There is no provision in the present Act corresponding to this and enabling an order for disclosure to be made, or making refusal or neglect to give information evidence of guilty knowledge or intent. Proof that the person charged has given all the information in his power is made a term of the special defences under sect. 2 (2) (b), and sect. 6 (d), and under sect. 14 the Court, upon a prosecution, in making an order for costs, may have regard to the information given by, and the conduct of, the defendant and prosecutor respectively; but it is quite conceivable that a defendant might refuse to give information with impunity, except as to payment of costs, and secure an acquittal under the general defences of sect. 2 (1) (without intent to defraud), or sect. 2 (2) (c) (acted innocently). In a civil action against him, based upon the same offences, the person charged could, of course, be compelled to make the disclosure on "discovery," if it were relevant to the issues raised. (c) That otherwise he had acted innocently.]-Compare "without intent to defraud," above, p. 507. Whether the defendant tenders evidence or not, and whether any of the special defences sanctioned by the Act is set up or not, the Court must, in order to convict, be satisfied that he acted with a criminal intent in doing the acts complained of (z). 8. Punishment. By sect. 2 (3) and (4)– "(3.) Every person guilty of an offence against this Act shall be liable "(i.) on conviction on indictment, to imprisonment, Fine and imwith or without hard labour, for a term not prisonment. exceeding two years, or to fine, or to both imprisonment and fine; and "(ii.) on summary conviction to imprisonment, with or without hard labour, for a term not exceed (z) Gridley v. Swinborne, 52 J. P. 739, 791; 5 T. L. R. 71 (1888), Coleridge, L.C.J., and Gran- K. L L Forfeiture of the goods. "ing four months, or to a fine not exceeding twenty pounds, and in the case of a second or subsequent conviction to imprisonment, with or without hard labour, for a term not exceeding six months, or to a fine not exceeding fifty pounds; and (iii.) in any case, to forfeit to her Majesty every chattel, article, instrument, or thing by means of or in relation to which the offence has been committed. "(4.) The Court before whom any person is convicted under this section may order any forfeited articles to be destroyed or otherwise disposed of as the Court thinks fit." Forfeiture and destruction (a).]—Sect. 21 of the Act of 1862 authorized the Court in any suit at law or in equity for forging a trade-mark, &c., to order the goods bearing the spurious marks to be destroyed; and the various sections of the Act imposing penalties contained provisions for forfeiture and destruction to the same effect as the sections set out above. It has been shown in the earlier part of the book that the Court of Chancery would have interfered, and now the High Court of Justice interferes, independently of sect. 21 of the Act of 1862, to order the destruction of spuriously marked articles, but that if the marks can be completely removed, the Court permits this to be done without requiring the articles to be destroyed (b). By sect. 2 9. Prosecution. "(6.) Any offence for which a person is under this Act liable to punishment on summary conviction may (a) Cf. sect. 12 (3), p. 521, by which compensation for loss may be awarded to an innocent party out of the proceeds of forfeited goods. And as to forfeiture on importation, see sect. 16, p. 526. "be prosecuted, and any articles liable to be forfeited under this Act by a Court of summary jurisdiction may be forfeited, in manner provided by the Summary Jurisdiction Acts (c): Provided that a person charged with an offence under this section before a Court of summary jurisdiction shall, on appearing before the Court, and before the charge is gone into, be informed of his right to be tried on indictment, and if he requires be so tried accordingly." The Court in Scotland is the Sheriff Court (d), and the Summary Jurisdiction Acts there mean the Summary Procedure Act, 1864, and any Acts amending the same (d). In Dublin, the Summary Jurisdiction Acts are the Acts regulating the powers and duties of justices of the peace for the police district of Dublin metropolis, and, as regards the rest of Ireland, the "Summary Jurisdiction Acts" means the Petty Sessions (Ireland) Act, 1851, and any Act amending the same. The "Court of summary jurisdiction" means justices acting under those Acts (e). Indictment and information.]-For forms of these, see the Appendix, p. 708. Official prosecutions.]-It is provided by sect. 2 of the M. M. A. 1891, that "2.