to do no more damage than is actually necessary for the purposes of the REMEDIES FOR removal.

As to the power of a Court of equity to abate, &c. see 18 Ves. 211.

(2) By Indictment, Punishment for, &c.

OBSTRUCTIONS.

The party guilty of a nuisance to a highway may be indicted at common By indictment. law, post, Nuisance, Vol. III., and this is the most usual mode of proceeding.

A party may also be indicted for the continuance of a nuisance; and this, though he has been before indicted, for every continuance of a public nuisance is in law a new nuisance. R. v. Stead, 8 T. R. 142.

Also it seemeth that an heir may be indicted for continuing an encroachment, or other nuisance to a highway, begun by his ancestor. I Hawk. c. 76, 8. 61.

An indictment does not lie merely for not cleaning a highway, ante, 11; or for merely diverting it. 1 And. 234.

In Reg. v. Watts, 1 Salk. 357, an indictment was allowed for not repairing a house standing on a highway, ruinous and like to fall down, which the defendant occupied, and ought to repair ratione tenuræ suæ.

As to the requisites of the indictment, see the rules, ante, 67-8, as to indictments for not repairing highways, which will for the most part apply here. For a continuance of an obstruction, the indictment should state the facts accordingly. R. v. Stead, 8 T. R. 142; Austin's case, 1 Ventr. 183.

The indictment must contain the words "to the common nuisance of all the liege subjects of our lord the now king," residing, passing, or using, &c. according to the facts, in its conclusion; 2 Stra. 688; Com. Dig. Indictment, G. 6; and it is said, that if the indictment conclude, to the damage of divers subjects, it will be insufficient. Cro. Eliz. 148.

The defendant cannot make objections to the indictment till he has pleaded. Dalt. c. 66.

The plea is the general issue, not guilty.

As to the Evidence in general to prove the highway being public, see ante, 5. Evidence and witAs to Witnesses, see post, 77.

As to Certiorari, see title Certiorari, Vol. I.

nesses.

Punishment]-The punishment for a common nuisance is fine and im- Punishment. prisonment, at the discretion of the court in which the offender is convicted. i Hawk. e. 75, s. 14, 15. But no confinement or corporal punishment is now inflicted.

The object of the prosecution is, to remove the nuisance; and to that end alone the sentence is in general directed. It is therefore usual, when the nuisance is stated on the proceedings as continuing, in addition to a fine, to order the defendant, at his own costs, to abate the nuisance. 2 Stra. 686.

It should seem, however, that where a building is not a nuisance in itself, but becomes so, either by its extension, or the use made of it for carrying on a noxious trade, the house itself ought not to be demolished, but only such part removed as annoys the public, or such injurious occupation discontinued. Id. And where the nuisance is not charged as still existing, but as having been offensive on a day specified, no judgment need be given to abate; because it would be absurd to adjudge that to be destroyed which does not appear to exist. R. v. Stead, 8 T. R. 142.

And if the Court be satisfied that a nuisance indicted is already effectually abated before judgment is prayed upon the indictment, they will not, in their discretion, give judgment to abate it; and they refused to give such judgment upon an indictment for an obstruction in a public highway, which highway, after the conviction of the defendant, was regularly turned by an order of justices, and a certificate obtained, that the new way was fit for the passage of the public, and on affidavits that so much of the old way indicted, as was still retained, was freed from all obstruction. R. v. Incledon, 13 East, 164.

As to Costs, see title Costs, Vol. I.

Asto Certiorari, see, in general, tit. Certiorari, Vol. I. The 24th sect. of the OBSTRUCTIONS. 13 Geo. III. c. 78, post, 80, does not apply to an indictment for this offence.

REMEDIES FOR

By presentment.

By information.

By action.

(3) By Presentment.

It seems, that a nuisance to a highway by actual obstruction may be presented in the leet, or at the sessions. As to the form of such presentment, the same rules as to indictments, ante, 75, will apply. And see further as to Presentments for Non-repairs, ante, 72-3; and as to Presentments in general, title Presentment, Vol. V.

(4) By Information in the Court of King's Bench, &c. An information in the Court of King's Bench for a nuisance to a highway by actual obstruction, might, under circumstances, be granted; but it is a proceeding scarcely ever adopted. See ante, 74, and title Enformation, Vol. III.

