1912

GLAMORGAN

COUNTY COUNCIL

v.

BARRY

Lord Alverstone
C.J.

Railway on September 2, 1910. At that date no one could tell what would be the result of that objection. It might even lead to an increase in the Barry Railway rateable valuation. Not infrequently the rateable valuation is increased upon an objection OVERSEERS. being taken to it. No one could be certain that it would be reduced. It therefore seems extremely difficult to say that there was a just cause of complaint-there was certainly not one within the five specified causes-when the notice of appeal was given on September 27, 1910. It was not until the early part of the following year that the assessment committee reduced the poor rate assessment. No further step was taken by the Barry overseers. I express no opinion here as to what may be the rights of a person who has appealed against the county basis or valuation if it turns out in fact that the assessments in the contributing area have been altered or substantially reduced on appeal. There are no facts which enable us to determine that question in this case. In my judgment, the Barry overseers were either too early in giving that notice or they were too late. They ought to have ascertained what the amount of the valuation by the assessment committee of the Barry Railway Company's and the other objectors' property was before they gave their notice.

As far as West Riding of Yorkshire County Council v. Middleton Parish Council (1) is an authority applicable to the present case we are following it. With regard to the earlier payment of 1211. 68. the judgment of my brother Ridley shews expressly that there can be no retrospective repayment. As to the second payment the point involved is as to whether the notice of appeal was given at the proper time, and upon this point the decision in West Riding of Yorkshire County Council v. Middleton Parish Council (1) does not help us, because the decision in that case was that the notice of appeal, which was given after the rateable value of the parish for the purpose of the county rate basis or standard was reduced, was too late. The facts in that case were so different from those in the present case that the decision does not help us upon the question whether the notice of appeal given by the Barry Union was given at the proper time.

(1) [1906] 2 K. B. 157.

1912

COUNTY COUNCIL

v.

I come to the conclusion that in the present case the Court of quarter sessions was wrong, and that it had no power to give GLAMORGAN effect to the appeal by ordering the repayment to the Barry overseers of the amounts which they had to repay to the objectors who were held to be over assessed. Therefore this OVERSEERS. appeal must succeed, and our judgment must be for the Lord Alverstone appellants with costs.

PICKFORD J. I agree that the appeal must be allowed. With regard to the question of repayment, it seems to me practically beyond argument, because by the terms of s. 23 of the County Rates Act, 1852, it is expressly provided that the money which is to come from the rates shall be raised notwithstanding a notice of appeal, and that the repayment shall be made of any moneys that have been overpaid since the notice of appeal. The section does not provide in any way for repayment of money which has been paid before the notice of appeal. There was therefore no power to order repayment of any money paid before the notice of appeal was given.

Upon the question as to whether this appeal was rightly brought or not, I think that the Barry overseers are in a dilemma. The grievance which gave them a right of appeal, if it existed at all,-as to which I do not express any opinion in the circumstances of this case-arose at one of two periods, either when the rate was made or when the reduction of the assessment of the Barry Railway Company was made. It could not, in my opinion, arise simply when the notice of objection of the Barry Railway Company to the rate was served. If the grievance arose when the rate was made, the notice of appeal by the Barry overseers was too late. If it arose when the reduction of the Barry Railway Company's assessment was made, then the notice was too early. Therefore, whichever view be taken, it seems to me that this appeal was not rightly brought.

I do not think it is necessary to express an opinion whether a grievance in respect to which they could appeal ever arose or not in the circumstances of this case. If it did arise, it arose, in my opinion, at one or other of those points of time, and whichever of those points of time be taken the appeal to

BARRY

C.J.

1912 quarter sessions was not rightly brought and ought not to have been entertained. Therefore the present appeal ought to be allowed.

GLAMORGAN

COUNTY COUNCIL

v.

BARRY OVERSEERS.

AVORY J. I agree for the same reasons.

Appeal allowed.

Solicitors for appellants: W. H. Martin & Co., for G. David & Evans, Cardiff.

Solicitors for respondents: Burton, Yeates & Hart, for J. A. Hughes, Barry.

END OF VOL. II.

J. E. A.

The Mode of Citation of the Volumes of the Law Reports commencing January 1, 1912,
will be as follows:-

ADULTERATION-continued.

days" after Service of Summons--Time-Sale of
Food and Drugs Act, 1899 (62 & 63 Vict. c. 51),
8. 20, sub-s. 1.

By s. 20, sub-s. 1, of the Sale of Food and
Drugs Act, 1899, "a warranty or invoice shall

ACTION-Cause of action ex delicto-Liability not be available as a defence to any proceeding

of infant

See CONTRACT.

