ledge is sufficient. Directly unwholesome meat is hung up it is prima facie evidence that it was hung up with the knowledge of the master, Pollock on Torts, p. 264; Mackay v. Commercial Bank, L.R. 5 P.C. 394; Mullins v. Collins, 9 L.R.Q.B. 292; Udell v. Atherton 7 H. & N. 172; Blackburn v. Vigors, 17 Q.B.D. 559. (Cur ade. vult.) Higinbotham C. J.-A judge's order has been obtained to prohibit the justices from carrying into effect a conviction against the Farmers Produce Company, Limited, by which a fine was imposed upon the company. The company was summoned under section 59 of the Public Health Amendment Statute 1883, which provides that "If any person knowingly sells, or imports, or has in his possession or under his control for the purposes of sale or storage, or preparation for sale for human consumption, any meat, poultry, game, flesh, fish, fruit. vegetables, corn bread, flour, tea, sugar, milk, or any articles of food or drugs of a nature deleterious to health or unwholesome, or any meat which has been blown upon or spouted, greased, stuffed, or pricked, such person shall be guilty of an offence against this act, and shall be liable to conviction thereof to pay any expenses incurred in the inspection, seizure, and disposition of such articles as herein before provided, and shall also be liable to a penalty not exceeding £20 for every such offence.' If this is the It There are many bring the act within the criminal law. rule in respect to individuals it is equally applicable to corporations. Both individuals and corporations alike may come within the purview of those prohibited acts, although they may have no knowledge or intention to commit any offence. It is in all cases a question whether the Legislature intended to prohibit the act, or whether knowledge of the act prohibited should constitute an essential part of the offence. was further contended by Mr. Barrett that section 59, which made knowledge part of the offence, at all events, could not apply to a corporation. That argument, too, can not be supported. cases in which a corporation has been held to be liable for acts done by it on the civil side of the court in which knowledge of the nature of the act is assumed by law to exist in the corporation, that is knowledge not by the corporation itself, which was supposed to have no mind, but knowledge existing in the minds of those who were empowered by the corporation to conduct its business. Reference was made to the common law in England of cases where a person would include a corporation. But our statute law, by recognising a corporation as being a person, except in cases where that interpretation is repugnant to or inThe order to prohibit the enforcing of the convic- consistent with the language of the statute, gives tion was obtained on two grounds-First that the additional and entirely new force to the application justices were wrong in point of law, because the of the principle of the common law. The apparent summons disclosed no offence as against the company. object of the Legislature in the interpretation statute It has been argued in support of this ground that an is that a corporation must be deemed in certain cases incorporated company is not a person within the to have a mind, and to be liable for all the con meaning of this section. By the Interpretation Act sequences of the possession of a mind, will, and 21 Vict., No, 22, it is provided in section 6 that "in purpose to the same extent as a person who has to all acts now or hereafter to be in force. the take the consequences of his intelligent acts. word 'person shall include a corporation, unless This section 59 contains nothing which is there be something repugnant to, or inconsistent with, repugnant to the view of a corporation being inthat interpretation." It had been contended in cluded in it. If a corporation could escape from another argument by Mr. Barrett that, inasmuch as liability under this and other sections of the statute, the act prohibited by this section is in its nature a it would open the door to a complete evasion of the criminal act, a corporation could not be liable under statute, and would defeat the intention of the the section, inasmuch as a corporation could not have Legislature on this very important subject of the a mens rea, which is commonly supposed, and in most public food. There are now great facilities for formcases correctly supposed, to constitute an essential ing corporations, and if a trader could escape proelement of an offence against the criminal law. Mr. visions of this character by forming a corporation, Barrett argued that a corporation could not be guilty the intention of the Legislature in this act, and of a criminal offence, as it could not have a mens rea. in legislation of a similar social character in the That part of the argument cannot be supported for a Police Offences Statute might be easily defeated. moment. In many instances, and especially in recent There is nothing in this section to make it repugnant legislation relating to social matters in which an act to a "person" including a corporation, and therefore is prohibited by the Legislature under a penalty, a corporation is within the purview of the statute knowledge of the facts is not necessary to constitute section. The second ground on which it was sought the offence. The prohibition is against the doing of to prohibit the order of the justices is that there was the act. In a recent case of The Queen v. Gibson, 11, no evidence of knowledge by the Company. The V.L.R. 94, it was held that a person is liable to the evidence on that point was very short, and it appenalty inflicted by the criminal law although he was peared from that evidence that one of the employes— not aware of the facts which constituted the necessary it did not appear who he was-had opened these part of the