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held that a fish inspector whose duty it was to inspect fish offered for sale, and destroy such as are unwholesome, had judicial duties and powers, and while acting within his jurisdiction, was not liable for the careless, improper or erroneous performance of his duties, though he knew his unfitness for the office.3 An inspector has been held liable when a statute provides for the liability for his deputy's want of reasonable skill, care and fidelity in the discharge of his duty, but he was not responsible for his mere errors of judgment.* an action, under such statute, against the inspector for damages sustained by the default of a deputy in branding a cargo which the plaintiff had purchased and exported, the measure of damages was held to be the difference between the actual value of the fish in the foreign market and the value of fish of the quality and condition indicated by the brand at the same time and place, when the fish were exported within a reasonable time after inspection to no remote or unusual place for the exportation of the same kind of fish, and were exposed to no extraordinary cause of damage.5 Evidence that the fish had been examined and passed inspection at the foreign market to which they were shipped was held not conclusive against the plaintiff's claims for damages, though important as evidence of their conformity to the brand." It is not competent for the inspector to prove as a defense the customary mode pursued by other inspectors, or that it was usual for inspectors to take a bond of indemnity against a deficiency in the quality, or in the condition of the article branded. Any one purchasing upon the credit of an inspector's bond may recover of him damages sustained, where the inspector affixed his brand to an article without knowing its condition. In an action to 8 Pearson v. Purkett, 15 Pick. 264.

3 Fath v. Koeppel, 72 Wis. 289, 39 N. W. 539.

4 Pearson v. Purkett, 15 Pick. 264. In this case it was held that the principal's liability was not limited by the amount of the penalty of his bond, when he was sued because of his agent's act.

PURE FOOD-41.

6 Pearson v. Purkett, 15 Pick. 264.

7 Nickerson v. Thompson, 33 Me.

433.

recover damages occasioned by the neglect of the inspector in cutting, packing, salting, and coopering the beef" inspected, the plaintiff was held entitled to recover, whether the loss was attributable to the unsuitable condition of the meat when it was packed, to the want of sufficient salt or pickle, to the want of faithful coopering, or to an apparent defect in the barrels. Where a city meat inspector went into plaintiff's place of business, a wholesale butcher, and selected, marked, and took away a number of calves, and the owner brought an action against the inspector to replevin them, and the evidence failed to show that the calves were condemned by the inspector, it was held that a recov ery by the plaintiff was proper." A statute of New York fixed at four weeks the minimum age at which a healthy calf might be sold or exposed for sale for food, and provided that a person duly authorized by the Commissioners of Agriculture might examine a calf exposed for sale, and, if it was "under four weeks of age," might seize or destroy it. No provision was made for compensating the owner for the destruction of his calves. It was held that the official seizing a calf that was exposed for sale must act at his peril; and if he seized one in good faith on the claim that it was "under four weeks of age," and it was over four weeks of age, he was liable, although its physical appearance would lead any one to think it was under that age; but it was said that the Legislature "might have vested the authority 'to seize if the animal is actually or apparently under four weeks of age, and in that event the agent of the Commissioner of Agriculture acting in good faith might be exonerated of liability, even though the calf exceeded the age limit." But concerning calves seized that were under the age of four weeks, it was held there was no liability. In the latter instance the statute provided that a person ex

8 Hayes v. Porter, 22 Me. 371.

9 Kamman v. Lane, 55 Mich. 426, 21 N. W. 872.

See where the inspector of wheat was held not liable for error in

stating the quality of the wheat inspected, to a purchaser of such wheat, where he relied upon the inspector's certificate. Gordon V. Livingston, 12 Mo. App. 267.

