
    *Webb v. The Commonwealth.
    June, 1830.
    Mills — Rebuilding—Construction of Statute, — A mill which had been built, and had gone down, prior to the statute of 1819, 2 Rev. Code. ch. 235, § 10, and which was rebuilt after the passing of that statute, is not a mill thereafter built within the meaning of the statute.
    Criminal Law — Presentment—information.—Upon a presentment in a circuit court, for an offence for which the penalty prescribed by law, exceeds not 20 dollars, the court cannot proceed by way of information, but only in a summary way, under the statute 1 Rev. Code, ch. 169, § 65.
    Error to a judgment of the circuit court of Nottoway, against Webb, for a fine of five dollars, and the costs of prosecution. Webb, was presented, in the circuit court, at April term 1827, for grinding grain, and taking toll, at his mill in that county, the mill not being established by order of court, pursuant to provisions of law. A rule was made upon Webb, to shew cause why an information should not be filed upon the presentment; and the rule having been duly served upon him, it was made absolute. An information was accordingly filed, which contained two counts. 1. The first charged, that Webb, being the owner and occupier of a grist mill in Nottoway, which was built without any lawful authority, and never established by order of court, pursuant to law, [without stating when the mill was built] did, within twelve months next preceding the April term 1827 of the circuit court, grind grain brought to the said mill, and did take toll for so grinding. 2. The second count charged, That Webb being the owner of a grist mill in Notto-way, which was built by him in the year 1821, ^without any lawful authority &c. did within the twelve months aforesaid, grind grain for L. W. and T. W. C. brought by them to the said mill, and did take toll for so grinding the same, against the statute &c. Webb pleaded not guilty. The jury found him guilty. He moved the court to set aside the verdict, and order a new trial. The court overruled the motion, and gave judgment against him for a fine of five dollars, and the costs. He filed a bill of exceptions to the opinion of the circuit court overruling his motion for a new trial; and applied to this court for writ of error to the judgment, which was allowed.
    The bill of exceptions sets forth the facts proved at the trial: It was proved, that the defendant did grind grain at his mill for toll, as stated in the information. It was also proved, that those under whom the defendant claims, erected a mill and dam at the same place, more than thirty years before the presentment was made, and used the same as a water grist mill, grinding for toll, until the defendant became owner thereof, and that the defendant used it in like manner. But it was farther proved, that the said old mill from decay of the timbers about the pier-head, and giving way of the dam at its foundation near to the pier-head, as early as the year 1810, became wholly unfit for public use; that by means of puncheons driven down, and clay thrown against them, the dam would hold water for short periods after heavy rains, during which times the defendant had his own grain ground, and at such times would and did grind some grain for a few of his near neighbours, who, from observation of the weather, or information received, could hit the right time; and for such grinding he took toll. These times of grinding were more frequent and lasted longer in the winter, but at no season could it grind with any regularity, and for several years the miller was not kept at the mill, but engaged about the plantation, though generally within hearing of a horn. The 4th July 1818, the dam was broke and the old mill house swept off by a fresh. In the fall of the same year, the defendant commenced getting timber for *the mill house. In 1819, these timbers were framed. In the spring and summer of 1820, the foundation of the house was dug out; the mill race cut; and by Christmas the whole work was nearly completed. In 1821 the mill, much im-' proved, commenced grinding regularly for toll.
    The case was argued at this term by Johnson for the .plaintiff in error; and the attorney general for the commonwealth.
    Johnson shewed, that neither the presentment, nor the first count, charged any violation of law, or offence of any kind. And then, the question was, whether the facts proved at the trial, made good the charge contained in the second count? Whether this was a mill built since the 1st January 1820, within the meaning of the statute?
    
      
      Presentment— Information. — See generally, mono-graphic note on “Indictments, Informations and Presentments” appended to Boyle v. Com., 14 Gratt. 674.
    
    
      
      See 2 Rev. Code, ch. 235, § 10, p. 228. a provision introduced at the revisal of 1819, which took effect the 1st January 1820 — That “no person shall take any toll or other compensation for grinding any grain, at any mill hereafter built, unless such mill be established by order of court, pursuant to the provisions of law; and if any person shall offend herein, he shall forfeit and pay, for every such offence, the sum of five dollars to the commonwealth” &c. This statute (§ 1, 2, 3, 4, 5,) provides for obtaining leave of court to build mills; and § 6 authorizes the rebuilding of mills destroyed, or rendered unfit for public use &c.
    
   SÉMPBE, J-,

delivered the opinion of the court. There is no offence, either at common law or under any statute, laid in the first count of the information. And the second count is not sustained by the facts proved at the trial; for they do not prove, that Webb built his mill since the 1st January 1820, but that he rebuilt an old previous^ existing mill. The judgment might have been reversed, and a new trial ordered, if the circuit court had been authorized by law to proceed by way of information. But the circuit court had no authority to proceed by way of information. The statute for regulating criminal proceedings, 1 Rev. C.ode, ch. 169, fj 65, p. 614, provides, that if on a presentment to a circuit court, the penalty exceed not twenty dollars, no information thereupon shall be filed; but a summons shall be issued against the defendant to answer the presentment; and the court shall, in a summary way, without a jury1-, hear and determine the matter of the presentment, in the form in which it shall have been made, and give judgment thereupon, according to law and the very right of the case &c. Now, the penalty for the offence charged in this case is only five dollars. If the presentment itself charged the plaintiff in error with any offence, so that the circuit *court could proceed to judgment upon it according to law and the very right of the case, without regarding form or want of form, the proceedings might be reversed to the presentment, and the cause remanded to be further proceeded in. But the presentment charges no offence against Webb, and is so defective that no judgment can be pronounced upon it. The judgment, therefore, by the unanimous opinion of the court, is to be wholly reversed, and judgment entered for the plaintiff in error. 
      
      MilIs. — See generally, monographic note on "Mills and Milldams” appended to Calhoun v. Palmer, 8 Gratt. 88.
     