As to Mandamus, see ante, 74.

(5) By Action.

In general, no action can be maintained for a public injury. Therefore, an action does not lie for obstructing a man's passage in a highway, because he has no more damage than others of the king's subjects; but it must be by indictment. Pain v. Partridge, Comb. 180; R. v. Saintiff, 6 Mod. 255; 3 Mod. 289; Show. 243; Cro. Eliz. 664.

But if a person has sustained more particular damage by the nuisance than the public in general, as if an accident occurs to him, or if he be obliged to go a greater distance, and thereby put to an expense in the conveyance of his goods or otherwise, then he may sue the party who made the nuisance. See Rose v. Miles, 4 M. & S. 101; Hall v. Smith, 2 Bingh. 156; Greasley v. Codling, 2 Bingh. 263. And as to leaving open cellar doors, see Daniels v. Potter, 4 Car. & P. 262.

(6) By Proceedings under the Highway Acts.

To point out these proceedings would be but again detailing the various provisions of the General Highway Act already noticed. They will be found under the section relating to Surveyors, ante, 53; and the section relating to Nuisances and Annoyances, ante, 58 to 67.

13 Geo. 3, c. 78. Persons resisting the execution of this act, or con

XVI. General Penalty for hindering Execution of Highway

Act.

By stat. 13 Geo. III. c. 78, s. 71, “In case any person or persons shall resist or make forcible opposition against any person or persons employed in the due execution of this act, or make any rescue of the cattle or stables refusing to other goods distrained by virtue of this act; or if any constable, head

obey the warrant

of a justice of peace, to forfeit not exceeding 107. nor less than 40s.

borough, or tithingman, shall refuse or neglect to execute or obey any warrant or precept granted by any justice of the peace, pursuant to the directions of this act, every such person offending therein, and being convicted thereof by a justice of the peace, shall, for every such offence, forfeit any sum not exceeding 107., nor less than 40s., at the discretion of the justice before whom he or she shall be so convicted; to be paid to the surveyor of the highways for the parish, township, or place where the offence was committed, to be laid out in the repair of the highways: and in case he or she do not forthwith pay, or secure to be paid, the said forfeiture, after such conviction, then it shall and may be lawful for such justice of the peace to commit such person or persons to the common gaol, or house of

correction, of the limit where such offence shall be committed, there to re- HINDERING main for any time not exceeding three months, unless the said forfeiture HIGHWAY-ACT. shall be sooner paid."

XVII. Witnesses.

We have already seen, ante, 70, who is a competent witness on an in- Indictment. dictment or presentment for the not repairing or for obstructing of a highway.

By the 13 Geo. III. c. 78, sect. 68, "The surveyor of any parish, town- Surveyor a comship, or place, shall be deemed, in all cases, a competent witness, in all petent witness. matters relative to the execution of this act, notwithstanding his salary may

arise in part from the forfeitures and penalties hereby inflicted."

Sect. 76. "That no conviction shall be had or made by virtue of this act, Conviction.

unless upon confession of the party accused, or upon the 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, Inhabitant comtownship, or place, in which any offence shall be committed contrary to petent. this act, shall be deemed a competent witness, notwithstanding his or her

being an inhabitant of such parish, township, or place."

ed to administer oaths.

Sect. 77. "That it shall and may be lawful for any justice of the peace Justices empowerto administer an oath to any witness or witnesses, or other person or persons, for the better discovery and execution of the several matters or things hereinbefore authorized or directed to be examined, inquired into, or performed by such justice."

See also the 54 Geo. III. c. 170, s. 9, ante, 70.

As to Witnesses and Evidence in general, see tit. Evidence, Vol. II.

XVIII. Forms of Proceedings under Highway-Act.

THE 13 Geo. III. c. 78, s. 69, enacts "That the forms of proceedings re- Forms of proceedlative to the several matters contained in this act, which are set forth and ings. expressed in the schedule hereunto annexed, shall be used upon all occasions, with such additions or variations only as may be necessary to adapt them to the particular exigencies of the case; and that no objection shall be made, or advantage taken, for want of form in any such proceedings, by any person or persons whomsoever."

