CHAN.] INCHBALD v. ROBINSON. INCHBALD v. BARRINGTON. proceeding with the erection of the circus, and from using the same, or any other erection on the same piece of ground, for equestrian performances, or any other noisy purpose, or for any purpose calculated to draw together large assemblies of disorderly persons. On the 5th Sept. 1867, Malins, V. C., granted an injunction against both defendants, and the building of the circus was discontinued, and what had been built was pulled down and removed. Barrington, thereupon, entered into an agreement with a Mr. Jaque, to hire a piece of ground called the "Fairfield," for the erection of the circus. This piece of ground had been used from time immemorial for the holding of fairs, and circuses had been previously erected there. Barrington erected his circus there, and commenced the performances. The "Fairfield" was in front of Park-terrace, and the circus was at a distance of about 115 yards from Inchbald's house, and standing opposite to it. Inchbald thereupon, on the 23rd Sept. 1867, filed the bill in the second suit, against Barrington and Jaque, for the purpose of restraining the performances of the circus. The bill in this suit stated that there was a strip of garden ground between the Fairfield and the road in front of Park-terrace, and that the entrance to the circus was through a gate in the fence opposite the next house to the plaintiff's house, and that there was no building or other obstruction to sound between the plaintiff's house and the circus, except one or two trees in the strip of garden ground. The bill stated that the circus was opened on the 18th Sept., and that the performance commenced on that day at half-past seven in the evening, and lasted until about half-past ten to eleven o'clock; that a great number of persons attended the performance, and that throughout the performance there was music, including a trombone and other wind instruments, and violoncello, and great noise, with shouting and cracking of whips; that the noise occasioned very great disturbance to the plaintiff and his family, and to other occupiers of the houses in Park-lane; that the performance attracted vendors of walnuts, and other noisy persons in great numbers, who loitered about Parklane opposite the terrace, and made a great noise, to the annoyance and disturbance of the plaintiff and his family, and the inhabitants of houses in the immediate neighbourhood. The bill then referred to subsequent performances, and alleged that similar annoyances had been produced thereby. And the bill prayed for an injunction in similar terms to the bill in the first suit. An injunction was granted by V. C. Malins in this suit on the 26th Sept. 1867. The plaintiff consented to its operation being suspended for a few days, and at the expiration of that time the circus was removed. Appeals were presented from the orders of the 5th Sept. and the 26th Sept. The appeal in Inchbald v. Robinson was heard by Lord Justice Lord Cairns on the 15th Jan. 1868, when the appeal motion was ordered to stand over till after the hearing of the cause. The appeal in Inchbald V. Barrington was heard by Lord Justice Lord Cairns on the 17th Nov. 1867. His Lordship was of opinion that the evidence then before the court was not sufficient to establish a nuisance, and he consequently dissolved the injunction. His Lordship, in giving judgment, said (inter alia): "I agree that the question in the cause appears to be entirely a question for the hearing. There are no doubt cases in which the act about to be committed, if it is allowed to proceed, will occasion an effect to the plaintiff, which will be irremediable, and therefore, in a case of that kind, or it might be in a case where the nuisance complained of was clearly and distinctly such as had been the subject of previous [CHAN. decision, the court might even, on an interlocutory application, grant an injunction to keep matters in statu quo till the hearing. With regard to the case now before the court, as it will have to be decided at the hearing, I do not desire to express any final or formal opinion upon it, and it is sufficient for me to say that I am far from satisfied, upon the evidence now before the court, that any case of nuisance, as that term is understood at law, can be maintained by the plaintiff. The evidence at the hearing may be very different from what it is now, and my observation applies to the evidence as it now stands. There are no doubt many authorities to the effect that noise in the immediate proximity of a residence may become a nuisance, and may be abated as such. There are authorities to show that the collecting of crowds immediately before a reșidence, so as to block up the approaches to the residence, may be a nuisance, and that, if the col lection of those crowds is to be attributed to the act of a particular individual, that individual may be restrained from the commission of that act. But the evidence entirely fails here to satisfy me that the noise of the performance, by which I