GRIMBLE บ. PRESTON (resp.). 1913. gar-False warrantyJurisdiction DARLING, J.-I think it will be more convenient if the Court deal with the points in the order in which they were raised. The first point raised by counsel for the appellants is as to the jurisdiction of the justices at Nuneaton. The appellants were summoned for that they at the parish of Nuneaton unlawfully did give to the purchaser a false warranty in writing with regard to certain vinegar. The offence referred to in the summons was created by sect. 20, sub-sect. 6, of the Sale of Food and Food and Drugs Act, 1899. It will be noticed that under that drugsAdulteration sub-section the warranty must be given " to the purchaser," and -Malt vine that the vendor who has given the warranty is excused if he proves that when he gave it he had reason to believe that the statements or descriptions contained therein were true. It is of justices clear that in this case, wherever the warranty was given, the Omission to giving of the warranty was not completed until it reached the serve copy of analyst's cer- purchaser, and though it may not be necessary to decide it, if a tificate with person attaches a false warranty to goods and puts them on rail, but before they have reached the purchaser he repents and takes the warranty off, so that the goods are delivered to the purchaser without the false warranty, I should myself think that he would not have given a false warranty to the purchaser. But Mr. Macmorran's argument goes further and involves this, that in such a case the person who attaches the warranty to the (62 & 63 Vict. goods does give a false warranty to the purchaser and could be c. 51), s. 19 convicted. summons Waiver of objection by appearing Evidence Sale of Food and Drugs Act, 1899 (2), 20 (5) (6). I should read that sub-section as meaning this, that the offence is the giving of the false warranty "to the purchaser," and I think towards the end of the sub-section we must read the words "when he gave the warranty" as meaning "when he gave the warranty to the purchaser." I do not think that in order to be excused he would have to prove that he had never attached the warranty to the goods at all. If it were otherwise it would involve this result, that the moment a man had stuck a warranty on the goods, he would have committed the offence, although his doing so might be merely a momentary wrongdoing, and he might almost immediately remove the warranty from them. I think that the enactment should be read strictly, and, reading it in that way, I come to the conclusion that there is no offence unless the warranty is given to the purchaser. I think that in this case the offence was committed sufficiently within the jurisdiction of the justices at Nuneaton to give them jurisdiction to adjudicate in the matter. With reference to sect. 46 (2) of the Summary Jurisdiction Act, 1879, which enacts that where the offence is begun within the jurisdiction of one court and completed within the jurisdiction of another court of summary jurisdiction, such offence may be tried by any one of such courts, it is not necessary to decide whether if the appellants had been prosecuted in London a metropolitan police magistrate would have had jurisdiction. I must not, however, be understood as saying that I exclude the possibility that the offence was begun in one jurisdiction and completed in another, and therefore might have been adjudicated upon either in London or Nuneaton. Therefore on these grounds I think that on this point we must decide against the appellants. GRIMBLE AND CO. LIMITED (apps.) v. PRESTON (resp.). 1913. gar-False warrantyof justicesOmission to The second point taken was that a copy of the analyst's certificate was not served with the summons. As to that, I think that the objection that a copy of the analyst's certificate was not served with the summons does not go to the jurisdiction Food and of the justices. The service of that certificate is a matter of drugsprocedure, and if the objection that it had not been served was Adulteration insisted upon, the Court could not cure the defect. But the -Malt vineobjection was one which the party upon whom the certificate ought to have been served could waive either by words or Jurisdiction conduct. I think that it is plain that the solicitor for the appellants, by his conduct, waived any right which he had to object. Then the third and last point is whether there was any evidence on which the justices could find that this article was improperly described as pure malt vinegar. I think, when we look at the whole of the evidence, the magistrates might have come to the conclusion that this could be honestly so described, for it might have been made from malted cereals; and if the magistrates had accepted that view they might have dismissed the summons. On the other hand, there is the evidence of the (62 & 63 Vict. certificates of the analysts which points the other way. I think 8.51), ss. 19 that this point also fails and that the appeal must be dismissed. ROWLATT, J.