amended, and have used and accustomed to repair and to amend, and of right ought to have repaired and amended, and still of right ought to repair and amend, the said highway, so being in decay, as aforesaid, when and so often as it hath been and shall be necessary (t).

Indictment for not repairing a Part of a Highway situate in a Parish which lies partly in a City, being a County of itself, and partly in the County at large, against the whole Parish (u).

That long before, and at the time of the commencement of the nuisance hereinafter mentioned, there was, and of right ought to have been, and still is, and of right ought to be, a certain common and public queen's highway, leading from that part of the parish of St. Olave, in the city of L. and county of the same city, which lies near to a certain place there called the Dean's-yard, unto a certain place called and known by the name of the Old Lane, in that part of the parish of St. Olave which lies in the county of L. for all the liege subjects of our said Lady the Queen, with

their horses, coaches, carts, and other carriages, to go, return, pass, repass, ride, and labour, at their will and pleasure; and that a great part of the said parish of St. O. is situate in the city of L. and county of the same city, and the residue of the same parish is situate in the said county of L. and that a certain part (x) of the said queen's common highway, situate, lying, and being in that part of the said parish of St. O. which lies in the said county of L. [commencing (y) opposite to a certain cross called and known by the name of Cow-cross, situate in that part of the said parish of St. O. which lies in the said county of L. and extending to a certain place called Knight's-house, at the commencement of the Old Lane aforesaid,] and containing in length two thousand and two hundred yards, and in breadth forty feet, on, &c. and continually afterwards, until the day of the taking of this inquisition, at that part of the said parish of St. O. which lies in the said county of L. was, and yet is, very ruinous, miry, deep, broken, and in great decay for want of due reparation and amendment of the same, so that the liege subjects of our said Lady the Queen, in and through the same part of the said way, so as aforesaid being in decay, with their horses, coaches, carts, and other carriages, could not, during the time last aforesaid, nor yet can, go, return, pass, repass, ride, and labour, as they ought and were wont to do, without great danger of their lives, and the loss of their goods; to the great damage and common nuisance of all the liege subjects of our said Lady the Queen, in and through the same way going, returning, passing, repassing, riding, and labouring; and against the peace, &c. And that the inhabitants of the said parish of St. O. in the city of L. and county of the same city, and the inhabitants of the same parish of St. O. in the said county of L. [Conclusion as in the last precedent.]

Indictment against the Corporation of G. for not repairing a Highway which they are bound to repair by Custom (z).

That from time whereof the memory of man is not to the contrary there has been, and still is, a certain ancient and common queen's highway, leading from a certain place called Dunstan's Cell, in the parish of All Saints, in the city of G. in the said county of G. into a certain lane called Shire-lane, in the parish of H. in the said county of G. for all the liege subjects of our said Lady the Queen, with their horses, coaches, carts, and carriages, to go, return, pass, repass, ride, and labour, at their will and pleasure; and that a certain part of the said queen's highway, containing in length, &c. and in breadth, &c. and lying in a certain street called Bennet's-wall, in the parish of All Saints aforesaid, in the said city of G. aforesaid, on, &c. and continually from thence afterwards, until the day of the taking of this inquisition, at the said parish, in the said city of G. and county of G. was, and yet is, miry, ruinous, broken, dirty, and in great decay, for want of the due reparation and amendment of the same, so that the liege subjects of our said

(a) This is sufficient even if the bridge has been widened by defendants, for they are either liable to repair the whole (as seems most probable), or at all events the ancient part, and could show to what extent they were liable, Reg. v. Adderbury (East) Township, 13 L. J.

(M. C.) 9.

(y) As to stating termini and abuttals, see ante, p. 401, &c.

(z) See 9 C. & P. 469; 3 Q. B. R. 223; Reg. v. Birmingham and Gloucester Railway Company, ante.

Lady the Queen through the same way, by themselves, and with their horses, coaches, carts, and carriages, could not during the time aforesaid, nor yet can, go, pass, repass, ride, and labour, without great danger of their lives, and loss of their goods; to the great damage and common nuisance of all the liege subjects of our said Lady the Queen through the same way going, returning, passing, repassing, riding, and labouring; and against the peace, &c. And that the mayor, aldermen, and burgesses of the city of G. aforesaid, by reason of ancient custom, from time whereof the memory of man is not to the contrary (a), during all the time aforesaid, the common highway aforesaid, above particularly mentioned and described (so as aforesaid being in decay), have been accustomed to repair and amend, and of right ought to have repaired and amended, and still of right ought to repair and amend when and as often as occasion hath required and shall require.

