(Secs. 82.83.)

Application

of Penalties

Proprietors, &c.

of Hackney Carriages.

or Gig, Wheel Chair, Fly Chair, or Sedan Chair, or other Conveyance within the Borough, so as the same be not used for Hire or plying for Hire.

LXXXII. That all pecuniary Fines and Forfeitures to be rerecovered from covered of any Proprietor or Driver of a Hackney Carriage, or any hired Chairman, shall be applied to the Borough Fund; but no Part of such Fines or Forfeitures shall be paid to the Complainant or Informant; nevertheless any Overcharge (a.) for Fare may be ordered to be returned to the Party aggrieved.

Markets and
Fairs.

Fairs, Mops,

Hirings, &c.

the Streets.

And with respect to Markets and Fairs:

LXXXIII. Whereas certain Fairs, Markets, Mops, and Hirings not to be held in have heretofore been held in the High Street and other Streets and Places within the Town of Cheltenham, and such Fairs, Markets, Mops, and Hirings are a great Nuisance, Obstruction, and Inconvenience to such Streets and Places, and to the Inhabitants thereof and the Public in general, and it is expedient that the same should be prevented, and removed from and out of such Streets and Places, in manner herein-after mentioned: Be it enacted, That after the passing of this Act no Person shall hold any Fair, Market, Mop, or Hiring in, upon, or about the High Street or any other Street within the Borough, nor erect or place in, upon, or about the same or any of them any Stall, Standing, Booth, Carriage, or Thing whatsoever, for the Purpose of selling or exposing to Sale any Goods, Wares, or Merchandises, or any Articles or Things usually sold in Fairs or Markets, or under any other Pretence whatsoever, nor shall any Person stand or loiter in or about the High Street, or any other Street aforesaid, for the Purpose of being hired; and that all such Fairs, Markets, Mops, and Hirings shall from henceforth be held in the present public Market Place in the Borough of Cheltenham, or at such other Place or Places upon private Property as the Person entitled to the said Markets shall from Time to Time direct and appoint; and all Persons who shall so erect or place any Stall, Standing, Booth, Carriage, or Thing, and all Persons, except licensed Hawkers acting as such, (b.) who shall sell or expose for Sale any Goods,

To be held in
Market Place.

Penalty for breaches, &c.

(a.) See section 58 of the Town Police Clauses Act, ante, page 116, to the same effect.

(b.) This Section has had an extended construction placed upon it, prohibiting Parties not only standing at stalls, or standings on market, or tair days, in the streets to sell or expose for sale their butter, eggs, onions, &c. &c. goods, wares, &c., but at all other times prohibiting parties going about or calling at houses, to sell, or offer for sale their Butter, Poultry, &c. &c. It has been

(Secs.83.84.)

Sale of Horses,

Wares, or Merchandises, or any Article or Thing usually sold in Fairs or Markets, and all Persons who shall stand or loiter for the Purpose of being hired, in, upon, or about the High Street, or any other Street as aforesaid, after the passing of this Act, shall forfeit for every such Offence any Sum not exceeding Ten Pounds: Provided always, that nothing in this Act contained Exception of shall extend to prevent the Fairs and Markets being held for the &c. Sale of Horses, Cattle, Sheep, and other Beasts in the several Streets and Places where the same Markets and Fairs have heretofore been accustomed to be holden, until a proper Place shall be found and provided by the Commissioners, and approved of by the Person entitled to the said Markets and Fairs, for the holding of such Fairs and Markets.

and Purchase of

&c.

LXXXIV. That it shall be lawful for the Commissioners to Power of Sale purchase all or any of the Markets and Fairs, with the Market Markets, Tolls Houses, Market Places, Market Yards, Stalls, Standings, Shambles, Conveniences, and Premises thereto belonging, within the Borough of Cheltenham, and the Tolls, Duties, and Payments arising or to arise therefrom, by Agreement with the Owner thereof, and such Purchase shall be One of the Purposes of this Act.

