摘要:

THE ANALYST. 171 MILK OF INFERIOR QUALITY FROM A SINGLE COW. KING'S BENCH DIVISION. (Before the LORD CHIEF JUSTICE OF ENGLAND, Mr. JUSTICE DARLING, and Mr. JUSTICE CHANNELL. ) SMITHIES 2). BRIDGE. From the '' Thnes " of May 3, 1902. THIS was an appeal from the Chelmsford Quarter Sessions. The case raised an important question as to whether a person supplying milk exactly as it mine from a cow could be convicted of an offence against Section 6 of the Sale of Food and Drugs Act, 1875, if the milk was of inferior quality. The appellant, William Smithies, of Clacton-on-Sea, was convicted at Thorpe le Soken Petty Sessions, under Section 6 of the Sale of Food and Drugs Act, 1875, for selling to the respondent on August 15, 1901, to the prejudice of the purchaser, milk not of the nature, substance, and quality demanded, and he was fined $20.Smithies appealed to Quarter Sessions, when the following facts were proved: The respondent asked to be supplied with a pint of new milk, and on analysis it was found to contain only 2.09 per cent. of fat. The milk had not been tampered with or adulterated in any way, but was in the same condition as when it came from the cow. The small percentage of fat was caused by there being a long interval of sixteen hours between the morning milking, at which the milk in question was drawn from the cow, and the previous milking. The owner of the cows had been told by veterinary surgeons that this system of milking, while it increased the quantity of milk at the morning milking, caused it to be deficient in fat, as the latter became absorbed.The cows were not the property of the appellant, but of Rilr. Thomas Lilly, from whom the appellant purchased the milk under a guarantee, but the appellant did not rely upon this guarantee as a defence. The justices at the Quarter Sessions were of opinion that there had been no adulteration of or abstraction from the milk, but that, nevertheless, the offence charged had been proved. They confirmed the convic- tion, and reduced the fine to 21. Mr. WARBURTON, for the appellant, said that as this was milk exactly as it came from the cow, it was pure milk, although of inferior quality, and therefore the appellant could not be convicted-" Hoyle w. Hitchman " (4 Q.B.D., 233) and " Morgan w. Auger " (L. J. Newsp. for April 26, 1902, p.228). Mr. C. E. JONES, for the respondent, submitted that it was a question of fact for the justices-" Hewitt w. Taylor" (1896, 1 Q.B., 287), " Dyke v. Gower " (1892, 1 Q.B., 220). He referred to the Sale of Milk Regulations, 1901, made by the Board of Agriculture, after the date of the alleged offence, prescribing that where milk contained less than 3 per cent. of fat it should be presumed till the contrary was proved that it was not genuine. Mr. JUSTICE CHANNELL, in giving judgment, said that the court were not agreed as to the result, but he was not sure that there was any large difference between them as to the principles in question. I t was material to recollect that the prosecution was under Section 6, under which it had been clearly decided that there was no question of guilty knowledge or fraudulent intent.The question merely was whether the person charged had sold something different from, and inferior to, the thing demanded by the purchaser. The case of " Goulder w. Rook " (1901, 2 K.B., 290) brought out these propositions. That was a case of beer, which was a manufactured article, but in the case of a natural product, such as milk, the same principles were applicable. If a person asked for new milk and got something which was not that which he would expect to get as new milk, the offence had been committed. If in ordinary cases the person charged was able to prove that what he had sold as milk was the identical thing, without adulteration and without manipulation, that came from the cow, then, unless there was something further, he The following facts appeared from the case stated.172 THE ANALYST.clearly proved that the substance sold was milk. If the man did not know, and made inquiries and discovered that the cow had some illness, that would confirm the analysis, and go to show that the thing sold was not of the nature, substance, and quality of the article demanded. He had sold something which was the direct product of the cow, but in the case his Lordship was putting it was a cow which was not producing milk, but another liquid, and on those facts the seller, though perfectly innocent, ought to be convicted under this section. One had to apply those principles to the present case. The view of the magistrates was that there was no reason for suspecting any mistake in the analysis, and that it showed that there was a smaller quantity of fat than even the poorest kind of milk contained, and that, by reason of the cow being milked at unusual times, the substance that came from the cow was not a substance that could properly be called milk.That seemed to him to be a question of fact, and if it was not milk, it was not of the nature, substance, and quality demanded. It was not for the court to interfere with a conclusion of fact. This might be a hard case, but, if they did not lay down a rule such as he had done, it might do mischief in other cases. The purohaser asked for new milk, and he got milk exactly as it came from the cow. What he got was undoubtedly new, and the question was whether it was milk. I n ordinary language it was milk, and it was exactly in the condition in which the cow gave it.If a man asked for milk, he meant cow’s milk, but not the milk of a diseased cow. Seeing that it was food, he must be understood to demand milk fit for human consumption. If it was not milk, what was i t ? Some cows gave richer milk than others ; and, there being no standard, the appellant supplied what he was perfectly entitled to describe as milk. If this was only a case of milk, he should not trouble to differ from the other judges, but he feared that the decision might be applied to some other natural product as to which there was no standard-e.g., apples from an apple-tree which was sending the malic acid into its roots, although in so preposterous a case his brother might be able to distinguish it.I t was a principle capable of dangerous application to say that a man could be convicted where, without any element of fraud, he sold a natural product in the state in which it was produced. The LORD CHIEF JUSTICE said that he could not distinguish in this case between Lilly and the appellant. The magistrates had dealt with it as a question of fact, and, if there was evidence on which they could come to the decision they did, the court ought not to overrule it. For the reasons given by his brother Darling, he came to the conclusion that it was not possible to distinguish between the appellant and Lilly ; and the only question was whether there was evidence that the article sold was not of the nature, substance, and quality demanded. The milk was deficient in 30 per cent.of the fat proper to genuine milk. If there had been evidence that the milk came direct from the cow, and no evidence of an abnormal condition of things, it would have been wrong to convict. But in this case it was found that the condition of the milk was due to the way in which the cows had been milked-Le., there had been an abnormal interval of sixteen hours. The magistrates had found that it was so deficient in fat that it could not fairly be described as milk. He did not say that he would have come to the same conclusion, but it was impossible to say that there was no evidence that it was not ordinary new milk. He did not wish to say that there was any arbitrary standasd. The order of the Board of Agriculture did not establish a standard for what was or was not genuine, but onlyp+ facie evidence. It could still be proved by the defendant that the milk was genuine. If it turned out that the article produced was the result of an abnormal condition of things, whether from disease or from abnormal treatment, there was evidence on which the justices might find that the article was not of the nature, substance, and quality demanded. The purchaser, when he asked for new milk, was entitled to have an article which was not other than ordinary new milk by reason of any special way in which the cows had been treated. The appeal was accordingly dismissed, but without costs. Mr. JUSTICE DARLING said that he was very sorry that he did not agree.

ISSN:0003-2654    

DOI:10.1039/AN9022700171

出版商:RSC    

年代:1902

数据来源: RSC