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1862.

BIGGS, appellant, MITCHELL, respondent.

Where several packages of gunpowder, amounting in the whole to 300 lbs. weight, were sent by different persons to a warehouse in the metropolis belonging to a carrier and licensed carman, as a temporary halting place in their transit, until they should afterwards be forwarded by country carriers to their several destinations: held, that this was not an unlawful having or keeping of gunpowder within 12 G. 3. c. 61. s. 11.

CASE

ASE stated by the Lord Mayor of London for the
opinion of this Court, under 20 & 21 Vict. c. 43.

The appellant was, on the 22d March, 1861, convicted before the Lord Mayor of London, on the information of the respondent, (one of the inspectors of the city of London Police force), under 12 G. 3. c. 61. s. 11., for that he, on the 15th day of March then instant, in one Swan Yard, Bishopsgate Street Without, in that city, unlawfully did have and keep at one time more than fifty pounds weight of gunpowder, to wit, three hundred pounds weight of gunpowder, in a certain warehouse there occupied by him, he not then being a dealer in gunpowder, and was adjudged to pay a penalty of 107. and costs.

Upon the hearing of the information it was proved, on the part of the respondent, that on the day named, about two o'clock in the afternoon, he, with another inspector of the city police, seized, under a search warrant granted by the Lord Mayor, six packages of gunpowder, weighing together 300 lbs. weight, which they then found on the premises of the appellant, who was a carrier and licensed carman, in a sort of warehouse where goods of every description were then kept, for the purpose of

Saturday, April 26th.

12 G. 3. c. 61.

8. 11. Keeping gunpowder.

Carrier.
Warehouse.

1862.

BIGGS

v.

MITCHELL.

being afterwards removed by country carriers to their several destinations. These packages of gunpowder, which were not covered over with tarpaulins, had been sent a few hours before, from different persons, to be forwarded by carriers to different places. The appellant was aware of the nature of the contents of these packages, and it was proved to the satisfaction of the Lord Mayor that they were placed in the warehouse as a temporary halting place in the course of their transit, and that they would have been sent away from the appellant's premises in about two hours from the time they were so found by the inspector of police, and that the appellant had entered them in the book which he, as a carrier, kept of the goods received and sent out.

It was contended, on the part of the appellant, that the Act of Parliament was intended by the Legislature to apply only to persons "having" or "keeping" in their possession a quantity of gunpowder beyond what was prescribed and allowed, not to gunpowder in transitu, which that in question was; that the appellant merely kept a dépôt for goods in transitu, as was proved to the satisfaction of the Lord Mayor; and that, if he was to be held to have committed an infraction of the law by having there for a short interval of time a quantity of gunpowder, with other goods, on their way to different destinations, there was not a railway Company in the kingdom which did not contravene the statute at one or other of its stations almost daily; that the words "have" or "keep" at any one time, in the 12 G. 3. c. 61. s. 11., contemplated a man "keeping, for an indefinite period, a prohibited quantity of gunpowder," and could not apply to the appellant, who had the packages in question in his warehouse, not for any unreasonable time, but only for an

interval consistent with the exigencies of the trade, and necessary for their several conveyance to their final destination.

The Lord Mayor, however, being of opinion that the Legislature intended, by the Act of 12 G. 3. c. 61., particularly when considered in connection with the 18th and 21st sections, which impose penalties on persons engaged in the conveyance of gunpowder who shall not properly cover packages of gunpowder whilst being conveyed, or who shall not use all due diligence in the loading or unloading of it, that gunpowder should only be removed in carriages constructed or used expressly for the purpose, and with no other commodities, or promiscuously as the packages in question were then sent and deposited, and that therefore the appellant had brought himself within the operation of sect. 11 of the 12 G. 3. c. 61., and he thereupon gave his determination against the appellant in the manner before stated.

The question on the above statement for the opinion of this Court was, whether the appellant did "have or keep" at one time the said excessive quantity of gunpowder within the intent and meaning of the 12 G. 3. c. 61. If the Court should be of opinion that he did not so "have or keep" the same, then the information was to be dismissed; but if the Court should be of opinion otherwise, the conviction was to stand.

The question in this case turned on the 12 G. 3. c. 61. entitled "An Act to regulate the making, keeping, and carriage of gunpowder," &c.

The preamble of the statute is as follows.

"Whereas the manufacture of gunpowder within Great Britain, though necessary to be encouraged in B. & S.

VOL. II.

2 M

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1862.

BIGGS

V.

MITCHELL.

respect of the value of gunpowder, as an article of defence and commerce, yet ought to be regulated by law, in order to prevent the great mischiefs which may arise from explosions occasioned by the improper construction and use of the mills, engines, and buildings, employed in the making of gunpowder, and for keeping and carrying gunpowder in too great quantities, or in an improper manner:" (it then recites that a previous Act contained no provision for regulating the making of gunpowder, and was in other respects defective, on which account it might be convenient to repeal the said Act, and, in the room thereof, to have a new law for regulating, as well the making as the keeping and carriage of gunpowder.)

Sect. 11. "No person or persons shall have or keep, at any one time, being a dealer or dealers in gunpowder, more than 200 lbs. of gunpowder; and not being such, more than 50 lbs. of gunpowder, in any house, mill, magazine, storehouse, warehouse, shop, cellar, yard, wharf, or other building or place, occupied by the same person or persons, (all buildings and places adjoining to each other, and occupied together, being to be deemed one house or place within this Act), or on any river or other water, (except in carriages loading or unloading or passing on the land, or in ships, boats, or vessels, loading or unloading, or passing on any river, or other water, or detained there by the tide or bad weather), within the following limits; (that is to say), within the cities of London or Westminster, or within three miles of either of them, or within any city, borough, or market town of Great Britain, or one mile of the same, or within two miles of any palace or house of residence of his present Majesty, &c., or of her present Majesty the

Queen, or any Queen Consort, or dowager, or within

1862.

BIGGS

V.

two miles of any gunpowder magazine, belonging to his Majesty &c., or within half of a mile of any parish MITCHELL. church, or in any other part of Great Britain, (except in mills or other places which at the commencement of this Act shall be used for the making of gunpowder, and the magazines, storehouses, and offices thereto adjoining and belonging, and in the places where it shall be lawful to make gunpowder, or to keep greater or unlimited quantities of gunpowder, by force of the provisions hereinafter contained), on pain of forfeiting all the gunpowder beyond the quantity hereby allowed to be kept, and the barrels in which such gunpowder shall be; and also two shillings for every pound of gunpowder beyond such allowed quantity."

Sect. 18. "No person or persons shall have or convey at any one time within Great Britain more than twentyfive barrels of gunpowder in any waggon, cart, or other carriage by land, or more than 200 barrels of gunpowder, in any barge, boat, or other vessel by water, (except &c.), and all gunpowder conveyed on land or water, (excepting &c.), shall be in barrels close joined and hooped, without any iron about them, and so secured that no part of the gunpowder be scattered in the passage; and each barrel shall contain no more than 100 lbs. of gunpowder; and when conveyed by land shall be entirely inclosed in a leathern bag, or a bag commonly called a saltpetre bag; and every carriage in which gunpowder shall be conveyed by land, shall have a complete covering of wood, painted cloth, tarpaulin, or wadmill tilts, over all the gunpowder therein contained: and also no gunpowder shall be conveyed in any barge, boat, or other vessel by water, (except &c.) that hath not a close deck; and as

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