statutes, (i) the inhabitants of a county liable to the repair of a public bridge are liable also to repair to the extent of three hundred feet of the highway at each end of it; and that, if indicted for not repairing such highway, they can only exonerate themselves by pleading specially that some other is bound to repair it by prescription or tenure.(k) And it seems that private persons are equally liable.(7)

It may be considered settled that where the liability to repair a bridge attaches by the general law, the liability to repair the approaches to the bridge for the space of three hundred feet follows the same rule. A corporation, therefore, liable by prescription, to repair a bridge, is also, primâ fueie, liable to repair the highway to the extent of three hundred feet at each end; and such presumption is not rebutted by proof that the corporation have been known only to repair the bridge, and that the only repairs known to have been done to the highway have been performed by commissioners under a turnpike road Act. The corporation of Lincoln, which is a county of itself, had, from time immemorial, exclusively repaired the fabric of a bridge, and were *liable by prescription to repair it, but there was [*559 no evidence that any part of the highway at each end of the bridge had ever been repaired by the corporation, or by the parish in which it was situated, but the whole of the highway, including the part of it which passed over the bridge, had, as far back as living memory went, been repaired by commissioners under a turnpike Act of the 29 Geo. 2. c. 84; it was contended, that a prescriptive liability was independent of the common law, and must, in each case, be measured by its own exact limits, which, in the present instance, were confined to the bridge itself. But as nothing appeared, by which the liability to repair the approaches, as parcel of the prescriptive liability to repair the bridge, was excluded; and as the non-repair by the parish, or the county, and the non-repair, de facto, by the defendants, when explained by the repairs having been done for a great number of years, by a body created by a modern act, were both consistent with a prescriptive charge, de jure, having been all the time existing and binding on the defendants; it was held, that in the absence of any evidence to the contrary, the prescription to repair the bridge must be intended to include within it the repair of the approaches to it, upon the same principle, which has united the approaches of the bridge to the bridge itself, in the case of a common law liability, that, namely, of rendering complete the benefit to the public, from the repair of the bridge itself. (m)

But where a new and substantial bridge, of public utility, was built within one county, and adopted by the public, it was held that the inhabitants of that county. were bound to repair it, although it was built within three hundred feet of an old bridge, repairable by the inhabitants of another county, who were bound as a matter of course under the 22 Hen. 8, c. 5, to maintain three hundred feet of road adjoining to their bridge, though it lay in the other county. The Court said, that while the space where the bridge was built continued a road, it was repairable as part of the old bridge; but that when there was a substantial bridge built upon it, such bridge was repairable, as a bridge by the inhabitants of the county in which it was situated, according to the statute.(n)

But now by the 5 & 6 Will. 4, c. 50, s. 21, "if any bridge shall hereafter(o) be built, which bridge shall be liable by law to be repaired by and at the expense of any county or part of any county, then and in such case all highways leading to, passing over, and next adjoining to such bridge shall be from time to time repaired by the parish, person, or body politic or corporate, or trustees of a turnpike road, who were by law before the erection of the said bridge bound to repair the said highways provided nevertheless, that nothing herein contained shall extend or be construed to extend to exonerate or discharge any county or any part of any county

(i) 1 Anne, st. 1, c. 18, ss. 3, 5, 13, and 12 Geo. 2, c. 29.

(k) Rex v. West Riding of Yorkshire, 7 East 588, and the judgment was afterwards affirmed in the House of Lords, 5 Taunt. 284 (1 E. C. L. R.).

(1) 3 Chit. C. L. 589.

(m) Rex v. The Mayor of Lincoln, 8 Ad. & Ell. 65 (35 E. C. L. R.); 3 N. & P. 273. (n) Rex v. Devon, 14 East 477.

(o) The Act came into operation on the 20th of March, 1836.

from repairing or keeping in repair the walls, banks, or fences of the raised causeways and raised approaches to any such bridge, or the land arches thereof."

