Commissioners under an inclo sure act not empowered to throw the repair of private roads on the parish. Award under habitants, and that it was kept in repair by them, and was then so: and in several parts of the act the roads were described as leading from, to, and through, particular towns; but when it mentioned the town in question, it only said, to and from the town, omitting the word "through.” (n) i The commissioners appointed by the 6 Geo. 3. c. 78. (an act for dividing and inclosing certain lands in the parish of Cottingham) which enacted, that the public roads to be set out by them should be repaired in such manner as other public roads are by law to be repaired, and that the private roads should be repaired by such person or persons as they should award, have no power to impose on the parish at large the burden of repairing any of the private roads set out in pursuance of the act. (o) Upon an indictment against the parish of Haslingfield, for not repairing a highway, an award made by commissioners under an inclosure act, which awarded the highway to be in a different parish, was holden not to be admissible evidence for the defendants, without shewing that the commissioners had given notices which the act required to be given previously to the boundaries having been ascertained by them; it appearing that the usage had not been pursuant to the award; the defendants having since the award, as well as before, repaired the highway. The learned Judge who tried this case reported that he should have had no difficulty in admitting the award, and, if the usage had been pursuant to it, presuming that the proper notices had been given. (p) We may now shortly consider the modes of proceeding by which persons guilty of these nuisances to highways may be prosecuted. Proceedings Nuisances or annoyances to highways, whether positive, in the against parties nature of actual obstructions, or negative, by the defect of proper guilty of nuisances in high-reparations, may be made the subject of indictment, which is the/ ways by indict- more usual course of proceeding. And the 13 Geo. 3. c. 78. s. 24. ment, present- enacts that "every justice of assize, justices of the counties pala"tine of Chester, Lancaster, and Durham, and of the great ses"sions in Wales, shall have authority by this statute, upon his ment, or information. 66 or their own view, and every justice of the peace, either upon "his own view or upon information upon oath to him given by any surveyor of the highways, to make presentment at their re"spective assizes, or great sessions, or in the open general quar"ter sessions, of such respective limit of any highway, causeway, "or bridge, not well and sufficiently repaired and amended, or of 66 any other default or offence committed and done contrary to the "provision and intent of this statute; and that all defects in the "repair thereof shall be presented in such jurisdiction where the same do lie, and not elsewhere; and that no such presentment, sance is. And "nor any indictment for any such default or offence, shall be no presentment removed by certiorari, or otherwise, out of such jurisdiction, "till such indictment or presentment be traversed, and judgment Presentment to be in the jurisdiction where the nui or indictment to be removed by certiorari. 66 (n) Hammond v. Brewer, 1 Burr. R. 376. and see Rex v. Gamlingay, post, 330. and Rex v. Harrow, 4 Burr. 2091. (0) Rex v. the Inhabitants of Cot tingham, 6 T. R. 20. (p) Rex v. the Inhabitants of Haslingfield, 2 M. and S. 558. 66 ment. "thereupon given, except where the duty or obligation of repair"ing the said highways, causeways, or bridges, may come in question; and that every such presentment made by any such i “justice of assize, counties palatine, great sessions, or of the peace, upon his own view, or upon such information having "been given to such justice of the peace upon the oath of such "surveyor of the highways as aforesaid, shall be as good, and of "the same force, strength, and effect in the law, as if the same "had been presented and found by the oaths of twelve men ; and Fines may be "that for every such default or offence so presented as aforesaid, such presentassessed upon "the justices of assize, counties palatine, and great sessions, at "their respective courts, and the justices of the peace at their general quarter sessions, shall have authority to assess such fines as to them shall be thought meet: saving to every person and persons that shall be affected by any such presentment, his, her, 66 or their lawful traverse to the same presentment, as well with "respect to the fact of non-repair as to the duty or obligation of 66 repairing the said highways, as they might have had upon any "indictment of the same presented and found by a grand jury; "and the justices of the peace, at their general quarter sessions, Expenses of "or the major part of them, may, if they see just cause, direct prosecution upon such pre"the prosecutions upon such presentments as shall be made at sentments. "the quarter sessions as aforesaid to be carried on at the general 66 expense of such limit, and to be paid out of the general rates "within the same." Right of tracase of present verse saved in ment. Another mode of proceeding is by information, which may be Information. granted by the Court of King's Bench at their