8. Hawking

without license, &c.

What an offence within act.

Form of information.

Trading contrary to license.

Refusing to produce license.

town, or to other men's houses, and travelling either on foot or with horse or horses, either by opening a room or shop, and exposing to sale any goods, wares, or merchandize by retail in any town, parish, or place, (such person not being a householder there, or the same not being an usual place of his or her abode), or by any other means or device to vend or sell, either by himself or herself, or by any auctioneer (whether licensed or not), broker, appraiser, agent, servant, or other person on ha or her behalf, any goods, wares, or merchandize whatsoever, by outcry, knocking down of hammer, candle, lot, parcel, or any other mode of sale at auction, or whereby the best or highest bidder is or shall be deemed to be the purchaser; and that every person and persons so vending or selling contrary to such prohibition as last aforesaid, shall forfeit and pay for every offence the sum of 50%., to be recovered and applied as hereinafter mentioned." See s. 24, post, 491.

A licensed hawker may sell by retail in a hired room, where he is no a householder, provided such selling be not by outcry, &c., or some mode of sale at auction. (Allen v. Sparkhall, 1 B. & Ald. 100). Et per Lond Ellenborough, C. J., S. C.—“ Ón looking at the 7th sect., I think that the words by outery, &c., or any other mode of sale at auction,' vern the meaning of the whole. If the clause had stopped at the word 'any other means or device,' an argument might have been raised, but the general scope is laboriously confined to outcry and sale at aurtion." Et per Abbott, J.-"The clause is prohibitory, but the prohibition is confined to persons of a certain description. A hawker is le description of person, a person who sells by retail is another, and neither must sell by auction." (See 1 Law Mag. 340).

As to what auctioneers and persons are hawkers within the statute, and subject to the penalties, &c., see ante, 480, 481.

It is not necessary in an information for penalties, under this 7th section, to state that the defendant sold by auction, &c., by opening a reem or shop, and exposing to sale his goods, &c., by retail. (Attorney-Ge neral v. Woolhouse, 1 Y. & J. 463; 13 Price, 65, S. C.).

VIII. Hawking contrary to, or without a License, or refusing to produce it.

By 50 Geo. III. c. 41, s. 17. "If any such hawker, pedlar, or petty chapman, or other trading person so travelling as aforesaid, [ante, 481, shall from and after the said 1st day of August [1810], trade as afore said, without, or contrary to, or otherwise than as shall be allowed by such license, such person shall, for each and every such offence, forfe the sum of 10., to be recovered and applied as hereinafter mentioned, and that if any person trading under or by virtue of any license to him or her granted as aforesaid, upon demand made by any person persons authorized or appointed to demand any such license by the commissioners for licensing hawkers, pedlars, and petty chapmen for the time being, or any two of them, under their hands and seals, and upon producing or shewing such authority or appointment to such person so trading as last aforesaid, or upon demand made by any justice of the peace, mayor, constable, or other officer of the peace of any county, riding, division, town corporate, borough, or place, where he or she shal so trade, or by any officer of the customs or excise, or by any person to whom such hawker, pedlar, or petty chapman shall offer any goods to sale, shall refuse to produce and shew his or her license for so trading a3 aforesaid, or shall not have his or her license ready to produce and shew unto such person authorized or appointed as last aforesaid, or unto such justice of the peace, mayor, constable, or other officer of the customs or excise, that then the person so refusing, or not having his or her license

ready to produce and shew as aforesaid, shall forfeit 107., to be recovered and applied as hereinafter mentioned, and for nonpayment thereof shall suffer as a common vagrant, and be committed to the house of correction." (See Vagrants, Vol. VI.)

8. Hawking

without license, &c.

50 Geo. 3, c. 41.

Persons trading

without a license, or refusing to prodetained and taken before a justice.

