Tippett v. Hart.

also occupies by his bailiff a house at Stalls Valley Farm. The proviso is in favour of cottagers and small holders, and is personal. It has no reference to the house where the brewing takes place. If it had, the occupier of a mansion worth 300l. a year might brew in his lodge and escape duty.

Grafton, for the respondent.-The words of sub-section 3 of section 33 are, "provided the annual value of the house occupied by the brewer does not exceed ten pounds." The house means the house in which he brews; otherwise it would be a house. The Court will construe a taxing and penal Act liberally in favour of the subject, especially when, as in this case, there is perfect bona fides.

POLLOCK, B.-The question in this case arises in an information for not entering quantities in a brewing paper under the Inland Revenue Act, 1880. The respondent occupies two houses, one of the annual value of 201. and the other below 107., and the charge is in respect of brewing in the house below 102. His contention is that he is exempt on the ground that the annual value of the house occupied by him does not exceed 107. within the meaning of the proviso to the 33rd section. I cannot see the force of the argument. It was intended to get at the status of the man who brews, and it is laid down that if he occupies a small house he is not to pay so much. It is immaterial where he brews his beer. A gentleman of property might desire to brew in a house under the value of 10. for the domestic use of a large mansion and of the farm labourers on a large estate. This could never have been intended. I therefore am of opinion that the Justices were wrong, and the case must go back to them with the answer to the question asked, that the order of dismissal was bad.

HUDDLESTON, B.-I confess to having considerable doubt about this case, but not sufficient to make it necessary that I should dissent. I cannot help thinking that there is great force in the argument, looking at the sections in question. The brewer is authorised to brew only in the house occupied by him (1); then if the

(1) By section 15 of the Customs and Inland

annual value of the house occupied by him does not exceed 107., he is not chargeable with duty, which looks as if the house where the brewing takes place was intended. But the difficulty that, if this were so, a large proprietor might evade the duty by brewing in a small house, makes me not sufficiently strong in my doubts to differ from the judgment of the Court.

NORTH, J.-The question is, whether the respondent is a person the annual value of whose house does not exceed 10., and the facts are, that one house occupied is below and another above that value. We are asked to read in the words "in which he brews" after "house," but by subsection 2 of section 34, the brewing may take place in a house gratuitously lent to him. If a house is gratuitously lent, the proviso to section 33 cannot mean that house, and therefore is not confined to the house in which the brewing takes place. I do not think we can introduce the words suggested.

Appeal allowed.

Hiscocks v. Jermonson.

1866 and 1880, is living in a house resided in or frequented by prostitutes for the purpose of prostitution, the magistrate is bound to make an order for his or her removal to an industrial school, even although such child is living in such house with his or her mother who is not a prostitute. The consent of the mother to such removal is not necessary.

This was a Special Case stated on mandamus by a police magistrate, from which it appeared that an application was made to Thomas William Saunders, Esq., one of the Metropolitan police magistrates, by William Hiscocks, an officer of the School Board of London, for an order under the Industrial Schools Act, 1866 (29 & 30 Vict. c. 118), s. 14 (1), and the Industrial Schools Amendment Act, 1880 (43 & 44 Vict. c. 15), s. 1 (2), that one Minia Jermonson should be sent to the Alresford Industrial School, and the magistrate declined to make such order, believing that the facts as stated did not bring the case within the Acts above mentioned. On the 20th day of June, one William Hiscocks, an officer of the School Board of

(1) Industrial Schools Act, 1866 (29 & 30 Vict. c. 118), s. 14 :-" Any person may bring before two Justices or a magistrate any child apparently under the age of fourteen years that comes within any of the following descriptions -namely, .

"The Justices or magistrate before whom a child is brought as coming within one of those descriptions, if satisfied on enquiry of that fact, and that it is expedient to deal with him under this Act, may order him to be sent to a certified industrial school."

