R. v. Langley, 2 F. & F. 170. An order for costs under s. 98 may be enforced by distress or attachment. R. v. Pembridge, ubi supra; and see Pratt on Highways (15th ed.), 309.

3. Where the indictment is directed by justices under s. 19 of the Highway Act, 1862 (24 & 25 Vict. c. 61), ante, p. 1211, the costs of the prosecution are to be paid by such party to the proceedings as the court may direct, and if directed to be paid by the purish are to be treated as part of the expense of keeping the highway in repair, and to be paid accordingly. The court under this section has a discretion to direct by which party the costs are to be paid. But costs cannot be given under this section where the jury find the alleged highway not to be a highway, and the section does not alter the law of costs as laid down in s. 95 of the Highway Act, 1835 (ante, p. 1210). R. v. Buckland, 6 B. & S. 397; 34 L. J. (M. C.) 178; 10 Cox, 116; Pratt on Highways (15th ed.), 367.

NON-REPAIR OF BRIDGES.

Common Law.

At common law and under the early statutes (post, p. 1236) the primary liability for the repair of a bridge falls on the inhabitants of the county, city, or town corporate within which the bridge lies (see 2 Chit. Cr. L. 588 a), unless they can prove under a special plea sufficient to throw the burden on the inhabitants of a parish (R. v. Hendon, 4 B. & Ad. 628; 2 L. J. (M. C.) 55; 38 R. R. 333), or township (R. v. Yorkshire (W. R.), 4 B. & Ald. 623; 23 R. R. 421), or district of the county (such as a hundred; R. v. Oswestry, 6 M. & Sel. 361; 18 R. R. 398), as being bound to repair it by immemorial usage (R. v. Sutton, 3 A. & E. 597; 4 L. J. (K. B.) 215); or upon some individual or body corporate or politic bound to repair it ratione tenuræ (R. v. Kerrison, 1 M. & Sel. 435; 14 R. R. 491) or by prescription (R. v. Yorkshire (W. R.), 7 East, 588; 8 R. R. 688), or by the terms on which they have received statutory powers to interfere with public rights. R. v. Kerrison, 3 M. & Sel. 526; 16 R. R. 342. The liability of the inhabitants of a county appears to be transferred to the county council by 51 & 52 Vict. c. 41, s. 79 (2) (post, p. 1241): but that of the inhabitants of a borough, parish, or township to be unaltered. R. v. Poole (Mayor, etc.), 19 Q. B. D. 602; 56 L. J. (M. C.) 131; 16 Cox, 323. The pleas and evidence are the same, mutatis mutandis, with the pleas and evidence in the case of an indictment for not repairing a highway. (See ante, pp. 1220-1233.) The liability extends to bridges built by private individuals prior to 43 G. 3, c. 59, if of utility to and used by the county. R. v. Wilts, 6 Mod. 307: R. v. Yorkshire (W. R.), 5 Burr. 2594: R. v. Yorkshire (W. R.), 2 East, 342; 6 R. R. 439: R. v. Bucks, 12 East, 192; 11 R. R. 347: R. v. Salop, 13 East, 95; 12 R. R. 307: R. v. Kent, 13 East, 220: R. v. Devon, 14 East, 477; 13 R. R. 285: R. v. Oxfordshire, 16 East, 223: R. v. Same, 4 B. & C. 194: R. v. Same, 1 B. & Ad. 297, n.: R. v. Kent, 2 M. & Sel. 513; 15 R. R. 330: R. v. Isle of Ely, 15 Q. B. 827; Burn's Justice (30th ed.), tit. “ Bridges;" Pratt on Highways (15th ed.), 84. A bridge always open to the public, but only used in time of flood, has been held to be a public bridge. R. v. Devon, Ry. & M. 144. Where a bridge has been built on a public highway before 1803, the county can

only avoid its common law liability by proving that it has been cast on some other person. Att.-Gen. v. West Riding of Yorkshire County Council, 67 J. P. Rep. 103; 1 Loc. Govt. Rep. 223: Yorkshire (W. Ř.) v. R 2 Dow (H. L.) 1; 3 Eng. Rep. 767. As to the liability of the county to repair a bridge built by a private individual and used by the public, and the evidence necessary to support such liability, see R. v. Southampton, 17 Q. B. D. 424; 19 Q. B. D. 590. In that case it was held that there must be evidence of acceptance by the county: hereon see Pratt on Highways (15th ed.), 90. Bridges built since 43 G. 3, c. 59, cannot become county bridges except under that Act, or under 33 & 34 Vict. c. 73, s. 12, or 41 & 42 Vict. c. 77, s. 21, or 51 & 52 Vict. c. 41, ss. 6, 11 (post, p. 1240). And see New Windsor (Mayor, etc.) v. Taylor [1899] App. Cas. 41; 68 L. J. (Q. B.) 87. As to partial dedication of a bridge, see R. v. Northampton, 2 M. & Sel. 262; 15 R. R. 241.