duce it, may be

Sect. 20. "It shall be lawful for any person or persons whatsoever to seize and detain any such hawker, pedlar, petty chapman, or other trading person as aforesaid, who shall be found trading without a license contrary to this act, or who being found trading shall refuse or neglect to produce to such person or persons a license according to this act, after being required so to do for a reasonable time, in order to give notice to a Constable, headborough, tithingman, or other peace officer or officers, who are hereby required to carry such persons so seized, unless they shall in the mean time produce their respective licenses, before some one of his Majesty's justices of the peace of the county or place where such offence or offences shall be committed, which said justice of the peace is hereby authorized and strictly required to examine into the fact or facts charged; and upon the proof, either by confession of the party offend- Trading without ing, or by the oath of one or more credible witness or witnesses, (which license. the said justice is hereby empowered to administer), that the person so brought before him had so traded as aforesaid, and no such license being produced by such offender before the said justice, to convict the offender so trading without a license, and thereupon it shall be lawful for such justice, and he is hereby required by warrant under his hand and seal, to cause the said sum of 401.* to be levied by distress and sale of the goods, wares, or merchandize of such offender or offenders, or of the goods which such offender or offenders shall be found trading as aforesaid, rendering the overplus, if any be, to the owner or owners thereof, after deducting the reasonable charges for making such distress, and out of the said sale to pay the said respective penalties and forfeitures aforesaid, and in the mean time to commit such offender to the common gaol or house of correction for the county, riding, division, city, liberty, town, or place where the said offence shall be committed, there to remain until the said penalties and forfeitures, and the reasonable charges of taking the said distress, shall be levied by such distress and sale as aforesaid, or until the same shall be otherwise paid or satisfied by such offender (a).”

(a) In the Law Magazine, Vol. I. p.338, will be found the following useful observations on these sections:"The fair meaning of the word 'shall trade without a license,' in the 17th section, appears to be shall trade without having obtained a license;' but there is nothing in the statute to confime the operation of the words in that section to such persons only. There seerns no reason why such trading per sons as have obtained a license, but travel without it, should not be within this clause of the section. They may certainly be brought within the clause immediately following, for refusing to produce, or for not having his or her license ready to produce, to persons authorized by the act to demand a sight of it. It seems, also, that if an unlicensed hawker sell goods which, even if he were licensed, it would not be lawful for him to sell, he is still liable to be convicted for trading without a Lense. Thus, where the defendant, George M Gill, was convicted under the

Hawkers' Act, for travelling from house
to house, and exposing to sale divers
parcels of tea, without any license, it
was contended that the defendant ought
to have been convicted under 12 Geo.
III. c. 46, s. 6, which prohibits the sell-
ing of tea, except under certain regula-
tions; but the Court were of a different
opinion. They said, that 50 Geo. III.
c. 41, was passed to protect domiciled
tradesmen; the other statute, to assist
the collection of duties: that the effect
of the latter was not to destroy the pro-
hibition contained in the former, but
that the two provisions were consistent,
and might stand together; that the first
imposed a penalty upon persons trading
at all, as hawkers, without a license; the
second imposed a penalty upon the sale
of tea by hawkers, even with a license;
and, therefore, that a person who ex-
posed tea to sale as a hawker, and had
no license, offended against both the
above-mentioned provisions, and was
liable for a penalty for each breach of
the law. There is much obscurity in

Sic. See note

infra.

Sic. Query, whe

ther the word "with," is not

omitted.

8. Hawking without license, &c.

What an offence within act.

With respect to what is a hawking, and who are hawkers, within the act, and bound to take out a license, see ante, 480, 481; as to who are exempt therefrom, see ante, 482 to 484.

A person exposing to sale and selling tea as a hawker, without a license, is liable to the penalty, although, even with a license, he would be liable to a penalty for selling tea in an unentered place. (R. v. M'Gill, 2 B. & C. 142; 3 D. & R. 337, S. C. et per curiam). The que tion principally agitated in this case was, whether a person exposingta to sale as a hawker, was liable to the penalty imposed by the 50 Geo. IIL c. 41, upon persons trading as hawkers without a license. There was also another point which might have been raised, and upon which the court delivered an opinion in R. v. Websdell, viz. whether the persity of 107. was that which ought to have been imposed. The court then thought 107. the right penalty, and that opinion has been confirmed by a further consideration of the subject. As to the first point, it was argued, that inasmuch as one act of Parliament had made it illegal to sell tea in any but an entered place, and another had provided that hawker should sell tea, that, therefore, a hawker was not liable to a pe nalty for exposing it to sale without a hawker's license. If the Geo. III. c. 41, had been the first act upon the subject, and no pensiy had previously existed for trading as a hawker without a license, there might, perhaps, have been some doubt, whether it extended to any ca in which a license would not have legalized the sale; but looking at the whole series of enactments relating to hawkers and pedlars, and taking into consideration the time when they were first prevented from selli tea, it will be plain that they are still liable to a penalty for selling as hawkers without a license. The first enactment respecting them the 8 & 9 Will. III. c. 25, which is nearly the same as the 9&10 Will. III. c. 27, and contains two clauses material as to the amount of the penalty to be imposed. The 17th section of the 50 Geo. III. c. 41, has this provision, "that if any such hawker shall trade as afores without, or contrary to, or otherwise than as shall be allowed by such license, such person shall, for every such offence, forfeit the sum of 10. Three terms are there introduced, without," "contrary to," or "other wise than as shall be allowed by," such license; and it will hereafter appear, that those terms were advisedly introduced to apply to tha descriptions of offences. Section 20 enacts, that any person may seize any such hawker found trading without a license, or who, being found trading, shall refuse to produce a license, and have him carried before magistrate, who is thereby authorized to convict the person so charge, and by warrant under seal to cause the said sum of 401. to be levie Now, that section does not expressly impose any penalty; and the 1 section, to which it apparently refers, has a penalty of 10., and 407. it is, therefore, fair to suppose, that the sum in the 20th sect should have been 107., and not 407., and that the latter sum was i serted by mistake; and an examination of the earlier statutes on tiis

