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251
[1905
called its "reek" is generally thought to be traceable to the system of malting over a peat
fire and where Scotch whiskey "reeks" of the peat it is said to "have a peat reek;" but
in no instance, whether it has a peat reek or not, does Scotch whiskey give the same flavour
or smell as Irish whiskey, the two kinds are easily distinguishable. Again, pot still whiskey
made of the materials used in Ireland or in Scotland, it is agreed by all parties, is a distinct
and different article from the patent still product wherever that may be made, distinct and
different in taste, flavour and smell. This difference, I believe, arises mainly from the
difference in the method of distillation, from the difference in the working of the machine,
the still, used. However that may be, while Irish and Scotch whiskey are clearly distinguishable
from one another, the product of the patent still made in Ireland is not to be distinguished
from that made in Scotland or even in London; therefore if the spirit produced
by the patent still is to be recognised as Irish or Scotch whiskey according to the place
where it is made, the terms Irish and Scotch as applied to whiskey cease to have any meaning.
Now as to what the fluids sold as Irish and Scotch whiskey by the defendants Wells and
Davidge respectively were, I had the evidence of Dr. Teed, an analyst of great experience;
of the accuracy of whose analysis Professor Sir James Dewar, a most eminent chemist, had
no doubt whatever. Dr. Teed, drawing his conclusions from the result of his analysis of
the samples, is of opinion that the spirit is the product of the distillation of some grain, he
cannot say of what kind, in the patent still. He arrived at his opinion because after analysing
many pot still whiskies from different distilleries and of various ages, Dr. Teed was
satisfied that it was reasonable to conclude that pot still whiskey contains at least 380 parts
in 100,000 fluid parts of absolute alcohol, of "impurities" (scientifically so called); while
patent still spirit, he found, did not contain anything like so large a proportion of such
"impurities." Dr. Teed was vehemently attacked and ridiculed by the leading Counsel for
the defence—Mr. Fletcher Moulton (now Lord Justice Moulton)—for taking such a basis on
which to found his opinion, and I am surprised, now that I have heard the chemists called
by the defence, that such an attack should have been made on Dr. Teed, for Professor Sir
James Dewer could not contradict Dr. Teed, though he was unable to corroborate him in his
opinion that the figures obtained by Dr. Teed in his analysis of the samples warranted Dr.
Teed's conclusions from them that the samples were of patent still produce entirely; but
Professor Sir james Dewar's evidence, taken as a whole, amounted to the admission that he
understood from Dr. Teed's figures, which Professor Sir James Dewar accepted as correct,
that the samples giving those figures were from the patent still as to 80 per cent, or 90 per
cent. Dr. Tunnicliffe too gave evidence and produced figures of analyses confirming to a
considerable extent Dr. Teed's opinions and conclusions from his analyses. I intentionally
make no reference to the evidence given by Dr. Tatlock as an expert witness. Now Professor
Sir James Dewar and Dr. Tunnicliffe did not contradict Dr. Teed, and if Dr. Schidrowitz
could have done so I have no doubt he would have been put into the witness box, as he was
in Court, but he was not called. In addition to what I may call the professional evidence
of Professor Sir James Dewar and of Dr. Tunnicliffe the defence called the blenders of the
spirit sold by the defendants, and the makers of 90 per cent, of it; and their evidence, if I
accepted it without reservation, and I do not so accept it, proves that Dr. Teed was not
far wrong in his conclusions as to the origin and manufacture of the articles as to which he
certified. I am not satisfied that Dr. Teed was at all wrong. The men who actually handled
the spirit sold by the defendants before it was sold to them, say that Wells' sample and
Davidge's were both 90 per cent, patent still spirit. In each case the spirit was derived
largely from maize. The rest of the spirit sold to and by Wells and Davidge besides the 90
per cent, was said to be pot still whiskey made from barley malt.