REG. V. BURGESS. 1885. justice, in the old Gothic constitutions, was liable to the most severe and infamous punishment, and the Salic law, Latroni eum similem habuit, qui justum celare vellet, et occulte sine judice compositionem ejus admittere.'" Now those words are singularly clear, and are quite general, and Sir William Black- Compounding stone seems to have thought that this definition in the Salic law felony-Indictwas a sound one, and, as I construe his words, to have thought ment-Abstenthat the offence of theft-bote or compounding a felony could be tion from prosecution not committed by others than the owners of stolen property. Other allegedmen might draw opposite conclusions, and I admit that it is Offence by capable of argument; but, to my mind, Sir William Blackstone had present to him, when he made use of those words, the possibility of persons other than the owner of the goods compounding the offence, and in my mind his words include anyone who has as here secretly agreed to shield a thief. For these reasons, therefore, I am of opinion that this conviction should be affirmed. DENMAN, FIELD, HAWKINS. and WILLS, JJ. were of the same opinion. Conviction affirmed. Solicitors for the prosecution, The Solicitors to the Treasury. Solicitor for the prisoner, T. W. Bilton. other than owner of stolen property. QUEEN'S BENCH DIVISION. Wednesday, June 10, 1885. (Before MANISTY, MATHEW, and WILLS, JJ.) WAYE (app.) v. THOMPSON (resp.). (a) Public Health Act, 1875 (38 & 39 Vict.), c. 55, s. 117-Unsound meat-Punishment of offender-Admissibility of evidence of unsoundness before justice empowered to convict. By the 117th section of the Public Health Act, 1875 (38 & 39 Vict. c. 55), if it appears to the justice that any animal carcase, meat, &c., seized by any medical officer of health or inspector of nuisances under the 116th section of the Act, and carried away to be dealt with by a justice, is diseased or unsound, or unwholesome or unfit for the food of man, he shall condemn the same, and order it to be destroyed or so disposed of as to prevent it from being exposed for sale or used for the food of man; and the (a) Reported by J. SMITH, Esq., Barrister-at-Law. WAYB V. THOMPSON. 1885. Unsound meat -Evidence before con. victing justices -Inquiry as to unsoundness of meat pre demned, person to whom the same belongs or did belong at the time of exposure for sale, or in whose possession or on whose premises the same was found, shall be liable to a penalty not exceeding 201. for every animal carcase or fish, or piece of meat, flesh, or fish so condemned, or, at the discretion of the justice, without the infliction of a fine, to imprisonment for a term of not more than three months, and the justice who, under this section, is empowered to convict the offender may be either the justice who may have ordered the article to be disposed of or destroyed, or any other justice having jurisdiction in the place. viously con- Certain meat having been seized by an inspector of nuisances and condemned and ordered to be destroyed by a justice, an information was preferred under the above section against T., in whose possession it was found, who, on the hearing thereof, proposed to call evidence as to the soundness of the meat. This was objected to on the ground that the question of soundness had already been adjudicated upon by the justice who condemned the meat, but the justices overruled the objection, and heard the evidence. Held, on case stated, that the justices were right. THIS HIS was a special case stated under 20 & 21 Vict. c. 43, by justices of the county of Cumberland, for the opinion of the court. The case was, so far as material, as follows: At a petty sessions holden at Millom, in the division of Bootle, in the county of Cumberland, on the 8th Nov., 1884, a certain information was preferred by Henry Waye, the inspector of nuisances for the local board for the district of Millom, hereinafter called the appellant, against William Henry Thompson, butcher, hereinafter called the respondent, under sect. 117 of the Public Health Act, 1875 (38 & 39 Vict. c. 55) alleging that the appellant did, on the 21st Oct., 1884, by virtue of and in accordance with the provisions in that behalf of the Public Health Act, 1875, inspect and examine certain meat (that was to say) fourteen pieces of the carcase of a cow, in or upon the premises of the respondent; that the said meat was then in possession of the respondent, and was exposed for sale on the said premises, and was intended for the food of man; that the said meat then was diseased, unsound, unwholesome, and unfit for the food of man; and that the said appellant did thereupon seize the said meat by virtue of the said Act, and prayed that the said meat might be condemned and ordered to be destroyed, or so disposed of as to prevent it from being exposed for sale or used for the food of man. Upon the hearing of the said information, the following facts were proved, viz., that the said meat was in the possession of, and exposed for sale by, the respondent, and was intended for the use of man; that it was seized by the appellant on the 21st Oct., 1884, and on the same day taken before a justice of the peace for the county of Cumberland, and that it appearing to WAYE v. THOMPSON. 