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secutor or

upon an

ment.

Snins assess

Highways. the surveyor who hath the care of any such road, to cause

such hedge, ditch, or fence, to be taken down, or filled up, Encroach- at the expense of the person or persons to whom the same ment to be shall belong; and it shall and may be lawful for any one taken down by the sur

or more justice or justices of the peace of the limit where veyor.

such offence shall be committed, upon proof to him or them made upon oath, to levy as well the expenses of taking down such hedges as aforesaid, as the several and respective penalties hereby imposed, by distress and sale of the offender's goods and chattels, in such manner as distresses and sales for forfeitures are authorized and directed to be

levied by virtue of this act. Court may award costs

LXV. And be it further enacted, that it shall and may to the pro

be lawful for the court before whom any indictment or pre

sentment shall be tried for not repairing highways, to award defendant

costs to the prosecutor to be paid by the person or persons indictment

go indicted or presented, if it shall appear to the said court or present 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.

LXVIII. And be it further enacted, that if any person ed may be levied by

shall refuse or neglect to pay the sum or sums assessed distress and upon him, by any assessment to be made in pursuance of sale of the this act, within ten days after demand thereof made, the offender's

same shall and may be levied by the surveyor, or any other goods.

person or persons authorized, by warrant under the hand and seal of one justice of the peace, having jurisdiction therein, by distress and sale of the goods and chattels of the person so refusing or neglecting, rendering the overplus to the owner or owners thereof, the necessary charges of making such distress and sale being first deducted ; and, in default of such distress, it shall be lawful for any such justice to commit the person so refusing or neglecting to the common gaol, there to remain until he shall have paid the sum so assessed, and the costs and charges occasioned

by such neglect or refusal. Surveyor LXIX. And be it further enacted, that the surveyor of may be a

any parish, township, or place, shall be deemed, in all competent witness.

cases, a competent witness in all matters relative to the execution of this act, notwithstanding his salary may arise in part from the forfeitures and penalties hereby

inflicted. Forfeitures, LXXIII. And be it further enacted, that all penalties writs, and

and forfeitures by this act imposed for any offence against charges, may be le- the same, and all costs and charges to be allowed and vied by

ordered by the authority of this act, (the manner of levying distress and and recovering of which is not hereby otherwise particularly sale of the

directed,) shall be levied by distress and sale of the goods offender's goods. and chattels of the offender, or person liable or ordered to pay the same respectively, by warrant under the band and Highways. 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 In what of the highway where such offence, neglect, or default, manner to

be applied. 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 highways: and in case such distress cannot be found, 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 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 offen- How to proders, or person or persons, liable or ordered to pay the ceed when

the offender same respectively, shall live out of the jurisdiction of the justice hereby authorized to grant such warrant, it shall in another and may be lawful for any justice of the peace of the limit jurisdiction. wherein such person shall inhabit, and every such justice is hereby required, upon request to him for that purpose made, and upon a true copy of the conviction whereby such forfeiture or penalty was incurred, and of the order for the payment of such costs and charges, produced and proved by a credible witness upon oath, by warrant under his hand and seal, to cause the penalty or forfeiture mentioned in such conviction, and the costs and charges mentioned in such order, or so much thereof as shall not have been paid, to be levied by distress and sale of the goods and chattels of such offender or offenders, or person or persons liable or ordered to pay the same respectively, as aforesaid ; and, if no sufficient distress can be had, to commit such offender or offenders, or person or persons liable, as aforesaid, to the common gaol, or house of correction of such limit, for the time and in manner aforesaid.

LXXVII. Provided also, and be it further enacted, that Conviction, no conviction shall be had or made by virtue of this act, how to be unless upon confession of the party accused, or upon the made.

lives with

ness.

Highways. oath of one or more credible witness or witnesses, or upon

the view of a justice of peace, in the cases before mentioned; Inhabitant and that any inhabitant of any parish, township, or place, of a parish in which any offence shall be committed contrary to this a

act, shall be deemed a competent witness, notwithstanding his or her being an inhabitant of such parish, township, or place.

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

REFERS.

No. XI.
Notice from the Surveyor to remove Nuisances and Obstructions,

and to cut Hedges, fc.

To C. D. of To remove In pursuance of the directions given by the act passed in the thirteenth nuisances year of the reign of his Majesty King George' tbe Third, “ For the and obstruc. Amendment and Preservation of the Highways," I, A. B., Surveyor tious. of the Highways for the parish, etc.) of

do hereby give you notice, forth with to remove the (dung, timber, stone, etc.) placed by you in a certain part of the king's highway, lying between

and in the (parish, etc.) of

to the To cut and obstrnetion and annoyance of the said highway: or (forthwith to cut, prune hedg. prune, and plash the hedges, and cut or prune the trees, and to open, es, and to

cleanse, and scour the several ditches and watercourses, belonging to cut or prune yon) in or near the bighway, lying between trees, and and

in the (parish, etc.) of to open and in or near the highway, lying between scour ditch. and

to the intent that the water may be es and wa

drained from the said highway, and that the sun and wind may not be tercourses. excinded from such highway, to the prejudice thereof. Dated this

