ten miles thereof, not having some other person on foot to guide the same, MISBEHAVIOUR he shall, on the like conviction, forfeit 10s., in case such driver shall not be OF DRIVERS. the owner of such carriage; and in case he be the owner, then any sum not exceeding 20s., to be recovered, levied, and applied, as by the aforesaid act of the 1 Geo. I. st. 2, c. 57, is directed. And any person, though not a peace officer, may stop and apprehend such offender, and carry him as soon as conveniently may be before a justice; and if any person shall resist, abuse, or prevent any person endeavouring to apprehend such offender, or, when he is apprehended, shall rescue, or endeavour to rescue him, he shall forfeit 20s. in like manner. minster. By stat. 30 Geo. II. c. 22, s. 7, 12, if the driver of any carriage within London or WestLondon or Westminster, or in any public street or common highway within 30 Geo. 2, c. 22. the bills of mortality, shall, by negligence or wilful misbehaviour, interrupt the free passage of his Majesty's subjects, he shall, on conviction, by confes sion or oath of one witness, before one justice, forfeit any sum not exceeding Penalty. Sect. 11. And if he shall refuse to discover his name and place of abode to the justice before whom he shall be brought, he shall be immediately delivered over to a constable or other peace officer, and shall by him be conveyed to the common gaol or house of correction of the place where the offence shall be committed, there to remain until he shall declare his name and place of abode to the said justice, or to some other justice of such place. Sect. 14. Any person shall be admitted to be an evidence, notwithstanding Inhabitants withis being an inhabitant of the place where the offence shall be committed. Sect. 15. Provided, that persons punished by this act shall not be punished by any other law. And see further for preventing nuisances in the metropolis, 57 Geo. III. c. xxix.; and 4 Geo. IV. c. cxiv. ; 7 Geo. IV. c. cxlii.; 10 Geo. IV. c. lix. (9) Other Enjuries and Annoyances at Common Lab. nesses. There is no doubt, but that all injuries whatsoever to any highway, as Nuisances, &c. at by digging a ditch, or making a hedge overthwart it, or laying logs of tim- common law. ber in it, or by doing any other act which will render it less commodious to the king's people, are public nuisances at common law. 1 Hawk. c. 76, s. 48. Ploughing up a common footpath is a public nuisance, and may be indicted accordingly. R. v. Cross, 3 Camp. 226. Carrying an unreasonable weight, with an unusual number of horses, is a nuisance. R. v. Egerley, 3 Salk. 183; Com. Dig. Chemin. (A. 3.). To suffer the ditches adjoining to a highway to be foul, by reason whereof it is impaired, is a nuisance also at common law. 1 Hawk. c. 76, s. 50. And it seemeth clear, that it is a nuisance at common law to suffer the boughs of trees, growing near the highway, to hang over the road in such a manner as thereby to incommode the passage. Ib. and 3 Bac. Abr. 497. And perhaps it is the better opinion, that he who hath trees next adjoining to the highway, and hanging over it to the annoyance of the people, is bound by the common law to lop the same; and it seems clear that any Ploughing up. Unusual weight and horses. Ditches. Boughs of trees. person may justify the lopping such trees, so far as to avoid the nuisance. A gate erected in a highway is a common nuisance, because it interrupts the people in that free and open passage which they before enjoyed, and were lawfully entitled to; but where such a gate has continued time out of mind, it shall be intended that it was set up at first by consent, on a composition with the owner of the land on the laying out the road, in which case the people had never any right to a freer passage than what they still enjoy. See ante, 1 Hawk. c. 75, s. 9, 12; c. 76, s. 50; Com. Dig. (A 3). A gate erected by trustees of a turnpike road, without authority, may be removed by a magistrate, but not by others, see 3 Geo. IV. c. 126, s. 121. See also as to gates opening into a turnpike road, 3 Geo. IV. c. 126, s. 125. There is no similar clause in the Highway Act. Where a waggoner, carrying on a very extensive concern, constantly suffers waggons to stand on the side of the highway on which his premises are situate an unreasonable time, he is guilty of a nuisance. R. v. Russell, 6 East, 427; 2 Smith, 424, S. C. And if stage coaches regularly stand in a public street of London, though for the purpose of accommodating passengers, so as to obstruct the regular track of carriages, the proprietor may be indicted. R. v. Cross, 3 Campb. 224. So a timber merchant occasionally cutting logs of wood in the street, which he could not otherwise convey into his premises, will not be excused by the necessity which, in choosing the situation, he himself created. Id.; 3 Campb. 