1862.

PARKER

V.

GREEN.

crimes, which are also so punishable; such, for instance, as keeping open public houses after certain hours, and a variety of breaches of police regulations which will readily occur to the mind of any one." [Crompton J. Cattell v. Ireson (a) was subsequent to that case. Besides, The Attorney General v. Radloff is no authority either way, as the Court were equally divided in opinion.] In Cattell v. Ireson the marginal note is not borne out by the judgment of Lord Campbell. In Legg, appellant, Pardoe, respondent, (b), Erle C. J., says, p. 298, "I do not assent to the doctrine that all offences under the Act (1 & 2 W. 4. c. 32.) are to be dealt with as criminal offences, because in one case it is provided that imprisonment with hard labour may be inflicted for nonpayment of the penalty." A man imprisoned by a county court for non-payment of costs cannot be looked upon as a criminal. [Crompton J. That is a mere debt.] The information in this case was not for an offence against the law, but for infringing a condition on which a license was granted. Under sect. 21 of 9 G. 4. c. 61. the justices have no power to imprison the party convicted, and can only adjudge him to pay a sum by way of forfeiture, which may, if necessary, be enforced under sect. 25 by imprisonment, but without hard labour, a distinction which is taken by Crompton J. in Cattell, appellant, Ireson, respondent. [Crompton J. The same might be said of a common assault. There can be no difference for this purpose between sending to prison with or without hard labour. Do you mean to contend that the appellant here could have been examined as a witness for the prosecution?]

Yes.

(a) E. B. & E. 91.

(b) 9 C. B. N. S. 289.

Welsby was not called on to reply.

WIGHTMAN J. The Court is against the appellant on all the points which have been made. We have already expressed our opinion relative to the admissibility of the evidence which was received; and the only point on which any shadow of doubt can prevail is that last one, relative to the competency of the appellant as a witness. But, in truth, this is a criminal proceeding within the stat. 14 & 15 Vict. c. 99. s. 3. Looking at the 9 G. 4. c. 61., on which the conviction proceeded, it appears clearly to be treated as a criminal offence: for sect. 21 enacts, "Every person licensed under this Act, who shall be convicted before two justices, &c. of any offence against the tenor of the licence to him granted, shall, unless &c., be adjudged by such justices to be guilty of a first offence against the provisions of this Act relative to the maintenance of good order and rule ;" and for that the punishment is, not imprisonment it is true, but a fine. And in the latter part of the same section it is provided that, on proof of certain facts, the party shall "be adjudged to be guilty of a third offence against the provisions of this Act;" and it also goes on to provide that the justices may, in their discretion, adjourn the case to the quarter sessions, which may "adjudge such person to be guilty of a third offence against the provisions of this Act," and "punish such offender by fine,"-thus treating fine as a punishment for offence against good order and rule. If the argument of the appellant's counsel is right, the appellant might be made to convict himself, and be punished.

CROMPTON J. (The only other Judge present.) I am

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entirely of the same opinion. I thought at first that the only tenable point was the question of the admissibility of the evidence of what occurred on the former occasion. For as to these prostitutes behaving as they did being bad characters, and the landlord knowing it, I entertain no doubt. But Mr. Welsby removed that difficulty by admitting that the mere fact of the defendant having been guilty of receiving prostitutes before would not do, and would come within the principle of Reg. v. Oddy (a); but that the question really asked the witness was, had those same women been in the house on the former occasion? That is evidence (slight I admit) of the defendant having known them and their character.

The remaining point is the rejection of the evidence of the appellant when he wished to be called as a witness for himself, and Mr. Lopes made more of that than of the others. He has put several cases, and, among other things, has cited some observations of mine and of a much higher authority. But those observations of mine were in answer to an argument of counsel that imprisonment under this enactment was imposed, not for the act, but for the nonpayment of the fine, so that it was analogous to a ca. sa. for debt. I did not mean to say that the power to imprison was necessary to constitute the proceeding a criminal one.-I always thought otherwise. The words of Erle C. J., in Legg, appellant, Pardoe, respondent (b), relate to another matter, and his mind was not directed to the question now before us.

I therefore come to the question, are these criminal proceedings? For the Legislature has taken care that a man shall not be competent or compellable in such proceedings to give evidence for or against himself, or be (b) 9 C. B. N. S. 289. 298.

(a) 2 Den. C. C. 264.

compellable to criminate himself. Whether the law
should be altered in these respects we need not inquire.
It is well established that, wherever a party aggrieved
is suing for a penalty, where the proceeding can be treated
as the suit of the party,-as, for instance, an application for
an order in bastardy,--the proceeding is a civil one, and
the defendant is a competent witness. But when a proceed-
ing is treated by a statute as imposing a penalty for an
offence against the public, the amount of which penalty is
to be meted by the justices according to the magnitude of
the offence, there can be no doubt that the proceeding is
a criminal one.
This is not like the case of a suit by a
private individual for his own benefit, nor like The Attor-
ney General v. Radloff (a), where the Crown was suing
for a penalty for its own use. Sect. 25 of this Act
provides that, if the pecuniary penalty be not paid, it
may be enforced by distress, and if that be not practi-
cable, then by committal "to the common gaol or to the
house of correction;" and this therefore raises the point
distinctly, what is the effect of a statute rendering a
party liable to be fined and imprisoned if a fine imposed
on him be not paid? I am of opinion that that pro-
vision constitutes the act an offence against the public,
and the proceeding a criminal proceeding; and I will
go farther, and say that the consequence would be the
same if the statute had only provided that the act
should be punished by fine. I think therefore that the
justices did right in rejecting this testimony.

Conviction affirmed.

1862.

PARKER

V.

GREEN.

(a) 10 Exch. 84.

WILLIAMS against ADAMS.

By sect. 73 of stat. 5 & 6 W. 4. c. 50., if any matter or thing shall be laid upon a highway so as to be a nuisance, and shall not, after notice given by the surveyor &c., be forthwith removed, it shall be lawful for the surveyor &c., by order of a justice, to clear the highway by removing the said matter or thing, and to dispose of the same. Upon an application for an order under the above section against a person through whose land a road passed; held, that the justices had jurisdiction to try whether the locus in quo was a highway or only an occupation road.

CASE stated by justices under stat. 20 & 21 Vict.

c. 43. s. 2.

Upon an information preferred by Thomas Adams, the respondent, the surveyor of the highways in the parish of Marden, in the county of Hereford, against John Price Williams, the appellant, under sect. 73 of the Highway Act, 5 & 6 W. 4. c. 50., charging that the appellant, having placed a quantity of scrapings, stone and rubbish on a certain highway in the said parish, had neglected to remove the sameafter notice so to do had been given to him by the said surveyor; the justices in petty sessions made an order under that section, the validity of which was contested.

but

The material facts stated were that, upon the hearing of the information and complaint, it was proved on the part of the respondent that the road in question led to the houses of the appellant, of the vicar of the parish, and of two other persons, and to the parish church, that it terminated there, and was not a thoroughfare, and that the land on each side of the said road belonged to the appellant. It was contended by the appellant that as he denied the road to be a highway (although he