(2) Industrial Schools Amendment Act, 1880 (43 & 44 Vict. c. 15), s. 1:-" Section fourteen of the Industrial Schools Act, 1866, and section eleven of the Industrial Schools Act (Ireland), 1868, shall be respectively read and construed as if after the four several descriptions therein respectively contained there were added the following descriptions, namely,-

London, brought before the said magistrate one Minia Jermonson, a girl of the age of nine years, and upon enquiring of him how he got possession of the child, he said that he went, accompanied by a police officer, to the house No. 6 Ship Alley, where the girl was living with her mother, and in a room in which the mother and girl were alone he took possession of the girl; and although the mother at first. objected to his taking her daughter away, he took possession of her and brought her before the magistrate.

Upon the application, the said William Hiscocks deposed that the said girl lived with her mother in a room at No. 6 Ship Alley, which he knew as a brothel, that the said mother was then a lodger there, and that seven other women lived in the same house; that he had seen the said seven women soliciting prostitution from sailors, and that he had seen them take back into the house different men at different times.

Stephen White (Sergeant H.) deposed that he had known the house No. 6 Ship Alley, and that it was frequented by prostitutes of the lowest character, and that there were seven women living in the house.

No evidence was given of any act of prostitution on the part of the mother of the child, nor that she was conducting herself as a prostitute.

It was contended on the part of the applicant that the child in question was within the words and meaning of the said Industrial Schools Act, 1866 (29 & 30 Vict. c. 18. s. 14 (1), and the Industrial Schools Amendment Act, 1880 (43 & 44 Vict. c. 15), s. 1 (2), as "living or residing in a house resided in or frequented by prostitutes for the purpose of prostitution."

"That is lodging, living or residing with common or reputed prostitutes, or in a house resided in or frequented by prostitutes for the purpose of prostitution;

Hiscocks v. Jermonson.

tection of its mother who is its lawful guardian; and that if the section could have the construction contended for, all the young children of persons who either keep or live in brothels might be taken from them by any one, and against the will of their parents, and be sent to industrial schools. The said magistrate was further of opinion that the section does not contemplate the taking of a child from the custody of its mother for the purpose of sending it to an industrial school without her consent, or without giving her an opportunity of shewing cause to the contrary.

Jeune, for the appellant.-The very ground on which the magistrate refused to act, namely, that "if the section were construed as it was intended it should be, all the young children of persons who either keep or live in bawdy-houses might be taken from them by any one," is what the Legislature intended. There is no exception or restriction on the section that makes the mother's consent necessary. By the Industrial Schools Amendment Act, 1880 (43 & 44 Vict. c. 15), s. 1 (2), the Industrial Schools Act, 1866 (29 & 30 Vict. c. 118), s. 14 (1), is to be read as though the words "in a house resided in or frequented by prostitutes for the purpose of prostitution" were added.

No one appeared for the respondent.

MANISTY, J.-I think this case must be sent back to the magistrate, with an intimation that he was wrong in refusing to make the order. We must give effect to the plain and ordinary meaning of the Act, which intended to protect young children in certain circumstances set out in the Industrial Acts, 1866 and 1880, and I think that if those circumstances are shewn to exist the magistrate is bound to order the child to be sent to an in dustrial school. The Industrial Schools Act, 1866 (29 & 30 Vict. c. 118), s. 14 (1). is as follows [His Lordship then read the section], and is extended by the Industrial Schools Act Amendment Act (43 & 44 Vict. 15), s. 1 (2), which gives "any person the power to bring before a magistrate a child, apparently under the age of

fourteen years, who is living or residing in a house resided in or frequented by prostitutes for the purpose of prostitution." In this ca e it was proved that the child was under the age of fourteen years, namely, nine years, and that she was living in a house frequented by and resided in by prostitutes. The magistrate thought that because the child in question was residing in such a house with her mother, he had no jurisdiction to make such an order; but I find no such exception as "unless the mother of the child be living in the same house" in the statute, and I cannot import them into it; nor would I import such a limitation, unless compelled, as I think it would defeat the object of this most salutary legislation for the protection of young children so to restrict these clauses.