As to what is a bridge, and what a culvert, and so part of the highway, see R. v. Oxfordshire, 1 B. & Ad. 289; 35 R. R. 302: R. v. Whitney, 3 A. & E. 69; 7 C. & P. 208; 4 L. J. (M. C.) 86: R. v. Derbyshire, 2 Q. B. 745; 2 G. & D. 97; 11 L. J. (M. C.) 51: R. v. Lancaster, 32 J. P. 711. A footbridge formed by three planks, nine or ten feet long, and a hand-rail, which carried a public footpath over a small stream, was held not to be such a bridge as the county was bound to repair. R. v. Southampton, 18 Q. B. 841; 21 L. J. (M. C.) 201. Where a county bridge, which had been washed away, was, after 43 G. 3, c. 59, built wider than before, and without notice to the county surveyor, by the parish, partly with the old materials, and in the same line of passage over the river, it was held that this was not a new bridge within the meaning of the Act, and that the county was still liable to repair it. R. v. Devon, 5 B. & Ad. 383; 2 L. J. (M. C.) 74; 2 Nev. & M. 212: see R. v. Adderbury East, Dav. & M. 324; 13 L. J. (M. C.) 9. The county is not compellable to widen a bridge; R. v. Devon, 4 B. & C. 670; 28 R. R. 440; but if a county bridge is accidentally destroyed, the county is liable to rebuild it. R. v. Yorkshire (W. R.), 5 Burr. 2594. The Locomotives Act, 1861 (24 & 25 Vict. c. 70, s. 7), does not apply to public bridges repairable by the inhabitants of a county so as to relieve them from their common law liability to repair, or to render the owner of a locomotive liable to an indictment for non-repair of a county bridge damaged by such locomotive. R. v. Kitchener, L. R. 2 C. C. R. 88; 43 L. J. (M. C.) 9. The transfer of part of a county to another county transfers the liabilities as to bridges within the transferred portion, unless the liability rested on statute or prescription. R. v. Breconshire, 15 Q. B. 813: Re Staffordshire and Derbyshire County Councils, 54 J. P. 566. Where a borough, incorporated by charter with a non-intromittant clause, was enlarged, under 2 & 3 W. 4, c. 64, s. 35 (rep.), and 5 & 6 W. 4, c. 76, s. 7 (rep.), by the addition of a parish within the same county, containing a bridge which until that time the county had repaired, it was held that this transfer of the new district did not of itself, without evidence that the borough had been used to maintain any bridges, render the borough liable to repair such bridge. R. v. New Sarum, 7 Q. B. 941; 15 L. J. (M. C.) 15: see 45 & 46 Vict. c. 50, s. 119 (post, p. 1240).

Statutes.

22 II. 8, c. 5, s. 1-Jurisdiction of quarter sessions.]—... The justices of the peace in every shire of this realm, franchise, city, or borough, or four of them at the least whereof one to be of the quorum, shall have power and authority to inquire, hear and determine in the King's general

sessions of the peace of all manner of anoysances (nuisances) of bridges broken in the highways to the damage of the King's liege people; and to make such process and pains upon every presentment afore them for the reformation of the same again such as owen (ought) to be charged for the making or amending of such bridges as the King's justices of his bench use commonly to do, or as it shall seem by their discretion to be necessary and convenient for the speedy amendment of such bridges.

