62 & 63 Vict. c. 51, s. 12—Labels.]—The label referred to in s. 8 of the Sale of Food and Drugs Act, 1875 (supra), shall not be deemed to be distinctly and legibly written or printed within the meaning of that section unless it is so written or printed that the notice of mixture given by the label is not obscured by other matter on the label: Provided that nothing in this enactment shall hinder or affect the use of any registered trade mark, or of any label which has been continuously in use for at least seven years before the commencement of this Act (1st Jun., 1900): but the Controller-General of Patents, Designs, and Trade Marks shall not register any trade mark purporting to describe a mixture unless it complies with the requirements of this enactment. 38 & 39 Vict. c. 63, s. 28.]-Nothing in this Act contained shall affect the power of proceeding by indictment or take away any other remedy against any offender under this Act, or in any way interfere with contracts and bargains between individuals, and the rights and remedies belonging thereto. [Cf. 52 & 53 Vict. c. 63, s. 33, ante, p. 170.] 38 & 39 Vict. c. 55 (Public Health Act, 1875), 88. 116-119.]-Summary proceedings for sale of unsound meat, etc., intended for the food of man. 54 & 55 Vict. c. 76 (Public Health London Act, 1891), s. 47.]—Similar provisions as to the sale of unsound food in London. See R. v. Dennis [1894] 2 Q. B. 458, where the defendant was on his election tried by indictment; and see Hunt, London Government, vol. 1, p. 309. 62 & 63 Vict. c. 51, s. 19-Time for proceedings and regulations as to summons.]-(1) When any article of food or drug has been purchased from any person for test purposes, any prosecution under the Sale of Food and Drugs Acts in respect of the sale thereof, notwithstanding anything contained in s. 20 of the Sale of Food and Drugs Act, 1875, shall not be instituted after the expiration of twenty-eight days from the time of the purchase. [The prosecution is instituted when the information is laid. Brooks v. Bagshaw [1904] 2 K. B. 798, 68 J. P. Rep. 514.] (2) In any prosecution under the Sale of Food and Drugs Acts the summons shall state particulars of the offence or offences alleged, and also the name of the prosecutor, and shall not be made returnable in less time than fourteen days from the day on which it is served, and there must be served therewith a copy of any analyst's certificate obtained on behalf of the prosecutor. [See McQueen v. Jackson [1903] 2 K. B. 163.] 38 & 39 Vict. c. 63, s. 27 (1)—Forgery of warranties.]-Any person who shall forge, or shall utter, knowing it to be forged for the purposes of this Act, any certificate or any writing purporting to contain a warranty, shall be guilty of a misdemeanor and be punishable on conviction by imprisonment for a term of not exceeding two years with hard labour. 62 & 63 Vict. c. 51, s. 20-Defence of warranty.]—A warranty or invoice shall not be available as a defence to any proceeding under the Sale of Food and Drugs Acts unless the defendant has, within seven days after service of the summons, sent to the purchaser a copy of such warranty or invoice with a written notice stating that he intends to rely on the warranty or invoice, and specifying the name and address of the person from whom he received it, and has also sent a like notice of his intention to such person. (2) The person by whom such warranty or invoice is alleged to have been given shall be entitled to appear at the hearing and to give evidence, and the court may, if it thinks fit, adjourn the hearing to enable him to do so. (3) A warranty or invoice given by a person resident outside the United Kingdom shall not be available as a defence in any proceeding under the Sale of Food and Drugs Acts unless the defendant proves that he had taken reasonable steps to ascertain and did in fact believe in the accuracy of the statement contained in the warranty or invoice. (4) Where the defendant is a servant of the person who purchased the article under a warranty or invoice, he shall, subject to the provisions of this section, be entitled to rely on section twenty-five of the Sale of Food and Drugs Act, 1875, and section seven of the Margarine Act, 1887 (50 & 51 Vict. c. 29), in the same way as his employer or master would have been entitled to do if he had been the defendant, provided that the servant further proves that he had no reason to believe that the article was otherwise than that demanded by the prosecutor. (5) Where the defendant in a prosecution under the Sale of Food and Drugs Acts has been discharged under the provisions of section twenty-five of the Sale of Food and Drugs Act, 1875, as amended by this Act; any proceedings under the Sale of Foods and Drugs Acts for giving the warranty relied on by the defendant in such prosecution, may be taken as well before a court having jurisdiction in the place where the article of food or drug to which the warranty relates was purchased for analysis as before