ELLIOT . PILCHER.

be new milk unadulterated and with all its cream." It was found as a fact in the case, and no doubt on sufficient evidence, that the milk actually sold by the respondent to the appellant was milk delivered to him by his vendors under the contract to which the warranty applied. A member of the vendors' firm appears to have attended before the justices and to have stated that the milk in question was the milk he intended should be delivered under the warranty. It would not have been sufficient if this vendor had merely said that it was the milk he had intended to deliver under the contract containing the warranty. I quite agree that the delivery of the milk must be in fact under the warranty and here that fact has been found. Section 25 requires that the defendant in any prosecution under the Act should prove to the satisfaction of the justices that he 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. The present respondent has fulfilled that requirement, for he has proved that he bought under a warranty applying to the particular delivery of milk. Moreover there can be no possible doubt that if the respondent were to bring an action against his vendors on the warranty he would succeed. It is said, nevertheless, that this is not sufficient, and authorities were cited to that effect. The earliest case was Harris v. May (supra), which is very like the present case although there the information was laid under section 6 of the Sale of Food and Drugs Act, 1875, to which section 25 undoubtedly applies, and it was proved that the respondent bought as milk from the appellant, who was selling milk from cans in Bristol, one and a half pint of fluid which upon analysis was found to consist of milk and 10 per cent. of added water. The appellant in that case proved that some three weeks before the day of the sale in question he had a written contract whereby his vendor agreed to sell him a certain number of gallons of new and pure milk every day for six months. I refer to this circumstance because it was a contract containing a warranty as to goods in the future. The appellant relied upon this contract as being a written warranty that the article in question was the same in nature, substance and quality as that demanded of

65 J. P. 743.

him, namely, new and pure milk, and the question was in effect, as it was in the present case, whether the warranty satisfied the requirements of section 25. Lord Coleridge, L.C.J., after saying that in his opinion the contract relied upon by the appellant was not a written warranty within the meaning of the Act, proceeded: "It seems clear that the Legislature meant that a person seeking to protect himself against the penalty and wishing to make himself perfectly safe in respect of the sale of a specific article must show that he had a proper specific warranty in writing in respect of that article from his vendor. The appellant here has not shown that." Now I ask why was not that warranty a proper warranty? It was specific, and it was in writing. I cannot reconcile that judgment of the Lord Chief Justice with the provisions of the statute. Possibly he meant that there must be some writing connecting the article with the warranty and attached to the article. But I cannot see how such an arrangement is to be carried out, or who is to do it. Is the purchaser to attach it when he receives the milk-or the original vendor when he delivers it to the 10 or 20 cans sent off in the morning. The Act requires that there should be a warranty in writing. In that case it was in writing, and in my view the requirements of the section were satisfied, so I can arrive at no satisfactory explanation of the ground of decision in that case. The next case in date is that of Farmers and Cleveland Dairy Company v. Stevenson ([1890] 60 L. J. M. C. 70; 55 J. P. 407). There the warranty in the contract was "the vendor hereby warrants each and every supply of milk delivered or in course of delivery or to be delivered by him under this contract to be pure genuine and new milk unadulterated and with all its cream on." But there in addition a label was attached to each can of milk containing the words "warranted genuine new milk with all its cream on." That circumstance, however, ought not to have made the least difference in the decision, nor apparently did it, for Hawkins, J., said "the only objection present to the mind of the magistrate was the sufficiency of the word warranted' upon the label. . . I am not, however, prepared to adopt this view, for I think there was a warranty on the part of the producers of the milk large enough to fulfil the requirements

ELLIOT v. PILCHER.

