1903 SMITH V. SIBRAY, HALL & Co. used for working overtime; in other words, I think that the language of Sched. II., clause 4, points to the general character of the place, and not to the purpose for which it is being used at the particular time. I have, therefore, come to the conLord Alverstone clusion that this was a place in which the working of overtime was not justified, on the ground that the place was used for a manufacturing process or handicraft during the ordinary working hours. C.J. WILLS J. I am of the same opinion. Speaking for myself, I think that the matter is pretty clear. The employment of women in factories is permitted only during specified periods of the day, in all cases limited to twelve hours, which may be from 6 to 6, or from 7 to 7, or from 8 to 8, according to the hour at which the day's work begins; but there is this exception that on a limited number of days in the year overtime not exceeding two hours may be worked. It is difficult to say whether overtime means the two hours from 6 to 8, or from 7 to 9, or from 8 to 10, for this must vary with the different sets of workers, according to the hour at which they started work, though I think that overtime begins as soon as the twelve hours of the ordinary day are finished; but it is unnecessary to decide that question, as in any point of view 9 o'clock, which was the time of the inspector's visit, must be overtime. The only question we need consider is whether the respondents, the employers, come within the exception in Sched. II., clause 4. No doubt the language of the exception is susceptible of two interpretations, but I think it is more consonant with the view that the warehouse in which overtime is worked is not to be used at any time for other purposes than those of polishing, cleaning, wrapping, and packing up. It seems clear to me that the Legislature intended to make a general provision applicable to all non-textile factories, and, therefore, the argument that in this particular instance it was not more objectionable to do the overtime work in a part of the factory where a manufacturing process had been carried on earlier in the day than in a part solely devoted to work of the description allowed to be performed in overtime goes for nothing, for no doubt there may be many other trades in which there is a good reason for the prohibition. And it is clear that the construction contended for by the respondents would in many cases greatly facilitate the evasion of the statutory requirements. CHANNELL J. I agree. There is no doubt that the language of Sched. II., clause 4, is capable of two meanings: it may mean that the room used for overtime work is not to be used at the same time for a manufacturing process or handicraft, or it may mean that the room is not to be so used at any time during the day. At first I felt some difficulty in understanding why the Legislature, in protecting women against being employed in factories for more than a certain number of hours per day, should have said that, although on a limited number of days they may be employed beyond those hours upon a certain specified class of work, they may only be so employed if the place in which the overtime work is performed is one which during the whole day is used only for the class of work allowed to be performed in overtime. But I think that the reasons advanced by the appellant are cogent. It may be that the manufacturing process carried on in the daytime is unhealthy, or such as to vitiate the atmosphere of the place in which it is carried on and render it deleterious to the women who afterwards use it for the purpose of their overtime work. And there is the equally important objection of the facility that would be afforded to the evasion of the requirements of the statute; for if the place where women work overtime were permitted to be the same place as that in which a manufacturing process has been carried on during the day, and in which machinery is used for that manufacturing process, evasion could not be prevented, and it would be easy enough, on the occasion of the inspector's visit, for a woman who had just previously been engaged in a manufacturing process to be found doing legitimate overtime work. This affords a sufficient reason for the action of the Legislature, not only in enacting that no woman should be employed after 8 P.M. except on certain specified work, but also for the provision that the 1903 SMITH V. SIBRAY, HALL & Co. 1903 SMITH บ. SIBRAY, HALL & Co. place used for doing that work is not to be used at any time of the day for any manufacturing process or handicraft. 