taken by weight or measure at the option of the miller and custo

mer.

Code, s. 1848; 1885, c. 202; R. C., c. 71, s. 7; 1777, c. 122, s. 11.
NOTE. Keeping false toll-dishes a misdemeanor, see s. 3679.

EVIDENCE.-Evidence that a mill owner kept a measure containing oneseventh, and another one-sixth of a half-bushel, with which he openly took toll of all customers, is sufficient to support an indictment for taking more toll than he had a right to take. Perry, 50 (5 Jones), 252.

INDICTMENT.—An allegation that the mill was one where a false toll-dish was used to exact more toll than was lawful is a sufficient averment that the mill was one used for grinding wheat and corn, though that fact must appear in some way with sufficient certainty. Perry, 50 (5 Jones), 252.

MINERAL WATERS AND BEVERAGES.

Sec. 716. Dealers in, protected.

SECTION 1. That any and all persons, partnerships or bodies corporate, engaged in manufacturing, bottling, selling or dealing in mineral, soda or aerated waters, beer, lager-beer, milk or other beverages, in kegs, boxes, trays, crates, bottles, syphons, barrels, casks, or in any other vessels, with his, her, its or their name or names or other marks or devices printed, branded, stamped, stenciled, engraved, etched, blown, impressed or otherwise produced upon such kegs, boxes, trays, crates, bottles, syphons, barrels, casks, or any other vessels, or upon labels pasted on such kegs, boxes, trays, crates, bottles, syphons, barrels, casks, or such other vessels, shall file with the clerk of the superior court of the county in which his, her, its, or their principal office or place of business (or in the case of a foreign corporation, its principal office or place of business or agency) is located, a description of the name or names, marks, labels or devices so used by him, her, it or them respectively, and cause such description to be printed twice a week for two successive weeks in some daily newspaper published in said county, if there be a daily newspaper published therein, and if not, then in some newspaper published in said county once a week for two successive weeks. The description of the name or names, marks or devices, before being filed as aforesaid, shall be signed by the person or persons filing the same, or in case of a partnership, by one or more of the partners, or in case of a corporation, by one of its officers or managers, and shall be acknowledged by the person or persons signing the same as the act of the said person or persons, or if the said person or persons sign the same for a partnership or corpora

tion, as the act of said partnership or corporation, before any person or officer competent to take acknowledgement of deeds. The publication hereby required need only be a brief description sufficient for identification, of such name, names, marks, labels or devices, and need not contain a certified copy of the acknowledg The provisions of this act shall apply to all bottles, kegs, boxes, trays, crates, syphons, barrels, casks, or any other vessels upon which said name or names, marks, labels or devices shall appear as aforesaid, whether or not any of the same shall be in existence at the time of said filing and publication.

ment.

SEC. 2. The several clerks of the superior courts mentioned in the preceding section shall record in some book of record in their custody, respectively, all such descriptions filed with them, and also copies of the said advertisement in the newspaper certified to by the publishers of the said newspapers in which the same had been published, and said respective clerks shall furnish copies thereof, duly certified by them in the usual manner, to any person who may apply therefor, and shall receive for such recording of such copies a fee of fifty cents; and the certified copy of said descriptions and of the said advertisement and the said certificate of the said publishers of the said newspapers, when certified to under the hand of the clerk with whom the same are recorded, with the seal of his office attached, shall be evidence that the provisions of the preceding section have been complied with, and shall be prima facie evidence of the title of the person, persons, partnership or body corporate named therein, to the said kegs, boxes, trays, crates, bottles, syphons, barrels, casks, or any of the other vessels upon which the name, names, marks, labels or devices of such person, persons, partnership or body corporate, may appear as described in said description.

SEC. 3. After any person, persons, partnership or body corporate shall have filed and published his, her, its or their description of such name, names, marks or devices, in accordance with the preceding provisions of this act, it is hereby declared to be unlawful for any and all other persons, partnerships, and bodies rorporate to fill in any way kegs, boxes, trays, crates, bottles, syphons, barrels, casks or any other vessels upon which such name, or names, or other marks, labels or devices, shall be printed, branded, stamped, stenciled, engraved, etched, blown, impressed, or otherwise produced, with mineral, soda or aerated waters, beer, porter, ale, cider, ginger-ale, small beer, lager-beer, milk, or other beverages, or to deface, erase, obliterate, cover up or otherwise

