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[Hill, J.-The Recorder did not allow [LORD CAMPBELL, C.J.-What do you the questions to be asked.]

ask for? It may be very difficult to say No: because the other persons ought to that the Recorder was wrong, but whether have been called. The question is dis- the search was reasonable or not may decussed in Taylor on Evidence, p. 305, edit. pend much upon the answers given.) 1848. It is submitted that the order of The appellants contend that they are Sessions should be confirmed.

entitled to the judgment of the Court; but, H. Mills and Stevenson, for the appel- at any rate, the case ought to be sent back lants.The Recorder was clearly wrong, to the Sessions to be re-heard.—(They for unless the questions were put and were then stopped.) answered the Court could not tell whether the search which had been made was reason- Lord CAMPBELL, C.J. I adhere to able or not.

Can it be said that in every what has been said by this Court in case it is necessary that the actual custodian The Queen v. Kenilworth and The Queen of the papers must be called ? If so, all v. Saffron Hill, that we will not review evidence would be excluded if the custo- the decision of the Sessions as to whether dian were blind, or if he refused to search, the search which has been made was or was unable to do so. The Recorder reasonable or not, unless we see clearly never put himself in a position to be able that the Sessions were wrong; but we can to decide the matter, and he seems to have look to see whether the inquiry has been thought that it was an inflexible rule that properly conducted or not: if it has been the custodian must be called. But that is properly conducted, we will not interfere, not so-M'Gahey v. Alston (6), where but I think here that it was not properly Alderson, B. said, “ The Court must be conducted. The issue not being whether reasonably satisfied that due diligence has the document existed, but whether a reabeen used ; it is not necessary to negative sonable search had been made, you can every possibility. It is enough to negative only tell whether it was reasonable or not every reasonable probability of anything by hearing the answers which are given to being kept back." There are cases where the inquiries made; and in this way, I such answers have been received and acted think, they are admissible, not as evidence upon.

The Queen v. Morton would be on in the cause, but in order to satisfy the all fours with this case, provided the Re- conscience of the Court whether the search corder had allowed the questions to be put, has been a reasonable one. I think, thereand had received those answers which the fore, that the case should go down again appellants anticipated the witnesses would for a re-hearing, and that the questions and have given ; and the decision upheld in answers should be allowed. The learned The King v. Rowden (7) has been over- Recorder may then form his opinion upon ruled, and The Queen v. Kenilworth is in this point, but at present he has not the point for the appellants. There Lord Den

proper materials before him. man, C.J. said, “As to what is called 'hear- WIGHTMAN, J.-I am of the same opinion say evidence,' I am distinctly of opinion upon the only question to be decided by that it was receivable; it would have been I think that this evidence would be absurd not to act upon it. When the receivable in order to satisfy the Court party got a reasonable account, which upon the preliminary inquiry, whether shewed that the documents could not be there was reasonable ground for believing found, why was he to go further ?" It is that a reasonable search had been made. not possible to prove a search, if the an. I think that the questions should have swers given to the searcher's inquiries are been allowed, and that the answers were not to be proved. In The Queen v. Saffron reasonably receivable in evidence upon this Hill the answers were received and acted point. upon.

Hill, J.-I am of the same opinion,

and on the same ground. (6) 2 Mee. & W. 206; s.c. 6 Law J. Rep. (p.s.)

Appeal to be re-heard. Exch. 29.

(7) 2 Ad. & E. 156.

us.

}

1858.

for 11s., the contents of which she did not ASHERSMITH 0, DRURY. Nov. 8.

know, being unable to read or write ; that,

by the defendant's directions, she took it Truck Act-Payment in Goods-Juris- to an office a-side of the shop called the diction of Justices Delivery of Note Tommy Shop, and asked the clerk there to for Payment in Goods-1 & 2 Will. 4. give her some money on it to buy shoes c. 37.

