QUEEN'S BENCH DIVISION.

October 30, 1900.

MAYOR, ETC., OF SOUTHEND-ON-SEA v. WHITE.

Public Health General district rate Occupation - Shop used for summer season- -Liability to rate-Public Health Act, 1875 (38 & 39 Vict. c. 55), s. 211.

The respondent held under an agreement from the appellants a shop on the pier By the terms of the agreement no one was to sleep on the premises. The respondent used the shop during the summer season, but before the winter he removed all the stock leaving certain shelves and mirrors in the shop which was then locked up and left unoccupied.

Held that the respondent was liable to be rated for the time the shop was left shut up.

Case stated by justices of the peace in and for the borough of Southend-on-Sea in the county of Essex.

Vol. vi., Part 1.

1. The respondent appeared before us on the 27th of March, 1900, on the complaint of the appellants by one Brice George Thomas, their collector, for that he, the respondent, being a person truly rated and assessed by the general district rate made on the 9th of November, 1899, for the half-year ending the 31st of March, 1900, at the rate of 1s. 6d. in the £ in respect of certain premises known as Nos. 2 and 3 Pier Hill Buildings in the said borough in the sum of 101. 4s. had failed to pay the same or any part thereof for 14 days after the same had been duly demanded in writing.

2. The following facts were proved or admitted before us, namely :(a) That the said rate was duly made, and that the respondent was rated thereby in respect of the said premises as shops at 1s. 6d. in the £ on the annual value of 1361. in the sum of 101. 4s., by the rate made on the 9th of November, 1899, for the half year ending the 31st of March, 1900.

(b) That the said rate had been duly demanded in writing, but had not been paid or any part thereof.

MAYOR, &C., OF SOUTHEND-ON-SEA v. WHITE.

(c) That after the respondent had entered into possession, he had, with the consent of the appellants, turned the said two shops into one lock-up shop. That the premises now consist of such two lock-up shops so converted as aforesaid by the respondent into one. That there is no living accommodation, lavatory, or water supply thereon.

(d) That the respondent had carried on business there under the name of the "Universal Bazaar Company," and had used the premises as a shop for the sale of goods at prices not exceeding 64d., up to the 25th of September, 1899, when he locked them up and left them in manner hereinafter stated.

(e) That for the purpose of such business the respondent had caused to be indicated on a sign board securely attached to the premises the words "Any Article 64d. Any Article," and had also affixed on the windows and other exterior parts of the premises the words "The Universal Bazaar Company. Nothing over 64d.," all of which remained so attached and affixed for the period during which the said rate was current. (f) That for the purposes of his business the respondent had, before opening the premises in May, 1899, brought on to the premises some mirrors and mirrored shelves, which were required and used solely for the purpose of displaying stock while the premises were open for the sale of goods. The mirrored shelves and some of the mirrors were affixed to the walls and windows of the premises, but some of the mirrors were not affixed to the premises.

(g) That the respondent's business could not be carried on lucratively on the said premises except in the summer months, and the respondent, on or about the 25th of September, 1899, and before the said rate was made, locked up and left the said premises in a manner hereafter stated with the bona fide intention of not re-opening the same for business until the month of May, 1900, and after the expiration of the half year for which the said rate was made.

(i) Up to the date of hearing by us of the summons against the respondent (the 7th of March, 1900) neither the respondent

65 J. P. 7

nor any person or persons on his behalf had in fact returned to the said premises. No one ever lived on the said premises. In September, 1899, he had removed all his stock therefrom, but had left on the premises the various mirrors and shelves mentioned in paragraph (ƒ) hereof, and the other articles belonging to him as follows, namely:-Three movable chairs having mirrored tops, and three tiers of mirrored shelves used for the display of the stock of the respondent; a sweeping brush and galvanised iron pail; a pole or rod used for reaching down goods; a small trolley used for moving heavy goods or parcels, and a shop ladder for getting down same from the shelves.

(k) That by the said lease or license the respondent was entitled to occupy the said premises or any part thereof continuously throughout the whole term mentioned therein if so disposed, and to carry on business thereon, nor was there anything in the state and condition in which the premises were left to prevent him so doing.

(1) That the respondent would require all the various tables, mirrors, shelves, and other articles and things so left by him for carrying on his business, but could not utilise the said premises for his business purposes until he had moved in and unpacked his stock.

(3) The respondent contended that under the above circumstances the said premises had in law ceased to be occupied by him after the 25th of September, 1899, and through the period during which the said rate was current, and until he again brought stock on to the premises and again carried on business thereon, and that therefore he was not liable to pay the said rate.

(4) The appellants contended that the respondent was in occupation of the said premises during the period for which the said rate was made and was therefore liable to be rated in respect of the same, and was not within the exemption contained in section 211 (2) of the Public Health Act, 1875, and was liable to pay the said rate.

(5) We found the facts to be as stated in clause 2 hereof, and held that in law the respondent was not in occupation of the said premises during the said period, and that he was not liable to pay the said rate or any

MAYOR, &C., OF SOUTHEND-ON-SEA v. WHITE.

part thereof and declined to order payment of the said rate or any part thereof and dismissed the said complaint.