offence. In the authorities referred to in hams on the evening of the 13th March, and that, that case it was clearly shown that there were a very although the hams were outwardly free from decay, large number of acts prohibited by the Legislature yet they were rotten inside. I should be disposed to which would involve a person in the penalties imposed say that if that employe was a person whose duty it by the statute, although there might be no knowledge was to open and expose these hams for sale, it might or intention or mens rea on the part of a person to be inferred by the magistrates that he knew or ought ་ to have known, that the hams were diseased, and his knowledge would in that case be the knowledge of the company, and the company would be liable. But no evidence was given by the informer, as to who the employe was or what his duties were. Therefore no proof was given by the informer, on whom the burden of proof rested, that any person authorised by the company to expose these hams for sale had any knowledge of the condition of the hams. The manager stood in a different position. It would be assumed to be his duty to be acquainted with the character of the goods exposed for sale in the warehouses of the defendants. Certainly an ignorance of the condition of the goods arising from negligence on his part or intentional ignorance would not be an excuse or an answer to the charge. But it appears that the goods were brought on the defendant's premises after the manager had left, on the evening of the 13th March, and after, it may be presumed, the hours of business were over. The hams were seized by the inspector, apparently before the manager visited the company's premises, at an early hour on the following morning, I do not think that it can be fairly inferred from the fact that they were in the company's office during hours, when the manager might not unreasonably be absent, that he could have acquired a knowledge of the condition of these articles, or that it would amount to negligence on his part that he did not know their actual condition. If so, his ignorance would be ignorance for which the company would not be responsible. It cannot be said that the manager had knowledge or that the company had knowledge. The whole of the evidence failed to show that the defendants knowingly did this act-that is, that they did it. actually knowing or negligently ignorant of the condition of the hams. It is to be observed that the magistrates, in making a minute of their order, did not refer to this objection, although it had been brought under their notice. The minute was "charge exposing unwholesome hams for sale.' That is not an offence, and if an application to quash it had been made there seems to be no materials on which the Court could have allowed it to be amended. That indicates that the justices had either overlooked it or did not form any opinion on this essential part The order to prohibit be made absolute, of the case. with costs. WILLIAMS J.I concur with the result of the judgment of the Court, but I cannot say that I concur in all the reasons for it. At the outset I do not understand that Mr. Barrett has in his argument put forward the broad proposition as stated by the Chief Justice. What I understand the proposition to be is that a corporation cannot be prosecuted for a criminal or quasi-criminal offence, which necessarily involves the establishing against the corporation of a mens rea. I am glad, however, that it was not necessary to decide the case on that point, but I have been very much pressed by Mr. Barrett's argument. When one considers the nature of a corporation, that it is an aggregation of a number of shareholders-sometimes a very large number-that the shareholders appoint all directors, and that the directors are the governing body, and appoint managers, clerks, and sub-officers-it is a very doubtful proposition that to a corporation so constituted could be fixed a mens rea, because a director or directors or a manager or clerk happens to commit a criminal or quasi-criminal offence. I will put it as high as that the directors had knowledge, and it is a formidable proposition to say that from that knowledge you can impute a mens rea to the corporation. And if it cannot be done in the case of directors, much less could it be done where the wrongful act was one done by an office boy, or a clerk, or even the manager. Lord Justice Bramwell, in a case of Abrath v. the London and N.E. Railway Co., L.R. 11, Appeal Cases 247, said that an action for malicious prosecution would not lie against a corporation for the reason that it could not have malice. That was a civil action, and not a criminal or quasi-criminal proceeding. I have very grave doubts, therefore, whether a corporation can be prosecuted under section 59 of the Public Health Amendment Act 1883, and if it were necessary to give an opinion on that point in order to decide the case, I would require a very much longer time for consideration than I have enjoyed at present. I concur with the judgment of the Court on the other point of the case, namely, that there was no offence proved. Assuming that the knowledge of the manager would be knowledge of the corporation for this purpose, there was no evidence that the manager had knowledge. The evidence for the prosecution was very bald. It appears that the hams were brought to the store one evening at 5 o'clock, and that they were taken away next morning at 10 o'clock; that the prosecutor saw a man and asked him for a tester, and that having tested, he declared the hams unsound. It was not shown who this man was, he might be anybody. On this point I do not concur with the Chief Justice. The Chief Justice said that if the man who received and hung up the hams knew them to be unfit for food, and unwholesome, his knowledge would be the knowledge of the corporation. If my views as to suing the corporation are wrong, it is possible that knowledge by the man appointed by the directors to conduct the business of the corporation would be knowledge of the corporation. But either the knowledge of that person or of the person appointed to take his place in his absence is necessary. The knowledge of the person who cut up the goods, or who kept the books or who swept the place, or who hung up the hams, cannot be said to be knowledge by the company. There must be knowledge by the manager or responsible head, the alter ego of the directors, or knowledge by his substitute. There was no such evidence here. HOLROYD, J.