230. And this, though the public might have a passage through the windings and turnings; 2 Roll. Ab. 137; but, removing them promptly, and not suffering them to remain in the highway an unreasonable time, will excuse him. Id.; 3 Bac. Ab. Highways, (E). It is even said, that "if coaches on the occasion of a rout wait an unreasonable length of time in a public street, and obstruct the transit of his Majesty's subjects, who wish to pass through it in carriages or on foot, the persons who cause and permit such coaches so to wait are guilty of a nuisance." Id.; 3 Campb. 226; and see 1 Russell, 463. Nor is it necessary, in order to fix the responsibility on the defendant, to shew that he immediately obstructed the public way, or even intended to do so; it seems to be sufficient, if the inconvenience result as an immediate consequence of any public exhibition or act; for the erection of a booth to display rope dancing, and other attractive spectacles, near a public street in London, which draws together a large concourse of people, is a nuisance liable to be punished and abated. 1 Ventr. 169; 1 Mod. 76; 2 Keb. 846; Bac. Abr. Nuisance. But distributing hand-bills in a public way has been holden not to be illegal; R. v. Sarman, 1 Burr. 516; and it may be collected, that a mere transitory obstruction, which must necessarily occur, is excusable, if all reasonable promptness be exerted in removing it. So that the erection of a scaffolding to repair a house, the unloading a cart or waggon, and the delivery of any large articles, as casks of liquor, if done with as little delay as possible, are lawful; though, if an unreasonable time were employed in the operation, they would become nuisances. 3 Campb. 231. In repairing or rebuilding a house, care must be taken that the encroachment on the highway be not unreasonable; for, if the owner of a house employ his own servants, or even contract with a builder to rebuild or repair his house, and the latter erect a shed so far out into the street as to encroach unreasonably on the highway, the owner would be guilty of a nuisance. 1 B. & P. 407. But building a house higher than it was before, whereby the street becomes darker, is not a public nuisance because of the darkening only. R. v. Webb, 1 Ld. Raym. 737. In a very recent case, the doctrine of encroachments on navigable rivers has been much canvassed. It was determined "that though an erection from pleasure, whim, or caprice, which interferes in the least degree with a public right of passage, is a nuisance; yet, if it be erected for, and continually applied to the purposes of trade and commerce, to an extent beneficial to the interest of the country generally, it is a justifiable erection, and not a nuisance. In this case, staiths had been protruded into the Tyne, without which coals could not, but with which they could, at all times of the tide be shipped, whereby the public had a better and cheaper supply, but certain vessels were by it prevented from passing at low water, and it was held that a jury were justified in finding this to be no nuisance. R. v. Russell, 6 B. & C. 566; 9 D. & R. S. C. Ld. Tenterden, C. J., diss. See this case ably commented on by Mr. Wellbeloved, in his work on Highways, p. 449. See also R. v. Ld. Grosvenor, 2 Stark. C. N. P. 511. To divert a part of a public river, whereby the current of it is weakened, and rendered incapable of carrying vessels of the same burthen as it could before, is a common nuisance. 1 Hawk. c. 75, s. 11. But if a ship or other vessel sink by accident in a river, although it obstruct the navigation, yet the owner is not indictable as for a nuisance, for not removing it. R. v. Watts, 2 Esp. 675. It seems to have been holden by Ld. Kenyon, that the existence of a nuisance for a great number of years might render it legal; Peake, N. P. 91; but the contrary now appears to be settled. 7 East, 199; 3 Camp. 227. If the party who has been indicted for a nuisance continue the same, he may be again indicted for such continuance. 1 Hawk. c. 76, s. 157; 2 Roll. Abr. 137, (B 4); sed vide Austin's case, 1 Ventr. 183. XIV. Remedies for Nuisances to Highways by not repairing. AT COMMON LAW. Time of continuance of nuisance. THE remedies for the not repairing highways may be effected either, Remedies for not 1. By Indictment; 2. By Presentment; 3. By Information in the King's repairing highBench; 4. By mandamus, &c. Or, 5. By Proceedings under the High way Act. (1) By Indictment. And herein, as to when an Indictment lies, the Form of it, the Plea thereto, the Evidence and Witnesses, View, Certiorari, Punishment and Judgment, New Trial, and Costs. ways. Every public nuisance is indictable at common law, see post, tit. By indictment. Nuisance, Vol. III.; therefore, an indictment lies against the parish or party liable for the repair of a highway, for not repairing it, whereby it becomes a nuisance and annoyance to the public. This is the most usual and most constitutional mode of proceeding. An indictment does not lie merely for not cleaning a highway. Ante, 11. Form of Indictment against a Parish]-The indictment must shew that the road in question is a highway; that it is situate within the parish; and that it is out of repair. As to the description of the highway, though it has been usual to state that "from time whereof the memory of man is not to the contrary," or "from time immemorial, there was and yet is, a certain common and ancient king's highway," this averment is unnecessary, and the term "highway" will suffice. Aspinall v. Brown, 3 T. R. 265; 2 Saund. 