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IMPORTANT EXCISE PROSECUTION.

   On Tuesday, at the Petersfield County Bench, before the Hon. J. J. Carnegie, (Chairman), Sir A. Macdonald, Bartt., and H. Waddington, Esq., Mr. William Weeks, maltster, carrying on an extensive business at Oxenbourne, near Eastmeon, appeared to answer an information preferred by the Inland Revenue Department, for offences against the Excise Laws. The information was of great length, and contained several counts, of which we give the following abstract:— 

1. For adding on the 22d of January last, 10 bushels of corn to 80 other bushels of corn which had been ??tted in the cistern, and after the excise had taken the amount of the said 80 bushels of grain, contrary to 7 and 8, George IV, c 52 s. 26—penalty £200.
2. For conveying away, on 22d of January last, ?? bushels of corn from the cistern, which had not been accounted for by the excise, contrary to 7 and 8, George V, c. 52, s. 31—penally £200.
3. For adding to 80 bushels of corn, on the floor of his malthouse, 10 bushels of another steeping, on the ??d of January, contrary to 7 and 8, George IV, c. 52, s. ??8—penalty £200.
4. For removing at 5 o’clock on the morning of the ??d. of February last, 14 bushels of corn from the cistern, contrary to 7 and 8, George IV, c. 52, s. 27—Penalty £100.
5. For removing, on the 3rd of February, 14 bushels of corn from the  cistem, so that no gauge could be taken thereof in the couch frame, contrary to 7 & 8 Geo. IV, c. 52, s. 31—penalty £200.
6. For removing 14 bushels of corn on the 3rd of Febraury, and mixing it with another quantity to wit, 88 bushels, contrary to 7 & 8 Geo. III, c. 53, s. 38—penalty £200.
7. For conveying away, on the said 3rd February, from the sight of the officers of excise, 94 bushels of barley, making into malt, contrary to 7 & 8 George III, c. 52, s. 41—penalty, £200. 

     Mr. Dwelly, from the office of the Inland Revenue Department, Somerset House, appeared on behalf of the prosecution, and Mr. H. Ford, of Portsea, for the defence.

     Mr. Dwelley said that before stating the facts of the case it would, perhaps, be convenient that he should tell the bench in a few words what the process of malting was, and also call their attention to the excise regulations bearing on the manufacture of malt. The barley from which the malt was made was first placed in the cistern, where it was steeped in water, and after remaining there a great many hours (the shortest time allowed by law being 40 hours) the water was turned off, and then the grain, which by that time had become saturated with water, was thrown out into another vessel, which was formed by a portion of the malthouse being parted off, and was called the couch frame. It must remain there at least 20 hours, and heat was engendered, which, ultimately assisted, in the process of vegetation. It was then turned out on the floor of the malthouse, and it was called the young floor. It was there laid out somewhat thinner than in the couch frame to facilitate vegetation and it was turned over from time to time for a period of 12 days, during which time the process of vegetation took place. It was afterwards placed in the kiln and dried and when taken off it was perfect malt. The regulations respecting the manufacture of malt were these. As he had informed them, the grain must remain in the cistern 40 hours, and in the couch frame 20 hours. There was no time stated for its remaining on the floor; that was left to the discretion of the maltster, and varied according to the season of the year, vegetation being, of course, much more rapid in warm weather than in cold. According to the regulations of ?? excise, the grain could only be steeped in the cistern between the hours of seven o’clock in the morning and ?? o’clock in the afternoon, and could only be emptied from the cistern between the hours of seven o'clock in the morning and four o’clock in the afternoon. The officers of excise charged the duty upon the malt in each of the stages of manufacture from the time when it was first steeped until the time when it was taken off the kiln. When the corn was gauged in the cistern or couch frame it was considered that a swell took place in consequence of the saturation, equal to 22 seven-tenths per cent., and the Act of Parliament directed that on every 100 bushels of corn steeped 18½ bushels should be allowed for the swell. After that deduction, duty was charged upon the net amount. When the corn was on the floor, and grown considerably more, there was an allowance of one-half. In practice, the officers would tell them that the highest charge arose in the couch frame; and not only so, but the charge which was taken from the couch frame most nearly represented the quantity of malt actually made. The allowance upon the grain when on the floor was very liberal, and when malt was fairly and honestly made it was found that no charge ever arose on that floor. They would therefore see that the object of the maltster was to keep down the charge in the couch frame, because there it was so high, while the allowance was so liberal elsewhere. There would be a saving of 2s. 8d. per bushel on grain escaping the couch frame. Mr. Dwelley then narrated the facts of the case as they will be found in the evidence. With respect to the first count of the information he found upon going over the evidence that he could not ask for a conviction upon it, because the officer had not taken any gauge of the cistern at that time.  The second count was for conveying away 10 bushels of corn from the cistern, which had not been accounted for by the excise, and if they believed the evidence of Mr. Connor, the supervisor of excise, that he found upon the premises young corn in a wet state, similar to that in the cistern, he thought the bench would have no doubt that that corn had been taken from the cistern and put on the young floor, and thus avoided the couch frame, so that no account was taken of it. Mr. Dwelley briefly stated the evidence which he should call in support of the other counts. He said that with the exception of the first he thought they would be all proved to the satisfaction of the bench. It was not his intention to ask for a penalty on every count, because some of them related to the same offence. What defence defendant would set up he had no means of judging, but the statement he made to the officer was that he knew nothing about it, and that it was his man’s doing. The magistrates would have to judge the truth of that statement, but even if it were correct, he was, in law, responsible for the acts of his servant. But he thought it would turn out that defendant must have known, as a practical maltster, what took place in his own malthouse, and that there had been an Introduction of corn into the young floor, which he must have been aware of, in consequence of the increased guages. Although the offence might have been committed by the servant, (Mr. Dwelley) was afraid that it would turn out that defendant was cognizant of what took place. He then called 

