摘要:

LAW REPORTS 35 LAW REPORTS. Sale of Milk in London Restaurants. McNair 9. Terroni. (Times, November 27,1914.)-The appellant in this case was an inspector in the employment of the Westminster City Council, and the respondent was the occupier of a restaurant in Westminster. The appellant summoned the respondent under Section 17 of the Sale of Food and Drugs Act, 1876, for refusing to sell a sample of milk exposed for sale on the counter.The magistrate dismissed the summons and refused to state a case, and a mandamus was obtained to compel him to state one. The case now came on for argument. Mr. McCall, K.C., and Mr. Morton Smith appeared for the appellant; the respondent was not represented. Mr. MCCALL said that the appellant called at the respondent’s restaurant and asked for some milk out of a bowl standing on the counter to which was attached a label describing the contents as pure milk.The attendant in charge refused to sell any of the milk, saying that his instructions mere never to sell milk by itself. The only use to which milk was put at the restaurant was to mix it with tea, coffee, and such things; and the magistrates thought that it was not intended for sale under the Act.Mr. JUSTICE RIDLEY said that the case must go back for conviction. Though the article was only sold when mixed with something else, it was nevertheless exposed for sale within the meaning of the Act. Mr. JUSTICE AVORY said that he agreed. People did not generally go into a shop to eat butter by itself, and, on this reasoning, butter sold with bread would be exempt from the Act.Mr. JUSTICE LUSH concurred, Solicitors, Messrs. Allen and Son. Poultry Food Warranties. T. Kyle 2). F. Jewers. (Bucks Herald, Novem- ber 28, 1914.)-In the Appeal Court of the High Courts of Justice on Friday, the appeal T. Kyle w. F. Jewers, of Chesham, came on for hearing. In this case the information laid by Mr. Kyle, on behalf of the prosecutors, the Bucks County Council,36 LAW REPORTS against Mr.Jewers, was that he did on January 26, 1914, at the parish of Great Missenden, sell for use as food for poultry a certain article, which had been artificially prepared, otherwise than by being mixed, broken, ground, or chopped, to wit greaves, and did unlawfully fail to give the purchaser, E. M. Hope, the invoice required by the Fertilisers and Feeding Stuffs Act, 1906.Upon the hearing of the information at Missenden, it was stated for the appellant that the case was taken under Section 6 (1) (a) of the Fertilisers and Feeding Stuffs Act, 1906, and that the respondent was required by Section 1 (2) of the Act, on selling the greaves, to give to the purchaser an invoice stating what were the respective percentages (if any) of oil and albuminoids contained in the article.That the invoice given to Mr. Hope by the respondent on the sale stated (‘ not less than 15 per cent. albuminoids, and 24 per cent. oil.” On being analysed the article was found to contain the following percentages : ‘( Albuminoids 51.75 per cent., oil 20-32 per cent.,” and that the invoice did not contain the respective percentages required by the Act, and was therefore not the invoice required by the Act.The invoice delivered to Mr. Hope was produced. On behalf of respondent it was contended that as the defendant had not failed to give an invoice the proceedings could not succeed under Section 6 (1) (a), and that if the defendant had been guilty of an offence in connection with the invoice, the proceedings should have been taken under Section.6 (1) (b) for causing or permitting the invoice to be false in a material particular to the prejudice of the purchaser.No evidence was taken by the magistrates, and on the point of law raised by respondent’s solicitor, the magistrates gave their decision set forth as follows : ‘‘ We were of opinion, after considering the case quoted (Needham and Go.v. The Wor- cestershire County Council) that the respondent had delivered an invoice purporting to give the particulars, and had therefore complied with the requirements of Section 1 (2) of the said Act, and we thereupon dismissed the information.” The appeal was heard before Mr. Justice Ridley, Mr. Justice Avory, and Mr. Justice Lush.Mr. H. H. Haldinstein, K.C., of High Wycombe, and Sir Ryland Adkins, M.P. (instructed by Messrs. Reynolds and Son, of High Wycombe), appeared for the appellants. Respondent was not represented at the hearing. Mr. HALDINSTEIN, after a, brief opening statement, said the facts detailed above were stated to the magistrates by the County Council advocate, and after the con- clusion of his statement the solicitor for the respondent took the point that the matter was covered by the case of Needham and Go., Ltd.v. The Worcestershire County Council. The magistrates had not the advantage of seeing the case; all they had before them was the headnote in Mew’s Digest,” which was read to them, and this was undoubtedly misleading if the case was not read with it. Mr. JUSTICE LUSH : May we know what the question is ? Mr.EALDINSTEIN : I-will explain the point. The analysis on the invoice stated that the greaves contained not less than 15 per cent. albuminoids and 2g per cent. oil, whereas it was provided by the Act that a statement shall be made of what the actual percentage is, and not the statement ‘‘not less.” Under the Act of 1906, which amended the Act of 1893, Subsection (2) of Section 1 says : “Every person who sells for use