June, 1829.

#### The State v. Neil Shaw.

rom Cumberland.

An indictment on the acts of 1798 anil 1816, (Tira. chs. SOI and 906} prohibiting the retailing of liquor by a measure less than a quart, which charges the retailing to be “ by the small measure,” is defective — the words “ tes than a quart,” should be superadded to the description of the offence.

The Defendant was indicted for retailing spirituous-liquors without a license, in the following manner;

The Jurors for, &c. on &c. pre^nt that JV, S of &c. on he. and. divers other days 8tc. in ike. did refciil spirituous liquor by the small •measure without having a license according to law, contrary &c.

After a verdict for the Slate, his honor Judge Daniei, on the motion of the Defendant’s Counsel, arrested the. judgment, because the indictment charged a retailing by the small measure generally, without showing what the measure called small was, or in any manner describing a sale by quantities less than a quart, except by the word sin all, which his Honor thought too indefinite 5 whereupon Mr. Solicitor Troy, for the State, appealed to this Court.

The case was argued by Badger, for the State. No Counsel appeared for the Defendant.

Hall, Judge.

I think the Judge in the Court below was correct, in thinking the words of the indictment, describing the offence charged, were too indefinite.

The act of 1798, (Rev. eh. 501,) enacts that any person undertaking to sell spirituous liquors by the small measure, or by any other ways or means, where the quantity is less than a qvart, shall forfeit forty-eight shillings, and shall be further liable to presentment or indictment for the same offence.

The. act of 1816, (Rev. ch. 906) enacts, that if any person shall retail spirituous liquors by the small measure, contrary to the true inteutaud meaning of that act without license, &c. he shall be subject to indictment.

*199Now the word small is a relative term. We cannot decide whether a thing ys great or small, without comparing it with something else. And win n we use the words small measure, we have no distinct idea of their meaning, without a comparison with some other measure. In the presen; case, when the indictment uses the words small measure, we do not judicially know its precise. import, unless we had before us some standard measure to compare it with. If the retailing was charged in the indictment to be by a measure less than a quart, which the act of 1798 declares lo be the standard by which a small measure is ascertained, we could understand with legal certainly, that the Defendant was charged with selling spirituous liquors by a measure prohibited by these acts, and which they declare to be an indictable offence.

I therefore think the judgment of the Superior Court should be affirmed.

Per. Curiam. — Let the judgment below he affirmed.