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[HILL, J.-The Recorder did not allow the questions to be asked.]

No: because the other persons ought to have been called. The question is discussed in Taylor on Evidence, p. 305, edit. 1848. It is submitted that the order of Sessions should be confirmed.

H. Mills and Stevenson, for the appellants. The Recorder was clearly wrong, for unless the questions were put and answered the Court could not tell whether the search which had been made was reasonable or not. Can it be said that in every case it is necessary that the actual custodian of the papers must be called? If so, all evidence would be excluded if the custodian were blind, or if he refused to search, or was unable to do so. The Recorder never put himself in a position to be able to decide the matter, and he seems to have thought that it was an inflexible rule that the custodian must be called. But that is not so-M'Gahey v. Alston (6), where Alderson, B. said, "The Court must be reasonably satisfied that due diligence has been used; it is not necessary to negative every possibility. It is enough to negative every reasonable probability of anything being kept back." There are cases where such answers have been received and acted upon. The Queen v. Morton would be on all fours with this case, provided the Recorder had allowed the questions to be put, and had received those answers which the appellants anticipated the witnesses would have given; and the decision upheld in The King v. Rowden (7) has been overruled, and The Queen v. Kenilworth is in point for the appellants. There Lord Denman, C.J. said, "As to what is called 'hearsay evidence,' I am distinctly of opinion that it was receivable; it would have been absurd not to act upon it. When the party got a reasonable account, which shewed that the documents could not be found, why was he to go further?" It is not possible to prove a search, if the answers given to the searcher's inquiries are not to be proved. In The Queen v. Saffron Hill the answers were received and acted upon.

(6) 2 Mee. & W. 206; s. c. 6 Law J. Rep. (N.s.) Exch. 29.

(7) 2 Ad. & E. 156.

[LORD CAMPBELL, C.J.-What do you ask for? It may be very difficult to say that the Recorder was wrong, but whether the search was reasonable or not may depend much upon the answers given.]

The appellants contend that they are entitled to the judgment of the Court; but, at any rate, the case ought to be sent back to the Sessions to be re-heard. (They were then stopped.)

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LORD CAMPBELL, C.J. I adhere to what has been said by this Court in The Queen v. Kenilworth and The Queen v. Saffron Hill, that we will not review the decision of the Sessions as to whether the search which has been made was reasonable or not, unless we see clearly that the Sessions were wrong; but we can look to see whether the inquiry has been properly conducted or not: if it has been properly conducted, we will not interfere, but I think here that it was not properly conducted. The issue not being whether the document existed, but whether a reasonable search had been made, you can only tell whether it was reasonable or not by hearing the answers which are given to the inquiries made; and in this way, I think, they are admissible, not as evidence in the cause, but in order to satisfy the conscience of the Court whether the search has been a reasonable one. I think, therefore, that the case should go down again for a re-hearing, and that the questions and answers should be allowed. The learned

Recorder may then form his opinion upon this point, but at present he has not the proper materials before him.

WIGHTMAN, J.-I am of the same opinion upon the only question to be decided by us. I think that this evidence would be receivable in order to satisfy the Court upon the preliminary inquiry, whether there was reasonable ground for believing that a reasonable search had been made. I think that the questions should have been allowed, and that the answers were reasonably receivable in evidence upon this point.

HILL, J.-I am of the same opinion, and on the same ground.

Appeal to be re-heard.

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An artificer, to whom wages were due, was paid by his master by means of a note for the payment in goods, the master knowing that the payment would be made in goods, and not in the current coin of the realm. The agent of the master delivered goods in obedience to the note, and the master was convicted before Justices of an offence under the Truck Act, although the place where the goods were delivered was not within the jurisdiction of the Justices :Held, that the conviction was right, as under the circumstances, the offence was complete when the note was given.

CASE stated by Justices for the opinion of this Court.

