MICHELL

ተ.

BROWN.

1858. Nor, 24.

[276]

later statute. When such specimens of legislation come before us, we are driven to form the best conjecture we can as to the intentions of the Legislature. And, in this case, we think that the Legislature, in passing stat. 54 Geo. III. c. 159, intended that a prosecutor should not be permitted afterwards to proceed for this offence under stat. 19 Geo. II. c. 22.

Luckily no inconvenience can happen in future from this determination. This conviction must be quashed, but without Conviction quashed.

costs.

66

WRAY v. ELLIS (1).

(1 El. & El. 276-288; S. C. 28 L. J. M. C. 45; 5 Jur. N. S. 624.) Sect. 47 of the Metropolitan Police Courts Act, 1839 (2 & 3 Vict. c. 71) (2), "for regulating the police courts in the metropolis," enacts that where by any Act or Acts any penalties or forfeitures, or shares of penalties or forfeitures, are or shall hereafter be made recoverable in a summary manner before any justice or justices of the peace, and by such Act or Acts respectively the same are or shall be limited and made payable to her Majesty, or to any body corporate, or to any person or persons whomsoever, save the informer who shall sue for the same, or any party aggrieved, in every such case the same, if recovered or adjudged before any of the said magistrates" (of the Metropolitan Police), "shall be recovered for and adjudged to be paid to the said receiver" (of the Metropolitan Police) for the time being, and not to any other person.' The Gaming Houses Act, 1854 (17 & 18 Vict. c. 38), "for the suppression of gaminghouses," inflicts by sect. 4, penalties for certain offences, recoverable summarily before two justices, and, by sect. 8, enacts that "one-half of any pecuniary penalty which shall be adjudged to be paid under this Act shall be paid to the person laying the information upon which the conviction takes place, and the remaining half shall be applied in aid of the poor rate of the parish in which the offence shall have been committed, and shall be paid for that purpose to the overseer or other person authorized to receive poor rates in such parish." On a summary conviction, under this Act, before a metropolitan police magistrate :

Held, that the half of the penalty which was not paid to the informer was payable to the receiver of the Metropolitan Police, and not to

the overseer.

And that it made no difference that, under the appeal clause (10) of the same Act, there had been an appeal to the Quarter Sessions against the conviction, which had been there affirmed, and the clerk of the peace had included the half penalty in the estreat of fines and forfeitures imposed at the Sessions.

THIS was a case stated, without pleadings, under the Common Law Procedure Act (15 & 16 Vict. c. 76, s. 46), for the opinion of the Court, by consent of parties and by order of HILL, J. The case was in substance as follows.

The action is brought by the plaintiff, as and being receiver for the Metropolitan Police District, to recover from the defendant, under sect. 47 of stat. 2 & 3 Vict. c. 71 (2),

(1) Doubted and distinguished, Reg. v. Titterton [1895] 2 Q. B. 61, 64 L. J. M. C. 202, 73 L. T. 345.

(2) Repealed in part, 60 & 61 Viet. c. 26, s. 9.

"for regulating the police courts in the metropolis," a moiety of a penalty or forfeiture of 50l., imposed upon Abraham Levy Goodman, under the following circumstances.

The plaintiff, by indorsement on his writ of summons, gave notice that he intended to claim a writ of mandamus.

Before and at the time of the passing of the said Act, a police court was, and now is, established at Marlborough Street, in the parish of Saint James, Westminster, within the Metropolitan Police District, under the name of the police office in the parish of St. James, Westminster: and Peregrine Bingham, Esquire, is a magistrate of the said Court, and executed the duties of a justice of the peace under the said statute at the said Court. On 22nd July, 1857, the said A. L. Goodman was convicted at the said Court, by and before the said magistrate, for using, on 15th July, 1857, for the purpose of unlawful gaming being carried on therein, a room, of which he was occupier, in Coventry Street in the parish of Saint Martin-inthe-Fields, within the limits of the Metropolitan Police District. The following is a copy of the conviction.

