
    Bennet and Bennet against Hurd.
    ALBANY,
    August, 1808.
    In an action for a penalty under the 35th section of ‘the act to regulate highways,’ the plaintiff need not negative the proviso, in his declaration.
    ON certiorari. The action below was brought on the 35th section of “ the act to regulate highways,” (vol 1. p. 602.) for obstructing the Susquehannah river. On the return to the certiorari, the principal objection was,- that the plaintiff in his declaration had not negatived the right of the defendant under the proviso.
    
    
      Sherwood, for the plaintiff in error,
    cited the case of Blasdale v. Hewitt, (3 Caines, 137.)
    [Kent, Ch. J. That case is so stated, that it is impossible to say on what ground it was decided by the court.]
    
      H. Bleecker, for the defendant in error.
   Per Curiam.

The proviso in the 35th section, on which the suit was brought, formed no part of the plaintiff’s title, but merely furnished matter of excuse for the defendant. It provides that persons erecting mills on the rivers declared to be public highways, and cutting canals for the use of the mills, so as not to injure the navigation, shall not be liable to the penalties of the act. It was not necessary, therefore, for the plaintiff to negative this proviso in his declaration.

Judgment affirmed.  