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High court of justice
~o~,
~904j
Law Reports
LAW HIGH
95
REPORTS.
COURT OF JUSTICE. KING'S BENCH DIVISION. July 13th, 1904.
BEFORE LORD ALVERSTONE, L.C.J., KENNEDY AND PHILLIMORE, J J . MORRIS V. BEAL,
Factory and Worshop Act, 1901. Underground Bakehouse--Structural Alterations--Covenant to pay outgoings--Jurisdiction of Magistrate-Lease nearly expired. A magistrate has no jurisdiction to make an order under Sub-section 8 o/ Section 101 of the Factory and Workshop Act, 1901, requiring the owner to pay part of the structural alterations in order to obtain a certificate to use the premises as an underground bakehouse if the tenant has covenanted to pay all outgoings, and this is so independently of the date of the lease and the length of the term. This was a case stated by a metropolitan magistrate upon the hearing of a complaint by the tenant under Section 101, Sub-section (8) of the Factory and Workshop Act, 1901. The magistrate had ordered that the owner should pay £70 in respect of a sum of £133 17s. 6d. paid by the tenant to carry out certain structural alterations required in order to obtain a certificate to use the leased premises as an underground bakehouse. The lease was for a term of twenty-one years from December 25th; 1885. I t contained a covenant by the lessee to pay " all existing and future taxes, rates, assessments and outgoings, whether parliamentary, parochial, or otherwise, for the time being payable either by the landlord or tenant in respect of the said premises except landlord's property tax." I t was sought to distinguish this case from Goldstein v. Hollingsworth (Public Health, vol. xvi, p. 54) on the ground that the lease was for a longer period and had nearly expired. Barnard Lailey appeared for the appellant; Danckwerts, K.C., and Hutton for the respondents. The court allowed the appeal, holding that this case was covered by Goldstein v. Hollingsworth (supra), and that a magistrate had no jurisdiction under the above sub-section (8) to determine what is just and equitable in cases where there is in the lease an express covenant by the tenant to pay all outgoings. The covenant must bd construed without regard to the date at which it was entered into. BELFAST COUNTY COURT September 23rd, 190~. BEFORE THE RECOI~DER OF BELFAST.
Sate of Food and Drugs Act, 1875, Section 6. Ginger Wine--Addition of Salicylic Acid. The addition of Salicylic Acid to Ginger Wine in order to preserve it was held to be an adulteration, as the acid was not required ]or the production thereof. This was an appeal against the decision of the magistrates at the Belfast Petty Sessions imposing a fine of 20s. for selling ginger wine containing
96
Law
Reports
[rubn~ ~ealth
7"2 gr. per pint of salicylic acid. The prosecution had been instituted by the inspector, and was brought under Section 6 of the Food and Drugs Act, which prescribed a penalty for the adulteration of all}, article of food, unless the ingredient used was not iniurious to health, and was required for the production or preparation of the said food as an article of commerce. I t was contended that ginger wine was known for upwards of a century, and that salicylic acid was quite a modern preparation, and could not, therefore, be essential to the manufacture of the drink; that the larger manufacturers did not use it at all, and that it was injurious. For the defence it was alleged tha~ alcohol or some similar ingredient was necessary to prevent refermentation in the wine, and that in the quantities used it was not injurious. Mr. Barldie, City Analyst, proved that there were 7"2 gr. of salicylic acid per pint and 12"2 per cent of alcohol, which latter would have been quite sufficient to preserve it ; he said he had given evidence in a similar case in the County Tyrone, where 8"2 gr. per pint had been found, and that the case had been dismissed. Dr. Henry O'Neill, a member of the consulting stag of the Royal Victoria Hospital, said he had been twenty-seven years practising medicine and surgery, and before that had had practical experience of the manufacture, use, and sale of ginger wine. He read out formutm for its preparation published in Muspratt's Dictionary o] Chemistry, 1860, and also in the Chemist and Druggist of 1890 by Peter MacEwan. I t contained 5 to 12 per cent of alcohol produced by fermentation during its manufacture, and this was a sufficient preservative. Salicylic acid was a dangerous drug, with a definite dosage and well-known physiological action. Dr. O'Neill described in detail its preparation and its action, and said he considered it especially dangerous when given in any quantity to persons suffering from inflammation of the heart, liver, or kidneys, and that it was not necessary to add any preservative to ginger wine, which naturally contained as much alcohol as claret, porter, or ale, or even more. Dr. Stanley B. Coates and Dr. Torrens (Belfast) both agreed with Dr. O'Neill. For the appetlant's case, Mr. Charles Huxtable said he was a pharmaceutical and analytical