THE SOLICITOR. 895 



under section 10 of the act Nnthout the burdensome restriction 

 imposed by the decision of the circuit court of appeals in the grape- 

 juice case. 



The Supreme Court also dismissed the petition for a writ of certio- 

 rari in the case of Warner-Jenkinson Co. v. the United States (Supreme 

 Court, No. 812, October term, 1911, unreported), by which it was 

 sought to review a judgment of the circuit court of appeals for the 

 fifth circuit afih-mmg a decree of condemnation and forfeiture by the 

 District Court for the Western District of Texas, in the case of United- 

 States V. 1 Barrel of Vanilla Extract, N. J. 1166. 



The circuit court of appeals for the second circuit, in the case of 

 Steinhardt Bros. Co. v. The United States (191 Fed. Kep., 798, Ofhce 

 of Solicitor, Circular 57), in affirming the judgment of conviction by 

 the Circuit Court for the Southern Circuit of New York (N. J., 501) 

 for violation of section 2 of the act in sliipping interstate a quantity 

 of alleged Damiana Nerve Invigorator, wmch was misbranded, held 

 that the guaranty contemplated by section 9 of the food and drugs 

 act, to afford protection to the party maldng an interstate shipment 

 of the adulterated or misbranded article, must have been given prior 

 to such sliipment. In this case the court also ruled, in effect, that 

 where there is controversy as to whether an article alleged to be 

 misbranded is a food or a drug A\-ithin the definition in the act and 

 said article is described both ways in separate counts of the informa- 

 tiou charging the offense, the Government is not required to elect on 

 whicli of the two counts to try the defendant. 



'i'his same court, in Von Bremen et al. v. The United States (192 

 Fed. Rep., 904), reversed the conviction of the defendant by the 

 Circuit Court for the Southern District of New York, for shipping 

 interstate a quantity of salad oil alleged to be adulterated and 

 misbranded because the same was not olive oil. The appellate 

 court held that the trial court committed reversible error in the case 

 by refusing to permit the defendants at the trial to introduce testi- 

 mony from dealers as to the meaning of the term "salad oil" in the 

 trade. The case of Brina v. The United States (179 Fed. Kep.), 

 decided by this same court, wherein it was held that "salad oil" 

 prima facie meant olive oil, is distinguished by the court in the later 

 opinion. 



Tlie circuit court of appeals for the tldrd circuit, in the case of The 

 United States v. 443 Cans of Frozen Egg (H. J. Keith Co. claimant) 

 (193 Fed. Rep., 589; Notices of Judgment 1027 and 1576) reversed 

 the decree of the District (^ourt of New Jersey dismissing the libel 

 fded by the Government against a quantity of frozen egg alleged to 

 be fUthy and decomposed. Tliis case was vigorously contested by 

 claimants, both at the trial and upon appeal, and a great volume of 

 expert testimony was submitted both l)y tiie Government and the 

 claimant upon the issue of adulteration. The appellate court held 

 that the tests of tlie product made by the Government's experts, 

 which were testified to at the time of the trial, establislied the decom- 

 position of the product and directed a decree of condemnation and 

 forfeiture to be entered by the lower court against the product. 

 The court in its opinion announced a guiding principle in the determi- 

 nation of whether an article is adulterated within the meaning of the 

 act by reason of decomposition, namely, that where a product is so 

 near decomposition that exact chemical and thermal precautions 



