1904 Dec. 19. THE KING v. KETTLE AND THE LONDON COUNTY COUNCIL. Ex parte ELLIS. Summary Jurisdiction-Practice-Recognizances on Case stated—Sufficiency— The appellant having been convicted at a metropolitan police court of an offence against the London Building Act, 1894, applied to the magistrate to state a case, and his application was refused. The appellant then entered into a recognizance with one surety with the consent of the magistrate, under 20 & 21 Vict. c. 43, s. 3, to prosecute the appeal, and applied to and obtained from the High Court a rule absolute for a mandamus to the magistrate to state the case. In the meantime the appellant had been adjudicated bankrupt and his surety had died. The magistrate stated and signed the case in pursuance of the order of the Court, but declined to deliver it up until the appellant had entered into a fresh recognizance :— Held, that the recognizance previously entered into was valid, and that the magistrate had no authority to require a fresh recognizance. RULE NISI calling upon Rupert E. C. Kettle, Esq., the metropolitan police magistrate at Woolwich, and the London County Council, to shew cause why the magistrate should not deliver to the applicant Ellis a certain case stated and signed by the magistrate, in which Ellis was the appellant and the London County Council were the respondents. It appeared that in August, 1903, Ellis was summoned by the London County Council, under the London Building Act, 1894, for erecting a building at Charlton, in the county of London, beyond the general building line, and was convicted and fined by Mr. Kettle at the Woolwich Police Court, and ordered to demolish a portion of the building. Ellis applied to the magistrate to state a case for the opinion of the High Court, but this application was refused. Two or three days later, on August 17, 1903, Ellis attended before the magistrate and stated that he desired to enter into such recognizances, under s. 3 of 20 & 21 Vict. c. 43, as Mr. Kettle should require for the prosecution of a case to be stated. Mr. Kettle said that he might enter into the recognizance for what it was worth, and that he should require a recognizance by himself and one surety in the sum of 50l. Ellis then accordingly entered into a recognizance in due form for this amount, and on August 22 one Josiah Leaver at his request entered into a recognizance as surety for him for the same amount. The recognizances were annexed to the security book kept at the Woolwich Police Court. On August 20, 1903, Ellis obtained from the judge in chambers a rule nisi for a mandamus calling upon Mr. Kettle to shew cause why he should not state a case. This rule was after argument made absolute on December 17, 1903. Meantime the surety, Leaver, died on September 10, 1903, and Ellis was adjudicated bankrupt on October 13, 1903. Mr. Kettle having stated and signed a case pursuant to the order of December 17, 1903, refused to deliver it to Ellis unless he first entered into a fresh recognizance with sureties under s. 5 of 20 & 21 Vict. c. 43. Ellis then obtained this rule nisi. Mr. Kettle did not appear, but in an affidavit filed by him he stated that, having regard to s. 5 of 20 & 21 Vict. c. 43, it appeared to him that, before delivering the case which he had stated and signed pursuant to the order of December 17, 1903, he must require a recognizance to be entered into upon that case and sufficient at the time of its delivery, and that he had great doubt whether the previous recognizance could be construed as applying to the costs of the case stated by order of the Court, and also whether Leaver's estate could be made liable upon a recognizance which did not come into operation (if at all) until after his decease and whether this kind of recognizance could be enforced against the estate of a deceased surety. He further stated that he had offered to deliver the case to Ellis's solicitors upon a fresh recognizance in the sum of 507. being entered into, and that as Ellis had been adjudicated bankrupt he considered that the fresh recognizance ought to be entered into by two sureties in addition to Ellis. (1) (1) By 20 & 21 Vict. c. 43, s. 2, by a justice or justices of any 1901 REX v. KETTLE. ELLIS, Ex parte. 1904 REX V. KETTLE. ELLIS. Ex parte. case. Daldy, for the London County Council, shewed cause. The recognizance entered into by Ellis and Leaver came under s. 3 and not under s. 5, and related to the case which the magistrate refused to state. The words of s. 5 clearly indicate that a recognizance should be entered into in regard to the case which the magistrate has stated and signed in pursuance to the order of the Court. The magistrate can only consider the sufficiency of the recognizance when he has received the order to state the The words "as is hereinbefore provided" merely refer to the recognizance being such as the magistrate may approve. A further point is that the recognizance entered into in August, 1903, had failed by the death of the surety and the bankruptcy of the principal before the magistrate was ordered to state a case. A recognizance of this character could not be enforced against the estate of the deceased surety. The recognizances referred to in s. 3 and s. 5 are given on quite separate occasions. That given under s. 3 is conditioned to prosecute the appeal, to submit to the judgment of the Court, and to pay costs, and