as food for cattle or poultry any article which has been artificially prepared shall give to the purchaser an invoice stating the name of the article .. .LAW REPORTS 37 and in the case of any article artificially prepared otherwise than by being mixed, broken, ground, or chopped, what are the respective percentages (if any) of oil and albuminoids contained in the article, and the invoice shall have effect as a warranty by the seller as to the facts so stated, except that as respects percentages the invoice shall have effect as a warranty only that the actual percentages do not differ from those stated in the invoice beyond the prescribed limits of error.” Mr.JUSTICE LUSH : Section 6 makes it an offence ? Mr.HALDINSTEIN : Yes, my Lord. Section 6 (1) says : ‘( If any person who sells any article for use as a fertiliser of the soil or as food for cattle or poultry commits any of the following offences, vie. : (a) Fails without reasonable excuse to give, on or before, or as soon as possible after the delivery of the article, the invoice required by this Act; or (b) causes or permits any invoice or description of the article sold by him to be false in any material particular to the prejudice of the purchaser.” The point taken before the magistrates was that if any proceedings were possible at all they should have been taken under Section 6 (1) (b), and not under Section 6 (a), and they relied on the headnote of this case of Needham v.The Worcestershire County Council for that proposition. Mr. JUSTICE RIDLEY : He failed without reasonable excuse to give the invoice required by the Act ? Mr. HALDINSTEIN : Yes, my Lord. Mr. JUSTICE RIDLEY : He was required by the Act to give the percentages? Mr. HALDINSTEIN : Yes, my Lord. Mr. JUSTICE RIDLEY: Whereas he gave an invoice which did not give the Mr.JUSTICE LUSH : Was there any reasonable excuse ? Mr. HALDINSTEIN : No, ‘none. percentages. The point was taken in the opening that the defendant was required under Section 1 (2) to give to the purchaser an invoice stating what were the respective percentages. Mr. JUSTICE RIDLEY : I t was said it ought to have been alleged that the invoice was false? Mr. HALDINSTEIN : Yes, but it was not false.Mr. JUSTICE AVORY : Will you read the headnote of the case of Needham v. The Worcestershire County Council ? Mr. HALDINSTEIN : The magistrates did not see the case at all. All they saw was the Digest ; therefore I rather excuse the magistrates. ‘‘ A vendor of fertilisers and feeding stuffs who delivers an invoice therewith which purports to comply with Section 1 of the Fertilisers and Feeding Stuffs Act, 1906, but is in fact incorrect, does not commit an offence against Section 6, subsection 1 (a) of the Act.In such a case his offence (if any) is against Section 6, Subsection 1 (b).” I will read your Lordship the case. Never mind the Digest. Mr. JUSTICE LUSH : It did not,compiy with the requirements of the Act. Mr. HALDINSTEIN : That is my point.Mr. JUSTICE LUSH : I t does purport to comply, but it falls short ; it comes Mr. HALDINSTEIK : They were perfectly right to go under (a). Mr. JUSTICE AVORY: What is it that you say misled the Justices ? Mr. HALDINSTEIN : I understand they said it did purport to comply. under (a).38 LAW REPORTS Mr. JUSTICE AVORY : You say they only read the headnote? Mr. HALDINSTEIN : Yes, and they did not look at the case at all.Now the case itself is conclusive, because in this case of Needham v. The Worcestershire County Council what the invoice gave was 1 per cent. absolutely. Mr. JUSTICE RIDLEY : I see at the bottom of page 472 it is said : ( ( The vendor must deliver an invoice, and if he had reason to believe that the article sold contained a percentage of albuminoids and oil, he must state it in the invoice; but if, apart from fraud or dishonesty, which was not alleged, he delivered an invoice stating the percentage, he had not committed any offence under Section 6 (1) (a), though he might have committed an offence under Section (1) (b) by permitting the invoice to be false in a material particular to the prejudice of the purchaser.” This is a case in which he has not delivered a proper invoice.Mr. HALDINSTEIN : That is my point. Mr. JUSTICE AVORY : Where is the invoice? Mr. HALDINSTEIN : There is the original invoice, my Lord. (Invoice handed to his Lordship.) It is a curious thing with regard to fish-meal and greaves that they give the absolute analysis of the fish-meal at 62 per cent.-63 per cent. albuminoids and 3 per cent.to 5 per cent. oil ; but with regard to greaves they say not less than 15 per cent. albuminoids, 2B per cent. oil. Mr. JUSTICE RIDLEY: That is exactly what was intended to be altered. Mr. HALDINSTEIN : Exactly. Instead of containing 15 per cent. albuminoids, it contained 51.75 per cent. albuminoids ; and instead of containing 24 per cent. oil, it contained 20.32 per cent.of oil. My Lords, there is a case of Latham w. Spillers and Bakers, reported in 1913, 2 King’s Bench, page 355, where your Lordships, Mr. Justice Ridley and Mr. Justice Avory, constituted the Court, with Mr. Justice Pickford, as he then was, and in that case, on page 359, Mr. Justice Ridley said this: “ I n this case the Justices declined to convict the respondents on an informa- tion under the Fertilisers and Feeding Stuffs Act, 1906.The question turns on the meaning of certain words in Section 1, Subsection 2, of the Act, which are not easy to