Mr. Just. FOSTER. We are obliged to follow settled and established rules already fixed by former determinations in cases of the same kind. The case of Rex v. Wilders was a strong case, too strong, perhaps, for there were false tokens; the vessels were marked as containing a greater quantity than they really did.

Mr. Just. WILMOT concurred. This matter has been fully settled and established, and upon a reasonable foot. The true distinction that ought to be attended to in all cases of this kind, and which will solve them all, is this, That in such impositions or deceits, where common prudence may guard persons against the suffering from them, the offence is not indictable, but the party is left to his civil remedy for the redress of the injury that has been done him; but where false weights and measures are used, or false tokens produced, or such methods taken to cheat and deceive as people cannot, by any ordinary care or prudence, be guarded against, there it is an offence indictable.

In the case of Rex v. Pinkney, P. 6 G. 2 B. R., upon an indictment "for selling a sack of corn (at Rippon market) which he falsely affirmed to contain a Winchester bushel, ubi reverâ et infacto plurimum deficiebat, &c.," the indictment was quashed upon motion.

In the case now before us, the prosecutor might have measured the liquor before he accepted it, and it was his own indolence and negligence if he did not. Therefore common prudence might have guarded him against suffering any inconvenience by the defendant's offering him less than he had contracted for.

This was the case of Rex v. Pinkney; and it was there said, That if a shop-keeper who deals in cloth pretends to sell ten yards of cloth, but instead of ten yards bought of him, delivers only six, yet the buyer cannot indict him for delivering only six; because he might have measured it, and seen whether it held out as it ought to do, or not. In this case of Rex v. Pinkney, and also in the case of Rex v. Combrun, a case of Rex v. Nicholson, at the sittings before Lord RAYMOND after Michaelmas term, 4 G. 2, was mentioned; which was an indictment for selling six chaldron of coals, which ought to contain thirty-six bushels each, and delivering six bushels short. Lord RAYMOND was so clear in it that he ordered the defendant to be acquitted. PER CUR. unanimously,

The judgment must be arrested.1

1 See Rex v. Osborn, 3 Burr. 1697; Com. v. Warren, 6 Mass. 72. — ED.

SECTION III.

Public Torts.

COMMONWEALTH v. ECKERT.

COURT OF QUARTER SESSIONS, PENNSYLVANIA, 1812.

[Reported 2 Browne, 249.]

THE defendant was indicted for a misdemeanor, in cutting and deadening a black-walnut tree, on the common, or public ground, adjoining the village of Hanover, the property of which was vested in certain trustees, for the use of the inhabitants of said town, by deed from the original owner of the land.

Bowie, for the defendant. It is a rule in morality, as well as in charity, to apply an innocent motive, rather than a malicious one, to have actuated the defendant. A crime or misdemeanor indictable, must be a violation of some known public law. 4 Bl. Com. 5; 1 Hawk. P. C. 366, 7, sect. 1. Act of Assembly against taking off or breaking knockers on doors, spouts, &c., breaking down or destroying signs, &c. Read Dig. 7, Act of 1772. These were offences not indictable at common law; and therefore the necessity of the statute. A number of cases of a private nature are not indictable. 2 Hawk. P. C. 301. Such as breaking closes, &c. 3 Burr. 1698. Cases that apply to individuals or to a parish are not indictable, and there is no difference in this case from that of six, eight, or ten tenants in common of a property; and one of the number cutting a tree, an indictment could not be supported against him that did the act.

PER CURIAM, FRANKLIN, President, to the jury:

The defendant is charged with a misdemeanor, in cutting and deadening a black-walnut tree, standing on public ground adjoining the town of Hanover, which ground appears to be vested by deed in certain trustees, for the use and benefit of all the inhabitants of said town. This tree was kept and appropriated, by the people of that place, for shade and ornament.

The doctrine on subjects of this kind is well laid down by the late Chief Justice McKean. 1 Dall. 335. Whatever amounts to a public wrong, as killing a horse, poisoning chickens, and the like, is the subject of an indictment for a misdemeanor.

Malice forms the guilt of the indictment. Any evil design, proceeding from a depraved or wicked heart.

If you should consider the tree was useful for public convenience, ornament, and shade (which we think has been fully proved), you may convict the defendant; if not, acquit him.1 Verdict, Guilty.

1 See Resp. v. Powell, 1 Dall. (Pa.) 47.

REX v. RICHARDS.

KING'S BENCH. 1800.

[Reported 8 T. R. 634.]

