The defendant was presented by the grand jury for erecting gates on the King’s highway. The defendant pleaded a license *51from the county court, to which Mr. Attorney demurred, and upon argument, insisted that all gates erected on the highway are nuisances at the common law, and that the county courts here had no power to give license to erect a nuisance. He cited Cro. Ca. 184. See also 1. Inst. 221. 1. Bulst. 203. 2. Rol. Abr. 137. and Hawk. P. C. 199. 9. 212. 50. For the defendant it was urged, there was a great difference between England and this country as to this matter; travellers here are not so numerous nor wheel carriages very common, so that the inconvenience would be but small; and on the other hand, considering the manner of fencing here, a small piece of land would be rendered useless if gates ■were not allowed. It was further urged, that the act of the 4. of Ann. c. 39. did seem to give the county courts a kind of absolute power with respect to roads.
The court were unanimously of opinion that the plea was good.
Reported by Edward Barrada.il, Esq.