that a person should, to come within the provisions of the act, sustain generally the character of a hawker; for it is sufficient if he be a trading person, going from town to town. Now, the point taken in argument for the defendant, upon the words of the statute, is, that the penalty does not attach upon a single instance, but only where a person is in the constant habit of travelling from town town. That would, in my opinion, be a most extravagant and violent construction: and indeed, were it necessary that the defendant should travel from town to town, exclusive of his usual place of residence, the enactment would be nugatory; for he might, as was observed by my brother Hullock, in the case of the Attorney-General v. Tongue, provided he returned to his place of residence after he had sold his goods, and before he carried other goods to another town to sell there, paralyze the provisions of the act, and carry on business to any extent with impunity. The object of the legislature, to protect the established trader, would be defeated, were such a construction to hold and I think, that the defendant having gone from one town, his usual place of residence, to another, and there sold his goods by auction, has thereby subjected himself to a penalty; and that the rule should be discharged.

:

GARROW, B.-I cannot agree to the strained and violent construction which the learned counsel for the defendant would have us put upon this act of parliament. To construe the act correctly, we must look to the intention of the legislature, which is two-fold: to protect the fair and established trader, and also to guard the public against persons who hawk their goods from town to town, having no fixed residence. It may be said, that the latter mischief could not arise in this

instance; but the fair trader who, being permanently resident, is in consequence exposed to considerable expenses, would be manifestly prejudiced by being undersold by itinerant persons of this description.

What

fell from my brother Hullock, in the case of the Attorney-General v. Tongue, is, in my opinion, decisive of the question; for common sense dictates, that a person guilty of the mischief which the act was intended to provide against, cannot, by a subterfuge of this description, avoid the penalties imposed to prevent it.

HULLOCK and VAUGHAN, Barons, concurred; and the rule was

1826.

ATT.-GEN.

v.

WOOLHOUSE.

Discharged.

The ATTORNEY-GENERAL v. BARRELL. THIS was an information filed against the defendant, a maker of candles; upon the statute 11 Geo. 1, c. 30. At the trial before the Lord Chief Baron, at the sittings after Easter Term, the jury found a verdict for the crown, upon the second, fourth and fifth counts of the information, subject to the opinion of the Court as to the fourth and fifth counts, upon a point raised by Jervis, for the defendant, that the articles removed were not candles, as they were proved to have been only twice dipped, or one-eighth made. The second count, for penalty of 501., was for having, in a making, more sticks than were mentioned in the declaration of the defendant. The fourth count charged that the defendant being a chandler and maker of candles, before the ex

a

Candles oneeighth made are within the

meaning of the statute,11 Geo.

1, c. 30, s. 30.

An information upon the statute 11 Geo. 1, c. 30, s. 30, against a candle maker for mixing unweighed with weighed can

dles, must

charge the act to have been

done with in

tent to deceive his Majesty of

his duties.

1826.

ATT.-GEN.

บ.

BARRELL.

hibiting of the information, to wit, on, &c., at, &c. did, from the place of his the said defendant's making of candles, fraudulently remove certain candles, that is to say, divers, to wit, five hundred pounds weight of candles, before the said last mentioned candles, or any or either of them, had been weighed by the surveying officer or officers, contra formam statuti, by which the defendant forfeited the penalty of 1007. And the fifth count, which was for a like penalty, charged a fraudulent hiding and concealing of candles with intent to deceive his majesty of his duties.

On a former day in this term, Jervis obtained a rule to shew cause why the verdict should not be entered up for the defendant upon the fourth and fifth counts, upon the objection made at the trial; or why the verdict should not be arrested upon the fourth count, the removal not being charged in that count to be with intent to defraud his majesty; and in support of the latter part of the rule, he contended that the words "with intent to deceive his majesty of or in his duties upon candles," in the 30th section of the 11 Geo. 1, c. 30 (a), were applicable to each offence created by statute; and cited 2 Hawkins' Pleas of the Crown (b);

(a) Which enacts, That if from and after the 24th day of June, 1725, any chandler or maker of candles for sale, shall mix or mingle candles which have not been duly weighed by the proper officer or officers of Excise, with others which have been weighed, or shall from the place or places of his, her, or their making of candles, fraudulently remove candles before they have been weighed by the surveying officer or officers, or shall fraudulently hide or conceal any candles whatsoever, or materials for the making of candles, with intent to deceive his Majesty of or in his duties upon candles, that then, and in every such case respectively, every such chandler or maker of candles for sale, shall forfeit and lose the sum of one hundred pounds.

(b) Sect. 110, p. 249.

1 Saunders' Reports (a); Com. Dig. (b); Daman v. Marrett (c); and Barnard v. Gosling (d), to shew that the allegation was material.

Upon the report of the Lord Chief Baron, it appeared that the witnesses, throughout the trial, had called the things removed, candles.

The Attorney-General, the Solicitor-General, Clarke, and Walton, shewed cause.-It is not necessary, to constitute a candle, that it should be of a particular size, for there are candles of all denominations. It may be sufficient in this case, that all the witnesses described those things as candles, and that they were, throughout the trial, called by no other name; but a legislative definition of a candle, is to be found in the 24 Geo. 3, c. 11, by which duties are imposed upon candles, with a proviso in the 5th section, that the act shall not extend to charge the duties on such small rush-lights as shall be made by any person, to be used in his own. house only, so as such small rush-lights be only only once dipped in, or once drawn through grease or kitchen stuff, and not at all through any tallow, melted or refined. Now, inasmuch as the candles in question, were drawn through tallow melted or refined, they clearly were candles within the meaning of this clause.

The second objection depends upon the construction of the statute 11 Geo. 1, c. 30, s. 30, which contains three specific offences. There are many regulations in Excise Laws, by which a thing perfectly innocent in itself, is prohibited by a penalty, although it may not have any tendency whatever to a breach of the revenue laws; such as the regulations in the leather trade, that (a) 135, n. (3). (6) Action Statute, (A. 3). Pleader, (d) 1 New Rep. 245; S. C. 2 C. 76. East, 569.

(c) 1 Taunt. 128.

1826.

ATT.-GEN.

v.

BARRELL.

1826.

ATT.-GEN.

v.

BARRELL.

the same person shall not be a dresser of leather and leather cutter; and in which cases it need not be alleged or proved that the party intended to defraud his majesty. Now this clause contains three distinct acts, the first of which is in itself perfectly harmless, the others not so, and the law has applied a different provision to the different cases. There is no necessary conclusion that the party will infringe the law by the first act; but what is intended to be provided against by the imposition of a penalty is, the difficulty when candles are mixed, of detecting what have and what have not been weighed. The second clause, which begins with the disjunctive "or," constitutes a distinct offence; and, to incur the penalty, the party must have an object of fraud. And the third clause, repeating the word "fraudulently," which is not contained in the first, makes the intent to deceive his majesty a component part of the offence. Now it would be a strange construction to hold that these words, at the end of the third clause, should override the second, and not the first part of the section; and yet they cannot be said to embrace the first, for that in itself is perfectly innocent. The first clause has not the word "fraudulently" annexed to it; and the construction contended for, would give to that clause a character and object different from that which it bears in itself. It has been the uniform practice to frame counts upon the first part of this clause, without adding the words, "with intent to deceive his Majesty."

Jervis and Richards, R. V., contrà.-Having argued upon the first point, that the things removed were not in common parlance called candles, were stopped by the Court.