MATHEW, J.—I am of the same opinion. It is clear that the order should have been made, and to hold otherwise and admit such an exception as is here contended for would be to put a restriction on it in favour of persons whose conduct is more deserving of punishment than of assist

Adulteration of Food-Notice that Spirits sold are diluted- "Gin" more than thirtyfive per cent. under proof-Printed Notice -Sale of Food and Drugs Act, 1875 (38 & 39 Vict. c. 63), ss. 6, 8-Sale of Food and Drugs Act Amendment Act, 1879 (42 & 43 Vict. c. 30), 8. 6.

The vendor of spirits diluted to below the amount under proof allowed by the Sale of Food and Drugs Act Amendment Act, 1879 (42 & 43 Vict. c. 30), 8. 6, is not

Gage v. Elsey. precluded by that Act from any defence open to him under the Food and Drugs Act, 1875 (38 & 39 Vict. c. 63), s. 6, and may shew that the purchaser had notice by a printed notice drawn to his attention that the spirits sold to him were mixed or diluted.

This was a Case stated by the Justices of the peace in and for the county of Essex under the statute 20 & 21 Vict. c. 43, from which it appeared that on the 4th day of September, 1882, information was laid before one of Her Majesty's Justices of the peace for the said county by Thomas Elsey, superintendent of police and inspector under the Sale of Food and Drugs Act, 1875, against William Gage, of Braintree, innkeeper, the appellant, for that on the 11th of August, 1882, at Braintree, in the said county, the said William Gage "did unlawfully sell to the said Thomas Elsey, to the prejudice of the purchaser, a certain article of food, to wit, three pints of gin, which was not of the nature, substance and quality of the article demanded by such purchaser."

On the said 13th day of September, the said Thomas Elsey and William Gage appeared before the magistrates, and it was proved

That the said Thomas Elsey was a person duly charged with the execution of the Sale of Food and Drugs Act,

1875.

That on the 11th day of August, 1882, the said Thomas Elsey, the respondent, went to an inn kept by the said William Gage, and asked for some gin. Gage, the appellant, said, "What sort do you want?" Respondent said, "The same as you sell to the public." Appellant said, "I have different sorts.' Respondent pointed to a cask and said, "What is that?" Appellant said, "Gin." Respondent said, "I will have three pints of that." Appellant said, "That is what we sell to the public, and there is our notice." The appellant thereupon pointed to a notice hanging up in the room, which was to the following effect: "Notice. All spirits sold in this establishment are of the same superior quality as here

tofore, but to meet the requirements of the Food and Drugs Adulteration Act they are now sold as diluted spirits. No alcoholic strength guaranteed." Appellant then supplied three pints of gin, and respondent paid 5s. for it, and said, "I have bought this for the purpose of having it analysed by the public analyst." The gin was put into three bottles and sealed. One bottle was left with the appellant, one afterwards delivered to Mr. Thomas Alexander Pooley, the analyst appointed for the county of Essex by the Justices of the peace in quarter sessions assembled, and the third was retained by the respondent.

The report of Mr. Pooley, the county analyst, was read as follows: "The Sale of Food and Drugs Act, 1875 (38 & 39 Vict. c. 63). Certificate to Superintendent Elsey, Braintree. I, the undersigned, public analyst for the county of Essex, do hereby certify that I received on the 12th day of August, 1882, from yourself a sample of gin marked X for analysis (which then measured about one pint), and have analysed the same, and declare the result of my analysis to be as follows: I am of opinion that the same contains 59 per cent. of proof spirit, and is therefore 40 degrees under proof—that is, it has been diluted with water so as to reduce its strength to five and a half (5) degrees under the minimum strength allowed by the amending Act of 1879. As witness my hand, this 24th day of August, 1882, T. A. Pooley, B.S.F.C.S., at 5 Bond Street, Walbrook, London, E.C."

