224 LAW REPORT LAW REPORT. Quality of Milk: The Feeding of Cows. Hunt w. Richardson. (Bef0l.e MR. JUSTICE DARLING, MR. JUSTICE BRAY, MR. JUSTICE LAWRENCE, MR. JUSTICE SCRUTTON, and MR. JUSTICE AVORY.) (Times, April 17 and June 3, 1916.)-This appeal, by way of case stated from a decision of Justices of the Borough of Cambridge, raised a question of great; interest, both to the public generally and to the owners of dairy farms.Mr. Disturnal, K.C., and Mr. Aggs appeared for the appellant ; and Mr. Ricardo appeared for the respondent. An information was preferred by Ernest Richardson, the respondent, under the Statute 38 and 39 Vic., c. 63,section 6, against John Hunt, the appellant, for that on September 9, 1915, at the Borough of Cambridge, he did unlawfully sell to the prejudice of the purchaser, one David Cox, a certain article of food-to wit, milk-of which a sample was taken by the respondent as an Inspector under the Food and Drugs Acts at the place' of delivery in the course of delivery to the purchaser and con- signed in pursuance of a contract of sale to such purchaser, which said milk was deficient in milk fat to the extent of 9 per cent., and was not of the nature, substance, and quality demanded.The information was heard on October 13, 1915, and the appellant was convicted and was fined 40s. and costs. THE FACTS PROVED OR ADMITTED. At the hearing the following facts were proved or admitted : 1. The appellant was a farmer and cowkeeper living on a farm three miles from Cambridge. He had kept cows there for twenty-five years, and it was his practice to sell all his milk to retail dealers.2. On September 9, 1915, he had a herd of forty-one good Shorthorn cows, of which twenty-eight were then giving milk. The cows were under the charge of three men, all of whom were competent and experienced in the management and milking of cows. These men milked the cows, and no one else interfered with the milk in any way at any time before the sale to the respondent.The cows were milked into pails, and the milk was poured from the paiIs into another pail, from which it was strained into churns. When the quantity of milk ordered by each customer had been poured into the churn intended for that customer, all the churns were put into a cart and driven into Cambridge by one of tha appellant's men and delivered to the customers.3. The cows were milked twice daily, at 5 a.m. and 1 p.m.LAW REPORT 225 4. Nothing was added to or abstracted from the milk by the appellant or his servants beyond the abstraction of impurities by the straining, The morning milking was done rather hurriedly. Beyond the mixing required €or making up the quantity needed in each churn, there was no general mixing of all the morning milk.5 . I n consequence of the heavy rains in the previous July and August, the growth of grass on the appellant’s farm on September 9 was 6tphenomenal in quantity,” but it was in a watery condition, and the appellant’s cows being fed on it had given a much larger quantity of milk than usual. The cows were given 3 lbs.of cake each per day throughout this season of the year, which was the usual allowance in normal circumstances, and no special steps were taken to counteract the effect on the quality of the milk of the watery state of the herbage or to test by technical means the effect of the watery herbage on the milk. 6. The appellant and his men were well aware of what was taking place, and in spite of this shortly before September 9 the cows were given green maize, which was even more watery, in order to keep up the quantity of milk.7. The quality of milk is affected by the quantity, and also by the state of health of the animal, the method of milking and the manner of feeding, and the time that elapses between successive milkings. If cows are not thoroughly milked out on any occasion the quality of the milk at that particular milking is poorer.8. One of the appellant’s customers in Cambridge was a retail dealer named Cox. On September 9 the appellanb’s man drove a churn to Cox’s premises and was there met by the respondent, who informed him that he was an inspector, and intended to take a sample of the milk then in course of delivery. The respondent then stirred up the milk in the churn and took a pint of milk, which he divided into three parts, one part of which he had analysed.9. The analyst certified that the milk was deficient in milk fat to the extent of 9 per cent. 10. The respondent had taken samples of the appellant’s milk before and had found them genuine. 