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.(v)

Where to an indictment for not repairing a highway against the parish of Eardisland, consisting of three townships, Eardisland, Burton, and Hardwicke, there was a plea on the part 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 primâ facie evidence to disprove the custom for each township to repair separately; but that evidence was admissible to show that these pleas of not guilty were pleaded only by the inhabitants of the townships of Eardisland and Hardwicke, without the privity of Burton.(w)

*The defendant was indicted for the non-repair of a highway, which it was [*520 alleged he was liable to repair ratione tenure of certain lands called Saw-pit Field, and pleaded not guilty. To prove this liability evidence was given of the conviction of W. Smith, a former owner and occupier of the same lands, for the non-repair of the same highway, showing that in the year 1801 a presentment had been preferred against him, alleging his liability to repair it ratione tenure of the lands called Saw-pit Field, to which he pleaded guilty. Evidence was also given of the repair of the said highway subsequently to the said conviction of W. Smith by the occupiers of the lands, of which Saw-pit Field formed part; that public notice was given when Saw-pit Field was offered for sale of the liability to repair the highway in question, and that the defendant, who purchased the lands after such notice, was now the owner and occupier of Saw-pit Field; and, upon a case reserved after a verdict of guilty, the judges were unanimously of opinion that there was evidence to go to the jury of immemorial usage, and of the defendant's liability to repair the highway ratione tenuræ; and Parke, B., Alderson, B., Patteson, J., and Coleridge, J., were of opinion that the conviction of W. Smith estopped the defendant, who was privy to him in estate, from denying his liability ratione tenure. If the defendant had pleaded that he was not liable ratione tenure, then the prosecutor might have replied the previous conviction as an estoppel, but as he had pleaded the general issue, there was no opportunity of pleading the conviction as an estoppel, and therefore the prosecutor might take advantage of it upon the evidence as conclusive.(x) And on an indictment for non-repair of a highway against a township alleging it to be liable by prescription to repair such highways in the township as the parish but for the prescription would have been liable to repair, with a plea of not guilty, a record of a presentment by a justice, under the 13 Geo. 3, c. 78, on his own view, that the road in question was out of repair, and alleging that it was in the township, and that the township ought to repair it, with a plea of guilty by two of the inhabitants, and a sentence of a fine, was held conclusive evidence against the township that the highway was situate within it and that the township was liable to repair it; and that, though the presentment might be bad on demurrer, in arrest of judgment or on error, the conviction being before a competent tribunal, and unreversed, was not the less an estoppel. It was also held that it was unnecessary to prove that the fine had been paid, as no fraud or collusion was shown.(y) So where a road ran over a waste in the township of Ecclesall, but had always been repaired by Hallam, both before and after an inclosure Act for Ecclesall, and three years before the inclosure Act Hallam had submitted to an indictment for non-repair of the road; it was held that that conviction was conclusive evidence that the road lay in Hallam, and that an award under the Act was void as to that road, as the commissioners had only jurisdiction over roads in Ecclesall (z)

(v) Rex v. Stoughton, 2 Saund. 159, c. note (10); Rex v. Townsend, Dougl. 421, post, p. 525. () Rex v. Eardisland, 2 Camp. 494. (x) Reg. v. Blakemore, 2 Den. C. C. 410. (y) Reg. v. Haughton, 1 E. & B. 501 (72 E. C. L. R.). It was also held that a recital in an Act that the highway was in another township was only evidence, and did not prevail over the estoppel.

(z) Reg. v. Nether Hallam, 6 Cox C. C. 435. A verdict of guilty and judgment thereon

VOL. 1.-27

On an indictment for continuing a nuisance upon a highway, the judgment on an indictment for the same nuisance, which was the erection of a wall, is conclusive evidence, and no evidence to the contrary is admissible. (zz)

*Upon an indictment against the inhabitants of the township of B., it ap

*521] peared that the road indicted passed through three adjoining townships, B.,

