THE QUEEN v. MASTER. which is by distress on the goods and, in default, by imprisonment of the "offender." [MELLOR, J. That is, because the section is enacting how penalties for offences under the act shall be recovered. It is quite sufficient for the purposes of s. 32 if the power of distress and sale, which is appropriate and strictly in the nature of a civil remedy, be held alone applicable. The commitment is more in the nature of punishment for the offence. COCKBURN, C.J. There is no such magic in the word "enforce;" it is equally applicable to enforcing payment of a debt by civil process as to criminal process; and it may well be that the power to commit is not imported. The nonpayment by an overseer of the balance due to his parish is not one of the things made an offence by s. 97 of 4 & 5 Wm. 4, c. 76; and neither s. 47, which is practically repealed by s. 32 of 7 & 8 Vict. c. 101, nor s. 32 itself, applies the word offence to the nonpayment of the balance, but simply makes it recoverable as penalties are recoverable under the former act. And the fact that the debt is to be recovered in the same summary way as penalties is not sufficient to convert the nonpayment into an offence.] Rex v. Tucker (5 M. & S. 508) does not really touch this question. All that was decided there was that a balance due from an overseer was a debt proveable under the bankruptcy. In Bancroft v. Mitchell (Law Rep. 2 Q. B. 549), it was held that the mere nonpayment of money towards the maintenance of a parent pursuant to an order of justices was in the nature of a criminal offence. [MELLOR, J. The ground of that decision was, that the statute had imposed the duty, and so made the neglect to support a parent an offence.] In Paley on Convictions, 5th ed. pp. 112, 113, it is said: "It may be, as a general rule, that every proceeding before a magistrate, where he has power to convict, in contradistinction to his power of making an order, is a criminal proceeding, whether the magistrate be authorized, in the first instance, to direct payment of a sum of money as a penalty, or at once to adjudge the defendant to be imprisoned; and it must be borne in mind that when a statute orders, enjoins, or prohibits an act, every disobedience is punishable at common law by indictment; in such cases, the addition of a penalty, to be recovered by summary conviction, can hardly prevent the proceeding in respect of the offence from being a criminal one. So here, if the overseer does not pay over the money, in contravention of the statute, he may be indicted. [MELLOR, J. In Bancroft v. Mitchell (Law Rep. 2 Q. B. 549), that an indictment would lie was said not to be the test whether the act was criminal or not.] The nonpayment of this money is at least in the nature of a tort, and although it might be ground for an action of assumpsit, the order of discharge is no bar: 2 Griffith's Bankruptcy, p. 964. ner COCKBURN, C.J. This matter is perfectly clear. The statute directs that the creditor shall proceed to enforce the payment of the money, if it be not paid within seven days after he has certified it to be due, and it is made recoverable in the same summary manas penalties are recovered under the earlier act; but these provisions do not convert the nonpayment of what is merely a debt into an offence. The summary proceedings, therefore, against the overseer, can only attach where there is a debt existing; but the intervening bankruptcy extinguished the debt, and the debt being gone no proceedings could be taken to enforce the payment. MELLOR, J. I am entirely of the same opinion. The fallacy of Mr. Jelf's argument is in not distinguishing between the debt and the means of enforcing it, by the same summary_proceedings as a penalty inflicted for an offence. No doubt the power of commitment is in the nature of punishment for an offence; but summary proceedings for enforcing what is merely a debt must be in the nature of civil, and not criminal, process. Here was a debt duc from the bankrupt which he cannot pay by reason of his bankruptcy, and it would be strange that because the bankruptcy intervened, and so made him unable to pay, it is to be treated as a criminal matter. HAYES, J. I quite agree. Rex v. Tucker (5 M. & S. 508) really decides this point. The Court disregarded Mr. Nolan's argument that this was an indictable matter, and so an offence in the overseer, and they decided that the balance in his hands was debitum in præsenti, although he might only be accountable in futuro, and consequently proveable and discharged by the bankruptcy; and it is clear that, if it be a debt, the nature of it cannot be altered simply by the summary remedy given to enforce it. Rule discharged. Attorneys in the case: Peacock & Goddard, for Mullings, Elliott, & Co., Cirencester. April 21, 1869. ASHWORTH, APPELLANT; Markets and Fairs Clauses Act, 1847 (10 Vict. c. 14), s. 13-Exposing Goods for Sale"Dwelling Place or Shop." By s. 13 of the Markets and Fairs Clauses Act, 1847, after the market-place is opened for public use, every person, other than a licensed hawker, who shall sell, or expose for sale, in any place within the prescribed limits, except in his own dwelling place or shop, any articles in respect of which tolls are authorized to be taken in the market, is made liable to a penalty not exceeding 40s. The appellant was the tenant of a dwelling house and shop, and a piece of ground in front of the shop, in the town of B.; there was a wooden shed affixed to the house, and supported on wooden posts, which had been erected over the piece of ground for eighteen years; and previous to the erection of the shed stone flags had been built into, and formed part of, the house, which projected three feet from the house, and these flags