EX PARTE FLINN & SONS (No. 2.) him. That seems to me to be a reasonable way of construing this section. Therefore the parties are bound to treat this application in substance as if it were an application for a transfer. Then if it is an application for a transfer, Simonds v. Blackheath JJ. (supra) decides that the justices are limited to the four grounds, the object of that being to protect the vested rights in the beerhouse. Then the case of Reg. v. Moore and others, Hertfordshire JJ., 7 Q. B. D. 542; 45 J. P. 768, decides that the justices may use the four grounds, at any rate on an application at special sessions. Therefore the matter seems to be reduced to a very small compass. They are limited to the four grounds on a transfer; they may use the four grounds on a transfer, therefore they are, at any rate at special sessions, limited to the four grounds, and may use the four grounds. Mr. Foote has stated that on an application for a temporary authority they cannot use the four grounds. I do not want in these licensing cases to decide anything outside the absolute strict matter we have to decide, but I must say that my own strong opinion at present is that they can use the four grounds as an objection at this stage. That the four grounds can be used on the application at the special licensing sessions seems not to be disputed. I think they can be also used on the application for a temporary authority. Then, what has happened? Application is made for a temporary authority, and the four grounds or any of them, if they exist, must be objected to and proved. Nobody has objected on any of these grounds, and at any rate nobody has proved any one of the four grounds. Therefore the justices had nothing before them on which they could enforce the four grounds, and they should consequently have granted the application. Appeal allowed. Solicitors for the appellants: Thorneycroft and Willis, for Baker and Thorneycroft, Bishop's Stortford. 63 J. P. 757. QUEEN'S BENCH DIVISION. October 27. LANE v. BENDALL. Weights and measures False or unjust weighing machine Weighing tea Piece of paper stuck in machine Legality of-Weights and Measures Act, 1878 (41 & 42 Vict. c. 49), s. 25. In order to facilitate the process of weighing large quantities of tea into small packets, the respondent's servants placed a piece of paper, weighing not quite so much as the bag in which the tea was afterwards wrapped, in the weighing machine beneath the scoop in which the tea was weighed, and kept it there while the tea was being weighed. Held, that the machine was false or unjust within the meaning of section 25 of the Weights and Measures Act, 1878. Case stated by justices in and for the county of London. The respondent appeared on the 3rd of March, 1899, to answer an information charging him with unlawfully having in his possession for use for trade one weighing machine which was false or unjust, contrary to section 25 of the Weights and Measures Act, 1878. The facts were as follows: The appellant was an inspector of weights and measures for the county of London, and the respondent was carrying on business under the firm name of Melrose and Company, as a tea merchant at, amongst other places, 276, Battersea-park-road. On the 6th of January, 1899, the appellant went to the respondent's shop, and found there a weighing machine which the respondent had in his possession for use for trade. When the weighing machine was so found there was a piece of paper underneath the scoop in which the tea or other article to be weighed is placed, and between the bottom of each scoop and the cross bar or cup in which such scoop rests. The effect of such piece of paper upon the weighing machine was to make it indicate weights one and a half drachms, the weight of the paper, in excess of the actual weight of the article in the scoop. In the absence of the piece of paper, the weighing machine would have shown the actual weight of the article in the scoop. At the time when the weighing machine was found with the piece LANE v. BENDALL. of paper so placed, the respondent's servants were engaged in using the same for the purpose of weighing up tea to be made into packets. It had been placed by the manager under the scoop instead of in the scale in accordance with his usual practice to facilitate and quicken the process of weighing the tea, and so causing the customer to assist in defraying the cost of the paper bag or The wrapper in which the tea is sold. respondent's servants make up on Fridays as many as 3,000 quarter pound packets of tea, and it would take them much longer to weigh out the tea for such packets if the tea were in each case first placed in the paper bag in which it is to be sold and then put in the scoop, because in such a case any adjustment to the intended quantity would then have to be made by adding to or taking from the tea in the bag. The piece of paper only weighs about half as much as the paper bag in which the tea is sold, so that in the case of quarter pound packets, each packet weighs more than four ounces and contains within one and a half drachms of four ounces of tea. It was contended for the appellant that the weighing machine in the condition in which he found it was false or unjust inasmuch as it did not correctly indicate the actual weight of the tea in the scoop. It was contended for the respondent (1) that the machine was not in itself unjust; (2) that in Harris v. Allwood, 9 T. L. R. 14; 56 J. P. 709, the legality of a custom