Williams v. Davies. ments to the complainant within twelve months. Bosanquet, Q.C., for the defendant. DENMAN, J.-The order made by the Justices in this matter is appealed against, on the ground that on a previous occasion there had been an order that the putative father should pay two shillings a week until the child was thirteen years of age or the mother married. The mother married, and her husband died, whereupon the Justices made this fresh order, adjudicating paternity and directing payment. Looking at the terms of the statute, and gathering therefrom the intention of the Legislature, I think it was not intended that where the mother has once applied and an order has been made on the father, it should be open to the mother to get a fresh order in excess of the limit in point of time of the original order. So far as there is authority on the subject the point is arguable. In The Queen v. Machen (1) it was held that, where the mother failed in her application from want of evidence, she might apply again. The correctness of this decision was doubted by Mr. Justice Lush in The Queen v. Grant (2); but The Queen v. Machen (1) was followed, and that case must now be taken as law. The case of Pearson v. Heys (3) is more in point. The order of affiliation in that case was the same as the order of affiliation in this case. It was held that an order to pay until the child was sixteen or the mother should marry was a good order. Therefore the first order in this case was good. The question now is, whether, when that order has been made, the mother after the death of her husband can apply de novo. I think, looking at the scope of the Act, it is clear that the Legislature did not contemplate a second order. I do not put it entirely on the maxim Nemo debet bis vexari pro eadem causa, because the second application is (1) 14 Q.B. Rep. 74; 18 Law J. Rep. M.C. 213. (2) 36 Law J. Rep. M.C. 89; Law Rep. 2 Q.B. 466. (3) 50 Law J. Rep., M.C. 124; Law Rep. 7 Q.B. D. 260. not pro eadem causa, and the second order applies to a different time from the first; but the maxim applies to the extent that no statute ought to be construed so as to conflict with the spirit of that rule. The 3rd, 4th and 5th sections of the Bastardy Act, 1872 (35 & 36 Vict. c. 65), shew that the Legislature did not contemplate frequent applications first for one time and then for another, and the 5th section deals expressly with the time for which the orders are to run. It is at first sight difficult to say that the order limiting payments until marriage is a good order, but we are bound to follow Pearson v. Heys (3). It is not competent, after the magistrates have once made an order, for the mother to come again. I think the decision of the magistrates was wrong, and must be reversed. FIELD, J.—I am of the same opinion. The question in the Case is informally stated, and asks whether the Justices were correct in point of law-that is, whether the payment under the first order within twelve months gave them jurisdiction, or whether the lapse of time was fatal. In my opinion the second order was invalid. The first question under the Bastardy Act is, who is the father of the child? Then the statute says, "the Justices may, if they see fit, having regard to all the circumstances of the case, proceed to make an order on the putative father for payment." This gives them an absolute discretion. The 4th section does not give any limit in point of time, so that an order without any mention of time would be good. There is also no limitation as to the marriage of the woman. This silence is remarkable, because by the Act of 1844 the order was to be of no validity after the marriage of the mother. When the Legislature omitted those words in the Act of 1844, they meant them to be omitted. I should have entertained some doubt on this head; but there is a decision of this Court that the limitation "until she shall marry" is equivalent to such a limitation as "until she shall go to France," and I act on that authority willingly. In regard to the second order, would it have been competent to the Justices to decide that the defendant was Williams v. Davies. not the putative father? If they made no order for payment in the first instance, could she ask for it afterwards? I think that only one order was intended. I entertain grave doubts in regard to the dictum of my brother Manisty in Pearson v. Heys (3)-namely, that "the 4th section provides that the mother may take out the summons before or within twelve months from the birth of the child, or at any time thereafter if the father of such child has within twelve months next after the birth of the child paid money for its maintenance; so when, as in this case, the order is made and money paid under it within twelve months from the birth of the child, the mother, at the end of the period mentioned in the order, may, it would seem, come again for another order" (4). I entertain grave doubt whether payment under an order is a payment within the 3rd section. HAWKINS, J.-I have considerable doubt on this question, which has only. been argued on one side; but, as my learned brothers entertain no doubt, I will say no more. Appeal allowed. Public Health Act, 1875 (38 & 39 Vict. c. 55), 88. 