46

County of Middlesex) Be it remembered that, on the 22nd day of 66 and July, in the year of our Lord 1857, at the "Metropolitan Police police court, Marlborough Street, in the "District to wit. county of Middlesex, and within the Metropolitan Police District, A. L. Goodman is convicted before the undersigned, one of the magistrates of the police courts of the metropolis, sitting at the the police court aforesaid: For that he, the said A. L. Goodman, on the 15th day of July, in the year aforesaid, being then the occupier of a room in Coventry Street, in the parish of Saint Martin-in-the-Fields, in the said county, and within the said district, did use the said room, for the purpose of unlawful gaming being carried on therein, contrary to the statute in that case made and provided And I adjudge the said A. L. Goodman, for his said. offence, to forfeit and pay the sum of 50l., *to be paid and applied according to law. And, if the said sum be not paid. forthwith, I adjudge the said A. L. Goodman to be imprisoned in the house of correction for the said county at Cold Bath Fields, in the said county, and within the said district, for the space of six weeks, unless the said sum shall be sooner paid. "Given under my hand and seal, the day and year first above mentioned, at the police court, Marlborough Street aforesaid, in the said county, and within the district aforesaid. "P. BINGHAM (L.S.)."

The conviction took place, and the said penalty or forfei14

R.R.-VOL. CXVII.

WRAY

v.

ELLIS.

[ 277 ]

[ *278 ]

WRAY

v. ELLIS.

ture was adjudged to be paid, under stat. 17 & 18 Vict. c. 38, for the suppression of gaming-houses." By the last-mentioned Act (1) such penalty or forfeiture is made recoverable upon summary conviction before two justices of the peace. And the conviction aforesaid was made by and before the said P. Bingham, so being and acting as such magistrate and justice of the said Court, having, when acting at such Court, the power to exercise the jurisdiction of two justices of the peace. At the time of the said conviction, the plaintiff was, and ever since has been, and now is, receiver for the Metropolitan Police District. A. L. Goodman appealed (2) to the Quarter Sessions for the county of Middlesex against the conviction and adjudication so made by the said P. Bingham. This appeal was heard at the January Sessions, 1858, and dismissed; and the said conviction and adjudication was confirmed. The penalty or forfeiture of 50l. was thereupon paid by the said A. L. Goodman to defendant, as clerk of the peace for the [ *279] *said county of Middlesex, in open Court, pursuant to an order then made by the said Court of Quarter Sessions.

[ 280 ]

The following is a copy of the mandatory part of this order. "Now, the said appeal coming on for hearing in the presence of the said A. L. Goodman, and this Court having heard the matter of the said appeal, and what was alleged on the part of the said A. L. Goodman in support of his said appeal, doth order and determine that the said appeal of the said A. L. Goodman be, and the same is, hereby dismissed; and that the conviction of the said magistrate be, and the same is, hereby affirmed. And it is further ordered that the said A. L. Goodman be, for his said offence, committed to the said house of correction at Cold Bath Fields, there to be kept to hard labour for the space of six weeks, commencing from the said 15th day of January instant, unless the said sum of 50l. shall be sooner paid. And it is further ordered that the said A. L. Goodman do forthwith pay to the clerk of the peace for the said county, to be by him paid to the respondent in the said appeal, the sum of 10l., for the costs of the said respondent of and concerning the said appeal. "By the Court.

"HEATON ELLIS, Clerk of the Peace for Middlesex.'

The case then set out some letters to Mr. Maude, deputy clerk of the peace for the county of Middlesex, from the chief clerk of the Marlborough Street Police Court, and Mr. Bingham,

(1) Sect. 4.

(2) Stat. 17 & 18 Vict. c. 38, s. 10.

with letters from Mr. Maude in answer. The result was that the moiety of the penalty not payable to the informer was claimed on behalf of the present plaintiff, but Mr. Maude considered the claim unfounded; and he wrote to the plaintiff, to that effect.

On 25th February, 1858, Mr. Maude paid over to the overseers of the parish of St. Martin-in-the-Fields the moiety of the penalty which is claimed in this action.

