tisfied with a payment of the fine, for a distringas will be issued in infinitum, until the road is put in a state of sufficient repair, 1 Salk. 359. 6 Mod. 163. [ 576 1 Costs. It is enacted by 13 Geo. §. c. 78. s. 64. that it shall Costa. be lawful for the court, before whom any indictment or presentment shall be tried for not repairing highways, to award costs to the prosecutor to be paid by the defendants, if it appear to the court that the defence was frivolous, or to the defendants to be paid by the prosecutor if the court shall think that the prosecution was vexatious, ante, vol. i. 828, 9. Under this clause, the application must be made to the judge who tries the indictment, and, if this be omitted, the King's Bench will not afterwards interfere, 5 T. R. 272. But no precise form of certificate scems to be necessary, and if it be stated on the back of the record that the defence was frivolous, this will suffice, without proceeding to award costs to the prosecutor, 6T. R. 344. The sessions before whom a parish is acquitted upon the trial of an indictment for not repairing a highway, may, by their order, award C. and E. to pay costs to the parish, although the names of C. and E. be not on the back of the indictment, and although the indictment originated in a presentment of A. and B. constables, whose names are on the indictment; and it is enough if the order is entitled as in the prosecution of C. and E. without shewing further that C. and E. are prosecutors; neither need it appear on the face of the order that the indictment was tried, if that appear by the record of the proceedings; and the order is good in form if it be for the payment of the costs to the solicitor of the parish, 4 M. & S. 203. If a surveyor of a parish conduct or defend a proceeding in its name, aud with its concurrence, he may charge the sums in his account, which he has been obliged to disburse, 13 Geo. 3. c. 78. s. 65. And it has been holden, that if a justice of the peace indict for a road being out of repair, and the defendant removes the proceedings by certiorari, the magistrate will be entitled to his costs under 5 & 6 W. & M.. c. 11. s. 3. as a party grieved by the nuisance, 5 T. R. 33. Several persons were held entitled to costs under the 5 W. & M. c. 11. as prosecutors of an indictment removed by certiorari, one as constable of the manor within which the highway lay, the others as parties aggrieved, they having used the way for many years in passing and re-passing from their homes to the next market town, and being obliged by reason of the want of repair, to take a more circuitous route, 3 M. & S. 465. As to where the court will impose more than a nominal fine when costs have not been paid, see 5 T. R. 272. Ante, 575. Indictment against inhabit ants of parish for not repairing a common highway (a). INDICTMENTS, &c. FOR NOT REPAIRING Surrey, (to wit.) The jurors for our lord the king, upon their oath present, that on, &c. (b) there was, and from thence hitherto there hath been, and still is (c), a certain common and public king's highway (d), leading from A. in the county of S. towards and unto B. in the same county (e), for all the liege subjects of our said lord the king, to go, return, pass, and repass, ride, and labour, on foot and on horseback, and with their horses, coaches (f), carts, and carriages (g), in and along the same, at their free will and pleasure (h), and (i) that a certain part of the same common and public highway, situate, lying, and being in the parish of G. in the county of Surrey afore (a) See other precedents. against a parish, Cro. C. C. 8th edit. 307, 8, 9, 320. 4 Wentw. 162, 170. 174. 179. 184. 6 Wentw. 406 to 410. 4 Burr. 2090. Stark. 692 to 701. and the general note, ante, 565 to 576. (b) This should be some day when the highway was first out of repair, but the precise day is not material. (c) The allegation in the older precedents was thus, "that there now is, and from time whereof the memory of man is not to the contrary, there was, a certain, &c." but this allegation is unnecessary and injudicious, ante, 570, and see Cro. C. C. 8th edit. 321. Sometimes the form runs, "that long before and at the time of the commencement of the nuisance hereinafter mentioned, there was and of right ought to have been, and still of right ought to be, a certain common, &c." (d) The term "highway" would suffice, ante, 570. 3T.R. 265. 2 Saund. 158, n. 4. (e) It does not seem to be necessary, though usual, to state the termini, ante, 570, but see forms of stating them, Cro. C. C. 8th edit. 307, 8. 321. (f) The word "coaches" is usually inserted, though they came into use long since time of legal memory. Chitty App. Law, 118. If the indictment state that the way was immemorial, it would be prudent to omit the word "coaches." (g) See post, 592. (h) If the way be public only at particular times of the year, the same should be stated accordingly. 4 Campb. 189. Post, 592. (i) It is not necessary that the indictment should contain the statement of a further presentment. said, extending from a certain place called —, to a certain bridge called — (a), and containing in length, divers, to wit, one hundred and twenty yards, and in breadth, divers, to wit, fifteen feet (b), on the said, &c. (c) was, and from thence until the day of the taking of this inquisition, at the said parish of, &c. hath been and still is very ruinous, miry, deep, broken, and in great decay for want of due and needful and necessary reparation and amendment of the same, so that the liege subjects of our said lord the now king, in and along the same way, with their horses, coaches, carts, and carriages, could not, during the time aforesaid, nor yet can go, return, pass, repass, ride, and labour, without great danger of their lives, and the loss of their goods, to the great damage and common nuisance of all the liege subjects of our said lord the king, in and along the same way, going, returning, passing, repassing, riding, and labouring, and against the peace of our said lord the king, his crown and dignity, and that (d) the inhabitants of the said parish of G. in the said county of Surrey, the said common and public king's highway, so being ruinous and in decay as aforesaid, during all the time aforesaid, of right ought to have repaired and amended, and still of right ought to repair and amend, when and as often as it should, or shall, or may be necessary. [When there is any doubt as to the termini of the road, or Second count. any other part of the facts, then counts may be added, varying the description as in 4 Wentw. 