wrong party. Suppose a mandamus issued to the Judge. It could not be said, that what took place was a hearing-The King v. the Justices of Gloucestershire (6). In The King v. Cawston the appeal was actually allowed.

LORD DENMAN, C.J.-It appears to me, that the words of the act fully warrant a decision that in every view meets the justice of the case. Parties improperly bring a man before the Justices, upon an application which fails. It would be too much to say that they are not the parties liable to pay the costs incurred in meeting the application.

WILLIAMS, J.—I am of the same opinion, on the express words of the statute. On one side, is an overseer making the application, and on the other, the party resisting it: there is then a hearing, and the Court make no order the party resisting is entitled to his costs against the party making the application.

:

COLERIDGE, J.-I am quite of the same opinion. I think there was a hearing in this case, and with reference to that point, I should decline adopting the test proposed, namely, would a mandamus lie to compel a hearing? The words of the 73rd section are, "if upon hearing, the Court shall not think fit to make any order thereon, it shall make an order for the costs."

WIGHTMAN, J.-I am of the same opinion. As soon as the parties come before the Sessions, there is, in effect, a hearing.

The indictment stated, that from time whereof, &c., there hath been and still is, a certain common and public bridge, &c. (describing it), and that one part of the said bridge lies in the township of A, and was out of repair, and that the inhabitants of the township of A, from time whereof, &c., have repaired, and have been used and accustomed to repair, &c. the said part of the bridge in the township of A. It appeared in evidence that the part of the bridge in the township of A. consisted of part of the centre arch of the bridge, and of three other arches, and that about the year 1806, the township of A. had widened the part of the centre arch which was in A. about six feet, making it about fifteen feet in width, instead of nine. The other arches in A. remained unaltered:-Held, that the indictment, charging a prescriptive liability to repair the bridge, was sufficient, as at all events the township still remained liable for the ancient part.

Semble, per Lord Denman, C.J. and Patteson, J., that the widening of the bridge was only in the nature of a repair, and did not so far alter the character of the bridge as to enable the township to throw the repair of the new part upon the county.

The indictment stated, that on the 22nd of December 1841, there was, and from time whereof the memory of man is not to the contrary, there hath been, and continually hitherto there hath been, and still is, a certain common and public bridge over the river Cherwell, commonly called "Nell Bridge," lying and being in a certain common highway, &c., for all the liege subjects, &c., on foot, and with their coaches, horses, carts, and carriages, upon and over the said bridge, to go, return, pass and repass, ride, and labour at their free will and pleasure; and that one part of the said bridge lies and is situate in the township of Adderbury East, in the county of Oxford, and the other part of the said bridge lies and is situate in the parish of Aynho, in the county of Northampton, and that the said part of the said bridge which lies and is situate in the township of Adderbury East, in the parish of Adderbury aforesaid, in the county of Oxford aforesaid, on the 22nd of December 1841, and continually from thence, until &c., was and yet is broken, ruinous, dangerous, and

с

in great decay, for want of needful and necessary upholding, maintaining, amending, and repairing the same, so that the liege subjects cannot pass, &c. as they ought. It then charged, "That the inhabitants of the township of Adderbury East aforesaid, from time whereof, &c., have repaired and amended, and have been used and accustomed to repair and amend, and of right ought to have repaired and amended, and still of right ought to repair and amend the said part of the said bridge which lies and is situate in the said township of Adderbury East, in the parish of Adderbury aforesaid, in the county of Oxford aforesaid, when and so often as it hath been or shall be necessary." It then charged the non-repair, &c. The second count called the bridge a horse-bridge, and the third count a foot-bridge, and charged the inhabitants of the township of Adderbury East with the same prescriptive liability.

Plea-Not guilty.

