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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.() 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 repair ing it.(n)

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 ge- plea. neral 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.(cy 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. Rep. 357. Rex o. Marton, Andr. 276.

(c) Rex v. the Inbabitants of Nor(2) Rex v. Great Canfield, 6 Esp. wich, 1 Str. 181, et sequ. Rex u. 136. ante note (d).

Stoughton, 2 Saund. 158, note (3). (a) 2 Stark. Crim. Plead. 667, pote (d) Rex v. St. Andrews, 1 Mod. 112. (f).

Anon. 1 Vent. 256. (m) Rex v. Winter, 13 East. 258. (e) Rex v. the Inhabitants of St (n) Rex v, Clifton, 5 T. R. 502, 503. George, 3 Campb. 229. (6) Rex ». Hammersmith, i Stark.

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) Traverse of ob- If a person indicted for not repairing ratione tenure, or a townligation to re- ship, or other particular persons, indicted for not repairing by prepair.

scription, 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 tenure 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 tenuræ, 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 obliga

tion by reason of the encroachment would not.(x) Where a parish Where any subdivision of a parish is liable to the repair of a a subdivision of highway, and the indictment is, notwithstanding, preferred against such parish is the whole parish, care should be taken to plead the liability of liable to the re. such subdivision; for if judgment be given against the parish, must take care whether after verdict upon not guilty, or by default, the judgment to plead such will be conclusive evidence of the liability of the whole parish to liability. repair, unless fruud can be shewn.(1) Fraud, however, is only Former convic- put for example; for if the other districts can shew that they had unless fraud, (f) Rex v. Yaroton, 1 Sid. 140. inserted it. Supposing such traverse &c. be shewn. Rex v. Horosey, Carth. 213.

to be necessary, it is sufficiently exCity of Norwich, 1 Str. 180, et sequ. pressed by a plea concluding thus, Rex v. St. Andrews, 3 Salk. 183. pl. 3. * And that the inhabitants of the said Rex v. Stoughton, 2 Saund. 159 a. “parish at large ought not to be note (10).

“charged with the repairing and a(a) Rex v. Bridekirk, 11 East. 304. mending the same.”

() Rex v. Stoughton, 2 Saund. 159 (x) Rex v. Stoughton, 2 Saund. 160. c. note (10). Bennet v. Filkins, I (h) Rex v. St. Pancras, Peake Rep. Saund. 23, note (5). In Rex v Eccles- 219. And in a case of a prescription field, 1 B. & A. 350, 351, J. Williams for a public right of way, a verdict arguend. denied that such traverse is against one defendant negativing such demurrable: and said that Rexv. Inha- a right, is evidence against another bitants of Glamorgan contained such defendant who justifies inder the same a traverse, (2 East. 356, in notis.) and right. Read v. Jackson, 1 East. Rep. that the better precedents have always 355.

tion conclusive

Rex v.

no notice of the indictment, and that the defence was made and
conducted entirely by the district in which the highway indicted
lay, without their knowledge or privity, the Court will consider it
as being substantially an indictment against that district, and give
the other districts leave to plead the prescription to a subsequent
indictment for not repairing the highways in that parish. (0) And
in a late case of an indictment for not repairing a highway against
the parish of Eardisland, consisting of three townships, Eardis-
land, Burton, and Hardwicke, where there was a plea on the part
of the township of Burton that each of the three townships had
immemorially repaired its own highways separately; it was held
that the records of indictments against the parish generally for
not repairing highways situate in the township of Eardisland, and
the township of Hardwicke, with general pleas of not guilty, and
convictions thereupon, were prima facie evidence to disprove the
custom for each township to repair separately; but that evidence
was admissible to shew that these pleas of not guilty were pleaded
only by the inhabitants of the townships of Eardisland and Hard-
wicke, without the privity of Burton.(t) In a case where the
inhabitants of a parish pleaded that the inhabitants of a particular
district were bound by prescription to repair all common high-
ways situate within that district, save and except one common
highway within the said district, it was holden that the plea might
be supported, although it appeared that the excepted highway
was of recent date; and it was also holden that in such a plea it
was not necessary to state by whom the excepted highway was.
repairable.(u) And such a plea will be good although it does not.
state any consideration for the liability of the inhabitants of the

