It is important to remember that, because that section differs very considerably from the other sections of the Act. It has been clearly decided that in cases under that section no question of guilty knowledge or fraudulent intent arises, but that the only question is whether the vendor has sold something which is not of the nature, substance, and quality of the article demanded by the purchaser. The knowledge of the seller (what is called the mens rea) is not an essential element of the offence. A master may be convicted of it where the sale is the act of his servant, and a corporation may be liable for the offence. The principles which apply in such cases are laid down by the Lord Chief Justice in a case where it was held that the innocent retailer of beer with which arsenic has been accidentally mixed was liable to be convicted under this section. That was a case of a manufactured article—beer; here we have a natural product-milk; and there is necessarily a certain difference between the two, but I think the same principle is applicable to both. The purchaser in this case came and asked for new milk, and if he got something which he would not expect to get under that description then I think the offence has been committed.

In ordinary cases if the vendor is able to prove that what he has sold as milk is without alteration and without any manipulation the identical thing that came from the cow, then, in the absence of any other evidence, I think it must be held that what he sold was milk; but if the statement of the analyst shows that what was sold had not the proper constituent parts of milk, and if the seller were to prove that he had made inquiries and had discovered that the cow which had yielded the milk was ill, and that the milk was therefore not of its normal strength and richness, and was consequently not of its proper character, then that evidence would confirm the analysis and show, as I think, that what he sold was not of the nature, substance, and quality of the article demanded.

It is true that it would be the direct product of the cow; but the cow was not in fact producing milk, but was producing another liquid which did not contain the constituent parts of milk. In that case I think that the vendor, although acting in good faith and innocently, ought to be convicted under Section 6 for selling an article which was not of the nature, substance, and quality of the article demanded by the purchaser. No doubt it is a hard case, and the justice of the case would probably be met by a merely nominal fine; but I think that there must be a conviction. Now, applying this to the present case, the magistrates have found that the milk in question was not of the normal and necessary strength; and they have also found that it came direct from the cow without being adulterated in

any way. They have further found that this liquid, although it purported to be milk direct from the cow, was not of the nature, substance, and quality of milk. The magistrates find that as a question of fact, and it was within their province to do so. In my opinion they were entitled to come to that conclusion, and we ought not to interfere with their decision. No doubt, as I have said, this is a hard case; but if we do not lay down the rule in this way, it seems to me that it may work mischief in other cases-where, for instance, the milk, though coming direct from the cow, is clearly infected.

66

It

Darling, J.-I regret that I feel obliged to come to a different conclusion. In this case the purchaser asked for "new milk' and he got milk just as it came from the cow. It is said that what he got was not of the nature, substance, and quality of the article demanded; if it was, of course he is not guilty. seems to me clear that what he got was new," and the only question therefore is whether it was "milk." Unless we can say that the liquid he got was not milk we cannot uphold this conviction. There is no doubt that it came direct from the cow and that it appeared to be milk. Of course I understand by the word "milk" cow's milk, and I do not think that a person asking for milk would expect to get ass's milk or that of any other animals. Nor do I think that milk from a diseased cow would come within the word as, seeing that it is an article of food, the person asking for it must be understood to be asking for milk which is fit for human consumption.

It is said, however, that this was not milk, because it did not contain a certain proportion of essential fats. At the time of the alleged offence there was no fixed standard as to the proportions of water and fat to be contained in milk, such as seems since to have been set up by the Order of the Board of Agriculture. But if it was not milk, what was it? The certificate of the analyst says that milk usually contains such and such proportions of water and fat and that this did not. But it is a well-known fact that some cows give milk that is richer in fats than others, and people keep particular kinds of cows for this reason. In my opinion the vendor has supplied the purchaser with something which he was perfectly entitled to call milk. True, it was not so rich as other milk because of the manner in which the cows were milked; but I do not see how it is possible to say that what the purchaser got was not "new milk," although no doubt it may not have been as rich as other milk. I do not think that I should have taken the trouble to differ in this case, if I thought that our decision would only apply to milk, because of the Departmental Order to which I have referred; but I am afraid lest it should apply to other natural products, and I cannot help foreseeing the

difficulties that might arise in such cases, where no standard is in existence, if it were to be held that a natural product was not of the nature, substance, and quality of the article demanded, because it did not contain all the elements, and in the same proportion in which those elements were usually present, in normal examples of the natural product.

In the case of other things than milk, I think it would be highly dangerous for us to lay down that a man may be convicted under Section 6 of the Sale of Food and Drugs Act, 1875, for selling a natural product in the state in which he gets it. For example, a purchaser who had demanded apples and had received them as they were plucked from the tree might complain that they contained less malic acid or other essential than some analyst might prove to be usual in apples. Poor in quality they might be, but they would still be apples, and as nature produced them. So of this milk. I think, therefore, that this conviction ought to be set aside.

