Department of Agriculture and Technical Instruction v Burke

JurisdictionIreland
Judgment Date02 February 1915
Date02 February 1915
CourtKing's Bench Division (Ireland)
Department of Agriculture and Technical Instruction,
Appellants
and
Burke,
Respondent (1).

K. B. Div.

CASES

DETERMINED BY

THE KING'S BENCH DIVISION

OF

THE HIGH COURT OF JUSTICE IN IRELAND,

AND ON APPEAL THEREFROM IN

THE COURT OF APPEAL,

AND BY

THE COURT FOR CROWN CASES RESERVED.

1915.

Weeds and Agricultural Seeds (Ireland) Act, 1909 (9 Edw. 7, c. 31), s. 5 — Wilfully giving False Name and Address — Liability of Master for Wrongful Act of Servant — Mens Rea.

By s. 5, sub-s. 1, of the Weeds and Agricultural Seeds (Ireland) Act, 1909, an officer of the Department of Agriculture and Technical Instruction for Ireland is empowered to enter the shop or other premises of any person who sells agricultural seeds for sowing, and examine and take samples of any agricultural seeds on the premises. By sub-s. 2 the person on whose premises a sample is taken shall, if the officer requires, give the name and address of the person from whom he procured the seeds, and if he refuses to give such name and address, or wilfully gives a false name or address, he shall be guilty of an offence under the Act, and liable on summary conviction to a penalty not exceeding £10.

Held, that the owner of the shop in which the sample is taken is guilty of an offence under the sub-section if such false name and address is wilfully given by the manager of the business, although without the authority or consent of the principal.

The word “wilfully” in the sub-section means “intentionally, and not by mistake or inadvertence.”

Case Stated by justices under 20 & 21 Vict. c. 43.

On the 26th October, 1914, the appellants, as complainants, took out a summons under the Petty Sessions (Ireland) Act, 1851 (14 & 15 Vict. c. 93), against the respondent, as defendant, charging that the defendant “did at her shop, where she kept for sale agricultural seeds, and where Robert W. Parker, who is an officer of the complainants, took a sample of agricultural seeds on the date aforesaid” [the 28th April, 1914] “under sect. 5 (1) of the Weeds and Agricultural Seeds (Ireland) Act, 1909, wilfully give a false name and address of the persons from whom she procured said seeds, to wit, that she procured same from Messrs. John Lytle & Sons, of Belfast, contrary to the provisions of said Act.”

The summons came on for hearing at Tobercurry Petty Sessions, county Sligo, on the 12th November, 1914. Robert Parker, an official sampler employed by the complainants, proved that on the 28th April, 1914, he attended at the defendant's premises in Tubercurry, and then and there explained to the defendant's manager, Bartholomew M'Loughlin, who he was, and what he required, and then took a sample from a hundred-weight bag, alleged to contain English red clover; that he, Parker, then drew M'Loughlin's attention to the poor quality of that seed, and informed M'Loughlin that he was taking the sample for the complainants, and that M'Loughlin said, “I think it will be all right; I do not know very much about the seed trade, that is how it was received from Messrs. Lytle & Sons, Belfast, from whom Mrs. Burke got all her seed”; that M'Loughlin then showed him, Parker, an invoice for seed, in which there was no mention of white clover and that he, Parker, then put the sample of seed into an envelope on which he wrote, in M'Loughlin's presence, the following entries:— “Description of seed: English red clover. Wholesale vendor, John Lytle & Sons, Belfast; retail vendor, Messrs. J. & P. Burke, Tubercurry. Total consignment, 1 bag, 1 cwt. Date of delivery, 4th April, 1914. Number of bags on hands from which sample was drawn, 1. Place of sampling, Messrs. Burke's shop. Retail price, 1s. per lb. Signature of sampler, R. W. Parker.”

Parker further deposed that after he had filled in the official entries, as above, M'Loughlin filled in the certificate on the back of the envelope, and that he, Parker, then sealed the envelope with his official seal, No. 31. The sample was then posted by him, Parker, to the complainants. Parker described the seed as a very inferior sample of red clover mixed with white clover, and in appearance old and maggoty, and stated that the labelled price, 1s. per lb., was the top price in the county for good red clover. The witness produced a sample of the seed which contained maggots, and also produced a letter from the defendant to the complainants in which the former attempted to explain the state of the seed on grounds which the witness swore would not explain the condition of the seed sampled.

