after delivery into the vat at the storeroom in Stobhill Hospital? (4) July 16, 1908. Was the form of conviction competent?" Telford v. Argued for appellant;-(1) The method adopted for sampling the Fyfe. milk was unfair. There was only one consignment, and any sample taken ought to have been a sample of the whole consignment. No sample was taken from two of the cans. There might be a deficiency of butter fat in some cans in a consignment, and no deficiency in the whole consignment.1 In order to get a fair sample of the consignment, it was necessary to sample the whole and to sample it as a whole. To stir with a stick and take some milk out of some cans without mixing the milk in the cans and without mixing the samples was unfair. There ought to have been one sample, and it ought to have been taken from the whole milk after it was mixed in the vat. A fair sample was not even taken from each can, because only the milk at the top of each can was agitated. (2) It was incompetent to charge fourteen offences in respect of one delivery of milk. The statute only required that the delivery should be in accordance with contract, but there could be only one offence in respect of one delivery. The case of Fecitt v. Walsh, which the Sheriff-substitute had followed, was wrong, and was not binding on him. It was based on an inaccurate analogy between the procurement of a sample by an inspector of nuisances and a purchase under section 13 of the 1875 Act. The decision ignored the terms of the contract under which delivery was made. It was not a contract for delivery of so many cans, but of a certain quantity of milk. (3) The conviction was bad, because it was not in proper form. It appointed something to be done within eight days from the expiration of a period allowed, and no period had been allowed. This was not mere surplusage, and it was not such a defect in form as might, under section 34 of the Summary Procedure Act, be disregarded. It was intrinsically bad, because it could not be worked out. Argued for respondent ;-(1) The method of sampling adopted was fair and reasonable. A fair sample was taken from fourteen cans, and each was found to be deficient. To mix these samples would not have cured the deficiency. No question could now be raised as to the method of taking the sample, because the fairness or unfairness of the method adopted was a question of fact for the Sheriffsubstitute. He had found that the method adopted was in fact a fair method. The method suggested by the appellant, to take a sample from the vat after the whole had been poured into it, could not have been followed, because the milk would no longer have been in course of delivery. The point in Crawford v. Harding was that when the samples of milk from all the receptacles had been mixed, there was no deficiency in quality. (2) The Sheriff-substitute was right in following Fecitt v. Walsh.2 The scheme of the statutes was to enable the inspector to take a sample from any receptacle in which the milk was being delivered, and to prosecute in respect of that sample. Section 3 of the 1879 Act used the words "any sample of any milk." It was in respect of the deficiency in the sample that the prosecution was brought. If fourteen samples were separately and fairly taken, 4 1 Crawford v. Harding, Nov. 20, 1906, 1907, S. C. (J.) 11, 5 Adam, 184. Semple v. Dunbar, July 20, 1904, 6 F. (J.) 65, 4 Adam, 399. Telford v. Fyfe. July 16, 1908 each from different milk, it was competent to libel fourteen offences. The terms of the contract were of no moment; the offence did not depend on the contract. By the statutes each procurement of a sample by the inspector was made equivalent to a purchase, and he might prosecute for each as for each purchase. In Semple v. Dunbar1 different samples were taken, but there was only one offence charged, because only one sample was deficient. The offence related to the deficient sample as to a purchase which was not of the proper quality. It was, at anyrate, desirable that statutes which applied to the United Kingdom should be similarly construed in the several countries.2 (3) Section 34 of the Summary Procedure Act* enacted that no conviction was to be quashed for want of form, and that section applied here. At the most it was a case of want of form. There was not even a surplusage of words, because the conviction had to be read as if the word "instantly" occurred after " adjudges him to forfeit and pay." That word was implied, and, if that were so, the reference to the time allowed was not inaccurate, and did not render the conviction incapable of execution. LORD ARDWALL.