awarded by the Court, or shall give such other security by deposit of money or otherwise as the justice may allow. The seven days' notice of intention to prosecute the appeal required by sect. 24, sub-sect. 5 of the Petty Sessions Act is not necessary [R. (McGrath) v. Wicklow JJ. supra].

Notice. The notice must be given within seven days after the cause of appeal has arisen, i.e. within seven days after the date when conviction is pronounced. The seven days are counted excluding the day upon which the conviction was pronounced. The notice must be served upon the Court as well as on the prosecutor.

A notice of appeal addressed to each of the convicting justices by name, but served only on the clerk of Petty Sessions, is properly served [R. (Clarke) v. Wicklow JJ. (1892), 30 L. R. I. 465]. The notice is valid if served on the justices, though addressed only to their clerk [R. v. Essex JJ. (1892), Í Q.B. 490].

If the "other party is represented by a solicitor, service on such solicitor is not good service [R. v. Oxfordshire JJ. (1893), 2 Q.B. 149]. Where, however, a notice is served on the solicitor for the opposite party, who makes no objection, and who appears at the hearing of the appeal on behalf of the respondent, and objects to the service, it was held that there was a presumption that the solicitor was authorised to accept service, and that the appeal should have been heard [R. (Campbell) v. Donegal JJ. (1890), 24 I. L. T. R. 47].

The notice of appeal may be signed by appellant's solicitor [R. v. Kent JJ. (1873), L. R. 8 Q.B. 305] The notice can be served by ordinary post. The service shall be deemed to have been effected at the time at which the letter would be delivered in the ordinary course of post (Licensing Act, 1872, s. 70). Form of notice is given in the Appendix, p. 541. The grounds must be stated. General terms will suffice.

Recognisance. The appellant must enter into a recognisance to prosecute the appeal "immediately" after the notice.

"Immediately."-In R. v. Berkshire JJ. (1878), 4 Q.B.D. 469, Cockburn, C.J., said it was impossible to lay down any hard and fast rule as to the meaning of the word "immediately" in all cases. "The words 'forthwith' and 'immediately' have the same meaning. They are stronger than the expression within reasonable time,' and imply prompt and vigorous action without any delay."

The deposit in lieu of recognisance should not be fixed before notice of appeal has been served [R. v. Anglesey JJ. (1892), 2 Q.B. 29]. The justice before whom the recognisance is entered need not be one of the convicting justices; it may be that a justice from an adjoining county could do it [R. v. Durham JJ. (1895), 1 Q.B. 801].

On appeal.-The Court before whom the appeal comes may confirm, modify, or reverse the decision of the justices, or may remit the matter to them with the opinion of the Court of Appeal thereon; the Court may also make such order as to costs to be paid by either party as it thinks just (Licensing Act, 1872, s. 52, ss. 5). Sect. 21 of the Licensing Act 1874, makes the order of the justices directing the offence to be recorded

open to review by the Quarter Sessions, in the same way as the rest of the order.

Mandamus.-By appealing, an appellant waives his right to a mandamus [R. v. Newcastle-on-Tyne JJ. (1887), 54 J. P. 244].

Certiorari.-Certiorari does not lie while the appeal is pending [R. v. Sparrow (1788), 2 T. R. 196 n.].

Finally, in the words of Andrews, J. [ex parte Clarke (1890), 26 L. R. I.], "No justice who has taken part in the hearing of a case in which there is an appeal ought, during the appeal, either to go or remain on the bench, or converse or communicate with any member of the appellate Court at all."

Downing.

In the Law Reports (Ireland), 1909, 2 I. R., at page 696, there is Rowan v. reported the case of Rowan v. Downing. It arose under sect. 2 of the Intoxicating Liquors (Ireland) Act, 1906, which provides inter alia, that "where any business other than the sale of intoxicating liquors is carried on in the licensed premises, the whole of such premises shall be closed at the hours aforesaid, unless the portion of the same in which such sale of liquors is carried on is structurally separated from the remainder of the building."

It was decided by a majority of the Court (Dodd, J., Wright, J., Madden, J., and Johnson, J.), that the words "hours aforesaid " in the foregoing provision are not restricted to closing hours on Saturday nights, but mean prohibited hours generally.

Lord O'Brien, L.C.J., the Lord Chief Baron, and Mr. Justice Andrews dissented from this judgment.

The question was asked on a case stated by the magistrates at Timoleague Petty Sessions, who stated that they thought the law was not quite clear. In this view they were apparently quite correct.