94, 95 and 96-Notice to abate Nuisance-Order of Justices-Works necessary for the Purpose - Power to order Specific Works. A nuisance existed, occasioned by a closet situated in the middle of a house, and the local sanitary authority gave notice to the owner, under the Public Health Act, 1875, s. 94, to abate the same, and for that purpose to remove the closet to an outer wall. The owner failed to remove it, though he made alterations with the view (4) This dictum does not occur in the Law Journal Report of the case. The 4th section " referred to should apparently be the 3rd. VOL. 52,--M.C. of abating the nuisance; whereupon an order of Justices, under section 96, was obtained, directing him to remove the closet to an outer wall, in accordance with the notice. On a rule for a certiorari to quash the order of Justices,-Held, that the order was good, being within the words, "order to do any works necessary for that purpose." Ex parte Whitchurch (50 Law J. Rep. M.C. 41) distinguished. In this case Rose on a former day had obtained a rule nisi for a certiorari to bring up and quash an order of Justices, made under section 96 of the Public Health Act, 1875, whereby Mr. Saunders, the owner of some houses within the district of the urban sanitary authority of Bridgwater, had been ordered to comply with the requisitions of a notice previously served upon him under section 94, and to remove a certain closet from the middle of his house and place it near an outer wall, where there might be efficient ventilation, and to fix the soil pipe outside the wall. The facts were that the closet in the middle of the house being a nuisance, the sanitary authority had given notice to the applicant to abate the nuisance, and for that purpose to remove the closet to the outer wall. He made some alterationswith the view of abating the nuisance, but failed to remove the closet, and the order of the Justices now complained of was ap plied for and made. A. Charles, Q.C., and Herbert Reed, shewed cause.-The order is good. Section 96 empowers the Justices to direct the execution of any works necessary for the purpose of abating the nuisance." And in the forms given in the schedule, which, by section 317, are to be read as part of the Act, Schedule IV. Form D, it is provided that the works to be done should be specified. Ex parte Whitchurch (1) is distinguishable. J. Rose, in support of the rule.-Ex parte Whitchurch (1), on the authority of which this rule was granted, is in pointthe Justices made just such an order as the one now in question. It was never intended that the Justices should decide on (1) 50 Law J. Rep. M.C. 41. N Ex parte Saunders. the details of the work to be done. They are to order what is necessary to be done, and the owner must do it at his peril. The Act intended to protect owners against the caprices of surveyors. It might be that so soon as the owner had done the very specific thing ordered, a new surveyor might order something else. Sanitary arrangements are to a great extent matters of experiment, and are certainly the subject of rival schemes. The surveyor might order what was quite inefficient; whereas if left to the owner to abate the nuisance at his peril, all mistakes in the mode adopted are his own fault. To order structural works might be to order a person to violate the covenants of his lease. CAVE, J.-I am clearly of opinion that this rule must be discharged. It is abundantly plain that, by section 94 of the Public Health Act, the local authority may order a nuisance which has been reported to them to be abated by the person who is answerable for its existence; and then, by section 95, if such person so ordered makes default, or if the nuisance is likely to recur, then the local authority can complain to the Justices, who, under section 96, may make an order dealing with the nuisance effectively. Who is to decide what is a sufficient abatement of the nuisance or what will prevent its recurrence? Obviously, I should say, the persons who are to make the order. Then, the local authority having, in the terms of section 94, required the person to execute such works as may be necessary for the purpose of abating the nuisance, who is to decide whether the works so ordered are necessary or not? The Justices, I should suppose, before whom the question comes, under sections 95 and 96, and who have to be satisfied of the facts alleged by the complainants. Here the Justices, being Here the Justices, being satisfied on these points, have ordered certain works to be done, works which they think necessary for the purpose for which their intervention was sought. This seems to me clear enough upon the words of the Act, and that they have power to make the order; but the ingenuity of Mr. Rose has discovered the case of Ex parte Whitchurch (1), which he says shews that they had not the power. I will say no more about that case than that it is distinguishable from the present. The owner there had a privy of an ordinary kind which was a nuisance, and the Justices ordered, not another privy which should be no nuisance, but a particular kind of privy. Now, whether right or wrong, that is not this case-the applicant has not been ordered to put up a particular kind of closet, but to place his closet in a proper place. SMITH, J.