Enniskillen Guardians v Hilliard

• Jurisdiction: Ireland
• Judgment Date: 21 April 1884
• Date: 21 April 1884
• Court: High Court

Ex. Div.

Before DOWSE, B., and ANDREWS, J.

THE GUARDIANS OF THE POOR OF THE ENNISKILLEN UNION,

COMPLAINANTS

and

NOBLE HILLIARD

DEFENDANT

Hall, Resp.ELR 6 Q. B. Div. 17.

Halliwell, Resp.ELR L. R. 9 Q. B. 412.

Chipp, Resp. 3 Ex. Div. 176.

The Guardians of the Poor of the Parish of St. Leonards, Shoreditch, v. Franklin 3 C. P. Div. 377.

The Birmingham Dairy Company, Resp.ELR 9 Q. B. Div. 172.

Glorney, Resp.UNK Ir. R. 10 C. L. 210

The Guardians of St. Leonards, Shoreditch, v. Franklin 3C. P. Div. 377.

Parsons v. The Birmingham Dairy Co.ELR 9 Q. B. Div. 172.

Rouch v. HallELR 6 Q. B. Div. 17.

Phelan v. Rorke 17 Ir. Sol. Jour. 649.

The Pharmaceutical Society v. The Landon and Provincial Supply AssociationELR 5 App. Cas. 869.

Parsons v. The Birmingham Dairy Company ELR 9 Q. B. Div. 172.

Adulteration Private purchaser Penalty Proceedings to recover Notification to seller of intention to have article analysed Condition precedent evidence of identity of sample Corporation purchasing.