with ; that such clerk refused to give her

any money, and said that he had none to An artificer, to whom wages were due, give her ; but that he exchanged the piece was paid by his master by means of a note of paper which she brought to him for anfor the payment in goods, the master know- other piece of paper, which he told her she ing that the payment would be made in must take into the shop close by called and goods, and not in the current coin of the known by the name of the Tommy Shop, realm. The agent of the master delivered and described by him as such, and buy goods in obedience to the note, and the mas- victuals with it there ; and that thereupon ter was convicted before Justices of an the said wife of T. Griffin took the piece offence under the Truck Act, although the of paper so given to her in exchange into place where the goods were delivered was the said Tommy Shop close by as directed, not within the jurisdiction of the Justices :- and asked for some money there to buy Held, that the conviction was right, as under shoes with, but that the person serving in the circumstances, the offence was complete the shop refused to give her any money, when the note was given.

not even the amount of 3d. in money when

she begged him to do so; but that what Case stated by Justices for the opinion she received on account of her husband's of this Court.

wages, upon delivering the piece of paper The defendant was informed against in the shop, was paid to her wholly in under the 1 & 2 Will. 4. c. 37, 'An Act goods. It was not proved in evidence to prohibit the payment in certain trades before us, what were the contents of the of wages in goods or otherwise than in the piece of paper first given by the defendant current coin of the realm,' and was charged, to T. Griffin's wife, nor was it proved what under the 3rd section of that act, with were the contents of the other pieces of illegally paying wages on the 2nd day of

paper given to her in exchange at the February now last past, to one Thomas office and at the shop. Griffin, an artificer in one of the trades The place where the wife of T. Griffin enumerated in that act, otherwise than in applied for her husband's wages, and the current coin of this realm, in respect where she received from the efendant of labour done by him in one of such the first piece of paper called by the detrades. The hearing of the complaint fendant a note for the shop, was at the took place before us on the 28th of May works where T. Griffin was employed, 1858, when it was proved that Thomas and was proved to be within the jurisGriffin, being in the employ of the defen- diction of us, the said Justices, but the dant, and an artificer in one of the trades office to which she was directed by the enumerated in the said act, had authorized defendant to take the piece of paper called bis wife to receive wages due and payable by him the note for the shop, as well as to him by the defendant; that thereupon the shop called the Tommy Shop, where the said wife of T. Griffin, on the 2nd of the goods were delivered to her, were at February last, applied to the defendant for some little distance, and not shewn to be her husband's wages, when he replied, within that part of the county which was " that there was no money to be had ; that within our jurisdiction, but alleged to be he could give her no money, but that he within the exclusive jurisdiction of the could give her a note for the shop": mean- Justices of the borough of Walsall, under ing, as she understood, the Tommy Shop, a non-intromittant clause in the charter which was a shop for goods; that the granted to the said borough. Upon the defendant thereupon gave her a piece of evidence, however, we were of opinion, paper, which he called a note for the shop, and found as a fact, that the defendant

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knew at the time he gave the first piece of the act may not have been completed paper, to the wife of T. Griffin, described within the jurisdiction?] by him to her as a note for the shop, that Certainly it is, and the conviction was it would not be paid in the current coin of right. -(He was then stopped.) the realm ; and that he did not intend it Mellish, for the appellant.—The offence should be so paid: he intended and believed for which the appellant has been convicted that she would be compelled to take goods was not committed within the jurisdiction for it; and that whatever it might purport of the Justices, and therefore the conto be in form, the defendant then had viction cannot be supported. It is quite given it to her as a note for goods, and clear that the appellant has only committed knew that she could not obtain money for one offence; and equally clear that if the it, but goods only; and we were of opinion proceeding against him had taken place that the offence was complete within the within the district where the payment was meaning of the said statute, when such made, he would have been without defence. note, instead of money, was first given to The offence is not the giving of the order, T. Griffin's wife, by the defendant, within but the payment in goods. our jurisdiction, and the said note not being [Lord ČamPBELL, C.J.-If this was an within the exception in the 8th section of order for the delivery of goods, that being the said act, we convicted him accordingly the satisfaction for the debt due, would of illegally paying wages otherwise than not it be a payment?] in the current coin of the realm.

