C. A. 1912 PEIZER t. LEFKOWITZ. Vaughan different conclusion as to the constitution or membership indicated when the word "company" was substituted for the word "office." Lord Atkinson in Kirkwood v. Gadd (1) says: "In view of these facts there is not, there cannot be, a pretence for suggesting that the identity of the appellant was in any way concealed. The respondent knew his registered name, his Williams L.J. registered address, and the nature of the business he purported to carry on there. These are the very things which it was, in my view, the design and purpose of the Money-lenders Act should be brought home to the knowledge of those who borrow from money-lenders. The special mischief against which that statute was directed does not exist in this case." It seems to me that it is true in the present case that there is no pretence for suggesting that the identity of the plaintiff was in any way concealed. I decide, however, this case by itself in respect of the particular variance, and I by no means intend to say that words importing a different constitution of a firm from that indicated by the words in the registered name might not in some cases vitiate the transaction when used in the promissory note or other security taken by the money-lender. I think that this appeal must be dismissed. FARWELL L.J. I agree that this appeal must be dismissed, and I agree with the view expressed by the judges in the Divisional Court that the distinction between the word "office" and the word "company" is in this connection a distinction without a difference. One of the objects of the Money-lenders Act, 1900, was to secure borrowers against the mischief of money-lenders carrying on business under a number of different names, an instance of which mischief occurred in the case of the notorious Isaac Gordon, who on one occasion stated that he carried on the business of a money-lender under a gross of aliases. The result of this practice was that borrowers frequently entered into transactions with a money-lender in ignorance of the fact that they had had previous transactions with the same man carrying on business under another name, and it was in order to put an end (1) [1910] A. C. at p. 430. C. A. 1912 PEIZER v. LEFKOWITZ. Farwell L.J. to this practice that s. 2, sub-s. 1 (b), of the Money-lenders Act, 1900, was enacted. In Kirkwood v. Gadd (1) Lord James of Hereford said: "Guided by the words of the Act, I would surmise that the object of the Legislature was to preserve the identity of the money-lender so that borrowers might always know with whom they were dealing. To secure that the moneylender should trade in only one name, and carry on business at only one address, would do much, and has done much, to establish the desired personal identity of the persons with whom borrowers were dealing"; and in the same case Lord Shaw of Dunfermline said (2): "I must entirely agree with the judgment pronounced by my noble and learned friend Lord James of Hereford. It does appear to me that each case must depend upon its own facts, the elementary principle being kept in mind that the Act is to be enforced in. all respects, and in no respect evaded." I ask myself, therefore, whether the use of the word "company" instead of the word "office" is a distinction which is likely to mislead an intending borrower or to cause him to have any difficulty in ascertaining the identity of the money-lender with whom he was dealing. If there were any real possibility of a person being misled I agree that the provisions of s. 2, sub-s. 1 (b), would not have been complied with and that the transaction would be invalid, but, as I have already said, I think the substitution of the word "company" for the word "office" is a distinction without a difference and one which in my opinion could not possibly mislead any one. KENNEDY L.J. I am of the same opinion and I entirely agree with the judgments which have been delivered and with the reasoning in them. It is important to bear in mind that the question whether the use by a money-lender of a name or description different from that which has been registered is such a non-compliance with the provisions of the Act as was intended by the Act to invalidate the particular transaction is a question of law just as the question of the materiality of an alteration in a bill of exchange or other negotiable instrument is a question of law. In deciding the question of law under the Money-lenders Act, the (1) [1910] A. C. at p. 426. (2) Ibid. at p. 431. Court must of course base its decision on the ascertained facts of the particular case with which the Court is dealing, in the same way as the Court in considering the materiality of an alteration in a bill of exchange will have regard to the results which may flow from the alteration. In the present case I am of opinion that there was no such variance from the registered name of the money-lender as would entitle the borrower to say that the transaction is invalidated. Appeal dismissed. Solicitors for appellants: Osborn & Osborn. F. O. R. C. A. 1912 PEIZER v. LEFKOWITZ, Kennedy L.J. DAVIES, APPELLANT. BURRELL, RESPONDENT. Adulteration-Sale of Food-Purchase for Analysis-Notification to Seller Sale by Agent-Notification given to another Agent of Seller-Sale of Food and Drugs Act, 1875 (38 & 39 Vict. c. 63), s. 14. When an article of food has been purchased for the purpose of analysis by the public analyst, the notification of the intention to have the same analysed, required by s. 14 of the Sale of Food and Drugs Act, 1875, to