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other lading of any kind whatsoever; and all and every person and persons offending against any of the aforesaid provisions for loading and unloading, shall, for each offence, forfeit the sum of 101."
Biggs Murci ELL.
Hannen, for the respondent.—The question in this case is one of great importance to the public safety, especially as it is said that railway Companies are in the daily habit of violating stat. 12 G. 3. c. 61. s. 11., on which this conviction is founded. It is a well known canon in construing Acts of Parliament, that the old law, the mischief, and the remedy are to be considered. Under the old law any quantity of gunpowder might be kept anywhere in one building; the mischief was the enormous danger to the public from large quantities of so dangerous an article being thus collected; and the remedy enacted is, that no more than a certain quantity of it shall be brought together in the metropolis and some other places, and the establishing certain safeguards in keeping and carrying it. Sect. 11 prohibits the having or keeping in those places more than a specified quantity of gunpowder ; sect. 18 limits the quantity that may be carried at one time; and sect. 21 directs that no carriages or vessels employed for the purpose shall stay or delay at any place of loading or unloading. The words “have” and “keep" in sect. 11, and “have” and “ convey” in sect. 18, have each an independent meaning. [Mellor J. Was not sect. 11 meant to apply to dealers and other persons keeping more than a certain quantity?] If the construction of the appellant is correct, any quantity of gunpowder may be collected in a warehouse in the metropolis for the purpose of being sent away in small
parcels to different places, and a continual succession of packages of gunpowder may be sent to a warehouse for the same purpose.
c suisse Pass
Montague Smith (Sleigh with him), for the appellant.The 12 G. 3. c. 61. is a penal Act, and therefore must be strictly construed. This conviction took place under the 11th section, which is directed solely against the offence of keeping and storing gunpowder in large quantities, and was not meant to apply to the case of a party merely having such quantities in his possession. Such a construction would stop the trade in gunpowder, which the preamble of the statute declares ought to be encouraged; for in order to carry on such a traffic there must be some place for collecting and storing the gunpowder. It is true that sect. 11 says no person shall “ have” or “keep” more than a certain quantity of gunpowder in certain places, but the former word is redundant, for the penalty imposed at the end of the section is the forfeiture of all the gunpowder thereby " allowed to be kept." The quantity of gunpowder carried from place to place is greatly increased since the introduction of railways: and when gunpowder is brought by one line of railway to the metropolis to be forwarded thence by another, it is very convenient there should be some halting place in the metropolis ; otherwise it would be necessary to forward it by the next passenger train, instead of sending it by night in a goods train. The warehouse used by the appellant was a mere halting place in the course of a transit.
Hannen, in reply, observed that railways having been introduced since stat. 12 G. 3. c. 61., the quantity of gun
powder carried by them could not have entered into the contemplation of the Legislature by which that statute was passed.
CROMPTON J. I do not think that this is a "keeping" of gunpowder within 12 G. 3. c. 61. s. 11. I was struck at first by what Mr. Hannen said as to that section using both the words “have” and “keep.” It was, however, answered and turned against him by what Mr. Smith pointed out, that at the end of the section the penalty is imposed for keeping a quantity of gunpowder in excess of that “allowed to be kept.” The phrase “have or convey" in sect. 18 also induces me to think that in both sections “have” is synonymous with the word that follows it, namely, “ keep” in sect. 11, and "convey” in sect. 18; and I am strengthened in that view by the observation of my brother Mellor that sect. 11 seems directed against persons keeping above a certain quantity of gunpowder; which shews the kind of keeping that was meant, that is to say, keeping in the sense of “storing.” But one very strong matter to my mind is, that both in the preamble and throughout the Act “keeping” and “carrying are kept distinct. The preamble recites that it is necessary to make regulations for the “ keeping and carriage” of gunpowder ; and in the Act we find one set of sections relating to "keeping,” and another to “carrying."
The purposes of trade render it necessary that gunpowder should pass through London: and it appears to me that it may make a halt there without infringing this section of the statute. No doubt there is great weight in Mr. Hannen's argument, that there would be a great stock of gunpowder kept in one place in the
metropolis for a long time, or perhaps always, seeing that as some parcels went out others might come in. But on the other side the argument is unanswerable that, either in the carriage of gunpowder by railways as now, or by vehicles as was the practice when this Act was passed, there must be halting places for it, and I do not see here any provision against them. We need not decide, when a party receives gunpowder in the course of transit for a necessary halt, how long a delay would become a “ keeping" within this Act. I am inclined to think it would be so if he kept it for an unreasonable time; and the 21st section, which allows eighteen hours as the reasonable time for unloading gunpowder from barges &c. seems to afford an analogy. Now it is very properly found by the case that the warehouse where this gunpowder was received was a mere “ temporary halting place” during a transit; and it might with propriety be called a transit shed. To deposit gunpowder there for a reasonable time is no offence under this section ; if it is an offence within the Act at all it must be under the section against carrying gunpowder.
MELLOR J. (the only other Judge present) concurred.
Judgment for the appellant (a).
(a) The 12 G. 3. c. 61. is now replaced by 23 & 24 Vict. c. 139.
LAWRENCE, Clerk, appellant, The Churchwardens Wednesday,
May 7th. and Overseers of the Parish of TOLLESHUNT
Tithe rent KNIGHTS, respondents.
charge. Poor rate.
Incumbent. An incumbent, owner of a tithe rent charge, who voluntarily endows a District parish. District parish formed, for spiritual purposes, out of part of his own parish, by granting to the minister of such new District parish a rent charge charged on the tithe rent charge, is not entitled, in an assessment to the poor rate, to claim a deduction from the total amount of tithe rent charge in respect of the portion which he has thus granted away.
SPECIAL case, under 12 & 13 Vict. c. 45. s. 11.
This was an appeal by the Rev. Charles Lawrence, clerk, hereinafter called the appellant, against a certain rate or assessment, entitled “An assessment for the relief of the poor of the parish of Tolleshunt Knights, in the county of Essex, and for other purposes chargeable thereon according to law," made, assessed and confirmed in December, 1860, after the rate of 9d. in the pound, whereby the appellant was rated and assessed as the owner and occupier of the following property for the amount and in manner following, that is to say :