
    * Commonwealth versus Josiah Hall and Others.
    An indictment for erecting “ a number of sheds and buildings, one hundred feet in length and sixteen feet m breadth,” on a public highway, is not sufficient to found a conviction upon.
    Thf defendants were indicted for that they, on the 18th of November, 1816, with force and arms, at Sutton, in the county of Worcester, “in and upon the public road and common highway there, unlawfully and injuriously did erect, build, and put up, a number of wooden sheds and buildings, one hundred feet in length and sixteen feet in breadth; and the same sheds and buildings, so as aforesaid erected, built, and put up, in the public road and common highway there, as aforesaid, they, the said Josiah, &c., from the said 18th of November to the day of the taking of this inquisition, have unlawfully and injuriously continued, and still do continue ; whereby the said public road and common highway was and is greatly obstructed and straitened, and still continues to be so obstructed and straitened; so that the citizens of the said commonwealth cannot pass, &c., through the said public road and common highway, as they ought and were accustomed to do,—to the great damage and common nuisance of all the citizens of said commonwealth, going, &,c.,by and through the said public road, &c., against the peace of the commonwealth, and the laws of the same.”
    After a conviction upon this indictment, the defendants moved in arrest of judgment; because there is not in the indictment a sufficiently particular and definite description of the public road or common highway mentioned in the indictment, with the obstructing and straitening of which the defendants are charged; nor is the length or breadth thereof set forth or alleged.
    
      Hastings and Bigelow, in support of the motion.
    It is not stated, in this indictment, which of the numerous highways in the town of Sutton is obstructed by this supposed nuisance. Neither the length, breadth, nor termini, of the road are given; nor is it alleged that the way was laid out by any competent authority. It may have been a way, "* by permission, over the land of the defendants. It is not averred that the citizens of the commonwealth had a right to pass and repass over this way.
    The nuisance is not sufficiently set forth. “ A number of sheds ” is too indefinite. It should have been alleged how many there were, whether contiguous or detached, &c. 
    
    
      Morton, (Attorney-General,) for the commonwealth.
    The indictment is conformed to the English precedents, as well as to our own. The ancient strictness has been much relaxed in modern times. In indictments for neglecting to sustain highways in repair, the termini of the way must be alleged, or the party charged cannot knew the extent of the charge. But in case of a positive nuisance, as is this now under consideration, the defendants must have known whea and where they had erected the sheds.  The fair construction of the indictment, as to the length of the buildings erected, is that their aggregate length is one hundred feet.
    
      
      
        Hawk P. C. b 1, c. 76, § 87, 88.— c 75, § 5 —7 Mass. Rep. 378, Commonwealth vs. Gower.
      
    
    
      
      
        l D. & E. 570.—1 H. Black. 353.
    
   Parker, C. J.

Several objections have been taken to the indictment in this case. First, it is said that the way in which the nuisance is averred to be erected is not described with sufficient particularity, it not being stated from or to what town in the county it led. But this objection cannot prevail. We think that, as the nuisance is averred to have been erected at Sutton, in the county of Worcester, and the highway is alleged to be there, the way is sufficiently described,

Another objection was, that the length and breadth of the high way said to be obstructed are not averred. But this objection, too must be overruled, it being sufficient to aver that the nuisance was in the highway; and whether such highway was longer or shorter, broader or narrower, is immaterial.

The third objection we think fatal, viz., that the indictment is too loose, in averring that a number of sheds, one hundred feet in length, were erected, without stating what number. This may savor a little of nicety; but, unless * known rules are observed, there will soon be no certainty in indictments. The defendants ought to be able to know what they are called upon to defend against,

Judgment arrested,. 
      
      
        а) In pleading a highway it is unnecessary to set out the termini ; it is sufficient to aver that it is a highway. — 1 Stark. 191, 192 — 2 Stark. Cr. P. 693, and cases there cited.
     
      
      
        Rex vs. Smith, Sayer, R. 98. — Rex, vs. Lidford, Ibid. 167. — Rex vs. Lidford, Ibid 301. — Sed vide 1 Hawk. Ch. 32,
     
      
       1 Stark. Cr. Pl. 196.
     