THE SOLICITOR. 803 



Two cases were pending on appeal before the Supreme Court at the 

 close of the year, as follows : 



United States v. Johnson (177 Fed., 313; Notice of Judgment No. 266). 



Johnson shipped in interstate commerce a so-called "mild combination treatment 

 for cancer," consisting of several packages, containing thereon certain statements or 

 representations that the product would effect a cure of cancer. Misbranding was 

 alleged in the indictment on the ground that these statements were false and mis- 

 leading statements regarding the article, because it was useless and ineffective for the 

 pretended purpose. Defendant's motion to quash was sustained, the court holding 

 that inquiry under the food and drugs act to determine whether a drug is misbranded 

 can not be extended to the question whether the product is effective or worthless 

 to accomplish the purpose represented on its label. The case is pending on appeal 

 taken under the provisions of the criminal appeals act of March 2, 1907. 



HiPOLiTE Egg Company v. United States (U. S. v. 50 Cans of Preserved Egg, 



Notice of Judgment No. 508.) 



Fifty cans of preserved whole egg were seized in the possession of Thomas & Clarke, 

 Peoria, 111., and condemnation and forfeiture of the product was sought for the reason 

 that it contained an added deleterious ingredient, to wit, boric acid, which might 

 render it injurious to health. Thomas & Clarke appeared specially, claiming to be 

 the owners of the product, and denied and relinquished all its right and title therein 

 to the Hipolite Egg Company. In its answer the Hipolite Egg Company denied 

 that the product contained boric acid, that boric acid was a deleterious ingredient 

 and rendered the eggs deleterious to health, and that the eggs were transported and 

 offered for sale in \'iolation of the law. The issues thus raised were determined 

 against the claimant and a decree was entered in favor of the United States. The 

 court made a special finding of facts, stating among other facts, that the eggs were 

 purchased by Thomas & Clarke and stored in a warehouse in their name at St. Louis, 

 and that subsequently Thomas & Clarke sent a written order on the warehouse to the 

 Hipolite Egg Company for the eggs to be delivered to the Hipolite Egg Company for 

 shipment to Thomas & Clarke, and the eggs were thereupon procured by the Hipolite 

 Egg Company and delivered to a common carrier for shipment to Thomas & Clarke, 

 at Feoria. The storage charges and freight were paid by Thomas & Clarke. The 

 Hipolite Egg Company appealed from the decree to the Supreme Court, where the 

 case is now pending on both appeal and writ of error. Claimant asserts that the trial 

 court was without jurisdiction in the premises, because the eggs in question were 

 not shipped in interstate commerce for sale, and because the eggs had been delivered 

 to Thomas & Clarke before seizure was effected and were not intended to be sold 

 by them. The question whether the court had jurisdiction to assess costs against 

 the Hipolite Egg Company is also presented in the appeal. (For judgment of the 

 trial court, see Notice of Judgment No. 508.) 



Two cases were pending at the close of the year before the circuit 

 court of appeals for the fifth circuit on appeals taken by the claim- 

 ants from judgments rendered in favor of the United States, as follows : 



R. G. Charles v. United States (United States v. 2,000 Cases op Canned 

 Tomatoes, Notice of Judgment No. 555). 



Libel was filed against 2,000 cases of canned tomatoes labeled "No. 3 perfection 

 brand tomatoes," alleged to be adulterated and misbranded for the reason that the 

 cans contained filthy, decomposed, or putrid substances, and a poisonous ingredient, 

 salts of tin, which might render the product injurious to health. A decree was 

 rendered condemning a portion of the canned tomatoes as adulterated as alleged, 

 and directing the marshal to separate the good from bad, destroy the bad cans, and 

 deliver the good cans to the claimant. The costs of the proceedings were taxed 

 against the claimant. To this decree the claimant excepted and perfected his appeal 

 within the prescribed period. 



Warner«Jenkin80N Company v. United States. 



Seizure was effected, under section 10 of the act, of one barrel of an article of food 

 bearing no label or brand, but which was represented, sold, and invoiced as "All 

 bean vanilla." Adulteration and misbranding was alleged, for the reason that a 