1903 July 8. Appeal allowed. Case remitted to magistrate. Solicitor for appellant: Solicitor to the Treasury. W. J. B.. MILES v. HUTCHINGS. Criminal Law-Malicious Injury to Property-Shooting at Dog-24 & 25 An information under 24 & 25 Vict. c. 97, s. 41, was laid against the appellant, a gamekeeper, for unlawfully and maliciously killing a dog; the dog was at the time near an aviary in which pheasants, the property of the appellant's master, were confined for breeding purposes. Held, that the test of the appellant's liability under the section was whether he acted under the bonâ fide belief that what he was doing was necessary for the protection of his master's property, and that it was the only way in which the property could be protected. Daniel v. Janes, (1877) 2 C. P. D. 351, considered. CASE stated by justices for the county of Southampton. The appellant had been summoned to answer an information laid by the respondent under 24 & 25 Vict. c. 97, s. 41, charging him with having unlawfully and maliciously killed a dog, the property of one Sheldon. At the hearing of the information it was proved, and the justices found as facts, that the appellant was a gamekeeper; that on the day in question he saw a fox-terrier dog near an aviary in which pheasants, the property of his master, were confined for breeding purposes; that he fired twice at the dog, which was at the time wearing a collar with its owner's name and address legibly engraved upon it; and that the dog died from the effect of the shots. It was stated on behalf of the appellant that the pheasants had been much troubled and 1903 MILES V. injured by stray dogs; that there was a notice-board warning persons against allowing dogs to stray near the aviary, and that some persons had been asked to keep their dogs away HUTCHINGS. from it; that Sheldon, the owner of the dog in question, had not been personally warned, as the appellant did not know that he kept a dog; that the appellant shot at the dog with the intention of driving it away and not with the intention of killing it, and that he thought it necessary to shoot at the dog in order to protect his master's property. The justices were of opinion that the evidence brought the case within the operation of the statute, and that the appellant had no right to shoot the dog; they therefore convicted and fined the appellant. The questions for the opinion of the Court were: (1.) Whether the case was within s. 41 of the Malicious Damage Act, 1861 (24 & 25 Vict. c. 97). (2.) Whether the appellant could be legally convicted of the offence charged. Cancellor, for the appellant. The conviction was wrong. The facts do not bring the case within s. 41. In Daniel v. Janes (1), where poisoned meat was laid down in order to poison a dog, Lord Coleridge C.J. laid it down that the section pointed to the commission of a wicked act and not to an act done under an impression, right or wrong, that the party doing it was justified in doing it in order to protect his premises from trespass; and that decision was followed in Smith v. Williams (2), where chickens had been intentionally shot while devouring wheat. [He also cited Bryan v. Eaton. (3)] The respondent did not appear. LORD ALVERSTONE C.J. This case raises a question of considerable importance, which has on more than one occasion been under the consideration of the Court. I think, however, that the facts at present stated are insufficient to enable us to deal satisfactorily with the case, and that it must be sent back (1) 2 C. P. D. 351. (2) (1892) 9 Times L. R. 9; 56 J. P. 840. (3) (1875) 40 J. P. 213. 1903 MILES V. HUTCHINGS. Lord Alverstone C.J. to the justices for a further statement. The justices say that it was stated on behalf of the appellant that he shot at the dog, not with the intention of killing it, but with the intention of driving it away; when, however, they come to the expression of their opinion on the case, they merely say that the appellant had no right to shoot the dog; they have not dealt with the important question whether the appellant bonâ fide believed that the only way of protecting his master's property was to act as he did a point upon which it is most desirable to have their finding. In Daniel v. Janes (1) Lord Coleridge C.J. said: "The 41st section of the Act, upon which the conviction proceeded, points to a wicked crime, the unlawfully and maliciously killing or maiming the animals referred to simply for the purpose of indulging a cruel disposition, and not to an act done under an impression, right or wrong, that the party is justified in protecting his premises from a trespass by such means, especially after notice given." Without agreeing with all that is there said, I think that the test in the present case may be whether the appellant bonâ fide believed at the time that what he was doing was necessary for the protection of his master's property; if he did so believe, the charge of unlawfully and maliciously killing the dog is negatived; if, however, he fired at the dog unnecessarily, and without any such bonâ fide belief, I think that the offence of unlawfully and maliciously killing the dog would be made out. On this point, therefore, it is necessary that the case should go back to have the facts more clearly stated. WILLS J. I agree. In my opinion the case of Daniel v. Janes (1) was correctly decided upon the facts before the Court; but the test laid down by Lord Coleridge C.J. involves a general proposition which, I think, puts somewhat too broadly the right of a person to do an act of the kind in question. It is in my judgment not enough that he should be under the impression, right or wrong, that he is justified in protecting his premises from trespass or (as in the present (1) 2 C. P. D. 351. |