Against inhabit on, &c. and continually afterwards, until the day of taking this inquisition at the said parish of H. were and yet are very ruinous, miry, decp, 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, passing and travelling through the same way, with their horses, coaches, carts, and carriages, could not, during the time aforesaid, nor yet can, go, return, pass, 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, passing through that way, and against the peace, &c. and that the inhabitants of the said parish of H. the said parts of the said highway, so as aforesaid, being in decay, ought to repair aud amend, when and as often as the same shall be necessary. [Commencement as ante, 576.] That on, &c. there was, ants of parish for and from thence hitherto there hath been and still is, a certain not repairing an ancient horse and common and ancient pack and prime way (b), leading from the foot way, called a pack and prime village of L. in the county of S. to the village of D. in the way (a). [ 580 ] same county, for all the liege subjects of our lord the king and his ancestors, on horseback and on foot, to go, return, pass, repass, ride, labour, and drive their cattle, at their free will and pleasure; and that a certain part of the same common pack and prime way, situate, lying, and being within the parish of G. in the county aforesaid, containing in length three hundred yards, and in breadth five yards, on, &c. and continually afterwards, until the day of the taking of this inquisition, at, &c. 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 by the same way, with their horses and cattle, could not, during the time aforesaid, no yet can, go, return, pass, repass, ride, and labour, as they ought and were wont to, 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, through the same way going, returning, passing, repassing, riding, and labouring, and against the peace, &c. (a) See form, Cro. C. C, 8th edit. 307, 8. (b) So called because it is a footway, which was the prime or first kind of path, and is a horse or pack way also, Co. Lit. 56. See the general precedent and notes, ante, 576, 7, and the general note, aute, 565 to 576, And that the inhabitants of the said parish of G. in the county aforesaid, the same common pack and prime way so as aforesaid being in decay, ought to repair and amend, when and so often as it should or shall be necessary. cular division of That on, &c. and long before, there was, and from thence- Against a partiforth continually hitherto there hath been and still is, a certain a parish for not common king's highway, leading from H. in the West Riding of repairing an high, way (a). the county of Y. towards and unto H. in the West Riding aforesaid, used for all the liege subjects of our said lord the king, to go, return, pass, and repass, on foot and horseback, and with cattle, carts, and carriages, at their will and pleasure, and that a certain part of the said common king's highway, situate and being in that part of L. which lies within the constablery of Q. in the parish of A. in the riding aforesaid, beginning at M. in the parish aforesaid, in the riding aforesaid, and extending from thence to a certain place called D. and containing, in length, divers, to wit, yards, and in breadth, divers, to wit, feet, on, &c. and from thence continually until the day of taking this inquisition, at that part of L. aforesaid, which lies within the constablery of Q. aforesaid, in the parish aforesaid, in the riding aforesaid, was, and still is, very, &c. [describe the state of the road as in the precedent, ante, 577,] and that within the parish of A. aforesaid, in the riding aforesaid, from time whereof the memory of man is not to the contrary, there have been and still are, divers townships, districts, divisions, and places, whereof that part of L. aforesaid, which lies within the constablery of Q. aforesaid, during all the time last aforesaid, hath been and still is one, and that the inhabitants of that part of L. which lies within the constablery of Q, aforesaid, in the parish aforesaid, from time whereof the memory of man is not to the contrary (b), have repaired and amended, and have been used and accustomed to repair and amend, and of right ought to have repaired and amended, and still of right ought to repair and amend, when and so often as it hath been or shall be necessary, such and so many of the (a) See a general precedent, and the notes, ante, 576, 577. 4 Wentw. 160. 157. 178. 184. Cro. C. C. 320. 1 B. & A. 348, and general note, ante, 565 to 576, and as to the necessity of shewing the obligation to re pair, see 2 T. R. 513. Andr. (b) As to the necessity for [ 581 ] . Second count. common highways, situate and being within that part of L. aforesaid, which lies within the constablery of Q. aforesaid, as would otherwise be repairable and amendable by the inhabitants of the said parish at large, and that the said part of the same common highway hereinbefore mentioned to be ruinous, deep, miry, broken, and in decay as aforesaid, now is, and during all the time when the same part of the said common highway is above alleged to be ruinous, deep, miry, broken, and in decay as aforesaid, was a common highway, which, but for the said prescription or (a) usage would be repairable and amendable by the inhabitants of the said parish of A. at large; and that by reason of the premises, the inhabitants of that part of L. which lies within the constablery of Q. aforesaid, in the parish aforesaid, during all the time last aforesaid, ought to have repaired and amended, and still ought to repair and amend the same part of the said common highway, so being ruinous, deep, miry, broken, and in decay as aforesaid, when and so often as it hath been and shall be necessary. [The second count states the prescription, thus:] That within the parish of A. aforesaid, in the Riding aforesaid, from time