LAWRANCE, J. SHORTT v. ROBINSON. [68 L. J. Q.B. 352.] Adulteration-Analyst's CertificateJustices' own Knowledge of Article Alleged to be Adulterated-Sale of Food and Drugs Act, 1875 (38 & 39 Vict. c. 63), s. 6. Justices are not bound, upon the hearing of a complaint under section 6 of the Sale of Food and Drugs Act, 1875, to discard their own knowledge of the properties of the article alleged to be adulterated, although such knowledge be derived from a report upon the particular article by authorities at Somerset House, which report has been produced by the defendant for the mere cross-examination of the analyst, and is not in evidence in the procedings. CARTWRIGHT v. SCULCOATES UNION, App. which is admissible. In the present case the simple method of determining the rateable value of the premises which is ordinarily used was not available, and the arbitrator therefore had recourse to the most obvious and important factor in determining that value-namely, the facilities for carrying on the trade which was carried on upon the premises. One way of ascertaining those facilities is by shewing what can be done by what has been done. Looking at all the findings of the arbitrator together, I do not think that upon the whole they mean more than this, although they leave something to be desired. At the end of the case the arbitrator holds that, although the profits of the trade, as such, cannot be rated, yet in estimating the rateable value of a public-house, if the ability to carry on a gainful trade therein adds to the value of such public-house, that value cannot be excluded merely because it is referable to the trade. That holding, it seems to me, states correctly the proper standard for estimating the rateable value of the house; and if the case had rested upon that, I should have had nothing further to say. But the other holdings of the arbitrator deal with certain things, as to which I have had some doubt whether they ought to be taken into consideration. But upon the whole I think that the final holding shews that the arbitrator excluded, and intended to exclude, from his consideration that which is ordinarily meant by the goodwill of a business, and I therefore think that the appeal must be dismissed. Appeal dismissed. Solicitors-Rollit & Sons, agents for Rollit [Reported by Joseph Smith, Esq., Reg. v. Field (64 L. J. M.C. 158) followed. Case stated by Justices who had dismissed an information under section 6 of the Sale of Food and Drugs Act, 1875, against the defendant, a grocer, for selling caper tea adulterated with 3.5 per cent. of mineral matter, consisting of sand, small stones, &c. At the hearing it was proved that the tea had been purchased at the defendant's shop at the instance of the prosecutor, a county inspector of weights and measures; that it had been divided into three parts for analysis; and that the result of the analysis was that it contained 3.5 per cent. of the foreign ingredients mentioned. This was proved by the county analyst. In cross-examination, the analyst was asked whether he had read in a newspaper called the Grocer an account of a case recently heard at the Manchester Police Court, in which a report on the subject of caper tea by the authorities at Somerset House was produced which shewed that extraneous matter was necessarily present in caper tea owing to its method of production. The analyst admitted he had read a report of the case, though not in the Grocer newspaper. Objection was taken on behalf of the prosecutor to the admission of this account of the Somerset House report as evidence. The Justices allowed the question, though SHORTT v. ROBINSON. they held the account produced of the report was not evidence. It was, however, attached to the present Case. The analyst stated that in sixty-five analyses of caper tea, sand and stones amounted to 1 per cent. or less, and that in only six instances did the adulteration amount to 3 per cent. It was contended for the prosecutor that an adulteration of 3.5 per cent. having been proved, there must be a conviction. The Justices, without calling on the defendant, found that the purchaser asked for caper tea; that caper tea was well known as a kind manufactured for using in small quantities by way of addition to ordinary tea for flavouring it; that it was grown on friable and sandy soil under conditions which afforded unusual chances for the introduction of stones, &c.; and that a condition of its successful growth was that rain should be very copious. Having regard to these facts, the Justices did not consider themselves warranted in convicting the defendant in respect of the presence of such a percentage as 3.5 per cent. of extraneous matter, the nature of which was peculiarly incident to the growth of caper tea-more particularly as it appeared from the evidence of the analyst