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Law Reports
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LAW REPORTS. HIGH
COURT OF JUSTICE. KING'S BENCH DIVISION. May 1st, 1906.
BEFORE LORD ALVERSTONE, L.C.J., RIDLEY AND DARLING, JJ. WILLIAMSON V. DURHAt~I RUI~AL DISTRICT COUNCIL.
Public Health Act, 1875. Sewer or Government Act, 1894, Section 25.
Drain--Road
Drain--Locai
A drain that has been constructed by a highway authority /or the purpose o[ talcing the surface water of a road does not become a sewer for public health purposes, although it may have become vested in the sanitary authority. This was a case stated by the Justices of the County of Durham on the hearing of an information laid at the instance of the Rural District Council of Durham against the appellant for not complying with a notice to abate a nuisance. It appeared that the Highway Board for the district had previously to 1894 laid a pipe under a certain road for the purpose of conveying the surface water from the road to a pond. The appellant had discharged the sewage of his farm buildings into this pipe, and in consequence the sewage had been carried into the pond, and there caused a nuisance. The defence was that this pipe had become a sewer, and that the appellant had a right to drain into it, and, that being so, it was the duty of tile District Council to abate the nuisance. The pipe had become vested in the District Council by reason of Section 25 of the LocaI Government Act, 1894, which transferred the property and powers of highway authorities to the district councils. By Section 4 of the Public Health Act, 1875, ': sewer" includes sewers and drains of every description except drains as.previously defined and "except drains vested in or under the control o~ any authority having the management of roads and not being a local authority under thisAct." Meynell appeared for the appellant, A. Macpherson for the respondent council. The appeal was dismissed. The Court held that previous to 1894 this pipe was not a sewer, and that the Local Government Act; 1894, did not alter its status and it did not become a sewer by reason of its beeoming vested in an authority having the. management of roads, although that authority was also :a local authority under the Public Health Acts. [For a full report see (1906) L.R. 2 K.B. 65.]
May 4th, 1906. BEFORE LORD ALVERSTONE, L.C.J., ANn DARLING, J. LONDON COUNTY COUNCILv. GREAT EASTERN RAILWAYCO. Smoke nuisance--Locomotive Engine--Duty of Company to use Smokeless Coal--Railway Clauses Consolidation Acts, 1845Z-Regulation of Railways Act, 1868.
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A railway company are notrequired by Section 19 o[ the Regulation o/Railways Act, 1868, to use on their engines the highest standard o] coal #ore the point o/ view o~ smokeIessness. This was a case stated by a Metropolitan magistrate, and raised the point as to whether a railway company were bound to use such ~ quality of coal that their engine would be able to consume so much of the smoke therefrom that the smoke would be reduced to a minimum. The summons was taken out under Section 114 of the Railways Clauses Consolidation Act, 1845, and Section 19 of the Regulation of Railways Act, 1868. Section 114 provides as follows : " E v e r y locomotive steam engine to be used on the railway shall, if it uses coal or other similar fuel emitting smoke, be constructed on the principle of consuming and so as to consume its own smoke." Section 19 of the Regulation of Railways Act, 1868, is as follows : " W h e r e proceedings are taken against a company using a locomotive steam engine on a railway on account of the Same not consuming its own smoke, then if it appears to the justices before whom the complaint is heard that the engine is constructed on the principle of consuming its own smoke, but that it failed to consume its own smoke, as far as practicable, at the time charged in the complaint, through the default of the company, such company shall be deemed guilty of an offence under the Railway Clauses Consolidation Act, 1845, Section 114." It was stated in the case that on July 8th, 1905, the respondents' engine No. 363 during two periods of two minutes each was emitting a dark smoke in larger quantities than usual. The engine was a properly constructed engine, and constructed on the principle of consuming as far as practicable the smoke of the coal then in use upon it, which was a Derbyshire or Yorkshire coal of a bituminous character, and that such coal was a good hard steam coat and the normal locomotive coal in use in some districts. I t was found as a fact that this was not through the default of any servant of the respondents in the stoking or management of the said engine. On the East London line, over which the respondents had running powers, they were under obligation to use, and did use, a ~ Welsh smokeless steam coal different from that used on the above date. This Welsh coal produced smoke not so dark as that of the other coal, and not so much in proportion to the amount of coal