refer to the noise of the music, is such as to occasion a nuisance to a house situate so far off as the plaintiff's house is stated to be, and the evidence fails to satisfy me that there is any collection of crowds to such an extent as to block up the thoroughfare, or to create a nuisance to the plaintiff. I say no more than that, because at the hearing the evidence may be of a more satisfactory kind, and may alter the view that may be formed of the case upon the present evidence. I think the question is one for the hearing. It may be said that, the circus having been removed, and there being no immediate inten tion of rebuilding or replacing it on this piece of ground, the order which has been made might be allowed to stand. But I cannot help feeling that the defendant would go to the hearing of the cause with very great prejudice, if (there not being, in my opinion, any ground for the order) the order for an injunction were allowed to remain, and to place the defendant, as he would be at the hearing, in the position not of having a case proved against him, but of being obliged then to get rid of the injune tion which had been granted on the previous occa sion. I think, therefore, with great respect to the Vice-Chancellor, that the order appealed from ought to be discharged." The two causes came to a hearing in Dec. 1868, before Malins, V. C., and his Honour then made the injunction in both suits perpetual against Bar rington. The injunctions against Robinson and Jaque were dissolved. With regard to the evidence as it stood at the hearing in the first suit, it is unnecessary to say more than that in the opinion of the Lords Justices it failed entirely to support the plaintiff's case, either as to noise or as to the assembling of disorderly crowds. 66 In the second suit, the plaintiff made an affidavit in the following terms: Sitting in my drawing room I could most distinctly hear the music and band in the circus, and distinguish the tunes, with ringing of a bell, cracking of the whip, the shouting to the horses performing, loud roars of laughter, with clapping of hands, stamping of feet, and other applause. I could also hear the talking of the clown, and could even distinguish occasionally the words used, and so distinctly could I hear sounds from the circus, that I could even distinguish a single person clapping his hands. I could als while in my dining-room, with the window closed and fastened, the shutters also being closed and fastened, hear the music very distinctly. I could hear also at other times a most unpleasant noise from an instrument which I took to be either s trombone or a bass viol. I could hear also the CHAN.] INCHBALD v. ROBINSON. INCHBALD v. BARRINGTON. applause, so as entirely to destroy the ordinary peace and quiet of my dwelling-house. In fact, I am satisfied that in no room in my house could I entirely escape from the noises arising from the circus." The plaintiff further, in the same affidavit, said: "During the performance numbers of disorderly persons and women of loose character were in the habit of collecting in the neighbourhood of Parkterrace and in Park-lane, and more especially at the conclusion of the performances, the shouting, hooting and yelling of the crowds leaving was most offensive, and caused a disturbance of a most intolerable character." Mrs. Inchbald, the wife of the plaintiff, said: "In the dining-room of my house, with the windows and shutters closed, I could distinctly hear the music and other noises attending the performances. In my children's nursery, with the windows shut, I could distinguish many of the tunes played in the circus, and amongst others noted some of the following, namely, one of the Lancers' Quadrilles, the Guards' Waltz, and the Perfect Cure. I could also distinctly hear the cracking of the whips, the talking of the clowns, together with the laughter, stamping, and applause of the audience. The noises from the circus were a great nuisance to me, and caused great annoyance and irritation to me, and prevented my enjoying the ordinary peace and quiet of my house, and following with comfort my accustomed occupations. The performances attracted large numbers of disorderly and noisy people, the shouting and hooting of whom, particularly on leaving the circus, was a nuisance of a most offensive and unbearable character." The Rev. J. F. Franks (who lived in No. 8, Parkterrace, the plaintiff's house being No. 5) said: "I remember on one occasion, in particular, my wife was so much disturbed by the continued noise of the music during the evening performance, that she left the drawing-room and occupied another room. The noise and disturbance occasioned by the performances and the crowds coming away from the same would, if continued, as was intended, for two months, have become a great nuisance to myself and my family, and in case of illness it might be productive of serious consequences." This testimony was confirmed, to a considerable extent, by four or five other witnesses, and it was, in the opinion