Indictment against a County for suffering a public Bridge to decay.

That, on, &c. there was, and from thence hitherto hath been, and still is, a certain common and public bridge, commonly called High-bridge, otherwise Haigh-bridge, situate and being in the parish of B. in the county of N. in the common queen's highway leading from the town of B. in the county aforesaid, towards and unto the town of C. in the same county, being a common highway for all the liege subjects of our said Lady the Queen on foot, and with their horses, coaches, carts, and other carriages, to go, return, pass, repass, ride, and labour; and that the said common and public bridge, on the said, &c. aforesaid, and continually from thence until the day of the taking of this inquisition, at the parish of B. aforesaid, in the county aforesaid, was, and yet is, ruinous, broken, dangerous, and in great decay for want of needful and necessary upholding, maintaining, amending, and repairing the same, so that the liege subjects of our said Lady the Queen, in, upon, and over the said bridge, on foot, and with horses, coaches, carts, and carriages, could not, and cannot pass and repass, ride, and labour, without great danger of their lives and loss of their goods, as they ought and were accustomed to do, and still of right ought to do; to the great damage and common nuisance of all the liege subjects of our said Lady the Queen, upon and over the said bridge, on foot, and with their horses, coaches, carts, and other carriages, about their necessary affairs and business, going, returning, passing, riding, and labouring; and against the peace, &c. And that the inhabitants of the county of N. aforesaid, of right have been, and still of right are, bound to repair and amend the said common bridge, when and so often as it shall be necessary.

(a) This allegation of immemorial usage is also sufficient to charge a particular body less or other than a county or corporate body, with the repair of a bridge;-e. g. a parish, R. v. Hendon (Inh.), 4 B. & Ad. 628; a corporation by prescription, R. v. Stratford-onAvon, 14 East, 348; see the indictment in the case of Kingston-bridge, 6 M. &

S. 365, note; a hundred, R. v. Oswestry, 6 M. & S. 361; a township, R. v. Ecclesfield, 1 B. & Ald. 348; R. v. Machynleth and Penygoes, 2 B. & C. 166; R. v. West Riding, Yorkshire, 4 B. & A. 623; Reg. v. Heage (Inh.), 2 Q. B. R. 128; and see p. 410, an extra parochial place, R. v. Kingsmoor, 2 B. & C. 190; 2 Saund. 158, n. (g).

Indictment against a Private Individual bound ratione tenure to repair, for suffering a Bridge to decay.

That there is, and from time whereof the memory of man is not to the contrary there hath been, a certain public and common bridge in the parish of D. in the said county of B. over the river W. commonly called D. bridge, situate in the queen's common highway leading from the town of D. in the said county of B. to the town of R. in the same county, for all the liege subjects of our said Lady the Queen, and her predecessors, to go, return, ride, and travel on horseback, and with their cattle, carts, and carriages, upon, along, and over, at their will and pleasure; and that the said public and common bridge, on, &c. and from thence continually afterwards, until the day of taking this inquisition, was, and yet is, ruinous, in decay, and out of repair, and insufficient, and without any parapet, building, erection, or defence whatever on the sides thereof, to prevent horses and other cattle, carts, and carriages, going, returning, passing, and travelling, upon, along, and over the said bridge, from falling from thence into the said river, so that the queen's liege subjects could not, during all the time last above mentioned, nor yet can, go, return, ride, and travel upon, along, and over the said bridge, without great danger of their lives, and loss of their horses and other cattle, carts, and carriages; to the great damage and common nuisance of all the said liege subjects going and returning, riding, and travelling upon, along, and over the said bridge; and against the peace, &c. And that C. M. late of, &c. [by reason of his tenure of certain lands] (b), situate, lying, and being at D. aforesaid (c), in the said county, during all the time aforesaid, was and still is bound to repair and amend the said bridge (d), when and as often as it hath been and shall be necessary, and to make the same sufficient, safe, and secure, so that the liege subjects of our said Lady the Queen may pass, repass, ride, and travel upon, along, and over the said bridge, without danger of their lives, or loss of their horses and other cattle, carts, and carriages, &c.

