single expression of the foul language alleged to have been used by the respondent, and the magis. trate found as a fact that at the time the respondent entered the appellant's premises he was neither drunken, nor violent, nor quarrelsome, nor disorderly, and he was satisfied that the appellant sought to eject the respondent solely on account of the respondent's conduct in the house upon former occasions, and that the kick had been given in the course of a struggle so initiated by the appellant and while the respondent was resisting forcible expulsion.

On these findings the magistrate dismissed the charge, holding that on the circumstances disclosed in the case the appellant's right to forcibly eject the respondent was dependent upon and controlled by sect. 18 of the Licensing Act 1872, and that on the authority of Dallimore v. Sutton (62 J. P. 423) the appellant had no right to forcibly eject the respondent on his refusing to leave when required unless at the time of such requirement the respondent was either drunken, violent, quarrelsome, or disorderly within the meaning of the section, and that the respondent was therefore entitled to resist the appellant when seeking to forcibly eject him.

The question for the opinion of the court was whether the magistrate was right in law in so holding, or whether the appellant was entitled to require the respondent to leave the licensed premises and to eject the respondent from the premises after the respondent had refused to leave the same although the respondent was not at the time of such requirement either drunken, violent, quarrelsome, or disorderly.

Sect. 18 of the Licensing Act 1872 (35 & 36 Vict. c. 94) provides :

Any licensed person may refuse to admit to and may turn out of the premises in respect of which his licence is granted any person who is drunken, violent, quarrelsome, or disorderly, and any person whose presence on his premises would subject him to a penalty under this Act. Any such person who upon being requested in pursuance of this section by such licensed person, or his agent or servant, or any constable, to quit such premises, refuses or fails so to do, shall be liable to a penalty not exceeding five pounds, and all constables are required on the demand of such licensed person, agent, or servant, to expel or assist in expelling every such person from such premises, and may use such force as may be required for that purpose.

Danckwerts, K.C. and Bruce Williamson for the appellant. The magistrate was wrong in holding that before a person could be lawfully removed from licensed premises he must at the time have been guilty of the behaviour of the kind mentioned in sect. 18. This is a wrong view of the law. A request to leave is necessary, and therein the case differs from the case of ejecting a person from a private house, but upon such request the person is bound to leave, and, if he does not do so, he may be ejected. Licensed premises are in the same position in this respect as an ordinary shop opened for the sale of certain commodities. In each case there is an implied invitation to the public to enter, and, if a person so enters, before he can be removed he must be requested to leave; but if upon being requested to leave the licensed premises or the shop he refuses to do so, then he may be ejected, and no assault is committed provided no more force is used than is neces

[K.B. DIV.

sary to remove him. The magistrate based his decision upon Dallimore v. Sutton (62 J. P. 423), decided by Wills and Kennedy, JJ. in 1898; but he took a wrong view of that decision. Wills, J. there distinctly points out that a licensee might have a common law right to turn anyone off his premises, but that he could only do so under sect. 18 of the Licensing Act 1872, under which the charge was laid, when the person was either drunken, violent, quarrelsome, or disorderly. That decision amounts to no more than this, that a person cannot be convicted under that section for refusing to leave when requested unless he comes within the class of persons mentioned in the section. It is no authority for the proposition that the licensee cannot turn a person off his licensed premises after requesting him to leave. The matter was considered in Ireland in Reg. v. Justices of Armagh (1897) 2 Ir. Rep. 57), and Holmes, J. (at pp. 67-8) points out the distinction between an inn and an alehouse in respect of the obligation of the licensed person to supply customers, and he says that the modern publican is not subject to an obligation analogous to that of an innkeeper. In this connection it is necessary to remember that the magistrate has found, first, that this house was not an inn; and, secondly, that the respondent was not a traveller. Even in the case of an inn the obligation to supply or accommodate a guest in the inn is limited to travellers, and ceases if the guest ceases to be a traveller:

Lamond v. Richard, 76 L. T. Rep. 141; (1897) 1
Q. B. 541.

