Field, Gavin Low, Ltd v (No. 1)

• Jurisdiction: Ireland
• Judgment Date: 19 December 1942
• Date: 19 December 1942
• Court: Supreme Court

Gavin Low, Ltd. v. Field.

GAVIN LOW, LTD.

and

WILLIAM FIELD (1)

Supreme Court

Contract - Illegality - Purchase of cow exposed for sale for human consumption - Animal unfit for human consumption - Offence punishable under Public Health (Ir.) Acts - Necessity for condemnation of animal by Peace Commissioner before conviction - Public Health (Ir.) Act, 1878 (41 & 42 Vict. c. 52), ss. 132, 133 - Public Health Acts Amendment Act,1890 (53 & 54 Vict. c. 59), ss. 12, 28 - Courts of Justice Act, 1924 (No.10 of 1924), s. 88, sub-s. 3 (g).

Where any animal intended for human consumption is exposed for sale and is condemned by a Peace Commissioner as unsound, the person to whom the same belongs, or did belong, at the time of such exposure is liable to conviction under s. 133 of the Public Health (Ir.) Act, 1878, as amended by sects. 12 and 28 of the Public Health Acts Amendment Act, 1890, whether he is, or is not, aware of the unsoundness of the animal.

F., a butcher, purchased from G. L., Ltd., cattle salesmen, a cow which was then being exposed for sale by them for human consumption. F. gave G. L., Ltd., his cheque in part payment for the animal, which was later found by a sanitary inspector to be unfit for human consumption. F. thereupon stopped payment of his cheque. The animal was destroyed by the sanitary authority but was not condemned as provided by the Acts. In an action by G. L., Ltd., against F. for the amount of the said cheque, it was contended for the defendant that, by reason of the penal provisions of the above-named Acts, the sale of such an animal was impliedly prohibited and the said cheque was given for an illegal consideration and the amount thereof was irrecoverable in law.

Held by the Supreme Court (Sullivan C.J., Murnaghan and Geoghegan JJ.; Meredith and O'Byrne JJ. dissenting) that, on the construction of the above sections of the Public Health Acts, the said cheque was not given for an illegal consideration.

Per Sullivan C.J.: The Court must be satisfied that the contract for sale and the exposure for sale should be regarded as together constituting one unlawful transaction, and as the connection between the unlawful exposure for sale and the sale did not amount to a unity of design and purpose, such that the sale was part of one entire unlawful scheme, the contract for sale was not an illegal contract, and the cheque upon which the plaintiff sued was not given for an illegal consideration.

Per Murnaghan J.: There was no condemnation of the animal, which was essential before a penalty could be imposed, and in the absence of such condemnation, no illegality had been shown to have existed. It was, therefore, unnecessary to determine whether or not the sale was so connected with a proved illegality as to be rendered unenforceable.

Question of law, arising on the hearing of an appeal to the Circuit Court from the District Court, referred to the Supreme Court by way of Case Stated under s. 22 of the Courts of Justice Act, 1936, for the determination of the Supreme Court. The Case was stated by one of the Circuit Court Judges of Dublin (Judge Davitt) on the application of the plaintiffs, the defendant consenting.

The Case Stated was as follows:—

"1. The defendant in this action, Mr. William Field, appealed to the Circuit Court from a decree of the District

Court in favour of the plaintiffs, Messrs. Gavin Low, Limited, for the sum of £12 10s. 0d., being the amount of a cheque, dated 12th December, 1940, drawn by the defendant in favour of the plaintiffs, payment of which was stopped by the defendant.

2. On the hearing of the appeal by me on the 7th and 14th days of March, 1941, the following facts were admitted or proved:—

The defendant and appellant, Mr. William Field, is a licensed victualler. The plaintiffs (respondents) are livestock salesmen and auctioneers. On the 12th December, 1940, Mr. Field purchased from Messrs. Gavin Low, Ltd., at their yards at Prussia Street, Dublin, a cow which was being exposed for sale by them for human consumption. The said cow had been sent to them by the owner for sale in the ordinary course of their business, and had been received by them on 11th December, 1940. The purchase price of the animal was £16 10s. 0d., in respect of which the defendant gave the plaintiffs the sum of £4 in cash and handed them a cheque drawn by him in their favour for the balance of £12 10s. 0d., this being the cheque sued on herein. The animal was removed to the defendant's premises in Dun Laoghaire, where it was slaughtered later on the same day in the presence of the Veterinary Inspector of the Public Health Department of Dun Laoghaire Borough Corporation, who then discovered upon examination that the carcase was infected with generalised tuberculosis. He thereupon had it removed and it was destroyed in the Corporation's destructor on the 13th December, 1940, as being unfit for human consumption.

