PART III.-VOL. VI.

JULY-SEPTEMBER, 1901.

65 J. P. 423.

KING'S BENCH DIVISION.

April 19.

HAWKINS v. EDWARDS.

Local government - Hackney carriage Covering up number when taken out on special order-Contravention of byelawTown Police Clauses Act, 1847 (10 & 11 Vict. c. 89), s. 38.

A byelaw made by a corporation under the Town Police Clauses Act, 1847, after providing that all hackney carriages should have numbers painted on them, further provided that the plates bearing such numbers should be at all times "distinctly and plainly visible and legible, and that the owner should not wilfully or negligently cause or suffer any such plate or number to be in any way or by any means concealed from public view." The proprietor of a hackney carriage sent a hackney carriage in obedi ence to a special order to convey a passenger to the station, and while on such journey the number was concealed.

Held, that a "hackney carriage" within the

meaning of the Town Police Clauses Act, 1847 (10 & 11 Vict. c. 89), s. 38, is a carriage which is in fact used from time to time for the purpose of standing or plying for hire and the words "used in standing or plying for hire" in that section are not limited to the period of time during which a carriage is actually standing or plying for hire in a street.

Case stated by justices in and for the city of Birmingham.

1. At a court of summary jurisdiction holden on the 30th of November, 1900, at the police-court, Victoria-courts, in the said city, an information by Francis Thomas Edwards, a superintendent of police for the said city (hereinafter called the respondent) against Thomas Hawkins (hereinafter called the

Vol. vi., Part 3.

65 J. P. 423. appellant) charging him that he, on the 26th of November, 1900, at the city aforesaid, then being the proprietor of a certain hackney carriage duly licensed and then being driven for hire there, and having caused a plate containing the number of such license to be fixed on the outside of such carriage, unlawfully did negligently suffer such plate to be concealed from public view while such carriage was being so driven for hire, contrary to the byelaw in that case duly made and allowed and contrary to the statute in such case made and provided, was heard and determined by us, and we convicted the said Thomas Hawkins, and fined him 1s. and ordered him to pay to the respondent 9s. for costs, subject to this case.

It was proved before us that on the 26th of November, 1900, one James Deeley, who was in the employ of the appellant, drove a carriage which was licensed as a hackney carriage, No. 396, along the Horse Fair to the New-street Railway Station, the number plate outside the carriage being covered over by a piece of black board, which was made to slide into a groove so that the number when the board was over it was not visible. There was a passenger in the carriage. Deeley was not licensed as a driver, and he was called as a witness by the appellant and proved that he received a specific written order from the appellant's manager to take the carriage direct from the appellant's yard to a certain house in Gough-road, Edgbaston, there to call and pick up and take a gentleman, who had previously ordered the carriage, from there to New-street Station, and that he (Deeley) had in pursuance of such order gone straight from the appellant's yard to the said house and there picked up the said gentleman without standing on or plying for hire in any street from the time of leaving the appellant's yard till he was found driving along the Horse Fair with the number plate covered up, the same having been so covered up all the time since the carriage bad left the yard.

The byelaw, which was proved and admitted, is as follows, the same having been made in pursuance of the Public Health Act, 1875, and the Town Police Clauses Act, 1847, and the Birmingham Corporation Consolidation Act, 1883 ::

"Every proprietor of a hackney carriage shall cause the number of the license granted to him in respect of such carriage to be painted

HAWKINS v. EDWARDS.

or marked on a plate or figures of not less than 3 inches in height, and in each case such figures shall be of proportionate breadth and of such a colour or in such a manner as to be clearly distinguishable from the colour or nature of the ground whereon such figures are painted or marked."

He shall cause the first of such plates to be fixed on the outside and the second of such plates on the inside of such carriage in such a position and manner that the number thereon shall be at all times distinctly and plainly visible and legible. He shall not wilfully or negligently cause or suffer any such plate or the number on any such plate to be in any manner or by any means concealed from public view or to be inverted at any time while such carriage may stand, ply, or be driven for hire.

The following are the sections of the Town Police Clauses Act, 1847, which chiefly apply to this case :

Section 37.-" The commissioners may from time to time license to ply for hire within five miles from the General Post Office of the City . . . such number of hackney coaches or carriages of any kind or description adapted to the carriage of persons as they think fit."

Section 38. "Every wheeled carriage, whatever may be its form or construction, used in standing or plying for hire in any street within the prescribed distance and every carriage standing upon any street within the prescribed distance having thereon any numbered plate required by this Act to be fixed upon a hackney carriage or having thereon any plate resembling or intended to resemble any such plate as aforesaid, shall be deemed to be a hackney carriage within the meaning of this Act and in all proceedings at law or otherwise the term 'hackney carriage' shall be sufficient to describe any such carriage. Provided always that no stage coach used for the purpose of standing or plying for passengers to be carried for hire at separate fares and duly licensed for that purpose and having thereon the proper numbered plates required by law to be placed on such stage carriage, shall be deemed to be a hackney carriage within the meaning of this Act."