this part of the statute. The 17th and
20th sections are in terms the same as
the 11th and 14th sections of the 9 & 10
Will. III. c. 27, and in both these acts
the same difficulty occurs, as to the im-
posing a penalty of 101. given by the
one section, or of 401. given by the
other, for trading without a license, &c.
In practice, convictions are always for
10.; and in R. v. Websdell, it was
decided, that a conviction in that pe-
nalty was proper. It is fair to suppose,
that the sum in the 20th section should
have been 107., and not 407., and that

66

the latter sum was inserted by mis take.

"It may also be mentioned, that, un less we suppose that the sum of 46% has been inserted by mistake for 19... the statute is inconsistent with itself, a it enacts that the said sum of 401. shall be recovered before a magistrate, whereas the 24th and 25th sections enact, that penalties above 201, incurred under this act, shall be recovered in any court of record at Westminster, and penal ties, below that sum, before a justice of the peace."

subject will shew clearly that such was the fact. The 19th section im-
poses a penalty of 401. upon any person trading with a borrowed license,
or one that does not contain his real name. The 8 & 9 Will. III. and
9 and 10 Will. III. c. 27, had not any such clause; the 3rd section of
the latter imposed a penalty of 127. upon hawkers trading" without,"
or "contrary to," such license as the 1st section requires them to take.
The 5th section imposes a penalty of 50l., for travelling with a forged
license; and the 8th section authorizes the apprehension of hawkers
travelling without a license, contrary to the act, and directs that they
shall be taken before a magistrate, who, if the offence be proved, shall
convict them, and forthwith direct the said sum of 127. to be levied by
distress, &c. The said sum of 121. there manifestly refers to the penalty
imposed by the third section, that being the only sum of 127. which had
been before mentioned; and the expressions "without a license," and
"contrary to the act," in the 8th section, are applicable to the trading
without or contrary to the license mentioned in the 3rd section. The
next act material to be considered on this point is the 25 Geo. III. c. 78;
but in the mean time, some alteration was made in the law as to the sale
of tea and cambrics. The 10 Geo. I. c. 10, s. 14, provided, that tea
should not be sold except in an entered place. By that provision the
right to sell it was made local; the 9 Geo. II. c. 35, s. 20, enacted, that
it should not be sold by any hawker and pedlar. The object of the sta-
tutes before cited, more particularly applying to hawkers and pedlars,
appears to have been to protect domiciled tradesmen; of the two latter,
to assist the collection of duties. The effect of them is, not to destroy
the former prohibition against trading as a hawker without a license,
But to add a cumulative penalty for hawking tea, even with a license;
for the two provisions are consistent, and may well stand together. The
first imposes a penalty upon persons trading at all as hawkers without
license; the second imposes a penalty upon the sale of tea by hawkers,
even with a license; and, therefore, a person who exposes tea to sale as
a hawker, and has no license, offends against both the above-mentioned
provisions, and is liable to a penalty for each breach of the law. The
7 Geo. III. c. 43, s. 7, made cambrics found in the possession of any
hawker or pedlar liable to forfeiture. Then came the 25 Geo. III. c. 78,
as to hawkers and pedlars, the 4th section of which resembles the 3rd of
the 9 & 10 Will. III. c. 27, but has this difference-the penalty was
before confined to persons trading "without" or contrary to" the
license; this enactment has the additional words "or otherwise than as
shall be allowed by" such license. That expression could only be ap-
plicable to those cases in which a license would not legalize the trading.
The 25 Geo. III. c. 78, s. 4, alters the penalty from 12. to 107.; and be-
tween the 4th section, which corresponds to the 3rd section of the 9 &
10 Will. III., and the 7th section, which corresponds to the 8th section
of the former act, introduces, in sect. 6, a provision, that persons trading
With a borrowed license shall be liable to a penalty of 10%. In the 7th
section, which, as in the former act, refers to the first penalty of 10%.,
the expression "said sum of 10l." is retained. The 25 Geo. III. c. 78,
repealed by the 29 Geo. III. c. 26, which, however, contained most
of the same provisions. Thus, the 11th and 14th sections of the latter
correspond with the 4th and 7th of the former; the 13th section also of
the latter corresponds with the 6th section of the former, except as to
the amount of the penalty, which was raised from 107. to 40%.; and this
shews how the mistake in the 14th section arose. In the 25 Geo. III.
18, two penalties of 107. had been imposed in different sections pre-
eeding that in which the justice is directed to cause the said sum of 10l.
to be levied.

