Plea, that a particular district in the parish, is bound to repair. Berkshire, Michaelmas Sessions, 1836. The King v. The Inhabitants of the Parish of -- And A. B. and C. D., two of the inhabitants of the said parish of by E. F. their attorney, for themselves and the rest of the inhabitants of the said parish (except the inhabitants of the township of L. within the said parish) come into Court here, and having heard the said indictment read, say, that our Lord the King ought not further to prosecute the said indictment against the inhabitants of the said parish (except the inhabitants of the said township of L. :) because they say, that the inhabitants of the said township of L., from time whereof the memory of man is not to the contrary, have repaired and amended, and have been used and accustomed to repair and amend, and of right ought to have repaired and amended, and still of right ought to repair and amend, when and so often as it hath been or shall be necessary, such and so many of the common highways situate in the said township as would otherwise be reparable and amendable by the inhabitants of the said parish at large. And the said A. B. and C. D. in fact say, that the said part of the said highway in the said indictment mentioned and described to be ruinous, miry, deep, broken, and in great decay, lies and is situate in the said township of L.; by reason whereof the inhabitants of the said township of L. in the parish aforesaid, during all the time last aforesaid, ought to have repaired and amended, and still ought to repair and amend the same part of the said common highway, so ruinous, miry, deep, broken and in decay, when and so often as it hath been and shall be necessary; and the inhabitants of the said parish at large ought not to be charged with the repairing and amending of the same. And this the said A. B. and C. D. are ready to verify; wherefore they pray judgment, and that they and the rest of the inhabitants of the said parish of (except the inhabitants of the township of L. aforesaid) by the Court here may be dismissed and discharged from the said premises in the said indictment above specified. If that part of the highway, stated to be out of repair, be situate in two or more townships, each of which repairs its own roads, the plea may be framed accordingly; but it must state with certainty what part of the road is within the one township, what within the other. R. v. Bridekirk, 11 East, 304. If the road in question have been a highway immemorially, it should seem that the custom may be pleaded as to this highway alone, without pleuding it as to all the other highways within the township. See R. v. W. R. Yorkshire, 4 B. & Ald. 623. The above plea is framed upon the case of R. v. Ecclesfield, 1 B. & Ald. 348. In that case, it was objected that the parish could not get rid of their common law liability, by throwing the burthen upon others, without stating in their plea some consideration for the liability of the latter; that in R. v. St. Giles, Cambridge, (5 M. & S. 260,) it was holden, that to an indictment against a parish for not repairing a highway within it, it was not sufficient to plead that another parish had immemorially repaired and ought to repair it, but the plea ought to have shewn a consideration; and that such was the case where individuals were charged with the repair of highways, and in all cases except where corporations are so charged. But the Court held the plea to be good, without stating any consideration; the mistake in imagining that a consideration should be stated, arose entirely from mistaking the custom laid in the plea, for a prescription: a custom must be alleged in the land, a prescription in the person; and as none but bodies politic or corporate, spiritual or temporal, which have perpetual succession, can be bound to repair a way by prescription, therefore it is, that a plea that an individual is liable to repair, must always shew a consideration, although it is otherwise in pleading the liability of a corporation; but where a custom, which is of a local and not of a personal nature, is pleaded, as in this case, where the plea states the liability of the district of a parish to repair a road within it, no consideration need be stated; if inded, as in R. v. St. Giles, it were sought to throw upon another parish, or on some district in the same parish, the liability of repairing a road not within it, there, inasmuch as a custom to repair could not be pleaded, a custom being to be alleged in the land as above mentioned, a consideration must be stated. In the above case, it was also objected that the plea ought to have concluded with a special traverse of the liability of the parish to repair; but the Court held, that even if a special traverse were necessary, the allegation towards the end of the plea, that the inhabitants of the parish at large ought not to be charged, &c. was a sufficient and effectual traverse. Id. Where the plea merely stated that a certain district of the parish immemorially ought to repair, without stating that it had immemorially repaired, it was holden bad, on writ of error. R. v. Great Broughton, 5 Burr. 2700. The matter of this plea must be pleaded; it cannot be given in evidence under the general issue. Ante, p. 217. A parish can in no case, under the general issue, shew by evidence that another district or person is bound to repair a road within it, except in the case of their being relieved from their common law liability by Act of Parliament. R. v. St. George, Hanover Square, 3 Camp. 222. Evidence. To prove this plea, (supposing the custom to be traversed upon the part of the prosecution,) the defendants must prove: 1. The custom, as alleged, by old witnesses, or other evidence; and 2. That the part of the road described in the indictment, is within the township of L. Plea, that a particular person is bound to repair, ratione tenuræ. Berkshire, Michaelmas Sessions, 1836. The King v. The Inhabitants of the Parish of . And A. B. and C. D., two of the inhabitants of the said parish of by E. F. their attorney, for themselves and the rest of the inhabitants of the said parish (except one G. H.,) come into Court here, and having heard the said indictment read, say, that our Lord the King ought not further to prosecute the said indictment against the inhabitants of the said parish (except the said G. H.:) because they say that, as to the said part of the said highway in the said indictment described to be ruinous, miry, deep, broken and in great decay, the said G. H., by reason of his tenure of certain lands and tenements called lying and being in the said parish, ought to repair and amend the said part of the said