Ex.]

and that appears to have been agreed upon by the parties.

The

WILLES, J.-I am of the same opinion. contract was made on the assumption that Green had a licence under which the business of the house was being lawfully carried on, and it turned out that he had no licence, but that he had obtained one for his son, who had gone away, and had left no authority to transfer it. The vendor here had no licence, and under the Licensing Act a licence must mean a licence for carrying on the business by or on behalf of the licensee. Here there was

no

carrying on of the business on behalf of the licensee, and it was pointed out in the case of Day v. Luhke, that there is a difference in the proceedings under sect. 11, and those under sect. 14, because under sect. 14 it is necessary to go into an inquiry if the person who has gone away, and who is no party to the proceedings, should be called upon to give his consent; and it is not at all impossible that the magistrate might consider that the fact that the business was carried on not for the licensee, but for his father, was a circumstance which required inquiring into. I quite agree with what has been said by my Lord.

BYLES, J.-I am of the same opinion, and I think that our judgment should be for the purchaser. Looking at sects. 2, 3, and of the Act, and the schedule, it appears that a licence can only be granted to a person keeping, or intending to keep, the house, otherwise the magistrates would not be able to know how many houses a person kept and could exercise supervision over. The time for the completion of the purchase was the 5th Feb.; what then was the position of the vendor on that day? Not only could he not assign the licence, but, as far as we can see, there was no licence to a person keeping, or intending to keep, the house, and assuming that he had a reasonable time to complete the contract, though it is true that his son got a new licence on the 12th Feb., still he is now, and was then, without the means of completing his contract. Judgment for the purchaser.

Attorney for the vendor, H. Child.
Attorney for the purchaser, G. H. K. Fisher.

COURT OF EXCHEQUER. Reported by H. LEIGH and E. LUMLEY, Esqrs., Barristersat-Law.

Tuesday, June 9, 1868.

MCFADZEN V. THE MAYOR, &c., OF LIVERPOOL. Practice-Interrogatories under sect. 51 of C. L. P. A. 1854-Action againt a corporation for malicious arrest and false imprisonment and wrongful dismissal-Application to exhibit interrogatories to town clerk-Bona fides of proposed questions—Discretion of court. In an action against a corporation for malicious arrest and false imprisonment, and a wrongful dismissal of the plaintiff, the plaintiff proposed to administer interrogatories to the town clerk of the corporation under sect. 51 of the C. L. P. A. 1854, asking him (1) whether he had caused the plaintiff to be arrested on a charge of felony, or had given instructions to anyone, and who, so to arrest the plaintiff, or had taken any part, or was concerned in such arrest? (2) If so, by what authority he had acted in so doing? (3) Whether as town clerk or otherwise he was informed of the arrest of the plaintiff, and notified the same to the town council of the borough, and were there any resolutions of the council relating to the said arrest? (4) Whether he had the management of, or took any and what part, or was concerned in the

[Ex.

prosecution of the plaintiff before the magistrates or at the borough sessions, and, if so, on whose behalf? (5) Whether the arrest and prosecution of the plaintiff was caused, procured, instituted, or carried on by the authority or direction, or with the sanction of the defendants, or of the town council, or of the town clerk himself? (6) Were there any resolutions or minutes relating to the plaintiff's appointment or to his dismissal from his office? (7) Has the town clerk in his, or has the corporation in its, possession, &c., any documents, letters, &c., in any way relating to the matters interrogated upon, and does he object to produce them? Held by Kelly, C. B., Bramwell, and Channell, BB.

(dissentiente Martin, B.), that the interrogatories appearing to the court to be material to the plaintiff's case, and to be put bonâ fide, should be allowed (Bickford v. D'Arcy, 14 L. T. Rep. N. S. 269; L. Rep. 1 Ex. 354; 35 L. J. 202, Ex.) ap proved.

