Replications and

one of those townships, and the residue within the other, the plea must specify how much lies within one, and how much lies within the other, 11 East, 304.

Replications, &c.-If the plea of the parish improperly conother proceedings clude with a traverse, the replication ought not to take issue upon it, but on the liability of the parties to whom the duty is endeavoured to be transferred, 2 Lev. 112. 1 Saund. 23, n. 5. If the plea conclude to the country, the similiter may be immediately added, "and A. B. who prosecutes for our lord the king, doth the like." See ante, vol. i. 478. The proceedings may, at any time, be stayed on affidavit, and the certificate of two justices that the road in question is now in a good state of repair, and is likely so to continue, 3 Smith, 575. 1 Bla. Rep. 602. 295. But in the case in 2 Chit. Rep. 214, it was decided that the defendant cannot quash the indictment on an affidavit that the way is in repair, but that he ought to plead guilty, and pay a fine. The affidavits must expressly state the probable continuance of the repair, 3 Smith, 575, and the prosecutor's costs must be paid up to the time when the defendant makes his submission, 1 Bla. Rep. 602, ante, vol. i. 691, &c.

Removing indictment by certiorari.

Evidence.

The indictment may be removed by certiorari upon the usual affidavit, see 5 W. & M. c. 11. s. 6. 13 Geo. 3. c. 78. s. 24. But it cannot be so removed (except at the instance of the prosecutor, Cowp. 78), unless the obligation to repair come in question, id. A parish may remove the indictment by this means, though it plead not guilty only, as the obligation to repair may come in question. 3 M. & S. 465.

The facts necessary to be proved, will for the most part appear from the preceding notes. Any material variance in proof will be fatal. As to the evidence in general, see 2 Stark. on Evidence, part iv. 662 to 673, and where much of the following matter will be found collected. Evidence to prove a public highway consists usually in showing that the public have used and enjoyed the road, and then actual occupation of it without interruption for a considerable space of time, affords a strong presumption of a right to use it, and a much shorter period of possession will suffice to indicate a right in the public, than to shew that a private person has a title to the estate of which he is possessed. The particular manner in which it has been

used for some public purpose, as for conveying materials for the repairs of other highways, 1 B. & A. 63, or upon any occasion likely to attract notice, is very material, for such instances of uses would naturally awaken the jealousy and opposition of any private owner who was interested in preventing the acquisition of any right by the public, and consequently, acquiescence affords a stronger presumption of right than that which results from possession and use in ordinary cases. See Stark. on Evidence, part iv. 666. Although the termini of a road afford no conclusive evidence, as to its being a highway, 2 East, 375. 1 Campb. 262; yet the circumstances of its leading from one market town to another, coupled with the user by the public, and without decisive evidence of interruption and permission by a private owner, are conclusive as to the right of the public. 1Vent. 189. Proof of repairs by the parish is strong evidence to shew that it is a public highway, 1 B. & A 63; and evidence of repairs done by a parishioner under an agreement with the parish, that he shall therefore be excused his statute-duty, is virtual evidence of repairs by the parish, 1 B. & A. 63. Evidence of reputation is admissible to prove that the way is public, 1 Vent. 189; but evidence of this nature, arising post litem motam, is not admissible, 3 Campb. 344. So a verdict on an issue taken on a public right of way, and finding it to be such, is afterwards evidence, 2 East, 355; although such issue be taken in an action of trespass between private parties, and offered in evidence to prove the fact between other parties in a civil action, Id. If a prescriptive obligation to repair all public roads within the district, be alleged, proof must be given of such repairs within the division, and in such case, it is unnecessary to prove that the road in question is an ancient road. 1 B. & A. 63. 2T. R. 106; and see 1 Stark. Rep. 393. On an indictment against an individual for not repairing a road which he was bound to do, ratione tenura, the defendant must be proved to be the occupier of the lands, in respect of which the obligation arises, since the law looks to the visible occupier, and not to the owner, 1 Roll. 390, 1. 60; and the prosecutor must, in such case, also prove the prescription to repair by the defendants, or the former occupiers having repaired, &c. See 5 Esp. Rep. 219. 2 Saund. 157, 160, n. 12.

As to what evidence may be adduced under the several issues, &c. see ante, 572, 3. Where a township is bound by pre

scription to repair all the highways within it, it cannot be discharged without shewing by evidence some persons certain who are bound to repair the road; but where a township is charged with a prescriptive obligation to repair a particular road, or an individual is charged ratione tenure, or ratione clausura, it is sufficient to negative the special charge by proof that some others are liable, without fixing upon whom in certain, 4 B. & A. 75. Stark. on Evidence, part iv. 671. An acquittal upon a former indictment, for not repairing a highway, is not conclusive evidence, if it be evidence at all to discharge the defendant; it concludes nothing as to the general liability, but only shews that the defendant was not liable at the particular time laid in the former indictment (sed vidé 1B. & A. 63. 5 M. & S. 322.) but a conviction in such case is conclusive as to the liability, unless fraud can be shown, see Peake C. N. P. 219. 1 B. & A. 63. As against the parish at large the judgment is inconclusive, if the defence was conducted by the inhabitants of a particular district, in which the indicted road lay, without any notice to the rest of the parish, Dougl. 421. 2 Saund. 159, n. So upon an indictment against a parish, consisting of several districts, one of which pleaded a custom for the inhabitants of each of the three districts to repair their own roads independently of each other, which custom was traversed, the prosecutor having upon the trial proved records of conviction of the parish at large, upon not guilty pleaded for not repairing roads lying in the particular districts, the defendants were permitted to adduce evidence that such pleas were pleaded without their knowledge, 2 Campb. 494. Upon an indictment for the non-repairs of a road rationé tenure, it was held that an award made under a submission by a former tenant of the premises could neither be received as an adjudication, the tenant having no authority to bind the rights of his landlord, nor as evidence of reputation having been made post litem motam. S Campb. 444.