Sect. 2. And where in many parts of this realm it cannot be known and proved what hundred, riding, wapentake, city, borough, town or parish, nor what person certain or body politic ought of right to make such bridges decayed, by reason whereof such decayed bridges for lack of knowledge of such as owen (ought) to make them for the most part lyen long without any amendment, to the great annoyance of the King's subjects; for the remedy thereof, be it enacted by authority aforesaid, that in every such case the said bridges, if they be without city or town corporate, shall be made by the inhabitants of the shire or riding within which the said bridge decayed shall happen to be: and if it be within any city or town corporate then by the inhabitants of every such city or town corporate wherein such bridges shall happen to be; and if part of any such bridges so decayed happen to be in one shire, riding, city, or town corporate, and the other part thereof in another shire, riding, city or town corporate, or if part be within the limits of any city or town corporate and part without, or part within one riding and part within another, that then in every such case the inhabitants of the shires, ridings, cities or towns corporate shall be charged and chargeable to amend, make and repair such part and portion of such bridges so decayed as shall lie and be within the limits of the shire, riding, city or town corporate, wherein they be inhabited at the time of the same decay. [This section is declaratory of the common law. R. v. Yorkshire (W. R), 7 East, 588; 8 R. R. 688, affirmed 2 Dow (H. L.) 1; 3 Eng. Rep. 767. But quare as to highways not then existing. R. v. Southampton, 17 Q. B. D. 424, 436. The Isle of Ely is a riding within this section. R. v. Isle of Ely, 15 Q. B. 827; 19 L. J. (M. C.) 223. A town is not liable within this section for a bridge not within its limits, unless a consideration for the liability can be proved. R. v. Machynlleth and Pennegoes, 2 B. & C. 166; 25 R. R. 334. A county of a city created by charter has the same liabilities as to bridges as a county at large, and the county at large from which the county of a city is carved is not liable for the bridges within the city. R. v. Southampton, 17 Q. B. D. 424, 438.]

Sect. 3-Rating by justices and collection of rates.]-Superseded by 51 & 52 Vict. c. 41.

Sect. 4.]-Sending process into other shires.

Sect. 5.]-Bridges in the Cinque Ports.

Sect. 7.]-Forasmuch that albeit bridges decayed were amended and repaired according to the tenour of this Act, yet nevertheless if speedy remedy for the ways next adjoining to every of the ends of such bridges should not be had and made, the King's subjects should take little or none avail or commodity in many parties (sic) of this realm by the making of the bridges: in consideration whereof be it enacted. . . that such part and portion of the highways in every part of this realm as well within franchise or without as lie next adjoining to any ends of any bridges

within this realm distant from any of the said ends by the space of 300 feet, be made, repaired and amended as often as need shall require. [Justices to have the same jurisdiction to inquire, hear, and determine nuisances to such highways as they have under the Act as to bridges. Sect. 7 does not apply to the roads at the ends of bridges built since 1835. See 5 & 6 W. 4, c. 50, s. 21. The liability to repair a bridge includes liability to maintain the approaches for a space of 300 yards. R. v. Mayor, etc., of Lincoln, 8 A. & E. 65; 47 R. R. 484. This liability falls on the highway authority, i.e., in main roads on the county council, unless placed elsewhere by a particular statute or by prescription. Att.-Gen. v. Oxford Canal Navigation, 72 L. J. Ch. 285 (C. A.): Nottingham County Council v. Manchester, etc., Rail. Co., 71 L. T. 430. The liability is prima facie on the inhabitants, and if they wish to exonerate themselves they must specially plead and prove liability in another by prescription or tenure. Yorkshire (W. R.) v. R., 2 Dow (H. L.) 1; 3 Eng. Rep. 767. Cf. Nottingham County Council v. Manchester, etc., Rail. Co., ubi supra: Att.-Gen. v. Yorkshire (W. R.) County Council, 67 J. P. Rep. 103. The 300 yards' limit imposed by this section applies to county bridges and bridges reparable by prescription or, semble, ratione tenure, but is not to be presumed to apply to bridges constructed by individuals or companies under special Acts. Hertfordshire County Council v. New River Co. [1904], 2 Ch. 513, Eady, J.]

1 Anne, c. 12, s. 1.]—Recites and continues 22 H. 8, c. 5, with modifications by ss. 2, 3, as to mode of assessment of costs of repair and their collection from towns and parishes. See Pratt on Highways (15th ed.), 849.

Sect. 4-Fines for non-repair.]—And whereas upon presentments and indictments for not repairing such bridges and the highways at the end of such bridges, the fines imposed and set upon such presentments and indictments and other fines and issues for not repairing, building, and amending such bridges and the highways at the end of such bridges, are returned into the Court of Exchequer or other courts, be it therefore further enacted by the authority aforesaid, that no fine, issue, penalty, or forfeiture shall hereafter be returned into the Court of Exchequer or other court, but shall be levied and paid into the hands of the treasurer or treasurers so as aforesaid appointed by the said justices (now the county treasurer) to be accounted for by the said treasurer, and to be applied by the said justices towards the building, repairing, or amending such bridges and the highways at the end of such bridges, and to no other end or purpose whatsoever. [Cf. 5 & 6 W. 4 c. 50, s. 21, post, p. 1239]. ;