Section 68. "The Commissioners may from time to time (subject to the restrictions of this Act) make byelaws for all or any of the purposes following (that is to say): for

65 J. P. 423. regulating the conduct of the proprietors and drivers of hackney carriages plying within the prescribed distance in their several employments and determining whether such drivers shall wear any and what badges, and for regulating the hours within which they may exercise their calling; for regulating the manner in which the number of each carriage corresponding with the number of its license shall be displayed; for regulating the number of persons to be carried by such hackney carriages and in what manner such number is to be shown on such carriage and what number of horses or other animals is to draw the same and the placing of check strings to the carriages and the holding of the same by the driver and how such hackney carriages are to be furnished or provided; for fixing the stands of such hackney carriages and the distance to which they may be compelled to take passengers not exceeding the prescribed distance; for fixing the rates or fares as well for time as distance to be paid for such hackney carriages within the prescribed distance, and for securing the due publication of such fares; for securing the safe custody and redelivery of any property accidentally left in hackney carriages, and fixing the charge to be made in respect thereof." It was contended on the part of the appellant that the question was whether the appellant's carriage at the time of and under the circumstances proved as existing at the time of the alleged offence was there and then a hackney carriage within the meaning of the said byelaw and sections and it was argued on the appellant's behalf that on the facts proved the said carriage was not at the time of the alleged offence being used in standing or plying for hire in any street within the prescribed distance nor was it a carriage standing upon any street within the prescribed distance within the meaning of the said section 38 of the said Town Police Clauses Act, 1847, and that therefore the appellant was entitled to have the case dismissed.

It was contended by the respondent that a carriage, when licensed, remains subject to the byelaws during the continuance of the license. That a proprietor cannot by covering up the number plate withdraw the carriage from the operation of the byelaws and that such a construction would render the byelaws nugatory and would interfere with the due control by the local authority.

HAWKINS. EDWARDS.

If this court should be of opinion that the said conviction was properly and legally made, and the appellant is liable as aforesaid then the said conviction is to stand, but if this court should be of opinion otherwise then the said information is to be dismissed. HENRY R. LEECH. H. W. SAMBIDGE. William Wills (A. A. Bethune with him) for the appellant.-The Town Police Clauses Act, 1847, s. 38, defines a hackney carriage as "Every wheeled carriage whatever may be its form or construction used in standing or plying for hire." This carriage, under the circumstances of the case does not come within the definition because it was not at the time "standing or plying for hire." The words in the byelaw "be driven for hire" cannot extend the definition in the statute as carriages hired out for a term to private persons might come within it. It cannot be intended that once a hackney carriage always a hackney carriage. That proposition, if established, would lead to the result that a proprietor could not use a licensed cab for doing work which was privately ordered such as in the present case. The carriage to be a hackney carriage must be standing or plying for hire. (Clarke v. Stanford, L. R. 6 Q. B. 357; 35 J. P. 662.) He also referred to Case v. Storey, L. R. 4 Ex. 319; 33 J. P. 470, where it was held a hackney carriage, whilst on the premises of a railway company by their leave for the accommodation of passengers by their trains is not plying for hire within the meaning of the Hackney Carriage Acts. He also cited Curtis v. Embrey, L. R. 7 Ex. 369.

Hugo Young, K.C. (R. T. M. Berkeley with him), for the respondent.-Assuming the fact that this is a hackney carriage it is clearly within the definition. The object of the regulations as to hackney carriages and their drivers is that the public should be provided with proper vehicles. In order to effect this there must be inspection and control. It can be that a carriage can sometimes be a hackney carriage and some. times not. The words in section 38 of the Town Police Clauses Act, 1847, "used in standing or plying for hire," are not limited to the time during which such a carriage is used in standing or plying for hire. If it were not so the power of the local authority to inspect would be very difficult to carry out. It would be impossible to tell whether

65 J. P. 423.

a carriage had been privately ordered in the yard or hired while plying for hire in the street. As to the argument as to the hardships on the proprietor, if a man elects to have the privileges attached to a hackney carriage and take out a license in respect of any carriage, be elects to devote that carriage to the services indicated in the byelaw.