used. The magistrate held that the engine was properly constructed and consumed its own smoke so 5ar as was practicable, ha~mg regard to the coal which was used, and that the use o f the particular coal was not a default. He dismissed the summons. BODKIN appeared for the appellants, Avo~v, K.C., and GRAI~ for the responden~ company. LORD ALVERSTONE,L.C.J., in the course o5 his judgment said, that in this case it had been argued that the eSect o5 the amendment o5 the older section by Section 19 of the Act of 1868 had been to impose on railway companies the obligation to Use on their engines the highest standard of coal from the point of view of smokelessness. The learned magistrate had negatived that, and he was not prepared to say that he was wrong on the finding of fact. In 1845 it was contemplated that engines could be constructed so as to consume their own smoke. Section 19 of the Act of 1868 contemplated that some coal would be used which emitted smoke. They had nothing to do with the colour o5 the smoke in these cases, except as evidence of bad stoking or matters of that sort, but were asked to say that it should be somewhat less in quantity, for in any case there must be
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some smoke. Did the section impose a liability to use the best coal procurable, and was it a default not to do so ? The magistrate had found that the engine was properly constructed, and that the coal used was a good hard steam coal, and the normal locomotive coal used in some districts. I t was true that, under contract, the respondents did use Welsh coal on some of their engines, but of course their contractual obligations could not affect their statutory obligations. He thought it would be to put a wrong construction on the sections to hold that the company was in default within the meaning of those sections. The magistrate had made no mistake in law. The appeal must be dismissed. DARLING, J., concurred. M a y 7th, 1906. BEFORE LORD -~LVERSTONE, L.C.J., DARLING AND CHANNELL, JJ. GRIVELL V. MALPAS.
Public Health (London)Act, 1891, Sect. 47 (3). Unsound Meat---Person on whose premises found not liable--Liability to Prosecution of Vendor to such person. I ] an article of/ood is seized and condemned and the person on whose premises it was /ound is not liable to be proceeded against, because he did not intend to sell it, the person who sold it to him may nevertheless be liable under Subsection 3 o~ Section 47 o] the Public Health (London) Act, 1891. This was a case stated by a Metropohtan police magistrate on the hearing of an information laid by the appellant, E. J. GRIVELL,a sanitary inspector for the Metropolitan Borough of Paddington, against John Malpas, of the Cattle Market, Islington, the respondent. The respondent was charged with having, on September 7th, 1905, at the Cattle Market, sold an article intended for the food of man which was unsound, unwholesome, and unfit for the food of man--namely, the pluck of a pig--contrary to the statute in that case made and provided. The following facts were either proved or admitted, viz. : (1) On September 7th, 1905, the appellant, in the discharge of his duty as sanitary inspector of the Borough of Paddington, entered the shop of one Alfred Robinson, a pork butcher, situate in the said borough, where he found a bunch of pigs' plucks, one of which was unsound, unwholesome, and unfit for the food of man, being studded with tubercles. (2) The plucks had been dehvered at the shop by or on behalf of the respondent in execution of a contract for the daily sale by the respondent to Robinson of the plucks of pigs slaughtered by the respondent. (3) I t had for two years been customary for the appellant to call daffy on week days at the shop to examine the articles of food purchased by Robinson for the purposes of his business of pork butcher, and Robinson stated in his evidence that he had not seen the bunch of plucks before the appellant examined them on September 7th, 1905, they ha~_ng been dehvered only half an hour before such examination. Robinson further said that the plucks would not have been sold or offered for sale by him until the appellant had passed them as fit for the food of man. (4) The unsound pluck was seized by the appellant, and an order was obtained by him under Section 47, subsection (2) of the Public Health (London) Act, 1891, for its destruction. (5) No proceedings were taken against Robinson, on whose premises the unsound pluck was found. (6) For the appellant, Robinson and his servant
