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1905]
252
On the evidence I heard I find that what Wells and Davidge sold as Irish and Scotch
whiskey respectively was patent still spirit made largely of maize, to which had been added
a dash, not 10 per cent., of Irish or Scotch whiskey. The quantity of whiskey added to the
patent still spirit was so small that I cannot understand why it was added, unless it was to
•' save the face " of those who described it as whiskey.
It was admitted by the defence that both the Wells and the Davidge article was. a very
cheap poor "whiskey" as it was called by the defence; and it is interesting to observe by
the light of the evidence that both pot still and patent still spirit greatly improves with age,
that at least Ski per cent, of Wells' spirit was only one month old when put into Wells' cellar
in May, and so less than six months old when sold by him in September, while what Davidge
sold in June, 1905, as "Fine Old Scotch Whiskey" was, as to about 90 per cent, made in
June, 1904, just one year before.
Now having found that the fluids sold by the defendants are spirit produced by the patent
still from a mash consisting to a large extent of maize, to which a dash of whiskey made
from barley malt in a pot still had been added, I find, in my judgment, that Wells' sample
is not Irish whiskey and Davidges' sample is not Scotch whiskey, and Irish whiskey and
Scotch whiskey having been demanded by the purchaser from Wells and Davidge respectively,
1 find that each of the defendants did sell an article of food which was not of the nature,
substance and quality demanded.
Let me now consider whether what the defendants did was to the prejudice of the
purchaser. The purchaser asked for and paid for Irish whiskey and Scotch whiskey, either
of which costs more to make and, as an article of commerce, is of far greater value than
the patent still spirit, with a dash of whiskey in it, which was delivered to him. He asked
and paid for an article worth twice as much as the article he got. I have no doubt that
the medicinal value of Irish or Scotch whiskey with their larger proportion of so-called
" impurities" is greater than that of spirit from the patent still which does not contain
" impurities" in nearly so large a proportion. Irish and Scotch whiskey on the one hand
and patent still spirit with a little whiskey added on the other hand are two very different
articles. They differ in their contents, in their flavours and in their scents. No average
man could by taste or smell mistake one for the other; and after drinking both Irish and
Scotch whiskey and pure patent still spirit, as represented by " Cambus," neat as well as
diluted, I am strongly inclined to agree with the witnesses who said that the effect of the
pure patent still spirit on the person taking it was different from the effect of Irish or Scotch
whiskey when drank by him, and this to the disadvantage of the pure patent still spirit.
I am not prepared to say that patent still spirit alone or mixed with whiskey is injurious
to the drinker. There is no accounting for tastes, and the preference of one man should not
dictate the choice of another; but whatever a purchaser asks for and pays for should be
given to him by the seller, or at any rate the seller should afford the purchaser the means
of knowing what it is he is getting for his money, certainly if he is not getting that for
which he has asked and has paid.
It is not unlawful to sell patent still spirit or patent still spirit mixed with whiskey ; but
notice should be given to the purchaser of what it is when such spirit is sold to him and on
being served with it he should not be allowed, in his ignorance, to believe that what he has
is Irish or Scotch whiskey.