Commonwealth versus The Proprietors of Newburyport Bridge.
Where an act creating a corporation to build a bridge and allowing three years for the completion of the bridge, prescribed that it should be built with a draw and piers, and the corporation erected the bridge and took toll for more than a year, without building any piers, it was held, that they were liable to indictment for such neglect, although the three years had not elapsed.
An indictment, reciting that an act to incorporate the proprietors of a bridge required that there should be a draw, and a pier on each side of the bridge at the draw, and then alleging that the defendants have neglected to provide a suitable pier “ on each side of the said bridge at the said draw, but have left the said bridge altogether destitute of any pier at the said draw,” was held to be defective, because it contained no direct averment that a bridge had been built.
The indictment in this case recites, that by a statute passed March 4th, 1826, (Si. 1825, c. 164,) James Prince and others were incorporated by the name of The Proprietors of the Newburyport Bridge, and that by the second section it is enacted, that there shall be a draw not less than thirty-eight *145feet wide, and a suitable pier on each side of the bridge at the draw. The indictment then alleges, that the defendants, on and from the 1st of January, 1828, to the taking of this inquisition, “ have neglected and still do neglect to provide a suitable pier on each side of the said bridge at the said draw, according to the requirement of the act aforesaid, but have left the said bridge altogether destitute of any pier at the said draw, by means whereof all vessels and river craft, having masts higher than will readily pass under the said draw, are obstructed, hindered, and altogether prevented from passing said bridge, to the common nuisance,” &c.
At the trial, before Putnam J., the defendants objected that the indictment was found too soon, inasmuch as the three years allowed them by the act, for completing the bridge, had not expired when the indictment was found. They admitted that they had taken toll of passengers for upwards of a year. The objection was overruled.
A verdict against the defendants was taken, subject to the opinion of the whole Court.
The defendants also moved in arrest of judgment, because it is not alleged in the indictment that any bridge had been built.
Choatt and Cushing, for the defendants.
•Minot, County Attorney, for the commonwealth.
Per Curiam.
The answer to the first objection is, that the defendants completed the bridge and took toll ; and if so, we think they were bound to provide the means prescribed by the statute, to enable vessels to pass with convenience through the draw.
But we think the objection, that the indictment does not allege that any bridge has been built, is fatal. It may indeed be inferred by any common reader, that there was a bridge ; but no lawyer, considering that inferences are not to be made in criminal cases, would say it appears that a bridge had been built. There ought to have been an express allegation to that effect.
Indictment quashed.