macadamized or gravelled roads, and also bridges, piers, wharves, slides and dams connected therewith), not less than two miles in length. § 2. Such intended road may be opposed by any twelve freeholders residing within half a mile of the intended line, and upon notice given by them to the president or chairman of such company, the work shall be suspended until after the next sitting of the municipal council having jurisdiction throughout the line, provided such notice be given before the work is commenced. § 3. The municipal council authorized to decide upon the matter. § 4. Companies to be composed of not less than five persons; § 5-with power to explore and appropriate lands. § 6. Affairs to be managed by five directors each stockholder entitled to a vote for each share. § 7. Number of shares may be increased or money raised by loan. § 8. Shares to be £5 each, and transferable. § 9. Companies may sue for arrears. § 10. Arbitrators to be appointed to compute damages; § 11-with provision in case of absentees and lands under mortgage, &c. ; § 12—also Indian lands. § 13. Provides for meetings of the arbitrators. § 14. The election of a president. § 15. The president and directors to fix the tolls to be received on any such roads: no toll to be taken until two miles of road are completed. § 16. The tolls not to exceed 1d. per mile from the gate to be passed to the last gate in the direction whence any person may have come for any vehicle drawn by two horses; and d. per mile for every additional one. For every vehicle drawn by one horse 1d. per mile; for every score of sheep or swine, and every score of neat cattle, d. per mile; for every horse and rider or led horse d. per mile. § 17. The company to report annually to the municipal council the amount received and expended. § 18. Shares to be forfeited if calls are not paid in 90 days after notice. § 19. Roads, &c. to be vested in the company. § 20. Power to erect toll gates: no toll to be exacted for merely crossing any road. § 21. Roads not more than five miles in length to be completed in two years after incorporation, otherwise their powers to cease.

PENALTIES.

§ 21. If any person shall in any way injure, cut, break down, or destroy any part of any such road, &c., he shall be guilty of misdemeanor, and punished by fine and imprisonment: any person removing any earth or materials belonging to the road, or driving any loaded vehicle between the hard road and the ditch further than necessary on passing another vehicle; or in turning off or doing any damage to the posts, rails or fences; or hauling upon the road any timber, stone or other thing, so as to drag or trail to the prejudice thereof; or leaving any wagon, &c., upon the road, without some proper person in care, longer

than necessary to load and unload; or laying any timber, stones, rubbish, or other thing, upon such road, to the prejudice, interruption and danger of any person travelling; or suffering any stone or other thing, and in blocking any cart wagon, &c., in going up a hill or rising ground, to remain on such road; or pulling down, damaging or destroying any lamp or lamp post; or extinguishing the light of any such lamp; or pulling down or damaging any table of tolls, or defacing any of the letters, figures or marks thereon, or on any finger-post or mile-post, or throwing any rubbish into any drain, ditch, culvert or watercourse; or carrying away any stones, gravel, sand or other materials, dirt or soil, from any part of such road; or digging any holes or ditches on the allowance for the same; or forcibly passing or attempting to pass any toll gate without paying the toll; such person shall, upon conviction before any justice of the peace near the place, be sentenced to pay all the damages, and a fine of not more than 50s., nor less than 5s.; § 23-to be levied by distress and sale, and in case of no sufficient distress offender to be committed for any period not exceeding one month. § 24. Any person evading the toll by turning out of the road and entering again beyond any toll gate, shall, for every such offence, forfeit 10s., on conviction before any one justice. § 25. Any person occupying adjoining lands suffering any person to pass through the same and evade the toll shall, for every such offence, on conviction before any one Justice, forfeit 20s. § 26. Municipalities authorised to take stock in any such roads; 27-and may loan money to such companies; § 28after 21 years municipality may purchase the stock at the current value. § 29, 30, 31, 32, relate to actions. § 33. All persons, horses or carriages attending funerals, or going to or returning from divine service on the Lord's Day, shall be free from toll. § 34. Rate of toll on intersected line of road to be limited to the part travelled upon. § 35. Companies to keep roads in repair, and in case of default may be indicted at any general quarter sessions.