construe. That enactment provides that, in the case of any article artificially prepared otherwise than by being mixed, broken, ground, or chopped, the invoice is fo state the percentage of oil and albuminoids contained in the article.” Mr.JUSTICE RIDLEY : I think the point in that case was, was it an artificially prepared article or not? Mr. HALDINSTEIN : The question was, what they ought to have done. Mr. JUSTICE LUSH : It comes to this-the Section decides this point. Mr. HALDINSTEIN : Yes, my Lord. In that case of Latham Mr. Justice Avory said the same thing, and Mr.Justice Pickford said the same thing. Mr. Justice Avory said : 6‘ The object of the Act-was to inform the purchaser as to the nature of the substance which he was buying. That being so, it is impossible to give to the enactment the construction for which the respondents contend, because that would lead to this absurdity, that if the food consists of a simple substance, the nature and properties of which are well known-for example, greaves-then admittedly the invoice must state the percentage of oil and albuminoids.” I do not think I need take up your Lordships’ time further with this case.I do not know whether your Lordships want the case read? It is too clear for argument.LAW REPORTS 39 Mr. JUSTICE RIDLEY: No. Their Lordships then conferred. JUDGMENT.Mr. JUSTICE RIDLEY : I n this case Mr. Haldinstein has explained to the Court how it was the mistake arose under which the decision of the magistrates was arrired at. The proceedings were taken under Subsection (a) and not under Subsection (b) of Section 6 of the Fertilisers and Feeding Stuffs Act, 1906. There seems to me to have been a mistake made. The headnote in the case of Needhem v.The Worcester- shire County Council, which seems to be accurately repeated in ‘‘ Mew’s Digest,” does not seem to me to warrant such a mistake being made at all; indeed, I think it correctly represents the decision arrived at by the Court. I think the mistake must have arisen from not considering the meaning of the words ‘ I purport to comply.’ It says : (( A vendor of fertilisers and feeding stuffs who delivers an iavoice therewith which purports to cornply with Section 1 of the Fertilisers and Feeding Stuffs Act, 1906, but is in fact incorrect, does not commit an offence against Section 6, Sub- section 1 (a) of the Act.” I n such a oase his offence (if any) is against Section 6, Subsection 1 (b).I agree. But then the words are which purports to comply,” in which case the invoice did not purport to comply, because the invoice instead of saying that the percentage of albuminoids was so much, as the Act of Parliament directs it shall state, had the words put in (( not less than.” In the invoice appeared the words (‘ not less than 15 per cent.” That is not in compliance with the Act of Parliament of 1906, nor does it purport to comply with it.Therefore this is not an invoice which purported to comply with the Act, and therefore there was an offence under Sub- section (a) because the respondent failed to put in the invoice the words required by the Act. If the invoice had set out the percentage of albuminoids, as directed by the Act, and it had turned out to be false, then the offence would have been under Subsection (b), and the summons should have been for giving a false invoice.But, .as it was, it seems to me, an invoice which did not purport to comply with the Act, therefore the offence was under Subsection (a), and there should have been a con- viction. Mr. JUSTICE AVORY and Mr. JUSTICE LUSH agreed with the judgment, and in a discussion as regarded costs, Mr. JUSTICE AVORY said tbe rule they acted upon was &hat if a respondent did not appear, no costs were given against him, unless he was the person who put the law in motion.Mr. HALDINSTEIN said that was not an absolute rule with regard to not giving costs, He was appealing for the County Council of Buckinghamshire, and hhey had brought that matter forward in the interests of the public at large.They were bound to come there to have the matter put right. Previous to that any vendors of that class of goods were continually misleading the public, and the Board of Agriculture desired the matter to be taken up. If the decision of the magistrates had stood, the whole of the people in Buckinghamshire who were being supplied with these foodstuffs would have had invoices of this nature put before them, and other magistrates would have followed their example. So it was very important to come there, and it would be very hard that the County Council should have to pay bhe costs of having the matter put right,40 REVIEW Mr. JUSTICE LUSH said nobody disputed that the Court had power to give costs. Mr. HALDINSTEIN : I am arguing against there being a hard and fast rule which your Lordships might be loath to break, but it is not a, rule which your Lordships would be averse to break under certain circumstances, and under the circumstances of this case I suggest that your Lordships’ power to give costs ought to prevail. Mr. JUSTICE RIDLEY : Without laying down any principle, we think there ought to be costs in the present case. Mr. JUSTICE AVORY: It may be a warning to people not to cite headnotes without they refer to the cases. Mr. JUSTICE RIDLEY : I think there is a good deal in what Mr. Haldinstein says -that he wa,s compelled to go on because the invoice took that form. The appeal was therefore allowed, with costs.

