The opinion of the Court was afterwards delivered by
Parsons, C. J.It is not necessary for the Court to form any opinion as to the first exception taken to the proceedings of the Court of Common Pleas by the counsel for the government; because we are satisfied that the second exception is fatal. The location of the gate, as described in the record, cannot, upon any *102just construction we are able to give the words, be considered as an execution of the power granted to the justices of the Common Pleas by the statute establishing this turnpike. And a new trial is not granted.
The Attorney-General (Sullivan) and Ives for the commonwealth. Hulbert for the defendant.