
    [Lancaster,
    May 16, 1825.]
    The COMMONWEALTH against DEMUTH and others.
    IN ERROR.
    if there are pleas to an indictment of mtrefoits acquit, and not guilty, the formelf issue should be first tried.
    If a jury is charged with both these pleas at once, and the verdict is guilty in manner and form, &c. no judgment can be rendered, as there is no verdict on one of the pleas.
    If an act of assembly direct the president, managers, and company of a turnpike .road, to remove a gate, the persons who are president and managers are not individually liable to indictment, if the direction is not performed.
    By a writ of error to the Court of Quarter Sessions of York county, the indictment and proceedings against John Demuth, president, and twelve other defendants, managers of the York and Gettysburg turnpike road, were removed to this court.
    The indictment contained five counts, the first four of which charged the defendants, as president and managers of the York and Gettysburg turnpike road, &e. The fifth count charged that the defendants, on the 10th day of October, in the year 1821, in Bottstown, in West Manchester township, in the county aforesaid, within one half mile of the borough of York, in the county aforesaid,'and within the jurisdiction of this court, with force and arms, injuriously and unlawfully did lock, fasten, and chain, and did cause to be locked, fastened, and chained, a certain toll-gate, be-... fore that time made, erected, and placed upon and across the said turnpike road, at the place last aforesaid, to' certain gate posts, before the said tenth day of October, in the year last aforesaid, made, erected, and placed in and upon the said turnpike road, at the place last aforesaid, and the said last mentioned gate, so locked, fastened, and chained as aforesaid, to the said last mentioned gate posts, from the said tenth day of October, in the year last aforesaid, until the day of this inquisition, with force and arms at Bottstown aforesaid, in West Manchester township aforesaid, within one half mile of the borough of York aforesaid, and within the jurisdiction of this court, the defendants unlawfully and injuriously did continue and still do continue, so locked, fastened, and chained, as aforesaid, to the great obstruction, annoyance, hindrance, and'common nuisance of the- citizens of this commonwealth along the said York and Gettysburg turnpike road, with their cattle,.horses, and carriages, passing and repassing,, to the evil example of all others in like case offending, and against the peace and dignity of the commonwealth of Pennsylvania.
    
    The defendants pleaded not guilty, and autrejbits acquit. The attorney general replied ne autrcfoiis acquit, and a jury being called, found that “the defendants are guilty in manner and form as they stand indicted. On motion, the court below arrested the judgment.
    
      Wright, for the commonwealth,
    relied on the act of the 31st of March, 1821, Pamph. Laws, 187.
    
      Hopkins, for the defendant in error.
    By the act of the 11th of March, ISIS, Pamph. 122, section 4, the managers of the York and Gettysburg turnpike road, are authorized to make a turnpike road from the west end of the borough of York, the nearest and best route to.Getty shirg, and are vested with like powers, &c. as were given to the Susquehanna and York borough turnpike road company, passed the 19th of March, 1804. By the latter act, section 12, when the persons appointed by the governor to view the road shall have reported to him, he shall by by license under his hand, &c. permit; the president, managers, and company to erect and fix “ so many gates or turnpikes upon and across the said road, as will be necessary and sufficient to collect the toll and duties from all persons travelling on the same with horses, &c.” Section 16 enacts the mode of proceeding, if the company shall neglect to keep the road in good and perfect order, for five days, first before a justice, and next the Court of Quarter Sessions, against the persons intrusted by the company with the super-intendahee of that part of the road out of repair. So that the fixing of gates is left to the discretion of the company.
    1. The act of the 31st of March, 1821, is unconstitutional and void. It invades the rights given to the company by charter. If the gate in Bottstown is put down, the most valuable interests of the company will be destroyed. The rights of a corporation are as valid as those of an individual.
    