chemist of London, and had experience of the manufacture of ginger wine for the last four years; it was absolutely necessary to have a preservative for ginger wine; in the proportion of 7"2 gr. pet"pint salicylic a d d would be quite harmless, and tess than this quantity was not effective as a preservative; ginger wine would not produce 16 to 20 per cent of alcohol in fermentation; proof spirit was added; that would not be sufficient as a preservative. Counsel for the prosecution quoted the evidence of Dr. E. H. Starling in the report of the Royal Commission on Food and Drugs, 1901, that salicylic acid had the tendency of preventing the action of the gastric juices and retarding digestion ; but witness said he had carried out experiments on himself, and found no such effect upon his digestive organs as had been suggested. Sir William Whitta, M.D., Professor of Materia Medica, Queen's College, Belfast, said the pharmacopcdal dose of salicylic acid was 5 gr. to 20 gr., but. it was not unusual to give up to 120 gr. in a day. Anyone taking 120 gr. of salicylic acid through the wine into his system would also have to take half a stone of sugar ; he did not believe that in small doses there was a particle of evidence to show that it did harm. He believed the statements continually made in books about salicylic add and its effects upon the heart and kidneys arose at the time when it was impossible to get the drug pure ; the heart depression was produced by the impurities
~rowmb~r, t9oat
Lavz Reports
97
and not by the drug ; with the present methods of purification, the cardiac depression was not found even when enormous doses were given. He thought salicylic acid preferable as a preservative to alcohol. He had heard that it was being introduced into tight beer, claret, and other light wines ; but did not think that if a man took a couple of bottles of beer, a bottle of cider, and a bottle of claret he would absorb 30 gr. of the acid ; and that if he did, he thought it would do him less harm than the alcohol. Barthellot, Dr. J. S, Cameron, Professor Corfield, Dr. E. H. Starling, Dr. McLagan, and Sir T. Stevenson, were all quoted to show that the drug was considered dangerous as a constituent of food, but witness maintained his opinion that small doses of the drug were quite harmless ; he would not say that there would be a temptation to use an impure acid if it were cheaper. Dr. A. Montgomery (Belfast) gave corroborative evidence. The ,REOORDER,in giving his decision, said that the question resolved itself into whether the drug was necessary, or whether there was any doubt as to whether it was injurious ; because if not necessary it should not be introduced ; and if injurious it should not be introduced. Ginger wine had existed long before the drug was introduced into it. Was the wine better than it used to be ? Having been existent so long without the drug, he could not see how the drug was necessary, and, if not required, it appeared to him that it ought not to be introduced into the wine. He therefore confirmed the decision of the magistrates in imposing the free.
UNSOUND MEAT PROSECUTIONs.--At the meeting of the Association of Municipal Corporations, on October 19th, the Town Clerk of Liverpool called attention to certain amendments of Section 116 of the Public Health Act, 1875, proposed by the National Federation of Meat Traders in an interview with the President of the Local Government Board, one of the objects of which was to shift from the owner or trader the onus at present imposed on him of proving that the meat in respect of which a prosecution was instituted was not intended for human food, and to place the burden of proof on the local authority or prosecuting inspector. I t was agreed that the matter be referred to the council for consideration, and, if deemed expedient, that they should take action in opposition to the suggested amendment of the law. WATER SUPPLIES IN KO~EA.--The special correspondent of the Morning Post, in describing the difficulties encountered by tim Japanese army, refers to the dangerous condition of the water. He describes it thus: " All round us was rushing water, but according to those who kno~: this country, there was not a drop to drink unless one would court dysentery, typhoid and other complaints. In no part of the world is the water supply more generally polluted than it is in Korea, and it is dangerous to drink of it even when it is seen babbling, deliciously cold and limpid, down the sandy stream beds. Indeed, here the most pelltlcid and innocent-looking rivulets are often the most treacherous. The water pollution is due to the peculiar method of fertilizing the land employed by the people, so that all water that has passed through cultivated ground is contaminated. Even if one takes the precaution only to drink of streams that flow down the hillsides above the cultivation, one is not safe, for the Koreans bur)" all their dead on the high ground. The results of these customs in a fully cultivated and rather densely-inhabited country m a y be ima~ned.
