C. CAS. R.]

The question for the offence committed by the either or both the sections 75th and 76th sections.

If within both or either of them, the conviction to be affirmed, if not within either a verdict of not guilty to be entered.

13th April, 1874. (Signed) W. R. GROVE. Bowen, Q.C. (E. J. Dunn with him) for the prisoner. The conviction cannot be sustained. The case is not within the language of either section of the statute. [He was then stopped by the court.]

Torr, Q.C., in support of the conviction.-The first count of the indictment is framed upon the 76th section of the 24 & 25 Vict. c. 76, which enacts that "whosoever, being a banker, merchant, broker, attorney, or agent, and being entrusted with the property of any other person for safe custody, shall, with intent to defraud, sell, negotiate, transfer, pledge, or in any manner convert or appropriate the same or any part thereof to or for his own use or benefit, &c., shall be guilty of a misdemeanor." Here the defendant got the money from Miss Taylor to hold safely until he had fulfilled her injunctions to pay off Dewsbury, and pay the balance to Whittaker. [BLACKBURN, J.-The defendant did not fraudulently dispose of the mortgage security. Lord COLERIDGE, C.J.-And it cannot be said that the money was entrusted to him for safe custody.] The second count is framed upon the 75th section, which enacts that "whosoever having been entrusted as a banker, merchant, broker, attorney, or other agent with any money or security for the payment of money with any direction in writing to apply, pay, or deliver such money or security or any part thereof, or the proceeds or any part of the proceeds of such security for any purpose or to any person specified in such direction, shall in violation of good faith, and contrary to the terms of such direction, convert to his own use or benefit, or the use, &c., such money, security, or proceeds, or any part thereof respectively; and whosoever, having been entrusted as banker, merchant, broker, attorney, or other agent, with any chattel or valuable security, or any power of attorney for the sale or transfer of any share or interest in any public stock or fund, &c., for safe custody or for any special purpose, without any authority to sell, negotiate, transfer, or pledge, shall in violation of good faith, and contrary to the object or purpose for which such chattel, security, or power of attorney shall have been intrusted to him to sell, negotiate, transfer, pledge, or in any manner convert to his own use or benefit, &c., such chattel or security, or the proceeds of the same, or any part thereof, or the share or interest in the stock or fund to which such power of attorney shall relate, or any part thereof, shall be guilty of a misdemeanor." The defendant is brought within that provision by the facts, for he was intrusted with the mortgage deed to hand it over to Miss Taylor on receipt of the mortgage money which was to be paid to Dewsbury and Whittaker. [Lord COLERIDGE, C. J.-He was not intrusted with the proceeds of an improperly pledged mortgage deed.] The case falls within the second part of the enactment in sect. 75. [PIGOTT B.-No. The foundation of the offence is that the defendant must have without authority improperly transferred or pledged a chattel or security intrusted to him for

[C. CAS. R.

safe custody or some special purpose. If he had been indicted under sect. 3 for converting to his own use property bailed to him, I am inclined to think he might have been convicted. BLACKBURN J.-This money was not the proceeds of a chattel converted contrary to good faith.]

Lord COLERIDGE, C.J.-I am of opinion that the conviction should be quashed. The indictment is framed under two sections of the 24 & 25 Vict. c. 96, and consists of two counts, the first framed upon the 76th section, and the second upon the 75th section. The first count upon the 76th section is out of the question, because the defendant has not improperly dealt with any property entrusted to him for safe custody within the meaning of that section. Then the second count is framed upon the 75th section, which seems to consist of two parts: the first part relates to the case of a banker, merchant, broker, attorney, or other agent entrusted with any money or security for the payment of money with any direction in writing to apply, pay, or deliver such money or security, or any part thereof, for any purpose or to any person specified in such direction who shall in violation of good faith and contrary to the terms of such direction, convert the same to his own use or benefit. Now this case is not within that part of the section, for here there is no direction in writing to apply, pay, or deliver the money and security Then is the case within the second part of the section? This is, "Whosoever having been intrusted as banker, merchant, broker, attorney, or other agent with any chattel or valuable security or any power of attorney for the sale or tranfer of any share or interest in any public stock or fund for safe custody, or for any special purpose, without any authority to sell, negotiate, transfer or pledge, shall in violation of good faith and contrary to the object or purpose for which such chattel, security, or power of attorney shall have been intrusted, sell, negotiate, &c., or in any manner convert to his own use or benefit, such chattel or security or the proceeds of the same, &c." Now these are the facts: the defendant, as attorney for Whitaker, had obtained from Miss Taylor a sum of money advanced by her on mortgage with which to pay off Dewsbury's prior advance, and to pay over the balance to Whitaker. The mortgage deed was Miss Taylor's, and the moneys in a certain sense the moneys of Dewsbury and Whitaker. mortgage deed was properly drawn and delivered to Miss Taylor, but the defendant misappropriated part of the monies advanced by Miss Taylor on the mortgage. But those monies were not the proceeds of the mortgage improperly converted within the meaning of this enactment, which means shall convert either a security or money intrusted to him for safe custody or for any special purpose. The defendant therefore is not brought within the words of the enactment, and the conviction must be quashed.