At the trial, before Parke, B., at the Summer Assizes for the county of Warwick, 1842, it appeared, that the bridge, called Nell Bridge, crossed the river Cherwell; that a part of the centre arch of the bridge was situate in the county of Northampton, and that the other part of the centre arch and all the rest of the bridge, including three other arches, was situate in the township of Adderbury East, in the county of Oxford; that the Oxfordshire part of the bridge, on the day laid in the indictment, was out of repair; and that the township of Adderbury East had its own officers, distinct from any other hamlet or township, or from the parish of Adderbury. It further appeared, that about the year 1805 or 1806, the main or centre arch of the bridge, both in Oxfordshire and Northamptonshire, had been widened from nine to sixteen feet, while the remainder of the arches, on the Oxfordshire side, remained unwidened, and as they were before. In 1840 and 1841, and up to the time of the trial of the indictment, William Gardiner was one of the churchwardens, and James Gardiner, the surveyor of the highways of the township of Adderbury East. They both lived in a house in the township, but there was no evidence to shew they were rated to any rates of the township. A witness proved, that in 1841 he had called upon and seen the Gardiners upon the subject of

the repair of the Oxfordshire part of the bridge, by Adderbury East, who stated, that the township of Adderbury had always repaired the bridge, and that they were willing to give any information upon the subject. They also produced certain books, which they said were the parish books, and which were in their custody, containing disbursements for repairs done to the bridge in several years by the township, commencing in 1771. In the year 1806, when the bridge was widened, the expense incurred by the township was 691.

It was objected, on the part of the defendants, that the declarations made by the Gardiners were not receivable in evidence, as they were not shewn to have been rated inhabitants, and might therefore have been called as witnesses; and that even if they were rated, they were competent witnesses for the Crown, since the statute 3 & 4 Vict. c. 26. Secondly, it was objected that the indictment, which charged a prescriptive liability in the inhabitants of the township to repair a certain common and public bridge, which had existed from time immemorial, was not supported by the evidence, which shewed that a considerable portion of the bridge, mentioned in the indictment, namely, to the extent in part of six feet in width, had been made so recently as the year 1805 or 1806.

The learned Judge admitted the evidence, and declined to stop the case upon the objection to the indictment, but gave the defendants leave to move to enter a verdict upon this point. The defendants were found guilty.

A rule having been obtained by Hayes, to enter a verdict for the defendants, and also for a new trial, on the ground, that the declarations should not have been received,

The Solicitor General (Sir W. W. Follett), Adams, Serj., and Humfrey, shewed cause. First, the declarations made by the Gardiners were properly received. The indictment was substantially against all the inhabitants of the township. They were all charged with this prescriptive liability. All the inhabitants, therefore, were parties to this record, and had such an interest that none of them could be compelled to give evidence against the township. The Gardiners were officers of the township, and inhabitants, and, being parties to the record

as defendants, their declarations were on that ground admissible against the township. The Gardiners were not less defendants, because they were not shewn to be rated. If the township was properly charged in this indictment, (as the jury have found it was,) all the inhabitants, and not those only who were rated, were the defendants. It may be, that in appeals, the rated inhabitants are the substantial parties-The King v. the Inhabitants of Woburn (1); but that case also decides, that the real parties whoever they may be, cannot be compelled to give evidence against themselves; and, therefore, their declarations are admissible-The King v. the Inhabitants of Hardwick (2). The case of The Mayor of London v. Long (3) was relied upon by the defendants; but that was the case of a declaration by an individual member of a corporation, which was held not admissible to affect the corporation aggregate. They also cited on this point Worrall v. Jones (4), and Marsden v. Stansfield (5). Secondly, the defendants are not entitled to have a verdict entered for them, on account of any misdescription of the bridge in the indictment. It is said, that the indictment charges the township with the repair of this bridge by immemorial liability, and that the indictment is not supported by the evidence, because as to one arch of the bridge, it has been proved to have been widened in modern times. The indictment treats it as an ancient bridge; and unquestionably the greater part of it is so. As to three of the arches, there has been no alteration at all, and the evidence proved that the whole was out of repair. The township, therefore, would at all events be liable to repair the old part, and as to that, at least, the indictment is supported. But as the evidence shewed that the township had widened the bridge, it may be very questionable if they are not bound to maintain the new part, as the inhabitants of a county are not bound to widen a public bridge The King v. the Inhabitants of Devon (6), and probably not to repair one widened by others unless necessarily widen

ed for public utility-The King v. the Inhabitants of the West Riding of Yorkshire (7). If the township is not liable to repair the new part, as well as the old, this indictment would not at a future time be conclusive against it, as to the whole, as it would be competent for the inhabitants to shew what part they had repaired. They also cited The King v. the Inhabitants of the County of Devon (8).

