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excise, was present before the magistrates to conduct, and did conduct, the case on the behalf of the Excise ; Hedges, the officer by whom and in whose name the information had been exhibited, not being present. On its being dismissed, notices of appeal, signed by the said Marks in his own name, and not as the agent of Hedges, were served upon the justices and the respondent, and in due time notice of trial of the appeal at these sessions was served; this notice was signed by Hedges. At the trial of the appeal at the quarter sessions, held for the said borough on the 24th day of June, 1845, it was objected by the counsel for the respondent, that due notice of appeal and of the trial had not been given, the first notice being signed by Marks, and the second by Hedges. The Court overruled the objection, reserving the point. Upon the merits being gone into, the Court found that the respondent was a licensed dealer in tobacco by retail, that he kept a shop in Great Yarmouth, and that upon the 28th of September, 1844, an officer of excise had seized in the respondent's shop, in a drawer, where he kept his tobacco for the purpose of sale, fifty-four and half pounds of manufactured cut tobacco, which, on being subjected to the usual tests, was found to have had added thereto and mixed therewith four per cent. of saccharine matter ; that the adulteration had been made in the course of the manufacture, and not afterwards, and after the respondent had purchased the tobacco of a manufacturer as genuine tobacco, and that the respondent believed that the tobacco seized was genuine, and had no knowledge or causetosuspect that the tobacco he so purchased, and which was seized, had any saccharine matter added to or mixed therewith, or that it had been manufactured in any other way than as directed by law. The Court of Session dismissed the appeal, subject to a case for the opinion of the Court of Exchequer on two points, which were
1st, Whether the notice of appeal was sufficient.
2nd, Whether the respondent had been guilty of the offence charged in the information. The judgment of Quarter Sessions to be quashed or confirmed as the Court might decide upon the above questions. If the order of Sessions should be quashed, then the respondent to be convicted in the mitigated penalty of 501., and the tobacco seized to be forfeited.
Jas. Wilde, for the Crown.-Inthis case there are two distinct questions : first, as to the notice of appeal; second, as to the merits of the case. As to the first question, the Act of Parliament under which these proceedings are taken is the 7 & 8 Geo. 4, c. 53, by section 82 of which Act, it is enacted, " that in case any officer who shall exhibit any information, or any person or persons against whom any information shall have been exhibited, or who shall appear and claim any goods, commodities, or chattels, alleged to be forfeited in any information exhibited before any justice or justices of the peace, as aforesaid, shall feel aggrieved by the judgment given thereon by such justices, it shall be lawful for such officer, or such person or persons, upon giving such notice as hereinafter mentioned, to appeal therefrom to the justices assembled at the next general quarter sessions of the peace, and it shall be lawful for the justices of the peace, at such general quarter sessions, upon being served with such notice, and they are hereby respectively authorized and required, at such general quarter sessions, to hear, adjudge, and finally determine such appeal; and if upon any such, either to the Commissioners of Appeal, or the justices of the peace at quarter sessions, any defect in form shall be found in the information, or in any part of the proceedings thereon, or relating thereto, or in the record thereof, every such defect of form shall thereupon be rectified and amended by order of such Commissioners of Appeal, or of such justices, or the major part of them.” That is the section under which this appeal was made, and, in the latter part, there is a power in the justices to cure any defect of form which may have arisen.
