will not aid the defect, and after a verdict of guilty, judgment will be arrested, 1 Leach, 528. 5 T. R. 513. 4 Burr. 2090. Hawk. b. 1. c. 79. s. 86. 2 Saund. 158, n. (6); so a material variance from the description in the indictment will be fatal; thus an averment that the highway leads from A. to C. will not be satisfied by evidence of a road leading from A. to B., and communicating by means of a cross road, 6 Esp. 136. But an indictment describing the way as leading from a hamlet in the parish indicted is good, because the road may well pass through other parts of the same district, 4 Burr. 2090. And to describe the road as leading from a hamlet is sufficient, though it was formerly thought it must be shown that it led from one town to another, id. ibid.

The indictment must also expressly show that the way is in bad repair, and an allegation that it is narrow and muddy will not suffice, 2 Ld. Raym. 1169, see Andr. 234. It seems doubtful how far it is necessary to state the extent of the nuisance, by showing how many feet in length and in breadth are out of repair; as some authorities assert that it is requisite, Cro. Jac. 324. 2 Rol. Abr. 80, 81. Rep. temp. Hardw. 105, 106. S16. Hawk. b. 1. c. 76. s. 88, and others are expressly against it, Say. 167. 301. 98. But as the reason assigned for its insertion is, that the court may be able to judge with certainty of the fine which they ought to impose, and as they do not at present estimate the sentence from the formal statement on the record, it seems to be the better opinion that it might be omitted; 2 Saund. 158, n. (7), though it is certainly most prudent to introduce it, especially as the allegation as to the extent need not be proved precisely as alleged. Where the road lies in two parishes, an indictment against one of them for not repairing one side of the road, must state that each parish was liable to repair ad medium filum via, and not merely that a certain part of the way of a particular breadth was out of repair, and that the parties indicted were bound to amend it, Peake's Rep. 219. 6 Wentw. 409, in notes.

When the indictment is against an individual, or a township, or class of persons not of common right bound to repair, the mode in which the defendant became liable must be stated, 5 Burr. 2700. 2 Saund. 158, n. 9. A subdivision of a parish can only be liable by custom, prescription, or legislative provision, and an indictment against the inhabitants of it must

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show specially the liability of the inhabitants to repair, and that they have repaired, 5 Burr. 2700. 2 T. R. 513. Andr. 256. 5 M. & S. 260, and post, 573, as to pleas; and in a late case where an indictment stated that a certain way was an ancient common highway, and that a certain part, situate in an extra parochial hamlet, was out of repair, and that the inhabitants of the extra parochial hamlet ought to repair it, it was held bad, as it did not allege that the inhabitants of the hamlet were immemorially bound to repair, nor that the hamlet did not form part of a larger district, the inhabitants of which were bound to repair, 2 B. & C. 193. 2 D. & R. 388; and where a party. is indicted for not repairing pavement before his house, his liability to repair must be shown, 2 Ld. Raym. 922. But if an individual be bound to amend a road by reason of holding certain estate's in fee-simple, it is sufficient to aver that he is liable by reason of the tenure of his lands, without adding, "as he and all those who held the said lands for the time being, [ 572 ] from time whereof the memory of man is not to the contrary,

were used to do;" for the prescription is necessarily implied in the estate of inheritance which he possesses, Co. Ent. 358. Keilw. 52, pl. 4. Hawk. b. 1. c. 76. s. 8. But where the duty arises from inhabitancy alone, it is necessary to state the usage, Keilw. 52. 2 Saund. 158, n. 9. And although Styles, 400, seems at first to oppose this proposition, it appears from the construction put on it in 2 Saund. 158, n. 9, to be in reality it its favour; for there the indictment stated that the party was bound to repair by reason of his tenements, and was quashed only because the word tenure was not inserted. And it seems sufficient to state the liability ratione tenure terræ, without adding suc, though it has been thought otherwise; because the court will intend the tenure to be such as will make the defendant chargeable, 2 Saund. 158, n. 9. 1 Ventr. 331. 1 Stra. 187. But the terms ratione tenure should be adhered to, and no others, however similar their import may appear, substituted in their room; for the insertion of ownership and proprietorship was holden insufficient to excuse the omission, 1 M. & S. 435. Styles, 400. Agreeably to the distinction between a duty to repair arising from tenure, and that which results only from inhabitancy, it has been holden, that where the inhabitants of a division of a parish, as a district, township, or hamlet, are indicted for not repairing, it is not sufficient to aver that from time immemorial they ought to repair and amend it, but it ought to be stated that the inha bitants of such district, from time whereof the memory of

man is not to the contrary, have used and been accustomed, and of right ought so to do; because the obligation does not exist at common law, but must arise from custom or prescription, which should be stated on the record, 2 Saund. 158, n. 9. 5 Burr. 2700. 2T. R. 11, see forms of indictment against a district or township, post, 580 to 585. And in general, where a district less than a parish is indicted, it must be expressly shown how the duty arises, 2 T. R. 513. Andr. 276. 2 Saund. 158, n. 9. Upon an indictment against the inhabitants of some other district than a parish, or against an individual, if a prescriptive obligation to repair all public roads within the district, be alleged, if it should appear that there is any road within the township or other division which is not repaired by the township or division, the variance would be fatal, unless the exceptions were specially alleged, 1 Stark. 393. And if the indictment allege a division of the parish into particular districts, and aver a custom for each district to repair its own roads, independent of the rest, if it appear that any one road within the parish was repaired by the parish at large, the variance would be fatal, id.

