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19 January, 1956. ] THE LEEWARD I=LANDS GAZETTE. 17

The Leeward Islands and Windward Islands Courts (Amendment) Order in Council, 1949
declared (1) that the power conferred upon the Governors of the Leeward Islands and Windward Islands
by subsection (2) of section 14 of the principal Order, to confer jurisdiction upon the Court of Appeal in
certain matters includes, and shall be deemed always to have included, power to confer jurisdiction upon the
said Court in any matter not specified in subsection (1) of the said section and not falling within section
13 of the principal Order; and (2) that section 19 of the principal Order shall be deemed always to have

included a reference to jurisdiction.

In our opinion, this amending Order removed all doubts which might previously have existed
as to the jurisdiction of this Court to hear appeals from an order made by a Judge on appeal from an
order of a Magistrate in a criminal case. Section 13 of the principal Order deals only with appeals by
persons convicted before the Supreme Court sitting in its criminal jurisdiction; the right of appeal and
the jurisdiction granted and conferred by sections 196 and 197 of the Magistrate’s Code of Procedure
Act Cap. 61, do not fall within its provisions and clearly fall within the provisions of section 14 (2).
With respect to the right of the Crown to appeal, Mr. Christian conceded that the Judge having ordered
the appellant to pay costs the appellant was a “‘ party aggrieved ”’.

The preliminary objection was accordingly overruled.

The first point for decision in this appeal may be stated thus: Did the learned Magistrate,
on a conviction under section 23 of the Licensing Act, 1879, have power to order imprisonment in default
of payment of a fine without first making an order for distress.

With regard to the first ground of appeal it is suffcient to state that although the decision of
this Court in Thibou v. Bowery (supra) dealt with the case of a conviction and sentence under section
23 of the Licensing Act, 1879, the point raisedin the instant case was not argued or dealt with in that
ease, and it cannot therefore be considered as an authority on this question.

In his decisions in Christian v. Hill (supra) and Osborne v. Silcott (supra), Cools-Lartigue, J.’
purported to follow the cases of Jn re Brown (1878) 3 Q.B.D. 545 and In re Clew (1882) 8 Q.B.D. 511
Both of these cases arose under section 3 of the English Licensing Act (35 & 36 Vict. c. 94), under
which a person convicted of keeping intoxicating liquor for sale on unlicensed premises was liable to a
penalty or to imprisonment. It was held that the punishments were alternative and that where the
justices imposed a penalty they could not order imprisonment in default of payment without first
issuing & warrant of distress under section 51 of the Act; and that section 21 (3) of the Summary
Jurisdiction Act, 1879 (42 & 43 Vict. c. 49) did not apply to the Licensing Act. In the case of In re
Clew (supra) Lopes, J., said, at page 514:

“J think the Summary Jurisdiction Act had no application. Section 21 subsection 3
“provides that where a person is adjudged to pay any sum of money, and in default of
‘“‘pbayment a warrant of distress is authorised to be issued, and it appears to the Court
“‘that the person has no goods or insufficient goods, or that the levy of the distress
‘will be more injurious than imprisonment, such Court may order the person, on non-
“payment, to be imprisoned. I think that sub-s. 3 applies solely to cases where the
“Justices may impose punishment by fine or, in default of payment, imprisonment.”

In Christian v. Hill Cools-Lartigue, J., held that as section 61 (1) of the local Licensing Act,
1879, was similar in terms to section 51 of the English Licensing Act a Magistrate who imposed a
penalty must first order distress to be made before ordering imprisonment in default of payment of the
penalty, and that sections 120 and 125 of the Magistrate’s Code of Procedure Act (Cap. 61) did not
apply to the Licensing Act. Jn Osborne v. Silcott he further held that this was so even though
the penalty imposed was less than £5. It is therefore necessary for this Court to consider whether
Christian v. Hill and Osborne v. Silcott were rightly decided.

It will be convenient st this stage to set out the relevant sections of the Acts under considera-
tion. The Licensing Act 1879, s. 61 (1) reads as follows:—

“61. Except as in this Act otherwise expressly provided, every offence under this Act
may be prosecuted, and every penalty and forfeiture may be recovered and enforced
in manner provided by the Magistrate’s Code of Procedure Act, 1891, subject to the
following provisions:—

(1) Where the Court of Summary Jurisdiction orders that a distress shall be made in default
of the payment of any penal sum exceeding five pounds, including under that expression
costs actually adjudged in respect of an offence, the Court may order that, in default of
the said sum being paid as directed, the person liable to pay the same shall be imprisoned
for any term not exceeding the period specified in the following scale:—

For any sum exceeding five pounds, but not exceeding ten pounds, three months,