of the Lords Justices, substantially contradicted by the evidence adduced by the defendant Barrington. The Vice-Chancellor, upon this evidence, held that the plaintiff had established his case in both suits, and accordingly, in both suits, decreed a perpetual injunction against Barrington, with costs. In the course of his judgment his Honour, after referring to Sir J. Rolt's Act, said: "I desire to be understood as expressing my judicial opinion, that in every case of nuisance brought before the court, whether it be by darkening lights, by fouling streams, by making undue noises, or whatever it may be, it is the duty of this court to decide the question of nuisance or no nuisance for itself, and any judge who directed any such case as that to go to law, where the evidence enables him to come to a conclusion without directing an issue, would, in my view of the case, totally miscarry in the discharge of his duty." And with regard to the first suit, his Honour said: "I come to the conclusion that there were such noises and confusion that the plaintiff was not bound to submit to, and it did to a serious extent interfere with the enjoyment of his dwelling, to which by the laws of this country he is entitled, and on that ground I can have no doubt whatever that the injunction in the first suit must be made perpetual, and that the defendant Barrington must pay the costs of the suit." As to the [CHAN. second suit, his Honour said: "The evidence has abundantly satisfied me that the plaintiff was exposed to material inconvenience and annoyance in his house, which he is entitled by the rules of this court to be protected from. But the main point argued in the defendant's favour is, that the Fairfield is a place in which Croydon fair has been, from time immemorial held. It is a place in which, within living memory, all the exhibitions of the place have been held; and when Mr. Inchbald took his house, which had in its front the Fairfield, he must reasonably have expected to be exposed to annoyance of this kind, and there is proof that there have, from time to time, been circuses held on that ground. But I think it equally clear that, when the fair is held, it is an annoyance of very limited duration, for it is admitted that the fair was a cattle fair for the first day, and a pleasure fair for two days afterwards. It is an annoyance or nuisance commencing and ending within a week. There is a total absence of evidence to show that circuses have been held in the Fairfield having more than a week's duration. I draw a distinction. Every member of society must make reasonable concessions to other members of society for reasonable amusements, and for the occupations of life; but even they may become a nuisance. A circus which any man would endure rather than come to this court, for a week or more than a week, becomes intoler able when it continues two months. And not only two months, because it is obvious that if this injunction was not continued, the circus might be put up again in the season of 1868, and every succeeding season it would be there again. But for the injunction, the plaintiff might be exposed to this for half a year, or whenever Mr. Barrington might think fit. I intend to give no sanction to that as far as my jurisdiction is concerned, and I think that the injunction must be made perpetual against Mr. Barrington, and he must also pay the costs of the suit." Glasse, Q. C., Swanston, Q. C., and A. E. Miller, for the appellant in the first suit. Karslake, Q. C., and Elderton, for the plaintiff in the first suit. No reply was heard, but the judgment of the court was not delivered until after the appeal in the second suit had been heard. Glasse, Q. C., and A. E. Miller, for the appellant in the second suit. Karslake, Q. C., and H. Cadman Jones, for the plaintiff in the second suit, were not called upon. The following authorities were cited or referred to in the course of the arguments: Jacomb v. Knight, 8 L. T. Rep. N. S. 412; L. App. Eaden v. Firth, 1 H. & M. 573; Bostock v. The North Staffordshire Railway Com- Rex v. Moore, 5 B. & Ad. 184; White v. Cohen, 1 Drew. 312; Morgan v. The Great Eastern Railway Company, Lord Justice SELWYN said that the two suits CHAN.] INCHBALD V. ROBINSON. INCHBALD v. BARRINGTON. [CHAN spective injury. The rule applicable to a case of that kind was well stated in Mr. Kerr's useful work on Injunctions, at p. 337, and the evidence in this suit entirely failed to bring the case within the rule there laid down. The suit therefore failed, and the bill must be dismissed as against the defendant Robinson. The suit of Inchbald v. Barrington, stood in quite a different position. The bill alleged that the noise of the circus caused an intolerable nuisance. When the appeal from the interlocutory injunction was before Lord Cairns, he came (in his Lordship's opinion) to a perfectly correct con clusion upon the evidence then before him. But how did the evidence stand now? First, there was the evidence of the plaintiff himself, who said that he could hear