remove or conceal any such name or names or other marks, labels or devices thereon, with intent to convert the same to his or her use, or to have on sale, offer for sale, buy, sell, take, give, receive, handle in the course of business, hire, rent, lend, transport, carry in wagons, carts, push-carts or other vehicles, or to take or collect from ash or garbage receptacles, or from public or private dumps, cellars, yards, lots or premises, or to keep in stock or otherwise store or otherwise dispose of or deal or traffic in same or any thereof, or any parts or pieces of the same or any thereof, without the written consent of the person, persons, partnership or body corporate whose name or names, or other marks, labels or devices, shall be or shall have been in or upon said kegs, boxes, trays, crates, bottles, syphons, barrels, casks or other vessels, or to willfully break destroy, or otherwise injure any of the articles mentioned in this section. And any person, persons, partnership or body corporate who shall do any of the acts declared to be unlawful by this section shall be deemed guilty of a misdemeanor, and upon conviction thereof shall be punished for the first offense by imprisonment of not less than ten days or more than one year, or by a fine of three dollars, for each of such kegs, casks or barrels, and one dollar for each of such boxes, trays, crates, bottles, syphons, or any other vessel so unlawfully used, filled, kept on sale, or offered for sale, sold, bought, given, taken, received, handled in the course of business, hired, rented, lent, transported, carried in wagons, carts, pushcarts, or vehicles of any kind, or taken or collected from ash or garbage receptacles, or from public or private dumps, cellars, yards, lots or premises, or kept in stock or otherwise stored or otherwise disposed of, dealt in or trafficked in; and for the second offense and subsequent offenses, by imprisonment for not less than twenty days or more than one year, or by a fine of not less than two dollars or more than five dollars for each of said kegs, casks, barrels, trays, crates, bottles, syphons, or any other vessels so unlawfully used and filled, kept on sale, offered for sale, sold, bought, given, taken, received, handled in the course of business, hired, rented, lent, transported, carried in any wagons, carts, push-carts, or vehicles of any kind, or taken or collected from ash or garbage receptacles, or from public or private dumps, cellars, yards, lots, or premises, or kept in stock or otherwise stored, or otherwise disposed of, dealt in or trafficked in, or by both such fine and imprisonment, at the discretion of the court or justice of the peace before whom such offense is tried. In the event of a fine or fines being imposed by any court or justice of the peace for any offenses under this act, one-half

thereof shall go to the state and one-half to the informer, to be collected as other fines are collected: Provided, this section shall apply to such bottles, kegs and other vessels as the bottler charges his customers or purchasers for at the time of sale of the goods. SEC. 4. If any person shall be found to be in possession of any one or more of the kegs, boxes, trays, crates, bottles, syphons, barrels, casks, or any other vessels mentioned in section one of this act, or any part or parts thereof, and the person or persons, partnership or body corporate, the name or names, marks or devices of whom have been placed thereon by any of the methods mentioned in the said section, have complied with the provisions of this act, and the persons so found to be in possession thereof shall be charged with any of the offenses mentioned in section three of this act, then such possession shall be prima facie evidence that such person is guilty of such offenses so charged: Provided, this section shall not apply to bottlers who receive such bottles, cases, kegs and other packages in the course of business and mixed and exchanged in shipment, when such bottler within a reasonable time notifies the owners thereof of the location thereof. SEC. 5. If the owner or owners of any such keg, box, tray, crate, bottle, syphon, barrel, cask, or any other vessel mentioned in section one of this act, who has or have complied with the provisions of such section, or his, her, its or their officer, agent or employee shall make an affidavit before any justice of the peace asserting that he, she, it or they, has or have reason to believe, and does or do believe that any person or persons, or body corporate, is or are in actual or constructive possession of, or is or are making use of any one or more of any such articles above mentioned, or any parts thereof, or in any way declared to be unlawful by section three of this act, the said justice of the peace may issue his search warrant to any sheriff, deputy sheriff, constable, or any other officer of the law to whom such warrant may be directed, and cause the premises designated in the warrant to be searched as in other cases in which such warrants are issued in accordance with the law of this state; and if one or more of any of such articles above mentioned, or any parts of the same, shall be found in, upon, or about the premises so designated, the officer executing such search warrant shall thereupon report the same, under his oath, to the said justice of the peace, who shall thereupon, upon said report and upon the oath of any person or persons charging any violations of section three of this article, issue his warrant for the arrest of the said person or persons against whom such charge or charges shall

be made, and cause him or them, together with such articles, to be brought before him for trial.

SEC. 6. The several justices of the peace in the respective counties of this state shall have concurrent jurisdiction with the superior courts of their respective counties in the case of persons arrested for violation of the provisions of section three of this act, and such respective justices of the peace shall proceed to hear and determine such cases when the parties arrested on the charges of such violations are brought before them respectively, in all cases where the punishment fixed in this act such as to give said justices of the peace jurisdiction under the constitution and laws of this state. And if such person or persons shall be found to be guilty of the violation of any of the provisions of this act, the court trying such person or persons and imposing the punishment herein prescribed shall also award possession to the owner of all the property involved in such violation.

SEC. 7. The requiring, taking or accepting of any deposit for any purpose upon any keg, box, tray, crate, bottle, syphon, barrel, cask, or any other vessel, shall not be deemed to constitute a sale of such property, either optional, conditional or otherwise, in any proceedings under this act.

SEC. 8. Any person or persons, partnerships, or body corporate that has or have heretofore filed and published a descripiton of his, her, its or their name or names, marks or devices for the purposes mentioned in section one of this act, in accordance with the law existing at the time of such filing and publication, shall not be required to again file such description, but shall be entitled to all the benefits of this act as fully as if he, she, it or they had complied with all the provisions thereof.

SEC. 9. The provisions of this act shall not apply to any person who has taken, given, received or is using such kegs, boxes, trays, crates, bottles, syphons, barrels, casks, or any other vessels for consumption of the mineral, soda or aerated waters, beer, porter, ale, cider, ginger-ale, small beer, lager-beer, milk or other beverages placed therein by the owners, or who after consumption of said contents, is in possession of the same, while awaiting the return to the owners, nor shall the provisions of this act apply to any garbage man collecting the same in the regular course of his business: Provided, this act shall not apply to beer and mineral water bottles shipped into this state from other states.

1907, c. 901.