of the peace for the West Riding, who, if the defendant's contention is correct, has no interest in the matter. The money would go to the borough, and the account of the money to the Riding. On the other hand, the plaintiff's construction satisfies every word of the section, for by 12 & 13 Vict. c. 18, s. 1, Bradford is a petty sessional division; the defendant is clerk of that petty sessional division; he will send a copy of the return to the justices of the borough, and will send the return itself to the clerk of the peace for the Riding. That justices of a borough, which has no quarter sessions, acting in the exercise of their summary jurisdiction within the borough in respect of offences against the general law, act for the county, is shewn by Rex v. Amos (2 B. & A. 533), and also by reference to many sections of 11 & 12 Vict. c. 43. If in the course of the hearing of an information a recognizance becomes forfeited and has to be estreated, it must be sent to the clerk of the peace for the county for that purpose, ss. 9, 13, 16, 20; when the defendant is adjudged to be imprisoned he must be sent to the house of correction or common gaol, ss. 19, 21, 22, 24; and when the conviction is drawn up it must be lodged with the clerk of the peace of the county among the other county records, s. 14.

Secondly, as to the penalties imposed under 9 Geo. 4, c. 61, s. 26, the case of Reg. v. Dale (Dears. C. C. 37; 22 L. J. (M.C.) 44) is conclusive in the plaintiff's favour, unless 24 & 25 Vict. c. 75, s. 4, has altered the law. That section was introduced into the Act in consequence of the conflicting decisions in Brown v. Nicholson (28 L. J. (M.C.) 49), and Candlish v. Simpson (1 B. & S. 357; 30 L. J. (M.C.) 178); and was not intended to touch the question of the application of penalties. If the legislature had had any such object in view, one would expect to find an express clause for the purpose dealing with penalties generally, especially since the Act is an Act to amend the Municipal Corporation Act of 5 & 6 Wm. 4. c. 76; and that Act, which dealt both with boroughs having quarter sessions, and also with boroughs having separate commissions of the peace, but no quarter sessions, only gave to the former class of boroughs, to the credit of the borough fund, penalties recoverable on summary convictions, s. 126. The preamble to s. 4 shews that the mischief to be remedied was the doubt as to what justices were competent to grant or withdraw alehouse licences, but this is a matter altogether distinct from the question of the application of penalties. If the defendant's view were to prevail, this declaratory Act, passed to remedy an inconvenience, would work an injustice. Again, there are many sections in the Alehouse Licensing Act where the words "county or place" cannot be construed so as to include boroughs which have separate commissions of the peace, but no separate court of quarter sessions; s. 25

66

speaks of the House of Correction of the county or place;" s. 27 gives an appeal to the quarter sessions of the "county or place:" see also ss. 28, 29, and 33. Lastly, 24 & 25 Vict. c. 75, has in no way affected the definition of the words "treasurer of the county or place" given by the 37th section of the Alehouse Licensing Act, which interprets them to mean "any officer acting in such capacity or charged with the receipt and expenditure of moneys from and out of which the costs of public prosecutions have been usually defrayed." There is no officer answering to this description in such a borough as Bradford: see Reg. v. Dule (Dears. C. C.37 ; 22 L. J. (M.C.) 44).

Manisty, Q.C. (Kemplay with him), for the defendant. First, as to the construction of that portion of 11 & 12 Viet. c. 43, s. 31, which directs the ultimate payment of the penalties, its meaning is fixed by what follows with respect to the accounts. The accounts are to be sent to the justices "assembled at the petty sessions for the division in which such justices as aforesaid (that is, the convicting justices) usually act." Now it is admitted that the return must be made to the borough justices, for it is certain that Bradford is the petty sessional division for which they act; but if that is so, then the treasurer of the borough or place for which they act the treasurer of Bradford, and the penalties must be paid over to him. This would be otherwise if there were no separate commission of the peace, for there would then be no treasurer; but where there is such an officer all the words of the section are satisfied. The construction is confirmed by the change of phraseology at the end of the section, which speaks no longer of the place for which the justices act, but of the "county, &c., within which such division shall be situate." Nor is the direction for rendering accounts to the quarter sessions absurd, for that body imposes the county rate upon the borough and fixes its quota of contribution, and it has besides an interest in the information as a matter of police.

Secondly, the words of 24 & 25 Vict. c. 75, s. 4, are too strong and express to be got over; the preamble cannot overrule them, for its only function is to explain words of doubtful construction, not to qualify what is

certain.

Hannay was not called upon to reply.

