been recently decided, that it is competent to the inhabitants of a county, upon the general issue, to give evidence of the bridge having been repaired by private individuals. But this evidence appears to have been considered barely admissible as a medium of proof that the bridge was not a public bridge, which undoubtedly the defendants had a right to prove by every species of evidence: and the Court seemed to think that it would have but little effect; though in order to ascertain whether a bridge be public, the mode of its construction, and the manner of its continuance, may be circumstances which, as they are connected with others, may have much or little weight.(w)

To an indictment for not repairing a bridge described as lying in two parishes, it is no plea that there has been a verdict and judgment against J. S. finding him liable to repair it ratione tenure, upon a presentment describing it as lying in one of the parishes; for he may be liable to repair only what is in one parish. The information was against the county of Essex for not repairing Dagenham Bridge, in the several parishes of Hornchurch and Dagenham; and the plea was that Knatchbull and Fanshaw had been presented for not repairing it ratione tenuræ of lands in Barking, and that a verdict and judgment had passed against Fanshaw; and to this there was a demurrer, because the presentment stated in the plea described the bridge as in Dagenham parish. And the Court said that Fanshaw might be bound to repair what was in Dagenham parish, and the county might be bound to repair the rest; and gave judgment for the King.(x)

It is said, that where the defendants plead that an individual ought to repair the bridge mentioned in the indictment, and take a traverse to the charge against themselves, the attorney-general, in this special case, may take a traverse upon a traverse, and insist that the defendants are bound to the repairs, and traverse the charge alleged against the individual: and that an issue ought to be taken of such second traverse; and that the attorney-general may afterwards surmise that the defendants are bound to repair it, and that the whole matter shall be tried by an indifferent jury.(y) But where the inhabitants of a county are indicted for not repairing a bridge, and they throw the charge upon another, they ought not to traverse their obligation to *repair; as it is a traverse of a matter of law, and might be

*566] made the subject of demurrer.(z)

Where to an indictment against a riding for not repairing a public carriage-bridge, the plea alleged that certain townships had immemorially used to repair the said bridge, it was held that evidence that the townships had enlarged the bridge to a carriage-bridge, which they had before been bound to repair as a foot-bridge, would not support the plea. (a) And, upon the same principle, where it was proved that a particular parish was bound by prescription to repair an old wooden foot-bridge, used by carriages only in times of flood, and that about forty years ago the trustees of a turnpike-road built on the same site a much wider bridge of brick, which had been constantly used ever since by all carriages passing that way; it was held that these facts did not support a plea pleaded by the county that the parish had immemorially repaired, and still ought to repair the said bridge.(b) Where the county was indicted for not repairing a bridge, and pleaded that one Marsack was liable to repair ratione tenure, it was held that this plea was not sustained by evidence that the estate of Marsack was part of a larger estate, which part Marsack purchased of the Lord Cadogan, who had retained the rest in his own hands, and had repaired the bridge as well before as after the purchase.(c)

(w) Rex v. Northampton, 2 M. & S. 262. If a bishop, &c., hath once or twice of alms repaired a bridge, this binds not; but yet it is evidence against him, that he ought to repair, unless he proves the contrary: 2 Inst. 700. See Reg. v. Sutton, ante, p. 549. (x) Rex v. Essex, T. Raym. 384.

(y) Hawk. P. C. c. 77, s. 5; Bac. Abr. tit. Bridges.

(z) Ante, p. 518, and the authorities there cited.

(a) Rex v. The West Riding of Yorkshire, 2 East 353, note (a); Rex v. Middlesex, 3 B. & Ad. 201 (23 E. C. L. R.).

(b) Rex v. Surrey, 2 Campb. 445. The facts would not have availed the county if the plea had been framed differently, as the county was clearly liable to the repair of the new bridge. See ante, p. 552.

(c) Rex v. Oxfordshire, 16 East 223.