himself that there was necessarily some percentage of the extraneous matter complained of. The question for the Court was whether the Justices were warranted in considering, on the facts before them, that the presence of extraneous matter to the extent of 3.5 per cent. did not necessarily constitute an adulteration. Etherington Smith, for the prosecution. -The uncontradicted report of the analyst was sufficient. The object of the Act being to protect purchasers of food, vendors of adulterated articles must bring themselves within the exception. Here the Justices did not call on the defendant to negative the affirmative evidence of the analyst. They acted on the Somerset House report, which was not evidence, and there was no evidence that this caper tea was in the same state as it was when brought out of bond. Following Reg. v. Field [1895],' the Justices here acted upon their own knowledge of the subject-matter derived from their reading of the Somerset House report; but in that case the Justices were dealing with cocoa, the properties of which may be well known to any one, and is a very different thing to caper tea, the extraneous ingredients of which can hardly be common knowledge-Dargie v. Dunbar [1884].2 Section 24 of the Sale of Food and Drugs Act, 1875, throws the burden on the defendant of proving that he is protected; and section 79 of the Summary Jurisdiction Act, 1879 (42 & 43 Vict. c. 49), contains provisions which shall apply to proceedings before Courts of summary jurisdiction, and which must of necessity be complied with. Appleton, for the defendant, was not called upon to argue. The LAWRANCE, J.-I think the Justices came to a right conclusion, and, in my opinion, we should not disturb it. The analyst's report was that the sample of tea contained extraneous matter consisting of stones and sand to the extent of 3.5 per cent., and the question is, were the Justices warranted in considering that this amount of extraneous matter was normal? analyst attended to give evidence in support of his report, and was cross-examined upon it, as to whether as a fact caper tea did not in its normal condition of necessity contain such and such an amount of extraneous matter. As to this, the only way in which the Justices could form an opinion was upon the crossexamination of the analyst himself. The analyst admitted he had seen and read the report of the authorities at Somerset House upon the production of caper tea. The admission of the report as evidence of fact was objected to on behalf of the prosecutor, but the result of its production for the cross-examination of the analyst was that the Justices in their own minds were satisfied that the adulteration, to the extent of 3.5 per cent. only, was normal, and without calling upon the defendant to say that the tea was in the same state in which he (1) 64 L. J. M.C. 158. (2) 21 Scot. Law Rep. 536. SHORTT v. ROBINSON. bought it, and apparently bringing their own knowledge to bear on the subject, dismissed the information, being satisfied that a considerable quantity of foreign matter was always present in caper tea, and that in this instance it did not exceed the normal amount. CHANNELL, J.-I also think that the decision of the Justices must be affirmed. They were not wrong in law, except, perhaps, as to the reception of something which was not strictly evidence, but which seems to have made an impression on their minds. However, in the conclusion they came to upon their view of the facts I think they were justified. Before the case began I did not know the facts relative to the production of caper tea; but the Justices seem to have treated them as well known. As to this, if they were acting upon their own knowledge, Reg. v. Field' shews that they were entitled to do so. It seems to me, however, that they treated the facts as to caper tea being well known-to some extent at any rate -because they read the printed report of the Somerset House authorities, which sets out that this particular tea usually contains extraneous ingredients. The facts in that report cannot be said to have been properly proved, but, on the assumption that they were, the finding was right. The Justices thought that the adulterated ingredients in the defendant's tea were so near to the normal in amount that they were not justified in convicting him. Perhaps, strictly, they ought to have intimated to the prosecutor that they had been impressed with the facts set out in the Somerset House report, and did not intend to convict if those facts were properly proved, and have asked him whether he insisted on carrying the case further, when in all probability the prosecution would have been dropped. If it had not been, the case should have been adjourned, in order that the facts stated in the report might be proved by proper evidence. Apparently the