Kelly and Hayes, contrà. It is for those who seek to make use of these declarations to shew, that the parties making them are parties to the record. It is said, that they lived in a house in the parish, but that was not enough to shew them householders. They might have been lodgers only, or servants. It should have been distinctly shewn, that when they made the declarations they were householders.

[PATTESON, J.-The evidence is, that when the declarations were made, one was churchwarden and the other surveyor.]

But if from their situation as parties to the record, they would, in general cases, have been incompetent, that was not so here, as by the statute 3 & 4 Vict. c. 26, they were not only made competent witnesses, but their ability to refuse was also removed. Section 2. provides, that no churchwarden, overseer, or other officer for any parish, township, or union, or any person rated or assessed, or liable to be rated or assessed, shall be disabled or prevented from giving evidence on any trial, appeal, or other proceeding, by reason only of his being a party to such trial, appeal, or other proceeding, or of his being liable to costs in respect thereof, when he shall be only a nominal party to such trial, appeal, or other proceeding, and shall only be liable to contribute to such costs, in common with other the rate-payers of such parish, township, or union. If, therefore, they were made competent by this act, the ground upon which their declarations might have been previously admissible is gone. Secondly, the indictment was not supported, and the defendants were entitled to an acquittal. The indictment charges the township with the repair of the whole bridge, by prescription; but they cannot be liable by

prescription for the widened part, even though they made it. The whole is but one bridge; and no measurement is given in restriction of the liability of the defendants. [PATTESON, J.-This was widened by the township itself. It is not so clear, that it is not liable for the new part.]

The county would be liable for the new part-The King v. the West Riding of Yorkshire, The King the Inhabitants of Middlesex (9).

[PATTESON, J.-In the former of those two cases, the character of the bridge had been altered.]

The allegations in the indictment must be taken to refer to the whole of the structure in Oxfordshire, and a verdict against the defendants would conclude them as to all.

LORD DENMAN, C.J.-It does not appear that the act of Victoria that has been referred to, deprives the Crown in this case from using the declarations of the two inhabitants. That act removes any disability that existed to a party being a witness, on the grounds, either that he was rated, or a nominal party to the trial or other proceeding. He is not on that ground to be incompetent; but as a party, he still cannot be compelled to give evidence against himself; and, therefore, his admissions or declarations are receivable. Upon the second point, the question is, whether there is any misdescription of the bridge in the indictment. I think there is none; and we do all we can in favour of the township, if it is admitted that on a future occasion they may be allowed to excuse themselves, if they can do so, from any liability in respect of the more modern part of the bridge; but as has been observed in the course of the argument, as the widening of the bridge was their act, it may be very questionable whether they may not be bound to repair that part also. The indictment alleges, that there was and is a common public bridge, and that from time immemorial the inhabitants of the township have repaired it. If, notwithstanding the widening the whole bridge must still be considered the ancient bridge, the indictment is supported; but if the township can excuse themselves

(9) 3 B. & Ad. 210; s. c. 1 Law J. Rep. (N.S.) M.C. 16.

as to the new part, there is still the ancient bridge, and the township could shew the extent to which they were liable. I am of opinion, therefore, that there is no misdescription, and that the rule must be discharged.

PATTESON, J.-I am of the same opinion. The first point, when considered, does not depend upon whether the parties, whose declarations were received, were rated inhabitants of the township or not, but whether they were parties to the record. I do not understand why they should the less be so, though they are not rated. To what are they to be rated? It cannot be in the power of a parish or township to relieve individuals from a burthen of this nature, by not putting their names upon a rate. Upon an indictment of this kind against a parish, every inhabitant of the parish is liable: each and every inhabitant is a defendant upon the record, and although it may be that by some statutes an inhabitant may be called on behalf of the others against the Crown, it by no means necessarily follows, that the Crown could by subpoena compel him to give evidence against himself. If that is so, his declaration may be given in evidence against him, as the admission of a party to the record. Upon the other point, I am inclined to think, (though it is not necessary to decide the point,) that the township, under these circumstances, would be liable for the added, as well as the old part of the bridge. The Middlesex case was very different. There the character of the bridge was altered. Here, I much doubt whether the widening is anything more than a repair. But supposing the township not to be liable for the whole, then the question arises, whether the indictment is supported.-[His Lordship read the allegations.]—It is said, the defendants are not liable for the added part, as it is no part of the ancient common bridge, to which only the prescription attaches. If that is so, then the statement in the indictment does not include that part, but only the ancient bridge.

