Dairy Brand," and in smaller type: "This tin contains skimmed milk." The analysis of the contents of the tin showed a deficiency of 93 percent of butter fat; but though the purchaser's attention had not been called to the words on the label at the time of the sale, the court held that this was a sufficient "disclosure of the alteration" under this section. A tin of condensed milk was sold as "condensed skimmed milk," 97 percent of the original fat had been abstracted by the use of a separator. It was shown that not more than 63 percent could be abstracted by skimming. The court held that the description "skimmed milk” did not properly describe the alteration; and this decision was affirmed. The defendant was carrying a milk can in the street of a city, which, on inquiry, he told the purchaser contained new milk, and there were other milk cans in a cart driven by him, some of which he said contained old milk. The purchaser pointed to the can said to contain new milk, and said, "Let me have a pint out of this can." The defendant, after hesitating, said: "That can contains old milk," and then sold a pint of it, which, when examined, showed a result good enough for old milk, but not for new milk. The expression "old milk" was understood in that vicinity to mean milk which has stood for twelve hours, and from which cream has been removed. It was held that he was not guilty of a violation of the statute quoted at the beginning of this section." A milk dealer was on his rounds when he ran short of milk, and bought a further supply from a dairy

4 Jones v. Davis, 57 J. P. 808, 69 L. T. 497; Platt v. Tyler, 58 J. P. 71.

5 Petchey v. Taylor, 62 J. P. 360, 78 L. T. 501, 19 Cox C. C. 38.

"It seems somewhat difficult to reconcile this case with Jones v. Davis, supra, in which the facts were very similar, but Wills, J., in his judgment pointed out that in Jones v. Davis no evidence was given to show how much cream

can be abstracted by skimming, and consequently the point upon which the magistrate decided the latter case was never taken." Bell's Sale of Food and Drugs Act (5th Ed.) 42. See Commonwealth v. Hufnal, 4 Pa. Super. Ct. 301, 40 W. N. C. 360, post.

6 Kirk v. Coates, 16 Q. B. Div. 49, 50 J. P. 148, 55 L. J. M. C. 182, 54 L. T. 178, 34 W. R. 295.

He

man. An inspector asked him for some "sweet milk." was going to supply him from what was left of his own milk, but the inspector insisted. upon being supplied from the can containing the purchased milk. He told the inspector before purchase that it was not his own milk, and warned him that it might or might not prove to be sweet milk. The milk turned out to be adulterated or skimmed milk. It was held that no offense had been committed. If a false representation is in fact made at the time of the sale concerning the milk, an offense is committed, even though the purchaser must have known from the price paid that the representation was false. Thus a milkman sold a pint of milk for a penny as new milk, though in fact it was skimmed milk. It was insisted that the purchaser, who well knew the price of milk, must have known from the price that the milk was not new, and that, therefore, no offense had been committed. But the court held that the milkman had violated the statute quoted at the beginning of this section. Where a statute prohibited the sale of adulterated or impure milk, a sale of "separator skimmed milk" in cans marked simply "skimmed milk," the former product having more of the butter fats removed than the latter, is a violation of such statute.9 A section of a statute prohibited the manufacture or sale of condensed or preserved milk unless manufactured from pure and unadulterated milk, from which no part of the cream had been taken, unless the proportion of milk solids should be equivalent to a certain percentage of milk solids in crude milk. Another section provided that milk from which a part of the cream had been taken should be deemed adulterated and unwholesome, but forbade a construction of these two sections so as to prohibit the sale of pure skimmed milk when labeled and sold as such, or the addition of sugar to

7 Frew V. (J. C.) 51, 3 Adams 339, 38 Sc. L. R. 555. See Sandys v. Jackson, 69 J. P. 171, 92 L. T. 646, 3 L. G. R. 285.

Gunning, 3 Fraser

PURE FOOD-42.

