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Inhabitant of a parish
Highways. oath of one or more credible witness or witnesses, or upon the view of a justice of peace, in the cases before mentioned; and that any inhabitant of any parish, township, or place, in which any offence shall be committed contrary to this act, shall be deemed a competent witness, notwithstanding his or her being an inhabitant of such parish, township, or place.
a good wit
LXXXI. [Proceedings not to be quashed for want of form, nor removable by certiorari.]
LXXXII. [Limitation of action, three months-general issue-treble costs.]
THE SCHEDULE (STATING THE FORMS) TO WHICH THIS ACT
Notice from the Surveyor to remove Nuisances and Obstructions, and to cut Hedges, &c.
To C. D. of
In pursuance of the directions given by the act passed in the thirteenth year of the reign of his Majesty King George the Third, “For the and obstruc- Amendment and Preservation of the Highways," I, A. B., Surveyor
To cut and
prune hedges, and to
cut or prune trees, and
to open and scour ditches and wa
of the Highways for the (parish, etc.) of
do hereby give you notice, forthwith to remove the (dung, timber, stone, etc.) placed by you in a certain part of the king's highway, lying between
in the (parish, etc.) of
obstruction and annoyance of the said highway: or (forthwith to cut,
in or near the highway, lying between
to the intent that the water may be
When it is only to be widened, leave out
the words in Italic, and insert,
'But may be conve
Order of two Justices for [widening] or [diverting and turning]
two of his
Majesty's Justices of the Peace for the said county, acting within the
county, having, upon view, found that a certain part of the highway
(parish, etc.) of
in the in the yards, or
said (hundred), for the length of
where the said old highway lies, Highways. do forthwith proceed to treat and make agreement with the said
the recompense to be made for the said ground, and for the making niently ensuch ditches and fences as shall be necessary, in such manner, with such larged and approbation, and by pursuing such measures and directions in all re- widened, by spects, as are warranted and prescribed by the statute, made in the adding thirteenth year of the reign of his Majesty King George the Third, "For thereto the Amendment and Preservation of the Highways" And in case such from,' or 'widened agreement shall be made as aforesaid, we do order an equal assessment, not exceeding the rate of sixpence in the pound, to be made, levied, and and encollected upon all and every the occupiers of lands, tenements, woods, larged.' tithes, and hereditaments, in the said (parish, etc.) of
and that the money arising thereupon be paid
and applied in making such recompense and satisfaction as aforesaid, pursuant to the directions of the said act.
Presentment by a Justice of Peace.
Middlesex.-At the General Quarter Sessions of the Peace of our Lord the King, held for the said county, at in the said county, on (Tuesday) the day of
the reign of
Esquires, and others their companions, Justices of our said Lord the King, assigned to keep the peace in the said county, and also to hear and determine divers felonies, trespasses, and other misdemeanors in the said county committed; A. B. Esquire, one of the Justices of our said Lord the King, assigned for the purposes aforesaid, by virtue of an act made in the thirteenth year of the reign of his Majesty King George the Third, " For the Amendment and Preservation of the Highways," (upon his own view,) or, upon information This to be upon oath, to him given by C. D., surveyor of the highways for the inserted (parish, etc.) of in the said county, doth present, when it is that from the time whereof the memory of man is not to the contrary, upon the there was, and yet is, a certain common and ancient king's highway, information leading from the town of in the said of the sur
(county, etc.) towards and unto
within the same (county,) used for all the King's subjects, with their horses, coaches, carts, and carriages, to go, return, and pass, at their will; and that a certain part of the same king's common highway, commonly called
being in the (parish, etc.) of (county,) containing in length
feet, on the
situate, lying, and
year of the and continually afterwards,
until the present day, was, and yet is, very ruinous, deep, broken, and in great decay, for want of due reparation and amendment, so that the subjects of the king, through the same way, with their horses, coaches, carts, and carriages, could not, during the time aforesaid, nor yet can, go, return, or pass, as they ought and were wont to do, to the great damage and common nuisance of all the king's subjects through the same highway going, returning or passing, and against the peace of our said Lord the King; and that the inhabitants of the (parish, etc.) of aforesaid, in the (county) aforesaid, the said common highway (so in decay) ought to repair and amend, when and so often as it shall be necessary.
