
    STATE v. FRANCIS NIXON and others.
    
    
      An indictment under the statute, Rev. Oode, chapter 71, section 7, against a mill-owner for keeping a false toll-dish, is not sustained by proof that he took one-sixth part of each half bushel of corn with a half gallon toll-dish, (that being the true measure of the toll-dish under the act.)
    INDICTMENT for keeping a false toll-disk, tried before Dick, J., at the last Spring Term of Perquimons Superior Court.
    The indictment is as follows :
    “ Superior Court of Law, Eall Term, 1857.
    “The jurors for the State, upon their oath, present, that Francis Nixon, Nathan Winslow, Benjamin Skinner, Tris-tram L. Skinner, and Edward Ward, late of the said county, on the first day of January, in the, year of our Lord 1857, and on divers other days and times, between that day and the day of the taking of this inquisition, at and in the county aforesaid, were possessed of, and did keep, a certain public mill, and do still possess and keep the said public mill, situate in or near the town of Hertford, for the purpose of grinding for toll, wheat and corn ; and that during all the time aforesaid, in the county aforesaid, the said defendants did unlawfully keep false tolLclishes at the said mill, by which false toll-dishes, the good people of the said State were compelled to pay, then and there, and did pay, then and there, to the said defendants, more than lawful toll for the corn and wheat then and there ground, and that the said defendants did, then and there, unlawfully receive of the good people of the State more than lawful toll, to wit, one-sixth of the corn, then and there ground, contrary to the form of the statute, &c.”
    Upon the trial, the jury returned a special verdict, as follows:
    “The jurors, &c., find that the defendants, for more than two years before the finding of the bill, and up to the finding, were proprietors in possession of, and keeping, and using, a steam-mill for sawing lumber and grinding grain in Perqui-mons county ; that during this time, they kept for the use of the mill, two measures, a half bushel, and a peck measure, and also kept a lialf gallon measure, used for a toll-dish, and no other toll-dish either for wheat, corn or chopped grain ; that these measures held what they purported to contain; that the defendants took from their customers, as toll, one-sixth part of corn, and one-eighth, of wheat, and measured off the toll in their half gallon measure, both from a peck and half bushel; that this rate of toll was fully known and understood in the county, and to all the customers of the mill; that this rate of toll lias been the established rate at that mill for more than six years.
    Whether upon these facts the defendants are guilty, the jury are unadvised,” &c.
    The Court, being of opinion against the State, upon this finding, gave judgment for the defendants, from which the solicitor for the State appealed.
    
      Attorney General, for the State.
    
      Smith and Jordan, for the defendants.
   Pearson, J.

Eor the construction of the statute in regard to mills, see State v. Perry, (ante 252,) decided at this term.

The defendants are indicted for keeping a false toll-dish. The only measure used for that purpose was a half gallon. This by dry measure,” is the eighth part of a half bushel, which is the measure of the toll-dish, required by the statute. So, the proof does not sustain the charge. The defendants are liable to the penalty for taking the sixth of the corn. Ilow they managed to take a sixth by means of the half gallon measure, is not stated ; whether it was by not “ striking” even, or heaping the measure and guessing at the intended quantity, does not appear, and we are not at liberty to express an opinion as to Avhether they are liable at common law. We are confined to the offense charged in the bill of indictment. There is no error.

Pee CubiaM, Judgment affirmed.  