township for not That before and upon, &c. there was, and continually from Against the inthence hitherto hath been and still is, a certain common and habitants of a public king's highway, leading from, &c. to, &c. used for all the liege subjects of our said lord the king, 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 highway, situate, lying, and being in the township of, &c. being in the corner of a certain field in the said township, called, &c. in the occupation of, &c. and extending from thence to the corner of a certain lawn in the said township, belonging to one, &c. and containing in length 242 yards, and in breadth 8 yards, on, &c. aforesaid, and from thence continually afterwards, until the day of taking this inquisition, at the township aforesaid, in the county aforesaid, 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, through the same way with their horses, coaches, carts, and waggons, 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, through the same way going, returning, passing, riding, and labouring, and against the peace, &c. and that the said inhabitants of the said township of, &c. in the county aforesaid, the common highway as aforesaid, so as aforesaid being in decay, ought to repair and amend when and so often as it shall be necessary (b). habitants of a That before the day of taking this inquisition, by a certain Against the inact of parliament made in the parliament of our lord the now township for not king, at a session thereof holden at Westminster in the tenth repairing a road set out by the year of his reign, intitled "An act for dividing and inclosing commissioners such of the open parts of the district called the Forest of under inclosure acts (c). Knaresborough in the county of York, as lie within the eleven (a) From the MS. of a barrister. See the precedents and notes, ante, 580 to 584, and the general precedent and notes, ante, 576, and general note, ante, 565 to 576. (b) If a public act of parliament created the liability, this conclusion might suffice, but otherwise it ought to state 581. (c) As to the necessity for setting out other parts of act, 1 M. & S. 435. See precedent, 2 Stark. 698. constableries thereof, and for other purposes therein mentioned," it was (amongst other things) enacted, that C. D., E. F., &c. and their successors, to be nominated and appointed in manner therein after mentioned should be, and they were thereby ap pointed, commissioners for setting out, dividing, assigning, and allotting all the open commonable grounds and waste lands within the said eleven constableries, and for putting the said act [ 585] in execution, and that the said commissioners, or any three or more of them should, and they were thereby required, to set out and appoint, &c. [state the clauses in the act applicable to the case,] (a) as in and by the said act, reference being thereunto had, will more fully and at large appear. And the jurors aforesaid, upon their oath aforesaid, further present, that after the making of the said act, and before the day of the taking of this inquisition, that is to say, by a certain other act of parliament made in the said parliament at a session thereof holden at Westminster in the 14th year of the reign of our said lord the now king, intitled "An act to amend an act passed in the tenth year of the reign of his present majesty, intitled "An act for dividing and inclosing such of the open parts of the district called the Forest of Knaresborough in the county of York, as lie within the eleven constableries thereof, and for other purposes therein mentioned," it was (amongst other things) enacted [setting out the material part of act,] as in and by the said last-mentioned in part recited act, reference being thereunto had, will more fully and at large appear. And the jurors aforesaid, upon their oath aforesaid, further present, that afterwards, and after the making and passing of the said several acts of parliament, and before the day of the taking of this inquisition, to wit, on, &c. at, &c. the said C. D., E. F., &c. in the said first in part recited act mentioned respectively, pursuant and in obedience to the said several acts, took upon themselves the execution of the several powers and authorities reposed in them in and by the said several acts, as such commissioners ast aforesaid. And the jurors, &c. further present, that after the making and passing of the said several acts, and after the said commissioners had taken upon them the execution of the powers and authorities so vested in them by the said several acts as aforesaid, and immediately after the said commissioners had (a) As to the statement of the statute and enactments, see ante, vol. i. 275, &e. made the aforesaid division and settled all the said several allotments pursuant to the directions of the said acts, to wit, on, &c. at, &c. they the said commissioners did form and draw up, and cause to be fairly engrossed on parchment, and did duly execute under their hands and seals, a general award or instrument, in manner and form as was by the said first in part recited act directed, and by their said general award, amongst other ways and roads therein set out and appointed, did also set out and award, and did award the same to be for ever carriage roads, a certain part of the said open commonable grounds and waste lands called, beginning at and leading westward to and a certain other part, &c. beginning at — and leading southward to, which said two roads, in pursuance of the powers given to the said commissioners by the second act, they the said commissioners did thereby award to be made and kept in repair by the said inhabitants and occupiers of lands and tenements within the township of -————, and did thereby award that the roads should be called by the names above mentioned as by the said award, reference being thereunto had, will more fully and at large appear. And the jurors, &c. further present, that