is to be entered into before the case is stated. That referred to by s. 5 is to be entered into after the case has been stated and signed in obedience to the order of the Court. Frank Gover, in support of the rule. The recognizance entered into with the assent of the magistrate in August, 1903, is sufficient. It was conditioned to prosecute the case to be party. . . . may. . . . apply. . . . By s. 3, "The appellant at the By s. 5, "Where the justice or justices shall refuse to state a case . . . . it shall be lawful for the appellant to apply to the Court of Queen's Bench upon an affidavit of the facts for a rule calling upon such justice or justices, and also upon the respondent, to shew cause why such case should not be stated. . . . and the justice or justices, upon being served with such rule absolute, shall state a case accordingly, upon the appellant entering into such recognizance as is herein before provided." stated. Mr. Kettle had already refused to state a case, and the recognizance could therefore only apply to the case which the Court might order him to state. It is admitted that the recognizance was then sufficient and satisfactory to the magistrate, and if he had consented to state the case there would not have been the difficulty caused by the death of the surety and the bankruptcy of the principal. The delay was the fault of the magistrate in refusing to state the case. [He was stopped.] LORD ALVERSTONE C.J. This case is certainly one of diffi culty and importance. It must be taken, I think, in favour of the applicant that security has been given by him in accordance with s. 3 of 20 & 21 Vict. c. 43. It is of course most material that security should be given, and if it could have been said. either that no security was given under s. 3, or that the magistrate had no power to take security at that stage of the proceedings because he had not then made up his mind whether he would grant a case or not, or because he was going to refuse it, that would have gone a long way to convince us that the rule should be discharged. It seems to me, however, impossible to say that it was not within the power of the magistrate to take the recognizance of the applicant at the time that he did take it. Sect. 3 says the appellant at the time of making such application, and before the case shall be stated and delivered to him by the justice, shall in every instance enter into a recognizance. An extended construction has been put upon that section by the cases of Chapman v. Robinson (1) and Stanhope v. Thorsby. (2) In Chapman's Case (1) it was decided that the appellant may enter into the required recognizance at any time during the three days allowed for applying for a case. The second case, that of Stanhope v. Thorsby (2), goes further, and says it is enough, if the recognizance is entered into before the case is stated, if the application to state the case has been made within the three days. But neither of those cases throws any doubt on the right and the jurisdiction of the magistrate to take the recognizance at the time of (1) (1858) 1 E. & E. 25. (2) (1866) L. R. 1 C. P. 423. 1904 REX v. KETTLE. ELLIS, Ex parte. making the application. Therefore, as I have said, I think we must take it that the application to the magistrate to take the recognizance in August, 1903, was made at a time when it was within his jurisdiction to take it. The only other point is whether the fact that the magistrate Lord Alverstone refused to state a case and that this Court has since ordered C.J. the case to be stated makes any difference and makes it necessary for the applicant to enter into further recognizances. I admit that s. 5 affords some ground for Mr. Daldy's argument, because it says: "The justice or justices, upon being served with such rule absolute, shall state a case accordingly, upon the appellant entering into such recognizance as is herein before provided." That was obviously necessary in order to prevent a person obtaining the case on the rule without giving any security; but it seems to me that the phrase "as is herein before provided " may be well satisfied, not only by the form and nature of the recognizance, but also by saying it is a recognizance which is to be taken in the way contemplated by s. 3; and, on that construction, it would rather help Mr. Gover's argument, because he says that s. 5 is to be effective if the appellant has fulfilled the conditions required by s. 3. Therefore it seems to me that there was a recognizance given in August, 1903, in accordance with s. 3, and that that security is effective for whatever it may be worth against the persons who became either principal or surety, and that the condition of the recognizance is the same as it would be if a fresh recognizance were entered into, namely, to prosecute the appeal, and pay the costs that may be awarded by the Court on a case being stated. In those circumstances it seems to me impossible for us to say that the magistrate was right in refusing to deliver out the case to the applicant without a further security being given by him. I think, therefore, that this rule should be made absolute. KENNEDY J. I am of the same opinion. It seems to me that under s. 3 (although it has been decided that it is sufficient if the recognizances are entered into before the case is stated and delivered out) it is perfectly correct for the intending appellant |