See also titles "Counties," "Cities," "Police," "Incorporated Villages" and "Statute Labour."

Indictment for digging a hole in a Street, being the Queen's Highway. C. C. C.

County of

The jurors, &c. That A. F. late of, &c. yeoman, on to wit. the &c. with force and arms, at the township aforesaid, in the county aforesaid, in a certain street, being the Queen's com. mon highway there, called, used for all the Queen's subjects, with their horses, coaches, carts and carriages, to go, return, ride, pass, repass, and labour, at their free will and pleasure, unlawfully and injuriously did dig, and cause to be dug, a certain pit, containing in circumference fifteen feet, and in depth thirteen feet; and the same pit so as aforesai dug and caused to be dug in the street and highway aforesaid, from the day of ——, in the year aforesaid, until the day of the same month, in the year aforesaid, at the township aforesaid, in the county aforesaid, unlawfully and injuriously did continue; by reason whereof

the Queen's subjects, during the time aforesaid, could not go, return, pass, re-pass, ride and labour, with their horses, coaches, carts and other carriages, in, by, and through the same street and highway, as they were wont, and ought to do, without great peril and danger of their lives, to the great damage and common nuisance of all the liege sub. jects of our said lady the Queen, in, by, and through the same street and highway, returning, passing, re-passing, riding and labouring, and against the peace, &c.

Indictment for stopping up a Watercourse, whereby the Highway is overflowed.

to wit.

County of, The jurors, for our lady the Queen, upon their oath present, that A. O., late of the township of day of -, in the

day of

to

in the county aforesaid, on the year of the reign with force and arms, at the township aforesaid, in the county aforesaid, a certain ancient watercourse adjoining to the Queen's common highway, within the same township, leading from -, with gravel and other materials unlawfully and injuriously did obstruct and stop up, and the said watercourse so as aforesaid obstructed and stopped up from the said in the year afore. said, until the day of the taking of this inquisition, at the township aforesaid, in the county aforesaid, unlawfully and injuriously hath continued, and still doth continue, by reason whereof the rain and waters that were accustomed, and ought to flow and pass through the said watercourse, on the same day and year, and divers other days and times afterwards, between that day and the day of the taking of this inquisition, did overflow and remain in the Queen's common highway aforesaid, and thereby the same was, and yet is, greatly hurt and spoiled, so that the liege subjects of our said lady the Queen, through the same with their horses, wagons, carts and carriages, then and on the said other days and times could not, nor yet can, go, return, pass, ride and labour, as they ought and were accustomed to do, to the great damage and com. mon nuisance, &c.

HOMICIDE.

Homicide in law signifies the killing of a man by a man.1 Haw. 66. And may be classed according to the following degrees:

1. Justifiable homicide.

2. Homicide by misadventure.

3. Homicide by self defence.

4. Manslaughter.

5. Murder.

6. Self-murder.

1. Justifiable Homicide.

To make homicide justifiable, it must be owing to some unavoidable necessity to which the person who kills another must be reduced, without any manner of fault in himself.-1 Haw. 69. If any evil disposed person shall attempt feloniously to rob or murder any person in any dwelling-house or highway, or feloniously attempt to break any dwelling-house in the night time,