Lord ALVERSTONE, C.J.-The point in this case is a neat one, and requires some consideration. I must say I was at first struck by the difficulty which was raised in the argument for the appellants, that a hackney carriage must always be used as a hackney carriage, and that a proprietor of a hackney carriage when he gets an order for the hire of a carriage, as in the present case, is not entitled to cover up the number. The object and purpose of the byelaw is to provide proper carriages and drivers, and also to provide for inspection of carriages. If a man elects to take advantage of the Act, he elects, at the same time, to devote his carriage to definite purposes indicated by the byelaw. In my opinion the words used in section 38 of the Town Police Clauses Act, 1847, " used in standing or plying for hire" indicates the period of time during which a carriage is to be deemed a hackney carriage. I cannot construe those words in the way that is contended for in the argument for the appellant, that it is only while the carriage is actually standing or plying for hire that it is to be deemed to be a hackney carriage. The justices have, I think, taken the right view of the case. Every wheeled carriage which is in fact used from time to time for the purpose of standing or plying for hire is a hackney carriage within the section, and the words "standing or plying for hire" are not confined to the actual period of time during which such carriage may be engaged in standing or plying for hire. The appellant therefore contravened the byelaw by covering up the plate under the circumstances of the case, and the appeal must be dismissed.

LAWRANCE, J.-I am of the same opinion. Solicitors for the appellant: T. A. Dennison and Company, for H. G. Tanner, Birmingham.

Solicitors for the respondent: Caprons and Company, for J. E. Hill, Birmingham.

65 J. P. 424.

KING'S BENCH DIVISION.

April 19.

STIFF V. BILLINGTON.

Game-Trespass in search or pursuit ofIntention to kill-Game Act, 1831 (1 & 2 Will. IV. c. 32), s. 30.

The appellant, a gamekeeper, was seen to come from his master's land with a retriever dog on to a plot of land over which a neighbour had sporting rights and which adjoined his master's land. The piece of land in question was sown with mustard, but not by the owner of the sporting rights but by the tenant farmer. The appellant, when caught, stated that he acted in obedience to his master's instructions and that he wished him to be caught as the mustard had been purposely planted there to attract his master's pheasants. The justices found as a fact there was game on the land and that the appellant entered on the land in search or pursuit of game.

Held, that the conviction was right and must be upheld.

Case stated by justices in and for the county of Bedford.

At a petty sessions holden at Luton in and for the division of Luton, in the said county of Bedford, on the 29th of October, 1900, an information preferred by the said Thomas Billington (hereinafter called the respondent) against George Stiff (hereinafter called the appellant) under section 30 of the Act 1 & 2 Will IV. c. 32, charging that he, the said George Stiff, on the 30th of September, 1900, at the parish of Sundon, in the county of Bedford, did commit a trespass by unlawfully being in the day time upon certain land then and there in the occupation of Henry Gates in search of game there, to wit, pheasants, contrary to the form of the statute in such case made and provided was heard and determined by us (the said parties respectively being then present), and upon such hearing the appellant was duly convicted before us of the said offence and we adjudged him to pay a

65 J. P. 424. penalty of 3. 18. 6d. to include costs, and in default thereof to be imprisoned with hard labour for 14 days subject to this case. At the hearing the following facts were proved before us :

1. That the respondent was in the employ of Mr. Abraham Barford, who was the owner of the sporting rights over certain land at Sundon, Beds. The appellant was a keeper in the employ of Mr. Robert Standish Sievier, who was the tenant of and had the right of sporting over the adjoining land. That the appellant was seen by the respondent to come from Mr. Sievier's land on to Mr. Barford's, having with him a retriever dog. That the appellant beat the hedge on Mr. Barford's land, and that the dog searched the whole length of the land. That the appellant said he was acting under his master's instructions, and that he believed his master wanted him to be caught. That Mr. Barford bred pheasants for the purpose of his shooting, and though no nests had been seen on the said land this season, pheasants and other game were on the said land.

2. That the land in question comprised about 60 acres divided into four plots. It was a detached portion of Mr. Barford's shooting, and was surrounded on three sides by Mr. Sievier's shooting, and on the fourth side by the railway, beyond which railway Mr. Barford has other shooting. One portion of the land containing 10 acres was sown with mustard, but it was so sown by the farmer, who was tenant of the land, and not by Mr. Barford, who had the sporting rights.

3. The appellant gave evidence admitting that he went upon the said land, and stated that he acted upon instructions. He had a retriever dog with him, but he denied that he beat the hedge or that his dog hunted.

It was contended on behalf of the appellant

(a) That there was no evidence that the appellant was in search of game;

(b) That it was necessary to prove that the appellant was searching for game for the purpose of killing or taking it, and that there was no evidence that there was any game in fact upon the land in question on the date or at the time of the alleged trespass;

(c) That the respondent's employer had planted mustard for the purpose of attracting pheasants from the adjoining