the purpose of fraudulently increasing the bulk or weight of the coffee, and convicted the defendant. The conviction was upheld by the High Court. In another instance, under similar circumstances, a mixture was sold which contained 85 percent of chicory instead of 60. The defendant, besides pleading the label in defense, urged that he sold the article. in the condition in which he received it from the manufacturer. The magistrate found that the chicory had been added fraudulently. The High Court upheld this decision, and one of the judges said that the magistrate was bound to find whether the chicory was used fraudulently to increase the bulk; that if it was so used he ought to convict, notwithstanding the label, and that it was no defense for the vendor to say that he sold it just as he had received it from the manufacturers.3 In another instance the facts were somewhat different. An inspector, on entering a shop, asked for "French Coffee," and was supplied with a mixture containing 60 percent of chicory and 40 percent of coffee. Upon the tin was a label stating that it was a mixture, and his attention was called to the label. There was also evidence that "French Coffee" was a well-known commodity, and that the description was not misleading; but the magistrates convicted the seller on the ground that the chicory had been added fraudulently to increase the bulk. But the High Court held that there was no evidence of fraud; that the seller was protected by the label, and that the conviction was wrong. In another instance the mixture sold consisted of 30 percent of cocoa and 70 percent of starch and sugar, and it was held that a label stating it to be a mixture, in the absence of any evidence of fraud (since nearly all cocoas are mixtures), was a sufficient protection to the seller. In still another instance the purchaser asked for "best fresh butter," and was supplied with "Pearks' butter," a mixture of butter and milk containing over 20 percent of water. The butter was handed

2 Liddiard v. Reece, 44 J. P. 233. A similar case is Star Tea Co. v. Neale 73 J. P. 511, 8 L. G. R. 5.

8 Horder v. Meddings, 44 J. P. 234.

4 Otter v. Edgley, 57. J. P. 457. 5 Jones v. Jones, 58 J. P. 653.

to him in a wrapper on which was a printed label containing the following words: "Pearks' butter. This is choicest butter, blended with pure English full cream milk, by new and improved machinery, whereby it retains about 20 to 24 percent of moisture, and acquires that delicacy of flavour which has made Pearks' butter so famous. This package weighs half a pound, including wrapper. The court considered that, although the butter was not "best fresh butter," yet the vendors were protected by the label. A sale of wheat middlings and corn for domestic animals under a label representing them to be such, when in fact it is adulterated with corn-cob meal, is a violation of a statute prohibiting the misbranding or adulteration of any article of food. An article composed of the compound of vanilline, cumerin, spirits, sugar, coloring and water, and plainly labeled on one side with the words "Peerless Extract of Vanilla," and on the reverse side, in small letters, with the words "Formula Vanilline, Cumerin, Spirits, Sugar, Coloring, Water," is misbranded within the provisions of a statute declaring that an article shall be deemed misbranded where it is an imitation of, or offered for sale under the distinctive name of another article, and is not a mixture or compound known under its own distinctive name. Such a statute prohibits the sale of a counterfeit for the genuine, though the counterfeit does not contain poisonous or deleterious ingredients; and where a false label is put on one side of an article in such a manner as to arrest the eye, the offense is not evaded by a true label put where it is likely to escape notice.9 A statute which

makes it an offense to sell an unlabeled, adulterated food, has no application to a sale of an unlabeled but not adulterated article.10 A statute forbade the sale of cane syrup or

Hayes v. Rule and Law, 87 L.

T. 133, 18 T. L. R. 535.

7 W. H. Small & Co. v. Commonwealth, 134 Ky. 272, 120 S. W. 361.

8 People v. James Battler, 134 N. Y. App. 986, 118 N. Y. Supp. 849. 9 People v. James, supra.

10 State v. Weeden, 17 Wyo. 418, 100 Pac. 114.

A statute making it an offense to sell misbranded food, being penal, must be strictly construed, and if it merely requires packages of food to be branded, it is not an

beet syrup mixed with glucose, unless the package containing it be distinctly branded "Glucose Mixture" or "Corn Syrup," with the name and percentage of each ingredient contained therein plainly stamped thereon. Under this statute it was held that a sale of syrup made of 90 percent pure corn syrup and 10 percent cane syrup, labeled "Victor Corn Syrup," and truthfully stating the ingredients composing it, was not in violation of its requirements, in that it was not branded "Glucose 90 percent and Cane Syrup 10 percent.''11 A New York statute provides that where honey is one of the ingredients of a mixture it shall be so stated in the same size type as the other ingredients, but shall not be sold as honey, nor shall it be branded as "honey" in any other form than as provided by law, nor shall any mixture be sold as honey or branded with the word "honey" unless it is pure. A subsequent statute provided that an article of food which does not contain any deleterious ingredients shall not be deemed adulterated if it is so labeled as to plainly indicate that it is a mixture or combination, and that it should be so labeled as to show the character and its constituents. The defendant sold a mixture composed in part of honey. On the label of the package appeared the words "honey syrup," "honey" in letters many times larger than those in the latter word. In an action to recover the penalty imposed by the statute for a violation of its provisions, the evidence showed that only one other substance than honey was employed. The plaintiff insisted that the word "glucose" should have been employed, but there was no evidence that

