OF SUITS IN ENFORCEMENT OF PENAL ORDINANCES.-In Sherman et al. v. Gilbert, 118 N. E. 254, decided by Supreme Judicial Court of Massachusetts, an exception claimed to the principle that equity will not restrain prosecution for infraction of a penal ordinance is considered.

In this case six merchants applied for injunction to enjoin the chief of police of a city against threatened prosecution under a statute prohibiting hawking and peddling. The bill claimed that plaintiffs were merchants carrying on business in other cities of the state and occasionally they had need of rooms in hotels of defendant's city for the display of samples of merchandise, whereby they effected the taking of orders for future delivery of goods, and they were threatened with prosecution under the statute against hawking and peddling; that this way of doing business was not a violation of such statute. They ask for determination of such question and injunction pendente lite. There was demurrer, which the Supreme Judicial Court sustains and orders dismissal of the suit.

The court refers to exceptions to the rule above stated, saying they exist where void or unconstitutional statutes or local ordinances are relied on in prosecutions and property rights would be injured irreparably.

The court said: "The jurisdiction in chancery thus recognized and exercised rests upon the fundamental and well-established equitable doctrine that private personal and property rights will be protected by injunction from threatened irreparable unlawful injury. The injunction against the institution of criminal proceedings is simply incidental to that main ground of equitable jurisdiction."

As to multiplicity of suits being avoided it was stated that this is taken into consideration along with the circumstance that there was no relief by appeal, and where as to a single complainant there has been "arbitrary, oppressive and revengeful conduct amounting to a settled malicious purpose to cause irreparable damage." But it is said that: "A possibility that complaints may be lodged against six persons is not enough under these circumstances to make out a case of multiplicity," and "the allegations as to repeated complaints are not sufficient to warrant the inference that the courts of this commonwealth will countenance

continued and oppressive prosecutions when once a genuine test case open to fair question has been presented and is on the way to final decision."

There were allegations in the bill, that a suit would take several months before a decision could be reached in the Supreme Judicial Court, but no averment as to any pending case being on the way to a final decision.

It

The allegation, therefore, about prevention of a multiplicity of suits had no effect in taking this case out of the rule as to there being no injunction in a suit to prevent enforcement against prosecution for an alleged crime. seems that well might it be thought that this kind of multiplicity is not the kind to be noticed in a case of this kind. Each complainant stands singly as to the law, and the fact that several may be affected by such a pros ecution is no reason for giving to the combination rights not singly to be recognized.

BANKRUPTCY-RIGHT OF RESCISSION BY SELLER SHORTLY BEFORE ADJUDICATION.-In Jones v. Wm. Hobbie Gro. Co., 246 Fed. 431, decided by Fifth Circuit Court of Appeals, it was held that as by Alabama law there is no subordination of the right of a defrauded creditor of personalty to rescind a sale and reclaim property subject to any lien of other creditors of a fraudulent purchaser, such a seller could rescind and recover the personality sold from the purchaser's trustee in bankruptcy.

In

This rule was laid down in a prior circuit court of appeals case in re Siegel, 226 Fed. 1023, under Bankruptcy Act of § 47a (2), which provides that: "Such trustees, as to all property in the custody or coming into the custody of the bankruptcy court shall be deemed vested with all the rights, remedies and powers of a creditor holding a lien by legal or equitable proceedings thereon." the instant case the Fifth Circuit Court of Appeals applies a rule of general law and decides that the bankruptcy statute intends in no way to interfere with its operation, except as the law of a particular jurisdiction, in which a bankruptcy court is sitting, may not regard the application of such general law. That the Bankruptcy Act is subject to administration according to local law is exemplified in instances of exemptions under state statute and in provisions as to record of mortgages, must be admitted. These things do not interfere with the general uniformity aimed at by bankruptcy law.

The cases following the line of liability of implied warranty do not require proof to show that the vendor knew the food was impure, or might have known it by diligent inquiry. If the "purchaser had a right to rely upon an implied warranty that the meat was sound and wholesome, it was not incumbent upon him either to plead or prove that appellant actually knew that the meat was unwholesome. He was only required to plead and prove such facts to the satisfaction of the jury, from which the law raises the implied warranty. Scienter need not be pleaded; and it follows that it need not be proven.' That is especially true where a retailer is held liable on a sale of canned goods he has purchased in the cans from the manufacturers, for in the very nature of things, to ascertain if the particular can contained a pure product, which produced the injury, by opening it, would destroy its salableness.11

1910

(8) Copas v. Anglo-American Prov. Co., 73 Mich. 541, 41 N. W. 690; Tomlinson v. Armour & Co., 75 N. J. L. 748, 70 Atl. 314, 19 L. R. A. (N. S.) 923.