It seems clear that those who are bound to repair public bridges *must *560] make them of such height and strength as shall be answerable for the course

of the water, whether it continues in the old channel, or makes a new one; and that they are not punishable as trespassers for entering on any adjoining land for such purpose, or for laying on the materials requisite for such repairs.(p) The Court of King's Bench once intimated, that if a bridge used for carriages, though formerly adequate to the purpose intended, were not of a sufficient width to meet the present public exigencies, owing to the increased width of carriages, the burthen of widening it must be borne by those who are bound to repair the bridge:(q) but in the House of Lords, on error, this point was considered as doubtful.(r) ́And, it has since been held, that the obligation upon a county is only to repair a bridge to the extent to which that bridge has been originally given to the public, and that they are not bound to widen it (s)

The taxing and collecting moneys for the repairing of bridges, and the highways, at the ends thereof, were first regulated by 22 Hen. 8, c. 5, and afterwards by the 1 Anne, stat. 1, c. 18, by which the justices at their quarter sessions were empow ered, upon presentment of any bridge being out of repair, to make assessments upon every town or place within their commissions for the charges of the repairs. The 12 Geo. 2, c. 29, s. 1, for the better collection of such moneys, appointed that they should be paid out of the general county rate; but sec. 13 enacted, that no money should be applied to the repair of any bridge, until a presentment should be made by the grand jury of its want of reparation. The 43 Geo. 3, c. 59, s. 2, also enacted, that no money should be applied to such purposes until presentment made of the insufficiency or want of reparation of such bridges. The 52 Geo. 3, c. 110, and 55 Geo. 3, c. 143, make alterations in this respect, and sec. 5 of the latter Act enacts, that "it shall and may be lawful to and for the justices of the peace of any county, city, riding, division, town corporate, or liberty, at their general quarter sessions respectively, to contract and agree, or to authorize any other person or persons to contract and agree, with any person or persons, for the maintaining and keeping in repair any county or hundred bridge, and the road over such county or hundred bridge, and so much of the roads at the ends thereof as are by law liable to be repaired at the expense of any such county, hundred, city, riding, division, town corporate, or liberty, or any part of the same; and the said justices are hereby empowered to order such sum or sums of money as may be contracted for and agreed to be paid for the repairing, amending, and supporting such bridges, and the roads over the same, or the ends thereof, to be paid (in cases where the county is liable to the repair thereof) by the treasurer of the county out *561] of the county rate: or (in cases where the hundred is liable to the *repair of the same) by the bridge-master (or other public officer charged with the repair of bridges) of the hundred, by which such bridge is liable to be repaired, for any term not exceeding seven years, nor less than one, although no presentment of the insufficiency, decay, or want of repair of the same, shall have been made, and although no public notice shall have been given by the said justices, at their respective general or quarter sessions, of their intention to contract for the repair of such bridges, or the roads at the ends thereof, as respectively directed by the said Act (12 Geo. 2, c. 29), provided nevertheless that, before any such contract shall be made, the said justices shall cause notices to be given in some public paper circulated in such county, city, riding, hundred, division, town corporate, or liberty, of their intention to contract." By the 4 & 5 Vict. c. 49, the justices in sessions (p) 1 Hawk. P. C. c. 77, s. 1; Bac. Abr. Bridges; 43 Ass. pl. 37; Br. tit. Presentment in Courts, pl. 22, 29; Dalt. c. 14.

(9) Rex v. Cumberland, 6 T. R. 194.

(r) Cumberland v. Rex, 3 B. & Pul. 354. But the judgment was affirmed upon the ground that, after verdict, it must be presumed that the over-narrowness of the bridge arose from its having been contracted from its ancient width.

