MAYOR, ETC., OF HUNTINGDON AND OTHERS

v. HUNTINGDON COUNTY COUNCIL. such clerk and the expenses of and incidental to the holding of special and petty sessions in and for each of the said boroughs?

By the Justices' Clerks Act, 1877, s. 5: "In each petty sessional division there shall after the first day of February, 1878, or any later date at which an order for the payment of a clerk by salary in lieu of fees comes into operation in the division, be only one salaried clerk in the division to perform the duties of clerk of petty sessions, clerk of special sessions, or clerk of any justice or justices of the peace.

"Provided that-(1) Where special or petty sessions are usually held at more than one place appointed for the purpose in a petty sessional division, there may, if it seem fit, be a separate salaried clerk appointed in respect of each such place.

"(4) A Secretary of State on the application of the local authority may, if he thinks fit, authorise in any case the appointment of more than one salaried clerk.

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'The salaried clerk (in this Act referred to as a clerk of a petty sessional division) shall be appointed from time to time by the justices acting in and for the petty sessional division in which he is clerk assembled in special sessions, and shall hold his office during the pleasure of those justices."

By the Municipal Corporations Act, 1882, 8. 155 (1): "The mayor shall, by virtue of his office, be a justice for the borough, and shall, unless disqualified to be mayor, continue to be such a justice during the year next after he ceases to be mayor."

Section 159 (1): "The justices for a borough shall from time to time appoint a fit person to be their clerk, to be removable at their pleasure."

By the Local Government Act, 1894, s. 22: "The chairman of a district council unless a woman or personally disqualified by any Act shall be by virtue of his office justice of the peace for the county in which the district is situate, but before acting as such justice he shall, if he has not already done so, take the oaths required by law to be taken by a justice of the peace other than the oath respecting the qualification by estate."

Asquith, K.C., and W. W. Mackenzie for the plaintiffs.-The questions raised by the special case depend upon the construction of the Municipal Corporations Act, 1882, and the Local Government Act, 1888. Sec

65 J. P. 675.

tion 154 (1) of the Act of 1882 gives county justices jurisdiction in boroughs not having a separate court of quarter sessions. Section 155 provides that the mayor and exmayor shall be borough justices whether or not the borough has a separate court of quarter sessions. Sections 156 and 157 deal with separate commissions of peace. The jurisdiction of borough justices is defined by section 158, and section 159 provides that borough justices shall appoint a fit person to be their clerk. The Justices' Clerks Act, 1877, deals with the appointment of justices' clerks for the county, and section 5 provides that a clerk of a petty sessional division shall be appointed by the justices acting in and for such division. There are therefore two sets of clerks-county and boroughand the question is whether section 159 of the Municipal Corporations Act, 1882, applies to boroughs not having separate commissions of the peace. Section 158 of that Act must apply to boroughs with no separate commission, because by section 155 the mayor is a justice, and unless section 158 applies where there is no separate commission there is no definition of the jurisdiction given by section 155. It cannot be argued that section 159 necessarily deals with boroughs having a separate commission of the peace, because between it and sections 156 and 157 is interposed section 158, which refers to boroughs with no separate commission. The Act of 1882 was a consolidating and amending Act. It is important to see the change in the language of section 159 from that of section 102 of the Act of 1835, from which it was taken. The latter section expressly conferred the power upon justices for boroughs having a separate commission of the peace. It has been the practice for the mayor and ex-mayor, together with the county justices usually acting in the division, to appoint the clerk. Whoever appoints the clerk should pay his salary and should receive the fines and fees. By the Justices' Clerks Act, 1877, s. 5. where petty sessions are usually held at more than one place in a petty sessional division there may be a separate salaried clerk appointed in respect of each place, and a Secretary of State may authorise in any case the appointment of more than one salaried clerk. Section 84 of the Local Government Act, 1888, makes no change in the method of appointing clerks of petty sessional divisions, but vides that their salaries shall be paid by the

MAYOR, ETC., OF HUNTINGDON AND OTHERS

v. HUNTINGDON COUNTY COUNCIL. county council, and that all fees and costs not excluded in the fixing of their salaries shall be paid into the county fund. That is the only provision under which fees are payable into the county fund. We do not insist that the borough justices have the power of appointing clerks. The case of Norfolk County Council v. Thetford Borough Council (supra) has no application here, because in that case the borough had a separate commission of the peace. The boroughs here form part of petty sessional divisions of the county.