The defendant was informed against under the 1 & 2 Will. 4. c. 37, 'An Act to prohibit the payment in certain trades of wages in goods or otherwise than in the current coin of the realm,' and was charged, under the 3rd section of that act, with illegally paying wages on the 2nd day of February now last past, to one Thomas Griffin, an artificer in one of the trades enumerated in that act, otherwise than in the current coin of this realm, in respect of labour done by him in one of such trades. The hearing of the complaint took place before us on the 28th of May 1858, when it was proved that Thomas Griffin, being in the employ of the defendant, and an artificer in one of the trades enumerated in the said act, had authorized his wife to receive wages due and payable to him by the defendant; that thereupon the said wife of T. Griffin, on the 2nd of February last, applied to the defendant for her husband's wages, when he replied, "that there was no money to be had; that he could give her no money, but that he could give her a note for the shop": meaning, as she understood, the Tommy Shop, which was a shop for goods; that the defendant thereupon gave her a piece of paper, which he called a note for the shop,

for 11s., the contents of which she did not know, being unable to read or write; that, by the defendant's directions, she took it to an office a-side of the shop called the Tommy Shop, and asked the clerk there to give her some money on it to buy shoes with; that such clerk refused to give her any money, and said that he had none to give her; but that he exchanged the piece of paper which she brought to him for another piece of paper, which he told her she must take into the shop close by called and known by the name of the Tommy Shop, and described by him as such, and buy victuals with it there; and that thereupon the said wife of T. Griffin took the piece of paper so given to her in exchange into the said Tommy Shop close by as directed, and asked for some money there to buy shoes with, but that the person serving in the shop refused to give her any money, not even the amount of 3d. in money when she begged him to do so; but that what she received on account of her husband's wages, upon delivering the piece of paper in the shop, was paid to her wholly in goods. It was not proved in evidence before us, what were the contents of the piece of paper first given by the defendant to T. Griffin's wife, nor was it proved what were the contents of the other pieces of paper given to her in exchange at the office and at the shop.

The place where the wife of T. Griffin applied for her husband's wages, and where she received from the defendant the first piece of paper called by the defendant a note for the shop, was at the works where T. Griffin was employed, and was proved to be within the jurisdiction of us, the said Justices, but the office to which she was directed by the defendant to take the piece of paper called by him the note for the shop, as well as the shop called the Tommy Shop, where the goods were delivered to her, were at some little distance, and not shewn to be within that part of the county which was within our jurisdiction, but alleged to be within the exclusive jurisdiction of the Justices of the borough of Walsall, under a non-intromittant clause in the charter granted to the said borough. Upon the evidence, however, we were of opinion, and found as a fact, that the defendant

knew at the time he gave the first piece of paper, to the wife of T. Griffin, described by him to her as a note for the shop, that it would not be paid in the current coin of the realm; and that he did not intend it should be so paid: he intended and believed that she would be compelled to take goods for it; and that whatever it might purport to be in form, the defendant then had given it to her as a note for goods, and knew that she could not obtain money for it, but goods only; and we were of opinion that the offence was complete within the meaning of the said statute, when such note, instead of money, was first given to T. Griffin's wife, by the defendant, within our jurisdiction, and the said note not being within the exception in the 8th section of the said act, we convicted him accordingly of illegally paying wages otherwise than in the current coin of the realm.

The defendant, and now appellant, contends that our conviction is bad in law, because we received evidence of matters done in connexion with the offence out of our jurisdiction, and because the places where the refusal to pay in money upon the note took place, (that is to say) the office and the shop, were not shewn to be within our jurisdiction; and alleges that the offence was not complete in law until after the refusal to pay in money at the office and the shop; which office and shop, for the purposes of this case, are assumed to have been at a place out of our jurisdiction.

Scotland, in support of the conviction. -The facts and the finding of the Justices entitle the respondents to the judgment of the Court. The appellant has committed the offence for which he has been convicted by paying the workman in goods, and not in the current coin of the realm. Section 3. enacts, that the entire amount of the wages earned shall be actually paid in the current coin of the realm, and not otherwise. Section 8, which protects payments made by means of Bank notes, shews that the act applies to orders for payment by goods, as well as to payments by goods directly.

[LORD CAMPBELL, C.J.-An act has been done by the appellant, the beginning of which was within the jurisdiction of the Justices is not that enough, although

the act may not have been completed within the jurisdiction?]

Certainly it is, and the conviction was right. (He was then stopped.)

