The sufficiency of the charge must depend either on the common law, or our own municipal acts.
At common law, there was no such office as county commissioners, and therefore under it, the indictment cannot be supported.
The first act of assembly respecting the erection of bridges, seems to be that of 1700. 1 Dall. St. Laws, 19. It directs, that the county .courts, with the concurrence of the grand juries, shall appoint and agree with persons to build bridges, to be paid for out of the county stock.
The act of 15th August 1732, changes the law, and declares, that the grand juries, commissioners and assessors with the concurrence of the justices of the General Quarter Sessions of the Peace shall be the sole judges where any bridge shall be built, and the commissioners, assessors and justices shall agree with workmen, &c. The commissioners acting judicially, under this law, are equally dispunishable with a grand jury, for refusing to agree to the building of a bridge. They are bound by the duties of their office, to exercise a sound discretion, when such matters come before them.
The late act of nth April 1799, takes away the discretion of the commissioners, but directs the requisite steps to be taken in the building of bridges at the county expense. This law is expressly confined to future cases, to bridges to be erected or repaired, on any public road. A petition must be given in to the sessions, stating the place, and circumstances of the case, with the probable expense. The court shall give the petition in charge to the grand jury, who shall consider of the propriety of erecting or repairing the bridge prayed for. And if the court *and jury shall approve thereof, the court shall make [*4 an order, &c.
In the present instance, the bridge was finished before the law was enacted, and even before the presentment of the grand jury, in November 1798, and it was absolutely impracticable under the circumstances of the case, to render the law applicable thereto. Under this act therefore, the prosecution cannot be supported. And it is unnecessary to give any opinion on the point made, respecting the indictment being found in the Court of Oyer and Terminer. But the court have no difficulty in saying, that if the present case had been clearly within the provisions of the act of 1799, the commissioners would be punishable *4by indictment for neglect of duty, against the positive words of a law.
If the legislature had been less particular in the penning of this act, it would be a dangerous precedent, to subject a county to pay for bridges, erected by individuals at their own will and for their own emolument, without the previous approbation of the public constituted authorities. Other interested persons would follow the example, and it would soon become a general evil.
Verdicts non cul.