majority">Prekins, J.

Indictment for a nuisance created by obstructing a public highway. Indictment quashed, on the ground that a later statute than that upon which the indictment is based, inflicts a penalty for the offense recoverable at the suit of the road-supervisor, before a justice of the peace. The indictment is grounded on the 65th section of the chapter on crimes and punishments. R. S. 1843, p. 974. The subsequent act, inflicting a penalty, was passed in 1849. Acts 1849, p. 116, s. 121.

We think this latter act furnishes a cumulative remedy, and that either it or the former one may be pursued.

In a note to Sturgeon v. The State, 1 Blackf. 39, it is said, “ Where a statute makes unlawful that which was lawful before, and appoints a specific remedy, that remedy must be pursued and no other; but if the offense were before punishable at common law, then the particular remedy given by the statute is cumulative, and, in such case, either the statutory or common-law remedy may be pursued.”

We think the general provision in our act relative to crimes and punishments stands in the place of the common law in this particular. Kent, in his Commentaries, vol. 1, p. 467, (6 ed.), says: “ The proper inquiry in such cases is, was the doing of the thing for which the penalty is inflicted, lawful or unlawful, before the passing of the statute? If it was no offense before, the party offending is liable to the penalty and to nothing else.”

In this case, the doing of the thing, that is, the obstructing of the highway, was unlawful before the passing of the statute inflicting the penalty; and hence, of course, the statute inflicting the penalty did not create the of*448fense; but, say the books, it is where the statute “creates the offense” and points out a specific remedy, that that remedy must be pursued. This is the general rule, and we see nothing in the case before us indicating an intention on the part of the legislature to make an exception to that rule.

W. M. Franklin, J. L. Ketcham, and N. B. Taylor, for the state.Per Curiam.

The judgment is reversed with costs. Cause remanded, &c.

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