Gilchrist, J.
The Rev. Stat., chap. 53, sec. 1, describe five different cases of neglect for which towns may become liable to fines. The first is described thus : “ If any town shall unreasonably neglect to make and put in good repair any new highway laid out therein.” The second, “ If any town shall unreasonably neglect to alter and put in good repair any highway which has been widened and straightened*therein.” The third, “If any town shall unreasonably neglect to grade the hills in any highway therein agreeably to the judgment of the court of common pleas.” The fourth, “ If any town shall neglect to cause any dangerous causeway or embankment in any highway therein to be securely l’ailed.” The fifth, “ If any town shall neglect to keep any highway therein in good repair and suitable for the travel passing thereon.”
It is quite plain that this statute, in as many different clauses, defines five distinct offences for which towns may be fined, and the court have only to inquire whether either and which of these is described in the indictment, and whether the evidence offered is competent to prove that offence.
No question is made, nor does there appear any just ground for question, that the information describes the fifth and last named of the offences. It alleges that “there was and still is the highway,” “used by all the good citizens to pass and repass with their horses, carriages, and teams,” and that the same was “ rocky, rutty, broken, uneven, ruinous and in great decay, so that citizens could not pass and repass as they used, were wont and ought to do.”
It is wholly impossible by any construction of language, to hold that these words describe the offence named in the first clause, of unreasonably neglecting “ to make and put in good repair any new highway ” laid out in the town. The existence of a highway “ used by all the good citizens ” is clearly alleged, and is as clearly referred to in representing the road as in a state of decay, so that persons could not “ pass and repass as they used and were wont to do.”
Now the evidence was clearly inapplicable to this charge in the information. It showed indeed that the defendants could not"be guilty of the offence, because it disproved the existence of a state of facts necessary for the commission of such an offence. Or in other words, it established a fatal variance between the offence charged and the one proved.
We have arrived at this conclusion with reluctance, and because impelled to it by our views of the law and our duty consequent thereon. The case is one of hardship to the petitioners and to the public. That a wealthy town, after a full hearing and a judgment of the court that a road should be made, should compel the public prosecutor to array them as criminals before the bar of the court of common pleas, is sufficiently strange. But that with no hope or power of reversing the decision of the court laying out the highway, and merely for the purpose of delay, they should so strenuously set themselves against the public interest as evidenced by the doings of an impartial committee, is still more surprising. The moral sense of the community frowns upon an individual who interposes the law for the mere purposes of delay, and why should a town be freed from that censui’e which is visited upon every citizen in such case ?
But the town of Walpole is not singular. Towns too often do this; and we make these suggestions, impelled by the experience we have had of the bad effects of such delays.
Judgment reversed.