important parcel. The plaintiffs rested their case almost entirely on oral evidence of user by persons, other than the defendants, in such manner as was said to be inconsistent with the defendants having obtained a title. They also placed much reliance upon a map made in 1817 by one Samuel Swire, a person now dead, who was proved by a witness, named George Kendall, to have been a competent surveyor and thoroughly conversant with the district. This map was received by me in evidence, after objection, and its admissibility and weight will be separately dealt with, but before doing so I will proceed to refer in detail to the oral testimony. [His Lordship, having dealt at length with the evidence given before him, proceeded: I now return to the question of the admissibility in evidence and the weight of the map of 1817. It was produced from the manor house, where it was usually kept, and where, as I was told by the witness T. Green, the assistant overseer, it was from time to time referred to by the parish officers for assessment purposes. It purported to be a plan of the township of Addingham, and bore the name of Samuel Swire as maker, of whom George Kendall gave the following account: "I knew Samuel Swire; he was a surveyor at Skipton, six miles from Addingham; he used to make township plans; he was the only competent surveyor in the neighbourhood; he lived all his life in the district; his handwriting is on this plan." Now, the question in this action is one of public or rather general right; one, that is to say, in which a class of the community-namely, the inhabitants of the township and tenants of the manor has a common interest; and the map comes from the custody of the lord of the manor. It was made by a person conversant with the locus in quo, and has been recognised by the parish authorities for rating purposes. Under these circumstances I think it receivable in evidence, and it deserves careful examination, inasmuch as it shows what the natural position of the green and adjacent strip was in 1817 with reference to other open land within the township. It appears clear that Addingham Moor was at that date continuous with the green and strip, and connected with them by a somewhat narrow piece of waste with inclosures on both sides, which now is still further narrowed, and has become Moor Lane. This piece of waste became wider at the green, which was then larger than it is at present, the gardens of the defendants' houses to the north being then included in it. Altogether the map affords a valuable addition to the oral testimony. Looking, then, at the geographical relation of the green to the open moor, and the oral evidence as to user to which I have already sufficiently referred, I have no hesitation in finding that the green was originally part of the waste of the manor of Addingham. I have come to the same conclusion as to the adjacent strip. [In dealing with the evidence on this point his Lordship said:] Further, Mr. Wilkinson, the tenant for the past four years of Town Head house, has on three occasions paid tithe for the green, and it was shown by production of the tithe map and book of reference, dated the 27th Dec. 1843, that the green was numbered 399, and was described as "Green, pasture, 1 rood 35 perches-64d.-occupier, Henry Harrison." The measurement shows a greater area than the present green, but it includes the roads now round three sides of it, and also the [ADM. portion afterwards inclosed, and added to the gardens of the defendants' houses and cottages. The reception of this map in evidence was strenuously objected to, and Wilberforce v. Hearfield (5 Ch. Div. 709) was cited. In that case the late Master of the Rolls held that a tithe map was not evidence of boundaries between two adjoining owners. I considered, however, that the case did not apply to the admissibility of such a map upon an issue raising a question of public or general right, and I accordingly received it in evidence substantially on the same grounds as those on which I had admitted the map of 1817 made by Samuel Swire. After dealing with the other points raised in the case his Lordship gave judgment for the plaintiffs. Judgment for the plaintiffs. Solicitor for the plaintiffs, Charles Lawson Smith. Solicitors for the defendants, Pitman and Sons, for Fawcett, Sinclair, and Atkinson, Otley. PROBATE, DIVORCE, AND ADMIRALTY DIVISION. ADMIRALTY BUSINESS. Jan. 14 and 16. THE NAUTIK. (a) Practice-Jurisdiction-Writ in rem-Removal of ship out of jurisdiction before arrest―Judgment by default. Due service of a writ in rem, without arrest of the ship, is sufficient notice to the persons interested to found jurisdiction and to enable the court to pronounce judgment by default against them. Where in an action in rem for damage to cargo, the defendant's ship, after being served with a writ, but before being arrested, was secretly removed out of the jurisdiction, the court gave judgment by default for the plaintiffs' claim. THIS was an action for damage to cargo in rem against the barque Nautik. The plaintiffs, as indorsees of a bill of lading, signed by the master of the Norwegian barque Nautik on behalf of himself and the defendants, the owners of the barque, took delivery, on the arrival of the Nautik at Liverpool, of