CHAP XXX. § 2. Evidence. 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. (i) And in a late case of an indictment for not repairing a highway against the parish of Eardisland, consisting of three townships, Eardisland, 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 Hardwicke, 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 highways 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 district. (a) evidence to 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 proceeded 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 tenant for years of the premises, could neither be received as an adjudication, the tenant having no authority to bind the rights of his landlord, nor as evidence of reputation, being post litem motam. (y) The general highway act 13 Geo. 3. c. 78. s. 68. enacts that the 13 Geo. 3. c. 78. Campb. 444, s. 68. Surveyor tent witness, to be a compe- surveyor of any parish or place shall be deemed a competent witand also an in- ness 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 certain cases. 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 defendants. (y) The prosecutor may, it seems, be a witness for the prosecution. Certiorari. In a late case of an indictment for not repairing a highway, the prosecutor was examined as a witness for the prosecution, and no objection was taken to his competency: (z) and it seems that a 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 conduct had been vexatious, so as to raise an objection to his competency; especially after the finding of a bill by the grand jury. (b) 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. s. 6. also provides that if any 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 it 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. (f) And in a more ancient case it was decided that the prosecutor may remove an indictment by certiorari, though there be no affidavit made, nor recognizance given according to the statute. (g) after an ac 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) ment. 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 repair 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. (7) 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 pu nishment 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. (h) Rex v. Silverton, 1 Wils. 298. cited 2 Salk. 646. in the note. Rex v. Mann, 4 M. & S. 337. Rex v. Cohen and Jacob, 1 Starkie R. 516. and see Rex v. Reynell, 6 East. 315, and the cases there cited. See ante, 333. that the record of acquittal is not evidence to shew that the parish is not liable to repair. But in a recent case, where the defendants had been acquitted on an indictment for not repairing a road, the court of king's bench, though they refused a new trial, yet upon very special circumstances suspended the entry of the judgment so as to enable the parties to have the question reconsidered upon another indictment, without the prejudice of the former judgment. Rex v. The Inhab. of Wandsworth, 1 Barn. & Ald. 63. (4) The judgment was so stayed in a case where the liability to repair a county bridge was in question. Rex v. the Inhabitants of Oxfordshire, 16 East. 293. It was said by Lord meanors there is no authority to "shew that we cannot grant a new "trial in order that the guilt or inno"cence of those who have been con"victed may be again examined into." It may be observed also that, in cases of indictments for misdemeanors, the court will, in its discretion, save the point for consideration, giving the defendant an opportunity, in case he shall be convicted, to move to have an acquittal entered. Rex v. Gash and another, 1 Starkie R. 445. (k) Rex v. Pappineau, 1 Str. 686. 1 Hawk. P. C. c. 75. s. 15. (7) Rex v. Cluworth, 1 Salk. 358. 6 Mod. 163, 1 Hawk. P. C. c. 76. s. 249. (m) Rex v. Old Malton, 4B. & A. 470. note. (n) Rex v. Machynnleth, 4 B. & A. 469. otherwise such a judgment would be absurd. (m) And if the court be satisfied that the nuisance is effectually abated before judgment is prayed upon the indictment, they will not in their discretion give judgment to abate it. And though it was contended, on the authority of several cases, (n) that if the nuisance be of a permanent nature the regular judgment must be to abate it, the court refused to give such judgment upon an indictment for an obstruction in a public highway, where the highway, after the conviction of the defendant, was regularly turned by an order of magistrates, and a certificate was obtained of the new way being fit for the passage of the public, and the affidavits stated that so much of the old way indicted as was still retained was freed from all obstruction. (0) But where the existence of a building, &c. is a nuisance, and the indictment imports that it was existing at the time of the bill being found, it seems that if a judgment be pronounced, it can only be a judgment to abate the nuisance. (a) But where the nuisance arises not from the existence of the thing, but from the use to which it is applied, a judgment to abate, &c. is not necessary; (b) and, therefore, if a stinking trade is indicted, it does not follow that the house in which it is carried on is to be pulled down. (c) And if a house is a nuisance from being too high, so much only as is too high shall be pulled down. (d) The 