It has been held that the record of an acquittal upon an indict- Record of an
ment for not repairing a highway is not evidence to shew that the acquittal is not
parish is not liable ; on the ground that some other parties might shew that the
have indicted them, and that those parties could not be bound by parish is not
this record. (w) And a satisfactory reason for rejecting such evi- liable to repair.
dence altogether seems to be that the acquittal might have pro-
ceeded upon the want of proof that the road was out of repair: (x)
In the case of an indictment for not repairing a highway, which it
was alleged the defendant was bound to repair ratione tenure, it
was held that an award made under a submission by a former te-
nant for years of the premises, could neither be received as an ad-
judication, the tenant having no authority to bind the rights of
his landlord, nor as evidence of reputation, being post litem
The general highway act 13 Geo. 3. c. 78. s. 68. enacts that the 13 Geo. 3. c. 78.

s. 68. Surveyor (1) Rex v. Stoughton, 2 Saund. 159 (y) Rex v. Cotton, 3 Campb. 444, C. note(10). Rex v. Townsend, Dougl. cor. Dampier, J. Stafford Sum. Ass. 421., Post. 337.

1813. The learned Judge stated that (4) Rex v. Eardisland, 2 Campb. 494. it was a question of considerable im(u) Rex v. Ecclesfield, i Stark. Rep. portance, and of some novelty; and

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wished that his opinion upon it could (a) Rex v. Ecclesfield, 1 B. & A. 348. be reviewed : but from the manner in (6) Rex v. St. Pancras, Peake Rep. which the question arose, that was not

possible. (3) Mann. Ind. N. P. R. 128.



certain cases.

for the prose

to be a compe- surveyor of any parish or place shall be deemed a competent witand also an in- pess in all matters relative to the execution of the act, notwithhabitant of any standing his salary may arise in part from the forfeitures and parish, &c. in penalties thereby inflicted. And a subsequent section further

enacts, that no conviction shall be had by virtue of that act, unless upon confession of the party accused, or upon the oath of one or more credible witnesses, or upon the view of a justice; and that any inhabitant of any parish or place, in which any offence shall be committed contrary to the act, shall be deemed a competent witness. But the inhabitants of a parish indicted for not repairing a highway are not competent to give evidence for the defend

ants. (y) The prosecutor

In a late case of an indictment for not repairing a highway, the may, it seems, prosecutor was examined as a witness for the prosecution, and no be a witness

objection was taken to his competency: (x) and it seems that a cution.

prosecutor in such case is a competent witness; for, though the court is authorized to award costs against him in case the proceeding shall appear to have been vexatious, (a) yet the court would scarcely presume, in the first instance, that the prosecutor's, conduet had been vexatious, so as to raise an objection to his compe

tency; especially after the finding of a bill by the grand jury. () Certiorari.

Though the same statute of Geo. 3. by s. 24. declares, as we have seen, (c) that no presentments or indictments therein mentioned shall be removed by certiorari before traverse and judgment, except where the obligation of repairing may come in question, yet this clause does not take away the writ at the instance of the prosecutor, for the crown does not traverse; and it was calculated merely to prevent delay on the part of defendants. (d) And it has been holden to be no objection to a certiorari to remove such a presentment, that it is prosecuted by another than the justice presenting, if it be by his consent. (e) The 5 W. & M. c. 11. ... 6. also provides that if


indictment or presentment be against any persons for not repairing highways or bridges, and the right or title to repair the same may come in question, upon a suggestion and affidavit made of the truth thereof, a certiorari may be granted, provided that the party prosecuting such certiorari enter into the recognizance mentioned in the act. In a late case was held that, upon an indictment against a parish for not repairing a highway, the right to repair may come in question so as to entitle the parish to remove it by certiorari, though the parish plead not guilty only, it being stated in an affidavit filed by the defendants, that, on the trial of the indictment, the question, whether the parish were liable to repair, and the right to repair, would come in issue. () And in a more ancient case it was decided that the prosecutor may (y) i Phil. Ev. 126. citing 1 B. & A. proceedings had in pursuance of the 15 East. 474.

act shall be quashed or vacated for (z) Rex v. Hammersmith, 1 Starkie want of form, or removed by certiorari, R. 337.

or any other writ or process, except as (a) By the 13 Geo.. 3. C. 78. §. 64., therein before nientioned. post, 337.

