The purchase must be made for the purpose of analysis and not for consumption, it would seem. The agent acts in an official capacity when making the purchase, though that fact may not be known to the seller." § 498. Number of Samples Purchased. Regulation 3, in addition to other things, provides that "A sample taken from bulk goods shall be divided into three parts, and each shall be labeled with the identifying marks. If a package be less than four pounds, or in volume less than two quarts, three packages shall be purchased, when practicable, and the marks and tags upon each noted as above. When three samples are purchased, one sample shall be delivered to the Bureau of Chemistry or to such chemist or examiner as may be designated by the Secretary of Agriculture; the second and third samples shall be held under seal by the Secretary of Agriculture, who, upon re duly authorized assistant went into a grocer's shop accompanied by a boy. The boy bought a pound of salt butter, and said it was for the public analyst. This was held to be a purchase by the inspector, the court saying: "I hold that a person who sends a messenger to buy the article of food for him is the purchaser within the meaning of the Act." Macauley v. Mackirdy, 3 White's Rep. (Sc.) 464. So where an inspector asked a street scavenger to go into a shop and buy him butter, and gave him the money, and the scavenger did so, whereupon the inspector walked into the shop, and took over the butter. This was held to be a sale to the inspector. Massey v. Kelso, 4 Fraser (J. C.) 73, 39 Sc. L. R. 645. See also Tyler v. Dairy Supply Co., 72 J. P. 132, 98 L. T. 867, 6 L. G. R. 422. It must be admitted, however. that here we tread on uncertain ground. The English decisions on a similar point are not harmonious. Parsons v. Birmingham Co., 9 Q. B. Div. 172, 46 J. P. 727, 51 L. J. M. C. 111, 30 W. R. 748; Harris v. Williams, 6 T. L. R. 47; Enniskillen Union v. Hilliard, 14 L. R. Ir. 214; Hotchin V. Hindmarsh [1891], 2 Q. B. 181, 57 J. P. 775, 60 L. J. M. C. 146, 65 L. T. 149, 39 W. R. 607; Buckler v. Wilson [1896], 1 Q. B. 83, 60 J. P. 118, 65 L. J. M. C. 18, 73 L. T. 580, 44 W. R. 220; Rex v. Mahoney [1909], 2 Ir. Rep. 490. 1 This refers to a preceding sentence which is as follows. "The collector shall also note the names of the vendor and agent through whom the sale was actually made, together with the date of the purchase." quest, shall deliver one of such samples to the party from whom purchased or to the party guaranteeing such merchandise. When it is impracticable to collect three samples, or to divide the sample or samples, the order of delivery outlined above shall obtain, and in case there is a second sample the Secretary of Agriculture may, at his discretion, deliver such sample to parties interested. All samples shall be sealed by the collector with a seal provided for the [that] purpose." The Secretary of Agriculture is not bound to deliver the third package "to the party from whom purchased or to the party guaranteeing such merchandise," unless requested by him. If a request for it be made, then such sample must be delivered to him or the government will not be able to base a prosecution upon the result of examination. The delivery of the third part of the sample to the seller is for the purpose of notifying him that proceedings against him under the statute is contemplated. In the case of a guarantor, who is the person that may be guilty, the third part of the sample must be delivered to him and not to the seller, for the latter is protected by the guaranty he holds. The delivery need not be made immediately upon the purchase; and this is especially true where the guarantor resides in another State or at some distance. § 499. Notice of Object of Purchase. In the previous section it is said that the delivery of the third part of sample to the seller has for its object the notification to him that the purchase was made to obtain a sample for analysis under the Food and Drugs Act. But inasmuch as this part is to be delivered to the seller only upon his request, and if no request be made no delivery is required, it would seem clear that notice to the seller that analysis of the product purchased is intended is not required. Neither the statute nor the regulations require such notice to be given. The rights of the seller are in no way jeopardized 1 The English statute requires the purchaser to "forthwith" noti fy the seller "that the sample had been purchased for the purpose of by the lack of notice; for he is not bound by the result of the analysis. § 500. Analysis-Notice of Result. Section four of the Food and Drugs Act provides that "the examinations of specimens of food and drugs shall be made in the Bureau of Chemistry of the Department of Agriculture, or under the direction and supervision of such bureau, for the purpose of determining from such examination whether such articles are adulterated or misbranded within the meaning of this Act." Regulation 4 provides that "unless otherwise directed by the Secretary of Agriculture, the methods of analysis employed shall be those prescribed by the Association of Official Agricultural Chemists and the United States Pharmacopoeia." Section four still farther provides that "if it shall appear from any such examination that any of such specimens is adulterated or misbranded within the meaning of this