Section 83 points out what notices shall be required to be given. It enacts, “ That no such appeal, as aforesaid, shall be allowed, unless the party or parties appellant shall, at and immediately upon the giving of the judgment appealed against, give notice in writing of such appeal to the Commissioners of Excise, or justices of the peace, respectively, from whose judgment such appeal shall be made, and also to the adverse party or parties, on such appeal, and shall lodge such notice at the office, or with the registrar of the Commissioners of Appeal, or with the clerk of the peace for the justices.” Three notices, therefore, are necessary; one to the justices, one to the defendant, or the adverse party, and the third to be lodged in the office of the clerk of the peace, and these three notices are to be given at the time the judgment is given. It then goes on to provide, “that no such appeal shall be heard unless the party appellant on such appeal shall, within one week, at least, before such appeal is to be finally adjudged, give notice in writing to the adverse party on such appeal, of the time and place where such appeal is to be heard.” This requires, therefore, a fourth notice; but that fourth notice is to be given, not at the time of the judgment being pronounced, but within a certain time, a week before the appeal is to be heard. It is not, in fact, a notice of appeal, but a notice of the appeal being heard. These are the statutory enactments which require the giving of these notices. The question which arises upon these notices is this : the three first notices were given by Marks, anofficer of excise, attending and conducting the proceedings—the information is eshibited by an officer named Hedges; Hedges was absent-Marks attended and conducted the case for the Excise, and hegave the three notices of appeal from the decision of the justices on the 25th of March, when the case was first heard; the last notice was given on the 9th of June, and was signed by Hedges, who filed the information. Certain sections of a subsequent Act provide for the possible absence of an officer at the time of the conduct of the proceedings, and for the giving of the notice of appeal by any officer whatever. See 4 & 5 Wm. 4, c. 51, s. 22; the object of which is no doubt to provide that proceedings should not drop on account of the officer being necessarily absent. By section 23 of the 4 & 5 Wm. 4, c. 51, it will be seen that Marks was entitled, as the substituted officer, to sign the notices of appeal, that section providing distinctly for the prevention of the inconvenience before mentioned. “ Any notice of appeal shall be given by any officer of excise, who shall attend and conduct the proceedings on the part of the revenue of excise, notwithstanding such officer may not be the officer named in the information, as informing or exhibiting the same.” If, then, these notices of appeal are good, the only question remaining is upon the notice at the trial.
It does not appear that because Marks gave the notice of appeal, he is therefore bound to give the notice of trial.
As to the merits of the case, viz., whether the respondent has been guilty of the offence charged. This question arises entirely upon the late statute, 5 & 6 Vict. c. 93, s. 3. The offence charged is, that a dealer in tobacco, that is, a retailer of tobacco, had in his possession tobacco which had been manufactured with something else than water. This Act contains more stringent provisions to protect the revenue than were contained in the Act 3 & 4 Vict. c. 18. This appears from the preamble. The present information is framed upon section 3, which enacts, “That every manufacturer of, dealer in, or retailer of tobacco, who shall receive, or take into, or have in his possession, or who shall sell, send out or deliver any tobacco or snuff which shall have been manufactured with, or
shall have had added thereto, or mixed therewith, or into or amongst which there shall have been put, either before or whilst in process of manufacture, or after being manufactured, or in which there shall be found, on examination thereof, any other material, liquid, substance, matter, or thing than, as respects tobacco, water only, or, in roll tobacco, water and oil only, and, as respects snuff, water, or water and salt, or alkaline salts only, or lime-water in snuff known as Welsh or Irish snuff, shall forfeit 2001.” Now, the word knowingly does not appear in this section, which states simply, that any manufacturer, &c., who has in his possession adulterated goods, shall forfeit 2001. See the Attorney-General v. Lockwood (9 M. & W. 378,) as to the adulteration of beer; and Rex v. Marsh (2 B. & C. 717), decided upon Acts in which the word knowingly is not used.