the noise to such an extent as to destroy the ordinary peace and quiet of his dwellinghouse. In this statement he was supported by a multitude of witnesses, and their testimony, if uncontradicted, brought the case entirely within the authorities, and amply justified the interference of this court. Now, besides the plaintiff and his wife there were seven witnesses, who were entirely uncontradicted. Did then the fact that the circus was intended to last for eight weeks only render it improper for the court to interfere? His Lordship thought that it did not. This appeal, therefore, failed, and must be dismissed. As, however, the parties had wisely agreed not to insist on having the costs in both suits taxed, and then set-off the one against the other, the bill in the first suit would be dismissed, and the injunction in the second suit made perpetual, but there would be no costs on either side, either in this court or in the court below. stood in very different positions, but there could be no doubt as to the law which was applicable to cases of this sort. It was clearly laid down in the judgment given by Lord Cairns, when he dissolved the injunction in the second of these suits. It could not be reasonably expected that this court should decide the abstract question whether a circus must necessarily be a nuisance, if placed within some fixed distance from a dwelling-house, nor could such a question as that be sent to be tried by a jury. But when there was clear evidence of the existence of a nuisance it ought to be stopped by the interference of this court. The question was therefore reduced to one upon the pleadings and the evidence in the cause. The first objection which had been raised to these appeals was that they were appeals for costs only, and his Lordship considered the rule of this court which prohibited such appeals to be a very wholesome rule. But these appeals were really not for costs only, for in both suits a perpetual injunction had been granted at the hearing, and in the first suit the defendant's appeal motion from the interlocutory injunction was ordered to stand over till after the hearing of the cause. In the suit of Inchbald v. Robinson, even the allegations of the bill which referred to the circus which had been placed upon the same ground in the previous year only stated that a nuisance had been caused by the collection of crowds of disorderly persons; it was not alleged that there was a nuisance from incessant drumming or other noise. Nor did the matter rest there, for with the exception of one ambiguous paragraph in the plaintiff's own affidavit, there was no evidence at all, as to belief or otherwise, that the defendant's circus would be conducted with incessant drumming, or noise or any thing of the kind. Therefore in the first suit the question was narrowed to the question of the collection of crowds, and whether the evidence as to that was enough to Lord Justice GIFFARD said that the defendant induce this court to interfere. There could be no had a clear right to appeal from the orders for an doubt that a crowd might be a nuisance. But the injunction, and therefore the appeals were not court must have regard to all the circumstances of simply for costs. But it was argued that before any the case, and the position of the parties. The injunction was granted the court ought to direct an plaintiff was not disentitled to relief because he was issue to be tried to establish the fact whether there only a tenant from year to year, though no doubt was a nuisance. His Lordship had no hesitation in that was a circumstance to be taken into consider- saying that, whatever might have been the case ation in determining the amount of nuisance. So before Sir J. Rolt's Act was passed, it was now the also must the fact that the performances of the duty of this court to determine for itself the quescircus were only intended to last for eight weeks, tion of nuisance. It was the duty of the court to though that would make the court very strict in see whether the evidence was satisfactory to its own looking at the evidence. In the case of Rex v. Moore mind, and only to direct an issue to be tried if the (ubi sup.), which had been much relied upon to show evidence was not satisfactory to itself, and when it that the assembling of noisy crowds was a nuisance at was satisfied that the verdict of a jury was essential law, the crowds which were complained of collected to the ends of justice. His Lordship was clearly outside an inclosure where persons were shooting of opinion that in neither of the present suits was at pigeons, and the crowds outside were assembled the verdict of a jury necessary. In the present suit, for the purpose of shooting at the stray pigeons neither the allegations of the bill nor the evidence which escaped. The performance which collected were such as to justify the interference of the court. the crowds there was carried on in the open air, The allegations amounted to this, that the erection whereas in the present case the performances