The order was not taken in satisfaction. The defendant, and now appellant, con- [WIGHTMAN, J. - The appellant protends that our conviction is bad in law, fesses to give the order as payment.] because we received evidence of matters No; not as payment, but only as done in connexion with the offence out of means of getting payment. Suppose an our jurisdiction, and because the places action brought, this would not amount to where the refusal to pay in money upon

accord and satisfaction, for it is nothing the note took place, (that is to say, the but an agreement to take satisfaction, and office and the shop, were not shewn to be the workman has never been paid at all. within our jurisdiction ; and alleges that [Hill, J.-Would the wife have had the offence was not complete in law until any right to get the goods unless the order after the refusal to pay in money at the had been given her ? Then, is it not all office and the shop; which office and shop, one continuous act pervading a given for the purposes of this case, are assumed space ; part within and part without the to have been at a place out of our juris- jurisdiction of the Justices ? ERLE, J.diction.

The giver of the goods commits no offence. Scotland, in support of the conviction. The act of the appellant was payment -The facts and the finding of the Justices when he set the machinery in motion, entitle the respondents to the judgment of which resulted subsequently in the paythe Court. The appellant has committed ment by the goods. It was his duty to the offence for which he has been con- pay the 11s. in current coin, but instead victed by paying the workman in goods, of doing so he gives this order for the and not in the current coin of the realm. payment by means of goods.] Section 3. enacts, that the entire amount Scotland was not heard in reply. of the wages earned shall be actually paid in the current coin of the realm, and not LORD CAMPBELL, C.J.-I am of opinion otherwise. Section 8, which protects that the Magistrates were right in their payments made by means of Bank notes, decision. They find as a fact that at the shews that the act applies to orders for · time the appellant gave the order he knew payment by goods, as well as to payments that it would not be paid in the current by goods directly.

coin of the realm, and that he did not in(LORD Campbell, C.J. - An act has tend that it should be so paid ; that he been done by the appellant, the beginning intended and believed that Griffin's wife of which was within the jurisdiction of the would be compelled to take goods, that Justices : is not that enough, although he had given it to her as a note for goods,

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and that he knew that she could not ob- we took the view which has been suggested tain money for it, but goods only. That by him. It is sufficient if the act is done is their finding, and upon clear evidence ; within the jurisdiction of the Justices. and I am of opinion that they came to a

Conviction affirmed. proper conclusion. They say, that they were of opinion that the offence was completed within their jurisdiction. I think ihat that finding is well warranted by the 1858. 2 THE MAYOR, ETC. OF BLACKevidence, and that they came to a right Nov. 10.

BURN O. PARKINSON. conclusion, and that in point of law the offence was completed, because this was

Action-Proceedings before Justices an act done by him, he knowing that the

Improvement of Towns Recovered as

Damages—10 f. 11 Vict. c. 34. ss. 149, payment was to be made in goods. WIGHTMAN, J.-I am of the same opin

210.-8 Vict. c. 20. s. 140.–Argument on

Demurrer-Who to begin. ion. This was a payment made by the delivery of the note for the payment in By a special act, incorporating the Railgoods. Now, if the goods had not been ways Clauses Act, 1845, and the Towns Imso paid, there might have been some diffi- provement Clauses Act, 1847, it was enacted, culty; but as they were so paid, the delivery that certain expenses incurred by the Comof the note by the appellant was a pay- missioners in paving streets, fc. might be ment of the workman in goods. It is as "recovered as damages.An action having much payment as in a case where a pro- been brought to recover expenses so incurred, missory note is given in payment, and that - Held, that such action was not maintainpromissory note is afterwards paid. The able, for that the proper construction of the note was given to the wife, who takes it several acts was, that the expenses were to away, produces it at the shop, and gets be recovered as damages upon a proceeding the goods.

before Justices. ERLE, J.-It was the duty of the ap- Where there is a demurrer to a declara. pellant to pay the workman in the current tion, and there are also demurrers to the coin of this realm, and instead of doing so pleas pleaded to that declaration, the plainhe gives an order for the payment in goods. tiff's counsel begins the argument. I think that the view taken by Mr. Mellish was not in the mind of the legislature in The declaration stated, that after the passing this act, and that the man who passing of " The Blackburn Improvement pays wages to his workman must do so Act, 1854," and before and at the time of in current coin ; instead of which, the giving the notices next hereinafter menappellant gives an order that the workman tioned, certain streets (not being highways) should be paid in goods by his agent, and within the said borough were not suffithen that order is changed and payment ciently paved to the satisfaction of the made by a person whom he knows to be plaintiffs ; and the defendant then was the his agent.