Justices in their own minds regarded the Somerset House report as evidence, and treated it as such. In this they were wrong. At the worst, however, it was but a misreception of evidence; Gaming-Place used for Betting with Persons Resorting Thereto-Inclosure on Racecourse-Betting Act, 1853 (16 & 17 Vict. c. 119); Preamble; ss. 1, 2, and 3. An inclosure on a racecourse to which bookmakers, in common with the rest of the public, and on the same terms, are admitted and carry on their business, and the owners of which have no interest in any betting, is not a place which the Betting Act, 1853, forbids to be opened, kept, or used for the purposes therein mentioned. To constitute such a place there must be a business of betting conducted by an owner, occupier, manager, keeper, or some other person vested with the authority of an owner. Decision of the COURT OF APPEAL ([1897] M.C. 235; 66 L. J. Q.B. 601 ; [1897] 2 Q.B. 242) (LORD HOBHOUSE and LORD DAVEY dissenting) affirmed. Eastwood v. Millar (43 L. J. M.C. 139; L. R. 9 Q.B. 440), Haigh v. Sheffield Corporation (44 L. J. M.C. 17; L. R. 10 *Coram, The Lord Chancellor (Earl of Halsbury), Lord Watson, Lord Herschell, Lord Hobhouse, Lord Ashbourne, Lord Macnaghten, Lord Morris, Lord Shand, Lord Davey, and Lord James of Hereford. POWELL v. KEMPTON PARK RACECOURSE Co., H.L. Appeal from a decision of the Court of Appeal, reversing the judgment of the Lord Chief Justice, which granted an injunction to restrain the respondents from opening or keeping a certain inclosure known as "The Reserved Inclosure" for the purpose of persons using such inclosure using the same for the purposes offirst, betting with persons resorting thereto; or secondly, money being received by or on behalf of such persons using the same as deposits made on horseraces; and from knowingly and wilfully permitting the said inclosure to be used by such persons for the said purposes, or either of them; and from otherwise carrying on their business in a manner contrary to the Betting Act, 1853, or to its memorandum of association, and from expending moneys the assets of the respondent company in and about the maintenance and conduct of such illegal business. The appellant is a shareholder in the respondent company, which is incorporated for the purpose of carrying on, and does carry on, the business of a racecourse company, and from time to time holds and conducts race meetings under the rules of the Jockey Club and the rules of the National Hunt Committee, in accordance with the provisions of the articles of association. The respondents are the owners and occupiers of lands and premises known as the Kempton Park Racecourse, containing a considerable number of acres and inclosed by a substantial fence, and on which they have laid out a racecourse and hold horse-race meetings. Adjoining the course and forming part of the said lands the respondents have fenced off and inclosed by iron railings a piece of ground or inclosure known as the "reserved inclosure." This reserved inclosure does not exceed a quarter of an acre in extent. It is uncovered except that on the far side of it from the racecourse there are raised tiers of seats covered over with a roof. This erection forms part of a building known as the grand stand, which contains various rooms and offices used by the respondents in conducting the race meetings and from the outside of which the races can be watched by the spectators. Any member of the public, including professional bookmakers and betting men, is admitted by the respondents to the said racecourse on payment of 18. on ordinary occasions, and 2s. 6d. on special occasions, and to the said reserved inclosure on payment of a further fee of the difference between the entrance fee paid and 17. The number of persons admitted to the said reserved inclosure on race days varies from 500 to 2,000, and among such persons there are always a certain number, varying from 100 to 200, who are profes sional bookmakers. These professional bookmakers are admitted upon the same terms as and have no greater or less right than any other members of the public. In the said reserved inclosure these professional bookmakers carry on their business of betting. Shortly put, each bookmaker is ready and willing to bet, and goes there for the purpose of betting for ready money with any person in the inclosure, and on credit with any person known to the particular bookmaker or about whose financial position he has any satisfactory information. Owing to the numbers present and the length of the interval between the various races, it is, as a rule, physically impossible for any one bookmaker to bet with every person in the reserved inclosure. There is no other limitation to the betting done by any individual bookmaker, except that according to the state of his book prudence may