case of a new road, the same liability on the parish exists, 2 B. & A. 183. And if trustees ought to repair, the parish must resort to them, as pointed out under the 13 Geo. 3. c. 84. s. 33. id. No agreement can exonerate the parish from the common law liability to repair; and a count in an indictment: against the corporation of Liverpool, stating that they were liable to repair a highway by virtue of a certain agreement with the owners of the houses alongside of it, was held to be bad, on the ground that the inhabitants of the parish, who are primâ facie bound to the repair of all highways within their boundaries, cannot be discharged from such liability, by any agreement with others, 3 East, 88. As the duty is thrown upon the whole parish, no indictment can be sustained againstany particular part of it, any more than against a private in·dividual, without shewing the particular grounds by which the liability is shifted, 2 T. R. 513. So though it was once decided, contrary to the older authorities, that where a parish lies within two counties, the inhabitants of that part alone in which the decay was charged, should be indicted, 4 Burr. 2507. it is now settled, that this circumstance will make no difference, and the whole must be charged jointly, as if it lay within the same county, 5 T. R. 498; and on the other hand, where the way out of repair runs through several parishes, a joint indictment against such parishes, is not sustainable, 6 Wentw. 409, in notes. As it frequently happens that the boundary of parishes is in the middle of a highway, so that both are liable to repair part; in order to prevent the difficulty which might arise from this circumstance, the 34 Geo. 3. c. 60, enables two justices to settle and mark the boundaries, and their division will compel both parishes to repair the portions they allot to each of them. Where the parochial situation of the road is altered by an award of commissioners under an inclosure act, but the parish to which it originally belonged, continues to repair it for a time, and then suffers it to go to decay, the inhabitants must, in order to exonerate themselves, prove that the proper notices were given required by the statute, 2 M. & S. 558. The. mode by which each parish is enabled to keep its roads in repair, is set forth in the 13 Geo. 3. c. 78, and 13 Geo. 3. c. 84, which repeal all the former statutes, which before were both complicated and numerous.

But though the parish is thus primâ facie liable to repair, the burthen may be thrown on others, by the operation of

various causes; and it is said, that even by common right, the occupiers of the lands adjoining a highway, are bound to cleanse the ditches by which their lands are protected, Hawk. b. 1. c. 76. s. 5. Bac. Abr. Highways, E; and it is questionable, whether the inhabitants of an extra-parochial hamlet, not forming part of a larger district (the inhabitants of which are bound to repair), are not liable at common law, 2 B. & C. 190. Individuals or corporations may become bound to repair particular ways by inclosure or prescription. The liability consequent on inclosure, arises from the right of the public, when a highway is obstructed, to go on the lands adjacent, whether they are cultivated or barren, 2 Saund. 161, n. 12. Dougl. 749. And therefore if a person, who is the proprietor of open lands adjoining a highway, fences them in [568] on both sides of the road, he will be bound to keep it in sufficient repair; because before such inclosure, when the road was in decay, passengers could avoid the inconvenience by taking a circuit through his grounds, which opportunity is now prevented, Cro. Car. 366. Hawk. b. 1. c. 76. s. 6. And on this ground it is, that it will not discharge him from making the road sufficiently passable, that he keeps it in as good repair as it was previous to the inclosure, Hawk. b. 1. c. 76. s. 6. On this ground, too, if a proprietor inclose land on one side of the road only, and there is an ancient fence on the other, he will be compelled to repair the whole of the highway lying between them; but if there is no inclosure on the other side, of long standing, he will only be liable to amend half of it, and will share the responsibility with the owner of the opposite lands, 1 Sid. 464. Hawk. b. 1. c. 76. s. 7. 2 Saund. by Wis. 161, n. 12. And if the road be insufficient, any of the king's subjects may justify breaking down the inclosure, and passing, as before, on the adjoining land, 3 Salk. But the party liable may discharge himself from all Jiability, by throwing down the inclosure, by which it was thrown upon him, Hawk. b. 1. c. 76. s. 6. 2 Saund. 160, 161. Ambl. 295. And when the lands are inclosed by force of a legal warrant, as under an act of parliament, no duty is thrown on the owner, 1 Burr. 461. And when the course of a road is changed by a writ of ad quod damnum, the inhabitants, if it pass through the same parish, are bound to repair the new road, and not the party through whose lands it may be made, unless the jury impose such condition upon him, see 2 Saund. 161, note 12. 1 Burr. 465; because such inhabitants were

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liable to repair the old way, and no additional burthen is laid on them by the change; but if the road be diverted into a different parish, the land-owner must repair, because the inhabitants of the district into which it is turned, were relieved from no liability, by shutting up the old road; and the legislature will not impose a charge upon them, for which they receive no recompence, 3 Atk. 772. 1 Burr. 465. Hawk. b. 1. c. 76. s. 7.

The other cause of shifting the duty of amending roads from the parish to others, is prescription. A corporation aggregate may be thus bound by force merely of ancient custom, without shewing any duty as connected with the reception of profits, or the tenure of lands; because such a body, in contemplation of law, never dies, and if it once exists, its liability always continues, Hawk. b. 1. c. 76. s. 8. The inhabitants of a division of a parish may also, by this means, be liable to repair, without any peculiar benefit, 2 Saund. 158, d. n. 9. But an individual cannot be bound by the continual practice [569] of his ancestors, unless he receive some toll or profit, or holds lands under such a tenure, 13 Co. 33. Hawk. b. 1. c. 76. s. 8. 2 Saund. 158, d. n. 9. 1 M. & S. 435. And when the origin of a way can be shewn, the prescription to repair it is necessarily destroyed, 2 Stra. 909. In order to subject any person thus liable to repair to a prosecution, the road must be incommodious, not from the season, or its own narrowness, but from the want of sufficient reparation, 2 Ld. Raym. 1169.

