Scottish Court of Session Decisions

Clark and Keir for appellant.

Shand and Birnie for respondent.

At advising,

Lord Justice-General—The statutes under which the complaint under appeal is laid must, so far as regards the ends they were intended to serve, be construed liberally; but, in so far as penal, the construction must he strict, putting aside the other points mentioned by Mr Keir, as to which it is unnecessary to say more. The first point to be disposed of is—Whether the Magistrate had jurisdiction as here assumed by him. The complaint is laid under the 18th section of the Nuisances Removal Act, 1856, Part I. Section 10 of that Act confers equal power on the Magistrates as on the Sherifis and Justices; and section 44, which was referred to, does not confer any jurisdiction on the Sheriff more than on the Magistrate, although, by an omission, the form of proceeding thereby authorised is limited to the Sheriff, and does not include Magistrates and Justices. To remedy the restriction thus made, section 447 of the General Police Act made the provisions and procedure in regard to proceedings before, and to appeals from, any order or judgment of the Sheriff apply to proceedings before, and any judgment of any Magistrate or Justice of the Peace. Who has jurisdiction if the Magistrate has not? There are no sections or section confirming jurisdiction which applies to a Sheriff that does not to a Magistrate or Justice, and I am of opinion that jurisdiction was intended to be, and is, equally conferred on all three different classes of judges alike. The next point is as to the relevancy of the complaint as laid. It is laid under section 18, and it is said that the complaint is not within the meaning of the Act, in so far as it does not allege that the hams were exposed for sale. There are some delicate questions which might be raised in regard to the meaning of the Act, and I think, therefore, we ought to decide no more than is necessary for the disposal of the case. It is alleged that the goods were found, inspected, seized, &c., in respect there was probable cause for believing that the same were intended for human food, and were unfit for human food. The Inspector of Nuisance is entitled to enter premises in two events, either where there is exposure for sale, or probable cause for believing that the goods were intended for human food. There is a perfect alternative, and the Act provides that in case any such meat, &c., appear, &c., unfit for human food, the same may be seized, and if it appear to any Magistrate or Justice of the Peace that it is unfit, he may order it to be destroyed. There is a matter of fact to be established, whether exposed or probable cause for believing. Then follows a penalty incurred by the party to whom the meat belongs, or in whose custody the same is found. I am of opinion, therefore, that the complaint is properly laid nnder the Act. I do not give any countenance to Mr Clark's contention that there must be an allegation that at the time of the goods being unfit they must have been intended for food, but think the complaint sufficient.

Lord Cowan—I concur with your Lordship on both points, and have simply to mention that the Act of 1862 subjects the Magistrates or Justices of the Peace to review as well as the Sheriffs.

Lord Deas—There were three points on which I certified this case to your Lordships. 1. As to jurisdiction. 2. The Fiscal's concurrence. 3. Whether the statute applied to wholesale dealers. On questions of jurisdiction I would not have certified the case, as I thought there was jurisdiction sufficient, and I concur in the mode of disposal of that question now proposed by your Lordships. The second point was disposed of last Court-day, and requires no further remarks. As to the third point, it appears to be, though I had an opinion such as has been expressed by your Lordships when the case was before me in Aberdeen, that it was proper to report the point in order to avoid similar questions being raised at other Circuit Courts, and it appeared to me that the complaint was supported on grounds somewhat startling, but I have now to express my entire concurrence in the views expressed by your Lordships. I entertain no doubt that goods of this kind, in the hands of a general dealer, are exposed for sale, and if the complaint had set forth exposure for sale, I apprehend there would have been no difficulty. If it were otherwise, questions would always arise as to who were wholesale and who were retail dealers, and would make the statute quite unworkable; and I am, therefore, of opinion that the Act applies to wholesale as well as to retail dealers. It is objected that it did not say the meat was exposed for sale. Though the question admits of argument, to me it appears that it is not necessary that the goods are for sale, or exposed for sale, the object of the statute being to prevent such unwholesome things being exposed for sale; and I have no doubt, on the face of the complaint, that it is fairly laid under the statute. I give no opinion on any point not necessary to be decided; and, therefore, I give no opinion as to how far the provisions of the Act would or would not affect parties where they are neither wholesale or retail dealers. It is a question of importance, if there may not be a seizure and still the statutory penalty not enforceable; but there is no room for that question here.

Lord Ardmillan—I concur, and have nothing to add, except that I think a great deal of what has been said applies to the merits of the case rather than relevancy. Can it be said that I am entitled to keep unwholesome food? and it may be given to my servants, and are they not entitled to complain? and is not the Inspector entitled to seize such food? In the same way the question may readily arise with the manager of the dietary arrangements in any large establishment.

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