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dence for the informer. Secondly, that there was no proof of any offence having been committed by the appellant within the meaning of the statute 19 Geo. 2. c. 22, inasmuch as no evidence was given or offered to be given by the informer to shew that the casting of the mud into the Usk had any tendency to obstruct, hinder, or impede the navigation of the said river. Thirdly, that there was no evidence on which to convict the appellant; and, lastly, that the statute under which the proceedings were taken against the appellant was repealed by the 54 Geo. 3. c. 159. s. 11. by implication and repugnancy of the one to the other. And thereupon the judgment of this Court was required.

Welsby (Scotland with him), for the respondent (Nov. 17).-First, there was reasonable evidence before the Justice that the appellant was such a person as was contemplated by the act, he being the dominus criminis by whom the rubbish was discharged into the river Usk. There was

no proof that it was thrown in in such a way as to come within the limits set out in the 7th section of the 19 Geo. 2. c. 22, and that being so the Justice who heard the case might well conclude that the offence fell within the 1st section. The 19 Geo. 2. c. 22. s. 1. enacts, that "If at any time from and after," &c., "any master or owner, or any person acting as master of any ship, pink, crayer, lighter, keil-boat, or other vessel whatsoever, shall cast, throw out, or unlade," &c., "any ballast, rubbish, gravel, earth, stone, wreck or filth, but only upon the land where the tide or water never flows or runs," &c., "it shall be lawful for any one or more Justice or Justices," &c. "to summons,' &c. "the master or masters, owner or owners of any ship," &c. Section 7. provides certain limits within which the act is not to apply; and then goes on to state that "this act shall be construed and taken to prevent the mischiefs to be done in, or to, or upon the said havens, ports, roads, channels or rivers, which may anyways tend to obstruct, prejudice, incommode, hinder, or do any annoyance in the said havens, ports, roads, channels, or rivers, or prejudice the navigation therein, and not otherwise." The conviction took

place under this act, and, it is submitted, that that conviction was right. Next, it will be said that the 19 Geo. 2. c. 22. is repealed by the 54 Geo. 3. c. 159, but that is not so. The earlier act is referred to, amongst others, in the preamble to the later one, and it is there stated, that it is expedient that the earlier act should be extended as thereinafter mentioned; and then the 51 Geo. 3. c. 73, which had also been referred to, is entirely repealed. It is clear, therefore, that it was not intended to repeal, but only to extend the provisions. of the 19 Geo. 2. c. 22, and therefore the conviction may well have taken place under that act.

[LORD CAMPBELL, C.J.-There is no express repeal, and it lies upon the appellant to shew that the two acts cannot stand together.]

It was contended before the Justice, as stated in the case, that the 11th section of the 54 Geo. 3. c. 159. repealed the 19 Geo. 2. c. 22, by implication, but that section only extends the earlier act, without repealing it. The 11th section enacts, that "If the owner, master, or other, person having the charge or cómmand of any private ship of war, transport, or other private or merchant ship or vessel, lighter, barge, boat, or other craft whatsoever," &c., "or any other person or persons whatsoever, shall cast," &c. "either from or out of any such ship," &c. "any ballast, stone, slate, gravel, earth, rubbish, wreck, or filth, into any of such ports, roads, roadsteads, harbours, havens, or navigable rivers of this kingdom as aforesaid, so as to tend to the injury or obstruction of the navigation thereof,' &c., "all and every such person or persons so offending shall for every such offence forfeit and pay a sum not exceeding the sum of 10l.," &c. Therefore, the effect of this section is to extend the class of persons who may be convicted, but it does not prevent the owner of a vessel, as the appellant was, being convicted under 19 Geo. 2. c. 22. s. 1.