(8) Rex v. Devon, 4 B. & C. 670 (10 E. C. L. R.); 7 D. & R. 147; Rex v. Middlesex, 3 B. & Ad. 201, per Lord Tenterden, C. J. But though their obligation is only to this extent, see as to the power to widen by an order at sessions: 43 Geo. 3, c. 59, s. 2, ante, p. 551.

may borrow money for repairing county bridges on the credit of the county rate, and may charge the rate with interest on the money borrowed, and with the payment of such further sum as shall secure the repayment of the money borrowed in fourteen years. By the 13 & 14 Vict. c. 64, provision is made for the repairs and rebuilding of bridges within cities corporate and boroughs, under the control of the councils of such cities and boroughs, and for the borrowing of money for such purposes. By the 22 Hen. 8, c. 5, s. 3, it was provided that where part of a county bridge shall be in one shire, &c., and part in another, the inhabitants of each shire, &c., shall be contributory.(t) It has been questioned whether a borough, which has no bridge within its own limits, be not liable to contribute to the repairs of a county bridge.(u) Where certain townships had enlarged a bridge to a carriage bridge, which they were before bound to repair as a foot bridge, it was held that they should still be liable to repair pro ratâ.(v) So where a carriage bridge had been built before 1119, and certain abbey lands had been ordained for its repair, and the proprietors of those lands had always repaired the bridge so built; and in 1736 the trustees of a turnpike road, with the consent of a certain number of the proprietors of the abbey lands, constructed a wooden bridge along the outside of the parapet of the carriage bridge, partly connected with it by brickwork and iron pins, and partly resting on the stone work of the bridge; it was held that this foot bridge was not parcel of the carriage bridge, which the proprietors of the abbey lands were bound to repair, but that the county was liable to repair it.(w)

The methods of appointing surveyors, &c., for effecting the repairs or rebuilding of bridges, and the powers given to such surveyors, and persons employed under contracts, to procure materials for such purposes, are contained in different Acts of Parliament, the provisions of which do not fall within the object of this work.(x) *Where those upon whom the liability rests of repairing public bridges

neglect their duty, such nonfeasance is a nuisance to the public, punishable [*562 by information, presentment, or indictment. An information was held to lie in the Court of King's Bench for the non-repair of a bridge in a case where it was considered that the 22 Hen. 8, c. 5, gave only a concurrent, but not an exclusive, jurisdiction to the sessions;(y) but probably it would not be granted, except in some cases of a peculiar nature, in which the Court might be satisfied that the purposes of justice would not be effected by an indictment.(z) The more usual course of proceeding is by indictment or presentment. (a)

Although the 5 & 6 Will. 4, c. 50, repeals the 13 Geo. 3, c. 78, which enabled a justice on his own view to present a highway which was out of repair, that enactment is kept alive as to county bridges by the 43 Geo. 3, c. 59, which extended the enactments of the 13 Geo. 3, c. 78, to county bridges so far as applicable thereto, and consequently a single justice may still present a bridge out of repair on his own view.(b)

The 22 Hen. 8, c. 5, s. 1, gave power to the justices of the peace to hear and determine, in their general sessions, all annoyances of bridges broken in the highways, and to make process, &c., as the King's Bench used to do By sec. 5, where any bridge is in one shire, and the persons or lands which ought to be charged are in

(t) This provision is alluded to by Lord Mansfield, C. J., in Rex. v. Weston, 4 Burr. 2511, and by counsel arguendo in Rex v. Clifton, 5 T. R. 501, 2. The usual proceeding at this time appears to be to indict each county separately, for neglecting to repair its own division.

(u) 1 Hawk. P. C. c. 77, s. 25; 1 Keb. 68.

(v) Rex v. The West Riding of Yorkshire, 2 East 353, note (a); and see Rex v. Surrey, 2 Campb. 455.

(w) Rex v. Middlesex, 3 B. & Ad. 201 (23 E. C. L. R.).

(z) See them collected in Burn's Just., tit. Bridges, VI.; and see also 55 Geo. 3, c. 143. By the 43 (eo. 3, c. 59, s. 4, inhabitants of counties may sue for damages done to bridges in the name of the surveyor.

(y) Rex v. Norwich, 1 Str. 177.

(z) See ante, p. 509.

(a) 2 Inst. 701. It has been held that an action will not lie by an individual against the inhabitants of a county for an injury sustained from a county bridge being out of repair: Russell v. The Men of Devon, 2 T. R. 667.

(b) Reg v. Brecon, 15 Q. B. 813 (69 E. C. L. R.).