-

419

under the Sale of Food and Drugs Acts unless
the defendant has, within seven days after 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

ADULTERATION-Cream-Sale to Prejudice of
Purchaser Preservative-Notice in Shop
Preservative Injurious to Health-Sale of Food
and Drugs Act, 1875 (38 & 39 Vict. c. 63), s. 6.
The appellant, a dairyman, exhibited a notice
in his shop, which could be read by any pur-person":-
chaser, that "all cream sold at this establishment Held, that in the absence of any words in
contains a small proportion of boron preservative the sub-section indicating that the word "sent"
(not exceeding one half of 1 per cent.) to keep is used with any other than its ordinary meaning
it sweet and wholesome, which has been the of "dispatched" it must be construed as bearing
recognized method of preservation for over that meaning, and that if a copy of the warranty
twenty years." A purchaser asked for and with the written notice is posted to the purchaser
bought at the appellant's shop some cream, within seven days from the issue of the summons
which upon analysis was found to contain an it is "sent" in compliance with the requirement
amount of boron preservative slightly less than of the sub-section although it does not reach him
that stated in the notice. The purchaser had till after the expiration of the seven days.
read the notice before being supplied with the RETAIL DAIRY COMPANY, LIMITED . CLARKE
cream. Upon an information against the appel-
Div. Ct. 388
lant under s. 6 of the Sale of Food and Drugs
Act, 1875, for having sold to the prejudice of the
Sale of Food-Purchase for Analysis
purchaser cream which was not of the nature, —Notification to Seller-Sale by Agent-Notifica
substance, and quality of the article demanded tion given to another Agent of Seller-Sale of
by the purchaser, the justices convicted him, Food and Drugs Act, 1875 (38 & 39 Vict. c. 63),
finding that the cream was injurious to s. 14.

health :-

3.

When an article of food has been purchased
Held, that, as the purchaser had notice that for the purpose of analysis by the public analyst,
the cream was mixed with an ingredient, though the notification of the intention to have the same
he was not told the exact nature or effect of analysed, required by s. 14 of the Sale of Food
that ingredient, and as he chose to buy the and Drugs Act, 1875, to be given "to the seller
cream so mixed, the sale was not to his prejudice or his agent selling the article," may be given to
within the meaning of s. 6, and the conviction an agent who has not sold the article.
was wrong. WILLIAMS T. FRIEND Div. Ct. 471. BURRELL

DAVIES

Div. Ct. 243

2. Milk-Written Warranty-Copy of ADVOWSON-Estate duty-Settlement estate
Warranty with written Notice of Intention to
rely thereon" sent" to Purchaser "within seven |

VOL. II. 1912.

duty-Proceeds of sale

See REVENUE. 1.

2 X

192

2

APPEAL-County rate-County of London-| ARBITRATION—continued.

City of London
sessions appeal lies
See LONDON.

3.

[1912]

To what quarter the arbitration and not on his arbitrator, but
556 (hæsitante Vaughan Williams L.J.) that upon
the facts of the case the sellers' arbitrator had
so acted in the interest of the sellers throughout
as a respondent to the originating summons,
the proceedings that he ought not to be dismissed

County rate-Parish aggrieved-Cause of
appeal-Time for giving notice of appeal
-Overpayment by parish
See RATES. 1.

603

Held, further, by Buckley and Kennedy
L.JJ., that the application to the Court to
appoint an umpire might properly have been
DENNY, MOTT & DICKSON,
made ex parte.
STANDARD EXPORT LUMBER
C. A. 542

LIMITED v.
COMPANY, LIMITED

Award-Workmen's compensation.

See under EMPLOYER AND WORKMAN.
Workmen's

-

compensation Award
Correction-Slip-Jurisdiction

136

ASSIGNMENT-Deed of.

See under DEED OF ASSIGNMENT.

578

Disputes having arisen between the buyers AUCTIONEER-Special Property — Action far
and sellers as to the quality of timber supplied | Price of Goods sold-Debt due from Owner to
under a written agreement of sale, the parties Purchaser-Set-off.
signed a submission to arbitration by which the The plaintiffs, a firm of auctioneers, were
questions in dispute were referred to the deter-employed by F., a farmer and cattle dealer, to
mination of two arbitrators, who were empowered
to name an umpire. The arbitrators were duly
nominated, but failed to agree upon their award;
they also failed to appoint an umpire after a
notice on behalf of the buyers under s. 5 of the
Arbitration Act, 1889, had been served upon
them. The buyers then took out an originating
summons under the same section asking for the
appointment of an umpire by the Court. This
summons was served upon the sellers' arbitrator,
but not upon the sellers themselves, as they
neither resided nor carried on business within

conduct sales of cattle by auction. F. being
pressed by certain creditors induced them to
hold their hands by giving them orders directing
the plaintiffs to pay the debts, amounting to
8647. 118. 8d., out of the proceeds of an intended
sale. The plaintiffs assented to this arrangement.
Pending the sale the plaintiffs lent money to
and did work for F. upon the terms that they
should repay themselves the amount of 627. 118. 6d.
out of the proceeds of the sale. The plaintiffs'
commission and charges in respect of the sale
amounted to 327. 13s.

the jurisdiction of the Court. On the hearing For the purposes of the sale F. bought on
of the summons both before the Master and the credit from the defendant, who was also a cattle
judge the sellers' arbitrator appeared and con-dealer, certain cattle at the price of 164/. 4s.
tended that there was no power to make him a At the sale F. induced the defendant to bid for
respondent to the summons, and, further, that a and buy certain cattle at the price of 1957. on
trade expert and not a legal umpire should be the terms that he should be at liberty to set off
appointed. The Master appointed a legal umpire, the 1647. 4s. against the 1957. The plaintiffs
and his order was affirmed on appeal to a judge in had no notice of this arrangement The sale
chambers:-
:-
realized 9871. 28. 6d., including the price of the
cattle bought by the defendant.

Held by Vaughan Williams, Buckley, and
Kennedy L.JJ., that as a general rule a summons
asking for the appointment of an umpire by the
Court ought to be served on the other party to

In an action by the plaintiffs against the
defendant to recover the sum of 1957, the defen-
dant as to 307. 168. pleaded payment. Against