said, that the majority, if not all, the promoters of the Bill never intended such a prohibition. This extended construction not only nullifies the preamble, or recital in the Section, but as regards practically the whole of Cheltenham repeals several of the most important provisions of the Hawking Act, which are in general operation and by which, persons are permitted to sell (inter alia) fish, fruit, or victuals, (a term as L. C. J. Tenterden said "comprising everything, which constitutes an ingredient in the food of man ;") and by which workers or makers of Home wares, or merchandize, or their children, or servants are permitted to carry abroad, or expose to sale, or sell by retail, or otherwise, such home wares, or merchandize, in every City, Borough, town corporate, and market town; and by which persons are permitted to carry about coals in carts, or on horses, &c. and sell the same by retail; and by which, Tinkers, Glaziers, &c. &c. are permitted to go about in their callings, &c. &c. It is contended by those who advocate the extended construction, that the enacting words are more extensive than the preamble, but if looked at rightly they do not appear so. A construction of the clause, inflicting the penalties, more extended than the recital, does not seem authorized, and even extends beyond the prohibition. The prohibition is against erecting, &c. stalls, &c. for the purposes of selling, &c. ; now one penalty is for so erecting, and the words, "who shall sell, or expose," necessarily were intended to include only the other parts of the prohibition namely," sell or expose for sale at such stall, &c. The penalty for standing, or loitering for hire which follows clearly manifests the intentions, and confines the whole 3 penalties to the 3 mischiefs mentioned in the preamble, and prohibited in the first enacting paragraph. Besides, if this extended construction be the correct one, it does, as already observed, not only repeal several of the most important provisions of the Hawking Act, but it alters the Common Law of the Land, and goes far beyond the mischief contemplated in the recital in the Section, and the provisions con templated in the preamble and Title of the Act. For a public Local Act to affect such purposes, the words of such Local act must be unmistakeably clear, and express, not capable of two meanings, and free from all doubt, all which requisites, the most strenuous supporters of the extended construction can scarcely say this Section possesses; besides all this, as a highly penal provi-ion, part of the penalty being payable to the Commissioners, and a private act, (though declared pub lie) and especially restricting a Common Law right, as this extended construction does, it must be construed strictly. It must not be forgot that all public local acts have not the same privilege accorded to them in their construction, as public General Acts, and less latitude is allowed in construing the former, than the latter, how much must that latitude be lessened, when the Public Local Act is supposed to repeal the provisions of a Public General Act. Besides the above objections

Q

(Section 85.)

Powers vested in
Commissioners,

in event of Pur

chase of Mar

kets, Tolls, &c.

to remove Mar

kets, and estab

lish others.

LXXXV. That if the Commissioners should purchase such Markets and Fairs, Market Houses, Stalls, Standings, Shambles, Tolls, and Premises, they may from Time to Time provide and appropriate convenient Places within the Borough for holding and keeping public Fairs and Markets for the Sale of Horses, Cattle, Sheep, Swine, and other live Cattle, Corn and other Grain, Hay, Straw, and other Articles and Things, and for holding public Hirings, and also provide a proper Market Place or Market Places, Cattle-pens, and other Buildings and Conveniences for the Fairs and Markets, and also order that such Place or Places so appropriated be used as public Fairs and Market Places accordingly; and also may appoint a particular Part or Parts of the Market Places and other Places within the Borough, as well for holding and keeping such Fairs and Markets as also for holding public Hirings; and also may appoint a particular Place or Places in the Fairs and Markets, or any of them, for the erecting Stalls or Standings for vending or exposing to Sale Horses, Cattle, Sheep, Swine, or other Animals, Corn, Hay, Straw, and other Appoint Officers, Articles and Things; and also may appoint proper Persons to attend the Markets and Fairs, for the better ordering and governMake Bye Laws, ing of the same, and collecting the Tolls thereof; and also make Byelaws for regulating the said Fairs and Markets, and all Per

&c.

&c.

to an extended construction, there is this general principle, that applies even in the Construction of Public General Acts, whenever the provisions of a new law are opposed to an old law, which is not noticed, and is not distinctly, and affirmatively repealed, or otherwise directly negatived, an implication arises in favour of the continuance of that old law, because it has not been noticed, negative, or repealed by the new law; how much force does this implication obtain when the case is that of a doubtful local act opposed to a clear and express public General Act. In Williams v. Pritchard 4 T. R. 2. and the next case in the same vol., it was held that where the intention appears that the subsequent Act shall not have such an operation, though the words taken strictly and grammatically, would repeal a former Act, the Courts hold that they ought not to recieve such a construction. Both these cases are very similar to the one now in question and appear direct authorities against the extended construction. Lord Coke in his 2nd Institutes p. 386 commenting on the Statute 12 West 2 lays it down, that a mischief not intended to be remedied by a Statute, though within the letter of the law must be taken to be out of the purview of the statute. It may be conceded that some dicta of Judges modify this construction of Acts of Parliament, but in such cases the words have been so clear and express, that no doubt fairly arose as to the meaning and intention of the words, though a doubt might exist as to the intention of the Legislature; in the case in question, no doubt exists as to the intention of the Legislature being against the extended construction, and more than great doubt exists, whether the words fairly convey the meaning or intention of the extended construction. Again a party who with his covered Basket of Poultry knocks at the door of a house, is admitted into the Hall, Kitchen, or other part of the house, and in such part sells, or exposes for Sale the contents of his Basket, cannot be said "to sell or expose for sale" such contents "in, upon, or about the High Street, or any other Street," if the section can bear such a construction, then is the tradesman equally liable to the Penalty, who in his shop front (for example, Fishmongers, Poulterers, Butchers, &c. &c.) exposes his goods or articles for sale. To bring this long note to a conclusion one may express a regret, that seeing so much doubt hangs around the point, the extended construction should have been placed on this clause by a local tribunal, without the aid of the Supe rior Court. Might it not have been well to have left the Complainant to his remedy of applying for a Rule under 11 and 12 Vic. c. 44. s. 5, see note to section 128 post, and so had the Judgment of the Queen's Bench upon the subject.

