¶1delivered the opinion of the court.
¶2To constitute a criminal neglect of duty by a road overseer, under our present laws, it is necessary not only that the indictment allege an appointment of the accused as such overseer, and a notice to him thereof, but also that, after such appointment and notice, he suffered his link of road to remain out of repair for more than ten days at one time, unhindered by extreme bad weather or other unavoidable cause. As to an overseer, therefore, he would not be indictable, except for such neglect of duty as he by diligence might have prevented ; and it is not reasonable to be supposed that the legislature, in respect to the same duty by road contractors, would impose a greater burden upon the latter than upon the former. To make a road contractor punishable for the nonrepair of his road before he had time or opportunity to put it in good condition would work inconvenience, and nihil quod est inconveniens est licitv/m. The indictment is defective, and the demurrer to it should have been sustained.
¶3Reversed cmd remanded.