v. KELSEY. 1907. Inland Revenue Act, 1888 cart might well be put without any sort of ground for alleging that LATCHFORD it was not a cart habitually or regularly used for the conveyance of goods or burden. It might have been said that there would have been no occasion for exemption for a user like that, which, though perhaps not very rare, is not a purpose for which the Assessed taxes cart was likely to have been constructed; but because of that -Carriage very casual use it was thought by the Legislature it might be so -Exemption used, and therefore they thought it necessary to make a specialFarmer's cart-Driving exemption in favour of the cart going to church on Sundays. labourers to Again, in the Corrupt and Illegal Practices Act, 1883, farmers workare permitted to lend their carts for an election, and it is specially Customs and provided that the fact of their being used for that purpose was not to be held to deprive them of the benefit of the exemption. Those two cases show the strictness with which this section was 51 & 52 Vict. intended to be construed. These farm labourers in the cart c. 8, s. 4 (3). were neither "goods "nor "burden"; they were simply persons or passengers being driven in a cart. The matter was considered in Speak v. Powell (29 L. T. Rep. 434; L. Rep. 9 Ex. 25), where the proprietors of a circus, by way of advertising their entertainment, made their horses draw the circus carts round the town with the various performers upon them with their appropriate costumes. It must be admitted that the case was decided in favour of the Crown upon the ground that a circus was not a trade, but the words now in question were considered, and the Court were of opinion that the user of the carts for that purpose was not a user "solely" for the purpose of conveying goods or burden. The question was also considered in Hanworth v. Williams (67 J. P. 315), where the headnote says that, in order to bring a vehicle within the exception to the definition of carriage" in sect. 4 (3) of the Customs and Inland Revenue Act 1888, it must be shown that it was constructed or adapted for use for the conveyance of goods or burden in the course of trade or husbandry, and not merely that it was capable of being so used; and, further, that if the real use of a vehicle is for trade or husbandry, the vehicle could not be said to be kept without a licence merely because on a particular day it was being used for the conveyance of persons. In the present case nothing is said about the construction of the cart, but the user for the conveyance of these workers was part of its regular use. The general tendency, however, of that case is rather against the Crown; but a dictum in that case was dissented from in Moore v. Lewis (93 L. T. Rep. 812; (1906) 1 K. B. 27). There it was held that the word "solely" must be read with both branches of the sectionthat is, construction for use and user-and that the vehicle must be constructed solely for use and must be used solely for the conveyance of goods or burden. That case is distinguishable from this case on the general facts, but at all events it is not an authority in favour of the Crown. The respondent did not appear. Lord ALVERSTONE, C.J.-If the Inland Revenue authorities v. KELSEY. 1907. labourers to LATCHFORD wish to have these farmers' carts taxed, then it must be done in clear language. The Act with which we are dealing is a taxing Act, and I am by no means sure that farm labourers riding inside their cart to and from their work, according to the recognised and almost universal habit of the labourers on a farm Assessed taxes to ride into and out from their work inside their cart, would not -Carriage -Exemption be "burden" within the meaning of this section. I am, however, -Farmer's quite clear that we ought not to send this case back to the cart-Driving justices to convict the respondent on the statement of facts before work- us, from which it appears that on some occasions a number of Customs and the farm hands not particularly mentioned-" occasionally" Inland being the word used-drove to and from their work on the farm. If the Inland Revenue authorities desire to tax carts which are bonâ fide kept for the husbandry and bona fide kept for carrying produce to and from a farm, either crops of manure or anything of that sort, because the farm hands ride therein, then that must be done by clear language. I am clearly of opinion that we cannot on this statement of facts direct a conviction. I think on the facts as stated the justices were quite right in not convicting. Revenue Act, 1888 51 52 Vict. c. 8, s. 4 (3). DARLING, J.-I am of the same opinion. I think that to hold otherwise, seeing that we are upon the question of "burden," would be to inflict a monstrous burden upon those who are attempting to get their living by agriculture. The Inland Revenue authorities have thought it advisable to take out a summons against this farmer, because among other persons going back from the work which they had been doing upon the farm the persons with the cart had permitted themselves to carry a small child, which is specially stated in the case as one of the reasons for bringing this cart within a taxing Act for the benefit of the Revenue. It appears to me that it would have been much better if the officer had not attempted to bring such a case before the justices. A. T. LAWRENCE, J.