The 1 Anne, st. 1, c. 18, s. 5, enacts, that all matters concerning the repairing and amending of bridges and the highways thereunto adjoining shall be determined in the county where they lie, and not elsewhere: but it seems that objection may be made to the justices where they are all interested, and that in such case the trial shall be had in the next county.(d) And no inhabitant of a county ought to be a juror for the trial of an issue, upon the question whether or not the county be bound to repair.(e) So that where the matter concerns the whole county, a suggestion may be made of any other county's being next adjacent :(f) and whether the county of the city, or the county at large, ought to repair, on a suggestion of these facts on the record, the venire will be awarded into the county adjacent to the larger district.(g) Inhabitants of counties may be witnesses in prosecutions against private persons or corporate bodies for not repairing bridges. The 1 Anne, stat. 1, c. 18, s. 13, reciting that many private persons or bodies politic or corporate, were of right obliged to repair decayed bridges, and the highways thereunto adjoining, and that the inhabitants of the county, riding, or division, in which such decayed bridges or highways lay, had not been allowed, upon information or indictments against such persons or bodies for not *repairing them to be legal witnesses; enacts, that in all informations or indictments in the courts of record at Westminster, [*567 or at the assizes or quarter sessions, the evidence of the inhabitants of the town, corporation, county, &c., in which such decayed bridge or highway lies shall be taken and admitted. Even before this statute, such evidence had been thought admissible from necessity.(h) Upon an indictment for not repairing a bridge and road, under a liability ratione tenure, inhabitants of the parish, in which the bridge and road lie, have been held competent for the prosecution, under the 54 Geo. 3, c. 170, s. 9.(i)

It was said in one case, (k) and decided in another,(7) that evidence of reputation could not be admitted to establish a liability to repair a bridge ratione tenuræ. But it has since been expressly held that such evidence is admissible to prove such a liability; for although the question may involve matter of private right, yet matters of public interest also depend upon it. Where, therefore, to a presentment that a bridge was out of repair the parish pleaded that A. was liable to repair it ratione tenure, and issue was joined on A.'s liability, it was held that evidence of reputation that A. ought to repair the bridge as alleged in the plea was admissible.(m) Upon the trial of an indictment against a township for the non-repair of a bridge, evidence is admissible that the solicitor for the prosecution had interviews with one of the churchwardens and the surveyor of the township, and that they on those occasions admitted that their township had always repaired the bridge, and showed township books containing entries on the subject, although it was not proved that these parties were ratepayers; but they lived together in a house in the township, and there was no other proof that they occupied property there; for every inhabitant, whether actually rated or not, is liable on an indictment against the inhabitants, and is a defendant on the record. He may, though a defendant, be a competent witness by the 3 & 4 Vict. c. 46; but it does not follow that the Crown can compel him to give evidence against his interest. At all events he is a defendant on the record, and what a defendant on the record says is evidence against him in every case.(n)

(d) Rex v. Norwich, 5 Geo. 1, cited in 2 Burr. 859; Burn's Just. tit. Bridges, V.

(e) 1 Hawk. P. C. c. 77, s. 6.

(f) Reg. v. Wilts, 6 Mod. 307, and see 1 Salk. 380; 2 Lord Raym. 1174.

(9) Rex v. Norwich, 1 Str. 177; 3 Chit. Crim. L. 593.

(h) Rex v. Carpenter, 2 Show. 47.

(1) Rex v. Hayman, Moo. & M. 401, Tindal, C. J. See the 14 & 15 Vict. c. 99, and 16 & 17 Vict. c. 83, post, Evidence.

(k) Rex v. Antrobus, 2 A. & E. 794 (29 E. C. L. R.), per Patteson, J.

(1) Reg. v. Wavertree, 2 M. & Rob. 353, Maule, J.