-As to the first point, the question is at what time the offence of giving to the purchaser a false warranty in writing was completed. Sect. 20, sub-sect. 6, of the Sale of Food and Drugs Act, 1899, creates a criminal offence for the purpose of protecting purchasers from finding themselves in possession of goods with a false warranty which misleads them as to the nature of the goods. That enactment does not deal with any question of contract from the commercial point of view. The question is when was the warranty given to the purchaser. In my opinion it was not given to him within the meaning of this sub-section until he actually received it. If the warranty is dispatched to the purchaser, but retracted by the vendor before it reaches the purchaser, I think the warranty has not been given to the purchaser so as to create a criminal offence on the part of the vendor. When it reaches the purchaser then the offence is completed, but I do not decide that a prosecution would not lie in the place where the offence was begun as well as in the place where it was completed. I merely decide that if the warranty has not reached the purchaser the offence is not completed by its mere dispatch. Then with regard to the second point, I think the provision. that the copy of the analyst's certificate must be served with the summons cannot be got over if the person on whom it ought to be served properly takes the objection. The defect is one serve copy of analyst's cer tificate with summons Waiver of objection by appearingEvidenceSale of Food and Drugs Act, 1899 (2), 20 (5) (6). GRIMBLE v. PRESTON (resp.). 1913. warranty which cannot be cured by amendment or by adjournment, because, whatever may be the adjournment, the certificate cannot be served with the summons; and all that could be done would be to withdraw the summons and if possible commence fresh proceedings. The section says that there must be served with the summons a copy of the certificate, and when the section says "must" it means must. But when all that is said, the fact remains that Food and the provision is nothing more than a formality which is to drugsAdulteration accompany the service of the summons. If the defendant -Malt vine chooses to appear and either by his express words or by his gar-False conduct declares that though he has not had the certificate Jurisdiction served on him with the summons, he dispenses with the formality of justices and prefers to go on with his defence, I think he may do so, Omission to and the jurisdiction of the justices is not affected by the serve copy of omission of the formality, which is prescribed for the protection. tificate with of the defendant and which he has power to waive. The question then remains whether what the appellants did amounted to a waiver. They appeared by an advocate who did not take the objection at the commencement of the hearing, but proceeded to break down the witnesses for the prosecution by cross-examination and did not take the objection until he was called upon to open his own case. analyst's cer summons— Waiver of objection by appearing Evidence Sale of Food and Drugs Act, 1899 62 & 63 Vict. c. 51), ss. 19 In Batt v. Mattinson (ubi sup.) it was pointed out, and I (2), 20 (5) (6). agree, though I am bound by it whether I agree with it or not, that the provision of the statute is imperative. There the objection was taken when the defendant appeared before the Court and before the case was gone into and no question of waiver arose, and the decision merely was this, that if the defendant takes the objection in time it cannot be got over. I am of opinion that in this case the appellants appeared and waived the objection that they might have had by the certificate not having been served with the summons. I think, therefore, that point fails. As to the third point, I concur with the observations of my brother Darling. ATKIN, J.-I agree, and I only wish to add as to the first point that I think our conclusion is confirmed by the words of sect. 6 of the Act of 1875, and by a consideration of a possible defence that a defendant may set up on a charge of giving a false warranty. Every person who gives a false warranty to the purchaser is liable unless he proves that when he gave it he had reason to believe that the statements or descriptions contained therein were true. Suppose that the circumstances were such that the warranty would take some time to reach the purchaser, as, for instance, if the goods were sent by a slow mode of conveyance and in the meantime and after the dispatch of the goods the seller had reason to suppose that the goods which he believed to be sound were not sound, then he would commit an offence unless he called the attention of the purchaser to his discovery and withdrew his warrauty. In my opinion the warranty is not complete until it reaches the purchaser, and until that time the seller has power to withdraw it. On the second point also I agree. The objection that the certificate of the analyst was not served with the summons does not go to the jurisdiction of the justices. It was founded upon an informality which could not be cured by amendment (see Batt v. Mattinson, ubi sup.), and which was a breach of the condition precedent to the appellants being brought before the justices who had cognisance of the offence. GRIMBLE v. PRESTON (resp.). 