INDICTMENT. Replication. Staying proceedings. Evidence. Witnesses. Inhabitants not incompetent witnesses in certain cases, on behalf of &c. bound by prescription to repair the highways within them, and that part of the highway in question is within one of those townships, and the residue within the other, the plea must specify how much lies within one, and how much lies within the other. R. v. Bridekirk, 11 East, 304. Replication, &c.]-If the special plea of the parish improperly conclude with a traverse, the replication ought not to take issue upon it, but on the liability of the parties to whom the duty is endeavoured to be transferred. 2 Lev. 112; 1 Saund. 23, n. (5). Staying Proceedings]-The proceedings may, at any time, be stayed on affidavit, and the certificate of two justices that the road in question is now in a good state of repair, and is likely so to continue. 3 Smith, 575; 1 Bia. Rep. 602, 295. But in R. v. Lincombe, 2 Chit. Rep. 214, it was decided, that the defendant cannot quash the indictment on an affidavit that the way is in repair, but that he ought to plead guilty, and pay a fine. The affidavits must expressly state the probable continuance of the repair; 3 Smith, 575; and the prosecutor's costs must be paid up to the time when the defendant makes his submission. 1 Bla. Rep. 602; 3 Chit. C. L. 574. Evidence]-On an indictment against a parish, it must be shewn that the highway is a public one, as also its situation, and the want of repair, as stated in the indictment. If the parish, by special plea, throw the burthen of repair on some other persons, then they must support that plea by evidence of the facts stated therein as to the liability. The evidence, pro et con., for these purposes will be found collected under the points noticed in the preceding sections; and as to what is a highway, and who are liable to repair it, ante, 5. An acquittal upon a former indictment, for not repairing a highway, is not conclusive evidence, even if it be any evidence, to discharge the defendant; it concludes nothing as to the general liability, but only shews that the defendant was not liable at the particular time laid in the former indictment; but a conviction in such case is conclusive as to the liability, unless fraud can be shewn. See R. v. St. Pancras, Peake's C. N. P. 219; and 1 B. & 4. 63. As against the parish at large, the judgment is not conclusive, if the defence was conducted by the inhabitants of a particular district, in which the indicted road lay, without any notice to the rest of the parish. R. v. Townsend, Dougl. 421; 2 Saund. 159, n.; R. v. Eardisland, 2 Campb. 494. Upon an indictment for the non-repair of a road ratione tenure, it was held, that an award made under a submission by a former tenant of the premises could neither be received as an adjudication, the tenant having no authority to bind the rights of his landlord, nor as evidence of reputation, having been made post litem motam. R. v. Cotton, 3 Campb. 444. The surveyor of the parish is a competent witness for the prosecution, as also for the defendants. 13 Geo. III. c. 78, s. 69, post, 77. An inhabitant of the parish (even the prosecutor himself, R. v. Hammersmith, 1 Stark. 357), is a competent witness for the prosecution. 13 Geo. III. c. 78, s. 76, post, 77, and see R. v. Hayman, M. & M.401. And it should seem, from the latter case, and the statute 54 Geo. III. c. 170, s. 9 (a), that he (a) The following is the enactment of the 54 Geo. III. c. 170,s.9" And be it further enacted, that no inhabitant or or against parishes, person rated, or liable to be rated to any rates or cesses of any district, parish, township, or hamlet, or wholly or in part maintained or supported thereby, or exe. cuting or holding any office thereof or therein, shall, before any court or person or persons whatsoever, be deemed and taken to be by reason thereof an incompetent witness for or against such dis trict, parish, township, or hamlet, in any matter relating to such rates or cesses, or to the boundary between such district, parish, township, or hamlet, and any adjoining district, parish, township, or hamlet, or to any order of removal to or from such district, parish, township, or hamlet, or the settlement of any pauper in such district, parish, township, or hamlet, or touching any bastards chargeable, or likely to become chargeable, to such district, parish, township, or hamlet, or would be a good witness for the defendants. In the case of R. v. Wandsworth, 1 B. & A. 66, semb. contra, the question of competency arose only incidentally, and the point was not discussed. The case of R. v. Shoreditch, Mar. 26, 27, was decided before the passing of the 54 Geo. III. c. 170. A witness is competent to prove a road to be an highway, though he has agreed to grant, at an annual rent, a way across his own land, which cannot be used unless the disputed road be established. Peake's Ca. 18. Upon an indictment against a township, charging the inhabitants with the liability to repair all roads within the township, an inhabitant of the adjoining township of N. is competent to prove that the road which extended through N. was a public highway. R. v. Pilling, Stark. on Evid. Appendix to p. 673. INDICTMENT. View]-It may sometimes be desirable on the part either of the prosecu- View. tor or defendant, that the jury should have a view of the place indicted. This cannot, it seems, be granted by the judges at the assizes; 1 Sess. Cas. 180; 2 Barnard. 