of the trade to weigh paper with the tea had been established, and (3) the proceeding ought to have been taken if at all under section 26 of the Weights and Measures Act, 1878, and not under section 25. The justices were of opinion that the weighing machine being per se true and just could not be rendered untrue or unjust by merely using the piece of paper with it as described, and they therefore dismissed the information. Section 25 of the Weights and Measures Act, 1878, is as follows: "Every person who uses or has in his possession for use for trade any weight, measure, scale, balance, steelyard, or weighing machine which is false or unjust shall be liable to a fine not exceeding 5l., or in the case of a second offence, 107., and any contract, bargain, sale or dealing made by the same shall be void, and the weight, measure, 63 J P. 757. scale, balance, or steelyard shall be liable to be forfeited." Daldy for the appellant.-The weighing machine was, at the time when it was used, false or unjust within the meaning of section 25 of the Weights and Measures Act, 1878. The piece of paper which was stuck into the machine became in fact a part of the machine, and though the machine by itself was just the machine plus the piece of paper was clearly unjust. (See Great Western Railway Company v. Baillie, 5 B. & S. 928.) Suppose that instead of a piece of paper a piece of lead or some other substance had been placed underneath the scoop, there could then have been no question as to the illegality of the machine. That the added substance was merely paper was not material to the question. George Elliott for the respondent.—It is a well-known custom for tea dealers to weigh packets of tea so as to include the weight of the paper in which it is wrapped. What the respondent's manager did was to place on the weighing machine a slip of paper representing about the weight of the wrapper in order that the tea might be more rapidly weighed. The custom as to weighing the wrapper with the tea was upheld in Harris v. Allwood (supra). [Darling, J.— In that case the proceedings were under section 26 for wilful fraud in using a weighing machine, and the fact was that the tea was weighed in the presence of the customer. There could be no fraud when the customer was present presumably acquiescing in what the tea dealer did, and it was so held. But this case is different, because the customer was not present during the process of weighing.] The argument that this piece of paper is equivalent to a piece of lead stuck on to this machine is not good, because the piece of paper was in a sense a portion of the parcel that was being weighed. (See Carr v. Stringer, L. R. 3 Q. B. 433.) The justices have found that the machine of itself was just. The proceedings here were taken under the wrong section. The offence, if any, of which the respondent was guilty was an offence under section 26, not section 25. RIDLEY, J.-We have both come to the conclusion that this case must be sent back to the justices with an intimation that they ought to have convicted. The charge is not LANE v. BENDALL. made under section 26 of the Weights and Measures Act, 1878, and I mention that in order to get rid of the idea that the decision of the court in any way involves the respondent in a charge of having been guilty of fraudulent management in the use of weights or measures. I did not at first clearly understand the meaning of the finding which appears in the case, but I think that it does amount to a finding on a question of fact, which I, speaking personally, am very willing to accept, namely, that the respondent's employés did not adopt this practice of putting a piece of paper under the scoop for the purpose of defrauding the customers who came into the shop. I believe it to be perfectly correct when they state that that was done for the purpose of conducting their business, which was on a very large scale, and which made it impossible that they should in the presence of each customer weigh with the paper the tea that was to be furnished to him in accordance with his order. I think it was therefore unnecessary for Mr. Elliott to contend with the force that he did on behalf of his client on that point. On that point I think he succeeds. It was not called in question, but at all events he will have had the satisfaction of having cleared the character of those whom he represents of being guilty of any offence under section 26 of the Act of Parliament. But the question here is whether they are not in fact guilty of the offence with which they are charged under section 25 of the Act. Now that section is as follows:"Every person who uses or has in his possession for use for trade any weight, measure, scale, balance, steelyard, or weighing machine which is false or unjust shall be liable to a fine." The facts upon which the inspector relies for obtaining a conviction in this case are that a piece of paper similar to that which I hold in my hand, which does not fully represent the weight of the paper bag in which the tea was to be, but which represents a considerable proportion of it, was habitually and as a practice put under the scoop of the weighing machine instead of in the scale in accordance with the usual practice, in order to facilitate and quicken the process of weighing the tea. I pause here for a moment in order to say that those words are explained now in a way in which I did not understand them at first as exonerating the respondent from a charge 63 