C. A. Russell, K.C. (J. Brooke Little with him), for the defendants. In the ca cases of Huntingdon and Godmanchester the clerks were not appointed in accordance with the provisions of section 5 of the Justices' Clerks Act, 1877. In the case of St. Ives the proper justices appointed, but the petty sessions were only held at one place. The contention of the county council is that in the petty sessional divisions of Huntingdonshire no necessity exists for the appointment of two clerks, and that therefore there is no justification for imposing the duty of paying two salaries. Fees taken in a county petty sessional court must be paid into the county fund as must also the fines. Section 159 of the Municipal Corporations Act, 1882, refers to boroughs having a separate commission of the peace. By section 22 of the Local Government Act, 1894, the mayor is a county justice. [He referred to Reigate Corporation v. Hart, L. R. 3 Q. B. 244.]

Asquith, K.C., in reply.

KENNEDY, J.-I do not think the decision in Norfolk County Council v. Thetford Borough Council (supra), referred to in the special case, has any application to the question before us. The questions stated are four in number. The first is, "Are the mayor and the immediate ex-mayor of the respective boroughs of Huntingdon, Godmanchester, and St. Ives, entitled to appoint a salaried clerk to perform the duties of clerk of petty or special sessions held in and for such boroughs?" The answer is No, they are not so entitled, because section 159 of the Municipal Corporations Act, 1882, has no application except to boroughs having a separate commission of the peace. The second question does not therefore arise. The third question is, "Are the mayor and immediate ex-mayor of such borough, in

65 J. P. 675.

conjunction with the justices of the county usually acting for the division in which such borough is situated, or the justices by themselves, entitled to appoint a salaried clerk?" The power to appoint is in the justices of the county usually acting for the division, and they may appoint a separate clerk provided they can bring themselves within section 5 of the Justices' Clerks Act, 1877, and not otherwise. The answer to the question as stated is "No." The justices cannot, in my opinion, appoint a clerk for the borough, but may appoint a second clerk in the petty sessional division if more places than one are duly appointed for holding the sessions in the division, and I think the places may be within the area of one and the same borough. Question 4, as stated, does not arise, but section 84 of the Local Government Act, 1888, provides for the payment of clerks of petty sessional divisions by the county council and for the payment of fees and costs into the county fund. That section would apply whether there was one clerk or more, if they were properly appointed.

PHILLIMORE, J.-I agree. I have only to add that when we say that the mayor cannot appoint in conjunction with the ex-mayor, we only mean that he cannot do so by virtue of section 159 of the Municipal Corporations Act, 1882. The mayor is now a county justice under section 22 of the Local Government Act, 1894, and is entitled to act with the justices of the petty sessional division in making any appointment in accordance with the provisions of the Justices' Clerks Act, 1877.

Judgment for the defendants.

Solicitors for the plaintiffs: Grubbe and Troughton, for Hunny bun and Sons, Huntingdon, and G. Dennis Day, St. Ives.

Solicitors for the defendants: Peacock and Goddard, for J. P. Maule, Huntingdon.

65 J. P. 694.

KING'S BENCH DIVISION.

June 4.

Stoddart v. ARGUS PRINTING COMPANY,

LIMITED.

Gaming-Office used for betting Coupon competition-Advertising-Betting Acts, 1853 (16 and 17 Vict. c. 119), ss. 1, 7; and 1874 (37 Vict. c. 15) s. 3.

The defendants agreed with the plaintiff to print and publish on his behalf a newspaper. The plaintiff called upon them to print and publish as part of such newspaper an advertisement of what was called a coupon competition, that is to say of a promise by the plaintiff to pay a specified sum of money to such persons as should correctly guess the result of a certain horserace and should write their guesses upon coupons contained in such advertisement and should return the coupons so filled up to the plaintiff's office, which was situate in Holland, together with a certain sum of money in respect of each guess made. The defendants refused to perform their contract, upon the ground that to print and publish the advertisement above referred to would constitute an offence against the Betting Acts of 1853 (section 7) and 1874 (section 3) and would therefore be illegal.

Held, that whether or not the business of the

plaintiff was legal, neither section 7 of the Act of 1853 nor section 3 of the Act of 1874 rendered it illegal for the defendants to print and publish the advertisement.

Argument of points of law raised by the following pleadings:

Statement of claim

1. The plaintiff is and has since the beginning of the year 1893 been carrying on business as the proprietor of a newspaper called Sporting Luck.

2. By an agreement dated the 20th of March, 1890, the defendants agreed with the plaintiff to print and publish Sporting Luck on his behalf every week on terms and conditions in the said agreement more particularly specified.

65 J. P. 694.

3. The defendants have recently, while the said agreement was still in force, without any justification and in violation of their said agreement, refused to print and publish Sporting Luck for the plaintiff, whereby the plaintiff has suffered considerable damage.

