8 price, is no offense. So where marmalade was sold which contained 13 percent of glucose instead of cane or beet sugar; and evidence was given showing that for many years glucose had been used by some marmalade manufacturers, but not by all, and that its use had a tendency to prevent mildew, it was held that there was no evidence to show that this substance was not "marmalade.' 779 An accidental introduction of deleterious matter into an article sold for food does not of necessity make it different in nature, substance and quality from the article demanded.10 But if an article sold be altogether different from that which was demanded by the purchaser, an offense is committed, as where saffron was asked for and savin supplied." The question whether the article sold is the article demanded by the purchaser is one of fact for the court or jury trying the case.12 In determining this question of fact, the court or jury, in England, are entitled to use any special knowledge that they may possess as to what is known commercially under any particular name, even though no evidence may be forthcoming upon the point. Thus where a grocer had sold a packet of cocoa containing 80 percent of starch and sugar; and the justices, who were all retired naval officers, had a large experience of cocoa, which formed one of the regular rations on board naval ships; and acting on the knowledge so acquired, and without hearing any evidence concerning the composition of cocoa as sold commercially, came to the conclusion that the starch and sugar had not been added fraudulently, notwithstanding the fact that the analyst had cer 8 Morton V. Green, 8 Rettie (J. C.) 36, 4 Coup. 437. 9 Smith v. Wisden, 66 J. P. 150, 85 L. T. 760; Wilson v. McCutcheon, 4 Adam 34, 40 Sc. L. R. 31. 10 Goulder v. Rook [1901], 2 K. B. 290, 65 J. P. 646, 70 L. J. K. B. 747, 84 L. T. 719, 49 W. R. 684; Bent v. Ormerod [1901], 2 K. B. 290, 65 J. P. 646, 70 L. J. K. B. 747, 84 L. T. 719, 49 W. R. 684. 11 Knight v. Bowers, 14 Q. B. Div. 845, 49 J. P. 614, 54 L. J. M. C. 108, 53 L. T. 234, 33 W. R. 613, 15 Cox C. C. 728. 12 Webb v. Knight, 2 Q. B. Div. 530, 41 J. P. 726, 46 L. J. M. C. 264, 36 L. T. 791, 26 W. R. 14; Friend v. Mapp, 68 J. P. 589, 2 L. G. R. 1317; Goulder v. Rook, supra; Pashler v. Stevenitt, supra. tified that the cocoa was adulterated, and being of the opinion that the offense, if any, was quite trifling, and discharged the vendor, their action was approved by the High Court.13 So in an instance of caper tea, and the analysis showed that the sample in question was adulterated with 3.5 percent of animal matter; and in the cross examination. of the analyst, a report of the authorities at Somerset House, the official chemical office of England, on the subject of caper tea was put to him with a view to showing that extraneous matter was necessarily present in caper tea, owing to its method of production, it was held that the justices committed no error in reading and acting upon it, though rightly refusing to admit it in evidence.14 A milk dealer had on his cart in fairly large letters the words "Containing Preservatives." The plaintiff bought milk from him which was taken from a can in the cart. Plaintiff did not know of the words on the cart until after he had received the milk and paid for it, when the defendant called his attention to them. The milk contained boric acid. It was held that the sale was to the prejudice of the purchaser, the fact that there was a notice which the plaintiff might have read but which he did. not read or know of until the sale was completed was no defense.15 A sale "to the prejudice of the purchaser" takes place when the purchaser is supplied with an article containing little, if any, of the article of food demanded by him.1 § 565. Exposure for Sale. Not infrequently statutes make it an offense to expose for sale adulterated food. This is especially true of oleomar 13 Regina v. Field, 64 L. J. M. C. 158. 14 Shortt v. Robinson, 68 L. J. Q. B. 352, 63 J. P. 295, 80 L. T. 201, 19 Cox C. C. 243. 15 Rider v. Bachus Marsh, etc. Co. [1905], Vict. L. R. 147, 26 Aust. L. T. 156, 11 Aust. L. R. 37. 16 Rider v. Freebody, 24 Vict. L. R. 429, 20 Aust. L. T. 115, 4 Aust. L. R. 251; Rider v. Bachus Marsh, etc. Co. [1905], Vict. L. R. 147, 26 Aust. L. T. 156, 11 Aust. L. R. 37. Exposing for sale means an garine and adulterated milk. actual exposure to the public. kept oleomargarine in imitation of butter for sale in his store, in a closed and covered refrigerator, so that it could not be seen by his customers, it was held that proof of such facts did not justify a conviction of having made "an exposure for sale" within the meaning of the statute. Upon a prosecution for a failure to supply a sample of food for analysis, as a statute required, it was held error to refuse evidence to show that the defendant did not expose for sale the article forming the basis of the prosecution.2 Where an inspector was served with a portion of margarine cut off a parcel of the substance which was lying on the counter concealed by a screen in such a manner as to be invisible to a customer in the shop; and the portion so handed to the inspector was wrapped in the wrapper required by the statute with the statutory marks thereon, it was held that the parcel of margarine so concealed by the screen was not "exposed for sale," and, therefore, needed no label. In another case there was a notice in a shop window advertising "Danish