MAIDSTONE ASSIZES.

July, 1885.

(Before HAWKINs, J.)

REG. v. CHITTENDEN AND ANOTHER. (a)

Traction engine-User on narrow road-Indictment for obstruction. Persons using a traction engine and trucks on a highway six hours daily for seven weeks cannot be found guilty upon an indictment for a nuisance to the highway, unless they create a substantial obstruction and occasion delay and inconvenience to the public substantially greater than would have been caused by horses and

carts.

INDI

NDICTMENT preferred by the Dartford Highway Board, in the county of Kent, against Messrs. Andrew Chittenden, Lake Knight and Company, traction engine owners, for that they "injuriously did put and place and cause to be put and placed on the Queen's common highway divers large and heavy traction engines propelled by steam and emitting flame and smoke, with divers large and heavy trucks or waggons with heavy loads therein attached to such engines, which said traction engines and trucks or waggons were then of such an unreasonably great size and weight, and the said line of engines and trucks or waggons so attached one to another was of such unreasonable length, as to obstruct the free passage of the said highway, and as to cut and plough up the said highway so as to render the same dangerous and inconvenient for any horses, coaches, carts, or carriages."

The indictment was removed by certiorari from the quarter sessions to the assizes, and was tried before Hawkins, J. and a special jury, at Maidstone, on the 11th day of July. There were other counts in the indictment, but they were not pressed by the prosecution.

The material facts were as follows: The defendant company, in the year 1884, made an arrangement with Mr. Moore, residing at South Ash Farm, in the parish of Hartley, in Kent, to carry flints for him from his farm to the railway station at Fawkham, a distance of some four and a half miles. The most direct road from the farm to the station was narrow and winding, having in many places high banks on each side and steep inclines. A map, which was put in, of the measurements and gradients, showed that in places the road was for some distance as narrow as 10 feet, with gradients as steep as one in ten. There were, however, sidings or broader places wherever it appeared necessary for the

(a) Reported by HERBERT RUSSELL, Esq., Barrister-at-law.

REG.

CHITTENDEN

AND ANOTHER.

1885.

convenience of traffic. In pursuance of the agreement abovementioned the defendants conveyed flints along this road for Mr. Moore by means of a traction engine, drawing sometimes two and sometimes three trucks from the 22nd day of October to the 25th day of November, and again from the 4th day of December to the 19th day of December. Two journeys were made each Indictment for day, and the time spent on the road averaged six hours daily. nuisance to The engine measured 8 feet across from wheel to wheel, outside highwayTraction measurement, and weighed ten tons. The loaded trucks weighed engine. six or seven tons each, and when the three trucks were attached to the engine the entire length was 70 feet.

The prosecution called evidence to prove that inconvenience had been caused by the engines and trucks blocking the road for periods amounting in some cases to twenty minutes; that horses and vehicles using the road had been stopped or compelled to go another way to avoid being blocked; and that the trucks had been left on the road while the engine went on to a pond for

water.

On the other hand, evidence was given for the defendants that they had used a wider traction engine on the road in 1881 without objection being made to it; that delay was never occasioned for more than a few minutes at a time; and that the engine and trucks or the approaching vehicle would stop in a siding in the road until the other passed, just as would one of two passing vehicles.

Willis, Q.C. (with him Morton Smith and Winch) contended, on behalf of the defendants, that they were entitled to use the road as they had done. The Acts of Parliament relating to traction engines did not confine their use to any particular kind of highway, and must therefore be taken as sanctioning them on all. This road had always been used for carting stones, manure, and agricultural produce; no appreciable interference with the traffic had been shown which would not equally have been occasioned if horses and carts had been used instead of steam power. If the jury agreed with him on that they must find a verdict for the defendants.

Murphy, Q.C. (with him H. F. Dickens) contended, on behalf of the prosecution, that apart from any other evidence the continuous user of an engine and trucks of the dimensions described, upon this particular road must of necessity render it less commodious and injuriously interfere with the rights of the public.

HAWKINS, J., in summing up the case to the jury, said, The charge against the defendants is that of obstructing the highway. The prosecution complain that the defendants user of this traction engine and trucks upon this highway rendered it less commodious to the public and created a nuisance. Now, as a matter of law, the defendants were justified in using this road for their traction engine and trucks just as they would be justified in using a turnpike road, but they are not justified in using it in

REO.

CHITTENDEN

AND ANOTHER.

1885.

nuisance to

Traction

engine.

such a manner as to create a nuisance. It has been proved that in certain parts of this road it is dangerous to attempt to drive an ordinary vehicle past a loaded waggon. It is common knowledge that in narrow country lanes vehicles have often to wait in sidings until some other passes them. If, therefore, the only delay created here was such as would have been occasioned if carts had been used instead of the engine and trucks, you Indictment for should find a verdict in favour of the defendants. The Legis- highwaylature has indeed practically sanctioned the use of locomotives on the highway, but there is a set of provisions limiting it and providing for the width and construction of the wheels, and the weight to be allowed and such like. These are to prevent country roads being ploughed up. In this case the point is not pressed that the highway itself is spoilt. The roadway is not said to be less convenient to travel on. What is complained of is, that the defendants placed upon this highway a traction engine and trucks of an unreasonably great size and weight, and that "the line of engine and trucks or waggons so attached one to another was of such unreasonable length as to obstruct the free passage of the said highway." If you come to the conclusion that by the mere use of the engine and trucks as described the road was obstructed, or if, in the management of it by the persons entrusted therewith by the defendants, the road was rendered really less commodious to the public, you must find the defendants guilty. Before doing so, however, you must be satisfied that the obstruction was substantial in character, not merely trivial or occasional. There is nothing in the Acts of Parliament authorising traction engines to be used so as to cause a nuisance. On the contrary by 28 & 29 Vict. c. 83, it is expressly enacted "that nothing in this Act contained shall authorise any person to use a locomotive which may be so constructed or used, as to be a public nuisance at common law." You may take it, then, as law that a locomotive properly used might pass along this road. Ask yourselves whether the defendants during the months of October, November, and December employed their locomotive so as to render the highway less commodious than it ought to have been, having regard to the previous user of it and the right of the public to pass over it. If you find that, in fact, during this period, there was no improper user, that will not prevent an indictment being hereafter presented if at any future time the defendants use their engines on this highway improperly. On the other hand, if you find that there was an improper user during those three months, it does not follow that in future under different regulations, a perfectly lawful user might not take place. The question for you is, was this road substantially interrupted during this period? The obstruction, as I have said, must not be a momentary obstruction, but a substantial and improper interference with the free use of the road by those entitled to use it.

