
    Commonwealth versus Ezekiel Gowen.
    An indictment lies for a nuisance on a town-way.
    In an indictment for a nuisance on a public way, it is not necessary to allege the continuance of such nuisance to be with force and arms.
    The defendant was indicted at the last May term in this county, for that he, on, &c., at, &c., “ with force and arms, in and upon a certain town-way there legally laid out, accepted, and established as a town-way of the said town of Shapleigh, (which way leads and extends from the dwelling-house of Q. Ham, to the dwelling-house of A. Dragdon, in said S.,) did unlawfully and injuriously put, place, and erect a certain fence, in, upon, and across the highway aforesaid ; and the same fence did then and there unlawfully and injuriously continue, and suffer to be and remain from, &e., to the day of the finding of this bill; whereby the way aforesaid, for and during the whole time aforesaid, was wholly obstructed, so that the citizens of the commonwealth were prevented from passing and repassing, &c., as they have a right, and have been wont to do ; to the great injury and common nuisance of all the citizens of said commonwealth having occasion to pass, repass, and use the way aforesaid, against the peace and dignity of the commonwealth, and contrary to the form of the statute in such case made and provided.”
    * At the last October term in this county, the de- [ * 37® ] fendant was tried and convicted ; after which he moved in arrest of judgment, assigning the following reasons, viz.
    
    “1. It does not appear by said indictment that the defendant is charged with any offence by law indictable.
    2. The way mentioned in said indictment, for the obstruction of which the defendant is charged, is not particularly nor definitely described.
    3. The defendant is indicted for erecting a nuisance on a town-way.
    
    4. The way mentioned in said indictment does not appear to be a public highway.
    
    5. It does not appear that the continuance of the same nuisance on said way was with force and arms.”
    
    
      Holmes, in support of the motion,
    insisted that no indictment lies for a nuisance, except for one erected on a public highway, laid out for the use of the citizens of the commonwealth at large ; whereas a town-way was for the accommodation of the inhabitants of the town only, and no indictment lies for its interruption. He contended also that the description of the way, as contained in the indictment, was wholly insufficient, inasmuch as it might not include the whole of the way. And he held the indictment defective, in not charging the continuance of the nuisance to be with force and arms.
    
      Davis, solicitor-general,
    cited the statutes of 1786, c. 67, § 7, and 1786, c. 81, <§> 6, in both which encumbrances on town-ways are considered as nuisances, and are made liable to presentment by the grand jury. The indictment alleges that all the citizens of the commonwealth have a right to pass and repass in this way, and the verdict finds all the allegations in the indictment to be true. As to the description of the way, it was sufficient to say that no evidence could be received of any encumbrance, but such as was between the termini mentioned in the indictment. As to the continuance being laid without alleging it to be with [ 380 ] force * and arms, it was a sufficient answer to this objection, that so are all the precedents.
   And of this opinion was the Court; and so the defendant took nothing by his motion.  