-(1.) The Board of Trade may, with the con- Official prosecutions. currence of the Lord Chancellor, make regulations providing that in cases appearing to the Board to affect the general interests of the country, or of a section of the community, or of a trade, the prosecution of offences under the Merchandise Marks Act, 1887, shall be undertaken by the Board of Trade, and prescribing the conditions on which such prosecutions are to be so undertaken. The expenses of prosecutions so undertaken shall be paid out of moneys provided by Parliament. (c) 42 & 43 Vict. c. 49. (d) Sect. 21. (e) Sect. 22. The compromise of a prosecution is, it seems, not im- "(2.) All regulations made under this section shall be laid before Parliament within three weeks after they are made if Parliament is then sitting, and if Parliament is not then sitting, within three weeks after the beginning of the next session of Parliament, and shall be judicially noticed, and shall have effect as if enacted by this Act, and shall be published under the authority of her Majesty's Stationery Office. of "(3.) Nothing in this Act shall affect the power any person or authority to undertake prosecutions otherwise than under the said regulations." This provision was made upon the recommendation of the Committee of 1890. The regulations made by the Board of Trade under the Act (f) are set out in the Appendix, p. 707. The fifth of such regulations provides that the Board may, before undertaking a prosecution at the instance of any applicant, require the applicant to give security for costs on such terms and in such manner as it thinks proper. Right to be tried by indictment.]—If notice of this right be not given to the person charged on his appearing in Court, and before the charge is gone into, the proceedings are invalid (g). This was so held in a case under sect. 17 of the Summary Jurisdiction Act, 1879, by which a similar duty of informing a defendant, charged with one of the offences included under the section, of his right to be tried by a jury is cast upon the court of summary jurisdiction (). (f) 21 May, 1892. A list of the prosecutions instituted by the Board of Trade is given in Appendix M. to the Report of the Lords' Committee on Marking of Foreign Meat, 1893, from which it appears that down to April, 1893, nine prosecutions had been instituted, and four convictions obtained. (g) Cf. 38 & 39 Vict. c. 63, s. 14, under which it is a condition precedent to the right of the purchaser of adulterated goods to take proceedings, that he should have given the seller notice of his intention to have the goods analysed. Parsons v. Birmingham Dairy Co., 9 Q. B. D. 172 (1882), Div. Court. See also Carle v. Elkington, 40 W. R. 510. (h) Re Holeton, Times Newspaper, 29 June, 1885; Stone's Justices' Manual, 23rd ed. p. 508. There are numerous special Acts comprising corresponding provisions (i). Limitation of prosecutions.]-By sect. 15 "No prosecution for an offence against this Act shall be commenced after the expiration of three years next after the commission of the offence, or one year next after the first discovery thereof by the prosecutor, whichever expiration first happens." Sect. 18 of the Act of 1862 was to the same effect. The ordinary period of limitation upon the summary prosecution of offences is six months (). A question may arise as to whether the above section applies to a prosecution for the special offences created by sect. 8 or sect. 20 of the Act (7), since the phrase "an offence against this Act" which occurs in it, is taken from sect. 2, and does not occur in those sections. It is submitted that sect. 15 does not apply, and that, accordingly, the ordinary rule of six months' limitation holds for prosecutions under sect. 8 or sect. 20. Vexatious Indictments Act.]-By sect. 13 "The Act of the session of the twenty-second and twenty-third years of the reign of her present Majesty, chapter seventeen, intituled 'An Act to prevent vexatious indictments for certain misdemeanours' (m), shall apply to any offence punishable on indictment under this Act, in like manner as if such offence were one of the offences specified in section one of that Act, but this section shall not apply to Scotland." The effect of this is, that no bill of indictment can be presented to, or found by, any grand jury for an offence under the Act, unless either the prosecutor has been bound over to prosecute or give evidence; or the person charged has been committed to or detained in custody, or has been (i) See Glen's Summary Jurisdiction Acts, 6th ed. p. 126. (k) Summary Jurisdiction Act, 1848, sect. 11; Stone's Justices' Manual, p. 31; Glen, pp. 39, 45. (7) Sect. 8 (3) (false declaration as to watch). Sect. 20 (pretended royal warrant). (m) 22 & 23 Vict. c. 17. |