The rest of the Court concurring.

The

Conviction quashed. Attorney for the Prosecutor, Nordon, Liverpool. Attorney for the Defendant, Sherratt, Kidsgrove.

ADM.]

[ADM.

COURT OF ADMIRALTY. Reported by J. P. ASPINALL, Esq., Barrister-at-Law.

Feb. 27, 1874.

THE JOHN EVANS.

Salvage-Bond given to Receiver of Wreck-Leave to proceed in Admiralty Court Jurisdiction of County Court County Courts' Admiralty Jurisdiction Act 1868 (31 & 32 Vict. c. 71) sect. 3, 9, 21-Merchant Shipping Act 1854 (17 & 18 Vict. c. 104), sect. 468.

As it is a matter of grave doubt whether the County Courts having admiralty jurisdiction have power to enforce salvage bonds given to Receiver of Wrecks under the Merchant Shipping Act 1854 (17 & 18 Vict. c. 104) sect. 468, the High Court of Admiralty will, on the application of a salvor in respect of whose services such a bond has been given, grant leave to proceed in the High Court under the County Courts Admiralty Jurisdiction Act 1868 (31 & 32 Vict. c. 71), sect. 9.

Semble, that even where leave is so given to proceed in the High Court, that court is not thereby precluded from condemning the plaintiff in costs, if at the hearing of the cause it should appear that the cause was improperly instituted in the court. THIS was an application by the defendants to rescind an order made by the Judge of the High Court of Admiralty, giving leave to institute a suit in that court, or to order that the suit should proceed subject to costs in the same way as though

such order had not been made.

The plaintiffs, who were the owners, master, and crew of the lugger, Wild Boy, moved the court on the previous motion day "for liberty to institute a cause of salvage on behalf of the owners, master, and crew of the lugger Wild Boy against the ship or vessel John Evans, her cargo and freight, and to direct that the bond given to the receiver of wreck at Ramsgate in the sum of 600l. in respect of such salvage services may be brought into the registry of this honourable court." In support of this motion, an affidavit was filed stating that salvage services had been rendered by the plaintiff to the John Evans and her cargo; that a bond had been given to the receiver of wreck at Ramsgate in the sum of 600l. to secure the payment of compensation for such services; that by the Merchant Shipping Act 1854 (17 & 18 Vict. c. 104) sect. 468, power is given to the Admiralty Court to adjudicate upon the amount of salvage, and enforce bonds given under the foregoing circumstances; and that the county courts have no such power, nor has any other court except the Admiralty Court. Upon these facts the Admiralty Court gave leave to institute the suit. The order was made upon the ex parte application of the plaintiff. The defendants now moved to rescind the former order, and in support of their motion filed an affidavit alleging that, although a notice of the former motion had been served upon the defendant, it bad come too late for them to instruct any one to appear on their behalf; that the services were of a very trifling character, and deserving of a small reward, and that the cause ought to have been brought in a county court. In reply to this affidavit the plaintiff filed another denying the plaintiff's statements of fact, and calling the attention of the court to the fact that similar orders had on many previous occasions been made by the court although

opposed by the owners of the salved property. (a) The ship was actually at Monmouth of the commencement of the proceedings.

