C. B.]

Re SARAH PRICE-Re GEORGE THOMPSON.

[C. B.

discretion to grant this application under the words "or other cause whatsoever," in the same section. The words are 'or if he shall be living apart from his wife, either by mutual consent or by sentence of divorce, or in consequence of his being transported beyond the seas, or from any other cause whatsoever." [ERLE, C. J.-The court cannot take away a husband's marital rights without hearing him; if we hear him possibly a very different complexion may be given to the cause of the wife quitting her husband-it very commonly happens so.] The case nearest to this in the books is Re Sarah Woodcock, 1 C. B. 437. There the concurrence of the husband in a conveyance by the wife of her separate property was dispensed with under 3 & 4 Will. 4, c. 74, s. 91, where the parties were living separately by mutual consent, and the husband refused to join in the conveyance unless part of the purchasemoney was paid to him.

noney comes to the account of the single partner only, I serted her.] It is submitted that the court has a the partnership is not bound. I cannot accede to tlat. I agree, if it is manifest to the persons advancing noney that it is upon the separate account, and so that it is against good faith that he should pledge the partnership, then they should show that he had authority to bind the partnership;" and, in Frankland v. M'Gusty, 1 Knapp. Priv. C. 301, the M. R. says: "I take it to be clear, from all the cases upon the subject, that it lies upon a separate creditor who takes a partnership security for the payment of his separate debt, if it be taken simpliciter, and there is nothing more in the case, to prove that it was given with the consent of the other partners." In the case in hand it is plain that, upon the evidence as it stood at the trial, at the time the plt. took their acceptance he was perfectly well aware that it was given for a separate debt of Sterne's. It seems to me, therefore, that it falls within the rule, that a party who takes an acceptance under such circumstances is bound to show that the single partner had authority to pledge the credit of the firm for such a purpose. There ought, therefore, to be no rule.

BYLES, J.-I am of the same opinion, and I agree entirely with the law laid down at p. 46 of Smith's Mercantile Law, where he says: "It would seem that the unexplained fact that a partnership security has been received from one of the partners in discharge of a separate claim against himself, is a badge of fraud or of such palpable negligence as amounts to fraud, which it is incumbent on the party who so took the security to remove, by showing either that the party from whom he received it acted under the authority of the rest, or that he had reason to believe so." I think, therefore, the ruling of my Lord was correct, and it would be unsettling the law which has been established for many years to hold otherwise. KEATING, J. and ERLE, Č. J. concurred.

Saturday, Nov. 15.

Re SARAN PRICE.

Rule refused.

ERLE, C. J.-They are not living apart by mutual consent. We cannot take away the husband's right without hearing him. Is there not a summary remedy before a magistrate? Any way, at present the matter in the affidavit is not sufficient. Rule refused.

C. Foster now showed cause against the rule.-In the first place, the rule has been improperly served; for Thompson, being a convicted felon, is civiliter mortuus, and service of the rule nugatory and ef no effect. [ERLE, C. J.-That objection is cured by your appearance for him. There is an uniform rule of the common law courts that an attorney convicted of felony shall be struck off their rolls.] I am not instructed by the prisoner, who is civilly dead; but by his friends. It is admitted there is no case in the books

In this case a rule had been obtained on a former day, by Garth, to strike George Thompson, one of the attorneys of this court, off the rolls, he having been Married woman-Conveyance of property without convicted of embezzlement, and now undergoing his consent of husband-Fines and Recoveries Act-sentence of seven years' penal servitude at Portland. 3 & 4 Will. 4, c. 74 and 91. Where a married woman had left her husband owing to his violence and brutality, the court refused to make an order under sect. 91 of stat. 3 & 4 Will. 4, c. 74, authorising her to convey property without the concurrence of her husband, holding that it had no power to do so, as the parties were not living apart by mutual consent within the meaning of the statute; neither had it jurisdiction to do so under the words "other causes whatsoever" in the 91st section. Lopes applied herein, on behalf of Sarah Price, a like the present. Here the attorney has been served married woman, for a rule absolute, in the first in- with a rule, but has no opportunity of appearing stance, authorising her to convey property which has in person, or by counsel; so far as he is himself concome to her without the consent of her husband. It cerned, by the common law he has the right of elecappeared by the affidavit that the parties were mar- tion to appear personally or by counsel. [ERLE, C.J. ried in 1853, and lived together till 1861, when,We will not object to your appearing for him.] owing to her husband's violence and brutality, he The man being civiliter mortuus this court can take having even threatened her life, she had been com- no proceedings in reference to him. [ERLE, C.J.pelled to leave him and take refuge with her brother, We are against you on that point.] The next point with whom she is now residing. The husband had is, that this rule has been moved too late. The man been applied to to join in the conveyance, but had de- was convicted in July 1861, and this rule only now clined to do so. He does not contribute to the support moved for. Upon this point he cited Garry v. Wilks, of his wife or children. [ERLE, C. J.-Under which 2 Dowl. 649. In that case an attorney was charged category in the statute does your case come? The court with oppression towards his client, but the applicahas jurisdiction in these cases where the husband is tion was not made to the court against him till lunatic, or incapable of executing a deed, or if his after the interval of three terms, and no attempt residence be not known, or he be in prison, or when was made to explain the delay; the court therefore he shall be living apart from his wife, either by mu- held that the application was too late. The only tual consent or by sentence of divorce, or in conse-other ground on which I can press the court is, quence of his being transported. You state that she is living apart from her husband, but that seems to be from choice; it is very different from his having de