~904j
Law Reports
LAW HIGH
95
REPORTS.
COURT OF JUSTICE. KING'S BENCH DIVISION. July 13th, 1904.
BEFORE LORD ALVERSTONE, L.C.J., KENNEDY AND PHILLIMORE, J J . MORRIS V. BEAL,
Factory and Worshop Act, 1901. Underground Bakehouse--Structural Alterations--Covenant to pay outgoings--Jurisdiction of Magistrate-Lease nearly expired. A magistrate has no jurisdiction to make an order under Sub-section 8 o/ Section 101 of the Factory and Workshop Act, 1901, requiring the owner to pay part of the structural alterations in order to obtain a certificate to use the premises as an underground bakehouse if the tenant has covenanted to pay all outgoings, and this is so independently of the date of the lease and the length of the term. This was a case stated by a metropolitan magistrate upon the hearing of a complaint by the tenant under Section 101, Sub-section (8) of the Factory and Workshop Act, 1901. The magistrate had ordered that the owner should pay £70 in respect of a sum of £133 17s. 6d. paid by the tenant to carry out certain structural alterations required in order to obtain a certificate to use the leased premises as an underground bakehouse. The lease was for a term of twenty-one years from December 25th; 1885. I t contained a covenant by the lessee to pay " all existing and future taxes, rates, assessments and outgoings, whether parliamentary, parochial, or otherwise, for the time being payable either by the landlord or tenant in respect of the said premises except landlord's property tax." I t was sought to distinguish this case from Goldstein v. Hollingsworth (Public Health, vol. xvi, p. 54) on the ground that the lease was for a longer period and had nearly expired. Barnard Lailey appeared for the appellant; Danckwerts, K.C., and Hutton for the respondents. The court allowed the appeal, holding that this case was covered by Goldstein v. Hollingsworth (supra), and that a magistrate had no jurisdiction under the above sub-section (8) to determine what is just and equitable in cases where there is in the lease an express covenant by the tenant to pay all outgoings. The covenant must bd construed without regard to the date at which it was entered into. BELFAST COUNTY COURT September 23rd, 190~. BEFORE THE RECOI~DER OF BELFAST.
Sate of Food and Drugs Act, 1875, Section 6. Ginger Wine--Addition of Salicylic Acid. The addition of Salicylic Acid to Ginger Wine in order to preserve it was held to be an adulteration, as the acid was not required ]or the production thereof. This was an appeal against the decision of the magistrates at the Belfast Petty Sessions imposing a fine of 20s. for selling ginger wine containing
96
Law
Reports
[rubn~ ~ealth
7"2 gr. per pint of salicylic acid. The prosecution had been instituted by the inspector, and was brought under Section 6 of the Food and Drugs Act, which prescribed a penalty for the adulteration of all}, article of food, unless the ingredient used was not iniurious to health, and was required for the production or preparation of the said food as an article of commerce. I t was contended that ginger wine was known for upwards of a century, and that salicylic acid was quite a modern preparation, and could not, therefore, be essential to the manufacture of the drink; that the larger manufacturers did not use it at all, and that it was injurious. For the defence it was alleged tha~ alcohol or some similar ingredient was necessary to prevent refermentation in the wine, and that in the quantities used it was not injurious. Mr. Barldie, City Analyst, proved that there were 7"2 gr. of salicylic acid per pint and 12"2 per cent of alcohol, which latter would have been quite sufficient to preserve it ; he said he had given evidence in a similar case in the County Tyrone, where 8"2 gr. per pint had been found, and that the case had been dismissed. Dr. Henry O'Neill, a member of the consulting stag of the Royal Victoria Hospital, said he had been twenty-seven years practising medicine and surgery, and before that had had practical experience of the manufacture, use, and sale of ginger wine. He read out formutm for its preparation published in Muspratt's Dictionary o] Chemistry, 1860, and also in the Chemist and Druggist of 1890 by Peter MacEwan. I t contained 5 to 12 per cent of alcohol produced by fermentation during its manufacture, and this was a sufficient preservative. Salicylic acid was a dangerous drug, with a definite dosage and well-known physiological action. Dr. O'Neill described in detail its preparation and its action, and said he considered it especially dangerous when given in any quantity to persons suffering from inflammation of the heart, liver, or kidneys, and that it was not necessary to add any preservative to ginger wine, which naturally contained as much alcohol as claret, porter, or ale, or even more. Dr. Stanley B. Coates and Dr. Torrens (Belfast) both agreed with Dr. O'Neill. For the appetlant's case, Mr. Charles Huxtable said he was a pharmaceutical and analytical chemist of London, and had experience