¶1(dissenting):
¶2Aside from the statute, the defendant had, of course, the right to deface any thing on his own tubs. The simple question then is, whether he violated the statute. And that depends on this: whether the painting of the maker’s name on a tub and the cutting of marks thereon with a chisel are “ branding.”
¶3The word “ brand ” itself shows its meaning. It is a piece of wood burning, or partly burnt — hence, a mark made by burning with a hot metal. Excluding the poetical and figurative use of the word, I find no definition which does not include the idea of burning. (See Webster’s Dictionary and Richardson’s Dictionary.)
¶4In modern times the branding of articles has, to some extent, given place to the marking them by means of a stencil plate. But neither such marking, nor the cutting of characters with a chisel, is branding.
¶5The statute is penal and “ can not be extended by implication or construction to cases within the mischief, if they are not, at the same time within the terms of the act fairly and reasonably interpreted.” (Verona Cheese Co. v. Murtaugh, 50 N. Y., 317.)
¶6It is quite possible that the legislature may have intended to require this peculiarly permanent kind of marking. If they had intended to permit other kinds, they would have said “ mark or brand.” This is the language which they did use in regard to bales of hay (Sess. Laws 1860, chap. 155.) And again, in chapter 415 (Sess. Laws 1877): “ Shall distinctly and durably stamp, brand or mark upon every tub,” etc. Thus they have showed their knowledge of the meaning of this word “ brand.” So the sealers of weights are to “ seal and mark,” thus being allowed to use any proper kind of marking. And the witness Culver, in this case, who made the tubs, testifies : “ I did not brand them, either name or weight.” Erom which it appears that he, too, understood that while a brand might be a mark, yet every mark was not a brand.
¶7In my opinion then, the stenciled name was not a “ brand,” and more plainly the chisel cuts, supposed to indicate weight, were not “ brands.”
¶8There is, I think, another defect. It appears that the only marking supposed to indicate weight was “ with two parallel, perpendicular lines,” It does not appear that there was any thing marked *577on tbe tubs to show that these two lines indicated tbe weight. They might stand for pints, or pounds, or ounces, or the day of the month. The statute requires the branding with “the true and actual weight.” Two parallel perpendicular lines, without any thing more, do not mean two or eleven pounds.
¶9We have nothing to do with the defendant’s supposed intent to defraud. He is civilly liable for any fraud. We have only to inquire whether he altered or defaced a “ brand ” made under the direction of that statute. I think that he did not, and that the judgment should be reversed.
¶10Judgment affirmed, with costs.