highway in the said indictment so described to be ruinous, miry, deep, broken and in great decay as aforesaid, when and so often as there should be occasion, [as the said G. H, and all those who held the said lands and tenements, for the time being, from time whereof the memory of man is not to the contrary, hitherto were used and accustomed and of right ought to do, and the said G. H. still of right ought to do:] And this the said A. B. and C. D. are ready to verify; wherefore they pray judgment, and that they and the rest of the inhabitants of the said parish of (except the said G. H.) by the Court here may be dismissed and discharged from the said premises in the said indictment above specified. A plea that a body politic or corporate, spiritual or temporal, is bound to repair, may state merely a prescription, without stating a consideration, as in this plea. See R. v. Ecclesfield, ante, p. 221, 222. The matter of this plea must be pleaded specially; it cannot be given in evidence under the plea of not guilty. 1 Hawk. c. 76, s. 9. and see R. v. St. George, Hanover Square, ante, p. 222. Evidence. If the liability of G. H. to repair ratione tenure, be put in issue by the replication, the defendants must prove it. If it be proved that he, or those who occupied the same lands before him, have always repaired the way in question, this will be good evidence to support the plea. See R. v. Skinner, 5 Esp. 219. The indictment must be against the occupier of the lands, not against the reversioner. One mode by which the occupier of land may become liable to repair a highway adjoining it, is by inclosure. Where a road is open to the land on either side of it, if the road become impassable or incommodious, the public have a right to go upon the adjacent land. 1 Ro. Abr. 390. A. pl. 1. B. pl. 1. Absor v. French, 2 Show. 28. Taylor v. Whichead, Doug. 749. An inclosure of the land from the highway, deprives the public of this right; and for this reason it has been holden, that if the owner of lands not inclosed, next adjoining to a highway, incloses his lands on both sides, he is bound to make a perfect good way, as long as the inclosure lasts. 1 Ro. Abr. 390. B. pl. 1. Duncombe's Case, Cro. Car. 366. Henn's Case, W. Jon. 296. R. v. Flecknow, 1 Burr. 465. 1 Hawk. c. 67, s. 6. So, if he inclose the land on one side, the other side being before inclosed by an ancient fence, he ought to repair the whole way; but if there be no such ancient inclosure on the other side, he is in that case bound to repair only half the way. R. v. Sloughton, 1 Sid. 464. 1 Hawk. c. 76, s. 7. But where a highway is altered, changed or inclosed, by virtue of a writ of ad quod damnum, or a statute, or other legal course, the owner of the land is not bound to repair the new road, unless, in the case of a writ of ad quod damnum, the jury impose such a condition upon him, or unless the new road lies in another parish. Ex parte Vennor, 3 Atk. 771, 772. R. v. Flecknow, 1 Burr. 465. So, where a highway is inclosed under the authority of an Inclosure Act, the person who incloses his land from a highway, is not thereby bound to repair the highway. R. v. Flecknow, 1 Burr. 465. 2 Saund. 160. n. 12. As to the mode of pleading this liability by reason of inclosure, it may either be done specially, or in the above form, omitting the statement of the prescription between the brackets. 25. Indictment against a District of a Parish, or a Corporation bound to Repair by Prescription, or an Individual bound ratione tenure, for not Repairing a Highway. This indictment may be in the form, ante, except that instead of the concluding statement of the liability of the parish, you state the liability of the township, &c. or corporation, as in the plea, ante, p. 221, or the liability ratione tenure, as in the plea, ante, p. 223. Where an extra parochial hamlet was indicted for not repairing a highway within it, the indictment was holden bad, because it did not allege that the inhabitants had immemorially repaired the way. R. v. Kingsmoor, 2 B. & C. 190. and see R. v. Penderryn, 2 T. R. 513. Under the plea of not guilty, the prosecutor must prove the custom, prescription, or liability ratione tenure, as directed ante, p. 223, 224. The rest of the evidence may be collected from the evidence against a parish, ante, p. 215. Upon the trial of an indictment for not repairing a highway, which it was alleged the defendant was bound to repair ratione tenure, it was holden that an award, made under a submission by a former tenant for years of the premises, could not be received in evidence:-not as an adjudication, for the tenant had no authority to bind the rights of his landlord ;-nor as evidence of reputation, being post litem motam. R. v. Cotton, 3 Camp. 444. As the defendants in these cases, respectively, are not bound of common right to repair, as a parish is, it is not necessary for them in any case to plead specially. R. v. Ireton, Comb. 396. R. v. Norwich, 1 Str. 183, 184. But under the general issue, they may not only give evidence in disproof of the custom, prescription, or liability ratione tenure, or of the road being in the township, &c., or out of repair, but they may even shew that another is bound to repair the highway in question, ratione tenure, or by reason of inclosure, or the like. See R. v. Hatfield, 4 B. & Ald. 75. By the recent Highway Act, 5 & 6 W. 4, c. 50, s. 62, a highway, which any body politic or corporate, or any individual ratione tenure or otherwise, is bound to repair, may, with the consent of the inhabitants of the parish in which it is situate, in vestry assembled, be made a parish highway by order of the justices at a special sessions for the highways, upon the application either of the party liable to repair, or of the surveyor; and the order shall fix the proportion of the expenses of repairing the highway, to be paid annually by the party, or a sum certain in satisfaction of all future claims. Presentments, for not Repairing Highways. Formerly, any justice of the peace might present a highway, out of repair. The presentment in substance was the same as an indictment, was engrossed on parchment, and handed in open sessions by the justice to the clerk of the peace, to be filed, &c. And the parish, &c. thereby charged with the liability to repair, pleaded to it, and all subsequent proceedings to trial and judgment were had upon it, in the same manner precisely as upon an indictment. But now, by stat. 5 & 6 W. 4, c. 50, s. 99, it shall no longer be lawful" to take or commence any legal proceedings by Presentment, against the inhabitants of any parish, or other person, on account of any highway or turnpike road being out of repair." |