The case then set out a letter of the attorneys for the plaintiff to Mr. Maude, stating that the previous correspondence had been submitted to the Home Office, and that the Secretary of State had directed that the claims should be submitted for the decision of a court of law. Mr. Maude, by letter, assented, and stated that it was immaterial whether his own name or that of the defendant should be used.

The plaintiff contends that the moiety of the said penalty of 501., which is directed by the 17 & 18 Vict. c. 38, to be paid to the overseer ought to be paid to the plaintiff, as receiver for the time being of the Metropolitan Police District. The defendant denies that this is so, and contends that the said moiety was payable under the said Act to the overseers of the said parish of Saint Martin-in-the-Fields, and was properly paid over to them as mentioned above.

The defendant included the moiety of the said penalty which is claimed in this action (as he contends he was bound to do) in the estreat of fines and forfeitures imposed at the said January Quarter Sessions, according to the provisions of stats. 3 Geo. IV. c. 46, and 4 Geo. IV. c. 37.

The case then set out a copy of the estreat, so far as related to Goodman's fine, and the oath of Mr. Maude verifying it. This estreat was sworn on 10th March, 1858.

There is no question in this case as to the other moiety of the said penalty or forfeiture payable (if it be so payable) to the informer.

The question for the opinion of the Court is, Whether the moiety of the said penalty or forfeiture of the said *sum of 501. claimed by the plaintiff is payable to him as such receiver as aforesaid.

If the Court shall be of opinion that such moiety is so payable, judgment shall be entered for the plaintiff: and, if the Court shall think it necessary, a mandamus shall issue directed to the defendant, commanding him to pay such moiety to the plaintiff. If the Court shall be not of opinion that the said moiety is so payable, judgment shall be entered for the defendant.

WRAY

v.

ELLIS.

[281]

[ *282 ]

Such costs as the Court shall think fit to be paid to plaintiff or defendant as the Court shall think fit.

The case was argued on an earlier day in this Term (1).

T. F. Ellis, for the plaintiff :

The conviction under stat. 17 & 18 Vict. c. 38, was a conviction in a case where, by that Act of Parliament, sects. 4, 8, a share of a penalty or forfeiture was, after the coming into operation of stat. 2 & 3 Vict. c. 71, made recoverable in a summary manner before a justice of the peace, and limited and made payable (so far as concerns the moiety in question) to a person not being the informer who should sue for the same, namely the overseers of the poor: and the penalty was recovered and adjudged before a magistrate of a metropolitan police court. The case therefore is within the language and intent of sect. 47 of stat. 2 & 3 Vict. c. 71; and it makes no difference that the conviction was confirmed on appeal.

(LORD CAMPBELL, Ch. J.: I cannot see what difference the appeal could make: the Sessions merely affirm the conviction.)

(LORD CAMPBELL, Ch. J.: If you can show that the two Acts can stand together, you have a good case: but can they do so? Sect. 8 of stat. 17 & 18 Vict. c. 38, uses the words "any pecuniary penalty;" it does not qualify this by adding "when recovered elsewhere than before a police magistrate.")

The language as to the party to whom the penalty is applicable must be interpreted by that of the prospective enactment in the earlier statute, which is not repealed.

(WIGHTMAN, J. The Legislature, having before them the earlier enactment, choose nevertheless to enact generafly.) *** Atherton, contrà:

The language of stat. 17 & 18 Vict. c. 38, s. 8, is express and perfectly general. It is not confined to any particular locality or tribunal, but affects the whole kingdom. It does not expressly repeal stat. 2 & 3 Vict. c. 71, s. 47; but it does so by necessary implication; the earlier statute making an enactment as to a particular locality, the later making an enactment, inconsistent with that, as to the whole kingdom. The plaintiff's case is not supported by the fact that, in the earlier Act, the Legislature is directed to a part, and in the later is general: it is the same as if the earlier statute had been (1) Before Lord Campbell, Ch. J., Wightman, Erle and Hill, JJ.