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intended that the liability should attach to the person who is actually on board in command of the vessel, not the owner on shore, who does not actually commit the offence. There might be many owners of a vessel, and it could not be said, that they would all be liable; here, Reeves was the person who was acting as master, and the proceedings should have been against him. Next, the conviction has taken place under a repealed statute. Taking the 1st and 7th sections together, the conviction is for throwing rubbish overboard in a way which might tend to obstruct, prejudice, incommode, hinder, or do some annoyance in the river, and there may be a penalty of not more than 57. or less than 50s.; but the 54 Geo. 3. c. 159. provides for the prevention of the same offence, and appoints a penalty of not more than 107. Then, if both the statutes are to stand together, there might be convictions for the same offence under each of them, and it must have been intended that the earlier act should be no longer in force; therefore, the proceeding ought to have been under the 54 Geo. 3. c. 159. s. 11. But the conviction, having taken place under the 19 Geo. 2. c. 22, cannot be supported under sec. 11. of 54 Geo. 3. c. 159, for an appeal is given by section 26. of the same act. Other sections also shew that the two statutes cannot stand together; as, for instance, section 17, which embodies all the provisions with regard to sunken ships, cannot stand with section 3. of 19 Geo. 2. c. 22, for the times within which the sunken ships are to be removed are different. In The King v. Davis (1) it was held, that the Black Act, 9 Geo. 1. c. 22, which made it an offence punishable with death for any person having his face blacked to hunt or kill deer, was virtually repealed by the 16 Geo. 3. c. 30, which inflicts a milder punishment for the same offence. And in The King v. Cator (2) it was held, that the 5 Geo. 1. c. 27, which made the penalty for a first offence 100l. and three months' imprisonment, and for a second offence, fine at discretion and twelve months' imprisonment, was repealed by the 23 Geo. 2. c. 13, which made the

(1) 1 Leach, C. C. 271. (2) 4 Burr. 2026.

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LORD CAMPBELL, C.J. now delivered the judgment of the Court.-If that part of the statute 19 Geo. 2. c. 22. on which this conviction was founded, be still in force, we think that the conviction would be supported by the evidence; but after a careful comparison between this statute and the 54 Geo. 3. c. 159, we have come to the conclusion, that such part of the former statute is repealed. The offence charged in the information and conviction seems to us to be described in the 11th section of the 54 Geo. 3. c. 159, and if it had not been that both the prosecutor and the Magistrate profess to proceed upon the earlier statute, the conviction might be supported on the later statute. It was contended, that section 11. of 54 Geo. 3. c. 159, as to throwing rubbish and filth into navigable rivers, is confined to navigable rivers near the public dockyards, arsenals, &c. We do not think that there is any reference in that section to the second or any other section of the act, to create such a restriction, and the offence created by 19 Geo. 2. c. 22. appears to us to be again described in 54 Geo. 3. c. 159. s. 11. But if a later statute again describes an offence created by a former statute, and affixes a different punishment to it, varying the procedure, and giving an appeal when there was no appeal before, we think that the prosecutor must proceed for the offence under the later statute. If the later statute expressly altered the quality of the offence, as by making it a misdemeanour instead of a felony, or a felony instead of a misdemeanour, the

offence could not be proceeded for under the earlier statute; and the same consequence seems to follow from altering the procedure and the punishment. The later enactment operates by way of substitution, and not cumulatively, giving an option to the prosecutor or the Magistrate. Sections 21, 23, 26. and 27. of 54 Geo. 3. c. 159, as to the recovery of penalties, the mode of convicting, the appeal, and the limitation of actions, are all material to shew that the proceeding for such an offence should be under this statute. These considerations may justify the editors of the statutes in saying, that the former statute is repealed, although some of its enactments are "extended," as well as re-enacted, in a later statute. When such specimens of legislation come before us, we are driven to form the best conjecture we can as to the intentions of the legislature; and, in this case, we think that the legislature, in passing the 54 Geo. 3. c. 159, intended that a prosecutor should not be permitted afterwards to proceed for this offence under 19 Geo. 2. c. 22. Luckily, no inconvenience can happen in future from this determination. This conviction must be quashed, but without costs.

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Imprisonment in England under a sentence of penal servitude, is an imprisonment within the proviso in the 9 & 10 Vict. c. 66. s. 1, and is not a break in a five years' residence.

Where, therefore, a man, having resided with his wife and children for more than five years in a parish, is sentenced to six years penal servitude, the wife and children, continuing to reside in the same parish, are irremovable whilst he remains in prison in England in consequence of the sentence.

Appeal against an order for the removal of Elizabeth Lintin and her five children from the parish of Branston, in

the county of Lincoln, to the parish of Potterhanworth, in the same county. The Quarter Sessions confirmed the order, subject to the following

CASE.

Elizabeth Lintin and her five children are the wife and children of Thomas Lintin; the order for their removal is dated the 6th of November 1857.