-I am of the same opinion. It seems to me that no argument could have been addressed to the Court against this order but for the case of Ex parte Whitchurch (1). That is distinguishable, because the order was to make a particular kind of closet, and the Court thought it too precise. Here, however, the order is to move the closet from one place to another, and it falls directly within the terms of the Act-namely, to do such things as may be necessary to prevent the recurrence of the nuisance complained of. Licensing Acts--Discretion of Justices as to Renewal of "Off" Licences-Beerdealers' Retail Licences Act, 1882 (45 & 46 Vict. c. 34), s. 1. The discretion given to the Justices by the Beerdealers' Retail Licences Act, 1882 (45 & 46 Vict. c. 34), e. 1, is absolute as well when a renewal of a licence heretofore granted is applied for, as when the application is for a new licence. This was an application to quash an order of the Quarter Sessions of Preston made subject to a Special Case, from which it appeared that the appellant, who had held a licence for the retail sale of beer to The Queen v. Kay. be consumed off the premises since 1875, applied in September, 1882, at the general annual licensing meeting for the borough of Over Darwen, for a renewal of the licence of certain premises in his possession. The Justices refused to renew the licence, after hearing evidence, on the ground that the wants of the neighbourhood did not render it expedient to grant a certificate. The appellant appealed to the Quarter Sessions, and on the hearing of the appeal it was contended that, under section 1 of the Beerdealers' Retail Licences Amendment Act, 1882 (1), the Justices had full discretion alike in granting renewals and in giving new licences. The Court of Quarter Sessions confirmed the decision of the Justices, and dismissed the appeal with costs. They stated a Special Case for the opinion of the Court, in which the question was, " Is the discretion given by section 1 of the Beerdealers' Retail Licences Amendment Act, 1882, limited to applications in respect of premises not theretofore similarly licensed?" Addison, Q.C. (William Potter and Yarburgh with him), shewed cause. The words of the Act are plain, and give a free and unqualified discretion to refuse any application for any licence. By 4 & 5 Will. 4. c. 85, it was only necessary to have an excise licence for the sale of beer. The Wine and Beerhouse Act, 1869 (32 & 33 Vict. c. 27), provides for granting certificates for licences, and section 8 (2) enacts (1) 45 & 46 Vict. c. 34. s. 1: "Notwithstanding anything in section 8 of the Wine and Beerhouse Act, 1869, or in any other Act now in force, the licensing Justices shall be at liberty, in their free and unqualified discretion, either to refuse a certificate for any licence for sale of beer by retail to be consumed off the premises on any ground appearing to them sufficient, or to grant the same to such persons as they, in the execution of their statutory powers and in the exercise of their discretion, deem fit and proper." Section 3: "This Act may be cited as the Beerdealers' Retail Licences (Amendment) Act, 1882; and shall not extend to Scotland; and words therein have the same meaning as in the Licensing Act, 1872." (2) 32 & 33 Vict. c. 27. s. 8: "All the provisions of the said Act of the ninth year of the reign of King George the Fourth as to the terms upon which and the manner in which and the persons by whom grants of licences are to be made by that such grant shall not be refused except on one of the four grounds mentioned in the Licensing Act of 1828 (9 Geo. 4. c. 61); but this section is repealed by 43 Vict. c. 6. s. 1 (3), as regards certificates for additional licences for the sale of beer by retail for consumption off the premises. By 45 & 46 Vict. c. 34. s. 1 (3), the discretion given by the Act of 1880 (43 Vict. c 6), s. 1 (1), is extended to certificates for any licence for sale of beer by retail to be consumed off the premises. R. Henn Collins, in support of the rule. -The construction contended for would interfere with vested interests, and therefore the Court would, if possible, avoid it the Justices at the said general annual licensing meeting, and as to appeal from any act of any Justice, shall, so far as may be, have effect with regard to grants of certificates under this Act, subject to this qualification, that no application for a certificate under this Act in respect of a licence to sell by retail beer, cider or wine not to be consumed on the premises shall be refused, except upon one or more of the following grounds-namely: "1. That the applicant has failed to produce satisfactory evidence of good character. "2. That the house or shop in respect of which a licence is sought, or any adjacent house or shop owned or occupied by the person applying for a licence, is of a disorderly character or frequented by thieves, prostitutes or persons of bad cha racter. "3. That the applicant having previously held a licence for the sale of wine, spirits, beer or cider, the same has been forfeited for his misconduct, or that he has through misconduct been at any time previously adjudged disqualified from receiving any such licence or from selling any of the said articles. "4. That the applicant or the house in respect of which he applies is not duly qualified as by law is required. "Where an application for any such lastmentioned certificate is refused on the ground that the house in respect of