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were called as witnesses, and the magistrate was satisfied that the unsound pluck when it was seized by the appellant was not exposed for sale and would not have been sold until the inspector passed it; therefore, no offence had been committed under Section 47 of the Public Health (London) Act, 1891, and, without calling on the respondent, he dismissed the summons. R. C. Glen appeared for the appellant, Clarke Hall for the respondent. The Court allowed the appeal. LORD ALVERSTONE, L.C.J., in giving judgment, said that apart from what had been said in other cases, there was no difficulty in dealing with the point. If Subsection (3) had not been discussed beiore he would have thought that it was intended to deal with the case of a vendor of goods sold for the food of man which, in fact, at the time they were sold and purchased, were in the condition of being unfit for human food. I t seemed to him that that was the clear object and purview of the subsection. He would have thought that where one got evidence thgt the article must have been in a condition to be seized, and must have been intended for the food of man, this created a prima/acie case requiring to be answered. I t was said for the respondent that '° Queen v. Dennis" (1894) 2 Q.B. 458, had put upon this section the interpretation that the article must be liable to be seized as against the purchaser from the first vendor, and that it must be liable to be seized because that purchaser was going to deal with it by selling it for the food of man, and he agreed that from the expressions of more than one of the Judges, they seemed to have said that they took the view that in order that the article might be liable to be seized it must have been intended to be sold ; but he desired to point out that there they had not before them the considerations that must be applied to this case. He, therefore, thought that he was at liberty to give effect to the plain meaning of the statute, and he was not bound by any decision of the Court, arid he did not think that the expressions of opinion went so far as was contended on behalf of the respondent. The other learned JCDO~S agreed ; and the case was remitted to the magistrate in order that it might be tried out. May 29th, 1906. BEFORE LORD ALVERSTONE, L.C.J., RIDLEY AND DARLING,JJ. WATTS V. STEVENS.
Sale of Food and Drugs Act, 1875. Milk--Warranty--Connection between Milk sold and the Warranty given. As a de]ence to a summons ]or selling milk not o] the quality demanded, the de]endant set up a warranty given some months previously which was as ]ollows : " I guarantee that the milk supplied by me to Mr. Stevens is per]ectly pure and with all its o'efam as the cow gives it." Held by Alverstone, L.C.J., and Darling, J. (Ridley, J., dissenting) that this was not a good de]ence, as there was not a su~cient connection between the warranty and the particular milk sold. This was a case stated by the Justices of Uxbridge on the hearing of an information under Section 6 oi the Sale of Food and Drugs Act, 1875, charging the respondent Stevens with selling milk not of the nature, substance, and quality demanded, inasmuch as it contained 16 per cent of added water. The milk was sold on December 28th, 1905. I t had been supplied under one contract, but before the delivery of any milk, Mort 44
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had given or sent to the respondent a letter in the following terms : " I guarantee that the milk supplied by me to Mr. Stevens is perfectly pure, and with all its cream as the cow gives it.--FRANCIS MOTT." Both Mott and the respondent intended this to be a continuing warranty. The milk was sold under no warranty other than the above. The Justices held that the letter of August 5th was intended by both parties to cover the delivery of the milk in question, and dismissed the information. Eustave Hills appeared for the appellant, an inspector under the Act; Douglas Hogg for the respondent. The Court allowed the appeal. DARLING, J., who delivered the first judgment, said that a warranty could be applied to goods not in existence at the time it was given. The question was whether one could gather that this particular can of milk when it was bought, was bought under the warranty in question. I t seemed to him that there was not a sufficient connection between the consignment in question and the warranty. He thought there must be established a connection between the particular article complained of and the warranty. No doubt the respondent would have had a remedy by action for breach of warranty, but there did not seem to him to be such a connection as was required by the provisions of Section 25. " Harris v. M a y " (12 Q.B.D. 97), supported this view, and so did the " Farmers ~nd Cleveland Dairy Company v. Stevenson" (55 J.P. 4D7). He thought Mso that the cases of "Laidlaw v. Wilson" (189~, 1 Q.B. 74) and "Irving v. Callow Park Dairy Company" (87 L.T. 70) supported his view. I t was contended that these cases were ~n~ong, and were overruled by " Elliot v. Pilcher" (1901, 2 K.B. 817). If they had to choose between them he could not adopt the judgment in the latter ease. He also thought " Elliot v. Pilcher" inconsistent with the later case of "Irving v. Callow Park Dairy Company" (supra.). There was no good reason why a man should be allowed to rely upon a warranty given perhaps years before, for a consigner would be much more likely to be careless under those ch'cumstances than he would be if each time he sent out a consignment of milk he had to make an affirmation that it was of good quality. This seemed a good reason to him for maintaining the older authorities. He thought that the appeal should be allowed. RIDLE¥, J., was of opinion that the appeal ought to be dismissed, and that the later authorities were in favour of that view. LOI~D ALVEI~STONE,L.C.J., agreed with DA~LI~o, J., that the appeal should be allowed, but he thought the matter was not free from doubt, and that the doubt ought to be set right by legislation. He thought there ought to be a written connection between the consignment and the warranty. The case of Elliot v. Pilcher (supra) went a great deal too far. MILK P~OS~CUTIOX.