Sect. 5-Place of trial—No certiorari.]—And all matters concerning the repairing and amending of the bridges and highways herein before mentioned shall be determined in the county where they lie and not elsewhere, and no presentment or indictment for not repairing such bridges or the highways at the end of such bridges shall be removed by certiorari out of the said county into any other court. [This section applies only to certiorari at the instance of the defendants; R. v. Cumberland, 6 T. R. 194; 3 R. R. 149; and seems not to prevent a change of venue. R. v. Wilts., 6 Mod. 307; Cas. temp. Holt, 339: R. v. Southampton, 17 Q. B. D. 424; 19 Q. B. D. 595.]

Sect. 8-Saving as to individual liability to repair.]-Provided always that this Act nor anything therein contained shall excuse or discharge any particular persons, estates, or places from repairing any bridge which they have heretofore (1702) usually repaired.

Sect. 9.1-And... all the penalties and forfeitures incurred by this Act shall be applied towards the repairing the said bridges and highways at the end of the same.

43 G. 3, c. 59 (Bridges Act, 1803), s. 5-Bridges built after 24th June, 1803.]—And for the more clearly ascertaining the description of bridges hereafter to be erected, which inhabitants of counties shall and may be bound or liable to repair and maintain, be it further enacted that no bridge hereafter to be erected or built in any county by or at the expense of any individual or private person or persons, body politic or corporate shall be deemed or taken to be a county bridge, or a bridge which the inhabitants of any county shall be compellable or liable to maintain or repair, unless such bridge shall be erected in a substantial and commodious manner under the direction or to the satisfaction of the county surveyor, or person appointed by the justices of the peace at their general quarter sessions assembled (now by the county council), or by the justices of the peace of the county of Lancaster at their annual general sessions; and which surveyor or person so appointed is hereby required to superintend and inspect the erection of such bridge when thereunto requested by the party or parties desirous of erecting the same: and in case the said party or parties shall be dissatisfied the matter shall be determined by the said justices respectively at their next general quarter sessions or at their annual general sessions in the county of Lancaster. [See R. v. Derbyshire, 3 B. & Ad. 147; 1 L. J. (M. C.) 15: R. v. Same, 2 Q. B. 745 : R. v. Oxfordshire, 1 B. & Ad. 289, 297; 35 R. R. 302: R. v. Lancashire, 2 B. & Ad. 813; 1 L. J. (M. C.) 3: R. v. Gloucestershire, C. & Mar. 506. See R. v. Southampton, 18 Q. B. 841; 21 L. J. (M. C.) 201.]

Sect. 7.-Provided always . . . that nothing herein contained shall extend to any bridges or roads which any person or persons, bodies politic or corporate, is, are, or shall be liable to maintain or repair by reason of tenure or by prescription, or to alter or affect the right to repair such bridges or roads.

5 & 6 W. 4, c. 50 (Highways Act, 1835), s. 21-Highways adjoining bridges built after Aug. 31, 1835.]-If any bridge shall hereafter (after Aug. 31, 1835) be built, and such bridge shall be liable by law to be repaired by or at the expense of any county or part of any county, then and in such case all highways leading to, passing over, and next adjoining to such bridge shall be from time to time repaired by the parish, body politic or corporate (or trustees of a turnpike road), who were by law before the erection of the said bridge bound to repair the said highway: Provided, nevertheless, that nothing herein contained shall extend to exonerate, or discharge any county or part of a county from repairing or keeping in repair the walls, banks, or fences of the raised causeways and raised approaches to any such bridge or the land arches thereof. [As to effect of this section, see R. v. Southampton, 17 Q. B. D. 424: and as to hundred bridges, R. v. Chart and Longbridge, L. R. 1 C. C. R. 237; 39 L. J. (M. C.) 107. See also 51 & 52 Vict. c. 41, s. 11, post, p. 1240.]

33 & 34 Vict. c. 73, s. 12-Bridges in disturnpiked roads.]-Where a turnpike road shall have become an ordinary highway, all bridges which were previously repaired by the trustees of the turnpike road shall become county bridges and shall be kept in repair accordingly: Provided that for the purposes of this Act such bridges shall be treated as if they were bridges built subsequently to the passing of the Highway Act, 1835. [See 5 & 6 W. 4, c. 50, s. 21, supra.]