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W. G. F. Phillimore for the defendants in support of the motion. The plaintiffs applied for leave to proceed here in order to avoid being condemned in costs under sect. 9 of the County Court Admiralty Jurisdiction Act 1868 (31 & 32 Vict. c. 71) if they should recover a less sum than 3001. The reason alleged for their application is that the County Courts cannot enforce a salvage bond given under the Merchant Shipping Act 1854 (17 & 18 Vict. c. 104) sect. 468," (b) Í submit that there was no need of the order as the bond might have been enforced in the county court. The County Court Admiralty Jurisdiction Act 1868, sect. 3, gives County Courts having admiralty jurisdiction power to try as to any claim for salvage-any cause in which the value of the property saved does not exceed one thousand pounds, and in which the amount claimed does not exceed three hundred pounds." [Sir R. PHILLI MORE.-Does that Act gives a plaintiff an absolute right to costs if he obtained leave to proceed here in the first instance ?] Sect. 9 would appear to bear that construction. The plaintiff would be entitled to his costs unless the court positively ordered him to pay them, and in practice this is never done in salvage cases. The Merchant Shipping Act 1854, simply provides a mode in which salvors can get security for the payment of their claims without detaining the property. The receiver is to arrest and take security instead of waiting for the warrant of the court, the amount of salvage is to be settled afterwards. The taking security in this form is only another mode of getting bail. The proceeding to recover salvage remained the same as it was before the Act in claims exceeding 200l., the security only being changed. The jurisdiction of this court in such a case is over a claim of salvage and that jurisdiction is transferred by the County Courts Act to the County Court. Bonds under the amount of

(a) This was done in The Oneiza, The Snaresbrook: The Zetland and The Clotho. In the last mentioned case leave was given to proceed in the High Court although opposed by the owners of ship, cargo, and freight.

(b) This section is as follows:-"468. Whenever any salvage is due to any person under this Act, the receiver shall act as follows; (that is to say) first, if the same is due in respect of services rendered in assisting any ship and boat, or in saving the lives of persons belonging to the same, or the cargo or apparel thereof, he shall detain such ship and boat and the cargo and apparel belonging thereto until payment is made, or process has been issued by some competent court for the detention of such ship, boat, cargo, or apparel. . . . But it shall be lawful for the receiver, if at any time previously to the issue of such process security is given to his satisfaction for the amount of salvage due, to release from his custody any ship, boat, cargo, apparel, or wreck so detained by him as aforesaid; and in cases where the claim for salvage exceeds two hundred pounds it shall be lawful in England for the High Court of Admiralty of Eng land, in Ireland for the High Court of Admiralty of Ireland and in Scotland for the Court of Sessions, to determine any question that may arise concerning the amount of the security to be given or the sufficiency of the sureties; and in all cases where bond or other security is given to the receiver for an amount exceeding two hundred pounds, it shall be lawful for the salvor or for the owner of the property salved or their respective agents, to institute proceedings in such last mentioned courts for the purpose of having the questions arising between them adjudicated upon, and the said courts may enforce payment of the said bond or other security, in the same manner as if bail had been given in the said courts.

2001. given as security for salvage reward are not under the Act within the jurisdiction of any named court; still it is to be presumed that some court has jurisdiction over them. This court has not power over them. Hence it must be concluded that the justices have power by implication to enforce them under sect. 460 of the Merchant Shipping Act 1854. Hence a reason can be found for the express words, giving jurisdiction over bonds over 2001.; the justices would refuse under sect. 460, to entertain a claim where there was a bond for a greater amount, and yet in the Admiralty Court the plaintiff might be condemned in costs if he recovered less than that amount, although he was obliged to introduce his suit there. This is the reason why express power is given to this court; but this does not alter the nature of the claim which still remains a salvage claim. Otherwise the magistrates having no express power given to them, could not enforce bonds under 2001. If these are ordinary salvage claims they are transferred to the County Courts where under 3001. The bond can be enforced in the County Court in whose district the bond is given. The bond is no more than bail or security given to an officer of the court.

Clarkson for the plaintiffs, contra.-This court is the only court which has power to enforce a bond, given to the receiver of wreck in such a case as this. The object of the bond is to release the ship, and to enable her to leave the port where the bond is given. Now, by the County Courts Admiralty Jurisdiction Act 1868 (31 & 32 Vict. c. 71) sect. 21, proceedings in an admiralty cause in the County Court must be commenced" in the County Court having admiralty jurisdiction within the district of which the vessel or property to which the cause relates is at the commencement of the proceedings," provided that this rule is applicable; which is the case here, as the ship is at Monmouth within the district of a County Court having admiralty jurisdiction. Hence the suit in this case must be begun, if in any County Court, at Monmouth. What jurisdiction can the County Court at Monmouth have over the receiver at Ramsgate, to require to produce and enforce a bond given there, or pay over a deposit of money? On the other hand the Admiralty Court has jurisdiction over all receivers of wreck, and can compel the bonds or deposits to be sent to the registry of this court. There is no difficulty as to bonds for amounts under 2001.; the justices on the spot where those bonds are given can enforce them. [Sir R. PHILLIMORE. If the justices have, without express words and by implication only, jurisdiction over bonds for amounts under 2001., why have not the County Courts jurisdiction by implication also over bonds for amounts under 3001. ?] Because the County Courts have no power over receivers of wreck out of their own jurisdiction, and could not enforce a bond given out of their own circuit, even if they could within it. [Sir R. PHILLIMORE.-The County Court Admiralty Jurisdiction Act 1868 does not prevent me, if it should turn out that this suit was improperly instituted in this court, from condemning the plaintiff in costs even if this order stands. The order for leave to proceed is given on an ex parte application, and if I have given it improperly I am not bound by it, and I should be at full liberty to give no costs or less salvage reward. It is a question of considerable doubt whether the statutes have given jurisdiction over receivers of wreck Vol.XXX., N. S., 756.