Plea. If the defendant admits his liability to repair, and that Pleas. the road is out of repair, and does not wish to defend, he must plead guilty, and pay a nominal fine, he cannot move to quash the indictment on an affidavit that the way is in repair, 2 Chit. Rep. 214. The case of highways is almost the only instance in which the merits of a criminal charge cannot always be investigated under the general issue. If there be any variance in the description of the highway, the same may be taken advantage of under the general issue; but if the description be too indefinite, being equally applicable to several highways, advantage should be taken of it by plea in abatement, 1 Stark. Rep. 357. When the obligation to repair is admitted, and the fact of the bad state of the road is aloue disputed, there can, of course, be no other plea than not guilty. But it is where the defence is rested on a denial of the liability to amend, that the question as to the form of pleading arises. When this is the case, it is settled that if the defendants are those, who of common right ought to repair, as the parish at large, they cannot throw the liability from themselves upon any others by pleading the general issue, but must state the liability of the other parties in

a special plea, ante, vol. i. 473, 474. 1 Mod. 112. 12 East, [573] 192. 13 East, 95. Hawk. b. 1. c. 76. s. 9. 1 Ld. Raym. 725.

2 Saund. 159, n. 10. 1T. R. 111. But this rule does not apply where the duty is transferred by a public act of parliament, of which all are supposed to take cognizance, 3 Campb. 222, and see 2 B. & A. 179. And the parish may give in evidence under the general issue that the way is not public, ante, vol. i. 473, 474; and, in order to conduce to that point, may shew that private individuals have been accustomed to repair it, 2 M. & S. 262. And by a special plea, the parish may rebut the primâ facie obligation to repair, and shew that others are liable. Thus where the parties really bound have been already convicted of suffering the same road to be out of repair, the defendants may plead the conviction, setting out the record and averring the identity of the way in respect of which they are indicted, Sir T. Raym. 385. Trem. P. C. 206. Where, on the other hand, the defendants are charged as bound to repair from custom, prescription, or tenure, they may under the general issue negative the duty thus alleged and throw the burthen on the parish, or even on a particular individual or district, Comb. 396. 1 Stra. 181, 2, 3. 2 Saund. 159 b. n. 10. And the reason of this distinction is, that the prosecutor must, in order to support his charge, prove the defendants to be thus chargeable, and therefore they are at liberty to disprove it by opposite evidence, 2 Saund. 158, n. 10. ante, vol. i. 473, 4. When different subdivisions of a parish have immemorially repaired the highways within their respective limits, and the parish at large is indicted, this prescription must be pleaded, because if, on verdict of guilty or default, judgment be given against the parish, the judgment may afterwards be given as evidence of the liability of the whole parish to repair, Peake N. P. 219. See post, 574, as to evidence. But the effect of this presumption may be avoided, if the districts in which the road in bad repair did not lie, can shew that they were not aware of the proceedings, and that the defence was conducted without their knowledge or concurrence; in which case the court will consider the indictment as in reality against that division alone where the nuisance existed, and will permit the other divisions. to plead the prescription to any subsequent prosecution against the parish at large, Dougl. 421. 2 Saund. 159 b. n. 10. The form of the plea in such a case is given, ante, vol. i. 475, 6. as extracted from 2 Saund. 159 b. n. 10. see also post. On this plea issue will be joined, and, if the prescription be proved, the parish will receive an acquittal, 2 Saund. 159 b. n. 10.

Every special plea must not only deny that the defendant is bound to repair, but must state on whom the obligation lies and from whence it arises, 1 Sid. 140. Carth. 213. 2 Saund. 159, n. 10. And even where a special plea is unnecessary, and the whole defence might be given in evidence under the general issue, if the defendant will unnecessarily plead specially that he is not bound to amend, he must go further and state in whom the duty exists, id. ibid. And it will be necessary to traverse the obligation which the indictment alleges, 2 Saund. 159, n. 10. But where a parish is indicted for not repairing a highway which they are bound of common right to preserve, they ought not to traverse their own obligation to repair, but merely shew the liability to be thrown on others; for it is in this case a traverse of a matter of law, and as such, though often inserted, is demurrable, and should always be omitted, 1 Saund. 23, n. 5. 2 Saund. 159, n. 10. sed vide 1 B. & A. 348.

If the special plea throw the burthen of repair on another, as in the case of an indictment, as ante, 571, the reason of such other persons being liable to repair, should be stated, and in a late case, 5 M. & S. 260, where an indictment was brought against a parish for the non-repair of a highway lying within it, a plea that the inhabitants of another parish have repaired, and been used and accustomed to repair, and of right ought to have repaired, was held ill, for the plea ought to have shewn a consideration; but where the inhabitants of a parish pleaded that the inhabitants of a particular district within the parish were bound by prescription to repair all common ways situate within that district, save and except one common highway, within the said district, it was holden that the plea might be supported, though it appeared that the excepted highway was of recent date; and it was also holden, that in such a plea, it was not necessary to state by whom the excepted highway was repairable; and such a plea will be held good, although it does not state any consideration for the liability of the inhabitants of that district, 1 B. & A. 348. 1 Stark. Rep. 393. See also, 5 Co. Rep. 60. 4 B. & A. 623. But this would be otherwise, if the road is not within the parish. R. v. St. Giles, Cambridge, Stark. on Evidence. Appx. to p. 669. 5 M. & S. 260.

If the inhabitants of a parish plead that several included townships are bound by prescription to repair the highways within them, and that part of the highway in question is within

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