J. P. 757. of having done this with the intent to defraud. But the statement in the case goes on with this further purpose, so causing the customer to assist in defraying the cost of the paper bag or wrapper in which the tea is sold." So that what we have got is this, that this weight or measure, as used in the habitual practice of the firm, was used with a piece of paper upon it which added to the weight, and which was practically in the same condition as would be a piece of lead or a piece of any other substance which has weight of any kind at all, and that it was habitually there for the purpose of making up the weight; so used, in my judgment, the weight or balance is an unjust one. You must take it as it is used and not as it is not used. It is of little consequence to my mind for the purpose of this enquiry whether the particular make-weight or object added to the weight in the scale was actually affixed so that it required force to remove it or not. In point of fact, as my brother Darling has already said, the scales as they stood without the goods on them to be weighed did not stand level. They were therefore unjust scales as they were used. It is true that if the piece of paper had been removed from them and taken away, and if the scales had not been used with that piece of paper present, they would have been just scales, but I cannot see what weight that argument has when the case is that respondent's servants did not so use them. If the weight is just and you deliberately put upon those scales a piece of paper or lead or any other substance you like it makes them weigh unfairly. I therefore think that this is a case within the Act of Parlia ment of using for trade this scale or balance which was false and unjust as it was used. But then, says Mr. Elliott, in an ingenious argument, because it was a piece of paper that was smaller than the bag which was going to be sold with the tea, therefore they had a right to do it, because, he adds, there was a custom universally known throughout the trade, that the person who buys tea buys the tea and the paper. Now I entirely disagree with the idea that there can be any such custom. If I buy a quarter of a pound of tea, I buy a quarter of a pound of tea, and I do not agree and I cannot believe, speaking personally, that there is in this country a custom which compels a person who is buying tea to take LANE v. BENDALL. tea and paper making up the weight of the tea which he has bought, so that he gets so much less tea than he has bargained to pay for. Persons may have done it without any dishonest purpose, but it still remains the fact that those who buy tea are not to get the tea and paper. I do not agree with it. But suppose it were true that persons are in the habit of getting tea and paper instead of tea only, and that the custom is that the paper should be weighed in with the tea, that does not in the least make this into an honest balance, because I think it is sufficient to show that, as it was used, it does not show the true weight. In my opinion that is sufficient. The question that has been raised, that there may be a difference between this case and a case in which the bag is weighed in the scoop or balance in which the tea is bought, does not arise for immediate decision. In this instance the paper has been put below it. The use of the weight has not been true, it has been false. I think therefore for these reasons that the justices ought to have convicted, and that the case ought to be remitted to them with that opinion. They seem to have put their decision on this ground, if I may refer to the terms upon which they gave their decision, they say that the weighing machine per se being true and just could not be rendered untrue and unjust by using the piece of paper in the manner described. I think it could, and that in fact it was, and therefore I think, as I have already said, that the case must be remitted to them. DARLING, J.-I am of the same opinion. It appears by the case that what happened was this. This tea merchant was in the habit of selling what professed to be quarters of a pound of tea in packets. He sold them in paper, and there was not a quarter of a pound of tea in them, but there was a quarter of a pound of tea and paper together. As the case says, in order to facilitate and quicken the process of weighing the tea, the merchant's servants put under the scoop, which formed the receptacle in which the tea was placed when being weighed, a piece of paper. Now what the statute enacts shall not be done is this, you are not to use or have in your possession a scale which is false or unjust. Now what was the result of putting that piece of paper under the scoop of those scales? The result was that, if you put anything into the scoop to weigh, 63 J. P. 757. it would not give the true weight of it. The result was that if the piece of paper was put under the scoop and the scales left quiescent, with no weight on the one side, nor any article to be weighed on the other, the scales would not remain at the balance. They would be scales it is quite true, but they would not be a balance. The arm with the paper under the scoop would permanently remain at a lower level than the other. Therefore it seems to me that so long as the paper was there this was not in the true sense a balance. It remains a pair of scales, but what sort of scales, false scales? It remained an unjust pair of scales if you were going to weigh with it, and the justices