Exch. of Pleas, 1842. Jan. 22. The keeper of a beer-shop, li censed under 1 Will. 4, c. 64, & 4 & 5 Will. 4, c. 84, is lia ble to the penal ties imposed by 56 Geo. 3, c. 58, s. 2, for having in his possession any of the prohibited articles therein specified, or any other article or THE ATTORNEY-GENERAL v. LOCKWOOD. THIS was an information against the defendant under 56 Geo. 3, c. 58, s. 2, for that he, being a retailer of beer, after the 5th July, 1817, and before the exhibiting of the information, to wit, on &c., at &c., received and took into and had in his custody and possession, a large quantity,. to wit, 500 pounds weight of liquorice, contrary to the form of the statute in that case made and provided, whereby, and by force of the statute &c., the said William Lockwood, so being such retailer of beer as aforesaid, and so offending as aforesaid, hath, for his aforesaid offence, forfeited and lost the sum of £200. There was a second count, for receiving into his custody and possession an article or preparation as a substitute for malt and hops, he being a retailer of beer; a third for having in his custody and possession liquorice, he being a dealer in his possession beer; and a fourth, for having in his possession a certain preparation as a substitute for malt and hops, he being a dealer in beer. preparation to be used as a substitute for malt or hops. In order to render such a person liable to those penalties, for having in any of the ar ticles enume rated in the 56 Geo. 3, c. 58, s. 2, it is unnecessary to aver or prove, either that the party had them in his posses sion to be used as a substitute for malt or had them in The defendant pleaded not guilty. At the trial before Lord Abinger, C. B., at the Middlesex Sittings after last Easter Term, it appeared that in the month of February, 1840, the defendant was licensed to sell beer by retail, under 1 Will. 4, c. 64, and 4 & 5 Will. hops, or that he 4, c. 84. The license was to sell beer, ale, and porter, by retail, in the dwelling-house of the said William Lockwood, and in the premises thereunto belonging, but not to be But where the drunk or consumed in the house or premises. On the 29th of February, 1840, the officers of excise found upon the defendant's premises 28 lbs. of liquorice in a sack of roasted malt. It was contended that the possession of the liquorice his possession with any criminal intention. information is for having in his possession any article not designated by name in that section, it is necessary to shew that it was intended to under the circumstances was an offence against the act be used as a substitute for malt and hops in the making of beer. 56 Geo. 3, c. 58, s. 2. The facts above stated were admitted at the trial, and a verdict was taken for the Crown on the first count of the information, for one penalty of £200, subject to the opinion of the Court, the Crown to be at liberty to enter the verdict on any count of the information that might be applicable to the facts proved. In Trinity Term, 1841, Kelly obtained a rule to enter a verdict for the defendant, upon the ground that the defendant, being licensed under the beer acts, was not liable to the penalties under the 56 Geo. 3, c. 58, s. 2; or to arrest the judgment, on the ground that the count applicable to liquorice contained no allegation that it was for or as a substitute for malt or hops. The Solicitor-General, Jervis, and Wilde, shewed cause. -It will be contended on the other side, first, that as this was the case of a person selling beer, not under a magistrate's license, but under and by virtue of the stat. 11 Geo. 4 & 1 Will. 4, c. 64, continued by 4 & 5 Will. 4, c. 84, the provisions of the 56 Geo. 3, c. 58, do not apply; and secondly, that the information is defective, in not stating that the defendant had the liquorice in his possession as a substitute for malt and hops. As to the first objection,-the words of the stat. 56 Geo. 3, c. 58, s. 2, are, "That from and after the 5th day of July, 1817, no brewer or brewers of, or dealer or dealers in, or retailer or retailers of, beer, shall receive or take into, or have in his, her, or their custody or possession, or make, or use, or mix with, or put into any worts or beer, any liquor, extract, calx, or other material or preparation, for the purpose of darkening the colour of worts or beer, or any liquor, extract, calx, or other material or preparation, such as has been heretofore or as shall hereafter be made use of for or in the darkening of the colour of worts or beer, other than brown malt, ground or unground, as commonly used in brewing, or shall receive or take into, or have in his, her, or their custody or posses Exch. of Pleas, 1842. ATT.-GEN. v. LOCKWOOD. 1842. ATT.