delivered the opinion of tlie Court,
This writ of error is prosecuted to reverse an order of the Christian Circuit Court, quashing an indictment against the defendants in error, as Trustees of the town of Hopkinsville, for permitting the Main street in said town to be obstructed by piles of wood, and divers quan. titles of rubbish, &c.
Trustees of towns are authorized by statute, (2 Stat. Laws. 1506,) to cause the streets to be cleaned and repaired by the inhabitants thereof; and the act further provides, that if they, the inhabitants, or any of them, shall re*',Jse to clean and repair the part of said streets assigned them, it shall be lawful for said Trustees, or a tna- . „ , , , . , , . . . „ . , jority ol them, to hire the cleaning and repairing of said streets, and levy the price thereof on the person or persons so failing and-refusing, &c. ° °
Ample power is thus given the t,Trustees of towns to cause the streets thereof to be kept clean and in repair, and having the power, it is very clearly their duty to use it. And for their failure to do so, and- to cause the streets *39to be kept in repair, there can be no doubt, we apprehend, that they would be subject to be proceeded against by indictment and punished.
As the punishment of trustees of towns for failing to cause the sts. to be lcept in repair is fine and imprisonment, this court has no jurisdiction since the statute of 1841, to revise a judgment of the circuit court in such cases except at the instance of the defendant. Cates, Attorney General, for Commonwealth; N. E. Gray for defendants.But as there is no statutory provision authorising such proceeding and prescribing the punishment, the indictment in this case can only be sustained as an indictment at common law, and such it was evidently intended to be. The offence charged in the indictment, is for suffering a nuisance in a public street, which, as we have seen, it was the duty of the Trustees to have had abated or removed At common law such an offence is punishable by fine and imprisonment: (2 Chit. Crim. Law, 343, and authorities there cited;) (1 Salkeld, 359; 1 Hawkins ; Pleas of the Crown, 695.) And as this Court has no jurisdiction in a criminal or penal case, in which imprisonment constitutes any part of the punishment for the offence charged, except in behalf of a defendant against whom judgment has been rendered, as provided by the act of 1841, it follows that the judgment of the Circuit Court in the case before us, although in our opinion erroneous, cannot be revised by this Court.
Wherefore, the writ of error must be quashed for want of jurisdiction in this Court.