These decisions are analogous to the spirit of 41 G. III, c. 109, s. 9; since which act it is decided that roads adopted and made longer by commissioners of enclosure, as well as those newly made by them under their award, must be certified by the special sessions to be fully completed and repaired, before they can become such roads as the parishes are bound to repair (z).

A corporation may be indicted at the sessions for disobeying an order made by justices under a local act for not repairing a highway, as a corporation aggregate can only appear by attorney, which they cannot do at sessions: the indictment should then be removed into the queen's bench by certiorari, and distress infinite lies to compel appearance (a).

Modes of Prosecution.]-We have already seen that a public way out of repair might formerly (b) be presented by a justice; and that such presentment, when formally made, had all the force of an indictment; but this never affected the common law remedy of indictment, which might then be adopted on the part of the public as fully as it may now (c). The usual process on such indictment against a parish is by venire facias ad respondendum (d) served on any two of its inhabitants who live in the county in which the bill is preferred, to compel their appearance. Upon these two may the whole fine be levied. As to their reimbursement, see p. 410, notis.

Where the grand jury of a county repeatedly refuse to find a bill against a county for the repair of a dilapidated bridge (e), the court of queen's bench will grant an information against the county; but that extraordinary remedy will not be allowed, unless absolutely essential for the purposes of justice (ƒ). Such a rule was, a few years ago, granted against the county of Berks, the grand jury having, from a mistaken view of the law, repeatedly thrown out the bills. The proceedings on a presentment when made, an indictment found, or an information exhibited, are exactly similar.

(z) R. v. Hatfield (Inh.), 4 Ad. & El.

156.

(a) Reg. v. Birmingham and Gloucester Railway Company, 3 Q. B. R. 223.

(b) Viz. before 5 & 6 W. IV. c. 50, see s. 99, ante, p.232, and as to these prosecutions directed by special sessions, id. s. 95.

(c) The "trinoda necessitas" to which, in the Saxon times, all lands were subject, consisted of "Pontis reparatio arcis constructio expeditio contra hostem." 1 Bla. C. 262; 2 id. 102. This pontis reparatio must be understood to include the repair of roads, 2 Bla. C.

357; but the inhabitants of a county or a parish are not, at common law, indictable for not widening bridges or roads which have become too narrow for the increased traffic of modern times, R. v. Devonshire (Inh.), 4 B. & Cr. 670, in Burn, tit. Highways.

(d) Or distringas, ante, p. 229.

(e) See as to the common law remedy of indictment since 5 & 6 W. IV. c. 50, s. 94, 95, ante, p. 47, 48, and post, p. 403.

(f) R. v. Steyning, Sayer's R. 92.

Requisites of Indictment or Presentment against Parishes or Counties for not repairing Highways or Bridges.]—Indictments against a parish for the common nuisance of not repairing highways, and indictments and presentments against a county for not repairing bridges, must allege affirmatively that the way or bridge is public; that it lies within the parish or county which is alleged to be bound to repair (g), and that it is out of repair; and should conclude by alleging that the inhabitants of the county or parish, or that a corporation aggregate, or a railway or canal, &c. company (h) are bound to repair it. If the bridge or way was a highway for all purposes (i. e. public) at the time of the nuisance committed in not repairing, &c. or obstructing it, the term highway (i) is sufficient, the words "common and public" being mere repetition; but if the highway is stated to have been such from time immemorial, which is unnecessary(k), the prosecution would fail, should it appear that sixty years ago it was put an end to by an inclosure act, though it has been since used and repaired by the district indicted (1). If there be a limitation in the right of way, as if it is only used by the public when it is dangerous to pass through an adjacent stream, such limitation. should be stated (m). It is not necessary to state the termini of the

(g) Halsey's case, Latch. 183, cited 1 H. Bla. 356. "To" Kensington held to exclude Kensington, Ibid. "From and to," do not necessarily exclude the place named, R. v. Knight, 7 B. & C. 413, though so held in R. v. Gamlingay, 3 T. R. 513; 1 Leach, C. C. 528, S. C.; and again since R. v. Knight, in Reg. v. Botfield, 1 C. & Mar. 151; (R. v. Knight, not cited). See R. v. Camfield, 6 Esp. 136; R. v. Steventon, C. & Kir. 55.