The plaintiff claims 1,000l.

Amended defence

1. The defendants always have been and still are ready and willing to fulfil their said contract so far as they legally may and to print the said newspaper. It was a condition of the said agreement that the defendants were only to be called upon to fulfil it if the said newspaper contained matter which was neither libellous nor illegal.

2. The defendants only refused to print the said newspaper because the plaintiff called upon them under the contract, which is above referred to, to print and publish for circulation in England with the said newspaper and as a part of it an advertisement headed "International Supplement" relating to a horse-racing competition, the publication of which, according to the defenoffence dants' contention, constitutes an against the Betting Act, 1853 (16 & 17 Vict. c. 119), s. 7, and 1874 (37 Vict. c. 15), s. 3. Particulars

I. On the 30th of October, 1900, one Ada Jane Stoddart was tried and convicted at the Central Criminal Court for that she being the occupier of an office at 10, Red Lion-court, in the city of London, had unlawfully opened, kept, or used that office for the purpose of money being there received by her as the consideration of an undertaking to pay thereafter money on events relating to horse-racing in contravention of section 1 of the Betting Act, 1853.

II. The learned judge at the trial of the said Ada Jane Stoddart reserved the point and stated a case for the consideration of the Court for the Consideration of Crown Cases Reserved as to whether the then defendant had in law been guilty of any offence against the said section of the said Act, and on the 17th of November, 1900, the conviction of the said Ada Jane Stoddart was unanimously affirmed by the Court for the Consideration of Crown Cases Reserved. The facts that were proved against the said Ada Jane Stoddart and upon which her conviction

STODDART v. ARGUS PRINTING CO., LTD. was founded were that she was the occupier of an office at 10, Red Lion-court, in the city of London, and the registered proprietor of a newspaper published weekly at that office. Each number of the paper contained a notice of what was called a 'coupon competition," that is to say, of a promise by the then defendant to pay a certain specified sum of money to such persons as should correctly guess the result of a certain horse-race then shortly about to be run and should write their guesses upon certain forms called "coupons," which were issued with each number of the newspaper, and should return the coupons so filled up to the then defendant's office together with the sum of one penny in respect of each guess made. A large number of persons every week sent in to the said office coupons filled up as aforesaid, accompanied by remittances of money.

III. As between the date of the said decision of the Court for the Consideration of Crown Cases Reserved affirming the said conviction and the date of the issue of the writ in this action the plaintiff instructed the defendants under the agreement referred to in paragraph 1 in this defence to publish the advertisement called "An International Supplement," containing a number of coupons as part of the newspaper called Sporting Luck, in which was advertised to the English public a system of competition identical in all respects with that in regard to which the said Ada Jane Stoddart had been convicted, except that the com. petitors were no longer to send their moneys or deposits to No. 10, Red Lion-court, in the city of London, or to any place of receipt or deposit within the jurisdiction of the English courts, but were to send all moneys to, and it was expressly announced that in the future all moneys would only be received at, an office which had been opened by the plaintiff for the purpose of receiving them at Middleburg, in the kingdom of Holland.

IV. The defendants refused to print the said advertisement, contending that as the said office in Middleburg, in Holland, had been opened by the plaintiff for a purpose which would infringe section 1 of the Betting Act of 1853, and section 3 of the Betting Act, 1874, if it had been so opened in this country, the publication of an advertisement in relation to such an office was illegal under the specified sections of the

65 J. P. 694.

two several Acts of Parliament, which are above referred to which refusal constitutes the breach alleged in the statement of claim and sued upon in this action.

The Betting Act, 1853 (16 & 17 Vict. c. 119), s. 1: "No house, office, room, or other place shall be opened, kept, or used for the purpose of the owner, occupier, or keeper thereof, or any person using the same, or any person procured or employed by or acting for or on behalf of such owner, occupier, or keeper, or person using the same, or of any person having the care or management or in any way conducting the business thereof, betting with persons resorting thereto; or for the purpose of any money or valuable thing being received by or on behalf of such owner, occupier, keeper, or person as aforesaid as or for the consideration for any assurance, undertaking, promise, or agreement, express or implied, to pay or give thereafter any money or valuable thing on any event or contingency of or relating to any horse race, or other race, fight, game, sport, or exercise, or as or for the consideration for securing the paying or giving by some other person of any money or valuable thing on any such event or contingency as aforesaid; and every house, office, room, or other place opened, kept, or used for the purposes aforesaid, or any of them, is hereby declared to be a common nuisance and contrary to law."

