that ought not to affect the jurisdiction of the borough Justices to grant licences. With respect to the other objection, there was no collision here between the borough and county Justices, as in The King v. Sainsbury. The county Justices never assumed a jurisdiction for this purpose over the borough Justices for Maidenhead, and the notices which were given by the respondent had no reference to the licensing meeting appointed by the county Justices.

Manisty, in reply.

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Cur. adv. vult.

CROWDER, J. now delivered the judgment of the Court. This was a case stated for the opinion of the Court, by way of appeal from the decision of two of the Justices for the borough of Maidenhead, refusing to convict the respondent upon the information of the appellant. It was argued before my Brother Willes and myself. The information was laid by the appellant against the respondent for selling exciseable liquors by retail, without

(7) 4 E. & B. 265; s. c. 24 Law J. Rep. (N. .) M.C. 43, nom. The Queen v. the Recorder of Bristol.

being licensed pursuant to the 9 Geo. 4. c. 61. It appeared, on the hearing, that the respondent sold the liquors at his house in the borough of Maidenhead. He was licensed by the Excise and by the Justices of the borough. It was contended that the licence was void: first, because the borough of Maidenhead has not a separate Court of Quarter Sessions, and that only in boroughs having such Court of Quarter Sessions can the Justices grant licences; and, secondly, because the Justices for the division of the county in which Maidenhead is situate had appointed their annual licensing meeting for the 8th of September, before the borough Justices had appointed theirs for the 7th of September, on which day the licence in question was granted by them.

With respect to the first objection, it is one which we ought not to sanction without some strong ground either of authority or argument upon the construction of the statute. The borough of Maidenhead is an ancient borough, and both before and since the Municipal Corporation Act the licences for the borough have always been granted in the same manner as in the present case. The argument for the appellant was chiefly rested upon the case of The Queen v. Dale, which was said to have decided that a town, though corporate, and so a "town corporate " within the words of this act, was not within its true construction unless it had a separate Court of Quarter Sessions. The case, however, upon consideration, does not appear to us to bear that construction. The decision amounts simply to this, that "the place," to the treasurer of which the penalties under the 26th section of the Licensing Act are to be paid, is the place out of the rate upon which the costs of public prosecutions are to be defrayed. It is quite consistent with this, that the borough Justices should grant licences for the borough where they have jurisdiction, though the penalties imposed by them under the act should go in aid of the county rate. In the course of the argument, Coleridge J. is reported to have said, "town corporate means a city or town having exclusive jurisdiction," but that is not relied upon in the judgment, and we have been unable to find any

authority for so limiting the expression "town corporate." Ever since the Municipal Corporation Act, where a borough. has a separate Quarter Sessions, the appeal is not to the Recorder, but to the Quarter Sessions of the county-The Queen v. Cockburn. The arguments for the appellant have failed to satisfy us that the long-established practice consistent with the language of the act of parliament, and which is in itself evidence of what was meant and understood by the act at the time it was passed, ought to be set aside by us in a case where there can be no appeal from our decision.

As to the second objection, it was attempted to be sustained by reference to The King v. Sainsbury, where the Justices of London, having jurisdiction in Southwark, appointed a day for granting licences for that place after that on which the Justices of Surrey, who had concurrent jurisdiction there, had previously appointed their meeting for the same purpose. In that case a licence granted by the former Justices, after it had been refused by the latter, was held void, and the meeting of the former was held to be without jurisdiction, because otherwise there would have been two conflicting jurisdictions, instead of the one intended by the law. In this case no such consequence could follow, because the notices required by the act, and which were not required by the 26 Geo. 2. c. 31, the act in force when The King v. Sainsbury was decided, were given for the meeting appointed by the borough Justices, and not for that appointed by the county Justices, and the matter to be adjudicated upon by each set of Justices was not the same. Moreover, if the borough Justices have jurisdiction, it is difficult to point out how they could otherwise have exercised it. The course pursued was the usual and accustomed one, and no real interference with the county Justices is suggested, nor did any exist in fact. We may add, that it was peculiarly harsh to raise this question by proceeding for a penalty against a private individual, instead of by quo warranto against the Justices. The appeal is, therefore, dismissed, with costs.

Appeal dismissed, with costs.

The 11th section of the 54 Geo. 3. c. 159. operates by way of substitution for that part of the 19 Geo. 2. c. 22, which makes it an offence to throw out of any vessel, in a navigable river, ballast, rubbish, &c., so as to obstruct the channel or prejudice the navigation therein, and therefore a conviction under the earlier statute for such an offence is bad.

The owner of a vessel may be convicted of such an offence, though he be not on board at the time the act is done.

CASE stated by a Justice for the consideration of the Court of Queen's Bench.

The case stated substantially that an information was laid, under the 19 Geo. 2. c. 22. s. 1, against the appellant, charging him with having, on the 18th day of April 1858, near the borough of Newport, cast from a barge, being the first one towed by the Tyro, a large quantity of filth and rubbish into the river Usk. A summons, issued upon this information, came on for hearing, before a Justice, and the appellant was adjudged to pay fifty shillings and costs. The proceeding before the Justice was under the 19 Geo. 2. c. 22, and, on behalf of the respondent (the prosecutor), a witness was called, who swore, among other things, as follows:-"I know Michell. I have been in his employ. I know the Tyro steamer. Mr. Michell told me since I left her, that he had laid out a great deal of money in repairing her. I was employed on board of her at Cardiff by Mr. Michell. I met him before the dock-dredging began. He told me he wanted to get across the river to some barges. I asked him if he meant the dock company's. He said my two new barges. I took him across the river. There were two new barges there, and two of the dock company's. Only the four. On the 18th of April I saw the steamer Tyro towing barges down the river, laden with the refuse of the dock. I did not see it put in. It was mud and different sorts of stuff.

It was

She towed the two barges below the Machin-yard, and the trap was let go. I saw the barge next to the steamer discharged into the river near low water. There is water at the spot at low water. discharged into the channel of the river Usk, near to the town. I know that the steamer and barges were engaged during the month of April in discharging the dock. I saw the barge coming out of the dock lock. The stuff was different kinds of rubbish. The Usk is a navigable river; navigable at the spot where the stuff was thrown in. The steamer towed the barges back to the dock after the stuff was put in. I saw Michell here once when there was a row about the mud. On the 18th of April, Thomas Reeves was the master of the Tyro. I can't say whether he was the master of the barges. The master of the Tyro (Reeves) gave the order to let go the traps. Upon his doing so down went the stuff." Another witness swore (as far as is material to this report) as follows:-" I saw Michell in April last. He told me he was very much annoyed about the mud matter, and that the dock company had agreed to save him harmless if he discharged the mud within half a mile from the dock gates. He said that was his contract, and he would throw it up and make the dock company pay if he was stopped. He said he had brought the steam-tug and boats thereof, and he would take them away. He spoke of the Newport Dock Company. He told me that he was the contractor for dredging the dock. I have seen him here at Newport. The steamer was not named, but I thought he meant the Tyro. "Boats" meant the hoppers. I have seen the boats being dredged into the dock, and on four different occasions discharged into the river, towed by the Tyro and Neptune tugs." Other witnesses were called, who spoke to seeing the Tyro towing the barges out of the dock, and to the mud and rubbish having been discharged into the river.

The following points were raised on behalf of the appellant:-First, that the appellant was not the master or person acting as master of the steamer Tyro, or of the barges when the mud was cast into the river on the 18th of April, one Thomas Reeves being the person in command and acting as master, as appeared by the evi