Verdict, Not guilty. Solicitor for the prosecution, J. and J. C. Hayward, D artford. Solicitor for the defendants, Gramshaw, Gravesend.

QUEEN'S BENCH DIVISION.

Tuesday, March 31, 1885.

(Before MATHEW and SMITH, JJ.)

KNIGHT v. BOWERS. (a)

Sale of Food and Drugs Act, 1875 (38 & 39 Vict. c. 63), s. 6— Sale of Food, &c., Act Amendment Act, 1879 (42 & 43 Vict. c. 30), 8. 2-Tradesman supplying different article from that demanded by purchaser.

Sect. 6 of the Sale of Food and Drugs Act, 1875, as interpreted by and read together with sect. 2 of the Sale of Food and Drugs Act Amendment Act, 1879, is not limited to cases of mixing and adulterating only, but applies also to cases where an article entirely different from, and not being of the nature or substance or quality of the article demanded by the purchaser, is supplied by the seller; and therefore a tradesman, who in response to a request for "saffron" supplies a customer with "savin," comes within and is liable to the penalty imposed by sect. 6 of the Act of 1875.

THIS

HIS was a case stated under the 20 & 21 Vict. c. 45, by the stipendiary magistrate for the district of the borough of Stoke-upon-Trent, in the county of Stafford.

At a petty sessions holden at Fenton, in the parish of Stokeupon-Trent aforesaid, on the 24th day of October, 1884, the respondent, Samuel Bowers, a herbalist, carrying on business at Longton, in the said parish, was charged, on an information and complaint preferred and issued against him at the instance of the appellant, Knight, an inspector duly appointed under the Sale of Food and Drugs Act, 1875, for that he, the respondent, did on the 16th day of August, 1884, in the parish of Stoke-upon-Trent, unlawfully sell, to the prejudice of one Sarah Anne Onions, the purchaser, a certain drug, to wit, savin, which was not of the nature, substance, and quality of the article demanded by such purchaser, contrary to the provisions of the statute; and at the hearing of the said information and complaint the following were proved or admitted to be the facts :

On the 16th day of August, 1884, the said Sarah Anne Onions, the purchaser, went to the shop of the respondent Bowers, and then and there demanded of him and requested him to sell to her a quantity of saffron, without any intention of using it for medicine or any other purpose than that of analysis, and did not state to the respondent that it was required for any medicinal purpose.

(a) Reported by HENRY LEIGH, Esq., Barrister-at-Law.

The respondent thereupon then delivered to hor a certain article, for which she paid to him the sum of 3d., the price demanded by him for the said article.

1885.

Immediately on the completion of the purchase the said S. A. Onions informed the respondent that she had made the purchase Adulteration for the purpose of having the article supplied by him analysed of food by the public analyst, and she then thereupon divided it into Different three parts, and delivered one part to the respondent, and the article-Savin supplied for other two parts to the appellant, as such inspector, who duly delivered one of such parts to the public analyst for the county of Stafford.

The public analyst certified that the article supplied was not "saffron," and at the hearing of the information before the magistrate he proved that it was "savin ;" and he, as well also as a doctor of medicine and a pharmaceutical chemist, who were also called and examined as witnesses for the appellant, testified that "saffron" and "savin" were both articles included in the British Pharmacopoeia, but that they were dissimilar in colour, size, shape, and appearance, and had diverse medicinal properties, saffron being used mainly in the treatment of measles, and as a colouring agent, and "savin" being sometimes improperly used in the preparation of a decoction which is administered for the purpose of procuring abortion.

It was not contended or attempted to be proved that the article supplied by the respondent had been in any way adulterated; and it was admitted and proved to be in its natural condition, unadulterated, and not admixed or compounded with any other drug, article, or ingredient.

The appellant relied on the simple fact that "savin," the article supplied by the respondent, was "not of the nature and quality of the article demanded by the purchaser," viz., "saffron." The respondent did not call any witnesses, but contended that, as no adulteration or improper mixture had taken place, the statute did not apply.

The magistrate was of opinion that the respondent's contention was correct, and that the preamble of the repealed Act of 1872 (35 & 36 Vict. c. 74), and that of the Act of 1875 (38 & 39 Vict. c. 63), showed clearly that the only object of the law was to prevent the adulteration of articles of food and drugs, and to insure the selling of them in a pure and genuine condition, and that it was not intended to make it an offence to sell an article that was pure in itself, though it was not the article demanded. Accordingly he dismissed the information and complaint without calling on the respondent to give any evidence.

The question for the opinion of the court was whether the magistrate's decision was right in point of law?

If the court should be of opinion that the decision of the magistrate was right, the information and complaint were to stand dismissed; but, if the court should be of opinion that such decision was wrong, and that the respondent ought to have been

saffron.