13 Geo. 3. c. 78. s. 47. enacts, that no fine, &c. for not repairing the highways, or not appearing to any indictment or presentment for not repairing the same, shall be returned into the court of exchequer, or other court, but shall be levied by and paid to such person or persons residing in or near the parish, township, or place, where the road shall lie, as the court imposing such fines, &c. shall order and direct, to be applied towards the repair and amendment of such highways; and the person or persons so ordered to receive such fine shall receive, apply, and account, for the same, according to the direction of such court, or in default thereof shall forfeit double the sum received; and if any fine, &c. imposed on any such parish, &c. shall be levied on any one or more of the inhabitants of such parish, &c. then that such inhabitant or inhabitants may make his or their complaint to the justices at their special sessions, and the justices are authorized by warrant under their hands and seals to cause a rate to be made according to the form and manner thereinbefore prescribed for the reimbursing such inhabitant or inhabitants: and the rate so made (m) Rex v. Stead, 8 T. R. 142. (n) Rex v. Pappineau, ante, note(k). Rex v. the Justices of Yorkshire, 7 T. R. 467, Rex v. Stead, ante, note (m), and other cases cited in those. (0) Rex v. Incledon, 13 East. 164. Judgment was given that the defendant should pay a fine to the king of 68. 8d. In Rex v. Sir Joseph Mawbey and others, 6 T. R. 619. it was held that a certificate by justices of the peace, that a highway indicted is in repair is a legal instrument recognized by the courts of law, and admissible in evidence after conviction when the " and confirmed by any two justices is to be collected and levied by the surveyor of the parish, &c. indicted; and the surveyor is within a month after the making and confirming the rate to collect, levy, and pay, unto such inhabitant or inhabitants the money so levied on him or them as aforesaid. Upon the latter part of this section it has been held that the application for the rate to reimburse the inhabitants, on whom a fine has been levied, after a conviction upon an indictment against the parish for non-repair, ought to be made within a reasonable time after such levy, and before any material change of inhabitants; and the court of king's bench refused a mandamus to the justices to make such rate after an interval of eight years; though applications had been made in the interval, from time to time, to the magistrates below, who had declined to make the rate on the ground that the parish at large had been improperly indicted and convicted, and though, so lately as the year before the application to the court of king's bench, the magistrates had ordered an account to be taken of the quantum expended upon the repairs out of the money levied. (p) In a case where it appeared that although separate parts of a parish were bound to maintain their own roads, there had been an indictment, and judgment against the parish generally, but that such indictment was only known to and defended by that part of the parish in which the defective road lay, it was held that the justices might make a warrant to reimburse upon that part only; and the court of King's Bench granted a mandamus to collect to the surveyor of that part only.(z) The 3 Geo. 4. c. 126. s. 10. provides for a portion of the fine Where turnbeing paid by the turnpike trustees when the highway shall be a pike roads are turnpike road; and enacts that, when the inhabitants of any court may proparish, township, or place, shall be indicted or presented for not portion the fine repairing any highway, being turnpike road, and the court, before and costs bewhom such indictment or presentment shall be preferred, shall habitants and impose a fine for the repair of such road,' such fine shall be ap- the trustees. portioned, together with the costs and charges, between such inhabitants and the turnpike trustees as to the court shall seem just; and the court may order the treasurer of such turnpike road to pay the same out of the money then in his hands, or next to be received by him, in case it shall appear to such court, from the circumstances of such turnpike debts and revenues, that the same may be paid without endangering the security of the creditors who have advanced their money upon the credit of the tolls. The true construction of a similar provision in the repealed act of 13 Geo. 3. was held to be, that the court which imposed the fine had the power to apportion it between the parish and the trust; so that where an indictment was originally preferred at the assizes, and afterwards removed into the court of King's Bench by certiorari, it was held that the court of King's Bench might apportion the fine. (q) The 13 Geo. 3. c. 78. s. 64. enacts, "that it shall be lawful "for the court, before whom any indictment or presentment shall "be tried for not repairing highways, to award costs to the prosecu (p) Rex v. the Justices of Lancashire, 12 East. 366. (2) Rex v. Townsend, Dougl. 421. The mandamus was special, stating the VOL. I. Ꮓ obligation to repair, and the situation R. 413. indicted, the tween the in Upon the trial of an indictsentment the ment or pre court may award costs. |