delivered the opinion of the Court. — The respondent was indicted for an offence under the 4th section of the *142act directing the appointment of turnpike inspectors and regulating their office and duty. The oflence charged against him is for shutting a gate on the Wiiliamstown Centre Turnpike, which had been opened by the said inspectors. The respondent was found guilty, filed a motion in arrest of judgement, which was overruled. Exceptions were taken to the opinion of the court in overruling the motion, and on those exceptions the cause was passed to this Court.

The general principles in relation to indictments, gathered from cases decided, are found in most of the elementary treatises on criminal law. Those which have any application to this case are the following: Every indictment must state all such facts and circumstances as constitute the offence ; and when the act complained of becomes a crime only from its peculiar relations or circumstances, and without them would not be unlawful, then those circumstances or relations should be set forth in the indictment. And when in a statute there are provisos or exceptions in distinct clauses, they are to be taken advantage of by the person accused in defence, and need not be anticipated in the indictment by stating that he does not come within the proviso or exception. But where exceptions are in the enacting clause, it must appear in the charge that the respondent does not come within them. The aet charged against the respondent of shutting the gate was not necessarily unlawful. It only became so from its connection with other circumstances, viz. that it had been lawfully opened by the turnpike inspectors, and should have remained open at the time it was shut by him. And if it was lawfully opened, the shutting the gate was not an offence, except it was shut without the permission of the inspectors or the judges of the county court. In any indictment for an offence under this act, such facts should be distinctly set forth as will shew that the gate wras lawfully set open, and that it was shut without authority.

The statute under which this indictment was found makes it the duty of the inspectors, if they find any turnpike road “ not in such repair as it reasonably ought to be,” “ to order such repairs to be made on such road as they shall deem just and reasonable.” This is the first step to be taken by them, and all their after proceedings have relation to this order. The extent of the duty required of the owners of the road is ascertained by this order,and to enforce a compliance with it,they may either set open, and take effectual measures to keep open, any or all the gates on said road, or they may give to the corporation owning the road *143a reasonable time to comply with the order before opening the gates, as the inspectors may think just and reasonable. When this order is made, and the gates are set open, by the inspectors, it then becomes criminal in any one to shut them without their permission or the permission of two judges of the county court in the same county. It is essential to an indictment for this ofFence that it should be charged that the inspectors made an order for the repair of the road ; that they set open the gates and directed them to be continued open until the repairs by them ordered were made, and that the person or persons indicted shut the gate without the permission either of the inspectors or of two judges of the county court of the county where the gate was situated.

In the indictment against the respondent it is not alleged that any such order was made by the inspectors. This is a material defect in the indictment and is not cured by the verdict. It was necessary that the inspectors should have decided what repairs were required, and ordered that the same be made by the corporation. This order should have been set forth in the indictment. It is alleged that the said inspectors “ did adjudge the said turnpike road to be not in such repair as it reasonably ought to be,” and that they set open the gate and made their order that it “ should continue open and no toll be taken until the said road should be put in repair agreeably to the charter of the said turnpike road and until leave should be had from the said inspectors to shut the same. If this is a correct statement of the proceedings of the inspectors it is manifest that they were wholly illegal. Without ordering any particular repairs to be made,they direct that the gate shall be shut until the road was repaired agreeably to the charter, and until permission was obtained from them, leaving it vague and uncertain what was to be done by the corporation, and excluding altogether the permission to shut the gates which the statute contemplates may be obtained from the judges of the county court.

We are satisfied that the offence is not charged in this indictment with that certainty and accuracy which is requisite, and that the order made by the inspectors, if correctly described in the indictment, is not conformable to the statute.

The judgement of the county court is reversed, and the judgement on the indictment must be arrested.