(9) Mazetti v. Armour & Co., 75 Wash. 622, 135 Pac. 633, 48 L. R. A. (N. S.) 213; Freeman v. Schultz Bread Co., 163 N. Y. Supp. 396 (nail in loaf of bread); contra, Jacobs v. Childs Co. 166 N. Y. Supp. 798 (nail in loaf of bread).

(10) Flessher v. Carstens Pkg. Co., 93 Wash. 48, 160 Pac. 14.

(11) Sloan v. F. W. Woolworth Co., 193 Ill. App. 620; Chapman v. Roggenkamp, 182 Ill. App. 117. In a few cases it has been denied that anything can be inferred from a sale of provisions which may not be inferred from a like purpose in other sales: Wright v. Hart, 18 Wend. 464; Emerson v. Brigham, 10 Mass. 197; see also Windsor v. Lombard, 18 Pick, 57.

In a Massachusetts case, an action against the manufacturer, the question of his liability was left to the jury, and it was said that he was bound to use every reasonable precaution to supply an article which would not be deleterious to the consumer's health, apart from any expectation of pecuniary profit or apprehension of loss. Wilson v. J. G, & B. S. Ferguson Co., 214 Mass. 265, 101 N. E. 381.

Where a manufacturer advertised a mixture as healthful and nutritious, and sold it to a

"In ordinary sale of goods the rule of caveat emptor applies unless the purchaser exacts of the vendor a warranty. Where, however, articles of food are purchased from a retail dealer for immediate consumption, the consequences resulting from the purchase of an unsound article may be so serious and may prove so disastrous to the health and life of the consumer that the public safety demands that there should be an implied warranty on the part of the vendor that the article sold is sound and fit for the use for which it was purchased. It may be said that the rule is a harsh one; but, as a general rule, in the sale of provi

wholesaler, who in turn sold it to a druggist, and he to the consumer, it was held whether or not the manufacturer was liable to the consumer on account of the mixture's poisonous character, was a question for the jury. Anheuser Busch Brewing Co. v. Roberts, 211 Mass. 449, 98 N. E. 95.

Where a wife went to a meat dealer and purchased meat for her husband, to be used in their home, it was held that she, because of her injuries sustained on account of the meat's deleteriousness, could not recover on an implied warranty because none was given her, and that she could not recover at all except upon proof of the negligence laid in the declarations; and mere proof of a sale and the harmful result from eating the meat did not make out a case of negligence. Gearing v. Beakson, 223 Mass. 257, 111 N. E. 785.

If one buying meat at a shop relies on the skill and judgment of the dealer in selecting the meat, and the fact is made known to the dealer that his knowledge and skill are relied upon to supply wholesome food, such dealer is liable to the buyer for damages resulting from his supplying unwholesome food. Gearing v. Berkson, supra, following Farrell V. Manhattan Market Co., 198 Mass. 271, 84 N. E. 481.

The rule of implied warranty does not apply where the purchaser is also a dealer, and is in as good a position to judge concerning the quality as the vendor. In such an instance the rule of caveat emptor applies. Zielinski v. Porter (Mich.) 161 N. W. 851; Howard v. Emerson, 110 Mass. 320, 14 Am. Rep. 608; Hart v. Wright, 17 Wend. 267; Wright v. Hart, 18 Wend. 449; Moses v. Mead, 1 Denio 378, 43 Dec. 673; Giroux v. Stedman, 145 Mass. 439, 14 N. E. 538, 1 Am. St. 472; Humphrey v. Comline, 8 Blackf. 516; McRoy V. Wright, 25 Ind. 22; Emerton V. Mathews, 7 H. & N. 586; Smith v. Baker, 40 L. T. (N. S.) 261; Jones v. Murray, 4 B. Mon. 83; Goad v. Johnson, 6 Heisk. 340; Burnby v. Rollit, 16 Mees. & W. 644; Goldrich v. Ryan, 3 E. D. Smith 324; Needham v. Dial, 4 Tex. Civ. App. 141, 23 S. W. 240.