-I agree generally with the Chief Justice. I think a corporation can be sued for an offence under the section. The meaning of the Interpretation Act, 21 Vict., No. 22, is that in an act of Parliament the word person shall include a corporation if there is nothing in the act repugnant to or inconsistent with that interpretation. There is noth ing in section 59 of the Public Health Amendment Act repugnant to or inconsistent with a corporation being liable to a penalty. A corporation can be fined. It can be indicted for misfeasance, as well as for nonfeasance. The whole policy of the act is to restrain unwholesome food being brought into consumption. An dthe principle which prevents individuals committing this offence is as strongly applicable to corporations. Having regard to the constitution of these trading companies, nothing would be more dangerous than to allow a company to escape from the consequences of having unwholesome food in its possession or to the knowledge of its servants. The knowledge of its servants entrusted with the duty of looking after its business is its knowledge. It is the duty of the corporation to appoint competent officers to ascertain whether the food it offered for sale is wholesome or not. The reason why corporations have been held liable to actions for trespass and malicious prosecution is equally applicable to a case where the act done is an injury to the public or dangerous to the public health. The position of corporations in this respect has been stated in Green v. The London General Omnibus Company, 6 Jurist N.S. 228, and Stiles v. The Cardiff Steam Navigation Company, 10 Jurist N.S. 1,199. On the other point, I am of opinion that there is no evidence against the company. It might have been the duty of the man referred to in the evidence to unpack the hams, and place them for some one to inspect. There was no evidence that it was his duty to inspect them, and they must be received and unpacked before they can be inspected. WILLIAMS, J.-I desire to add that though I doubt whether a corporation can be prosecuted for this offence, it does not follow that under this section there can be no prosecution for the sale of unwholesome meat in the conduct of the business of the corporation. If the manager sells unwholesome meat he may be prosecuted for an offence under the section. He would be the person who sold meat unfit for human consumption. Order made absolute, with costs, to prohibit the enforcing of the conviction. Sept. 21 Before Higinbotham, C.J., Williams and Holroyd, J.J. GRACE V. CARRICK. Contract-Restraint of trade-Limit of space-Unreasonableness--A covenant by the defendant "not to tender against or run in opposition to or in any way either directly or indirectly interfere with the plaintiff in respect of any contract or tender for contract for conveyance of mails or in any coach or other business for the conveyance or carriage of persons, parcels &c tendered for or entered into by the said plaintiff in the colony of Victoria within a period of 5 years from the date hereof" is limited both in respect of time and place and is not void as being in restraint of trade or unreasonable, Points reserved by Williams, J., at the trial. the defendant was a hotelkeeper at the same place. The plaintiff was a mail contractor at Natimuk and On 25th December, 1885, defendant executed a deed as follows: mail contractor in consideration of the sum of £25 paid to me "I John Carrick of Horsham in the colony of Victoria by Thomas Grace of Horsham aforesaid mail contractor the receipt of which sum I hereby acknowledge and therefore release and discharge the said Thomas Grace do hereby title and interest whatsoever in and to the Horsham and assign and transfer to the said Thomas Grace all my right Natimuk mail contracts at present held by me from the Victorian Postal Department up to the 30th day of June 1887 at the rate of £150 4s per annum And I hereby undertake and bind myself in a penal sum of £500 to be recovered against me at law by the said Thomas Grace as and for ascertained damages upon any breach on my part of this covenant not to tender against nor run in opposition to or in any way whatsoever either directly or indirectly interfere with the said Thomas Grace either with respect to the above contracts or any other contract or tender for contract for the conveyance of mails or in any coach or other business for the conveyance or carriage of persons parcels mails goods or chattels of any description tendered for or entered into by the said Thomas Grace in the colony of Victoria within a period of 5 years from the day of the date hereof." It was alleged that in August, 1887, the defendant entered into and carried on business for the conveyance or carriage of persons &c. between Natimuk railway station and Natimuk and in opposition to the plaintiff ran a coach and plied for hire between these places and thereby interfered with the plaintiff's business. At the trial a verdict was entered by consent for the plaintiff for £34, subject to the decision of the Full Court on the following points:-1. Whether there had been any breach of the contract or damage proved. 