(Secs. 85.86.

sons coming or resorting thereto, in all Matters relating to the 87. 88. 89.) said Fairs and Markets, and for fixing and ascertaining the Days and Hours when the same respectively shall be held, and also when (in the proper Parts of the said Fairs and Markets respectively) the said respective Commodities shall respectively be begun to be offered, placed, and exposed for Sale, and how long the same may continue exposed for Sale, and also the Mode and Manner of carrying and conveying the said several Commodities to and from such Fairs and Markets, and also the Time or Times when any such Stalls or Standings as aforesaid shall be erected and set up, and taken down or removed.

be held in other

those appointed.

LXXXVI. That after the purchasing of all the Markets, Fairs, No Markets to Tolls, and Premises, and after the making and publishing of any Places than Orders of the Commissioners which shall appoint any particular Place or Places for holding and keeping any such Fairs, Markets, or Hirings as aforesaid, no Person shall hold any Fair, Market, or Hiring in any other Part or Place of the said Borough.

taken.

LXXXVII. That when and if the Fairs and Markets shall be Tolls to be purchased by the Commissioners, and come into their Possession, there shall be paid to them or to the Person to be by them appointed to receive the same, by all Persons holding, using, or occupying any Building, Shed, Stall, Standing, Bulk, Tressel, Block, or other Convenience, Standing Place, or Station, for selling, offering, or exposing to Sale any Provisions, Sheep, Swine, or other live Cattle, Corn, and other Grain, Fish, Butcher's Meat, Poultry, Milk, Butter, Eggs, Vegetable and other Viands and Provisions, Goods, Wares, and Merchandises, Hay, Straw, or Fodder, in the said Market Place or Market Places, the several Tolls, Duties, Rents, and Stallage mentioned, expressed, or contained in the Schedule (C.) to this Act annexed.

may reduce

tore them.

LXXXVIII. That the Commissioners may from Time to Time Commissioners reduce, lower, and abate the Tolls or any of them in such Pro- Toils, and resportions and Manner as to them shall seem expedient; and after the Tolls have been so reduced and abated it shall be lawful for the Commissioners from Time to Time to augment the Tolls so reduced and abated to any Sums not exceeding the Amount of the Tolls fixed and made payable by this Act.

ation of Tolls.

LXXXIX. That upon every such Reduction or Augmentation Notice of Alterof the Tolls the Commissioners shall immediately cause Notice thereof, painted or printed on a Board, to be set up and fixed in

Sections

(90. 91. 92. some public Part within the Limits of the said Market Place, with the Table of the Tolls so reduced or augmented.

Tolls payable every Day of the Week.

When they shall

whom.

XC. That the several Tolls and Stallage Dues shall be paid in respect of every Day of the Week on which any Building, Stall, or other Convenience, Standing Place, or Station, shall be held or occupied, or any Article, Matter, or Thing shall be exposed to Sale.

XCI. That the said Tolls and Stallage Dues to be paid by the be paid, and by Sellers shall become due when and so soon as the several Cattle, Beasts, Articles, Matters, or other Things in respect whereof the same are respectively made payable shall be brought into the said Market Place or Market Places, and before the same shall be driven or taken or permitted to go into any Pen or Pens, Place or Places therein, or be placed on any Stall, Tressel, Block, Bench, or other Convenience; and in case of any Sale thereof in the said Market or Markets, then also the Tolls shall again be payable immediately after the Expiration of the Time allowed for the Removal of such Cattle, Beasts, or other Things, after the Sale thereof; and the said Tolls to be paid by the Buyers shall become due and payable immediately after the Sale thereof.

Recovery of
Tolls.

By distress on
Beasts, &c.

Sale. &c.

XCII. That the several Tolls and Stallage Dues shall be forthwith paid to the Commissioners or to their Collector by the Owner of the several Cattle, Beasts, Articles, Matters, or other Things in respect whereof the same shall be respectively payable, or by the Person accompanying such Cattle, Beasts, Articles, Matters, or Things, and by the Purchaser thereof; and if such Owner, Purchaser, or other Person shall, upon Demand thereof made by the Collector, either immediately or at any Time afterwards, neglect or refuse to make Payment of the said Tolls or any Part thereof, it shall be lawful for the Collector, either by himself or with his Assistants, to seize and distrain the Cattle, Beasts, or other Things in respect whereof the said Tolls or Stallage Dues shall become payable, or any of them, or any of the Goods or Chattels of the Person so neglecting or refusing to pay the same as aforesaid; and if such Tolls, and the reasonable Charges of such Detention and Distress, and of keeping and maintaining the Things distrained, shall not be paid, such Collector shall and may, at the Expiration of Five Days thereafter, sell and dispose of the Things distrained, or any Part thereof, and out of the Monies which shall arise by such Sale shall and may pay or retain such Tolls, and all reasonable Charges incurred by such