REG. v. JOHN C. SAUNDERS. principal grounds on which hearsay evidence is objectionable. The law of hearsay evidence in England is peculiar, but that is the rule. Then it is suggested that the questions were immaterial. Immaterial in what sense? Is it possible to say that they were immaterial in the minds of the jury? It is impossible for us to say that they may not have had an effect on the jury. It is important to insist on the rule against the admissibility of hearsay evidence, except in the very limited number of recognised exceptions, and we must see that the law is not strained. In civil cases it was not until the rule (O. 39, R. 6) that it did not often occur that there had been a miscarriage of justice by reason of a misdirection, or evidence wrongly admitted. The rule is as follows:-"A new trial shall not be granted on the ground of misdirection, or of the improper admission or rejection of evidence. . . unless in the opinion of the court to which the application is made some substantial wrong or miscarriage has been thereby occasioned in the trial." There is no such rule in criminal cases. If inadmissible evidence has been received, the verdict of the jury, based we know not how far on such inadmissible evidence, cannot be allowed to stand. This is another example of the scrupulous care of the law of this country that persons shall only be convicted on admissible evidence. Here there has been a miscarriage of justice, but it is not for that reason that we ought to strain the law.

WILLS, J.-I am of the same opinion. I share my lord's opinion that it is regrettable that these two persons should escape. There was ample evidence to support the conviction, and if the evidence objected to had not been tendered a conviction would probably still have followed. This evidence was material to the matter before the court. However much we may regret the failure of justice in a particular instance, we must look far beyond that and take care that sound principles are not violated in particular cases. In this case the indictment against these two prisoners was for conspiracy to obtain goods by false pretences. In substance the case was that the defendants were ordering goods they had no business to order at all. Some of the goods obtained by the prisoners were sent to Aylesbury, and from there found their way to St. Ives.

63 J. P. 151.

It was material to show that at St. Ives no real business was carried on, that the real use of the St. Ives house was as a storehouse only where these goods so obtained might be got rid of. Under these circumstances it was most material to show what sort of business was carried on at St. Ives, that goes to the root of the whole matter. The proper evidence would have been to call the people from the neighbourhood to say that no business had been carried on there during the time that they had observed the place; those people could have been cross examined. Instead of that the deputy chief-constable was called and asked, "Did you go and ask other people" (for that is the meaning of the question he was asked) "what was going on there, and did you as a result of your questions find out that no business had been done there?" That seems to me to be hearsay evidence of the very worst character, and the question violates one of the most elementary rules of evidence. A more dangerous illustration could not be found than that evidence of such a kind should be given by an ordinary constable; I do not speak of this particular case where the evidence was given by a deputy chief-constable, a person of much higher position than an ordinary constable; such evidence would be most dangerous. The evidence is said to be good, because the question may mean, "Did you make inquiries of persons who have been called as witnesses?" That seems to me to be equally objectionable, it is just as inadmissible whether the question had reference to inquiries made of persons who had been called or of persons who had not been called as witnesses. Counsel has argued that, even if the question ought not to have been asked, nevertheless it was immaterial. I do not agree with that. There is no authority as far as I know that, because a question is immaterial, yet it may be asked. It often happens that a point that is strictly immaterial goes a long way towards affecting the mind of the jury. On these grounds I quite agree that it is impossible to support this conviction; I regret it, as I said before, but I feel the importance of upholding the cardinal rule that hearsay evidence and second-hand evidence are not to be given.

LAWRANCE, J.-I am of the same opinion, The evidence is inadmissible on the ground that it is hearsay evidence, and of a very

REG. v. JOHN C. SAUNDERS.

objectionable class. It seems to me that there was ample evidence for the jury to act on without this evidence. It is clear that it would have a great impression on the minds of the jury if it could be shown that no bonâ-fide business was carried on at the St. Ives shop. That was the effect of the evidence of the deputy chief-constable, and I should think that the object of the question was to put the matter beyond any doubt whatsoever. If there had been any doubt before, such evidence would put it beyond all doubt. The evidence was most objectionable and was inadmissible. I share the regret of the court that the two men should escape.

BRUCE, J.-I am of the same opinion. The evidence is hearsay and is clearly inadmissible. The evidence went to show that the goods were not disposed of in the ordinary way of trade, and so would tend to show that they were not obtained in the ordinary way of trade. The question, "Did you make inquiries ?" really amounts to "Did you put questions to other people?" That seems to me to be the reasonable construction of the question; if that is so, the evidence then admits, not the observation of the person himself, but his version of the statements made to him by other persons.