170, 1, and in that case it may be prudent to add a general count, omitting any statement of the termini, either of the road or of the parts out of repair, (a) It is usual though unnecessary to state the termini of the part of the road out of repair, ante, 570, 1. See forms which state it, Cro. C. C. 8th ed. 308, 309, 321. 4 Wentw. 162, 171, 179, 184. 6 Wentw. 406. and forms which do not contain the statement, Cro. C. C. 8th ed. 307. 4 Wentw. 170, 175. 2 Stark. 694. The form of presentment given in the stat. 13 Geo. 3. c. 78. contains the termini, and therefore it may be advisable in general to state them when they can be readily ascertained. (4) It does not seem to be (c) The day first named. Presentment of a Judge or justice of the peace of a highway being out of repair, and and merely stating that there was a highway in the parish, and that the same being of such a length and breadth, was out of repair.] [Precedents of these presentments are given ante, vol. ii. 9 and 10. The forms are in a great measure prescribed by 13 Geo. 3. c. 78. s. 24. and schedule No. 32. See also other obligation of the precedents referred to in the notes.] parish to repair, under 13 Geo. 3, c. 78. That long before and at the time of the commencement of [578] the nuisance hereinafter mentioned, there was, and of right For not repairing a part of high- ought to have been, and still is, and of right ought to be, a way situate in a certain common and public king's highway, leading from that parish which lies in two counties, part of the parish of St. A. the less, in the city of B. and against the whole parish (a). county of the same city, which lies near to a certain place then called the lime-kilns, unto a certain place called and known by the name of D. square, in that part of the parish of C. which lies in the county of G. for all the liege subjects of our said lord the king, with their horses, coaches, carts, and other carriages, to go, return, pass, repass, ride, and labour at their will and pleasure; and that a great part of the said parish of C. is situate in the city of B. and county of the same city, and the residue of the same parish is situate in the said county of G. and that a certain part of the said king's common highway, situate, lying, and being in that part of the said parish of C. which lies in the said county of G. commencing opposite to a certain public-house, called and known by the name and sign of, &c. situate in that part of the said parish of C. which lies in the said county of G. near to a certain place called K. and extending towards D. square aforesaid, and containing in length one thousand and five hundred feet, and in breadth fourteen feet, on, &c. and continually afterwards, until the day of the taking of this inquisition, at that part of the said parish of C. which lies in the said county of G. was and yet is very ruinous, miry, deep, broken, and in great decay for want of due reparation and amendment of the same, so that the liege subjects of our said lord the king, in and through the (a) The indictment must be against the whole parish, and not against that part only which lies in the county where the way is out of repair, 5 T. R. 498. The form in Cro. C. C. 8th ed. 320, 1. is defective. This is framed according to the suggestions in 5 T. R. 506. same part of the said way, so as aforesaid being in decay, with their horses, coaches, carts, and other carriages could not, during the time last aforesaid, nor yet can go, return, pass, repass, ride, and labour, as they ought and were wont to do, without great danger of their lives, and the loss of their goods, to the great damage and common nuisance of all the liege subjects of our said lord the king, in and through the same way, going, returning, passing, repassing, riding, and labouring, and against the peace of our said lord the king, his crown and dignity; and that the inhabitants of the said parish of C. in the city of B. and county of the same city, and the inhabitants of the same parish of C. in the said county of G. the said common aud public king's highway, so being ruinous and in decay as aforesaid, during all the time aforesaid, ought to have repaired and amended, and still of right ought to repair and amend, when and as often as it should or shall or may be necessary. [ 579 ] parts of an highway (a). That on, &c. and during all the time hereinafter mentioned, Indictment there was and still is a certain common and ancient king's high- for not repairing against a parish way, leading from the town of M. in the county of N. unto the three distinct town of C. in the county of D. used for all the liege subjects of our said lord the king and his predecessors, with their horses, coaches, carts, and carriages, to go, return, pass, ride, and labour, at their free will and pleasure, and that a certain part of the said king's common highway, situate, lying, and being within the parish of H. in the county of D. beginning at a brook called S. B. and so continuing towards the said town of C. for the length of one hundred and ninety-eight yards, and containing one hundred and ninety-eight yards in length, and ten yards in breadth, and a certain other part of the said king's highway, situate within the said parish of H. beginning twentytwo yards southward from the sixth milestone, leading from M. to C. and so continuing towards the said town of C. and containing three hundred and seventy-four yards in length, and ten yards in breadth, and also a certain other part of the said king's highway, situate within the said parish of H. beginning at one hundred and eighty yards northward, from a bridge called D. L. bridge, and so continuing towards the said town of C. for the length of one hundred and thirty-two yards, and containing one hundred and thirty-two yards in length, and ten yards in breadth, (a) See the two last precedents and notes, and the general note, ante, 565 to 576. |