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(1) The proof that the retailer sold the milk in the same state as when he
purchased it is usually the evidence tendered by himself, or by his own agents,
or by members of his own family, or by persons in his own employ, who
received the milk on delivery and handled it, and who describe in detail under
oath how and when the milk was handled from the time of delivery at the
premises to the time of selling to the Inspector. Rebutting evidence to this
cannot be produced by the Inspector.
The usual course of events is that the milk is delivered at the premises in a
metal receptacle, that this receptacle containing the milk is carried to some
particular part of the premises and deposited there, that after being stirred to
mix the cream the milk is usually transferred in part or in whole from the
receptacle in which it was delivered to the receptacle in which it is intended to
be sold, that this latter receptacle is usually stood upon the counter of the milk
shop, and that that the milk is removed therefrom for sale by a dipper after
stirring to mix the cream. The milk may be sold immediately after delivery
or some hours may elapse, and the milk after delivery may only pass through
one person's hands or may be handled by several persons. Whether or not a
strict watch is kept to see that no person add water to it or takes cream from
it is a matter of statement upon oath, which is practically impossible to refute.
(2) The proof that the retailer had no reason to believe that at the time
when he sold it the milk was not of the nature, substance and quality
demanded of him is usually his statement upon oath. "Milk," when sold by
retail to the public, is interpreted to mean pure whole milk. It the retailer, in
addition to proving by the previous-mentioned evidence, (a) that he sold the
milk in the same state as when it was delivered at his premises, also gives
evidence upon oath (b) that he had no reason to believe that what he sold was
not pure whole milk, he apparently is held to have discharged his responsibility
for the quality of the milk that he sold to the public.
The purchaser, that is, the Inspector representing the public, is bound to
ascertain and prove the quality of the milk before he can take proceedings
against the retail vendor, but the retail vendor is not bound to ascertain
the quality of the milk ho buys or sells, he has merely to prove his belief
that it is pure whole milk. This is the crux of the question. Surely the
seller of an article ought to be held responsible for knowing what he is
buying to sell to the public. So far as the watering and skimming of milk
are concerned, there are rough and ready tests available, and sufficient to
indicate these forms of sophistication, although not acceptable as exact
evidence, but then, as soon as his suspicions are aroused, the retailer can
call upon the Inspector to sample the milk upon delivery, at his premises,
or to him (the retailor). The fact that such a request is never made by a
retailer is sufficient to show how the anomalous condition of the law has
relieved him of all sense of responsibility. The Board of Agriculture might
with advantage be urged to inquire into the rapid and simple methods
available for testing the quality of milk, especially as to the quantity of water
and of butter fat, with the view to making a retailer responsible within limits
under sec. 25 of the Sale of Food and Drugs Act, 1875, for the quality of the
milk he purchases to sell to the public, and for not calling in the Inspector to
sample the milk upon delivery from the wholesale dealer when the suspicion of
the retailer ought to have been aroused, and for not having a written warranty.