KENNEDY, J.-The witness has compendiously stated, through his mouth, evidence that he can only have learnt from others. The law is stated in Roscoe's Criminal Evidence (12th edit.), p. 22: "Evidence of facts with which the witness is not acquainted of his own knowledge, but which he merely states from the relation of others, is inadmissible upon two grounds. First, that the party originally stating the facts does not make the statement under the sanction of an oath; and secondly, that the party against whom the evidence is offered would lose the opportunity of examining into the means of knowledge of the party making the statement." To that law there are well-known exceptions, but no exception comes near this kind of case except those cases where it is necessary to establish a fact, such as the absence of a person from a place, where the absence is not the fact in issue to be established, but the object is to establish the fact that diligent search has been made. (Crosby v. Percy, 1 Taunt. 364.) If this kind of evidence were to be permitted, assume that the

63 J. P. 151.

defence was an alibi, in which it was sought to make out that the prisoner was in a particular town when the offence was committed elsewhere, the Crown might then call a police constable to say he had made inquiries in that town and had found no one who had seen the prisoner there at that time; that would be the summing-up of the result of his inquiries of persons living there. I am quite clear that this is hearsay evidence of a kind for which there is no justification.

The court then considered the question whether it could quash the conviction against James Saunders, the question on the case before it relating only to John C. Saunders, though the same principle applied equally to both James and John C. Saunders.

"

Lord RUSSELL OF KILLOWEN, L.C.J. — The court thinks it has power to deal with the case of James Saunders, although no question as regards his conviction is raised in the case before us, because John C. Saunders was alone represented by counsel, at whose instance the case was stated. We think we have power to deal with conviction of James Saunders. The authority of the court is restricted to the questions of law reserved by the case, but the section of the Act (11 & 12 Vict. c. 78), s. 2, goes on and the said justices . . . shall thereupon have full power and authority to hear and finally determine the said question or questions, and thereupon to reverse, affirm, or amend any judgment which shall have been given on the indictment . . . or to make such other order as justice may require." It is apparent that the question of the admissibility of the evidence is exactly the same in the case of James Saunders as in that of John C. Saunders. It is clear that it is a mere question of form as to how effect is to be given to our judgment. One way would be to send the case back to be re-stated as to both the defendants; that would involve delay. Another way would be to inform the Home Secretary of our decision, but he could not quash the conviction, he could only remit the sentence. That course might not involve any injury in this case, but there might be cases where it would. If it was a doubtful question whether the law with respect to one prisoner might or might not affect the other prisoner, this court would not interfere. Here, where it is clear that the law affects both the prisoners, we think it a proper case in which the court can quash

REG. 2. JOHN C. SAUNDERS. the conviction as against James Saunders and John C. Saunders.

Conviction against John C. Saunders and

James Saunders quashed.

Solicitor for the prosecution: Solicitor to the Treasury.

Solicitors for the defence: Sole, Turner and Knight, agents for Papworth and French, Cambridge.

63 J. P. 164.

HOUSE OF LORDS.

November 28, 1898.

MAYOR, ETC., OF NEW WINDSOR AND

ANOTHER v. TAYLOR.

Highway-Bridge-Toll by prescriptionStatutory toll-Effect of statute conferring toll upon prior prescriptive right -Windsor Bridge Acts (9 Geo. 2, c. xv.; 59 Geo. 3, c. cxxvi. ; 5 Vict. c. viii.) The Corporation of Windsor were entitled by prescription to a franchise to levy certain tolls upon Windsor Bridge. In 1734 an Act of Parliament was passed which authorised them to levy the ancient tolls with one small alteration. In 1819 another Act was passed which repealed the former Act and authorised the corporation to levy certain tolls which differed materially from the ancient ones. The latter Act was temporary, and expired in 1874. Held (affirming the decision of the Court of

Appeal, 62 J. P. 5), that upon the passing of the first Act, or, at any rate, upon the passing of the second Act, the ancient prescriptive title to the tolls was merged in and extinguished by a new statutory title; and that, therefore, upon the repeal or expiration of the Acts conferring the statutory title, the prescriptive title did not revive. This was an appeal from the decision of the Court of Appeal, reported at 62 J. P. 5.