--AtBow Street Police Court, on May 14th, before Mr. Marsham, the Aerated Bread Company (Limited) were summoned for selling at their dep5t, 45~, Strand, milk from which 10 per cent of fat had been abstracted. Mr. Rotton appeared for the Westminster City Council; Mr. Sparshatt for the defendants; and Mr. Ricketts in the interest of the farmer who supplied the milk. Mr. Rotton said he had received from the defendants notice of a warranty, but samples had been taken from the farmer from whom the company purchased their milk, and they had always been found to be genmne. I t had been noticed that, when samples had been taken from the defendants' dep6ts early in the day the milk was excellent, but when purchased later in the
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day there was a deficiency in the amount of fat, thus showing carelessness on the part of those who handled the milk. The cream always rose to the top, and the waitresses, although no doubt acting quite innocently, had practically skimmed the milk through not keeping it well stirred. Mr. Sparshatt said the defendant company had a very stringent agreement with. the farmer, and a warranty was supplied with each consignment. The manageress of the depht gave evidence that when the milk arrived she tested it with a lactometer, and it then registered zero. The magistrate observed that, as the milk was all right when it arrived, he thought there must have been some carelessness on the part of the defendants' employ~s. This was the first case of its kind, and he would, therefore, only impose a small fine of 20s. and 12s. 6d. costs. RIGHT
OF SANITARY
INSPECTOI~
TO INSPECT
DI~AINAGE
Wol~Ks.--At
Lambeth Police Court, on June 7th, before Mr. Itopkins, William G. Selby, an ex-sanitary inspector, was summoned for obstructing George Fisher, a sanitary inspector in the service of the Southwark Borough Council, in the execution of his duty. Mr. Topham, solieitor to the Council, appeared in support of the summons, and Mr. Burton Ward defended. Inspector Fisher stated that on the 18th ult. he went to some premises in Prince Regent Buildings for the purpose of inspecting some drainage works which were being carried out under a notice served by the Council. Upon walking into the back yard he saw the defendant, who was apparently supervising the work on behalf of the owner of the premises. H e called out to the defendant, '° Good morning," and walked towards the drain trench. ?['he defendant exclaimed, " Y o u go off the premises ; I have written to your superiors, telling them I will not have you here." He t~)ld the defendant he should deetine to go until he had inspected the drain, and the defendant then instructed the workmen to remove him from the premises, and one of them did so. Mr. H o p k i n s . " I don't understand the position ; you serve a householder with notice to put his drains in repair and he proceeds to do it. Can the Sanitary Inspector go to watch ? " Mr. Topham.--" Yes, sir, that is my submission." Mr. Hopkins.--" I mean as a right. I~ you serve me with a notice t6 put my drains in order and I set about it., may your inspector come and watch ? I t may be that I am unwise in not letting him, but may
he come
and watch
as a matter
of right ? "
Mr. Topham.--"I
submit so ; look at the difficulty. If they complete the work and cover it in, how are we to see that it has been properly done without going to the expense of uncovering it ~. " Mr. Hopkins.--" Yes, there is that difficulty about it ; but I don't see what right a Sanitary Inspector has, when a person is carrying out work under a notice from the Council, to go and watch. Surely he is not ' d u l y employed in the execution' in going to the premises of a person who is doing drain work under a notice. Y o u go there again if you have reason to suppose there is another nuisance, and, if you find another nuisance, you proceed again." Mr. Burton Ward, in justice to the defendant, mentioned that Inspector Fisher had been informed that he would receive notice when the work was ready for inspection, but in spite of that he went to the premises on the day in question. Mr. Hopkins dismissed the summons, but without costs. PENALTYI ~ C U ~ E D BY A WATER COMPANY.--The Tredegar (Monmouthshire) Bench of Magistrates imposed a penalty oi £100, with 80 guineas costs, upon a water company which neglected to supply water to ten houses at Aberbargoed.