KELLY, C.B. We are entirely satisfied, by the very able argument of Mr. Hannay, that the plaintiff is entitled to our judgment. The question is, whether certain penalties are to be paid to the treasurer of the West Riding of Yorkshire, or to the clerk to the justices for the borough of Bradford. The first point we have to decide turns on s. 31 of 11 & 12 Vict. c. 43; and, on the ground that the town of Bradford is a municipal borough, with a sepa rate commission of the peace, though without

a separate court of quarter sessions, it is contended that when the borough justices act within the borough, the "place for which they act is the borough, and not the Riding," and that the penalties are therefore payable to the treasurer of the borough, and not to the treasurer of the Riding. Now, in the first place, we have a decision: Rex v. Amos (2 B. & A. 533), that when borough justices act in matters of general law cognizable by county justices, they act as county justices and not as borough justices. In harmony with this decision we have the case of Mayor of Reigate v. Hart (Law Rep. 3 Q. B. 244), where, under this very section, the same rule was adhered to, and it was determined that the penalties must therefore be paid to the treasurer of the county. The matter is succinctly and decisively put by Lush, J., who says (at p. 250): "In such a case [that is, where the offences for which penalties are imposed are offences against the general law, and not under local statutes], Rex v. Amos (2 B. & A. 533) decides that the justices are acting as county justices, though acting in the borough. If this be so, it seems to me that s. 31 is free from doubt; it says the clerk shall pay the penalty to the treasurer of the county, riding, division, liberty, city, borough, or place for which such justice or justices shall have acted.' The justices here have acted for the county, not for the borough."

It appears, however, that there was there no separate commission of the peace; here there is, and it is said this makes a difference. Let us then now turn to the case of Reg. v. Dale (Dears. C. C. 37; 22 L. J. (M.C.) 44), where there was a separate commission of the peace. This case is cited as an authority upon the second branch of the argument, but it is also decisive upon the first question, since it turned upon words in the Alehouse Act (9 Geo. 4, c. 61, s. 26), similar to those of the section now in question. There, in delivering the judgment of the Court, Jervis, C.J., says (Dears. C. C. at p. 50; 22 L. J. (M.C.) at p. 47): "The prosecutor asserts that the word 'place,' as used in that section (9 Geo. 4, c. 61, s. 26), means a place for which a court of quarter sessions is held. This, we think, is the right construction. In many of the sections in which the words 'county or place' are used, it is manifest that the latter word applies only to cases where quarter sessions are held." The learned judge then refers to ss. 27 and 33, and proceeds: "The interpretation clause shews further, that it was intended that those penalties should be applied towards the costs of public prosecutions, and not to a borough fund, because it explains the words treasurer of a county or place' to mean an officer acting in such capacity, or charged with the receipt and expenditure of moneys from and out of which the costs of public prosecutions have been usually defrayed. The person to receive the penalty is to be an officer acting in the capacity of treasurer of moneys from and out

of which the costs of public prosecutions have been usually defrayed." He then refers to s. 29, by which the justices in quarter sessions are authorized to indemnify justices from their costs of appeal out of the county rate, and concludes: It would be strange that the same word should give to one fund, the borough fund, all the penalties for good convictions, and charge upon another fund, the county rate, all the costs for convictions which could not be sustained."

Now these two cases, taken together, would be conclusive upon both branches of the argument, but for the latter Act of 24 & 25 Viet. c. 75, s. 4, which makes the words county or place," in the Alchouse Act, include every borough having a separate commission of the peace, although it may not have a separate court of quarter sessions, and therefore (it is contended) gives to such borough the penalties recovered under that Act. But that section was enacted, as is stated in the preamble, to meet certain doubts which had arisen on the construction of the Alehouse Act (9 Geo. 4, c. 61), whether borough justices in boroughs having, under the 98th section of the Municipal Corporations Act (5 & 6 Wm. 4, c. 76), separate commissions of the peace, but not separate courts of quarter sessions, had, under the former Act, the power of granting and withdrawing alehouse licences. There had been a conflict of decisions on this point, and the recital clearly points to this conflict as the matter with which the legislature were dealing, and to the solution of this difficulty as the sole object which they had in view. The section then proceeds to enact, or rather to declare, that, "in the construction of the last-mentioned Act (i.e., 9 Geo. 4, c. 61), the words town corporate,' and the words 'county or place,' and the words 'division or place,' include every borough in England having a separate commission of the peace, although it may not have a separate court of quarter sessions." These words are no doubt large enough by themselves to cover the contention of the defendant, and give the penalties levied under the Act to the treasurer of the borough of Bradford; but when we see, from the preamble or recital, that the single object of the section was to provide for the one special case of granting licences, the effect of the preamble is to control the enacting part of the section, and limit it to providing a remedy for the difficulty, by conferring on borough justices, in the cases referred to, the power to license. Looking, therefore, to the cases, and to the intention of s. 4 of 24 & 25 Vict. c. 75, it is clear that both under the Act of Geo. 4, and under 11 & 12 Vict. c. 43, s. 31, the borough justices are acting as county justices, though acting within the borough, and the penalties must be paid over to the treasurer of the place for which they act, and by which the machinery is provided for the trial of such cases when carried by appeal to the court of quarter sessions.

