We think the indictment is defective. The exception taken on the motion is well founded. The statute (Paschal’s Dig., Art. 5070, p. 849) directs that “the overseers shall measure such parts of roads as fall within their respective precincts or districts, in continuation, and to set up posts at the end of each mile leading from the court-house, or some noted place or town, and to mark the said posts in large legible figures the distance in miles to said court-house or other noted place.” The penalty-annexed is for failure to put up such posts thus marked within six months after their appointment. The indictment simply charges, that the defendant, as overseer of precinct Ro. 5 of a public road, leading from the town of Dallas, in the county of Dallas, to the county line of said Dallas county, in the direction of the town of Alton. This charge may all be true, and yet the defendant may not be guilty of any omission of duty. Suppose there should be some noted place, or town, at some intermediate point on the public road mentioned, between the town of Dallas and the county line indicated in describing the public road, and the overseer had put up such mile-post, marking the distance from such town or noted place, this would certainly be a compliance with the law, exonerating him from the penalty of the act, while it might be^rue he had not done ■what was charged in the indictment. This fact ought to have been negatived by some allegation or charge in the indictment. We would further say, in passing, in reference to one of the exceptions of the appellee, that the penalty does not attach to the failure or neglect to meas*508ure the miles, but for failure to set up the mile-posts. He may know the distances without measurement, as is sometimes known from the position of posts formerly set up. And it is immaterial how he arrives at the distances, provided he sets up the mile-posts as' directed. But the first exception was sufficient to quash the indictment. The judgment of the court below is therefore

Affirmed.