PEOPLE v. WIARD

Plaintiff's exceptions overruled, motion denied and judgment ordered for the defendant on the verdict, with costs. Held, that the analysis of a sample of milk taken from only part of the product delivered by the producer at any one time to a single purchaser will not afford a basis for an action for a penalty under the Agricultural Law (Laws of 1893, chap. 338). All concurred, except McLennan, J., who dissented upon the ground that, under the Agricultural Law, which provides for making a chemical analysis of a sample of milk delivered by a producer as one step in determining whether such milk has been adulterated, it is not necessary to mix all the milk delivered at one time by the producer, and take a sample for such analysis from the whole, in order to make such analysis the basis of an action to recover the penalty fixed by the statute; but the analysis of a sample taken from a single can or package may be made the basis of such an action, provided only that the sample so taken from such single can or package shall be a fair sample. Whether or not the sample taken and analyzed in this case was a fair sample was a question of fact which should have been submitted to the jury.