Attercliffe, and T.; and the Court of Queen's Bench held that the record of an indictment against the township of Attercliffe for non-repair of part of the highway in that township, to which that township appeared to have submitted, was admissible for the purpose of proving that the way in question was a highway. It was clear that user by the public and repair by the township would be admissible as facts raising a presumption of highway; and an indictment was another fact of the same class: and proceedings at law to compel the repair of a highway (when submitted to) show the right as much or more than acts of repair without compulsion would have done.(a)

It has been held that the record of an acquittal upon an indictment for not repairing a highway is not evidence to show that the parish is not liable: on the ground that some other parties might have indicted them, and that those parties could not be bound by this record.(b) And a satisfactory reason for rejecting such evidence altogether seems to be that the acquittal might have proceeded upon the want of proof that the road was out of repair.(c) In the case of an indictment for not repairing a highway, which it was alleged the defendant was bound to repair ratione tenuræ, 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.(d)

The 5 & 6 Will. 4, c. 50, s. 100, enacts, that "no person shall be deemed incompetent to give evidence or be disqualified from giving testimony or evidence in any action, suit, prosecution, or other legal proceedings to be brought or had in any Court of law or equity, or before any justice or justices of the peace, under or by virtue of this Act, by reason of being an inhabitant of the parish in which any offence shall be committed, or of being a treasurer, clerk, surveyor, district surveyor, assistant surveyor, collector, or other officer appointed by virtue of this Act, nor shall such testimony or evidence for any of the reasons aforesaid be rejected or liable to be questioned or set aside." The inhabitants of a parish indicted for not repairing a highway were not competent to give evidence for the defendants,(e) under the 13 Geo. 3, c. 78, and it has been held that they were not rendered competent by the 54 Geo. 3, c. 124, s. 9.(ƒ)

*On an indictment for not repairing a highway, the prosecutor was ex*522] amined as a witness for the prosecution, and no objection was taken to his competency; (h) and it seems that the prosecutor was a competent witness, under the 13 Geo. 3, c. 78, for, though the Court was authorized to award costs against him in

in an indictment for obstructing a highway cannot be pleaded as an estoppel in an action brought by the party convicted against a person for using the way: Petrie v. Nuttall, 11 Exc. R. 569. Sed quære; for it is just like the case of an order of removal confirmed on appeal, which is conclusive against the parish as to all other parishes. See 2 Nol. P. L. 578.

(zz) Reg. v. Maybury, 4 F. & F. 90. Martin, B., on the authority of Reg. v. Haughton, 1 E. & B. 501 (72 E. C. L. R.).

(a) Reg. v. Brightside Bierlow, 13 Q. B. 933 (66 E. C. L. R.).

(b) Rex v. St. Pancras, Peake Rep. 219.

(c) Mann. Ind. N. P. R. 128.

(d) Rex v. Cotton, 3 Camp. 444, cor. Dampier, J.

(e) Rex v. Wadsworth, 1 B. & A. 63. See 15 East 474.

(f) Rex v. Bishops Auckland, 1 A. & E. 744 (28 E. C. L. R.); 1 M. & Rob. 286. This case was decided on the authority of Oxenden v. Palmer, 2 B. & Ad. 236 (22 E. C. L. R.). In Doe v. Adderley, 8 A. & E. 502 (35 E. C. L. R.), the court, after taking time to consider, held that rated inhabitants were competent witnesses, under the 54 Geo. 3. c. 124, s. 9, for the parish officers in an ejectment brought by them, and said, "we cannot agree with Oxenden v. Palmer, and the decisions to which it has given birth." So that Rex . Bishops Auckland seems to be overruled. See also Morrell v. Martin, 6 Bing. N. C. 373 (37 E. C. L. R.), and the 3 & 4 Vict. c. 26, s. 1, 6 & 7 Vict. c. 75, and 14 & 15 Vict. c. 99, post, Evidence.

(h) Rex v. Hammersmith, 1 Starkie R. 337 (2 E. C. L. R.).

case the proceeding was vexatious, (i) yet the Court would scarcely presume 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.(k) The 5 & 6 Will. 4, c. 50, does not give any costs against the prosecutor, so that he seems now clearly to be a competent witness.