1885. Unsound meat meat pre demned. him on an ex parte statement not on oath that such meat was diseased, unsound, unwholesome, and unfit for the food of man, he did thereby condemn the said fourteen pieces of meat, and ordered the same to be destroyed or so disposed of as to prevent the same from being exposed for sale, or used for the food of On the following day, however, the said justice, at the Evidence request of the respondent, directed the appellant not to destroy before con the carcase of meat until the owner could have it inspected by a victing justices -Inquiry as to veterinary surgeon, which inspection was accordingly made unsoundness of by witnesses on respondent's behalf. The appellant then called witnesses to prove that the said meat was diseased, viously conunsound, unwholesome, and unfit for the food of man. The respondent thereupon proposed to call the witnesses who, by permission of the said justice, had inspected the said meat on the respondent's behalf, and also other witnesses, some of whom had seen the cow before it was slaughtered and after it had been dressed, and others who had seen other portions of the carcase of the cow from which the alleged diseased meat had been cut some time before, and others after the same had been condemned by the said justice, including medical and veterinary men, and other witnesses, who alleged that they had partaken of meat from the same animal. This testimony was objected to by the appellant on the following grounds: That the question of the said meat being diseased, unsound, unwholesome, and unfit for the food of man had already been adjudicated upon and decided in the affirmative by a justice of the peace for the said division, on an ex parte proceeding, evidence of which had been presented to us; that evidence to the contrary should not be admitted by us; that the evidence adduced and furnished to us by the appellant was sufficient to justify a conviction of the respondent under the 117th section of the Public Health Act, 1875, for the offence alleged against him. We, however, overruled the said objections, and heard the evidence of the defendant's witnesses, which satisfied us that the said meat was not diseased, but was wholesome, sound, and fit for the food of man, and gave our decision against the appellant, and ordered him to pay to the respondent the sum of 71. 7s. 6d. for his costs incurred by him on that behalf. The 116th and 117th sections of the Public Health Act, 1875 (38 & 39 Vict. c. 55) are as follows: 116. Any medical officer of health or inspector of nuisances may at all reasonable times inspect and examine any animal carcase, meat, poultry, game, flesh, fish, fruit, vegetables, corn, bread, flour, or milk exposed for sale, or deposited in any place for the purpose of sale, or of preparation for sale, and intended for the food of man, the proof that the same was not exposed or deposited for any such purpose, or was not intended for the food of man, resting with the party charged; and if any such animal carcase, meat, poultry, game, flesh, fish, fruit, vegetables, corn, bread, flour, or milk appears to such medical officer or inspector to be diseased, or unsound, or unwholesome, or unfit for the food of man, he may seize and carry away the same himself or by an assistant, in order to have the same dealt with by a justice. 117. If it appears to the justice that any animal carcase, meat, poultry, game, flesh, fish, fruit, vegetables, corn, bread, flour, or milk so seized is diseased, or unsound, or unwholesome, or unfit for the food of man, he shall condemn the same, and order it to WATE v. THOMPSON. be destroyed, or so disposed of as to prevent it from being exposed for sale or used for the food of man; and the person to whom the same belongs or did belong at the time of exposure for sale, or in whose possession or on whose premises the same was found, shall be liable to a penalty not exceeding twenty pounds for every animal carcase, or fish, or piece of meat, flesh, or fish, or any poultry or game, or for the parcel of fruit, vegetables, corn, bread, or flour, or for the milk so condemned, or, at the discretion of Unsound meat the justice, without the infliction of a fine, to imprisonment for a term of not more -Evidence than three months. 1885. before conThe justice who, under this section, is empowered to convict the offender, may be victing justices either the justice who may have ordered the article to be disposed of or destroyed, or -Inquiry as to any other justice having jurisdiction in the place. unsoundness of meat pre demned. V. Fitzgerald for the appellant.-It was not competent for the viously con- justices to receive evidence of the soundness or unsoundness of the meat, that being res judicata. Such a course would, in fact, amount to an inquiry as to whether the justice who condemned the meat was right in so doing, and it cannot be intended that a court of summary jurisdiction should be a court of appeal from the justice who condemned the meat. [MATHEW, J.