214; 3 Chit. C. L. 574; but may be obtained by removing the proceedings into the King's Bench by certiorari, which will, on proper affidavits, be granted. See 3 Chit. C. L. 574; post, 80. Certiorari]-As to the removal of the indictment by certiorari, see Certiorari. post, 80. Judgment and Punishment]—The judgment and punishment usually are, Judgment and that the defendants pay a fine, and repair the highway. Bro. Abr. Nuisance, punishment. 49; 8 T. R. 142-3; 1 Hawk. c. 75, s. 15. If a justice of the peace grant a certificate that the road is in good condition, the Court will merely assess a small fine, as 6s. 8d., or 13s. 4d., 13 East, 164; 3 Smith, 575; 6 T. R. 635. And so if the certificate state that the way has since been diverted by the order of two justices, and that so much of the old way as is retained is in repair. 13 East, 166-7 (a). Where an individual indicted for not repairing, when bound to do so ratione tenure, applies to the Court to submit to a small fine, on a certificate that the road is put in good repair, which is refused, and afterwards, on the trial, it appears that the repair has been actually effected between the former request and the trial, the Court will refuse to set a nominal fine, unless the costs of the prosecutor are paid subsequent to the former application. 5 T. R. 272; R. v. Wingfield, 1 Black. R. 602. In Reg. v. Cluworth, 6 Mod. 163; Salk. 358, pl. 6; 1 Hawk. Curw. ed. 706, the defendants were indicted for not repairing a common footway, and confessed it, and submitted to a fine; et per Curiam-" The matter is not at an end by the defendants being fined, but writs of distringas shall be awarded in infinitum, till we are certified the way is repaired. But if the party indicted neglect to put the way into proper repair, after having been once fined, no second fine can be imposed on him upon the same proceeding, but a fresh indictment must be brought. R. v. Machynlleth, 4a B. & A. 469; R. v. Old Malton, Id. n. As to the application and levying of the fine, &c., see post, 77-8. the recovery of any sum or sums for the charges or maintenance of such bastards, or the election or appointment of any officer or officers, or the allowance of the accounts of any officer or officers of any such district, parish, township, or hamlet; any law, &c., notwithstanding." See this provision, and the decisions thereon more fully collected, ante, Evidence, Vol. IL (a) When an indictment or presentment is preferred, and the way is out of repair, it is the practice to convene a parish meeting, and authorize an inha- Application and levy of fine. INDICTMENT. New trial. Costs. now abolished. By presentment in New Trial]-The Courts cannot, it seems, grant a new trial, see R. v. Burbon, 5 M. & S. 392. But, for the furtherance of justice, judgment upon a verdict of guilty has been postponed, till another cause, involving the same question, has been tried. R. v. Oxford, 16 East, 223; R. v. Wandsworth, 1 B. & A. 63. If a point of law arises on the trial, leave is frequently given to move to enter a verdict of acquittal. R. v. Gash, 1 Stark. 445; see also Lord Kenyon's observation, R. v. Mawbey, 6 T. R. 619. Costs]-The 13 Geo. III. c. 78, s. 6, enacts "That it shall and may be lawful for the court, before whom any indictment or presentment shall be tried for not repairing highways, to award costs to the prosecutor, to be paid by the person or persons so indicted or presented, if it shall appear to the said court that the defence made to such indictment or presentment was frivolous, or to award costs to the person indicted or presented, to be paid by the prosecutor, if it shall appear to the said court that such prosecution was vexatious." The application must be made to the judge who tries the indictment; and if this be omitted, the King's Bench will not afterwards interfere. R. v. Chadderton, 5 T. R. 