No. 265. 28 VICTORIA, passing therein, and any person who uses any threatening abusive or insulting words or behaviour in any public street thoroughfare or place with intent to provoke a breach of the peace or whereby a breach of the peace may be occasioned,() shall forfeit and pay on conviction any sum not exceeding ten pounds; and in default of immediate payment shall be committed to the common gaol for any term not exceeding three calendar months. Keepers of skittle grounds &c. to register their premises with local authority. Penalty on such persons refusing admittance to justice or constable. Penalty on keepers of re ducting them. 27. Any person who keeps or conducts any bowling-alley skittle-ground or place for wrestling or permits or suffers any game or pastime to be had or conducted in such alley ground or place shall register the house dwelling tent or other premises wherein or connected with which it is intended to keep conduct permit or suffer any such game or pastime at the office of the local authority in or for the place where such house dwelling tent or other premises are situate, and if there be not any local authority within the distance. of ten miles from such house tent dwelling or other premises then with the justice resident (if any there be within ten miles) nearest to such house dwelling tent or other premises; and any person offending against this provision shall forfeit and pay a penalty not exceeding ten pounds. 28. Any person who refuses or needlessly delays to admit any justice or constable whether by day or night into any such bowlingalley skittle-ground place for wrestling house dwelling tent or premises as aforesaid or into any public ball or assembly room where payment is received for admission or does not close the same respectively at the hours and times appointed by any local authority shall forfeit a penalty not exceeding twenty pounds, and for any second offence besides such penalty be struck off the register; and every person struck off the register as herein before provided shall be and be considered as an unregistered person. 29. If any person allow in any tent dwelling house or other freshment houses premises wherein liquors provisions or refreshments are sold or disnot properly con- posed of any drunkenness or other disorderly conduct or suffer any gaming whatsoever therein or suffer prostitutes or persons of notoriously bad character to be assembled therein, such person shall forfeit a penalty not exceeding twenty pounds for the first offence and if registered shall have his house premises tent or dwelling struck off such register; and for any second offence besides the penalties herein provided for the first offence shall be imprisoned for any term not exceeding three months. Sunday to be duly observed and trade on that day prevented. 30. The local authorities shall cause Sunday to be duly observed by all persons within their jurisdiction, and shall not permit or thereto) is not, during a sitting of a board, a public place within the meaning of this section.-Taylor v. Phelan, 6 W. W. & a'B. (L.), 242; N.C., 59. The case of Swan v. McLellan, 2 W. W. & a'B. (L.), 6, so far as it is inconsistent with this decision, is overruled. A person using obscene language when on his own property cannot be convicted under this section of using obscene language in a public place, on the complaint of a person who has gone into a public road to listen.—In re Pinnock, ex parte Burton, A.R., 3 May 1864. A room at the back of the bar of an inn, with a door opening directly into a street, is not a public place. Distinction between a public place and a place of public resort.-Morgan v. Smallman, 5 A.J.R., 165. (a) A summons under this section before justices for using abusive language "whereby a breach of the peace might have been occasioned (no breach having occurred)" discloses no offence.—Clarson v. Blair, 3 V.R. (L.), 202. suffer any house shop store or other place to be open on that day for 28 VICTORIA, the purpose of trade or dealing; and any person who trades or deals No. 265. or keeps open any house shop store or other place (except as herein- 29 Car. II. c. 7. after provided) for the purpose of trading or dealing on Sunday shall on conviction forfeit a penalty of not less than five pounds nor more than ten pounds. Provided that nothing herein contained shall extend to apothecaries and chemists at any time of the day nor to 34 Geo. III. c. 61. butchers bakers pastrycooks or confectioners until the hour of nine in the forenoon and between the hours of one and six in the afternoon, nor to any other trade or occupation that may by any Act passed or hereafter to be passed have any special provision made therein upon the subject of trading on Sunday and so long as the persons affected thereby adhere to the provisions of such Act. Any person who is found engaged at shooting at any pigeon match or for pleasure sport or profit of any kind whatever on Sunday, or who is found carrying fire-arms on that day (except as hereinafter provided), and against whom proceedings for such offence shall be taken within ten days next after the time when the offence was committed, shall on conviction before any justice forfeit and pay a penalty of not more than five pounds nor less than forty shillings; but this provision shall not extend to travellers bona fide carrying fire-arms for the protection of their lives and property or the property of their employers on the public roads, or to constables and other persons carrying fire-arms for lawful purposes. 