Prior to the passing of the Act 9 Geo. 2, c. xv., the Corporation of Windsor were liable, ratione tenure, to repair the then exist. ing bridge over the Thames at Windsor, and were entitled by prescription to levy certain tolls upon cattle, vehicles, and boats passing over or under the bridge. In the year 1734 the above-mentioned Act was passed, which recited the ancient tolls and made one small

63 J. P. 164. alteration in them, and gave the corporation additional remedies in case of nonpayment. In 1819, by the Act 59 Geo. 3, c. cxxvi., after reciting that the ancient bridge was ruinous and the existing tolls insufficient for rebuilding it, it was enacted that the bridge should be rebuilt and that the corporation should have power to levy certain tolls, which differed in many respects from the ancient tolls, and a power of distress was given in case of nonpayment. This Act was temporary, and expired in 1842. The old bridge was accordingly pulled down and a new one built in its place. In 1842, by the Act 5 Vict. c. viii., the Act of 1819 was extended till 1873. From that year onwards, although the Acts had expired, the corporation continued to charge the ancient prescriptive tolls on the ground that, as the Acts were only temporary, the ancient tolls were not extinguished by them, but remained dormant during the operation of the Acts, and revived again on their expiration. The plaintiff, desiring to raise the question of the legality of the tolls on behalf of the council, paid the toll under protest, and brought an action against the corporation and their toll collector for the return of the money and for a declaration that the corporation were not entitled to charge any tolls in respect of the bridge.

The action was tried before Lord Russell, L.C.J., who gave judgment in favour of the corporation. This decision was reversed by the Court of Appeal (4. L. Smith, L.J., Rigby, L.J., and Collins, L.J.), who ordered judgment to be entered for the plaintiff, with a declaration that the corporation was not entitled to "levy any tolls for the passage of Windsor Bridge, or to close the passage of the bridge until payment of toll or otherwise." (See 62 J. P. 5.) The corporation appealed.

Crackenthorpe, Q.C., and Sir Sir Edward Clarke, Q.C. (with them Courthope Munroe), for the corporation, contended that the right to take toll was not extinguished, citing Co. Litt. 115a; Vin. Abr. Toll, vol. 20, p. 297; Com. Dig., 5th edit., p. 99, title " Prescription," F. 3, and referring to the local Acts 9 Geo. 2, c. xv, 59 Geo. 3, c. cxxvi, and 5 Vict. c. viii. ; Islington Market Bill, 3 Cl. & F. 513; Mayor, &c., of Manchester v. Lyons, 22 Ch. D. 287.

Witt, Q.C., and Danckwerts, for the respondent, were not called upon to argue.

MAYOR OF NEW WINDSOR v. TAYLOR.

Earl of HALSBURY.-There are one or two points in this case which may admit of subsequent investigation and decision, but there is one point which, to my mind, is perfectly conclusive, and which, it appears to me, is the only point necessary for your lordships to decide: I mean the question of the effect of 9 Geo. 2 upon the then existing franchise, and the consequent decision that must follow upon the repeal of that statute. I am the more desirous of confining what I have to say to the effect of that statute, and the consequences following upon the repeal of that statute, because I cannot help feeling that this point could not have been so prominently before the mind of the Lord Chief Justice as the other matters that appear to have been urged. To my mind the question is one which, when dissociated from the other question with which it has been somewhat clouded, is a comparatively simple one. By prescription the appellants had the right to take certain tolls. They had that right by prescription, and the right of a tenant under the lord of the franchise to do certain things could not be contested; but the lord of the franchise had also certain rights in respect of the man who was under obligation to him, and, if he had so pleased, and if there had been misconduct in the nature of a fraud, either upon him or upon those persons against whom the franchise was exercised, he might have had power to forfeit. That right was an important right, and a right which, in early times, was not infrequently exercised, but, in this case, the moment the Act of 9 Geo. 2 was passed that right was gone. That question does not depend on the mere identity of the sums to be exacted from the public if there had not been a single change in any part of the things that were to be done, or powers to be exercised, the nature of the right itself, the root of the title under which a person invested with that right could use it against the general public was gone as originally granted.

The person

empowered to take the toll was clothed with a new parliamentary authority, and was, in fact, acting under a statute. If there had been any misconduct in the user of the franchise, as it is then inaccurately called, the lord of the franchise would have no right to intervene; the person possessed of what was the new parliamentary right might act in defiance of the lord of the franchise. It is, therefore, clear to my mind, beyond question