a court having jurisdiction in the place where the warranty was given. (6) Every person who, in respect of any article of food or drug sold by him as principal or agent, gives to the purchaser a false warranty in writing, shall be liable on summary conviction, for the first offence to a fine not exceeding twenty pounds, for the second offence to a fine not exceeding fifty pounds, and for any subsequent offence to a fine not exceeding one hundred pounds, unless he proves to the satisfaction of the court that when he gave the warranty he had reason to believe that the statements or descriptions contained therein were true. [For the effect of the section, see Manners v. Tyler [1902] 1 K. B. 585; 71 L. J. (K. B.) 385: Whitaker v. Pomfret [1902] 1 K. B. 661; 71 L. J. (K. B.) 353: Irving v. Callow Park Dairy Co., Ltd., 66 J. P. 804.] CHAPTER VI. OFFENCES AGAINST PUBLIC MORALS AND POLICE. SECT. 1. Bigamy, p. 1167. 2. Common Nuisance, p. 1180. (a) Nuisances to Public Comfort, Enjoyment, or Health, p. 1181. (b) Acts Injurious to Public Safety, p. 1186. (c) Acts Injurious to Public Morals or Decency, p. 1188. Obscene Exhibitions and Publications, p. 1190. Illegal Lotteries, p. 1205. Unlicensed Suburban Racecourses, p. 1207. (d) Offences as to Corpses, p. 1207. (e) Interference with Public Rights of Passage, p. 1210. Non-repair of Highways, p. 1220. 3. Inciting Infants to Betting or Borrowing Money, p. 1242. 5. Refusing to execute a Public Office, p. 1250. 6. Sending Unseaworthy Ship to Sea, p. 1252. 7. Cruelty to Animals, p. 1253. 8. Sending Postal Packets enclosing Deleterious Matter, etc., p. 1254. 9. Corrupt Practices, etc., at Parliamentary Elections, p. 1254. 10. Corrupt Practices, etc., at Municipal Elections, p. 1266. 11. Bribery and Corruption of or by Members and Servants of Certain Public Bodies, p. 1272. SECT. 1. BIGAMY. Statute. 24 & 25 Vict. c. 100 (Offences against the Person Act, 1861), s. 57— Definition and punishment of bigamy.]-"Whosoever, being married, shall marry any other person during the life of the former husband or wife, whether the second marriage shall have taken place in England or Ireland or elsewhere, (a) shall be guilty of felony, and being convicted (a) As to the powers of colonial legislatures to punish extra-territorial bigamy, see McLeod v. Att.-Gen. for N. S. W. [1891] App. Cas. 453: re Criminal Code of Canada, 26 Canada, 461: R. v. Hilaire [1903] 3 N. S. W. State Rep. 228. thereof shall be liable to be kept in penal servitude for any term not exceeding seven years;' Venue." And any such offence may be dealt with, inquired of, tried, determined and punished in any county or place in England or Ireland where the offender shall be apprehended or be in custody, in the same manner in all respects as if the offence had been actually committed in that county or place; "Provided that nothing in this section contained shall extend to any second marriage contracted elsewhere than in England and Ireland by any other than a subject of [his] Majesty or to any person marrying a second time, whose husband or wife shall have been continually absent from such person for the space of seven years then last past, and shall not have been known by such person to be living within that time, or shall extend to any person who, at the time of such second marriage, shall have been divorced from the bond of the first marriage, or to any person whose former marriage shall have been declared void by the sentence of any court of competent jurisdiction." [Bigamy was first made felony by 1 Jac. 1, c. 11, repealed and re-enacted by 9 G. 4, c. 31, s. 22, which is reproduced in the above enactment. The Act of James applied only to second marriages within England and Wales. Kel. (J.), 79, 80; 1 Hawk. c. 42, s. 5. It excepted marriage after divorce a mensâ et thoro; 1 Hale, 694; and marriages within the age of consent. 3 Co. Inst. 59.] Indictment. Central Criminal Court, to wit:-The jurors for our lord the King upon their oath present, that J. S., on the first day of April, in the year of our Lord, at the parish of C., in the county of D., did marry one A. C., spinster, and her the said A. then and there had for his wife; and that the said J. S. afterwards, and whilst he was so married to the said A. as aforesaid, to wit, on the first day of June, in the year of our Lord , at the parish of F., in the county of G., and within the jurisdiction of the said court, feloniously [and unlawfully] did marry and take to wife one M. Y., and to her the said M. was then and there married, the said A., his former wife, being then alive; against the form of the statute in such case made and provided, and against the peace of our lord the King, his crown and dignity. [And the jurors aforesaid, upon their oath aforesaid, do further present, that the said J. S. afterwards, to wit, on the 10th day of June, in the year last aforesaid at the parish of B., in the county of E., within the jurisdiction of the said court was apprehended [or, that the