     Mr. Rochfort Connor, who deposed: I am a supervisor of excise. In the months of Jan. and Feb. last, I was supervisor of excise in Petersfield district. I am now at Guildford. I know defendant’s premises at Oxenbourne in the county of Southampton. He has two malthouses there. There is one on each side of his dwelling house. No. 2 malthouse is connected with his dwelling house by means of a garden wall. No. 1 is a malthouse divided by a cartway from defendant’s dwelling house. I surveyed the premises of Mr. Weeks in October last. I went to his premises on the morning of the 22nd of January, shortly after nine o’clock. I first went to No. 1 malthouse, and examined the cistern. There was a steeping of corn there. Maltsters give 24 hours’ notice before steeping corn. Steeping took place on the previous day, according to notice. According to that notice the corn in the cistern on the morning of the 22nd had then been in steep 26 hours. I found the grain very slightly covered with water, and water was running into the cistern by means of a supply pipe. On the surface of the water, I noticed several small parcels of barley floating about. It was perfectly hard. I put my hand into the cistern and found the grain very hard and very slightly saturated. In my opinion it could not have been under water more more than two or three hours. Witness referred to the survey book, and said—There had been no gauge taken of the corn since the steeping on the morning of the 21st. If it had been taken it must have been entered in the book. I then examined the young floor and found that a great portion of the grain on that floor was very wet, while other portions were comparatively free from moisture. I pushed back a portion of the grain on the floor, and found it quite wet. That floor could not have been in that state unless water had been thrown over it, or wet grain had been added. I gauged  the grain on that floor, and found 90 2-10ths bushels. Witness referred to the survey book and said a gauge was taken of the same grain while in the couch frame on the 19th of January, when it was found to be 83 8-10ths bushels. When I gauged it on the morning of the 22nd, I found an increase of 6 4-10ths bushels. That was in my opinion an undue excess, considering the state of the corn. The weather was cold; the gram exhibited no sign of vegetation. I surveyed No. 2 malthouse, where there was a steeping in the cistern, for which a notice to wet on the morning of the 21st at seven o’clock had been given. I examined the cistern in that house, and found the grain on the surface was quite hard. I don’t mean that which had been floating, but that which had been steeped. I examine the young floor and found it contained 76 6-10ths. bushels.. On the 19th of January a survey was taken in the couch frame of that steeping and it amounted to 66 2-10ths bushels, being an increase of 10 3-10ths bushels. There was an excess of from 7 to 8 bushels, over what there should have been. In consequence of what I then saw, I went there on the morning of the 3rd of February, and took with me Mr. James Robinson, the officer who surveyed the malthouse. About a quarter to four o’clock in the morning, we placed ourselves in a field opposite No. 1 malthouse, about two hundred yards distant. After remaining for about half-an-hour, I distinctly heard footsteps approaching defendant’s private dwelling-house. Immediately afterwards I heard the voice of a man call out ‟master.” I then heard the noise of a window opening and a noise, as of keys being dropped. I then heard a man approach No. 2 malthouse and unlock the door. It was a quiet night. Soon after this I observed a light in No. 1 malthouse. I then took particular notice and observed the movement of the light. I waited till I saw it fixed in the cistern end of the malthouse, when I proceeded towards the building, and came to a window next to the entrance door, commanding a view of the cistern. I looked through the window, and saw defendant’s operative maltster, John Lintott, removing grain from the cistern by means of a shovel, and deliberately throwing it over, in the direction of the young floor. It was then a little after five clock. I saw him throw about half a dozen shovelsfull. I then entered the malthouse, and seized him by the arm as he was in the act of repeating the offence. I said ‟Hallo, maltster what’s this you are doing, removing grain from the cistern, I thought I would detect you.” He appeared confused and made no remark. I examined the cistern and found quite a vacuum caused by the removal of the grain. No gauge had been taken of this grain. I then went to the young floor, and found that nearly the whole surface was covered with very wet grain. There was also a portion of the wet grain on the floor of the malthouse. I told the man to go for his master, and immediately called the attention of the officer to the state of the cistern and young floor. There was a notice to steep corn on the previous morning at seven o’clock. I gauged the grain on the young floor and found the measure to 102 3-10ths bushels. On the 31st of January a gauge was taken of the same grain, when in the couch frame, and it then amounted to 88 7-10ths bushels. It thus shewed an increase of 13 6-10th bushels. Allowing for the natural increase that took place, I believe there must have been from six to seven bushels thrown out. The duty is almost invariably assessed on the highest charge, which we expect to arise In the couch frame. Defendant returned with Lintott to the malthouse, and I shewed him the state of the cistern and the young floor. I told him what I had seen the man do, and he said—‟I suppose you must do your duty and I must suffer.” I cannot distinctly remember the conversation that took place. I afterwards examined No. 2 house, which I found regular. I seized the grain in No. 1 malthouse. 