Previously to 1849 Thomas Lintin had gained a settlement in the parish of Potterhanworth (the appellant parish), by renting a tenement. At Lady-day 1849 he and his wife and children went to reside at Branston (the respondent parish). In 1851 he was summarily convicted and sent to prison, out of the parish, for three months, and immediately on his release returned to his wife and family at Branston; whilst continuing to reside there, he was, on the 2nd of June 1854, again apprehended for felony, tried and convicted, and sentenced to two years' imprisonment in the Falkingham House of Correction, out of the parish; and from the time of his second apprehension until his return to Branston on his second release from prison, he was absent from the parish two years and one month; on his second release he returned immediately to his wife and family at Branston. After remaining at Branston four months from his second return, he was, on the 24th of October 1856, a third time apprehended for felony, removed to the gaol at Falkingham, tried at the Sleaford Sessions on the 8th of January 1857, and then sentenced to six years penal servitude, and was removed in the ordinary course under warrant of the Secretary of State. Between Lady-day 1849 and the 24th of October 1856, when he was not under imprisonment, as above stated, he resided in Branston, and his wife and family resided there continuously from Lady-day 1849, until the order of removal was granted, and since.

The order for the removal of the wife and children was applied for and granted in November 1857, the husband Thomas Lintin being then away, undergoing his sentence of penal servitude. The wife stated that she had seen him in Millbank Prison at or about the time of the application for the order.

Thomas Lintin also, in 1849, purchased a house and premises situate in the parish of Branston, and from the time he purchased such estate up to the month of October 1856, when he sold it, he had a settlement by estate in the said parish of Branston.

If the Court should be of opinion that Elizabeth Lintin and her five children were irremovable under the circumstances above stated, the order of Sessions was to be quashed, otherwise to be confirmed.

Field (Nov. 20), for the respondents, in support of the order of Sessions.-The question is, whether the wife and children were irremovable by virtue of the 9 & 10 Vict. c. 66. s. 1. First, the husband had not resided for five years next before the application for the order of removal, for there was a break in his residence by his sentence and removal under the sentence of penal servitude. The Queen v. Pott Shrigley (1), as explained by Hartfield v. Rotherfield (2), shews that though a sentence of imprisonment is not a break of residence, a sentence of transportation is; and in The Queen v. Pott Shrigley, the statement in the case being doubtful, Lord Denman expressly says, the husband was "sentenced to be transported." Penal servitude is a substitute for transportation.

[LORD CAMPBELL, C.J.-A sentence of penal servitude may be carried out by imprisonment or transportation.]

Secondly, the 9 & 10 Vict. c. 66. does not apply to a case where a settlement has been acquired, as here, by estate, but was only intended to give irremovability in a parish where no settlement had been acquired.

[LORD CAMPBELL, C.J.-A person cannot be removed until he becomes chargeable, and he is equally irremovable whether he had an estate or not. There is nothing in the second point.]

Archbold, for the appellants.-The irremovability of the wife depends upon the residence and consequent irremovability of the husband. The Queen v. Sal

(1) 12 Q.B. Rep. 143; s. c. 18 Law J. Rep. (N.S.) M.C. 33.

(2) 17 Q.B. Rep. 746; s. c. nom. The Queen v. Hartfield, 21 Law J. Rep. (N.s.) M.C. 65.

NEW SERIES, XXVII.-MAG. CAS.

ford (3) having been overruled by Hartfield v. Rotherfield, the time of any kind of imprisonment is to be put out of the question altogether in computing the five years, and is neither to be included in computing the time of residence nor yet to be treated as a break in it. So that the simple question is, was the husband a "prisoner in a prison" at the time the order of removal was made? Clearly he was, for he was then in Millbank prison.

Cur. adv. vult.