whereof the memory of man is not to the contrary, there have been and still are divers townships, districts, divisions, and places, whereof that part of L. which is within the constablery of Q. aforesaid, during all the time last aforesaid, hath been and still is one; and that the inhabitants of the said several and [582] respective townships, districts, divisions, and places respectively, from time whereof the memory of man is not to the contrary have repaired and amended, and have been used and accustomed to repair and amend, and of right ought to have repaired and amended, and still of right ought to repair and amend, independent of each other, when and so often as it hath been or shall be necessary, such and so many of the several and respective common king's highways, respectively situate and being within the said respective townships, districts, divisions, and places as would otherwise be repairable and amendable by the inhabitants of the said parish of A. at large. For not repairing an highway, against inhabit ants of parish, ex [Commencement as ante, 576.] That on, &c. next after the making and passing of a certain act of parliament passed in (a) Quare, if this should not be in the conjunctive “and.” the 19th year, &c. intituled, "An act for repairing and widen- cept those of a township exempting the road from, &c. to, &c." [set out the title of the act,] ed by special J. P. &c. [here set out the names] being sixteen of the trustees provision (a). appointed by the said act to put the same into execution, at a meeting held on, &c. at, &c. made an order that the said road from S. to W. being part of the road by the said act directed to be ordered, altered, widened, turned, and repaired, and part thereof being in S. parish in the same act mentioned, should be forty feet wide, &c. [state the terms of the order.] And the jurors, &c. do further present, that at another meeting of the said trustees, held on, &c. it was ordered that the footway should be on the West side of the road through S. parish, &c. [stale the terms of the second order.] And the jurors, &c. do further present, that afterwards, to wit, on, &c. the said road in the said orders mentioned, in such part thereof as was and is lying in the said parish of S. was in pursuance of the said order made and perfected, and then and there, by virtue of the said orders respectively and of the said act, became and was and ever since hath been a common public king's highway for all the king's subjects, with their horses, coaches, carts, and carriages to go, return, pass, repass, ride, and labour, at their free will and pleasure, and that afterwards, to wit, on, &c. a certain part of the said common king's highway in S. parish, in, &c. aforesaid, [particularly describing it,] and continually from that time was and is ruinous and out of repair; and that the inhabitants of the said parish of S. (except the inhabitants of the township of S.) ought to repair and amend the same, when and so often as shall be necessary. do further present, that on, &c. aforesaid, And the jurors, &c. Second count. there was and yet is a certain common king's highway, leading from, &c. aforesaid, to, &c. aforesaid, for all the liege subjects, &c. [as before,] and [583] that a certain part of the said common king's highway, situate and being in S. parish, [particularly describing it,] on the said, &c. of and continually from that time until, &c. was and yet is very ruinous and out of repair. And that the inhabitants of the parish of S. (except the inhabitants of the township of S. who are exempted from the repair thereof, by virtue of an act of parliament passed in the 19th year, &c.) ought to (a) This indictment was held good on demurrer, see 2 T. R. 106. See general precedent and notes, ante, 576, and ge- repair and amend the same, when and as often as shall be necessary, &c. Against the [Commencement as ante, 576.] That on, &c. there was, and township for not from thence hitherto hath been, and still is a king's common repairing road (a) highway leading from the market-town of C. in the said county, towards and into the market-town of S. in the county of Y., used for all the liege subjects of our said lord the king and of his predecessors, with their horses, coaches, carts, and other carriages, to go, return, pass, repass, 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 in the township of T. in the county of L. aforesaid, beginning at a certain bridge there called Kirkbridge and ending at a certain place there called Lancashire Gill, containing in length two thousand two hundred yards, and being of the breadth of three yards, on, &c. and continually afterwards, until the day of the taking this inquisition, was and still is in great decay for the want of due reparation, amendment, and enlargement of the same, so that the subjects of our said lord the king passing and travelling through the same 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, to the great damage and common nuisance of all the liege subjects. of our said lord the king, passing through the same way, and against the peace of our said lord the king, his crown and dignity. And that the inhabitants of the said township of T. in the said county of L. from time whereof the memory of man is not to the contrary, have repaired (b) and amended, and have been used and accustomed to repair and amend, and of right ought to have repaired and amended, and still of right ought to repair and amend the said highways so in decay as aforesaid, when and so often as it hath been and shall be necessary (c). (a) See precedents, 4Wentw. 160. 6 Wentw. 413. Ante, 580, and the general precedent and notes, ante, 576, and the general note, ante, 565 to 576. (b) See 5 Burr. 2702. Ante, (c) The liability appears not to be sufficiently stated in 4 Wentw. 160, and 6 Wentw. 413. See 5 Burr. 2700. 2T. R. 11. 2 Saund. 158, n. 9. Ante, 571, 2. |