And à fortiori it must be limited in the case of an ordinary licensed house. That case clearly shows that even in the case of an inn a person who is not a traveller, or who has ceased to be a traveller, can be requested to leave, and can be ejected on his refusal to leave; and it simply reduces this case to the case of a person entering any ordinary shop. If the licensee is entitled to eject a person -as he was in this case-and if while the landlord has hold of him to put him out the person lays hold of the landlord, he is guilty of assault :

Howell v. Jackson, 6 C. & P. 723.

The case of Reg. v. Rymer (35 L. T. Rep. 774; 2 Q. B. Div. 136) is exactly in point in the same direction as showing that the licensee is under no obligation either to serve or to allow a person to remain on his licensed premises longer than he thinks right to do so.

The respondent did not appear.

Lord ALVERSTONE, C.J.-This is a case stated by a metropolitan police magistrate who had dismissed a summons for assault, because he considered that the proceedings out of which the assault arose were occasioned by the appellant, who is the occupier and licen ee of a publichouse, requesting the respondent to leave the house, and that therefore, whatever followed, the magistrate could not entertain the charge for assault. The magistrate seems to have thought that the only rights of a licensed person in such a case depended on the 18th section of the Licensing Act of 1872, and that unless the person was drunken, violent, quarrelsome, or disorderly at the time, he had no right to request him to leave. We think that the learned magistrate has overlooked two important elements of the case to which our attention

was called in the argument by counsel for the appellant-namely, that, in the first place, this house was not an inn, but was only an ordinary licensed house; and, secondly, that the person who was turned out, or attempted to be turned out, was not a traveller. We think the distinction has been recognised in many cases, not only in the case of Reg. v. Justices of Armagh (ubi sup.), but in the case of Reg. v. Rymer (ubi sup.), and in one or two of the other cases cited to us for the appellant. In our opinion the distinction is well founded, and we consider that the occupier of a licensed house has a right to request a person to leave his house if he does not wish him to remain upon his premises. We also think it right to say, and in this case it is quite clear the magistrate himself thought, that there was nothing unjustifiable in one sense in the conduct of the appellant, because the magistrate has found that the man who was requested to leave was one of a gang of men who had been disorderly and had given trouble in the appellant's house. But we do not base our judgment upon that point. We think that the point taken by counsel for the appellant was right, that, except in the case of an inn and a traveller, the licensee and occupier of a public-house has a right to request a person to leave. Therefore this case must go back to the magistrate, in order, if necessary, that the question of assault should be tried. The objection the magistrate took does not prevail, and this appeal must be allowed.

DARLING, J.-I am of the same opinion. It seems to me there is and always has been a very great difference between the old form of inn and the modern public-house, or what was simply an alehouse. In one of the passages read by counsel for the appellant from the judgment of Holmes, J. in the case of Reg. v. Justices of Armagh (ubi sup.), it was stated that the English inn was coeval with English literature, and I have no doubt that, when the learned judge said that, he was thinking probably of the inn as described in Chaucer, and perhaps as described by Dr. Johnson in Boswell's Johnson. The reading of that recalled to my recollection the passage in which Dr. Johnson said that one of the characteristics of an inn is that you are made welcome, and that the more noise you make, the more trouble you give, and the more good things you call for, the more welcome you are. And, having made that statement, he proceeded to repeat, as Boswell says, with great emotion a well-known verse from Shenstone. The particular person in this case did not make himself welcome, because he went beyond what was described as the more noise you make, the more trouble you give, and the more good things you call for, the more welcome you are. He seems to have been a person who belonged to a disorderly gang, who would not be a good customer as the publican very well knew, and the appellant acted therefore upon the right, and I think the undoubted right, which he had to say: "I am quite ready to serve some customers, even noisy customers, and I serve them; but you are the kind of customer who not only makes a noise, but will do me no good, and I will not serve you. I have the choice like other shopkeepers, and I will not serve you." It seems to me that the appellant, in acting as he did, acted really to the public advantage, because the other persons who

[K.B. Div.

frequented the house might very well have complained if the publican were to allow a person who to his knowledge was a member of a disorderly gang to frequent his public-house. If he allowed one of a gang to frequent it, he must allow them all; at least there is no reason why he should allow one more than another, and by allowing such a gang to frequent his house he would undoubtedly endanger his licence. It seems to me, therefore, that he was acting not only within his rights, but in the public interest, when he told this person that he would not serve him, and would not allow him to remain there, and that the person to whom he said that ought instantly to have left.

