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firstly, that proceedings had to be taken within six months from
the giving of the false warranty, and that although there might
not be any difficulty with regard to that where an express
warranty was attached to each churn, yet there were instances
where the warranty was contained in a contract more than six
months old, and they doubted in that case whether a prosecution
could be sustained; secondly, that the giver of the warranty was
entitled to show that when he gave the warranty he had reason
to believe that the statements or descriptions contained therein
were true, the onus being, of course, on the defendant to show
that, but that he would no doubt in many cases be able to satisfy
a Magistrate, seeing that it was quite impossible to meet oath
with oath no such a point; thirdly, that there was the difficulty
of successive warranties, i.e., if A, a farmer, sold milk with a
warranty to B, a middleman, who sold it exactly as he received
it with another warranty to C, a retailer, there was no one who
could be successfully prosecuted, the legislature not having
provided for the case of successive warranties ; and fourthly, that
the Analyst's certificate, given for the purpose of prosecuting the
retail seller, could not be used as evidence against the wholesale
dealer in a prosecution for giving a false warranty.
The City Solicitors were cf opinion that, for the protection of the
public, Section 25 of the Act of 1875 should be repealed, and the
retailer left to his remedy against the person selling him the milk under
a false warranty, and that it might be worth while to call the attention
of the Local Government Board to the present difficulties in the
prevention of frauds upon the public.
A curious point arose in connection with a case in which the sample
was asserted to be a mixed milk from two distinct sources. The
defendant in the case gave notice of two warranties, and stated that the
milk was received from two farmers with a warranty from each, that
the contents of 2 churns received from the said farmers were turned
into 1 drum, and the milk which was analysed was taken from such
drum. The City Solicitor raised the point that in consequence of this
mixture of the milk from the two farmers, the defendant could not say
that they sold the milk from either farmer in the same state as when
they purchased it, and that they were therefore not entitled to the
benefit of Section 25 of the Act of 1875. The Magistrate in a
considered judgment, stated that he thought that as the milk from both
the farmers was sold under a warranty, the defendant was entitled to
do what he had done, and that, in his opinion, the milk was sold in the
same state as when he purchased it, the warranties having been, of