said J. S. now is in custody at the parish of B., in the county of E., and within the jurisdiction of the said court] for the felony aforesaid.] As to the venue, see ante, p. 46, and supra ; and compare similar provisions in the Forgery Act, 1861 (s. 41, ante, pp. 705,711), and the Commissioners for Oaths Act, 1889 (s. 9, ante, p. 1054). Where the indictment is not preferred in the county where the second marriage took place, but in that county in which the prisoner was apprehended or is in custody, it need not state the fact of the apprehension or custody in the latter county; for it will appear by the caption of the indictment that the prisoner was in custody in the county in which the indictment was found. R. v. Whiley, 1 C. & K. 150, which case is wrongly reported in 2 Mood. C. C. 186. See R. v. Smythies, 1 Den. 498; 2 C. & K. 878, 881; 19 L. J. (M. C.) 31. From that case (in which R. v. Whiley is explained) it appears that the prisoner need not be shown ever to have been in custody within the jurisdiction of the court of trial till the moment of his surrendering to take his trial As to amendment, see R. v. Smith, 1 F. & F. 36. In R. v. Fraser, 1 Mood. C. C. 407, the first marriage was laid in Kent, the second in Surrey, the venue was Middlesex, and it was alleged that the prisoner was apprehended without stating any place, and the conviction was held bad, but no suggestion was made that the defect was cured by the caption; this case, therefore, may now be considered no authority. 1 Russ. Cr. (6th ed.) 665, n. The concluding averment in brackets of the form of indictment given above appears, therefore, to be unnecessary, but it is generally inserted. The words "or elsewhere" in the enactment mean "in any other part of the world," and are not limited to the King's dominions. Earl Russell's case [1901] App. Cas. 446; 70 L. J. (K. B.) 998; 20 Cox, 51. A British subject resident in England, who married a second wife in the lifetime of the first, both marriages being solemnized in Scotland, was held liable to be indicted and convicted of bigamy in England, under 9 G. 4, c. 31, s. 22, of which 24 & 25 Vict. c. 100, s. 57, is a re-enactment. R. v. Topping, Dears. 647; 25 L. J. (M. C.) 72; and see R. v. Fraser, R. v. Whiley, ubi supra. Where the second marriage took place elsewhere than in England and Ireland, it should be stated that the accused is a British subject (see ante, p. 1168). Under 1 Jac. 1, c. 11 (rep.), the defendant might be tried in the county where he was apprehended, but the words "in custody" were not in that Act. Where, the defendant being in custody in the county of W. for larceny, a bill was preferred against him for bigamy in another county, upon which he was detained by order of the court; it was sufficient to warrant the trial in the county of W., because, being in custody upon a criminal charge, he was liable to be tried where he was imprisoned. R. v. Gordon, R. & R. 48. Where an indictment for bigamy alleged that the prisoner was apprehended in Gloucestershire, and this was not proved; Channell, B., allowed an amendment, stating that the prisoner was in custody in that county. R. v. Smith, 1 F. & F. 36. The allegation that the defendant married again, "the said A. his former wife being then alive," sufficiently charges the offence, without any further averment, that he was still married to A. when the offence was committed. Murray v. R., 7 Q. B. 700; 14 L. J. (Q. B.) 357; 1 Cox, 202: R. v. Apley, 1 Cox, 71. Felony penal servitude for not more than seven nor less than three years, or imprisonment, with or without hard labour, not exceeding two years. 24 & 25 Vict. c. 100, s. 57; 54 & 55 Vict. c. 69, s. 1, sub-ss. 1, 2 (ante, p. 235). As to requiring the offender to enter into recognizances and find sureties for keeping the peace, 21 & 25 Vict. c. 100, s. 71 (ante, p. 778). This offence is not triable at quarter sessions. 5 & 6 Vict. c. 38, s. 1 (ante, p. 126). Evidence for the Prosecution. The following matters must be proved on the part of the prosecution:1. Celebration of the first marriage and identity of the parties. 2. The validity of the first marriage. 3. That it subsisted at the date of the second marriage. 4. Celebration of the second marriage. The first wife or husband is not a competent witness for the prosecution on any part of the case, either at common law (1 Hawk. c. 42, s. 8) or under the Criminal Evidence Act, 1898 (61 & 62 Vict. c. 36). R. v. Green, Hertford Assizes, Nov. 18, 1899, 34 L. J. Newsp. 622, Wills, J. In R. v. Ayley, 15 Cox, 328, the alleged first wife was allowed to be called on production of a certificate of her previous marriage to another man and of his death after her alleged marriage to the defendant. The second wife is a competent witness as soon as the first marriage is proved. 1 Hale, 693. See R. v. Peat, 2 Lewin, 111, 288; 1 Russ. Cr. (6th ed.) 715, n.: R. v. Wakefield, 2 Lewin, 279; Murray's Report, p. 155; M. & M. 197, n.; and ante, p. 398. 74 A.C.P. |