1873 NICHOLS V. HALL. lant, and that they were suffering with a contagious or infectious disease called the foot and mouth disease, and that the justices held it unnecessary to prove that the appellant knew that the animals were so affected, but that there was no evidence before them to shew that the appellant knew that the said animals were so affected until he was served with a summons for the alleged offence. The question for the Court was whether, in order to convict the appellant of the said offence it was sufficient to prove that the said animals were affected as aforesaid, and that the appellant did not give notice, without giving evidence that the appellant knew that they were so affected. Graham (Raymond with him), for the appellant. The words "with all practicable speed" clearly shew that the order contemplates knowledge on the part of the person offending. How can it be practicable that he should give notice before he knows? He cited Emmerton v. Mathews (1); Core v. James. (2) [KEATING, J. It appears to me that on the case as stated we must take it that the appellant had no knowledge of the fact that the animals were affected.] Merewether for the respondent. The object of the statute and order is to prevent the spread of cattle disease, and if the construction suggested on behalf of the appellant is correct the provision for that object will become, practically speaking, ineffective. It is extremely difficult to prove knowledge in such cases. A farmer has only to keep out of the way if he has beasts which are suspected, and neglect to avail himself of the means of knowledge, and he cannot be convicted. Suppose the farmer entrusts the care of the beasts to a bailiff and is not personally cognizant of anything concerning them [HONYMAN, J. Then the bailiff will be liable.] In Core v. James (2) it was clearly the opinion of Lush J. that if the servant had had guilty knowledge the master would have been liable; but there neither master nor servant knew. Here the only question intended to be submitted was whether the mere (1) 7 H. & N. 586; 31 L. J. (Ex.) 139. (2) Law Rep. 7 Q. B. 135. fact that the master was ignorant is sufficient to prevent there being any offence against the order by him. It is obvious that somebody in charge of the beasts must have known, since they were apparently suffering from the disease as early as the 3rd of August. [HONYMAN, J. The case says nothing about the knowledge of any bailiff or servant of the appellant. The master might, perhaps, be convicted for the guilty act of his bailiff. Possibly the justices might not have been far wrong if on the facts of the case they had found that the appellant did know that the beasts were affected, but they have not found knowledge in anybody. The bare point raised for us is, whether knowledge is a necessary ingredient in the offence.] If it appears that the beasts were suffering from the disease, the person in possession ought to know that such was the fact, and is to be treated as knowing. The words "as soon as practicable" only refer to such considerations as the distance of the farm from the place where the police constable may be stationed, and similar considerations; not to any question of knowledge. [HONYMAN, J. Can you put a different construction on the words here from that which must be put on them in the previous part of the clause? Clearly the person in possession could not be bound to separate the diseased beasts from others until he knew they were diseased.] If knowledge must be shewn, a defendant may be entitled to say, though the beasts presented unusual symptoms, I did not absolutely know that they were suffering from foot and mouth disease, because the symptoms were also consistent with some other disorder which is very difficult to distinguish from foot and mouth disease, but which is not contagious; and endless difficulties and uncertainties would be thrown in the way of the working of the order. KEATING, J. I am of opinion that this conviction must be quashed. The question submitted is whether, in order to convict the appellant, it was sufficient to prove that the animals were affected by a contagious disease, and that the appellant gave no 1873 NICHOLS v. HALL. 1873 NICHOLS v. HALL. notice of their being so affected without evidence that he knew of their being so affected. The 75th section of the Contagious Diseases (Animals) Act provides that the Privy Council may make such orders as they think expedient, for, among other purposes, "requiring notice of the appearance of any such disease among animals." And it is further provided by the 103rd section, that "if any person acts in contravention of, or is guilty of any offence against, this Act or any order made by the Privy Council in pursuance of the Act," he shall be liable to a penalty not exceed ing 207. In pursuance of the 75th section, the Privy Council have made an order which directs that the person in possession or charge of the animals affected with any contagious disease shall, "with all practicable speed," give notice of their being so affected. It must be taken on the case as stated that the appellant did not know that the animals in question were diseased. The magistrates are desirous of knowing whether the mere fact of the animals being diseased is sufficient to convict the person in possession of them or