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pair to the extent of three hundred feet of the highway at each end of it: and that, if indicted for not repairing such highway, they can only exonerate themselves by pleading specially that some other is bound to repair it by prescription or tenure. (s) And it seems that private persons are equally liable. () But where a new and substantial bridge, of public utility, was built within the limit of one county, and adopted by the public, it was held that the inhabitants of that county were bound to repair it, although it was built within three hundred feet of an old bridge, repairable by the inhabitants of another county, who were bound as a matter of course under the statute 22 Hen. 8. c. 5. to maintain three hundred feet of road adjoining to their bridge, though it lay in the other county. The court said, that while the space where the bridge was built continued a road, it was repairable as part of the old bridge ; but that when there was a substantial bridge built upon it, such bridge was repairable, as a bridge by the inhabitants of the county in which it was situated, according to the statute. (1)
It seems clear that those who are bound to repair public bridges Those who are must make them of such height and strength as shall be answer. liable to reable for the course of the water, whether it continues in the old pair must do
it effectually channel, or makes a new one; and that they are not punishable as trespassers for entering on any adjoining land for such purpose, or for laying on the materials requisite for such repairs. (u) A case occurred in which the court of King's Bench strongly intimated an opinion, that if a bridge used for carriages, though formerly adequate to the purposes intended, were not of a sufficient width to meet the present public exigencies, owing to the increased width of carriages, the burthen of widening it must be borne by those who are bound to repair the bridge : (w) but, when the same case came before the house of Lords on error, this point appears to have been considered as doubtful. (x) And, in a recent case, the court of King's Bench held, that the obligation upon a county is only to repair a bridge to the extent to which that bridge has been originally given to the public, and that they are not bound to widen it. (a)
The taxing and collecting monies for the repairing of bridges, of the mode and the highways at the ends thereof, were regulated in the first of procuring instance by 22 Hen. 8. c. 5., and afterwards by the 1 Anne, stat. 1. the
the monies for c. 18. by which the justices at their quarter sessions were em- bridges, and powered, upon presentment of any bridge being out of repair, to of contribumake assessments upon every town or place within their commissions for the charges of the repairs. The 12 Geo. 2. c. 29. 8. 1.,
(9) Rex v. the Inhabitants of the (w) Rex v. the Inhabitants of CumWest Riding of Yorkshire, 7 East. 588. berland, 6 T. R. 194. and the judgment was afterwards af- (*) Cumberland Inhabitants v. Reg., firmed in the house of Lords, 5 Taunt. 3 Bos. and Pul. 354. But the judg. 284.
ment of the court of King's Bench (2) 3 Chit. C. L. 589.
was affirmed upon the ground that, (0) Rex v. the Inhabitants of Devon, after verdict, it must be presumed 14 East. 477.
that the over-narrowness of the bridge (u) i Hawk. P. C. c. 77. s. 1. 1 Bac. arose from its having been contracted Abr. Bridges, 43 Ass. pl. 37 Br. tit. from its ancient width. Presentment in Courts, pl. 22. 29. Dalt. (a) Rex v. Inhabitants of Devon, c. 14.
Mich. T. 6 G. 4. VOL. 1.
for the better collection of such monies, appointed that they should be paid out of the general county rate : but that statute enacted, that no money should be applied to the repair of any bridge, until a presentment should be made by the grand jury of its want of reparation. The 43 Geo. 3. c. 59. s. 2., which provides for the amendment and alteration of county bridges, (y) also enacted, that no money should be applied to such purposes until presentment
made of the insufficiency or want of reparation of such bridges. 55 G. 3. c. 143. The statutes 52 G. 3. c. 110. and 55 G. 3. c. 143. make alterations Justices, &c. in this respect and in other matters relating to the proceedings of may contract the in for the repair
the justices for the repairing of bridges repairable by counties or ing of county hundreds. The last of these statutes enacts, that " it shall and
“ may be lawful to and for the justices of the peace of any county, bridges, and the roads'ad
“ city, riding, division, town corporate or liberty, at their general joining, and “ quarter sessions respectively, to contract and agree, or to auorder pay
“ thorize any other person or persons to contract and agree, with ment out of the county
“ any person or persons, for the maintaining and keeping in rate, or by the “ repair any county or hundred bridge, and the road over bridge master“ such county or hundred bridge, and so much of the roads at dred, although
“ the ends thereof as are by law liable to be repaired at the exno present “ pense of any such county, hundred, city, riding, division, town ment shall
“ corporate or liberty, or any part of the saine ; and the said jushave been made, nor no
tices are hereby empowered to order such sum or sums of money tice given ac- “ as may be contracted for and agreed to be paid for the repairing,
“ amending, and supporting such bridges, and the roads over the Geo. 2. c. 29. But notices of “ same, or the ends thereof, to be paid (in cases where the county the intention “is liable to the repair thereof) by the treasurer of the county
“ out of the county rate, or (in cases where the hundred is liable to be given in s a public paper.