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LAW REPORTS. HIGH
COURT OF JUSTICE. KING'S BENCH DIVISION. May 1st, 1906.
BEFORE LORD ALVERSTONE, L.C.J., RIDLEY AND DARLING, JJ. WILLIAMSON V. DURHAt~I RUI~AL DISTRICT COUNCIL.
Public Health Act, 1875. Sewer or Government Act, 1894, Section 25.
Drain--Road
Drain--Locai
A drain that has been constructed by a highway authority /or the purpose o[ talcing the surface water of a road does not become a sewer for public health purposes, although it may have become vested in the sanitary authority. This was a case stated by the Justices of the County of Durham on the hearing of an information laid at the instance of the Rural District Council of Durham against the appellant for not complying with a notice to abate a nuisance. It appeared that the Highway Board for the district had previously to 1894 laid a pipe under a certain road for the purpose of conveying the surface water from the road to a pond. The appellant had discharged the sewage of his farm buildings into this pipe, and in consequence the sewage had been carried into the pond, and there caused a nuisance. The defence was that this pipe had become a sewer, and that the appellant had a right to drain into it, and, that being so, it was the duty of tile District Council to abate the nuisance. The pipe had become vested in the District Council by reason of Section 25 of the LocaI Government Act, 1894, which transferred the property and powers of highway authorities to the district councils. By Section 4 of the Public Health Act, 1875, ': sewer" includes sewers and drains of every description except drains as.previously defined and "except drains vested in or under the control o~ any authority having the management of roads and not being a local authority under thisAct." Meynell appeared for the appellant, A. Macpherson for the respondent council. The appeal was dismissed. The Court held that previous to 1894 this pipe was not a sewer, and that the Local Government Act; 1894, did not alter its status and it did not become a sewer by reason of its beeoming vested in an authority having the. management of roads, although that authority was also :a local authority under the Public Health Acts. [For a full report see (1906) L.R. 2 K.B. 65.]
May 4th, 1906. BEFORE LORD ALVERSTONE, L.C.J., ANn DARLING, J. LONDON COUNTY COUNCILv. GREAT EASTERN RAILWAYCO. Smoke nuisance--Locomotive Engine--Duty of Company to use Smokeless Coal--Railway Clauses Consolidation Acts, 1845Z-Regulation of Railways Act, 1868.
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A railway company are notrequired by Section 19 o[ the Regulation o/Railways Act, 1868, to use on their engines the highest standard o] coal #ore the point o/ view o~ smokeIessness. This was a case stated by a Metropolitan magistrate, and raised the point as to whether a railway company were bound to use such ~ quality of coal that their engine would be able to consume so much of the smoke therefrom that the smoke would be reduced to a minimum. The summons was taken out under Section 114 of the Railways Clauses Consolidation Act, 1845, and Section 19 of the Regulation of Railways Act, 1868. Section 114 provides as follows : " E v e r y locomotive steam engine to be used on the railway shall, if it uses coal or other similar fuel emitting smoke, be constructed on the principle of consuming and so as to consume its own smoke." Section 19 of the Regulation of Railways Act, 1868, is as follows : " W h e r e proceedings are taken against a company using a locomotive steam engine on a railway on account of the Same not consuming its own smoke, then if it appears to the justices before whom the complaint is heard that the engine is constructed on the principle of consuming its own smoke, but that it failed to consume its own smoke, as far as practicable, at the time charged in the complaint, through the default of the company, such company shall be deemed guilty of an offence under the Railway Clauses Consolidation Act, 1845, Section 114." It was stated in the case that on July 8th, 1905, the respondents' engine No. 363 during two periods of two minutes each was emitting a dark smoke in larger quantities than usual. The engine was a properly constructed engine, and constructed on the principle of consuming as far as practicable the smoke of the coal then in use upon it, which was a Derbyshire or Yorkshire coal of a bituminous character, and that such coal was a good hard steam coat and the normal locomotive coal in use in some districts. I t was found as a fact that this was not through the default of any servant of the respondents in the stoking or management of the said engine. On the East London line, over which the respondents had running powers, they were under obligation to use, and did use, a ~ Welsh smokeless steam coal different from that used on the above date. This Welsh coal produced smoke not so dark as that of the other coal, and not so much in proportion to the amount of coal used. The magistrate held that the engine was