THIS was an indictment against the defendants for not repairing a road. The indictment stated that by virtue of an act of parliament, 31 Geo. 3., intitled "an act for draining and dividing a certain moor or tract of waste land called King's sedgmore in the county of Somerset" it was enacted that certain commissioners therein named should before making any allotments of the said moor set out and appoint such private roads and drove-ways over the same as in the judgment of the said commissioners should be necessary and convenient; and that all private roads and ways so to be set out should be made and repaired at the expense of all or any of the persons interested in the said moor and in such manner as the said commissioners should direct; that certain commissioners under the act in execution of the powers thereby vested in them by their award set out and appointed a certain private road and drove-way in over and upon the said moor to be a private road and drove-way to be called Henley Drove-way (describing it); that the said commissioners also awarded that the said drove-way should be for the benefit use and enjoyment of the several owners tenants and occupiers for the time being of all and singular the tenements in the several parishes or hamlets of Highham Lowham Aller Pitney Long Sutton Huish Episcopi Butleigh Ashcott and Greinton in the said county in respect whereof and of the rights of common severally appurtenant thereto the divisions and allotments of the said moor were thereby assigned and allotted unto the same parishes or hamlets respectively; that the said commissioners thereby ordered and directed that the said drove-way should for ever thereafter be repaired by the several owners tenants and occupiers for the time being of all and singular the tenements in the several parishes or hamlets of Highham Lowham Aller Pitney Long Sutton and Huish Episcopi in respect whereof and of the rights of common severally appurtenant thereto the divisions and allotments of the moor were thereby assigned and allotted unto the same parishes or hamlets respectively in equal shares and proportions, when and so often as need should be &c; by reason whereof the said private road and drove-way became and was a private road and drove-way for the purposes above mentioned, and by virtue of the said act and of the said award liable for ever hereafter to be from time to time amended and kept in repair in the manner and by the means aforesaid; that on &c. the said way, called Henley Drove-Way, was ruinous and in decay for want of needful reparation thereof; that J. Richards late of Highham, and the five other defendants, (describing them respectively as of the parishes of Lowham, Aller, Pitney, Long Sutton, and Huish Episcopi) being severally and respectively owners tenants and occupiers of certain tenements in the several

parishes or hamlets of Highham Lowham Aller Pitney Long Sutton and Huish Episcopi, in respect whereof and of the rights of common severally appurtenant thereto the divisions and allotments of the said moor were thereby assigned unto the same parishes or hamlets, and being persons interested in the said moor, and by virtue of the premises liable to keep in repair and amend the said drove-way, had not duly repaired and amended the same &c. The defendants pleaded not guilty; and on the trial at the last assizes at Bridgewater before Mr. Justice GROSE the jury found a special verdict. When this case was called on in the paper for argument, The Court asked the prosecutor's counsel on what ground it could be contended that this was an indictable offence, the road in question being only a private road?

Praed, for the prosecutor, answered that this though a private road was set out by virtue of a public act of parliament, under which the defendants were directed to repair it; that consequently the not repairing was a disobedience of a public statute, and therefore the subject of an indictment. That this might be considered to a certain degree as concerning the public; that even "a private act of parliament may De given in evidence without comparing it with the record, if it concern a whole county, as the act of Bedford Levels." 12 Mod. 216. And that there was no other remedy than the present, because it appeared by the special verdict that there were no less than two hundred and fifty persons who were liable to the repair of this road, and that the difficulty of suing so many persons together was almost insuperable.

But the Court interposed, and said that, however convenient it might be that the defendants should be indicted, there was no legal ground on which this indictment could be supported. That the known rule was that those matters only that concerned the public were the subject of an indictment. That the road in question being described to be a private road did not concern the public, nor was of a public nature, but merely concerned the individuals who had a right to use it. That the question was not varied by the circumstance that many individuals were liable to repair, or that many others were entitled to the benefit of it; that each party injured might bring his action against those on whom the duty was thrown. That the circumstance of this road having been set out under a public act of parliament did not make the non-repair of it an indictable offence; that many public acts are passed which regulate private rights, but that it never was conceived that an indictment lay on that account for an infringement of such rights. That here the act was passed for a private purpose, that of dividing and allotting the estates of certain individuals. That even if it were true that there was no remedy by action the consequence would not follow that an indictment could be supported; but that in truth the parties injured had another legal remedy.

Judgment for the defendants.

1 The special verdict is omitted. - ED.

COMMONWEALTH v. KING.

SUPREME JUDICIAL COURT OF MASSACHUSETTS. 1847.

[Reported 13 Met. 115.]

THE indictment, in this case, alleged that there was a common and public highway in the town of Sutton, called the Old Central Turnpike, and that the defendant, on the 1st of August 1846, "did unlawfully and injuriously put, place, lay and continue a large quantity of stones, in and upon a part of said highway, to wit, upon a space thereof ten rods long and one rod wide, and the said stones, so placed as aforesaid, he the said Wm. King, from said first day of August, until the finding of this bill, unlawfully and injuriously did keep, continue and maintain, in and upon said highway, whereby the same has been, during all the time aforesaid, and still is, greatly narrowed, obstructed and stopped up," &c. "against the peace," &c. "and contrary to the form of the statute in such case made and provided.'

991

Dewey, J. . . . The next enquiry is, whether the facts alleged constitute an offence at common law. Upon this point we have no doubt. By the location of a public highway, with certain defined exterior limits, the public acquire an easement coëxtensive with the limits of such highway. Whoever obstructs the full enjoyment of that easement, by making deposits, within such limits of the located highway, of timber, stones or other things, to remain there and occupy a portion of such public highway, is guilty of a nuisance at common law.

It was contended by the counsel for the defendant, that the rights of the public are confined exclusively to the made or travelled road, or to that part which might be safely and properly used for travelling; and that a deposit of timber, stones or other articles, upon a part of the located highway, which, from its want of adaptation to use for travel, could not be thus enjoyed, as a portion of the way on which there was a high bank, or a deep ravine, — would not subject the party to an indictment for a nuisance upon the highway. This principle is supposed to be sanctioned by the decisions of this court in reference to the rights of travellers, holding that such travellers are to use the travelled or made road, and that if such road is of suitable width, and kept in proper repair, the town may have fully discharged its duty, although it has not made and kept in repair a road of the entire width of the iocated highway. But there is a manifest distinction between the two cases. In the case supposed, the traveller has all the benefits of a public way secured to him. He only requires a road of proper width, and kept in good repair. But the town, on the other hand, to enable itself to discharge its obligation to the public, requires the full and

1 Only so much of the case as involves the question of a nuisance at common law is given. - ED.