of the manufacture of ginger wine for the last four years; it was absolutely necessary to have a preservative for ginger wine; in the proportion of 7"2 gr. pet"pint salicylic a d d would be quite harmless, and tess than this quantity was not effective as a preservative; ginger wine would not produce 16 to 20 per cent of alcohol in fermentation; proof spirit was added; that would not be sufficient as a preservative. Counsel for the prosecution quoted the evidence of Dr. E. H. Starling in the report of the Royal Commission on Food and Drugs, 1901, that salicylic acid had the tendency of preventing the action of the gastric juices and retarding digestion ; but witness said he had carried out experiments on himself, and found no such effect upon his digestive organs as had been suggested. Sir William Whitta, M.D., Professor of Materia Medica, Queen's College, Belfast, said the pharmacopcdal dose of salicylic acid was 5 gr. to 20 gr., but. it was not unusual to give up to 120 gr. in a day. Anyone taking 120 gr. of salicylic acid through the wine into his system would also have to take half a stone of sugar ; he did not believe that in small doses there was a particle of evidence to show that it did harm. He believed the statements continually made in books about salicylic add and its effects upon the heart and kidneys arose at the time when it was impossible to get the drug pure ; the heart depression was produced by the impurities
~rowmb~r, t9oat
Lavz Reports
97
and not by the drug ; with the present methods of purification, the cardiac depression was not found even when enormous doses were given. He thought salicylic acid preferable as a preservative to alcohol. He had heard that it was being introduced into tight beer, claret, and other light wines ; but did not think that if a man took a couple of bottles of beer, a bottle of cider, and a bottle of claret he would absorb 30 gr. of the acid ; and that if he did, he thought it would do him less harm than the alcohol. Barthellot, Dr. J. S, Cameron, Professor Corfield, Dr. E. H. Starling, Dr. McLagan, and Sir T. Stevenson, were all quoted to show that the drug was considered dangerous as a constituent of food, but witness maintained his opinion that small doses of the drug were quite harmless ; he would not say that there would be a temptation to use an impure acid if it were cheaper. Dr. A. Montgomery (Belfast) gave corroborative evidence. The ,REOORDER,in giving his decision, said that the question resolved itself into whether the drug was necessary, or whether there was any doubt as to whether it was injurious ; because if not necessary it should not be introduced ; and if injurious it should not be introduced. Ginger wine had existed long before the drug was introduced into it. Was the wine better than it used to be ? Having been existent so long without the drug, he could not see how the drug was necessary, and, if not required, it appeared to him that it ought not to be introduced into the wine. He therefore confirmed the decision of the magistrates in imposing the free.
UNSOUND MEAT PROSECUTIONs.--At the meeting of the Association of Municipal Corporations, on October 19th, the Town Clerk of Liverpool called attention to certain amendments of Section 116 of the Public Health Act, 1875, proposed by the National Federation of Meat Traders in an interview with the President of the Local Government Board, one of the objects of which was to shift from the owner or trader the onus at present imposed on him of proving that the meat in respect of which a prosecution was instituted was not intended for human food, and to place the burden of proof on the local authority or prosecuting inspector. I t was agreed that the matter be referred to the council for consideration, and, if deemed expedient, that they should take action in opposition to the suggested amendment of the law. WATER SUPPLIES IN KO~EA.--The special correspondent of the Morning Post, in describing the difficulties encountered by tim Japanese army, refers to the dangerous condition of the water. He describes it thus: " All round us was rushing water, but according to those who kno~: this country, there was not a drop to drink unless one would court dysentery, typhoid and other complaints. In no part of the world is the water supply more generally polluted than it is in Korea, and it is dangerous to drink of it even when it is seen babbling, deliciously cold and limpid, down the sandy stream beds. Indeed, here the most pelltlcid and innocent-looking rivulets are often the most treacherous. The water pollution is due to the peculiar method of fertilizing the land employed by the people, so that all water that has passed through cultivated ground is contaminated. Even if one takes the precaution only to drink of streams that flow down the hillsides above the cultivation, one is not safe, for the Koreans bur)" all their dead on the high ground. The results of these customs in a fully cultivated and rather densely-inhabited country m a y be ima~ned.