Plea of the General Issue by the Inhabitants of a Parish to an Indictment for not repairing a Highway.

And A. B. and C. D. two of the inhabitants of the said parish of G. H. by E. F.

(b) This is sufficient allegation of the obligation of a private person to repair a bridge or road, ratione tenure, Reg. v. Bamber (Inh.), 13 L. J. (M. C.) 13; 2 Stark. Cr. Pl. 669, and the authorities there cited. Ratione tenure implies immemoriality, R. v. Hayman, M. & Malk. 401, ante, p. 403. The ownership of a navigation is not equivalent to tenuræ, unless made so by act of parliament set out in the indictment.

(c) If the way lies in parish A. and the liability is laid in respect of lands there, the indictment is not supported by proof of liability to repair a way extending through A. and other parishes, by reason of tenure of a farm made up of lands in A. and the other parishes. See Reg. v.

Mizen, 2 M. & Rob. 382.

(d) If he is only liable to repair part of the main arch of a bridge, which part is in a public township, it may be thus laid, "the said part of the said bridge which lies and is situate in the said township of -," though it may have been widened since legal memory, and he may not be bound to repair the added part, Reg. v. Adderbury (East) ante.

Semble, if a highway is swept away by incroachment of the sea, with parts of the land, in respect of tenure of which, the owner is bound to repair such way, the party bound to repair ratione tenure is not liable to be indicted for not repairing, Reg. v. Bamber (Inh.)

their attorney, for themselves and the rest of the inhabitants of the said parish, come into court here, and having heard the said indictment read, say that they are not guilty of the said premises in the said indictment above specified and charged upon them, and of this they put themselves upon the country, &c.

Plea by the Inhabitants of a Parish to an Indictment for the Nonrepair of a Highway, that an Individual is bound to repair, ratione tenure (d).

And C. D. and E. F. two of the inhabitants of the said parish of G. H. by A. B. their attorney, for themselves and the rest of the inhabitants of the said parish, (excepting one L. M.) come into court here, and having heard the same indictment read, say that our Lady the Queen ought not further to prosecute the said indictment against the inhabitants of the parish aforesaid, (excepting the said L. M. as aforesaid,) because they say that as to the said part of the said highway in the said indictment described to be ruinous, miry, deep, broken, and in great decay, the said L. M. by reason of the tenure of certain lands and tenements called, lying and being in the said parish, ought to repair and amend the said part of the said highway, so alleged to be ruinous, miry, deep, broken, and in decay as aforesaid, when and so often as there should be occasion (as the said L. M. and all those who held the said lands and tenements for the time being, from time whereof the memory of man is not to the contrary, hitherto were used and accustomed, and of right ought to do, and the said L. M. still of right ought to do). And this they the said C. D. and E. F. are ready to verify; wherefore they pray judgment, and that they and the rest of the inhabitants of the said parish of G. H. (excepting the said L. M. as aforesaid) by the court here may be dismissed and discharged from the said premises in the said indictment above specified.

Replication thereto, denying the Liability of the Party charged by the Plea to repair.

And hereupon R. S. [the clerk of the peace or other person], who prosecutes for our said Lady the Queen in this behalf, says, that by reason of any thing in the said plea above pleaded in bar alleged, our said Lady the Queen ought not to be precluded from prosecuting the said indictment against the said inhabitants of the said parish of G. H., because he says that the said L. M. ought not to repair or amend the said part of the said highway so alleged to be ruinous, miry, deep, broken, and in decay, as aforesaid, by reason of his said tenure, in manner and form as in and by the said plea is above supposed and alleged, and this he the said R. S. prays may be enquired of by the country. And the said J. S. and J. N. for themselves and the rest of the inhabitants of the parish of G. H. aforesaid do the like.

(d) As to pleading liability to repair a highway ratione clausura of the land wherein it lies on both sides of it, or ratione coarctationis by inclosing with a new hedge on one side, there having always been a hedge on the other, R. v.

Stoughton, 2 Saund. 157; 5 Esp. 219; Reg. v. Mawgan in Meneage (Inh.), as reported 3 N. & P. 502; S. C. 8 Ad. & E. 496; and see Burn's Justice, tit. Highway, Sect. VI. 4; also ante, p. 413, note (6).