This was an action brought by the plaintiff to recover compensation in damages from the defendants the mayor and corporation of the borough of Liverpool for a malicious arrest and false imprisonment, and for a malicious prosecution of the plaintiff on a charge of felony, and also for a wrongful dismissal from service; and to recover 301. the balance of salary alleged to be due to the plaintiff. The first count of the declaration was for the malicious arrest and causing the plaintiff to be given in custody to a policeman and taken police station, and there imprisoned &c., for a to a considerable time, &c., and for charging the plaintiff before justices of the peace, with feloniously stealing money of the defendants, and procuring his committal to prison, and causing him again to be brought before justices of the peace and to be committed for trial, and to prison, where he was detained for a long time until he was discharged on bail. The second count was for falsely and maliciously and without reasonable and probable cause causing a bill of indictment to be preferred at the quarter sessions on such false charges and maliciously prosecuting the said indictment against the plaintiff on such false charges and such proceedings were thereupon had in the said court, that the plaintiff in due course of law was acquitted.

The facts were that the plaintiff had been in the service of the corporation of Liverpool since the year 1830, and since the year 1833 as superintendent of scavengers at a salary of 130% per annum. He was arrested without warrant at his residence, and taken before justices on the charge above mentioned, and committed for trial before the recorder of Liverpool at the borough sessions, where he was eventually acquitted. Having brought the present action against the corporation for the wrongs thus Vict. c. 125, s. 51 (the C. L. P. A. 1854), to administer inflicted on him, he now sought, under the 17 & 18 interrogatories to the town clerk of the defendants. The declaration had been delivered, but the defendants had not yet pleaded. Application had been made to Byles, J. at chambers for permission to exhibit the interrogatories, but the learned judge refused to make an order, but without prejudice to the plaintiff's right to apply to the court.

The interrogatories proposed to be administered were nine in number, and were in substance as follows:

1. Were you town clerk of the borough of Liver pool in and during the months of June, July, and August in the year 1867?

2. Did you in or about the month of June 1867 cause the plaintiff to be arrested on a charge of feloniously stealing moneys of the defendants, or on any other and what charge; or did you give instructions or directions to any one (and whom)

Ex.]

to arrest the plaintiff, or cause and procure the plaintiff to be arrested on any such and what charge; or did you in any way, and how, take part in, or were you in any manner, and how, concerned in the arresting of the plaintiff, or in causing or procuring the plaintiff to be arrested on any such, and what, charge?

3. If you did cause the plaintiff to be arrested, or did give instructions or directions to anyone to arrest him on any such charge, or took part or were concerned in any manner in arresting the plaintiff, or causing and procuring him to be arrested, state by what authority you did so cause arrest, or give such instructions, &c.

4. Were you at any time, and when, as town clerk of the said borough of Liverpool, or otherwise, informed of the arrest of the plaintiff, and did you at any time or times, and when, notify, or cause to be notified, the fact of such arrest to the town council of the said borough, or to any and what committee thereof, and are there any resolution or resolutions of the said council, or of any and what committee thereof, and, if so, of what date, &c., relating to the said arrest?

5. Had you the management of, or did you take any, and what part in, or were you in any manner concerned in the prosecution, in the months of June and July 1867, of the plaintiff before the magistrates, or at the Liverpool Borough Sessions, on a charge of feloniously stealing moneys of the defendants, or any other, and what, similar charge; and if so state on whose behalf you had the management of, or took part in, or were concerned in such prose

cution?

6. Were you at any time, and when, as town clerk, informed of the prosecution of the plaintiff, and did you at any time or times, and when, notify, or cause to be notified, the fact of such prosecution to the town council, &c.? (as in interrogatory 4.)

[Ex.

R. G. Williams accordingly, for the plaintiff, now moved for a rule calling on the town clerk of the borough of Liverpool to answer the above interrogatories. The ground of the learned judge's refusal to make an order was that the answers might render the party liable to a criminal prosecution, and, secondly, that it might render the town clerk individually responsible. The interrogatories are put with entire bona fides, and the plaintiff only seeks thereby to make the defendants (the corporation) responsible. [MARTIN, B.-I do not think a man ought to be put to answer in a case where declining to do so is self-crimination.] The case of Bickford v. D'Arcy and another, in this court, 14 L. T. Rep. N. S. 269; L. Rep. 1 Ex. 354; 35 L. J. 202, Ex., and the cases there cited, are in favour of the plaintiff's in that case. I recollect a case against the Bridgapplication. [MARTIN, B.-I adhere to the decision water Trustees, in which the same difficulty arose, and Mr. Crompton there agreed to admit their liability. Probably he will do something of the kind in the present case.] The plaintiff will be satisfied with such an admission.