-With regard to question 1, I am of opinion that on the facts stated the method of sampling adopted was, so far as circumstances permitted, not an unfair or improper method of sampling, and practically afforded a fair sample of the contents of each can. But I think that seeing the sale was of the whole 160 gallons of milk, the samples ought to have been mixed before being analysed. With regard to question 3, I was at the discussion much impressed by the argument in favour of answering it in the affirmative, but having regard to the terms of section 3 of the Sale of Food and Drugs Act, 1879, I have come to the opinion that it would not be competent to adopt the method of sampling there set forth, and that for the reason that the only power conferred on the inspector, or other person charged with the execution of the Act, is that he "may procure at the place of delivery any sample of any milk in course of delivery to the purchaser or consignee in pursuance of any contract for the sale to such purchaser or consignee of such milk." Now, it appears to me that after the consignment of milk had been delivered into the vats it was too late for the inspector to exercise his powers, because the milk was no longer in course of delivery, but had been delivered, and that into a receptacle belonging to the purchaser, for the condition of which the seller could not be held responsible. But this technical difficulty might possibly have been got over by the inspector taking possession of the cans, pouring them into a vat obtained by him for the purpose at the hospital, and taking his sample out of the whole bulk of the milk. The important question in this case is raised by the second question of law, and upon that question I am of opinion that while the respondent was entitled to take a sample from each can, yet it was not competent for him to sue for a separate penalty in respect of each individual can. 1 July 20, 1904, 6 F. (J.) 65, 4 Adam, 399. 2 Morton v. Fyfe, Nov. 2, 1896, 24 R. (J.) 9, 2 Adam, 174. Sec. 34. "No conviction quashed for want of form. The sale and in pursuance of this Act shall be delivery of the whole of the milk in question on the day libelled was one July 16, 1908. transaction and one act, and in my opinion it was wholly incompetent to Telford v. sue for a separate penalty in respect of each and any portion of the milk so Fyfe. sold. Such a proceeding might be carried on indefinitely according to the Lord Ardwall. size and number of the vessels in which any sale of milk in bulk happened to be contained, and what was really one act of infringement of the Food and Drugs Act would by this means be converted into as many acts as there were vessels, which seems to me to be absurd. With all respect to the learned Judges who decided the case of Fecitt v. Walsh, I cannot concur in the decision they gave. The fallacy, I think, is apparent from the opinion of Mr Justice Day, for he says-" Acting under the provisions of the Acts of 1875 and 1879, a constable procured, as there provided, several samples of milk. In each case of procurement he acted as purchaser, and the appellant as seller." Proceeding upon this he holds that there might be a prosecution in respect of each sample taken. I consider that this is not a sound interpretation of the Acts, and arises from mixing up section 3 of the 1879 Act with section 13 of the 1875 Act. Under section 13 it is provided that an inspector "may procure any sample of food or drugs, and if he suspects the same to have been sold to him contrary to any provision of this Act" shall take the proceedings thereafter narrated. It is quite clear that this applies to purchases made by inspectors for the purpose of procuring samples of foods or drugs. But section 3 of the Act of 1879 is in wholly different terms. Not a word is said about selling to or buying by an inspector. On the contrary, it only authorises him to procure at the place of delivery any sample of any milk in course of delivery to the purchaser, who plainly is not the inspector himself, and although it provides that proceedings shall be taken and penalties enforced in like manner as if the inspector had purchased the sample himself, yet that does not assimilate his taking as many samples as he might think necessary to the case of a number of purchases made by him from ordinary retail sellers of foods. It is noticeable that apparently the Act contemplates not many samples, but one sample of milk in a case of this description. Accordingly I am of opinion that though, perhaps, for the sake of testing the milk it might be lawful for an inspector to take several samples, yet the wording of section 3 of the Act plainly shews that it never contemplated the delivery of adulterated milk at the same time and place and under the same contract as anything else than one and not many offences against the statute. To hold anything else would be to put it in the power of any inspector to multiply unnecessarily and unjustly prosecutions for what was one and the same act. I am accordingly of opinion that we should answer this question as I have suggested, and quash the conviction. With regard to the fourth question on which we heard a discussion, I am of opinion that the form of conviction being taken from the Schedule of the Summary Procedure Act of 1864, although it contains some surplus -July 16, 1908. age, is protected in so far as it does so by the provisions of section 34 of Telford v. Fyfe. No. 23. July 16, 1908. H. M. Advo. the same Act. LORD LOW.-I concur. Lord Justice-CLERK.—I agree, and only desire to add one word, as the judgment proposed is not in accordance with a decision in England which was quoted to us. I fully recognise the general principle that it is desirable that the interpretation of an Act of Parliament applying to the whole kingdom should, where possible, be uniform, and that principle should not be departed from unless the case be strong for doing so. In this case the grounds for declining to accept as a ruling decision the case quoted to us are irresistible. The judgment of Mr Justice Day seems to me to be quite erroneous, on the grounds stated by Lord Ardwall. THE COURT answered the second question in the negative, and the fourth in the affirmative, and found it unnecessary to answer the remaining questions. ERSKINE DODS & RHIND, S.S.C.