2. Whether there was any consideration for the contract. 3. Whether the covenant being in restraint of trade was not void and un reasonable. Hodges and Donoran for the plaintiff.-The onus is on defendant to show that this covenant is greater than can possibly be required for the plaintiff's protection, otherwise it is not unreasonable. Tallis v. Tallis 1 E & B 391 cited in London Cloth Co v. Lorsont L R 9 Eq. 345 at p 353; Jones v. Lees 1 H & N 189; Rousillon v. Rousillon 14 Ch D 351 Unless defendant makes it absolutely clear that it is unreasonable the court will not interfere with the general freedom of contract Davies v. Davies 36 Ch. D 359 in which case absolute restriction was held void by an irrebuttable presumption, but this covenant is limited to certain parts of Victoria though it would be difficult for defendant to show that the whole of Victoria would be unreasonable under the circumstances [Higinbotham C. J.-Might not the covenant be void with respect to any contract out of the line of traffic to which the original contract applied ?] That is in cases where the covenant is divisible as in Price v. Green 13 M and W 695. [Holroyd J.-Was consideration of £25 given for purchase of the particular mail contract or for buying off opposition in Victoria for 5 years? For the latter purpose. We cannot consider the adequacy of the consideration. Dr. Madden and Hood (for the defendant). The breach is not pleaded as a breach of the particular contract, but of new business after the original contract expired. The court must look at the consideration, not to see if it was adequate, but to see if the restriction is reasonable, as the restraint in space is still subject to limitation, and the Court must see its reasonableness. There are three constructions of the contract possible. The words are "tendered for or entered into." There is first the construction con tended for by the plaintiff'; then that it only refers to contracts tendered for, or entered into before 25th December 1885; and thirdly that it refers to cases where the plaintiff having tendered or entered into a contract, the defendant is to be prevented from coming after and competing. It is submitted that the latter is the proper construction, otherwise plaintiff might levy blackmail. It is therefore either unreasonable, or there has been no breach. Collins v. Locke 4 Ap. Ca. 686. Davies v. Davies 36 Ch. D. 359. A restraint over the whole of Victoria is general, and absolute, and equally void with a restraint over the whole world. Leather Cloth Company v. Lorsont. L.R. 9 Eq, 345. HIGINBOTHAM C.J. This contract in restraint of trade was clearly limited in respect of time, and we think it was also Imited in respect of place, for, although Victoria is the limit of the contract, it does not apply to all parts of Victoria, but only to those parts of Victoria where the plaintiff engaged in the business of carrying passengers or goods. Within those limits the defendant must not interfere directly or indirectly for the term of five years, from 30th December 1885. Where a contract affecting trade is entered into within certain limits of time, or time and place, it b comes a question for the Court to consider whether the contract is in itself a reasonable one, having regard to the circumstances of the case, and the burden of proving that it is unreasonable is on the def ndant. In this case the defendant brought forward no circumstances to show that the contract was not a reasonable one. We are of opinion that the contract is not void as being in restraint of trade, or unreasonable. We also think that there was vid nce that the defendant had broken the covenant. On the points reserved, judgment will be given for the plaintiff. WILLIAMS AND HOLROYD J.J. concurred. IN CHAMBERS. 29th Oct., 14th Nov Before A'Beckett, J. of claim the plaintiff averred that all conditions were performed, and in his reply, to a defence alleging non-performance of certain conditions, averred that the performance of the unperformed conditions was waived. Held -That the reply was inconsistent with the statement of claim. Application on behalf of the defendants for an order that paragraphs 2 and 3 of the reply be struck out or amended on the ground that the same are a departure, irregular and informal, and tend to pre judice, embarass or delay the fair trial of the action. The pleadings so far as they are material to this application appear sufficiently from the judgment. Mr. Hodges in support. In his statement of claim the plaintiff alleges that all conditions have been He Dr. Madden to oppose. Under the old system of pleading the pleader had to insert everything whether it could le contraverted or not, but under the present system it is intended that that shall be done away with, and that the pleader should not leap until he comes per to the stile. The mere statement of formance of conditions precedent is nothing because by order XIX. r., 14. whether you allege them or not they are to be implied. The reply is the proper place to plead confession and avoidance. Hall v. Eve 4. Ch. D. 341. The same issues will be tried in any event, whether the waiver had been set up in the statement of claim or in the reply. The allowing of this application would only entail greater expense, for if the statement of claim were amended, the defence would have to be amended also. The plaintiff assumes that the defence will not be set up at all, but as it has been set up we have dealt with it. HIS HONOR Said. I will consider the matter. HIS HONOR On a subsequent day read the following judgment: The plaintiff by his statement of claim avers that all conditions were fulfilled and all things happened, and all times elapsed necessary to entitle him to recover on an insurance effected by him. The defendants by paragraph 2 of their defence say Rules of Supreme Court 1884, Order XIX. r. 16 that