owner of certain premises fronting, adjoinHill, J.-The question is, whether the ing and abutting upon the parts of the said act done by the appellant was within the streets respectively, which then were injurisdiction. He was the party who began sufficiently paved as aforesaid. And the the act within that jurisdiction, and thus plaintiffs say, that thereupon, under and he committed an offence within the juris- in pursuance of the said act, they caused diction of the Justices who have convicted notices in writing to be given to the defenhim. Now Mr. Mellish has argued that dant, as owner of the said premises, rewe must apply the rule which prevails in quiring him, within a time specified in the civil cases, and say that this is not a pay- said notices, to pave the said parts of the ment; but I think that, as by section 4, said streets respectively. And the plainany payment made in contravention of the tiffs further say, that the defendant did act is not a payment at all, we should be not comply with the requirements of the applying a rule which was never intended said notices, or any or either of them, and by the legislature to apply to this case, if that after such default by the defendant the plaintiffs, under and by virtue of the other sections in acts incorporated with it. powers in that behalf conferred on them Section 34. states, “that in case at any time by the said act, executed the works men- any street (not being a highway) within tioned and referred to in the said notices, the borough, whether fully made and built, and incurred divers expenses in so doing ; or only partially made and built, or any of all which the defendant before action part thereof, be not sufficiently sewered, had due notice. And the plaintiffs further levelled, paved, flagged and channelled to say, that thereupon, under and by force and the satisfaction of the corporation, it shall virtue of the said act, a certain proportion be lawful for them, at any time after the of the said expenses, according to the commencement of this act, to cause notice frontage of the defendant's said premises, in writing to be given to the respective became due and payable from the defendant owners of the premises fronting, adjoining to the plaintiffs. And the plaintiffs fur- or abutting upon such parts of any such ther say, that the said streets were respec- street as may be insufficiently sewered, tively completed more than three calendar levelled, paved, flagged or channelled, months before action brought, but the requiring them to sewer, level, pave, flag defendant had not then paid the said pro- or channel the same within a time to be portion of the said expenses, or any part specified in such notice ; and if the rethereof. And the plaintiffs further say, quirements of such notice be not complied that by reason of the premises, and by with, the corporation may, if they think force and virtue of the said act, they be- fit, execute the works mentioned or recame entitled before action brought to ferred to therein, and the expenses incurred demand and recover, and that before by them in so doing shall be paid by the action they did everything, and everything owners in default, according to the frontage had been done and had happened to entitle of their respective premises; and such them to demand and recover of and from expenses, together with interest after the the defendant the said proportion of the rate of 5l. per cent. per annum, after the said expenses, together with interest after expiration of three calendar months from the rate of 51. per cent. per annum, after the completion of the street, may be rethe expiration of three calendar months covered from the last-mentioned owners as from the completion of the said streets ; damages." yet the defendant has not paid the same, [LORD CAMPBELL, C.J.-Primâ facie a or either of them, or any part thereof, to right of action is given by these words.] the plaintiffs, but has wholly refused, and Yes; then by section 21, the Towns still refuses, so to do.

Improvement Clauses Act, 1847, 10 & 11 Demurrer, and joinder in demurrer. Vict. c. 34, is incorporated with the local There were also demurrers to the pleas act; and section 149, enacts, that "if the pleaded to this declaration.

owner of any buildings or lands made

liable by this or the special act, for the Manisty, for the defendant, claimed a

repayment to the Commissioners of any right to begin, as he had demurred to the expenses incurred by them, do not, as soon declaration ; but

as the same become due and payable from

him, repay all such expenses to the ComPer Curiam.-- Where there are cross- missioners, the Commissioners may recover demurrers, as in this case, the plaintiff the same from such owner in the same should begin.

manner as damages, or in an action of

debt in any of the superior courts, or J. A. Russell, for the plaintiffs.—The in any other court having jurisdiction." first question is, whether an action will lie Then, section 210. of the same act inin this Court, at the suit of the plaintiffs corporates the clauses of the Railways against the defendant, to recover the Clauses Consolidation Act, 1845, with portion of the expenses claimed in the respect to the recovery of damages not declaration. That depends entirely on specially provided for, and penalties, and section 34. of 17 & 18 Vict. c. clxxxiii., to the determination of any other matter the Blackburn Improvement Act, and some referred to Justices. The 140th section of

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