Justices-Application for summons-Primâ facie evidence of offence-Discretion of magistrate. On an application for a summons, if the magistrate, after hearing the applicant's statement, is of opinion that if the summons were issued and the offence were proved he would nevertheless under the circumstances dismiss the summons at the hearing, he may in the exercise of his discretion refuse to issue the summons.

RULE nisi for a mandamus to a metropolitan magistrate and one H. Nosseck to show cause why the magistrate should not hear and determine according to law the matter of a certain application for a summons against H. Nosseck for unlawfully exercising the trade or calling of a baker by causing to be sold or exposed for sale bread at 7.40 o'clock in the morning of Sunday, the 28th July, 1901.

From the affidavit of the magistrate the facts seem to bave been as follows:

The prosecution was a Sunday observance prosecution, instituted under 3 Geo. 4, c. cvi., s. 16, by one Thomas Vinters, a baker, of 462, Highstreet, Tottenham, outside the jurisdiction of the magistrate's court, against Nosseck, a baker carrying on his business at 113, Backchurch-lane, within such jurisdiction.

The magistrate was informed that Nosseck was a person of the Jewish religion, and that he kept his shop closed on Saturday, during the Jewish Sabbath. There was a very large Jewish community within the jurisdiction of the magistrate, and that if Nosseck's shop and similar shops in the locality were closed on Sundays, as in the Act provided, this Jewish community would be put to considerable hardship in the matter of fresh baked bread.

(29 Car. 2, c. 7) it would have been necessary, under the Sunday Observance Prosecution Act 1871 (34 & 35 Vict. c. 87), to have obtained the consent in writing of the chief officer of police, or of two justices of the peace, or of a stipendiary magistrate having jurisdiction in the place where the offence was committed to the prosecution. If an application for such consent had been made to the magistrate as stipendiary magistrate he should under the circumstances have refused it. Exercising now a similar discretion he refused to issue the summons.

Henriques showed cause.-In the first place the magistrate has heard and determined the matter. He has done all he is bound by law to do. The application was made ex parte and he heard the applicant fully. [Lord ALVERSTONE, C.J.Undoubtedly the magistrate gave a full hearing; the real question is whether or not he had a discretion to refuse the summons after a primâ facie case was made.] As to that the magistrate put his decision on two grounds, either of which, I submit, would be sufficient to sustain it. In the first place he held that the application was vexatious, and that if he did issue a summons he would on that ground dismiss it. I submit that where the magistrate has a discretion to dismiss a summons he has a discretion to refuse to issue it. In the second place he held that the information was really laid in regard to an offence against the observance of the Lord's Day, and that it would have been more properly laid under the Lord's Day Act (29 Car. 2, c. 7). If it had been so laid, then, under the Sunday Observance Prosecution Act 1871, the written consent of himself or of certain other authorities would have been necessary before the summons could be issued. If application had been made to him for such consent he would have refused it, and exercising the same discretion now he refused it. Sect. 16 of 3 Geo. 4, c. cvi., is practically identical with sect. 1 of the Lord's Day Act. Both these grounds are, I submit, relevant to the consideration of whether or not a summons should issue, and if so the magistrate has acted within his powers in refusing to issue this summons, and this court will not review his decision. Counsel cited:

Reg. v. Adamson, 33 L. T. Rep. 840; 1 Q. B. Div. 201;

Ex parte Lewis, 59 L. T. Rep. 338; 21 Q. B. Div. 191;

Reg. v. Ingham, 14 Q. B. 396;

Reg. v. Boteler, 8 L. T. Rep. 514; 33 L. J. 101, M. C. J. J. Johnson for the prosecutor.-In the first place, even if this information were laid under the Lord's Day Act, the consent of the magistrate would not be necessary to the issue of the summons. Under the Sunday Observance Prosecution Act of 1871 the magistrate is only one of the authorities who may consent to a prosecution. And in dealing with this case the magistrate used "vexatious not as applying to the mode of proceeding in this particular prosecution, but rather as applying to the policy of the Act. The Act in this case is not a Sunday Observance Act. [Lord ALVERSTONE, C.J.-The magistrate's complaint is that you are using it as if it were a Sunday Observance Act. What objection is there to his taking into consideration that the proceedings should more properly be taken under MAG. CAS.-VOL. XX.