“ to the repair of the same) by the bridge-master (or other public
to c ontract are
(y) Ante, 348.
Clifton, 5 T. R. 501, 2. The usual (2) 55 Geo. 3. c. 143. s. 5.
proceeding at this time appears to be (a) This provision is alluded to by to indict each county separately, for Lord Mansfield, C. J. in Rex v. the neglecting to repair its own division. Tohabitants of Westoo, 4 Burr. 2511. (b) 1 Hawk. P. C. c. 77. s. 25. 1 and by counsel arguend. in Rex v. Keb. 68.
Where certain townships had enlarged a bridge to a carriagebridge, which they were before bound to repair as a foot-bridge, it was held that they should still be liable to repair pro rata.(c)
The methods of appointing surveyors, &c. for effecting the repairs or re-building of bridges; and the powers given to such surveyors, and persons employed under contracts, to procure materials for such purposes, are contained in different acts of parliament, the provisions of which do not fall within the object of this Work. (d)
Where those upon whom the liability rests of repairing public Proceedings bridges neglect their duty, such non-feazance is a nuisance to the for nuisances public, punishable by information, presentment, or indictment.
to bridges by An information was held to lie in the court of King's Bench for presentment, the non-repair of a bridge in a case where it was considered that or indictment. the statute of 22 Hen. 8. c. 5. gave only a concurrent, but not an exclusive, jurisdiction to the sessions :(e) but probably it would not be granted, except in some case of a peculiar nature, in which the court might be satisfied that the purposes of justice would not be effected by an indictment. The more usual course of proceeding is by indictment or presentment. (f)
The statute 22 Hen. 8. c. 5. s. 1. gave power to the justices of Proceedings the peace to hear and determine in their general sessions all an- of justices in noyances of bridges broken in the highways, and to make process,
sessions. &c. as the King's Bench used to do. The fifth section of that statute enacted, that where any bridge is in one shire, and the persons or lands, which ought to be charged, are in another shire; or where the bridge is within a city or town corporate, and the persons or lands that ought to be charged are out of the said city; the justices of such shire, city, or town corporate, shall have power to hear and determine such annoyances, being within the limits of their commission; and if the annoyance be presented, then to make process into every shire of the realm against such as ought to repair the same, and to do further in every behalf as they might do if the persons or landschargeable were in the same shire, city, or town corporate where the annoyance is.
Any particular inhabitant or inhabitants of a county, or tenant of the indictor tenants of land chargeable with the repairs of a public bridge, ment. may be made defendants to an indictment for not repairing it, and be liable to pay the whole fine assessed by the court for the default of such repairs; and shall be put to their remedy at law for a contribution from those who are bound to bear a proportionable share in the charge. (g) The indictment ought to shew what sort of
(c) Rex v. the Inbabitants of the that an action will not lie by an india West Riding of Yorkshire, 2 East, vidual against the inhabitants of a 353. note (a); and see Rex v. the In- · county for an injury sustained from a habitants of Surry, 2 Campb. 455. county bridge being out of repair.
(d) See them collected'in I Burn. Russel v. Men of Devon, 2 T. R. 667. Just. Bridges VI., and see also the late (g) i Hawk. P. C. c. 77. s. 3. I Bac. act 55 Geo. 3. c. 143. By the 43 Geo. Abr. Bridges, where the reason given 3. c. 59. S. 4. inhabitants of counties is, that cases of this nature require the may sue for damages done to bridges greatest expedition; and bridges being in the name of the surveyor.
of the utmost necessity are not to lie (e) Rex v. the Inhabitants of Nor- unrepaired till lawsuits are deterwich, I Str. 177.
mined. (f) 2 Inst. 701. It has been held
Of the plea.