BRAMWELL, B. I am of the same opinion. The case of Mayor of Reigate v. Hart (Law Rep. 3 Q. B. 244) is directly in point, and no attempt has been made to distinguish it except by the argument that there was there no separate commission of the peace; but the Court did not decide that case on any such ground, and to give our assent to the defendant's argument would be to fly in the face of that decision. Blackburn, J., says (Law Rep. 3 Q. B. at p. 249), "I think we must read the latter words, liberty, city, borough, or place, as ejusdem generis with county, riding, division, and as being places having quarter sessions;" and Lush, J., says (Law Rep. 3 Q. B. at p. 250), "Now there is no court of quarter sessions for the borough of Reigate, but only for the county, and if the clerk of the justices receiving a penalty is to pay it over to the treasurer of the county, and render the return to the clerk of the peace of the county, that construction makes the section harmonious, and the provision is fair and reasonable; for if the culprit had gone to prison he would have been maintained by the county, and the borough is part of the county for these purposes; but if the penalty is to be paid into the borough fund it would be unfair, as then the borough would receive a benefit without participating in the burden." It is quite clear therefore that the case was decided on the ground that the borough had no court of quarter sessions, and without any reference to the fact of its having or not having a separate commission of the peace.

As to the other question the matter is as clearly decided by the case of Reg. v. Dale (Dears. C. C. 37; 22 L. J. (M.C.) 44), unless we are to hold that that case is overruled by 24 & 25 Vict. c. 75, s. 4, which would be to hold that this section, which is declaratory, operates upon the earlier Act of 9 Geo. 4, c. 61, so as to make it mean and refer to a person and officer not existing at the time when it was passed, but only subsequently established by the Municipal Corporation Act of the following reign. The case then is clearly in point, and is undistinguishable, and, not being affected by the subsequent act of the Queen, decides this case in favour of the plaintiff.

CHANNELL, B. I am of the same opinion. The Mayor of Reigate v. Hart (Law Rep. 3 Q. B. 244) is an express authority for the plaintiff, unless it is distinguishable on the ground that there was there no separate commission of the peace; but the case was not decided on that ground, but on a ground equally applicable to the present state of facts. As to 24 & 25 Vict. c. 75, s. 4, the enacting words may perhaps, taken by themselves, go beyond the preamble, but their effect may be narrowed on the ground stated

CLEASBY, B. I am of the same opinion. I do not deny that the matter is one of some doubt and difficulty, so far as concerns the construction of s. 31 of 11 & 12 Vict. c. 43; but here, as elsewhere in matters of doubtful construction of statutes, the doubts and difficulties are only to be solved by authority. As soon as we have an authority, the doubt and the difficulty vanish; but if we are to reject this plain method, and, as often as it is suggested that there may be a difficulty, we are to discuss the whole matter anew, there can be no end to the controversy. Now, here we have authorities which apply to the whole matter before us. It is suggested that a distinction is to be drawn because there is here a separate commission of the peace; but that circumstance makes no real difference. If we look at the conclusion of s. 31 it is clear the object was that the amount of penalties should be sent to those who are interested in their collection; the treasurer of the county having an interest in knowing what penalties are to be received by him, is entitled to have a return of them. This is the rational construction; but Mr. Manisty says that the section has a different object, and is intended merely to make a record for general police purposes of the amount of penalties recovered. But the object plainly pointed at by the section is that which I have mentioned. The account is to be sent first, monthly, to the petty sessions of the division in which the justices usually act, and then to the clerk of the peace for the place to which the petty sessional division belongs, at such times as the court of quarter sessions for that place shall fix. It follows therefore that if the borough has no court of quarter sessions, there is no provision at all for the sending to them of any account, except so far as they may be a petty sessional division of some county or place having a court of quarter sessions. It is obvious, therefore, that they are not intended to receive the penalties, but that they must be paid to the treasurer of the county or place to which the petty sessional division belongs; such county or place being, according to the decisions referred to, the place for which the justices have acted.

Judgment for the plaintiff.

Attorneys for plaintiff: Bodham, for Marsden, Wakefield.

Attorneys for defendant: McLeod & Cann, for McGowen, Bradford.