¶1A majority of the court are of opinion that the exceptions must be sustained. The oleomargarine exposed for *174sale was in the original package, namely, a tub. The only requirement of the statute which applied to it, while there, was that the tub should be marked upon its top, side, and bottom. St. 1886, c. 317, § 1. The tub was so marked, and therefore the letter of the law was complied with. The statute does not say that the tub must be kept covered all the time. It would be construing a penal statute very strongly against the accused to say that the top of the tub, which was to be marked, was not the cover belonging to the tub, but the superficial surface, whatever it might be, which was exposed for the time being, and therefore the oleomargarine itself when the cover was off. The top of the contents of a tub is not called the top of the tub in the common use of language.
¶2We may assume that to sell a tub full, without the cover, would be a breach of the law, because then the tub sold would not be marked on top, as required. But as we understand the facts, this tub had a cover duly marked, although the cover was not on the tub. The rights of the public would have been preserved if the defendant obeyed the law in making sales, as we must presume that he would have done. If he sold the whole tub at once, he would have put on the marked cover. If he sold a less amount by retail, he would have attached a label. Exceptions sustained.