helped to support the wooden shed. The appellant, after a market had been opened for the town, exposed potatoes and other vegetables for sale outside his house and shop, upon the piece of ground and beneath the wooden shed, and was convicted by justices on an information charging that he had contravened the above section. On a case stating the above facts :— Held, by Cockburn, C.J., and Lush and Hayes, JJ. (Mellor, J., dissenting), that the facts shewed that the shed was part of the appellant's dwelling place or shop, and the justices were wrong in convicting him. CASE stated under 20 & 21 Vict. c. 43, by Justices of Lancashire. The appellant was charged upon an information laid by the respondent, being the inspector of nuisances to the Local Board for the district of Bacup: "for that he, the appellant, within six months then last past, to wit, on the 21st of March, 1868, at the township of Newchurch, did, after a market place had been duly opened for public use, and not being a licensed hawker, unlawfully expose for sale in a certain place, not being his own dwelling house or shop, to wit, in Yorkshire Street, within the prescribed limits of the Local Board for the district of Bacup, certain articles for which toll is authorized to be taken in the said market-to wit, onions, oranges, turnips, carrots, potatoes, and cresses.' The Local Government Act, 1858 (21 & 22 Vict. c. 98), was adopted in the town of Bacup in 1863, and in 1864, the Local Board, acting under s. 50 (1), provided a market (1) By 21 & 22 Vict. c. 98, s. 50, the local board are empowered, inter alia, to provide a market place, and construct a market house. . . . But HEYWORTH, RESPONDENT. [4 Q. B. 316.] house for the purpose of holding markets, and the market house was duly declared open for public use on the 17th of August, 1867. The appellant is tenant of a dwelling house and shop, and a piece of ground in front of the shop, all such premises being within the district. Up to the time of the opening of the market house, some of the inhabitants of the town had been in the habit of exposing their goods for sale outside their dwelling houses and shops, either upon the public footpaths, or upon ground attached to their dwelling houses and shops. The occupiers of the house and shop now held by the appellant had, for upwards of forty years at least immediately preceding, and up to the time of laying the information, been in the habit of exposing for sale their various goods and commodities outside the dwelling house and shop, upon the piece of ground which was attached to the dwelling house and shop. A wooden shed affixed to the house, and supported on wooden posts, had been erected and continued over the piece of ground for a period of at least eighteen years; and previous to the erection of the wooden shed there had been stone flags built into and forming part of the house, which projected three feet from the house; the flags still remain beneath, and assist in supporting the wooden shed, and were erected at the same time as the dwelling house and shop, which is one of the oldest buildings in the town, and has been erected upwards of 100 years. On the day named in the information, the appellant exposed potatoes and other articles mentioned in the information, for sale outside his dwelling house and shop, but upon the piece of ground and beneath the wooden structure or shed. The potatoes were in baskets. The other articles were exposed upon moveable boards or shelves, and not in sacks or bags; and it was proved that the articles and things exposed for sale were taken into the shop each evening. It was contended that the annual value of the appellant's dwelling house, shop, and premises would be considerably lessened, if he were deprived of the privilege of exposing his goods outside in manner aforesaid. The appellant had never consented to any interference with his rights, powers, or privileges (if any) by the local board. It was contended, on behalf of the appellant: First. That the exposing goods for no market or slaughterhouse shall be established in pursuance of this section so as to interfere with any rights, powers, or privileges of any person without his consent; and the provisions of 10 Vict. c. 14, so far as they relate to markets, are incorporated. ASHWORTH v. HEYWORTH. sale was, under the circumstances, a right, power, or privilege which could not be interfered with by the local board, without the consent of the appellant. Secondly. That the articles so exposed for sale were not articles in respect of which tolls were authorized to be taken by the local board in their market. Thirdly. That the piece of ground being the property and in the occupation of the appellant, was within the meaning of the word" dwelling place" in s. 13 of the Markets and Fairs Clauses Act, 1847 (10 Vict. c. 14), and therefore within the exception in that statute. (1) The justices were of opinion: First. That the right, power, or privilege claimed was not a right, power, or privilege within the meaning of s. 50 of the Local Government Act, 1858. Secondly. That the articles exposed for sale (or some of them) were articles in respect of which tolls were authorized to be taken in the market. Thirdly. That the words "dwelling place or shop" in s. 13 of the Markets and Fairs Clauses Act, 1847, meant a dwelling place or shop in the popular sense of the terms; and that the appellant, by exposing goods for sale under the wooden structure, was guilty of the offence charged; and they convicted him in a penalty of 2s. 6d. and costs. Crompton Hutton, for the appellant. This structure in which the vegetables were exposed for sale by the appellant, was part of his house or shop, and therefore was within the exception of s. 13 of 10 