discretion. But they will not grant an information to compel a parish to repair a highway which is not much used; and when it appears that another highway, equally convenient to the public, is in good repair. And indeed they never give leave to file an information for not repairing a highway, unless it appear that the grand jury have been guilty of gross misbehaviour in not finding a bill; and they refuse it for this reason, that the fine set on conviction upon an information cannot be expended in the repair of the highway, whereas on an indictment it is always so expended. (q) an indictment or present Though it is often stated in indictments or presentments for Of the form of nuisances to highways, that "from time whereof the memory of "man is not to the contrary," or, "from time immemorial," ment.(r) there was and is a common and ancient king's highway, yet it is not necessary to do so; for it is sufficient to state in a compendious manner that it is a highway.(s) And though it is usual to state the termini of the highway, it is said not to be necessary; on the ground that a public highway is intended to go through all the realm, and to lead from sea to sea (b) But if the termini are stated, it seems they must be substantially proved, according to the statement: (c) and the road must in general, (if described at all,) be described correctly. Thus, where a highway leading from A. to C., not passing through B., though communicating with it by means of a cross road, was described as a road leading from A. to B. and from thence to C., the variance was held to be fatal. (d) The highway must be alleged in the presentment or indictment to lie in the parish indicted, otherwise such parish is not bound to repair it; and if it be not so alleged, the indictment or presentment is erroneous, and judgment will be reversed. (t) Nor will it cure the objection, that the part which is out of repair is expressly stated to be in the parish indicted, if such part be represented as part of the road before described. Thus, where an indictment against the parish of Gamlingay stated that there was a highway leading from the parish of Hartley St. George towards and unto the parish of Gamlingay, and that a certain part of the said highway situate in the said parish of Gamlingay was out of repair, it was moved in arrest of judgment that no part of the road, as described, lay in Gamlingay; and the Court held the objection fatal. (e) Where the indictment is against a particular person, charging him with the repair of a highway in respect of certain lands, it seems that the occupier, and not the owner, is the proper person against whom the indictment should be brought; on the ground that the public have no means of knowing who is the owner of the lands charged with the repair: and it does not seem to be material what estate the occupier has in the lands liable. (u) The averment of obligation to repair, in an indictment against a person for not repairing by reason of tenure, will, it seems, be sufficient, if it state that the defendant ought to repair by reason of the tenure of his lands, without adding that those who held the lands for the time being have immemorially repaired; a prescription being implied in the estate of inheritance in the land. (w) But it is not sufficient to state that the party is chargeable by being owner and proprietor of the property subject to the charge. (i) But an indictment against a particular part of a parish, such as a district, township, division, or the like, for not repairing a highway in the parish, stating that the inhabitants of the district from time immemorial ought to repair and amend it, is erroneous; it should state that the inhabitants of such district from time whereof, &c. have used and been accustomed, and of right ought to repair and amend it for the inhabitants of a particular division of a parish, not being bound to repair by common law, and their obligation arising necesarily only from custom or prescription, the indictment ought to shew such custom, prescription, or reason, of their obligation.(x) So it has been decided that a presentment uuder see Lord Loughborough's judgment, who differed. (c) Rouse v. Bardin, 1 H. Blac. 351. (d) Rex v. Great Canfield, cor. Ellenborough, C. J. 6 Esp. C. 136. (t) Rex v. Hartford, Cowp. 111. (e) Rex v. Gamlingay, 3 T. R. 513. And see Hammond v. Brewer, ante, 328, and Rouse v. Bardin, 1 H. Blac. 356, Lord Loughborough's judgment. (u) Reg. v. Watts, 1 Salk. 357. Reg. v. Bucknell, 7 Mod. 55. (w) Rex v. Stoughton, 2 Saund. 158 d. note (9). 1 Chit. C. L. 475, et seq. (1) Rex v. Kerrison, 1 M. & S. 435. (x) Ante, note (w). Rex v. Broughton, 5 Burr. 2700. Freem. 522. Rex v. Stoughton. R. v. Sheffield, 2 T. R. 111. the statute 13 Geo. 3. c. 78. s. 24. against a smaller district than a parish, must state expressly how the inhabitants thereof are liable to the repair of the roads, or that they have been liable immemorially. (y) We have seen that a material variance from the description of the road in the indictment will be fatal: so that a highway leading from A. to B., and communicating with C. by a cross road, cannot be described as a highway leading from A. to C., and from thence to B.