On the 12th December, 1940, the plaintiffs sent to the owner of the said cow their cheque for the said purchase price of £16 10s. 0d., less their commission, which said cheque was duly paid on presentment. On the 13th December, 1940, the defendant stopped payment of his said cheque for £12 10s. 0d. at his Bank, and so informed the plaintiffs on that date.

I find as a fact that the said cow was unsound and unfit for human consumption at the time of its exposure for sale, but that this fact was not known to the plaintiffs and could not have been ascertained prior to slaughter without a veterinary test by injection, the results of which would not be known for at least 24 hours.

3. Counsel for the defendant (appellant) submitted to me that under s. 133 of the Public Health (Ireland) Act, 1878, as amended by sects. 12 and 28 of the Public Health (Ireland) Amendment Act, 1890, it was illegal and an offence to sell or expose for sale any animal or carcase intended for the food of man which was found to be so unsound or diseased as to be unfit for such purpose, and that knowledge of the condition of the beast was unnecessary to support a conviction. He submitted that the consideration for the defendant's cheque was, therefore, illegal, and that the said sum of £12 10s. 0d. was irrecoverable in law.

4. [The documents incorporated were set out.]

5. The point upon which I desire the opinion of the Court is whether upon the true construction of s. 133 of the Public Health (Ireland) Act, 1878, as amended by sects. 12 and 28 of the Public Health Acts Amendment Act, 1890, the decree of the District Court should be reversed and the plaintiffs' claim dismissed on the ground that the said cheque was given for an illegal consideration."

Cur. adv. vult.

Sullivan C.J.:—

The plaintiffs are livestock salesmen and auctioneers, and on the 12th December, 1940, they exposed for sale in their sale yard a cow intended for human consumption which they had received for sale in the ordinary course of their business. It was bought by the defendant, a licensed victualler, for the sum of £16 10s. 0d., of which £4 was paid in cash and the balance £12 10s. 0d. by cheque drawn by him in the plaintiffs' favour. On the same day the cow was slaughtered on the defendant's premises at Dun Laoghaire in the presence of the Veterinary Inspector of the Public Health Department of the Dun Laoghaire Borough Corporation, and he found that the carcase was infected with tuberculosis. On the following day, the 13th December, the carcase was destroyed in the Corporation destructor as being unfit for human consumption, and the defendant stopped payment of his cheque. The plaintiff subsequently brought this action in the District

Court to recover £12 10s. 0d., being the amount of the defendant's cheque, and recovered a decree for that amount. The defendant appealed to the Circuit Court, and on the hearing of that appeal this case was stated.

The learned Judge of the Circuit Court found as a fact that the cow was unsound and unfit for human consumption at the time of its exposure for sale, but that this fact was unknown to the plaintiffs and could not have been ascertained prior to its slaughter without a veterinary test, the results of which would not be known for at least 24 hours. The question submitted for the opinion of this Court is whether upon the true construction of s. 133 of the Public Health (Ir.) Act, 1878, as amended by sects. 12 and 28 of the Public Health Acts Amendment Act, 1890, the decree of the District Court should be reversed and the plaintiffs' claim dismissed on the ground that the said cheque was given for an illegal consideration.

Sect. 132 of the Act of 1878 empowers any sanitary officer of the sanitary authority to inspect and examine—inter alia—any animal 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, and, if such animal appears to be diseased, or unsound, or unwholesome, or unfit for the food of man, to seize and carry it away in order to have the same dealt with by a Justice. Sect. 133 provides that if it appear to the Justice that any animal so seized is diseased, or unsound, or unwholesome, or unfit for the food of man, he shall condemn the same and order it to be destroyed so as to prevent it being exposed for sale or used for the food of man; and that 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 £20 £or every animal . . . 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.

The English Public Health Act, 1875, contains in sects. 116 and 117 similar provisions to those contained in sects. 132 and 133 of the Irish Act.

The Public Health Acts Amendment Act, 1890, s. 28, provides:—

"(1) Sects. 116 to 119 of the Public Health Act, 1875, . . . shall...