     Cross-examined: When I pointed out the state of the cistern and young floor, Mr. Weeks remarked that it was all wrong. He said it was done without his knowledge or sanction. I don?t recollect his saying that he would neither shelter nor screen the man who had done it. I cannot swear that he did not say so. He afforded every assistance that I required. I don’t recollect hearing defendant say any thing to his man. I did not hear him scold his man in my presence. I had the corn removed to the malthouse of Mr. Dear, at Eastmeon, where the manufacture was completed and it was removed to the seizure store, where it now remains. It does happen that there is a larger quantity of malt produced than that steeped. Maltsters expect to get a little increase. I have never known a maltster to get an increase of 10 per cent; I have seen as much as five per cent;it may come to 10 per cent. The maltster not only gets the increase, but escapes payment of the duty on it. The barley increases in bulk after it has left the cistern and when it is in the couch. In every process of manufacture there is an increase; it depends upon a variety of circumstances over which the maltster has no control, such as the quality of the barley and the action of the atmosphere. I have observed a screen in defendant’s malthouse, but I cannot say whether it is a patent one or not. 

     Mr. Ford informed the bench that the screen was used to separate the light and small barley from the heavy before being put into the cistern. 

     Cross-examination continued—We expect to find few isolated grain floating in the cistern on the first day, but not on the second. The fact of finding grain floating on the surface on the second day is an indication to my mind, of the addition of fresh grain. The water being put In first would cause the greatest amount of flotation. I do not know if the defendant puts the water in first. The operative maltster would remove all floating grain. If the grain had been there from the previous day it would have been saturated with water. Some grain absorbs water more freely than other sorts. I have been supervisor nearly 12 months. I have my book here with entries of other malthouses besides defendant’s. The increase in Mr. Dear’s malthonse was from 63 4-10ths bushels to 63 5-10ths bushels, between the 8th and 10th of February. Three days would give a greater increase than two days if the weather was mild and warm. I cannot give a case of three days from my book. The weather was cold at the time I went to defendant’s, and at that time there would have been a very slight increase in a day. I could not estimate the quantity of grain that had been thrown from the cistern on the 22nd day January. I took no pains to acquaint defendant with that. 

     Supposing Mr. Weeks manufactures 6000 bushels of malt in a year would it be fair for him to pay duty on 5700 bushels? It is quite impossible for me to tell; we must survey it. I have often known maltsters grumble at the small increase that takes place. 

     The Chairman—That is a natural privilege of Englishmen (Laughter). 

     By the Chairman—Maltsters are at liberty to remove grain from the cistern after it has been kept there the legal time, without giving us notice. 

     James Robinson, officer of excise of Hambledon ride in the Petersfield ride, corroborated the evidence of Mr. Connor, in reference to his visit to defendant’s on the morning of the 22nd of February. 