(m) Reg. v. Bedfordshire, 4 E. & B. 535 (82 E. C. L. R.). The plea alleged that three arches ought to be repaired by different persons, by reason of the tenure of three different manors, and the question rejected at the trial was whether a witness had heard from his deceased father, who ought to repair the second arch.

(n) Reg. v. Adderbury East, 5 Q. B. 187 (48 E. C. L. R.), Lord Denman, C. J.: "I should

As a prosecution for a nuisance to a public bridge has for its object the removal of the obstruction, or the effecting of the necessary reparations, the judgment of the Court upon a conviction will generally be regulated by the same principles as those which have been mentioned in relation to the judgment for a nuisance to a *568] highway.(0) The 1 Anne, stat. 1, c. 18, s. 4, enacts, that *no fine, issue, penalty, or forfeiture, upon presentments or indictments for not repairing bridges, or the highways at the ends of bridges, shall be returned into the Exchequer, but shall be paid to the treasurer, to be applied towards the repairs. But this seems only to relate to county bridges.

Where upon an indictment for not repairing a bridge the verdict was unsatisfactory, the practice formerly was to grant a rule for staying the judgment upon payment of the costs of the prosecution, in order that another indictment might be tried.(p) But it would seem that the Court would now grant a new trial in such a case.(g)

The 1 Anne, stat. 1, c. 18, s. 5, enacts, that no presentment or indictment for not repairing bridges, or the highways at the ends of bridges, shall be removed by certiorari out of the county into any other Court. But it has been decided that, notwithstanding these general words of the statute, an indictment for not repairing a bridge may be removed by certiorari at the instance of the prosecutor.(r) And it has been resolved that this clause of the Act extends only to bridges where the county is charged to repair; and that where a private person or parish is charged, and the right will come in question, the 5 Will. & M. c. 11, had allowed the granting a certiorari.(s) A certiorari lies to remove an order made by the justices concerning the repair of a bridge, pursuant to a private Act of Parliament; and the justices ought to return the private Act upon which their order is founded.(t) The 13 Geo. 3, c. 78, s. 64, empowered the Court trying an indictment for nonrepair of a highway to award costs to the prosecutor if the defence was frivolous; and the 43 Geo. 3, c. 59, s. 1, enacted that all "matters and things in the said Act contained relating to highways," shall, so far as applicable, be extended and applied to county bridges "as fully and effectually as if the same and every part thereof were herein repeated and re-enacted." And the Court of Queen's Bench held that the clause as to costs in the 13 Geo. 3, c. 78, was substantively re-enacted in the 43 Geo. 3, c. 59, with reference to county bridges, and therefore was not repealed by the 5 & 6 Will. 4, c. 50, which repeals in general terms the 13 Geo. 3, c. 78, and consequently that the costs of an indictment for the non-repair of a bridge may still be ordered where the defence is frivolous. (u)

The judge, who tries an indictment for the non-repair of a bridge, removed by certiorari, may certify after the assizes that the defence was frivolous, and by such certificate award payment of costs to the prosecutor, which will be enforced by the Court of Queen's Bench.(v)

say that where persons are discharging a public duty, they are primâ facie authorized to make communications of this kind, and their admissions are a proceeding, which must be evidence against those for whom they act."

(0) Ante, p. 523.

(p) Rex v. Oxfordshire, 16 East 223.; Rex v. Sutton, 5 B. & Ad. 52 (27 E. C. L. R.) ; 2 Nev. & M. 57.

(7) See Reg. v. Russell, 3 E. & B. 942 (77 E. C. L. R.), ante, p. 522.

(r) Rex v. Cumberland, 6 T. R. 194. Affirmed in Dom. Proc. 3 Bos. & Pull. 354. And see ante, note (p), p. 522.

(*) Rex v. Hamworth, 2 Str. 900; 1 Barnard 445. See as to the 5 W. & M., ante, p. 522. (t) Dalt. 504; Burn's Justice, tit. Bridges, V.