bridge it is; whether for carts and carriages, or for horses or footmen only: and if the duty to repair arise by reason of the tenure of certain lands, the indictment must shew where those lands lie. (b) It has been holden, that an indictment charging an indi· vidual with the repair of a bridge, by reason of his being owner and proprietor of à certain navigation, is not equivalent to charging him ratione tenure, but is erroneous; and, if judgment be given thereon, it will be reversed upon a writ of error. And it seems that a count, charging an individual by reason of being owner of a navigation under a private act of parliament, must set forth the act. And it is not sufficient to state that such party is chargeable, by being owner and proprietor of the property subject to the charge. (i) In presentments by the grand jury, it is said that there is no occasion to shew who ought to repair; and that it is sufficient if the defect be shewn, and the bridge stated to be public. (K)
It is laid down, that it is not sufficient for the defendants in an indictment for not repairing a bridge to excuse themselves by shewing either that they are not bound to repair the whole or any part of the bridge, without shewing what other person is bound to repair it, and that in such case the whole charge shall be laid upon the defendants by reason of their ill plea. (l) But it is submitted that, from analogy to the case of highways, this doctrine must be understvod only of indictments against the county, and not of indictments against individuals, or bodies corporate, who are not of common right bound to repair; because, as it lies on the prosecutor specially to state the grounds on which such persons are liable, they may negative these parts of the charge under the general issue. (m) And it has been holden upon an information for not repairing a bridge, that the defendants, if not chargeable of common right, may discharge themselves upon the general issue. (11) But it is clear that the inhabitants of a county, in order to exonerate themselves from the burden of repairing a bridge lying within it, must shew by their plea that some other person is liable to repair. (0) It has, however, been recently decided, that it is competent to the inhabitants of a county, upon the general issue, to give evidence of the bridge having been repaired by private individuals. But this evidence appears to have been considered barely admissible as a medium of proof that the bridge was not a public bridge, which undoubtedly the defendants had a right to prove by every species of evidence : and the court seemed to think that it would have but little effect; though, in order to ascer. tain whether a bridge be public, the mode of its construction, and the manner of its continuance, may be circumstances which, as they are connected with others, may have much or little weight. (p)
(h) 1 Hawk. P. C. c. 77., s. 5. wich, 1 Str. 177. and see arte, 331, (i) Rex v. Kerrison, 1 M. and S. 435. 332.
(k) 3 Chit. Crim. Law, 592. citing (0) Rex v. the Inhabitants of Wilts, Andr. 285.
i Salk. 359. 2 Lord Raym. 1174. (1) i Hawk. P. C. c. 77. s. 4. 1 Bac. (p) Rex v. the Inhabitants of NorthAbr. Bridges. 1 Burn. Just. Bridges, V. ampton, 2 M. and S. 262. If a bishop, (m) 3 Chit. Crim. L. 592. .
&c. hath once or twice of alms re(n) Rex v. the, Iohabitants of Nor- paired a bridge, this binds not : but
To an indictment for not repairing a bridge described as lying in two parishes, it is no plea that there has been a verdict and judgment against J. S. finding him liable to repair it ratione tenure, upon a presentment describing it as lying in one of the parishes; for he may be liable to repair only what is in one parish. The information was against the county of Essex for not repairing Dagenham bridge, in the several parishes of Hornchurch and Dagenham; and the plea was that Knatchbull and Fanshaw had been presented for not repairing it ratione tenuræ of lands in Barking, and that a verdict and judgment had passed against Fanshaw; and to this there was a demurrer, because the presentment stated in the plea described the bridge as in Dagenham parish. And the court said that Fanshaw might be bound to repair what was in Dagenham parish, and the county might be bound to repair the rest; and gave judgment for the King.(a)
It is said, that where the defendants plead that an individual ought to repair the bridge mentioned in the indictment, and take a traverse to the charge against themselves, the attorney general, in this special case, may take a traverse upon a traverse, and insist that the defendants are bound to the repairs, and traverse the charge alleged against the individual : and that an issue ought to be taken of such second traverse; and that the attorney-general may afterwards surmise that the defendants are bound to repair it, and that the whole matter shall be tried by an indifferent jury. (9) But where the inhabitants of a county are indicted for not repairing a bridge, and they throw the charge upon another, they ought not to traverse their obligation to repair; as it is a traverse of a matter of law, and might be made the subject of demurrer. (r)
Where to an indictment against a riding for not repairing a The plea must public carriage bridge the plea alleged that certain townships had correspond immernorially used to repair the said bridge, it was held that evi- with the facts. dence that the townships had enlarged the bridge to a carriage bridge, which they had before been bound to repair as a foot bridge, would not support the plea. (s) And, upon the same principle, where it was proved that a particular parish was bound by prescription to repair an old wooden foot bridge, used by carriages only in times of flood, and that about forty years ago the trustees of the turnpike road built on the same site a much wider bridge of brick, which had been constantly used ever since by all carriages passing that way; it' was holden that these facts did not support a plea pleaded by the county.that the parish had immemorially repaired, and still ought to repair, the said bridge. (1) In a case where the county was indicted for not repairing a bridge, and pleaded that one Marsack was liable to repair ratione tenure, it was holden that this plea was not sustained by eviyet it is evidence against him, that he ($) Rex v. the Inhabitants of the ought to repair, unless he proves the West Riding of Yorkshire, 2 East. 353. contrary, 2 İost. 700.
note(a). (a) Rex v. Essex county, T. Raym. (1) Rex v. the Inhabitants of Surry, 381.
2 Campb. 455. The facts would not (9) I Hawk. P. C. c. 77. s. 5. 1 Bac. bave availed the county if the plea Abr. Bridges.
had been framed differently, as the (r) Anle, 332. and the authorities county was clearly liable to the repair there cited.
of the new bridge. See ante, 349.
bridge, would not support that a parti
sugges pas inhich had built on hat about to
lide case wheed, and stilt he county