The Revised Statutes provide that a fine shall be imposed upon any town, which "shall neglect to keep any highway therein in good repair and suitable for the travel passing thereon. Rev. Stat. ch. 53 sec.l. The structures complained of had been standing for some years, and if, as the jury have found, they obstructed the safe and convenient use of the highway, it was not "in good repair and suitable for the travel passing thereon.” Winship v. Enfield, 42 N. H. 197; Chamberlain v. Enfield, 43 N. H. 358. And although the charter of the railroad gave it no right to thus obstruct the highway and it might be liable to the city, this would not relieve the latter of its responsibilities and liabilities to individuals and to the public. Troy v. Railroad, 23 N. H. 94; Elliott v. Concord, 27 N. H. 204; Hooksett v. Amoskeag Co., 44 N. H. 109; Palmer v. Portsmouth, 43 N. H. 269; Rev. Stat. ch. 57, sec. 2, ch. 59, sec. 5. We think, therefore, that the instructions were not open to the objection made to them.
The entry of a nolle prosequi before trial is not a bar to a subsequent indictment. 1 Chit. C. L. *480; Wharton C. L. 249; Marston v. Jenness, 11 N. H. 161; State v. Hodgkins, 42 N. H. 476; Commonwealth v. Wheeler, 2 Mass. 172; Commonwealth v. Briggs, 7 Pick. 179. No arrangement between the respondent in the information and the railroad could bar the right of the State to require of the city a performance of its statutory duty in keeping the highway in suitable repair; and as no evidence was offered that the counsel for the State were party to the arrangement, it is unnecessary to inquire whether their concurrence could have added to its legal efficacy. The exception on account of the rejection of the evidence must be overruled, and there must be
Judgment on the verdict.