Mellish, for the appellant.-The offence for which the appellant has been convicted was not committed within the jurisdiction of the Justices, and therefore the conviction cannot be supported. It is quite clear that the appellant has only committed one offence; and equally clear that if the proceeding against him had taken place within the district where the payment was made, he would have been without defence. The offence is not the giving of the order, but the payment in goods.

[LORD CAMPBELL, C.J.-If this was an order for the delivery of goods, that being the satisfaction for the debt due, would not it be a payment?]

The order was not taken in satisfaction. [WIGHTMAN, J.-The appellant professes to give the order as payment.]

No; not as payment, but only as a means of getting payment. Suppose an action brought, this would not amount to accord and satisfaction, for it is nothing but an agreement to take satisfaction, and the workman has never been paid at all.

[HILL, J.-Would the wife have had any right to get the goods unless the order had been given her? Then, is it not all one continuous act pervading a given space; part within and part without the jurisdiction of the Justices? ERLE, J.— The giver of the goods commits no offence. The act of the appellant was payment when he set the machinery in motion, which resulted subsequently in the payment by the goods. It was his duty to pay the 11s. in current coin, but instead of doing so he gives this order for the payment by means of goods.]

Scotland was not heard in reply.

LORD CAMPBELL, C.J.-I am of opinion that the Magistrates were right in their decision. They find as a fact that at the time the appellant gave the order he knew that it would not be paid in the current coin of the realm, and that he did not intend that it should be so paid; that he intended and believed that Griffin's wife would be compelled to take goods, that he had given it to her as a note for goods,

and that he knew that she could not obtain money for it, but goods only. That is their finding, and upon clear evidence; and I am of opinion that they came to a proper conclusion. They say, that they were of opinion that the offence was completed within their jurisdiction. I think that that finding is well warranted by the evidence, and that they came to a right conclusion, and that in point of law the offence was completed, because this was an act done by him, he knowing that the payment was to be made in goods.

WIGHTMAN, J.-I am of the same opinion. This was a payment made by the delivery of the note for the payment in goods. Now, if the goods had not been so paid, there might have been some difficulty; but as they were so paid, the delivery of the note by the appellant was a payment of the workman in goods. It is as much payment as in a case where a promissory note is given in payment, and that promissory note is afterwards paid. The note was given to the wife, who takes it away, produces it at the shop, and gets the goods.

ERLE, J.-It was the duty of the appellant to pay the workman in the current coin of this realm, and instead of doing so he gives an order for the payment in goods. I think that the view taken by Mr. Mellish was not in the mind of the legislature in passing this act, and that the man who pays wages to his workman must do so in current coin; instead of which, the appellant gives an order that the workman should be paid in goods by his agent, and then that order is changed and payment made by a person whom he knows to be his agent.

HILL, J.-The question is, whether the act done by the appellant was within the jurisdiction. He was the party who began the act within that jurisdiction, and thus he committed an offence within the jurisdiction of the Justices who have convicted him. Now Mr. Mellish has argued that we must apply the rule which prevails in civil cases, and say that this is not a payment; but I think that, as by section 4, any payment made in contravention of the act is not a payment at all, we should be applying a rule which was never intended by the legislature to apply to this case, if

we took the view which has been suggested by him. It is sufficient if the act is done within the jurisdiction of the Justices. Conviction affirmed.

1858. THE MAYOR, etc. OF BLACKNov. 10. S BURN v. PARKINSON.

Action-Proceedings before JusticesImprovement of Towns "Recovered as Damages"-10 & 11 Vict. c. 34. ss. 149, 210.-8 Vict. c. 20. s. 140.-Argument on Demurrer-Who to begin.

By a special act, incorporating the Railways Clauses Act, 1845, and the Towns Improvement Clauses Act, 1847, it was enacted, that certain expenses incurred by the Commissioners in paving streets, &c. might be "recovered as damages." An action having been brought to recover expenses so incurred, —Held, that such action was not maintainable, for that the proper construction of the several acts was, that the expenses were to be recovered as damages upon a proceeding before Justices.

Where there is a demurrer to a declaration, and there are also demurrers to the pleas pleaded to that declaration, the plaintiff's counsel begins the argument.