of the statute." Stephen, J., added "In the agreement there was a written warranty that the milk to be delivered was pure, genuine, and new milk. . . and the fact that the milk was not to be delivered all at one time does not to my mind make any difference." The next case is Laidlaw v. Wilson (supra), where lard was purchased under a written contract which stated 66 we have to-day sent you three tons of Kilvert's pure lard," and the respondent sold it in the same state as that in which he purchased it. It was held by Charles and Wright, JJ., sitting as a Divisional Court, that the contract contained a sufficient warranty, that the invoice was no part of the contract, and that it was in the contract and in the contract alone that the warranty which the statute required must be sought. But to support this view it became necessary to distinguish the case of Harris v. May (supra), and Charles, J., said with reference to the judgment of Lord Coleridge, L.C.J.: "But on looking at his judgment as a whole I think that what he really meant was that it was not such a warranty as would cover the specific delivery of milk on 12th of April, in the absence of some written evidence that the specific delivery was made under the contract." That is clearly not what the Lord Chief Justice said. He cannot have meant what Charles, J., tried to find that he meant. The two cases are in direct conflict. The latter decision does not lay down that there must be something in writing to cover a specific delivery. Wright, J., said plainly "The word 'pure' in the contract of the 17th of December amounts to an agreement as an essential part of the contract that the lard supplied should be pure, and that is in my opinion a sufficient warranty of its purity within the meaning of the section." In my opinion Harris v. May and Laidlaw v. Wilson (supra) are irreconcilable, and that of the two the latter decision is to be preferred. The only other case is that of Robertson V. Harris (supra), in which an attempt appears to have been made to follow the suggestion of Charles, J., in Laidlaw v. Wilson (supra) in explanation of the judgment of Lord Coleridge, L.C.J., in Harris v. May (supra). The explanation seems to be thisthat to make a warranty good under section 25 there must be some writing to earmark the goods and connect them with the warranty-some document describing them so that any one by reading it may connect

65 J. P. 743.

the warranty with the article sold. I find nothing in the statute casting such an onerous condition on the retail vendor. In my opinion the decision of Charles, J., in Laidlaw v. Wilson (supra) is right, though in direct conflict with that of Lord Coleridge, L.C.J., in Harris v. May (supra), and is the authority we must follow. Therefore our decision is, that if section 25 apply to the present case at all there is here a warranty in writing which brings the respondent within its protection. Accordingly our answers to the specific questions left to us by the justices are as follow:-To the first, that the warranty applied to the milk sold by the vendors to the respondent; to the second, that it is not necessary to show on the face of the warranty that it applied to the particular milk sold, and that it is enough to show the connection by evidence; to the third, that the statute requires no specific warranty with each delivery of milk, but merely that it be sold with a warranty; and that the warranty once given applies to successive deliveries of milk after the date of its being given, and need not be repeated on each delivery. In short, that it applies equally to milk to be delivered under it as to milk already delivered under it.

RIDLEY, J.-I am of the same opinion, and should have nothing to add except for the decision in Robertson v. Harris (supra), to which I was a party. In Laidlaw v. Wilson (supra) there was an invoice, and Charles, J., in dealing with it said that it could be treated as written evidence connecting the warranty found in the contract with the sale of that particular consignment. His words were: "In the present case there is evidence that the particular parcel of lard was delivered under the contract, the delivery having been accompanied by an invoice, which describes the lard in the same terms as those contained in the contract. The invoice, however, is material, not as itself containing the warrant of purity, but as earmarking the particular parcel as having been delivered under a contract in which a written warranty of purity was contained." He interpreted the judgment of Lord Coleridge in Harris v. May (supra) as proceeding upon this, that there must be, in order to satisfy this section of the statute, "some written evidence that the specific delivery was made under the contract," I adopted what he said. At the present moment I think Laidlaw v. Wilson

ELLIOTT v. PILCHER.

(supra) was rightly decided, and that Robertson v. Harris (supra) was not necessarily wrong although that principle was adopted in the judgment which I gave. The headnote in the Law Journal Reports is correct in law, though possibly not so accurate as a summary of the decision as the headnote in the Law Reports, which is in my opinion wrong in law, for it states as the reason of that decision the principle with which I do not agree, namely, that in order to satisfy the statutes there must be some written evidence to connect the warranty contained in the contract with the particular consignment.

Appeal dismissed.

Solicitors for the appellant: Warren, Murton and Miller.

65 J. P. 755.

KING'S BENCH DIVISION.

June 6.

PYM v. WILSHER.

Vaccination-Child born before the 1st of January, 1899-Proceedings to obtain vaccination order-Condition precedent -Vaccination Act, 1867 (30 & 31 Vict. c. 84), s. 31-Vaccination Act, 1898 (61 & 62 Vict. c. 49), ss. 1 (3), 2.

In proceedings under the Vaccination Act,

1867, s. 31, against parents who, after notice, neglect to have their children vaccinated, compliance by the vaccination officer with the provisions of section 1 (3) of the Vaccination Act, 1898, is not a condition precedent to taking proceedings under section 31 of the Act of 1867.

Case stated upon an information laid by the appellant against the respondent under section 31 of 30 & 31 Vict. c. 84.

