077-NLR-NLR-V-39-SCHOKMAN-v.-NADAR.pdf
SOERTSZ J.—Schokman v. Nadar,
271
3937Present : Soertsz J.
SCHOKMAN v. NADAR.
380—-M C. Colombo, 10,306.
Milk—Sale of milk deficient in fat—Liability of dairyman—Ordinance No. 8of 1901, by-law 4a.
The dairyman as well as the vendor are liable under by-law 4a ofOrdinance No. 8 of 1901, for the sale of milk deficient in fat.
PPEAL from a conviction by the Municipal Magistrate of Colombo.Elliot, K.C. (with him A. F. Goonesekera), for second accused, appellant.
Nagalingam, for complainant, respondent.
Cur. adv. vult.
272
SOERTSZ J.—Seneviratne v. Kanakaratne.
June 4, 1937. Soertsz J.—
The accused appellant was charged under by-law 4a of the by-lawsmade under Ordinance No. 8 of 1901, and published in GovernmentGazette No. 7,654 of July 13, 1928.
It is admitted that the milk was deficient in fat. But Mr. Elliotargued (a) as a matter of fact, that the milk came from cows belongingto the first accused and not to the appellant. The only connectionthe appellant had with these cows was that they were stalled in hisdairy, the owner paying him a certain sum monthly on account ofstall hire, (b) as a matter of law, that assuming the accused-appellantwas the owner of these cows, still it was the actual vendor alone whowas liable under by-law 4a. The dairyman as well as the vendor wereliable only in cases of sales of adulterated milk wider by-law 8 of March3, 1911. In regard to the question of fact, it may well be that the factsare as stated by the appellant, but in view of the appellant’s admissionthat he applied to the Municipal authorities and had the first accusedregistered as a vendor of his dairy, I do not see how he can claimexemption from liability if a dairyman is iiable in law for milk deficientin fat sold by his registered vendor.
At any rate, in the face of that admission I cannot hold that the firstaccused was selling his own milk and not that of the appellant. The firstaccused has certainly not said so. This brings me to the question of law.It is true that in the case of sale of adulterated milk, by-law 8 expresslymakes both- the dairyman and the vendor liable. It would certainlyhave been better if that fact had been made equally clear in by-law 4a.Blit after careful consideration I am of opinion that on a correct inter-pretation of that by-law both the dairyman and the vendor are liable formilk deficient, in fat. Having regard to the scope and intention of thesection I cannot doubt that the master is criminally responsible for salescarried out by his salesman. As pointed out by Lord Russell in Cop-penv. Moore1 “ the master is the seller though not the actual salesman ”.
I dismiss the appeal.Affirmed.