      2. No indictment will lie against a corporation at common law, or by statute, unless so provided by the statute enacting it. If the keeping up of this gate be an offence, it should be prosecuted, not by indictment, but in the manner prescribed by the law. No man can be indicted for a nuisance on a turnpike road. The company-are answerable for all nuisances, and must take on them to punish wrong-doers. In considering the fifth count, in which the offence is laid at common law, the court must look to the rest of the indictment with which it is connected. . In the first four counts, the defendants are charged as president and managers of the company. In the fifth they are charged individually,, and the court cannot shut their eyes on the fact, that they are still president and managers. This count refers to the former, by the words — the said turnpike road, If the 5th count is supposed to be altogether a distinct matter, it is error to join it with the matter of the other four counts; for if the defendants have been guilty of an offence, as members of the corporation-, the judgment against them would he different from a judgment at common law. The act of the 21st of March, 1806, 4 8m. Laws, 332, sect. 13, provides that when a particular mode of proceeding is pointed out by the act of assembly, there shall be no proceeding at common law.
    Further: This cause was tried under pleas of autrefoits acquit and not guilty. The former plea should have been tried by the court, but it was tried by the jury. This was a mistrial. At any rate, if both could be tried by jury, the jury cannot be charged with both at once. Capt. Roche’s Case, 1 Leach’s Crim. Lawf 125.
    
   The opinion of the court was delivered by

TíRohman, C. J.

This is an indictment against John Demuth, the president, and twelve others, managers„of the York and Gettysburg turnpike road company, for keeping a toll-gate in Bottstown, on the said turnpike road, within half a mile of the borough of York, on the 10th day of October, in the year 1821, and afterwards.- The indictment contains five counts, in the four first of which the defendants are mentioned in their corporate capacity, and are proceeded against for having kept Up the said toll-gate, contrary to an act of assembly passed the 21st day of March, in the year 1821, (Pamph. Laws, 187.) The fifth count charges the defendants individually, and is altogether at common law, no mention being made of the act of assembly. The defendants pleaded, not guilty, and autrefoits acquit, on both which pleas issues were joined. The verdict was, “ that the defendants are guilty in manner and form as they stand indicted.” And, upon motion of the defendant’s counsel, it was adjudged by the Court of Quarter Sessions of Ydrk County, that the judgment should be arrested-.

The jury ought not to have been charged with both these issues at once, because, if they found for the defendant, on this plea of autrefoits acquit, no further trial ought to have been had. A former acquittal was a bar to the present indictrnent. But as they were charged with both, they should have given a verdict on both. Judgment could not go against the defendants, until there was a finding against them on the plea of autrefoits acquit. The jury found only that the defendant was guilty in manner and form, &c., which was no answer to the issue of autrefoits acquit. There was evidently, therefore, a mistrial. But, independently of that, exceptions were taken to the indictment, It-is unnecessary to say any thing of the four first counts, as the counsel for the commonwealth has abandoned them, and relies On the fifth only. This is a count at common law; and it appears to me not to be good. It charges the defendants with locking and fastening, on the 10th of October, 1S21, a certain toll-gate, before that time made, erected, and placed across the said turnpike road last aforesaid, to certain gate posts, before the said 10th day of October, in the year last aforesaid, made, erected, and placed, in and upon the said turnpike road, at Bottstown, in West Manchester township, and, within half a mile of the borough of York, and keeping the said gate locked and fastened to the said gate posts, from the said 10th day of October, in the year last aforesaid, until the day of the inquisition.” Now, it appears to the court, that the York and Gettysburg turnpike company were incorporated by an act of assembly, passed the 11th of March, 1815, and had authority to erect toll-gates, on any part of the road west of the borough of York, — so that unless some other act of assembly made it unlawful, there could be no offence in erecting the gate in Bottstown, (lying west of the borough of York,) which is the object of the indictment. There was, in fact, another act of assembly, passed the 21st of March, 1821, by which there was a prohibition to erect or set up, in future, any toll-gate on the York and Gettysburg turnpike road, within half a mile of the borough of York', and the president, managers, and company of the said turnpike road, were directed to remove the gate then standing in Bottstown, (the gate now in question,) within six months after the passing of the said act, to a distance not less than half a mile from the borough of York. ■ It is-plain enough, that it was upon this act of assembly, the last count of the indictment was intended to be framed, although there is no mention made of the act, nor is it alleged, that the offence was in violation of it. But I do not perceive, that the defendants, individually, were guilty of any offence. They had a right, as president and managers of the company, to erect the gate at Botts-town under the act of incorporation; and the company in their corporate capacity, and not the defendants individually, were ordered to remove that gate, by the act of the 21st of March, 1821. So that, without entering into any question concerning the constitutionality of the last act, it is the opinion of the court, that the indictment was insufficient, and therefore the judgment was properly arrested.

Judgment affirmed.  