214 LA W REPORTS (IRELAND). [L. R. I. Er. Dir. THE GUARDIANS OF THE POOR OF THE ENNISKILLEN 1884. UNION, COMPLAINANTS ; NOBLE HILLIARD, DEFEN April 18-21. DANT (1). Adulteration-Sale of Food and Drugs Act, 1875 (38 4. 39 Vict. c. 63), ss. 6, 12, 14, 20, 21-Sale of Food and Drugs Act Amendment Act, 1879 (42 4 43 Vict. c. 30), s. 3-Private purchaser-Penalty-Proceedings to recover -Notification to seller of intention to have article analysed-Condition preÂÂcedent-Evidence of identity of sample-Corporation purchasing. The provisions of section 14 of the Sale of Food and Drugs Act, 1875, do not apply to the purchase of an article unless for analysis, and therefore it is not a condition precedent to the right of a purchaser for consumption to take proÂÂceedings for a penalty under the Act that he should have given to the seller the notification required by that section. Parsons v. The Birnzinghant Dairy Company (9 Q. B. Div. 172) dissented from. A sample of milk, in course of delivery by the Defendant's servant under a contract for the delivery thereof to a workhoue, was procured for analysis by the Master of the workhouse, and divided by him into three portions, one of which he retained, another he gave to the Defendant's servant, and the third he enclosed in a bottle labelled " Milk," and having on it the name of the conÂÂtractor, and sent it by rail to the public analyst, who analysed it, and gave his certificate as provided by the statute. The Defendant having been fined for the act of adulteration: Held, that a purchase was shown under the Sale of Food and Drugs Act, 1875, there being a buyer on one side and seller on the other ; that the proviÂÂsions of section 14 of that statute did not apply, and no notification was necesÂÂsary as a condition precedent to the bringing of the prosecution ; that there was sufficient evidence that the milk taken was the milk submitted to analysis ; and that a Corporation such as the Board of Guardians was within the statute. CASE Stated for the opinion of the Exchequer Division under 20 & 21 Viet. c. 43. At a Petty Sessions held for the Petty Sessions District of the county of Fermanagh on the 3rd of March, 1884, the Defendant was charged by summons for " that the DeÂÂfendant did, at the workhouse, Cornagrade, Enniskillen, in the (1) Before Down, B., and Axraaws, J. VOL. XIV.] R. 13., C. P., & EX. DIVISIONS. county of Fermanagh, on the 11th of February, 1884, sell, to the prejudice of the guardians of the poor of the Enniskillen Union, a quantity of buttermilk, being food within the meaning of the 6th section of 38 & 39 Viet. c. 63, as amended by the 3rd section of 42 & 43 Vict. c. 30, which said food was not of the nature, subÂÂstance or quality of the article demanded by the said guardians of the poor." The facts as they appeared in the Case Stated were as folÂÂlows : At the hearing of the complaint, it was proved on the part of the Complainant that Alexander Price, the Master of the EnnisÂÂkillen workhouse/ upon the morning of the 11th of February, 1884, took a portion of buttermilk from a certain vessel of butterÂÂmilk which the Defendant's servant was at the time, in pursuance of a contract for the sale thereof, in the act of delivering to Alexander Price, who was acting on behalf of the Complainants. Price thereupon informed the servant of the Defendant that he was taking the buttermilk for purposes of analysis ; and, in the presence of the Defendant's servant, divided the portion of milk into three parts, which he put into and sealed in three separate bottles, and labelled the bottles with the name of the Defendant and the date of the delivery. One of the bottles he delivered to the servant of Defendant ; one he retained himself, and produced before the Justices in Court, so sealed and labelled ; and the third bottle he forwarded in a sealed box by rail to Professor Cameron, analyst for the county. The receipt of the Railway Company for the box containing the sample was produced and proved; and a certificate under the hand of Professor Cameron was also produced. The certificate was as follows :-" Re 38 & 39 Vict. c. 63, and 42 & 43 Vict. c. 30. To Mr. A. PRICE, Enniskillen workhouse. I, the undersigned public analyst for the county of Fermanagh, do hereby certify that I received from you, on the 12th day of February, 1884, a sample of buttermilk, which then measured 2 oz., and have analysed same, and declare the results of my analysis to be as follows :-I am of opinion that said sample was buttermilk to which had been added, as an adulteration, 12 per cent. of its weight of water, exclusive of 20 per cent. T2 LAW REPORTS (IRELAND). [L. R. I. which I allow may have been added for churning purposes, and which is a quantity more than sufficient for the purpose. The said sample, when submitted to me, had undergone no change which could have prevented me from properly examining it. It was labelled Buttermilk-Noble Hilliard.' As witness my hand, this 19th day of February, 1884, at the Royal College of Surgeons, Stephen's-green, Dublin-CHARLES A. CAMERON, Public Analyst for the County of Fermanagh and Borough of EnnisÂÂkillen." Mr. Irvine, solicitor for the Defendant, contended, firstly, that, under 38 & 39 Yid. c. 63, s. 16, inasmuch as the analyst was not resident within two miles of the persons requiring the analysis, it was obligatory upon the agent of the Complainants (Mr. Price) to have forwarded the sample to the analyst by registered letter, and not otherwise : and, secondly, that the sample had not been obtained for analysis until after the delivery of the milk was complete, and had passed out of the control and possession of the Defendant's servant. The Justices were of opinion that the objections raised on behalf of the Defendant were not valid, being satisfied that the mode of forwarding a sample for analysis, provided by 38 & 39 Viet. c. 63, s. 16, was optional ; and being also satisfied, as a matter of fact, that the sample forwarded by Mr. Price had, in due course, reached the analyst, and was the identical sample anaÂÂlysed by him, and referred to in his certificate ; and it being given in evidence that, on a former occasion, the Post-office authorities had refused to forward samples of milk by registered letter. The Justices were further satisfied, after hearing all the evidence adduced, that the sample had been taken by Mr. Price during the course of delivery, and before the delivery was completed and ended ; and, being also satisfied that the Defendant had committed the act of adulteration of the buttermilk complained of in the summons, unanimously gave judgment against the Defendant, and ordered him to pay 2 fine and 1 for costs. The Defendant having required a case to be stated, the opinion of the Exchequer Division was required as to whether the Justices, having been fully satisfied on all questions of fact, were correct in Vo r„ XIV] Q. B., C. P., & EX. DIVISIONS. point of law in their determination, having regard to the proviÂÂsions of the sections of the several statutes (1). A second Case was Stated in reference to milk delivered under similar circumstances, and the facts of the second ease were the same in all respects as the facts above stated. Hart (with him, J. G. Gibson, Q. C.), for the Defendant, cited 38 & 39 Vict. c. 63, ss. 6, 12, 13, 14, 20 and 21; 42 & 43 Vict. (1) By section 6 of 38 & 39 Vict. c. 63 : " No person shall sell to the prejudice of the purchaser any article of food, or any drug, which is not of the nature, substance and quality of the article demanded by such purÂÂchaser, under a penalty not exceeding twenty pounds." 42 & 43 Viet. c. 30, s. 3 : " Any medical officer of health, inspector of nuisances or inspector of weights and measures, or any inspector of a marÂÂket, or any police constable, under the direction and at the cost of the local authority appointing such officer, inÂÂspector or constable, or charged with the execution of this Act, may proÂÂcure at the place of delivery any samÂÂple of any milk in course of delivery to the purchaser or consignee, in purÂÂsuance of any contract for the sale to such purchaser or consignee of such milk ; and such officer, inspector or constable, if he...