Vict. c. 14. In Pope ▾ Whalley (6 B. & S. 303; 34 L. J. (M.C.) 76), the structure was really no more than a moveable stall; here the shed is fixed to the house on the appellant's own land. [He also contended that the appellant was exercising a right within the meaning of the proviso in s. 50 of the 21 & 22 Vict. c. 98, citing Ellis v. Mayor of Bridgnorth (15 C. B. (N.S.) 52; 32 L. J. (Č.P.) 273), and that it did not appear that the goods were liable to tolls; as to which he referred to the byelaws, which were made part of the case.] But the Court called upon Quain, Q.C. (J. Kay with him), for the respondent, on the first point. Pope v. Whalley (6 B & S. at p. 313; 34 L. J. (M.C.) at p. 80), shews that it is a question of fact for the justices whether or not any particular (1) 10 Vict. c. 14, s. 13 :-" After the market place is open for public use, every person, other than a licensed hawker, who shall sell or expose for sale in any place within the prescribed limits, except in his own dwelling place or shop, any articles in respect of which tolls are by the special act authorized to be taken in the market, shall for every such offence be liable to a penalty not exceeding 408." structure is a part of a shop, and the Court will not interfere unless it appear that the justices have proceeded on a wrong principle. [COCKBURN, C.J. This shed is merely an accessory to the appellant's shop. He might have built out the walls of his shop on his land, instead of doing that he has the shop open in front, and exposes the vegetables for sale in the shed. The Market Act intended to prevent the nuisance of stalls to be erected, but did not intend to prevent owners of houses exposing their goods for sale in the front of their houses. The magistrates have, in effect, said that they considered themselves bound to understand the word "shop" in its narrowest sense; but it would be a monstrous injustice so to interpret it. LUSH, J. The magistrates have put such an interpretation on the section as would prevent a butcher from hanging meat outside his shop.] In Pope v. Whalley (6 B. & S. at p. 313; 34 L. J. (M.C.) at p. 80), Mellor, J., says that a "shop" implies something more than a place for selling, it means a place for storing also. Here the goods are removed from the shed inside the shop every night. [COCKBURN, C.J. Goods are generally removed from the front of shops into the interior. A shop may be used for sale only, or for both sale and storing.] THE QUEEN, ON THE PROSECUTION OF THE OVERSEERS OF ST. MARY, CARDIFF, RESPONDENTS; v. THE GREAT WESTERN RAILWAY COMPANY, APPELLANTS. [4 Q. B. 323.] Valuation List Appeal against Second Rate-Second Notice of Objection required under Union Assessment Committee Amendment Act, 1864 (27 & 28 Vict. c. 39), s. 1. By 27 & 28 Vict. c. 39, s. 1, it is enacted that before any appeal shall be heard by any sessions against a poor-rate, the appellant shall give twenty-one days notice, with the grounds, to the assessment committee: provided, that no person shall be empowered to appeal to any sessions against a poor-rate made in conformity with the valuation list approved by the committee, unless he shall have given the committee notice of objection against the list, and shall have failed to obtain such relief in the matter as he deems just. The appellants, having been assessed to a poorrate in conformity with a valuation list, gave notice to the committee of their objection to the list, but the committee refused to alter the list, and on appeal the rate was confirmed, subject to a case. While the case was pending, a second rate was made in conformity with the list which remained unaltered as to the appellants, and the appellants having given the twenty-one days notice of appeal against the rate to the committee, applied to the quarter sessions to enter the appeal against the second rute, without having given a fresh notice to the committee of objection to the list: Held, that a fresh notice of objection to the list was a condition precedent to the right to enter the appeal against the second rate. ON an application by the appellants to the Glamorganshire quarter sessions, held on the 31st of December, 1867, to enter and respite an appeal against a poor-rate, made by the respondents, the overseers of the parish of St. Mary, Cardiff, on the 19th of October, 1867, the application was refused, subject to a case. The assessment committee of the Cardiff Union on the 24th of April, 1865, duly approved a valuation list for the parish of St. Mary, in which list the appellants were assessed for the East Bute Wharf, in their occupation, in the rateable value of 14217. The respondents, on the 15th of May, 1867, made a poor-rate, and assessed the appellants on the wharf according to the valuation list. The appellants, on the making of the rate, having previously given the proper notices, objected before the assessment committee, who declined to alter the amount at which the appellants were assessed in respect of the wharf. The appellants then appealed against the rate to the Court of Quarter Sessions, held on the 11th of October, 1867. The only question then being whether the appellants were liable to be rated in respect of wharfage rates or dues, the rate was confirmed subject to a case for the opinion of the Court of Queen's Bench as to the appellants' liability to be so rated. The respondents made another rate on the 19th of October, 1867, in conformity with the same valuation list, and the appellants having previously given twenty-one days' notice of intention to appeal to quarter sessions, to the overseers of the parish, and to the assessment committee, made application to enter and respite an appeal against the second rate on the ground that the case granted on the