158, n. (4); 1 Vent. 208. An indictment for a nuisance to a horseway, without saying it is a highway, is bad. 1 Hawk. c. 76, s. 89. An averment that the locus was a common and public highway for, &c. to pass along at pleasure, paying a certain toll, is not inconsistent or contradictory, particularly if not said to be immemorial; for it may be a highway created by act of Parliament. 8 Price, 535. It is not requisite to state whether the highway is for the use of carriages, horses, or foot passengers, but that if be laid to be a common highway, the rest will be intended. Rep. Temp. Hardw. 315, 316; 2 Saund. 158, n. (8). Form of indictment against pa rish. Statement of high way. INDICTMENT. Statement of highway being in parish. Statement of bad repair. Form of indictment against an individual and others. But as so general a description would be improper, if the road be not an highway for all purposes, it is certainly prudent to insert the more particular description. 8 East, 4. In a late case it was held, that, stating the highway to be for all subjects, with their horses, coaches, carts, and carriages, was supported in evidence, though it was proved that carts only of a particular description, and loaded in a particular manner, could pass along the way. But had it been stated to have been for all carts, it would have been a variance. R. v. Lyon, 1 R. & M. 151. If the highway be public only at particular times, the same must be described accordingly. 4 Camp. 189. It is not necessary to state the termini of the highway, for highways have no boundaries but the sea. 2 Sess. Cas. 219; Rouse v. Bardin, 1 Hen. Bla. 351; 2 Stark. C. N. P. 693, n.; 2 Saund. 158, n. (6). If the termini be stated, they must be proved, and care must be taken that the description is so framed as neither to exclude the parish liable, nor to seem repugnant to itself; for if the highway be described as between two places, both of them are necessarily excluded. 2 Saund. 158, n. (6). The words from and unto seem to have both of them an exclusive as well as inclusive meaning. See R. v. Knight, 7 B. & C. 413; 1 M. & R. M. C. 48, S. C.; 2 Roll. Abr. 81; 1 Leach, 528; 1 Burr. 376. In R. v. Knight, it was alleged, that certain rubbish was laid on a culvert in the parish of Studley, in a highway leading from Studley to, &c. This was held a sufficient allegation that the highway was in the parish of Studley; and Lord Tenterden added, that, at present, he was not satisfied with R. v. Gamlingay, 3 T. R. 513; and Bayley, J., said, from Studley, imports, primâ facie, from a vill in that parish. Ib. Where the indictment described the highway as leading from D. to C., and from C. to R. The proof was, a person going from D. to R. turned off before he got to C. This was held a variance, for the indictment imported that the road communicated directly from D. to R. through C. 6 Esp. 136. After plea of general issue, it cannot be objected, that the description is uncertain, and that it applies to more than one highway in the parish. It should be pleaded in abatement. R. v. Hammersmith, 1 Stark. 357. It must be expressly shewn that the highway lies within the parish indicted, if not, judgment against the parish would be reversed. See R. v. Hertford, Cowp. 111; R. v. Machynlleth, 2 B. & C. 166; 3 D. & R. 388, S. C. When the highway lies in two parishes, an indictment against one of them for not repairing one side of the road must state that each parish was liable to repair ad medium filum viæ, and not merely that a certain part of the way, of a particular breadth, was out of repair, and that the parties indicted were bound to amend it. Peake's Rep. 219; 6 Wentw. 409. The indictment must expressly shew that the way is out of repair; and an allegation, that it is narrow and muddy, will not suffice. 2 Ld. Raym. 1169; see Andr. 234. It has been considered necessary to state the extent of the defective repair, by shewing how many feet in length and in breadth of the highway are out of repair. Cro. Jac. 324; 2 Roll. Abr. 80, 81; Rep. T. Hardw. 105, 316; 1 Hawk. c. 76, s. 88, acc.: Say. 167, 301, 98, cont. But as the reason assigned for its insertion is, that the Court may be able to judge with certainty of the fine which they ought to impose, and as they do not at present estimate the sentence from the formal statement on the record, it seems to be the better opinion that it might be omitted; 2 Saund. 