Indictment against a raker cleanse the streets (b). things belonging to their office in that behalf) that all the highways, streets and lanes in the said parish, in the county aforesaid, should be cleansed of dirt and filth, and during the whole time aforesaid, did take upon themselves the said A. B. and C. D. the said office of such scavengers as aforesaid, and that during the time they the said A. B. and C. D. were such scavengers, to wit, on the same, &c. aforesaid, and on divers other days and times as well before as afterwards, divers large quanti-. ties of dirt and filth were put, placed and laid in and upon the said ways, streets and lanes by persons to the jurors aforesaid as yet unknown, nevertheless the said A. B. and C. D. the duty of their office in this respect neglecting, on the said, &c. and on the said other days and times respectively at, &c. aforesaid, the common highways, streets and lanes aforesaid, did not cleanse or cause to be cleansed of the dirt and filth aforesaid, but then and on the said other days and times respectively did unlawfully and contemptuously permit and suffer, and still do permit and suffer the said dirt and filth to be, lie and remain in the said common highways, streets and lanes within the parish aforesaid, in the county aforesaid, to the great damage and common nuisance, as well of all the liege subjects of our said lord the king there inhabiting and residing, as of all other the liege subjects of our said lord the king there passing, repassing and labouring, in contempt, &c. to the evil example, &c. and against the peace, &c. (a). That T. L. late of, &c. on, &c. and long before, was and for neglecting to yet is one of the rakers for the liberty of Saffron Hill, Hatton Garden, and Ely Rents, within the said parish, and during the whole time aforesaid, did take upon himself to execute the office of raker of the streets, lanes, alleys and passages within the same liberty; and that during the time he the said T. L. was such raker as aforesaid, to wit, on the same, &c. aforesaid, and on divers other days and times, as well before as afterwards, divers large quantities of dust, dirt, ashes, filth and soil, were put, placed and laid in and upon the said streets, lanes, alleys, and passages, by persons to the jurors aforesaid as yet unknown, and that the said T. L. on the said, &c. and on the said other days and times respectively, at, &c. aforesaid, did unlawfully (a) Quære, no conclusion as in the next precedent, contrary to the form of the sta tute, &c. (b) Cro. C. C. 539, 7th edit. See last precedent and note. and contemptuously neglect and refuse to carry away or cause to be carried away the said dust, dirt, ashes, filth and soil, from and out of the said streets, lanes, alleys and passages, or any of them, to the great damage and common nuisance as well of all the liege subjects of our said lord the king there inhabiting and residing, as of all other the liege subjects of our said lord the king there going, passing and labouring, in contempt, &c. to the evil example, &c. against the form of the statute, &c. and against the peace, &c. [ 589 ] INDICTMENTS, &c. FOR NOT REPAIRING BRIDGES. PRELIMINARY NOTES (a). As to the offence.-The repair of bridges is subject to nearly The offence. the same rules as affect highways. As a highway, of common right, is to be repaired by the parish in which it lies, public bridges are to be amended by the county in which they are situate, 2 Inst. 701. 2 East, 349. 12 East, 192; and see recital in 43 Geo. 3. c. 59. But if the bridge be within a city or town corporate, the inhabitants thereof are to repair it; if situate within a riding, then the inhabitants of the riding, see 22 Hen. 8. c. 5. 2 East, 342. 2 M. & S. 513. 362. This liability of the county is not confined to the bridge itself, but extends to the highway for three hundred feet on both sides of it, 7 East, 588. 5 Taunt. 284. 2 Dow. Rep. 1. 4 B. & A. 623. This addition to the bridge existed at common law, being considered as intimately connected with it, and arising from the difficulty of ascertaining its precise limits from the continuation of arches on each side of the river, 7 East, 596. So that any person or public body bound to repair a bridge, are also bound prima facie to amend the adjacent road for this distance, 7 East, 588. 2 Dow. Rep. 1. 5 Taunt. 284. If part of a bridge be within one county, &c. and the other part within another county, &c. then each county is to repair that part of the bridge which is within it, 22 Hen. 8. c. 5. s. 3. and see 3 D. & R. 388. 2 B. & C. 166. The county is, of common right, chargeable with the repair not only of bridges used by carriages, but (a) See, in general, 2 Inst. €97 to 706. Bac. Ab. Bridges. Burn, J. Bridges. Williams, J. Bridges. Dick. J. Bridges, and such also as are intended for horses and foot passengers only, so that they are public, which they are presumed to be, 12 East, 192. 13 East, 95; and to constitute such public bridge, it is not necessary that it should be always open, but if the public use it, at particular seasons, it will suffice, 2 M. & S. 262. A bridge used only on occasion of floods, and lying out of and along side the road, is a public bridge, and the public are liable to repair it. 1 Ry. & M. Ni. Pri. Rep. 144. Individuals may, however, be bound to repair either by the tenure of lands or by ancient usage, 2 Inst. 700: but, as in the case of highways, no private individual can be liable by mere prescription, without some land in respect of which he is charged, or some profit to balance his expences; though it [ 590 ] is otherwise with bodies corporate, id. ibid.; and in 1 B. & A. $59, Lord Ellenborough, C. J. said, "As the case of parishes and highways within them is analogous to that of counties and bridges, the charge of repairing a highway shall fall upon the parish, in default of usage and custom to charge the particular portion of the parish wherein it is situate; and as a hundred or parish, or other known portion of a county, may by usage and custom be chargeable to the repair of a bridge erected within it; so in like manner a township or other known place of a parish, may by usage and custom be chargeable to the repair of the highways within it; and upon an attentive perusal of the passages of Lord Coke's commentary, we think it plain, that in drawing the distinction between bodies politic and natural persons, the learned writer speaks of individual persons, and not of an aggregate of the inhabitants of parishes or other places." If a person build a bridge, which is useful to the county, they and not he are liable to the subsequent repairs, 5 Burr. 2594. 