Costs how paid.

Indictment may be removed by certiorari.

Fines, &c. for

&c. how to be applied.

the said highway to be out of repair; and the costs of such prosecution shall be directed by the Judge of Assize before whom the said indictment is tried, or by the Justices at such quarter sessions, to be paid out of the rate made and levied in pursuance of this Act in the parish in which such highway shall be situate: Provided nevertheless, That it shall be lawful for the party against whom such indictment shall be so preferred at the quarter sessions as aforesaid to remove such indictment by certiorari or otherwise into His Majesty's Court of King's Bench.

96. And be it further Enacted, That no fine, issue, penalty, not repairing, or forfeiture for not repairing the highway, or not appearing to any indictment for not repairing the same, shall hereafter be returned into the Court of Exchequer or other court, but shall be levied by and paid into the hands of such person residing in or near the parish where the road shall lie, as the Justices or Court imposing such fines, issues, penalties, or forfeitures shall order and direct, to be applied towards the repair and amendment of such highway: and the person so ordered to receive such fine shall and is hereby required to receive, apply, and account for the same according to the direction of such Justices or Court, or in default thereof shall forfeit double the sum received; and if any fine, issue, penalty, or forfeiture to be imposed for not repairing the highway, or not appearing as aforesaid, shall hereafter be levied on any repaid to him. inhabitant of such parish, township, or place, then such inhabitant shall and may make his complaint to the Justices at a special sessions for the highways: and the said Justices are make order for hereby empowered and authorized, by warrant under their hands, to make an order on the surveyor of the parish for payment of the same out of the money receivable by him for the highway rate, and shall within two months next after service of the said order on him pay unto such inhabitant the money therein mentioned.

If fine. &c. levied on inhabitant how to be

Justices to

payment.

Justices em

powered to award costs

97. And be it further Enacted, That if any surveyor or other person shall be summoned before any Justice to answer

where information, &c. is

dismissed.

any information or complaint exhibited or made against him to defendant, touching or concerning any offence committed or alleged to have been committed by such surveyor or other person against withdrawn or the provisions of this Act, or for any supposed neglect of duty, in case such surveyor or other person be convicted thereof, such Justice shall be authorized and empowered to order the payment by such surveyor or other person of all costs or proceedings against him; but in case such information or complaint shall afterwards be withdrawn or quashed or dismissed, or if the defendant shall be acquitted of the offence or neglect of duty charged against him, it shall be lawful for such Justices to order and award that the person exhibiting or making such information or complaint shall pay to the defendant all such costs as to such Justice shall seem reasonable; and in default of immediate payment of the sum so awarded, How it shall be lawful for such Justices to cause the same to be levied by distress and sale of the goods and chattels of the person ordered to pay the same, together with the costs of such distress and sale; and if goods and chattels of such person sufficient to answer the sum so awarded, with such costs as aforesaid, cannot be found, it shall be lawful for such Justices to commit such person to the common gaol or house of correction, there to be kept to hard labour, for any time not exceeding one calendar month, unless the sum so awarded, together with all costs and expences, shall be sooner paid and satisfied.

recoverable.

award costs to

98. And be it further Enacted, That it shall and may be Court may lawful for the court before whom any indictment shall be pre- the prosecutor. ferred for not repairing highways to award costs to the prosecutor, to be paid by the person so indicted, if it shall appear to the said court that the defence made to such indictment was frivolous or vexatious (a).

(a) The application must be made to the Judge who tries the indictment, and if this be omitted the Court of King's Bench will not afterwards interfere. Rex v. Chadderton, 5 Durnf. & East, 272. If it be stated on the back of the record that the defence was frivolous, this will suffice, without proceeding to award costs to the prosecutor. Rex v. Clifton, 6 Durnf. & East, 344. Rex v. St. John, 6 Maule & Sel. 130. In Rex v. Taunton St. Mary,

G

No presentment to be

taken against

99. And be it further Enacted, That from and after the commencement of this Act it shall not be lawful to take or inhabitants for commence any legal proceeding, by presentment, against the highway being out of repair. inhabitants of any parish, or other person, on account of any highway or turnpike road being out of repair.

Inhabitants

and officers in

parish where offences com

mitted may give evidence thereof.

Justices may proceed by

summons in

100. And be it further Enacted, That no person shall be deemed incompetent to give evidence or be disqualified from giving testimony or evidence, in any action, suit, prosecution, or other legal proceedings to be brought or had in any court of law or equity, or before any Justice or Justices of the Peace, under or by virtue of this Act, by reason of being an inhabitant of the parish in which any offence shall be committed, or of being a treasurer, clerk, surveyor, district surveyor, assistant surveyor, collector, or other officer appointed by virtue of this Act, nor shall such testimony or evidence for any of the reasons aforesaid be rejected or liable to be questioned or set aside (a).