[ADM.

of

and these bonds in every part in England to the County Courts, whilst there is no doubt that this court has such jurisdiction. That alone is enough to entitle me to give leave to proceed here.] Besides it is doubtful whether the County Courts can have, under any circumstances, jurisdiction in these cases. Their jurisdiction in causes salvage is in rem or in personam only. This is not a proceeding in rem; nor can it be strictly called a proceeding in personam. It is not against the owners alone; it is against the obligee of the bond, who may or may not be the owner. The general terms of the County Courts Act cannot embrace the jurisdiction given by express terms to this court by the Merchant Shipping Act. If such a transfer of jurisdiction had been intended, the Legislature would at least have effected it by giving to the County Courts in express terms jurisdiction over the receivers within their district.

W. G. F. Phillimore in reply.-There is nothing to prevent an agreement being entered into to try at Ramsgate, and then the County Court there would have jurisdiction over the receiver and the bond. The receiver is an officer of the court, and would be of any court where the cause was instituted, and could be punished for not bringing in the bond. This is a cause of salvage, and the County Court has clearly jurisdiction in such

causes.

Sir R. PHILLIMORE.-This is a cause of salvage, in which under the provisions of the County Courts Admiralty Jurisdiction Act 1868 (31 & 32 Vict. c. 71), I made an order permitting the salvors to institute proceedings in this court. An application is now made to me by the defendants to rescind the order. The words of the 9th section are: "If any person shall take in the High Court of Admiralty, or in any superior court proceedings, which he might without agreement have taken in a County Court, except by order of the judge of the High Court of Admiralty, and of such superior court, or of a County Court having admiralty jurisdiction; and shall not recover a sum exceeding the amount to which the jurisdiction of the County Court in that admiralty cause is limited by this Act; and also if any person without agreement shall, except by order as aforesaid, take proceedings as to salvage in the High Court of Admiralty, or any superior court in respect of property saved, the value of which when saved does not exceed 1000l., he shall not be entitled to costs, and shall be liable to be condemned in costs, unless the judge of the High Court of Admiralty, or of a superior court before whom the cause is tried or heard, shall certify that it is a proper admiralty cause to be tried in the High Court of Admiralty of England, or in a superior court.” Now I am of opinion that this section contemplate proceedings being taken by order of this court upon an ex parte application by the plaintiff. At the same time it is competent to the other parties in the suit to apply to have any order so made rescinded; and, moreover, although the section apparently gives alternative modes of avoiding condemnation in costs, the alternatives must be taken together, and there is nothing to prevent the court-if need be and justice should require itfrom condemning the plaintiffs in costs at the hearing, notwithstanding that they may have obtained an order of the court to take proceedings here, and that the court had refused to rescind that order on the application of the defendants.

H. OF L.]

newing publicans' certificates, held on the 15th April 1872, "that in the particular locality within the burgh, situated within the following limits (specifying them), other hours are required for closing inns and hotels and public-houses than those specified in the forms of certificate in schedule A annexed to the Act (25 & 26 Vict. c. 35), applicable thereto," and in granting certain certificates, in the terms of this resolution, had gone beyond the powers conferred upon them by the Public-houses Acts.

The Acts which regulate public-houses and the granting of publicans' certificates in Scotland, are the Acts 9 Geo. 4, c. 58, 16 & 17 Vict. c. 67, and 25 & 26 Vict. c. 35.

The only provision as to the hours for keeping open public-houses, in 9 Geo. 4, c. 58, is contained in the form of certificate, which provides that the hotel, inn, or public-house shall not be kept open during the hours of service on Sundays, ncr unseasonable hours" on other days..

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at

Sect. 11 of 16 & 17 Vict. c. 67, provides, "that in localities requiring other hours for opening and closing public-houses, inns, and hotels, than those contained in the said schedule, it shall be lawful for such justices or magistrates to insert in the said schedule such other hours, not being earlier than six o'clock or later than eight o'clock in the morning for opening, or earlier than nine o'clock or later than eleven o'clock in the evening for closing the same, as they shall think fit."