and shall happen in such felonious intent to be slain, the slayer shall be discharged.-24 H. VIII. c. 5. So, if rioters, or forcible enterers or detainers, stand in opposition to the justices' lawful warrant and any of them be slain, it is no felony. -Hale's Pl. 37. And if a man come to burn my house and I shoot out of my house, or issue out of my house and kill him; it is no felony.-Hale's Pl. 39. So, if a woman kill him that assaulteth to ravish her, it is no felony.-Ib. 36. If a person having actually committed a felony, will not suffer himself to be arrested, but stands on his own defence, or flies, so that he cannot possibly be apprehended alive by those who pursue him, whether private persons or public officers, with or without a warrant, he may be lawfully slain by them.-1 Haw. 70. So, if a felony hath actually been committed, and an officer having lawful warrant, arrest an innocent person, and such person assault the officer, the officer is not bound by law to give back, but to carry him away; and if in execution of his office, he cannot otherwise avoid it, but, in striving, kill him; it is no felony.-3 Inst. 56. Also, if a person arrested for felony break away from his conductors to gaol, they may kill him if they cannot otherwise take him. But in this case like. wise there must have been a felony actually committed.Hale's Pl. 36, 37. Also, if a criminal endeavouring to break the gaol assault his gaoler, he may be lawfully killed by him in the affray.-1 Haw. 71. In civil cases, although the sheriff cannot kill a man who flies the execution of a civil process, yet if he resist the arrest, the sheriff or his officers need not give back, but may kill the assailant.-Hale's Pl. 37. So, if in the arrest and striving together, the officer kill him, it is no felony.-Ib. 37. In all these cases (a) the party upon arraignment having pleaded not guilty, the special matter must be found; whereupon the party shall be dismissed without any forfeiture or pardon purchased.-Ib. 38.

2. Homicide by Misadventure.

Homicide by misadventure is where a man is doing a lawful act without intent of hurt to another, and death casually ensues.-Hale's Pl. 31. As, where a labourer being at work with a hatchet the head flies off, and kills one who stands by. -1 Haw. 73. Or where a third person whips a horse, on which a man is riding, whereupon he springs out and runs over a child, and kills him, in this case the rider is guilty of homicide by misadventure, and he who gave the blow, of

(a) Although such may be the law as laid down by ancient writers, common humanity will prompt officers to act with the greatest possible forbearance; and it must be a very extreme case of necessity that would justify homicide.

manslaughter.-1 Haw. 73. But if a person riding in the street whip his horse to put him into speed, and run over a child and kill him, it is homicide, and not by misadventure; and if he ride so, in a press of people with intent to do hurt, and the horse.killeth another, it is murder in the rider.-1 H. H. 476. If a person drive his cart carelessly, and it run over a child in the street, if he have seen the child and yet drive on upon him, it is murder; but if he saw not the child, yet it is manslaughter; but if the child had run the cross way, and the cart run over him before it were possible for the carter to make a stop, it is by misadventure.-1 H. H. 476. So, where workmen throw stones, rubbish, or other things from a house, in the ordinary course of their business, by which a person underneath happens to be killed, if they look out and give timely warning to those below, it will be homicide by misadventure; if without such caution it will amount to manslaughter, at least, if it was a lawful act, but done in an improper manner.- Fost. 262, 263. If the act be unlawful it is murder; and if a person meaning to steal a deer, in another man's park, shoot at the deer and by the glance of the arrow killeth a boy that is hidden in a bush, this is murder; for that the act was unlawful, although he had no intent to hurt the boy, nor knew of him. But if the owner of the park had shot at his own deer, and without any ill intent had killed the boy by the glance of his arrow, this had been homicide by misadventure, and no felony.-3 Inst. 56. And it is a general rule in case of all felonies, that wherever a man intending to commit one felony happens to commit another, he is as much guilty as if he had intended the felony which he actually commits.-1 Haw. 74.

Homicide by misadventure, though not felony, yet a person guilty thereof is not bailable by justices of the peace, but must be committed to the assizes.—1 Haw. 75. But if he is taken

only on a slight suspicion, the justices of the peace may bail

him.-2 Haw. 305.

3. Homicide by Self-Defence.

Homicide in a man's own defence is, where one who hath no other possible means of preserving his life from one who combats with him, on a sudden quarrel, kills the person by whom he is reduced to such an inevitable necessity. 2. And not only he, who upon assault, retreats to a wall or some such strait, beyond which he can go no farther, before he kills the other, is judged by law to act upon unavoidable necessity; but also he, who being assaulted in such a manner and in such a place, that he cannot go back without manifestly endangering his life, kills the other without retreating at all. 3. And not