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LIBEL Continued.
Where sugar alleged to have been adulterated and misbranded was
not seized while in transportation, it was not subject to forfeiture
under the clause of section 10 of the act, declaring that any arti-
cle of food adulterated or misbranded, which is being transported
from one State, etc., to another, for sale, shall be liable to seizure,
condemnation, etc. United States v. 46 Packages and Bags of
Sugar_-_-

A drug is not adulterated or misbranded so as to be subject to con-
demnation under section 10 of the act unless adulterated or mis-
branded at the time of seizure, and hence, where asafoetida below
the prescribed test and misbranded was received by claimants in
interstate commerce and tested and correctly branded before seiz-
ure, it was not subject to forfeiture. United States v. Five Boxes
of Asafoetida__---

United States v. Nine Boxes of Asafoetida___. Shipments of a drug preparation in bulk to the owner from its manufacturing agent in another State held not subject to seizure and forfeiture under section 10 of the act, where before being offered for sale by the owner and consignee the preparation was bottled and properly labeled. United States v. 65 Casks Liquid Extracts-Affirmed, United States v. Knowlton Danderine Co...-The remedy in rem provided by section 10 of the act may be invoked where adulterated eggs have been shipped into a State, not for sale as eggs, but intended solely for use by the consignee in the bakery business. United States v. 50 Cans of Preserved Whole Eggs

Affirmed, Hipolite Egg Co. v. United States_
Section 10 of the act, authorizing proceedings to forfeit adulter-
ated food transported from one State to another, is applicable to
eggs shipped from one State to another, not for sale as eggs,
but to be used solely as raw material in the manufacture of some
other product. United States v. Two Barrels of Desiccated Eggs__
Where adulterated vinegar was proceeded against under section 10
of the act, and it appeared that it had been the subject of inter-
state commerce and was seized while stored in the original un-
broken packages, it was not material that the evidence did not
show that the vinegar had been shipped in interstate commerce
for sale in such original unbroken packages. United States v. 100
Barrels of Vinegar---

Under the Fourth Amendment of the Constitution, libels for for-
feiture of goods for adulteration or misbranding under section 10
of the act, should be supported by affidavit made by someone
cognizant of the facts showing probable cause. United States
v. 8 Packages and Casks of Drugs--
Want of sufficient verification of a libel to forfeit food under section
10 of the act is not ground for exception or demurrer to the sub-
stance of the libel. Admiralty rule 1 provides that libels shall be
verified except those filed on behalf of the United States. United
States v. Two Barrels of Desiccated Eggs--

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In forfeiture proceedings under section 10 of the act, providing that the proceeding in such cases "shall conform as near as may be to the proceedings in admiralty", the court may order the issue of monitions and attachments on informations which are wholly unsupported by oath or affirmation, in view of admiralty rule 22 and sections 1-3 of the act, since the Fourth Amendment to the Constitution does not apply. United States v. 18 Cases of Tuna Fish__ 1162 Where a libel for seizure and condemnation of certain cases of canned tomatoes upon the ground of adulteration and misbranding, was signed and filed by the district attorney, and the only affidavit attached thereto stated that the affiant "is an inspector of the Department of Agriculture, and that he has read the foregoing libel, and that the averments contained therein as to his own knowledge are true, except as to those matters and things stated to be of his information and belief, and as to those matters and 167546-36-93

LIBEL Continued.

things he verily believes them to be true"; held that there was
such a lack of correlation between the affidavit and the libel that
the court could not tell what averments in the latter were made
upon affiant's knowledge and what upon his information and be-
lief, and that there was therefore a lack of that certainty of
allegation required in a libel for seizure of private property.
United States v. 154 Cases of Tomatoes‒‒‒‒

A libel charging adulteration of a food product simply in the words
of the act, that it "consists of a filthy. decomposed, or putrid
animal and vegetable substance", held sufficient in this respect in
law. It is often difficult to differentiate an ultimate fact from a
conclusion of law. An offense consists in the commission of an
act and ordinarily would not be sufficiently pleaded in the words
of the statute defining the offense without the addition of a state-
ment of the act which is charged to constitute the offense. Here,
however, the act is the adulteration which is charged, and the
words of the statute are as descriptive of what the adulteration
consists of as any added description could be. If there be no
information in the libel of the specific act of adulteration meant
to be charged, this can be supplied, if need be, through a bill of
particulars. United States v. 94 Dozen, More or Less, Half-Gallon
Bottles of Capon Springs Water__