Though the 13 Geo. 3, c. 78, s. 24, declared that no presentments or indictments should be removed by certiorari before traverse and judgment, except where the obligation of repairing came in question, yet this clause did 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.(1) And it was held to be no objection to a certiorari to remove such a presentment, that it was prosecuted by another than the justice presenting, if it were by his consent.(m) The 5 Will. & M. c. 11, s. 6, also provided, 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. 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.(n) And the prosecutor may remove an indictment by certiorari, though there be no recognizance given according to the statute.(o)

The general rule of a new trial never being allowed where the defendant is acquitted in a criminal case, formerly prevailed in a prosecution for not repairing a highway, though such prosecution is usually carried on for the purpose of trying or enforcing a civil liability.(p) But if the justice of the case seemed to require it, the Court used to stay the judgment upon payment of costs, until *another indictment [*523 was preferred for the purpose of trying the question of liability to repair. (q) But it is now held that where the proceeding is in substance merely to try a civil right a new trial may be granted after an acquittal,(r) and therefore a new trial would be granted in a case where the question was as to the liability to repair or the nonrepair of a highway; but not where the charge was a wrongful obstruction of a highway.(8)

The object of prosecutions for nuisances to highways is to effect either 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,(t) 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.(u) But writs of distringas are the

(i) By the 13 Geo. 3, c. 78, s. 64.

(m) Rex v. Penderryn, 2 T. R. 260.

(k) Rex v. Hammersmith, 1 Starkie R. 358 (2 E. C. L. R ), note (a). (1) Rex v. Bodenham, Cowp. 78. (n) Rex v. Taunton, St. Mary, 3 M. & S. 465. (0) Rex v. Farewell, 2 Str. 1209. Leave, however, must be obtained by motion in the same way by the prosecutor as by the defendants, by the 5 & 6 Will. 4, c. 33.

(p) Rex v. Silverton, 1 Wils. 298, cited 2 Salk. 646, in the note; Rex v. Mann. 4 M. & S. 327; Rex v. Cohen, 1 Starkie R. 516 (2 E. C. L. R.); Rex v. Reynell, 6 East 315; Rex v. Wandsworth, 1 B. & A. 63 (44 E. C. L. R.); Rex. v. Sutton, 5 B. & Ad. 52 (27 E. C. L. R.). (9) Rex v. Oxfordshire, 16 East 223. It was said by Lord Kenyon, C. J., in Rex v. Mawbey, 6 T. R. 619, "In misdemeanors there is no authority to show that we cannot grant a new trial in order that the guilt or innocence of those who have been convicted 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 (2 E. C. L. R.).

(r) Reg. v. Chorley, 12 Q. B. 515 (64 E. C. L. R.); Reg. v. Russell, 3 E. & B. 942 (77 E. C. L. R.); Reg. v. Leigh, 10 A. &. E. 398 (37 E C. L. R.).

(8) Reg. v. Russell, supra; Reg. v. Johnson, 29 Law J., M. C. 133; s. c., 2 E. & E. 613.

(t) Rex v. Pappineau, 1 Str. 58€; 1 Hawk. P. C. c. 75, s. 15.

(u) Rex v. Cluworth, 1 Salk. 358; 6 Mod. 163; 1 Hawk. P. C. c. 76, s. 249.

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. (v) 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.(w) In order to warrant a judgment for abating the nuisance, it must be stated in the indictment to be continuing; as otherwise such a judgment would be absurd.(x) 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, (y) 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.(z) *524] 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 5 & 6 Will. 4, c. 50, s. 96, enacts, that "no fine, issue, penalty, or forfeiture for not repairing the highway, or not appearing to any indictment for not repairing the same, shall hereafter be returned into the Court of Exchequer or other Court, but shall be levied by and paid into the hands of such person residing in or near the parish where the road shall lie, as the justices or Court imposing such fines, issues, penalties, or forfeitures, shall order and direct, to be applied toward the repair and amendment of such highway; and the person so ordered to receive such fine shall and is hereby required to receive, apply, and account for the same according to the direction of such justices or Court, or in default thereof shall forfeit double the sum received; and if any fine, issue, penalty, or forfeiture to be imposed for not repairing the highway, or not appearing as aforesaid, shall hereafter be levied on any inhabitant of such parish, township, or place, then such inhabitant shall and may make his complaint to the justices at a special sessions for the highways; and the said justices are hereby empowered and authorized, by warrant, under their hands, to make an order on the surveyor of the parish for payment of the same out of the money receivable by him for the highway rate, and shall, within two months next after service of the said order on him, pay unto such inhabitant the money therein mentioned."

