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Lord ELLENBOROUGH, C. J. Nothing is said as

1806.

* versus *** the Inhabitants

of the West Riding of

to the highways; but it is said in respect to the The KING bridges. This statute is a regulation of what was bes fore undefined. I do not see that it gives the justices a discretion. If they have any discretion, it may be only to order 50 feet or more or less to be repaired, 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. But do you mean to say that if there are 300 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 ?"

LAMBE. "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 that the court will not discharge him, until he finds some one who is liable to the repair of the highway at the end.”

Lord ELLENBOROUGH, Č. 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."

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1806.

The KINO

Di. A VETBUS

of the West

Riding of

YORK.

LAMBE. "Then it comes to the question whether these two divisions being found to have repaired, the county ought not to be discharged, and the stat. 3d the Inhabitants Anne contains orders for bridges and highways. The act says, that they shall not exceed these limits of 300 feet, but not that they shall go to such limits, and therefore the proceeding ought to be before the justi ces to say how much shall be repaired. Section 8, shew that the act is not to affect bridges or highways which others were liable to repair. As to the statute 12 Geo. II. c. 29; that gives an easy remedy for the recovery of rates in cases where the county is 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 not 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's Bench, the justices in eyre, &c. 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 says that the liability is on the whole 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 in

posed upon the county, at the common law. In the case of Rerv. Norwich, as to three bridges in the corporation of Norwich, it was held that the evidence that others were bound to repair, could not be given upon not guilty; and the authority of the cases is very strong, that the liability does not arise out of the statute."

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Lord ELLENBOROUGH, C. J. 66 Supposing the ob ligation 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 of the common law; and that the 300 yards at the end of the bridge are on the same footing as the bridge; and inasinuch 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, inust have been clearly liable to repair by the same persons who repaired the bridge. The only question must be, whether inasmuch as the parish has been liable to repair up to the making of the bridge they are now lia 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 the end of all public bridges for 300 yards is to be repaired in like manner as the bridge. It is however fit to consider, as a point made in this case whether the county ought to have pleaded the speci matter or not,"

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And now in this term, the argument being in Easter term last, the judgment of the court was delivered shortly to the following effect, by

Lord ELLENBOROUGH, C. J. after stating the plead

1 Strange, 177.

1806.

The KING

versus

YORK.

ings and the special verdict. "The single question an these pleadings is whether the highway, joining to a' the Inhabitants common bridge at each end thereof for 300 feet, is of of the West common right to be repaired by the inhabitants of the Riding of county at large; in other words, whether a different rule of law prevails, with respect 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, fall on the inhabitants of the county, and, that the high way for the 300 feet 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 West 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 at each 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 faYours this construction; all its clauses coupling the bridge with the highway at the end of the bridge. And so it seems was the law in the time of Edward III. For in 43 Ass. and Brooke's Abridgment, presentment of courts, pl. 22. It was presented in the king's bench that the abbot of T. ought to repair the bridge

* 5 Burr. 259. See also Rex v. Cumberland, 6 T. Rep. 196.

at Chesterton, in the county of Lancaster: He plead

1806

versus

the Inhabitants

of the West Riding of York.

ed that he had before been indicted, and pleaded that The KING he was not bound to repair, except two arches, and that issue was found for the, abbot; and the record was read; whereupon the jury, &c. do say, that the abbot of T. is not bound to repair, except two arches, and not the ends of the bridge. But the court held, that they would intend that he must repair the ends of the bridge to the highway at the other side, and that he was bound to pursue the course of the water, and repair the ends of the bridge and the highway without leave of him to whom the land belongs. It was found that, without doing so, it would be of no avail, and it does not discharge him to say, that he is bound only to repair part; for, if he is to repair the bridge, he must, at common law, be bound to complete it; therefore says' Knyvet see whether you can say any thing else.' From this case it appears that in those days it was considered to belong, prima fucie, to the party bound to repair the bridge, to repair also the ends of the bridge. This statute then defines as to the 300 yards, what might otherwise remain indefinite as to the end of the bridges, and does not in other respects alter the common law." His lordship then concluded "therefore, we are of opinion in the lax state of this record, judgment must pass for the crown, and the highway be repaired by the county."

JUDGMENT for the CROWN.

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