The certificate on the envelope filled in by M'Loughlin was as follows— “I hereby certify that the seeds from which the sample was drawn were procured by me from John Lytle & Son, of Belfast, on April 4th, 1914. Signature, B. M'Loughlin. Position, Manager, on behalf of J. and P. Burke.” The letter produced by Parker was as follows:—

“Tobercurry, 16th August, 1914.

Dear Sir,—Tours of the 15th inst. received, A. 17533–14. We beg to say we have made inquiries into the matter referred to. We got all our seeds from Messrs Lytle & Sons, Belfast, and have had nothing but praise as regards their fertility since we commenced selling them four or five years ago. The Department have frequently taken samples before, and never have had any complaint to find with them. With regard to this case of English red clover we had only about one stone of red clover on hands the day the inspector visited our store, as it happened to be outside the door for sale. A few days previously it got accidentally tossed on the floor, and brushed up, which may account for its not being up to the standard. Enclosed is invoice of it, and you can see that the prices of our grass-seeds and clover are up to the standard. We hope, therefore, under the circumstances you will overlook the matter this time, and we will be most cautious as to the safety of our seeds when exposing them for sale in future.

Yours respectfully,

J. & P. Burke.”

W. H. Wherrie, seed-buyer of Messrs. Lytle, deposed that the defendant was a customer of his employers, and got from his firm all her seeds, set out in the invoice of the 4th April, 1914, which he produced; that the only red clover therein mentioned was 1 cwt. of red clover, and the defendant got no white clover from Messrs. Lytle in 1914. The witness further deposed that he inspected in Court the sample taken by Parker, and that it was a mixture of red and white clover—mostly white—with ingredients foreign to red and white clover, and was maggoty and old; and he stated that the sampled seed did not go out in the seed supplied by his firm to the defendant, as appeared from the invoice he produced, that invoice covering all seeds supplied by his firm to the defendants during the year. Witness further deposed that a sample out of the red clover seed, from which the defendant was supplied, had been sent by his firm for analysis to the complainants, and the defendant's explanation in the letter of the 16th August, 1914, could not account for the state of the seed sampled by Parker.

John Breen, an officer of the complainants, deposed that the bags containing the sample taken by Parker, and the sample sent by Messrs. Lytle, were handed sealed and unopened to Dr. Pethybridge, the complainants' analyst.

Dr. Pethybridge, director of the complainants' seed-testing station, deposed that he received the sample taken by Parker, sealed and unopened, and also received the sample sent by Messrs. Lytle in a similar state, and that he analyzed both. Witness deposed, as to the former sample, that a farmer buying it as red clover would get a seed which would only consist of one-sixth red clover; and of this one-sixth, only 7 per cent. was capable, under the most favourable conditions, of growing and producing red clover plants, and, if sold at 1s. a pound, a farmer buying would only get 2d. worth of red clover, of which only one-fourteenth would grow. Witness also deposed that the white clover seed in this sample was dead, and that this sample showed no evidence of having been spilt and swept up again, as the impurities therein were not such as would occur on the floor of a shop. The sample contained maggots, and, besides red and white clover seeds, contained thirty-six varieties of weeds. As regards Messrs. Lytle's sample, witness deposed that that was a good sample, and that the red clover seeds on the sample taken by Parker could not have been supplied out of the stock from which Messrs. Lytle's sample was taken.

No witnesses were called for the defence, but defendant's solicitor submitted that there was no proof that the defendant had made any statement to Robert Parker.

On behalf of the complainants it was contended that it was within the implied scope of the authority of the defendant's manager, M'Loughlin, to answer questions concerning the goods sold by him on behalf of his employer. On behalf of the defendant it was contended that the defendant was not liable for the false statement (if it were false) made by her manager; that the section under which the prosecution was brought was a penal section, and contemplated a wilfully false personal statement.

The majority of the justices, being of opinion that the defendant's contention that she was not liable for the statement of her manager was well founded, dismissed the charge on the merits, and gave judgment against the complainants; but, at their instance, stated the present case for the judgment of the Court as to whether they were correct in point of law in such determination.

The Solicitor-General (James O'Connor, K.C.), with him James Rearden, for the appellants:—

It is recognized that it is a principle of our criminal law that a master should not be held responsible for the unauthorized criminal acts of his servant; but this maxim admits of many exceptions. In the carrying on of business it has been over and over again held that the master is liable for a contravention of a statute relating to such business where the servant to whom the...

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