ISSN:0003-2654    

DOI:10.1039/AN9154000035

出版商:RSC    

年代:1915

数据来源: RSC

摘要:

40 REVIEW REVIEW. DAIRY CHEMISTBY. By HENRY D. RICHMOND, F.I.C. Second Edition, Revised. AT last the author has found time to prepare a second edition of his standard work, the first edition having been out of print for over seven years. In the fifteen years which have elapsed since the first appearance of the book, Mr. Richmond has been continuously engaged in the Laboratory of the Aylesbury Dairy Co., devising new methods of examination and investigating the multitude of processes which have meantime appeared in literature.As no one in this country is so thoroughly 8 master of the subject as he, we have now before us a reliable collection of all modern data regarding the composition, analysis, and technical examination of milk, butter, and cheese. Although Mr.Richmond modestly describes the second edition as a revised version of the first, it is really much more than this. A little of the older matter has, of course, been deleted as antiquated, but no less than sixty-six pages of new information have taken its place. The illustrations, most of them very good, have been more than doubled; incidentally the portrait of the author himself has been worked in.While it is impossible in a short review to give a list of the material which has been added, we may specially point to the valuable additions relating to the methods of determining H,BO, in milk and to preservatives generally, citric acid, milk- sugar, to the chapter on the examination of sour milk, to the modes of determining the amount of dirt, the microscopy and bacteriology of milk, butter, water-supply to dairies, and to the examination of milk-powders. Composition and analysis of butter are fully and intelligently dealt with. The Public Analyst will find in the book all that he needs to know about milk and other dairy products; in fact, the new edition is indispensable to him, while in the routine work, or dairy and creamery laboratories, the painstaking and clear description and discussion of technical methods of examination and of the many time and labour saving appliances which have been devised, will prove most valuable.There can be nothing but praise for the work, which cannot fail to enhance, if possible, the high reputation which MY. Richmond enjoys. London : Charles Griffin and Go., Ltd. 1914. Price 15s. net. OTTO HEHNER.

ISSN:0003-2654    

DOI:10.1039/AN9154000040

出版商:RSC    

年代:1915

数据来源: RSC