-GEN. v. LOCKWOOD. Exch. of Pleas, sion, or use, or mix with, or put into any worts or beer, any molasses, honey, liquorice, vitriol, quassia, coculus Indiæ, grains of Paradise, quinea pepper, or opium, or any extract or preparation of molasses, honey, or liquorice, &c. &c., or any article or preparation whatsoever for or as a substitute for malt or hops; and if any such brewer or brewers of, or dealer or dealers in, or retailer or retailers of beer, shall receive or take into, or have in his, her, or their custody or possession, or make or use in brewing, or mix with or put into any worts or beer, any liquor, extract, calx, or other material, or preparation, for the purpose of darkening the colour of worts or beer, or any liquor, extract, calx, or other material or preparation, such as has been heretofore or as shall hereafter be made use of for or in the darkening of the colour of worts or beer, other than brown malt, ground or unground, as commonly used in brewing, or shall receive, or take into, or have in his, her, or their custody or possession, or shall use, or mix with, or put into any worts or beer, any molasses, honey, liquorice, &c., or any extract or preparation of molasses, honey, liquorice, &c., or any article or preparation whatsoever, for or as a substitute for malt or hops; all such liquor, extract, calx, molasses, &c. &c., article and preparation as aforesaid, and also the said worts and beer respectively, shall be forfeited, together with the casks, vessels, or other packages containing the same, and shall and may be seized by any officer or officers of excise; and such brewer or brewers of, dealer or dealers in, or retailer or retailers of beer, so offending as aforesaid, shall for each and every such offence forfeit and lose the sum of £200." It will be said that the has made an alteration stat. 11 Geo. 4 & 1 Will. 4, c. 64, 1842. ATT.-GEN. v. LOCKWOOD. license. The stat. 11 Geo. 4 & 1 Will. 4, c. 64, has done Exch. of Pleas, no more than allow persons to sell beer by retail, without having that particular sort of license; it has not introduced any new traffic of any kind; a person sells beer by retail, and keeps an alehouse, now as he did before; but the legislature enables him to do so without a magistrate's license. That act does not at all affect the question, whether he is to be considered a seller of beer by retail; all that can be said is, that such person is not a seller of beer who is required to take out a magistrate's license. The object of the legislature was, that retailers of beer should not have it in their power to adulterate the beer they sold to the public, and it can make no difference whether the retailer of beer has a magistrate's license or not. The stat. 11 Geo. 4 & 1 Will. 4, c. 64, recites, that it is expedient for the better supplying the public with beer in England, to give greater facilities for the sale thereof than are at present afforded by licenses to keepers of inns, alehouses, and victualling-houses; and it enacts, that it shall be lawful for any person who shall obtain a license for that purpose under the provisions of this act, to sell beer, ale, and porter by retail in any part of England in any house or premises specified in such license. It enables them to do so without having a license under the former statutes, having taken out one under that statute; but the act itself shews that such a person is a retailer of beer; and it then goes on to state the mode in which the license is to be obtained. The 13th section enacts, that if any person so licensed as aforesaid shall knowingly sell any beer, ale, or porter made otherwise than from malt and hops, or shall mix or cause to be mixed any drugs or other pernicious ingredients with any beer sold in his house or premises, or shall fraudulently dilute or in any way adulterate any such beer, such offender shall for the first offence forfeit any sum not less than £10, nor more than 1842. ATT.-GEN. V. Exch. of Pleas, £20, as the justices before whom such offender shall be convicted shall adjudge. The 14th section regulates the time for keeping open the houses, and imposes a penalty LOCKWOOD. for a breach of that regulation; and the 15th points out the mode in which the penalties may be recovered. It is clear that those penalties are imposed on breaches of the act by the keepers of beerhouses under that statute, but there is nothing preventing the general regulations applying to those persons who retail beer, whether under that act or under former acts of parliament. The imposition of a new penalty could not abrogate the former penalty for a different species of offence. There are a great number of acts of parliament pointing out the distinction between a seller of beer by retail, and a retailer of beer. Such are the statutes 12 Car. 2, c. 23, & 25 Geo. 3, c. 73. There is a recital in the latter act which shews what the distinction is; and it enacts, that every common brewer who shall sell beer or ale, or worts, in any less quantity at any one time than in a whole cask containing four gallons and a half, shall be deemed to sell beer or ale by retail. This is the case of a person selling beer by retail, not to be consumed upon the premises, under an excise license obtained under the Beer Act. There is a definition of an alehouse-keeper in Burn's Justice, title "Alehouses." "Every inn is not an alehouse, nor every alehouse an inn; but if an inn uses common selling of ale, it is then also an alehouse; and if an alehouse lodges and entertains travellers, it is also an inn." So, if a party sells beer by retail, he comes under the common designation in the acts of parliament, of a retailer of beer, or a keeper of a beer or alehouse, and is within the statute 56 Geo. 3. It never could be the intention of the legislature, when they allowed this greater facility for the opening of beerhouses, to remove from the keepers of them all those restrictions which applied to persons who kept beerhouses or alehouses under the license of the magistrates. The statute 1 Will. 4, c. 64, |