a cargo of cotton seed, which had been shipped on board of her at Pernambuco for delivery to them at Liverpool. The plaintiffs alleged that the cotton seed had deteriorated, and that such deterioration was not occasioned by any of the perils or causes excepted in the bill of lading, and on the 15th Aug. 1894 issued their writ in rem in an action for damages. On the 17th Aug. the writ was served by nailing the original on the mainmast of the Nautik whilst she was lying in Prince's Dock, Liverpool, and, on taking off the process, a copy of the writ was left nailed in its place. No bail having been put in on behalf of the defendants, on the 20th Aug. a warrant of arrest was issued and lodged with the deputy-marshal. On the 21st Aug. the deputy-marshal's officer informed the plaintiffs that the Nautik was not to be found within the port of Liverpool, and it was then discovered that the master of the Nautik (a) Reported by BUTLER ASPINALL, Esq., Barrister-at-Law. had engaged a tug to tow her up to Garston, where she was under charter to load another cargo, that she had anchored in the Garston channel, but that at nightfall the master of the Nautik had engaged another tug to tow her to sea, and that she had proceeded to sea without a clearance or bill of health. The defendants' solicitors having communicated with their clients, and being aware that the Nautik was under charter to load a cargo at Garston, had on the 15th Aug. written to the plaintiffs stating that their clients were willing to continue an undertaking that the Nautik should not leave the port of Liverpool until twenty-four hours' notice of her sailing should have been given to the plaintiffs; but on the 20th Aug. they wrote that their clients declined to sign the undertaking, and withdrew their letter of the 15th. The Nautik had in the meantime proceeded to sea. Under these circumstances the plaintiffs set the action down for trial, and now asked the court for judgment by default. Aspinall, Q.C. for the plaintiffs in support of the motion. All the necessary time has elapsed to entitle the plaintiffs to judgment. Before the Judicature Act there was no writ as distinguished from a warrant, the form of the warrant shows a direction to the marshal "to arrest the said, &c., and to keep the same under safe arrest, until you shall receive further orders from us; and to cite all persons who have, or claim to have, any right, title, or interest in the said, &c." The wording here shows that the marshal had to undertake two distinct acts, namely, an arrest and a citation. By the Judicature Act these two acts were separated, the writ took the place of the citation, and the warrant alone is now addressed to the marshal. The writ cites the parties interested to appear within a certain time, and states that in default of their so doing that judg ment may be given in their absence. These words must mean what they express. The object of proceeding in rem has always been to cite the owner through the res. The holding of the ship is merely for the plaintiffs' security for his debt. The Black Book of the Admiralty (edited by Sir Travers Twiss), in the Appendix, p. 350, shows that the directions given were to arrest a certain ship, and to cite per eandem navem the owner. The whole object of the procedure was to get at the owner either by citation or the arrest of the ship: The Parlement Belge, 42 L. T. Rep. 273; 4 Asp. BRUCE, J.-In this case the plaintiff seeks to obtain judgment by default against the Nautik, a Norwegian vessel, in an action for damage to cargo. A writ in rem, in the ordinary form, was served on the 17th Aug. on the vessel while she was lying in the Prince's Dock, Liverpool. After the service of the writ, and before the barque was arrested, the master of the barque clandestinely sailed at night from the port of Liverpool, and the barque has not since been within the jurisdiction. The usual time having elapsed since the date of service of the writ to entitle the plaintiff to have the case heard, the question arises whether, the property not having been under the arrest of the court, the court has jurisdiction to pronounce judgment by default. I am of opinion that it has. [CR. CAS. RES. Service of a writ in rem upon property within the jurisdiction of the court is notice to all persons interested in the property of the claim indorsed upon the writ. It is quite true that, according to the older practice, a suit in rem was commonly commenced by a warrant arresting the property, just as in still earlier practice a suit in personam was commonly commenced by a warrant arresting the person. But all that is necessary to found jurisdiction is to give formal notice to the persons interested that a claim is made against them or against their property in a court of competent jurisdiction, and that, if they do not appear to vindicate their rights judgment may be given in their absence. The rules of the Supreme Court have directed that actions in rem shall be commenced by writ, and I think the service of the writ on the property has the same effect so far as notice to the persons interested in the property is concerned, as service of the warrant had under the former practice. To confer jurisdiction it is not, I think, necessary that the property, the