-CAMPBELL & SMITH, S.S.C.-Agents. HIS MAJESTY'S ADVOCATE, Appellant.-Sol.-Gen. Ure- " BENJAMIN JACOB, Respondent.-Hunter, K.C.-R. S. Horne. Trade Marks-Trade Description" Scotch Tweed, All Wool"cate v. Jacob. Applying Description-Merchandise Marks Act, 1887 (50 and 51 Vict. cap. 28), secs. 2 (2), 3 (1), 5 (1) (d).—The Merchandise Marks Act, 1887, enacts -Sec. 2 (1). "Every person who (a) forges a trade-mark; (b) falsely applies to goods any trade-mark (d) applies any false trade description to goods shall, subject to the provisions of this Act, and unless he proves " no intent to defraud "be guilty of an offence. Sec. 2 (2). "Every person who sells, or exposes for or has in his possession for sale or any purpose of trade or manufacture, any goods or things to which any forged trade-mark or false trade description is applied, or to which any trade-mark or mark so nearly resembling a trade-mark as to be calculated to deceive is falsely applied, as the case may be, shall, unless he proves" that he acted innocently, "be guilty of an offence against this Act." Sec. 3 (1). "The expression trade description' means any description, statement, or other indication, direct or indirect (d) as to the material of which any goods are composed Sec. 5 (1). "A person shall be deemed to apply a . . . trade description to goods who (d) uses a trade description in any manner calculated to lead to the belief that the goods in connection with which it is used are designated or described by that . . trade description." A tailor, having received a letter from a person who stated that he wanted "a suit of Scotch tweeds," and asked for "patterns of good stuff-all wool," sent certain patterns of cloth, some of which were Scotch tweed all wool and some of which were not, enclosed in a letter, which stated-" Enclosed please find patterns as desired." The customer chose two patterns, and from the cloth chosen, to which they referred, the tailor made him a suit of clothes. The cloth did not conform to the description "Scotch Tweed, All Wool," as defined by the trade. Held that, even assuming that sec. 2 (2) applies to a false trade description not affixed to the goods by a stamp or label, no false description had been "applied" by the seller in this case. Question whether the application of sec. 2 (2) is not limited to cases where a person sells, or exposes for or has in his possession for sale, goods on which July 16, 1908. a false description is stamped or attached by label. See H. M. Advocate v. Suits, Limited, S. C., 1908, p. 1163. H. M. Advocate v. Jacob. Clerk. A COMPLAINT at the instance of the Lord Advocate on behalf of the HIGH COURT. Board of Trade set forth :-"That Benjamin Jacob, trading under the Lord Justicefirm of The Great London Clothiers Company, 11 Trongate, Glasgow, Lord Low. did, between 17th November and 19th December 1907, in his ware- Lord Ardwall. house at 11 Trongate, Glasgow, sell to Thomas Steven, clerk, 39 Fort Street, Ayr, a suit of clothes to which the false trade description 'Scotch Tweeds, All Wool' was applied, contrary to the Merchandise Marks Act, 1887,* and particularly section 2, subsection (2), whereby the said Benjamin Jacob, trading as The Great London Clothiers Company, is guilty of an offence against said Act." At the trial on the complaint in the Sheriff Court at Glasgow Benjamin Jacob pleaded not guilty. Proof was led, and thereafter the Sheriff-substitute (Glegg) assoilzied him from the complaint. The Lord Advocate appealed, and a case was stated. ject to the provisions of this Act, and unless he proves" no Sec. 2 (2). "Every person who sells, or exposes for or has in his possession for sale or any purpose of trade or manufacture, any goods or things to which any forged trade-mark or false trade description is applied, or to which any trade-mark or mark so nearly resembling a trade-mark as to be calculated to deceive is falsely applied, as the case may be, shall, unless he proves "(a) that having taken all reasonable precautions against committing an offence against this Act, he had at the time of the commis- "(b) that on demand made by or on behalf of the prosecutor he gave all '(c) that otherwise he had acted innocently; be guilty of an offence against this Act." Sec. 3 (1). "The expression trade description' means any description, statement, or other indication, direct or indirect, "(d) as to the material of which any goods are composed, and the use of any figure, word, or mark, which, according to the custom of the trade, is commonly taken to be an indication of any of the above matters, shall be deemed to be a trade description within the meaning of this Act. "The expression 'false trade description' means a trade description which is false in a material respect as regards the goods to which it is applied. "The expression 'goods' means anything which is the subject of trade, manufacture, or merchandise." Sec. 5 (1). "A person shall be deemed to apply a description to goods who "(d) uses a trade trade description in any manner calculated trade to lead to the belief that the goods in connection with which it |