MILES v. HUTCHINGS. 1903. Malicious chickens which had got into his wheat field and were scratching up the seed. The justices again convicted, and the conviction was again quashed on appeal. In Bryan v. Eaton (40 J. P. 213), in the same way, the appellant had set a trap on purpose to catch his neighbour's cat when trespassing on his premises. The cat was caught and killed in the trap. The justices again convicted, Damage Act, and the conviction was again quashed. And in the recent case 1861-Injury of Armstrong v. Mitchell (88 L. T. Rep. 870) it was held that the shooting at and wounding of a dog which was merely running across a field where pheasants were being driven was not a malicious act. Here, I submit, the question is not whether the appellant might have driven the dog away without shooting at him, but whether the shooting was with wicked intent or merely with the intention of protecting his master's property. No counsel appeared for the respondent. Lord ALVERSTONE, C.J.-This case is one of considerable importance, more especially as there has been lately more than one case of the kind before the Court, and it is therefore desirable that it should be more fully stated. It must go back to the magistrates, as they have not found sufficient to enable the Court to deal with the case. They say that it was stated on behalf of the appellant that he shot at the dog with the intention, not of killing it, but of merely driving it away; but then, when they come to deal with the case, they simply say that the appellant had no right to shoot the dog. They do not seem to have dealt at all with the point where there was a bona fide belief on the part of the appellant that in order to protect his master's property it was necessary to shoot the dog. In one of the cases cited by Mr. Cancellor-Daniel v. Janes (2 C. P. Div. 351, at p. 353)-Lord Coleridge, C.J., said that sect. 41 pointed to "a wicked crime, the unlawfully and maliciously killing or maiming the animals referred to simply for the purpose of indulging a cruel disposition, and not an act done under an impression, right or wrong, that the party is justified in protecting his premises from a trespass by such means." Here the act was said to be done by the appellant for the protection of the property of his master; and, while feeling all respect for Lord Coleridge, I cannot help expressing my opinion that the real test is whether the appellant was bona fide doing an act which he thought was necessary for the protection of his master's property. If that was so, the allegation that he was acting unlawfully and with malice would be negatived. If, however, the act was unnecessary and not for the protection of his master's property, the conclusion to be drawn might be different. It is therefore important that the facts should be clearly stated on this point. WILLS, J.-I am of the same opinion. I also agree with the judgment of Lord Coleridge in the case before him, but as a general proposition I think the statement in his judgment as to the right of a person to do anything of this kind without bringing himself within the section is too broad. I do not think it is to dogIntention Bona fide belief in necessity for act-Protection of master's property24 & 25 Vict.. c. 97, s. 41. MILES v. HUTCHINGS. 1903. Malicious Damage Act, enough to do it under the impression, right or wrong, that he is justified in protecting his premises from a trespass by such means, if the man knew that something else could be done which would be effectual for the protecting of his property without doing injury to the animal. CHANNELL, J.-I agree that the case must go back to the 1861-Injury justices. I think the malicious intention is negatived if the man wrongly but honestly thought it was necessary to shoot the dog Intention- in order to drive it away. to dog Bonâ fide belief in necessity for Case remitted. Solicitors for the appellant, Prior, Church, and Adams, for act-Protec- Percy W. Snelling, Winchester. tion of master's property 24 & 25 Vict. c. 97, s. 41. KING'S BENCH DIVISION. Tuesday, June 30, 1903. (Before Lord ALVERSTONE, C.J., WILLS and CHANNELL, JJ.) ASHLEY AND SMITH LIMITED (apps.) v. HAWKE (resp.) (a) Place Betting-houses-Advertisement-Reasonable construction In order that the publication of an advertisement may be an offence CASE ASE stated by one of the aldermen of the city of London, being a Court of summary jurisdiction. On the 4th day of November, 1902, an informotion was preferred by John Hawke (hereinafter called the respondent) (a) Reported by ANDREW STRAHAN, Esq., Barrister-at-Law. SMITH LIMITED V. under sect. 7 of the Betting Act, 1853, against Ashley and Ashley and Smith Limited (hereinafter called the appellants), for that they on the 27th day of May, 1902, did unlawfully cause certain advertisements to be published whereby it was made to appear that certain premises, known as Nos. 150 and 