1913. Food and drugs I think that under the circumstances a person who knows of Adulteration the defect and does not take the objection at once at the -Malt vinecommencement of the hearing, but goes on and cross-examines gar-False the witnesses for the prosecution and defers the objection until the prosecution had been completed, can waive the objection as any other condition precedent can be waived. warrantyJurisdiction of justices Omission to serve copy of analyst's cer Waiver of It has been suggested that even after a formal refusal to take the objection, and after evidence for the defence has been called tificate with and the justices have decided to convict, the objection can still summonsbe taken; but I do not agree with that contention. The only objection by proper inference in this case is that the appellants did waive the appearingobjection. The question does not seem to me to be a question Evidenceof jurisdiction at all. As to the third point, I concur with the other members of the court. Appeal dismissed. Solicitors for the appellants, Neve, Beck, and Kirby. Baker and Co., Birmingham. Sale of Food and Drugs Act, 1899 (62 & 63 Vict. c. 51), ss. 19 (2), 20 (5) (6) COURT OF CRIMINAL APPEAL. Monday, November 17, 1913. (Before ISAACS, C.J., DARLING, BRAY, LUSH, and ATKIN, JJ.) REX v. CROWLEY; REX . SULLIVAN. (a) Habitual criminal-Sentence of ten years' preventive detentionNo rule as to limit of five years-Prevention of Crime Act, 1908 (8 Edw. 7, c. 59), s. 10. A previous conviction against a prisoner, which has been quashed on appeal, should not be mentioned before the jury when he is charged with being an habitual criminal. (a) Reported by R F. BLAKISTON, Esq., Bar ister-at-Law. REX v. CROWLEY; REX v. There is no fixed rule that in the absence of special circumstances the period of preventive detention should be limited to five years, but the judge must exercise his discretion having regard to all the circumstances of the particular case. SULLIVAN. Rex v. Hamilton (9 Č. A. R. 90) commented on. 1913. Habitual criminalSentence of ten years' preventive detention No rule as to The general policy of the Prevention of Crime Act, 1908, discussed. REX v. CROWLEY. limit of five APPEAL against sentence and application for leave to appeal years against conviction as an habitual criminal. Prevention of The appellant was convicted of burglary and of being an 1908 (8 Edw.7, habitual criminal at Somerset Sessions, and was sentenced to c. 59), s. 10. three years' penal servitude and ten years' preventive detention. Crime Act, E. D. Purcell for the appellant. The appellant was released from prison on the 15th day of April last, and his arrest on the charge of burglary took place in July. No reference was made in the summing up to this interval of three months, though it must be admitted that evidence of the appellant's behaviour during that period would hardly have been favourable to him. With regard to the sentence, it is provided by sect. 10 of the Prevention of Crime Act, 1908, that where a prisoner is convicted of being an habitual criminal, and the court passes a sentence of penal servitude, the court "if of opinion that by reason of his criminal habits and mode of life it is expedient for the protection of the public that the offender should be kept in detention for a lengthened period of years" may sentence him to a term of preventive detention not exceeding ten nor less than five years. It is, therefore, a matter of discretion for the judge whether such a sentence is for the protection of the public, and also as to its length. The appellant is over fifty, and a sentence amounting to thirteen years does not encourage reformation on the part of the appellant. This Court has expressed an opinion that five years should be the normal sentence of preventive detention: Rex V. Hamilton (9 C. A. R. 89). [BRAY, J.-I was a member of the Court in that case, and it was not intended to lay down any general rule.] There are twenty-seven convictions recorded against the appellant, but none of the offences involved deliberation. It has been suggested that preventive detention is reformative, but it is certainly also preventive. Dickens, K.C. and Comyns Carr for the Crown.-Since the decision in Rex v. Hamilton (sup.) and by custom, the sentences passed on habitual criminals have been uniformly fixed at three years' penal servitude and five years' preventive detention. This tends to limit the discretion of judges, and those who instruct me are anxious to have the judgment of this Court |