which he applies is not duly qualified as by law is required, the Justices shall specify in writing to the applicant the grounds of their decision." (3) 43 Vict. c. 6. s. 1: "Section 8 of the Wine and Beerhouse Act, 1869, is hereby repealed, as far as the qualification therein contained relates to grants of certificates for such additional licences as aforesaid; and the licensing Justices shall be at liberty either to refuse such certificates as aforesaid on any grounds appearing to them in the exercise of their discretion sufficient, or to grant the same to such persons as they, in the execution of their statutory powers and in the exercise of their discretion, deem fit and proper," The Queen v. Kay. -The Queen v. Vine (4). The words "licensing Justices" are by section 3 (1) declared to mean "licensing Justices" within the meaning of the Licensing Act, 1872 (35 & 36 Vict. c. 94), s. 74 (5), and that relates only to Justices having jurisdiction in respect of certificates for new licences. By that Act it is provided that a new licence granted by a borough licensing committee must be confirmed by the whole body of borough Justices, or a majority of such body, assembled for the purpose of confirming such licences; but by the interpretation clause it is declared that, "The renewal of a licence means a licence granted at a general annual licensing meeting by way of renewal." The Justices refusing The Justices refusing the certificate, though Justices entitled to grant new certificates, were not sitting as a committee. The necessary interpretation of these statutes is, that discretion is only given as to new grants; otherwise henceforth there would be no distinction between new grants and renewals. FIELD, J.-I think this case is clear, and that the Justices of Quarter Sessions were warranted in exercising a discretion in this case. The question is, whether the discretion given to the Justices by the Beerdealers' Retail Licences Amendment Act, 1882 (45 & 46 Vict. c. 34), s. 1 (1), is limited to applications for certificates in respect of premises not theretofore licensed. For the appellant it was contended that, he having had a licence for so long was not to be deprived of it by the Justices except in one of the four cases enumerated in section 8 of the Wine and Beerhouse Act, 1869 (32 & 33 Vict. c. 27) (2). It is necessary for us, however, to read the Act of 1882 itself, and, if there be no ambiguity in its terms, we must give them their natural meaning. The Act of 1880 (43 Vict. c. 6. s. 1), which repeals section 8 of the Act of 1869, so far as it qualifies the right to grant certificates for additional licences for the sale of beer by retail for consumption off the premises, (4) 44 Law J. Rep. M.C. 60; Law Rep. 10 Q.B. 195. (5) 35 & 36 Vict. c. 94. s. 74: "Licensing Justices' means the Justices having jurisdiction in respect of the grant of new licences in a licensing district under the last-mentioned Act (the Intoxicating Liquor Licensing Act, 1828), as amended by this Act." is referred to in the preamble of the Act of 1882 (45 & 46 Vict. c. 34), which recites that, "It is expedient to extend the provisions of the said Act to the granting of certificates for all licences for the sale of beer by retail for consumption off the premises." That recital shews the object of the Act to be to extend the discretion given to the Judges by the Act of 1880 in respect of additional "off" licences to all "off" licences. The Legislature then pro ceeds to enact that, "The licensing Justices shall be at liberty in their free and unqualified discretion, either to refuse a certificate for any licence for the sale of beer by retail to be consumed off the premises on any grounds appearing to them sufficient, or to grant the same." For the appellant it is contended that the words "licensing Justices" being by section 3 of the Act of 1882 (1) declared to have the same meaning as in the Licensing Act, 1872, which defines them to be Justices having jurisdiction in respect of the grant of new licences in a licensing district under the Intoxicating Liquor Licensing Act, 1828, as amended by the Licensing Act of 1872, the enactment in section 1 of the Act of 1882 cannot be intended by the Legislature to apply to cases of the renewal of licences, and that therefore there is no discretion in respect of certificates for renewal of licences. But this licence has in fact been refused by a committee of those Justices who have jurisdiction to grant new licences in this district, although formally, perhaps, the refusal should be confirmed by the whole bench of magistrates at Quarter Sessions. But I think that the Legislature intended to give a new discretion to the Justices in all cases whether of renewal or of new licences. It has been argued that in prior Acts the Legislature has always drawn a great distinction between applications for renewal and those for new licences. It is true that an applicant for a new licence has to give notice to the neighbours in order that they may have an opportunity of opposing the application; and therefore it is provided that notices in several public places should be exhibited for stated periods of time for the protection of the magistrates in the exercise of the discretion given to them. These formalities having been once gone through, and a licence having |