
    Commonwealth versus The Inhabitants of North Brookfield.
    An indictment against the town of N. B. for not repairing a highway, alleged that there was a highway leading from a meetinghouse in the town of B, to the dividing line between B. and N. B. and thence in N. B. to the meetinghouse in N. B., and that the defendants allowed “ a certain part thereof, consisting of twenty rods in length,*’ to be out of repair. Held, that the indictment was defective, inasmuch as it was left uncertain in which of the towns the unrepaired part of the highway lay.
    This was an indictment, in which it was alleged, that there was “ a certain common and public highway and town road in the town of North Brookfield in' said county, leading and passing from the Baptist meetinghouse in the town of Brookfield to the dividing line between the towns of Brookfield and North Brookfield, and thence in said North Brookfield by the dwelling of the widow Converse to the North Brookfield meetinghouse, &c. which said public highway and town road the inhabitants of the town of North Brookfield &c. are bound &c. to make, maintain, &c. and that the said inhabitants &c. did &e. and still do suffer, permit and allow a certain part thereof, consisting of twenty rods in length and two rods in breadth, to be deeply covered over with the waters of the pond, &c. so that the same cannot be used and enjoyed by the citizens &c. for a common highway,” &c. to the common nuisance, &c.
    
      Sept. 30th.
    
    
      Oct. 6th.
    
    At the trial, the defendants objected to the sufficiency of the indictment, and the jury having found a verdict against the de fendants, the question was reserved for the consideration of the whole Court.
    
      J. Davis and Allen,
    in support of the objection, cited Rex v. Hartford, Cowp. 111.
    Merrick, for the Commonwealth.
   Per Curiam.

We think it very clear, that there is a defect in the description of the road, which is fatal to the indictment.

It is averred, that there is a public way and town road in the town of North Brookfield, leading and passing from the Baptist meetinghouse in the town of Brookfield to the dividing line between the towns of Brookfield and North Brookfield, and thence in North Brookfield by the dwellinghouse of the widow Converse to the North Brookfield meetinghouse. And then it is averred, that the inhabitants of North Brookfield did permit and allow a certain part thereof, to wit, twenty rods, &c. to be out of repair. - A certain part of what ? Of a road described ; which is partly in Brookfield and partly in North Brookfield ; leaving it wholly uncertain, in which of the towns the unrepaired part of the road is. It should have been averred that a certain part thereof, lying in North Brookfield, &c. This objection being taken at the trial, the verdict must be set aside and the defendants discharged.  