WILLIAMS, J.-I am of the same opinion. The admissibility of the declarations depends upon the fact, of whether the persons making them were parties to the record, which again depends upon whether they were inhabitants or not. They were proved to be inhabitants, and as such, were parties, inasmuch as any

fine imposed might be exacted from all or any of the inhabitants. Upon the other point, I think it is no objection to this indictment, that possibly the evidence not only shewed such a bridge as is set out and described in the indictment, but something

more.

COLERIDGE, J.-I think we should give a wider extent to the act of Victoria than was intended, if we were to put upon it the interpretation contended for. The 1st section prevents the incompetency of persons, as witnesses, from the fact of their being rated inhabitants, or liable to be rated. The 2nd section enables actual parties to be witnesses. But neither section provides, that persons who are parties to the record shall be compelled to give evidence against themselves. Secondly, are the allegations in the indictment proved? The material allegations state this to be an ancient common bridge. The evidence shewed it was such a bridge, to which something had been done. Then, either all is still the ancient bridge, and the liability of the township is extended to the whole, or the new part must be severed, and then there is the ancient bridge, and something more. In whichever way, therefore, it is received, are not the allegations in the indictment proved?

1843. Nov. 15.

Rule discharged.

THE QUEEN v. THOMAS BAMBER
THE YOUNGER.

Highway, Non-repair of—Destruction of Way by encroachment of the Sea.

Where, on an indictment for the non-repair of a highway, ratione tenure, the jury found specially that the original way adjoined the sea, which had encroached upon and carried away a portion of the land over which the highway went, and part of the lands in respect of the tenure of which the liability to repair the way attached, and that the defendant had from time to time appropriated other portions of his lands in lieu of such parts as had been washed away; and that, shortly before the period mentioned in the indictment, the sea had made another encroachment, and swept away a large portion of the road altogether, and had left the rest so narrow on the brow of a cliff as to be impassable :-Held, that

this finding did not warrant a judgment for the Crown.

Error from the Lancashire Quarter Sessions.

The indictment stated, that, from time whereof, &c. there was and yet is a certain common and public highway, leading from the hamlet and village of Blackpool, in the county of Lancaster, towards and unto the hamlet and village of Bispham with Norbreck, in the said county, used for and by all the liege subjects, &c. with their horses, carts, and carriages, at their free will, &c. And that a certain part of the said common public highway, lying and being in the township of Layton with Warbreck, in the said county, commencing at a certain gate in the road, then abutting on the boundary between the township of B. with N. aforesaid, and the township of L. with W. for the space of 131 yards, and of the length of 131 yards, and of the breadth of 6 yards, on the 1st of June, A.D. 1842, and from thence, &c., was and yet is very ruinous, broken, and in great decay for want of due restoration, reparation, and amendment of the same, so that the liege subjects, &c. could not go, return, &c. And that Thomas Bamber the younger, of the township of L. with W. aforesaid, husbandman, by reason of his tenure of certain lands and tenements situate in the township of L. with W. aforesaid, in the county aforesaid, called the Gyn, ought to repair and amend that part of the highway aforesaid, so as aforesaid being ruinous, broken, and in decay, when and so often as there should and might be occasion, and that the said defendant had not done the same. Plea-Not guilty.

The indictment was tried at the Quarter Sessions for Lancashire held at Preston in that county, and the finding of the jury was afterwards turned into the following special verdict :

The jurors, upon their oath, say, that from time whereof the memory of man is not to the contrary, there have been and still are, (except and subject as hereinafter mentioned,) certain ancient lands and tenements situate in the township of Layton with Warbreck aforesaid, in the county aforesaid, called the Gyn, being the said lands and tenements in the said indictment mentioned, and by reason of the said Thomas Bamber the