2 Bla. Rep. 685. 13 East, 220. 12 East, 192. 5 Taunt. 289. 292. So that where a miller, for his own profit, deepens the water at a ford which before was inconvenient to the public, and builds a bridge in its room, he will not be liable to repair, though he continues the water of a depth which prevents any other passage, 2 M. & S. 513. And the county or riding are even liable to repair a bridge erected by commissioners under an act of parliament, though the latter are empowered to raise tolls in order to support it, 2 East, 336. But when an act of parliament appoints trustees for taking .down an old bridge and building a new one in its room, the county is not liable to repair until the purposes of the act are accomplished, and the powers it confers cease to operate, 16 East, 305. And where certain persons and their successors were authorized by act of parliament to make a river navigable, and to cut the soil of any persons for making any new channel, &c. by virtue of which they cut through a highway, and rendered it impassable, and a bridge was built over the cut, over which the public passed, and which had been repaired by the proprietors of the navigation, it was held that the proprietors, and not the county, were liable to repair, 3 M. & S. 526; so where a canal company cut and deepened a ford across a highway, and thereby rendered a bridge necessary for the use of the public, which they built, it was held that they were bound to repair it, the bridge being necessary for the purposes of the company, and not for the purposes of the public, 14 East, 317. And if a bridge of a slight and incommodious nature, and evidently intended to throw a burthen on the county be erected in a highway, it may be indicted as a common nuisance, and, as such, be abated, 2 East, 348. Where an entire estate or manor is liable to the repair of a bridge, and the estate or manor is afterwards divided amongst several, they are each severally liable to the whole charge, 1 Salk. 357. 3 Salk. 77. 6 Mod. 150. 1 Holt, 128. Where there has been a foot bridge over a river which a particular district are bound to maintain, and the district widen and enlarge it so as to convert it into a bridge for carriages, or rebuild it on such an extended scale in another place, and make it as such a matter of public benefit, the county will be bound to support it as a carriage bridge, and the district will contribute to the repair a similar sum to that which they would have expended had it remained for the accommodation of foot passengers only, 5 Burr. 2594. 2 Bla. Rep. 685. 2 East, 353, n. a. Where a house adjoining a public bridge is in so dilapidated a condition as to obstruct the passage, the occupier, though merely tenant at will, and consequently not liable to repair as between himself and his landlord, will be compelled by reason of his possession, so far to repair as to prevent the continuance of the obstruction. In such a case, it will be improper to charge him as liable ratione tenure, though sucha description will not be fatal, as it will be intended of residence and not of service, 2 Ld. Raym. 856. The mode in which the necessary sums may be raised for defraying the expences of bridges is directed by 22 Hen. 8. c. 5. commented upon at large by Lord Coke, 2 Inst. 700 to 706. see also 12 Geo. 2. c. 29. s. 1. 54 Geo. 3. c. 90. s. 2. and 55 Geo. 3. c. 143. And in order to protect the county from the charge of repairing bridges which in point of utility were not equal to the expence, the 43 Geo. 3. c. 59. enacts that they shall not be bound to sustain any bridge erected after the passing of that act, unless it be built in a substantial or commodious manner, under the direction or to the satisfaction of the county surveyor, or a person appointed by the sessions, [591] s. 5; but the regulation does not extend to bridges which an individual is liable to repair by reason of tenure, or a corporation by virtue of prescription, s. 7. As to who are inhabitants within this act, see 2 Iust. 702. Those who are bound to repair bridges are also, it should seem, liable to widen them if necessary, 6 T. R. 194. 3 Bos. & Pul. 354. 43 Geo. c. 59. s. 1. & 2; and must make them of such height and strength as to resist and be answerable to the course of the water, whether it continues in its old channel or forms a new one, and they are not liable to actions of trespass if they enter any adjoining land for this purpose, or to deposit the requisite materials, Hawk. b. 1. c. 77. s. 5. By 55 Geo. 3. c. 143. s. 5. county bridges repaired under contract may be repaired without presentment. Modes of prosecution. Modes of Prosecution.-The 22 Hen. 8. c. 5. enacts, "that the justices or four of them at least shall have power to inquire, hear, and determine in their general sessions all manner of annoyances, of bridges broken in the highways, and to make such process and pains upon every presentment against such as ought to amend them, as the King's Bench usually doth, or as it shall seem by their discretions to be necessary and convenient for the speedy amendment of such bridges." In the construction of this provision, it is laid down, that where the franchise in which the bridge lies, has not four justices and a sessions of its own, the magistrates from the county must inquire, and if it be a county of itself, the case is not within the statute, and the common law remedies must be pursued, 2 Inst. 702. And, by the direction of the same act, where the bridge is in one jurisdiction and the persons or body corporate bound to repair reside in another, the proceedings may be commenced in that where the nuisance arises, and process against the defendant may be afterwards awarded into any county where he may be residing. This statute is confirmed by 1 Ann. sess. 1. c. 18. except so far as the proceedings are altered by the last provision. This act empowers justices on presentment before them, to lay such a sum on every parish towards the repair as each has been accustomed to collect; it directs the |