Wray v Toke, Clerk, and Another
| Jurisdiction | England & Wales |
| Judgment Date | 09 June 1848 |
| Date | 09 June 1848 |
| Court | Court of the Queen's Bench |
English Reports Citation: 116 E.R. 951
QUEENS BENCH
S. C. 3 New Sess. Cas. 290; 17 L. J. M. C. 183; 12 Jur. 936.
[492] wkay against toke, Clerk, and another. Friday, June 9th, 1848. 1. In a conviction, under stats. 11 G. 4 & 1 W. 4, c. 64, s. 13, and 4 & 5 W. 4, c. 85, awarding penalties against a publican for permitting disorderly conduct in his house, it is not necessary to state that the house was in the division for which (a) With the addition that there was no house of residence belonging to the benefice. (i) The same motion was made in the ensuing term to the Court of Exchequer; but the rule was refused ; In re Bartlett, 3 Exch. 28. 952 WRAY r. TOKE 1ZQ. B. 483. the justices aeted ; the statutory form (sect. 25) not containing such an averment. And, if the statement were necessary, semble, that the fact might be collected from a statement in the conviction that A. B. (the publican), of the parish of Ashford, in Kent, was convicted before us, &c., two justices, &c., acting, &c., in and for the division of Ashford in the said county, for that he did permit, &c., in his house and premises situate in the parish of Ashford in the said county. 2. It need not he averred in such conviction that the penalty was proceeded for within three calendar months next after the committing of the offence. 3. It is sufficient in such conviction (being subsequent to stat. 4 & 5 W. 4, c. 85), and in a warrant founded on it, to allege that the publican, being a seller of beer, &c., by retail, and licensed to sell the same by retail to be drunk and consumed in and upon his premises, under the provisions of the statutes in that case made and provided, permitted, &c., against the tenor of the license granted to him under the provisions of the said statutes, and contrary to the form of the said statutes; without further pointing out the statutes. And the mention of " statutes " (not statute) is correct. 4 & 8, The charge, in such conviction, of permitting "drunkenness and other disorderly conduct," against the tenor of such license, &c., not naming the parties who were permitted to misbehave, nor stating the terms of the license, is not too vague. Nor is the charge double. 6. In such conviction, the words " this being adjudged to be hia second offence against the provisions of the aforesaid statutes," are a sufficient adjudication on that point, under sect. 13 of stat. 11 G. 4 & 1 W. 4, c. 64, without further shewing the nature of the first offence. 7. The justices having, in such conviction, awarded a penalty of 101., one moiety thereof, after deducting costs of conviction, to the use of A., and the other moiety, after deducting the costs as aforesaid, to the use of B.: Held, in an action of trespass for levying the 101., that the penalty, under s. 13, was well imposed, and the adjudication not made bad by the award of costs. 8. Held no objection to the warrant of distress that it ordered the money levied to be paid to the justices, in order that they might dispose of the same as directed by the conviction. [S. C. 3 New Sess. Gas. 290; 17 L. J. M. C. 183; 12 Jur. 936.] Trespass for breaking and entering plaintiffs dwelling house in the parish of Ashford, Kent, and seizing and taking his goods, &c. Plea. Not guilty, by statute. Issue thereon. Ottthe trial, before Parke B., at the Maidstone Summer Assizes, 1847, it appeared that the alleged trespass was the execution of a distress warrant on the plaintiff's goods, to enforce a conviction under the hands and seals of the defendants, two magistrates of the county of Kent. The conviction, written oil paper, was put in, and was as follows. [4Q3] " Kent, to wit. Be it remembered that, on this 5th day of December, A.D. 1846, John Wray, of the parish of Ashford in the county of Kent, was duly convicted before us, the Eeverend Nicolas Toke, clerk, and Harry William Carter Esquire, two of Her Majesty's justices of the peace in and for the said county, acting in Petty Sessions in and for the division of Ashford in the said county, for that he, the said John Wray, being a seller of beer, ale and porter, cyder and perry, by retail, and licensed to sell the same by retail to be drunk and consumed in and upon the dwelling house and premises thereunto belonging of him the said John Wray, hereinafter mentioned, under the provisions of the statutes in that case made and provided, did, on the 28th day of September, A.D. 1846, at the parish of Ashford aforesaid in the said county, unlawfully, wilfully and knowingly permit drunkenness and other disorderly conduct in the house and premises mentioned in such license and situate in the said parish of Ashford in the county of Kent aforesaid, against the tenor of such license granted to the said John Wray under the provisions of the said statutes, and contrary to the form of the said statutes; whereby the said John Wray has forfeited the sum of 101., this being adjudged to be his second offence against the provisions of the aforesaid statutes to permit the general sale of beer and cyder by retail in England, pursuant to the statutes in such case made and provided. And we, the said justices, do hereby award one moiety of the said penalty of 101., after deducting the costs attending this conviction, to the use of George Crouoher, of the parish of Asbforel aforesaid, police constable, the prosecutor herein ; and the other moiety being the remainder of the said penalty, [494] after deducting the costs as aforesaid 1SQ. B.5. WRAY V. TOKB 953 we do hereby award to be paid to the treasurer of the county of Kent aforesaid, within which such offence was committed, to be applied by the said treasurer towards defraying the necessary expenses of the said county, in aid of the county rates of the said county. Given under our hands and seals, the day and year first above written. Harry Wm. Carter " (L. S.). " N. Toke " (L.S.). The distress warrant, directed to a constable, named, of the parish of Ashford in the county of Kent, and to all constables in and for the county, began: " Whereas John Wray, of," &c., " was, on," &c., " duly convicted before us," &c. (the same justices), "two of the; justices," &c. "assigned," &c., "and acting in Petty Sessions in and for the division of Ashford in the said county, for that," &c. (reciting the conviction as far as " contrary to the form of the said statutes "), " and hath been adjudged by the said justices to forfeit and pay for his said offence the sum of 101., which he hath refuged," &c. (to pay within seven days): " These are therefore to authorise and command you forthwith to make distress of the goods," &c. " of the said J. W.; and, if within five days," &c. " the said sum shall not be paid, together with the reasonable costs," &c. (of distress), " that then you do sell the said goods," &c., " and out of the money arising by such sale that you do pay the said sum of 101. to us the undersigned justices, in order that we may dispose of the same as the said conviction directs, rendering the overplus, if any, to the said J. Wray," charges of distress being first deducted : the officer to certify, if no distress could be found. " Given," &c. (Names and seals of the same justices.) Several objections were taken to the conviction and [495] warrant. The learned Judge overruled them, but reserved leave to move as after mentioned; and a verdict was given for the defendants. In Michaelmas term, 1847, a rule was obtained, calling upon the dafendants to shew cause why a...
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