Averments in a libel charging misbranding of drugs under section 8 of the act, as amended by act August 23, 1912, should receive a sensible construction. They must definitely charge the statutory offense of misbranding, but if there is enough to apprise those interested in the goods of the charge that the drugs were misbranded because statements as to curative power accompanying the articles in interstate commerce were false and fraudulent as stating they would cure diseases which they could not cure, and were made with intent to deceive, they are sufficient to sustain the libel. Seven Cases of Eckman's Alterative v. United States____

A libel in a proceeding to condemn bottled water, based on the
amendment of 1912 to section 8 of the act, which, after quoting
from the label a long list of ailments for which the water was
said to be beneficial, with "healing powers" and a "reliable
remedy", denied that the water could produce the therapeutic
effects so claimed, stated a case under the statute, and was not
subject to demurrer or motion to quash. Goodwin et al. v. United
States----

A libel seeking to condemn cases of "Buffalo Lithia Water" as mis-
branded, which states in effect that the water is misbranded,
labeled, and sold as lithia water, when in fact it is not lithia
water, and by reason of such misbranding the public is deceived
and misled, is sufficiently explicit without characterizing the water
as a spring or mineral water. Goode v. United States__
A libel for forfeiture of frozen eggs was not defective for failure
to negative that the eggs might have been intended for other
than food uses, where it described the eggs as articles of food.
United States v. 300 Cans of Frozen Eggs__.
It was not ground for the dismissal of a libel to forfeit adulterated
and misbranded vinegar which had been the subject of interstate
commerce and was seized while stored in the original unbroken
packages, that it did not appear that the vinegar was shipped for
sale in the original unbroken packages. United States v. 100
Barrels of Vinegar.

The allegation in a libel that an article of food is adulterated in
violation of the act for the reason that it consists in whole or in
part of a filthy, decomposed, or putrid vegetable substance, states
a complete and distinct offense under section 7 of the act, and
the further allegation that such article was "unfit for food" may
be regarded as surplusage. Even in an indictment such surplus
language is not fatal. United States v. 275 Cases Tomato Catsup__
A libel for forfeiture of alleged adulterated and misbranded sugar
under the provision of section 10 of the act providing that any
article of food that is adulterated or misbranded. having been

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LIBEL Continued.

transported from one State to another and remaining unloaded, unsold, or in the original unbroken packages, shall be liable to be proceeded against by libel for condemnation, held fatally defective for failure to charge that the sugar seized had been transported for sale. United States v. 46 Packages and Bags of Sugar-A libel for forfeiture of packages of drugs as misbranded under the act, on the ground that the drugs, having been transported from one State to another, remain unloaded, unsold, or in the original unbroken packages, held insufficient for failure to show the drugs subject to the act. United States v. 8 Packages and Casks of Drugs___

It was not ground for dismissal of a libel against certain cans of adulterated eggs that they had been shipped into a State, not for sale as eggs, but intended for use of the consignee in the bakery business. United States v. 50 Cans of Preserved Whole Eggs

Affirmed, Hipolite Egg Co. v. United States--
It was not ground for the dismissal of a libel to forfeit a shipment
of dessicated eggs for violation of the act that the libel did not
allege that the eggs had been transported for sale. United States
v. Two Barrels of Dessicated Eggs---.
Where a libel alleges that certain frozen eggs had been transported
in interstate commerce and were, at the time of the service of the
libel, in whole or in part filthy, putrid, or decomposed, and re-
mained in original unbroken packages in a warehouse in New York
City, the libel was not fatally defective for failure to charge that
the eggs had been transported for sale. United States v. 300 Cans
of Frozen Eggs‒‒‒‒‒
A libel to forfeit a shipment of dessicated eggs for violation of the
act was not fatally defective for failure to allege the date when
they were shipped, on the theory that the shipment might have
been made before the act took effect or because the property was
not sufficiently identified; such objections being available by an-
swer. United States v. Two Barrels of Dessicated Eggs-----
A representation in a libel for seizure and condemnation of canned
tomatoes that the article as analyzed by the Department of Agri-
culture is shown to be adulterated in violation of the act in that
tomato pulp has been mixed and packed with and substituted in
part for the article, does not constitute an averment of the fact
of adulteration; and a representation in such libel that the article
as so analyzed is shown to be misbranded in violation of the act
in that the labels, containing the word "Tomatoes" and the picture
of a ripe tomato, are false and misleading and deceive and mis-
lead the purchaser, does not sufficiently charge misbranding. Such
libel held insufficient in that it does not contain allegations of
substantive facts clearly showing the right of the Government to
seize and condemn the goods. United States v. 154 Cases of
Tomatoes

