been complied with, that is to say, at the trial upon a plea duly pleaded in accordance with the requirements of the statute. It is expressly enacted that except upon such plea the truth shall in no case be inquired into. In this case the inquiry has not arrived at the stage at which such a plea can be pleaded, and under these circumstances I think it is clear that evidence of the truth of the libel could not be received. Here I might well conclude what I have to say, because, on looking at the affidavit, it seems to me that this was the only question intended to be raised; but another point has been urged upon us. It is said that the evidence was admissible to show that the alleged libel was a fair comment on the conduct of a public man. It seems to me on looking at the terms of the libel, consisting as it does of vulgar coarse abuse of an extreme character, that it could not possibly be treated as such a comment, and it would therefore be absurd and an abuse of the writ of mandamus to compel the magistrate to receive the evidence on this ground. For these reasons I agree that the rule should be discharged. Rule discharged. Solicitor for prosecutor: T. A. Cox. See 1 Bishop's Crim. Proc. (3d ed.), $ 233, 866-7; Wharton's Crim. Pleadings and Pr. (8th ed.), § 71-3, 361 et seq. See cases cited by counsel arguendo, 60 How. Pr., 20; New York Code Criminal Procedure, SS 207, 208. The affidavit, or complaint, on which a criminal warrant is issued, may, unless otherwise provided by statute, be sworn to before a magistrate other than the one issuing the warrant: Ex parte Bollman, 4 Cranch, 76; 1 Robertson's Trial, Burr, 24, 97; State v. Mullen, 52 Mo., 430. See Ex parte Huget, 8 Eng. Rep., 595, 600, where statute was held to provide otherwise. A grand jury ought not to find an indictment, unless the testimony against the accused, ex parte and unexplained, is sufficient to convict: People v. Hy ler, 2 Park., 570, 574-6; Yaner v. People, 34 Mich., 286; People v. Smith, 19 Cal., 539; N. Y. Code Crim. Proc., $$ 255-8. Though clear and indubitable proof is not required: U. S. v. Lumsden, 1 Bond, 5. An indictment cannot be attacked collaterally, as by a plea, on the ground that it was found by the grand jury without adequate evidence to support it: Hope v. People, 83 N. Y., 418, 422; People v. Hulbut, 4 Denio, 133. In Hope v. People (83 N. Y., 422), the court says, The counsel for the prisoner claims that the plea should be considered as a motion to quash. No such motion was made." The court then proceeds to show the distinction between attacking an indictment directly, by motion to quash, and indirectly by plea. An indictment may be attacked directly by a motion to quash it, when it clearly appears that it was found by the grand jury without any evidence justifying its finding: People v. Res. tenblatt, Abb. Pr., 268, 3 Am. Law Reg. (O.S.), 418; People v. Briggs, 60 How. Pr., 17; U. S. v. Farrington, 2 Crim. Law Mag., 525; Yaner v. People, 34 Mich., 256, 288-9; Charge of Mr. The Queen v. Carden. Justice Field, 2 Sawyer, 670; Whart. on Crim. Pl. and Pr. (8th ed.), § 359. See 4 N. J. L. J., 187; State v. Beebe, 17 Minn., 241. So an indictment will be quashed where illegal evidence was given before the grand jury, and the court is satisfied that without such illegal evidence the indictment might not have been found: People v. Briggs, 60 How. Pr., 17; U. S. v. Farrington, 2 Crim. Law Mag., 525; N. Y. Code Crim. Proc., 256; Wharton's Crim. Pl. and Pr. (8th ed.), § 359. See U. S. v. Reed, 2 Blatchf., 435. Though if there was sufficient evidence before the grand jury finding an indictment upon which they could fairly act, it is for them to determine its weight, and the court will not quash the indictment on the ground that it would not have reached the same conclusion as the jury: People v. Strong, 1 Abb. Pr. (N.S.), 244; State v. Fowler, 52 Iowa, 103; U. S. v. Farrington, 2 Crim. Law Mag., 525. In Iowa, by statute, the fact that the minutes of the grand jury do not show sufficient evidence to warrant the finding of an indictment, is not sufficient to require the court to quash it: Benkert v. Jacoby, 36 Iowa, 272. On a motion to quash an indictment, the allegations therein cannot be controverted by affidavit. Common law proof is required to sustain or avoid such allegations unless by consent of the district attorney other proof is accepted: People v. Clews, 57 How. Pr., 245; U. S. v. Brown, 1 Sawyer, 531. Otherwise on a motion to quash as to allegations affecting the method of the finding of the indictment, or upon what evidence it was found: People v. Briggs, 60 How., 16; U. S. v. Farrington, 2 Crim. Law Mag., 525. See U. S. v. Brown, 1 Sawyer, 531; State v. Beebe, 17 Minn., 241. On a motion to quash an indictment for irregularity, a grand juror