In all cases, but more especially in licensing cases, magistrates should always lay heed to the well-known remarks of the wise Lord Halsbury in Quinn v. Leathem (A. C. 1901, 506):

66

There are two observations of a general character which I wish to make, and one is to repeat what I have very often said before, that every judgment must be read as applicable to the particular facts proved or assumed to be proved, since the generality of the expressions which may be found there are not intended to be exposition of the whole law; but governed and qualified by the particular facts of the case in which such expressions are to be found. The other is, that a case is only an authority for what it actually decides. I entirely deny that it can be quoted for a proposition that may seem logically to follow from it. Such a mode of reasoning assumes that the law is necessarily a logical code, whereas every lawyer must acknowledge that the law is not always logical at all."

Few things are more futile than incessant searching for imaginary analogies between one case and another-few things more futile than a text-book, which should really be very much akin to a legal Bradshaw and equally subject to alterations. Magistrates will act wisely, if they cautiously consider the section of the Act under which they are adjudicating; and, having decided carefully, see to it that the orders they draw up shall be immune from certiorari.

CHAPTER VII.

FOOD AND DRUGS ACTS.

THE Acts on this subject are: the Sale of Food and Drugs Act, 1875; the Sale of Food and Drugs Amendment Act, 1879; the Margarine Act, 1887; the Sale of Food and Drugs Act, 1899; the Butter and Margarine Act, 1907 (7 Edw. VII. c. 21, s. 14). These may be referred. to collectively as the Sale of Food and Drugs Acts, 1875-1907.

Definition of food. For the purpose of the Food and Drugs Acts, the expression "food" shall include every article used for food or drink by man, other than drugs or water; and any article which ordinarily enters into or is used in the composition or preparation of human food, and shall also include flavouring matters and condiments (Food and Drugs Act, 1899, s. 26).

Mixing injurious ingredients with food.-No person shall mix, colour, stain, or powder, or order or permit any other person to mix, colour, or stain, or powder, any article of food with any ingredient or material, so as to render the article injurious to health, with intent that the same may be sold in that state. Penalty, not exceeding £50 for first offence; very offence after conviction for first offence shall be a misdemeanour for which person on conviction shall be imprisoned for a period not exceeding six months, with hard labour (Food and Drugs Act, 1875, s. 3).

Selling same. No person shall sell any such article, so mixed, coloured, stained, or powdered. Penalty, as in preceding clause (Food and Drugs Act, 1875, s. 3).

Article of food."-The time of sale is the moment when the test of its character is to be applied [James v. Jones (1894), 58 J. P. 230]. Chewinggum labelled "Cloves for chewing only, and not to be eaten," is not food (Short v. Smith, 59 J. P. 213).

Article injurious to health. The ingredient added must be such as to render the article of food, as sold, injurious to health, but it is not necessary that the analyst's certificate should state this (Hull v. Horsnell, 68 J. P. 591). An offence may be committed when the article is harmless to adults, but injurious to children and invalids (Cullen v. McNair, 72 J. P. 376). It is a misdemeanour at common law, knowingly to give any person food injurious to eat, whether from malice or a desire of gain (R. v. MacKarty, 2 East, P. C. 823).

MIXING INJURIOUS INGREDIENTS WITH DRUGS.-No person shall, except for the purpose of compounding as hereinafter described, mix, colour, stain, or powder, or order, or permit any other person to mix, colour, stain, or powder, any drug, with any ingredient or material, so as to affect injuriously the quality or potency of such drug with intent

that the same may be sold in that state. Penalty, as in preceding section for first and subsequent offence (Food and Drugs Act, 1875, s. 4).

Selling same. No person shall sell any such drug so mixed, coloured, stained, or powdered. Penalty, as in preceding clause (Food and Drugs Act, 1875, s. 4).

Drug.-" Drug" includes medicine for external or internal use.

Exemption on proof of absence of knowledge.-No person shall be liable to be convicted under either of the two last foregoing sections of this Act, in respect of the sale of any article of food, or of any drug, if he shows, to the satisfaction of the Court or justices before whom he is charged, that he did not know of the article of food or drug sold by him being so mixed, coloured, stained, or powdered, as in either of those sections mentioned, and that he could not with reasonable diligence have obtained that knowledge (Food and Drugs Act, 1875, s. 5).

Selling food or drugs to prejudice of purchaser.-No person shall sell, to the prejudice of the purchaser, any article of food or any drug which is not of the nature, substance, and quality of the article demanded by such purchaser. Penalty, not exceeding £20. Second offence-Fine not exceeding £50. Subsequent offence-Fine not exceeding £100 (Food and Drugs Act, 1879, s. 17).