:

65 J. P. 755. Upon the hearing of the information the following facts were proved or admitted :The respondent was the father of the child which was born on the 18th of August, 1897, and that the respondent had received on the 23rd of October, 1900, a copy of the notice requiring him to have the child vaccinated within 14 days, and also a prior notice to the same effect, and that the child had not been vaccinated. It was also admitted that these notices were the only ones that had been given, and the notice of the public vaccinator of the district to the parent of the child to visit the home of the child as prescribed by section 1 (3) of the Vaccination Act, 1898, had not been given, and also that the public vaccinator had not visited the home of the child and offered to vaccinate the child with glycerinated calf lymph or otherwise as required by that section.

It was contended on behalf of the appellant that the child having been born before the coming into operation of the Vaccination Act, 1898-i.e., the 1st of January, 1899-the respondent did not come within section 1 (3) of that Act in respect of the child.

It was also contended on behalf of the appellant that under section 31 of 30 & 31 Vict. c. 84, unless the respondent proved some reasonable excuse for omitting to have his child vaccinated, an order to vaccinate must be made.

For the respondent it was contended that the Vaccination Acts, 1867 to 1898, must be read together as one Act, and that section 1 (3) of the Act of 1898 applied to all children, whether born before or after the coming into operation of that Act, in all cases where the proceedings are taken alleg. ing default to have arisen after the 1st of January, 1899.

The justices were of opinion that the Vaccination Acts, 1867 to 1898, are to be read as one Act so far as the provisions thereof are not expressly repealed, and also that the notice of the vaccination officer, dated the 23rd of October, 1900, before mentioned, was expressed to be given under the Acts of 1867 to 1898, and that in the Vaccination Act, 1898, are no words which can be construed as not applying to children born before the passing of that Act except in section 2 (2), which contains special provisions as to children born before the passing of the Act. They were also of opinion that

PYM v. WILSHER.

the provisions of section 1 (3) of the Act of 1898 were imperative and not optional, and were therefore a condition precedent to an application for an order under section 31 of the Vaccination Act, 1867, and upon the facts before them they did not see fit to make an order.

They therefore dismissed the summons. The Vaccination Act, 1867 (30 & 31 Vict. c. 84), s. 31, provides :

"If any registrar or any officer appointed by the guardians to enforce the provisions of this Act shall give information in writing to a justice of the peace that he has reason to believe that any child under the age of fourteen years, being within the union or parish for which the informant acts has not been successfully vaccinated, and that he has given notice to the parent or person having the custody of such child to procure its being vaccinated, and that this notice has been disregarded, the justice may summon such parent or person to appear with the child before him at a certain time and place, and upon the appearance, if the justice shall find, after such examination as he shall deem necessary, that the child has not been vaccinated, nor has already had the small-pox, he may, if he see fit, make an order under his hand and seal directing such child to be vaccinated within a certain time, and if at the expiration of such time the child shall not have been so vaccinated, or shall not be shown to be then unfit to be vaccinated or to be insusceptible of vaccination, the person upon whom such order shall have been made shall be proceeded against summarily, and unless he can show some reasonable ground for his omission to carry the order into effect, shall be liable to a penalty not exceeding 20s." The Vaccination Act, 1898 (61 & 62 Vict. c. 49), s. 1 (1), provides:

"The period within which the parent or other person having the custody of a child shall cause the child to be vaccinated shall be six months from the birth of the child, instead of the period of three months mentioned in section 16 of the Vaccination Act of 1867, and so much of that section as requires the child to be taken to a public vaccinator to be vaccinated shall be repealed."

"(2) The public vaccinator of the district shall, if the parent or other person having the custody of the child so requires, visit the home of the child for the purpose of vaccinating the child.

65 J. P. 755.

"(3) If a child is not vaccinated within four months after its birth the public vaccinator of the district, after at least 24 hours' notice to the parent, shall visit the home of the child and shall offer to vaccinate the child with glycerinated calf lymph, or such other lymph as may be issued by the Local Government Board."

"Section 10 (3): The Vaccination Acts, 1867, 1871, 1874, and this Act shall be construed together as one Act."