Crompton, for the defendants, contra, showed cause in the first instance against the rule, and submitted that Byles, J. was right in refusing to make an order. The only interrogatory that the plaintiff is entitled to is what resolution the corporation passed authorising his arrest? He is himself a burgess, and as such, it is apprehended, has a right to inspect the minute books containing refusing was not that the town clerk might crimientries of resolutions. Byles, J.'s ground for

8. Is there any resolution or resolutions, minute or minutes, relating to the appointment of the plaintiff as superintendent of scavengers or to his dismissal from such office, and if so of what date or dates?

9. Have you in your, or has the corporation in its, possession, power, or control any and what documents, memoranda, resolutions, minutes, letters, or copies of the same, in any way relating to the matters whereupon you have been interrogated, or in question in this cause? If yea, state whether you object to produce them, and if so state the grounds on which you do so object. By sect. 51 of the 17 & 18 Vict. c. 126 (C. L. P. A. 1854) it is enacted :

That in all cases in any of the Superior Courts, by order of the court or judge, the plaintiff may with the declaration, and the defendant may, with the plea, or either of them, by leave of the court or a judge, may, at any other time, deliver to the opposite party or his attorney (provided such party, if not a body corporate, would be liable to be called and examined as 2 witness upon such matter), interrogatories in writing upon any matter as to which discovery may be sought, and require such party, or in the case of a body corporate any of the officers of such body corporate, within ten days, to answer the questions in writing by affidavit to be sworn and filled in the ordinary way. And sect. 52 enacts that the application for such order shall be made upon an affidavit of the party proposing to interrogate, and his attorney or agent, stating that in their belief the party so proposing to interrogate, whether plaintiff or defendant, will derive material benefit in the cause from the discovery sought, and that there is a good cause of action or defence upon the merits.

sent to strike out the count on the malicious arrest and false imprisonment the defendants would not object to the interrogatories. [R. G. Williams.The plaintiff is not prepared to give up the count.] If the town clerk had no authority his answer to these interrogatories would render him liable and that was Byles, J.'s reason for refusing the order. [KELLY, C.B.-No, he may object to answer. The answer would be, "I did so and so, and so and so." Then would come the question, "Had you authority for doing so?" and then he might decline to answer. BRAMWELL, B.-I do not think he might decline. MARTIN, B.-I thick it an unfair thing to put a man in a position either to admit a charge, imputing it may be even a crime, or an act of infamous immorality, or else to decline to answer the question.] The object here is to ascertain if the corporation authorised the arrest and imprisonment, and that will appear on the books of the corporation. The information sought by the fourth interrogatory would be privileged communications between the town clerk and the council, and the ninth seeks a discovery of letters and communications of the same character.

KELLY, C. B.—I think that these interrogatories, appearing to be put bonâ fide, and to be material to the plaintiff's case, may be put, and that the rule should be made absolute.

MARTIN, B.-I own that my impression is that Mr. Crompton is right, and that these interrogatories should not be allowed.

BRAMWELL, B.-It appears to me that these interrogatories should be allowed. I admit that in

C. CAS. R.]

the case put by my brother Martin of a question imputing conduct of an infamous or degrading character, the question ought not to be allowed. But in an ordinary case, I think any question may be put, and that the objection to answer is one to be taken by the person interrogated upon his oath, and not by counsel. I cannot think, if the corporation were here, that they would themselves object to state the actual facts, and, if they were in the wrong, that they would not be glad to compensate the plaintiff. If the court sees the question is not per se objectionable, I think it ought to be put.

False pretences-Obtaining money by pretending to carry on a certain business.

The prisoner obtained a sum of money from the prosecutor by pretending that he carried on an extensive business as an auctioneer and house agent, and that he wanted a clerk, and that the money was to be deposited as security for the prosecutor's honesty as such clerk. The jury found that the prisoner was not carrying on any such business at all:

Held, that this was an indictable false pretence.

Case reserved at the Middlesex Sessions for the opinion of the Court for consideration of Crown Cases Reserved.

John Augustus Crab was tried before me at the Middlesex Sessions on the 27th March 1868, for having obtained various sums of money from several persons by false pretences with intent to defraud.

