19 January, 1955. ] THE LEEWARD IZLANDS GAZETTE. 19

It follows from what we have said above that Cools-Lartigue, J., erred in thinking, as he
said in Osborne v. Silcott, that the relevant provisions of the Summary Jurisdiction Act, 1879, were
exactly similar to the local law; and that in our opinion, (Christian r. Hill and Osborne wv. Sucott
were wrongly decided.

Before us counsel for the respondent herein sought and was granted leave to add an
additional ground to his cross appeal setting out why the conviction and sentence should not be
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sustained in that “it was not open to the Magistrate to convict the appellant-respondent of the
offence and to sentence her in the alternative to a term of imprisonment of two months with hard
labour” inasmuch as section 23 of Licensing Act, 1879, ‘‘did not permit the said Magistrate to

order a term of imprisonment exceeding one month.”

This question was considered in the case of The Queen v. Hopkins (1853) 1 Q.B. 621, where
a similar point arose. leferring to the argument that the legislature never could have intended
that a man should be liable to be sent to prison for non-payment of a penalty for a longer term
than that for which he was liable to be sent to prison by way of punishment for the offence for
which the penalty was imposed Bruce, J., said:

“But it seoms to me that the legislature has expressed, and in words which admit of
no doubt, exactly the opposite intention............ I do not think we ought to set aside the
ordinary rules of construction upon the assumption that the legislature never could have
intended to adopt a principle which it has, as it seems to me, expressly adopted in the very
Act which is now under consideration.”

Again in the case of The Ning v. Leach and Another 1913 3 K.B. p. 40 where the defendant
was convicted under section 65 of the Licensing (Consolidation) Act, 1910, and fined £25 in
default of payment to be imprisoned for three months the same qnestion was raised. Darling, J.,
-as he then was, in delivering his judgment referred to the case of The Queen v. Hopkins and said—

“Tam still of opinion that the argument used by the Court in that case applies to
the present case, as well as the observations of Lord Coleridge ©.J. that it isa great
anomaly to hold that a man can be sent to prison for a longer time if he is merely fined
for an offence than he could be if he in the first instance reccived a sentence of imprison-
ment for the offence itself, but that only Parliament could remove the anomaly by
repealing or amending its statutes. That was said in 1893, and, seventeen years after-
wards, namely, in 1910, when the Licensing (Consolidation), Act, 1910, was passed
Parliament had an opportunity of remedying the anomaly which Lord Coleridge referred
to but Parliament did not do so; on the contrary, it deliberately re-enacted it in the same
form as that in which it was at the date of the decision of Rey. 1. Hopkins; for by section
99 of that Act it is provided that “except as otherwise provided, any offence under this
Act may be prosecuted and every fine of forfeiture may be recovered and enforced in
manner provided by the Summary Jurisdiction Acts.” Sect. 65 of the Act does not
otherwise provide as to the method of recovering fines imposed in respect of the contra-
vention of that section, and, therefore the Summary Jurisdiction Acts apply.”

Similarly here, section 61 of the Licensing Act 1879 does not otherwise provide, and
therefore the Magistrate’s Code of Procedure Act applies.

In the present case the term of imprisonment ordered by the Magistrate was authorised
by section 125 of the Magistrate’s Code of Procedure Act. ,

We now turn to the question raised in the cross appeal, namely, whether the Magistrate
erred in law in convicting the respondent when he also convicted her husband of the same otfence.
It was urged by learned counsel for the respondent that the offence of keeping liquor for sale
without a licence wasa “passive” one, and that the responsibility for the unlicensed liquor prima
facie lay with the person who had charge of the premises on which it was kept. He submitted
that since the husband was in charge of the marital home he was the person prima facie responsible,
and that as in this case he had been convicted it was not open to the Magistrate to convict the

respondent also.

While we agree with the proposition that the husband, being in churge of the marital home,
would be the person prima facie responsible, the evidence in this case shows clearly that the respondent
identified herself with and assumed responsibility for the liquor which was found on the premises. In
the course of his argument Mr. Christian submitted that the statements made by the respondent at the
time of the search were merely “petulant remarks” not involving guilt, and drew attention to the fact
that the respondent had later said that she was not guilty. At the trial however the respondent did not
adopt this attitude but denied that she had made the statements. ‘The Magistrate rejected her denial
accepted the evidence of the police as he was entitled to do, and convicted her. The husband has not
appealed and we express no opinion as to whether or not he was properly convicted, but we are clearly