offense to sell unlabeled food when it is not put up in such packages. State v. Neslund, 141 Iowa 461, 120 N. W. 107.

By a statute commercial products had to be "branded or tagged with the manufacturer's analysis" showing the percentages of certain determinations specified in such statute. It was held that, if any analysis branded on the package

showed the percentages of ingredients the fertilizer is guaranteed to contain, it need not specify other ingredients mentioned in the statute, about which there is no guaranty. Williams v. Barfield, 31 Fed. 398.

11 People v. Harris, 135 Mich. 136, 97 N. W. 402, 10 Detroit Leg. N. 694.

such substance was an article of food under the distinctive name of "glucose." It was held that the court should have taken judicial notice that the word "glucose" enters into the many different articles of food, and was not used by itself as such, so that it was a question of fact whether the word "syrup" was not a sufficient characterization of the ingredients employed, so as to take the case to the jury.12

§ 556. Instances of Proper and Deficient Labels.

A statute required an original package to be marked on its top, side and bottom. The top of a package was removed so as to expose the oleomargarine, and while in that conditon a sale was made at retail of a small quantity. It was held that the statute had not been violated; for the statute did not say that under such circumstances the package should be constantly kept covered. If the vessel from which the sale is made be properly marked, it is error to tell the jury the seller is liable to the penalty of the statute unless the buyer had notice or knowledge that the article was adulterated.2 Where a statute made it unlawful to sell oleomargarine from a wagon without having on both sides of the vehicle placards marked "Licensed to Sell Oleomargarine," the hanging of such placards on both of the insides of the wagon was held not to be a compliance with its provisions.3 A statute requiring a restaurant keeper to notify his customer that the article furnished is not butter is not complied with by placing on the walls conspicuous signs on which are the words, "Butterine Used Only Here," and to put on the bill of fare, "Only Fine Butter Used

Here," unless such guest saw the signs or read the bill of fare.* A statute prohibiting the sale from a public vehicle in the street of "oleomargarine, butterine or any substance made in imitation or semblance of pure butter" without a sign therein provided for, applies to all kinds of oleomargarine, whether designedly made to imitate butter or not.3 If the statute requires the seller of oleomargarine to orally inform the purchaser what it is and to give him "a card or notice, printed on which shall be the name of the substance sold, and the name and address of the seller or vendor," a failure to give such card, although full information was given orally, is such a violation of the statute as lays the seller liable." Where a statute forbids the sale of oleomargarine in imitation of yellow butter, a sale of such oleomargarine thus an imitation, although the purchaser be fully informed of the character of the article at the time he purchases it, is a violation of the statute. The label on a bottle of "lime juice" referred to "this famous beverage" as being "mixed and composed only of the juice of the lime and other natural fruits, acids, etc., diluted with water," and then went on to state that it was a most refreshing and wholesome beverage. The "lime juice" consisted of water containing but little lime juice. It was held that the label was only an advertisement and not a statement of the "nature or composition" of the lime juice within the meaning of the Australian statute.8

4 Commonwealth v. Stewart, 159 Mass. 113, 34 N. E. 84.

5 Commonwealth v. Crane, 162 Mass. 506, 39 N. E. 187.

6 Bayles v. Newton, 50 N. J. L. 549, 18 Atl. 77.

7 Commonwealth v. Russell, 162 Mass. 520, 39 N. E. 110.

If diseased meat can be lawfully sold to a purchaser by disclosing fully its condition, upon proof of a sale of such a meat the burden is upon the defendant to show he

gave the notice required to make the sale lawful. Seibright v. State, 2 W. Va. 591. See State v. Falk, 38 Mo. App. 554, as to indictment. Under New York Laws 1881, ch. 407, relating to the selling of adulterated food, the presence or absence of a label does not constitute an element of the offense. People v. Bischoff, 14 N. Y. St. Rep. 581.

8 Rider v. Freebody, 24 Viet. L. R. 429, 20 Aust. L. T. 115, 4 Aust. L. R. 251.