that to strike the man off the rolls would effectually prevent his retrieving his position in the world. He is a very young man. Although himself upon the

C. B] rolls, he has conducted a business for another, under circumstances which placed him in temptation, and he had, unfortunately, launched into expensive habits, which had led him to commit the crime for which he was sentenced. Jointly with others, he had petitioned to be allowed to go out and serve the remainder of his punishment in Western Australia, where he hoped, by good conduct, to retrieve his character, and to be admitted to practise there as an attorney, which he could not do if struck off the rolls in this country. Garth was not heard in support of the rule. ERLE, C. J.-As to the objection that the application was made too late, the court is of opinion that under the circumstances it is not made too late. It cannot yield to this application. No doubt the authorities in Western Australia at their discretion may allow criminals (who are undergoing or have undergone the punishment intended to produce the salutary effect of deterring others from crime) the opportunity of reinstating themselves in the position they have forfeited, and they are the parties to whom application should be made. Rule absolute.

Ex parte JAY. Re NYMANN v. BRAY AND WARD-NEWPORT v. SPIVEY.

At the time of the alleged offence the said booth was on a private piece of ground which had been rented by one Abraham Fox, for the purpose of holding thereon a pleasure fair, not legal or licensed in any way.

The booth had painted on it the words "Olympic Theatre," and consisted of two caravans or waggons, which were drawn from place to place by horses, and when the two caravans or waggons were joined together and covered with canvas, supported by poles resting on the ground, they formed a temporary booth with a stage thereon, and capable of holding about 300 persons. The said caravans or waggons rested on wheels, and could be moved away, with the poles, canvas, &c. in an hour or two without any difficulty, and it was the custom of the proprietor of the caravans or waggons to move them about frequently from place to place for the purpose of converting them into a booth.

[Ex.

play in the said booth, and that the said booth was | sect. 2 of that Act. The decision there was, that a not a patent theatre or licensed as a theatre. booth used as a theatre was not 66 a house or other place of public resort for the public performance of stage plays within the meaning of the 2nd section of the 6 & 7 Vict. c. 68, nor was it found there that there had been any acting for hire. By the 11th section, under which the present complaint was laid, "every person who for hire shall act or present, or cause, &c., to be acted or presented, any part in any stage play, in any place not being a patent theatre, or duly licensed as a theatre," is liable to the penalty. The conviction therefore was proper. [BRAMWELL, B.-You read that section as if it had said "it shall not be lawful to act, or present, &c., for hire in any place otherwise than in a patent theatre."] Just so; with the exception contained in the interpretation clause, sect. 23, of a theatrical representation in a booth allowed by the justices in a lawful fair. But here a stage play was acted in a place, being a booth, such booth not being licensed by the justices for a fair. [BRAMWELL, B.-All places must come under one of two classes, those which are and those which are not within the licence. If the app. acted in a licensed place, he is safe; if in an unlicensed place, he comes within the penalty. If he says it was in no place at all, he will have to make out a curious problem in physics.] There is another case, Fredericks v. Howie (6 L. T. Rep. N. S. 544) in this court, in which this same person (Fredericks) was concerned, but that merely decided that a travelling theatre was not a house or other tenement" within sect. 46 of the Metropolitan Police Act, 2 & 3 Vict. c. 47, and it is therefore not in point here. Poland, contra, for the app.

It was contended, on behalf of the app., that he had committed no offence, because the said booth was not a place" within the meaning of the 6 & 7 Vict. c. 68, s. 11; that the 11th section must be read in conjunction with sect. 2 of the said Act, and that as it was not an offence under sect. 2 to keep such booth for the public performance of stage plays without a licence (Davys v. Douglas, 28 L. J. 193, M. C.), it was not an offence to permit a stage play to be acted therein, and that "place" in sect. 11 means such a "house or place of public resort" as requires a licence under sect. 2. I was of opinion that the said booth was “ place" within the meaning of sect. 11, and therefore convicted the app. of the offence charged in the information, and adjudged him to forfeit and pay the sum of 31. with 2s. costs. The ground of my decision was, that the word "place" in sect. 11 is used generally without any such restriction as was contended for on the part of the app.; that the only exception was that contained in sect. 23 of the Act, namely, that of a theatrical representation or any booth or show, which by the justices of the peace or other persons having authority in that behalf shall be allowed in any lawful fair," which this was not.