158, n. (7); though it is as well to introduce it, and the allegation need not be proved precisely as alleged. Form of Indictment against an Individual, or a Township or Class of Persons, not of Common Right bound to repair]-In such indictment, besides the describing the highway as above pointed out, the mode in which the defendant became liable must be stated. 5 Burr. 2700; 2 Saund. 158, n. (9). A subdivision of a parish can only be liable by custom, prescription, or legislative provision; and an indictment against the inhabitants of it must shew specially the liability of the inhabitants to repair, and that they have repaired. 5 Burr. 2700; 2 T. R. 513; 5 M. & S. 260. As to the mode of stating the liability of an extraparochial hamlet, see 2 B. & C. 193; 2 D. & R. 388, S. C.; ante, 11. It seems sufficient to state the liability of an individual ratione tenuræ terra, without adding suæ, because the Court will intend the tenure to be such as will make the defendant chargeable. 2 Saund. 158, n. (9); 1 Ventr. 331; 1 Stra. 187. But the terms ratione tenure should be adhered to, and no others substituted in their room: stating the liability to be by reason of ownership and proprietorship has been held insufficient to excuse the omission. R. v. Kerrison, 1 M. & S. 435; 3 M. & S. 526; Styles, 400; 2 Saund. 158, 5th ed. If an individual be bound to amend a road by reason of holding certain estates in fee-simple, it is sufficient to aver, that he is liable by reason of the tenure of his lands, without adding, " 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;" for the prescription is necessarily implied in the estate of inheritance which he possesses. Co. Ent. 358; 1 Hawk. c. 76, 8. 8. But where the duty arises from inhabitancy alone, it is necessary to state the usage. Keilw. 52; 2 Saund. 158, n. (9). INDICTMENT. Plea to Indictment]-On an indictment against a parish, for the non-re- Plea to indictment pair of a highway, under the plea of the general issue, not guilty, the parish against a parish. may shew that it is in repair, or that it is not a highway, or that it does not lie within the parish, or that it is misdescribed; but they cannot shew, under such plea, that other particular persons are liable; and, in order to let them in to do this, they must plead specially, shewing how such persons are liable. See R. v. Norwich, 1 Stra. 181; R. v. St. Andrew's, 1 Mod. 112; 1 Ventr. 256; 1 Hawk. c. 76, s. 9. This rule, however, requiring a special plea, does not apply where the duty is transferred by a public act of Parliament, of which all are supposed to take cognizance. R. v. St. George's, 3 Campb. 222. When it is known that roads are repairable separately by different districts, it is a fraud in those who undertake, on behalf of the district liable, the defence of an indictment against the parish, not to put in a special plea to that effect, although the parish may have notice of the existence of the indictment. Per Lord Ellenborough, C. J., in R. v. Justices of Lancashire, 12 East, 369. Where the defendants are charged as bound to repair from custom, pre- Against indiviscription, or tenure, they may, under the general issue, negative the duty duals. thus alleged, and throw the burthen on the parish, or even on a particular individual or district. Comb. 396; 1 Stra. 181-183; 2 Saund. 159 b, n. (10). And the reason of this distinction is, that the prosecutor must, in order to support his charge, prove the defendants to be thus chargeable; and therefore they are at liberty to disprove it by opposite evidence. 2 Saund. 158, #. (10). When different subdivisions of a parish have immemorially repaired the highways within their respective limits, and the parish at large is indicted, this prescription must be pleaded, because if, on verdict of guilty or default, judgment be given against the parish, the judgment may afterwards be given as evidence of the liability of the whole parish to repair. R. v. St. Paneras, Peake's N. P. 219. Where a special plea is unnecessary, and the whole defence might be In general. given in evidence under the general issue, if the defendant will unnecessarily plead specially that he is not bound to amend, he must go further, and state in whom the duty exists. R. v. Yarton, 1 Sid. 140. And it will be necessary to traverse the obligation which the indictment alleges. 2 Saund. 159, n. (10). But where a parish is indicted for not repairing a highway which they are bound of common right to preserve, they ought not to traverse their own obligation to repair, but merely shew the liability to be thrown on others; for it is in this case a traverse of a matter of law, and as such, though often inserted, is demurrable, and should always be omitted. 1 Saund. 23, n. (5); 2 Saund. 159, n. (10); sed vide 1 B. & A. 348. If the inhabitants of a parish plead that several included townships are VOL. III. G |