NOTICE OF JUDGMENT NO. 1027.
(Qireu pursuant to section 4 of the Food and Drugs Act.)
ALLEGED ADULTERATION OF FROZEN EGG PRODUCT.
On November 23, 1910, the United States Attorney for the District 
of New Jersey, acting upon the report of the Secretary of Agri- 
culture, filed in the District Court of the United States for said 
district a libel praying condemnation and forfeiture of 443 cans of 
frozen egg product in the possession of the Merchants Refrigerating 
Co., Jersey City, N. J.
Examination by the Bureau of Chemistry, United States Depart- 
ment of Agriculture, of samples of said product showed it to contain 
added sugar and 6,000,000 organisms per gram, 100,000 of said 
organisms being of the gas-producing type. The libel alleged that 
the frozen egg product after transportation from the State of 
Kansas into the State of New Jersey remained in the original 
unbroken packages and was adulterated in violation of the Food 
and Drugs Act of June 30,1906, because sugar had been added thereto 
and had been substituted in part therefor, and because it consisted 
in whole or in part of a filthy, decomposed, and putrid animal sub- 
stance, and was, therefore, liable to seizure for confiscation.
On January 4, 1911, the H. J. Keith Co. filed answer to said 
libel, a jury was waived, and the case was heard by the court which 
rendered its opinion in form and substance as follows:
UNITED STATES CIRCUIT COURT, DISTRICT OF NEW JERSEY.
UNITED STATES OF AMERICA
vs.
443 CANS OF FROZEN EGG PRODUCT.
The COURT  (Cross, District Judge, orally)': This is a suit brought by the 
Government against 443 cans of frozen egg product, to condemn this egg sub- 
stance, under the Pure Food Law; the Government claiming that, under that 
3954°—No. 1027—11
law, the article must be deemed to be adulterated In two respects; under the 
second subdivision of section 7, if any substance has been substituted wholly 
or in part for the article, and, under the sixth subdivision of the same section, 
if it consists in whole or in part, of a filthy, decomposed or putrid animal 
substance.
The charge under the sixth subdivision of section 7 has been limited so that 
only the word " decomposed " is now relied upon. A bill of particulars was 
furnished whereby the words " filthy " and " putrid " were eliminated. So, as 
just stated there remains but two points for consideration—first, whether any 
substance has been wholly or in part substituted for the article, and, second, 
whether the food product under examination has been shown to be decomposed.
It has been admitted in the case that this egg mixture is a food product and 
that it was transported in interstate commerce. I understand that no question 
is raised about that.
The Government is the moving party herein, and the burden of proof, there- 
fore, rests on the Government to establish, by the weight of the evidence, the 
allegations of its petition of forfeiture. The Government must not only estab- 
lish its case by the weight of the evidence, but, this being a case involving the 
forfeiture of property, the evidence must be of a clear and convincing char- 
acter.
Under the second clause of the seventh section, I shall dismiss the Gov- 
ernment's charge at once. I do not think, under the evidence in the case, that 
that clause has been violated; that is, I do not think that the egg product in 
question is adulterated within the meaning of the second subdivision of section 
seven. It is the very article that it was intended to be—the very article that 
was intended to be made and sugar was a part of that article. This is not a 
case of misbranding. The article is made under a patent, or at least a similar 
article is patented—and I do not think that the introduction of sugar under 
(he circumstances disclosed, adulterates the article within the meaning of the 
act. It is made just as it was ordered and as it was directed to be made; 
that being so it is not clear why sugar adulterates the article any more than 
the putting of salt and pepper into canned soup would adulterate that article, 
assuming that the soup was to be seasoned.
The only question remaining, therefore, is whether this egg product was 
decomposed in whole or in part, and, in determining whether or not it was so 
decomposed, that word must be given its ordinary signification. It is not used 
in any technical sense here, and should not have any such meaning given it.
The question is whether in the ordinary sense of the word the article was 
in whole or in part decomposed.    I do not think it was under the evidence.
There has been a great deal of technical testimony given by experts upon 
both sides of that question, which testimony, as I look at it is in direct con- 
flict. Under the Government's expert testimony, the substance was apparently 
decomposed, while if you look at the other expert testimony, that in behalf of 
the claimant, it certainly could not be so considered.
I think the Government has not sustained the burden of proof which rested 
upon it to show, under the expert testimony, that this egg product was decom- 
posed, either in whole or in part, and if we look at what might be called the 
lay testimony—the testimony as to tasting, smelling and baking or the practical 
uses of the substance—it has likewise failed. I think the claimant has really 
borne the burden of proving that this egg product was not decomposed. The 
Government has not, therefore, sustained, the burden of proof which rested 
upon it, but, on the contrary, the clear weight of all of the testimony given is 
with the claimant and not with the Government, and accordingly my finding 
is in favor of the claimant. 
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On April 10,1911, the court issued its decree in accordance with the 
above opinion dismissing the libel and ordering the release of the 
product to the claimants. Within the prescribed period the United 
States appealed from the above decree to the United States Circuit 
Court of Appeals for the Third Circuit where the case is now pending 
on the following grounds, to wit:
ASSIGNMENT OF EKEOBS.
First. The said Court erred in dismissing the libel filed by the United States 
of America in this cause.
Second. The said Court erred in making, entering and rendering a decree in 
said cause in favor of the said claimant H. J. Keith Company, and in adjudging 
that the frozen egg product seized in this cause should be released by the 
Marshal of this District.
Third. That the said Court erred in making and entering a decree in said 
cause that the frozen egg product seized in said cause was not adulterated 
within the meaning of the act of Congress entitled "An act for preventing the 
manufacture, sale or transportation of adulterated or misbranded or poisonous 
or deleterious foods, drugs, medicines and liquors and for regulating traffic 
therein and for other purposes " approved June 30, 1906.
Fourth. That the said Court erred in making and entering a decree in said 
cause that the frozen egg product seized in said cause did not at the time of said 
seizure consist in whole or in part of a decomposed animal substance within the 
meaning of the act of Congress known as " The Food and Drugs Act June 30, 
1906."
Fifth. That the said Court erred in admitting in evidence, and in considering 
as an element in the case, the contract marked " Exhibit D 1", being a contract 
between the Waldorf Pound Cake Company and the H. J. Keith Company.
Sixth. That the said Court erred in admitting in evidence, and in considering 
as an element in the case, United States Letters Patent Number 955,835 for 
preserving eggs, issued April 19, 1910, to H. J. Keith Company.
Seventh. That the Court erred in not finding that the frozen egg product in 
question was adulterated within the meaning of the act of Congress known as 
?' The Food and Drugs Act June 30, 1906."
Eighth. That the Court erred in not finding that the frozen egg product in 
question consisted in whole or in part of a decomposed animal substance.
Ninth. The said order and decree is contrary to the law and the evidence.
JAMES WILSON,
Secretary of Agriculture. 
WASHINGTON, D. C, July 20,1911.
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