The opinion of the court was delivered by

Two questions are presented, by the exceptions, for our decision. First, whether the discontinuance of that part of the road which was out of repair, made by the selectmen of Fletcher, pending this prosecution, had the effect to defeat the prosecution, and entitle the defendants to an acquittal ? Second, whether there is a material variance between the description of the highway, as given in the indictment, and the proof relating to it, which was adduced on trial ?

As to'the first question, it is clear that the burden of making and repairing highways is a duty of legal obligation upon the several towns ; and, therefore, the neglect of that duty must be a fault and delinquency of the town so neglecting. This fault is, by statute, made punishable as a species of crime or misdemeanor. The guilt is contracted, at once, upon the neglect, and, in analogy to other cases, should only be expiated by punishment or pardon. It is probably true, however, that it was always necessary that the highway should continue to exist, as such, at the time of the indictment, for so are all the forms ; and this has been especially required of late, since the fine imposed has been appropriated, by statute, to the repair of the same road which is indicted. But we do not think that a prosecution, rightfully commenced, can be entirely defeated by a subsequent discontinuance of the road. The necessity of a fine is, indeed, obviated by it, as it it would be by a thorough repair of the-road pending the prosecution. The case is not analogous to the unconditional repeal of a penal statute, pending a prosecution under it.

In relation to the second question, it appears that the indictment describes the road as leading southerly, through the town of Fletcher, to and across the north line of Cambridge. It was in proof that no line of Cambridge was truly a north line of the town, and that the line through which the road in question entered that town, was more nearly a west than a north line of the town, and that it was generally called the west line. This line, however, is a southerly line to the greater *129part of Fairfield, and a northerly line to a portion of the town of Cambridge. Thus far it may be fairly insisted that the evidence did create a variance, and were this the only, or principal matter of description, the variance would be fatal. But this is by no means the only or principal description given. The road is alleged to enter the town of Fletcher, from Fairfield, near the dwelling-house of an individual named,to pass by two houses of individuals named, and to pass through the town, into Cambridge in a southerly direction. These are, by far,the more decisive parts of the description, and appear to have been fully satisfied by the evidence on trial. ' I am not aware that, in in this case, more than in civil cases, a description, which proves to be repugnant is, in every instance, fatal. The general rule is, that the more controlling and certain parts of the description shall prevail over those which are less so. And, since the ground of supposed variance cannot apply to that part of the road which was affected by the prosecution, we are satisfied that, for the present purpose, it is not substantial or important.

Judgment, that the exceptions be overruled, and judgment is rendered on the verdict.

Fine assessed one cent.