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posing a calf for sale or shipping a calf would be presumed to be so exposing or shipping it for food; that a person shipping a calf under four weeks of age for the purpose of being raised should ship it in a crate, unless it be accompanied by its dam; and that a person duly authorized by the Commissioner of Agriculture may examine a calf exposed for sale, or kept with any stock "apparently exposed for sale,' and, if it be under four weeks of age, may seize and destroy it. The owner-plaintiff shipped, consigned to himself at stockyards, a lot of calves over four weeks old, and four fresh milch cows, and with each cow its calf from ten days to two weeks old; and on their arrival at the stockyards the young calves were, though without the plaintiff's knowledge or authority, separated from the cows, and with the other calves placed in a pen where calves were to be sold and exposed for sale. It was held that the agent of the commissioner was within his authority in seizing and destroying the young calves; and this though during the day the plaintiff told the agent that such calves were to be sold with their dams, which it was lawful to do, and importuned him to let them go; and though the day on which they were seized was Sunday, which was not a sales day, and on which day the stockyards were prohibited from being open for sales; sales, in fact, being made there on Sunday, as known to the agent."

10 Williams v. Rivenburg (N. Y. App. Div.), 129 N. Y. Supp. 473.

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§ 529. Frequent Source of Litigation.

The sale of milk has given rise to more litigation because of its adulteration than any other article of food. Statutes concerning its adulteration are stricter, usually, and more stringent in their provisions than in their provisions than those relating to any other food. This is natural, for the ease with which it can be adulterated and the difficulty of detection are far greater than that of any other article of food. The temptation of dealers in milk is also greater probably than that of the dealers in any other food. At one time, before the advancement of general knowledge of the fact that there was an inherent difference in milk, there was a rough estimate that "milk was milk;" and that the milk of one cow was as good as that of another, disregarding the quality when making the assertion. Gradually this idea has been eliminated from the public's mind by education and experience. The rapaciousness and greediness of milk dealers have also been a constant source of peril which it has required the heavy hand of the Legislature to restrain,

and which has brought about much severe and contentious litigation.1

§ 530. Fixing a Standard-Unadulterated Milk.

It is a very common practice for the Legislature to fix a standard for milk, as that it shall contain a certain percentage of fats or solids. Usually the standard thus fixed requires 12, and sometimes 13, percent of milk solids, or not to exceed 88 or 87 percent of watery fluids. When such is the case, in a prosecution for a violation of the provisions of the statute, it is not necessary to allege what reduced the milk below the legal standard.1 When a statute requires a certain percentage of solids, a sale of milk not having that percentage is a violation of the provisions, though no adulterating matter has been added to the milk, but it is just as it comes from the cow.2 The actual product of the cow

1 The word "food" includes whatever is eaten or drank by man for nourishment; and, therefore, includes milk. Section 1. Commonwealth v. Hartman, 19 Pa. Co. Ct. Rep. 97, 6 Pa. Dist. Rep. 136; State v. Smith, 69 Ohio St. 196, 68 N. E. 1044.

The word "milk" used in a statute in its general sense includes "cream." Commonwealth v. Gordon, 159 Mass. 8, 33 N. E. 709.

"Milk is the secretion of the mammary glands of female mammals for the nourishment of their young. Containing as it does all the requisites for a complete food, i. e. sugar, fat, proteins, and mineral ingredients, combined in appropriate proportion, there is ample reason why it occupies so high a place in the scale of human foods. It is a yellowish white opaque fluid, denser than water, containing in complete solution the sugar, solu

ble albumin and mineral content, and, in less complete solution, the casein, while the fat globules are held in suspension in the serum, forming an emulsion. The specific gravity of pure milk ranges from one and twenty-seven onethousandths to one and thirty-five one-thousands." Leech, Food Inspection, 124.

Eight hundred analyses of cow's milk showed 1.0264 to 1.0370 specific gravity, 80.32 to 90.32 water, 1.79 to 6.29 casein, 0.25 to 1.44 albumin, 2.07 to 6.40 total proteids, 1.67 to 6.47 fat, 2.11 to 6.12 milk sugar, and 0.35 to 1.21 ash. Leech, Food Inspection, 127.

1 Commonwealth v. Keenan, 139 Mass. 193, 29 N. E. 477; St. Louis v. Ameln (Mo.), 139 S. W. 429.

2 People v. Cipperly, 101 N. Y. 634, 4 N. E. 107, 37 Hun 324; State v. Smyth, 14 R. I. 700, 51 Am. Rep. 344; State v. Layton, 160 Mo. 498,

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