(u) Reg. v. Merionethshire, 6 Q. B. 143 (51 E. C. L. R.).

(v) Reg. v. Merionethshire, supra; and see Reg. v. Pembridge, 3 Q. B. 901 (43 E. C. L. R.), note (y), ante, p. 527.

*CHAPTER THE THIRTY-FIRST.

[*569

OF OBSTRUCTING PROCESS, AND OF DISOBEDIENCE TO ORDERS OF MAGISTRATES.

Sec. I.-Of Obstructing Process.

THE obstructing the execution of lawful process is an offence against public justice of a very high and presumptuous nature; and more particularly so when the obstruction is of an arrest upon criminal process. So that it has been holden that the party opposing an arrest upon criminal process becomes thereby particeps criminis: that is, an accessory in felony, and a principal in high treason. (a)1

And it should seem that the giving assistance to a person suspected of felony and pursued by the officers of justice, in order to enable such person to avoid being arrested, is an offence of the degree of misdemeanor, as being an obstruction to the course of public justice. (b) Thus an indictment was preferred against the defendant for a misdemeanor in the obstruction of public justice by rendering assistance to one Olive, who was suspected of forgery and pursued by the officers of justice, in order to enable Olive to avoid being arrested. It appeared in evidence that Olive had committed a forgery, as stated in the indictment; and had afterwards, in a state of desperation, thrown himself from the top of a house, by which he was greatly hurt; and that the defendant, who was a relation and commiserated his wretched condition, conveyed him secretly on board a barge from Gloucester to Bristol, and was actively employed at the latter place in endeavoring to enable him to escape from this country in a West India vessel. Advertisements had been printed and circulated, stating the charge against Olive, and offering a large reward for his apprehension; but it was not proved that any one of these advertisements had come to the knowledge of the defendant, or that the defendant was acquainted with the particular charge against Olive, or knew that he had been guilty of forgery, as alleged in the indictment. Upon this ground the defendant was acquitted; but no other objection was taken to the indictment.(c)

*Formerly, one of the greatest obstructions to public justice, both of the civil and criminal kind, was the multitude of pretended privileged places [*570 where indigent persons assembled together to shelter themselves from justice (especially in London and Southwark) under the pretence of their having been ancient palaces of the Crown, or the like; (d) and it was found necessary to abolish the supposed privileges and protection of these places by several legislative enactments. The 8 & 9 Will. 3, c. 27, 9 Geo. 1, c. 28, and 11 Geo. 1, c. 22, enact that persons opposing the execution of any process in the pretended privileged places thereinmentioned, or abusing any officer in his endeavors to execute his duty therein, so that he receive bodily hurt, shall be guilty of felony, and transported(e) for seven

(a) 4 Blac. Com. 128; 2 Hawk. P. C. c. 17, s. 1, where Hawkins submits that it is reasonable to understand the books which seem to contradict this opinion to intend no more than that it is not felony in the party himself, who is attacked in order to be arrested, to save himself from the arrest by such resistance.

(b) This position is not warranted by the case; for it states that "Olive had committed forgery," and the position ought to be "a person guilty of felony," instead of "suspected of felony." C. S. G.

(c) Rex v. Buckle, cor. Garrow, B., Gloucester Spring Ass. 1821.

(d) The White Friars and its environs, the Savoy, and the Mint in Southwark, were of this description.

(e) Penal servitude for seven and not less than three years by the 20 & 21 Vict. c. 3, s. 2, ante, p. 4.

