1806. the Inhabitants bridges. This statute directs what shall be done with The KING respect to the repair of bridges; namely, that, in every such case there mentioned, they shall be repaired by the inhabitants at large, and gives the justices of the peace in particular counties, particular powers for the repairs of bridges, and also powers to tax the several divisions of the county for that purpose.* of the West Riding of administrators, and the executors and administrators of them, and every of them, from time to time shall make a true declaration and account to the justices of peace of the shire, riding, city, or town corporate, wherein they shall be appointed collectors or surveyors, or to four of the same justices, whereof one to be of the quorum, of the receipts, payments and expences of the said sums of money. And by 22 H. VIII. c. 5. s. S, that the said justices, &c. may allow such reasonable costs and charges, to the said surveyors and collectors as by their discretion shall be thought convenient. And by 22 11. VIII. c. 5 s. 9, that such part and portion of the highways in every part of this realm, as well within franchise as without, as lie next adjoin ing, to any ends of any bridges within this realm, distant from any of the said ends by the space of 300 feet be made, repaired and amended, as often as need shall require, and that the justices of peace in every shire of this realm, franchise, city or borough, or four of them at the least, whereof one to be of the quorum, within the limits of their commissions and authorities, may enquire, hear, and determine in their general sessions, all manner of annoyances of and in such highways so being and lying next adjoining to any ends of bridges within this realm, distant from any one of the ends of such bridges 300 feet; and to do in every thing concerning the making, repairing, and amending such highways, &c. in as large and ample manner as they might and may do to and for the making, repairing and amending of bridges, by virtue of the said act. LORD ELLEN BOROUGH, C. J." How does this case come before us for judgment " HOLROYD. “I had supposed, that the judgment should If it 1806. versus the Inhabitants of the West Riding of YORK. From this provision in the statute, that the justices shall tax all the inhabitants of the county, it seems, The KING that the legislature acts on the idea, that the repairs of this part of the road were to be done by those who were to be taxed, namely, the county at large. If it had only been said, that the highways should be repaired as need be, it would not have followed that they would have been liable; but it goes on to give them power to do "in every thing concerning the making, repairing, and amending such highways, &c. in as large and ample manner as they might and may do, to and for making, amending, and repairing of bridges by the said act:" then it follows, that they may tax the divisions of the counties; but that would be idle unless they were liable to the repair. Upon the statute it has been held, with respect to bridges, that it is only declaratory of the common law, and that the course of proceeding prescribed by the act, is not necessary to be pursued; but that an information, as at common law will lie.* It is to be observed, that here the road has been altered, widened, and heightened by the mears: but what has been done by the mears,will not take the case out of the general question; for the indictment lies, of common right, against the whole riding, and if the riding means to say, that the mears are liable, they should not have pleaded not guilty, but should have pleaded a special plea, that by prescription, there is an obligation on the mear to do it. This they have not done, and, on the plea of not guilty, the prosecutors had only to shew; that there is a road as' described, which is out of repair. The only question then before the be given in the court below; I enquired, and was informed, that the practice was otherwise; that on special verdicts. they certify to this court, which is to give judgment." #2 Instit. 701: 1806. The KING versus the Inhabitants of the West Riding of YORK. court is, whether they are guilty of the charge, and this evidence ought not to have been received; for the defence could only be that the bridge and the road were not as described; or that the road was not out of repair. This is the case with a parish so pleading to an indictment for not repairing a road : liability ratione tenure cannot be given in evidence on the general issue; so here the evidence stated should either not have been given, or cannot affect the real question upon the record. Upon the general ques sion, whether at common law or by the statute, the county is liable to the repair, it will appear that, both upon the reason of the thing and the authorities, this prosecution is well founded. First, the reason given by Lord Coke, 2 Instit. 705, for the county being liable to repair the bridges is, that the parish is more burthened by reason of a bridge as to its highways; for it brings a greater resort of persons thither, and a bridge affords a communication for all people to the county on the other side, who, would not otherwise be enabled to come there." He referred also to Dalton's Justice. Lord ELLENBOROUGH, C. J. "Does he cite any authority as to that position; does he refer to any record?" HOLROYD." As to some of his positions he cites no authority, he refers to no record. It seems to be a statement of what has been mooted." Lord ELLENBOROUGH, C. J. " Probably it was a question reserved at the assizes." HOLROYD." In 43 and 37 Bro. Abr. Presentments in Courts, it is stated, that it was presented, that the abbot of T. ought to repair the bridge of T.; who pleads that, heretofore he traversed a like presentment, when it was found that he ought only to make two arches in the middle; and per Knivet, it is not a bridge without the residue, and it is not stated who is to make the rest, therefore the defendant shall make the whole if he can say no more, and he may make the bridge without licence from those who have lands adjoining. I cite this to shew, that where the obliga, tion is to repair a bridge, the repair of the highways at the end is consequential, You are bound to repair a part, and therefore, not being wholly exempt nor having shewn who is bound to repair the residue, you are bound to repair the whole. Such as are chargeable to repair a bridge, may use adjacent land; and where one is bound to repair a bridge, he is bound to repair the highways at the end;' Dalton's Justice, 46, cites Crompton, 186, b. The statute 1 Anne, c. 18, recites the statute 22 H. VIII. and proceeds upon the ground of that statute, and takes it for granted that the county is bound to repair. Money is directed to be laid out for the repair of bridges, and the highways at the ends of bridges, and there is a penalty on the constable for neglecting to assess the counties to the repair of bridges, and the highway at the end thereof. This is a legislative exposition of the statute 22 H. VIII. and many of its provisions, are useless, unless the county is liable to the repair of the highways,at the extreme ends, as well as the bridges." LAMBE, contrà. First, the county is not liable at common law to repair highways at the ends of bridges. Secondly, it being found that other persons are liable by prescription to repair, they are not bound, in the case stated by this special verdict. It is too late now to say that the riding or county are not liable to repair bridges of public utility; but there is a great difference between the repair of bridges and of highways. As to bridges, the county is bound by the common law; but it is not so as to highways; faz 1806. The KING versus the Inhabitants of the West Riding of YORK. 1806. The KING versus the Inhabitants of the West Riding of YORK. 7 the parish and not the county is bound to repair them, at common law. As to the objection, therefore, that this evidence cannot be given upon the general issue, it may be admitted that it would be so, if the county were liable at common law; but if not so liable, then it is incumbent on the prosecutor to shew, that there is some specific ground upon which they ought to be charged, and they, the county, may shew the contrary, by evidence of usage upon the general issue. The sta❤ tute 22 H. VIII. gives the justices power to hear and determine against such as owen to be bound, which shews that it did not mean to charge the county but where others were not liable: and some discretion was necessary to be invested in the justices, in order to enable them to lay out the immense sums of money which they have done under this act. Thus, where it cannot be known who ought to repair, the county is to repair, and the justices are to assess them.* Then the 9th section, which gives the justices power as to the 300 feet at the end of the bridge, is not intended to extend the obligation upon any one, to repair or create any where it did not antecedently exist, but only to say that the justices shall direct how it shall be repaired; which answers sufficiently the argument that the provisions would be useless unless the riding is liable. It does not say that the county at large shall be liable to repair, but leaves it to the discretion of the justices. It is just as reasonable that the county should repair the whole highway as the 300 feet. In every instance put in this statute, the material point to be inquired into is, whether any other person is liable; for in no other case are they, the county, to be liable. By this act the justices have a discretion as to how much shall be repaired, and until that discretion is once exercised, the county is not liable." |