VOL. I.-29

another shire; or where the bridge is within a city, or town corporate, and the persons or lands that ought to be charged are out of the said city; the justices of such shire, city or town corporate, shall have power to hear and determine such annoyances, being within the limits of their commission; and if the annoyance be presented, then to make process into every shire of the realm against such as ought to repair the same, and to do further in every behalf as they might do if the persons or lands chargeable were in the same shire, city, or town corporate where the annoyance is.

Any particular inhabitant or inhabitants of a county, or tenant or tenants of land chargeable with the repairs of a public bridge, may be indicted for not repairing it, and will be liable to pay the whole fine assessed by the Court for the default of such repairs; and will be put to their remedy at law for a contribution from those who are bound to bear a proportionable share in the charge.(c) It is sufficient, in an indictment against a parish, to allege that the inhabitants thereof have from time whereof, &c., repaired and amended, and have been used and accustomed, &c., without stating any other ground of liability.(d) And so it is against a hundred, although it appears that a township has been annexed to it by statute within time *563] of legal memory, such statute *providing that the inhabitants of the township should do everything the same as the inhabitants of the hundred did, or were bound to do.(e) In the case of a corporation, if it were alleged that the mayor, aldermen, and burgesses had from time immemorial repaired, and it appeared that there was a period when the corporation was not so constituted, it would be bad. In such a case, the proper way would be, to allege that the corporation had immemorially repaired; and then, however constituted the corporate body might have been at different periods, the allegation would be sustained.(ƒ) The indictment ought to show what sort of bridge it is; whether for carts and carriages, or for horses or footmen only; and if the duty to repair arise by reason of the tenure of certain lands, the indictment must show where those lands lie.(g) An indictment charging an individual with the repair of a bridge, by reason of his being owner and proprietor of a certain navigation, is not equivalent to charging him ratione tenure, but it is erroneous; and it seems that a count, charging an individual by reason of being owner of a navigation under a private Act of Parliament, must set forth the Act; and it is not sufficient to state that such party is chargeable, by being owner and proprietor of the property subject to the charge.(h) In presentments by the grand jury, it is said that there is no occasion to show who ought to repair; and that it is sufficient if the defect be shown, and the bridge stated to be public.(i) Where an indictment alleged that the defendant, and those whose estate he had in a certain mill, from time whereof the memory of man runneth not to the contrary, had repaired, and it appeared that the mill did not exist before the time of Hen. 8, it was held, that the liability from time out of memory was disproved.(k)

An indictment alleged that "from time whereof," &c., "there hath been and still is a certain common and public bridge over the river Cherwell," and that the inhabitants of the township of A. E. had repaired and of right ought to repair the part of the said bridge which lies in the said township. It appeared that the arch of the bridge was down to 1806 only nine feet wide as to breadth of road, but was widened in that year to the breadth of fifteen feet at the expense of the township. The road over it was a carriage road both before and after the widening. The defendants before the trial gave a written admission that the bridge in question was such a bridge as was described in the indictment. It was objected that the addi

(c) 1 Hawk. P. C. c. 77, s. 3; Bac. Abr. tit. Bridges, where the reason given is, that cases of this nature require the greatest expedition; and bridges being of the utmost necessity are not to lie unrepaired till lawsuits are determined.

(d) Rex v. Hendon, 4 B. & Ad. 628 (24 E. C. L. R.).

(e) Rex v. Oswestry, 6 M. & S. 361. See Rex v. Norwich, 1 Str. 177, ante, p. 550. (f) Per Holroyd, J., Rex v. Oswestry, 6 M. & S. 361. See a form there, note (a). (g) 1 Hawk. P. C. c. 77, s. 5.

h) Rex v. Kerrison, M. & S. 435.

(i) 3 Chit. Crim. Law 592, citing Andr. 285.