Modes of prosecution,

Modes of Prosecution.-There are three ways by which parties or districts liable to repair highways may be prosecuted for suffering them to decay; by indictment, information, and the presentment of a judge or justice of the peace. Of these, indictment is now the more usual course of proceeding. An information, may, indeed, be granted, in the discretion of the King's Bench, on such a cause, Sir Tho. Raym. 384. Hawk. b. 1. c. 78. s. 24. Ante, vol. i. 851. But they will not give leave to file it when the way is not much used, and there appears to be another road as convenient for the public in sufficient repair. Indeed, they never allow it unless in cases of great importance, or where the grand jury have been guilty of gross misbehaviour in refusing to find the bill, ante, vol. i. 851; because the fine on conviction on such a proceeding, cannot be applied to the repair of the nuisance, which is always the case

when the party is indicted, Bac. Abr. Highways, H. The presentment was formerly regulated by 5 Eliz. c. 13. s. 9. But now this kind of proceeding depends entirely on 13 Geo. 3. c. 78. s. 24, which repeals all previous provisions. That statute empowers all justices of assize of the counties palatine of great sessions in Wales, and of the peace, on their own view, or upon information on oath by any surveyor of the highways, to make presentment at their respective assizes or great sessions, of any public road out of repair within the limits over which the power of the court may extend. A presentment thus made has exactly the same effect as the finding of a grand jury; and it has been held, that the power given by the 16th section of the 13th Geo. 3. c. 78, to two justices, to order any highways to be widened, extends to roads repairable, ratione tenure, Cowp. 648. But neither this proceeding nor that of indictment can be instituted before any other tribunal than that in the jurisdiction of which they arise. And no certiorari can be allowed to remove them from thence before traverse and judgment, unless the duty to repair be denied: as, however, this clause makes no mention of the crown, and as the traverse can proceed from the other party, it is holden that the prosecutor, though he merely uses the king's name, is not affected by this regulation; but may remove the proceedings whenever he thinks fit; and that it was the delay of the defendants only against which the statute was directed, Cowp. 78. It was formerly doubted whether, under the 5th Eliz. c. 13. s. 9, the fact of the nuisance could be traversed, and it was thought that, upon presentment, nothing but the obligation to repair could be disputed, though these ideas seem always to have been unfounded, 2 Saund. 158, n. 3. However, by 13 Geo. 3. c. 78. s. 24, this matter is expressly settled, and every defence which could be relied on upon an indictment will be equally available when the nuisance is presented, by a judge or justice, ante, 10, 11, in notes.

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Form of Indictment and Presentment.-1st. Against the pa- Indictment and rish. An indictment against a parish for not repairing, must presentment. show three things: that the road in question is a highway; that it is situate within the parish; and that it is out of repair. With respect to the description of the road, though it is usual to state that "from time whereof the memory of man is not to the contrary," or "from time immemorial, there was and yet is a certain common and ancient king's highway," it is

now settled

that this averment of its antiquity is unnecessary, and that the term "highway" will suffice, 3 T. R. 265. 2 Saund. 158, n.4; and it has been held, that if the nuisance be laid to all the king's subjects, it is necessarily implied that the way wherein it is, is a common way for public benefit, 1 Vent. 208. Say. 168. An averment that the locus was a common and public highway for, &c. to pass along at pleasure, paying a certain toll, is not inconsistent or contradictory, particularly if not said to be immemorial; for it may be a highway created by act of parliament, 8 Price, 535. It has been said that it is not requisite to state whether it is for the use of carriages, horses, or foot passengers, but that if it be laid to be a common highway, the rest will be intended, Rep. temp. Hardw. 315, 316. 2 Saund. 158, n. 8. Trem. 201. 205. Cro. Car. 266. 1 Salk. 359; but as so general a description would be improper if the road be not an highway for all purposes, it is certainly prudent to insert the more particular description, 8 East, 4. And if the highway be public only at particular times, the same must be described accordingly, 4 Campb. 189, and see post, 592. If the description be too indefinite, being equally applicable to several highways, advantage should be taken of it by plea in abatement, and the description given, if true in fact, cannot be objected to at the trial, under the general issue, 1 Stark. Rẹp. 357. It is not necessary, in any case, to state the termini of the way in question, for highways have no certain boundaries, 2 Sess. Cas. 1 Hen. Bla. 351. Andr. 145. 10 Mod. 382. Latch, 183. Palm. 382. 2 Rol. Rep. 412. 1 Stra. 44. 2 Saund. 158, n. (6). And it has been expressly decided, that in pleading a public highway, it is not necessary to state the places from and to which the way led, though it is otherwise in the case of a private way. 1 Hen. Bla. 351. 2 Stark. Rep. 695, n. 1. If the termini be stated, they must be proved, and care must be taken that the description is neither so framed as to exclude the parish liable, or to seem repugnant to itself; for if the highway be decribed as between two places, both of them are necessarily excluded, 2 Saund. 158, n. (6). And the words from and unto have both of them an exclusive meaning, 2 Rol. Abr. 81. 1 Leach, 528. 1 Burr. $76. But the place in question must be shown to lie within the parish which is indicted, Cowp. 111. 2 Saund. 158, n. (5). And, therefore, as

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the words from and unto are exclusive, if the allegation be that the road leads from or to the parish, though the part out of repair is charged as situate within it, the subsequent averment