themselves, although they do say per se the scales are true, also say this: "In the absence of the said piece of paper, the said weighing machine would have shown the actual weight of the article in the scoop." Now what does that come to? That amounts to saying that with the presence of the paper the scales would not show the actual weight of the article in the scoop. Then if it will not do so it is not a true and just pair of scales. Mr. Elliott sought to get out of this by saying it is perfectly true that if you tried to weigh anything with these scales such as gold dust or diamonds, you would be grossly defrauded, because you would be weighing with scales which would not give the exact weight of the article; but, he said, seeing that his client used them for nothing but tea, and seeing that in the tea trade there is a widely spread habit of selling tea and paper as tea, it remains a just scale. I confess that that reasoning is too fine for me to follow. To my mind if they are scales which do not give the true weight of what is put into them, no matter what the article may be, they are not just scales. They are false scales, and if they are false scales I think they remain false scales whether you weigh tea with them or whether you weigh other articles. They were false scales whether you were weighing with them or not. They were false scales whether you were weighing gold or whether you were weighing butter, and I cannot see that they become true scales if you weigh tea with them; if they are false for one thing they are false for all, and therefore, whatever you were weighing with them, in my opinion when you use them you are using scales which are false and unjust and Metropolis October 31. SCOTT v. CARRITT, Building line - Erection of structure beyond-" Land lawfully occupied by building or structure"-London Building Act, 1894 (57& 58 Vict. c. ccxiii.), s. 22. Land occupied by buildings or structures originally erected thereon in accordance with section 75 of the Metropolis Management (Amendment) Act, 1862, but subject to a condition that the height of such buildings or structures should not exceed one storey, is not lawfully occupied by such buildings or structures within the meaning of section 22 (2) of the London Building Act, 1894, so as to justify the substitution without the consent of the London County Council of three-storied buildings or structures on the same sites in advance of the general line of buildings in the same part of the same street as fixed under the Act of 1894. Per Ridley, J.-Land occupied by buildings or structures of one storey high originally erected thereon in contravention of 7 Geo. 4, c. cxlii., s. 140, is in a similar position with regard to the same sub-section. Per Darling, J.-Such last-mentioned land is not lawfully occupied in any sense by such buildings or structures although no means exist for punishing the original contravention. Case stated by a metropolitan police magistrate. At a petty sessions holden at Clerkenwell Police-court, in the county of London, on the 8th of March, 1899, an appeal by Mr. William Henry Scott (hereinafter called the appellant) against a notice of objection 63 J. P. 772. served on him by the respondent, the district surveyor, under section 150 of the London Building Act, 1894, to the proposed erection by the appellant of certain buildings known as Nos. 180 and 182, Pentonville-road, in the said county of London, beyond the general line of buildings in the said road, contrary to section 22 of the said London Building Act, was heard and determined by me, the said parties respectively being then present, and upon such hearing it was ordered that the appeal should be dismissed with costs, and the objection of the district surveyor affirmed, subject to the following case :— 1. The appellant, William Henry Scott, is the owner of the premises known as Nos. 180 and 182, Pentonville-road, situate in the county of London. 2. The appellant being desirous of rebuilding both the said premises applied to the London County Council on the 5th of July, 1898, for their consent to the erection of the said buildings to the line of frontage of certain existing buildings one storey high, which had been erected on the forecourt of the said premises, under the circumstances hereinafter mentioned. On the 4th day of August, 1898, the London County Council informed the appellant that they refused to grant their consent to the erection of the said buildings to the said line of frontage. 3. The appellant on or about September, 1898, caused plans to be prepared showing the extent of the then existing buildings, and submitted the same to the respondent, the district surveyor, under section 43 of the said Act, who certified such plans to be correct. By a document dated the 5th of September, 1898, the appellant applied to the London County Council to sanction the proposed new buildings as deviations from the said certified plans, as in the said documents set out, under section 43 (2) of the said Act. 4. The London County Council by letter dated the 15th of November, 1898, declined to consider or give any decision on the said application of the 5th of September, on the ground that the proposed deviations from the certified plans were not such as were contemplated or referred to in section 43 (2) of the said Act. 5. On the 30th of November, 1898, the superintending architect of the London County Council certified the general line of buildings in that part of Pentonville-road |