(6) The question for the opinion of the court is

Whether upon the facts set out in clause 2 we were right in law in holding that the respondent did not occupy the said premises or any part thereof during the currency of the said rate of the 9th of November, 1899.

Dated the 29th of June, 1900, at the court of summary jurisdiction sitting in and for the borough of Southend-on-Sea in the county of Essex aforesaid.

1. "The corporation hereby give leave and license to the licensee (the respondent) to use between the hours of 6 a.m. and twenty minutes past eleven on every day from the 28th of March, 1899, to the 25th of March, 1913, all those lock-up shop and premises" (being the premises in question).

3. "The licensee shall pay to the corporation by way of rent on the 30th of June, and 15th of August in each year the sums of 100%. . . ."

"The premises shall not be used as a dwelling house nor shall any person or persons occupy the same between 11.30 p.m. and 6 a.m. the next morning and no person or persons shall be allowed to sleep upon the premises in the night time."

The Public Health Act, 1875 (38 & 39 Vict. c. 55) provides :

Section 211: "With respect to the assessment and levying of general district rates under this Act the following provisions shall have effect; namely: (1) General district rates shall be made and levied on the occupier of all kinds of property for the time being by law assessable to any rate for the relief of the poor, and shall be assessed on the full net annual value of such property, &c. (2) If at the time of making any general district rate any premises in respect of which the rate may be made are unoccupied, such premises shall be included in the rate, but the rate shall

65 J. P. 7.

not be charged on any person in respect of the same while they continue to be unoccupied, &c."

Pickford, Q.C. (Herbert Smith with him), for the appellants.-The justices were wrong, The question in this case is whether the respondent was in occupation of this shop during the period that he locked it up and I went away so as to make him liable to be rated in respect of such time as the shop was unused. The justices have decided that the respondent is not to be rated in respect of such time, but it is submitted that the facts of the case are against such a decision. By the agreement, which is really a lease, certain rent is named as payable, and the respondent has the right to occupy the premises the whole year except that no person is to sleep on them. When he goes he leaves the fittings, shelves, and mirrors behind and the premises are in such a condition that he can open his shop at any time by merely bringing down the stock. In Willing v. St. Pancras Assessment Committee, 2 Q. B. D. 581, it was held that a person who affixes advertisements to hoardings was not an occupier. That differs from this case, as there the person sought to be rated only got a license to place his advertisements on hoardings belonging to somebody else, but here the respondent had exclusive possession of these premises, he used them as a shop during the summer months, and during the rest of the year he was still in occupation, his fittings, shelves, and mirrors were there, but he did not open the shop.

Macmorran, Q.C. (J. A. Hawke with him), for the respondent.-The question here is one of fact, and that has been found in the respondent's favour by the justices. Occu pation is a question of degree. Here the respondent had removed all his stock, and the shop was practically an empty, unoccupied shop. Both parties to the agreement knew the shop would only be open during the summer season. The mere fact that the respondent was entitled to re-occupy it at any time will not constitute occupation. Willing v. St. Pancras Assessment Committee (supra), Lush, J., says: "Legal possession does not of itself constitute occupation. The owner of a vacant house is in possession, but as long as he leaves it vacant he is not rateable for it as an occupier." The cases of Reg. v. Overseers of Malden,

In

MAYOR, &C., OF SOUTHEND-ON-SEA v. WHITE.

L. R. 4 Q. B. 326, and Smith v. Assessment Committee of New Forest Union, 61 L. T. 870 ; 54 J. P. 324, are in point. The rights of the respondent were here limited by the agreement, so that he could use the place at certain times, and the distinction in such cases is pointed out by Cave, J., in Southport v. Ormskirk Union Assessment Committee, [1893] 2 Q. B. 468; 58 J. P. 212.

Pickford, Q.C., was not called on to reply. LAWRANCE, J.-In this case I think the magistrates came to a wrong conclusion. The point has been taken, in the first instance, that there was no tenancy at all under this agreement, but that all there was was a mere license. On looking at the agreement a lease or license was granted for 14 years at the yearly rent of 2007., and by the terms of that agreement these premises were handed over to the respondent. He has to pay 1007. in June and in August, and he has a full right to carry on his business there, but he is not to carry it on after 11 o'clock at night. As to that point I think there was a tenancy. The question then is whether there was an occupation during the period in question, namely, the winter months when the shop was closed. When the summer ended the goods were removed from this shop, which was only a lock-up shop, but certain things were left behind. All that was necessary to carry on the business-with the exception of the stock itself was kept on the premises, and by the terms of the agreement he was bound to keep the place in good repair and hand it over in good repair. I think, therefore, that there the respondent was in occupation for the six months in question and that this appeal must be allowed.

