Dixon v Wells

JurisdictionEngland & Wales
Date1890
CourtQueen's Bench Division
[DIVISIONAL COURT] DIXON v. WELLS. 1890 May 8. LORD COLERIDGE, C.J., MATHEW, J.

Adulteration - Jurisdiction - Complaint to Justice - Summons issued by another Justice - 11 & 12 Vict. c. 43 (Jervis's Act), s. 1 - 38 & 39 Vict. c. 63 (The Sale of Food and Drugs Act, 1875), s. 6 - 42 & 43 Vict. c. 30 (Amendment Act, 1879), s. 10 - Invalidity of Process - Appearance under Protest.

By 11 & 12 Vict. c. 43, s. 1, in all cases where an information shall be laid before justices that any person has committed any offence within the jurisdiction of such justice or justices … and also in all cases where a complaint shall be made to any such justice or justices upon which he or they shall have authority by law to make any order for the payment of money or otherwise, then “it shall be lawful for such justice or justices to issue his or their summons directed to such person,” requiring him to appear before a justice or justices to answer thereto.

By 38 & 39 Vict. c. 63 (The Sale of Food and Drugs Act, 1875), s. 6, “no person shall sell to the prejudice of the purchaser any article of food or any drug which is not of the nature, substance, and quality of the article demanded by such purchaser, under a penalty …” By s. 20 every penalty imposed by this Act shall be recoverable in the manner prescribed by 11 & 12 Vict. c. 43.

By 42 & 43 Vict. c. 30, s. 10, “in all prosecutions under 38 & 39 Vict. c. 63, and notwithstanding the provisions of s. 20 of the said Act, the summons to appear before the magistrates shall be served upon the person charged with violating the provisions of the said Act within a reasonable time, and in the case of a perishable article not exceeding twenty-eight days from the time of the purchase from such person for test purposes of the food or drug, for the sale of which in contravention to the terms of the principal Act the seller is liable to prosecution, and particulars of the offence or offences against the said Act of which the seller is accused, and also the name of the prosecutor, shall be stated on the summons, and the summons shall not be made returnable in a less time than seven days from the day it is served upon the person summoned.”

A complaint having been made to two justices of a borough against the appellant for an offence under the above Acts, a summons was signed and issued by another justice, who had not heard the complaint, and was served on the appellant. The appellant thereupon appeared before the stipendiary magistrate of the borough, but objected that the summons was invalid and the magistrate had no jurisdiction to hear the case. The magistrate being of opinion that the defect, if any, in the summons was cured by the appearance of the appellant, heard the case and convicted him:—

Held, that the summons, having been signed and issued by a justice who had not heard the complaint, was invalid; that the defect was not cured by the appearance of the appellant, as he appeared under protest; that the provisions of 42 & 43 Vict. c. 30, s. 10, were imperative, and not merely directory, and that as no summons had been duly served in accordance with them the magistrate had no jurisdiction, and the conviction was wrong.

CASE stated by the stipendiary magistrate for Kingston-upon-Hull, pursuant to 42 & 43 Vict. c. 49, s. 33.

A complaint was preferred by the respondent, who was an inspector under the Sale of Food and Drugs Acts, against the appellant, a farmer, before the stipendiary police magistrate for the borough of Kingston-upon-Hull, for that the appellant did, on September 20, 1889, at the said borough, unlawfully sell or deliver to the prejudice of the purchaser a certain article of food — to wit, a quantity of new milk which was procured by the respondent at the place of delivery in the course of delivery to the purchaser and consigned in pursuance of a contract for sale to such purchaser, and which quantity of milk was not of the nature, substance, and quality of the article demanded by such purchaser, contrary to 38 & 39 Vict. c. 63, s. 6, and 42 & 43 Vict. c. 30, s. 3.

On the day fixed for the hearing of the complaint,F1 the appellant duly appeared before the stipendiary magistrate sitting as a Court of Summary Jurisdiction in answer to the summons, and was represented by his solicitor. The summons was, as a fact, signed by Edward Robson, Esq., one of the justices of the peace for the borough, and bore date October 14, 1889, and showed upon the face of it that complaint had been laid before the justice personally on the date named. It was objected on behalf of the appellant that the summons was invalid, and that the Court in consequence had no jurisdiction to hear and determine the matter. It was admitted on behalf of the respondent that no complaint had been laid before the aforesaid justice on the day named, or on any day, but, on the contrary, it was admitted that the complaint had been laid before James Stuart, Esq., and T. W. Palmer, Esq., two justices of the peace for the borough, when sitting as a Court of Summary Jurisdiction at the borough on October 10, 1889, and that it was by them then granted but not signed. It was contended on behalf of the appellant that inasmuch as it was admitted that no complaint had been laid before the aforesaid Edward Robson, Esq., the summons was bad, and that the Court in consequence had no jurisdiction to hear...

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21 cases
  • State (at the prosecution of John Clarke) v Maura Roche
    • Ireland
    • Supreme Court
    • 1 January 1987
    ...Hughes (1879) 4 Q.B.D.; [1874-80] All E.R. Rep. Ext. 1535; 48 L.J.M.C. 151; 40 L.T. 685; 43 J.P. 556; 13 Cox, C.C. 284. Dixon v. Wells (1890) 25 Q.B.D. 249; 59 L.J.M.C. 116; 62 L.T. 812; 54 J.P. 725; 38 W.R. 606; 6 T.L.R. 322; 17 Cox, C.C. 48. D.P.P. v. McQuaid (Unreported, High Court, Murp......
  • R v Manchester Stipendiary Magistrate, ex parte Hill; R v Dartford Justices, ex parte Dhesi; R v Edmonton Justices, ex parte Hughes
    • United Kingdom
    • House of Lords
    • 22 July 1982
    ...charged will be cured by appearance ….". 35My Lords, the Divisional Court in the Gateshead case supported its conclusion by reference to Dixon v. Wells (1890) 25 Q.B.D. 249, a decision of the Divisional Court. Donaldson L.J. said that it was there decided that a summons was invalid because ......
  • DPP v Sheeran
    • Ireland
    • High Court
    • 9 May 1986
    ... 1937 IR 762 COURTS OF JUSTICE ACT 1924 S77(b) DCR 1948 O.44 DCR 1948 r30 DCR 1948 r34 DCR 1948 r64 DCR 1948 r29 DCR 1948 r45 DIXON V WELLS 25 QBD 249 DPP V CLEIN 1983 ILRM 76, 1981 ILRM 465 DPP V GILL 1980 IR 263 DPP V MCQUAID UNREP MURPHY 26.10.84 1984/6/1968 HEMPENSTALL, STATE V SHANNO......
  • Director of Public Prosecutions v Francis Long, Thomas Long and Amanda Johnston
    • United Kingdom
    • Court of Appeal (Northern Ireland)
    • 11 March 2008
    ... ... Discussion [10] The respondents relied particularly on the case of Dixon v Wells [1890] 25 QBD 249. In that case a complaint had been made to two justices of a borough against the appellant for an offence involving the ... ...
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