were of a circus must necessarily produce a nuisance by inside a building, and were more like the perform- the collection of disorderly crowds. The evidence ances of a theatre. There was very little analogy was very unsatisfactory, and if on such allegations, between that case and the present, where the crowds and on such evidence, the injunction could be suscomplained of were of persons going to and from tained, you must stop any exhibition whatever near the performances in the circus. In the case of any dwelling-house. In the second suit, there was Walker v. Brewster, the performance which caused a very different state of circumstances. The bill the crowds to assemble was an open-air entertain-contained allegations as to the nuisance caused by ment, consisting partly of an exhibition of fireworks, which could be as well seen from outside the grounds in which they were let off as from inside; and there the person who gave the entertainment was held responsible for the nuisance caused by the assembling of crowds. There was nothing in the evidence in the present case showing anything like the collection of crowds in front of the plaintiff's house in such a way as to block up the access to it, and there was really nothing to induce the court to interfere, especially in a case of merely pro the noise of the performances, and though the plaintiff was only a yearly tenant, and the performances were intended to last for eight weeks only, yet the evidence as it stood at the hearing made it clear that every night of that period of eight weeks there would be very plainly heard in every room in the plaintiff's house all the noises accompanying the performances of a circus. That, in his Lordship's opinion, was plainly a nuisance which would interfere with the ordinary comfort of human existence. The bill in the first suit must be dismissed, and a The 66 power of mitigating the penalty imposed upon an offender against the Customs Acts, given to the magistrate by sects. 263 and 280 of the Customs Consolidation Act 1853 (16 & 17 Vict. c. 107), does not apply to the case of a person who " has been detained," and taken before a magistrate, under sect. 28 of the Supplemental Customs Act 1853 (18 & 19 Vict. c. 96), for •having been found or discovered to have been on board a ship, &c., having contraband goods on board ;" and in such case, upon the confession of the offender, or proof upon oath of the offence, the magistrate is bound to convict him in the full penalty of 100l. imposed by sect. 28, and the offender must thereupon immediately pay the same "without any mitigation" (sect. 281 of the Customs Act 1853), or be committed to quol in default. This was a case stated under the statute (20 & 21 Vict. c. 43) for the purpose of obtaining the opinion of the court as follows: At the Thames Police Court, at Stepney, in the county of Middlesex, before me the undersigned John Paget, one of the magistrates of the police courts of the metropolis, sitting at the said Thames Police Court, Jonathan Gill Jackson (hereinafter called the respondent) was brought before me in custody, having been detained for the offence hereinafter mentioned, and information was then and there exhibited before me, by direction of the Commissioners of Her Majesty's Customs, by James Bond (hereinafter called the appellant), against the said respondent in the words and figures following: 66 Metropolitan Police District, Stepney to Wit. "Be it remembered that James Bond, an officer of customs, under the direction of the Commissioners of Customs, informs me, John Paget, Esq., one of the magistrates of the police courts of the metropolis, sitting at the Thames Police Court, at Stepney, within the Metropolitan Police District, "That Jonathan Gill Jackson, on the 2nd Nov. inst., was found or discovered to have been on board a ship or boat, within a port, bay, harbour, river, or creek, of the United Kingdom, contrary to sect. 28 of the Supplemental Customs Consolidation Act 1855, whereby the said Jonathan Gill Jackson has forfeited the sum of 1007. "(Signed) JAMES BOND. "Exhibited to and before me, the 2nd Nov. 1868 "(Signed) JOHN PAGET.” And upon the said information being read, the respondent pleaded guilty thereto, and was convicted by me of the said offence; and I did adjudge that the said respondent should forfeit and pay for his said offence the sum of 10., which sum the said respondent then and there paid into the hands of me, the said justice, for the use of Her Majesty. And whereas the appellant, being dissatisfied with my determination, upon the hearing of the said information, as being erroneous in point of law, in this, to wit, that I had no power by law to mitigate the said penalty, and that I ought to have adjudged that the said respondent should forfeit and pay the sum of 1007, and hath, pursuant to sect. 2 of the statute (20 & 21 Vict. c. 43), applied to me in writing, within three days after the said determination, to state and sign a case, setting forth the facts and the grounds of such my