156 REPORT LAW REPORT. Boric Acid in Cream. Haigh w. Aerated Bread Company, Limited, (Before MR. JUSTICE RIDLEY, MR. JUSTICE BRAY and h h . JUSTICE AVORY.) (Times, April 6, 1916.)-The Court heard an appeal on a case stated by Mr. Mead, the magistrate sitting at Marlborough Street Police Court. On August 13, 1915, and November 19, 1915, an information was heard by the magistrate which was preferred by the appellant, an inspector under the Sale of Food and Drugs Acts, 1875 to 1907, against the Aerated Bread Company.The company was charged with having sold to him on June 28, 1915, cream mixed with 0.34 per cent. by weight of boric acid (H,BO,), equivalent to 23.8 grains of boric acid per pound of cream, so as to render this article of food injurious to health. The magistrate dismissed the information, and this was an appeal from his decision.The appellant asked for, and was served with, a shillingsworth of preservea cream. On analysis the cream was found to contain boric acid in the percentage stated above. The magistrate found that cream containing boric acid in any quantity was injurious to health, particularly to the health of children and adults who were invalids, and was harmful to persons suffering from kidney disease.He also found that preserved cream-that is, a mixture of cream and boric acid preservative-was sold as a well-known commodity. The appellant contended that the respondents had sold an article of iood mixed with an ingredient rendering it injurious to health, and had thereby eommitted an offence under Section 3 of the Sale of Food and Drugs Act, 1875, notwithstanding that the respondents had sold the cream as preserved cream.The respondents contended that the appellant had asked for preserved cream and had received it, and that as preserved cream was a mixed article of food there had been no mixing within the meaning of Section 3 of the Act of 1875. They referred to the case of Cullen v.McNair (24 The Times Law Reports, 692). The magistrate held that no offence had been committed, as the cream had beenREVIEWS 157 bought and sold as preserved cream, and that he was bound by Cullen w. McNair, and he dismissed the information. Mr. McCall, K.C., and Mr. D. C. Bartley appeared for the appellant; and Mr. W. E. Bousfield for the respondents. Mr.JUSTICE RIDLEY, in giving judgment, said that the magistrate had come to an erroneous decision in consequence of following what was a mere obiter dictum of Mr. Justice Darling in the case of Cullen v. McNair ( s z c ~ Y ~ ) . Under Section 3 of the Act, if it were shown that an article of food such as the cream had been mixed with an ingredient, so as to render it injurious to health, there must be a conviction on such a charge, unless the defence had established under Section 5 that the person liable to be convicted did not know of its being so mixed, and could not with reason- able diligence have obtained that knowledge.The magistrate had not distinguished Section 3 from Section 6. He ought to have convicted the respondents, and the cast? must go back to the magistrate with a direction to convict. Mr. JUSTICE BRAY and Mr. JUSTICE AVORY delivered judgments to the same effect. Solicitors, Uessrs. Allen and Son for the appellant ; Xessrs. Bristows, Cooke, and Carpmael for the respondents. B + E + 3 * 4