OFFICE OF THE SOLICITOR. 593 



the substance recomiiiencled was Avater and not a drug; that such a 

 construction would nullify the act of Congress. 



It was further held that in a suit to condemn mineral water evi- 

 dence tending to show its shipment in interstate commerce under a 

 label stating that it was recommended for certain diseases, analysis 

 of the water and the absence oL' any medicinal ingredients ha\ing 

 curative or alleviative properties in the treatment of such diseases, 

 and the claimant's position respecting the article, made a question for 

 the jury as to whether tlie claims on the labels were true, and if false, 

 whether they were made knowingly and fraudulently. 



It was further held that the refusal or granting of a motion for a 

 new trial is in the discretion of the trial judge and can not ))e re- 

 viewed on writ of error or appeal. 



In the case of the IT. S. v. 2 Cans of Oil of Sweet Birch and 3 

 Cans of Oil of Gaultheria (F. & D. 11651, N. J. 7691), a seizure pro- 

 ceeding instituted in the southern district of New York. Judge Hand, 

 in denying claimant's motion for the release of the product under 

 bond, held that in his opinion the release of the articles was discre- 

 tionary with the court ; that the language of the act making provision 

 for the release of articles seized was not mandatory but clearly permis- 

 sive; and that he regarded the application for the release of the goods 

 as addressed wholly to his discretion, and he declined to exercise it in 

 favor of the claimant under the existing circumstances, which showed 

 that the misbranding was fraudulent and injurious to competition in 

 the trade. 



In the case of the United States v. Antonio Scaduto. trading as 

 Scaduto & Co. (F. & D. 10298, N. J. 7708), involving the shipment 

 of two different brands of oil. the defendant contended with regard 

 to both brands that his labeling as to the net contents of the cans, 

 based on the trade custom of 7^ pounds of cottonseed oil to the gal- 

 lon, was true. The court instructed the jury that it was not a ques- 

 tion of the intention of the defendant, but was a question of what, 

 in view of all the facts, was the truth; that the defendant had no 

 right, whether he Avas innocent of purpose or not, under the food 

 and drugs act, to make an incorrect representation as to the contents 

 of his can. 



With regard to the brand of oil, which w\as labeled, among other 

 things, " Cotton Seed Oil Slightly flavored with Olive Oil," in incon- 

 spicuous type, but which also bore the words "Termini Imerese" 

 and a re])resentation of natives gathering and packing olives, the 

 court instructed the jury that the question for them to determine, 

 based on business experience and common sense, was. What would 

 the person, the purchaser, a member of the public getting that kind 

 of a can, upon such examination as they would be likely to give it, 

 say about it? The court further reminded tlie jury of the query of 

 the Government as to " What could have been the object of putting 

 this tree and the 'Termini Imerese' on?" and stated to them that 

 there was no proof tliat any cottonseed oil ever came from that part 

 of the world, in Sicily, and put to them the inquiry, " What would 

 it mean except that this was olive oil? " The court furtlier emj^ha- 

 sized that the questi(m for the jury was whether the statement as 

 to the contents of the can was correct, and whether tlie picture and 

 descrij)tive words on the other can. indicating or not indicating, as 



