H. T. 1844. provisions of 6 & 7 W. 4, but by the Sheriff under the 1 Vic. c. 43, Exch.of Pleas. so that the plea filed in this case cannot apply; it is only applicable (even supposing the law to have remained unaltered) to an AssistantBarrister's bailiff, and not to this person, who was appointed by the Sheriff. THE ATTORNEY GENERAL บ. MALONE. In conclusion, it is right to advert to a decision in the Queen's Bench, in a case somewhat similar to this-The Queen v. Martin (a). That was a decision against the view now contended for ; but it is to be observed that it was founded on the particular form of the information, which only contained one count, charging the defendant "with exercising and carrying on the trade and business of an auctioneer;" but in the present case the second count charges the defendant with "selling by way of auction," which is treated by the 54 G. 3, c. 82, and 6 G. 4. c. 81, as distinguished from the former. But, independently of the distinction drawn by the Acts of Parliament, the view of the law there taken is erroneous, and ought not to govern the decision of the present case. Lawson, contra. It might be sufficient to rest the defendant's case on the authority of The Queen v. Martin (a), which decided the abstract question sought to be re-agitated in the present case. [PENnefather, B. The decision there is, that the mere selling by auction pro unâ vice, is not sufficient to make a party an auctioneer; but it does not, strictly speaking, decide that selling goods by way of auction does not subject him to a penalty.]-The distinction is not warranted by the statutes; and a party does not come within their meaning unless he carries on the trade and business of an auctioneer. Perrin, J., who pronounced the decision of the Court in the above case, went fully through the different sections of the 54 G. 3, c. 82, for the purpose of showing that an auctioneer was a person carrying on trade and business, and that the term "auctioneer" could not be applied to the person then before the Court, who filled the same situation in life as the present defendant-namely, that of a Sheriff's bailiff. By deciding this case against the defendant, the Court will not merely be overruling a solemn decision of the Court of Queen's Bench, but will be unsettling the well-established principles of construction applicable to penal statutes. All such statutes must be clear and unambiguous in language; and if there be any doubt, the subject must get the benefit of that doubt. It is unnecessary to multiply authorities to establish this rule, (a) 4 Ir. Law Rep. 153; S. C. J. & B. 81. which was acted on in Exch.of Pleas. THE ATTORNEY GENERAL บ. MALONE. a recent case in this Court-The Attorney- H. T. 1844. General v. Cathew (a). That was also a decision upon the Auction Acts. The Chief Baron there says:-" When one comes to consider "the terms of a penal Act of Parliament, we are bound to see that "the transaction sought to be affected by it is within the plain and "ordinary meaning of those terms." And Pennefather, B., in the same case also says::- "The Court ought not, by a strained construc"tion, to extend the words of an Act of Parliament which imposes a "penalty on the subject." Again, in Rex v. Winstanley (b), Lord Wynneford says:-" In all revenue cases, let the officers of Govern"ment take care that the Legislature is made to speak plain and "intelligible language. If the Legislature is not made to speak "plain and intelligible language, let not individuals suffer; but let "the public. I am bound to say, if there be any doubt about the "words, the benefit of that doubt should be given to the subject."* The only question then in this case is, whether there is any doubt, and how is it demonstrated to exist? In the case last cited, Lord Wynneford states that a variance in judicial opinion indicates the existence of a "questionable doubt upon the subject," and brings the case within the rule; which is, "to give the benefit of any doubt to the subject, and not to the Crown." Applying this test, then, a doubt, such as that contemplated by Lord Wynneford, is here demonstrated to exist; and should the Court entertain a doubt, it will give the benefit of it to the defendant, and not overrule the the decision of the Queen's Bench in The Queen v. Martin. So far are the words of these statutes from being clear or unambiguous, that a well-considered decision of a Court of Justice has pronounced them to mean the very reverse of that which the Crown here contends for. Next, to examine the statutes upon the subject. This information is brought under the 6 G. 4, c. 81, s. 26. The enacting clause of the 26th section, which gives the penalty, only speaks of persons who carry on the trade or business of an auctioneer or other trade for which a license is required. It may be said that the additional words in the schedule, "or selling any goods, &c., by auction," extend this. These words are not in the clause imposing the penalty; and it is submitted that these subsequent words cannot extend the former clause; they must be taken subject to it, and must be controlled by what went before. The words certainly cannot be taken in their full extent, "any goods;" for those which were by law (a) 3 Ir. Law Rep. 149. (b) 1 Cr. & Jer. 441. • Et vide per Bailey, J., in Denn v. Diamond, 4 B. & C. 245. H. T. 1844. exempt from auction duty, may be sold by any person without Exch. of Pleas. incurring any penalty. Therefore, even if it be sought to bring the THE ATTORNEYGENERAL V. MALONE. defendant within these last words, and if the Court should not be of opinion that these words cannot have a more extensive signification than those which preceded them, it will be necessary to look to the other Acts, and see whether the defendant had a right to sell these goods without being clogged with the necessity of calling in a licensed auctioneer. By the 31 G. 3, c. 31, s. 3, the Sheriff could only sell by public cant; he has no power to enforce the services of a licensed auctioneer for that purpose; and yet, according to the argument on the other side, if he sells without one, he is obliged to incur the penalty now sought to be imposed, or to subject himself to an action under the above statute if he sells by private sale and not by public cant. When a public officer is directed to do a thing in a particular way, the law impliedly invests him with the power to execute its orders, and therefore empowers the Sheriff or his bailiff to sell by auction. The Sheriff or the bailiff would not be entitled to charge auctioneer's fees either at common law or by this Act, for the fees are given in the schedule-not exceeding £1, 1s.; larger, 2s. 6d., and 3d. per £1; and yet