     Cross-examined—Mr. Connor called defendant’s attention to what had been done, and defendant said there had been something done wrong. He denied any knowledge of it, and said he would neither screen nor shelter any one who had been guilty of it. He seemed very much agitated, told us to do our duty, and rendered us all the assistance in his power. 

     Mr. Ford asked Mr. Dwelley upon what counts he relied? 

     Mr. Dwelley : Upon all but the first. 

     Mr. Ford contended that it was never contemplated by the legislature that a man should be liable to several penalties for the same offence. He pointed out that in this case, although there were six counts there were only two offences. 

     Mr. Dwelley said a man might, by one act, commit a variety of offences, and be bound to answer all. In this there were six separate offences, and defendant was bound to answer all of them. It was the constant practice in the Court of Exchequer in Excise cases to call upon defendants to answer 30 or 40 counts, and to convict on all. He contended that in this case the evidence proved the whole of the counts, and he should not, therefore, withdraw any of them. 

     Mr. Ford said that it was a most cruel and oppressive proceeding that a single act should be split up into two or three distinct charges. The defendant was charged four distinct ways for what took place on the morning of the 3rd of February, and was liable to four different penalties, amounting to £7OO, because his man was seen shovelling grain improperly.

     The Chairman said this was not a criminal matter; it was a prosecution for penalties; and the question for the bench, who sat as a jury, was whether he had infringed any of the counts. The penalties were distinct for every act. 

     Mr. Ford then made an able address on behalf of the defendant. He should endeavour as briefly as he could to show to the bench, in the first place that the fendant had no criminal knowledge of the breaches of the law that had taken place, and in the next place ask them, supposing they came to the determination that notwithstanding his want of criminal knowledge, still he was liable for the acts of his servant, to give to the case the most favourable consideration. Mr. Weeks had carried on the business of a maltster for a long series of years, and his father and other relations before him had occupied a residence in the locality in which he vas now living for upwards of 70 years, and until that day no one of his name or family had ever appeared in a court of justice charged with any offence. Therefore he might be permitted to say that defendant felt most poignantly and keenly, the position he was placed in, by what he (Mr. Ford) would endeavour to show was the unauthorised act of a foolish and indiscreet servant. Mr. Weeks had carried on his present business for 25 years, and without recapitulating his mode of conducting it, and showing how it had gradually risen to be a lucrative concern, he would say that during that 25 years he had never been once cautioned by the excise officers that he was infringing the law, or warned that any breach of the law was being committed by those in his employ. He stated this to show that Mr. Weeks was not a man who was in the habit of sailing as close to the wind as he could, that he was not in the habit of cheating the government, and just escaping the penalties of the law, but rather that he had pursued ‟the even tenour of his way” for 25 years, without anything being said against him by those who had the administration of the excise laws. With regard to the transactions complained of should like to reverse the order of dates, and refer to what took place on the 2nd of February first. He was quite aware that he should be met presently by the gentleman who conducted the prosecution with the retort that if the act of Lintott was entirely unknown to, and unauthorised by the defendant, he had a simple remedy, he might have had Lintott apprehended, sent prison and tried for having placed him in the position in which he then stood. He admitted that with perfect readiness, but he would call their attention to one provision of an Act of Parliament which applied to the case, as between Mr. Weeks and Lintott, but which would not apply as between Lintott and the Government. It was absolutely necessary for a maltster to prove that some malicious, wilful, or unlawful motive actuated his servant at the time he committed the act, as the clause which provided that the master shall be liable for the acts of his servant unless he was able to convict him within one month after the offence was committed, also provided that the servant must have acted wilfully and maliciously, and with the desire to do his master some injury. He would inform the bench that Mr. Weeks had from time to time since the 3rd of February made applications with reference to his power to prosecute Lintott, in the entire absence of any knowledge of malicious motive on his part, because Mr. Weeks could not conceive and was not able to conceive from the first why Lintott so far forgot his duty, as against all his (defendant,s) warnings and notices, to connote breaches of the law. The man was present that day, and should be submitted to as much cross-examination as his learned friend could give him, and he challenged him to extract from him a syllable that would justify the expression made use of by him in his opening address that defendant knew that the offence was committed. He knew nothing about it. They might call that nothing but the unauthorised assertion of the advocate, if they pleased, but he would state in defendant’s own words that he would neither screen nor shelter the man who brought him into this peril and disgrace. If he could do so, he would tender defendant as a witness.

     Mr. Dwelley: The Act says that he cannot be examined.

     The Chairman: we all know that a maltster is liable for the acts of his servant. It is the maltster’s duty to see the provisions of the Act carried out, and he is primarily liable for the acts of his servant, however respectable he may be.