1 Any obstruction of law process, whether it be by active means or the omission of a legal duty is an indictable offence; but the indictment must show what the process was, that it was legal and in the hands of a proper officer, and the mode of obstruction: State . Hailey, 2 Strob. 73. To constitute the offence of obstructing process in a criminal point of view there must be an active opposition, not merely taking charge of a debtor's property, keeping it out of view, and refusing, when called on by an officer, to place it within his reach: Crumpton v. Newman, 12 Ala. 199.

years; and persons in disguise, joining in or abetting any riot or tumult on such account, or opposing any process, or assaulting and abusing any officer executing, or for having executed the same, are declared to be felons without benefit of clergy.(ƒ)

In some proceedings, particularly in those relating to the execution of the revenue laws, (g) the legislature has made especial provision for the punishment of those who obstruct officers and persons acting under proper authority. But in ordinary cases, where the offence committed is less than felony, the obstruction of officers in the apprehension of the party will be only a misdemeanor, punishable by fine and imprisonment. (h)

A party will not be guilty of the offence of obstructing an officer, or the process which such officer may be about to execute, unless the arrest is lawful. And in an indictment for this offence it must appear that the arrest was made by proper authority. Thus where an indictment for an assault, false imprisonment, and rescue, stated that the judges of the court of record of the town and county, &c., of P. issued their writ, directed to T. B., one of the serjeants at mace of the said town and county, to arrest W., by virtue of which T. B. was proceeding to arrest W. within the jurisdiction of the said Court, but that the defendant assaulted T. B. in the due execution of his office, and prevented the arrest; the Court held that it was bad, as it did not appear that T. B. was an officer of the Court; a serjeant at mace ex vi termini meaning no more than a person who carries a mace for some one or other. And the Court also held that there could not be judgment, after a general verdict on such a count, as for a common assault and false imprisonment; because the jury must be taken to have found that the assault and imprisonment were for the cause therein stated; and that cause appeared to have been the attempt by the officer to make an illegal arrest. (i) Lord Ellenborough, C. J., said, "process ought always to be directed to a proper known officer; otherwise, if it may be directed to any stranger, it might be resisted for want of knowledge that the party is an officer of the Court. Then, taking the whole count together, the jury in effect find *571] that there was an assault and imprisonment, but committed under *circumstances which justified the defendant. For if a man without authority attempt to arrest another illegally, it is a breach of the peace; and any other person may lawfully interfere to prevent it, doing no more than is necessary for that purpose ;(k) and nothing further appears in this case to have been done.”(7)1

But where the process is regular, and executed by the proper officer, it will not be competent even for a peace officer to obstruct him, on the ground that the execution of it is attended with an affray and disturbance of the peace; for it is an established principle that if one, having a sufficient authority, issue a lawful command, it is not in the power of any other, having an equal authority in the same respect, to issue a contrary command; as that would be to legalize confusion and disorder.(m) The following case upon an indictment for an assault and rescue proceeded upon this principle. Some sheriff's officers having apprehended a man by virtue of a writ against him, a mob collected, and endeavored by violence to rescue the prisoner. In the course of the scuffle, which was at ten o'clock at night, one of the bailiffs, having been violently assaulted, struck one of the assailants, a woman, and it was thought for some time that he had killed her; whereupon, and before

(f) 4 Blac. Com. 128, 129.

(h) 2 Chit. Crim. L. 145, note (a).

(g) Ante, p. 172, et seq.
(i) Rex v. Osmer, 5 East 304.

(k) Sed quære, and see post, tit. Manslaughter in Resisting Officers. (1) Rex v. Osmer, 5 East 304.

(m) 1 East P. C. c. 5, s. 71, p. 304.

1 On the trial of an indictment for resisting a constable while engaged in executing process against the defendant's property, the defendant is not entitled to show that the officer had not taken the oath of office, or given the security required by law; it being sufficient in such a case that the party was an officer de facto: People v. Nopson, 1 Denio 574. An officer de facto, acting calore officie is as well qualified to act, while thus in office, as if legally appointed and duly qualified: Smith v. State, 19 Conn. 493; Aulanus v. Governor, 1 Texas 653. In an indictment for resisting a deputy sheriff in the discharge of his duty, it is unnecessary to set forth the specific acts of resistance complained of: State v. Copp, 15 N. H. 212.