(k) Rex v. Hayman, Loo. & M. 401, Tindal, C. J.

tion of six feet in width, the repair of which must devolve on the county, was such an alteration that the prescriptive liability to repair the said part situate in the said township was negatived by the proof; but the Court of Queen's Bench held that there was no misdescription. Either the whole of the bridge, including the added part, was still an ancient bridge, and the liability the same as before; or the new part was severable, so that there was an ancient bridge and something else. And either state of things would support the allegation.(7)

[*564 There is no doubt that an indictment will lie against a corporation aggregate for the non-repair or obstruction of a public bridge,(m) or against any members of such corporation who cause an obstruction to a public bridge. (n)

As the occupier of land charged with the repair of a bridge, is undoubtedly liable to the performance of that duty, it is prudent to prefer the indictment against such occupier, and not against the owner, concerning whose liability doubts have arisen.(0) In a late case(p) the Court of Queen's Bench said, "With respect to the liability at common law to the repair of bridges ratione tenure, the result of the authorities seems to be to throw the charge ultimately upon the owner, though primarily, as far as the public are concerned, the occupier may be the person chargeable by indictment in case of non-repair, (q) and it would seem from those authorities that if the owner of land charged with the repair of a bridge ratione tenuræ suffer it to be out of repair, and the occupier of the land be indicted and fined, he would be entitled to look for reimbursement to the owner, who ought to have repaired, and who holds the land by the service of repairing the bridge.

Where an infant, eleven years old, inherited land charged with the repair of a bridge, and his guardian in socage resided on the land, but the infant did not, except occasionally; it was held, that although the infant was actually seised, yet being so by the possession of his guardian, he was not such an owner or occupier of the land, as to be chargeable by indictment for the non-repair of the bridge, but that the guardian was such an owner and occupier.(r)

It seems that, if there were no other person against whom performance of the repairs of a bridge could be enforced, infancy would not exempt a party, liable in other respects, from an indictment for non-repair.(r)

It is laid down, that it is not sufficient for the defendants in an indictment for not repairing a bridge to excuse themselves by showing either that they are not bound to repair the whole or any part of the bridge, without showing what other person is bound to repair it, and that in such case the whole charge shall be laid upon the defendants by reason of their ill plea.(s) But it is submitted that, from analogy to the case of highways, this doctrine must be understood only of indictments against the county, and not of indictments against individuals, or bodies corporate, who are not of common right bound to repair; because, as it lies on the prosecutor specially to state the grounds on which such persons are liable, [*565 they may negative these parts of the charge under the general issue.(t) And it has been holden upon an information for not repairing a bridge, that the defendants, if not chargeable of common right, may discharge themselves upon the general issue.(u) But it is clear that the inhabitants of a county, in order to exonerate themselves from the burden of repairing a bridge lying within it, must show by their plea that some other person is liable to repair.(v) It has, however, (1) Reg. v. Adderbury East, 5 Q. B. 187 (48 E. C. L. R.). Lord Denman, C. J., and Patteson, J., seemed to think the township liable to repair the added part.

(m) Reg. v. Birmingham and Gloucester R. Co., 3 Q. B. 223 (43 E. C. L. R.); Reg. v. Great N. E. R. Co., 2 Q. B. 315 (42 E. C. L. R.).

(n) Reg. v. Betts, 16 Q. B. 1022 (71 E. C. L. R.); Reg. v. Scott, 3 Q. B. 543 (43 E. C. L. R).

(0) See Rex v. Sutton, 3 A. & E. 597 (30 E. C. L. R.).

(p) Baker v. Greenhill, 3 Q. B. 148 (43 E. C. L. R.). See this case as to the construction of Acts dealing with certain liabilities to repair brides ratione tenuræ.

(9) Reg. v. Bucknell, 7 Mod. 55, 98; 1 Hawk. P. C. c. 77, s. 3, and the cases there cited. (r) Rex v. Sutton, 3 A. & E. 597 (30 E. C. L. R.),

(8) 1 Hawk. P. C. c. 77, s. 4; Bac. Abr. tit. Bridges; Burn's Just. tit. Bridges, V.

(t) 3 Chit. Crim. L. 592.

(u) Rex v. Norwich, 1 Str. 177, and see ante, p. 516. (v) Rex v. Wilts, 1 Salk. 359; 2 Lord Raym. 1174.