Butter." An inspector went in and asked for some. On the counter there was a heap of paper parcels, each of which had the word "Margarine" printed on it. One of these was handed to the inspector, and was found to contain margarine. The shopkeeper was prosecuted for neglecting to attach to the heap the label required by the statute, and the court dismissed the case, holding, on the authority of the case just cited, that the margarine being wrapped in paper, and, therefore invisible to the purchaser, was not "exposed for sale" within the meaning of the statute. But on appeal the case was reversed on the ground that the lower court had taken an erroneous view of that case, one of the judges saying: "I entirely agree with the decision in Crane v. Lawrence, which was, in effect, that there was no exposure for sale 1 Commonwealth v. Byrnes, 158 Mass. 172, 33 N. E. 343. 2 Margolius v. State, 1 Ohio N. P. 264. 3 Crane v. Lawrence, 25 Q. B. Div. 152, 54 J. P. 474, 59 L. J. M. C. 110, 63 L. T. 197, 38 W. R. 620, 6 T. L. R. 370. when the margarine was stored in a back room or cellar. The decision is simply that margarine which can not in any sense be seen by the purchaser is not exposed for sale. In this case, the justices refused to convict the defendant on the ground that "the second part of section six [that part requiring the wrapper to have on it the word 'Margarine'] does not apply to margarine which is wrapped up in paper. That, in my opinion, is a wrong view of the section. The expression 'exposed for sale' is a well-understood term, and can not be limited so as to mean only 'exposed to view'.'' Where slices of bread, spread with a mixture of Danish butter and margarine, were sold for consumption on the premises, and also haddocks, on which was put margarine cut from a lump kept on a shelf, it was held that the margarine had not been exposed for sale by retail.5 "The question comes to this was the case one in which margarine was exposed for sale by retail ..? In order to arrive at a conclusion as to this, one must read the concluding portion of the section." That shows what the character of the sale intended to be dealt with by the section is; and it is perfectly obvious that the machinery provided by the section is inapplicable to the course of business as it is carried out at this establishment. It would be absurd to apply the provision as to using a wrapper to each separate piece of margarine when spread on the bread or used with the haddock." 4 Wheat v. Brown [1892], 1 Q. B. 418, 56 J. P. 153, 61 L. J. M. C. 94, 66 L. T. 464, 40 W. R. 462, 8 T. L. R. 294. 5 Moore v. Pearce Dining and Refreshment Rooms [1895], 2 Q. B. 657, 15 Rep. 611, 59 J. P. 805, 65 L. J. M. C. 7, 73 L. T. 400, 44 W. R. 94, 18 Cox C. C. 196. "If such margarine be exposed for sale, by retail, there shall be attached to each parcel thereof so exposed, and in such manner as to be clearly visible to the purchaser, a label marked in printed capital letters not less than one and a half inches square, 'Margarine,' and a person selling margarine by retail, save in a package duly branded or durably marked as aforesaid, shall in every case deliver the same to the purchaser in a paper wrapper, on which shall be printed in capital letters, Margarine'". 38 and 39 Vict., ch. 63, § 6. 7 Moore v. Pearce Dining and Refreshment Rooms, supra. In an action to recover a penalty for exposing for sale the carcass of a calf under four weeks of age when killed, and which was lying on the floor near the wall when seized, about 6 o'clock a. m., in the defendant's place of business, it appeared that the carcasses of calves were at times delivered at the defendant's place of business in the nighttime and piled upon the floor between business hours, and that when consignments came it was usual to sort out any small carcasses and leave them on the floor pending the arrival of the city inspectors, who called every day, a judgment was held unauthorized. § 566. Purpose of Sale. A statute may require the article sold to be sold for food before an offense is committed. Thus where a statute provided that whoever "sells, or has in his possession with intent to sell, the meat of any" sick or diseased or injured animal, he would be liable to a fine under this statute, the court held to constitute the offense the meat must be sold for food. "The evident object of the provision," said the court, "was to prevent the killing of such animals for the purpose of sale for food, or selling, or having in possession with intent to sell, for food, the meat of such animals. The Legislature evidently did not intend to prevent the killing of such animals with intent to sell, or the selling of the meat, for such purposes as would not affect the public or individual health; and the killing for sale, or the sale of the meat for other harmless purposes, for which it might have a commercial value, was not intended to be interdicted. The statute is to be construed as if the interdict had been put upon the killing for the purpose of sale for food, and the selling or having in possession the meat with intent to sell it for such 8 People V. Steers & Menke (N. Y.), 113 N. Y. Supp. 486. A statute providing that no adulterated milk "shall be brought into, held, or offered for sale at any place in the city" does not pro hibit the mere possession of adul terated milk. People v. Timmerman, 179 N. Y. 550, 71 N. E. 1136, affirming 79 N. Y. App. Div. 565, 80 N. Y. Supp. 285. |