determination as aforesaid, for the opinion of Her Majesty's Court of Exchequer at Westminster. Now, therefore, I, the said John Paget, as such magistrate as aforesaid, in compliance with the said application of the said appellant, and the provisions of the statute aforesaid, do hereby state and sign this case, and I do set forth the facts as hereinbefore stated, and I do state the grounds for my determination as follows, that is to say, The Supplemental Customs Consolidation Act 1855, provides that the said 28th section of that Act, in the said information referred to, shall be Customs Consolidation Act 1853, and shall be read taken to be incorporated in and form part of the in lieu of the 236th section of the last mentioned Act. The 263rd section of the latter Act provides, amongst other things, that in proceedings by information before a justice or justices, such justice or 100l. with power to enforce or mitigate any penalty justices should have jurisdiction to the extent of sought to be recovered; and I, having considered the said case, was of opinion that the sum of 104 which the said respondent was so convicted as was an adequate and fit penalty for the offence of aforesaid, and did mitigate the said penalty accordingly. The question of law arising on the above statement, and upon which the opinion of the court is asked, is, therefore, as follows: Whether, in the case of such correction as afore said, I, as such magistrate, had or had not power so to mitigate the said penalty of 100l. sought to be recovered as aforesaid. The Attorney-General (Sir R. P. Collier, Q.C.), with whom were the Solicitor-General (Sir J. D. Coleridge, Q.C.), Locke, Q.C., and Beasley, appeared to support the appeal on behalf of the Crown.-The respondent was convicted of the offence in question, namely, of having been found on board a vessel with contraband goods on board under sect. 28 of the Supplemental Customs Consolidation Act 1855 (18 & 19 Vict. c. 96), which section is substituted for sect. 236 of the former Act of 1855. The last three lines of that section (28) are the material parts, namely, that the party so found "shall forfeit the sum of 100l., and shall be detained and taken before any justice, to be dealt with as thereinafter directed." The material point is that the respondent was a person "liable to be detained," and that he was in fact so "detained." By sect. 281 of the previous Act, the Customs Consolidation Act 1853 (16 & 17 Vict. c. 107) any justice before whom any person "liable to be detained, and who shall have been detained," which is the case here, shall be brought, may, either upon the party's confession, or upon proof of the offence upon oath, convict such person of the offence, whereupon the latter shall, immediately thereupon, "pay, without any mitigation," the penalty imposed for the offence, or in default be committed to gaol for six months. The respondent here being a person "liable to be detained," and "having been detained" under sect. 281 of the Customs Act of 1853, was under sect. 28 of the later Act of 1855 liable to for Ex.] Ex parte RICHARD TOMLINSON. [Q. B. think, fallen into a mistake, and we must therefore give effect to the appeal, the result of which, I suppose, will be that the sentence imposing the full penalty of 1007. on the respondent must be entered or taken to have been passed by the magistrate. CHANNELL, B.-I think that this is a very clear case. The magistrate has done wrong if he supposed that he had any power to mitigate the penalty in the present case. I agree with the AttorneyGeneral that the statutes taken together refer to different classes of offence, the one the greater the other the less, and in the former of which there is a power of detention. The magistrate evidently proceeded under the 263rd section; and our attention has been drawn to some other sections which might be supposed to throw light upon the subject. I do not think that we have any right to interfere with them at all. Our judgment, therefore, will be for the appellant. feit the penalty of 1007, without any power in the magistrate to mitigate the amount. The learned magistrate here, it seems, relied on sect. 263 of the Act of 1853, as giving him a power of mitigation, but that section applied only to a case where goods have been seized, and not to a case like the present, where a person has been detained under sect. 281, in which case the penalty imposed is imposed by sect. 28 of the later statute of 1855, "without any mitigation;" and if it be not paid the party must, under the same section, be sent to prison. No doubt by sect. 243 of the Act of 1853 the commissioners have the power of mitigating the penalty or remitting the punishment of imprisonment, but the magistrate in this case had no such power. No doubt, too, by sect. 280 of the Act of 1853, the magistrate has power, in the cases to which that section applies, to mitigate the penalty for a first offence to a minimum of one-fourth of the penalty incurred; but that section is not applicable here, and, moreover, if it were, the mitigated penalty of 10. does not amount to one-fourth of 100%. The previous section, 278, shows what is meant by the words "as aforesaid" in sect. 280. [CHANNELL, B.