But in a contract to purchase all the liquor to be consumed on the vendee's premises, there is an implied warranty on the part of the vendor that it shall be fit to drink. Clarke v. Stancliffe, 7 Exch. 439.

sions the vendor has so many more facilities for ascertaining the soundness or unsoundness of the article offered for sale than the purchaser, to assume the risk."

Manufacturer's Liability to Ultimate Consumer.--In modern times millions of tons of food are annually packed in the United States in hermetically sealed cans and put upon the market; and millions of tons of food in cartons are likewise offered for sale. The packer's intention is that the food packages and cans shall be sold to the consumer in the same can or package, and in the exact condition in which they leave the factory.

The retailer sells the food to the ultimate consumer, innocent of any impurity that may be in it.

When the ultimate consumer sued a canner of the meat, which was impure and poisonous, the two living nearly a thousand miles apart, and the canned product having passed through the hands of jobbers, wholesalers and a retailer to the plaintiff, it was held that the canner was liable to him, regardless of the fact that there was no contract between them. "The fact that the defendant was the manufacturer," said the court, "presumably having knowledge or opportunity for knoweledge, of the contents of the cans and of the process of manufacture; that it put the goods upon the market for sale by dealers to consumers under circumstances such that neither dealer nor consumer had opportunity for knowledge of contents; the fact that the goods were thus manufactured and marketed under circumstances that imported a representation to intending purchaser that they were fit for food and beneficial to the human body; that in the ordinary course of business there was a probability (it being, indeed, the very purpose of the de

(12) Wiedeman v. Keller, 171 Ill. 93, 49 N. E. 210, reversing 58 Ill. App. 382. The court added, "Moreover, we have a statute which makes it a crime for any person to sell or offer to sell, or keep for sale, flesh of any diseased animal." The case involved a sale of canned fish. See also Chapman v. Roggenkamp, 182 Ill. App. 117. The above passage is quoted in Sloan v. F. W. Woolworth, 193 Ill. App. 620.

fendant) that the goods should be purchased and used by parties purchasing in reliance upon its representations, and that defendant negligently prepared the food so that it was unwholesome and unfit to be eaten, and poisonous to the human body, whereby the plaintiff was injured, makes a case that renders the defendant liable for the damages sustained by the plaintiff thereby."13 A number of cases reach the same result.14

It has also been held that the retailer is liable to his immediate vendee for impure food in a sealed can, even though he had no knowledge of its impurity.15 A purchaser of a loaf of bread that had a nail in it, bit upon the nail and was injured, and it was held that he could recover damages of the baker, though he had bought the loaf from a retailer16 So when a meat dealer put up

(13) Tomlinson v. Armour & Co., 75 N. J. L. 748, 70 Atl. 314, 19 L. R. A. (N. S.) 923. The court reviews many cases, only a few of which concern sales of food.

(14) Thomas v. Winchester, 6 N. Y. 397, 57 Am. Dec. 455 (sale of drugs); Blood Balm Co. v. Cooper, 83 Ga. 457, 10 S. E. 118, 5 L. R. A. 612, 20 Am. St. 324; Ketter v, Armour & Co., 200 Fed. 322 (trichina in pork); Haley v. Swift & Co., 152 Wis. 575, 140 N. W. 292; Parks v. G. C. Yost Pit Co., 93 Kan. 334, 144 Pac. 202, L. R. A. 1915 C 179; Wilson v. J. G. & B. S. Ferguson Co. 214 Mass. 265, 101 N. E. 381; Mazetti v. Armour & Co., 75 Wash. 622, 135 Pac. 633, 48 L. R. A. (N. S.) 213 (The consumer is not bound to first sue the retailer and make an effort to collect from him). Boyd v. Coca-Cola Bottling Works, 132 Tenn. 23, 177 S. W. 80 (dead mouse in bottle); Watson v. Augusta Brewing Co., 124 Ga. 121, 52 S. E. 152, 1 L. R. A. (N. S.) 1178. 110 Am. St. 157; Anheuser-Busch Brewing 'Assn. v. Roberts, 211 Mass. 449, 98 N. E. 95; Hollingworth Midwest Serum Co. (Iowa), 162 N. W. 620 (hog anti-cholera serum); Ward v. Morehead City Sea Food Co., 171 N. C. 33, 87 S. E. 983; Catani v. Swift & Co., 251 Pa. 52, 95 Atl. 931; French v. DeMoss (Tex. Civ. App.) 180 S. W, 1105 (poisonous antiseptic tablets instead of acetanilid tablets); Richards v. H. K. Mulford Co., 236 Fed. 677, 150 C. C. A. 9.

