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).

Quare, whether, in a plea by the inhabitants of a parish indicted for the non-repair of a road, that A. B. is liable to repair ratione clausuræ, it is sufficient to aver that the inclosure was made whilst A. B. was in occupation of the adjoining lands. (Reg. v. Mawgan, Inhabitants of, 3 Nec. & Per. 502; see ante, 522).

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. (í Saund. 23, n. (5); 2 Saund. 159, n. (10); sed vide R. v. Ecclesfield, Inhabitants of, 1 B. & Ald. 348).

Where the defendants are charged as bound to repair from custom, prescription, or tenure, they may, under the general issue, negative the duty thus alleged, and throw the burthen on the parish, or even on a particular individual or district. (Comb. 396; R. v. Norwici Inhabs. Cicitatis, 1 Stra. 181-183; 2 Saund. 159 b., n. (10); R. v. Scarisbrick, Inhabitants of, 6 Ad. & E. 509). 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. (R. v. City of Norwich, 2 Saund. 158, 2. (10)).

Where a special plea is unnecessary, and the whole defence might be 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. See ante, 596). And it will be necessary to traverse the obligation which the indictment alleges. (R. v. Stoughton, 2 Saund. 159, n. (10). An objection that the description of a highway in an indictment for the non-repair of it is too indefinite, as being equally applicable to several highways, should, according to a nisi prius decision, be taken by plea in abatement; and the description given, if true in fact, cannot be objected to at the trial under the plea of the general issue. (R. v. Hammersmith, 1 Stark, C. N. P. 357. See ante, 592).

18. Proceedings for not repairing.

Plea, where defendants charged scription, &c.

by custom, pre

Plea in abatement when highway not scribed.

sufficiently de

Replication.]-If the special plea of the parish improperly conclude Replication (a). 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. (R. v. Nottinghamshire, Inhabitants of, 2 Lev. 112; 1 Saund. 23, B. (5), S. C.)

Staying Proceedings.—In R. v. Lincombe, (2 Chit. Rep. 214), it was Staying proceeddecided, that the defendant cannot quash the indictment on an affidavit ings.

that the way is in repair, but that he ought to plead guilty, and pay a fine. And see R. v. Wingfield, 1 Wm. Blackstone, Rep. 602; R. v. Cheshunt, Id. 295. As to the judgment and punishment, see post, 597.

Evidence.]-On an indictment against a parish, it must be shewn that Evidence. the highway is a public one, and 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 see Archbold's Plead

(a) See post, Forms, Nos. 46 and 48.

18. Proceedings for not repairing.

How far former

acquittal or conviction evidence.

Reputation.

Award.

Witnesses.

View.

Costs of special jury.

Certiorari.

ing and Evidence in Criminal Cases, 655, n.) And as to what is a highway, and who are liable to repair it, see ante, 502, &c., 514, &c.

An acquittal upon a former indictment, for not repairing a highway, is not conclusive evidence, even if it be any evidence, to discharge th defendant; it concludes nothing as to the general liability, but on y shews that the defendant was not liable at the particular time laid in the former indictment. But yet it has been considered to be such evidence, that upon the acquittal of the inhabitants of a parish, the cour has suspended the judgment, in order that the case might again be tried without any prejudice from the former verdict. (R. v. The Inhabitant of Wandsworth, 1 B. & Ald. 63). And Lord Ellenborough said, that maintain the verdict would be to send the parties to a second trial, with a mill-stone about their necks, the weight of which it would be imp sible to resist. (See, also, R. v. Burbon, 5 M. & Sel. 322, post, 603). B: it seems that a conviction in such a case is conclusive as to the liab unless fraud can be shewn, and fraud is put by way of example. (Se v. St. Pancras, Peake's C. N. P. 219; R. v. Wandsworth, Inhabitas ;", 1 B. & Ald. 63; R. v. Whitney, 7 C. & P. 208; 2 Saund. 189 4 1. (10)). As against the parish at large, the judgment is not concus, if the defence was conducted by the inhabitants of a particular district, in which the indicted road lay, without any notice to the rest t parish. (R. v. Townsend, Dougl. 421; R. v. Lancaster, 2 Saund, 159, R. v. Eardisland, 2 Campb. 494). And it is very questionable whethe a judgment by default, upon an indictment for the non-repair of a h way, is at all conclusive evidence against the parish of their liabi (See R. v. Inhabitants of Whitney, 3 Nev. & M. 594; 3 Ad. & E. vk. S. C.)