Act, the Secretary of Agriculture shall cause notice thereof to be given to the party from whom such sample was obtained." Regulation 5 construes this to mean that the notice must be given to the person who is responsible for the adulteration or misbranding. This means, if the food or drug has been guaranteed under section nine, that the notice must be given to the guarantor rather than to the retailer from whom the sample was actually purchased. So much of this Regulation 5 as is apropos here is as follows: "When the examination or analysis shows that the provisions of the Food and Drugs Act, June 30, 1906, have been violated, notice of that fact, together with a copy of the findings, shall be furnished to the party or parties from whom the sample was obtained or who executed the guaranty as provided in the Food and Drugs Act, June 30, having it analyzed by the public analyst." The cases on this statute are Barnes v. Chipp, 3 Ex. Div. 47, 47 L. J. M. C. 85, 38 L. T. 570, 26 W. R. 635; Wheeker v. Webb, 51 J. P. 661; Parsons v. Birmingham PURE FOOD-38. Dairy Co., 9 Q. B. Div. 172, 46 J. 1906." This is not a notice that the examination or analysis will be made; it is simply notice of the result of the analysis or examination. As we have seen, notice that an analysis or examination will be made is not required. The only notice that an analysis or examination will be made is the indirect one arising from a delivery of a part of the sample taken upon the request of the person from whom it was procured. § 501. Hearing before Agricultural Department. If the analysis or examination shows that the food or drug analyzed or examined is adulterated or misbranded, then notice of the result must be "given to the party from whom such sample was obtained." The notice is given by the Secretary of Agriculture, and a time is usually fixed therein for a hearing before that officer, or before "such other official connected with the food and drug inspection service as may be commissioned by him for that purpose." Section four provides that "Any party so notified shall be given an opportunity to be heard, under such rules and regulations as may be prescribed, and if it appears that any of the provisions of this Act have been violated by such party, then the Secretary of Agriculture shall at once certify the facts to the proper United States district attorney, with a copy of the result of the analysis or examination of such article duly authenticated by the analyst or officer making such examination, under the oath of such officer." Regulation 4 provides, after prescribing that a notice shall be given that a hearing will be had "before the Secretary of Agriculture, or such other official connected with the food and drug inspection service as may be commissioned for that purpose,' proceeds: "The hearings shall be had at a place, to be designated by the Secretary of Agriculture, most convenient for the parties concerned. These hearings shall be private and confined to questions of fact. The parties interested therein may appear in person or by attorney and may propound proper interrogatories and submit oral or written evi dence to show any fault or error in the findings of the analyst or examiner. The Secretary of Agriculture may order a re-examination of the sample, or have new samples chosen for further examination. If the examination or analysis be found correct the Secretary of Agriculture shall give notice to the United States district attorney as prescribed [by statute]." A further clause of Regulation 5 is as follows: "Any health, food, or drug officer or agent of any State, Territory, or the District of Columbia who shall obtain satisfactory evidence of any violation of the Food and Drugs Act, June 30, 1906, as provided in section five thereof, shall first submit the same to the Secretary of Agriculture, in order that the latter may cause notice to be given to the guarantor or to the party from whom the sample was obtained." This hearing is a very important matter for the manufacturer or seller. Full privilege is given him to show that the analysis or the result of examination is erroneous. This rule declares that the hearings "shall be private." This is for the purpose of preventing injury to the reputation of the article analyzed or examined if it should be found that the analysis or examination was erroneous. This rule also provides that the hearings shall be "confined to questions of fact." But this does not prohibit arguments to show whether or not the facts found come within the provisions of the statute, as to the meaning and intent of the provisions of the Act alleged to have been violated, particularly in those provisions where it is found, as applied to facts, they are not clear. No action is taken by the Secretary of Agriculture until the dealer or manufacturer has been notified and afforded a hearing before the Board of Food and Drug Inspection. But the preliminary hearing in each case may be held before the chief of the laboratory making the examination. In case of an adverse decision the recommendation of each chief, together with a digest of the testimony, must be submitted to such board for final action. Instead of appearing in person or by attorney, the interested parties may submit a brief to the board, stating their side of the case. If the results of the inspection and examination indicate that |