DICKSEE v. HOSKINS.

expense was gone to with regard to the building), "and that the part above the ground floor is intended to be used for a dwelling-house by a licensed occupier." What is the meaning of those two findings? I cannot read them as meaning anything else but what I think they clearly say, viz., that the part downstairs was intended to be used -that it was used-for the purpose of trade, and that the part upstairs was used for the purposes of dwelling. Those are the facts that I have to deal with, and I cannot get out of them. If I was allowed to get out of them I should say, as was said in Carritt v. Godson (supra): "No; this being a publichouse, there were no such separate tenements, one used for the purpose of the trade and the other used for the purpose of the dwelling." Then the case stated goes on to say: “But I held that the case was governed by the decision in Carritt v. Godson (supra), and I have accordingly allowed the appeal and overruled the objection of the district surveyor." Why did the learned magistrate give the two findings about the trade and the dwelling-house? I cannot understand why he did so, but he has done it. I think it necessary to state that it is only upon that express finding which is sent up to us by the learned magistrate that I feel myself bound, or I would not give the judgment that I am giving, reversing the decision of the Lord Chief Justice and Lawrance, J. I am sorry for it, as I do not think it does justice in this As there is that finding binding upon me, the only thing I can do is to say that the appeal ought to be allowed.

case.

VAUGHAN WILLIAMS, L.J.-I concur most reluctantly. I think that it is a downright misfortune to the public that a case of this sort comes to be argued. The decision so far as the construction and meaning of section 74 of the London Building Act, 1894, is concerned will be absolutely useless and no good to the London County Council. They will not be able to point to it as a decision which decides in any sense or way what is the meaning of this Act of Parliament. Speaking for myself I certainly should have preferred not to have accepted the finding of the learned magistrate as meaning that which my learned brethren think it does mean, and which I agree prima facie it does mean. I should have preferred to have sent the case back to the learned magistrate. He has thought fit here to make a finding which is

65 J. P. 612.

certainly somewhat ambiguous when he says that he finds "that the basement and ground floor of the building were intended to be used for the purposes of the trade of a beerhouse, and that the part above the ground floor was intended to be used as a dwelling-house for the licensed occupier." Those words are to my mind consistent with the finding of fact in the special case in Carritt v. Godson (supra), and not only are the words consistent with that-that is to say, consistent with the fact that the trade was carried on throughout these premises-and consistent with the fact that it was impossible to say that in this case there was one part of the building which was used for trade purposes and another part which was used as a dwelling-house-not only is it that the words are consistent with that view of the facts, but the learned magistrate himself points to that as being the proper construction. He goes on to say "But I hold that the case is governed by the decision in Garritt v. Godson (supra)." What was the decision in Garritt v. Godson (supra)? Why, it was a decision based entirely upon the fact, that although there were certain rooms in that house which were used for living and sleeping purposes, yet, having regard to the nature of the house and the extent of the license, the trade ought to be found to have been carried on throughout the premises so that there was no part of the premises in which it was not a true statement of fact that the trade was carried on. It seems to me that in the case of a beerhouse, where the licensed owner must reside upon the premises in order to have the license at all, such an inference of fact is an à fortiori inference. The primâ facie meaning of the finding of the magistrate here is that the state of things was exactly that described in section 74 (2); that is that there was a building exceeding 10 squares in area, used in part for the purposes of trade and in part as a dwelling-house. The magistrate has said that in words from which, under these circumstances, I am not prepared to differ; but I do hope that we shall not have the waste of public time and public money that is involved in cases of this sort where such a finding is made in the special case as to render the decision absolutely useless for all future purposes of the application of the Act of Parliament.

DICKSEE v. HOSKINS.

STIRLING, L.J.-I also concur most reluctantly in the view which has been expressed. As I understood the case of Carritt v. Godson (supra), the magistrate there found as a fact that the building in question was not used or intended to be used in part for the purpose of the trade, and in part for a dwelling-house. Here the learned magistrate has found as a fact that part was intended to be used for the purpose of the trade of a beerhouse and that the part above the ground floor was intended

64 J. P. 612.

to be used for a dwelling-house. The findings of fact upon the common point are exactly contradictory. We have no jurisdiction to go beyond the findings of fact in the special case. On that ground, and on that ground alone, I think the appeal ought to be allowed.

Appeal allowed. Solicitor for the appellant: W. A. Blaxland.

Solicitor for the respondent: P. Gates.

PART IV.-VOL. VI.

OCTOBER-DECEMBER, 1901.

65 J. P. 627.

KING'S BENCH DIVISION.

May 8.

SOUTH LONDON ELECTRIC SUPPLY CORPORATION v. PERRIN.

Public Health (London)-Nuisance-Issuing of black smoke-No evidence as to nuisance to any individual - Public Health (London) Act, 1891 (54 & 55 Vict. c. 76), s. 24 (b).

The appellants were summoned for allowing

black smoke to issue from their chimney on several occasions. No evidence was given that the black smoke was a nuisance to any individual.