be given "to the seller or his agent selling the article," may be given to an agent who has not sold the article. CASE stated by a metropolitan police magistrate. The appellant Davies was prosecuted by the respondent, an inspector of nuisances, for having sold by his agent, Mrs. Davies, to Chandler, the agent of the respondent, to the prejudice of the purchaser an article of food (margarine) which was not of the nature, substance, and quality of the article demanded (butter). Chandler, the agent of the respondent, entered the appellant's shop and asked the appellant's wife, who was then the only person in the shop, for two ounces of butter, and was served by her with the article complained of. He then left the shop and handed the article purchased to the respondent, who was on the other side of the road. The two men thereupon went into the shop. The appellant's wife had left the shop, but his son and a 1912 April 24. servant came into the shop. The respondent in their presence divided the article into three parts and handed one part to the appellant's son, and stated to them that the article had been purchased for the purpose of analysis by the public analyst. The respondent did not notify to the appellant or his wife personally that it was his intention to have the article analysed and did not divide the article into three parts in the presence of the appellant or his wife or deliver one part to either of them personally. The appellant contended that the prosecution must fail because the respondent had not complied with the requirements of s. 14 (1) of the Sale of Food and Drugs Act, 1875, in that he had not notified to the appellant or his wife personally the intention to have the article analysed and had not divided the article into three parts in the presence of the appellant or his wife. The magistrate found that the article purchased was margarine. He found that the son or the servant was the agent of the appellant, and held that the requirements of s. 14 of the Act had been complied with by the notification to those agents of the intention to submit the article for analysis and by the delivery of one part of the article to the son, and accordingly convicted the appellant. L. Sanderson, K.C., and David Rhys, for the appellant. Sect. 14 of the Sale of Food and Drugs Act, 1875, requires that the person purchasing any article with the intention of having it analysed must forthwith notify that intention" to the seller or his agent selling the article." The "agent selling" must mean the agent who in fact sells the particular article. The required (1) 38 & 39 Vict. c. 63, s. 14: "The person purchasing any article with the intention of submitting the same to analysis shall, after the purchase shall have been completed, forthwith notify to the seller or his agent selling the article his intention to have the same analysed by the public analyst, and shall offer to divide the article into three parts to be then and there separated, and each part to be marked and sealed or fastened up in such a manner as its nature will permit, and shall, if required to do so, proceed accordingly, and shall deliver one of the parts to the seller or his agent. "He shall afterwards retain one of the said parts for future comparison and submit the third part, if he deems it right to have the article analysed, to the analyst." notification must, therefore, be given either to the seller personally or to his agent who has sold the article complained of. The "agent selling" is specified, and that precludes the words of the section being construed so as to make a notification to any other agent of the seller sufficient. This is a penal statute and must be strictly construed, and every requirement must be strictly complied with before a person can be convicted under it: Barnes v. Chipp (1); Smart v. Watts (2); Hotchin v. Hindmarsh (3); Parsons v. Birmingham Dairy Co. (4) The construction placed upon this section by the magistrate makes the words "or his agent selling" of no effect; they become mere surplusage. S. G. Turner, for the respondent. In Rouch v. Hall (5) Field J. said that the object of the safeguards to the seller enacted in s. 14 is that "if the seller thinks fit he may procure an independent analysis." That object is attained by what was done in this case. There is nothing in the words of s. 14 to shew that a notification to an agent of the seller is insufficient. A notice to an agent is equivalent to notice to the seller himself; it is the duty of an agent to whom the notification is made to inform the seller at once. In Bowstead on Agency, 4th ed., p. 356, the law is thus stated: "Where any fact or circumstance, material to any transaction, business, or matter in respect of which an agent is employed, comes to his knowledge in the course of such employment, and is of such a nature that it is his duty to communicate it to his principal, the principal is deemed to have notice thereof." This notification was made "forthwith" as required by s. 14: Somerset v. Miller. (6) The section contemplates the case of a shopkeeper who carries on his business by a manager and is never present himself. If the contention of the appellant is right, the statute could be evaded in cases of this kind by the seller, or his agent selling, always disappearing as soon as the inspector himself is seen. Sanderson, K.C., in reply. inspector can himself at once (1) (1878) 3 Ex. D. 176. (2) [1895] 1 Q. B. 219. (3) [1891] 2 Q. B. 181. The agent who buys for the (4) (1882) 9 Q. B. D. 172. 1912 DAVIES v. BURRELL. |