[K.B. DIV.

another statute ?] It is for the prosecutor to decide under what statute he will proceed. If he makes a primâ facie case under any statute he may choose, I submit that, unless the magistrate does not believe the evidence, he has no discretion but to issue the summons. Here the magistrate has chosen to dissent from the policy of the statute. He says that to enforce the law would be a hardship to the community. That is what he means when he says the prosecution is vexatious. [CHANNELL, J. But the magistrate. having issued the summons, might at the hearing dismiss it on these grounds. Why then should he not take them into consideration in determining whether he should issue any summons at all?] Simply because the law gives him no such right. On issuing the summons he is only acting ministerially. It is the right of the prosecutor to have his complaint heard.

Lord ALVERSTONE, C.J.-We are asked to issue a mandamus to order the learned magistrate to grant this summons. I do not think we The law has been correctly laid down in Reg. v. Bird (sup.), where it is said that a justice of the peace may, in the exercise of his discretion, refuse to issue a summons if to issue

can do so.

a

I

summons would be vexatious and improper, even if there were evidence of the offence. understand Mr. Bros in this case to say that under the circumstances the issue of a summons would be improper. The summons is sought to be taken out under sect. 16 of 3 Geo. 4, c. cvi., which is a local Act applicable to this district. Sect. 16 prohibits bakers from baking bread or exposing it for sale on Sunday except between certain hours. This section is not in the Sunday Observance Act 1871, but in an Act regulating the baking of bread. That Act was probably passed to relieve bakers from some of the restrictions contained in an earlier Act, and was not passed for the purpose of securing the observance of Sunday. No one looking at the earlier Act could say it was intended as a Sunday Observance Act, as was the Lord's Day Act. As to the latter Act, in 1871 an Act, called the Sunday Observance Prosecution Act, was passed, which, with the object of imposing a restriction on prosecutions under the Lord's Day Act, made necessary to such prosecutions the consent in writing of the chief officer of police of the police district in which the offence is committed, or the consent in writing of two justices of the peace or a stipendiary magistrate having jurisdiction in the place where such offence is committed." Mr. Bros says that in his opinion this was really a prosecution for non-observance of Sunday, and should have proceeded under the Lord's Day Act. If an application had been made to him for leave to prosecute under that Act he would have refused it. The summons applied for was to punish a Jewish baker for selling his bread on Sunday. There was a large Jewish community in the district, and the baker proceeded against had kept his shop shut on Saturday. If he had issued the summons applied for, the learned magistrate says he would have dismissed it at the hearing. I cannot but think that it is quite a proper matter for a magistrate to take into consideration that there are other methods of proceeding better applicable to the nature of the offence alleged. It was not argued that the learned magistrate could not, upon hearing the summons, dismiss on the grounds stated by him. 2 X

K.B. Div.]

Registration of voters-Mistake as to qualification -Declaration by voter-Amendment of list— Parliamentary and Municipal Registration Act 1878 (41 & 42 Vict. c. 26), s. 24.

A declaration made by a voter, under sect. 24 of the Registration Act 1878, correcting an error as to such voter's qualification in the list of voters empowers the revising barrister to amend such list.

Lord v. Fox (65 L. T. Rep. 617; (1892) 1 Q. B. 199) distinguished.

CASE stated by the revising barrister for Great Grimsby.

The name of one Robert Mitchell appeared in the overseers' list of occupiers, division 1, for a "dwelling-house" at 84, Watkin-street, in the borough of Great Grimsby. Objection was taken to it on the ground that Robert Mitchell had not occupied those premises for the full twelve months prior to the 15th July preceding.

A statutory declaration for correcting misdescription in list had been duly filed with the town clerk prior to the 5th Sept., in which it was declared by Robert Mitchell that the correct nature of his qualification and qualifying property was not "dwelling-house " at "84, Watkin-street," but "yard and stables," "back of 84, Watkinstreet."

