
    The State vs. Mayor and Aldermen of Murfreesboro’.
    1. A town corporation is bound to keep the streets in repair, and if it neglect to do so it may be indicted and fined.
    2. The act chartering a town is a public law which the Courts will judicially notice, and therefore it need not be averred in pleading, or given in evidence to establish the existence of the corporation.
    3. The liability of a town corporation to keep the streets in repair, is not created by the act of incorporation, but exists on common law principles, and therefore a presentment for such offence need not conclude against the statute, but as at common law.
    The presentment is as follows :
    The grand jurors for the State of Tennessee, elected, empanneled, sworn and charged, to enquire for the body of the county aforesaid, upon our oaths present, that within the incorporated limits of the town of Murfreesboro, in said county, there is and for a long time has been, a certain public street and highway, extending from the turnpike road, which leads from said town of Murfreesboro’ to Shelbyville, and intersects the old Shelbyville road at the corporation line of said town of Murfreesboro, along which said public street and highway, the good people of said state and county, have been used and accustomed to pass and repass, with their horses, wagons, carts, and other carriages, at their free will, and pleasure, that the Mayor and Aldermen of the said town of Murfreesboro, whose duty it is to repair and amend said public street and highway, and keep the same clear of obstructions, on the first day of January in the year eighteen hundred and forty-nine, in the county aforesaid, and on divers other days and times before that day, and the day of finding this inquisition, did then and there, and on said other days and times permit and suffer said public street and highway, to be and remain ruinous and out of repair, and obstructed with rocks, gullies, mudholes and other obstructions, so that the good people of said state and county have been hindered and obstructed in passing and repassing, along said public street, and highway with their horses, wagons, carts and other carriages, as they were wont and had a right to do, to the great damage, and common nuisance, of all the people of said town, county and state, and against the peace and dignity of the state.
    And the jurors aforesaid, upon their oaths aforesaid, do further present that there is a certain bridge situated across Murfreesboro spring branch, within the incorporated limits of the town of Murfreesboro, and on a public street and highway in said town, and near to Shanklin’s Tan Yard, over whichsaid bridge the people ofsaidtown, state and county have been used and accustomed to pass and cross, with their horses, wagons, and other carriages, and that the Mayor and Aldermen of the town of Murfreesboro, whose duty it is to repair said bridge, on the first day of January, in the year eighteen hundred and forty nine, in the county aforesaid, did then and there, and on divers other days, and times before that day, and the day of finding this inquisition, permit, and suffer said bridge to be and remain ruinous, and out of repair, so that the people of said town, and county and state, could not pass and cross said bridge, as they were used and accustomed to do, to the great damage and common nuisance of all the good people of said state and county and against the peace and dignity of the State.”
    This presentment was quashed. The State appealed.
    
      Attorney General, for the State.
    
      Keelle, for the Mayor and Aldermen.
   McKinney, J.,

delivered the opinion of the court.

This is a presentment against the Mayor and Aldermen of the town of Murfreesboro’ for failing to keep one of the public streets, within the corporate limits of the town, in repair.

The presentment does not directly aver, that the Mayor and Aldermen of said town are an incorporated body; neither does it state the names of the individuals composing the corporation ; and it concludes as at common law.

The presentment was quashed in the court below; and the question is — did the court err in doing so, for either of the foregoing reasons ?

We think the presentment is sufficient.

1. In the case of the State vs. Barksdale (5. Hum. 154) it was held, that the corporation of a town is bound to keep the streets in repair, and for neglect in doing so, may be indicted and fined; but that the persons composing such corporation are not individually responsible for such neglect.

The corporation is responsible in its corporate capacity. The inhabitants of a parish, in England, may be indicted for not repairing a highway ; or the inhabitants of a county for not repairing a bridge, without naming any of them. 2 Roll. Abr. 79, Archbold Cr. 25. So a corporation aggregate may be indicted by its corporate name. 3 Ad. 8 El. 223, 3 Chitty’s Cr. L. 586-587.

2. The indictment or presentment need not, in terms, aver that the Mayor and Aldermen are an incorporated body. The charter of incorporation is a public law, which the courts will judicially notice ; and, therefore, it need not either be averred in pleading, or given in evidence on the trial, to establish the existence of the corporation.

3. The liability of the corporation to keep the streets in repair, is not created by the charter of incorporation, but exists upon general principles of the common law; and, therefore, the conclusion of the indictment, as at common law, is proper-.

The judgment will be reversed.  