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10
In this connection the following considerations are of importance: —
(1.) A considerable majority of the retail milk dealers are now
protected by warranties either from the wholesale dairy companies,
who act as middlemen, or from the farmers direct. Warranties' are
now being given with the greatest readiness, as the warrantors are
aware that for all practical purposes their warranties are unassailable.
(2.) The wholesale dairy companies, who act as middlemen, rely
upon warranties from the farmers who supply them, such warranties
being for all practical purposes sufficient evidence that when they—
the middlemen—gave the warranty to the retailer, they had reason to
believe that the statements or descriptions contained therein were
true. Sale of Food and Drugs Act, 1899, Section 20 (6.))
(3.| The small general traders, who sell milk in small quantities
as part of a general grocery business, are, as a rule, unprotected by
warranties, and are at present the only persons whom the Acts can
touch.
(4.) Where warranties are set up in defence, either by the retail
dealer in the original prosecution or by the middleman in proceedings
for giving a false warranty, it is almost impossible to obtain a conviction.
The retail dealers have no difficulty in showing that they had
no reason to disbelieve the warranties on which they rely, and that
they sold the milk in the same state as when they purchased it. The
magistrates are bound to accept this evidence, which is incapable of
contradiction, and consequently dismiss the summonses. In the case
of proceedings for giving false warranties, the defendants have no
difficulty in proving that when they gave the warranties they had
reason to believe that the statements or descriptions contained therein
were true, and this evidence also is incapable of contradiction.
The magistrates are then bound to discharge the defendants.
(5.) In proceedings for giving a false warranty, the original
defendant—the retail dealer—has to be called as a witness for the
establishment of the complainant's case. The retail dealer is
practically a hostile witness, for it is against his trade interests to
help proceedings against a person or persons with whom he does
business. Moreover he is no longer concerned in the result, as he has
already been discharged for his share in the transaction, and cannot
be prosecuted twice for the same offence.
(6.) No proceedings can be taken against a warrantor for giving
a false warranty, if the warranty was given more than six months
before the institution of proceedings.