On an indictment against the inhabitants of a township not repa a highway, evidence of reputation was offered by the defendants, the occupiers of a certain close had used to repair the road; but L Kenyon, C. J., would not receive such evidence. He said, that, a indictment against the public, traditional evidence is admissible; not where the public are shifting off the burthen upon an individ for, perhaps, the tradition may be manufactured by those who wa get rid of the burthen. (R. v. Wheaton Aston, Staff. Summ. As. R. v. Antrobus, 2 Ad. & E. 794; R. v. Wavertree, 2 M. & R ante, 524). See further as to evidence by reputation, tit. “E

Upon an indictment for the non-repair of a road ratione t was held, that an award made under a submission by a former t of the premises could neither be received as an adjudication, the having no authority to bind the rights of his landlord, nor as evid of reputation, it having been made post litem motam. ́(R. v. Co » Campb. 444).

As to competency of witnesses, see post, 606.

View.]-It may sometimes be desirable on the part either of the secutor or defendant, that the jury should have a view of the indicted. This cannot, it seems, be granted by the judges at the ass! (1 Sess. Cas. 180; 2 Barnard, 214; 3 Chit. C. L. 574); but ma obtained by removing the proceedings into the Queen's Bench b tiorari, which will, on proper affidavits, be granted. (See 3 Chit. 574); ante, tit. "Certiorari."

Costs of special Jury.]-The judge before whom the indictment is has power to certify for the costs of a special jury, under sect. 6 Geo. IV. c. 50. (R. v. Pembridge, Inhabitants of, Jurist, 1037, Q..

Certiorari.]-As to the removal of the indictment by certiorari the 5 & 6 Will. IV. c. 50, s. 95, ante, 591, and the observation other enactments, post, 610, &c.

Judgment and Punishment.]—The judgment and punishment usually are, that the defendants pay a fine, and repair the highway. (Bro. Abr. “Nuisance", 49; R. v. Stead, 8 T. R. 142—3; 1 Hawk. c. 75, s. 15. See Russell on Crimes, 371).

Sometimes the court will suspend the judgment. (See post, "Judgment," and post, 603).

In one case the court refused to make a rule absolute for a fine for non-repair of a road in the winter months, but enlarged the rule till Easter term. (R. v. Inhabitants of Walton, 4 Jurist, 195).

If a justice of the peace grant a certificate, and it appear by affidavit (a) that the road is in good condition, and likely to continue so, the court will merely assess a small fine, as 6s. 8d., or 13s. 4d. (R. v. Incledon, 13 East, 164; R. v. Loughton, Inhabitants of, 3 Smith, 575; R. v. Mawbey, 6 T. R. 635). And they will do 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. (R. v. Incledon, 13 East, 166-7).

At some sessions the practice is not to discharge the inhabitants from the indictment, upon the justice's certificate that it is in repair, and likely to remain so, till the road has undergone a winter's wear; and Coleridge, J., has acted upon this principle in the Queen's Bench, in the case of an indictment of this kind removed there by certiorari. (R. v. Witney, Inhabitants of, 5 Dowl. P. C. 728; Talf. Dick. Sess. 409). 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. (R. v. Wingfield, 1 Wm. Black. R. 602).

In Reg. v. Cluworth, (6 Mod. 163; Salk. 359, pl. 6; S. C. 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 bin upon the same proceeding, but a fresh indictment must be brought." (R. v. Machynlleth, 4 B. & Ald. 469; R. v. Old Malton, Id., n.)

Application and levying of Fines.]—By 5 & 6 Will. IV. c. 50, 8. 96, "No fine, issue, penalty, 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 sach 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 sach 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 te levied on any inhabitant of such parish, township, or place, then such inhabitant shall and may make his complaint to the justices at a special essions for the highways; and the said justices are 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 receiv

(a) The court, it would seem, would But it is better that there should also act upon the justice's certificate alone. be an affidavit. See Form, No. 56.

18. Proceedings for not repairing. punishment. Judgment and

Fines, penalties, how to be levied and applied.

and forfeitures,

18. Proceedings for not repairing.

Observations and decisions.

Apportionment of

for non-repair of turnpike road.

able 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."

Where a party had been indicted, and ordered to pay a fine, for not repairing a highway, but, before payment of such fine, effectually repaired the highway, the court held, that he was entitled to a stay of proceedings on the order, and that the prosecutors could not claim the fine upon behalf of third parties for repairs done before the indictment was preferred. (R. v. Barnard Castle, 5 Jurist, 799).

See ante, 589 n. (b), as to the penalty imposed upon a surveyor of the highways for not repairing a road under the 94th section of the above act, coming out of the highway rate under the above 96th section.