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. R. v. Clifton, 6 T. R. 344; R. v. St. John, 6 M. & S. 130. It has been held, that it is a matter to be determined by inquiry, whether a person is or is not the prosecutor within this section of the statute; and that a court of quarter sessions, before whom a parish is acquitted upon the trial of an indictment for not repairing a highway, may, by their order, award C. and E. to pay costs to the parish, although the names of C. and E. be not on the back of the indictment, and although the indictment originated in a presentment of A. and B. constables, whose names are on the indictment; and it was also held to be enough if the order is intitled as in the prosecution of C. and E. without shewing further that C. and E. are prosecutors; and that it need not appear on the face of the order that the indictment was tried, if that appear by the record of the proceedings; and also that the order is good in form, if it be for the payment of the costs to the solicitor of the parish. R. v. Commerell and Ellis, 4 M. & S. 203. In the case of R. v. Kettleworth, 5 T. R. 33, it was determined, that where a justice of the peace indicts a road for being out of repair, (the indictment being afterwards removed by certiorari), he is entitled to costs under stat. 5 & 6 W. & M. c. 11, s. 3, if the defendant be convicted. And, according to R. v. Penderryn, 2 T. R. 260, where a magistrate makes a presentment of a road, as being out of repair, and another person, by the magistrate's consent and approbation, sues out a certiorari, the certiorari is well sued out, though the Court will look to the magistrate as the person responsible. He is answerable for all the costs, if the presentment should turn out to be improper. Several persons were held entitled to costs under the 5 W. & M. c. 11, 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 re-passing from their homes to the next market town, and being obliged, by reason of the want of repair, to take a more circuitous rout. R. v. Taunton St. Mary, 3 M. & S. 465. And see further as to Costs, post, 83; and title Costs, Vol. I. As to the expenses of inhabitants for prosecuting or defending an indictment for the non-repair of a highway, as agreed on at a meeting, see the 65th sect. of 13 Geo. III. c. 78, ante, 48. (2) By Presentment. The non-reparation of highways may, at common law, be presented in the leet or at the sessions. Justices may pre Besides this, by stat. 13 Geo. III. c. 78, s. 24, it is enacted, "That every PRESENTMent. justice of assize, justices of the counties palatine of Chester (a), Lancaster, and Durham, and of the great sessions in Wales (a), shall have authority by this sent on their own statute, upon his or their own view, and every justice of the peace, either view. upon his own view, or upon information upon oath to him given by any surveyor of the highways, to make presentment (b) at their respective assizes, or great sessions, or in the open general quarter sessions of such respective limit of any highway, causeway, or bridge, not well and sufficiently repaired and amended, or of any other default or offence committed and done contrary to the provision and intent of this statute; "And that all defects in the repair thereof shall be presented in such jurisdiction where the same do lie, and not elsewhere; "And that no such presentment, nor any indictment for any such default Certiorari. or defence, shall be removed by certiorari, or otherwise, out of such jurisdiction, till such indictment or presentment be traversed, and judgment thereupon given, except where the duty or obligation of repairing the said highways, causeways, or bridges, may come in question; "And that every such presentment made by any such justice of assize, counties palatine, great sessions, or of the peace, upon his own view, or upon such information having been given to such justice of the peace, upon the oath of such surveyor of the highways as aforesaid, shall be as good and of the same force, strength, and effect in the law, as if the same had been presented and found by the oaths of twelve men; Presentment to be as good as present ment by a jury. "And that for every such default or offence so presented as aforesaid, Fines. the justices of assize, counties palatine, and great sessions (a), at their respective courts, and the justices of the peace, at their general quarter sessions, shall have authority to assess such fines as to them shall be thought meet; "Saving to every person and persons that shall be affected by any such Right to traverse. presentment, his, her, or their lawful traverse to the same presentment, as well with respect to the fact of non-repair, as to the duty or obligation of repairing the said highways, as they might have had upon any indictment of the same, presented and found by a grand jury; prosecution to be "And the justices of the peace, at their general quarter sessions, or the Sessions may order major part of them, may, if they see just cause, direct the prosecutions upon carried on at genesuch presentments as shall be made at the quarter sessions as aforesaid, toral expense. be