« ForrigeFortsett »
Lord Ellenborough, C. J. "Nothing is said, as teat:
to the highways; but it is said in respect to the The Kl[l#
bridges. This statute is a regulation of what was be^ e j^bitmnu
fore undefined. I do not see that it gives the justices 0f the Wwt a discretion. If they have any discretion, it maybe only to order 60 feet or more or less to be repaired, *. i that being the only part out of repair."
Lawrence, J. "There might have been a question how much of the highway belonged to the bridges, and how much not; and does the statute do any thing more than define that? It is, as you would argue, a discretion in the magistrates to say, from time to time, how much ought to be repaired, and till they have said what they ought to repair, the inhabitants are not bound to repair. $ut do you mean to say that if there are S00 feet at the end of the bridge out of repair, the magistrates are not bound to compel the county to repair. What makes the county liable? The statute. Then must they not be indicted until the magistrates have made an order? Did you ever hear of a mandamus to the magistrates to exercise their discretion on this subject r
Lam He. "The case of the Abbot of T., in 43 Ass., is perfectly unintelligible. There he pleads specially, as we are required by the prosecutors in this case, and yet they overrule his plea; and it is only the opinion of one judge, who says merely thai the court will not discharge him, until he finds some one who i* liable to the repair of the highway at the end."
Lord Ellrnboiiough, C. J. "The case may be liable to some objection, perhaps, as to some point of form, which it is difficult to ascertain now; but it is clear as to the general apprehension of the law, at that time, upon the subject of the repair of bridges.''
NO. XXXV. N, s, 9 Q
i**?. - Xambb. "THen it cornesto the question wTietfcef ThTiTiwa these fwo division's being found to haVe repaired, this .•• "t*nw connty ought riot to be discharged, land the Stat. 3d
tbTM w«w" ^nne conta'ns orders for bridges and highways. The act RidmSof says, that they shall not exceed these limits of 300
YoE*- feet, but not that they shall go to such limits, and therefore the proceeding ought to be before the justices to say how much shall be repaired. Section 8, •hew that the act is not to affect bridges or highways which others were liable to repair. As to the. statute 12 Geo. II. c. Sy; that gives an easy remedy for the recovery of rates in cases where the countyis liable. The words are ' usually or of right ought to repair,' and though bridges and highways are put upon the same footing, still the act applies only to cases where the county and none other are liable."
Holroyd, in reply. "The objection taken to the proceedings on the part of the crown seems to rest upon these points, that although the county is liable under the statute, yet not being liable at common law, the present remedy by indictment does hot lie. But it is clear by '2 Inst. 701, that there has been always a remedy by indictment, independently of the statute, and that you may proceed without pursuing the remedy in the statute. Lord Coke says expressly, that the presentment may be before the justices of the King* Jiench, the justices in eyre, 8cc. It is contended that the whole of this act of parliament applies, only where no other person is liable, that at common law the county is not liable, and that therefore the liability of other persons need not be pleaded. But Lord Coke siiys that the liability is on tiie w hole county, with respect to bridges, and that if other persons are liable, they must plead it, and the plea of not guilty 'lets them in only to a defence similar to that in case of highways in parishes. .All the statutes proceed upon the understanding, that the repair of bridges is im
posed apon the county, at the common law^ In the i»o<j,
case of Rexy. Norwich,,* to three bridges in the cor,- TEt Aikp
poratton of Norwith, il was held that the, evidence
that others were bound to rep.ur, could not be j^iven 'ft v:, ViV«'
upon not guilty; and the authority of 'the case* n ^-'"j*^'
^ery strong, tha,t the liability does not arise but of t.he • u'"
Lord Ellenbokough, C. J. "Supposing the obligation were first created by the statute, would it not be then also necessary to plead it? It is laid down by Lord Coke that the statute is only in affirmance ot the common law; and that the aOO yards at the end of the bridge areon the same footing as the bridge ; and inasmuch as part of the highway must be put out of repair by the repair of the bridge, this statute defines only as to a certain limit, what though before indefinite, must have been clearly liable to repair by the same persons who repaired the bridge. The only question mast be, whether inasmuch as the parish has been liable to repair up to the making of the bridge they are now I in* ble or not. The moment the bridge is dedicated to the public use, it becomes a public bridge, and attracts all the consequences of an ancient bridge Then, the road at Hie end of all public bridges for 300 yards is to he repaired in like manner as the bridge. It is however fit to consider, as a point made in this cusr whether the county ought to have pleaded the special natter Qr DOl«"'
Cuf. adv. vult.
And now in this term, the argument being in Rafter term last, the judgment of the court was delivered shortly to the following effect, by i.
Lord Ellen Bo Kough; C. J. after stating the plead
180«. ingS an(j the special verdict. "The single question on TheKiso these pleadings is whether the highway, joining to a it T"?'!?. . common.bridge at each end thereof for 300 feet, is of
the Inhabitwtl ° .' . i i ■ e »
of the Wen common right to be repaired by the inhabitants or tue Bly'oKi.f county at large; in other words, whether a different rule of law prevails, with Tespect to the 300, feet of the road, at each end of the bridge, from that which prevails, with respect to the bridge itself? It is, by the form of the pleadings, admitted on the part of the defendants, that the, repair of the bridge does, at common law, full on the inhabitants of the county, and, that t.he highway for the 300 feel is subject to the same rule, inasmuch as they have pleaded not guilty, and have not stated that any persons are liable. That, at common law, the county is liable to the repair of a public bridge is clear, and, after the % case of the King v. the Wat Riding of Yorkshire,* they cannot say, that they ought not to be charged for the bridge itself. But they have endeavoured to separate the highway from the bridge itself. By the statutes however, the highway for the limits of 300 feet atench end of bridges, is dependent on the bridge, as to its dimensions, and the repair of it is to be ordered in like manner. But it is said that there is no reason to construe this statute as declaratory of the common law in this respect; and that, at least, it introduces a new law with respect to the road at the ends of bridges. But there is not any thing in the statute which faTours this construction; all its clauses coupling the bridge with the highway at the end of the bridge. And so it seem* was the law in the time of h.d«ard UL Forin4:J das. and Riookfs Abridgment, presentment of courts, p'. 22. H was presented in the king's bench that the abbot of T. ought to repair the bridge
ed that he had before been indicted, and pleaded that The Kino he was not bouuit to repair, except two arches, and the
was read; whereupon the jury, &c. do say, that the