"From and through" places named, is said to exclude the termini, R. v. Upton, 6 C. & P. 133, per Tindal, C. J. As to "towards," see 3 Ad. & El. 181, Lempriere v. Humphrey; and 1 East, 377, Wright v. Rattray (cited in 7 B. & Cr. 266, De Beauvoir v. Welch); Rouse v. Bardin, 1 H. Bla. 351. "Abutting on," see 3 Ad. & E. 183. "Towards and unto B." are satisfied by a line of way to B. which turns backwards, in the middle, and then returns to B. by a way recently dedicated, R. v. Downshire (Marchioness), 4 Ad. & E. 232.

"From

and through the town of U. towards the parish of G." excludes (Hammond v. Brewer, 1 Bur. 376) the terminus U., so as not to permit a prosecutor to show a road in U. to be out of repair, R. v.

Upton-on-Severn, 6 C. & P. 134, per Tindal, C. J.; for, though a township is not necessarily conterminous with a parish, it may be bound by custom to repair a highway within it. "From the town of C. to a place called H. hill, and that defendant illegally erected gates between the said town of C. and H. hill," Patteson, J., held the town excluded; Reg. v. Fisher et al. 8 C. & P. 612; 2 Saund. 158, a, n. 6.

(h) Reg. v. Birmingham and Gloucester Railway Company, 9 C. & P. 409, Parke, B.; 1 Gale & D. 457, S. C.; 2 Q. B. R. 47, 233.

(i) 2 Saund. 158 n. (4), citing Aspindall v. Brown, 3 T. R. 265.

(k) 2 Saund. 158, d; Dyer, fol. 33; R. v. Jones, 2 B. & Ad. 611; R. v. Hollingberry, 4 B. & C. 329.

(1) Reg. v. Westmark (Tithing), 2 M. & Rob. 305, Maule, J.

(m) Allen v. Ormond, 8 East, 4, note (a); R. v. Northamptonshire (Inh.), 2 M. & S. 262. An allegation of a "pack and prime" way is not supported by proof of a "carriage" way, and the defendants will be acquitted, R. v. St. Weonard's, 6 C. & P. 582, Alderson, J.

way, but when stated they must be proved, and a variance in this respect will be fatal (n). It is usual to state the extent of the way which is out of repair; but it may be doubted whether this is necessary; however, though the court does not at present estimate the fine from the description of the length and breadth of the nuisance, its insertion cannot prejudice (0). Objection to the too general description of a road in an indictment can only be taken by plea in abatement (p). When the indictment is against an individual, or select body, on a peculiar obligation against common right, it is not sufficient to state a liability to repair, but it is necessary to show how that liability arises, as "by reason of the tenure or inclosure of certain lands;" or in the case of an extra parochial hamlet or hundred not otherwise liable, a usage "from time immemorial" (q). The inhabitants of the several townships in a parish may be conjointly indicted for not repairing a road in it (r).

Plea, and inspecting Parish Books.]-Whenever the defence to an indictment or presentment is, that the road or bridge is not within the parish so indicted, or is not a highway (that is, not public), or is not out of repair, the ordinary plea of not guilty is proper (s). And where any private individual, or body of persons other than the county in the case of a bridge, and the parish in case of a road, are made defendants, they may dispute not only these matters on the general issue, but also their liability to repair. A plea of guilty to a former indictment against the same parish, &c. for not repairing the same highway, seems conclusive evidence that it is a public way; however, where a county is indicted at the instance of a parish for not repairing a bridge, and the question is by which of those bodies it is to be repaired, the court of queen's bench will not order inspection by the county of the parish books and documents relating to the former repairs (t).