subject-matter of the suit, should be actually in the possession of the court or under the arrest of the court, it is enough that it should be, according to the words of Lord Chelmsford, in the case of Castrique v. Imrie (23 L. T. Rep. 54; 3 Mar. Law Cas. O. S. 460; L. Rep. 4 H. of L. 448), within the lawful control of the state under the authority of which the court sits. The same view is expressed by Jessel, M.R., in The City of Mecca (44 L. T. Rep. 754; 4 Asp. Mar. Law Cas. 416; 6 P. Div. 112). That learned judge says: "An action for enforcing a maritime lien may no doubt be commenced without an actual arrest of the ship." I therefore give judgment for the plaintiffs' claim with costs. Solicitor for the plaintiffs, John R. Watkins, Liverpool. CROWN CASES RESERVED. Nov. 10 and 17, 1894. (Before Lord RUSSELL, C.J., HAWKINS, CHARLES, WRIGHT, and COLLINS, JJ.) 66 REG. v. BROWN. (a) Criminal law-Betting House Act 1853-Keeping premises for persons resorting thereto to betNature of offence-Bets by letter or telegramResorting"-Penalties-Practice-Indictment for offences not charged in summary proceedings Vexatious Indictments Acts Points not reserved by case-Practice of court as to sending back cases for restatement. The offence created by the first portion of sect. 1 of the Betting House Act 1853 cannot be proved by evidence of directions communicated to the keeper of the premises unaccompanied by evidence tending to show that the purpose for which the premises were kept was for the betting with persons resorting thereto in person. The offence created by the enactment being, however, the keeping open premises for the purpose of betting with persons resorting thereto, if the evidence shows that the premises were kept for such purpose it is unnecessary to prove actual personal resorting thereto on the part of any persons. Per Hawkins, J. (Wright, J. dissentiente) : A (a) Reported by R. CUNNINGHAM GLEN, Esq., Barrister-at-Law. person convicted of keeping open, &c., a place, contrary to sect. 1 of the Betting House Act 1853, is not liable to more than one penalty in respect of the keeping open, &c., of such place upon any one occasion. Where, upon the hearing of a summons before a court of summary jurisdiction, the defendant is entitled under sect. 17 of the Summary Jurisdiction Act 1879 to claim, and does claim, to be tried by a jury, the position of matters becomes thereafter the same as if the defendant had been charged with an indictable offence and not with an offence punishable on summary conviction. In such case, therefore, if the offence charged in the summons was one of the offences to which the Vexatious Indictments Acts apply, the statute 30 & 31 Vict. c. 35 renders it lawful for the prosecution to present an indictment to the grand jury alleging a different offence to that, or containing counts alleging offences other than that, in respect of which the defendant was committed for trial, provided that such other offences are, in the opinion of the court in or before which the indictment is preferred, justified by the evidence given before the court of summary jurisdiction. The Court for Crown Cases Reserved will not send a case reserved for its opinion back to be restated for the purpose of raising a fresh point; and will only do so where anything arises which is incident to a point which is raised, aud with regard to which the Court is desirous of further information. CASE stated for the opinion of this Court by the Recorder of the borough of Plymouth as follows: At the Midsummer Quarter Sessions for the borough a true bill was found by the grand jury against Charles Thomas Brown for misdemeanour. The indictment (a), after reciting that the defen (a) A copy of the indictment was annexed to and formed part of the case, and the first and second counts of the indictment were as follows: "Borough of Plymouth to wit.-The jurors for our Lady the Queen upon their oath present that Charles Thomas Brown was charged before a court of summary jurisdiction, holden at the Petty Sessional Court, the Guildhall of the borough of Plymouth, in the county of Devon, on the twenty-eighth day of April, in the year of our Lord one thousand eight hundred and ninety-four, with offences, to wit, the offences hereinafter in several counts charged and stated, and did then, on appearing before the court of summary jurisdiction and before the said charges were gone into, claim to be tried by a jury.-1st Count: And the jurors aforesaid, upon their oath aforesaid, present that the said Charles Thomas Brown was the occupier of a house and rooms in the said house numbered 11, Alfred-street, in the said borough of Plymouth, and that the said Charles Thomas Brown being such occupier as aforesaid, on the seventeenth and eighteenth days of April in the year of our Lord one thousand eight hundred and ninety-four, unlawfully did open, keep, and use the said rooms in the said house for the purpose of betting with persons resorting thereto, to the great damage and common nuisance of all the liege subjects of our Lady the Queen there inhabiting, being, residing, and passing, to the evil example of all others in like case offending against the form of the statute in such case made and provided, and against the peace of our Lady the