KNIGHT'S LOCAL GOVERNMENT REPORTS. bigh Court of Justice. KING'S BENCH DIVISION. DAWES v. WILKINSON. Adulteration-Spirits-Sale to prejudice of purchaser-Rum diluted by water to more than 25 degrees under proof- Notice that spirits sold are of “no guaranteed strength”—Sale of Food and Drugs Act, 1875 (38 & 89 Vict. c. 63), s. 6–Sale of Food and Drugs Act Amendment Act, 1879 (42 & 43 Vict. c. 80), s. 6. On proceedings under section 6 of the Sale of Food and Drugs Act, 1876, for selling spirits not of the nature, &c., demanded by the purchaser, it is no defence, when the spirits sold are below the standard laid down in section 6 of the Sale of Food and Drugs Act Amendment Act, 1879, to prove that warning had been given to purchasers by a notice that the spirits sold by the defendant are "not of any guaranteed strength"; for such a notice does not bring home to the mind of the purchaser that the spirits will or may be diluted below the standard. So held by the majority of the Court (Lord Alverstone C.J. and Sandys . Small (1878) 3 Q. B. D. 449; 47 L. J. M. C. 115; Case stated by justices for the county borough of Derby, who had 5. (a) The appellant is a licensed victualler, and keeps the "Green Man Inn," 32, Kensington Street, in the county borough of Derby. The respondent is the chief inspector of nuisances for the said county B 1906. Nov. 5. 1906. Dawes v. borough, duly appointed by the mayor, aldermen, and burgesses of the borough of Derby. (b) On April 25, 1906, one Stephen James Laver, an assistant inspector of nuisances for the said borough, acting on behalf of and on the instructions of the respondent, went to the appellant's inn and there asked to be supplied with one quartern of rum. The said rum was placed in a bottle by the appellant's wife without any label thereon, and the said Stephen James Laver then paid the sum of 7d. for such rum and took possession of the same. (c) At the time of the said purchase a notice in large print was hung up in the passage of the appellant's inn, between the serving window and the door of the entrance, in a conspicuous position. The said notice was produced in court, and was as follows: 'Notice. "All spirits sold in this establishment are of the same quality and strength as heretofore, but, in order to comply with the Food and Drugs Act, will not be of any guaranteed strength. Also all brandies sold here will be of the same superior quality, but not guaranteed to be solely derived from the juice of grapes. Issued by authority of the Derby and District Licensed Victuallers' Association." (d) The above notice was so hung and so printed as to be clearly visible to all persons going up the passage to the serving window, at which place the said Stephen James Laver purchased the said rum. (e) After the said purchase the respondent entered the inn and informed the appellant that the rum had been purchased for the purpose of analysis, and he divided the sample into three equal parts, and gave one portion to the defendant, sent one portion to the public analyst, and produced the third portion before us at the hearing. (f) The certificate of the public analyst, dated May 11, 1906, which was duly produced and proved before us, and which we held to be correct, was as follows (omitting immaterial parts) :-" I am of opinion that the said sample contained the parts as under, or the percentage of foreign ingredients as under : "Rum of 25 under proof as mentioned in section 6 ... ... ... 96'3 parts. 3'7 parts. 100'0" 6. On the part of the appellant it was contended, inter alia, that the sale was not to the prejudice of the purchaser inasmuch as the said notice was posted in a conspicuous position, and was clearly visible to the appellant's customers and to any purchaser of spirits, and that the appellant had taken sufficient steps to inform the said Stephen James 1906. Laver that the said rum was diluted, and that he had sold the said rum Dawes v. without any guarantee as to the strength thereof, and that no offence Wilkinson. had therefore been committed within the provisions of the Sale of Food and Drugs Acts. 7. On the part of the respondent it was contended, inter alia, that the said notice was not sufficient, inasmuch as the same did not contain the word "diluted" or a word or words to that effect, that the purchaser was not thereby notified that the rum was diluted, and that the rum was consequently not of the nature, substance, or quality demanded by him. 8. We were satisfied that the said notice was sufficiently and conspicuously posted, and that it was clearly visible to all intending purchasers, but we decided as a matter of law on the construction thereof that the wording of the notice was not sufficient, inasmuch as it did not use the word "diluted" or a word or words to that effect, and that the absence of such words was fatal to the contention of the appellant, and we therefore convicted and fined the appellant as above stated. 