8 Heywood v. Whitehead, 76 L. T. 781.

9 Commonwealth v. Hufnal, 4 Pa. Super. Ct. 301, 40 W. N. C. 360. But see Petchey v. Taylor, supra.

11

the manufacture of condensed milk, and two other sections prescribed the standard for pure milk and a penalty for the violation of the statute. It was held that the primary purpose of the first section was not to prevent fraud, but to prohibit the sale of articles deemed unhealthful by the Legislature, and that the sale of "condensed skimmed milk," an article made from milk from which the cream had been taken, and containing little or no butter fat, was prohibited by the statute, and the fact that such article was unknown or not manufactured when the statute was enacted was immaterial.10 Under a statute making it an offense to sell adulterated milk and under another statute declaring skimmed milk with less than six percent of cream to be adulterated, selling skimmed milk does not constitute the offense of selling adulterated milk, unless it contains less than six percent of cream. Under a statute forbidding the sale of milk to which water or any foreign substance has been added," a person may be convicted who sells skimmed milk colored by adding to it annatto.12 Where adulterated milk was defined as milk from which any part of the cream had been removed; and a milk dealer sold milk in cans after having removed from them about two quarts of cream and then filling them with milk from other cans from which the same quantity of cream had been taken, it was held that he was liable to the penalty of the statute, though the milk in other respects complied with the requirements of the law and was in fact wholesome.13 Where the experts agree that the milk in question was below the standard, part claiming it was skimmed milk, and part insisting it was merely watered, the jury must determine whether the milk was watered or skimmed.14 Where the charge was that the defendant

sold adulterated milk containing less than the requisite milk solids, kept, in fact and sold from a can marked "Skimmed Milk," it was held that evidence that the milk was so sold was a good defense, and that the defendant could not be convicted by proof that the milk was watered.15

§ 535. Condensed, Separated or Skimmed Milk.

An English statute requires "Every tin or other receptacle containing condensed, separated or skimmed milk" to bear a label on which the words "Machine-skimmed Milk' or "Skimmed Milk" are printed. In construing this statute it was held that the words "condensed, separated or skimmed milk" meant condensed separated milk or condensed skimmed milk;" and that the statute did not apply to ordinary separated or skimmed milk.1

§ 536. Buttermilk.

There is very little to be said on the subject of buttermilk. We make the following quotation from an English work: "Buttermilk, which is largely used as an article of diet in some parts of the kingdom, also varies greatly in composition, because a certain amount of water has often to be added to the milk in the process of butter making in order to facilitate the separation of the butter fat, and this quan

15 Commonwealth v. Tobias, 141 Mass. 129, 6 N. E. 217.

The United States Department of Agriculture has established a standard for skim milk at "not less than nine and twenty-five onehundredths percent of milk solids;" but courts can not take judicial knowledge of such standard. St. Louis v. Kruempeler (Mo.), 139 S. W. 446; St. Louis V. Niehaus (Mo.), 139 S. W. 450.

An ordinance establishing a

standard for skim milk in total solids, butter fat, specific gravity, freedom from foreign additions of

any kind, and any evidence of decomposition, and which is transported and delivered at a temperature providing for sweet milk, is not in conflict with another ordinance prohibiting persons from having in possession with intent to sell any adulterated milk, and defining additional means of adulteration. St. Louis v. Niehaus (Mo.), 139 S. W. 450; St. Louis v. Meyer (Mo.), 139 S. W. 439.

1 French v. Card, 73 J. P. 389, 101 L. T. 428. See also Reiter v. State, 109 Md. 235, 71 Atl. 975.

tity varies with the temperature of the air at the time of butter making. But an addition of more than 25 percent of water ought to be regarded as fraudulent, and even 25 percent ought only to be necessary under quite exceptional circumstances."" Where a milk dealer was prosecuted for selling butter milk adulterated with 30 percent of added water, and it was proven that the adition of some water was necessary in the process of the manufacture of butter, but that the quantity varied, and depended for the most part upon the state of the temperature, it was held that he was not guilty of the charge of selling adulterated buttermilk under a statute making it an offense to sell an article to the prejudice of the purchaser, the statute especially excusing the dealer "where the food or drug is unavoidably mixed with some extraneous matter in the process of collection or preparation."2

§ 537. Analysis of Milk-Certificate-Evidence.

Statutes frequently provide for an analysis of milk and require a certain method to be pursued in order to ascertain the constituent parts of milk under consideration. Thus in one instance the ordinance forbade exposure for sale of any milk unless it showed on analysis not less than three percent by weight of butter fat, estimated by the Adams paper coil process; and the ordinance was held valid. Where the statute designates the officer who is to make the analysis, his analysis is not conclusive, upon the accused; for if it at tempted to make his analysis conclusive, it would be unconstitutional. In all such instances the accused has a right to show by analysis or other evidence that the milk alleged to be insufficient under the statute was in fact sufficient. In

1 Bell's Sale of Food and Drugs Act 242.

2 Warnock v. Johnstone, 8 Rettie (J. C.) 55, 4 Coup. 509.

1 St. Louis v. Bippen, 201 Mo. 528, 100 S. W. 1048, 1049.

2 Shivers v. Newton, 45 N. J. L.

8 Hewitt v. Taylor [1896], 1 Q. B. 287, 60 J. P. 311, 65 L. J. M. C. 68, 74 L. T. 51, 44 W. R. 431, 18 Cox C. C. 226; Fyfe v. Cochrane, 3 Adam 357, 38 Sc. L. R. 801.