Etherington Smith for the appellant.-The justices were wrong. There is nothing in the Vaccination Act, 1898, to show that the visit of the public vaccinator, and the offer by him to vaccinate the child under section 1 (3), is a condition precedent to steps being taken under section 31 of the Vaccination Act, 1867. Section 31 applies where the child has either been not successfully vaccinated or not vaccinated at all. By the Act of 1898 the time within which, computing from the birth of the child, it must be vaccinated has been extended from three to six months. In the present case the respondent was in default on the 1st of January, 1899, the date or which the Vaccination Act of 1898 came into force. As a notice had already been served on the parent under the Act of 1867 it was not necessary to serve another notice or visit the home of the child, and offer to vaccinate it under section 1 (3) of the Act of 1898. The provisions of the Act of 1898 do not apply to children born before the coming into operation of that Act.

The respondent did not appear.

RIDLEY, J.-In this case I think it is unfortunate that no counsel has appeared for the respondent, as I should have liked to have heard an argument on the other side. However, on consideration of the case as it stands, I am of opinion that the justices have come to a wrong conclusion and that they ought to have made the order asked for by the appellant. Section 1 (3) of the Vaccination Act, 1898, upon which their decision was founded provides that if a child has not been vaccinated within four months after its birth, the public vaccinator shall, after notice to the parent, visit the home of the child and offer to vaccinate it with glycerinated calf lymph or such other lymph as may be issued by the Local Government Board. That is one of the general provisions of the Act and I think that

PYM v. WILSHER.

section 1 (3) would probably apply to a child born before the passing of the Act so long as it was born at a time which made it still a child to which the Acts apply. The reason, I think, this must be so is that section 2 (2) says that in the application of that section to a child born before the passing of the Act there shall be substituted for the period of four months from the birth of the child the period of four months from the passing of the Act. That is the section which exempts from penalties any persons who satisfy the justices that they conscientiously believe that vaccination would be prejudicial to the health of the child. That section assumes, therefore, that it deals with children born before the passing of the Act, and it seems probable that a similar construction should be put upon section 1 (3). But I find a difficulty in saying how the provision of section 1 (3) makes the visit of the public vaccinator a condition precedent to taking proceedings under section 31 of the Act of 1867. The Act of 1898 is meant to be beneficial to parents, but the Act nowhere says that before any prosecution can be instituted for neglect to have a child vaccinated it must be shown that the public vaccinator has complied with the provisions of section 1 (3). The justices say that they considered the provisions of section 1 (3) imperative and therefore a condition precedent to proceedings under section 31 of 1867. But even conceding that the provisions of section 1 (3) are imperative it is not a logical sequence to say that therefore they are a condition precedent. The justices were wrong and the case must be remitted to them.

BIGHAM, J.-I am of the same opinion.
Appeal allowed.

Solicitors for the appellant: Gibson, Weldon and Bilbrough, for George Pym, Belper.

65 J. P. 756.

KING'S BENCH DIVISION.

April 17; June 13.

STOKES v. HAYDON.

Metropolis-Construction of works - Noncompliance with order of vestry-Notice of order-Metropolis Management Act, 1855 (18 & 19 Vict. c. 120), s. 76. The respondent applied to the vestry for permission to lay a drain according to an annexed plan. He received in answer from the surveyor to the vestry a letter saying "I have considered your application, and have to inform you that, subject to the conditions mentioned below which I have placed upon your notice, the work can be proceeded with, and I shall report to that effect to my vestry." The vestry subsequently passed a resolution approving the report of the surveyor, but no notice of such resolution was sent to the respondent, who proceeded with the work, disregarding the conditions endorsed on his notice returned by the

surveyor.

Held that there was a sufficient order of the vestry within section 76 of the Metropolis Management Act, 1855 (18 & 19 Vict. c. 120), 8. 76, but that it had not been duly notified to the respondent.

Case stated by G. G. Kennedy, Esq., one of the magistrates of the police-courts of the metropolis sitting at the Southwark Police-court. On the 13th and 28th of July, 1900, a complaint was laid by the appellant against the respondent under section 64 of the Metropolis Management Act, 1862 (25 & 26 Vict. c. 102), for that the respondents on the 26th of June, 1900, did neglect to comply with the order of the vestry to construct man-holes and other works to a new drain at 22, Elephant-lane, Rotherhithe, whereby the respondent incurred penalties as provided by statute, was heard and determined by me, and upon such hearing I dismissed the said complaint subject to the following case.

The facts were as follows:

In the month of May, 1900, the drains of the premises, No. 22, Elephant-lane, were found to be so defective as to cause a