But where the county or parish are prosecuted, and they seek to discharge themselves from liability, on the ground that some other persons

(n) Rouse v. Bardin, 1 Hen. Bla. 351; 6 C. & P. 582.

(0) 2 Saund. 158, n. 7.

(p) R. v. Hammersmith (Inh.), 1 Stark. 357, e. g., by stating that the road described in the plea was equally well known by the description given in the indictment, per Lord Ellenborough.

(9) 2 Saund. 158, n. 9; R. v. Kingsmoor (Inh.), 2 B. & Cr. 190, post.

(r) R. v. Auckland (Inh. of three townships named), 1 A. & E. 744; S. C. 1 M. & Rob. 286. See 2 B. & C. 166, R. v. Machynleth.

(8) R. v. Northamptonshire (Inh.), 2 M. & S. 362. It will be some evidence that the bridge is not public, that private persons have in fact repaired it. Ibid. For whatever a prosecutor is bound to prove on the general issue, a defendant may controvert the truth of by opposite evidence, R. v. Norwich (Inh.), Stra. 181.

(t) R. v. Berks (Justices), 8 B. & C. 875; for the books are not public but parochial only and see R. v. Whitney, 7 C. & P. 208, A. Park, J.

than themselves are bound to repair, e. g. by reason of tenure or inclosure of certain lands, taking of toll, &c., they must plead such liability in a special plea; and this, even though the alleged liability be thrown on a part of the same parish or county indicted (u). And such special plea must not only state who is bound to repair, but how the obligation arises (x).

Proceedings at Sessions: Plea - Evidence Respiting Sentence till Justices certify that Road is in Repair.]—In indictments for not repairing highways when the defendants (who under the highway act 5 & 6 W. IV. c. 50, s. 94, may be either the surveyors of the parish, or other parties liable to repairs), intend to try, they plead at the same sessions at which the bill is found, and, in general, traverse to the next : the trial afterwards proceeds as in ordinary cases of misdemeanour, Persons rated or liable to be rated or assessed to the relief of the poor, or for and towards the maintenance of church, chapel, or highways, or for any other purpose whatever, are no longer (y) disabled from giving evidence on that account only. The same provision is extended to nominal parties, e. g. parish officers, &c., who are only liable to contribute to the costs of a trial in common with other ratepayers (z).

2 Saund. 159, b. n. 9 and 10. (x) Id. ibid. See forms, post.

They were formerly incompetent to discharge a parish from the burden of repairing a highway, 4 Mod. 48, 49; 1 St. Ev. 2nd edit. 144.

(z) 3 & 4 V. c. 26. Stated at length, post, Ch. X. sect. 2; and see 6 & 7 V. c. 85, post.

Inhabitants or persons rated or liable to be rated to rates or cesses, (semble, properly applicable to poor's rates see 8 Ad. & E. 507,) of any district (qu. if includes county?) or parish, or wholly or in part maintained thereby, or holding office therein, were made competent witnesses for or against such district, inter alia, in any matter relating to such rates or cesses, by 54 G. III. c. 170, s. 9.

In Heudebourck v. Langston, M. & M. 402, n., debt by a new surveyor to recover a penalty from his predecessor for not accounting, inhabitants were admitted by Lord Tenterden under that act as witnesses for the plaintiff, though their evidence tended to increase the fund in relief of the highway rate; Tindal, C. J., afterwards admitted rated inhabitants of

a parish to give evidence in support of an indictment against parties charged ratione tenure for not repairing a bridge and highway situate in the parish (R. v. Hayman, M. & Malk. 401, cited 2 B. & Adol. 241, Oxenden v. Palmer), which prosecution probably was by the parish. See by Bayley, J., 2 B. & Adol. 241. But it was afterways held, that the evidence of persons thus situated was not made admissible by this act for such inhabitants of a district or others as might be defendants in a prosecution against a parish for not repairing a highway, R. v. Auckland (Inh. of three townships named), ante, p. 402. The court seemed to have relied (as to this point) on Oxenden v. Palmer, now disapproved. However, this judgment was much questioned, and in 1838 the queen's bench held, that in ejectment by or against parish officers claiming to hold premises as parish property under 59 G. III. c. 12, s. 17, rated inhabitants were competent witnesses for the parish officers, Doe d. Boultbee v. Adderley, 8 Ad. & E. 506, overruling Oxenden v. Palmer, 2 B. & Adol. 236, and the cases to which it gave birth. As to the