require him for the time being to refuse to bet against or on one or more particular horse or horses. In the up-keep of the said reserved inclosure and its maintenance for the purposes for which it is used the respondents spend the company's assets. During the course of the trial it was admitted by counsel for the appellant that the facts relating to the reserved inclosure, the use made of it, and the betting carried on therein, were correctly stated in the pleadings and particulars. It was also admitted by counsel for the respondents that the respondents were aware when H POWELL V. KEMPTON PARK RACECOURSE CO., H.L. they admitted persons to the reserved inclosure that some of such persons were professional bookmakers, and intended to and would use it for the purpose of carrying on therein their betting business in the manner described in the pleadings and particulars, and that the respondents in this sense knowingly permitted such use to be made of it. It was stated on behalf of the appellant as material facts that (1) Inclosed spaces have been in existence at race meetings for a long time prior to the passing of the Betting Act of 1853, and in some cases from the beginning of the century, in which betting took place, and for the purpose of betting. Such inclosed spaces were sometimes 66 (4) Railed inclosures called "betting rings" or posts" in parts of the racecourse or grounds remote from or not belonging to the grand stand; (B) Railed inclosures adjacent to the grand stand; (c) Separate and detached buildings on the racecourse or grounds. (2) In other cases the grand stand itself, or some part thereof, was used for the same purpose. Prior to the passing of the Betting Act of 1853, the betting in these inclosed spaces was for the most part credit betting. Ready-money betting did occasionally take place therein, but only to a small extent. (3) The practice of giving tickets was not adopted by bookmakers until recent years. The grounds of the decision of the majority of the Judges of the Court of Appeal were that the reserved inclosure as described in the pleadings, particulars, and admissions was not a "place" within the meaning of section 1 of the Betting Act, 1853, and that professional bookmakers using the said inclosure in the manner described in the pleadings, particulars, and admissions were not persons using the same in such a manner as to make the reserved inclosure a place illegally used within the meaning of the said statute. The preamble and relevant sections of the Betting Act, 1853, are stated in the judgments. Asquith, Q.C., and H. S. Cautley for the appellant. This is a friendly action brought to determine an important question of law, to decide legal rights affecting the position of the respondents. But there is no foundation for the suggestion of improper collusion, or perversion or suppression of facts. The questions involved arise under what in the Short Titles Act, 1892 (55 & 56 Vict. c. 10), is called the Betting Act, 1853. It is The statute is aimed at the business of betting. The preamble states its object to be the suppression of what are called "betting-houses." The 1st section prohibits the opening of any "house, office, room, or other place." It is significant that section 2 omits the word "other" before place, and section 3 forbids the "knowingly and wilfully " permitting the "house, office, room, or other place" to be used for the purposes specified. The reserved inclosure here is clearly a "place" within the meaning of the statute. not necessary that any particular spot should be assigned to the bookmaker or person betting. The "place" need only be an area where the bookmaker can easily be found. It is not defined by structure or superficial area, but by the purposes for which it is used. It is thus beside the mark to object that Salisbury Plain or the City of London are in the sense contended for by the appellant "places." In their whole extent they could not be used as business places. In Doggett v. Catterns [1864, 1865],' though the decision was on section 5 of the Act, which deals with the recovery of a deposit, Pollock, C.B., and Blackburn, J., held that a clump of trees in Hyde Park satisfied the statutory meaning of " place." The best report of the case is in the Law Journal, where Blackburn, J., is stated to have said: "I do not say that an open field is not a place' which may come within the description of the term 'place' in the statute." [LORD WATSON.-I do not see why definite circumscription should be necessary.] In Shaw v. Morley [1868] an attempt was made to limit the Act to the mischiefs enumerated in the preamble, where the only terms used are 'betting houses or offices," but the Court held that tem 66 (1) 34 L. J. C.P. 46, 159; 17 C. B. (N.S.) 669 ; in err. 19 ib. 765. (2) 37 L. J. M.C. 105; L. R. 3 Ex. 137. |