Crompton, for the defendant.-Great hardship and injustice would be occasioned by a strict application and construction of the statute 5 & 6 Vict. c. 93, which stringent enactment was made to guard against evasion by the guilty, not to oppress the innocent. The notices, however, are quite irregular: this is clear from the 7 & 8 Geo. 4, c. 53, by which statute the appeal is given to a particular person ; and it is only on that person giving notice of the appeal that any appeal can be heard, or is allowed by the Act; the appeal is the creature of the Act, and every thing must be done which the Act says shall be done to give the Court jurisdiction to hear it. By the 82nd section this is only given to the officer exhibiting the information; and the subsequent section shews what shall take place in the absence or death of the officer. The 82nd section says, “ That it shall be lawful for such officer, or such person or persons” (those are the defendants in the information), “ to appeal therefrom to the justices assembled at the next general quarter sessions of the peace (or if there be not one week between the time of giving such notice and the next general quarter sessions), then to the general quarter sessions of the peace next after the expiration of one week.” The provision, “if any defect in form shall be found in the information, or in any part of the proceedings thereon, or relating thereto, or in the record thereof, every such defect of form, &c.,” relates to any defect in form only. This is no defect in form in the information—it is a radical defect—it is the appeal by a wrong person. Then, by the statute, no appeal is to be allowed, unless proper notice is given to the justices, and no appeal is to be heard unless the party or parties appellant on such appeal shall, within one week at least before such appeal is to be finally adjudged and determined, give notice in writing to the adverse party or parties. Unless proper notice of trial has been given, the appeal is not to be allowed; the Court is to dismiss it. Here two notices only were given; for it is not found upon the case that there is any notice to the clerk of the peace.
Wilde.—It is one of the documents appended to the case.
Crompton.—It is not found upon the case that there is any notice to the clerk of the peace. By the 21st section, the proper mode of proceeding is pointed out. "If the officer by whom the information was exhibited shall die or be absent, such information shall not by such death, removal, discharge, or absence of such officer, abate or be diminished, but shall be continued and proceeded in by another officer of excise, in the name of the officer by whom the same shall have been exhibited There have been then two mistakes here: first, by not giving the original notice of appeal on behalf of that party by whom the information was exhibited, and in his name; and, secondly, by giving the notice of trial in the name of Marks, which was done in order to rectify the previous mistake.
Pollock, C.B.--Two questions are submitted for the opinion of the Court in this case. 1st, Whether the notices were sufficient. It appears that Hedges, the informer, was absent ; Marks, who was present, and conducted the proceedings on behalf of the Excise, being dissatisfied with the judgment of the magistrate, gave notice of appeal, signed in his own name, adding that he was the officer of excise attending and conducting the proceedings in this case, on the part of the Commissioners of Excise, and stating that Hedges felt himself aggrieved by the judgment. And the notice leaves no doubt what were the proceedings appealed against, because it says, “ I shall appeal, and do appeal, to the General Quarter Sessions of the Peace to be holden next after the expiration of twenty days from the date hereof, in and for the borough of Great Yarmouth, in the county of Norfolk, from the judgment given this day by William Henry Palmer and William Yetts, Esqrs., being two of her Majesty's justices of the peace for the said borough of Great Yarmouth, in the matter of an information exhibited on behalf of her Majesty, as well as for himself, by one William Hedges, officer of excise, against you, for the recovery of the penalty of 2001.” I am of opinion, that, under the sections referred to by Mr. Wilde, of the 4 & 5 of Wm. 4, c. 51, the information may be continued notwithstanding the absence of the officer; and if it were necessary to decide that the notice should be, in fact, in the name of William Hedges, I think it would be sufficient for that purpose; but I think the 23rd section, containing this passage, “ And any notice of appeal shall be given by any officer of excise who shall attend and conduct the proceedings,” does not apply merely to the case where there are not twenty days between the time of judgment being given by the justices and the next general quarter sessions of the peace, but it applies to all cases where notice is required to be given. I am therefore of opinion that the notices in this case of appeal and trial are sufficient. The notice of the trial is by Hedges himself. The second question is, whether the respondent has been guilty of the offence charged in the information? It appears to me, that in this case, it being within the personal knowledge of the party that he was in possession of the tobacco (indeed a man can hardly be said to be in possession of any thing without knowing it), it is not necessary that he should know that the tobacco was adulterated, for reasons probably very sound, and not only applicable to this case, but to many other