was

8. Hawking

without license, &c.

As to the amount of the penalty, it was held in that and in a prior case Amount of that a conviction in a penalty of 107. for trading without any license was penalty. correct. (And per Bayley, J., in R. v. Websdell, 2 B. & C. 136; 3 D. & R.

9. Hiring or lending licenses.

Hiring or lending license.

360, S. C.) "There is much obscurity in the 50 Geo. III. c. 41; nor is it
found there for the first time. It has existed from the passing of the 29
Geo. III. c. 26. The 11th and 14th sections of that act are in terms the
same as the 17th and 20th sections of the 50 Geo. III. c. 41; and in both
these acts the same difficulty occurs, as to imposing a penalty of 104. cr
40%. It has been contended, that a person trading without a license v
liable to the penalty of 401. imposed by the 20th section, and is n
within the 17th section, which imposes a penalty of 107. If that were
clear, the conviction in a penalty of 10l. would be bad; but the mean-
ing of the act should be quite plain, to induce us to come to such a con-
clusion; for if there be a doubt, we should adopt that construction
which will bear with the least hardship on the party convicted. In th
17th section there are three propositions:-If any such hawker shall
trade without, or contrary to, or otherwise than as shall be allowed by sach
license, he shall forfeit 10l." It does not say, such hawker "having ob-
tained a license,” and trading, &c. There are not, then, any words con
fining the operation of that section to a person having obtained a
license; and the fair meaning of the words, "shall trade without suck
license," appears to be, "shall trade without having obtained a license."
In R. v. Turner, this objection, if good, would have been decisive; y
it was never suggested, and in practice convictions are always for 10.
In the last edition of Burn's Justice, a form is given in which the pe
nalty is 107.; and that is worthy of consideration, although it cannot e
treated as an express authority. For these reasons, I think that the
words in the 17th section, "trading without such license," are not co-
fined to persons who have obtained a license, and travel without it. If
that be the right construction, then the only question is, whether the
23rd section exonerates the defendant from any penalty, or whether be
is exempted by the proviso in the 9 & 10 Will. III. c. 27, s. 9. If the
question had turned upon the 9 & 10 Will. III. c. 27, he would have
been within the exemption, for that authorizes the manufacturer of
goods to sell them in market towns, &c., or elsewhere.
That, however,
is not an empowering but an exempting clause; and the 29 Geo. Ill.
c. 26, which imposed a higher duty, contained the same prohibitory
clause as the 9 & 10 Will. III. That, being general, would have en-
tirely repealed the exemptions in the former act; but then a new pr
viso is introduced, differing essentially from that in 9 & 10 Will. III.
c. 27, for the words or elsewhere are omitted. A similar proviso was in-
troduced into the 50 Geo. III. c. 41; and it is manifest, that the wors
or elsewhere were omitted because the legislature thought them too larg
I am therefore of opinion, that, as the prohibition in the 50 Geo. III.
41, is general, and the exempting clause confined to marts, markets
fairs, cities, boroughs, towns corporate, and market towns, the defenda:
was not justified in selling the articles in question in a place not com
within that enumeration."

IX. Hiring or lending Licenses.

By 50 Geo. III. c. 41, s. 19, "In case any person shall let out, or hire, or lend any license to him or her granted as aforesaid, or shal trade with or under colour of any license granted unto any person whatsoever, or of any license in which his or her own real name shall not be inserted as the name of the person to whom the same is granted, the person letting out to hire or lending any such license, and the trading with or under colour of any license granted to any other person, or any license in which his or her own real name shall not be inserted, as the name of the person to whom the same is granted, shall each of them forfeit the sum of 401., to be recovered and applied as hereinafter mentioned; and in case any person shall be convicted or have judgment

person