But when, as often happens, no defence is intended, the defendant pleads guilty, and sentence of fine is respited from time to time until the repairs are completed, when, on a certificate to the court by two magistrates, that the road is in good repair, the court will assess a nominal fine (a). So if it be certified in like manner that the way has been, since the commencement of the prosecution, diverted by order of justices, the sentence will be merely nominal (b). Inhabitants are not bound to put a way in a better condition than it has been time out of mind, but into such a condition as it has usually been at the best (c). At some sessions the practice is not to discharge the inhabitants from the indictment, upon the justices' certificate that it is in repair, and likely to remain so, till the road has undergone a winter's wear; and Coleridge, J., has acted on this principle in the queen's bench in the case of an indictment of this kind removed there by certiorari (d). Inhabitants confessed an indictment for not repairing a way. The court did not set a fine till after some neighbouring justices had certified it to be sufficiently repaired. After the fine was paid, the court said that writs of distringas might still be awarded to the sheriff against the defendants, ad infinitum, till the sheriff should certify the way to be

other and single ground on which Oxenden v. Palmer, 2 B. & Adol. 236, might be sustained, see S. C., and arguendo R. v. Bishop's Auckland (Inh.), 1 Ad. & E. 746; and per Littledale, J., in Doe d. Hobbs v. Cockell, 4 Ad. & E. 483; a principle since adopted by the legislature in 3 & 4 V. c. 26, which, with the more general provisions of Lord Denman's act, 6 & 7 V. c. 85, see post, Ch. X. sect. 2.

(a) Sir T. Raym. 215, and cases collected, 6 T. R. 631. The common law judgment was a fine for the offence and a distringas to remove the nuisance, and then the party caused a constat to issue to the sheriff, who returned that the way was repaired; ibid. 1 Hawk. c. 76, s. 94; R. v. Incledon, 13 East, 164. See 6 Mod. 163. Where an indictment for not repairing a road ratione tenure is removed into the queen's bench, the defendant will not be discharged on producing the usual affidavits, viz. that the road has been actually repaired since the conviction, and is likely to continue so, till after he has pleaded guilty, and paid the fine; R. v. Lincomb, 2 Chit. R. 214; R. v. Loughton, 3 Smith's R. 575; and it is reported to have been held

by Bayley, J., that the indictment will
not be quashed because the evidence
afforded against the parish by the con-
viction would be thereby destroyed, R. v.
Lincomb, 2 Chit. R. 214. The prose-
cutor's costs must, in the queen's bench,
be paid down to the time when the de-
fendant makes a submission accepted by
the court, or to the judgment, if the
conviction is by verdict, R. Wingfield,
1 Bla. R. 603. At the assizes, defen-
dants who are under recognizance to try
a traverse of a highway indictment must
take it to the under-sheriff in order to
his returning the venire, and then enter
it with the marshal, before it can be dis-
charged on the magistrate's certificate.
(So stated by Mr. Bellamy, clerk of
assize, on the Oxford Circuit, cor.
Vaughan, B., at Salop, Lent Assize,
1829. MSS. Tyr.)

(b) R. v. Incledon, 13 East, 166.
(c) Regina v. Cluworth (Inh.), Salk.

358.

(d) R. v. Witney (Inh.), 5 Dowl. P. C. 728, a rule for a fine for non-repair of a road will not be made absolute in the winter, and will be enlarged to Easter term, R. v. Walton (Inh.) 4 Jurist, 195.