may be examined and testify to facts slowing the irregularity, if it do not arise out of misconduct by the grand jury: People v. Briggs, 60 How. Pr., 17; 1879 U. S. v. Farrington, 2 Crim. Law Mag., 525; Gordon v. Com., 92 Penn. St., 216; 1 Crim. Law Mag., 583, 586 note; Low's Case, 4 Maine, 439, 16 Amer. Dec., 271, 281 note. See N. Y. Code Crim. Proc., §§ 265-7; 4 N. J. L. Jour., 187; State v. Hamlin, 47 Conn., 114-6, 2 Crim. Law Mag., 525, 529 note; State v. Beebe, 17 Minn., 241; People v. Smith, 19 Cal., 539. A grand juror will not be compelled to disclose how any member of the grand jury voted: U. S. v. Farrington, 2 Crim. Law Mag., 525, 529 note. And where an indictment, properly certified to, is presented in open court, it becomes a matter of record, and the fact that it was not found by a competent and approved number of grand jurors cannot be controverted by plea: State v. Hamlin, 47 Conn., 95, 114. But see Low's Case, 4 Maine, 439, 16 Amer. Dec., 271, 281 note; People v. Shattuck, 6 Abb. N. C., 33. In New Jersey, the court at oyer and terminer refused, on motion, to strike out one count in an indictment on the ground that the grand jury never voted upon or found it: State v. 4 N. J. L. J., 187. But we think the decision contrary to the current of authorities: People v. Shattuck, 6 Abb. N. C., 33; Low's Case, 4 Maine, 439, 16 Am. Dec., 271; People v. Strong, 1 Abb. Pr. (N.S.), 244. Mere irregularities in the method of drawing jurors are not grounds for quashing an indictment: Cross v. State, 63 Ala., 40, 1 Crim. Law Mag., 627; McCoy v. State, 64 Ala., 201; Dolan v. State, 64 N. Y., 485. It is sufficient that the grand jury act under color of a sufficient drawing and impanelling: Dolan v. People, 64 N. Y., 485, 495. The excusing of one member of a grand jury by the court and the substitution of another by the court, without giving the accused an opportunity to challenge such new member, is not ground for quashing an indictment : State v. Fowler, 52 lowa, 103, 104. 15] [5 Queen's Bench Division, 15.] Dec. 2, 1879. *WHITE, Appellant; REDFERN, Respondent. Public Health Act, 1875 (38 & 39 Vict. c. 55), ss. 116, 117—Unsound Meat, Destruction of-Notice to Owner not necessary. The 116th and 117th sections of the Public Health Act, 1875, give power to a medical officer of health or inspector of nuisances, to seize meat, &c., 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, which may appear to him to be diseased or unsound, and carry it before a justice, who, if it appears to him to be diseased or unsound, is to condemn the same and order it to be destroyed. The person to whom such meat, &c., belongs, is also rendered by section 117 liable to a penalty: Held, that meat might be taken before a justice under the above sections, and condemned without any summons or notice to the person to whom it belonged, and that such person having been subsequently to the destruction of the meat summoned and convicted of an offence under the above sections, such conviction was good. CASE stated by the court of quarter sessions for the county of Warwick. This was an appeal to the court of quarter sessions, from a conviction under sects. 116 and 117 of the Public Health Act, 1875, of which the following is a copy: "Be it remembered that on the 13th day of May in the year of our Lord 1879, at the parish of Rugby in the said county, Thomas White was convicted before us, Edward Allesbey Boughton Ward Leigh, Esquire, and John Lancaster, Esq., two of Her Majesty's justices of the peace in and for the said county, for that on the 5th day of May in the year aforesaid at the parish of Willoughby, in the said county, certain meat, consisting of the carcasses of four sheep and two fore-quarters of another sheep, was found by Valentine Redfern, the inspector of nuisances for the Rugby rural sanitary authority, in a slaughterhouse on the premises of the said Thomas White, there, and the said meat, being then and there deposited in the said slaughterhouse for the purpose of sale or of preparation for sale, and intended for the food of man, was then and there inspected and examined by the said Valentine Redfern, as such inspector as aforesaid, and was by him then and there found to be unwholesome and unfit for the food of man, and was by him thereupon seized, and carried away, and taken before Wil16] liam *Simon Haughton Fitzroy, Esq., one of Her Majesty's justices of the peace for the county of Warwick; and the said meat so seized appearing to the said justice to be unwholesome and unfit for the food of man, the same was condemned by him and ordered to be destroyed, or otherwise disposed of, and we adjudge the said Thomas White, for his said offence to be imprisoned in the house of correction at Warwick, in the said county, for the space of three months." The