properly constructed and consumed its own smoke so 5ar as was practicable, ha~mg regard to the coal which was used, and that the use o f the particular coal was not a default. He dismissed the summons. BODKIN appeared for the appellants, Avo~v, K.C., and GRAI~ for the responden~ company. LORD ALVERSTONE,L.C.J., in the course o5 his judgment said, that in this case it had been argued that the eSect o5 the amendment o5 the older section by Section 19 of the Act of 1868 had been to impose on railway companies the obligation to Use on their engines the highest standard of coal from the point of view of smokelessness. The learned magistrate had negatived that, and he was not prepared to say that he was wrong on the finding of fact. In 1845 it was contemplated that engines could be constructed so as to consume their own smoke. Section 19 of the Act of 1868 contemplated that some coal would be used which emitted smoke. They had nothing to do with the colour o5 the smoke in these cases, except as evidence of bad stoking or matters of that sort, but were asked to say that it should be somewhat less in quantity, for in any case there must be
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some smoke. Did the section impose a liability to use the best coal procurable, and was it a default not to do so ? The magistrate had found that the engine was properly constructed, and that the coal used was a good hard steam coal, and the normal locomotive coal used in some districts. I t was true that, under contract, the respondents did use Welsh coal on some of their engines, but of course their contractual obligations could not affect their statutory obligations. He thought it would be to put a wrong construction on the sections to hold that the company was in default within the meaning of those sections. The magistrate had made no mistake in law. The appeal must be dismissed. DARLING, J., concurred. M a y 7th, 1906. BEFORE LORD -~LVERSTONE, L.C.J., DARLING AND CHANNELL, JJ. GRIVELL V. MALPAS.
Public Health (London)Act, 1891, Sect. 47 (3). Unsound Meat---Person on whose premises found not liable--Liability to Prosecution of Vendor to such person. I ] an article of/ood is seized and condemned and the person on whose premises it was /ound is not liable to be proceeded against, because he did not intend to sell it, the person who sold it to him may nevertheless be liable under Subsection 3 o~ Section 47 o] the Public Health (London) Act, 1891. This was a case stated by a Metropohtan police magistrate on the hearing of an information laid by the appellant, E. J. GRIVELL,a sanitary inspector for the Metropolitan Borough of Paddington, against John Malpas, of the Cattle Market, Islington, the respondent. The respondent was charged with having, on September 7th, 1905, at the Cattle Market, sold an article intended for the food of man which was unsound, unwholesome, and unfit for the food of man--namely, the pluck of a pig--contrary to the statute in that case made and provided. The following facts were either proved or admitted, viz. : (1) On September 7th, 1905, the appellant, in the discharge of his duty as sanitary inspector of the Borough of Paddington, entered the shop of one Alfred Robinson, a pork butcher, situate in the said borough, where he found a bunch of pigs' plucks, one of which was unsound, unwholesome, and unfit for the food of man, being studded with tubercles. (2) The plucks had been dehvered at the shop by or on behalf of the respondent in execution of a contract for the daily sale by the respondent to Robinson of the plucks of pigs slaughtered by the respondent. (3) I t had for two years been customary for the appellant to call daffy on week days at the shop to examine the articles of food purchased by Robinson for the purposes of his business of pork butcher, and Robinson stated in his evidence that he had not seen the bunch of plucks before the appellant examined them on September 7th, 1905, they ha~_ng been dehvered only half an hour before such examination. Robinson further said that the plucks would not have been sold or offered for sale by him until the appellant had passed them as fit for the food of man. (4) The unsound pluck was seized by the appellant, and an order was obtained by him under Section 47, subsection (2) of the Public Health (London) Act, 1891, for its destruction. (5) No proceedings were taken against Robinson, on whose premises the unsound pluck was found. (6) For the appellant, Robinson and his servant