The question of law submitted is, whether or not the said booth before described is a "place" within the meaning of 6 & 7 Vict. c. 68, s. 11.

66

The app.'s points were: That the booth described in the case is not a "place" within the meaning of 6 & 7 Vict. c. 68, s. 11. That the word "place" in that section means the same as "house or other places of public resort for the public performance of stage plays" in sect. 2, and which require a licence. That the said booth is not within sect. 2, and does not require to be licensed, although kept for the public performance of stage plays. That the conviction is contrary to law, and ought to be quashed.

Unless the place in which the representation takes place be a place requiring a licence, no offence has been committed. The words "house or other place," in sect. 2, mean, and must be taken to mean,

If the court shall answer this question in the affir-"house or other place in the nature of a house :" mative, the said conviction to be affirmed; if in the negative, the conviction to be quashed.

G. P. ELLIOTT (Lambeth Police Court). The Court having decided that, in conformity with the rule, the party who supported the decision below should begin,

Field, for the resp., who supported the decision of the magistrate, began.

Resp.'s points: The resp. will contend that the app. was properly convicted under the 11th section of the 6 & 7 Vict. c. 68, and that the booth in question was a "place" within the meaning of that section.

This conviction is quite right. The question turns on the construction of the 11th section of 6 & 7 Vict. c. 68 ("An Act for regulating theatres "), which enacts, "that any person who, for hire, shall act or present, or cause, permit, or suffer to be acted or presented, any part in any stage play in any place not being a patent theatre, or duly licensed as a theatre, shall forfeit such sum as shall be awarded by the court in which or the justices by whom he shall be convicted, not exceeding 101. for every day on which he shall so offend." The title of the Act shows the primary object of it, and the preamble is to the same effect. The app. relies on Davys v. Douglas, 4 H. & N. 180, but that case is clearly distinguishable, and was not decided upon sect. 11, but upon

(see Davys v. Douglas, 4 H. & N. 180.) It is true that in sect. 11 the words "house or other place" are not specifically mentioned, but merely the word "place," which, it is contended, must mean the same there as it does in sect. 2, viz." a place in the nature of a house," or a place kept for the performance of stage plays, and which requires a licence; for, if it be intended to bring any place whatsoever under sect. 11, this absurdity would follow, that a private individual hiring a person to act in his drawing-room for the amusement of his friends, would be liable to a penalty. [BRAMWELL, B.-Does not the Act mean, in sect. 11, that the penalty is to be incurred where the spectator pays for admission? The words "present, or cause to be presented," would seem to show that that was so.] The object of the Act was this: there may be a difficulty in finding the responsible manager; to prevent performances in any such places, a penalty was imposed on any one playing there for hire. Such a booth as this has been held in Davys v. Douglas (ubi sup.) not to be "a house or other place" under sect. 2, and it is submitted that such a booth was not contemplated by sect. 11. The booth in Davys v. Douglas was not in a lawful fair, and so sect. 23 does not help the resp. [BRAMWELL, B.-In Davys v. Douglas, the court said, keeping it for such a purpose was not a substantive offence; he might keep it with

|

[Ex.