On an appeal from a conviction by justices under sect. 6 of the Food and Drugs Act, 1875, for selling linseed cake meal containing 30 per cent. of added farinaceous matter, it was contended for the defence that linseed cake meal, being the residual of linseed meal after the extraction of oil, was not a drug within the definition of sect. 2 of the Food. and Drugs Act, but was subject solely to the provisions of the Fertilisers and Feeding Stuffs Act, 1893, under which a prosecution, if any, should have been brought :-Held, that linseed cake meal, though usually sold in large quantities as a cattle food, might be considered a drug when sold in small quantities for medicinal use. The conviction was affirmed [Belfast Corporation (M‘Master) v. May, 30 I. L. T. 184].

Person. A servant who sells on behalf of his master is liable to be convicted, but is entitled to the same protection (Food and Drugs Act, 1899, s. 20, 4) as his master would have been entitled to, if he had no reason to believe the article was other than that demanded. B., a seller of milk, proved that his servant, without his knowledge, added 15 per cent. of water, and contended that his servant, who was found shouting "new milk," and selling it from his milk truck, was the only person who could be convicted. It was held, that the justices were right in holding that B. was liable to the penalty as the seller, notwithstanding B.'s ignorance of the servant's misconduct, but that evidence might have been admitted with a view to mitigate the penalty (Brown v. Foot, 56 J. P. 581). “Person" includes a limited company [Pearks & Co. v. Ward (1902), 2 K.B. 1].

"To the prejudice."-The offence consists in fraudulently handing to the buyer something to his prejudice; pecuniary prejudice is not absolutely essential (Hoyle v. Hitchman, 4 Q.B.D. 233).

Cockburn, C.J., says that the true construction of the statute is that where the seller professes to sell a particular article, and sells one altered by admixture, he must be taken to have done that "to the prejudice of the customer, unless it has been brought, or must be taken to have been brought, to the knowledge of the customer; but if the fact that the article was mixed is brought, or must be taken to have been brought, to the knowledge of the customer, and he chooses to deal on that footing, it can never be said that such a transaction should be interfered with [Sandys v. Small (1878), 3 Q.B.D. 449]. This case was followed in Pearkes & Co. v. Houghton (1902), 1 K.B. 889.

The "article demanded must be held to be the article meant by an ordinary purchaser to be obtained, not in any scientific definition. [Morton v. Green, 8th Court of Sessions Cases (4th Ser.), 36].

"Milk" was asked for. Skimmed milk, 60 per cent. deficient in butter fat, was supplied at twopence per pint. It was held that defendant had not committed an offence under this section, as skimmed milk satisfied the demand made (Lane v. Collins, 14 Q.B.D. 193).

In R. (Barry) v. Mahony (Divisional Magistrate), P., a retail dealer in milk, had been successfully prosecuted for selling adulterated milk, which she had innocently purchased from B., a wholesale dealer in milk. She then prosecuted B., giving in evidence the certificate of analysis which had been used in the prosecution against herself, but not any certificate of analysis made on her own behalf. No copy of any certificate was served on B. with the summons. It was held, on motion to make absolute conditional order for writ of certiorari, that the condition could not be sustained. [Guardians of Enniskillen Union v. Hilliard (14 L. R. I. 214) and Connor v. Butler (1902), 2 Ir. R. followed.]

It may be noted here that the Department of Agriculture and Technical Instruction for Ireland have issued the following regulation, dated 23rd April, 1902 :—

"Where the proportion of water in a sample of butter exceeds 16 per cent., it shall be presumed for the purpose of the Sale of Food and Drugs Acts, 1875 to 1899, until the contrary is proved, that the butter is not genuine by reason of the excessive amount of water therein."

On this point see, also, Smyth v. Justices of Adare, 31 I. L. T. 439.

In a prosecution under sect. 6 of the Sale of Food and Drugs Act. the sergeant buying the milk simply asked the seller for a certain quantity of that milk. He got the milk, and paid for it, and when the contract had been completed, asked the vendor was it new milk-Held, that as the sale had been completed before any question was asked by the purchaser, the defendant was not liable (Hobcroft v. Buckley, 31 I. L. T. 345).

Where a defendant sells sweet milk to a purchaser which on analysis by the public analyst is found to contain a lower percentage of milk-fat than that which is fixed by regulations of the Department of Agriculture and Technical Instruction, the onus of proof must be satisfied by the defendant showing that the milk is genuine by reason of there having been no abstraction therefrom of milk-fat or addition thereto of water (Reynolds v. Magowan, 37 I. L. T. R. 16).

An offence is not committed by false representation of the nature and quality of an article made before sale, if the real nature of the article