The forms of certificates contained in the schedule to this Act provide, "that the holder shall not keep open house, or permit or suffer any drinking on any part of the premises belonging thereto, or sell or give out there from any liquors before eight o'clock in the morning, or after eleven o'clock at night."

The later Act (25 & 26 Vict. c. 35) substitutes new forms of certificate for those provided by the Act last quoted; but, as regards the hours of opening and closing, the provisions are identical.

Sect. 2 provides: "That in any particular locality within any county, or district, or burgh, requiring other hours for opening and closing inns, &c., than those specified in the forms of certificates in the said schedule applicable thereto, it shall be lawful for such justices or magistrates respectively to insert in such certificates such other hours, not being earlier than six o'clock or later than eight o'clock in the morning for opening, or earlier than nine o'clock or later than eleven o'clock in the evening for closing the same, as they shall think fit."

Under the provisions of sect. 36 of the last quoted Act, the two previous statutes, so far as not repealed are incorporated with and form part of it.

Rothesay is the chief town of the island of Bute, in the Firth of Clyde. It has a population of about 7800, which is much increased during the summer months by the arrival of visitors. There were thirty-one licensed publicans in the burgh, and the appellants, by their resolutions of the 15th April 1872, above mentioned, defined certain limits within the boundaries of the burgh, which embraced about two-thirds of the whole burgh, and included all the licensed inns, hotels, and publichouses, and left unaffected only parts of the burgh, either not built upon at all or occupied only by outlying villas. Thus the whole burgh, for licensing purposes, was affected by the resolution, which

[H. OF L.

substituted ten o'clock at night for eleven o'clock as the hour for closing all licensed houses, and this hour was inserted in all the certificates for the year which began on the 15th May 1872.

The grocers of the town were not affected by the resolution; and the respondents, feeling themselves aggrieved thereby, commenced the proceedings, which resulted in this appeal.

The Lord Advocate (Gordon, Q.C.), the SolicitorGeneral (Holker, Q.C.), and W. A. O. Paterson (of the Scottish Bar), appeared for the appellants. At the conclusion of their argument,

Southgate, Q.C., Kay, Q.C., and R. V. Campbell (of the Scottish Bar), who were counsel for the re-spondents, were not called upon.

The LORD CHANCELLOR.-My Lords, the question, and the only question to be determined in this case is, whether an order made by the magistrates of the burgh of Rothesay, was within the powers conferred upon them by the Act of Parliament under which they were proceeding, for if the order was within these powers it was not for the Court of Session, and it is not for your Lordships, to examine into the discretion exercised by the magistrates. The exercise of that discretion is entirely for them and for them alone. My Lords, the question in the view which I should submit of it to your Lordships turns really upon one Act of Parliament, the 25 & 26 Vict. c. 35. It is true that before that Act, another Act, that of the 16 & 17 Vict. had been passed upon this subject, but if your Lordships will turn to the Act of the 16 & 17 Vict. you will observe that the form in which that enactment is couched is this, it gives in a schedule one form of certificate of licence to be granted to an hotel or public-house, and in that form there occurs the condition, that the house is not to be opened before eight o'clock in the morning, or to be kept open later than eleven o'clock at night; and then the 11th section of the Act provides, after declaring that the magistrates may grant a licence in the form to which I have referred, that "in localities requiring other hours for opening and closing public-houses, &c., than those contained in the schedule, it shall be lawful for the justices or magistrates to insert in the schedule such other hours, not being earlier than six or later than eight o'clock in the morning for opening, or earlier than nine o'clock or later than eleven o'clock in the evening for closing the same." The proviso, therefore, is a power given to alter or modify the particular form of licence which is contained in the schedule to that Act. But when your Lordships turn to the Act of the 25 & 26 Vict., upon which I shall have inimediately to comment, you will find that the form of certificate given by the earlier Act is entirely swept away and another form substituted for it. Therefore, the proviso in the earlier Act which was to operate upon the form of certificate given in that Act, of necessity comes to an end when the certificate given by the earlier Act is removed out of the way. Therefore, my Lords, without stopping to consider whether there are or are not actual repealing words in the later statute, and without stopping to consider what may have been the meaning of the proviso in the earlier statute, it appears to me sufficient to say that the certificate given in the earlier statute, being now at an end, and being a certificate which cannot be granted, the earlier statute itself is no longer to be considered. My Lords, I then turn to the later statute