1861. The QUEEN v. Recorder of first, because the conduct of the respondents' attorney was disingenuous: secondly, because the affidavit which he has filed, on shewing cause, is very improperly prepared, contains mere repetitions of what had already been sworn to, and must have been so framed with a view, not to informing the Court, but to increasing the costs. Friday, Rule discharged, without costs. DUTTON against PowLES. [Reported, in the Queen's Bench, and in the Exchequer Chamber on error from that Court, 2 B. & S. 174.] Saturday, January 26th. Earthenware jugs or drinking cups, ordinarily used as imperial measures by a publican in his business, are, although not stamped The QUEEN, on the prosecution of HENRY BURTON, respondent, against ISAAC AULTON, appellant. ΟΝ N an appeal to the Worcestershire Quarter Sessions by Isaac Aulton, against a conviction of him by two justices under stat. 5 & 6 . 4. c. 63., the Sessions affirmed the conviction, subject to the opinion of this Court on the following case. as measures, and exempted by stat. 5 & 6 W. 4. c. 63. s. 21. from being so stamped, nevertheless "measures" within the meaning of sect. 28 of that Act, which empowers any authorized inspector of weights and measures to enter any shop or place within his jurisdiction, in which goods are exposed and kept for sale, and there to examine all measures, and to compare and try them with the copies of the imperial standard measures required by the Act to be provided: and renders measures, found on such examination to be unjust, liable to be seized and forfeited; and the person in whose possession they are found to be convicted in a penalty. The appellant, before and at the time of the seizure hereinafter mentioned, was a licensed victualler and retailer of beer in Dudley, in the county of Worcester, and sold beer to customers out of the house, and to customers to drink in the house, the beer in the latter case being supplied sometimes outside the bar, sometimes within the bar, and sometimes in the parlour. The respondent, Henry Burton, is the inspector of weights and measures for the district of Dudley. On 23rd August, 1859, he entered the appellant's house for the purpose of examining the appellant's measures. He there found the appellant's wife, and told her that he was come to inspect her measures. She thereupon produced a number of measures, which he examined and found to be correct. On a shelf in the bar, on the lefthand side, apart from those measures, were nine earthenware cups. The inspector said to appellant's wife "I must try those also." She said, "They are cups, and we only use them for the parlour; you'll not find them measure." The inspector, however, insisted upon trying them, and the cups were handed to him. He tested them with a measure, found by the Sessions to be a copy of the imperial pint measure, and found them to contain three quarters of a quartern less than the said measure. These cups were without stamp or mark. The same price was charged for the beer sold in them as in the stamped pint measures, but some of the witnesses stated that when beer was supplied to them in those cups they did not suppose that they were receiving a full pint; whilst other witnesses said that when they were served with beer in those cups they meant to have and thought they were getting a pint of beer, for which they paid the usual full price. The inspector seized the said cups 1861. The QUEEN V. AULTON. 1861. The QUEEN V. AULTON. as being unjust measures, and caused an information to be laid against the appellant to recover the penalties alleged to have become payable by reason of his having unjust measures in his possession. The case came on for hearing before the justices on 5th September then following, when the appellant was convicted and adjudged to pay the penalty of 9s. and costs. The conviction purported to be "for that the said Isaac Aulton, on 23rd August, 1859, at the parish of Dudley, in the county of Worcester, unlawfully had in his possession, in a certain shop there, being the shop of the said Isaac Aulton, wherein goods were then kept for sale by measure, nine measures, purporting respectively to be pint measures; all which said measures, so purporting respectively to be pint measures, were, upon examination thereof duly made on the day and year aforesaid, according to the statute in that behalf, in the said shop, by Henry Burton, an inspector of weights and measures duly appointed in that behalf for the district wherein the said shop is situate, and having jurisdiction in the premises, and being duly authorized in writing for that purpose, under the hand of" a justice of the peace for Worcestershire, "found to be unjust, contrary to stat. 5 & 6 W. 4. c. 63." The conviction concluded, "And we do adjudge that the said Isaac Aulton has forfeited for his said offence the sum of 9s." At the Quarter Sessions it was contended for the appellant, on grounds of appeal which raised the objections, First. That the conviction was bad for not stating an adjudication as to the costs, and mode of enforcing payment thereof. Secondly. That unstamped earthenware jugs, or drinking cups, ordinarily used as measures, are not "measures" within the meaning of the 28th section of stat. 5 & 6 W. 4. c. 63. The Court of Quarter Sessions overruled these objections, and found that the cups in question had been ordinarily used by the appellant as pint measures, but not otherwise represented to be pint measures. If the Court of Queen's Bench should be of opinion that either objection ought to prevail, the conviction was to be quashed: otherwise the judgment of the Sessions was to be affirmed, with such further costs as the Court might direct. Welsby, for the respondent, in support of the conviction. (D. D. Keane, contrà, abandoned the first ground of appeal.) The earthenware cups in question were "measures" within the meaning of stat. 5 & 6 W.4. c. 63. s. 28., under which the appellant was convicted. Sect. 6 of that Act abolishes all local or customary measures, and subjects to a penalty every person who shall sell by any denomination of measures other than one of the imperial measures, or some multiple or aliquot part thereof: with a proviso "that nothing" therein " contained shall prevent the sale. of articles in any vessel, where such vessel is not represented as containing any amount of imperial measure, or of any fixed, local, or customary measure heretofore in use." Sect. 12 enacts that all measures of capacity which shall be made after the passing of the Act shall have their contents denominated, stamped, or marked on the outside, in legible figures and letters. Sect. 21 exempts from being stamped "any glass or earthenware jug or drinking cup, though represented as containing the amount of any imperial measure, or of any multiple thereof." Then 1861. The QUEEN V. AULTON. 1861. The QUEEN v. AULTON. sect. 28 empowers any authorized inspector of weights and measures "to enter any shop, store, warehouse, stall, yard, or place whatsoever within his jurisdiction, wherein goods shall be exposed or kept for sale,” “and there to examine all weights, measures," &c., "and to compare and try the same with the copies of the imperial standard weights and measures required or authorized to be provided under" the "Act; and if upon such examination it shall appear that the said weights or measures are light or otherwise unjust, the same shall be liable to be seized and forfeited; and the person or persons in whose possession the same shall be found. shall, on conviction, forfeit a sum not exceeding 51.” In the present case, the Sessions have found as a fact that the cups in question had been ordinarily used by the appellant as pint measures. Although, therefore, they were made of earthenware, and as such did not, by reason of sect. 21, require to be stamped, their ordinary use, as pint measures, by the appellant, amounted to a representation, within the meaning of sect. 6, that they contained imperial pints; or, in other words, that they were "measures" within the meaning of sect. 28. Washington v. Young (a). is directly in point to shew that the ordinary use of earthenware vessels as measures constitutes them measures subject to the operation of the Act. (He was then stopped.) D. D. Keane, contrà. The conviction states that the appellant was convicted for unlawfully having in his possession, in his shop, "nine measures, purporting respectively to be pint measures," but not being such. (a) 5 Exch. 403. |