Sect. 80. "That no proceedings to be had or taken in pursuance of this Want of form. act shall be quashed or vacated for want of form, or removed by certiorari,

or any other writ or process whatsoever (except as hereinbefore mentioned), into any of his Majesty's Courts of record at Westminster, any law or statute to the contrary notwithstanding."

It has been considered that the enactment of the above 69th section is imperative; Davidson v. Gill, 1 East, 64; but, according to R. v. Casson, 3 D. & R. 40, the act is only directory.

At all events, a material variation from the form prescribed is fatal, and may be taken advantage of in a collateral proceeding. Davidson v. Gill, 1 East, 64. See further, title Conviction, Vol. I.

A variety of forms will be found, post, 85.

XIX. Fines for Non-Repairs, &c., how Lebied and Applied.

We have already seen, that a fine may be imposed upon the defendants convicted under an indictment for the non-repair of a highway, ante, 71. And as to the fine on a presentment for the non-repair of a highway under the 24th section, see ante, 73.

Fines for non

repair, how levied and applied.

With respect to the application of a fine upon an indictment for the non- Ilow applied. repair of a highway, by stat. 13 Geo. III. c. 78, s. 47, "No fine, issue,

REPAIRS, HOW LEVIED, &c. 13 Geo. 3, c. 78.

FINES FOR NON- penalty, or forfeiture, for not repairing the highways, or not appearing to any indictment or presentment 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 or persons residing in or near the parish, township, or place where the road shall lie, as the Court imposing such fines, issues, penalties, or forfeitures, shall order and direct, to be applied towards the repair and amendment of such highways. And the person or persons 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 Court, or, in default thereof, shall forfeit double the sum received."

How levied upon a parish, &c.

Sect. 47. "If any fine, issue, penalty, or forfeiture to be imposed on any such parish, township, or place, for not repairing the highways, or not appearing as aforesaid, shall hereafter be levied on any one or more of the inhabitants of such parish, township, or place, that then such inhabitant or inhabitants shall and may make his or their complaint to the justices of the peace at their special sessions; and the said justices are hereby empowered and authorized, by warrant under their hands and seals, to cause a rate to be made, according to the form and manner herein last before prescribed, for the reimbursing such inhabitant or inhabitants the monies so levied on him or them as aforesaid; which rate so made, and confirmed by any two justices, shall be collected and levied by the surveyor of the highways of such parish, township, or place, so presented or indicted as aforesaid; and the said surveyor shall, within one month next after the making and confirming the rate aforesaid, collect, levy, and pay unto such inhabitant or inhabitants the money so levied on him or them as aforesaid."

Fines for not repairing highways ratione tenure are payable to the surveyor of the parish highways. R. v. Wingfield, 1 Bla. Rep. 602.

An application under the above clause for a rate to reimburse the inhabitants of a parish on whom a fine for the non-repair of a highway has been levied, ought to be made in a reasonable time after such levy, so that it may be prior to any material change of the inhabitants. And in a late case the Court of King's Bench refused a mandamus to make any rate for reimbursement under 13 Geo. III. c. 78, s. 47, after the lapse of eight years from the levy. R. v. Justices of Lancashire, 12 East, 366. In this case an indictment was found at the Lancaster sessions in 1801, against the parish of Eccles, for not repairing a road. Eccles is divided into five townships, and each township into several hamlets: Barton (one of the townships) was divided into twelve : each hamlet had immemorially repaired its own highway; the other four townships did not interfere, but Barton alone undertook the defence. The parish of Eccles were found guilty, and a fine of 400l. imposed and levied upon two persons of the parish. Applications were made from time to time on their behalf to the justices for a rate on the parish of Eccles to reimburse them, but without effect. In 1808, application was again made for a rate; and in 1809, all the circumstances were laid before the sessions, and they ordered the balance of the money remaining in hand (1487. 17s. 10d.) to be paid over to these two persons; but the justices refused to make any order for reimbursement as to the rest of the 400%., which had been actually expended. A mandamus was now moved for to the justices of the county to cause a rate to be made pursuant to stat. 13 Geo. III. c. 78, s. 47, for reimbursing them as to that remainder: this application being eight years after the original preferring of the indictment, it was refused, the interval being so great, and the inhabitants being in a great proportion changed; and Le Blanc, J., said, those who were obliged to pay the money in the first instance ought to have applied within reasonable time for reimbursement, and not have waited till a great change had taken place in the body of the inhabitants who were to contribute to it.