It was urged for the appellant that inasmuch as at the time the respondent purchased the gin a notice to the effect that it was sold as diluted spirit was hanging up in the room, and the attention of the purchaser was specially directed to it, the sale was not to the prejudice of the purchaser, and the appellant was entitled to have the information dismissed.

The Justices held that the notice hanging up in the room, and the defendant's statement with regard to it, did not justify the sale, and convicted the appellant, and adjudged him for his said offence

Gage v. Elsey.

to forfeit the sum of 21., and 12s. 6d. for costs.

C. E. Jones, in support of the appeal.The fact that the goods sold were sold as diluted spirits was brought to the notice of the purchaser, and he is not prejudiced by the sale; therefore there was no offence -Sandys v. Small (1).

Grubbe, for the respondent. -The Act of 1879 (42 & 43 Vict. c. 30), s. 6 (2), practically prohibits the mixing of water with spirits beyond a certain amount, and in the case of gin 35 per cent. If the dilution be less than 35 per cent., that statute gives a good defence; if more then there is no defence. If it is called "gin it must not be more than 35 per cent. under proof. The question of notice does not affect the point.

MANISTY, J.-This is an appeal against the decision of the magistrates of Bocking, in Essex, who convicted the appellant of an offence against the Adulteration Acts. The analyst found that the article sold as gin was 40 per cent. under proof, and consequently 5 per cent. below the strength allowed by the Act of 1879. Probably, therefore, the magistrates thought there was no defence. They do not find as to whether there was fraud or not, which confirms this view. Section 6 of the Act of 1875 (3) provides that "no

(1) 47 Law J. Rep. M.C. 115; Law Rep. 3 Q.B. D. 449.

(2) 42 & 43 Vict. c. 30. s. 6: "In determining whether an offence has been committed under section 6 of the said Act by selling, to the prejudice of the purchaser, spirits not adulterated otherwise than by the admixture of water, it shall be a good defence to prove that such admixture has not reduced the spirit more than 25 degrees under proof for brandy, whisky or rum, or 35 degrees under proof for gin."

(3) 38 & 39 Vict. c. 63. s. 6: "No person shall sell to the prejudice of the purchaser any article of food or any drug which is not of the nature, substance and quality of the article demanded by such purchaser under a penalty not exceeding twenty pounds; provided that an offence shall not be deemed to be committed

66

person shall sell to the prejudice of the purchaser any article of food or any drug which is not of the nature, substance and quality of the article demanded by the purchaser," under a penalty of not exceeding 201.; but there is a proviso in section 8 (3) that no person shall be guilty of any such offence as aforesaid in respect of the sale of an article of food or a drug mixed with any matter or ingredient not injurious to health and not intended fraudulently to increase its bulk, weight or measure, or conceal its inferior quality, if at the delivering such article or drug he shall supply to the person receiving the same a notice by a label distinctly and legibly written or printed on or with the article or drug to the effect that the same is mixed." Since that Act it has been held in the case of Sandys v. Small (1) that unless the sale be to the prejudice

under this section in the following cases, that is to say :

"1. Where any matter or ingredient not injurious to health has been added to the food or drug because the same is required for the production or preparation thereof as an article of commerce, in a state fit for carriage or consumption, and not fraudulently to increase the bulk, weight or measure of the food or drug, or conceal the inferior quality thereof;

"2. Where the drug or food is a proprietary medicine, or is the subject of a patent in force, and is supplied in the state required by the specification of the patent.

"3. Where the food or drug is compounded as in this Act mentioned.

"4. Where the food or drug is unavoidably mixed with some extraneous matter in the process of collection or preparation."

Section 8: "Provided that no person shall be guilty of any such offence as aforesaid in respect of the sale of an article of food or a drug mixed with any matter or ingredient not injurious to health, and not intended fraudulently to increase its bulk, weight or measure, or conceal its inferior quality, if at the time of delivering such article or drug he shall supply to the person receiving the same a notice, by a label distinctly and legibly written or printed on or with the article or drug, to the effect that the same is mixed."