carried on at the general expense of such limit, and to be paid out of the general rates within the same.' In Keen v. Wightwick, cited in 1 Chit. Col. Stat. 448, it was held, Decisions thereon. that a magistrate is only justified in presenting, on his own view, such highways as are really out of repair; and, if he certify falsely and maliciously, he is liable to an action. See 6 T. R. 443. A constable is not authorized by the above clause to make a presentment; therefore, where he presents persons for a nuisance in the highway, he must go before the grand jury and give his evidence upon oath. R. v. Bridgewater Company, 7 B. & C. 514. In a late case, where a magistrate presented a road in the township of F. upon the information upon oath of A. B., surveyor of the highways for the township of C., which is thirty-five miles distant from the township of F. &c.; the Court held, in arrest of judgment, that this presentment was bad, as it did not appear that the information upon oath was given to the presenting magistrate; and also because the surveyor of the roads in one township has no authority under the act to give information as to a road in another township. R. v. Fylingdales, 7 B. & C. 438; 1 M. & R. 176; 1 M. & R. M. C. 34, S. C. A presentment under the above act has exactly the same effect as the finding of a grand jury; and it has been held, that the power given by the 16th sect. of 13 Geo. III. c. 78, ante, 38, to two justices, to order any highways to be widened, extends to roads repairable ratione tenura. Cowp. 648. But neither this proceeding nor that of indictment can be instituted before any other tribunal than that in the jurisdiction of which they arise. (a) See now as to these, 1 Will. IV. c. 70, post, Wales. (b) Form (No. 77), post. PRESENTMENT. Evidence, certiorari, costs, &c. By information. By mandamus. By abatement of nuisance. The same rules, noticed ante, 67 to 69, as to the form of the indictment, will for the most part apply as to the form of the presentment. The statute gives a form of the presentment by a justice; see it, post, (No.77). A presentment for digging a trench in a footway was adjudged bad, for want of charging the offence to be against the form of the statute. The presentment was, that the justice "by virtue of the act, &c." and this the Court said referred to the authority and not to the offence. It was also urged, that the presentment corresponded with the form in the schedule; and the Court observed, that the form was confined to cases of non-repair. R. v. Winter, 13 East, 257. Quare, if the omission in such cases is not cured by the 69th sect. of 13 Geo. III. c. 78, post, 77. As to the Evidence, see ante, 70; Certiorari, post, 80; and Costs, post, 83, and ante, 72. (3) By Information in the King's Bench. An information for not repairing a highway may be granted, in the discretion of the King's Bench. Raym. 384; R. v. Steyning, Say. 92. But it is never allowed unless in cases of great importance, or where the grand jury have been guilty of gross misbehaviour in refusing to find the bill, because the fine, on conviction on such a proceeding, cannot be applied to the repair of the nuisance, which is always the case when the party is indicted. Bac. Ab. tit. "Highways." (4) By Mandamus. If the circumstances of the case require it, the Court of King's Bench will interpose with their authority, and issue a mandamus to compel a party to reinstate in good order a highway, for the nuisance to which he might also have been proceeded against by indictment. See R. v. Severn Railway Company, 2 B. & A. 646; and R. v. Commissioners of Dean Inclosure, 2 M. & S. 80. See R. v. Justices of Dorset, 15 East, 594, as to a writ of prohibition. (5) By Proceedings under Highway Acts. As to these proceedings, see them pointed out in the preceding pages. XV. Remedies for Nuisances to Highways by actual obstruction. THE remedies for nuisances to highways occasioned by actual obstruction, may be either, 1. By Abatement of the Obstruction; 2. By Indictment, and herein of the Punishment, &c.; 3. By Presentment; 4. By Information or Mandamus, &c.; 5. By Action; Or, 6. By Proceedings under the Highway Acts. (1) By Abatement of Quisance. Independently of any legal proceedings, it appears, that any person may lawfully abate a public nuisance; at least, if it be so placed in the highway as to obstruct the passage of his Majesty's subjects, 1 Hawk. c. 75, s. 12. But though a party may remove the nuisance, yet he cannot remove the materials, or convert them to his own use; Dalt. c. 50; and so much of the thing only as causes the nuisance ought to be removed, as, if a house be built too high, only so much of it as is too high should be pulled down. 9 Rep. 53; God. 221; 2 Stra. 686. And in all cases of removal of the nuisance, the party should take care |