-I am of opinion that the justices acted quite rightly in this case. I assume that this is a cart of the ordinary description, as nothing else is stated in the case, and I am clearly of opinion, therefore, that the cart is not within this Act, and that it is within the exemption. Appeal dismissed. Solicitor for the appellant, Solicitor of Inland Revenue. KING'S BENCH DIVISION. Tuesday, March 26, 1907. (Before Lord ALVERSTONE, C.J., DARLING and EVANS (app.) v. WEATHERITT (resp.). (a) Sale of Food and Drugs Acts-Milk-Warranty-Sufficiency— Sale of Food and Drugs Act, 1875 (38 & 39 Vict. c. 63), ss. 9, 25-Sale of Food and Drugs Act, 1899 (62 & 63 Vict. c. 51), 8. 20. By a contract dated the 2nd day of October, 1905, E. agreed with the G. W. and M. Dairies to purchase the whole of the milk required for his dairy for twelve months, and the agreement contained a warranty that the milk should be pure with all its cream as received from the cow. In June, 1906, milk was delivered to E. from G. W. and M. Dairies, with the delivery note containing the date, E.'s name, and the name of the G. W. and M. Dairies, but no reference was made to the contract of the 2nd day of October, 1905. Held, that as he E. was to take all his milk from the G. W. and M. Dairies during the period within which this particular consignment was made, and as the warranty in the agreement applied to all the milk sold within that period, there was sufficient evidence in writing to connect the particular consignment with the warranty in the agreement. Watts v. Stevens (95 L. T. Rep. 200; (1906) 2 K. B. 323) considered. CASE ASE stated on a complaint made by the respondent against the appellant for that the appellant did, on the 27th day of June, 1906, unlawfully sell to the respondent an article of food-to wit, milk-from which 28 per cent. of milk fat had been abstracted so as to affect injuriously its quality, substance, or nature without making disclosure of the alteration, contrary to sect. 9 of the Sale of Food and Drugs Act, 1875 (38 & 39 Vict. c. 63). At the hearing of the complaint the following facts were admitted or proved in evidence :— The sale of the milk and the analyst's certificate were admitted by the appellant. Within the period prescribed by the Acts the appellant duly sent to the respondent, who duly received the (a) Reported by W. DE B. HERBERT, Esq., Barrister-at-Law. EVANS v. WEATHERITT. 1907. contract38 & 39 Vict. c. 63, 88. 9 and 25; same, a copy of a contract dated the 2nd day of October, 1905, made between the Great Western and Metropolitan Dairies Limited, of 9, Harrow-road, London, as vendors of the one part and the appellant as purchaser of the other part, which was as follows: Sale of Food and Drugs An agreement made and entered into this 2nd day of October, 1905, between John Acts-Milk Hopkins as representing the Great Western and Metropolitan Dairies Limited, of 9, -Warranty Harrow-road, Paddington, W., and hereinafter called the vendor, of the one part, and - EvidenceJohn Evans, of 52, Darwin-street, Walworth, and hereinafter called the purchaser, Connection of of the other part. The purchaser agrees to purchase of the vendor the whole of the milk required for his dairy carried on at 52, Darwin-street, and amounting to an warranty with standing estimated quantity of about sixteen barn gallons daily for twelve months certain from the 1st day of October, 1905, and until one week's notice be given by either side to terminate this agreement, such notice to terminate on the 30th September.or the 31st March, at prices which may be agreed from time to time and indorsed thereon. The first prices per barn gallon of eight quarts shall be as follows: April, 18. 3d.; May, 18. 34d.; June, 18. 34d.; July, 18. 3d.; August, 1s. 34d.; September, 18. 3d.; October, 18. 74d.; November, 18. 7d.; December 1s. 8d.; January, 1s. 8d.; February, 18. 74d.; March, 1s. 74d. All milk to be delivered by the vendors at the purchaser's address in a sweet, pure, and saleable condition, and warranted by them pure with all its cream as received from the cow, but no responsibility will be taken by the vendors after the delivery. The purchaser hereby agrees to accept the milk for the period and prices named above, and to pay for same by regular fortnightly payments; and in the event of the purchaser not keeping up his payments as agreed or to the satisfaction of the vendors the vendors shall be at liberty to cancel this agreement.-As witness our hands and seals this 2nd day of October, 1905. Signed on behalf of the Great Western and Metropolitan Dairies Limited, JOHN HOPKINS, Managing Director.