Telford v Fyfe
| Jurisdiction | Scotland |
| Judgment Date | 16 July 1908 |
| Docket Number | No. 22. |
| Date | 16 July 1908 |
| Court | High Court of Justiciary |
Lord Justice-Clerk, Lord Low, Lord Ardwall.
Public Health—Food and Drugs—Summary Procedure—Conviction—Competency—Delivery of milk in several cans—Deficiency of quality in each can—Sale of Food and Drugs Act, 1875 (38 and 39 Vict. cap. 63), secs. 6, 13—Sale of Food and Drugs Act Amendment Act, 1879 (42 and 43 Vict. cap. 30), sec. 3.—
Samples having been taken from fourteen out of sixteen cans of milk in course of delivery in one consignment, and all the samples having been found deficient in quality, the consignor was charged with and convicted of fourteen offences under section 6 of the Sale of Food and Drugs Act, 1875. Held that, there having been only one delivery, it was incompetent to charge and convict of more than one offence.
Conviction—Competency—Form—Summary Procedure (Scotland) Act, 1864 (27 and 28 Vict. cap. 53), sec. 18, Schedule K, No. 6, sec. 34.—
A conviction in form No. 6 of Schedule K of the Summary Procedure Act, 1864, granted warrant to arrest all debts and sums of money owing to the accused, and to poind his goods and sell the same, and appointed a return of such poinding and sale to be made ‘within eight days from the expiration of the period hereby allowed for payment.’ No period was allowed for payment, the interlocutor ordaining instant execution.
Opinion that the conviction was not incompetent as being impossible of execution.
Public Health—Food and Drugs—Milk in course of delivery—Fair sample—Sale of Food and Drugs Act Amendment Act, 1879 (42 and 43 Vict. cap. 30), sec. 3.—
A consignment of milk was delivered in sixteen cans which were cylindrical in shape and about two feet deep. Each can was taken into a store-room by the consignor's servant, where it was opened by him. An inspector of nuisances then agitated the milk in the can with a wooden spoon about a foot in length, and a sample was taken by dipping a measure into the milk just under the surface and removing about fourteen ounces. Samples were thus taken from fourteen of the cans. The milk in the cans was on delivery poured into a large vat in the storeroom.
Opinion that the method of sampling was not unfair or improper, and that it afforded a fair test of the contents of each can; and, further, that it would have been incompetent to take a sample after delivery into the vat, the milk being then no longer in course of delivery.
A complaint under the Summary Jurisdiction (Scotland) Acts, 1864 and 1881, brought in the Sheriff Court of Lanarkshire at Glasgow at the instance of the respondent, Peter Fyfe, set forth:—
‘That the complainer has been appointed by the Corporation of the City of Glasgow (Police Department), being the Local Authority for Glasgow under the Sale of Food and Drugs Acts, 1875 to 1899, to enforce the said Acts.
‘That the complainer caused the analysis to be made, of which the certificates are hereto annexed, and from which it appears that the following offences have been committed against the said Acts:—
‘(1) That Maxwell Telford, dairyman, Nos. 87 and 89 Crown Street, Glasgow, in pursuance of a contract of sale whereby the said Maxwell Telford contracted to sell, inter alia, sweet milk, pure, new, as milked from the cow, and without addition of water, preservative, or any foreign substance, the sweet milk to contain not less than 3% (three per cent) of butter fat, to the Parish Council of the parish of Glasgow and the Glasgow Lunacy District Board, which contract of sale was constituted by a tender made by the respondent on or about 23d March 1907 to said Parish Council and Lunacy Board, and duly accepted by them, did, on the 10th day of February 1908, forward as sweet milk, under said contract, 10 gallons of milk, in a 10-gallon tin, to the Stobhill Hospital, Springburn, Glasgow: That William Denovan, ordinary sanitary inspector or police-constable, Glasgow, did, on behalf of the complainer, and under the direction of the said Local Authority, procure on said date at said Stobhill Hospital, Springburn aforesaid, being the place of delivery of said 10 gallons of milk, and in course of the delivery of the same, a sample (No. 37) of the said milk for the purposes of the said Acts: That the said William Denovan, suspecting said milk to have been sold contrary to the provisions of the said Acts, did, on the instructions and behalf of the complainer, submit said sample to be analysed: And that said sample has, on analysis as prescribed by the said Acts, been found not to be of the nature, substance, and quality demanded, in respect that the said contract demanded pure, new, sweet milk, and that said sample was not genuine pure, new, sweet milk, but was deficient in its natural fat to the extent of 7 per cent or thereby.’ [The complaint libelled thirteen other charges in reference to thirteen other tins-in similar terms, and proceeded] ‘contrary to the sale of Food and Drugs Acts, 1875 to 1899, particularly the Sale of Food and Drugs Act, 1875, section 6,* and the Sale of Food and Drugs Act Amendment Act, 1879, section 3,† and the Sale of Milk Regulations, 1901,
section 1, to the same effect as if the said respondent had, place and date above libelled, sold said samples, and as if the same had been purchased by the said William Denovan for the complainer, to his prejudice: Whereby the said Maxwell Telford, for each of said fourteen offences, being first offences, is liable to pay a penalty not exceeding twenty pounds. May it therefore please your Lordship to cite the said Maxwell Telford to appear before you to answer to this complaint, and thereafter to convict him of each of the foresaid offences, and to adjudge him to suffer the penalties provided by the said Acts.’
The accused...
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