(z) In every indictment against a parish for not repairing a highway, there are three essential averments: the first, that the road is a highway; the second, that it is out of repair; and the third, that it is situated in the parish. (a) A presentment for a nuisance in a highway must conclude-against the form of the statute.(m) Where a person who is bound ratione tenure, to repair a highway lives out of the county in which such highway is situate, he may nevertheless be indicted in such county for not repairing it.(n) ral issue, and It was ruled in a late case, that if the description of a highway of the defence in an indictment for the non-repair of it be too indefinite, being under the geneequally applicable to several highways, advantage should be taken of the necessiby plea in abatement; and that the description given, if true in ty for a special fact, cannot be objected to at the trial under the plea of the general issue.(b) Where an indictment or presentment is against the inhabitants of a parish at large, who, as it has been seen, are bound of common right to repair all the highways lying within it, they may upon the general issue, not guilty, shew that the highway is in repair, or that it is not a highway, or that it does not lie within the parish; for all these are facts which the prosecutor must allege in his indictment, and prove on the plea of not guilty.(c) But it is settled that they cannot, upon the general issue, throw the burthen of repairing on particular persons, by prescription, or otherwise; but must set forth their discharge in a special plea. (d) This rule, however, was recently held not to apply to a case where the burthen of repairing was transferred from the inhabitants of a parish to other persons by a public act of parliament, to which all are supposed to be privy, and of which all are supposed to have cognizance.(e) Where a person is charged with the repairs of a highway or bridge, against common right, he may discharge himself upon not guilty to the indictment: and therefore where a particular division of a parish is charged with the repair by prescription, or a particular person by reason of tenure or the like, which are obligations against the common law, they may throw the burthen either on the parish, or even on an individual on the general issue. And the reason seems to be, because upon this (y) Rex v. Penderryn, 2 T. R. 513. Rex v. Marton, Andr. 276. (z) Rex v. Great Canfield, 6 Esp. 136. ante note (d). (a) 2 Stark. Crim. Plead. 667, note (f). (m) Rex v. Winter, 13 East. 258. Rep. 357. (c) Rex v. the Inhabitants of Norwich, 1 Str. 181, et sequ. Rex v. Stoughton, 2 Saund. 158, note (3'). (d) Rex v. St. Andrews, 1 Mod. 112. Anon. 1 Vent. 256. (e) Rex v. the Inhabitants of St George, 3 Campb. 222. plea. Traverse of ob pair. issue the prosecutor is bound to prove that the defendants are chargeable by tenure or prescription, and therefore the defendants may disprove it by opposite evidence: but if they will, though unnecessarily, plead the special matter, it is held not to be enough to say that they ought not to repair, but they must go further and shew who ought. (f) If a parish consisting of several townships be indicted for not repairing a road within it, a plea that each township has immemorially maintained its own roads must shew how much of the road indicted lies in one township, and how much in another; for it is considered that the parish must know the limits of each township, and is bound to shew with certainty the parties liable to repair every part of the highway indicted, and in what right they are so liable. (a) If a person indicted for not repairing ratione tenure, or a townligation to re- ship, or other particular persons, indicted for not repairing by prescription, plead (though unnecessarily) to the indictment, and shew who ought to repair, as they must do, it is necessary to traverse their obligation to repair: but if a parish be indicted for not repairing a highway, or a county for not repairing a bridge, and they throw the charge upon another, they ought not to traverse their obligation to repair, for it is a traverse of matter of law; and such traverse, though very often inserted, is demurrable to, and therefore ought always to be omitted.(g) Where an indictment charged that the defendant ought to repair ratione tenuræ of certain lands inclosed and encroached by him out of the highway, a plea, traversing the obligation ratione tenure, was held good; on the ground that it professed to charge the defendant ratione tenure, and not by reason of the encroachment; and that the obligation ratione tenure would continue, though the land should be again thrown open to the highway, whereas the obligation by reason of the encroachment would not.(x) Where a parish is indicted, and a subdivision of such parish is liable to the repair, the parish must take care Evidence of 1 Where any subdivision of a parish is liable to the repair of a highway, and the indictment is, notwithstanding, preferred against the whole parish, care should be taken to plead the liability of such subdivision; for if judgment be given against the parish, whether after verdict upon not guilty, or by default, the judgment will be conclusive evidence of the liability of the whole parish to repair, unless fraud can be shewn. (h) Fraud, however, is only put for example; for if the other districts can shew that they had Rex v. (f) Rex v. Yarnton, 1 Sid. 140. (a) Rex v. Bridekirk, 11 East. 304. |