Held, that the appellants were rightly convicted under the Public Health (London) Act, 1891 (54 & 55 Vict. c. 76), s. 24 (b).

Case stated by a metropolitan magistrate on 10 complaints under the Public Health (London) Act, 1891, preferred by the respondent against the appellants.

The first complaint charged that at the premises occupied by the appellants the following nuisance existed after notice had been duly served on them by the respondent, to wit, a chimney (such not being the chimney of a private dwelling-house), did on the 1st of November, 1900, send forth black smoke in such quantity as to be a nuisance, and that the appellant did unlawfully make default in complying with the requisitions of the notice within the time specified, and that the nuisance was caused by the act, default, or sufferance of the appellants, contrary to the provisions of the Public Health (London) Act, 1891.

The other nine complaints were in like terms, except that each stated a different date, namely, the 2nd, 5th, 6th, 7th, 8th, 10th, 12th, 13th, and 14th of November.

Vol. vi., Part 4.

65 J. P. 627,

At the hearing of these complaints it was proved that black smoke issued from the appellants' chimney, which was 180 feet high, on the days alleged in the complaints at various times, varying from eight minutes to one hour, and from six occasions to one occasion on each day.

No witness stated that the black smoke was a nuisance to himself. On behalf of the appellants it was contended that in the absence of affirmative evidence that a nuisance to some person or property was created by the black smoke, the offences charged were not made out.

The magistrate on the evidence came to the conclusion that the black smoke on each of the days amounted to a nuisance, and he accordingly convicted the appellants.

By the Public Health (London) Act, 1891 (54 & 55 Vict. c. 76), s.24 :

"... (b) Any chimney (not being the chimney of a private dwelling - house) sending forth black smoke in such a quantity as to be a nuisance, shall be nuisances liable to be dealt with summarily under this Act.

Cripps, K.C. (Scott Fox, K.C., and S. Fleming with him), for the appellants.-By the section of the Act under which proceedings were taken it must be proved that the issuing of black smoke was a nuisance to some person or property. No such evidence was given here. There is a great difference between sub-section (a) and (b) of section 24. [He referred to Stanley v. Farndale, 56 J. P. 709; Stinson v. Browning, L. R. 1 C. P. 321; 30 J. P.312; Hill v. Somerset, 51 J. P. 742.]

Lord ALVERSTONE, L.C.J.-I must not be thought to say that a magistrate must convict merely because black smoke is issuing out of the chimney. On the other hand, I am clearly of the opinion that it is not necessary to show that a particular individual or particular property has been affected by the black smoke. The magistrate has found as a fact that the black smoke on each of the days amounted to a nuisance. I think that the magistrate was entitled to find that this was not one isolated fact, but that on 10 days out of 14 black smoke was issuing from this chimney. If it had been on one day only he might have found that there was no nuisance, but he has found that on one day

SOUTH LONDON ELECTRIC SUPPLY COR

PORATION v. PERRIN.

as well as on others the black smoke came out. It is impossible to argue that there should be no conviction. The magistrate was justified in his finding, and we cannot say that he was wrong in coming to that conclusion. I feel sure that the magistrate would not have convicted for one event on one day by accident, but it is quite different where the events are continuous.

LAWRANCE, J.—I agree.

Appeal dismissed.

Solicitors for the appellants: Firth and Company.

Solicitors for the respondent: Miller, Smith and Bell.

65 J. P. 628.

KING'S BENCH DIVISION.

May 8.

PICKFORD v. CORSI.

Criminal law-Pledge of stolen goods-Conviction of thief-Charge of unlawful pawning after conviction for larcenyAutrefois convict - Pawnbrokers Act, 1872 (35 & 36 Vict. c. 93), s. 33.

Where a person who has stolen goods and pawned them with a pawnbroker is subsequently convicted of the larceny of the goods he may still be charged and convicted for knowingly and designedly pawning goods, the property of another person, under section 3 of the Pawnbrokers Act, 1872 (35 & 36 Vict. c. 93).

Case stated by one of the magistrates of the police-courts of the metropolis sitting at Worship-street Police-court.

At a court of summary jurisdiction held at the Worship-street Police-court on the 24th and 31st of January, 1901, an information,

65 J. P. 628. dated the 18th of January, 1901, was preferred by the appellant against Antonio Corsi (the respondent) under section 33 of the Pawnbrokers Act, 1872, charging that the respondent on the 5th of January, 1901, had knowingly and designedly pawned with the appellant, being a pawnbroker within the meaning of the Pawnbrokers Act, 1872, two rings, being the property of one Constance Biddulph, the respondent not being employed or authorised by the said Constance Biddulph to pawn the same.

This information was heard and determined by the magistrate and was dismissed by him.

Upon the hearing of the information the following facts were either admitted or proved in evidence :

The appellant was a licensed pawnbroker within the meaning of the Pawnbrokers Act, 1872.