first appeal was not yet disposed of, and that the same question was at issue. It was objected on the part of the respondents, and admitted by the appellants, that the appellants after the making of the rate of the 19th of October, 1867, had not (so far as the rate appealed against was concerned) gone before or failed to obtain relief from the assessment committee; and it was contended that a notice of objection ought to have been given to the assessment committee against the valuation list, as a condition precedent to an appeal against the last mentioned rate. The appellants contended that the rate having been made on a valuation list in which the figures were the same (so far as they were concerned), and which they had objected to before the assessment committee prior to appealing against a former rate, it was unnecessary that they should again give notice of objection to the valuation list and appear before the assessment committee. If the Court should be of opinion that the Court of Quarter Sessions ought to have granted the application, the appeal against the rate of the 19th of October, 1867, was to be entered and respited. Field, Q.C., and Philbrick, for the respondents. By 27 & 28 Vict. c, 39, s. 1 (1), a (1) 27 & 28 Vict. c. 31, s. 1:-" Before any appcal shall be heard by any special or quarter sessions against a poor-rate made for any parish contained in any union to which the Union Assessment Committee Act, 1862, applies, the appellant shall give twenty-one days notice in writing previous to the special or quarter sessions to which such appeal is to be made of the intention to appeal, and the grounds thereof, to the assessment committee of such union: Provided, that after the 1st of August next no person shall be empowered to THE QUEEN v. MALDEN. appeal to any sessions against a poor-rate framed in conformity with the valuation list approved of by such committee, unless he shall have given to such committee notice of objection against the said list, and shall have failed to obtain such relief in the matter as he deems just and which objection, after notice given at any time in the mauner prescribed by the said act with respect to objections, the committee shall hear, with full power to call for and amend such list, although the same has been approved of, and no subsequent list has been transmitted to them, and if they amend the same shall give notice of such amendment to the overseers, who shall thereupon alter their current rate accordingly." the valuation list, and not against the rate made in conformity with it; for the committee have nothing to do with making the rate. In this case the appellants have given notice of objection to the list (for it is expressly stated in the case to be unaltered), and have failed to obtain relief, before they applied to enter the appeal against this second rate made in conformity with that list. It' would have been idle to go again before the committee; and, moreover, if the committee wished to alter the list, they had ample opportunity given them by the twenty-one days' notice of appeal. THE COURT (Cockburn, C.J., Mellor, Lush, and Hayes, J.J.,) were of opinion that a fresh notice of objection against the valuation list should have been given to the assessment committee, before appealing to the quarter sessions against the second rate; and that the sessions were therefore right in refusing to enter and respite the appeal. Judgment for the respondents. Attorneys for appellants: Young, Maples, & Co. Attorneys for respondents: Cunliffe & Beaumont, for R. W. Williams, Cardiff. April 28, 128, 1869. THE QUEEN, ON THE PROSECUTION OF THE GUARDIANS OF KINGSTON UNION, Parochial Assessments --Union Assessment Com- New houses completely finished and ready for occupation, but not let or occupied at the time of returning the valuation list of a parish, are "ratrable” hereditaments within the meaning of the Union Assessment Committee Act, 1862, and ought to be inserted in the list. AN appeal to the Surrey quarter sessions, by the overseers of Malden, against a supplemental valuation list of the rateable hereditaments of the parish, which had been approved by the assessment committee, was dismissed subject to a case. Charles Blake is one of the inhabitants of the parish of Malden; and before the making of the supplemental valuation list, he erected upon part of a close of land belonging to him, and situate within the parish, five houses, which, together with garden ground enclosed therewith and for the purpose of Occupation therewith, take up about six acres of the land. Pursuant to 25 & 26 Vict. c. 103, s. 25, the appellants, on the 22nd of February, 1868, made a supplemental valuation list for the parish, and returned such supplemental list to the assessment committee of the Kingston Union, to which union the parish belongs, and in such list no mention was made of the houses and garden ground, or of either of them. At the time when the supplemental valuation list was returned to the assessment committee the houses were completely finished and ready for occupation, but neither of them had ever been let or occupied. The assessment committee, upon the supplemental valuation list being returned to them, altered it by inserting the five unoccupied houses of Charles Blake (under s. 20), and they assessed them together with the garden ground attached, at the sum of 425., as their rateable and net annual value, and the committee accordingly thereby increased the rateable and net annual value of the parish by such sum, and thereby raised the rateable value of the parish from 2444/. 5s. to the sum of 28697. 5s. In the valuation lists for other parishes of the Kingston Union, where, within the knowledge of the committee, new houses have been |