The pretences relied upon were, that he was, at the time he obtained the moneys, carrying on an extensive business as a surveyor and house agent, and that he had employment for several clerks to collect rents and assist in the conduct of his said business.

By these pretences he induced individuals to deposit sums of money with him as a guarantee of their honesty, and it was proved that he was not carrying on an extensive or any business as a surveyor or house agent, and that he had not any employment for several or any clerks to collect rents or to assist in the conduct of any business whatever.

The prisoner's counsel declined to address the jury on the facts, and relied on the objection that the above pretences were not, in point of law, sufficient to sustain a criminal charge.

The prisoner was found guilty, and sentence was deferred.

He is now in the House of Correction, in and for

[C. CAS. R. the county of Middlesex, awaiting the decision of this honourable court upon the above objection. The question I have to submit to this honourable court is, whether the pretences above set forth are or are not sufficient, in point of law, to sustain the charge upon which the prisoner was convicted.

Wм. H. BODKIN, Assistant Judge. April 25.- Before Kelly, C. B., Keating, J., Pigott, B., M. Smith, J., and Lush, J.

The court desired the case to be re-stated. In obedience to the order of the court, the following additional statement of facts was added to the case:

James Hawkins was induced by an advertisement in the Times to see the prisoner, who was found in the occupation of a room in Margaret-street, Cavendish-square, having the appearance of an agency office.

The prisoner said that he was the advertiser, and wanted several clerks to assist in carrying on his business as a surveyor and house agent, that his business was of great extent, and that as the clerks he wished to engage would be entrusted to collect rents to a large amount, he should require the sum of 251. to be deposited with him by each as a security for his honesty.

In consequence of these pretences, James Hawkins was induced to hand 251. to the prisoner.

James Carmichael was induced by the same pretences to give the prisoner 10, and several other witnesses proved that they were about to deposit money with the prisoner under similar circumstances, but that they were prevented doing so by the interference of the police.

It was proved to the satisfaction of the jury that the prisoner was not carrying on the business of a surveyor or house agent; that he had not employment in such trades for any clerks, and that the prisoner's office was opened for the sole purpose of defrauding persons invited to it by the advertisement published by the prisoner.

The prisoner's counsel contended that the pretences used by the prisoner were only exaggerated representations of the extent of his business; but as the jury found that he was not carrying on any business whatever, I thought the pretences were such as would support the charge against him. W. H. BODKIN, Assistant Judge.

April 27, 1868.

May 2.-Montagu Williams, for the prisoner, applied to the court to send back the case for the statement of some additional facts that were proved as to the prisoner having done business at the office, and having had applications for servants' situations. The prisoner had an office and books, and he representations as to the extent of the business were only exaggera tions. It was a question of degree, and was not the subject of a criminal charge.

Besley for the prosecution. The business of a servants' office is not the business of a surveyor and house agent, which he represented himself to be carrying on.

KELLY, C. B.-As the jury have found that the prisoner was not carrying on any business whatever, and there was the positive allegation of a fact that the prisoner obtained 251. from the prosecutor by falsely pretending that he was carrying on an extensive business as a surveyor and house agent, and that he had employment for several clerks to collect rents and assist in the conduct of his said business, the objection cannot be sustained. Here the false pretence was of an existing fact, which was proved to be untrue, and by means of which the prosecutor was induced to part with his money.

.

Saturday, May 2, 1868.

(Before KELLY, C.B., KEATING, J., PIGOTT, B., M. SMITH, J., and HANNEN, J.)

REG. v. ROGERS AND OTHERS. Larceny―Jurisdiction-Transmission of stolen property into another county-Railway-24 & 25 Vict. c. 96, 8. 114.

prisoner Rogers's handwriting, session of the prisoner Byatt. The letter is as follows:

[C. CAS. R.

found in the pos

Liverpool, Jan. 30, 1868.

I send you up the goods this morning they are as follows: £ s. d.

did not come down as you promised. Try and deal this time without so much wrangling. You

DICK.

Held, that the thief was triable in Middlesex, although there was no evidence that he had left Liverpool. Cases reserved at the Middlesex Sessions for the opinion of this court.

John Rogers, Richard Irwin, Alfred Johnson, and Charles Byatt, were tried before me at the sessions for Middlesex on the 3rd March 1868, for stealing and receiving a watch, the property of John Shaw. Byatt pleaded guilty.