     Mr. Ford: Quite so, unless under the 46th clause he prosecute his servant to a conviction.

    Mr. Dwelley: It is quite clear under this Act of Parliament the man could not have been convicted in this case.

     The Chairman: The only issue for us to try is whether he did it or not.

     Mr. Ford thought he might assert that defendant’s character stood unblemished, and that he might even go a step farther and say that it was clear that Mr. Weeks knew nothing of what was done by his servant. The reason why there was not a prosecution under the Act was that there was an entire absence of malicious motive for bringing him into this trouble. Another clause in the act provided that any offence committed by a servant against his master should be prosecuted within a month. With regard to what took place on the 22nd of January defendant was entirely ignorant of it, and the first intimation he had of any charge being made against him for a breach of the law on that day was on the 18th of March, when a summons was served upon him in that room. Therefore it was quite impossible for defendant to prosecute Lintott for what took place on the 22nd of January, as more than a month had elapsed. He did not think it would be profitable were he (Mr. Ford) to go through the process of manufacture of malt and show that the account of Conner was grossly exaggerated. It was clear that the whole process was extremely uncertain. Connor stated that there was an undue increase of malt on the floor, but he did not like to admit that the maltster got a ‟pull” out of government. The fact was that there was an increase in every stage of the manufacture, and often, there was from three to ten per cent, made more than was represented by the barley steeped. He would leave the case in the hands of the bench with this observation. He could not deny that the defendant’s man had committed the offence, what he (Mr. F.) said was that what took place was without his client’s knowledge, and therefore, for that reason they should act with great leniency. With regard to the numerous counts, he would say that it would be the height of injustice and contrary to the fair spirit of the British laws if Mr. Weeks was convicted under more than one count for each offence. He should call Lintott, although he should not ask him any questions, in order that the gentlemen on the other side might cross-examine him if he thought fit to do so.

     Lintott was then called but Mr. Dwelley said he did not wish to ask him any questions.

     Mr. Dwelley briefly replied, and said that with respect to the question of penalties the Commissioners of Inland Revenue had no desire to press unduly hard on the defendant. The offences were committed on two separate days, and if the magistrates thought that a penalty for each day would meet the justice of the case, as far as he was concerned, he had no objection to let the other counts drop.

     The Magistrates then retired, and after some deliberation, returned into court, when Mr. Carnegie said—Mr. Weeks is charged in this information, upon six different counts, the first being abandoned, for defrauding the revenue, he being a maltster, and thereby rendering himself liable to several penalties. The solicitor for the board of Inland Revenue very kindly agreed to take our decision  upon two counts only, one for the offence on the 22d of January and the other for the offence on the 3rd of February. We have carefully weighed the whole of the evidence, and applied it to these different counts, and we find him guilty upon the second count, charging him with conveying away on the 22nd of January 10 bushels of corn from the cistern, which had not been accounted for by the excise; that will satisfy the justice of the case for the 22nd of January, and we further find him guilty on the 4th count for removing at an illegal hour on the morning of the 3rd of January, 14 bushels of grain. We shall be pleased to hear Mr. Ford as regards the penalty.

     Mr. Ford said he would state agin that Mr. Weeks distinctly and emphatically denied any guilty knowledge of the offence of which he had been properly convicted. He put it to the magistrates that Mr. Weeks had for years carried on business without a word being said against him, and he was now convicted for the acts of his servant, without having a guilty knowledge of them. He hoped they would take into consideration the respectable way in which he had conducted his business, that he knew nothing of the act of his servant, and that although he was the person who would derive any benefit from it, yet the defendant could state from an examination which he had made, that he had not gained any such benefit. Mr. weeks had no reason to complain of the way in which the officers had done what was no more than their duty, and he was desirous to stand well with them for the future.

     Mr. Dwelley remarked that he felt bound to state that on examining the officer’s books, it was found in many instances there had been an undue increase.

     Mr. Ford said it was scarcely fair to make such a statement, as it could not be proved in evidence. The magistrates then consulted, and 

     Mr. Carnegie delivered judgement. He said they had taken into consideration what Mr. Ford had urged on behalf of his client, and they were of opinion that on the second count they should be justified in reducing the penalty to one-fourth, viz. £50 With regard to the fourth count, it having been shewn to have been a very early hour when the maltster was clearly proved to have thrown the keys out of the window to his man, it was impossible to absolve Mr. Weeks from blame, and therefore on that count they only remitted a moiety of the penalty, and fined him £50, making in all £100. The grain would also be forfeited.

     The proceedings which extended over several hours then terminated.

See also 5-Apr-1862 for brief report