Appellant's Case Page 5

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supplied by the said Mr. Minchella with a bottle of ginger-beer manufactured by the defender for sale to members of the public. The said bottle was made of dark opaque glass, and the pursuer and her friend has no reason to suspect that the said bottle contained anything else than the aerated-water. The said Mr Minchella poured some of the said ginger-beer from the bottle into a tumbler containing the ice-cream. The pursuer then drank some of the contents of the tumbler. Her friend then lifted the said ginger-beer bottle and was pouring out the remainder of the contents into the said tumbler when a snail, which had been, unknown to the pursuer, her friend, or the said Mr Minchella, in the bottle, and was in a state of decomposition, floated out of the said bottle. In consequence of the nauseating sight of the snail in said circumstances, and of the noxious condition of the said snail-tainted ginger-beer consumed by her, the pursuer sustained the shock and illness hereinafter condescended on. The said Mr Minchella also sold to the pursuer's friend a pear and ice. The averments in answer, so far as not coinciding herewith, are denied. The said ginger-beer bottle was fitted with a metal-cap over its mouth. On the side of the said bottle there was pasted a label containing, inter alia, the name and address of the defender, who was the manufacturer. It was from this label that the pursuer's said friend got the name and address of the defender.

Ans. 2. Denied that any bottle of ginger-beer manufactured by the defender contained a snail. Quoad ultra not known and not admitted. Any illness which the pursuer suffered was not due to her having partaken of the contents of a bottle of ginger-beer manufactured and sent out from the defender's factory. Explained that the defender has never issued bottles answering the description given by the pursuer.

    COND. III. The shock and illness suffered by the pursuer were due to the fault of the defender. The said ginger-beer was manufactured by the defender and his servants to be sold as an article of drink to members of the public (including the pursuer). It was, accordingly, the duty of the defender to exercise the greatest care in order that snails would not get