
    [Sunbury,
    June 28, 1824.]
    KELLY against The COMMONWEALTH.
    IN ERROR.
    The obstruction of a highway is indictable at common law, and not under the act of assembly of 6th of April, 1802; which inflicts an additional punishment for a distinct offence, viz: for not removing the nuisance on notice from the supervisors of the township. In a prosecution, therefore, for running a fence across a public road, it is not necessary to prove,1 that notice to remove it, and repair the damage, was given by the supervisors to the defendant.
    The plaintiff in error, William C. Kelly, was indicted in the Court oi Quarter Sessions of Mifflin county, for a nuisance, in obstructing the highway, by erecting a fence across it. The jury returned a special verdict, by which they found, that no notice had been given to the defendant by the supervisors of the township to remoye the nuisance, or repair the damage ; and if the defendant could be legally convicted without such notice, they found him guilty; otherwise not guilty.
    The opinion of the Court of Quarter Sessions being, that upon the facts found, the indictment might he sustained, the record was removed to this court by writ of error.
    
      Hale, for the plaintiff in error,
    argued, that as penal laws were to be strictly construed, and the fifteenth section of the act of 6th of April, 1802, Purd. Dig. 591, imposed a penalty on the offender for not removing the nuisance, or repairing the damage, upon receiving notice from the supervisor of the proper township, proof of such notice, was necessary to support the indictment,
    
      Alexander, for the commonwealth,
    contended, that the offence charged, did not fall within the act of 6th of April, 1802, which related only to roads laid out by order of the Court of Quarter Sessions, while the road in question was laid out by virtue of an act of assembly. And further, that this act was intended to punish, not the erection of a nuisance, but the not removing it. The offence for which the plaintiff in error was indicted, was a nuisance at common law.
   The opinion of the court was delivered by

Til&hman, C. J.

This is an indictment for a nuisance, in obstructing a highway in the county of Mifflin, by running a fence across it. The jury found, that no notice had been given to the defendant by the supervisors of the township, to remove the nuisance, or repair the damage, and submitted to the court, whether, under these circumstances, he was guilty, or not. His counsel contend, that he is not guilty, and rely on the 15th section of the act of 6th of Jipril, 1802; (3 Sm. L. 512,) by which it is enacted, that if any person shall obstruct any highway, or commit any nuisance thereon, by felling trees, making fences, or turning the road, or by any other way, whereby the road or highway may suffer damage, and do not, on notice given by the supervisor of the proper township, remove the nuisance, or repair the damage forthwith, he shall, for every such offence, be fined in a sum not exceeding 40 dollars, nor less than 10 dollars, as the ease may require, to be recovered before one of the nearest justices of the peace of the proper county,” &c. And by the act of 28th of March, 1808, (4 Sm. L. 531,) the several Courts of Quarter Session, are vested with concurrent jurisdiction with the justices of the peace.

The obstruction of a highway is an offence at common law, which the act of Jipril, 1802, did not extinguish, but inflicted an additional punishment, for a distinct offence, viz: for not removing the nuisance on notice from the supervisors. The erection of a fence, is one thing, and the not removing it, on notice, another. And it was for the punishment of the latter, that the act of assembly was made. But it is inconceivable, that it was intended to do away the offence of a nuisance, in all cases where the offender had not neglected to remove it, on notice; because'inconvenience might be experienced, from the running of fences, or falling of trees across a road, before the supervisors came to the knowledge of it, and in such cases, the offenders ought not to escape punishment, although they removed the nuisance on notice from the supervisors. It is the opinion of the court, that the offence at common law remains, and the punishment inflicted by the act of assembly is cumulative, or rather, it is a punishment for a different offence.

The judgment of the Court of Quarter Sessions is affirmed.  