British Food Journal Volume 21 Issue 4 1919

Abstract

Food and Drug cases are notorious for their capacity for providing Courts of Justice with knotty points. An interesting specimen of such a point is disclosed in Query No. 8341 in the issue of “The Sanitary Record” of January 23rd. Section 17 of the Sale of Food and Drugs Acts, 1875, provides that if an Inspector applies to purchase an article of food exposed for sale, “and shall tender the price for the quantity which he shall require for the purpose of analysis,” and the person exposing the article for sale refuses to sell to the Inspector, such person is liable to a penalty. According to the full and first‐rate report of the case in question in the “Middleton Guardian” of December 18th last, the following appears to have happened:—The defendant was delivering milk at customers' houses from a horse‐drawn cart. The Inspector went up to him and told him that he was an Inspector under the Act, and that he wanted two pints of milk as samples, one from the can in the cart and the other from the can in the defendant's hand. The defendant said, “I refuse to supply you.” The Inspector then offered him a shilling, and said, “I want two pints of milk.” The defendant again refused to supply the samples, giving no reason for his refusal, and at once drove away. On proceedings being taken for the penalty imposed by the above section, the defendant's solicitor took the point that there had been no “legal tender” under the section, the price of the milk being 9d. and the tender being that of a coin of greater value, thus necessitating the giving of change. The Justices dismissed the summons on this ground. Apparently the only answers which occurred to the Clerk to the prosecuting Local Authority were that the Inspector “might not have known what the milk would cost,” and that the case cited by the defendant's solicitor was decided as long ago as 1815. As the Clerk to the Justices observed, people have only too good a reason for bearing in mind the present price of milk, and it is absurd to suggest that an Inspector of Food dues not know the current price of two pints of this commodity. The mere age of a case is also a feeble retort. We are therefore not surprised at the result of the proceedings. The querist also raises an equally untenable argument in support of his prosecution. He says that it is “the custom of ordinary purchasers to tender larger amounts than cover the value of the article purchased,” and that Inspectors “as far as possible act as ordinary purchasers.” The obvious reply to this is that such a custom cannot override the law, and here the law requires “legal tender.” Now a tender, to be legally valid, must be either “for the specific amount,” or “for more than the precise amount without a demand for change,” or “if the creditor; can select his portion without giving change” (Lord Halsbury's “Laws of England,” Vol. 6, at page 462). One of the authorities cited for this proposition is Wade's Case (5 Co. Rep. 114 a). This decision was given in 1601, and is therefore more than 200 years older than the authority to the antiquity of which the Clerk objected. This authority was no doubt that of Robinson v. Cook (1815, 6 Taunt. 336), where the Court held that tender of a larger amount with a demand for change was bad. It appears to us that the Clerk's answer to this technical defence should, in ordinary times, have been that, though there was a tender of more than the 9d., there was no “demand for change,” for the Inspector did not ask for his 3d. Moreover, the defendant drove away without giving the Inspector any opportunity of saying that he might keep the 3d. It does not appear to be necessary, however, for the purchaser to state expressly that he does not demand any change, and if he has no reasonable opportunity for considering whether such a demand shall be made or not, we are of opinion that the tender of more than the sum due is valid. It certainly is not usual for Inspectors to give money away when making their purchases, but if an Inspector does not happen to have upon him the exact sum required, and he has reason to suspect the quality of milk that is in course of delivery, we regard it as his duty to sacrifice any small sum like 3d. in order that he may perform his duty to consumers. But for D.O.R.A., the querist would, in our opinion, have been perfectly justified, in the circumstances of the case to which he has called our attention, in foregoing his change, and there was nothing to show that this may not have been his intention if the defendant had not been in such a hurry to escape from his clutches. The meaning of our reference to “ordinary times” and to D.O.R.A. is this: At the time in question it was illegal for the milkman to sell, and for the Inspector to purchase, milk at a price higher than the maximum fixed by the Regulations. Courts will not presume that persons intend to commit a breach of the law. In this case, therefore, if our point had been taken in, the Justices would have been justified, as there was no direct evidence of any such intention, in refusing to presume that the Inspector intended to pay more than 9d. for the two samples. Furthermore, if in fact the Inspector had said definitely “I do not want any change,” we think that the tender would still not have been legal, because the milkman would have been entitled to reply “D.O.R.A. won't let me sell you two pints for more than 9d., and therefore change is necessary.” We, like the Justices, regret the result of their ruling, and hope that this article may serve as a hint to officers who may find themselves placed in a similar situation when D.O.R.A. has disappeared.— The Sanitary Record.

Citation

(1919), "British Food Journal Volume 21 Issue 4 1919", British Food Journal, Vol. 21 No. 4, pp. 31-40. https://doi.org/10.1108/eb011089