152, Fleet-street, London, were opened, kept, and used by Topping and Spindler for the purpose of making bets and wagers, contrary to the Bettingstatute in such cases made and provided. Betting Act, 1853 (16 & 17 Vict. c. 119): Sect. 1. No house, office, room, or other place shall be opened, kept, or used for the purpose of the owner, occupier, or keeper thereof, or any person using the same, or any person procured or employed by or acting for or on behalf of such owner, occupier, or keeper or person using the same, or of any person having the care or management, or in any manner conducting the business thereof betting with persons resorting thereto; or for the purpose of any money or valuable thing being received by or on behalf of such owner, occupier, keeper, or person as aforesaid as or for the consideration for any assurance, undertaking, promise, or agreement, express or implied, to pay or give thereafter any money or valuable thing on any event or contingency of or relating to any horse race or other race, fight, game, sport, or exercise, or as or for the consideration for securing the paying or giving by some other person of any money or valuable thing on any such event or contingency as aforesaid; and every house, office, room, or other place opened, kept, or used for the purposes aforesaid or any of them is hereby declared to be a common nuisance and contrary to law. Sect. 7. Any person exhibiting or publishing or causing to be exhibited or published any postcard, handbill, card, writing, sign, or advertisement whereby it shall be made to appear that any house, office, room, or place is open, kept, or used for the purpose of making bets or wagers in manner aforesaid or for the purpose of exhibiting lists for betting or with intent to induce any person to resort to such house, office, room, or place for the purpose of making bets or wagers in manner aforesaid, or any person who, on behalf of the owner or occupier of any such house, office, room, or place or person using the same, shall invite other persons to resort thereto for the purpose of making bets or wagers in manner aforesaid, shall upon summary conviction thereof before two justices of the peace forfeit and pay a sum not exceeding thirty pounds. The above-mentioned information was heard by the alderman on the 17th day of November and the 1st day of December, 1902, and on the application of the respondent with the consent of the appellants the summons was amended as follows: For that you on the 27th day of May, 1902, in the City did unlawfully cause certain advertisements to be published whereby it was made to appear that an office and place was opened, kept, and used by Topping and Spindler for the purpose of making bets or wagers in manner prohibited by the Betting Act, 1853, contrary, &c. At the hearing of this information the following were found to be proved as facts: The appellants were a company limited by shares, and the company was incorporated under the Companies Acts on the 28th day of February, 1901, as proprietors, printers, and publishers of a newspaper entitled the Sportsman, with registered offices at Nos. 139 and 140, Fleet-street, at which address the newspaper was published. The respondent was the hon. secretary of the National AntiGambling League, and the prosecution was instituted at the instance of that league. A copy of the issue of the Sportsman of the 27th day of May, HAWKE. 1903. Advertisement -Bettinghouse-Place used for bettingUnlawful betting must be meant Betting Act, 1853 (16 & 17 Vict. c. ss. 1, 7. SMITH ASHLEY AND 1902, purchased by a clerk to the solicitors of the Anti-Gambling League, was put in evidence. It contained advertisements appearing in conspicuous positions on the front page and also on the second page. These advertisements were worded in the LIMITED บ. HAWKE. 1903. same manner, and were in the following terms: Topping and Spindler, Flushing, Holland. The Derby, Ascot Stakes, Royal Hunt Betting- Cup, Northumberland Plate, and the Continental Sportsman. Also Year Book and Advertisement Ready Reckoner free on receipt of address. Telegraphic instructions can be sent to London. All letters to be addressed Topping and Spindler, Flushing, Holland. Post-cards 1d. Postage 24d. -Bettinghouse Place used for bettingUnlawful betting must be meant On an application being made on the 30th day of May, 1902, to Topping and Spindler by H. A. Brown certain documents (which were annexed to the case) were received by him. They Betting Act, were posted to him in an envelope bearing an English 1d. stamp 1853 (16 & 17 and a London postmark, and on the back of the envelope were Vict. c. 119), stamped the words: "If not delivered, to be returned to 150, Fleet-street, London." ss. 1, 7. A Post Office Order for 3l. was sent to Topping and Spindler by H. A. Brown, an acknowledgment being received by him from them, and on the 6th day of June, 1902, a