(v) Rex v. Old Malton, 4 B. & A. 470 (6 E. C. L. R.), note.

(w) Rex v. Machynnleth, 4 B. & A. 469 (6 E. C. L. R.).

(x) Rex v. Stead, 8 T. R. 142.

(y) Rex v. Pappineau, ante, note (t); Rex v. The Justices of Yorkshire, 7 T. R. 467; Rex Stead, ante, note (x), and other cases cited in those.

(z) 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. Mawbey, 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 Court are about to impose a fine. In Rex v. Wingfield, 1 Blac. Rep. 602, where a person was convicted upon an indictment for not repairing a road ratione tenure, it was held that the Court would not inflict a small fine, on a certificate of the road being repaired, until the prosecutor's costs were paid.

(a) 1 Str. 686.

(b) Id. Ibid.

(c) By Ld. Raymod and Reynolds, J., 1 Str. 688, 9. (d) By Ld. Raymond, 1 Str. 688.

Upon the latter part of sec. 47 of the 13 Geo. 3, c. 78, which was similar to the preceding provision of the new Act, it was 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 [*525 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 (e) In a case where, 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 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.(ƒ) The 3 Geo. 4, c 126, s. 10, provides for a portion of the fine being paid by the turnpike trustees when the highway shall be a turnpike road; and enacts, that when the inhabitants of any parish, township, or place, shall be indicted or presented for not repairing any highway, being turnpike road, and the Court, before whom such indictment or presentment shall be preferred, shall impose a fine for the repair of such road, such fine shall be apportioned, 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.(g)

If a turnpike road be out of repair the inhabitants of the parish are liable to be indicted, although the tolls are appropriated by the Act to the repair of the road, and the inhabitants in such case must seek relief under the 3 Geo. 4, c. 126, s. 10.(h)

Where an indictment was preferred at the assizes under an order of two justices, pursuant to sec. 95 of the 5 & 6 Will. 4, c. 50, and the defendants were found guilty upon the trial of the traverse at a subsequent assizes, it was held that the judge had no discretion, but was bound to award costs to the prosecutor.(i) But where an indictment was preferred under a similar order, and tried at nisi prius, after having been removed by certiorari, and the defendants acquitted on the ground that the road was not a highway, it was objected that the prosecutor was not entitled to costs under sec.

95 of 5 & 6 Will. 4, c. 50; 1st, because that section *only applied to cases [*526

where the publicity of the road was admitted, but the liability to repair disputed; 2dly, that the section did not apply to cases where the indictment was removed by certiorari; 3dly, that sec. 95 was to be construed together with see 98, and merely meant that where the defence was frivolous the costs were to be paid out of the fund there mentioned; and it was held that the prosecutor was not entitled to the costs.(k) And it is now settled that there is no jurisdiction to make an order for

(e) Rex v. The Justices of Lancashire, 12 East 366.

(f) Rex v. Townsend, Dougl. 421.

(g) Rex v. Upper Papworth, 2 East R. 413.

(h) Reg. v. Preston, 2 Lew. 193, Alderson, B.

(i) Reg. v. Yarkhill, 9 C. & P. 218 (38 E. C. L. R.), Williams, J., after consulting the her Judges of B. R. See the section, ante, p. 509.

(*) Reg. v. Chedworth, 9 C. & P. 285 (38 E. C. L. R.), Patteson, J., after consideration. The ground on which the costs were refused, was that the road was not a highway. See Reg. v. Heanor, infra. His lordship intimated that he thought the last point untenable;