one of the terms of insurance was that claims Pleading Inconsistency—Where in the statement WHITE V. THE DERWENT AND TAMAR F. AND M. AS should be payable three months after settlement, that there had been no settlement with plaintiff, and that three months had not elapsed after settlement, or after notification of loss As to the second paragraph the plaintiff by his reply pleads, firstly, that the defendants waived the condition before action, and secondly, that he was always ready and willing, and requested the defendants to settle, but the defendants declined and refused to do so. The defendants have taken out a summons to strike out these paragraphs of the reply on the ground that they are a departure, irregular, and tend to embarass. In support of the summons the defendants refer to Rule 16 of Order XIX and to the form of pleading prior to the Judicature Act, under which an allegation of waiver in regard to one of a series of conditions averred by the declaration to have been performed could only be properly made by amendment of the declaration. The paragraphs of the reply objected to contain allegations of fact inconsistent with the statement of claim, and they therefore offend against one of the prohibitions in rule 16. I think it would be competent for a plaintiff, averring the performance of conditions precedent and met by a denial of performance as to one of them, to adhere to his original allegation, and to add that even if the particular condition had not been performed there had been conduct by the defendant which would operate as waiver had there been no performance. I have not overlooked the fact that the plaintiff joins issue on the second paragraph of the defence, but having regard to the third paragraph of the reply there is, I think, an inconsistency as between the statement of claim and the reply, the former averring that all conditions have been per formed, and the latter that one of them has not been performed, and giving reasons why non-performance should be held no bar to the action. In support of the pleading assailed I was referred to Rule 14, under which the performance of conditions precedent may be implied without an express statement, but this rule does not relieve the person relying on waiver instead of performance of a particular condition from averring that waiver in the proper form. Hall v. Eve 4 Ch. D. 341 was also relied upon, but in that case there was no inconsistency of statement as between the plaintiff's pleading in its earlier and later stages. Taking the case now before me I cannot say that no practical inconvenience could arise from leaving it open to the plaintiff to contend on his statement of claim that he did perform a particular condition, and on his reply that he admitted he did not perform it, and therefore that the only question in issue as to the condition was whether or not it had been waived. I have not however to consider whether the rule under which the summons was taken out conduces to simplicity of pleading and saving of expense. I am bound to give effect to it, and I think I should do so in the present case by ordering that the second and third paragraphs of the reply be struck out as inconsistent with the plaintiff's previous pleading with £3 3s. costs; and I give the plaintiff leave to amend his statement of claim or reply as he may be advised within eight days of this order, his costs of so amending to be costs in the action. I deal thus with the costs of amendment as if the condition, performance of which is denied, had been in fact waived; the plaintiff should not be made to pay costs for treating it as if performed in his statement of claim. As between solicitor and client I certify that the summons was proper to be attended by counsel. Kiddle; for defendants-Malleson, England and Solicitors for plaintiff-Klingender, Dickson and Stewart. 24th Oct.' 14th Nov. HUGHES V. LOGAN. Rules of Supreme Court 1884, Order XIX. rr. 6, 7.—— Particulars after pleading-Affidavit-The delivery of a defence does not waive a defendant's right to particulars of the statement of claim--An affidavit in support of an application for particulars is only required for the purpose of showing that the discovery asked for is as to matters of which the party applying is himself ignorant; therefore where, to an action for breach of promise of marriage, the defendant in his defence denies any promise to marry, he will not be required in support of an application for particulars to file an affidavit that he does not know when and where he promised. Application on behalf of the defendant for particu lars. The facts, pleadings, and arguments appear sufliciently from the judgment. Mr. Coldham in support; Mr. Hood to oppose. HIS HONOR on a subsequent day read the following judgment. The statement of claim alleges that the plaintiff has suffered damage by breach of promise by the defendant to marry her within a reasonable time, which had elapsed before action, and that he refused to marry her within a reasonable time, or at all. The defence denies any promise to marry. After defence the defendant applies by summons for particulars as to the t'me or times and place or places at which the promise was made. It is not denied that these particulars might properly have been asked for before defence, but the summons is now opposed, because defence has been delivered, and because there is no affidavit by the defendant that he does not know what he asks to be informed upon. There is no hard and fast rule upon the subject, and I think it would be very undesirable to make one. What would be the proper time to apply, when an affidavit should be made. and when making it would merely be a useless expense, may vary with the circumstances of each case. As to the time at which the application should be made (without questioning the correctness of the |