(after stating the facts). We think the defendants were entitled to the instructions asked for, and that the *391error in refusing to give them was not cured by the charge given. The law does not require or contemplate that the commissioners shall personally superintend the fences and keep them in repair. They are required to make all regulations, and to do all other things necessary to carry into effect the provisions of the chapter of The Code relating to the stock law; The Code, §2826; and in doing this, they could hardly do more than was covered by the instructions asked for by the defendants. The act to prevent live stock from running at large in Goldsboro township, chapter 115, §10, Laws of 1885, authorizes and directs a committee of persons named therein to cause a fence to be built around the township in the manner, prescribed in the act, and to report to the board of commissionersand then §14 directs, that after the committee shall have reported the completion of the fence, it shall be under the control and management of the board of commissioners, and they shall discharge with reference to said fence and the territory therein all the duties prescribed in chapter twenty of The Code, relating to territory where the stock law prevails. §2826 of The Code, already referred to, defines their powers and duties, and the instruction asked for, was in effect, that if the jury should be satisfied that the defendants had made proper regulations to carry into effect the provisions of the law, then they should find a verdict of not guilty.
But after verdict of guilty, we think the motion- in arrest of judgment should have been allowed.
The indictment charges that the defendants “ unlawfully and wilfully, did fail, omit and neglect to cause to be put up, and to keep up, a good and sufficient fence, and good and sufficient gates, about and around the territory within said county in which, under chapter 115 of the Laws of the session of the year 1885; of the General Assembly of the State, entitled ‘ An act to prevent live stock from running at large in Goldsboro township, Wayne county,’ and the sev*392•eral acts of said General Assembly hereinafter named amend-atory of said act, it was, then and there, for the space of time aforesaid, and yet is, required to be enclosed by a good and •sufficient fence, with good and sufficient gates thereto, to the common nuisance and great damage of the good people of the State then and there living, residing and inhabiting, .against the form of the statute in such cases made and provided ; and especially in violation of said first named act of the General Assembly aforesaid, and of the acts passed at the said session of the year 1885 by the General Assembly, amendatory of the said first named act, to wit: chapters 192, 242, and 287, of the Laws of the General Assembly,” &c.
Nowhere in any of- the acts referred to, is it made the duty of the defendants “to cause to be put up, and to keep up, .a good and sufficient fence,” <&c.
It may be that the bad condition of the fence was the consequence of a failure on the part of the commissioners to “ make all regulations,” <fec., necessary, as required by §2826 • of The Code, to carry the law into effect, but they were not obliged, by their own exertions, to build or repair the fences. “They are only to use the means to that end which the law has placed in their power,” and if by reason of their failure to use the means given to them by the statute, if by any omission of their duty, the public suffer, they may be indicted, but the indictment must point out the particular public duty neglected — must “ set out the specific duty imposed upon them, which they have neglected;'' State v. Fishblate, 83 N. C., 654, and the authorities there cited, are conclusive on this point.
There is error. Let this opinion be certified to the Superior Court of Wayne county, that further proceedings may be had in conformity to this opinion.
Error. Reversed.