Arms public house. The place where these articles were exposed for sale was composed as follows. The main support consisted of poles or pieces of wood which had formerly been used as a stall in the market place, but had been let into the ground in The Crofters' Arms Yard, and for some time used as a stall there. This stall consisted of the upright posts fixed in the ground, of cross pieces of wood on which the counter-boards were supported, and a wooden roof projecting a considerable distance beyond the counter-boards on each side, so as to shelter the seller on one side and the customers on the other. The seller was protected behind by a wooden framework. Subsequently to the conviction of a man named John Beesley, under a similar charge, for exposing goods for sale on a similar stall, the appellant's stall along with others had undergone the following alterations, viz., from the floor up to the level of the counter-boards, at one end, slabs of wood or undressed-boards had been nailed to the posts; from these boards up to the square of the structure a loose window frame had been placed at one end, and a fixed window frame from that up to the roof; adjoining the windows and slabs there was a moveable shutter or door, giving access to the back of the counter-board where the seller stood; the other end of the structure and the side behind where the seller stood were entirely boarded up. In front, from the counter-board to the ground, slabs or boards were nailed to the upright posts, and from the counter-board to the roof there was a loose shutter extending to the whole length (except the breadth of a door at one end), which was removed during business hours. The door at the end of the loose shutter was upon hinges, and 1865. POPE V. WHALLEY. 1865. POPE V. WHALLEY. had a lock upon it, which could be locked or unlocked on the outside. The place inside where the seller stood was about 2 feet 6 inches broad. There was in that breadth a floor made of boards where the seller stood, but under the counter-boards and in front where the buyer stood the surface of the ground was bare and uncovered, save by the counter-boards and the roof. The structures of the appellant and others were placed side by side in a row, and were set back to back, so that the fronts of the stalls faced each other, affording a double space for buyers, sheltered in some measure from wet by the projecting roofs meeting each other. The moveable glass window and the loose shutters had no hinges, but were so made that they could be taken down, and when put up again fastened inside. The dimensions of each of those structures were as follows: the height from the ground to the square was 6 feet 6 inches, and from the ground to the centre of the roof was 9 feet 6 inches; the window frame at the end was nearly 4 feet wide; the breadth of the structure was about 6 feet 10 inches, including the projection of the roof on each side of the counter-boards where the seller and buyer stood; the length of the structure was about 13 feet the space between two stalls fronting each other was entirely open at all times, and was common to the customers of both stalls. There were shelves in the appellant's structure, and it was proved that some of the structures of the same kind and in the same yard were papered, but no evidence of being papered was given as regarded that of the appellant. The structures did not adjoin, neither were they in any manner connected with, any house or other building of a substantial character, and they were of a slight and unsubstantial character, and were not proof against the weather. The cost of the structure was from 47. to 5l. The structure was made at the expense of the landlady of the public house, who let each stall by the week; the appellant having taken her stall from her by the week at the rent of 2s. a week. The other occupants of those structures were not and never had been rated to the poor and highway rates in respect of them. The appellant and other holders of similar structures had access to them whenever they thought fit. They exposed goods for sale there every day in the week. The customers as a rule stood in front and outside the structure when they made their purchases, but evidence was given that they could, if they chose, go into the narrow space of 2 feet 6 inches where sellers stood. The stall holders generally removed their goods at night, though some evidence was given that in some instances goods were left there all night, but the witnesses would not state that the structures were such as would render it safe to leave anything valuable all night. As regarded the appellant, it was not proved that any person went inside her structure to purchase, or that she ever left goods on the premises at night; neither was the contrary proved. It was contended on the part of the appellant that the place in question was her own shop within the meaning of the exception in The Markets and Fairs Clauses Act, 1847, sect. 13. The justices were of opinion however that this was not so. First. Because of its want of a stable and substantial character. Secondly. Because it was a mere alteration of what had undoubtedly been a stall, in order to evade the provisions of that Act. Thirdly. B. & S. VOL. VI. Y 1865. POPE V. WHALLEY. 1865. POPE v. WHALLEY. Because, though it was possible for a customer to go inside for the purpose of buying, yet it was obvious, from the very narrow space behind the counter-boards (about 30 inches in breadth), and from the fact of the shutter in front being regularly removed for the purpose of selling goods, that such was never intended, and in practice could not be the case, and that the user of this structure must necessarily be the same as of a stall where the seller stands inside and the buyer outside. Fourthly. Because the structure was not of such a nature as either to protect goods against rain or render it safe to have goods of value on the premises during the night without their being otherwise protected. And it also appearing to the justices that the evidence brought the case within the operation of sect. 13 of The Markets and Fairs Clauses Act, 1847, they gave their determination against the appellant, and the question was, were they right in so deciding? The question turned on The Markets and Fairs Clauses Act, 1847, 10 & 11 Vict. c. 14. Sect. 13. "After the market place is open for public use every person other than a licensed hawker who shall sell or expose for sale in any place within the prescribed limits, except in his own dwelling place or shop, any articles in respect of which tolls are by the special Act authorized to be taken in the market, shall for every such offence be liable to a penalty not exceeding 40s." Keane (Cottingham with him), for the appellant.The question is whether this particular structure is a "shop" within the meaning of The Markets and Fairs Clauses Act, 1847, 10 & 11 Vict. c. 14. s. 13. The evidence shews that it was the appellant's own shop. The form of the structure, its being covered up, its being locked at night, goods being stored in it, its being exposed to the public, and whether they stood on the inside or the outside, are the affair of the proprietor alone. [He referred to Com. Dig. Market, (F3), Mosley v. Walker (a), The Mayor &c. of Macclesfield v. Chapman (b), The Llandaff &c. Market Company, appts., Lyndon, respt. (c), Wiltshire v. Baker (d), and Wiltshire, appt., Willett, respt. (e), all three decided on The Llandaff and Canton District Markets Act, 1858, 21 & 22 Vict. c. cv. s. 25.] Blackburn J. I do not think the sense of the word "shop" in other statutes bears much on this matter. [He cited Rex v. The Inhabitants of Caversham (ƒ), Reg. v. Hill (g), The Mayor of Yarmouth v. Groom (h), Reg. v. Sanders (i), Reg. v. Carter (j).] There are also several cases decided on the registration clauses of The Reform Act, 2 W. 4. c. 45. s. 27., and of The Registration of Voters Act, 6 & 7 Vict. c. 18., as to the meaning of the word "shop"; Watson v. Cotton (k) is one. [Mellor J. They will not help us much.] Field (Le Breton with him), for the respondent.-The question turns on the construction of a modern Act of Parliament, not on what may have been the meaning of the word "shop" some hundred years ago. At common law selling in a private shop was no infringement of a market; The Mayor &c. of Macclesfield (a) 7 B. & C. 40. (e) 11 Id. 240. (g) 2 Moo. & R. 458. (b) 12 M. & W. 18. (j) 1 Car. & K. 173. 1865. POPE V. WHALLEY. |