101. And be it further Enacted, That in all cases in which any penalty or forfeiture is recoverable before Justices of the the recovery of Peace under this Act, it shall and may be lawful for any penalties. Justice to whom complaint shall be made of any such offence to summon the party complained against before any two Justices, and on such summons the said two Justices may hear and determine the matter of such complaint, and on proof of the offence convict the offender, and adjudge him to pay the penalty or forfeiture incurred, and proceed to recover the same, although no information in writing shall have been exhibited or taken by or before such Justice; and all such proceedings by summons without information shall be as good, valid, and

3 Maule & Sel. 465, it was held that several persons were entitled to costs under the 5th W. & M. c. 11, s. 3, as prosecutors of an indictment removed by certiorari; one as constable of the manor within which the highway lay, the others as parties aggrieved, they having used the way for many years in passing and repassing from their homes to the next market town, and being obliged by reason of the want of repair, to take a more circuitous rout.

(a) This provision is taken from the Turnpike Act, 4 Geo. 4, c. 95, s. 84.

effectual to all intents and purposes as if an information in writing was exhibited (a).

compelling

102. And be it further Enacted, That if any person, after Power of having been paid or tendered a reasonable sum of for money witnesses to his costs, charges, and expences, shall be summoned as a wit- attend. ness to give evidence before any Justices of the Peace touching any matter or fact contained in any information or complaint for any offence against this Act, either on the part of the prosecutor or the person accused, and shall refuse or neglect to appear at the time and place for that purpose appointed, without a reasonable excuse for his refusal or neglect, or appearing shall (after having been paid or tendered a reasonable After paysum for his costs, charges, and expences,) refuse to be ex- expences. amined upon oath and give evidence before such Justice of the Peace, then and in either of such cases such person shall forforfeit for every such offence any sum not exceeding five pounds (b).

ment, &c. of

103. And be it further Enacted, That all penalties and for- Forfeitures, feitures by this Act inflicted or authorized to be imposed for costs, and charges, may any offence against the same, and all balances due from a sur- be levied by distress and veyor, and all costs and charges to be allowed and ordered by sale. the authority of this Act, (the manner of levying, recovering, and applying of which is not hereby otherwise particularly

(a) Taken from 4 Geo. 4. c. 95, s. 83.

(b) Form of summons for any person or persons to attend a Justice or Justices. Sched. No. 20.

To A. B.

WHEREAS Complaint and information hath been made upon oath to wit. before me, C. D., one of His Majesty's Justices of the Peace for the said [county, &c.] by E. F. of that, &c. [here state the nature and circumstances of the case, as far as it shall be necessary to show the offence and to bring it within the authority of the Justice; and, in doing that, follow the words of the Act as near as may be]: These are therefore to require you personally to appear before me [or the Justices to be assembled at their petty sessions (or special sessions for the highways) to be holden at in the said county, &c.] on the next, at the hour of in the

day of

noon, to answer to the said complaint and information made by the said E. F., who is likewise directed to be then and there present to make good the same.

Herein fail not. Given under my hand this

day of

directed,) shall, upon proof and conviction of the offences respectively before any two or more Justices, either by the confession of the party offending, or by the oath of any credible witness or witnesses (which oath such Justices are in every case hereby fully authorized to administer), or upon order made as aforesaid, be levied, together with the costs attending the information, summons, and conviction, by distress and sale of the goods and chattels of the offender or person liable or ordered to pay the same respectively, by warrant under the hands of two or more Justices before whom the party may have been convicted (which warrant such Justices are hereby empowered and required to grant); and the overplus (if any), after such penalties, forfeitures, and fines, and the charges of such distress and sale, are deducted, shall be returned, upon demand, unto the owner or owners of such goods and chatIf fines, &c. tels; and in case such fines, penalties, and forfeitures shall not not paid be forthwith paid upon conviction, then it shall be lawful for Justices may issue warrant such Justices as aforesaid to order the offender or offenders so of distress, &c. convicted to be detained and kept in safe custody until return can be conveniently made to such warrant of distress, unless the offender or offenders shall give sufficient security, to the satisfaction of such Justices as aforesaid, for his or their appearance before such Justices on such day or days as shall be appointed for the return of such warrant of distress, such day not being later than seven days from the time of taking any such security, and which security the said Justices as aforesaid are hereby empowered to take by way of recognizance or On return of otherwise; or in case it shall appear to the satisfaction of nulla bona, such Justices, either by the confession of the offender or offender may be committed. otherwise, that he hath not goods or chattels within the jurisdiction of such Justices sufficient whereon to levy all such penalties and forfeitures, costs and charges, such Justices may at their discretion, without issuing any warrant of distress, commit the offender for such period of time, and in such and like manner, as if a warrant of distress had been issued, and nulla bona returned thereon; but if a warrant of distress shall be issued, and upon the return thereof it shall appear that no sufficient distress can be had, whereupon to levy the said