THE ANALYST. 169 AMOUNT O F WATER I N MARGARINE. JOSEPH BURTON AND SONS (LIMITED) v. MATTINSON. This was an appeal by way of case stated from a decision of justices convicting the appellant company, under Section 6 of the Sale of Food and Drugs Act, 1875, of selling mar- garine not of the nature, substance, and quality demanded by the purchaser. The facts were as follows: On December 9, 1901, the appellants exposed for sale at their shop at Rushden, Northamptonshire, a substance labelled margarine and ticketed for sale at 6d. per pound. The respondent entered the shop and called for 1 pound of margarine, to be supplied out of the margarine so exposed for sale, and he was served with 1 pound of the substance, for which he paid 6d. The formalities required by the Act were carried out, and the substance was duly analysed.I t was admitted that the appellants had complied with all the requirements of the law as to labelling and selling the substance sold as margarine. The analyst’s certificate stated that the sample contained the percentage of foreign ingredients as follows: “ Water, 21 per cent. (and this was at least 5 per cent. in wcess of the amount of water which margarine should contain.)” I t was objected on behalf of the appellants that the words in brackets were no proper part of the analyst’s certificate, but were a mere expression of opinion, which was in no way receivable in evidence. I t was stated by the analyst, who was called as a witness for the respondent on the requisition of the appellant, that the average percentage of water contained in margarine was from 8 to 10 per cent., so that, in stating in his certificate that this sample contained at least 5 per cent.in excess of the maximum amount which should be present in mar- garine, he was dealing with the margarine leniently and allowing the same maximum as is allowed in butter-namely, 16 per cent. ; that margarine, in his experience, should contain rather less moisture than butter ; that well-made butter contains 10 to 12 per cent. of water on an average ; that the principle or valuable constituent of butter was fat, of which the percentage should be from SO to 85 ; that the only valuable constituent of margarine was also fat, of which it should contain at least 85 per cent. ; that this particular sample contained only 70 per cent. of fat, so that what was lacking in fat was made up in water and salts ; that margarine was made from various fats, either animal or vegetable-it was usually made from the more liquid portions of animal fat mixed with various vegetable fats; that margarine should, in his opinion, imitate butter, not only in appearance, but also in its constituent elements.I t was admitted that there was nothing in the substance sold injurious to health, and that margarine was sold at times in the district for as much as 8d. to 1Od. per pound, and for as little as 4d. per pound, so that 6d. per pound was the price of a comparatively cheap quality of margarine. I t was admitted by the two witnesses of the respondent that the sample sold was in outward appear- ance an imitation of butter. No evidence was given on the part of the appellants, but it was contended by counsel for the appellants on the above facts that the appellants had committed no offence in point of law, because (1) the term “ margarine ” was not a conventional term or one affixed by usage to any substance, but was a statutory term affixed by the Margarine Act, 1887, to all substances, whether compounds or otherwise, prepared in imitation of butter, and that the substance then in question being prepared in imitation of butter was rightly sold as margarine, and was, therefore, of the nature and substance demanded by the purchaser ; (2) the quality of the substance supplied was that demanded by the purchaser, being the margarine at 6d.per pound then exhibited for sale in the appellants’ shop at Kushden ; (3) the Legislature had not170 THE ANALYST.fixed any standard for margarine nor enacted of what ingredients it should be composed nor the proportions in which they should be combined; (4) if it be necessary that a substance sold as margarine should imitate butter, not only in outward appearance and nature, but in the ingredients used in its composition, the substance then in question, being not only similar to butter in such outward appearance, but also being composed of the same ingredients as butter- namely, fat, water, and salt--was margarine, and an article of the nature, substance, and quality demanded. It was contended for the respondent that, although the Legislature had not fixed any standard for margarine, neither had it fixed any standard for butter, and yet there had been several convictions for selling butter which contained more than 16 per cent.of water, and such convictions had been upheld on appeal, and that if it was illegal to sell butter with more than 16 per cent. of water, it was also illegal to sell margarine with more than the same percentage. That if it was lawful to sell as margarine a substance containing 21 per cent. of water, there was no reason why such substance should not be sold containing 40 or 50 per cent. of water. That water was not a substance prepared in imitation of butter within the definition of mar- garine contained in the Margarine Act, 1887. The justices overruled the appellants’ objections, being of opinion that the water found in the margarine was excessive, and that, therefore, the article sold was not of the nature, substance, and quality demanded, the same being adulterated with water, and they convicted the appellants sitbject to the present case, imposing a penalty of 21 with costs.Mr. Avory, K.C., and Mr. W. H. Stevenson appeared for the appellants ; and Mr. Swinburne- Hanham for the respondent. The court dismissed the appeal yesterday. The LORD CHIEF JUSTICE said that in this case the magistrates, the sale being a sale of margarine, and the provisions of the Margarine Act, 1887, having been complied with, had found that the water found in the margarine was excessive, and that, therefore, the article sold was not of the nature, substance, and quality demanded, the same being adulterated with water.That meant that the substance was margarine and water, and not margarine. The Court had been pressed to say that this finding could not stand, because there was no evidence on which the magistrates could come to the conclusion that the substance was margarine and water. I t was contended that the whole matter was governed by Section 3 of the Margarine Act, 1887, which enacted that ‘‘ the word ‘ margarine ’ shall mean all substances, whether compounds or otherwise, prepared in imitation of butter, and whether mixed with butter or not, and no such substance shall be lawfully sold except under the name of margarine and under the conditions set forth in this Act.” I t was contended that, if a person sold any imitation of butter and called it margarine, there would be practically no inquiry into the nature of the substance.The objection to this contention was that it overlooked the provisions of the legislation under which the purchaser is entitled to get what he asks for. He did not say that the presence of any particular percentage of water prevented an article from being margarine. Rut the court had merely to see whether there was any evidence that the article in question was not margarine but mar- garine and water. The analyst’s certificate said that the substance contained 21 per cent. of water, “and this was at least 5 per cent. in excess of the amount of water which margarine should contain.’’ Unless the analyst was called the certificate was, under the Act, sufficient evidence of the facts therein stated. The defendant could, however, require the analyst to be called. I n this case this was done, and the analyst in his evidence stated the line of reasoning which led him to the conclusion that he was right in stating that margarine should not contain so large a percentage of water as was present in this case. The analyst’s reasoning had been criticised. But no evidence had been called on the point ; and it was impossible to say that the magistrates were not justified in relying on the certificate supplemented by the analyst’s evidence, and in holding that the substance was margarine and water and not margarine. I t was said he ought not to have compared margarine with butter. Mr. JUSTICE DARLING and Mr. JUSTICE CHANNELL delivered judgments to the same effect.