them), contra formam statuti, whereby he had forfeited, for his said offence, a penalty of 50l. The second count varied from the first only by substituting, "travelling on foot," for "travelling with a horse." The third count was similar to the two former, with the exception of substituting "travelling in England," for the allegations of travelling with a horse and on foot, as stated in those counts. The fourth, described the defendant as being a hawker and pedlar, and not being a householder at Ashby-de-la-Zouch, and that place not being his usual place of abode; and charged the sale by auction, through the agency of Benjamin Cheatle, as in the three first counts. And the fifth, sixth, seventh, and eighth counts differed from the four first, only by stating that the defendant did himself sell by auction, &c., instead of selling by an agent. Plea, the general issue. To support his information,,it was proved that the defendant, who resided at Leicester, and there carried on the business of a cabinet maker, and kept an open shop for the sale of cabinet, and such other goods as cabinet-makers usually deal in, on the 22d of May, 1826, caused to be removed in a waggon, from that place to Ashby-de-la-Zouch, a large quantity of cabinet and hardware goods; that he accompanied the waggon on foot part of the way, and then went by the mail to Ashby-de-la-Zouch, where he employed one Benjamin Cheatle, an auctioneer of that place, who, on the 24th of the same month, proceeded to sell the goods by auction, the defendant attending the sale room, and interfering in the sale. It was admitted by the counsel for the defendant, that he was not a housekeeper at Ashby-de-la-Zouch, and that that place was not an usual place of his abode; but it was contended, that the facts did not support the information, the defendant not being a hawker within the meaning of the section of 1826. ATT.-GEN. v. WOOLHOUSE. 1826. ATT.-GEN. v. WOOLHOUSE. the act of parliament upon which the information was founded. The learned Judge, however, was of a different opinion; and under his direction the Jury found a general verdict for the crown for one penalty. In Easter term, Denman, C. S., obtained a rule a to shew cause why the verdict should not be entered for the defendant, there being no proof that he was a hawker and pedlar, or a person travelling from town to town; or why the judgment should not be arrested, as no count of the information contained any allegation that the defendant conducted the sale by opening a room or shop, and exposing to sale any goods, &c. by retail, according to the words of the statute (a). Clarke and Phillips, S. M., now shewed cause.-The sixth (b) section of the act of parliament, which is explanatory of the seventh (c), upon which this informa (a) The terms of the rule were, "why the verdict should not be entered for the defendant, for want of proof that he was a hawker, or why the judgment should not be arrested for want of statement that the sale was by retail." (b) By which is imposed upon every hawker, pedlar, and petty chapman, and every other trading person and persons, going from town to town, or to other men's houses, and travelling either on foot or with horse, horses, or otherwise, in England, Wales, or the town of Berwick upon Tweed, carrying to sell, or exposing to sale, any goods, wares, or merchandise, a duty of four pounds for each year; and upon every person so travelling with a horse, ass, or mule, or other beast bearing or drawing burthen, the sum of four pounds yearly for each beast he or she shall so travel with, over and above the said mentioned duty of four pounds. (c) Which enacts, that it shall not be lawful for any hawker, pedlar, petty chapman, or any other trading person or persons going from town to town, or to other men's houses, and travelling either on foot or with horse or horses, either by opening a room or shop, and exposing to sale any goods, wares, or merchandise by retail, in any town, parish, or place, such person not being a householder there, or the same not being an usual place of his or her abode, or by any other means or device, to vend or sell either by himself or herself, or by any auctioneer, whether licensed or not, broker, appraiser, 1826. บ. WOOLHOUSE. tion is framed, imposes a duty on a certain description of persons; and the seventh section inflicts a penalty ATT.-GEN. upon them, if either by opening a room or shop and exposing their goods to sale by retail, or by any other means they sell their goods by auction, &c. Now, the seventh section comprehends two classes of persons, hawkers, and persons travelling from town to town. It is not necessary to consider whether the defendant was a hawker; for the first count, which states him to be of the latter description, viz. a person travelling from town to town, is supported by the evidence; and, in an information, the verdict may be shifted to any count that is sustained by the evidence. The fact of the defendant having travelled from the place of his abode to one town only, is no objection to that count; for, in the case of the Attorney General v. Tongue (a), the pleadings and evidence in which were very similar to the present, Mr. Baron Graham said, "I consider that there was sufficient proof of the defendant's trading as a hawker and pedlar; I cannot, myself, entertain any doubt that the defendant was trading in the character of a hawker, pedlar, or petty chapman, and that he comes within the description of persons prohibited from so selling goods by this act of parliament. The objection taken to the proof, as applied to the first count, is, that there was no evidence of the defendant being a person going from town to town and selling goods; I am, how agent, servant, or other person, on his or her behalf, any goods, wares, or merchandise whatsoever, by outcry, knocking down of hammer, candle, lot, parcel, or any other mode of sale at auction, or whereby the best or highest bidder is or shall be deemed to be the purchaser; and that every person and persons so vending or selling, contrary to such prohibition as last aforesaid, shall forfeit and pay for every offence the sum of fifty pounds, to be recovered and applied as thereinafter mentioned. (a) MSS. 3 May, 1823. 2 Burn's Just. 785. 1826. ATT-GEN. V. WOOLHOUSE. ever, clearly of opinion, that he is proved to have been such a person, and that it was sufficient for that purpose to shew that he left Birmingham, the place of his residence and business, to go to Shrewsbury, in order to sell his goods." The second objection, which is equally as untenable as the former, arises from the particular wording of the section which creates the offence. In Allen v. Sparkall (a), the plaintiff's counsel contended, that this section created two offences: the first, opening a room and exposing to sale by retail, &c., and the other, vending by outcry, &c., but the present Chief Justice of the King's Bench was of opinion that the clause was prohibitory, and that the prohibition was confined to persons of certain descriptions; a hawker being one description of person, and a person who sells by retail being another, but that neither might sell by auction. And had it been necessary, in that case, to have gone so far with the words of the clause, he might have added, a trading person going from town to town, or to other men's houses, and travelling either on foot or with horse or horses, to his enumeration of those to whom the prohibition applied. The words, in fact, were intended by the Legislature to provide against the possibility of a person taking a shop for a short time, and selling at the same time by retail and by auction. The penalty, however, is not confined to that mode alone of conducting the sale; for if the sale be conducted by any other means or device, the penalty is incurred; and here it was conducted by sale at auction, through the agency of a third person (b). Denman, C. S., contrà.-The penalties in the act are confined to certain specified individuals; and unless the defendant comes within one of those descriptions, (b) See 25 Geo. 3, c. 78, s. 2. (a) 1 B. & A. 100. no offence has been committed. The act was meant to ALEXANDER, L. C. B.-The only question, which appears really to be in dispute at the bar, is, whether the single act of going from the place of the defendant's residence to Ashby-de-la-Zouch, is sufficient to constitute the offence; which question turns entirely upon the construction of the statute. It is not necessary (b) 4 B. & A. 517. (a) 4 B. & A. 510. 1826. ATT.-GEN. บ. WOOLHOUSE. |