Queen, her crown and dignity. -2nd Count: And the jurors aforesaid, upon their oath aforesaid, do further present that the said Charles Thomas Brown was the occupier of a house and rooms n the said house, to wit, a house numbered 11, Alfred [CR. CAS. RES. dant had been summoned before the magistrates and upon being asked had elected to be tried by a jury, contained four counts for offences under the first section of the Betting House Act 1853 (16 & 17 Vict. c. 119). Before the defendant pleaded it was objected that the indictment was bad, because each count in it alleged a different offence from that with which the defendant was charged before the magistrates, or because it contained counts for other offences than that for which the defendant was charged before the magistrates. It was proved that the defendant was summoned before the magistrates. (a) The defendant having appeared to the summons, was asked by the magistrates if he wished to be tried by a jury, and he elected to be so tried. The magistrates proceeded to hear the evidence on the charge. The charge in the depositions was stated as follows: That he the said Charles Thomas Brown on the 17th and 18th days of April 1894, at the borough of Plymouth aforesaid, being then occupier of a certain house situate at No. 11, Alfred-street, there unlawfully did use the said house for the purpose of betting with persons resorting thereto upon certain events and contingencies of and relating to certain horse races, contrary to the statute in that case made and provided, and against the peace of our Lady the Queen, her crown and dignity. The evidence then taken before the magistrates was sufficient to support all four counts in the street, in the said borough of Plymouth, and that he, the said Charles Thomas Brown, being such occupier as aforesaid, on the seventeenth and eighteenth days of April, in the year of our Lord one thousand eight hundred and ninety-four, unlawfully did open, keep, and use the said rooms in the said house for the purpose of money being received by and on behalf of him the said Charles Thomas Brown, then being the said person occupying the said house as aforesaid, as and for the consideration for an undertaking, promise, and agreement to pay thereafter money on the contingency of and relating to horse races, to the great damage and common nuisance of all the liege subjects of our Lady the Queen, there inhabiting, being, residing, and passing, to the evil example of all others in like case offending, against the form of the statute in such case made and provided, and against the peace of our Lady the Queen, her crown and dignity." The indictment contained two other counts, alleging that the defendant, being a person using the premises in question, unlawfully opened, kept, and used them for the same purposes as alleged in the previous counts upon the same dates as therein mentioned. (a) A copy of the summons was also annexed to and formed part of the case, and was as follows: "In the Borough of Plymouth.-To Charles Thomas Brown, of 11, Alfred-street. Information has been laid this day by Joseph Davidson Sowerby, for that you, on the 17th and 18th days of April 1894, at the borough aforesaid, being then occupier of a certain house situate at 11 Alfred-street, there unlawfully did use the said house for the purpose of betting with persons resorting thereto upon certain events and contingencies of and relating to certain horse races, contrary to the form of statute in such case made and provided. indictment. I held that the indictment was good, but agreed to state a case for the opinion of the Court for Crown Cases Reserved. The defendant then pleaded not guilty, and was tried before me. It was proved that the defendant was occupier of the house 11, Alfredstreet, Plymouth, and that he used the house for the purpose of betting with any persons who wrote or telegraphed to him asking him to bet with them. It was also proved that he used the house for the purpose of money being received on his behalf as and for the consideration for an agreement to pay thereafter money on the event of a horse race. There was no evidence that any person had actually gone to the house for the purpose of betting with the defendant, other than those who had gone to pay money under the circumstances described in the second count of the indictment. It was objected that there was no evidence of the defendant having betted with persons resorting to the house. I directed the jury that it was not necessary for a conviction under the first count of this indictment that the defendant's house should have been used for the purpose of betting with persons who physically came to the house, but that, if the house was used by the defendant as an office to which any persons who wished to bet with him were to send their communications, and if persons were in the habit of sending letters and telegrams to him there directing him to make bets with them, such persons resorted to the house within the meaning of the Act, and the jury might find the defendant guilty of using the house for betting with persons resorting thereto, and I directed the jury to give their verdict separately upon the first and second counts. The jury found the defendant guilty upon the first count, and