The declaration stated, that after the passing of "The Blackburn Improvement Act, 1854," and before and at the time of giving the notices next hereinafter mentioned, certain streets (not being highways) within the said borough were not sufficiently paved to the satisfaction of the plaintiffs; and the defendant then was the owner of certain premises fronting, adjoining and abutting upon the parts of the said streets respectively, which then were insufficiently paved as aforesaid. And the plaintiffs say, that thereupon, under and in pursuance of the said act, they caused notices in writing to be given to the defendant, as owner of the said premises, requiring him, within a time specified in the said notices, to pave the said parts of the said streets respectively. And the plaintiffs further say, that the defendant did not comply with the requirements of the said notices, or any or either of them, and that after such default by the defendant

the plaintiffs, under and by virtue of the powers in that behalf conferred on them by the said act, executed the works mentioned and referred to in the said notices, and incurred divers expenses in so doing; of all which the defendant before action

had due notice. And the plaintiffs further say, that thereupon, under and by force and virtue of the said act, a certain proportion of the said expenses, according to the frontage of the defendant's said premises, became due and payable from the defendant to the plaintiffs. And the plaintiffs further say, that the said streets were respectively completed more than three calendar months before action brought, but the defendant had not then paid the said proportion of the said expenses, or any part thereof. And the plaintiffs further say, that by reason of the premises, and by force and virtue of the said act, they became entitled before action brought to demand and recover, and that before action they did everything, and everything had been done and had happened to entitle them to demand and recover of and from the defendant the said proportion of the said expenses, together with interest after the rate of 5l. per cent. per annum, after the expiration of three calendar months from the completion of the said streets; yet the defendant has not paid the same, or either of them, or any part thereof, to the plaintiffs, but has wholly refused, and still refuses, so to do.

Demurrer, and joinder in demurrer. There were also demurrers to the pleas pleaded to this declaration.

Manisty, for the defendant, claimed a right to begin, as he had demurred to the declaration; but

Per Curiam.-Where there are crossdemurrers, as in this case, the plaintiff should begin.

J. A. Russell, for the plaintiffs.-The first question is, whether an action will lie in this Court, at the suit of the plaintiffs against the defendant, to recover the portion of the expenses claimed in the declaration. That depends entirely on section 34 of 17 & 18 Vict. c. clxxxiii., the Blackburn Improvement Act, and some

other sections in acts incorporated with it. Section 34. states, "that in case at any time any street (not being a highway) within the borough, whether fully made and built, or only partially made and built, or any part thereof, be not sufficiently sewered, levelled, paved, flagged and channelled to the satisfaction of the corporation, it shall be lawful for them, at any time after the commencement of this act, to cause notice in writing to be given to the respective owners of the premises fronting, adjoining or abutting upon such parts of any such street as may be insufficiently sewered, levelled, paved, flagged or channelled, requiring them to sewer, level, pave, flag or channel the same within a time to be specified in such notice; and if the requirements of such notice be not complied with, the corporation may, if they think fit, execute the works mentioned or referred to therein, and the expenses incurred by them in so doing shall be paid by the owners in default, according to the frontage of their respective premises; and such expenses, together with interest after the rate of 51. per cent. per annum, after the expiration of three calendar months from the completion of the street, may be recovered from the last-mentioned owners as damages."

[LORD CAMPBELL, C.J.-Primá facie a right of action is given by these words.]

Yes; then by section 21, the Towns Improvement Clauses Act, 1847, 10 & 11 Vict. c. 34, is incorporated with the local act; and section 149. enacts, that "if the owner of any buildings or lands made liable by this or the special act, for the repayment to the Commissioners of any expenses incurred by them, do not, as soon as the same become due and payable from him, repay all such expenses to the Commissioners, the Commissioners may recover the same from such owner in the same manner as damages, or in an action of debt in any of the superior courts, or in any other court having jurisdiction." Then, section 210. of the same act incorporates the clauses of the Railways Clauses Consolidation Act, 1845, with respect to the recovery of damages not specially provided for, and penalties, and to the determination of any other matter referred to Justices. The 140th section of

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