-Purchaser's signature, JOHN EVANS. 62 & 63 Vict. c. 51, s. 20. The delivery note was as follows: 9, Harrow-road, W., 27th June, 1906.-Mr. Evans,-Please receive from the Great Western and Metropolitan Dairies Limited, wholesale milk contractors-Milk: Morn. 11.4; Aft. 5.4.-D. EDWARDS. The milk, the subject of the proceedings, was delivered by the company's servant at 12.15 p.m. on the 27th day of June, 1906, to the appellant personally under and by virtue of the contract, and it was sold to the respondent in the same state as it was received by the appellant, and the appellant had no reason to believe at the time when he sold it that the milk was otherwise than was required to be delivered to him by the Great Western and Metropolitan Dairies Limited under the contract. At the time the milk was so delivered to the appellant as aforesaid there was delivered to the appellant by the company's servant the delivery note set out above. It was contended on behalf of the respondent that the warranty contained in the contract of the 2nd day of October, 1905, being a general warranty, did not apply to any particular consignment, and that there was nothing in writing to connect the contract and warranty with the particular consignment of the 27th day of June, 1906, as the delivery note above referred to, whilst it related to the particular consignment, did not in any way refer to the contract and warranty, nor was there any kind of warranty on the face of the delivery note itself. The authority relied upon by the respondent in support of the above contentions was the case decided by the Divisional Court of the King's Bench Division, Watts v. Stevens (95 L. T. Rep. 200; (1906) 2 K. B. 323). EVANS 1. WEATHERITT. 1907. Sale of Food and Drugs Acts-Milk -Warranty On behalf of the appellant it was contended that the delivery note referred to was a sufficient document in writing to connect the particular consignment of the 27th day of June, 1906, with the contract and warranty; that the parties' names mentioned in the delivery note were the same as those to the contract, and that as it was proved that the particular consignment was made under and by virtue of the contract it followed that the handing to the appellant of the delivery note was also something done under and by virtue of the same contract and therefore a sufficient something in writing to connect the particular consign- 38 39 Vict. ment with the contract. --EvidenceConnection of warranty with The magistrate was of opinion that the delivery note was not a sufficient connection in writing of the particular consignment 62 with the contract, and that, therefore, on the authority of the above-mentioned case of Watts v. Stevens there was no warranty covering the particular consignment. He accordingly convicted the appellant. By sect. 9 of the Sale of Food and Drugs Act, 1875: No person shall, with the intent that the same may be sold in its altered state without notice, abstract from an article of food any part of it so as to affect injuriously its quality, substance or nature, and no person shall sell any article so altered without making disclosure of the alteration under a penalty in each case not exceeding twenty pounds. And by sect. 25: If the defendant in any prosecution under this Act prove to the satisfaction of the justices or court that he had purchased the article in question as the same in nature, substance, and quality as that demanded of him by the prosecutor, and with a written warranty to that effect, that he had no reason to believe at the time when he sold it that the article was otherwise, and that he sold it in the same state as when he purchased it, he shall be discharged from the prosecution, but shall be liable to pay the costs incurred by the prosecutor, unless he shall have given due notice to him that he will rely on the above defence. By sect. 20 of the Sale of Food and Drugs Act, 1899 : A warranty or invoice shall not be available as a defence to any proceeding under the Sale of Food and Drugs Act unless the defendant has within seven days after the service of the summons sent to the purchaser a copy of such warranty or invoice with a written notice stating that he intends to rely on the warranty or invoice and specifying the name and address of the person from whom he received it, and has also sent a like notice of his intention to such person. Avory, K.C. and Bailhache for the appellant.-The magistrate was wrong here, and misunderstood the decision in Watts v. Stevens (95 L. T. Rep. 200; (1906) 2 K. B. 323). The facts in this case bring it within the decision in Watts v. Stevens, for there it was laid down that there must be writing connecting the particular consignment with the warranty. That is supplied here, for the warranty is in the contract, and the contract is to take for a certain period the whole of the milk for the dairy; the date of the delivery note shows that this particular consignment was delivered while the contract was standing contract c. 63, ss. 9 and 25; c. |