the said last-mentioned roads were and are roads leading into, through and adjoining the said allotments in the said second act mentioned, to wit, at the township of aforesaid. And the jurors, &c. that a certain part, to wit, yards in length and yards in breadth of the said carriage roads so set out and appointed to be carriage roads for ever as aforesaid, afterwards, and after the making of the said award of the said commissioners in manner and form aforesaid, and after the said roads had been completed, made and found as required by the said act, to wit, on, &c. and from thence continually until the day of the taking of this inquisition, to wit, at the township of aforesaid, in the county aforesaid, were and still are miry, ruinous, broken, and in great decay for want of the due reparation and amendment of the same, so that the liege subjects of our said lord the king by themselves and with their horses, coaches, carts and carriages could not, during all 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 through the same carriage roads going, returning, passing, riding and labouring, contrary to the form of the acts of parliament aforesaid, and against the peace of our said lord the king, his crown and dignity, and that the inhabi [586] Against the mayor, &c. of Carlisle, for not tion of tolls (a). tants and occupiers of lands and tenements within the said township of, in the county of aforesaid, the said carriage roads, so as aforesaid being in decay, by force of the said several acts, and by virtue of the said general award, so in pursuance thereof by the said commissioners made as aforesaid, ought, during the time last aforesaid, to have repaired and amended, and still ought to repair and amend, when and so often as it hath been or shall be necessary. Cumberland. That from time whereof the memory of man is not to the contrary, there was and has been a certain ancient and repairing an high- common king's highway, leading from a certain village called B. way which they are bound to re- in the said county of C. into a certain lane called S. lane, in pair in considera- the parish of S. in the city of C. in the said county, for all the liege subjects of our said lord the king and his predecessors, kings and queens of this realm, by themselves, and with their horses, coaches, carts and carriages to go, return, pass, repass, ride and labour, at their will and pleasure, and that a certain part of the king's highway, containing in length yards, [587 Averment that the corporation ought to repair as owners of tolls. and in breadth feet, and lying in a certain street called Black Friers Street, in the parish of Saint Cuthbert aforesaid, in the city of Carlisle aforesaid, on, &c. and continually from thence afterwards until the day of the taking of this inquisition, at the said parish, in the said city of C. and county of C. was and yet is miry, ruinous, broken, dirty, and in great decay, for want of the due reparation and amendment of the same, so that the liege subjects of our said, lord the king through the same way, by themselves and with their horses, coaches, carts and carriages, could not, during the time aforesaid, nor yet can, go, pass, repass, ride and labour, without great danger of their lives and 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. And that the mayor, aldermen, bailiffs and burgesses of the city of Carlisle aforesaid, by reason of their being entitled to and taking and receiving of certain tolls for the passage of cattle and loaded (a) See precedent, 4 Wentw. 157, and another form, id. 178, which seems not to state the tolls and liability sufficiently fully; as to the neces sity for showing the liability, see ante, 571, 2, and the precedents and notes, ante, 580, &c. carriages through the said city of Carlisle during all the time aforesaid, the common highway aforesaid, above particularly mentioned and described (so as aforesaid being in decay) have been 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 as often as occasion hath required, and have not done it, &c. [There were two other counts like the first, for other parts of the highway.] vidual bound to [Same as the general precedent, ante, 576, to the asterisk, Against an iudiand then proceed thus:] And that A. B. late of, &c. esquire, repair ratione ought, by reason of his tenure of certain lauds, situate, lying, teuuræ (a). and being in the said parish of, in the county aforesaid, to repair and amend the said highway, so being ruinous and in decay as aforesaid, when and as often as it should or shall or may be necessary. other form. [Same as the general precedent, ante, 576, to the asterisk, The like in anand then proceed as follows:] And that C. D. late of, &c. by reason of his tenure of certain lands and tenements called, &c. lying and being in the said parish, ought to repair and amend that part of the highway aforesaid, so as aforesaid being ruinous, miry, deep, broken, and in decay, when and so often as there should be occasion and need, as the said C. D. and all those who held the said lands and tenements for the time being, from time whereof the memory of man is not to the contrary hitherto were used and accustomed, and of right ought to do, and the said C. D. still of right ought to do, and that the said C. D. hath not yet done the same, &c. That A. B. late of, &c. and C. D. late of, &c. and long before were and still are scavengers within the said parish, in the county aforesaid, duly elected by the inhabitants of the said parish diligently to supervise, order and direct (amongst other (a) As to the requisites of this indictment, see ante, 571, 572, and precedents, Cro. C. C. 8th edit. 319. Cro. C. A. 400. (b) From Cro. C. C. 538. 7th edit. This indictment, and the following, are framed upon 2 W. & M. c. 8. s. 5. which directs the duty of scavengers VOL. III. C and rakers, and consequently Against scavengers for not cleansing the streets (b). [ 588 ] |