R. v. Townshend, 2 Dougl. 420. Where a parish, consisting of two districts which were bound to repair separately, having been convicted for not repairing a road in one of the districts, the other district not having had notice of the indictment, the Court considered it as substantially the conviction of the one district; and a fine having been levied on an inhabitant of the other, they granted a special mandamus for a rate to be levied on the district bound to repair the indicted part of the road.

By stat. 3 Geo. IV. c. 126, s. 110, "When the inhabitants of any parish, township, or place, shall be indicted or presented for not repairing any highway, being turnpike road, and the Court before whom such indictment or presentment shall be preferred, shall impose a fine for the repair of such road, such fine shall be apportioned, together with the costs and charges attending the same, between the inhabitants of such parish, township, or place, and the trustees or commissioners of such turnpike road, in such manner as to the said Court, upon consideration of the circumstances of the case, shall seem just. And it shall and may be lawful for such Court to order the treasurer of such turnpike road to pay the sum so proportioned for such turnpike road out of the money then in his hands, or next to be received by him, in case it shall appear to such Court, from the circumstances of such turnpike debts and revenues, that the same may be paid without endangering the securities of the creditors, who have advanced their money upon the credit of the tolls to be raised thereupon, which order shall be binding upon such treasurer, and he is hereby authorized and required to obey the same.'

The Court which imposes the fine has the power, under this statute, to apportion it between the parish and the trust; so that where an indictment was originally preferred at the assizes, and afterwards removed into the Court of King's Bench by certiorari, it was held, that the Court of King's Bench might apportion the fine. R. v. Upper Papworth, 2 East, 413.

XX. Penalties under the Highway Act, how recoverable, and

applied.

By stat. 13 Geo. III. c. 78, s. 72, "All penalties and forfeitures by this act imposed for any offence against the same, and all costs and charges to be allowed and ordered by the authority of this act, (the manner of levying and recovering of which is not hereby otherwise particularly directed), shall be levied by distress and sale of the goods and chattels of the offender, or person liable or ordered to pay the same respectively, by warrant (a) under the hand and seal of some justice of the peace for the limit where such offence, neglect, or default, shall happen, or such order for payment of such costs or charges shall be made, rendering the overplus of such distress (if any be) to the party or parties, after deducting the charges of making the same; which warrant such justice is hereby empowered and required to grant, upon conviction of the offender, by confession or upon the oath of one or more credible witness or witnesses, or upon order made as aforesaid; and the penalties and forfeitures, when so levied, shall be paid, the one half to the informer, and the other half to the surveyor of the highway where such offence, neglect, or default, shall happen; to be applied towards the repair thereof, unless otherwise directed by this act; but in case the surveyor shall be the informer, then the whole shall be employed towards the repair of such highway: and in case such distress cannot be found (6), and such penalties and forfeitures, or the said costs and charges, shall not be forthwith paid, it shall and may be lawful for such justice, and he is hereby authorized and required, by warrant (c) under his hand and seal, to commit such offender or offenders, or person or persons, liable to pay the same respectively, to the common gaol, or house of correction, of the limit where the offence shall be committed, or such order as aforesaid shall be made, for any time not exceeding three months, unless the said penalty, forfeiture, costs, and charges, shall respectively be sooner paid; and if such offender or offenders, or person or persons, liable or ordered to pay the same respectively, shall live out of the jurisdiction of the justice hereby authorized to grant such warrant, it shall and may be lawful for any justice of the peace of the limit wherein such person shall inhabit, and every such justice is hereby required, upon request to him for that purpose made,

(a) Form (No. 82), post. (b) Form (No. 83), post. (c) Form (No. S4), post.

FINES FOR NON-
REPAIRS, HOW

LEVIED, &c.

3 Geo. 4, c. 126. Apportionment of fine on indictment for non-repair of turnpike road.

13 Geo. 3, c. 78. feitures, costs and charges, how to be

Penalties and for

recovered and applied.

How to proceed where in an other jurisdiction.

where the offender