he must pay auctioneer's fees out of this, if it be necessary to employ them. It never could have been contemplated by the Legislature to make such necessary, and the plaintiff would be delayed and disappointed on the part of his demand, and it would depend on the will of a third party, whom he had no power to compel to act, whether he was ever to reap any benefit from his execution. Another principle on which it can be shown that the Sheriff or his bailiff do not carry on the business of an auctioneer, is one thrown out by Pennefather, B., in The Attorney-General v. Cathew (a), that a party who sells his own goods is not within the meaning of the Act. The Court did not pronounce an opinion upon that point in their judgment; but Pennefather, B., says, in the absence of authority, it strikes him he is not within the 20th section of the Act. Now in whom is the property in those goods from the seizure? The answer is, in the Sheriff. He is bound to sell, and is accountable for the money; he alone can maintain trover for them or trespass (b); he is compellable by law to sell them, and must bring the money into Court; he can charge no auctioneer's fees; he therefore reaps no benefit on the sale, which is essential to constitute an auctioneer, both in common parlance and in the view of the Legislature. Therefore, on the principle suggested in The Attorney-General v. Cathew, neither the Sheriff nor his deputy carries on the business of an H. T. 1844. auctioneer within the meaning and spirit of these Acts. Exch. of Pleas. THE GENERAL บ. MALONE. The 54 G. 3, c. 82, s. 5, is, for the better securing the payment of the duties on auctions. Auctioneers, or persons carrying on the ATTORNEYtrade or business, are required to take out a license. The object was to secure the duty to the Crown by having responsible persons, who must find security, and who are liable to penalties for any suppression or false return; but these sales are in the schedule to this Act exempted from auction duty, therefore the reason assigned by the statute, that of securing the duty, does not apply to them. In order to guard against fraud, the 24th section requires a licensed auctioneer to make a return, and the Sheriff to certify as to the bona fides of the sale, and that exempts the auctioneer from the duty, which would otherwise be a personal charge on him. The Legislature presumed that the certificate of the Sheriff would be a sufficient security against fraud, and therefore it would not apprehend it where the Sheriff sold, and should pay the proceeds to the party; and the inference would be, that though, where there was a licensed auctioneer employed, this mode of absolving him from the duty was prescribed, yet if the Sheriff himself sold, the duty would not attach, sales under execution being already exempt from duty by the previous Act. The 23rd section requires a return on a distress for rent, yet it is exempt from duty. Even if the last clause in the schedule be against the construction contended for, the fair meaning is, that if any person be employed for reward to sell, it shall be a licensed auctioneer. It does not go on to inflict a penalty on the person so acting; and though it might be contended that the Sheriff would be subject to an action for not employing a licensed auctioneer, there is nothing in it to enforce a penalty on the Sheriff at a sale where he derives no reward, and where the Crown can lose nothing, for no duty attaches. The mode of recovering the duties is by making them a personal charge upon the auctioneer; therefore it is necessary, whenever a sale is liable to duty, to have a licensed auctioneer; but when a sale is exempt; cui bono is it to have one, only to guard against fraudulent and pretended execution sales, which, when the Sheriff or his deputy sells, is guarded against, he being a responsible person, and liable to the plaintiff for execution of the proceeds of the sale? Execution sales are in the schedule; and a clause coming afterwards and directing a licensed auctioneer to be employed at such sales, though it may be a breach of duty in the Sheriff, yet can never bring the person so acting within the penalty of the 5th section. The exemption in the schedule applies to sales under civil bill H. T. 1844. decrees: Longfield, C. B., 60. It is the Sheriff that must bring an Exch. of Pleas. execution for his fees. THE ATTORNEYGENERAL บ. MALONE. Feb. 7. To come to the Civil Bill Acts: the 6 & 7 W. 4, c. 75, s. 41, regulated the appointment of bailiffs, and substituted them for special bailiffs. The former bailiffs were, under 31 G. 3, c. 31, empowered to sell; and to obviate any question as to the power of these bailiffs, they are given this authority expressly; it was not a new authority, never before enjoyed by the other officers, for the Act meant that they should stand in the same place, and have the same powers and authorities; there could be no reason for giving the new officer a power not enjoyed by the old; and when that Act comes to be repealed (a), it is very remarkable that every matter is in express words repealed, except this, even passing over this 46th section, and going to the fees payable. So far, therefore, from an argument being drawn against the defendant from this, it amounts to a Legislative declaration, that the old officers had and exercised this privilege, which the Legislature did not think fit to abolish when they were abolishing that new office. G. Bennett, in reply. This case should be considered without reference to the decision of the Queen's Bench in The Queen v. Martin (b), the schedule to the 54 G. 3, c. 82, having been there altogether overlooked. BRADY, C. B. Cur. ad. vult. In this case of the Attorney-General v. Malone, which comes before the Court upon a demurrer to a plea put in to the information filed by the Attorney-General, the question submitted to us for argument has been, whether a special bailiff under the Civil Bill Acts is entitled by law to sell, by way of auction, goods taken in execution under a civil bill decree, without being licensed as an auctioneer, or using the assistance of a licensed auctioneer? The case is upon the record, and our judgment is called for upon it, and we are bound to give it, according to what we conceive to be the law. I speak thus, because there being a judgment of the Court of Queen's Bench upon the same point, apparently an unanimous decision of that Court, it has become our duty to consider the grounds of that judgment, and to form our own opinion upon its validity as affecting the question submitted to us. We have fully considered the question, and we feel bound, not (a) See 1 Vic., c. 43. (b) 4 Ir. Law. Rep. 153; S. C. J. & R. 81. |