V.

(15) Sloan v. F. W. Woolworth Co., 193 Ill. App. 620 (see later in the decision of the liability of a restaurateur); Rinaldi v. Mohican, 171 App. Div. 814, 157 N. Y. Supp. 561; contra, Julian v. Laubenberger, 16 Misc. Rep. 646, 38 N. Y. Supp. 1052.

(16) Freeman v. Schultz Bread Co., 163 N. Y. Supp. 396. In the case of a guest in a restaurant biting on a nail in a loaf of bread, a recovery against the keeper of the restaurant was denied. Jacobs v. Childs Co., 166 N. Y. Supp. 798.

in packages prepared mince meat, some of which the ultimate purchaser ate and died from the poisonous effects, it was held that the manufacturer was liable to the administrator of the deceased.17

And when the child of the purchaser of sausages made of putrid meat ate it, to its injury, it was held that it had a cause of action against the manufacturer.18

The fact that the product sold had been out of the manufacturer's possession for several months will not preclude, as a matter of law, a recovery. Where a manufacturer has advertised his article to be healthful and harmless, a buyer of it, injured in its use, may recover in tort because of his injuries.1

19

Canned Goods.-Let us return to the subject of canned food. As the intent of a canner of food is that it shall be sold to the consumer unopened, the courts have pretty generally held that the canner is liable to the consumer who is injured by its deleterious condition, regardless of how many hands it has passed through from him to such consumer. The canner is presumed to have knowledge, or an opportunity to gain knowledge, of the contents of the cans and of the product manufactured; and it is not necessary to either aver or prove that he had knowledge of their deleterious condition, or that they are unfit for consumption

(17) Solomon v. Libby, McNeil & Libby, 219 Ill. 421, 76 N. E. 573 (the averment was that the defendant negligently and improperly prepared and manufactured the mince meat, whereby became unfit for food and was poisonous. There was no averment of a scienter, the declaration counting upon the negligence alone. held that it set forth a good cause of action). Croft v. Parker, W. & Co., 96 Mich. 245, 55 N. W. 812, 21 L. R. A. 139 (Spoiled bacon; the defendant was the vendor to the retailer, not the manufacturer; and he was held liable; nothing was said about the manufacturer).

It was

or food. The very act of canning the food and putting it on the market imports a representation to intending purchasers that the food is fit to eat and is beneficial to the human body. The fact that there is no immediate contract between the canner and consumer is not necessary to render the canner liable. The canner is under a duty to the consumer to exercise care that the goods which he puts up and sells to the wholesaler or retailer are wholesome and fit for food, and not tainted with poison.20

Ultimate Consumer-Summary of Cases. -"Practically all the modern cases are to the effect that the ultimate consumer of foods, medicine, or beverages, may bring his action against the manufacturer for injuries caused by the negligent preparation of such articles. This is certainly true where the articles are sold in sealed packages and are not subject to inspection. Some of the cases place the liability on the grounds heretofore stated [viz: breach of legal duty where the act performed, if not done with care and skill, will imperil the lives of others]. Others place it on pure food statutes. Others say there is an implied warranty when the goods are dispensed in original packages, which is available to all damaged by their use; and another case says the liability rests upon the demands of social justice."21

Restaurant Keepers.-In the case of a restaurant keeper who regales his customers with poisonous food, to their injury, it has been held that the guests may recover without averring or proving that the restaura

(20) Tomlinson v. Armour & Co., 75 N. J. L. 748, 70 Atl. 314, 19 L. R. A. (N. S.) 923; Salmon v. Libby, McNeil & Libby, 219 Ill. 421, 76 N. E. 573, reversing 114 Ill. App. 258; Craft v. Parker W. & Co., 96 Mich. 245, 55 N. W. 812, 21 L. R. A. 139; Jackson Coca-Cola Bottling Co. v. Chapman (Miss.), 64 So. 791; Malone v. Jones, 91 Kan. 815, 139 Pac. 387, affirmed on rehearing 92 Kan. 308, 142 Pac. 274, L. R. A. 1915A 331; Parks v. G. C. Yost P. Co., 93 Kan. 334, 144 Pac. 202, L. R. A. 1915C 179; contra, Nelson v. Armour & Co., 76 Ark. 352, 90 S. W. 288, 6 A. & E. Ann. Cas. 237.

(21) Boyd v. Coca-Cola Bottling Works, 132 Tenn. 23, 177 S. W. 80.