In testimony whereof, the said A. B. to these presents hath set his
hand and seal, this
in the year aforesaid.
and that it is situated in the parish. It is not necessary to state, that
Note.-A presentment under this statute, charging part of a parish only with the repairs of a road," from time whereof, &c, or from which is against common right, must shew expressly how the inhabitants of that part are liable. The form of the presentment in the schedule applies only to whole parishes: R. v. Penderryn, 2 T. R. 510. It must be observed, also, that the clause giving the magistrates authority to present (see section 24), is confined, in the terms of it, to offences committed contrary to the provision and intent of the act; and, therefore, whatever the offence may be, it is only presentable by a magistrate as an offence against the act. Therefore, as the form of presentment in the schedule is confined to cases of mere repair, a present ment for a nuisance by obstruction, must allege the offence to be done against the form of the statute: R v. Winter, 13 East, 257. For precedents of indictments for nuisances by obstruction, see Cro. Circ. Comp. 303, et seq. It has been held, that an indictment for laying soil in the highway, need not set out the length and breadth of the nuisance: Sayer, 98. If a way has been generally used by all ordinary carriages, that is sufficient to constitute it a highway; and, therefore, in an indictment for obstructing a way so circumstanced, it may be laid as a common highway for carts, carriages, &c. although it has always been arched over, and the archway be not suf. ficiently high to permit road waggons and other carriages of unusual dimensions, to pass under it. R. v. Lynn, 1 C. & P. 527. In every indictment against a parish for not repairing a highway, there
time immemorial," there was and is a common and ancient king's highway; it is sufficient to state, in a compendious manner, that it is a highway: Aspinal v. Brown, 3 T. R. 265. But the indictment must show, that the way is common to all the king's people; and, therefore, if it only charge a nuisance to a horseway, without adding that it is a highway, it is had : Cro. Eliz. 63. Though it is usual, it is said not to be necessary, to state the termini of the highway, 1 Russ. 329, R. v. Stoughton, 2 Saund. 158, b. note 7; but, if stated, they must be proved. Generally, every material variance from the description of the road will be fatal: thus, an averment that the highway leads from A to C., is not satisfied by evidence of a road leading from A. to B., and communicating with C. by means of a cross-road: R. v. Great Canfield, 6 Esp. 136. And where the highway is described as leading between A. and B., or from A. unto B., both those parishes are necessarily excluded; and an indietment will be bad if it fail to state, that the highway is in the parish indicted, although the part out of repair be expressly stated to be in the parish indicted, and be represented as part of the road before described: R. v. Gamlingay, 3 T. R. 513 In a late case, however, Lord Tenterden is reported to have said, that to and from have frequently an inclusive meaning, and that he was by no means satisfied with the general rule laid down in R. v. Gamlingay, that they ought to be construed exclusively: R. v. Knight, 1 Man. & R. 219. It is said to be necessary to allege, in the presentment or indictment, to what part of the highway the nui
sance complained of extends, as by shewing how many feet in length, and how many in breadth, it contains: 1 Haw. P. C. c. 32. s. 6. But this allegation seems not now to be necessary: 2 Saund. 158, note 7. And it has been held that an indictment for a nuisance, stating that a certain highway and bridge are in a ruinous condition, is not bad, for not setting out the length and breadth of the nuisance: Sayer, 301. If a parish be situate part in one county and the rest in another, and a highway lying in one part be out of repair, an indictment against the inhabitants of that part only will be bad; it must be against the whole parish: R. v. Clifton, 5. T. R. 498. But it will be otherwise if that part of the parish be bound by prescription to repair it. Where the obligation to repair arises from prescription, the obligation, being against common right, must be set forth in the indictment. It is, therefore, not sufficient to allege, that the inhabitants of a particular district, from time immemorial, ought to repair and amend; it must be averred, that the inhabitants from time whereof, &c. have been used and accustomed, &c. 1 Saund. 758, note 9. And, upon the same principle, an indictment for non-repair of a highway within a certain limit, charging a corporation with a prescriptive liability to repair all common highways, &c. within such limits, excepting such as ought to be repaired according to the form of the several statutes in such case made," has been held bad, for want of shewing that the highway in question was not within any of the exceptions: R. v. Mayor of Liverpool, 3 East, 86. When the indictment is against a particular person, charging him with the repair of a highway, in respect of certain lands, it seems that the oc
cupier, and not the owner, is the proper person against whom the indictment should be brought; for the public have no means of knowing who is the owner: 1 Russ. 331; 1 Haw. P. C. c. 32, s. 5. The venue, in such case, must be laid in the county where the nuisance is, though the person bound to repair should live in another: R. v. Clifton, 5 T. R. 102. The indictment also must shew the obligation of the individual to repair. In many precedents of indictments or presentments against persons for not repairing a highway, by reason of tenure, it is stated that the party ought to repair by reason of his tenure, "as he and all those who held the said lands for the time being, from time whereof the memory of man is not to the contrary, were used to do;" but it does not appear to be necessary to insert these words; for the obligation upon him to repair seems to be sufficiently shewn, by averring that he ought to do so by reason of the tenure of his lands, without adding that those who have held the lands for the time being, have immemorially repaired: 1 Saund. 185, note 9; Co. Entr. 358. This observation, however, only applies where the occupier is seized in fee of the lands in question, because the expression ratione tenure is equiva lent to charging the individual in a que estate: see 1 Haw P. C. c. 32. s. 8; Keilw. 52; R. v. Kerrison, 1 M. & S. 437. The words in question, therefore, cannot be dispensed with when the indictment is brought against a tenant for years: Wentw. Pl. vol. vi. p. 415.