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were called as witnesses, and the magistrate was satisfied that the unsound pluck when it was seized by the appellant was not exposed for sale and would not have been sold until the inspector passed it; therefore, no offence had been committed under Section 47 of the Public Health (London) Act, 1891, and, without calling on the respondent, he dismissed the summons. R. C. Glen appeared for the appellant, Clarke Hall for the respondent. The Court allowed the appeal. LORD ALVERSTONE, L.C.J., in giving judgment, said that apart from what had been said in other cases, there was no difficulty in dealing with the point. If Subsection (3) had not been discussed beiore he would have thought that it was intended to deal with the case of a vendor of goods sold for the food of man which, in fact, at the time they were sold and purchased, were in the condition of being unfit for human food. I t seemed to him that that was the clear object and purview of the subsection. He would have thought that where one got evidence thgt the article must have been in a condition to be seized, and must have been intended for the food of man, this created a prima/acie case requiring to be answered. I t was said for the respondent that '° Queen v. Dennis" (1894) 2 Q.B. 458, had put upon this section the interpretation that the article must be liable to be seized as against the purchaser from the first vendor, and that it must be liable to be seized because that purchaser was going to deal with it by selling it for the food of man, and he agreed that from the expressions of more than one of the Judges, they seemed to have said that they took the view that in order that the article might be liable to be seized it must have been intended to be sold ; but he desired to point out that there they had not before them the considerations that must be applied to this case. He, therefore, thought that he was at liberty to give effect to the plain meaning of the statute, and he was not bound by any decision of the Court, arid he did not think that the expressions of opinion went so far as was contended on behalf of the respondent. The other learned JCDO~S agreed ; and the case was remitted to the magistrate in order that it might be tried out. May 29th, 1906. BEFORE LORD ALVERSTONE, L.C.J., RIDLEY AND DARLING,JJ. WATTS V. STEVENS.
Sale of Food and Drugs Act, 1875. Milk--Warranty--Connection between Milk sold and the Warranty given. As a de]ence to a summons ]or selling milk not o] the quality demanded, the de]endant set up a warranty given some months previously which was as ]ollows : " I guarantee that the milk supplied by me to Mr. Stevens is per]ectly pure and with all its o'efam as the cow gives it." Held by Alverstone, L.C.J., and Darling, J. (Ridley, J., dissenting) that this was not a good de]ence, as there was not a su~cient connection between the warranty and the particular milk sold. This was a case stated by the Justices of Uxbridge on the hearing of an information under Section 6 oi the Sale of Food and Drugs Act, 1875, charging the respondent Stevens with selling milk not of the nature, substance, and quality demanded, inasmuch as it contained 16 per cent of added water. The milk was sold on December 28th, 1905. I t had been supplied under one contract, but before the delivery of any milk, Mort 44
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had given or sent to the respondent a letter in the following terms : " I guarantee that the milk supplied by me to Mr. Stevens is perfectly pure, and with all its cream as the cow gives it.--FRANCIS MOTT." Both Mott and the respondent intended this to be a continuing warranty. The milk was sold under no warranty other than the above. The Justices held that the letter of August 5th was intended by both parties to cover the delivery of the milk in question, and dismissed the information. Eustave Hills appeared for the appellant, an inspector under the Act; Douglas Hogg for the respondent. The Court allowed the appeal. DARLING, J., who delivered the first judgment, said that a warranty could be applied to goods not in existence at the time it was given. The question was whether one could gather that this particular can of milk when it was bought, was bought under the warranty in question. I t seemed to him that there was not a sufficient connection between the consignment in question and the warranty. He thought there must be established a connection between the particular article complained of and the warranty. No doubt the respondent would have had a remedy by action for breach of warranty, but there did not seem to him to be such a connection as was required by the provisions of Section 25. " Harris v. M a y " (12 Q.B.D. 97), supported this view, and so did the " Farmers ~nd Cleveland Dairy Company v. Stevenson" (55 J.P. 4D7). He thought Mso that the cases of "Laidlaw v. Wilson" (189~, 1 Q.B. 74) and "Irving v. Callow Park Dairy Company" (87 L.T. 70) supported his view. I t was contended that these cases were ~n~ong, and were overruled by " Elliot v. Pilcher" (1901, 2 K.B. 817). If they had to choose between them he could not adopt the judgment in the latter ease. He also thought " Elliot v. Pilcher" inconsistent with the later case of "Irving v. Callow Park Dairy Company" (supra.). There was no good reason why a man should be allowed to rely upon a warranty given perhaps years before, for a consigner would be much more likely to be careless under those ch'cumstances than he would be if each time he sent out a consignment of milk he had to make an affirmation that it was of good quality. This seemed a good reason to him for maintaining the older authorities. He thought that the appeal should be allowed. RIDLE¥, J., was of opinion that the appeal ought to be dismissed, and that the later authorities were in favour of that view. LOI~D ALVEI~STONE,L.C.J., agreed with DA~LI~o, J., that the appeal should be allowed, but he thought the matter was not free from doubt, and that the doubt ought to be set right by legislation. He thought there ought to be a written connection between the consignment and the warranty. The case of Elliot v. Pilcher (supra) went a great deal too far. MILK P~OS~CUTIOX.