(d) Rex v. Bodenham, Cowp. 79. . * (0) Rex v. Hammersmith, 1 Starkie (e) Rex v. Penderryn, 2 T. R. 260. B. 358, note (a).

(f) Rex v. Taunton, St. Mary, 3 M. (c) Ante, 328. And by s. 80. of this & S. 465. statute it is further enacted, that no



3! posjed

remove an indictment by certiorari, though there be no affidavit made, nor recognizance given according to the statute. (8)

The general rule of a new trial never being allowed where the A new trial is defendant is acquitted in a criminal case has been held to prevail not allowed. in a prosecution for not repairing a highway, though such pro- quittal. secution is usually carried on for the purpose of trying or enforcing a civil liability. (h) But if the defendants be found guilty, and the justice of the case seem to require it, the court would probably grant a new trial, or stay the judgment upon payment of costs, until another indictment be preferred for the purpose of trying the question of liability to repair. (i)

The object of prosecutions for nuisances to highways is to effect of the judgeither a removal of the nuisance in cases of obstruction, or the re

ment. pair of the highway in cases where the nuisance charged is the want of reparation. The judgment of the court is usually a fine, and an order on the defendant at his own costs to abate the nuisance in the one case, (k) and in the other a fine, for the

purpose of obliging the defendants to repair the nuisance : for they will not be discharged by submitting to a fine, as a distringas will go ad infinitum until they repair. (A) But writs of distringas are the only further remedy on an indictment, upon which the court has already pronounced judgment by imposing a fine. For the fine is the punishment for the neglect and offence of which the defendants are indicted; and, though the court may compel an actual repair, yet the punishment has been inflicted, and they cannot inflict a further punishment or fine. The parish may, however, be again indicted ; and a fine may be imposed on such new indictment. (m) And upon this principle an order of a court of quarter sessions by which it was ordered that the fine theretofore imposed for the not repairing a bridge should be increased by a certain sum, was quashed. (n) In order to warrant a judgment for abating the nuisance, it must be stated in the indictment to be continuing ; as

(g) Rex v. Farewell, 2 Str. 1209. 16 East. 293. It was said by Lord (h) Kex v. Silverton, 1 Wils. 298. Kenyon, C. J. in Rex v. Mawbey and cited 2 Salk. 646. in the note. Rex v. others, 6 T. R. 619.--" In misdeMann, 4 M. & S. 337. Rex v. Cohen meanors there is no authority to and Jacob, 1 Starkie R. 516, and see “ shew that we cannot grant a new Rex v. Reynell, 6 East. 315, and the “ trial in order that the guilt or innocases there cited. See ante, 333. that “ cence of those who have been conthe record of acquittal is not evidence victed may be again examined into." to shew that the parish is not liable to it may be observed also that, in cases repair. But in a recent case, where of indictments for misdemeanors, the the defendants had been acquitted on court will, in its discretion, save the an indictment for not repairing a road, point for consideration, giving the dethe court of king's bench, though they fendant an opportunity, in case he refused a new trial, yet upon very spe- shall be convicted, to move to have an cial circumstances suspended the entry acquittal entered. Rex v. Gash and of the judgment so as to enable the another, 1 Starkie R. 445. parties to have the question reconsi- (k) Rex v. Pappineau, 1 Str. 686. dered upon another indictment, wilh- 1 Hawk. P. C. c. 75. s. 15. out the prejudice of the former judg. (?) Rex v. Cluworth, I Salk. 358. ment. Rex v. The Inhab. of Wands- 6 Mod. 163, Hawk, P. C. c. 76. S. worth, 1 Barn, & Ald. 63.

249. (1) The judgment was so stayed in a (m) Rex N. Old Malton, 4 B. & A. case where the liability to repair a 470. note. county bridge was in question. Rex (n) Rex v. Machynnloth, 4 B. & A. v. the lohabitants of Oxfordshire, 469.

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