also upon the second count. I sentenced the defendant to a fine of 3007. on the first count, and to a fine of 1001. on the second count, and I respited the judgment till the case to be stated by me should be heard by the Court for Crown Cases Reserved, or till the 1st Jan. 1895, whichever should first happen. It was objected on behalf of the defendant that I had no jurisdiction to sentence the defendant to a greater fine than 1007., or to more than one penalty. The questions for the court are: 1. Whether the indictment was bad for not alleging the same offence as that in respect of which the defendant had claimed to be tried by a jury; or for containing more than one count; or for containing a count differing from the charge upon which the defendant had been brought before the magistrates. 2. Whether the defendant could be guilty of using his house for betting with persons resorting thereto, although such persons only sent letters and telegrams to the house, and did not personally come there. Whether I had jurisdiction to fine the defendant more than one penalty of 1007. If the court shall answer the first question in the affirmative, the judgment is to be reversed and the defendant acquitted. If the court shall answer the first question in the negative, and either the second or third question also in the negative, the defendant is to be acquitted on the first count, and judgment is to stand upon the second count that the defendant be fined 1007. [CR. CAS. RES. The Betting Houses Act 1853 (16 & 17 Vict. c. 119), s. 1, enacts that: 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. C. F. Gill (with him H. E. Duke), on behalf of the defendant, submitted, in the first place, that the jury had been misdirected with regard to the meaning of the word "resorting" in sect. 1 of 16 & 17 Vict. c. 119, which in its plain and ordinary sense meant a physical resorting of persons intending to bet, and could not be satisfied by mere correspondence; and cited the rule of construction stated by Lord Esher, M.R. in The Hornsey Local Board v. The Monarch Investment Building Society (61 L. T. Rep. 867; 24 Q. B. Div. 5). There was nothing in the context of the section which required any other than the ordinary meaning to be placed upon the word, and as the latter part of the section dealt with that which did not require a physical resorting, there was nothing which made it desirable to place a meaning other than the ordinary one upon the word. In Clark v. Wright (34 J. P. 661) the word was dealt with incidentally, and also in Reg. v. Preedy (17 Cox C. C. 438). The construction contended for by the prosecution would include a person who might have sent someone else to a place, but had never been there himself. With regard to the point as to the defendant not having been summoned for the whole of the offences charged in the indictment, he submitted the second count was bad, because the preliminary steps necessary to justify it had not been taken, that when before the magistrates, the defendant was charged with a different offence, which was punishable summarily, and only one offence could, by reason of 11 & 12 Vict. c. 43, s. 10, be charged in one complaint or information. The Vexatious Indictments Act was passed expressly to prevent a person being indicted for the offences charged amongst others without the preliminary investigation before a court of summary jurisdiction having taken place. Here the defendant had elected to be tried for the offence for which he was summoned, and for that only. [A further point was submitted, that the opinion of the learned Recorder had not been taken, as required by 31 Vict. c. 35, s. 1, before the indictment had been sent up to the grand jury, upon whether the counts in the indictment charging offences other than that charged in the summons were justified by the evidence before the magistrates. But the court was of opinion that, as the point was not raised by the case, it was not open to the defendant to take it. Upon counsel thereupon applying to have the case sent back in order that it might be restated:] Lord RUSSELL, C.J. said:-It is not according to the practice of the court to do so. If anything arises which is incident to a point which is raised, and the court is desirous of further information, the court will send the case back; but that is not the case here, and the court will not send the case back for the raising of a fresh point. Poland, Q.C. (with him J. A. Thorne and F. Bodilly) submitted, on behalf of the prosecution, that the defendant having elected to be tried by a jury under sect. 17 of the Summary Jurisdiction Act 1879, the subsequent proceedings were to be taken as if he was charged with an indictable offence; and that, inasmuch as the depositions disclosed other offences besides that in respect of which the defendant was summoned before the magistrate, such offences could be included in the indictment. The proceedings were therefore regular, the point not being open to the defendant that leave had not been obtained before the additional counts were sent up to the grand jury. If the defendant had been taken by surprise he should have applied for a postponement of the trial, but this was not done. Further, the indictment charged an offence which, under sect. 1 of the Betting Houses Act 1853, was a common nuisance, and an indictment for a common nuisance was not within the Vexatious Indictments Acts. [He was stopped by the Court upon this point.] With regard to the point as to resorting, it was admitted that, under the second part of sect. 1 of the Act of 1853, physical resorting was not necessary to constitute the offence, and in Clark v. Wright (ubi sup.) it was expressly found that no persons did resort in that case. Physical resorting was not necessary under the first portion of the section either, for when the object of the Act was looked at the word meant "have recourse to," and this could be done by messenger, post, telegraph, or telephone. Cur. adv. vult. Lord RUSSELL, C.J.