On the 5th of January, 1901, the respondent pledged with the appellant two rings for 61. then advanced by the appellant to the respondent on the security thereof, which rings had been stolen by the respondent at the Avenue Studios, where he was employed, and which were the property of Constance Biddulph.

On the 16th of January, 1901, the owner of the rings charged the respondent at the Westminster Police-court with stealing the two rings on a day prior to the 5th of January, 1901. The respondent was convicted, and was thereupon bound over by recognisance in the sum of 10l. to come up for judgment if called upon.

The appellant declining to give up the rings, the owner on the 16th of January, 1901, issued against the appellant a summons under the Metropolitan Police Courts Act, 1839 (2 & 3 Vict. c. 71), s. 27, for unlawfully refusing and neglecting to deliver the two rings to her. This summons was heard on the 22nd of January, 1901, at the Westminster Police-court, when the appellant was ordered to deliver the two rings to the owner on payment by her to the appellant of the sum of 31., and in compliance with this order the appellant delivered the two rings to the owner and received the above sum of 31. from her.

The respondent has not repaid the above sum of 61. advanced by the appellant on the security of the rings or any part thereof.

PICKFORD V. CORSI.

It was contended for the appellant that the conviction for larceny of the rings did not prevent the respondent being proceeded against under section 33 of the Pawnbrokers Act, 1872.

No one appeared for the respondent.

The magistrate was of opinion that the respondent, having been convicted of larceny of the rings, was not liable to be convicted of another criminal offence in respect of the same property and upon the same facts as those proved upon the conviction for larceny. That the offence under section 33 of the Pawnbrokers Act, 1872, was a criminal offence, inasmuch as a penalty is awarded, and the fact of a court of summary jurisdiction having the power, in addition to imposing a penalty, to award to the pawnbroker any sum not exceeding the full value of the pledge, did not constitute a civil remedy merely for the purpose of recouping the pawnbroker for any loss he might have sustained.

He therefore dismissed the information. The question of law for the opinion of the court was whether, the respondent having been convicted of the larceny of the two rings as aforesaid, he was thereby discharged from liability to proceedings under section 33 of the Pawnbrokers Act, 1872, and whether, under the circumstances aforesaid, the magistrate was right in dismissing the summons against the respondent.

If the court should be of opinion that the summons was properly dismissed, and that the appellant was barred from proceeding under section 33 of the Pawnbrokers Act, 1872, then the order of dismissal was to stand; but if the court should be of a contrary opinion, then the case was to be remitted to the magistrate with the opinion of the court thereon.

The Metropolitan Police Courts Act, 1839 (2 & 3 Vict. c. 71), provides :

Section 27.-" And be it enacted, that if any goods shall be stolen or unlawfully obtained from any person, or being lawfully obtained, shall be unlawfully deposited, pawned, pledged, sold, or exchanged, and complaint shall be made thereof to any of the said magistrates, and that such goods are in the possession of any broker, dealer in marine stores, or other dealer in second-hand property, or of any person who shall have advanced money upon the credit of such goods within the metropolitan police district,

65 J. P. 628.

it shall be lawful for such magistrate to issue a summons or warrant for the appearance of such broker or dealer, and for the production of the goods, and to order such goods to be delivered up to the owner thereof, either without any payment or upon payment of such sum and at such a time as the magistrate shall think fit."

The Pawnbrokers Act, 1872 (35 & 36 Vict. c. 93), provides :

Section 33.-" If any person knowingly and designedly pawns with a pawnbroker anything being the property of another person, the pawner not being employed or authorised by the owner thereof to pawn the same, he shall be guilty of an offence against this Act, and shall be liable, on conviction thereof in a court of summary jurisdiction, to forfeit any sum not exceeding five pounds, and, in addition thereto, any sum not exceeding the full value of the pledge as ascertained by the court. The forfeitures when recovered shall be applied towards making satisfaction thereout to the party injured, and defraying the costs of prosecution, as the court directs; but if the party injured declines to accept of such satisfaction and costs, or if there is any surplus of the forfeitures, then the forfeitures or surplus (as the case may be) shall be paid to the overseers of the poor of the parish or place where the offence is committed for the use of the poor thereof."

Horace Avory, K.C. (C. L. Attenborough with him), for the appellant.-The question here is whether a thief who has stolen and pawned some goods can be proceeded against for illegal pawning under the Pawnbrokers Act, 1872, subsequent to his conviction for the larceny of the goods. The section of the Pawnbrokers Act applies to such a case. The property in the goods does not pass to the thief, and therefore when he pawns the stolen goods he is in fact pawning the property of another person and committing another criminal offence quite distinct from the larceny. It is because it is a distinct and different criminal offence that the defendant cannot plead autrefois convict. It is not an offence necessarily involved in the larceny. This is shown from the reasoning in Faucett v. Bierman, 14 T. L. R. 148. The question in that case was whether the pawnbroker or the owner of the goods was the proper person to take proceedings, and it was decided that the pawnbroker was the person injured within the meaning of this section. The offence,