31. If any person establish commence or be a partner or other- Lotteries diswise beneficially interested in any lottery or any scheme by which allowed. prizes whether of money or of any other matter or thing are gained drawn for thrown or competed for by lot dice or any other mode of chance, or sell or dispose of any tickets or other means by which permission or authority is gained or given to any person to throw for compete or have any interest in any such lottery or scheme, or if such person under any pretence or by means of any device sell or dispose of or endeavor to sell or dispose of any lands goods wares or merchandise by means of any game either of skill or chance, every such person being duly convicted thereof shall forfeit and pay a penalty not exceeding two hundred pounds; and for any second offence besides such penalty shall be liable to imprisonment for any term not exceeding six months.) Neither this provision nor the provisions of any other Act for the prevention of lotteries little-goes and unlawful games shall apply to the distribution of any property amongst the owners thereof nor to any raffle for any work purely of art of which a notice having the name and address of the person intending to hold the same subscribed thereto has been given to the Attorney-General, if such Attorney-General do not within one week after such notice prohibit such raffle by notice sent by post or in any other manner according to the address so subscribed by such sum of two pounds two shillings sterling, for one share, No. in Mr. Hugh Peck's grand distribution of freehold properties," the contract was illegal.-McGregor v. Peck, A.R., 1 April 1869. (c) As to penalty on persons managing or conducting lotteries, see 36 Vict. No. 424 s. 2, "Police Offences (Gaming)," post, p. 2097. 28 VICTORIA, person, nor to any raffle of a private nature upon which point the justice before whom any case may be brought shall decide." No. 265. Summary jurisdiction given to illegally detained. 32. Upon complaint made to any justice of the peace by any justices in cases person claiming to be entitled to the property or possession of any of property being goods(a) which are detained by any other person within the jurisdiction of such justice the value of which shall not be greater than fifty pounds, such justice may summon the person complained of and enquire into the title thereto or to the possession thereof; and if it appear to the justice that such goods have been detained without just cause after due notice of the claim made by the person complaining or that the person detaining such goods has a lien or right to detain the same by way of security for payment of money on the performance of any act by the owner thereof, such justice may order the goods to be delivered to the owner thereof either absolutely or upon tender of the amount appearing to be due by such owner (which amount the justice is hereby authorised to determine) or upon performance or upon tender and refusal of the performance of the act for the performance whereof such goods are detained as security, or if such act cannot be performed then upon tender of amends for the non-performance thereof (the nature or amount of which amends. the justice is hereby authorised to determine); and every person who neglects or refuses to deliver up the goods according to such order shall forfeit to the party aggrieved the full value of such goods not greater than the sum of fifty pounds such value to be determined by the justice. And such justice may order and adjudge any reasonable costs to either party as such justice shall see fit such costs to be recovered as is provided by law in reference to any costs awarded upon any decision given under the summary jurisdiction of justices. Provided that no such order shall bar any person from recovering possession of the goods or money so delivered or forfeited by suit or action at law from the person to whose possession such goods or money may come by virtue of such order so that such action be commenced within six months next after such order shall be made. Breach of any provision of 33. Any person committing any act against the provisions Parts I and II. contained in this or the preceding Part of this Act or refusing or neglecting to comply with any directions contained therein respectively or any rule or regulation made under the said provisions by any local authority shall be deemed to have committed an offence of this Act deemed an offence. (a) Documents bearing upon a person's title to land are not "goods" within this section.Headland v. Charlesworth, 1 A.J.R., 89. Nor are the books of a mining company.Zumstein v. Frey, 3 V.R. (L.), 212; 3 A.J.R., 108. This section gives more than a "limited trover" jurisdiction as between the assignor and assignee, or mortgagor and mortgagee. The legislature has directly contemplated giving magistrates a wider jurisdiction, even in such difficult matters of adjudication as might arise under this section, and has taken precaution against possible illexercise of the power by expressly enacting that, alongside of the special jurisdiction thus given to magistrates, there should co-exist the power to sue in the Supreme Court.