day of

19 A. B.

No. XVI.
Order of tuo Justices for (widening) or (diverting and turning]

a Highway.
Middlesex.-We,

two of his Majesty's Jastices of the Peace for the said county, acting within the (hundred, etc.) of

within the said county, baving, upon view, found that a certain part of the highway between

ard

in the (parish, etc.) of

in the said (hundred), for the length of

yards, or thereabouts, and particularly described in the plan hereunto annexed, is

for the greatest part thereof narrow, and cannot be conveniently en. When it is larged and made commodious for travellers, without diverting and only to be

turning the same; and having viewed a course proposed for the said widened,

new highway, through the lands and grounds of leave ont and

of the length of the words yards, or thereabonts, and of the breadth of in Italic,

feet, or thereabouts, particularly described in the plan hereunto annexed, and insert, which we think will be more commodious to the public; we do bereby

order, that the said highway be diverted and turned through the be conve?

lands'aforesaid; and that the Surveyor of the Highways for the (parish,

* But may

etc.) of

where the said old highway lies, Highways. do forth with proceed to treat and make agreement with the said

and

for 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 agreement shall be made as aforesaid, we do order an equal assessment,

widened not exceeding the rate of sixpence in the pound, to be made, levied, and and en, collected 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.

A. B.
C. D.

6. Big

year of

in the said of the sur..

No. XXXII. 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

in the the reign of

before

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 Pre. servation of the Highways,” (upon his own view,) or, upon information This to be upon oath, to him given by C. D., surveyor of the bighways 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 commou and ancient king's highway, information leading from the town of (county, etc.) towards and unto

veyor. within the same (county,) used for all the King's subjects, with their korses, 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

situate, lying, and being in the (parish, etc.) of

in the same (rounty,) containing in length

yards, and in breadth

feet, on the day of

in the

year of the reign of

and continually afterwards, until the present day, was, and yet is, very ruinous, deep, broken, and in great decay, for want or due reparation and amendment, so that the subjects of the king, throngh 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, wben and so often as it shall be necessary.

la testimony whereof, the said A. B. to these presents hath set his
hand and seal, this

day of
in the year aforesaid.

as

Note. A presentment order this and that it is situated in the parish. statule, charging part of a parish It is not necessary to state, that only with the repairs of a road, " from time wbereof, &c., or from which is against common right, time immemorial,” there was and must shew expressly how the inha. is a common and ancient king's bitants of that part are liable. The highway ; it is sufficient to state, form of the presentment in the in a compendious manner, that it schedule applies only to

whole is a highway: Aspinal v. Brown, parishes : R. v. Penderryn, 2 T. R. 3 T. R. 265. But the indictment 510. It must be observed, also, must show, that the way is comthat the clause giving the magis. mon to all the king's people; and, trates authority to present (see therefore, if it only cbarge a nuisection 24), is confined, in the sance to a horseway, witbout addterms of it, to offences committed ing that it is a bigbway, it is bad : contrary to the provision and in. Cro. Eliz. 63. Though it is usual, tent of the act; and, therefore, it is said not to be necessary, to whatever the offence may be, it state the ternini of the bighway, is only presentable by a magistrate 1 Russ. 329, R. v. Stoughton, 2

an offence against the act. Saund. 158, 6. note 7; but, if Therefore, as the form of present stated, they must be proved. Gement in the schedule is confined nerally, every material variance to cases of mere repair, a present. from the description of the road ment for a nuisance by obstruc- will be fatal : tbus, an averment tion, must allege the offence to be that the highway leads from A to done against the form of the sta. C., is not satisfied by evidence of tute : R v. Winter, 13 Eust, 257. a road leading from A. to B., and For precedents of indictments for communicating with C. by means nuisances by obstruction, see Cro. of a cross-road : R. v. Great Can. Circ. Comp. 303, et seq. It has field, 6 Esp. 136. And where the been held, that an indictment for highway is described as leading laying soil in the highway, need between A. and B., or from A. unto pot set out the length and breadth B., both those parishes are necesof the nuisance : Sayer, 98. If a sarily excluded; and an indict. way has been generally used by all ment will be bad if it fail to state, ordinary carriages, that is sufficient that the highway is in the parish to constitute it a highway; and, indicted, although the part out of therefore, in an indictment for ob- repair be expressly stated to be in structing a way so circumstanced, the parish indicted, and be repreit may be laid as a common high- sented as part of the road before way for carts, carriages, &c. al- described : R. v. Gamlingay, 3 T. though it has always been arched R. 513 Ip a late case, however, over, and the archway be not suf. Lord Tenterden is reported to have ficiently high to permit road wag- said, that to and from have fregons and other carriages of un- quently an inclusive meaning, and usual dimensions, to pass under it. that he was by no means satisfied R. v. Lynn, 1 C. & P. 527. In with the general rule laid down in every indictment against a parish R. v. Gamlingay, that they ought for not repairing a highway, there to be construed exclusively: R. v.

three essential averments; Knight, 1 Man. & R. 219. It is namely, that the road is a highway, said to be necessary to allege, in that it is out of repair, (see R. v. the presentment or indictment, to Stretford, 2 Lord Raym. 1169,) what part of the highway the nui

are

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