branches of the law. Persons who deal in an article are made responsible for its being of a certain quality. If this were a case of provisions, or of any matter that affected the public health, it would not be at all unreasonable to require persons dealing in them to be aware of their character and quality, and to be responsible for their goodness, whether they know it or not; they are bound to take proper care, and it therefore appears to me, that the section referred to, which creates this offence, namely, the 3rd section of the 5 & 6 Vict. c. 93, applies to this case, whether the party knew it or not. It may be said that, in this particular instance, the statute works a great hardship, because it is expressly found that the magistrates who in the first instance dismissed the information in the Court of Quarter Sessions, and who thereby decided in favour of the defendant, were of opinion that he personally had 'no knowledge of this violation of the law. If the law in a particular case works any hardship, it is either for the legislature to alter the law, or for the executive department of this branch of the revenue laws to abstain from calling for the enforcement of the statute. But if we are called upon to put our construction upon it, I believe we are all of opinion that the due construction of the 3rd and 4th sections is, that the tobacco was forfeited, and that the party was liable to the penalty, whether he was or not aware that the commodity had been adulterated in the manner in which this turns out to be. In reality, a prudent man who conducts his business will take care to guard against the injury he complains of, and which Mr. Crompton says he has a right to complain of, and he would not be exposed to it. If he examines the article, he may reject it, and not keep it in his possession; or if he is incompetent to do that, he may take a guarantee that shall render the person with whom he is dealing responsible for all the consequences of a prosecution. There was another point made by Mr. Wilde upon which I abstain from offering any opinion; it becomes unnecessary. I should be very sorry unnecessarily to say, that this Court would give effect to a conviction where there had been notices before the magistrates, but where really, from the nature of the notices, they had no right to entertain the case at all. It does not appear to me to be necessary to remark upon that part of the case. I think the notices that were delivered are sufficient within the statute, and that the offence against which the clause of the Act is directed is fully brought home to the defendant.
PARKE, B.- I quite agree with the Lord Chief Baron in the remarks which he has made upon this case. There is a satisfactory answer given to the objection as to the notice of appeal, by looking at the two sections of the 4 & 5 Wm. 4, sections 22 & 23; and as to the notice of trial, that is strictly according to the original Act upon which the appeal is brought. With respect to the offence itself, I have not the least doubt that the ordinary grammatical construction of this clause is the true one. It is very true that, in particular instances, it may produce mischief, because an innocent man may suffer from his want of care in not examining the tobacco he had received, and not taking a warrant ; but the public inconvenience would be much greater if, in every case, the officers were obliged to prove knowledge. They would be very seldom able to do so. The legislature has made a stringent provision for the purpose of protecting the revenue, and has used very plain words. If a man is in possession of an article, as the defendant was in this case, and that article falls within the terms mentioned in the statute, there is no question but that the offence is proved. If there is any hardship in the case, it does not rest with those who have only to carry the law into effect. There is a provision in the Act, moreover, which enables the commissioners to meet such a case. I have not the least doubt but that the defendant has been guilty of the offence described in the third section. With respect to the other point referred to by the Lord Chief Baron, it is unnecessary for me to give any opinion.
ALDERSON, B.- I am of opinion that the notices are quite sufficient. They are given by Marks, as the officer of excise. The notice states, that it relates to an information exhibited by Hedges in respect of himself, and for the Queen ; and it states that Hedges feels himself aggrieved by the decision. Surely, these things put together are sufficient-in a case, too, in which the notices are not to be set aside, but are to be amended in all matters of form. Marks acts under the provisions of the Act, by which one officer in the absence of another is empowered to act for that other officer ; but I think the twentythird section relieves us from any difficulty which might arise upon that. The notices are therefore quite regular, and therefore the judgment of the Court is right on that point. As to the merits of the case, I think the Court are wrong, because the words of the Act, though they are no doubt very stringent, are nevertheless very clear, and any retailer of tobacco who has an adulterated article in his possession is liable to the penalty. I cannot say that the defendant had not the tobacco in his possession, because he clearly had it, and knew that he had it. He did not know it was in an adulterated state, but he knew he had it in his possession ; and it appears to me that knowledge is implied in the word possession ; that is, a man has not in his possession that