-I should think that the words "as aforesaid," in sect. 280, refer rather to the 277th section than to the 278th. That is probably so; but sect. 281, it is contended, sets all doubt in the matter at rest. The learned magis-been seized, and therefore there is no power to miti trate here seems to have considered that he had power, under either sect. 263 or sect. 280 of the Act, of 1853 (16 & 17 Vict. c. 107), to mitigate the penalty of 100l. to 10.; but it is contended, on the part of the Crown, that he had no power of mitigation at all under either of those sections in the present case, and that even if he had a power under sect. 280 (which is denied), that it extended only to reducing the penalty to one-fourth of the original amount of 1007. PIGOTT, B.-I am entirely of the same opinion The proviso of the 263rd section of the Customs Act of 1853 must be read as if the words "where any goods shall have been seized" give a clue to all that follows. This is not a case where goods have gate the penalty under that section; and I think that my brother Channell has given the true reading to the 280th section of the same statute as applying to "justices as aforesaid," and not to "penalties as aforesaid." CLEASBY, B.--I concur entirely in the opinions that have been expressed by my Lord and my brothers Channell and Pigott; and I will only add that, as regards the 263rd section in those cases where it does apply and the magistrate has the Customs have the power of preventing his doing so by power of mitigating the penalty, the Commissioners of directing that the case shall proceed in the Superior KELLY, C. B.-I apprehend that we must deliver Courts. The effect of the concluding part of the our judgment in this case for the appellant. The proviso is to take the case, at the will of the Compenalty, we must take it for granted, has been miti-missioners, out of the jurisdiction of the magistrate who has power to mitigate the penalty. No one appeared on the part of the respondent to support the magistrate's decision. gated here under the power contained, or supposed to be contained, in the 263rd section of the Customs Consolidation Act 1853 (16 & 17 Vict. c. 107). I asked the learned Attorney-General, in the course of the argument, whether there was any other clause in either of the Acts, containing or comprising the power of mitigation, or of substitution of a less for a greater penalty, than those which have been referred to in the special case and in the argument at bar, and the answer given to me by the AttorneyGeneral was that there is none. We must take it for granted, therefore, that there is none, and I presume that such is the case. If, therefore, we look at the 263rd section, under which we are to presume that the learned magistrate has reduced the amount of the penalty in this case, we find that it is confined entirely to cases in which goods shall have been seized in the United Kingdom, and with regard to which the amount of duty or penalty claimed by the Crown shall not exceed the sum of 100%. In the case of goods seized, where penalties are sought to be enforced before the magistrates under this section, the magistrate has power to mitigate or to reduce the penalty, or rather to substitute the penalty about to be imposed for a greater sum. But that is confined to the case of goods seized. Now in the case at present before the court there has been no seizure of goods at all. The present is an offence of a totally different character, and as to which we find no provision in any of the Acts relating to the Customs enabling the magistrate to mitigate the penalty. these circumstances, the learned magistrate has, I Under Judgment for the appellant. The full penalty of 100l. to be inflicted. Attorney for the appellant, J. F. Hamel, Solicitor the Customs, Custom House, Lower Thamesstreet, E.C. to COURT OF QUEEN'S BENCH. Reported by T. W. SAUNDERS and J. SHORTT, Esq., Barristers-at-Law. Thursday, April 15, 1869. Ex parte RICHARD TOMLINSON. Conviction Certiorari to remove - RecognisanceAbsence of the defendant-Enlargement of the retura to the certiorari. R. T. having been convicted of an offence under the Customs Act, he paid the penalty and costs, and thereupon applied for a rule for a certiorari to remove the conviction into this court to be quashed, which rule upon the argument was made absolute, and the certiorari issued; but R T. having been necessitated to go to sea upon a voyage which will detain him from England for the remainder of the year, was thereby unable to enter into the recognisance required by the 5 Geo. 2, c. 19, s. 2, and so the certiorari remained unreturned. Under the circumstances the court, whilst it could not order a sum equal to the recognisance to be paid into court as a substitute, directed the return to the cer tiorari to be enlarged for a twelvemonth, |