-In this case the matter comes before the court upon a case stated by the learned Recorder of Plymouth, and the facts are these: The defendant Brown was charged before certain of the justices of the borough of Plymouth under the Betting Houses Act 1853 (16 & 17 Vict. c. 119, s. 1), for that he being the occupier of a certain house situate in the borough, "there unlawfully did use the said house for the purpose of betting with persons resorting thereto upon certain events and contingencies of and relating to certain horse races, contrary to the form of the statute." He appeared in answer to that summons before the magistrates, and upon so appearing he was rightly informed by the magistrates that, under the Summary Jurisdiction Act 1879, having regard to the nature of the offence with which he was charged, he had a right under sect. 17 of the statute to elect to be tried by a jury instead of being dealt with summarily by the magistrates, and, upon being informed of this right, he thereupon elected not to be dealt with summarily, but to be tried by a jury before the quarter sessions. The case then came on before the recorder at the borough sessions, and evidence was then given sufficient to establish in the opinion of the recorder, by whose opinion in the matter we are bound, not only that the defendant had kept open and used the house for the purpose of betting with persons resorting thereto, but also that he had kept or used it for the purpose of money being received by him as upon an assurance of paying money on the contingency of horseracing. those being the offences created by the first and second divisions of the 1st section of the Betting Houses Act, upon which the prosecution proceeded. The indictment in the first and second counts, and alternatively in the third and fourth counts, charged offences in those two aspects: the first charging that the defendant kept and used rooms in the house for the purpose of betting with persons resorting thereto so as to be a nuisance; and the second charged him with having opened, kept, and used the rooms for the purpose of money being received by and on his behalf as and for the consideration for an undertaking to pay thereafter money on the contingency of horse races. At the commencement of the trial, and before evidence was gone into, objection was taken by the learned counsel who appeared for the defendant, that the indictment was bad, because it contained other and different charges from the charge which the defendant had been brought before the magistrates to meet, and upon which he had elected to be tried; and one of the questions we are here to decide is, whether or not that objection was a good one. The case then proceeded, and evidence was given, which, in the opinion of the recorder-and I see no reason for doubting the correctness of his opinion-was sufficient to support the charge under each of those counts. In the course of his summing up of the case to the jury, however, the recorder directed them that it was not necessary for a conviction under the first count that the defendant's house should have been used for the purpose of betting with persons who physically came to the house, but that it was enough to prove that he, having opened the house, had received letters or telegrams there relating to betting; and the second question raised by the case is, whether that direction was right or wrong. If wrong, then the question arises whether the viction on the first count can stand. It was further contended, and the point is raised, that under the circumstances there was no power in the learned recorder to impose what is erroneously called more than one penalty" in respect of one and the same occasion. The term "penalty" has really no application to the punishment imposed where the matter is treated as an indictable offence, and there has been a conviction after trial by jury. In such case the jurisdiction of the court is to award such fine or imprisonment as it thinks fit, whereas "penalty" is a term applicable to the punishment fixed by the statute in the absence of the defendant electing to be tried before a jury. Now, I will take the questions raised in the order in which I have stated them. The first relates to charges other and different from that charged in the summons being included in the indictment. I do not stop to consider whether in fact the indictment did include other and different charges. It is quite clear that the charges which are contained in the indictment are cognate with those in respect of 66 con |