-The Queen v. Barnard, A.R., 28 Nov. 1867. A. sued B. for the illegal detention of a piano. B. proved that he had bought it from C. A. then proved that he had only let the piano to C. on the terms of his paying £10 quarterly, and that C. was to have no interest in the piano till a sum of £38 had been paid. The whole of the £38 was not paid. A. was entitled to recover — Wilkie v. Brew, N.C., 16. The justices have jurisdiction in cases other than those between assignor and assignee.Longford v. Meldrum, 4 A.J.R., 21. (b) A demand for the goods is a "notice"; and the justices must be satisfied that "due notice" has been given.-Longford v. Meldrum, ubi sup. (c) The tender must be made in money. A tender of the amount by cheque is insufficient. -Reg. v. Marks, 5 A.J.R., 71. No. 265. against this or the preceding Part of this Act as the case may be; 28 VICTORIA, and when no specific penalty is provided for any such act neglect or refusal, such person shall on conviction pay a penalty not exceeding twenty pounds. liable where servants have acted orders. 34. In any case where under this or the preceding Part of this Masters made Act any offence is created and it appears to the justice before whom the complaint or information against any person for the commission under their of any such offence may be heard that the person committing the same has acted only under the orders or by the sanction of any master or employer of any such person and that such master or employer is in fact the offending party either solely or as well as such person so rendered liable, such justice may summon and proceed against such master or employer as if the information or complaint had originally been laid or made against any such master or employer and may either discharge such person so first informed or complained against or may otherwise proceed against both as such justice may see fit. PART III.-VAGRANCY. 35. Any person who shall commit any of the next following Idle and disoroffences shall be deemed an idle and disorderly person within the derly persons. meaning of this Part of this Act and shall be liable to the punish ment next hereinafter mentioned : (1.) Any person having no visible lawful means or insufficient (II.) Any person, not being an aboriginal native or the child (III.) Any habitual drunkard having been thrice convicted of (v.) The occupier of any house which is frequented(a) by (a) A woman may "frequent" a house, within the meaning of this sub-section, although she may happen to live there.-Leister v. Short, 1 A.J.R., 151. (b) An information for being "the occupier of a house frequented by reputed thieves, or persons who have no visible lawful means of support," discloses an offence within the meaning of this section, and is supported by evidence that the defendant is the occupier of a house fre 28 VICTORIA, No. 265. Rogues and vagabonds. house in company with such reputed thieves or persons (v.) Any person wandering abroad or placing himself in any (VII.) Any person having on or about his person without lawful excuse (the proof of which excuse shall be on such person) any deleterious drug or any article of disguise: shall be liable to imprisonment in any gaol for any time not exceeding twelve months with or without hard labor. 36. Any person who shall commit any of the next following offences shall be deemed a rogue and vagabond within the meaning of this Part and be liable to the punishment next hereinafter specified : (1.) Any person committing any of the offences hereinbefore (II.) Any person soliciting gathering or collecting alms sub- (IV.) Any person wilfully exposing to view in any street road (v.) Any person wilfully and obscenely exposing his person in any street road or public highway or in the view thereof or in any place of public resort :(a) quented by prostitutes. A prostitute, as such, is a person having no visible lawful means of support. A wife may be "occupier" of such a house at the same time her husband is also "occupier" of the same house, and may be separately convicted at the same time with him of being such "occupier;" the word " occupier" being here used simply as keeper" in the English statutes, and including any person assisting in the management" of such a house.— Reg. v. Sayers, 4 W. W. & a'B. (L.), 46. (a) The provisions of section 296 of 27 Vict. No. 233, "Criminal Law and Practice," ante, p. 534, are applied to convictions under this subsection by 35 Vict. No. 399 s. 33, “ Criminal Law and Practice (Amendment 1871)," ante, p. 574. Where there is a doubt whether the act is wilful or accidental, evidence is rightly admitted of conduct at other times to rebut a defence.Vernon v. Mollison, 5 A.J.R., 123. One justice (not being a police magistrate) adjudicating alone on a case under this section has no power under 35 Vict. No. 399 s. 33, "Criminal Law and Practice (Amendment 1871)," on conviction to inflict a whipping.—Purcell v. Nimmo, 3 V.R. (L.), 233. |