--AtBow Street Police Court, on May 14th, before Mr. Marsham, the Aerated Bread Company (Limited) were summoned for selling at their dep5t, 45~, Strand, milk from which 10 per cent of fat had been abstracted. Mr. Rotton appeared for the Westminster City Council; Mr. Sparshatt for the defendants; and Mr. Ricketts in the interest of the farmer who supplied the milk. Mr. Rotton said he had received from the defendants notice of a warranty, but samples had been taken from the farmer from whom the company purchased their milk, and they had always been found to be genmne. I t had been noticed that, when samples had been taken from the defendants' dep6ts early in the day the milk was excellent, but when purchased later in the
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day there was a deficiency in the amount of fat, thus showing carelessness on the part of those who handled the milk. The cream always rose to the top, and the waitresses, although no doubt acting quite innocently, had practically skimmed the milk through not keeping it well stirred. Mr. Sparshatt said the defendant company had a very stringent agreement with. the farmer, and a warranty was supplied with each consignment. The manageress of the depht gave evidence that when the milk arrived she tested it with a lactometer, and it then registered zero. The magistrate observed that, as the milk was all right when it arrived, he thought there must have been some carelessness on the part of the defendants' employ~s. This was the first case of its kind, and he would, therefore, only impose a small fine of 20s. and 12s. 6d. costs. RIGHT
OF SANITARY
INSPECTOI~
TO INSPECT
DI~AINAGE
Wol~Ks.--At
Lambeth Police Court, on June 7th, before Mr. Itopkins, William G. Selby, an ex-sanitary inspector, was summoned for obstructing George Fisher, a sanitary inspector in the service of the Southwark Borough Council, in the execution of his duty. Mr. Topham, solieitor to the Council, appeared in support of the summons, and Mr. Burton Ward defended. Inspector Fisher stated that on the 18th ult. he went to some premises in Prince Regent Buildings for the purpose of inspecting some drainage works which were being carried out under a notice served by the Council. Upon walking into the back yard he saw the defendant, who was apparently supervising the work on behalf of the owner of the premises. H e called out to the defendant, '° Good morning," and walked towards the drain trench. ?['he defendant exclaimed, " Y o u go off the premises ; I have written to your superiors, telling them I will not have you here." He t~)ld the defendant he should deetine to go until he had inspected the drain, and the defendant then instructed the workmen to remove him from the premises, and one of them did so. Mr. H o p k i n s . " I don't understand the position ; you serve a householder with notice to put his drains in repair and he proceeds to do it. Can the Sanitary Inspector go to watch ? " Mr. Topham.--" Yes, sir, that is my submission." Mr. Hopkins.--" I mean as a right. I~ you serve me with a notice t6 put my drains in order and I set about it., may your inspector come and watch ? I t may be that I am unwise in not letting him, but may
he come
and watch
as a matter
of right ? "
Mr. Topham.--"I
submit so ; look at the difficulty. If they complete the work and cover it in, how are we to see that it has been properly done without going to the expense of uncovering it ~. " Mr. Hopkins.--" Yes, there is that difficulty about it ; but I don't see what right a Sanitary Inspector has, when a person is carrying out work under a notice from the Council, to go and watch. Surely he is not ' d u l y employed in the execution' in going to the premises of a person who is doing drain work under a notice. Y o u go there again if you have reason to suppose there is another nuisance, and, if you find another nuisance, you proceed again." Mr. Burton Ward, in justice to the defendant, mentioned that Inspector Fisher had been informed that he would receive notice when the work was ready for inspection, but in spite of that he went to the premises on the day in question. Mr. Hopkins dismissed the summons, but without costs. PENALTYI ~ C U ~ E D BY A WATER COMPANY.--The Tredegar (Monmouthshire) Bench of Magistrates imposed a penalty oi £100, with 80 guineas costs, upon a water company which neglected to supply water to ten houses at Aberbargoed.