telegram, addressed to "Grumble, London," was sent by H. A. Brown for the purpose of making of making a bet or wager of 10s. each way on a horse named Glass Jug, running or about to run a race then pending in England. Since the year 1889 "Grumble, London" had been the registered telegraphic address of R. Topping, a member of the firm of Topping and Spindler at No. 150, Fleet-street, up to the 3rd day of August, 1901, when the address was changed to No. 152, Fleet-street. Further telegrams were addressed to "Grumble, London," on the 7th, 10th, 11th, 12th, and 15th days of June, 1902, by H. A. Brown for the purpose of making bets or wagers on events relating to horse races then pending in England, and acknowledgments of these were duly received by him from Topping and Spindler. On the 16th day of June, 1902, a letter was sent to Topping and Spindler at Flushing by H. A. Brown, inclosing six vouchers and a credit note, and in reply an account was received from them showing the balance due from Topping and Spindler in respect of the bets or wagers of 21. 9s. 7d., and, in response request for a remittance, a letter was received from them dated the 17th day of June, 1902, inclosing postal orders for 21. 9s. 5d., 2d. being deducted for registration. to a Topping and Spindler had a banking account at the Newington branch of the London and County Bank Limited, and the Post Office Order for 31. so sent to them was paid into such account, and it was also proved that Topping and Spindler were occupiers of offices at Nos. 150 and 152, Fleet-street, in London. H. A. Brown was clerk to the solicitors for the prosecution, and he stated he had been a solicitor's clerk all his life and had SMITH LIMITED บ. HAWKE. 1903. no other calling or business, and that in all the steps he took as ASHLEY AND above mentioned he had acted under the instructions of the solicitors, and had been supplied with money by them to be used as above mentioned, and that all the steps he took were with the view to and for the purpose of a prosecution of the appellants; that no communication had ever been made to, or notice given to, the appellants that a prosecution of Topping and Spindler Betting--had been instituted by the league, nor had they, so far as he Advertisement -Bettinghad heard, ever been prosecuted for illegal betting. houseThere was no evidence whatever before the alderman showing Place used for that the appellants ever had any knowledge or notice of the way in which Topping and Spindler carried on their business, or of the fact that they committed any illegality (if any) in so doing, and at the hearing on the 1st day of December, 1902, he stated his opinion to the effect that he was quite satisfied of the good faith of the Sportsman (i.e., the appellants), and that he did not question that for a moment, but that the question was whether knowingly or unknowingly they had brought themselves within the four corners of the law. It was admitted by the appellants that the sums received from Topping and Spiudler in respect of the advertisements for the six months from the 1st day of May, 1902, to the 31st day of October, 1902, amounted to 11571. 2s. 4d. No evidence was tendered by or on behalf of the appellants. On behalf of the appellants it was contended: (a) That the whole of the evidence given in proof of the facts resulting from Brown's inquiries was inadmissible on the ground that the advertisement, to be within the provisions of the said sect. 7 of the Betting Act, 1853 (16 & 17 Vict, c. 119), must be such as to make it appear from its wording or on its face that a house, office, room, or place was open, kept, or used in the United Kingdom for making bets or wagers contrary to sect. 1 of the same statute. (b) That it was not open to the respondent to put in the above mentioned evidence in any case, and certainly not unless the matters deposed to were connected with the appellants by showing that they had notice or knowledge of them. (c) That there was no evidence that the words in the advertisement had any meaning other than that they bore according to the ordinary use of the English language, or upon the face of them. (d) That no one was called to prove that he had construed the advertisement as referring to illegal betting, and that not even H. A. Brown gave any evidence he had so construed it upon reading it. (e) That the evidence before referred to was admissible, if at all, only on a prosecution of Topping and Spindler, and not on the prosecution of any newspaper for publishing the advertisement. (f) That before the appellants could be legally convicted under sect. 7 of the Act in respect of the publication of the advertisement, they must have been proved to have had knowledge or to have been fixed with notice of the particular method in which Topping and Spindler bettingUnlawful betting must be meantBetting Act, Vict. c. 119), 1853 (16 & 17 ss. 1, 7. |