Lord Alverstone, C.J.-This case is undoubtedly one of some difficulty; but on the whole I have come to the conclusion that we ought to confirm the conviction. The case comes before us in a somewhat peculiar way. The magistrates have found certain facts, and, on appeal, the Court of Quarter Sessions has affirmed their finding, but has reduced the fine imposed. If there is any evidence which would justify the magistrates in finding these facts, we cannot interfere with their decision. I agree with my brother Darling that the real question in the case is whether what was sold was milk. It is not necessary, as my brother Channell has pointed out, that the vendor should know of the condition of the article he sells -if it is not of the nature, substance, and quality of the article demanded, he is liable under Section 6, although he may know nothing about it. Now is there any evidence on which the magistrates could find that the appellant had sold an article which was not of the nature, substance, and quality of the article demanded by the purchaser? The analyst's certificate shows that the milk that was sold did not contain that proportion of fat which milk ought to contain and usually does contain. I agree that if the only other evidence were that the milk was taken direct from the cow, and if there were no evidence of anything abnormal in the condition of the cow, or in the way in which it had been treated, it would have been wrong for the magistrates to convict the appellant; but it is here found as a fact that though the milk came direct from the cow yet that its abnormal condition was due to the way in which the cow had been treated.

The magistrates have found that the article supplied was not of the nature, substance, and quality of the article

such a condition

It is impossible, facts, that there

demanded, because it came from the cow in that it could not be described as milk at all. as I think, to say, having regard to the was no evidence on which they could so find. As to the recent Order of the Board of Agriculture, I do not think it purports to set up a standard of what is or is not genuine milk, but only means to say that the want of a certain percentage of fat is to be primâ facie evidence that the milk is not genuine. If, however, the article produced, although it is produced by a cow, is the result of an abnormal condition of things arising either from disease or as here from unusual treatment of the cow, I think that that does amount to evidence on which the magistrates can find that the article is not of the nature, substance, and quality of the article demanded. It seems to me that a man asking for new milk is entitled to have an article which is none other than ordinary new milk by reason of any special way in which the cow has been treated. I think, therefore, that we cannot reverse the finding of fact by the magistrates, and that this appeal must be dismissed.

However good in law, this decision cannot fail to be disconcerting to the ordinary farmer who sells milk, for it would appear that in order to be on the safe side, he must have his cows milked not only at regular, but at equal intervals between each milking. S. B. L. DRUCE.

14 Old Square, Lincoln's Inn.

MILK-BLENDED BUTTER.

THERE have been several cases before the High Court lately in which the question at issue was whether the sale to a purchaser, who asked for " Butter," of butter mixed with milk was an infringement of the 6th Section of the Sale of Food and Drugs Act, 1875, as being a sale of an article of food which was not "of the nature, substance, or quality of the article demanded by the purchaser." It would occupy too much space to set out these cases at length; but an abstract of some of them as reported in the Law Reports of the King's Bench Division of the High Court of Justice for the years 1901 and 1902, may be interesting and useful. It should be understood that the cases were tried before the Board of Agriculture

had made its Regulation of April 22, 1902, whereby it is provided that when the proportion of water in a sample of butter exceeds 16 per cent. it shall be presumed, for the purpose of the Sale of Food and Drugs Acts, 1875 to 1899, until the contrary is proved, that the butter is not genuine by reason of the excessive amount of water therein.

The first two cases which I will mention are Pearks, Gunston, & Tee, Ltd., appellants, v. Knight, respondent, and the same company v. Van Tromp-reported in L.R., 1901, 2 K.B., page 825. The appellants are grocers and provision merchants, with shops in various parts of the country, but with a registered office in London, and the respondent in each case was an inspector appointed under the Sale of Food and Drugs Acts who had bought or caused to be bought at the appellants' shop some "butter" for analysis. The public analyst in each case certified that the butter so bought contained 22.53 per cent. of water, and that this was at least 6 per cent. too much. This 6 per cent. it was proved was not the result of the manufacture of the butter from milk or cream in the ordinary way, but was caused by the addition to butter already manufactured of extraneous milk, which was incorporated by some process with the butter for the purpose of increasing its weight by means of the extra water thereby introduced. The magistrate, before whom each case was tried, in the first instance held that the process of adding milk to the butter being for the purpose of the addition of water constituted an offence under the above-mentioned section of the Act, in that the article sold was not of the nature, substance, or quality demanded by the purchaser; and, an appeal being brought to the Divisional Court, that Court upheld the magistrates' decisions.

In giving judgment Wills, J. said:

"The purchaser in each case demanded butter. What did he get? He got something which had been butter, because it began by being butter; but by some ingenious process, the nature of which is probably a trade secret, milk had been added to it, and care was taken that the milk should be added in such a way that it should not become butter. It is not simply a question of whether the butter as sold contained 20 per cent. or 25 per cent. or any other percentage of water. The material thing is that the very object of the process to which this butter was subjected was that the milk added should not become butter, so that a greater proportion of water, which in the ordinary process of making butter would be eliminated, should still be in the butter. By reason of the presence of the added milk this was a spurious compound; it was not a genuine article. It was the genuine