The surveyor of the parish is a competent witness for the prosecution, as also for the defendants, 13 Geo. 3. c. 78. s. 69. an inhabitant of the parish (even the prosecutor himself, 1 Stark. 357.) is a competent witness for the prosecution, 13 Geo. 3. c. 78. s. 76. 3 Geo. 4. c. 126. s. 137. though not so for the defendants, 1 B. & A. 66. 15 East, 474. 10 Mod. 150. where upon an indictment for the non-repair of a road which lay in two parishes, the obligation was laid to be ratione tenuræ,

it was held, that the inhabitants within the parishes were not competent witnesses on the part of the prosecution, 4 Mod. 48. A witness is competent to prove a road to be an highway, though he has agreed to grant at an annual rent, a way across his own land, which cannot be used unless the disputed road be established, Peake Ca. 18. Upon an indictment against a township, charging the inhabitants with the liability to repair all roads within the township, an inhabitant of the adjoining township of N. is competent to prove that the road which extended through N. was a public highway, Rex v. The Inhabitants of Pilling, Stark. on Evid. Appendix, to p. 673.

Of a view. It may frequently be requisite on the part either Of a view. of the prosecutor or defendant, that the jury should have a view of the place indicted. This cannot, it seems, be granted by the judges at the assizes, 1 Sess. Cas. 180. 2 Barnard, 214. ante, vol. i. 378, 483, but may be obtained by removing the proceedings into the King's Bench by certiorari, which will, on proper affidavits, be granted. We have already seen that the forms on this occasion will be, in general, similar to those which are observed in civil proceedings, ante, vol. i. 483.

New Trial. Although the trial of a prosecution for not re- New trial. pairing highways is, in general, a mere contest respecting a civil liability, as the proceedings are in form criminal, the court, after verdict for the defendant, will not grant a new trial; but, if the nuisance in question continues, the continuance will form a distinct offeuce, for which he may be again indicted, 6 East, 315. Ante, vol. i. 657.

[ 575 ]

Judgment. As the object of this prosecution is not the punish- Judgment. ment of the defendant, but the repair of the highway, it is not indispensably requisite that he should be in personal attendance at the time judgment is pronounced upon him, and where a district is indicted, this is of course impossible. 1 Salk. 55, 6. Hawk. b. 2. c. 48. s. 17. ante, vol. i. 695, 6. Where an individual has been found guilty, he may obtain a rule to show cause why his personal appearance may not be excused, on his agent's engaging to pay such fine as the court may assess; and if the prosecutor acquiesce, or no sufficient reason to the contrary is shown, the court will make a rule absolute, and give the judgment in the defendant's absence, vol. i. 696. The judgment against the defendants usually is, that they should pay a fine VOL. III.

B

and repair the nuisance, Bro. Abr. Nuisance, 49. 8 T. R. 142, 3. But if a justice of the peace grant a certificate that the road is now in good condition, the court will merely assess a small fine, as 6s. 8d. or 13s. 4d. 13 East, 164. 3 Smith, 575. 6T. R. 635. And if the certificate state that the way has since been diverted by the order of two justices, and that so much of the old way as is retained is in repair, the sentence will only be passed for the nominal penalty, 13 East, 166, 7. And, therefore, to give a false certificate is an indictable offence as obstructing the course of justice, and may be the subject of a conspiracy between the magistrates and the persons who procured their assistance, 6T. R. 619. Williams, J. Highways, XII. Where an individual indicted for not repairing when bound to do so ratione tenure, applies to the court to submit to a small fine, on a certificate that the road is put in good repair, which is refused, and afterwards on the trial it appears that the repair has been actually effected between the former request and the trial, the court will refuse to set a nominal fine, unless the costs of the prosecutor are paid subsequent to the former application, 5 T. R. 272. Hullock, 553. By the 3 Geo. 4. c. 126. s. 110. where the parish, &c. is indicted for the non repair of a turnpike road, the court are to apportion the fine between the parish and the trustees or commissioners, &c. The fine is not to be returned into the Exchequer, but paid to such person as the court shall order, and applied to the repair of the road in question. And if, after the conviction of a parish, the fine assessed be levied on individual inhabitants, those persons may complain at the special sessions, and the justices there assembled are to cause a rate to be made, reimbursing them for the money they have expended, 15 Geo. 3. c. 78. s. 47. An application for this rate to be made ought to be made within a reasonable time after the fine has been levied, and before any material change of the inhabitants; and the court of K. B. refused a mandamus to the justices to make such a rate after an interval of eight years, though applications had been from time to time made to the magistrates below in the interval, who declined to make the rate, on the ground that the parish at large had been improperly indicted and convicted, the onus of repair being thrown by immemorial custom on an interior district, and though so lately as the year before the application the magistrates had ordered an account to be taken of the quantum expended upon the repairs out of the money levied, 12 East, 366. But justice will not be sa