-Is the offence, then, the exposing for sale meat which is not in fact unwholesome, but which someone has said is unwholesome ?] In White v. Redfern (41 L. T. Rep. N. S. 524; 5 Q. B. Div. 15) it was held that meat might be taken before a justice under these sections and condemned, without any summons or notice to the person to whom it belonged, and that such person having been, subsequently to the destruction of the meat, summoned and convicted of an offence under these sections, such conviction was good. Field, J. in that case actually discussed the point raised here, and decided that, however strong a measure it might be to deprive a man of the opportunity of being heard, the Legislature had in this case done so. "I feel," he says, "very strongly the possible injustice that might be done by depriving a man of his property without giving him an opportunity of being heard, and without giving him compensation if not himself in default; and it would require very strong words in an enactment to lead me to the conclusion that it was intended that this might be done;" and then he goes on to examine these sections, and finally decides that "the responsibility of the duty is imposed on the medical officer of health or inspector of nuisances of satisfying himself that the article is exposed for sale, and intended for the food of man, and if he is so satisfied, he may seize." "Then is he bound," he continues," to give notice to the owner before proceeding to apply to a justice to condemn the article so seized? It is contended that he is bound to give such notice. Ordinarily such a proceeding would be necessary. The Legislature generally cannot be considered to have intended that a man's property may be destroyed without giving him an opportunity of being heard; but here the paramount object would appear to be the speedy destruction of a noisome and unwholesome thing. There is nothing in the words of the 117th section, which gives power to the magistrate to condemn the article seized, to lead to the conclusion that he is to hear anybody. All he has to do apparently is to inspect the article, and, if he is satisfied that it is unsound or unwholesome, he is to condemn the same and order it to be destroyed, or so disposed of as to prevent it from being used for food." The Legislature has, therefore, for its own purposes placed the decision of this matter arbitrarily in the hands of the justice, and, as the court of summary jurisdiction cannot be a court of appeal from him, the party charged may give evidence that the meat was not his, or was not exposed for sale, but as to the soundness or unsoundness of it the case is concluded against him. [WILLS, J.-Why should not this point also be open to the party charged in the ordinary way? It is certainly against the general rule to send a man to prison for a matter on which he is not heard.] The only reason is that the statute says that that point is to be decided by a justice, who need not hear him on it. [MATHEW, J.-Suppose the sanitary inspector were to come forward and say he was sorry he had made a mistake?] The summons would be withdrawn. The sanitary inspector is constituted a judicial officer by the Act. [MATHEW, J.-Is it usual to place a man's liberty arbitrarily in the power of a judicial officer of this description ?] In Vinter v. Hind (48 L. T. Rep. N. S. 359; 10 Q. B. Div. 63), it is taken for granted all through that the question rests with the sanitary inspector and justice. [WILLS, J.-There the words of the statute were not satisfied.] There are other sections also in which it is undoubtedly intended that the justice should act ex partee.g., the 124th section, which empowers a justice to make an order for the removal of infected persons to a hospital. Besides, Stephen, J., at the end of his judgment in Vinter v. Hind (ubi sup.), gives an express opinion in favour of the construction contended for by the appellants." A further observation," he says, "is that, suppose there had been a regular seizure under sect. 116, and a regular condemnation by a justice under sect. 117, and that then the person to whom the meat belonged had been summoned before the justices, could he have been heard to say on that summons that the meat was not in fact unsound? It appears to us that he could not, for the discretion of the justice on that is to be taken to be conclusive, and if the person summoned could only dispute the unsoundness, that is a strong ground to support our construction of the Act." [MANISTY, J.-The object of the 116th section is, as Field, J. says in White v. Redfern (ubi sup.), the speedy abatement of the nuisance; but, the nuisance having been abated, why should not the party charged be allowed to contest the unsoundness of tho meat when he is charged with the offence?] The offence is having in possession and exposing for sale the meat so condemned. [WILLS, J.-But is it not a condition precedent to the conviction that the meat must be diseased and unfit for food?] There is no authority to the effect that a decision of a judicial officer is capable of being reviewed by any court but a court of appeal. [WILLS, J.-Is there any decision to the effect that a man may be sent to prison for three months without being heard? WAYE v. THOMPSON. 1885. Unsound meat before convicting justices - Inquiry as to unsoundness of meat previously condemned. |