9. The only question upon which the opinion of the Court is desired is, whether we, the said justices, came to a correct determination and decision in point of law with respect to the meaning and effect of the said notice, and as to the contention of the respondent. If such decision was not correct, then the conviction is to be quashed, but if our decision was correct, then the conviction is to stand. Section 6 of the Sale of Food and Drugs Act Amendment Act, 1879 (42 & 43 Vict. c. 30), provides that In determining whether an offence has been committed under section 6 of the said Act [the Sale of Food and Drugs Act, 1875] by selling, to the prejudice of the purchaser, spirits not adulterated otherwise than by the admixture of water, it shall be a good defence to prove that such admixture has not reduced the spirit more than twenty-five degrees under proof for brandy, whisky, or rum, or thirty-five degrees under proof for gin. MCCARDIE for the appellant. The notice exposed in the appellant's public house was amply sufficient to give any purchaser of rum or spirits warning that their strength was not guaranteed. Prior to the Sale of Food and Drugs Act Amendment Act, 1879, there was no standard as to the strength of spirits, and in order to establish a standard section 6 of that Act was passed. In Gage v. Elsey (1883) 10 Q. B. D. 518; 52 L. J. M. C. 44, where the appellant could not avail himself of section 6 of the Act of 1879 because of the low standard of the gin he sold, it was held that, inasmuch as he had given warning to purchasers by a 1906. Dawes v. notice exposed in the premises that the spirits sold were diluted, the sale was not to the prejudice of the purchaser, and, therefore, there had been no offence against section 6 of Sale of Food and Drugs Act, 1875. Sandys v. Small (1878) 3 Q. B. D. 449; 47 L. J. M. C. 115, is to the same effect. So long as it is brought to the mind of the purchaser that he is not buying spirits of any particular strength, the sale is not to the purchaser's prejudice. Spirits can be adulterated otherwise than by water. There is no such thing as pure rum or whisky. The purchaser, with notice that the strength is not guaranteed, takes the risk of the spirits being more than 25 degrees below proof and cannot complain. It is submitted, therefore, that the notice protected the appellant in the present case, and that he was wrongly convicted. ETHERINGTON SMITH for the respondent. There is nothing in this notice to indicate to a purchaser that the rum sold by the appellant was more than 25 degrees below proof. If the publican waters spirits so as to reduce them below the standard strength, it is incumbent on him to bring that fact home to the mind of the purchaser ; and a notice stating merely that the spirits "will not be of any guaranteed strength" does not bring home to the mind of the purchaser that he is buying rum watered to the extent of nearly 4 per cent. below the minimum. The justices were right, and the conviction ought to be affirmed. MCCARDIE in reply. The words "no strength guaranteed" are as wide as they can possibly be, and certainly ought to afford a defence to a summons under section 6 of the Act of 1875. If the rum had been reduced 90 per cent. below proof it would still have been rum. The appellant has done all he can when he says he does not guarantee any strength at all. The word "dilute" is certainly an emphatic word, but its addition would not make the notice stronger than it is. DARLING J. Since I have the misfortune to disagree with the other members of the Court upon our judgment in this case I deliver my judgment first. The appellant was summoned for having sold to the prejudice of the purchaser a quartern of rum not of the nature, substance, and quality demanded, which is an offence against section 6 of the Sale of Food and Drugs Act, 1875. If it be brought home to the notice of the purchaser that what he bought was the subject of a notice stating that it was diluted, although that might not be a good defence under section 6 of the Sale of Food and Drugs Act Amendment Act, 1879, yet the appellant is not to be deprived of any defence he would have had under section 6 of the Sale of Food and Drugs Act, 1875. This was laid down in the case of Gage v. Elsey (1883) 10 Q. B. D. 518; 52 L. J. M. C. 44, by Manisty J., who expressly stated in his |