63 J. P. 164.

that the nature of the right itself is completely altered by turning it into a statutory right, and that the right must continue, if it does continue, by virtue of the statute, without any power of revival or reverter back to its original nature. If that is the true viewand, by the Vice-Chancellor of the Duchy and by Sir George Jessel, I think the true view has been pointed out with great clearness (1882), 22 Ch. Div. 294, 301n-it is hopeless to contend that the original franchise of these appellants is continued by reason of the statute which gave them the new right being repealed. On the contrary, the effect of that is that all their right is gone. I desire to place my judgment upon that ground, and that ground alone. Where a merely temporary statute supersedes an ancient franchise it seems to me that it would be open to argument whether the mere fact of giving increased tolls for a short period, with a reference to Parliament as to what they may do in the next session following the expiration of the statute, does not point to an intention by the Legislature that, unless some new application has been made to Parliament, and subject to that application, the ancient dues are intended to be absolutely got rid of. I say I do not decide that at present, it being unnecessary in this case, because the effect of the repeal of 9 Geo. 2 is conclusive here; but I do not wish it to be understood, as far as I am concerned at all events, that the case would be unarguable apart from that consideration. It is open to argument whether the Legislature did not mean," We do not intend that these rights, whatever they are, shall continue unless renewed by Parliament; if they are not renewed by Parliament, they are intended absolutely to disappear." That is an argument which may well have to be considered in any future case. At present, the one proposition we have to deal with is that the right to take tolls rested entirely on 9 Geo. 2, and from the time when that Act was repealed, except in so far as the right to take the toll was continued by the temporary Acts, the right was gone; all that the appellants were entitled to rely upon was their statutory power, and as, by the hypothesis, the statutory power has expired, it appears to me that all power to levy a toll of any kind is gone. Therefore, I move your lordships that this appeal be dismissed with costs.

MAYOR OF NEW WINDSOR v. TAYLOR.

Lord WATSON.-I desire to rest my judg. ment in this appeal entirely upon the view which I take of the effect of the Act 9 Geo. 2, c. xv., upon the franchise which was previously possessed by the appellants. I do not think it necessary in this case to consider the point, which does not seem to me to arise, how far the Legislature can add provisions to the terms of a franchise, leaving the franchise standing and unimpaired. That they may do so is possible-I do not intend to express any opinion to the contrary-and if the Act of George 2 had merely been an enactment to the effect that was contended by Mr. Crackenthorpe, it is quite possible that the franchise might have outlived the passing of that statute. But, when the substance of the Act is looked to, there are a great many considerations which, to my mind, clearly point to this result-that the Legislature did not intend the franchise to subsist and be an available right to the holders; that their intention was to substitute for it a statutory right which was, at least, equivalent to the franchise, and to leave no other right standing; to regulate the rights of the holders of the franchise or the rights and obligations of those who used their bridge. The enacting clause is very plain to this effect: "That it shall and may be lawful to and for the person or persons appointed. . . by the said mayor, bailiffs and burgesses, or their assigns, to collect the said tolls" (what are the said tolls? The tolls which they are accustomed by virtue of their franchise to collect), "and to take of all persons" (there the statute widens the exemption given to freemen, which is not altogether unimportant -the freemen are to be exempted); they are "to demand and take of all persons (other than freemen of the said borough) the respective tolls before mentioned"; in other words, they are to levy the franchise tolls. It would be out of the question to suggest that, having made statutory provision for the levy of those franchise tolls for the future under statutory authority, the Legislature intended the mayor, bailiffs, and burgesses to continue to levy the same tolls under their franchise. Well, what appears to me to have been effected by that part of the enacting clause of this statute is simply to create what it was quite competent for them to do-a statutory authority in the room of, and in substitution for, the right of franchise which was previously available to the mayor,

63 J. P. 164. bailiffs, and burgesses. The effect of that substitution of a new statutory authority for an authority derived from a franchise only was, I apprehend, on the clearest authority to determine the franchise-to put an end to it; and, accordingly, I think the matters stood in the position that there was no franchise; there was a perpetual right to levy, according to the scheme substituted for the franchise, certain sums for the bridge, and thereupon the mayor and burgesses go to Parliament for another Act. I do not intend to refer to the terms of that Act, or to discuss or consider what might have been its effect in different circumstances. If I am right so far as I have gone, the only consideration which it raises is limited to this point: does it anywhere set up the franchise anew? In my opinion it certainly does not. To begin with, the Legislature cannot create a franchisethat is a matter beyond its powers; but I do not dispute its entire competency to create a statutory remedy and statutory rights and statutory obligations, which will form the equivalent of a good franchise right; that is, undoubtedly, in its power to do. But, in the second statute and in its successor, so far as I can find, there is no attempt to do that; there is no new statutory right created; there is no substitution for the franchise created. All the clauses that are founded upon are clauses simply reserving certain rights and privileges which are assumed to have been, at the time the later Acts of 1819 and 1842 were passed, vested in the mayor and burgesses. But how far these reservations might reserve the right which was competent to and in the mayor and burgesses at that time it is not necessary to discuss. They could not have the effect of calling again into existence and revivifying a right that was dead and gone a century before. On these grounds, my lords, I think the judgment appealed from ought to be affirmed with costs.

Lord SHAND.-Concurring as I do in thinking that the judgment of the Court of Appeal should be affirmed for the reasons stated by your lordships as to the effect of the statute of 9 Geo. 2, and the learned judges of the Court of Appeal having in their unanimous judgment so fully, carefully, and, in my opinion, satisfactorily dealt with the question raised, I think it unnecessary to add any observation of my own.