Section 7: "Any person exhibiting or publishing, or causing to be exhibited or published, any placard, handbill, card, writing, sign, or advertisement whereby it shall be made to appear that any house, office, room, or place is opened, kept or used for the purpose of making bets or wagers, in manner aforesaid, or for the purpose of exhibiting lists for betting, or with intent to induce any person to resort to such house, office, room, or place, for the purpose of making bets or wagers, in manner aforesaid, or any persons who, on behalf of the owner or occupier of any such house, office, room, or place, or person using the same, shall invite other persons to resort thereto for the purpose of making bets or wagers, in manner aforesaid, shall, upon summary conviction thereof before two justices of the peace, forfeit and pay a sum not exceeding thirty pounds, and may be further adjudged by such justices to pay such costs attending such conviction as to the said justices shall seem reasonable, and on the non-payment

STODDART v. ARGUS PRINTING CO., LTD. of such penalty and costs, or in the first instance if to such justices it shall seem fit, may be committed to the common gaol or house of correction, with or without hard labour, for any time not exceeding two calendar months."

The Betting Act, 1874 (37 Vict. c. 15) s. 1: "Where any letter, circular, telegram, placard, hand-bill, or advertisement is sent, exhibited or published:

"(1) Whereby it is made to appear that any person, either in the United Kingdom or elsewhere, will on application give information or advice for the purpose of or with respect to any such bet or wager, or any such event or contingency as is mentioned in the principal Act, or will make on behalf of any other person any such bet or wager as is mentioned in the principal Act; or

(3) Inviting any person to make or take any share in or in connection with any such bet or wager;

"Every person sending, exhibiting, or publishing, or causing the same to be sent, exhibited, or published, shall be subject to the penalties provided for in the seventh section of the principal Act with respect to offences under that section."

Lord Coleridge, K.C., and G. H. Stutfield for the plaintiff.-The pleadings raise the question whether the publication of this advertisement constitutes an offence against the Betting Acts of 1853 and 1874. Section 1 of the Act of 1853 deals with two offences(1) keeping a house for the purpose of betting with persons resorting thereto; (2) keeping a house for the purpose of any money or valuable thing being received there as or for the consideration for any undertaking to pay or give thereafter any money or valuable thing on any event or contingency relating to any horse-race, &c. Section 7 refers back to section 1 and prohibits the advertising of that which is prohibited by section 1. Section 3 of the Act of 1874 also refers back to section 1 of the Act of 1853. The object of the Act of 1853 was to suppress betting-houses; the locality was the subject

65 J. P. 694.

of the suppression, and the locality to be affected by the Act must be within the jurisdiction. Proceedings could not be successfully instituted against a man in England for keeping a betting-house in Holland. It is admitted that the plaintiff does not keep a betting-house in this country, and section 7 cannot apply to advertising places out of the jurisdiction of the courts of the United Kingdom. It was decided in Reg. v. Brown, [1895] 1 Q. B. 119; 59 J. P. 485, that "resorting," in the first part of section 1 of the Act of 1853, meant resorting physically. The plaintiff's office, even if it were in this country, would not fall within that part. Section 7 only applies to advertising the places included in the first part of the section, and therefore has no application to this case. Section 3 of the Act of 1874 does not make this advertisement illegal. Sub-section (1) makes it an offence to advertise persons who will give information or advice. In subsection (2) the last words are subordinate to the words "information or advice." Subsection (3) refers to the first part of section 1 of the Act of 1853. [They also referred to the following cases:-Powell v. Kempton Park Racecourse Company, [1897] 2 Q. B. 242; 61 J. P. 548, and [1899] A. C. 143; 63 J. P. 260; Cox v. Andrews, 12 Q. B. D. 126; 48 J. P. 247; Reg. v. Stoddart, [1901] 1 K. B. 177, and Macnee v. Persian Investment Corporation, 44 Ch. D. 303.]

C. W. Mathews for the defendants.-Section 7 of the Act of 1853 is co-extensive with section 1 and it makes it an offence to advertise either of the places referred to in that section. Section 7 contains no limitation as to locality.

J. K. Mackey held a watching brief for the Anti-gambling League.

PHILLIMORE, J.-My learned brother has asked me to deliver the first judgment. In this case we are of opinion that there should be judgment for the plaintiff, possibly on a somewhat narrow ground. Section 1 of 16 & 17 Vict. c. 119, deals, as has been pointed out, with two different offences: first, the offence of keeping a house to which persons resort for the purpose of betting. The Court for the Consideration of Crown Cases Reserved, whose decision is binding upon this court, held in Reg. v. Brown (supra) that such resort must be physical; therefore the first part of the section makes it illegal to keep a house to which