It was proved to the satisfaction of the revising barrister that Robert Mitchell had for the whole of the twelve months prior to the 15th July preceding occupied the yard and stables mentioned in the declaration adjoining the dwelling-house at 84, Watkin-street, which yard and stables were of the requisite value, and it was submitted on his behalf that the revising barrister should correct the list according to the suggested amendment in the declaration, and substitute" yard and stables for the former qualification "dwelling-house." Foskett v. Kaufman (54 L. T. Rep. 64; 16 Q. B. Div. 279) and Plant v. Potts (63 L. T. Rep. 585; (1891) 1 Q. B. 256) were relied upon.

The revising barrister thought that in the circumstances of this particular case he could not hold that the declaration could be treated as the correction of a misdescription or that it dispensed with the necessity of a formal claim with (a) Reported by J. ANDREW STRAHAN, Esq., Barrister-at-Law.

[K.B. Div.

its incidents of timely notice to overseer, publi. cation, and possible challenge. He accordingly held the declaration to be insufficient, refused to accept it as a correction of the former qualification, and expunged the name of Robert Mitchell from the list of occupation voters.

Notice of appeal was given by Henry Goodrich.

Parliamentary and Municipal Registration Act 1878 (41 & 42 Vict. c. 26),

Sect. 24. Any person who is entered on any list of voters for a Parliamentary borough or any burgess list subject to revision under this Act for a municipal borough, and whose name or place of abode or the nature of whose qualification or the name or situation of whose qualifying property is not correctly stated in such list, or in respect of whom there is any other error or omission in the said list may, whether he has received a notice of objection or not, if he thinks fit, make and subscribe a declaration in the form in that behalf in the schedule to this Act.

The

Percival Hughes for the appellant.-I submit that the revising barrister could amend. declaration here is in the form given in the schedule to the statute, and the corrections made are almost exactly similar to those given in the form: (see Form M.) Besides, although the point has not been expressly decided, the judgments in Foskett v. Kaufman (sup.) and Plant v. Potts (sup.) show that the court there assumed that where a declaration has been made the revising barrister can amend the list. Lord v. Fox (65 L. T. Rep. 617; (1892) 1 Q. B. 199) should be brought to the attention of the court, since it is hostile to my contention, but I ask the court to notice that in that case the fact that there was a declaration was not pressed upon the attention of the learned judges.

The respondent did not appear.

66

Lord ALVERSTONE, C.J.-I think this appeal must be allowed. The facts are as follows: The qualification was stated erroneously as dwelling. house" instead of "yard and stables." I think that the Court of Appeal have held that a declaration made under sect. 24 of the Registration Act 1878 gives the revising barrister power to make alterations in the qualification stated in the list which he could not otherwise make. The section provides that declarations when made shall be open free of charge to public inspection, and sect. 25 provides, further, that if any person falsely or fraudulently signs any such declaration he shall be guilty of a misdemeanour, and punishable by fine or imprisonment. In Foskett v. Kaufman (sup.), which is a case where no declaration had been made, Lord Esher, M.R. says (at p. 289): "If the voter acts under sect. 24 of 41 & 42 Vict. c. 26, then the reason for taking away this power of the revising barrister does not apply, because the declaration must be sent to the clerk of the peace or town clerk as the case may be by a certain date, and the objector has the power of seeing that declaration, and the opportunity of inquiring whether the new claim and the declaration in support of it are true or not, so that he is not taken by surprise at the hearing; and there is a very good reason why the limitation of the revising barrister's power should not take effect in that case." Hence, though the Court of Appeal may not have actually decided this particular point, it has con

it.

DARLING, J.-I agree.

CHANNELL, J.-I also agree. We express no opinion as to whether or not the revising barrister could have made the amendment if there had been no declaration under sect. 24 of the Registration Act 1878, but the effect of that declaration is to enlarge the power of the revising barrister. The revising barrister is to follow the declaration. The person claiming the vote who has omitted to make a correct claim is allowed to correct such omission on the terms that he makes and swears to a declaration. This is the view of the law taken in Foskett v. Kaufman (sup.) and Plant v. Potts (sup.). There was no declaration in these cases, and in Lord v. Fox sup.), where there was a declaration, nothing is said about the effect of it, and therefore that case does not stand in the way of our present decision. Appeal allowed.