If the description of a highway, in an indictment for non-repair, be too indefinite, being equally applicable to several highways, advantage should be taken by plea in abatement; the description, if true in fact, cannot be objected to at the
trial under the general issue: R. v. Hammersmith, 1 Stack. 357. Where an indictment or presentment is against the inhabitants of a parish at large, they may upon the general issue, not guilty, shew that the highway is in repair, or that it is not a highway, or that it does not lie within the parish. But they cannot, upon the general issue, throw the burden of repairing on particular persons, by prescription, or otherwise, but must set forth their discharge in a special plea: 1 Russ. 331. See an exception to the rule: 3 Camp. 222. But where a particular division of a parish is charged with the repair by prescription, or a particular person by reason of tenure, or the like, they may throw the burden either upon the parish or even an individual, under the general issue. If, however, though unnecessarily, they plead the special matter, it is not enough for them to say they ought not to repair, but they must shew who ought: 2 Saund. 153, note 11. A plea which alleges a prescriptive liability in another parish, must shew the consideration of such prescription: R. v. St. Giles, Cambridge, 5 M. & S. 260. But where it throws such liability upon a particular district within the parish, it need not state any consideration, for the consideration appears on the face of it: R. v. Ecclesfield, 1 B. & A. 348; 1 Stark. 393; and see R. v. W. R. Yorkshire; 4 B. & A. 623. Where any subdivision of a parish is liable to the repair of a highway, and the indictment is notwithstanding preferred against the whole parish, care should be taken to plead the liability of such subdivision; for if judgment be given against the parish, whether after verdict upon not guilty, or by default, the judgment will be conclusive evidence of the
liability of the whole parish to repair, unless fraud, or want of notice, of the indictment to the other subdivisions, can be shewn: 2 Saund. 159, note 10. And where a parish consists of several townships, a plea that each township has immemorially maintained its own roads, must shew how much of the road indicted lies in one township, and how much in another: R. v. Bridekirk, 11 East, 304. And see R. v. Taunton, 3 M. & S. 465.
The former part of this act, beginning with the 6th section, relates to nuisances to the highway by obstructions; the 16th section gives power to the justices to order narrow roads to be widened or turned; and the latter part, beginning with the 23rd section, relates to nuisances from non-repair As to what shall be deemed a highway, see 1 Russ. 307, et seq.; but it may be laid down generally, that the number of persons who may be entitled to use the way, or may be obliged to repair it, will not make it a public way, if it be not common to all the king's subjects. But see R. v. Lynn, above cited. A river common to all men is a highway: Haw. P. C. c. 32, s. 1. But though, if a highway be foundrous and out of repair, the public have a right to go on the adjoining land; yet, if a river should happen to be choked up with mud, that would not give the public a right to cut another passage through the adjoining lands: Per Buller, J., 3 T. R. 268. All injuries whatsoever to a highway, as by digging a ditch, or making a hedge across it, or laying logs of timber in it, or by doing any other act which will render it less commodious to the king's subjects, are public nui. sances at common law: 1 Russ. 317. Therefore to erect a gate across a highway, though it be not locked; or to put a woodstack in