Judgment was now delivered by

Imprison

LORD CAMPBELL, C.J. - In this case, which was argued before my Brother Erle and myself (4) a few days ago, we took time to consider whether, under the 9 & 10 Vict. c. 66. s. 1, imprisonment in England under a sentence of penal servitude is an interruption of the residence which confers the status of irremovability. ment, under a sentence of imprisonment, either for misdemeanour or felony, does not work such an interruption, any more than imprisonment for debt, whether the prison be within or beyond the limits of the parish of residence-Hartfieldv. Rotherfield and The Queen v. St. Andrew, Holborn (5). The effect of imprisonment is saved by the proviso "that the time during which such person shall be a prisoner in a prison shall, for all purposes, be excluded in the computation of time." It shall not reckon in the five years to give irremovability, nor work an interruption of residence. What then is the effect of imprisonment in England under a sentence of penal servitude? The counsel for the respondents relied upon The Queen v. Pott Shrigley. But there the husband of the pauper had actually been transported before the order of removal. Transportation may well be a break of residence, as the convict, when transferred, or put on board a ship to be carried to a penal settlement, can no longer be considered "a prisoner

(3) 17 Q.B. Rep. 746; s. c. 21 Law J. Rep. (N.S.) M.C. 69.

(4) Wightman, J. and Hill, J. were in the Court for Crown Cases Reserved.

(5) 12 Q.B. Rep. 106; s. c. 17 Law J. Rep. (N.s.) M.C. 170.

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in a prison," within the meaning of the proviso but he is still "a prisoner in a prison" within the meaning of the proviso while, under sentence of transportation, he is confined in an English prison. So while a person is confined in an English prison under a sentence of penal servitude we think he is "a prisoner in a prison" within the meaning of the proviso. The policy of the legislature is to encourage irremovability, and we have only to give effect to what the legislature has plainly enacted. In the present case the husband had not been transported, and he appears to have been a prisoner in the Millbank prison down to the time when the order of removal was made. The order of removal and the order of Sessions must, therefore, be quashed.

Orders quashed.

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The following CASE was stated by the Recorder of Liverpool. The prosecutor, who resided at Hartlepool, was the owner of two dogs, which he advertised for sale. The prisoner, Samuel Robinson, having seen the advertisement, made application to the prosecutor to have the dogs sent to him at Liverpool on trial, falsely pretending that he was a person who kept a manservant. By this pretence the prosecutor was induced to send the dogs to Liverpool, and the prisoner then obtained possession of them with intent to defraud, and sold them for his own benefit. The dogs were pointers, useful for the pursuit of game, and of the value of 51. each.

At the Liverpool Borough Sessions. holden in December 1858, the prisoner was indicted, convicted and sentenced to seven years' penal servitude, under the statute 7 & 8 Geo. 4. c. 29. s. 53.

* Coram Lord Campbell, C.J., Martin, B., Crowder, J., Willes, J. and Watson, B.

On behalf of the prisoner a question was reserved, and is now submitted for the consideration of the Justices of either Bench and Barons of the Exchequer, whether the said dogs were chattels within the meaning of the said section of the statute, and whether the prisoner was rightly convicted.

Littler, for the prisoner.-The obtaining a dog by a false pretence is not an obtaining a chattel by false pretences within the meaning of the statute 7 & 8 Geo. 4. c. 29. s. 53. It is clear that a dog is not the subject of larceny at common law-Lambard's Eirenarcha, b. ii. c. 7. p. 275, Dalton's Justice, 372, and 1 Hawk. P.C. 149. c. 19. s. 36. Special provisions are made by statute for punishing stealers of dogs. The statute 10 Geo. 3. c. 18. makes it a misdemeanour; the 7 & 8 Geo. 4. c. 29. s. 31. imposes a fine of 201. for the first offence, and distinctly asserts that a dog is not a subject of larceny at common law; and the 8 & 9 Vict. c. 47. also makes the offence a misdemeanour, punishable by six months' imprisonment for the first offence. These statutes shew conclusively that dogs are not subjects of larceny. The preamble to the section against false pretences points to the difficulties arising from the mode in which the offences of larceny and false pretences are connected. Then follows the enacting part, and it concludes by saying that a person indicted for obtaining by false pretences shall not be indictable for larceny on the same state of facts. The whole purview of the enactment shews that it was intended to apply only to those subject-matters which were the subjects of larceny. Further, it may be observed, that the prisoner has been subjected to seven years' transportation on this indictment, while under the statute for the punishment for dog stealing the extreme punishment would have been a few months' imprisonment.

Brett, for the prosecution.-The word "chattel" in the statute against false pretences is wide enough to include dogs. According to undoubted authorities a dog is a chattel and the subject of property1 Com. Dig. Trover,' Ireland v. Higgins (1) and Wright v. Ramscot (2). The rea(1) Cro. Eliz. 125. (2) 1 Wms. Saund. 84.

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