Solicitors for the appellant, Routh, Stacey, and Castle, for Henry Thompson and Sons, Grantham.

Nov. 20 and 21, 1901.

(Before Lord ALVERSTONE, C.J., DARLING and CHANNELL, JJ.)

CRABTREE (app.) v. FERN SPINNING COMPANY LIMITED (resps.). (a)

Factories-Young person-Boy cleaning machine -Person in charge starting machine-" Allowing" boy to be in machine-Injury to boyLiability of employers-Factory and Workshop Act 1895 (58 & 59 Vict. c. 37), s. 9, sub-ss. 2, 3. A young person who was employed in a factory by a person in charge of a self-acting machine, was ordered by the person in charge of the machine to clean a part of the machine, and for this purpose the boy was obliged to go into the space between the fixed and traversing portions of the machine. When the order was given the machine was properly stopped; but while the boy was still in this space the person in charge of the machine, thinking the boy was clear of the space, started the machine, whereby the boy received injuries from which he died. Held, that, as the person in starting the machine was acting under the belief that the boy was clear of the space, the boy was not "allowed" by him to be in the prohibited space at the time of the accident, within the meaning of sub-sects. 2 and 3 of sect. 9 of the Factory and Workshop Act 1895, and that the employers, the occupiers of the factory, were not liable in consequence thereof to a fine under sect. 83 of the Factory and Workshop Act 1878, though such occupiers would have been liable for an "allowance" by their

servant.

(a) Reported by W. W. ORR, Esq., Barrister-at-Law.

[K.B. Div.

CASE stated by justices of the peace acting for Oldham in the county of Lancaster.

An information was preferred by the appellant, an inspector of factories and workshops, against the respondents, the Fern Spinning Company Limited, under sub-sect. 2 of sect. 9 of the Factory and Workshop Act 1895.

The information set out that on the 10th May 1901 at Shaw, in the county of Lancaster, the respondents were the occupiers of a certain factory wherein a person was allowed, contrary to the Factory and Workshop Acts 1878 to 1895, to be in the space between the fixed and traversing portions of a self-acting machine, the said machine not being stopped with the traversing portion on the outward run, whereby the respondents were liable to a penalty not exceeding 31.

The following facts were proved or admitted :The appellant was an inspector of factories for the Oldham district; and the respondents were the occupiers of a factory at Shaw, the same being a factory within the meaning of the Factory Acts.

William Ralph was in employment at the factory as a little piecer, and was a young person within the meaning of the Factory Acts. He was so employed by one John Driesen, who was then in the employ of the respondents and in charge of a self-acting machine, and on the day in question (the 10th May 1901) the boy was ordered by Driesen to clean the scavenger cloth hung under the rolling beam of the machine for the purpose of cleaning the top of the carriage as the carriage passes under the cloth. In order to do so the boy was obliged to be in the space between the fixed and traversing portions of the self-acting machine, and was, at the time of the accident, at a distance of sixteen yards or thereabouts from the starting handle of the machine where Driesen was stationed. At the time the order was given the machine was stopped with the traversing portion thereof on the outward

run.

While the boy was still in the space between the fixed and the traversing portions of the self-acting machine, and white cotton threads were stretched over the space, Driesen thinking that Ralph was clear of the space started the machine. The boy was in consequence caught between the carriage, which is the traversing portion of the machine, on the outward run and the spring piece, which is a part of the fixed portion of the machine. Driesen, finding that something prevented the carriage from running in up to its full extent, stopped the carriage on its next outward run, and saw the boy Ralph fall down between the spring piece and the carriage. The boy had received injuries from which he shortly afterwards died.

The carriage of the self-acting machine passes about 4in. underneath and about 10in. beyond the roller beam. The space traversed by the carriage on each run is about 64in. from the front stop to the spring piece against which the boy was crushed. The carriage on the inward run traverses the 64in. in about two seconds. While on the outward run it moves comparatively slowly, traversing the same space in about ten to twelve seconds.

There were no regulations or instructions in the factory whereby persons employed in the space between the fixed and traversing portions of a