11. Milk taken from a healthy herd and mixed should not show less than 3 per cent.of milk fat. 12. Under the Sale of Milk Regulations, 1901, issued by the Board of Agri- culture, where a sample of milk contains less than 3 per cent. of milk fat it shall be presumed for the purposes of the Sale of Food and Drugs Act, until the contrary is proved, that the milk is not genuine by reason of the abstraction therefrom of milk fat or the addition thereto of water.THE CONTENTIONS. For the respondent it was contended that new milk deficient in milk fat to the extent of 9 per cent. was an article of food which was not in accordance with the uature, substance, and quality demanded, and although the appellant had supplied it as it came from the cows he had not used proper care in regard to the abnormal conditions prevailing at the time in feeding the cows, but had endeavoured to get quantity without quality, and that, while the milk from a single cow might give less than 3 per cent. of milk fat, it was most improbable that the milk from a herd, if properly mixed, would do so.226 LAW REPORT For the appellant it was contended that the milk was genuine milk as it came from the cows; that the cows had been properly milked; that morning milk was poorer in quality than afternoon milk; that the condition of this milk, which was morning milk, was due to the abnormal condition of the pastures; that even if the appellant had fed the cows in a particular way so as to obtain a large quantity of milk that was no offence provided that he showed that the milk was supplied as it came from the cow, and that it was not of such poor quality as not to be legal milk at all, and that a mere deficiency of 9 per cent.of milk fat did not warrant the justices in finding that this particular milk was not in fact milk. The justices were of opinion that the milk was deficient in fat to the amount of 9 per cent., but that the milk was as it had come from the cow6 without abstraction or addition. They found that the deficiency in milk fat was due to the manner in which the appellant had fed his cows with the object of obtaining a very large supply of milk without regard to quality, and they held, therefore, that the milk was not of the nature, substance, and quality demanded.They therefore held that the offence was proved. The section did not consider the intent with which an act was done ; intention or mens rea had nothing to do with it.The regulation of the Board of Agriculture did not lay down that there must always be 3 per cent. of fat ; it merely said that if there was less than that percentage the onus of showing that there had been no adulteration was on the vendor. Smithies w. Bridge ([1902] 2 K.B., 13 ; 18 The Times LawReports, 575) was not reconcilable with Wolfenden ZI.McCulloch (92 L.T., 857 ; 21 The Times Law Reports, 411), and was wrong. The point had been considered in Scotland in Scott v. Jack (49 S.L.R, 989). Mr. DISTURNAL submitted that the conviction was wrong. THE TEST TO BE APPLIED. Mr. RICARDO submitted that the conviction was right. This was not genuine milk; and even if it was genuine that was not the test.The test was whether there had been a sale to the prejudice of the purchaser of an article not of the nature, substance, or quality demanded. Quality had been discussed in Anness v. Grivell ([1915J 3 K.B., 685). Mr. Ricardo then discussed sections 3 to 9 of the Act, and submitted that the vendor could have protected himself by giving notice.The defence that the article was in the condition in which nature produced it was not one of the defences allowed by the provisos to section 6. Knowledge was not an ingredient of the offence. Sandys w. Small (3 Q.B.D., 449) dealt with what was to the prejudice of the purchaser. He referred also to Hoyle w. Hitchrnan (4 Q.B.D., 233); Pearks v. Ward ([1902] 2 K.B., 1; 18 The Times Lam Reports, 538); Webb w.Knight (2 Q.B.D., 530). Whether an article was of the nature, substance, and quality demanded was a question of fact for the justices. The regulation of the Board of Agriculture merely regulated the procedure on a prosecution; it did not repeal section 6. Thismilk was not up to the quality which the purchaser was entitled to expect under a contract to supply new milk, The contract of the purchaser was for 59 gallons of Mr. DISTURNAL replied.REVIEWS 227 new milk each morning, and that implied, he admitted, that the milk was to be of commercial quality.But there was nothing to fix the standard except the regulation of the Board, which evidently contemplated that there might be genuine milk with less than 3 per cent, Judgment was delivered on June 3 in this case. The Court was now divided, three of their Lordships being in favour of allowing the appeal, while two-Mr. Justice Bray and Mr. Justice Scrutton-thought that the caBe should be remitted to the justices. By a majority, therefore, the appeal was allowed, and the conviction was quashed. The judgments were of great length, and are recorded in full in The Times Law Reports of June 9, 1916, pp. 560-569. Published at The Times Office, Printing House Square, London, E.C. Price 9d. Solicitors.-Messrs. Torr and Co., for Mr. Algernon Lyon, Cambridge ; Mr. J. E. Whitehead, Cambridge. Each member of the Court had put his judgment into writing. . F . f . + + . f t