Where a libel under the act, to condemn certain sirup as misbranded,
stated that the boxes and bottles did not contain a blend of maple
sirup, as stated on the labels, but alleged that the contents consisted
of a mixture or compound of refined cane sugar flavored with an ex-
tract of maple wood, the negation of a blend of maple sirup was a
conclusion of the pleader, which was not admitted by a demurrer
to the libel. United States v. 68 Cases of Sirup_.
It is essential that a libel to condemn food for misbranding should
set forth the branding and facts inconsistent therewith, and, if
there is indefiniteness in statement, it must be removed by proof.
Where a libel charging misbranding of catsup alleged that the label
stated the catsup was made from choice ripe tomatoes, etc., when
in fact it was made in part from tomato pulp screened from peel-
ings and cores as the offal of tomato-canning factories, and not
from choice ripe tomatoes, etc., it would not be assumed, from the
fact that the peelings and cores were not used in a tomato-canning
factory, that they were not suitable for making tomato catsup.
United States v. 650 Cases of Tomato Catsup---.

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A proceeding by libel under section 10 of the act, to condemn food as
adulterated is not a criminal prosecution, but an action in the
nature of a civil action, and the Government, in order to obtain a
verdict in its favor, is only required to sustain the allegations of
the libel by a fair preponderance of the evidence, and it is not
incumbent on it to show that they are true beyond a reasonable
doubt. United States v. 625 Sacks of Flour__

A proceeding under the act to condemn a shipment of food alleged to
be adulterated, is not a criminal prosecution, and the Government
is not required to establish its cause of action by evidence beyond
a reasonable doubt; the burden is on the Government to establish
each and every essential element of its case by a fair preponder-
ance of the evidence, and by evidence which is clear and
convincing. United States v. 1,367 Cases of Pork and Beans_---
A proceeding to condemn a food product under section 10 of the act
is a civil action, and, as such, is within the rule that the Govern-
ment's case is established by the preponderance of the evidence, as
distinguished from the rule in criminal cases where the doctrine
of presumption of innocence and the doctrine of reasonable doubt
control. United States v. 5,060 Cans of Tomato Pulp---.
A libel proceeding under section 10 of the act, to condemn food as
adulterated, is not a criminal prosecution, and the Government is
not required to make out its case by proof beyond a reasonable
doubt; it is only required to make out its case by a fair preponder-
ance of the evidence. United States v. 720 Cases of Tomato
Catsup

A proceeding under section 10 of the act, to condemn bottled water
as misbranded is not a criminal prosecution, and the Government
is not required to make out its case beyond a reasonable doubt; it
is sufficient to warrant a verdict for the Government if the evi-
dence establishes its contentions to the satisfaction of the jury.
United States v. 275 Cases of Mineral Water----
A libel proceeding under section 10 of the act, to condemn a food
product as adulterated and misbranded, is a civil suit and not a
criminal action, and to be tried as a civil suit. The burden is on
the Government to prove its contentions to the satisfaction of the
jury by a preponderance or greater weight of the evidence, and not
beyond a reasonable doubt as in criminal cases. United States v.
42 Cases of Creme de Menthe----

In libel proceedings under section 10 of the act to forfeit alleged
adulterated or misbranded food or drugs, the burden of proof is
upon the Government to establish its case by a preponderance of
the evidence. United States v. 175 Boxes of Macaroni___.

United States v. 539 Boxes and 322 Cartons of Wm. Radam's
Microbe Killer_

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United States v. 1,000 Cases of Canned Tomato Puree_.
United States v. 11 Gross Packages of Dr. Williams Pink Pills__
United States v. 408 Bushels of Oysters--

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United States v. 350 Bags of Shell Peanuts_.