in whose field they were, even if he were not cognizant of the fact. I am of opinion that knowledge is an essential ingredient of the offence. I do not see how without knowledge a person can fairly be said to act in contravention of an order worded as the one now before us is. The provision is that notice is to be given "with all practicable speed." I cannot understand how, on any reasonable construction of these words, it can be said that a man can neglect to give notice with all practicable speed without knowledge of the fact of which he is to give notice. It has been contended on behalf of the respondent that the Act is aimed at the prevention of a great public evil, and that if it is necessary to prove knowledge it will be difficult or impossible to give effect to its provisions, and many cases were suggested in which the statute and orders might be evaded. There are two answers to this argument. First, this is a penal enactment, and we are bound, according to a well-established principle of interpretation, whatever the consequences, to construe it strictly. I do not deny that in construing the enactment we are entitled to take into consideration its object and the surrounding circumstances, but I do not find any such ambiguity in its terms as would entitle us to strain the language for the purpose of giving effect to the alleged object. I am quite clear that the words of the order import the necessity of knowledge in order that there may be a contravention of it. I will not refer to the cases that have been cited at length. The case of Core v. James (1), referred to by Mr. Graham, is, no doubt, in favour of the view that knowledge is essential, but I do not attach very much weight to that decision as an authority governing the present case, for it appears to me that each case of this sort must depend on the wording of the particular statute which may be applicable to it. Here, I think, no doubt can arise on the words of the order. Then, with regard to the supposed consequence of our decision, viz., the facility with which the order may be evaded, the answer is, that the Lords of the Privy Council have it in their power, under the Act, to make what order they may think expedient. They can so frame their orders as to prevent all doubt on the subject and obviate the possibility of evasion: our duty is only to construe the order according to the plain import of the language used without regard to the consequences. HONYMAN, J. I am of the same opinion. I do not think it is necessary to add anything to what has been said by my Brother Keating with respect to the present case, but I just wish to say that it must not be supposed that I express any opinion on the question whether, if a farmer went away, leaving his business in charge of a bailiff or other servant, he might not be responsible if such servant knowingly omitted to give the required notice. That question is not raised by the case now before us. Conviction quashed. Attorney for appellant: John Rogers, for Stimson. Attorneys for respondent: King & McMillin, for Tindal & Baynes. (1) Law Rep. 7 Q. B. 135. 1873 NICHOLS V. HALL. 1873 April 25. CORNELL v. HAY. THE SAME v. MASSEY. THE SAME v. TORRENS. Company-Prospectus-Companies Act, 1867 (30 & 31 Vict. c. 131), s. 38— The 38th section of the Companies Act, 1867 (30 & 31 Vict. c. 131), which provides for the disclosure in the prospectus of a company of certain particulars with regard to the class of contracts specified in the section, is applicable only for the protection of shareholders in the company, and creates no statutory duty towards bondholders of the company or others for breach of which an action on the statute will lie:-. Quære, as to the nature of the contracts to which the provision is applicable. Semble, per Honyman, J., that the section creates no statutory cause of action, but merely amounts to a declaration that, as between shareholders and those issuing the prospectus, the latter shall be deemed to have acted fraudulently. FIRST count of the declaration in the action against Hay stated that the defendant was a director of the Canadian Oil Works Corporation, Limited, and before the issue of the said prospectus hereinafter mentioned the promoters of the said corporation had entered into a contract or contracts with the defendant and certain other persons that, in consideration of the defendant and the said persons consenting to allow their names to appear in the prospectus of the said corporation and otherwise as directors of the said corporation, the promoters would pay to the defendant and the said persons a large sum each in cash or fully paidup shares of the said corporation: that the said contract or contracts were not specified upon the prospectus of the said corporation, nor in any way mentioned therein; and the defendant knew of the said contract or contracts, and knowingly issued the said prospectus with the fraudulent intent to induce the plaintiff and others to take bonds of the said corporation. And the plaintiff took divers such bonds on the faith of the said prospectus, without having had notice of the said contract or contracts. And by reason of the aforesaid fraud of the defendant, the plaintiff has lost the value of the said bonds and has been otherwise damnified. Pleas to the first count: 3. That the said contracts were not |