KENNEDY, J.-I am of the same opinion. It seems to me that the justices have held as a matter of law that the respondent did not occupy the premises during the time when the shop was locked up. When we look at the facts stated in the case we find that the respondent left on the premises what was necessary for the fitting up of the place and also some other things, but he removed his stock, and because he did so the magistrates have held, really as a matter of law, that the premises ought to be treated as unoccupied premises unless they are stocked, as they say that the respondent "could not utilise the premises for his

65 J. P. 7. business purposes until he had moved in and unpacked his stock." I think they were clearly wrong, and that there is no authority for that proposition. Putting it as a question of law, I think they were wrong. With regard to the other point, although in many cases it is not easy to say whether a thing is a license or a tenancy, I think in this case there was a tenancy, and that the justices were clearly wrong in holding that the respondent was not liable to this rate.

Appeal allowed. Solicitors for the appellants: J. E. and H. Scott, for W. H. Snow, Southend. Solicitors for the respondent: Todd, Dennes and Lamb.

65 J. P. 9.

CENTRAL CRIMINAL COURT.

December 13, 1900.

[Before RIDLEY, J.]

REG. v. KANE.

Criminal law-Larceny Act, 1861 (21 & 25 Vict. c. 96), s. 75-Direction in writingDocument written by defendant.

The prosecutrix handed a cheque to the defen

dant with verbal instructions to apply the proceeds to an application for shares in a certain railway, and in the event of such shares not being obtainable to return the money to her. The defendant gave the prosecutrix a receipt, made out and signed by him, in which it was stated that the money was to be applied to the application for the shares in the railway, or to be returned if the shares were not obtainable.

REG. v. KANE.

The defendant was indicted under the first part of section 75 of the Larceny Act, 1861 (24 & 25 Vict. c. 96), for that he, having been entrusted as agent with a banker's cheque for 601. with a direction in writing to apply the proceeds thereof for the purpose specified, in violation of good faith, did convert the same to his own use.

C. W. Mathews (Guy Stephenson with him) appeared for the prosecution.

Travers Humphreys (E. C. P. Boyd with him) for the defence.-The following evidence was given by Mrs. Williamson :-On the 13th of November the prisoner brought a newspaper to me and pointed out an advertisement of the Baker-street and Waterloo Railway. He said it would be a very good thing to invest in, and he was going to invest in it himself, and it would pay a good percentage. He said he was going to apply for 60 shares for himself. I said I would like 60 shares. I got out my cheque book and wrote out a cheque for 601. He asked me not to cross it, as he wanted to cash the cheque at once because they would not take a cheque, and the application list would be closed that day. I asked him for a receipt, and he gave me the document now produced after I had handed him the cheque. Next day I asked him if he had been able to get the shares, and he said he had only been able to get 60, 30 for me and 30 for himself. He produced a receipt purporting to be for the money paid for these shares.

Cross-examined.-I gave him the cheque in the afternoon of the 13th of November about 2 p.m. I saw him about an hour or so after he had had the cheque, but I cannot remember whether he gave me the receipt when I gave him the cheque, or when I saw him an hour or so after I had given him the cheque.

Re-examined.-He gave me the receipt on the same afternoon that I gave him the cheque. He gave me the receipt before he went to the bank, as far as I remember. It was also proved that the cheque was cashed at the bank on the afternoon of the 13th of November, and that neither the names of Louis Kane nor Mrs. Williamson appeared as applicants for shares in the Baker-street and Waterloo Railway. And further that the defendant, on being questioned a few days later, admitted that he had cashed the cheque and had not applied for any shares but had lost the money gambling. The

85 J. P. 9,

receipt given by the defendant to Mrs. Williamson was as follows:-"Received of Mrs. Williamson 601. for an application for 60 shares in the Baker-street and Waterloo Railway. To be returned if shares not obtainable. 13-11-1900. L. Kane." The above document had a receipt stamp affixed and duly cancelled.

Mathews. I submit that the receipt constitutes a direction in writing within the terms of the section. That section makes an agent responsible for the malversation of money received from a principal, but in order that the charge should not be founded on mere parol direction it is provided that it must be in writing. No more cogent direct tion can be obtained than one from the person entrusted with the valuable security. He referred to Reg. v. Christian, L. R. 2 C. C. R. 94.

Humphreys.-I submit there is no case to go to the jury on this indictment; the prisoner could have been indicted for larceny as a bailee. (Reg. v. Holloway, 66 L. J. Q. B. 830.) There is no direction in writing here. The words of the section are: "Whosoever having been entrusted . . . with any money

...

with any direction in writing, &c." A "direction" is an order or request, where one person directs another to do something. A person cannot direct himself to do something. The receipt here is something in the nature of an undertaking to use the money in a particular way.

RIDLEY, J.-The prosecutrix tells the prisoner what to do with the money, he put that into writing, that becomes a direction in writing.

Humphreys.-Reg. v. Christian (supra) is in my favour. If the argument for the prosecution here is good, then the whole argument in Reg. v. Christian (supra) was unnecessary, because in that case there was the clearest "direction" by the prisoner himself. But Kelly, C.B., in his judgment at p. 101, says: ". . . the only question in the present case is whether the instructions contained in the prosecutrix's letter of the 27th of November were a 'direction' within the meaning of the Act." The meaning of the word "direction" has been considered in Reg. v. Brownlow, 14 Cox C. C. 216, where Hawkins, J., at p. 219, says: "The case is not within section 75, which only applies, in my judgment, where the agent has been entrusted by his employer with money