out incurring the penalty.] There the actor playing BRAMWELL, B.-I am also of the same opinion, and for hire in a place which may be lawfully "kept," is think Mr. Elliott's decision was quite right. The to be subject to a penalty, while the keeper of the words of the 11th section are express. [The learned establishment (the greater offender) is to get off scot- Baron read the section.] The facts in the case show free. Suppose a gentleman, having a large room, lends that the app. did act for hire, or caused, permitted, or is for a charitable purpose, and a play is acted there, suffered to be acted or presented, a part in a stage play and people pay to come in, that so far is a public place; in this booth which has been described, which was not bat can it be said to come under the penalty? Act- a patent theatre, or duly licensed as a theatre. The ing in an unlicensed place which requires no licence is question then is, has he done it in any place?" If he no offence; but otherwise, if in a place which does has not done it in a place, where has he done it? It require a licence. The word "place means the was contended by Mr. Poland, that to give a proper same thing all through the Act; it means "the said meaning to that part of the 11th section, you should place." [BRAMWELL, B.-Your construction would read it as if the words "house or other place in the necessitate the interpolation in sect. 11 of the words nature of a house" were inserted, and then, he said, "house or other place in the nature of a house." But it would be very intelligible, and consistent with the are not the words of the Act as they stand more 2nd section and other parts of the Act; but words reasonable? By sect. 2 it is one offence to keep never should be introduced into Acts of Parliament an unlicensed place, &c., and by sect. 11 it is unless to give a meaning to or explain terms used another offence to act in an unlicensed place.] that are repugnant, inconsistent, or unintelligible. The word "place" in the 11th section must mean the But here no such inconsistency does exist, nor is same as "place" in sect. 2, viz. a place kept for the there any necessity to imagine words as inserted that public performance of stage plays, and which requires are not there. The Act by sect. 2 says, it shall a licence. Davys v. Douglas decided that the ma- not be lawful for any person to have or keep any house nager of a booth of this description might "keep" it of public resort for the public performance of stage without a licence, and this absurdity would follow, plays without authority, &c. If the Act stopped there that an actor might be convicted for acting for the clear object and intention of the Act would be frushire in a place which might be lawfully kept for per-trated. But it does not stop there; it proceeds to enact formances, thus punishing the lesser criminal and what is to be done in certain other cases, for which letting off the greater. The Act of Parliament did penalties are imposed: if this were not so, you might not contemplate the licensing of booths, because it have strolling players going round the country, playing requires twenty-one days' notice to be given to the for instance in a barn, or some such place, which justices before they could grant a licence in each dis- they would say they did not keep, and were not trict into which the booth should be moved; and if a liable, therefore, to any penalty under the Act. It booth were intended every change of jurisdiction would appears to me the facts stated in the case not only necessitate a change of licence. Unless the construction bring the app. within the words of sect. 11 of the contended for by the app. be correct, it would be an Act, but if they did not it would defeat the object offence for Mr. C. Kean to act for hire before her of the Legislature, and the intention of those who Majesty at Windsor, or for au actor to perform in a framed the Act of Parliament. By sect. 11 all places private drawing-room, or for Mr. C. Dickens to act once are places" within the meaning of that section, only for a charity in any place to which persons were except those duly licensed by the Act, or excepted by admitted by the purchase of tickets. It cannot mean it; and this is confirmed by sect. 23, which shows that, any "place" whatever-it only contemplates such a but for that exception in sect. 23, all booths at all place as is required by law to be licensed; that is to fairs, feasts, or customary meetings of the like kind say, such as is within the meaning of sect. 2, which would be similarly liable, and therefore those were exsays it shall not be lawful for any person to have or keep cepted by the proviso in sect. 23. Mr. Poland said, if any house or other place of public resort in Great Britain, the argument for the resp. prevailed, any gentleman for the public performance of stage plays, without who engages an actor to perform in his own house for authority by virtue of letters patent from her Majesty, hire may be liable; but even if so, the consequence would &c., &c. Sect. 5 also refers to the justices of the be less alarming than in the instance I have mentioned. division within which the property proposed to be I do not think Mr. Poland's construction of sect. 11 is licensed shall be situate; and sect. 23, the interpreta- correct. The section is clumsily drawn; it says, "every tion clause, also favours the construction contended for; person who for hire shall act, or present, or cause, permit, it says that the word "stage play" in that Act shall or suffer to be acted or presented, any part in any stage be taken to include every tragedy, comedy, farce, play in any place," &c.; and I am inclined to think opera, &c., provided that nothing therein contained that the acting in any place must be for hire by the shall be construed to apply to any theatrical representa- spectator. It appears to me that the magistrate was tion in any booth or show, which by the justices of the correct in his decision in this case, and that our judgpeace or other persons having authority in that behalf ment should be in favour of the resp. shall be allowed in any lawful fair, feast, or customary meeting of the like kind," which shows, such a booth as this was not contemplated to be licensed as a theatre. Field in reply (stopped).

POLLOCK, C.B.-We are all of opinion that the decision of the magistrate in this case must be supported. Looking at the 11th section of the 6 & 7 Vict. c. 68, the facts of the case bring it within the express words of that section, which provides "that every person who for hire shall act, or present, or cause, permit, or suffer to be acted or presented, any part in any stage play, in any place not being a patent theatre or duly licensed as a theatre, shall forfeit such sum as shall be awarded by the justice before whom he shall be convicted." It would be a waste of time to go into the matter with reference to the other sections that have been referred to, I think the conviction should be affirmed,

CHANNELL, B.-I agree in thinking that this conviction ought to be affirmed. It has been contended on behalf of the app. that the facts of the case do not bring it within the operation of the 11th section of this Act of Parliament. I certainly think they do, and it seems to me that they are not brought within the proviso or exception of the 23rd section. This section may, in fact, be left out of consideration altogether for the purpose of the decision of this case, though it may be useful on other occasions in order to throw light on sect. 2 and other portions of the Act. I do not agree that the term any place," in sect. 11, should be read as has been contended for by Mr. Poland; but I think that the proper construction has been already given to it by the court, and I agree in thinking that our judgment should be for the resp., and that this conviction should be affirmed.

Conviction affirmed,