This provision is nearly similar to that contained in the repealed act, 13 Geo. III. c. 78, s. 47. It will be seen, however, that the justices & sessions, as well as the court, have now the power of directing the application of these particular penalties. Formerly the fines were generaly payable to the surveyor of the highways. (See R. v. Wingfield, 1 W ́m. Eid. Rep. 602). The fines upon inhabitants may be for non-appearanceta 12 indictment, or for the non-repair itself after conviction. The surveyя district surveyor who neglects to pay the inhabitants under this clause will be liable to the penalty prescribed by sect. 20, ante, 537. (Woolw.125),

It was held, that an application under the repealed sect. 47, in the 13 Geo. III. c. 78, for a rate to reimburse the inhabitants of a parish en 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 one case, the Court King's Bench refused a mandamus to make any rate for reimbursement under that clause, after the lapse of eight years from the levy. (R.. Justices of Lancashire, 12 East, 366).

In a case decided under the repealed act 13 Geo. III. c. 78, 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 co sidered 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. (R. v. Townshend, 2 Dougl. 420).

By stat. 3 Geo. IV. c. 126, s. 110, "When the inhabitants of say fine on indictment parish, township, or place, shall be indicted or presented for not repairinaz any highway, being turnpike road, and the court before whom sa 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 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 cre ditors, 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, it seems, 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 re moved 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. And see R. v. Pembridge, Inhabs. of, 6 Juris, 1037, post, 601).

18. Proceedings for not repairing.

Costs of prose

cution, when to

Costs of Prosecution of Indictment for not repairing.]—We have seen, (ante, 591), that the 95th sect. of the 5 & 6 Will. IV. c. 50, enacts that the judge of assize, or justices at sessions, before whom the indictment is tried, is to direct that the costs of the prosecution are to be paid out of the highway rate, in cases where magistrates direct the prosecution. A prosecutor had obtained a summons under the 94th section of the be paid out of the highway rate. above act, (ante, 588), calling upon the parish surveyors to shew cause why a highway should not be repaired. The surveyors denied the liability of the parish to repair, and the magistrates (under the 94th section) ordered an indictment against the inhabitants of the parish, which was preferred, and was tried as a traverse on the Crown side of the assizes, and the defendants found guilty :-Held, that the prosecutor was entitled to an order, under the above 95th section, to have his costs paid out of the highway-rate, and that the statute as to this was imperative, and left no discretion whatever in the judge. (Reg. v. Yorkhill (Inhabs. of), 9 Car. & P. 218).

A complaint was made to magistrates, under the 94th section of the above act, that a way, alleged to be a highway, was out of repair; the magistrates ordered an indictment against the inhabitants of the parish, which was found, and removed by certiorari; and on the trial of it, the defendants were acquitted, on the ground that it was not a highway. The prosecutor applied for costs, to be paid out of the highway rate, under the 95th section of the act. It was objected, this provision as to costs only applied where the existence of a highway was not disputed, and also that it did not apply when the indictment was removed by certiorari. The judge refused the order. (Reg. v. Chedworth (Inhabs.), 9 Car. & P. 285; and see R. v. Paul, Inhabs. of, 2 M. & Rob. 307; and 1 Russell on Crimes, 374; vide infra). It does not appear upon which ground the costs were refused.

And where the defendants are acquitted on the ground of there being no highway, the court is not bound to award costs under this section. (Reg. v. Paul, Inhabitants of, 2 M. & Rob. 308; Reg. v. Challicombe, Id. 311, n.; R. v. Chedworth, Inhabitants of, 9 C. & P. 285).

It has been held that the prosecutor is not entitled to costs, unless the case be tried; if, therefore, the defendant plead guilty, the former is not entitled to costs under this section. (R. v. Aston Ingham, Hereford Summer Assizes, 1840, R. v. Linton. Ib.; Williams, J., after consulting some of the other judges, 1 Russell on Crimes, 374).

Semble, that the above 95th section of the act and the 98th section (infra), are distinct in their operation, and are not to be connected. (R. v. Chedworth, 9 C. & P. 285).

Semble, that the magistrates are not bound to make their order in terms exactly following those contained in the information. (Ib.)

By 5 & 6 Will. IV. c. 50, s. 98, "It shall and may be lawful for the court before whom any indictment shall be preferred 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."

Upon the trial of an indictment for not repairing a highway, removed by certiorari, the judge at Nisi Prius has power to certify under this section. (R. v. Inhabitants of Pembridge, 6 Jurist, 1037, overruling R. v. Preston, 2 M. & Rob. 137). And see R. v. Preston, (7 Dowl. 593); where Williams, J., held, that, where an indictment has been preferred at the quarter sessions, and removed by certiorari into the Queen's Bench, that court has power, under the above 98th section to award to the prosecutor ests incurred previous to the removal of the indictment, if the defence has been frivolous or vexatious, in the opinion of the judge trying the cause. And per Denman, C. J., in R. v. Pembridge, supra, "The question is, whether the words the court before whom the indictment shall be preferred,' may mean the court where the indictment was tried. The word preferred' is more general than the word 'tried' in the

When awarded to be paid by party indicted.