appeal having been duly entered, was called on for hearing on the 3d day of July, 1879. Thomas White was not present when the meat was seized and carried away in order to be dealt with by the said William Simon Haughton Fitzroy, and no formal notice of its seizure was given to him before it was condemned and ordered to be destroyed by William Simon Haughton Fitzroy, although such notice could easily have been given to him. The servants of Thomas White were present when the meat was seized, and were informed by Redfern that the meat would be taken before a justice to be condemned. Redfern after he had seized the meat, and while he was conveying the same to be condemned by the justice, met Thomas White. Shortly after meeting Redfern, White arrived at his own premises and there saw his servants, and was informed by them that the meat had been so seized as aforesaid. Thomas White did not then, or at any time, appear before the said justice, or apply to be heard on the question of the condemnation of the meat, nor did White appeal against such condemnation in any other way except by his appeal to quarter sessions against the conviction. It was objected, on behalf of the appellant, that there could be no conviction under ss. 116 and 117 of the Public Health Act, 1875, unless and until the article seized and carried away by the inspector as unwholesome had been in due form of law, as provided by the said last mentioned sections, condemned and ordered to be destroyed by a justice, and that such condemnation and order for destruction of the appellant's property could not legally be made ex parte, and without notice to him to attend and (if he so chose) to show cause against the same. *The court of quarter sessions overruled the objec. [17 tion, and upon the evidence adduced, found that the appellant was guilty of the offence as charged in the conviction. They accordingly affirmed the conviction subject to a case. Vesey Fitzgerald, for the respondent. Channell, for the appellant, cited Gill v. Bright ('). FIELD, J.: I am of opinion that the conviction should be affirmed, and that the objection which has been taken should (1) 41 L. J. (M.C.), 22. 19 29 ENG. REP. not prevail. The point is one of some difficulty, and but for the provisions of the 308th section of the Public Health Act, 1875, giving compensation to any person sustaining damage by reason of the exercise of the powers of the act, in relation to any matter as to which he is not himself in default, I should have had still greater difficulty. I feel very strongly the possible injustice that might be done by depriving a man of his property without giving him an opportunity of being heard, and without giving him compensation if not himself in default, and it would require very strong words in an enactment to lead me to the conclusion that it was intended that this might be done. We must consider first the general object of the act, and then the language used. The act is the Public Health Act, 1875, and it contains many provisions for the abatement of a variety of nuisances in the interest of the public, and among other provisions this one with regard to unsound meat. The prac tice of selling unsound meat is, as every one who reads the newspapers must know, a great evil, which requires prompt and stringent measures for its repression. To prevent the evil it is obvious that it may be necessary that very rapid. and summary proceedings should be taken. It is necessary therefore that the power to take these measures should be intrusted to some person of authority, who will not be likely to abuse them, and who will be in a position to act promptly. Accordingly the 116th section of the act, as it seems to me, intrusts such powers to the medical officer of health and the inspector of nuisances. Either of these officers may, at all reasonable times, inspect and examine any animal, carcass, 18] meat, &c., *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 it appears to him to be diseased, or unsound, or unwholesome, or unfit for the food of man, he may seize and carry away the same in order to have the same dealt with by a justice. The responsibility and the duty is imposed on him of satisfying himself that the article in question is exposed for sale, or deposited for the purpose of sale, or of preparation for sale, and intended for the food of man, and if he is so satisfied he may seize. Then is he bound to give notice to the owner before proceeding to apply to a justice to condemn the article so seized? It is contended that he is bound to give such notice; by which I suppose is meant that he must take out a summons, as is usual in the case of most proceedings before magistrates. Ordinarily such a proceeding would be necessary. The Legislature generally cannot be considered to |