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Present : De Sampayo J.
ELLEPOLA v. NADAR.497—P. C. Avisaawella, 29,650.
Butchers Ordinance, No. 9 of 1893—Servant of licensed butcher slaughteringanimal—Servant does' not want license,
A servant employed by a licensed butcher need not hold a licensehimself to slaughtering animals for his master.
Hh'. facts appear from the judgment.
Croos-Dabrera (with .him Balasingham), for the appellant.—Theaccused was only a servant, and merely carried out the master’sorders. The master was authorized by the license to carry on thetrade of a butcher, and there is nothing in the Ordinance whichprevents him delegating his servant to do the same.
In the judgment the accused has been convicted under onesection, whereas in the conviction sheet he is found guilty undertwo sections.
No appearance for the respondent.
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July 23, 1919. De Sampayo J.—1WI
The eonvietion in this case cannot be sustained. The accused BBepala
was charged (1) with having carried on the trade of a butcher withouta license, in breach of section 7 of the Butchers Ordinance, No. 9 of1893; and (2) with having slaughtered two goats suffering fromdisease and exposed for sale the flesh of such goats, in breach ofsection 12 of the Ordinance. The accused, when he first appeared,pleuded not guilty to the charge. 'The case having then beenadjourned to another date, the Police Magistrate on that dayrecorded:“ The accused at this stage admits th& slaughtering of
bs on the direction of his employer, who holds a license. ” There-u the Magistrate, without hearing any evidence, proceeded todiscuss the law applicable to the matter, and convicted the accusedon the first charge. The accused’s statement did not amount toan unqualified admission of guilt. On the contrary, the accusedjustified his act, and no conviction could have followed withoutevidence. I may in this connection direct the attention of thePolice Magistrate to the fact that, although in his judgment hepurported to convict the accused on the first charge only, in theformal “ judgment sheet ” the accused is convicted on both charges.
But, apart from any question of procedure, the conviction forcarrying on the work of a butcher without a license appears to meto be erroneous in point of law. The Magistrate thinks that as a“ butcher, ” as defined in the Ordinance, includes “ every personthat slaughters animals, *’ the accused should under the Ordinance' have a license himself. This, I think, is not a true construction ofthe provisions of the Ordinance. A butcher must have, a licensefor the purpose of carrying on his trade, but there is nothing toprevent his employing servants to do so, and in that case theservants’ acts are his own, and he may be proceeded against for anybreach of the Ordinance. To require every butcher to slaughteranimals himself will be practically to prevent trade altogether. Inmy opinion the Ordinance is not intended to penalize servantsemployed under a licensed butcher, and this is, in. accordance withthe general principles, applicable to the question of criminal liabilityof a servant who acts under the orders of his master. If the act isin itself criminal, the master’s orders will not, of course, exempt himfrom legal responsibility. Where, however, the act is one which isnot Ly its nature criminal, and where it is lawful for the master todo it, the servant’s act is likewise lawful. R. v. James;1 B. v.
Voiler.* A statute which creates the offence may prohibit absolutely,or it may require the servant himself to be qualified to do the act,in which case the servant will be liable, though he'acts innocently.
See Wilson v. Stewart;* R. v. Taylor;* Williamson v. Norris;*
x 8 O. 4s P. 131.* 3 B. S. 913.
* 1 Cox. C.O. 84.* IS East 460.
• 1 Q. B. 7.
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Pharmaceutical Society v. Wheeldon;1 Pharmaceutical Society v.Nash. 2 The Butchers Ordinance, however, does not absolutelyprohibit the slaughtering of animals, nor does it require a butcher’sservant to possess personally the requisite qualification by way ofa license. That being so, the accused was, in my opinion, exemptfrom liability for. slaughtering the goats in obedience to the ordersof his master, who himself could lawfully have done so.
The conviction is set aside.
ELLEPOLA v. NADAR