Rogers was found guilty of stealing. Irwin and Johnson were found guilty of receiving with a guilty knowledge.

John Rogers resided at Liverpool, and forwarded by railway a box containing the watch in question, and several other stolen watches, to the prisoner Byatt, and the box was delivered in due course to Byatt, in the county of Middlesex.

It was contended that as Rogers was not shown to have left Liverpool, the court had no jurisdiction to try him.

I told the jury that if they believed Rogers to have stolen the watch, his transmission of it into the county by the agency of the railway was sufficient to give the court jurisdiction, although he did not personally convey it.

It was proved that Rogers had advised Byatt of the transmission of the box by a letter found in Byatt's possession.

Irwin and Johnson were proved to have been at Byatt's house on the arrival of the box, and the jury found that they knew of the box and the contents having been forwarded by Rogers, and that they were present on its arrival, aiding and abetting Byatt in the receipt of the watch in question, they well knowing it to have been stolen, but it was not proved that either of them had manual possession of it, all the prisoners, Byatt, Irwin, and Johnson having been taken into custody before the box was opened.

I have to ask this honourable court whether, upon the facts here stated, the conviction of Rogers, Irwin, and Johnson, or either of them, can in point of law be sustained.

Rogers was sentenced to be kept in penal servitude for five years, and Byatt for ten years. Irwin and Johnson were sentenced to be severally imprisoned with hard labour for two years; and the prisoners remain in the House of Correction for the county of Middlesex, in pursuance of the above sentences.

WM. H. BODKIN, Assistant Judge. Middlesex Sessions, March 10, 1868. April 25.-Before Kelly, C. B., Keating, J., Pigott, B., M. Smith, J., and Lush, J.

The court desired the case to be re-stated.

In obedience to the order of the court, the case was amended by adding a copy of the letter in the

and a similar box, empty, with similar address in box was taken by Rogers to the railway office in Rogers's handwriting, was found at Byatt's. That Liverpool, on the 13th Jan., and booked as a parcel for London. Rogers was asked if he wished to pay the carriage, and he did so. The box was then forwarded in the ordinary manner, the box containing the articles named in the letter (and amongt them the stolen watch in question) was sent by railway in the same manner on the 30th Jan. at ten o'clock in the morning, but the railway clerk could not say by whom it was brought to the office.

It was proved that the watch in question was stolen from the owner at Liverpool on the 29th Jan. about seven o'clock in the evening, and when found at Byatt's the bow of the watch had been broken off.

Rogers was the keeper of a beer-shop at Liverpool, and there were found in his house a number of watch-keys, a jeweller's eye-glass, and jewellers' scales and weights. Being asked by the officer what such things were used for, he laughed, and said, "You know as well as I do."

The rest of the evidence applies to the other prisoners. W. H. BODKIN, Assistant Judge.

April 27, 1868.

No counsel was instructed for the prisoners. Collins for the prosecution. The jury having found Rogers guilty of stealing the watch, and he having it in his possession by his agents, the railway company, in the county of Middlesex, the Middlesex Court of Quarter Sessions had jurisdiction to try him for the felony: (24 & 25 Vict. c. 96, s. 114.) The case is like that of Reg. v. Cryer, 7 Cox C. C. 335, where the half of a country bank note having been stolen at some period during its transfer from S. in Wilts, to Bristol; it was afterwards inclosed by the prisoner in a letter addressed to the bankers at S. demanding payment, which letter was posted at Bath. There was no other evidence of any receipt or possession by the prisoner in Wilts: and it was held that the prisoner was rightly tried in Wilts, as the possession either of the post-office servants or the bankers was his possession. As against the other two prisoners, Irwin and Johnson, the verdict is conclusive.

KELLY, C. B.-In this case, as regards the prisoner Rogers, who was convicted of stealing a watch at the Middlesex Court of Quarter Sessions, it appears that the watch was stolen at Liverpool, and forwarded by railway to London to another prisoner, Byatt, who pleaded guilty, for the purpose of sale. The question arises whether the possession of the watch, when it was in the county of Middlesex, in contemplation of law, must be taken to have remained in Rogers, who originally stole it at