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United States v. 60 Dozen Bottles of "A Texas Wonder".
United States v. 1,038 Cases of Tabasco Flavor Catsup__

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United States v. One Gross of Packages of “A Texas Wonder".
United States v. 9 Cases of Sparkling White Seal__.

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United States v. 3,192 Boxes of Apples and 532 Boxes of Pears_-
United States v. 3,998 Cases of Canned Tomatoes_-

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On trial of a libel under section 10 of the act, to condemn a food product as misbranded, held that the burden of proof upon all issues of the case was upon the Government to satisfy the jury by a preponderance, or fair preponderance, of the evidence. United States v. 175 Boxes of Macaroni___.

A proceeding to condemn a food product under section 10 of the act is a civil case, and the Government, in order to obtain a verdict,

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LIBEL-Continued.

must establish its case by a preponderance of the evidence to the reasonable satisfaction of the jury, and not beyond a reasonable doubt. United States v. 1,500 Cases of Tomato Pulp---In a libel proceeding under section 10 of the act, against an alleged misbranded food product, held that the measure of persuasion is, as in civil cases, a fair preponderance of the evidence, and that the burden is on the Government to prove by a fair preponderance of the evidence the material allegations set up in the libel which are denied in claimant's answer, and the burden is on the claimant to prove by a fair preponderance of the evidence the material allegations set out and alleged affirmatively in his answer and denied by the Government. United States v. 90 Boxes of Macaroni---In a proceeding under section 10 of the act, to condemn wine alleged to be adulterated and misbranded, held incumbent on the Government, in order to sustain a verdict in its favor, to establish the facts constituting the adulteration and misbranding by a fair preponderance of the evidence, to the satisfaction of the court. United States v. 60 Barrels of Wine-----

In a proceeding to condemn confectionery as adulterated because it contained talc, held that the burden was on the Government to establish by a fair preponderance of the evidence not only that the article contained talc, but that it contained an appreciable quantity thereof. United States v. 307 Cases of Confectionery---A forfeiture proceeding under section 10 of the act is not a criminal prosecution, but is a suit to enfore a penalty, and while the degree of proof required of the Government in order to prevail is not that required in criminal cases-proof beyond a reasonable doubt a higher degree of proof is required of the Government than a mere preponderance, a mere balance, of the evidence in its favor. The burden is on the Government to establish, by clear and satisfactory evidence, that its case has been made out. United States v. One Barrel of Desiccated Egg Product---

In a libel proceeding under section 10 of the act, to forfeit a food product alleged to be adulterated, held that the burden of proof rests upon the Government to establish the allegations of the libel by the weight of the evidence, and, as such proceeding involves the possible forfeiture of property, the evidence must be of a clear and convincing character. United States v. 443 Cans of Frozen Egg Product ___

In proceedings under section 10 of the act, for seizure and con-
demnation of bottled waters, as misbranded, held that the burden
of proof is upon the Government to establish the misbranding
charged by a preponderance of the evidence which is clear and
convincing. United States v. 36 Bottles of Crab Orchard Mineral
Water--

United States v. 22 Bottles of Crab Orchard Concentrated Min-
eral Water-

The proceeding for forfeiture of goods under section 10 of the act
is a penalty, and, while it is not a criminal proceeding, it is not
far removed in its nature from a criminal proceeding; therefore, a
higher degree of proof is required of the Government in such a
proceeding than would be required of it in an ordinary suit on an
obligation to the United States. It is not only required that there
should be a fair weight of evidence in favor of the Government,
but also that the Government should make out its case by evidence
that is of a higher quality evidence that is clear, convincing,
and satisfactory. United States v. 10 Barrels of Olives_.
United States v. 36 Bottles of London Dry Gin___

A proceeding under section 10 of the act, to forfeit a food as adul-
terated and misbranded is in no sense a criminal prosecution, and
the Government is not required, as in criminal cases, to prove
the essential elements of its case beyond a reasonable doubt; but
the rule is that in such cases, involving the possible forfeiture of
property, the Government must establish its cause of action by a
clear and satisfactory preponderance of the evidence. United
States v. 1,246 Cases of Tomato Catsup___

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